CPC AND LAW OF LIMITATION

 Case Laws:
1. RachakondaVenkata Rao v. R.Satya Bai, AIR2003SC3322(3325)(Decree)
2. Islamic Academy of Education v. State of Karnataka, AIR2003 SC 3724(3737,3774)
(ratio decendi of judgment to be found on reading entire judgment)
3. Narasimha Rao v. Venkata Lakshmi (1991)2 SCR 821(judgment)
4. A.V.PapayyaSastry v. Govt of A.P., (2007)4 SCC221:AIR 2007 SC 1546 (decree or
order obtained by playing fraud on the court)
5. International Wollen Mills v. Standard Wool (U.K) Ltd.,(2001)5 SCC265:AIR
2001SC2134 (foreign judgment)
6. Church of North India v. LavajibhaiRatanjibhai, AIR2005 SC2544
7. Kiran Tandon v. Allahabad Development Authority, AIR2004SC2006(2010) (Res-
judicata)
8. MadhviAmma Bhawani Amma v. KunjiKutty Pillai, AIR2000SC2301(2303) (Res-
judicata)
9. AmarendraKomalam v. Usha Sinha, AIR 2005SC 2758(2764)( Res subjudice)
10. National Institute of Mental Health and Neuro Sciences v. C.Parameshwara, (AIR
2005 SC 242 (244) (Res sub-judice)
11. Pukhraj D. Jain v. G. Gopalakrishna, AIR 2004 SC 3504 (S.10 and S.151)
12. Gurinder Pal. Jognitteir Singh, (2004)11SCC 219 (Suits to include whole
13. Claim)
14. ONGC v. Utpal Kumar Basu (1994)4 SCC 711
15. Amit kumar Shaw v. Farida Khatoon, AIR 2005 SC 2209 (Suit in name of wrong
Plaintiff)
16. S.ShanmugavelNadarv. State of T.N.,(2002)8 SCC 361 (Mis joinder and Non
17. Joinder)
18. Krishna Vasudevan v. Sharey, (2005)12 SCC180 (Representative Suit)
19. Laxman Prasad v. Prodigy Electronics Ltd. (2008) 1SCC 618
20. HarshadChimanlal Modi v.D.L.F. Universal Ltd., AIR2005SC4446(4451)(DB)
21. KrisnanVasudevan v. Sharey, (2005)12 SCC180
22. Chief Engineer,Hydel Project v. RavindraNath, (2008) 2 SCC350
23. . GulabraoBalwanraoShindev.ChhabubaiBalwantraoShide, AIR2003 SC160 (161)
24. (Pleadings)
25. Alchemist Ltd v. State Bank of Sikkim, (2007)11SCC335: AIR 2007SC1812
(Whether a particular fact averred by a party would constitute a part of cause of
action)
26. Church of North India v. Lavaji Bhai, (2005)10SCC760(S.92, 93,O.1 R.8)
27. Kailash v. Nanhku and ors (2005)4SCC480: AIR 2005 SC2441(Suit against foreign
ruler, ambassador)
28. Union of India v. Karam Chand Thapar and Bros. (Coal Sales) Ltd.,(2004)3 SCC 504
(Set off and Counter Claim)
29. Rohit Singh v. State of Bihar, AIR 2007 SC 10 (Notice)
30. T,A.Ahammed Kabeer v. A.A. Azeez, AIR 2003 SC 2271 (2280) (Discovery,
Inspection, Production of Documents)
31. LekhRaj v. MuniLal, AIR2001SC996(1001)(Commission)
32. Ashutosh v. State of Rajasthan, AIR 2005 SC 3434 (no partnership property shall be
33. attached or sold except in execution of decree against firm or partners)
34. BalrajTaneja v. Sunil Madan, (1999) 8 SCC 396: AIR 1999 SC 3381 (procedure when
party fails to present written statement called for by the court)
 35. Mahesh Yadav and Anr v. Rajeshwar Singh and Qrs, (2009) 2 SCC 205(Appearance
of Parties and Consequences of Non Appearance)
36. Sunil Poddar v. Union Bank of India, (2008) 2 SCC 326 (Issues and Services of
Summons)
37. Transmission Corpn. Of A.P. Ltd v. Lanco Kondapali Power(P) Ltd., (2006) 1 SCC
540 (Injunctions)
38. Kasturi Bai v. Anguri Chaudhary, (2001) 3 SCC 176: AIR 2001 SC 1361
(Appointment of Receivers)
39. Anderson Wright and Co. v. Amarnath Roy AIR 2005 SC 2457 (Delay in Execution
of Decree)
40. Ashutosh v. State of Rajasthan, AIR 2005 SC 3434 (no partnership property to be
attached or sold except in execution of decree against firm or partners)
41. Padma Ben v. YogendraRathore,(2006) 12 SCC 138: AIR 2006 SC 2167 (execution
of decree)
42. Harshad Chimanlal v. DLF Universal Ltd., (2005) 7 SCC 791: AIR 2005 SC 4446
(suit for specific performance of agreement and possession of immovable property
situated outside the jurisdiction of court)
43. NSS Narayana Sharma v. Goldstone Exports (P) Ltd., AIR 2002 SC 251 (Question to
be determined by the court executing decree)
44. ShankerPopatGaidhavi v. HiramanUrnagi AIR 2003 SC 1682 (separate appeal filed,
45. dismissal of one would not affect the maintainability of other)
46. BajranglalShivchandriRuia v. ShashikantN. Ruia, (court will not exercise the powers
under O.41,R.33 without cross objection of plaintiff)
47. Salem Advocates Bar Association, Tamil Nadu v. UOI 2005 (6) SCC 344
48. Union of India v. Paul Manickan, AIR 2003 SC 4622 (Court will not entertain a
review petition with entirely new substratum of issue)
49. Banarsi v. RamPhal, (2003) 9 SCC 606: AIR 2003 SC 1989 (Courts cannot modify
the decree in favor of the respondent in the absence of cross appeal or cross objection,
even under O.41,R.33)
50. Lily Thomas v. Union of India., (2000) 6 SCC 224: AIR 2000 SC 1650 (review not an
inherent power, it is a creature of statute)
51. All Bengal Excise Licensees Assn. v. Raghabendra Singh, (2007) 11 SCC 374: AIR
2007 SC 1386 (tendering of unconditional apology not to absolve parties of violations
of the orders of the court)
52. Union of India v. Pramod Gupta, (2005)12 SCC 1 (52) (appealed from original
decree-by amending the memo of appeal, the original pleading cannot be amended)

53. Oriental Aroma Chemical Industries Ltd. ...Appellant v. Gujarat Industrial

Development Corporation ...Respondents and another Civil Appeal No.2075 of 2010
decided on February 26, 2010 (SC).
54. Aflatoon And Others V. Lt. Governor of Delhi & Others on 23 August, 1974: 1974
AIR 2077, 1975 SCR (1) 802

 PROCEDURAL LAW
Substantive law defines your rights and duties. Procedural law paves the way for your right to
reach the remedy. It gives you the way to reach the remedy when your rights are violated.
 1. Purposes of Procedural Law
a. It helps the courts in conducting their business.
b. Establishing procedures within the court, a uniform procedure throughout the
territory. Helps to avoid multiplicity of procedures.
c. It provides information and instructions to those appearing within the court,
whether they are attorneys or parties. It tells them what they’re meant to do before
the court, the ways they have to adopt to seek the remedy.
 DIFFERENCE BETWEEN SUBSTANTIVE AND PROCEDURAL LAW:
SUBSTANTIVE LAW PROCEDURAL LAW

Defines rights and liabilities. Provides method of implementation.

Defines relationship between people and Tells how to give effect to substantive law.
between people and states. Ancylites substantial law.

Can be both for civil and criminal

 DPSP’s: Substantial or Procedural Right? Cannot be classified as either. Substantive

law’s main work is to create rights. DPSP’s do not create rights for anyone. Are not
justiciable, do not even have remedies. It is just a policy, cannot be law. Also, it is a
part of the Const., therefore cannot be classified.
 No remedy for violation of procedural right, only can get restoration of the right from
an appellate Cases where is a these violations are restored by mayor you know they
play previous state. It means there are there are a few violation of fundamental right
that connected by so isn't that the same as what you are saying like how procedural
violations decide court.
 There is no purely procedural or purely substantive statue. All procedural states have
some provisions which are substantive. Even the CPC has some substantive rights.
 Commissioner of Wealth Tax v. Shravan Kumar Swaroop (1994 Vol 6 SCC 623). In
this judgment, the court decided that Wealth Tax Rule, 1957 (Rule 1PP). The court
has discussed in this judgement what are substantive and procedural laws and why is
it important to distinguish.
I. The distinction between substantive law and procedural provisions has been indicated
in Black's Law Dictionary, (Sixth Edn. P. 1203) as follows: As a General Rule, laws
which fix duties, established rights and responsibilities among and for persons, natural
or otherwise, are 'Substantive Laws' in character, while those which merely prescribe
the manner in which such rights and responsibilities may be exercised and enforce in
a court are 'Procedural Laws.
II. In Salmond's Jurisprudence, (Twelfth Edn. P. 462), the distinction between
substantive law and law of procedure is indicated in the following words: What, then,
 is the true nature of the distinction? The law of procedure may be defined as that
branch of the law which governs the process of litigation. It is the law of actions -- ius
quod ad actions pertinent -- using the term action in a wide sense to include all legal
proceedings, civil or criminal. All the residue is substantive law, and relates, not to the
process of litigation, but to its purposes and subject-matters. Substantive law is
concerned with the ends which the administration of justice seeks' procedural law
deals with the means and instruments by which those ends are to be attained. The
latter regulates the conduct and relations of courts and litigants in respect of the
litigation itself; the former determines their conduct and relations in respect of the
matters litigated.
...What facts constitute a wrong is determined by the substantive law; what facts
constitute proof of a wrong is a question of procedure.
...So far as the administration of justice is concerned with the application of remedies
to violated rights, we may say that the substantive law defines the remedy and the
right, while the law of procedure defines the modes and conditions of the application
of the one to the others.
III. In Izhar Ahmad Khan v. Union of India [1962] Suppl. 3 SCR 235 it is observed: The
division of law into two broad categories of substantive law and procedural law is
well known. Broadly stated, whereas substantive law defines and provides for rights,
duties, liabilities, it is the function of the procedural law to deal with the application
of substantive law to particular cases and it goes without saying that the law of
Evidence is a part of the law of procedure.
IV. Procedural law, is applicable to pending cases. No suitor can be said to have a vested
right in procedure. It must, however, be noted that a provision can be partly
substantive and partly procedural.

 Republic of Costa Rica v. Erlanger, (para 6). If a procedural right has been violated,
no right to file a complain until there has been some injustice due to the violation of
the right.

 Salmond’s jurisprudence:
The law of procedure is a branch of law that defines litigation, and the residue left out
is substantive law.

 DIFFERENCE BETWEEN CIVIL AND CRIMINAL LAW

CIVIL LAW CRIMINAL LAW

Body of law which has to do with Criminal law is the body of law that
private rights of individuals. It is the deals with the legal punishment of
interrelationship of individuals with criminal offenses. Offence is an act that
each other. is prohibited by law, and the violation of
which attracts penalty.
The main aim is restoration of right. Punishment is harsher to deter because
they are cries against the State.
Remedy is initiated by the person whose Remedy is sought by the State.
rights has been infringed.
E.g. Family Law, Law of Maintenance, E.g. IPC, Law for Narcotics.
Law of Contracts.
Involves an injury. It is called a civil It is called a criminal offence.
 wrong.
In the case of Civil Law, there is no In the case of Criminal Law, punishment
punishment like Criminal Law, but the is meted out as per seriousness of the
aggrieved party receives the criminal offence committed or a fine
compensation and the dispute gets could be imposed.
settled or restoration of property or any
other performance. The goal is to get the
plaintiff back what he has lost. Punitive
damages may also be granted to the
plaintiff.
Civil Law is initiated by the aggrieved The Government files the petition in
individual, known as ‘plaintiff.’ The case of criminal law. The parties are
other party is called the ‘defendant’. called the victim and the defendant.
Both must engage a ‘pleader (advocate)’ When the State initiates action, it
for themselves. becomes the Prosecution.
The defendant may be liable without This does not happen here.
fault in cases of strict and vicarious
liability.

“Preponderance of evidence”: The “Beyond a reasonable doubt”: Burden of

burden of proof falls on the plaintiff.
One must produce evidence beyond the
balance of probabilities.
The person whose right has been
infringed can always be identified.
proof is always on the state/government;
guilt has to be proven beyond
reasonable doubt.
There are victimless crimes, the society
as a whole may be the victim. E.g.
Hoarding of essential commodities.

 Simultaneous proceedings may go on in civil and criminal courts. E.g. Tenant plants
narcotic plants in the balcony, case by the landlord. Liable under crime as well as civil
law for breaching the duties of a tenant.

 ACT V. CODE
o A code overcomes the problems of uniformity throughout the territory of a country,
and ensure smooth functioning of the judicial system.
o Labor legislations is a prime example which might be needed to be consolidated in the
present times.
ACT CODE
An act declares/ notifies a law. Code compiles/ consolidates the existing
laws.
E.g. Epidemic Diseases Act, 1897. E.g. CPC, 1908 compiled the civil
procedures of all High Courts; UCC; IPC.

 SUIT
o Suit does not include and application or an appeal. A plaint when accepted by the
court, a suit is instituted under Order 4 of the CPC. Section 2(l) defines a suit.
 o According to Harshraj Gupta v. Official Liquidator of Dehradun, Masoori,
Electric Tramway Company Ltd., suit is a “civil proceeding initiated by
presentation of plaint.”
o A suits are all other kinds of suits and B suits are money suits.
o Format: Number of plaint/ Type of suit/ Year.

 TO SUE AND BE SUED

o A person filing a plaint should have the capacity to sue.
o The person being sued should have the capacity to be sued.

 AFFIDAVIT
o Affidavit is a document which is a sworn statement of facts by the person who
knows that such facts and circumstances have taken place.
o Essentials: Written Document, filed with the plaint, signed by the deponent.
o It is further supported by the verification as to the correctness.
o It has to be notarized.
o You cannot swear your opinions in an affidavit.
o Whether an affidavit can be used as an evidence? Khandesh Spinning and
Weaving Mills v. Rashtriya Kamgaar Sangh, in this case, the Supreme Court shed
light upon whether affidavits can be used as an evidence or not. It said that they
cannot generally be used as evidence, but if the court is satisfied by sufficient
reasons (the opposite party should get an opportunity to cross-examine the
deponent so as to establish and test the veracity of the deponent), it may use it as
evidence.
o Consequences of filing a false affidavit? False Affidavit is an affidavit in which
knowingly, false facts have been claimed or in which the deponent doesn’t believe
the facts to be true. If a person willfully files a statement which he knows is false,
fabricated or frivolous. It is the deponent’s duty to ensure that the affidavit is true
and correct in all forms.

 DECREE
o In the definition, some orders which otherwise do not constitute decree are also
included and certain orders which constitute decree have been excluded from it.
Merely because there exists some order captioned as a decree drawn up even in the
form of decree, it would not make such an order decree unless the court satisfied the
requirement of s 2 (2) of the Code of Civil Procedure [Chelaram v. Manak, AIR
1997 Raj 284].
o Essentials of a decree:
A. Adjudication: It means judicial determination of a matter in dispute. In
Deep Chand v. Land Acquisition Officer, the court held that the
adjudication should be done by a COURT. Any adjudication by an
authority not a court, cannot be a decree. If no judicial determination of
matter in dispute, then it is not a decree [Madan Naik v. Hansubala Devi].
B. Such adjudication must have been given in a suit:
C. Determination of rights of the parties with regard to all or any of the
matters in controversy: Bombay HC in Dattatraya v. Radhabai held that
the right must be a substantive right and not merely a procedural right.
The parties must be parties to the suit and not a 3 rd party. Matters in
 controversy means matters brought to the court through pleadings. If all
or any of the matters is determined by the court, it would be a decree.
 The crucial point which requires to be decided in such a case is
whether the decision is final and conclusive in essence and substance.
If it is, it is a decree, if it is not, it is not a decree [Jethanand and Sons
v. State of UP, 1961 AIR 794].
D. Determination must be Conclusive in Nature: Conclusive
Determination implies that the decision must be a final one which is
complete and hence, the decision might be executed. The decree may
conclusively determine the rights of the parties although it does not
completely dispose off the suit. [Srijib v. Dandi Swami Jagannath
Ashram]. An order may conclusively determine rights of the parties
though not dispose off the suit and still be a decree. Dismissal of an
appeal summarily or dismissal of suit for want of evidence are decrees.
E. Formal Expression: All the requirements of form must be complied
with. Accordingly, it was said that if no decree has been drawn up, no
appeal will lie from the judgment [Mt Chauli Subhadra Devi v. Mt
Meghoo, AIR 1945 All 268].

o The Court with a view to determine whether an order passed by it is a decree or not
must take into consideration the pleadings of the parties and the proceedings
leading up to the passing of an order. The circumstances under which an order had
been made would also be relevant [S. Satyam Singh v. Surender Kaur].
o When a decree is challenged in appeal, the appellate hearing is a re-hearing of the
subject matter. The lower court decree is merged in the appellate decree.
o It has however, been held that the right of a party to prefer an appeal is not affected
by the failure to draw up a decree as that is only formal [Parasuram v. Heera Bai,
AIR 1957 Bom 59].
o A decree follows the judgment and must be drawn up separately [Shakuntala Devi
v. Kuntal Kumari, 1969 AIR 575].
o An order must satisfy the requirements of Sec. 2(2) in order to become a decree.
Merely labelling it as a decree does not make it a decree. [Bal Kishan v. Tulasi Bai,
AIR 1987 MP 120].
o Every suit is commenced by a plaint, [Venkata v. Venkatrama Mad HC] and when
there is no civil suit there is no decree[Minakshi v. Subramanya Mad HC].
o When any order decides only the question of limitation, such an order will not be a
decree within the meaning of Sec. 2(2) of the Code of Civil Procedure because such
an order does not result in conclusive determination of the right of the parties
envisaged by s 2 (2) with regard to all or any matter in controversy in a suit
[Chelaram v. Manak].
o An order allowing withdrawal of suit, without liberty to file fresh suit and without
adjudication, does not constitute a decree [Kandapazha Nagar v. Chitraganiammal,
2007 AIR 1575].
o Deemed Decree: A deemed decree is a fiction in law and is not a decree in
accordance with the essentials given in CPC. Rejection of a plaint is a deemed
decree. Order of Restitution is also a deemed decree.
o Explosion to a decree:
In S. Satyam Singh v. Surender Kaur: The SC in this case said that so as to
determine whether an order is decree or not, it must satisfy the following tests:
 a. Adjudication.
b. Such adjudication must be in a suit.
c. Determination of rights of the parties with regard to all or any
of the matters in controversy.
d. Determination must be conclusive in Nature.
e. Formal Expression.
o In Anjali Prasad v. Ishwardin, the MP HC held that striking out names
would not be decree under Sec. 2(2).

 3 TERMS (RIGHTS, PARTIES AND ‘MATTERS IN CONTROVERSY’)

o The right in controversy must be a substantive right and not merely a
processual right, for a finding on a processual right is only to enable the
court to inquire into the rights in controversy in the suit. [Dattatraya v.
Radhabai, Bom HC].
o Parties means parties to suit and not a third person. Order on an application
by a third party who is a stranger to suit is not a decree.
o The expression matter in controversy in the suit means such matter as has
been brought up for adjudication by the court through the pleadings. Hence,
the conclusive determination, in order to amount to a decree must be on
matters in controversy in the suit.
o An order refusing to record a compromise cannot be tantamount to a decree
within the meaning of Sec. 2(2) and is not therefore, appealable under Sec.
96. The order cannot be held to be an adjudication which conclusively
determines the rights of the parties with regard to any of the matters in
controversy in the suit. [Gopupeddireddi v. Gopu Tirupathy Reddy, AIR
1991 AP 362].
o It was held that the order directing striking out the names of parties was not
a decree. All that the order means is, that those plaintiffs were improperly
joined in the suit and their names were struck out. This order contains a
mere finding that those persons were not necessary parties to the suit and
hence, is not a decree. Consequently, they could not appeal against it [MP
HC, Anjeeni Prasad v. Ishwardin].

 PRELIMINARY AND FINAL DECREE

o A preliminary decree is one which declares the rights and liabilities of the
parties leaving the actual result to be worked out in further proceedings [ex.
partition]. Then, as a result of the further inquiries conducted pursuant to
the preliminary decree, the rights of the parties are finally determined and a
decree is passed in accordance with such determination. That is the final
decree.
o A decree may be said to become final in two ways [Shankar v.
Chandrakant, 1995 AIR 1211]:
(i) when the time for appeal has expired without any appeal being filed against the
preliminary decree or a matter has been decided by the highest court;
(ii) when as regards the court passing the decree, the same stand completely disposed
off.
 In the case of Hasham Abbas Sayyad v. Usman Abbas Sayyad [2007 AIR 1077] the
Supreme Court has explained that preliminary decree declares the rights and liabilities of
parties; however, in a given case a decree may be both preliminary and final.
 There can be more than one final decree. A decree may be partly preliminary and party
final, but what can be executed is a final decree and not a preliminary decree, unless final
decree is a part of the preliminary decree.
 Preliminary decree is a decree within the meaning of Sec. 2(2) of the Code of Civil
Procedure, but it is not capable of execution, normally, till a final decree is passed [A. K.
Akkukamma v. G Papi Reddy, AIR 1995 AP 166].
 Order 20 [Rule 12, 13, 14, 15, 16, 18 and 34] enumerates the classes of suits in which
preliminary decrees are to be passed but this is not exhaustive and does not preclude the
court from passing a preliminary decree in cases not expressly provided for in the Code of
Civil Procedure.
 It is settled law that there can be more than one preliminary decrees in a suit. Similarly,
there can be more than one final decree in a suit [Rachakonda Venkat Rao v. R. Satya Bai,
AIR 2003 SC 3322].
 A decree can be partly preliminary and partly final as well [e.g. In Suit for possession of
immovable property and mesne profits, court grants possession and reserves decree for
final decision on quantum of mesne profits].

 DEEMED DECREE
o The term ‘deemed’ is generally used to create a statutory fiction for the purpose of
extending the meaning which it doesn’t expressly cover.
o CIT vs Bombay Trust Corpn. [AIR 1930 PC 54], the PC stated “When a person is
deemed to be something, the only meaning possible is that whereas he is not in reality
that something, the act of parliament/legislature requires him to be treated as if he
were”.
o An adjudication is not a ‘decree’ as per the essentials given under section 2(2) of the
code can’t generally be said to be a decree. Thus by legal fiction, certain orders are
deemed to be decrees under the code.
o An award rendered under the Arbitration and Conciliation Act, 1996, is a deemed
decree only for the purpose of enforcement under s 36 of the Act. The enforcement is
done by taking steps under Code of Civil Procedure for the realisation of money. The
use of the words as if in s 36 of the Act demonstrates that it is a decree only by a legal
fiction and the said legal fiction is created only for the purpose of its enforcement as
decree cannot be extended beyond the purpose for which it was created. [Paramjeet
Singh Patheja vs ICDS Ltd., 2009 AIR 168]
o Some example of orders which are decrees:
 a modification in a decree is also a decree.
 An order made in winding up proceedings under the Indian Companies Act,
1956;
 An order setting aside an ex-parte decree is a decree and the plaintiff
aggrieved by such an order can appeal against it.
 An order modifying a scheme under s 92 of the Code of Civil Procedure
1908, which is part of a decree, constitutes an amendment in decree against
which an appeal would lie;
 An order rejecting a plaint is a decree and is not revisable under s 115 of the
Code but appealable under s 96 of CPC.
o Some example of orders which are not decrees:
 An order rejecting an application for leave to sue in forma pauperis for no
suit has till then been filed;
  An order under the Indian Trusts Act, 1882 dismissing an application for the
removal of a trustee;
 An order granting interim relief under s 24 of the Hindu Marriage Act, 1955;
 Rejection of application for condonation of delay and consequent dismissal
of appeal as time barred.

 ORDER [S. 2(14)]

o An order means, “the formal expression of any decision of civil court which is not a
decree.”
o Order has been defined in Sec. 2(14) of the CPC.
o As a general rule, an order of a court of law is founded on objective considerations
and as such a judicial order must contain a discussion of the question at issue and the
reasons which prevailed with the court which led to passing of the order.
o Order in contempt proceedings is an order within the meaning of this section. But it
may be noted that contempt is a matter essentially between the court and condemner.
o The party filing an application seeking action against the contemner is only informant.
Once the court admits the contempt petition, then the petitioner has really no effective
role to play though usually he is given a hearing in such a petition.
o The contempt alleged may be a contempt of civil nature but by exercising its
jurisdiction to deal with the alleged contempt, the court does not become a civil court
within the meaning of Sec. 2 (2) and Sec. 2 (14) of the Code of Civil Procedure. It
remains as a court exercising contempt jurisdiction. The court either punishes the
condemner or discharges him or remedies punishment of apology being made to its
satisfaction.
o No other order is contemplated in such a proceedings. If in such a proceedings the
parties file certain consent terms, they do not form the part of the final order which is
contemplated in contempt proceedings. Filing of the consent terms by the parties is
only a consideration which prompts the court not to proceed further in the matter and
terminate the proceedings by disposing of the petition. Therefore, it can hardly be said
that the consent terms in terms of which the petition is disposed of form the part of the
final order of the court.
o The court, in exercise of its contempt jurisdiction, does not decide any issue or
question much less on merits. Therefore, the consent terms incorporated in the final
order passed in contempt petition do not amount to a decision within the meaning of
the term as used in Sec. 2 (14) of the Code of Civil Procedure and therefore, it is not
an order within the meaning of that section. Consequently, such an order cannot be
said to be executable under O 21 read with s 36 of the Code of Civil Procedure.

 DECREE OR ORDER OBTAINED BY FRAUD

o It is well settled principle of law that if any judgment or order is obtained by fraud, it
cannot be said to be a judgment or order in law. Before three centuries, Chief Justice
Edward Coke proclaimed; "Fraud avoids all judicial acts, ecclesiastical or temporal".
o It is thus settled proposition of law that a judgment, decree or order obtained by
playing fraud on the Court, Tribunal or Authority is a nullity and non est in the eye of
law. Such a judgment, decree or order by the first Court or by the final Court has to be
treated as nullity by every Court, superior or inferior. It can be challenged in any
Court, at any time, in appeal, revision, writ or even in collateral proceedings.
 o In the leading case of Lazarus Estates Ltd. v. Beasley, Lord Denning observed: “No
judgment of a court, no order of a Minister, can be allowed to stand, if it has been
obtained by fraud.”
o In A.V. Papayya Sastry v. Govt of AP, the SC when was approached u/a 136 it held
that “we have no doubt that the remedy to move for recalling the order on the basis of
the newly discovered facts amounting to fraud of high degree, cannot be foreclosed in
such a situation. No Court or tribunal can be regarded as powerless to recall its own
order if it is convinced that the order was wangled through fraud or
misrepresentation of such a dimension as would affect the very basis of the claim…
Keeping in view totality of facts and attending circumstances including serious
allegations of fraud said to have been committed by the land-owners in collusion with
officers of the respondent-Port Trust and Government, report submitted by the
Central Bureau of Investigation (CBI), prima facie showing commission of fraud and
initiation of criminal proceedings, etc. if the High Court was pleased to recall the
earlier order by issuing directions to the authorities to pass an appropriate order
afresh in accordance with law, it cannot be said that there is miscarriage of justice
which calls for interference in exercise of discretionary and equitable jurisdiction of
this Court.”

 JUDGMENT [s. 2(9)]

o Judgement means, “the statement given by the judge of the grounds of a decree or
order.”
o In Smt. Swaran Lata Ghosh v. Harendra Kumar Banerjee and Anr. (AIR 1969 SC
1167), it was inter-alia held as follows (at Para 6): “Trial of a civil dispute in Court is
intended to achieve, according to law and the procedure of the Court, a judicial
determination between the contesting parties of the matter in controversy.
Opportunity to the parties interested in the dispute to present their respective cases on
question of law as well as fact, ascertainment of facts by means of evidence tendered
by the parties and adjudication by a reasoned judgment of the dispute upon a finding
on the facts in controversy and application of the law to the facts found, are essential
attributes of a judicial trial. In a judicial trial, the judge not only must reach a
conclusion which he regards as just, but, unless otherwise permitted, by the practice
of the Court or by law, he must record the ultimate mental process leading from the
dispute to its solution. A judicial determination of a disputed claim where substantial
questions of law or fact arise is satisfactorily reached, only if it be supported by the
most cogent reasons that suggest themselves to the Judge; a mere order deciding the
matter in dispute not supported by reasons is no judgment at all. Recording of reasons
in support of a decision of a disputed claim serves more purposes than one. It is
intended to ensure that the decision is not the result of whim or fancy, but of a judicial
approach to the matter in contest; it is also intended to ensure adjudication of the
matter according to law and the procedure established by law. A party to the dispute is
ordinarily entitled to know the grounds on which the Court has decided against him,
and more so, when the judgment is subject to appeal. The Appellate Court will then
have adequate material on which it may determine whether the facts are properly
ascertained, the law has been correctly applied and the resultant decision is just. It is
unfortunate that the learned Trial Judge has recorded no reasons in support of his
conclusion, and the High Court in appeal merely recorded that they thought that the
plaintiff had sufficiently proved the case in the plant."
o In Balraj Taneja and Anr. v. Sunil Madan and Anr. (1999 (8) SCC 396), it was inter-
alia held as follows:
"There is yet another infirmity in the case which relates to the "judgment" passed by the
single Judge and upheld by the Division Bench.
"Judgment" as defined in Section 2(9) of the Code of Civil Procedure means the statement
given by the Judge of the grounds for a decree or order. What a judgment should contain is
indicated in Order 20 Rule 4(2) which says that a judgment "shall contain a concise statement
of the case, the points for determination, the decision thereon, and the reasons for such
decision". It should be a self-contained document from which it should appear as to what
were the facts of the case and what was the controversy which was tried to be settled by the
Court and in what manner. The process of reasoning by which the Court came to the ultimate
conclusion and decreed the suit should be reflected clearly in the judgment."
o The ratio decidendi of judgment has to be found out only on the reading of the entire
judgment. The ratio of the judgment is what is set out in the judgment itself, the
answers to the questions are merely conclusions and not ratio of the judgment.
[Islamic Academy of Education vs State of Karnataka, AIR 2003 SC 3724]
o It has been held that section 2(9) defines the word "judgment" as defined in the Code
and not elsewhere.[ The Printers (Mysore) Pvt Ltd v P Joseph, AIR 1961 Mys 8
(DB)].
o Thus, the meaning of the word "judgment" in Civil Procedure Code is not helpful in
ascertaining meaning of the word in section 10 of Delhi High Court Act. [Begum
Aftab Zamani v Shri Lal Chand Khanna, AIR 1969 Del 85 (FB)]
o Likewise, this definition does not apply to the word as occurring in the Letters Patent.
[Shorab Modi v Mansata Film Distributors, AIR 1957 Cal 727]
o “Judgment” in Article 133, Constitution of India also does not carry the sense in
which it is defined under this section. [Inda Devi v Revenue Board, AIR 1957 All
116 (DB)]
o Order rejecting application to appeal as pauper is not a judgment. [Kailashnath v
Nagar Mahapalika, Lucknow, AIR 1963 All 241]

DIFFERENCES
 JUDGMENT VS DECREE
Necessary for a judge to give statement of
reasons in judgment
Judgment contemplates a stage prior to the
passing of a decree [ see s. 33]
Not necessary for the judge to give
statement of reason in decree
After pronouncement of judgment a decree
shall follow.

 DECREE vs ORDER
Is passed only in a suit Can be passed in a suit, or
instituted by presentation of may originate from
plaint petition/application
Conclusive determination is May or may not conclusively
quintessential determine rights
May be preliminary or final There can’t be a preliminary
order
All decrees are appealable Appealable only if
enumerated in o43r1
Second appeal may be filed No provision for second
on ‘substantial question of appeal
law’

 PLEADING
o Order VI Rule 1 says that it includes both: Plaint and a Written Statement.
o Objectives:
i. Another purpose of pleadings is that both the parties know each side’s dispute
and the real controversy may be determined.
ii. Also, it helps to concentrate the process because parties cannot deviate from
what they’ve written in the pleadings.
iii. The object of a pleading is to bring the parties to a trial by concentrating their
attention on the matter in dispute, so as to narrow the controversy to precise
issues, and to give notice to parties of the nature of testimony required on
either side in support of respective cases [Ladli PD vs Karnal & C, 1963 SC
1279]
 Order II Rule 2 says that if you have not asked for something in the pleading, it will
be considered that you have foregone that right of yours.

 Difference between adjudication and resolution:

o Written Statement may also include Set off or Counter Claim. Set off is the
monetary compensation.
o Written statement must be filed for the same subject matter as the plaint. It
must include a response for the plaint. Counter claim is the claim for rights
or possession or anything that is not money. Order VIII governs the written
statement.
o Relief in favor of parties not sought in pleading should not be granted
[Sayyad Dagadu Karim vs R. C. Rodrigues, 2003 AIHC 1719 (1720) Bom]
o In interpreting the pleading no pedantic approach should be adopted to
defeat justice on hair splitting technicalities. Sometimes pleadings are
expressed in words which may not expressly make out a case in accordance
with hair-splitting interpretation of law. In such a case it is the duty of court
to ascertain the substance of the pleadings to determine the question [Ram
Swarup v. Bishun Narayan, 1987 AIR 1242]
o The whole object of pleadings is to ascertain the real disputes between the
parties, to narrow down the area of conflict and to see where the two sides
differ, to preclude one party from taking the other by surprise and to
prevent miscarriage of justice [Throp vs Holdsworth, (1876) Ch D 637].
o Ganesh Trading Co. vs Moji Ram [(1978) 2 SCC 91] “provisions relating
to pleading in civil cases are meant to give to each side intimation of the
case of the other so that it may be met to enable courts to determine what is
really at issue between parties, and to prevent deviations from the course
which litigation on particular casus of action must take.”
o General principles for pleadings:
a) The pleadings should state facts and not law;
b) The facts stated should be material facts;
c) Pleadings should not state evidence; and
d) The facts should be stated in concise form.
  PLAINT
o A “Plaint” is a statement of claim, document, or a memorial by the presentation of
which a suit is instituted. It contains the grounds on which assistance of court is
sought by the plaintiff.
o It is a pleading of the plaintiff. Plaint is “a private memorial tendered to a court in
which a person sets forth his cause of action; the exhibition of an action in writing”
[Assan vs Pathumma, ILR (1899) 22 Mad 494].
o Plaint shall contain the following: a) name and details of parties, b) cause of action, c)
jurisdiction of court, d) reliefs. [Order VII Rule 1]

 WRITTEN STATEMENT
o May be defined as a reply of the defendant to the plaint filed by plaintiff.
o It is a “term of specific connotation ordinarily signifying a reply to the plaint filed by
the plaintiff” [Food Corporation of India v. Yadav Engg and Contractor, (1982) 2
SCC 499].

 EXECUTION
o The process of enforcing or giving effect to the judgment, decree or order of the court.
o 2 parties: Judgement Debtor as defined in Sec. 2(10) and Decree Holder in Sec.
2(3).
o The process of enforcing or giving effect to the judgment, decree or order of the court.
o Execution is to situate the structure of rights and liabilities which the court has
decided upon. It is the allocation of resources in accordance with the court’s decision.
o Execution is the enforcement of decrees and orders by the process of the court, so as
to enable the decree holder the realize the fruits of the decree [Sreenath Roy v.
Radhanath Mookerjee, ILR (1882) 9 Cal 773].
o The execution is complete when decree-holder gets money or other thing awarded to
him by the judgment, decree or order.

 CAUSE OF ACTION
o The facts which need to be proven for a law suit to succeed in the court is the cause
of action.
o Cause of action is a bundle of facts which is necessary for plaintiff to prove his case
so that he can succeed. [Nawal Kishore Sharma v UOI, AIR 2014 SC 3607]
o Cause of action comprises a bundle of facts which are relevant for determination of
lis between parties.[ AVM Sales Corporation v Anuradha Chemicals (P) Ltd (2012)
SCC 315]
o In Pittapur Raja v. Suriya Rau, their Lordships of the Privy Council, referring to the
expression cause of action in r 2, said that it meant the cause of action for which the
suit was brought.
o Generally stated, cause of action means every fact which is necessary to establish to
support a right or obtain judgment. Another shade of meaning is that a cause of action
means every fact which will be necessary for the plaintiff to prove (if traversed).

o ILLUSTRATIONS
  A resides at Delhi, and B at Agra, B borrows Rs. 2,000 from A at Banaras
and passes a promissory note to A payable at Banaras, B fails to repay the
loan, A may sue B at Banaras where the cause of action arose or at Agra
where B resides. But A cannot sue B at Delhi where A resides.
 If in Illustration (i) the note was made payable at Amritsar a part of the
cause of action would arise at Banaras where the note was passed and a part
at Amritsar where it was made payable and A could then sue B at his option
at Amritsar also.
 B and C pass a joint promissory note to A at Banaras and made payable at
Banaras. B resides at Agra and C at Simla. A may sue B and C at Banaras
where the cause of action arose. He may also sue them at Agra where B
resides or at Simla where C resides but in either of these cases if the non-
resident objects, the suit cannot proceed without the leave of the Court.

 MESNE PROFITS

o Mesne profits of property means those profits which the person in wrongful
possession of such property actually received or might with ordinary diligence have
received therefrom, together with interest on such profits, but shall not include profits
due to improvements made by the person in wrongful possession.
o It means those profits to which a person is entitled but from which he has been kept
out by the defendant [D Satyanarayanan Murthy v Bhavanna].
o Mesne profits can be claimed only regarding immovable property and not in regard to
such property which cannot be deemed to be immovable property. [KB Singh v MDU
Co-op Association].
o Object of awarding such profits—The main object is to compensate the person entitled
to be in possession of the property. A person who is entitled to actual possession can
claim mesne profits. The very foundation of the cause of action for mesne profits is
wrongful possession of the defendant. Thus, for example, the possession of a
mortgagor after the date of a foreclosure decree against him is a wrongful possession.
o Similarly, the possession of a vendee under a conveyance which is voidable for fraud
or undue influence is a wrongful possession.
o Measure of mesne profits—The measure of mesne profits is not what the plaintiff has
lost. The measure would be, what the defendant has gained by his wrongful
possession, or what he might reasonably have gained by such possession. Thus, if the
person charged has let the land to another, the rent which he has actually received
would be the mesne profits for which he would be liable, unless it is proved that a
higher rent could have been obtained with due diligence.
o The expression mesne profits as defined in Sec. 2(12) of the Code means those profits
which a person in wrongful possession of such property either act ually received or
might have received with due diligence. It is not always necessary that there should be
proof of actual receipt. [Mohadei v. Kaliji Birajman, 1969 All LJ 896]
o The principles which would guide a Court in determining whether mesne profits be
allowed or not, are as follows:
 a wrongful possessor should not profit by his possession.
 restoration of status before dispossession of the rightful owner; and
 use to which the rightful owner would have put the land if he was himself
in
 possession.
o Reference may be made to Nandita Bose v Ratan Lal Nahata, wherein, it has been
held as follows:
“The claim for mesne profits damages is neither palpably absurd not imaginary. It
needs judicial consideration. The acceptance of the view put forward by the
respondent (tenant) may lead to encouraging a tenant who has forfeited his right to the
tenancy to carry on a dilatory litigation without compensating the land lady (land
lord) suitably for loss suffered by him on account of the unreasonable deprivation of
the possession of his premises for a long period until he is able to get possession of
the premises through the Court.”
o The possession of a co-sharer can never be wrongful within the meaning of s 2 (12) as
he has a right and interest in every inch of the undivided property. Therefore, one co-
sharer cannot claim mesne profits against the other, on the ground that the latter was
in wrongful possession. [Shambhu Dayal Khetan v. Motilal Murarka, AIR 1980 Pat
106]
o It has been held that interest is an integral part of mesne profits and has therefore to be
allowed in computation of mesne profits itself. What rate of interest shall be allowed,
that always depends on the discretionary powers of the Court as there is no question
of any contractual rate or any particular rate fixed by statute. [N Dajee v Tirupathi
Devasthanam, AIR 1965 SC 1231]

INTERMEDDLER
o Intermeddles with the Estate. One who intermeddles with the estate of a deceased
person, even though it may be with part thereof, is a legal representative within the
meaning of this clause and is liable to the extent of the property taken in possession
by him. [Woomesh v. Jabed Ali, AIR 1944 Cal 42: (1950) ILR Cut 413]
o He would, however, not be a legal representative in respect of properties not in his
possession. [Ram Prasad v. Jumna Prasad, AIR 1952 MB 153.]
o However, it has been held that a mere trespasser is not a legal representative as he has
not intermeddled with the intention of representing the estate. [Chockalingam v.
Karuppan, AIR 1948 Mad 386]
o If a person, who is not the heir, wrongly brings himself on the record of a suit after the
death of a party, he does not become a legal representative, unless he in fact takes
possession and so, intermeddles with the estate of the deceased. [Natesa Sastrigal v.
Alamemachi, AIR 1951 Mad 541]
o The averment in a plaint filed by a bank for the recovery of a loan advanced to a sole
proprietary concern was that certain relations of the proprietor (since deceased) were
intermeddling with the estate of the deceased, and that is why the intermeddlers were
made parties. It was held that their names could not be struck off. [State Bank of India
v. Indian Apparel Industries, AIR 1989 Del 299]
o In a suit for partition filed by the father and a minor, the suit was decreed, but during
the pendency of the appeal by defendants, the minor died and his mother, who was a
class I heir was not brought on the record within time. A Full Bench of Patna High
Court held that the appeal did not abate as father became his legal representative as
intermeddler on the minors death and as such the mother was allowed to be brought
on the record. [Sudama Devi v. Jogendra Chaudhary, AIR 1987 Pat 239: 1987 BLJR
724 (FB).]
o Where, in an appeal arising out of a decree passed in a suit for obtaining possession
by ejecting trespassers, one of the co-owners died during pendency of the appeal,
another Full Bench of the same High Court reiterated the above view and held that
 since other co-owners, apart from being brothers were intermeddlers to the estate, the
whole appeal would not abate. It was observed that the definition of legal
representative in s 2 (11) of the Code includes intermeddlers. [Yogendra Bhagata v.
Pritlal Yadava, AIR 2009 Pat 168]

 PRECEPT
o Exceptions to Precept.
o A precept under Section 46 CPC is only a request of a Court passing the decree to
another Court where the decree holder intends to initiate execution proceedings
because of the judgment debtor having attachable properties within the jurisdiction of
the Court to which decree is transferred under Order XXI Rule 6 CPC. Upon receipt
of the precept the transferee Court has to attach the property in respect of
which precept is received by it and even that attachment remains in force for a period
of two months unless that attachment is extended by the Court which had passed the
decree. This is provided in Section 46 CPC itself.
o A precept is an interim attachment, its operation restricted to a period of two months
unless this period is extended, or up to the time of the transfer of the decree to the
court by which the attachment has been made. Permanent attachment cannot he made
under Section 46.  
o It is issued by the court which passed the decree and may be issued by such court
even after it has transferred the decree for execution to another court.
o It is only an interim measure for the preservation of Property pending the transfer of
the decree. A precept can only be issued after the passing of the decree and is
different from an attachment before judgment.

 GARNISHEE ORDER

PRECEPTS

 It was, at one time, proposed to do away with the system of execution by transfer of
decree under ss 36 to 42, and to substitute another system whereby the court which passed
the decree, retained complete control and issued precepts to one or more other courts to
carry on execution under its direction. This proposal was abandoned and the system of
execution by transfer of decree retained. But the proposal led to the insertion of the
present section by which the court which passed the decree can issue a precept of
attachment to ensure for two months or pending transfer of decree and application for
execution. The object of a precept is to enable a decree-holder to obtain an interim
attachment where there is ground to apprehend that he may otherwise be deprived of the
fruits of his decree. No such attachment, however, can continue for more than two months
except in the two cases mentioned in the section. The effect of the proviso is to render re-
attachment unnecessary. When money is attached under a precept and the period of the
operation of the precept is over, the money can be paid over to another decree-holder,
who subsequently attaches it. [Gurdiyal Singh v. Kharzan Chand , AIR 1936 Lah 486]

 In an Andhra case, the facts were as under:

(i) Property in town A was attached;
(ii) Execution proceedings were going on in town B;
 (iii) Application had been made to hold the auction in town A , where the sale would
fetch a higher price as a large number of bidders were expected to bid.

 It was held that the jurisdiction of court at B to give direction to court at A to conduct the
auction was not affected by the mere expiry of the period of attachment. [Karri Venkata
Reddi v. Central Bank of India , AIR 1990 Pat 81.]

 When the attachment of a debt out of jurisdiction is made directly and not through a
precept, the attachment is illegal. [ Sheerazee v. Reddy , AIR 1940 Rang 34 (1939) ILR
Rang 624.]

 As a general rule, territorial jurisdiction is a condition precedent to a court executing a

decree and neither the court which passes the decree, nor the court to which it is sent for
execution, can execute it in respect of property lying outside its territorial jurisdiction.
The object of s 46 (precepts), is simply to enable the attachment of the property of the
judgment-debtor situated within the jurisdiction of another court, in order to prevent the
judgment-debtor from alienating or otherwise dealing with it to the detriment of the
judgment-debtor till proper proceedings are taken. [368 . Manganese Ore (India) Ltd. v.
Mangilal Rungta , AIR 1981 Del 114]

 The concept of 'Garnishment' has been introduced in civil procedure code by the
amendment Act, 1976 and is a remarkable piece of legislation. This term has been derived
from the French word 'garnir' which means to warn or to prepare. In simple words the
garnishee is the person who is liable to pay a debt to a debt to judgment debtor or to
deliver any movable property to him. Besides Judgment Debtor and decree Holder,
Garnishee is a third person in whose hands debt of the judgment debtor is kept.

 Garnishee Order is an order passed by an executing court directing or ordering a

garnishee not to pay money to judgment debtor since the latter is indebted to the garnisher
(decree holder). It is an Order of the court to attach money or Goods belonging to the
judgment debtor in the hands of a third person. The third party is known as 'Garnishee'
and the court's order is known as Garnishee Order. It is a remedy available to the Decree
holder. This Order may be made by the Order of the court to holders of funds, i.e. a third
party that no payments have to be made until the court authorizes them. The purpose of
the Order is to protect the interest of the Decree holder. This is an Order served upon a
garnishee requiring him not to pay or deliver the money or property of the debtor
(defendant) to him and/or requiring him to appear in the court and answer to the suit of
the plaintiff to the extent of the liability to defendant.

 The power of the court enshrined under Rule 46A to issue court notice, is discretionary
and the court may refuse to pass such Order if it is Inequitable and the court apprehends
that it can cause prejudice to the garnishee, or that the grounds of the application seeking
that remedy is not sufficient or if the affidavit is filed by decree holder is frivolous or
ambiguous, etc. The discretion, however, must be exercised judicially. Where the court
finds that there is bonafide dispute against the claim and the dispute is not false or
frivolous, it should not take action under this rule.

 The executing Court has been given power to recover any of the amounts of the judgment
debtor, which is in the hands of other. The rule of 46 A requires a notice to be issued to a
 garnishee before a garnishee order is passed against him. If such notice is not issued and
an opportunity of hearing is not provided by the court, the order would be null and void.
In the eyes of law, there is no existence of such an order and any step taken pursuant to or
an in enforcement of such an order would also be void. The object of this rule is to render
debt due by the debtor of the judgment debtor available in execution to the decree holder
and not to drive him to a suit. It applies to a debt, other than a debt secured by a mortgage
or a Charge, which has been attached under rule 46.

 Prior to this amendment in 1976, there was no provision relating to garnishee order in the
code of civil procedure, 1908. After insertion of this amendment, a direct provision was
added to the code of civil Procedure, which empowers the court to issue such an order on
the application duly filed. It is the discretionary power of the court to issue a garnishee
order and not a mandatory provision.

 Garnishee proceedings are the proceedings in rem as well as in personam. It operates on

the personam of the garnishee as on the debt. Therefore, it is classified as a proceeding
quasi in rem. Cheques cannot be attached under Order XXI Rule 46. It is attached under
O21 R46. It is attached under OXXI R51 relating to Negotiable Instrument Act. Similarly
contingent Debts can also not be attached. The court has to use this power with caution
thinking properly and after being ensured that the case is prima facie and that no innocent
is harassed, otherwise the very purpose of the legislation of providing the concerned
remedy as discussed above shall come to be at a stake.

 SECTION 2
o Immovable Property
1. Land
2. Anything permanently embedded or attached to the land (with the intention
permanent use)/ (Walls, trees, pole)
3. Things fastened with things so attached or embedded. (Projector Screen)
o Standing Timber, growing crops and grass have been removed from this definition.

o JURISDICTION:
o It is the power of a court to entertain a matter.
o It may be of 3 types: Pecuniary, Territorial and Subject Matter.
o Jurisdiction cannot be affected by act of parties, only law. it cannot be created or
taken away by act of parties.
o Pecuniary jurisdiction has no application to ‘appellate jurisdiction’ cases.
o Definition: Jurisdiction means the extent of power of a court to entertain suits and
applications. It signifies the power authority and competency of the court to
adjudicate disputes presented before it. It refers to the right of administering justice
by means of law. [Official Trustee, West Bengal vs Sachindra Nath Chatterjee, 1969
AIR 823]
o Jurisdiction means the power or authority of a court to inquire into facts, to apply the
law and to pronounce a judgment and to carry it into execution. [Ujjam Bai vs State
of UP, 1962 AIR 1621]
o The definition of jurisdiction under Black’s Law Dictionary is : “ The power and
authority constitutionally conferred upon ( or constitutionally recognized as existing
 in) a court or judge to pronounce the sentence of law, or to award the remedies
provided by law , upon a state of facts, proved or admitted, referred to tribunal for
decision, and authorized by law to bring the subject of investigation or action by that
tribunal, and in favor of or against persons (or a Res) who present themselves, who
are brought before the court in some manner sanctioned by law as proper and
efficient.”
o Where a court lacks jurisdiction to try a matter, it cannot be created by express
consent of parties [Patel Roadways Ltd vs Prasad trading Co], , waiver [P Dasa Muni
reddy vs P Appa Rao], or acquiescence [kiran singh vs chaman paswan]. Similarly, it
can’t be taken away by act of parties.
o Where multiple courts have jurisdiction, parties may choose.
o Decree by court not having jurisdiction is null and void.

LACK OF JURISDICTION AND IRREGULAR EXERCISE OF JURISDICTION

o Lack of jurisdiction = the concerned court has no jurisdiction to entertain the suit.
o Irregular exercise of jurisdiction = the court has jurisdiction but has exercised such
jurisdiction irregularly.
o Ittyavira Mathai vs Varkey varkey [1964 AIR 707]
It was contended that decree passed by court was nullity as the suit was time barred. The
SC observed “if the suit was barred by time and yet the court decreed it, the court would
be committing an illegality and therefore the aggrieved party would be entitled to have
the decree set aside by preferring an appeal against it. But it is well settled that a court
having jurisdiction over the subject-matter of the suit and over parties thereto though
bound to decide right may decide wrong; and that even though it decided wrong it
would not be doing something which it had no jurisdiction to do… if the party aggrieved
does not take appropriate steps to have that error corrected, the erroneous decree will
hold good and will not be open to challenge on basis of being a nullity”.
o “Lack of jurisdiction may arise in various ways. There may be an absence of those
formalities or things which are condition precedent to the tribunal having any
jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order
that it has no jurisdiction to make.” [Anisminic Ltd vs Foreign Compensation
commission]
TYPES
- Territorial
- Pecuniary
- Subject-matter
PECUNIARY JURISDICTION

o SECTION 6
o “—Save in so far as is otherwise expressly provided, nothing herein contained shall
operate to give any Court jurisdiction over suits the amount or value of the subject-
matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.”
o It is the plaintiffs valuation in his plaint which prima facie determines the jurisdiction
of the court and not the amount which may be found or decreed by the court. [Fray v.
Voules, (1859) 1 E&E 839]
 o Where different suits which are severally within the jurisdiction of the court are
consolidated for hearing, the court does not lose its jurisdiction to hear it by reason of
the value of all the suits exceeding its jurisdiction if taken together.[ Ramappayya v.
Subbamma, AIR 1949 Mad 98]
o The Bombay High Court has held that in a case of damages, the amount of damage
which the Court can award is limited to the pecuniary jurisdiction of the Court.
[ Jiwibai v. Ram Kumar, AIR 1947 Nag 17:]
o Mesne profits after suit do not affect pecuniary jurisdiction. The value of a suit
for the recovery of possession and mesne profits is the value of the immovable
property plus mesne profits up to the date of the suit. Mesne profits after suit do not
form part of the cause of act ion even though there be a prayer in the plaint for mesne
profits after suit. If the suit is properly brought in the court of a munsiff for the
recovery of possession of land and mesne profits prior to the date of the suit, and there
is also a prayer for mesne profits from the date of the institution of the suit, which are
claimed or assessed at a sum beyond the pecuniary jurisdiction of the munsiff, the
munsiff has jurisdiction to fix the mesne profits from and after the date of the
institution of the suit and to pass a decree therefore although the amount may be
beyond his pecuniary jurisdiction.[ Sadashiv v. Maruti, (1890) ILR 14 Bom 455]
o ILLUSTRATION
A sues B for possession of land valued at Rs 686 and for the mesne profits up to the
date of the suit valued approximately at Rs 200 and for mesne profits subsequent to
the date of the suit not valued at all. The suit is brought in the court of a munsiff
whose pecuniary jurisdiction is limited to Rs 1,000. A decree is passed in the suit for
the plaintiff for possession and for mesne profits upto the date of the suit.
Subsequently, the plaintiff applies to the munsiff for assessment of mesne profits after
the date of the suit claiming Rs 60,000 for such profits. The munsiff can pass a decree
for Rs 60,000 though the amount exceeds his pecuniary jurisdiction.
o This section has no application to proceedings other than suits.[ Hemalatha v. Jambu
Prasad, AIR 1959 All 383]
o But proceedings in execution are included in the word suit and will be governed by
the provisions of the Code of Civil Procedure.[Chambers v. Mason, (1858) 5 CBNS
59]

Example where valuation of sm of application exceeds subject value of suit.

JURISDICTION OF CIVIL COURTS

SECTION 9
Courts to try all civil suits unless barred.—
The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits
of a civil nature excepting suits of which their cognizance is either expressly or impliedly
barred.
[Explanation I]—A suit in which the right to property or to an office is contested is a suit of a
civil nature, notwithstanding that such right may depend entirely on the decision of questions
as to religious rites or ceremonies.
[Explanation II]—For the purposes of this section, it is immaterial whether or not any fees are
attached to the office referred to in Explanation I or whether or not such office is attached to a
particular place.]
A court is said to have jurisdiction of the subject matter of a particular controversy if the
court has authority to hear and decide causes of a class to which the particular controversy
belongs.
the allegations made in the plaint decide the forum. The jurisdiction does not depend upon the
defence taken by the defendants in the written statement.4
In all types of civil disputes, civil court has inherent jurisdiction as per s 9, unless a part of
that jurisdiction is curbed out from such jurisdiction, expressly or by necessary implication,
by any statutory provision and conferred on any other tribunal or authority.6

SUIT OF CIVIL NATURE

o A suit is of civil nature if the principal question therein relates to the determination of
a civil right and enforcement thereof. It is not the status of parties of the suit, rather
the subject-matter of it which determines whether or not the suit is of a civil nature.
o Most Rev P.M.A. Metropolitan vs Moran Mar Marthoma [1995 AIR 2001]

o Example of suits of civil nature

1. Suit by govt servant for arrears of salary
 2. Right to worship
3. Right relating to religious or other processions
The Supreme Court has laid down certain principles deciding the question as to
whether a right to a religious office would be a right of civil nature or not? These are:
(i) A suit for a declaration with respect to religious honours and privileges
simpliciter will not lie in a Civil Court:
(ii) However, a suit to establish one's right to an office in a temple and to honours,
privileges, remuneration or requisites, attached to such an office will be
maintainable in a Civil Court.
(iii) The condition for the existence of an office is that the holder of the alleged
office should be under a legal obligation to discharge the duties attached to the
said office, for non-observance of which penalties can be inflicted on him. [Sinha
Ramanuja v Ranga Ramanuja, AIR 1961 SC 1720 : (1962) 2 SCR 509]
4. Right of burial
5. Right of person as a member of club
6. Rights under contract
7. Suit for a declaration


Clause (a): Suits for recovery of immovable property. A suit for the recovery of
immovable property situated in the city of Bombay must be instituted in a court in Bombay
having jurisdiction to entertain the suit. The Small Cause Court in Bombay has no
jurisdiction to try such a suit.77 The suit must, therefore, be brought in the High Court of
Bombay or the City Civil Court depending upon the monetary value of the subject matter of
the suit. Hence, it is that the section commences with the words subject to the pecuniary or
other limitations prescribed by any law.
Sections 15 to 20 of the Code deal with the place of suing, that is the forum for institution of
suits in India. Place means place in India and the heading refers to the Courts of India
mentioned in these sections. These sections regulate the venue within India and apply only to
those places where the Code is in force.
S. 15
Scope of section.—
The object of the section is that Courts of higher grades shall not be over-crowded with
suits.632 This section is a rule of procedure, not of jurisdiction, and whilst it lays down that a
suit shall be instituted in the Court of the lowest grade, it does not oust the jurisdiction of the
Courts of higher grades which they possess under the Acts constituting them.633
Competency.—
The word "competent" used in this section has reference to the jurisdiction of a Court.
Jurisdiction means the extent of the authority of a Court to administer justice not only with
reference to the subject-matter of the suit but also to the local and pecuniary limits of its
jurisdiction. In other words, a Court is said to be competent to try a civil suit when it has (i)
territorial jurisdiction; (ii) pecuniary or monetory jurisdiction; and (iii) jurisdiction with
regard to subject-matter.
The words "Courts of the lowest grade" refer only to Courts to which the Civil Procedure
Code applies.
S. 16
The object of the section is to limit the territorial jurisdiction of Courts in regard to property.
The explanation attached to the section makes it clear that Courts have no power to entertain
suits in respect of properties situate outside India.642
Immovable Property.—
Under the Code there is no definition of immovable property. However, it has been defined
under section 3(26) of the General Clauses Act, 1985 and "immovable property" includes—
(a) land;
(b) benefits to arise out of land and
(c)things attached to the earth; or permanently fastened to anything attached to the earth.
Under section 3 of the Transfer of Property Act, 1882, the term "immovable property" does
not include standing timber, growing crops and grass.
We thus find that the Transfer of Property Act excludes certain things while the General
Clauses Act, 1895 includes certain things under the head "immovable property".
Reading the definition of the General Clauses Act with the present section the term includes
the following:
(i) land;
(ii) benefits to arise out of land; and
(iii) things attached to the earth except standing timber, growing crops and grass.
There is no need to give any explanation with regard to clause (a) to (c) of this section as
these relate to immovable property directly which has been explained above.
Proviso to the section.—
This provides that the suits to obtain relief respecting, or compensation for wrong to,
immovable property may be instituted at the option of the plaintiff either in the Court within
the local limits of whose jurisdiction, the property is situated or in the Court within local
limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on
business or personally works for gains, provided the following conditions are satisfied:
(i) that the property is held by or on behalf of the defendant; and
(ii) that the relief sought can be entirely obtained through the personal obedience of the
defendant; and
(iii) the property is situated in India.
The proviso does not apply when the property is possessed by the plaintiff himself. This
proviso is based on the well-known maxim, equity acts in personam whereby the Court looks
to the fulfilment of its decree to the person of the defendant.648
The proviso cannot be used to enlarge the scope of the principal section. It applies to only
those categories of cases provided in clauses (a) to (f) which are limited to instances where
the relief asked for, can entirely be obtained by compelling the personal obedience of the
defendant.

OBJECTION ON JURISDICTION

The views expressed by the Supreme Court in the DLF Universals case (supra) has been
reiterated in a later decision. In para 23 of the judgment, S.B. Sinha, J., has observed as
follows:
“23. We may, however hasten to add that a distinction must be made between a decree
passed by a court which has no territorial or pecuniary jurisdiction in the light of Section 21
of the Code of Civil Procedure; and a decree passed by a court having no jurisdiction in
regard to the subject matter of the suit. Whereas in the former case, the appellate court may
not interfere with the decree unless prejudice is shown, ordinarily the second category of the
cases would be interfered with.”

In another decision, the Supreme Court has held that it is permissible to raise objection to the
jurisdiction as any stage when the objection is as regards the subject matter of the suit.3 It has
been observed in the above case as follows:
“19. A distinction, however, must be made between a jurisdiction with regard to subject-
matter of the suit and that of territorial and pecuniary jurisdiction. Whereas in the case
falling within the former category the judgment would be a nullity, in the latter it would not
be. It is not a case where the Tribunal had no jurisdiction in relation to the subject-matter of
claim. As a matter of fact the civil court had no jurisdiction to entertain the suit. If the
Tribunal had the jurisdiction to entertain a claim petition under the Motor Vehicles Act, in
our opinion, the Court should not have, in the absence of any finding of sufferance of any
prejudice on the part of the first respondent, entertained the appeal.”

Section 21 of the Code does not apply to High Court in exercise of its original civil
jurisdiction. Oriental Bank of Commerce v SK Agarwal, 2008 AIHC (NOC) 610 (Cal) : AIR
2008 Cal 148 ;
APD No 179 of 2001, Dt 15 May 2008 (DB).
Objection not taken at the earliest cannot be allowed to be taken at subsequent stage. Harsad
CL Modi v DLF Universal Ltd, AIR 2005 SC 4446 .

The policy of legislature has been to treat objection to jurisdiction both pecuniary and
territorial as technical. It is not open to consideration by an appellate Court, unless there has
been a prejudice on the merits. Kiran Singh v Chaman Paswan, AIR 1954 SC 340 (342) :
(1955) 1 SCR 117 : (1954) 2 MLJ 60
: 1954 ALJ 551
An objection to territorial jurisdiction of a Court before Court of appeal cannot be entertained
in absence of evidence of failure of justice in consequence of trial in wrong Court. In order
that an objection to the place of suing may be entertained by an appellate or revisional Court,
following three conditions must be fulfilled, namely, (1) The objection was taken to the Court
of first instance, (2) It was taken at the earliest possible opportunity and in cases where issues
are settled, at or before such settlement, (3) there has been a consequent failure of justice. All
these three conditions must co-exist. Pathumma v Kuntalan Kutty, AIR 1981 SC 1683 :
(1981) 3 SCC 589
A distinction must be made between a jurisdiction with regard to subject matter of the suit
and that of territorial and pecuniary jurisdiction. If the case of raising objection falls within
the former category the judgment would be nullity, in the latter it would not be. Mantoo
Sarkar v Oriental Insurance Co Ltd, AIR 2009 SC 1022 (1026).

S 21A
Supreme Court in the case of Subhas Mahadevasa Habib,97 in the following words:
Though Section 21A of the Code speaks of a suit not being maintainable for challenging the
validity of a prior decree between the same parties on a ground based on an objection as to
the place of suing, there is no reason to restrict its operation only to an objection based on
territorial jurisdiction and excluding from its purview a defect based on pecuniary
jurisdiction. In the sense in which the expression place of suing has been used in the Code it
could be understood as taking within it both territorial jurisdiction and pecuniary
jurisdiction. Section 15 of the Code deals with pecuniary jurisdiction and, Sections 15 to 20
of the Code deals with place of suing. The heading place of suing covers Section 15 also.
This Court in the Bahrein Petroleum Co. Ltd. v. P.J. Pappu [(1996) 1 SC R 461 ] made no
distinction between Section 15 on the one hand and Sections 16 to 20 on the other, in the
context of Section 21 of the Code. Even otherwise, considering the interpretation placed by
this court on Section 11 of the Suits Valuation Act and treating it as equivalent in effect to
Section 21 of the Code of Civil Procedure, as it existed prior to the amendment in 1976, it is
possible to say, especially in the context of the amendment brought about in Section 21 of the
Code by Amendment Act 104 of 1976, that Section 21A was intended to cover a challenge to
a prior decree as regards lack of jurisdiction, both territorial and pecuniary, with reference
to the place of suing, meaning thereby the court in which the suit was instituted.

BAR ON JURISDICTION
One test is whether the special statute which excludes such jurisdiction has used clear and
unambiguous words indicating that intention. Another test is: Does the said statute provide
for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the
relevant order under its material provision?24
The exclusion of Civil Court's Jurisdiction should not be readily inferred. The statute ousting
jurisdiction of Civil Court must do so in express terms or by use of such terms as would
necessarily lead to such inference.27
An existence of special remedy under special statute does not necessarily oust the jurisdiction
of civil Court to entertain the suit.29
Provision excluding jurisdiction of civil court should be construed strictly and the burden to
prove such exclusion lies on party who raises such contention.33

RES JUDICATA
The principle of res judicata is founded on three principles which are non-negotiable in any
civilised version of jurisprudence, namely:
(1) no man should be vexed twice for the same cause,
(2) it is in the interest of State that there should be an end to a litigation,
(3) a judicial decision must be accepted as correct. [Gangai Yinayagar Temple v Meenakshi
Ammal, (2009) 9 SCC 757 (769).]

Res judicata means "a thing adjudicated" that is, an issue that is finally settled by judicial
decision. The plea of res judicata is a restraint on the right of a plaintiff to have an
adjudication of his claim.

An order passed without jurisdiction is nullity. It would not attract principle of res judicata.
[Ashok Layland Ltd v State of TN, AIR 2004 SC 2836 (2861) ]
The rule of res judicata is not applicable to decisions on pure question of law such as one are
jurisdiction of the Court. [ Isabella Johnson v MA Susai, AIR 1991 SC 993 ]
It is well-settled that in order to decide whether a decision in an earlier litigation operates as
res judicata, the Court must look at the nature of the litigation, what were the issues raised
therein, and what was decided in it. [ Mysore SE Board v Bangalore WC & S Mills, AIR 1963
SC 1128 (1134) : 1963 Supp (2) SCR 127 ]

Conditions of res judicata.—

In order to constitute a matter as res judicata, the following conditions must be there:
(i) There must be two suits one former suit and the other subsequent suit;
(ii) The Court which decided the former suit must be competent to try the subsequent suit;
(iii) The matter directly and substantially in issue must be the same either actually or
constructively in both the suits;
(iv) The matter directly and substantially in issue in the subsequent suit must have been heard
and finally decided by the Court in the former suit;
(v) The parties to the suits or the parties under whom they or any of them claim must be the
same in both the suits;
(vi) The parties in both the suits must have litigated under the same title.

Former suit-
Supreme Court has held in Venkataswara Prabhu v Krishna Prabhu, AIR 1977 SC 1268 :
(1977) 2 SCC 181 that "The expression "former suit", according to Explanation I of section
11, Civil Procedure Code, 1908, makes it clear that if a decision is given before the institution
of the proceeding which is sought to be barred by res judicata, and that decision is allowed to
become final or becomes final by operation of law, a bar of res judicata would emerge".

Former court to be competent to try subsequent suit

Under section 11, it is necessary that the Court trying the former suit should have been
competent to try the subsequent suit itself. [ Mylavarapu C Sanyasi Prasad Rao v Runku
Lakshamayya, AIR 1977 AP 143 ]
The plain and grammatical meaning of the word "suit" occurring in clause "in a Court
competent to try such subsequent suit or the suit in which such issue has been subsequently
raised" of section 11 of Code of Civil Procedure, 1908 includes the whole of the suit and not
a part of the suit. It is whole of the suit which should be within the competence of the Court
at the earlier time and not a part of it. [Gulab Bai v Manphool Bai, AIR 1962 SC 214 (218)]
Explanation VIII was inserted by the Amending Act of 1976 in order to ensure that the
decisions of the Courts of limited jurisdiction, in so far such decisions are within the
competence of the Courts of limited jurisdiction, must operate as res judicata in a subsequent
suit, although the Courts of limited jurisdiction may not be competent to try such subsequent
suit.

Matter directly and substantially in issue.—

According to Mulla, the matters in issue may be classified in two broad heads—
(1) matters directly and substantially in issue and
(2) matters collaterally or incidentally in issue.

(a) Matters directly and substantially in issue.—Matters directly and substantially in

issue have further been sub-divided into: (A) Actually in issue and (B)
Constructively in issue.

(A) Actually in issue.—The question whether a matter was directly and substantially in issue
in the former suit has to be decided (a) on the pleadings in the former suit; (b) the issue struck
therein and; (c) the decision in the suit.
Further, it depends upon whether a decision on such an issue will materially affect the
decision of the suit. [ Isher Singh v Sarwan Singh, AIR 1965 SC 948 ]
If an issue was "necessary" to be decided for adjudicating on the principal issue and was
decided. Then it would have to be treated as directly and substantially in issue and if it is
clear that the judgment was in fact based upon that decision then it would be res judicata in a
latter case. The expression "Collaterally and incidentally" in issue implies that there is
another matter which is "directly and substantially" in issue. [ Ajjadnashin Syed Md BE Edr v
Musa Dadabhai Ummer, AIR 2000 SC 1238 ]
Questions raised and decided at the express request of the parties must be taken to have been
directly and substantially in issue. [Benaras Ice Factory v Amar Chand Vadnagar, AIR 1961
Cal 422]
The "matter cannot be directly in issue" unless it has been alleged by one party and either
denied or admitted expressly or impliedly by the other (Explanation III). It is not enough that
the matter was alleged by one party.
At the same time it is not necessary that a distinct issue should have actually been framed.
[Narayani v Durgalal, AIR 1968 Raj 94]
A matter must be held to be directly and substantially in issue if the Court considers the
adjudication of the issue to be material and essential for its decision. [ Laxman v Saraswathi,
AIR 1959 Bom 125 ]
Even an erroneous decision on a question of law operates as res judicata between the parties
to it. The correctness or otherwise of a judicial decision has no bearing upon the question
whether or not it operates as res judicata.
It follows that the rule of res judicata does not depend on the identity of subject-matter but on
the identity of issue.[ Nanda Lal Roy v Pramatha Nath Roy, AIR 1933 Cal 222]
Matter in issue thus is distinct from the subject-matter and the object of the suit and also from
the relief that may be asked for in the suit and the cause of action on which the suit is based
and therefore, even if in a case where a subject-matter, the object, the relief claimed and the
cause of action are different, the rule of res judicata can apply. [Abdul Gani v Nabendra
Kishore Roy, AIR 1930 Cal 47]
(B) Constructively in issue (Explanation IV)—(Constructive Res Judicata).—The principle
underlying Explanation IV is that where the parties have had an opportunity of controverting
a matter, that should be taken to be the same thing as if the matter had been actually
controverted and decided.[ Alluri China Bapanna v Sri Mutangi Jaggiah, AIR 1939 Mad
818]
An adjudication is conclusive and final not only as to the actual matters determined but as to
every other matter which the parties might have litigated and have had decided as incidental
to or essentially connected with the subject-matter of the litigation.
Explanation V to section 11 of the Code provides that any relief claimed in the plaint which
is not expressly granted by the decree, shall be deemed to have been refused.
The doctrine of constructive res judicata embodied in Explanation IV will apply to execution
proceedings. The doctrine of constructive res judicata will apply to execution proceedings to
the extent where a judgment-debtor fails to raise all his objections to the application for
execution of the decree made by the decree-holder which he might and ought to have raised
and the application has been ordered to proceed, then all such objections will be deemed to
have been impliedly decided against the judgment-debtor and the judgment-debtor thereafter
cannot raise the same objections in a subsequent execution of the same decree. [Dulabibi v
Parmanand Das, AIR 1940 Pat 251]

(b) Matters collaterally or incidentally in issue.—Decisions on matters not alleged and

denied or admitted within the meaning of Explanation III are decisions on matters
incidental and collateral to the main issue in the case and will not operate as res
judicata in a subsequent suit.

Finally Heard and Decided

where in the judgment and decree in the former suit it is stated that it is to be subject to a
decision of Higher Court, the decision is not a final one.
Similarly, when the former suit is dismissed on the ground of limitation the question of title
raised therein cannot be said to have been finally decided. [Har Swarup v Anand Swarup,
AIR 1942 All 410]
It has been held by the Supreme Court in Kewal Singh v Lajwanti, AIR 1980 SC 161 : (1980)
1 SCC 290 as follows: It is well settled that one of the essential conditions of res judicata is
that there must be a formal adjudication between the parties after full hearing. In other words,
the matter must be finally decided between the parties. Here also at a time when the plaintiff
relinquished her first cause of action the defendant was nowhere in the picture, and there
being no adjudication between the parties, the doctrine of res judicata does not apply.
Where an appeal is preferred against only a part of the decree covering one lot of property,
the decree covering rest of the property becomes final.
The following conditions must be fulfilled before any matter is said to have been "heard
and finally decided":
The decision in the former suit must have been on merits.—In order that a matter may be said
to have been "heard and finally decided", the decision in the former suit must have been on
the merits. Hence, it could not be said to be heard and finally decided, if the former suit was
dismissed:
(i) for want of jurisdiction, or
(ii) for default of plaintiff's appearance under O IX, rule 8, or
(iii) on the ground of non-joinder of parties, or misjoinder of parties, or
(iv) for failure to furnish security for costs, or
(v) for want of a cause of action, or
(vi) for want of notice, or
(vii) on the ground that it is premature, etc.
Two suits having common issues were decided by the trial Court on merits. Then two appeals
were filed therefrom. One of them was dismissed on the ground of limitation or default in
printing with the result the trial Court's decision stood confirmed. The decision of the appeal
Court would be res judicata. The appeal Court must be deemed to have heard and finally
decided the matter. In such a case the result of the decision of the appeal Court is to confirm
the decision of the trial Court, given on merits, and if that is so, the decision of the appeal
Court would be res judicata. [Sheodan Singh v Daryao Kunwar, AIR 1966 SC 1332 (1339)]
The decision in the former suit must have been necessary to the determination of that suit.—It
has been held by the Privy Council that finding on an unnecessary or irrelevant issue cannot
operate as res judicata. A finding on an issue cannot be said to be necessary to the decision of
a suit unless the decision was based upon that finding.[ Sheodan Singh v Daryao Kunwar,
AIR 1966 SC 1332 (1339)]

Same parties or parties under whom any of them claim.—This condition is based on the
well-known principle that judgments and decrees bind only parties and privies.
If the parties in two suits are the same and the subject matter is also the same. But the issues
and cause of action are different. In such a case, in the absence of pleadings issues and
finding on those issues, the rule of res judicata cannot be invoked. [Deva Ram v Ishwar
Chand, AIR 1996 SC 378 (382)]
Omission of party's name in the formal order by oversight will not deprive him of his
character of a party.[ Kalipada De v Dwijapad Dass, AIR 1930 PC 22] Similarly, persons
whose names are introduced on record by fraud and without their knowledge are not parties.
[ J Kotamma v Sinhachalam, AIR 1969 AP 76 (DB)] Likewise, persons wrongly made parties
in execution proceedings are not parties. A person merely interested in litigation is not a
party.
The Supreme Court also has considered the effect of Explanation VI of section 11 and held
thus: The principle of representation of the interest of a person, not impleaded by name in a
judicial proceeding, through a named party is not unknown. A karta of Joint Hindu Family
has always been recognised as a representative of the other members of Joint Hindu Family,
and so has been a trusty. In cases where the provisions of O I, rule 8 of Code of Civil
Procedure are attracted a named party in a suit represents the other persons interested in the
litigation, and likewise a receiver appointed in one case represents the interest of the litigating
parties in another case against a stranger. [Surayya Begum v Mohd Usman, (1991) 3 SCC
114]
Similarly, the real owner is entitled to the benefits under a decree obtained by his benamidar
against a stranger and at the same time is also bound by the decision. Examples can be
multiplied.
An entire body of persons having common interest in the trust is barred by constructive res
judicata, from reagitating matters directly and substantially in issue in earlier suit under
section 92 of the Code.

S. 12 - BAR TO FURTHER SUIT

Where a plaintiff is precluded by rules from instituting a further suit in respect of any
particular cause of action, he shall not be entitled to institute a suit in respect of such cause
of action in any Court to which this Code applies.

This section was necessitated by the transfer of certain of the provisions of the Code of 1882
to the Rules. The following is a list of the rules that bar a fresh suit in respect of the same
cause of action:
Order 2, r 2 Omission to sue in respect of part of a claim.
Order 9, r 9 Decree against plaintiff by default bars a fresh suit.
Order 22, r 9 Abatement of suit bars a fresh suit.
Order 23, r 1 Withdrawal of suit without leave of court bars a fresh suit.
The word rules means rules contained in the First Schedule or made under s 122 or s 125.
Hence, the section applies to suits precluded under the rules and not on account of some
provision in some other statute. [Vineet Kumar v. Bhagwan Dei, AIR 1978 All 312]

S. 13 - WHEN FOREIGN JUDGMENT NOT CONCLUSIVE

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon
between the same parties or between parties under whom they or any of them claim litigating
under the same title except—
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognise the law of 2[India] in cases in which such law is
applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural
justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in 2[India].
An act of state is not a judgment, and it cannot, therefore, have the effect of res judicata.
A foreign judgment must be understood to mean an adjudication by a foreign court upon a
matter before it and not the reasons for the order made by it, or otherwise s 13 would not be
applicable to an order made by it where no reasons are given. [Brijlal Ramjidas v.
Govindram Gobordhandas, AIR 1947 PC 192] The present section provides that a foreign
judgment may operate as res judicata except in the six cases specified in the section, and of
course, in order to so operate the other conditions, s 11 must be fulfilled. [Indar v. Thakur,
AIR 1921 Lah 20.]
The foreign court must be competent to try the suit, not only as regards pecuniary limits of its
jurisdiction and the subject matter of the suit, but also with reference to its territorial
jurisdiction and the competency of the jurisdiction of the foreign court which is to be judged
not by the territorial law of the foreign state, but by the rules of private international law.
A judgment of an Indian court can only be enforced by proceedings in execution. A foreign
judgment, however, may be enforced by proceedings in execution in certain specified cases
only (ss 44 and 44A). In other cases, a foreign judgment can only be enforced by a suit upon
the judgment. That is to say, if A has obtained a decree against B for Rs 5,000 in a French
court at Pondicherry, and if B has got no property in Pondicherry to satisfy the decree, but has
got property in Bombay, A may bring a suit against B in Bombay to recover the amount of the
judgment. The suit may be brought within three years from the date of the judgment, and if a
decree is passed in favour of A, he may proceed to execute it by attachment and sale of B's
property in Bombay.
Illustration
A sues B in a foreign court. If the suit is dismissed, the decision will operate as a bar to a
fresh suit by A in India on the original cause of action, unless the decision is inoperative by
reason of one or more of the circumstances specified in the section. If a decree is passed in
favour of A in the foreign court and A sues B on the judgment in India, B will be precluded
from putting in issue the same matters that were directly and substantially in issue in the suit
in the foreign court, unless the decision of the foreign court is inoperative on any one of the
six grounds specified in the section.
S. 14 - PRESUMPTION AS TO FOREIGN JUDGMENTS
The Court shall presume upon the production of any document purporting to be a certified
copy of a foreign judgment, that such judgment was pronounced by a Court of competent
jurisdiction, unless the contrary appears on the record; but such presumption may be
displaced by proving want of jurisdiction.
 1. Suits by indigent persons
a. O.33 rule 1,1a,2,3,5,10,11,15,17,18

State government is also made party to the matter

ORDER 33: SUITS BY INDIGENT PERSONS

RULE 1 - Suits may Who is an indigent person?

be instituted by
indigent person 1. not possessed of sufficient means to enable him to pay the
fee prescribed by law for the plaint in such suit
2. where no such fee is prescribed, he is not entitled to
property worth one thousand rupees

Here, two things have to be excluded:

i) subject matter of the dispute

ii) property exempt from attachment in execution of a
decree

Any property which is acquired by a person after the presentation

of his application for permission to sue as an indigent person, and
before the decision of the application, shall be taken into account in
considering the question whether or not the applicant is an indigent
person. Court may ask him to pay the fees later.

- Court can withdraw consent and require the party to pay the
court fees
- First assessment done at time of filing but subsequently may
be done at any time
- After inquiry, may cease to be an indigent person

Where the plaintiff sued in a representative capacity, the question

whether he is an indigent person shall be determined with reference
to the means possessed by him in such capacity.

- Personal assents will not be attached

- It may not be a representative suit as in such a case, assets
of all persons will be taken into account

Rep may be allowed to sue as an indigent but once the final

decision comes, the court based on the relation b/w rep and
principal may ask to pay the court fees.

RULE 1A - Inquiry Every inquiry into the question whether or not a person is an
into the means of an indigent person shall be made,
indigent person
- in the first instance, by the chief ministerial officer of the
Court,
 - unless the Court otherwise directs, and
- the Court may adopt the report of such officer as its own
finding
- or
- may itself make an inquiry into the question.

RULE 2 - Contents 1. shall contain the particulars required in regard to plaints in

of application suits
2. a schedule of any movable or immovable property
belonging to the applicant, with the estimated value, shall
be annexed
3. shall be signed and verified in the manner prescribed for the
signing and verification of pleadings and any other plaint –
will subsequently be treated as a plaint

Even though the contents are that of a plaint, we call it an

APPLICATION for the courts to differentiate this with normal
plaints.
RULE 3 - - shall be presented to the Court by the applicant in person,
Presentation of - unless he is exempted from appearing in Court, in which
application case the application may be presented by an authorized
agent who can answer all material questions relating to the
application, and
- who may be examined in the same manner as the party
represented by him might have been examined had such
party attended in person

PROVISO - where there are more plaintiffs than one, it shall be

sufficient if the application is presented by one of the plaintiffs.

Refers to joinder of parties and not representative suit. Any one of

them may file the suit but everyone’s property will be looked into
for indigency.
RULE 5 - Rejection 1. where it is not framed and presented in the manner
of application prescribed by rules 2 and 3
2. where the applicant is not an indigent persons
3. where he has, within two months next before the
presentation of the application disposed of any property
fraudulently or in order to be able to apply for permission to
sue as an indigent person Provided that no application shall
be rejected if, even after the value of the property disposed
of by the applicant is taken into account, the applicant
would be entitled to sue as an indigent person
4. where his allegations do not show a cause of action
5. where he has entered into any agreement with reference to
the subject-matter of the proposed suit under which any
other person has obtained an interest in such subject-matter
6. where the allegations made by the applicant in the
application show that the suit would be barred by any law
for the time being in force
 7. where any other person has entered into an agreement with
him to finance the litigation.

RULE 10 - Costs If the decree is in favour of the indigent person,

were indigent person
succeeds - Court shall calculate the amount of court-fees which would
have been paid by the plaintiff if he had not been permitted
to sue as an indigent person
- such amount shall be recoverable by the State Government
any party order by the decree to pay the same and
- shall be a first charge on the subject-matter of the suit (court
won’t ask to sell the property and pay the court fee)
- some arrangement where the oncome arising out of the
property will go to the court before anyone else (preferred
over all others).

RULE 11 - Where –
Procedure where
indigent person fails - plaintiff fails in the suit or
- the permission granted to him to sue as an indigent person
has been withdrawn, or
- where the suit is withdrawn or dismissed

Why?

- because the summons for the defendant to appear and

answer has not been served upon him in consequence of the
failure of the plaintiff to pay the court-fee or postal charges
(if any) chargeable for such service or to present copies of
the plaint or concise statement, or
- because the plaintiff does not appear when the suit is called
on for hearing,

the Court shall order the plaintiff, or any person added as a co-
plaintiff to the suit, to

- pay the court-fees which would have been paid by the

plaintiff if he had not been permitted to sue as an indigent
person.

RULE 15 - Refusal - An order refusing to allow the applicant top sue as indigent
to allow applicant to person shall be a bar to any subsequent application of the
sue as indigent like nature by him in respect of the same right to sue; but
person to bar - the applicant shall be at liberty to institute a suit in the
subsequent ordinary manner in respect of such right; Provided that the
application of like plaint shall be rejected if he does not pay, either at the time
nature of the institution of the suit or within such time thereafter as
the Court may allow, the costs (if any) incurred by the State
 Government and by the opposite party in opposing his
application for leave to sue as an indigent person.

RULE 17 - Defence Any defendant, who desire to plead a set-off or counter-claim, may
by an indigent be allowed to set up such claim as an indigent person, and the rules
person contained in this Order shall so far as may be, apply to him as if he
were a plaintiff and his written statement were a plaint.

Two requirements:

1. written statement to be given with all contents

2. affidavit disclosing all property and permission to sue as
indigent

RULE 18 - Power of 1. Subject to the provisions of this Order, the Central or State
Government to Government may make such supplementary provisions as it
provide for free legal thinks fit for providing free legal services to those who have
services to indigent been permitted to sue as indigent persons.
persons 2. The High Court may, with previous approval of the State
Government, make rules for carrying out the supplementary
provisions made by the Central or State Government for
providing free legal services to indigent persons referred to
in sub-rule (1), and such rules may include the nature and
extent of such legal services, the conditions under which
they may be made available, the matters in respect of which,
and the agencies through which, such services may be
rendered.]

If your application as an indigent person fails, there are 3 ways to proceed:

- Appeal
- Do away with the suit and file an ordinary one
- Court can ask you to pay the court fee and proceed with the suit as a normal one
 2. Interpleader

Section 88
Here, the plaintiff has no right or interest in the subject matter.
Difference from normal suit:
- The court may decide in the first instance
- Additional documents or disclosures are required

Where two or more persons claim adversely to one another the same debt, sum of money or
other property, movable or immovable, from another person, who claims no interest therein
other than for charges or costs and who is ready to pay or deliver it to the rightful claimant,
such other person may institute a suit of interpleader against all the claimants for the purpose
of obtaining a decision as to the person to whom the payment or delivery shall be made and
of obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be
decided, no such suit of interpleader shall be instituted.

ORDER 35: INTERPLEADER

RULE 1 - Plaint in In addition to the other statements necessary for plaints, it should
interpleader-suit state—

1. that the plaintiff claims no interest in the subject-matter in

dispute other than for charges or costs
2. the claims made by the defendants severally
3. that there is no collusion between the plaintiff and any of
the defendants.

RULE 2 - Payment Where the thing claimed is capable of being paid into Court or
of thing claimed into placed in the custody of the Court, the plaintiff may be required to
Court so pay or place it before the he can be entitled to any order in the
suit.

RULE 3 - Procedure Where any of the defendants in an interpleader-suit is actually

where defendant is suing the plaintiff in respect the subject-matter of such suit, the
suing plaintiff Court in which the suit against the plaintiff is pending shall,

on being informed by the Court in which the interpleader-suit has

been instituted,

- STAY the proceedings as against him; and

- his costs in the suit so stayed may be provided for in such
suit; but if, and in so far as, they are not provided for in that
suit, they may be added to his costs incurred in the
interpleader-suit.

THIS RULE Creates an exception to res sub judice and the

subsequent suit filed by the interpleader prevails (to avoid
multiplicity of suits)
RULE 4 - Procedure The Court may—
at first hearing
(a) declare that the plaintiff is discharged from all liability to the
defendants in respect of the thing claimed, award him his costs, and
dismiss him from the suit; or

(b) if it thinks that justice or convenience so require, retain all

parties until the final disposal of the suit.

(2) Where the Court finds that the admissions of the parties or other
evidence enable it to do so, it may adjudicate the title to the thing
claimed.

(3) Where the admissions of the parties do not enable the Court so
to adjudicate, it may direct—

- that an issue or issues between the parties be framed and

tried, and
- that any claimant be made a plaintiff in lieu of or in addition
to the original plaintiff,

and shall proceed to try the suit in the ordinary manner.

RULE 5 - Agents Nothing in the Order shall be deemed to enable agents to sue their
and tenants may not principles, or tenants to sue their landlords, for the purpose of
institute interpleader compelling them to interplead with any person other than persons
suits making claim through such principals or landlords.

Illustrations

(a) A deposits a box of jewels with B as his agent. C alleges that the
jewels were wrongfully obtained from him by A, and claims them
from B. B cannot institute an interpleader-suit against A and C.

(b) A deposits a box of jewels with B as his agent. He then writes to

 C for the purpose of making the jewels a security for a debt due
from himself to C. A afterwards alleges that C's debt is satisfied,
and C alleges the contrary. Both claim the jewels from B. B may
institute in interpleader-suit against A and C.

3. First appeal (from original decrees)

APPEAL – it is a memorandum you draft and present before a higher court against the decree
passed by the original court.
Either p or d may prefer an appeal
In some cases, it is not allowed e.g. small cases less than 10k in value

Appeal from original decree – s.96 + o.41

Second appeal – s.97 + o.42

SECTION 96 - 1. Save where otherwise expressly provided in the body of

Appeal from original this Code or by any other law for the time being in force,
decree. an appeal shall lie from every decree passed by any Court
exercising original jurisdiction to the Court authorized to
hear appeals from the decisions of such Court.
2. An appeal may lie from an original decree passed ex parte.
3. No appeal shall lie from a decree passed by the Court with
the consent of parties i.e. if the matter was settled through
court or compromised – no appeal as there is consent. The
same goes for out of court settlement or withdrawal.

Decision from court of competent jurisdiction, appeal lies to the

court immediately higher in hierarchy.

Appeal may be converted into a revision by virtue of s. 151 – in

cases where appeal is not allowed and contents are the same.

Aggrieved does not mean there is a liability.

SECTION 97 - Where any party aggrieved by a preliminary decree passed after
Appeal from final the commencement of this Code does not appeal from such
decree where no decree, he shall be precluded from disputing its correctness in any
appeal from
preliminary decree. appeal which may be preferred from the final decree.

No appeal against preliminary decree = admittance to its contents.

An appeal against the final decree cannot appeal against prelim
decree.

Appeals cannot also be clubbed together as the maters may be

completely different.
SECTION 98 - (1) Where an appeal is heard by a Bench of two or more Judges,
Decision where the appeal shall be decided in accordance with the opinion of such
appeal heard by two Judges or of the majority (if any) of such Judges.
or more Judges.
(2) Where there is no such majority which concurs in a judgment
varying or reversing the decree appealed from, such decree shall
be confirmed:

Provided that where the Bench hearing the appeal is composed of

two Judges belonging to a Court consisting of more than two
Judges, and the Judges composing the Bench differ in opinion on
a point of law, they may state the point of law upon which they
differ and the appeal shall then be heard upon that point only by
one or more of the other Judges, and such point shall be decided
according to the opinion of the majority (if any) of the Judges
who have heard the appeal, including those who first heard it.

(3) Nothing in this section shall be deemed to alter or otherwise

affect any provision of the letters patent of any High Court.

Even bench – may refer to another judge of the same court and
then majority is seen.

No. of judges for assistance will always be odd – won’t lead to

miscarriage of justice because had there been any apparent error,
it would not have escaped the opinion of the judges.
SECTION 107 - (1) Subject to such conditions and limitations as may be
Power of Appellate prescribed, an Appellate Court shall have power-
court
(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence

to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same
powers and shall perform as nearly as may be the same duties as
are conferred and imposed by this Code on Courts of original
 jurisdiction in respect of suits instituted therein.

- Appeals are treated as continuous of the same suit.

Judgment in appeal:

- To be pronounced in open court

- Entire judgment need not be pronounced, only points of
determination, final decision and order need to be
pronounced.
- While pronouncing/drafting, you can also make reference
to those things which have not been done at your instance.

Contents:

- The points for determination

- Decision
- Reason
- Relief in case of reversal/variation
- The date of judgment
- Signature of judges – the majority have to sign entire
judgment, dissenting have to spin their opinion.

SECTION 108 - The provisions of this Part relating to appeals from original
Procedure in appeals decrees shall], so far as may be, apply to appeals-
from appellate
decrees and orders (a) from appellate decrees, and

(b) from orders made under this Code or under any

special] or local law in which a different procedure is not
provided.
O.41 – APPEALS FROM ORIGINAL DECREES

RULE 1 - Form of What to accompany memorandum-

appeal.
- Every appeal shall be preferred in the form of a
memorandum signed by the appellant or his pleader and
presented to the Court or to such officer as it appoints in
this behalf.
- The memorandum shall be accompanied by a copy of the
decree appealed from and (unless the Appellate Court
dispenses therewith)
- of the judgment on which it is founded (so you can list the
reasons for discontent – you have to wait till the day a
copy of the judgment is furnished or made available to you
before appealing – but this will be deducted from the
period of limitation)

[Provided that where two or more suits have been tried together
and a common judgment has been delivered therefor and two or
more appeals are filed against any decree covered by that
judgment, whether by the same appellant or by different
appellants, the Appellate Court dispense with the filing of more
than one copy of the judgment.]
 i.e. where there is a subsequent appeal from the appellate court,
the court can dispense with the requirement of the copy of the
judgment. + appeals that come from different parties but have the
same substantial question of law may be clubbed together.

Contents of memorandum—

The memorandum shall set forth, concisely and under distinct

heads, the grounds of objection to the decree appealed from
without any argument or narrative; and such grounds shall be
numbered consecutively.

Where the appeal is against a decree for payment of money, the

appellant shall, within such time as the Appellate Court may
allow, deposit the amount disputed in the appeal or furnish such
security in respect thereof as the Court may think fit. – AS
SECURITY TO ENSURE THAT THE APPEAL IS NOT FOR
DELAY IN EXECUTION

Memo is similar to plaint but as it is a continuation of the suit, it

need not be elaborate.
RULE 2 - Grounds The appellant shall not except by leave of the Court, urge or be
which may be taken in heard in support of any ground of objection not set forth in the
appeal memorandum of appeal, but the Appellate Court in deciding the
appeal, shall not be confined to the grounds of objections set forth
in the memorandum of appeal or taken by leave of the Court
under this rule:

Provided that the Court shall not rest its decision on any other
ground unless the party who may be affected thereby has had a
sufficient opportunity of contesting the case on that ground.

- THE COURT MAY BRING in a new ground for appeal

but the parties have to be given a chance to be heard
RULE 3 - Rejection or (1) Where the memorandum of appeal is not drawn up in the
amendment of manner hereinbefore prescribed, it may be rejected, or be
memorandum returned to the appellant for the purpose of being amended
within a time to be fixed by the Court or be amended then
and there.
(2) Where the Court rejects any memorandum, it shall record
the reasons for such rejection.
(3) Where a memorandum of appeal is amended, the Judge, or
such officer as he appoints in this behalf, shall sign or
initial the amendment.

No court shall allow after the period of limitation has expired.

s.5 – exception – not applicable to suits – you can still file
application or appeal if you show sufficient cause.
 If after period of limitation, then the memorandum of appeal has
to be accompanied by application as per s.5 – but notice has to be
given to the respondent so that he is given an opportunity to
object.
RULE 4 - One of Where there are more plaintiff or more defendants then one in a
several plaintiff or suit, and the decree appealed from proceeds on any ground
defendants may obtain common to all the plaintiffs or to all the defendants, any one of
reversal of whole the plaintiffs or of the defendants may appeal from the whole
decree where it decree, and thereupon the Appellate Court may reverse or vary
proceeds on ground the decree in favour of all the plaintiffs or defendants, as the case
common to all may be.

Joint liability fixed on Ps or Ds – can object if the amount of

liability is different. One person may make the appeal and
disclose that there are other parties aggrieved similarly, then the
decision would apply to all Ps and Ds.
RULE 5 - Stay by There are two types:
Appellate Court - Stay on proceedings (in case of appeal against preliminary
decree)
- Stay on execution (appeal against final decree)

(1) An appeal shall not operate as a stay of proceedings under

a decree or order appealed from except so far as the
Appellate Court may order, nor shall execution of a decree
be stayed by reason only of an appeal having been
preferred from the decree; but the Appellate Court may for
sufficient cause order stay of execution of such decree.

Explanation—An order by the Appellate Court for the stay of

execution of the decree shall be effective from the date of the
communication of such order to the Court of first instance but an
affidavit sworn by the appellant, based on his personal
knowledge, stating that an order for the stay of execution of the
decree has been made by the Appellate Court shall, pending the
receipt from the Appellate Court of the order for the stay of
execution or any order to the contrary, be acted upon by the Court
of first instance.

(2) Stay by Court which passed the decree—Where an

application is made for stay of execution of an appealable
decree before the expiration of the time allowed for
appealing therefrom, the Court which passed the decree
may on sufficient cause being shown order the execution
to be stayed.
(3) No order for stay of execution shall be made under sub-
rule (1) or sub-rule (2) unless the Court making it is
 satisfied—

(a) that substantial loss may result to the party applying for
stay of execution unless the order is made;
(b) that the application has been made without unreasonable
delay; and
(c) that security has been given by the applicant for the due
performance of such decree or order as may ultimately be
binding upon him.

(4) Subject to the provisions of sub-rule (3), the Court may

make an ex parte order for stay of execution pending the
hearing of the application.
(5) Notwithstanding anything contained in the foregoing sub-
rules, where the appellant fails to make the deposit or
furnish the security specified in sub-rule (3) of rule 1, the
Court shall not make an order staying the execution of the
decree.

RULE 6 - Security in (1) Where an order is made for the execution of a decree from
case of order for which an appeal is pending, the Court which passed the
execution of decree decree shall, on sufficient cause being shown by the
appealed from appellant, require security to be taken for the restitution of
any property which may be or has been taken in execution
of the decree or for the payment of the value of such
property and for the due performance of the decree or
order of the Appellate Court, or the Appellate Court may
for like cause direct the Court which passed the decree to
take such security.
(2) Where an order has been made for the sale of immovable
property in execution of a decree, and an appeal is pending
from such decree, the sale shall, on the application of the
judgment- debtor to the Court which made the order, be
stayed on such terms as to giving security or otherwise as
the Court thinks fit until the appeal is disposed of.

2 kinds of decrees are appealed against:

i) Ordinary decree – party has not yet moved an
application for execution
ii) Decree where the execution has been initiated

No automatic stay is granted on appeal as sometimes only one or

two issues may be disputed and the decision may be in conformity
with the original decree.

Why is security required?

1. Restitution of any property which may be or has been
taken in execution of the decree
 2. payment of the value of such property
3. for the due performance of the decree or order of the
Appellate Court

- Original and app court can pass order for security

- The responsibility to take care of it lies with the original
court only
- From the time of admission of appeal till the time the first
hearing takes place, there is a certain procedure that must
be followed – procedure on admission of appeal
RULE 9 - registry of (1) Where a memorandum of appeal is admitted, the
memorandum of Appellate Court or the proper officer of that Court shall
appeal endorse thereon the date of presentation, and shall register
the appeal in a book to be kept for the purpose.
(2) Register of Appeals—Such book shall be called the
Register of Appeals.

RULE 10 - Appellate (1)
Court may require
appellant to furnish
security for costs
The Appellate Court may in its discretion, either before
the respondent is called upon to appear and answer or
afterwards on the application of the respondent, demand
from the appellant security for the costs of the appeal, or
of the original suit, or of both:

(REASON – if costs are to be awarded to the other party, the

court already has the amount)

Where appellant resides out of India—Provided that the

Court shall demand such security in all cases in which the
appellant is residing out of India, and is not possessed of
any sufficient immovable property within India other than
the property (if any) to which the appeal relates.

(2) Where such security is not furnished within such time as

the Court orders, the Court shall reject the appeal.

Security is obtained so that the property can be restituted if the

decree is reversed.
RULE 11 - Power to (1) The Appellate Court, after sending for the record if it thinks fit
dismiss appeal so to do, and after fixing a day for hearing the appellant or his
without sending notice pleader and hearing him accordingly if he appears on that day,
to Lower Court may dismiss the appeal without sending notice to the Court from
whose decree the appeal is preferred and without serving notice
on the respondent or his pleader. NO REASONS NEED TO BE
GIVEN.

(2) If on the day fixed or any other day to which the hearing may
be adjourned the appellant does not appear when the appeal is
called on for hearing, the Court may make an order that the appeal
 be dismissed.

(3) The dismissal of an appeal under this rule shall be notified to

the Court from whose decree the appeal is preferred.

(4) Where an Appellate Court, not being the High Court,

dismisses an appeal under sub-rule (1), it shall deliver a judgment,
recording in brief its grounds for doing so, and a decree shall be
drawn up in accordance with the judgment.

RULE 14 - (1) Notice of the day fixed under rule 12 shall be affixed in the
Publication and Appellate Court-house, and a like notice shall be sent by the
service of notice of Appellate Court to the Court from whose decree the appeal is
day for hearing appeal preferred, and shall be served on the respondent or on his pleader
in the Appellate Court in the manner provided for the service on a
defendant of a summons to appear and answer; and all the
provisions applicable to such summons, and to proceedings with
reference to the service thereof, shall apply to the service of such
notice.

(2) Appellate Court may itself cause notice to be served—Instead

of sending the notice to the Court from whose decree the appeal is
preferred, the Appellate Court may itself cause the notice to be
served on the respondent or his pleader under the provisions
above referred to.

(3) The notice to be served on the respondent shall be

accompanied by a copy of the memorandum of appeal.

(4) Notwithstanding anything to the contrary contained in sub-

rule (1), it shall not be necessary to serve notice of any proceeding
incidental to an appeal on any respondent other than a person
impleaded for the first time in the Appellate Court, unless he has
appeared and filed an address for the service in the Court of first
instance or has appeared in the appeal.

(5) Nothing in sub-rule (4) shall bar the respondent referred to in

the appeal from defending it.

Appellate court is to serve notice to

- Respondent
- Lower court (whose decree is in appeal)
- Court can proceed to not dismiss the appeal

RULE 16 - Right to (1) On the day fixed, or on any other day to which the hearing
may be adjourned, the appellant shall he heard in support
begin of the appeal.
(2) The Court shall then, if it does not dismiss the appeal at
once, hear the respondent against the appeal and in such
case the appellant shall be entitled to reply.

Appellant has the first right to be heard

1. Court may dismiss the appeal solely after hearing the

appellant
2. Court may proceed not to dismiss the appeal

RULE 17 - Dismissal (1) Where on the day fixed, or on any other day which the
of appeal for hearing may be adjourned, the appellant does not appear
appellants default when the appeal is called on for hearing, the Court may
make an order that the appeal be dismissed.

Explanation—Nothing in this sub-rule shall be construed as

empowering the Court to dismiss the appeal on the merits.

(2) Hearing appeal ex parte—Where the appellant appears and

the respondent does not appear the appeal shall be heard
ex parte,

There is an option to move application to same court to set aside

dismissal as this is only a minor default. There is a remedy for this
dismissal. The respondent is then heard and his stand is
communicated to the court – the appellant may reply to it.

After this, the appellant court will proceed to frame issues. But, if
the court believes that there is a certain point that needs to be
looked into or that evidence has not been properly taken, the court
can remand the matter back to the lower court. (rule 23)

It is not a RETRIAL which means that a trial has not been

properly conducted.

RULE 20 - Power to (1) Where it appears to the Court at the hearing that any
adjourn hearing and person who was a party to the suit in the Court from
direct persons whose decree the appeal is preferred, but who has not been
appearing interested to made a party to the appeal, is interested in the result of the
be made respondents appeal, the Court may adjourn the hearing to a future day
to be fixed by the Court and direct that such person be
made a respondent.
(2) No respondent shall be added under this rule, after the
expiry of the period of limitation for appeal, unless the
Court, for reasons to be recorded, allows that to be done,
on such terms as to costs as it thinks fit.

The court may add persons as As or Rs. There is a period of

 limitation for the same.
RULE 21 - Re- Where an appeal is heard ex parte and judgment is pronounced
hearing on application against the respondent, he may apply to the Appellant Court to re-
of respondent against hear the appeal; and, if he satisfies the Court that the notice was
whom ex parte decree not duly served or that he was prevented by sufficient cause from
made appearing when the appeal was called on for hearing, the Court
shall re-hear the appeal on such terms as to costs or otherwise as it
thinks fit to impose upon him.

If r does not appear, court can proceed ex-parte. The r may apply
for a re-hear of the appeal.

- The court has the power to call for additional evidence

which may also be required to be submitted to the lower
court.

RULE 23 - Remand of Where the Court from whose decree an appeal is preferred has
case by Appellate disposed of the suit upon a preliminary point and the decree is
Court reversed in appeal, the Appellate Court may, if it thinks fit, by
order remand the case, and may further direct what issue or issues
shall be tried in the case so remanded, and shall send a copy of its
judgment and order to the Court from whose decree the appeal is
preferred, which directions to re-admit the suit under its original
number in the register of civil suits, and proceed to determine the
suit; and the evidence (if any) recorded during the original trial
shall, subject to all just exceptions, be evidence during the trial
after remand.

When the court has already made up its mind to reverse the appeal

- Disposed of a suit at a preliminary point

- Decree is reversed in appeal

Appellate court is not convinced by the decision of the lower

court thus matter sent back (decision taken on a preliminary
ground – bad) AC will send order for remand.

Lower court has to:

1. Readmit the matter with original suit no.

2. Can only rely on evidence already taken

(either app court will direct to take add evidence or add evidence
will be taken when the existing is insufficient to decide)
RULE 23A - Remand Where the Court from whose decree an appeal is preferred has
in other cases disposed of the case otherwise than on a preliminary point, and
the decree is reversed in appeal and a re- trial is considered
necessary, the Appellate Court shall have the same powers as it
 has under rule 23.

Appeal is heard by app court but disposal of the suit is done by

the lower court.
RULE 24 - Where Where the evidence upon the record is sufficient to enable the
evidence on record Appellate Court to pronounce judgment, the Appellate Court may,
sufficient, Appellate after resettling the issues, if necessary, finally determine the suit,
Court may determine notwithstanding that the judgment of the Court from whose
case finally decree the appeal is preferred has proceeded wholly upon some
ground other than that on which Appellate Court proceeds.

Here, disposal is also done by app court

- Evidence recorded by the LC was sufficient to enable the

app court to pronounce judgment.
- Thus, AC does not have to take evidence or conduct
proceedings again
- AC has the discretion to resettle the issues and pass the
decision

RULE 25 - Where Where the Court from whose decree the appeal is preferred has
Appellate Court may omitted to frame or try any issue, or to determine any question of
frame issues and refer fact, which appears to the Appellate Court essential to the right
them for trial to Court decision of the suit upon the merits the Appellate Court may, if
whose decree necessary, frame issues, and refer the same for trial to the Court
appealed from from whose decree the appeal is preferred, and in such case shall
direct such Court to take the additional evidence required;

and such Court shall proceed to try such issues, and shall return
the evidence to the Appellate Court together with its findings
thereon and the reasons therefor within such time as may be fixed
by the Appellate Court or extended by it from time to time.

If there is some error by the LC then the AC will either frame (if
not done by LC), or list down the issues and refer the lower court
for trial by it. Only after these issues are determined, appellate
court will try.

Where the lower court has

1. Omitted to frame an issue

2. Framed an issue but omitted to try it
3. Omitted to determine a question of fact

The appellate court may frame issues and refer them for trial to
the lower court. This shall only be done when such newly framed
issues are essential for the right decision of the suit upon merits.

The AC can also give directions to collect additional evidence.

The LC or parties cannot object to it. The LC will submit its
 findings to the AC which then allows the memorandum of
objection to be filed by the parties to the AC.

The AC will hear the objections and then proceed to pass the
judgment. Such reference by the AC will be in the form of an
order.

Also submission pf finding by LC is done only here as decision

has to be made by the AC.
RULE 27 - Production (1) The parties to an appeal shall not be entitled to produce
of additional evidence additional evidence, whether oral or documentary, in the
in Appellate Court Appellate Court, But if—

(a) the Court from whose decree the appeal is preferred has
refused to admit evidence which ought to have been admitted, or

(aa) the party seeking to produce additional evidence, establishes

that notwithstanding the exercise of due diligence, such evidence
was not within his knowledge or could not, after the exercise of
due diligence, be produced by him at the time when the decree
appealed against was passed, or

(b) the Appellate Court requires any document to be produced or

any witness to be examined to enable it to pronounce judgment, or
for any other substantial cause,

the Appellate Court may allow such evidence or document to be

produced, or witness to be examined.

(2)Wherever additional evidence is allowed to be produced by an

Appellate Court, the Court shall record the reason for its
admission.

- Additional evidence which can only be taken at the

instance of the app. Court
- The general rule is that no add evidence when a case goes
in for appeal

RULE 28 - Mode of Wherever additional evidence is allowed to be produced, the

taking additional Appellate Court may either take such evidence or direct the Court
evidence from whose decree the appeal is preferred, or any other
subordinate Court, to take such evidence and to send it when
taken to the Appellate Court.
RULE 33 - Power of The Appellate Court shall have power to pass any decree and
Court of Appeal make any order which ought to have been passed or made and to
pass or make such further or other decree or order as the case may
require, and this power may be exercised by the Court
notwithstandng that the appeal is as to part only of the decree and
 may be exercised in favour of all or any of the respondents or
parties, although such respondents or parties may not have filed
any appeal or objection and may, where there have been decrees
in cross-suits or where two or more decrees are passed in one suit,
be exercised in respect of all or any of the decrees, although an
appeal may not have been filed against such decrees.

Provided that the Appellate Court shall not make any order under
section 35A, in pursuance of any objection on which the Court
from whose decree the appeal is preferred has omitted or refused
to made such order.

Illustration -

A claims a sum of money as due to him from X or Y, and in a suit

against both obtains a decree against X. X, appeals, and A and Y
are respondents. The Appellate Court decides in favour of X. If
has power to pass a decree against Y.

- AC can extend its judgment not just to the appellant but

also to the parties in the original suit but did not appeal.

Decree in appeal contents:

1. No. of the appeal

2. Names and descriptions of parties
3. Relief granted or any other adjudication made
4. Costs incurred in appeal (by whom and out of what
property and in what proportion)
5. The decree has to be signed by judges who concur with
the judgment.

A certified copy needs to be sent to the original court so that it can

also complete its records.

a. Rule 3,5,6,23,23A,24,25,27,33
 4. Appeals to SC

SECTION 109 - Subject to the provisions in Chapter IV of Part V of the

When appeals lie to Constitution and such rules as may, from time to time, be made by
the Supreme Court the Supreme Court regarding appeals from the Courts of India,
and to the provisions hereinafter contained, an appeal shall lie to
the Supreme Court from any judgment, decree or final order in a
civil proceeding of a High Court, if the High Court certifies—

(i) that the case involves a substantial question of law of general

importance; and

(ii) that in the opinion of the High Court the said question needs
to be decided by the Supreme Court.

SECTION 112 - (1) Nothing contained in this Code shall be deemed—

Savings
(a) to affect the powers of the Supreme Court under article 136 or
any other provision of the Constitution, or

(b) to interfere with any rules made by the Supreme Court, and for
the time being in force, for the presentation of appeals to that
Court, or their conduct before that Court.

(2) Nothing herein contained applies to any matter of criminal or

admiralty or vice-admiralty jurisdiction or to appeals from orders
and decrees of Prize Courts.

ORDER 45: APPEALS TO THE SUPREME COURT

- You don’t go to the SC directly, you go to the HC with a petition that you wish to
move to the SC against the HC’s decision.
- Then you get the certificate of fitness. Only when a substantial question of law which
is disputed. All HCs are not on the same page therefore, SC needs to decide.
- HC will decide whether there is a substantial question of law.

For SC, what governs procedure:

1. Constitution
2. SC Rules
 3. Remaining portion – cpc

- The SC is not a civil court, therefore, all provisions that apply to civil courts don’t
apply to SC procedure
- Appeal to the SC is not a matter of right – the HC decides whether dispute or not –
HC needs to be convinced of its own fault
- HC will grant certificate only if while deciding, there was no guiding principle estb.
By the SC and it applied own logic and reason.

RULE 1 - "Decree" In this Order, unless there is something repugnant in the subject or
defined context, the expression "decree" shall include a final order.

Appeal is preferred against a decree or a final order. As orders of

HC can also be appealed against therefore, it is also within the
ambit of a decree.
RULE 2 - Application (1) Whoever desires to appeal the Supreme Court shall apply by
to Court whose petition to the Court whose decree is complained of.
complained of
(2) Every petition under sub-rule (1) shall be heard as
expeditiously as possible and endeavour shall be made to
conclude the disposal of the petition within sixty days from the
date on which the petition is presented to the Court under sub-rule
(1).

You file a petition – the appeal to SC starts with a petition to the

HC.

- Presentation of petition to HC whose decree is complained

of
- This petition has to be disposed of by the HC within 60
days i.e. whether certificate is to be granted has to be
decided within 60 days.

RULE 3 - Certificate (1) Every petition shall state the grounds of appeal and pray for a
as to value or fitness certificate—

(i) that the case involves a substantial question of law of general

importance, and
(ii) that in the opinion of the Court the said question needs to be
decided by the Supreme Court.]

(2) Upon receipt of such petition, the Court shall direct notice to
be served on the opposite party to show cause why the said
certificate should not be granted.

Contents of the petition:

- Grounds – i.e. there is substantial question of law involved
- Prayer for certificate (request for grant of certificate)
RULE 6 - Effect of Where such certificate is refused, the petition shall be dismissed.
refusal of certificate

- Petition cannot be filed again

- We can ask the HC to review the petition – only option
(order of dismissal)

RULE 7 - Security (1) Where the certificate is granted, the applicant shall, within
and deposit required ninety days or such further period, not exceeding sixty days, as
on grant of certificate the Court may upon cause shown allow; from the date of the
decree complained of, or within six weeks from the date of the
grant of the certificate whichever is the later date,—

(a) furnish security in cash or in Government securities for the

costs of the respondent, and

(b) deposit the amount required to defray the expense of

translating, transcribing indexing printing, and transmitting to the
Supreme Court a correct copy of the whole record of the suit,
except—

(1) formal documents directed to be excluded by any Rule of the

Supreme Court in force for the time being; (2) papers which the
parties agree to exclude;

(3) accounts, or portions of accounts, which the officer

empowered by the Court for that purpose considers unnecessary,
and which the parties have not specifically asked to be included;
and

(4) such other documents as the High Court may direct to be

excluded:

Provided that the Court at the time of granting the certificate may,
after hearing any opposite party who appears, order on the ground
of special hardship that some other form of security may be
furnished:

Provided further, that no adjournment shall be granted to an

opposite party to contest the nature of such security.
RULE 8 - Admission Where such security has been furnished and deposit made to the
of appeal and satisfaction of the Court, the Court shall—
procedure thereon
(a) declare the appeal admitted,
(b) give notice thereof to the respondent,

(c) transmit to the Supreme Court under the seal of the Court a
correct copy of the said record, except as aforesaid, and

(d) give to either party one or more authenticated copies of any of

the papers in the suit on his applying therefore and paying the
 reasonable expenses incurred in preparing them.
RULE 10 - Power to Where at any time after the admission of an appeal but before the
order further security transmission of the copy of the record, except as aforesaid, to the
or payment Supreme Court such security appears inadequate,

or further payment is required for the purpose of translating,

transcribing, printing, indexing or transmitting the copy of the
record, except as aforesaid,

the Court may order the appellant to furnish, within a time to be

fixed by the Court, other and sufficient security, or to make,
within except as aforesaid.
RULE 11 - Effect of Where the appellant fails to comply with such order, the
failure to comply with proceedings shall be stayed,
order
and the appeal shall not proceed without an order in this behalf of
the Supreme Court and in the meantime execution of the decree
appealed from shall not be stayed.

Exception – get an order from the SC to continue proceedings

without security.

RULE 12 - Refund of When the copy of the record, except as aforesaid, has been
balance deposit transmitted to the Supreme Court, the appellant may obtain a
refund of the balance (if any) of the amount which he had
deposited under rule 7.
RULE 13 - Powers of (1) Notwithstanding the grant of a certificate for the admission of
Court pending appeal any appeal, the decree appealed from shall be unconditionally
executed, unless the Court otherwise directs.

(2) The Court may, if it thinks fit, on special cause shown by any
party interested in the suit, or otherwise appearing to the court,—

(a) impound any movable property in dispute or any part thereof,

or

(b) allow the decree appealed from to be executed, taking such

security from the respondent as the Court thinks fit for the due
performance of any order which the Supreme Court may make on
the appeal, or

(c) stay the execution of the decree appealed from, taking such
security from the appellant as the Court thinks fit for the due
performance of the decree appealed from, or of any decree or
order which the Supreme Court may make on the appeal, or

(d) place any party seeking the assistance of the Court under such
conditions or give such other direction respecting the subject-
 matter of the appeal, as it thinks fit, by the appointment of a
receiver or otherwise.

- Similar to rule 6, order 51

- A receiver is a guardian/ caretaker of property appointed
by court. He has various immunities. But he can also be
made liable under some circumstances.
- Main purpose is to maintain a record of the income of the
property.
- What SC will do is nowhere is mentioned – rule 15 talks
directly comes to enforcing orders.

But SC will have all powers and duties of any appellate court such
as:

- Calling additional evidence

- First of all, they will look whether there is any substantive
question of law
- SC won’t look into facts

If a judgment is already passed, then the appeal is dismissed as

the court is not looking into subs ql.

This order will be treated as a decree for execution. Parties have

no option other than review or revision but the SC can pass a
decree when it looks into and determines the substantive question
of law.
RULE 15 - Procedure (1) Whoever desires to obtain execution of any decree or order of
to enforce orders of the Supreme Court shall apply by petition, accompanied by a
the Supreme Court certified copy of the decree passed or order made in appeal and
sought to be executed, to the Court from which the appeal to the
Supreme Courts, was preferred.

(2) Such Court shall transmit the decree or order of the Supreme
Court to the Court which passed the first decree appealed from, or
to such other Court as the Supreme Court by such decree or order
may direct and shall (upon the application of either party) give
such directions as may be required for the execution of the same;
and the Court to which the said decree or order is so transmitted
shall execute it accordingly, in the manner and according to the
provisions applicable to the execution of its original decrees.

(4) Unless the Supreme Court otherwise directs, no decree or

order of that Court shall be inoperative on the ground that no
notice has been served on or given to the legal representative of
any deceased opposite party or deceased respondent in a case,
where such opposite party or respondent did not appear either at
the hearing in the Court whose decree was complained of or at
any proceedings subsequent to the decree of that Court, but such
order shall have the same force and effect as if it had been made
before the death took place.
Module 1- Introduction..............................................................................................................5
1. Cases relating to object of the Courts and what is the Court’s stance on the same:.......9
I. Ganesh Trading Co. v Mojiram (AIR 1978 SC 484)...................................................9
II. Syed Muhammad Bakar v Abdul Habib Hasan (AIR 1998 SC 1624)........................9
2. Interpretation of CPC:.....................................................................................................9
I. State of Punjab v Shyamlal Murari (AIR 1976 SC 1177)...........................................9
3. Basic Terms and Essentials of CPC..............................................................................10
I. Madan Naik v Hansubala Devi (AIR 1983 SC 676).................................................10
II. Hansraj Gupta v Official Liquidators of Dehradun Musoorie Electric Tramway Co.
Ltd. 11
III. Diwan Brothers v Central Bank of India (AIR 1976 SC 1503).................................11
IV. Dattatraya v Radhabai................................................................................................11
V. Jethanand & Sons v State of UP (AIR 1961 SC 794)................................................11
VI. Shankar v Chandrakand (AIR 1995 SC 1211)..........................................................12
VII. Moolchand v Director, Consolidation (AIR 1995 SC 2493)...............................12
VIII. CIT v Bombay Port Trust Corp. (Privy Council judgement)- 1939....................12
IX. East and Dwelling Co. Ltd. v Finsbury Bureau Council (English Judgement)- 19...13
X. Cambay Electric Supply Industrial Co. v CIT (AIR 1978 SC 1099)........................13
I. Balraj Taneja v Sunil Madan (AIR 1999 SC 3381)...................................................13
I. Lalji Raja & sons v Firm Hansraj Nathuram AIR 1971 SC 974...............................14
I. Mahant Narain v Tirumali Tirupathi Devasthana......................................................15
II. Dakshina v Saroda.....................................................................................................15
Module 2: Jurisdiction of civil courts......................................................................................17
I. Abdul Waheed Khan v Bavani (AIR 1966 SC 1718)................................................18
II. Gangabai v Vijay Kumar (AIR 1974 SC 1126).........................................................18
III. Union of India v Tarachand Gupta and Ors. (AIR 1971 SC 1558)...........................18
IV. Official Trustee v Sachindra Nath (AIR 1969 SC 823).............................................18
I. Anisminic Ltd. v Foreign Compensation Commission (1969) 1 All E.R. 208 / 1969 1
AC 147.............................................................................................................................18
II. Ujjambai v State of U.P. (AIR 1962 SC 1621)..........................................................19
III. Dhirendranath v Sudhir Chauhan (AIR 1964 SC 1300)............................................19
IV. A.R. Antulai v R.S. Nayak (AIR 1988 SC 1531)......................................................19
V. ABC Laminad Pvt Ltd. A.P. Agencies (AIR 1989 SC 1239)....................................19
VI. Kiran Singh v Chaman Paswan (AIR 1954 SC 340).................................................19
VII. Ittyavira Mathai v Varkey (AIR 1964 SC 907)....................................................20
VIII. Abdullah bin Ali v Galappa (AIR 1985 SC 577).................................................21
IX. Begum Sahiba v Nawab Muhammad Mansur (AIR 2007 SC 1636).........................21
X. Bank of Baroda v Motibhai (AIR 1985 SC 545)- Imp..............................................21
XI. Ananti v chhannu 1930 allahbad HC.........................................................................21
XII. Topan das v gorakhram AIR 1964 SC 1348 (case (a) was referred in this case) 21
XIII. Bhatia Cooperative Housing Society ltd v D.C. Patel AIR 1953 SC 16..............22
XIV. Most rev. P.M.A Metropolitan v Moran Marthoma AIR 1995 SC 2001.............23
XV. CIT v Parmeshwari Devi AIR 1998 SC 1276......................................................24
XVI. Abdul wahid Khan v Bhawani.............................................................................24
XVII. Bharat kala bhandaar pvt ltd v Municipal Community Dhamman Gaon. AIR
1966 SC 249.....................................................................................................................24
XVIII. State of Tamil Nadu v Ram Linga Samigal AIR 1986 SC 794.......................24
XIX. LIC v India Automobiles & Co. AIR 1991 SC 884.............................................24
XX. premier automobiles v Kamlekar Shanta AIR 1975 SC 2238.............................24
 XXI. Secretary of State v Sask and Co. AIR 1940 SC/PC 105 [read book for
foundation on jurisdiction of court to oust].....................................................................25
XXII. Firn State Radha Krishan v Administrator Municipal Community Ludhiana
AIR 1963 SC 1547...........................................................................................................25
XXIII. Dhulabhai v State of M.P.................................................................................25
1. Res Judicata...................................................................................................................26
I. Satyadhan Ghoshal v Deorjin Devi (AIR 1960 SC 941)...........................................27
II. Duchess of Kingston case..........................................................................................27
III. Dariyaro v State of UP case.......................................................................................27
I. Batul Begum v Hem Chandar 1960 All HC..............................................................28
I. Sheo Dan Singh v Dariyao Kunwar AIR 1966 SC 1332...........................................30
II. Mathura Prasad v Dosibai N B Jeejee Bhoi AIR 1971 SC 2355...............................30
III. Pandu Rang Ramchandra v Shanti Bai Ramchandra AIR 1989 SC 2240.................30
IV. Workman v Board of Trustees Kochin Court Trust AIR 1978 SC 1283...................30
V. State of UP v Nawab Hussain AIR 1977 SC 1680....................................................31
VI. Forward Constructive Co. v Prabhat Mangal AIR 1986 SC 391..............................31
VII. Iftikhar Ahmed v Sayeed Meherban Ali..............................................................31
VIII. Nottingham v Earl Shrewsbury case....................................................................31
IX. Syeed Mehmoob Sahab v. Sayeed Ismail AIR 1995 SC 1205..................................31
X. Iftikhar Ahmed v Sayeed Meherban Ali....................................................................32
XI. Dariyao v state of UP AIR 1961 SC 1457.................................................................32
I. Sarvuja transports services v STAT AIR 1986 SC 88...............................................32
I. Pandu Rang Ramchandra v Shanti Bai Ramchandra AIR 1989 SC 2240.................33
2. FOREIGN JUDGMENTS.............................................................................................33
I. R. Viswanathan v Rukn ul Mulkh Syed Abdul.........................................................33
II. Gurdyal Singh v Raja of Faridkot (1895 PC)............................................................33
I. International Woolen Mills v Standard Wool UK Ltd (AIR 2001 SC 2134)............34
II. Narasimha Rao v Venkatlakshmi (1991) 3 SCC 451................................................34
I. Sankaran Govindan v Lakshmibharat (AIR 1974 SC 1764).....................................34
I. A.V. Papayya Shastri v Govt. of A.P. (AIR 2007 SC 1546).....................................35
I. Satya v Teja Singh (AIR 1975 SC 105).....................................................................35
I. Batad and Co. v East India Trading Co. (AIR 1964 SC 538)....................................35
II. R. Viswanathan v Rukn ul Mulk Syed Abdul (AIR 1963 SC 1) (imp).....................35
I. Satya v Teja Singh (AIR 1975 SC 105) (imp)...........................................................35
I. Narsimha Rao v Venkatlakshmi................................................................................36
3. Place of Suing in India..................................................................................................36
4. Institution of Suits.........................................................................................................36
II. S.K. Saldi v U.P. State Sugar Corporation................................................................37
III. B. Prabhakar Rao v State of A.P. (1985 Supp. SCC 432).........................................37
IV. Naba Kumar v Radha Shyam (PC 229).....................................................................37
V. Anil Kumar v Shivnath 1995 (3) SCC 147................................................................37
VI. Raziya Begum v Sahibzihadi Anwar Begum AIR 1999 SC 976...............................38
5. Frame of Suits...............................................................................................................38
VII. Mohammad Khalil v Mehboob Ali......................................................................39
Module 3: Pleadings.................................................................................................................41
I. Sayid Dastagir v T.R. Gopalkrishna Setty.................................................................41
II. Ramprasad v State of M.P.........................................................................................41
III. Calcutta Discount Company Ltd. V ITO...................................................................41
IV. Udhav Singh v Madhav Rao Sindhia (AIR 1976 SC 744)........................................41
V. Virendranath v Satpal Singh......................................................................................41
 VI. Williams v Wilcox and Phillips v Phillips.................................................................42
VII. Virendranath v Satpal Singh................................................................................42
VIII. Virendra Kashinath v Vinayak Joshi...................................................................42
I. Suraj Prakash v Raj Rani AIR 1981 SC 485.............................................................42
II. Cropper v Smith (1884) 29 KB 700..........................................................................42
I. Jay Jay Rammanohar v National Building Materials Suppliers AIR 1969 SC 1267 43
I. A.K. Gupta and Sons Ltd. v Damodar Valley Corporation AIR 1967 S 96..............43
II. Gangabai v Vijay Kumar...........................................................................................43
I. Steward v North Metropolitan Tramway Companies................................................43
II. A.K Gupta and Sons Ltd. v Damodar Valley Corporation........................................43
I. Weldon v Neal, 1887.................................................................................................44
II. Pirgonda Patil v Kalgonda Patil AIR 1967 SC 363...................................................44
III. Charan Das v Amir Khan AIR 1921 PC 50...............................................................44
I. Patasi Bai v Ratanlal (1990) 2 SCC 42......................................................................44
II. Usha Devi v Rizwan Ahmed (2008) 3 SCC 717.......................................................44
Module 3: Plaint and Written Statement..................................................................................45
I. Union of India v Surjeet Singh AIR 1979 SC 1701..................................................46
II. Udhav Singh v Madhav Rao Sindia AIR 1917 SC....................................................46
I. Badar and Co. v Indian Trading Co...........................................................................46
I. Modula India v Kamakshia Singh Deo AIR 1989 SC 162........................................47
II. Balraj Taneja v Sunil Madan (Imp) AIR 1999 SC 3381...........................................47
III. Union of India v Karam Chand Thapar & Bros. Ltd (2004) 3 SCC 504...................48
6. Counter Claim...............................................................................................................48
I. Laxmi Das v Nanabhai AIR 1964 SC 11...................................................................48
II. Ramesh Chand v Anil Panjwani AIR 2003 SC 5208................................................48
III. Rohit Singh v State of Bihar......................................................................................49
7............................................................................................................................................49
IV. Gangadevi v Krishnaprasad.......................................................................................50
V. Raj Narain v Indira Gandhi, AIR 1972 SC 1302.......................................................50
8. Ex Parte Orders and Decrees........................................................................................51
VI. Sangram Singh v Election Tribunal AIR 1955 SC 425.............................................51
VII. Calcutta Port Trust v Shalimar Tar Product Ltd. AIR 1981 SC 684...................51
VIII. Raja Devi Baksh v Habib Shah PC 1913.............................................................51
IX. Lachi Tewari v Director of Land Records AIR 1984 SC 41.....................................52
X. Chota Lal v Ambalal Hargovan 1925 Bombay HC- IMP.........................................52
XI. Currim Bhai v N.H. Moos 1929 Bombay HC...........................................................52
XII. G.P. Srivastav v R.K. Raizada, (2000) 3 SCC 54................................................52
XIII. UCO Bank v Iyengar Consultancy Services Pvt Ltd., (1994) Supp 2 SCC 399..53
XIV. Siraj Ahmed v Premnath, AIR 1993 SC 2525.....................................................53
XV. Hiralal v Badbulal, AIR 1953 SC 225.................................................................53
XVI. Kundibai v Vishinjit Hotchand, 1977 judgment of Sind HC [AIR 1947 Sindh
105] 54
XVII. Hiralal v Kalyan Mal, AIR 1988 SC 618.........................................................54
Interim Orders..........................................................................................................................55
1. Commissioner...............................................................................................................55
I. Tushar Kanti v Savitri Devi, AIR 1996 SC 2752......................................................56
2. Temporary Injunction...................................................................................................56
 MODULE 1- INTRODUCTION
2. What is the difference b/w contract of service and contract for service
3. Substantive law prescribes/creates /confers basic rights, obligations, duties or legal
status to a natural person or to an artificial legal entity.
- a right always has a corresponding duty.
 Procedural law- manner/machinery/prescription for getting enforced those basic
substantive rights as prescribed in substantive law through a court of law as est by due
process of law
- thus procedural law substantiates substantive law. It ensures one gets access to those
substantial rights. You get this access through a court of law est by due process.
 Difference b/w contract of service and contract for service?
 Why is CPC not just a procedural law?
- CPC comprises 151 sections and 51 Orders and Rules (sections discuss certain
substantive aspects and these are further substantiated by the order. How is implemented
when taken to court)
- Doctrine of res judicata and sub judice provide substantive rights. RJ (when matter is
heard cannot brought in again by the same parties)- right to seek relief wrt continuous
harassment wrt a legal case, this doctrine is mentioned in CPC alone. SJ- when matter
being heard in a certain court, another court will not proceed w that matter, mentioned in
CPC.
- CPC mix of substantive and procedural law w greater character of procedural law. Not
only procedure discussed but also rights discussed in the courts through that procedure.
- Inherent power of the courts- nothing in CPC will prevent civil courts from doing
complete justice (when law is silent upon a matter). This is a substantive right (a
substantive pow given to the courts).
- When a law has both substantive and procedural aspects, need to demarcate in some way
thus demarcated as procedural. CPC is both with more aspects of procedural law
 After the Company Rule, there came the Crown rule. They initiated a forum to discuss
issues to avoid resulting in mutiny.
- they said no matter what system was being inherited in the judicial system, it had to be
uniform so that the Crown could rule
- First attempt at drafting a CPC- 1859
- The rules were flawed in nature- didn’t cover presidency and small causes court and left
certain matters to the discretion rulers of the princely states (certain nature of autonomy).
They didn’t want to directly indulge in the negos going on but wanted to have a certain
level of control
 They came up w the 2nd CPC in 1877. This wasn’t an entirely new draft but built heavily
upon the initial one. They cleared some mistakes made. This one failed even more
miserably as it was built on the foundations of the initial code, which already had certain
flaws so these flaws were inherited.
 They came out with a third draft in 1882 and appl by British in India uniformly and this
time exemptions were limited to the narrowest extent possible it also included major
civil codes and tried to include several codes already in operation. They tried to ensure a
fair deal should be afforded to the people.
- towards the end of the 18th century, the Congress came into being for the Indian to raise
their issues to deliberate. However, what the British wanted that prevailed always. But it
was still a platform for judicial discussion and deliberation.
- This CPC had rules and orders but these weren’t clarified properly. They were 1) drafted
in a very complex language and 2) such language that couldn’t be understand by the
 common masses and 3) they still weren’t acknowledging the basic customs and systems
of the people .
- Thus people would not attend courts as they felt this was contrary to their customs and
was alien. It did not recognise local customs. Thus this failed too.
- Enforced for a certain period and so understood the defects
 There was a changing pol scenario in the beginning of the 20 th century- partition of
Bengal, moderates and extremists, Surat split, etc.
- the administrators were under tremendous pressure as they realised it would be difficult to
maintain rule if they kept on ruling like this so they started giving certain concessions in
the form of administrative and judicial reforms (blessing in disguise- railway, posts)
- on the judicial side they realised they had to be liberal and transparent and for the first
time they realised they had to adopt the principles of natural justice
- they also realised they had to understand the local system
- they had to break the image that the British didn’t favour themselves
- so they came up with a less complex and less biased Code, the present CPC- 1908.
 They needed a more amicable method of rule. They couldn’t rule with an iron fist. If not
in political arena, in courts at least.
 Objects:
1. the litigant should get a fair trial in accordance w the principles of natural justice
2. expedited trials and early disposal of litigation in courts
- the cause of frustration among the people is not the outcome but the mechanism. If the
process if lengthy, frustrating then it annoys the masses and the confidence in the
judiciary decreases. If the judgment is given after 17 years it will lose its relevance. Thus
they applied the doctrine of justice delayed in justice denies
3. They simplified the language with acceptance of local customs and rituals
(these three are the broader aspects of the CPC, every order is aimed at fulfilling these three
objects)
 After India attained freedoms and brought about certain changes because princely states
done away with and Indians would now rule themselves
 Amendments:
 1. 1951-52 – Name changing system- certain reforms brought only to change name. 2)
Greater concept of autonomy
2. 1976- CPC Amendment Act, 1976
a) doctrine of res judicata was made more effective and simplified. Initially the
doctrine wasn’t as we see it now through this amendment it was changed.
People didn’t understand the concept of res judicata and the courts felt the
same matter was coming again and again and they decided they need to have a
finality to an order. Initially the doctrine was not that heavy and the courts
weren’t taking it into account
- the doctrine of res judicata in the present form was evolved in 1976
b) the power to transfer cases from one HC to another was being given to SC
- the cause of action or the actual dispute arisen in some other state or party residing in
another State and by mutual acceptance by both parties they can ask SC to transfer it to
another court.
c) Till 1976 there was no timeline to decide cases. Once matter brought to court,
summons issued,, the other party will file statement, if no then case wont
progress, court will wait for certain period of time and still if the other party
ignores will the court make it ex-parte (no change in normal proceeding, apart
from that the other lawyer isn’t there so cross-exam will be hard, judge will
 act as the lawyer, he is duty bound to check all facts from the other part, check
what is being said by the council and only then come to a conclusion)
- they changed it saying that this cannot be done at the free will of the parties and the court.
- The time for submitting written statements (1-3 months) after issuance of summons, filing
of affidavits, submitting the names of witnesses and list of evidences, etc., was prescribed
by the CPC through the 1976 amendment act. However, they were not strictly
implemented. If these weren’t prescribed then the judges had no basis of rejecting an
application as the lawyer can claim that the judge is biased towards one of the parties.
Lawyers could use any excuse to not file on time.
- Sometimes the subject matter may not be imp enough to be heard for a lengthy time and
sometimes the parties might agree to hear the case in an expedited manner so in this case
they introduced summary trials. The scope of summary trials was widened w scope of
newer subjects within its ambit.
d) S18 of the code said that if one has to file a suit against the govt is proper proc
is reqd, which is an approval, req of a notice. Reason- law made during British
time and they didn’t want to be sued easily.
- they changed it such that notice was still reqd but it was now only reqd to initiate action
not a protection
- the prov of notice under s18 (suits against the govt) was relaxed and simplified.
e) Freedom from attachment of salary was granted.
- Attachment- they attach the property saying that unless the get the actual amt
of loan or interest then only would they return the property. There used to be
attachment of salary. A civil litigation might go on for compensation to be
made at the end of the matter. If you fail in litigation and you fail to pay it then
how would you. The other party might not have means to pay the money at
that tine so the court attaches the property so that he cannot lose the money
and not pay as the purpose of justice wouldn’t be served otherwise.
- const says that r to life and livelihood includes the same w human dignity.
They thus said attachment of salary should be removed as this is taking away
his means of livelihood. It came up that what if there is not money to pay the
other party at the end of the loan so they said you can go up to 50% maximum,
just like a loan. Earlier any amt could be attached but attachment of entire
salary is depriving him of r to life and human dignity. Now attachment of
salary can only be done in the rarest of cases where there is absolutely no
other option to pay back
 The backlog of cases became a serious issue after this and they felt that this Code made
it a very long process. They said it was 5 years for a normal litigation process, resulting
in backlog, so they felt they must address
 Justice Malimanth Commission was established, in his report he pointed out that there is
a huge drawback in the form of adherence to the timeframe in CPC.
 Salem Advocates Bar Asscn Case 1 ( ) and 2 ()
 The above in association with the Commission brought a change in the time for deciding
cases with time limits for every stage of civil litigation. Prescribing time limit for every
phase of litigation.
4. 1999 and 2002-
 came after the two Salem judgments . These introduced amendments to avoid the backlog
of cases. The Curt called out lawyers as they contributed to delaying the cases
a) Issue of adjournment had become v imp as it was granted to anyone and
everyone, even if no valid reason for the same.
- if adjournment is to be granted, there must be some uniform parameters for granting
them. In a civil suit, more than 3 adjournments should not be granted. Discretion of court
to interpret facts and circumstances and thus may deviate from this route to a certain
extent, thus must be done w proper reasoning and w recording of grievances for the same.
- Must be clear what the judge has done in this context and how he is approaching the
matter
- Reality: there is no civil suit foll. The rule of 3 adjournments. Only thing after this rule is
that seeking adjournment on foolish grounds has stopped (improvement of grounds of
giving adjournment). They can still grant adjournments as discretion has been giving to
them to interpret the facts in isolation to any other matter.
- Water tight provisions cannot be given to civil law. The court is entertaining the matter
and any future circumstance may not be foreseen by the courts and thus a blanket no
cannot be given. Ine very situation the court has to face a new issue.
- The deviation to be recorded and to be in consonance w normal parameters used in the
appl in previous cases. Eg- shouldn’t be lenient enough to grant on contributory
negligence of both parties.
b) Time limit prescribes for filing of written statements and objections and was
asked to be strictly adhered to or abided by the court except circumstances
accepted in the court and the reasons for the same have to be recorded.
- time limit for written statements: 30 days within date of receipt of summons. Thus it helps
the court in understanding within 30 days whether there is a matter or not. If the party
doesn’t contradict any of the facts in the statement then the court will not have to go into
details about that matter.
- If incident w blood relation in the fam (parent, child, etc., not distant relation) then can be
used to ask the court for an extension
- Thus now written statements are coming to the court at the earliest possible instance.
c) Out of court settlement provision has been simplified and relaxed
- out of court settlement means the court does have a role but they don’t follow the
procedures and don’t hear the merits directly
- the parties may arrive at a compromise and agree on certain things and then produce it to
the court. The court will check the elements in that- not go against the est principles of
law, make sure no party Is forced into giving consent (principles of fairness- might give
consent but do not understand the consequence of it), in accordance w major procedures
and law of the land, etc (any other defect). They will then issue that as a judgment if all
flaws corrected etc. Only thing being saved is the actual interpretation n court isn’t done.
This is done as the parties want early disposal of their cases.
- OoCS can be appealed theoretically however if that will be accepted is the question as it
has been arrived at by mutual consent. Judicial estoppel as they agreed to it. Also, since
based on mtual agreement then grounds of appeal reduced.
- Statutory rights are not absolute. Further, it is given birth only by a statute and taken away
by that statute alone. If statute doesn’t grant specific right to appeal then cannot claim this
right . FRs can be amended but cannot be taken away completely. No of appeals isn’t a
matter for discussion in courts, it is according to the law. The concept of third appeal was
taken away (appeal at the same court, eg- appeal goes to a division bench of a certain no.,
etc)
  CASES RELATING TO OBJECT OF THE COURTS AND WHAT IS THE COURT’S STANCE ON
THE SAME:

Ganesh Trading Co. v Mojiram (AIR 1978 SC 484)

SC stated that a procedural law is always in aid of justice and act as subservient to the
substantive law. Nothing can be given by a procedural law what is not sought to be given by
a substantive law and nothing can be taken away by the procedural law what is given by the
substantive law. (they are saying that the act is always serving the cause of justc. When there
is a contradiction, substantive law prevails)

Syed Muhammad Bakar v Abdul Habib Hasan (AIR 1998 SC 1624)

Same as above case
 INTERPRETATION OF CPC:

 State of Punjab v Shyamlal Murari (AIR 1976 SC 1177)

The SC stated that procedural law isn’t supposed to be direct but as a supplement to the cause
of substantive law, in order to further aid substantiate the aid of justice. Where the non-
compliance though procedural in nature , thwart the concept of fair hearing or prejudice the
doing of justice to the party, the rule becomes mandatory. But grammar apart, if the breach
can be corrected w/o injury to a just disposal of the case, we should not enthrone a regulatory
requirement into a dominant desideratum.
(the Court says that though the previous judgment- proc law subservient to subs law but when
non-compliance the proc law compromises the aspect of fair hearing, the rules of proc law
becomes mandatory. If law suggests in this context right to sue for remedy and filed plaint in
court but proc says that interim measures wont be provided and call opp party for issuance of
summons and here issuance becomes a mandatory rule, if summons not issued then fair
hearing will not be done as the other party wont know a case has been issued against him. For
fair hearing and fair trial, you have to ensure it takes place, even if it takes time. Thus through
this judgment the court made procedure of several laws, including CPC, mandatory. Can
understand why civil litigation takes time)

BASIC TERMS AND ESSENTIALS OF CPC

1. Decree
 It will be a piece of adjudication, which will be formal in nature (in writing and declared
in open court and coming w the seal and authority of the court. Not an oral or speaking
order of the Court). It will give finality to all or some rights. [all these essentials give the
defn of a decree].
- arbitration is called an award unless executed by a civil code. Only a civil court or any
forum which is by law recognised at par w civil court and its power ins enforceable wrt a
civil court
- If it only gives finality to one right it still is but might be a preliminary decree. All types,
including preliminary and final decree are applicable.
 You either execute the decree or you challenge it. Thus for convenience of the parties it
will include all the rights as otherwise the parties wouldn’t be able to challenge.
 Judgement will hold the substantive value, decree: application of the law.
 If something is not determined w finality, it will be anything but a decree. Necessarily
have to get finality on all the issues or any one of them.
 An order of the court declaring no case made out from a plaint it means the court has read
the plaint, applied the legal situation and enforcing legal right and has decided cannot
continue the hearing and rejects it and this becomes a decree. By saying that there is some
defect due to which it cannot be introduced then this isn’t a defect, it can be brought back
after rectifying the defect. In the first instance, there is adjudication that there is no merit.
In second instance, not gone into substance of the law/issue.
 S2(2)- decree
- this section suggests that decree will be a formal expression of an adjudication as regards
to the court expressing it, conclusively determines the rights of the parties with regard to
all or any of the matters in controversy which may be either preliminary or final. It shall
be deemed to include the rejection of plaint but shall not include 1) any adjudication from
which an appeal lies as an appeal from any order 2) an order of dismissal of suit for
default.
 An order is something the Court says with respect to names of parties, etc (other
procedural issues) but no actual rights of the parties are determined. There are two
types of orders- appealable and non-appealable. Only test of determination of decree
is all the features in s2(2) being fulfilled verbatim.
 Imp. Elements of decree:
1. Adjudication of a civil court

e) Madan Naik v Hansubala Devi (AIR 1983 SC 676)

For a decision of a court to be counted as a decree, there must be a judicial determination of
the matter in the dispute. If the determination isn’t judicial in nature or the court has not
applied its judicial mind or prowess, it may not be referred as a decree.

2. Adjudication must take place or must have been done in a civil suit.
- CPC remains silent on it

Hansraj Gupta v Official Liquidators of Dehradun Musoorie Electric Tramway Co.

Ltd.
Part of the discussion was meaning of suit as the law didn’t define suit. The matter was
pending before Privy Council and they decided that : suit ordinarily means a civil proceeding
instituted by presentation of plaint. (thus if starting point isn’t presentation of a plaint then
that will no be called a suit and the judicial adjudication will not be termed as a decree)
The above was concurred by the SC in:

Diwan Brothers v Central Bank of India (AIR 1976 SC 1503)

How to come to the conclusion whether suit or not. The SC stated that “for the purpose of
s2(2) of the court, a proceeding may result into a decree if it is prescribed or provided in a
suit. Thus, a decision of a tribunal may be referred as a decree in a proceeding referred as a
suit but may not be a decree for the purpose of s2(2) if it is not commencing by presentation
of a plaint.

3. Rights of the Parties

- Suit instituted for declaration of the substantive rights of the parties. But apart from this,
other rights like procedure is also involved (certain procedural rights decided in your
favour, eg: allowing a third party to be part of the suit). But decree only if substantive
right, for procedural right it is an order
- The word right included for the purpose of s2(2) aims to include only the substantive
rights of the parties and not merely procedural rights. Thus an order for dismissal of a suit
 for default of appearance or an order refusing the status of informa pauperis are not
referred to as decrees.

Dattatraya v Radhabai
Pronounced by Bombay HC. If you talk rights of parties you include substantive rights not
proc rights. The decision in respect to rejection of app due to applicant being informa
pauperis is an order not a decree.

4. Conclusive Determination

Jethanand & Sons v State of UP (AIR 1961 SC 794)

The court has given a decision in rest to conclusive determination. “The determination of the
rights in the court must be final and conclusive as regards to the court passing it. A
conclusive determination may only determine conclusively the rights of the parties involved
therein and may not be intended to dispose off the suit.”

 Decisions referred as decrees:

1. Dismissal or appeal of suit for want of evidence
2. Dismissal of appeal as time barred – condonation of delay
3. (copy notes from ex book)

 In the context of prelim decree for executing in favour of party, there are two ways.

Shankar v Chandrakand (AIR 1995 SC 1211)

GO THROUGH FACTS
A leading judgment. In the context of prelim decree becoming final, the court said there are 2
ways : A prelim decree is one which declares rights and liabilities of arties leaving the actual
result to be worked out in further proceedings which would be as a result of further inquiries
conducted pursuant to preliminary decree leading to the comprehensive determination of all
the rights in question. Such prelim decree can become final in two ways:
1. When the time for appeal has expired w/o any appeal being filed against the prelim
decree or the matter has been decided by the highest court. Now party doesn’t have a
statutory right to appeal.
2. When the time for appeal has expired w/o any appeal being filed against the prelim
decree and the same stands disposed completely off by the time the party realised he
should appeal.
- here the court suggests that even if prelim decree, has to final so parties can go for
execution of the same.

Moolchand v Director, Consolidation (AIR 1995 SC 2493)

The SC stated that where an adjudication decides the rights of the parties w regard to all or
any of the matter in controversy but doesn’t completely dispose off the suit, it is referred as
prelim decree. It is a stage in working out the rights of the parties which are to be finally
adjudicated through a final decree and till then the suit continues.

Execution of prelim decree is only when limitation period is over and the matter us decided
by the highest court.
If nothing is prescribed the CPC then the court can exercise its inherent powers for the cause
of justice.
The court would not want to have several decrees as opposed to one final decree as this
involve execution as well and the execution proceeding will take time, more effort, etc. The
court will go for prelim decree mainly in suits for partition and family rights as well as
dissolution of partnership as well as sale of mortgage property.

Deemed decree:
In the context of any order, anything left out of the coverage of the decree but if the court
deems fit that itxan be used to execute a decree it can use it as a deemed decree.
Eg- rejection of plaint
It is a term used to create a statutory fiction for the purpose of extending the meaning to aid
which otherwise expressly was not prescribed to it.

CIT v Bombay Port Trust Corp. (Privy Council judgement)- 1939

Deemed implies any statute in respect to a apreson or a thing as a particular status of a
particular person or thing associated with that person after due consideration. (court is oaying
attention to the status of the person and determines

East and Dwelling Co. Ltd. v Finsbury Bureau Council (English Judgement)- 19
The court is suggesting that the statute says you must imagine a certain state of affairs. It
doesn’t say that having done so you must cause or permit your imagination to boggle when it
comes to the inevitable corollaries of that state of affairs.

Cambay Electric Supply Industrial Co. v CIT (AIR 1978 SC 1099)

If you are giving certain status recognition or order recognising indirectly a conclusive right
of a party you hold it on the same footing as decree.

2. JUDGMENT
a) Concise statement of facts which is included in the judgment which is leading to points
of determination for giving the judgment. A decree has no concise statement of facts, it
will only give the operative aspect
b) Reasoning
- when appealing you appeal against the decree per se but you are actually appealing
against the reasoning of the decree which is the judgment
 Relevant prov- s2(9) [Judgment is the statement given by the judge of the grounds of
decree].
a. concise statement of facts
b. point of determination
c. decision on such points of det.
d. Reasons
 The above characteristics will not be applicable to Small Causes Court as they are not
bound to prescribe concise statement of facts and reasoning.

o Balraj Taneja v Sunil Madan (AIR 1999 SC 3381)

Dealt with judges not prescribing reasons for judgment:
- there would be no grounds of appeal as reasoning wasn’t there
- the reasoning of the decision descries the actual point which acts as the last hammer in
deciding the case
this contributed in deciding on the importance of reasoning in a judgment
The Supreme Court stated that a judge cannot merely say “suit decreed” or “suit dismissed”.
The whole process of reasoning is to apply the intelligible mind on part of the judge while
applying the law to the facts and merits of the case.

3. ORDER
Discussing the procedure of the court
Order means the formal expression of a decision of civil court which is not a decree, which is
founded on objective consideration and as such the judicial order containing the question at
issue for deliberation.

Similarities between order and decree

1.   Both relate to matter in controversy
2.   Both of them are adjudication of a civil court.
3.   Both of them are formal expression
 
 
ORDER DECREE
1.   Order does not provide conclusive Decree provides conclusive determination
determination to of any the right in of matters in question.
question.
2.   Mere application is sufficient to get an
Decree will only be passed in a civil suit
order, presentation of plaint is not which has commenced with presentation of
necessary. plaint
3.   No such requirement as to whether it has
Decree may be- preliminary, deemed, partly
to be preliminary or deemed. preliminary, partly deemed.
4.   There may be multiple orders. In a civil suit there will be one final decree
and more than one preliminary decree. 
5.   Orders may be appealable or may not be Decree is always appealable in nature.
appealable in nature.
 
Decree holder and judgment debtor.
  
Foreign Courts:
 Established by or carried on by the govt. of india.
 Legislature or/& parliament have to the power to establish a court in India or outside
India with the permission of that country.
 This is because the people are electing the members of the parliament and the people have
the power. Further, parliament allocates and distributed funds therefore the power to
establish a court is in the hands of the parliament.
 Foreign court means a court situated outside indiaand not established or continued by the
authority of the central govt. s2 (5)
 

o Lalji Raja & sons v Firm Hansraj Nathuram AIR 1971 SC 974
Thus the courts established in england, Burma, Pakistan , Afghanistan, Bangladesh and
Ceylon and privy council are not recognized as indian courts as they were part of undivided
or uniform india.

4. MESNE PROFITS
  Occupying property without the consent of the owner. The cost of enjoying (either
personal purposes or actual commercial profit) need to pay back to the owner. The
mesne profit is the amount paid back to the owner.
  The ordinary usage of the property despite special factor present that might result in
greater rents. 
 Calculation of mesne profits: the usage based on the ordinary usage or the usage
which a man can reasonable foresee. Standard rate of the property will act as a
parameter for identifying the mesne profits.
(copy from ex book
Interest case-

o Mahant Narain v Tirumali Tirupathi Devasthana

Interest is an integral part of mean profits, which has to be allowed in the computation of
mean profits itself. The rate of interest remains at the discretion of the court subject to the
limitation that the said rate shall not exceed 6% p.a. and the interest may be allowed till the
date of payment of mean profits.

Dakshina v Saroda
Old Privy Council judgment (1894). How to calculate mean profit? The mean profit normally
means net profit. Amt incurred in gaining that net profit can be deducted in order to compute
the net proft and that is payable to the court.
While awarding mean profits, the court may allow the deductions to be made from gross
profits of the defendants such as land revenue, cess, cost of cultivation, charges incurred and
ultimately the net profits will be awarded.

5. AFFIDAVIT
 An affidavit is a declaration of facts reduced to writing and affirm and sworn before an
officer having authority to administer oaths. It should be drawn up in the first person and
should contain his statements and not questions or inferences. [you only declare and write
affirmatory sentences. You don’t infer something or ask questions, etc.]
- oath commissioner: person entitled to administer oath (take stamp paper, sign, etc.) he
will write a certain no in his reg and it will say that so and so person has taken an affidavit
etc.
- It will always be in first person, never third person. You cannot swear in the name of
someone else. Swear for the existence of a certain fact or incident you would like to abide
by

6. APPEAL
 Judicial examination of the decision of an inferior court by a higher court.
 It is considered to be a remedy which is created by a statute and until a statute clearly
grants it, it cannot be claimed by the person.

7. CAUSE OF ACTION
 A bundle of essential facts reqd to be proven in any case if you want a favourable order
(get a decree from the court). These facts which suggest or contravene the law and you
have to prove such contravention, that fact becomes the cause of action.
- necessary for a plaintiff to prove before he can succeed in litigation. A plaint filed by the
plaintiff has to necessarily disclose cause of action otherwise there would be rejection of
plaint by the court which will be a decree.
- Thus cause of action is essential. Ultimately to be proven w/o any compromise

8. CAVEAT
 An application to the court tha please do not move an inch in the matter w/o hearing our
side first
 Caveat is an official request that a court shouldn’t take any particular action w/o issuing
notice to the party lodging such caveat and w/o affording an opportunity of hearing him.
 MODULE 2: JURISDICTION OF CIVIL COURTS

Ubi jus ibi remidium where there is a right there is a remedy

Civil law provides certain rights and prescribe certain aspects of procedure, they can’t work
in isolation in any forum. this is because, every time a right is given the authority is given that
he can contravene for the upholding of the right. It gives a forum to actually protect the rights
and the authority of the individual to move to a forum to secure the right.
Power to pass & prepare the law- legislature
Power to test the law- judiciary (interpret the law)
The power or authority to entertain the right and pass an order is given to a court or any other
forum.
Basic test of deciding a law is- when a right is made, the authority of the court to entertain the
rights and pass an order in order to secure the law is present or not.
If the court goes beyond its jurisdiction-Whether the court is empowered to hear the matter
i.e- if the legislature has given the power or not.
If the court does not have the jurisdiction or the power of the law but still continues with the
proceeding, the existence of any order passed will become null.
If the law or statue has specifically stated that a court shall not have jurisdiction over certain
matter, the court can’t interpret it in another manner.

S9- intends to give every civil the power to entertain all civil matter expect in cases where
there is implied power.
This is because separate tribunals have now been created which are governed by their own
laws. The court thus ceases to have jurisdiction, and the legislature has the power to make the
laws for the separate set of courts or tribunals.

Main reason for the establishment of the tribunals was to ensure fair and speedy trial and if
the matter is going to be passed on to the civil court, then it defeats the purpose therefore in
cases where the matter has to be passed on to the court, it passes to the high court.

Lack of jurisdiction—no jurisdiction from there day 1- nullity.

Irregular jurisdiction –
- jurisdiction was there but was exercised irregularly, or one went slightly beyond their
jurisdiction or decided a matter which went beyond its power or jurisdiction.
- when this happens, it is the duty of the parties to raise the point that the court is going
to go beyond its powers.
- If one does not raise an issue, the higher court will consider the decree to be valid as
the bona fide intention is missing.
- Moreover, if the party does not raise the point at the earliest possible instance and
raises it at a later stage deliberately thinking that the decree will become null, this
does not take place as nullity only takes place in lack of jurisdiction.

Imp. At the time of framing of issues or at the earliest possible instance.

This is because the party cant plead ignorance as the party chooses to remain silent the court
presumes that there is deliberate intention.
No clear-cut explanation of the term “earliest possible instance”, it varies from case to case.
Therefore, one can raise the point in any instance if the party is able to prove that this
instance is the earliest possible instance available.

Decree contains several aspects but which portion can be challenged in a court is decided by
the jurisdiction of the court.

Imp. Challenge on ordinary grounds exists in certain cases.

Types of jurisdiction
1. Territorial
2. Pecuniary
3. Subject matter

o Abdul Waheed Khan v Bavani (AIR 1966 SC 1718)

The Court stated that a litigant having a grievance of civil nature has a right to institute a civil
suit in a competent civil court unless its cognizance is either expressly or impliedly barred by
any statute. A suit for its maintaibaility doesn’t require any authority of law and it is
sufficient to prove that no statute bars it.

Gangabai v Vijay Kumar (AIR 1974 SC 1126)

(stated what was said in Abdul Waheed Khan)

a suit is always maintainable only if there id an expressed or implied bar only then will the
jurisdiction aspect arises.
Jurisdiction= juris + dicto

Meaning of jurisdiction: (as discussed before)a

Union of India v Tarachand Gupta and Ors. (AIR 1971 SC 1558)

Official Trustee v Sachindra Nath (AIR 1969 SC 823)

Referred to the doctrine developed in Anisminic Ltd.

 Anisminic Ltd. v Foreign Compensation Commission (1969) 1 All E.R. 208 / 1969 1
AC 147
This case developed the doctrine for the first time. While going onto juris, discussed the auth
of court to go into jurisdiction. It said that a court can be held to have a jurisdiction to decide
a particular matter where it must not only have the jurisdiction to try the suit brought before it
but also should have the powers to pass the order sought for a as relief. Jurisdiction must
include in its entirety all the powers to pass necessary relief which may arise ordinarily out of
the subject matter at hand or which may help to decide the matter sin controversy b/w the
parties. Jurisdiction is your power to pass orders .

Ujjambai v State of U.P. (AIR 1962 SC 1621)

The case of Ujjambai highlighted the general understanding and meaning of jurisdiction.
“Jurisdiction means the pow or auth of court of law to hear and determine a cause or a matter.
It is the power to entertain, deal with and decide a suit, an action or a petition or any other
proceeding. The units of jurisdiction include subject matter, pecuniary value and local limits.
The gen rule of appl of relief remains that if I am asking for more than one counts of relief,
the court must be competent to award me all, some or any of them. But the court cannot go
beyond what has been asked for by the party.

Dhirendranath v Sudhir Chauhan (AIR 1964 SC 1300)

If the court has no inherent juris to try a particular matter, neither acquiescance or waiver or
estoppel can create such jurisdiction. A fundamental defect of jurisdiction cannot be cured by
the consent of parties and the order of the court, howsoever precise it is can be challenged at
any stage if it carries the defect of lack of inherent jurisdiction.

A.R. Antulai v R.S. Nayak (AIR 1988 SC 1531)

It is the authority of the legislature to legislate and assign juris to any court but the pow to
interpret the law and decide whether they have juris or not lies by the court.
Eg where court has expounded the legislature and reduced the role of locus standi- PIL
The power to create or enlarge jurisdiction is legislative in character and also the power to
confer a right of appeal or to take away the right of appeal is legislative in nature. No court
whether superior or inferior or both combined can enlarge the jurisdiction of a court or divest
a person of his rights to appeal or revision.

Exxtolo malo non oritor actio :

ABC Laminad Pvt Ltd. A.P. Agencies (AIR 1989 SC 1239)

Q- can a law completely take away the juris of the court? Can it go to the extent where it
grants juris to no court (right to appeal isn’t available in any court, right to juris taken away
and not vested in any other court)
A- this cannot be done except on the grounds of public policy and order. This is the meaning
of the maxim: Exxtolo malo non oritor actio [literal meaning: an agreement to oust the
jurisdiction of a court absolutely would be treated as unlawful and void and is itself regarded
as contrary to public policy

Kiran Singh v Chaman Paswan (AIR 1954 SC 340)

(This judgment hold good still and hasn’t been overruled on the aspect that no matter how
much we discuss juris, if the court passes an order w/o juris it will be null. Even the appellate
court cannot go down and say that it was valid, it will always be a nullity and cannot be
regularised.)
 It is a fundamental principle well established that a decree passed by a court w/o
jurisdiction, is nullity and that its invalidity can be enforced or set up whenever and
wherever it is sought to be enforced, including the stage of execution proceedings.
 A defect of jurisdiction strikes at the very authority of the court to pass any decree and
such a defect cannot be cured even by the consent of the parties. [if the court has
passed a decree and due to certain reason both parties abide by the decision, if it
comes to the notice that the decree was passed where there was defect of juris then
such consent will be immaterial].

Ittyavira Mathai v Varkey (AIR 1964 SC 907)

Q- validity of the decree was challenged as suit was time barred. If aw of limitation was
applied, it was otherwise time abrred so decree passed by court not valid.
SC- if the suit was barred by time and the court has yet decreed it, the court would be
committing an illegality and the aggrieved party would be entitled to have such decree set
aside by preferring an appeal. If the party aggrieved doesn’t take appropriate steps to have the
decree corrected, or have the error corrected, the erroneous decree will hold good and will not
be open to challenge on grounds of being a nullity. [A court proceeding on a matter w/o auth
then such decree is invalid but in the context of limitation, the suit was time barred but it
wasn’t the case that the court never had the auth to try it, if not time barred, the court
otherwise had right to determine it. This isn’t a deviation, it is giving a new dimension. Court
committed an irregularity but if no corrective steps by the party then the irregularity will hold
good.]

 The plaint suggests what should be the jurisdiction. Neither def nor the parties decide the
juris. The basis to formulate juris lies on the basis of the plaint. Whatever juris suggested
by the party who approaches forms the basis of investigating the basis of jurisdiction.
This is because this is the aggrieved party. If the court goes by logic of defendant, it
won’t work as the job of the def is to always negate the contention of the plaintiff. Thus
only the latter has to prove whether this court can grant appropriate remedy or not. The
court will look into the objection if any (after first looking at the plaint).
 Null proceeding- lack of inherent juris (only when this is the case can you raise objection
to juris even at a later stage). Otherwise, earliest possible opportunity. Has to prove that
when he is raising objection, that this was the earliest possible opp that he could raise this.
[otherwise general and specific rule- till the time of raising the issues].
 The jurisdiction could be a question of fact or one of law. Territorial juris- Suppose a
prop is situated at a border of Jodhpur, once investigated it is proved that it is in Pali.
Thus it is one of fact. Subject matter juris- question of law as you have to check whether
express or implied bar according to CPC. [in the former eg, the plaint brings the area of
contention thus it proves that the plaint forms the basis of deciding territorial jurisdiction].
 Plaintiff has to prove that there is a cause of action and the jurisdiction supports that cause
of action [because he has to prove the cause of action, he has to prove the jurisdiction].
 General rule of presumption: court has jurisdiction over the matter
 Sessions Court takes the longest time as it is the court of first instance.
 Basis to determine juris (3 below):

Abdullah bin Ali v Galappa (AIR 1985 SC 577)

It is a well settled principle that for deciding jurisdiction of civil court, the averments made in
the plaint are material. The defence put up by the defendant in his written statement may only
lead to the objection of such general rule of presumption. It is also well-established that while
deciding the jurisdiction, what is imp is the substance of the matter and not the form. The
plaintiff is duty bound not to circumvent the provisions of law in order to invest jurisdiction
in civil court which it doesn’t possess.

Begum Sahiba v Nawab Muhammad Mansur (AIR 2007 SC 1636)

Bank of Baroda v Motibhai (AIR 1985 SC 545)- Imp.

This case settles the issue of what should the court look into. Whether the content of the
presentation of the content.
In this case, a simple case of loan. He bank will ask for collateral as security whem applying
for loan. When you furnish this, bond signed b/w you and bank that you are giving this as
security and In case of default,, bank has the right o get proceeds from this prop. In this case,
all of this was complied w but when the person didn’t ay the emt, the bank sued the person
that he is not returning the money so to pass a decree to sell the prop or pass rder to return
money in specific time, The person said the deed said the right was less than ownership (only
possession) so the bank is the tenant. So it is a matter of clemency not of ordinary civil court.
The court said that general work is iving loan on the basis of collateral, if they become tenant
for every collateral then itll only be a tenet and never have any right to any prop. They looked
into the fact that the bank did not want any other relief, only the payment of money. U/s 9 of
CPC nothing bars the court from making it a civil suit/. Thus argument was not accepted, said
it was their duty not to go into content but the for. The content made it a money suit. Basic
rule- going to content not form

Ananti v chhannu 1930 allahbad HC

Topan das v gorakhram AIR 1964 SC 1348 (case (a) was referred in this case)
The plaintiff chooses his forum and files his suit if he establishes the correctness of the facts,
he will get his relief from the forum choosing. If it is found on a trial on the merits so far as
the issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts
alleged by the defendants are true, and the case is not cognizable by the court, there may be 2
kinds of orders passed.
1) If the jurisdiction is only related to territorial or pecuniary limits, the plaint
will be ordered to be returned for presentation before the proper court.
2) If on the other hand it is found, that having regard to the nature of the suit, the
suit is not cognizable by the court to which the proceedings belong, the suit
will be dismissed in its entirety.

Delhi district court pecuniary jurisdiction was increased so that the burden on the higher
courts is reduced as the 1st investigation is done in the district court. Further, the matters in
the high court, could now be referred to in the district court.

In cases of subject matter courts have been more serious and returning of plaint to lower court
does not take place.

Whenever the jurisdiction of the court is challenged that the court has inherent jurisdiction to
decide the same questions. Every court or tribunal is not only entitled but bound to determine
whether the matter in which it is asked to exercise the jurisdiction comes within its
jurisdiction or not.

Bhatia Cooperative Housing Society ltd v D.C. Patel AIR 1953 SC 16

Court not having jurisdiction does not mean the court does not have to the power to
determine the same. Only that court alone will decide if they have jurisdiction or not, some
other court can’t decide this.
First initial case which held that the court alone will decide whether they have jurisdiction or
not.

Various narrower types of jurisdiction: (read on your own)

1. Civil and criminal jurisdiction
2. Territorial jurisdiction or local limits jurisdiction
3. Pecuniary jurisdiction
4. Subject matter jurisdiction
5. Original and appellate jurisdiction
6. Legal and equitable jurisdiction
7. Municipal and foreign jurisdiction (extra territorial jurisdiction)
Sec9-
 all civil matters can be brought before any civil court but based on the fact whether it
is expressly barred or impliedly barred.
 Certain conditions have to be fulfilled and when these conditions are fulfilled the
court decides the jurisdiction.
 The conditions suggest that there should be an expressed or implied bar and both the
conditions have to be fulfilled in totality.

 Further if there is any conflict or doubt on the condition the court will have
cognizance as every suit of civil nature has cognizance by a civil court.

1. Expressly barred- the statue itself gives away the jurisdiction to another court or
forum. it is there to a certain law or statute.

2. Impliedly barred- one interprets from the existence of a fact whether the jurisdiction
of the court is valid over here or not or interprets from the law passed by the
legislature.

 In case of overlapping of jurisdiction, then whichever court takes up the matter first
will have the jurisdiction.

S9- A civil court has jurisdiction to try a suit on the basis of two conditions, a) the suit must
be of a civil nature b) The cognizance of such a suit should not have been expressly or
impliedly barred.

Matters regarding carrying out of religious procession, elections, matters related to FR etc are
not matters of the civil court.
Eg- When the matter is regarding encroachment of a waqf property goes under the
jurisdiction of the civil court but administration of the waqf property will not be under the
jurisdiction of the civil court.
Eg- Recovery of money due to failure of payment by the temple trust will fall under the civil
matter. Further for the appointment of a chief priest from a particular community with
interpretation of rituals and customs therefor, it will not be a suit of civil nature.

S151- inherent powers.

Very few chances of being accepted since inherent powers are themselves have limitation.

Under sec9-
1. Prove it is of a civil nature
2. It is not impliedly or expressly barred

Suit of civil nature-

Civil court can exercise jurisdiction over a suit of civil nature which pertains to private rights
or remedies of a citizen as distinguishable from criminal or political matters or religious
matters. In a civil suit if a principle questions is of a civil nature (right to property or other
civil rights) and the adjudication incidentally also involves the determination relating to a
caste question or to a religious right or religious ceremonies, it does not cease to be a suit of
civil nature and the jurisdiction of civil court is not barred. The jurisdiction of a civil court is
decided in accordance with the principle question of the controversy.
 Most rev. P.M.A Metropolitan v Moran Marthoma AIR 1995 SC 2001
Laid down by the court in a form of doctrine that even if a religious matter is intermingled
with the civil matter in order to find out if it is a case of civil nature it is important to identify
the most important question at hand and it is important to test it. Two parameters of the test
were give- 1) nature of relief sought 2) interpretation of facts.
If the principal question is of civil nature, then the matter is of a civil suit.

Suits of civil nature-

 Suits of civil nature
 Suits for damages
 Suits for right to property
 Suits for specific performance of contract
 Suits for rents
 Suits related to accounts, etc.

Suits not of civil nature-

 suits involving principle q of case revelation
 Suits involving religious rights or ceremonies
 Suits for recovery of voluntary payments. Eg- temple offerings. Etc.

A Suit is said to be expressly barred when its cognizance is barred by any enactment for the
time being in force it is open to a competent legislature to bar the civil court but every
presumption should be made in favor of the jurisdiction of the civil court and the provision
excluding the jurisdiction of the court must be strictly construed. If there is any doubt, about
the exclusion of the jurisdiction of civil court, the court shall lead to an interpretation of the
jurisdiction which would maintain the jurisdiction of the court.

CIT v Parmeshwari Devi AIR 1998 SC 1276.

Abdul wahid Khan v Bhawani

Bharat kala bhandaar pvt ltd v Municipal Community Dhamman Gaon. AIR 1966
SC 249.
Referred and reiterated in Dhurabhai v State of MP.

State of Tamil Nadu v Ram Linga Samigal AIR 1986 SC 794

If the remedy provided by a statute ousting the jurisdiction of the civil court is not adequate
and all questions cannot be decided by the special tribunal as sought for relief, the jurisdiction
the of the civil court is not barred.

A suit is said to be impliedly barred when it is barred by general principals of law where
exists a specific remedy given by a statue, it deprives the person who insists upon a remedy
of any other form than that given by the statute. Where an act creates an obligation, and
enforces its performances in a specified manner, that performance cannot be enforced in any
other manner.
 LIC v India Automobiles & Co. AIR 1991 SC 884

specific performance

premier automobiles v Kamlekar Shanta AIR 1975 SC 2238

exclusion of civil court and its limitation

1. situation of is not to be readily inferred and such exclusions must be expressly clear.
In scenario where the jurisdiction of the court is barred, a court has jurisdiction to
examine whether the provisions of such act and the rules made there under have or
have not been complied with, or the order passed is contrary to law, malafide, ultra
vires, arbitrary, purported to be violative of principles of natural justice etc. in all such
cases the court is not bound by such Act and the jurisdiction of the civil court will not
be deemed to be ousted.

Secretary of State v Sask and Co. AIR 1940 SC/PC 105 [read book for foundation on
jurisdiction of court to oust]

Firn State Radha Krishan v Administrator Municipal Community Ludhiana AIR

1963 SC 1547
the court has stated a suit in a civil court will always lie to question the order of a tribunal
created by a statute, even if its order is expressly or by necessary implication made final, if
the said tribunal abuses its power or does not act under the Act but in violation of its
provisions.
General principles of exclusion of jurisdiction

Dhulabhai v State of M.P

The court, in the context of analysing whether civil court has juris and whether that juris is
barred, will check what is the existing posn of law as leg is empowered to curtail juris of
court or tribunal.
This case elaborated on aspect of juris and laid down certain principles acting as guideline for
all the matters of jurisdiction.
General principles of exclusion of jurisdiction:
1. Where a statute gives finality to the orders of tribunals, the civil court’s jurisdiction
must be held to be excluded if there is adequate remedy to do what civil courts would
normally do in a suit. This principle will not apply if the tribunal has not acted in
conformity w the fundamental principles of judicial procedure.
2. Where there is an express bar of jurisdiction of a court, an investigation to find the
adequacy of remedy provided under the Act may be relevant but this isn’t a decisive
test for sustaining the jurisdiction of a civil court. If a statute creates a special right or
liability then in that case all the questions associated w the right and liability so
created shall be adjudicated by the tribunal so constituted and the intervention of civil
court on grounds of inadequacy may be possible only if there is no remedy attached w
such right.
3. Challenge to the provision of a particular act as ultra vires cannot be brought before
tribunals constituted under that Act.
[tribunal cannot adjudicate upon the validity of the Act w which it was established it can only
be done by a higher court of adjudication, not est by that Act. Civil Court cannot adjudicate
on the validity of a law, they can only make the matter pending.]
4. When a prov is already declared unconst., any prov under the Act may be brought to a
challenge through a suit. A writ of certiorari may include a direction in this context
only if the period of limitation is breached, but it isn’t a compulsory remedy to be
replaced through a suit.
[suppose an IT Act is challenged on the grounds of head of income to be computed and
taxed- inc from salary, business and possession, house property, other sources; challenge
brought before a competent court- discretionary, harassing parties. Court declares it to be
invalid and thus Act struck down. The above point is suggesting that when already declared
invalid, any dispute wrt what has been done by the auth under the act can be brought before
the civil court in civil suit (not the tax authorities). Approach saying that wrongly taxed, etc
thus compensation from the govt. Only in cases where period of limitation breached then
issue writ of certiorari can be issues directing the tribunal to entertain that particular matter.]
5. Questions of the correctness of an assessment apart from its constitutionality are
available as decisions only to the authorities and a civil suit doesn’t lie against such
procedures.
6. Ac exclusion of the jurisdiction of the civil court is not to be readily inferred unless
the conditions prescribed under this judgment applies.

(1 class missing)
8. RES JUDICATA
 The imp aspect is that the sole aim of this doctrine is to avoid multiplicity of suits.
 3 fold object:
1. person not to be vexed twice (not facing continuous litigation)
2. state ensure proceedings come to an end, no multiplicity , so that resources are not
wasted
3. judgment of court respected and accepted as it is (allowed to be challenged to a
certain extend but not beyond)(court given due respect)
[this three-fold objective serves – public policy : last 2 points and pvt interest: first point]
 Aiming at conclusiveness of judgment, decide one judgment for one suit is enough
- Privilege of king that will make a decision final and binding [maxim of roman law
talking about the same aspect of res judicata ]
 Effective test of construing res judicata is looking into diff dimensions: (?)
1) who decided
2) time frame -when decided
3) which court decided it
4) parties
 look into issue at hand and the substance and not the representation (could be
represented in a diff manner). Thus have conclusive framework of deciding
conclusvity of a judgment
 Res judicata from the aspect of adjudication- rule of conclusiveness of judgment and
not investigation. Adjudication imp for invoking res judicata. (cannot re-open)
 Public policy- access to justice would be denied to other parties only those people
would be getting access to justice. Immediate right of relief of the other parties would
be denies.
- More imp, court should always remain a final authority. Respect of court will go down.
- If multiple revisits to the same thing will make the situation worse for execution
  Ex captio rex judicata- one suit and one decision is enough for a single matter or a
single dispute. The doctrine of res judicata aims at conclusiveness of a judgment
where the matter is finally decided by a competent court and after such decision, no
party should be permitted to reopen the matter. In a subsequent litigation

o Satyadhan Ghoshal v Deorjin Devi (AIR 1960 SC 941)

When a matter, whether on a question of fact or a question of law has been decided the
parties in one suit or proceeding and the decision is final either because no appeal was taken
to a higher court or because the appeal was dismissed or because no appeal lies at all, neither
party will be allowed in a future suit or proceeding b/w the same parties to canvass the matter
again.

[go through s.11 and the first 6 explanations given there]

Point of res judicata- finality for the time being

Need for investigating arises when you don’t understand the consequences and implications
of this. Obligation on court to understand this.
objectives of re jusidcata-
1. Nemo Debet Bis Vexari Pro Una Et Eadem Causa- no man should be vexed twice for
the same cause
2. Interest Republicae Ut Sit Finis Litium- in the interest of the state that there should be
an end to a litigation.
3. Res Judicata Pro Veritate Occipitur- a judicial decision must be accepted as correct.

Duchess of Kingston case

Importance of this case is that they have decided the broader guideline to see if res judicata
applies or not and on what circumstances these rules will be applied.
Sir William the/de grey- he suggested that the judgment of a court in cases of civil matters is
based on two deductions- 1) the judgment of the court of a concurrent jurisdiction directly
upon the point as a plea, bar or as evidence conclusive between the same parties upon the
same matter directly in question in another court. 2) that the judgement of the court of an
exclusive jurisdiction directly on the point is in like manner conclusive upon the same matter
between the same parties is in question in another court for a different purpose.

This case finds its reference in

Dariyaro v State of UP case.

rule of res judicata is a rule of universal law pervading every well-regulated system of
jurisprudence and is put upon two grounds. 1) the public policy and the necessity which
makes it a matter of estate interest 2) hardship of the individual aiming and providing justice
to the same. (corpus juris 35)

Final- final/conclusiveness for the time being in forth.

Judges usually revisit to decide another matter or aspect.
Progressive jurisdiction does not stop res judicata. Further it means “from now on” it does not
include revisiting the judgments to undo it.
However, undoing of the previous judgments is not allowed or valid.
Revisit- only when there is a severe change in direct circumstances, public policy , public
interest etc.

1. Difference between Res Judicata and Res Sub Judice

RES JUDICATA RES SUB JUDICE

1. Applies to a matter adjudicated 1. Applies to a matter pending for

upon already trial.

2. Bars the trial of the suit or an 2. Bares the trial of a suit pending
issue which has been for decision with a court of a
conclusively determined competent nature.
including institutions thereof.

2. Difference between res judicata and estopple

3. Batul Begum v Hem Chandar 1960 All HC

The rule of estopple is nothing else but interpretation of the term constructive res judicata
where the verdict will be acting as an estopple for the court, but there exists difference
between the two terms-

RES JUDICATA ESTOPPLE

1. Results from the decision of the
court.
2. Based on public policy.
3. Excludes the jurisdiction of a court
to try a case and even precludes an
enquiry in limine.
4. Prohibits a man contesting the same
thing on multiple occasions.
5. Presumes conclusiveness of the
truth of the decisions in the former
suit.
1. Results from the act of the parties.
2. Proceeds on the doctrine of equity-
which means a person who by his
conduct has induced another to alter
his position disadvantage and
cannot turn around and take
advantage of such alteration of
others position.
3. It is only a rule of evidence
directing the action of a party.
4. Prevents him from saying one thing
at one time and another thing at
another time, which acts as opposite
to each other.
5. Prevents a party from denying what
he once refers as a truth.

Estopple- majorly acts on he conducts where one can’t deny wants already been said
It only binds a single party.
Conduct based

Res judicata- can’t undo what was decided in the previous judgment.
Therefore, it binds all the arties
Binds the parties to a conclusive decision

Splitting of claims – (order 2 rule 2)- bars splitting of a suit into different suits which could
be decided under the same judgment. In this the second issues might not have been discussed
earlier but the issue could come under the previous issue.

3. Difference between res judicata and splitting of claims

RES JUDICATA SPLITTING OF CLAIMS

1. Plaintiffs duty to bring 1. Only requires the plaintiff to claim

forward all the grounds of all reliefs flowing from same
attack in support of his claim. cause of action.

2. Refers to both the parties i.e- 2. Only refers to a plaintiff and

plaintiff as well as defendant and bars the suit on such ground.
precludes a suit as well as a
ground of defense.

Res judicata- not related to relief.

Only looks into what has been presented in the court earlier.
Refers to the entire proceeding.

Splitting of claims- done only to receive multiple reliefs.

Refers to the splitting of claims to increase multiplicity in order to claim multiple reliefs.
Therefore, its more about relief.

Similarities-
Both res judicata and splitting of claims are barred.

Conditions for application of res judicata-

1. The matter directly and substantially (read the meaning) in issue in a subsequent
suit, or issue must be on the same matter which has been already adjudicated upon
directly (explanation no. 3) or constructively (proving the link by interpretation)
(explanation no. 4) in the former suit.
2. The former suit must have been a suit between the same parties or between parties
under whom they or any one of them claim. (Explanation no. 6)
3. Such parties must have been litigating under the same title as was in the case of
the former suit.
4. The court which decided the former suit must be a competent court to try the
subsequent suit or the suit in which the issue was subsequently raised.
(explanation no 2 & 8)
5. The matter directly and substantially in issue in the subsequent suit must have
been heard and finally decided by the court in the former suit. (explanation no. 5)
 - Sheo Dan Singh v Dariyao Kunwar AIR 1966 SC 1332

Matter in Issue-
This means a decision of a competent court acting as a bar on institution of the subsequent
suit where such issue may be an issue of fact an issue of law or a mixed question of fact and
law. it belongs to the rights litigated among the parties for which a claim may lie. In a given
circumstance a fact is to be checked with applicable law to determine such issues.

Mathura Prasad v Dosibai N B Jeejee Bhoi AIR 1971 SC 2355

Issue can be either of fact or law or mixed issue of fact and law and all three are covered by
res judicata for a subsequent suit. The job of the court is to interpret the fact in the light of
law/ circumstances and to pass a judgment.

Directly in issue-
Refers to a fact which has been involved immediately without intervention. A fact cannot be
said to be directly in issue, if the judgment stands whether that such fact exists or not. Such
interpretation is based on facts and circumstances of the given case.

Substantially in issue-
It means essentially or materially a matter being invoked in a litigation which is short of
certainty but greater than mere suspicion. Also refers as a fact in effect which may not be in
expressed terms.

Pandu Rang Ramchandra v Shanti Bai Ramchandra AIR 1989 SC 2240

Constructive Res Judicata

Workman v Board of Trustees Kochin Court Trust AIR 1978 SC 1283

When any matter which might and ought to have been made a ground of defense or attack in
a former proceeding but was not so made, then such a matter in the eyes of law to avoid
multiplicity of litigation and to bring about finality in its judgment is deemed to have been
constructively in issue and is therefore is taken to be as decided.

State of UP v Nawab Hussain AIR 1977 SC 1680

Not contemplated or argued in the court as a matter of attack or defense, then arguing that
this is not coming under res judicata as this aspect was not argued, is not accepted and it is
barred by constructive res judicata. Since the matter is incidental under the same point and for
the judgement, then one can’t invoke it saying that the issue wasn’t expressly argued earlier.

The supreme court stated that a suit is deemed to be barred by constructive res judicata if it is
established that the plea taken in a subsequent suit was well within the knowledge of the
plaintiff in a previous suit even though he chose not to express it.
 Forward Constructive Co. v Prabhat Mangal AIR 1986 SC 391
The court held that the principle underlying explanation no. 4 is that where the parties have
had an opportunity of controverting a matter that should be taken to be the same thing as if
the matter had been actually controverted and decided. It is true that where a matter is raised
to be constructively in issue it was not actually heard and decided but could only be deemed
to have been heard and decided.

As a matter of general rule the doctrine of res judicata rule, similarly the doctrine of res
judicata will also equally work between co-defendants and co-plaintiffs if certain conditions
are satisfied.
1. There must be conflict of interest between co-defendants
2. It must be necessary to decide that conflict in order to give relief to the plaintiff
3. The question raised between the co-defendants must have been finally decided
4. The co-defendants were necessary or proper parties to the former suits.

Iftikhar Ahmed v Sayeed Meherban Ali

If these conditions are fulfilled then res judicata will work with the co-plaintiffs and the co-
defendants and both are bound by res judicata.

Nottingham v Earl Shrewsbury case

If Plaintiff cannot get his right without trying and deciding a case between co-defendants, the
court will try and decide such case and which will bind the co-defendants. But if the relief
given to the plaintiff does not require a decision of any case between co-defendants, the co-
defendants will not be bound as between each other by any proceeding which may be
necessary only to the decree which the plaintiff obtains.

Syeed Mehmoob Sahab v. Sayeed Ismail AIR 1995 SC 1205

If a party obtains a decree from the court by practicing fraud or collusion he cannot be
allowed to say that the matter is res judicata and cannot be open.

Iftikhar Ahmed v Sayeed Meherban Ali

For co-plaintiff- if there is a conflict of interest between plaintiff and if it is necessary to
resolve the same by a court in order to give relief to a defendant and the matter is in fact
decided it will operate as res judicata between such co-plaintiffs for all subsequent suits.

Constitutional matter (write petitions) + civil (res judicata)

Dariyao v state of UP AIR 1961 SC 1457

Contesting the final decision of the court in cases of writ petitions.
Matter of res judicata and the relation with writ petition came up.
Court said that there is conclusiveness of writ petitions also and that they are also bound
bythe doctrine of res judicata. Earlier they were hesitant in saying so, as they believed this
will closes the door of justice to the parties. Doctrine of res judicata is therefore applicable to
writ petitions also.
The SC while dealing with the issue of doctrine of res judicata in writ proceedings laid down
the governing principles which are:
1. If a petition under A226, is considered on the merits as a contested matter and is
dismissed, the decision will continue to bind the parties. Unless it is reversed in
appeal or modified by the court itself.
2. It would not be open to a party to ignore the judgment under A32, by SC to moving
an original petition on the same facts and for obtaining the same order or directions on
such writs.
3. If the petition under A226 is dismissed by the high court not on merits but because of
laches’s applying for such writ or it is established that the party had an alternative
remedy to it, such decision will not constitute a bar for a subsequent litigation filing a
separate write under A32 on the same facts.
4. Such a dismissal by the court may constitute a bar under A32 if the facts thus found
by the HC becomes relevant under A32 also.
5. If the writ petition is dismissed in limine and an order is pronounced on that behalf
and such order relates to the merits of the case (no prima facie case made out), then in
such situations only it will act as a bar.
6. If the petition is dismissed in limine, without speaking order, such dismissal cannot be
treated as creating a bar of res judicata.
7. If the petition is dismissed as withdrawn it cannot create a bar on subsequent litigation
for same facts under A32.

Addition of 3 principles by:

4. Sarvuja transports services v STAT AIR 1986 SC 88

1. Rule of constructive res judicata- if some point ought to have been covered a
point/ground of attack or defense it is deemed to be included in the doctrine of res
judicata.
2. The rule of res judicata does not apply to the writ of habeas corpus.
3. The general principles of res judicata apply to the different stages of same suit or
proceedings.

What should happen in the case of ex parte?

- Pandu Rang Ramchandra v Shanti Bai Ramchandra AIR 1989 SC 2240

Ex parte decrees are order on merits and therefore it is covered by rule of res judicata

FOREIGN JUDGMENTS

Covered by section 13 of CPC.

Meaning of foreign court-Any court established outside the territory of India, or which is not
carried on by the authority of central government.
Therefore, any judgment passed by the above mentioned is foreign judgment
Applicability will not be done directly; the courts of India will check the judgment by
checking it through principles of natural justice and the laws of the land and then it will be
see if it can be applied or not.
E.g.- all courts established in India before partition. (from Iran to Burma: initial territory of
India)
Mutual cooperation treaty- Indian govt. may establish any adjudicatory body in another
country, then the authority will be deemed to that court that the authority is being given by
the central govt. (also includes executive order and ordinances)

Tests/ guidelines on which the foreign judgments may be enforced in India- (s.13) (in order to
make judgment, clause a to f of s13 prescribing such conditions have to be fulfilled in toto,
their effect is cumulative)

1. Competency of the court- the court under which the law was formed/passed
- competent jurisdiction according to the law by which such courts have been est (the
domestic law)
- competent to hear on the basic principles of intl law as well
- if both are present then foreign judgment valid
- [competency also imp for res judicata]

- R. Viswanathan v Rukn ul Mulkh Syed Abdul

For judgment is conclusive if pronounced by competent court and such competency should
be tested in accordance w the law of the state establishing it and also in accordance w broader
principles of intl law.

Gurdyal Singh v Raja of Faridkot (1895 PC)

Same fact est that competency est wrt law of the state deciding it
Also, if a judgment is passed by a court merely on the fact that the actual cause of action has
arisen there and the parties reside in some other jurisdiction then only the court where the
parties reside will have jurisdiction to enforce such judgment.

2. Judgment should be based on the merits of the case

- based not on merit but any other issue or reason
- whether formally passed and investigation into evidences and question of law and fact
was done
- if passed only on the basis of conduct of parties (eg- dismissed due to non attendance of
parties) then such judgment isn’t applicable to India.

(4) International Woolen Mills v Standard Wool UK Ltd (AIR 2001 SC 2134)
- discussed the aspect of what is judgment on merit
- ‘the real test’ for deciding merits of a given case is to see whether judgment was merely
formally passed for default of conduct of the parties or defendant or whether it was based
upon genuine considerations of truth or falsity of plaintiff claim
- SC tries to point out what is judgment of merit
- If judgment declared to be decreed due to party not appearing, non-payment of fees etc,
these wont be considered. Going into and investigating the truth vis a vis the plaintiff’s
right and conduct of the defendant in that context.

3. Should be in consonance with the laws of land

- public policy of Indian law offended or against the broader princis of intl law.
- Judgment based on a law in contrast w the public policy of India
 Narasimha Rao v Venkatlakshmi (1991) 3 SCC 451
‘When a foreign judgment is founded upon a fact of jurisdiction or a ground not recognised
by Indian or intl law it becomes a judgment in defiance of law and therefore becomes or
remains unenforceable.

4. Followed the principles of natural justice

- this is related to judicial procedure as natural justice applies to the judicial process not the
merits

(6) Sankaran Govindan v Lakshmibharat (AIR 1974 SC 1764)

- In this judgment, the court pointed out one imp dimension. Natural justice in India, we aim
to look at the transparency of the judicial process. Substantive law will take its own course
but the process should be fair and transparent too. Imp aspect – process also cannot be
neglected or ignored, the process itself should be above reasonable doubt
- ‘Natural justice refers to the fact that minimum requirements of judicial procedure is
assured and upheld. Therefore, a judgment which is a result of bias or want of impartiality on
part of the judge, such judgment will be coram non judice or nullity.

5. Element of fraud should not present while passing a foreign judgment

- not a mere mistake but misleading the court

(d) A.V. Papayya Shastri v Govt. of A.P. (AIR 2007 SC 1546)

- Normally fraud has two dimensions, substantive and procedural aspects. However, the
latter can be checked by the previous condition but If fraud on substance then that will
affect the merit of the judgment. Law was applied to a particular repr on the basis of facts
that was never there. Thus, the law is useless in this case. Taking away the judicial
process of courts applying judicial minds. The judgments are severely compromised.
- A judgment obtained by playing fraud on the court is a nullity and non est in the eyes of
law. Such judgment has to be treated as null by every court whether superior or inferior. It
can be challenged in any court at any point of time including appeal, review, writ or even
through collateral proceedings.

6. Enforcement of such judgment should not breach upon any Indian law
- the judgment prima facie isn’t violating Indian law but when we enforce it it would lead
to violation of Indian law.
- Violate principles and rights with respect to any proceedings

The ultimate judgment on the judgment on the foreign court lies with the Indian courts only.
If the court still chooses to enforce a foreign judgment the legislature can bring in an order
negating the judgment.

(3) Satya v Teja Singh (AIR 1975 SC 105)

Any foreign judgment founded upon breach of Indian law or the execution of whom may
offend the public policy, remains unenforceable.

Cases-
FJ act as Rej Judicata:
 iii) Batad and Co. v East India Trading Co. (AIR 1964 SC 538)

R. Viswanathan v Rukn ul Mulk Syed Abdul (AIR 1963 SC 1) (imp)

(both judgments)
A Judgment delivered by a for. court of for jurisdiction is enforceable in India. Both plaintiff
and defendant are entitled to non-suit on basis of such judgment.

Principle of comity of nations- objective of FJ

4. Satya v Teja Singh (AIR 1975 SC 105) (imp)

Recognition of foreign judgment on basis of comity of nations is accorded as non an act of
courtesy but on the considerations of justice, equity and good conscience.

S14- presumption as to foreign judgment

(3) Narsimha Rao v Venkatlakshmi

Mere production of a photo sted (?) copy of a decree of foreign court is not sufficient. Such
decree is reqd to be certified by a competent authority or representative of such the
jurisdiction under which the court is established.
PLACE OF SUING IN INDIA
 Which court to approach and under which provision (refer s15-20)

Section 15- suit to be filed in the court of lowest grade competent to try such matter
 General provision
 Which court to approach- s15 gives guideline (always try to file suit at the lowest
level where cause of action arises)
 When there is a specific guideline, that override the general one, however, if nothing
is mentioned then this is taken into account.
 Two fold object of this section:
1. to see that the court of higher grades are not over burdened by such suits
2. to afford convenience to the parties and witnesses which may be examined in such
suit.
[one class missing]
INSTITUTION OF SUITS
 s26- s35(b) of CPC covers institution of suits and order 1
 It deal w the aspect of who all are parties to the suit, who is being sued and for what
reason it is being brought to the court
 Elements:
1. there should be opposing parties and w/o them there would be no dispute arising
- framing of issues requires that on a common point, the two parties disagree
2. subject matter associated w the suit or in in dispute [right/property etc.]
- helps court in deciding the central point of augment
- helps them decide the competency of the court
3. has to be some wrong committed- valid cause of action [cause of action accruing
out of such opposition]
- differential opinion and subject matter may be present but until and unless something is
done that gives you the right to sue me, there can be no suit.
- Most imp element
 4. Relief claimed for the redressal of valid cause of action- want relief from the court

 what is a suit- any proceeding by one person or persons initiated against another
person or group of persons in the court of law wherein the plaintiff pursues the
remedy which affords him for the redress of any injury or enforcement of a right
whether at law or in equity. Thus there are 4 valid constituents of a suit:
(the 4 above points)

Missing?
Misjoinder and non-joinder
When a person who is a necessary or proper party to a suit has not been joined as a party to
the suit, it becomes a case of non-joinder. On the contrary, if a party has been joined to the
suit contravening rule 1 and rule 3 of Order 1, which is neither a proper party or a necessary
party, it becomes a case of mis-joinder.

S.K. Saldi v U.P. State Sugar Corporation

The court observe that the mis-joinder or non-joinder of parties cannot be the sole ground of
dismissal of the suit and further, a decree passed by a competent court may not be set aside
merely on the ground of wrong description of defendant

B. Prabhakar Rao v State of A.P. (1985 Supp. SCC 432)

The Supreme Court has laid down that the interest of the persons who are not joined as
parties, if proved to be identical with those who were present before the court and who were
sufficiently represented would deem to include their representation and therefore the petition
is not liable to be dismissed on such grounds.
[these are technical procedures and substantive justice not to be undermined due to this]

Rule 13, Order 1 talks about when an objection as to non-joinder and mis-joinder is to be
taken. Case in this context:

Naba Kumar v Radha Shyam (PC 229)

The ratio was reiterated in the SC later as well. The court suggested, interpreting rule 13 that
if the objection as to non joinder of necessary party has been taken by the defendant at the
earliest stage and even after that the plaintiff declines to add such party, he cannot
subsequently be allowed in appeal to rectify the error by applying for the amendment. As a
general rule otherwise, all objections on the ground of non-joinder or mis-joinder of parties
should be taken at the earliest opportunity. Otherwise it may be deemed to have been waived.
[if brought at the earliest possible opp., the then court and parties will find it convenient to
chip in to the litigation, if not will have to track it back to day one of the start of the
litigation.]

Rule 10 of Order 1- Striking out, adding or substituting the parties

- comes to the knowledge that the party isn’t the correct party or that the party added will
not give him complete justice and some other party should have been added. Can apply to
the court to just add a party without adding anyone or substitute one party for another or
just adding other parties
- Conditions to be looked into:
1. whether the person who has been sued is a wrong person [name, etc., is wrong]
2. whether the mistake was bona fide or deliberate in nature
 3. whether such amendment is necessary to adjudicate the real dispute or subject matter
of the litigation or not

Anil Kumar v Shivnath 1995 (3) SCC 147

The underlying object of rule 10, order 1 is to save honest plaintiffs believing bona fide in the
maintainability of their claims being non-suited on a mere technical ground. The policy of the
rule is to decide the real questions in the controversy between the parties bypassing the mere
technical objection for defeating a just and honest claim by discouraging puerile contest on
technicalities

Sub rule 2 of rule 10 empowers the court to strike out the parties on two grounds :
1. Such person ought to have been joined as plaintiff or defendant and is not so joined
2. Without his presence the question involved in the suit cannot be completely decided
Case relating to broader domain of the power of the court in this context

Raziya Begum v Sahibzihadi Anwar Begum AIR 1999 SC 976

The SC has laid down as follows that the power of the court to add the parties or strike out
the parties under rule 10 sub rule 2 should be governed by the following principles:
1. The addition of parties under rule 10 of order 1 is generally not one of initial
jurisdiction of the court but of a judicial discretion which has to be exercised in view
of all the facts and circumstances of a particular case and in some cases it may raise a
question of jurisdiction which may be limited to as developed u/s 115.
2. In a suit relating to a property a person may be added as a party if he has a direct
interest which is distinguishable from a commercial interest.
3. Where the subject matter of litigation is a declaration as regards to the status or legal
character, the rule of direct interest may be relaxed.
4. The cases contemplated in the suits or declaration should be determinable in
accordance w the statutory provision of s42 and 43 of the Specific Relief Act.

[missing notes]
FRAME OF SUITS
Order 1
First aspect: Inclusion of claims [rules 1 and 2].
A cause of action might give rise to multiple claims (multiple remedies can be sought from
the Court). As a plaintiff I should always include the entire claim in the plaint. If multiple
releases not afraid of claiming of all of them. In case no bona fide intention and if proves,
dilues chance f getting relief. 2) if paint read by defendant and there is no claim initially, only
including it later, the defendant should be aware of what you are doing. Procedural law
follows principal of natural justice, both parties kept at equal footing.

Inclusion of entire claims:

1.every suit should include the whole of the plaintiff’s claim in respect of cause of action and
as far as practicable all matters in the dispute between the parties should be aimed to be
disposed off finally. It indicates that in each case the court will have to see whether it was
practicable for the plaintiff to frame his suit in such a way so as to include his entire set of
claims associated with the cause of action. And should convey what is being relinquished by
the plaintiff through non-inclusion in the plaint. [suit should be drafted such that the entire set
of claims should be included]
4th September (Shradha)

Whether the court has any subjective or objective ideas or is it based on facts and
circumstances?
There are certain conditions laid down in the case of State of Maharashtra v National
Construction Company AIR 1996 SC 2367. These conditions are-
1. Whether the cause of action in previous suit and the subsequent suit is identical.
(identical nature)
2. Whether the relief claimed in the subsequent suit could have been given in the
previous suit on the basis of pleading made in the plaint. (Whether the relief could
have been granted)
3. Whether the plaintiff omitted to sue for a particular relief on the cause of action,
which has been disclosed in the previous suit. (Whether the relief that could have
been granted was not provided)

Mohammad Khalil v Mehboob Ali

Which suits should be allowed and which should not be under the order 2 rule 2. The
sc therefore laid down certain points and conditions. These are-
1. the correct test in the causes following under, whether the claim in the new suit is
in fact founded upon a cause of action, distinct from that which was the
foundation of the the former suit.
2. The cause of action here would mean that every fact, which will be necessary for
the plaintiff to prove if, traversed in order to support his right to judgment. (Cause
of action is all those facts which give rise to certain allegations and is required to
be proven)
3. If the evidence to support the two claims is different then the cause of the action is
also presumed to be different. (If not clear from factual side, can be proceed from
the evidence side)
4. The causes of action in the two suits may be considered to be same if in substance
they are identical. (Irrelevant in what form the plaint is presented)
5. The cause of action has no relation whatsoever to the defence that may be set up
by the defendant nor does it depend upon the character of the relief prayed by the
plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a
conclusion in his favour. (Only investigate the pleadings by the plaintiff. Will not
check from the defence of the defendant to check whether the substance is similar
or not)

Order 2 rule 4 & 5

Joinder of claims- this provision means that normally one is not allowed to join claims,
except the certain claims provided in rule 4 & 5. In these cases court is bound in all other
cases, it is the discretion of the claim. Further it is based on the discretion of the court to see
if they want to join the claims or not.

Rule 4- immovable property. (normally will not be allowed unless leave from court unless)
1. Claims for mesne profit and arrears of rent in respect of the property claimed by the
plaintiff or any part thereof so claimed
2. Claims for damages for breach of any contract under which the property or any part
thereof is held.
 3. Claims in which the relief sought is based on the same cause of action. (allowed on
the same suit but not in a new suit)

Automatic joining of claims may take place in case of the above-mentioned conditions.

Joinder of cause of action – Rule 3 & 6

Order 4 & s26

Institution of suit where the rule 1 of order 4 suggests that every suit must be instituted by the
presentation of plaint in duplicate (with two identical copies) or in such other manner as
maybe prescribed by the plaintiff himself or his advocate or by his recognized or by any other
person duly authorized by him.

A plain must be presented to a court or such officer which is appointed on that behalf and has
to be filed on a working law and working time.

Suit by indigent person may be allowed by s33 where every particular plaint needs to be
registered

Suit against minor- a suit can be brought against a minor and would be deemed to be
instituted from the date of the presentation of claim and not from the appointment of
guardian.

[one class written]

 MODULE 3: PLEADINGS
[one class missing, take from Shradha- written]
 Order 6 Rule 2- Principles/Basic Rules of Pleading
1. Pleadings should state facts and not the law
- it is the duty of the party to state only the facts on which they seek to rely upon for their
claims and it is for the court to apply the law to the facts pleaded by the parties
- pleadings should contain a question of fact on which a party intends to differ from the
other party and any type of negligence portrayed on behalf of the other party should also
form part of the pleadings and the corresponding facts need to be highlighted.
- A judge is under a duty to apply the correct law upon the facts pleaded by the parties even
if the law cited by the parties does not turn out to be correct. A construction or
interpretation of document is a point of law and need not be pleaded specifically by the
parties.

I. Sayid Dastagir v T.R. Gopalkrishna Setty

(the above pt wrt to facts and not law)- duty of the parties is to plead the facts, law is the
domain of the judge, he will apply the appropriate law

Ramprasad v State of M.P.

Duty of the court is to apply the law even if the law doesn’t turn out to be correct

2. Pleadings should be on material facts alone

- Material facts will mean all the facts upon which the plaintiff’s cause of
action or the defendant’s defence depends. Or in other words, all those facts
which must be proved in order to establish the plaintiff’s right to relief
claimed in the plaint or defendant’s defence presented in the written statement.

Calcutta Discount Company Ltd. V ITO

Udhav Singh v Madhav Rao Sindhia (AIR 1976 SC 744)

[the court only decided what will be included in primary facts-both cases]
All the primary facts which must be proved at the trial by a party to establish the existence of
a cause of action or his defence will be construed as material facts.

Virendranath v Satpal Singh

It is absolutely essential that all basic and primary facts which must be proved at the trial by
the party to establish the existence of a cause of action or a defence are material facts and
must be stated in the pleadings of the party. Further, particulars of the party or particulars of
the facts ensure the conduct of fair trial and are thus required to be pleaded because it would
not take the opposite party by surprise.

3. The parties should argue on facts and not evidences

- there are two facts: facta probanda (material facts reqd to be proved) and facta proventia
(evidences through which it is to be proved)
- pleadings should contain facta probanda alone and not facta probentia. The latter may be
called upon in the court on the basis of issues decided between the parties

Williams v Wilcox and Phillips v Phillips

Indian case referring them:
 Virendranath v Satpal Singh
The court while laying down the distinction b/w the two has settled that pleadings must
contain only the facta probanda and the facta probentia which helps in establishing the case in
favour of the parties may be proved during the trial in order to establish the facts in issue.

4. Pleadings should be in a concise form

- the basic rule of drafting suggests that pleadings should have sufficient gravity and
precision. The pleadings must point out to specific facts avoiding ambiguity and every
pleading should be divided into separate paragraphs so as to ensure the applicability of
facts in the case and it helps in avoiding the option open to the party to turn back from
their facts or to adduce additional facts, taking advantage of such ambiguity.
- If care is taken in syntactic process, the pleadings can be saved from tautology

Virendra Kashinath v Vinayak Joshi

Missing??

Amendment of Pleadings order 6 rule 17 (imp) and 18)

17- the court may at any stage of the proceedings allow either party to alter or amend the
pleadings in such manner and on such terms as may be just and all such amendments deemed
necessary for the purpose of determining the real questions in controversy

Rule 17 proviso: provided that no application for amendment shall be allowed after the trial
has commenced unless the Court comes to the conclusion that in spite of due diligence the
party could not have raised the matter before the commencement of the trial.
- this proviso gives specific circumstance as well as a general rule

Object of the rule is that the court should be facilitated to try all the matters on merit and
should consequently allow all amendments that may be necessary for determining the real
question in controversy to the extent that it doesn’t cause prejudice to the other party. The
aspects of procedural law is to provide justice and not punish parties for the mistakes for the
mistakes committed by them during the presentation of pleadings and the larger purpose of a
valid decree should be achieved

a. Suraj Prakash v Raj Rani AIR 1981 SC 485

Cropper v Smith (1884) 29 KB 700

Rule laid down in this case and adopted in the Indian scenario in the above case

Rule 17 gives wide discretion to the court to alter or amend the pleadings of the parties but
such discretion should be utilised or exercised judicially and in consonance with well
established principles of law. To eliminate the ambiguity in the utilisation of discretionary
norms, the court should devise a mechanism which may be tested uniformly and with
reasonable care while allowing such discretion. For this, the court has developed a few
conditions and tests

1. Whether such amendment is necessary for the determination of real questions in

controversy. No amendment should be allowed when it doesn’t satisfy this cardinal
test if there is a mistake or omission by the party in bona fide or the suit is brought
under the wrong act, the amendment should be allowed.
 - Jay Jay Rammanohar v National Building Materials Suppliers AIR 1969 SC 1267

2. No amendment will be allowed which will cause injustice to the opposite party, which
can’t be compensated by costs (irreparable damage). The Court may allow an
amendment for the purpose of granting consequential relief on the basis of same cause
of action, which was amended by the party in their pleadings.

 A.K. Gupta and Sons Ltd. v Damodar Valley Corporation AIR 1967 S 96

Grounds of refusal for amendment of pleading application: (amendment of pleadings is a

discretionary power of the court, utilised judicially and must subscribe reasons for the same-

Gangabai v Vijay Kumar

The SC has held that the power to allow an amendment is a wide and discretionary power
governed judicial considerations and wider the discretion, greater ought to care and
circumspection on part of the court
(the court by using this may allow or refuse and amendment appl) )

1. Leave to amend will be refused when the amendment isn’t necessary for the purpose
of determining the real questions in controversy b/w the parties

2. Leave to amend will be refused if it introduces a totally different new and inconsistent
case or changes the fundamental character of the suit or defence

 Steward v North Metropolitan Tramway Companies

The real test while deciding is whether or not the party can amend its pleadings w/o placing
the other side in such a position that he cannot be recouped by way of allowance of costs or
otherwise.
This has been referred in-

A.K Gupta and Sons Ltd. v Damodar Valley Corporation

a. whether he can be recompensed
b. if allegation changed so substantially that he has to submit separate pleadings
[if above two met then it will be a new case]

3. Leave to amendment will be refused where the effect of proposed amendment is to

take away from the other side a legal right accrued in his favour

 Weldon v Neal, 1887

Referred in-

Pirgonda Patil v Kalgonda Patil AIR 1967 SC 363

The rule of amendment of pleading is to provide a just and reasonable ground to both the
parties and while allowing such amendment the Court should keep in mind the law of
limitation and other relevant factors in exercising its discretion.
 Charan Das v Amir Khan AIR 1921 PC 50
The power of the Court to amend a pleading cannot be disputed yet thee may be
circumstances where such considerations are outweighed by the special circumstances of the
case.

4. Leave to amend will be refused where the application for amendment is not made in
good faith

f)Patasi Bai v Ratanlal (1990) 2 SCC 42

After the application of amendment, the procedure:

1. once a trial court grants an application for amendment of pleadings through recoding
reasons for the same, a notice is to be served to the other party to raise an objection of
such nature which is legally valid and the other side is reqd to amend its pleading. But
if the amendment is purely formal or technical and doesn’t change the merits of the
case or circumstances, non-issuance of notice by the Court may not be termed as
violations of principles of natural justice.

Usha Devi v Rizwan Ahmed (2008) 3 SCC 717

Limitation period
No period of limitation prescribed under the law of limitation act would govern an appl
submitted u/r 17, order 6 as such applications may be moved ‘at any stage of pleadings’.
 MODULE 3: PLAINT AND WRITTEN STATEMENT

Rule 1-8 of order 7 talks about particulars of plaint

Rule 10-10b talks about return of plaint and appearance of parties
Rule 11-13 rejection of plaint
Rule 14-17 provisions related to production of documents

How to write uniform plaint despite diff facts and circumstances for each and every case:
- the CPC provides certain essential ingredients for the plaint, reqd to be mentioned in each
and every plaint
- helps defendant to draw up strategy in response and plaintiff to lay out their position

Particulars of plaint (rule 1-8) this order is followed in the plaint:

1. Name of the Court
2. Name and description and place of residence of the plaintiff
3. Name and description and place of residence of the defendant
4. If there is a suit brought by a minor or person of unsound mind- how to identify it is a
suit of this nature: the parties write a statement saying whether it is suit brought by
minor or on behalf of minor contested by someone as guardian, same w unsound mind
(contested by near friend or guardian)
- a statement stating the fact that the suit is contested on behalf of minor or person of
unsound mind
5. The facts constituting the cause of action arising in favour of the plaintiff
6. The statement jurisdiction of the Court
7. Valuation of the subject matter and corresponding court fees
8. Statement constituting the representative nature of the suit and the facts establishing
the conditions deemed essential for establishing a representative suit.
9. Statements showing or allowing set off on behalf of the plaintiff or statements
10. The facts showing or allowing the amount of set off on part of the plaintiff or the
amount relinquished by the plaintiff in the plaint itself
11. The nature of relief claimed by the plaintiff cumulatively or alternatively
12. If it is a suit in nature of recovery of money, the relief claimed would be so amended
that the exact amount of money will be claimed by the plaintiff
13. When there is a suit for possession of property and calculation of mean profits which
cannot be determined at the time of institution of suit, the approx. value or amount
would be claimed
14. If it’s a case for immovable property- identification of immovable property
- where the subject matter of the suit is immovable property, a description of the property
sufficient to identify it would have to be presented before the Court.
15. The nature of interest and liability of each defendant has to be sufficiently established
16. When the SUIT is time barred a statement or ground on which you are seeking an
exception from the court to entertain the suit will have to be presented in detail

(missing from 13th- 19th September)

Rule 1-5 and rules 7-10

 Special rules of defence: those types of defences and facts only brought by the
defendant but not brought up by the plaintiff. Eg- maintainability of suit, denial (but
mere denial may not be deemed sufficient, have to specifically deny)
  Rules:
1. New facts which are to be cited
- new facts pertaining to maintainability of suit or jurisdiction of the court or any
transaction being declared voidable or void may be brought up as a ground of defence by
the defendant, which if not raised at that time may not be allowed to be raised
subsequently. The effect of this rule is to require the party to tell the opponent what is he
coming w before the court to prove his case. If a party doesn’t raise this issue it may not
be allowed to be raised and it leaves the party at the mercy of the court.

- Union of India v Surjeet Singh AIR 1979 SC 1701

Case for the above point

2. The denial must be specific which means that each allegation of the fact as raised by
the defendant must be expressly denied or otherwise being deemed to have been
admitted.

Udhav Singh v Madhav Rao Sindia AIR 1917 SC

Case for above point

3. The denial must not be vague or evasive and the language used for denial must be
specific or explicit in its nature.

4. Every allegation of the fact in the plaint shall be taken to be not admitted if the
defendant choses to deny them but it doesn’t lead to automatic conclusive
circumstance and the court may emphasise upon the plaintiff to prove each allegation
w evidences

5. Written statement point????

1. Badar and Co. v Indian Trading Co.

The written statement must be dealt specifically and should include categorically each and
every allegation of fact raised in the plaint and when a defendant denies any such fact he
should deny the same in substance. IF the denial of the fact is not specific but evasive the said
fact shall be taken to be admitted. These rules form an integral part of the Court and the legal
consequences may flow in case of non-compliance. The allegation has to be set out
specifically in case of registering new facts on the part of the defendant before the court.

6. If the defendant relies upon distinct grounds of defence or brings the separate facts for
set off or counter claim, they should be stated separately and distinctly from other
parts of the pleadings.

7. Where the circumstances have changed after the institution of the suit giving a
separate ground of defence to the defendant, the court may take notice of such
circumstances or subsequent events. If there are new circumstances after filing of
plaint, the circumstances may be specifically included by the defendant in his
pleadings and the court may take notice of such subsequent events.

8. No new pleading or relief may be allowed in the written statement, apart from the set
off or counter claim by the court but the court may allow to draft a claim at the
discretion of the parties. [the court doesn’t have a say as to what is to be written]
 9. If the defendant fails to present his written statement within the time prescribed or
fixed by the court, the court shall pronounce the judgment against him or pass such
order in relation to the suit as it may deem fit.

I. Modula India v Kamakshia Singh Deo AIR 1989 SC 162

The SC has held in relation to rule 1,5,10 of order (?).
Rule 1 merely requires the defendant to present a written statement but if he fails to do so,
under rule 5(2), the court will remain in its lawful duty to pronounce the judgment on the
basis of the facts contained in the plaint and may ask the plaintiff to prove it alone, in absence
of any counter argument. There is nothing in these rules, which makes it mandatory for the
court to pass a decree in favour of the plaintiff straight away, merely on the ground that
written statement has not been filed.

Balraj Taneja v Sunil Madan (Imp) AIR 1999 SC 3381

The court is not supposed to act blindly upon the admission of a fact made by the defendant
in his written statement, nor should the court proceed to pass a judgment blindly, merely
because a written statement has not been filed by the defendant, traversing the facts set out by
the plaintiff filed in the court. Such a circumstance may be covered by the expression ‘The
Court may in its discretion require any such fact to be proved” while conclusively
determining the rights of the parties.

10. Special element.

Cross claim- the defendant acknowledges that the plaintiff has a claim but that the defendant
too has a claim arising out of the same cause of action against the plaintiff. Using the
outstanding amt to settle of the existing claim. Tries to settle of using his own claim. No prob
w the plaintiff’s claim but the court has to look into the claim of the defendant- if he had
brought it before the court, it would’ve been maintainable. The claim should be:
a. maintainable before the court at the time when it was brought (not barred by
limitation) (regular maintainable suit)
b. against the plaintiff w whom you are bringing the suit
c. It should be of certain specified sum of money not in lieu of certain rights. Only
claimed if there is recovery of money of a specified amt.

Set off is a cross claim which is intended to be brought by the defendant originally to off-set
the claim of the plaintiff. It referred to extinction of debts of which two persons are
reciprocally debtors to one another by the credits of which they are reciprocally creditors to
one another. Where there are mutual debts b/w the plaintiff and the defendant one may be
settled against the other. A plea of set off essentially is a plea whereby a defendant
acknowledges the justness of the plaintiff’s demand but sets up another demand of his own to
counter balance that of the plaintiff either in whole or in part.

Union of India v Karam Chand Thapar & Bros. Ltd (2004) 3 SCC 504.
(the above case)
COUNTER CLAIM
Counter claim is a claim made by the defendant in a suit against the plaintiff which is
independent of and separable from the plaintiff’s claim which may be enforced by a cross-
action. It is a cause of action arising in favour of the defendant against the plaintiff.
Therefore, it can be set up only in respect of a claim for which the defendant may file a
separate suit.

 Laxmi Das v Nanabhai AIR 1964 SC 11

[leading case on counter claims]
The SC observed that the question is on the principle as to whether there is anything in law,
statutory or otherwise, which precludes a court from treating a counter-claim as a plaint in the
cross suit. The Civil Procedure Code of CPC prescribes the contents of a claim and we
acknowledge that a counter claim brought by the defendant may not conform to all such
requirements of the plaint but this in itself is not sufficient to deny the court the power and
jurisdiction of constructing the pleadings in a reasonable manner. There could be no legal
objection traceable to the counter-claim for it being treated as a plaint and granting any such
relief to the defendant is otherwise open to the Court. To hold otherwise would be to erect
what in substance would be a mere defect in a form of pleading, making it an instrument for
denying what justice manifestly demands. [the last line suggests that there is nothing
tracebale in law that prohibits us from taking a cross-section. Can be rejected on grounds not
matching w all requirements of a plaint]

Objective of filing counter claim:

The provisions relating to counter claim seek to save the time of the court and are in sync w
the recommendations of the law commission of India, which extensively refers to avoiding
the multiplicity of proceedings. It is aimed at deciding all the disputes b/w the same parties
and avoiding unnecessary extension of judicial proceedings

Ramesh Chand v Anil Panjwani AIR 2003 SC 5208

(the above point)

What are the ways of setting up a counter claim?/ How to file it?
1. Through a written statement filed under Order 8 Rule 1
2. By amending written statement w the leave of the court
3. In a subsequent pleading under Order 8 Rule 9

A defendant may file a counter claim against a plaintiff but if a claim deals w a defendant
along w the plaintiff, the defendant may file a counter claim against the co-defendant but a
counter claim solely against a co-defendant is not maintainable.

Rohit Singh v State of Bihar

(the above point)

Difference b/w set off

Set off Counter claim
1. Statutory defence to the plaintiff’s Substantially a cross action suit
claim
2. Must be for an ascertained sum of Not reqd to arise out of same transaction
money or arising out of the same
transaction
3. Ground of defense utilised by the This is a weapon of offence to enforce a
defendant to afford an answer to the claim against the plaintiff w/o
 plaintiff’s claim in toto (in whole) or acknowledging the justness of the plaintiff’s
pro tanto (in proportion) demand.
4. In the case of set off, the amt must In the case of counter claim, legally
be legally recoverable at the date of recoverable at the date of filing the written
filing of suit. statement
5. When the defendant demands in a When there is a larger claim or the claim
plaintiff suit an amount below them exorbitantly exceeds the claim of the
or up to the claim of the plaintiff, it plaintiff, it may be referred as a counter
is referred as set off in stricto senso. claim.

[get the order and rules from someone]

The procedure u der order 11 says that the other party has the right to ask a set of questions as
interrogatory. Defendant is having a right to ask interrogatory from the plaintiff and the latter
has to reply to each of these questions.
Order 11 (?)
 To compel the opposite party to disclose what he has in his possession or power. It is
referred by a party to an action or facts or documents. it is a compulsory disclosure by
a party to an action or facts or documents on which the other side wishes to rely. After
the presentation of plaint or written statement, the settlement of issues take place after
which it becomes pertinent for the parties to rely upon the info associated w the facts.
If the info is not available directly before the court, the interested party is allowed to
put a series of questions to his adversary which are referred as interrogatories. The
answer to the interrogatory will compel the other side to reveal information on oath
before the trial, which is called discovery of facts.
 Interrogatories are covered from rules 1-11 of order 11
 Objects:
1. to know the exact nature of the case of the opponent
2. to support his own case either by a) directly obtaining admissions or b) indirectly
by destructing the case of the opponent.

Gangadevi v Krishnaprasad
This case was referred by SC in:

Raj Narain v Indira Gandhi, AIR 1972 SC 1302

The primary objective underlying this procedure of putting forth a bunch of questions to the
adversaries is to save expenses by enabling a party to obtain from his opponent information
as to material facts and to get his admissions on any matter in the suit which otherwise would
have to be proven by evidences and the same may not be available. This power of the Court
should be exercised liberally w/o being restricted by technicalities.

 Interrogatories may be administered by one party to the other party to the suit, which
means that both the plaintiff and the defendant have the right to seek responses to
interrogatories.
 The objection to the interrogatories may be filed by the parties on the ground of the
same being scandalous, irrelevant, mala fide, etc. (rule 6 of order 11)

 Rules as to interrogatories:
 1. Interrogatories may be administered in writing, w the permission of the court, subject
to any condition or limitation as may be imposed by the court
2. The particulars of the interrogatories proposed to be delivered should be submitted to
the court and the court has to decide on the interrogatories within 7 days of such
submission.
3. Interrogatories may be administered b/w a plaintiff and defendant in general
circumstances but it may also be administered by one defendant to another provided
that there is some question or issue b/w them in the suit or proceeding
4. No party may deliver one set of interrogatories to the other party w/o the order of the
court and more than one set may be allowed only in exceptional cases
5. No leave can be granted to the plaintiff to administer interrogatories until the time of
filing of written statement has expired and similarly a defendant may also not file
interrogatory until he files his written statement.
6. Interrogatories mat be administered to a guardian or next friend in case it is a suit
against minor or a person of unsound mind. And if against body corporations then the
answer to the interrogatories is to be provided by the officer in charge.
7. Interrogatories must relate to the matter in question in the suit
8. Interrogatories must be in relation to the question of fact and not as to conclusion of
law or inferences of facts or expression of opinions or construction of documents.
9. Interrogatories cannot be allowed or may be objected on the ground that they are
vexatious or irrelevant or are injurious to public interest, etc.
10. The cost of interrogatories shall be borne by the parties administering such
interrogatories
11. Any party at the trial of the suit may use as an evidence any part of the answer(s)
given by the party during interrogatories.
12. Where a person failed to comply w an order to answer interrogatories, his suit may be
dismissed if he is a plaintiff or his defence may be struck of if he is a defendant.
EX PARTE ORDERS AND DECREES
R1 and R 12
Rule 1 mandates the parties to appear before the court on the date of the summons which was
served upon the defendants.
Rule 12 mandates that someone who has been asked to appear in person doesn’t, or asked…..
(?) the court may dismiss the suit

R6 and R10- Plaintiff

R6 mandates that where the plaintiff appears and not D, the P has to prove service of
summons on the D and if it is proved that these were duly served, the court may proceed w
the matter ex parte against the D and may declare a decree in favour of the plaintiff if he
satisfactorily proves his case. This rule applies to first hearing alone and doesn’t per se apply
to subsequent hearings.
[applies only in case of first hearing]

Sangram Singh v Election Tribunal AIR 1955 SC 425

Situation where D doesn’t appear only P

R7-11: Defendant
Where the D appears and not P and D doesn’t admit to the claim of the P, the court shall
passs an order dismissing the suit, however, if the D admits to the claim of the P, wholly or
partly, then the court will pass a decree against the D upon such admission and dismiss the
suit for the rest of the claim.

Calcutta Port Trust v Shalimar Tar Product Ltd. AIR 1981 SC 684

Raja Devi Baksh v Habib Shah PC 1913

It is a serious matter to dismiss the plaintiff’s suit w/o hearing him and that course ought not
to be adopted unless the court is really satisfied that the justice so requires. But the Court has
no power to dismiss the suit where the plaintiff doesn’t appear owing to his death and the
same rule will be applicable upon the defendant as well.

R9
When the context of a party appears after ex parte decl, the court will look into whether there
is sufficient cause for non-appearance (not defined, left to discretion of the court).
Rule 9 precluded the P thereafter from filing a fresh suit on the same cause of action,
however, a party may apply to the court to set aside such dismissal up to the satisfaction of
the court that there existed a sufficient cause for his non-appearance and in such a scenario,
may fix a new date for the hearing of a suit. If sufficient cause is shown by P for non-
appearance, reopening of the matter becomes mandatory and Rule 9 becomes directory in
nature.

Lachi Tewari v Director of Land Records AIR 1984 SC 41

(for above point)

Sufficient cause depends upon the facts and circumstances of each case and a liberal and
generous construction should be adopted to advance the cause of justice and the restoration of
the suit shouldn’t ordinarily be denied. When a party arrives late and finds that his suit or
application has been dismissed, he is entitled to have his suit or application restored on the
payment of costs.

Chota Lal v Ambalal Hargovan 1925 Bombay HC- IMP

Currim Bhai v N.H. Moos 1929 Bombay HC

The court held that it would be diff to agree w the Chotalal judgment in principle as a settled
proposition of law. If a defendant wants to derail the suit proceedings, he may deliberately
not appear before the court and all he would have to do is come up on a successive date and
ask for restoration of the suit upon payment of costs, which would leave the justice at the
mercy of people who can uphold such payments.
This overruled the Chota Lal case.

If non appearance is due to non service of summons R2 and R 4:

It is a fundamental principle that a party must have a fair and reasonable opp to present his
case and for the same, he must have the knowledge of initiation of a legal proceeding against
him in a court of law. The same cane be facilitated through service of summons, which would
prescribe a date and the nature of proceedings for appearance.
Rule 2 of order 9 enacts that when such summons isn’t served, the suit may be dismissed, but
this will not be applicable if the D has appeared before the court even upon the failure of
delivery of summons. However, such dismissal shouldn’t be resorted to as a general principle
and the P may be given a sufficient time again for delivery of summons.
If the plaintiff fails to apply for a fresh summons within 7 days, from the date of return of the
previous summons, the court will dismiss the suit against the defendants.

Ex Parte Decree
Grounds of challenge:
1. Summons not duly served or failed to be served
– Not duly served: the standard procedure of summons is not followed [the different
points not mentioned or failed to be mentioned]
2. There existed a sufficient cause in favour of the defendant which prohibited or
restricted him for appearance in the court and due to this set aside the order of ex
parte

The language of the rule is plain, express and unambiguous and the grounds mentioned
therein (in the context of sufficient and good casue) are exhaustive, thought there may not be
a material difference b/w the two expressions, ‘sufficient cause’ and ‘good cause’.

G.P. Srivastav v R.K. Raizada, (2000) 3 SCC 54

(for the above point) and,
the sufficient cause for non-appearance refers to the date of absence which was made a
ground for proceeding ex party. If the sufficient cause is made out for the non-appearance of
the defendant on the date fixed for hearing when ex parte proceedings were initiated against
him, he cannot be penalised for any previous negligence, which was already condoned
earlier.

Whether the situation will change if the govt is appearing- court clarified that the sufficient
cause principle will apply to anybody, private or govt

In the context of sufficient cause, the major test is:

Whether the defendant honestly and sincerely intended to remain present when the suit was
called on for hearing and did his best to do so. If the answer is in affirmative, ex parte decree
or order should be set aside and if the answer is in negative, the ex parte decree cannot be
recalled.

UCO Bank v Iyengar Consultancy Services Pvt Ltd., (1994) Supp 2 SCC 399.

Missing?

 Order 10 covers aspect of first hearing- court normally begins trial of the suit by
asserting the actual proposition of facts, as well as the position of law.
 The meaning isn’t defined in the CPC

Siraj Ahmed v Premnath, AIR 1993 SC 2525

The date of first hearing of a suit is ordinarily understood to be the date on which the court
proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in
documents filed by them for the purpose of framing the issues to be decided in the suit.

 O10 R1-
 R2- the court will ensure that the appearance of the parties take place and in the
appearance mere silence must not be there and the parties must elaborate on the actual
position of facts.
  O10 R1 and 2 is connected w O14 R1. It is reqd that both these rules have a
conjunctive study.
 Materials used by court for framing the issue: explanation given by the parties (the
pleadings submitted) and also any document produced.
- Rule 3 O14:
1. allegations made on oath by the parties or the statements made by the pleaders
representing the parties.
2. allegations made out in the written pleadings or in answer to the interrogatories.
3. Docs presented by the parties before the court.

Hiralal v Badbulal, AIR 1953 SC 225

The court explained what can be the consequence of not framing proper issues.
If proper issues are not framed, the parties may move to the court and asking it to redraft the
issues in a language which is clear, unambiguous and relates to the actual controversy
brought before the court. The court while framing the issues has the right to examine the docs
presented, seeking a right of appearance of the parties or securing of oath from the parties.
The court also has the power to frame additional issues or strike out the existing issues, which
were alleged to be wrongly framed, by the parties.

Disposal of suit at the stage of first hearing- Order 15

Grounds:
1. where the parties are not at issue of question of law or fact
2. where the defendant admits to the claim of the plaintiff, the court may pronounce a
judgment or decree. Where there are two or more defendants and one of them agrees
to the claim of the plaintiff, a decree may be passed against him, and the suit may
proceed against the remaining defendant.
3. Where the summon has been served and either party fails w/o sufficient cause to
produce any evidence on which he originally relied upon.
4. Where a party or his pleader makes admission of such nature which is sufficient to
dispose off the case.
Case for these grounds:

Kundibai v Vishinjit Hotchand, 1977 judgment of Sind HC [AIR 1947 Sindh 105]
The judgment was referred by the SC in:

Hiralal v Kalyan Mal, AIR 1988 SC 618

 INTERIM ORDERS

 COMMISSIONER
Appointment of commissioner: Order 26 r/w s75-78
Commissioner is one who does the executive task on behalf of the court (not related to any
of the parties) of consolidating the docs, evidences and witnesses. Upon receiving
instructions from the court, he may: adjust accounts

Read what is commissioner and what he does from the book

Examination of witnesses by the commissioner

Rules 1-8 of order 26 r/w s 75-78
 Where a party requests a court to examine the witnesses produced by it at the time of
trial, the court is under duty to record their testimonies, however, any inability of a
witness to attend the court on the ground of sickness or infirmity or his appearance
may be detrimental to public interest, may justify the issue of commission for
examining such witnesses.
 The circumstances for examination of witnesses are :
1. if the person to be examined as a witness resides within the local limits of the
court’s jurisdiction and is a) exempted under the Court from attending the Court
or b) is suffering from a sickness or infirmity which precludes him from attending
the Court or c) in the interest of justice and for the expeditious disposal of the
case, it is deemed essential of examining such witnesses through commissions.
2. If he resides beyond the local limits of the jurisdiction of the court
3. He is about to leave the jurisdiction of the court.
4. If he is a govt servant and cannot, in the opinion of the court, attend the court w/o
detriment to public service
5. If he is residing out of India and the court believes that his evidence necessary
The court may issue such commissions either suo motu or on the appl of any party to the suit
or even on the appl of witnesses to be examined.
The evidence taken by the commissioner shall form part of the record.

Limitation of the usage:

1. A judicial function of the court cannot be delegated to a commission.
2. Further, the commission cannot be issued to value the prop in the dispute but
commission may help the court in gathering the data, which discovers the actual value
of the property.
3. A court is not duty bound to collect evidences for a party, neither is it supposed to
protect the party and hence, commission may not be appointed to seize the books of
accounts on mere allegation that the other party may tamper w it.

Evidentiary value of the report of commissions

 Reports of the commissioner would furnish prima facie evidence of the facts and data
collected by the commissioner which will constitute an imp piece of evidence in itself
and cannot be rejected, except on sufficient grounds.
 However, it is open to the court to determine how much value it would like to attach
w the report of such commission.
Case for above points:
  Tushar Kanti v Savitri Devi, AIR 1996 SC 2752
TEMPORARY INJUNCTION
11.10.18 missing
Order 1- 21: Stages of Civil Suit

order 3- appt of advocate (through vakalatnama)

order 4 r/w s26- institution of suit

court fees or stamp duty to process the appl before the court

order 10
s89 r/w order 10 rule 1A [refer for out of court settlement: ADR methods]
- different modes mentioned

order 12: admission of facts and documents

- whatever facts pleaded by one party is to be admitted by the other parties

order 13: documents

- court keeps the doc or gives for possession to some party

0rder 14: issues

refer IEA- defn for fact and issue in s3

order 16: summons are issued to witnesses

issue interrogatories to the list of witnesses which has already been forwarded to the parties.
- expenses looked after by the parties who have called them

order 18- plaintiff begins w the case then the def will give perspective then witness
statements

three stages of examination of witnesses:

1. examination in chief- the question sent before the answers to those are submitted in
court (submitted through affidavit)
2. cross examination- done by court or court appt commissioner
- examined first by the person called. The facts in favour, will ask those and take out
evidence in their favour

3. re examination- the other advocate examines him try to prove something to prove him
to be hostile
- leading questions are asked

order 19- affidavit

order 20- judgement

section 32- if a party doesn’t appear after summons, arrest or attach property

order 21- execution of decree [106 rules]

s2(2) defines decree-a formal statement of final adjudication. Conclusive determination of the
rights of the parties.
- suit starts from when instituted, gets over after judgement
- before it gets over, anything said in between is the order
- after the final hearing, evidence, etc., the court gives a determination and that is judgment
- decree is the operational part after the judgment . Final decree- issued after the judgement
- decree in between the suit: preliminary decree
- if the court for eg gives 5 out of 10 judgments, these will be called preliminary decrees
and judgment on final issues, that is final decree.
- Partly preliminary and partly final decree: 5 out of 10 issues decided byt the court and
these are so imp that you don’t need to go further w the suit. Then in this case it will be
party preliminary and partly final.
- The decree is executed and have to file appl in court for execution of decree

Execution of Decree
Substantive law: the function of substantive law if to define, create or confer substantive legal
rights or legal status or to impose and define the nature and extent of legal studies.
Procedural law: the function of procedural law is to provide the machinery or the manner in
which the legal rights, status or duties may be enforced or recognized by a court of law or any
others properly constituted tribunal.
History of Cpc

 Before 1859, no codified procedural law and the court used to decide the matter on
their own terms.
 Due to the mutiny of 1857, the crown introduced CPC in 1859 in the small causes
court and presidency courts.
 In 1877, CPC was largely amended and a new CPC was brought in.
 In 1882, again new CPC was introduced by making tremendous changes.
 Through common dialogue with Indians, new CPC in the year of 1908 was introduced
which was enforced on all courts. It was simplified version and provided for speedy
trials.
 In 1951, a minor amendment was made to make CPC more sort of Indian law.
 In 1976, CPC was further amended.
Objects of CPC 1908

 A litigant should get a fair trial in accordance with the accepted principles of natural
justice.
 Every effort should be made to expedite the disposal of civil suits and proceedings so
that justice may not be delayed.
 The procedure should not be complicated and should to the extent possible ensure a
fair deal to the poorest sections of the community who do not have the means to
engage a pleader to defend their cases.
Objects of amending CPC in 1976:

 Inclusion of doctrine of res judicata.

 Power to transfer proceedings from one high court to another high court is given to
Supreme Court. [jaylalitha Case, from Tamil Nadu to Karnataka]
 Freedom form attachment of a portion of salary to all salaried employees is granted.
 Provision of giving notice under §80 before the institution of the suit against the
government for a public office was made less stringent so as to facilitate justice
delivery.
 Restriction was imposed on the right of appeal and revision. Appeal is merely a
statutory provision.
 Provisions were made to ensure that written statement and documents are filed before
delay.
 Important changes were made to provide relief to poorer sections of the society.
Letters patent: an appeal can move laterally within one hierarchy court.
But even after this, a government report suggested that the average time taken for disposal is
5-6 years and cases are not fastly resolved. Under the chairmanship of Justice Mallimath, a
committee was formed which provided for the faster disposal of cases.
The Supreme Court even pointed out the same things in the case of Salem Bar Association I,
where SC focused that essential amendments are needed to be undertaken.
The amendments of 1999 and 2002 were implemented but a new scope was created through
grant of discretionary power to the judges for final say. The reason being the protest from the
advocates on genuine grounds of justice delivery and Salem II case.
Major amendments brought in through 1999-2002 amendments:

 In several matters such as issuance of summons, filing of written statement,

amendment of pleadings, production of documents and examination of witnesses a
time limit is prescribed. It was a matter of self imposed duty on the courts. A limit of
7 days was made but it was further diluted through the Salem II case and if there are
genuine grounds of delay, such delay could be accepted.
 A new provision for settlement of disputes outside the court has been introduced. Out
of the bounds of the court technicalities. The court may even appoint an appropriate
person for the settlement of the dispute outside the court and after the finality of the
settlement, the settlement has to be presented in the court and a decree would be issue
on those grounds so that any of the parties may not revert the matter back to the court
after some time.
 The number of adjournments has been restricted. Initially it was restricted to 3.
 A provision of recording the evidences by the court appointed commissioner was
introduced to save the time. Qualified to be a lawyer, is neutral to the matter and
knows the court procedure. Such person has to be submit the report of all his findings,
evidences and witnesses statements to the court and have to authenticate the evidences
produced in the court. After the dilution, the advocates can ask the court not to
appoint the commissioner and court may exercise discretion by not appointing the
commissioner.
 Endless arguments were aimed to be shortened by empowering the court to fix a time
limit on oral arguments and by permitting to place written arguments on record by the
parties. Ayodhya case, SC ordered the special CBI court to complete the hearing
within 2 years by limiting the arguments. Dilution: The court may fix and on the
ground of genuine issues the court may extend the pre-fixed time line. Therefore, no
rigid provision was placed.
 The scope of first appeal, second appeal, letters patent appeal and revision has been
curtailed. On what grounds the appeal is preferred, such grounds should be
exceptional and can the same question be raised before the appellate court. And even
if some argument is not presented in a lower court and such point is raised in the
appellate court, such arguments are restricted. Revision is only restricted to deal with
the error present in the existing judgment.
If any point is dealt by CPC, then CPC becomes exhaustive and have a greater say. In other
cases, provision of CPC may not be applied because if applied it can make the matters
complicated before such matters were deliberately not included in CPC so as to ease the
justice delivery. [The code of civil procedure is exhaustive on matters which are specifically
dealt by it but it is not exhaustive on those points which are not specifically dealt or intended
to be touched upon therein. Manohar Lal v. Seth Hiralal AIR 1962 SC 527].
Important definitions:

 Decree: the decree is defined under S 2(2) of CPC where it says that decree means the
formal expression of adjudication by the court which conclusively determines all or
any of the matters in controversy in the present suit which may either be preliminary
or final. It shall be deemed to include the order of rejection of a plaint but shall not
include- any adjudication from which an appeal lies as or in the form of an appeal
from an order (appealable order), any order of dismissal of suit for default.
Essential conditions of a decree:
o There must be adjudication: we essentially include judicial or quasi judicial
adjudication. For the purpose of decree, adjudication shall mean judicial
determination of the matter in dispute. Therefore, a decision on a matter of
administrative nature or an order dismissing the suit for default of appearance
by parties cannot be termed as a decree. Similarly and order passed by an
officer who is not a court or not vested with any kind of judicial power by law
is not a decree. [Deep Chand v. Land Acquisition Officer, AIR 1994 SC
1901]
o Such adjudication must be there in a suit. Suit is not defined in cpc. It was
defined in the case of Hansraj Gupta v. Official liquidators of Dehradun
mussoire electric tramway company lmt. [AIR 1933 PC 63] where the
court stated that, any court proceeding in cpc initiated by the presentation of a
plaint. The word suit ordinarily means a civil proceedings instituted by the
presentation of a plaint. Thus every suit has to be instituted by presenting a
plaint, and without being a suit, there cannot be a decree.
o Right of parties in controversy are to be determined: substantive rights and not
procedural rights. For any kind of procedural order, its merely a form of order
and not a decree. Such procedural rights would be exercised by submission of
certain applications. Whereas the substantive rights are determined through the
merit and subject matter of the case. The word rights, for this purpose
essentially means, substantive rights of the parties and not merely a procedural
right. [Dattatraya v. Radha Bai AIR 1921 Bom 220]. The substantive rights
of the parties, includes any rights relating to the status, jurisdiction, frame of
the suit etc. thus an order for dismissal of a suit for default of a appearance or
an order of refusing the leave to sue in informa pauperis etc. do not determine
the substantive rights of the parties and hence are not construed to be a decree.
In the conditions where procedural rights are even determined with substantive
right, such orders would even be called decree.
o Conclusive determination of rights: the court has finally decided one right in a
suit and that determination remains final remains final for the entire suit in that
particular court. If multiple rights are to be determined, determination of every
single rights would be called as decree even though all the rights may not be
determined at that stage. The determination must be final and conclusive as
regards to be court which passes it. [Narayan chandra v. Pratirodh Sahini].
An inter locutory order which does not decide the rights of parties finally like
refusal of adjournment etc. are not decrees because they do not lead to any
conclusive determination on merits of the case.
o Formal expression: there must be a formal expression of such adjudication
which means that all the requirements of the form or suit must be complied
 with and it must be deliberate in manner and should be according to the
procedure prescribed by the law. In case of formal expression it is the decree
which follows the judgment and must be drawn up separately. Shakultala
devi v. kuntal kumari. Operative order acts as judgment when multiple
decrees are passed before the actual judgment.
Order or decisions which are decrees:

 Order of abetment of suit: decision of legal ground regarding the fact that the parties
are having certain rights or not. Order of integration and disintegration of rights even
are called decrees. Decision on the merits of the case which carries the effect of
conclusive determination of right.
 Dismissal of appeal as time barred: the right of reaching to the court is exhausted and
therefore this decision acts as the conclusive document of the appeal. Therefore, the
original order of the lower court stands.
 Dismissal of suit or appeal for want of evidence or proof: these kind of matters and
cause of actions are mere claims as no evidence are produced. And this dismissal is
res judicata so that they the parties cannot go to court of the same level. Even such
decisions are being made on merits of the case, therefore it have the effect of a decree.
and this has an indirect effect on the other party as this order allows the defendants to
continue to do whatever they were doing before this suit.
 Order holding appeal not maintainable: the decision of lower court stand and the
parties are directed to do whatever they were doing. Indirect conclusive decision on
the rights of the parties.
 Order holding that right to sue does not arise: as it mere statutory right
 Order holding that there is no cause of action:
 Order refusing one of the several reliefs: the reliefs which are rejected cannot be
raised in court again and therefore such decision is also final.
Decisions which are not decrees:

 Dismissal of appeal for default: no merit of the cases discussed. But ex parte decisions
are decrees.
 Appointment of commissioner to take accounts: mere collection of evidences. Subject
matter of the suit is not in any way being decided. Just the submission of report
regarding his studies.
 Return of plaint for presentation to a proper court:
 Rejection of application for Condonation of delay: it not the discussion of the merit of
the case.
 Order directing assessment of mesne profits.
Preliminary decree and final decree
A preliminary decree is one which declares the rights and liabilities of the parties leaving the
actual result to be worked out in further proceedings as a result of inquiries conducted
pursuant to the preliminary decree, the rights of the parties would then be fully determined
and a decree is passed in accordance with such determination which is final. Both the decrees
has to be in the same suit. A final decree may said to be final in two ways: 1. When the time
for appeal has expired without any appeal being filed against the preliminary decree or the
matter has been decided by the highest court 2. When the time for appeal has expired without
any appeal being filed against the preliminary decree and the matter stands completely
disposed of. [Shankar v. Chandrakant AIR 1995 SC 1211].
Preliminary decree: when an adjudication decides the rights and liabilities of the parties with
regard to all or any of the matters in controversy in this suit but does not completely dispose
of the suit, it is called as preliminary decree. it is only a stage in working out the rights of the
parties which are to be finally adjudicated by a final decree and till then the suit continues.
[Mool Chand v. Director, Consolidation AIR 1995 SC 2493]
The cpc provides for passing of preliminary decrees in following circumstance:

 Suits for possession and mesne profits, order 20 rule 12

 Suit for dissolution of partnership, order 20 rule 15
 Suit for partition and separate possession, order 20 rule 18
 Suits for sale of mortgaged property, order 34 rule 4 and 5
 Suit for redemption of a mortgage, order 34 rule 7 and 8. A court may pass a
preliminary in cases not expressly provided by CPC.
Situation where multiple preliminary decrees can be passes: e.g. 1 st and 3rd from above list.
Phool chand v. Gopal lal [AIR 1967 SC 1470] there is nothing in cpc which prohibits
passing of more than one preliminary decree if the circumstances justify the same and it may
be necessary for the court to do so. Limitation: but the above observation is restricted to
partition suits alone. Later on, the limitation was lifted and now it all depends on the
discretion of the Court which may decide it on the facts and circumstances.
Final decree: final decree is said to be final in two ways:
1. when within the prescribed period, no appeal is filed against the decree or the matter has
been decided by the highest court.
2. when the decree, so far as regards to the court passing it, completely disposes of the suit.
[Shankar v. Chandrakant 1995 3 SCC 413]
There can be more than one final decree. but it may defeat the essence of Cpc as multiple
appeals has to be made for multiple decrees, as it may make the procedure slow.
1. Gulsum Bivi v. Ahmadasa Rowther, AiR 1919 Mad 998: order 20, rule 12 and 18 was
challenged, the court held that: neither of these rules contemplates more than one preliminary
decree and one final decree in one suit. The cpc nowhere contemplates more than one final
decree in one suit. To have two final decrees and to call one decree final or the first one as the
final decree will be a misnomer as it will not be final.(disabling interpretations)
2. Kasi V. Ram Nathan Chettiar 1947 2 MLJ 523: the court observed that the question is
not whether cpc allows more than one preliminary decree or one final decree to be made but
whether the code contains a prohibition against the court in a proper case passing more than
one such decrees and the court took a divergent view and held that there could be more than
one preliminary and one final decree in a suit. (Negative Interpretation) (enabling
interpretation)
3. Shankar v. Chandrakant AIR 1995 SC 1211: it is a settled law that more than final
decree can be passed.
Partly preliminary and party final decree
A decree may be partly preliminary and partly final like in a suit for possession of immovable
property with mesne profits where the court,
1. decrees the possession of the property
2. directs an enquiry into the mesne profits
The former part of decree is final whereas the latter part is preliminary.
Rejection and return of Plaint: There is always jurisdiction remains in the court. It have the
nature of decree. Section 2(2) specifically provides that rejection of plaint shall be deemed to
be a decree whereas an order returning a plaint or memorandum of appeal to be presented to
proper court will not be a decree. the reason is that such an order does not negate any rights
of the plaintiff or appellant in any manner and therefore it cannot be termed as a decision
relating to the matters in controversy in the suit.
Restitution: only if it is demanded as a right or demanded as a relief. Determination of any
question under Section 144 or within its meaning is termed as restitution and is included
within the meaning of decree for the purpose of giving the right to appeal only under the
circumstances where it leads to the adjudication on the aspects of the rights in the
controversy. Otherwise if it is neither made in a suit nor is asked as a matter of right then it
will not be termed as a part of decree.
Appealable orders: an adjudication from which an appeal lies just like an appeal from or
against a decree are termed as appealable orders e.g. orders like returning plaint for
presentation to a proper court or rejecting an application to set aside an ex parte decree or an
order rejecting an application for permission to sue as an indigent person are called as
appealable order and not decrees. The distinction between a decree and an appealable order
lies in the fact that in case of a decree second appeal lies in certain cases whereas for an
appealable order there is no provision for second appeal.
Judge: it means the presiding officer of a civil court. Although the term court has not been
defined in CPC, it can commonly be referred as assembly of judges or other persons acting as
a tribunal in civil or criminal cases where the justice is judicially administered. [E. D.
Sinclair v. L.P.D Brougton]
Judgment: Section 2(9), it means the statement given by a judge of the grounds of a decree
or an order. It is more sort of universal nature. Essential elements of judgment:

 The essential elements of a judgment is that there should be a statement laying down
the grounds of the decision. [Vidya Charan Shukla v. Khub Chand Baghel, AIR
1964 SC 1099]
 Every judgment other than that of small causes court should contain
o A concise statement of the case;
o Points of consideration;
o The decision thereon;
o The reasons for the decisions.

Balraj Taneja v. Sunil Madan AIR 1999 SC 3381: a judge cannot merely say ‘suit decreed
or suit dismissed.’ The whole process of reasoning has to be set out for deciding the case one
way or the other. Even the small causes court judgments must be intelligible and must show
that the judge has applied his mind. The judgment need not be on all the issues in a case and
may even be on a preliminary issue itself.
Distinction between judgment and decree:

 A judgment is the statement given by the judge laying down the grounds of a decree.
Whereas decree is the enforcement of the rights developed on the basis of the
reasoning pronounced in the judgment.
 It is not necessary that there should be a formal expression of every order in the
judgment though it is desirable. Whereas for a decree it essentially has to be a formal
expression.
 A judgment has to include precisely the relief granted, rule 6-A of order 20 inserted
by 1976 amendment.
Order: order means the formal expression of any decision by the civil court which is not a
decree. section 2(14).
Order is also a formal expression. Order may also include a determination by the court on a
specific issue and even decide the rights of the parties. But it does not pronounce the
conclusive determination. As a general rule an order of a court of law is based on objective
considerations and may contain a discussion of the question at issue and the reasons which
prevailed within the court which lead to the passing of the order.
Similarities between order and decree:

 Both relates to matters in controversy

 Both are the decision given by the court.
 Both are judicial adjudication pronounced by the court
 Both are formally expression of a decision.
The difference between order and decree:

 A decree can only be passed in a suit or civil proceedings which commenced with
presentation of a plaint whereas and order may originate even from a proceeding
which commenced through an application.
 A decree is an adjudication conclusively determining the rights of the parities with
regard to all or any of the matter sin controversy. Whereas the order may or may lead
to an conclusive determination of any such right.
 A decree may be preliminary or final or partly preliminary or partly final whereas
there cannot be a preliminary order.
 Except in certain suits, mostly, a suit will have two decrees, one preliminary and one
final or may even have a single final decree. within civil suit or proceeding depeding
on the number of applications, there can be multiple orders.
 Every decree is appealable unless otherwise expressly provided. Only those orders for
which a provision for appeal is mentioned in CPC are appealable.
 A second appeal lies to the high court on certain grounds from the decree passed on
first appeal. No second appeal is allowed even in case of appealable orders.
Decree holder: Any person in whose favor a decree has been passed or an order capable of
execution has been made is called decree holder. Section 2(3). Decree holder need not
necessarily be a plaintiff.
Judgment debtor: any person against whom a decree has been passed or an order capable of
execution has been made. Section 2(10).
Foreign court: foreign court means a court situated outside india and not established or
continued by the authority of central government. E.g. Pondicherry in 1908.
Legal representative: legal representative means a person who in law represents the estate
of a deceased person and includes any person who intermeddles with the estate of the
deceased person and where a party sues or is sued in a representative character, the person on
whom the estate devolves on the death of the party so suing or sued.
Decree and legal documents are even part of estate. So it is transferable asset and can be a
responsibility even.
Mesne Profits: mesne profits means those profits which the person in wrongful possession of
such property actually received or might with ordinary diligence have received together with
interest on such profits but shall not include profits due to improvements made by the person
in such wrongful possession. Section 2(12)
Object of mesne profits: every person has a right to possess his property and when he is
deprived of such possession, he is not only entitled to the restoration of such possession but
also damages on account of such wrongful possession. Thus the object of decree for mesne
profits si to compensate the person who has been kept out of possession of his property and
has been deprived of his right of peaceful enjoyment of his property even though he was
entitled to such possession thereof. [Lucy Kochuvareed v. P. Mariappa Gounder AIR
1979 SC 1214]
Criterion for Assessment of Mesne Profits: a person who is in wrongful possession and
enjoyment of immovable property is liable for mesne profits. Where the owner or plaintiff is
dispossessed by several persons every one of them would be liable to pay mesne profits even
though they might not be in actual possession or the profits have not been received by them.
In such cases the court may hold all the possessors jointly and severally liable leaving them to
have their rights adjusted in a separate suit for contribution or within the same suit through
division of liability among each of them.
Mesne profits are in the nature of damages and while assessing the mesne profits the court
usually take into account what the defendant has gained or reasonably might have gained by
his wrongful possession of the property. The court may decide the mesne profits according to
the facts and circumstances. [Fateh Chand v. Balkishan das AIR 1963 SC 1405].
The test to ascertain mesne profits is not what the plaintiff has lost by being out of possession
but what the defendant has gained or might reasonably with ordinary prudence have gained
by such wrongful possession. [Marshall Sons & Co. v. Sahi oritrans Pvt, Ltd. AIR 1999
SC 882]
Principles for calculation mesne profits:

 No profits by a person in wrongful possession.

 Restoration of status before dispossession of decree holder.
 Use to which a decree holder would have put the property if he himself was in
possession.
Interest over mesne profits: interest is an integral part of mesne profits which has to be
allowed in computation of mesne profits itself. the rate of interest allowed over mesne profits
shall not exceed 6% per annum and such interest can be allowed till the date of final payment.
[Mahant Narayan Das ji v. Tiruumalai Tirupati Devasthanan AIR 1965 SC 1231].
Affidavit: it is a declaration of facts reduced to writing and affirmed or sworn before an
officer having authority to administer oaths. It should be drawn up in first person and should
contain statements and not inferences.
Cause of Action: bundle of essential facts which are necessary for the plaintiff to prove
before he can succeed. It is an antecedent to the suit and if the plaint fails to disclose the
cause of action, the court will reject such plaint.
Caveat: caveat is an official request that a court should not take a particular action without
issuing notice to the party lodging the caveat and without affording an opportunity of hearing
them. Going to the court before the other party approaches.
Plaint: a plaint is a statement of claim, a document or a memorial by the presentation of
which a suit is instituted. It contains the grounds on which the assistance of the court is
sought by a plaintiff and also referred to as the pleadings of the plaintiff.
Summons: it is a document issued from the office of a court calling upon the person to
whom it is directed to attend before a judge or an officer of the court for a certain purpose. It
is a written order that legally obligates someone to attend a court of law at a specified date.
Written statement: it is considered as a reply of the defendant against the plaint filed by the
plaintiff. It is referred as pleading of the defendant dealing with every material fact raised in
the plaint. It may also contain new facts discussed which are in favor of defendant or legal
obligations against the claims of a plaintiff brought before the court.
Jurisdiction of the court: a litigant having grievance of civil nature has a right to institute a
civil suit in a competent civil court unless its cognizance is either expressly or impliedly
barred by any statute. [Abdul Waheed Khan v. Bhanwani AIR 1966 SC 1718]. A suit for
its maintainability requires no authority of law and it is enough that no statute bars it. [Ganga
Bai v. Vijay Kumar AIR 1974 SC 1126]. The court cannot confer jurisdiction to itself, it is
only in the power of the legislature to decide the jurisdiction of the judiciary. Any decree
passed without jurisdiction is null in eyes of law. Consent to fix the jurisdiction of an
empowered court is valid.
Jurisdiction means the power or authority of a court of law to hear and determine a cause or
a matter. It is the power to entertain and decide a suit or civil proceeding.
In the case of Official Trustee v. Sachindra Nath AIR 1969 SC 823, the court held that a
court must not only have jurisdiction to try the suit brought but must also have the authority
to pass the order sought for. Jurisdiction must include power to hear and decide the question
at issue and decide the particular controversy that has arisen between the parties. if the court
cannot pass the relief prayed for, then the court do not possess the jurisdiction to adjudicate
the case.
Jurisdiction and consent: [A R Antulay v. R S Nayak AIR 1988 SC 1531], the power to
create and enlarge jurisdiction is legislative in character and so also the power to confer a
right of appeal or could take away the right of appeal. No court whether superior or inferior
or both combined can enlarge the jurisdiction of a court or divest a person of his rights of
revision and appeal.
Hirendra Nath v. Sudhir Verma AIR 1964 SC 1300: if the court has no inherent
jurisdiction neither acquiescence nor waiver nor estoppel can create it. Such a basic and
fundamental defeat cannot be cured by consent of parties or by the judgment or order passed
by a court. The decree so passed is null and void and can be challenged at any stage.
The court cannot create jurisdiction but can enlarge it. Interpretation of jurisdiction is allowed
but conferring jurisdiction on itself is not allowed.
Kiran singh v chaman Paswan AIR 1954 SC 340: it is a fundamental principle well
established that a decree passed by a court without jurisdiction is a nullity and that its
invalidity could be setup whenever and wherever it is sought to be enforced or relied upon.
Even at the stage of execution and even in collateral proceedings. A defect of jurisdiction
strikes at the very authority of the court to pass any decree and such a defect cannot be cured
by consent of parties.
Jurisdiction of a court is a public policy and passed by the parliament and therefore
individuals cannot decide the jurisdiction in their private capacity.
Lack of jurisdiction and irregular exercise of jurisdiction: there is always a distinction
between want of jurisdiction and irregular exercise of jurisdiction. Once it is held that a court
has the jurisdiction to decide a matter and to entertain it, the correctness of the decision given
cannot be said to be without jurisdiction in as much as the power to decide necessarily carries
with it the power to decide wrongly as well as rightly. [Ujjam Bai v. State of UP AIR 1962
SC 1621]. If a court has the jurisdiction but it is irregularly exercised and the defect does not
go to the root of the matter and the error if any in exercising the jurisdiction can be remedied
in appeal or revision and when there is no such remedy or is not availed of then the decision
is final.
Ittyavira Mathai v. Varkey AIR 1964 SC 907: the contention was that the decree passed by
the court is nullity as the suit was time barred and the court did not take into cognizance of
this fact so there was lack of jurisdiction. If the party aggrieved does not take appropriate
steps to have the error corrected, the erroneous decree will hold good and will not be open to
challenge on the basis of it being a nullity. It is regular exercise of jurisdiction and as no steps
were taken by the aggrieved party, no remedy available.
In the case of Anisminic Limited v. foreign compensation commission 1969 (1) All ER
208, the difference between these two terms is being assimilated.
M L Sethi v. R P Kapur 1972 2 SCC 427, after anisminic case, every error of law is a
jurisdictional error. The distinction between jurisdictional and non jurisdictional error is
based upon a foundation of sand. Much of the superstructure has already crumbled. What
remains is likely to quickly fall away as the courts rightly insist that all administrative actions
should be simply lawful whether or not jurisdictionally lawful.
Basis of deciding a jurisdiction: the court goes by the decision of the jurisdiction only on
the facts mentioned in the plaint. If the plaint is not clear, the court will see that if the written
statement contains any legal objection regarding the jurisdiction. It is a well settled principle
that for deciding the jurisdiction of the civil court, the averments made in the plaint are
material or the jurisdiction of the court should normally be decided on the basis of the case
put forward by the plaintiff in his plaint and not by the defendant in his written statement.
Abdullah bin Ali v. Galappa AIR 1985 SC 577, the supreme court observed that there is no
denying to the fact that the allegations made in the plaint decide the forum. The jurisdiction
does not depend upon the defence taken by the defendants in their written statements.
Bank of baroda v. motibai AIR 1985 SC 545: on the question of jurisdiction one must
always have regard to the substance of the matter and not to the form of the suit. The way in
which suit is brought is not relevant.
Section 9 of cpc: jurisdiction
Kinds of jurisdiction:

 Civil and criminal jurisdiction: ancient, civil deals with the private rights of the
individuals.
 Territorial or local jurisdiction: where is the particular court which hears the
particular type of matter. On the basis of limited geographical limit, certain courts
would be established who would entertain matters pertaining to that geographical
area. Every court has its own local or territorial limits beyond which it cannot exercise
its jurisdiction. These limits are fixed by the legislature or government. The district
has the authority to exercise the jurisdiction within a district, the high court has the
authority within the state where it is situated or any other territory vested to it by law.
A court has no jurisdiction to try a suit for immovable property situated beyond its
local limit.
 Pecuniary jurisdiction: cpc provides a court will have jurisdiction only over those
suits the amount of value of the subject matter of which does not exceed the pecuniary
limits of its jurisdiction. There are certain courts without any pecuniary limit and
other categories may have a pecuniary limit.
 Subject matter jurisdiction: prevalent form of jurisdiction: different courts have
been empowered to decide different types of suits. Certain courts are precluded from
entertaining a certain category of suits. For e.g. presidency courts have no jurisdiction
to try suits for specific performance because specific performance may not preclude
any specific Act.
 Original and appellate jurisdiction: original jurisdiction is the jurisdiction inherent
or conferred upon a court of first instance. Appellate jurisdiction is the power or
authority conferred upon a superior court to rehear by way of appeal of revision of
matters which have been tried and decided by the courts of original jurisdiction.
 Exclusive and concurrent jurisdiction: exclusive jurisdiction is that which confers
sole power on one court or tribunal to try and decide a case. Concurrent jurisdiction is
the jurisdiction which may be exercised by different courts or authorities between the
same parties at the same time over the same subject matter and the option is present to
a litigant to invoke jurisdiction of any such court.
 Legal and equitable jurisdiction: Legal jurisdiction is a jurisdiction exercised by the
common law courts in England while equitable jurisdiction is exercised by court of
equity. In india, the courts are of both law and equity.
Jurisdiction of a civil court:
Section 9, the courts shall have jurisdiction to try all the civil suits of the civil nature
excepting suits of which the cognizance is either expressly or impliedly barred.
Explanation 1: from the inception
Explanation 2: inserted through amendment in 1976.
The conditions of section 9: court have jurisdiction subject to two conditions:

 The suit must be of civil nature: it pertains to private rights and remedies of a citizen
as distinguished from criminal political or religious matter. Thus a suit is of civil
nature, if the principle question therein relates to the determination of a civil right and
enforcement thereof. Political and religious questions are not covered by this
expression. E.g. a suit which the principle question of a caste or religion is not of civil
nature but if the principle question is of civil nature and it incidentally carries the
question of caste and religious rights, it does not cease to be a suit of civil nature and
the jurisdiction of the civil court is not barred. [P M A Metropolitan v. Moran Mar
Marthoma AIR 1995 SC 2001]. In this case, it was held that the civil suits related to
the matter that the jurisdiction of a court is presumed if it entails within a question of
private right or obligation. No court can refuse to entertain such matters if the
cognizance is not barred. The section 9 would therefore be available in every case
where the dispute was of the characteristic of affecting one’s rights which are not only
civil but of civil nature. All the rights may be civil but not of civil nature.
Constitutional matter, political matter and religious matters are even civil matters but
not of civil nature as they are the elements of public policies.
 The cognizance must have been barred either expressly or impliedly
o Suits expressly barred: a suit is said to be expressly barred when it is barred by
any enactment for the time being in force. It is open to a competent legislature
to bar jurisdiction of civil court with respect to a particular class of suits of
civil nature provided that in doing so it keeps itself within the field of
legislation conferred on it and does not contravene any provision of the
constitution. [State of Vindhya Pradesh v. Moradhwaj Singh AIR 1960 SC
796]. This provision is also related to the concept of doctrine of separation of
powers. Every presumption should be made in favor of the jurisdiction of a
civil court and the provision of exclusion of jurisdiction must be strictly
construed. If there is any doubt about the ousting of jurisdiction of a civil
court, the court will lean to an interpretation which would maintain the
jurisdiction. [Dhula Bhai v. State of M P AIR 1969 SC 78 and Bharat kala
Bhandar Pvt. Ltd. v. Municipal Committee Dhaman Gaon AIR 1966 SC
249]. Further, if the remedy provided by the statute is not adequate and all
questions cannot be decided by the special tribunal, the jurisdiction of a civil
court is not said to be barred. [State of Tamil Nadu v. Ramlinga Samigal
AIR 1986 SC 794].
o Implied Bar: a suit is said to be impliedly barred when it is barred by general
principles of law. Where a specific remedy is there given by a statute, it
thereby deprives the person who insists upon a remedy of any other form than
that given by the statute. [Premier Automobiles v. Kamleker Shantaram
AIR 1975 SC 2238]. In this case, it was also held that where an act creates an
obligation or enforces its performance in a specified manner, that performance
cannot be enforced in any other manner. Certain suits, even if of being a civil
nature, the cognizance may be barred by the civil court on the basis of public
policy. [Indian Airlines Corp. v. Sukhdev rao AIR 1971 SC 1828]. The
civil courts has no jurisdiction to adjudicate or enlarge its mandate to take up
the relief sought of any other nature and thereby it acts as an implied bar over
such types of relief.
Suits of civil nature are

 Suits relating to the rights to property;

 Suits relating to taking out of religious procession;
 Suits relating to shares in offerings;
 Suit relating to specific performance of contract or damages for breach of contract;
 Suits for restitution of conjugal rights and dissolution of marriage;
 Suits relating to rights to franchise;
 Suits for rents;
 Suits for accounts.
Suits which are not of civil nature

 Suits involving principally caste questions;

 Suits involving purely religious rights and ceremonies;
 Suits for recovery of voluntary payments or offerings;
 Suits against expulsions from caste.
Objection as to exclusion of the jurisdiction of the civil court: a litigant having a grievance
of civil nature has independent of any statute a right to institute a suit in a civil court unless
its cognizance is either expressly or impliedly barred. The exclusion of jurisdiction of civil
court is not to be readily inferred and such exclusions have to be proved beyond reasonable
doubts in order to establish the objection as to jurisdiction. [Dhula Bhai v State of MP AIR
1969 SC 78].
1. Secretary of State v. Mask and co. AIR 1940 PC 105: it was held that it is settled law
that exclusion of jurisdiction of civil courts is not to be readily inferred but that such
exclusion must either be explicitly expressed or clearly implied. It is also well established
that even if such jurisdiciiton is so excluded, the civil courts will have jurisdiction to examine
into the cases where the provisions of the act have not been complied with or the statutory
tribunal has not acted in conformity with the fundamental principles of judicial procedure.
2. seth Radhakrishan v. Administrator Municipal Committee, Ludhiana AIR 1963 SC
1547: a suit in a civil court will always lay to question the order of a tribunal created by a
statute even if its order is expressly or by necessary implications made final, if the said
tribunal abuses its power or does not act under the Act, but in violation of its provision.
3. Dhula Bhai v. State of MP (justice hidaytullah):
Principles laid down as to the exclusion of the jurisdiction;

 Where a statute gives finality to orders of special tribunals, the civil court’s
jurisdiction must be held to be excluded if there is adequate remedy to do what the
civil courts would normally do in a suit. Such a provision however does not exclude
those cases where the provisions of a particular Act have not been complied with or
the statutory tribunal has not acted in conformity with the established principles of
judicial procedure.
 Where there is an express bar on the jurisdiction of the court, an examination of the
scheme of the Act to find out the adequacy or sufficiency of the remedies provided
may be relevant but this is not decisive for sustaining the jurisdiction of a civil court.
The reason being that where there is no express exclusion, the examination of the
 remedies and schemes of the particular act and the enquiry laid within to analyze so
may be decisive for the purpose of exclusive of jurisdiction.
 Challenges to the provisions of a particular Act as ultra vires cannot be brought before
tribunals constituted under that Act. Even the high court cannot go into that question
being brought in form of revision or reference against such tribunals.
 When a provision is already declared unconstitutional or the constitutionality of any
provision is to be challenged, a suit is always open. A writ of certiorari may include a
direction for refund of claims if the claim is clearly within the purview of the Act but
it is not a compulsory remedy to replace the suit.
 Where the particular Act contains no machinery for refund of tax collected in excess
of the constitutional limits or is illegally collected, a suit lies.
 Questions of correctness of an assessment cannot be brought through a civil suit if the
Act lays down them to be final and binding or there is an express prohibition under
the particular itself making such suits not maintainable.
 An exclusion of jurisdiction of civil court is not supposed to be readily inferred unless
the conditions above said are applicable to the case or a particular situation.
Another important case is premier Automobiles V. Kamleker Shantaram, it is related to
issue of industrial dispute and issue of conflict of jurisdiction with the civil court

 If a dispute is not an industrial dispute nor does it relates to enforcement of any

right, under the statute or any Act, then the remedy in the civil court.
 If a dispute is an industrial dispute, arising out of a right or liability under the
general or common law, and not under the Act , the jurisdiction of civil court is
alternative, leaving it to the selection of the suitor or person concerned to choose
his remedy for the relief which is competent to be granted in the particular
situation.
 If an industrial dispute relates to the enforcement of a right or an obligation
created under the Act, then the only remedy available to the suitor is to get
adjudication under the Act itself.
 If the right which is sought to be enforced is a right created under the Act such as
Chapter V-A then the remedy for its enforcement is either Section 33-C or the
raising of an industrial dispute, as the case may be.
Rsrtc v. krishna kant AIR 1995 SC 1715:

 Where a dispute arises from the general law of contract that is where releifs are
claimed on the claimed on the basis of obligations arising out of such contract may
not be said to be maintainable in the civil courts even if such disputes constitute
industrial dispute within the meaning of section 2(k) of IT Act.
 Where a dispute involves recognition or observance of any rights or obligations
created by the Act, the only remedy is to approach the adjudication forum established
under such Act.
 Where the dispute involves the recognition of rights and obligations of the sister
enactment to the major law enforced which may not provide a separate adjudication
forum for redressal of disputes, the only remedy shall be to approach the forums
created by the major laws, whether the major right is not sought to be enforced
through the major law.
 The power to make reference conferred upon the central government is to be
exercised to effectuate the object of the enactment and hence such discretion is not
 unguided. The purpose of this referential rule is to avoid totally frivolous cases on the
face of the record otherwise the power conferred to make a reference is not the power
to make a decision. Though it is observed that government is entitled to examine
whether a matter is frivolous not meriting adjudication.
 The policy going in consistence with the policy of law, the SC has observed that the
parliament should make an enabling provision to enable workman to approach labour
courts without the prior sanction of the government as this would go in a long way to
establish parity between civil courts and the labour courts.
 The policy of law emerging from the industrial Act and their sister enactmensts is to
provide alternative dispute resolution provision which is speedy, inexpensive,
informal and unencumbered by the plethora of procedural laws and at the same time
are far more extensive in the sense that they can grant any relief which they deem fit
and appropriate in a given situation in order to provide substantial justice.
In the further case of Chandrakant v. Municipal Corp of Ahmadabad 2002 2 SCC 542, it
was held that the power of industrial courts is wide enough and such forums are entitled to
grant adequate relief as they think just and appropriate. It is in the interest of the workman
that their disputes including the disputes of illegal termination are adjudicated upon by an
industrial forum.
Doctrine of res subjudice (Section 10): section 10 deal with the stay of civil suits. It
provides that no court shall proceed with the trial of any suit in which the matter in issue is
directly and substantially in issue with a previously instituted suit between the same parties
and that the court in which the previous suit is pending, is competent to grant the relief
claimed.
Doctrine of res judicata: Section 11 on the other hand related to a matter already
adjudicated upon. It bars the trial of a suit or an issue in which the matter directly and
substantially in issue has already been adjudicated upon in a previous suit.
Two pillars of doctrine of res subjudice

 The matter is directly and substantially in issue;

 The court in which the matter is previously challenged was a competent forum.
Scope of Section 10: the rule of section 10 applies to a trial of a suit and not the institution
thereof. It also does not preclude a court from passing interim order such as grant of
injunction, stay or appointment of receiver etc.
Object of section 10: the object of section 10 is to prevent courts of concurrent jurisdiction
from simultaneously entertaining and adjudicating upon two parallel litigations in respect of
the same cause of action, the same subject matter and the same relief sought. The policy of
law is to avoid two contradictory judgments or possibility of two contradictory judgments on
the same issue with same sort of relief in order to avoid the harassment of the parties and
avoid the conflict of decision from the courts. The doctrine of sub judice bars the trial of the
suit and not the institution thereof. If a judgment has been received by the court the
subsequent suit may be dismissed by this court in which it was it instituted may dismiss the
suit thereof. [National Institute of Medical Health and Neuroscience v. C parmeshawara
AIR 2005 SC 242]
Condition for application for section 10:
 There should be two suits one previously instituted and the latter subsequently
instituted.
 The matter in issue in the subsequent unit or subsequent suit must be directly and
substantially in issue in the previous suit.
 Both the suits must be between the same parties or between their representatives.
 The previously instituted suit must be pending in the same court in which the
subsequent suit is brought or in any other court in India or in any other court beyond
the limits of India but carried on by the authority of Central Government or they have
been before the Supreme Court of India.
 The court in which the previous suit is instituted must have the jurisdiction to grant
the relief claimed in the subsequent suit.
 Such parties must be litigating under the same title in both the suits.
The court is having the jurisdiction therefore institution is not barred, only the trial is barred
Section 10 does not take away the power of the court to examine the matters on merits. If the
court is satisfied that subsequent suits can be decided purely on a legal point, it is open to the
court to decide such suit. [Pukhraj D. Jain v. G Gopal Krishna AIR 2004 SC 3504].
Inherent power of the court [Section 151]
Even where the provision of section 10 of cpc do not strictly apply, a civil court has inherent
power under section 151 to stay the suit in order to achieve the ends of justice. A court has
inherent power to consolidate different suits between the same parties in which the matter in
issue is substantially the same. [P. V. Shetty v. B S Giridhar AIR 1982 SC 83.]
Effect of contravention of section 10
A decree passed in contravention of section 10 is not a nullity and therefore cannot be
disregarded in the execution proceedings. [Pukhraj D. Jain v. G Gopal Krishna AIR 2004
SC 3504] hence it the parties waive their right and expressly ask the court to proceed with the
subsequent suit, they cannot afterwards challenge the validity of the subsequent proceedings.
[Muni Lal v. Sarvajeet AIR 1984 Raj 22].
Doctrine of res judicata:
Constructive Res Judicata: the rule of direct res judicata is limited to matters directly or
actually in issue alleged by one party and denied or admitted directly or impliedly by the
another party. The rule of constructive res judicata as engrafted in explanation no. 4 or § 11
suggests that if a plea could have been taken by a party in a proceeding between him and his
opponent, he should not be permitted to take the same plea against the same party in a
subsequent proceeding with reference to the same subject matter. [State of UP v Nawab
Hussain AIR 1977 SC 1680]. This rule helps in raising the bar of res judicata and that is why
it is termed as constructive res judicata which in reality is an aspect or amplification of
general principles of res judicata. [Workman v. Board of Trustees, Cochin Port Trust,
AIR 1978 SC 1283]. It was held in this case that when any matter which might or ought to
have been made a ground of defense or attack in a former proceeding, but was not so made,
then such a matter in the eyes of law, to avoid multiplicity of litigation and to bring about
finality within it, is deemed to have been constructively in issue and therefore is taken as
decided.
Forward contruction company v. prabhat Mandal AIR 1986 SC 391: it was held that the
principle underlying explanation 4 is that where the parties have had an opportunity of
controverting a matter that should be taken to be the same thing as if the matter had been
actually controverted and decided. It is true that where a matter has been constructive in
issue, it cannot be said to have been actually heard and decided. It could only be deemed to
be heard and decided.
Devi lal modi v STO AIR 1965 SC 1150, CJI Gajendra Gadkar: the courts dealing with
the issue of infringement of the fundamental rights endeavor to bring all the matters in
question in order to comprehensively decide the situation in hand but it would not be right to
ignore the principles of res judicata all together in dealing with writ petitions filed by the
citizens contravening the violation of their fundamental rights. The consideration of public
policy cannot be ignored while dealing with the issues of fundamental rights. If such a course
is allowed to be adopted where the matters of fundamental rights violation are kept beyond
the public policy of res judicata, the doctrine of finality of judgments by this court would also
be materially affected.
Matters which are collaterally or incidentally in issue:
isher Singh v sarvan singh, AIR 1965 SC 948: a matter is collaterally and incidentally in
issue if it is necessary to decide it in order to grant relief to a plaintiff or to a defendant and
the decision on such issue either way does not affect the final judgment of the court.
Res judicata between co-defendants: as a matter of fact res judicata applies between
plaintiff and defendant as well as co-plaintiff and co-defendants. Adjudication will operate as
res judicata between co-defendants if the following conditions are satisfied:

 There must be a conflict of interest between the co-defendants;

 It must be necessary to decide that conflict in order to give relief to the plaintiff;
 The question between co-defendants must have been finally decided;
 The co-defendants were necessary or proper parties in the former suit.
If these conditions are satisfied, the adjudication will operate as res judicata between the co-
defendants. [Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332].
Res judicata between co-plaintiffs: if there is a conflict of interest between the plaintiffs
and it is necessary to resolve the same by a court in order to give the relief to a defendant and
the matter is in fact decided, it will operate as res judicata between the co-plaintiffs in the
subsequent suits. [Iftkaar Ahmed v Sayyed Maherban Ali AIR 1974 SC 749]
Proforma Defendant: a defendant to a suit against whom no relief is claimed is called a
proforma defendant. A person may be added as a proforma defendant in a suit merely
because his presence is necessary for a complete and final decision of questions involved in a
suit. Since no relief is sought against him, a finding of the court does not operate as res
judicata for the matter of subsequent suit. [Rahim Bhoy v. Charles Agnew Turner, ILR
1893 (17) Bom 341].

FOREIGN JUDGMENT [SECTION 13 AND 14 OF CPC]

Section 13 and 14 of CPC enact a rule of res judicata in case of foreign judgment which
embodies the principles of private international law that a judgment delivered by a foreign
court of competent jurisdiction can be enforced by an Indian court and will operate as res
judicata between the parties thereto subject to the conditions specified under section 13.
The provisions mentioned under section 13 are not confined in its application only to
plaintiffs but equally entitle a defendant to non- suit the plaintiff on the basis of a foreign
judgment. [Badat Trading Company v. East Indian Trading Company, AIR 1964 SC
538].
Object: the judgment of a foreign court is enforced on the principles that a court of competent
jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim. The
rules of private international law of each state may differ but through the comity of nations
certain rules are recognized as common to different civilized jurisdictions. Thus as a part of
judicial system of each state, these common rules have been adopted in order to effectuate the
judgments of foreign courts in certain matters through their own mutual recognition or
through certain international convention. [Narsimha Roa v. Venkata Lakshi (1991) 3 SCC
451].
Comity of nations e.g.: common law judgments
Principle of reciprocity: a process of mutual recognition where one country have reciprocated
in recognizing the judgment of one country and it casts the obligation on the other country to
reciprocate the judgment of such other country. Here, one individual nation may recognize
other individual nation or group of nations.
Binding nature of such foreign judgments: A foreign judgment shall be conclusive to any
matter thereby directly adjudicated upon between the same parties or between the parties
under whom they or any of them is litigating subject to the conditions mentioned under
Section 13 (a) – (f). [Satya v. Teja Singh 1975 (1) SCC 120]

Foreign judgments not passed by a court of competent nature: the principle of

competency is similar to our own judicial system. We would check if the court
passing the judgment has the competent jurisdiction relating to any aspect. It is a
fundamental principle of law that a judgment or order passed by which have no
jurisdiction is deemed to be null and void. Thus a judgment passed by a foreign court
must be pronounced by a court of competent jurisdiction [R Vishswanthan vs.
Rukn-un-Mulk Syid Abdul AIR 1963 SC 1] and such a competency may be through
both by the law of the state which establish it and in an international scenario it must
be directly adjudicated upon the matter which is pleaded as res judicata. In the case of
Gurdayal Singh v. Raja of Faridkote.
 Foreign judgments not on merits: In order to operate as res judicata, a foreign
judgment must have been given on the merits of the case. A judgment is said to be
given on merits when after taking evidences and applying his mind regarding the truth
or falsity of the plaintiff’s case the judge decides the case one way or the other. Thus,
when a suit is dismissed on default of appearance of the plaintiff or for non
production of document, even before filing of the written statement are not deemed on
merits. [international woolen mills vs standard wool UK ltd. AIR 2001 SC 2134]
 That the foreign judgment should not be against international or Indian law: a
judgment based upon an incorrect view of international law or refusal to recognize the
law of India, where such law applicable is not conclusive, but the mistake present
must be apparent on the face of the proceedings. [R Vishwanathan v. Rukn-ul-mulk
Syid Abdul].
Therefore, a foreign judgment which is found on jurisdiction or on a ground not recognized
by Indian law or goes in contravention of international law, such judgment is deemed to be in
defiance of the law. Hence it is not conclusive on the matters adjudicated therein and
therefore becomes unenforceable in our country. [Narsimha Rao v. Venkata Laxmi].
 Foreign judgment going against the principles of natural justice: it is the essence of
the judgment of a court that it must be obtained after due observance of the judicial
process i.e. the court rendering the judgment must observe the minimum
requirements of principles of natural justice (which may be that the process must be
composed of impartial persons, fair action without bias, presence of good faith,
reasonable notice to the parties from the court and affording each party adequate
opportunity for presenting his case). a judgment which is the result of bias or
elements of mala fide intention are present on part of the judge, then the entire
judgment is deemed to be nullity and the trial becomes Corum non judice.1
1
Gurdayal Singh v Raja of Faridkot; Vishwanathan v sayid abdul.
  Foreign judgment obtained by fraud: it is a well established principle of private
international law that if a foreign judgment is obtained by fraud it will not operate as
res judicata. Fraud and justice can never dwell together or fraud and deceit ought to
benefit none. Fraus et jus nunaqum cohabitant.2 Additionally, it was also held that
fraud may be defined as an act of deliberate deception with the design of securing
some unfair or underserved benefits by taking undue advantage of another. In fraud
one gains at the cost of other. Fraud is thus an extrinsic collateral act which vitiates
all judicial acts whether in rem or in personum. The principle of finality of litigation
cannot be stretched to the extent of an absurdity that it can be utilized as an engine of
oppression by dishonest or fraudulent litigants.
 The foreign judgment should be in contravention of Indian Law: even if the
principles of private international law allow such foreign judgments, but those
principles goes in contravention of the Indian law, such judgments cannot be
followed in India.
Section 14
Presumption as to foreign judgments: section 14 declares that the court shall presume upon
the production of any document purporting to be a certified copy of the foreign judgment and
that such judgment was pronounced by a competent court unless the contrary is proven on
record.
But SC has held that mere production of the photostate copy of a decree of a foreign court is
not sufficient. It is required to be certified by a representative of a central government or the
judicial officer of the country.3

2
A B Papayya Shastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
3
Narsimha Rao v Venkata Lakshi.
 PLACE OF SUEING
Suits may be of different types based upon contracts, torts, movable property, immovable
property etc. The jurisdiction of the court to entertain, deal with and decide a suit may be
restricted by a variety of circumstances, including the decision of place of suing. Section 15
to 20 regulates the forum for the institution of suits.
Scheme: section 15 requires the plaintiff to file a suit in the court of the lowest grade
competent to try it. Section 16 to 18 deals with suits relating to immovable property. Section
19 applies to suits for compensation for wrong to person or to immovable property. Section20
is a residuary section and deals with power of civil court in relation to suit which has not been
covered from section 15 to section 19.
Pecuniary jurisdiction: every suit shall be instituted in the court of the lowest grade
competent to try it.
Nature and scope: section 15 of the Code refers to the pecuniary jurisdiction of the court.
The rule laid down in the section is a rule of procedure and does not affect the jurisdiction of
the court. Hence, a decree passed by a court of a higher grade cannot be said to be without
jurisdiction.4 It is merely an irregularity covered by Section 99 of the Code and the decree
passed by the Court is not a nullity.5
Object:

 To see that the courts of higher grade shall not be overburdened with the suits
 To afford convenience to the parties and witnesses who may be examined in such suit.
Mode of valuation:
Prima facie it is the plaintiff’s valuation in the plaint that determines the jurisdiction of the
court and not the amount for which ultimately the decree may be passed. 6 The valuation of
the suit which is low at the time of institution may not act as an impediment on the powers of
the court to grant greater damages.
Powers and duties of the court in such valuations:

 If the plaintiff deliberately undervalues or overvalues the claim for the purpose of
choosing the forum, the plaint cannot be said to be correctly valued and it is the duty
of the court in such circumstances to return the plaint to be filed in proper court.
 But if the court is unable to come to a finding regarding the correct valuation of the
subject matter, the court has to accept the valuation computed on behalf of the
plaintiff.7
Territorial jurisdiction:

 Types of suit: for the purpose of territorial jurisdiction of the courts, suits may be
divided into four categories:
o Suits in respect of Immoveable property (Sec 16-18): clauses (a) to (e) of
section 16 deals with suits for immovable property under 5 categories:
4
Gopal v Shamrao, AIR 1941 Nag 21.
5
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.
6
Kiran Singh v. Champan Paswan,
7
Tara Devi v. Shir Thakur Radha Krishna Maharaj, AIR 1987 SC 2085.
  Suits for recovery of immovable property;
 Suits for partition of immovable property;
 Suits for foreclosure (in relation to mortgage);
 Sale or redemption in the context of mortgage or any other charge;
 Suits for determination of any other right or interest in immovable
property;
 Suits for torts committed against immovable property.
These suits must be filed in the courts within the local limits of whose jurisdiction the
property is situated. section 17 is called contingency provision which says that where a suit is
to obtain a relief in relation to a damage in torts to the immovable property situated within the
jurisdiction of different courts, such suit may be filed in the court within the local limits of
whose jurisdiction any portion of the property is situated provided that it does not breach the
pecuniary jurisdiction of such court.
o Movable property (19)
 A suit for wrong to movable property may be brought at the option of
the plaintiff either at the place where the wrong is committed or where
the defendant resides, carries on business or personally works for
gain.
 Where such wrong consist of a series of acts, a suit can be filed at any
place where any of the acts has been committed similarly where a
wrongful act is committed at one place and the consequence ensue at
another place, a suit can be instituted at the option of the plaintiff
where the cause of action has arisen or the consequences has ensue.
o Suits for compensation for wrong committed (torts) (19)
 A suit for compensation for wrong or a tort to a person may be
instituted at the option of the plaintiff either where such wrong is
committed or where the defendant resides or where he carries on
business.
o Other types of suits (residuary suits) (20): It provides for all the suits which
have not been covered through sec 16 to 19. All such suits may be filed at the
option of the plaintiff in the following manner:
 Where the cause of action wholly or partly arises;
 Where the defendant resides or carries on business or personally
works for gain;
 Where there are two or more defendants, any of them resides or
carries on business may be added to the suit and the plaintiff may at
his option
 Either through the leave of the court; or
 Through the defendants who do not reside at that place, may
acquiesce in such institution.
Forum shopping: it is a well settled principle of law that consent can neither confer nor can
take away the jurisdiction of a competent court and the same principle is applicable while
oustering the jurisdiction of the court and by no means of consent, waiver, or estoppel can
stop the jurisdiction of the competent court. But where two or more courts have jurisdiction
to entertain a suit, an agreement by the parties to submit to the jurisdiction of one of such
courts to the exclusion of other courts is valid, binding and enforceable.8

ESSENTIALS OF THE SUIT

There are four essentials of a suit:

 Opposing parties to a suit;

 Subject matter in dispute;
 Cause of action; and
 Relief sought.
Parties to the suit (Order 1): order I deals with the parities to a suit. It also contains
provisions for addition, deletion and substitution of parities through joinder, misjoinder and
non-joinder of parties.
Joinder of parties: the question of joinder of parties may arise either as regards to the plaintiff
or as regards to the defendants. An act may be done by a single individual and may affect
another individual. The question of joinder of parties arises only when an act is done by two
or more persons or it affects two or more persons.
Joinder of plaintiffs (rule 1): it states that all persons may be joined in one suit as plaintiffs in
the fulfillment of the following two conditions:

 The right to relief alleged to exist in each plaintiff arises out of the same act or
transaction; and
 The case is of such a character that, if such persons brought separate suits, any
common questions of law or fact would arise.9
The word ‘and’ between clauses (a) and (b) makes it clear that both the above conditions
should be fulfilled which means that they are cumulative and not alternative.
Joinder of defendants (rule 3): it states that all persons may be joined in one suit as
defendants if the following two conditions are satisfied:

 The right to relief alleged to exist against them arises out of the same act or
transaction, and
 The case is of such a character that, if separate suits were brought against such
persons, any common question of law or fact would arise.
The underlining object of rule 3 is to avoid multiplicity of suits and needless expenses.10
Necessary party: it is one whose presence is indispensible to the constitution of the suit,
against whom the relief is sought and without whom no effective order can be passed.
A proper party is one in whose absence an effective order can be passed but whose presence
is necessary for complete and final decision on the question involved in the proceedings. 11
8
Union of India v. Oswal Woolen Mills Ltd., AIR 1984 SC 1264; Morgan Stanly Mutual Fund v. Kartik Das,
(1994) 4 SCC 225; ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711.
9
Krishna Laxman v. Narshinghrao Vithalrao, AIR 1973 Bom 358.
10
Ishwar Bhai v Harihar Behera, (1993) 3 SCC 457.
11
Kasturi vs. Iyyam Perumal, AIR 2005 SC 2183.
This case also lays down two tests for determining the question whether a particular party is a
necessary party is necessary party to a proceeding: 1. There must be a right to some relief in
respect of the question involved in the proceedings; 2. It should not be possible to pass an
effective decree in absence of such a party.
If there is a dispute or a cause of action between certain persons, all of such persons becomes
necessary parties.
Non Joinder and misjoinder of parties [Rule 9]: where a person who is a necessary party or a
proper party to a suit has not been joined as a party to the suit, it will become the case of non
joinder. On the other hand, if two or more persons are joined as plaintiffs and defendants in
one suit, in contravention of rule 1 and rule 3 of order 1, and they are neither necessary or
proper parties, then it will become the case of misjoinder of parties.
The general rule is that a suit cannot be dismissed only on the ground of non joinder or
misjoinder of parties nor a decree passed by a competent court on merits will be set aside on
the ground of misdescription of the defendant. However, this rule does not apply in case of
non joinder of a necessary party.12
Objections as to non joinder or misjoinder of the parties: rule 13, order 1: all the objections
on the ground of non joinder or misjoinder of parties must be taken at the earliest possible
opportunities. Otherwise they will be deemed to have been waived, but if the objection as to
non joinder has been taken by the defendant at the earliest stage and the plaintiff declines to
add the necessary parties, he cannot be subsequently allowed in appeal to rectify the error in
appeal by applying for amendments.13
Adding or substituting or striking out parties Rule 10 Order 1: Rule 10(1): if after the
filing of the suit, the plaintiff discovers that he cannot get the relief, he seeks without joining
some other person as a plaintiff and also where it is found that some other person and not the
original plaintiff is entitled to the relief an application for addition or substitution of the
plaintiffs can be made. To bring a case under this rule, three conditions must be satisfied:

 The suit has been filed in the name of a wrong person as a plaintiff;
 Such mistake must be bonafide; and
 The substitution or addition of the plaintiff is necessary for determination of the real
matter in dispute.14
Object of this rule: to save honest litigants or plaintiffs believing in bona fide maintainability
of their claims being non-suited on a mere technical ground. The policy is to decide the real
question in controversy between the parties bypassing the mere technical objections for
defeating a just and honest claim by discouraging the contest purely on technicalities.15
Striking out or adding the parties, Rule 10 (2): this rule empowers the court to add any
person as party to the suit on any of the two grounds alternatively:

 Such person ought to have been joined as a plaintiff or as a defendant or is not so

joined; or

12
Diwakar Srivastav v. State of MP, AIR 1984 SC 468.
13
Naba Kumar v. Radha Kumar, AIR 1931 PC 229.
14
Raziya Begum vs Sahebjadi Amwar Begum.
15
Anil Kumar v. Shiv Nath, (1995) 3 SCC 147.
  Without his presence the question involved in the suit cannot be completely heard or
decided.16
This provision confers a wider discretion on the court to meet with every case of defect of
parties and is not affected by the inaction of the plaintiff to bring the necessary parties on the
record. Adding of parties is a judicial discretion and has to be exercised judiciously.17
For exercising the powers under Rule 10(2), the court has to base its decision on sound
judicial principles keeping in mind all the facts and circumstances of the case. The two
considerations which the court should follow while exercising such powers are:

 The plaintiff is dominus litis in the case, which means he is the best judge of his real
interest in the case and normally the court should not compel him to fight against a
person whom he does not want to fight;
 If the court is satisfied that the presence of a particular person is necessary to
effectively and completely adjudicate all the disputes between the parties irrespective
of the wishes of the plaintiff the court may exercise the power and join a person as
party to the suit.18
Raziya Begum vs Sahebjadi Amwar Begum: SC has laid down few principles regarding
the powers of the court to add on the parties to the suit under rule 10(2):

 The question of addition of parties under rule 10 of order 1 is generally not of initial
jurisdiction of the court but is a question of judicial discretion (this is not the way of
assuming jurisdiction) which has to be exercised in view of all the facts and
circumstances of the particular case but may raise controversies in determining the
powers of the court;
 In a suit relating to a property, a person may be added as a party if he has a direct
interest in the subject matter as distinguished from a commercial interest;
 Where the subject matter of litigation is declaration as regard to the status or legal
character, the rule of direct interest may be relaxed in a suitable case where the court
is of the opinion that by adding the party it would be in a better position effectually
and completely to adjudicate upon the controversy.
In 2nd point, it was a suit for ownership and granting the possession of the immovable
property, in the 3rd point, it is only a suit for declaration and therefore commercial interest can
be included. Suits under 3rd point is not for the rights over the property, its only for getting a
declaration.

 The rule of exercising the discretionary power should be exercised cautiously in the
cases of section 42 and 43 of the specific relief act.
REPRESENTATIVE SUIT [ORDER 1, RULE 8]
Rule 8 is an exception to the general principle of civil litigation where it provides that when
there are number of parties similarly interested in the suit, one or more of them, can with the

16
Raziya Begum vs Sahebjadi Amwar Begum; Anil Kumar v. Shiv Nath, (1995) 3 SCC 147.
17
Ramesh Hirachand vs. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524.
18
Ramesh Hirachand vs. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524; Raziya Begum vs
Sahebjadi Amwar Begum.
permission of the court, or upon the directions from the court, may sue or be sued on behalf
of themselves and others.19
A representative suit is filed by or against one or more persons on behalf of themselves and
others having the same interest in the suit. Either the parties are affected by the same cause of
action or are similarly affected by the acts of other parties.
Class Action Suit: used in the US jurisdiction.
Difference between class action suit and representative suit??
Object of representative suit: to facilitate the decisions involving large number of persons
who are similarly interested without recoursing to the ordinary procedure of CPC. This helps
in saving time and expenses and ensures a single comprehensive trial of all the questions
involving such numerous persons and avoiding the harassment of parties through multiplicity
of suits.20
The representative suit is an enabling provision, which allows one to use this provision, but it
is not mandatory to get a suit represented. Order 1 Rule 8 is an enabling provision, it neither
compels an individual to represent a body of persons having the same interest not it debars a
member of the community from maintaining a suit in his own right in respect of a wrong
done to him.21
Conditions to be fulfilled to make a suit representative

 The parties must be numerous, it is not required that the number of persons should be
clearly certain nor it amounts to the fact that numerous will represent innumerable.
Therefore the only question is that the criterion of numerous shall be decided by the
court based upon the facts of each case while taking into account the nature of
controversy and subject matter in dispute;22
 They must have same interest in the suit: the term same interest means that an interest
must be common to all of them or they must have a common grievance against which
they want to seek redressal. Therefore, a community of the interest is essential and
acts as condition precedent for bringing a representative suit.23
 The permission must have been granted or directions must have been given by the
court; and
 Notice must have been issued to the parties whom it is proposed to represent in the
suit.

Framing of the Suit (Order 2):

Every suit must include the whole of plaintiff’s claim in respect of cause of action so that as
far as practicable that all matters in dispute between the parties shall be disposed off finally.
It is the duty of the court to see whether it was practicable on part of the plaintiff to include
the entire claim which he had either omitted or intentionally relinquished. [Order 2, Rule 1]
19
Diwakar Srivastav vs. State of MP.
20
Kodia Gounder vs. Velandi Gaunder, AIR 1955 Mad 281.
21
T. N. housing Board v. T. N. Ganapathy, AIR 1990 SC 642.
22
Hasan Ali v. Mansur Ali, AIR 1948 PC 66.
23
Kodia Gounder vs. Velandi Gaunder, AIR 1955 Mad 281; T. N. housing Board v. T. N. Ganapathy, AIR 1990
SC 642.
Under Order 2, Rule 2, if a plaintiff fails to bring the cause of action or he has omitted or
intentionally relinquished a portion of the claim then he shall not be allowed afterwards for
invoking the portion so omitted or relinquished. The object of this rule is to protect the
defendant from being vexed twice for the same cause, it is a counter willing measure against
two types of malpractices being practiced in the court which are:

 Splitting up of claims;
 Splitting up of remedies24
It was held in these cases that the rule 2 of order 2 provides that a suit must include the whole
of the claim which the plaintiff is entitled to make in respect of the cause of action on which
he sues and if he omits to sue for any relief to which his cause of action would have entitled
him, he cannot claim it through a subsequent suit as the object of this statutory rule is to
prevent multiplicity of suits.
in the case of Deva Kumar vs Ishwar Chand, 1995 6 SCC 733, it was held that Order 2 Rule 2
is based a cardinal principle that a defendant should not be vexed twice for the same cause.
Order 2 rule 2 and res judicata
The provision of order 2 rule 2 are penal in nature and therefore should be construed strictly.
This provision is highly technical and deprives a party to a legitimate right which was
otherwise available to him. Hence the plea of res judicata in context of order 2 rule should not
be highly upheld and such plea should be raised at the earliest opportunity.25
Conditions of application of order 2 rule 226

 The second suit which is brought must be in respect of same cause of action as that on
which the previous suit was based;
 In respect of that cause of action, the plaintiff was entitled to more than one relief;
 Being thus entitled to more than one relief the plaintiff without the leave of the court
omitted to sue for the relief for which the second suit has been filed.
Tests laid down in Mohammed Khalil vs. Mahboob Ali, AIR 1949 PC 78.

 The correct test of the cases falling under Order 2 Rule 2 is whether the claim in the
new suit is in fact founded upon a cause of action distinct from that which was the
foundation of the former suit.
 The cause of action means every fact which will be necessary for the plaintiff to prove
if traversed in order to support his right to judgment.
 If the evidence to support the two claims is different then the causes of action are also
deemed to be different.
 The casues of action in the two suit, may be considered to be the same if in substance
they are identical and merely the language of presentation is different.
 The cause of action has no relation whatsoever to the defence that may be set up by
the defendant nor does it depend upon the character of the relief prayed for by the
plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a
conclusion in his favor.

24
Naba Kumar vs. Radha Shyam, AIR 1931 PC 239; Mohammed Khalil vs. Mahboob Ali, AIR 1949 PC 78.
25
Gurubux Singh v Bura Lal, AIR 1964 SC 1810.
26
Ibid.
Order 2 Rules 4 and 5: Joinder of Claims
Rule 4 lays down that in the suit for recovery of immovable of immovable property, a
plaintiff is not entitled to join any claim without the leave of the court except:

 Claims for mesne profits;

 Arrears of rent in respect of the property claimed or any part thereof.
 Claims for damages for breach of contract under which the property or ant part
thereof is held.
 Claims in which the relief sought is based on the same cause of action in the
ongoing suit.
Rule 5, which deals with the suit by or against three classes of persons, i.e. executors,
administrators and legal heirs. It provides that no claim by or against such persons in their
representative capacity shall be joined with the claims by or against them personally in the
same suit except:

 Where the personal arise with reference to the estate he represents;

 Where he was entitled to or liable for those claims jointly with the deceased whom he
represent.
The main object of this rule is to prevent a representative from inter mingling the assets of his
testator with his own estates.
Order 4: institution of the suit

 Order 4 rule 1 read with section 26 talks about presentation of plaint. It lays down that
every suit must be instituted by the presentation of the plaint in duplicate or in any
other manner as prescribed by the court by the plaintiff himself or by his advocate or
through his recognized agent.
 A plaint must be presented to the court or any such officer as is appointed in that
behalf. The presentation of the plaint takes place in the general working days during
the working hours.
 Every plaint must contain necessary particulars like the name of the court, the title,
the cause of action, and the relief sought etc.
 Particulars of every such suit will have to be entered in the registers of the civil suits
as maintained by each court.
 If a suit is instituted by an indigent (whose property is valued below or equal to rs.
1000) person or on behalf of minor or on behalf of dead person, then a statement
giving the effect to the same must be included in the plaint.
Civil Pleading (Order 6)
Order 6, Rule 1: pleadings include both plaint and written statement, in other words,
pleadings are the statements in writing drawn up and filed by each party to a case stating
what his contentions will be at the trial and giving all such details as his opponent needs to
know in order to prepare his case in answer.
Objects of the Pleadings: the whole object is to bring parties to definite issues and to
diminish and delay the expenses and to prevent surprises at the stage of hearing. It helps in
ascertaining the real disputes between the parties, thereby narrowing down the area of
conflict and precluding one party from taking the other by surprise so as to prevent
miscarriage of justice.27
In Ganesh Trading Company vs Moji Ram,28 it was held that pleadings in civil cases are
meant to give each side intimation of the case of the other so that it may enable the court to
determine the real issue at hand between the parties.
In Virendra Kashinath vs. Vinayak Joshi, 29 it was held that the object of pleadings is two
folds:

 To afford the other side intimation regarding the particular facts of his case so that
they may be met by the other side;
 To enable the court in deciding the actual dispute or controversy emerging out of the
factual proposition.
Basic Rule for Pleadings (Order 6, Rule 2):

 Sub Rule 1, Rule 2: every pleading shall contain and contain only a statement in a
concise form of the material facts on which the party pleading relies for his claim or
defence, as the case may be, but not the evidence by which they are to be proved.
Additionally, no law is even pleaded.
 General principles governing pleadings:
o Pleadings should state facts and not law
 Kedar Lal vs Hari Lal and Ram Prasad vs State of M.P.: The
construction of pleadings can be summarized as “plead facts and not
law, which is based on a principle that a judge if bound to apply the
correct law even if incorrect law if pleaded by a party, however, a
mixed question of fact and law should be specifically raised or
pleaded. For e.g. the existence of a custom or usage or establishing the
intention of a party is termed as question of facts.”
o The facts above stated must be material facts (those bundle of facts which the
parties has to prove to establish one’s case and which gives right to the relief
or acts as valid shield and defence). Additionally, other facts which help in
establishing such important facts are even included;
 Udhaw Singh vs. Madhav Rao Scindia:
 Virendra lal vs. stapal singh: all the primary facts which are to be
proved at the trial by a party to establish the existence of a cause of
action or his defence is termed as material facts. It is absolutely
essential that all the basic and primary are pleaded and established by
the party beyond reasonable doubt, however there exists a differnce
between material facts and particulars where non supply of material
facts may entail the dismissal of the suit but non supply of essential
particulars may not lead to the same consequence as material facts are
essential to be proved and material particulars may be refined or
amended even during the stage of pleadings.
o Pleadings should not state the evidences (annexure can be included just to
substantiate the claim)

27
Dhrob vs. Holdsworth.
28
AIR 1978 SC 484.
29
AIR 1999 SC 162.
  R M Shashadri vs. G BaSant Pai: the pleadings should contain a
statement of material facts which the party relies but not the evidences
through which those facts are to be proved. There are two types of
facts:
 Facta probanda: the facts required t o be proved (material facts)
 Facta probantia: the facts by means of which material facts are
proved (particulars or evidences).
o The facts stated in the pleadings should be in concise form
 Charan lal Sahu vs. Gyani Zail Singh: all the material facts must be
stated in summary form according to the nature of the case. Immaterial
averments and unnecessary details must be omitted and material
allegations and necessary particulars must be included. if due care is
taken through systematic process pleadings can be saved from
tautology.
 Other rules of pleadings:
o Where misrepresentation, fraud or breach of trust or undue influence are
pleaded in the pleadings, then particulars with dates and time should be stated
specifically.
 Dishnu dev v. sarogani rai: in the cases of fraud, undue influence or
coercion, the parties pleading it must set forth full particulars and the
case can only be decided on the basis of the particulars as laid down in
the court.
o The object of the pleading is to narrow the controversies so as to decide the
issues with precision so as to give proper notice and including all the essential
particulars within the notice itself to be submitted to either parties of the case.
Therefore, the particulars stated in the pleadings should be sufficient and
specific and the court should specifically insist upon the particulars before
proceeding with the trial of the suit.
o The performance of condition precedent need not be pleaded as it is already
implied in the pleadings. Non performance of the condition precedent however
must be specifically pleaded and included by the parties.
o Departure from the pleadings is to permissible and except by way of
amendment, no party can raise any ground of claim or any allegation of fact
inconsistent with previous pleadings.
o A bare denial of contract by the opposite party will be construed only as a
denial of factum of contract and not the legality or enforceability of the
contract.
 Kalyanpur Lime Works ltd. v. State of Bihar AIR 1954 SC 165:
o Documents need not be set out at length in the pleadings unless they are
deemed material.
o Whenever giving of notice to any person is necessary or a condition precedent,
pleadings should only state regarding giving of such notice without setting out
the form or precise terms or such notice or the circumstances from which it is
to be inferred unless they are material.
o Implied contracts or relations between persons may be alleged as a fact and
the series of letters conversations and the circumstances from which they are
to be inferred should be pleaded generally.
o Facts which the law presumes in favor of a party or as to which the burden of
proof lies upon the other side need not be pleaded.
 o Every pleading has to be signed by the party or by one of the parties or his
pleaders.
o Pleadings should supply the detailed address of the parties contending as well
as the address of the opposing parties.
o Every pleadings should be verified on affidavit by the party or one of the
parties or by a person acquainted with the facts of such facts.
o Every pleading must be divided into paragraphs numbered consecutively and
each new averment or allegation or defence should be stated in separate
paragraphs and any date or amount has to be stated in both figures as well as
words.
Alternative pleadings: it conveys a choice on behalf of a party to a litigation and may include
in his pleadings two or more facts or claims or reliefs which may act as an alternative to the
previous relief.
Inconsistent pleadings: it means mutually repugnant, contradictory and destructive or
reconcilable pleadings due to which both the previous or present pleading may not stand in
the court of law because acceptance of one pleading necessarily implies abrogation or
abandonment of the other set of pleadings.
The main object of allowing alternate pleading in one litigation is to obviate the necessity of
another litigation and to decide the controversy in one litigation comprehensively and the
code of civil procedure supports the alternative set of pleadings.30
How to construct pleadings: strict and specific; it is uniformly stated or held by the Courts
that pleadings in India should be construed strictly in relation to the actual relief sought under
the statute but should not be construed strictly in relation to the form of pleadings thereof and
for the same it may be interpreted liberally. In Madan Gopal vs. mani Ram, AIR 1976 SC
461, where it was held that the pleadings in India are loosely drafted in the courts and the
courts should not scrutinize the pleadings with such meticulous care so as to debar the
genuine claims on trivial or technical claims. In Ram Swaroop vs Bishnu Narayan Inter
college, it was held that pleadings should receive a liberal contruction so as to facilitate the
cause of justice and pedantic (narrow and technical) approach should not be adopted to defeat
the justice on hair splitting technicalities. It is not desirable to place higher emphasis on form
but substance should be looked into specifically.
Striking out pleadings (Rule 16, Order 6): the court is empowered to strike out any pleading
if it is unnecessary, scandalous, frivolous or vexatious or tends to prejudice or embarrass or
delay the fair trial of the suit or is otherwise deemed as an abuse of the process of the court.
In vijay kumar vs tota singh, 2006 (13) SCC 353, the conditions where court could use rule
16 were laid down:

 Where such pleading is unnecessary, scandalous, frivolous;

 Where such pleading tends to prejudice or embarrass or delay the failr trial of the suit
 Where such pleading is otherwise deemed as an abuse of the court proceedings.
The power to strike down pleadings is extraordinary in nature and must be exercised by the
court with extreme care, caution and circumspection.
Rule 14-15, Order 6: signature and verification of pleadings

30
Arundhati Mishra vs. Ram Charitra Panday, 1994 (2) SCC 29.
As a general rule, every pleading must be signed by the party or by one of the parties or by
his pleader. But if the party is unable to sign the pleadings, it can be signed by any person so
authorized by him. The verification must be signed on an affidavit by the person verifying
and must contain the date on which and the place at which it was signed. The person
verifying the pleading should also furnish an affidavit in support of his pleadings. It is a well
settled principle that a party can be permitted to adduce evidence on the basis of the case
pleaded by him in his pleading and he cannot setup a case inconsistent with his own
pleadings. The purpose for such rule is two folds:

 To appraise the opposite party distinctly and specifically of the case he is called upon
to answer so that he may property prepare his defence and may not be taken by
surprise;
 To maintain an accurate record of the cause of action as a protection against second or
subsequent proceeding founded upon the same question of law.31
An objection to pleading should be taken at the earliest. If at an appropriate stage such an
objection is not raised, it is deemed to have been waived as it is based on the principle that in
such cases it cannot be held that a prejudice has been caused to the party by raising a plead at
a belated stage.
Amendment of pleadings [rule 17-18]: as a general rule material facts and necessary
particulars must be stated in the pleadings and the decision of the court cannot be based on
the grounds outside the pleadings but if the party comes up with a fresh information in order
to deliberate the real controversy at hand, it necessitates the reshaping of claims and defence.
The object of the rule is that the court should try the merits of the case that comes before
them and should consequently allow all amendments that may be necessary for determining
the real question in controversy between the parties provided it does not cause injustice,
prejudice to the other side. The court while doing complete justice may allow such
amendment applications in the larger interest of the parties for meeting the relevant criterions
of litigation.
Rule 17 confers a wider discretion on the court to allow either party to amend his pleading at
any stage of the proceeding on such terms as it may deem fit. Such discretion however should
be exercised judicially and inconsonance with well established principles of law. The
provision of rule 17 is not exhaustive and wherever rule 17 does not apply, resort can be
taken to section 151.
Leave to amend when can be granted:
The amendment of pleadings application can be granted so as to enable the real question in
issue between the parties to be raised in the pleadings therefore, an amendment application
can be raised in following circumstances:

 Whether the amendment is necessary for the determination of real question in

controversy;
 Can be amendment by allowed without causing injustice to the other side.

31
Om prakash vs. ram kumar, AIR 1991 SC 409.
The first condition must be satisfied before approving the amendment application as the
cardinal test for granting amendment remains ‘the real controversy in issue.’ No amendment
should be allowed when it does not satisfy this cardinal test.32
Leave to amend when can be refused:
The power to grant amendment is a discretionary power as well as a legal power and no legal
power can be exercised improperly, unreasonably or arbitrarily. In Ganga Bai vs. Vijay
Kumar AIR 1974 SC 1126, it was held that the power to allow an amendment is wide and
discretionary and such discretionary power should be governed by judicial considerations as
wider the discretion, greater ought to be the care and circumspection on part of the court.
Leave to amend can be refused in the following circumstances:

 Leave to amend will be refused where the amendment is not necessary for the
purpose of determining the real question in controversy between the parties;
 Leave to amend will be refused if it introduces a totality different, new and
inconsistent case or changes the fundamental character of the suit or defence;33 the
test as to whether the amendment should be allowed is whether or not the party can
amend his pleading without placing the other side in a position from which he cannot
be recouped in relation to costs or otherwise.
 Where the effect of the proposed amendment is to take away from the other sidea
legal right already accrued in his favor;34 Charan Das vs. Amir khan AIR 1921 PC
50, the full power to make an amendment on behalf of the court can not be disputed,
those power should be exercised in a way that it does not take away from the
defendant a legal right which has accrued to him by lapse of time but there may be
cases or circumstances where such considerations are outweighed by the special
circumstances of the case itself.
 Where the application for amendment is not made in good faith because as a general
rule, leave to amend ought not to be granted if the applicant has acted malafide.35

Principles regarding amendment of pleadings:

 All the amendments should be allowed which are necessary for determination of real
controversy in the suit;
 The proposed amendment should not alter and be a substitute for the cause of action
on the basis of which the original litigation was filed or raised;
 Inconsistent and contradictory allegations in negation to the admitted position of facts
or mutually destructive allegations should not be allowed to be incorporated by means
of amendment;
 Proposed amendment should not cause injustice or prejudice to the other side which
cannot be compensated by way of costs;
 Amendment of a claim or relief barred by time should not be allowed;
 No amendment should be allowed which amounts to or results in defeating a legal
right to the opposite party on any account (lapse of time, etc.)

32
Kishan das vs. rachappa vithoba, 1909 ILR Bom.
33
Modi Sewing and Weaving Mills co. ltd. vs. Ladha Ram, (1976) 4 SCC 320; A.K. Gupta and Sons ltd. Vs
Damodar valley corporation, AIR 1967 SC 96.
34
Pirgonda Patil vs. Kalgonda Patil; A.K. Gupta case.
35
Ram Manohar vs. National Building Material Supply, 1969 1 SCC 869; Pirgonda Patil vs. Kalgonda Patil.
  No party should suffer on account of technicalities of law and the amendment should
be allowed to minimize the litigation between parties to the extent possible.
 The delay in filing petition for amendment of pleadings should be properly
compensated for by way of costs.
 Error or mistake which is not fraudulent should not be made a ground for rejecting
the application for amendment of pleadings.
 The principles mentioned herein are illustrative and not exhaustive.
Doctrine of relation back: an amendment is aiming at the main course of pleadings.
Amendment would deem to take an effect from the date when the original suit is filed and not
form the day on which such amendment is accepted. This doctrine refers to the fact that
normally an amendment relates back to the original course of pleadings but the doctrine is not
absolute, unqualified or of universal application. In appropriate cases, the court may order the
amendment to take an effect from the date of application or from the date of approval and not
from the date the plaint or written statement was actually presented.36
Failure to amend the pleadings (Rule 18)
If a party who has obtained an order to leave to amend does not amend accordingly within the
time specified for that purpose in the order or if no time is specified then within 14 days from
the date of such order, he shall be permitted to amend, after the expiry of which, he may not
be subsequently allowed to amend. The rule is discretionary in nature and the court may on
its own extend the time line or may allow a subsequent amendment depending upon the facts
and circumstances of the case.

ORDER 7 [PLAINT AND WRITTEN STATEMENT]

Rule 1 to 8: particulars of plaint

 The name of the court in which the suit is to be brought;

 The name, description and place of residence of the plaintiff;
 Name, description and place of residence of the defendant;
 Where the plaintiff or defendant is minor or a person of unsound mind, then a
statement of that effect;
 Facts constituting the cause of action and the time when it arose;
 The facts showing that the court have requisite jurisdiction;
 Statement of the value of subject matter of the suit for calculation of requisite court
fees and for pecuniary jurisdiction of the court;
 The relief claimed by the plaintiff, simply or in alternative;
 Where the plaintiff files the suit in a representative capacity, the facts showing that
the plaintiff have actual existing interest in the subject matter and that he has taken
steps to realize such interests;
 Where the plaintiff has allowed a set off or relinquished a portion of his claim, the
amount so allowed or relinquished;
 Where the suit is for recovery of money, the precise amount claimed by the plaintiff;
 Where the suit if for accounts or mesne profits or for movables in possession of the
defendant, the approximate amount or value thereof;
36
Brij Kishore vs. Mushtari Khatoon; Vishambhr vs. Lakshmi Narayan, AIR 2001 SC 2607 (exception to the
above doctrine).
  Where the subject matter of the suit is immovable property, a description of the
property making it sufficiently identifiable;
 The interest and liability of the defendant in the subject matter of the suit;
 Where the suit is time barred, the ground upon which exemption from law of
limitation is claimed;
 Bhagwati Prasad vs Chandramaul, AIR 1966 SC 735, it was held that the general rule
is that the relief should be founded upon the pleadings made by the parties in either
written or oral form. To allow one party to rely upon a matter in respect of which the
other party did not lead evidence and hence had no opportunity to lead evidence
would introduce considerations of prejudice and in doing justice to one party, the
court cannot do injustice to another. But the suit cannot be dismissed merely on the
ground that the plaintiff has claimed a bigger relief than he is entitled to as the court
may on its own grant a relief for which the plaintiff is sufficiently entitled.

Rule 9: admission of plaint

It provides for filing of copies of the plaint by the plaintiff and also requires him to pay
requisite court fees as well as the fees for the service of summons within seven days of the
date of such admission.
Return of plaint, rule 10 and 10 B
Where at any stage of the suit the court finds that it has no jurisdiction either territorial or
pecuniary or in relation to the subject matter of the suit, it will return the plaint to be
presented to the proper court in which the suit ought to have been filed.
The judge returning the plaint should make endorsements on it regarding:

 The date of presentation;

 The date of return;
 The name of the party presenting it;
 Reasons for return of plaint.
Rejection of plaint Rule 11
The plaint will be rejected in following cases:

 Where the plaint does not disclose the cause of action;

 Where the relief claimed is undervalued;
 Where the plaint is insufficiently stamped;
 Where the suit is barred by law;
 Where the plaint is not filed in duplicate;
 Where there is non compliance with statutory provisions of this code;
 Any other ground
Procedure for rejection of plaint
Where a plaint is rejected by the court, the judge will pass an order to that effect and will also
record the reasons for such rejections.
Effect of rejection: Rule 13
If the plaint is rejected in any of the above grounds, the plaintiff is thereby preclude from
presenting a fresh plaint on the same cause of action. Such rejection order is appealable
Documents submitted along with the plaint Rule 14-17
a document upon which the plaintiff seeks to rely or has relied is specifically mentioned that
it ought to have been produced in the court along with the plaint, however this provision does
not apply to following documents:

 the documents which are reserved for the purpose of cross examination of the
defendant’s witnesses
 .the documents which are handed over to the witnesses merely for the purpose for
refreshing their memory.

Summons [section 27-29 read with order 5]

A summon is a document issued from the office of court of justice calling upon the person to
whom it is directed to attend before a judge or officer of the court for a certain purpose
whereby an intimation is sent requiring him to appear before the court.
Object: where a suit is filed by the plaintiff against the defendant seeking a relief against
him, the defendant must be given an opportunity as to what he wants to contend in relation to
the case so instituted. This goes in consonance with the principles of natural justice where it
suggests that no one should be condemned unhurt. [audi altrem partem]. It is however the
discretion of the court to make a person appear in a person through any other mode. If the
summon is not served to the defendant, it will not bind him for the purpose of decree.
Essential particulars of the summon (Rule 1 and 2)
A summon issued from the court shall be signed by the judge or such officer as appointed by
him and shall be sealed by the seal of the court and in case of summon being served to the
defendant, it shall be accompanied by the copy of the plaint.
Appearance in person, rule 3: through the successful delivery of summons, the court may
direct:

 A person to appear before it individually or in person;

 The court may direct a pleader on behalf of the person to appear before the court
who have the knowledge of the case and is able to answer all material questions;
 A pleader along with some person who is able to answer all such material
question.
Exemption from appearance in person Section 132-133, rule 4:

 No person shall be ordered to appear in person unless

o He resides within the local limits of the ordinary original jurisdiction of the
court; or
o Outside such limits but not less than fifty miles in case of non availability of
public conveyance and 200 miles in case of availability of public
conveyance.
 A women not appearing in public;
  Any order ground of exception to which a person is entitled under this code.
Contents of summon [rule 5-8]
Every summon must contain a direction as to the date fixed either for settlement of issues or
for final disposal of the suit, in case of final disposal, the defendant should be directed to
produce his witnesses. The court should ensure availability of sufficient time to the defendant
for answering the claims of the plaintiff. The summon should also contain an order asking the
defendant to produce all documents which are in his possession or documents upon which he
seeks to rely during the trial of the suit.
Mode of service of summon [rule 9-30]
The service of summons is of fundamental importance to the civil litigation because as a
matter of general rule, fair trial should be accorded to each and every party whereby he can
defend himself with adequate time. The service of summon has also been an area of concern
for the court as it caused delay in the litigation and therefore taking into account the modern
means of communication, amendments were brought in delivery of summon in 1976, 99,
2002.
Different modes of summons:

 Service of summons in person: rule 10, 16-18: the mode of service of summon in
person is the ordinary mode of service which is governed by following principles:
o This is the most ideal mode of service because as summons means the
intimation of the suit to other person and therefore, if it is in person, it is most
preferred. Wherever practicable, the summons should be served to the
defendant in person or to his authorized agents;
o Where the defendant is absent from his residence at that time of service of
summons and the likelihood of him being found at his residence within a
reasonable time is not clear then the summons may be served to any male
adult member or otherwise to a female adult member of the defendant’s family
residing with him. A servant of the house cannot be said to be a family
member. (explanation of Rule 15)
o In a suit relating to any business or work against a person not residing within
the territorial jurisdiction of the court issuing such summons, it may be served
to the manager or authorized agent carrying out business on his behalf.
o In a suit for immovable property, if the service of summons cannot be made
on the defendant personally, and the defendant has no authorized agent then
the summons may be served to any other agent who is incharge of such
property.
o Where there are two or more defendants, service of summons should be made
on each defendant individually.
 Service by courts [Rule 9]:
o summons to the defendants who are residing within the jurisdiction of the
court shall be served the summons through court officers or through any
approved courier service. It may even be served via registered post, speed
post, fax, messages, email service or through any other means of transmission.
o Where the defendant is residing outside the jurisdiction of the civil court, the
summons shall be served through an officer of the court within whose
jurisdiction the defendant resides.
 o The court shall treat refusal of acceptance of summons as a valid service of
summons.
 Service by plaintiff Rule 9A: the court may also permit service of summon by the
plaintiff in addition to service of summons by the court. [Salem Advocates Bar
Association case]
 Substituted service [Rule 17, 19, 20]: the service of summons by a court which is
distinct from the ordinary mode of service and was approved by the court.
o Where the defendant or his agent refused to sign the acknowledgment or
where the service officer after due and reasonable diligence cannot find the
defendant at his residential or business premises and there is no likelihood of
him being available within a reasonable time, the service of summons can be
made by affixing a copy of the summons on the outer door or some other
conspicuous part of the residential or business premise of the defendant. In
such situations the court will ask the service officer to give an affidavit of the
same and upon due satisfaction, the court may declare such affixing as the
valid service of summons.
o The court is not able to trace the correct location even. Where the court is
satisfied that there is enough reason to believe that the defendant avoids the
service of summons or due to certain reasons it cannot be delivered through
ordinary mode, then the service may be effected by affixing the copy of
summons in some conspicuous place in the court house and also upon some
conspicuous part of the house in which the defendant is known to have last
resided, carried on business, or personally worked for gain or any other
manner which the court thinks deem fit.

Written Statement [order 8]

Special rules of defence in written statement:

 The defendant may bring new facts or such actions which make the suit either non
maintainable or declare it as void or voidable in law. The purpose of this rule is to
give an advance notification of the additional grounds relied upon by the defendant to
the plaintiff in order to substantiate the cause of justice and convenience.
 The denials must be specific in nature where each allegation of facts must be
expressly accepted or denied in writing.
 The language of denial should not be vague or evasive as in the case of damages or
for recovery of money, the defendant should categorically express whether he has
received the sum or any part of the sum thereof.
 Every allegation of facts in the plaint if not denied specifically, shall be taken to be
admitted in the eyes of the court except against a person who was under disability
(like law o f limitation, suit for ceiling of immovable property without informing the
affected party as he did not received the summons for demolition of his property
[physical disability]) and may further be required to be proven by the same party.
 Where the defendant relies upon several grounds for defence or raises an issue of set
off or counter claim based on distinct facts, they should be stated separately or
distinctly in the written statement.
 Any new ground of defense which has arisen after the institution of the suit or
presentation of the written statement should be specifically pleaded by the defendant
 in his written statement and for the same the court is empowered to take necessary
actions.
 No pleading after the written statement of the defendant can be filed other than by
way of set off or counter claim. This rule is however subject to the discretion of the
court.
 If the defendant fails to present his written statement within the time permitted or as
fixed by the court, the court may pronounce the judgment against him or any such
order in relation to the suit as it deems fit. It may declare the matter ex parte. In the
case of Balraj Taneja vs. Sunil Madan,37 the supreme court held that the court is not
supposed to act blindly upon the admission of the facts made by the defendant in his
written statement, nor should the court proceed to pass the judgment blinding, merely
because a written statement has not been filed by the defendant traversing the facts set
out by the plaintiff in his plaint. In such a case, the proposition should be covered by
the expression ‘the court may in its discretion require any such facts to be proved’
used in sub rule 2 of rule 5 of order 8 for substantiating the cause of justice.

Set off [order 6]: a cross claim setup by the party to offset the original claim. It is an
extension of debts of which two persons contesting the matters are reciprocally credited to
each other. Where there are mutual debts mutual debts between the plaintiffs and the
defendant one debt may be settled against the other. The plea of setoff is a plea whereby the
defendant acknowledges the justness of the plaintiff’s claim but sets up another demand of
his own to counter balance the demand of his own against the demand of the plaintiff
either in whole or in parts.
The law recognizes two types of set off, order 8, rule 6 expressly deals with Legal setoff.
However it does not take away the power of the court to allow such adjustment independent
of the provision of the rule 6, order 8 which is referred as equitable se off:
Differences

 Legal setoff should be for ascertained or specific sum of money whereas equitable
setoff may be allowed even for an uncertain sum of money.
 Legal setoff can be claimed as a matter of right and the court is bound to entertain and
adjudicate upon it, whereas equitable setoff cannot be claimed as a matter of right and
the court is having a discretion leading to such adjudication.
 Under legal setoff it is necessary that the amount claimed as a part of set off must be
legally recoverable and must not be time barred whereas under equitable setoff, a
claim may be allowed even if it is time barred and only thing to be established is the
presence of a fiduciary relationship between the parties.
 A legal setoff requires a court fees to be paid whereas for equitable setoff there is no
requirement of a payment of court fees.
Counter claim [Rule 6a to 6g, Order 8, introduced in 1976]: counter claim may be defined as
a claim by the defendant in a suit against the plaintiff. It is a claim independent of and
separable from the plaintiff’s claim which can be enforced as a cross action in favor of the
defendant against the plaintiff.

37
AIR 1999 SC 3381.
In Lakshi Das vs. Nana Bhai38 the SC observed the scope of counter claim for the first time
and held that the question before the court is to consider on principles as to whether there is
anything in law statutory or otherwise, which precludes a court from treating a counter claim
as a plaint in a cross suit. The issues of counter claim are to be dealt with the question that
whether they have to conform with all the requirements of plaint mentioned under CPC if
treated as a plaint and there could not be a legal objection to the counter claim being treated
as plaint under the law and therefore to hold the otherwise would be to erect what in
substance is a matter of defect in a form of pleading into an instrument for denying what
justice manifestly demands.
Object: The provision relating to counter claim thus seeks to save the time of the courts,
exclude inconvenience to the parties to such litigation and decide all such disputes between
the parties avoiding unnecessary multiplicity of judicial proceedings and prolonged trials.39
Modes to setup of counter claim:

 In the written statement itself filed under Order 8 rule 1;

 By amending the written statement with the leave of the court and setting up a counter
claim;
 In a subsequent proceeding or pleading under Order 8 Rule 9 itself.
Who may file a counter claim: a defendant may file a counter claim against a plaintiff and
incidentally alongwith the plaintiff, the defendant may also claim relief against co-defendant
in the same suit. But a counter claim solely against the co-defendant is not maintainable.40
Effects of counter claim: the counter claim of the defendant will be treated as a plaint and the
plaintiff has a right to file a written statement in answer to the counter claim of the defendant.
The counter calim of the defendant will be treated purely on the merits and on the principles
governing the plaint and the plaintiff has to file a reply to the counter claim which shall be
treated as his written statement and all the rules governing the aspects of plaint are applicable
on the counter claim.
The difference between set off and counter claim:

 Set off is a statutory defence to a plaintiff’s action whereas a counter claim is

substantially a cross action suit.
 Set off must be for an ascertained sum of money or it must arise out of the same
transaction whereas a counter claim need not arise out of a same transaction;
 Set off is a ground of defence to the plaintiff’s action which would afford an answer
to the plaintiff’s claim in toto or pro tanto (in a proportion). Whereas the written
statement is a weapon of offence which enables the defendant to enforce a claim
against the plaintiff effectually as an independent action.
 In case of a legal set-off the amount must be recoverable at the date of the suit, while
in case of counter claim the amount must be recoverable at the date of filing of written
statement.
 When the defendant demands in a plaintiff’s suit an amount below or upto the claim
of the suit, it will be treated as set off in a strict sense but when the claim is for a
larger amount, the excess claim raised may be treated as a counter claim.

38
AIR 1964 SC 11.
39
Ramesh Chandra vs. Anil Panjwani, AIR 2003 SC 2508.
40
Rohit Singh vs. State of Bihar, AIR 2007 SC 10
Appearance and non-appearance of parties:
Rule 1 and 12:
Chota Lal vs. Amba Lal Hargoban: Bombay high court held that where a party arrives late for
his suit or application, he is entitled to restore his suit or application on the basis of payment
of costs.
Currin Bhai vs. N H Moos: it is difficult to agree with the principle developed in the case of
chota lal. If such a rigid rule is laid down, it might mean that the defendant will successively
prevent his suit from ever being heard and for all his misconduct, all he has to do is pay a cost
at a later stage for restoration of the matter altogether and that is something which the court
obviously cannot allow to happen.
Lakshi Commercial Bank ltd. vs Hans Raj: the underlined principles is that until the suit is
finally decided a party has a right to come in and defend the suit and this rule should be
liberally construed.
Arjun Singh vs. Mohindra Kumar (Supreme Court, AIR 1964 SC 993): one has to give valid
reason for restoration, payment of cost is not sufficient.
It is a fundamental rule of law of procedure that a party must have a fair and reasonable
opportunity to represent his case and for that purpose he should have a prior notice of legal
proceedings being initiated against him. If the summons is not duly served which is a
condition precedent to a fair trial or it does not give him sufficient time to represent his case
sufficiently, then no decree can be passed against him.41
Ex parte orders:
Ex parte is a decree passed in the absence of the defendant. Where the plaintiff appears and
the defendant does not appear at the time when the suit is called for hearing the court may
hear the suit ex parte and pass a decree against him. Such a decree is neither null and void nor
inoperative but is merely voidable subject to the ground of availability of sufficient cause or
legal reasons.42
Remedies against the order of ex parte:

 To apply to the court by which such decree is passed to set it aside under Order 9 Rule
13 of CPC;
 To prefer an appeal against such decree under Section 96(2) or to file for revis0ion
under Section 115 of CPC where no appeal lies;
 To apply for review, order 47 Rule 1;
 To file a suit on the ground of fraud.43
The above remedies are concurrent and they can be prosecuted simultaneously or
concurrently and where two remedies are resorted to one cannot be said to be operating in
derogation of other.

41
Begum Para vs. Luiza Matilda Fernandez. 1984 2 SCC 395.
42
Pandurang Ramchandra vs. Shanti Bai Ramchandra, AIR 1989 SC 2240.
43
P Kiran Kumar vs. A S Khadar, AIR 2002 SC 2286.
Setting aside ex-parte rule 13: an order of ex parte has been passed may apply for setting it
aside and where there are more than one defendants then anyone of them can apply to set it
aside.
Where the application will lie: an application to set aside the ex parte order may be made to
the court which has passed the ex parte order and where such decree is confirmed by a
superior court then an application may lie before such superior court.
The grounds for setting aside the order of ex parte:

 If the summons were not duly served and the defendant satisfied to the court for the
same then it acts as the valid ground for setting aside the ex parte order;
 Availability of a sufficient cause which has prevented his appearance in the court: the
expression sufficient cause is not defined anywhere but the party should not be
deprived of hearing unless there has been something equivalent to misconduct or
gross negligence on his part.
 Necessary materials should be placed before the court to show that the applicant is
vigilant and diligent, whether or not there is a sufficient cause would depend upon
facts and circumstances of the cases, if there are delaying tactics and non cooperation
on part of the parties, the party cannot seek indulgence of the court. The test to be
applied is whether the party honestly intended to remain present at the hearing of the
suit and did his best to do so.44 The language of the above rule is plain, express and
unambiguous and the grounds mentioned therein are exhaustive. E.g. of sufficient
cause: the burden of proving sufficient cause for non appearance lies on the
defendant and it is enough to prove to that he attempted to remain present, when the
suit was called for hearing. Certain causes have been held to be sufficient causes for
the absence of defendant which are :
o The bonafide mistake as to the date of hearing;
o Late arrival of train or other modes of transportation;
o Sickness of the counsel;
o Fraud of the opposite party;
o Negligence of next friend or guardian in case the defendant is minor;
o Death of a relative of a party;
o Strikes of advocates
 No sufficient cause example:
o Dilatory tactics, delaying tactics;
o Negligence of party;
o Counsel being busy in some other court;
o Absence of defendant after the prayer of adjournment has been refused;
o Mere thinking that the case will not be called upon for hearing;
o Willful avoidance of taking part in court proceedings;

Remedy if ex parte order is passed:

 Appeal: an appeal lies against an order rejecting an application to set aside the ex
parte decree under Section 96(2). There is a conflict before the court that whether in
such cases the appellate court can only consider the decree passed by the lower court

44
Payal Ashok Kumar vs. Captain Ashok kumar, 1992 3 SCC 16; G P Srivastav vs. R K Raijada, 2000 3 SCC
54.
 on merits or whether the court can also consider sufficient grounds or reasons
attached with the non appearance of the party
 Revision: an order setting aside an ex parte decree is ‘case decided’ within the
meaning of section 115 which is subject to the revision of the court
 Review: since all the remedies against an ex parte decree are concurrent and
aggrieved party may file an application for review under Order 47 Rule 1.
 Suit: If all doors are closed, a suit for fraud may be filed. A suit to set aside an ex
parte decree is not maintainable, but if an ex parte decree is alleged to have been
obtained by the plaintiff’s fraud then the defendant can file a regular suit to set aside
such decree as fraud vitiate the solemn objective of justice.

FIRST HEARING OF THE SUIT [ORDER 10, 14, 15]:

First hearing of a suit means the day on which the court goes into the pleadings of the parties
for understanding their contentions. Presentation of the plaint is the first stage of the trial,
submission of written statement is the second stage and the third stage of the suit where
framing and settlement of issues in the presence of parties takes place, is called first hearing. 45
In this case, it was observed that the date of fist hearing is the date on which the court
proposes to apply its mind in the contentions of the parties to the suit and in the documents
filed by them for the purpose of framing of issues.
Object of first hearing: under order 10 rule 1, a the stage of first hearing the court will
ascertain whether the parties accept or deny the allegations of fact or law maid either in plaint
or written statement and if there is no possibility of settlement the case will be enlisted for
detailed hearing. Hence at the stage of first hearing the job of the court is to ascertain with
precision the proposition of law or fact on which the court may frame an issue and examine
the testimony of the parties.
Framing of issues [order 14, 1]: issues arise when a material proposition of fact or law is
affirmed by one party and denied by the other party. Each such material proposition so
affirmed or denied shall become the cause of a distinct issue.
Kinds of issue: rule 1 of order 14 provides that issues can be issues of fact, issues of law or
mixed issues of fact and law. Issues of law may relate to : the jurisdiction of the court, a bar
to the suit created by any law for the time being in force.
Importance of issues:

 it is the issues framed and not the pleadings of the parties that will guide the parties in
leading the evidences.
 The court cannot refuse to determine a point an issue has been framed and the
evidence were lead by the parties even if the same were not included in the pleadings.
 The court should not frame any such issue which does not arise in pleadings as it
helps the court from avoiding the deviation from the subject matter.
 Issues must be confined to material question of fact or law (facta probanda) and not
on subordinate facts or evidences by which the material facts are either proved or
disproved (facta probantia)
 One issue should preferably cover only one fact or law in dispute between the parties.

45
Siraj Ahmed vs. Prem Nath, AIR 1993 SC 2525.
  If the case goes for appeal, the appellate court is under duty to decide the issues
settled for trial and not on the pleadings of the parties. 46 It was held in this case that
issues are the backbone of the suits which act as the lamp post for enlightening the
parties to the allegations, the trial court and even the appellate court as to what is the
actual controversy, what is the evidence and where lies the actual truth.
Materials for framing issues {Rule 3}

 Allegation made on both by the parties or persons presenting on their behalf or

through the pleaders appearing for the parties
 Allegations made in the pleadings or in answer to the interrogatories
 Documents produced by the parties
Disposal of the suit [order 15]:
Court may pronounce the judgments on the first hearing:

 Where the parties are not at issue or of any question of fact or law
 Where there are two or more defendants and anyone of them admits to the claim of
the plaintiff, the court may pronounce the judgment against such defendants and a suit
may proceed against other defendants
 Where the summons has been issued for the disposal of the suit and either party fails
without sufficient cause to produce the evidence on which he relies
 Where a party or his pleader makes certain admission of the facts which are sufficient
enough to dispose of the case
 Where after the issues have been framed the court is satisfied that no further argument
or evidence is required
Discovery, inspection [order11], admission (read by own) [order 12] and production,
impounding and return of documents [order 13] and affidavits [order 19]:

 Discovery and inspection:

o Discovery means to compel the opposite party to disclose what he has in his
possession. It is a compulsory disclosure by a party to an action of facts or
documents on which the other side wishes to rely. After the settlements of the
issues, a party to the suit may require information from his adversary as to
facts or documents in possession of such party through putting up a series of
questions which is called interrogatories. The judge will go through these
questions and if he considers them proper he will compel the other side to
answer them on oath before the trial, this particular submission on oath is
called discovery of facts.
 Interrogatories [Rule 1 to 11]:
o Object
 to know the nature of the case of the opponent
 To support his own case either by directly obtaining admission or
indirectly by impeaching or destructing the case of his opponent.
o Who may administer interrogatories
 It may be administered by one party to a suit to the other party which
may be the case that a plaintiff may ask interrogatories to the defendant
and vice versa
46
State of Gujarat vs. Jaypal Singh, Jaswant Singh Engineers and Contractors
  Interrogatories may be addressed to a co-plaintiff by plaintiff and to
the co-defendant by the defendant but it is necessary that all of them
are parties to the suit.
o Rules for framing interrogatories:
 Interrogatories may be administered in writing with the leave of the
court and subject to the limitations as may be prescribed by the court
 The particulars of the interrogatories proposed to be delivered should
be submitted to the court which shall decide within the ten day from
filing of such application
 Interrogatories may be administered by a plaintiff to a defendant
provided that there is some question or issue between them in the suit
or proceedings
 No party can deliver more than one set of interrogatories without the
order of the court
 No leave may be granted to the plaintiff for administering the
interrogatories until the written statement is filed by the defendant or
the time to file the written statement has expired and similarly a
defendant may not file interrogatories before filing his written
statement
 Where a party to the suit is corporation or body of persons,
interrogatories may be administered to a officer or member of such
corporation
 Where a party to a suit is minor or lunatic person, interrogatories may
be administered to his next kin
 Interrogatories and an affidavit in support to such interrogatories must
be delivered to the court in prescribed form
 Interrogatories must relate to or must have a reasonable nexus with the
subject matter of the suit
 Interrogatories should be submitted the court within the ten days of
service of such interrogatories or the time as fixed by the court
 Interrogatories must relate to the question of fact and not the
conclusion or inferences of the law
 Interrogatories may be objected on the ground that they are scandalous,
vexatious, and irrelevant or unreasonable or not in bonafide intention
in relation to the subject of the suit
 The cost of the interrogatories shall be borne by the party
administering them but the court may also order the party who has
defaulted to answer such interrogatories to pay the cost
 Any party to the trial of the suit may use in evidence any one or more
of the answers or any part of the answers thereof in support of his
claim to the suit
 Where any person fails to comply with an order to answer
interrogatories his suit can be dismissed if he is a plaintiff or his
defence may be struck off if he is a defendant.

Interim orders
Interim orders means those intervening order which are temporary in nature and remain in
force for the time being during the pendency of a suit or proceedings which do not finally
determine the substantive rights and liabilities of the parties in respect to the subject matter of
the suit or proceedings.
Types of interim orders:
o Payment in court [order 24]
o Security in costs, order 25
o Commissions, order 26
o Arrest before judgment, order 38
o Attachment before judgments, order 38
o Temporary injunction, order 39
o Receiver, order 40

Appointment of commissions [Sections 75-78 read with Order 26]: it deals with the power of
the court to issue commission which is discretionary in nature and can be exercised by the
court for doing full and complete justice between the parties. it can be exercised by the court
either on the application of the parties or suo moto.
Purpose:

 To examine witnesses: the court has a discretion to relax the rule of attendance of
witnesses on the ground of inability of the person to attend the court relating to
sickness or infirmity or his presence may be detriment to the public interest. The court
may issue commission on the following grounds:
o If the person to be examined as a witness resides within the local limits of the
court’s jurisdiction and is exempted under the code from attending the court or
he is suffering from sickness or physical infirmity making him impossible to
attend the court or in the interest of justice, for expiditious disposal of the
case- a commissioner is deemed necessary.
o If the person resides beyond the local limits of the court’s jurisdiction
o If he is about to leave the jurisdiction of the court
o If the person is a government servant and in the opinion of the court his
attendance may not be without detriment to public service.
o If the person is residing out of india and the court is satisfied that his presence
is necessary
 To make local investigations: the court may in a suit appoint a commission to conduct
local investigation and report thereon for the purpose of
o Elucidating any matter in dispute
o Ascertaining the market value of the property for which the calculation of
mesne profits or annual net profits is required
o The object of local investigation is not to collect evidence which are
admissible directly in the court but to obtain the evidences from its very
peculiar nature which is available or found only on the spot.
 To adjust accounts: in any suit where examination or adjustment of accounts is
deemed necessary, the court may direct a person to act as commissioner for carrying
out the instructions of the court and report thereon.
 To make partitions (at the time of executions): where a decree of partition of
immovable property has been passed, the court may issue a commission to carry out
the modes of partition according to the rights declared in the decree and submit a
report thereon to the court
  To conduct sale of the property: where in any suit it becomes necessary to sell a
immovable property which is already in the custody of the court and the preservation
of the same becomes difficult pending the final determination of the rights, court may
appoint the commission if it deems fit directing him to conduct such sale and report
thereon.
 To perform ministerial act: clerical works
 Powers of the commissioner [Rule 16-18, Order 26]:
o Summon or procure the attendance of the parties and their witnesses and
examine them
o Call for examining the documents
o Enter into any land or building mentioned thereon in the order
o Proceed ex parte if the parties do not appear before him even after repeated
summons and reminders
 Who will take care of the expenses: they may be taken care of by the party asking for
such appointment by depositing the relevant expenses in the court.
Arrest before judgment [order 38, rule 1 - 4]: under the special circumstances the court can
order for arrest of a debtor where the creditor moves an application suggesting that the
execution of the decree may be delayed on account of the debtor or the party absconding
from the local jurisdiction of the court. The object of this order is to enable the plaintiff to
realize the amount of decree eventually if passed in his favor and to prevent any attempt on
behalf of the defendant to delay the cause of the justice or to delay the execution of the
decree.
Grounds of the arrest are:

 The defendant is having an intent of delay or to avoid the court process or to obstruct
the judicial processes has absconded or left the local limits of the jurisdiction of the
court or is about to abscond or leave the local limits or has disposed of or removed the
property from the local limits of the court or any part of the property thereon.
 The defendant is about to leave India under circumstances affording reasonable
opportunity or apprehension that the plaintiff may not be able to realize his claim or
the defendant may delay the execution of the suit.
 The plaintiff making a request for arrest of the defendant before the judgment shall
have to supply these grounds on the affidavit but the defendant will not be arrested if
he is entrusting his task to his manager or agent for executing the decree. Even after
fulfilling the above grounds the order of arrest may not be passed as it rests
completely within the discretion of the court.
 Conditions precedents before arrests:
o The plaintiff’s suit must be bonafide and his cause of action must be
unimpeachable
o The court must have a reason to believe on the basis of adequate materials that
there is an urgency to exercise this extraordinary power and the same lies
within the ambit of the court.

Complete it by urself
Execution of decrees [Section 38, order 21]: it means the enforcement and giving effect to a
judgment or order of the court so as to enable the decree holder to realize the fruits of the
decree. The execution is deemed to be completed when the decree holder or the judgment
creditor gets money or other things award to him by judgment or decree. In Ghanshyam das
vs Anant kumar Sinha, AIR 1991 SC 2251, it was held that the remedy under the civil
procedure code is of superior judicial quality than what is generally available under other
statutes and the judge being entrusted exclusively with administration of justice is expected to
do better. CPC contains elaborate and exhaustive provisions dealing with all the aspects of
execution providing effective remedies not only to judgment debtors but also to claimant
objectors.
The courts which may execute the decree: section 38 enacts that a decree may be executed
either by the court which passed it or by the court to which it is sent for execution. Section 37
defines the expression ‘court which passed the decree’ and the following courts fall under this
expression:

 The court of first instance which actually pass the decree;

 The courts of first instance in case of appellate decrees;
 Where the court of first instance has ceased to exist, the court which would have
jurisdiction to try the suit at the time of execution;
 Where the court of first instance has ceased to have jurisdiction to execute the decree,
the court at the time of execution would have had jurisdiction to try the suit
In Ghantesher vs. Madan Mohan AIR 1997 SC 471, it was held that a decree may be
executed either by the court which passed it or by the court to which it is send for execution.
In Merla Ramanna vs. Nallapa Raju AIR 1956 SC 87, it was held that a court which has
neither passed a decree not a decree is passed for execution, cannot execute it. it is settled law
that the court which actually passed the decree does not lose its jurisdiction to execute it by
reason of the subject matter thereof being transferred subsequently to the jurisdiction of
another court.
Transfer of decree for execution [Section 39-42 read with order 21 rule 3-9:] as a general
rule, the court which pass the decree is primarily the court to execute it but such court may
send the decree for execution to another court either suo moto or at the application of the
decree holder if following grounds exists:

 The judgment debtor actually and voluntarily resides or carries on business within the
local limits of the jurisdiction of such court;
 The judgment debtor does not have property sufficient to satisfy the decree within the
local limits of the jurisdiction of the court which pass the decree but has property
within the local limits of the jurisdiction of such other court
 The court directs the sale or delivery of immovable property situated outside the local
limits of the jurisdiction of such other court;
 The court which pass the decree considers it necessary for any other reason to be
recorded in writing that the decree should be executed by such other court
In lakshi narayan vs suraj kumar baksh and Mohan deo Prasad vs. Ram Lochan, it was
held that the provision of section 39 stating the grounds for transfer of execution proceedings
are not mandatory and the court has the discretion in the subject matter which will be
judicially exercised by it.
General principles:

 Territorial jurisdiction is a condition precedent to a court executing a decree in respect

of property situated entirely outside its local jurisdiction.
 An executing court cannot go behind the decree; it must take the decree as it stands
and execute it according to its terms. It has no power to vary or modify the terms or to
question its legality or correctness because of the reason that the legality of the main
proceedings cannot be brought into question through collateral proceedings and
therefore no enquiry on this ground can be initiated.47
 In case of inherent lack of jurisdiction, the decree passed by the court is a nullity and
its invalidity could be setup wherever and whenever it is sought to be enforced.
Whether in execution or in the main proceedings.
 Inherent lack of jurisdiction however must appear on the face of the record and hence
if the decree on the face of it discloses certain material on the basis of which the court
could have passed the decree, it would be valid and in such cases the executing court
must except and stand by the decree as it receives.48
 A decree which is otherwise valid and executable does not become inexecutable on
the death of the decree holder or of judgment debtor and can be executed against his
legal heirs.49
 When the terms of the decree are vague or ambiguous, an executing court can
construe the decree to ascertain its precise meaning for which it may refer to the
judgment or even the pleadings of the parties.50
 An executing court can go into the question of the executability or otherwise of the
decree and consider whether by any subsequent developments the decree has seized to
be executable according to its present terms.51
 A decree which becomes inexecutable by operation of law may become executable by
virtue of a subsequent amendment in the statute and can be executed after such
amendment.52
 The executing court has the power to mould the relief granted to the plaintiff in
accordance with the changed circumstances.53
 The court executing the decree transferred to it has the same powers in executing such
decree as if it had been passed by itself.54

47
Bhanwar Lal vs. Universal Heavy Mechanical Lifting Enterprises.
48
Nagin Das vs. Dalpat Ram; K K Chari vs. R M Sashadari.
49
Pradhati Devi vs. Mahadeo Prasad.
50
Dhavan Vaja vs. Solanki Hanuji Khodaji.
51
Jai Narayan vs. Kedar Nath.
52
Dularey Lodh vs. ADJ Kanpur.
53
yashPal singh vs. ADJ.
54
Mahadeo Prasad vs. Ram Lochan.
Contents
Doctrine of res subjudice (Section 10):.........................................................................................33
Scope of Section 10...................................................................................................................33
Object of section 10...................................................................................................................34
Condition for application for section 10:...................................................................................34
Inherent power of the court [Section 151].................................................................................35
Effect of contravention of section 10.........................................................................................35
Doctrine of res judicata:.................................................................................................................35
Constructive Res Judicata..........................................................................................................35
Forward construction company v. prabhat Mandal...............................................................36
Devi lal modi v STO..............................................................................................................36
Matters which are collaterally or incidentally in issue:.............................................................37
isher Singh v sarvan singh.....................................................................................................37
Res judicata between co-defendants:.........................................................................................37
Res judicata between co-plaintiffs.............................................................................................37
Proforma Defendant...................................................................................................................37
FOREIGN JUDGMENT [SECTION 13 AND 14 OF CPC].........................................................38
Object:........................................................................................................................................38
Principle of reciprocity..............................................................................................................38
Binding nature of such foreign judgments.................................................................................39
Section 14..................................................................................................................................41
PLACE OF SUING.......................................................................................................................42
Scheme:......................................................................................................................................42
Pecuniary jurisdiction:...............................................................................................................42
Nature and scope: section 15.....................................................................................................42
Object:........................................................................................................................................42
Mode of valuation:.....................................................................................................................43
Powers and duties of the court in such valuations:....................................................................43
Territorial jurisdiction:...............................................................................................................43
Forum shopping.........................................................................................................................45
ESSENTIALS OF THE SUIT.......................................................................................................46
Parties to the suit (Order 1):...........................................................................................................46
Joinder of parties........................................................................................................................46
Joinder of plaintiffs (rule 1):......................................................................................................46
Joinder of defendants (rule 3):...................................................................................................47
Necessary party..........................................................................................................................47
A proper party............................................................................................................................47
 Non Joinder and misjoinder of parties [Rule 9]:.......................................................................48
Objections as to non joinder or misjoinder of the parties: rule 13, order 1:..............................48
Adding or substituting or striking out parties Rule 10 Order 1: Rule 10(1):.............................48
REPRESENTATIVE SUIT [ORDER 1, RULE 8].......................................................................51
Object of representative suit......................................................................................................52
Conditions to be fulfilled to make a suit representative............................................................52
Frame of the Suit (Order 2):..........................................................................................................53
Order 2 rule 2 and res judicata...................................................................................................54
Conditions of application of order 2 rule 2................................................................................54
Tests laid down in Mohammed Khalil vs. Mahboob Ali...........................................................55
Order 4: institution of the suit........................................................................................................56
Civil Pleading (Order 6)................................................................................................................57
Order 6, Rule 1:.........................................................................................................................57
Objects of the Pleadings............................................................................................................57
Basic Rule for Pleadings (Order 6, Rule 2):..............................................................................58
 Virendra lal vs. stapal singh............................................................................................59
R M Shashadri vs. G BaSant Pai...........................................................................................59
 Charan lal Sahu vs. Gyani Zail.......................................................................................59
Other rules of pleadings:............................................................................................................60
 Dishnu dev v. sarogani rai...............................................................................................60
Alternative pleadings.................................................................................................................61
Inconsistent pleadings................................................................................................................62
How to construct pleadings.......................................................................................................62
Striking out pleadings (Rule 16, Order 6):................................................................................63
Rule 14-15, Order 6: signature and verification of pleadings...................................................63
Amendment of pleadings [rule 17-18].......................................................................................64
Leave to amend when can be granted:.......................................................................................65
Leave to amend when can be refused:.......................................................................................65
Substantive law: the function of substantive law if to define, create or confer substantive legal
rights or legal status or to impose and define the nature and extent of legal studies.
Procedural law: the function of procedural law is to provide the machinery or the manner in
which the legal rights, status or duties may be enforced or recognized by a court of law or any
others properly constituted tribunal.
History of Cpc

 Before 1859, no codified procedural law and the court used to decide the matter on
their own terms.
 Due to the mutiny of 1857, the crown introduced CPC in 1859 in the small causes
court and presidency courts.
 In 1877, CPC was largely amended and a new CPC was brought in.
 In 1882, again new CPC was introduced by making tremendous changes.
 Through common dialogue with Indians, new CPC in the year of 1908 was introduced
which was enforced on all courts. It was simplified version and provided for speedy
trials.
 In 1951, a minor amendment was made to make CPC more sort of Indian law.
 In 1976, CPC was further amended.
Objects of CPC 1908

 A litigant should get a fair trial in accordance with the accepted principles of natural
justice.
 Every effort should be made to expedite the disposal of civil suits and proceedings so
that justice may not be delayed.
 The procedure should not be complicated and should to the extent possible ensure a
fair deal to the poorest sections of the community who do not have the means to
engage a pleader to defend their cases.
Objects of amending CPC in 1976:

 Inclusion of doctrine of res judicata.

 Power to transfer proceedings from one high court to another high court is given to
Supreme Court. [jaylalitha Case, from Tamil Nadu to Karnataka]
 Freedom form attachment of a portion of salary to all salaried employees is granted.
 Provision of giving notice under §80 before the institution of the suit against the
government for a public office was made less stringent so as to facilitate justice
delivery.
 Restriction was imposed on the right of appeal and revision. Appeal is merely a
statutory provision.
 Provisions were made to ensure that written statement and documents are filed before
delay.
 Important changes were made to provide relief to poorer sections of the society.
Letters patent: an appeal can move laterally within one hierarchy court.
But even after this, a government report suggested that the average time taken for disposal is
5-6 years and cases are not fastly resolved. Under the chairmanship of Justice Mallimath, a
committee was formed which provided for the faster disposal of cases.
The Supreme Court even pointed out the same things in the case of Salem Bar Association I,
where SC focused that essential amendments are needed to be undertaken.
The amendments of 1999 and 2002 were implemented but a new scope was created through
grant of discretionary power to the judges for final say. The reason being the protest from the
advocates on genuine grounds of justice delivery and Salem II case.
Major amendments brought in through 1999-2002 amendments:

 In several matters such as issuance of summons, filing of written statement,

amendment of pleadings, production of documents and examination of witnesses a
time limit is prescribed. It was a matter of self imposed duty on the courts. A limit of
7 days was made but it was further diluted through the Salem II case and if there are
genuine grounds of delay, such delay could be accepted.
 A new provision for settlement of disputes outside the court has been introduced. Out
of the bounds of the court technicalities. The court may even appoint an appropriate
person for the settlement of the dispute outside the court and after the finality of the
settlement, the settlement has to be presented in the court and a decree would be issue
on those grounds so that any of the parties may not revert the matter back to the court
after some time.
 The number of adjournments has been restricted. Initially it was restricted to 3.
 A provision of recording the evidences by the court appointed commissioner was
introduced to save the time. Qualified to be a lawyer, is neutral to the matter and
knows the court procedure. Such person has to be submit the report of all his findings,
evidences and witnesses statements to the court and have to authenticate the evidences
produced in the court. After the dilution, the advocates can ask the court not to
appoint the commissioner and court may exercise discretion by not appointing the
commissioner.
 Endless arguments were aimed to be shortened by empowering the court to fix a time
limit on oral arguments and by permitting to place written arguments on record by the
parties. Ayodhya case, SC ordered the special CBI court to complete the hearing
within 2 years by limiting the arguments. Dilution: The court may fix and on the
ground of genuine issues the court may extend the pre-fixed time line. Therefore, no
rigid provision was placed.
 The scope of first appeal, second appeal, letters patent appeal and revision has been
curtailed. On what grounds the appeal is preferred, such grounds should be
exceptional and can the same question be raised before the appellate court. And even
if some argument is not presented in a lower court and such point is raised in the
appellate court, such arguments are restricted. Revision is only restricted to deal with
the error present in the existing judgment.
If any point is dealt by CPC, then CPC becomes exhaustive and have a greater say. In other
cases, provision of CPC may not be applied because if applied it can make the matters
complicated before such matters were deliberately not included in CPC so as to ease the
justice delivery. [The code of civil procedure is exhaustive on matters which are specifically
dealt by it but it is not exhaustive on those points which are not specifically dealt or intended
to be touched upon therein. Manohar Lal v. Seth Hiralal AIR 1962 SC 527].
Important definitions:

 Decree: the decree is defined under S 2(2) of CPC where it says that decree means the
formal expression of adjudication by the court which conclusively determines all or
any of the matters in controversy in the present suit which may either be preliminary
or final. It shall be deemed to include the order of rejection of a plaint but shall not
include- any adjudication from which an appeal lies as or in the form of an appeal
from an order (appealable order), any order of dismissal of suit for default.
Essential conditions of a decree:
o There must be adjudication: we essentially include judicial or quasi judicial
adjudication. For the purpose of decree, adjudication shall mean judicial
determination of the matter in dispute. Therefore, a decision on a matter of
administrative nature or an order dismissing the suit for default of appearance
by parties cannot be termed as a decree. Similarly and order passed by an
officer who is not a court or not vested with any kind of judicial power by law
is not a decree. [Deep Chand v. Land Acquisition Officer, AIR 1994 SC
1901]
o Such adjudication must be there in a suit. Suit is not defined in cpc. It was
defined in the case of Hansraj Gupta v. Official liquidators of Dehradun
mussoire electric tramway company lmt. [AIR 1933 PC 63] where the
court stated that, any court proceeding in cpc initiated by the presentation of a
plaint. The word suit ordinarily means a civil proceedings instituted by the
presentation of a plaint. Thus every suit has to be instituted by presenting a
plaint, and without being a suit, there cannot be a decree.
o Right of parties in controversy are to be determined: substantive rights and not
procedural rights. For any kind of procedural order, its merely a form of order
and not a decree. Such procedural rights would be exercised by submission of
certain applications. Whereas the substantive rights are determined through the
merit and subject matter of the case. The word rights, for this purpose
essentially means, substantive rights of the parties and not merely a procedural
right. [Dattatraya v. Radha Bai AIR 1921 Bom 220]. The substantive rights
of the parties, includes any rights relating to the status, jurisdiction, frame of
the suit etc. thus an order for dismissal of a suit for default of a appearance or
an order of refusing the leave to sue in informa pauperis etc. do not determine
the substantive rights of the parties and hence are not construed to be a decree.
In the conditions where procedural rights are even determined with substantive
right, such orders would even be called decree.
o Conclusive determination of rights: the court has finally decided one right in a
suit and that determination remains final remains final for the entire suit in that
particular court. If multiple rights are to be determined, determination of every
single rights would be called as decree even though all the rights may not be
determined at that stage. The determination must be final and conclusive as
regards to be court which passes it. [Narayan chandra v. Pratirodh Sahini].
An inter locutory order which does not decide the rights of parties finally like
refusal of adjournment etc. are not decrees because they do not lead to any
conclusive determination on merits of the case.
o Formal expression: there must be a formal expression of such adjudication
which means that all the requirements of the form or suit must be complied
 with and it must be deliberate in manner and should be according to the
procedure prescribed by the law. In case of formal expression it is the decree
which follows the judgment and must be drawn up separately. Shakultala
devi v. kuntal kumari. Operative order acts as judgment when multiple
decrees are passed before the actual judgment.
Order or decisions which are decrees:

 Order of abetment of suit: decision of legal ground regarding the fact that the parties
are having certain rights or not. Order of integration and disintegration of rights even
are called decrees. Decision on the merits of the case which carries the effect of
conclusive determination of right.
 Dismissal of appeal as time barred: the right of reaching to the court is exhausted and
therefore this decision acts as the conclusive document of the appeal. Therefore, the
original order of the lower court stands.
 Dismissal of suit or appeal for want of evidence or proof: these kind of matters and
cause of actions are mere claims as no evidence are produced. And this dismissal is
res judicata so that they the parties cannot go to court of the same level. Even such
decisions are being made on merits of the case, therefore it have the effect of a decree.
and this has an indirect effect on the other party as this order allows the defendants to
continue to do whatever they were doing before this suit.
 Order holding appeal not maintainable: the decision of lower court stand and the
parties are directed to do whatever they were doing. Indirect conclusive decision on
the rights of the parties.
 Order holding that right to sue does not arise: as it mere statutory right
 Order holding that there is no cause of action:
 Order refusing one of the several reliefs: the reliefs which are rejected cannot be
raised in court again and therefore such decision is also final.
Decisions which are not decrees:

 Dismissal of appeal for default: no merit of the cases discussed. But ex parte decisions
are decrees.
 Appointment of commissioner to take accounts: mere collection of evidences. Subject
matter of the suit is not in any way being decided. Just the submission of report
regarding his studies.
 Return of plaint for presentation to a proper court:
 Rejection of application for Condonation of delay: it not the discussion of the merit of
the case.
 Order directing assessment of mesne profits.
Preliminary decree and final decree
A preliminary decree is one which declares the rights and liabilities of the parties leaving the
actual result to be worked out in further proceedings as a result of inquiries conducted
pursuant to the preliminary decree, the rights of the parties would then be fully determined
and a decree is passed in accordance with such determination which is final. Both the decrees
has to be in the same suit. A final decree may said to be final in two ways: 1. When the time
for appeal has expired without any appeal being filed against the preliminary decree or the
matter has been decided by the highest court 2. When the time for appeal has expired without
any appeal being filed against the preliminary decree and the matter stands completely
disposed of. [Shankar v. Chandrakant AIR 1995 SC 1211].
Preliminary decree: when an adjudication decides the rights and liabilities of the parties with
regard to all or any of the matters in controversy in this suit but does not completely dispose
of the suit, it is called as preliminary decree. it is only a stage in working out the rights of the
parties which are to be finally adjudicated by a final decree and till then the suit continues.
[Mool Chand v. Director, Consolidation AIR 1995 SC 2493]
The cpc provides for passing of preliminary decrees in following circumstance:

 Suits for possession and mesne profits, order 20 rule 12

 Suit for dissolution of partnership, order 20 rule 15
 Suit for partition and separate possession, order 20 rule 18
 Suits for sale of mortgaged property, order 34 rule 4 and 5
 Suit for redemption of a mortgage, order 34 rule 7 and 8. A court may pass a
preliminary in cases not expressly provided by CPC.
Situation where multiple preliminary decrees can be passes: e.g. 1 st and 3rd from above list.
Phool chand v. Gopal lal [AIR 1967 SC 1470] there is nothing in cpc which prohibits
passing of more than one preliminary decree if the circumstances justify the same and it may
be necessary for the court to do so. Limitation: but the above observation is restricted to
partition suits alone. Later on, the limitation was lifted and now it all depends on the
discretion of the Court which may decide it on the facts and circumstances.
Final decree: final decree is said to be final in two ways:
1. when within the prescribed period, no appeal is filed against the decree or the matter has
been decided by the highest court.
2. when the decree, so far as regards to the court passing it, completely disposes of the suit.
[Shankar v. Chandrakant 1995 3 SCC 413]
There can be more than one final decree. but it may defeat the essence of Cpc as multiple
appeals has to be made for multiple decrees, as it may make the procedure slow.
1. Gulsum Bivi v. Ahmadasa Rowther, AiR 1919 Mad 998: order 20, rule 12 and 18 was
challenged, the court held that: neither of these rules contemplates more than one preliminary
decree and one final decree in one suit. The cpc nowhere contemplates more than one final
decree in one suit. To have two final decrees and to call one decree final or the first one as the
final decree will be a misnomer as it will not be final.(disabling interpretations)
2. Kasi V. Ram Nathan Chettiar 1947 2 MLJ 523: the court observed that the question is
not whether cpc allows more than one preliminary decree or one final decree to be made but
whether the code contains a prohibition against the court in a proper case passing more than
one such decrees and the court took a divergent view and held that there could be more than
one preliminary and one final decree in a suit. (Negative Interpretation) (enabling
interpretation)
3. Shankar v. Chandrakant AIR 1995 SC 1211: it is a settled law that more than final
decree can be passed.
Partly preliminary and party final decree
A decree may be partly preliminary and partly final like in a suit for possession of immovable
property with mesne profits where the court,
1. decrees the possession of the property
2. directs an enquiry into the mesne profits
The former part of decree is final whereas the latter part is preliminary.
Rejection and return of Plaint: There is always jurisdiction remains in the court. It have the
nature of decree. Section 2(2) specifically provides that rejection of plaint shall be deemed to
be a decree whereas an order returning a plaint or memorandum of appeal to be presented to
proper court will not be a decree. the reason is that such an order does not negate any rights
of the plaintiff or appellant in any manner and therefore it cannot be termed as a decision
relating to the matters in controversy in the suit.
Restitution: only if it is demanded as a right or demanded as a relief. Determination of any
question under Section 144 or within its meaning is termed as restitution and is included
within the meaning of decree for the purpose of giving the right to appeal only under the
circumstances where it leads to the adjudication on the aspects of the rights in the
controversy. Otherwise if it is neither made in a suit nor is asked as a matter of right then it
will not be termed as a part of decree.
Appealable orders: an adjudication from which an appeal lies just like an appeal from or
against a decree are termed as appealable orders e.g. orders like returning plaint for
presentation to a proper court or rejecting an application to set aside an ex parte decree or an
order rejecting an application for permission to sue as an indigent person are called as
appealable order and not decrees. The distinction between a decree and an appealable order
lies in the fact that in case of a decree second appeal lies in certain cases whereas for an
appealable order there is no provision for second appeal.
Judge: it means the presiding officer of a civil court. Although the term court has not been
defined in CPC, it can commonly be referred as assembly of judges or other persons acting as
a tribunal in civil or criminal cases where the justice is judicially administered. [E. D.
Sinclair v. L.P.D Brougton]
Judgment: Section 2(9), it means the statement given by a judge of the grounds of a decree
or an order. It is more sort of universal nature. Essential elements of judgment:

 The essential elements of a judgment is that there should be a statement laying down
the grounds of the decision. [Vidya Charan Shukla v. Khub Chand Baghel, AIR
1964 SC 1099]
 Every judgment other than that of small causes court should contain
o A concise statement of the case;
o Points of consideration;
o The decision thereon;
o The reasons for the decisions.

Balraj Taneja v. Sunil Madan AIR 1999 SC 3381: a judge cannot merely say ‘suit decreed
or suit dismissed.’ The whole process of reasoning has to be set out for deciding the case one
way or the other. Even the small causes court judgments must be intelligible and must show
that the judge has applied his mind. The judgment need not be on all the issues in a case and
may even be on a preliminary issue itself.
Distinction between judgment and decree:

 A judgment is the statement given by the judge laying down the grounds of a decree.
Whereas decree is the enforcement of the rights developed on the basis of the
reasoning pronounced in the judgment.
 It is not necessary that there should be a formal expression of every order in the
judgment though it is desirable. Whereas for a decree it essentially has to be a formal
expression.
 A judgment has to include precisely the relief granted, rule 6-A of order 20 inserted
by 1976 amendment.
Order: order means the formal expression of any decision by the civil court which is not a
decree. section 2(14).
Order is also a formal expression. Order may also include a determination by the court on a
specific issue and even decide the rights of the parties. But it does not pronounce the
conclusive determination. As a general rule an order of a court of law is based on objective
considerations and may contain a discussion of the question at issue and the reasons which
prevailed within the court which lead to the passing of the order.
Similarities between order and decree:

 Both relates to matters in controversy

 Both are the decision given by the court.
 Both are judicial adjudication pronounced by the court
 Both are formally expression of a decision.
The difference between order and decree:

 A decree can only be passed in a suit or civil proceedings which commenced with
presentation of a plaint whereas and order may originate even from a proceeding
which commenced through an application.
 A decree is an adjudication conclusively determining the rights of the parities with
regard to all or any of the matter sin controversy. Whereas the order may or may lead
to an conclusive determination of any such right.
 A decree may be preliminary or final or partly preliminary or partly final whereas
there cannot be a preliminary order.
 Except in certain suits, mostly, a suit will have two decrees, one preliminary and one
final or may even have a single final decree. within civil suit or proceeding depeding
on the number of applications, there can be multiple orders.
 Every decree is appealable unless otherwise expressly provided. Only those orders for
which a provision for appeal is mentioned in CPC are appealable.
 A second appeal lies to the high court on certain grounds from the decree passed on
first appeal. No second appeal is allowed even in case of appealable orders.
Decree holder: Any person in whose favor a decree has been passed or an order capable of
execution has been made is called decree holder. Section 2(3). Decree holder need not
necessarily be a plaintiff.
Judgment debtor: any person against whom a decree has been passed or an order capable of
execution has been made. Section 2(10).
Foreign court: foreign court means a court situated outside india and not established or
continued by the authority of central government. E.g. Pondicherry in 1908.
Legal representative: legal representative means a person who in law represents the estate
of a deceased person and includes any person who intermeddles with the estate of the
deceased person and where a party sues or is sued in a representative character, the person on
whom the estate devolves on the death of the party so suing or sued.
Decree and legal documents are even part of estate. So it is transferable asset and can be a
responsibility even.
Mesne Profits: mesne profits means those profits which the person in wrongful possession of
such property actually received or might with ordinary diligence have received together with
interest on such profits but shall not include profits due to improvements made by the person
in such wrongful possession. Section 2(12)
Object of mesne profits: every person has a right to possess his property and when he is
deprived of such possession, he is not only entitled to the restoration of such possession but
also damages on account of such wrongful possession. Thus the object of decree for mesne
profits si to compensate the person who has been kept out of possession of his property and
has been deprived of his right of peaceful enjoyment of his property even though he was
entitled to such possession thereof. [Lucy Kochuvareed v. P. Mariappa Gounder AIR
1979 SC 1214]
Criterion for Assessment of Mesne Profits: a person who is in wrongful possession and
enjoyment of immovable property is liable for mesne profits. Where the owner or plaintiff is
dispossessed by several persons every one of them would be liable to pay mesne profits even
though they might not be in actual possession or the profits have not been received by them.
In such cases the court may hold all the possessors jointly and severally liable leaving them to
have their rights adjusted in a separate suit for contribution or within the same suit through
division of liability among each of them.
Mesne profits are in the nature of damages and while assessing the mesne profits the court
usually take into account what the defendant has gained or reasonably might have gained by
his wrongful possession of the property. The court may decide the mesne profits according to
the facts and circumstances. [Fateh Chand v. Balkishan das AIR 1963 SC 1405].
The test to ascertain mesne profits is not what the plaintiff has lost by being out of possession
but what the defendant has gained or might reasonably with ordinary prudence have gained
by such wrongful possession. [Marshall Sons & Co. v. Sahi oritrans Pvt, Ltd. AIR 1999
SC 882]
Principles for calculation mesne profits:

 No profits by a person in wrongful possession.

 Restoration of status before dispossession of decree holder.
 Use to which a decree holder would have put the property if he himself was in
possession.
Interest over mesne profits: interest is an integral part of mesne profits which has to be
allowed in computation of mesne profits itself. the rate of interest allowed over mesne profits
shall not exceed 6% per annum and such interest can be allowed till the date of final payment.
[Mahant Narayan Das ji v. Tiruumalai Tirupati Devasthanan AIR 1965 SC 1231].
Affidavit: it is a declaration of facts reduced to writing and affirmed or sworn before an
officer having authority to administer oaths. It should be drawn up in first person and should
contain statements and not inferences.
Cause of Action: bundle of essential facts which are necessary for the plaintiff to prove
before he can succeed. It is an antecedent to the suit and if the plaint fails to disclose the
cause of action, the court will reject such plaint.
Caveat: caveat is an official request that a court should not take a particular action without
issuing notice to the party lodging the caveat and without affording an opportunity of hearing
them. Going to the court before the other party approaches.
Plaint: a plaint is a statement of claim, a document or a memorial by the presentation of
which a suit is instituted. It contains the grounds on which the assistance of the court is
sought by a plaintiff and also referred to as the pleadings of the plaintiff.
Summons: it is a document issued from the office of a court calling upon the person to
whom it is directed to attend before a judge or an officer of the court for a certain purpose. It
is a written order that legally obligates someone to attend a court of law at a specified date.
Written statement: it is considered as a reply of the defendant against the plaint filed by the
plaintiff. It is referred as pleading of the defendant dealing with every material fact raised in
the plaint. It may also contain new facts discussed which are in favor of defendant or legal
obligations against the claims of a plaintiff brought before the court.
Jurisdiction of the court: a litigant having grievance of civil nature has a right to institute a
civil suit in a competent civil court unless its cognizance is either expressly or impliedly
barred by any statute. [Abdul Waheed Khan v. Bhanwani AIR 1966 SC 1718]. A suit for
its maintainability requires no authority of law and it is enough that no statute bars it. [Ganga
Bai v. Vijay Kumar AIR 1974 SC 1126]. The court cannot confer jurisdiction to itself, it is
only in the power of the legislature to decide the jurisdiction of the judiciary. Any decree
passed without jurisdiction is null in eyes of law. Consent to fix the jurisdiction of an
empowered court is valid.
Jurisdiction means the power or authority of a court of law to hear and determine a cause or
a matter. It is the power to entertain and decide a suit or civil proceeding.
In the case of Official Trustee v. Sachindra Nath AIR 1969 SC 823, the court held that a
court must not only have jurisdiction to try the suit brought but must also have the authority
to pass the order sought for. Jurisdiction must include power to hear and decide the question
at issue and decide the particular controversy that has arisen between the parties. if the court
cannot pass the relief prayed for, then the court do not possess the jurisdiction to adjudicate
the case.
Jurisdiction and consent: [A R Antulay v. R S Nayak AIR 1988 SC 1531], the power to
create and enlarge jurisdiction is legislative in character and so also the power to confer a
right of appeal or could take away the right of appeal. No court whether superior or inferior
or both combined can enlarge the jurisdiction of a court or divest a person of his rights of
revision and appeal.
Hirendra Nath v. Sudhir Verma AIR 1964 SC 1300: if the court has no inherent
jurisdiction neither acquiescence nor waiver nor estoppel can create it. Such a basic and
fundamental defeat cannot be cured by consent of parties or by the judgment or order passed
by a court. The decree so passed is null and void and can be challenged at any stage.
The court cannot create jurisdiction but can enlarge it. Interpretation of jurisdiction is allowed
but conferring jurisdiction on itself is not allowed.
Kiran singh v chaman Paswan AIR 1954 SC 340: it is a fundamental principle well
established that a decree passed by a court without jurisdiction is a nullity and that its
invalidity could be setup whenever and wherever it is sought to be enforced or relied upon.
Even at the stage of execution and even in collateral proceedings. A defect of jurisdiction
strikes at the very authority of the court to pass any decree and such a defect cannot be cured
by consent of parties.
Jurisdiction of a court is a public policy and passed by the parliament and therefore
individuals cannot decide the jurisdiction in their private capacity.
Lack of jurisdiction and irregular exercise of jurisdiction: there is always a distinction
between want of jurisdiction and irregular exercise of jurisdiction. Once it is held that a court
has the jurisdiction to decide a matter and to entertain it, the correctness of the decision given
cannot be said to be without jurisdiction in as much as the power to decide necessarily carries
with it the power to decide wrongly as well as rightly. [Ujjam Bai v. State of UP AIR 1962
SC 1621]. If a court has the jurisdiction but it is irregularly exercised and the defect does not
go to the root of the matter and the error if any in exercising the jurisdiction can be remedied
in appeal or revision and when there is no such remedy or is not availed of then the decision
is final.
Ittyavira Mathai v. Varkey AIR 1964 SC 907: the contention was that the decree passed by
the court is nullity as the suit was time barred and the court did not take into cognizance of
this fact so there was lack of jurisdiction. If the party aggrieved does not take appropriate
steps to have the error corrected, the erroneous decree will hold good and will not be open to
challenge on the basis of it being a nullity. It is regular exercise of jurisdiction and as no steps
were taken by the aggrieved party, no remedy available.
In the case of Anisminic Limited v. foreign compensation commission 1969 (1) All ER
208, the difference between these two terms is being assimilated.
M L Sethi v. R P Kapur 1972 2 SCC 427, after anisminic case, every error of law is a
jurisdictional error. The distinction between jurisdictional and non jurisdictional error is
based upon a foundation of sand. Much of the superstructure has already crumbled. What
remains is likely to quickly fall away as the courts rightly insist that all administrative actions
should be simply lawful whether or not jurisdictionally lawful.
Basis of deciding a jurisdiction: the court goes by the decision of the jurisdiction only on
the facts mentioned in the plaint. If the plaint is not clear, the court will see that if the written
statement contains any legal objection regarding the jurisdiction. It is a well settled principle
that for deciding the jurisdiction of the civil court, the averments made in the plaint are
material or the jurisdiction of the court should normally be decided on the basis of the case
put forward by the plaintiff in his plaint and not by the defendant in his written statement.
Abdullah bin Ali v. Galappa AIR 1985 SC 577, the supreme court observed that there is no
denying to the fact that the allegations made in the plaint decide the forum. The jurisdiction
does not depend upon the defence taken by the defendants in their written statements.
Bank of baroda v. motibai AIR 1985 SC 545: on the question of jurisdiction one must
always have regard to the substance of the matter and not to the form of the suit. The way in
which suit is brought is not relevant.
Section 9 of cpc: jurisdiction
Kinds of jurisdiction:

 Civil and criminal jurisdiction: ancient, civil deals with the private rights of the
individuals.
 Territorial or local jurisdiction: where is the particular court which hears the
particular type of matter. On the basis of limited geographical limit, certain courts
would be established who would entertain matters pertaining to that geographical
area. Every court has its own local or territorial limits beyond which it cannot exercise
its jurisdiction. These limits are fixed by the legislature or government. The district
has the authority to exercise the jurisdiction within a district, the high court has the
authority within the state where it is situated or any other territory vested to it by law.
A court has no jurisdiction to try a suit for immovable property situated beyond its
local limit.
 Pecuniary jurisdiction: cpc provides a court will have jurisdiction only over those
suits the amount of value of the subject matter of which does not exceed the pecuniary
limits of its jurisdiction. There are certain courts without any pecuniary limit and
other categories may have a pecuniary limit.
 Subject matter jurisdiction: prevalent form of jurisdiction: different courts have
been empowered to decide different types of suits. Certain courts are precluded from
entertaining a certain category of suits. For e.g. presidency courts have no jurisdiction
to try suits for specific performance because specific performance may not preclude
any specific Act.
 Original and appellate jurisdiction: original jurisdiction is the jurisdiction inherent
or conferred upon a court of first instance. Appellate jurisdiction is the power or
authority conferred upon a superior court to rehear by way of appeal of revision of
matters which have been tried and decided by the courts of original jurisdiction.
 Exclusive and concurrent jurisdiction: exclusive jurisdiction is that which confers
sole power on one court or tribunal to try and decide a case. Concurrent jurisdiction is
the jurisdiction which may be exercised by different courts or authorities between the
same parties at the same time over the same subject matter and the option is present to
a litigant to invoke jurisdiction of any such court.
 Legal and equitable jurisdiction: Legal jurisdiction is a jurisdiction exercised by the
common law courts in England while equitable jurisdiction is exercised by court of
equity. In india, the courts are of both law and equity.
Jurisdiction of a civil court:
Section 9, the courts shall have jurisdiction to try all the civil suits of the civil nature
excepting suits of which the cognizance is either expressly or impliedly barred.
Explanation 1: from the inception
Explanation 2: inserted through amendment in 1976.
The conditions of section 9: court have jurisdiction subject to two conditions:

 The suit must be of civil nature: it pertains to private rights and remedies of a citizen
as distinguished from criminal political or religious matter. Thus a suit is of civil
nature, if the principle question therein relates to the determination of a civil right and
enforcement thereof. Political and religious questions are not covered by this
expression. E.g. a suit which the principle question of a caste or religion is not of civil
nature but if the principle question is of civil nature and it incidentally carries the
question of caste and religious rights, it does not cease to be a suit of civil nature and
the jurisdiction of the civil court is not barred. [P M A Metropolitan v. Moran Mar
Marthoma AIR 1995 SC 2001]. In this case, it was held that the civil suits related to
the matter that the jurisdiction of a court is presumed if it entails within a question of
private right or obligation. No court can refuse to entertain such matters if the
cognizance is not barred. The section 9 would therefore be available in every case
where the dispute was of the characteristic of affecting one’s rights which are not only
civil but of civil nature. All the rights may be civil but not of civil nature.
Constitutional matter, political matter and religious matters are even civil matters but
not of civil nature as they are the elements of public policies.
 The cognizance must have been barred either expressly or impliedly
o Suits expressly barred: a suit is said to be expressly barred when it is barred by
any enactment for the time being in force. It is open to a competent legislature
to bar jurisdiction of civil court with respect to a particular class of suits of
civil nature provided that in doing so it keeps itself within the field of
legislation conferred on it and does not contravene any provision of the
constitution. [State of Vindhya Pradesh v. Moradhwaj Singh AIR 1960 SC
796]. This provision is also related to the concept of doctrine of separation of
powers. Every presumption should be made in favor of the jurisdiction of a
civil court and the provision of exclusion of jurisdiction must be strictly
construed. If there is any doubt about the ousting of jurisdiction of a civil
court, the court will lean to an interpretation which would maintain the
jurisdiction. [Dhula Bhai v. State of M P AIR 1969 SC 78 and Bharat kala
Bhandar Pvt. Ltd. v. Municipal Committee Dhaman Gaon AIR 1966 SC
249]. Further, if the remedy provided by the statute is not adequate and all
questions cannot be decided by the special tribunal, the jurisdiction of a civil
court is not said to be barred. [State of Tamil Nadu v. Ramlinga Samigal
AIR 1986 SC 794].
o Implied Bar: a suit is said to be impliedly barred when it is barred by general
principles of law. Where a specific remedy is there given by a statute, it
thereby deprives the person who insists upon a remedy of any other form than
that given by the statute. [Premier Automobiles v. Kamleker Shantaram
AIR 1975 SC 2238]. In this case, it was also held that where an act creates an
obligation or enforces its performance in a specified manner, that performance
cannot be enforced in any other manner. Certain suits, even if of being a civil
nature, the cognizance may be barred by the civil court on the basis of public
policy. [Indian Airlines Corp. v. Sukhdev rao AIR 1971 SC 1828]. The
civil courts has no jurisdiction to adjudicate or enlarge its mandate to take up
the relief sought of any other nature and thereby it acts as an implied bar over
such types of relief.
Suits of civil nature are

 Suits relating to the rights to property;

 Suits relating to taking out of religious procession;
 Suits relating to shares in offerings;
 Suit relating to specific performance of contract or damages for breach of contract;
 Suits for restitution of conjugal rights and dissolution of marriage;
 Suits relating to rights to franchise;
 Suits for rents;
 Suits for accounts.
Suits which are not of civil nature

 Suits involving principally caste questions;

 Suits involving purely religious rights and ceremonies;
 Suits for recovery of voluntary payments or offerings;
 Suits against expulsions from caste.
Objection as to exclusion of the jurisdiction of the civil court: a litigant having a grievance
of civil nature has independent of any statute a right to institute a suit in a civil court unless
its cognizance is either expressly or impliedly barred. The exclusion of jurisdiction of civil
court is not to be readily inferred and such exclusions have to be proved beyond reasonable
doubts in order to establish the objection as to jurisdiction. [Dhula Bhai v State of MP AIR
1969 SC 78].
1. Secretary of State v. Mask and co. AIR 1940 PC 105: it was held that it is settled law
that exclusion of jurisdiction of civil courts is not to be readily inferred but that such
exclusion must either be explicitly expressed or clearly implied. It is also well established
that even if such jurisdiciiton is so excluded, the civil courts will have jurisdiction to examine
into the cases where the provisions of the act have not been complied with or the statutory
tribunal has not acted in conformity with the fundamental principles of judicial procedure.
2. seth Radhakrishan v. Administrator Municipal Committee, Ludhiana AIR 1963 SC
1547: a suit in a civil court will always lay to question the order of a tribunal created by a
statute even if its order is expressly or by necessary implications made final, if the said
tribunal abuses its power or does not act under the Act, but in violation of its provision.
3. Dhula Bhai v. State of MP (justice hidaytullah):
Principles laid down as to the exclusion of the jurisdiction;

 Where a statute gives finality to orders of special tribunals, the civil court’s
jurisdiction must be held to be excluded if there is adequate remedy to do what the
civil courts would normally do in a suit. Such a provision however does not exclude
those cases where the provisions of a particular Act have not been complied with or
the statutory tribunal has not acted in conformity with the established principles of
judicial procedure.
 Where there is an express bar on the jurisdiction of the court, an examination of the
scheme of the Act to find out the adequacy or sufficiency of the remedies provided
may be relevant but this is not decisive for sustaining the jurisdiction of a civil court.
The reason being that where there is no express exclusion, the examination of the
 remedies and schemes of the particular act and the enquiry laid within to analyze so
may be decisive for the purpose of exclusive of jurisdiction.
 Challenges to the provisions of a particular Act as ultra vires cannot be brought before
tribunals constituted under that Act. Even the high court cannot go into that question
being brought in form of revision or reference against such tribunals.
 When a provision is already declared unconstitutional or the constitutionality of any
provision is to be challenged, a suit is always open. A writ of certiorari may include a
direction for refund of claims if the claim is clearly within the purview of the Act but
it is not a compulsory remedy to replace the suit.
 Where the particular Act contains no machinery for refund of tax collected in excess
of the constitutional limits or is illegally collected, a suit lies.
 Questions of correctness of an assessment cannot be brought through a civil suit if the
Act lays down them to be final and binding or there is an express prohibition under
the particular itself making such suits not maintainable.
 An exclusion of jurisdiction of civil court is not supposed to be readily inferred unless
the conditions above said are applicable to the case or a particular situation.
Another important case is premier Automobiles V. Kamleker Shantaram, it is related
to issue of industrial dispute and issue of conflict of jurisdiction with the civil court

 If a dispute is not an industrial dispute nor does it relates to enforcement of any

right, under the statute or any Act, then the remedy in the civil court.
 If a dispute is an industrial dispute, arising out of a right or liability under the
general or common law, and not under the Act , the jurisdiction of civil court is
alternative, leaving it to the selection of the suitor or person concerned to choose
his remedy for the relief which is competent to be granted in the particular
situation.
 If an industrial dispute relates to the enforcement of a right or an obligation
created under the Act, then the only remedy available to the suitor is to get
adjudication under the Act itself.
 If the right which is sought to be enforced is a right created under the Act such as
Chapter V-A then the remedy for its enforcement is either Section 33-C or the
raising of an industrial dispute, as the case may be.
Rsrtc v. krishna kant AIR 1995 SC 1715:

 Where a dispute arises from the general law of contract that is where releifs are
claimed on the claimed on the basis of obligations arising out of such contract may
not be said to be maintainable in the civil courts even if such disputes constitute
industrial dispute within the meaning of section 2(k) of IT Act.
 Where a dispute involves recognition or observance of any rights or obligations
created by the Act, the only remedy is to approach the adjudication forum established
under such Act.
 Where the dispute involves the recognition of rights and obligations of the sister
enactment to the major law enforced which may not provide a separate adjudication
forum for redressal of disputes, the only remedy shall be to approach the forums
created by the major laws, whether the major right is not sought to be enforced
through the major law.
 The power to make reference conferred upon the central government is to be
exercised to effectuate the object of the enactment and hence such discretion is not
 unguided. The purpose of this referential rule is to avoid totally frivolous cases on the
face of the record otherwise the power conferred to make a reference is not the power
to make a decision. Though it is observed that government is entitled to examine
whether a matter is frivolous not meriting adjudication.
 The policy going in consistence with the policy of law, the SC has observed that the
parliament should make an enabling provision to enable workman to approach labour
courts without the prior sanction of the government as this would go in a long way to
establish parity between civil courts and the labour courts.
 The policy of law emerging from the industrial Act and their sister enactmensts is to
provide alternative dispute resolution provision which is speedy, inexpensive,
informal and unencumbered by the plethora of procedural laws and at the same time
are far more extensive in the sense that they can grant any relief which they deem fit
and appropriate in a given situation in order to provide substantial justice.
In the further case of Chandrakant v. Municipal Corp of Ahmadabad 2002 2 SCC
542, it was held that the power of industrial courts is wide enough and such forums are
entitled to grant adequate relief as they think just and appropriate. It is in the interest of
the workman that their disputes including the disputes of illegal termination are
adjudicated upon by an industrial forum.
Doctrine of res subjudice (Section 10): section 10 deal with the stay of civil suits. It
provides that no court shall proceed with the trial of any suit in which the matter in issue is
directly and substantially in issue with a previously instituted suit between the same parties
and that the court in which the previous suit is pending, is competent to grant the relief
claimed.
Doctrine of res judicata: Section 11 on the other hand related to a matter already
adjudicated upon. It bars the trial of a suit or an issue in which the matter directly and
substantially in issue has already been adjudicated upon in a previous suit.
Two pillars of doctrine of res subjudice

 The matter is directly and substantially in issue;

 The court in which the matter is previously challenged was a competent forum.
Scope of Section 10: the rule of section 10 applies to a trial of a suit and not the institution
thereof. It also does not preclude a court from passing interim order such as grant of
injunction, stay or appointment of receiver etc.
Object of section 10: the object of section 10 is to prevent courts of concurrent jurisdiction
from simultaneously entertaining and adjudicating upon two parallel litigations in respect of
the same cause of action, the same subject matter and the same relief sought. The policy of
law is to avoid two contradictory judgments or possibility of two contradictory judgments on
the same issue with same sort of relief in order to avoid the harassment of the parties and
avoid the conflict of decision from the courts. The doctrine of sub judice bars the trial of the
suit and not the institution thereof. If a judgment has been received by the court the
subsequent suit may be dismissed by this court in which it was it instituted may dismiss the
suit thereof. [National Institute of Medical Health and Neuroscience v. C parmeshawara AIR
2005 SC 242]
1. Condition for application for section 10:
 There should be two suits one previously instituted and the latter subsequently
instituted.
 The matter in issue in the subsequent unit or subsequent suit must be directly and
substantially in issue in the previous suit.
 Both the suits must be between the same parties or between their representatives.
 The previously instituted suit must be pending in the same court in which the
subsequent suit is brought or in any other court in India or in any other court beyond
the limits of India but carried on by the authority of Central Government or they have
been before the Supreme Court of India.
 The court in which the previous suit is instituted must have the jurisdiction to grant
the relief claimed in the subsequent suit.
 Such parties must be litigating under the same title in both the suits.
The court is having the jurisdiction therefore institution is not barred, only the trial is barred
Section 10 does not take away the power of the court to examine the matters on merits. If
the court is satisfied that subsequent suits can be decided purely on a legal point, it is
open to the court to decide such suit. [Pukhraj D. Jain v. G Gopal Krishna AIR 2004 SC
3504].
2. Inherent power of the court [Section 151]
Even where the provision of section 10 of cpc do not strictly apply, a civil court has inherent
power under section 151 to stay the suit in order to achieve the ends of justice. A court has
inherent power to consolidate different suits between the same parties in which the matter in
issue is substantially the same. [P. V. Shetty v. B S Giridhar AIR 1982 SC 83.]
3. Effect of contravention of section 10
A decree passed in contravention of section 10 is not a nullity and therefore cannot be
disregarded in the execution proceedings. [Pukhraj D. Jain v. G Gopal Krishna AIR 2004 SC
3504] hence it the parties waive their right and expressly ask the court to proceed with the
subsequent suit, they cannot afterwards challenge the validity of the subsequent proceedings.
[ AIR 1984 Raj 22].

Doctrine of res judicata:

Constructive Res Judicata: the rule of direct res judicata is limited to matters directly or
actually in issue alleged by one party and denied or admitted directly or impliedly by the
another party. The rule of constructive res judicata as engrafted in explanation no. 4 of § 11
suggests that if a plea could have been taken by a party in a proceeding between him and his
opponent, he should not be permitted to take the same plea against the same party in a
subsequent proceeding with reference to the same subject matter. [State of UP v Nawab
Hussain AIR 1977 SC 1680]. This rule helps in raising the bar of res judicata and that is why
it is termed as constructive res judicata which in reality is an aspect or amplification of
general principles of res judicata. [Workman v. Board of Trustees, Cochin Port Trust, AIR
1978 SC 1283]. It was held in this case that when any matter which might or ought to have
been made a ground of defense or attack in a former proceeding, but was not so made, then
such a matter in the eyes of law, to avoid multiplicity of litigation and to bring about finality
within it, is deemed to have been constructively in issue and therefore is taken as decided.
Forward construction company v. prabhat Mandal AIR 1986 SC 391: it was held that the
principle underlying explanation 4 is that where the parties have had an opportunity of
controverting a matter that should be taken to be the same thing as if the matter had been
actually controverted and decided. It is true that where a matter has been constructive in
issue, it cannot be said to have been actually heard and decided. It could only be deemed to
be heard and decided.
Devi lal modi v STO AIR 1965 SC 1150, CJI Gajendra Gadkar: the courts dealing with
the issue of infringement of the fundamental rights endeavor to bring all the matters in
question in order to comprehensively decide the situation in hand but it would not be right to
ignore the principles of res judicata all together in dealing with writ petitions filed by the
citizens contravening the violation of their fundamental rights. The consideration of public
policy cannot be ignored while dealing with the issues of fundamental rights. If such a course
is allowed to be adopted where the matters of fundamental rights violation are kept beyond
the public policy of res judicata, the doctrine of finality of judgments by this court would also
be materially affected.
4. Matters which are collaterally or incidentally in issue:
isher Singh v sarvan singh, AIR 1965 SC 948: a matter is collaterally and incidentally in
issue if it is necessary to decide it in order to grant relief to a plaintiff or to a defendant and
the decision on such issue either way does not affect the final judgment of the court.
Res judicata between co-defendants: as a matter of fact res judicata applies between plaintiff
and defendant as well as co-plaintiff and co-defendants. Adjudication will operate as res
judicata between co-defendants if the following conditions are satisfied:

 There must be a conflict of interest between the co-defendants;

 It must be necessary to decide that conflict in order to give relief to the plaintiff;
 The question between co-defendants must have been finally decided;
 The co-defendants were necessary or proper parties in the former suit.
If these conditions are satisfied, the adjudication will operate as res judicata between the
co-defendants. [Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332].
Res judicata between co-plaintiffs: if there is a conflict of interest between the plaintiffs and
it is necessary to resolve the same by a court in order to give the relief to a defendant and the
matter is in fact decided, it will operate as res judicata between the co-plaintiffs in the
subsequent suits. [Iftkaar Ahmed v Sayyed Maherban Ali AIR 1974 SC 749]
Proforma Defendant: a defendant to a suit against whom no relief is claimed is called a
proforma defendant. A person may be added as a proforma defendant in a suit merely
because his presence is necessary for a complete and final decision of questions involved in a
suit. Since no relief is sought against him, a finding of the court does not operate as res
judicata for the matter of subsequent suit. [Rahim Bhoy v. Charles Agnew Turner, ILR 1893
(17) Bom 341].

FOREIGN JUDGMENT [SECTION 13 AND 14 OF CPC]

Section 13 and 14 of CPC enact a rule of res judicata in case of foreign judgment which
embodies the principles of private international law that a judgment delivered by a foreign
court of competent jurisdiction can be enforced by an Indian court and will operate as res
judicata between the parties thereto subject to the conditions specified under section 13.
The provisions mentioned under section 13 are not confined in its application only to
plaintiffs but equally entitle a defendant to non- suit the plaintiff on the basis of a foreign
judgment. [Badat Trading Company v. East Indian Trading Company, AIR 1964 SC 538].
Object: the judgment of a foreign court is enforced on the principles that a court of competent
jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim. The
rules of private international law of each state may differ but through the comity of nations
certain rules are recognized as common to different civilized jurisdictions. Thus as a part of
judicial system of each state, these common rules have been adopted in order to effectuate the
judgments of foreign courts in certain matters through their own mutual recognition or
through certain international convention. [Narsimha Roa v. Venkata Lakshi (1991) 3 SCC
451].
Comity of nations e.g.: common law judgments
Principle of reciprocity: a process of mutual recognition where one country have reciprocated
in recognizing the judgment of one country and it casts the obligation on the other country to
reciprocate the judgment of such other country. Here, one individual nation may recognize
other individual nation or group of nations.
Binding nature of such foreign judgments: A foreign judgment shall be conclusive to any
matter thereby directly adjudicated upon between the same parties or between the parties
under whom they or any of them is litigating subject to the conditions mentioned under
Section 13 (a)(f). [Satya v. Teja Singh 1975 (1) SCC 120]

 Foreign judgments not passed by a court of competent nature: the principle of

competency is similar to our own judicial system. We would check if the court
passing the judgment has the competent jurisdiction relating to any aspect. It is a
fundamental principle of law that a judgment or order passed by which have no
jurisdiction is deemed to be null and void. Thus a judgment passed by a foreign court
must be pronounced by a court of competent jurisdiction [R Vishswanthan vs. Rukn-
un-Mulk Syid Abdul AIR 1963 SC 1] and such a competency may be through both
by the law of the state which establish it and in an international scenario it must be
directly adjudicated upon the matter which is pleaded as res judicata. In the case of
Gurdayal Singh v. Raja of Faridkote.
 Foreign judgments not on merits: In order to operate as res judicata, a foreign
judgment must have been given on the merits of the case. A judgment is said to be
given on merits when after taking evidences and applying his mind regarding the truth
or falsity of the plaintiff’s case the judge decides the case one way or the other. Thus,
when a suit is dismissed on default of appearance of the plaintiff or for non
production of document, even before filing of the written statement are not deemed on
merits. [international woolen mills vs standard wool UK ltd. AIR 2001 SC 2134]
 That the foreign judgment should not be against international or Indian law: a
judgment based upon an incorrect view of international law or refusal to recognize the
law of India, where such law applicable is not conclusive, but the mistake present
must be apparent on the face of the proceedings. [R Vishwanathan v. Rukn-ul-mulk
Syid Abdul].
Therefore, a foreign judgment which is found on jurisdiction or on a ground not
recognized by Indian law or goes in contravention of international law, such judgment
is deemed to be in defiance of the law. Hence it is not conclusive on the matters
adjudicated therein and therefore becomes unenforceable in our country. [Narsimha
Rao v. Venkata Laxmi].
 Foreign judgment going against the principles of natural justice: it is the essence of
the judgment of a court that it must be obtained after due observance of the judicial
process i.e. the court rendering the judgment must observe the minimum
requirements of principles of natural justice (which may be that the process must be
composed of impartial persons, fair action without bias, presence of good faith,
reasonable notice to the parties from the court and affording each party adequate
opportunity for presenting his case). a judgment which is the result of bias or
elements of mala fide intention are present on part of the judge, then the entire
judgment is deemed to be nullity and the trial becomes Corum non judice.- Gurdayal
Singh v Raja of Faridkot; Vishwanathan v sayid abdul.
 Foreign judgment obtained by fraud: it is a well established principle of private
international law that if a foreign judgment is obtained by fraud it will not operate as
res judicata. Fraud and justice can never dwell together or fraud and deceit ought to
benefit none. Fraus et jus nunaqum cohabitant. A B Papayya Shastry v. Government
of Andhra Pradesh, AIR 2007 SC 1546.
  Additionally, it was also held that fraud may be defined as an act of deliberate
deception with the design of securing some unfair or underserved benefits by taking
undue advantage of another. In fraud one gains at the cost of other. Fraud is thus an
extrinsic collateral act which vitiates all judicial acts whether in rem or in personum.
The principle of finality of litigation cannot be stretched to the extent of an absurdity
that it can be utilized as an engine of oppression by dishonest or fraudulent litigants.
 The foreign judgment should not be in contravention of Indian Law: even if the
principles of private international law allow such foreign judgments, but those
principles goes in contravention of the Indian law, such judgments cannot be
followed in India.
5. Section 14
Presumption as to foreign judgments: section 14 declares that the court shall presume upon
the production of any document purporting to be a certified copy of the foreign judgment and
that such judgment was pronounced by a competent court unless the contrary is proven on
record.
But SC has held that mere production of the photostate copy of a decree of a foreign court is
not sufficient. It is required to be certified by a representative of a central government or the
judicial officer of the country. Narsimha Rao v Venkata Lakshi.
PLACE OF SUING
Suits may be of different types based upon contracts, torts, movable property, immovable
property etc. The jurisdiction of the court to entertain, deal with and decide a suit may be
restricted by a variety of circumstances, including the decision of place of suing. Section 15
to 20 regulates the forum for the institution of suits.
Scheme: section 15 requires the plaintiff to file a suit in the court of the lowest grade
competent to try it. Section 16 to 18 deals with suits relating to immovable property. Section
19 applies to suits for compensation for wrong to person or to immovable property. Section20
is a residuary section and deals with power of civil court in relation to suit which has not been
covered from section 15 to section 19.
Pecuniary jurisdiction: every suit shall be instituted in the court of the lowest grade
competent to try it.
Nature and scope: section 15 of the Code refers to the pecuniary jurisdiction of the court. The
rule laid down in the section is a rule of procedure and does not affect the jurisdiction of the
court. Hence, a decree passed by a court of a higher grade cannot be said to be without
jurisdiction. Gopal v Shamrao, AIR 1941 Nag 21.
It is merely an irregularity covered by Section 99 of the Code and the decree passed by the
Court is not a nullity. Kiran Singh v. Chaman Paswan, AIR 1954 SC 340
6. Object:
 To see that the courts of higher grade shall not be overburdened with the suits
 To afford convenience to the parties and witnesses who may be examined in such suit.
7. Mode of valuation:
Prima facie it is the plaintiff’s valuation in the plaint that determines the jurisdiction of the
court and not the amount for which ultimately the decree may be passed.- kiran Singh v.
Chaman Paswan The valuation of the suit which is low at the time of institution may not act
as an impediment on the powers of the court to grant greater damages.
8. Powers and duties of the court in such valuations:
 If the plaintiff deliberately undervalues or overvalues the claim for the purpose of
choosing the forum, the plaint cannot be said to be correctly valued and it is the duty
of the court in such circumstances to return the plaint to be filed in proper court.
 But if the court is unable to come to a finding regarding the correct valuation of the
subject matter, the court has to accept the valuation computed on behalf of the
plaintiff. Tara Devi v. Shir Thakur Radha Krishna Maharaj AIR 1987 SC 2085.
9. Territorial jurisdiction:
 Types of suit: for the purpose of territorial jurisdiction of the courts, suits may be
divided into four categories:
o Suits in respect of Immoveable property (Sec 16-18): clauses (a) to (e) of
section 16 deals with suits for immovable property under 5 categories:
 Suits for recovery of immovable property;
 Suits for partition of immovable property;
 Suits for foreclosure (in relation to mortgage);
 Sale or redemption in the context of mortgage or any other charge;
  Suits for determination of any other right or interest in immovable
property;
 Suits for torts committed against immovable property.
These suits must be filed in the courts within the local limits of whose jurisdiction the
property is situated. section 17 is called contingency provision which says that where
a suit is to obtain a relief in relation to a damage in torts to the immovable property
situated within the jurisdiction of different courts, such suit may be filed in the court
within the local limits of whose jurisdiction any portion of the property is situated
provided that it does not breach the pecuniary jurisdiction of such court.
o Movable property (19)
 A suit for wrong to movable property may be brought at the option of
the plaintiff either at the place where the wrong is committed or where
the defendant resides, carries on business or personally works for
gain.
 Where such wrong consist of a series of acts, a suit can be filed at any
place where any of the acts has been committed similarly where a
wrongful act is committed at one place and the consequence ensue at
another place, a suit can be instituted at the option of the plaintiff
where the cause of action has arisen or the consequences has ensue.
o Suits for compensation for wrong committed (torts) (19)
 A suit for compensation for wrong or a tort to a person may be
instituted at the option of the plaintiff either where such wrong is
committed or where the defendant resides or where he carries on
business.
o Other types of suits (residuary suits) (20): It provides for all the suits which
have not been covered through sec 16 to 19. All such suits may be filed at the
option of the plaintiff in the following manner:
 Where the cause of action wholly or partly arises;
 Where the defendant resides or carries on business or personally
works for gain;
 Where there are two or more defendants, any of them resides or
carries on business may be added to the suit and the plaintiff may at
his option
 Either through the leave of the court; or
 Through the defendants who do not reside at that place, may
acquiesce in such institution.
Forum shopping: it is a well settled principle of law that consent can neither confer nor can
take away the jurisdiction of a competent court and the same principle is applicable while
oustering the jurisdiction of the court and by no means of consent, waiver, or estoppel can
stop the jurisdiction of the competent court. But where two or more courts have jurisdiction
to entertain a suit, an agreement by the parties to submit to the jurisdiction of one of such
courts to the exclusion of other courts is valid, binding and enforceable. Union of India v.
Oswal Woolen Mills Ltd., AIR 1984 SC 1264; Morgan Stanley Mutual Fund v. Kartik Das,
(1994) 4 SCC 225; ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711.
ESSENTIALS OF THE SUIT
There are four essentials of a suit:

 Opposing parties to a suit;

 Subject matter in dispute;
 Cause of action; and
 Relief sought.
Parties to the suit (Order 1): order I deals with the parities to a suit. It also contains
provisions for addition, deletion and substitution of parities through joinder, misjoinder and
non-joinder of parties.
Joinder of parties: the question of joinder of parties may arise either as regards to the plaintiff
or as regards to the defendants. An act may be done by a single individual and may affect
another individual. The question of joinder of parties arises only when an act is done by two
or more persons or it affects two or more persons.
Joinder of plaintiffs (rule 1): it states that all persons may be joined in one suit as plaintiffs in
the fulfillment of the following two conditions: Krishna Laxman v. Narshinghrao Vithalrao,
AIR 1973 Bom 358.

 The right to relief alleged to exist in each plaintiff arises out of the same act or
transaction; and
 The case is of such a character that, if such persons brought separate suits, any
common questions of law or fact would arise.
The word ‘and’ between clauses (a) and (b) makes it clear that both the above conditions
should be fulfilled which means that they are cumulative and not alternative.
Joinder of defendants (rule 3): it states that all persons may be joined in one suit as
defendants if the following two conditions are satisfied:

 The right to relief alleged to exist against them arises out of the same act or
transaction, and
 The case is of such a character that, if separate suits were brought against such
persons, any common question of law or fact would arise.
The underlining object of rule 3 is to avoid multiplicity of suits and needless expenses.
Ishwar Bhai v Harihar Behera, (1993) 3 SCC 457
Necessary party: it is one whose presence is indispensible to the constitution of the suit,
against whom the relief is sought and without whom no effective order can be passed.
A proper party is one in whose absence an effective order can be passed but whose presence
is necessary for complete and final decision on the question involved in the proceedings
Kasturi vs. Iyyam Perumal.55 This case also lays down two tests for determining the question
whether a particular party is a necessary party to a proceeding: 1. There must be a right to
some relief in respect of the question involved in the proceedings; 2. It should not be possible
to pass an effective decree in absence of such a party.

55
, AIR 2005 SC 2183.
If there is a dispute or a cause of action between certain persons, all of such persons becomes
necessary parties.
Non Joinder and misjoinder of parties [Rule 9]: where a person who is a necessary party or a
proper party to a suit has not been joined as a party to the suit, it will become the case of non
joinder. On the other hand, if two or more persons are joined as plaintiffs and defendants in
one suit, in contravention of rule 1 and rule 3 of order 1, and they are neither necessary or
proper parties, then it will become the case of misjoinder of parties.
The general rule is that a suit cannot be dismissed only on the ground of non joinder or
misjoinder of parties nor a decree passed by a competent court on merits will be set aside on
the ground of misdescription of the defendant. However, this rule does not apply in case of
non joinder of a necessary party Diwakar Srivastav v. State of MP.56
Objections as to non joinder or misjoinder of the parties: rule 13, order 1: all the objections
on the ground of non joinder or misjoinder of parties must be taken at the earliest possible
opportunities. Otherwise they will be deemed to have been waived, but if the objection as to
non joinder has been taken by the defendant at the earliest stage and the plaintiff declines to
add the necessary parties, he cannot be subsequently allowed in appeal to rectify the error in
appeal by applying for amendments Naba Kumar v. Radha Kumar.57
Adding or substituting or striking out parties Rule 10 Order 1: Rule 10(1): if after the filing of
the suit, the plaintiff discovers that he cannot get the relief, he seeks without joining some
other person as a plaintiff and also where it is found that some other person and not the
original plaintiff is entitled to the relief an application for addition or substitution of the
plaintiffs can be made. To bring a case under this rule, three conditions must be satisfied:

 The suit has been filed in the name of a wrong person as a plaintiff;
 Such mistake must be bonafide; and
 The substitution or addition of the plaintiff is necessary for determination of the real
matter in dispute.58 Raziya Begum vs Sahebjadi Amwar Begum.
Object of this rule: to save honest litigants or plaintiffs believing in bona fide maintainability
of their claims being non-suited on a mere technical ground. The policy is to decide the real
question in controversy between the parties bypassing the mere technical objections for
defeating a just and honest claim by discouraging the contest purely on technicalities. 59 Anil
Kumar v. Shiv Nath
Striking out or adding the parties, Rule 10 (2): this rule empowers the court to add any
person as party to the suit on any of the two grounds alternatively:

 Such person ought to have been joined as a plaintiff or as a defendant or is not so

joined; or
 Without his presence the question involved in the suit cannot be completely heard or
decided.60 Raziya Begum vs Sahebjadi Amwar Begum; Anil Kumar v. Shiv Nath
This provision confers a wider discretion on the court to meet with every case of defect of
parties and is not affected by the inaction of the plaintiff to bring the necessary parties on the
56
, AIR 1984 SC 468.
57
, AIR 1931 PC 229.
58

59
, (1995) 3 SCC 147.
60
, (1995) 3 SCC 147.
record. Adding of parties is a judicial discretion and has to be exercised judiciously. 61
Ramesh Hirachand vs. Municipal Corporation of Greater Bombay
For exercising the powers under Rule 10(2), the court has to base its decision on sound
judicial principles keeping in mind all the facts and circumstances of the case. The two
considerations which the court should follow while exercising such powers are:

 The plaintiff is dominus litis in the case, which means he is the best judge of his real
interest in the case and normally the court should not compel him to fight against a
person whom he does not want to fight;
 If the court is satisfied that the presence of a particular person is necessary to
effectively and completely adjudicate all the disputes between the parties irrespective
of the wishes of the plaintiff the court may exercise the power and join a person as
party to the suit.62
Raziya Begum vs Sahebjadi Amwar Begum: SC has laid down few principles regarding
the powers of the court to add on the parties to the suit under rule 10(2):

 The question of addition of parties under rule 10 of order 1 is generally not of initial
jurisdiction of the court but is a question of judicial discretion (this is not the way of
assuming jurisdiction) which has to be exercised in view of all the facts and
circumstances of the particular case but may raise controversies in determining the
powers of the court;
 In a suit relating to a property, a person may be added as a party if he has a direct
interest in the subject matter as distinguished from a commercial interest;
 Where the subject matter of litigation is declaration as regard to the status or legal
character, the rule of direct interest may be relaxed in a suitable case where the court
is of the opinion that by adding the party it would be in a better position effectually
and completely to adjudicate upon the controversy.
In 2nd point, it was a suit for ownership and granting the possession of the immovable
property, in the 3rd point, it is only a suit for declaration and therefore commercial interest can
be included. Suits under 3rd point is not for the rights over the property, its only for getting a
declaration.

 The rule of exercising the discretionary power should be exercised cautiously in the
cases of section 42 and 43 of the specific relief act.

REPRESENTATIVE SUIT [ORDER 1, RULE 8]

Rule 8 is an exception to the general principle of civil litigation where it provides that when
there are number of parties similarly interested in the suit, one or more of them, can with the
permission of the court, or upon the directions from the court, may sue or be sued on behalf
of themselves and others. Diwakar Srivastav vs. State of MP
A representative suit is filed by or against one or more persons on behalf of themselves and
others having the same interest in the suit. Either the parties are affected by the same cause of
action or are similarly affected by the acts of other parties.

61
, (1992) 2 SCC 524.
62
Ramesh Hirachand vs. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524; Raziya Begum vs
Sahebjadi Amwar Begum.
Class Action Suit: used in the US jurisdiction.
Difference between class action suit and representative suit??
Object of representative suit: to facilitate the decisions involving large number of persons
who are similarly interested without recoursing to the ordinary procedure of CPC. This helps
in saving time and expenses and ensures a single comprehensive trial of all the questions
involving such numerous persons and avoiding the harassment of parties through multiplicity
of suits.63 Kodia Gounder vs. Velandi Gaunder
The representative suit is an enabling provision, which allows one to use this provision, but it
is not mandatory to get a suit represented. Order 1 Rule 8 is an enabling provision, it neither
compels an individual to represent a body of persons having the same interest not it debars a
member of the community from maintaining a suit in his own right in respect of a wrong
done to him.64 T. N. housing Board v. T. N. Ganapathy,
10. Conditions to be fulfilled to make a suit representative
 The parties must be numerous, it is not required that the number of persons should be
clearly certain nor it amounts to the fact that numerous will represent innumerable.
Therefore, the only question is that the criterion of numerous shall be decided by the
court based upon the facts of each case while taking into account the nature of
controversy and subject matter in dispute;65 Hasan Ali v. Mansur Ali
 They must have same interest in the suit: the term same interest means that an interest
must be common to all of them or they must have a common grievance against which
they want to seek redressal. Therefore, a community of the interest is essential and
acts as condition precedent for bringing a representative suit.66
 The permission must have been granted or directions must have been given by the
court; and
 Notice must have been issued to the parties whom it is proposed to represent in the
suit.

Frame of the Suit (Order 2):

Every suit must include the whole of plaintiff’s claim in respect of cause of action so that as
far as practicable that all matters in dispute between the parties shall be disposed off finally.
It is the duty of the court to see whether it was practicable on part of the plaintiff to include
the entire claim which he had either omitted or intentionally relinquished. [Order 2, Rule 1]
Under Order 2, Rule 2, if a plaintiff fails to bring the cause of action or he has omitted or
intentionally relinquished a portion of the claim then he shall not be allowed afterwards for
invoking the portion so omitted or relinquished. The object of this rule is to protect the
defendant from being vexed twice for the same cause, it is a counter willing measure against
two types of malpractices being practiced in the court which are:

 Splitting up of claims;

63
, AIR 1955 Mad 281.
64
AIR 1990 SC 642.
65
, AIR 1948 PC 66.
66
Kodia Gounder vs. Velandi Gaunder, AIR 1955 Mad 281; T. N. housing Board v. T. N. Ganapathy, AIR 1990
SC 642.
  Splitting up of remedies67 Naba Kumar vs. Radha Shyam, Mohammed Khalil vs.
Mahboob Ali
It was held in these cases that the rule 2 of order 2 provides that a suit must include the whole
of the claim which the plaintiff is entitled to make in respect of the cause of action on which
he sues and if he omits to sue for any relief to which his cause of action would have entitled
him, he cannot claim it through a subsequent suit as the object of this statutory rule is to
prevent multiplicity of suits.
in the case of Deva Kumar vs Ishwar Chand, 1995 6 SCC 733, it was held that Order 2 Rule 2
is based a cardinal principle that a defendant should not be vexed twice for the same cause.
11. Order 2 rule 2 and res judicata
The provision of order 2 rule 2 are penal in nature and therefore should be construed strictly.
This provision is highly technical and deprives a party to a legitimate right which was
otherwise available to him. Hence the plea of res judicata in context of order 2 rule should not
be highly upheld and such plea should be raised at the earliest opportunity. 68 Gurubux Singh
v Bura Lal
Conditions of application of order 2 rule 269

 The second suit which is brought must be in respect of same cause of action as that on
which the previous suit was based;
 In respect of that cause of action, the plaintiff was entitled to more than one relief;
 Being thus entitled to more than one relief the plaintiff without the leave of the court
omitted to sue for the relief for which the second suit has been filed.

Tests laid down in Mohammed Khalil vs. Mahboob Ali, AIR 1949 PC 78.

 The correct test of the cases falling under Order 2 Rule 2 is whether the claim in the
new suit is in fact founded upon a cause of action distinct from that which was the
foundation of the former suit.
 The cause of action means every fact which will be necessary for the plaintiff to prove
if traversed in order to support his right to judgment.
 If the evidence to support the two claims is different then the causes of action are also
deemed to be different.
 The causes of action in the two suits, may be considered to be the same if in substance
they are identical and merely the language of presentation is different.
 The cause of action has no relation whatsoever to the defence that may be set up by
the defendant nor does it depend upon the character of the relief prayed for by the
plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a
conclusion in his favor.
Order 2 Rules 4 and 5: Joinder of Claims
Rule 4 lays down that in the suit for recovery of immovable of immovable property, a
plaintiff is not entitled to join any claim without the leave of the court except:

67
, AIR 1931 PC 239;, AIR 1949 PC 78.
68
AIR 1964 SC 1810.
69
Ibid.
  Claims for mesne profits;
 Arrears of rent in respect of the property claimed or any part thereof.
 Claims for damages for breach of contract under which the property or any part
thereof is held.
 Claims in which the relief sought is based on the same cause of action in the
ongoing suit.
Rule 5, which deals with the suit by or against three classes of persons, i.e. executors,
administrators and legal heirs. It provides that no claim by or against such persons in their
representative capacity shall be joined with the claims by or against them personally in the
same suit except:

 Where the personal arise with reference to the estate he represents;

 Where he was entitled to or liable for those claims jointly with the deceased whom he
represent.
The main object of this rule is to prevent a representative from inter mingling the assets of his
testator with his own estates.

Order 4: institution of the suit

 Order 4 rule 1 read with section 26 talks about presentation of plaint. It lays down that
every suit must be instituted by the presentation of the plaint in duplicate or in any
other manner as prescribed by the court by the plaintiff himself or by his advocate or
through his recognized agent.
 A plaint must be presented to the court or any such officer as is appointed in that
behalf. The presentation of the plaint takes place in the general working days during
the working hours.
 Every plaint must contain necessary particulars like the name of the court, the title,
the cause of action, and the relief sought etc.
 Particulars of every such suit will have to be entered in the registers of the civil suits
as maintained by each court.
 If a suit is instituted by an indigent (whose property is valued below or equal to rs.
1000) person or on behalf of minor or on behalf of dead person, then a statement
giving the effect to the same must be included in the plaint.

Civil Pleading (Order 6)

Order 6, Rule 1: pleadings include both plaint and written statement, in other words,
pleadings are the statements in writing drawn up and filed by each party to a case stating
what his contentions will be at the trial and giving all such details as his opponent needs to
know in order to prepare his case in answer.
Objects of the Pleadings: Dhrob vs. Holdsworth the whole object is to bring parties to
definite issues and to diminish and delay the expenses and to prevent surprises at the stage of
hearing. It helps in ascertaining the real disputes between the parties, thereby narrowing
down the area of conflict and precluding one party from taking the other by surprise so as to
prevent miscarriage of justice.
In Ganesh Trading Company vs Moji Ram,70 it was held that pleadings in civil cases are
meant to give each side intimation of the case of the other so that it may enable the court to
determine the real issue at hand between the parties.
In Virendra Kashinath vs. Vinayak Joshi,71 it was held that the object of pleadings is two
folds:

 To afford the other side intimation regarding the particular facts of his case so that
they may be met by the other side;
 To enable the court in deciding the actual dispute or controversy emerging out of the
factual proposition.
12. Basic Rule for Pleadings (Order 6, Rule 2):
 Sub Rule 1, Rule 2: every pleading shall contain and contain only a statement in a
concise form of the material facts on which the party pleading relies for his claim or
defence, as the case may be, but not the evidence by which they are to be proved.
Additionally, no law is even pleaded.
 General principles governing pleadings:
o Pleadings should state facts and not law
Kedar Lal vs Hari Lal and Ram Prasad vs State of M.P.: The construction of
pleadings can be summarized as “plead facts and not law, which is based on a
principle that a judge if bound to apply the correct law even if incorrect law if
pleaded by a party, however, a mixed question of fact and law should be
specifically raised or pleaded. For e.g. the existence of a custom or usage or
establishing the intention of a party is termed as question of facts.”
o The facts above stated must be material facts (those bundle of facts which the
parties has to prove to establish one’s case and which gives right to the relief
or acts as valid shield and defence). Additionally, other facts which help in
establishing such important facts are even included;
 Udhaw Singh vs. Madhav Rao Scindia:
 Virendra lal vs. stapal singh: all the primary facts which are to be
proved at the trial by a party to establish the existence of a cause of
action or his defence is termed as material facts. It is absolutely
essential that all the basic and primary are pleaded and established by
the party beyond reasonable doubt, however there exists a differnce
between material facts and particulars where non supply of material
facts may entail the dismissal of the suit but non supply of essential
particulars may not lead to the same consequence as material facts are
essential to be proved and material particulars may be refined or
amended even during the stage of pleadings.
o Pleadings should not state the evidences (annexure can be included just to
substantiate the claim)
R M Shashadri vs. G BaSant Pai: the pleadings should contain a statement of
material facts which the party relies but not the evidences through which those
facts are to be proved. There are two types of facts:
 Facta probanda: the facts required to be proved (material facts)
 Facta probantia: the facts by means of which material facts are
proved (particulars or evidences).
70
AIR 1978 SC 484.
71
AIR 1999 SC 162.
 o The facts stated in the pleadings should be in concise form
 Charan lal Sahu vs. Gyani Zail Singh: all the material facts must be
stated in summary form according to the nat+ure of the case.
Immaterial averments and unnecessary details must be omitted and
material allegations and necessary particulars must be included. if due
care is taken through systematic process pleadings can be saved from
tautology.
13. Other rules of pleadings:
o Where misrepresentation, fraud or breach of trust or undue influence are
pleaded in the pleadings, then particulars with dates and time should be stated
specifically.
 Dishnu dev v. sarogani rai: in the cases of fraud, undue influence or
coercion, the parties pleading it must set forth full particulars and the
case can only be decided on the basis of the particulars as laid down in
the court.
o The object of the pleading is to narrow the controversies so as to decide the
issues with precision so as to give proper notice and including all the essential
particulars within the notice itself to be submitted to either parties of the case.
Therefore, the particulars stated in the pleadings should be sufficient and
specific and the court should specifically insist upon the particulars before
proceeding with the trial of the suit.
o The performance of condition precedent need not be pleaded as it is already
implied in the pleadings. Non performance of the condition precedent however
must be specifically pleaded and included by the parties.
o Departure from the pleadings is to permissible and except by way of
amendment, no party can raise any ground of claim or any allegation of fact
inconsistent with previous pleadings.
o A bare denial of contract by the opposite party will be construed only as a
denial of factum of contract and not the legality or enforceability of the
contract.
 Kalyanpur Lime Works ltd. v. State of Bihar AIR 1954 SC 165:
o Documents need not be set out at length in the pleadings unless they are
deemed material.
o Whenever giving of notice to any person is necessary or a condition precedent,
pleadings should only state regarding giving of such notice without setting out
the form or precise terms or such notice or the circumstances from which it is
to be inferred unless they are material.
o Implied contracts or relations between persons may be alleged as a fact and
the series of letters conversations and the circumstances from which they are
to be inferred should be pleaded generally.
o Facts which the law presumes in favor of a party or as to which the burden of
proof lies upon the other side need not be pleaded.
o Every pleading has to be signed by the party or by one of the parties or his
pleaders.
o Pleadings should supply the detailed address of the parties contending as well
as the address of the opposing parties.
o Every pleadings should be verified on affidavit by the party or one of the
parties or by a person acquainted with the facts of such facts.
 o Every pleading must be divided into paragraphs numbered consecutively and
each new averment or allegation or defence should be stated in separate
paragraphs and any date or amount has to be stated in both figures as well as
words.
Alternative pleadings: it conveys a choice on behalf of a party to a litigation and may include
in his pleadings two or more facts or claims or reliefs which may act as an alternative to the
previous relief.
Inconsistent pleadings: it means mutually repugnant, contradictory and destructive or
reconcilable pleadings due to which both the previous or present pleading may not stand in
the court of law because acceptance of one pleading necessarily implies abrogation or
abandonment of the other set of pleadings.
The main object of allowing alternate pleading in one litigation is to obviate the necessity of
another litigation and to decide the controversy in one litigation comprehensively and the
code of civil procedure supports the alternative set of pleadings. 72 Arundhati Mishra vs. Ram
Charitra Panday
How to construct pleadings: strict and specific; it is uniformly stated or held by the Courts
that pleadings in India should be construed strictly in relation to the actual relief sought under
the statute but should not be construed strictly in relation to the form of pleadings thereof and
for the same it may be interpreted liberally. In Madan Gopal vs. mani Ram, AIR 1976 SC
461, where it was held that the pleadings in India are loosely drafted in the courts and the
courts should not scrutinize the pleadings with such meticulous care so as to debar the
genuine claims on trivial or technical claims. In Ram Swaroop vs Bishnu Narayan Inter
college, it was held that pleadings should receive a liberal contruction so as to facilitate the
cause of justice and pedantic (narrow and technical) approach should not be adopted to defeat
the justice on hair splitting technicalities. It is not desirable to place higher emphasis on form
but substance should be looked into specifically.
Striking out pleadings (Rule 16, Order 6): the court is empowered to strike out any pleading
if it is unnecessary, scandalous, frivolous or vexatious or tends to prejudice or embarrass or
delay the fair trial of the suit or is otherwise deemed as an abuse of the process of the court.
In vijay kumar vs tota singh, 2006 (13) SCC 353, the conditions where court could use rule
16 were laid down:

 Where such pleading is unnecessary, scandalous, frivolous;

 Where such pleading tends to prejudice or embarrass or delay the fair trial of the suit
 Where such pleading is otherwise deemed as an abuse of the court proceedings.
The power to strike down pleadings is extraordinary in nature and must be exercised by the
court with extreme care, caution and circumspection.
14. Rule 14-15, Order 6: signature and verification of pleadings
As a general rule, every pleading must be signed by the party or by one of the parties or by
his pleader. But if the party is unable to sign the pleadings, it can be signed by any person so
authorized by him. The verification must be signed on an affidavit by the person verifying
and must contain the date on which and the place at which it was signed. The person
verifying the pleading should also furnish an affidavit in support of his pleadings. It is a well
settled principle that a party can be permitted to adduce evidence on the basis of the case
72
, 1994 (2) SCC 29.
pleaded by him in his pleading and he cannot setup a case inconsistent with his own
pleadings. The purpose for such rule is two folds:

 To appraise the opposite party distinctly and specifically of the case he is called upon
to answer so that he may properly prepare his defense and may not be taken by
surprise;
 To maintain an accurate record of the cause of action as a protection against second or
subsequent proceeding founded upon the same question of law. 73 Om prakash vs. ram
kumar
An objection to pleading should be taken at the earliest. If at an appropriate stage such an
objection is not raised, it is deemed to have been waived as it is based on the principle that in
such cases it cannot be held that a prejudice has been caused to the party by raising a plead at
a belated stage.
Amendment of pleadings [rule 17-18]: as a general rule material facts and necessary
particulars must be stated in the pleadings and the decision of the court cannot be based on
the grounds outside the pleadings but if the party comes up with a fresh information in order
to deliberate the real controversy at hand, it necessitates the reshaping of claims and defence.
The object of the rule is that the court should try the merits of the case that comes before
them and should consequently allow all amendments that may be necessary for determining
the real question in controversy between the parties provided it does not cause injustice,
prejudice to the other side. The court while doing complete justice may allow such
amendment applications in the larger interest of the parties for meeting the relevant criterions
of litigation.
Rule 17 confers a wider discretion on the court to allow either party to amend his pleading at
any stage of the proceeding on such terms as it may deem fit. Such discretion however should
be exercised judicially and inconsonance with well established principles of law. The
provision of rule 17 is not exhaustive and wherever rule 17 does not apply, resort can be
taken to section 151.
15. Leave to amend when can be granted:
The amendment of pleadings application can be granted so as to enable the real question in
issue between the parties to be raised in the pleadings therefore, an amendment application
can be raised in following circumstances:

 Whether the amendment is necessary for the determination of real question in

controversy;
 Can be amendment by allowed without causing injustice to the other side.
The first condition must be satisfied before approving the amendment application as the
cardinal test for granting amendment remains ‘the real controversy in issue.’ No amendment
should be allowed when it does not satisfy this cardinal test. 74 Kishan das vs. rachappa
vithoba
16. Leave to amend when can be refused:
The power to grant amendment is a discretionary power as well as a legal power and no legal
power can be exercised improperly, unreasonably or arbitrarily. In Ganga Bai vs. Vijay
73
, AIR 1991 SC 409.
74
, 1909 ILR Bom.
Kumar AIR 1974 SC 1126, it was held that the power to allow an amendment is wide and
discretionary and such discretionary power should be governed by judicial considerations as
wider the discretion, greater ought to be the care and circumspection on part of the court.
Leave to amend can be refused in the following circumstances:

 Leave to amend will be refused where the amendment is not necessary for the
purpose of determining the real question in controversy between the parties;
 Leave to amend will be refused if it introduces a totality different, new and
inconsistent case or changes the fundamental character of the suit or defence;75 the
test as to whether the amendment should be allowed is whether or not the party can
amend his pleading without placing the other side in a position from which he cannot
be recouped in relation to costs or otherwise.
 Where the effect of the proposed amendment is to take away from the other sidea
legal right already accrued in his favor;76 Charan Das vs. Amir khan AIR 1921 PC
50, the full power to make an amendment on behalf of the court can not be disputed,
those power should be exercised in a way that it does not take away from the
defendant a legal right which has accrued to him by lapse of time but there may be
cases or circumstances where such considerations are outweighed by the special
circumstances of the case itself.
 Where the application for amendment is not made in good faith because as a general
rule, leave to amend ought not to be granted if the applicant has acted malafide.77
Principles regarding amendment of pleadings:

 All the amendments should be allowed which are necessary for determination of real
controversy in the suit;
 The proposed amendment should not alter and be a substitute for the cause of action
on the basis of which the original litigation was filed or raised;
 Inconsistent and contradictory allegations in negation to the admitted position of facts
or mutually destructive allegations should not be allowed to be incorporated by means
of amendment;
 Proposed amendment should not cause injustice or prejudice to the other side which
cannot be compensated by way of costs;
 Amendment of a claim or relief barred by time should not be allowed;
 No amendment should be allowed which amounts to or results in defeating a legal
right to the opposite party on any account (lapse of time, etc.)
 No party should suffer on account of technicalities of law and the amendment should
be allowed to minimize the litigation between parties to the extent possible.
 The delay in filing petition for amendment of pleadings should be properly
compensated for by way of costs.
 Error or mistake which is not fraudulent should not be made a ground for rejecting
the application for amendment of pleadings.
 The principles mentioned herein are illustrative and not exhaustive.
Doctrine of relation back: an amendment is aiming at the main course of pleadings.
Amendment would deem to take an effect from the date when the original suit is filed and not

75
Modi Sewing and Weaving Mills co. ltd. vs. Ladha Ram, (1976) 4 SCC 320; A.K. Gupta and Sons ltd. Vs
Damodar valley corporation, AIR 1967 SC 96.
76
Pirgonda Patil vs. Kalgonda Patil; A.K. Gupta case.
77
Ram Manohar vs. National Building Material Supply, 1969 1 SCC 869; Pirgonda Patil vs. Kalgonda Patil.
form the day on which such amendment is accepted. This doctrine refers to the fact that
normally an amendment relates back to the original course of pleadings but the doctrine is not
absolute, unqualified or of universal application. In appropriate cases, the court may order the
amendment to take an effect from the date of application or from the date of approval and not
from the date the plaint or written statement was actually presented.78
Failure to amend the pleadings (Rule 18)
If a party who has obtained an order to leave to amend does not amend accordingly within the
time specified for that purpose in the order or if no time is specified then within 14 days from
the date of such order, he shall be permitted to amend, after the expiry of which, he may not
be subsequently allowed to amend. The rule is discretionary in nature and the court may on
its own extend the time line or may allow a subsequent amendment depending upon the facts
and circumstances of the case.

ORDER 7 [PLAIN AND WRITTEN STATEMENT]

Rule 1 to 8: particulars of plaint

 The name of the court in which the suit is to be brought;

 The name, description and place of residence of the plaintiff;
 Name, description and place of residence of the defendant;
 Where the plaintiff or defendant is minor or a person of unsound mind, then a
statement of that effect;
 Facts constituting the cause of action and the time when it arose;
 The facts showing that the court have requisite jurisdiction;
 Statement of the value of subject matter of the suit for calculation of requisite court
fees and for pecuniary jurisdiction of the court;
 The relief claimed by the plaintiff, simply or in alternative;
 Where the plaintiff files the suit in a representative capacity, the facts showing that
the plaintiff have actual existing interest in the subject matter and that he has taken
steps to realize such interests;
 Where the plaintiff has allowed a set off or relinquished a portion of his claim, the
amount so allowed or relinquished;
 Where the suit is for recovery of money, the precise amount claimed by the plaintiff;
 Where the suit if for accounts or mesne profits or for movables in possession of the
defendant, the approximate amount or value thereof;
 Where the subject matter of the suit is immovable property, a description of the
property making it sufficiently identifiable;
 The interest and liability of the defendant in the subject matter of the suit;
 Where the suit is time barred, the ground upon which exemption from law of
limitation is claimed;
 Bhagwati Prasad vs Chandra Mohan, AIR 1966 SC 735, it was held that the general
rule is that the relief should be founded upon the pleadings made by the parties in
either written or oral form. To allow one party to rely upon a matter in respect of
which the other party did not lead evidence and hence had no opportunity to lead
evidence would introduce considerations of prejudice and in doing justice to one
78
Brij Kishore vs. Mushtari Khatoon; Vishambhr vs. Lakshi Naraya, AIR 2001 SC 2607 (exception to the above
doctrine).
 party, the court cannot do injustice to another. But the suit cannot be dismissed merely
on the ground that the plaintiff has claimed a bigger relief than he is entitled to as the
court may on its own grant a relief for which the plaintiff is sufficiently entitled.
Rule 9: admission of plaint
It provides for filing of copies of the plaint by the plaintiff and also requires him to pay
requisite court fees as well as the fees for the service of summons within seven days of
the date of such admission.
Return of plaint, rule 10 and 10 B
Where at any stage of the suit the court finds that it has no jurisdiction either territorial or
pecuniary or in relation to the subject matter of the suit, it will return the plaint to be
presented to the proper court in which the suit ought to have been filed.
The judge returning the plaint should make endorsements on it regarding:

 The date of presentation;

 The date of return;
 The name of the party presenting it;
 Reasons for return of plaint.
Rejection of plaint Rule 11
The plaint will be rejected in following cases:

 Where the plaint does not disclose the cause of action;

 Where the relief claimed is undervalued;
 Where the plaint is insufficiently stamped;
 Where the suit is barred by law;
 Where the plaint is not filed in duplicate;
 Where there is non compliance with statutory provisions of this code;
 Any other ground
Procedure for rejection of plaint
Where a plaint is rejected by the court, the judge will pass an order to that effect and will
also record the reasons for such rejections.
Effect of rejection: Rule 13
If the plaint is rejected in any of the above grounds, the plaintiff is thereby preclude from
presenting a fresh plaint on the same cause of action. Such rejection order is appealable
Documents submitted along with the plaint Rule 14-17
a document upon which the plaintiff seeks to rely or has relied is specifically mentioned
that it ought to have been produced in the court along with the plaint, however this
provision does not apply to following documents:

 the documents which are reserved for the purpose of cross examination of the
defendant’s witnesses
  .the documents which are handed over to the witnesses merely for the purpose for
refreshing their memory.
Summons [section 27-29 read with order 5]
A summon is a document issued from the office of court of justice calling upon the person to
whom it is directed to attend before a judge or officer of the court for a certain purpose
whereby an intimation is sent requiring him to appear before the court.
Object: where a suit is filed by the plaintiff against the defendant seeking a relief against him,
the defendant must be given an opportunity as to what he wants to contend in relation to the
case so instituted. This goes in consonance with the principles of natural justice where it
suggests that no one should be condemned unhurt. [audi altrem partem]. It is however the
discretion of the court to make a person appear in a person through any other mode. If the
summon is not served to the defendant, it will not bind him for the purpose of decree.
Essential particulars of the summon (Rule 1 and 2)
A summon issued from the court shall be signed by the judge or such officer as appointed by
him and shall be sealed by the seal of the court and in case of summon being served to the
defendant, it shall be accompanied by the copy of the plaint.
Appearance in person, rule 3: through the successful delivery of summons, the court may
direct:

 A person to appear before it individually or in person;

 The court may direct a pleader on behalf of the person to appear before the court
who have the knowledge of the case and is able to answer all material questions;
 A pleader along with some person who is able to answer all such material
question.
Exemption from appearance in person Section 132-133, rule 4:

 No person shall be ordered to appear in person unless

o He resides within the local limits of the ordinary original jurisdiction of the
court; or
o Outside such limits but not less than fifty miles in case of non availability of
public conveyance and 200 miles in case of availability of public
conveyance.
 A women not appearing in public;
 Any order ground of exception to which a person is entitled under this code.
Contents of summon [rule 5-8]
Every summon must contain a direction as to the date fixed either for settlement of issues or
for final disposal of the suit, in case of final disposal, the defendant should be directed to
produce his witnesses. The court should ensure availability of sufficient time to the defendant
for answering the claims of the plaintiff. The summon should also contain an order asking the
defendant to produce all documents which are in his possession or documents upon which he
seeks to rely during the trial of the suit.
Mode of service of summon [rule 9-30]
The service of summons is of fundamental importance to the civil litigation because as a
matter of general rule, fair trial should be accorded to each and every party whereby he can
defend himself with adequate time. The service of summon has also been an area of concern
for the court as it caused delay in the litigation and therefore taking into account the modern
means of communication, amendments were brought in delivery of summon in 1976, 99,
2002.
Different modes of summons:
Substantive law: the function of substantive law if to define, create or confer substantive legal
rights or legal status or to impose and define the nature and extent of legal studies.
Procedural law: the functionv of procedural law is to provide the machinery or the manner in
which the legal rights, status or duties may be enforced or recognized by a court of law or any
others properly constituted tribunal.
History of Cpc

 Before 1859, no codified procedural law and the court used to decide the matter on
their own terms.
 Due to the mutiny of 1857, the crown introduced CPC in 1859 in the small causes
court and presidency courts.
 In 1877, CPC was largely amended and a new CPC was brought in.
 In 1882, again new CPC was introduced by making tremendous changes.
 Through common dialogue with Indians, new CPC in the year of 1908 was introduced
which was enforced on all courts. It was simplified version and provided for speedy
trials.
 In 1951, a minor amendment was made to make CPC more sort of Indian law.
 In 1976, CPC was further amended.
Objects of CPC 1908

 A litigant should get a fair trial in accordance with the accepted principles of natural
justice.
 Every effort should be made to expedite the disposal of civil suits and proceedings so
that justice may not be delayed.
 The procedure should not be complicated and should to the extent possible ensure a
fair deal to the poorest sections of the community who do not have the means to
engage a pleader to defend their cases.
Objects of amending CPC in 1976:

 Inclusion of doctrine of res judicata.

 Power to transfer proceedings from one high court to another high court is given to
Supreme Court. [jaylalitha Case, from Tamil Nadu to Karnataka]
 Freedom form attachment of a portion of salary to all salaried employees is granted.
 0Provision of giving notice under §80 before the institution of the suit against the
government for a public office was made less stringent so as to facilitate justice
delivery.
 Restriction was imposed on the right of appeal and revision. Appeal is merely a
statutory provision.
 Provisions were made to ensure that written statement and documents are filed before
delay.
 Important changes were made to provide relief to poorer sections of the society.
Letters patent: an appeal can move laterally within one hierarchy court.
But even after this, a government report suggested that the average time taken for disposal is
5-6 years and cases are not fastly resolved. Under the chairmanship of Justice Mallimath, a
committee was formed which provided for the faster disposal of cases.
The Supreme Court even pointed out the same things in the case of Salem Bar Association I,
where SC focused that essential amendments are needed to be undertaken.
The amendments of 1999 and 2002 were implemented but a new scope was created through
grant of discretionary power to the judges for final say. The reason being the protest from the
advocates on genuine grounds of justice delivery and Salem II case.
Major amendments brought in through 1999-2002 amendments:

 In several matters such as issuance of summons, filing of written statement,

amendment of pleadings, production of documents and examination of witnesses a
time limit is prescribed. It was a matter of self imposed duty on the courts. A limit of
7 days was made but it was further diluted through the Salem II case and if there are
genuine grounds of delay, such delay could be accepted.
 A new provision for settlement of disputes outside the court has been introduced. Out
of the bounds of the court technicalities. The court may even appoint an appropriate
person for the settlement of the dispute outside the court and after the finality of the
settlement, the settlement has to be presented in the court and a decree would be issue
on those grounds so that any of the parties may not revert the matter back to the court
after some time.
 The number of adjournments has been restricted. Initially it was restricted to 3.
 A provision of recording the evidences by the court appointed commissioner was
introduced to save the time. Qualified to be a lawyer, is neutral to the matter and
knows the court procedure. Such person has to be submit the report of all his findings,
evidences and witnesses statements to the court and have to authenticate the evidences
produced in the court. After the dilution, the advocates can ask the court not to
appoint the commissioner and court may exercise discretion by not appointing the
commissioner.
 Endless arguments were aimed to be shortened by empowering the court to fix a time
limit on oral arguments and by permitting to place written arguments on record by the
parties. Ayodhya case, SC ordered the special CBI court to complete the hearing
within 2 years by limiting the arguments. Dilution: The court may fix and on the
ground of genuine issues the court may extend the pre-fixed time line. Therefore, no
rigid provision was placed.
 The scope of first appeal, second appeal, letters patent appeal and revision has been
curtailed. On what grounds the appeal is preferred, such grounds should be
exceptional and can the same question be raised before the appellate court. And even
if some argument is not presented in a lower court and such point is raised in the
appellate court, such arguments are restricted. Revision is only restricted to deal with
the error present in the existing judgment.
If any point is dealt by CPC, then CPC becomes exhaustive and have a greater say. In other
cases, provision of CPC may not be applied because if applied it can make the matters
complicated before such matters were deliberately not included in CPC so as to ease the
justice delivery. [The code of civil procedure is exhaustive on matters which are specifically
dealt by it but it is not exhaustive on those points which are not specifically dealt or intended
to be touched upon therein. Manohar Lal v. Seth Hiralal AIR 1962 SC 527].
Important definitions:

 Decree: the decree is defined under S 2(2) of CPC where it says that decree means the
formal expression of adjudication by the court which conclusively determines all or
any of the matters in controversy in the present suit which may either be preliminary
or final. It shall be deemed to include the order of rejection of a plaint but shall not
include- any adjudication from which an appeal lies as or in the form of an appeal
from an order (appealable order), any order of dismissal of suit for default.
Essential conditions of a decree:
o There must be adjudication: we essentially include judicial or quasi judicial
adjudication. For the purpose of decree, adjudication shall mean judicial
determination of the matter in dispute. Therefore, a decision on a matter of
administrative nature or an order dismissing the suit for default of appearance
by parties cannot be termed as a decree. Similarly and order passed by an
officer who is not a court or not vested with any kind of judicial power by law
is not a decree. [Deep Chand v. Land Acquisition Officer, AIR 1994 SC
1901]
o Such adjudication must be there in a suit. Suit is not defined in cpc. It was
defined in the case of Hansraj Gupta v. Official liquidators of Dehradun
mussoire electric tramway company lmt. [AIR 1933 PC 63] where the
court stated that, any court proceeding in cpc initiated by the presentation of a
plaint. The word suit ordinarily means a civil proceedings instituted by the
presentation of a plaint. Thus every suit has to be instituted by presenting a
plaint, and without being a suit, there cannot be a decree.
o Right of parties in controversy are to be determined: substantive rights and not
procedural rights. For any kind of procedural order, its merely a form of order
and not a decree. Such procedural rights would be exercised by submission of
certain applications. Whereas the substantive rights are determined through the
merit and subject matter of the case. The word rights, for this purpose
essentially means, substantive rights of the parties and not merely a procedural
right. [Dattatraya v. Radha Bai AIR 1921 Bom 220]. The substantive rights
of the parties, includes any rights relating to the status, jurisdiction, frame of
the suit etc. thus an order for dismissal of a suit for default of a appearance or
an order of refusing the leave to sue in informa pauperis etc. do not determine
the substantive rights of the parties and hence are not construed to be a decree.
In the conditions where procedural rights are even determined with substantive
right, such orders would even be called decree.
o Conclusive determination of rights: the court has finally decided one right in a
suit and that determination remains final remains final for the entire suit in that
particular court. If multiple rights are to be determined, determination of every
single rights would be called as decree even though all the rights may not be
determined at that stage. The determination must be final and conclusive as
regards to be court which passes it. [Narayan chandra v. Pratirodh Sahini].
An inter locutory order which does not decide the rights of parties finally like
refusal of adjournment etc. are not decrees because they do not lead to any
conclusive determination on merits of the case.
o Formal expression: there must be a formal expression of such adjudication
which means that all the requirements of the form or suit must be complied
 with and it must be deliberate in manner and should be according to the
procedure prescribed by the law. In case of formal expression it is the decree
which follows the judgment and must be drawn up separately. Shakultala
devi v. kuntal kumari. Operative order acts as judgment when multiple
decrees are passed before the actual judgment.
Order or decisions which are decrees:

 Order of abatement of suit: decision of legal ground regarding the fact that the parties
are having certain rights or not. Order of integration and disintegration of rights even
are called decrees. Decision on the merits of the case which carries the effect of
conclusive determination of right.
 Dismissal of appeal as time barred: the right of reaching to the court is exhausted and
therefore this decision acts as the conclusive document of the appeal. Therefore, the
original order of the lower court stands.
 Dismissal of suit or appeal for want of evidence or proof: these kind of matters and
cause of actions are mere claims as no evidence are produced. And this dismissal is
res judicata so that they the parties cannot go to court of the same level. Even such
decisions are being made on merits of the case, therefore it have the effect of a decree.
and this has an indirect effect on the other party as this order allows the defendants to
continue to do whatever they were doing before this suit.
 Order holding appeal not maintainable: the decision of lower court stand and the
parties are directed to do whatever they were doing. Indirect conclusive decision on
the rights of the parties.
 Order holding that right to sue does not arise: as it mere statutory right
 Order holding that there is no cause of action:
 Order refusing one of the several reliefs: the reliefs which are rejected cannot be
raised in court again and therefore such decision is also final.
Decisions which are not decrees:

 Dismissal of appeal for default: no merit of the cases discussed. But ex parte decisions
are decrees.
 Appointment of commissioner to take accounts: mere collection of evidences. Subject
matter of the suit is not in any way being decided. Just the submission of report
regarding his studies.
 Return of plaint for presentation to a proper court:
 Rejection of application for Condonation of delay: it not the discussion of the merit of
the case.
 Order directing assessment of mesne profits.
Preliminary decree and final decree
A preliminary decree is one which declares the rights and liabilities of the parties leaving the
actual result to be worked out in further proceedings as a result of inquiries conducted
pursuant to the preliminary decree, the rights of the parties would then be fully determined
and a decree is passed in accordance with such determination which is final. Both the decrees
has to be in the same suit. A final decree may said to be final in two ways: 1. When the time
for appeal has expired without any appeal being filed against the preliminary decree or the
matter has been decided by the highest court 2. When the time for appeal has expired without
any appeal being filed against the preliminary decree and the matter stands completely
disposed of. [Shankar v. Chandrakant AIR 1995 SC 1211].
Preliminary decree: when an adjudication decides the rights and liabilities of the parties with
regard to all or any of the matters in controversy in this suit but does not completely dispose
of the suit, it is called as preliminary decree. it is only a stage in working out the rights of the
parties which are to be finally adjudicated by a final decree and till then the suit continues.
[Mool Chand v. Director, Consolidation AIR 1995 SC 2493]
The cpc provides for passing of preliminary decrees in following circumstance:

 Suits for possession and mesne profits, order 20 rule 12

 Suit for dissolution of partnership, order 20 rule 15
 Suit for partition and separate possession, order 20 rule 18
 Suits for sale of mortgaged property, order 34 rule 4 and 5
 Suit for redemption of a mortgage, order 34 rule 7 and 8. A court may pass a
preliminary in cases not expressly provided by CPC.
Situation where multiple preliminary decrees can be passes: e.g. 1 st and 3rd from above list.
Phool chand v. Gopal lal [AIR 1967 SC 1470] there is nothing in cpc which prohibits
passing of more than one preliminary decree if the circumstances justify the same and it may
be necessary for the court to do so. Limitation: but the above observation is restricted to
partition suits alone. Later on, the limitation was lifted and now it all depends on the
discretion of the Court which may decide it on the facts and circumstances.
Final decree: final decree is said to be final in two ways:
1. when within the prescribed period, no appeal is filed against the decree or the matter has
been decided by the highest court.
2. when the decree, so far as regards to the court passing it, completely disposes of the suit.
[Shankar v. Chandrakant 1995 3 SCC 413]
There can be more than one final decree. but it may defeat the essence of Cpc as multiple
appeals has to be made for multiple decrees, as it may make the procedure slow.
1. Gulsum Bivi v. Ahmadasa Rowther, AiR 1919 Mad 998: order 20, rule 12 and 18 was
challenged, the court held that: neither of these rules contemplates more than one preliminary
decree and one final decree in one suit. The cpc nowhere contemplates more than one final
decree in one suit. To have two final decrees and to call one decree final or the first one as the
final decree will be a misnomer as it will not be final.(disabling interpretations)
2. Kasi V. Ram Nathan Chettiar 1947 2 MLJ 523: the court observed that the question is
not whether cpc allows more than one preliminary decree or one final decree to be made but
whether the code contains a prohibition against the court in a proper case passing more than
one such decrees and the court took a divergent view and held that there could be more than
one preliminary and one final decree in a suit. (Negative Interpretation) (enabling
interpretation)
3. Shankar v. Chandrakant AIR 1995 SC 1211: it is a settled law that more than final
decree can be passed.
Partly preliminary and party final decree
A decree may be partly preliminary and partly final like in a suit for possession of immovable
property with mesne profits where the court,
1. decrees the possession of the property
2. directs an enquiry into the mesne profits
The former part of decree is final whereas the latter part is preliminary.
Rejection and return of Plaint: There is always jurisdiction remains in the court. It have the
nature of decree. Section 2(2) specifically provides that rejection of plaint shall be deemed to
be a decree whereas an order returning a plaint or memorandum of appeal to be presented to
proper court will not be a decree. the reason is that such an order does not negate any rights
of the plaintiff or appellant in any manner and therefore it cannot be termed as a decision
relating to the matters in controversy in the suit.
Restitution: only if it is demanded as a right or demanded as a relief. Determination of any
question under Section 144 or within its meaning is termed as restitution and is included
within the meaning of decree for the purpose of giving the right to appeal only under the
circumstances where it leads to the adjudication on the aspects of the rights in the
controversy. Otherwise if it is neither made in a suit nor is asked as a matter of right then it
will not be termed as a part of decree.
Appealable orders: an adjudication from which an appeal lies just like an appeal from or
against a decree are termed as appealable orders e.g. orders like returning plaint for
presentation to a proper court or rejecting an application to set aside an ex parte decree or an
order rejecting an application for permission to sue as an indigent person are called as
appealable order and not decrees. The distinction between a decree and an appealable order
lies in the fact that in case of a decree second appeal lies in certain cases whereas for an
appealable order there is no provision for second appeal.
Judge: it means the presiding officer of a civil court. Although the term court has not been
defined in CPC, it can commonly be referred as assembly of judges or other persons acting as
a tribunal in civil or criminal cases where the justice is judicially administered. [E. D.
Sinclair v. L.P.D Brougton]
Judgment: Section 2(9), it means the statement given by a judge of the grounds of a decree
or an order. It is more sort of universal nature. Essential elements of judgment:

 The essential elements of a judgment is that there should be a statement laying down
the grounds of the decision. [Vidya Charan Shukla v. Khub Chand Baghel, AIR
1964 SC 1099]
 Every judgment other than that of small causes court should contain
o A concise statement of the case;
o Points of consideration;
o The decision thereon;
o The reasons for the decisions.

Balraj Taneja v. Sunil Madan AIR 1999 SC 3381: a judge cannot merely say ‘suit decreed
or suit dismissed.’ The whole process of reasoning has to be set out for deciding the case one
way or the other. Even the small causes court judgments must be intelligible and must show
that the judge has applied his mind. The judgment need not be on all the issues in a case and
may even be on a preliminary issue itself.
Distinction between judgment and decree:

 A judgment is the statement given by the judge laying down the grounds of a decree.
Whereas decree is the enforcement of the rights developed on the basis of the
reasoning pronounced in the judgment.
 It is not necessary that there should be a formal expression of every order in the
judgment though it is desirable. Whereas for a decree it essentially has to be a formal
expression.
 A judgment has to include precisely the relief granted, rule 6-A of order 20 inserted
by 1976 amendment.
Order: order means the formal expression of any decision by the civil court which is not a
decree. section 2(14).
Order is also a formal expression. Order may also include a determination by the court on a
specific issue and even decide the rights of the parties. But it does not pronounce the
conclusive determination. As a general rule an order of a court of law is based on objective
considerations and may contain a discussion of the question at issue and the reasons which
prevailed within the court which lead to the passing of the order.
Similarities between order and decree:

 Both relates to matters in controversy

 Both are the decision given by the court.
 Both are judicial adjudication pronounced by the court
 Both are formally expression of a decision.
The difference between order and decree:

 A decree can only be passed in a suit or civil proceedings which commenced with
presentation of a plaint whereas and order may originate even from a proceeding
which commenced through an application.
 A decree is an adjudication conclusively determining the rights of the parities with
regard to all or any of the matter sin controversy. Whereas the order may or may lead
to an conclusive determination of any such right.
 A decree may be preliminary or final or partly preliminary or partly final whereas
there cannot be a preliminary order.
 Except in certain suits, mostly, a suit will have two decrees, one preliminary and one
final or may even have a single final decree. within civil suit or proceeding depeding
on the number of applications, there can be multiple orders.
 Every decree is appealable unless otherwise expressly provided. Only those orders for
which a provision for appeal is mentioned in CPC are appealable.
 A second appeal lies to the high court on certain grounds from the decree passed on
first appeal. No second appeal is allowed even in case of appealable orders.
Decree holder: Any person in whose favor a decree has been passed or an order capable of
execution has been made is called decree holder. Section 2(3). Decree holder need not
necessarily be a plaintiff.
Judgment debtor: any person against whom a decree has been passed or an order capable of
execution has been made. Section 2(10).
Foreign court: foreign court means a court situated outside india and not established or
continued by the authority of central government. E.g. Pondicherry in 1908.
Legal representative: legal representative means a person who in law represents the estate
of a deceased person and includes any person who intermeddles with the estate of the
deceased person and where a party sues or is sued in a representative character, the person on
whom the estate devolves on the death of the party so suing or sued.
Decree and legal documents are even part of estate. So it is transferable asset and can be a
responsibility even.
Mesne Profits: mesne profits means those profits which the person in wrongful possession of
such property actually received or might with ordinary diligence have received together with
interest on such profits but shall not include profits due to improvements made by the person
in such wrongful possession. Section 2(12)
Object of mesne profits: every person has a right to possess his property and when he is
deprived of such possession, he is not only entitled to the restoration of such possession but
also damages on account of such wrongful possession. Thus the object of decree for mesne
profits si to compensate the person who has been kept out of possession of his property and
has been deprived of his right of peaceful enjoyment of his property even though he was
entitled to such possession thereof. [Lucy Kochuvareed v. P. Mariappa Gounder AIR
1979 SC 1214]
Criterion for Assessment of Mesne Profits: a person who is in wrongful possession and
enjoyment of immovable property is liable for mesne profits. Where the owner or plaintiff is
dispossessed by several persons every one of them would be liable to pay mesne profits even
though they might not be in actual possession or the profits have not been received by them.
In such cases the court may hold all the possessors jointly and severally liable leaving them to
have their rights adjusted in a separate suit for contribution or within the same suit through
division of liability among each of them.
Mesne profits are in the nature of damages and while assessing the mesne profits the court
usually take into account what the defendant has gained or reasonably might have gained by
his wrongful possession of the property. The court may decide the mesne profits according to
the facts and circumstances. [Fateh Chand v. Balkishan das AIR 1963 SC 1405].
The test to ascertain mesne profits is not what the plaintiff has lost by being out of possession
but what the defendant has gained or might reasonably with ordinary prudence have gained
by such wrongful possession. [Marshall Sons & Co. v. Sahi oritrans Pvt, Ltd. AIR 1999
SC 882]
Principles for calculation mesne profits:

 No profits by a person in wrongful possession.

 Restoration of status before dispossession of decree holder.
 Use to which a decree holder would have put the property if he himself was in
possession.
Interest over mesne profits: interest is an integral part of mesne profits which has to be
allowed in computation of mesne profits itself. the rate of interest allowed over mesne profits
shall not exceed 6% per annum and such interest can be allowed till the date of final payment.
[Mahant Narayan Das ji v. Tiruumalai Tirupati Devasthanan AIR 1965 SC 1231].
Affidavit: it is a declaration of facts reduced to writing and affirmed or sworn before an
officer having authority to administer oaths. It should be drawn up in first person and should
contain statements and not inferences.
Cause of Action: bundle of essential facts which are necessary for the plaintiff to prove
before he can succeed. It is an antecedent to the suit and if the plaint fails to disclose the
cause of action, the court will reject such plaint.
Caveat: caveat is an official request that a court should not take a particular action without
issuing notice to the party lodging the caveat and without affording an opportunity of hearing
them. Going to the court before the other party approaches.
Plaint: a plaint is a statement of claim, a document or a memorial by the presentation of
which a suit is instituted. It contains the grounds on which the assistance of the court is
sought by a plaintiff and also referred to as the pleadings of the plaintiff.
Summons: it is a document issued from the office of a court calling upon the person to
whom it is directed to attend before a judge or an officer of the court for a certain purpose. It
is a written order that legally obligates someone to attend a court of law at a specified date.
Written statement: it is considered as a reply of the defendant against the plaint filed by the
plaintiff. It is referred as pleading of the defendant dealing with every material fact raised in
the plaint. It may also contain new facts discussed which are in favor of defendant or legal
obligations against the claims of a plaintiff brought before the court.
Jurisdiction of the court: a litigant having grievance of civil nature has a right to institute a
civil suit in a competent civil court unless its cognizance is either expressly or impliedly
barred by any statute. [Abdul Waheed Khan v. Bhanwani AIR 1966 SC 1718]. A suit for
its maintainability requires no authority of law and it is enough that no statute bars it. [Ganga
Bai v. Vijay Kumar AIR 1974 SC 1126]. The court cannot confer jurisdiction to itself, it is
only in the power of the legislature to decide the jurisdiction of the judiciary. Any decree
passed without jurisdiction is null in eyes of law. Consent to fix the jurisdiction of an
empowered court is valid.
Jurisdiction means the power or authority of a court of law to hear and determine a cause or
a matter. It is the power to entertain and decide a suit or civil proceeding.
In the case of Official Trustee v. Sachindra Nath AIR 1969 SC 823, the court held that a
court must not only have jurisdiction to try the suit brought but must also have the authority
to pass the order sought for. Jurisdiction must include power to hear and decide the question
at issue and decide the particular controversy that has arisen between the parties. if the court
cannot pass the relief prayed for, then the court do not possess the jurisdiction to adjudicate
the case.
Jurisdiction and consent: [A R Antulay v. R S Nayak AIR 1988 SC 1531], the power to
create and enlarge jurisdiction is legislative in character and so also the power to confer a
right of appeal or could take away the right of appeal. No court whether superior or inferior
or both combined can enlarge the jurisdiction of a court or divest a person of his rights of
revision and appeal.
Hirendra Nath v. Sudhir Verma AIR 1964 SC 1300: if the court has no inherent
jurisdiction neither acquiescence nor waiver nor estoppel can create it. Such a basic and
fundamental defeat cannot be cured by consent of parties or by the judgment or order passed
by a court. The decree so passed is null and void and can be challenged at any stage.
The court cannot create jurisdiction but can enlarge it. Interpretation of jurisdiction is allowed
but conferring jurisdiction on itself is not allowed.
Kiran singh v chaman Paswan AIR 1954 SC 340: it is a fundamental principle well
established that a decree passed by a court without jurisdiction is a nullity and that its
invalidity could be setup whenever and wherever it is sought to be enforced or relied upon.
Even at the stage of execution and even in collateral proceedings. A defect of jurisdiction
strikes at the very authority of the court to pass any decree and such a defect cannot be cured
by consent of parties.
Jurisdiction of a court is a public policy and passed by the parliament and therefore
individuals cannot decide the jurisdiction in their private capacity.
Lack of jurisdiction and irregular exercise of jurisdiction: there is always a distinction
between want of jurisdiction and irregular exercise of jurisdiction. Once it is held that a court
has the jurisdiction to decide a matter and to entertain it, the correctness of the decision given
cannot be said to be without jurisdiction in as much as the power to decide necessarily carries
with it the power to decide wrongly as well as rightly. [Ujjam Bai v. State of UP AIR 1962
SC 1621]. If a court has the jurisdiction but it is irregularly exercised and the defect does not
go to the root of the matter and the error if any in exercising the jurisdiction can be remedied
in appeal or revision and when there is no such remedy or is not availed of then the decision
is final.
Ittyavira Mathai v. Varkey AIR 1964 SC 907: the contention was that the decree passed by
the court is nullity as the suit was time barred and the court did not take into cognizance of
this fact so there was lack of jurisdiction. If the party aggrieved does not take appropriate
steps to have the error corrected, the erroneous decree will hold good and will not be open to
challenge on the basis of it being a nullity. It is regular exercise of jurisdiction and as no steps
were taken by the aggrieved party, no remedy available.
In the case of Anisminic Limited v. foreign compensation commission 1969 (1) All ER
208, the difference between these two terms is being assimilated.
M L Sethi v. R P Kapur 1972 2 SCC 427, after anisminic case, every error of law is a
jurisdictional error. The distinction between jurisdictional and non jurisdictional error is
based upon a foundation of sand. Much of the superstructure has already crumbled. What
remains is likely to quickly fall away as the courts rightly insist that all administrative actions
should be simply lawful whether or not jurisdictionally lawful.
Basis of deciding a jurisdiction: the court goes by the decision of the jurisdiction only on
the facts mentioned in the plaint. If the plaint is not clear, the court will see that if the written
statement contains any legal objection regarding the jurisdiction. It is a well settled principle
that for deciding the jurisdiction of the civil court, the averments made in the plaint are
material or the jurisdiction of the court should normally be decided on the basis of the case
put forward by the plaintiff in his plaint and not by the defendant in his written statement.
Abdullah bin Ali v. Galappa AIR 1985 SC 577, the supreme court observed that there is no
denying to the fact that the allegations made in the plaint decide the forum. The jurisdiction
does not depend upon the defence taken by the defendants in their written statements.
Bank of baroda v. motibai AIR 1985 SC 545: on the question of jurisdiction one must
always have regard to the substance of the matter and not to the form of the suit. The way in
which suit is brought is not relevant.
Section 9 of cpc: jurisdiction
Kinds of jurisdiction:

 Civil and criminal jurisdiction: ancient, civil deals with the private rights of the
individuals.
 Territorial or local jurisdiction: where is the particular court which hears the
particular type of matter. On the basis of limited geographical limit, certain courts
would be established who would entertain matters pertaining to that geographical
area. Every court has its own local or territorial limits beyond which it cannot exercise
its jurisdiction. These limits are fixed by the legislature or government. The district
has the authority to exercise the jurisdiction within a district, the high court has the
authority within the state where it is situated or any other territory vested to it by law.
A court has no jurisdiction to try a suit for immovable property situated beyond its
local limit.
 Pecuniary jurisdiction: cpc provides a court will have jurisdiction only over those
suits the amount of value of the subject matter of which does not exceed the pecuniary
limits of its jurisdiction. There are certain courts without any pecuniary limit and
other categories may have a pecuniary limit.
 Subject matter jurisdiction: prevalent form of jurisdiction: different courts have
been empowered to decide different types of suits. Certain courts are precluded from
entertaining a certain category of suits. For e.g. presidency courts have no jurisdiction
to try suits for specific performance because specific performance may not preclude
any specific Act.
 Original and appellate jurisdiction: original jurisdiction is the jurisdiction inherent
or conferred upon a court of first instance. Appellate jurisdiction is the power or
authority conferred upon a superior court to rehear by way of appeal of revision of
matters which have been tried and decided by the courts of original jurisdiction.
 Exclusive and concurrent jurisdiction: exclusive jurisdiction is that which confers
sole power on one court or tribunal to try and decide a case. Concurrent jurisdiction is
the jurisdiction which may be exercised by different courts or authorities between the
same parties at the same time over the same subject matter and the option is present to
a litigant to invoke jurisdiction of any such court.
 Legal and equitable jurisdiction: Legal jurisdiction is a jurisdiction exercised by the
common law courts in England while equitable jurisdiction is exercised by court of
equity. In india, the courts are of both law and equity.
Jurisdiction of a civil court:
Section 9, the courts shall have jurisdiction to try all the civil suits of the civil nature
excepting suits of which the cognizance is either expressly or impliedly barred.
Explanation 1: from the inception
Explanation 2: inserted through amendment in 1976.
The conditions of section 9: court have jurisdiction subject to two conditions:

 The suit must be of civil nature: it pertains to private rights and remedies of a citizen
as distinguished from criminal political or religious matter. Thus a suit is of civil
nature, if the principle question therein relates to the determination of a civil right and
enforcement thereof. Political and religious questions are not covered by this
expression. E.g. a suit which the principle question of a caste or religion is not of civil
nature but if the principle question is of civil nature and it incidentally carries the
question of caste and religious rights, it does not cease to be a suit of civil nature and
the jurisdiction of the civil court is not barred. [P M A Metropolitan v. Moran Mar
Marthoma AIR 1995 SC 2001]. In this case, it was held that the civil suits related to
the matter that the jurisdiction of a court is presumed if it entails within a question of
private right or obligation. No court can refuse to entertain such matters if the
cognizance is not barred. The section 9 would therefore be available in every case
where the dispute was of the characteristic of affecting one’s rights which are not only
civil but of civil nature. All the rights may be civil but not of civil nature.
Constitutional matter, political matter and religious matters are even civil matters but
not of civil nature as they are the elements of public policies.
 The cognizance must have been barred either expressly or impliedly
o Suits expressly barred: a suit is said to be expressly barred when it is barred by
any enactment for the time being in force. It is open to a competent legislature
to bar jurisdiction of civil court with respect to a particular class of suits of
civil nature provided that in doing so it keeps itself within the field of
legislation conferred on it and does not contravene any provision of the
constitution. [State of Vindhya Pradesh v. Moradhwaj Singh AIR 1960 SC
796]. This provision is also related to the concept of doctrine of separation of
powers. Every presumption should be made in favor of the jurisdiction of a
civil court and the provision of exclusion of jurisdiction must be strictly
construed. If there is any doubt about the ousting of jurisdiction of a civil
court, the court will lean to an interpretation which would maintain the
jurisdiction. [Dhula Bhai v. State of M P AIR 1969 SC 78 and Bharat kala
Bhandar Pvt. Ltd. v. Municipal Committee Dhaman Gaon AIR 1966 SC
249]. Further, if the remedy provided by the statute is not adequate and all
questions cannot be decided by the special tribunal, the jurisdiction of a civil
court is not said to be barred. [State of Tamil Nadu v. Ramlinga Samigal
AIR 1986 SC 794].
o Implied Bar: a suit is said to be impliedly barred when it is barred by general
principles of law. Where a specific remedy is there given by a statute, it
thereby deprives the person who insists upon a remedy of any other form than
that given by the statute. [Premier Automobiles v. Kamleker Shantaram
AIR 1975 SC 2238]. In this case, it was also held that where an act creates an
obligation or enforces its performance in a specified manner, that performance
cannot be enforced in any other manner. Certain suits, even if of being a civil
nature, the cognizance may be barred by the civil court on the basis of public
policy. [Indian Airlines Corp. v. Sukhdev rao AIR 1971 SC 1828]. The
civil courts has no jurisdiction to adjudicate or enlarge its mandate to take up
the relief sought of any other nature and thereby it acts as an implied bar over
such types of relief.
Suits of civil nature are

 Suits relating to the rights to property;

 Suits relating to taking out of religious procession;
 Suits relating to shares in offerings;
 Suit relating to specific performance of contract or damages for breach of contract;
 Suits for restitution of conjugal rights and dissolution of marriage;
 Suits relating to rights to franchise;
 Suits for rents;
 Suits for accounts.
Suits which are not of civil nature

 Suits involving principally caste questions;

 Suits involving purely religious rights and ceremonies;
 Suits for recovery of voluntary payments or offerings;
 Suits against expulsions from caste.
Objection as to exclusion of the jurisdiction of the civil court: a litigant having a grievance
of civil nature has independent of any statute a right to institute a suit in a civil court unless
its cognizance is either expressly or impliedly barred. The exclusion of jurisdiction of civil
court is not to be readily inferred and such exclusions have to be proved beyond reasonable
doubts in order to establish the objection as to jurisdiction. [Dhula Bhai v State of MP AIR
1969 SC 78].
1. Secretary of State v. Mask and co. AIR 1940 PC 105: it was held that it is settled law
that exclusion of jurisdiction of civil courts is not to be readily inferred but that such
exclusion must either be explicitly expressed or clearly implied. It is also well established
that even if such jurisdiciiton is so excluded, the civil courts will have jurisdiction to examine
into the cases where the provisions of the act have not been complied with or the statutory
tribunal has not acted in conformity with the fundamental principles of judicial procedure.
2. seth Radhakrishan v. Administrator Municipal Committee, Ludhiana AIR 1963 SC
1547: a suit in a civil court will always lay to question the order of a tribunal created by a
statute even if its order is expressly or by necessary implications made final, if the said
tribunal abuses its power or does not act under the Act, but in violation of its provision.
3. Dhula Bhai v. State of MP (justice hidaytullah):
Principles laid down as to the exclusion of the jurisdiction;

 Where a statute gives finality to orders of special tribunals, the civil court’s
jurisdiction must be held to be excluded if there is adequate remedy to do what the
civil courts would normally do in a suit. Such a provision however does not exclude
those cases where the provisions of a particular Act have not been complied with or
the statutory tribunal has not acted in conformity with the established principles of
judicial procedure.
 Where there is an express bar on the jurisdiction of the court, an examination of the
scheme of the Act to find out the adequacy or sufficiency of the remedies provided
may be relevant but this is not decisive for sustaining the jurisdiction of a civil court.
The reason being that where there is no express exclusion, the examination of the
 remedies and schemes of the particular act and the enquiry laid within to analyze so
may be decisive for the purpose of exclusive of jurisdiction.
 Challenges to the provisions of a particular Act as ultra vires cannot be brought before
tribunals constituted under that Act. Even the high court cannot go into that question
being brought in form of revision or reference against such tribunals.
 When a provision is already declared unconstitutional or the constitutionality of any
provision is to be challenged, a suit is always open. A writ of certiorari may include a
direction for refund of claims if the claim is clearly within the purview of the Act but
it is not a compulsory remedy to replace the suit.
 Where the particular Act contains no machinery for refund of tax collected in excess
of the constitutional limits or is illegally collected, a suit lies.
 Questions of correctness of an assessment cannot be brought through a civil suit if the
Act lays down them to be final and binding or there is an express prohibition under
the particular itself making such suits not maintainable.
 An exclusion of jurisdiction of civil court is not supposed to be readily inferred unless
the conditions above said are applicable to the case or a particular situation.
Another important case is premier Automobiles V. Kamleker Shantaram, it is related to
issue of industrial dispute and issue of conflict of jurisdiction with the civil court

 If a dispute is not an industrial dispute nor does it relates to enforcement of any

right, under the statute or any Act, then the remedy in the civil court.
 If a dispute is an industrial dispute, arising out of a right or liability under the
general or common law, and not under the Act , the jurisdiction of civil court is
alternative, leaving it to the selection of the suitor or person concerned to choose
his remedy for the relief which is competent to be granted in the particular
situation.
 If an industrial dispute relates to the enforcement of a right or an obligation
created under the Act, then the only remedy available to the suitor is to get
adjudication under the Act itself.
 If the right which is sought to be enforced is a right created under the Act such as
Chapter V-A then the remedy for its enforcement is either Section 33-C or the
raising of an industrial dispute, as the case may be.
Rsrtc v. krishna kant AIR 1995 SC 1715:

 Where a dispute arises from the general law of contract that is where releifs are
claimed on the claimed on the basis of obligations arising out of such contract may
not be said to be maintainable in the civil courts even if such disputes constitute
industrial dispute within the meaning of section 2(k) of IT Act.
 Where a dispute involves recognition or observance of any rights or obligations
created by the Act, the only remedy is to approach the adjudication forum established
under such Act.
 Where the dispute involves the recognition of rights and obligations of the sister
enactment to the major law enforced which may not provide a separate adjudication
forum for redressal of disputes, the only remedy shall be to approach the forums
created by the major laws, whether the major right is not sought to be enforced
through the major law.
 The power to make reference conferred upon the central government is to be
exercised to effectuate the object of the enactment and hence such discretion is not
 unguided. The purpose of this referential rule is to avoid totally frivolous cases on the
face of the record otherwise the power conferred to make a reference is not the power
to make a decision. Though it is observed that government is entitled to examine
whether a matter is frivolous not meriting adjudication.
 The policy going in consistence with the policy of law, the SC has observed that the
parliament should make an enabling provision to enable workman to approach labour
courts without the prior sanction of the government as this would go in a long way to
establish parity between civil courts and the labour courts.
 The policy of law emerging from the industrial Act and their sister enactmensts is to
provide alternative dispute resolution provision which is speedy, inexpensive,
informal and unencumbered by the plethora of procedural laws and at the same time
are far more extensive in the sense that they can grant any relief which they deem fit
and appropriate in a given situation in order to provide substantial justice.
In the further case of Chandrakant v. Municipal Corp of Ahmadabad 2002 2 SCC 542, it
was held that the power of industrial courts is wide enough and such forums are entitled to
grant adequate relief as they think just and appropriate. It is in the interest of the workman
that their disputes including the disputes of illegal termination are adjudicated upon by an
industrial forum.
Doctrine of res subjudice (Section 10): section 10 deal with the stay of civil suits. It
provides that no court shall proceed with the trial of any suit in which the matter in issue is
directly and substantially in issue with a previously instituted suit between the same parties
and that the court in which the previous suit is pending, is competent to grant the relief
claimed.
Doctrine of res judicata: Section 11 on the other hand related to a matter already
adjudicated upon. It bars the trial of a suit or an issue in which the matter directly and
substantially in issue has already been adjudicated upon in a previous suit.
Two pillars of doctrine of res subjudice

 The matter is directly and substantially in issue;

 The court in which the matter is previously challenged was a competent forum.
Scope of Section 10: the rule of section 10 applies to a trial of a suit and not the institution
thereof. It also does not preclude a court from passing interim order such as grant of
injunction, stay or appointment of receiver etc.
Object of section 10: the object of section 10 is to prevent courts of concurrent jurisdiction
from simultaneously entertaining and adjudicating upon two parallel litigations in respect of
the same cause of action, the same subject matter and the same relief sought. The policy of
law is to avoid two contradictory judgments or possibility of two contradictory judgments on
the same issue with same sort of relief in order to avoid the harassment of the parties and
avoid the conflict of decision from the courts. The doctrine of sub judice bars the trial of the
suit and not the institution thereof. If a judgment has been received by the court the
subsequent suit may be dismissed by this court in which it was it instituted may dismiss the
suit thereof. [National Institute of Medical Health and Neuroscience v. C parmeshawara
AIR 2005 SC 242]
Condition for application for section 10:
 There should be two suits one previously instituted and the latter subsequently
instituted.
 The matter in issue in the subsequent unit or subsequent suit must be directly and
substantially in issue in the previous suit.
 Both the suits must be between the same parties or between their representatives.
 The previously instituted suit must be pending in the same court in which the
subsequent suit is brought or in any other court in India or in any other court beyond
the limits of India but carried on by the authority of Central Government or they have
been before the Supreme Court of India.
 The court in which the previous suit is instituted must have the jurisdiction to grant
the relief claimed in the subsequent suit.
 Such parties must be litigating under the same title in both the suits.
The court is having the jurisdiction therefore institution is not barred, only the trial is barred
Section 10 does not take away the power of the court to examine the matters on merits. If the
court is satisfied that subsequent suits can be decided purely on a legal point, it is open to the
court to decide such suit. [Pukhraj D. Jain v. G Gopal Krishna AIR 2004 SC 3504].
Inherent power of the court [Section 151]
Even where the provision of section 10 of cpc do not strictly apply, a civil court has inherent
power under section 151 to stay the suit in order to achieve the ends of justice. A court has
inherent power to consolidate different suits between the same parties in which the matter in
issue is substantially the same. [P. V. Shetty v. B S Giridhar AIR 1982 SC 83.]
Effect of contravention of section 10
A decree passed in contravention of section 10 is not a nullity and therefore cannot be
disregarded in the execution proceedings. [Pukhraj D. Jain v. G Gopal Krishna AIR 2004
SC 3504] hence it the parties waive their right and expressly ask the court to proceed with the
subsequent suit, they cannot afterwards challenge the validity of the subsequent proceedings.
[Muni Lal v. Sarvajeet AIR 1984 Raj 22].
Doctrine of res judicata:
Constructive Res Judicata: the rule of direct res judicata is limited to matters directly or
actually in issue alleged by one party and denied or admitted directly or impliedly by the
another party. The rule of constructive res judicata as engrafted in explanation no. 4 or § 11
suggests that if a plea could have been taken by a party in a proceeding between him and his
opponent, he should not be permitted to take the same plea against the same party in a
subsequent proceeding with reference to the same subject matter. [State of UP v Nawab
Hussain AIR 1977 SC 1680]. This rule helps in raising the bar of res judicata and that is why
it is termed as constructive res judicata which in reality is an aspect or amplification of
general principles of res judicata. [Workman v. Board of Trustees, Cochin Port Trust,
AIR 1978 SC 1283]. It was held in this case that when any matter which might or ought to
have been made a ground of defense or attack in a former proceeding, but was not so made,
then such a matter in the eyes of law, to avoid multiplicity of litigation and to bring about
finality within it, is deemed to have been constructively in issue and therefore is taken as
decided.
Forward contruction company v. prabhat Mandal AIR 1986 SC 391: it was held that the
principle underlying explanation 4 is that where the parties have had an opportunity of
controverting a matter that should be taken to be the same thing as if the matter had been
actually controverted and decided. It is true that where a matter has been constructive in
issue, it cannot be said to have been actually heard and decided. It could only be deemed to
be heard and decided.
Devi lal modi v STO AIR 1965 SC 1150, CJI Gajendra Gadkar: the courts dealing with
the issue of infringement of the fundamental rights endeavor to bring all the matters in
question in order to comprehensively decide the situation in hand but it would not be right to
ignore the principles of res judicata all together in dealing with writ petitions filed by the
citizens contravening the violation of their fundamental rights. The consideration of public
policy cannot be ignored while dealing with the issues of fundamental rights. If such a course
is allowed to be adopted where the matters of fundamental rights violation are kept beyond
the public policy of res judicata, the doctrine of finality of judgments by this court would also
be materially affected.
Matters which are collaterally or incidentally in issue:
isher Singh v sarvan singh, AIR 1965 SC 948: a matter is collaterally and incidentally in
issue if it is necessary to decide it in order to grant relief to a plaintiff or to a defendant and
the decision on such issue either way does not affect the final judgment of the court.
Res judicata between co-defendants: as a matter of fact res judicata applies between
plaintiff and defendant as well as co-plaintiff and co-defendants. Adjudication will operate as
res judicata between co-defendants if the following conditions are satisfied:

 There must be a conflict of interest between the co-defendants;

 It must be necessary to decide that conflict in order to give relief to the plaintiff;
 The question between co-defendants must have been finally decided;
 The co-defendants were necessary or proper parties in the former suit.
If these conditions are satisfied, the adjudication will operate as res judicata between the co-
defendants. [Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332].
Res judicata between co-plaintiffs: if there is a conflict of interest between the plaintiffs
and it is necessary to resolve the same by a court in order to give the relief to a defendant and
the matter is in fact decided, it will operate as res judicata between the co-plaintiffs in the
subsequent suits. [Iftkaar Ahmed v Sayyed Maherban Ali AIR 1974 SC 749]
Proforma Defendant: a defendant to a suit against whom no relief is claimed is called a
proforma defendant. A person may be added as a proforma defendant in a suit merely
because his presence is necessary for a complete and final decision of questions involved in a
suit. Since no relief is sought against him, a finding of the court does not operate as res
judicata for the matter of subsequent suit. [Rahim Bhoy v. Charles Agnew Turner, ILR
1893 (17) Bom 341].

FOREIGN JUDGMENT [SECTION 13 AND 14 OF CPC]

Section 13 and 14 of CPC enact a rule of res judicata in case of foreign judgment which
embodies the principles of private international law that a judgment delivered by a foreign
court of competent jurisdiction can be enforced by an Indian court and will operate as res
judicata between the parties thereto subject to the conditions specified under section 13.
The provisions mentioned under section 13 are not confined in its application only to
plaintiffs but equally entitle a defendant to non- suit the plaintiff on the basis of a foreign
judgment. [Badat Trading Company v. East Indian Trading Company, AIR 1964 SC
538].
Object: the judgment of a foreign court is enforced on the principles that a court of competent
jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim. The
rules of private international law of each state may differ but through the comity of nations
certain rules are recognized as common to different civilized jurisdictions. Thus as a part of
judicial system of each state, these common rules have been adopted in order to effectuate the
judgments of foreign courts in certain matters through their own mutual recognition or
through certain international convention. [Narsimha Roa v. Venkata Lakshi (1991) 3 SCC
451].
Comity of nations e.g.: common law judgments
Principle of reciprocity: a process of mutual recognition where one country have reciprocated
in recognizing the judgment of one country and it casts the obligation on the other country to
reciprocate the judgment of such other country. Here, one individual nation may recognize
other individual nation or group of nations.
Binding nature of such foreign judgments: A foreign judgment shall be conclusive to any
matter thereby directly adjudicated upon between the same parties or between the parties
under whom they or any of them is litigating subject to the conditions mentioned under
Section 13 (a) – (f). [Satya v. Teja Singh 1975 (1) SCC 120]

Foreign judgments not passed by a court of competent nature: the principle of

competency is similar to our own judicial system. We would check if the court
passing the judgment has the competent jurisdiction relating to any aspect. It is a
fundamental principle of law that a judgment or order passed by which have no
jurisdiction is deemed to be null and void. Thus a judgment passed by a foreign court
must be pronounced by a court of competent jurisdiction [R Vishswanthan vs.
Rukn-un-Mulk Syid Abdul AIR 1963 SC 1] and such a competency may be through
both by the law of the state which establish it and in an international scenario it must
be directly adjudicated upon the matter which is pleaded as res judicata. In the case of
Gurdayal Singh v. Raja of Faridkote.
 Foreign judgments not on merits: In order to operate as res judicata, a foreign
judgment must have been given on the merits of the case. A judgment is said to be
given on merits when after taking evidences and applying his mind regarding the truth
or falsity of the plaintiff’s case the judge decides the case one way or the other. Thus,
when a suit is dismissed on default of appearance of the plaintiff or for non
production of document, even before filing of the written statement are not deemed on
merits. [international woolen mills vs standard wool UK ltd. AIR 2001 SC 2134]
 That the foreign judgment should not be against international or Indian law: a
judgment based upon an incorrect view of international law or refusal to recognize the
law of India, where such law applicable is not conclusive, but the mistake present
must be apparent on the face of the proceedings. [R Vishwanathan v. Rukn-ul-mulk
Syid Abdul].
Therefore, a foreign judgment which is found on jurisdiction or on a ground not recognized
by Indian law or goes in contravention of international law, such judgment is deemed to be in
defiance of the law. Hence it is not conclusive on the matters adjudicated therein and
therefore becomes unenforceable in our country. [Narsimha Rao v. Venkata Laxmi].
 Foreign judgment going against the principles of natural justice: it is the essence of
the judgment of a court that it must be obtained after due observance of the judicial
process i.e. the court rendering the judgment must observe the minimum
requirements of principles of natural justice (which may be that the process must be
composed of impartial persons, fair action without bias, presence of good faith,
reasonable notice to the parties from the court and affording each party adequate
opportunity for presenting his case). a judgment which is the result of bias or
elements of mala fide intention are present on part of the judge, then the entire
judgment is deemed to be nullity and the trial becomes Corum non judice.79
79
Gurdayal Singh v Raja of Faridkot; Vishwanathan v sayid abdul.
  Foreign judgment obtained by fraud: it is a well established principle of private
international law that if a foreign judgment is obtained by fraud it will not operate as
res judicata. Fraud and justice can never dwell together or fraud and deceit ought to
benefit none. Fraus et jus nunaqum cohabitant.80 Additionally, it was also held that
fraud may be defined as an act of deliberate deception with the design of securing
some unfair or underserved benefits by taking undue advantage of another. In fraud
one gains at the cost of other. Fraud is thus an extrinsic collateral act which vitiates
all judicial acts whether in rem or in personum. The principle of finality of litigation
cannot be stretched to the extent of an absurdity that it can be utilized as an engine of
oppression by dishonest or fraudulent litigants.
 The foreign judgment should be in contravention of Indian Law: even if the
principles of private international law allow such foreign judgments, but those
principles goes in contravention of the Indian law, such judgments cannot be
followed in India.
Section 14
Presumption as to foreign judgments: section 14 declares that the court shall presume upon
the production of any document purporting to be a certified copy of the foreign judgment and
that such judgment was pronounced by a competent court unless the contrary is proven on
record.
But SC has held that mere production of the photostate copy of a decree of a foreign court is
not sufficient. It is required to be certified by a representative of a central government or the
judicial officer of the country.81

80
A B Papayya Shastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
81
Narsimha Rao v Venkata Lakshi.
 PLACE OF SUING
Suits may be of different types based upon contracts, torts, movable property, immovable
property etc. The jurisdiction of the court to entertain, deal with and decide a suit may be
restricted by a variety of circumstances, including the decision of place of suing. Section 15
to 20 regulates the forum for the institution of suits.
Scheme: section 15 requires the plaintiff to file a suit in the court of the lowest grade
competent to try it. Section 16 to 18 deals with suits relating to immovable property. Section
19 applies to suits for compensation for wrong to person or to immovable property. Section20
is a residuary section and deals with power of civil court in relation to suit which has not been
covered from section 15 to section 19.
Pecuniary jurisdiction: every suit shall be instituted in the court of the lowest grade
competent to try it.
Nature and scope: section 15 of the Code refers to the pecuniary jurisdiction of the court.
The rule laid down in the section is a rule of procedure and does not affect the jurisdiction of
the court. Hence, a decree passed by a court of a higher grade cannot be said to be without
jurisdiction.82 It is merely an irregularity covered by Section 99 of the Code and the decree
passed by the Court is not a nullity.83
Object:

 To see that the courts of higher grade shall not be overburdened with the suits
 To afford convenience to the parties and witnesses who may be examined in such suit.
Mode of valuation:
Prima facie it is the plaintiff’s valuation in the plaint that determines the jurisdiction of the
court and not the amount for which ultimately the decree may be passed. 84 The valuation of
the suit which is low at the time of institution may not act as an impediment on the powers of
the court to grant greater damages.
Powers and duties of the court in such valuations:

 If the plaintiff deliberately undervalues or overvalues the claim for the purpose of
choosing the forum, the plaint cannot be said to be correctly valued and it is the duty
of the court in such circumstances to return the plaint to be filed in proper court.
 But if the court is unable to come to a finding regarding the correct valuation of the
subject matter, the court has to accept the valuation computed on behalf of the
plaintiff.85
Territorial jurisdiction:

 Types of suit: for the purpose of territorial jurisdiction of the courts, suits may be
divided into four categories:
o Suits in respect of Immoveable property (Sec 16-18): clauses (a) to (e) of
section 16 deals with suits for immovable property under 5 categories:
82
Gopal v Shamrao, AIR 1941 Nag 21.
83
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.
84
Kiran Singh v. Champan Paswan,
85
Tara Devi v. Shir Thakur Radha Krishna Maharaj, AIR 1987 SC 2085.
  Suits for recovery of immovable property;
 Suits for partition of immovable property;
 Suits for foreclosure (in relation to mortgage);
 Sale or redemption in the context of mortgage or any other charge;
 Suits for determination of any other right or interest in immovable
property;
 Suits for torts committed against immovable property.
These suits must be filed in the courts within the local limits of whose jurisdiction the
property is situated. section 17 is called contingency provision which says that where a suit is
to obtain a relief in relation to a damage in torts to the immovable property situated within the
jurisdiction of different courts, such suit may be filed in the court within the local limits of
whose jurisdiction any portion of the property is situated provided that it does not breach the
pecuniary jurisdiction of such court.
o Movable property (19)
 A suit for wrong to movable property may be brought at the option of
the plaintiff either at the place where the wrong is committed or where
the defendant resides, carries on business or personally works for
gain.
 Where such wrong consist of a series of acts, a suit can be filed at any
place where any of the acts has been committed similarly where a
wrongful act is committed at one place and the consequence ensue at
another place, a suit can be instituted at the option of the plaintiff
where the cause of action has arisen or the consequences has ensue.
o Suits for compensation for wrong committed (torts) (19)
 A suit for compensation for wrong or a tort to a person may be
instituted at the option of the plaintiff either where such wrong is
committed or where the defendant resides or where he carries on
business.
o Other types of suits (residuary suits) (20): It provides for all the suits which
have not been covered through sec 16 to 19. All such suits may be filed at the
option of the plaintiff in the following manner:
 Where the cause of action wholly or partly arises;
 Where the defendant resides or carries on business or personally
works for gain;
 Where there are two or more defendants, any of them resides or
carries on business may be added to the suit and the plaintiff may at
his option
 Either through the leave of the court; or
 Through the defendants who do not reside at that place, may
acquiesce in such institution.
Forum shopping: it is a well settled principle of law that consent can neither confer nor can
take away the jurisdiction of a competent court and the same principle is applicable while
oustering the jurisdiction of the court and by no means of consent, waiver, or estoppel can
stop the jurisdiction of the competent court. But where two or more courts have jurisdiction
to entertain a suit, an agreement by the parties to submit to the jurisdiction of one of such
courts to the exclusion of other courts is valid, binding and enforceable.86

ESSENTIALS OF THE SUIT

There are four essentials of a suit:

 Opposing parties to a suit;

 Subject matter in dispute;
 Cause of action; and
 Relief sought.
Parties to the suit (Order 1): order I deals with the parities to a suit. It also contains
provisions for addition, deletion and substitution of parities through joinder, misjoinder and
non-joinder of parties.
Joinder of parties: the question of joinder of parties may arise either as regards to the plaintiff
or as regards to the defendants. An act may be done by a single individual and may affect
another individual. The question of joinder of parties arises only when an act is done by two
or more persons or it affects two or more persons.
Joinder of plaintiffs (rule 1): it states that all persons may be joined in one suit as plaintiffs in
the fulfillment of the following two conditions:

 The right to relief alleged to exist in each plaintiff arises out of the same act or
transaction; and
 The case is of such a character that, if such persons brought separate suits, any
common questions of law or fact would arise.87
The word ‘and’ between clauses (a) and (b) makes it clear that both the above conditions
should be fulfilled which means that they are cumulative and not alternative.
Joinder of defendants (rule 3): it states that all persons may be joined in one suit as
defendants if the following two conditions are satisfied:

 The right to relief alleged to exist against them arises out of the same act or
transaction, and
 The case is of such a character that, if separate suits were brought against such
persons, any common question of law or fact would arise.
The underlining object of rule 3 is to avoid multiplicity of suits and needless expenses.88
Necessary party: it is one whose presence is indispensible to the constitution of the suit,
against whom the relief is sought and without whom no effective order can be passed.
A proper party is one in whose absence an effective order can be passed but whose presence
is necessary for complete and final decision on the question involved in the proceedings. 89
86
Union of India v. Oswal Woolen Mills Ltd., AIR 1984 SC 1264; Morgan Stanly Mutual Fund v. Kartik Das,
(1994) 4 SCC 225; ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711.
87
Krishna Laxman v. Narshinghrao Vithalrao, AIR 1973 Bom 358.
88
Ishwar Bhai v Harihar Behera, (1993) 3 SCC 457.
89
Kasturi vs. Iyyam Perumal, AIR 2005 SC 2183.
This case also lays down two tests for determining the question whether a particular party is a
necessary party is necessary party to a proceeding: 1. There must be a right to some relief in
respect of the question involved in the proceedings; 2. It should not be possible to pass an
effective decree in absence of such a party.
If there is a dispute or a cause of action between certain persons, all of such persons becomes
necessary parties.
Non Joinder and misjoinder of parties [Rule 9]: where a person who is a necessary party or a
proper party to a suit has not been joined as a party to the suit, it will become the case of non
joinder. On the other hand, if two or more persons are joined as plaintiffs and defendants in
one suit, in contravention of rule 1 and rule 3 of order 1, and they are neither necessary or
proper parties, then it will become the case of misjoinder of parties.
The general rule is that a suit cannot be dismissed only on the ground of non joinder or
misjoinder of parties nor a decree passed by a competent court on merits will be set aside on
the ground of misdescription of the defendant. However, this rule does not apply in case of
non joinder of a necessary party.90
Objections as to non joinder or misjoinder of the parties: rule 13, order 1: all the objections
on the ground of non joinder or misjoinder of parties must be taken at the earliest possible
opportunities. Otherwise they will be deemed to have been waived, but if the objection as to
non joinder has been taken by the defendant at the earliest stage and the plaintiff declines to
add the necessary parties, he cannot be subsequently allowed in appeal to rectify the error in
appeal by applying for amendments.91
Adding or substituting or striking out parties Rule 10 Order 1: Rule 10(1): if after the
filing of the suit, the plaintiff discovers that he cannot get the relief, he seeks without joining
some other person as a plaintiff and also where it is found that some other person and not the
original plaintiff is entitled to the relief an application for addition or substitution of the
plaintiffs can be made. To bring a case under this rule, three conditions must be satisfied:

 The suit has been filed in the name of a wrong person as a plaintiff;
 Such mistake must be bonafide; and
 The substitution or addition of the plaintiff is necessary for determination of the real
matter in dispute.92
Object of this rule: to save honest litigants or plaintiffs believing in bona fide maintainability
of their claims being non-suited on a mere technical ground. The policy is to decide the real
question in controversy between the parties bypassing the mere technical objections for
defeating a just and honest claim by discouraging the contest purely on technicalities.93
Striking out or adding the parties, Rule 10 (2): this rule empowers the court to add any
person as party to the suit on any of the two grounds alternatively:

 Such person ought to have been joined as a plaintiff or as a defendant or is not so

joined; or

90
Diwakar Srivastav v. State of MP, AIR 1984 SC 468.
91
Naba Kumar v. Radha Kumar, AIR 1931 PC 229.
92
Raziya Begum vs Sahebjadi Amwar Begum.
93
Anil Kumar v. Shiv Nath, (1995) 3 SCC 147.
  Without his presence the question involved in the suit cannot be completely heard or
decided.94
This provision confers a wider discretion on the court to meet with every case of defect of
parties and is not affected by the inaction of the plaintiff to bring the necessary parties on the
record. Adding of parties is a judicial discretion and has to be exercised judiciously.95
For exercising the powers under Rule 10(2), the court has to base its decision on sound
judicial principles keeping in mind all the facts and circumstances of the case. The two
considerations which the court should follow while exercising such powers are:

 The plaintiff is dominus litis in the case, which means he is the best judge of his real
interest in the case and normally the court should not compel him to fight against a
person whom he does not want to fight;
 If the court is satisfied that the presence of a particular person is necessary to
effectively and completely adjudicate all the disputes between the parties irrespective
of the wishes of the plaintiff the court may exercise the power and join a person as
party to the suit.96
Raziya Begum vs Sahebjadi Amwar Begum: SC has laid down few principles regarding
the powers of the court to add on the parties to the suit under rule 10(2):

 The question of addition of parties under rule 10 of order 1 is generally not of initial
jurisdiction of the court but is a question of judicial discretion (this is not the way of
assuming jurisdiction) which has to be exercised in view of all the facts and
circumstances of the particular case but may raise controversies in determining the
powers of the court;
 In a suit relating to a property, a person may be added as a party if he has a direct
interest in the subject matter as distinguished from a commercial interest;
 Where the subject matter of litigation is declaration as regard to the status or legal
character, the rule of direct interest may be relaxed in a suitable case where the court
is of the opinion that by adding the party it would be in a better position effectually
and completely to adjudicate upon the controversy.
In 2nd point, it was a suit for ownership and granting the possession of the immovable
property, in the 3rd point, it is only a suit for declaration and therefore commercial interest can
be included. Suits under 3rd point is not for the rights over the property, its only for getting a
declaration.

 The rule of exercising the discretionary power should be exercised cautiously in the
cases of section 42 and 43 of the specific relief act.
REPRESENTATIVE SUIT [ORDER 1, RULE 8]
Rule 8 is an exception to the general principle of civil litigation where it provides that when
there are number of parties similarly interested in the suit, one or more of them, can with the

94
Raziya Begum vs Sahebjadi Amwar Begum; Anil Kumar v. Shiv Nath, (1995) 3 SCC 147.
95
Ramesh Hirachand vs. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524.
96
Ramesh Hirachand vs. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524; Raziya Begum vs
Sahebjadi Amwar Begum.
permission of the court, or upon the directions from the court, may sue or be sued on behalf
of themselves and others.97
A representative suit is filed by or against one or more persons on behalf of themselves and
others having the same interest in the suit. Either the parties are affected by the same cause of
action or are similarly affected by the acts of other parties.
Class Action Suit: used in the US jurisdiction.
Difference between class action suit and representative suit??
Object of representative suit: to facilitate the decisions involving large number of persons
who are similarly interested without recoursing to the ordinary procedure of CPC. This helps
in saving time and expenses and ensures a single comprehensive trial of all the questions
involving such numerous persons and avoiding the harassment of parties through multiplicity
of suits.98
The representative suit is an enabling provision, which allows one to use this provision, but it
is not mandatory to get a suit represented. Order 1 Rule 8 is an enabling provision, it neither
compels an individual to represent a body of persons having the same interest not it debars a
member of the community from maintaining a suit in his own right in respect of a wrong
done to him.99
Conditions to be fulfilled to make a suit representative

 The parties must be numerous, it is not required that the number of persons should be
clearly certain nor it amounts to the fact that numerous will represent innumerable.
Therefore the only question is that the criterion of numerous shall be decided by the
court based upon the facts of each case while taking into account the nature of
controversy and subject matter in dispute;100
 They must have same interest in the suit: the term same interest means that an interest
must be common to all of them or they must have a common grievance against which
they want to seek redressal. Therefore, a community of the interest is essential and
acts as condition precedent for bringing a representative suit.101
 The permission must have been granted or directions must have been given by the
court; and
 Notice must have been issued to the parties whom it is proposed to represent in the
suit.
Frame of the Suit (Order 2):
Every suit must include the whole of plaintiff’s claim in respect of cause of action so that as
far as practicable that all matters in dispute between the parties shall be disposed off finally.
It is the duty of the court to see whether it was practicable on part of the plaintiff to include
the entire claim which he had either omitted or intentionally relinquished. [Order 2, Rule 1]

97
Diwakar Srivastav vs. State of MP.
98
Kodia Gounder vs. Velandi Gaunder, AIR 1955 Mad 281.
99
T. N. housing Board v. T. N. Ganapathy, AIR 1990 SC 642.
100
Hasan Ali v. Mansur Ali, AIR 1948 PC 66.
101
Kodia Gounder vs. Velandi Gaunder, AIR 1955 Mad 281; T. N. housing Board v. T. N. Ganapathy, AIR
1990 SC 642.
Under Order 2, Rule 2, if a plaintiff fails to bring the cause of action or he has omitted or
intentionally relinquished a portion of the claim then he shall not be allowed afterwards for
invoking the portion so omitted or relinquished. The object of this rule is to protect the
defendant from being vexed twice for the same cause, it is a counter willing measure against
two types of malpractices being practiced in the court which are:

 Splitting up of claims;
 Splitting up of remedies102
It was held in these cases that the rule 2 of order 2 provides that a suit must include the whole
of the claim which the plaintiff is entitled to make in respect of the cause of action on which
he sues and if he omits to sue for any relief to which his cause of action would have entitled
him, he cannot claim it through a subsequent suit as the object of this statutory rule is to
prevent multiplicity of suits.
in the case of Deva Kumar vs Ishwar Chand, 1995 6 SCC 733, it was held that Order 2 Rule 2
is based a cardinal principle that a defendant should not be vexed twice for the same cause.
Order 2 rule 2 and res judicata
The provision of order 2 rule 2 are penal in nature and therefore should be construed strictly.
This provision is highly technical and deprives a party to a legitimate right which was
otherwise available to him. Hence the plea of res judicata in context of order 2 rule should not
be highly upheld and such plea should be raised at the earliest opportunity.103
Conditions of application of order 2 rule 2104

 The second suit which is brought must be in respect of same cause of action as that on
which the previous suit was based;
 In respect of that cause of action, the plaintiff was entitled to more than one relief;
 Being thus entitled to more than one relief the plaintiff without the leave of the court
omitted to sue for the relief for which the second suit has been filed.
Tests laid down in Mohammed Khalil vs. Mahboob Ali, AIR 1949 PC 78.

 The correct test of the cases falling under Order 2 Rule 2 is whether the claim in the
new suit is in fact founded upon a cause of action distinct from that which was the
foundation of the former suit.
 The cause of action means every fact which will be necessary for the plaintiff to prove
if traversed in order to support his right to judgment.
 If the evidence to support the two claims is different then the causes of action are also
deemed to be different.
 The casues of action in the two suit, may be considered to be the same if in substance
they are identical and merely the language of presentation is different.
 The cause of action has no relation whatsoever to the defence that may be set up by
the defendant nor does it depend upon the character of the relief prayed for by the
plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a
conclusion in his favor.

102
Naba Kumar vs. Radha Shyam, AIR 1931 PC 239; Mohammed Khalil vs. Mahboob Ali, AIR 1949 PC 78.
103
Gurubux Singh v Bura Lal, AIR 1964 SC 1810.
104
Ibid.
Order 2 Rules 4 and 5: Joinder of Claims
Rule 4 lays down that in the suit for recovery of immovable of immovable property, a
plaintiff is not entitled to join any claim without the leave of the court except:

 Claims for mesne profits;

 Arrears of rent in respect of the property claimed or any part thereof.
 Claims for damages for breach of contract under which the property or ant part
thereof is held.
 Claims in which the relief sought is based on the same cause of action in the
ongoing suit.
Rule 5, which deals with the suit by or against three classes of persons, i.e. executors,
administrators and legal heirs. It provides that no claim by or against such persons in their
representative capacity shall be joined with the claims by or against them personally in the
same suit except:

 Where the personal arise with reference to the estate he represents;

 Where he was entitled to or liable for those claims jointly with the deceased whom he
represent.
The main object of this rule is to prevent a representative from inter mingling the assets of his
testator with his own estates.
Order 4: institution of the suit

 Order 4 rule 1 read with section 26 talks about presentation of plaint. It lays down that
every suit must be instituted by the presentation of the plaint in duplicate or in any
other manner as prescribed by the court by the plaintiff himself or by his advocate or
through his recognized agent.
 A plaint must be presented to the court or any such officer as is appointed in that
behalf. The presentation of the plaint takes place in the general working days during
the working hours.
 Every plaint must contain necessary particulars like the name of the court, the title,
the cause of action, and the relief sought etc.
 Particulars of every such suit will have to be entered in the registers of the civil suits
as maintained by each court.
 If a suit is instituted by an indigent (whose property is valued below or equal to rs.
1000) person or on behalf of minor or on behalf of dead person, then a statement
giving the effect to the same must be included in the plaint.
Civil Pleading (Order 6)
Order 6, Rule 1: pleadings include both plaint and written statement, in other words,
pleadings are the statements in writing drawn up and filed by each party to a case stating
what his contentions will be at the trial and giving all such details as his opponent needs to
know in order to prepare his case in answer.
Objects of the Pleadings: the whole object is to bring parties to definite issues and to
diminish and delay the expenses and to prevent surprises at the stage of hearing. It helps in
ascertaining the real disputes between the parties, thereby narrowing down the area of
conflict and precluding one party from taking the other by surprise so as to prevent
miscarriage of justice.105
In Ganesh Trading Company vs Moji Ram,106 it was held that pleadings in civil cases are
meant to give each side intimation of the case of the other so that it may enable the court to
determine the real issue at hand between the parties.
In Virendra Kashinath vs. Vinayak Joshi,107 it was held that the object of pleadings is two
folds:

 To afford the other side intimation regarding the particular facts of his case so that
they may be met by the other side;
 To enable the court in deciding the actual dispute or controversy emerging out of the
factual proposition.
Basic Rule for Pleadings (Order 6, Rule 2):

 Sub Rule 1, Rule 2: every pleading shall contain and contain only a statement in a
concise form of the material facts on which the party pleading relies for his claim or
defence, as the case may be, but not the evidence by which they are to be proved.
Additionally, no law is even pleaded.
 General principles governing pleadings:
o Pleadings should state facts and not law
 Kedar Lal vs Hari Lal and Ram Prasad vs State of M.P.: The
construction of pleadings can be summarized as “plead facts and not
law, which is based on a principle that a judge if bound to apply the
correct law even if incorrect law if pleaded by a party, however, a
mixed question of fact and law should be specifically raised or
pleaded. For e.g. the existence of a custom or usage or establishing the
intention of a party is termed as question of facts.”
o The facts above stated must be material facts (those bundle of facts which the
parties has to prove to establish one’s case and which gives right to the relief
or acts as valid shield and defence). Additionally, other facts which help in
establishing such important facts are even included;
 Udhaw Singh vs. Madhav Rao Scindia:
 Virendra lal vs. stapal singh: all the primary facts which are to be
proved at the trial by a party to establish the existence of a cause of
action or his defence is termed as material facts. It is absolutely
essential that all the basic and primary are pleaded and established by
the party beyond reasonable doubt, however there exists a differnce
between material facts and particulars where non supply of material
facts may entail the dismissal of the suit but non supply of essential
particulars may not lead to the same consequence as material facts are
essential to be proved and material particulars may be refined or
amended even during the stage of pleadings.
o Pleadings should not state the evidences (annexure can be included just to
substantiate the claim)

105
Dhrob vs. Holdsworth.
106
AIR 1978 SC 484.
107
AIR 1999 SC 162.
  R M Shashadri vs. G BaSant Pai: the pleadings should contain a
statement of material facts which the party relies but not the evidences
through which those facts are to be proved. There are two types of
facts:
 Facta probanda: the facts required t o be proved (material facts)
 Facta probantia: the facts by means of which material facts are
proved (particulars or evidences).
o The facts stated in the pleadings should be in concise form
 Charan lal Sahu vs. Gyani Zail Singh: all the material facts must be
stated in summary form according to the nature of the case. Immaterial
averments and unnecessary details must be omitted and material
allegations and necessary particulars must be included. if due care is
taken through systematic process pleadings can be saved from
tautology.
 Other rules of pleadings:
o Where misrepresentation, fraud or breach of trust or undue influence are
pleaded in the pleadings, then particulars with dates and time should be stated
specifically.
 Dishnu dev v. sarogani rai: in the cases of fraud, undue influence or
coercion, the parties pleading it must set forth full particulars and the
case can only be decided on the basis of the particulars as laid down in
the court.
o The object of the pleading is to narrow the controversies so as to decide the
issues with precision so as to give proper notice and including all the essential
particulars within the notice itself to be submitted to either parties of the case.
Therefore, the particulars stated in the pleadings should be sufficient and
specific and the court should specifically insist upon the particulars before
proceeding with the trial of the suit.
o The performance of condition precedent need not be pleaded as it is already
implied in the pleadings. Non performance of the condition precedent however
must be specifically pleaded and included by the parties.
o Departure from the pleadings is to permissible and except by way of
amendment, no party can raise any ground of claim or any allegation of fact
inconsistent with previous pleadings.
o A bare denial of contract by the opposite party will be construed only as a
denial of factum of contract and not the legality or enforceability of the
contract.
 Kalyanpur Lime Works ltd. v. State of Bihar AIR 1954 SC 165:
o Documents need not be set out at length in the pleadings unless they are
deemed material.
o Whenever giving of notice to any person is necessary or a condition precedent,
pleadings should only state regarding giving of such notice without setting out
the form or precise terms or such notice or the circumstances from which it is
to be inferred unless they are material.
o Implied contracts or relations between persons may be alleged as a fact and
the series of letters conversations and the circumstances from which they are
to be inferred should be pleaded generally.
o Facts which the law presumes in favor of a party or as to which the burden of
proof lies upon the other side need not be pleaded.
 o Every pleading has to be signed by the party or by one of the parties or his
pleaders.
o Pleadings should supply the detailed address of the parties contending as well
as the address of the opposing parties.
o Every pleadings should be verified on affidavit by the party or one of the
parties or by a person acquainted with the facts of such facts.
o Every pleading must be divided into paragraphs numbered consecutively and
each new averment or allegation or defence should be stated in separate
paragraphs and any date or amount has to be stated in both figures as well as
words.
Alternative pleadings: it conveys a choice on behalf of a party to a litigation and may include
in his pleadings two or more facts or claims or reliefs which may act as an alternative to the
previous relief.
Inconsistent pleadings: it means mutually repugnant, contradictory and destructive or
reconcilable pleadings due to which both the previous or present pleading may not stand in
the court of law because acceptance of one pleading necessarily implies abrogation or
abandonment of the other set of pleadings.
The main object of allowing alternate pleading in one litigation is to obviate the necessity of
another litigation and to decide the controversy in one litigation comprehensively and the
code of civil procedure supports the alternative set of pleadings.108
How to construct pleadings: strict and specific; it is uniformly stated or held by the Courts
that pleadings in India should be construed strictly in relation to the actual relief sought under
the statute but should not be construed strictly in relation to the form of pleadings thereof and
for the same it may be interpreted liberally. In Madan Gopal vs. mani Ram, AIR 1976 SC
461, where it was held that the pleadings in India are loosely drafted in the courts and the
courts should not scrutinize the pleadings with such meticulous care so as to debar the
genuine claims on trivial or technical claims. In Ram Swaroop vs Bishnu Narayan Inter
college, it was held that pleadings should receive a liberal contruction so as to facilitate the
cause of justice and pedantic (narrow and technical) approach should not be adopted to defeat
the justice on hair splitting technicalities. It is not desirable to place higher emphasis on form
but substance should be looked into specifically.
Striking out pleadings (Rule 16, Order 6): the court is empowered to strike out any pleading
if it is unnecessary, scandalous, frivolous or vexatious or tends to prejudice or embarrass or
delay the fair trial of the suit or is otherwise deemed as an abuse of the process of the court.
In vijay kumar vs tota singh, 2006 (13) SCC 353, the conditions where court could use rule
16 were laid down:

 Where such pleading is unnecessary, scandalous, frivolous;

 Where such pleading tends to prejudice or embarrass or delay the failr trial of the suit
 Where such pleading is otherwise deemed as an abuse of the court proceedings.
The power to strike down pleadings is extraordinary in nature and must be exercised by the
court with extreme care, caution and circumspection.
Rule 14-15, Order 6: signature and verification of pleadings

108
Arundhati Mishra vs. Ram Charitra Panday, 1994 (2) SCC 29.
As a general rule, every pleading must be signed by the party or by one of the parties or by
his pleader. But if the party is unable to sign the pleadings, it can be signed by any person so
authorized by him. The verification must be signed on an affidavit by the person verifying
and must contain the date on which and the place at which it was signed. The person
verifying the pleading should also furnish an affidavit in support of his pleadings. It is a well
settled principle that a party can be permitted to adduce evidence on the basis of the case
pleaded by him in his pleading and he cannot setup a case inconsistent with his own
pleadings. The purpose for such rule is two folds:

 To appraise the opposite party distinctly and specifically of the case he is called upon
to answer so that he may property prepare his defence and may not be taken by
surprise;
 To maintain an accurate record of the cause of action as a protection against second or
subsequent proceeding founded upon the same question of law.109
An objection to pleading should be taken at the earliest. If at an appropriate stage such an
objection is not raised, it is deemed to have been waived as it is based on the principle that in
such cases it cannot be held that a prejudice has been caused to the party by raising a plead at
a belated stage.
Amendment of pleadings [rule 17-18]: as a general rule material facts and necessary
particulars must be stated in the pleadings and the decision of the court cannot be based on
the grounds outside the pleadings but if the party comes up with a fresh information in order
to deliberate the real controversy at hand, it necessitates the reshaping of claims and defence.
The object of the rule is that the court should try the merits of the case that comes before
them and should consequently allow all amendments that may be necessary for determining
the real question in controversy between the parties provided it does not cause injustice,
prejudice to the other side. The court while doing complete justice may allow such
amendment applications in the larger interest of the parties for meeting the relevant criterions
of litigation.
Rule 17 confers a wider discretion on the court to allow either party to amend his pleading at
any stage of the proceeding on such terms as it may deem fit. Such discretion however should
be exercised judicially and inconsonance with well established principles of law. The
provision of rule 17 is not exhaustive and wherever rule 17 does not apply, resort can be
taken to section 151.
Leave to amend when can be granted:
The amendment of pleadings application can be granted so as to enable the real question in
issue between the parties to be raised in the pleadings therefore, an amendment application
can be raised in following circumstances:

 Whether the amendment is necessary for the determination of real question in

controversy;
 Can be amendment by allowed without causing injustice to the other side.

109
Om prakash vs. ram kumar, AIR 1991 SC 409.
The first condition must be satisfied before approving the amendment application as the
cardinal test for granting amendment remains ‘the real controversy in issue.’ No amendment
should be allowed when it does not satisfy this cardinal test.110
Leave to amend when can be refused:
The power to grant amendment is a discretionary power as well as a legal power and no legal
power can be exercised improperly, unreasonably or arbitrarily. In Ganga Bai vs. Vijay
Kumar AIR 1974 SC 1126, it was held that the power to allow an amendment is wide and
discretionary and such discretionary power should be governed by judicial considerations as
wider the discretion, greater ought to be the care and circumspection on part of the court.
Leave to amend can be refused in the following circumstances:

 Leave to amend will be refused where the amendment is not necessary for the
purpose of determining the real question in controversy between the parties;
 Leave to amend will be refused if it introduces a totality different, new and
inconsistent case or changes the fundamental character of the suit or defence; 111 the
test as to whether the amendment should be allowed is whether or not the party can
amend his pleading without placing the other side in a position from which he cannot
be recouped in relation to costs or otherwise.
 Where the effect of the proposed amendment is to take away from the other sidea
legal right already accrued in his favor;112 Charan Das vs. Amir khan AIR 1921 PC
50, the full power to make an amendment on behalf of the court can not be disputed,
those power should be exercised in a way that it does not take away from the
defendant a legal right which has accrued to him by lapse of time but there may be
cases or circumstances where such considerations are outweighed by the special
circumstances of the case itself.
 Where the application for amendment is not made in good faith because as a general
rule, leave to amend ought not to be granted if the applicant has acted malafide.113
Principles regarding amendment of pleadings:

 All the amendments should be allowed which are necessary for determination of real
controversy in the suit;
 The proposed amendment should not alter and be a substitute for the cause of action
on the basis of which the original litigation was filed or raised;
 Inconsistent and contradictory allegations in negation to the admitted position of facts
or mutually destructive allegations should not be allowed to be incorporated by means
of amendment;
 Proposed amendment should not cause injustice or prejudice to the other side which
cannot be compensated by way of costs;
 Amendment of a claim or relief barred by time should not be allowed;
 No amendment should be allowed which amounts to or results in defeating a legal
right to the opposite party on any account (lapse of time, etc.)
 No party should suffer on account of technicalities of law and the amendment should
be allowed to minimize the litigation between parties to the extent possible.
110
Kishan das vs. rachappa vithoba, 1909 ILR Bom.
111
Modi Sewing and Weaving Mills co. ltd. vs. Ladha Ram, (1976) 4 SCC 320; A.K. Gupta and Sons ltd. Vs
Damodar valley corporation, AIR 1967 SC 96.
112
Pirgonda Patil vs. Kalgonda Patil; A.K. Gupta case.
113
Ram Manohar vs. National Building Material Supply, 1969 1 SCC 869; Pirgonda Patil vs. Kalgonda Patil.
  The delay in filing petition for amendment of pleadings should be properly
compensated for by way of costs.
 Error or mistake which is not fraudulent should not be made a ground for rejecting
the application for amendment of pleadings.
 The principles mentioned herein are illustrative and not exhaustive.
Doctrine of relation back: an amendment is aiming at the main course of pleadings.
Amendment would deem to take an effect from the date when the original suit is filed and not
form the day on which such amendment is accepted. This doctrine refers to the fact that
normally an amendment relates back to the original course of pleadings but the doctrine is not
absolute, unqualified or of universal application. In appropriate cases, the court may order the
amendment to take an effect from the date of application or from the date of approval and not
from the date the plaint or written statement was actually presented.114
Failure to amend the pleadings (Rule 18)
If a party who has obtained an order to leave to amend does not amend accordingly within the
time specified for that purpose in the order or if no time is specified then within 14 days from
the date of such order, he shall be permitted to amend, after the expiry of which, he may not
be subsequently allowed to amend. The rule is discretionary in nature and the court may on
its own extend the time line or may allow a subsequent amendment depending upon the facts
and circumstances of the case.

ORDER 7 [PLAINT AND WRITTEN STATEMENT]

Rule 1 to 8: particulars of plaint

 The name of the court in which the suit is to be brought;

 The name, description and place of residence of the plaintiff;
 Name, description and place of residence of the defendant;
 Where the plaintiff or defendant is minor or a person of unsound mind, then a
statement of that effect;
 Facts constituting the cause of action and the time when it arose;
 The facts showing that the court have requisite jurisdiction;
 Statement of the value of subject matter of the suit for calculation of requisite court
fees and for pecuniary jurisdiction of the court;
 The relief claimed by the plaintiff, simply or in alternative;
 Where the plaintiff files the suit in a representative capacity, the facts showing that
the plaintiff have actual existing interest in the subject matter and that he has taken
steps to realize such interests;
 Where the plaintiff has allowed a set off or relinquished a portion of his claim, the
amount so allowed or relinquished;
 Where the suit is for recovery of money, the precise amount claimed by the plaintiff;
 Where the suit if for accounts or mesne profits or for movables in possession of the
defendant, the approximate amount or value thereof;
 Where the subject matter of the suit is immovable property, a description of the
property making it sufficiently identifiable;
114
Brij Kishore vs. Mushtari Khatoon; Vishambhr vs. Lakshmi Narayan, AIR 2001 SC 2607 (exception to the
above doctrine).
  The interest and liability of the defendant in the subject matter of the suit;
 Where the suit is time barred, the ground upon which exemption from law of
limitation is claimed;
 Bhagwati Prasad vs Chandramaul, AIR 1966 SC 735, it was held that the general rule
is that the relief should be founded upon the pleadings made by the parties in either
written or oral form. To allow one party to rely upon a matter in respect of which the
other party did not lead evidence and hence had no opportunity to lead evidence
would introduce considerations of prejudice and in doing justice to one party, the
court cannot do injustice to another. But the suit cannot be dismissed merely on the
ground that the plaintiff has claimed a bigger relief than he is entitled to as the court
may on its own grant a relief for which the plaintiff is sufficiently entitled.
Rule 9: admission of plaint
It provides for filing of copies of the plaint by the plaintiff and also requires him to pay
requisite court fees as well as the fees for the service of summons within seven days of the
date of such admission.
Return of plaint, rule 10 and 10 B
Where at any stage of the suit the court finds that it has no jurisdiction either territorial or
pecuniary or in relation to the subject matter of the suit, it will return the plaint to be
presented to the proper court in which the suit ought to have been filed.
The judge returning the plaint should make endorsements on it regarding:

 The date of presentation;

 The date of return;
 The name of the party presenting it;
 Reasons for return of plaint.
Rejection of plaint Rule 11
The plaint will be rejected in following cases:

 Where the plaint does not disclose the cause of action;

 Where the relief claimed is undervalued;
 Where the plaint is insufficiently stamped;
 Where the suit is barred by law;
 Where the plaint is not filed in duplicate;
 Where there is non compliance with statutory provisions of this code;
 Any other ground
Procedure for rejection of plaint
Where a plaint is rejected by the court, the judge will pass an order to that effect and will also
record the reasons for such rejections.
Effect of rejection: Rule 13
If the plaint is rejected in any of the above grounds, the plaintiff is thereby preclude from
presenting a fresh plaint on the same cause of action. Such rejection order is appealable
Documents submitted along with the plaint Rule 14-17
a document upon which the plaintiff seeks to rely or has relied is specifically mentioned that
it ought to have been produced in the court along with the plaint, however this provision does
not apply to following documents:

 the documents which are reserved for the purpose of cross examination of the
defendant’s witnesses
 .the documents which are handed over to the witnesses merely for the purpose for
refreshing their memory.
Summons [section 27-29 read with order 5]
A summon is a document issued from the office of court of justice calling upon the person to
whom it is directed to attend before a judge or officer of the court for a certain purpose
whereby an intimation is sent requiring him to appear before the court.
Object: where a suit is filed by the plaintiff against the defendant seeking a relief against him,
the defendant must be given an opportunity as to what he wants to contend in relation to the
case so instituted. This goes in consonance with the principles of natural justice where it
suggests that no one should be condemned unhurt. [audi altrem partem]. It is however the
discretion of the court to make a person appear in a person through any other mode. If the
summon is not served to the defendant, it will not bind him for the purpose of decree.
Essential particulars of the summon (Rule 1 and 2)
A summon issued from the court shall be signed by the judge or such officer as appointed by
him and shall be sealed by the seal of the court and in case of summon being served to the
defendant, it shall be accompanied by the copy of the plaint.
Appearance in person, rule 3: through the successful delivery of summons, the court may
direct:

 A person to appear before it individually or in person;

 The court may direct a pleader on behalf of the person to appear before the court
who have the knowledge of the case and is able to answer all material questions;
 A pleader along with some person who is able to answer all such material
question.
Exemption from appearance in person Section 132-133, rule 4:

 No person shall be ordered to appear in person unless

o He resides within the local limits of the ordinary original jurisdiction of the
court; or
o Outside such limits but not less than fifty miles in case of non availability of
public conveyance and 200 miles in case of availability of public
conveyance.
 A women not appearing in public;
 Any order ground of exception to which a person is entitled under this code.
Contents of summon [rule 5-8]
Every summon must contain a direction as to the date fixed either for settlement of issues or
for final disposal of the suit, in case of final disposal, the defendant should be directed to
produce his witnesses. The court should ensure availability of sufficient time to the defendant
for answering the claims of the plaintiff. The summon should also contain an order asking the
defendant to produce all documents which are in his possession or documents upon which he
seeks to rely during the trial of the suit.
Mode of service of summon [rule 9-30]
The service of summons is of fundamental importance to the civil litigation because as a
matter of general rule, fair trial should be accorded to each and every party whereby he can
defend himself with adequate time. The service of summon has also been an area of concern
for the court as it caused delay in the litigation and therefore taking into account the modern
means of communication, amendments were brought in delivery of summon in 1976, 99,
2002.
Different modes of summons:

 Service of summons in person: rule 10, 16-18: the mode of service of summon in
person is the ordinary mode of service which is governed by following principles:
o This is the most ideal mode of service because as summons means the
intimation of the suit to other person and therefore, if it is in person, it is most
preferred. Wherever practicable, the summons should be served to the
defendant in person or to his authorized agents;
o Where the defendant is absent from his residence at that time of service of
summons and the likelihood of him being found at his residence within a
reasonable time is not clear then the summons may be served to any male
adult member or otherwise to a female adult member of the defendant’s family
residing with him. A servant of the house cannot be said to be a family
member. (explanation of Rule 15)
o In a suit relating to any business or work against a person not residing within
the territorial jurisdiction of the court issuing such summons, it may be served
to the manager or authorized agent carrying out business on his behalf.
o In a suit for immovable property, if the service of summons cannot be made
on the defendant personally, and the defendant has no authorized agent then
the summons may be served to any other agent who is incharge of such
property.
o Where there are two or more defendants, service of summons should be made
on each defendant individually.
 Service by courts [Rule 9]:
o summons to the defendants who are residing within the jurisdiction of the
court shall be served the summons through court officers or through any
approved courier service. It may even be served via registered post, speed
post, fax, messages, email service or through any other means of transmission.
o Where the defendant is residing outside the jurisdiction of the civil court, the
summons shall be served through an officer of the court within whose
jurisdiction the defendant resides.
o The court shall treat refusal of acceptance of summons as a valid service of
summons.
  Service by plaintiff Rule 9A: the court may also permit service of summon by the
plaintiff in addition to service of summons by the court. [Salem Advocates Bar
Association case]
 Substituted service [Rule 17, 19, 20]: the service of summons by a court which is
distinct from the ordinary mode of service and was approved by the court.
o Where the defendant or his agent refused to sign the acknowledgment or
where the service officer after due and reasonable diligence cannot find the
defendant at his residential or business premises and there is no likelihood of
him being available within a reasonable time, the service of summons can be
made by affixing a copy of the summons on the outer door or some other
conspicuous part of the residential or business premise of the defendant. In
such situations the court will ask the service officer to give an affidavit of the
same and upon due satisfaction, the court may declare such affixing as the
valid service of summons.
o The court is not able to trace the correct location even. Where the court is
satisfied that there is enough reason to believe that the defendant avoids the
service of summons or due to certain reasons it cannot be delivered through
ordinary mode, then the service may be effected by affixing the copy of
summons in some conspicuous place in the court house and also upon some
conspicuous part of the house in which the defendant is known to have last
resided, carried on business, or personally worked for gain or any other
manner which the court thinks deem fit.

Written Statement [order 8]

Special rules of defence in written statement:

 The defendant may bring new facts or such actions which make the suit either non
maintainable or declare it as void or voidable in law. The purpose of this rule is to
give an advance notification of the additional grounds relied upon by the defendant to
the plaintiff in order to substantiate the cause of justice and convenience.
 The denials must be specific in nature where each allegation of facts must be
expressly accepted or denied in writing.
 The language of denial should not be vague or evasive as in the case of damages or
for recovery of money, the defendant should categorically express whether he has
received the sum or any part of the sum thereof.
 Every allegation of facts in the plaint if not denied specifically, shall be taken to be
admitted in the eyes of the court except against a person who was under disability
(like law o f limitation, suit for ceiling of immovable property without informing the
affected party as he did not received the summons for demolition of his property
[physical disability]) and may further be required to be proven by the same party.
 Where the defendant relies upon several grounds for defence or raises an issue of set
off or counter claim based on distinct facts, they should be stated separately or
distinctly in the written statement.
 Any new ground of defense which has arisen after the institution of the suit or
presentation of the written statement should be specifically pleaded by the defendant
in his written statement and for the same the court is empowered to take necessary
actions.
  No pleading after the written statement of the defendant can be filed other than by
way of set off or counter claim. This rule is however subject to the discretion of the
court.
 If the defendant fails to present his written statement within the time permitted or as
fixed by the court, the court may pronounce the judgment against him or any such
order in relation to the suit as it deems fit. It may declare the matter ex parte. In the
case of Balraj Taneja vs. Sunil Madan,115 the supreme court held that the court is not
supposed to act blindly upon the admission of the facts made by the defendant in his
written statement, nor should the court proceed to pass the judgment blinding, merely
because a written statement has not been filed by the defendant traversing the facts set
out by the plaintiff in his plaint. In such a case, the proposition should be covered by
the expression ‘the court may in its discretion require any such facts to be proved’
used in sub rule 2 of rule 5 of order 8 for substantiating the cause of justice.
Set off [order 8, rule 6]: a cross claim setup by the party to offset the original claim. It is an
extension of debts of which two persons contesting the matters are reciprocally credited to
each other. Where there are mutual debts mutual debts between the plaintiffs and the
defendant one debt may be settled against the other. The plea of setoff is a plea whereby the
defendant acknowledges the justness of the plaintiff’s claim but sets up another demand of
his own to counter balance the demand of his own against the demand of the plaintiff
either in whole or in parts.
The law recognizes two types of set off, order 8, rule 6 expressly deals with Legal setoff.
However it does not take away the power of the court to allow such adjustment independent
of the provision of the rule 6, order 8 which is referred as equitable se off:
Differences

 Legal setoff should be for ascertained or specific sum of money whereas equitable
setoff may be allowed even for an uncertain sum of money.
 Legal setoff can be claimed as a matter of right and the court is bound to entertain and
adjudicate upon it, whereas equitable setoff cannot be claimed as a matter of right and
the court is having a discretion leading to such adjudication.
 Under legal setoff it is necessary that the amount claimed as a part of set off must be
legally recoverable and must not be time barred whereas under equitable setoff, a
claim may be allowed even if it is time barred and only thing to be established is the
presence of a fiduciary relationship between the parties.
 A legal setoff requires a court fees to be paid whereas for equitable setoff there is no
requirement of a payment of court fees.
Counter claim [Rule 6a to 6g, Order 8, introduced in 1976]: counter claim may be defined as
a claim by the defendant in a suit against the plaintiff. It is a claim independent of and
separable from the plaintiff’s claim which can be enforced as a cross action in favor of the
defendant against the plaintiff.
In Lakshi Das vs. Nana Bhai116 the SC observed the scope of counter claim for the first time
and held that the question before the court is to consider on principles as to whether there is
anything in law statutory or otherwise, which precludes a court from treating a counter claim
as a plaint in a cross suit. The issues of counter claim are to be dealt with the question that

115
AIR 1999 SC 3381.
116
AIR 1964 SC 11.
whether they have to conform with all the requirements of plaint mentioned under CPC if
treated as a plaint and there could not be a legal objection to the counter claim being treated
as plaint under the law and therefore to hold the otherwise would be to erect what in
substance is a matter of defect in a form of pleading into an instrument for denying what
justice manifestly demands.
Object: The provision relating to counter claim thus seeks to save the time of the courts,
exclude inconvenience to the parties to such litigation and decide all such disputes between
the parties avoiding unnecessary multiplicity of judicial proceedings and prolonged trials.117
Modes to setup of counter claim:

 In the written statement itself filed under Order 8 rule 1;

 By amending the written statement with the leave of the court and setting up a counter
claim;
 In a subsequent proceeding or pleading under Order 8 Rule 9 itself.
Who may file a counter claim: a defendant may file a counter claim against a plaintiff and
incidentally alongwith the plaintiff, the defendant may also claim relief against co-defendant
in the same suit. But a counter claim solely against the co-defendant is not maintainable.118
Effects of counter claim: the counter claim of the defendant will be treated as a plaint and the
plaintiff has a right to file a written statement in answer to the counter claim of the defendant.
The counter calim of the defendant will be treated purely on the merits and on the principles
governing the plaint and the plaintiff has to file a reply to the counter claim which shall be
treated as his written statement and all the rules governing the aspects of plaint are applicable
on the counter claim.
The difference between set off and counter claim:

 Set off is a statutory defence to a plaintiff’s action whereas a counter claim is

substantially a cross action suit.
 Set off must be for an ascertained sum of money or it must arise out of the same
transaction whereas a counter claim need not arise out of a same transaction;
 Set off is a ground of defence to the plaintiff’s action which would afford an answer
to the plaintiff’s claim in toto or pro tanto (in a proportion). Whereas the written
statement is a weapon of offence which enables the defendant to enforce a claim
against the plaintiff effectually as an independent action.
 In case of a legal set-off the amount must be recoverable at the date of the suit, while
in case of counter claim the amount must be recoverable at the date of filing of written
statement.
 When the defendant demands in a plaintiff’s suit an amount below or upto the claim
of the suit, it will be treated as set off in a strict sense but when the claim is for a
larger amount, the excess claim raised may be treated as a counter claim.

117
Ramesh Chandra vs. Anil Panjwani, AIR 2003 SC 2508.
118
Rohit Singh vs. State of Bihar, AIR 2007 SC 10
Appearance and non-appearance of parties:
Rule 1 and 12:
Chota Lal vs. Amba Lal Hargoban: Bombay high court held that where a party arrives late for
his suit or application, he is entitled to restore his suit or application on the basis of payment
of costs.
Currin Bhai vs. N H Moos: it is difficult to agree with the principle developed in the case of
chota lal. If such a rigid rule is laid down, it might mean that the defendant will successively
prevent his suit from ever being heard and for all his misconduct, all he has to do is pay a cost
at a later stage for restoration of the matter altogether and that is something which the court
obviously cannot allow to happen.
Lakshi Commercial Bank ltd. vs Hans Raj: the underlined principles is that until the suit is
finally decided a party has a right to come in and defend the suit and this rule should be
liberally construed.
Arjun Singh vs. Mohindra Kumar (Supreme Court, AIR 1964 SC 993): one has to give valid
reason for restoration, payment of cost is not sufficient.
It is a fundamental rule of law of procedure that a party must have a fair and reasonable
opportunity to represent his case and for that purpose he should have a prior notice of legal
proceedings being initiated against him. If the summons is not duly served which is a
condition precedent to a fair trial or it does not give him sufficient time to represent his case
sufficiently, then no decree can be passed against him.119
Ex parte orders:
Ex parte is a decree passed in the absence of the defendant. Where the plaintiff appears and
the defendant does not appear at the time when the suit is called for hearing the court may
hear the suit ex parte and pass a decree against him. Such a decree is neither null and void nor
inoperative but is merely voidable subject to the ground of availability of sufficient cause or
legal reasons.120
Remedies against the order of ex parte:

 To apply to the court by which such decree is passed to set it aside under Order 9 Rule
13 of CPC;
 To prefer an appeal against such decree under Section 96(2) or to file for revis0ion
under Section 115 of CPC where no appeal lies;
 To apply for review, order 47 Rule 1;
 To file a suit on the ground of fraud.121
The above remedies are concurrent and they can be prosecuted simultaneously or
concurrently and where two remedies are resorted to one cannot be said to be operating in
derogation of other.
Setting aside ex-parte rule 13: an order of ex parte has been passed may apply for setting it
aside and where there are more than one defendants then anyone of them can apply to set it
119
Begum Para vs. Luiza Matilda Fernandez. 1984 2 SCC 395.
120
Pandurang Ramchandra vs. Shanti Bai Ramchandra, AIR 1989 SC 2240.
121
P Kiran Kumar vs. A S Khadar, AIR 2002 SC 2286.
aside.
Where the application will lie: an application to set aside the ex parte order may be made to
the court which has passed the ex parte order and where such decree is confirmed by a
superior court then an application may lie before such superior court.
The grounds for setting aside the order of ex parte:

 If the summons were not duly served and the defendant satisfied to the court for the
same then it acts as the valid ground for setting aside the ex parte order;
 Availability of a sufficient cause which has prevented his appearance in the court: the
expression sufficient cause is not defined anywhere but the party should not be
deprived of hearing unless there has been something equivalent to misconduct or
gross negligence on his part.
 Necessary materials should be placed before the court to show that the applicant is
vigilant and diligent, whether or not there is a sufficient cause would depend upon
facts and circumstances of the cases, if there are delaying tactics and non cooperation
on part of the parties, the party cannot seek indulgence of the court. The test to be
applied is whether the party honestly intended to remain present at the hearing of the
suit and did his best to do so. 122 The language of the above rule is plain, express and
unambiguous and the grounds mentioned therein are exhaustive. E.g. of sufficient
cause: the burden of proving sufficient cause for non appearance lies on the
defendant and it is enough to prove to that he attempted to remain present, when the
suit was called for hearing. Certain causes have been held to be sufficient causes for
the absence of defendant which are :
o The bonafide mistake as to the date of hearing;
o Late arrival of train or other modes of transportation;
o Sickness of the counsel;
o Fraud of the opposite party;
o Negligence of next friend or guardian in case the defendant is minor;
o Death of a relative of a party;
o Strikes of advocates
 No sufficient cause example:
o Dilatory tactics, delaying tactics;
o Negligence of party;
o Counsel being busy in some other court;
o Absence of defendant after the prayer of adjournment has been refused;
o Mere thinking that the case will not be called upon for hearing;
o Willful avoidance of taking part in court proceedings;

Remedy if ex parte order is passed:

 Appeal: an appeal lies against an order rejecting an application to set aside the ex
parte decree under Section 96(2). There is a conflict before the court that whether in
such cases the appellate court can only consider the decree passed by the lower court
on merits or whether the court can also consider sufficient grounds or reasons
attached with the non appearance of the party

122
Payal Ashok Kumar vs. Captain Ashok kumar, 1992 3 SCC 16; G P Srivastav vs. R K Raijada, 2000 3 SCC
54.
  Revision: an order setting aside an ex parte decree is ‘case decided’ within the
meaning of section 115 which is subject to the revision of the court
 Review: since all the remedies against an ex parte decree are concurrent and
aggrieved party may file an application for review under Order 47 Rule 1.
 Suit: If all doors are closed, a suit for fraud may be filed. A suit to set aside an ex
parte decree is not maintainable, but if an ex parte decree is alleged to have been
obtained by the plaintiff’s fraud then the defendant can file a regular suit to set aside
such decree as fraud vitiate the solemn objective of justice.

FIRST HEARING OF THE SUIT [ORDER 10, 14, 15]:

First hearing of a suit means the day on which the court goes into the pleadings of the parties
for understanding their contentions. Presentation of the plaint is the first stage of the trial,
submission of written statement is the second stage and the third stage of the suit where
framing and settlement of issues in the presence of parties takes place, is called first
hearing.123 In this case, it was observed that the date of fist hearing is the date on which the
court proposes to apply its mind in the contentions of the parties to the suit and in the
documents filed by them for the purpose of framing of issues.
Object of first hearing: under order 10 rule 1, a the stage of first hearing the court will
ascertain whether the parties accept or deny the allegations of fact or law maid either in plaint
or written statement and if there is no possibility of settlement the case will be enlisted for
detailed hearing. Hence at the stage of first hearing the job of the court is to ascertain with
precision the proposition of law or fact on which the court may frame an issue and examine
the testimony of the parties.
Framing of issues [order 14, 1]: issues arise when a material proposition of fact or law is
affirmed by one party and denied by the other party. Each such material proposition so
affirmed or denied shall become the cause of a distinct issue.
Kinds of issue: rule 1 of order 14 provides that issues can be issues of fact, issues of law or
mixed issues of fact and law. Issues of law may relate to : the jurisdiction of the court, a bar
to the suit created by any law for the time being in force.
Importance of issues:

 it is the issues framed and not the pleadings of the parties that will guide the parties in
leading the evidences.
 The court cannot refuse to determine a point an issue has been framed and the
evidence were lead by the parties even if the same were not included in the pleadings.
 The court should not frame any such issue which does not arise in pleadings as it
helps the court from avoiding the deviation from the subject matter.
 Issues must be confined to material question of fact or law (facta probanda) and not
on subordinate facts or evidences by which the material facts are either proved or
disproved (facta probantia)
 One issue should preferably cover only one fact or law in dispute between the parties.
 If the case goes for appeal, the appellate court is under duty to decide the issues
settled for trial and not on the pleadings of the parties. 124 It was held in this case that
123
Siraj Ahmed vs. Prem Nath, AIR 1993 SC 2525.
124
State of Gujarat vs. Jaypal Singh, Jaswant Singh Engineers and Contractors
 issues are the backbone of the suits which act as the lamp post for enlightening the
parties to the allegations, the trial court and even the appellate court as to what is the
actual controversy, what is the evidence and where lies the actual truth.
Materials for framing issues {Rule 3}

 Allegation made on both by the parties or persons presenting on their behalf or

through the pleaders appearing for the parties
 Allegations made in the pleadings or in answer to the interrogatories
 Documents produced by the parties
Disposal of the suit [order 15]:
Court may pronounce the judgments on the first hearing:

 Where the parties are not at issue or of any question of fact or law
 Where there are two or more defendants and anyone of them admits to the claim of
the plaintiff, the court may pronounce the judgment against such defendants and a suit
may proceed against other defendants
 Where the summons has been issued for the disposal of the suit and either party fails
without sufficient cause to produce the evidence on which he relies
 Where a party or his pleader makes certain admission of the facts which are sufficient
enough to dispose of the case
 Where after the issues have been framed the court is satisfied that no further argument
or evidence is required
Discovery, inspection [order11], admission (read by own) [order 12] and production,
impounding and return of documents [order 13] and affidavits [order 19]:

 Discovery and inspection:

o Discovery means to compel the opposite party to disclose what he has in his
possession. It is a compulsory disclosure by a party to an action of facts or
documents on which the other side wishes to rely. After the settlements of the
issues, a party to the suit may require information from his adversary as to
facts or documents in possession of such party through putting up a series of
questions which is called interrogatories. The judge will go through these
questions and if he considers them proper he will compel the other side to
answer them on oath before the trial, this particular submission on oath is
called discovery of facts.
 Interrogatories [Rule 1 to 11]:
o Object
 to know the nature of the case of the opponent
 To support his own case either by directly obtaining admission or
indirectly by impeaching or destructing the case of his opponent.
o Who may administer interrogatories
 It may be administered by one party to a suit to the other party which
may be the case that a plaintiff may ask interrogatories to the defendant
and vice versa
 Interrogatories may be addressed to a co-plaintiff by plaintiff and to
the co-defendant by the defendant but it is necessary that all of them
are parties to the suit.
 o Rules for framing interrogatories:
 Interrogatories may be administered in writing with the leave of the
court and subject to the limitations as may be prescribed by the court
 The particulars of the interrogatories proposed to be delivered should
be submitted to the court which shall decide within the ten day from
filing of such application
 Interrogatories may be administered by a plaintiff to a defendant
provided that there is some question or issue between them in the suit
or proceedings
 No party can deliver more than one set of interrogatories without the
order of the court
 No leave may be granted to the plaintiff for administering the
interrogatories until the written statement is filed by the defendant or
the time to file the written statement has expired and similarly a
defendant may not file interrogatories before filing his written
statement
 Where a party to the suit is corporation or body of persons,
interrogatories may be administered to a officer or member of such
corporation
 Where a party to a suit is minor or lunatic person, interrogatories may
be administered to his next kin
 Interrogatories and an affidavit in support to such interrogatories must
be delivered to the court in prescribed form
 Interrogatories must relate to or must have a reasonable nexus with the
subject matter of the suit
 Interrogatories should be submitted the court within the ten days of
service of such interrogatories or the time as fixed by the court
 Interrogatories must relate to the question of fact and not the
conclusion or inferences of the law
 Interrogatories may be objected on the ground that they are scandalous,
vexatious, and irrelevant or unreasonable or not in bonafide intention
in relation to the subject of the suit
 The cost of the interrogatories shall be borne by the party
administering them but the court may also order the party who has
defaulted to answer such interrogatories to pay the cost
 Any party to the trial of the suit may use in evidence any one or more
of the answers or any part of the answers thereof in support of his
claim to the suit
 Where any person fails to comply with an order to answer
interrogatories his suit can be dismissed if he is a plaintiff or his
defence may be struck off if he is a defendant.

Interim orders
Interim orders means those intervening order which are temporary in nature and remain in
force for the time being during the pendency of a suit or proceedings which do not finally
determine the substantive rights and liabilities of the parties in respect to the subject matter of
the suit or proceedings.
Types of interim orders:
o Payment in court [order 24]
o Security in costs, order 25
o Commissions, order 26
o Arrest before judgment, order 38
o Attachment before judgments, order 38
o Temporary injunction, order 39
o Receiver, order 40

Appointment of commissions [Sections 75-78 read with Order 26]: it deals with the power of
the court to issue commission which is discretionary in nature and can be exercised by the
court for doing full and complete justice between the parties. it can be exercised by the court
either on the application of the parties or suo moto.
Purpose:

 To examine witnesses: the court has a discretion to relax the rule of attendance of
witnesses on the ground of inability of the person to attend the court relating to
sickness or infirmity or his presence may be detriment to the public interest. The court
may issue commission on the following grounds:
o If the person to be examined as a witness resides within the local limits of the
court’s jurisdiction and is exempted under the code from attending the court or
he is suffering from sickness or physical infirmity making him impossible to
attend the court or in the interest of justice, for expiditious disposal of the
case- a commissioner is deemed necessary.
o If the person resides beyond the local limits of the court’s jurisdiction
o If he is about to leave the jurisdiction of the court
o If the person is a government servant and in the opinion of the court his
attendance may not be without detriment to public service.
o If the person is residing out of india and the court is satisfied that his presence
is necessary
 To make local investigations: the court may in a suit appoint a commission to conduct
local investigation and report thereon for the purpose of
o Elucidating any matter in dispute
o Ascertaining the market value of the property for which the calculation of
mesne profits or annual net profits is required
o The object of local investigation is not to collect evidence which are
admissible directly in the court but to obtain the evidences from its very
peculiar nature which is available or found only on the spot.
 To adjust accounts: in any suit where examination or adjustment of accounts is
deemed necessary, the court may direct a person to act as commissioner for carrying
out the instructions of the court and report thereon.
 To make partitions (at the time of executions): where a decree of partition of
immovable property has been passed, the court may issue a commission to carry out
the modes of partition according to the rights declared in the decree and submit a
report thereon to the court
 To conduct sale of the property: where in any suit it becomes necessary to sell a
immovable property which is already in the custody of the court and the preservation
of the same becomes difficult pending the final determination of the rights, court may
 appoint the commission if it deems fit directing him to conduct such sale and report
thereon.
 To perform ministerial act: clerical works
 Powers of the commissioner [Rule 16-18, Order 26]:
o Summon or procure the attendance of the parties and their witnesses and
examine them
o Call for examining the documents
o Enter into any land or building mentioned thereon in the order
o Proceed ex parte if the parties do not appear before him even after repeated
summons and reminders
 Who will take care of the expenses: they may be taken care of by the party asking for
such appointment by depositing the relevant expenses in the court.
Arrest before judgment [order 38, rule 1 - 4]: under the special circumstances the court can
order for arrest of a debtor where the creditor moves an application suggesting that the
execution of the decree may be delayed on account of the debtor or the party absconding
from the local jurisdiction of the court. The object of this order is to enable the plaintiff to
realize the amount of decree eventually if passed in his favor and to prevent any attempt on
behalf of the defendant to delay the cause of the justice or to delay the execution of the
decree.
Grounds of the arrest are:

 The defendant is having an intent of delay or to avoid the court process or to obstruct
the judicial processes has absconded or left the local limits of the jurisdiction of the
court or is about to abscond or leave the local limits or has disposed of or removed the
property from the local limits of the court or any part of the property thereon.
 The defendant is about to leave India under circumstances affording reasonable
opportunity or apprehension that the plaintiff may not be able to realize his claim or
the defendant may delay the execution of the suit.
 The plaintiff making a request for arrest of the defendant before the judgment shall
have to supply these grounds on the affidavit but the defendant will not be arrested if
he is entrusting his task to his manager or agent for executing the decree. Even after
fulfilling the above grounds the order of arrest may not be passed as it rests
completely within the discretion of the court.
 Conditions precedents before arrests:
o The plaintiff’s suit must be bonafide and his cause of action must be
unimpeachable
o The court must have a reason to believe on the basis of adequate materials that
there is an urgency to exercise this extraordinary power and the same lies
within the ambit of the court.

Complete it by urself
Execution of decrees [Section 38, order 21]: it means the enforcement and giving effect to a
judgment or order of the court so as to enable the decree holder to realize the fruits of the
decree. The execution is deemed to be completed when the decree holder or the judgment
creditor gets money or other things award to him by judgment or decree. In Ghanshyam das
vs Anant kumar Sinha, AIR 1991 SC 2251, it was held that the remedy under the civil
procedure code is of superior judicial quality than what is generally available under other
statutes and the judge being entrusted exclusively with administration of justice is expected to
do better. CPC contains elaborate and exhaustive provisions dealing with all the aspects of
execution providing effective remedies not only to judgment debtors but also to claimant
objectors.
The courts which may execute the decree: section 38 enacts that a decree may be executed
either by the court which passed it or by the court to which it is sent for execution. Section 37
defines the expression ‘court which passed the decree’ and the following courts fall under this
expression:

 The court of first instance which actually pass the decree;

 The courts of first instance in case of appellate decrees;
 Where the court of first instance has ceased to exist, the court which would have
jurisdiction to try the suit at the time of execution;
 Where the court of first instance has ceased to have jurisdiction to execute the decree,
the court at the time of execution would have had jurisdiction to try the suit
In Ghantesher vs. Madan Mohan AIR 1997 SC 471, it was held that a decree may be
executed either by the court which passed it or by the court to which it is send for execution.
In Merla Ramanna vs. Nallapa Raju AIR 1956 SC 87, it was held that a court which has
neither passed a decree not a decree is passed for execution, cannot execute it. it is settled law
that the court which actually passed the decree does not lose its jurisdiction to execute it by
reason of the subject matter thereof being transferred subsequently to the jurisdiction of
another court.
Transfer of decree for execution [Section 39-42 read with order 21 rule 3-9:] as a general
rule, the court which pass the decree is primarily the court to execute it but such court may
send the decree for execution to another court either suo moto or at the application of the
decree holder if following grounds exists:

 The judgment debtor actually and voluntarily resides or carries on business within the
local limits of the jurisdiction of such court;
 The judgment debtor does not have property sufficient to satisfy the decree within the
local limits of the jurisdiction of the court which pass the decree but has property
within the local limits of the jurisdiction of such other court
 The court directs the sale or delivery of immovable property situated outside the local
limits of the jurisdiction of such other court;
 The court which pass the decree considers it necessary for any other reason to be
recorded in writing that the decree should be executed by such other court
In lakshi narayan vs suraj kumar baksh and Mohan deo Prasad vs. Ram Lochan, it was
held that the provision of section 39 stating the grounds for transfer of execution proceedings
are not mandatory and the court has the discretion in the subject matter which will be
judicially exercised by it.
General principles:

 Territorial jurisdiction is a condition precedent to a court executing a decree in respect

of property situated entirely outside its local jurisdiction.
 An executing court cannot go behind the decree; it must take the decree as it stands
and execute it according to its terms. It has no power to vary or modify the terms or to
question its legality or correctness because of the reason that the legality of the main
proceedings cannot be brought into question through collateral proceedings and
therefore no enquiry on this ground can be initiated.125
 In case of inherent lack of jurisdiction, the decree passed by the court is a nullity and
its invalidity could be setup wherever and whenever it is sought to be enforced.
Whether in execution or in the main proceedings.
 Inherent lack of jurisdiction however must appear on the face of the record and hence
if the decree on the face of it discloses certain material on the basis of which the court
could have passed the decree, it would be valid and in such cases the executing court
must except and stand by the decree as it receives.126
 A decree which is otherwise valid and executable does not become inexecutable on
the death of the decree holder or of judgment debtor and can be executed against his
legal heirs.127
 When the terms of the decree are vague or ambiguous, an executing court can
construe the decree to ascertain its precise meaning for which it may refer to the
judgment or even the pleadings of the parties.128
 An executing court can go into the question of the executability or otherwise of the
decree and consider whether by any subsequent developments the decree has seized to
be executable according to its present terms.129
 A decree which becomes inexecutable by operation of law may become executable by
virtue of a subsequent amendment in the statute and can be executed after such
amendment.130
 The executing court has the power to mould the relief granted to the plaintiff in
accordance with the changed circumstances.131
 The court executing the decree transferred to it has the same powers in executing such
decree as if it had been passed by itself.132
Who may apply for execution:

 All the proceedings in execution of a decree commences with filing of an application

for execution which enables the decree holder to realize the relief granted to him
under a decree passed by a competent court. Such application for execution can either
be made to the court who passed the decree or to a transferee court executing such
decree. rules 10 -25 and rules 105-106, Order 21 deals with execution of decree.
 Rule 10: who may apply
o The decree holder
o The legal representatives of the decree holder, if he is dead
125
Bhanwar Lal vs. Universal Heavy Mechanical Lifting Enterprises.
126
Nagin Das vs. Dalpat Ram; K K Chari vs. R M Sashadari.
127
Pradhati Devi vs. Mahadeo Prasad.
128
Dhavan Vaja vs. Solanki Hanuji Khodaji.
129
Jai Narayan vs. Kedar Nath.
130
Dularey Lodh vs. ADJ Kanpur.
131
yashPal singh vs. ADJ.
132
Mahadeo Prasad vs. Ram Lochan.
 o Other representatives of the decree holder
o Any person claiming under the decree
o Transferee of the decree holder if following conditions are met:
 The decree must have been transferred by an assignment in writing or
by operation of law
 The application for execution must have been made to the court which
passed the decree
 Notice and opportunity of hearing must have been given to the
transferor and the judgment debtor in case of assignment by transfer
 The provision of giving notice is mandatory and in absence of it, all the
execution proceedings will be declared void.133
o One or more of the joint decree holders may also apply for execution if
 The decree should not have imposed any condition to the contrary
 The application must have been made for the execution of the whole
decree
 The application must have been for the benefit of all the joint decree
holders.
o Any person having special interest: a receiver appointed by the court may
apply for execution on behalf of the decree holder.134
Who cannot apply for execution of the decree:
A person who is neither a decree holder nor has a right to execute a decree cannot apply for
execution for decree similarly a third party or a stranger has no right for applying for
execution of decree even if he is a beneficiary under a compromise. A receiver appointed by
the court may file for execution but if he is dead, then the legal representatives of the receiver
cannot file for execution.
Against whom this application can be filed:

 The judgment debtor

 The legal representatives of the judgment debtors
 Representatives of the presons claiming under the judgment debtor
 Surety of the judgment debtor
Stay of execution:
Rule 26, Order 21: the executing court shall on the sufficient cause being shown and on the
judgment debtor furnishing security or fulfilling any other such condition as may be imposed
upon him, stay the execution of the decree for a reasonable time to enable the judgment
debtor to apply to the court which has passed the decree or the appellate court for an stay on
such execution. The power to stay execution of a decree by a transferee court (executing
court) is not similar to the power of the court which passed the decree (transferor court). The
transferor court can grant absolute stay on the execution of the decree whereas the transferee
court can grant stay only for a reasonable time enabling the judgment debtor to move to the
transferor court or appellate court for grant of full stay. A transferee court cannot invoke
inherent powers under the code to grant stay on execution.135

133
Dhani Ram vs. Lala Shriram.
134
Jugal Kishore vs. ram cotton co. ltd.
135
Shaukat Hussain vs. Bhubneshwari devi.
Distinction between stay of exaction and injunction
Injunction
It is an order against a person or an individual
restraining him from doing something
Proceedings taken in contravention of
injunction order are not null and void being
without jurisdiction and the non compliance
may make a party punishable under law. 136
Stay of execution
It is a direction or an order to a court
requesting it not to do something.
Proceeding in contravention of an order of stay
carries an effect of nullity and hence there will
not be any effect whatsoever.

Mode of execution [order 21 read with section 51]: the code allows different types of modes
for executing a decree and as a general rule a decree holder has an option to choose a
particular mode for executing and enforcing a decree passed by a competent court in his
favor. The power to choose a specific mode is subject to limitations and conditions as may be
prescribed by the code and subject to the discretion of the court. Section 51 permits wider
power for execution of decree and gives an option to the decree holder of enforcing a decree
under any such mode. As a general rule, the court passing a decree should not ordinarily put
any limitation as to the specific mode of execution. In Padrona Rajkrishna Sugar Works ltd.
vs land reforms commissioner, it was held that the cpc imposes no obligation to recover the
dues by the sale of movables or by arrest and detention of the defaulters before immovable
property may be attached. In shyam singh vs district collector hamirpur, it was held that
section 51 lays down that an execution against the person of the debtor shall not be allowed
unless and until the decree holder has exhausted his remedy against the property.
Additionally, even if the one of the mode is rejected by the court, the person is entitled to
claim other mode.
Different modes of execution of decree:

 Delivery of property:
o Movable property: section 51a read with rule 31: where the decree is for any
specific movable property, it may be executed by
 Seizure and delivery of the property;
 By detention of the judgment debtor;
 By attachment and sale of property;
 By attachment and detention both;
 The movable property does not include suit for recovery of money, and
hence the modes attached under this part is not available for suit for
recovery of money
o Immovable property: section 51a read with rule 35-36: in the context of
immovable property for possession, if the decree holder satisfactorily
establishes the identity of the decretal property, the decree must be executed
by the court by putting the decree holder in possession thereof which is known
as khas or actual possession. But if the property is in possession of a tenant or
other person entitled and not bound by such decree, the delivery of property

136
Teja singh Mehta and co. vs. Grindlays Bank ltd.; Judhistir vs. Surendra: the decree must be allowed to be
executed unless an extraordinary case is made out no stay should be granted. Even if stay is granted, it must be
on suitable terms so that the terms of the decree are not stifled.
 should be made by affixing a copy of the warrant at some conspicuous place
or by proclaiming to the occupant on the beat of drum regarding the decree
and its execution. This is known as symbolic or formal possession.
 Attachment and sale of property: section 51b: it empowers the court to order the
execution of a decree by attachment and sale or sale without attachment of any
property if it is situated within the local limits of the jurisdiction of the court and it is
immaterial that the place of business of judgment debtor is outside the jurisdiction of
the court. The words attachment and sale are to be read disjunctively and therefore
attachment of property is not the condition precedent for sale of the property. An
order of attachment takes effect from the moment it is brought to the notice of the
court and the purpose of such attachment under rule 54 is to inform the judgment
debtor about the attachment so that he may not transfer or create encumbrances over
the property thereafter.137
 Arrest and detention, section 51c: where the decree is for payment of money, the
execution by detention on civil prison should not be ordered unless after giving the
judgment debtor an opportunity of showing cause that why he should not be detained
and the court for reasons to be recorded in writing is satisfied that
o The judgment debtor with the object of obstruction for delaying the execution
of the decree is likely to abscond or leave the local limits of the court’s
jurisdiction or
o Has after the institution of the suit in which the decree was passed dishonestly
transferred or removed any part of his property
o The judgment debtor has or has had since the date of the decree the means to
pay the and refused or neglected to pay the same
o That the decree is for a sum to which he was bound under a fiduciary
relationship138
 Appointment of receiver, section 51d: execution of decree by the mode of
appointment of receiver is an equitable mode of execution and is purely at the
discretion of the court and cannot be claimed as a matter of right. It is considered to
be an exceptional remedy and a very strong case has to be made out for resorting to
such mode of execution. The court must be satisfied that the appointment of receiver
should be in benefit of both decree holder and judgment debtor in comparison to the
sale of the property. This cannot be resorted to circumvent the statutory provisions.139
 Partition, section 54: where a decree is for partition or separate possession of an
undivided estate, the partition or separation should be made by collector as it serves
two important objects:
o The revenue authorities are more conversant and better qualified to deal with
such matters then the civil courts;
o The interest in the governments with regard to the revenue paying estates
would be better safeguarded by the collector then by the court itself
 Specific performance of contracts, rule 32: where a decree is for specific performance
of a contract, creating mutual rights and liabilities in favor of the parties where the
defendant is equally entitled just like the plaintiff may seek for the execution by the
mode of specific performance and if the judgment debtor disobeys it willfully it may
be executed through attaching the property of the defaulter or may even extend to

137
Deshbandhu Gupta vs. N L Anand.
138
jolly George varghese vs bank of kochi
139
Nawab Bahadur vs. Karnani Industrial Bank ltd.
 detention in civil prison. Where the decree does not specify the time for specific
performance, it should be executed within reasonable time.140
 Injunction, rule 33: where a decree is for injunction which may be prohibitory or
mandatory injunction it may be enforced by attachment of property if the judgment
debtor willfully disobeys it and may even extend to detaining in civil prison. In cases
of corporation, the detention order may be passed against the directors or principles
officers of the corporations.
 Attachment of rent and mesne profits, rule 42: where a decree is h for rent or mesne
profits the court may order attachment of the property of the judgment debtor before
the amount due from him is ascertained, but such attachment order will not in any
way interfere with the interests already created or vested in the property. It is treated
equivalent to the order of attachment before judgment.141
 Attachment of decree, rule 53: where the property is to be attached is a decree either
for payment of money or for sale in enforcement of the mortgage, the attachment may
be effected either by the court which passed the decree or by the executing court by
issuing the notice to the court which passed the decree so that the other court does not
continue the execution of the other decree.

140
Saroj Rani vs. Sudershan kumar Chaddha.
141
Paul Brothers vs. Ashim Kumar
Substantive law: the function of substantive law if to define, create or confer substantive legal
rights or legal status or to impose and define the nature and extent of legal studies.
Procedural law: the function of procedural law is to provide the machinery or the manner in
which the legal rights, status or duties may be enforced or recognized by a court of law or any
others properly constituted tribunal.
History of Cpc

 Before 1859, no codified procedural law and the court used to decide the matter on
their own terms.
 Due to the mutiny of 1857, the crown introduced CPC in 1859 in the small causes
court and presidency courts.
 In 1877, CPC was largely amended and a new CPC was brought in.
 In 1882, again new CPC was introduced by making tremendous changes.
 Through common dialogue with Indians, new CPC in the year of 1908 was introduced
which was enforced on all courts. It was simplified version and provided for speedy
trials.
 In 1951, a minor amendment was made to make CPC more sort of Indian law.
 In 1976, CPC was further amended.
Objects of CPC 1908

 A litigant should get a fair trial in accordance with the accepted principles of natural
justice.
 Every effort should be made to expedite the disposal of civil suits and proceedings so
that justice may not be delayed.
 The procedure should not be complicated and should to the extent possible ensure a
fair deal to the poorest sections of the community who do not have the means to
engage a pleader to defend their cases.
Objects of amending CPC in 1976:

 Inclusion of doctrine of res judicata.

 Power to transfer proceedings from one high court to another high court is given to
Supreme Court. [jaylalitha Case, from Tamil Nadu to Karnataka]
 Freedom form attachment of a portion of salary to all salaried employees is granted.
 Provision of giving notice under §80 before the institution of the suit against the
government for a public office was made less stringent so as to facilitate justice
delivery.
 Restriction was imposed on the right of appeal and revision. Appeal is merely a
statutory provision.
 Provisions were made to ensure that written statement and documents are filed before
delay.
 Important changes were made to provide relief to poorer sections of the society.
Letters patent: an appeal can move laterally within one hierarchy court.
But even after this, a government report suggested that the average time taken for disposal is
5-6 years and cases are not fastly resolved. Under the chairmanship of Justice Mallimath, a
committee was formed which provided for the faster disposal of cases.
The Supreme Court even pointed out the same things in the case of Salem Bar Association I,
where SC focused that essential amendments are needed to be undertaken.
The amendments of 1999 and 2002 were implemented but a new scope was created through
grant of discretionary power to the judges for final say. The reason being the protest from the
advocates on genuine grounds of justice delivery and Salem II case.
Major amendments brought in through 1999-2002 amendments:

 In several matters such as issuance of summons, filing of written statement,

amendment of pleadings, production of documents and examination of witnesses a
time limit is prescribed. It was a matter of self imposed duty on the courts. A limit of
7 days was made but it was further diluted through the Salem II case and if there are
genuine grounds of delay, such delay could be accepted.
 A new provision for settlement of disputes outside the court has been introduced. Out
of the bounds of the court technicalities. The court may even appoint an appropriate
person for the settlement of the dispute outside the court and after the finality of the
settlement, the settlement has to be presented in the court and a decree would be issue
on those grounds so that any of the parties may not revert the matter back to the court
after some time.
 The number of adjournments has been restricted. Initially it was restricted to 3.
 A provision of recording the evidences by the court appointed commissioner was
introduced to save the time. Qualified to be a lawyer, is neutral to the matter and
knows the court procedure. Such person has to be submit the report of all his findings,
evidences and witnesses statements to the court and have to authenticate the evidences
produced in the court. After the dilution, the advocates can ask the court not to
appoint the commissioner and court may exercise discretion by not appointing the
commissioner.
 Endless arguments were aimed to be shortened by empowering the court to fix a time
limit on oral arguments and by permitting to place written arguments on record by the
parties. Ayodhya case, SC ordered the special CBI court to complete the hearing
within 2 years by limiting the arguments. Dilution: The court may fix and on the
ground of genuine issues the court may extend the pre-fixed time line. Therefore, no
rigid provision was placed.
 The scope of first appeal, second appeal, letters patent appeal and revision has been
curtailed. On what grounds the appeal is preferred, such grounds should be
exceptional and can the same question be raised before the appellate court. And even
if some argument is not presented in a lower court and such point is raised in the
appellate court, such arguments are restricted. Revision is only restricted to deal with
the error present in the existing judgment.
If any point is dealt by CPC, then CPC becomes exhaustive and have a greater say. In other
cases, provision of CPC may not be applied because if applied it can make the matters
complicated before such matters were deliberately not included in CPC so as to ease the
justice delivery. [The code of civil procedure is exhaustive on matters which are specifically
dealt by it but it is not exhaustive on those points which are not specifically dealt or intended
to be touched upon therein. Manohar Lal v. Seth Hiralal AIR 1962 SC 527].
Important definitions:

 Decree: the decree is defined under S 2(2) of CPC where it says that decree means the
formal expression of adjudication by the court which conclusively determines all or
any of the matters in controversy in the present suit which may either be preliminary
or final. It shall be deemed to include the order of rejection of a plaint but shall not
include- any adjudication from which an appeal lies as or in the form of an appeal
from an order (appealable order), any order of dismissal of suit for default.
Essential conditions of a decree:
o There must be adjudication: we essentially include judicial or quasi judicial
adjudication. For the purpose of decree, adjudication shall mean judicial
determination of the matter in dispute. Therefore, a decision on a matter of
administrative nature or an order dismissing the suit for default of appearance
by parties cannot be termed as a decree. Similarly and order passed by an
officer who is not a court or not vested with any kind of judicial power by law
is not a decree. [Deep Chand v. Land Acquisition Officer, AIR 1994 SC
1901]
o Such adjudication must be there in a suit. Suit is not defined in cpc. It was
defined in the case of Hansraj Gupta v. Official liquidators of Dehradun
mussoire electric tramway company lmt. [AIR 1933 PC 63] where the
court stated that, any court proceeding in cpc initiated by the presentation of a
plaint. The word suit ordinarily means a civil proceedings instituted by the
presentation of a plaint. Thus every suit has to be instituted by presenting a
plaint, and without being a suit, there cannot be a decree.
o Right of parties in controversy are to be determined: substantive rights and not
procedural rights. For any kind of procedural order, its merely a form of order
and not a decree. Such procedural rights would be exercised by submission of
certain applications. Whereas the substantive rights are determined through the
merit and subject matter of the case. The word rights, for this purpose
essentially means, substantive rights of the parties and not merely a procedural
right. [Dattatraya v. Radha Bai AIR 1921 Bom 220]. The substantive rights
of the parties, includes any rights relating to the status, jurisdiction, frame of
the suit etc. thus an order for dismissal of a suit for default of a appearance or
an order of refusing the leave to sue in informa pauperis etc. do not determine
the substantive rights of the parties and hence are not construed to be a decree.
In the conditions where procedural rights are even determined with substantive
right, such orders would even be called decree.
o Conclusive determination of rights: the court has finally decided one right in a
suit and that determination remains final remains final for the entire suit in that
particular court. If multiple rights are to be determined, determination of every
single rights would be called as decree even though all the rights may not be
determined at that stage. The determination must be final and conclusive as
regards to be court which passes it. [Narayan chandra v. Pratirodh Sahini].
An inter locutory order which does not decide the rights of parties finally like
refusal of adjournment etc. are not decrees because they do not lead to any
conclusive determination on merits of the case.
o Formal expression: there must be a formal expression of such adjudication
which means that all the requirements of the form or suit must be complied
 with and it must be deliberate in manner and should be according to the
procedure prescribed by the law. In case of formal expression it is the decree
which follows the judgment and must be drawn up separately. Shakultala
devi v. kuntal kumari. Operative order acts as judgment when multiple
decrees are passed before the actual judgment.
Order or decisions which are decrees:

 Order of abetment of suit: decision of legal ground regarding the fact that the parties
are having certain rights or not. Order of integration and disintegration of rights even
are called decrees. Decision on the merits of the case which carries the effect of
conclusive determination of right.
 Dismissal of appeal as time barred: the right of reaching to the court is exhausted and
therefore this decision acts as the conclusive document of the appeal. Therefore, the
original order of the lower court stands.
 Dismissal of suit or appeal for want of evidence or proof: these kind of matters and
cause of actions are mere claims as no evidence are produced. And this dismissal is
res judicata so that they the parties cannot go to court of the same level. Even such
decisions are being made on merits of the case, therefore it have the effect of a decree.
and this has an indirect effect on the other party as this order allows the defendants to
continue to do whatever they were doing before this suit.
 Order holding appeal not maintainable: the decision of lower court stand and the
parties are directed to do whatever they were doing. Indirect conclusive decision on
the rights of the parties.
 Order holding that right to sue does not arise: as it mere statutory right
 Order holding that there is no cause of action:
 Order refusing one of the several reliefs: the reliefs which are rejected cannot be
raised in court again and therefore such decision is also final.
Decisions which are not decrees:

 Dismissal of appeal for default: no merit of the cases discussed. But ex parte decisions
are decrees.
 Appointment of commissioner to take accounts: mere collection of evidences. Subject
matter of the suit is not in any way being decided. Just the submission of report
regarding his studies.
 Return of plaint for presentation to a proper court:
 Rejection of application for Condonation of delay: it not the discussion of the merit of
the case.
 Order directing assessment of mesne profits.
Preliminary decree and final decree
A preliminary decree is one which declares the rights and liabilities of the parties leaving the
actual result to be worked out in further proceedings as a result of inquiries conducted
pursuant to the preliminary decree, the rights of the parties would then be fully determined
and a decree is passed in accordance with such determination which is final. Both the decrees
has to be in the same suit. A final decree may said to be final in two ways: 1. When the time
for appeal has expired without any appeal being filed against the preliminary decree or the
matter has been decided by the highest court 2. When the time for appeal has expired without
any appeal being filed against the preliminary decree and the matter stands completely
disposed of. [Shankar v. Chandrakant AIR 1995 SC 1211].
Preliminary decree: when an adjudication decides the rights and liabilities of the parties with
regard to all or any of the matters in controversy in this suit but does not completely dispose
of the suit, it is called as preliminary decree. it is only a stage in working out the rights of the
parties which are to be finally adjudicated by a final decree and till then the suit continues.
[Mool Chand v. Director, Consolidation AIR 1995 SC 2493]
The cpc provides for passing of preliminary decrees in following circumstance:

 Suits for possession and mesne profits, order 20 rule 12

 Suit for dissolution of partnership, order 20 rule 15
 Suit for partition and separate possession, order 20 rule 18
 Suits for sale of mortgaged property, order 34 rule 4 and 5
 Suit for redemption of a mortgage, order 34 rule 7 and 8. A court may pass a
preliminary in cases not expressly provided by CPC.
Situation where multiple preliminary decrees can be passes: e.g. 1 st and 3rd from above list.
Phool chand v. Gopal lal [AIR 1967 SC 1470] there is nothing in cpc which prohibits
passing of more than one preliminary decree if the circumstances justify the same and it may
be necessary for the court to do so. Limitation: but the above observation is restricted to
partition suits alone. Later on, the limitation was lifted and now it all depends on the
discretion of the Court which may decide it on the facts and circumstances.
Final decree: final decree is said to be final in two ways:
1. when within the prescribed period, no appeal is filed against the decree or the matter has
been decided by the highest court.
2. when the decree, so far as regards to the court passing it, completely disposes of the suit.
[Shankar v. Chandrakant 1995 3 SCC 413]
There can be more than one final decree. but it may defeat the essence of Cpc as multiple
appeals has to be made for multiple decrees, as it may make the procedure slow.
1. Gulsum Bivi v. Ahmadasa Rowther, AiR 1919 Mad 998: order 20, rule 12 and 18 was
challenged, the court held that: neither of these rules contemplates more than one preliminary
decree and one final decree in one suit. The cpc nowhere contemplates more than one final
decree in one suit. To have two final decrees and to call one decree final or the first one as the
final decree will be a misnomer as it will not be final.(disabling interpretations)
2. Kasi V. Ram Nathan Chettiar 1947 2 MLJ 523: the court observed that the question is
not whether cpc allows more than one preliminary decree or one final decree to be made but
whether the code contains a prohibition against the court in a proper case passing more than
one such decrees and the court took a divergent view and held that there could be more than
one preliminary and one final decree in a suit. (Negative Interpretation) (enabling
interpretation)
3. Shankar v. Chandrakant AIR 1995 SC 1211: it is a settled law that more than final
decree can be passed.
Partly preliminary and party final decree
A decree may be partly preliminary and partly final like in a suit for possession of immovable
property with mesne profits where the court,
1. decrees the possession of the property
2. directs an enquiry into the mesne profits
The former part of decree is final whereas the latter part is preliminary.
Rejection and return of Plaint: There is always jurisdiction remains in the court. It have the
nature of decree. Section 2(2) specifically provides that rejection of plaint shall be deemed to
be a decree whereas an order returning a plaint or memorandum of appeal to be presented to
proper court will not be a decree. the reason is that such an order does not negate any rights
of the plaintiff or appellant in any manner and therefore it cannot be termed as a decision
relating to the matters in controversy in the suit.
Restitution: only if it is demanded as a right or demanded as a relief. Determination of any
question under Section 144 or within its meaning is termed as restitution and is included
within the meaning of decree for the purpose of giving the right to appeal only under the
circumstances where it leads to the adjudication on the aspects of the rights in the
controversy. Otherwise if it is neither made in a suit nor is asked as a matter of right then it
will not be termed as a part of decree.
Appealable orders: an adjudication from which an appeal lies just like an appeal from or
against a decree are termed as appealable orders e.g. orders like returning plaint for
presentation to a proper court or rejecting an application to set aside an ex parte decree or an
order rejecting an application for permission to sue as an indigent person are called as
appealable order and not decrees. The distinction between a decree and an appealable order
lies in the fact that in case of a decree second appeal lies in certain cases whereas for an
appealable order there is no provision for second appeal.
Judge: it means the presiding officer of a civil court. Although the term court has not been
defined in CPC, it can commonly be referred as assembly of judges or other persons acting as
a tribunal in civil or criminal cases where the justice is judicially administered. [E. D.
Sinclair v. L.P.D Brougton]
Judgment: Section 2(9), it means the statement given by a judge of the grounds of a decree
or an order. It is more sort of universal nature. Essential elements of judgment:

 The essential elements of a judgment is that there should be a statement laying down
the grounds of the decision. [Vidya Charan Shukla v. Khub Chand Baghel, AIR
1964 SC 1099]
 Every judgment other than that of small causes court should contain
o A concise statement of the case;
o Points of consideration;
o The decision thereon;
o The reasons for the decisions.

Balraj Taneja v. Sunil Madan AIR 1999 SC 3381: a judge cannot merely say ‘suit decreed
or suit dismissed.’ The whole process of reasoning has to be set out for deciding the case one
way or the other. Even the small causes court judgments must be intelligible and must show
that the judge has applied his mind. The judgment need not be on all the issues in a case and
may even be on a preliminary issue itself.
Distinction between judgment and decree:

 A judgment is the statement given by the judge laying down the grounds of a decree.
Whereas decree is the enforcement of the rights developed on the basis of the
reasoning pronounced in the judgment.
 It is not necessary that there should be a formal expression of every order in the
judgment though it is desirable. Whereas for a decree it essentially has to be a formal
expression.
 A judgment has to include precisely the relief granted, rule 6-A of order 20 inserted
by 1976 amendment.
Order: order means the formal expression of any decision by the civil court which is not a
decree. section 2(14).
Order is also a formal expression. Order may also include a determination by the court on a
specific issue and even decide the rights of the parties. But it does not pronounce the
conclusive determination. As a general rule an order of a court of law is based on objective
considerations and may contain a discussion of the question at issue and the reasons which
prevailed within the court which lead to the passing of the order.
Similarities between order and decree:

 Both relates to matters in controversy

 Both are the decision given by the court.
 Both are judicial adjudication pronounced by the court
 Both are formally expression of a decision.
The difference between order and decree:

 A decree can only be passed in a suit or civil proceedings which commenced with
presentation of a plaint whereas and order may originate even from a proceeding
which commenced through an application.
 A decree is an adjudication conclusively determining the rights of the parities with
regard to all or any of the matter sin controversy. Whereas the order may or may lead
to an conclusive determination of any such right.
 A decree may be preliminary or final or partly preliminary or partly final whereas
there cannot be a preliminary order.
 Except in certain suits, mostly, a suit will have two decrees, one preliminary and one
final or may even have a single final decree. within civil suit or proceeding depeding
on the number of applications, there can be multiple orders.
 Every decree is appealable unless otherwise expressly provided. Only those orders for
which a provision for appeal is mentioned in CPC are appealable.
 A second appeal lies to the high court on certain grounds from the decree passed on
first appeal. No second appeal is allowed even in case of appealable orders.
Decree holder: Any person in whose favor a decree has been passed or an order capable of
execution has been made is called decree holder. Section 2(3). Decree holder need not
necessarily be a plaintiff.
Judgment debtor: any person against whom a decree has been passed or an order capable of
execution has been made. Section 2(10).
Foreign court: foreign court means a court situated outside india and not established or
continued by the authority of central government. E.g. Pondicherry in 1908.
Legal representative: legal representative means a person who in law represents the estate
of a deceased person and includes any person who intermeddles with the estate of the
deceased person and where a party sues or is sued in a representative character, the person on
whom the estate devolves on the death of the party so suing or sued.
Decree and legal documents are even part of estate. So it is transferable asset and can be a
responsibility even.
Mesne Profits: mesne profits means those profits which the person in wrongful possession of
such property actually received or might with ordinary diligence have received together with
interest on such profits but shall not include profits due to improvements made by the person
in such wrongful possession. Section 2(12)
Object of mesne profits: every person has a right to possess his property and when he is
deprived of such possession, he is not only entitled to the restoration of such possession but
also damages on account of such wrongful possession. Thus the object of decree for mesne
profits si to compensate the person who has been kept out of possession of his property and
has been deprived of his right of peaceful enjoyment of his property even though he was
entitled to such possession thereof. [Lucy Kochuvareed v. P. Mariappa Gounder AIR
1979 SC 1214]
Criterion for Assessment of Mesne Profits: a person who is in wrongful possession and
enjoyment of immovable property is liable for mesne profits. Where the owner or plaintiff is
dispossessed by several persons every one of them would be liable to pay mesne profits even
though they might not be in actual possession or the profits have not been received by them.
In such cases the court may hold all the possessors jointly and severally liable leaving them to
have their rights adjusted in a separate suit for contribution or within the same suit through
division of liability among each of them.
Mesne profits are in the nature of damages and while assessing the mesne profits the court
usually take into account what the defendant has gained or reasonably might have gained by
his wrongful possession of the property. The court may decide the mesne profits according to
the facts and circumstances. [Fateh Chand v. Balkishan das AIR 1963 SC 1405].
The test to ascertain mesne profits is not what the plaintiff has lost by being out of possession
but what the defendant has gained or might reasonably with ordinary prudence have gained
by such wrongful possession. [Marshall Sons & Co. v. Sahi oritrans Pvt, Ltd. AIR 1999
SC 882]
Principles for calculation mesne profits:

 No profits by a person in wrongful possession.

 Restoration of status before dispossession of decree holder.
 Use to which a decree holder would have put the property if he himself was in
possession.
Interest over mesne profits: interest is an integral part of mesne profits which has to be
allowed in computation of mesne profits itself. the rate of interest allowed over mesne profits
shall not exceed 6% per annum and such interest can be allowed till the date of final payment.
[Mahant Narayan Das ji v. Tiruumalai Tirupati Devasthanan AIR 1965 SC 1231].
Affidavit: it is a declaration of facts reduced to writing and affirmed or sworn before an
officer having authority to administer oaths. It should be drawn up in first person and should
contain statements and not inferences.
Cause of Action: bundle of essential facts which are necessary for the plaintiff to prove
before he can succeed. It is an antecedent to the suit and if the plaint fails to disclose the
cause of action, the court will reject such plaint.
Caveat: caveat is an official request that a court should not take a particular action without
issuing notice to the party lodging the caveat and without affording an opportunity of hearing
them. Going to the court before the other party approaches.
Plaint: a plaint is a statement of claim, a document or a memorial by the presentation of
which a suit is instituted. It contains the grounds on which the assistance of the court is
sought by a plaintiff and also referred to as the pleadings of the plaintiff.
Summons: it is a document issued from the office of a court calling upon the person to
whom it is directed to attend before a judge or an officer of the court for a certain purpose. It
is a written order that legally obligates someone to attend a court of law at a specified date.
Written statement: it is considered as a reply of the defendant against the plaint filed by the
plaintiff. It is referred as pleading of the defendant dealing with every material fact raised in
the plaint. It may also contain new facts discussed which are in favor of defendant or legal
obligations against the claims of a plaintiff brought before the court.
Jurisdiction of the court: a litigant having grievance of civil nature has a right to institute a
civil suit in a competent civil court unless its cognizance is either expressly or impliedly
barred by any statute. [Abdul Waheed Khan v. Bhanwani AIR 1966 SC 1718]. A suit for
its maintainability requires no authority of law and it is enough that no statute bars it. [Ganga
Bai v. Vijay Kumar AIR 1974 SC 1126]. The court cannot confer jurisdiction to itself, it is
only in the power of the legislature to decide the jurisdiction of the judiciary. Any decree
passed without jurisdiction is null in eyes of law. Consent to fix the jurisdiction of an
empowered court is valid.
Jurisdiction means the power or authority of a court of law to hear and determine a cause or
a matter. It is the power to entertain and decide a suit or civil proceeding.
In the case of Official Trustee v. Sachindra Nath AIR 1969 SC 823, the court held that a
court must not only have jurisdiction to try the suit brought but must also have the authority
to pass the order sought for. Jurisdiction must include power to hear and decide the question
at issue and decide the particular controversy that has arisen between the parties. if the court
cannot pass the relief prayed for, then the court do not possess the jurisdiction to adjudicate
the case.
Jurisdiction and consent: [A R Antulay v. R S Nayak AIR 1988 SC 1531], the power to
create and enlarge jurisdiction is legislative in character and so also the power to confer a
right of appeal or could take away the right of appeal. No court whether superior or inferior
or both combined can enlarge the jurisdiction of a court or divest a person of his rights of
revision and appeal.
Hirendra Nath v. Sudhir Verma AIR 1964 SC 1300: if the court has no inherent
jurisdiction neither acquiescence nor waiver nor estoppel can create it. Such a basic and
fundamental defeat cannot be cured by consent of parties or by the judgment or order passed
by a court. The decree so passed is null and void and can be challenged at any stage.
The court cannot create jurisdiction but can enlarge it. Interpretation of jurisdiction is allowed
but conferring jurisdiction on itself is not allowed.
Kiran singh v chaman Paswan AIR 1954 SC 340: it is a fundamental principle well
established that a decree passed by a court without jurisdiction is a nullity and that its
invalidity could be setup whenever and wherever it is sought to be enforced or relied upon.
Even at the stage of execution and even in collateral proceedings. A defect of jurisdiction
strikes at the very authority of the court to pass any decree and such a defect cannot be cured
by consent of parties.
Jurisdiction of a court is a public policy and passed by the parliament and therefore
individuals cannot decide the jurisdiction in their private capacity.
Lack of jurisdiction and irregular exercise of jurisdiction: there is always a distinction
between want of jurisdiction and irregular exercise of jurisdiction. Once it is held that a court
has the jurisdiction to decide a matter and to entertain it, the correctness of the decision given
cannot be said to be without jurisdiction in as much as the power to decide necessarily carries
with it the power to decide wrongly as well as rightly. [Ujjam Bai v. State of UP AIR 1962
SC 1621]. If a court has the jurisdiction but it is irregularly exercised and the defect does not
go to the root of the matter and the error if any in exercising the jurisdiction can be remedied
in appeal or revision and when there is no such remedy or is not availed of then the decision
is final.
Ittyavira Mathai v. Varkey AIR 1964 SC 907: the contention was that the decree passed by
the court is nullity as the suit was time barred and the court did not take into cognizance of
this fact so there was lack of jurisdiction. If the party aggrieved does not take appropriate
steps to have the error corrected, the erroneous decree will hold good and will not be open to
challenge on the basis of it being a nullity. It is regular exercise of jurisdiction and as no steps
were taken by the aggrieved party, no remedy available.
In the case of Anisminic Limited v. foreign compensation commission 1969 (1) All ER
208, the difference between these two terms is being assimilated.
M L Sethi v. R P Kapur 1972 2 SCC 427, after anisminic case, every error of law is a
jurisdictional error. The distinction between jurisdictional and non jurisdictional error is
based upon a foundation of sand. Much of the superstructure has already crumbled. What
remains is likely to quickly fall away as the courts rightly insist that all administrative actions
should be simply lawful whether or not jurisdictionally lawful.
Basis of deciding a jurisdiction: the court goes by the decision of the jurisdiction only on
the facts mentioned in the plaint. If the plaint is not clear, the court will see that if the written
statement contains any legal objection regarding the jurisdiction. It is a well settled principle
that for deciding the jurisdiction of the civil court, the averments made in the plaint are
material or the jurisdiction of the court should normally be decided on the basis of the case
put forward by the plaintiff in his plaint and not by the defendant in his written statement.
Abdullah bin Ali v. Galappa AIR 1985 SC 577, the supreme court observed that there is no
denying to the fact that the allegations made in the plaint decide the forum. The jurisdiction
does not depend upon the defence taken by the defendants in their written statements.
Bank of baroda v. motibai AIR 1985 SC 545: on the question of jurisdiction one must
always have regard to the substance of the matter and not to the form of the suit. The way in
which suit is brought is not relevant.
Section 9 of cpc: jurisdiction
Kinds of jurisdiction:

 Civil and criminal jurisdiction: ancient, civil deals with the private rights of the
individuals.
 Territorial or local jurisdiction: where is the particular court which hears the
particular type of matter. On the basis of limited geographical limit, certain courts
would be established who would entertain matters pertaining to that geographical
area. Every court has its own local or territorial limits beyond which it cannot exercise
its jurisdiction. These limits are fixed by the legislature or government. The district
has the authority to exercise the jurisdiction within a district, the high court has the
authority within the state where it is situated or any other territory vested to it by law.
A court has no jurisdiction to try a suit for immovable property situated beyond its
local limit.
 Pecuniary jurisdiction: cpc provides a court will have jurisdiction only over those
suits the amount of value of the subject matter of which does not exceed the pecuniary
limits of its jurisdiction. There are certain courts without any pecuniary limit and
other categories may have a pecuniary limit.
 Subject matter jurisdiction: prevalent form of jurisdiction: different courts have
been empowered to decide different types of suits. Certain courts are precluded from
entertaining a certain category of suits. For e.g. presidency courts have no jurisdiction
to try suits for specific performance because specific performance may not preclude
any specific Act.
 Original and appellate jurisdiction: original jurisdiction is the jurisdiction inherent
or conferred upon a court of first instance. Appellate jurisdiction is the power or
authority conferred upon a superior court to rehear by way of appeal of revision of
matters which have been tried and decided by the courts of original jurisdiction.
 Exclusive and concurrent jurisdiction: exclusive jurisdiction is that which confers
sole power on one court or tribunal to try and decide a case. Concurrent jurisdiction is
the jurisdiction which may be exercised by different courts or authorities between the
same parties at the same time over the same subject matter and the option is present to
a litigant to invoke jurisdiction of any such court.
 Legal and equitable jurisdiction: Legal jurisdiction is a jurisdiction exercised by the
common law courts in England while equitable jurisdiction is exercised by court of
equity. In india, the courts are of both law and equity.
Jurisdiction of a civil court:
Section 9, the courts shall have jurisdiction to try all the civil suits of the civil nature
excepting suits of which the cognizance is either expressly or impliedly barred.
Explanation 1: from the inception
Explanation 2: inserted through amendment in 1976.
The conditions of section 9: court have jurisdiction subject to two conditions:

 The suit must be of civil nature: it pertains to private rights and remedies of a citizen
as distinguished from criminal political or religious matter. Thus a suit is of civil
nature, if the principle question therein relates to the determination of a civil right and
enforcement thereof. Political and religious questions are not covered by this
expression. E.g. a suit which the principle question of a caste or religion is not of civil
nature but if the principle question is of civil nature and it incidentally carries the
question of caste and religious rights, it does not cease to be a suit of civil nature and
the jurisdiction of the civil court is not barred. [P M A Metropolitan v. Moran Mar
Marthoma AIR 1995 SC 2001]. In this case, it was held that the civil suits related to
the matter that the jurisdiction of a court is presumed if it entails within a question of
private right or obligation. No court can refuse to entertain such matters if the
cognizance is not barred. The section 9 would therefore be available in every case
where the dispute was of the characteristic of affecting one’s rights which are not only
civil but of civil nature. All the rights may be civil but not of civil nature.
Constitutional matter, political matter and religious matters are even civil matters but
not of civil nature as they are the elements of public policies.
 The cognizance must have been barred either expressly or impliedly
o Suits expressly barred: a suit is said to be expressly barred when it is barred by
any enactment for the time being in force. It is open to a competent legislature
to bar jurisdiction of civil court with respect to a particular class of suits of
civil nature provided that in doing so it keeps itself within the field of
legislation conferred on it and does not contravene any provision of the
constitution. [State of Vindhya Pradesh v. Moradhwaj Singh AIR 1960 SC
796]. This provision is also related to the concept of doctrine of separation of
powers. Every presumption should be made in favor of the jurisdiction of a
civil court and the provision of exclusion of jurisdiction must be strictly
construed. If there is any doubt about the ousting of jurisdiction of a civil
court, the court will lean to an interpretation which would maintain the
jurisdiction. [Dhula Bhai v. State of M P AIR 1969 SC 78 and Bharat kala
Bhandar Pvt. Ltd. v. Municipal Committee Dhaman Gaon AIR 1966 SC
249]. Further, if the remedy provided by the statute is not adequate and all
questions cannot be decided by the special tribunal, the jurisdiction of a civil
court is not said to be barred. [State of Tamil Nadu v. Ramlinga Samigal
AIR 1986 SC 794].
o Implied Bar: a suit is said to be impliedly barred when it is barred by general
principles of law. Where a specific remedy is there given by a statute, it
thereby deprives the person who insists upon a remedy of any other form than
that given by the statute. [Premier Automobiles v. Kamleker Shantaram
AIR 1975 SC 2238]. In this case, it was also held that where an act creates an
obligation or enforces its performance in a specified manner, that performance
cannot be enforced in any other manner. Certain suits, even if of being a civil
nature, the cognizance may be barred by the civil court on the basis of public
policy. [Indian Airlines Corp. v. Sukhdev rao AIR 1971 SC 1828]. The
civil courts has no jurisdiction to adjudicate or enlarge its mandate to take up
the relief sought of any other nature and thereby it acts as an implied bar over
such types of relief.
Suits of civil nature are

 Suits relating to the rights to property;

 Suits relating to taking out of religious procession;
 Suits relating to shares in offerings;
 Suit relating to specific performance of contract or damages for breach of contract;
 Suits for restitution of conjugal rights and dissolution of marriage;
 Suits relating to rights to franchise;
 Suits for rents;
 Suits for accounts.
Suits which are not of civil nature

 Suits involving principally caste questions;

 Suits involving purely religious rights and ceremonies;
 Suits for recovery of voluntary payments or offerings;
 Suits against expulsions from caste.
Objection as to exclusion of the jurisdiction of the civil court: a litigant having a grievance
of civil nature has independent of any statute a right to institute a suit in a civil court unless
its cognizance is either expressly or impliedly barred. The exclusion of jurisdiction of civil
court is not to be readily inferred and such exclusions have to be proved beyond reasonable
doubts in order to establish the objection as to jurisdiction. [Dhula Bhai v State of MP AIR
1969 SC 78].
1. Secretary of State v. Mask and co. AIR 1940 PC 105: it was held that it is settled law
that exclusion of jurisdiction of civil courts is not to be readily inferred but that such
exclusion must either be explicitly expressed or clearly implied. It is also well established
that even if such jurisdiciiton is so excluded, the civil courts will have jurisdiction to examine
into the cases where the provisions of the act have not been complied with or the statutory
tribunal has not acted in conformity with the fundamental principles of judicial procedure.
2. seth Radhakrishan v. Administrator Municipal Committee, Ludhiana AIR 1963 SC
1547: a suit in a civil court will always lay to question the order of a tribunal created by a
statute even if its order is expressly or by necessary implications made final, if the said
tribunal abuses its power or does not act under the Act, but in violation of its provision.
3. Dhula Bhai v. State of MP (justice hidaytullah):
Principles laid down as to the exclusion of the jurisdiction;

 Where a statute gives finality to orders of special tribunals, the civil court’s
jurisdiction must be held to be excluded if there is adequate remedy to do what the
civil courts would normally do in a suit. Such a provision however does not exclude
those cases where the provisions of a particular Act have not been complied with or
the statutory tribunal has not acted in conformity with the established principles of
judicial procedure.
 Where there is an express bar on the jurisdiction of the court, an examination of the
scheme of the Act to find out the adequacy or sufficiency of the remedies provided
may be relevant but this is not decisive for sustaining the jurisdiction of a civil court.
The reason being that where there is no express exclusion, the examination of the
 remedies and schemes of the particular act and the enquiry laid within to analyze so
may be decisive for the purpose of exclusive of jurisdiction.
 Challenges to the provisions of a particular Act as ultra vires cannot be brought before
tribunals constituted under that Act. Even the high court cannot go into that question
being brought in form of revision or reference against such tribunals.
 When a provision is already declared unconstitutional or the constitutionality of any
provision is to be challenged, a suit is always open. A writ of certiorari may include a
direction for refund of claims if the claim is clearly within the purview of the Act but
it is not a compulsory remedy to replace the suit.
 Where the particular Act contains no machinery for refund of tax collected in excess
of the constitutional limits or is illegally collected, a suit lies.
 Questions of correctness of an assessment cannot be brought through a civil suit if the
Act lays down them to be final and binding or there is an express prohibition under
the particular itself making such suits not maintainable.
 An exclusion of jurisdiction of civil court is not supposed to be readily inferred unless
the conditions above said are applicable to the case or a particular situation.
Another important case is premier Automobiles V. Kamleker Shantaram, it is related to
issue of industrial dispute and issue of conflict of jurisdiction with the civil court

 If a dispute is not an industrial dispute nor does it relates to enforcement of any

right, under the statute or any Act, then the remedy in the civil court.
 If a dispute is an industrial dispute, arising out of a right or liability under the
general or common law, and not under the Act , the jurisdiction of civil court is
alternative, leaving it to the selection of the suitor or person concerned to choose
his remedy for the relief which is competent to be granted in the particular
situation.
 If an industrial dispute relates to the enforcement of a right or an obligation
created under the Act, then the only remedy available to the suitor is to get
adjudication under the Act itself.
 If the right which is sought to be enforced is a right created under the Act such as
Chapter V-A then the remedy for its enforcement is either Section 33-C or the
raising of an industrial dispute, as the case may be.
Rsrtc v. krishna kant AIR 1995 SC 1715:

 Where a dispute arises from the general law of contract that is where releifs are
claimed on the claimed on the basis of obligations arising out of such contract may
not be said to be maintainable in the civil courts even if such disputes constitute
industrial dispute within the meaning of section 2(k) of IT Act.
 Where a dispute involves recognition or observance of any rights or obligations
created by the Act, the only remedy is to approach the adjudication forum established
under such Act.
 Where the dispute involves the recognition of rights and obligations of the sister
enactment to the major law enforced which may not provide a separate adjudication
forum for redressal of disputes, the only remedy shall be to approach the forums
created by the major laws, whether the major right is not sought to be enforced
through the major law.
 The power to make reference conferred upon the central government is to be
exercised to effectuate the object of the enactment and hence such discretion is not
 unguided. The purpose of this referential rule is to avoid totally frivolous cases on the
face of the record otherwise the power conferred to make a reference is not the power
to make a decision. Though it is observed that government is entitled to examine
whether a matter is frivolous not meriting adjudication.
 The policy going in consistence with the policy of law, the SC has observed that the
parliament should make an enabling provision to enable workman to approach labour
courts without the prior sanction of the government as this would go in a long way to
establish parity between civil courts and the labour courts.
 The policy of law emerging from the industrial Act and their sister enactmensts is to
provide alternative dispute resolution provision which is speedy, inexpensive,
informal and unencumbered by the plethora of procedural laws and at the same time
are far more extensive in the sense that they can grant any relief which they deem fit
and appropriate in a given situation in order to provide substantial justice.
In the further case of Chandrakant v. Municipal Corp of Ahmadabad 2002 2 SCC 542, it
was held that the power of industrial courts is wide enough and such forums are entitled to
grant adequate relief as they think just and appropriate. It is in the interest of the workman
that their disputes including the disputes of illegal termination are adjudicated upon by an
industrial forum.
Doctrine of res subjudice (Section 10): section 10 deal with the stay of civil suits. It
provides that no court shall proceed with the trial of any suit in which the matter in issue is
directly and substantially in issue with a previously instituted suit between the same parties
and that the court in which the previous suit is pending, is competent to grant the relief
claimed.
Doctrine of res judicata: Section 11 on the other hand related to a matter already
adjudicated upon. It bars the trial of a suit or an issue in which the matter directly and
substantially in issue has already been adjudicated upon in a previous suit.
Two pillars of doctrine of res subjudice

 The matter is directly and substantially in issue;

 The court in which the matter is previously challenged was a competent forum.
Scope of Section 10: the rule of section 10 applies to a trial of a suit and not the institution
thereof. It also does not preclude a court from passing interim order such as grant of
injunction, stay or appointment of receiver etc.
Object of section 10: the object of section 10 is to prevent courts of concurrent jurisdiction
from simultaneously entertaining and adjudicating upon two parallel litigations in respect of
the same cause of action, the same subject matter and the same relief sought. The policy of
law is to avoid two contradictory judgments or possibility of two contradictory judgments on
the same issue with same sort of relief in order to avoid the harassment of the parties and
avoid the conflict of decision from the courts. The doctrine of sub judice bars the trial of the
suit and not the institution thereof. If a judgment has been received by the court the
subsequent suit may be dismissed by this court in which it was it instituted may dismiss the
suit thereof. [National Institute of Medical Health and Neuroscience v. C parmeshawara
AIR 2005 SC 242]
Condition for application for section 10:
 There should be two suits one previously instituted and the latter subsequently
instituted.
 The matter in issue in the subsequent unit or subsequent suit must be directly and
substantially in issue in the previous suit.
 Both the suits must be between the same parties or between their representatives.
 The previously instituted suit must be pending in the same court in which the
subsequent suit is brought or in any other court in India or in any other court beyond
the limits of India but carried on by the authority of Central Government or they have
been before the Supreme Court of India.
 The court in which the previous suit is instituted must have the jurisdiction to grant
the relief claimed in the subsequent suit.
 Such parties must be litigating under the same title in both the suits.
The court is having the jurisdiction therefore institution is not barred, only the trial is barred
Section 10 does not take away the power of the court to examine the matters on merits. If the
court is satisfied that subsequent suits can be decided purely on a legal point, it is open to the
court to decide such suit. [Pukhraj D. Jain v. G Gopal Krishna AIR 2004 SC 3504].
Inherent power of the court [Section 151]
Even where the provision of section 10 of cpc do not strictly apply, a civil court has inherent
power under section 151 to stay the suit in order to achieve the ends of justice. A court has
inherent power to consolidate different suits between the same parties in which the matter in
issue is substantially the same. [P. V. Shetty v. B S Giridhar AIR 1982 SC 83.]
Effect of contravention of section 10
A decree passed in contravention of section 10 is not a nullity and therefore cannot be
disregarded in the execution proceedings. [Pukhraj D. Jain v. G Gopal Krishna AIR 2004
SC 3504] hence it the parties waive their right and expressly ask the court to proceed with the
subsequent suit, they cannot afterwards challenge the validity of the subsequent proceedings.
[Muni Lal v. Sarvajeet AIR 1984 Raj 22].
Doctrine of res judicata:
Constructive Res Judicata: the rule of direct res judicata is limited to matters directly or
actually in issue alleged by one party and denied or admitted directly or impliedly by the
another party. The rule of constructive res judicata as engrafted in explanation no. 4 or § 11
suggests that if a plea could have been taken by a party in a proceeding between him and his
opponent, he should not be permitted to take the same plea against the same party in a
subsequent proceeding with reference to the same subject matter. [State of UP v Nawab
Hussain AIR 1977 SC 1680]. This rule helps in raising the bar of res judicata and that is why
it is termed as constructive res judicata which in reality is an aspect or amplification of
general principles of res judicata. [Workman v. Board of Trustees, Cochin Port Trust,
AIR 1978 SC 1283]. It was held in this case that when any matter which might or ought to
have been made a ground of defense or attack in a former proceeding, but was not so made,
then such a matter in the eyes of law, to avoid multiplicity of litigation and to bring about
finality within it, is deemed to have been constructively in issue and therefore is taken as
decided.
Forward contruction company v. prabhat Mandal AIR 1986 SC 391: it was held that the
principle underlying explanation 4 is that where the parties have had an opportunity of
controverting a matter that should be taken to be the same thing as if the matter had been
actually controverted and decided. It is true that where a matter has been constructive in
issue, it cannot be said to have been actually heard and decided. It could only be deemed to
be heard and decided.
Devi lal modi v STO AIR 1965 SC 1150, CJI Gajendra Gadkar: the courts dealing with
the issue of infringement of the fundamental rights endeavor to bring all the matters in
question in order to comprehensively decide the situation in hand but it would not be right to
ignore the principles of res judicata all together in dealing with writ petitions filed by the
citizens contravening the violation of their fundamental rights. The consideration of public
policy cannot be ignored while dealing with the issues of fundamental rights. If such a course
is allowed to be adopted where the matters of fundamental rights violation are kept beyond
the public policy of res judicata, the doctrine of finality of judgments by this court would also
be materially affected.
Matters which are collaterally or incidentally in issue:
isher Singh v sarvan singh, AIR 1965 SC 948: a matter is collaterally and incidentally in
issue if it is necessary to decide it in order to grant relief to a plaintiff or to a defendant and
the decision on such issue either way does not affect the final judgment of the court.
Res judicata between co-defendants: as a matter of fact res judicata applies between
plaintiff and defendant as well as co-plaintiff and co-defendants. Adjudication will operate as
res judicata between co-defendants if the following conditions are satisfied:

 There must be a conflict of interest between the co-defendants;

 It must be necessary to decide that conflict in order to give relief to the plaintiff;
 The question between co-defendants must have been finally decided;
 The co-defendants were necessary or proper parties in the former suit.
If these conditions are satisfied, the adjudication will operate as res judicata between the co-
defendants. [Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332].
Res judicata between co-plaintiffs: if there is a conflict of interest between the plaintiffs
and it is necessary to resolve the same by a court in order to give the relief to a defendant and
the matter is in fact decided, it will operate as res judicata between the co-plaintiffs in the
subsequent suits. [Iftkaar Ahmed v Sayyed Maherban Ali AIR 1974 SC 749]
Proforma Defendant: a defendant to a suit against whom no relief is claimed is called a
proforma defendant. A person may be added as a proforma defendant in a suit merely
because his presence is necessary for a complete and final decision of questions involved in a
suit. Since no relief is sought against him, a finding of the court does not operate as res
judicata for the matter of subsequent suit. [Rahim Bhoy v. Charles Agnew Turner, ILR
1893 (17) Bom 341].

FOREIGN JUDGMENT [SECTION 13 AND 14 OF CPC]

Section 13 and 14 of CPC enact a rule of res judicata in case of foreign judgment which
embodies the principles of private international law that a judgment delivered by a foreign
court of competent jurisdiction can be enforced by an Indian court and will operate as res
judicata between the parties thereto subject to the conditions specified under section 13.
The provisions mentioned under section 13 are not confined in its application only to
plaintiffs but equally entitle a defendant to non- suit the plaintiff on the basis of a foreign
judgment. [Badat Trading Company v. East Indian Trading Company, AIR 1964 SC
538].
Object: the judgment of a foreign court is enforced on the principles that a court of competent
jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim. The
rules of private international law of each state may differ but through the comity of nations
certain rules are recognized as common to different civilized jurisdictions. Thus as a part of
judicial system of each state, these common rules have been adopted in order to effectuate the
judgments of foreign courts in certain matters through their own mutual recognition or
through certain international convention. [Narsimha Roa v. Venkata Lakshi (1991) 3 SCC
451].
Comity of nations e.g.: common law judgments
Principle of reciprocity: a process of mutual recognition where one country have reciprocated
in recognizing the judgment of one country and it casts the obligation on the other country to
reciprocate the judgment of such other country. Here, one individual nation may recognize
other individual nation or group of nations.
Binding nature of such foreign judgments: A foreign judgment shall be conclusive to any
matter thereby directly adjudicated upon between the same parties or between the parties
under whom they or any of them is litigating subject to the conditions mentioned under
Section 13 (a) – (f). [Satya v. Teja Singh 1975 (1) SCC 120]

Foreign judgments not passed by a court of competent nature: the principle of

competency is similar to our own judicial system. We would check if the court
passing the judgment has the competent jurisdiction relating to any aspect. It is a
fundamental principle of law that a judgment or order passed by which have no
jurisdiction is deemed to be null and void. Thus a judgment passed by a foreign court
must be pronounced by a court of competent jurisdiction [R Vishswanthan vs.
Rukn-un-Mulk Syid Abdul AIR 1963 SC 1] and such a competency may be through
both by the law of the state which establish it and in an international scenario it must
be directly adjudicated upon the matter which is pleaded as res judicata. In the case of
Gurdayal Singh v. Raja of Faridkote.
 Foreign judgments not on merits: In order to operate as res judicata, a foreign
judgment must have been given on the merits of the case. A judgment is said to be
given on merits when after taking evidences and applying his mind regarding the truth
or falsity of the plaintiff’s case the judge decides the case one way or the other. Thus,
when a suit is dismissed on default of appearance of the plaintiff or for non
production of document, even before filing of the written statement are not deemed on
merits. [international woolen mills vs standard wool UK ltd. AIR 2001 SC 2134]
 That the foreign judgment should not be against international or Indian law: a
judgment based upon an incorrect view of international law or refusal to recognize the
law of India, where such law applicable is not conclusive, but the mistake present
must be apparent on the face of the proceedings. [R Vishwanathan v. Rukn-ul-mulk
Syid Abdul].
Therefore, a foreign judgment which is found on jurisdiction or on a ground not recognized
by Indian law or goes in contravention of international law, such judgment is deemed to be in
defiance of the law. Hence it is not conclusive on the matters adjudicated therein and
therefore becomes unenforceable in our country. [Narsimha Rao v. Venkata Laxmi].
 Foreign judgment going against the principles of natural justice: it is the essence of
the judgment of a court that it must be obtained after due observance of the judicial
process i.e. the court rendering the judgment must observe the minimum
requirements of principles of natural justice (which may be that the process must be
composed of impartial persons, fair action without bias, presence of good faith,
reasonable notice to the parties from the court and affording each party adequate
opportunity for presenting his case). a judgment which is the result of bias or
elements of mala fide intention are present on part of the judge, then the entire
judgment is deemed to be nullity and the trial becomes Corum non judice.142
142
Gurdayal Singh v Raja of Faridkot; Vishwanathan v sayid abdul.
  Foreign judgment obtained by fraud: it is a well established principle of private
international law that if a foreign judgment is obtained by fraud it will not operate as
res judicata. Fraud and justice can never dwell together or fraud and deceit ought to
benefit none. Fraus et jus nunaqum cohabitant.143 Additionally, it was also held that
fraud may be defined as an act of deliberate deception with the design of securing
some unfair or underserved benefits by taking undue advantage of another. In fraud
one gains at the cost of other. Fraud is thus an extrinsic collateral act which vitiates
all judicial acts whether in rem or in personum. The principle of finality of litigation
cannot be stretched to the extent of an absurdity that it can be utilized as an engine of
oppression by dishonest or fraudulent litigants.
 The foreign judgment should be in contravention of Indian Law: even if the
principles of private international law allow such foreign judgments, but those
principles goes in contravention of the Indian law, such judgments cannot be
followed in India.
Section 14
Presumption as to foreign judgments: section 14 declares that the court shall presume upon
the production of any document purporting to be a certified copy of the foreign judgment and
that such judgment was pronounced by a competent court unless the contrary is proven on
record.
But SC has held that mere production of the photostate copy of a decree of a foreign court is
not sufficient. It is required to be certified by a representative of a central government or the
judicial officer of the country.144

143
A B Papayya Shastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
144
Narsimha Rao v Venkata Lakshi.
 PLACE OF SUING
Suits may be of different types based upon contracts, torts, movable property, immovable
property etc. The jurisdiction of the court to entertain, deal with and decide a suit may be
restricted by a variety of circumstances, including the decision of place of suing. Section 15
to 20 regulates the forum for the institution of suits.
Scheme: section 15 requires the plaintiff to file a suit in the court of the lowest grade
competent to try it. Section 16 to 18 deals with suits relating to immovable property. Section
19 applies to suits for compensation for wrong to person or to immovable property. Section20
is a residuary section and deals with power of civil court in relation to suit which has not been
covered from section 15 to section 19.
Pecuniary jurisdiction: every suit shall be instituted in the court of the lowest grade
competent to try it.
Nature and scope: section 15 of the Code refers to the pecuniary jurisdiction of the court.
The rule laid down in the section is a rule of procedure and does not affect the jurisdiction of
the court. Hence, a decree passed by a court of a higher grade cannot be said to be without
jurisdiction.145 It is merely an irregularity covered by Section 99 of the Code and the decree
passed by the Court is not a nullity.146
Object:

 To see that the courts of higher grade shall not be overburdened with the suits
 To afford convenience to the parties and witnesses who may be examined in such suit.
Mode of valuation:
Prima facie it is the plaintiff’s valuation in the plaint that determines the jurisdiction of the
court and not the amount for which ultimately the decree may be passed.147 The valuation of
the suit which is low at the time of institution may not act as an impediment on the powers of
the court to grant greater damages.
Powers and duties of the court in such valuations:

 If the plaintiff deliberately undervalues or overvalues the claim for the purpose of
choosing the forum, the plaint cannot be said to be correctly valued and it is the duty
of the court in such circumstances to return the plaint to be filed in proper court.
 But if the court is unable to come to a finding regarding the correct valuation of the
subject matter, the court has to accept the valuation computed on behalf of the
plaintiff.148
Territorial jurisdiction:

 Types of suit: for the purpose of territorial jurisdiction of the courts, suits may be
divided into four categories:
o Suits in respect of Immoveable property (Sec 16-18): clauses (a) to (e) of
section 16 deals with suits for immovable property under 5 categories:
145
Gopal v Shamrao, AIR 1941 Nag 21.
146
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.
147
Kiran Singh v. Champan Paswan,
148
Tara Devi v. Shir Thakur Radha Krishna Maharaj, AIR 1987 SC 2085.
  Suits for recovery of immovable property;
 Suits for partition of immovable property;
 Suits for foreclosure (in relation to mortgage);
 Sale or redemption in the context of mortgage or any other charge;
 Suits for determination of any other right or interest in immovable
property;
 Suits for torts committed against immovable property.
These suits must be filed in the courts within the local limits of whose jurisdiction the
property is situated. section 17 is called contingency provision which says that where a suit is
to obtain a relief in relation to a damage in torts to the immovable property situated within the
jurisdiction of different courts, such suit may be filed in the court within the local limits of
whose jurisdiction any portion of the property is situated provided that it does not breach the
pecuniary jurisdiction of such court.
o Movable property (19)
 A suit for wrong to movable property may be brought at the option of
the plaintiff either at the place where the wrong is committed or where
the defendant resides, carries on business or personally works for
gain.
 Where such wrong consist of a series of acts, a suit can be filed at any
place where any of the acts has been committed similarly where a
wrongful act is committed at one place and the consequence ensue at
another place, a suit can be instituted at the option of the plaintiff
where the cause of action has arisen or the consequences has ensue.
o Suits for compensation for wrong committed (torts) (19)
 A suit for compensation for wrong or a tort to a person may be
instituted at the option of the plaintiff either where such wrong is
committed or where the defendant resides or where he carries on
business.
o Other types of suits (residuary suits) (20): It provides for all the suits which
have not been covered through sec 16 to 19. All such suits may be filed at the
option of the plaintiff in the following manner:
 Where the cause of action wholly or partly arises;
 Where the defendant resides or carries on business or personally
works for gain;
 Where there are two or more defendants, any of them resides or
carries on business may be added to the suit and the plaintiff may at
his option
 Either through the leave of the court; or
 Through the defendants who do not reside at that place, may
acquiesce in such institution.
Forum shopping: it is a well settled principle of law that consent can neither confer nor can
take away the jurisdiction of a competent court and the same principle is applicable while
oustering the jurisdiction of the court and by no means of consent, waiver, or estoppel can
stop the jurisdiction of the competent court. But where two or more courts have jurisdiction
to entertain a suit, an agreement by the parties to submit to the jurisdiction of one of such
courts to the exclusion of other courts is valid, binding and enforceable.149

ESSENTIALS OF THE SUIT

There are four essentials of a suit:

 Opposing parties to a suit;

 Subject matter in dispute;
 Cause of action; and
 Relief sought.
Parties to the suit (Order 1): order I deals with the parities to a suit. It also contains
provisions for addition, deletion and substitution of parities through joinder, misjoinder and
non-joinder of parties.
Joinder of parties: the question of joinder of parties may arise either as regards to the plaintiff
or as regards to the defendants. An act may be done by a single individual and may affect
another individual. The question of joinder of parties arises only when an act is done by two
or more persons or it affects two or more persons.
Joinder of plaintiffs (rule 1): it states that all persons may be joined in one suit as plaintiffs in
the fulfillment of the following two conditions:

 The right to relief alleged to exist in each plaintiff arises out of the same act or
transaction; and
 The case is of such a character that, if such persons brought separate suits, any
common questions of law or fact would arise.150
The word ‘and’ between clauses (a) and (b) makes it clear that both the above conditions
should be fulfilled which means that they are cumulative and not alternative.
Joinder of defendants (rule 3): it states that all persons may be joined in one suit as
defendants if the following two conditions are satisfied:

 The right to relief alleged to exist against them arises out of the same act or
transaction, and
 The case is of such a character that, if separate suits were brought against such
persons, any common question of law or fact would arise.
The underlining object of rule 3 is to avoid multiplicity of suits and needless expenses.151
Necessary party: it is one whose presence is indispensible to the constitution of the suit,
against whom the relief is sought and without whom no effective order can be passed.
A proper party is one in whose absence an effective order can be passed but whose presence
is necessary for complete and final decision on the question involved in the proceedings. 152
149
Union of India v. Oswal Woolen Mills Ltd., AIR 1984 SC 1264; Morgan Stanly Mutual Fund v. Kartik Das,
(1994) 4 SCC 225; ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711.
150
Krishna Laxman v. Narshinghrao Vithalrao, AIR 1973 Bom 358.
151
Ishwar Bhai v Harihar Behera, (1993) 3 SCC 457.
152
Kasturi vs. Iyyam Perumal, AIR 2005 SC 2183.
This case also lays down two tests for determining the question whether a particular party is a
necessary party is necessary party to a proceeding: 1. There must be a right to some relief in
respect of the question involved in the proceedings; 2. It should not be possible to pass an
effective decree in absence of such a party.
If there is a dispute or a cause of action between certain persons, all of such persons becomes
necessary parties.
Non Joinder and misjoinder of parties [Rule 9]: where a person who is a necessary party or a
proper party to a suit has not been joined as a party to the suit, it will become the case of non
joinder. On the other hand, if two or more persons are joined as plaintiffs and defendants in
one suit, in contravention of rule 1 and rule 3 of order 1, and they are neither necessary or
proper parties, then it will become the case of misjoinder of parties.
The general rule is that a suit cannot be dismissed only on the ground of non joinder or
misjoinder of parties nor a decree passed by a competent court on merits will be set aside on
the ground of misdescription of the defendant. However, this rule does not apply in case of
non joinder of a necessary party.153
Objections as to non joinder or misjoinder of the parties: rule 13, order 1: all the objections
on the ground of non joinder or misjoinder of parties must be taken at the earliest possible
opportunities. Otherwise they will be deemed to have been waived, but if the objection as to
non joinder has been taken by the defendant at the earliest stage and the plaintiff declines to
add the necessary parties, he cannot be subsequently allowed in appeal to rectify the error in
appeal by applying for amendments.154
Adding or substituting or striking out parties Rule 10 Order 1: Rule 10(1): if after the
filing of the suit, the plaintiff discovers that he cannot get the relief, he seeks without joining
some other person as a plaintiff and also where it is found that some other person and not the
original plaintiff is entitled to the relief an application for addition or substitution of the
plaintiffs can be made. To bring a case under this rule, three conditions must be satisfied:

 The suit has been filed in the name of a wrong person as a plaintiff;
 Such mistake must be bonafide; and
 The substitution or addition of the plaintiff is necessary for determination of the real
matter in dispute.155
Object of this rule: to save honest litigants or plaintiffs believing in bona fide maintainability
of their claims being non-suited on a mere technical ground. The policy is to decide the real
question in controversy between the parties bypassing the mere technical objections for
defeating a just and honest claim by discouraging the contest purely on technicalities.156
Striking out or adding the parties, Rule 10 (2): this rule empowers the court to add any
person as party to the suit on any of the two grounds alternatively:

 Such person ought to have been joined as a plaintiff or as a defendant or is not so

joined; or

153
Diwakar Srivastav v. State of MP, AIR 1984 SC 468.
154
Naba Kumar v. Radha Kumar, AIR 1931 PC 229.
155
Raziya Begum vs Sahebjadi Amwar Begum.
156
Anil Kumar v. Shiv Nath, (1995) 3 SCC 147.
  Without his presence the question involved in the suit cannot be completely heard or
decided.157
This provision confers a wider discretion on the court to meet with every case of defect of
parties and is not affected by the inaction of the plaintiff to bring the necessary parties on the
record. Adding of parties is a judicial discretion and has to be exercised judiciously.158
For exercising the powers under Rule 10(2), the court has to base its decision on sound
judicial principles keeping in mind all the facts and circumstances of the case. The two
considerations which the court should follow while exercising such powers are:

 The plaintiff is dominus litis in the case, which means he is the best judge of his real
interest in the case and normally the court should not compel him to fight against a
person whom he does not want to fight;
 If the court is satisfied that the presence of a particular person is necessary to
effectively and completely adjudicate all the disputes between the parties irrespective
of the wishes of the plaintiff the court may exercise the power and join a person as
party to the suit.159
Raziya Begum vs Sahebjadi Amwar Begum: SC has laid down few principles regarding
the powers of the court to add on the parties to the suit under rule 10(2):

 The question of addition of parties under rule 10 of order 1 is generally not of initial
jurisdiction of the court but is a question of judicial discretion (this is not the way of
assuming jurisdiction) which has to be exercised in view of all the facts and
circumstances of the particular case but may raise controversies in determining the
powers of the court;
 In a suit relating to a property, a person may be added as a party if he has a direct
interest in the subject matter as distinguished from a commercial interest;
 Where the subject matter of litigation is declaration as regard to the status or legal
character, the rule of direct interest may be relaxed in a suitable case where the court
is of the opinion that by adding the party it would be in a better position effectually
and completely to adjudicate upon the controversy.
In 2nd point, it was a suit for ownership and granting the possession of the immovable
property, in the 3rd point, it is only a suit for declaration and therefore commercial interest can
be included. Suits under 3rd point is not for the rights over the property, its only for getting a
declaration.

 The rule of exercising the discretionary power should be exercised cautiously in the
cases of section 42 and 43 of the specific relief act.
REPRESENTATIVE SUIT [ORDER 1, RULE 8]
Rule 8 is an exception to the general principle of civil litigation where it provides that when
there are number of parties similarly interested in the suit, one or more of them, can with the

157
Raziya Begum vs Sahebjadi Amwar Begum; Anil Kumar v. Shiv Nath, (1995) 3 SCC 147.
158
Ramesh Hirachand vs. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524.
159
Ramesh Hirachand vs. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524; Raziya Begum vs
Sahebjadi Amwar Begum.
permission of the court, or upon the directions from the court, may sue or be sued on behalf
of themselves and others.160
A representative suit is filed by or against one or more persons on behalf of themselves and
others having the same interest in the suit. Either the parties are affected by the same cause of
action or are similarly affected by the acts of other parties.
Class Action Suit: used in the US jurisdiction.
Difference between class action suit and representative suit??
Object of representative suit: to facilitate the decisions involving large number of persons
who are similarly interested without recoursing to the ordinary procedure of CPC. This helps
in saving time and expenses and ensures a single comprehensive trial of all the questions
involving such numerous persons and avoiding the harassment of parties through multiplicity
of suits.161
The representative suit is an enabling provision, which allows one to use this provision, but it
is not mandatory to get a suit represented. Order 1 Rule 8 is an enabling provision, it neither
compels an individual to represent a body of persons having the same interest not it debars a
member of the community from maintaining a suit in his own right in respect of a wrong
done to him.162
Conditions to be fulfilled to make a suit representative

 The parties must be numerous, it is not required that the number of persons should be
clearly certain nor it amounts to the fact that numerous will represent innumerable.
Therefore the only question is that the criterion of numerous shall be decided by the
court based upon the facts of each case while taking into account the nature of
controversy and subject matter in dispute;163
 They must have same interest in the suit: the term same interest means that an interest
must be common to all of them or they must have a common grievance against which
they want to seek redressal. Therefore, a community of the interest is essential and
acts as condition precedent for bringing a representative suit.164
 The permission must have been granted or directions must have been given by the
court; and
 Notice must have been issued to the parties whom it is proposed to represent in the
suit.
Frame of the Suit (Order 2):
Every suit must include the whole of plaintiff’s claim in respect of cause of action so that as
far as practicable that all matters in dispute between the parties shall be disposed off finally.
It is the duty of the court to see whether it was practicable on part of the plaintiff to include
the entire claim which he had either omitted or intentionally relinquished. [Order 2, Rule 1]

160
Diwakar Srivastav vs. State of MP.
161
Kodia Gounder vs. Velandi Gaunder, AIR 1955 Mad 281.
162
T. N. housing Board v. T. N. Ganapathy, AIR 1990 SC 642.
163
Hasan Ali v. Mansur Ali, AIR 1948 PC 66.
164
Kodia Gounder vs. Velandi Gaunder, AIR 1955 Mad 281; T. N. housing Board v. T. N. Ganapathy, AIR
1990 SC 642.
Under Order 2, Rule 2, if a plaintiff fails to bring the cause of action or he has omitted or
intentionally relinquished a portion of the claim then he shall not be allowed afterwards for
invoking the portion so omitted or relinquished. The object of this rule is to protect the
defendant from being vexed twice for the same cause, it is a counter willing measure against
two types of malpractices being practiced in the court which are:

 Splitting up of claims;
 Splitting up of remedies165
It was held in these cases that the rule 2 of order 2 provides that a suit must include the whole
of the claim which the plaintiff is entitled to make in respect of the cause of action on which
he sues and if he omits to sue for any relief to which his cause of action would have entitled
him, he cannot claim it through a subsequent suit as the object of this statutory rule is to
prevent multiplicity of suits.
in the case of Deva Kumar vs Ishwar Chand, 1995 6 SCC 733, it was held that Order 2 Rule 2
is based a cardinal principle that a defendant should not be vexed twice for the same cause.
Order 2 rule 2 and res judicata
The provision of order 2 rule 2 are penal in nature and therefore should be construed strictly.
This provision is highly technical and deprives a party to a legitimate right which was
otherwise available to him. Hence the plea of res judicata in context of order 2 rule should not
be highly upheld and such plea should be raised at the earliest opportunity.166
Conditions of application of order 2 rule 2167

 The second suit which is brought must be in respect of same cause of action as that on
which the previous suit was based;
 In respect of that cause of action, the plaintiff was entitled to more than one relief;
 Being thus entitled to more than one relief the plaintiff without the leave of the court
omitted to sue for the relief for which the second suit has been filed.
Tests laid down in Mohammed Khalil vs. Mahboob Ali, AIR 1949 PC 78.

 The correct test of the cases falling under Order 2 Rule 2 is whether the claim in the
new suit is in fact founded upon a cause of action distinct from that which was the
foundation of the former suit.
 The cause of action means every fact which will be necessary for the plaintiff to prove
if traversed in order to support his right to judgment.
 If the evidence to support the two claims is different then the causes of action are also
deemed to be different.
 The casues of action in the two suit, may be considered to be the same if in substance
they are identical and merely the language of presentation is different.
 The cause of action has no relation whatsoever to the defence that may be set up by
the defendant nor does it depend upon the character of the relief prayed for by the
plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a
conclusion in his favor.

165
Naba Kumar vs. Radha Shyam, AIR 1931 PC 239; Mohammed Khalil vs. Mahboob Ali, AIR 1949 PC 78.
166
Gurubux Singh v Bura Lal, AIR 1964 SC 1810.
167
Ibid.
Order 2 Rules 4 and 5: Joinder of Claims
Rule 4 lays down that in the suit for recovery of immovable of immovable property, a
plaintiff is not entitled to join any claim without the leave of the court except:

 Claims for mesne profits;

 Arrears of rent in respect of the property claimed or any part thereof.
 Claims for damages for breach of contract under which the property or ant part
thereof is held.
 Claims in which the relief sought is based on the same cause of action in the
ongoing suit.
Rule 5, which deals with the suit by or against three classes of persons, i.e. executors,
administrators and legal heirs. It provides that no claim by or against such persons in their
representative capacity shall be joined with the claims by or against them personally in the
same suit except:

 Where the personal arise with reference to the estate he represents;

 Where he was entitled to or liable for those claims jointly with the deceased whom he
represent.
The main object of this rule is to prevent a representative from inter mingling the assets of his
testator with his own estates.
Order 4: institution of the suit

 Order 4 rule 1 read with section 26 talks about presentation of plaint. It lays down that
every suit must be instituted by the presentation of the plaint in duplicate or in any
other manner as prescribed by the court by the plaintiff himself or by his advocate or
through his recognized agent.
 A plaint must be presented to the court or any such officer as is appointed in that
behalf. The presentation of the plaint takes place in the general working days during
the working hours.
 Every plaint must contain necessary particulars like the name of the court, the title,
the cause of action, and the relief sought etc.
 Particulars of every such suit will have to be entered in the registers of the civil suits
as maintained by each court.
 If a suit is instituted by an indigent (whose property is valued below or equal to rs.
1000) person or on behalf of minor or on behalf of dead person, then a statement
giving the effect to the same must be included in the plaint.
Civil Pleading (Order 6)
Order 6, Rule 1: pleadings include both plaint and written statement, in other words,
pleadings are the statements in writing drawn up and filed by each party to a case stating
what his contentions will be at the trial and giving all such details as his opponent needs to
know in order to prepare his case in answer.
Objects of the Pleadings: the whole object is to bring parties to definite issues and to
diminish and delay the expenses and to prevent surprises at the stage of hearing. It helps in
ascertaining the real disputes between the parties, thereby narrowing down the area of
conflict and precluding one party from taking the other by surprise so as to prevent
miscarriage of justice.168
In Ganesh Trading Company vs Moji Ram,169 it was held that pleadings in civil cases are
meant to give each side intimation of the case of the other so that it may enable the court to
determine the real issue at hand between the parties.
In Virendra Kashinath vs. Vinayak Joshi,170 it was held that the object of pleadings is two
folds:

 To afford the other side intimation regarding the particular facts of his case so that
they may be met by the other side;
 To enable the court in deciding the actual dispute or controversy emerging out of the
factual proposition.
Basic Rule for Pleadings (Order 6, Rule 2):

 Sub Rule 1, Rule 2: every pleading shall contain and contain only a statement in a
concise form of the material facts on which the party pleading relies for his claim or
defence, as the case may be, but not the evidence by which they are to be proved.
Additionally, no law is even pleaded.
 General principles governing pleadings:
o Pleadings should state facts and not law
 Kedar Lal vs Hari Lal and Ram Prasad vs State of M.P.: The
construction of pleadings can be summarized as “plead facts and not
law, which is based on a principle that a judge if bound to apply the
correct law even if incorrect law if pleaded by a party, however, a
mixed question of fact and law should be specifically raised or
pleaded. For e.g. the existence of a custom or usage or establishing the
intention of a party is termed as question of facts.”
o The facts above stated must be material facts (those bundle of facts which the
parties has to prove to establish one’s case and which gives right to the relief
or acts as valid shield and defence). Additionally, other facts which help in
establishing such important facts are even included;
 Udhaw Singh vs. Madhav Rao Scindia:
 Virendra lal vs. stapal singh: all the primary facts which are to be
proved at the trial by a party to establish the existence of a cause of
action or his defence is termed as material facts. It is absolutely
essential that all the basic and primary are pleaded and established by
the party beyond reasonable doubt, however there exists a differnce
between material facts and particulars where non supply of material
facts may entail the dismissal of the suit but non supply of essential
particulars may not lead to the same consequence as material facts are
essential to be proved and material particulars may be refined or
amended even during the stage of pleadings.
o Pleadings should not state the evidences (annexure can be included just to
substantiate the claim)

168
Dhrob vs. Holdsworth.
169
AIR 1978 SC 484.
170
AIR 1999 SC 162.
  R M Shashadri vs. G BaSant Pai: the pleadings should contain a
statement of material facts which the party relies but not the evidences
through which those facts are to be proved. There are two types of
facts:
 Facta probanda: the facts required t o be proved (material facts)
 Facta probantia: the facts by means of which material facts are
proved (particulars or evidences).
o The facts stated in the pleadings should be in concise form
 Charan lal Sahu vs. Gyani Zail Singh: all the material facts must be
stated in summary form according to the nature of the case. Immaterial
averments and unnecessary details must be omitted and material
allegations and necessary particulars must be included. if due care is
taken through systematic process pleadings can be saved from
tautology.
 Other rules of pleadings:
o Where misrepresentation, fraud or breach of trust or undue influence are
pleaded in the pleadings, then particulars with dates and time should be stated
specifically.
 Dishnu dev v. sarogani rai: in the cases of fraud, undue influence or
coercion, the parties pleading it must set forth full particulars and the
case can only be decided on the basis of the particulars as laid down in
the court.
o The object of the pleading is to narrow the controversies so as to decide the
issues with precision so as to give proper notice and including all the essential
particulars within the notice itself to be submitted to either parties of the case.
Therefore, the particulars stated in the pleadings should be sufficient and
specific and the court should specifically insist upon the particulars before
proceeding with the trial of the suit.
o The performance of condition precedent need not be pleaded as it is already
implied in the pleadings. Non performance of the condition precedent however
must be specifically pleaded and included by the parties.
o Departure from the pleadings is to permissible and except by way of
amendment, no party can raise any ground of claim or any allegation of fact
inconsistent with previous pleadings.
o A bare denial of contract by the opposite party will be construed only as a
denial of factum of contract and not the legality or enforceability of the
contract.
 Kalyanpur Lime Works ltd. v. State of Bihar AIR 1954 SC 165:
o Documents need not be set out at length in the pleadings unless they are
deemed material.
o Whenever giving of notice to any person is necessary or a condition precedent,
pleadings should only state regarding giving of such notice without setting out
the form or precise terms or such notice or the circumstances from which it is
to be inferred unless they are material.
o Implied contracts or relations between persons may be alleged as a fact and
the series of letters conversations and the circumstances from which they are
to be inferred should be pleaded generally.
o Facts which the law presumes in favor of a party or as to which the burden of
proof lies upon the other side need not be pleaded.
 o Every pleading has to be signed by the party or by one of the parties or his
pleaders.
o Pleadings should supply the detailed address of the parties contending as well
as the address of the opposing parties.
o Every pleadings should be verified on affidavit by the party or one of the
parties or by a person acquainted with the facts of such facts.
o Every pleading must be divided into paragraphs numbered consecutively and
each new averment or allegation or defence should be stated in separate
paragraphs and any date or amount has to be stated in both figures as well as
words.
Alternative pleadings: it conveys a choice on behalf of a party to a litigation and may include
in his pleadings two or more facts or claims or reliefs which may act as an alternative to the
previous relief.
Inconsistent pleadings: it means mutually repugnant, contradictory and destructive or
reconcilable pleadings due to which both the previous or present pleading may not stand in
the court of law because acceptance of one pleading necessarily implies abrogation or
abandonment of the other set of pleadings.
The main object of allowing alternate pleading in one litigation is to obviate the necessity of
another litigation and to decide the controversy in one litigation comprehensively and the
code of civil procedure supports the alternative set of pleadings.171
How to construct pleadings: strict and specific; it is uniformly stated or held by the Courts
that pleadings in India should be construed strictly in relation to the actual relief sought under
the statute but should not be construed strictly in relation to the form of pleadings thereof and
for the same it may be interpreted liberally. In Madan Gopal vs. mani Ram, AIR 1976 SC
461, where it was held that the pleadings in India are loosely drafted in the courts and the
courts should not scrutinize the pleadings with such meticulous care so as to debar the
genuine claims on trivial or technical claims. In Ram Swaroop vs Bishnu Narayan Inter
college, it was held that pleadings should receive a liberal contruction so as to facilitate the
cause of justice and pedantic (narrow and technical) approach should not be adopted to defeat
the justice on hair splitting technicalities. It is not desirable to place higher emphasis on form
but substance should be looked into specifically.
Striking out pleadings (Rule 16, Order 6): the court is empowered to strike out any pleading
if it is unnecessary, scandalous, frivolous or vexatious or tends to prejudice or embarrass or
delay the fair trial of the suit or is otherwise deemed as an abuse of the process of the court.
In vijay kumar vs tota singh, 2006 (13) SCC 353, the conditions where court could use rule
16 were laid down:

 Where such pleading is unnecessary, scandalous, frivolous;

 Where such pleading tends to prejudice or embarrass or delay the failr trial of the suit
 Where such pleading is otherwise deemed as an abuse of the court proceedings.
The power to strike down pleadings is extraordinary in nature and must be exercised by the
court with extreme care, caution and circumspection.
Rule 14-15, Order 6: signature and verification of pleadings

171
Arundhati Mishra vs. Ram Charitra Panday, 1994 (2) SCC 29.
As a general rule, every pleading must be signed by the party or by one of the parties or by
his pleader. But if the party is unable to sign the pleadings, it can be signed by any person so
authorized by him. The verification must be signed on an affidavit by the person verifying
and must contain the date on which and the place at which it was signed. The person
verifying the pleading should also furnish an affidavit in support of his pleadings. It is a well
settled principle that a party can be permitted to adduce evidence on the basis of the case
pleaded by him in his pleading and he cannot setup a case inconsistent with his own
pleadings. The purpose for such rule is two folds:

 To appraise the opposite party distinctly and specifically of the case he is called upon
to answer so that he may property prepare his defence and may not be taken by
surprise;
 To maintain an accurate record of the cause of action as a protection against second or
subsequent proceeding founded upon the same question of law.172
An objection to pleading should be taken at the earliest. If at an appropriate stage such an
objection is not raised, it is deemed to have been waived as it is based on the principle that in
such cases it cannot be held that a prejudice has been caused to the party by raising a plead at
a belated stage.
Amendment of pleadings [rule 17-18]: as a general rule material facts and necessary
particulars must be stated in the pleadings and the decision of the court cannot be based on
the grounds outside the pleadings but if the party comes up with a fresh information in order
to deliberate the real controversy at hand, it necessitates the reshaping of claims and defence.
The object of the rule is that the court should try the merits of the case that comes before
them and should consequently allow all amendments that may be necessary for determining
the real question in controversy between the parties provided it does not cause injustice,
prejudice to the other side. The court while doing complete justice may allow such
amendment applications in the larger interest of the parties for meeting the relevant criterions
of litigation.
Rule 17 confers a wider discretion on the court to allow either party to amend his pleading at
any stage of the proceeding on such terms as it may deem fit. Such discretion however should
be exercised judicially and inconsonance with well established principles of law. The
provision of rule 17 is not exhaustive and wherever rule 17 does not apply, resort can be
taken to section 151.
Leave to amend when can be granted:
The amendment of pleadings application can be granted so as to enable the real question in
issue between the parties to be raised in the pleadings therefore, an amendment application
can be raised in following circumstances:

 Whether the amendment is necessary for the determination of real question in

controversy;
 Can be amendment by allowed without causing injustice to the other side.

172
Om prakash vs. ram kumar, AIR 1991 SC 409.
The first condition must be satisfied before approving the amendment application as the
cardinal test for granting amendment remains ‘the real controversy in issue.’ No amendment
should be allowed when it does not satisfy this cardinal test.173
Leave to amend when can be refused:
The power to grant amendment is a discretionary power as well as a legal power and no legal
power can be exercised improperly, unreasonably or arbitrarily. In Ganga Bai vs. Vijay
Kumar AIR 1974 SC 1126, it was held that the power to allow an amendment is wide and
discretionary and such discretionary power should be governed by judicial considerations as
wider the discretion, greater ought to be the care and circumspection on part of the court.
Leave to amend can be refused in the following circumstances:

 Leave to amend will be refused where the amendment is not necessary for the
purpose of determining the real question in controversy between the parties;
 Leave to amend will be refused if it introduces a totality different, new and
inconsistent case or changes the fundamental character of the suit or defence; 174 the
test as to whether the amendment should be allowed is whether or not the party can
amend his pleading without placing the other side in a position from which he cannot
be recouped in relation to costs or otherwise.
 Where the effect of the proposed amendment is to take away from the other sidea
legal right already accrued in his favor;175 Charan Das vs. Amir khan AIR 1921 PC
50, the full power to make an amendment on behalf of the court can not be disputed,
those power should be exercised in a way that it does not take away from the
defendant a legal right which has accrued to him by lapse of time but there may be
cases or circumstances where such considerations are outweighed by the special
circumstances of the case itself.
 Where the application for amendment is not made in good faith because as a general
rule, leave to amend ought not to be granted if the applicant has acted malafide.176
Principles regarding amendment of pleadings:

 All the amendments should be allowed which are necessary for determination of real
controversy in the suit;
 The proposed amendment should not alter and be a substitute for the cause of action
on the basis of which the original litigation was filed or raised;
 Inconsistent and contradictory allegations in negation to the admitted position of facts
or mutually destructive allegations should not be allowed to be incorporated by means
of amendment;
 Proposed amendment should not cause injustice or prejudice to the other side which
cannot be compensated by way of costs;
 Amendment of a claim or relief barred by time should not be allowed;
 No amendment should be allowed which amounts to or results in defeating a legal
right to the opposite party on any account (lapse of time, etc.)
 No party should suffer on account of technicalities of law and the amendment should
be allowed to minimize the litigation between parties to the extent possible.
173
Kishan das vs. rachappa vithoba, 1909 ILR Bom.
174
Modi Sewing and Weaving Mills co. ltd. vs. Ladha Ram, (1976) 4 SCC 320; A.K. Gupta and Sons ltd. Vs
Damodar valley corporation, AIR 1967 SC 96.
175
Pirgonda Patil vs. Kalgonda Patil; A.K. Gupta case.
176
Ram Manohar vs. National Building Material Supply, 1969 1 SCC 869; Pirgonda Patil vs. Kalgonda Patil.
  The delay in filing petition for amendment of pleadings should be properly
compensated for by way of costs.
 Error or mistake which is not fraudulent should not be made a ground for rejecting
the application for amendment of pleadings.
 The principles mentioned herein are illustrative and not exhaustive.
Doctrine of relation back: an amendment is aiming at the main course of pleadings.
Amendment would deem to take an effect from the date when the original suit is filed and not
form the day on which such amendment is accepted. This doctrine refers to the fact that
normally an amendment relates back to the original course of pleadings but the doctrine is not
absolute, unqualified or of universal application. In appropriate cases, the court may order the
amendment to take an effect from the date of application or from the date of approval and not
from the date the plaint or written statement was actually presented.177
Failure to amend the pleadings (Rule 18)
If a party who has obtained an order to leave to amend does not amend accordingly within the
time specified for that purpose in the order or if no time is specified then within 14 days from
the date of such order, he shall be permitted to amend, after the expiry of which, he may not
be subsequently allowed to amend. The rule is discretionary in nature and the court may on
its own extend the time line or may allow a subsequent amendment depending upon the facts
and circumstances of the case.

ORDER 7 [PLAINT AND WRITTEN STATEMENT]

Rule 1 to 8: particulars of plaint

 The name of the court in which the suit is to be brought;

 The name, description and place of residence of the plaintiff;
 Name, description and place of residence of the defendant;
 Where the plaintiff or defendant is minor or a person of unsound mind, then a
statement of that effect;
 Facts constituting the cause of action and the time when it arose;
 The facts showing that the court have requisite jurisdiction;
 Statement of the value of subject matter of the suit for calculation of requisite court
fees and for pecuniary jurisdiction of the court;
 The relief claimed by the plaintiff, simply or in alternative;
 Where the plaintiff files the suit in a representative capacity, the facts showing that
the plaintiff have actual existing interest in the subject matter and that he has taken
steps to realize such interests;
 Where the plaintiff has allowed a set off or relinquished a portion of his claim, the
amount so allowed or relinquished;
 Where the suit is for recovery of money, the precise amount claimed by the plaintiff;
 Where the suit if for accounts or mesne profits or for movables in possession of the
defendant, the approximate amount or value thereof;
 Where the subject matter of the suit is immovable property, a description of the
property making it sufficiently identifiable;
177
Brij Kishore vs. Mushtari Khatoon; Vishambhr vs. Lakshmi Narayan, AIR 2001 SC 2607 (exception to the
above doctrine).
  The interest and liability of the defendant in the subject matter of the suit;
 Where the suit is time barred, the ground upon which exemption from law of
limitation is claimed;
 Bhagwati Prasad vs Chandramaul, AIR 1966 SC 735, it was held that the general rule
is that the relief should be founded upon the pleadings made by the parties in either
written or oral form. To allow one party to rely upon a matter in respect of which the
other party did not lead evidence and hence had no opportunity to lead evidence
would introduce considerations of prejudice and in doing justice to one party, the
court cannot do injustice to another. But the suit cannot be dismissed merely on the
ground that the plaintiff has claimed a bigger relief than he is entitled to as the court
may on its own grant a relief for which the plaintiff is sufficiently entitled.
Rule 9: admission of plaint
It provides for filing of copies of the plaint by the plaintiff and also requires him to pay
requisite court fees as well as the fees for the service of summons within seven days of the
date of such admission.
Return of plaint, rule 10 and 10 B
Where at any stage of the suit the court finds that it has no jurisdiction either territorial or
pecuniary or in relation to the subject matter of the suit, it will return the plaint to be
presented to the proper court in which the suit ought to have been filed.
The judge returning the plaint should make endorsements on it regarding:

 The date of presentation;

 The date of return;
 The name of the party presenting it;
 Reasons for return of plaint.
Rejection of plaint Rule 11
The plaint will be rejected in following cases:

 Where the plaint does not disclose the cause of action;

 Where the relief claimed is undervalued;
 Where the plaint is insufficiently stamped;
 Where the suit is barred by law;
 Where the plaint is not filed in duplicate;
 Where there is non compliance with statutory provisions of this code;
 Any other ground
Procedure for rejection of plaint
Where a plaint is rejected by the court, the judge will pass an order to that effect and will also
record the reasons for such rejections.
Effect of rejection: Rule 13
If the plaint is rejected in any of the above grounds, the plaintiff is thereby preclude from
presenting a fresh plaint on the same cause of action. Such rejection order is appealable
Documents submitted along with the plaint Rule 14-17
a document upon which the plaintiff seeks to rely or has relied is specifically mentioned that
it ought to have been produced in the court along with the plaint, however this provision does
not apply to following documents:

 the documents which are reserved for the purpose of cross examination of the
defendant’s witnesses
 .the documents which are handed over to the witnesses merely for the purpose for
refreshing their memory.
Summons [section 27-29 read with order 5]
A summon is a document issued from the office of court of justice calling upon the person to
whom it is directed to attend before a judge or officer of the court for a certain purpose
whereby an intimation is sent requiring him to appear before the court.
Object: where a suit is filed by the plaintiff against the defendant seeking a relief against him,
the defendant must be given an opportunity as to what he wants to contend in relation to the
case so instituted. This goes in consonance with the principles of natural justice where it
suggests that no one should be condemned unhurt. [audi altrem partem]. It is however the
discretion of the court to make a person appear in a person through any other mode. If the
summon is not served to the defendant, it will not bind him for the purpose of decree.
Essential particulars of the summon (Rule 1 and 2)
A summon issued from the court shall be signed by the judge or such officer as appointed by
him and shall be sealed by the seal of the court and in case of summon being served to the
defendant, it shall be accompanied by the copy of the plaint.
Appearance in person, rule 3: through the successful delivery of summons, the court may
direct:

 A person to appear before it individually or in person;

 The court may direct a pleader on behalf of the person to appear before the court
who have the knowledge of the case and is able to answer all material questions;
 A pleader along with some person who is able to answer all such material
question.
Exemption from appearance in person Section 132-133, rule 4:

 No person shall be ordered to appear in person unless

o He resides within the local limits of the ordinary original jurisdiction of the
court; or
o Outside such limits but not less than fifty miles in case of non availability of
public conveyance and 200 miles in case of availability of public
conveyance.
 A women not appearing in public;
 Any order ground of exception to which a person is entitled under this code.
Contents of summon [rule 5-8]
Every summon must contain a direction as to the date fixed either for settlement of issues or
for final disposal of the suit, in case of final disposal, the defendant should be directed to
produce his witnesses. The court should ensure availability of sufficient time to the defendant
for answering the claims of the plaintiff. The summon should also contain an order asking the
defendant to produce all documents which are in his possession or documents upon which he
seeks to rely during the trial of the suit.
Mode of service of summon [rule 9-30]
The service of summons is of fundamental importance to the civil litigation because as a
matter of general rule, fair trial should be accorded to each and every party whereby he can
defend himself with adequate time. The service of summon has also been an area of concern
for the court as it caused delay in the litigation and therefore taking into account the modern
means of communication, amendments were brought in delivery of summon in 1976, 99,
2002.
Different modes of summons:

 Service of summons in person: rule 10, 16-18: the mode of service of summon in
person is the ordinary mode of service which is governed by following principles:
o This is the most ideal mode of service because as summons means the
intimation of the suit to other person and therefore, if it is in person, it is most
preferred. Wherever practicable, the summons should be served to the
defendant in person or to his authorized agents;
o Where the defendant is absent from his residence at that time of service of
summons and the likelihood of him being found at his residence within a
reasonable time is not clear then the summons may be served to any male
adult member or otherwise to a female adult member of the defendant’s family
residing with him. A servant of the house cannot be said to be a family
member. (explanation of Rule 15)
o In a suit relating to any business or work against a person not residing within
the territorial jurisdiction of the court issuing such summons, it may be served
to the manager or authorized agent carrying out business on his behalf.
o In a suit for immovable property, if the service of summons cannot be made
on the defendant personally, and the defendant has no authorized agent then
the summons may be served to any other agent who is incharge of such
property.
o Where there are two or more defendants, service of summons should be made
on each defendant individually.
 Service by courts [Rule 9]:
o summons to the defendants who are residing within the jurisdiction of the
court shall be served the summons through court officers or through any
approved courier service. It may even be served via registered post, speed
post, fax, messages, email service or through any other means of transmission.
o Where the defendant is residing outside the jurisdiction of the civil court, the
summons shall be served through an officer of the court within whose
jurisdiction the defendant resides.
o The court shall treat refusal of acceptance of summons as a valid service of
summons.
  Service by plaintiff Rule 9A: the court may also permit service of summon by the
plaintiff in addition to service of summons by the court. [Salem Advocates Bar
Association case]
 Substituted service [Rule 17, 19, 20]: the service of summons by a court which is
distinct from the ordinary mode of service and was approved by the court.
o Where the defendant or his agent refused to sign the acknowledgment or
where the service officer after due and reasonable diligence cannot find the
defendant at his residential or business premises and there is no likelihood of
him being available within a reasonable time, the service of summons can be
made by affixing a copy of the summons on the outer door or some other
conspicuous part of the residential or business premise of the defendant. In
such situations the court will ask the service officer to give an affidavit of the
same and upon due satisfaction, the court may declare such affixing as the
valid service of summons.
o The court is not able to trace the correct location even. Where the court is
satisfied that there is enough reason to believe that the defendant avoids the
service of summons or due to certain reasons it cannot be delivered through
ordinary mode, then the service may be effected by affixing the copy of
summons in some conspicuous place in the court house and also upon some
conspicuous part of the house in which the defendant is known to have last
resided, carried on business, or personally worked for gain or any other
manner which the court thinks deem fit.

Written Statement [order 8]

Special rules of defence in written statement:

 The defendant may bring new facts or such actions which make the suit either non
maintainable or declare it as void or voidable in law. The purpose of this rule is to
give an advance notification of the additional grounds relied upon by the defendant to
the plaintiff in order to substantiate the cause of justice and convenience.
 The denials must be specific in nature where each allegation of facts must be
expressly accepted or denied in writing.
 The language of denial should not be vague or evasive as in the case of damages or
for recovery of money, the defendant should categorically express whether he has
received the sum or any part of the sum thereof.
 Every allegation of facts in the plaint if not denied specifically, shall be taken to be
admitted in the eyes of the court except against a person who was under disability
(like law o f limitation, suit for ceiling of immovable property without informing the
affected party as he did not received the summons for demolition of his property
[physical disability]) and may further be required to be proven by the same party.
 Where the defendant relies upon several grounds for defence or raises an issue of set
off or counter claim based on distinct facts, they should be stated separately or
distinctly in the written statement.
 Any new ground of defense which has arisen after the institution of the suit or
presentation of the written statement should be specifically pleaded by the defendant
in his written statement and for the same the court is empowered to take necessary
actions.
  No pleading after the written statement of the defendant can be filed other than by
way of set off or counter claim. This rule is however subject to the discretion of the
court.
 If the defendant fails to present his written statement within the time permitted or as
fixed by the court, the court may pronounce the judgment against him or any such
order in relation to the suit as it deems fit. It may declare the matter ex parte. In the
case of Balraj Taneja vs. Sunil Madan,178 the supreme court held that the court is not
supposed to act blindly upon the admission of the facts made by the defendant in his
written statement, nor should the court proceed to pass the judgment blinding, merely
because a written statement has not been filed by the defendant traversing the facts set
out by the plaintiff in his plaint. In such a case, the proposition should be covered by
the expression ‘the court may in its discretion require any such facts to be proved’
used in sub rule 2 of rule 5 of order 8 for substantiating the cause of justice.
Set off [order 6]: a cross claim setup by the party to offset the original claim. It is an
extension of debts of which two persons contesting the matters are reciprocally credited to
each other. Where there are mutual debts mutual debts between the plaintiffs and the
defendant one debt may be settled against the other. The plea of setoff is a plea whereby the
defendant acknowledges the justness of the plaintiff’s claim but sets up another demand of
his own to counter balance the demand of his own against the demand of the plaintiff
either in whole or in parts.
The law recognizes two types of set off, order 8, rule 6 expressly deals with Legal setoff.
However it does not take away the power of the court to allow such adjustment independent
of the provision of the rule 6, order 8 which is referred as equitable se off:
Differences

 Legal setoff should be for ascertained or specific sum of money whereas equitable
setoff may be allowed even for an uncertain sum of money.
 Legal setoff can be claimed as a matter of right and the court is bound to entertain and
adjudicate upon it, whereas equitable setoff cannot be claimed as a matter of right and
the court is having a discretion leading to such adjudication.
 Under legal setoff it is necessary that the amount claimed as a part of set off must be
legally recoverable and must not be time barred whereas under equitable setoff, a
claim may be allowed even if it is time barred and only thing to be established is the
presence of a fiduciary relationship between the parties.
 A legal setoff requires a court fees to be paid whereas for equitable setoff there is no
requirement of a payment of court fees.
Counter claim [Rule 6a to 6g, Order 8, introduced in 1976]: counter claim may be defined as
a claim by the defendant in a suit against the plaintiff. It is a claim independent of and
separable from the plaintiff’s claim which can be enforced as a cross action in favor of the
defendant against the plaintiff.
In Lakshi Das vs. Nana Bhai179 the SC observed the scope of counter claim for the first time
and held that the question before the court is to consider on principles as to whether there is
anything in law statutory or otherwise, which precludes a court from treating a counter claim
as a plaint in a cross suit. The issues of counter claim are to be dealt with the question that

178
AIR 1999 SC 3381.
179
AIR 1964 SC 11.
whether they have to conform with all the requirements of plaint mentioned under CPC if
treated as a plaint and there could not be a legal objection to the counter claim being treated
as plaint under the law and therefore to hold the otherwise would be to erect what in
substance is a matter of defect in a form of pleading into an instrument for denying what
justice manifestly demands.
Object: The provision relating to counter claim thus seeks to save the time of the courts,
exclude inconvenience to the parties to such litigation and decide all such disputes between
the parties avoiding unnecessary multiplicity of judicial proceedings and prolonged trials.180
Modes to setup of counter claim:

 In the written statement itself filed under Order 8 rule 1;

 By amending the written statement with the leave of the court and setting up a counter
claim;
 In a subsequent proceeding or pleading under Order 8 Rule 9 itself.
Who may file a counter claim: a defendant may file a counter claim against a plaintiff and
incidentally alongwith the plaintiff, the defendant may also claim relief against co-defendant
in the same suit. But a counter claim solely against the co-defendant is not maintainable.181
Effects of counter claim: the counter claim of the defendant will be treated as a plaint and the
plaintiff has a right to file a written statement in answer to the counter claim of the defendant.
The counter calim of the defendant will be treated purely on the merits and on the principles
governing the plaint and the plaintiff has to file a reply to the counter claim which shall be
treated as his written statement and all the rules governing the aspects of plaint are applicable
on the counter claim.
The difference between set off and counter claim:

 Set off is a statutory defence to a plaintiff’s action whereas a counter claim is

substantially a cross action suit.
 Set off must be for an ascertained sum of money or it must arise out of the same
transaction whereas a counter claim need not arise out of a same transaction;
 Set off is a ground of defence to the plaintiff’s action which would afford an answer
to the plaintiff’s claim in toto or pro tanto (in a proportion). Whereas the written
statement is a weapon of offence which enables the defendant to enforce a claim
against the plaintiff effectually as an independent action.
 In case of a legal set-off the amount must be recoverable at the date of the suit, while
in case of counter claim the amount must be recoverable at the date of filing of written
statement.
 When the defendant demands in a plaintiff’s suit an amount below or upto the claim
of the suit, it will be treated as set off in a strict sense but when the claim is for a
larger amount, the excess claim raised may be treated as a counter claim.

180
Ramesh Chandra vs. Anil Panjwani, AIR 2003 SC 2508.
181
Rohit Singh vs. State of Bihar, AIR 2007 SC 10
Appearance and non-appearance of parties:
Rule 1 and 12:
Chota Lal vs. Amba Lal Hargoban: Bombay high court held that where a party arrives late for
his suit or application, he is entitled to restore his suit or application on the basis of payment
of costs.
Currin Bhai vs. N H Moos: it is difficult to agree with the principle developed in the case of
chota lal. If such a rigid rule is laid down, it might mean that the defendant will successively
prevent his suit from ever being heard and for all his misconduct, all he has to do is pay a cost
at a later stage for restoration of the matter altogether and that is something which the court
obviously cannot allow to happen.
Lakshi Commercial Bank ltd. vs Hans Raj: the underlined principles is that until the suit is
finally decided a party has a right to come in and defend the suit and this rule should be
liberally construed.
Arjun Singh vs. Mohindra Kumar (Supreme Court, AIR 1964 SC 993): one has to give valid
reason for restoration, payment of cost is not sufficient.
It is a fundamental rule of law of procedure that a party must have a fair and reasonable
opportunity to represent his case and for that purpose he should have a prior notice of legal
proceedings being initiated against him. If the summons is not duly served which is a
condition precedent to a fair trial or it does not give him sufficient time to represent his case
sufficiently, then no decree can be passed against him.182
Ex parte orders:
Ex parte is a decree passed in the absence of the defendant. Where the plaintiff appears and
the defendant does not appear at the time when the suit is called for hearing the court may
hear the suit ex parte and pass a decree against him. Such a decree is neither null and void nor
inoperative but is merely voidable subject to the ground of availability of sufficient cause or
legal reasons.183
Remedies against the order of ex parte:

 To apply to the court by which such decree is passed to set it aside under Order 9 Rule
13 of CPC;
 To prefer an appeal against such decree under Section 96(2) or to file for revis0ion
under Section 115 of CPC where no appeal lies;
 To apply for review, order 47 Rule 1;
 To file a suit on the ground of fraud.184
The above remedies are concurrent and they can be prosecuted simultaneously or
concurrently and where two remedies are resorted to one cannot be said to be operating in
derogation of other.

182
Begum Para vs. Luiza Matilda Fernandez. 1984 2 SCC 395.
183
Pandurang Ramchandra vs. Shanti Bai Ramchandra, AIR 1989 SC 2240.
184
P Kiran Kumar vs. A S Khadar, AIR 2002 SC 2286.
Setting aside ex-parte rule 13: an order of ex parte has been passed may apply for setting it
aside and where there are more than one defendants then anyone of them can apply to set it
aside.
Where the application will lie: an application to set aside the ex parte order may be made to
the court which has passed the ex parte order and where such decree is confirmed by a
superior court then an application may lie before such superior court.
The grounds for setting aside the order of ex parte:

 If the summons were not duly served and the defendant satisfied to the court for the
same then it acts as the valid ground for setting aside the ex parte order;
 Availability of a sufficient cause which has prevented his appearance in the court: the
expression sufficient cause is not defined anywhere but the party should not be
deprived of hearing unless there has been something equivalent to misconduct or
gross negligence on his part.
 Necessary materials should be placed before the court to show that the applicant is
vigilant and diligent, whether or not there is a sufficient cause would depend upon
facts and circumstances of the cases, if there are delaying tactics and non cooperation
on part of the parties, the party cannot seek indulgence of the court. The test to be
applied is whether the party honestly intended to remain present at the hearing of the
suit and did his best to do so. 185 The language of the above rule is plain, express and
unambiguous and the grounds mentioned therein are exhaustive. E.g. of sufficient
cause: the burden of proving sufficient cause for non appearance lies on the
defendant and it is enough to prove to that he attempted to remain present, when the
suit was called for hearing. Certain causes have been held to be sufficient causes for
the absence of defendant which are :
o The bonafide mistake as to the date of hearing;
o Late arrival of train or other modes of transportation;
o Sickness of the counsel;
o Fraud of the opposite party;
o Negligence of next friend or guardian in case the defendant is minor;
o Death of a relative of a party;
o Strikes of advocates
 No sufficient cause example:
o Dilatory tactics, delaying tactics;
o Negligence of party;
o Counsel being busy in some other court;
o Absence of defendant after the prayer of adjournment has been refused;
o Mere thinking that the case will not be called upon for hearing;
o Willful avoidance of taking part in court proceedings;

Remedy if ex parte order is passed:

 Appeal: an appeal lies against an order rejecting an application to set aside the ex
parte decree under Section 96(2). There is a conflict before the court that whether in
such cases the appellate court can only consider the decree passed by the lower court

185
Payal Ashok Kumar vs. Captain Ashok kumar, 1992 3 SCC 16; G P Srivastav vs. R K Raijada, 2000 3 SCC
54.
 on merits or whether the court can also consider sufficient grounds or reasons
attached with the non appearance of the party
 Revision: an order setting aside an ex parte decree is ‘case decided’ within the
meaning of section 115 which is subject to the revision of the court
 Review: since all the remedies against an ex parte decree are concurrent and
aggrieved party may file an application for review under Order 47 Rule 1.
 Suit: If all doors are closed, a suit for fraud may be filed. A suit to set aside an ex
parte decree is not maintainable, but if an ex parte decree is alleged to have been
obtained by the plaintiff’s fraud then the defendant can file a regular suit to set aside
such decree as fraud vitiate the solemn objective of justice.

FIRST HEARING OF THE SUIT [ORDER 10, 14, 15]:

First hearing of a suit means the day on which the court goes into the pleadings of the parties
for understanding their contentions. Presentation of the plaint is the first stage of the trial,
submission of written statement is the second stage and the third stage of the suit where
framing and settlement of issues in the presence of parties takes place, is called first
hearing.186 In this case, it was observed that the date of fist hearing is the date on which the
court proposes to apply its mind in the contentions of the parties to the suit and in the
documents filed by them for the purpose of framing of issues.
Object of first hearing: under order 10 rule 1, a the stage of first hearing the court will
ascertain whether the parties accept or deny the allegations of fact or law maid either in plaint
or written statement and if there is no possibility of settlement the case will be enlisted for
detailed hearing. Hence at the stage of first hearing the job of the court is to ascertain with
precision the proposition of law or fact on which the court may frame an issue and examine
the testimony of the parties.
Framing of issues [order 14, 1]: issues arise when a material proposition of fact or law is
affirmed by one party and denied by the other party. Each such material proposition so
affirmed or denied shall become the cause of a distinct issue.
Kinds of issue: rule 1 of order 14 provides that issues can be issues of fact, issues of law or
mixed issues of fact and law. Issues of law may relate to : the jurisdiction of the court, a bar
to the suit created by any law for the time being in force.
Importance of issues:

 it is the issues framed and not the pleadings of the parties that will guide the parties in
leading the evidences.
 The court cannot refuse to determine a point an issue has been framed and the
evidence were lead by the parties even if the same were not included in the pleadings.
 The court should not frame any such issue which does not arise in pleadings as it
helps the court from avoiding the deviation from the subject matter.
 Issues must be confined to material question of fact or law (facta probanda) and not
on subordinate facts or evidences by which the material facts are either proved or
disproved (facta probantia)
 One issue should preferably cover only one fact or law in dispute between the parties.

186
Siraj Ahmed vs. Prem Nath, AIR 1993 SC 2525.
  If the case goes for appeal, the appellate court is under duty to decide the issues
settled for trial and not on the pleadings of the parties. 187 It was held in this case that
issues are the backbone of the suits which act as the lamp post for enlightening the
parties to the allegations, the trial court and even the appellate court as to what is the
actual controversy, what is the evidence and where lies the actual truth.
Materials for framing issues {Rule 3}

 Allegation made on both by the parties or persons presenting on their behalf or

through the pleaders appearing for the parties
 Allegations made in the pleadings or in answer to the interrogatories
 Documents produced by the parties
Disposal of the suit [order 15]:
Court may pronounce the judgments on the first hearing:

 Where the parties are not at issue or of any question of fact or law
 Where there are two or more defendants and anyone of them admits to the claim of
the plaintiff, the court may pronounce the judgment against such defendants and a suit
may proceed against other defendants
 Where the summons has been issued for the disposal of the suit and either party fails
without sufficient cause to produce the evidence on which he relies
 Where a party or his pleader makes certain admission of the facts which are sufficient
enough to dispose of the case
 Where after the issues have been framed the court is satisfied that no further argument
or evidence is required
Discovery, inspection [order11], admission (read by own) [order 12] and production,
impounding and return of documents [order 13] and affidavits [order 19]:

 Discovery and inspection:

o Discovery means to compel the opposite party to disclose what he has in his
possession. It is a compulsory disclosure by a party to an action of facts or
documents on which the other side wishes to rely. After the settlements of the
issues, a party to the suit may require information from his adversary as to
facts or documents in possession of such party through putting up a series of
questions which is called interrogatories. The judge will go through these
questions and if he considers them proper he will compel the other side to
answer them on oath before the trial, this particular submission on oath is
called discovery of facts.
 Interrogatories [Rule 1 to 11]:
o Object
 to know the nature of the case of the opponent
 To support his own case either by directly obtaining admission or
indirectly by impeaching or destructing the case of his opponent.
o Who may administer interrogatories
 It may be administered by one party to a suit to the other party which
may be the case that a plaintiff may ask interrogatories to the defendant
and vice versa
187
State of Gujarat vs. Jaypal Singh, Jaswant Singh Engineers and Contractors
  Interrogatories may be addressed to a co-plaintiff by plaintiff and to
the co-defendant by the defendant but it is necessary that all of them
are parties to the suit.
o Rules for framing interrogatories:
 Interrogatories may be administered in writing with the leave of the
court and subject to the limitations as may be prescribed by the court
 The particulars of the interrogatories proposed to be delivered should
be submitted to the court which shall decide within the ten day from
filing of such application
 Interrogatories may be administered by a plaintiff to a defendant
provided that there is some question or issue between them in the suit
or proceedings
 No party can deliver more than one set of interrogatories without the
order of the court
 No leave may be granted to the plaintiff for administering the
interrogatories until the written statement is filed by the defendant or
the time to file the written statement has expired and similarly a
defendant may not file interrogatories before filing his written
statement
 Where a party to the suit is corporation or body of persons,
interrogatories may be administered to a officer or member of such
corporation
 Where a party to a suit is minor or lunatic person, interrogatories may
be administered to his next kin
 Interrogatories and an affidavit in support to such interrogatories must
be delivered to the court in prescribed form
 Interrogatories must relate to or must have a reasonable nexus with the
subject matter of the suit
 Interrogatories should be submitted the court within the ten days of
service of such interrogatories or the time as fixed by the court
 Interrogatories must relate to the question of fact and not the
conclusion or inferences of the law
 Interrogatories may be objected on the ground that they are scandalous,
vexatious, and irrelevant or unreasonable or not in bonafide intention
in relation to the subject of the suit
 The cost of the interrogatories shall be borne by the party
administering them but the court may also order the party who has
defaulted to answer such interrogatories to pay the cost
 Any party to the trial of the suit may use in evidence any one or more
of the answers or any part of the answers thereof in support of his
claim to the suit
 Where any person fails to comply with an order to answer
interrogatories his suit can be dismissed if he is a plaintiff or his
defence may be struck off if he is a defendant.

Interim orders
Interim orders means those intervening order which are temporary in nature and remain in
force for the time being during the pendency of a suit or proceedings which do not finally
determine the substantive rights and liabilities of the parties in respect to the subject matter of
the suit or proceedings.
Types of interim orders:
o Payment in court [order 24]
o Security in costs, order 25
o Commissions, order 26
o Arrest before judgment, order 38
o Attachment before judgments, order 38
o Temporary injunction, order 39
o Receiver, order 40

Appointment of commissions [Sections 75-78 read with Order 26]: it deals with the power of
the court to issue commission which is discretionary in nature and can be exercised by the
court for doing full and complete justice between the parties. it can be exercised by the court
either on the application of the parties or suo moto.
Purpose:

 To examine witnesses: the court has a discretion to relax the rule of attendance of
witnesses on the ground of inability of the person to attend the court relating to
sickness or infirmity or his presence may be detriment to the public interest. The court
may issue commission on the following grounds:
o If the person to be examined as a witness resides within the local limits of the
court’s jurisdiction and is exempted under the code from attending the court or
he is suffering from sickness or physical infirmity making him impossible to
attend the court or in the interest of justice, for expiditious disposal of the
case- a commissioner is deemed necessary.
o If the person resides beyond the local limits of the court’s jurisdiction
o If he is about to leave the jurisdiction of the court
o If the person is a government servant and in the opinion of the court his
attendance may not be without detriment to public service.
o If the person is residing out of india and the court is satisfied that his presence
is necessary
 To make local investigations: the court may in a suit appoint a commission to conduct
local investigation and report thereon for the purpose of
o Elucidating any matter in dispute
o Ascertaining the market value of the property for which the calculation of
mesne profits or annual net profits is required
o The object of local investigation is not to collect evidence which are
admissible directly in the court but to obtain the evidences from its very
peculiar nature which is available or found only on the spot.
 To adjust accounts: in any suit where examination or adjustment of accounts is
deemed necessary, the court may direct a person to act as commissioner for carrying
out the instructions of the court and report thereon.
 To make partitions (at the time of executions): where a decree of partition of
immovable property has been passed, the court may issue a commission to carry out
the modes of partition according to the rights declared in the decree and submit a
report thereon to the court
  To conduct sale of the property: where in any suit it becomes necessary to sell a
immovable property which is already in the custody of the court and the preservation
of the same becomes difficult pending the final determination of the rights, court may
appoint the commission if it deems fit directing him to conduct such sale and report
thereon.
 To perform ministerial act: clerical works
 Powers of the commissioner [Rule 16-18, Order 26]:
o Summon or procure the attendance of the parties and their witnesses and
examine them
o Call for examining the documents
o Enter into any land or building mentioned thereon in the order
o Proceed ex parte if the parties do not appear before him even after repeated
summons and reminders
 Who will take care of the expenses: they may be taken care of by the party asking for
such appointment by depositing the relevant expenses in the court.
Arrest before judgment [order 38, rule 1 - 4]: under the special circumstances the court can
order for arrest of a debtor where the creditor moves an application suggesting that the
execution of the decree may be delayed on account of the debtor or the party absconding
from the local jurisdiction of the court. The object of this order is to enable the plaintiff to
realize the amount of decree eventually if passed in his favor and to prevent any attempt on
behalf of the defendant to delay the cause of the justice or to delay the execution of the
decree.
Grounds of the arrest are:

 The defendant is having an intent of delay or to avoid the court process or to obstruct
the judicial processes has absconded or left the local limits of the jurisdiction of the
court or is about to abscond or leave the local limits or has disposed of or removed the
property from the local limits of the court or any part of the property thereon.
 The defendant is about to leave India under circumstances affording reasonable
opportunity or apprehension that the plaintiff may not be able to realize his claim or
the defendant may delay the execution of the suit.
 The plaintiff making a request for arrest of the defendant before the judgment shall
have to supply these grounds on the affidavit but the defendant will not be arrested if
he is entrusting his task to his manager or agent for executing the decree. Even after
fulfilling the above grounds the order of arrest may not be passed as it rests
completely within the discretion of the court.
 Conditions precedents before arrests:
o The plaintiff’s suit must be bonafide and his cause of action must be
unimpeachable
o The court must have a reason to believe on the basis of adequate materials that
there is an urgency to exercise this extraordinary power and the same lies
within the ambit of the court.

Complete it by urself
Execution of decrees [Section 38, order 21]: it means the enforcement and giving effect to a
judgment or order of the court so as to enable the decree holder to realize the fruits of the
decree. The execution is deemed to be completed when the decree holder or the judgment
creditor gets money or other things award to him by judgment or decree. In Ghanshyam das
vs Anant kumar Sinha, AIR 1991 SC 2251, it was held that the remedy under the civil
procedure code is of superior judicial quality than what is generally available under other
statutes and the judge being entrusted exclusively with administration of justice is expected to
do better. CPC contains elaborate and exhaustive provisions dealing with all the aspects of
execution providing effective remedies not only to judgment debtors but also to claimant
objectors.
The courts which may execute the decree: section 38 enacts that a decree may be executed
either by the court which passed it or by the court to which it is sent for execution. Section 37
defines the expression ‘court which passed the decree’ and the following courts fall under this
expression:

 The court of first instance which actually pass the decree;

 The courts of first instance in case of appellate decrees;
 Where the court of first instance has ceased to exist, the court which would have
jurisdiction to try the suit at the time of execution;
 Where the court of first instance has ceased to have jurisdiction to execute the decree,
the court at the time of execution would have had jurisdiction to try the suit
In Ghantesher vs. Madan Mohan AIR 1997 SC 471, it was held that a decree may be
executed either by the court which passed it or by the court to which it is send for execution.
In Merla Ramanna vs. Nallapa Raju AIR 1956 SC 87, it was held that a court which has
neither passed a decree not a decree is passed for execution, cannot execute it. it is settled law
that the court which actually passed the decree does not lose its jurisdiction to execute it by
reason of the subject matter thereof being transferred subsequently to the jurisdiction of
another court.
Transfer of decree for execution [Section 39-42 read with order 21 rule 3-9:] as a general
rule, the court which pass the decree is primarily the court to execute it but such court may
send the decree for execution to another court either suo moto or at the application of the
decree holder if following grounds exists:

 The judgment debtor actually and voluntarily resides or carries on business within the
local limits of the jurisdiction of such court;
 The judgment debtor does not have property sufficient to satisfy the decree within the
local limits of the jurisdiction of the court which pass the decree but has property
within the local limits of the jurisdiction of such other court
 The court directs the sale or delivery of immovable property situated outside the local
limits of the jurisdiction of such other court;
 The court which pass the decree considers it necessary for any other reason to be
recorded in writing that the decree should be executed by such other court
In lakshi narayan vs suraj kumar baksh and Mohan deo Prasad vs. Ram Lochan, it was
held that the provision of section 39 stating the grounds for transfer of execution proceedings
are not mandatory and the court has the discretion in the subject matter which will be
judicially exercised by it.
General principles:

 Territorial jurisdiction is a condition precedent to a court executing a decree in respect

of property situated entirely outside its local jurisdiction.
 An executing court cannot go behind the decree; it must take the decree as it stands
and execute it according to its terms. It has no power to vary or modify the terms or to
question its legality or correctness because of the reason that the legality of the main
proceedings cannot be brought into question through collateral proceedings and
therefore no enquiry on this ground can be initiated.188
 In case of inherent lack of jurisdiction, the decree passed by the court is a nullity and
its invalidity could be setup wherever and whenever it is sought to be enforced.
Whether in execution or in the main proceedings.
 Inherent lack of jurisdiction however must appear on the face of the record and hence
if the decree on the face of it discloses certain material on the basis of which the court
could have passed the decree, it would be valid and in such cases the executing court
must except and stand by the decree as it receives.189
 A decree which is otherwise valid and executable does not become inexecutable on
the death of the decree holder or of judgment debtor and can be executed against his
legal heirs.190
 When the terms of the decree are vague or ambiguous, an executing court can
construe the decree to ascertain its precise meaning for which it may refer to the
judgment or even the pleadings of the parties.191
 An executing court can go into the question of the executability or otherwise of the
decree and consider whether by any subsequent developments the decree has seized to
be executable according to its present terms.192
 A decree which becomes inexecutable by operation of law may become executable by
virtue of a subsequent amendment in the statute and can be executed after such
amendment.193
 The executing court has the power to mould the relief granted to the plaintiff in
accordance with the changed circumstances.194
 The court executing the decree transferred to it has the same powers in executing such
decree as if it had been passed by itself.195

188
Bhanwar Lal vs. Universal Heavy Mechanical Lifting Enterprises.
189
Nagin Das vs. Dalpat Ram; K K Chari vs. R M Sashadari.
190
Pradhati Devi vs. Mahadeo Prasad.
191
Dhavan Vaja vs. Solanki Hanuji Khodaji.
192
Jai Narayan vs. Kedar Nath.
193
Dularey Lodh vs. ADJ Kanpur.
194
yashPal singh vs. ADJ.
195
Mahadeo Prasad vs. Ram Lochan.