CPC

14

Part
SUIT IN PARTICULAR CASES

Scope: - For the purpose of procedure, suits may Fresh notice is required to be given for the new
be divided into two clauses, namely cause of action having arisen between the original
1. suits in general; plaint and amended plaint.
2. suits in particular cases. In computing the period of limitation for
Notice before suit: - According to Section 80, institution of a suit, the period of notice has
such a notice, however, is a condition precedent to to be excluded. (Limitation Act, 1963; Mohd.
suits against the Government. It is also a condition Quaranuddin v. State of Andhra Pradesh, 1994,
precedent to suits against a public officer in respect SC)
of an act purporting to be done by him in his official
The plaint must also contain a statement that the
capacity.
statutory notice has been delivered or left. Omission
The section is a measure of public policy.
to make such a statement is fatal and the plaint will
The notice should be in writing, and it should
be rejected in its absence. (Bihari Chaudhary v.
state the cause of action, name, description, place of
State of Bihar, 1984, SC)
residence of the plaintiff and relief claimed by him.
No suit should be instituted until the expiration of The provisions of this Section are not
two months next after the notice has been served. applicable automatically to statutory
However, the suit can be instituted against corporations, government companies etc. There
the government without complying with the may be independent provisions in the statutes
requirement of serving notice under Section 80(1), incorporating them, for example, Delhi Municipal
only with the leave of the court as enjoined under Corporation Act and Delhi Development Authority
Section 80(2). Act.
The permission to institute a suit without notice
Consent before suit
is to be granted by a specking and reasoned order.
According to Section 91, a suit in respect
The court has the power to dispense with the
requirement of service of such notice if it is satisfied of a public n nuisance may be instituted by the
that the suit is filed to obtain urgent or immediate Advocate-General, or by two or more personas after
relief. obtaining the leave of the court. A suit is respect of
The notice is a legal requirement and not a mere public charities may be instituted by the Advocate-
formality. General, or by two or more persons having an
No suit shall be maintainable without such interest in the trusts for charity after obtaining the
notice. leave of the court in accordance with Section 92
The object is to alert the state to negotiate a just of the Code.
settlement and avoid litigation as far as possible. In Mrinalini Padhi v. UOI, 2018, SC, the
The notice under this section can be waived by Supreme Court expanded the rule of standing to
the party for whose benefit it has been provided. any devotee to move the jurisdictional District
(Bishan Dayal & Sons v. State of Orrisa, 2001, Judge throughout India for redressal of any
SC) grievance relating to administration of a religious
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 1
institution, particularly of any pilgrimage centre Title of the suit: -
of national importance to District Judge who may Suits by or against the Government are to be
either himself/herself or by assigning the issue/ instituted by or against the Union of India or the
matter to any other court under his/her jurisdiction state as provided under section 79; Order XXVII,
to examine the relevant issues and send a report to Rule 3. Section 79 is a procedural section and
High Court. substantial compliance with the requirements
thereof is sufficient.
The latter will consider the report in public
According to Order XVII, Rule 1, in any suit by
interest and issue such judicial directions as
or against the Union of India or a state, the plaint
becomes necessary having regard to individual fact
or written statement should be signed and verified
situation. by such persons as may be appointed by the
“Doctrine of Cy-pres” Government, and who is acquainted with the facts
Cy-pres means that where a fund, given to the of the case.
charity, is not fully utilize for the particular purpose Order XXIX, Rule 1:- A company may also
specified by the donor, and the donor had a general authorize a person to sign a plaint on its behalf.
charitable intention the surplus may be applied to The rule confers a limited power to sign and verify.
The company can also ratify the act of signing and
similar, allied or supplementary purposes.
verifying of the pleadings by its officer.
The carried out in the manner and form intended
In suits concerning the family, special
by the donor.
provisions apply in accordance with Order
“The ‘doctrine of cypres’ would only apply XXXIIA.
where a charitable bequest falls or is incapable of The ultimate object to be achieved or aspired
being fulfilled in accordance with the spirit or when for is to preserve the integrity of the family.
directions of the founder cannot be carried out for Such matters may be heard in camera if a party
the purpose and the spirit for which the trust was so desires.
created”. Suits or proceedings relating to Wills, intestacy
According to Sections 86, 87, 87A and 87B, a and succession filed by a third party is governed by
person who proposes to sue the ruler of a foreign the ordinary procedure.
state or an ambassador or envoy of a foreign state, Execution of decrees
should before instituting the suit obtain the consent Section 82 states that where a decree is against
of the Central Government, certified by one the Union of India or a state or against a public
signature of a secretary to the Government of India officer in respect of an act done by him in his
except where he is a tenant of immovable property official capacity, execution should not be issued,
which he holds from such ruler, ambassador or unless it remains unsatisfied for the period of
envoy, and the suit is brought by him as such tenant. three months.
According to Section 86, no ruler, high
The consent of the Central Government must
commissioner, ambassador or envoy of a foreign
be obtained before institution of the suit. The
state can be arrested under the Code, nor can any
consent obtained after the institution of the suit is
decree against him be executed against his property,
not sufficient. (Mirza Ali Akbar v. UAR, 1966, SC)
without the consent of the Government of India.
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 2
 Interpleade suits [Section 88, Order XXXV] A decree passed against a minor in a suit in
An interpleader suit is one in which the real which he is not represented by a guardian ad litem
dispute is not between the plaintiff and the defendant, is a nullity, and it cannot be enforced against him.
but between the defendants who interplead against No next friend or guardian for the suit should,
each other. without the leave of the court expressly recorded
In an interpleader suit, the plaintiff is not really in the proceedings, enter into any compromise, on
interested in the subject-matter of the suit. behalf of a minor with reference to the suit. Any
In an interpleader suit, there must be some compromise entered into without such leave is
debt or sum of money or other property in dispute voidable at the option of the minor.
between the defendants only. This rule is imperative, and it applies even if the
The plaintiff in an interpleader suit must be in a next friend or guardian be the father of the minor,
real position of impartiality. and the manager of a Joint Hindu Family of which
Where any of the defendants in an interpleader the minor is a member.
suit is actually suing the plaintiff in respect of the A minor plaintiff or defendant at attaining
subject-matter of such suit, the court in which majority must elect whether he will proceed with
the suit against the plaintiff is pending, on being the suit and where he elects to proceed, he must
informed by the court in which the interpleader suit apply for an order discharging his next friend and
is pending, shall stay the proceedings in that suit for leave to proceed in his own name. And thereafter
as against him in accordance with Order XXXV, the title of the suit shall also be corrected.
Rule 3. Order XXXIII
Suits by or against Minor and Lunatic [Order The word “person” mentioned in Order
XXXII] XXXIII includes not only a natural person but
A person being major according to personal law other judicial person also. The petitioners, a body
but minor according to Indian Majority Act, 1875 corporate can maintain an application under Order
cannot sue without next friend. XXXIII, Rule 1 and an application under Order
Every suit by a minor should be instituted in his XLIV, Rule 1.
name by a next friend. The next friend should be If the indigent succeeds in the suit, the
a person who is of sound mind, who has attained government has a first charge on the subject matter
majority, who is not a defendant in the suit, and of the suit for the amount of the court fee which
whose interest is not adverse to that of the minor. would have been paid by him if he had not been
The title to the suit in such a case is AB, a minor, permitted to sue as an indigent. If he fails in the
by CD, his next friend, v. XV. suit or is dispaupered, or if the suit is dismissed
“A suit filed by a plaintiff who is of unsound for default (i.e, non-appearance at the hearing), the
mind through next friend, the court is not required court should order such court fee to be paid by him.
to pass any order of appointment of next friend of A person is “indigent person”:
guardian. Whereas in case, defendant is of unsound
When he is not possessed of sufficient means to
mind or minor, court is required to pass an order
enable him to pay the fee prescribed by law for the
appointing guardian.” (Jarnail Singh v. Naranjan
plaint in the suit proposed to be instituted by him.
Kaur, 2011)
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 3
 The mere possession of immovable properties It shall reject the application.
without any proof of derivation of income from 1. Where he has, within two months next
it is not “sufficient means” to pay the court fee. before the presentation of the application,
The court has to enter into a finding regarding the disposed of any property fraudulently or in
capacity to raise money to pay. (Rajamma Joseph order to be able to apply for permission to
v. Binu Prasad, 2010) sue as an indigent person; or
The words “is not possessed of” contemplates 2. Where his allegations do not show a cause
not possession of property but sufficient means i.e., of action.
capacity to raise money to pay the requisite court The court should, before granting the
fee. application, given an opportunity to the opposite
party to show that the applicant is not entitled to
For determining the issue concerning “indigent
sue as an indigent.
person”, the property which is exempt from
For this purpose, the court fixes a day for holding
attachment and the subject of the suit is not to be
an inquiry, and notice of the day so fixed is given
taken into consideration.
to the opposite party and the Government Pleader.
A person is not entitled to institute a suit as an If the inquiry discloses any of the five grounds
indigent as of right. He can sue as indigent only if mentioned above for rejecting the application the
he h as obtained permission of the court to do so. court should refuse to allow that applicant to sue
The court may fix a day for receiving evidence of as an indigent, otherwise the court may grant the
applicant’s indigency. Rule 7 lays down procedure application.
for hearing. It is open to the defendant and the Government
If after considering the material on record, the Pleader to apply to the court at any time during the
court comes to the conclusion that the plaintiff be pendency of the suit for an order that the plaintiff is
permitted to sue as a pauper, the court then must not an indigent person and the court may order that
pass an order to register the plaint and number it the plaintiff is not an indigent person.
and proceed further in the ordinary manner except Where the suit of the plaintiff, in which
payment of Court fee (Order XXXIII, Rule 8). permission to sue as an “indigent person” has
been granted, is withdrawn or dismissed or abates
It is the duty of the Court to insist upon report
by reason of the death of the plaintiff, the court
from the Government regarding the financial status
must order the state Government to recover the
of the applicant. Where the clear mandate of rules
court fee payable, from the plaintiff or the estate of
6-8 was not followed, it would vitiate the order
the deceased plaintiff.
granting leave to sue as pauper. (D Hemchandra
Suit by a firm
Satar v. D Prithviraj, 2004)
Where a suit is instituted by partners in the
While considering the prayer for leave to sue name of their firm, the plaintiff firm should, if so
as an indigent person, the court should not keep required by the defendant, disclose the names of
the question of jurisdiction and cause of action all persons constituting the firm. If the names are
undecided. The court should first decide the not disclosed, the suit will be stayed. If they are
application of jurisdiction and then proceed with disclosed, the suit will be proceeded in the same
the matter of grant of leave. manner, and the same consequences in all respects
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 4
will follow, as if the persons whose names are so Summary Suits
disclosed had been named as plaintiffs in the suit. The provision of Order XXXVII of the Code,
All proceedings should continue in the firm name,
apply to the following classes of suits:
but the name of the partners disclosed in the manner
specified above shall be entered in the decree. This 1. suits based upon bills of exchange, hundies
is in accordance with Order XXX, Rule 2. and promissory notes:
According to Order XXX, Rules 3 and 5 where 2. suits in which the plaintiff seeks to recover a
a suit is instituted against a firm, the summons debt or liquidated amount arising on:
should be served either upon one or more partners a) a written contract;
or upon the person who is then the manager of the
b) an enactment, where the sum sought to be
firm.
recovered is s fixed amount or debt, other
However, if the firm was dissolved to the than a penalty;
knowledge of the plaintiff before suit, the summons
c) a guarantee;
should be served upon every person within India
whom it is sought to make liable as partner. Under Order XXXVII, the plaintiff must
If the plaintiff was not aware of the dissolution serve summons of the suit of the defendant and
when he filed the suit, the decree binds all the the defendant may within ten days of the service
partners in the firm irrespective of whether they of such summons, enter his appearance in the court
have been served individually. along with address for service of notices on him
In a suit instituted against a firm in its name, if and notice of entering into appearance must also be
any of its partner dies, whether before institution or given to the plaintiff.
during the pendency of the suit, it is not necessary to It can grant leave to defend unconditionally or
substitute the legal representatives of the deceased impose conditions before granting leave to defend
partner (Order XXX, Rule 4) or pass judgment as prayed for or otherwise by
However, in a suit having been filed in the refusing leave to defend.
name of the firm and all the partners die during the The court can refuse leave if it is satisfied that
pendency of the suit, the legal representatives of
facts disclosed by the defendant do not indicate a
the deceased partners must apply under Order I,
substantial defence or that the defence is frivolous
Rule 10 of the Code to be brought on record as
or vexatious.
plaintiffs.
The second proviso to Order XXXVII, Rule
Suit involving question of interpretation of
constitution or validity of Statutory Instrument 3(5) of the Code makes it very clear that leave to
defend a suit shall not be granted unless the amount
Where a suit involves a substantial question of
as admitted to be due by the defendant is deposited
law as to interpretation of Constitution or as to
validity of any statutory instrument, the court shall in court.
not decide the question without issuing notice An appeal lies against an order refusing leave
to the Attorney General or Advocate General or to defend. Interlocutory order granting conditional
Government Pleader, as the case may be. The court leave to defend or refusing leave to the defend the
may also add Government as a party if there is an suit can be challenged by aggrieved party in an
application for that purpose. appeal preferred against the final decree.
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 5
 Where the defendant has not entered appearance Requirement of specifying the name of a party
having been served with the summons of the suit, likely to initiate proceedings is only directory and
within the prescribed period, or has not applied for caveat cannot be rejected on this ground.
leave to defend within the prescribed period having However, the lodging of caveat does not exclude
been served with the summons for judgment or the jurisdiction of the court to grant ex parte relief,
where his application for leave to defend has if there are compelling circumstances, and the
been refused, the plaintiff is entitled to judgment order passed without notifying the caveator shall
not be void.
forthwith.
Section 148A does not contemplate the
Setting aside of ex-parte decree under Order
enforcement of a notice, where notice is otherwise
XXXVII, Rule 4 of the Code cannot be allowed in
ruled out by other provision of the Code.
routine and special circumstances are required to
The caveat shall remain in force for a period of
be established.
90 days.
Caveat If caveat is not made afresh, no notice is required
Sometimes, an unscrupulous party obtain to be served if the application is made after the
ex-parte injunctions or other interim reliefs by expiry of the caveat.
misleading the court. It takes quite long to get It is evident from the language employed in
such interim relief vacated. It may harm genuine the provision that the power given to the court is
or bona fide interests because of the abuse of the discretionary and is intended to be exercised only
legal process. To avoid such a situation, there is to meet the ends of justice.
a provision to prevent passing of ex parte orders Where the court has granted time to do any act,
without hearing affected parties. In such cases, a it has discretion to extend such time from time to
caveat may be lodged as under section 148A. A time.
caveat is a notice given by one party to the proper The “act to be done” must be the one prescribed
officer to the effect that no action of a certain kind under the Code and the time for doing that act is
may be taken without first informing the person fixed by the court, and not by the Code.
who gave the notice (caveator), and until the party If for the “act to be done” the time is prescribed
has been heard in opposition. by the Code itself, Section 148A has no application
and in such cases time can only be extended by the
Caveat is a precautionary measure having the
court in exercise of its inherent powers.
underlying object firstly, to safeguard the interest
“Extension of time” can be done even after
of a person against an order that may be passed on
the time originally granted has expired. However,
an application in a suit or proceeding instituted or the time so extended shall not exceed 30 days in
about to be instituted, giving him an opportunity of total from the date of expiry of the period originally
being heard, and secondly, to avoid multiplicity of fixed or granted.
proceedings. However, extension beyond maximum of
A caveat may be filed by any person who is 30 days can be permitted if the act could not be
going to be affected by an interim order likely to performed within 30 days for the reason beyond
be passed on an application which is expected to be the control of the party, in exercise of its inherent
made in a suit or proceedings instituted or about to powers. Such power is given to secure the ends of
be instituted. justice.
APS JUDICIAL ACADEMY 30-32, Mall Road, GTB Nagar, Delhi. 88032 88032 6