Q.: What Is Decree and Deemed Decree? Explain Its Essential Element

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Q. : What is Decree and Deemed Decree? Explain its essential element.
A. : Section 2(2) of the the Code defines 'decree'. It means the formal expression of
adjudication which, so for as regards the court expressing it, conclusively
determines the rights of the parties with regard to all or any of the matters in
controversy in the suit and may either be preliminary or final.
It shall be deemed to include the rejection of a plaint and the determination of
any question within Section 144, but shall not include –
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Essentials of Decree
Following are the essentials of a decree:-
1. ‘Adjudication’: For a decision of a court to be a decree, there must be an
adjudication, i.e., a judicial determination of the matter in dispute. A decision on the
matter of administrative nature cannot be termed as decree as it does not judicially
deal with matter in dispute.
2. Adjudication must be done in a suit: It is necessary for the decree that
adjudication must be in a 'suit'. The expression 'suit' is not defined in the Code. In
Hansraj Gupta v. Official Liquidator of Dehradun Mussorie Electric Tramway Co.
Ltd., AIR 1933 PC 63, the court defined ‘suit’ as a civil proceeding instituted by
presentation of a plaint.
CODE OF CIVIL PROCEDURE

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3. Determination of rights of parties in controversy: The adjudication must

determine the rights of the parties in controversy with regard to all or any of the
matters in controversy in a suit. The word ‘rights’ means substantive rights of the
parties and not merely procedural rights.
4. Conclusive determination: Such determination must be of conclusive nature, i.e.,
final as regard the court which passes it. Therefore, an interlocutory order which
does not decide the rights of the parties finally is not a decree. The crucial point
which requires to be decided in such a case is whether the decision is final and
conclusive in essence and substance.
5. Formal expression: There must be formal expression of such adjudication. All the
requirements of form must be complied with as given in the manner provided
under Rule 6, 6A and 7 of Order 20 of the Code. The decree follows the judgment and
must be drawn up separately.
Deemed Decree
An adjudication which does not formally fall under the definition of decree under
Section 2(2) but due to a legal fiction, they are deemed to be decrees are considered
as deemed decrees. As per Section 2(2) the following orders of the court shall be
deemed to be decree –
(a) Rejection of plaint under Order 7 Rule 11
(b) Determination of questions under Section 144 (Restitution)

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Q. : Distinguish between a decree passed by a Court lacking territorial

or pecuniary jurisdiction and a decree passed by the court lacking
jurisdiction in respect of subject matter.
A. : The court must have jurisdiction to entertain and try the suit. Supreme Court in
Chiranjilal Srilal Goenka v. Jasjit Singh and Ors., (1993) 2 SCC 507 observed that
decree passed by a court without jurisdiction on the subject matter goes to the root
of the matter. Such decree is a nullity and non est. Supreme Court in
Athmanathaswami Devasthanam v. K. Gopalaswami, AIR 1965 SC 338 held that civil
court having no jurisdiction over subject matter of a suit, cannot decide any
question on merits. It can simply decide question of jurisdiction and order return of
plaint for presentation to proper court if it comes to a conclusion that it has no
jurisdiction.
In Hiralal v. Kalinath, AIR 1962 SC 199 pointed out that defect of jurisdiction with
respect to pecuniary or territorial jurisdiction does not go to the root of the matter.
Decree passed in such a defect is not a nullity. Supreme Court in Hasham Abbas
Sayyad v. Usman Abbas Sayyad, AIR 2007 SC 1077 observed an order passed by a
court lacking inherent jurisdiction would be a nullity. Any order passed by a court
without jurisdiction would be a coram non judice, being a nullity, the same
ordinarily should not be given effect to. Court further observed that a distinction
must be made between a decree passed by a court which has no territorial or
pecuniary jurisdiction in the light of Section 21 of the Code and a decree passed by a
court having no jurisdiction in regard to the subject-matter of the suit. Whereas in
the former case, the decree will not be a nullity, in the latter case the decree will be
nullity.

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Q. : Is a suit by ‘A’ for declaration that religious rites performed by B

during the Seva Puja or the deity were not proper, suit of civil
nature?
A. : In the present set of facts, the primary question involved is purely religious in
nature. Performance of religious rights in correct manner has no semblance of legal
right involved. In Annie Besant National High School v. Deputy Director of Public
Instruction, AIR 1983 SC 526, Supreme Court held that it is notable that a suit is of
civil nature if it involves the question of legal right of citizen or question of right to
property or to an office. Supreme Court in Kanavee Awajee v. Kanavee Manjee, AIR
1993 SC 1163 held that a suit is not of civil nature if it involves a purely religious
question.
In the present set of facts a suit by ‘A’ for a declaration that religious rites
performed by ‘B’ during Seva Puja of a deity were not proper, is a suit related to
purely religious matter and does not involve any question of civil right nor it
involves any question of right to property or to an office. Thus, in view of the law
discussed the present suit is not of civil nature and hence not maintainable.

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Q. : Is a suit for mere dignity or honour, a suit of civil nature? Give

reasons in support of your answer and also refer case-law, if any,
on the point?
A. : A suit for mere dignity or honour is not a suit of civil nature because it does not
involve any legal right of an individual nor it involves a question of right to a
property or to an office In Sri Shanker v. Bharati, 6 WR 39 R.C. the court held the suit
to establish a right not to an office but to a mere dignity or honour or precedence
unconnected with any fees, profits or emoluments is not a civil nature.

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Q. : Is a claim to the office of the Head Priest of Dwarkadheesh a suit

of civil nature? Give reasons and also refer case-law, if any on the
point.
A. : A suit is said to be of civil nature if the principal or main question is related to
the determination of a civil right and its enforcement and a matter which involves
purely political, social or religious question is not a suit of civil nature. It is well-
settled that a question relating to an office or property is suit of a civil nature.
Explanation I attached to Section 9 also makes it clear that a suit in which the right
to property or office is contested is a suit of civil nature notwithstanding that such
right may depend entirely on the decision of questions as to religious rites or
ceremonies.

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Q. : What is Constructive Res judicata?
A. : Constructive res judicata is provided under Explanation IV to Section 11.

According to it a matter will be constructively in issue if it ‘might and ought’ to have
been made a ground of defence or attack in former suit.
Principle underlying constructive res judicata
According to the doctrine of constructive res-judicata, where the parties have
had an opportunity of raising a matter that should be taken to be the same thing as
if the matter had been actually raised and decided. Thus, it helps in raising the bar of
res judicata by suitably construing the general principles of res judicata.
In State of U.P. v. Nawab Hussain, AIR 1977 SC 1680 Supreme Court held that
constructive res judicata is an aspect or amplification of general principles of res
judicata. Supreme Court in Devilal Modi v. STO, AIR 1965 SC 1150 held that if the
doctrine of res judicata is not applied then the doctrine of finality of judgment
pronounced by the courts would be materially affected.
For example, A sues B to recover damages for breach of contract and obtains a
decree in his favour. B cannot afterwards sue A for recession of contract on the
ground that it did not fully represent the agreement between the parties since that
ground ought to have been taken by him in previous suit as a ground of defence.

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Might’ and ‘Ought’

The primary object of Explanation IV is to cut short the litigation by compelling the
parties to the suit to rely upon all the grounds of attack or defence available to them.
If they fail to take such ground which they ‘might’ and ‘ought’ to have taken, it
would be taken as raised and decided.
The expression ‘might’ and ‘ought’ are of wide import. The word ‘might’
presupposes the party affected had knowledge of the ground of attack or defence at
the time of previous suit. The term ‘ought’ compels the party to take such ground.
These two words are to be read conjunctively and not disjunctively.
Supreme Court in Workmen v. Board of Trustees, Cochin Port Trust, AIR 1978 SC
1283 held that where any matter which might and ought to have been made a
ground of defence or attack in a former proceeding but was not so made then such a
matter is deemed to have been constructively in issue to avoid multiplicity of
litigation.
For example, where A files a suit for declaration that he is entitled to a land as
heir of B and the suit was dismissed, A cannot claim, in later suit, title to same
property on the basis of adverse possession if he had knowledge of such defence or
attack and he failed to raise it in previous suit. If no such ground was available to A
when previous suit was decided, then constructive res judicata will not apply in
such case.
Supreme Court in Asgar v. Mohan Verma, (2020) 16 SCC 230 held that in deciding
as to whether a matter might have been urged in the earlier proceedings the court
must ask itself as to whether it could have been urged in the earlier proceedings.
The court must have due regard to the ambit of the earlier proceedings and the
nexus which the matters bears to the nature of the controversy.

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Similarly, in the case of State of U.P. v. Nawab Hussain, AIR 1977 SC 1680, ‘A’ a sub-
inspector of police was dismissed from service by D.I.G. He challenged the order of
dismissal on ground that no opportunity to hearing was given to him. The petition
was dismissed by High Court. He then filed a suit and raised additional ground that
since he was appointed by I.G., D.I.G. had no power to dismiss him as per Article
311(2) of the Constitution. When the matter went to Supreme Court in appeal, the
Hon’ble Court held that the suit was barred by constructive res judicata as the plea
was within knowledge of plaintiff and could well have been taken in earlier writ
petition.

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Q. : X filed suit for possession of certain land alleged to have fallen to

his share on partition of joint family property with Y. Defendant
raised plea that family property has not been divided. The suit was
dismissed giving finding that partition has not been affected. Later
X sued Y for partition of joint family property. Decide the plea of
res judicata raised by Y.
A. : Facts: According to the facts available in the question, the first suit filed by X was
for possession of certain land alleged to have fallen to his share on partition of joint
family property with Y. It was contested raising the plea that family property had
not yet been divided. Court dismissed the first mentioned suit on the basis of
finding that partition had not yet been affected. In the second suit, X has sued Y for
partition of joint family property.
Question involved: Whether the subsequent suit filed by X against Y for partition
of joint family property is barred by res judicata?
Law applied: Law applicable in this situation is doctrine of res judicata. Section 11
of the Code embodies the principle of res judicata. This section provides that no
Courts shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating under
the same title, in a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard and finally decided by
such Court.

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One of the essential ingredients of the principle of res judicata is that the
matter-in-issue in dispute in both the suit must be directly or substantially the
same. In Mathura Prasad v. Dossibai N.B. Jeejebhoy, AIR 1971 SC 2355 Supreme Court
observed that the expression ‘matter in issue’ means the rights litigated between
the parties, i.e., the facts on which the right is claimed and the law applicable to the
determination of that issue. Supreme Court in Isher Singh v. Sarwan Singh, AIR 1965
SC 948 held that the matter directly and substantially in issue in the former suit has
to be decided on the basis of pleadings in the former suit, issues involved therein
and the decision in the suit.
Conclusion: The matter-in-issue in the former suit was not of partition. It was for
possession of the property and no partition had been affected. The present suit is for
partition, matter-in-issue in issue in both the suits cannot be said to be directly and
substantially the same. Therefore, the subsequent suit is not barred by res judicata.

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Q.: H filed a divorce petition against W in a U.S. Court. W has been

staying in India for the last five years and has not visited the U.S.
during this period. H did not serve notice to W at her Indian address
but instead a notice was published in a newspaper in the U.S. The
U.S. Court granted decree of divorce ex parte to H. Discuss the
maintainability of this decree in India.
A. : Facts: H filed a divorce petition against W in a U.S. Court. W has been staying in
India for the last five years and has not visited the U.S. during this period. H did not
serve notice to W at her Indian address but instead a notice was published in a
newspaper in the U.S. The U.S. Court granted decree of divorce ex parte to H.
Question involved: Question pertains to maintainability of ex parte granted by
foreign court in favour of H and against W in Indian Courts.
Law applied: Section 44A of the Code deals with execution of decrees passed by
Courts of reciprocating territory. District Court is empowered to refuse execution of
any such decree, if it is shown to the satisfaction of the court that the decree falls
within any of the following exceptions specified in clauses (a) to (f) of Section 13.
Section 13 of the Code provides that a foreign judgment shall not be conclusive–
(a) where it has not been pronounced by a Court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the face of the proceedings to be founded on an incorrect
view of international law or a refusal to recognise the law of India in cases in
which such law is applicable;

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(d) where the proceedings in which the judgment was obtained are opposed
to natural Justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.
In R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, (1963) 3 SCR 22 the
Supreme Court held that in considering whether a judgment of a foreign court is
conclusive, the courts in India may not inquire whether conclusions recorded
thereby are supported by the evidence, or are otherwise correct, because the
binding character of the judgment may be displaced only by establishing that the
case falls within one or more of the six clauses of Section 13, and not otherwise.
In the present set of facts, wife W had no knowledge of the divorce proceedings
in USA because the notice was never served on her Indian address. Although,
technically notice was issued by the court but it was not to her Indian address. It can
be said that issuance of notice was a mere empty formality and it cannot be said to
be proper service of notice. Therefore, the entire proceedings were opposed to
natural justice and covered by Section 13(d).
Furthermore, even in case of ex parte judgment, it can be said to be on merits if
some evidence is adduced on behalf of the plaintiffs and the judgment, however,
brief, is based on a consideration of that evidence. Where however no evidence is
adduced on the plaintiff side and his suit is decreed merely because of the absence
of the defendant either by way of penalty or in a formal manner, the judgment may
not be one based on the merits of the case. In this manner the case also falls within
the trappings of Section 13(b).
Conclusion: On the basis of above discussion the judgment passed in favour of H in
US court is not conclusive and cannot be executed in India.

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Q.: S, a seller from Delhi enters into a contract for sale of goods with
the buyer B in Madras for supply of goods at Bombay. The invoice
which S sends to B has a line written on top of it “Subject to Delhi
jurisdiction” B files a suit against S for damages at Bombay. Discuss
the maintainability of the suit.
A. : Facts: S is running business at Delhi. He entered into a contract for sale of goods
with the buyer B in Madras. Goods where agreed to be supplied at Bombay. On the
top of the invoice words. ‘’Subject to Delhi jurisdiction” have been written. B files a
suit against S for damages at Bombay
Question involved: Whether the suit in Bombay is maintainable?
Law applied: The present set of facts deal with the issue of territorial jurisdiction
of the courts. Section 20 of the Code provides for all the cases not covered by any of
the Sections 16-19. All such suits may be filed at the plaintiff option in any of the
following court viz :
(a) Where the cause of action, wholly or partly arises; or
(b) Where the defendant resides or carries on business or personally works for
gain or
(c) Where there are two or more defendants, any of them resides or carries on
business or personally works for gain provided that in such a case either the
leave of court is obtained or the defendant who do not reside or carry on
business or personally work for gain at that place acquiesce in such
institution of suit

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In light of Section 20 suit for damages could be instituted at Madras, Bombay or

Delhi. It could be instituted at Madras because agreement was entered into by the
parties there. At Bombay, suit could be instituted because goods were supplied
there. B could file suit against S at Delhi where S is running business.
In A.R. Antulary v. R.S. Naik, (1988) 2 SCC 602 Supreme Court held that it is
well settled that consent cannot confer nor take away jurisdiction of the court. It is
completely a legislative process. If the court does not have jurisdiction no amount of
waiver, acquiescence or estoppel can create it [Modi Entertainment Network v.
W.S.G. Cricket Pvt. Ltd., (2003) 4 SCC 341]. Similarly when the court has jurisdiction
to decide the dispute, it cannot be taken away by the parties through an agreement.
It must be taken note that it is the legislature which confers or takes away the
jurisdiction of the court.
However, in Hukam Singh v. Gammon (India) Ltd., AIR 1971 SC 740 Supreme
Court held that if two or more courts have concurrent jurisdiction then in that case
the parties may agree to select one of the courts for adjudicating the matter.
Conclusion: In the present set of facts, the parties agreed to subject themselves to
the jurisdiction of Delhi courts. Here, courts in Madras, Bombay and Delhi had
concurrent jurisdiction and therefore, such agreement between the parties is not in
contravention of Section 28 of the Contract Act in light of decision in Hukam Singh’s
case. Therefore, the suit is maintainable only in Delhi according to agreement
between the parties.

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Q.: Under which Section of CPC can a suit be transferred from one
court in a district to another court in some other district and which
is the competent court to order such transfer?
A. : Section 24 of the Code deals with general power of transfer and withdrawal. It
provides that the High Court or District Court, after hearing the parties, may, at any
stage:
(a) Transfer any suit or appeal or other proceedings pending before it for trial or
disposal to any court subordinate to it and competent to try or dispose of the
same.
(b) Withdraw any suit, appeal or other proceeding pending in any court sub-
ordinate to it and transfer the same for trial or disposal to any other
competent court sub-ordinate to it or retransfer the same for trial to the court
from which it was withdrawn.
The Supreme Court in Durgesh Sharma v. Jayshree, (2008) 9 SCC 648 held that
the power under Section 24 does not authorize a High Court to transfer any suit,
appeal etc from a court subordinate to that High Court to a court not subordinate to
that High Court under Section 23(3) or 24.

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Power of Supreme Court to transfer the case

Section 25 of the Code provides the power of Supreme Court to transfer the
case. It provides that on the application of a party, and after notice to the parties,
and after hearing such of them as desired to be heard, the Supreme Court may, at
any stage, if satisfied that an order is expedient for the ends of justice, direct that
any suit, appeal or other proceeding be transferred from a High Court or other Civil
Court in one State to a High Court or other Civil Court in any other State.
Every application for this purpose shall be made by a motion which shall be
supported by an affidavit. While dismissing any application if the Supreme Court is
of opinion that the application was frivolous or vexatious, it may order the applicant
to pay compensation up to 2000 rupees to any person who has opposed the
application.
In Indian Overseas Bank v. Chemical Construction, AIR 1979 SC 1514 it was held that
balance of convenience is prima facie consideration for transfer of a suit. Balance of
convenience is neither convenience of plaintiff alone nor of the defendant alone, but
of both. Convenience of witnesses required for proper trial of the suit, and , the
convenience of the particular place of trial having regard to the nature of the
evidence on main points involved in the suit and doctrine of forum convenience are
relevant factors.

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Q.: When can the judgment-debtor be sent to civil prison for not
paying decreetal amount?
A. : Order 21 Rule 30 provides that a decree for payment of money can be executed
by arrest or detention of the judgment-debtor. Thus, the decree-holder has option
to opt for this mode for executing of decree passed in his favour.
However, in Jolly George Verghese v. Bank of Cochin, (1980) 2 SCC 360, the court
observed that mere default to discharge the decree is not enough to order arrest of
judgment debtor. There must be some element of bad faith or indifference to pay or
some deliberate disposition in past or current means to pay the decree or
substantial part of it.
Thus, when there is some deliberate omission or refusal on part of judgment-
debtor, arrest and detention may be ordered in accordance with the provisions laid
down in the Code.
When person cannot be sent to a civil prison
The Code provides for following instances when a person cannot be detained in
execution of a decree in civil prison :
1. When the decreated amount is less than Rs. 2,000 [Section 58 (1-A)].
2. When the judgment-debtor is a woman, judicial offices, etc. who is exempted
from arrest under various provisons of the Code.

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Q.: What are the conditions that must exist for making an application
for the execution of cross-decrees?
A. : Order 21 Rule 18 of the Code provides for execution in case of cross-decrees. It
provides that where applications are made to a court for the execution of cross-
decrees in separate suits for payment of two sums of money passed between the
same parties and capable of execution same time by such court, then–
(a) if the two sums are equal, satisfaction shall be entered upon both decrees;
(b) if the two sums are unequal, execution may be taken out only by the holder
of the decree for the larger sum and for so much only as remains after deducting
the smaller sum, and satisfaction for the smaller sum shall be entered on the
decree for the larger sum as well as satisfaction on the decree for the smaller
sum.
Rule 18(2) provides that this rule shall be deemed to apply where either party is an
assignee of one of the decrees and as well in respect of judgment-debts due by the
original assignor as in respect of judgment-debts due by the assignee himself. Rule
18(3) provides that this rule shall not be deemed to apply unless–
(a) the decree-holder in one of the suits in which the decrees have been made is the
judgment-debtor in the other and each party fills the same character in both suit;
(b) the sums due under the decrees are definite.
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Rule 18(4) provides that the holder of a decree passed against several persons
jointly and severally may treat it as a cross-decree in relation to a decree passed
against him singly in favour of one or more of such person. For example, A, B, C, D
and E are jointly and severally liable for Rs. 1,000 under a decree obtained by F. A
obtains a decree for Rs. 100 against F singly and applies for execution to the Court in
which the joint-decree is being executed. F may treat his joint-decree as a cross-
decree under this rule.

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Q.: Discuss provisions relating to suit by or against Government and

requirement of issuance of notice under section 80, CPC. What are
consequences of non-issuance of notice?
A. : Sections 79 to 82 read with Order 27 of the Code deals with the procedure of
institution of suit by or against government and public officer in their official
capacity.
Section 79 and Order 27 Rule 3 provides that in every suit by or against Government,
the authority to be named as plaintiff or defendant, as the case may be, shall be -
(a) In case of a suit by or against the Central Government, the Union of India
(b) In case of suit by or against State Government, the State.
There is no need to mention in detail the name and address of such plaintiff or
defendant in the plaint. Rule 5A further provides that where suit is filed by or
against public officer in official capacity, the government shall be made a party to
such suit.
Rule of notice
Section 80 of the Code contains the rule of notice. It provides that no suit shall be
instituted by or against government or public officer in respect of any act done or
purported to be done in his official capacity unless two months prior notice is sent
in writing to or left at the office of:

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(a) In case of suit against Central Government except where it relates to railway, a
Secretary to that Government.
(b) In case of suit against Central Government where it relates to railway, the
General Manager of that Railway.
(c) In case of suit against Government of State of Jammu & Kashmir, the Chief
Secretary to that Government or any other authorized officer of Government.
(d) In case of suit against State Government, a Secretary to that Government or
collector of the district.
(e) In case of public officer, to him.
Essentials of notice
Following are the essentials of notice under Section 80(1)-
(a) Name, description and place of residence of the person giving notice;
(b) Statement of the cause of action;
(c) Relief claimed by him.
The primary object of the notice under Section 80 is to afford an opportunity to
the Government or public officer to settle the claim put forward by the prospective
plaintiff and to avoid unnecessary litigation.
Consequence of non-issuance of notice: Provisions of Section 80 are mandatory
and must be strictly complied with. Failure to serve notice complying with the
terms of Section 80 will make the suit not maintainable. Section 80 uses the words
'no suit shall be instituted'. There is bar to the institution of suit without complying
with the terms of Section 80. In Prem Lal Nahata v. Chandi Prasad Sikaria, (2007) 2
SCC 551 Supreme Court held that plaint is liable to be rejected if the averments in
the plaint indicate the absence of notice.

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Exception of the rule of notice

Section 80(2), inserted vide Amendment Act of 1976, lays down the exception to
the rule of notice and the plaintiff can institute a suit against Government or public
officer if:
(i) the suit is filed to obtain immediate and urgent relief against the Government or
public officer in respect of any act done or purported to be done in his official
capacity, and
(ii) The leave of the court is obtained.
If however, after hearing the parties, the court is of the view that no urgent case
exists is made out under Section 80(2), it may return the plaint to be filed after
compliance of Section 80(1). The permission granted by the court under Section
80(2) is with respect of institution of suit and no relief shall be granted by the court
ex parte without hearing the government or public officer concerned.
Effect of error in notice
Section 80(3) provides that no suit instituted against government or public officer
shall be dismissed merely on the ground of any error or defect in notice referred to
in Section 80(1) if such notice is duly served and properly contains the description of
plaintiff and the cause of action and relief claimed is substantially indicated.

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Q.: What do you understand by 'necessary party' and 'proper party'?

or
Whether a suit shall be defeated by the reason of mis-joinder or
non-joinder of parties?
A. : A necessary party is one against whom a relief is sought and in whose absence no
decree or effective order can be passed whereas a proper party is one in whose
absence effective order can be passed but whose presence is necessary for complete
and final decision of the case. If the necessary party is not impleaded the suit is liable
to be dismissed. For example, in a partition suit, all sharers are necessary parties and
in a suit for eviction of a tenant, the sub-tenant would be proper party.
Test of determining necessary party
The Supreme Court in Kasturi v. Iyyamperumal, AIR 2005 SC 2813 laid down following
two tests for determining the question whether a particular party is a necessary party
to a proceeding: (i) There must be a right to some relief against such party in respect
of matter in issue. (ii) It is not possible to pass an effective decree in his absence
Mis-joinder or non-joinder of parties:
Where the person is a necessary or proper party to the suit and he has not been
joined as a party then it is a case of non-joinder of parties. If two or more persons are
joined as a party to the suit in contravention of Order 1 Rule 1 and 3 and where they
are neither necessary party nor proper party then it is a case of mis-joinder of parties.

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Effect of non-joinder and mis-joinder:

Order 1 Rule 9 lays down general rule for non-joinder and mis-joinder of
parties. It lays down that suit cannot be defeated only on the ground of non-joinder
or mis-joinder of parties. However, proviso to Rule 9 states that this rule is not
applicable in case of non-joinder of necessary party. Therefore, it means that if a
necessary party has not been joined in the suit then the suit can be defeated.
Further Sections 99 and 99-A also provides that no decree shall be reversed,
substantially varied or remanded in appeal on account of any mis-joinder or non-
joinder of parties. Decree can be so reversed only if:-
(i) it affects merits of the case, or
(ii) if affects jurisdiction of the court. However non-joinder of necessary party is a
serious defect and would not be covered under Section 99.

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Q. : Discuss the object and essentials of Order 2 Rule 2
A. : Order 2 Rule 2 of the Code deals with the splitting of claims. It provides that every
suit must include the whole of the plaintiff's claim to which he is entitled in respect of
cause of action and if he omits to sue for or relinquishes any portion of his claim, he
shall not afterwards be allowed to sue in respect of portion so omitted or
relinquished. For example, A plaintiff who is entitled to sue for possession and
damages both, files for possession only. In such a case, he cannot bring second suit for
damages due to the bar under Order 2 Rule 2 of the code.
Object
The provision of Order 2 Rule 2 is based on the cardinal principle of law that a
defendant should not be vexed twice for the same cause. In Virgo Industries (Eng.) (P)
Ltd. v. Venturetech Solutions (P) Ltd., (2013) 1 SCC 625 Supreme Court held that the
object of this rule is to prevent multiplicity of proceeding by barring a second suit
based on same cause of action.
Essential conditions to invoke Order 2 Rule 2
Following are the essential conditions to which must be fulfilled in order to invoke
the bar of Order 2
Rule 2:-

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1. Same cause of action: The second suit must be proved to be in respect of same
cause of action as that on which the previous suit was based. The cause of action
means every fact which is necessary for the plaintiff to prove to support his claim or
right to the judgment. It has nothing to do with the defence set up by defendants or
character of relief prayed for the plaintiff [Mohd. Khalil v. Mahbub Ali, AIR 1949 PC
78)]. Such cause of action must be identical for raising the bar under Rule 2.
Supreme Court in Swamy Atmananda v. Sri Ramkrishna Tapovanam, (2005) 10
SCC 51 held that a cause of action means every fact, which if traversed, would be
necessary for the plaintiff to prove in order to support his right. It must include
some acts done by the defendant since in the absence of such no cause of action can
possibly accrue.
For example, where A sues B for rent for 1961 leaving the rent for 1962 and 1963
which was also due, and the suit is decreed, A cannot afterwards sue for rent of
three years since the cause of action is identical in both the suits.
2. One of several reliefs: The rule applies in case where the plaintiff is entitled to
more than one relief in respect of the same cause of action. For example, A sues for
damages for breach of contract and omits to claim a portion of damage, subsequent
suit for such portion is barred. In State of M.P. v. State of Maharashtra, AIR 1977 SC
1466 Supreme Court held that this rule will not apply if the right to relief claimed in
subsequent suit did not exist at the time of previous suit.
3. Leave of court: The bar under Order 2 Rule 2 operates only when the leave of
the court is not obtained. Therefore, if the omission to sue has been with the court’s
permission, the subsequent suit is not barred.

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For example, generally, where first suit is for mesne profit and second suit is for
possession based on same cause of action, the second is not maintainable. However,
if such omission to claim for possession is with the permission of court, the bar of
Order 2 Rule 2 will not apply. Supreme Court in Gurbux Singh v. Bhooralal, AIR 1964
SC 1810 held that defendant must prove all the above three conditions in order to
successfully raise the bar of Order 2 Rule 2.

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Q.: What Is Decree and Deemed Decree? Explain Its Essential Element

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Q.: What Is Decree and Deemed Decree? Explain Its Essential Element

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Q. : What is Decree and Deemed Decree? Explain its essential element.

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3. Determination of rights of parties in controversy: The adjudication must

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Q. : Distinguish between a decree passed by a Court lacking territorial

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Q. : Is a suit by ‘A’ for declaration that religious rites performed by B

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Q. : Is a suit for mere dignity or honour, a suit of civil nature? Give

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Q. : Is a claim to the office of the Head Priest of Dwarkadheesh a suit

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Q. : What is Constructive Res judicata?

A. : Constructive res judicata is provided under Explanation IV to Section 11.

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Might’ and ‘Ought’

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Q. : X filed suit for possession of certain land alleged to have fallen to

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Q.: H filed a divorce petition against W in a U.S. Court. W has been

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In light of Section 20 suit for damages could be instituted at Madras, Bombay or

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Power of Supreme Court to transfer the case

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Q.: Discuss provisions relating to suit by or against Government and

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Exception of the rule of notice

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