1.

2 Jurisdiction; section 9;
Under section 9 of the CPC a civil court shall have jurisdiction to try all suits of civil nature
unless they are barred expressly or impliedly.
Thus the civil court has jurisdiction to hear and try all suits of civil nature unless its jurisdiction
is barred expressly or impliedly.
EXPLANATION; 1; a suit in which the right to property or office is contested . It is immaterial
that such right depends entirely on decision of a question as to religious rites or ceremony.
EXPLANATION 2; For the purposes of this section it is immaterial whether or not fees are
attached to the office referred to in Explanation 1 or that such office is attached to particular
place .

CONDITIONS; A CIVIL COURT has jurisdiction to try a suit if the two conditions are fulfilled;
a. The suit must be of a civil nature.
b. Then jurisdiction of the court should be expressly or impliedly barred.

SUIT OF A CIVIL NATURE;

A suit is said to be of a civil nature if the main issue of the disputes relates to the determination
of a civil right .If the main issue of the dispute relates to the determination of caste , religious
rites, ceremonies morality than it is not a suit of a civil nature .
The word civil has no where been defined under the code but in the general sense it means the
private rights and remedies of party as distinguished from criminal or political.
The word nature means the fundamental or essential qualities of a person or thing. It is the
identity or character of a person or a thing.
Thus a suit is of a civil nature if the main question to be determined by the court is pertaining to
a civil right and its enforcement. It is not the status of the parties but the subject matter of the suit
which determines that the suit is of a civil nature or not.
The expression suit of a civil Nature will cover suits related to rights and obligations of citizen.
Political and religious issues don’t Fall under this category. If in a suit the main question is to
determine the caste or religion than it is not a suit of a civil nature. However if the main question
to be decided is the determination of a right to property or office and it depends upon the
decision of a question related to a religious rite or ceremonies then it is a suit of a civil nature .
Prior to the amendment of the code in 1976 there was difference of opinion among different
High Courts when the main question was the right to property or office and fees was attached
to it or not. Then after the amendment now it has been settled that in determination to a right to
property or office it is immaterial whether there is fees
attaché d to it or not . This has been achieved by adding Explanation 2.

TEST [JURSIDICTION];
A suit is of a civil nature if the main question to be decided s a right to property or office. It is
immaterial whether the decision depends on some religious rite or ceremony.
The following are suits of a civil nature;
1. Suits relating to right to property.
2. Suits relating to right to worship.
3. Suits relating to right to take out religious processions.
 4. Suits relating to right to a share in offerings.
5. Suits relating to damages for civil wrongs.
6. Suits relating to specific performance of contact or breach of contract.
7. Suits relating to specific relief.
8. Suits relating to restitution of conjugal rites.
9. Suits relating to dissolution of marriage.
10. Suits relating to rents.
11. Suits relating to accounts.
12. Suits relating to Franchise.
13. Suits relating to hereditary office.
14. Suits relating to wrongful dismissal from service and for salary.

The following are not suits of a civil nature;

1. Suits relating to caste.
2. Suits relating to some religious rite or ceremonies.
3. Suits relating to mere dignity or honour.
4. Suits relating to recovery of voluntary payments or offerings.
5. Suits relating to expulsion from caste.
The court has jurisdiction in suits that re of a civil nature unless it is barred expressly or
impliedly.
SUITS EXPRESSLY BARRED
A suit is said to be expressly barred if any statue or enactment bars it for the time being in force.
It is open to the legislature to bar the jurisdiction of a civil court but in doing so it must take care
that it does not go against any provision of the constitution.
If there is any doubt whether the jurisdiction of the court is to be ousted then the interpretation is
to be made in favour of the court having jurisdiction.
BHARAT KALA BHANDAR V/S MUNICIPAL CORPOARTION [ AIR 1966] The SC held
that in case of doubt whether the court has jurisdiction or not the interpretation must lean to the
court having jurisdiction.
The court has no jurisdiction in matters falling under jurisdiction of Revenue Courts or under the
Criminal Procedure Code or dealt with Special Tribunals under relevant statutes as Income tax
tribunal, election tribunal, Motor Accident claim tribunal, or by domestic tribunals as Bar
Council, Medical Council, University , Club etc.
If the remedy provided by the special tribunal is inadequate and all questions can’t be decided by
the tribunal then the jurisdiction of the court is not barred.

SUITS IMPLIEDLY BARRED;

A suit is said to be impliedly barred when it is barred by the general principles of law. Where a
specific remedy is given by a statute it thereby deprives the person who insists upon a remedy
other given by the statue.
Sometimes the jurisdiction of civil court is barred on basis of public policy. For example no suit
can be filed for recovery of costs in a criminal prosecution or against the acts of a judge in the
course of their duty. In the same the courts have no jurisdiction to decide cases of political
nature.
WHO MAY DECIDE; It is the inherent power of a court to decide whether it has got jurisdiction
to try the suit or not.
BURDEN OF PROOF; Generally it the party which asserts a matter on who the burden of
proof lies. But in the matter of jurisdiction the burden of proof is on the party that claims that
the court has no jurisdiction. So when a party objects to the jurisdiction it must prove it.

LACK OF JURISDICTION AND IRREGULAR EXERCISE OF JURISDICTION;

It is a well settled principle that jurisdiction can neither be given nor taken away from a
court. If a court as no jurisdiction but still it adjudicates upon a matter then the order or
judgment passed by the court will be null and void. Even though the order or judgment may
be precise and technically correct but still it will have no value in the eyes of law. Lack of
jurisdiction is a fundamental defect and even if the parties give their consent the defect can’t
be cured.

If a court has no jurisdiction to adjudicate but still it carried on and decides the case then such
a decision or decree is null and void and the defect can’t be cured in any way by taking
alternative steps. However if a court has jurisdiction but it exercises it irregularly then this
defect can be cured by the aggrieved party in an appeal or revision. Lord Hobhouse has
quoted ,’ A court has jurisdiction to decide wrong as well as right .If it decides wrong the
aggrieved person can party can take the course prescribed by law for setting it right and if
that course is not taken the decision however wrong cant be set right .
MATHIA V/S VARKEY VARKEY;[AIR1964 S.C]; It was contended that the decree
passed by the court was null as it was time barred. But the SC held that the suit was time
barred but the jurisdiction of the court was not barred. So it had exercise its jurisdiction
irregularly and in such a case the aggrieved party ahs option to go in appeal. But if the defect
is not corrected the decree will hold good and can’t be challenged that it is a nullity.

BASIS TO DETERMINE JURISDICTION ; It is a well settled principle that the jurisdiction

of a court is decided on the basis of the averments made in a plaint.

Thus the jurisdiction of a court should be decided on basis of the case put forward by the
plaintiff in his plaint and not on basis of the defendant in his written statement .

ABDULLA V/S GALAPPA [AIR 1985 S.C]; The plaintiff filed a suit for declaration of title
,for possession and for mesne profit against the defendant . It was alleged that the defendant was
a trespasser. The defendant contested the case on basis that the court had no jurisdiction as he
was a tenement and the revenue court had jurisdiction. It was alleged that on seeing the plaint
the case had been filed against the defendant as he was a trespasser so a suit against a
trespassed can only be field in a civil court and not in a revenue court .

If the case is filed the court checks its jurisdiction and if it is found that the court has no
jurisdiction on basis of territory or local limit or no pecuniary jurisdiction then the plaint is
returned to the plaintiff for being fields in a proper court but if the defect lies in fact that the
court has no jurisdiction as to subject matter then the suit is dismissed.
 GENERAL PRINCIPLES; [Jurisdiction];

From various decisions made by the SC the following principles may be laid down as regard
to jurisdiction;

1. A civil court has jurisdiction to try all suits unless they are barred expressly or impliedly.
2. The jurisdiction can neither be given nor taken away even if the parties consent.
3. A decree passed by a court without jurisdiction is null and void. It can be challenged at
any stage and even in execution proceedings.
4. There is difference between irregular jurisdiction and without jurisdiction. if a court has
jurisdiction but it exercises it irregularly then this defect can be cured by the aggrieved
party in an appeal or revision.
5. Every court has inherent power to decide the question of its own jurisdiction.
6. The jurisdiction of a court depends on the case put forward by the plaintiff in his plaint
and not on the defendant in his written statement.
7. For deciding the issue of the jurisdiction the matter is important not the form in which it
has been presented.
8. Every presumption should be made in favour of the court having jurisdiction.
9. A statue ousting jurisdiction of court should be strictly interpreted.
10. Burden of proof of exclusion of jurisdiction is on the party who asserts it.

KINDS OF JURISDICTON;
Jurisdiction of a court may be divided into the following classes;
1. TERRITORIAL OR LOCAL JURISDICTION; every court has its own local or territorial
limits within which it may exercise its jurisdiction. The Government has power to fix
these limits. The District Judge has to exercise his jurisdiction within his district and not
outside. In the same way a High Court has to exercise its jurisdiction within the State in
which it is situated and not outside. The High Court has jurisdiction within the territory of
its state and not outside. A court has no jurisdiction to try a suit related to immoveable
property situated outside its local limits or territory. Thus the court may exercise the
jurisdiction within its local limits and not outside it.

2. PECUNIARY JURISDICITON; There is a pecuniary limit of each court. The value of

the subject matter of the suit should not exceed the pecuniary limit of the court. The Code
provides that the court shall have jurisdiction in those suits in which the value of the
subject matter does not exceed the pecuniary limits of the court. Some of the courts have
no limit to its pecuniary power or limit for example the High Court and District court has
pecuniary limit. But there are other courts that have a jurisdiction to a particular amount.
A Presidency small cause court cannot entertain a suit in which the amount exceeds Rs.
1000. In the same way courts in Delhi H.P Haryana and Punjab a Sub Judge 3 rd class can
hear cases in which the value of subject matter is up to Rs,5000, a Sub judge 2 nd class as
pecuniary jurisdiction up to Rs 10,000 and thereafter a Sub Judge 1 st class, District
judge can hear cases above Rs 10,000 and there is no upper limit . But now there are
 two types of Civil Judges . Civil Judge Junior Division has pecuniary limit to hear cases
up to Rs 25000 and after three years he becomes a Civil Judge Senior Division and has
unlimited pecuniary jurisdiction.

3. JURISDICTION AS TO SUBJECT MATTER; Different courts have different

jurisdiction and this depends on the subject matter. There are certain courts which have
no power to entertain certain types. The Presidency small cause courts has no jurisdiction
to try suits for Specific Performance of contract, partition of immovable property
,foreclosure of redemption of a mortgage etc .In the same way in the matter of
testamentary matters ,divorce cases probate proceedings in solvency proceedings etc
the District Judge or Civil Judge [Senior Division] has jurisdiction.

4. ORIGINAL AND APPEALLATE JURISDCITON; the jurisdiction of a court may be

classified as original and appellate. In the original jurisdiction the court entertains, tries
and decides suits. In the appellate jurisdiction a court entertains and decides appeals.
Munsif’s courts Courts of civil Judge s and Small causes courts have original jurisdiction.
The District Judge and the High Court have original and appellate jurisdiction.

1.3 PLACE OF SUING;

There are different types of suits. They may relate to moveable or immoveable property. They may be
on basis of a contract or tort. They may be pertaining to matrimonial disputes or suits for
accounts. The jurisdiction of the court to hear and decide depends on various factors and the first and
foremost the he place of suing. Section 15 to 20 is related to a place of suing or where the suit is to be
instituted.

Section 15 requires the plaintiff to file the suit at the lowest grade of competent court. Sections 16 to 18
deal with suits relating to immoveable property. Section 19 is regarding compensation for wrong to a
person and moveable properly. Section 20 is a residuary section and deals with all matters not covered
under section 15 to 19.Section 21 deals with defect to a territorial or pecuniary jurisdiction of court.
Under section 21 A substantive suits for stetting aside a decree passed for lack of Territorial jurisdiction
can’t be passed.

PECUNIARY JURISDICTION;

The general rule is that every suit shall be filed in a court of the; lowest grade.
However this is a general rule and only a procedure. Thus if the decree is passed by a court with a
higher grade can’t be null as it has not been passed by a court with lowest grade. It is merely an
irregularity and the decree passed is not a nullity .
Kiran Singh v/s Chamman Paswan [AIR 1954] The SC held that if the decree is passed by a court of
higher grade than it is merely an irregularity covered under section 99 of the code[pertains to appeals].
And the decree passed is also not a nullity.
 OBJECT; The object of the rule that the suit is to be filed in the court with the lowest gradation is
twofold as under;
1. To save the court with a higher grade from being over burdened with work.
2. To give convenience to the parties who have to examine their witnesses in such suits.

FOR EXAMPLE; The city civil court and the small cause court both have original jurisdiction. Now
suppose the small cause court has a jurisdiction up to Rs 50,000 and the a suit for recovery of Rs 4500
is filed in the City civil court and a decree is passed by the court .Now in this particular case the case
should have been filed in the court of the Small cause but still the decree passed by the City civil court
is not a nullity.

POWER AND DUTY OF THE COURT; when the suit is filed the plaintiff values the suit and generally
the court accepts the valuation and proceeds on with the case. However this does not give the plaintiff
to fix any value of the case arbitrarily and file the case in a court that suits him. If the plaintiff under
values or over values the suit then it is the duty of the court to return the plaint and order the plaintiff to
file it in a proper court. Balgonda v/s Ramgonda [ 1969 ] Bombay LR ; If the court thinks that the
valuation of the suit has been falsely made to bring it in the jurisdiction of the a particular court it a
order the plaintiff to prove that the valuation is correct .
The court may if it finds that the valuation is arbitrary and unreasonable. But if the court is not able to
arrive at a proper decision it may accept the valuation as made by the plaintiff.

TERRITORIAL JURISIDICTION;
TYPES OF SUITS; For the purposes of territorial jurisdiction there are four types of suits.

i. Suits in respect of immovable property.

ii. Suits for moveable property.
iii. Suits for compensation for wrong [ tort]
iv. Other suits.
IMMOVABLE PROPERTY; Sections 16 to 18 deal with suits related to immovable property. Clauses [a]
to[e]of section 16 deal with the following types of suits;

v. Suits for recovery of immovable property.

vi. Suits for partition of immovable property.
vii. Suits for foreclosure or sale or redemption of mortgaged property or charge upon immovable
property.
viii. Suits for determination of any other right or interest in immovable property.
ix. Suits for tort to immovable property.
These suits must be filed in the local limits of a court in whose territory the immoveable property is situated.
This is very simple and clear but what will happen if the property is situate within the jurisdiction of one or
more courts. The answer is contained in section 17 which says that if the suit is tort or damage to as
immoveable property that is situate in jurisdiction of one or more courts then the suit may be filed in any
court where a part of the property is situate .But the suit should be also within the pecuniary jurisdiction of
the court .
However if there is a case where the property is situate in the local limits of one or more court and it is
difficult to say in which curt the jurisdiction lies then in such case of uncertainty any of he courts after
recording a statement to this effect may proceed with case .
MOVABLE PROPERTY; SECTION 19; It has been said that moveable property follows a person. A suit for
wrong to a moveable property may be filed at;
i. The place where the wrong is committed.
ii. Or at the place where the defendant resides or carries out some business trade or profession
or personally works for gains.
Where the wrong consists of a series of acts committed at different places than the suit may be filed at the
option of the plaintiff at any of the places where the wrong was committed. Were the wrong was committed
at one place but the consequence occurred at some other place than also the plaintiff has option to file the
suit either at the place where the wrong was committed or the place where the consequence took place .
FOR EXAMPLE;

iii. A, residing at Delhi commits a wrong to the movable property of B at Calcutta. Now B has the
option to file the suit against A either at Delhi or at Calcutta.
iv. A residing at Delhi publishes defamatory statements against B at Calcutta and the newspaper
is circulated at Patna, Bombay, and Bangalore. Now B may file the suit either at Delhi or
Calcutta or Patna or Bombay or Bangalore.

Compensation for wrong [section 19]; A suit for wrong committed against a person
[Tort] may be filed either at the place where the wrong was committed or the place where the
defendant resides or where the defendant carries out trade profession or personally works for gains.

OTHER SUITS [SECTION 20] ; Under section all other suits that are not covered by the above said
section may be filed at the following places at the option of the plaintiff;
3. Where the case of wholly or partly arose
4. Were the defendant resides or carries on trade profession or business or personally works for
gains .
5. Where there are two more defendants then at the place where any one of them resides or carries
out trade profession or personally woks for gains but for this the leave of the court has to be taken
.And if the defendants don’t reside or carry on trade profession or business or personally work for
gains then acquiesce. [to accept]

ILLUSTRATION;
6. A is a trader and lives in Delhi. B is another trader who carries on trade at Calcutta . Now A with
the help of his agent books some goods from B and asks him to deliver the goods at a transport
company in Calcutta. Accordingly B delivers the goods to the transport company as directed by A.
Now in case of a dispute A may file the suit either at Calcutta where the cause of action arose or at
Delhi where A resides and carries on trade.
7. A is a trader at Pune , B at Delhi and C at Kanpur.A B nad C are together at Simla . B and C
execute a pro note in favour of A at Simla and promise to pay him back Rs 1.5. Lakhs on demand.
Now if there is a dispute A may file the case either at Simla or Delhi or Kanpur. If the nonresident
defendant objects than the plaintiff may proceed with the leave of the court.

Section 20 has been enacted so as to bring justice to the very hearthstone of the defendant
and the defendant may be saved from travelling very far in order to defend the case.
SELECTION OF FORUM;

It is a well settled principle that jurisdiction can neither be given nor taken away from a court. If a court has
no jurisdiction but still it adjudicates upon a matter then the order or judgment passed by the court will be
null and void. Even though the order or judgment may be precise and technically correct but still it will have
no value in the eyes of law. Lack of jurisdiction is a fundamental defect and even if the parties give their
consent the defect can’t be cured. In the same if a court has a jurisdiction then that jurisdiction can’t be
taken away even if the parties give their consent that the court will have no jurisdiction. Further if there are
two jurisdictions where the suit may be filed then the parties may mutually agree that which court will have
the jurisdiction.
JURISDICTION AS TO SUBJECT MATTER ;

Different courts have different jurisdiction and this depends on the subject matter. There are certain courts
which have no power to entertain certain types. Presidency Small cause court has no jurisdiction to
entertain suits for redemption of mortgage, Suits for specific performance of contract or for Partition of
Immovable property. In the same way The District Judge or Civil Judge [ Sr Division ] as jurisdiction to try
suits that are testamentary , Matrimonial disputes , or Insolvency proceedings.

Where a court has no jurisdiction as to subject matter then it is an inherent lack of jurisdiction and in such
case if the court proceeds to pass decree it will be a nullity . The decree will have no value in the eyes of
law.

OBJECTIONS TO JURISDCTION [SECTION 21];

General; It is a basic principle that a decree of a court without jurisdiction is a nullity. It

has no value in the eyes of law. However the objection that a court has no jurisdiction in
the matter of territorial or pecuniary jurisdiction is merely a technical objection, But this
objection can’t be raised for the first time in an appeal or revision. It has to be raised at
the very preliminary stage of suit.
OBJECT; The object of this section s to protect a honest litigant and to protect a-
plaintiff who in good faith and bona fide interest has filed the suit in the court under the
impression that the court has jurisdiction .
OBECTION AS TO TERRITORIAL JURISDICTION; It is a well settled principle that the
objection to the territorial jurisdiction does not stand at the same footing as the
competence of the jurisdiction of the court. The lack of competence of jurisdiction is a
serious matter and goes to the very root of jurisdiction. Thus it is an inherent defect and
the decree passed in such a case will be null.
However the objection to the local limits of jurisdiction can be waived under section 21
of the code.
Hira Lal Kali Nath [ AIR 1966 S.C.] ; The case was to be filed at Agra but was filed at
Bombay High Court with the leave of the court . It was held that no objection as to the
local limit of the court could be raised and section 21 applied.
Under section 21 the objection to the territorial jurisdiction can be raised in an appeal or
revision only of the following three conditions are satisfied;
i. The objection must have been taken at the court of first instance.
ii. The objection should be taken at the earliest possible stage that is in the case
where issues are to be settled then at the time of settlement of issues or
before the settlement of issues.
iii. There has been consequence of failure of justice.
It is a well settled principle that jurisdiction can neither be given nor taken away from a
court. If a court has no jurisdiction but still it adjudicates upon a matter then the order or
judgment passed by the court will be null and void. Even though the order or judgment
may be precise and technically correct but still it will have no value in the eyes of law.
Lack of jurisdiction is a fundamental defect and even if the parties give their consent
the defect can’t be cured. If the defendant does not object at the first instance or the
earliest stage then it is deemed that he has waived his right.
B.P and Com, Ltd v/s Pappu [AIR 1966 S.C.] It was held that a long participation in the
suit without raising an objection to the local limit will be deemed that the party has
waived its right and has no objection regarding it.

Kiran Singh v/s Chamman Paswan [AIR 1954] The S.C held that if a case has been
tried by the court on merits and the judgment should not be reversed merely on
technical grounds. The objection to lack of territorial or pecuniary jurisdiction is a
technical defect and if the party has not been prejudiced then this objection can’t be
taken at the appellate stage.

Pathumma v/s Kutty [AIR S.C. 1981] ; The objection to place of suing may be
raised at the appellate stage also if the case has not been decided on merits.

OBECTION AS TO PECUNIARY JURISDICTION; when the suit is filed the plaintiff

values the suit and generally the court accepts the valuation and proceeds on with
the case. However this does not give the plaintiff to fix any value of the case
arbitrarily and file the case in a court that suits him. If the plaintiff under values or
over values the suit then it is the duty of the court to return the plaint and order the
plaintiff to file it in a proper court. Further the defendant also has a right to object to
valuation of the suit. But this objection can’t be raised at the appellate stage or in
revision. For raising an objection t0on the pecuniary jurisdiction the defendant has
to;

i. The objection must have been taken at the court of first instance.
ii. The objection should be taken at the earliest possible stage that is in the case
where issues are to be settled then at the time of settlement of issues or
before the settlement of issues.
iii. There has been consequence of failure of justice.

ILLUSTRATION;
A , files a suit for possession of a house against B. The suit is filed in the
court C . The court has a jurisdiction of Rs 10,000 but the market value of the
house is Rs 12,000. Now the defendant B does not object to the valuation of
 the suit. But in an appeal he raises this objection. This will not be allowed in
appeal as per section 21.
However if it proved that the defendant had been prejudiced then the objection may
be raised in an appeal or in revision. The fact that the person has been prejudiced
depends upon the facts of each case.

OBECTION AS TO SUBJECT MATTER JURISDICTION; Where a court has no

jurisdiction as to subject matter then it is an inherent lack of jurisdiction and in such case
if the court proceeds to pass decree it will be a nullity. The decree will have no value in
the eyes of law.

This can be challenged in appeal or in revision and the decree can be set aside.
Even a collateral proceeding can be started to set aside this decree.

OBECTION IN EXECUTION PROCEEDINGS; Prior the 1976 amendment section

21 did not apply to execution proceedings but still the SC in the case
Hira Lal v/s Kali NATH [air 1962 SC] has held that the section applied to execution
proceedings also.

After the 1976 amendment sub section [3] to section 21 has been added and it make
it clear that the objection can be raised in execution proceedings also pertaining to
subject matter .

1.4 RES SUBJUDICE [SECTION 10 CPC]

Section 10 deals with civil suits. It provides that no court shall proceed with the trail of
any suit in which matter in issue is directly and substantially in issue in a previously
instituted suit between the same parties and that court in which the previous suit is
pending is competent to grant relief in the new suit.
NATURE AND SCOPE;
Under section 10 of the CPC no court shall proceed with the trial of a suit in which the
mater involved is directly and substantially in issue in a previously instituted suit
between the same parties and the court in which the previous suit is pending is
competent to grant relief in the new suit .
Under section the bar is on the trial of the suit and not on instituting the suit. Thus we
can file the new suit but the court will stay it. Further the court may grant interim relief.
Indian Bank v/s Maharashtra State Corp [AIR 1998 SC] ; The rule applies to trial of the
suit and not to the institution of the suit . It does not stop the court from passing interim
orders as stay and injunction or appoint receiver.
OBJECT;
The courts have no time. They are already over burdened with work
Thousands of cases are pending therefore the cases where;
1. The courts have con current jurisdiction
2. Cause of action is the same.
3. The subject matter is the same.
4. The same relief is to be granted ,
Then the subsequent suit is stayed. This saves the precious time of the curt and also
checks the courts from giving contradictory decisions on the same issue. The section
helps in checking the multiplicity of cases .It checks in causing inconvenience to the
parties.
Under this section the court has power to stay the trial of the suit and has no power to
stop the institution of the suit.

CONDITON; for applying section 10 the following conditions must be fulfilled;

1. There must be two suits one should be already pending and the other should be
filed later on.
2. The matter in both suits must be directly and substantially in issue.
 3. Both suits must be contested by the same parties or their representatives.
4. The court in which the previous suit is pending should have jurisdiction to
entertain and grant relief in the second suit.
As soon as the above conditions are fulfilled the court where the new suit is pending
stays the trail of the suit. The condition is mandatory and not discretion of the court.
Manohar Lal v/s Seth Hiralal; [AIR 1962 AIR S.C]; The application of the section 10
where the conditions are fulfilled is mandatory and a discretion of the court.
Life Pharma [P] Ltd v/s Bengal Medical Hall [AIR 1971 SC] the court in which the
subsequent suit is pending may stay the suit at any stage.
TEST; the test for Applying section 10 is that whether the rule of Res Judicata will apply
or not if the subsequent suit is decided. If the rule of Res Judicata applies then the court
will stay the trail of the suit.
Under section the bar is on the trail of the suit. Thus if a suit in contravention of section
10 is allowed to proceed and the other party does not object and finally a decree is
passed the decree will not be a nullity.

Res Judiciata [SECTION 11];

The rule of res judicata has a very old history .The rule was accepted both by the Hindu law and the Muslim
law. Under the Hindu law it was called Purva Nyaya [old judgement]. The Roman law also respected the
rule of Res Judiacata. The Roman followed the rule of. ‘One suit one decision in any single dispute. ‘
Under CPC section 11 deals with the principle of Res Judiacata. According to section 11 no court shall try a
suit or issue in which the following conditions are fulfilled;
1. There are two suits and the matter is directly and substantially in issue in both the suits.
2. The parties are the same in both suits.
3. Such parties must have been litigating under the same title in the former suit also.
4. The court that determined the former suit should also be competent to try the latter suits also.
5. The mater in issue directly and substantially in the subsequent suit should also have been directly
and substantially heard and decided in the former suit.

EXPLANATION 1; the expression Former denotes that the former suit has been decided earlier than the
latter suit. It is immaterial whether the latter suit was filed prior to the former suit.

EXPLANATION II; For the purpose of this section the competence of the court shall be determined
irrespective whether any appeal can be filed from the decision of such court or not.

EXPLANATION III; the matter above referred should have been alleged by one party and admitted or
denied by the other party. [Expressly or impliedly]
EXPLANATION IV; Any matter which might or ought to have been a ground of attack in the former suit
should be directly and substantially in issue is such suit. [ Constructive Res Judicata ]

EXPLANATION V; any relief claimed in the plaint of the suit is expressly not granted by the decree shall be
assumed for the purpose of the section to have been refused.

Illustration;
1. A filed a Suit for Recovery for Rs 10000 against B. He prayed for a decree and interest at the rate
of 12 % PA. and also asked for costs and litigation expenses. The court passed a decree for Rs
10000 and also ordered B to pay A interest at the rate of 12% PA. but remained silent on the
matter of costs and litigation expenses. It means that the curt had refused to award litigation
expenses.

EXPLANATION VI; When the person litigate bona fide for a public right or a private right claimed in
common for themselves and others then for the purpose of this section it will be deemed to claim under
the persons so litigating.

EXPLANATION VII; the provisions of this section are also applicable to execution proceedings al so.
Illustration;
1. A had filed a suit for recovery of Rs 10000 against B .Now the suit was decreed and so A filed
execution proceedings. B had no property and owned only Rs 5000. So A agreed to tae the
amount of Rs 5000 only . The execution proceeding was decided .After some time B got a legacy
.Now A against filed a new execution proceeding on basis of that very decree. Here Res Judiacta
would apply

1. EXPLANATION VIII; An issue heard and decided by a court of limited jurisdiction but competent
to decide the issue shall operate Res Judicata in a subsequent suit even if the court with less
jurisdiction was not competent to try the subsequent suit in which the issue has been subsequently
raised.

In simple words we can say that it is immaterial whether the former court has no jurisdiction to try the
latter suit or not . Res Judicata would apply

Illustration;

2. Suppose a suit for possession was filed by A against B in the year 2008 in a court that had
pecuniary jurisdiction of Rs 25000. At that time the value of the [property was Rs 15000. It was
decreed. Then in the year 2022 once again A filed a Suit for possession against B for the same
property . But now the value of the property had risen to 25Lak. Thus this suit could not be filed on
the former court whose jurisdiction was limited to Rs 25000.Hence this was field in a court that had
jurisdiction for deciding cases of Rs 25 lak. The plea of Res judiacta did not apply because the
former court had no concurrent jurisdiction. Here the value of the property had risen but the
jurisdiction of the former court was still Rs 25000. Thus to overcome such a situation Explanation
VIII was inserted, Hence it is immaterial whether the former court has no jurisdiction to try the latter
suit. Res Judicata would apply because it is immaterial whether the Former court has jurisdiction to
try the latter suit or not .
 CONDITIONS;
Under section 11 the following conditions should be fulfilled;
1. The matter must be directly and substantially in issue was either actually or constructively in the
former suit.
2. The former suit should have been a suit between the same parties or parties under whom they or
any one of them claim.
3. Such parties’ should have been litigating under the title in the former suit.
4. The court that decided the former suit was competent to try the subsequent suit or a suit in which
the issue was raised.
5. The matter directly and substantially in issue in the subsequent suit should have been heard and
finally decided in the former suit.

OBJECT; the doctrine of Res judicata has three objects as under;

1. No man should be vexed twice for the same offence.
2. It is in the interest of the State that there should be an end to litigation.
3. A judicial decision should be accepted as correct.

ILLUSTRATION;
A sues B for damages for breach of contract. The suit is dismissed. Now a subsequent suit by A for
damages of beach of same contract is barred. The claim of A for damages for breach of contract has been
decided in the previous suit and so it can’t be tried in the subsequent suit. B can’t be vexed twice for the
same case [breach of contact]. Moreover public policy requires that should be an end to a litigation and
hence the decision must be accepted as correct or else every decision will be challenged on the ground
that it is not correct and there will be no end to litigation.

MATTER DIRECTLY AND SUBSTANTIALLY IN ISSUE;

A matter that is directly and substantially in issue will operate as Res Judiacata in the subsequent suit.
DIRECTLY; it means at once or without intervention. There is no hard and fast definition to distinguish a
matter which is directly in issue. It depends on facts of each and every case. However the term Directly has
been used in contradiction to collaterally or incidentally.
SUBSTANTIALLY; It means essentially or materially or in a substantial manner. It is nothing short of
certainty but more than suspicion. A matter is said to be substantially in issue if important for the
decision of the case.
There is no universal rule to find when the issue is substantially. It is the conduct of the parties that
determines whether the issue is substantial or not.
ILLUSTRATION;
1. A sues B for arrears of rents. B claims that no rent is due to him. Here the relief claimed is in the
form of rent. Therefore the claim of rent is directly and substantially in issue.
2. A sues B on basis of a sale deed. B claims that the sale deed is fictitious. The court declares the
sale deed fictitious and the suit is dismissed. Now A brings another suit for some other property on
 basis of the same sale deed . Here the second suit is barred as the fictitious nature of the sale
deed was directly and substantially in issue in the former suit.
Thus whether an issue is directly and substantially in issue depends on many factors and no universal rule
can be set for it. It may depend on decision of an issue that would materially affect the decision of the suit.
It may depend upon question with reference to a plaint, written statement, issues, and judgment. It depends
on the facts of each case.

V.Yeshwant v/s Silkandarkhan [AIR 1963 S.C] where there are more than one issues and each of the
issues are important for the final decision of the case then each such issue is directly and substantially in
issue and will operate as Res Judiacata

ILLUSTRATION;
1. A sues B for
i. For the title of certain lands.
ii. For the rent of those lands.
Now B denies the title of A over the land and also denies that any arrears of rent are payable
by him. Here there are two issues first the title of the land and second the rent of those lands.
Thus both these matters are directly and substantially in issue.
2. A sues B for arrears of rent for the year 2005 -06. B denies that rent is payable but his peal is
dismissed and the suit is decreed. Now A files another suit also for arrears of rent for the arrears of
year 2007-08. B takes the plea of Res Judiacata. But as in the former suit the decision was only
for the year 2005-06 and not for all the years so the principle of Res Judiacata will not apply.

SAME PARTIES;

The parties should be the same in the former as well as the subsequent suit. The parties must be the
same or between the parties under whom they have claimed. Res Judicata affects the parties to the
suit and also the persons claiming under them or persons representing them.

If the parties in the subsequent suit are different then the principle of Res Judicata does not apply.

ILLUSTRATION;

1. A sue B for the rent of land. B claims that A is not the landlord. The suit is dismissed. Now if A tries
to sue again through X the rule of Res Judicata will apply.
2. A sues B for rent. B claims that C is the land lord and not A. The suit of A is dismissed. Now A files
another suit against B and C to get his title declared. The rule of Res Judicata will not apply as the
parties are not the same.

PARTY; MEANING ; a party is either a plaintiff or defendant. I f the name of a person appears on the final
record of the suit then he is a party. Thus where the name of a person has been struck off or a person is
discharged than he is not a party. However if the name of a person is on the final record due to some error
then he is not a party.

Res Judicata between Co Defendants;

 The way a matter is res Judicata between the plaintiff and the defendant in the same way a matter may
be res Judicata between the co defendants. However the following conditions will apply
a. There must be a conflict of interest between the defendants.
b. The conflict should be necessary to decide in order to give relief to the plaintiff.
c. The question between the co defendants should have been finally decided.
d. The co defendants were necessary or proper parties in the former suit.

ILLUSTRATION;

A sues B, C and D to settle a claim. The court interprets a will. The defendants have their own claim
based against each other on the will. Now in future if any of the defendants tries to file a suit against
any of the defendants pertaining the will it will operate as Res Judicata.

RES JUDICATA BETWEEN CO PLAINTIFFS;

The way a matter is res Judicata between the defendants in the same way a matter may be res
Judicata between the co Plaintiffs. However there must be a conflict of interest between the plaintiffs.
The conflict should be necessary to decide in order to give relief to the plaintiff. The question between
the co defendants should have been finally decided.

PRO FORMA DEFENDANTS;

A suit in which no relief is sought against the defendant is a pro forma defendant. A pro forma
defendant is added to a suit because the presence of such a defendant is necessary to decide the final
and complete decisions.

ILLUSTRATION;

A sues B for the possession of a land. A contends that he is the tenant of C. C is joined as pro forma
defendant and no relief is sought against him. Now the suit is dismissed. Later on C files a suit against B
for possession of land on basis of title. B takes the pale of Res Judicata .But this will not apply as in the
former suit no relief was sought against C and he was a pro forma defendant only.

PARTIES UNDER WHOM THEY CLAIM OR ANY OF THEM CLAIM;

The rule of Res Judicata applies not only to the parties but also to the persons who claim under them.
There are two types of person under parties whom they claim or any of them claim;

a. Parties actually present in the former suit.

b. Parties claiming under parties to the suit.
c. Persons represented by a party in the former suit,

ILLUSTRATION;

A sues B for a declaration title to the property. The suit is decreed. Now A sues C for possession of
property. C claims that he is a tenant under B and B is the owner and that he is a tenant under B. The
defense is barred as C is trying to claim through B
SAME TITLE; [CONDITON 3] The third condition for applying Res Judicata is that the parties in the former
suit have contested under the same title as in the subsequent suit.
The expression same title means the same capacity or interest. Thus if in the former suit the party had the
same title or capacity or interest as he has in the subsequent suit then the later suit is barred.
ILLUSTRATION;
1. A sues B for possession of a property. He bases the claim on title. Now if the suit is dismissed
.Later on A tries to file a suit against B on bases of adverse possession for the same property. This
suit will be barred.
2. A sues B for possession of a math in the capacity of a legal heir of the Mahant. The suit is
dismissed. Later on A files a new suit for the possession of the same property but this time he files
the suit in the capacity of a manager. This suit is not barred.
TEST ; The term same title has nothing to do with the cause of action or with subject matter . It is to be
seen in what capacity the party was contesting the former suit. If the right claimed in both suits is the same
then the suit will be barred even though it was sought on a different ground in the former suit.

COMPETENT COURT;
The fourth condition under Res Judicata is that the court that tried the former suit should have been a
competent court to try the subsequent suit as well. Thus if the decision given by a former court in a suit and
the court is not competent to try the subsequent suit then the rule of Res Judicata will not apply.

MEANING OF COMPETENT COURT; In order to apply the rule of Res Judicata the former court should
fulfill the following conditions;
a. It must be a court of Exclusive Jurisdiction. Or
b. It must be a court of Limited Jurisdiction.
c. It must be a court of Concurrent Jurisdiction.
a. COURT OF EXCLUSIVE JURISDICTION; The courts of exclusive jurisdiction are Revenue courts,
Land Acquisition Court and Administrative Courts etc. Thus if a matter that is directly and
substantial in issue in the former case and has been heard and finally decided then the rule of Res
Judicata will apply in the subsequent suit filed in court of ordinary civil jurisdiction.
b. COURT OF Limited JURISDICTION; If the former suit has been finally heard and decided by a
court of limited jurisdiction the subsequent suit shall apply the rule of Res Judicata and it is
immaterial that the former court is not competent to try the subsequent suit. Nabin Majhi v/s Tela
Majhi [AIR 1978 CAL.] The Calcutta High Court held that courts of limited jurisdiction are courts
other than ordinary civil courts such as Revenue courts; Insolvency courts Land Acquisition courts
etc. However a court of limited pecuniary jurisdiction can’t be side to be a court of limited
jurisdiction. This is clear from Explanation VIII which can be interpreted as, if the former court that
decided the former suit has less pecuniary jurisdiction to try the subsequent suit than it will not
operate as Res Judicata.
c. COURT OF Concurrent JURISDICTION; If the court that finally decided the former suit had
concurrent jurisdiction then the rule of Res Judicata will apply if a subsequent suit is filed.
Concurrent Jurisdiction means a court that has Pecuniary as well as jurisdiction of subject matter.
Territorial jurisdiction is immaterial. Nabin Majhi v/s Tela Majhi [AIR 1978 CAL.] In this case it
was argued that the court with less pecuniary jurisdiction is also a court of limited jurisdiction and
as such the rule of Res Judicata will apply. But the negated the argument and held that a court of
less pecuniary jurisdiction is not a court with limited jurisdiction or else the explanation VIII would
become useless.
HEARD AND FINALLY DECIDED; The fifth and last condition for applying Res Judicata is that the former
court should have heard and finally decided the suit. It means that the court should have applied its judicial
mind.

Kashpal v/s Mahesh pal [AIR 1976 SC] The section requires that there should be a final decision on which
the court has applied its mind.

Ambit and scope; the former suit should have been heard and finally decided. If the former suit was
disposed of on technical grounds such as non joinder of parties then the rule of Res Judicata will not apply.
However if the former suit has been decided;
i. Ex parte.
ii. By failure to produce evidence [order17 rule 3]
iii. By a decree on an award.
iv. Oath tendered under Indian Oaths act.
Then the rule of res Judicata will apply.
State of Maharashtra v/s National construction company [AIR 1996 SC]; It was held that if the
former suit has been decided on technical grounds as non joinder of parties than the rule of
Res Judicata is not applicable.

DECISION ON MERITS; In order that the suit should have been heard and finally decided it necessary that
the suit should have been decided on merits. The following are held to be technical grounds;
i. If the former suit was dismissed for want of jurisdiction.
ii. For default of non appearance of plaintiff.
iii. On grounds of non joinder or mis joinder of parties.
iv. On the ground that the suit was not properly framed.
v. On the ground that the suit was premature.
And as such the rule of Res Judicata will not apply.

ILLUSTRATION; A is a partnership firm. It files a suit for recovery against B for recovery of Rs 50,000.The
suit was dismissed as it was not maintainable since the firm was not registered under Indian Partnership
act The firm was then registered as required under the law and a subsequent was failed now the rule of res
Judicata will not apply since the former suit was dismissed on technical grounds.

NECESSITY OF A DECISION; For applying the rule of Res Judicata it is necessary that the finding of the
court should be necessary for the final decision. This means that Res Judicata does not apply on matter
that is not necessary for arriving at the final decision. It also means that the issue in the former suit should
have been directly and substantially in issue in the subsequent suit also. Thus in simple words there must
be a finding and that finding should be necessary to arrive at the final decision. This also means that the
finding should be appealable. Thus if a finding is not appealable then the rule of Res Judicata will not apply.
It is the right of appeal that shows if the finding was necessary or merely incidental.

FINDINGS ON MORE THAN ONE ISSUE;

When a finding is recorded by a court on more than one issue the legal position is as under;
1. If the suit of the plaintiff is wholly decided against him then the defendant will have no right to
appeal as all issues were in his favour and the rule of Res Judicata will not apply in his case but
 every issue that was decided against the plaintiff and on which a n appeal likes will operate as res
Judicata against the plaintiff.
2. If the suit of a plaintiff is wholly decreed I his favour and no issue lies against him on which he can
file an appeal then the rule of Res Judicata is not applicable against the plaintiff but on issues
decided against the defendant the rule of Res Judicata is applicable in the subsequent suit .
3. No appeal lies against a finding if it is not appealable under CPC. The in such cases the aggrieved
party may file a cross objection even though the case was decided in his favour.

CONSTRUCTIVE RESJUDICATA:
Explanation IV of section 11 C.P.C lays down the rule of constructive res judicata. For the application of
constructive res judicata the matter in issue in the subsequent suit must also be the same matter directly
and substantially in issue in the former suit. Explanation IV lays down that any matter that ought to be
ground of attack or defense in the former suit shall be deemed to have been a matter directly and
substantially in issue in the former suit shall be deemed to have been a matter in issue in such suit. The
rule of constructive res judicata makes a party to put forward in the suit all possible grounds of attack or
defense. If the party fails to do so then it can’t raise them in a subsequent suit. Thus if a party that should
have raised some question in former suit fails to raise it then the party is estopped from raising the same
question in a suit between the same parties. In the way where a defendant fails to raise objection in a
former suit then he is barred from raising the objections in the subsequent suit between the same parties.

ILLUSTRATION :
1. A sues B for possession of property on the basis of ownership. The suit is dismissed. After that A
cant claim possession of property as mortgagee because he should have taken that ground in the
former suit.
2. A files a suit against B for declaration that he entitled to certain grounds as he is the heir of C. This
suit is dismissed. Now A can’t file another suit on basis of adverse possession as he should have
taken that ground in the former suit.
3. A files a suit against B for recovery of a loan on basis of a promissory note. B takes the ground
that A had obtained it on basis of un due influence. The suit is decreed against B. Now B can’t take
the defense of fraud or coercion in a subsequent suit between them regarding the same pro note
as B should have taken the defense of fraud or coercion in the former suit ,
State v/s Nawab Hussain; In this case a sub inspector filed a writ petition against his dismissal by the
DIG on the ground that he had not been afforded full opportunity of being heard, The writ was
dismissed, later on the sub inspector filed a suit on additional grounds that he had been appointed by
the IGP and as such the DIG had no power to dismiss him. The court held that the rule of constructive
res judicata applied as the petitioner could have taken the ground in the writ filed by him as it was
within his knowledge.

DIFFERENCE BETWEEN RES JUDIACTA AND ESTOPPEL:

There are some differences between estoppel and res judicata as under:
1. Res judicata is the result if a decision of a court of law. Whereas estoppel is result of action of
parties.
2. The object of res judicata is to bring an end to litigation where as the object of estoppel is to make
a person who has made some representation and on which the other person has acted to stop him
from changing his position.
 3. In res judicata the jurisdiction of a court is ousted where as estoppel is only a rule of evidence and
the parties are not allowed to change their position.
4. The principle of res judicata holds the decision of a court true where as under estoppel a person is
bound to hold however he has stated once as true.

2.1 PLEADINGS;
Order 6 Rule 1 of the code describes pleadings as a plaint or written statement. Plaint is
a pleading of the plaintiff. It is a statement of a claim a document of which the suit is
instituted its object is to state the grounds upon which the plaintiff wants to get relief
from the court. A written statement is the pleading of the defendant .It is a reply filed to
the plaint of the plaintiff. It is the reply to all allegations made by the plaintiff and new
facts in his favour. Sometimes, it is a legal objection to the claim of the plaintiff.
The main object of pleading is to narrow down the parties to a definite issues. In this
way the expenses of both parties are also reduced. Further the time spent on hearing is
also reduced. The following are the rules regarding pleadings:
1. Pleadings must state facts and not law. Thus the existence of a custom or usage
is a fact and must be pleaded .But the question of maintainability is not a fact and
is a question of law so it need not be pleaded. In the same the construction or
interpretation of a contract is a question of law and need not be pleaded.
LAKHI RAM V/S TIKHA RAM [AIR 1998 S.C]; It is the duty of the parties to state the
facts only. It is for the court to apply the law to the facts pleaded.
2. FACTS AND NOT EVIDENCE; The second rule is that the pleadings must
contain only facts and evidence. The pleadings must contain facts on which the
 issues are based of parties and must not contain the evidence that is to prove
the case. There are two types of facts as under;
i. FACTA PROBANDA; the facts required to be proved. It means the
material facts.
ii. FACTA PROBANTIA; They are the facts by means of which the material
facts are to be proved.
Thus in an election petition the plea that cars were used against the law is a
facta probanda and needs to be pleaded. But the facts that the cars were used
for carrying voters or from whom the cars were hired etc are all facta probantia
and need not be pleaded.

BORRODAILE V/S HUNTER; A, was insured with insurance company. One of the
terms was that if the insured committed suicide then the policy w ould be void. A ,shot
himself and a case was filed against the company for the claim .The facts that A
committed suicide is fact probanda and needs to be pleaded. But the fact that A had
been disturbed for weeks and that he had purchased a pistol just be fore his death or
that he wrote a letter to his wife saying that he wanted to kill himself a re all fact
probantia and need not be pleaded.

3. FACTS AND ONLY MATERIAL FACTS; The best rule is that pleadings must
state material facts only. It must state only material facts on which the party
relies for relief for claim or defense .The term material fact has not been
mentioned under the code. It means facts upon which the plaintiff’s cause of
action or the defense of defendant depends. These are facts that are essential
to give relief to the plaintiff or defendants’ defense.

UDHAV SINGH V/S MADHAV RAO SCINDIA; [AIR 1976 SC] All primary facts that
must be proved by party to establish cause of action are material facts.
Failure to mention material facts will result in dismissal of suit. Particular facts give
details. They give finishing touches to material facts.

C.L SAHU V/S GIANI ZAIL SINGH [AIR 1984 SC]; Whether a fact i s or not material
depends upon facts and circumstances of each case .
It is not mere technical error not plead material facts. So if a party fails’ to plead
material; facts then it cant be allowed to give evidence on that facts Non mention of fact
is non pleading of facts and hence no cause of action arises to such a party .

A plaintiff suit on basis of title must state that nature of deed on which he relies.
A files a suit for declaration against B . He relies upon a Deed. He must mention in the
pleading whether it is a Gift or a sale deed
A suit by a corporate signed by a person must show that he has authority to file the
suit.

ABC is a Company duly registered under Indian Companies Act. It files a suit for
Recovery against xyz firm for recovery of debts . Now for this it is essential that the
Board of Directors pass a resolution in favour of an official Mr. T and appoint him
Special Attorney of the company. Thus the suit will read ABC Company through Mr.
its special power of attorney .

4. CONCISE; the facts must be concise but they must state the facts clearly. The
pleadings should be drafted precisely and with brevity .The absence of a specific
plea can put the defendant in disadvantage. He must know what he has to face.
He can’t be k ept guessing at the cost of vague pleadings. So the rule is that
pleadings must be precise, specific and unambiguous. The pleadings should be
divided into paragraphs. Each allegation should be raised in separate paras.
Dates sums and figures should be in figures.

OTHER RULES; some other rules apart from the above mentioned rules.
1. In case of misrepresentation, fraud breach of trust facts are to be specifically

mentioned. Thus in a case of contract where the other party has made a breach
of duty then the fact must be clearly mentioned in the pleading. What particulars
are to be pleaded depend upon the circumstances and facts of each case.
2. The main object of pleading is to narrow down the parties to a definite issues. So

each party should be well aware of nature of testimony it has to produce. A vague
or general plea can never serve this purpose. The other side should not be taken
by surprise. Thus if the particulars are insufficient and not specific then the court
before proceeding on with the trial make s ure that the other is given notice about
the side that is going to set up.
3. The main object of pleading is to narrow down the parties to a definite issues.

However there is no need to mention the performance of precedent conditions. It

is only to be pleaded when there is non performance of a condition precedent.

4. The party is not allowed to make departure from the pleadings . Thus if the party

wants to lead evidence on any facts that it ahs not pleaded then the first thing to
do is to get the plaint of written statement amended under the prescribed rules .
5. A bare denial of contract by the opposite party will be understood only a denial of

contract and it cant be interpreted that the contract is not enforceable or not valid
etc.
6. Contents of the documents need not to be mentioned on the pleadings unless the

words therein are material.

7. In case Malice fraudulent intention or knowledge that show the state of mind of a

person a mere mention in the pleadings is sufficient and the circumstance from
where it is proved need not be pleaded because this is matter of evidence and
not a material fact .
ILLUSTRATION; In a suit for recovery based on a promissory note it is sufficient
to mention that the defendant wanted the loan as she had to marry his daughter
and it need not pleaded that he was desperate and had visited the other money
 lenders and banks for the loan also and as such was ready to pay any amount
of interest .
8. Where the party is required to give notice prior to institution of suit then it must be

mentioned but there in no need to mention give the from of notice or from where
it is inferred that such notice is mandatory .

ILLUSTRATION; Under section 80 CPC it is mandatory to serve the Govt with legal
notice. Thus in the plant the plaintiff may just mention that the notice has been
served. It is not needed to state the exact words of notice or reproduce it in the
pleadings.

9. Implied contracts or personal relations may be pleaded as a fact and not in series

of letters or conversation or circumstances from where it can be inferred.

10.Facts that the law presumes need not be mentioned facts where the burden of

proof lies on the other party may not be pleaded.

11.Forms in appendix A should be used where they are applicable. If not applicable

similar forms may be used.

12.The pleadings should be divided into paragraphs. Each allegation should be

raised in separate paras.

13.Dates, sums and figures should be in figures and in words also.

2.1 PLAINT:
MEANING: The term plaint has not been defined under the code. :. It is a pleading of
the plaintiff. It is a statement of a claim a document of which the suit is instituted its
object is to state the grounds upon which the plaintiff wants to get relief from the court
Particulars: Every plaint contains the following particulars:
1. The name of the court where the suit is filed.
2. The name description and residence of the plaintiff and defendant.
 3. Where the plaintiff or defendant is a minor or of unsound mind a statement to this
effect.
4. The facts that gave rise to the cause of action and the when it arose.
5. The facts showing that the court has jurisdiction.
6. A statement of the value of subject matter of the suit for the purpose of
jurisdiction and court fee.
7. The relief claimed by the plaintiff simply or in the alternative.
8. Where the suit has been filed in representative capacity the facts showing that he
has interest in the subject matter and he has taken steps that enable him to file
the suit.
9. Where the suit is recovery of money the amount claimed.
10. Where the plaintiff has allowed a set off or relinquished an amount then the
amount that has been set off or relinquished.
11. Where the suit is for accounts or mesne profit or for moveable property in
possession of defendant or for debts which can’t be determined the approximate
value thereof.
12. Where the suit property is immoveable a description sufficient to identify it that
the boundaries numbers etc.
13. The interest and liability of the defendant in the subject matter of the suit.
14. Where the suit is time barred the ground upon which the exemption from the law
of limitation is claimed.
15. There should be a prayer clause at the foot giving details about the relief
claimed. The costs and litigation expenses may be demanded and it is advisable
to make a prayer in the alternative as well.
16. Each plaint should be verified and signed by the plaintiff .The verification is
made on basis of knowledge and also on behalf of information got and believed
to be true.

2.1 WRITTEN STATEMENT:

MEANING: The term written statement has not been defined under the code. It is a
pleading of the defendant. It is a document on basis of the defense , pleas or counter
claim is made to which the suit is instituted its object is to state the grounds upon
which the plaintiff cant get relief from the court

Particulars: Every written statement contains the following particulars:

1. The name of the court where the suit is filed and the suit number of the suit.
2. The name description and residence of the plaintiff and defendant.
3. Where the plaintiff or defendant is a minor or of unsound mind a statement to this
effect.
4. Where there is one defendant then the written statement is to be addressed as
written statement on behalf of defendant No. 1. But if there are more than one
defendant then the written statement should be specific to mention that it is
written statement of say defendant no 3 and 4 or on behalf of defendant 1 and
2.
5. The defendant should take all possible defenses in the written statement. If the
defendant fails to take a particular defense in the written statement then he is not
allowed to take the defense later on unless the written statement is amended.
6. The written statement should be drafted in the same manner by taking each and
every Para of the plaint. Each fact mentioned in the plaint should be singled out
and it should be either admitted or denied by the defendant.
7. The defendant should not say anything about the relief as claimed by the plaintiff
except that the suit of the plaintiff should be dismissed. There is no need to deny
the relief claimed specifically.
8. If there are some legal defenses to be taken by the defendant for example;
limitation, jurisdiction, Res Judicata, then divide the written statement in to two
parts . The first part about the legal defense should be titled; Preliminary
Objections and the second part should be titled On Merits.
 9. The Dilatory pales should be taken. These pleas delay the suit and are for the
benefit of the defendant. Dilatory pleas include objection to Non Joinder of
parties or not filing the suit on behalf of a minor though a guardian etc. The
detail should be given. For example if there is objection to non joinder then it is
not sufficient to mention that ‘the suit is bad for non joinder ‘ but it should be
mentioned that as such and such person was not included therefore the suit is
bad for non joinder .
10. The prayer clause at the foot giving details about the relief claimed should be
denied alleging that the suit merits dismissal.
11. Each written statement should be verified and signed by the plaintiff .The
verification is made on basis of knowledge and also on behalf of information got
and believed to be true.

PROVISONS RELATING TO SET OFF:

Doctrine of SET OFF; when a plaintiff files a suit for recovery of some amount and the
defendant finds that he also has a claim to settle then this is called set off. Thus it is a
reciprocal claim of debt. In this way the defendant is saved from filing a new suit.

EXAMPLE: A is a manufacturer of biscuits. B is the dealer of his products .A keeps on

supplying goods to B on credit and B keeps on paying for them. After somet ime B also
starts some manufacturing of goods. Now A takes the supply of his goods. Later on
there is a dispute between A and B and A files a suit for recovery. Here B also has to
recover some amount from A so he can file a set off in the same suit.

CONDITIONS: A defendant can file a set off but the following conditions apply:
1. The suit must be for recovery of money.
2. The sum of money must be ascertained.
 3. The money must be recoverable legally by the defendant and if there is
more than one defendant than by all of them.
4. It must be recoverable from the plaintiff and if there is more than one
plaintiff then from all of them.
5. The set off must not exceed the pecuniary jurisdiction of the court where it
is filed.
6. The parties should be in the same character

EFFECT: When a suit is filed by the plaintiff and the defendant claims a set off then
there are two suits going on at the same time. The set off is not given a suit number.
But if the suit of the plaintiff is dismissed in default or he withdraws it then th is has no
effect on the claim or set off. The defendant has to prove his claim. If the defendant is
able to prove his case then it may be decreed against the plaintiff.

EQUITABLE SET OFF:

Under rule 6 set off is called legal set off. It is connected to an ascertained amount of
money. However if the amount of money is not ascertained then the defendant may
also claim a set off this called equitable set off. This dealt under order 20 rule 19[3] o f
the code.
FOR EXAMPLE:
1. A sues B for recovery of Rs. 50,000. The suit is filed under a contract.
Now B can file an equitable set off because A has caused a breach of
contract.
2. A files a suit against his master for getting his salary. Now the master
can file asset off for the negligence of duty by the servant.
3. A is a washer man who files a suit for wages against B. Here B may file a
set off for the loss of clothes by A.
LEGAL AND EQUITABLE SET OFF:
 1. .Legal set off is for ascertained amount of money but equitable set off can be for
un ascertained sum of money.
2. Legal set off is a legal right and the court has to adjudicate upon it where as
equitable set off is not a legal right and the court has discretion to adjudicate on
it.
3. In a legal set off it is not necessary that the cross demands arise out of the same
transaction where as in equitable set off it is necessary that the demands arise
out of the same transaction.
4. In a legal set off the claim is passed only if there is a legal right and it is not time
barred, But in a equitable set off the claim may be allowed even if time barred but
there has to be a fiduciary relation between the parties.
5. A legal set requires a court fee bit there is no need of court fee in case of
equitable set off.

ORDER 8 [RULE 6-A TO 6-G] COUNTER CLAIM; Counter claim is a claim made by
the defendant against the plaintiff in a suit. It is an independent claim and is separable
from the claim of the plaintiff. It can be enforced by a cross action. It is a cause of
action in favour of the defendant and against the plaintiff.

When the plaintiff files a suit against the defendant and makes a claim then the
defendant may defeat his action by making a counter claim. It is a claim made by the
defendant in a suit filed by the plaintiff. The counter claim is a cross action. It may be set
by the defendant in a suit apart from the set off. On basis of a counter claim if the
defendant wants he can file a separate suit.

OBJECT; before the amendment of 1976 a counter claim or set off could only be made
in a money suit, now a defendant may make a counter claim as well as a set off in the
same suit. This helps to save the multiplicity of suits.
NATURE AND SCOPE; After the 1976 amendment the following changes have taken
place;
 1. The defendant may make a counter claim if a right has accrued to him against
the plaintiff.
2. The defendant may make the counter claim either before the filing of suit at the
time of suit. It may be made either before the defendant has delivered his
defense or before the time fixed for delivery of defense has ended.
3. The counter claim should not exceed the pecuniary limit of the court.

ILLUSTRATION;
1. A has filed a suit against B and B has claim against A of any kind then B may file
a counter claim against A.
2. A is a trader he has been supplying to B wheat. Now there is a dispute .So A
files a suit against B for Rs 10000 As a matter of fact B has A claim against A as
he has made him supply of Rice sometimes back and he finds that a has to pay
him Rs 50,000.Thus B may make counter claim against A in the same suit .
3. A files a suit against B for Permanent Injunction . But B claims that he is the
owner in possession of the suit property because the real owner has left a will in
his favour .Here B may set a counter clam that he is owner in possession of the
property.

Gurbachan Singh v/s Bagh Singh [1996 SCC]; In a suit for injunction a counter claim for
possession may be made.

EFFECT; A counter claim may be filed by the defendant and it is like a counter suit. The
court may pronounce a judgment both on the suit and also in the counter claim.

The counter claim is treated as plaint of the defendant and the plaintiff has a right to file
a written statement to it. The effect of the counter claim that even if the suit of the
plaintiff is stayed or dismissed or withdrawn it will nor effect the counter claim made by
the defendant . The defendant has a right to get the decree in the counter claim against
the plaintiff. The court will treat the counter claim as a plaint and the reply filed by the
plaintiff to a counter claim will be treated as written statement.

SET OFF AND COUNTER CLAIM [DIFFERENCE] ;

The following are the differences between a counter claim and a set off;

1. A Set off is a statutory defense to the claim of a plaintiff where as a counter

claim is a cross action against the claim of the plaintiff.
2. Set off is made for an ascertained sum of money and it must arise in the
same transaction. But the counter claim may not arise out of the same
transaction.
3. Set off is a defense or a shield that is made against the claim of the plaintiff
where as a counter claim is a sword against the claim made by the plaintiff.
4. In a set off the amount should be recoverable at the time of filing of suit
whereas in a counter claim the amount should be recoverable at the time of
filing of written statement.
5. When the defendant demands in a suit by the plaintiff an amount that is equal
or less to the amount of the plaintiff it is a set off .Whereas if the amount is
more than the amount claimed by the plaintiff it is called a counter claim.

FOR EXAMPLE;
A, files a suit for recovery for Rs 10,000 against B now B has also a claim of Rs 2000 so
he will make a set off and if the claim of B is Rs 50000 then it will be a counter claim.
APPEARANCE AND NON APPEARANCE OF PARTIES;
Order 9 deals with appearance and non appearance of parties to a suit and the consequence of non
appearance. It also deals with the procedure to set aside an ex parte order / decree and if the suit has
been dismissed in default.

APPEARANCE OF PARTIES RULES 1 AND 12;

Rule 1 requires the plaintiff to be present in person or through a pleader on the date of hearing and similarly
the defendant who has been served properly is required to appear in person or thorough a pleader on the
date mentioned in the summons. If the plaintiff fails to appear on the date of hearing the court may dismiss
the suit and if the defendant is not present in person or through a pleader the court may proceed ex parte
against him.

WHERE NEITHER PARTY APPEARS; RULE 3;

Where on the date of hearing neither the plaintiff nor the defendant is present the court may dismiss the
suit in default of non appearance. The order of dismissal for non appearance may be set aside by filing an
application by the plaintiff and if the court is satisfied it may proceed on with the case. If the court is
satisfied that there are sufficient and reasonable causes for setting aside the order of dismissal it may do
so. Under Rule 3 where the suit has been dismissed for default the plaintiff may file a fresh suit on the
same of cause of action.

WHERE ONLY THE PLAINTIFF APPEARS; RULES 6, 10;

Where the plaintiff is present when the case is taken up and the defendant fails to appear the court may
proceed ex parte against the defendant. The plaintiff has to prove that the defendant has been served
properly and on satisfaction the court may pass an ex parte decree against the defendant if the plaintiff is
able to prove his case.
Where there are two or more plaintiffs and one or more appear the court may allow the suit to proceed on
as if all the plaintiffs are present.

WHERE ONLY THE DEFENDANT APPEARS RULES 7-11;

Every party should get a fair and reasonable opportunity to defend himself. If the plaintiff fails to appear on
the date of hearing the court may dismiss the suit. The order of dismissal for non appearance may be set
aside by filing an application by the plaintiff and if the court is satisfied it may proceed on with the case. If
the court is satisfied that there are sufficient and reasonable causes for setting aside the order of dismissal
it may do so.

Calcutta Port Trust v/s Shalimar Tea Company [AIR 1991 SC];
Where the defendant appears and the Plaintiff does not appear and the defendant does not admit the
plaintiff’s claim wholly or partly the court shall pass an order dismissing the suit
But if the defendant admits the plaintiff’s claim as a whole or as a part then the court may pass a decree
against the defendant upon admission and dismiss the suit for the rest of the claim

RAJA Dev Baksh v/s Habib Shah [ 1913 [PC]

It is a serious matter to dismiss the suit of the plaintiff. Thus the court can’t dismiss a suit where the plaintiff
is absent due to death. Such an order is a nullity because the rules applies to a defaulter and not to a dead
man

Under rule 9 when the suit has been dismissed due to absence of plaintiff then such a plaintiff is barred
from a bringing a new suit on the same cause of action. However he can apply for an order to set aside the
order of dismissal of suit.

LachI Tewari v/s Director Land Records [ AIR 1984 SC]; The plaintiff can apply for an order to set aside
the order of dismissal of suit. If the court is satisfied that there are sufficient reason that did not allow the
plaintiff to attend the court the court may set aside the order of dismissal and fix new date for further
proceedings in the case.
Moti Chand v/s Ant Ram [ [AIR 1952 MP High Court]
What is a sufficient cause depends upon the circumstances of each and every case. The court should
adopt a liberal and generous construction for ends of justice.
Under Rule 9 [2] before setting aside the dismissal order the court must give a notice to the other party.
Rule 11; where there are two or more defendants and one or more appears and others don’t appear. Suit
will proceed on and at the time of pronouncement of judgment the court may make such order as to absent
defendant as is proper.
The degree will be against the defendants who were present and exparte against those who were not
present .

East India Cotton Mfg Co v/s Gupta [ 1985 [Del]LT; The underlying principle is that the suit is fully decided
and the defendant has a right to come and defend the suit