SYMBIOSIS INTERNATIONAL (DEEMED UNIVERSITY)

(Established under Section 3 of the UGC Act 1956)

Re-accredited by NAAC with ‘A’ grade (3.58/4) Awarded Category – I by UGC

Program: - BBA LLB

Batch: - 2019-24
Semester: - IV
Course Name: - Code of Civil Procedure
Seat No: - 195616
PRN: - 19010324008

INSTRUCTIONS
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Read the question carefully and write your answer fulfilling the requirements
of the question.
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assessment.
8. If the students copy from each other’s assignment, it will be considered as
unfair means case and performance will be treated as null and void for the
entire examination.
9. File name should be Seat Number Example: 345006
Q 1.B

Along with substantive law, the law also provides for procedural law to define the procedures that
will lead to the people obtaining their rights. As a result, there is a law under the Civil Procedure
Code (CPC) that provides for the procedure of set-off and counter-claim under Order 8 rule 6 and
rule 6-A which makes it easy for the court to deal with the same cases in a single suit and provide
adequate justice according to it. A civil litigation is started by filing a plaint in the court with
jurisdiction over the subject matter. The plaintiff files a complaint. Similarly, the defendant must
file a written statement, which is a response to the plaint's content. In some situations, this written
statement is accompanied by a set-off and counter-claim. Set-off and counter-claims are the
defendant's cross-claims, and these cross-claims cannot be challenged unless they are backed by a
written statement. A written statement is a response to the plaint, and it must be submitted within
30 days after the plaint's filing date.

Set-off
The phrase "set off" refers to the filing of a claim or counter-claim that must emerge from the same
transaction as the plaintiff's claim. If a defendant has a claim that he wishes to set off against the
current claim, he must file the set off as a written statement within 30 days of the deadline. Set off
is the acquittal of debts in a reciprocal manner. A claim that is set off against another is referred to
as a "set-off." It's a cross-claim that partially cancels out the original claim. It is the elimination of
debts between two people who are reciprocally debtors to each other and reciprocally creditors to
each other's credits. In a money-recovery lawsuit, a defendant can use any amount of money
legally recoverable from the plaintiff as a set-off against the plaintiff's demand if he can prove it:
a) the ascertained sum does not exceed the pecuniary jurisdiction of the court; and
b) both parties fill the same character as they fill in the plaintiff’s case at the first hearing of
the suit, but not afterwards unless permitted by the Court, present a written statement
containing the particulars of the debt sought to be set-off.

Where in a suit for recovery of money by the plaintiff, the defendant finds that he has also a claim
of some amount against the plaintiff, he can claim a set-off in respect of the said amount. The
doctrine of set-off may be defined as “the 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”. A
plea of set-off is “a plea whereby a defendant acknowledges the justice of the plaintiff’s demand,
but sets up another demand of his own, to counterbalance that of the plaintiff; either in whole or in
part”. Thus, it is a “reciprocal acquittal of debts between two persons”. The right of a defendant to
claim set-off has been recognized under Rule 6.
Conditions to raise plea of set-off
I. The suit is for recovery of money: Only in a suit brought against him for money recovery
would the defendant be permitted to use the set-off plea. If the case isn't about money, the
defendant won't be able to use this defence. For instance, in a suit tor dissolution of
partnership, the defendant cannot claim set-off because it not a money-suit. But, in a suit for
ejectment of tenant on the ground of non-payment of rent, in which arrears of rent have also
been claimed, the defendant-tenant may plead set-off.
II. The defendant’s claim must be for an ascertained sum of money: It means that the amount
claimed by the defendant as a set-off against the plaintiff must be defined, specific, and
known. The plaintiff may not know the amount, but if it is discovered, the defendant may
allege set-off. The defendant does not have the option of pleading set-off for undetermined
sums under Rule 6.
III. The money must be legally recoverable: The term "legally recoverable" denotes that the
debtor is legally obligated to pay the amount. Only those dues that the plaintiff is obligated
to pay under any law will be eligible for set-off by the defendant. Due to the fact that a
time-barred debt is not legally recoverable, no set-off may be claimed for that amount.
IV. Both plaintiff and defendant must fill the same character as they fill in the plaintiffs claim:
Only when both parties, plaintiff and defendant, complete the same role in the claim may
the defendant plead for set-off. It means that the sum for which the defendant claims set-off
must be recoverable from the plaintiff in the same manner as in the suit.
V. The sum claimed by way of set-off must not exceed the pecuniary limits of the court: The
sum sought to be set-off by the defendant must be within the financial restrictions of the
court in which the lawsuit was filed.
There are 2 types of set-off:
(i) Legal set-off- The provision for set-off under Order 8 Rule 6 of CPC, as described above,
deals with legal set-off only. The provisions for this rule is not exhaustive and the court
may allow set off independent of this provision.
(ii) Equitable set-off- An equitable set-off is recognized by Order 20 Rule 19(3) of CPC. This
type of set-off may also be claimed by defendant in case of an uncertain sum of money,
given that both the claims for sums of money are somehow connected, arising out of the
same transaction or are such in nature that they are parts of the same transaction. For
instance, in a suit instituted by A against B to recover Rs. 1000 for breach of contract, B
may claim an equitable set-off in order to recover certain amount as damages for
injuries suffered by him in the same contract.
In Jitendra Kumar Khan v. Peerless General Finance & Investment Co. Ltd it was held that under
Order VIII, Rule 6, CPC certain conditions precedent are to be satisfied for application of the said
Rule. Two primary conditions are that it must be a suit for recovery of money and the amount
sought to be set-off must be a certain sum. Apart from the aforesaid parameters there are other
parameters to sustain a plea of set-off under this Rule. There are two types of set-off: legal set-off
and equitable set-off. Only legitimate set-off is addressed in Rule 6. An equitable set-off, unlike a
legal set-off, can be claimed for undetermined money, but it must be related to the same
transaction.
Counterclaim
Order VIII Rules 6-A to 6-G of the Code of Civil Procedure, 1908 govern counterclaims. It is a
claim that is distinct from and unrelated to the plaintiff's. It is likewise a cross-claim, but it does not
always derive from the same cause of action as the plaint. A counter-claim, unlike a set-off, does
not have to be tied to the recovery of money. It could be with regard to any civil disputes.
“Counterclaim” may be defined as “a claim made by the defendant in a against the plaintiff”. It is a
claim independent of, and separable from, suit plaintiff’s claim which can be enforced by a cross-
action. It is a cause of action in favour of the defendant against the plaintiff.

In the leading case of Laxmidas v. Nanabhai, the Supreme Court observed, “The question has
therefore to be considered on principle as to whether there is anything in law - statutory or
otherwise—which precludes a court from treating a counterclaim as a plaint in a cross-suit. It is
difficult to see any. No doubt, the Code of Civil Procedure prescribes the contents of a plaint and it
might very well be that a counterclaim which is to be treated as a cross-suit might not conform to
all these requirements but this by itself is not sufficient to deny to the court the power and the
jurisdiction to read and construe the pleadings in a reasonable manner.”
The counter-claim is handled in the same way as a plaint. As a result, the plaintiff has the right to
file a written declaration in response to the defendant's counter-claim. If the plaintiff chooses not to
respond, the court may enter a judgment against him on the counter-claim. If the plaintiff believes
that the claim raised by the defendant as a counter-claim should be brought in its own suit, he may
file an application with the court before the issues are settled.
There are three modes of pleading or setting up a counter-claim in a civil suit:

1. First, the written statement filed under Rule 1 may itself contain a counter-claim which in
the light of Rule 1 read with Rule 6-A would be a counter-claim against the claim of the
plaintiff preferred in exercise of legal right conferred by Rule 6-A.
 2. Secondly, a counter-claim may be preferred by way of amendment incorporated subject to
the leave of the Court in a written statement already filed.
3. Thirdly, a counter-claim may be filed by way of a subsequent pleading under Rule 9

Similarities between Set-off and Counterclaim

i. Both are pleaded in the written statement, if the law governing the court permits such
plea being raised by the defendant in the written statement
ii. None should exceed the pecuniary limits of the jurisdiction of the court
iii. A defendant cannot be compelled to plead a set off nor a counter claim: he may as well
maintain an independent action for enforcing the claim forming subject matter of set-off or counter
claim
iv. Both are liable to pay court-fee
v. Dismissal of suit or its withdrawal would not debar a set off or counter claim being tried
may be followed by a decree against the plaintiff.
vi. Even if permitted to be raised, the court may in appropriate cases direct a set off or
counter claim being tried separately
vii. The plaintiff is expected to file a written statement in answer to claim for set off or to a
counter claim
Distinction between Set-off and Counterclaim
In the case of Munshi Ram v. Radha Kishan, It was observed by the honorable court that
The distinction between set-off and counter-claim may now be noted:
i. Set-off is a statutory defence to a plaintiff’s action, whereas a counterclaim is
substantially a cross-action.
ii. Set-off must be for an ascertained sum or must arise out of the same transaction as the
plaintiff’s claim. A counter-claim need not arise out of the same transaction.
iii. Set-off is a statutory ground of defence and has to be pleaded in the written statement. It
can be sued as a shield and not as a sword. Counter-claim, on the other hand, does not afford any
defence to the plaintiff’s claim. It is a weapon of offence which enables the defendant to enforce
his claim against the plaintiff as effectually as in an independent action. It is a sort of cross-action.
iv. If the statute of limitation is pleaded to a defence of set-off, the plaintiff in order to
establish his plea has to prove that set-off was barred when the plaintiff commenced the action. It is
not enough to prove that it was barred at the time when it was pleaded. In the case of a counter-
claim, it is enough for the plaintiff to prove that the counter-claim was barred when it was pleaded.
v. An equitable set-off is a claim by the defendant in defence, which generally cannot
exceed the plaintiff’s claim. A counter-claim the defendant may, however, exceed the plaintiff’s
claim, being in nature of the cross action. Under the provision rule 6-F of Order 6, if in any suit a
set off or counter claim is established as a defence against plaintiffs claim and any balance is found
due to the defendant as the case may be the court may give judgment to the party entitled to such
balance.
SET-OFF COUNTER-CLAIM
1 It is basically a statutory defence Counter-claim is essentially a cross action
. available to defendant against the instituted by defendant against the
plaintiff’s demands. plaintiff
2 Set-off should arise out of the same Counter claim need not arise out of the
. transaction as that for which the plaintiff same transaction as that for which the
has filed a suit plaintiff has filed a suit
3 In case of a legal set-off, the amount The amount should be recoverable as on
. must be recoverable as on the date of the the day of filing written statement
suit so filed
4 It is in essence a ground of defence It is a weapon of offence to strike back
. available to defendant which acts as a against the plaintiff’s claim, and can be
shield thought of as a sword
The sum of money claimed by defendant The amount claimed by defendant is more
may be less than the amount claimed by than that claimed by plaintiff
plaintiff

Conclusion
As a final note, set-off can be used for recovering money in suits related to money and counter-
claim can be used for any civil natured claims. Both have to be filed along with the written
statement, and both have to be filed by the defendant against the plaintiff. These two concepts are
so similar in nature that they tend to reduce the burden of filing a fresh suit against the plaintiff
with regard to their claims
Q2.B

In the common law, several principles have been laid down which formed the foundation of the
present legal system in India. The purpose of such doctrines is to assess the Judicial Efficiency and
ensure that the productive pace of getting justice in the court is achieved and maintained. Two of
these principles are namely, the Doctrine of Res Sub Judice and Res Judicata.

In case of Res Judicata, a matter once decided cannot be raised again, either in the same court or in
a different court. This is why it is also called as ‘claim preclusion’ as it precludes or prohibits any
further claims after the final judgment. It is a common law practice meant to bar re-litigation of
cases between the same parties in the court.

The doctrine of Res Judicata come from the full maxim ‘Res judicata pro veritate accipitur’.

In Indian Legal System, Res Subjudice is included in the Section 10 of CPC which states that:-
“No Court shall proceed with the trial of any suit in which the matter in issue is also directly and
substantially in issue in a previously instituted suit between the same parties, or between parties
under whom they or any of them claim litigating under the same title where such suit is pending in
the same or any other Court in India having jurisdiction to grant the relief claimed, or in any
Court beyond the limits of India established or continued by the Central Government and having
like jurisdiction, or before the Supreme Court.”
In the case of Madan Mohan Vs Geeta Bhawan AIR 2007,The honourable court found out that
“Stay of Subsequent suit cannot be ordered when only one or some of the issues are identical.”

And Res Judicata is explained in Section 11 of CPC which states that: -

“No court shall try any suit or issue in which the matter directly and substantially in issue has
been directly and substantially in issue in a former suit’ between the same parties, or between
parties under whom they or any of them claim, litigating under the same title, in court competent
to try such subsequent suit or the suit in which such issue has been subsequently raised, and has
been heard and finally decided by such court.”

In the case of Satyadhyan Ghosal v. Deorjin Debi, Hon’ble Justice Das Gupta explained the doctrine
of Res Judicata as;“The principle of res judicata is based on the need of giving a finality to judicial
decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it
applies as between past litigation and future litigation. When a matter, whether on a question of fact
or a question of law, has been decided between two 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 no appeal lies, neither party will be allowed in a future suit or proceeding between the same
parties to canvass the matter again.”  

Essentials of Res Subjudice( Section 10)

1. The matter in issue in both the cases are to be substantially the same
 2. Previously instituted suit must be pending in the same or any other court competent to grant:
a. Relief claimed in the suit.
b. Relief claimed in subsequent the suit.
3. Suits to the parties are to be the same or between parties under whom they or any of them
claim, litigating under the same title.
4. Pendency of suit in Foreign Court doesn’t activate Section 10 CPC.
5. If suit is pending before a Court and subsequently an application is filed before a Thasildhar, it
doesn’t invoke Section 10 as Thasildhar is not a “Court”
6. For purpose of institution, the date of presentation of plaint and not the date of admission is
considered. The term suit includes appeal.
7. Any decree passed in violation of Section 10 is null and void.

Essentials of Res Judicata (Section 11 of CPC)

For the application of this section, the following conditions must be satisfied:

1. There must be two suits, one previously instituted and the other subsequently instituted.

2. The matter in issue in the subsequent suit must be directly in the issue in the previous suit.

3. Both the suits must be between the same parties or their representatives.

4. The previously instituted suit must be pending in the same court in which subsequent suit is
brought in any other court or in court beyond the limits of India continued by Central Government
or SC.

5. The court in which the previous suit is instituted must have jurisdiction to grant the relief
claimed in the subsequent suit.

6. Such parties must be litigating under the same title in both the suits.

In the case, Manohar Lal v. Seth Hiralal [ AIR (1962) SC 527], it was observed that “A court cannot
proceed with the subsequently instituted suit since the provisions contained in Sec. 10 of CPC are
mandatory, and no discretion is left with the court.” Additionally, In the case Pukhraj D. Jain v. G.
Gopalakrishna [(2004) 7 SCC 251] The court was of the opinion that “If the court is satisfied that
subsequent suit can be decided purely on the legal point, it is open to the court to decide such suit.”
Object of Section 10 of CPC
1. To Protect the person from multiplicity of proceedings
2. To avoid the conflict of decisions
3. To Prevent Inconvenience to the parties
4. To confine the plaintiff with one litigation

Moreover in the case of Indian Bank Vs Maharashtra State Co-op Marketing Federation Ltd. 1998
SCC 69, it was found that “Order of consolidation of both the suit can be passed.”

Object of Section 11 of CPC

The doctrine of res judicata is based on three maxims:
a) Nemo debet bis vexari pro una et eadem causa ( no man should be punished twice for the
same cause)
b) Interest reipublicae ut sit finis litium (it is in the interest of the state that there should be an
end to a litigation)
c) Res judicata pro veritate occipitur (a judicial decision must be accepted as correct)
Thus, the doctrine of res judicata is the combined result of the public policy reflected in maxims (b)
and (c) and private justice expressed in the maxim (a), and they apply to all judicial proceedings
whether civil or criminal

Exceptions of Section 10 and 11 of CPC

In the case of National Institute of Mental Health and Neuro Sciences Vs C . Parmeshwara, It was
held that “Section 10 applies to trial of suit and not to institution of Suits”
Exceptions to Section 10
1. Suit pending in Foreign Court
2. Summery Suit and
3. Interim order
In the case Raju Ramsing Vasave v. Mahesh Deorao Bhivapurkar, the Supreme Court laid down 3
exceptions to the rule of Res Judicata which are:
I. When judgment is passed without jurisdiction
II. When matter involves a pure question of law.
III. When judgment has been obtained by committing fraud on the Court.

Constructive Res judicata

It is artificial form of res judicata and provides 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 that plea against the
same party in a subsequent proceeding with reference to the same subject-matter

Rules Relating to Constructive Res Judicata

Rule I – When the rights claim in the both suits are same , the subsequent is barred by res-judicata.
Rule 2 – If the matter which forms the grounds of attack in the subsequent suit could have been
alleged as a ground of defence in the former suit , but was omitted to be alleged in that suit, , it will
deem to have been matter directly and substantially in issue.
Rule 3- Where the right claimed in the subsequent suit is different from that in former suit and it is
claimed under different title , the subsequent suit is not barred.
Rule 4- The principle of res judicata will not applicable where a particular plea was not permitted
by law

Similarities and Distinctions of Res Judicata and Res Sub judice

Similarities: -
1. In both two suits requires
2. In both Two same parties requires
3. In both same Subject matters requires
4. In both Matter must be directly and substantially in issue.

Distinctions:-
1. In case of Res-Subjudice, there must be two suits, one previously instituted where as incase
of Res- Judicata there must be an end to litigation.
2. In case of Res-Subjudice, the previously instituted suit must be pending in the same court in
which the subsequent suit was brought or in a different court having jurisdiction to grant the
relief claimed. On the contrary, the former suit must have been a suit between the same
parties or between parties under whom they or any of them claim.
3. In case, of Res-Subjudice, such parties must be litigating in both the suits under the same
title. In case of Res- Judicata, such parties must have been under the same title in the former
suit.
4. In case of Res-Subjudice, it can be waived by parties to the suit with either mutual consent.
 In case of Res- Judicata, it has universal and general application thus it cannot be waived
with the consent of the parties to the suit.
5. In case, of Res-Subjudice, defence cannot be taken in written statement. In case of Res-
Judicata, defence can be taken in written statement.
6. The doctrine of Res-judicata is contained in section (11) of C.P.C, which provides when
and how it can apply, while the doctrine of Res-subjudice is contained in section (10) of
C.P.C, which provides when and how it can apply.