Mulla The Key To Indian Practice 11nbsped 9789351437031 PDF

MULLA
The Key to
Indian Practice
A summary of the Code of Civil Procedure
by
SIR DINSHAW FARDUNJI MULLA
11th Edition
LexisNexis
Preface to the Eleventh Edition
Change is inevitable and difficult. This is true not only about life but also about law. The
over-arching mission of the author, in the preparation of this book is to avoid complexity
in the Code of Civil Procedure and eliminate the procedural difficulties.
The avowed reason behind accepting the offer to edit the Eleventh Edition of a work on
The Code of Civil Procedure 1908 by Sir Dinshaw Fardunji Mulla was much more than to
update and/or to provide the law students, young advocates, law-teachers and judicial
officers with an easy-to-use tool for reading, teaching and practising in the conduct of suits
in and out of court. The exercise was also aimed to provide a direct link with practical work
and easy access to all the common and complicated troubles of Civil Procedure. This is
significant in view of the growing impression that the new breed of lawyers is not passionate
about procedural niceties in civil law, may be they do not find it very 'interesting'.
Praise for the earlier edition

"For those who want to study the core of the civil procedure code, this book is a must as
the language is simple and the subject is explained in a conceptual way without the rote
method of learming through section wise study. This book is very logical in arrangement and
enables the reader to grasp the essentials of the code in a simple and reader friendly
manner"
About the book

Mulla -TheKey to Indian Practice by Sir Dinshaw Fardunji Mulla provides a summary
of
ithe Code of Civil Procedure. As the book towards its end tends to drag a bit with lot of
technical details and information about Civil Procedure, the new edition is an attempt to
further simplify the learning of procedure adopted by Civil Courts. The discussion of the
subject-matter of the present edition, however, continues to be topic wise.
This book covers a lot of information and technical details of Civil Procedure in a very
simplified way. This might interest technically inclined readers to know the procedure and
the way civil courts are working. One of the things that stand out throughout the book is the
aim of the author to avoid complexity and to provide easy and comprehensive knowledge
about the Civil Procedure.
New to the Edition
Latest Supreme Court and High Courts Judgments
Contemporary topics that have emerged during the progress of this work have also been
incorporated, such as, right to impleadment of a beneficiary of Trust, effect of delivery of
possession of the 'property agreed to be sold' on the issue of limitation of filing suit for specific
performance, whether mortgage can be redeemed even after the sale has taken place but
before confirmation of such sale, duties of the High Court while sitting as Court of first
appeal, non-maintainability of separate suit under Order 23 Rule 3 and 3A CPC, whether
there is legal necessity to fresh impleadment of legal representatives of a deceased plaintiff
when they are already on record in their individual capacity, and transfer of suit from one court
to another for joint trial
The provisions of the Code of Civil Procedure, 1908 have been concisely discussed in a
systematic manner with an attempt to co-relate the chapters aiming to make the reading
interesting
Preface to the Eleventh Edition
Key Features
Covers how the course of an ordinary suit is followed, from the moment the plaintiff
determines to sue till the time he obtains a decree
Elaborates in detail the critical process of execution of a decree and the possible
consequences of an appeal by an affected party
Employs the explanatory method of treatment enabling advocates not only to understand
the provisions of the Code, but also to see how these provisions are applied in practice
Revised and updated thoroughly to include latest judgments and case laws
Content and Structure
This book contains 15 Chapters with 1 Appendix. Its opening chapter gives the introduction
to the Code of Civil Procedure, 1908, as to how it came into being, why its need was felt and
what is the scheme of the Code.
Chapter 2 explains the constitution of Couts and their Jurisdiction, namely, how many
types of courts are there in which suits of civil nature can be presented and what is their
authority to decide such suits. Chapter 3 specifically elaborates the essentials of a suit and
the conditions which must be fulfilled to initiate civil proceedings in a court of law, and
what should there be in a plaint in the case of a suit for specific performance.
Chapter 4 details out the places where civil suits of different nature can be instituted, and the
possible objections which can be raised against the place of suing. Chapter 5 accounts the
requisites for impleadment of parties and the ingredients of Cause of Action and its joinder
or misjoinder.
The different stages of asuit from its institution to execution are enumerated in Chapters 6,
7,8 and 9. Chapters 10 and 11 contain the remedies of first and second appeals against the
order or decree of lower court(s). Chapter 12 gives an insight of the provisions of reference.
revision and review of the decisions of same or lower courts.
The nature of supplemental and special proceedings, say, for temporary relief to the parties,
death or mariage of parties, as well as friendly suit etc. are explained in Chapter 13. Chapter
14 covers the procedure in case of special suits by minor, indigent person, inter-pleader suit,
suit by or against a firm, or Government, or summary suits etc. This chapter further enlightens
the principle res-ju in general as als its applicability in the case of foreign
judgments, besidesthe doctrine of res-subjudice. Further, Chapter 14 of the book deals with
subjects like 'Foreign Judgments' and 'Caveat"'.
Chapter-15 addresses the Alternative Dispute Redressal Mechanism, which is now an integral
part of the mandatory procedure to be followed by Civil Courts.
Acknowledgements
Ihope that this edition will be useful for all entities in the legal profession. Any suggestions
towards its further improvement will be thankfully acknowledged and incorporated in the
next editio. They may be sent to the publisher.
I shallremain grateful to the commissioning, editorial, and production teams of the publisher,
LexisNexis, for their invaluable inputs and utmost cooperation.
Further, I would like to express my special thanks to my wife- Smt. Savita Vashisht, who is
AssociateProfessor in English and Mr. Abhishek Mital - my Law Researcher as without
their cooperation and assistance, this edition could never have been completed.
Justice Surya Kant

VI
Preface to the Tenth Edition
The Code of Civil Procedure, 1908, is a voluminous statute. For a law student or a fresh
advocate, it is not possible to go through the entire Code and understand it completely.
Sir D F Mulla, in this work has given an idea of practice and procedure in the conduct of
suits in and out of court, to law professionals especially new entrants as well as law students.
It is a clear and sagacious exposition, in brief, of the important provisions of the Code. In
the form of just fourteen lectures he has very nicely unfolded the complete Code. The
treatment he adapted enables readers to understand the provisions of the Code as well as
inspires them to learn how to apply the provisions to the practice of civil law.
The present tenth revised edition has been updated by incorporating select decisions
delivered by the Supreme Court of India and various High Courts on the Civil Procedure
Code. The case law on the subject has been searched and collected from several Journals
including All India Reporter, All India High CourtCases, AIR Civil Cases,Supreme Court
Cases, Delhi Law Times, Madras Law Journal, Maharashtra Law Journal, MP Law Journal,
Gauhati Law Reporter, Karnataka Law Journal, etc.
In this lucid narration of the Code, important sections have been referred in appropriate
places and also supplemented with latest case law in a very penetrating way so as to make
the work not only a guide to Indian civil practice but also a readable summary of the Code.
It has been designed in a way best suited to the requirements of those initiating their study
of procedural law.
I take this opportunity to take the blessings of my revered parents and teachers, to thank my
wife, Saraswati, and daughter, Anushree, to express gratitude to my learned colleagues
Dr S S Srivastava, Dr Lily Srivastava, Dr Preeti Mishra, Dr S K Pandey and Advocate
Kuldeep Srivastava, and the rest who expressed their valuable ideas and put forth their
suggestions to enrich this new edition. I extend my most sincere thanks to my publishers,
M/s LexisNexis Butterworths, for their support in the publication of this edition.
Shriniwas Gupta
Lucknow
Preface to the Ninth Edition
An acclaimed classic that has been in existence for more than three quarters of a century
without losing any of its sheen or usefulness, was sure to present some difficulties in revision.
The arrangement of the book as conceived and adopted by Sir DF Mulla and maintained by
successive editors, is avowedly different from other books on the same subject, which made
the task of revision further difficult.
The object of the present work, as conceived by Sir Mulla, is to give an idea to the student
of law, of the practice and procedure in the conduct of suits in and out of court. The Code of
Civil Procedure, 1908 is a voluminous statute and it is impossible for anyone, especially a
student, to go through the entire code and understand the same or be able to distinguish
relevant provisions. The work is a clear and brief exposition of the important provisions of
the Code and gives an overview of the conduct of civil suits in Indian courts. It is in the form
of lectures that were fourteen in number earlier. Now in view of section 89 CPC, a new
chapter on 'Alternative Dispute Redressal Mechanisms' (ADRs) has been added. In these
chapters, the course of an ordinary suit is followed from the moment the plaintiff determines
to sue till the time he obtains a decree and thereafter it follows appeal by the defendant and
further appeals. This method of treatment has been adopted so as to enable the student not
only to understand the provisions of the Code, but also to see how these provisions are
applied in practice.
Every important section of the Code has been noted in its appropriate place supplemented with latest decisions
and efforts have been made to make the work as useful as possible to all readers, not only as a guide to
Indian practice but also as a readable summary of the Code
arranged in a manner best suited to the requirements of beginners in the study of law.
The work has been written in a special narrative form that gives it a very personal touch
distinguishing it from other books on the subject. Loyalty to the original form and style has
been maintained while incorporating the change in language of the pleadings and
terminology. Moreover, an attempt has been made to substitute the latest case law laid down
by the Supreme Court as well as various High Courts in place of old case law. The last
edition in 2003 and since then the law through judicial decisions has undergone a change,
which has been duly incorporated at the appropriate places
I take this opportunity to seek blessings of my parents and teachers, to thank my wife,
children and other family members, to express gratitude to my dear friends and esteemed
colleagues Dr Sudhir Kumar Jain, Sh Sanjay Kumar, Ms Neena Krishna Bansal, Ms Shalinder
Kaur, Ms Sarita Birbal and all those who guided me and gave valuable suggestions in my
work on this new edition. I express my sincere thanks to M/s LexisNexis, Butterworths,
New Delhi, for their support in publishing the book in its present form, especially
Ms Pankhuri Shrivastava Publishing Manager, Ms Sheeba Bhatnagar and Ms Richa
Kachhwaha, Senior Legal Editors, for providing all the necessary input, material and support,
as well as Ms Debarati Banerjee, Commissioning Editor.
New Delhi Vinay Kumar Gupta

February 2008
Preface to the Eighth Edition
An acclaimed classic that has been in existence for more than three quarters of a century
without losing any of its sheen or usefulness, was sure to present some difficulties in revision.
The arrangement of the book as conceived and adopted by Sir DF Mulla and maintained by
successive editors, is avowedly different from other books on the same subject, which made
the task of revision further difficult.
The object of the present work, as conceived by Sir Mulla, is to give an idea to the student
of law, of the practice and procedure in the conduct of suits in and out of court. The Code of
Civil Procedure, 1908 is a voluminous statute and it is impossible for anyone, especially a
student, to go through the entire Code and understand the same or be able to distinguish
relevant provisions. The work is a clear and brief exposition of the important provisions of
the Code and gives an overview of the conduct of civil suits in Indian courts. It is in the form
of lectures that are fourteen in number. In these lectures, the course of an ordinary suit is
followed from the moment the plaintiff determines to sue till the time he obtains a decree
andthereafter it follows appeal by the defendant and further appeals. This method of treatment
has been adopted so as to enable the student not only to understand the provisions of the
Code, but also to see how these provisions are applied in practice.
Every important section of the Code has been noted in its appropriate place, and efforts have
been made to make the work as useful as possible to students, not only as a guide to Indian
practice but also as a readable summary of the Code arranged in a manner best suited to the
requirements of beginners in the study of law.
The work has been written in a special narrative form that gives it a very personal touch
distinguishing it from other books on the subject. The present edition, while trying to be
loyal to the original form and style, has tried to incorporate the change in language of the
pleadings and terminology. Moreover, an attempt has been made to substitute the latest
case-law laid down by the Supreme Court as well as various High Courts in place of old case-
law. The last edition of the book was published in 1994 and thereafter, the Code underwent
major amendments. These amendments have been duly incorporated at the appropriate
places.
I take this opportunity to thank my beloved wife and children and all those who assisted me
in my work on this edition. I would particularly like to thank Mr Vidyaraya Chakravarthy,
Commissioning Editor, LexisNexis Butterworths whose invaluable help in providing the
necessary material and support helped in publishing the book in its present form.
New Delhi Vinay Kumar Gupta

November 2003
Preface to the Seventh Edition
Since the professed object of the present work is to give an idea to the student of the
practice and procedure in the conduct of suits in and out of court, and since the arrangement
of the book as conceived and adopted by Sir DF Mulla and painstakingly maintained by
successive editors is avowedly different than other books on the same subject, the task of
revision presented some difficulties. This work is acclaimed as a classic. It contains a lucid
exposition of the material provisions of the Code of Civil Procedure, 1908. However, I felt
that the utility of this work can be enhanced by providing further comments on the material
provisions of the Code with the decisions of Supreme Court and High Courts and by adding
certain topics which are useful from the student's point of view. While making additions, I
have tried to take care to see, as far as possible, that the flow and the cadence of the book is
not disturbed. It became my obsession to ensure that this edition must continue to meet the
needs of the students as well as new entrants in the profession.
I feel immensely indebted to my father who has bestowed his utmost attention upon me all
throughout and which I have come to regard as my greatest fortune. I also take this
opportunity to acknowledge my deep sense of gratitude to Shri Girish R Pathak, Advocate,
who affectionately initiated me into legal practice and whose bold and unhesitating
entrustment of contentious work gave me opportunities to observe and experience the
working of labyrinthine principles of civil law in actual practice and to M/s NM Tripathi
Pvt Ltd, Bombay for their support in publishing this work.
Ahmedabad Umesh D Shukla

15 February 1994
. .
1.
Awt
Contents
. ta? pv
a.
Prefaceto theEleventhEdition to b
Preface to the Tenth Edition
Prefacetothe Ninth Edition

Preface to the Eighth Edition
n
yistyhuty viii
1X
Preface to the Seventh Edition x

Table ofCases xvi
CHAPTER 1 Introductory
CHAPTER 2 The Courts and their Jurisdiction
2.1 Constitution of Courts 7
2.2 Jurisdiction t.F 8

"Lack of Jurisdiction and Irregularexercise of Jurisdiction 9
2.2.1 Original and Appellate Jurisdiction 10
2.2.2 Jurisdiction as Regards Local Limits, Pecuniary Limits, and
Subject-matter 11
2.2.3 Ordinary Original and Extraordinary Original Civil Jurisdiction 12
2.3 Courts 13
2.3.1 Courts in Presidency Towns 13
2.3.2 Courts in other Parts of India 13
14
2.3.2.1 Original Jurisdictionh to s2us) brsanis
14
2.3.2.2 Appellate Jurisdiction
14
2.3.2.3 Courts ofSmalC
l ause itg1.121i 2h1nnat
15
2.4 The Three Rules
e
16
2.5 Suits of a Civil Nature
2.5.1 Express Bar 18
2.5.2 Implied Bar
Jurisdictional Fact"
t 19 20
CHAPTER 3 The Four Essentials of a Suit
3.1 Parties 23
3.2 Cause of Action 26
3.3 Subject Matter 29
3.4 Reliefs Claimed 29
Events happening after the institution of suit 30
3.4.1 Reliefs in Suits on Contracts 31
3.4.2 Reliefs in Suits for Torts 32
xii Contents
3.4.3 Reliefs in Suits on Mortgage 32
3.5 Plaint in Suit for Specific Performance 33

3.5.1 Summary 34
3.5.2 Comment 5
CHAPTER 4 Place of Suing
4.1 Placeof Suing 37
4.2 Sections 16, 17, 19 And 20 of the Code 38
4.2.1 Suits for Immovable Property 38
4.2.2 Suits for Compensation for Wrong Done to the Person or to
Movable Property 40
4.3 Place where Wrong is Committed 40
4.4 Residence 45
4.5 Carries on Business 46
4.6 Personally Works for Gain 48
4.7 Clause 12 of the Charter 49
4.7.1 Suits for Land 19
4.7.2 Suits other than those for Land 9
4.8 Points of Distinction Berween Sections 16, 17 and 20 of the Code and
Clause 12 of the Letters Patent 50
4.9 Ascertaining the Particular Court 51
4.10 Objection as to Place of Suing 52
4.10.1 Factors Constituting a Failure of Justice 53
4.10.2 Waiver of Objection to Territorial or Pecuniary Jurisdiction 54

"Objection Us 21(3) CPC in Execution proceedings" 55
4.11 Objections as to Over-valuation and Under-valuationl zmu 55
"Forum shapping 56
CHAPTER 5 Parties and Cause of Action
5.1 Preliminary 59
5.2 Transactions as Distinguished from Cause of Action 59
5.3 Joinder of Parties 63
5.3.1 Joinder of Plaintiffs 64
5.3.2 Joinder of Defendants 65
5.4 Procedure in Case of Misjoinder of Parties 6
5.5 Joinder ofCausesof Action 67
5.5.1 One Plaintiff, One Defendant, and SeveralCauses of Action 68
5.5.2 Joinder of Plaintiffs and Causes of Action 68
5.5.3 Joinder of Defendants and Causes of Action 69
13
.
5.5.4 Joinder of Plaintiffs, Defendants and the Causes of Action 70
5.6 Procedure in Case of Misjoinder of Parties and Cause of Action 71
5.7 Non-joinder of Parties 71
5.7.1 Effect of Non-joinder of a Necessary Party 72
5.7.2 Effect of Non-joinder of a Proper Party
5.7.2.1 Who is a Proper Party?
S. 73
73
Contents
CHAPTER 6 Steps in a Suit

6.1 Institution of a Suit [Order IV, Rule 2] 1b 31 75
6.2 Summons to Defendant [Order V 81
6.2.1 What Constitutes a Summons? elastt. 81
6.2.2 Service of Summons 83
6.2.3 Personal or Direct Service 191T 83
6.2.4 Mode of PersonalService 85
6.2.5 Substituting Service t tefot o2f911tmd 85
6.2.5.1 First Mode
6.2.5.2 Second Mode
11orroits3 A 86 87
6.3 Inspection of Documentsreferred to in the Plaint [Order XI,.I.e
Rule 15] 88
6.4 Written Statement [Order VIII) 88
6.4.1 Set-off and Counter Claim 91
anur3rots8ouob.i.
6.4.1.1 Set-off 91
6.4.1.2 Counter Claim 93
6.4.2 Written Statement in Suit for Specific Performance 96
6.4.3 Non-Compliance with Order for Written Statement 96
"Signing and Verification of pleadings under O.VI R.14 and 15 97
6.5 Amendment of Pleading and Particulars 98
6.5.1 ScandalousAllegations in Pleadingshoty 101
6.5.2 Particulars 102
CHAPTER7 Documents and Witnesses
7.1 Discovery and Inspection [Order XI]
tO l io rEiC103
7.I1n.t1errogatories L tulw
7.1.1.1 Form of Interrogatories
tonotto
zne't
tis4 7 104
7.1.1.2FormoftheAffidavitin Answerbaot lee leonii o0o

7.1.2 Affidavit of Documents 106
7.1.3 Premature Discovery 109
7.1.4 Inspection 109
7.1.5 Non-compliance with Order tor Discovery or Inspectionubsu() 110
7.2 Notice to Admit Facts or Documents [Order X1l]
7.3 Summoning ofWitnesses [Order XVI]
111
7.4 Production ofDocuments[Order Alll
CHAPTER 8 Hearing and Disposal
lpqy 0laT O
8.1 First Hearing and Settlement ofIssues [Order X; Order XII,

Rules 1-2; Orders X1-XV 117
8.1.1 Whether the Suit can be Decided on a Single Issue Leaving
Other Issues Undecided 120
8.2 Hearing of the Suit and Examination ofWitnesses [Order XVII] 124
"Evidence recorded by another judge under O.XVII R.15" 127
8.3 Judgment [Order XX] 128
Contents
xiv
"Alteration in judgment" 129
8.4 Decree [Order XX] 130
"Mesne Profits" 132
8.4.1 Kinds of Decree 133
"Passing of more than one preliminary or final decree 134

"Interest" U/s 34 CPC 135
"Costs" Us 35, 35-A, 35-B 136
8.5 Where Parties do not Appear [Order IX] 138
CHAPTER 9 Execution of Decrees
9.1 Meaning of Execution 143
9.1.1 Application for Execution 9T 144

9.1.2 Who may Apply for Execution 144
9.1.3 Against Whom Execution may be applied for 144
9.1.4 Notice Before Issuing Process 144
9.1.5 Mode of Execution 145
9.1.6 Execution againstPerson of Judgment-Debtor 146

9.1.6.1 Decree for Payment of Money 146
9.1.6.2 Decree other than Money Decree 146
9.1.6.3 Procedure 146
9.1.6.4 Restriction and Conditions
.
147
9.1.6.5 Period of Detention andRelease U 147

9.2 Payment out of Court 147
9.3 Garnishee 148
9.4 Stay of Execution 148
9.5 Execution against Property of Judgment-debtor 149

9.5.1 Irregularity in the Conduct of Saleof Artached Property 151
9.6 Disposal ofSale-proceeds 151
9.7 Resistance to Delivery of Possession to Purchaser 152

9.8 Courts by which Decrees may be Executed 152
9.9 Percepts 153
9.10 Questions to be Determined by Court Executing Decree 153
9.11 Procedure 154
Execution of"Cross-Decrees" 154

CHAPTER 10 Appeals from Original Decrees
10.1 Appeals from Original Decrees 155
10.2 Court of Appeal 158

10.3 MemorandumofAppeal 158
10.4 Stay of Execution 160
10.5 Securiry for Costs 161
10.6 Notice of Day for Hearing Appeal 161
10.7 Cross-appeal and Cross-objections 161

Contents X
10.8 Hearing of the appeal 163
l
10.9 Judgment and Decree 271 166
10.10 Consequence of Non-appearance of Parties
CHAPTER I1 Appeals from Appellate Decrees or Second Appeals
167
m
11.1 Second or Special Appeals g or 169
11.1.1 What is Substantial Question of Law? lisyn 172
11.1.2 In What Cases is a Second Appeal Possible? 174
11.2 Appeals to the Supreme Court 174
11.2.1 Procedure in Appeals to the Supreme Court
11.3 Appeals from Orders
iai 175
176
114 The Next Chapter 178
CHAPTER 12 References, Revision and Review
12.1 Reference F 179
12.2 Revision 180
12.3 Reviewof Judgment [Order XLVII) u 183
12.4 The Next Chapter 187
CHAPTER 13 Supplemental and Special Proceedings
(A) Supplemental Proceedings
13.1 Arrest and Attachment before Judgment 189

13.1.1 Arrest before Judgment [Order XXXVIII, Rules 1-4] 190
13.1.2 Attachment before Judgment [Order XXXVIII, Rules 5-12] 191
13.2 Temporary Injunction [Order XXXIXI i13173 193
13.3 Receiver [Order XL] 197
13.4 Security for Costs [Order XXV] 199
13.4.1 Discretion of the Court 200
13.5 Withdrawal of Suits [Order XXII, Rules 1-2]
13.6 Payment into Court [Order XXVI
13.7 Compromise of Suits [Order XXIII, Rule 3]
t Le1A 200
202
203
(B) SpecialProceedings
13.8 Special Case [Section 90; Order XXXVI] 205
13.9 Death, Marriage and Insolvency of Parties [Order XXI] 0 205
CHAPTER 14 Suits in Particular Cases
14.1 Scope 211
14.2 Notice before Suit 211
14.3 Consent before Suit 213
"Doctrine ofCypres e123 213
14.4 Title of the Suit 214
14.5 Parties 214
14.6 Contents of Plaint 215
14.7 Signing and Verification of Pleading 215
xvi Contents
14.8 Service of Summons, Appearance, Etc. 215

14.9 Procedure 215
14.10 Decrees 216
14.11 Execution ofDecrees 216
14.12 Other Special Provisions 216
14.13 Interpleader Suits [Section 88, Order XXXV] 216
14.14 Suits by or against Minor and Lunatic [Order XXXII] 217
Order 32-A "Suits concerning family matters" 218
14.15 Suits by Indigent Persons [Order XXXII] 218
14.15.1 Appeal as Indigent Person 221
14.16 Suits by or Against Firms [Order XXX] 221
14.16.1 When Partners May Sue or be Sued in Firm Name 221
14.16.2 Suit by a Firm 221

14.16.3 Suit Against a Firm 222
14.17 Suit Involving Question of Interpretation of Constitution or Validity of
Statutory Instrument 223
14.18 Summary Suits 223
14.19 Bar of Certain Suits 225
14.19.1 ASuit may be Barred asRes Judicata [Section 11] 225
14.19.1.1 Conditions
"Res Judicata between co-defendants
"Proforma Defendants"
ba 227
228
228
"Matter Collaterally in Issue 230
14.19.1.2 Representative Suits 231
14.19.1.3 Courts of Limited Jurisdiction 231
14.19.1.4 Applicability of ResJudicata to other Proceedings 231
14.19.2 Stayof Suit 232

14.19.3 Restitution 35
14.20 Miscellaneous 236
14.20.1 Foreign Judgments 236
14.20.2 Caveat 238
14.20.3 Powers of Court 239
14.20.3.1 Enlargement of Time (Section 148) 239
14.20.3.2 Inherent Powe 239
14.20.3.3 Power to Correct Error 241
14.20.3.4 Transfer of Suit 241
CHAPTER15 AlternativeDisputesRedressaM
l echanisms(ADR) h 245
APPENDIX City Civil Courts and their Jurisdiction 249
Index 253
lorrour hgr
CHAPTER.
INTRODUCTORY
The province of law differs from that of ethics. While ethics condemns every sort of
falsehood; law does not punish all falsehoods, but only those that affect the good
governance of the state. On referring to the Indian Penal Code, 1860, one finds that
che only kinds of falsehoods which are punishable under the Code are perjury,
forgery, cheating, and giving false intormation to a public servant in certain matters.
At times, law goes beyond ethics, and makes it penal to do an act which may not be
objectionable from an ethical point of view. A rule of the road in the United
Kingdom and India is that drivers shall keep to the left, and a breach of the rule
constitutes an act punishable in both the countries. A different rule prevails on the
continent of Europe, for the rule there is that drivers shall keep to the right. Neither
of these rules, however, is opposed to ethics.
Keeping aside ethics, a perusal of law is necessary. Law may be divided into civil
and criminal. It is not easy to distinguish berween crime and civil wrong and, in
some cases, the same act may be a crime as well as a civil wrong. Yet there is a
distinction between the two, which, in its essence, is quite simple. The distinction
does not lie in the nature of the act complained of, but in the consequences which
visit the wrongdoers. In case of a crime, the wrongdoer is punished and kinds of
punishment vary from fine to imprisonment, depending upon the nature of crime.
In case of a civil wrong, the aggrieved person is normaly compensated by monetary
relief. Law dealing with civil wrongs and the remedies available for their redressal
may be conveniently labelled as civil law. In the present lecture we are concerned
with civil law, as distinguished from criminal law. There is another division of law,
often expressed by the words 'substantive' and 'adjective' or 'procedural'.
Substantive law deals with rights and liabilities, imposes and defines the nature
and extent of legal duties; adjective law deals with practice and procedure. The
Indian Contract Act, 1872, the Transfer of Property Act, 1882, the Specific Relief
Act, 1963, the Indian Trusts Act, 1882, the Indian Succession Act, 1925, are all
instances of substantive law. The Code of Civil Procedure, 1908, the relevant civil
2 Mulla The Key to Indian Practice
-
courts Acts, the Presidency Small Cause Courts Act, 1882, the Indian Evidence Act,
1872, are instances of adjective law.
In these lectures, we are concerned with adjective law, but the study ofsubstantive
Chapter
law should precede the study of adjective law and, therefore, it is advisable to study
the five Acts mentioned above before commencing the study of the Code of Civil
Procedure, 1908 (Code) or of the IndianEvidence Act, 1872. A prior study of the
said Acts is essential to have a thorough understanding of the Code. In order to
grasp the provisions of the Code, simpler and easier methods have been evolved in
the present lectures.
In these lectures, we have traced the course of an ordinary suit from the moment
a plaintiff determines to sue until an appeal is preferred to the Supreme Court. As
our typical suit, we have taken a suit for specific performance, and we have given
the torms of the plaint, writ of summons, written statement, affidavit of
documents, interrogatories, summons to witnesses, issues, and decree in the suit.
The suit is then carried to an appeal, and ultimately to an appeal to the Supreme
Court. The proceedings in the suit and appeal are so conceived in these lecturesas
to facilitate taking note of almost every important section and rule contained in
the Code, and the relevant civil courts Acts. Within the limits of fifteen lectures,
an endeavour has been made to give a clear idea of the important steps that are
usually taken in an ordinary suit.
As stated above, the Code is an instance of adjective law dealing with practiceand
procedure. Procedure is a mere machinery, having its object to facilitate the
administration of justice, meaning thereby that procedure is a process necessaryto
be undertaken for enforcement or recognition of the legal rights and liabilities of the
litigating parties by a court of law. The procedural rules are equally important as
much as the rules of substantive law, but are not meant to defeat the substantive law
or obstruct the administration of justice.
The procedural rules are not mere technicalities and it is a misconception to
ignore them altogether as several other rules of procedure serve the very ends of
justice under the substantive law and some rules are needed for proper resources,
time management and public policy. However, procedural law is alwayssubservient
to substantive law. The procedure is handmaiden to the substantive rights of the
parties.' Nothing can be given by a procedural law that is not sought to be given by
a substantive law. "lt is a procedure, something designed to facilitate justice and
further its ends: not a penal enactment for punishment and penalties; not a thing
designed to trip people up."
Sukhbir Singh v. Brij Pal Singh, AIR 1996 SC 2510: (1997) 2 SCC 200.
2. Saiyad Mohammad Baker El-Edroos v. Abdul Habib Hasan Arab, AlR 1998 SC 1624: (1998) 4 SCU
343.
3. Sangram Singh v. Elction Tribunal, AIR 1955 SC 425.
Chapter 1 Introductory
Civil procedural law is an indispensable instrument for the atainment of justice

and it fulfils many legal and social functions and it assumes complementary
character when it puts into motion and gives life to substantive law. It assumes the
protective character by representing the orderly, regular and public functioning of
the legal machinery and the operation of the due process of law, and sustains and
safeguards every person in his life, liberty, reputation and property, while it assumes
remedial or practical character when it deals with the actual litigation process itself
and enhances the importance and application of rules for the conduct of the judicial
process.
Before 1 July 1859, there were no less than nine different systems of civil
procedure simultaneously in force in Bengal. The systems of procedure in other
parts of British India were equally numerous. The evils arising from this state of
things had been felt, and they were to a certain extent, remedied by the Code of
1859. However, the Code of 1859, aspassed, did not apply to Supreme Court, or to
the presidency small cause courts, nor did it extend to non-regulation provinces. In
course of time, it was extended to almost the whole of British India, and it was also
made applicable to the high courts by virtue of their respective charters. As the Code
was ill-drawn, ill-arranged and incomplete, a fresh Code had to be passed in 1877. A
few months' experience, however, showed that several amendments were desirable,
and after five years, another Code was passed, namely the Code of 1882. The Code
of 1882 remained in operation for more than quarter of a century and to remedy the
defects experienced during that period, a comprehensive revision of the code was
undertaken in the first decade of trwentieth century, and the Code of 1882 was
supplanted by the present Code in the year 1908." There have been extensive
amendments to the Code in the year 1976. The objects behind such amendments
were to ensure more expeditious disposal of civil suits and proceedings consistent
with accepted principles of natural justice and to simplify the procedure to a certain
extent. Having regard to the fact that the procedural niceties were becoming
potential source of motivated delays at the hands of unscrupulous litigants that the
necessity to cut short the delays at various levels was considered and the Code was
drastically amended by the Code of Civil Procedure (Amendment) Act, 1999, which
proposed several changes to the Code. However, the same was not notified and some
of the proposed changes under the Amendment Act of 1999 were deleted or
substituted through the Code of Civil Procedure (Amendment) Act, 2002,
consistent with the demands of fair play and justice which came into force on 1 July
2002. The important changes in the Code brought about by these amendments fix
the time limit for doing certain things, permit the parties to adduce evidence by
affidavits, and further the provision for settlement of disputes through arbitration,
conciliation, lok adalats and meditation. The Supreme Court in Salem Bar
4. Dr WhitleyStoke'sAnglo-IndianCodes,vol. Il, pp. 380-86.

5. Act 104 of 1976. For the background, see Law Commission of India, twenty-seventh and fifty-fourth
Reports, s. 1(3).
Mulla The Key to Indian Practice Chapter 1
Association and others v. Union of India and oshers has held the amendments in the
Code brought into force w.e.f. 1 July, 2002 as constitutionally valid.
The Code of 1882 contained 49 chapters, each chapter consisting of several

sections, the total number of sections being 652. The arrangement of the present
Code is a novel one. It proceeds upon the lines of the Judicature Acts and the Rules
framed under those Acts. It consists of two parts-the first containing provisions
which are more or less of a substantive character, and the second containing
provisions which relate to matters of mere machinery. The sections which form the
body of the Code constitute the first part. The rules and orders comprised in
Schedule I constitute the second part. As regards the sections, they cannot be altered
or amended except by the legislature. As regards the Rules, the high courts are
empowered to annul, or add to, all or any of the said rules, provided that they are
not inconsistent with the provisions of the sections.' The high courts have not been
slow in exercising this power, and the work of annulling, altering and adding to the
rules has been going on an extensive scale. If the work continues in the manner in
which it has been going on for some times past, we shall soon have a separate Code
for each state, a result which, from every point of view is most undesirable. As
regards high courts, it is to be observed that they have the power under S. 129 to
make rules to regulate their own procedure in the exercise of original jurisdiction.
Such rules may be inconsistent with the provisions of the Code, but they must not
be inconsistent with the letters patent establishing those courts.
The Code was enacted with the object of consolidating and amending the laws
relating to the procedure of the courts of civil judicature. It is a complete Code in
itself as regards the subject it deals with. It would govern all actions of a civil nature,
unless otherwise provided for and thus, its provisions are to be construed as
exhaustive with regard to the matters dealt within it. However, when there is no
specific provision in the Code, courts must be guided by the principles of justice,
equity and good conscience." Some of the provisions do make certain exceptions
and it is necessary to notice them."
The present Code came into force on 1 January, 1909. It extends to the whole of
India except" the areas mentioned in S. 1, but it does not apply in its entirety to all
the courts of India. Its preamble states that the Code was enacted to consolidate and
amend the law, relating to the procedure of the courts of civil judicature, but the
expression 'courts of civil judicature' is not defined in the Code. However, by
judicial process, it will be determined in each case, whether the Code is applicable to
a particular court or forum and if yes, to what extent. lts applicability can be
6. SalemBarAssociationandothersv. Union of India andothers, (2005) 6 SCC 344. .

7. Director ofTnspectionofTncome Tax v. Pooran Mal & Sons (1975) 4 SCC 568.
8. Iridium Indian Telecom Ltd v. Motorola Inc, (2005) 1 CTC 304 (SC): (2005) 2 SCC 145.
9. Manohar Lal v. Rai Bahadur Rao Raja Seth Hiralal, AIR 1962 SC 527.
10. SeeCode of Civil Procedure 1908, s. 4(1). Ram chand andSonsSugar Mils (Pu) Ltd. Barabanki(Ursar
Pradesh)v. KanhayalalBhargava, AlR 1966 SC 1899: (1967) 37 Comp Cas 42 (SC).
11. Iridium Indian Telecom Ltd. u. Motorola Inc., (2005) 1 CTC 304 (SC).
12. Code of Civil Procedure, 1908, s. 1(3).
Chapter Introductory
extended or restricted by legislatures. For instance, the Code applies to proceedings

in the testamentary and intestate jurisdiction, except as otherwise provided by
Indian Succession Act, 1925. Insolvency courts are courts of civil judicature, but
their procedure is regulated by special Acts. The Code also makes certain specific
provisions to this eftect. Thus, only a few portions extend to the presidency small
cause courts, and those portions are declared by S. 8 and by O. LI. As regards
provincial small cause courts, the whole of the Code extends to these courts, except
the portions specified in S. 7 and in O. L. As regards high courts in the exercise of
their ordinary original civil jurisdiction, the whole of the Code extends to those
courts, except the portions specified in S. 117 and S. 120, and in O. XLIX, R. 3. We
shall revert to this subject later on.
The Code is in two parts:
G) the body of the Code which contains ss 1 to 158; and
(i) the First Schedule containing O. I to O. LI and rules thereunder. While

sections lay down the general principles of the jurisdiction, the orders and
rules prescribe the method and manner in which that jurisdiction may be
exercised. Further, if the rules are inconsistent with the sections, the latter
shall prevail, the former being secondary in narure. However, the sections
and the rules have to be read together and construed harmoniously.
The Code, being a procedural law, is retrospective in operation and its provisions
apply to the proceedings pending at the time of is having come into force.
However, the procedure correctly adopted and concluded under the previous
(repealed) law cannot be re-opened for the purposes of applying new procedure." At
the same time it shall not affect the vested rights except where the amendment has
been expressly or by necessary implication been made retrospective." The legal
position has been aptly summarised saying that 'all procedural laws are retrospective
unless the Legislature expresly states to the contrary. It has been held that the
procedural laws in force must be applied at the date when the suit or proceeding
comes on for trial or disposal. It has been held that a Court is bound to take notice
of the change in the law and is bound to administer the law as it was when the suit
came up for hearing. It has been held that if a Court has jurisdiction to try the suit,
when it comes on for disposal, it then cannot refuse to assume jurisdiction by reason
of the fact that it had no jurisdiction to entertain it at the date when was
instituted'.
The function of adjective law is to facilitate justice and further its ends," and,
therefore, the rules of procedure must be construed liberally and in such manner so
as to render the enforcement of substantive rights effective."
13. Nani Gopal Mitra v. Stateof Bihar, AIR 1970 SC 1636: 1970 CrLJ 1396.
14. Mohan Lal v. Sawai Man Singh, AIR 1962 S75:(1962) I SCR 702.
15. Sudhir G. Angur v. M.Sanjeev ó Ors.(2006) 1 SCC 141.
16. Manohar Lal Bhogilal Shah u. State of Maharashtra, AIR 1971 SC 1511: (1971) 2 SCC 119.
17. Sukhbir Singh v. Brij Pal Singh, AIR 1996 SC 2510 : (1997) 2 SCC 200.
The Code recognises the inherent powers of the court and specifically provides
that nothing is to limit or otherwise affect the inherent powers of the court to make
Chapter 1
such orders as may be necessary for the ends of justice or to prevent abuse of the
process of the court." Where the Code is silent regarding a procedural aspect, the
inherent power of the court can come to its aid to act ex debito justitiae for doing real
and substantial justice berween the parties."
ii:
B
?
.. : ni .be
.
E.1.
18. Code of Civil Procedure 1908, s. 151.

19. Jet Plywood Put Lid v. Madhukar Nowlakha, AIR 2006 SC 1260: (2006) 3 SCC 699.
CHAPTER
2
THE COURTS AND THEIR JURISDICTION
2.1 CONSTITUTION OF COURTS
The Code pre-supposes knowledge on one's part of the various courts in India and
of their jurisdiction. For an exhaustive treatment of this subject, the Tagore Lectures
for the year 1872 can be referred to.
In the year 1858, i.e., the next year after the Revolt of 1857, a statute was passed
by the British parliament called the Government of India Act, by which the Govern-
ment of India was transterred from the East India Company to Her Majesty, Queen
Victoria. In the year 1861, there were (amongst others) two statutes passed by the
British parliament called the High Courts Act, and the Indian Councils Act.
The High Courts Act, 1861 empowered Her Majesty to establish, by letters
patent, under the great seal of the United Kingdom, a figh Court at Calcutta for
Bengal, a High Court at Bombay for the Bombay Presidency, and a High Court at
Madras for the Madras Presidency. The said Act also empowered Her Majesty, if at
any time it was though fit to do so, to establish a high court in and for any other
portions of the territories within Her Majesty's dominions in India. Pursuant to the
power so given, three high courts were established in the year 1862, namely, the
High Courts of Calcutta, Bombay and Madras, and one high court was established
in the year 1866, namely, the High Court of Allahabad. All these high courts were
established by letters patent or charter, and they are therefore called Chartered High
Courts. The charter, for each of these high courts defines the nature and the extent
of its jurisdiction.
The other statute, namely, the Indian Councils Act, 1861, empowered the
Governor-General of India in the Council to establish other courts in British India.
Pursuant to the power so given, a large number of courts were established in British
India, such as the presidency small cause courts, provincial small cause courts,
district courts, subordinate judges courts, munsiffs courts, etc. The jurisdiction of
these courts is defined in the Acts by which they have been established.
Before proceeding to enumerate the principal courts of India and to state the
Chapter 2
nature and extent of their jurisdiction, the following is a short note on the meaning
of the word 'jurisdiction'.
2.2 JURISDICTION
Jurisdiction means the extent of power of a court to entertain suits and applications.
It signifies the power, authority and competency of the court to adjudicate disputes
presented before it. It refers to the right of administering justice by means of law.'"
Before a court can be held to have jurisdiction to decide a particular matter it must
not only have jurisdiction to try it but must also have the authority to decide the
questions at issue and pass appropriate orders.*
Thus, jurisdiction means the power or authority of a court to inquire into the
facts, to apply the law and to pronounce a judgment and to carry it into execution.
There are three kinds of jurisdiction of courts, viz, pecuniary, territorial and
jurisdiction as to the subject matter. It is also classified into original and appellate
jurisdiction.
The limits on the jurisdiction of the court are imposed by a statute under which
the court is constituted and can be extended or restricted by the statute. Where no
restriction is imposed on the jurisdiction, it is said to be unlimited. Relying on the
maxim ex dolo malo non oritur action, the Supreme Court held that by an
agreement which absolutely ousted the jurisdiction of a court having jurisdiction
to decide the matter, would be unlawful and void, being contrary to public policy
under section 28 of the Indian Contract Act, 1872."
Where a court lacks inherent jurisdiction-whether pecuniary or territorial or the
subject matter jurisdiction to try a matter, express consent of the parties,' waiver or
acquiescence' cannot create it. Conversely, where a court has the jurisdiction,
consent of the parties, waiver, acquiescence or estoppel cannot take it away.
However, if rwo or more courts have jurisdiction to try a suit, the parties may, by
consent, select the one and exclude the other." The defect in the inherent
jurisdiction of a court, strikes at the very authority of the court to pass a decree. And
a decree passed by a court lacking jurisdiction is nullity and its invalidity can be set
up as a defence, when the decree is being relied upon, even at the stage of execution
or in collateral proceedings, and the defect can not be cured, even by the consent of
1. Official Truste, West Bengal v. Sachindra Nath Charterje, AIR 1969 SC 823: (1969) 3 SCR 92.
2. Official Trustee, West Bengal v. Sachindra Nath Chatterjee, AIR 1969 SC 823.
3. Ujain Bai v. State UttarPradesh, AIR 1962 SC 1621.
4. In A.B.C. Laminart u. A.P. Agencies, AIR 1989 SC 1239.
5. Patel Roadways Ltd, Bombay v. Prasad Trading Co, AIR 1992 SC 1514:(1991) 4 SCC 270.
6. PDasa Munni Reddyv. PAPpa Rao, AIR 1974 SC 2089.
7. Hira al Patniv. Kali Nath, AIR1962SC 199: (1962) 2SCR 747.
8. Kiran Singh v. Chaman Paswan, AIR 1954 SC 340 : (1955) 1 SCR 117.
9. Globe Trasport Corpn v. Triveni Engg Works, (1983) 4 SCC 707.
Chapter 2
the parties to the suit.

The Courts and their Jurisdiction
A decree passed by a court without jurisdiction is a coram

9
non judice (not before a judge)."
A court is entitled to determine whether a matter, in which it is asked to exercise
its jurisdiction, falls within its purview or not. In other words, a civil court has the
inherent jurisdiction to decide as to whether it has jurisdiction in a matter or not"
and in deciding the question of jurisdiction, the substance of the pleadings and not
their form must be considered."
The Apex Court approved the Full Bench decision of Allahabad High Court,
which holds that:"
"The plaintiff chooses his forum and files his suit. If he establishes the
correctness of his facts he will get his relief from the forum chosen: If he frames
his suit in a manner not warranted by the facts, and goes for his relief to a
court which cannot grant him relief on the true facts, he will have his suit
dismissed. Then there will be no question of returning the plaint for
presentation to the proper court, for the plaint, as framed, would not justify
the other kind of court to grant him the relief. If it is found, on a trial on the
merits so far as this issue of jurisdiction goes, that the facts alleged by the
plaintiff are not true and the facts alleged by the defendants are true, andthat
the case is not cognizable by the court, there will be two kinds of orders to be
passed. If the jurisdiction is only one relating to territorial limits or pecuniary
limits, the plaint will be ordered to be returned for presentation to the proper
court. If, on the other hand, it is found that, having regard to the nature of the
suit, it not Cognizable by the class of court to which the court belongs, the
plaintiffs suit will have to be dismissed in its entirety."
The court, having jurisdiction, has the power to grant interim relief. The power to
grant interim relief is discretionary and inherent in every court of competent
jurisdiction,5
"Lack of Jurisdiction and Irregular exercise of Jurisdiction"
The 'existence' of jurisdiction and 'exercise' of jurisdiction are not synonymous. A

court draws its jurisdictional competence from pecuniary and territorial limits, as
also the nature of subject-matter. The Court acquires jurisdiction only when al
three tests are satisfied. It may while exercising the jurisdiction properly vested in it,
also adjudicate other questions related and incidental to the main cause. If the Court
makes an error while deciding such incidental or related issues, it amounts to
10. Kiran Singh v. ChamatPasuwan, AIR 1954 SC 340.

. iranSinghv.Chama
PnasuwanA,lR1954SC340.
12. Life Insurance Corpn of India Automobilesd- Co, AIR 1991 SC 884: (1990) 4 SCC 286.
13. Bank of Baroda u. Mori Bhai, AIR 1985 SC 545.
14. Raizada Tpandas v. MIs Gorakhram Gokalchand AIR 1964 SC 1348.
15. Dalpat Kumar v. Prahlad Singh, AIR 1993 SC 276; Bina Murlidhar Henidev v. Kanhaiyalal Lokram
Hemidev, AlR 1999 SC 2171.
"irregular exercise of jurisdiction" as compared to a decision where its jurisdiction is

Chapter 2
barred expressly or by implication and thus the decision of Court suffers from "lack
ofjurisdiction".
An error of judgment committed by inferior Court is curable by the appellate
forum buta void order cannot be validated even by the superior forum.
Where a court having jurisdiction over the subject-matter of the suit and over
the parties thereto passes a decree in a claim which is barred by limitation and
fails to do its duty imposed by S.3 of the Limitation Act, the Court has merely
made an error of law which could be corrected only in the manner laid down by
this code.6
"Lack of Jurisdiction may arise in various ways. There may be an absence of those
formalities or things which are conditions precedent to the tribunal having any
jurisdiction to embark on an enquiry. Or the tribunal may at the end make an order
that it has no jurisdiction to make... The dicta of the majority of the House
of Lords, in the cited case shows the extent to which "lack and 'excess of
jurisdiction have assimilated. The net effect is to reduce the difference berween
jurisdictional error and error of law within jurisdiction almost to vanishing point.
The practical effect of the decision is that any error of law can be reckoned as
jurisdictional.The question whether there isexcess of jurisdiction or mere error
within jurisdiction can be determined only by construing the empowering statute
which will give little guidance... Even if lack of jurisdiction is assumed to result
from every material error of law - even an error of law within jurisdiction in the
primitive sense of the term...it does not mean that the order was vitiated by any
errorof law.
2.2.1 Original and Appellate Jurisdiction

A court may have original or appellate jurisdiction or both. In the exercise of its
original jurisdiction, a court tries original suits instituted in that court. In the exer-
cise of its appellate jurisdiction, it hears appeals from orders and decrees passed by
subordinate courts. There are some courts that are courts of original jurisdiction
only, eg, the provincial small cause courts. There are some courts that are courts
only of appellate jurisdiction, and not of original jurisdiction; thus, the High Court
of Allahabad is not a court of original jurisdiction, that is to say, no suits can be
instituted in that cour, but it has jurisdiction to hear appeals from decreespassed by
subordinate court in the state. There are other courts which have both original and
16. Ityavira Mathai v. Varkey Varke, AIR 1964 SC 907

17. Anisminic Ltd. v. Foreign Compensation Commision, (1969) 2 AC 147.
18. M.L. Sethi v. R.P. Kapur, 1972 (2) SCC 427.
Chapter 2 The Courts and their Jurisdiction
appellate jurisdiction, eg, the High Courts of Calcutta, Madras, Delhi and
Bombay," district courts, etc.
2.2.2 Jurisdiction as Regards Local Limits, Pecuniary Limits, and

Subject-matter
Then again we speak of the jurisdiction of a court
) asregardsirslocallimits
(i) as regards its pecuniary limits; and
ii) asregardsthesubject-matter ofsuits.
Every court has its own specific local territorial limits, which refers to the geo-
graphical boundaries, beyond which it cannot exercise its jurisdiction. These limits
(in the case of subordinate courts) are usually, fixed by the state government by
notification in the official gazette. Thus, the district courts can exercise jurisdiction
only within the district and high courts can exercise jurisdiction only over the
territory of that particular state.
The pecuniary limits of a civil court are laid down in the relevant civil court Act.
The pecuniary jurisdiction of a civil court refers to the amount or the value of cases
that can be presented before it for adjudication, and is determined on the basis of
the value of the relief claimed by a plaintiff. At the same time, it is always open to
the court to consider and also to the defendant to challenge, the correctness of the
valuation fixed by the plaintiff.
As regards pecuniary limits, there are certain courts which have no such limit
imposed upon their jurisdiction, such as high courts, district courts, and (in certain
states), certain other courts. The City Civil Court at Ahmedabad has unlimited
pecuniary jurisdiction while High Court of Gujarat has only appellate jurisdiction in
so far as suits are concerned. For areas outside Ahmedabad, courts of civil judge
(senior division), established under Bombay Civil Courts Act, 1879 have unlimited
pecuniary jurisdiction but there are other courts that have pecuniary limits imposed
upon their jurisdiction, e.g., the courts of civil judge (junior division) cannot try
suits in which amount claimed exceeds Rs 50,000, the presidency small cause
courts," which cannot try suits in which the amount claimed exceeds Rs 5,000, and
provincial small cause courts, which cannot try suits in which the amount claimed
exceeds Rs 2,000," or the amount fixed in each state by local legislature. In Delhi,
the court of civil judge has the jurisdiction to try suits in which the amount claimed
does not exceed Rs 3,00,000 and the court of district judge has the pecuniary
jurisdiction to try suits in which the amount claimed is more than Rs 3,00,000 but
19. See ch. 4; under el. 12 of the Charter

20. Presidency Small Cause Courts Act, 1882, S. 15.
21. Provincial Small Cause Courts Act, 1887, s. 15(2). The amount may be altered by the local
amendments.
does not exceed Rs 20 lacs and for suits in which the amount claimed is more than
Chapter 2
Rs 20 lacs, the High Court of Delhi has the original jurisdiction to try such suits.
For the pecuniary jurisdiction of different grades of courts, the various civil courts
Acts in the states can be referred to.
Further, the forum of appeal, as far as the pecuniary jurisdiction is concerned, is

also determined by the value of the suit and not by the amount decreed.
It is not proposed to go into the exhaustive details of hierarchy of courts or their

respective pecuniary jurisdictions. The establishment of various courts in different
parts of India differ from each other in their nomenclature as well as extent of
jurisdiction. Absence of uniformity in this regard is a factor which prevents the author
from making any further elaboration, except to the extent indicated hereafter.
In a suit for rendition of accounts, a court can pass a final decree for a sum exceed-
ing the imits of its pecuniary jurisdiction" and also for future mesne profis.
However, where a decree passed by court is beyond its pecuniary jurisdiction,
executing court cannot refuse to execute the decree as decree without jurisdiction."
It is the plaintiff's valuation in his plaint which prima facie determines the juris
diction" and the allegation made in the plaint which decide the forum. There is no
denying the fact that the allegations made in the plaint decide the forum. The
jurisdiction does not depend upon the defence taken by the defendants in the
25
written statement.
Jurisdiction, as to the subject-matter refers to he power and authority of the court
to try and entertain a particular type of suits. The jurisdiction of a court depends
upon the right to decide the case and not upon the merits of its decision." All courts
cannot try all types of suits. Different courts are empowered to try different types of
suits and certain courts cannot try certain suits because of the subject-matter
involved. The presidency small cause courts have no jurisdiction to try suits for
damages, for libel and slander, suits for specific performance of a contract, suits for
the recovery or partition of immovable property, suits for the foreclosure or
redemption of a mortgage of immovable property, suits for dissolution of
partnership or for partnership accounts, etc. Subject-matter means the relief claimed
and not property involved."
2.2.3 Ordinary Original and Extraordinary Original Civil Jurisdiction

In the exercise of its ordinary original jurisdiction, a chartered high court tries and
determines suits instituted in that court.
22. Mohan Meakin Ld v.IntermationsTrade, AIR 2004 HP11:2002 (3) Shim LC 39.
23. AK Mukherjee v. Regional Institute of Printing Technology, AIR 2003 Cal 40.
24. 1shwarappav. Dhanj, AlR 1932 Bom 111.
. Abdulla Bin Ali v. Galappa, AlR 1985 SC 577.

26. Pankaj Bhargav v. Mahendra Nath, (1991) 1 SCC 556: AIR 1991 SC 1233.
27. Kalu Parvati v. Krishnan Nair, (1969) Ker LJ 599.
13
In the exercise of its extraordinary original civil jurisdiction, a chartered high court
has the power to remove any suits from a court subordinate to it, and to try it itselt,
if it thinks proper to do so for the purpose of justice." By special Acts, certain high
29
courts (besides chartered high courts) also have original civil jurisdiction.
2.3 COURTS
2.3.1 Courts in Presidency Towns

The object of this lecture is not to provide a complete list of the courts, but to
explain some of the most important sections of the Code, which are hereinafter
reproduced in the form ofrules.
In each of the three presidency towns, there is a high court, a city civil court and a
small cause court. As regards high courts, there is no limit to their pecuniary
jurisdiction.
As regards city civil courts, their jurisdiction is dealt with in the appendix
The jurisdiction of presidency small cause courts has been dealt under
jurisdiction'.
2.3.2 Courts in Other Parts of India

Outside the presidency towns, there is in each state, a number of courts of different
grades. Their hierarchy differs from state to state, but they may roughly be divided
into the classes shown in the table of courts given on next page.
TABLE OF COURTS
Order of Grade MaharashtraState West Bengal and Tamil

Delhi State Nadu State
(a) District Judges District Judgesand District Judges

Additional District Judge
(b) Assistant Judges
Courts of Civil JudgesCivilJudges Subordinate

(Senior Division) Courts Judges Courts
mCourts of Civil Judges Munsiff's Courts

Junior Division)
28. Clause 13 of the Charter.

29. Delhi, Himachal Pradesh and Jammu & Kashmir.
30. See The Three Rules' below.
4
2.3.2.1 Original Jurisdiction
(i)
Of these three grades of courts, the district court is the principal court of
original civil jurisdiction in the district. In other words, it is the court of
the highest grade in the district.
i) Next in order ofgradeare the courts of civil judges of the senior division
in Maharashtra and Gujarat; courts of civil judges in Delhi and of
subordinate judges in Tamil Nadu and West Bengal. There is no limit to
the pecuniary jurisdiction of these courts, and they may entertain any suit
of a civil nature except in Delhi, where the court of civil judges can try and
entertain suits of the value upto Rs. 3,00,000.
(ii) Then come the courts of civil judges of the junior division in Maharash-
tra and Gujarat, and the munsifs' courts in Tamil Nadu and West
Bengal. The pecuniary jurisdiction of a civil judge of the junior division
in Gujarat is confined to suits of which, the value does not exceed Rs
50,000. Since pecuniary jurisdiction differs from state to state and it is
revised time and again, it is outside the scope of this book to provide
further details in this regard.
2.3.2.2 Appellate Jurisdiction

Of these three grades of courts, the district courts have everywhere appellate juris-
diction. An appeal lies to the district courts:
) fromdecreespassedby thecourtsbelongingtograde Il; and

i) from decreespassedby courts belonging to grade II, where the value of the
original suit does not exceed the prescribed amount.
An appeal lies to the high court:
) fromdecrees of courts belonging to grade II, where the value of the suit
exceeds the prescribed amount;
Cii) from decrees passed by the district court.
In some states, courts other than district judges have also been vested with such
jurisdiction.
2.3.2.3 Courts of Small Cause

Besides the above courts, there are provincial small cause courts established under
the Provincial Small Cause Courts Act, 1887. The courts of small causes are courts
of preferential jurisdictions and nor of exclusive jurisdiction." The pecuniary
jurisdiction of these courts is confined to suits of which the value does not exceed
specified limits. Again, there are about 44 kinds of suits which these courts have no
jurisdiction to entertain. A list to these suits is contained in the second schedule to
31. Abdul Hamid u. Ilrd ADJ Mainpuri, 2000 All LJ 763.

Chapter 2
the Act.
The Courts and their Jurisdiction
However, a decree passed by a court of small causes can be transferred to a

15
civil court for execution and can be executed by sale of immoveable property.
2.4 THE THREE RULES

The following rules are of great importance:
() No court shall entertain any suit, the amount or the value of the subject-
matter of which, exceeds the pecuniary limits of its jurisdiction (S. 6).
Thus, a small cause court at Ahmedabad cannot entertain any suit in
which the amount claimed exceeds Rs 5,000.
(i) No court shall entertain any suit which, as regards the subject-matter
thereof, has been excepted from its cognizance. Thus, neither a presidency
nor a provincial small cause court can entertain a suit for the recovery of
immovable property.
ii) Every suit shall be instituted in the court of the lowest grade competent to
try it (s. 15). Thus, a suit to recover Rs 500 as damages for breach of a
contract should, in a presidency town, be instituted in the presidency
small cause court, and not in the city civil court or the high court. It is not
that the high court or city civil court has no jurisdiction to try the suit. It
certainly has such jurisdiction but the above rule, which is a rule of
procedure, requires that the suit being one, which it is competent for the
small cause court to try, should be instituted in the small cause court, that
being the court of the lowest grade in the presidency town.
(iv) "The object underlying S.15 is to see that courts of higher grades are not
overburdened with suits and to afford convenience to the parties." But if
the suit is one, which is not competent for the small cause court to try,
eg., suit for the recovery of land situated in a presidency town, it should
be instituted in the high court or city civil court, as the case may be,
however small the value of the land may be.
Excepting certain suits specifically provided by law, as a rule, no original suit is
instituted in a district court. It is not because a district court has no original
jurisdiction, but because in every district there is a court, besides district court. This
is the court of civil judge, senior division, in the State of Maharashtra and Gujarat or
the court corresponding to them in other states. These courts may try suit of any
value, as there is no limit to their pecuniary jurisdiction.
Thus, let us take the case of a suit for partition of immovable property of the value
of Rs 10 akh. Such a suit cannot be instituted in any court belonging to class III,
because the value of the property exceeds its pecuniary jurisdiction. Then, is a court
32. The Provincial Small Cause Courts Act, 1887, Second Schedule.
33. Sunil Kumar v. PPrakash, AlR 2005 Ker 181 (DB): 2005 (1) KLT 800.
34. Union of India v. Ladulal Jain, AIR 1963 SC 1681.
35. As to city courts, see Appendix.
16 Mulla The Key to Indian Practice Chapter 2
belonging to class II competent to try the suit? Yes. And is a court belonging to cass
I (that is, a district court) competent to try? Yes. In which court should then the suit
be instituted? In the court of the lowest grade competent to try it." And which is
the court? It is a court belonging to class II, that is, the court of the civil judge of the
senior division in Maharashtra or Gujarat, and the court of the subordinate judge in
Tamil Nadu and West Bengal. It isbecause of the rule now under consideration that
no original suit is, except as aforesaid, instituted in a district court, and the work of a
district court is confined mostly to the hearing of appeals. However, in Delhi, the
district court has the original as well as appellate jurisdiction and the suit of the
nature mentioned above shall be filed in the district court as the court of civil judge
does not have a pecuniary jurisdiction to try and entertain a suit of such value.
As regards suits cognisable by a provincial small cause court, it is to be observed

that these courts have an exclusive jurisdiction in respect thereof, that is to say, suit
cognisable by a small cause court cannot be tried by any other court, having
jurisdiction within the local limits of the jurisdiction of the small cause court by
which the suit is triable."
2.5 SUITS OF A CIVIL NATURE

Another important rule is that no court has jurisdiction to try any suit unless it is of
a civil nature (s. 9). Here, a question arises as to what is a suit of a civil nature.
There is no definition provided in the Code nor any guidelines mentioned to

determine the 'civil nature'. A suit can be said to be of civil nature if it involves
determination of civil rights. Civil rights mean the rights and remedies vested in a
citizen, within the domain of private law as distinct from rights related to criminal
or political matters and public law.*
The civil rights can be of a private individual or other known legal entities as
distinguished from groups or associations without having any distinct legal
personality or recognition.
However, it does not follow that such groups or associations can never bring
actions in court of law. Ordinarily, questions relating to internal management ot
such groups or associations are regarded as not of a civil nature. The caste based
structure of our society affords a good example: disputes relating to caste were
declared by courts to be outside the purview of jurisdiction of civil courts. The
reason behind such rule was that it was not deemed fit or proper to interface with
the autonomy of caste and its social relations. Therefore, it was held that when a
member of caste was excluded from the man-pan invitation or an invitation to the
caste dinner for a breach of caste-rule, such member could not question the legality
or validity of the decision by filing a suit in the civil court." If a caste passed a
36. Code of Civil Procedure,1908,s. 15.

37. Provincial Small Cause Courts Act, 1887, s. 16.
38. PMA Metropolitan v Moran Mar Marthoma, AIR 1995 SC 2001: 1995 Supp (4) SCC 286.
39. Raghunath v. Janardan, (1891) 15 Bom 599.
17
resolution compelling its members to pay contribution on certain auspicious
40
occasions, it cannot be enforced in a civil court against a defaulting member."
However, if a person is expelled from his caste, a suit will lie for declaration that his
expulsion was unlawtul and for damages." Any suits in which the principal question
relates to religious rites or ceremonies are not suits of a civil nature. Suits for
vindication of mere dignity attached to an office are not suits of a civil nature. In
Devchand v. Ghanshyan," it was held that a suit to decide whether sutpanth cult is
within Vedic religion or not, or whether it is abhorrent to the feelings of Leva
Patidar community as a whole is not a suit of a civil nature. A claim by a priest that
he is entitled to receive certain honours in a specific manner will not be entertained
by a civil court. Following this rule, courts have refused to entertain claims for
precedence in worship of deity and to receive gifts on ceremonial occasions. If one
has to trace the underlying principle behind such and other decisions of similar
nature, it can be sately stated that the relations between parties in all such cases were
governed by either social or moral code of conduct. There was no legal right which
was sought to be enforced. In absence of such legal right, courts wisely refrained
from regulating behaviour of public on the basis of any social or moral code of
conduct which obviously did not possess any legal sanction. Such litigation must
now be rare, but the underlying principle should be grasped so that new situations
in different garbs meet the same fate, if rights or obligations sought to be enforced
are not based upon, or derived trom, statutes or contract.
However, the fact that determination of a question relating to civil rights depends
upon the decision of a caste question as regards religions rites and ceremonies, does
not take out the suit from the category of civil suits."
When the principal question in a suit relates to an office, it will be a suit of a civil
nature. The right to an office is a right of a civil nature. The suit to vindicate such
right is maintainable notwithstanding the fact that it may be necessary to decide
questions as to religious rites or ceremonies. The term office is nowhere defined, but
it has been judicially held that the essential condition for existence of an oftice is that
its holder must be under legal obligation to discharge certain duties which are
attached to the office and for the non-observance of which, he may be visited with
penalties. It is immaterial whether any fees are attached to such office or not. It is
equally immaterial whether such office is attached to a particular place or not.
The leadingg case on the subject is Sri Sinha Ramanuja Jeer v. Sri Ranga Ramanıja
Jeer. The principles in the aforesaid decision are stated as follows:
() A suit with respect to religious honours, dignities or privileges simplicitor
is not a suit of a civil nature.
40. Abdul Kadir v. Dhanna, (1896) 20 Bom 190.

41. Jagannath v. Akali, (1894) 21 Cal 463.
42. Devchand v.Ghanshyan, AIR 1935 Bom 136: (1935) 37 Bom LR 417.
45. Narayan v. Krishnaji, (1886) 10 Bom 233.
44. Ramakrusha Mahopatra v. Gangadhar Mahopatra, AIR 1958 Ori 26.
45. Sri Sinha Ramanuja Jeer v. Sri Ranga Ramanuja Jeer, AlR 1961 SC 1720.
(i) A suit to enforce one's right to office and to recover or enjoy perquisites,
remuneration, privileges or honours attached to such oftice is maintaina-
ble.
(ii) The essential condition for existence of office is that its holder shall be
under legal obligation to discharge the duties attached to such office and if
he fails to discharge such duties, he can be either compelled to perform
such duties or he shall be subjected to penalties.
The courts are empowered to decide all suits of a civil nature, excepting suits of
which, their cognisance is either expressly or impliedly barred." There is no absolute
right in any person to demand that his dispute be adjudicated upon only by a civil
court." It follows, therefore, that courts do not possess jurisdiction to try all suits of
a civil nature. There are certain types of suits of a civil nature from which the courts
are precluded, either expressly or impliedly, from trying and adjudicating. The
provision under S. 9 of the code enables a person to file a suit of civil nature
excepting those, the cognizance whereof is expressly or by necessary implication
barred." The civil courts have the jurisdiction to try all the suits of civil nature
except those entertainment whereof is expressly or impliedly barred. Any statute
which excludes such jurisdiction is an exception to general rule that all disputes shall
be triable by a civil court. Any such exception cannot be readily inferred by the
Courts
It is well settled principle of law that mentioning of a wrong provision or non
mentioning of any provision of law would by itself, be not sufficient to take away
che jurisdiccion of a court if it otherwise vested in it in law. While exercising its
power, the court would merely consider whether it has the source to exercise such
power or not.°
Both cases of express and implied exclusion or bar shall be illustrated separately.
2.5.1 Express Bar

The expression 'expressly barred used in the Code means barred by any enactment
or statutory instrument. A legislature can bar the jurisdiction of civil courts, in suits
of civil nature, provided it keeps itself within the legislative competence and does
not contravene the provisions of the Constitution." For example, S. 11 of the Code
bars a court from trying a suit in which the matter in issue has already been finally
decided earlier. It is a case of express bar.
The principles of finality or res judicata means 'a thing adjudicated' that is, an
issue that is finally settled by judicial decision. The plea of res judicata is a restraint
46. Dwarka Prasad Agarwala v. Ramesh Chandra Agarwala, AIR 2003 SC 1969 : (2003) 6 SCC 220.
47. Union of India v. Delhi High Court BarAssociation,(2002) 4 SCC 275: AIR 2002 SC 1479.
48. Vishnu Dutta Sharma v. Daya Sapra, (2009) 13 SCC 729 (736).
49. Ramesh Govindram v. Sugra Humayun lMirza Wakf, AIR 2010 SC 2897 (2900) : (2010) 8 SCC 726.
S0. J Kumardasan Nair v. IRIC Sohan, AIR 2009 SC 1333 (1336).
51. Commr of Income Tas, Bhubaneshwar v. Parmeshwari Devi Sultania, AIR 1998 SC 1276: (1998) 3 SCC
481.
19
on the right of a plaintiff to have an adjudication of his claim. The plea must be
clearly established, more particularly where the bar sought is on the basis of
constructive res judicata. The plaintiff who is sought to prevented by the bar of
constructive res judicata should have notice about the plea and have an opportunity
to put forth his contentions against the same. It is of universal application as it is
based on two age old principles, namely, 'interest veipublicaentsit finis litium which
means that it is in the interest of the State that there should be an end to the
litigation, and the other principle is 'nemo debet his ve ari, se constet curiae quod sit
pro un act eademn cause' meaning thereby that no one ought to be vexed twice in a
litigation if it appears to the Court that it is for one and the same cause. The plea of
res judicata is not a technical doctrine but a fundamental principle which means the
rule of law in ensuring finality in litigation. Thus principle seeks to promote
honestly and fair administration of justice and to prevent abuse in the matter of
accessing Court for agitating on issues which have become final berween the
parties. The principle is founded on three principles which are non-negotiable in
any civilized version of jurisprudence, namely:
(1) no man should be vexed twice for the same cause,
(2) it is in the interest of State that there should be an end to a litigation,
(3) a judicial decision must be accepted as correct.
If there is an issue berween the parties that is decided, the same operate as a res
judicata between the same parties in the subsequent proceedings.
In the same way, S. 293 of Income-tax Act, 1961 provides that no suit shall be
brought in any civil courts to set aside or modiły any assessment made under that
Act. However, civil courts have the jurisdiction to examine cases where the
provisions of the Act have not been complied with or where the statutory tribunal
has not acted in conformity with the fundamental principles of judicial procedure.
2.5.2 Implied Bar

A suit is said to be impliedly barred when it is not barred expressly, but yet its
cognisance is barred on account of general principles of law or public policy. For
example, a suit cannor lie to recover costs incurred in a criminal court." A suit also
cannot lie for damages for defamatory statements made during course of judicial
proceedings by a party or a witnes. Act of state cannot be called in question in civil
courts. Their cognisance is impliedly barred. It is an act of executive as a matter of
policy in the course of its relations with other states, e.g., making and performance of
treaties, seizure or annexure of territories etc are acts of states in its sovereign
52. Alka Gupta v. Narendra Kr. Gupta, (2010) 10 SCC 141 (149, 150).
$3. MNagbhusana v. State of Karnataka, AIR 2011 SC 1113 (1118): (2011) 3 SCC 408.
Gangai Vinayagar Temple v. Meenakshi Ammal, (2009) 9 SCC 757 (769).
S5. Ramchandra Dagdu Sonavane v. Vithu Hira Mahar, AIR 2010 SC 818 (828): (2009) 10 SCC 273.
S6. State of West Bengal v. Indian Iron and Steel Co Ltd, AIR 1970 SC 1298: (1970) 2 SCC 39.
.1899) 12All166.
58. (1901) 25 Bom 230.
20 Mula The Key to Indian Practice Chapter 2
capacity. Political questions are also impliedly excluded from the jurisdiction of civil
courts. Matters of policy in relation to other states cannot be made subject matter of
a suit.
An implied bar may be raised when a statute provides for a special remedy to an
aggrieved party." There are certain statutes which set up or establish tribunal for
redressal of grievances arising under the statutes. Whether such tribunals take away
the jurisdiction of civil courts in absence of an express bar contained in the statutes
is a question which has repeatedly cropped up and the extent of jurisdiction of such
tribunals and finality attached to their decisions have been subject matter of several
decisions. The leading decision on this point is Dhulabhai v. State of Madhya
Pradesh. It has been laid down that where there is no express bar, it is necessary to
examine the remedies and the scheme of the statute as a whole. If a statute creates a
new special right or liability and provides for the determination of the right or
liability and also provides that the tribunal shall decide all questions relating such
right or liability, it may be held that the jurisdiction of the civil court is impliedly
barred. It is a settled legal position that if the statute is ultra vires the constitution,
the tribunal or authority established, the statute cannot decide about such vires.
Where vires of the provisions is not involved, other aspect of the matters are
normally left to tribunals or authorities and remedy of a civil suit is barred. Special
Courts and tribunals are not substitutes for civil courts.
A statute ousting the jurisdiction of the civil court is strictly construed and
exclusion is nor to be readily inferred," such exclusion must be either explicitly
expressed or clearly implied.* 'A suit in : civil court will always lie to question the
order of a tribunal created by a statute, even if its order is, expressly or by necessary
implication, made final, if the said tribunal abuses its power or does not act under
the Act but in violation of its provisions. 65
Jurisdictional Fact"
Jurisdictional fact' means the composition of such facts and events which must be
in existence to enable the court of first instance to assume jurisdiction over a subject-
matter.
Where an inferior court or tribunal or body which has to exercise the power of
deciding facts is first established by an Act of Parliament, the legislature has to
consider what powers it will give to that tribunal or body. It may in effect say that if
a certain state of facts exists and is shown to such tribunal or body before it proceeds
59. NDMCv. Satish Chand, AIR 2003 SC 3187 : (2003) 10 SCC 38.
60. Dhuabhai v. State of Madhya Pradesh, AIR 1969 SC78.
61. OmPrakashSinghv. M. Lingamaiah, AIR 2009 SC 3091:(2009) 12 SCC 613.
62. See Dhruv Green Field Lrd v Huleam Singh (2002) 6 SCC 416; see also N. Padmamma v. S.
Ramakrishna Reddy, (2008) 15 SCC 517 (S523); Sulochana v. Rajinder Singh, (2008) 15 SCC 538 (593,
47); United India InsuranceCo. Lrd. v. Ajai Sinha, (2008) 7 SCC454 (467).
63. Nagri Pracharinvi Sabha v. Fifih ADJ, Varanasi, (1991) Supp 2 SCC 36.
64. Mario Catta Aereira v. State of Goa, 2010 (6) Mah LJ 115 (122) (DB).
65. Firm Seth Radha Kishan v. Administrator, MC, Ludhiana, AIR 1963 SC 1547.
21
to do certain thing, it shall have jurisdiction to do such things but not otherwise.
Therefore the requirement of condition precedent prior to the exercise of
jurisdiction is called "Jurisdictional Fact".0
The jurisdiction of civil court is to be determined having regard to the averments

contained in the plaint. A plea of bar to jurisdiction of a civil court shall be
considered having regard to the contentions raised in the plaint and not having
regard only to the reliefs claimed dehors the factual averments made in the plaint.
The civil court's jurisdiction is not ousted where special officer could have been
moved for the grant of ancillary relief."
It is always open to a party for his convenience to fix the jurisdiction of any
competent court to have his disputes adjudicated by that court alone, that is to say,
if one or more courts have jurisdiction to try the suit, the parties may choose any
one of the two competent courts to decide their disputes. And where parties under
their own agreement, expressly agree that their disputes shall be tried by that
particular competent court, then the party can only file the suit in that court alone
and it is not open to the parties to go at a diferent jurisdiction. Such a suit it filed
would be in violation of the said agreement between the parties." At the same time,
consent or failure to object," admission, omission or previous conduct cannot confer
jurisdiction on the court, where there is inherent want of jurisdiction."" In case of
overlapping jurisdictions of two courts in service matters, the employee has option
to choose forum when right accruesunder statute or common law." A workman in
LIC has choice of seeking remedy from civil court or industrial court. "4
For further reference, well-known commentaries on S. 9 of the Code may be

referred to. It is one of the important provisions and before instituting any suit, one
should be careful to examine whether it is of civil nature and if yes, whether its
cognisance is not expressly or impliedly barred.
66. Reg v. Commissioner for specialpurpose of Income Tax, (1888) 21 QBD 313.
67. Sulochana v. RajemdraSingh, AIR 2008 SC 2611 (2615).
68. SeeChurch of North India v. Lavajibhai Ratanjibhai, AlR 2005 SC 22544: (2005) 10 SCC 760.
69. Kalipindi A. Narasamma u. Alla N. Rao, (2008) 10 SCC 107 (109).
70. See Shriram City Union Finance Corpn Ltd v. Rama Mishra, 2001 (1) OLR 164: (2002) 9 SCC 613.
.iran v.Chaman,AIR 1954SC340
72. See Sita Ram Kashi Ram Kanda v. Pigmenis Cakes Chemicas Mfg Co, AIR 1980 SC 16: (1979) 4
SCC 12.
73. RajasthanSRTC v. Mohar Singh, (2008) 5 SCC 542 (545-46) : AIR 2008 SC 2553.
74. L.I.C. v. R. Suresh, (2008) 11 SCC 319 (324-25).
CHAPTER 3
THE FOUR EsSENTIALS OF A SuIT
The four essentials of a suit are as follows:
() Partiess
i) Causeofaction;
(ii) Subject-matter;
(iv) Reliefs claimed by the plaintif.
All these essentials must concur in every suit properly framed.
3.1 PARTIES
There must be at least two parties to every suit, namely, a plaintiff and a defendant.
There may, however, be two or more plaintiffs. Similarly, there may be rwo or more
defendants, but there must be at least one plaintiff and one defendant in every suit.
A person is a party to a suit if there is a cause of action against him.' In other words,
if cause of action no longer survives against a person due to his death or any other
unforeseen circumstance or if his name has been struck-off, such person shall nor
remain party to a suit even if his name continues on record erroneously.
The Code provides for a necessary party and a proper party and also contains
provisions relating to joinder, non-joinder and misjoinder of parties in a suit. A
proper party is a party who, though not a necessary party, is a person whose presence
would enable the court to completely, effectively and adequately adjudicate upon all
matters in disputes in the suit, though he may not be a person in favour of or against
whom the decree is to be made.
1. Ishwar Bhai Patel v. Harihar Bahera, AIR 1999 SC 1341: (1999) 3 SCC 457.
2. Mumbai International Airport Pvt. Ltd. v. RegencyConvention Centre & Hotes Put. Lid., AIR 2010 SC
3109 (3112) : (2010) 7 SCC 417.
The necessary party is one without whom, no order can be made effectively and
Chapter 3
a proper party is one in whose absence an effective order can be made but whose
presence is necessary for a complete and final decision of the question involved in
the proceedings.' Where the plaintiffs sought declaration of certain rights in a suit
on land belonging to State of Haryana, the State of Haryana was a necessary
party."
The proviso to R. 9 ofO. I of the Code provides that non joinder of necessary
party would be fatal. A petition was filed to challenge the promotion. The
candidates higher up in the seniority were not impleaded in the petition. Such a
petition could not be adjudicated upon in the absence of those senior candidates.
There is a distinction berween a necessary party and a proper party. A necessary

party is one, whose presence is essential and in whose absence, no effective decree or
order can be passed or made. A proper party is one, without whom a decree or order
can be passed or made, but whose presence is necessary for an effectual and complete
adjudication of the matter.'
There is difference berween the locus and right of impleaded, and the rwo cannot
be equated. A person having locus may not be denied appearance, but a person who
is a necessary party cannot be denied impleadment. Option to participate does not
mean right to be impleaded. A person is impleaded or can claim to be impleaded if
he has any interest or lis." For example, in a suit for pre-emption, the vendee is a
necessary party. The plaintiff in a suit being dominus litis, may choose the persons
against whom he wishes to litigate and cannot be compelled to sue a person against
whom he does not seek any relief. Consequently, a person who is not a party has no
right to be impleaded against the wishes of the plaintiff.
However, R. 1002) of O. I of the code provides for impleadment of proper or

necessary parties. If necessary party is not impleaded, the suit itself would be liable to
be dismissed. If a person is nor found to be a necessary or proper party the court has
no jurisdiction to implead him against the wishes of the plaintiff. Further, If the
court is satisfied that the presence of a particular person is necessay to effectively and
completely adjudicate all the disputes berween the parties, irrespective of the wishes
of the plaintiff, the court may exercise the power [O.1 R.10 (2)] and join a person as
party to the suit."
3. StateofAssamv. Union of lndia, (2010) 10 SCC 408 (412).

4. Jagtu v. Suraj Mal, AIR 2010 SC 3490 (3491): (2010) 13 SCC 769 (770) : (2010) 3 ARC 877 (SC):
Civil Appeal No. 644 of 2004 decided onAug. 5, 2010.
5. Public Service Commission, Uranchal v. Mama Bisht, AIR 2010 SC 2613. See aso Dist. Collector.
rikakulam v. Bagathi Krishna Rao, AIR 2010 SC 2617.
6. Sureshu. Yeormal Diut. Central Coop.Bank Lid AIR2008 SC 2432 (2435) : (2008) 12 SCC 558.
7. Arun Tiwari v. Zita Mansavi ShikshakSangh, AIR 1998SC 331.
8. Utar PradeshAvasEvam VikasParishadv. GyanDevi, AlR 1995SC 724: (1995)2 SCC 326.
9. Mumbai International Airport v. RegencyConvention Centre d Hoiels (1) Ltd., (2010) 7 SCC 417 (422.
423): AIR 2010 SC 3109.
10. Savitri Devi v. DistrictJudge, (1999) 2 SCC 577.
Chapter 3 The FourEssentialsof a Suit
Where, in a suit, the plaintiff fails to join a person who is either a necessary party
|5
or a proper party to the suit, it is a case of non-joinder of parties. Where two or
more persons are joined as plaintiffs or defendants, although they should not have
been joined in the suit, it is a case of misjoinder of parties.
Order I of the Code deals with parties to the suit and 0. 1, R. 9 provides that the
suit shall nor be defeated for non-joinder or misjoinder of a proper party. However,
it is not so in case of non-joinder of a necessary party.
Similarly, no decree may be reversed or substantially varied, nor any case be

remanded in appeal on account of any misjoinder or non-joinder of parties not
afftecting the merits of the case or the jurisdiction of the court as provided under S.
99 of the Code. However, this also does not apply to non-joinder of a necessary
party. But where all the affected persons had not been joined as parties to the
petition, and some of them only were joined, the Supreme Court took the view that
the interests of the persons who were before the court and were sufficently and well
represented and, therefore, the petition was not liable to be dismissed on that
ground i.e. (Non-joinder ofnecesssaryparty)."
The objections as to the non-joinder or misjoinder of parties must be taken at the
earliest possible opportunity and in all cases at or before, the settlement of issues and
if such objections not so taken, it will be deemed to have been waived. If the
objection as to non-joinder of necessary party has been taken by the defendant at the
earliest stage and the plaintiff declines to add the necessary party, he cannot
12
subsequently be allowed in appeal to rectity the error by applying for amendment.
With the object of bringing before the court, all the persons interested in a suit so
that all the disputes/questions may be finally decided in the presence of all the
parties, the court has been given power to strike out a party improperly joined and
to add party(ies), whose presence the court considers, necessary for the effectual and
complete adjudication of the questions involved in a suit, enabling the court to
decide all such questions without much delay, inconvenience and expense."
The general rule as regards parties to a suit is that all persons interested in a suit
shall be parties thereto. An exception to this general principle is formulated under
O. I, R. 8. It provides that when there are numerous persons having the same
interest in a suit, one or more of them, may with the permission of the court, sue or
be sued or defend such suit on behalf of others also. 'Since, O.I R.8 is merely an
enabling provision. It does not compel an individual to represent the body of
persons having the same interest if his action is otherwise maintainable without
joining the rest in the suit. Moreover, O.I R.8 can be invoked on the premise that
the persons have "same interest in the suit. It is not necessary that the "Cause of
action" must be the same."" Ordinarily a transferee pendente lite without leave of the
11. B. PrabhakarRao v. Stateof A.P, (1985) Supp. SCC 432.

12. Naba Kumar v.Radhashyam,AIR 1931 PC 229.
13. Anil Kumar Singh v. Shiv Nath Mishra, (1995) 3 SCC 147: 1994 (4) Scale 953.
14. T.N Housing Board v. T.N. Ganapathy ,(1990) 1 SCC 608.
court cannot be impleaded as a party." The lis pendens transfereel purchaser has no
Chapter 3
right of impleadment, lispendens does not prohibit a transfer. It, however, mandates
that transferee will be fully bound by decree that may be passed against his
transferor.°
The power of the court to add, strike out or substitute any party to a suit is
general in nature and discretionary, and is subject to specific statutory provisions.
The provision under R. 10(2) of O. I of the code speaks about the judicial discretion
of the court to strike out or add parties at any stage of proceedings. The court can
strike out any party who is improperly joined. It can add anyone as a plaintiff or
defendant if it finds that he is a necessary party or proper party. A beneticiary ot
trust has right to implead as party - He is a proper party He cannot be treated as
stranger."' The court under R. 10(2) of O. I of the code will of course act according
to reason and fair play and not according to whims and caprice."
The main object behind striking out or adding parties is to bring before the court
all the persons interested in a suit so that all the disputes may be finally determined
in presence of all the parties" effectually and completely, without much delay,
inconvenience andexpense. The power to add, strike out or substitute any party to
a suit can be exercised by the court suo motu.
3.2 CAUSE OF ACTION

Action' means suit while a "cause of action' means literally the cause or the set of
circumstances which leads up to a suit. A cause of action arises when a legal right is
infringed. The expression 'cause of action' as used in the Code means every fact
which it is necessary for the plaintiff to prove that he is entitled to a decree in the
suit; in other words, the media upon which the plaintift asks the court to arrive at a
conclusion in its favour."
The term 'cause of action' has not been statutorily defined although it has received
judicial interpretation. The term is held to include all those facts which must be
proved or established in order to succeed. To put it differently, everything which if
not proved would give the defendant a right to an immediate judgment must be part
of cause of action. The expression'cause of action means the bundle of facts which
gives rise to a right or liability."" It is a bundle of facts, whose proof is a sine qua non
for ultimate success in the suit. The classic definition of the expression "Cause of
Action" is found in the instant case," wherein Lord Brett observed: "Cause of action
15. Sunil Gupta v. Kiran Girhotra, (2007) 8 SCC 506 (510).

16. S.N. Arora v. Brokers & BrokersPur. Ltd., AIR 2011 Del 89 (93-96) (DB): 2010 (118) DRJ 631.
17. Baluram v. P. Chellathangam AIR 2015 (SC) 1264.
18. Mumbai International Airport Put. Ltd. v. Regency Convention Centre Hotels Pvt. Ltd, AIR 2010 SC
3109 (3114): (2010) 7SCC 417.
19. Savitri Devi v. DistrictJudge.Gorakhpur,AIR 1999 SC 976: (1999) 2 SCC577.
20. Anil Kumar Singh v. Shiv Nath Mishra, (1995) 3 SCC 147: 1994 4) Scale 953.
21. Chand Koer v. Pratap Singh, (1889) 15 IA 156: (1889) ILR 16 Cal 98.
22. Sonic Surgical v. National Insurance Co. Ltd., (2010) 1 SCC 135 (137) : 2009 (13) Scale 363.
23. Cooke v. Gill,(1873) 8 CP 107.
Chapter 3 The FourEssentials ofa Suit
means every fact which it would be necessary for the plaintiff to prove, if traversed,
in order to support his right to the judgment of the court."
Whether a particular fact constitutes a cause of action is determined with reference

to the facts as disclosed in the plaint and by taking into account the substance of the
matter rather than the form of action." For deciding whether the facts averred by
the plaintitf would or would not constitute cause of action, partly or wholly, the
court must consider whether such facts constitute material, essential or integral part
of the cause of action. If it is, it forms a cause of action, but if it is not, it does not
form a cause of action." It has no relation whatsoever to the defence which may be
set up by the defendant, nor does it depend upon the character of the relief prayed
for by the plaintiff.
A court enjoys jurisdiction in a suit, if the cause of action arises within the local
limits of its jurisdiction. And even if a part of the cause of action arises within the
local limits of its jurisdiction, it has the jurisdiction to try and entertain the suit. The
provision under R. 3 of O. II of the Code, specifically provides where cause of
action are united, the jurisdiction of court as regards the suit shall depend on the
amount or value ofaggregatesubject-matters at the date of instituting the suit."
Every plaint must disclose a cause of action; if it doces not, it is the duty of the
court to reject the plaint (O VIl, R. 11). When the plaint read as a whole does not
disclose material facts giving rise to a cause of action which can be entertained by a
civil court, it may be rejected in terms of O. VII, R. 11 of the Code." The court
cannot dismiss a suit for not disclosing cause of action, but can only reject the
plaint." Hence in drafting a plaint, one must be very careful to see that the plaint
discloses a cause of action. The object underlying O.VII R.1 (e), which requires that
the plaint shall contain the particulars about the facts constituting the cause of
action and when it arose, is to enable the court to find out whether the plaint
discloses the cause of action because the plaint is liable to be rejected under O.vII
R.11 CPC, 1908. The purpose behind the requirement that the plaint should
indicate when the cause of action arose is to help the court in ascertaining whether
the suit is not barred by limitation. Further, the error in mentioning the date on
which the cause of action had arisen in the plaint in such a case would not disentitle
the plaintiff from secking relief from the court in thesuit.
What is the cause of action in a suit for damages for breach of a contract? In order
to answer this question, we must ask ourselves the further question as to what facts
must be proved by the plaintift in such a suit so that he may succeed in obtaining a
decree in his favour? The answer is, that there are two facts which he must prove,
namely:
24. Udhav Singh v. Madhav Rao Scindia, AIR 1976 SC 744: (1977) 1 SCC 511.
25. Alchemist Lid. v. State Bank of Sikkim, (2007) 11 SCC 335.
26. Dabur India Ltd. v. K.R. Industries, AIR 2008 SC 3123 (3130): (2008) 10 SCC 595.
27. Abdul Gafur v. State of Uttarakhand, (2008) 10 SCC 97 (102): 2008 (11) Scale 263.
28. Canara Bank v. Garts Ind Tex (P) Ltd., 2009 (1) KLT 368 (371-72) (DB).
29. Kuldeep Singh v. Ganpat Lal (1996) 1 SCC 243.
Mulla The Key to Indian Practice
28 Chapter 3
) that thedefendantenteredinto theallegedcontract with him; and

i) that thedefendant committed abreach of this contract.
In other words, the cause of action consists of rwo parts, namely:
) themakingof thecontract;and
(ii) the breach thereof by the defendant. Both these facts must therefore be
alleged in the plaint, and they must both be proved at the hearing of the
suit, to entitle the plaintiff to a decree for damages against the defendant.
If A enters into a contract with B in Bombay to sell and deliver goods to B in
Bombay, but A fails to deliver the goods, the whole cause of action is said to arise in
Bombay. If the contract is made in Bombay, and the goods are to be delivered to B
in Madras, and A fails to deliver the goods to B in Madras, a part only of the cause
of action (namely, the making of the contract) is said to arise in Bombay, and a part
so far as the breach is concerned) in Madras. In other words, if the contract is to be
performed at the place where it is made, the whole cause of action is said to arise in
that place, but if it is made in one place, and is to be performed in another place, a
part of the cause of action is said to arise in one place and a part in another place.
Even the performance of contract may be required to be made at more places than
one. If A enters into a contract with B in Bombay whereby A agrees to deliver goods
to Bat Madras in consideration of B agreeing to pay to some other person, on A's
behalf, the price of such goods at Calcutta, then the contract is made at Bombay and
is required to be performed by A at Madras and by B at Calcutta. It can be said that
a part of the cause of action has arisen at all the three places. This distinction is very
important in determining the court in which the suit is to be instituted, and it will
be dealt with in the next chapter."
Let us now take the case of a tort. If A brings a suit against B for damages for a
libel upon A, then A must prove, in order that A may be entitled to a decree, the
following three facts, namely:
G) that the writing complained of was published by the defendant;
i) that it isuntrue;and
(ii) that it is defamatory for A.
These three facts constitute As cause of action, and they must all be alleged in As
plaint. In the case of tort of malicious prosecution, A must establish that the
defendant launched a criminal prosecution against him, that it terminated in A's
favour and that it was launched maliciously against A without any reasonable and
probable cause.
To know the essential facts which constitute the cause of action in a particular
case, one must have a thorough knowledge of the substantive law bearing upon the
30. Chapter 4 'Place of Suing'.

29
case. In case of doubt or difficulty, leading cases compiled in various textbooks on
the subject must be referred to.
Before drafting the plaint, one is well advised to look at the substantive law
governing the matter. In fact, without close examination of relevant facts in the
context of applicable substantive law, it is highly possible that litigation may misfire
It is recommended that standard textbooks on drafting pleadings be referred to
before finalising a plaint in order to avoid any mishap. In bigger cities, courts have
shown tendency to construe pleadings rather strictly in such cases. A plaint will
constitute a foundation and except by amendment thereot, one is not permitted to
travel beyond the plaint.
In a suit for declaration of title and injunction the appellant had the cause of
action to sue for specific performance in 1991 but he omitted to do so, and hence he
should not be allowed to sue on that course of action which he omitted to include
when he filed his suit. The court considered this omission as relinquishment of that
part of its claim. The suit was therefore, hit by the provision ofO. II, R. 2 of the
code. Where rwo causes of action are distinct and different O. I, R. 2 of the code
would not come into play. O. II, R. 2 of the code would come into play only when
both suits are based on the same cause of action and the plaintiff had failed to seek
all the reliefsbased on or arising from the cause of action in the first suit without the
leave of the court."
3.3 SUBJECT MATTER

Jurisdiction over subject matter is a sine qua non, without which a court shall be
incompetent to try the cause.
The subject matter of a suit is the property claimed in the suit. Such property may
be movable or immovable.
3.4 RELIEFS CLAIMED

Every suit shall be instituted by presenting the plaint to court or any officer
appointed in this behalf. Every plaint shall comply with rules contained in O. VI
and O. VII as far as they are applicable. The plaint shall contain the following
particulars:
) Name of the court in which suit isbrought.

i) Name,descriptionandplace ofresidenceof the plaintiff.
(iii) Name, description and place of residence of the defendant, so far as they
can be ascertained.
(iv) Facts constituting cause of action and when it arose.
31. Van Vibhag Karamchari GNSS Maryadit v. R. Chander, AIR 2011 SC 41 (46): 2010 (11) Scale 99.
32. Alka Gupta v. Narendra K. Gupta, AIR 2011 SC (14) : (2010) 10 SCC 141.
30 Mulla The Ky to Indian Practice Chapter 3
(Facts sharing that the court has the jurisdiction over the matter.
(vi) Valuation of subject matter for the purposes of jurisdiction and court fees.
vii) Reliefsclaimed.
Every plaint shall state specifically the reliefs which the plaintiff claims. The same
rule applies to any relief claimed by the defendant in his written statement."The
general rule, no doubt, is that the relief should be founded on pleadings made by the
parties. But where the substantial matters relating to the title of both parties to the
suit are touched, though indirectly or even obscurely, in the issues and evidence have
been led about them, then the argument that a particular matter was not expressly
taken in the pleadings would be purely formal and technical and cannot succeed in
every case. Further to allow one party to rely upon a matter in respect of which the
other part did not lead evidence and has had no opportunity to lead evidence, would
introduce considerations of prejudice, and in doing justice to one party, the court
cannot do injustice to another."
Moreover, the suit cannot be dismissed merely on the ground that the plaintiff has
claimed a larger relief that he is entitled to. But the lesser relief to which the plaintiff
is entitled will be granted in his favour," and the court cannot grant a larger relief to
the plaintiff than that claimed by him even if he is entitled to it unless he gets his
plaint amended with the leave of the court.
Events happening after the institution of suit
The underlying principle is that the Court shall determine the rights of the paries on the
basis of their claim or counter-claim as on the date of institution of suit and ignore the
subsequent events, if any. This rule of prudence however can be deviated by the Court
in a casewhere the effect of over-looking the later events would lead to miscariage of
justice. "However, the Court has power to take note of subsequent events and mould the
relief accordingly subject to the following conditions being satisfied
) char cherelief, as claimed originally has, by reason of subsequentevents,

become inappropriate or cannot be granted;
i) that taking note of suchsubsequentevents or changedcircumstanceswould

shorten litigation and enable complete justice being done to the parties;
(ii) that such subsequent event is brought to the notice of the court promptly
and in accordance with the rules of procedural law so that the opposite
33. Code of Civil Procedure,1908, O. VII, R. 7.

34. Bhagwati Prasadv. Chandramaul, AIR 1966 SC 735.
35. Udhaw Singh v. Madhav Rao Scindia, (1977) 1 SCC 51.
36. Staseof Bihar v. Dr. Radha Kishna, (2002) 6 SCC 308.
Chapter 3 The Four Esentials ofa Suit
party is not taken by

-
surprise...The Court may thus depart from
the above rule and mould the relief in the light of altered circumstances.
Every suit must, as far as practicable, be framed to provide grounds for final
decision on the subjects in dispute and prevent further litigation concerning them,
and thus must include the whole of the claim which the plaintift is entitled to make
in respect of the cause of action. Where neither the title of the plaintiff nor previous
possession of the plaintiff nor encroachment by the defendants was made out, the
suit was held liable to be dismissed. Splitting of claims is barred, however, any
portion of the claim can be relinquished.
Where a question arises as to whether a plaintiff has claimed a particular relief, the
court must read the plaint as a whole, and consider the substance of the matter
rather than the form of pleading"
Where the suit is for recovery of money, precise amount must be stated unless suit
itself is for accounts or mesne profits or debts which cannot be estimated. In such
cases, approximate amount must be mentioned so that reliefs can be claimed
simultaneously or in the alternative. In fact, it is convenient to file a suit for specific
performance and in the alternative, for damages. Where the subject matter of suit
is an immovable property, there must be proper description of such property,
sufticient to identiky it and whenever applicable, its boundaries and number in
revenue records must be provided.
Ubi jus ibi remedium means, where there is a right, there is a remedy. The word jus
has reference to the cause of action; the word remedium to relief. The nature of the
relief or remedy to which a plaintif is entitled depends upon the nature of his rights
or his cause of action.
3.4.1 Reliefs in Suits on Contracts

In suits on contracts, there are three remedies open to the aggrieved party according
to the nature of the contract, namely:
) specpifiecrformance
41
i)damages;
(i) injunction.
As a general rule, it may be stated that where there is a breach of a contract to
transfer immovable property, the plaintiff is entitled to specific performance ot the
37. Om Prakash Gupta v. Ranbir B. Goyal, (2002) 2 SCC 256.

38. T.K. Mohammed Abubucker v. PSM Ahmed Abdul Khader, (2009) 14 SCC 224 (232).
39. Hindaleo Industries Ltd u. Union of India, (1994) 2 SCC 594: 1993 (4) Scale 666.
40. Specitic Relief Act, 1963, ss. 10-20.
41. Indian Contract Act, 1872, s. 73.
42. Specific Relief Act, 1963, ss. 36-37.
32 Mulla The Ky to lndian Practice
contract," but where the breach is of a contract to transfer movable property, the
Chapter 3
plaintiff is not entitled to specific performance, but to damages only. Thus if A

agrees to sell B, A's house for Rs 1,000 and A fails to transfer the house to B, then B
is entitled to a decree directing A to convey the house to B on B paying the purchase
money toA. It Aagrees to sell B I00 maunds of sugar at the rate of Rs 3 per maund
on a certain day and fails to deliver sugar to B, then B is entitled to only damages
against A; for B can buy sugar of a similar quality in the market, and if B has to pay
more for it, say at the rate of Rs 4 per maund, B may claim from A as damages Rs
100, being the difference berween the contract price and the market price.
Injunction is also one of the remedies in the case of certain contracts. Thus, if A
lets B his land on condition that B should nor dig sand or gravel thereout, and B
threatens to do so, A is entitled to sue B for an injunction to restrain B from digging
in violation of the contract.
3.4.2 Reliefs in Suits for Torts

Where a tort has been committed, the remedy open to the party aggrieved is
damages. Where a tort is about to be committed, the appropriate remedy is
injunction. Thus, if B is about to publish statements defamatory of A, A may sue B
for an injunction to restrain B from publishing them. If B has already published
them, A may sue B for damages.
3.4.3 Reliefs in Suits on Mortgage

n suits on mortgage, there is one remedy open to the mortgagor, namely,
redemption, and there are two remedies open to the mortgagee, namely, sale or
foreclosure, according to the nature of the mortgage.4
"4
Illustration
A borrows Rs 5,000 from B. It is agreed that A should repay the amount with
intereston January 1915. As security for the debt, A transfers the house to B,
subject to a proviso that B will re-transfer the house to A upon payment of the
mortgage-money on 1 January 1915. If A tenders the mortgage-money to B on or
after the due date, but B refuses to accept it alleging that more is due to him, and
refuses also to transfer the house to A, A may sue B for redemption of the mortgage.
On the other hand, if A fails to pay the mortgage-money to B on the due date, B
may sue A either for foreclosure of the mortgage or for sale of the house. The effect
of a final decree for forecdosure in favour of B is to debar A from all rights to
redeem the mortgaged property.
43. In a proper case, damages can be awarded, see New Maneekchowk Spinning Et«. Co. v. Seth Govinddas
Gjudgment of the Supreme Court dated 4 March 1966 in CA No 621 of 1963).
44. Transter ofProperty Act, 1882,S. 6/.
45. Ibid, s. 87; Code of Civil Procedure, 1908, O. XXXIV, R. 3.
ter 3 The FourEssentials ofa Suit
reliefs claimed in a plaint are called prayers; they are contained in the la
raphof the plaint.
PLAINT IN SUIT FOR SPECIFIC PERFORMANCE

ng stated the four essentials of a suit, the following is the form of a plaint in
for specific performance. Such a suit is brought by one person (AB) again
her person (CD) when the latter (CD) has agreed to sell his property to AB, b
fuses to carry out the agreement to sign the necessary deed of sale. If AB wan
roperty himself he has to sue for specific performance, but if he is not particular
t getting the property, he may sue CD for damages only for breach of the
act.
Form of Plaint in Suit for SpecificPerformance
In the High Court of Judicature at Bombay [O. VI, R. 1(a)]

Ordinary Original Civil Jurisdiction
Suit No .. of 1914
of Bombay, Hindu inhabitant, a coal broker,
ng in the Fort. Plaintiff [O. VII, R. 1(6)]
D of Bombay, Mohammedan inhabitant, a
merchant, residing outside the Fort. Defendant [O.VII, R. 1(c)]
e plaintiff above named states as follows:
1. By an agreement, dated 1 April 1914, and signed by t

defendant, the defendant contracted to sell to the plaintiff certa
immovable property therein described and referred to, for the sum
Rs. 2,00,000. A copy of the said agreement is hereto annexed and marke
A [O. VI, R. 9; O. VII, R. 3].
2. On 1 May 1914 the plaintiff tendered Rs 2,00,000 to the defendant, a
demanded a transfer of the said propery by a sufticient instrument, b
the defendant has not executed any instrument of transfer [O. VII,
1(e), R. 5].
3. The plaintiff has been and is still ready and willing to pay the purchas
money of the said property to the defendant
4. The said agreement was made in Bombay, the said property is situated in
Bombay, and the defendant resides in Bombay. [O. VII, R. 1(].
T15.
Mulla The Kay to Indian Practice
34 Chapter 3
6. The plaintiff will rely on the documents a list whereof is hereto annexed
and marked B [O. VII, R. 14].
7. The plaintif, therefore, prays: [O. VII, R. 1(g)]

(a) That the defendant may be ordered to transfer the said properry to
the plaintiff by a sufficient instrument. [O. VII, R. 7].
(6) In the alternative, that the defendant may be ordered to pay to the
plaintiff Rs 2,00,000 as damages for breach of the said contract. [O.
VII, R. 71
(c)That the defendant may be ordered to pay the plaintiff's costs of his
suit (Note-Strictly speaking, this prayer is unnecessary).
GH AB
Plaintiffs Attorney Plaintiff
[O. V1, R. 14] u ui [O. VI, R 14]
1, AB, the plaintiff above named, do solemnly declare that what is stated in paras
1, 2, 3, 4 and 6 is true to my own knowledge, and that what is stated in the
remaining paras, is stated on information and beliet, and I believe the same to be
true. [This clause is called verification clause]
[O. VI, R. 15] [O. VI, R. 15]

Solemnly declared
nofsAB
at Bombay on Plaintiff
1 June 1914
Before me
XY
Commissioner
3.5.1 Summary
In the form of the plaint given above there are four essentials of a suit, namely:
i) the parties, who are AB, the plaintiff and CD, the defendant;
(i) the cause of action, which is set out in paras 1 and 2 of the plaint,
consisting of the making of the contract and breach thereof;
(ii) the subject-matter, which is referred to in para 1 of the plaint, being the
property agreed to be sold by the defendant to the plaintiff; and
iv) the reliefs claimed, which are specific performance, and, in the alternative,
damages, if the court decides that specific performance ought not to be
granted4. 7
47. Specific Relief Act, 1963, ss. 21 and 24.

3.5.2 Comment
The reason why para 3 has been inserted is that a plaintiff suing for specific
performance must himself be ready and willing to pertorm his part of the agreement.
It is a statutory requirement that the plaintiftf must aver and prove that he has
performed or has always been ready and willing to perform the essential terms of the
contract. For this, it is not necessary that the plaintiff shall deposit the tender price
or consideration, unless directed by the court. Moreover, the plaintiff must show
readiness and willingness to perform as per true construction or interpretation oft the
agreement.
What is the effect of failure to aver and prove readiness and willingness? Though
this is not falling within the scope of this book, it is necessary to keep in mind the
consequences because failure to aver and prove as aforesaid is fatal to the suit. No
relief can be granted if plaintiff fails to aver and prove. No relief can be granted if
plaintiff fails to aver and prove his readiness and willingness to perform essential
terms of agreement as per its proper construction. This does not, however, mean
that failure to reproduce exact words of the statute would prove fatal. All that is
required is that the facts and averments pleaded in the plaint disclose substantial
compliance with the aforesaid legal requirements." It is, however, advisable to
reproduce exact phraseology of the statute in order to avoid any technical objection
being raised against a person.
The first part of para 5 has reference to the pecuniary jurisdiction of the çourt; the
second part to the Court Fees Act 1870. Another thing which is not given in the
form above is, that only material facts are stated in the plaint as required by O. VI,
R. 2. Further, the forms of plaints are given in Appendix A to Sch I of the Code,
namely, Form Nos 47 and 48, as required by O. VI, R. 3."
48. Rajya Tusibai Patel v. Berar Enterprise d Ors.,(1987) 2 GLR 1082: AIR 1988 Guj 42.
49. Read Code of Civil Procedure, 1908, O. I1, R. 2(3); O. VI, Rr. 1-3, 9, 14, 15; and O. VI1, Rr. 1, 2, 3,
5,7,9,11, 14-18.2.
CHAPTER 4
PLACE OF SUING
4.1 PLACE OF SUING

Before instituting a suit on behalf of a client, the first thing to be determined is the
court in which the suirt should be brought. To do this, first of all, the place of suing
must be determined. The expression 'place of suing retfers to the venue of trial in
India and has nothing to do with the competency of the court. The questions of
pecuniary and subject-matter jurisdiction come subsequently, i.e., only after the
question of territorial jurisdiction is answered, but there may be as many as three
courts of different grades in that place, namely the district court, the subordinate
judges court, and the munsifs court. The next thing, therefore, to be determined is,
in which particular court in that place the suit should be instituted, having regard to
the value of the suit, and the subject-matter thereof.
Sections 15 to 20 regulate the venue where a suit can be filed and apply only to
those places where the Code is in force. The important provisions as to place of suing
are contained in Ss. 16, 17 and 20 of the Code, and are imperative for the suitor.
These sections do not apply either to chartered high courts (S. 120) or to presidency
small cause courts (S. 8). The former courts being in this respect governed by the
provisions of cl 12 of the Charter, and the latter courts by those of Ss. 18 and 19 of
Presidency Small Cause Courts Act, 1882. For the purpose then, of determining the
place of suing, we have to deal with threeclasses of courts, namely:
) higchourts;
(i) presidency small cause courts;
ii) courts to which the provisions of Ss. 16, 17 and 20 of the Code apply, eg,
district courts, subordinate judges courts, munsiff's courts, provincial
small cause courts.
yfrerjo19 s.dsvomrat To) etiuë
1. Oriental Bank of Commerce v. Santosh Kr. Agarwal, 2010 Cal WN 810 (819) (DB): 2008 AIHC
(NOC) 610(Cal-DB).
2. As to City Civil Courts, see APpendix.
Now, as regards suits, there is large variety of them. To get a rough idea of the
different kinds of suits, it is advisable to read the list of suits given in S. 19 of the
Presidency Small Cause Courts Act, 1882 and Sch. II of the Provincial Small Cause
Courts Act. There are suits for land or other immovable property. There are suits to
recover debts, and suits on contracts. There are suits for torts, and the tort or wrong
complained of may be:
(a) wrong to the person, eg., assault, battery, false imprisonment; or

(b) wrong done to one's reputation, eg, defamation; or
()wrong done to movable property, e.g.,Conversion; or
(d) wrong done to immovable property, «g., trespass and nuisance in different
forms (of which, the disturbance of an casement of light and air is a
familiar instance).
There are suits arising out of ife, marine and fire insurance policies. There are suits to
enforce trusts, suits for the cancellation or rectification of instruments, suits for legacies,
suits to contest awarcds, suits to set aside decrees and suits on foreign judgments
4.2 SECTIONS 16, 17, 19 AND 20 OF THE CODE
For the purpose of the present inquiry, suits may be divided into threeclasses, namely:
6) suits for immovable propertry (Ss. 16-17);

(i) suits for compensation for wrong done to the person or to movable
property (S. 19);
ii) suits of all other kinds (S. 20).
Under suits for immovable property there are five kinds of suits referred to in cl. I(a)
to (e) of S. 16 of the Code, namely, suits:
(a) for the recovery of immovable property;
(6) for the partition of immovable property;
(c) for foreclosure, sale or redemption in the case of a mortgage of, or charge
upon, immovable property;
(d) for the determination of any other right to or interest in, immovable
property, eeg, a suit by a purchaser for specific performance of a contract
for the sale of a house to him;
() for compensation for wrong to immovable properry, eg., trespass and
nuisance.
The property within the meaning of S. 16 of the Code refers only to property
situated in India.
4.2.1 Suits for Immovable Property

It can only be instituted in the court within the local limits of whose
jurisdiction the property or any portion thereof is situate in consonance with Ss. 16-
Chapter 4 Place ofSuing
39
17. Where agreement for development of property was recorded in Delhi and
dispute was related to the determination of rights and interest of parties over
immovable property situated at Chandigarh. Fact that defendant does not reside or
have any office in Delhi will not clothe Courts at Delhi with territorial jurisdiction.
Suit is governed by Section 16(d). It may be noted that neither a presidency, nora
provincial small cause court can try suits for immovable property.
Where the suit is for compensation for wrong or any other relief in respect of
immovable property situated within jurisdiction of different courts, the suit can be
brought in any one court within whose jurisdiction, any portion of the property is
situated. Further a suit to obtain relief or compensation in respect of wrong to im-
movable property, held by a defendant or on his behalf, where relief can be obtained
entirely by his personal obedience, can be instituted apart from the court within
whose local limits the property is situated, in a court within the limits of whose
jurisdiction, the defendant actually and voluntarily resides, or carries on business, or
personally works for gain. Its object is to benefit suitors and to avoid multiplicitry to
legal proceedings. It is applicable to suits for partition, it there are several immovable
properties situated at different places, a suit for partition of such properties can be
brought at any one of the places in respect ofall the properties.
Questions arise as to whether it is compulsory for the plaintiff to bring a suit in

respect of all the properties at one place? Is it possible to bring separate suits? While
cases are conflicting, the words used in S. 17 suggest that they are permissive, and do
not prohibit a person from bringing separate suits at different places.
Section 17 has no application if cause of action in respect of properties situated

outside the jurisdiction of the court in which suit is brought is different from the
cause of action in respect of properties situated within its jurisdiction. The
applicability of S. 17 depends upon existence of a single or common cause of action
in respect of all such properties. In Nasir Ali v. Mohamad Ali," the plaintif filed a
suit in Oudh court to recover immovable properties some of which were outside the
jurisdiction of the court. He claimed all the properties under a Will. He also prayed
for appointing/ declaring himself to be mutawali of a wakf of some other property.
Regarding the last prayer, Privy Council stated that cause of action in respect of
wakf propery was entirely different, and could not have been clubbed merely on the
ground that the other properties claimed under the Will were situated in the same
district. When there is a single cause of action in respect of several properties
situated at different places, a suit can be brought at one of such places provided the
entire claim falls within the pecuniary jurisdiction of the court. The principle is that
it is only in those cases where cause of action is common in respect of all the
properties or the basis of claim is same then the suit can be brought at one of such
places included within its scope and reliefs in respect of properties situated outside
3. SplendorLandbase Lid. v. Mirage Infra. Ld., 2010 AIHC (NOC) 1030 (Del-DB): 169 (2010) DLT
126 FA.O. (OS) No. 150 of 2010, Dt. 9.4-2010: AIR 2010 (NOC) 933 (Del).
4. Sardar Nisam Ali v. Mohammad Ali, AIR 1932 PC 172, (1932) 59 IA 268.
40 Chapter 4
the jurisdiction of the court. However, it is necessary that all such properties must
be in India, for courts have no jurisdiction in respect of properties situated abroad."
The question arises that in the event of an uncertainty as regards the court within
whose jurisdiction the property is situated, what is the remedy?
In circumstances, where it is doubtful in which of rwo or more courts, a particular

property is situated, you are entitled to file suit in any one of such courts alleging
such uncertainty. If the court is satisfied about uncertainty, it will record a statement
to that effect and proceed to dispose of the suit. Its decree will be binding. However,
the court must enjoy pecuniary as well as subject matter jurisdiction in respect of the
suit. Any objection regarding jurisdiction raised in appellate or revisional court shall
not succeed unless there is a failure in justice. Even failure to record a statement is
not fatal to the decree. However, if there is no reasonable ground to believe that
there was any uncertainty and if there is consequent failure of justice, such a decree
becomes vulnerable, and liable to be set aside.
4.2.2 Suits for Compensation for Wrong Done to the Person or to

Movable Property
It may be instituted at the option of the plaintiff in the court of the place where the
wrong was done or the court of the place, where the defendant resides or carries on
business which may be done through an agent or personally work for gain in
accordance with S. 19. Thus if A, residing in Delhi, publishes in Poona statements
defamatory to B, B may sue A, either in Delhi or in Poona.
This section is limited to actions in torts committed in India and to the defendant
residing or carrying on business or personaly working for gain, in India. It excludes
suits in respect of torts committed outside India. In such cases, if the defendant is
residing in India, suit can be brought under S. 20, and not under this section. In
order to make this section operative, commission of wrong as well as position of the
defendant about his residence or place of business or work, both must be in India.
What is a wrong? It is nowhere defined in the Code. The word 'wrong' signifies
an action, violative ofa legally recognised right. Salmond defines a wrong as simply
a wrong act-an act contrary to the rule of right and justice. However, it must be a
legally recognised rule before any action can be maintained in a court of justice. The
use of the word in the section is confined to a tort or actionable wrong to person or
movable property. In cases of such wrongs, this section is attracted, and the plaintiff
has an option to choose the forum for filing a suit.
4.3 PLACE WHERE WRONG IS cOMMITTED

Ordinarily, there should be no difficulty in ascertaining the place where wrong is
committed. However, in some cases, wrong may consist of a series of acts and it is
5. Nilkanth Balwant Nath v. Vidya Narsingh Bharathi Swami, AIR 1930 PC 188.
6. Janki Devi v. Mannila, AIR 1975 All 91: 1975 AWC 87.
Chapter 4 Placeof Suing
sometimes not easy to specify the place where it was committed. In such a case, a suit
41
can be brought at any place where any of the acts have been committed. In other cases,
it may also happen that a wrong may be committed at one place, but its consequences
or effects are suffered at another place and in such cases, it has been held that the place
at which consequences or effects are suffered will also get jurisdiction."
Where actionable wrong occurs at place A and its resultant effects are suffered at
place B, the court at place B will also have jurisdiction. Damage resulting at a place,
different from the place where wrong is committed, in consequences of such wrong
will also furnish a cause of action.
It is necessary that the suit must be for compensation and if other reliefs are
sought, it would fall outside the scope of the present section.
All other suits may be instituted at the plaintiff's option, in any one of the
following courts, namely:
) the court of theplace,where thecause ofactionariseseither wholly or in part;
() the court of the place, where the defendant resides or carries on business,
or personally works for gain;
ii) where there are two or more defendants, the court of the place where any
one of them resides or carries on business or personally works for gain,
provided that in such case, either the leave of the court is given, or the
defendants who do not reside, or carry on business, or personally work for
gain, in that place, acquiesce in such institution (S. 20). Whether there
was acquiescence on the part of the defendant is a question of fact."
The word 'actually' used in Ss. 16, 19 and 20 of the Code, means really and not
constructively, and 'voluntarily means his own volition. To constitute residence, the
following two things must be present:
G) the factum of residence; and
i) the animus-anelementofintention.
Confinement of a person in jail is not an actual and voluntary residence although he
is actually and physically present there.
The word 'business' in the expression 'carries on business in Ss. 16, 19 and 20 of
the Code, means some real and systematic or organised course of activity or conduct
with a set purpose."
The expression carries on business does not necessarily require the actual
presence of a person to carry on the business, and it may be carried on through
others, provided the person retains the control of thebusiness.
7. State v. Savodaya Industries, AIR 1975 Bom 197.

8. (1984) 1 GLR 706.
9. ar EasternSteamshipCompany v. Kokia Trading Co. Ltd., AlR 1978 AP 433.
10. Satya v. Teja Singh, AIR 1975 SC 105: (1975) 1 SCC 120.
11. Narain Swadeshi Weaving Mills v. Commr of Exces Profit Tax, AIR 1955 SC 176: (1955) 1 SCR 952.
12. M Venkatswamy v. Marudapursbram, (1997) 2 Mad LJ 245.
The expression personally works for gain' means a place where a person is
gainfully employed and was inserted to give jurisdiction to the courts, when a person
lives outside the local limits of its jurisdiction."
And out of the three expressions (a) actually and voluntarily resides; (6) carries on
business; and (c) personally works for gain, used in Ss. 16, 19 and 20 of the Code
dealing with the territorial jurisdiction of the civil courts, the expression carries on
business is the widest of all and applies to natural as well as juristic persons, carrying
on business with or without profis." The relevant date for determining territorial
jurisdiction is the date of institution of suit.
All these expressions have been dealt in detail in this chapter.
Ilustrations
(a) A resides at Delhi, and B at Agra. B borrows Rs 2,000 from A at Benares, and
passes a promissory note to A payable at Benares. B fails to repay the loan. A
may sue B at Benares where the cause of action arose, or at Agra where B
resides. A cannot sue B at Delhi where A resides.
(b) If in illustration (a), the note was made payable at Amritsar, a part of the
cause of action would arise at Benares, where the note was passed (ie., where
the contract was made), and a part of Amritsar, where it was made payable
(i.e., where the contract was to be performed), and A could then sue B, at his
option also at Amritsar.
(c) B and C pass a joint promissory note to A at Benares and made payable at
Benares. B resides at Agra and C at Simla. A may sue B and C at Benares,
where the cause of action arose. He may also sue them at Agra where B resides,
or at Simla where C resides, but in either of these cases, if the non-resident
defendant objects, the suit cannor proceed without the leave of the court.
Here are similar reference to some other causes of action.
In case ofa tort, where S. 19 is not attracted, the place where tort is committed or its
effects suffered will be a place where a suit can be instituted. In a suit of malicious
prosecution, the place where summons of criminal case is served is a place where a
part of cause of action arises and the court at such place shall have jurisdiction in
respect of such suit."In a suit to administer the estate, or tor the grant of probate or
letters of administration and the undertaking to administer will furnish a part of the
cause of action. In a suit to set aside a decree obtained by fraud, the court, which
passed such decree will have jurisdiction to try such suit. If such decree is sought to
be executed, and some action is taken in pursuance of execution, such as attachment
of property etc, the court at which execution application is made or the court where
such action is taken will also have jurisdiction to entertain a suit to set aside such
fraudulent decree." A suit for infringement of trademark or copyright can be
14. Bakhtawar Singh Balkrishan v. Union of India, AIR 1988 SC 1003; Union of India v. Ladu Lal Jain,
AIR 1963 SC 1621..
15. Mohana Kumaran Nair v. Vijaya Kumaran Nair, AlR 2008 SC 213: 2007 (12) Scale 130.
16. RP. Goala (Dr.) v. Amarpal Singh, AIR 1972 Raj 142.
17. Asghar Ali & Co v. VappalaSatyanarayana, AIR 1957 Cal 317.
48
brought at a place where such infringement takes place. " Where the respondent was
working at Dehradun and retired from service at Dehradun, no part of cause of
action arose in the State of Uttar Pradesh. An order issued by Allahabad High Court
would not be sustainable."
The parties to a contract may stipulate that the suit shall be brought at a particular
place only. Suppose A enters into a contract with B to sell goods at Bombay, and B
agrees to make payment to A at Ahmedabad and a clause is inserted in the contract
that a suit, in respect of the contract shall be instituted only at Bombay, what is the
effect of such agreement? Is it valid? In commercial transactions also, one can come
across clauses such as subject to Bombay jurisdiction only, etc. How far do such
agreements bind the courts? Several interesting questions having far-reaching
implications arose out of such choice of forum made by parties and law, in this
respect can now safely be taken to be well-settled.
Consent of parties cannot confer jurisdiction upon courts which they otherwise do
not posses. Agreement between the parties conferring jurisdiction on court of some
place which would otherwise not have jurisdiction, would be void being opposed to
public policy." However, the parties to an international trade contract may agree to
submit and to have their disputes resolved by a foreign court termed as a 'neutral
court or court of choice creatingexclusive ornon-exclusive jurisdiction in it." At
the same time, the parties are not entitled to take away, by their consent, the
jurisdiction vested in the courts, but if there are more than one courts having
jurisdiction, it is possible for the parties to stipulate that the suit shall be brought in
one of such courts only. In other words, the parties can, by their agreement, restrict
themselves to institute a suit at a particular place only out of several places available
under law for instituting legal proceedings. Such agreements are upheld as valid
being not contrary to public policy nor contravene S. 28 or S. 23 of the Indian
Contract Act, 1872** nor against the statute."
In Hakam Singh v. Gammon (lndia) Lid," it has been observed as follows:
It is not open to the parties to an agreement to conter by their agreement

jurisdiction on a court which it does not possess under the Code. But where
Cwo courts or more have under the Code of Civil Procedure jurisdiction to try
a suit or proceedings, an agreement between the parties that the disputes
berween the parties shall be tried in one of such courts is not contrary to public
policy. Such an agreement does not contravene S. 28 of the Contract Act.
Now if such kind of agreement is valid, what is its effect? Does it mean that the
court selected by the parties alone will have jurisdiction to the exclusion of other
18. DCS Bureau v. United Concern, AIR 1967 Mad 381.

19. StareBank of Patiala v. Vinesh Kr. Bhasin, (2010) 4 SCC 368 (375): AIR 2010 SC 1542.
20. HarshadChinman Lal Modi v. DLF Universal Ltd., AIR 2005 SC 4446: (2005) 7 SCC 791.
21. Modi Entertainment Network u. WSG CricketPut. Ltd., AIR 2003 SC 1177.
22. Man Ronald Drukimachiner AG v. Multicolour Ofset Ld, AIR 2004 SC 3345 :(2004) 7 SCC 447.
25. Hanil EraTextiles v. PuromaticFilters, AIR 2004 SC 2432.
24. Hakam Singh v. Gammon (lndia) Ltd, AIR 1971 SC 740.
courts? Does it mean that parties can exclude, by their agreement, jurisdiction of
other courts granted under the law? The answer is in the negative.
By virtue of such agreements, the courts excluded thereby, do not lose

jurisdiction which they otherwise possess. They retain jurisdiction norwithstanding,
the agreement of the parties. It is always held that excluded courts do not lose
jurisdiction and such freedom cannot be conceded to the parties to take away, by
consent, jurisdiction granted under the law. The courts will lean in favour of
upholding such agreements, and will insist that the parties adhere to the chosen
forum and will not allow them to ignore the stipulation, but they are not bound by
it. They can try suits or proceedings notwithstanding the agreement it they are
satisfied that the circumstances justify departure from agreement or that it would be
oppressive or unjust to insist that the suit or proceedings should be instituted at the
selected place only. The courts have the discretion and power to relieve the parties
from their self-imposed restriction, if rigid insistence on such selection is likely to
lead to injustice or unreasonable harassıment or inconvenience in view of the
surrounding circumstances, the balance of convenience, the nature of the claim and
of the defence, the history of the caseand the stakes involved." In Rai d SonsPut.
Ltd v. Trikamji Kanaji Gajar é Sons it has been observed as follows:
The prima facie leaning of the court is that the contract should be enforced
and the parties should be kept to their bargain. Subject to the prima facie
leaning, the discretion of the court is guided by the consideration of justice.
The balance of convenience, the nature of the claim and of the defence, the
history of the case, the proper law which governs the contract... are all
material and relevant considerations. If on a consideration of all the circum-
stances of the case, the court comes to the conclusion that it will be unjust or
unfair to stay the suit, it may refuse to grant the stay asked for.
The courts have tended to construe such clauses or stipulations rather strictly. There
must be very clear expression of intention to restrict the parties to a particular
forum. Such clauses do not find favour with courts and they are viewed with
suspicion. It is now accepted that the doctrine of freedom of contract is quite
illusory and in many cases, the parties do not have equal bargaining strength. In
such cases, the stronger party succeeds in inserting clauses favourable to itself on
account of its vastly superior bargaining power. In RSD Finance Co. Pvt. v. Shree
Vallabh Glass Works Lid" such tendency is clearly evident. In that case, the fixed
deposit receipts issued by the defendant contained the endorsement "Subject t
Anand Jurisdiction. It was held that such endorsement was insufticient to amount
to an ouster clause. It has been observed as follows:
The endorsement 'Subject to Anand Jurisdiction' does not contain the ouster
clause using the words like 'alone', 'only', 'exclude' and the like. Thus, the
25. Pattnaik Industries (Put) Ltd. v. Kalinga Iron Works, AIR 1984 Ori 182.
26. Rai SonsPvt. Lid v. Trikamji Kanaji Gajjar *Sons,16 GLR 31, AIR 1975 Guj 72.
27. RSD Finance Co. Pot. v. Shree Vallabh Glass Works Lrd, (1993) 2 SCC 130.
45
maxim 'epressio unius est exclusio alterius' cannot be applied under the facts
and circumstances of the case and it cannot be held that merely because the
deposit receipt contained the endorsement 'subject to Anand Jurisdiction' it
excluded the jurisdiction of all other courts who were otherwise competent to
entertain the suit.
The Supreme Court observing that such agreements must be properly

construed keeping in view the intention of the parties and the expressions used in the
agreement, has taken similar view in ABC Laminart Pvt Ltd v. APAgencies,Salem.
An agreement conterring an exclusive jurisdiction on one court to the exclusion of

another court should be clear, unambiguous, explicit and specific. "
An agreement as to the choice of forum or the exclusion of jurisdiction of a court

is binding on parties thereto, and does not affect a third party who is a stranger to
the contract.
The object of Section 20 is to secure justice to every man's hearthstone and that
defendant should not be put to any trouble and expense of travelling long distances
in order to defend himself. It deals with personal actions and various alternative
places are made available to the plaintiff to file a suit. Options are given to select the
place where cause of action has arisen, either wholly or in part or the place where the
defendant actually and voluntarily resides or personaly works for gain or carries on
business. We shall now consider certain aspects regarding residence and place of
business and work for gain.
4.4 RESIDENCE
This word is not defined in the Code. It must be given its plain, natural and
ordinary meaning. According to dictionary meaning, the term 'to reside' means to
dwell for a long time or to live at a particular place or in a particular house. 'Resides
refers only to natural persons, and not legal entities or the government." Whether a
person resides at a particular place is a question of fact, and it must depend upon
particular circumstances. There can be no hard and fast rule or criterion to
determine the question about residence nor any straight jacket formula to help.
The twin requirements to constitute residenceare () factum of residence; and (i)

the aminus, i.e., the element of intention." The person must have an established
home. However, the term 'residence at least signifies a permanent dwelling place
where a man lives with his family, if any. It must be actual residence, and not merely
technical or constructive residence." It must be voluntary residence, and not a
28. ABC Laminart Pvt Ltd v. APAgencies,Salem, AIR 1989 SC 1239:(1989) 2 SCC 163.
29. New Moga Transport Co v. United India lnsurance Co. Ltd., AIR 2004 SC 2154.
30. East India TransportAgencyv. National InsuranceCo. Ltd., AIR 1991 AP 53 (FB).
31. Laxman Prasad v., Prodigy Electronics Ltd., AIR 2008 SC 685 : (2008) 1 SCC 618.
32. See Bakhtawar Singh v. Union of India, AIR 1988 SC 1003: (1988) 2 SCC 293.
33. Satya v. TejaSingh, AIR 1975 SC 105.
34. MSM Buhari v. SM Buhari, AIR 1971 Mad 363.
compulsory residence. A person confined in jail actually resides there, but it is a

compulsory residence, and it cannot be said that he voluntarily resides there.
Similarly, where a person has no established home and is compelled to live in hotels,
boarding house or the house of others, his actual and physical habitation is the place
where he currently resides." The relevant date of residence is when the suit is insti
tuted. In order to satisfy the statutory requirements, both the elements regarding
residence ought to be present before a suit can be brought. The residence or
dwelling must be of a more or less permanent character. The residence must be
actual as well as voluntary. If residence is actual but involuntary, as in the case of a
person in prison, statutory requirement is not satisfied. It is possible that a person
may have more than one places of residence. In such cases, he is said to reside at all
such places. His temporary absence from one place will not make any difference if
he has animus revertendie, i.e., intention to revert. At the same time, if he resides at
a particular place temporarily or casually, it cannot be said that it is sufficient for the
purpose of filing a suit against him at such place. It will depend upon the facts and
circumstances of each case, whether his stay at a particular place can be claimed to
be sufficient for the purpose of his residence.
4.5 CARRIES ON BUsINESS

Business means some real, substantial and systematic or organised course of activity
or conduct with a set purpose
The place where the defendant carries on business is a place where suit can be
brought under S. 20. The expression carries on business used in this section is the
widest of all and applies to natural as well as juristic persons. It is not required that the
defendant must personally carry on business. The word personally appearing before
work for gain is advisedly nor used against the words 'carries on business'. The
omission is significant and deliberate. Therefore, it is not necessary that the defendant
must personally carry on business at a partricular place. It is not necessary that there
should be actual presence or personal effort of the defendant in such business. He
must be sharing gains or losses, as the case may be. Even if he carries on such business
through specially appointed agent, it is sufficient to bring a suit against him. The agent
must be a special agent, who attends exclusively to the business of the defendant and
not a general agent, who also does business for any one that pays him.
Suppose A is carrying on business at Ahmedabad and habitually sends its products

for sale at Bombay to another person who acts as a commission agent. If that person
has an independent business at Bombay, a suit can be filed against A at Bombay,
only if A is carrying on business at Bombay. A suit can also be filed against A at
Bombay if that person carries on business in As name and if he remains exclusively
attached toA.
35. Narayanan v. Kochupennu, AIR 1954 Tr & Coch 10, p. 141.

36. Mohan Singh v. Laiya Ram, AIR 1956 Punj 188.
37. Muthia Chettiar v. Shanmugham, AIR 1969 SC 552: (1969) 1 SCR 44.
38. (1881)ILR 3 All 91 (PC).
39. Mazagaon Dock Ltd. u. CIT, AIR 1958 SC 861: (1959) 1 SCR 848.
Chapter 4 Place of Suing
lt is equally important that essential part of the business is carried on at a

particular place. It is not sufficient if only incidental or consequential functions are
performed at that place.
Suppose A is carrying on retail business of selling products art Ahmedabad and A is

acquiring such products through its agent at Bombay who imports or purchases
them at Bombay, it cannot be said that A is carrying on business at Bombay.
Similarly, if A is carrying on manufacturing and selling activities at Ahmedabad, and
if A has appointed an agent merely for the purpose of procuring orders and
forwarding the same to himself, it cannot be said that A is carrying on business at
Bombay. However, if As agent is authorised to accept orders and finalise them, it
may be a different story altogether.
After ascertaining the nature of business, it is necessary to examine whether

essential activities of such business are carried out in order to decide whether it can
be said that a person is doing business at that place. IfA is a retailer at X place, and if
for this business, makes a wholesale acquisition at Yplace, it cannot be said that A is
carrying on business at Yplace.
Where an offer is accepted at Delhi it would mean that the contract has been
entered into at Delhi and jurisdiction would be of Delhi, irrespective of the fact that
formal documentation by way of agreement was made at Jhansi."
What will be the position in respect of other entities and individuals? One finds
an explanation attached to S. 20, which speaks of corporations. They include
companies incorporated under Companies Act, 1956." If a suit is instituted on the
ground that cause of action has arisen at a particular place, in that case, the explana-
tion is not attracted, and a suit is maintainable even if a corporation is not carrying
on business at such place." However, a suit can also be brought against the corpo-
rations where it carries on business. How can it be determined where a corporation
carries on business? The answer is provided by this explanation.
If it has only one place of business, there can be no difficulty. If it carries on

business at several places for this purpose, it carries on business at its principal office
in India. However, if a cause of action has arisen at a place where such corporation
has its subordinate office, it is deemed to carry on business at such place where
subordinate office is situated. In other words, then a cause of action has arisen at a
work place where subordinate office is situated, the suit cannot be brought at the
place of its principal office. In such cases, by statutory fiction, it is presumed that
corporation carries on business at the place of its subordinate office where the cause
of action has arisen. Conversely, cause of action or a part of cause of action must
have arisen at the place where the subordinate office of the corporation is situated,
for the explanation to apply. The use of the word or in the explanation must be read
40. Magnum Buildersd-Developers d ChawlaConstruction(V) v. Ircon International Ld, 2008 (4) Arb LR
235 (Al): 2008 (3) AWC 2980: AIR 2005 (NOC) 59 (All) : 2008 (5) ALJ 362.
41. Hakan Singh v. Gammon (lndia) Ltd., AIR 1971 SC 740.
42. CW Corpn v. Central Bank of India, AIR 1973 AP 387.
as disjunctive and not as conjunctive. Therefore, in such cases, it is quite immaterial

where the principal office is situated.
Whether a person carries on business at a particular place is a question of fact.
The expression 'carries on business applies to Government of India as well as

corporations. However, it does not refer to functions carried on by the Union of
India in discharge of its executive powers conferred by the Constitution."
Transaction occurred at a particular place is specifically affirmed or alleged in the

plaint showing right to sue. Suit can be instituted in the Court within the local
limits of whose jurisdiction that transaction occurred. Presence of a subordinate
office of a company in the place where cause of action wholly or in part arises is not
necessary to attract clause (c) of Section 20 in the case of Corporation or
Companies. "Carrying on business" occurring in clauses (a) and (6) has no
significance on relevancy in interpreting clause (c) of Section 20. Explanation to a
main provision of an Act cannot be allowed to override it. Held:
() Territorial jurisdiction may fall under more than one clause and the suit
can be filed in more than one Court.
(i) Plaintiff has the right and liberty to choose any one of the courts
simultaneously having jurisdiction.
(ii) "Cause of action" is the basis from which issues can be formulated and
issue arises when material proposition of fact or law is affirmed by one
party and denied by the other.
4.6 PERSONALLY WORKS FOR GAIN

Where a person resides outside the jurisdiction of court, but personally works for
gain within its jurisdiction, a suit will lie against him in that court. Suppose A is
residing at Gandhinagar, but is practicing as an advocate at Ahmedabad, a suit can
be brought against A at Ahmedabad. The word 'works implies efforts on the part of
the defendant and if such etfort is absent, it cannot be said that he is personally
working for gain. It implies mental or physical effort. Suppose if a priest is receiving
gifts or offerings at a particular place, it cannot be said that he is working there. This
part of the section does not apply to non-personal entities such as government, com-
panies or corporation.
Where there are more than one defendants and the court enjoys jurisdiction only
over one or some of the defendants, but not over all the defendants, the leave of the
court must be sought before a suit can be filed before it. The leave must be express.
The leave may be granted even wichout hearing the opposite party, and even after
institution of the suit. The leave can even be granted at the stage of appeal. In
43. M Venkata Swamyv. Marudapurshpam, (1992) 2 Mad LJ 245.

44. Bakhtawar SinghBalkishan v. Union of India, AIR 1988 SC 1003.
45. Joy P. Chungath v. Lawkin Lid, 2012 (5) R.C.R.(Civil) 331.
46. Neela Productions,Sreekumar Theatre, Trivandrum v. S Kumaraswamy, AIR 1966 Ker 239.
47. Manoramabai v. brahim, AIR 1969 Bom 366: (1969) 71 Bom LR 317.
Chapter 4 Placeof Suing 49
granting or refusing leave, the court shall consider the convenience of the parties, the
availabiliry of the evidence and the larger interest of justice." The collector of
stamps, Satna passed the order directing the appellants to deposit deficit stamp duty
as well as registration charges. In appeal, order of collector was affirmed by
Commissioner Rewa Division, Rewa. An appeal filed challenging both the orders
was dismissed by Board of Revenue at Gwalior on merits. The order of Collector as
well as that of the Commissioner was merged in the order of the Board of Revenue.
The part of cause of action had arisen to the appellants at Gwalior also. The Bench
of High Court at Gwalior shall have jurisdiction to decide the writ petition."
In cases, where one or more defendants in a suit are outside the jurisdiction of the
court, such a suit shall fall within the jurisdiction of the court only if such
defendant(s) acquiesces to its jurisdiction and an objection against the jurisdiction
can be raised. However, if no objection is raised, such a non-objecting defendant(s)
will be estopped from challenging the jurisdiction of the court subsequently.
Whether there is an acquiescence on the part of the defendant is a question of fact.
4.7 CLAUSE 12 OF THE CHARTER

It has already been pointed out that the High Court of Allahabad has no original
civil jurisdiction, in other words, no suits can be instituted in that court. We
therefore have to confine our attention to the other high courts, namely, the High
Courts of Calcutta, Madras and Bombay. The extent of their ordinary original civil
jurisdiction is defined in cl 12 of their respective charters." Suits, so far as that
clause is concerned, may be divided into two classes, namely: (i) suits for land; and
i) suits other than those for land. The effect of provisions of cl 12 is that barring
certain suits which it is quite unnecessary to mention, the said high courts can try:
4.7.1 Suits for Land

(a) if the land is situated wholly within the local limits of the ordinary original
civil jurisdiction of the said high courts; or
(b) where the land or property is situated in part only within the said limits, if
the leave of the court shall have been first obtained.
4.7.2 Suits Other Than Those for Land

(a) if the cause of action has arisen wholly within the said limits; or
(b) where the cause of action has arisen in part only within the said limits, if
the leave of the court shall have been first obtained; or
()if the defendant at the time of the commencement of the suit dwells, or
carries on business, or personally works for gain, within such limits.
48. Bank of India v. Mehta Bros., AIR 1984 Del 18: 1983 (5) DRJ 252.
49. Vishnu v. State of M.P., 2009 (3) MPLJ 39 (42) (DB): 2009 (4) MPHT 123.
S0. Manoramabai Moreshwar v. lbrahim Khan Bismilla Khan, AlR 1969 Bom 366.
S1. Certain other high courts have original civil jurisdiction by the later Acts.
As to the meaning of the expression 'suits for land' in cl 12 of the Charter, there is a
conflict ofdecision.
According to the Calcutta High Court," the expression 'suits for land' refers to
the five kinds of suits mentioned in cl (a) of S. 16 of the Code. According to the
Bombay High Court;" suits for the foreclosure, sale, or redemption in the case of
mortgage of immovable property, and suits for specific performance of a contract to
transfer immovable property, are not suits for land. The result is that you may
institute in the High Court of Bombay, a suit for the sale of mortgaged property,
though the property may be situate outside Bombay, provided that the mortgage
was executed in Bombay, or the defendant resides in Bombay. Such a suit from the
point of view of the Bombay High Court, is a suit in personam to recover a debt,
and it belongs to the second of the two classes of suits mentioned above. It is a
maxim of equity that equity acts in personam.
Following the maxim, the courts of equity in England entertain suits relating to
immovable property, though the property may be situated abroad, eg, in Germany,
provided that either the person of the defendant or his personal property is within the
jurisdiction of the court. The jurisdiction, however, is confined to three classes of suits
only, namely: (i) suits arising from breach contract; (i) suits arising from a breach of
trust; and (ii) suits arising from fraud respecting land situate abroad. The High Court
of Bombay purports to follow the said maxim. The maxim is reproduced with some
alteration in the proviso to S. 16 of the Code. According to the Madras view,"" a suit
for specific performance of a contract to sell land is not a suit for land.
In determining the place of suing in the case of suits other than those of land, the
two factors of importance are (i) the cause of action; and (i) the place of residence of
the defendant. The place of residence of the plaintiff is of no consequence.
4.8 POINTS OF DISTINCTION BETWEEN SECTIONS 16, 17 AND

20 OF THE CODE AND CLAUSE 12 OF THE LETTERS PATENT
The points of distinction are as follows:
) Leave to sue isnecessaryunder cl 12 of the Charter in the case of suits for

land, if only a portion of the land is situated within local limits of the
original jurisdiction of the high court, and in the case of other suits, where
the defendant does not reside within the said limits, if only a part of the
cause of action has arisen within the said limits. No such leave is necessary
either under S. 17 or S. 20 of the Code.
(n) In all cases in which leave to sue is necessary under cl 12 of the Charter, it
must be obtained before the suit is filed, otherwise, the suit will be
52. Sudamdih Coal Co. v. Empire Coal Co (1915) ILR 42 Cal 942, pp. 951-52.
53. Hatimbhai v. Framroz, AlR 1927 Bom 278 : (1927) 29 Bom LR 498.
54. Vellappau. Govinda Das, (1929) ILR Mad 809 (FB) : AIR 1929 Mad 721.
Chapter 4 PlaceofSuing
dismissed. Leave to sue under S. 20 may be granted by the court even after
the suit is filed.
(1) In a case where the suit is not one for land, where no part of the cause of
action has arisen within the local limits of the original jurisdiction of the
court, and there are two or more defendants, all of whom do not reside
within the said limits, if the suit is instituted in a high court, it has no
jurisdiction to entertain the suit; it has been held that every defendant
must be residing within the said limits to give jurisdiction to a high court;
but if the suit be instituted in a court to which the provisions of S. 20 of
the Code apply, the court has jurisdiction to try the suit, if either the leave
of the court is obtained or the non-resident defendant submits to the
jurisdiction of the court.
llustrations
(a) A resides in Bombay and B at Poona. A agrees in Bombay to sell and deliver
goods to B at Poona on payment of the price in Poona. The goods are delivered,
but the price is not paid. Can A sue B in the High Court of Bombay? Yes, but
only after obtaining leave to sue, tor a part only of the cause of action has arisen
in Bombay, namely, that the contract was made in Bombay.
(6)A resides in Bombay, and B and C reside in Poona. A, B, and C, being

together at Poona, passa joint promissory note to D payable in Poona.
cannot sue A, B, and Cin the High Court of Bombay, for the cause of action
arose wholly in Poona, and all the defendants do not reside in Bombay.
4.9 ASCERTAINING THE PARTICULAR COURT

Having ascertained the place of suing, one can have no difficulty in
ascertaining in which particular court in that place, the suit is to be brought. Let us
take an instance. A and B are co-owners of a house situated in Baroda. A resides in
Bombay and B in Surat. The value of the house is Rs. 75,000. A wants to sue B for a
portion. In which court will you advise him to institute the suit? First, determine the
place of suing. It is Baroda, for the suit is one for immovable propery, and the
property is situated in Baroda. Next determine in which of the four courts in
Baroda the suit is to be brought. It cannot be the provincial small causes court, for
its has no jurisdiction to entertain suits for partition of immovable property.
It cannot be the court of the civil judge of the junior division, for though it has
jurisdiction to entertain suits for partition of immovable property, the value of the
subject matter is beyond its pecuniary jurisdiction and the value of the property is
exceeding Rs 50,000. There remain cwo other courts, namely, the district court and
the court of the civil judge of the senior division. Both these courts have jurisdiction
to entertain the suit. Of these two, the court of the civil judge of the senior division
is the court of lower grade. The suit must, therefore, be brought in the court of the
civil judge of the senior division.
S5. Seech. 2, under the heading°Courts in other parts of India'.

56. See ch. 2, under the heading 'Courts of Small Causes'.
Question arises as to what is the result, if a suit is brought in a court i which,

having regard to what is stated above, it ought not have been brought? And this
leads to the consideration of rwo more principles.
4.10 OBJECTION AS TO PLACE OF SUING

The first of the two principles referred to above relate to the place of suing. Thus,
suppose that in the case above, A sued B in Surat instead of suing him in Baroda
where the land was situated, and that a decree was passed by the court at Surat for A.
Suppose, further that B appealed from the decree to the High Court of Gujarat on
the ground that the court at Surat had no jurisdiction to try the suit. It would seem
that high court should entertain the objection and allow the appeal, but the rule is
different, and though the objection is one as to jurisdiction, the high court will not
entertain it, unless:
(G) the objection to jurisdiction was taken by B in the court of first instance
(the court at Surat) and at the earliest possible opportunity or before the
issues were framed; and
i) there has been a failure of justice consequent upon the suit having been
tried by the court at Surat (S. 21). The result is that, if no objection to
jurisdiction was taken at all by B in the court at Surat, or if such objection
was taken at a later stage of proceedings betore the court, or even if such
objection was taken at the earliest possible opportunity, but there has been
no failure of justice consequent upon the suit having been tried by the
court at Surat, the appellate court would not allow the objection, and
would not interfere with the decree passed by the Surat court.
All the three conditions, namely, objection in the court of first instance; objection at
the earliest possible opportunity or before the settlement of issues; and a consequent
failure of justice, must co-exist." "S.21 CPC does not preclude objections as to the
place of suing being taken in the appellate or revisional court, if the trial court has
not decided the suit on merits.
Jurisdiction of courts is of three kinds, namely jurisdiction as to subject matter,
pecuniary jurisdiction, and territorial jurisdiction. The consequences of absence of
jurisdiction are not same, in respect of the aforesaid jurisdictions. They vary accord-
ing to the type or nature of jurisdiction. If the court has no jurisdiction as to subject
matter, its decree will be a nullity, but if it did not have pecuniary or territorial
jurisdiction, its decree is not a nullity. 'Objection to the maintainability of a
proceeding must be raised at the earliest but an objection that the authority did not
have the jurisdiction to entertain the proceedings over the subject-matter goes to the
roor of the proceeding. However, a defect with respect to the lack of inherent
jurisdiction is basic and fundamental and validity of such an order can be challenged
57. As to"failure or justice', see Bahrein Petroleum Co. v. Pappu, AIR 1966 SC 634: (1966) 1 SCR 461.
58. KoopilanUneenPathumma . KoopilanUneenKuntalan Kuty, AIR 1981 SC 1683: (1981) 3 SCC 589.
59. R.S.D. V. Finance Co. (P) Ltd. v. Shree Vallabh Glass Works Ltd.,(1993) 2 SCC 130.
Chapter 4 PlaceofSuing
at any stage, even in execution or in collateral proceedings. A suit was filed with
regard to execution of decree of specific performance. Objection that was decided by
a Court which had no territorial jurisdiction. Judgment cannot be reversed purely
on technical grounds unless there is a failure of justice. Objection with regard to
territorial jurisdiction is technical objection." It is liable to be set aside if aforestated
conditions are satisfied. This is the effect of provisions of S. 21 of the Code. The
provisions make it incumbent upon B to make up his mind at the earliest stage of
the suit as to whether, he should object to the jurisdiction of the court. If he does
not object at the earliest stage of suit, the appellate court will not entertain the
objection, but this does not mean that ifBr ises the objection as to jurisdiction in
the court at Surat at a later stage of the proceedings; the court at Surat should
decline to entertain the objection. The court at Surat, being the court of first
instance, is bound to entertain the objection, whatever may be the stage at which the
objection is raised; and if it finds that it has no jurisdiction, it should not try the suit
any further. In that case it should dismiss the suit, and return the plaint to A to
present it to the proper court (O. VII, R. 10). The effect of returning a plaint as
distinguished from rejecting it, is to save the plaintiff the court fees which he has
already paid.
Suppose now that no objection as to jurisdiction is raised by B in the court at

Surat, but if the court itself at a late stage of the proceedings discovers that it has no
jurisdiction to try the suit, it is the duty of that court to dismiss the suit, and return
the plaint, but what if after the court at Surat finds that it has no jurisdiction, both
A and B consent to the court at Surat proceeding with the suit and disposing it of on
its merits? Can the Surat court proceed with the suit in such a case? The answer is
no, for it is an established principle that parties cannot by consent confer
jurisdiction upon a court as jurisdiction is conferred upon courts by the legislature.
The leading case on the subject is Ledgard v. Bul. A similar rule has been enacted
with reference to pecuniary limits.
4.10.1 Factors Constituting a Failure of Justice

Failure of justice' refers to the merits of the case.
It depends upon facts of each case. For this purpose, the court will have to go into
merits of the case and form its opinion on the justice and give the decision. If any
party is prevented from adducing evidence, oral or documentary, due to the distance
berween place of suing and place where such evidence would readily and easily be
available, it may result in failure of justice, If it appears to the court that on account
of the suit being in the court not having territorial jurisdiction, either party did nor
have a fair trial, it would mean failure of justice. The court may not be unfair, but
by virtue of the distance or such other factor, if either party is handicapped in
putting its case properly and adequately, it may result in failure of justice. When a
60. Cantonment Boardvu. Church of North India, 2012 (12) SCC 573.
61. K.P.RangaRao v. KV. Venkatesham,2015 () RC.R. (Civil) 301.
62. Ledgard v. Bul, (1887) ILR 9 Al 191: (1884-85) 13 IA 134 (PC).
defendant has actively participated in the trial and had full opportunity of defence in
Chapter 4
all aspects, he cannot say that there was a failure of justice.
4.10.2 Waiver of Objection to Territorial or Pecuniary Jurisdiction

If the defendant does not raise an objection as to the territorial or pecuniary
jurisdiction, it is clear that judgment in such case would be valid. The general
principle of waiver has now found a statutory recognition in S. 21 which clearly
provides that failure to raise objection in the court of the first instance and at the
earliest opportunity, shall prevent the defendant from raising such an objection at a
subsequent stage, and the judgment would not be vitiated on the ground of absence
of territorial or pecuniary jurisdiction. S. 21 of the Code does not apply to High
Court in exercise of its original civil jurisdiction.
Incidentally, it may be pointed out that if the court does not possess jurisdiction as
to subject matter, its judgment would be a nullity and of no legal effect whatsoever.
In Hiralal Doshi v. Barot Ramanlal," Supreme Court has observed as under:
A decree is said to be a nullity if it is passed by a court having no inherent

jurisdiction. Merely because a court erroneously passes a decree or there is an
error while passing the decree, the decree cannot be called a nullity. The decree
to be called a nullity is to be understood in the sense that it is ultra vires the
powers of the court passing the decree and not merely an avoidable decree.
Thus, when objection is in respect of jurisdiction as to subject matter and not in

respect of pecuniary or territorial jurisdiction, it goes to the root of the matter, and
such objection cannot be waived. Consent and waiver cannot cure inherent lack of
jurisdiction. An order passed by a court having no jurisdiction is nullity. It is a
fundamental rule that consent cannot confer jurisdiction as to subject matter, but
the same rule will not apply to absence of territorial or pecuniary jurisdiction.
In Hiralal v. Kalinath, it has been observed as under:
It is well settled that the objection as to local jurisdiction of a court does not
stand on the same footing as an objection to the competence of a court to try a
case. Competence of a court to try a case goes to the very root of the
jurisdiction and where it is lacking, it is a case of inherent lack of jurisdiction.
On the other hand, an objection as to local jurisdiction of a court can be
waived and this principle has been given a statutory recognition.
In Kiran Singh v. Chaman Paswa," it was held as under:
63. OriemtalBank ofCommercev. S.K. Agarua, 2008 (3) CHN 202: 2008 AIHC (NOC) 610 (Cal): AIR 2008
Cal 148: A.P.D. No. 179of 2001, Dt. 15.5.2008 (DB).
64. Hiralal Doshi v. Barot Ramanlal, (1993) SCC 458: AIR 1993 SC 1449.
65. Harshad Chiman Lal Modi v. DLF Universal Lta., AlR 2O05 SC 4446.
66. Hiralal v. Kalinath, AIR 1962 SC 199:(1962) 2 SCR 747.
67. Kiran Singh v. Chaman Paswan, AIR 1954 SC 340: (1955) 1 SCR 117.
Chapter 4 Placeof Suing 55
The policy underlying Sections 21 and 99, CPC, and Section 11 of the Suits
Valuation Act is the same, namely, that when a case had been tried by the
court on the merits and judgment rendered, it should not be liable to be
reversed purely on technical grounds, unless it has resulted in failure of justice
and the policy of the legislature has been to treat objections as to jurisdiction
both territorial and pecuniary as technical and not open to consideration by an
appellate court, unless there had been a prejudice on merits.
"Objection U/s 21(3) CPC in Execution proceedings"

The object behine Section 21 (1) & (2) CPC is to curb the practice of raising
objections to the territorial and pecuniary jurisdiction of the Court of first instance,
at the appellate or revisional stages. Sub-section (3) has further expanded this
principle to the competence of Executing Court and no objection with reference to
the local limits of its jurisdiction can be allowed by any Appellate or Revisional court
unless such objection is taken in the Executing court at the earliest possible
opportunity, and unless there has been a consequent failure of justice. Sub-section
(3) has been added to give effect to the principle laid down by the Supreme Court in
Hira Lal Patni v. Kali Nath, wherein it was held that "Objection as to territorial
jurisdiction does not go to root of competence and a validity of decree cannot be
challenged on that ground in execution proceedings."
4.11 OBJECTIONS AS TO OVER-VALUATION AND UNDER-VALUATION

The second of the rwo principles referred to above relates to over-valuation and
under-valuation of suits. The general rule is, that it is the plaintiff's valuation in his
plaint which fixes the jurisdiction not only of the court of first instance, but of the
appellate court, and not the amount, which may be ultimately decreed by the court.
Although it is the plaint value which fixes the jurisdiction, it does not follow that the
plaintiff is at liberty to assign any value he likes to his suit and thus, be free to
choose his own court for bringing his suit. If the defendant disputes the valuation, it
is the duty of the court in which the suit is filed to inquire what the real value of the
suit is. The rules for valuing suits are laid down in the Court Fees Act." If the court
finds that the suit has been over-valued or undervalued by the plaintift, and that
there has been a consequent change of forum, it should return the plaint to the
plaintiff to present it to the proper court (0. VII, R. 10). If the suit has been under-
valued but not so as to change the forum, the court should grant time to the plaintiff
to correct the valuation and pay the extra court fees. If the valuation is corrected,
within the time fixed by the court, the court should proceed with the suit. Ifit is not
corrected within the fixed period, it is the dury of the court to reject the plaint.
Suppose now that a suit has been over-valued so that it is brought in a court of a
higher grade, or that is undervalued so that it is brought in a court of lower grade.
Suppose, further, that the decree of the court is against the defendant, and that the
68. Hira Lal Patni v. Kali Nath, AIR 1962 SC 199.

69. The Court Fees Act, 1870.
defendant appeals from the decree. Can the appellate court set aside the decree as a
mater of course? The answer is no, unless:
) the objection as to jurisdiction by reason of over-valuation or undervalua-

tion was taken by the defendant in the court of first instance and before
the settlement of issues; and
(i) the over-valuation or undervaluation is found by the appellate court to
have prejudicially affected the disposal of the suit on the merits.
This is the effect of the provision of S. 11, Suits Valuation Act, 1887. These pro
visions are similar to those contained in S. 21 of the Code. But once it is found that
valuation is proper, the court is entitled to pass a decree for an amount even higher
than its pecuniary limits. Such decree is legal and free from vice. However, if there is
any amendment proposed to be made in the plaint as a result of which, the
valuation will exceed the pecuniary limits, the court granting the amendment will
lose jurisdiction."
Illustrations
() A sues B to recover possession of a house, valuing his claim at

Rs 4500. The suit is filed in court X, which has no jurisdiction to try suits of
a value exceeding Rs 5,000. The market value of the house is Rs 7,000, but B
does not object to the jurisdiction of court X. If B appeals from the decree
and objects to the jurisdiction of court X, the appellate court should not
entertain the objection.
i) A sues B for accounts and values his claim below Rs 50,000. The suit is filed
in the court of civil judge (junior division), but the amount found due on
taking account exceeds Rs 50,000. In such case, the court has power to pass a
decree because it is the plaintiff's valuation in his plaint which fixed
jurisdiction, and not the amount which has been found and decreed by the
court.
i) A sues B to recover Rs 15,000. The suit is filed in the court of civil judge
junior division). By a subsequent amendment, the claim is enhanced to Rs
55,000. The court will lose jurisdiction to try the suit once amendment is
granted.
"Forum Shopping"
Forum Shopping is an unethical recourse resorted to by some unscrupulous
litigants for getting their case heard in a court of law in order to get favourable order
or judgment. The Courts have taken a very strong view against this growing
(mal)practice.
In Chetak Construction Ltd. v. Om Prakash," the Apex Court observed that:
70. See Code of Civil Procedure, 1908, ss. 7, 8, 16, 17, 18, 19, 20, 21, 120; O. VII, Rr. 10-11. Note in
particular, the amendmentsmade in 1976 in ss. 20, 21, and O. VIl, Rr. 10-11.
71. Chetak Construction Ltd. v. Om Prakash, 1998 (3) RCR (Civil) 644.
"Indeed, no lawyer or litigant can be permitted to browbeat the court or

57
malign the presiding officers with a view to get a favourable order. Judges shall
not be able to perform their duties frely and fairly if such activities of justice
would become a casualty and Rule of Law would receive a set-back. The
Judges are obliged to decide cases impartially and without any fear or favour.
Lawyers and litigants cannot, be allowed to "terrorize" or "intimidate" judges
with a view to "secure" orders which they want. This is basic and fundamental
and no civilized system of administration of justice can permit it. We certainly,
cannot approve of any attempt on the part of any litigant to go "forum
shopping A litigant cannot be permitted 'choice' of the forum' and every
attempt at "torum shopping" must be crushed with a heavy hand."
t.:
tir t..1 .
i:
..
CHAPTER 5
PARTIES AND CAUSE OF ACTION
5.1 PRELIMINARY
As discussed earlier,' the four ingredients of a suit are: (1) parties, (2) cause of action,
(3) subject-matter, and (4) reliefs claimed by the plaintiff. Of these four, the last two
do not require further comment, but the other two, namely, parties and cause of
action require a fuller statement. These rwo essentials are so intimately connected
with each other, that one cannot be dealt with without dealing with the other. In
fact, the very expression cause of action' conjures up the notion of parties, i.e., some
persons as plaintiffs having a cause of action against others as defendants.
5.2 TRANSACTIONS AS DISTINGUISHED FROM CAUSE OF ACTION

It is very important for the purpose of the present chapter to note the distinction
between an act or a transaction and a cause of action. A cause of action always
springs from an act or a transaction. An act or a transaction may give rise to one
cause of action or it may give rise to two or more causes of action. Where there are
several causes of action, a separate suit may be brought in respect of each distinct
cause of action, though they may arise out of the same transaction. In a suit, the
plaintiff is bound to claim the entire relief. A suit has to be so framed as to afford
ground for final decisions on the subjects in dispute and to prevent further litigation
concerning them. However, one cannot split a cause of action, and bring two or
more suits in respect of the same cause of action as laid down in O. II, R. 2 of the
Code, which centres around one and the samecause of action. The object of O. II,
R. 2 of the code is two fold. First is to ensure that no defendant is sued and vexed
twice in regard to the same cause of action. Second is to prevent a plaintitt from
1. Chapter 3, The Four Essentials of a Suit.

2. Kunjan Nair Sivaraman Nair v. Naraynan Nair, AIR 2004 SC 1761: (2004) 3 SCC 277.
60
splitting the claims and remedies based on the same cause of action. It does not bar a
second suit based on a different and distinct cause of action.
Order. I1, R. 2 insists upon inclusion of the whole claim which the plaintiff is
entitled to make in respect of a cause of action put in the suit. It directs securing
exhaustion of relief in respect of a cause of action and not to the inclusion in one
and same action of difterent causes of action, even though they may arise from same
transaction."
A's cab comes into collision with B's van. The collision causes (i) damage to As cab
and (iü) bodily injury to A. Here the same transaction, namely, collision, gives rise to
two distinct causes of action, one, in respect of the damage to A's cab and the other,
in respect of the injury to A's person. Here A may bring one suit against B in respect
of both causes of action though he is not bound to do so. He may, if he likes, bring
two separate suits against B, one for compensation for damage to his cab, and the
other, for compensation for injury to his person. However, he cannot bring more
than one suit in respect of either of these two causes of action. Thus, if he brings a
suit for damages for injury caused to his arms and legs, he cannot bring another suit
for damages for internal injury, though he may not have been aware, when he
brought the first suit, of such injury.
The leading case on the subject is Brunsden v. Humphrey. This sub-rule deals
with framing of suit and says that the plaintiff must include the whole of the claim
in respect of a particular cause of action and if he omits to sue or intentionally
relinquishes any portion of the claim, he shall not afterwards sue in respect of such
portion. The provision, like the principle of res judicata, is based on the salutory
and cardinal principle that all disputes must be settled once and for all and no
person ought to be vexed twice for one and the same cause, but he can omit or
relinquish the portion of the claim in order to bring suit within the jurisdiction of
a court. In the same way, if the plaintiff is entitled to pray for several reliefs, either
concurrent or alternative, and if he omits to sue for all such reliefs, he cannot
afterwards sue for such omitted reliefs, unless he has obtained leave of the court. It
is important to notice that court can grant leave to the plaintiff in respect of relief,
but not in respect of portion of the claim. This rule also applies to a defendant
who claims a set off or counter claim. When defendant pleads O. II, R. 2, he must
file the pleadings in the previous suit.° The plea can be established only on proof
of the identity of the cause of action as well as the identity of the parties in two
suits.
3. Alka Gupta v. Narender Kumar Gupta, (2010) 10 SCC 141 (147).

4. S. Nazeer Ahmed v. State Bank of Mysore, AIR 2007 SC 989 : 2007 (2) Scale 349: (2007) 11 SCC 75.
5. Brunsden v. Humphrey, (1884) 14 QBD 141.
6. NVSriniwasa Murthy v. Mariyamma, AIR 2005 SC 2897: (2005) 5 SCC 548.
7. State of Maharashtra v. National Construction Company, Bombay, AlR 1996 SC 2367; Inacio Martins
through LRs v. Narayan Hari Nayak, AIR 1993 SC 1756: (1993) 3 SCC 123.
8. BengalWaterproof Ltd v. BombayWaterproof Mjg. Co., AIR 1997 SC 1398 : (1997) 1 SCC 99.
9. Gurinderpal v. Jogmitter Singh, (2004) 11 SCC 219.
Chapter 5 Parties and Cause of Action
61
The plea of bar under O. I, R. 2 is a highly technical plea and must be taken
specifically. And if not taken, the court shall not entertain and decide the plea suo
motu.
For the plea of bar under O. II, R. 2 to be successful, the defendant has to
establish that: () the previous and the second suit arise out of the same cause of
action, (i) the cause of action on which subsequent claim is founded had arisen to
the claimant where the enforcement of the first claim has been sought and (ii) the
earlier suit had been decided on merits."
Raising of plea of bar of O. II, R. 2 in appeal for the first time is not permissible,"
and also cannot be permitted to be raised before the Supreme Court if not raised
before the high court. " There is material difference between R. 2(2) and R. 2(3) of
O. IIL.These rules will not apply ifcauses of action are distinct. "
In Shanker Sitaram v. Balkrishna Sitaram," the plaintiff filed a suit for partition
embracing the entire property, but abandoned certain claim for accounts. He
subsequendy filed a suit to enforce that claim for accounts on the same cause of
action. It was held that the suit was bad under O. II, R. 2. In the same way, if a
person omits any portion of the claim in order to bring the suit within the pecuniary
limits of any court, he cannot afterwards sue for such omitted portion. Suppose Rs.
3,50,000 has to be recovered from a person and only a suit for Rs. 3,00,000 is filed
in the court of the civil judge, omitting to sue for Rs. 50,000 in order to bringg the
suit within pecuniary limits. The omitted portion cannot be sued for afterwards.
To give another example: A has let out his house to B at a yearly rent of
Rs. 60,000 and, the rent is due and unpaid for the years 2000, 2001 and 2002, but
if A sues B only for the rent due for the 2002, he cannot afterwards sue B for rent,
either for the year 2000 or 2001. Similarly, where a plaintiff files a suit for
declaration that he continues to be in service but does not claim arrears of salary and
other consequential reliefs, he cannot bring a second suit for reliefs, not claimed in
the previous suit." Such a suit would be clearly barred under O. II, R. 2.
Order I, R. 2 also applies where the plaintiff is entitled to several reliefs in respect
to the same cause of action."" He must seek all such reliefs and if he omits to sue in
respect of any such reliefs, he cannot afterwards sue for such reliefs. In the suit for
specific performance, one must also seek relief of damages/ compensation in the
alternative. But in this part of the rule, it is provided that the plaintiff can omit to
sue in respect of a particular relief with the leave of the court. The leave of the court
is the sine qua non for entertaining a fresh suit for the relief omitted to be claimed.
10. Dalip Singh v. Mehar Singh, (2004) 7 SCC 650.

11. Union of India v. HK Dhruv, (2005) 10 SCC 218.
12. S Santokh Singh v. Gurbax Singh, AIR 2003 NOC 6 (Del).
13. Dalip Singh v. Mehar Singh, (2004) 7 SCC 650.
14. nion of India v. HK Dhru»,(2005) 10SCC 218.
15. Shanker Sitaram v. Balkrishna Sitaram, AIR 1954 SC 352.
16. Stateof MadhyaPradeshv. Mangilal Sharma, AIR 1998 SC 743: (1998)2 SCC 510.
17. Gurbux Singh v. Bhooralal, AIR 1964 SC 1810.
The suit filed for omitted relief after the question of leave and limitation attaining
finality in earlier litigation could not be held barred by limitation." If leave is
granted, he can afterwards sue in respect of such omitted relief. Such leave may be
granted at any stage of the suit, and has to be obtained in the earlier suit and not in
the subsequent suit." There are divergent views as to whether this rule applies to
concurrent reliefs only and not to alternative reliefs. It is advisable to include
alternative reliefs also, if it is not possible to obtain leave of court for such omission.
But without leave of the court, reliefs must be omitted because reliefs are in the
altenative. Before instituting a suit for specific performance i.e. special civil suit,
prior leave is required to be obtained under O. I1, R. 2(3) of the Code."
What will happen if rwo suits are simultaneously filed? Will the O. I1, R. 2 apply
in such case? Different high courts have responded differently. According to the
Bombay High Court, such suits may be consolidated. According to the Allahabad,
Madhya Pradesh and Rangoon High Courts, the later suit must be dismissed. The
plaintiffs must be given an option to elect the suit, according to Madras High Court.
We must await a definite pronouncement of the Supreme Court on such a point.
Till a definite pronouncement is made by the Supreme Court, the proper procedure
must be followed, which is to consolidate such suits.
The underlying object of O. I, R. 2 is to prevent further litigation and to prevent

defendant being vexed rwice in respect of the same cause of action. If the first suit is
pending, the second suit can be consolidated with the first and both may be heard
together. The word afterwards suggests that the prohibition contained in the rule is
intended to apply when the suit is already decided.
Order II, R 2 will not apply where there are different causes of action arising from
the same transaction. Suppose A files a suit for recovery on the basis of a promissory
note and the suit is filed on the ground that there were material alternations in the
note, As subsequent suit on original consideration will not be barred. In Arjunlal
Gupta v. Mriganka Mohan," the first suit ended in a compromise and a consent
decree was drawn up. However, the terms of the consent decree could not be
observed. The second suit was brought, alleging failure to carry out the terms of the
decree and such allegations were part of the cause of action, which was different
from the cause of action in the first suit. Hence, it was held that the consequent suit
was not barred.
However, the bar of O. II, R. 2 of the Code will not apply, where a relief for
which, a subsequent suit is filed was not in existence when the previous suit was
brought or where the cause of action on the basis of which, the previous suit was
brought does not form the basis of the subsequent suit, or where in the earlier suit,
the plaintiff could not have claimed the relief, which he seeks in the subsequent
18. Hindustan Motors Ld. v. D.R Motors, ILR (2010) MP 215.

19. SNP ShippingServicesPut Ld v. World Tanker Carrier Corp., AIR 2000 Bom 34.
20. Vimal Builders v. Ketan K. Thakkar, 2010 (1) Bom CR 398 (407-409) (DB).
21. Arjunlal Gupta v. Mriganka Mohan, AIR 1975 SC 207: (1974) 2 SCC 586.
Chapter 5 Parties and Cause of Action
63
suit. The bar of O. II, R. 2, will also not apply where the court permitted
withdrawal of the carlier suit with liberty to file fresh suit on the same cause of
action." The test for finding out whether a subsequent suit shall be barred because
of the previous suit is whether the claim in the second suit is in fact, founded on a
cause of action which was the foundation of the former suit. IF the answer is in
affirmative, the bar of Order II R.2 would apply. But if it is in negative, it would not
be attracted."
In Mohd. Khalil v. Mahbub ali" the Privy Council laid down the following
principles governing bar to a subsequent suit under O.II R.2 CPC, 1908:
() The correct test in cases falling under O.lI R.2 is "whether the claim in the
new suit is in fact founded upon a cause of action distinct from that which
was the foundation of the former suit."
i) If the evidence to support the two claims is different, then the cause of
action are also different.
() The causes of action in the two suits may be considered to be the same if
in substance they are identical.
Further, the previous barring of the splitting of claims applies only to suits and not
to appeals, insolvency proceedings, execution proceedings and writ petitions.
However, arbitration proceedings have been held to be within the ambit of bar
under O. II, R. 2 of the Code."
5.3 JOINDER OF PARTIES
An act may be done by a single individual and it may affect one person only, say, if
A assaults B, or it may affect two or more persons, when A assaults B and C
simultaneously. If AassaultsB and Con differentoccasions,and not simultaneously,
it is a case, not of a single act or transaction, but of two acts or transactions.
An act, again, may be done by two or more individuals, and it may affect only one
person, as where A and B simultaneously assault C, or it may affect two or more
persons as where A and B simultaneously assault C and D. Where assault is
simultaneous, it is one act. Where it is made on difterent occasions, it is a case of
several acts.
Where an act is done by a single individual, and it affects only one individual,
there is no question of joinder of parties. The question of joinder of parties arises
only where an act or transactions proceeds from two or more persons, or when it
affects two or more persons. Thus if A and B assault C, the question arises whether C
22. Inacio Martins through LRs v. Narayan Hari Nair, AIR 1993 SC 1756:(1993) 3 SCC 123.
23. See Raujibhai Mathurbhai Solanki v Bijabhai Devjibhai Prajapati, AIR 2004 Guj 102.
24. Kewal Singh v. Lajwanti, (1980) 1 SCC 290
.Mohd. Khalil v. Mahbub ali, AIR 1949 PC78
26. K.V. George v. Secretary to Government, Water and Pouwer Department, AIR 1990 SC 53: (1989) 4
SCC 595.
64
can join A and B as defendants in one suit, or whether he should bring a separate
suit against either of them. Similarly, if A assaults B and C, the question arises
whether B and C can join as plaintiffs in one suit against A, or whether they should
each bring a suit against A. The answer to the above questions is given in the rules
below. There is one set of rules for the joinder of plaintiffs and another set of rules
for the joinder ofdefendants.
5.3.1 Joinder of Plaintiffs

All persons may be joined in one suit as plaintiffs:
(i) where the right to relief alleged to exist in each plaintiff arises out of the
same act or transaction; and
(i) where, if suchpersons brought separatesuits, any common question of law

or fact would arise (O. I, R. 1).
Both the conditions are cumulative and not alternative and both must be fulfilled."
However, it is not necessary that all the questions arising in the case should be
common to all the parties and it would be sutficient if one of the questions is
common to them." Although all the persons coming under this rule may join as
plaintiffs, the court has the power to order separate trials when any such joinder
embarrasesthe trial. 9
Illustrations
(a) A and B each buy a certain number of the debentures of a company on the
faith of certain statements made in a prospectus issued by the directors of the
company. A and B may join as plaintiffs in one suit for damages against the
directors, because the publications and the beliet induced are common
questions of facts arising out of the same transaction namely, the issue of the
prospectus.
(b) An altercation takes place between A on the one hand and B and his wife on
the other. A assaults B and his wife simultaneously. B and his wife may join
as plaintiffs in one suit for damages against A.
() A agrees to sell and deliver to B, 500 maunds of sugar at the rate of Rs. 3 per
maund on 4 May 1914. On the same day, he agrees to sell and deliver to Ca
like quantity of sugar at the same rate. B and C cannot join as plaintiffs in
one suit against A because the transactions are different.
Note It is immaterial that the plaintiffs in illusts (a) and (6) each have separate
causes of action against the defendant. It is sufficient if the transaction is the same.
The test is not the identity of the cause of action, but of the act or transaction.
Under the Code of 1882, the test was the identity of the cause of action. Therefore
27. SantSingh v. Des Ram, AIR 1974 P&H 276.

28. SitakRamv. Rajender Chandra, AIR1956 Assam 7.
29. Code of Civil Procedure, 1908, O. 1, R. 2.
30. Drincgubier v. Wood, (1889) 1 Ch 393.
Chapter Parties andCauseof Action
65
A and B in illust (a) could not join as plaintiffs in one suit. It was necessary for each
of them to bring a separate suit. The same remarks apply to illust (6).
5.3.2 Joinder of Defendants

All persons may be joined in one suit as defendants:
)where any right to relief alleged to exist against them arises out of the same
act or transaction; and
(1) where, if separate suits were brought against such persons, any common
question of law or fact would arise (O. I, R. 3).
Both the conditions are cumulative and not alternative and both must be fulfilled."
Like in a case of joinder of plaintiffs, it is enough if there is one question common to
all the defendants which is of sufficient importance. It is also not necessary that all
the defendants should be interested in all the reliefs claimed or that their liability
should be the same;" the rule is only permissive and not mandatory. Similarly, the
court may order separate trials where any such joinder embarrasses or delays the
trial."
The primary object of Rule 1 and 3 of Order I is to avoid multiplicity of suits and
unnecessary expenses.
Illustrations
(a) A, riding in an omnibus belonging to B, is injured through a collision

berween the omnibus and a cart belonging to C. A may join B and C as
defendant in one suit of damages for personal injury caused by their
negligence or the negligence of either of them, because the case involves
common guestions of fact arising out of the same transaction, namely,
collision.36
(b) An altercation takes place between A on the one hand and B and B's son on
the other. B and B'i son simultaneously assault A. A may join B and B's son
as defendant in one suit of damages.
(c) A, B and C each enters into an agreement with D to supply coal to D for his
factory. A, B and C fail to deliver the coal. D cannot join A, B and C as
defendant in one suit for damages, for there are three distinct agreements and
therefore, three difterent transactions,
Note: It is immaterial that the plaintiffs in the aforesaid illustrations have separate
cause of action against each of the defendants. It is sufficient that the transaction is
the same. The test is not the identity of cause of action, but of the act or transaction.
31. Sant Singh v. Des Ram, AIR 1974 P&H 276.

32. SeeSudershan Goel v. Neu Bank of ndia, AIR 1984 P&CH 233.
33. Amar Singh v. Jagdish, AIR 1976 P&cH 276.
34. Code of Civil Procedure, 1908, 0. 1, R. SA
3. Iswar Bhai v. Harihar Behera, (1999) 3 SCC 457
36. Bullock v. London General Omnibus Co., (1907) KB 264.
66
It is important to note such right existing in favour of the plaintifs or against the
defendants need not be joint. It may be joint, several or even in the alternative.
When there is a promissory note payable to A and B jointly, they may sue together
and their interests can be said to be joint but where C has assaulted A y ,t
may bring a single suit though their interest is several and not joint. Ifa Hindu dies
leaving a widow, an adopted son and a separate brother and disputes arise berween
the widow and the adopted son by brother, such a suit can still be maintained
because the claims of the widow and the son can be treated in the alternative. If
adoption is invalid, the properry may go to the widow, and if valid, to the son. This
also applies to suits against the defendants, against whom the plaintift may claim
jointly, severally or in the alternative.
5.4 PROCEDURE IN CASE OF MIsJOINDER OF PARTIESs

If two or more persons are joined as plaintiffs in one suit, in contravention of the
rule given above as to joinder of plaintiffs, the case is one of misjoinder of plaintifs.
Similarly, if rwo or more persons are joined as defendants in one suit, in
contravention of the provisions of the rule given above as to joinder of defendants,
the case is one of the misjoinder of defendants. The objection on the ground of
misjoinder of parties should be taken at the earliest opportunity at the time issues
were raised or before the settlement of issues. However, if ground for objection has
arisen subsequently, it is permissible to raise such objection after settlement ofissues.
It is the duty of the party to raise the objection in the written statement at the
earliest point of time and objection not so taken will be deemed to have been waived
(O. 1, R. 13). Where such objection is taken, and the court finds that it is valid, the
suit shall not be dismissed (O. I, R. 9). The non-impleadment of a necessary party is
fatal even in a writ petition. If a necessary party is not impleaded, no order to the
detriment of a person can be passed without hearing him." The plaint may be
amended by striking out the names of such persons as have been improperly joined
as parties (O. I, R. 10(2)). A misjoinder of parties, either the plaintiffs or the
defendants, is not fatal to the suit. It is only a remedial defect even if the court has
not deleted the parties or any of them and even if such defect is not cured, the
decree or order would be valid and would not be liable to be reserved or
substantially varied.
The objection as to the misjoinder or non-joinder of parties cannot be taken for

che first time in appeal or revision.
However, the things are different, where it is a case of non-joinder of parties. For
the purposes of non-joinder of parties, a distinction has been made between a
necessary party and a proper party."
37. SandhyaraniSahoov. DJs Anr, (2009) 107 CLT 160 (161) (DB).
38. Manoharamma HI Put Ld v. ArunaHotelsLid., AlR 2004 Mad 344.
39. See ch. 3 for a necessary party and a proper party.
Chapter 5 Parties and Causeof Action
67
The provision under 0. I, R. 9 of the code lays down that no suit shall be defeated
by reason of misjoinder or non joinder of parties and the court may in every suit
deal with the matter in controversy so far as regards the rights and interests of the
partiesactuallybefore it."
Under O. 1, R. 9 of the Code, while non-joinder ofa proper party is not fatal to
the suit, non-joinder of a necessary party does prove fatal of the suit, if the plaint is
not amended to implead a necessary party.
5.5 JOINDER OF CAUsES OF ACTION

As regards joinder of causes of action, there are two general rules which apply to all
cases,irrespective of the number of plaintiffs or the number ofdefendants:
) In a suit for therecoveryofimmovableproperty, a plaintif is not entitled,

without the leave of the court, to join any claim except: (a) claims for
mesne profits or arrears of rent; (6) claims for damages for breach of any
contract under which the propery is held; and (c) claims in which the
relief sought is based on the same cause of action (O. II, R. 4). The
provisions of O. l, R. 4 of the Code are aimed at avoiding the claim to
property, to become complicated, by the joinder of other causes of action.
(ii) A agrees to sell a house with all furniture in it to B. A fails to deliver
possession either of the house or of the furniture to B. B may sue A for
possession of the house and join in that suit (a), a money-claim for mesne
profits realised by A, subsequent to the date on which A ought to have
delivered possession of the house to B; (6) a money-claim for any damages
that may have been sustained by B by reason of the breach of contract on
As part; and (c) a claim for the delivery of the furniture but B cannot join
any other claim with the suit.
(ii) A sells and delivers certain goods to B. A dies leaving a will, of which C is
the executor. C sells and delivers to B some goods belonging to him. C
cannot, in the same suit, claim from B, the price of goods sold by his tester
A, and the price of goods sold by him. Similarly, B also sells some goods to
C for C's purposes. B cannot, in the same suit claim from C the price of
goods sold to A and the price of goods sold to C. The general rule is that
no claim by or against an executor, administrator, or heir as such shall be
joined with claims by or against him personally (O. II, R. 5).
We now proceed to deal with the following three cases.
) One plaintiff, onedefendantandseveraclausesto action.

(i) Two or more plaintiffs, one defendant andseveralcauses of acion.
ii) One plaintiff, rwo or moredefendants, andseveraclauses of action.
The rules given below are to be read subject to the rwo general rules given above.
40. Somnah Banerjee v. Arati Rani Chakraborry, AIR 2010 Gau 187 (190).
5.5.1 One Plaintiff, One Defendant, and Several Causes of Action

Where there is only one plaintiff and only one defendant, the plaintiff is at liberty to
unite several causes of action in the same suit against the defendant (O. I1, R. 3). If
the causes of action are so disconnected that they cannot be conveniently tried
together, the court may order separate trials (O. I1, R. 6). Thus, if A sues B for
damages of breach of a dozen contracts berween him and B, the court may, in a
proper case, order separate trials of separatesets of contracts. In Saccharin Corpn Ltd
v. Wild," the plaintiff sought to unite 23 causes of action against the defendant in
the same suit. It was considered an outrageous extension of latitude and almost an
abuse of process ot the court. Though it is not expressly stated in the rule, it is
implicit that two or more causes of action can be united, provided they are
intimately connected with each other or when one was subordinate or collateral to
the other.
5.5.2 Joinder of Plaintiffs and Causes of Action

Where two or more persons are jointly entitled to the relief claimed, as where a
promissory note is passed to A, B and C jointly, there is but one cause of action. In
all other cases, where there are two or more plaintifts, it will be seen that their
causes of action are separate. In these cases, it is enough that the causes of action
arise out of the same transaction, and that there are common questions of law or
fact. It is further necessary that they should be jointly interested in the several
causes of action against the defendant (O. II, R. 3). If the plaintiffs are not so
interested, the case is one of misjoinder of plaintiffs and causes of action. It is not
permissible to join together persons having claims against different persons, and
bring a single suit. Different persons claiming under different pro-notes cannot
join together and file a single suit." It will be seen, however, that in almost every
case, since the passing of the new rules, in which the transaction was the same and
there were common question of law or fact, the plaintiffs, it was held, had a joint
interest in the causes of action, and it was only when there were two or more
distinct acts or transactions, that the suit was held to be bad for misjoinder of
plaintiffs and causes of action.
Where despite objection as to the misjoinder of plaintiffs and causes of action, a

decree is passed for the plaintifs, and the appellate court if finds that there has been
such a misjoinder, it shall not interfere with the decree, unless the misjoinder has
affected the merits of the case (S. 99).
Illustrations
(a)A enters into two agreements with B and C jointly for the sale of goods and
commits a breach. B and C may file a suit claiming damages in respect of
both the agreements. Here, in both causes of action, B and C are jointly
interested and they arise out of same transaction.
41. Saccharin Corpn Ltd v. Wild, (1903) 1 Ch 410.

42. Kota Sreevalli v. Chinni Seetharamaiah, AIR 2005 AP 521.
Chapter5 Parties andCauseof Action
69
(b) X sells to Y rwo plos of land. A claims one plot by adverse
possession, while B claims another plot by adverse possession. A and B
cannot file a suit as co-plaintiffs because they are not jointly interested in the
plots. Their respective claims of adversepossession are in respect of distinct
plots, and A does not claim interest in the plot adversely claimed by B and vice-
versa.
(c) Where A enters into separate agreements with B, C, D, E and E, and

commits breach of such agreements, they cannot join as co-plaintiffs in a suit
because they are not jointly interested in separatecauses of action.
(d) A, shareholder in a company, sues B, C, D, the directors, to recover damages
on his own behalf for fraudulentdy inducing him to purchase shares by
declaring an illegal dividend; and he joins a claim in the same suit on behalf
of himself and all other shareholders for repayment by the directors to the
company of the amount of the divided illegally paid out by them. The suit is
bad for misjoinder of plaintiffs and causes of action, for though the
transaction is the same in a sense, namely, declaration of dividend, the
plaintiffs are not all jointly interested in them. A' grievance, that he
purchased the shares owing to the declaration of the dividend (which showed
that the company was a flourishing one) is peculiar to him only. It is better
to say in this case that there are two acts or transactions, namely, the
declaration of dividend which affected A, with the payment of dividend,
which affected all theshareholders.
5.5.3 Joinder of Defendants and Causes of Action

Where there are two or more defendants and rwo or more causes of action, the
plaintift may unite several causes of action in the same suit against the same
defendants jointly (O. I, R. 3). It is not enough that thecauses of action arise out of
the same transaction, and that there are common questions of law or fact. It is
further necessary that the defendants should be jointly interested in the main ques-
tions raised by the litigation. If this is not so, the case is misjoinder of defendants
and causes of action. It will be seen, however, that in almost every case since the
passing of the new rules, in which the transaction was the same, and there were
common questions of law or fact, the defendants, it was held, had a joint interest in
the main questions raised by the litigation, and it was only when there were two or
more distinct acts or transactions that the suit was held to be bad for misjoinder of
defendants and causes of action. In the case given in illust (c) below," a great effort
was made on behalf of the defendants to show that though the causes of action arose
out of the same transaction, and there were common questions of fact, the
defendants had no joint interest in the main questions raised by the litigation.
However, the efforts failed, and the court of appeal held that the defendants were
properly joined as parties. That case shows to what length the Court of Appeal in
England is prepared to go under the corresponding English Rules. The rule
comprised in O. I and 0. II of the first schedule of the Code have been taken from
the English Rules, and there is no doubt that the courts in India will follow the
43. Stroundv.Lawson,(1898) 2 QB 44.

44. Compania Sansinena v. Houlder Brothers, (1910) 2 KB 354.
decision in that case. It is advisable to read the judgments in that case, as also in
Marks and Co v. KnighrSteamship Co." They throw flood of light on the rules
relating to joinder of parties.
Illustrations
(a) A and B enter into two agreements with C for the sale of goods and commit
breach, for which C may bring a suit against A and B as
co-defendants, claiming damages in respect of both the agreements. Here in
both causes, A and B are jointly liable and they arise out of the same
transaction.
(b) A and B enter into separate agreements with C and commit breach. Here, C
cannot file a suit joining A and B as co-defendants because they are not
jointly liable or answerable. A is not liable for breach committed by B and vice-
versa.
(c) A is the exporter of frozen meat, B is the owner of a line of steamers. By a
contract between A and B, B agrees to carry frozen meat from Argentine to
Europe in steamers belonging to him or in other suitable steamers to be
procured by B. B procures a steamer called the Devon belonging to C, and it
is agreed berween A and B as regards a particular shipment of meat, that it
should be made in the Devon. Meat is accordingly shipped in the Devon, and
the master of the Devon signs the bill of lading in respect of it and hands it to
A. The Devon turns out to be unseaworthy, and the meat is damaged. A sues
B and C, claiming damages against B on the terms of the contract berween
them, and against C upon the bill of lading. It is an implied condition of a
bill of lading that the ship is seaworthy. The suit is not bad for misjoinder,
for the causes of a bill of lading that the ship is seaworthy. The suit is not bad
for misjoinder, for the causes of action arise out of the same transaction,
namely, the alleged unseaworthiness of the Devon; there is a common
question of fact, namely whether the ship was unseaworthy; and the causes of
action are not of such a character that they cannot be combined together."
(d) A delivers cotton to B, C and D under separate contracts to be ginned in

their respective factories. B C and D fail to gin the cotton, A sues B, C and
D, for damages for breach of the contracts. The suit is bad for misjoinder of
defendants and it is also bad for misjoinder of defendants and cause of
action. Here, there are three distinct agreements, i.e., three distinct
transactions, each giving rise to a distinct cause of action, one against B,
another against Cand the third against D.
5.5.4 Joinder of Plaintiffs, Defendants and the Causes of Action

Where there are two or more plaintifs, rwo or more defendants and severalcauses of
action, the plaintiffs may unite the cause of action against the defendants in the
same suit only when all the plaintiffs and all the defendants are jointly interested in
all, the causes of action. However, if neither the plaintiffs nor the defendants are
jointly interested in the causes of action, the suit will be bad on rwo counts-for
45. Marks and Co v. Kight Steamship Co., (1910) KB 1021.

46. Compania Sansinena v. Houlder Bros., (1910) 2 KB 354.
Chapter 5 PartiesandCauseof Action
misjoinder of plaintiffs and causes of action; and misjoinder of defendants and

71
causes of action.""
5.6 PROCEDURE IN CASE OF MISJOINDER OF PARTIES AND

CAUSE OF ACTION
The objection as to misjoinder of parties and causes of action should be taken at the
earliest possible opportunity, otherwise, it would be deemed to have been waived
(O. I1, R. 7). In all cases where issues are settled, objection must be raised before the
settlement of issues. However, it can be raised thereafter, if it can be shown that
grounds tor objection arose subsequently. Where such objection is taken, and the
court finds that it is valid, the court may allow the plaintiffs, where the case is one of
misjoinder of plaintiffs and causes of action, to elect which of them should proceed
on the plaint already filed, and the plaint may then be amended by striking out the
names of the other plaintiffs and all references to the claims made by them. Thus, in
the case given in the illust. (d) under the head Joinder of Plaintiffs and Causes of
Action, A may be allowed to elect to proceed with his claim for damages, in which
case, all references to the claim made by A and the other shareholders for a refund of
the dividend should be struck out and a separate suit may be brought in respect
thereof. Where the case is one of misjoinder of defendants and causes of action, the
court may allow A, in illust. (d) under the head Joinder of Defendants and Causes
of Action' to elect to proceedagainst any one of the threedefendantsB, Cand D. If
A elects to proceed against B, the names of C and D should be struck out from the
title of the suit as well as from the body of the plaint, as also all reference to the
agreements with Cand D (O. VI, Rr. 17, 18).
5.7 NON-JOINDER OF PARTIES

Persons, who are necessary parties to a suit should all be joined as parties, otherwise
it is a case of non-joinder of parties. Necessary parties are the parties whose presence
is essential and in whose absence, no effective decree can be passed at all. They are
the partics who ought to have been joined' within O. 1, R. 10(2).** 'Rule 10(2) of
Civil Procedure Code gives a wider discretion to the Court to meet every case or
defect of a party and to proceed with a person who is a either necessary party or a
proper pary whose presence in the Court is essential for etfective determination on
the issues involved in the suit. Thus, if A passes a promissory note, jointly to B, C,
and D, all three must join as plaintiffs in one suit against A." Similarly, in a suit for
a partition of joint family property, all the members of the joint family should be
joined as parties to the suit. On the same principle, all the members of a partnership
are necessary parties to a suit for partnership accounts. If any of the persons
interested refused to join as a plaintift, he should be joined as a defendant, for no
47. Madan Lal Raja Ram u. Munshi Daru, AIR 1956 Pepsu 80.
48. Kasturi v. lyamperumal, AIR 2005 SC 2813: (2005) 6 SCC 733.
49. ThomsonPress (lndia) Lud, v. Nanak Builders Investors P. Lid, 2013 (5) SCC 397
72
person can be added as a
plaintif, without his consent [O. 1, R. 10(3)].

Chapter 5
Where a
person, who is a necessary party to a suit has not been joined as a party, leave to
amend the plaint may be applied for, and such leave will, as a rule, be granted. Such
leave will not be granted, if on the date of the application, the suit in respect of that
person is barred by limitation." A, B and C are members of a partnership. The
partnership is dissolved on 1 January 1910. A sues B in December 1912 for
partnership accounts, but omits to join C as a defendant. B contends that C is a
necessary party to the suit, and that the suit cannot be proceeded with, in his
absence. Thereupon, A applies in February 1913 for leave to add C as a party. The
application must be refused, for in February 1913, the suit as respects C is barred by
limitation, and the suit must be dismissed. A suit for an account of a dissolved
partnership should be brought within three years from the date of dissolution."A
could have joined Cas a defendant at any time up to 1 January 1913. He cannot do
so after that date. It is highly damaging to omit to join parties to a suit, particularly
if they are necessary parties thereto.
5.7.1 Effect of Non-joinder of a Necessary Party

If a necessary party is not joined, its absence shall be fatal to the
suit and it will be
liable to be dismissed. Its defect cannot be cured in any manner. The decree passed
in absence of a necessary party will be nullity" or null and void, being violative of
principles of natural justice. In the case ofnecessaryparties, the courts cannot decide
the suit at all in their absence." Even in a case where a necessary pary is not joined,
the court cannot straight away dismiss the suit and opportunity must be given to the
plaintiff to amend the plaint by adding parties necessary for effective adjudication."
If the plaintiff does not do so, even after being required to add anecessary party, the
suit shall be dismissed. The plaintiff will not be allowed to rectify the error in an
appeal from the decree in a suit, where there was a case of non-joinder of necessary
party and where objection was taken in the suit."
The question whether any person is a necessary party has to be answered in the
background of facts and circumstances of each case. There is no hard and fast rule to
answer this question. No guidance is available from the Code as to the persons who
ought to have been joined in a suit, but the underlying principle from the decided
cases show that those persons are considered necessary parties, without whom no
effective decree can be passed at all, and who are directly and legally interested in
the dispute involved". A person is not anecessary party, if an effective decree an be
granted in its absence or who is not directly interested in the issues but only
S1. Limitation Act, 1963, s. 21.

52. Limitation Act, 1963, Art. 5.
53. Khetrabasi Biswal v. Ajaya Kumar Bansal, (2004) 1 SCC 317.
54. Profula Chorone v. Satya Chorone, AIR 1979 SC 1682.
55. AIR 1979 Tri 80.
Naba Kumar v. Radha Shyam, AIR 1931 PC 229.
57. Kanakarathanammul v. Logananatha, AIR 1965 SC 271.
S8. Kasturi v, byamperuma, AIR 2005 SC 2813.
59. HBL Ltd v. Union of India, (2001) 7 AD Del 1060.
Chapter 5
indirectly affected.
Parties andCauseof Action
"If a special statute makes a person a necessary pary

73
to the
proceedings and also provides that non-joinder thereof will result in dismissal of the
petition, the court cannot use the curative powers of O.I R.10 as to avoid the
consequences of non-joinderot such party. 60
In certain cases, there are enacted rules to determine necessity of a party, for eg,
0. XXXI provides that in a suit against a trust, all trustees ought to be joined as
defendants. Here, it will not be necessary to consider whether effective decree can be
passed in absence of all the trustees, because rules require that all the trustees must
be joined. Therefore, where there are statutory provisions regulating the constitution
of the suit and parties to be joined, the answer is provided by statute itself and all
such parties ought to be joined, unless provision is construed to be directory.
5.7.2 Effect of Non-joinder of a Proper Party

The consequences of omission to join a proper party are not the same as in the case
of a necessary party. If a proper party is not joined, the suit will not fail, but the
court will decide the suit as it stands and its outcome shall not bind the party. The
court shall decide the matters in controversy on the basis of rights and liabilities of
parties actually before it but the court cannot determine rights or liabilities or parties
in their absence and, therefore, its decree, as a general rule, shall not bind persons
who were not parties betore it.
5.7.2.1 Who is a Proper Party?

A person whose presence may be necessary in order to enable the court to adjudicate
effectively and completely all questions involved in the suit, is a proper party. In
cases of eviction on the ground of sub-letting or unauthorized transfer, sub-tenant or
transferees are proper parties if not necessaryparties. The presence of such a party
is a matter of convenience for the court. It will depend upon the facts and
circumstances of each case. It is a matter of discretion and the court will decide
whether presence of a party 1s so necessary or not.
In Razia Begum v. Sahebzadi Anuwar Begum," the Supreme Court considered the
power of court to add parties. Justice Fathima Beevi observed as under:
Rule 10(2) gives the court a wide discretion to meet every case of detect of
parties, and is not affected by the inaction of the plaintiff to bring the
necessary parties on record. A necessary party is one without whom no order
can be made effectively. A proper party is one in whose absence an effective
order can be made but whose presence is necessary for a complete and final
decision on the question involved in the proceeding.
60. Mohan Raj v. Surender Kumar, AIR 1969 SC 677.

61. Abdul Kareem v. Hashim, 2010 (3) KLT 667: 2010 (2) Rent CR 647 (DB).
62. Racia Begum v. Sahebzadi Anwar Begum, AIR 1958 SC 886.
The addition of parties is a question of judicial discretion, which has to be exercised

Chapter 5
63
in view of all the facts and circumstances of a particular case.
The power of the court is not restricted to cases where either party makes an
application for addition of parties. It can be exercised suo motu by the court if it
appears that there is a necessity to join any person as necessary or proper party. In a
suit for specitic pertormance, a stranger to the contract is not a proper party. 4
.9
L
-4
- .
63. RameshH Kundanmalv. Municipal Corpn of GreaterBombay, (1992) 2 SCC 524.

64. Rasiklal v. Natwarlal, AIR 1975 Guj 178a: (1975) 16 GLR 533; Panne Khushali u. Jervanlal, AIR 1976
MP 148. Se the Code of Civil Procedure, 1908, 0. 1, 0. I, Rr. 3, 4, 5; O. VI, Rr. 17, 18.
CHAPTER 6
STEPS INA SUIT
6.1 INSTITUTION OF A SUIT [ORDER IV, RULE 2

Every suit is to be instituted by presenting a plaint to the court or to such ofticer as
it appoints in that behalf (O. IV, R. 2). The plaint must be presented in duplicate,
and must comply with the general rules as to pleadings' and with the provisions of
the Code dealing with the plaints," to the extent they are applicable. Unless these
requirements are fulfilled, the plaint cannot be deemed to have been duly instituted.
Usually, the plaint must be presented on a working day and during office hours,
however, a judge may accept a plaint at his residence, even after the office hours.
The day of institution of proceedings shal be the day of filing of claim, in
accordance with the procedure prescribed, betore the authority empowered to
receive it, and not the day when the court takes up the plaint for consideration, and
applies its mind to the merits of the matter.
A plaint may be presented personally by the plaintiff or by a person duly

authorised by him or by his pleader. 'As per the provisions of Order III Rule 4, once
the counsel gets power of attorney/authorization by his client to appear in a matter,
he gets a right to represent his client in he Court and conduct the case."
Presentation by a person who had no power of attorney is a mere irregularity.
Similarly, omission to sign and verify a plaint are mistakes which can be rectified
subsequendy.' Further, where the plaint filed is not accompanied by supporting
affidavit as required by the provisions of O. VI, there would be no due institution of
the plaint. The defect can be removed by filing the affidavit. However, the
rectification would not relate back to the when, in view of deeming clause, there
would be no valid institution of the suit."
Further, the plaintiff must enter in a list, all the documents on which he relies in
the suit and which are in his possession or power and produce the list in court, at
1. Code of Civil Procedure, 1908, O. VI.

2. 1bia., 0. VIl.
3. Secretaryto the Governmentof Orissa v.SarbeswarRout, AIR 1989 SC 2259:(1989) 4 SCC 578.
4. Y. Seebachen v. Superintending Engineer, WRO/PWD 2015 (1) R.C.R.(Civil) 89
5. Bal Mukund Prasad Gupta v. Mathura Prasad, AIR 2002 All 363.
6. Bhakti Hari Nayak v. Vidyawati Gupta, AIR 2005 Cal 145.
76
the time of presentation of the plaint. At the same time, the plaintiff must deliver
the documents and a copy of the documents to be filed with the plaint.
Where the plaintiff relies on a document which is not in his possession and power,
he must state in whose possession or power it is, wherever possible.° A document
which ought to be produced in the court by the plaintiff at the time of presentation
of the plaint, or to be entered in the list and annexed with the plaint, but which is
not produced or entered accordingly will not be received in evidence on his behalf at
the hearing of the suit without the leave of the court. However, these provisions are
not applicable to documents produced for the examination of plaintiff's witnesses or
handed over to a witness to refresh his memory."
Where the plaint is admitted and the court orders for service of summons on the
defendant(s) which has to be in the manner as provided under O. V of the Code, it
will direct the plaintiff to present as many copies of the plaint alongwith copies of all
documents on which plaintiff relies as there are defendant(s), within seven days of
the order along with requisite court fee for the service of summons on the
defendant(s)," as non-compliance of O.VII R.9 will result in rejection of plaint.
The court, in which a plaint is presented may accept the plaint, or reject the
plaint, or it may return it to the plaintiff.
The plaint shall be rejected in the following cases:
(a) where it does not disclose a cause of action;
(b) where the suit appears to be barred by the law of limitations;
() where the relief claimed is undervalued, and the valuation is not corrected
by the plaintiff within the time fixed by the court;
(d) where the relief claimed is properly valued, but the plaint is written upon
paper which is insufficiently stamped, and the requisite stamp-paper is not
supplied by the plaintiff within the time fixed by the court;
(e) where the plaint is not presented in duplicate;
(where the plaintiff fails to comply with the provisions of R. 9, ie., with the
procedure on to admission of plaints."
Different clauses in O. VII, R. 11 provided in relation to rejection of plaint should
not be mixed up. In a given case, an application for rejection of the plaint may be
filed on more than one ground and a clear finding to that effect must be arrived at."
A plaintiff, whose plaint is rejected may appeal from the order rejecting the plaint
(S. 96), or he may present a fresh plaint (O. VIl, R. 13), but it is no use presenting a
7. Code of Civil Procedure, 1908 (assubstituted by the Amendment Act of 1999), O. VIII, R. 14(1).
8. Tbia.. (as substituted by the Amendment Act, 1999 w.e.f. 11 July 2002 which is the same as O. VI,
R. 15 earlier), O. VII, R. 14(2).
9.Tbid., (as substituted by the Amendment Act, 2002 w.e.f. 1 July 2002), O. VIl, R. 14(3).
10. bid,(as substituted by the Amendment Act, 1999 w.e.f. 1 July 2002), O. VIl, R. 14(4).
11. Tbid., (as substituted by the Amendment Act, 2002 w.e.f. 1 July 2002), O. VII, R. 9.
12. Code of Civil Procedure, 1908, (as amended by the the Amendment Act, 2002 w.e.f. 1 July 2002 under
whichcl. I) and () areinserted),O. VII, R. 11.
13. Kamala v. K.T. Eshwara SA, (2008) 12 SCC 661 (668).
Chapter 6 Steps in a Suit
fresh plaint where the original plaint is rejected on ground (b). The proper course in
such a case is to appeal from the order. The order falls within the
7
definition of
decree' [S. 2(2)] and is appealable. The appeal was liable to be rejected where trial
court has considered matters which were outside the purview of the plaint, to hold
that the suit is barred by law."
The provision contained in O. VII, R. 11 is mandatory and the court has no

discretion to reject the plaint once contingencies specified in the Code occur.
However, before rejecting the plaint, opportunity should be given to the plaintiff to
remove the ground of objection wherever it is possible to do so. Suppose if the
plaintift makes an application for amendment of plaint which seeks to remove the
objection on account of which the plaint was liable to be rejected, such amendment
should be considered before rejecting the plaint.
A plaint is liable to be rejected, if it does not disclose a cause of action. However,

in order to reject a plaint on this ground, it is only the substance of the plaint and
not its form, that has to be looked into.
In TArivendandam v. TV Satyapaland anor. Krishna Iyer J observed as under:
If on a meaningful-not formal-reading of the plaint it is manifestly

vexatious and meritless in the sense of not disclosing a clear right to sue, the
trial court should exercise its power under O. VII, R 11, CPC...
A distinction lies berween "there is no cause of action' and 'the plaint does not
disclose a cause of action'. In the former case, the plaint can be rejected even without
issuing a summons to the defendant, whereas in the latter, the court, after consi-
dering the entire material on record shall come to such a conclusion." 6
I, after examination of oral and documentary evidence adduced by the party, the
court comes to the conclusion that there is no cause of action, it is quite different than
a finding that the plaint itself does not disclose a cause of action. In the former case,
the suit has to be dismissed, while in the latter, the plaint is liable to be rejected."
It is settled law that for the purpose of disposal of an application for rejection of
plaint under O. VII, R. 7(d) of the Code, the court must treat all the averments
made in the plaint to be true and if it appears that even if the statements so made are
treated to be true, the suit is barred by any law for the time being in force, the court
can reject the plaint." An application for rejection of the plaint has to be decided by
the court on the basis of averments in the plaint and filing of written statement by
contesting defendant is not necessary." The court would take the allegations
14. Hammappa v. Chikkannaiah, 2009 (1) Kar LJ 269 (273) (DB).

15. TArivendandam v. TV Satyapaland anor, AIR 1977 SC 2421: (1977) 4 SCC 467.
16. ReptacosBrett Co Ld v. GaneshProperty, AIR 1998 SC 3085; Stateof Orissa v. Klockner ó Co, AIR 1996
SC 2140:(1996) 8 SCC 377.
1. Jagannathv. Chandrawati, AIR 1970 All 309 (FB).
18. Gauri Shankar Das u.KC Das Put.Ltd., 2011, AIR CC 1711 (Cal-DB).
19. See Saleem Bhai v. State of Maharashtra, AIR 2003 SC 759, see aso N. Ravindran v. V. Ramachandran,
AIR 2011 Mad 136 (138).
contained in the plaint as correct and would not look into the allegations made in
the written statement." Power under Order 7 Rule 11 of Civil Procedure Code can
be exercised at any stage of the suit either before registering the plaint or after the
issuance of summons to the defendants or at any time before the conclusion of the
trial. The averments in the written statement are immaterial and it is the duty of the
Court to scrutinize the averments/pleas in the plaint. In other words, what needs to
be looked into in deciding such an application are the averments in the plaint. At
that stage, the pleas taken by the defendant in the written statement are wholly
irrelevant and the matter is to be decided only on the plaint averments. If clever
drafting has created the illusion of a cause of action it should be nipped in the bud at
the first hearing by examining the parties under Order 10 of the Code." Where
plaint is rejected for want of jurisdiction, averments made in plaint are germane,
pleas taken by defendant in written statement would be wholly irrelevant at that
stage. When the plaint read as a whole does not disclose material facts giving rise
to a causc of action, it may be rejected in terms of O. ViI, R. 11. However,
disputed questions cannot be decided at the time of considering application under
O. VII, 11." The power under O. VIL, R. 11 can be exercised at any stage of the
suit, before registering the plaint or after issuing summons to the defendant at any
26
time before the conclusion of trial." Application by a party is not necessary
O. VII, R. 11(d) provides for rejection of plaint if it is barred by any law. Such an
embargo in the maintainability of the suit must be apparent from the averments
made in the plaint. This rule of the Code being one of the exceptions must be
striccly construed. In Minakshisundaram Chettiar v. Venkatachalam Chettiar, the
Supreme Court observed as under:
If on the materials available before it, the court is satisfied that the value of
relief as estimated by the plaintiff in a suit for accounts is undervalued, the
plaint is liable to be rejected under Order 7, R. 11(b)... The plaintiff cannot
arbitrarily, and deliberately undervalue the relief.
If the suit is instituted against government, without addressing the statutory notice
under S. 80, the plaint is liable to be rejected. However, if the plaintiff pleads a
waiver of notice, he must be given an opportunity to establish waiver. In view of
privileges enjoyed by members of Parliament, suit for damages for defamatory
statements made in Parliament is not maintainable, and is liable to rejected."
20. Exphar SA u. Eupharma Laboratories Ltd, AIR 2004 SC 1682: (2004) 3 SCC 688.
21. Church of Christ Charitable Trust Edu. Charitable Society v. Ponniamman Educational Trust, 2012 (8)
SCC 706
22. Wipro Limited v. O.C.A India (P) Ltd, AIR 2008 Mad 165 (DB).
23. Churchof North India v. LavajibhaiRatanjibhai, AIR 2005 SC 2544.
24. Popat and Kotceha Propery v. State Bank of India, (2005) 7 SCC S10.
25. Saleem Bhai v. State of Maharashtra, AIR 2003 SC 759.
26. Vithalbai (P) Ltd v. Union Bankof India, AIR 2005 SC 1891: (2005) 4 SCC 315.
27. Vishnu Dutt Sharma v. Daya Sapra, (2009) 13 SCC 729 (736).
28. Minakshisundaram Chettiar v. Venkatachalam Chettiar, AIR 1979 SC 989: (1980) 1 SCC 616.
29. Ebrahim Mohammadbhai v. State, AIR 1975 Bom 17.
30. TKJain v. S Reddy, AIR 1971 Del 86.
79
If on examination of the plaint, it clearly appears that the suit is barred by
limitation, the plaint is liable to be rejected. Where the suit filed earlier was at the
stage of recording of evidence and the application under O. VII, R. 11 of the Code
is filed to delay the proceedings of the suit, the application under O. VII, R. 11 of
the Code would be rejected." The rejection of plaint at a belated stage after the
filing of written statement, framing of issues and cross-examination is not
approved. Limitation would not commence unless there has been clear and
unequivocal threat to rights claimed by the plaintiff."
At what stage can the rejection of plaint takeplace?
Rejection of the plaint on ground that the suit is barred by a law. Said question
can be raised at any time by defendant. Adjudication in respect of that question
would depend upon the facts and circumstances of each case. For deciding that
question, only averments made in the plaint are relevant." The grounds maintained
in O. VIl, R. 11 are not exhaustive. Those are not the only grounds upon which the
plaint can be rejected. The court has inherent powers to reject the plaint on the
ground other than those mentioned in O. VII, R. 11, if there is a failure to comply
with the mandatory legal requirements or where a reading the allegations in the
plaint reveals that the same is abuse of the process of law. The fact that the
plaintifts were put in possession of the property agreed to be sold on the date of
agreement itself would not make any difference with regard to the limitation of
filing the suit for specific performance."However, plaint can be rejected in part, i.e.,
any particular portion of the plaint cannot be rejected though it can be rejected
against one or some of the defendants. The plaint can be rejected as a whole if it
does not disclose the cause of action. A part of it cannot berejected."
Rejection of the plaint under Order 7 Rule 11 of the CPC is a drastic power
conferred in the court to terminate a civil action at the threshold The conditions
precedent to the exercise of power under Order VII Rule 11, therefore, are
stringent. It is the averments in the plaint that has to be read as a whole to find out
whether it discloses a cause of action or whether the suit is barred under any law."
For instance, plaint signed by a person not so authorised by the plaintiff and the
defect, not cured within the time granted by the court; or where the plaint does not
disclose a clar right to sue.
The rejection of a plaint on any of the grounds stated in O. VII, R. 11 of the
Code, does not preclude the plaintif from presenting a fresh plaint, in respect of the
samecause of action.
31. Dwarika Prasadv. Rameshwar Dayal, (2010) 13 SCC 569 (572). 1 319613 1
32. Ram Prakash Gupta v. Rajiv Kr. Gupta, (2007) 10 SCC 59.
33. C. Natrajan v. Ashim Bai, AIR 2008 SC 383 (DB): (2005) 7 SCC 5101: (2004) 1 SCC 271, relied on.
34. Om Aggarwal v. Haryana Financial Corporation, (2015) 4 SCC 371
35. Raghunath Prusti v. Sardekh Khan, AlR 1958 Ori 111.
36. ITCLtd., u. DebtRecovery Tribunal, AlR 1998 SC 634: (1998) 2 SCC 70.
37. Fatehji o Companyv. L.M. Nagpal,2015(2) R.C.R.(Civil) 999
38. Sopan Sukhdev Sable v. Assistant Charity Commr., AIR 2004 SC 1801: (2004) 3 SCC 137.
39. Roop Lal v. Nachhattar Singh, (1982) 3 SCC 487
40. P.V. Guru Raj ReddyRep.by GPA Laomi Narayan Reddy v. P. Neradha Reddy, 2015 (2) R.C.R. (Civil) 43.
41. Code of Civil Procedure, 1908, O. VI, R. 13. However, it may not apply tocaseswhere the plaint has
been rejected on the ground enumerated in O. VII, R. 11 (d) of the Code.
80 Mulla The Key io lndian Practice Chapter 6
Where the plaint is presented to a wrong court, it 'shal' be returned to be

presented to the proper court; and this may be done at any stage of the suit (O. VII,
R. 10). Where at any stage of the suit, the court finds that it has no jurisdiction,
whether territorial, pecuniary or as to subject matter, the court is bound to return
the plaint to be presented to the proper court where it ought to have been instituted.
The requirement under the rule is mandatory, but such an order cannot be made til
court has come to a definite finding that it has no jurisdiction, and the suit should
have been instituted in another court. court has no power to order return of a
plaint simply because it would be more advantageous for the defendant. The plaint
can be returned, provided absence of jurisdiction is disclosed in the plaint itself. If
the court comes to such a conclusion after contest and after evidence is adduced, the
suit should be dismissed."" The plaint can be returned for presentation before the
proper court having jurisdiction even at the stage of final hearing of the suit." How
ever, where by an amendment in the suit, the valuation of the suit is increased so as
to go beyond the pecuniary jurisdiction of the court, it would not be a case of suit
wrongly instituted attracting provisions of O. VII, R. 10." Where an application for
rejection/return of the plaint is filed only to delay the progress of suit,
dismissal of such application with costs would not require any interference."
Where plaint is returned under this rule, the second suit instituted in proper court
cannot be regarded as continuation of first suit for the purpose of limitation." The
time taken in the first suit may be excluded in the computation of period of
limitation in view of S. 14 of Limitation Act, 1963. When the plaint is filed in a
proper court, after getting it back from the wrong court, it cannot be said to be a
continuation of the suit and the suit must be deemed to commence when a plaint is
filed in the proper court.""
An order passed under O. VII, R. 10 for return of plaint is an appealable order
under O. XLIII, R. 1(a). An order for return of plaint can be passed at the appellate
or revisional stage even after the decree is passed. Suit filed in the Court which had
no jurisdiction. Plaint be returned to plaintiff even if trial was concluded and decree
48
passed.
Once the court has decided to return the plaint, it must intimate its decision to the
plaintiff before actually passing any order. The plaintift may, thereafter, make an
application that the court may specity the other court where and on what date the
plaint has to be presented, and may issue notice to the plaintiff and the defendant. If
such an application is made, the court shall fix the date for appearance in a specified
court and issue notices to the plaintiff, and the defendant of such date. In such a case,
the necessity of issuance of summons when the second suit is brought is obviated
unless the court otherwise directs and the said notice is deemed to be a summons.
42. (1979) All LJ 1086.

43. Madhavi Dasu. TataEngineering,(2005) 3 CHN 252 (DB) (Cal).
44. MKModi v. KKModi, AIR 2005 Del 219.
45. Laxman Pd. u. Prodiy Electronics Ltd, (2008) 1 SCC 618: (2008) 1 SCC 618.
46. Amar v. Union of India, AIR 1973 SC 313: (1973) 1 SCC 115.
47. Harshad Chimanlal Modi v. DLF Universal Ltd. ,(2006) 1 SCC 364.
48. ONGC Lid. v. Mk. ModernConstructionand Co. AIR 2014 (SC)83.
Chapter 6 Steps in a Suit 81
However, it must be remembered that if the plaintiff makes such an application, he

loses the right to prefer appeal from order under O. XLIII, R. 1(a).
The suit which is instituted on the re-presentation of the plaint in the competent
court after its return by the court which lacked jurisdiction, is a freshly instituted
suit within the provisions of the Code. Such a suit will be tried de novo in
accordance with the provisions of the Code."
If there is no ground for rejecting or returning the plaint, the court should admit
the plaint. After the plaint is admitted, it is numbered and registered as a suit
(O. IV, R. 2).
6.2 SUMMONS TO DEFENDANT [ORDER V

The next step after the suit has been duly instituted and admitted is that a summons
may be issued to the defendant to appear and answer the claim, and the defendant
may be served in the manner prescribed, not beyond 30 days from the date of
institution of thesuit.
The day for the appearance of the defendants may be fixed with reference to the
current business of the court, the place of residence of the defendant(s) and the time
necessary for service of summons, and must be fixed in such a manner as to allow
the defendant sufficient time to enable him to appear and answer."
The summons must also order the defendant to produce all documents or copies
thereof in his possession or power upon which he intends to rely in support of his
case. Every summons must be accompanied by a copy of the plaint." When a
summon is sent calling upon a defendant to appear in the court and file his written
statement, it is obligatory on the part of the court to send a copy of the plaint and
other documents appended thereto, in terms of O. V, R. 2. In the absence of a copy
of plaint and other documents, the defendant would be unable to file his written
statement."4
What is a summons? There is no definition provided in the Code. In substance,
summons means a notice that suit or legal proceedings have been filed and a person,
to whom it has been issued is required to remain present for specified purpose.
6.2.1 What Constitutes a Summons?

(a) The name of the court in which the suit or legal proceedings are
instituted.
(b) The purpose for which the presence of defendant is required.
49. VogelMedia International v. JasuShah, 115 (2004) DLT 679: AlR 2005 (NOC) 292 (Del).
50. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 11 July 2002), s. 27.
51. Tbid., O. V, R. 6.
52. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 11 July 2002), 0.v,
R. 7.
53. Tbid., (as substituted by the Amendment Act, 1999 w.e.f. 1 July 2002), O. V.
54. Nahar Enterprises v. Hyderabad Aluyn Lsd., (2007) 9 SCC 466 (467, 468).
() The date and time ofappearance.

(d) The seal and signature of the judge or officer appointed in this behalf.
It must be accompanied by a copy of plaint, or where permitted, a concise statement
thereof. In summary suits under O. XXXVI, it must also be accompanied by copies
of documents produced along with a copy of the plaint.
There can be several purposes for which summons can be issued to the defendant.
It may be for appearance and answer, or for settlement of issues or final disposal 'of
the suit, etc.
The following is the form of summons for the final disposal of the suit:
[Inthe.. Court....
Suit No 500 of 1914
AB of Bombay Hindu Inhabitant, a coal broker, Plaintiff residing in the Fort CD
of Bombay Hindu Inhabitant, a cloth merchant Defendant residing outside the Fort
To
CD of Bombay Hindu Inhabitant,
Whereas AB of Bombay Hindu Inhabitant has instituted a suit against you for
specific pertormance of an agreement to sell certain immovable property described
in the said agreement, you are hereby summoned to appear in this court in person or
by a pleader duly instructed, and able to answer all material questions relating to the
suit, or who shall be accompanied by some person able to answer all such questions
on the.... day of ... .19 .......... at ... o'clock in the.
noon, to answer the claim, and as the day fixed for your appearance is appointed for
final disposal of the suit, you must be prepared to produce on that day all the
witnesses upon whose evidence and all the documents upon which you intend to
rely in support of your defence.
Take notice that in default of your appearance on the day before mentioned, the
suit will be heard and determined in your absence.
Given under my hand and theseal of the court, this day of 19.....
Judge
Notice-1. Should you apprehend your witnesses will not attend on their own
accord, you can have a summons from this court to compel the attendance of any
witness, and the production of any document that you have a right to call upon the
witness, and the production of any document that you have a right to call upon the
WItness to produce, on applying to the court and on depositing the necessaryexpenses.
2. In case of a money claim, if you admit the claim, you should pay the money
into court together with the costs of the suit, to avoid execution of the decree which
may be against your person or property or both.
83
A summons may be issued to the defendant (s) to appear and answer the claim to
the plaintiff, and to file the written statement of his defence, within 30 days from
the date of service of summons.Where a defendant(s) appears on the date of
presentation of the plaint and admits the claim of the plaintift, summons may not
be issued to such a defendant(s)." Where the defendant(s) fails to file written
statement within the specified period of 30 days from the date of service of
summons, he may be allowed to file the same on some other day not beyond the
period of 90 days from the date of service of summons, for reasons to be recorded in
writing."
6.2.2 Service of Summons

The next step after the issue of summons is to serve it on the detendant. The service
of summons of the defendant is quite necessary and is of prime importance, as it is
intended to inform him of the institution of a suit against him, and to extend him
an opportunity to resist the suit. Keeping in pace with the technological and other
developments, O. V of the Code, dealing with service of summons, has been
thoroughly amended by the Amendment Act, 2002 incorporating all these technolo-
gical and other developments to be used for service of summons.
6.2.3 Personal or Direct Service

In ordinary cases the summons should be served either upon the defendant in
person or on his agent empowered to accept service on his behalf. Where the
defendant or his agent so authorised is residing within the jurisdiction of the court,
in which the suit has been instituted, the summons may be delivered or sent to the
proper officer or to a courier service approved by the court."
The service of summons, addressed to the defendant or his agent, so authorised

may be made by delivering or transmitting a copy of the summons by:
) registeredposatcknowledgemendtue;
() speedpost;
(ii) a couricer service approved by the high court,
iv) any other means oftransmission ofdocuments, including,
(a) fax message;
(b) electronic mail service, etc.
However, all the expenses for the service of summons to the defendant have to be
borne by the plaintiff.
55. Code of Civil Procedure (as substituted by the Amendment Act, 2002 w.e.f. 1 July, 2002) O. V,
0).
S6. Ibid. (as sustituted by the Amendment Act, 2002 w.e.f. 1 July 2002), first proviso to O. V, R. 1(1).
.Tbid (as substituted by the Amendment Act, 2002 w.e.f. 1 July 2002), second proviso to O. V, R. 1 (1).
8. Code of Civil Procedure, 1908 (as substituted by the Amendment Act, 2002 w.e.f. 1 July 2002), O. V,
R. 9(1).
59. Tbid. (as inserted by the Amendment Act, 2002 w.e.f. 1 July 2002), O. V, R. 9(3).
60. Tbid (as inserted by the Amendment Act, 2002 w.e.f. 1 July 2002), proviso to O. V, R. 93).
Mula The Key to Indian Practice Chapter 6
84
Where the defendant does not reside within the jurisdiction of the court in which
the suit has been instituted and the court directs the service of summons on the
defendant in any of the aforesaid modes, except by registered post acknowledgement
due, the provisions relating to the service of summons, where the defendant resides
within the jurisdiction of another court, shall not apply.°"
The summons shall be taken to have been duly served, if the article containing
summons is received back with the endorsement of the postal employee or the
person authorised by the courier service, that the defendant or his agent has refused
to accept the delivery of the article as it is presumptive evidence of due service,
especially when the address given on the registered letter is admitted to be correct.
Where the summons was properly addressed, pre-paid and duly sent by registered
post acknowledgement due, the summons shall be taken to be duly served, even if
acknowledgement has been lost, mislaid or not received back by the court, within 30
days from the date of issue of summons. Where summons or notice by registered
5
post is sent at the given and correct address, there is a presumption of due service.
The filing of the registered cover of the notice is not enough and the contents of the
nature have also to be brought on record.
In addition to the service of summons on the defendant by the court, the court
may permit the plaintiff to effect service of summons for appearance on the
defendant and deliver the summons to the plaintiff, if the plaintiff moves an
application for the same. However, where the summons so delivered to the plain-
tiff is returned back as refused by the defendant, then the service of summons shall
be effected by the court. "Though there can be no objection in giving an
opportunity to the plaintiff to serve summons on the defendant, there should be
sufficent sateguards to avoid false report of service of summons. High Courts should
make appropriate rules or issue practice directions to ensure that the provisions are
properly implemented and there is no abuse of process of law.
i) Where there are rwo or more defendants, service should made on each
defendant.
(i) Where the defendant cannot be found and has no agent
empowered to accept service, service may be made on any adult member
of the family." Before summons can be served upon adult member of the
family of the defendant, certain conditions are required to be satisfied:
61. Tbid. (as inserted by the Amendment Act, 2002 w.e.f. 1 July 2002), O. V, R. 9(4).
62. Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 2002 w.e.f. 1 July 2002), O. V,
R. 90).
63. KMajeed v. Pappa, AR 2004 Mad 457 (DB).
64. Ibid.
65. PT Thomas v. ThomasJacob, AlR 2005 SC 3575.
66. T. Vijendradas v. M. Subramanian, (2007) 8 SCC 751.
67. Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 2002 w.e.f. 11 July 2002), O. V,
R. 9A(2).
68. Ibid (as inserted by the Amendment Act, 2002 w.e.f. 11 July 2002), O. V, R. 9A(4).
69. SalemAdvocate Bar Assn. (1) v. Union of India ,(2005) 6 SCC 344
70. Note the amendment of O. V, R. 15 in the year 1976.
85
(a) At the time of service, the defendant is absent.
(b) There is no likelihood of his being found at residence, within a
reasonable time.
(C) There is no authorised agent to receive summons, on behalf of the
defendant.
ii) In a suit relating to any business against a non-resident defendant, service
may be made on the manager.
(iv) In a suit for immovable property, within the meaning of S. 16, service may
be made on any agent of the defendant in charge of the property, if the
service cannot be made on the defendant in person, and the defendant has
no agent empowered to accept the service. (O. V, Rr. 9 to 15).
6.2.4 Mode of Personal Service

In each of the five cases mentioned above," service is to be made by delivering or
tenderinga copy of the summons to the person proposed to be served, and
obtaining his signature to an acknowledgement of service endorsed on the original
summons. If the acknowledgement is signed, the summons is deemed to be served,
and the service is then called personal or direct service as distinguished form
substituted service. After the service is made, the serving officer should endorse the
time and mode of service on the original summons, the names and addresses of the
person, if any, identifying the person served and witnessing the delivery or tender of
summons and then return it, to the court from which it was issued (O. V, Rr. 10-
16, 18). The serving officer is usually called a bailiff and his duty is to serve the
process of the court, i.e., summons, warrants, etc.
A natural question may arise as to what shall be done, if a person sought to be
served refuses to accept such service. He may try to evade service for motives. There
are also a category of recalcitrant persons who wish to accomplish their objects by
avoiding service of summons. Service of summons is a vital step in any legal
proceedings and if there is any lethargy in ettecting service, the very purpose of filing
the suit may sometimes be frustrated. In a suit for specific performance, you require
an interim injunction restraining the defendant from transferring the subject matter
of the suit because otherwise the suit may become infructuous. Having obtained an
injunction, if one fails to serve the summons and thereby to notify the defendant
that the injunction has been granted, the defendant may conveniently transter the
subject matter and plead that he was not aware of the injunction at all. If such plea is
believed, the suit for specific performance becomes meaningless and infructuous.
Utmost attention has to be given to ensure service of summons.
6.2.5 Substituting Service

The word 'substituted' suggests that it is a substitute or alternative mode of service of
summons. Where it is not possible to serve summons in an ordinary way, it must be
71. See under the heading 'Personal or Direct Service' above.

served by one of the alternative modes provided in the Code, i.e., by aftixing a copy of
it in some conspicuous place in the court house, and also on some conspicuous part of
the house, in which the defendant is known to have last resided, or carried on
business, or personally works for gain, or by publication in the newspaper or by the
beat of drum, etc. However, certain conditions must be satisfied, before summons can
be served by substituted service of summons and one may notice the difference
between the two. Substituted service cannot be claimed as a matter of right. When
ordered, substituted service is as effectual as personal service. It, however, must be
remembered that this is not a regular mode of service and hence, it should not
normally be allowed and can be effected only as a last resort.'4
The substituted service can be resorted to where the defendant refuses to accept
the summons and sign the acknowledgment, and where he successfully avoids
service of summons. One may notice the difference between the two. Without
satisfaction, court cannot direct substituted service. However, in a petition for
divorce by mutual consent where husband was absent on the first date of hearing
and summons revised were not properly served, court though not satisfied that
husband was evading service, directed substituted service of summons."
6.2.5.1 First Mode

This is provided under O. V, R. 17. It can be resorted to when the defendant or his
authorised agent or any of the aforesaid persons upon whom the Code permits
service of summons, refuses to sign acknowledgement. lt can also be restored to
when following conditions are satisfied:
(1) The service officer cannot find the defendant after using all due and
reasonable diligence.
i) The defendant is absent from his residence and there is no
likelihood of his return within a reasonable time.
ii) There is no authorised agent or any other person upon whom the Code
permits service of summons.
In Cohen v. Nursing Dass" the expression 'due and reasonable diligence to find out
the defendant' has been explained:
It is true that you may go to man's house and not find him, but that is not
attempting to find him. You should go to his house, make enquiries and, if
necessary, follow him. You should make enquiries to find out when he is likely
to be at home, and go to the house at a time when he can be found. Before
service like this can be effected it must be shown that proper efforts have been
made to find out when and where the defendant is likely to be found-not as
seems to be done in this country, to go to his house in a perfunctory way, and
72. Basant Singh v. Roman Catholic Misison, (2002) 7 SCC 531

73. Smruti Pahariya v. Sanjay Pahariya, AIR 2009 SC 2840 : (2009) 108 Cut LT 205 (SC) : (2009) 13
SCC 338.
74. Cohen u. Nursing Dass, (1892) 19 Cal. 201.
87
because he has not been found there, to affix a copy of the summons on the
outer door of his house."
If the defendant refuses to sign the knowledgement or if the aforesaid three
conditions are satisfied, summons can be served in the following manner:
() A copy of summons shall be affixed on the outer door or other cons-

picuous part of the house where the defendant ordinarily resides or carries
business or personally works for gain.
() The original summons shall be returned with the report of the serving
officer. Such report must state the circumstances under which a copy was
affixed and the name and address of a person who has identified the house.
The matter does not end here. Affixing of copy and submission of report are not
enough. After report is submitted, the court shall examine the serving officer, either
on affidavit or otherwise and declare that summons is duly served. If the court is not
satisfied with affidavit or oral examination, it may make such other inquiries as may
be deemed fit. Still if the court is not satisfied, it may call for fresh service of
summons. In this mode, the serving ofticer aftixes a copy of summons on his own
decision and later on the court declares that there is a valid or proper service of
summons. The declaration of due service under this rule should be express." The
failure to file affidavit by process server renders the service not one in accordance
with law."6
6.2.5.2 Second Mode

What does one do if defendant successfullyavoids service of summons?
The first mode is available only when defendant refuses to sign acknowledgement.
However, if the defendant keeps out of way so as not to be available at all, and there
are no other persons on whom service can be made under the Code, what can be done
in such cases? The second mode provides an answer. It says that if defendant is
keeping out of the way to avoid service of summons, or if summons cannot be served
in ordinary way for any other reason, summons can be served in following manner:
() A copy of summons may be affixed on a conspicuous part of the court

house.
(i) A copy of summons may also be affixed on conspicuous part of house

where defendant is last known to have resided or carried on business or
personally worked for gain.
ii) It may be ordered to be served in such other manner as the court may
direct. If necessary, the court may direct that a public advertisement may
be issued in a local newspaper having circulation in the area where the
defendant is last known to have resided or carried on business or personally
5. ParasuramaOdayarv. Appadurai Chety c Ors., AIR 1970 Mad 271.

76. AIR 1970 SC 2538.
88
worked for gain. Where summons were served by newspaper publication,
the plea that person sought to be served does not read such newspaper is not
open.
In the second mode, the court's order has to be obtained first and service is made
later on.
Here lies the distinction berween two modes of substitute service. In the former,
service precedes the order, while in the latter, service follows the order. It is as
effective as a personal service. However, as substituted service is not a regular mode
of service, should not be resorted to, unless the serving officer had been unable to
find the defendant despite all due and reasonable diligence. Substituted service
could be ordered only if the defendants were getting out of the way for the purpose
of avoiding service or for any other reason, summons could not be served in the
ordinary way. No such evidence adduced in the instant case. Effort was made only
once when the defendants were not available at their house. Consequently, there was
no ground for ordering substituted service by way of munadi. Accordingly, ex parte
proceedings ordered against the defendants on the basis of substituted service by way
of munadi, cannot be said to be proper.'" Thus, you will find elaborate rules for
service of summons. It shows anxiery of draftsmen to ensureobservance of principles
of natural justice before any matter is adjudicated. Every possible effort ought to be
made to make defendant aware of legal proceedings made against him.
The court has a very wide discretion in directing service of summons in such other
manner as it thinks fit. It may also direct that summons may be served merely by
aftixing a copy at the last known address of the defendant only that such service is
valid even if no copy is affixed on the conspicuous part of the court house.
6.3 INSPECTION OF DOCUMENTS REFERRED TO IN THE PLAINT

[ORDER XI, RULE 15]
After the writ of summons is served on the defendant, he has to file a written statement
of his defence, if so ordered by the court. Before a written statement is drafted on behalf
of the defendant, one must refer to a copy of the plaint very carefully. If any documents
are reterred to in the plaint, of which the detendant has not got copies, a notice should
be given to the plaintiffor his pleader to produce them for inspection (O. XI, R. 15) and
the same should be inspected. The discovery, inspection and production of documents
has been discussed in detail in the next lecture.
6.4 WRITTEN STATEMENT [ORDER VII]

After inspection of the said documents has been done, the defendant's written
statement should be drafted. In drafting the written statement, it is necessary to
77. Sunil Poddar v. Union Bank of India, AIR 2008 SC 1006: (2008) 2 SCC 326.
78. Bondla Ramalingam v. Shiv Barasiddiah, AIR 1979 AP 180.
79. Lilu Ram v. Mangtu Ram,2012 (6) RC.R(Civil) 18.
80. AIR 1969 SC 1552.
refer to the rules contained in O. VI and O. VIII. Order VI is general in nature,
which deals with pleadings, i.e., plaints and written statements. Order VIl deals
exclusively ith plaints, and O. VIIl with written statements. Every party in a case
has a right to file a written statement. 'Even if, the allegation was that fraud was
played while obtaining the signature, then too, no permission to file a fresh
written statement could be given to him as there cannot be rwo written statements
on record."This should be in accordance with natural justice."" A written
statement may be described as a reply of the defendant to the plaint of the
plaintift,and is pleading of the defendant, and may contain newer facts in favour
of the defendant. The defendant has to present the written statement within 30
days of the date of service of summons on him." However, the court may allow
the defendant to file the written statement on any other day, beyond the initial
period of 30 days, which shall not be beyond 90 days from the date of service of
summons, after recording reasons for such permission." The provisions contained
in O. VIIL, R. 1 spell out a disability on the defendant, and do not impose an
embargo on the power of the court to extend the time and as such are directory,
and not mandatory. The court in its discretion has the power to allow the
defendant to file a written statement even after the expiry of the period of 90 days.
However, the time can be extended only in exceptionally hard cases, and not so
frequently and routinely so as to nullify the period fixed by O. VIII, R. 1. Delay in
filing written statement can be condoned in exceptionally hard cases. Proviso to
O. VIII, R.I is directory and use of the word 'shall not by itself is sufficient to
indicate its mandatory nature. There is no provision in the Code for cancelling
or setting aside a written statement already filed, and substituting it with a fresh
one.
A prayer seeking time beyond 90 days ought to be made in writing This
limitation of 90 days for filing the written statement does not apply to suits filed on
the original side of the high court." The Supreme Court was called upon to
consider whether the time-limit of ninety days prescribed by the provision to Rule 1
of Order VIII for filing written statement by the detendant was mandatory or
merely directory. Considering the provision of the code as originally enacted, and to
ensure speedy disposal ofcases but without sacrificing fairness of trial and principles
of natural justice inbuilt in all procedural laws, the court held 'the provision is
directory and permisive and not mandatory and imperative...All the rules of
procedure are the hand maid of justice. The process of justice may be speeded up
81. Sameemal Runwal v. Prakashchandra Kothari, 2011 (2) R.C.R.(Civil) 512

82. Dumtibai v. Paras Finance Co., (2007) 10 SCC 82 (85).
83. Food Corpn of India v. YadavEngineerand Contractor, AIR 1982 SC 1302.
84. Code of Civil Procedure (as substituted by the Amendment Act, 2002 w.e.f. 11 July 2002), O. VII, R. 1.
85. Tbid,proviso to O. VII, R. 8(1).
86. Zolba v. Keshao, AIR 2008 SC 2099: (2008) 11 SCC 769.
87. Thakorbhai H. Parel v. Shree D.G.A. Samaj Seva Sangh, AIR 2009 Guj 155.
88. Salem Advocate Bar Association v. Union of Tndia, AIR 2005 SC 3353; Kailash v. Nankhu, AIR 2005 SC
2441; SK Salim Hazi Abdul Khayunsab v. Kumar (2006) 1 SCC 46.
89. Iridium India Telecom Ld u. Motorola Ine, AIR 2005 SC 514: (2005) 2 SCC 145.
Mulla The Ky to Indian Practice Chapter 6
90
and hurried but the fairness which is a basic element of justice cannot be permitted
to buried."
The defendant in his written statement apart from replying to the plaint, may also
bring his claim for set-off or counter claim, and where the defendant relies on
documents for his defence, claim for set-off or counter claim, and those documents
are within his possession or power, he must file the same along with a copy and list of
documents, at the time of presentation of the written statement."
In case, the document(s) relied upon by the defendant is not within his possession
or power, he must state in whose possession or power the same is, wherever
possible, and a document, which ought to be produced by the defendant, is not
produced, may not be received in evidence on his behalf without the leave of the
court." The documents produced for the cross examination of the plaintiff's witness
or handed over to a witness for refreshing his memory are exempted from the
operation of the aforesaid provision.' It is of utmost importance to remember that as
a general rule every allegation of fact in the plaint, if not denied specifically or by
necessary implication, shall be taken to be admitted by the defendant. It is also no
use denying generally the grounds of liability alleged in the plaint; every allegation of
fact, the truth of which the defendant does not admit, must be dealt with
specifically. Where a defendant denies an allegation of fact in the plaint, he must not
do so evasively, but answer the point of substance. Thus, if it is alleged in the plaint
that the defendant received a certain sum of money it is not sufficient to deny that
he received that sum or any part thereof, or else set out how much he received. In
case of evasive denial and non-specific denial by defendant of the plaintiff's case,
there can be constructive admission. Lastly, the defendant must raise by his
pleading, all matters which show the suit not to be maintainable, as, for instance,
limitation, or want of jurisdiction, and also all matters, which show that the transac-
tion, in respect of which the suit is brought is void or voidable, as for instance,
fraud, misrepresentation, or facts showing illegalicy' (O. VIl, rr 2-5).
If such matters are not raised and do not find their place in the written statement,
the defendant shall not be entitled, as of right, to rely upon them." The defendant
shall also not be entitled to raise a case different from the one pleaded in written
statement, unless there is an amendment.
As regards facts alleged in the plaint, begin the paragraphs of the written
statements as far as possible in one or other of the following forms:
1. Kailashv. Nankhu, (2005) 4 SCC 480

Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 1999), O. VI1, R. 1A(1).
3. Ibid, O. VIII, R. 1A(2).
4. Ibid (as substiruted by the Amendment Act, 2002), O. VIlI, R. 1A(3).
5. Tbid (as inserted by the Amendment Act, 1999), O. VIII, R. 1A(4).
6. Dinesh K Singhania v. Caleutta StockExchangeAssociation Ltd (2005) 2 CHN 601 (DB) (Cal).
7. Indian Contract Act, 1872, Ss. 19, 19A, 23, 24 and 25.
8. MManamuti v. Stase of Karnataka, AIR 1979 SC 1704; K Goundan v. MSP Rajesh, AIR 1966 SC
1861.
9. Attar Singh v. Staie of Uttar Pradesh, AIR 1959 SC 564: 1959 Supp (1) SCC 928.
(a) the defendant denies that... (set out facts);

91
(b) the defendant does not admit that ... (set out facts); [this form is to be used
where the defendant is not in a position either to admit or to deny the facts);
(c) the defendant admits that .. (set out facts), but says that ... (set out
facts);
(d) the defendant submits that the court has no jurisdiction to hear the suit on
the ground that ... (set for the grounds) or that the suit is barred by
article.. of the schedule to the Limitation Act, 1963. ([This form is to be
used when the defence raises a point of law (O. VIIl, R. 2)J.
There is a distinction berween denial of a fact and non-admission of a fact. In the
former, there is a positive assertion that the alleged fact does not exist, while in the
latter, there is merely absence of knowledge, on the part of the defendant regarding
such alleged fact. If facts, not specifically denied are deemed to be admitted, their
proof is dispensed with and the court shall proceed on the footing that such facts are
true, but this is discretionary. Where the defendant does not deny the averments in
the plaint, the same would be deemed to have been admitted under R. 5 of O. VIl
of the Code." In construing pleadings, the proviso [to O. VIII, R. 5(1)], must be
involved only in exceptional circumstances, so as to prevent obvious injustice to a
party, or to relieve him from the results of an accidental slip or omission, and not to
help a parry, who deliberately made vague denials, and thereafter sought to rely
upon them for non-suiting the plaintiff." The court may require any such fact to be
provided otherwise than by admission where it appears to the court that if such facts
are accepted as proved, it will lead to unjust result and where such admission occurs
on account of circumstances which do not inspire confidence, it may be proper to
insist on independent proof of such facts.
6.4.1 Set-off and Counter Claim

Suppose if one has to prepare a written statement for the defendant who has to recover
from or adjust certain sum of money against the claims of the plaintift, how will one
advise him? In all cases where the defendant does not merely defend, but seeks to claim
or recover money or other relief against the plaintiff, there are provisions for set-off and
counter claim which are applicable in different sets of circumstances. There are certain
prescribed conditions and circumstances under which one is allowed to claim set-off or
counter claim or both. We shall examine them one by one.
6.4.1.1 Set-off
Set-off means a claim set against another." lt is a reciprocal acquittal of debts
between two persons."
10. SerhRamdayalJas v. Lami Prasad, (2009) 11 SCC 545 (554): AIR 2009 SC 172.
11. Balraj Taneja v. Sunil Madan, AIR 1999 SC 3381: (1999) 8 SCC 396.
12. Chamber's Tuent first Century Dictionary 1997,P. 1283: ConciseOngordDictionary, 1995, p 1268.
13. Pramada Prasad Mukherjee v. Sagarmal, AIR 1954 Pat 439.
92 Where a written
statement
Chapter 6
contains a claim for set-off, it has the same effect as

plaint in a cross-suit, and the rules relating to written statement by a defendant
4
apply to a written statement in answer to claim of set- off.
Following conditions must be satisfied before the defendant can plead set-off
against the plaintiff:
) The suit of the plaintiff mustbe forrecoveryofmoney.
(i) The caim of the defendant against the plaintiff must be for an ascertained
sum of money.
ii) Such sum must belegallyrecoverable.
Civ) Such sum must not exceed pecuniary limits of jurisdiction of the court.
(v) Both the parties must fill in the same character in set-off as well as suit
cdaim.
(vi) Claim of set-off must be recoverable by the defendant or by all the

defendants, if more than one.
(vii) It must be recoverable from the plaintiff or from all the plaintiffs, if more
than one.
No set-off can be pleaded where suit is not for recovery of money. If the amount is
unascertained, set-off cannot be pleaded, e.g., unliquidated damages. If the claim of
set-off is time-barred, it is nor legally recoverable and hence, set-off can not be
allowed. If it exceeds pecuniary limits, the proper course is to file a separate suit.
However, it is open to the defendant to abandon or relinquish a portion of the claim
inexcessof pecuniary limits and continue set-off within such limits in order to avoid
bringing a separate suit. If the parties do not fill the same character, set-off is not
permissible.
Suppose A is appointed as executor of a Will and B filed a suit to claim a legacy
under the Will againstA, hence A cannot set-off his personal claim against B, because
in the suit claim and claim for set-off, A does not file in the same character. In the
former, he is sued as an executor, while he seeks set-off in his personal capacity.
In case of set-off claimed by the defendant, the plaintiff is entitled to file a written
statement. The court can pass a decree in favour of the defendant and against the
plaintiff. The effect of set-off, if allowed, is either to negative or to reduce the claim
of the plainiff against the defendant. The court fees are payable in respect of set-off.
Some decisions laying down that no court fees are payable in respect of legal set-off
do not lay down good law.
The provisions dealing wich legal ser-off and their application is limited to
ascertained sums of money only. However, the provision regarding set-off is not
exhaustive and courts have allowed the defendant to claim set-off in certain
circumstances de bors under the Code. Such set-off is called equitable set-off. Even
14. Code of Civil Procedure, 1908, O. VIlI, R. 6(3).

unascertained sums of money are also allowed to be claimed by way of set-off on

93
condition that such claim arises out of the same transaction out of which the suit
claim has arisen. The brief points of distinction between legal and equitable set-off
are as follows:
Legal set-off Equitable set-off

(1) It must be for anascertainedsum (1) It may even be for unascertained sum of
of money. money.
(2) It can be claimed as a matter of (2) It is a matter of discretion of the court.
right if conditionsare fulfilled.
(3) It is not necessary that claim for (3) The claim for equitable set-off must have
set-oft should have arisen out of arisen out of the same transaction and it
the same transaction. cannot be allowed if thecross-demandrelates
to a different transaction."
(4) The amount must be legally (4) The amount may not be legally recoverable
recoverable. and may be allowed if there exists a fiduciary
relationship between the parties.
5) Courtfeeispayable. (5) Court fee is payable.
(6) However, even in case of equitable set-off, if at the date of the written
statement, the defendant's claim is time barred, though not barred at the date of the
suit, it will be allowed only to the extent of the plaintiff's claim, and no decree will be
passed for the balance found due to him. But not in the case of legal set-off.
6.4.1.2 Counter Claim

A counter claim is a claim made by a defendant in a suit against a plaintif. It is a
claim, independent of and separable from the plaintiff's claim, enforceable by cross-
action. A counter claim is treated as a cross-suit which must contain all the features
of aregular suit," and must be filed within the limitation period."
The provisions for counter claim were added in 1976. The relief under O. VII,
R. 6A of the Code is discretionary remedy but discretion is to be exercised in
judicious manner." The object was to ensure trial of all issues between the parties at
one time as far as possible. It makes a complete departure from provision for set-off,
and makes it easier for the defendant to make a counter claim. The restrictions
attached to set-off are not applicable to the counter claim. The right to make a
counter claim is in addition to the right to claim set-off and both are not
inconsistent or mutually exclusive. In fact, when the claim against the plaintiff
exceeds the claim against the defendant, it is a combination of both, set-off, to the
extent of plaintiff's claim, and counter claim for the excess over and above such
15. Union of India . KCT & Bros(CoalSales)Ltd., AIR 2004 SC3024.

16. Stroud's Judicial Dictionary, vol. 5, 1986,p. 2388.
17. Sugesen &Co Put Ltd v. Hindustan Machine Tools Ltd, AIR 2004 AP 428.
18. RakeshAhuja u Jagan Nath, (2004) 138 PLR 249.
19. Ballepanda P. Poonacha v. KM. Madapa, (2008) 13 SCC 179 (183-85).
claim. The counter-claim is required to be treated as an independent suit in view of

provisions of O. VIII, R. 6A of the Code.0
The defendant can set up any right or claim arising out of a cause of action
accruing against the plaintiff. However, there is one important condition. Such
cause of action must have arisen before the written statement is submitted or before
the time to submit written statement has expired. t is immaterial whether it has
accrued betore or after the institution of the suit, but no counter claim can be made
to set up any right or claim arising out of cause of action which has accrued after the
time for filing the written statement or delivering the defence has expired." Once
the right to file the written statement has been lost or the time limited for delivery of
defence has expired, then neither the written statement can be filed as a right, nor
counter claim can be allowed to be raised.* It is not necessary that counter claim
must be submitted alongwith the written statement. It can be submitted later on,
provided cause of action has already accrued earlier as aforesaid." However, the
defendant would not be permitted to file a counter claim after closure of plaintiff's
evidence. Court cannot allow the application for amending the written statement
by adding a counter claim after the conclusion of the trial."In a suit for
dissolution of firm, counter-claim was limited to damages caused to the defendant
till filing of WS. After 13 years amendment of WS and enhancement of counter-
claim were sought. The court held that the claim was barred by limitation.0
The counter claim must not exceed the pecuniary limits of the jurisdiction of the
court. It has the same effect as that of a cross-suit, and the rules relating to a written
statement by a defendant apply to a written statement filed in an answer to a
counter claim.
However, the court is empowered to exclude such counter claim upon application
of the plaintiff to that effect. It appears that right or claim set-up ought not to be
disposed of by way of counter claim and independent suit should have been filed.
The counter claim may be excluded, but if it is allowed, it has the effect as if it is a
cross suit. The plaintiff is entitded to file a written statement to such claim. Even if
the suit is withdrawn, dismissed or stayed, counter claim will stand independently
and continue. It is just as if the defendant has become plaintiff and the plaintiff has
become defendant. In a suit for recovery of money the appellant was found to be not
entitled to claim any amount. A counter-claim was lodged by the respondent, which
was allowed by an order of special court. The view expressedby the special court did
not call for any interference in the opinion of the apex court.
20. GayathriWomenWelfareAssociationv. Gowramma, (2011)2 SCC 330 (339).

21. Santilata Tripathy v. KrushnaPriya Pani, 99 (2005) Cut LT 542.
22. Ramesh Chand u Anil Panjwani, AIR 2003 SC 2508: (2003) 7 SCC 350.
23. Mahendra Kumar v. State of Uttar Pradesh, AIR 1987 SC 1395.
24. N Eashwara Prasad v. Margadershi Chit Fund Lud., 2004 AIHC 2134 (AP); Southern Ancillaries Pon.
Ltd. v. SAFoundariesPvt. Lid., AIR 2003 Mad 416.
25. Muni Singh v. Laxmi Rai, 2015(1) R:C.R.(Civil) 158.
26. SouthKonkanDstilleries v. PrabhakarGajanan Naik, AIR 2009 SC 1177 (1181).
27. Naresh Kr. Aggarwala v. Canbank Financial Services Ltd., AIR 2010 SC 2722: (2010) 6 SCC 178.
The distinction berween set-off and counter claim is given below:
Set-off Counter Claim

(1) The claim against the plaintiff (1) The claim against the plaintiff
must be for money-ascertained in need not be monetary claim
case of legal set-off, ascertained alone. Any other right or claim
also in case of equitable set-off. can also be made.
(2) The suit must be for recovery of (2) It is not necessary that suit must
money. be for recovery of money. Even in
other suits without monetary
reliet, counter claim can be made.
3) In equitable set-off, claim must (3) It is not necessary that counter

arise out of same transaction. claim must arise out of the same
transaction. It is an independent
action.
4) The amount must be recoverable (4) The amount must be recoverable
on the date of institution of the on the date of filing of the
suit. written- statement.
A set off or counter claim cannot travel beyond the scope and limit of the suit
with which it is concerned. It cannot bring out something which is completely
foreign to the suit. Both the original suit as well as the counter claim has to be well
within the pecuniary limits of jurisdiction of the court in which the suit has been
instituted. A counter claim exceeding the pecuniary limits of jurisdiction of the
court would be returned.
A counter claim can be entertained against the plaintiff and not against a co-
defendant."" Normally, it is the defendant who may file a counter claim against the
plaintiff. But incidentally and along with the plaintiff, the defendant may also claim
relief against the co-defendants in the suit. But a counterclaim against co-defendants
is not maintainable." Court fee is payable on the counter claim. A counter claim
cannot be entertained when made for the first time at the appellate stage."0
These are valuable provisions to avoid multiplicity of legal proceedings. They

enable parties to agitate their grievances against each other before one forum. They
seek to ensure consistent and coherent trial of suit, they are salutary provisions at a
time when litigations take a long time and deter persons from seeking redressal of
grievances.
28. Udhavdas Tyagi v. Srimurti Radha Krishna Mandir, (2001) 4 SCC 443 (MP).
29. Rohit Singh v. State of Bihar, (2006) 12 SCC 734
30. Southerm Ancillaries Ld. v. SA Foundries Pun. Ltd., AIR 2003 Mad 416.
96| Mulla The Key to Indian Practice Chapter 6
6.4.2 Written Statement in Suit for Specific Performance

The following is the form of a written statement in answer to the plaintiff's suit for
specific performance:
(Title of suit as in Plaint]S
The written statement of the defendantabovenamed
1. The defendant admits the agreement referred to in paral of the plaint, but
says that the sale has to be completed and the purchase-money was to be
paid on 1 May 1914, and that it was agreed that time should be of the
essence of the agreement.
2. The plaintiff was not ready with the purchase-money on the aforesaid day.
On the 5th day of May 1914, the contract was rescinded by agreement
between the plaintiff and the defendant.
3. The defendant denies that the plaintiff tendered Rs 2,00,000 to him as
alleged in para 2 of the plaint or at all [O. VIlI, R. 4].
4. The defendant submits that the plaintiff is not entitled to any of the reliefs
claimed by him, and that the suit should be dismissed with costs.
5. The defendant will rely on the documents a list whereof is hereto annexed
and marked as No 1.
Signature and verification clause as in Plaint]
6.4.3 Non-Compliance with Order for Written Statement

Where a party, from whom a written statement is required by the court, fails to
present it within the time fixed by the court, the court may pronounce judgment
against him, or it may grant him further time, or make such other order as it thinks
fit. It may be added that there are certain courts, in which no written statement is
required at all. Where the written statement is not filed, the civil court has the
jurisdiction to proceed under Order VIII Rule 10 of C.P.C. and pronounce the
judgment - However, the orders are not required to be in mechanical manner.
Further, inspite of admission, court may still require the plaintiff to prove the fact
which has been admitted by the defendant. The Court, at no stage, can act blindly
or mechanically.33
Considering the relevant provisions of O.VIII and O.XX of CPC, the Hon'ble
Suprme Court in Balraj Taneja v. Sunil Madan," stated :
The court has not to act blindly upon the admission of a fact made by the
defendant in his written statement nor should the court proceed to pass
31. See ch. 3.

32. See Indian Contract Act, 1872, s. 55.
33. Gujarat Maritime Board u. G.C. Pandya, 2015 (3) R.C.R.(Civil) 94.
34. Balraj Taneja v. Sunil Madan, (1999) 8 SCC 396.
97
judgment blindly merely because a written statement has not been filed by the
defendant traversing the facts set out by the plaintiff in the plaint filed in the
court.
In a case, especially where the defendant has not filed a written statement,
the court should be a little cautious in proceeding under O.VIII R.10 CPC.
Before passing the judgment against the defendant it must see to it that even
if the facts set out in the plaint are treated to have been admitted, a judgment
could possibly be passed in favour of the plaintiff without requiring him to
prove any fact mentioned in the plaint. It is a matter of the court's
satisfaction and, therefore, only on being satisfied that there is no fact, which
needs to be proved on account of deemed admission; the court can
conveniently pass a judgment against the defendant who has not filed the
written statement. But if the plaint itself indicates that there are disputed
question of fact involved in the case regarding which rwo different versions
are set out in the plaint itseltf, it would not be safe for the court to pass a
judgment without requiring the plaintiff to prove the facts so as to settle the
factual controversy."
"Signing and Verification of pleadings under O.VI R.14 and 15

Order VI Rule 14 CPC provides that every pleading shall be signed by the party and
his pleader (if any) except in a case where a party, by reason of absence or for other
good cause is unable to sign the pleading, it may be signed by any person duly
authorized by him to sign the same or to sue or defend on his behalf. The object of
requiring every pleading to be signed by the party is to prevent, as far as possible,
disputes as to whether a suit was instituted with the plaintiff's knowledge and
authority. "In cases where the plaint contains allegations of fraud which must be
false or true to the knowledge of the plaintif, the defendant can insist on the
plaintiff himself signing the plaint."35
Rule 15 pertains to verification of pleadings at the foot by the party or by one of
the parties pleading or by some other person proved to the satisfaction of the court
to be acquainted with the facts of the case.
"A defect in signature or verification is only an irregularity in procedure and will

not be a ground for rejecting the plaint."36 "Where the allegations in an election
petition under the Representation of the People Act purport to be based on
information and the verification clause reters to the entirety of the petition and the
attached schedule, absence of enumeration of the various paragraphs therein as
having been based on information cannot be considered to be a defect."37
35. The Rajah of Tomkuhi v. Braidwood and Ors.(1887) 9 All. 505.

56. Karam Singh v. Ram Rachhpal Singh, AlIR 1977 H.P. 28.
37. Bhikaji KeshaoJoshi and Anr. v. Brijlal Nandlal Biyani and Ors., AIR 1955 SC 610.
6.5 AMENDMENT OF PLEADING AND PARTICULARS

The pleadings must contain all the material facts in a concised form for
substantiating its case set up by a party so that the opposite party is not taken by
surprise. "It is also equally well settled that no party should be permitted to travel
beyond its pleadings and that all necessary and material facts should be pleaded by
the party in support of the case set up by it. The object and purpose of pleadings is
to enable the adversary party to know the case it has to meet. In order to have a fair
trial it is imperative that the party should state the essential material facts so that the
other party may not be taken by surprise".° After the written statement is filed, one
has to consider, where one is acting for a plaintif, whether the plaint requires any
amendment. An application for leave to amend the pleading may be made at any
stage of the proceedings. Such an application may be made, not only by a plaintiff to
amend the plaint, but also by a defendant to amend the written statement (O. VI,
R. 17) as has been observed by the Supreme Court that admission made in the
written statement can be explained through an amendment."
In the leading case of Cropper v. Smith," the object underlying amendment of

pleadings has been laid down as follow:
"It is a well established principle that the object of courts is to decide the rights
of the parties, and not to punish them for mistakes they make in the conduct
of their cases by deciding otherwise than in accordance with their rights.
Courts do not exist for the sake of discipline, but for the sake of deciding
matters in controversy.
However, no application for amendment will be allowed after the commencement of
trial unless the court is of the opinion that inspite of due diligence, a party could not
have raised the matter before the commencement of the trial." Whether the party
seeking amendment has acted with due diligence depends on the facts and
circumstances of each case. "Due diligence means reasonable diligence, it means
such diligence as a prudent man would exercise in the conduct of his own affairs."
During the intervening period of framing of issues and the date fixed for evidence,
trial does not commence and to an application for amendment of pleadings, the
proviso shall not apply. Preferential rights can ordinarily be claimed within one year
and a plaintiff seeking amendment after 13 years is not maintainable." Before the
amendments of the year 2002 in the Code, leave to amend the pleadings could be
38. Ram Sarup Gupta v. Bhishun Narain Inter College, AIR 1987 SC 1242.
39. Sushil Kr. Jain v. Manoj Kumar, AlR 2009 SC 2544: (2009) 10 SCC 434.
40. Cropper v. Smith, (1884) 29 Ch D 700.
41. Code of Civil Procedure, 1908(as inserted by the Amendment Act, 2002 w.e.f. 1 July 2002), proviso to
0. VI, R. 17. The proviso to O. VI, R. 17 does not apply to pleadingscompleted before the
commencement of the Amendment Acts of 1999 and 2002 i.e. before 1 July, 2002.
42. HP State Civil Supplies Corpn Ltd. v. Palli Banal Co-op Agri ServicesSociety Ltd, AIR 2003 NOC 551
(HP).
43. Chander Kanta Bansal v. Rajinder Singh Anand, (2008) 5 SCC 117 (122).
44. AshutoshChaturvedi v. Prano Devi, AlR 2008 SC 2171 : AIR (1975 Pat 336, AR 1986 Ori 119,
(2004) 3 SCC 392; AIR 1957 SC 357 and 2006 (13) Scale 332 relied on.
99
granted at any stage of the proceedings, before or after the trial and even at the
appellatestage.
Generally, all amendments would be allowed which are necessary for the purpose
of determining the real question in controversy berween the parties to any
proceedings or for correcting any defect or error in any proceedings," provided it
does not substitute a new cause of action," and where the injury caused to the
opposite party can be compensated for by costs. However, negligent or careless may
have been the first omission, and however late, the proposed amendment should be
allowed, if it can be made without injustice to the other side. There is no injustice if
the other side can be compensated by costs, but leave to amend will be refused if the
amendment would convert the suit or the defence into another of a different and
inconsistent character. Thus, if A sued B to recover certain property as the adopted
son of C, he will nor be allowed at the hearing of the suit to amend his plaint by
alleging that if the court finds that the adoption is not valid, he is entitled to recover
the property as the heir of D.
Amendments are allowed to avoid uncalled for multiplicity of litigation."" An
amendment which clears confusion in the pleadings," brings subsequent facts on
record, would be allowed. However, no amendment would be allowed which
amounts to defeating a legal right accruing to the opposite party on account of lapse
oftime. f amendmentsoughtdoesnotrequireanyfurtherevidenceorinconsistent
evidence such type of amendment giving clarification in pleading must be
allowed."S1
The condition which must be satisfied before the amendment can be allowed by
the court is whether such amendment is necessary for the determination of the real
question in controversy. If that condition is not satisfied, the amendment should nor
be allowed. On the other hand, if the amendment is necessary to decide the "real
controversy" between the parties, the amendment should be allowed even though
the court may think that the party seeking the amendment will not be able to prove
the amended plea. This is the basic test, which governs the courts unchartered
powers of amendment of pleadings. No amendment should be allowed when it does
not satisty this cardinal test.
The merits of the averments sought to be incorporated through amendment are

not to be adjudged at the stage of consideration of prayer for amendment." In
dealing with a prayer for amendment the courts normally prefer substance to form
45. Bakshish Singh v. Prithi Pal Singh, (1995) Supp 3 SCC 577; Arundhati Mishra v. Sri Ram Chatritra
Pandey, (1994) 2 SCC 29.
Ka Kumaru.DipenderKau, (2005)9 SCC304.
47. Bollepanda P. Poonacha v. K.M. Madapa, (2008) 13 SCC 179 (183-185).
48. DondapatNiarayananReddy . DuggR
i eddy(,2001)8 SCC115.
49. Punjab National Bank v. Indian Bank, AIR 2003 SC 2284.
50. Prem Bakshi v. Dharam Dev, AIR 2002 SC 559: (2002) 2 SCC 2.
S1. Yakub Ali v. Rubi,2011 (1) R.C.R.(Civil) 129
risng Prasad v. SteelProducts Ltd. ,AIR 1953 Cal. 15
53. Sampash Kumar u. Ayakannu, AIR 2002 SC 3369: (2002) 7 SCC 559.
and techniques and the interest of justice is one of the most important
considerations. If a party is entitled to amend its pleadings, the right of the party to
amend cannot be defeated just because a wrong section or a wrong provision has
been quoted in the amendment petition."
A delay in making an application for an amendment may be a ground for doub-

ling the genuineness of the amendment, but not a good ground for retusing the
application. O. VI, R 17 of the Code speaks of amendment of pleadings whereas
O. VII, R. 9 of the Code provides for subsequent pleadings by a defendant. The
distinction berween the two provisions is widest. Whereas by reason of the former
unless a contrary intention is expressed by the court, any amendment carried out in
the pleadings shall relate back to the date of filing original thereof, subsequent
pleadings stand on different footings." It is the duty of the court to decide as to
whether the amendment of WS after the trial has commenced is necessary to decide
the real dispute between the parties. Only if such a condition is fulfilled the
amendment should be allowed. The proviso to R 17 of O. VI of the Code restricts
the power of the court and puts an embargo on exercise of its jurisdiction. Relief
sought for by the defendants in a subsequent petition under Order 6 Rule 17 Civil
Procedure Code was elaborately dealt with on the rwo earlier petitions filed by the
defendant-appellants under Order 6 Rule 16 and Order 8 Rule 9 Civil Procedure
Code. Subsequent petition labeling the petition under Order 6 Rule 17 Civil
Procedure Code is wholly misconceived and was not entertainable. Filing of
subsequent application for the some relief is an abuse of the process of the court.
Petitioner filed application for amendment of written statement on the ground

that he has obtained a licence for setting up a housing colony during pendency of
suit. Application filed after about 4-3/4 years after issuance of licence and afterissues
have been framed. No cogent explanation forth coming on record why application
for amendment was not filed before commencement of trial. As per proviso to Order
6 Rule 17, no application for amendment shall be allowed after trial has
commenced, unless court comes to conclusion that in spite of due diligence party
could not have raised the matter before commencement of trial. Therefore
application cannot legally be allowed.
A party seeking amendment is required to give cogent reasons than mere

inadvertence for not taking the said plea earlier. The principles applicable to the
amendment of the plaint are equally applicable to amendments of the written
S4. Venture Global Enginering v. Sayam Computer Services Lad, AIR 2010 SC 3371 (3374) : (2010) 8
SCC 660.
55. Estralla Rubber v. Dass Estate, (2001) 8 SCC 97.
6. PAJayalakshmiv. HSaradha,(2009) 14 SCC 528 (528).
57. Vidyabati v. Padmalatha, AIR 2009 SC 1433 (1436), (2009) 2 SCC 409.
S8. S. Malla Reddy v. Ms. Future Builders Co-operative Housing Society, 2013 (9) SCC 349
59. RP.S Associatesv. Om Parkash @ Hari Singh, 2012 (5) R.C.R.(Civil) 109
60. Gurdial Singh v. Raj Kumar Aneja, AIR 2002 SC 1003: (2002) 2 SCC 445.
101
statementbut not with the same rigour and the courts are more generous in
allowing the amendment of the written statement.
Case law on this subject abounds with insta es where courts have taken extre-
mely liberal views in consideration of grant of amendments. As a general rule,
amendments are allowed unless they cause such injustice to other party which
cannot be compensated in terms of money or they are mala fide or they take away
vested rights accrued to other party. Suppose A has fileda suit for recovery of money
against B, and later on seeks to raise a new claim which is barred on the date of
application for amendment, can such amendment be allowed? Does the court have
power to allow such amendment and if yes, what is the effect? The court
undoubtedly has the power to allow such amendment and if allowed, the amended
claim or new claim shall be deemed to have been made on the date of suit and,
therefore, will be saved from being time barred." It is a power which can save a
claim by giving, so to speak, retrospective effect as if it was originally included on
the date of institution of the suit. In appropriatecases, the court may order that the
amendment would take eftect from the date an application was made or the
amendment would take effect from the date an application was made or the
amendment was allowed and not from the date when the plaint or written statement
was presented." Such power would be sparingly exercised and as a general rule,
amendments which have the effect of taking away vested rights will not be allowed.
Some of the important rules for drafting the client's pleading, ie., plaint or
written statement have already been covered.
Application of O.VI R.17 to otherproceedings

The provisions of Rule 17 are equally applicable to other proceedings such as execution
proceedings, insolvency proceedings, arbitration proceedings, election matters,
proceedings under the Land Acquisition Act, claim petitions etc. Even where provisions
of the code are not applicable, courts and tribunals evolve their own procedure in
conformity with the principles of natural justice, equity and goodconscience.
6.5.1 Scandalous Allegations in Pleadings

One should not introduce any matter in any pleading which may be unnecessary or
scandalous or which may tend to embarrass or delay the fair trial of the suit. If there
is any such matter in the opponent's pleadings, one may apply to the court to have it
struck out. In a suit to enforce a compromise of a former action, it is embarrassing if
the plaintiff sets out in the plaint the original disputes; such allegations will theretore
be struck out (O. VI, R. 16).
61. BKNPillai v. P Pilai, AIR 2000 SC 614.

62. Leach Co. u. Jardine Skimmers. AlR 1957 SC 357.
63. Sampath Kumar v. Ayyakannu ,(2002) 7 SCC S59
64. Abdul Jabar v. Staseof Jammu and Kashmir, AIR 1957 SC 280; Vishwavicyalaya v. Rajkishore, AIR 1977
SC 615:(1977) 1 SCC 279.
65. Seechs.3 and).
66. See in this chapter, under the heading 'Written Statement.
In Sathi Vijay Kumar v. Tota Singh, the Supreme Court stated:
It cannot be overlooked that normally, a court cannot direct as to how they

should prepare their pleadings. If the parties have not offended the rules of
pleadings by making averments or raising arguable issues, the court would not
striking out pleadings. The power to strike out pleadings is extraordinary in
nature and must be exercised by the court sparingly and with extreme care,
caution and circumspection."
6.5.2 Particulars
In all cases in which a party relies on any misrepresentation, fraud, breach of trust,
willful default or undue influence, etc; particulars (with dates and items ifnecessary)
should be stated in the pleading. Thus, it is not sufficient for a party to make general
allegations of fraud in his pleading. He ought to set out the particulars of the alleged
fraud. If no particulars are given, the other party may apply to the court for an order
directing the party pleading to give the particulars. If the particulars given are not
sufficiently specific, the court may order further and better particulars (O. VI, R. 4).
It is only when one knows the particulars that one knows the specific case at the
hearing. When acting for a defendant, first get the particulars, and then draft the
written statement.
In Bishundeo Narain v. SeogeniRai, the Supreme Court observed:
"Now if there is one rule which is better established than any other, it is that in
cases of fraud, undue influence and coercion, the parties pleading it must set
forth full particulars and the case can only be decided on the particulars as laid.
There can be no departure from them in evidence."
The courts have taken a strict view of the requirement to give particulars. If general
averments are made without giving particulars, it is held that such averments are
insufficient even to amount to averments of fraud or other misconduct. In absence
of particulars, the court will not treat the case as containing averments of such
nature at al. No evidence will be allowed to be adduced when particulars are not
pleaded. Moreover, when such particulars are pleaded it is necessary to confine to
such particulars only and the case can be decided on such particulars. No other
evidence will be permitted to be adduced.
67. Sathi Vijay Kumar v. Tota Singh. (2006) 13 SCC 353.

68. Bishundeo Narain v. Seoger Rai, AIR 1951 SC 280.
69. Read the Code of Civil Procedure, 1908, O. IV, O. V, O. VI, O. VII, R. 10-11; O. VIII and O. XI,
R. 15.
DocUMENTS AND WITNESSES
CHAPTER
1
7.1 DISCOVERY AND INSPECTION [ORDER XI]
The purpose of discovery, inspection and production of documents is to enable a

party to a suit to obtain necessary information regarding the material facts consti-
tuting the case of the opposite party and to support their own case eicher directly by
obtaining admissions of the opposite party or indirectly by impeaching the case of
the opponent. There can be a discovery of document for the purposes of securing, as
far as possible, a disclosure of all material documents in the possession or power of
the opposite party and to put an end to unnecessary and protracted inquiry as to the
material documents in the possession or under the control of opposite party.' Grant
or refusal of discovery of documents is at the discretion of the court, which is
exercised keeping in mind the expediency, justness and the relevancy of the
documents to the matter in question. The objection as to discovery of any
document must be in atfidavit in prescribed form,' with such variations as circum-
stances may require.
Every party to a suit is entitled to know the nature of his opponent's case, so that
he may know beforehand what case he has to meet at the hearing. He is also entitled
to obtainadmissions from his opponent to facilitate the proof of his own case.
However, he is not entitled to know the evidence of his opponent's case or the
names of his witness, for if this were allowed, an unscrupulous party might tamper
with his opponent's witnesses, and might manufacture evidence in contradiction and
so shape his case as to defeat justice. It is different, however, as to documentary
evidence. A party to a suit is entitled to know beforehand what documents his
opponent has in his possession or power and to inspect them, whether they relate to
his own case or to his opponent's case.
1. Remeshuar Narayan Singh u. Rikhanath Koeri, AlR 1920 Pat 131 (DB).
2. Sasanagoudav. SBAmarkhed, AR 1992 SC1163:1992 (1 U 775 (SC).
3. Code of Civil Procedure, 1908, Form No. 15, Appendix , Sch. I.
4. Ibid., O. XI, R. 13.
It is clear from what has been stated above that A is bound, if B so requires it, to
make discovery of, i.e., to disclose:
(i) all material facts which constitute As case (but no evidentiary facts
necessary to prove his case), and all facts necessary to support Bs case;
(i) all documents in As possession or power relating to matters in question in
the suit, even if they are against his case.
In case (), B obtains the information by administering interrogatories to his
opponent, A, which A is bound to answer by affidavit. In case (i), A is bound to
disclose the documents by affidavit; such affidavit is called the aftidavit of
documents. Section 139 of the Code lays down that an affidavit is a statement in
writing, made on oath before an officer of the court authorized to administer oaths.
A person making an affidavit is called a deponent; he deposes to the facts contained
in the affidavit. These two modes of discovery shall be dealt with separately.
7.1.1 Interrogatories
There can be discovery of facts by interrogatories. Interrogatories reter to a set of
series of questions drawn up for the purpose of being propounded to a party,
witnesses or other person, having some information of interest in a case, and if the
information relates to documents in possession of the other party, the disclosure of
the documents is called discovery of documents.
A plaintiff may administer interrogatories to the defendant and a defendant may

administer interrogatories to the plaintif. There are, however, cases in which one
defendant may administer interrogatories to another defendant, as where the
plaintiff's case is that if one of them is not liable, the other is. Interrogatories can be
administered only by leave of the court. As a general rule no such leave is granted to
a plaintiff until after the written statement is filed or the time to file it has expired,
and no such leave is granted to the defendant until after he has filed his written
statement. The interrogatories must be in a prescribed form" with such variations as
circumstances may require. The party to whom interrogatories are delivered is
bound to answer them by affidavit to be filed within 10 days after service of the
interrogatories. The affidavit in answer to interrogatories must be in prescribed
form with such variations as circumstances may require. In this context, O. XI, Rr.
1-11, 22 is relevant and states that if the person finds any of the interrogatories to be
scandalous or irrelevant or not exhibited bona fide for the purposes of the suit, he
may apply to the court within seven days after service thereof to strike them out on
that ground under O. XI, R. 7. However he is not bound to do so; he may take the
objection in the affidavit in answer, and refuse to answer them as is allowed under
O. XI, R. 6. They can be objected also on the ground of privilege or that the matter
5. Black's Law Dictionary, sixth edn.

6. Code of Civil Procedure, 1908, Sch. 1, Appendix 'C, Form No. 2.
7. 1bia., 0. XI, R. 4.
8. Code of Civil Procedure, 1908, Sch. I, Appendix 'C, Form No. 2.
9. Tbid., 0. XI, R. 9.
Chapter 7 Documents and Witnesses 105
inquired into are not sufficiently material at that stage or any other ground. The
party interrogating may then, if so advised, apply to the court for an order requiring
the party served to answer the interrogatories not answered by him. The court will
then consider the propriety of the objection taken by the party served, and if it
disallows the objection to any interrogatory, it may order the party served to answer
the interrogatory by a further affidavit. Any party may, at the trial of a suit, use in
evidence any one or more of the answers of the opposite party to interrogatories
without putting in the others.
Interrogatories must relate directly to the matters in issue in the suit. The
interrogatories in the nature of a fishing enquiry cannot be allowed." Interrogatories
would not be disallowed merely because the opposite partry has filed certain
documents which give answer to the interrogatories. ' Interrogatories which do not
relate directly to the matters in issue are deemed to be irrelevant, norwithstanding
that they might be admissible on the oral cross-examination of a witness. Thus as
per S. 146 of the Indian Evidence Act, 1872, questions which are put only to test the
credibility of a person will not be allowed, although of course they may be asked in
cross-examination. At the same time, one must be very cautious as to what
interrogatories should be exhibited to the opposite party. Delivering interrogatories
to the opposite party gives him an opportunity of shaping his answers in the manner
most favourable to him. The answers as a rule will be framed by his pleader, and that
is an advantage which he does not possess while he is under cross-examination in the
witness box. Therefore, only those interrogatories must be administered, the answers
to which are absolutely necessary to enable one to determine the line of action. The
rest must be lett for cross-examination.
The power to serve interrogatories would be liberally used whenever it can shorten
litigation and serve the interest of justice, within certain limits and with considerable
care and caution,'" and shall be refused if scandalous or are abuse of process of the
court. The proper time for considering the question what particular questions the
party interrogated should be compelled to answer, is after the partry interrogated has
made his affidavit in answer (O. XI, R. 8).
One defendant may administer interrogatories to another defendant, provided

there is some right to be adjudicated in the action between them, as the words
opposite party in O. X1, R. 1 are not restricted solely to the relationship of plaintiff
and defendant. The proceedings referred to in S. 141 of the code include all
"miscellaneous applications" and is not restricted only to original proceedings. The
provisions of the code are applicable as far as possible to all proceedings and for that
purpose application under O. XI, R. 1 cannor be an exception. Since the order
granting or rejecting prayer for interrogatories is neither a 'decree nor an 'appellable
order, no appeal lies against it.
10. AFLDevelopersPut Lid v. Veena Trivedi, AIR 2000 Del 354.

11. Sharda Dhir v. AshokKumar Makhija, AIR 2003 Del 288:99 (2002) DLT 350..
12. P Balan v. Central Bank of India, AIR 2000 Ker 24:(2001) 103 Comp Cas 746 (Ker).
13. Adarsh Palace Pvt. Ltd. v. Somanath Dwibedi, AIR 2010 (NOC) 490 (DB) : (2009) 108 CLT 74
(77): 2010 AIHC (NOC) 676 (Ori-DB) : 2009 (Supp.) OLR 902.
106|
7.1.1.1 Form ofinterrogatories
Title of the suit as in plaint
Interrogatories on behalf of the above ned plaintiff (or defendant) for the
examination of the abovenamed defendant (or plaintiff):
(1) Did not, etc.
(2) Has not, etc.
(3) Was not, etc.
7.1.1.2 Form of the Affidavit in Answer

Title ofthe suit
The answer of the abovenamed defendant (or plaintiff) to the interrogatories for his
examination by the plaintiff (or defendant).
In answer to the said interrogatories, I the abovenamed defendant (or plaintif),
make oath and say as follows:
(1) As to interrogatory No 1, Isay that...

(2) As to interrogatory No 2, I say that..
(3) I object to answer the interrogatory numbered 3 on the ground that...
(stategrounds ofobjections).
Sworn at Bombay on the
8th day of May 1914.

CD
Defendant
Before me
XY
Commissioner
7.1.2 Affidavit of Documents

The provisions regarding the discovery of documents, enable a party to compel his
opponent to disclose the documents in his power or possession, relating to any mater
in question in a suit, in order to put an end to unnecessary and protracted inquiry as
to the material documents in possession or under control of the opposite party.
Any parry to a suit may apply to the court for an order directing any other party to
make his affidavit of documents. Even a defendant may apply for an order directing
a co-defendant to make his affidavit of documents, where issues are joined berween
them, as where a claim in the alternative is made against them. As a general rule, no
such order is made on the application of a plaintiff until after the written statement
is filed or the time to file it has expired, as no such order is made on the application
of a defendant until after he has filed his written statement. The party required to
Chapter 7 Documents and Witmesses
107
make an affidavit of documents is bound to disclose all documents which are or have
been in his possession or power, relating to any matter in question in the suit.
However, discovery shall not be ordered if the court is of the opinion that it is not
necessary either for a fair disposal of the suit or for saving costs, or if the document is
altogether irrelevant or immaterial or where the prayer has been made with a view to
delaying the proceedings." Before ordering discovery or inspection, the court is also
to satisfy itself that the documents are in existence." If there be any documents
which he objects to produce for the inspection of the opposite party, he must specify
them in a separate list and state the ground of his objection. After the affidavit has
been filed and a copy thereof furnished to his adversary, the adversary is entitled to
inspection of such of the documents as the party filing the affidavit does not object
to produce. As regards the last mentioned documents, it is for the court to decide
whether they are privileged from inspection. If they are privileged, no order for
inspection is made. The denial of inspection of privileged documents originates
from the well known maxim soluspopuli est suprema lex (public welfare is the highest
law).The following is a list of such documents.
) Documents which ofthemselvesevidenceexclusivelythe party's own case

or title and contain nothing supporting or tending to support the
adversary's case or title. Thus if A sues B tor the recovery of immovable
property, B is not bound to produce for his inspection the title-deeds of
the property which B may have in his possession, provided they constitute
evidence exclusively of B's title to the property, and contain nothing
supporting his title to the property.
(i) Confidential communications berween a party and his legal adviser, eg,
professional advice given by the legal adviser, entries in his diary of
communication berween him and his clients, et.
ii) Public official documents, the production whereof would be injurious to
publicinterests.
The following is a form of an affidavit of documents:
[Title ofthe suitl

I, the abovenamed defendant, CD, make oath and say as follows:
(1) I have in my possession or power the documents relating to the matters in

question in this suit set forth in the first and second parts of the first
schedule hereto.
(2) I object to produce the said documents set forth in the second part of the
first schedule hereto [stategrounds of objection].
14. Central Bank of India v. Shivam Udyog, AIR 1995 SC 711:(1995) 2 SCC 74.
15. Bhagwani Devi Mohata Hospital v. ADJ Raigarh, AIR 2005 Raj 274: 2005 (2) WLC 90.
16. Indian Evidence Act, 1872, ss. 126,129.
17. Tbid., ss. 123-24.
(3) I have had, but have not now, in my possession or power the documents
relating to the matters in question in this suit set forth in the second
schedule hereto.
(4) The last-mentioned documents were last in my possession or power on

state when and what has become of them, and in whosepossession they now
are.
(5) According to the best of my knowledge, information and belief I have not
now, and never had, in my possession, custody or power or in the
possession, custody or power of my pleader or agent, or in the possession,
custody or power of any other person on my behalf, any account, book of
account, voucher, receipt, letter, memorandum, paper or writing, or any
copy of, or extract from any such document whatsoever, relating to the
matters in
question in this suit or any of them, or wherein any entry has been made
relative to such matters or any of them, other than and except the
documents set forth in the said first and second schedules hereto.
Sworn at Bombay, etc.
In para 5, A states on oath that he has no other documents in his possession or

power, however, B has reasons to suspect or believe that he has other documents in
his possession relating to the matters in issue in the suit. The question would be as
to whether B is entitled to an order directing A to make a further affidavit of
documents and to disclose therein the documents which B says he must have in his
possession. The answer is no, since as a general rule, As adversary's oath is
conclusive. A reading of O. XI, Rr. 12-19 makes it clear that the only cases in which
the court will make an order for a further affidavit are:
)when it appears (1) from the affidavit itself, or (2) from the
documents disclosed therein, or (3) from the pleadings, that he has other
documents in his possession;
i) where A has misconceived his case so that the court is particularly certain
that if he had acted on a proper view of the law he would have disclosed
further documents as in the case of British Association of Glass Bortle
Manufacturers v. Nettelford.*
It is not necessary that documents sought to be discovered must be
admissible in evidence. It is sufticient if they are relevant and relate to any matter in
question. If they can throw any light on the case, it is adequate to order discovery. It
is also not necessary that a party seeking discovery must specify the documents. It is
quite likely that he may not be aware about the details and he may come to know
only after the affidavit is filed."" It is not incumbent upon applicant to file affidavit
along with application for discovery of documents. Also there is no need to specify
18. British Association ofGlass Bottle Manufacturer v. Nertleford, (1912) AC 709.

19. ML Sethi v. RP Kapur, AIR 1972 SC 2379: (1972) 2 SCC 427.
Chapter 7 Documents and Witnesses
109
document sought to be produced. Every document throwing light on the case is
relevant though inadmissible.20
7.1.3 Premature Discovery

Where the right to the discovery or the inspection sought depends on
the determination of any issue in the suit, the court may try that issue as a preli-
minary issue betore deciding upon the right to the discovery or inspection. Thus if a
person is sued for an account of profits made by him by an alleged breach of trust,
and if he denies that he was a trustee for the plaintiff, the court may try the issue as
to whether the defendant was a trustee, before directing him to produce his books
for the plaintiff's inspection.
7.1.4 Inspection
Where a party knows that the other party is in possession of relevant documents,
then an application can be made for their production, without first asking for
discovery of documents. The primary object of Order XI, Rule 15-19 is the
exchange of documents between parties to the suit even before settlement of issues
so as to curtail the procedural delay.
Where in the pleadings, affidavit or list of documents annexed with the pleadings
of a party, or a reference is made to any document, the other party may give notice
to produce such documents for the inspection of the party giving notice and to
permit takingcopies of it.""
It is a valuable right given to a litigant to inspect original documents produced
before the court or otherwise relevant to the subject-matter of inquiry. The
documents are required to be divided into three broad categories for the purpose of
understanding the right of inspection available under the Code with regard to them:
) Documentsreferredto inpleadingsoraffidavits.
(i) Documents entered in the list annexed to pleadings.
Cii) Other documents.
Every party to a suit is entitled to inspect the documents falling within the first two
categories as a matter of right. The other party cannot refuse inspection in respect of
such documents. It is also entitled to take copies of such documents. If the other
party does not offer inspection, it shall nor be enticled to put the same in evidence in
that suit unless he can establish that it relates to his own title or that there was any
other sufficient cause for not complying with the notice.
For documents falling within the third category, inspection cannot be obtained as
a matter of right. An application is required to be made showing relevance of the
20. Narendra Gole v. Ram Krishna Sharma, AIR 2011 (NOC) 229 (MP-DB); W.P. No. 5857 of 2010, dt.
13-10-2010.
21. Sri Niwas v. Election Tribunal of Lucknow, AIR 1955 All 251 (DB).
22. Code of Civil Procedure, 1908, O. XI, R. 15.
documents of which inspection is sought and that they are in power or possession of
other party. Inspection will be granted if the court is satisfied about relevance and
their necessity or utility in the fair disposal of the case.
The notice to produce the documents for inspection must be in the prescribed
form with such variations as the circumstances may require" and must be given at
or before the settlement of issues." This stipulation in O. XI, R. 15, is nothing but
directory and does not mean that inspection cannot be allowed after the settlement
ofissues.0
The party to whom notice to produce the documents is given, within 10 days of
the receipt of notice has to notify to the other party giving notice of the date, time
and place where the document can be inspected and such time shall not be beyond
three days from the date of delivery of such notice. Such notice has to be in the
prescribed Code of Civil Procedure 1908, Sch I, Appendix 'C', form no 8.
A question that would arise here would be as to at what stage can inspection be
obtained. Normally, a party is entitled to ask for inspection after pleadings are over
on both sides, but the Code does not impose any restrictions in this regard and
allows inspection at any time. Inspection can be obtained even before the written
statement is filed. It rests within the discretionary powers of the court. In one case,
however, the Bombay High Court refused to allow production and inspection of
documents before the written statement was filed."" During the course of inspection,
a party is entitled to make notes or even take out photocopies of the same."
7.1.5 Non-compliance with Order for Discovery or Inspection

The party not complying with the notice to produce the documents will not be able
to put any such documents in evidence, on his behalf in such suit."
The consequences of non-compliance with the order to answer interrogatories, or

for discovery or inspection of documents havebeen dealt with under O. XI, R. 21 of
the Code, which provides that if the non-compliance of such an order is on the part
of the plaintiff, his suit is liable to be dismissed and if the non-compliance of such
order is on the part of the defendant, his defence is liable to be struck off. The party
seeking discovery, interrogation or inspection may give an application which may be
decided after hearing the defaulting party. The power to dismiss the suit or strike
out the defence can be exercised either suo mou or upon application of any party.
Where the defendant does not care to comply with the orders of the court and in a
23. Ibid., Sch. I, Appendix C, Form No. 7.

24. Ibid., 0. XI, R. 16.
25. Tbid. (as amended by the Amendment Act, 1999, w.e.f. 1 July 2002), O. XI, R. 15.
26. SalemAdvocate Bar Association v. Union of India, AIR 2005 SC 3353: (2005) 6 SCC 344.
27. Indian Overseas Bank v. Shreekrishna Woolen Mills Put. Ltd, AIR 1988 Bom 343: (1987) 89 Bom LR
510.
28. Jagatbhai Punjabhai Palkhiwala v. Vikrambhai Punjabhai Palkhiwala, AlR 1985 Guj 112 : (1984) 2
GLR 1242.
29. Code of Civil Procedure, 1908, O. XI, R. 15.
111
way ignores the orders, his defence can be struck off." However, the defence would
not be struck ott merely because the defendant has not responded to the notice to
produce the documents. The power must be exercised only where the defaulting
party fails to attend the hearing or is guilty of prolonged or inordinate or inexcusable
delay which may cause substantial or serious prejudice to the opposite party." The
sine qua non tor exercising the power order R. 21 is failure to answer the
interrogatories, order of discovery or inspection of documents. The suit cannot be
dismissed under O. XI, R. 21 for non-compliance of R. 14 which is with respect to
production of documents." Where a suit has been dismissed under R. 21, the
plaintiff shall be precluded from bringing a fresh suit on the same cause of action.
A drastic power is conferred under this rule and it is quite essential that it must be
sparingly used. A suit or defence cannot be lightly thrown out. The default must be
willful. There must be obstinacy or contumacy in disregarding the order of the
court. Such power must be exercised as a matter of last resort when faced with
willful and deliberate disregard of the order of the court"
7.2 NOTICE TO ADMIT FACTS OR DocUMENTS [ORDER XI]

Facts admitted by the parties to a suitt need not be proved. Admission in the
pleadings or judicial admissions made by the parties, at or before the hearing of the
case, stand on a higher footing than evidentiary admissions and are binding on the
party making them and constitute waiver of proof Admission of a document
means admission of facts contained in the document.
Admissions are not conclusive and a gratuitous or erroneous admission can be

withdrawn. Further, admissions are to be taken in entirety.
Admissions need not be made expressly in the pleadings and the court can proceed
even on constructive admissions. Admissions can be de hors the pleadings and need
not necessarily be contained in the pleadings. And such admissions can be oral or in
writing.
Order XII, Rr. 2-5 of the Code provide that after discovery is made and
inspection is taken, the next step to be taken is to call upon the adversary, by notice
in writing, to admit within seven days of the date of service of the notice, the
genuineness of documents which one wants to use at the hearing, and to admit facts
constituting evidence of the case. If no such admission is made by the adversary
where it ought to have been made, he will be liable to pay the costs of proving the
30. D Ram Mohan Rao v. Sridevi Hotels Pvt. Ld. (MIs), AIR 2003 NOC 345 (AP).
31. ShardammaKaveri v. SharadG adau, AR 2005 Kant 445: 2005 (6) Kar 1 284.
32. Babbar Sewing Machine Co u. Trilok Nath Mahajan, AIR 1978 SC 1436: 1978 4 SCC 188.
33. Archdioceseof Bhopal v. Hasan Kabir, 2009 (4) MP LJ 530 (533, 535) (DB).
34. Babbar Sewing Machine Co u. Trilok Nath Mahajan, AlR 1978 SC 1436.
5. NagindasRamdasv. Dalpatramlecharam,AIR 1974SC 471: (1974)1SCC 242.
36. Sitaram Morilal Kalal v. SantanuPrasadJaishankerBhatt, AIR 1966 SC 1697: (1966) 3 SCR 527.
37. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.t. 1 July, 2002), O.
XII, R. 2. Mohd. Yunus u. Deviani, (2010) 4 MP LJ 24 (28) (DB).
documents and facts. By virtue of O. XII, R. 3A, the court may, at any stage of the
proceedings, without any notice to admit documents being given by the other pary,
of its own motion call upon a party to admit a document and record whether that
party admits, refuses or neglects to admit that document. If the documents are not
denied specifically or by necessary implication or stated to be not admitted, they are
deemed to be admitted unless the court insists upon their formal proof
independently. Therefore, every notice for admission of documents must be
carefully replied and denied or not admitted, failing which the court may treat them
as admitted, dispensing with their formal proof. A notice in writing calling upon the
other party to admit facts can also be served at any time not later than nine days
before the hearing, and if the other partry refuses or neglects to admit such facts
within six days of service of such notice, the costs of proving those facs shall be paid
by the party so refusing or neglecting. An admission made in pursuance of the notice
shall be only for the purposes of that particular suit (O. XII, R. 4).
Where admissions of facts are made, the court is empowered to make order or
give judgment having due regard to admissions made. Such admissions may be oral
or written. For such order or judgment, it is not necessary to wait for determination
of other disputed matters. In one case, the Delhi High Court gave judgment in
respect of a portion of an award admitted by the other party holding that this
provision is applicable to applications under the Arbitration Act, 1940. The object
behind the rule is laudable. The court should be able to make an order at least where
there are no disputes between the parties. It need not wait till other disputed matters
are resolved or adjudicated. However, judgment on admissions cannot be claimed as
a matter of right and depends on the discretion of the court, which must be satisfied
that the admission relied upon is dear, definite and unequivocal." A party, on the
admission of other party can press for judgment as a matter of legal right. However,
the court always retains its discretion in the matter of pronouncing judgment."
Admission should betakenas whole

It is well settled that an admission must be taken as whole or not at all.
In Utam Singh Duggal & Co. Ld. v. United Bank of India," it wasobserved that
"where one portion of the claim was admitted and the other portion was denied, and
both the portions were severable, the plaintiff could ask for a judgment on the
portion admitted by the defendant."
Whether there is a clear admission or not, cannor be decided on the basis of

judicial precedents. The decision of the question depends on the facts of the case."
If there is any admission by the defendant or an admission can be inferred from the
38. Bharat Overseas Construction (P) Lid v. University Teachers o-op. Howsing Sociery Lid., AIR 1991 Del
20:39 (1989) DLT 446.
39. Razia Begum v. Anwar Begum, AIR 1958 SC 886.
40. Karam Kapahi v. Lal ChandPC Trust, (2010) 4 SCC 753: AIR 2010 SC 2077.
41. Uttam SinghDuggal o Co. Ltd. v. United Bank of India, (2000) 7 SCC 120.
42. JeevanDieses Electricals Ltd.vu Jasbir Singh Chadha, AIR 2010 SC 1890 (1893) : (2010) 6 SCC 601:
(2010) 4 LW 114: (2010) 5 MLJ 311 (SC).
Chapter 7 Documens and Witnesses 113
facts and circumstances of the case without any dispute, such admissions can be
acted upon in order to expedite and dispose of the matter." It is a well settled
principle of law that a counsel can make not only concession on a question of law
but also on facts which would be binding on the parties. A decree can be passed on
the basis of such concession in terms of O. XII, R. 6 of the code." Judgment on
admissions can be passed by the court on its own motion without an application
made by a party or on the application of any party. The judgment-on admission
can be passed even after issues have been framed," and even at the stage of final
arguments. "The power to give judgment under this rule is discretionary and
enabling in nature and the party cannot claim it as of right. The Court is also not
bound to pass a judgment upon admission. If the court is of the opinion that it is
not sate to pass a judgment on admission, or that a case involves questions which
cannot be appropriately dealt and decided on the basis of admission, it may, in the
exercise of its discretion, retuse to pass a judgment and may insist upon clear proof
of even admitted facs.' *"The provision under O. XII, R. 6 of the code is not
mandatory still the purpose for which such a provision has been inserted should be
taken into consideration. Order 12 Rule 6 confers wide discretion on court to pass
judgment either at stage of suit on basis of admission of facts made in pleadings or
otherwise. But court shall later on decide other questions which arise for
consideration in suit. Provisions of Order 12 Rule 6 are not mandatory rather
discretionary. While exercising the power of passing Judgment on admission made
in pleading or otherwise Court must keep matter pending for adjudication so far as
other issues are concerned.
Conclusiveness of admission
In Nagubai Ammal v. B. Shama Rao "An admission is not conclusive as to the
truth of the matter stated therein. It is only a piece of evidence; the weight to be
attached to such admission should depend upon circumstances under which it was
made. It can be shown to be erroneous or untrue."
7.3 SUMMONING OF WITNESSES [ORDER XVi]

Rule I of O. 16 provides for presenting a list of witnesses proposed to be called by a
party and obtaining summonses to such persons on or before the day appointed by
the court, which must not be later than 15 days after the date on which issues are
settled. If the party failed to obtain the summonses through court for attendance of
witnesses, they are at liberty to have the witness brought without the assistance of
43. Chananjit Lal Mehra v. Kamal Saroj Mahajan, AIR 2005 SC 2765 : (2005) 11 SCC 279.
44. Saroj Anand v. Prahlad Rai Anand, (2009) 15 SCC 505 (512): 2009 (4)Scale 474.
45. Rajiv Sharma v. Rajiv Gupta, AIR 2004 Delhi 248 (DB); Dinesh K Singhania v. CaleuttaStockExchange
AssociationLtd., (2005) 2 CHN 601l (Cal-DB).
46. P'arivaS
r eva
Sansthanv. VenaKalra,AlR2000Del 349: 86(2000) DLT 817. t
47. RaziaBegumu.SahebzadiAnwarBegum, AlR 1958 SC 886
1 10 2e1s6)
48. Maluwa Strips P. Lid. v. Jyoti Lrd., (2009) 2 SCC 426 (431): AIR 2009 SC 1581.
49. RaveeshChand Jain v. Raj Rani Jain ,2015 (2) R.C.R(Civil) 118
50. Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593.
the court under R. 1A of O. XVI. Nonetheless, when they seek the assistance of the
court, they are enjoined to give reasons as to why they have not filed the application
within the time preseribed under R. 1 of O. XVI.
In order to issue a summons to a witness to adduce evidence or to produce

documents in court, the parties to the suit must present a list of witnesses of whom
they propose to call as witnesses, not later than 15 days from the date of settlement
of issues. The court may, in appropriate cases, condone the delay and receive the list
even after 15 days." To ensure he attendance of a witness, either party may apply
to the court for issuing summons upon them; stating in such application the
purpose for which the witness is proposed to be summoned. Summons shall be
issued by the court only in respect of the witness whose names appear in the list of
witnesses. The court, in its discretion, may permit a party to summon any witness,
other than those whose names appear in the list of witnesses on sufficient cause for
omission of name of such witness, shown. A person may be summoned to produce a
document without being summoned to give evidence and any person summoned
merely to produce a document will be deemed to have complied with the summons
if he causes the document required to be produced in the court.
A person is entitled to apply to the court for a witness-summons (or subpoena as it

is called), at any time after the institution of the suit. It does not matter at what
stage of the suit it is applied for. It may be applied for even after the hearing has
commenced and the court has no power of refusal to issue it. The only case in which
it may be refused is when the application is not made bona fide, where the person
knows that the oppoSite party 1s not going to come into court on sentimental
grounds, and yet proposes to call the opposite party as his own witness to put
pressure upon him. To issue the summons in such a case would amount to an abuse
of the process of the court and the court may refuse it under its inherent powers as
specified under S. 151.
Before the summons is granted, a sum of money should be paid into court
sufficient to defray the travelling and other expenses of the person summoned and
his subsistence allowance for one day. The sum so paid into court is to be tendered
to the person summoned at the time of serving the summons. If the person
summoned is detained for a longer period than one day, a further sum sufficient to
defray the expenses of his detention has to be paid into court, and the same is then
to be tendered to him.
Order XVI clearly lays down that a summons to a witness is to be served as nearly
as may be in the same manner, as a summons to a defendant. If the witness fails to
attend, the court may issue a proclamation requiring him to attend and may at the
same time issue a warrant for his arrest and make an order for the attachment of his
property. If the witness then appears and satisfies the court that there was sufficient
cause for his non-appearance, the court may order the property to be released from
51. LalithaJ. Rai v. Aithapparai, AIR 1995 SC 1984: (1995) 4 SCC 244.
52. NBalraju v. G Vidyadhar, AIR 2004 AP 516.
115
attachment. However if he does not appear or appears but fails to satisfy the court,
the court may impose upon him a fine not exceeding Rs 500, and may order the
property attached to be sold for the payment of the amount of the fine. "The above
provisions enact the machinery for procuring attendance of witnesses. It is the duty
of the court to entorce attendance of witnesses summoned by the parties, if necessary
by coercive process. These provisions are essential and have been enacted with a
purposeful eye, because the consenting parties in a suit usually have no control over
witnesses who may be required to give evidence. It should not, however be
forgotten that a party runs a serious risk by invoking coercive machinery for
compelling his witnesses to remain present. It is quite likely that on accou t ofssuch
process being issued, he may turn hostile and may not support the case of the party
at whose instance he is called as witness. Since the provisions of Rule 10 are penal in
nature, the procedure laid down therein must be strictly followed."The provision
under R. 1l of O. XVI of the code is subject to the provisions of sub-rule (3) of R. 1
so before proceeding to examine any witnesses who might have been brought by a
party for the purpose, the leave of the court may be necessary. This by itself would
not mean that R. 1A is in derogation to sub-rule (3) of R. 1 of the code. However
0. XVII, R. 1A states that if it is managed to bring in witnesses, there is no necessity
that they must appear in response to summons. They can volunteer to give evidence
at the behest of either party. This applies to the production of documents by the
witness also.
In case where witnesses are not likely to come on their own and summons are
required to be issued, a list of witnesses for evidence or production of documents
must be provided within 15 days from the date of settlement of issues. One will not
be entitled to examine a witness whose name is not shown in the list unless sufficient
cause for the omission of his name is shown. It is also to be remembered that when
an application is made for summons, it must specifically state the purpose for which
summons is required to be issued. If it is for giving evidence, it must state so. If it is
for production of documents only, it must be clarified. The idea seems to be that the
person to whom summons has to be issued must know for what purpose he is being
summoned to the court.
As regards service of summons, now there is an additional mode of service made
available by R. 7A. If : party applies, the court can hand over or deliver such
summons for service to that party. This is called direct service. The party is not
required to pay any process fees in such a case. If the witness refuses to accept or to
ign acknowledgment or if it cannot beserved directly, the summons thereafter may
be served through the court machinery as if it were a summons to the detendant. If
the witness is served, the party must report to the court accordingly. If such witness
does not remain present, the court shall examine the party before taking any action
against the witness.
53. National Rice co-Dal Mills v. FoodCorpn. Of India, AIR 1972 P&H 163.
54. DuwarkaPrasad Bai v. Rajkunwar Bai, AlR 1976 MP 214.
55. Ashok Sharma u. Ram Adhar. (2009) 11 SCC 47 (50): (2009) 2 SCR 9.
It is not expected that the name of a witness be given in the list if he is going to
attend voluntarily. The list is required only for those witnesses for whom summons
must be issued. If there is any delay or omission, it may be condoned on sufficient
cause being shown. The court must adopt a liberal approach on the ground that
procedural laws are handmaidens of justice and they must not be construed in a
narrow or pedantic manner."
7.4 PRODUCTION OF DOCUMENTS [ORDER XI]

The parties are required to produce the documentary evidence in their power and
possession, i.e., in actual physical possession or control, on or before settlement of
issues. There are some rules which require production of certain documents along
with pleadings (O. VIIR. 14; O. VIII, R. 1A). All original documents not produced
earlier must be produced before settlement of issues. Such production is a matter of
right and no permission is required to be obtained, but once that stage is crossed, the
production of documentspasses into the domain of discretion of court and can be
done only on permission. While granting permission, court may impose costs. It
may even refuse permission if late production is likely to lead to irreparable injustice
to other side. Where the documents were in possession of the plaintiff even on the
date of filing of the suit, but were not filed at the appropriate stage, they cannot be
admitted at later stage unless cogent reasons are given." At the same time; omission
to mention the documents in the plaint or subsequent incidental or supplemental
pleadings, does not affect the power of the court to grant leave to produce the
documents at a later stage. "The court has power to receive any document at a later
stage if thegenuinenessof a document is beyond doubt and it is relevant or material
to decide the real issue in controversy. It is a well settled principle of law that
where a eivil proceeding as well as criminal proceeding is pending, the latter should
begiven primacy.
The court may adopt a liberal approach and late production, normally allowed, is
attended to with costs and further opportunity is given to the other side to adduce
further evidence, if necessary. There are two exceptions to this rule. When
documents are tendered for cross-examination of witness of the other side or
refreshing the memory of a witness, this rule does not apply and such production is
allowed at any stage and this may be understood in the light of O. XI, O. XII, O.
XVI of the Code.
56. MangeRam v. Brij Mohan, AIR 1983 SC 925: (1983) 4 SCC 36.
57. BennettColeman & CoLud (MIs) v Janaki Ballav Patnaik, ATR 1989 Ori 145.
58. Hardyal Singh v. Kamlinder Kaur, 2002 AIHC 2171 (Del) :97 (2002) DLT 868.
59. Bada Bodiah v. Bada Lingaswamy, 2003 AlHC 1285 (AP): 2003 (1) ALD 790.
60. Billa Jagan Mohan v. Billa Sanjeeva ,(1994) 4 SCC 659
61. Lakshmi v. Chinnammal, AlR 2009 SC 2352.
62. Madan Gopal Kanodia u. Mamraj Maniram & Ors, AIR 1976 SC 461: (1977) 1 SCC 669.
HEARING AND DISPoSAL
CHAPTERO 8
1Rf 11
8.1 FIRST HEARING AND SETTLEMENT OF ISSUES [ORDERX;

ORDER XII, RULES 1-2; ORDERS XI-XV]
The suit is now ready tor hearing. In a large majority of courts outside the
presidency towns, the hearing is split into two parts, namelys
(1) First hearing at which issues are settled; and

(2) hearing when evidence is taken of the parties and their witnesses.
The term first hearing of a suit has not been defined in the Code. It is the day on
which the court applies its mind and goes into the pleadings of the parties in order
to understand their contention.' In cases in which no issue need be framed, e.g.
small cause suit, the first hearing would be the day on which the trial starts.
It has already been mentioned that every pleading should contain a statement of
the material facts on which the party pleading, relies for his claim or defence.
Framing of issues is an important stage at which scope of the trial is determined by
laying the path on which the trial shall proceed excluding departures and diversions
therefrom." The correct decision of civil lis largely depends on correct framing of
issues, correctly determining the real points in controversy which needs to be
decided.
An issue means a point in question at the conclusion of pleadings berween

contending parties in an action. Issues arise when a material proposition of fact or
law in affirmed by one party and denied or not admitted by the other.
1. Arjun Khiamal Makhijani v. Jamnadas Tuliani, AIR 1989 SC 1599; Siraj Ahmed Siddiqui v. Prem Nath
Kapoor, AIR 1993 SC 2525.
2. Sangyam Singh v. Election Tribunal, AIR 1955 SC 425.
3. See ch. 3.
4. Makhan Lal Bangal v. Manas Bhunia, AIR 2001 SC 490.
S. New Shorter Oxford English Dictionary, 1993.
118 Mulla The Ky to Indian Practice Chapter8
"Issues are the backbone of a suit. They are also the lamp-post which enlightens
the parties to the proceedings, the trial court and even the appellate court- as to what
is the controversy, what is evidence and where lies the way to truth and justice. ,6
The duty of framing proper issues rests with the judge himself, however, the
parties and their consents are bound to asist the court in the process of framing of
issues. It does not mean that the failure to take point in framing issues, shall
amount to abandonment of issues or that such party shall not have a right to cross-
examine. The question of maintainability of suit by itself does not give rise to a
triable issue. The High Court is competent to dispose of the suit on preliminary
issues,as contemplated in O. XIV, R. 1, which may include the issues with regard to
maintainability of suit.
Order XIV, R. 1(2) states that material propositions are those propositions of law
or fact which a plaintiff must allege in order to show a right to sue, or a defendant
must allege in order to constitute his defence. Issues are of rwo kinds, namely (1)
issues of fact; and (2) issues of law. However, there may be issues of mixed law and
fact. Every material proposition affirmed by one parry and denied by the other shall
form a subject of a distinct issue. No issues should be raised on subsidiary matters of
fact. The object of framing issues is to direct the attention of parties to the principal
question on which they are at variance. What one has to prove at the hearing is the
existence or non-existence of facts in issue, these have to be proved by facts, which
are called evidentiary facts. These evidentiary facts must be relevant facts, i.e., they
must be relevant to the facts in issue. One should, at the hearing of the suit, direct
the attention to the facts in issue, in other words, the issues and the evidence which
lead to prove either the existence or non-existence of the facts in issue, must be
relevant to the facts in issue. Not every fact which has a bearing of some sort on the
fact in issue is a relevant fact. There are relevant facts in Ss. 5 to 55 of the Indian
Evidence Act, 1872.
At the first hearing of the suit, the parties have to:
) appear in court either in person or by a pleader who is able to answer all

material questions relating to the suit, or to send some person on his
behalf who is able to answer such questions;
(i) produce in court all documents on which he intends to rely and which
have nor already been filed in court, when the plaint was presented as
required by O. XIII, R. 1; O. VII, Rr. 14-18; O. VIII, R. 1A. No
document which is not produced at the first hearing will be received in
evidence at any subsequent stage of the proceedings, unless good cause is
shown.
6. Stateof Gujarat v.JaipalsinghJaswantsinghEngg o Contractors, (1994) Guj. L.R. 258

7. Makhan Lal Bangal v. Manas Bhunia, AIR 2001 SC 490.
8. Ajay Mohan v. H.N. Rai, (2008) 2 SCC 507: AIR 2008 SC 804.
9. Abdul Gafur v. State of Uttarakhand, (2008) 10 SCC 97 (103) : 2008 (11) Scale 263.
Chapter 8 Hearing and Disposal
119
At the first hearing of the suit, after reading the plaint and the written statement,
the answers to interrogatories (if any), and such documents as it thinks proper, the
Court has to:
(i) ascertain from the party or his pleader which material facts in the pleading
of either party are admitted or denied by the other, and for that purpose,
to examine, if necessary, the parties or any person on their behalf who is
able to answer material questions relating to the suit according to O. XI
and it any party refused or was unable to answer any material question, the
hearing must be postponed for not more than seven days with directions
to the party to appear in person" and after so doing:
() direct the parties to opr for one of the modes for settlement of dispute
outside the court, namely, through arbitration, conciliation, settlement
through Lok Adalat, and mediation;"
(ii) frame and record the issues on which decision of the case appears to
depend;
(iv) at once pronounce the judgment, if it appears that the parties are not at
issues on any question of law or fact in accordance with O. XV, R. 1. It
will thus be seen that the principal object of the first hearing is to settle
issues, and that issues are framed from the following materials:
(a) pleadings;
(b) answers to interrogatories;
() documents produced by the parties; and
(d) statements made on oath by the parties or by any persons present on
their behalf, and statements made by the pleaders of the parties (O.
XIV, R. 3).
Where it appears to the court that issues cannot be framed properly without
examination of any person or inspection of any document not produced on record,
it may order examination of the person or documents as the case may be.
Issues which do not arise from pleadings or other aforesaid materials should not be
framed.2
The court has the power under O. XIV, Rr. 1(5) and 5 of the Code at any time
before passing the decree to amend the issues, to frame additional issues, and to
strike out issues that appear to it to be wrongly framed. One has to be careful at the
time when issues are framed since the burden of proof is sometimes reflected in the
way in which they are framed. No important issues should be omitted to be raised
because it may vitiate the trial, but not always. Where the parties well understood
the two cases opposed to each other and led all the evidence in support of their
10. Code Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1 July 2002), O. X,
R.4(1).
11. Tbid. (as inserted by the Amendment Act, 1999 w.e.f. 1 July 2002), s. 89.
12. Site Ram v. Radha Bai, AIR 1950 PC 68.
contentions, the absence of an issue shall not be fatal to the case and there shall be
no miscarriage of justice." A denovo trial may be ordered only if the omission to
frame a particular issue affects the disposal of the case on merits," eg., dismissal of
suit being barred by limitation without framing appropriate issue regarding
limitation." Necessary issues ought to be framed by the trial court in order to
6
determine rights of the parties.
8.1.1 Whether the Suit can be Decided on a Single Issue Leaving

Other Issues Undecided
There may be situations where the whole suit may be disposed of on a particular
issue or ground and where there may not be any necessity to frame and decide
other issues. Here the question that arises is, suppose the suit is barred by res
judicata or the court has no jurisdiction over the subject-matter, is it possible to
dispose of the suit on this issue alone? Here O. XIV, R. 2 provides an answer. A
civil court can dispose of a suit on preliminary issues. The issues of res judicata
constructive res judicata as also the maintainability of the suit can be adjudicated
upon as preliminary issues. And when facts are admitted such issues shall be
decided as preliminary issues." Ordinarily, and as a general rule, the court must
pronounce judgment on all issues. Once issues have been framed, court has to
proceed to record evidence and pronounce judgments on all issues. The dismissal
of suit as not maintainable, after framing issues, is wrong procedure and is illegal."
It is not permissible to decide a case on a preliminary issue even when it is possible
to do so unless certain conditions mentioned in O. XIV, R. 2 are satisfied. The
conditions are:
) The court must be of the opinion that a case or any part thereof may be
disposed of on any particular issue.
(i) It must be an issue of law. If it is an issue of fact or mixed issue of fact and
law, it cannot be decided as a preliminary issue.
(Gii) The issue of law must relate to the jurisdiction of the court or bar created
by any law to the suit.
If the aforesaid conditions are satisfied, the court may frame the preliminary issue
and decide the suit and postpone the settlement of other issues to a later stage, if and
when required. It the suit is required to be decided after decision of preliminary
issue, other issues may be framed. If not, the suit shall be dismissed. Issue relating to
13. SayedaAkhtar v. Abdul Ahad, AIR 2003 SC 2985 : (2003) 7 SCC 52.
14. KawalKishan u. Dina Nath, AIR 1993 SC 881:(1992) 2 SCC 51.
15. See Pratima Sinha v. Shashi Kumar Naraina Sinha, (2004) 13 SCC 599.
16. NafeesaUsmani u. Anwar Jahan, 2009 AIHC (NOC) 913 (MP) (DB); W.P. No. 8987 of 2007. Dt.
28.1.2009, see also Ajit Gaitonde v. Ezilda E. C. Pinto, 2009 AIHC 3292 (Bom-DB) : 2011 (1) RCR
(Civil) 477.
17. Abdul Rahman v. Prasony Bai, AlR 2003 SC 718: (2003) 1 SCC 488. .
18. R Gopalkrishna v. K.S. Corpn., 2008 (5) Kar LJ 327 (331-332) (DB) : AIR 2008 Kant 77: ILR 2008
KAR 2034.
Chapter8 Hearing and Disposal 121
sufticiency of court fees is not mere issue of law, hence cannot be decided as
preliminary issue."19
Only issues of laws pertaining to jurisdiction or bar created by any law to the suit
are capable of being framed as preliminary issues. Issues of fact, mixed issues of fact
and law and issues of law other than the aforesaid cannot be tried as preliminary
issues. In view of provisions under O. XIV, R. 2, evidence must be accepted on all
issues. Where jurisdiction becomes a mixed question of fact and law, it cannot be
decided as a preliminary issue." Issues regarding territorial jurisdiction and
limitation can also be tried as preliminary issues even if they depend upon factual
evidence.
Order 14 Rule 2 of CPC confers power upon the Court to pronounce judgment
on all the issues but where issues both of law and fact arise in the same suit and the
Court is of the opinion that the case or any part thereof may be disposed of on the
issue of law, it may try that issue first if that issue relates to the jurisdiction of the
Court or a bar to the suit created by any law. There is a mandate to the Court that
notwithstanding that a case may be disposed of on a preliminary issue, the Court has
to pronounce judgment on all the issues. The only exception to this is contained in
sub-rule (2). This sub-rule relaxes the mandate to a limited extent by conferring
discretion upon the Court that if the Court is of opinion that the case or any part
thereof may be disposed of "on an issue of law only", it may try that issue first The
exercise of this discretion is further limited to the contingency that the issue to be so
tried must relate to the jurisdiction of the Court or a bar to the suit created by a law
in force.21
The power to dispose of the suit on preliminary issues is, however, discretionary.
Even if the aforesaid conditions are fulfilled, the court may refuse to decide the
matter on preliminary issues in exercise of its discretion." The allegation of fraud
cannot be heard and decided as a preliminary issue. Ordinarily suits and proceedings
should be decided by rendering finding on all theissues.
The following will be the eight issues in the suit for specific performance in the
plaint and the written statement given in this book:"
) Whether the sale was not to be completed and the purchase money to be
paid on 1 May 1914 as alleged in para (1) of the written statement?
(i) Whether it was not agreed between the plaintiff and the
defendant that time should be the essence of the contract as alleged in the
said paragraph?
19. Moola Vijaya Bhaskar u. Moola S.S. Ravi Prakash, AIR 2009 AP 150, see also Nawab Shagafath Ali Khan
. NawabImdadHahBahadur,(2009) 5 SCC162(178).
20. SaradekantaPanda v. PoonamPadhi, (2010) (1) DMC 728(731) (DB) : AIR 2009 Ori 145
21. Foreshore Co-operative Housing Society Limited v. Praveen D. Desai (Dead), 2015 (2) R.C.R.(Civil) 42.
22. Sunni Central Wagf Board Ors v. Gopal Singh Vishrad o Ors, AIR 1991 All 89.
25. Renubala Nama v. Renubala Das, (2009) 5 Gau LR 120 (124-125) : AIR 2010 Gau 8; see also Ramesh
Chandra Shankla v. Vikram Cement, AIR 2009 SC 713.
24. See chs 3 and 6.
ii) Whether the plaintiff was ready and willing to perform his part of the
contract on the aforesaid date as alleged in para 3 of the plaint?
(iv) Whether the agreement was not rescinded by mutual consent on the fifth
day of May 1914 as alleged in para 2 of the written statement?
(v)Whether the plaintiff tendered Rs 2,00,000 as alleged in para 2 of the
plaint?
(vi) Whether in any event, the plaintiff is entitled to specific performance of
the said agreement?
(vii) Whether the plaintiff is entitled to anydamages, and if so, what?
(vii) General issue (i.e., whether the plaintiff is entitled to any relief at all.)
It is pertinent to note that there is no issue as to the factum of the agreement
berween the parties, as the agreement has been admitted by the defendant in para 1
of his written statement.
It is essential to mention here that certain new provisions relating to adjournments
were introduced by way of amendments in 1976 and 1999 w.e.f. 1 July 2002. They
have a far-reaching impact upon the suits and their conduct by the court.
As a general rule, at any stage, the court is empowered to adjourn the matter if
sufficient cause is shown. Such order of adjournment may also be attended by order
of costs to be paid by one party to other or to a witness. Adjournment cannot be
claimed as a matter of right. The courts have wide discretion and, in practice,
adjournments are granted liberally. In ascertaining whether a party has reasonable
ground for adjournment, the court should not travel beyond the date on which
adjournment is sought for. Merely because a pary had taken many adjournments
earlier is no ground for refusal of adjournment. While considering a prayer for
adjournment, the court shall keep in mind the legislative intent to restrict grant of
adjournments." However, where hearing of suit has commenced, it must be
continued from day-to-day till all witnesses in attendance are examined. There can
be no adjournment in such cases, unless there are exceptional reasons which must be
recorded in writing. This rule is statutory. It is always desirable to take evidence as:
whole continuously. It helps the court in having better appreciation and a cohesive
picture of the entire trial in the mind of the judge. A piecemeal trial may lead to
complications and an imperfect understanding of the case as a whole.
The fact that the pleader is engaged in another court shall not be a ground for
adjournment. When a counsel who is ready in the pre-lunch session, seeks
accommodation in the post-lunch session on the ground of a sudden illness or
physical ailment, the court cannot refuse a short accommodation and dismiss the
appeal on the ground that the client was cantankerous and unreasonable before the
Lok Adalat. The rwo issues have no relation to each other and such dismissal can
25. Seech. 6.
26. State Bank of India v. Chandra Govindji (2000) 8 SCC 532
27. SalemAdvocasesBar Asociation n. Union of India, AlR 2005 SC 3353: (2005) 6 SCC 344.
Chapter 8 Hearing and Disposal 123
only be attributed to prejudice." Similarly, boycott of court by advocates and
strike by advocates is not sufficient ground for adjournment" If the pleader is ill or
unable to conduct proceedings on account of any reason, matter cannot be
adjourned unless the court is satisfied that the party applying for adjournment could
not have engaged another pleader in time. "Adjournments have grown like cancer
corroding the entire body of justice delivery system. It is sad, but true, that the
litigants seek and the courts grant adjournments at the drop of hat. Though
provisions of Order 17 Rule of C.P.C. are not mandatory, but adjournments
beyond three may be granted for justifiable cause. Justifiable cause means a cause
which is not only sufficient cause as contemplated under Order 17 Rule 1 of C.P.C.,
but unavoidable and sort of compelling necessity like sudden illness of the litigant or
the witness or the lawyer; death in the family of any one of them; natural calamity
like floods, carthquake, etc. in the area where any of these persons reside; an accident
involving the litigant or the witness or the lawyer on way to the Court and such like
cause. The list is only illustrative and not exhaustive.
However, the total number of adjournments, granted to a party, during the

hearing of the suit shall not be more than three and the court shall impose costs
occasioned by the adjournment." However, absence of lawyer or his. non-
availability because of professional work in other court or elsewhere or on the
ground of strike call or the change of a lawyer or the continuousillness of the lawyer
or similar grounds will not justify more than three adjournments to a party during
the hearing of the suit.* The proviso to O XVII, R. 1 comes into play only if a
party seeks adjournment after having availed the same for more than three times
during hearing of the suit." The provision limiting adjournments cannot be held to
6
be ultra-vires or unconstitutional."
If the witness is present, but the party or his pleader is not ready to examine or
cross-examine, the court may close the stage of evidence against that party.
If the party remains absent on the day on which the matter is fixed for hearing, the
court may proceed under O. IX or pass such other order as it may deem fit. Where
neither the plaintiff nor the witnesses are present, the suit has to be dismissed under
O. XVI, R. 2 and not under O. XVI, R. 3." However, if the absent partry has
already led or adduced substantial evidence, the court may proceed as if it is present
and decide the matter on merits in accordance with O. XVII, R. 2.
28. B.P. Moiddeen Sevamandir v. A.M. Kutry Hassan (2009) 2 SCC 198 (205): 2008 (16) S cale 364.
29. AssociaedEngineeringIndustriesu. Inder Mohan Kohli, AIR 2000 Del 90.
30. Ramon Services Pvt Lid v. Subhash Kapoor, AIR 2001 SC 207 (2001) SCC (L&S) 152.
51. ShivCotexv. 1irgun Auto Plast P. Ld., 2011 (9) SCC 678.
32. Code of Civil Procedure, 1908 (as substituted by the Amendment Act, 1999 w.e.f. 1 July 2002), O.
XVII, R. 1(1),provisSO.
33. Ibid, 0. XVII, R. 1(2).
34. ShivCorexv. TirgunAutoPlastP. Ld., 2011 () SCC678.
35. Mayadevi Kukreja u. Meera Agarwal, 2009 (3) MP LJ 688: AIR 2010 MP 27 (DB).
36. SalemAdvocate BarAssn. (1) v. Union of India, (2005) 6 SCC 374.
37. Mohan Das v. Ghrisia Bai, AIR 2002 SC 2436.
124 Mulla The Key to Indian Practice Chapter8
If the matter is adjourned at the instance of a party for his evidence or attendance
of witnesses or any other specific purpose and if that party fails to do so, the court
may proceed to decide the suit if parties are present or it may proceed under the
aforesaid R. 2, if both the parties or any of them are not present.
Where the party fails to appear on the date and no substantial evidence is adduced
by it, the court cannot proceed on merits treating that party as present. The court
must proceed under O. XVII, R. 2 and if a decree is passed, it must be regarded as
ex-parte and it is liable to be set aside under O. IX, R. 13. Ifa suit is decreed or
dismissed under O. XVII, R. 2 coupled with O. IX, R. 6 or O. IX, R. 8, the remedy
is an application under O. IX, R. 9 or O. IX, R. 13, as the case may be. And if it is
under O. XVII, R. 3 the remedy is an appeal or review, as the decision is on the
merits in the presence of the parties. At the same time, if the suit is decreed or
dismissed by proceeding under the explanation to O. XVII, R. 2, the decision will
be on merits and the remedy will be an appeal. However, if the order does not
indicate as to what evidence was evaluated and/or whether the merits of the case
were tested, an application under O. IX, R. 13 would lie."
8.2 HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

[ORDER xVII]
There is no such thing as a first hearing in courts in the Presidency towns. The
following is the practice followed in the high courts at the hearing of suits:
(a) Plaintitf's counsel reads pleadings, i.e., plaint and written statement.
(b) Defendant's counsel raises issues.
( Plaintiff's counsel opens the case by stating briefly the facts of the case and
giving an outline of the evidence he intends to call to prove the issues as to
which the burden of proof lies on him.
(d) Then follows the examination, cross-cxamination and re-examination of
the plaintif and his witness.
(e) Plaintiff's counsel then closes his case by saying I close my case, or this is
my case.
( Defendanť'scounselopens thedefence by stating shortly what thedefence
is and what evidenced he proposes to call.
gThen follows the examination,crosS-examination,and re-examination of

the defendant and his witnesses.
(h) Defendant's counsel then closes his case, and addresses the court generally
on the whole case.
38. PrakashChander Manchanda & Anor u. Janki Manchanda, AIR 1987 SC 42: (1986) 4 SCC 699.
39. BJanakiramiah Chethy v. AK Partha Sarthi, AIR 2003 SC 3527: 2003 (3) Scale 660.
Chapter8 Hearing and Disposal
125
) Plaintiff's counsel then replies generally on the whole case, and thus
finishes the hearing of the suit. This procedure is in accordance with O.
XVII, Rr. 1,2 of theCode.
Trial in Open Court
It is well settled that, the Courts shall hear, all cases brought before it, whether civil,
criminal or others, in public unless expressly barred under the law.
In Scott v. Scot," it was observed that, "in the darkness of secrecy, sinister interest
and evil in every shape have full swing. Only in proportion as publicity has place can
any of the checks applicable to judicial injustice operate. Where there is no
publicity, there is no justice. Publicity is the very soul of justice. It is the keenest
spur to extortion and surest of all guards against improbiry. It keeps the judge
himself while trying under trial in the sense that the security of securities is
publicity."
Trial in Camera
In Kehar Singh v. State (Delbi Admin.)" it was observed that, "indeed the principle
that all cases must be tried in public is really and ultimately based on the view that
all cases must be tried in public is really and ultimately based on the view that it is
such public trial of cases that assists the fair and impartial administration of justice.
The administration of justice is thus the primary object of the work done in courts;
and so, if there is a conflict berween the claims of the administration of justice itself
andthose of public trial, public trial must yield to the administration of justice."
Order XVII, R. 1 states that at trial, the plaintiff has the right to begin. It is an
enabling provision entitling the plaintiff with the right to begin. The plaintiff's
counsel states his case and calls evidence in support, and then addresses the court
generally on the whole case. The defendant's counsel then replies generally on the
whole case. If it is proved after the pleadings are read and issues raised, that the
burden of proving the whole case lies on the defendant, the defendant's counsel has
to begin, i.e., he has to state the defendant's case and call evidence in support of his
case. Thus, if A sues B for money lent and advanced, and if B admits the loan but
contends that the loan has been repaid, the burden of proof lies on B, the defendant.
Similarly if A sues B for damages for breach of contract, and if B admits the
contract, but denies liability on the ground that it is a wagering transaction, the
burden of proof lies on B.
Where there are several issues, the burden of proving some of which lies on the
plaintiff, and some on the defendant, the procedure laid down in O. XVIII, R. 3, is
to be followed. That procedure may be explained by an illustration. A sues B for
damages for breach ofa contract. B denies the contract, and contends that, if there
was any contract at all, it was one by way of wage, and that he is not, theretore
liable. Here there are two issues, (i) as to the factum of the contract; and (i) as to
40. Scott v. Scot, 1913 AC 417.

41. Kehar Singh v. Stase (Delhi Admin.), (1998) 3 SCC 609.
whether the contract was a wagering contract. The burden of proving the first issue
lies on A, and proving the second issue on B. Here A must begin and prove the
contract. He may then adopt one of the courses, namely (a) produce his evidence on
the ther issue and then close his case; or (b) reserve it by way of answer to the
evidence that may be produced by B. In the latter case B has to produce his evidence
on the issue as to wager, and A may then call his evidence in the rebuttal. B may
then reply specifically on the evidence produced by A. A is then entitled to reply
generally on the whole case. In the hypothetical suit for specific performance with
which we have been dealing all along, the burden of proving issues 3, 5, 6 and 7 lie
on the plaintiff and that of proving the remaining issues lie on the defendant. It is a
case, however, which, having regard to its facts, will proceed in the ordinary manner,
and does not require any evidence in rebuttal. If the plaintiff's counsel is absent at
the time of hearing or arrives late, and in the meantime the counsel for the
defendant starts his arguments, the counsel for the plaintiff has no right of
interruption."
The same procedure as that laid down above is to be followed in cases in which
there has been a first hearing, except (a) and (b), for the pleadings in these cases have
been read and the issues have been raised at the first hearing.
The rules as to burden of proof are laid down in Ss. 104-114 of the Indian
Evidence Act, 1872. The rules as to the examination, cross-examination, and re-
examination of witnesses are laid down in Ss. 135-166 of the said Act. As regards
witnesses, it may be observed that the evidence of a witness of his examination-in-
chief shall be given by an affidavit and copies of the same shall be supplied to the
other party." However, according to O. XVII1, R. 16, a witness may be examined
before the hearing when he is about to leave the jurisdiction of the court, or if there
is other sufficient cause to examine him immediately. This is called examination de
beneesse. A witness may also be examined on commission in the cases specified in O.
XXVI, Rr. 1,4 and 5. One of the cases is where he resides beyond the local limits of
the court's jurisdiction.*" However, a witness residing within the local limits of the
jurisdiction may also be examined on commission in the interest of justice or
expeditious disposal of the case or for any other reason."" In this connection O. V,
R. 4 states as to when a defendant cannot be ordered to attend in person and O.
XVI, R. 9 explains as to when a witness cannot be so ordered.
As far as cross-examination and re-examination of the witnesses is concerned, it

may be taken either by the court or by the commissioner appointed by the court.
The commissioner has the power to remark as to the demeanour of the witness and
record the objections raised during the evidence. However, he has no power to
42. SheelaBarse v. Union of India, (1988) 4 SCC 226

43. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1 July 2002), O.
XVIIl, R4. .
44. See ch. 2, under the heading Jurisdiction'.
45. Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 1999 w.e.f. 1 July 2002), O. XVIII,
R. 19 read with O. XXVI, R. 4A.
46. Ibid, O. XVIl, R 4(2).
Chapter8 Hearing and Disposal
127
decide such objections and they have to be decided by the court at the stage of
arguments.
As a general le, the plaintiff has the right to begin in leading evidence. However,
if this clainm or fact is admitted by the defendant, and he contends that the plaintiff
is disentitled to any relief on other grounds of fact, the defendant has a right to
begin in such cases. As regards the defendant's interse, which of the defendants
should begin has not been dealt with under 0. XVIII. The defendants who wholly
or in part support the case of the plaintiff should be called upon to lead evidence
before those defendant's who do not support the case of the plaintiff." Whoever
begins evidence, it is necessary that the parties must give evidence before their
respective witnesses, as has been stated in O. XVIl, R. 3A. This provision is salutary
because no party can be allowed to fill up the lacuna found in the evidence given by
their witnesses. However, the prohibition is not absolute. It is possible to obtain
permission from the court for later examination of the party. Such permission
should be obtained before witnesses are examined. However, there are judicial
decisions which grant such permission even if it is sought after witnesses are
examined."
The order of adducing evidence outlined above is liable to be distributed or
disregarded by the court. It can examine any witness at any stage, with reasons to be
recorded for such deviation from the order. Suppose if a witness is suffering from
disease and it is not likely that he may survive till trial takes place in its sequence, he
may be examined before recording evidence of any party or witness. The court will
exercise its discretion looking at the exigencies. If it appears that insistence on
normal sequence is likely to result in loss of evidence or non-availability of material
or valuable evidence, the order can be departed from and such witness may be
examined at any stage.
"Evidence recorded by another judge under O.XVIll R.15"

0. XVIII R. 15 addresses an unforeseen situation where a Judge is prevented by
death, transfer or other cause from concluding the trial of a suit. It empowers his
successor to deal with any evidence or memorandum taken down or made under the
foregoing rules as if such evidence or memorandum had been taken down or made
by him or under his direction under the said rule and may proceed with the suit
from the stage at which his predecessor left it.
This rule does not apply to the Chartered High Courts. "Evidence heard and
recorded by one-Judge is to be treated as evidence in suit before another Judge,
when the suit on account of change of assignment or any other reasons comes up for
hearing before some other Judge. For that, neither consent of parties nor specific
47. Tbid.
48. ChandraShekharPattjoshi v.JogendraPattjoshi,AIR 2004 Ori 131:97 (2004) Cur LT 465.
49. Paramananda Fatehsingh v. Labanya Bawa, AlR 1979 Ori 132.
order of release of suit as part heard is required by earlier Judge who has merely
recorded evidence."30
Further, the court has the power to recall at any stage of the proceedings, any
witness already examined as stated in O. XVIII, R. 17. The provision of O. XVIl,
R. 17 is merely an enabling provision for the convenience of the court and does not
permit a party to re-examine the witness to fill the lacuna in the case. Under O.
XVIll, R. 17 a party or a witness can be recalled for re-examination. The power
under R. 17 of O. XVIll of the code is to be sparingly exercised and in appropriate
cases and not as a general rule merely on the ground that the recall and
re-examination would not cause any prejudice to the parties. That is not the scheme
or intention of R. 17 of O. XVIII of the code. The power to recall any witness under
this rule should be invoked not to fill up the lacuna in the evidence of the witness
which has already been recorded but to clear any ambiguity that may have arisen
during the course of his examination.
Where a vital question has not been put to the witness during examination due to
lapse of counsel, the witness may be re-called under this provision. The party
seeking re-call of the witness must point out the essential questions that had not
been put to the witness earlier. The right of the court to act under this rule is not
restricted to action on its own motion. "
After the conclusion of evidence of the parties, the parties may address the oral
arguments and before the conclusion of oral arguments they shall submit concise
written arguments, and the court shall fix the time limit for oral arguments."
8.3 JUDGMENT [ORDER XX]
After the case has been heard, the court may pronounce judgment at once, or it
may take time to consider its judgment and in that case the judgment may be
pronounced within 30 days of the conclusion of hearing which in exceptional and
extraordinary circumstances may be extended not beyond a period of 60 days from
the date of conclusion of the hearing and copies of the judgment shall be made
available to the parties immediately after pronouncement of the judgment. 'An
unreasonable delay between hearing of arguments and delivery of judgment, unless
explained by exceptional or extraordinary circumstances, is highly undesirable even
when written arguments are submitted. It is not unlikely that some points, which
the litigant considers important, may have escaped notice. But, what is more
important is that litigants must have complete confidence in the results of
50. Keith Allams v. Irwin D'silva AIR 2000 Bom 182.

51. Vadiraj Naggeppa Vernekar u. Sarad Chand Prabhakar Gogate, AIR 2009 SC 1604 (1607): (2009) 4
SCC 410.
52. Gullipalli Naram Naidu v. Kinthali Kumaswami Pandian, AIR 2003 AP 481.
53. Code of Civil Procedure, 1908 (as inserted by the Amendment Act, 1999 w.e.f. 1 July 2002), O. XVII,
R. 2(3A)..
54. 1bid, O. XVIIL, R. 2(3D).
55. Code of Civil Procedure, 1908 (as substituted by the Amendment Act, 2002), O. XX, R. 1(1).
56. 1bid (as substituted by the Amendment Act, 1999), O. XX, R. 6(B).
litigation. This confidence tends to be shaken if there is excessive delay berween
hearing of arguments and delivery of judgments. Justice, as we have often
observed, must not only be done bust must manifestly appear to be done.""In civil
cases, the judgment must be pronounced within two months of conclusion of the
hearing of the case.The court is to record reasons for delay in pronouncing
judgment beyond 30 days after hearing. An unreasonable delay unless explained by
exceptional or extraordinary circumstances is highly undesirable. A judgment
delivered after a long delay is liable to be set-aside without examining the case on
merits. Judgment' means the statement given by the judge on the grounds of a
decree or order as stated under S. 2(g). Every judgment (other than one of a court
of small cause) should contain:
(1) a concise statement of the case;

(2) the points for determination;
(3) the decision thereon; and
(4) the reasons for such decision. Judgments ofa court of small cause need not
contain more than items (2) and (3).
In suits in which issues have been framed the court should state its findings or
decision, with the reasons for the findings, upon each separate issue. The last
paragraph of a judgment must state in precise terms the relief granted by such
judgment. The relief allowed by the court should be specific and not in general
terms. If a party has any grievance as to the statement of facts recorded in the
judgment, which is conclusive of the facts so stated and cannot be contradicted by
affidavit or other evidence, or about the recording of concessions made by a party,
they can call the attention of the very judges who have made the record. And if no
such step is taken, it is not open to the party to canvass the same before the
superior court to the contrary."
The judgments delivered/pronounced which have remained unsigned are valid,
effective and operative as any other effective judgment signed by the judge" as
signing is a formality to follow the judgment, and the judgment to be operative does
not await signing thereof.
"Alteration in judgment"
O. XX Rule 3 says that the judgment shall be dated and signed by the Judge in open
court at the time of its pronouncement, and once signed, such judgment shall not
afterwards be altered or added to, save as provided by section 152 or on review.
57. RC. Sharma v. Union of India,(1976) 3 SCC 574.

S8. Anil Rai v.Stateof Bihar, AIR 2001 SC 3173.
59. Kanhaiya Lal v. Anup Kumar, AIR 2003 SC 689: (2003) 1 SCC 430.
60. State of Bihar v. SecretariatPress Ministerial Staff Union, AIR 2002 SC 2145: (2002) 9 SCC 68.
61. Shankar K Mandal v. State of Bihar, AIR 2003 SC 4043 : (2003)) 9 SCC 519.
62. Phool Kumari v. Nandu Ram, AIR 2003 HP 75.
63. Vinod Kumar Singh v. Banaras Hindu University, AIR 1988 SC 371:(1988) 1 SCC 80.
This rule applies to appeals also. The Court is well within its competence to
reconsider the draft order so long as it has not been perfected under this rule but it
cannot do so once the judgment is signed. "In view of the provisions under O. XX
R. 3 and 6 and S.152 and S.153 of CPC, once the judgment and decree in
pursuance thereof has been passed by a court of competent jurisdiction it cannot be
made subject matter of interpretation by another court so as to mean something
different from what it shows."* "This rule does not bar the power of the High
Court to alter under section S. 15l a scheme framed by it under section S. 92 on a
proper cause being shown."
The court should state its findings or decisions with reasons thereof upon cach
issue separately (O. XX, R. 5) in the judgment. 'A judgment must be a self.
contained document from which it should appear as to what were the facts of the
case and what was the controversy which was tried to be settled by the court and in
what manner. The process of reasoning by which the court came to a particular
conclusion and decreed or dismissed the suit should clearly be reflected in the
judgment."00 Thus, in hypothetical suit for specific performance with which we have
been dealing all along, the court should record its finding on each issue. The
findings form a part of the judgment. The mode of recording the findings is "I find
issue no. 1 in the negative, issue no. 2 in the negative, issue no. 3 in the affirmative,
issue no. 4 in the negative, issue no. 5 in the affirmative, issue no. 6 in the negative,
issue no. 7 in the aftirmative-Rs. 5,000'. This means that all the issues are found
against the defendant except issue no. 6 as to specific performance. The effect of the
findings is the judgment for the plaintiff in that suit for Rs 5,000. This has been
enumerated in O. XX, Rr. 1-5. The court may also award costs to the plaintiff as
stated by S. 35 of the Code and interest on judgment [on Rs 5,000 and costs] at the
specified rate stated in S. 34.
It is pertinent to note that there is no judgment for the plaintiff for specific
performance.
8.4 DECREE [ORDER XX]
As clearly stated by S. 33, a decree follows a judgment. Order XX, R. 6A states that
after the judgment is pronounced, the decree shall be drawn up as expeditiously as
possible and in any case, within 15 days from the date on which the judgment is
pronounced. Delayed drawing up of a decree shall not have any adverse etfect on its
validity as it has nothing to do with the merits of adjudication.
"Following essential requirements should be fulfilled if an order should be treated
asa'decree':0
64. Kalyan Singh v. Vakil Singh, AIR 1990 MP 295

65. Samarendra Nath Sinha v. Krishna Kumar Nag, AIR 1967 SC 1440.
66. Balraj Taneja v. Sunil Madan,(1999) 8 SCC 396.
67. See ch. 3.
68. Mohd Serajuddin v. Mohd Abdul Khalique, AIR 2005 Gau 40.
69. Cantonment Boardv. Church of North India , 2012 (12) SCC 573.
G) there should be an adjudication in a suit;
(i) the adjudication should result in a formal expression which is conclusive

so far as the court expressing it;
(i) the adjudication should determine the rights of parties with regard to all or
any of the matters in controversy in the suit; and
Civ) the adjudication should be one from which an appeal does not lie as an
appeal from an order (under Section 104 and order 43 Rule 1 of the
Code) nor should it be an order dismissing the suit for default."
The term 'decree' has been defined in S. 2(2). The essentials of the decree are:
) Theremustbeanadjudication ofdisputes.
(i) Such adjudication must conclusively determine rights of parties with
regards to all or any of the matters in controversy in the suit.
Gii) There must be formal expression of such adjudication.
Rejection of plaint under O. VII and determination of any question within S. 144
are deemed to be decrees. However, any order from which an appeal lies or an order
of dismissal for default are not decrees. The decree will then be drawn up by an
officer of the court. It should contain the number of the suit, the names and
descriptions of the parties, and particulars of the claim, and shall clearly state the
relief granted or other determination of the suit, eg., that the suit is dismissed.
While drating a decree, care must be taken to see that it agrees with the judgment as
regards the relief granted or other determination of the suit as enumerated in O. XX,
R. 6. The provision under O. XX of the code requires a judgment to contain all the
issues and findings or decision thereon with the reason therefore. The judgment has
to state the relief allowed to a party. The preparation of decree follows the judgment.
The decree shall agree with the judgment. If the decree does not agree with the
judgment, the court has an inherent power to amend it so as to carry out its own
meaning. Defect in drawing up a decree is a curable irregularity." The court may
not have suo motu power to amend a decree but the same would not mean that it
cannot rectify a mistake. " "The court has also the power conferred upon it by S. 152
of the Code to correct clerical or arithmetical mistakes, in a decree arising from any
accidental slip or omission. The principle behind the provision under S. 152 of the
code is that no one should suffer due to a bona fide mistake." In either of the above
cases, a decree may be amended by the court either of its own motion or on the
application of any of the parties. If a decree is sought to be amended in any other
case, it can only be done by a review of judgment which will be explained hereafter"
or by an appeal." The provisions of O. XX, R. 6A enable a party to file an appeal
without annexing the certified copy of the decree alongwith the memorandum of
70. Om Prakash Verma v, State of A.P (2010) 13 SCC 158 (188).

7. MobdSerajuddinv. Mohd Abdul Khalique, AIR 2005 Gau 40.
2.S.Satnam Singh v. SurenderKaur, (2009) 2 SCC 562 (569).
73. Tilak Raj v. Baikunthi Devi, 2009 (4) Bom CR (SC) 570 (B): AIR 2009 SC 2136: 2009 (3) All MR 956
74. Seech. 12.

75. See chs. 10-11.
132
appeal. Filing of certified copy of the judgment would suffice and the operative
portion of the judgment shall for all practical purposes be deemed to be a decree."
The grant of mesne profit without any inquiry in terms of O. XX, R. 12 of the
code is not permissible" and the computation of mesne profit must be in
accordance with provisions given under O. XX, R. 12 of the code."
"Mesne Profits"
S. 2(12) CPC provides that'mesne profits of property means those profits which the
person in wrongful possession of such property actually received or might with
ordinary diligence have received therefrom, together with interest on such profits,
but shall not include profits due to improvements made by the person in wrongful
possession. "The object of awarding a decree for mesne profits is to compensate the
person who has been kept out of possession and deprived of enjoyment of his
propery even though he was entitled to possession thereof."
It is thus clear that ... "Wrongful possession of the defendant is the very essence of
a claim for mesne profits and the very foundation of the defendant's liability
therefor. As a rule therefore, liability to pay mesne profits goes with actual possession
of the land. That is to say, generally the person in wrongful possession and
enjoyment of the immoveable property is liable for mesne profits. But, where the
plaintiff's dispossession, or, his being kept out of possession can be regarded as a
joint or concerted act of several persons, each of them who participates in the
commission of that act would be liable for mesne profits even though he was not in
actual possession and the profits were received not by him but by some of his
confederates."0
"It is no doubr the serled law that the test set by the statutory definition of "mesne
profits is not what the plaintiff has lost by his exclusion, bur what the defendant
has, or might reasonably have made by his wrongful possession."0
However, "when the person in wrongful possession planted indigo for use in his
adjacent factory and it was proved that the ordinary farmer would have grown sugar
cane, wheat or tapioca mesne profits should beassessed on the profits of cultivation
of those more profitable crops.
Similarly ... "Interest is an integral part of mesne profis and has, therefore, to be
allowed in the computation of mesne profits itself. That proceeds on the theory that
the person in wrongful possession appropriating income from the property himself
gets the benefit of the interest on such income.
76. Laka Kula Sujatha v. Thummu Manemma, 2004 AlIHC 2237 (AP): 2004 (3) ALD 215:2004 (3) ALT 298.
77. Ganapati Madhav Sawant v. Dattur Madhav Sawant, (2008) 3 SCC 183.
78. Manohar v. Jaipal Singh, (2008) 1 SCC 520: AIR 2008 SC 429.
79. Lugy Kochuvareed v. P. Mariappa Gounder, (1979) 3 SCC 150.
B0. Lucy Kochuvareed v. P. Mariappa Gounder, (1979) 3 SCC 150.
81. RP. David v. M. Thiagarajan, 1996 AIHC 1194.
82. Harry Kempson Gray v. Bhagu Mian, AIR 1930 PC 82.
83. Mahant Narayana Dasjee v. Tirumalai Tirupathi Devasthanam, AIR 1965 SC 1231.
133
The following is a form of a decree:
Form of Decree
(Title of suit as in plaint) 84
Claim for specific performance of an agreement,dated the ...... day of 1914, and
in the alternative for damages, Rs 5,000.
The suit coming on this day for finaldisposalbefore .... [nameof thejudge] in
thepresenceof .. Ipleader'n
samelfortheplaintiffand of. .pleader's
name for the defendant, it is declared that the plaintiff is not entitled to specific
pertormance of the said agreement, and it is ordered and decreed that the detendant
do pay Rs 5,000 to the plaintiff as and for damages for breach of the contract
referred to in the plaint, and Rs... on account of the costs of the suit, with interest
thereon at the rate of 6 percent per annum from this date to date of realization.
Given under my hand and seal of the court, this. .. day of

.19....
Judge
8.4.1 Kinds of Decree

A decree may be either preliminary or final. A decree is preliminary when further
proceedings have to be taken before the suit can be completely disposed of. It is final
when the suit has been completely disposed of and this has been clearly stated in S.
2(2). The form given above is a form of a final decree. A preliminary decree, as is
stated by O. Xx, Rr. 13-16, is usually passed in suites for dissolution of partnership,
suits for account berween principal and agent, administration suits, and pre-emption
suit. Thus, in a suit for the dissolution of a partnership and for partnership accounts,
the court before passing a final decree, may pass a preliminary decree declaring the
proportional shares of the parties, fixing the day on which the partnership shall
stand dissolved or be deemed to have been dissolved, and directing such accounts to
be taken as it thinks fit. Where such a decree is passed, the suit is adjourned to a date
fixed by the court for passing a final decree. After the accounts are taken and the
amount due to each partner has been ascertained, the court may pass a final decree.
The instant case was a suit for partition of property. Parties entering into
compromise. It was stipulated in compromise that they were in separate and
exclusive possession of properties allotted to them. A decree was passed entirely on
basis of compromise. As the parties were already in possession of their shares no
further enquiry was required to be made. Held, in the circumstances the
compromise decree was final decree and not preliminary decree.
It is very important to note S. 97 of the Code which states that if a partry aggrieved
by a preliminary decree does not appeal from that decree, he will be precluded from
disputing its correctness in any appeal which may be preferred from the final decree.
84. See ch. 3.

85. Bimal Kumar v. Shakuntala Debi, 2012 3) SCC 548.
While passing a decree in suit for partition of property or separate possession of a

share, It is necessary for Court to examine the nature and character of the properties
in suit such as who was the original owner of the suit properties, how and by which
source he/she acquired such properties, whether it was his/her self-acquired propertry
or ancestral property, or joint property or coparcenery property in his/her hand and,
if so, who are/were the coparceners or joint owners with him/her as the case may be.
Second, how the devolution of his/her interest in the propertry took place
consequent upon his/her death on surviving members of the family and in what
proportion, whether he/she died intestate or left behind any testamentary succession
in favour of any family member or outsider to inherit his/her share in properties and
if so, its effect. Lastly, whether all properties are included in the suit and all co-
sharers, coparceners, co-owners or joint-owners, as the case may be, are made parties
86
to the suit.
'A preliminary decree can be varied if law governing the parties is amended before
conclusion of the final decree proceedings, he party benefited by such amendment
can make a request to the Court to take cognizance of the amendment and give
effect to the same. If the rights of the parties to the suit change due to other reasons,
the Court seized with the final decree proceedings is not only entitled but is duty
bound to take notice of such change and pass appropriate order.
"Passing of more than one preliminary or final decree"

There can be more than one preliminary or final decree within the meaning of
Section 2(2) CPC. "There is nothing in the Code of Civil Procedure which
prohibits the passing of more than one preliminary decree, if circumstances justify
the same and that it may be necessary to do so, particularly in partition suits when
after the preliminary some parties die and the shares of other parties are thereby
augmented. If such an event transpires the court can and should pass a second
preliminary decree correcting the shares and if there is a dispute in that behalf the
order of the court deciding the dispute and making the variations in the shares
specified in the preliminary decree already passed, is a decree in itself, which would
88
be liable to appeal.
Ordinarily there will be only one final decree in a suit. Special circumstances like
two or more causes of action joining together may require the passing of more than
one final decree in the same suit. "The definition of decree itself does not put any
limitation on the power of the court to make one or more final decrees nor does it
declare that the court would become functus-officio or would be bereft of its
jurisdiction no sooner than it passesa final decree irrespective of whether that decree
finally disposes of the suit or not." There is nothing in the code to infer that the
court cannot pass more than one final decree in a suit.
86. Shasidhar v. Ashwini Uma Mathad, AIR 2015 (SC) 1139.

87. Prema v. Nanje Gowda, 2011 (6) SCC 462
88. Phoolchandánd v. Gopal Lal, AIR 1967 SC 1470.
89. Azizabi v. Fatima Bi and Others, (1977) 1 Andh WR 136 (141) DB.
"Interest" U/s 34 CPC
The term 'interest' has not been defined in the Code. "Black's Law Dictionary (7th
Edition) defines "interest inter alia as the compensation fixed by agreement or
allowed by law for the use or detention of money, or for the loss of money by one
who is entitled to its use; especially, the amount owed to a lender in return for the
use of the borrowed money. According to Stroud's Judicial Dictionary of Words and
Phrases (5th Edition) interest means, inter alia, compensation paid by the borrower
to the lender for deprivation of the use of his money."90
"There are three divisions of interest according to the period for which interest is
allowed by the Court, viz:
(1) Pre-lite: interest accrued due prior to the institution of the suit on the
principal sum (due) adjudged. Interest for the period anterior to institution of
suit is not a matter of Procedure as it is referable to substantive law and can be
sub-divided into rwo sub-heads; (i) where there is a stipulation for the payment
of interest at a fixed rate (contract rate) and (i) where there is no such
stipulation as per statutory provisions providing certain rate of interest and in
its absence as per the interest Act (from date of demand (from date of service
of demand notice) and at prevailing market rate and bank lending rate as
guidance).
(2) Pendent-lite: In addition to pre-lite interest, it is the additional interest

on the principal sum adjudged or declared due from the date of the suit either
at contract rate if reasonable or at such rate as the Court deems reasonable in
the discretion of the Court (as per Section 34 CPC till date of decree or under
Order 34 Rule 11 C.P.C. in case of mortgage debt if contract rate is
unreasonable and excessive to reduce even from date of suit till expiry of the
period of redemption) as not a substantive law;
(3) Post-lite: In addition to pre-lite interest on principal sum and pendent-

lite interest on the principal sum adjudged or found due, it is the further
interest on such principal sum (as per Section 34 CPC or under Order 34
C.P.C. as not a substantive law, from the date of the decree to the date of the
payment and in mortgage decree from date of preliminary decree till expiry of
period of redemption and thereafter till realization/payment as the case may be
in any decree for money held due with or without charge preliminary or final
or partly final decree) or to such earlier date as the Court thinks fit, in the
discretion of the Court, at a rate not exceeding 6 per cent per annum except
where the transaction is a business or commercial one to grant above 6 percent
»91
but does not exceed contract rate.
So far as the rate of pendent-lite and post-lite interest is concerned, no doubt it is at

the discretion of the Court save the power is exercised judiciously, having regard to
90. Central Bank of India v. Ravindra, (2002) 1 SCC 367.

91. M. RajeswarRao v. Chitluri Satyam, Review A.S.M.P. No. 2386 OF 2013 decided on 09. 12. 2013.
136
the principle of restitution. It was by taking note of drastic fall in bank rate of
interest that the Apex Court reduced the post lite interest from 18% to 9% p.a.
"Interest is also payable in equity in certain circumstances. The rule in equity is

that interest is payable even in the absence of any agreement or custom to that effect
though subject, of course, to a contrary agreement. Interest in equity has been held
to be payable on a market rate even though the deed contains no mention of
interest. Applicability of the rule to award interest in equity is attracted on the
existence of a state of circumstances being established which justify the exercise of
such equitable jurisdiction and such circumstances can be many."
Section 34 CPC does not provide for the payment of 'Compound Interest i.e
interest on interest. But it can be awarded if stipulated by way of agreement. The
Hon'ble Supreme Court has noted the practice of charging interest as prevalent in
Australia, Canada and India to hold that "compound interest can be awarded by
Courts in India when justice so demands and is not to be regarded as being against
public policy. The Court noted that it is a common knowledge that provision is
made for the payment of compound interest in contracts for loans advanced by
banks and financial institutions and such contracts are enforced by Courts."
"Costs" U/s 35, 35-A, 35-B

According to Black's Law Dictionary "costs is a pecuniary allowance made to the
successtul party for his expenses in prosecuting or defending a suit or a distinct
proceeding wit a suit." Costs' under CPC may be divided into four heads i.e.
General Costs (S.35), Miscellaneous Costs (O.XX-A), Compensatory Costs (S.35-A)
and Costs for causing delay (S.35-B).
Section 35 confers the courts with discretionary power to award the costs. Even if
the court has no jurisdiction to try the suit yet it can award costs in exercise of such
powers.The object of Section 35 is not to enable litigant to make anyching in the
way of gain or profit, over and above the expenses for maintaining or defending the
action, nor to give exemplary damages or smart money, by way of penalty or
punishment on the opposite party."72 "Awarding of costs under Section 35 must be
a judicial discretion exercised on sound legal principles. The general rule is that
costs shall follow the event i.e. successful party is entitled to his costs, unless he is
guilty of misconduct or there is other good cause for depriving him of it."" "But
where the Court directs that any costs shall not follow the event, the Court shall
state its reasons in writing." 98 The court has full power to determine by whom or
out of which property and to what extent such costs are to be paid, and to give
directions for such purposes.
92. D.D.Au. Joginder S. Monga, AIR 2004 SC 3291

93. South Eastern Coalfields Ltd. v. Stateof M.P. and Ors. AIR 2003 SC 4482.
94. Renusagar Pouer Co. Lid. v. General Electric Co., 1994 Supp.(1) SCC 644.
95. The Fim ofN. Peddanna Ogeti Balayya and ohers u. Karta V. SrinivasayyaSettiSons. AIR 1954 SC 26.
96. Vital Shetty and ohers v. Parameshuari alias Uijakke Shedthi andothers, AIR 1954 Mad 100.
97. T. S. Swaminatha Odayar v. Official Receiver of West Tanjore, AIR 1957 SC 577.
98. Section 35 (2) CPC 1908.
137
O. XX-A inserted by the Code of Civil Procedure (Amendment) Act, 1976 gives
explicit powers to the court to award costs in lieu of expenditure, including
expenses incurred on notices, typing charges, expenses of witnesses and obtaining
copies etc. The award of costs under this provision shall be regulated by the rules
made by the High Court.
Section 35-A empowers the court to make an order for compensatory costs in
respect of false or vexatious claims or defences. "Section 35-A is intended to deal
with cases for which the exercise of ordinary discretion of the Court under section
35 would not afford a sutficient compensation."" "Section 35-A empowers a civil
court to award compensatory costs in extremely exceptional cases. Three conditions
are to be satisfied before the court proposes to award compensatory costs in a suit.
They are (1) the claim or defence must be false or vexatious (2) objection must be
taken that the claim or defence is false or vexatious to the knowledge of the pary
raising it (8) such claims or defence must have been disallowed or withdrawn or
abandoned in whole or in part."
"Section 35-A is sufficiently wide to bring within it not only a party who actually
puts forward a false claim or defence but also a person who instigates and supports
the party who puts forward such claim or defence. Thus, where one of the
defendants is the real actor or instigator behind the plaintiff's vexatious claim, the
court can pass an order for compensatory costs, under this section, both against the
plaintiff and the defendant. This provision does not apply to appeals or revision
but includes execution proceedings. The court can award costs under Section 35-A
not exceeding three thousand rupees or the limits of its pecuniary jurisdiction, and
the amount awarded under this section shall be taken into account in any
subsequent suit for damages or compensation in respect of such claim or defence.
Section 35-B enables the courts to impose 'costs for causing delay'. It provides that
if, on any date fixed for the hearing of a suit or for taking any step therein, a party to
the suit-() fails to take the required step, or (i) obtains an adjournment for taking
such step or for producing evidence or on any other ground, the Court may, for
reasons to be recorded, impose costs on such party payable to the other party which
are reasonably sufficient to reimburse the other party in respect of the expenses
incurred by him in attending the Court on that date. Furcher, the payment of such
costs, on the date next following the date of such order, shall be a pre-condition to
further prosecution of- (a) the suit by the plaintiff, where the plaintiff was ordered to
pay such costs or (b) the defence by the defendant, where the defendant was ordered
to pay such costs, as the case may be.
The provisions of Section 35-B are mandatory. The provisions of S. 35-B (2) of
the code, which provide for the recovery of the amount of costs independently on
the basis of the order to be separately drawn up for that purpose, further shows as to
1. V. Peddarangaswami v. State of Madras, AIR 1953 Mad 583.

2. 1986 Ker LT 278.
3. Chittam Subbaya v. Muihyala Ramachandrappa And Ors, AIR 1945 Mad 84.
how sacrosanct and binding the order of costs is intended to be treated by the
legislature."4
8.5 WHERE PARTIES DO NOT APPEAR [ORDER IX]

We have hitherto assumed that both the plaintiff and the defendant appear at the
hearing of the suit. We have now to consider the consequence of the non-
appearance of parties. The rule as to this may be briefly stated as follows:
(i) Where on the day fixed for appearance, it is found that the summons was
not served upon the defendant in consequence of the plaintiff's failure to
pay the court fee or postal charges, chargeable for that service or to present
the copies of the plaint, the court may order for dismissal of the suit. This
is clearly stated by O. IX, R. 2 of the Code (as amended by the
Amendment Act, 2002 w.e.f. 1 July 2002). However, no order of
dismissal may be made, if the defendant appears in person or through
agent on the day fixed for him for appearance as is provided by proviso to
O. IX, R. 2.
(i) Order IX, Rr. 3-4 state that where neither party appear when the suit is
called on for hearing, the court may make an order that the suit be
dismissed. However, it is not obligatory upon the court to dismiss the
suit. The dismissal under this rule does not amount to a decree and no
appeal lies therefrom. However, the plaintiff may then bring a fresh suit,
or he may apply for an order to set the dismissal aside. If che court is
satisfied that there was sufficient cause for his non-appearance, it shall
make an order, setting aside the dismissal and fix a day for proceeding
with the suit. The court has to consider 'whether there was sufficient
cause for the absence on the relevant date and not on pre-
vious/subsequent date. No notice of the application for setting aside
the dismissal order is required to be served on the defendant. But once
the application is allowed, the defendant is entitled to get notice of
restoration and date of further hearing.° Requirement of notice is man-
datory. Non service of notice is suficient to get decree set aside.'
The filing of a fresh suit by the plaintiff, after the earlier suit having been
dismissed under O. IX, R. 2 or under O. IX, R. 3, shall be subject to the
law of limitations prescribed for such suit, and if the plaintiff chooses to
apply for setting aside the dismissal order of suit, he shall move an
application within 30 days of the order ofdismissal of the suit.*
(ii) Where the plaintiff appears and the defendant does not appear, the
plaintiff has to prove service of summons on the defendant. If it is proved
4. Shri Anand Parkash v. Shri Bharat Bhushan Rai, AIR 1981 Punjab 269.
5. GPSrivastavav. RKRaizada, AIR 2000 SC 1221: (2002) 3 SCC 54.
6. Jawar PrasadShaw v. Jhaina Ghosh, AIR 2005 NOC 303 (Cal) : 2005 (1) CHN 12.
7. Reena Sadh v. Anjana Enterprises, AIR 2008 SC 2054: (2008) 12 SCC 589.
that the summons was duly served, the court may proceed ex parte, and
pass a decree for the plaintiff, on the plaintiff proving his case. "The
provision of O.IX R.6 is confined to first hearing and does not per se
apply to subsequent hearings." Where the date of hearing is declared a
holiday, the court should not proceed exparte on the next working day.
Where a decree is passed ex parte against a defendant, he may prefer an
appeal from the decree (a course that is rarely adopted), or he may apply
tor an order to set it aside. If the court is satistied that the summons was
not duly served or that there was sufficient cause for his non-appearance,
the court 'shall' make an order setting aside the decree, and shall appoint a
day for proceeding with the suit. Where an ex parte decree has been passed
against two or more defendants, and if one of them only applies for an
order to set it aside, the court may set it aside as against all the defendants
if the decree is of such a nature that it cannot be set aside as against such
defendant only. This happens when the decree is one and indivisible, as
where it has been passed against the members of joint Hindu family for a
debr alleged to be due from the family. The above has been stated in
O. IX, Rr. 6-13.
Few changes were made in 1976 with regard to setting aside of an ex parte
decree or order and these deserve our attention. We are aware that an ex
parte decree can be set aside if summons were not properly served. This
provision was sometimes misused. A party, who may be fully aware of the
pendency of suit may remain absent because there is some irregularity in the
service of summons and may apply for setting aside ex parte decree after it is
passed. To remedy this, now there is a provision under O. IX, R. 13, that an
ex parte decree shall not be set aside on the ground of irregularity in the
service of summons if the court is satisfied that the defendant had the
knowledge of hearing of the suit. Secondly, no application for setting aside
ex parte decree will be maintainable once appeal against such decree is
disposed of by a higher court. If appeal is withdrawn, then such application
can be maintained.
In cases where the court has proceeded ex parte against the defendant, and
the hearing of the case is adjourned without passing a decree for the
plaintiff, O. IX, R. 7 provides that the defendant may apply to the court
for setting 'the ex parte order aside. Neither the Code nor the Limitation
Act, 1963 prescribe the period of limitation in concrete terms for moving
such an application. However, it has to be on or before the date for which
the hearing of the case was adjourned and on showing sufficient cause, the
court may set aside the ex parte order as is stated under O. X, R. 7. But,
where the hearing of the suit is complete and the court has adjourned the
9. SangramSingh v. Election Tribunal, AIR 1955 SC 425.

10. Rafi v. Abdul Aziz, AIR 1987 AII 17.
case for pronouncing the judgment, application under O. IX, R. 7 would

not be maintainable."
Where an ex-parte order is set aside, the defendant is relegated to the

position as on the date when he was proceeded ex parte and shall be
allowed to join the proceedings therefrom and nor from a prospective
date. The court shall take care of the loss of time and inconvenience
caused to the plaintiff by relegating back the proceedings to an carlier
stage." In cases where the defendant fails to show a good cause for his
non-appearance, the litigation does not come to end and he can take part
in the proceedings of the suit from the stage already reached rill final
decision."
(iv) Where the defendant appears and the plaintiff does not appear, and the
defendant does not admit the plaintiff's claim or any part thereot, the
court shall make an order that the suit be dismissed. The rule applies
where there is only one plaintiff who does not remain present or there are
two or more plaintiffs and all of them remain absent. The plaintiff is then
precluded from bringing a fresh suit in respect of the same cause of action.
However, he may apply for an order to set aside the dismissal, and if he
satisfies the court that there was sufticient cause for his non-appearance,
the court 'shall' make an order setting aside the dismissal and appoint a
day for proceeding with the suit. This has been stated in O. IX, Rr. 8-9. A
liberal approach should be made to understand the sufficient cause for
non-appearance.
In Chhotalal v. Ambala Hargovan," the High Court of Bombay observed
that "when a party arrives late and finds that his suit or application is
dismissed, he is entitcled to have his suit or application restored on
payments of costs.'
In a subsequent case in Currimbhai v. N.H. Moos the same High Court

held that it would be difficult to agree with Chhotalal in principle as a
proposition of law. If such a rigid rule is laid down, it might mean this
that a defendant could successively prevent his suit ever being heard. All
that he would have to do would be appear late on successive dates, and
allowed the suit to be heard ex parte and then to apply at the end of each
day to have the suit restored for hearing. That obviously is a course which
no court would allow."
11. Bhanu Kumar Jainv. Archana Kumar, AIR 2005 SC 626.

12. RitaChaudhrie v.Samiya Dev, 2004 AlHC 2181 (Del): 2004 (72) DRJ518.
13. Vijay Kumar Madan v. RN Gupta Technical Education Society, (2002) 5 SCC 30.
14. East India Cotton Manufacturing Co Ld v. SP Gupta, 28 (1985) DLT 22: 1985 (8) DRJ 348.
15. Chhotalal v. Ambala Hargovan, AIR 1925 Bom. 423.
16. Currimbhai v. N.H. Moos, AIR 1929 Bom. 250.
Notice of the application is required to be given to the defendant before
restoration of the suit under this rule.
On restoration of the suit all interlocutory orders which have been passed
before the dismissal would stand revived unless the court expresly or by
implication excludes the operation of the interlocutory orders passed
before the dismissal. "
If application for restoration of suit dismissed under O. IX, R. 8, be filed

within 30 days of dismissal,an appeal lies from an order rejecting an
application under O. X, R. 9° and a revision against an order restoring a
suit dismissed in default.
Theses rules do not apply to non-appearance owing to death" as the rule

applies to a defaulter and not to a deceased.
(v) According to O. IX, R. 10 where there are more plaintifs than one,
and one or more of them appear and the others do not appear, the court
may permit the suit to proceed as if all had appeared, or make such order
as it thinks fit.
(vi) According to O. IX, R. 11 where there are more defendants than one, and
one or more of them appear and the others do not appear, the court may
permit the suit to proceed as if all had appeared, or make such order as it
thinks fit.
The suit of the plaintiff is also liable to be dismissed under O. IX, R. 5 where the
summons to the defendant was received unserved and the plaintiff fails to apply for
issuance of fresh summons to defendant within 7 days from the date of return made
to the court, unless he shows a sufficient cause for extending the time."
The consequence of non-appearance as enumerated under O. IX of the Code shall

ensue where either the plaintiff or the defendant who has been ordered to appear in
person neither appears, nor furnishes any sufficient cause for such non-appearance is
stated in O. IX, R. 12.
The term 'sufficient cause' appearing at various places in O. IX has received a

liberal interpretation. The ultimate purpose of doing substantial justice must be kept
in mind. After all, judgment rendered by the court after offering opportunities to all
parties and in satisfaction of principles of natural justice is much more valuable than
judgment in absence of either parties. Normally, if it appears to the court that cause
for absence is bona fide, the court will set aside the order passed ex parte. However,
where it appears that any party was recalcitrant or mala fide it may refuse to set aside
17. Vareed Jacob u. SosammaGeevanghese, AIR 2004 SC 3992: (2004) 6 SCC 378.
8. Limitation Act, 1963, Artile. 122.
19. KPJayakumar v. K Ravindran, AIR 2004 Ker 209 (DB).
20. Raja Debi Baksh v. Habib Shah, (1913) 40 LA 151:(1913) ILR 35 All 331 (PC).
21. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1 July 2002), O. K,
R.5.
x parte orders. "The test to be applied is whether the party honestly intended to
remain present at the hearing of the suit and did his best to do so.* Negligence can
be condoned, but indifference stemming from ulterior motives may meet stern
rejection of application to set aside ex parte decree or order. Similar terminology is
used in S. 5 of Limitation Act, 1963 where also it has received such broad
construction."
3:. , K .i .!7*
22. Payal Ashok Kumar v. Ashok Kumar, (1992) 3 SCC 116.

23. It would be relevant and important at this stage to read Code of Civil Procedure, 1908, O. X, O. XIl,
Rr. 1-2.
CHAPTER 9
ExECUTION OF DECREES
9.1 MEANING OF EXECUTION
The term 'execution' has not been defined in the Code. 'Execution' means the
process for enforcing or giving effect to the judgment of the court, and is complete
when the judgment-creditor gets the money or other thing awarded to him by the
judgment.' Execution is the enforcement of decree or orders by the process of the
court so as to enable the decree holders to realize the fruits of the decree, judgment,
or order.
Suppose that in the hypothetical suit for specific performance' a decree is passed
for the plaintiff for Rs 5,000. Suppose, further, that the defendant does nor pay the
amount of the decree to the plaintiff. Then a question that arises here is as to what
steps should the plaintiff take to enforce the decree against the defendant, in other
words, how should he proceed to execute the decree? The subject of execution of
decrees is dealt with in O. XXI of the Code which makes detailed and exhaustive
provision for execution of decrees and orders, and are substantive as well a
procedural. That order contains 106 rules, and is the longest of all orders in the
Code. The present chapter contains an analytical abstract of that order. The
reference to the rules given in this chapter are to the rules of O. XXI.
A obtains a decree against B for Rs 5,000. Here A is the decree holder, B is the
judgment-debtor, and Rs 5,000 is the judgment-debt. If B fails to satisfy the decree,
A may apply for execution of the decree against B* person, or against his propery,
or both. This has been specified by R. 30. However, the court may, according to
R. 21 in its discretion, refuse execution at the same time against the person and
property of the judgment-debtor. Execution against the person of the judgment-
debtor consists in arresting him and detaining him in jail. Execution against the
1. Re Overseas Aviation Engineering (GB) Ltd., (1962) 3 All ER 12.

2. State Bank ofRajasthan v. RustamjiSavkasha, AIR 1972 Guj 179.
3. See ch. 3.
4. See ch. 8.
property of the judgment-debtor consists in attaching and selling his property, and
paying the decree-holder the amount of the judgment-debt out of the sale proceeds.
9.1.1 Application for Execution

Rule 10 specifies that all proceedings in execution are to be commenced by an
application for execution. Rule 11(2) states that the application for execution must
be made in cases of decree, other than a decree granting a mandatory injunction,
within 12 years from the date of the decree and in cases of decree for a mandatory
injunction, within three years from the date of the decree° in writing, and should
contain the particulars set forth in Rr. 11(2) to 14. However, R. 11(1) states that the
only exception is where the decree is for the payment of money and the judgment
debtor is in the precincts of the court when the decree is passed, in which case the
court may order immediate execution on the oral application of the decree-holder at
the time of passing the decree. If the application complies with the requirements of
Rr. 11(2) to 14, the court will issue its process for the execution as per R. 24. If it
does not, the court may reject it, or may require it to be amended as stated by R. 17.
If the application is rejected, the decree-holder may present another application
properly framed.
9.1.2 Who May Apply for Execution

Rule 16 primarily deals with the rights of a transferee of decree, who has been given
the right to seekexecution at par with the transferor - decree holder. If the decree
has been passed jointly in favour of more persons than one, any one of such persons
may apply for execution as provided by S. 146. For Example, a decree passed in
partition suit can be executed by the defendant as he is also a decree-holder to the
extent of share allocated to him.
9.1.3 Against Whom Execution May be applied for

Section 50 specifies that if the judgment-debtor is living, execution is to be applied for
against him. If he is dead, execution may be applied for against his legal
representatives. In the latter case, the decree may not be executed against the person of
the legal representative, but only against the propery of the judgment-debtor which
has come to the hands of the legal representative, and has not been duly disposed of by
him. Execution may be taken out against, "Surety of the judgment-debtor."
9.1.4 Notice Before lssuing Process

Rule 22 states that ordinarily, no notice is required to be issued and the court can
issue its process for the execution of the decree. However, under certain
circumstances notice is required to be to be issued before the issue of process. They
are as follows:

6. 1bid., Art. 135.
Chapter 9 ExecutionofDecrees 145
) Where the application for execution is made more than two years after the
date of decree.
i) Where such application is made against the legal representative of a party

to the decree.
ii) Where such application is made against the assignee or receiver in

insolvency where a party to the decree is adjudged insolvent.
In a case where application for execution is made by arrest and detention
of the judgment-debtor in case of a money decree, the court is required to
issue a notice under R. 37, unless it appears that the judgment-debtor is
likely to abscond or leave the local limits of the jurisdiction of the court in
which case, no notice is necessary.
(iv) Where the execution of the money decre is sought against the person of
the judgment-debtor.
(v) Where the execution is sought against the surety of the judgment-debtor.
(vi) Where the execution is sought by the transferee or assignee of the decree-
holder.
The notice is issued to the judgment-debtor in order to afford an opportunity to
him to put forward his objections against the maintainability of the execution
application and to enable the judgment-debtor to satisfy the decree before execution
is ordered against him.
9.1.5 Mode of Execution

More than one mode of execution of decrees have been provided under the Code.
Section 51 of the Code specifies thus.
The decree can be executed in any of the following modes:

) bydelivery ofanypropertyspecificallydecreed;
i) byattachmentandsale ofproperty;
(Gii) by sale without attachment of any property;
(iv) by arrest and detention in prison;
(v) by appointing a receiver;

(vi) by such other mode or manner as the nature of the relief granted may
require.
A decree-holder has the option to choose a particular mode for executing and
enforcing a decree in his favour. It is for him to decide in which of the several modes
he will execute his decree.' The modes or kinds of execution are subject to the
conditions and limitations prescribed under the Code. We shall consider two chief
modes of execution ofdecrees.
7. Shyam Singh v. Collector, District Hamirpur, (1993) Supp 1 SCC 693.

9.1.6 Execution Against Person of Judgment-Debtor

9.1.6.1 Decree for Payment of Money
In case of a money decree, it can be executed by attachment and sale of the property
of the judgment-debtor or ......]or both. The provisionspecityingthis is not
exhaustive and does not override other provisions of the Code of Civil Procedure,
1908.° However, a person can be arrested and detained in civil prison in execution
of money decree in any one of the following circumstances only:
() thejudgm debtor has dishonestly transferred, concealed or removed his

property or has committed any other act of bad faith or the judgment-
debtor is likely to abscond or leave the local limits of the courr's
jurisdiction with the object or effect of obstructing or delaying the
execution of the decree; or
(i) the judgment-debtor has the means to pay the amount of the decree and
refuses or neglects to pay the same; or
(iii) the decretal dues are such that the judgment-debtor is bound in a fiduciary
capacity to be accountable.
However, S. 51 also specifies that while calculating the means possessed by the
judgment-debtor, the properties, which cannot be attached in execution of a decree
are to be excluded. The words 'refuses or neglects' envisages the capacity to pay.
Inability to pay is not the same thing as refusal or neglect to pay. Default due to
inability as distinguished from refusal or neglect does not justify arrest and
detention. Some element of bad faith must be present. Before a person is arrested
and detained, it is obligatory upon the court to issue notice and afford opportunity
of hearing to the judgment-debtor. Where the judgment-debtor disobeyed the order
of injunction and trespassed into the suit property, he may be ordered to be arrested
or detained in civil prison.
9.1.6.2 Decree Other Than Money Decree

Besides money decree, there are several kinds of decrees which can be
executed by arrest and detention of the judgment-debtor. They are as follows:
) Decreeforspecificmovableproperties,
i) Decree for specificperformance of a contract.
ii) Decreeforperpetualinjunction.
9.1.6.3 Procedure
The procedure differs depending upon the nature of the decree. In case of a money
decree, the notice is required to be issued. As stated earlier, atter such notice is
8. Saraswatibai v. Govind Rao v. Keshav Rao Mahajan, AlR 1961 MP 145 (FB).
9. Ramakrishna Naidu v. Sethuraman, AIR 2005 Mad 108.
Chapter 9 ExecutionofDecrees
147
issued, if judgment-debtor does not appear in obedience to the notice, the court
shall issue a warrant for arrest as provided by R. 37(2). After the judgment-debtor
appears, the court shall hear the decree-holder and take the evidence and give
opportunity to the judgment-debtor to show cause. After hearing both the parties,
the court may order detention or release. The court also has the power to detain the
judgment-debtor pending the conclusion of the inquiry as stated under R. 40.
In case of decrees other than money decrees, no notice is required to be issued
unless the case falls under R. 22. However, in all such cases, the court has the
discretion to issue notice instead of process for execution.
9.1.6.4 Restriction and Conditions

According to S. 57, no woman can be arrested or detained in execution of a money
decree. No person can be arrested till the decree-holder pays subsistence allowance in
the court. The state government may fix the scales according to rank, race and
nationality as per S. 57 and R. 39. No arrest can be made if the judgment-debtor
pays the amount of the decree and cost to the officer arresting him as has been stated
under S. 55. Section 55 also provides that no dwelling house shall be entered into
after sunset and before sunrise for the purpose of making arrest.
9.1.6.5 Period of Detention and Release

The total period of detention shall not exceed three months. However, in case where
the decretal amount does not exceed Rs 5,000 such period of detention shall not
exceed six weeks." If the decretal amount is Rs 2,000 or less, the judgment-debtor, in
such cases, cannot be detained in civil prison. " On expiry of the period of detention,
he shall be released. Such release does not discharge him from the judgment-debt.
However, he cannot be re-arrested in execution of the same decree. He can be released
from the detention before the expiry of the prescribed period in the following cases:
(1) payment of amount mentioned in the warrant;

(i) satisfaction of the decree in any other manner;
ii) request of the applicant at whoseinstance judgment-debtor is detained;
(iv) omission to pay subsistence allowance;
(vserious illness.
9.2 PAYMENT OUT OF COURT
An important question to be asked here is that, suppose that B has paid, in part
payment, Rs 3,000 to.A after the decree was passed out of court, is the court bound
to take such payment into account? It is quite unsafe to try and get a satisfying
decreeout of court without complying with the procedural formalities.
10. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1 July 2002), s. 58(1).
11. Tbid., s. 58(1A).
148
Where any decree is satisfied, wholly or in part, out of court, the decree-holder
shall certify such satisfaction to the court and the court shall record the same. If the
decree-holder does not certify, the judgment-debtor may apply to the court and such
court may certify after issuing a notice to show cause the failure of the decree-holder
to satisfy that there was no satisfaction of the decree as claimed. However, before
such satisfaction is recorded, it must be established that it is proved by documentary
evidence or that it is made in accordance with the rules.
If any satisfaction of the decree is not certified by the decree-holder or recorded by

the court after following aforesaid prescribed procedure, it shall not be recognized by
the court executing the decree. If payment of Rs 3,000 is not certified by the decree
holder and not recorded by the court, the decree for Rs 5,000 can be executed
without taking account of the part of Rs 3,000.
9.3 GARNISHEE
Suppose, in the case given above, B has to recover Rs 3, 500 from C. A can make an
application for attachment of the debr owned by C to B in order to secure
satisfaction of his decree against B. Cis called 'garnishee'. Stated simply, 'garnishee
means a judgment-debtor's debtor. A garnishee has been defined as 'one in whose
hand money belonging to a debtor is attached at the suit of the creditor." The word
garnishee denotes one who is required to garnish', i.e., to furnish a creditor with
the money to pay off a debt."
Garnishee proceedings are a process of enforcing a money judgment by the seizure
or attachment of the debts due or accruing due to the judgment debtor which form
part of his property available in execution. Before issuing attachment, the court may
issue a notice to the garnishee. Such notice calls upon the garnishee to pay the
amount to satisfy the decree or to show cause why he should not do so. If garnishee
makes payment in the court, it will amount to a valid discharge of his debt. The
garnishee has the right to show cause why such debt is not payable or why he should
not be called upon to make payment in the court. IF the garnishee disputes the
liability, it shall be decided as if it were an issue in a suit and upon determination of
such issue, the court can make order as deemed fit. Such determination is appealable
as a decree as provided for in Rr. 46(A) to 46(I). Money payable by the issuing bank
under the letter of credit is not the one belonging to the judgment-debtor and such
claim can be decided only in independent proceedings and not in garnishee
proceedings.
9.4 STAY OF EXECUTION

In order to enable the judgment-debtor to obtain stay of execution or any other
order from the appellate court or the court which passed the decree, the execution of
12. Shorter Oxford English Dictionary, vol. 1, 1990, p. 833.

13. (1981) AlI ER 225.
14. Fargo Freight Ltd v. Commodities Exchange Corpon, AIR 2004 SC 4109: (2004) 7 SCC 203.
Chapter 9 ExecutionofDecrees
149
the decree can be stayed by the court to which decree is sent for execution. Such stay
can be granted upon security or conditions required or imposed by the court.
9.5 EXECUTION AGAINST PROPERTY OF JUDGMENT-DEBTOR
This subject may be considered under two heads, namely, (i) attachment; and (i)
sale. We shall first state the rules relating to attachment, and then the rules
governing sale, because attachment precedes sale. Attachment is levied, and the sale
of the property attached is effected by an officer of the court under a warrant issued
from the court.
Before considering the rules relating attachment and sale, it is to be observed

that there are certain kinds of property which are not liable to attachment or sale in
execution of a decree. These are described under S. 60. Subject thereto, all saleable
property which belongs to the judgment-debtor, or over which he has a disposing
power which he may exercise for his own benefit, is liable to attachment and sale in
execution of a decree against him.
) Attachment:Artachment of propertybelonging to ajudgment-debtormay

be divided into two classes (a) movable; and (b) immovable.
(a) Artachment of movable property This is done in different ways
according to the nature of the property, and is stated in Rr. 43 to 53.
(b) Artachment of immovable propery: If the propertry is immovable, the
attachment is to be made by an order prohibiting the judgment-
debtor from transferring or charging the property in any way, and
prohibiting all other persons from taking any benefit from such
transfer or charge. The order is to be proclaimed at some place on or
adjacent to the property, and a copy of the order is to be affixed on a
conspicuous part of the property and then upon a conspicuous part
of the court-house as according to R. 54. In execution sale, notice to
judgment-debtor is necessary at every stage. Sale gets vitiated where
attachment of property and issuance of sale proclamation is done
without notice to judgment debtor." An attachment of an
immovable property effected in execution of a decree will continue
until the said property is sold and sale is confirmed." Word 'sold' in
R. 58, proviso, Cl. (a) means complete confirmed auction sale.
Objection to attachment of property is tenable even after auction
17
sale.
Section 64 states that where an attachment has been made, any private
transfer of the property attached, whether movable or immovable, is void
as against all claims enforceable under the attachment.
5. Mahakal Automobiles v. Kishan Swaroop Sharma, (2008) 13 SCC 113: AIR 2008 SC 2061
l6. GS. Mani v. B. Chinnasamy Naidu, AIR 2010 SC 3600 (3601): (2010) 9 SCC 513.
Kancherla Lakshminarayana v. Mattaparthi Shyamala, AlR 2008 SC 2069: (2008) 14 SCC 258 (266).
If any claim is preferred to any property attached in execution of a decree

by any person other than a party to the suit, the procedure prescribed by
Rr. 58 and 59 are to be followed. If any question relating to the execution
of the decree arises between the parties to the suit, or their representatives,
they are to be dealt with under S. 47.
If during the pendency of the attachment the judgment-debtor satisfies the

decree through the court, the attachment will be deemed to be withdrawn
as is given under R. 55, otherwise the court will order the property to be
sold under R. 64. If the properry attached is currency coins or currency
notes, the court may under R. 56, direct the same to be paid to the decree-
holder in satisfaction of his decree, for coin or currency-notes do not
require to be sold.
(i) Sale of attached property: If the property attached is movable property
which is subject to speedy and natural decay, the same may be sold at once
according to R. 43. Rule 76 states that every sale in execution of a decree
should be conducted by an ofticer of the court except where the property
to be sold is a negotiable instrument or a share in a corporation, which the
court may order to be sold through a broker.
After the propery is attached, and according to R. 66 the first step to be
taken by the court towards the sale thereof whether the property is
movable or immovable, is to cause a proclamation of the intended sale to
be made stating the time and place of sale, and specifying the property to
be sold, the revenue (if any)assessed upon the property, the encumbrances
(if any) to which it is liable, the amount for the recovery of which the sale
is ordered, and such other particulars as the court considers material for a
purchaser to know, in order to judge the nature and value of the propery.
Rule 68 states that no sale should take place until after the expiration of
acleast 15 days in the case of immovable propery and of at least seven days
in the case of movable propery calculated from the date on which a copy
of the proclamation has been affixed on the court-house of the judge
ordering the sale, unless the judgment-debtor consents in writing to the
sale being held at an earlier date. R. 68 speaks about the sale effected by
Receiver acting under Insolvency Act and after seeking permission from
Court to effect sale, it cannot be set aside for the sole reason that there is a
transgression of mandate of O. XXI, R. 68." The court may in its
discretion and in accordance with R. 69 adjourn the ale from time to
time, but if the sale is adjourned for a longer period than 30 days, a fresh
proclamation should be made, unless the judgment-debtor consents to
waive it.
18. T.V.R. Fund u. Official Receiver, 2009 (3) KLT 508 (510, 512) (DB).
Chapter 9 Execution ofDecrees |151
It is important to note that no holder of decree in execution of which property is
sold, can bid for or purchase the property without the express permission of the
Court.
9.5.1 Irregularity in the Conduct of Sale of Attached Property

Rule 90 specifies that no sale of immovable property can be set aside on the ground
of irregularity in publishing or conducting the sale, unless upon the facts proved, the
court is satistied that the party seeking to set aside the sale has sustained substantial
injury by reason of such irregularity. As regards movable propery, the rule is that a
sale of movable property is not liable to be set aside in any case on the ground of
irregularity in publishingg or conducting the sale. The only remedy open to the party
who has sustained any injury by reason of such irregularity is to institute a suit for
compensation against the person responsible tor the irregularity. Where there was no
proper publication of the sale in the daily newspaper and the auction has been
knocked down in favour of the close relation of the decree-holder for a much less
value of the disputed properry, the order of the executing Court and all the
consequent orders by the Courts below would be set aside." The mortgage can be
redeemed by paying the dues even after the sale has taken place but before the
confirmation of such sale. a" R. 90(3) would not be applicable where sale was held in
violation of mandatory requirements of the Rules 64 and 66 of O. XXI of the
Code. However, in accordance with R. 78 if such person be the purchaser himself,
the party sustaining the injury may sue for the recovery of the specific property, and
for compensation in detault of such recovery.
9.6 DISPoSAL OF SALE-PROCEEDS

The sale proceeds of property sold in the execution of a decree are to be applied in
the manner prescribed by S. 73, which deals with powers of Executing Court for
proportionate distribution ofassets of judgement-debtor amongst different decree-
holders
In V.T. Veerappa Chettiar v. P.S. Palaniappa Chettiar," it was observed that
"Section 73, Civil P. C. provides that where assets are sold by a Court and more
persons than one have before the receipt of such assets, made application to the Court
for the execution of the decrees for the payment of money passed against the same
judgment-debtor and have not obtained satisfaction thereof, the assets after deducting
the costs of realization shall be ratable distributed among all such persons. The
following conditions have to be satisfied before Section 73 Civil P. C. can be applied:
(1) The decree-holder claiming ratable distribution should have applied for
execution of his decree to the appropriate Court;
19. Pappu Ramireday v. Pappu Lakshmi Narayana Reddy, (2009) 16 SCC 346 (347).
20. EmbassyHotels Pvt. Ltd. v. Mis. Gajaraj O Co. ,2015 (1) RC.R.(Civil) 310.
21. PK. Kuruvilla v. Corpn.Bank, 2008 (1) KLT 604 (614) (DB): 2008 AIHC (NOc) 891 (Ker-DB).
22. V.T. Veerappa Chettiar v. P.S. Palaniappa Chettiar, AIR 1973 Mad 313.
(2) such application should have been made prior to the receipt of the assets
by the Court.
(3) The assets of which a ratable distribution is claimed must be assets held by
the Court.
4) The decree-holder should be holder of a decree for the payment of money.
(5) Such a decree should have been obtained against the same judgment-
debtor."
"It is a general principle of law that debts due to the State are entitled to
priority over all other debts. If a decree holder brings a judgment-debtor's
propertry to sale and the sale-proceeds are lying in deposit in Court, the
State may, even without prior attachment exercise its right to priority by
making an application to the executing Court for payment out. If
however, the State does not choose to apply to the Court for payment of
its dues from the amount lying in deposit in the Courr but allows the
amount to be taken away by some other attaching decree holder, the State
cannot thercafter make an application for payment of its dues from the
sale proceeds since there is no amount left with the Court to be paid to the
State. However, if the State had already effected an attachment of the
propery which was sold even before its sale, the State would be entitled to
recover the sale proceeds from whoever has received the amount from the
Court by filing a suit. Section 73(3) read with 73(2) C. P.C. contemplates
such a relief being granted in a suit."
contemplates such a relief being granted in a suit."
9.7 RESISTANCE TO DELIVERY OF POSSESSION TO PURCHASER

Subject to Rr. 97-104, where immovable property is sold in execution of a decree,
and the purchaser is resisted in obtaining possession of the property, he may make
an application to the court complaining of such resistance. The court will thereupon
fix a day for investigating the matter, and will summon the party against whom the
application is made to appear and answer the same.
9.8 COURTS BY WHICH DECREES MAY BE EXECUTED

Sections 38-39 provide that a decree may be executed either by the court which
passed it, or by the court to which it is sent for execution. A decree may be sent by
the court, which passed it for execution to another court in the following instances:
(1) if the judgment-debtor resides or carries on business within the local limits of the
jurisdiction of such other court; or (2) if the property sought to be attached or sold
in execution of the decree is situated within those limits; or (3) if the decree directs
23. Union of India v. Mk. Somasundaram Mils (P) Lid. AIR 1985 SC 407.
Chapter 9 ExecutionofDecrees |153
the sale or delivery of immovable property situate within those limits. A decree may
be sent for execution to another court either on the application of the decree-holder
or by the court suo motu, and once the decree is transferred for execution to another
court, the court which has passed the decree ceases to have the jurisdiction to
execute the decree and the transteree court gets all the powers to execute the decree
as if it had been passed by the transferee court, which shall decide all the questions
arising in execution proceedings.
9.9 PERCEPTS
A precept means a command or an order." A percept is given by the court which

passed the decree to a court which would be competent to execute the decree, and to
attach any property belonging to the judgment-debtor at once, with the underlying
object to prevent the judgment-debtor from alienating or otherwise dealing with his
property to the detriment of the decree-holder till proper proceedings are taken.
It always takes some time to transter a decree for execution to another court.
Section 46 specifies that if the decree-holder has reasons to apprehend that the
judgment-debtor will dispose of the property before "it is attached by the other
court, he may apply to the court which passed the decree to issue a precept to the
other court to attach the property at once. Whenever such precept is issued, the
court to which it is issued, should proceed to attach the property.
The attachment under a percept remains in force for a period of two months,
unless the time is extended by the court which has passed the decree.
9.10 QUESTIONS TO BE DETERMINED BY COURT EXECUTING

DECREE
Section 47 provides that all questions arising between the parties to the suit in which
the decree was passed, or their representatives, and relating to the execution,
discharge or satisfying of the decree should be determined by the court executing the
decree on the application of parties, and not by a separate suit. The ambit and scope
of the provisions in the Code, dealing with questions to be determined by the court
executing the decree is very wide and comprehensive. Exclusive jurisdiction has been
conterred on the executing court in respect of all matters relating to execution,
discharge or satisfaction of decree arising between the parties. Once a decree is
passed in a suit, it is the executing court which will deal with and decide all
questions in executing proceedings and not by filing a suit." This provision has been
enacted for the beneficial purpose of eliminating unnecessary litigation by allowing
parties before the court to obtain adjudication of all such questions and provides an
inexpensive and expeditious remedy."
24. ConciseOxford Dictionary, 1990, p. 937.

25. Merla Ramanna v. Nallaparaju, AlR 1956 SC 87; Desh Bandhu Gupta v. NL Anand (1994) 1 SCC 131.
26. Gangabai Gopal Das Mohata v. Ful Chand, AIR 1997 SC 1812.
Whether a person is a representative or not can be decided by applying the

following two tests:
() Whether any portion of the interest of the decree-holder or of the
judgment-debtor, which was originally vested in one of the parties to the
suit, has by an act of the parties or operation of law, vested in the person
who is sought to be treated as a representative; and
ii) If there has been devolution of interest whether, so far as such interest is
concerned, that person is bound by the decree."
A decision determining any such question is appealable as decree under S. 2(2).
9.11 PROCEDURE
Rules 105-106 deal with the procedure for hearing in execution matters.
Execution of "Cross-Decrees"
O. XXI R. 18 CPC provides for the ecution ofcross-decreces. The following
conditions must be satisfied to attract this rule:
) thecross-decreeshavebeenpassedin separatesuits;
(i) thecross-decreesare capable of execution; and
(ii) there are two existing final decrees, one in favour of decree-holder and
other in favour of judgment-debtor.
"It is true that effect cannot be given to the set off until applications are made to
the Court for the execution of the two decrees. The right nevertheless is there, and
this right of the holder of one decree cannot be defeated by an attachment in favour
of a third party of the other decree made after the right of set off hasarisen." "Even
if the cross-decrees are not mutual in all respects still the petitioner is entitled to
equitable set-off provided it can be equitably worked out without detriment to any
of the parties."4
27. State ofWest Bengal v. Partha Basu, (1997) 2 CHN 387; Jagdish Lal v. ME Periera, AlR 1977 Del 12.
28. M.L.M. Mahalingam Chettiar v. Ramanathan Chettiar, (1940) 42 Bom LR 1166.
29. P. Venkatavaradan v. Lakshmi Ammal and Ors., AlR 1982 Mad 5.
CHAPTER 10
APPEALS FROM ORIGINAL DECREES
10.1 APPEALS FROM ORIGINAL DECREES

The expression 'appeal' has not been defined in the Code. It is an application or
petition to a higher court for a re-consideration of the decision of a lower court. It
is a proceeding for review to be carried out by a higher authority of a decision given
by a lower one. In other words, any application by a party to an appellate court,
asking to set aside or reverse a decision of a subordinate court, is an appeal within
the ordinary acceptation of the term. °An appeal is a creature of statute, and the
right to appeal is neither an inherent nor a natural right.
A person aggrieved by a decree is not entitled as of right to appeal from the decree.
The right to appeal must be given by statute. Section 9 confers on a litigant,
independent of any statute, a right to institute a suit of a civil nature in a court of
law. So he has a right to apply for execution of a decree passed in his favour, but he
has no right to appeal from a decree or order made against him, unless the right is
clearly conferred by statute. "Unless a right of appeal is clearly given by a statute, it
does not exist. Whereas a litigant has independently of any statute a right to institute
any suit of a civil nature in one court or another." Section 96 of the Code gives a
right to a litigant to appeal from an original decree; S. 100 gives him a right to
appeal from an appellate decree in certain cases; S. 109 gives him in a right to appeal
to the Supreme Court in certain cases; S. 104 gives him a right to appeal from orders
as distinguished from decrees.
An appeal from an original decree is called a first appeal. First appeal is a valuable
right and the parties have a right to be heard, both on question of law and fact and
decided by giving reasons in support of the findings.
1. Chamber's 20th Century Dictionary, 1997 p. 59.

2. Sita Ram u.State of Utar Pradesh, AIR 1979 SC 745.
3. Nagendra Nath Dey v, Suresh Chadra Dey, AIR 1932 PC 165.
4. Zair Husain v.KhurshedJan, (1906) 28 All. 545.
5. Madhukar v. Sangram, (2000) 2 LRI 1126: AIR 2001 SC 2171.
An appeal under S. 96 lies only from a decree. A party is not entitled to file against
some of the observations or findings which neither amount to a decree, nor operate
as res judicata. Where a suit is dismissed, the defendant against whom an adverse
finding might have come to be recorded on some issue has no right to appeal and
these findings shall not operate as res judicata against him.' An appeal from an
appellate decree is called a second or special appeal. It is only in a limited number of
cases that appeals are allowed from appellate decrees, and that appeals are allowed to
the Supreme Court. As regards appeals from original decrees, it is provided in the
Code or by any other law. Thus, S. 96 makes it clear that no appeal lies from a
decree passed by the court with the consent of parties. Where a decree cannot be
said to be a consent decree the bar under S. 96(3) of the code would not apply.
However, an appeal may lie from an original decree which is passed ex parte, ie,
without hearing one of the parties. No appeal lies against the decree passed by small
cause court, if the value of the subject-matter does not exceed Rs. 10,000 except on
a question of law. No appeal lies from the award of the Lok Adalat as it is an order
under the consent of the parties, and is deemed to be a decree of the civil court."
Ordinarily, only a party to the suit adversely affected by a decree or any of his
representatives in interest may file an appeal. " However, a person who is not a party
to the decree or order may prefer an appeal with the leave of the court, if he is
bound or otherwise prejudicially affected by such decree or order, as in such an
eventuality he may be said to be an 'aggrieved person." If a third party establishes
that he is interested in the welfare of the trust, he would be an aggrieved party'
having locus standi to prefer an appeal."
On the first day of hearing at the admission stage, if the appellate court finds
arguable points in appeal, then notices shall be issued to the respondents, fixing a
date for hearing of the appeal. And if the appellate court finds no merit in the
appeal, then it shall dismiss the appeal even without issuing notices to the
respondents." Conditional admission of an appeal is not envisaged by S. 96 and an
appeal cannot be dismissed for failure to comply with that condition." The
appellate court may take note of subsequentevents.
A right of review and right to appeal stand on different footings although some
grounds may be overlapping if a review is granted, the decree stands modified but
such modification of a decree is not an ancillary or a supplemental proceeding so as
to be revived upon setting aside the decree granting review."
6. Banarsi u. Ram Phal, AIR 2003 SC 1989: (2003) 9 SCC 606.

7. Deva Ram v. IshowarChand, (1995) 6 SCC 733: AIR 1996 SC 378.
8. Govt. ofAP u. M Pratima Reddy, 2010 (1) ALT 256 (271) (DB).
9. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1 July 2002), s. 96(4).
10. PT Thomos v. Thomas Job, AlR 2005 SC 3575: (2006) 142 PLR 397.
11. State ofPunjab (Haryana) v. Amar Singh, AIR 1974 SC 994: (1994) 2 SCC 70.
12. Adi Pherozshah Gandhi v. HM Seervai,AdvocateGeneral of Maharashtra Bombay, AIR 1971 SC 385.
13. Swami Shankaranand v. Mahant Sri Sadguru Sarnanand, AIR 2008 SC 2763 : (2008) 14 SCC 642
(644-46).
14. Bishnu Bhagat v. Puhpa Devi, AIR 2006 Jhar 117.
15. Mfof Devi Theatrev. Vishwarnath Raju, AIR 2004 SC3325.
16. DDA u. Joginder S Monga, (2004) 2 SCC 297: AIR 2004 SC 3291.
17. Rekha Mukherjee v. Ashish Kumar Das, AIR 2005 SC 1944 : (2005) 3 SCC 427.
Chapter 10 Appealsfrom Original Decrees
157
An appeal during the pendency of the review petrition is not maintainable.
Against an ex-parte decree, the aggrieved party can take the recourse to two
proceedings, file an appeal and file an application for setting aside the order under
O. IX, R. 13 simultaneously. But in the event the appeal is dismissed, a petition
under O. DX, R. 13 would not be maintainable. However, where an application
under O. IX, R. 13 is dismissed, it would be open to the aggrieved party to argue on
the merits of the suit so as to enable him to contend that the materials brought on
record by the plaintiff were not sufficient for passing a decree in his favour or the
suit was otherwise not maintainable." The two grounds cannot be raised in a first
appeal against the ex parte decree under S. 96. In the first appeal under S. 96, the
defendant on the merits of the suit can contend that the materials brought on record
by the plaintiff were not sufticient for passing a decree in his favour or that the suit
was not otherwise maintainable."
The right to appeal can be waived by a party under a legal and valid agreement,
and if a party has accepted the benefits under the decree, he is estopped from
challenging its legality." However, an agreement by the next friend of a minor not
to appeal is not binding on the minor. The right of appeal also stands destroyed if
the court to which the appeal lies is abolished altogether, without any forum being
substitutedin its place2
The court hearing an appeal, has the power to implead a person as respondent
who has not been so impleaded where it appears to the court that he may be a
person interested in the result of the appeal."*
In case where preliminary and final decree are required to be passed and if a party
aggrieved by preliminary decree does not prefer an appeal, he cannot be permitted to
raise disputes about correctness of such decree in any appeal against the final decree.
An appeal is a continuation of suit proceedings. The appellate court can re-

examine questions of fact and law and may even re-appreciate evidence. The powers
of the first appellate court are co-extensive with those of the civil court of the
original jurisdiction. However, there may be certain self-imposed restraints in the
exercise of such powers. However they are discretionary and do not fetter
jurisdiction of the courts. Unlike revision of the review where limited grounds of
interference are available, the appellate proceedings offer a much wider scope in
deciding about correctness of the judgments of the courts below. First appeal may be
filed on a question of fact or on a question of law or on a mixed question of fact and
law. In first appeals the court is free to decide all questions of fact and law which
8. Ibid.
19. Bhanu Kumar Jain v. Archana Kumar, AIR 2005 SC 626: (2005) 1 SCC 787.
20. Rasiklal M. Dhariwal v. M.S.S. Foodl"roducts, 2009 (2) MPLJ 329 344) (DB)
21. Dexter Ltd v. Hill Crest Oil Co., (1926) 1 KB 348; Ramesh Chandra Chandhok v. Chuni Lal Sabharwal
hrough LR, AIR 1971 SC 1238.
22. Rhodes v. Suithenbank, (1889) 22 QBD 577.
23. Stareof Punjab (Haryana) u. Amar Singh. AIR 1974 SC 994: (1974) 2 SCC 70.
24. Code of Civil Procedure, 1908, O. XLI, R. 20().
arise in the case." In determining the appellate forum, the value of the subject-
matter of the suit is material, and not the claim in appeal."
10.2 COURT OF APPEAL
The court to which appeal lies is governed by local law."
10.3 MEMORANDUM OF APPEAL
If your client is aggrieved by a decree, and instructs you to file an appeal on his
behalt, you have to draw a memorandum of appeal, setting forth the grounds of
objection to the decree appealed from. These grounds are to be set forth without any
argument or narrative, and they are to be numbered consecutively. Be carcful to see
that every ground of objection is set forth in the memorandum; for if any ground is
omitted the appellant cannot urge or be heard in support of it except by leave of the
court, and such leave is not granted as a matter of course. The object of the rule is to
give notice to the other party to the appeal, ie, the respondent, of the case that he
has to meet at the hearing of the appeal. It is not to preclude the appellate court
from deciding the appeal on other grounds.
The appellate court has the power under O. XLI, Rr. 1-2, to rest its decision on (1)
grounds set forth in the memorandum of appeal; or on (2) grounds taken by leave of
the court; or on (3) any other ground, provided that the party who may be affected
thereby has had a sufticient opportunity of contesting the case on the ground.
In drawing the memorandum of appeal one must refer to the judgment, the issues,
and the findings thereon. The issues and the findings thereon will give a clue as to the
grounds that should be set forth in the memorandum. The memorandum of appeal
must be accompanied by a copy of the judgment. The following will be the form of
the memorandum of appeal in the hypothetical suit for specific performance in which,
we have assumed," a decree has been passed against the defendant for Rs 5,000:
Form of Memorandum of Appeal

In the High Court of Judicature at Bombay
In appeal from its Original Civil jurisdiction
Suit No....... of 1914
AppealNo... of 1914
CDetc. ... Appellant and defendant
Vs
ABetc.... Respondent and plaintiff
25. Manick Chandra Nandy u. Debdas Nandy & Ors, AIR 1986 SC 446: (1986) 1 SCC 512.
26. Gopal Krishna v. Meenakshi, AIR 1967 SC 155: 1967 (15) BLJR 222.
27. See ch. 2, under the heading "Courts in other parts of India... appellate jurisdiction.
28. See ch. 8.
Chapter 10 Appealsfrom Original Decrees 159
The defendant abovenamed being aggrieved by the decree passed by... on the
day of 1914 in the above suit appeals from the saiddecree upon the following
among other grounds, namely:
1. That the learned Judge erred in holding that the sale was not to be
completed on the 1 May 1914.
2. That the learned Judge ought to have held that the sale was to be
completed on the said date, and that time was the essence of the contract.
3. That the learned Judge erred in holding that the plaintiff was ready and
willing to perform his part of the contract.
4. That the learned Judge erred in holding that the contract was not
rescinded by mutual consent of the plaintiff and the defendant.
5. That the learned Judge ought to have held that the plaintiff was not ready
and willing to pertorm his part of the contract, and that the contract was
subsequently rescinded by mutual consent.
6. That the learned Judge erred in holding that the plaintiff tendered Rs
2,00,000 as alleged by him.
7. That the learned Judge ought to have held that the plaintiff did not tender
Rs 2,00,000 or any part thereof to the defendant.
8. That the learned Judge ought not to have awarded Rs 5,000 or any sum to
the plaintiff as damages, and that he ought to have dismissed the plaintiff's
suit.
9. That the decision of the learned judge is against the weight of evidence in
the case, and that it is against justice, equity and good conscience.
Note-This paragraph is usually added at the end in the belief that it covers all
grounds of objection not expressly taken in the memorandum, but the idea is
erroneous.
Besides the above grounds, which are based on the issues, one may set torth such
grounds as may suggest themselves on a perusal of the judgment.
Suppose that there were two defendants in the hypothetical suit," both jointly
entitled to the property, and the decree was passed against them both on the same
grounds. In the case either defendant could appeal from the whole decree, and the
appellate court may reverse the decree in favour of borth.
According to O. XLI, R. 1(3), after the memorandum of appeal is ready, it is to be

presented to the court along with a copy of the decree and the judgment. The
memorandum will be admitted, if it is in proper form. Where the appeal is preferred
against a decree for payment of money, the appellant shall deposit the disputed
amount in court or furnish such other security within the time granted by the court.
29. See ch. 8.

If there is any delay in presenting the appeal beyond the prescribed period of
limitation, it shall be accompanied by an application for condonation of delay
supported by an affidavit showing sufficient cause why the appeal could not be
lodged within the prescribed period of limitation. Such application shall be decided
prior to hearing and decision of appeal itself. The provision is, however, directory,
and not mandatory. If the memorandum of appeal is filed withour being
accompanied by an application for condonation of delay, the consequence is not
necessarily fatal and the defect is curable." Where an appeal is filed alongwith an
application for condonation of delay in filling the appeal, the dismissal of appeal on
the refusal to condone the delay is nevertheless a decision in appeal. "
Delay in filing appeal.- Appeal not accompanied by an application for condoning

the delay. Consequences cannot be fatal. If the Appellant subsequently files an
application to condone the delay before the appeal is rejected the same should be
taken up along with the already filed memorandum of appeal. Only then the court
can treat the appeal as lawfully presented." It also provides that no stay of execution
of decree shall be granted till the application for condonation is decided. However,
the last part of the rule has been rightly held to be directory. In an appropriate
34
case, court may stay execution pending decision of such application.
10.4 STAY OF EXECUTION

After the appeal is filed, the appellate court can be applied to, if the client so
instructs, for a stay of execution of the decree appealed from. The court may or may
not grant the application. It may grant the application if it is satisfied that there has
been no unreasonable delay in making it, that substantial loss may result to the
appellant unless execution is stayed, and that the appellant has given security for the
due performance of such decree as may ultimately be binding upon him. Mere
pendency of appeal is no ground to stay execution of decree. It also does not operate
as stay automatically. The High Court while granting stay of execution of the decree
must take into consideration the facts and circumstances of the case before it. It is
not to act arbitrarily. If a stay is granted, sufticient cause must be shown which
means that the materials on record were required to be pursued and reasons are to be
assigned. Such reasons should be cogent and adequate." There has to be a specific
order staying the execution of the decree. However, if the aforesaid conditions are
satistied, a stay may be granted even ex parte. It is open for the court to impose any
condition as it may think fit and proper in the facts and circumstances of the case
while granting stay of execution. Usually, it is granted on conditions of deposit or
furnishing of security or otherwise. It has been held that in appropriate cases, a stay
30. Srateof Madhya l'radesh u.Pradeep Kumar, (2000) 7 SCC 372: 2000 (6) Scale 347.
31. ShyamSunder Sharma v. Panna Lal Jaisural, AIR 2005 SC 226.
32. H. DohilConstructionsCo. (P) La. v. Nahar Exports Ltd., 2015 (1) SCC 680
33. Dijabar d Anor v. Sulabha d Os., AIR 1986 Ori 38, AIR 1987 Guj 205.
34. Code of Civil Procedure, 1908, O. XLI, R. 3A(3).
35. MaluaStrips(P) Lid. uJyoty Ld, (2009)2 SCC 426 (431): AIR 2009 SC 1581.
36. Mgt of Devi Theatrev. VishwanathRaja, (2004) 7 SCC 327 : AIR 2004 SC 3325.
Chapter 10 Appealsfrom Original Decres
161
may be granted even without any condition for security." On the other hand, there
are decisions holding that furnishing security is mandatory. No stay can be granted
without such security. Though the language used is quite empathetic and
imperative, it appears that it would be proper to regard such provisions as directory.
The court must have the power to dispense with the requirement of security if it is
likely to lead to injustice or extreme inconvenience.
If the appeal has not yet been filed, and the client has reasons to apprehend that
the other side will apply for execution of the decree, then the client's lawyer may
apply to the court which passed the decree for a stay of execution.
Where an order is made for execution of the decree one may apply on behalf of
the appellant to the court which passed the decree for an order requiring the other
side to give security for restitution of the property that may be taken in execution of
the decree, and the court should make the order if sufficient cause is shown by the
appellant; or the appellate court may for like cause direct the court which passed the
decree to take such security.
10.5 SECURITY FOR COSTS

The appellate court may in its discretion demand from the appellant,
security for the costs of the appeal, or of the original suit, or both. In many cases it is
provided by the rules of the court that the appellant should deposit a fixed sum of
money as security for the costs of the appeal immediately after the appeal is
admitted.
10.6 NOTICE OF DAY FOR HEARING APPEAL

Notice of the day fixed for the hearing of the appeal has then to be served upon the
respondent in the manner provided for the service of summons.
10.7 CROSS-APPEAL AND CROSS-OBJECTIONS

So far the position as regards the hypothetical suit is as follows. The suit was brought
by AB against CD for specific performance, and, in the alternative for damages. The
court of first instance refused specific performance, but awarded damages to AB. CD
preferred an appeal from the decree in so far as it awarded damages against him. AB
apparently was content with the decree, though specific performance was refused to
him. AB has now received a notice through the court informing him that CD has
preferred an appeal from the decree. Now is the time for him to consider whether he
should not as well take his chance and prefer an appeal from the decree in so far it
refused specific performance to him. If he decides to prefer an appeal, and does
prefer it, his appeal will be called a cross-appeal. However, it may be that the time to
file a cross-appeal has expired, for every appeal has to be filed ithin the limitation
37. State of Gujarat v. Central Bank of India, Ahmedabad Ors., AIR 1987 Guj 113, reversed in Central
Bankof India v. Stae of Gujarat o-Ors., AIR 1987 SC 2320 on other point.
period prescribed by law. If the time has expired, AB may file what are called cross-
objections; right to file cross-objections is a substantive right." These may be filed at
any time within one month from the date of the service of notice upon him. In fact
under the present Code, AB does not run any risk if, instead of filing a cross-appeal,
he files cross objections. Under the Code of 1882 it was held that if the original
appeal was withdrawn or dismissed for default, ie, non appearance of the appellant
at the hearing, the cross-objections could not be heard. It is no longer so under the
present Code. Even when an appeal is withdrawn or dismissed for default, the court
has to hear the cross-objection and dispose it of. However, if the appeal is dis-
missed as time-barred or has abated or is held to be not maintainable, the cross-
objections cannot be heard on merits as they are contingent and dependent upon
the hearing of the appeal." Cross-objection would also be dismissed as not
maintainable, where appeal is found incompetent and not maintainable."
Furcher, while dismissinga defendant's appeal, the appellate court cannot modify
the decree in favour of the respondents in the absence of cross-appeal or cross-
objections." Let us now assume that AB decides to file cross-objections. The cross-
objections are to be in the form of a memorandum and they must comply with the
rules relating to the memorandum of appeal. No court fee is payable on cross-
objections. The following will then be the cross-objections of AB.
Whereas the defendant abovenamed has preferred an appeal to the court

at.. ...fromthe
decreeof ..
In suit No. .. .of 1914, dated the ....day of 1914 and whereas notice of
the day fixed for hearing the appeal was served on the plaintiff abovenamed on the
day of ...1914, the plaintiff abovenamed files this memorandum of cross-
objections under Rule 22 of Order XLI of the Code of Civil Procedure, 1908, and
sets for the following grounds of objections to the decree appealed from, namely:
1. The learned Judge erred in holding that the plaintiff was not entitle
specific performance of the contract referred to in the plaint.
2. The learned Judge having found all other issues for the plaintiff ought to
have decreed specific performance of the said contract.
Ordinarily, cross-objections may be filed against the appellant. However, in excep-

tional circumstances, respondent may file cross-objections against co-respondents,
and the appellate court has the power to give whatever order it thinks fit not only
between the appellant and the respondent, but also as berween respondent and co-
respondent.
38. See the Limitation Act, 1963.

39. Supt Engineer v. B Subba Reddy, AIR 1999 SC 1747: (1999) 4 SCC 423.
40. Hari ShankerRastogi v. Sham Manohar, (2005) 3 SCC 761: (2005) 2 SCR 950.
41. NJayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, AIR 1979 SC
1393.
42. MCD v.InternationaS
l ecuriy -IntelligencA
egeneyLtd, AlR 2003SC 1515.
43. Banarsi v. Ram Phal, AIR 2003 SC 1989.
Chapter 10 Appeas from OriginalDecrees
163
After the cross-objections are filed, a copy thereof should be sent by the res-
pondent to the appellant. The cross-objections are heard as a rule after the original
appeal. The respondent may support the decree on any ground in respect of which
findings adverse to the respondent are recorded against him. If the judgment is in
favour of the respondent, but some of the findings are decided against the
respondent, he is entitled to contend that such adverse findings are erroneous even
without raising any cross objection." He can also file cross objection in respect of an
adverse finding even though the judgment and decree are in his favour on the basis
of other findings under O. XLI, R. 22.
10.8 HEARING OF THE APPEAL

On the day fixed for the hearing, the appellant will be heard in support of the
appeal. The court may then dismiss the appeal at once without calling upon the
respondent for a reply. If this is not done, the respondent is to be heard against the
appeal, and in such case the appellant is entitled to a reply. After this is done, the
appellate court may:
(a) determine the case finally, if the evidence upon the record is sufficient to
enable it to pronounce judgment. The appellate court has power to pass
any decree or make any order which ought to have been passed or made. It
can even pass further other decree or order as the case any require. Such
power exists notwithstanding the fact that the scope of appeal may be
narrow. It can be exercised in respect of any party who has not preferred
any appeal for objection. Where two or more decrees are passed in one
suit, it has power even if appeals in respect of some decrees are not
preterred at all. When the appellate court passes the decree, the original
decree merges into it and such appellate decree shall be final and binding.
The powers are very wide, but as a general rule, reliefs are founded on
pleadings made by parties. Such powers are to be exercised with restraint
and only in exceptional cases."" The decree or order which ought to have
been passed or made mean those which ought in law to have been passed
or made. The final determination of the case may result in conftirmation,
reversal, modification or substitution of original decree or order. 'Sitting as
a court of first appeal, it is the duty of the High Court to deal with all the
issues and the evidence led by the parties before recording its findings."
(b) remand the case to the court from whose decree the appeal is preferred, if
that court has disposed of the suit upon a preliminary point, and the
appellate court holds that the decision of that court on the point is wrong.
Appellate Court has power to remand the case, but only in rare situations,
a case should be remanded e.g. when the trial court has disposed of a suit
44. Shanti Devi v. Nand Kishore, AIR 2004 P&cH 46: (2004) 136 PLR 377..
45. RameshwarPrasad & Os. v. Shambehari LalJagannath Ó Anor,AIR 1963 SC 1901.
46. GiasiRam o Os. v. Ram Lal d Ors, AIR 1969 SC 1144;Koksngv. Deokabai, AlR 1976 SC 634.
47, Shasidhar v. Ashwini Uma Mashad,AlR 2015 (SC) 1139.
164 Mulla The Key io Indian Practice Chapter 10
on a preliminary issue without recording evidence and giving its decision

on the rest of the issues." After the case is remanded, the lower court
should proceed with the trial of the suit on the other issues or such issue as
the appellate court may direct it to try and then determine the case. Under
R. 23A of 0. XLI introduced in 1976, the power to remand was widened.
Even when the trial court has decided the suit otherwise than on a
preliminary point and when decree reversed in appeal, if re-trial is
considered necessary, it appellate court. The
can be so ordered by the
appellate court should not give any conclusive finding in matters it
remands for further consideration because after a conclusive finding there
remains nothing to be decided by the court to which the matter is
remanded. Further, it is not open to the appellate court to issue
directions to the remand court as to how the proceedings after remand are
to be conducted before the trial court." Appellate Court has power to
remand the case, but only in rare situations, a case should be remanded
e.g. when the trial court has disposed of a suit on a preliminary issue
without recording evidence and giving its decision on the rest of the issues,
but it is not so in the present case. Remand makes the parties to wait for
the final decision of a case for the period which is avoidable."An order of
remand is an interlocutory order, which does not terminate the
proceedings and can be challenged by the aggrieved party after the final
judgment.* "Remanding a case for re-appreciation of evidence and fresh
decision in the matter is nothing but harassment of the litigant. The
unnecessary delay in final disposal of a lis, shakes the faith of litigants in
the court."
(c) frame issues and refer them for trial to the court from whose decree the
appeal is preferred, if that court has omitted to frame or try any issue
essential to the right decision of the suit." The lower court should then
proceed to try the issues, and then return to the appellate court, the
evidence on those issues together with its findings thereon and the
b reasons therefor. Either party may then file in the appellate court, a
memorandum of objections to any finding, and that court will then
proceed to determine the appeal.
(d) take additional evidence or require such evidence to be taken by the court
from whose decree the appeal is preferred, if () that court has refused to
admit evidence which ought to have been admitted; or (i) the appellate
court requires any document to be produced or any witness to be
examined to enable it to pronounce judgment or for any other substantial
48. ZarifAhmad (D) v. Mohd. Faroog, AIR 2015 (SC) 1236.

49. Ravinder Kaur v. Ashok Kumar, AIR 2004 SC 904: (2003) 8 SCC 289.
50. Kanchusthabam Satyanarayana v. Nandusi Atchuto Ramayya, AIR 2005 SC 2010.
51. Zarif Abmad (D)u. Mohd. Farooq,AIR 2015 (SC) 1236.
52. angal Prasad Tamoli v. Navedswar Mishra, AIR 2005 SC 1964.
53. Lisamma Antonyv. Karthiyayani, 2015 (2) R.C.R. (Civil) 575.
54. REMCO. Indi Workers House Bldg Co-op Society v. Lakshmesha, AIR 2003 SC 3167.
Chapter 10 Appeas from OriginalDecrees 165
cause; or (ii) the party who wants to produce additional evidence could
not produce it despite exercise of due diligence or it was not within his
knowledge before the decree was passed.
An additional evidence may be permitted to be produced in appellate court when
there is a substantial cause. "Appellate Court may call for additional evidence where
the appellate court may require any document to be produced or any witness to be
examined to enable it to pronounce judgment, or for any other substantial cause.
Further held, it is the duty of the court to come to a definite conclusion that it is
really necessary to accept the documents as additional evidence to enable it to
pronounce the judgment. The authority and jurisdiction of the appellate court to
let in fresh evidence is restricted to the purpose of pronouncement of judgment in a
particular way." The court is in-bound under the circumstances mentioned under
O. XLI, R. 27 to permit additional evidence and the parties are not entitled as of
right to the admission of such evidence and the matter is entirely in the discretion of
the court.° When an application for reception of additional evidence under O. XLI,
R. 27 of the code is filed by the parties, it is the duty of the high court to deal with
the same on merits so as to find out whether the documents or evidence sought to
be adduced have any relevance/bearing in the issues involved. Additional evidence
can be adduced in one of three situations, namely, (a) where the trial court has ille-
gally refused the evidence although it ought to have been permitted, (b) where the
evidence sought to be adduced by the party was not available to it despite the
exercise of due diligence, (c) where additional evidence was necessary in order to
enable the appellant court to pronounce the judgment or any other substantial cause
of similar nature.Inadvertence or lack of proper legal advice is not a ground to
admit additional evidence in appeal.
It would be proper to consider the application for production of additional evidence

alongwith the appeal. However, it can be considered independentdly. An appeal in
which an application under R. 27 of O. XLI of the Code has been filed should be
decided by appellate court alongwith application for acceptance of additional evidence
under O. XLI, R. 27 of the Code. The rejection of such an application would not be
proper. Where a party is permitted to produce additional evidence, the other party
shaa
lllsobegiveonpportunitytoadduceevidencien rebuttal.0s oq i
Where the appellate court directs additional evidence to be taken by the lower court,
such court should proceed to take the evidence and send it when taken to the appellate
9030 ATHENE
55. Shalimar Chemical Works Ltd. v. Surendra Oil & Dal Mill, (2010) 8 SCC 423 (430): (2010) 10 SCR
05.
S6. Surijit Singh v. Gurwant Kaur, 2015 (1)SCC 664.
57. NKamalam v. Ayyasamy, AR 2001 SC 2802.
58. Mahair Singh v. Naresh Chandra, AIR 2001 SC 134: 2000 (7) Scale356.
59. Malyalam Plantations Ltd. u. State of Kerala, AIR 2011 SC 559 (563) : (2010) 13 SCC 487 (493), see
also NE Rly Adm. v. Bhagwandas, (2008) 8 SCC 511.
60. Haryana State Industrial Development Corpn. v. Cork Manufacturing Co., AIR 2008 SC 56.
61. Eastern Equipment o Sales Lta. v. Yash Kumar Khanna, AlR 2008 SC 2360; see also Vimal Chand
Ghevarchand Jain v. R Eaknath Jadoo, (2009) 5 SCC 713.
62. Jaidev Tripathy v. Dilip Kumar Panda, AlR 2004 Ori 194:98 (2004) CLT 295.
court. The power to take additional evidence is confined to the grounds mentioned
above. By a judicial process, it cannot be converted into a power to order fresh trial or
allow parties to fill up the lacuna or defect. It cannot be exercised to help a party who
has failed to exercise due diligence during original trial. Where some inherent lacuna
or defect becomes apparent on an examination of evidence, additional evidence may
be allowed." Where the court would be able to pronounce judgment on materials
available before it, it cannot admit additional evidence. It is the court which must
require further evidence in order to enable it to pronounce judgment. The third
ground on which additional evidence can be admitted was added by way of amend-
ment in 1976. It seeks to expand the powers to receive additional evidence. While
there is nothing objectionable in principle in admitting evidence which could not be
produced or was not within knowledge before decree, such provision must be strictly
construed and stringent requirement of proof must be insisted upon. It should not be
allowed to convert appellate proceedings into further original proceedings. For the
adduction of additional evidence, the jurisdiction of the appellate court is to be
exercised not only when Cl. (a) or Cl. (aa) of sub-rule (1) of R. 27 of O. XLI of the
Code is attracted but also when such a document is required by the appellate court
itself to pronounce judgment or for any other substantialcause.
The appellate court has the power to direct that a person who was a parry to the
suit, but not made a party to the appeal, be made a respondent, if it appears that he
is interested in the result of the appeal. It has also the power, as to which there was
some doubr under the old Code, to pass a decree in a case like the following: A
claims a sum of money from X or Y, and in a suit against them both obtains a decree
against X. X appeals and A and Yare respondents. The appellate court decides in
favour of X holding that X is not liable to A. It has power to pass a decree againstY,
though A did not prefer any cross appeal or file any cross-objections complaining of
dismissal of the suit against Y. Subject as aforesaid the appellate court has the same
powers as the courts of original jurisdiction in respect of suits instituted therein as
specified under S. 107.
It is important to note before leaving this subject that S. 99 provides that no

decree should be reversed or substantially varied, nor should any case be remanded
in appeal, on account of any misjoinder of parties or causesof action, or on account
of any error or irregularity in any proceedings in any suit, not affecting the merits of
the case or the jurisdiction of the court by which the suit was tried.
10.9 JUDGMENT AND DECREE

The judgment of the appellate court should state the points for determination,
decision thereon, reasons for the decision, and the relief to which the appellant is
entitled. The appellate court should state its own reasons; thus it is not enough to
63. Venkataramaiah v. A Seetharama Redy, AIR 1963 SC 1526; Arjun Singh v. Kartar Singh &Ors., AlR
1951 SC 193.
64. Lachhman Singh v. Hazara Singh, (2008) 5 SCC 444 (446-447): 2008 (8) Scale 220.
Chapter 10 Appealsfrom Original Decrees 167
say in the judgment, I concur with the decision the Munsiff has given on each
point. If this is done, the judgment will be set aside by the high court in the second
appeal. After the judgment is pronounced, the decree will be drawn up.
10.10 CONSEQUENCE OF NON-APPEARANCE OF PARTIES
The rules relating to the non-appearance of parties at the hearing of an appeal are
very much the same as those relating to the non-appearance of parties at the hearing
of the suit.
*.
..
.
.*:
-
65. Seech. 8 and Code of Civil Procedure, 1908, O. XLI, Rr. 17, 19 and 21.
CHAPTER 11
APPEALs FROM APPELLATE DECREES OR
SECOND APPEALS
11.1 SECOND OR SPECIAL APPEALS
A party aggrieved by a decree passed by an appellate court may prefer an appeal to

the high court to which the appellate court is subordinate. An appeal to a high court
from a decree of an appellate court subordinate to it is called a second or special
appeal. Such an appeal is allowed on the ground that the case involved a substantial
question of law.' Second appeal is not a third trial on facts or one more dice in the
gamble. The existence of a substantial question of law is the sine qua non for the
exercise of jurisdiction under S. 100 of the Code. Such an appeal may also lie from
an ex parte decree. The memorandum shall state the substantial question of law. The
high court must also formulate such question if it is satisfied that a substantial
question of law is involved." The high court cannot proceed to hear a second appeal
without formulating the substantial question of law involved in the appeal:" failure
to do so would vitiate the adjudication itself." However, during the course of hear-
ing, the high court may hear the appeal on a question not formulated earlier if
deemed fit.
No second appeal lies except on the ground mentioned above. The conditions
mentioned in the section must be stricly fulfilled and no court has the power to add
to or enlarge those grounds.
1. Section 100 as amended in 1976.

2. Gurdev Kaur v. Kaki, AIR 2006 SC 1975: (2007) 1 SCC 546.
3. Commr. of Hindu Religious & Charitable Endowment v. P. Sharmugama & Ors AIR 2005 SC 770:
(2005) 9 SCC 232.
4. Mohd Hadi Husain v. Abdul Hamid Chaudhary, (2000) 10 SCC 248; R Laksbmi Narayan v. Santhi,
(2001) 4 SCC 668.
5. Hubli Dharwar Municipal Corpn v. HS Mohd Khan, (2002) 2 SCC 109: (2002) 2 SCC 109.
. BashirAhmedv. AbdulRahman,AlR 2004 SC3284.
7. Radha Amma and anor v. C Balakirsbnan Nair and Ors., AIR 2006 SC 3343
Thus, a second appeal does not lie on the ground of an erroneous finding of fact.
The concurrent findings of facts, howsoever erroneous, cannot be disturbed by the
high court in exercise of powers under this section. But this is not an absolute rule.
The high court may substitute its own opinion for that of the first appellate court,
where the conclusion drawn by the lower court was erroneous being:
(1) contrary to mandatory provisions of applicable law;

(2) contrary to the law as laid down by the Supreme Court;
(3) based upon inadmissible evidence or no evidence;

4) wrong casting of the burden of proof.
The conclusion based on no evidence not only refers to a total dearth of evidence
but also the evidence taken as a whole is not reasonably capable of supporting the
finding. The respondent, at the hearing, is allowed to argue that the case does not
involve such a question.
Normally, the high court, while dealing with a second appeal, will not permit a
new plea based on question of the fact to be revised." Similarly, a plea involving a
mixed question law and fact also cannot be allowed for the first time." The high
court cannot interfere in appeal and modify the decree on a question which did not
arise for consideration in the suit or in the appeal and on which neither any evidence
nor any finding was recorded." "High Court can interfere with the finding of fact
even in the Second Appeal, provided the findings recorded by the courts below are
found to be perverse i.e. not being based on the evidence or contrary to the evidence
on record or reasoning is based on surmises and misreading of the evidence on
record or where the core issue is not decided. There is no absolute bar on the re-
appreciation of evidence in those proceedings, however, such a course is permissible
in exceptional circumstances.**
Where the legal representatives of neither of the parties were brought on record in
the second appeal, the second appeal abates and no decree in favour of the party
who was dead and against a party who was also dead can be passed. Further no
appeal lies against the decision of a single judge of a high court in appeal or second
appeal. Intra Court appeal in high court against order of single judge is not
maintainable in view of S. 100A of the Code notwithstanding any thing in the High
Court Rules or the Letters Patent to the contrary."' The LPA would not be
maintainable against the judgment and order passed by Single Judge of high court in
8. Mst. Sugani u.RameshwarDas, AIR 2006 SC 2172: (2006) 3 CTC 108.

9. Kondiba Dagdn Kadam v. Savitribari Sopan Gujar, AIR 1999 SC 2213.
10. Hero Vinoth v. Seshammal, AR 2006 SC 2234:(2006) 5 SCC 545.
11. Tirumala TirnupatiDevasthanamu. KM Krishnaiah, AIR 1998 SC 1132: (1998) 3 SCC 331
12. Ram Kumar v. Thanwar Das, AIR 1999 SC 3248; Babu Ram v. Indra Pal Singh, AIR 1998 SC 3201.
13. Radha Amma v. Balakrishnan Nair, AIR 2006 SC 3343: (2006) 7 SCC 546.
14. DR.RathnaMurthy v.Ramappa,2011 () SCC 158.
15. Kishnu v. Bihari, AIR 2005 SC 3799 : (2005) 6 SC 00.
16. Code of Civil Procedure 1908 (as substituted by the Amendment Act, 2002 w.e.f. 1 July 2002), s. 100A.
17. Geeta Devi v. Puran Ram Raigar, (2010) 9 SCC 84: (2010) 10 SCR 969.
Chapter 11 Appeas from Appellate Decrees or SecondAppeas
171
appeal. In Fuerst Day Lawson Lid. v. Jindal Exports Ltd." following law has been
culled out from various decisions:
1. Normally, once an appeal reaches the High Court it has to be determined

according to the rules of practice and procedure of the High Court and in
accordance with the provisions of the charter under which the High Court is
constituted and which confers on it the power in respect to the method and
manner of exercising that power.
2. When a statute merely directs that an appeal shall lie to a court already
established then that appeal must be regulated by the practice and procedure of
that court.
3. The High Court derives its intra-court appeal jurisdiction under the charter
by which it was established and its powers under the Letters Patent were
recognized and saved by section 108 of the Government of India Act, 1915,
section 223 of the Government of India Act, 1935 and finally, by Article 225
of the Constitution of India. The High Court, therefore, cannot bedivested of
its Letters Patent jurisdiction unless provided for expressly or by necessary
intendment by some special statute.
4. If the pronouncement of the single judge qualifies as a "judgment", in the

absence of any bar created by a statute either expressly or by necessary
implication, it would be subject to appeal under the relevant clause of the
Letters Patent of the High Court.
5. Since section 104(1) Civil Procedure Code specifically saves the letters
patent appeal it could only be excluded by an express mention in section
104(2). In the absence of any express mention in section 104(2), the
maintainability of a letters patent appeal is saved by virtue of section 104(1).
6. Limitation of a right of appeal in absence of any provision in a statute

cannot be readily interred. The appellate jurisdiction of a superior court
cannot be taken as excluded simply because a subordinate court exercises its
special jurisdiction.
7.The exception to the aforementioned rule is where the special Act sets out a
self-contained code and in that event the applicability of the general law
procedure would be impliedly excluded. The express provision need not refer
to or use the word "letters patent" but if on a reading of the provision it is clear
that all further appeals are barred then even a letters patent appeal would be
barred."
The use of expression "heard and decided by single judge of high court" in S. 100A
suggest that only those appeals which were heard and decided by single judge on and
after 1-7-2002 would be hit by bar contained in S. 100A." Whenever a writ
18. Mohd Saud v. Shaiki Mahfooz, AIR 2011 SC 485 (488): (2010) 13 SCC 517 (520).
19. Fuerst Day Lawson Ltd. v. Jindal Exports Ltd., 2011 (8) SCC 333.
20. Datta Ram Ramesh Kr. v. D.I.G, B.S.F, Rajasthan, AIR 2011 Raj 76 (78) (DB).
petition against order of the Scrutiny Committee is heard by a Single Judge and the
State Law or Letter patent permits an intracourt appeal. Such appeal is maintainable.
The jurisdiction of the civil court to entertain any suit of a civil nature arising under
a statute can be excluded only when cognizance is expressly or impliedly barred by
the statute which gives rise to such suits."
Where the appeal has been admitted on a particular substantial question of law,
the high court is empowered to hear, for reasons to be recorded, any other
substantial question of law, which was not formulated earlier, if it is of the view that
the case involves such question.* However, the parties must be put to notice of such
other formulated question and be given opportunity to address the same." "In
exerciseof jurisdiction under Section 100 C.P.C., concurrent findings of fact cannot
be upset by the High Court unless the findings so recorded are shown to be
perverse. The proviso is applicable only when any substantive question of law has
already been formulated. The expression "on any other substantial question of law'
clearly shows that there must be some substantial question of law already formulated
and then only any other substantial question of law which was not formulated earlier
can be taken up by the High Court for reasons to be recorded, if it is of the view
that the case involves such question."
No second appeal lies from any decree in a suit for recovery of money not
exceeding Rs. 25,000.
As regards procedure in second appeals, it is the same as in the first appeals as has
been clearly stated in S. 108 and O. XLII.
11.1.1 What is Substantial Question of Law?

Substantial question of law does not only mean a question of general importance but
also substantial question of law arising in a ase as berween the parties. In the
context of S.100 of the Code any question of law which affects the final decision in
a case is a substantial question of law as berween the parties. Where it is found
that the first appellate court has assumed jurisdiction which did not vest in it, the
same can be adjudicated in the second appeal, treating it as a substantial question of
law.Where the first appellate court is shown to have exercised is discretion in a
judicial manner, it cannot be termed to be an error either of law or of procedure
requiring interference in secondappeal.40
To be a substantial question of law, it must be debatable, not previously settled

by the law of the land or a binding precedent, and must have a material bearing on
21. Dayaram v. Sudhir Basham, 2012 (1) SCC 333

L.CA Sulasmanv. StateBankof Travancore,AlR 2006 SC 2848: (2006) 6 SCC 392.
23. See Thingarajan v. Venugopalaswamy B Koil, AIR 2004 SC 1913: (2004) 5 SCC 762.
Z.Laxmidevamma v.Ranganath,2015 (4) SCC 264.
25. Dharam Singh v. Karnail Singh, AIR 2009 SC 758 (760).
26. Code of Civil Procedure, 1908 (as substituted by the Amendment Act, 2002 w.ef. 1 July, 2002). s. 102.
27. Stae Bank of India v. S.N. Goyal, AIR 2008 SC 2594 (2599) : (2008) 8 SCC 92/103). See also Bhuri
Bai v. Kamnarayan, (2009) 4 SCC 56.
28. Lisamma Antony v. Karthiyayani, 2015 (2) R.C.R. (Civil) 575.
Chapter 11 Appeas from Appellare Decrees or SecondAppeals
173
the decision of the case, if answered either way, in so far as the rights of the parties
before it are concerned." Its foundation must have been laid in the pleadings and
should emerge from the sustainable findings of facts arrived at by the court and it
must be necessary to decide that question of law for a just and proper decision of
the case. It depends on the facts and circumstances of each case whether a
question of law involved in the case is a substantial one or not; the paramount
consideration being the need for striking a judicial balance between the
indispensable obligation to do justice at all. stages and impelling necessity of
avoiding prolongation in the life of any lis." "The proper test for determining
whether a question of law raised in the case is substantial would, in our opinion,
be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open
question in the sense that it is not finally settled by this Court or by the Privy
Council or by the Federal Court or is not free from difficulty or calls for
discussion of alternative views. If the question is settled by the highest Court or
the general principles to be applied in determining the question are well settled
and there is a mere question of applying those principles or that the plea raised is
palpably absurd the question would not be a substantial question of law.
The subsistence of marriage if established by law, is not a substantial question of

law Similarly finding arrived at by considering irrelevant fact or by non-
consideration of relevant fact gives rise to substantial question of law."
If a question of law is termed as substantial, the question stands already decided by
a larger Bench, its mere application to the facts of the case would not be termed as a
substantial question of law. Similarly the date of alleged partition between the
plaintiff and the defendant is not a question of law."
Normally in second appeal, the High Court should not interfere on the questions
of fact, but if on the scrutiny of the evidence it is found that the findings recorded
by the first appellate court is totally perverse then High Court can interfere in the
matter as it constitutes a question of law. Perversity of a finding. propriety of a
finding recorded by the lower court, is a substantial question of law. The question
whether the trial court should have exercised its jurisdiction differently is not a
40
substantial question of law.
29. Govindraju v. Mariamman, AIR 2005 SC 1008: (2005) 2 SCC 500.

30. Commr, Hindu Religious and Charitable Endowment v. P Sharrmugamma, AIR 2005 SC 770: (2005) 9
SCC 232.
31. Ibid.
32. Chunilal V. Mehta and sons v entury Spg O Mfg. Co. Ltd., AIR 1962 SC 1314.
33. Bharatha Matha v. R Viya Renganathan, (2010) 11 SCC 483 (489) : (2010) 11 SCC 483.
34. Abdul Raheem v. Karnataka Electricity Board, AlR 2008 SC 956.
35. KondibaDagaduKondam v. SavitribaiSopanGujar, AIR 1999 SC 2213 : (1999) 3 SCC 722.
36. Kartick Ch. Mandal v. Netai Mandal, (2009) 107 Cut LT 82 (SC) : (2009) 2 SCC 105.
37. Maria Colacov. Alba E.H.D Souza, (2008) 5 SCC 268 (271) : AlR 2008 SC 1965.
58. Kulwant Kaur v. Gurdial Singh Mann, AIR 2001 SC 1273.
39. MSVRaju v. Seeni Thevar, AIR 2001 SC 3389 : (2001) 6 SCC 652.
40. Sugani v. Rameshwar Das, AIR 2006 SC 2172.
11.1.2 In What Cases is a Second Appeal Possible?
It is now important to provide an idea of the cases in which a second appeal is

possible. As regards high courts, a suit instituted on the original side of a high
court is heard ordinarily by a single judge of that court, and an appeal from a decree
passed by him lies, as a rule, to a Bench consisting of rwo other judges of the same
court. In this case there can be no second appeal, for a second appeal lies to a high
court from a decree passed in appeal by a court subordinate to the high court (letters
patent, cl 15). However, the party aggrieved by the decree of the high court may
appeal to the Supreme Court, if tl conditions of S. 109 are satisfied."
Outside the presidency towns, there are, in each state, a number of courts of
different grades which may roughly be divided into the following three classes, in the
order of their grades-
() districtcourts;
Gi) subordinate judges courts (in some states, courts of the civil judges, senior
division); and
(ii) munsiff's courts (in somestates, courts of the civil judge, junior division).
Of these three classes of courts, usually the district court alone has appellate
jurisdiction. An appeal lies to the district court, usually from:
() decrees of courts belonging to class (ii); and

() decrees of courts belonging to class (i) in certaincases
In both these cases, an appeal lies to the district court, and a second appeal lies to
the high court if the case involves a substantial question of law, as stated above.
However in neither case does an appeal lie from the appellate decree of the high
court to the Supreme Court; unless the high court cerrifies that the conditions of
S. 109 are satisfied.**
In certain cases, an appeal lies directly to the high court, and there can therefore
be no second appeal in such case. However, the party aggrieved by the decree of the
high court may appeal to the Supreme Cour, if the high court certifies as above that
the conditions of S. 109 are satisfied.
11.2 APPEALS TO THE SUPREME COURT

Section 109 of the Code of Civil Procedure states that an appeal lies to the Supreme
Court from any judgment, decree or final order of a high court in a civil proceeding
of high court, if the high court certifies that the case involves a substantial question
of law of general importance, and that in the opinion of the high court, the said
question needs to be decided by the Supreme Court.
41.Chapter 2, relating to courts and their jurisdiction, may be reterred to.

42. Se below, Appeals to the Supreme Court..
43. In some states, courts next in grade below district courts also have appellate jurisdiction.
44. See below 'Appeals to the Supreme Court.
Chapter 11 Appeals from Appellase Decrees or SecondAppeals 175
A party cannot appeal to the Supreme Court unless the case is certified to be a fit
one for appeal to the Supreme Court, as where the case involves a question of
company law, and the question is of importance to Indian companies generally as
affecting their financial and commercial position. A party failing to obtain a
certificate of fitness may apply directly to the Supreme Court for leave to appeal,
and the Supreme Court may, in a proper case, grant such leave.
A mixed question of law and fact, when there is no pleading, no issue framed, nor
evidence led, cannot be allowed to be raised for the first time before the Supreme
Court.
The Supreme Court will be concerned with a substantial question of law arising in
the case and its jurisdiction would not be restricted to illegality, irrationality or
procedural impropriety in the decision making process.
A suit filed on the original side of high court may be heard by a single judge of
that court, or it may, in a special case, be heard by a Bench of two or more judges."
An appeal lies to the high court from the decree of one judge of the said court."
These are called letters patent appeals. Where a single judge of the high court, in
appeal, exercising jurisdiction as an appellate court passes an order, Letters Patent-
Appeal does not lie against that order."" When the suit is heard by two or more
judges, an appeal lies directly to the Supreme Court, and this is the case
contemplated by S. 109. The 'decree' referred to in S. 109 is, so far as the high
courts are concerned, a decree passed in appeal by a high court from:
) adecree of a singlejudge of that court; or

(i) a decree of a subordinate court.
It is pertinent to note that it is not only a decree, but a final order that is appealable
to the Supreme Court. Thus, an order in a partnership suit declaring the rights of
partners, and directing accounts to be taken on the footing of the rights so declared,
is appealable to the Supreme Court, if the conditions of S. 109 are satisfied.
11.2.1 Procedure in Appeals to the Supreme Court

Order XLV, Rr. 1-3 states that a party desiring to appeal to the Supreme Court
should apply by petition to the court. Every petition should state the grounds of
appeal, a prayer for certificate, that the case fulfils the conditions mentioned above
as regards appeal to the Supreme Court.
In accordance with 0. XLV, Rr. 3-7, upon receipt of such petition, the court shall
direct that notice be served on the opposite party to show cause why the certificate
should not be granted. The parties will then be heard on the notice. Where the
45. Vasantha Viswanathan v. VK Elayaluwar, AIR 2001 SC 3367: (2001) 8 SCC 133.
46. CellularOperatorsAssociation of India v. Union of India, AIR 2003 SC 899: (2003) 3 SCC 186.
47. Letters Patent, Bombay, Madras and Calcutta, c 36.
48. lbid, cl 15.
49. Hemlata Panda v. Sukuri Dibya, (2000) 2 SCC 218; PSSathappan v. Andhra Bank Lid., AIR 2004 SC
5152.
176
certificate is refused, the petition shall be dismissed. When the certificate is granted,
the applicant should, within the specified period, furnish security for the cost of the
respondent, and deposit the amount required to defray the expense for preparing a
correct copy of the record of the suit for transmitting it to the Supreme Court.
Where such securiry has been permitted and deposit made, the court should declare
the appeal admitted, give notice thereof to the respondent, and transmit to the
Supreme Court, a correct copy of the said record.
As regards execution of the decree appealed from, O. XLV, R. 13 clearly states

that the court may stay the execution, taking proper security from the appellant, or
it may allow the decree to be executed, taking proper security from the respondent.
The appeal will then be heard by the Supreme Court, and an order shall be made.
Order XLV, R. 15 states that a party desiring to obtain execution of the order of the
Supreme Court should apply by petition to the court from which the appeal was
preferred. Such court should then transmit the order to the court which passed the
first decree appealed from with directions to execute it.
11.3 APPEALS FROM ORDERS

The decisions of a court of law may be divided into two classes, namely,
(1) decrees and (2) orders. Orders, again, may be divided into two classes, namely,
appealable orders and non-appealable orders.
Decision
Decree Order
Appealable Non-appealàble
The following are the points of distinctions berween a decree and an order.
(1) Section 96 of the Code of Civil Procedure states that every decree is
appealable, unless it is expressly provided that no appeal shall lie from it;
but every order is not appealable: only those orders are appealable which
are specified in S. 100 and under O. XLIII, R. 1.
(2) In the case of decrees, S. 100 states that a second appeal lies to the high
court if a question of law is involved. Section 104,
sub-section (2), makes it amply clear that no second appeal lies in the
case of orders at all. A revision may, however, lie in certain cases." It is
for the above reasons that the distinction between a decree and an order
is important. The term 'order' is defined in S. 2, c. 14 of the Code as
50. Chapter 12.

Chapter 11 Appeas from Appelate Decreesor SecondAppeals 177
the formal expression of any decision of a civil court which is not
decree. The lists given in S. 104 and O. XLIII, R. 1 give an idea of
which orders are appealable at a glance.
Where an order passed under the Code of Civil Procedure, 1908 is not appealable,
the party aggrieved by such order may challenge the legality of the order in appeal
against the decree and contend that no such order could have been passed and the
judgment should not have been pronounced.
The term 'decree' is defined in the Code as meaning 'the formal expression of an
adjudication which, so far as regards the court expressing it, conclusively determines
the rights of the parties with regards to all or any of the matters in controversy in the
suit. To constitute a decision in a decree, the following conditions must be present:
) The decision musthavebeenexpressedin a suit.

i) The decision must have beenexpressed on the rights of the parties with
regard to all or any of any matters in controversy in the suit.
(ii) The decision must be one which conclusively determines those rights.
If all the elements set forth above concur in a decision, the decision is a decree; if
not, it is an order, for all decisions which are not decrees are orders.
llustrations
(a) A applies for leave to sue as an indigent person. The application is rejected
on a finding that A is not an indigent person. This decision is not a decree,
for it is not a decision in a suit. The application is for leave to sue, which
shows clearly that there is yet no suit. Every suit is commenced by a plaint,
and an application for leave to sue as an indigent person does not become a
plaint until the application is granted (O. XXXIII, R. 8).
(b) In a suit by A against B, an application is made by X to be added as a plaintiff
to suit on the ground that he is interested in the subject-matter of the suit.
The application is rejected. The decision is not a decree, for it is not a
decision on any right which X might have claimed in the suit had he been a party-
plaintift.
In both the cases cited above an appeal was sought to be preferred from the decision.
On referring to S. 104 and to O. XLI, R. 1, it will be seen that neither a decision
rejecting an application to sue as an indigent person, nor a decision rejecting an
applicacion to be added as a party, is specified in the list of appealable orders given
there. The decision not being an appealable order in either of them, it was
contended on behalf of the appellant that it amounted to a decree, and it was
therefore appealable. However, it was felt that the decision did not amount to a
decree, and that it was not therefore appealable as such.
It may be asked why is it that no second appeal lies from orders after dealing with
appeals to the Supreme Court. The answer is that though the law does not allow a
S1. Code of Civil Procedure, 1908, O. XLII, R. IA(1).

178
second appeal from an order, whether it is interlocutory or final, it does allow an
appeal to the Supreme Court from an order which is final in its character. An order
is said to be final, if it has the effect of deciding finally the cardinal point in the suit.
11.4 THE NEXT CHAPTER

Thus, there are certain decrees from which no appeal lies to the high court. The next
chapter considers whecher there is any other way in which the party aggrieved by
such a decree can approach the high court. There are, again, cases in which, though
an appeal is allowed by law, the party aggrieved by the decree may apply for a review
of judgment to the very court which passed the decree. These cases are also
considered in the next chapter.
.
.
52. Chapter 12.

53. lbia.
.
CHAPTER 12
REFERENCES, REVISION AND REVIEW
Where no appeal lies to the high court,' the legislature has empowered the
subordinate courts to refer questions of law for decision to the high court. This is
called reterence. Similarly, where no appeal lies to the high court, the legislature has
empowered the high court to revise the proceedings of courts subordinate to it in
certain cases. This is called revision, and the jurisdiction of the high court exercised
in these cases is called revisional jurisdiction. The high courts alone have revisional
jurisdiction under Ss. 113, 115 of the Code.
12.1 REFERENCE
According to S. 113, a reference may be made by subordinate court to the high

court, on a question which arises:
a) in a suit in which the decree is not subject to a second appeal to the high
court, or in the execution of such a decree.
(b) if it is a question of law or usage having the force of law, on which the
court trying the suit or appeal entertains reasonable doubts.
Section 113 also states that such reference may be made by the court either on its
own motion or on an application by any of the parties. Where a question of the
validity of any law is in issue, a reference must be made.
The primary object of making reference is to enable a subordinate court to obtain

the opinion of the high court in non-appealable cases on a question of law and to
avoid commission of an error which cannot be remedied at a later stage.
Under the Code of Civil Procedure, 1908, it is only the court of civil judicature,
who can make a reference to the high court. And while making a reference, the court
must draw a statement of facts, formulate a precise question of law and express its
own opinion on the question.
1. Chapter I1.
The jurisdiction of the high court in references is merely consultative and is

neither original or appellate. Hence, it cannot pass an order on merits. Once the
high court answers the questions referred to it, nothing further survives for the high
court to decide."
The following table contains the distinction berween 'reference' and 'appeal'.
SINo. Reference Appeal
1. Power of reference is vested in the A right to appeal is conferred on a

court. Suitor.
L. Power of reference may be exercised An appeal may be filed by a party

Suo motu. or person aggrieved.
. It can only be to the high court. It may be to any superior court

which may not necessarily be the
high court.
4. It can only be made during the| It can be prefered only after the
pendency of suit or appeal or decree is passed or an order made
execution proceedings. which is appealable.
The high court then hears the parties, and decides the points referred. A copy of its
judgment is then sent to the court by which the reference was made. It is the duty of
the latter cour, on receipt of the judgment by virtue of S. 113 and O. XLVI, R. l to
dispose of the case in conformity with the decision of the high court. In certain cases,
under O. XVI, R. 6-7 questions as to jurisdiction in small causes may be referred.
The power to make reference is discretionary. However, where a question of

validity of an act, ordinance or regulation is involved and where the court is of the
opinion that they are invalid or inoperative but they have not been declared to be so
by the Supreme Court or high court to which it is subordinate, the court shall make
reference to the high court.
Where the requirement laid down in the proviso to S. 113 of the Code is not
satisfied, the reference made by the District Judge would be incompeten."
If the high court has already decided the question as to the validity of an Act, S.
113 has no application.
12.2 REVIsION
Revision means the action of revising and especially making a critical or careful
examination or perusal with a view to correcting or improving. The revisional
2. Delhi Financial Corpnv. RamParshadAIR 1973Delhi 28; Raja Husain u Gaviappa AIR 1984 Kant 108.
3. Municipal Corpn of City v. Shiv Shanker Gauri ShankerMehta, (1998) 9 SCC 197..
4. Stae of Maharashtra v. Prashant Pretam Kr. Shegaonkar, AIR 2011 Bom 100 (105) (DB) : 2011 (4)
Bom CR 334.
5. Cenral Bank of India n. VrajlaK
l kapurchanGdandhi. AIR 2003 SC 3028: (2003) 6 SCC 573.
6. Shorter Oxford English Dictionary, vol. 2, 1990, p 1821.
Chapter 12 References, Revision and Review
181
jurisdiction has been conferred on the high court, for the effective exercise of its
superintending and visitorial powers over the subordinate courts. The revisional
powers can be invoked by the high court either on an application of the aggrieved
party or suo motu. High court cannot reappreciate evidence and set aside concurrent
findings of courts below by taking a different view of the evidence. High court is
empowered only to interfere with the findings of fact if they are perverse or there is
non-appreciation or non-consideration of material evidence on record." Section 115
does not, in any way, confer a right on a litigant aggrieved by any order of the
subordinate court to approach the high court for relief. The scope of making a
revision under this section is not linked with a substantive right."
The primary object of revision is to prevent the subordinate courts from acting
arbitrarily, capriciously and illegally or irregularly in the exercise of their jurisdiction,
and keeping the subordinate courts within the bounds of their jurisdiction."" The
scope of revisional jurisdiction depends on the language of the statute. Though
revisional jurisdiction is a part of the appellate jurisdiction, it cannot be equated
with that of a full fledged appeal." Once the civil revision applications are held to be
not maintainable ordinarily the high court should not enter in to the merits of the
matter.
The high court has the power under S. 115 to call for the record of any case which
has been decided by any court subordinate to it and in which no appeal lies thereto,
if the subordinate court appears:
(a) to have exercised a jurisdiction not vested in it by law; or
(b) to have failed to exercise a jurisdiction vested in it by law; or
() to have acted in the exercise of its jurisdiction illegally or with material
irregularity
and the high court may make such order in case as it thinks fit. "The section is
concerned with jurisdiction and jurisdiction alone involving a refusal to exercise
jurisdiction where one exists or an assumption of jurisdiction where none exists and
lastly acting with illegality or material irregularity."" Revision against interlocutory
orders is however, subject to certain limitations as per proviso to S. 115. The high
court shall not vary or reverse any interlocutory orders except in following cases:
() if such order was made in favour of the applicant, it would have finally
disposed of the suit or other proceedings; or
7. Johri Singh v. Sukh Pal Singh, AlR 1989 SC 2073; Manick Chandra Nandy u. Debdas Nandy, AIR 1986
446.
8. Yunus Aliv. Khurshed Akram, (2008) 7 SCC 293 (295-297): 2008 SC 2607 (2609) : AIR 2008 SC
2607.
9. Shiv Shaktico-op Housing Societyv. SwarajDevelopers, AIR 2003 SC 2434: (2003) 6 SCC 659.
10. TT Ldu. SiemensPublic Communication NetworksLsd. (Ms), AIR 2002 SC 2308: (2002) 5 SCC 510.
1. Chandrika Prasadv. Umesh Kumar Verma, AIR 2002 SC 108: (2002) 1 SCC 531.
12. Nawab Shaugafath Ali Khan v. Nawab Imdad Jah Bahadur, (2009) 5 SCC 162 (178): 2009 (3) SCALE
934.
13. Major S.S. Khanna v. Brig FJ]. Dillon, AIR 1964 SC 497.
(i) if such order is passed without any legal evidence on the record, or on
misunderstanding of evidence or suffers from any legal infirmity which
materially prejudices the case of one of the parties or the finding is
perverse" and would occasion failure of justice or cause irreparable injury.
It can be seen that both the phrases 'failure of justice' and 'irreparable injury' are
very wide and confer discretionary powers to decide whether interference is called
for or not.
Any illegality, irregularity or impropriety is capable of being corrected by the high
court by passing such appropriate order or direction as the law requires and justice
demands.
A revision shall be entertained by the high court only in respect of those orders
which would have finally disposed of the suit or other proceedings.o The revision
against order finally deciding the manner in which money decree is to be satistied,
would be maintainable."
If the order is of interim nature or does not finally decide the lis, the revision will
not be maintainable. "" Where application is an interlocutory application, the order
passed rejecting it will not amount to finally deciding final decree proceedings.
Hence, a civil revision petition would not be maintainable."
The remedy under S. 115 shall be available unless expressly barred by any state
enactment." Further, mere possibility of a different view is no ground for
interterence in exercise of revisional powers."
The nature and extent of jurisdiction of the various courts subordinate to high
court have already beendiscussed. It follows from what has been stated there, that
if a court tries a suit which it has no jurisdiction to try having regard to the local
limit of its jurisdiction not vested in it by law, it is a case of exercise of jurisdiction
not vested in it by law.
Similarly where a court has jurisdiction to entertain a suit or to execute a decree,

or to review its judgment, but refuses to do so on the ground that it has no
jurisdiction, it is a case of failure to exercise jurisdiction vested in it by law. In all
these cases, the high court may intertere in the exercise of its revisional jurisdiction,
and make such order as it thinks fit. Where a conditional leave to defend a suit is
granted, a revision application would be maintainable."
14. Neelakantan v. Mallika Begum, AIR 2002 SC 827: (2002) 2 SCC 440.
15. Nalakath Saimuddin v. Koorikadan Sulaiman, (2002) 6 SCC1.
16. VS Saini v. DCM Lid., AIR 2004 Del 219.
17. RadhayShyam Gupa v. Punjab National Bank, AIR 2009 SC 930 (934): (2009) 1 SCC 376
18. Shiv Shakti Co-op Housing Society v. Swaraj Developers, AIR 2003 SC 2434: (2003) 6 SCC 659.
19. Kashammav.Mahadevappa,2008 (1) Kar LJ 652 (653, 655-56) (DB): ILR 2007 KAR 3512.
20. SadhanaLodh v. National InsuranceCo., (2003) 3 SCC 524.
21. Harshuardhan Chokkani v. Bhupendra N Patel, AIR 2002 SC 1373: (2002) 3 SCC 626.
22. Chapter 2.
23.
Wada Arm Asbestos (P) Lid v. Gujarat Water Supply & SewerageBoard. (2009) 2 SCC 432.
Chapter12 References, Revision and Review 183
The third class of cases appropriate for revision by the high court is where a
subordinate court having jurisdiction and having exercised it, has acted illegally or
with material irregularity in the exercise of such jurisdiction. Thus it is an illegality
to pass a decree on an unstamped promissory note. Similarly, it is an illegality and a
material irregularity to make an order against a person without hearing him at all.
High court in its revisional jurisdiction under S. 115 of the Code can interfere with
finding of fact arrived at by the Appellate Authority if it finds that the findings of
the appellate authority on the question of bona fide requirement were either perverse
or arbitrary. However, an error of fact or law cannot be interfered with in revision.
The decision of the subordinate court on all questions of fact and law not touching
the jurisdiction is final and not open to challenge in revision and the mere fact that
decision of the court is erroneous, whether it is upon fact or in law, does not amount
to an illegality or material irregularity. Therefore the high court will not interfere in
the exercise of its revisional jurisdiction merely because the lower court wrongly
decides that the suit is barred as res judicata, or that is barred by limitation, or
because it proceeds upon the erroneous construction of the sections of an Act. The
principle is that where a court has jurisdiction to decide the question before it, and
in tact decides such question, it cannot be regarded as acting in the exercise of its
jurisdiction illegally or with material irregularity, merely because its decision is
erroneous.Ifa subordinate court exercisesits jurisdiction not vested in it by law or
fails to exercise the jurisdiction so vested, the said order under Section 115 of the
CPC is revisable. After the amendment of Section 115, C.P.C. w.e.f. 1.7.2002, the
said power is exercised under Article 227 of the Constitution.
The revision application can be moved within 90 days from the date of decree or
order sought to be revised."
12.3 REVIEW OF JUDGMENT [ORDER XLVI]

The term 'review' means re-examination or second examination of a case." It is an
act of looking at or offering something again with a view of correction or
improvement." It means to reconsider the same material. When it appears that an
error on the face of the record has occurred and it can be verified by mere looking at
the record, a review application is maintainable. "An error which is not self-evident
and has to be detected by a process of reasoning can hardly be said to be an error
apparent on the face of the record justifying the Court to exercise its power of
24. Ajit Singh u. Jit Ram, AIR 2009 SC 199 (203); see also Devaki Antharjanam v. Srudharan Namboodri,
(2009) 7 SCC 798.
25. Pandurang Dhondi Chougule v. Maruti Hari Jhadav, AIR 1966 SC 153; DLF Housing and Construction
Co. Pvt. Ltd. v. Sarup Singh, AIR 1971 SC 2324.
26. ML Sethi v. RP Kapur, AR 1972 SC 2379: (1972) 2 SCC 427.
27. Sameer Singh v. Abdul Rab, 2015(1) SCC 379.
28. Limitation Act, 1963, schedule, Art. 131.
.Chamber's 21stCenturyDictionary, 197,p. I197
30. Lily Thomas v. Union of India, (2000) 6 SCC 224.
31. Lakshmi Narain v.Secretaryof Govt, Dept. ofSurvey d* LandRecords,2010 (4) ALT 774 (781) : 2010
(5) ALD 91.
review. The mere possibility of rwo views on the subject is not a ground for review
Review is not re-hearing of an original matter. The power of review cannot be
confused with appellate power which enables a superior court to correct all errors
committed by a subordinate court." In legal parlance it is a judicial re-examination
of the case by the same court and by the same judge." The scope of review is very
limited under O. XLVIl, R. 1 of the Code." It is for review of an error apparent
only and not to review judgment or order, even if parties are in a position to satisfy
the court that the order under review is erroneous. The Code, under S. 114 confers
a right of review if the conditions precedent laid down therein are satisfied and lays
down the procedure under O. XLVII for it. The substantive provision of law does
not prescribe any limitation on the power of the court except those which are
specifically provided under S. 114 in terms whereof it is empowered to make such
order as it thinks fit." Review in terms does not apply to an application for review in
a writ petition."
A review cannot be equated with the original hearing of the case and finality of the
judgment delivered by a competent court cannot be reopened or reconsidered,
unless the earlier judicial view is manifestly wrong.It is beyond any doubt or
dispute that the review court does not sit in appeal over its own order. A rehearing
of the matter is impermissible in law." A review is by no means an appeal in
disguise whereby an erroneous decision is regard and corrected, but lies only for
patent error. We do not consider that this furnishes a suitable occasion for dealing
with this difference exhaustively or in any great detail, but it would suffice for us to
say that where without any elaborate argument one could point to the error and say
here is a substantial point of law which stares one in the face, and there could
reasonably be no two opinions entertained about it, a clear case of error apparent on
the face of the record would be made out."
The remedy of review was not known to Common Law and has been borrowed
from the courts of equity. The doctrine of review is based on the philosophy that the
mistakes and errors of human failing must be corrected so as to prevent miscarriage
of justice. It is exercised to remove the error and not to disturb the finality."
Review Petition has to be heard by the Judges, who pronounced the judgment, so
long as they are in service. In review petition petitioner can only seek correction of
errors or mistakes in the judgment apparent on the face of the record."
32. Kamlesh Verma v.Mayawati, 2013 (8) SCC 320.

33. Stateof Orissa v. Commr of LandRecords andSettlemens,AIR 1998 SC 3067: (1998) 7 SCC 162.
34. Oriental Insurance Company v. Kalawati Devi, (2009) 13 SCC 767 (768).
35. Span Co. Ld. v. A2Z Maintenance & EngineeringServicesLtd., 2010 (5) Bom CR 832 (836) (DB).
36. Board ofControl for Cricket, India v. Netaji Cricket Club, AIR 2005 SC 592: (2005) 4 SCC 741.
37. Maruti RealEstatePvt. Ld. v. L.I.C. of India, 2008 (1) CHN 442.
38. Delbi Administration v. Gurdeep Singh (2000) 7 SCC 296; Susheel Naik v. GKNaik, (2000) 9 SCC 366.
39. InderchandJain v. Motilal, (2009) 14 SCC 663 (669).
40. Thungabhadra Industries Lrd. v. Govt. of A.P., AIR 1964 SC 1372.
41. Lil Thomasv. Unionof India, AIR 2000SC1650: (2000) 6 SCC 224.
42. Chief Secretary to Government v. Khalid Mundappilly, 2011 (1)RC.R. (Civil) 769.
Chapter 12 References, Revision and Review 185
Consumer Disputes Redressal Agencies under the Consumer Protection Act,
1986, have no power of review. The omission to cite an authority of law is not a
ground to review the earlier judgment. The purpose of review application cannot be
"rehearing tor the purpose of saying whether a different conclusion on merits could
be adopted.**
Order XLVII, R. 1 states that a party aggrieved by a decree or order may apply for
a review of judgment not only where no appeal is allowed from it, but also where an
appeal is allowed from it, provided that no appeal has been preferred by him. A
decree or order from which an appeal is allowed but where no appeal has been filed
can be reviewed." The fact that some other party to the decree has preferred an
appeal is no bar to an application for a review of judgment if such appeal is common
to the applicant and the appellant. Where principles laid down under O. XLVII, R.
1 are completely ignored, the order in review would be liable to be set aside.
An application for a review of judgment may be made on any of the following

grounds:
i) discovery by the applicant of new and important matter or evidence

which, after the exercise of due diligence, was not within his knowledge or
could not be produced by him at the time when the decree or order was
passed;
i) on account of some mistake or error apparent on the tace of the record;
i) for any other sufficientreason(which)meanssufficientreasonanalogous
to those specified immediately to it in the provisions of O. XLVII, R. 1."
The words 'sufficient reason' are wide enough to include a misconception
of fact or law by a court or even an advocate. An application tor review
may be necessitated by way of invoking the doctrine actus curiae neminem
gravabit. If the judgment is based upon any proposition of law which is
reversed or modified by a subsequent decision of a superior court in any
other case, it shall not be a ground for review." This has been clearly
stated in the explanation to O. XLVII, R. 1.
An error apparent on the face of the record may be one of fact or of law. No error
can be said to be an error apparent on the face of the record if it is not self evident
and requires an examination or argument to establish it."
43. EurekaEstates Pvt Lrd v. APS CDR Commission, AIR 2005 AP 118 (DB).
44. Kishan Goyal v. Secty. to Govt. of Orissa, (2008) 106 Cut LT 92 (DB).
45. Kalpatru AgroforestEnterprisesv. Union of India, (2002) 3 SCC 692.
46. T. Thimmaiah v. Venkatachala Raju, (2008) 11 SCC 107 (108).
47. SankarDas v. P.P. Ld., (2009) 108 Cut LT 553 (556) DB): 2009 (2), OLR 790, see also MMB
Catholicos v. MP Athanasius, AIR 1954 SC 526; Meera Bhanja v. Nirmala Kumari Chaudhari, AIR
1995 SC 455: (1995) 1 SCC 170.
48. Board of Control for Cricket India v. Netaji Cricker Club, AIR 2005 SC 592: (2005) 4 SCC 741.
4.Shanti Devi v. Stateof Haryana, (1999) 5 SCC 703.
50. Delhi Administration v. Gurdip Singh (2000) 7 SCC 296; Parsion Devi v. Sumitri Devi (1997) 8 SCC
715.
The application should be in the same form as a memorandum of appeal. After

the application is admitted, a notice will be issued to the opposite party. The
application will then be heard. It is to be heard by the very judge who passed the
decree, unless he is no longer attached to the court, or is precluded from hearing it
by absence or other cause for a period six months next after the application. And
here the main point of distinction between an appeal and a review has to be noted.
An appeal from a decree lies to a judge other than the one who passed the decree. A
review of judgment lies to the same judge who passed the decree. In absence of any
statutory provision providing for review, entertaining an application for review or
under the garb of clarification/modification/ correction is not permissible."
Where there is no sufficient ground for a review, the application should be
rejected. Otherwise the court may grant the application. Where the application is
granted, the court may at once re-hear the case or appoint a day for re-hearing it.
Atter re-hearing the case, the court may pass such decree or orders as it thinks proper
as per O. XLVII, R. 4, 6. Where review is allowed, the applicant would be entitled
to refund of court fee paid on the review petition."
The law does not allow a second review, that is to say, that under O. XLVII, R. 9
there can be no review of an application for a review and no review of a decree
passed on a review. Regarding the maintainability of appeal against the review
peition preferred by appellants themselves having invoked the jurisdiction of the
appellate court, it would not be open to the appellants to take a contrary view and to
urge that such appeal was not maintainable having being filed against an order
passed in review petition.*
The following table contains the points of distinction berween 'review' and 'revision'.
SINo. Rev Revision
(1) Review jurisdiction can beexercised Revisional jurisdiction can be

by that very court which passed the | exercised only by the high court.
decree or made the order.
(2) Review is available irrespective of Revision is available when no

whecher an appeal lies from the appeal lies.
decree or order.
(3) Review powers can be exercised by Revisional jurisdiction can be

the court only on application of the | exercisedevensuOmotu.
aggrieved party.
4) Order granting review is appealable.| Order passed in revisional Juris-

diction is not appealable.
51. See ch. 10.

52. Kalabharti Advertising v. Hemant Vimanath Narichania, AIR 2010 SC 3745 (3749): (2010) 9 SCC 437.
53. JoyVerghese v. State of Kerala, AIR 2005 Ker 49.
54. Indian Overseas Bank u Ashok Saw Mil, (2009) 8 SCC 366 (376).
Chapter 12 References, Revision and Review 187
The review jurisdiction of the court can be invoked within 30 days from the date of
the decree or the order.
12.4 THE NEXT CHAPTER
The conduct of suit in and out of court from the date of their institution up to the
final order of the Supreme Court have been explained thus far. There are, however,
supplemental proceedings which are not obligatory upon a party to demand it. They
may be taken at any stage of a suit as occasion demands. These proceedings form the
subject-matter of the next chapter. That chapter also deals with certain special types
of proceedings and also with death, marriage and insolvency of parties.
55. Limitation Act, 1963, schedule, Art. 124.

CHAPTER 13
SUPPLEMENTAL AND SPECIAL
PROCEEDINGS
(A) SUPPLEMENTALPROCEEDINGS
13.1 ARREST AND ATTACHMENT BEFORE JUDGMENT

Ordinarily, the properry of a debtor may be attached or he may be arrested only in
execution of a decree. However, in order to prevent any attempt by a defendant to
defeat the execution of decree and to enable the plaintiff to realise a decree in the
event of the decree being passed in his favour, the Code provides for the arrest of a
defendant or the attachment of his property, in certain circumstances before the
delivery of judgment. The power of arrest of defendant or attachment of his
property before the judgment is an extraordinary remedy, and must be exercised
sparingly and with utmost care and caution. The process cannot be used by the
plaintiff as a lever to coerce the detendant to come to terms.
A plaintiff may at any stage of a suit apply for arrest of the defendant before the
judgment is passed against him. Similarly, he may apply for the attachment of his
property before judgment. Such an application may be made at any time after the
plaint is admitted, even before the service of summons upon the defendant. It is
certainly not just that a defendant should be arrested or that his property be attached
before a decree is passed against him. Hence, it is only in certain specified cases that
the law allows an arrest or attachment before judgment. Where the arrest or
attachment has been obtained on insufficient grounds, the law provides
compensation to the defendant for an amount not exceeding Rs. 50,000.* Section
95 is a specific provision situation stated therein, and it is open to a
to meet the
party to institute an independent suit for damages. The remedy under S. 95 is an
alternative remedy in cases of wrongful obtainment of injunction, and it does not in
any way interfere with the principles regulating suits for damages for tort or
1. Sardar Govindrao Mahadik v. Devi Sahai, AIR 1982 SC 989: (1982) 1 SCC 237.
2. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1 July 2002), s. 95 (1).
malicious legal process. The scope and ambit of such suit for damages shall
necessarily be wider than the limited scope envisaged under S. 95.
The regular suit shall be based on tort for abusing the process of court and the
plaintiff not only has to prove want of reasonable or probable cause for obtaining
injunction, but also that the defendant was attracted by malice or an improper
motive, and according to S. 95(2) an order determining such compensation shall
bar any suit tor compensation in respect of such arrest. Separate suit for damages
shall also be barred where an application for compensation under S. 95 is dismissed."
13.1.1 Arrest before Judgment [Order XXXVI, Rules 1-4]

Where the court is satisfied that the defendant with an intent to delay the plaintiff
or to avoid any process or with intent to obstruct or delay the execution of any
decree that may be passed against him:
(a) has absconded or is about to abscond, or has left or is about to leave the
local limits of its jurisdiction; or
(6) has disposed of his property or any part thereof or has removed it from the
said limits;
the court may issue a warrant to arrest the defendant, and bring him before the
court to show cause why he should not furnish security of his appearance.
Where the defendant is about to leave India, it is enough if the circumstances

under which he is about to leave India afford a 'reasonable probability' that any
decree that may be passed against him in the suit will thereby be obstructed or
delayed in execution. The power to arrest the defendant and that too before a
decree in favour of the plaintiff is drastic action and must be taken after due care,
6
caution, and circumspection.
Application for arrest before judgment.-In Vareed Jacob v. Sosamma

Greevarghese An application for arrest may be made by the plaintiff at any time
after the plaint is presented, even before the service of summons is effected on the
defendant. However, before this extraordinary power can be exercised, the court
must be satisfied about the following conditions:
The plaintiffs suit must be bona fide and hiscauseof action must be prima
facie unimpeachable subject to his proving the allegations in the plaint.
The court must have reason to believe on adequate materials that unless
this extraordinary power is exercised there is a real danger that the
defendant will remove himself or his property from the ambit of the
powers of the court."
3. Bank of India v. Lakhimani Das, AIR 2000 SC 1172: (2000) 3 SCC 640.
4. Yeragorla Narayana v. Gavvala Nellesu, AIR 2006 AP 305.
5. VBalakrishnan v. TM Gourieshan, AIR 2001 Mad 20.
6. In VareedJacob v. SosammaGreevarghese,(2004) 6 SCC 378.
7. Vareed Jacob v. Sosamma Greevarghese, (2004) 6 SCC 378.
Chapter 13 Supplemental and Special Procedings
191
The warrant should specify the amount of the plaintiff's claim. If the defendantpays
the amount to the officer entrusted with the execution of the warrant, he will not be
arrested. If he does not pay the said amount, he will be arrested and brought before
the court. If he shows such cause, the court will make an order directing his release.
If he fails to show such cause, the court will make an order directing him either to
deposit in court, money or other property sufficient to answer the claim against him,
or to furnish security for his appearance at any time until satisfaction of any decree
that may be passed against him. If he fails to comply with the last-mentioned order,
the court may commit him to the civil person for a maximum period of six months
and where the value of t subject matter of the suit does not exceed Rs. 50, for a
maximum period of six weeks.
No arrest before judgment is allowed in a suit for land or immovable property

specified under S. 16, cl. (a) to (d).
An order passed under O.38 R. 2, 3, or 6 is appealable under O.43 R.1(q).
A woman cannot be arrested or detained in civil prison under this rule in case of a
suit for recovery of money.
13.1.2 Attachment before Judgment [Order XXXVII, Rules 5-12]

The sole object of attachment before judgment is to give an assurance to the plaintiff
that the decree which may be ultimately passed in his favour shall not be rendered
infructuous.
Where the court is satisfied that the defendant, with an intent to obstruct or delay
the execution of any decree that may be passed against him, is about to dispose of
his or any part thereof or remove it from its local limits, the court may direct the
defendant either to furnish security in such sum as may be specified in the order to
place at the disposal of the court, the said property or the value thereof, or such
portion thereof as may be sufticient to satisty the decree that may be passed against
him, or to appear and show cause why he should not furnish such security. Order
XXXVIII Rule 5(1) empowers the court to direct a defendant to furnish security in
the specified sum or produce and place his property or part thereof at the disposal of
Cour, to the extent it is sufficient to satisfy the decree, if the Court is satisfied that
such defendant is with intent to obstruct or delay the execution of any decree that
may be passed against him, is about to remove the same from the local limits of the
jurisdiction of the Court. Sub-rule (3) furrher empowers to direct conditional
attachment of the specified property. Conditional atachment is provisional in
nature and is always subject to modification. "The power given under this rule to
make an alternative order directing the defendant either to give security within a
definite period or to appear ands show cause why he should not furnish security,
8. Mchelska Mills Mothers v. Chorus Girl Inc., AIR 1991 Del 129.
9. Govindram v. Devi, AIR 1982 SC 989.
carries with it, as an incident, the power to confirm the order that security be
furnished."
"The fact that the cour has passed a conditional order of attachment does not
mean that the requirement of sub-rule (1) of O. XXXVIII R. 5 has been taken away,
nor does it mean that the defendant loses his right to show cause, why he should not
furnish security. Therefore though a conditional order of attachment had been
passed by the court, the defendant would have a right to appear and show cause
against it.IF he fails to show suchcause, the court may order that the property be
attached, or if it has already been attached, it may confirm the attachment.
Attachment before judgment of the movables" and of the money in the hands of a
third parry due to the defendant can also be ordered." In order to secure the attach-
ment of property betore judgment in a money suit, it is not necessary to consider
that whether the suit property is the subject matter of suit and that it is within or
beyond the jurisdiction of the Court." An order of attachment before judgment
may be likely to ruin the reputation of the party against whom such an order is
passed. Thus, the affidavit filed in support of the contentions should not be vague
and should clearly establish that the defendant, with an intent to obstruct or delay
the execution of the decree that may be passed against him is about to dispose of the
whole or any part of his propertry. Particulars and grounds on which the belief or
apprehension is based must be clearly stated with the source of information. Mere
general allegations or a mere mechanical repetition of the language of the provision,
unsupported by particulars would not be sufficient. The power under O. XXXVIII,
R. 5 of the code is extra ordinary and drastic and hence should not be exercised
mechanically or merely for the asking. The power under 0. XXXVIII, R. 5 should
be used sparingly and strictly in accordance with rule." While exercising jurisdiction
under O. XXXVIII, R. 5 of the Code, the court is required to form a prima facie
opinion at that stage and need not go into the correctness or otherwise of the
contentions raised by the parties." Where property is attached before judgment, and
a decree is subsequently passed for the plaintif, it is not necessary to re-attach it in
execution of the decree. Agriculture produce and production of such produce cannot
be attached before judgment. The Code does not empower a court of small causes to
make an order for attachment ofimmovable property. "
An order of attachment made without complying with the requirements shall be

void according to O. XXXVIII, R. 5(4). An order passed without giving reasons
would be an illegal order. Thus the power to attach the property before judgment
10. Shah Umed Mal v. Shah Bhutaji, ILR (1969) 19 Raj 701.
11. Shalimar Rope Works Ltd. v. N.C. Jobn and Sons Lrd., 1986 Ker LJ 1051.
12. Sankar SealingSystem PLtd. v. Jain Motor TradingCo., AIR 2004 Mad 127.
13. SurenderSingh Bajaj v. Kitty SteelsLtd., AIR 2003 AP 13 (DB).
14. Muthoot Vehicle AssetFinance Lsa. v, Gopalan Kuttapan, 2009 (4) KLT 123 (126) (DB).
15. Raman Tech Proces Engg Co Solanki Traders, (2008) 2 SCC 302; see also M.R. Lakshamanappa u.
Ramachandra Bhas, 2008 AIHC 1678 (Kar) (merely having a prima facie case will not entitle the
plaintiff to an order of attachment betore judgment).
T6. Kajendran v. Shankar Sundaram, (2008) 2 SCC 724.
17. Code of Civil Procedure 1908, 0. XXXVII, R. 13.
Chapter 13 Supplemental and Special Proceding 193
cannot be exercised in routine manner. *This process is never meant as a lever for
the plaintiff to coerce the defendant to come to terms. Hence utmost caution and
circumspection should guide the court. The court must advert to the provisions of
the Code in this regard, advert to and investigate the allegations thrown against the
defendant, satisty itself that a case for attachment before judgment has been made
out and then pass the requisite order. These principles have come to be recognised as
mandates to the Court and if the Courts act in breach thereof, such an order of the
Court will have to be ignored as the result of dereliction of duty."" Attachment
before judgment made without giving an opportunity to the defendant to furnish se-
curity shall be void." The attachment of property must be made in the manner
provided tor the attachment of property in execution of adecree under O. XXXVII,
R. 7. Under the said order, R. 11A, an attachment made before judgment in a suit
which is dismissed for default will not become revived ipsofacto on the restoration of
the suit after setting aside of the order of dismissal for default. Where the Supreme
Court appointed a receiver and possession was handed over to him, attachment
would stand released."
Where any claim is made in respect of such property, it shall be decided in the
same manner as provided tor attachment of property in execution of a decree. Such
attachment shall not affect rights of persons not parties to the suit if such rights were
existing prior to the attachment. The provision for attachment before judgment is
not applicable where the property has already been disposed of and the purchaser
has a right to object to attachment as he had become owner of the property before
the filing of the suit." Mere non-appearance of the defendant despite servic f
notice, if the defendant is in financial strain is not sufticient and does not justity an
order for attachment before judgment.""
13.2 TEMPORARY INJUNCTION [ORDER XXXIXI

An injunction is a judicial remedy prohibiting persons from doing a specified act or
commanding them to undo some wrong or an injury. The relief of injunction is in
the nature of declaratory and equitable." In the former sense, it is called a restrictive
injunction and in the later, a mandatory injunction."
Injunctions are of two kinds, namely, () temporary; and (i) permanent.

Temporary injunctions are such as are to continue until a specified time, or until the
further order of the court. They may be granted at any stage of a suit, even before
the service of summons upon the defendant and are governed by the Code. An
18. Maudala Suryanarayana v. Barla Babu Rao, AIR 2010 (NOC) 573 (DB) : (Misc. Appeal No. 997 of
2009dt. 6.11.2009..
19. T. Srinivasan v. V. Srinivasan, AIR 1985 Mad. 269
20. RBM Pari Joint Venturev. BengalBuilders, AIR 2004 Cal 58.
21. Chhagan Lal v. Kamal Chand, (2008) 3 SCC 303.
22 Subhash Bhimshanker Kalase v. State Bank of India, AIR 2005 Bom 165.
5. RBM Pati Joint Venturev. BengalBuilders, AIR 2004 Cal 58.
24. Saraswati Co-op Bank v. CM Shah, AlR 2002 Bom 203.
25. Ryan v. P.N. Juneja & Sons, 163 (2009) DLT 14.
26. Black's Law Dictionary, sixth edn.
injunction is in the nature of a preventive relief granted to a litigant because he fears

furure possible injury. A perpetual injunction can only be granted by a decree made
at the hearing and upon the merits of the suit; the defendant is thereby perpetually
enjoined from the commission of an act, which would be contrary to the rights of
the plaintiff. Perpetual injunctions are governed by the Specific Relief Act, 1963."
A temporary injunction may be granted in any of the following cases:
(a) where any property in dispute in the suit is in danger of being wasted,
damaged or alienated by any party to the suit, or wrongfully sold in
execution of a decree;
(6) where the defendant threatens to dispose of his property with a view to
defrauding his ereditors;
(where the defendant threatens todispossessthe plaintiff; or
(d) where the defendant is about to commit a breach of contract, or other
injury of any kind.
Illustrations
(1) A trustee threatens to sell trust property in breach of the trust. The
beneficiary may sue for an injunction to prevent the breach, and may at any
time after the plaint is admitted apply for a temporary injunction to restrain
the trustee from sellingg the propertry until the hearing and final disposal of
the suit.
(2) A lets certain lands to B, and B contracts not to dig sand or gravel thereat. Bis
about to dig sand out of the lands in violation of his contract. A may sue for an
injunction to restrain B from digging sand, and may apply for a temporary
injunction as in illustration (1).
(3) A pollutes the air with smoke so as to interfere materially with the physical
comfort of his neighbour B. B may sue for an injunction to restrain the
pollution, and may apply for a temporary injunction as in illust (1).
As a general rule, the court is required to issue a notice to the defendant before
issuing any injunction. However, where it appears that delay would defeat the object
of granting injunction, the court may issue injunction without even giving notice to
the defendant. It is called ex parte or ad interim injunction. Where the Court is
satisfied that a case for the grant of ex parte injunction without issuing notice to the
opposite party is made out, proviso to rule 3 obligates the court to record reasons
which is not a mere formality but a mandatory requirement.
In Shiv Kumar Chadha u. MCD," the Supreme Court held that:
The requirement for recording the reasons for grant of ex parte injunction
cannot be held to be a mere formality. This requirement is consistent with the
principle, that a party to a suit, who is being restrained from exercising a right
27. Specific Relief Act, 1963, ss. 38-42.

28. Shiv Kumar Chadha v. MCD, (1993) 3 SCC 161.
Chapter 13 Supplemental and SpecialProceedings
195
which such party claims to exercise either under a statute or under the
common law, must be informed why instead of following the requirement of
Rule 3, the procedure prescribed under the proviso has been followed. The
party who invokes the jurisdiction of the Court for grant of an order of
restraint against a party, without affording an opportunity to him of being
heard, must sacisfy the Court about the gravity of the situation and Court has
toconsiderbrieflythesefactorsin theexparte order.. it isheldthat
the compliance of the proviso aforesaid is optional and not obligatory, then the
introduction of the proviso by the Parliament shall be a futile exercise and part
of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of
Order 39 of the Code attracts the principle, that if a statute requires a thing to
be done in a particular manner, it should be done in that manner or not all."
When it is granted, the plaintiff is required to send copies of documents, plaint and
affidavit in support of application for injunction to the defendant immediately and
to file an affidavit which is done on the same or next day. If the plaintiff has made a
false statement or suppressed material facts, such ex parte injunction is liable to be
vacated forthwith. If x parte injunction is confirmed after hearing and final disposal
of the suit, it can be subsequently modified, discharged or set aside if there is a
change of circumstances which necessitatesuch variation or discharge or if it causes
undue hardship. Under the second proviso to R. 4 of O. XXXIX of the Code the
court is empowered to discharge, vary or set aside the order of injunction on an
application made by any party, dissatisfied with the order of injunction, provided
there is a change in the circumstances or the court satisfies that the order caused
undue hardship to that party." If a party willfully disobeys the injunction or
commits breach thereof, the court has power to commit him to civil prison or to
attach and sell his properties. If any movable property of perishable nature is a
subject-matter of suit, there is also a provision enabling the court to sell it.
While passing an interim order of injunction under O. XXXIX, R. 1 of the Code,

the court is required to consider three basic principles, namely:
) the plaintiff hasaprimafaciecaseof infraction oflegalrights;

Gi) the balance of convenience is in favour of the plaintiff; and
ii) the plaintiff will suffer irreparable loss which cannot becompensated in
terms of money."
The grant of an injunction is a discretionary remedy and an equitable relief and even
if the above three conditions are satisfied, the court is not bound to grant interim
relief However, the court is under an obligation to undo the wrong done to a
party by the act of the court. Any undeserved or unfair advantage gained by a party
invoking the jurisdiction of the court must be neutralised, as an institution of
29. HotelLeela Venture Lid. v. YaseenBegum, 2009 (1) ALD 519 : 2009 (1) ALT 386 (DB).
30. Kishor Singh Ratan Singh Jadeja v. Maruti Corporation, (2009) 11 SCC 229 (238) : AIR 2009 SC 2882
: 2009 (5) Scale 229.
31. Gujaras Botling Co. Ltd. u. Coca Cola Co, AIR 1995 SC 2372: (1995) 5 SCC 54.
litigation cannot be permitted to confer any advantage on a suitor from delayed

action by the act of the court. There are equitable considerations, eg, the conduct
of the applicant, the delay in filing the application, which have to be carefully
weighed before issuing temporary injunction. Since the power of the court is
discretionary, it can be exercised and injunction granted under the inherent powers,
when judicial intervention is necessary to protect the applicant, even though the
relevant provisions of the Code are not satistied." At the same time injunction may
not be granted if it caused administrative inconvenience or results in public mischief
or perpetuates an illegalicy or where a party does not come before the court with
clean hands. Further ifa party fails to prove prima facie case to go for trial, it is not
open to the court to grant injunction in his favour even if, he has made out a case of
balance of convenience being in his favour and would suffer irreparable loss and
injury if no injunction order is granted. Conduct of the parties is also a relevant
consideration for the grant of injunction."
Another species of injunction is known as anti suit injunction. When a court
restrains a party to a proceeding before it from instituting or prosecuting a case in
another court including a foreign court, it is called anti suit injunction. This power
should be exercised sparingly because such an injunction though directed against a
person, in etfectcausesinterference in exercise of jurisdiction of another court.
Either party to the suit, plaintiff or defendant, may apply for the grant of
temporary injunction. An injunction may be issued only against a party to the suit
and not against a third party, and further only against persons within the juris-
diction of the court. The plaintiff must prove that a right to sue has accrued in his
fovour. No suit can be filed by the plaintiff to protect a right of a third party.
Appeal against an interim order is maintainable." Where an injunction order is
neither extended nor vacated after a particular date, it shall not remain operative
thereafter." At all events, the high court will desist from issuing an ex parte
mandatory injunction. Such interim orders are issued in exceptional cases only
where failure to do so will lead to an irreversible or irretrievable situation. The
provision under R. 10, O. XXXIX of the Code is to take care of the cases of
violation or breach of court order."
Res judicata on injunctions.-The res judicata applies to different stages of the

same suit or proceeding.
32. Amarjeet Singh v. Devi Ratan, AIR 2010 SC 3676 (3681): (2010) 1 SCC 417.
33. Manohar Lal Chopra v. Hira Lal, AlR 1962 SC 527.
34. Kashi MathSansthanv. Srimad Sudbindra Tritha Swamy, AIR 2010SC 296 (299) :(2010) 1 SCC 689.
35. Mandali Ranganna v. T. Ramchandra, (2008) 11 SCC 1 (9-10): AIR 2008 SC 2291.
36. Modi Entertainment Network v. WSG CricketPre Ltd., AIR 2003 SC 1177: (2003) 4 SCC 341.
3.Calcutta Swimming Club v. Lalit Singh,2009 (2) Cal HN 379 (384) (DB).
38. Magna Publishing Co. Ltd. v. Shilpa S. Shetty, AIR 2008 SC 681.
39. Arjan Singh u. Punit Ahluwalia, (2008) 8 SCC 348 (355, 357).
40. Sate Bank of Patiala v. Vincsh Kr. Bhasin, AIR 2010 SC 1542: (2010) 4 SCC 368.
41 Stm Ld vuProdataDoctor Pt. Lad, 2009 (112) DRJ 345: 2009 (41) PTC 626: 2010
(1) AD (Dlhi) 286.
Chapter 13 Supplemental and SpecialProceedings 197
In Arjun Singh v. Mohindra Kumar, "if interim injunction is once granted or
refused by the court, the said power will operate till the disposal of the suit or
throughout the proceeding. An application for granting or vacating injunction will
lie if there are changed circumstances."
13.3 RECEIVER [ORDER XL]

A receiver is an impartial person appointed by the court to collect and receive the
rents, issues and profits of land or personal estate pending proceedings, where the
court does not deem it reasonable that either party should collect or receive such
rents, issues or profits and to enable their distribution to the persons entitled."
When a court receiver is appointed in respect of any property, he acts on behalf of

the court and holds the property for the benefit of the true owner." He does not
become an assignee or a beneficial owner and the property does not vest in him in
his own right.
A receiver is an officer or representative of the court, and subject to its orders. He
has no power to deal with the property without the leave of the court. The court
receiver cannot encumber the property in any manner without the leave of the
court. It is the obligation of the court, as well as the receiver to preserve and
maintain the property as far as possible and practicable in the same form in which it
was when it was taken in possession, and to maintain status quo. A receiver cannot
sue or be sued except with the leave of the court. "No such sanction is, however,
necessary prosecute the receiver for a criminal offence alleged to have been
committed by him by abusing his authority as receiver."" He cannor delegate his
duties. If any loss is occasioned to the property by the wilful default or negligence of
a receiver, the loss, so far as it is not made good by the receiver, is to be borne by all
the parties. The court receiver in his endeavour to protect the property cannot seek
to make any profits as an agent of the court. 7
Appointment of a receiver pending suit is a matter which is within the

discretionary jurisdiction of the court. Ordinarily the court would not appoint a
receiver save and except on a prima facie finding that the plaintiff has an excellent
chance of success in the suit." lt is a serious matter involving serious consequences
9
and recourse to this remedy may be taken by a court only as a last resort."
42. Arjun Singh v. Mohindra Kumar, AIR 1964 SC 993.

43. Kerr on Receivers, sixteenth edn., 1983, p. 3; Maharaja Jagat Singh v. Sawai Bhavani Singh, AIR 1993
SC1721 :1993 Supp (2) SCC 313.
44. Usha Harshad Kumar Dalal v. ORG Systems, (2000) 1 SCC 742.
5. Tbid.
46. K.Shyamalambalv. M.S,Ramamurthi,AIR 1948 Mad. 318.
47. Pradeep C Modi v. Sashikant C Mody, AIR 1998 Bom 351.
48. Parmanand Pasel v. Sudha A Chowgule, AIR 2009 SC 1593: (2009) 11 SCC 127 (938).
49. B Sanjeevamma v. YPuranamma, AIR 1984 AP 28 (DB).
Status of Receiver.-In Jagat Tarini Dasi v. Naba Gopal Chaki," the status of
receiver has been appropriately explained in the leading case in the following words:
The receiver is appointed for the benefit of all concerned; he is the

representative of the court, and of all the parties interested in the litigation,
wherein he is appointed. He is the right arm of the court in exercising the
jurisdiction invoked in such cases for administering the property; the court can
only administer through a receiver."
When it appears to the court to be just and convenient, and also when there is prima
facie case in favour of the plaintiff and the case calls for taking of urgent measure like
appointment of receiver and the overall necessity to balance the interests of both
parties requires," the court may by order appoint a receiver of any property, at any
stage of a suit, whether before or after decree, and commit the same to his possession
and management. The object behind appointment of receiver is to preserve the
property in dispute pending judicial determination of the rights of the parties to it.
The appointment of receiver ensures that rights of parties are not jeopardised and
that injury to suit property is prevented. It is one of the hardest remedies which the
law provides for the enforcement of a party's right to property, and shall not be
lightly resorted to.
The appointment of a receiver, like injunction, is an equitable relief and is a
discretionary power of the court. Before appointment of a receiver, the court
considers and takes into account the totality of circumstances, the ends of justice
and the protection of the rights of the parties to the suit. The court may appoint a
receiver not as a matter of course but as a matter of procedure, having regard to the
situation. The court may confer upon the receiver all such powers (1) as to bring
and defending suits; (2) the realization, protection and management of the property;
3) the collection and application of the rents thereof; and (4) the execution of
documents as the owner himself has, or such of those powers as the court thinks fit.
Thus, in a suit for dissolution of a partnership and for partnership accounts, the
court may appoint a receiver of the partnership assets. Similarly, in a suit for
partition of joint property, the court may appoint a receiver of the property. A
receiver may also be appointed in a suit for the administration of the estates of the
deceased person, especially where there is no executor or administrator of the
property. The remuneration to be paid to the receiver is fixed by the court.
It is important to note that the mere fact that it is convenient to apPoint a receiver
or that appointment of receiver will do no harm to any one is no ground for
appointing a receiver. It must be just to appoint a receiver. Thus, if the case is one in
which the plaintiff has not a present right to remove the defendant from the
50. Jagat Tarini Dasi v. Naba Gopal Chaki, ILR (1907) 34 Cal. 305.
51. Vijay L Mehrotra v. State of Uttar Pradesh, (2001) 9 SCC 687.
52. Kalpana Kothari v. SudhaYadav, (2002) 1 SCC203.
53. N.KodandaramaReddyy. G.I.K. Sangha,2008 (1) Kar LJ 703 (711).
54. ICIClv. Karnataka Ball Bearing Corp Ltd., (1999) 4 LRI 829.
55. Salma Majhi v. Birja Majhi, AIR 2004 Ori 46.
Chapter 13 Supplemental and Special Procedings 199
possession of property, the court will not remove him from possession and commit
the possession to a receiver.
As the property in the hands of the receiver is in custodia legis, any obstruction or
interference with him will amount to a contempt of court.
The receivers appointed by the court are expected to submit periodical
accounts/reports to the court with copies to the parties. If their assigned task is
completed, they should be discharged. They cannot continue as receivers for
decades, without doing anything and holding on to the amounts entrusted to them
in trust. When any money belonging to the parties is entrusted to the receiver, he
should deal with it as per the directions of the court."
The court can appoint receiver even on an application under S. 151 of the Code
and even on an application by a stranger." An order appointing a receiver cannot be
revoked or set aside merely because of the absence of the applicant on the day of
delivery of possession of the property. An order appointing a receiver would not be
proper where no prayer was made therefor, no application was filed and no reason
was assigned in support of such appointment. Even show cause notice was not issued
to party. Also there was no prima facie finding arrived at warranting the
appointment of thereceiver.
One may apply for the appointment of a receiver and for an injunction at the
same time. In fact it is advisable to do so, for a case may not be a fit one for the
appointment of a receiver, and yet it may be a fit one for an injunction against the
defendant. Though it is usual to do so, it is not necessary to have any prayer in the
plaint for an injunction or for a receiver. A party may apply for an injunction or for
a receiver at any stage of a suit, and he may support his application by an atfidavit or
affidavits.
13.4 SECURITY FOR coSTS [ORDER XXV]

A defendant may at any stage ofa suit apply to the court for an order requiring the
plaintiff to give security for the payment of costs incurred and likely to be incurred
by the defendant in defending the suit. In this case, the court can make the order
applied for. The object of this rule is to provide for the protection of defendants in
cases where, in the event of success, they may have difficulty in realising their costs
from the plaintiff. This provision cannot be used in cases in which the plaintiff is
not liable for the costs of the suit, eg., an administration suit by a legatee.
A defendant desirous of applying for security for the costs must do so promptly.
S6. Kanhaiya Lal v. DR Banaji (Dr), AIR 1958 SC 725; Everest Coal Co. Pvt. Ld. v. State of Bihar, AIR
1977 SC 2304 : (1978) 1 SCC 12.
57. Amol Kumar Ghoshv. Basant Kr. Almal, (2010) 11 SCC 78 (83).
58. Shib Shanker Rudra v. Jyolirmoy Rudra, AIR 2004 Cal 54.
59. Bhasker Adiya v. Minati Majumdar, AIR 2003 Cal 178 (DB).
60. Balbir Singh v. Sanjay Dave, JT 2000 (7) SC 394: AIR 2002 SC 3563.
61. Three Cheers Entertainments Put. Lsd. u. CESC Ltd., AlR 2009 SC 735 (740) : (2006) 12 SCC 592.
13.4.1 Discretion of the Court

If it appears necessary, the court may order the plaintiff to furnish security.
However, there is one exception. If the plaintiff is residing abroad and he does not
possess sufficient immovable property within India, it is obligatory upon the court
to pass an order requiring the plaintiff to furnish security.2
No such security can be demanded from a person granted leave to sue as a pauper
and, except in exceptional circumstances, from a minor plaintiff or his next friend
even if both, the minor and his next friend, have no immovable property and reside
out of India.
Where the security is not furnished within the time fixed, the court will dismiss
the suit. Such dismissal can be set aside if there was sufficient cause which prevented
the plainiff from furnishing security.
13.5 WITHDRAWAL OF SUITS [ORDER XXII, RULES 1-2]

The Code under O. XXIl provides for the withdrawal and adjustment of suits and
deals with two kinds of withdrawal and adjustment:
() absolute withdrawal, i.e., withdrawal and adjustment withour the leave of

the court; and
(ii) qualified withdrawal, i.c., withdrawal and adjustment with the leave of the
Court.
A plaintiff may find after the institution of a suit that he has no chance of success. In
such a case he may under O. XXII, R. 1(1), proviso, withdraw the suit, instead of
proceeding with it and incurring further costs. This is an absolute and unqualified
right of the plaintiff and the court has no power to refuse permission
to withdraw
the suit or to direct to him to proceed with it. Where the withdrawal of the suit is
uncondiional such prayer cannor be rejected," unless there exist extraordinary
circumstanceswarranting refusal.The withdrawal of suit by unilateral request of
plaintiff merely on the ground that the counsel for the defendant did not raise any
objection for the acceptance of request of the plaintiff for withdrawal, it cannot be
said that withdrawal was, in any way, conditional." However, suit where the
plaintiff is a minor or a person of unsound mind, the suit cannot be withdrawn
without the leave of the court.
Where the plaintiff withdraws the suit without seeking permission to file a fresh
one, costs can be imposed on the plaintiff. And after such withdrawal (without
62. Revlon Inc. do Ors v. Kenco Chemicals, AIR 1987 Cal 285.
63. K.S. Bhoopathy v. Kokila, (2000) 5 SCC 458.
64. Mahadkar Agencyv. Padmakar Archana Shety, AIR 2003 Bom 136.
65. SamdeshLd. v. Chandulal Jethalal Jaiwa, AIR 2005 Guj 219.
66. Pushpa Devi v. Rajeev Kharbanda, AIR 2011 P&H 83 (86).
seeking permission to file a fresh suit) the second suit shall be barred."" This bar
regarding the second suit is based on public policy and is applicable to writ petitions
as well. The principle underlying Rule 1 of Order XXIlI of the Code is that when
a plaintiff once institutes a suit in a Court and thereby avails of a remedy given to
him under law, he cannot be permitted to institute a tresh suit in respect of the same subject-
matter again after abandoning the earlier suit or by withdrawing it without
the permission of the Court to file fresh suit. Invito beneficium non datur. The law
confers upon a man no rights or benefits which he does not desire.""However,
withdrawal of writ petition without seeking permission to file a fresh petition on the
ground of pursuing alternative efficacious remedy is permissible."
An appellate court cannot set aside the judgment and decree of the trial court and
permit withdrawal of the suit. Permitting withdrawal of the suit at the appellate
stage would not allow the plaintiff to avoid the decree passed against him, but also
make the defendant lose the advantage of the adjudication of the dispute in his
favour." The rights which have come to be vested in the parties to the suit under the
decree cannot be taken away by withdrawal of the suit at the appeal stage. There is
no express bar in filing an application for withdrawal of the withdrawal appli-
cation.'"
There is no provision in the Code for recall of an order permitting withdrawal. In
the absence of a specific provision providing for recalling of an order permitting
withdrawal of suit, the provisions of S. 151 can be resorted to in the interest of
Justice."4
A plaintiff again, may find that he had a good chance of succeeding on the merits
of the case, but that his suit must fail by reason of some formal defect. In such a case
he may apply to the court for leave to withdraw from the suit with libery to
institute a fresh suit in respect of the subject-matter, thereof, and such leave may be
granted upon such terms as to costs as the court thinks fit." If the court is satisfied
that there are sufficient grounds for allowing the plaintiff to institute a fresh suit for
the same subject-matter, it may grant leave to withdraw from such suit with liberry
reserved in favour of the plaintiff accordingly. The primary object behind allowing
the withdrawal of suit with liberty to file a fresh one on the same cause of action, is
to prevent the defeat of justice on technical grounds. An application to withdraw a
suit with liberty to file a fresh suit may either be allowed or refused in toto. Where
the court does nor grant the leave, it can dismiss only the application for liberty, but
67. Sarguja Transport Service v. STA Tribunal, Gwalior, AIR 1987 SC 88: (1987) 1 SCC 5.
68. Upadhyay d Co. u. State of Uttar Pradesh,AIR 1999 SC 509: (199) 1 SCC 81.
69. Sarguja Transport Service v. STAT, (1987) 1 SCC 5
70. Haryana State Co-op LandDevelopmentBank u. Neelam, AIR 2005 SC 1843 (2005) 5 SCC 91.no
71. Mangal Ram v. Chura Dut, AIR 2003 HP 143.
72. RRathinavel Chettian v. Sivaraman, (1999) 4 SCC 89.
73. Rajendra Prasad Gupta v. Prakash Chandra Mishra, 2011 (1) Scale 469: AlR 2011 SC 1137: (2011) 2
SCC 705.
74. Jet PlywoodPur. Lid. u. Madhukar Naulakha, AIR 2006 SC 1260: 2006) 3 SCC 699.
75. As to compronT see below.
76. Sheo Kumar v. Thakurji Maharaj, AIR 1959 All 463.
not the suit." In cases of qualified withdrawal of suit by the plaintiff, principle of
estoppel does not operate, nor does the bar of res judicata apply. However, the
plaintiff is bound by the law of limitation in the same manner as if the first suit had
not been instituted. The plaintif cannot claim deduction of the time during which
the suit which was withdrawn was pending, under S. 14 of Limitation Act, 1963.
The term 'formal defect must connote such defect which does not pertain to the
merits of the case and refers to a defect of form or procedure and not of
substance." 'Sufficient grounds' must be interpreted independently of the term
'formal defect and cannot be read ejusdem generis with 'formal defect'. It gives a
wide discretion to the court. In a suit for possession, non-joinder of co-owners as
parties in suit is nota formal detect. In such case the court should not grant permi-
ssion to withdraw the suit with a liberty to file a fresh suit on same cause of action."
Where a suit is abandoned or withdrawn by a plaintiff and the defendant applies for
transposition as a plaintif, the court shall consider such application having due
regard to the question whether the applicant has a substantial issue to be decided as
against any of the other defendants according to O. XXIII, R. 1A of the Code.
Application of O. 23 Rule 1 and 2 to other proceedings.-"The provision applies
to appeals and writ petitions only and not to execution proceedings."
13.6 PAYMENT INTO COURT [ORDER XXIV]

As it is competent for a plaintiff to withdraw his suit, so it is competent for a
defendant in a suit for debt or damages to deposit in court such sum of money as he
considers a satisfacion in full settlement of the claim. Such deposit may be made at
any stage of the suit. It is usually made at the time of presenting the written
statement; where it is so done, it is desirable to add a paragraph in the written
statement in the following form: "The defendant as to the whole claim (or as to
Rs.part of the money claimed) has paid into court Rs..and says this sum is
enough to satisfy the plaintiffs claim. Such deposit stops running of interest. Mere
willingness to pay is not sufficient and does not stop the running of interest. The
deposit should be unconditional, as conditional deposit does not stop the running of
interest. Norice of the deposit is then given to the plaintiff, and the plaintiff may
then with he leave of the court withdraw the amount. The procedure that follows
may be explained by an illustration. A sues B to recover Rs. 5,000. B deposits
Rs. 4,000 in court in full sarisfaction of the plaintiff's claim. IfA accepts the amount
as satisfaction in full of his claim, the only question that remains is one as to costs.
Thus, if no demand was made by A before suit, the court may not allow him any
costs. In making its orders as to costs, the court should consider which of the parties
is most to blame for the litigation. If A accepts the amount as satisfaction in part
only of his claims, he may prosecute his suit for the balance; and if the court decides
77. Mario Shaw v. Martin Fernandes, AIR 1996 Bom 116.

78. Khatuna v.RamsewvakKashinath, AIR 1986 Ori 1.
79. Khatuna v. Ramsevak, AIR 1986 Ori 1.
80. Homeo Dr. TK Prabhawati v. CP Kunhathabi Unema, AIR 1981 Ker 170.
81. Pranjivandas Virjibahi v. PM Modi, AIR 2011 Guj 89 (92).
Chapter 13 Supplemental and Special Procedings
203
that A is not entitled to more than Rs. 4,000, he will have to pay the costs incurred
after the deposit. However, in neither case will interest be allowed to A on Rs. 4,000
after the notice of the deposit is served upon A.
If in the case put above B admits by his written statement that Rs. 4,000 are due,
but does not deposit the amount in court, A may at once apply for a judgment for
Rs. 4,000. This is called judgment on admission. However, A cannot in that case
prosecure his suit for the balance as has been stated by O. XII, R. 6.
13.7 COMPROMISE OF SUITS [ORDER XXII, RULE 3]

The Code also deals with the compromise of suits and the effect of such compro
mise.
It is open to the parties to a suit to compromise the suit and adjust or settle the
dispute berween themselves by agreement and compromise, and apply for a decree
in terms of the compromise. Where the compromise was not the outcome of fraud
and was not away from authority of power of attorney-holder, the consent order
passed by the high court cannot be said to be anything but proper and valid." If the
court is satisfied that the suit has been compromised, and that the compromise is
lawful, i.e., not illegal; it is the duty of the court to pass a decree in accordance with
the compromise. The consent decree would be valid where compromise terms are
entered into by power of attorney holder on behalf of parties."\WWherethe purported
settlement is not lawful, the court's order recording the same would not be
enforceable. Further, if the agreement or compromise is in violation ofa special
statute, the court would refuse to record the same. Where joint compromise
petition was filed by the parties before the Supreme Court and terms and conditions
of the compromise was duly singed by the parties, appeals were disposed of in terms
of the compromise. "A compromise decree does not stand on a higher footing than
the agreement, which preceded it. A consent decree is a mere creature of the
agreement on which it is founded and is liable to be set aside on any of the grounds,
which will invalidate the agreement."
The agreement, compromise or satisfaction may relate to the whole of the suit or
part of the suit or it may also include beyond the subject matter of the suit.
Such a decree is called a consent-decree. Directions passed by court on the basis of
statements made at the bar, amount to an executable decree by consent. lf any party
82. United Telephone Co. v. Donohue, (1886) 31 Ch D 399.

83. Shanti Budhiya Vsta Patel v. Nirmala Jaiprakash Tiwari, AIR 2010 SC 2132 (2010) 5 SCC 104; see
also Chitra Constructions P'vt Ltd. v. S. Subramanyam & Co., AIR 2008 (NOC) 2501 (Mad); Santosh v.
JagatRam, (2010) 3 SCC 251.
84. S.B.V. Patel v. N.J. Tiwari, (2010) 5 SCC 104: (2010) 6 MLJ 616 (SC).
85. Dwarka Prasad Aggarwal v. BD Aggarwal, (2003) 6 SCC 230: AIR 2003 SC 2686, see aso Arjan Singh
. Punit Ahluwalia, AR 2008 SC 2718 (2720) : (2008) 8 SCC 348;SnehaGupta v. DeviSarup,(2009)
6 SCC 194.
86. Roshan Lal v. Madan Lal, AIR 1975 SC 2130: (1975) 2 SCC 785.
87. Kishore K. Sippy v. Vaishnav S. Puri, (2008) 12 SCC 770.
8. RubySales &Services(P) Lta. v. State ofMaharashtra, (1994) 1 SCC 531.
89. Anil K. Surana v. State Bank of Hyderabad, (2007) 10 SCC 257.
to the suit is a minor, the suit cannot be compromised without the leave of the court
expressly recorded in the proceedings. Such leave may be refused if the court is of
opinion that the compromise is not for the benefit of the minor as given in O. XXXII,
R. 7. Leave of the court is also required for compromise in a representative suit.
When an order is passed on compromise and the terms of compromise are

incorporated in the order, it becomes part of the order of the court and the terms
should be strictly enforced." A decree remains valid unless set aside. Where a
consent decree was never challenged and it was acted upon, the respondents had
disposed of a property pursuant thereto and thus took advantage of a part thereof, it
was impermissible for them to resile therefrom."" The compromise must be in
writing and signed by parties. A compromise not signed by parties or counsel
offends R. 3, and as such is not enforceable."It need not be confined to the subject-
matter of the suit, although it must relate to the parties to the suit. Therefore, the
court shall pass a decree in accordance with the compromise even if it travels beyond
the scope of the suit. The lawyer or counsel is competent to sign consent terms on
behalf of the parties. A compromise decree passed on the statement made by the
counsel for the partry if authorised to make such a statement would be valid." A
judgment by consent is intended to stop litigation between the parties. It creates an
94
estoppel by judgment.
No appeal lies from a consent decree passed on the basis of a compromise. 'O. 43 R.
1-A (2), however, lays down that in an appeal against a decree passed after recording
or refusing to record a compromise, the order recording or refusing to record a
compromise can also be questioned. A party challenging the compromise can file an
appeal under section 96(1) of the code and Section 96(3) shall not bar such an
appeal.However, a compromise decree strictly speaking cannot operate as res
judicata." "A compromise decree is not a decision of the court. It is acceptance by the
court of something to which the parties had agreed. A compromise decree merely sets
the seal of the court on the agreement of the parties. The court does not decide
anything. Nor can it be said that a decision of court is implicit in it. Hence, a
compromise decree cannot operate as res judicata. In a consent decree, it cannot be
said that a suit is heard and finally decided by the court on merits. Such a decree,
however, may create an estoppel between the parties." A compromise decree may be
avoided on the grounds like fraud, undue influence, or coercion, but until it is avoided
and displaced, it would be treated as lawful. An application for review or an
application under S. 151 would be the proper remedy for getting the consent decree
90. Salkia Businesmen'sAssociationv. Hourah Municipal Corpn, AIR 2001 SC 2790: (2001) 6 SCC 688.
91. Deepa Bhargava v. Mahesh Bhargava, (2009) 2 SCC 294.
92. SPMinocha v. Lila Ram, AIR 2002 Del 223.
93. Rajinder Singh v. Pushpa Devi Bhagat, AIR 2004 Del 228.
94. Byram Pestonji Gariwala v. Union Bank of India (1992)1 SCC 31; Prithvi Chandv. Shinde (1993) 3
SCC 271.
95. Banwari Lal v. Chando Devi, (1993) 1 SCC 581.
96. Subba Rao u.JaganadhaRao, AIR 1967 SC 591; Byram Pestonji Gariwala v. Union Bank of India, AIR
1991 SC 2234.
97. Byram Pestonji u. Union Bank of India, (1992) 1 SCC 31.
Chapter 13 Supplemental and Special Procedings 205
set aside. However, a civil suit would be barred.' "Under O.23 Rules, 3 and 3A, a
separate suit was not maintainable and that the only remedy available to the aggrieved
party was to approach the Court which had passed the compromise decree.
For a period of 15 years after the compromise decree and the execution of the sale
deed plaintiff had not raised any question with regard to the authenticity or
genuineness of what is stated in the will and the compromise decree In these
circumstances, the compromise decree must pass the test of acceptability.
(B) SPECIALPROCEEDINGS
13.8 SPECIAL CASE SECTION 90; ORDER XXXVIJ

There are certain suits which are called 'friendly suits'. What is done in such cases is
that the parties do not institute a suit by presenting a plaint, but they enter into an
agreement in writing, stating the question of fact or law in the decision whereof they
are interested in the form of a case for the opinion of the court and providing that
upon the tinding of the court with respect to such opinion, one of them shall pay a
certain sum of money or deliver certain property to the other or that one or more of
the parties shall do, or refrain from doing, some other particular act specified in the
agreement. The agreement is then filed in court and numbered and registered as a
suit berween one party as plaintitf and the other as defendant. Where more than one
person enters into an agreement for seeking opinion of the court, the case of each
individual shall be registered as a separate case. The case is then set down for
hearing as a suit; it is then heard and a judgment is pronounced in the same way as
in an ordinary suit, and upon the judgment so pronounced a decree follows.
Where the agreement for reterence is not drawn in accordance with the provisions
of O. XXXVI, the court cannot assume jurisdiction to decide such reference. If the
estimated value of the subject matter is not mentioned, the case cannot be registered
as a suit and a judgment rendered in a case without fulfilment of the requirements of
R. 2 is without jurisdiction.
13.9 DEATH,MARAIAGE AND INSOLVENCY OF PARTIES

[ORDER XXII]
23/112l:
Let us assume for the purpose of this part of the chapter, three suitsS wich the
following paties in each:
)Av. C;
() Aand Bv. C;
Si SriIswarGopalJenv.BhagwandasShan,AIR 1982Cal 12.

2 R Rajanna v. S.R Venkataswamy, AIR 2015 (SC) 706.
3. Dolfy A Pias @Adolphys Joseph Pais, (2014) 10 SCC 731.
amdhan Sinha v. Norified Area Authoriy, AIR 2001 Gau 149.
5. Tbia.
206|
(iii) Av. C and D.
The first question we have to consider is what happens to the suit on the death of
any of the parties to the said suit before decree.
Suppose that in the first case, A dies pending the suit. Can his legal representative
prosecute the suit? The answer depends upon whether the right to sue survives
'Right to sue' means the right to bring a suit or the right to seek relief." And if the
right to sue survives, A's legal representative, i.e., roughly speaking, his executor or
administrator as stated in S. 2, cl. 11 may prosecute the suit. If it does not, the suit
abates, and it cannot be proceeded with further. 'If the entire suit claim was founded
on torts the suit would undoubtedly abate. If the action was founded partly on torts
and partly on contract then part of the claim as relates to torts would stand abated
and the other part would survive. If the suit claim was founded entirely on contract
then the suit was required to proceed to trial in its entirety and be adjudicated
upon." In what cases, then, does the right to sue survive? In all cases except where
the suit is for damages for defamation or assault, and cases where, after the death of
the parties, the relief sought could not be enjoyed or granting it would be nugatory.
Where a suit for defamation is dismissed and the plaintiff has filed an appeal, what
the appellant-plaintiff is seeking to enforce in the appeal is his right to sue for
damages for defamation and as this right does not survive his death, his legal
representative has no right to be brought on the record of the appeal in his place and
stead if the appellant dies during the pendency of the appeal. The position, however,
is different where a suit for defamation has resulted in a decree in favour of the
plaintiff because in such a case the cause of action has merged in the decree. Thus,
if A's suit is for damages for defamation, and A dies pending the suit, the suit abates,
and A's legal representative is not entitled to prosecute the suit. Similarly, if A sues B
for divorce, and B dies pending the suit, the suit abates, and A is not entitled to
prosecute the suit against B's legal representative. However, if A sues B for damages
for breach of a contract, and itA or B dies pending the suit, the suit does not abate,
for the right to sue survives." The rule then is that the death of a plaintiff or a
defendant shall not cause the suit to abate, if the right to sue survives in accordance
with O. XXII, R. 1. The provisions contained in O. XXII were devised to ensure
continuation and culmination of suits into an effective adjudication, and not to
retard the further progress of the proceedings and thereby non-suit the others
similarly placed as long as their distinct and independent rights to property or any
claim remain intact and not lost forever due to death of one or the other, in the
proceedings.
6. N Jayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, Kurnool, AIR 1979 SC
1393: (1979) 3 SCC 578.
7. MVerappa v. Evelyn Sequeira, (1988) 1 SCC 556.
8. Indian Succession Act, 1925, S. 501.
9. Melepurath Sakunni v. Thekittil Geopalankutty, (1986) 1 SCC 118.
11. Amarjit Singh Kalra u. Pramod Gupta, AIR 2003 SC 2588: (2003) 3 SCC 272.
However, in either case the application to bring the legal representative of the
deceased on the record must be made within 90 days from the date of the death of
thedeceased, otherwise the suit will abate. " If no application is made, the suit abates
automatically without any order of the court. Abatement is not dependent upon
any judicial adjudication or declaration of such abatement by a judicial order. It
occurs by operation of law. But nevertheless abatement" requires judicial
cognizance to put an end to a case as having been abated." An application to set
aside abatement must be made within 60 days." It is the duty of the legal
representative who had knowledge abour the pending proceedings to engage a
counsel and if any of them fails, the said legal representative is responsible for his
lapse. Ditterent considerations arise in the matter of condoning the delay in filing
an application for setting aside an abatement upon condonation of delay in a suit
and an appcal. It is neither in doubt nor in dispute that such applications should be
considered liberally. The court should take more liberal attitude in the matter of
condonation of delay in filing such an application." Death of appellant during
pendency of appeal. Widow of deceased filing application for substitution after 7
years. The widow had knowledge of pendency of appeal. Her plea that she was told
by her husband that counsel would inform about the hearing of the application,
cannot be a ground to entertain the application for condonation of delay of more
than seven years for preferring the petition for substitution." The legal
representatives having failed to move application for their substitution, cannot be
permitted to file an application under O. 1, R. 10 for impediment being contrived to
Circumventtheprovisions of 0. XXII. "
A suit cannot be revived by substituting legal representatives of the original
defendant who was not alive at the time of institution of the suit." However, if a
suit is filed against a dead person, without the knowledge of death, the court may,
on an application by the plaintiff, permit legal representatives of the defendant to be
brought on record."" "Death of defendant during pendency of appeal before High
Court. Application by a person to be brought on record claiming himself to be son
ofdeceased. High Court allowed the application. Order of High Court set aside -
Held that High Court should have remanded the case to the trial court by taking
recourse to the provision of Order 22 Rule 5 proviso of CP.C. for deciding the
22
question as to whether the applicant was legal representative of deceased.
r617110 21 nrto
12. Limitation Act, 1963, Art. 120..
13. Dhurander Prasap Singh u. JP University, AIR 2001 SC 2552: (2001) 6 SCC 534.
14. Perumon B. Devaswam u. Bhargavi Amma, (2008) 8 SCC 321 (326).
1. LimitationAct, 1963,Art. 121.
16. Acez Sait v. Aman Bai, AIR 2003 SC 4444: (2003) 12 SCC 419.
17. KatariSuryanarayanay. KappisethiSubbaRao, (2009) 11 SCC 183 (187) : AIR 2009 SC 2907.
18. Karam Kaur v. Jalandhar Improvement Trust, 2015 (1) R.C.R.(Civil) 83.
19. Minati Dutta v. Sushil Chaudharry, AIR 2006 Pat 62.
20. Ram Prasad Dagduram v. Vijay Kumar Moti Lal Hirakhanwala, AIR 1967 SC 278.
21. Karuppa Swamy v. C Ramamurthy, AIR 1993 SC 2324: (1993) 4 SCC 41.
22. Karedla Parthasaradhi v. Gangula Ramanamma, AIR 2015 (SC) 891.
Mula The Key to Indian Practice Chapter 13
208
When the legal representatives of a deceased plaintiff are already on record in
their individual capacity. Their fresh impleadment not necessary. A mere note under
Order 22 Rule 2 CPC is sufficient."5
Let us now consider the second case in which we have two plaintiffs. Suppose that
in the second case A dies pending the suit. What is the procedure to be adopted?
This depends upon whether the right to sue survives to the other plaintiff B alone. If
it does, A% name will be struck out, and the suit will proceed with B alone as
plaintiff according to O. XXII, R. 2. Ifit does not, the legal representative of A must
apply to the court to be made a party within the prescribed period from the date of
A's death, otherwise the suit will abate so far as A is concerned. Thus, if the suit is
brought by A and B as trustees, and A dies pending the suit, the right to sue survives
to B alone. On A's death, his name will be struck out, and the suit will proceed with
B alone as plaintiff. However, if the suit is brought by A and B on a promissory note
passed jointly to them by C, the right to sue does not survive to B alone. A's legal
representative therefore may apply to be made a party to the suit within the
prescribed period from the date of A's death. If he does not, the suit will abate as far
as A is concerned."
The third case stands on much the same footing as case II. In case III we have two
defendants. If C dies pending the suit, and the right to sue survives against D alone
as where they are trustees, C's name will be struck out, and A may proceed with the
suit against D alone. However, if the right to sue does not survive against D alone, as
where C is the principal debtor and D his surety, A should apply to bring the legal
representative of C on the record within the prescribed period from the date of C's
death, otherwise the suit will abate so far as C is concerned. No suit shall abate by
reason of the death of either party between the conclusion of the hearing and the
pronouncing of judgment, but judgment may in that case be pronounced,
norwithstanding the death and will have the same force and effect as it had been
pronounced before the death took place." 0. XXII, R. 10-A casts a duty on the
respondent's counsel to inform the court about the deceased respondent and when
death of the respondent is reported and recorded in the order/proceedings and the
appellant has been notified, he cannot plead ignorance." In Gangadhar v. Raj
Kumar," it was observed that 'rule 10-A O.XXII has been introduced in order to
avoid procedural justice scoring a march over substantial justice.'
Where the plaintiff dies, his legal representatives can make an application to be
joined in his place. The court cannot add a legal representative suo motu. The
application can be made by the defendant also. Ordinarily, it is made by legal
representatives of the plaintiff. Where the defendant dies, the plaintiff has to bring
23. D.R Somayajulu,Secretary D.L.S. v. Artili Appala Swamy, 2015 (2) SCC 390.
25. Code of Civil Procedure 1908,O. XXII, R. 6; NP Thirugnanam (decd) by LRs. v. RJagan Mohan Rao,
AIR 1996 SC 116:(1995) 5 SCC 115.
26. Perumen B. Devasuwam v. Bhargavi Amma, (2008) 8 SCC 321 (331).
27. Gangadhar v. Raj Kumar, (1984) 1 SCC 121
Chapter 13 Supplemental and SpecialProceedings
209
his legal representatives on record. The plaintiff has to ascertain who is the legal
representative, and apply for substitution.
Notice is required to be given to the legal representatives of the defendant sought

to be substituted.
This embodies basic principle of natural justice. The object is to ensure that
opportunity of hearing is given before any liability is fastened upon the legal repre-
sentative of the deceased. It is also necessary that where the right to sue survives, the
estate must be represented by some one who can answer the claims of the plaintiff."
Suppose that A sues B for damages for breach of a contract, and that A becomes
insolvent pending the suit. In such a case, if the official assignee wants to proceed
with the suit, he should give security for B'3 costs. If he fails to do within the time
fixed, the suit will be dismissed. But the court may on good cause shown set aside
the dismissal. If B becomes insolvent, the court may stay a suit." The assignee of
rights during the pendency of suit has right to be impleaded as party by stepping
into the shoes of his assigner.""
The above rules apply also to appeals, but they do nor apply to execution
proceedings. There can be no abatement of appeal on the death of one of the
respondents during the pendency of appeal, where some of the heirs and legal
representatives of the respondents were already on record." They also do not apply
torepresentativesuits, " and to arbitration proceedings.
The marriage of a female plaintiff or defendant does not cause the suit to abate.
Where a suit abates or is dismissed under this order, no fresh suit can be brought
on the same cause of action. But the court may, for sufficient cause, set aside the
abatement or dismissal. The expression 'sufficient cause' implies the presence of legal
and adequate reason. The word 'sufficient means adequate enough as much as may
be necessary to answer the purpose intended. The sufficient cause should be such as
it would persuade the court, in exercise of its judicial discretion, to treat the delay as
anexcusable one.*
28. NJayaram Reddi v. Revenue Divisional Officer and Land Acquisition Officer, Kunoor, AIR 1979 SC 1393
:(1979) 3 SCC 578.
2See thePresidency TownsInsolvency Act, 1909,and the InsolvencyAct, 1920.
rdev Singh v. Amarjit Singh, AIR 201l PXH 77 (80).
Mohd. Hussain v. Gopibai, (2008) 3 SCC 233; seealso Mohd. Hussain v. Ocharlal, AIR 2008 SC 1462.
24 ram Panchayatv. Amar Singh, (2000) 10 SCC 644.
3. RaniRamakantv. First Addl CivilJudge, AIR 2006 All 5.
9. Baluant Singh v. Jagdish Singh, (2010) 8 SCC 685 (698).
CHAPTER
14
SUITS IN PARTICULAR CASES
14.1 SCOPE 172

For the purpose of procedure, suits may be divided into two clauses, namely, (1)
suits in general; and (2) suits in particular cases. The procedure indicated in the
previous chapters applies to suits in general. In particular cases, however, a different
procedure is prescribed under the Code, and this is what we have to note in this
chapter.
14.2 NOTICE BEFORE SUIT

In ordinary cases no notice is required to be given to the defendant before suit.
According to S. 80, such a notice, however, is a condition precedent to suits against
the government. It is also a condition precedent to suits against a public officer in
respect of an act purporting to be done by him in his official capacity. The object of
the notice under this section is to give the government or the public officer
Concerned, an opportunity to reconsider the legal position and to make amends or
settle the claim, if so advised, without litigation. The section is a measure of public
policy. The public purpose underlying this section is the advancement of justice and
securing of public good by avoidance ofunnecessary litigation. The language of the
section is express, explicit and mandatory, and does not admit any implication or
exception. The notice should be in writing, and it should state the cause of action,
name, description, place of residence of the plaintiff and relief claimed by him. No
Suit should be instituted until the expiration of rwo months next after the notice has
been served. Such notice has to be served upon a secretary in a case of Central
GOvernment, a general manager in case of railway and a secretary or collector of the
district in case of state government. The notice served on the district collector is
Suficient and complete notice to Government Middle School which was represented
1. Stateof Punjab v. Geeta Iron and Brass Works, AIR 1978 SC 1608: (1978) 1 SCC 68.
2. Bihari Chaudhary v. State of Bihar, AIR 1984 SC 1043: (1984) 2 SCC 627.
through the Education Officer.' However, the suit can be instituted against the
Government without complying with the requirement of serving notice under S.
80(1), only with the leave of the court as enjoined under S. 80(2)." The permission
to institute a suit without notice is to be granted by a speaking and reasoned
order. The court has the power to dispense with the requirement of service of
such notice if it is satisfied that the suit is filed to obtain urgent or immediate
relief. For this purpose, a separate application is ordinarily made for leave of the
court to sue without service of statutory notice. Such leave may be granted if it
appears to the court that if requirement of service of statutory notice is insisted
upon, it shall defeat the purpose or object of filing the suit. However, even in such
cases, the court has no power to grant any interim relief ex parte without notice to
the government. 'A party filing application in Court under Section 80(2) of Civil
Procedure Code seeking leave of Court to file suit against Govt. without issuance
of notice under Section 80(1) of C.P.C. to Govt. authorities. For the purpose of
determining whether such an application should be granted or not the court is
supposed to give hearing to both the sides and consider the nature of the suit and
urgency of the matter before taking a final decision. Till arguments are advanced
and till the trial court is satisfied with regard to the urgency or requirement of
immediate relief in the suit, the court normally would not grant an application
under Section 80(2) of the Civil Procedure Code."
The notice is a legal requirement and not a mere formality, and is different from a
cause of action tor instituting a suit. Unless leave is granted at the time of institution
of the suit, no suit shall be maintainable without such notice. The object is to alert
the state to negotiate a just settlement, and avoid litigation as far as possible.' The
notice has to be read in a broad manner in order to determine whether there is any
meaningful compliance with S. 80. Neither notice nor wordings of S. 80 should be
construed in a narrow or pedantic manner completely divorced from common
sense. If the notice substantially intimates the parties concerned generally of the
nature of the suit intended to be filed, it would be sufficient. The notice must
enable its recipient to identify the claimant. There should be identity berween the
person issuing notice and the person instituting the suit. " A notice of a suit against
the government or a public officer must be delivered to or left at the office of the
appropriate authority. To whom such notice must be sent has also been mentioned
in S. 80. Certain directions have been issued with regard to duty of the government
to reply the notice of the Supreme Court." The notice under this section can be
waived by the parry for whose benefit it has been provided. Fresh notice is required
3. Ram Kumar u.StateofRajasthan,(2008) 10 SCC 73 (78): AIR 2009 SC 4 (8, 9)

4. Bajaj HindustanSugár Industries Lid. u Balrampur Chini Mill Ltd, (2007) 9 SCC 43 (51).
5. Cyanajet Moharana u. Binodini Paanaik, (2009) 107 Cur LT 132 (134-135) (DB).
6. Govt. of Kerala v. Sudhir Kumar Sharma, 2013 (10) SCC 178..
State of Punjab u Geeia Iron and Brass Works, AIR 1978 SC 1608: (1978) 1 SCC 68.
8. Dhian Singh v. Union of India, AIR 1958 SC 274.
Ghastyam Dasvu. Dominion of India, (1984) 3 SCC 46.
10. Ibid.
11. SalemAdvocatesBarAssociationv. Union of India, AIR 2005 SC 3353 (2005) 6 SCC 344.
12. Bisham Dayal &-Sons v. State of Orissa, AIR 2001 SC 544.
Chapter 14 Suits in Particular Cases
213
to be given for the new cause of action having arisen between the original plaint and
amended plaint." In computing the period of limitation for institution of a suit, the
period of notice has to be excluded." The plaint must also contain a statement that
the statutory notice has been delivered or left. Omission to make such a statement is
fatal and the plaint will be rejected in itsabsence. The provisions of this section are
not applicable automatically to statutory corporations, government companies, etc.
There may be independent provisions in the statutes incorporating them for
example, Delhi Municipal Corporation Act; Delhi Development Authority Act.
14.3 CONSENT BEFORE SUIT
According to S. 91, a suit in respect of a public nuisance may be instituted by the

Advocate-General, or by rwo or more persons after obtaining the leave of the court.
A suit in respect of public charities may be instituted by the Advocate-General, or by
two or more persons having an interest in the trusts for charity after obtaining the
leave of the court in accordance with S. 92 of the Code.
"Doctrine of Cypres"
The Court can alter the original purposes of an express or constructive trust- created
for public purposes of a charitable or religious nature and allow its property or
income to be applied cy-pres, if so required in view of circumstances specified in
Section 92 (3) CPC. Cy-pres means that where a fund, given to the charity, is not
fully untilized for the particular purpose specified by the donor, and the donor had a
general charitable intention the surplus may be applied to similar, allied or
supplementary purposes. The court should be satisfied before applying the doctrine
that the original object cannot be carried out in the manner and form intended by
the donor. "The 'doctrine of cy pres' would only apply where a charitable bequest
falls or is incapable of being fulfilled in accordance with the spirit or when directions
of the founder cannot be carried out for the purpose and the spirit for which the
T6
trust was created."
According to Ss. 86, 87, 87A, 87B, a person who proposes to sue the ruler of a
foreign state or an ambassador or envoy of a foreign state, should before instituting
the suit obtain the consent of the Central Government, certified by the signature of
a secretary to the Government of India except where he is a tenant of immovable
property which he holds from such ruler, ambassador or envoy, and the suit is
brought by him as such tenant. The consent of the Central Government must be
obtained before institution of the suit. The consent obtained after the institution of
the suit is not sufficient." The provisions of S. 86(1) are not impliedly superseded
3 Ibid.
14. Limitation Act, 1963; Mohd Quaranuddin v. Stateof Andhra Pradesh, (1994) 5 SCC 118.
.Bihari Chaudharyv.Stateof Bihar, AIR1984 SC 11
l6. ThirumurugaKirupananda Variyar v. State Of Tamil Nadu, AIR 2002 Mad 42.
17. Mirza Ali Akbar v. UAR, AIR 1966 SC 230.
by provisions of Carriage by Air Act."The ruler of a foreign state may be sued in

the name of his state.
14.4 TITLE OF THE SUIT

Suits by or against the government are to be instituted by or against the Union of
India or the state as provided under S. 79; O. XXVIl, R. 3. Section 79 is a
procedural section and substantial compliance with the requirements thereof is
sufficient.9
14.5 PARTIES
In suits concerning property vested in a trustee, executor or administrator, where the
contention is between the beneficiaries and a third person, the trustee, executor or
administrator shall represent beneficiaries, and it shall not ordinarily be necessary to
make them parties to the suit. The provision under S. 79 of the Code provides that
in suits by and against the Government, the authority to be impleaded as the
plaintiff or the defendant would be the Union of India or the Central Government
or the State or the State Government." However the court may, if it thinks fit,
order them or any of them to be made parties. Beneficiaries should always be made
parties when the executors are wholly uninterested in the case or where they have an
interest adverse to that of the beneficiaries. Where there are several trustees,
executors or administrators, they shall all be made parties to a suit against one or
more of them or against a third person, but executors who have not proved their
testator's Will, need not be made parties, nor trustees, executors and administrators
outside India in accordance with O. XXXI, Rr. 1-2.
All persons having an interest either in the mortgage-security or in the right of

redemption should be joined as parties to any suit relating to the mortgage. The
purpose is to avoid multiplicity of suits.
The rule is merely procedural and does not create any substantive right. In a suit
under O. XXXIV, the plaintiff must proceed against the mortgaged property."
However, a puisne mortgager may sue for foreclosure or for sale without making the
prior morgager a party to the suit; and a prior mortgagee need not be joined in a
suit to redeem subsequent mortgage, as has been stated in O. XXXIV, R. 1.
Though not mandatory, the puisne mortgage should implead prior mortgagee in
order to work out the rights of the parties for a full and saisfactory adjudication."
Suit for the declaration of certain rights over the land belonging to State cannot be
granted without impleading it."
18. MansoorMumtaz v. Saudi Arabian Airlines Corpn., AIR 2002 Del 103.
19. Sri Laxmi P'aperDepot v. SDM, Bangaun,AIR 1998 Cal 195.
20. Collector v. Bagathi Krishna Rao, (2010) 6 SCC 427 (429).
21. Union Bank of Tndia v. Manku Narayana, (1987)2 SCC 335.
22. Kerela Financial Corporation v.SymdicateBank, AIR 1999 Ker 213 (FB).
23. Jagu v. Suraj Mal, 2010 (3) ARČ 877 (SC): (2010) 13 SCC 769 (770): AIR 2010 SC 3490 (3491).
SuitsinParticulaC
r ases h
Chapter 14
215
14.6 CONTENTS OF PLAINT
Section 80 of the Code states that where notice is required to be given to the Union
of India or a state or to a public officer, the plaint should contain a statement that
the notice has been served.
In every suit of interpleader, the plaint should contain certain statements which
you will find below,.2*4"
14.7 SIGNING AND VERIFICATION OF PLEADING

Acording to O. XVII, R. 1, in any suit by or against the Union of India or a state,
the plaint or written statement shoukd be signed and verified by such persons as may
be appointed by the government, and who is acquainted with the facts of the case.
In suits by or against a corporation, the pleadings may be signed and verified on

behalf of the corporation by the secretary or any director or other principal officer of
the corporation who is able to depose to the facts of the case in accordance with
O. XXIX, R. 1. A company may also authorise a person to sign a plaint on its behalt.
The rule confers a limited power to sign and verify. The company can also ratify the
act of signing and verifying of the pleadings by its officer.
14.8 SERVICE OF SUMMONS, APPEARANCE, ETC.

As to suits against firms,seebelow Firms.27 eToa 139A9.119TIEE
14.9 PROCEDURE
In suits concerning the family, special provisions apply in accordance with

O. XXXIIA.
The ordinary judicial procedure is not ideally suited to the sensitive area of
personal relationships. Such matters require a special approach because they have an
emotional angle or dimension which is otherwise absent. The ultimate object to be
achieved or aspired for is to preserve the integrity of the family.
Such matters may be heard in camera if a party so desires. It is the duty of the
court to make efforts for settlement. The court may also take help of welfare experts.
It is also the dury of the court to make inquiry into facts alleged by the plaintiff as
well as the defendant.
Suits or proceedings relating to Wills, intestacy and succession filed by a third

party is governed by the ordinary procedure.
24. See below 'Interpleader'.

As tosuits by oragainstfirms,seebelow, uits by oragainstFirms.
26. As to thissee O. XXVIl, R. 4 (Union of India or State); O. XXVIIA (Notice to Attorney General or
Advocate-General); s. 81; O. XX\VIl, R. 8 (Public Officers); s. 85 (Foreign States and Rulers);
0. XXVIII, Rr. 1-3 (Military Men); O. XXIX, Rr. 2-3 (Corporations).
27. See'Suits by or against Firms.
14.10 DECREES
As to decree to be passed in suits on mortgage, O. XXXIV may be referred to.
14.11 EXECUTION OF DECREES

Section 82 states that where a decree is against the Union of India or a state or
against a public officer in respect of an act done by him in his official capacity,
execution should not be issued, unless it remains unsatisfied for the period of three
months.
According to S. 86, no ruler, high commissioner, ambassador or envoy of a foreign

state can be arrested under the Code, nor can any decree against him be executed
against his property, without the consent of the Government of India.
14.12 OTHER SPECIAL PROVISIONS

Having noted the difference in procedure in the cases mentioned above, we proceed
to note the special procedure prescribed by the Code in interpleader suits, suits by or
against minors and lunatics, suits by indigent persons, suits by or against firms, suits
involving questions of interpretation of constitution or validity of statutory
instrument and summary suits.
14.13 INTERPLEADER SUITS [SECTION 88, ORDER XXXV]

An interpleader suit is one in which the real dispute is not between the plaintiff
and the defendant, but between the defendants who interplead against each other.
In an interpleader suit, the plaintiff is not really interested in the subject-matter of
the suit. In an interpleader suit, there must be some debt or sum of money or
other property in dispute between the defendants only. The primary object of an
interpleader suit is to have the claims of rival defendants adjudicated. The plaintiff
in an interpleader suit must be in a real position of impartiality.
A plaint in an interpleader suit can be amended by inclusion of new properties

and joinder of new parties.
IFT hold property in which I claim no interest, and it is claimed from me by two
or more persons adversely to one another, I institute a suit against the claimants for
obtaining a decision as to the person to whom the property should be delivered.
However, I cannot bring an interpleader suit, ifl hold the property in dispute as an
agent or as a tenant of one of the claimants.
In the plaint, I should state, in addition to the other statements necessary for plaints,
that I claim no interest in the property other than for charges or costs, that there is no
collusion berween me and any of the defendants, and I should specify the claims made
28. Mulla The Codeof Civil Procedure, Sixteenth Edn., 2002, Vol. 1.
217
by the defendants severally. I should also bring the property, if it is movable, in court.
At the hearing of the suit I should apply to the court for an order that I be discharged
from the suit and that my costs be provided for. If there is no charge of collusion made
against me by any of the defendants in his written statement, the court will grant my
application, and the suit will then be proceeded with as betrween the defendants. The
suit is called an interpleader suit, because the defendants are compelled in the suit to
interplead with one another. Where any of the defendants in an interpleader suit is
actually suing the plaintiff in respect of the subject matter of such suit, the court in
which the suit against the plaintiff is pending, on being informed by the court in
which the interpleader suit is pending, shall stay the proceedings in that suit as against
him in accordance with O. XXXV, R. 3.
14.14 SUITS BY OR AGAINST MINOR AND LUNATIC [ORDER XXXI]

The Code, under O. XXXII has made provisions for the institution of suit by or
against minors and persons of unsound mind with the object of protecting and
safeguarding the interests of such persons.
For the purpose of the Code, 'minor means a person who has not attained his
majority within the meaning of Indian Majority Act, 1875. E>xcept for the
requirement of furnishing security, the provisions of the Code relating to minors
also apply to persons adjudged to be of unsound mind. A person being major
according to personal law but minor according to Indian Majority Act cannot sue
without next friend.
Every suit by a minor should be instituted in his name by a next friend. The next
friend should be a person who is of sound mind, who has attained majority, who is
not a defendant in the suit, and whose interest is not adverse to that of the minor.
The title to the suit in such a case is AB, a minor, by CD, his next friend, v. XY.
Where the defendant is a minor, the court should appoint a guardian for the suit
guardian ad litem). However, no person may be appointed as guardian for the suit
without his consent in writing. The guardian ad litem should be person of sound
mind, who has attained majority, who is not a plaintiff in the suit, and whose
interest is not adverse to that of the minor. 'A suit filed by a plaintiff who is of
unsound mind through next friend, the court is not required to pass any order of
appointment of next friend of guardian. Whereas in case, defendant is of unsound
mind or minor, court is required to pass an order appointing guardian." The title
of the suit in such a case is XY v. AB, a minor, by CD, his guardian ad litem.
Where a minor has a guardian appointed or declared by the court, no person other
than such guardian should act as the next friend or be appointed his guardian for the
suit, unless the court considers that it is for the minor's welfare to do so and that too
only after serving him the notice of such appointment.
29. Jarnail Singh . NaramjanKaur, 2011 (2) R.C.R.(Civil) 215.

218
The provisions of Rr. 2 and 3 of O. XXXI are mandatory."" A decree passed
against a minor in a suit in which he is not represented by a guardian ad litem is a
nullity, and it cannot be enforced against him. It is therefore, in the interest of the
plaintitt to apply to the court for the appointment of a guardian ad litem soon after
the plaint is admitted, and to see that a guardian ad litem is appointed. An order for
the appointment of a guardian ad litem may also be obtained upon application in
the name and on behalf of the minor.
No next friend or guardian for the suit should, without the leave of the court
expressly recorded in the proceedings, enter into any compromise, on behalf of a
minor with reference to the suit. Any compromise entered into without such leave is
voidable at the option of the minor. This rule is imperative, and it applies even if the
next friend or guardian be the father of the minor, and the manager of a joint Hindu
family of which the minor is a member."
A minor plaintiff or defendant at attaining majority must elect whether he will
proceed with the suit and where he elects to proceed, he must apply for an order
discharging his next friend and for leave to proceed in his own name. And thereafter
the title of the suit shall also be corrected. However, before the passing of any such
order, notice must also be issued to the next friend. If he does not move in the
matter, he shall be decmed to have adopted the proceedings and will be bound by
the result of the litigation.
The above rules apply also to persons of unsound mind.
Order 32-A "Suits concerning family matters"

Order 32-A, CPC contains special provisions in respect of suits relating to matters
concerning the family. A duty has been caste upon the courts to make efforts for
settlement in suits relating to "matters concerning the family." Rule 3 mandates that
the Court shall make an endeavour in the first instance, where it is possible to do so
consistent with the nature and circumstances of the case, to assist the parties in
arriving at a settlement in respect of the subject matter of the suit. These provisions
apply to all proceedings relating to family disputes like guardianship, maintenance,
will, succession, adoption, etc. Rule 2 specifically provides that the proceedings
under this provision should be held in camera, so as to protect the personal
relationships from being affected.
14.15 SUITS BY INDIGENT PERSONS [ORDER XXXII]

The provisions of the Code relatingg to such persons are intended to enable persons
who are indigent to institute and prosecute suits without payment of any court fee
other than fees payable for service process. The word person' mentioned in
30. Ghulam Rasoolv. Ghulam HassanReshi, AIR 2003 J&cK6.

31. GaneshaRow v. Tujaram (1913) 40 IA 1; Code of Civil Procedure, 1908, 0. XXXII.
32. Rajender Kumar v. Sanatan Dharam Mahabir Dal, (1999) ILR I P&H 362.
Chapter 14 Suits in Particular Cases 219
0. XXXIII includes not only a natural person but other juridical person also. The
petitioners, a body corporate can maintain an application under O. XXXIII, R. 1
and an application under O. XLIV, R. 1.° If the indigent succeeds in the suit, the
government has a first charge on the subject-matter of the suit for the amount of the
court fee which would have been paid by him if he had not been permitted to sue as
an indigent. If he fails in the suit or is dispaupered, or if the suit is dismissed for
default (i.e., non-appearance at the hearing), the court should order such court fee to
be paid by him.
A person is 'an indigent person':
)when he is not possessedof sufficient means to enable him to pay the fee
prescribed by law for the plaint in the suit proposed to be instituted by
him, or
(i) where no such fee is prescribed, when he is not entitled to property worth
rupees one thousand, other than property exempt from attachment in
execution of a decree and the subject-matter of the suit.
The mere possession of immovable properties without any proof of derivation of
income from it is not "sufficient means" to pay the court fee. The court has to enter
into a finding regarding the capacity to raise money to pay.
The words is not possessed of contemplates not possession of property but

sufficient means, ie., capacity to raise money to pay the requisite court fee. For
determining the issue concerning "indigent person", the property which is exempr
from attachment and the subject of the suit is not to be taken into consideration."
A person is not entitled to institute a suit as an indigent as of right. He can sue as

indigent only if he has obtained permission of the court to do so. He has, therefore,
to apply for permission to sue as an indigent. The application should contain the
particulars required in regard to plaints in suits; a schedule ot property belonging to
the applicant, with estimated value thereof, should be annexed thereto; and it should
be signed and verified as if it was a plaint. The application should be presented to
the court by the applicant in person, unless he is exempted from appearing in court,
in which case it may be presented by an authorised agent who can answer all
material questions relating to the application. The court may fix a
day for receiving evidence of applicant's indigency. Rule 7 lays down procedure for
hearing. If after considering the material on record, the court comes to the
conclusion that the plaintiff be permitted to sue as a pauper, the court then must
pass an order to register the plaint and number it and proceed further in the
ordinary manner excepr payment of court fee (O. XXXIII, R. 8). It is the duty of the
33. BhopalWholesale Consumer Co-operativeStore Ltd. v. Madan Lal Gandhi, 2009 (2) MP LJ 219 (221-22)
OB); Union Bank of India v. K.I. Constructions, AIR 2001 SC 2277; Daman Singh v. Stateof Punjab,
AIR 1985 SC 973, relied on.
34. Union of lndia v. Khader International Construction, JT 2001 (5) SC 218.
RajammaJosephu. Binu Prasad,2010 (1) KILT 572 (576-77) (DB).
1u bru
0 Manjuata v.Sidhkaran,AIR 2005 Raj 32 (DB).
37. Stase of Haryana v. Baldev Raj, (2008) 162 PLR 204.
court to insist upon report from the government regarding the financial status of the
applicant. Where the clear mandate of Rr. 6 to 8 were not followed, it would vitiate
the order granting leave to sue as pauper.
While considering the prayer for leave to sue as an indigent person, the court
should not keep the question of jurisdiction and cause of action undecided. The
court should first decide the question of jurisdiction and then proceed with the
matter of grant ofleave.
It shall reject the application:
(a) where it is not properly framed and presented; or
(6) where the applicant is not an indigent person; or
(c)where he has, within two months next before the presentation of the
application, disposed of any property fraudulently or in order to be able to
apply for permission to sue as an indigent person; or
d)where hisallegationsdo not showacauseof acion; or
()where he has entered into any agreement with reference to the subject-
matter of the proposed suit under which any other person has obtained an
interest in such subject-matter.
If neither the application nor the examination of the applicant discloses any ground
for rejecting the application, the court should, before granting the application, give
an opportunity to the opposite party to show that the applicant is not entitled to sue
as an indigent. For this purpose, the court fixes a day for holding an inquiry, and
notice of the day so fixed is given to the opposite party and the government pleader.
If the inquiry discloses any of the five grounds mentioned above for rejecting the
application the court should refuse to allow that applicant to sue as an indigent,
otherwise the court may grant the application.
Where the court refuses the application, the plaintiff must be directed to pay the
court fee and on payment of court fee, the suit is to be registered and the further
proceedings in the matter shall follow in the ordinary manner.
The order of refusal is a bar to any subsequent application of the like nature by
him in respect of the same right to sue, but the applicant may institute a suit in the
ordinary manner, provided he first pays the costs incurred by the opposite party, and
by the government in opposing the application. It is open to the defendant and the
government pleader to apply to the court at any time during the pendency of the
suit for an order that the plaintiff is not an indigent person and the court may order
that the plaintiff is not an indigent person:
(a) if he is guilty of vexatious or improper conduct in the course of the suit;

(6) if it appears that his means are such that he ought not to continue to sue as
indigent person; or
38. D Hemchandra Sagarv. D Prishviraj, AIR 2004 Kant 33.

221
()if he hasentered into anyagreementwithreferenceto thesubject-matter
of the suit, under which any other person has obtained an interest in such
subject-matter.
An application to sue as an indigent person can be filed subsequent to the filing of
the suit. An omission to sign and verify the application does not entail rejection of
the application as it can be rectified.
Where the suit of the plaintif, in which permission to sue as an 'indigent person'
has been granted, is withdrawn or dismissed or abates by reason of the death of the
plaintiff, the court must order the state government to recover the court fee payable,
from the plaintiff or the estate of the deceased plaintiff.
14.15.1 Appeal as Indigent Person

A person entitled to prefer an appeal (first or second), who is unable to pay the fee
for the memorandum of appeal, may present with the memorandum, an application
for leave to appeal as an indigent person and may be allowed to appeal as indigent
person, subject to the provisions relating to suits by such persons.
14.16 SUITS BY OR AGAINST FIRMS [ORDER XXx]

The provisions of the Code relating to suits by or against firms are contained in
O. XXX of the Code.
14.16.1 When Partners May Sue or be Sued in Firm Name

Any two or more persons claiming or being liable as partners and carrying on
business in India may sue or be sued in the name of the firm of which such persons
were partners at the time of the accruing of the cause of action. In a suit by or
against a firm, the pleadings may be signed and verified by any one of such persons
in accordance with O. XXX, R. 1. Order XXX mandates that whenever suits are
filed by or against a firm, it shall be made a party." However, it does not prevent all
the members of a firm from suing jointly in their individual names.
14.16.2 Sut by a Firm

Where a suit is instituted by partners in the name of their firm, the plaintitt firm
should, if so required by the defendant, disclose the names of all persons constitu-
ting the firm. If the names are not disclosed, the suit will be stayed. If they are dis-
closed, the suit will be proceeded in the same manner, and the same consequences in
all respects will follow, as if the persons whose names are so disclosed had been
named as plaintiffs in the suit. All proceedings should continue in the firm name,
but the name of the partners disclosed in the manner specified above shall be entered
in the decree. This is in accordance with O. XXX, R. 2.
39. Sivarajan Ku. State of Kerala, AIR 1998 Ker 98.

40. Sreevalli v. Chinni Seetharamaiah, AlR 2005 AP 521.
222
14.16.3 Suit Against a Firm
According to O. XXX, Rr. 3, 5 where a suit is instituted against a firm, the
summons should be served either upon one or more of the partners or upon the
person who is then the manager of the firm. However, if the firm was dissolved to
the knowledge of the plaintiff before suit, the summons should be served upon every
person within India whom it is sought to make liable as partner. Every person served
as above should be informed by notice in writing in what character he is served, i.e.,
whether he is served as a partner or as manager or in both characters. In default of
such notice, the persons served will be deemed to be served as a partner.
If the plaintiff was not aware of the dissolution when he filed the suit, the decree
binds all the partners in the firm irrespective of whether they have been served
individually.
In a suit instituted against a firm in its name, if any of its partner dies, whether
before institution or during the pendency of the suit, it is not necessary to substitute
the legal representatives of the deceased partner (O. XXX, R. 4). It will be so in
appeals as well.
However, in a suit having been tiled in the name of the firm and all the partners
die during the pendency of the suit, the legal representatives of the deceased partners
must apply under O. I, R. 10 of the Code to be brought on record as plaintiffs.
As regards appearance, it is to be noted that a firm cannot appear as a firm. The

partnersshould, therefore, appear individually in their own names, but all
subsequent proceedings will continue in the firm name. A person served as manager
need not appear unless he is a partner in the firm sued. Where a person served as a
partner denies that he is a partner, he may enter appearance under protest. Where an
appearance is entered under protest, its etfect is to nullity the service altogether as
regards the defendant firm. In such a case, the plaintiff may have the summons
served upon one who is admittedly a partner or manager under R. 3, and after
obtaining a decree against the firm, apply for leave to execute it against the person
denying the partnership under O. XXI, R. 50. However, the plaintiff is not bound
to adopt this course. He may ask the court to hold an inquiry, before proceeding
with the hearing of the suit, as to whether the party who appeared under protest is a
partner. Appearance without protest shall be taken as an admision of partnership
and his appearance shall be deemed to be on behalf of the firm. It shall continue to
be an appearance of the firm, unless the court permits him to withdraw.
The above rules apply to:
)suit between a firm on one hand and one or more of its partners on the
other hand;
(i) suits berween firms having one or more partners in common;
(i) suits against a person who carries on business in a name or style other than
his own, as where AB carries on business in the name of AB 6- Co, or XY
223
Co, where the suit is brought against such person in the firm name as in
Rr. 9-10.
In case () and (i) no execution can be issued except by leave of the court under R. 9
of O. XXX.
14.17 SUIT INVOLVING QUESTION OF INTERPRETATION OF

CONSTITUTION OR VALIDITY OF STATUTORY INSTRUMENT
Where a suit involves a substantial question of law as to interpretation of Consti-
tution or as to validity of any statutory instrument, the court shall not decide the
question without issuing notice to the Attorney General or Advocate General or
Government Pleader, as the case may be. The court may also add government as a
party if there is an application for that purpose.
14.18 SUMMARY SUITS
The provisions of O. XXXVII of the Code, apply to the following classes of suits:
6) suits based upon bills of exchange, hundies and promissory notes;

i) suits in which the plaintiff seeks to recover a debt or liquidated amount
arising on:
(a) a written contract;
(b) an enactment, where the sum sought to be recovered is a fixed
amount or debt, other than a penalty;
(c) a guarantee.
In certain specific kinds of suits, O. XXXVIl provides for a summary procedure

which differs materially from ordinary procedure under which the right to defend
inheres in every defendant. The object underlying summary procedure is to prevent
unreasonable obstruction by a defendant who has no defence.
Suits for recovery of amounts due under cash-credit account and bill discounting
purchase account, by a banker;"" suits based on credit card;"" suits based on
invoices/bills;" suits for recovery of inter-corporate loans based on receipt and
agreement acknowledging inter-corporate loan secured by collateral securities;" suits
for recovery of amount based on balance confirmation letters accepted
unconditionally," are maintainable as summary suits.
In summary procedure laid down under O. XXXVII, the plaintiff must serve
Summons of the suit to the defendant and the defendant may within 10 days of the
Service of such summons, enter his appearance in the court along with address for
4 Punjab d Sind Bank v. Ram PrakashJagdishChander, (1990) 40 DLT 497.

CentralBank of India, Manipuru. VasantKimi, AIR 1999 Bom 409.
5. KLG S el L. Ffujitsu 1ClIM Lid, AIR 2001 Del 357: 92 (2001) DLT 88.
44. Motorola India Lsd v. Kiklu I Malani, AlR 2003 Bom 92.
4). SunnSandHotel Ltd v. VV Kumar HUF , AIR 2003 Bom 168.
service of notices on him and notice of entering into appearance must also be given
to the plaintiff.
Where the defendant enters appearance, the plaintiff must serve on the
defendant, a summons for judgment in the prescribed form and the defendant
may within 10 days from the service of such summons for judgment, apply for
leave to defend such suit, as the defendant does not have a right to defend the suit
unless he shows, by filing affidavit or otherwise, that he has a defence to the claim
of the plaintiff. At the stage of deciding this, the court has very wide powers. The
question as to whether leave to defend a suit can be granted or not is within the
discretionary powers of the high court and where such discretion has not been
erroneously or with any irregularity exercised, no interference of the apex court is
warranted." It can grant leave to defend unconditionally or impose conditions
before granting leave to defend or pass judgment as prayed for or otherwise by
refusing leave to defend. The leave to defend shall be given unconditionally if the
defendantt shows a prima-facie case or raises a triable issue."" When the defence
raised appears to be moonshine and show, unconditional leave to defend cannot
be granted. What is required to be examined for grant of leave is whether the
defence taken in the application under R. 3 of O. XXXVII of the Code makes out
a case, which if established, would be plausible defence in a regular suit."
Conditional leave shall be granted if the court doubts the bonafides of the
defendant or thinks that the defence is put only to gain time. The court can refuse
leave if it is satisfied that facts disclosed by the defendant do not indicate a
substantial defence or that the defence is frivolous or vexatious. The second
proviso to O. XXXVII R. 3(5) of the code makes it very clear that leave to defend
a suit shall not be granted unless the amount as admitted to be due by the
defendant is deposited in court. The question as to whether leave to defend a suit
can be granted or not is within the discretionary powers of the high court and such
discretion has not been exercised erroneously or with any irregularity which
warrants interference by the Supreme Court." The conditions liable to be
imposed may vary in their nature and/or quantum. The court may require the
defendant to deposit money before granting leave. The court may also order
expeditious hearing of the suit. The principles for determining the defendant's
application for leave to defend the suit have been laid down in various judicial
pronouncements. An appeal lies against an order refusing leave to defend.
Interlocutory order granting conditional leave to defend or refusing leave to
defend the suit can be challenged by aggrieved party in an appeal preferred against
46. SouthermSales d Servicesu.SauermilchDesign dr Handles GMBH, 2009 (1) Kar LJ 276: AIR 2009 SC 320.
47. DattEnterprises Ld u. VKDua, AIR 2006| Del 16.
48. V.K Enterprises v. Shiva Stels, AIR 2010 SC 2885; seealso Maluva Strips Pvs. Ld. u Jyori Lid, (2009) 2
SCC 426.
49. SouthemSales dServicesu.SavermilchDesign d Handles GMBH. (2008) 14 SCC 457 (462).
50. Santosh Kumar v. Mool Singh, AIR 1958 SC 321; MechalecEngineers v. Basic Equipment Corpn., AIR
1988 SC 577; Raj Duggal v. Ramesh Kumar, AIR 1990 SC 2218: 1991 Supp (1) SCC 191.
25
the final decree." An order granting conditional leave to defend the suit can be
challenged in an appeal against the decree.
Where the defendant has not entered appearance having been served with the
summons of the suit, within the prescribed period, or has not applied for leave to
defend within the prescribed period having been served with the summons for
judgment or where his application for leave to defend has been refused, the plaintiff
is entitled to judgment forthwith. However, the court has the power to condone the
delay in entering into appearance or in applying for leave to defend the suit, in
special circumstances cause being shown by the defendant. What would constitute
special circumstances would depend upon the facts of each case. The defendant shall
have to show not only special circumstances which prevented him from appearing or
applying for leave to defend, but also the facts, which would entitle him leave to
defend. "Setting aside of ex-parte decree under Order 37 Rule 4 of the Code
cannot be allowed in routine and special circumstances are required to be
established. However, the expression special circumstances has to be construed
having regard to the individual fact situations. The Court has to balance the equities
and while safeguarding the interest of the plaintiff. Appropriate conditions can be
laid down if the defendant makes out a debatable case which may prime facie show
injustice in the ex-parte decree was not set aside.
14.19 BAR OF CERTAIN SUITS

We have by this time reviewed all the sections and rules contained in the Code
which come within the scope of these chapters. Now, we will discuss about suits
which are barred for some reason or another under the Code.
14.19.1 A Suit may be Barred as Res Judicata [Section 11]

Suppose that the suit for specific performance is heard and finally decided, can one
file a fresh suit in respect of the same subject matter again? The answer is clearly
negative. Section 11 deals with res judicata, and bars the trial of any suit or an issue
in any suit in certain circumstances and if certain conditions are fulfilled. The
doctrine of res judicata in substance means that an issue or a point decided and
having attained finality should not be allowed to be re-opened and re-agitated rwice
over. In Satyadhyan Ghosal v. Deorjin Debi," the doctrine of res judicata has been
explained in simplest possible terms in the following words:
"The principle of res judicata is based on the need of giving a finality of

judicial decisions. What it says is that once a res is judicata, it shall not be
S. Emkay Exports v. Madhusudan Shrikrishna, 2008 Bom CR 522.

$2. Wada ArunAsbestos P. Ltd. v. Gujrat Water Supply & SewerageBoard, AIR 2009 SC 1027 (1030):
(2009) 2 SCC 452.
53. Rajini Kumar u. Suresh Kumar Malhotra, AIR 2003 SC 1322: (2003) 5 SCC 315.
4. MaheshKumar Joshi v. Madan Singh Negi, AIR 2015 (SC) 974.
5. EscortsFarms Ltd v. Commr Kumaon Division, Nainital, AIR 2004 SC 2186: (2004) 4 SCC 281.
6. Saryadhyan Ghosal v. Deorjin Debi, AIR 1960 SC 941.
Mula The Key to Indian Practice
226 Chapter 14
adjudged again. Primarily it applies as between past litigation and future

litigation. When a matter whether on a question of tact or an a question of
law has been decided between two parties in one suit or proceeding and the
decision is final, either because no appeal was taken to a higher court or
because the appeal was dismissed, or no appeal lies, neither party will be
allowed in a future suit or proceeding between the same parties to canvass the
matter again.
The objectives behind this rule are threefold. It is desirable that no man should be
vexed more than once in respect of the same litigation. Ilt is equally desirable that
there is an end to the litigation and a judicial decision must be accepted as correct.
The first is based on private interest and the remaining two take care of public
policy and larger interest of the society." With the aforesaid objectives in view, the
prohibition of res judicata has been enacted. The doctrine of res judicata is founded
on the principles of justice, equiry, and good conscience, and is a species of the
principle of estoppel."It createsa different kind of estoppel viz estoppel by accord.
"Doctrine of res judicata is not technical doctrine but a fundamental principle which
sustains rule of law in ensuring finality in litigation. The principles of res judicata are
of universal application as it is based on rwo age old principles, namely, 'interest
reipublicae ut sit finis litium' which means that it is in the interest of the State that
there should be an end to litigation. No one ought to be vexed rwice in litigation if
it appears to the Court that it is for one and the same cause. This principle of
finalitry of litigation is based on high principle of public policy."
It operates against both the parties to the suit, and not against one alone. The
doctrine applies to all judicial proceedings and equally applies to a quasi-judicial
proceeding before tribunals. The principle of res judicata applies whether the point
in the earlier decision is one of fact or of law or of mixed law and fact, and must be
interpreted and applied liberally. The principle of res judicata operates on the court
as it prohibits the court from trying the issue." Res judicata applies also as berween
two stages in the same litigation to the extent that a court, whether trial court or a
higher court, having at an earlier stage decided the matter in one way will not allow
the parties to re-agitate the matter again at a subsequent stage of the same
proceeding.Berween the parties even a wrong decision can operate as res
judicata." Where the previous application had become intrucruous and was not
57. Ashok Kumar v., National Insurance Co., AIR 1998 SC 2046; State of Maharashtra u. Prabhakar Bhikaji
Ingle, AlR 1996 SC 3069: (1996) 3 SCC 463.
58. Rajender Kumar u. Kalyan, AIR 2000 sC 3335; Lal Chand v. Radha Kishan, AIR 1977 SC 789: (1977)
2 SCC 88.
59. lshwar Dutt n. Land Acquisiton Colector, AIR 2005 SC 3165: (2005) 7 SCC 190.
60. Bhanu Kumar Jain vu.Archana Kumar, AIR 2005 SC 626.
61. M.Nagabhushana v. State of Karnataka, 2011 (3) SCC 408
62. SulochanaAmma v. Narayanan Nair, AIR 1994 SC 152: (1994) 2 SCC 14.
63. Pondichery Village and Khadi Inds Board v. P Kulothangan, AIR 2003 SC 4701: (2004) 1 SCC 68.
64. Utar PradeshState Road Transport Corpn v. State of Uttar Pradesh, AIR 2005 SC 446: (2005) 1 SCC
444.
65. A.R Antulay v. R.S. Nayak, AIR 1988 SC 1531:(1988) 2 SCC 602.
227
decided on merits, the principle of res judicata would not operate. The principle of
resjudicata is alien to criminal law. However in certain contingencies "issue estoppel
would be available"." The findings arrived at by a court without jurisdiction cannot
operate as res judicata.
A question whether a petition is barred by res judicata is not a pure question of

law." In order to decide the question whether a subsequent proceeding is barred by
res judicata it is necessary to examine the question with reference to the (i) forum or
the competence of the Court, (ii) parties and their representatives, (1i) matters in
issue, (iv) matters which ought to have been made ground for defence or attack in
the former suit and (v) the final decision."" Res judicata is a mixed question of fact
and law and cannot be disposed of as a preliminary issue under O. XIV, R. 2(2)(6)
of the Code. Res judicata relates to the plaintiff's duty to put forth all the grounds of
attack in support of his claim, whereas O. II, R. 2 of the Code requires the plaintiff
to claim all reliefs flowing from the same cause of action as a single suit. The two
pleas are different and one will not include the other." The bar of res judicata is
mandatory, and cannot be avoided by a party except by invoking the provisions of
the Indian Evidence Act, 1872 on the grounds that the judgment was obtained by
fraud or collusion or was without jurisdiction.
The doctrine of res judicata is a rule of procedure, and not substantive law. It does
not affect the jurisdiction of the court," and it is open to the party to waive the plea
of res judicata. Res judicata has to be specifically pleaded and proved, and if the party
fails to raise such plea it will be deemed to have been waived." The foundation of
the plea of res judicata must be laid in pleadings. If this was not done, no party
would be permitted to raise it for the first time at the stage of appeal. The plea
cannot be raised for the first time in appeal before the Supreme Court."
14.19.1.1 Conditions
The sphere of res judicata is not exhaustive and it is ever growing. Certain
conditions are required to be fulfilled for the application of the doctrine. The condi-
tions are:
) there must be rwo suitsbetween thesameparties or theirrepresentatives;

(i) they must be litigating under the same title;
66. Noharlal Verma v. Dist. Coop. Central Bank Ltd., Jagalpur, AIR 2009 SC 664 (666). srsooy
67. Sardarji M. Waghela v. UO1, 2009 (2) Guj LR 1399 (DB) : 2009 CrLJ 3238.
G8. Municipal Committee v. Parshotam Das, (1996) 8 SCC 324.
9. RameshCh. Sankla v. VikramCenmens,(2008) 14 SCC 58 (76).
. JaswanStinghv.Custodian(,1985)3SCC648.
. MadhukarDShendev. TarabaiAba Shedage(,2002)2 SCC85.
72. Alka Gupta v. Narendra Kr. Gupta, AIR 2011 SC 09 (13) : (2010) 10 SCC 141
5. IsabellaJohnson v. MA Susai through LRs, AIR 1991 SC 993 : (1991) 1 SCC 494.
4 Nazim Ali v. Anjuman Islamia, (1999) 3 SCC91; Wali Mohd v. RahmatBee, (1999) 3 SCC 145.
CLd u. CommrofCentraE l xcise,New Delbi, AlR 2005 SC 1370.
76. Madhvi Amma Bhawani Amma v. Kunjikuntry Pillai Meenakshi Pillai, AlR 2000 SC 2301.
228
(i) the matter directly and substantially in issue in both the suits must be
similar. In other words, the matters directly and substantially in issue in
the subsequent suit must also be directly and substantially in issue in the
former suit;
(iv) one of such suits must have been heard and finally decided (it is called a
former suit). The principle of res judicata will not apply when the entire
matter was still in appeal and had not attained finality and was still in
dispute;"
(v)the court which decided the former suit must be competent to grant
relief claimed in the subsequent suit. The principle of res judicata will
not apply where order was passed without jurisdiction."
Briefly speaking, some of the conditions stated above are as follows:
(i) Boch the suits must be between the same parties or their representatives. In
other words, the parties to the subsequent suit must be deriving their titles
to the subject matter of the suit from the parties of the former suit. They
must be successors-in-interest of the parties to the former suit. Unless an
issue directly and substantially raised in the former case is heard and
decided by the competent court, the principle of res judicara will not be
attracted." Suppose the suit for specific performance has been decreed
against the defendant and such decree has become final. The defendant
dies thereafter. Such decree will be binding on his heirs also and if any of
them filed a suit in respect of the same subject matter, the bar of res
judicata will apply because the former suit was between the parties from
whom the title has been derived by the parties in the subsequent suit.
"Res Judicata between co-defendants

The general rule is that the res judicata applies between the plaintiff and defendant.
"But adjudication berween co-defendants will operate as res judicata if there is a
conflict of interest between the defendants concerned, it is necessary to decide the
conflict in order to give the relief which the plaintiff claims, the question berween
the defendants has been finally decided, and the co-defendants are necessary or
proper parties in the former suit." Where there is no conflict of interest between co-
defendants or when the conflict between co-defendants is not adjudicated on
merits the decision will not operate as res judicata berween them.
"Proforma Defendants"
Pro forma defendant is a person who has no conflict of interest with the plaintiff
and against whom no relief has been claimed. Whether such a formal party to an
77. HameedaBegum v. Champa Bai, 2009 (3) MPLJ 472(492) (DB).

78. Chandrabhai K. Bhoir v. Krishna A. Bhoir, AIR 2009 SC 1647: (2009) 2 SCC 315.
79. NSuresh Nathan v. Union of India, (2010) 5 SCC 692: AIR 2010 SC 2171 (2176).
80. ftikhar Ahmed and Ors. v. Syed Meharban Ali and Ors. AIR 1974 SC 749.
-
action against whom no relief is claimed is bound by or entitled to the benefit of the
rule of res judicata?
Section 11 of the Civil Procedure Code makes no distinction between a formal or

an informal party or between a party against whom a relief is claimed and a party
against whom no relief is claimed.
"A pro forma defendant is joined as a party in a suit because his presence is
necessary in order to enable the Court effectually and completely to adjudicate upon
the matters in controversy berween the parties. He does not enjoy any special rights
or privileges which are not available to others and is as much bound by the decision
of the Court as the other parties to the litigation. If therefore any such person had a
right to be heard or to control he proceedings he is bound by the doctrine of res
judicata even though he was joined merely as a formal party and "even though no
relief was sought or claimed against him.
The Full Bench of Punjab and Haryana High Court in Gita Ram Kalsi v. Prithvi
Singh and others," held that Section 11 Civil Procedure Code makes no distinction
berween a formal or an informal party or berween a party against whom a relief is
claimed and a party against whom no relief is claimed. A pro forma defendant is as
much bound by the rule of res judicata as a real defendant.
(i) They must be litigating under the same title. This condition can be
explained by the following illustration. Suppose a person files a suit
claiming certain properties as heir to the mabant of a math. The suit
fails. He files anor er suit claiming management and administration of
the same properties in his capacity as a manager of the math. Here, the
subsequent suit will not be barred because the parties were not litigating
under the same title in both the suits. The former suit was filed in the
capaciry of an heir, while subsequent suit was filed in the capacity of a
manager of the math. "The crucial test for determining whether the
parties are litigating under the same title as in the previous suit is of the
capacity in which they sued or were sued. The term "same title" has
nothing to do either with the cause of action or with the subject matter
of two suits. Where the right claimed in both the suits is the same, the
subsequent suit will be barred even though the right in the subsequent
suit is sought to be established on a ground different from one in the
former suit..84
ii) The 1 ers in issue mean the matters which are alleged by one party and
either denied or admitted by the other pary. There can be rwo ways in
which any matter can be in issue in the suit. It may be actually in issue or
constructively in issue. When any allegation or plea of defence is
81. Mt Munni Bibi v. Tirloki Nath, AIR 1931 PC114.

82. Kidar Nath Goenka v. Munshi Ram, AIR 1935 PC 139.
85. Gita Ram Kasi v. Prithvi Singh andothers, 1956 PLR 200.
84. Union of India v. Pramod Gupta, (2005) 12 SCC 1.
specifically raised, it can be said that such matter is actually in issue

because the parties have raised it. However, in certain cases, it may be
found that either party has failed to raise any ground of attack or defence
which ought to have been raised. In such cases the matters which might
and ought to have been made grounds of attack or defence in the former
suit shall be deemed to have been the matters directly and substantially in
issue in such suit. Suppose in a suit for specific performance, several
defences are open to A. Out of such defences, the plea regarding delay or
laches is not raised by A and such suit has been decreed in favour of the
plaintift, it is not permissible for A to raise such a plea in any subsequent
suit berween the same parties in order to avoid the liability under the
decree or in an attempt to set aside such decree. All the grounds of
defences which A could have availed to in resisting the suit for specific
performance ought to have been raised and As failure to do so results in a
disability in raising such plea again. This is called the rule of constructive
res judicata. It is a stautary provision. It is always desirable that the
litigation is brought to an end expeditiously as well as conclusively. It
should not be open to the parties to litigate on the same subject-matter
again and again even by raising pleas which were not raised earlier. In
Workmen v. Board of Trustees, Cochin Port Trust, the Supreme Court
explained the principle of constructive res judicata in the following words:
"If by any judgment or order any matter in issue has been directly
and explicitly decided, the decision operates as res judicata and bars
the trial of an identical issue in a subsequent proceeding berween the
same parties. The principle of res judicata also comes into play when
by the judgment and order a decision of a particular issue is implicit
in it, that is, it must be deemed to have been necessarily decided by
implication; then also the principle of res judicata on that issue is
directly applicable. When 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 in the eye of law, to avoid
multiplicity of litigation and to bring about finality in it is deemed to
have been constructively in issue and, therefore, is taken as decided."
In the same way, if one has prayed for a specific relief in the plaint and if
such relief is not expressly granted by the decree, it is deemed to have been
refused.
"MATTER cOLLATERALLY IN ISSUE"

It is mandatory for invoking the bar of res-judicata that the issue or matter in
dispute in the former suit is direcly and substantially in issue in the subsequent suit.
But the decision in the former suit on the issues not alleged by one party and denied
or admited by the other within the meaning of Explanation IIL, are incidental and
85. Workmen v. Board of Trustes, Cochin Port Trus, (1978) 3 SCC 119.
231
collateral to the lead issues and such decision will not operate as res judicata.
"Decisions on an issue operate as res judicata only it that issue was raised and
decided. Findings incidentally recorded do not operate as res judicata."»86
14.19.1.2 Representative Suits

The principle of res judicata is also applicable to a suit of a representative character
or what is now sometimes described as 'public interest litigation. As seen, there is
procedure prescribed under the Code which must be followed before a
representative suit can be properly conducted. However, once such procedure is
allowed, all persons interested in the subject-matter shall be deemed to claim under
the persons expressly on record and consequently the final decision reached in such
proceedings will operate as resjudicata.
14.19.1.3Courts of Limited Jurisdiction

You must have noticed that in order to attract the bar of res judicata, it is necessary
that the court which tries the former suit must be competent to grant the relief
claimed in the subsequent suit. However, by expln 8, this requirement has been
relaxed in cases where an issue has been heard and finally decided by a court of
limited jurisdiction. In such cases, it is sufficient if such court was competent to
decide the issue, and it is immaterial that such court was not competent to try
subsequent proceedings in which such issue was sought to be raised. For example,
the tribunals constituted under various statutes of Parliament are the courts of
limited jurisdiction. Their decision on an issue which they were competent to decide
is not open to question or challenge in the subsequent proceedings before another
court, and which the court of limited jurisdiction has no jurisdiction to decide. In
other words, the requirement that the court which decides the former suit must be
competent to grant the relief claimed in the subsequent suit will not apply when the
court of limited jurisdiction has decided upon an issue properly raised before it.
Explanation 8 constitutes an exception to the aforesaid requirement.
14.19.1.4 Applicability of Res Judicata to other Proceedings

It applies to the proceedings for execution of a decree in accordance with Expln. 7.
It has been held that the general principles underlying the doctrine of res judicata are
applicable to writ petitions under Arts. 32 and 226 of the Constitution. They are
also applicable to the adjudications made under Industrial Disputes Act, 1947.
The rule of res judicata also applies to arbitration proceedings, public interest
litigation and criminal proceedings," but does not apply to taxation proceedings,
consent decrees, and interlocutory orders. It is also held that S. 11 is not exhaustive
and any suit can be held to be barred by doctrine of res judicata even if all the
86. Madhvi Amma Bhawani Amma d Ors. u. Kunjikurty PillaiMeenakshi Pillai d Os., AIR 2000 SC 2301.
. Daryaov.StareofUtaPrradeshA,IR196lSC1457.
88. Bombay Gas Co v. Shridhar Bhau, AIR 1961 SC 1196:(1975) 4 SCC 690.
89. Dr. Rao VBJ Chelikani v. Govt. of A.P.,, 2010 (2) ALT 94 (125) (DB).
90. Fatma Bibi Ahmed Patel v. Stateof Gujaras, (2008) 6 SCC 789 (796) : AIR 2008 SC 2392.
conditions mentioned in S. 11 are not fulfilled, if it appears to the court that there is
an attempt to re-agitate an issue once settled and decided."
Res judicata, though, a branch of the law of estoppel, however, differs from
estoppel in certain aspects.
SINo. Res judicata Estoppel

(1) It results from a decision of the court. | It flows from an act of the pary.
(2) It ousts the jurisdiction of the court It is a rule ofevidencepreventinga

to try and re-open the matter already| Party from asserting contrary
decided. statement.
(3)It prohibits a man averring the same| It prevents a man from saying
thing twice in successive litigations. one thing at one time and the
opposite at another.
(4) It binds both the parties to a It binds only that parrywho made
litigation. the previous statement or showed
the previous conduct.
It is appropriate to discuss a related topic regarding stay of suit.
14.19.2 Stay of Suit

Suppose A has filed a suit for specific performance alleging a breach of contract
committed by the other party, and if that other party subsequently files a suit in the
same court or in any other court for a declaration that no concluded contract has
taken place berween the parties, what is the remedy available to A in respect of
subsequent suit? Since both the suits pertain to the same subject-matter, it is
desirable that the disputes regarding such subject matter are resolved or adjudicated
by one court only. It will avoid contlicting decisions or complications arising
therefrom.
The remedy is provided by S. 10 which provides for the rule of res sub-judice,
i.e., stay of suit. The primary object of the rule of ressub-judice is to prevent courts
of concurrent jurisdiction from simultaneously entertaining and adjudicating upon
parallel litigation filed for the same cause of action, for the same subject matter,
and for the same relief." "The object of Section 10 of Civil Procedure Code is to
prevent the Courts of concurrent jurisdiction from simultaneously entertaining
and adjudicating upon two parallel litigations in respect of same cause of action,
same subject matter and the same reliet. Provisions of Section 10 are mandatory.
This provision will not apply where few of the matters in issue are common and
will apply only when the entire subject matter in controversy is the same." There
are certain conditions which are required to be fulfilled before the suit can be
stayed.
91. Workmen CP Trust v. Board of Tustee, AIR 1978 SC 1283 : (1978) 3 SCC 119.
92. Indian Bank v. Maharashtra State Co-op. Marketing Federation Ltd., AIR 1998 SC 1952 : (1998) 5
SCC 69.
93. Aspi Jal u. Khushroo Rustom Dadyburjor, 2013 (4) SCC 333
Chapter 14 Suis in Particular Cases 233
(i) There must be two suits. One previously and the other subsequently
instituted.
(i) Both must be pending in courts in India or courts outside India
established under the authority of Central Government.
ii) The matter in issue in previous suit is directly and substantially in issue in
the subsequent suit.
(iv) The court in which previous suit is instituted, must have jurisdiction to
grant relief claimed in the subsequent suit.
(v) Both the suits must be between the same parties or their representatives.
(vi) Boch the parties must be litigating under the same title.
Since some of the above conditions are also required in connection with the bar of
es judicata, one may refer to that topic for fuller explanation of them.
If these conditions are fulfilled, it is the dury of the court to stay the subsequent
suit. The court is empowered to stay a later suit, and not a previous suit.' "Even
where the provision of Section 10 of the code do not strictly apply, a civil court has
an inherent power under section 151 to stay a suit to achieve the ends of justice."
The section is mandatory in nature. It bars the trial of the subsequent suit. It does
not bar institution of the subsequent suit. The fundamental test for applicability of
the rule of res sub-judice is whether the decision in a previously instituted suit would
operate as res judicata in a subsequent suit. And if it is likely to operate as res
judicata, the subsequent suit must be stayed and if not, the rule does not apply. Even
if the subsequent suit is stayed, the court is entitled to hear the applications of inter-
locutory nature." "Section 10, however, does not take away the power of the court to
examine the merits of the matter. If the court is satistied that subsequent suit can be
decided purely on legal point, it is open to the court to decide such suit." S. 10 of
the Code provides for stay of subsequently instituted suit only at trial stage. The
section will not apply if one of the suits is pending in a foreign court. The section is,
however, not exhaustive and the court can exercise the inherent power to stay the
trial of the suit in appropriate cases. Though the section bars the trial of the suit, the
effect of contravention of the prohibition does not render the decree or order a
nullity as the rule of res sub-judice is merely a rule of procedure and does not take
away the jurisdiction of the court. And if an objection to the trial of a suit under the
rule of res sub-judice is not taken at an appropriate stage, like res judicata, it is
deemed to have been waived.
1. GC Care Centre & Hospital v. OP Care Pur. Ld., AIR 2004 SC 2339: (2004) 6 SCC 756.
2. P.V. Shetty v. B.S. Giridhar, (1982) 3 SCC 403.
3. NationalInstiuteof MH G NS CPameshwara, AIR2005 SC 242: (2005)2SCC 256
4. BV Sulumkav. Kadarappa, AIR 1974 Mys 63; seealso Surendra Sawhny u. Murlidhar, 2008 (2) Raj LW
929 (933-34) (DB).
5. Pukhraj D. Jain v. G. Gopalakrishna, (2004) 7 SCC 251.
6. Ranju Ram v. Nand Lal, AIR 2011 HP 35 (G7).
(1) Section 10 is applicable to suits instituted in a civil court. It cannot apply

to proceedings of other nature instituted under any other stature.'
(2) A suit may be barred for want of notice in accordance with S. 80.
(3) Where a plaintiff omits to sue in respect of a portion of his claim, he
cannot afterwards sue in respect of the portion of the claim so omitted
according to O. II, R. 2.
(4) Where a person entitled to several reliefs in respect of the same cause of
action omits to sue for any one of them without the leave of the court, he
cannot afterwards sue in respect of the relief so omitted as stated in O. II,
R. 2.
(5) Order IX, R. 9 states that when a suit is dismissed for default, the plaintiff
is precluded from bringing a fresh suit in respect of the same cause of
action.
(6) Were a suit has abated or has been dismissed under O. XXII, R. 8, no
fresh suit can be brought in respect of the same cause of action according
to O. XXI, R. 9.
(7) Where a suit has been withdrawn without the leave of the court by
O. XXIII, R. 1, the plaintiff is precluded from instituting a fresh suit in
respect of the subject-matter of the suit so withdrawn.
(8) Where an application to sue in forma pauperis is refused, it is a bar to a suit in
the ordinary manner in respect of the same right to sue, unless the applicant
pays the cost incurred by the opposite party and of the government in
opposing the application in accordance with O. XXXII, R. 15.
9) An order determining an application for compensation for an arrest or
attachment before judgment or for an injunction obrained on insufficient
grounds is a bar to a suit for compensation in respect of the arrest,
attachment or injunction as per S. 95.
(10) A suit by a person against a certified purchaser, on the ground that the
purchase was made benami for the plaintifi, is not maintainable in any case
according to S. 66.
In the following two cases the proper remedy is by application and not by suit:
(1) Questions relating to the execution, discharge or satisfaction of a decree,

and arising berween the parties to the suit in which the decree was passed
or their representatives, are to be determined by the court executing the
decree on application of parties, and not by separate suit according to
S. 47.
(2) No suit can be instituted for obtaining any restitution on reversal of a

decree which could be obtained by application under S. 144.
7. National Instiute of MH & NS v. CParameshwara,AIR 2005 SC 242: (2005) 2 SCC 256.

235
14.19.3 Restitution
Suppose that a decree for specific performance has been passed in the suit which we
have been considering all along and if such decree has been already executed and
deed of conveyance made in favour of the plaintiff. Suppose further, if thereafter
such decree of specific performance is reversed in appeal, revision or any other
proceeding. what shall be the consequence? In such a case, what is the remedy
available to the litigant who has succeeded in obtaining reversal of the decree for
specific performance? The answer is contained in S. 144 which provides for
restitution. The term 'restitution' has not been defined under the Code. It has been
defined to be 'an act of restoring a thing to its proper owner. The word 'restitution'
in its etymological sense means restoring to a party on a modification, variation or
reversal of a decree or order, what has been lost to him in execution of decree or
order, or in direct consequence of a decree or order. The obligation arises
automatically on the reversal or modification of the decree. The doctrine is founded
on equity and is not exhaustive," and therefore even if the case does not fall within
the strict terms of the Code, it is always inherent power/jurisdiction of the court to
grant relief of restitution so as to do complete justice berween the parties." Further,
since the object of the doctrine is to shorten litigation and to afford speedy relief to
the party adversely afftected and merely lays down the procedure, the provision
should be construed liberally. " It is based upon a principle that the act of court can
do no wrong to any person. If a person has received any kind of benefits under a
decree or order of the court and if such decree or order has been reversed or set
aside, the person. who has received the benefit is under a legal obligation to return
the same to the person from whom it has been received. t can also be stated that the
section is based upon the principle prohibiting unjust enrichment.
One can apply for restitution where a decree is varied or reversed in any appeal,
revision or other proceedings or is set aside or modified in any suit instituted for that
purpose. When such an application is made, the court shall cause such restitution to
be made which will place the parties in the position which they would have occupied
but for such decree. An application for restitution under S. 144 is an application for
execution of decree." The words used in S. 144 indicate that it is mandatory for the
court to order restitution. In exercise of this jurisdiction, the court can make any
kind of orders. Restitution may take different forms. And interest is part of normal
relief given in restitution, and such interest is not controlled by the provisions of the
Interests Act." In the case we have been considering, the court may even order
rerurning the possession of the property and cancellation of conveyance. The court
may also order payment of compensation, damages, mesneprofirs, interest or refund
of costs. The person who withdraws proceedings without seeking adjudication of
tbett
8. Concise Oxford Dictionary, 1990, p. 1027.
9. SouthEasiern Coalfields Ltd v. Stateof MadhyaPradesh, AIR 2003 SC 4482: (2003) 8 SCC 648.
10. Kavita Trehan v. Balsara Hygiene Products Ltd., AIR 1995 SC 441: (1994) 5 SCC 380.
1. SouthEastern Coalfields Ltd v. State of MadhyaPradesh, AIR 2003 SC 4482: (2003) 8 SCC 648.
12. Chinnammal v. Arumugham, AlR 1990 SC 1828: (1990) 1 SCC 513.
13. Magbool v. Khodaija, AIR 1966 SC 1194.
14. South Eastern Coalfields Lid v. State of Madhya Pradesh, AIR 2003 SC 4482.
same or even when proceedings are dismissed, the said person is bound to restitute
benefit it has received under an interim order. Also simpliciter withdrawal of
proceedings without restitution of benefit cannor be granted." However, while
passing an appropriate order for restitution, it will be duty of the court to see that
they are properly consequential.
However, it will be necessary to fulfill the following conditions before the

restitution can be ordered:
(1) The decree under which the benefit has been received must have been
varied, reversed, set aside or modified.
(2) The application for restitution must be made by a party entitled to the
benefit by way of restirution.
(3) The partry against whom restirution is ordered must have received some
benefit under the decree which has been subjected to reversal or variation.
An application for restitution lies to the court which has passed the decree or made
the order. "The court which passed the decree or made the order' does not include
the court to which the decree was transmitted for execution." This is in accordance
with explanation to S. 144(1), and can be ordered against the party, who has been
benefited under the decree reversed or its representative, assignee or transferee
pendente lite. However, a court to which the decree is transmitted for execution
cannot order restitution."
The operation of the section is not confined to decrees. It also applies to any other
order. It is obligatory to make an application under S. 144 in such cases and a
separate suit claiming restitution is barred. The court is prohibited from entertaining
any suit claiming restitution which could have been properly claimed under S. 144.
An application for restitution is treated as an application for execution for the
purpose of limitation, and it is governed by Art. 136 of Limitation Act, 1963.
14.20 MISCELLANEOUS
14.20.1 Foreign Judgments

A foreign judgment means the judgment of a foreign court. A foreign court means a
court situated abroad, and not established by Union of India. Such judgment shall
be conclusive berween the parties or persons claiming under them as provided under
S. 13 of the Code. "It is a well settled proposition in private international law that
unless a foreign court has jurisdiction in the international sense, a judgment
delivered by that court would not be recognized or enforced in India." the
Jurisdiction, which is important in such matters, is only the competence of the
15. DTCu. InternationalAvenues,161 (2009) DLT 16: AIR 2009 (NOC) 2760 (Del-DB).
16. Neelathupara Kumni v. Montharapalia Padipura, AIR 1994 SC 1591: 1994 Supp (3) SCC 760.
17. Tbid.
18. Mahijibhai v. Manibhai, AIR 1965 SC 1477.
19. Sankaran Govindan v. Lakshmi Bharathi, (1975) 3 SCC 351
court, i.e. territorial competence over the subject matter and over the defendant. Its
competence or jurisdiction in any other sense is not regarded as material by courts in
this country." the material date to decide the jurisdiction of the court is the time
when the suit is instituted."" The rules laid down in this section are rules of
substantive law and not merely of procedure. The rule ofconclusiveness of foreign
judgment applies only to matters directly adjudicated upon. However, in following
cases, such judgment is not regarded as conclusive:
) where it is not given by a court ofcompetentjurisdiction;

i) where it is not a decision on merits of the case;
i) where ithasbeenobtainedbyfraud;
(iv) where the judicial proceedings resulting in such a judgment are opposed to
natural justice;
(v) where itrefusestorecogniselaw of India, ifapplicable;
(vi) where it is based upon an incorrect view of international law;
(vii) where it sustains a claim arising out of a breach of Indian law;
In the above cases, forcign judgments are not conclusive and their findings do not
operate as res judicata." "One of the principles on which foreign courts are
recognised to be internationally competent is voluntary submission of the party to
the jurisdiction of such foreign court. The reason behind this principle is that having
taken a chance of judgment in his favour by submitting to the jurisdiction of the
court, it is not open to the party to turn around when the judgnment is against him
and to contend that the court had no jurisdiction.The courts refuse to apply a
rule of foreign law or recognise a foreign judgment or a foreign arbital award if it is
found that the same is contrary to the public policy of the country in which it is
sought to be invoked or enforced. " It is always open for any party to show that such
judgment is not conclusive. But the burden of proof rests upon the party which
assails the judgment. If a certified copy is produced, the court shall presume that it
was given by a court of competent jurisdiction. However, such presumption is liable
to be rebutted in case the court had no jurisdiction (S. 14). The crucial date to
determine whether the judgment is of a foreign court or not is the date of the
judgment and not the date when it is sought to be enforced or executed."
A foreign judgment which is final and conclusive may be executed in India as ifit
had been passed by the district court (S. 44A) and in execution proceedings it is
open to a judgment-debtor to raise all objection which he may take in a suit.
20. R. Visuwanathan v. Rukn-ul-Mulk-Syed Abdul, AIR 1963 SC 1.

21. Andhra Bank Lid. v. R. Srinivasan, AIR 1962 SC 232.
2.Moloji v. Shankar, AIR 1962 SC 1737.
23. Union of India v. MV Damodar, AIR 2005 Bom 137.
24. YNarasimha Rao v. Y Venkata Lakshmi (1991) 3 SCC 451.
25. Narasimha Rao v. Venkata Lakshmi, (1991) 3 SCC 451.
26. Renu Sagar Power Co. Ltd. v. General Electric Co, AIR 1994 SC 860: 1994 Supp (1) SCC 644.
1. Raj Rajendra Sardar Moloji Nar Singh v. Shankar Saran, AIR 1962 SC 1737.
238 Mulla The Key to Indian IPractice Chapter 14
If the violation of any order passed by a civil court is made the ground of issuance
of a red corner notice, the court will enquire as to whether the same has undergone
the tests laid down under Sections 13 & 44-A of the Code.
14.20.2 Caveat
Sometimes, an unscrupulous party obtains ex parte injunctions or other interim
reliefs by misleading the court. It takes quite long to get such interim reliefs vacated.
It may harm genuine or bona fide interests because of the abuse of the legal process.
To avoid such a situation, there is a provision to prevent passing of ex parte orders
without hearing attected parties. In such cases, a caveat may be lodged as under
S. 148A. A caveat is a notice given by one party to the proper ofticer to the ettect
that no action of a certain kind may be taken without first informing the person
who gave the notice (caveator), and until the party has been heard in opposition."
Caveat is a precautionary measure having the underlying object firstly, to

safeguard the interest of a person against an order that may be passed on an
application in a suit or proceeding instituted or about to be instituted, giving him an
opportunity of being heard, and secondly, to avoid multiplicity of proceedings.
A caveat may be filed by any person who is going to be affected by an interim
order likely to be passed on an application which is expected to be made in a suit or
proceedings instituted or about to be instituted." The caveat must state the nature
of the application expected to be made against or affecting the caveator. There is no
form prescribed for lodging a caveat. In absence of such a form, it may be in the
form of an application stating the facts briefly and the nature of the application
expected to be made. It is also not necessary that the caveator is joined as a party in
such expected application. It is sufficient if the caveator claims and establishes prima
facie a right to appear before the court."" Requirement of specifying the name of a
party likely to initiate proceedings is only directory and caveat cannot be rejected on
this ground.
A copy of the caveat must be sent by registered post acknowledgement due upon
the opponents. If any application is made thereafter, the court shall serve a notice
upon the caveator. A caveator is entitled to receive copies of the application and
documents filed by the opponents. No order would be ordinarily passed without
aftording an opportunity of hearing to the caveator. However, the lodging of caveat
does not exclude the jurisdiction of the court to grant ex parte relief, if there are
compelling circumstances, and the order passed without notifying the caveator shall
not be void. The caveator cannot be permitted to steal a march over the opponents
by lodging a caveat. In cases where delay may defeat the purpose of filing the suit or
if the suit is likely to be rendered infructuous, the court may pass ex parte orders as
28. Bhavesh Jayanti Lakhani v. State of Maharashtra, (2009) 9 SCC 551 (588).
29. Shorter Oxford Dictionary, Vol. 1, 1990, p. 301.
30. Siddalingappa v. Veeranna, AIR 1981 Kant 242.
31. Nirmal Chandra v. Girindra Narayan, AlR 1978 Cal 492.
32. RBI Employee'sAssociation v. RBI, AIR 1981 AP 246.
239
may be necessary, norwithstanding the caveat. It cannot be allowed to be misused as
an instrument to buy time. It is essentially a matter of judicial discretion. Section
148A does not contemplate the enforcement of a notice, where notice is otherwise
ruled out by other provisions of the Code. The caveat shall remain in force for a
period of 90 days. If caveat is not made afresh, no notice is required to be served if
the application is made after the expiry of the caveat.
14.20.3 Powers of Court
14.20.3.1 Enlargement of Time (Section 148)

Under S. 148 of the Code, high court has ample powers to extend the time to
comply with directions of high court."
It is evident from the language employed in the provision that the power given to
the court is discretionary and is intended to be exercised only to meet the ends of
Justice.5
Where the court has granted time to do any act, it has discretion to extend such
time from time to time. The 'act to be done must be the one prescribed under the
Code and the time for doing that act is fixed by the court, and not by the Code. If
for the 'act to be done' the time is prescribed by the Code itself, S. 148A has no
application and in such cases time can only be extended by the court in exercise of
its inherent powers. "Extension of time' can be done even after the time originally
granted has expired. However, the time so extended shall not exceed 30 days in
total from the date of expiry of the period originally fixed or granted. However,
extension beyond maximum of 30 days can be permitted if the act could not be
performed within 30 days for the reason beyond the control of the party, in exercise
of its inherent powers. Such power is given to secure the ends of justice.
14.20.3.2 Inherent Powers

The court has inherent powers to make such orders as may be necessary for the ends
of justice or to prevent abuse of the process of the court. In order to do real and
substantial justice berween the parties or to prevent abuse of the process of the court,
the court has such powers to pass appropriate orders. The court is always
empowered to satisfy itself as to whether a party before it suffers from mental illness
or not. The primary duty of the court is to see that truth comes out. The court has
complete inherent power in an appropriate case under S. 151 of the Code to pass all
orders for doing complete justice to the parties to the suit." The powers relate to
matters of procedure. "Inherent powers enshrined under Section 151 Civil
33. Chloride India Lid u. Ganesh Das Ram Gopal, AIR 1986 Cal 74 (DB).
4Blagadeswar v. Govt. of A.P., 2008 (2) ALT 515 (520) (DB).
35. DVPaul v. Manisha Lalwani, AlR 2010 SC 3356 (3361); seealso Manohar Singh v. DS Sharma, (2010)
1 SCC 3.
6. Code of Civil Procedure, 1908 (as amended by the Amendment Act, 1999 w.e.f. 1 July 2002), s. 148.
.Salem AdvocateBarAssociationv. Union of India, AIR 2005 SC 3353.
58. Jogdhayan v. Babu Ram, AIR 1983 SC 57: (1983) 1 SCC 26.
. LalitKishorev.MeeruSharma,(2009) 9 SCC433(434).
Procedure Code can be exercised only where no remedy has been provided for in
any other provision of the Civil Procedure Code. In the event that a party has
obtained a decree or order by playing a fraud upon the court, or where an order has
been passed by a mistake of the court, the court may be justified in rectifying such
mistake, either by recalling the said order, or by passing any other appropriate order.
However, inherent powers cannot be used in conflict of any other existing provision,
or in case a remedy has been provided for by any other provision of the Civil
Procedure Code.""
Section 151 deals with such power. It does not confer any power, but merely
indicates that the court possesses such inherent powers. When the Code is silent
regarding a procedural aspect, the inherent power of the court can come to its rescue
and act ex debito justitiae.""
An application invoking inherent powers of the court under S. 151 is not one
which a party is required to make under any provisions of the Code for setting in
motion the machinery of the court." It cannot also be exercised when there are
specific provisions in the Code, i.e., the court cannot exercise inherent powers to set
aside an ex parte decree where the case does not satisty the requirement laid by O.
X, R. 13. Ifa plaint is rejected and the plaintiff does not pursue the remedy under
the Code, the court cannot set aside the order in exercise of inherent powers. When
there is a specific remedy available under the Code, it is settled law that an
application under S. 151 of the Code is not maintainable." The inherent powers do
not enable the court to do which is prohibited by the Code or any statute." While
exercising powers under S. 151, the court first has to consider whether exercise of
such power is expressly prohibited by any other provision of the Code, and if there is
no such prohibition, then it will consider whether such power should be exercised,
on the basis of facts mentioned in the application." In short, the power does not
exist which enables the court to render the provisions of the Code, nugatory. Its
exercise cannot be inconsistent with the provisions of the Code. Object and scope of
S. 151 of the Code is to supplement and not to override or evade other express
provisions of the Code.4
Under S. 151, the court can issue direction either suo motu or otherwise.""
Inherent power cannot be exercised to re-open the settled matters." Such power has
its roots in necessity and its breath is co-extensive with the necessity." It is trite that
the exercise of inherent power is not invoked for reviewing any order." The court
40. Ramji Gupta v. Gopi Krishan Agrawal, (D) 2013 (9) SCC 438.
41. Jet PyuwoodPut Lid VMadhnkar Nawlakha, AlR 2006 SC 1260: (2006) 3 SCC 699.
42. G Christhudas v. Anbiah, AIR 2003 SC 1590.
43. Ramesuar Sarkar v. The Collector Nadia, 2009 (1) Cal LJ 303 (305) (DB).
44. Damodarar Pillai u.South Indian Bank, AlR 2005 SC 3460: (2005) 7 SCC 300.
45. Shipping Corpn. of India v. Machadeo Brothers, AIR 2004 SC 2093: (2004) 11 SCC 168.
46. State of U.P, v. Roshan Singh, (2008) 2 SCC 488.
47. Sharda v. Dharampal, AIR 2003 SC 3450: (2003) 4 ScC 493.
48. StateofWest Bengalv Karan SinghBinayak, AIR 2002 SC 1543: (2002) 4 SCC 188.
49. NS Mills v. Union of India, AlR 1976 SC 1152: (1976) 1 SCC 120.
50. Inderchand Jain v. Motilal, (2009) 14 SCC 663 (669).
can grant temporary injunction in cases not covered by 0. XXXIX." It is necessary

to remember that courts are established to do justice between the parties. Where a
matter has expressly been provided for in the body of the Code, ordinarily inherent
power shall not be resorted to. When the proceedings under Art. 226 of the
constitution of India stand terminated by final disposal of writ petition, it is not
open to the court to reopen the proceedings by means of a miscellaneous
application." There are innumerable situations for which no express provision is
made by the Code. In such cases, the court is not helpless, and possesses the power
to do complete justice betrween the parties.
14.20.3.3 Power to Correct Error

If there are any clerical or arithmetical mistakes in judgments, decrees or orders, they
can be corrected by the court. It can be done suo motu or on the application of any
party. Similarly, if there are any errors in the judgments, decrees or orders, arising
from accidental slip or omission, such errors can be corrected by the court. Such
powers can be exercised at any point of time according to S. 152. Section 152 can be
invoked for the limited purpose of correcting clerical errors, or arithmetical mistakes
in the judgment, and cannot be invoked for claiming a substantive relief which was
not granted under the decree, or as a pretext to get the order which has attained
finality, reviewed." Provision under S. 152 should not be construed in pedantic
manner." It cannot be invoked to modify, alter or add to the terms of the original
order or decree so as to, in effect, pass an effective judicial order after the judg-
ment. The power under S. 152 can be exercised by the court which passed the
decree by supplying the omission." Where the author of the judgment himself
admitted that there was a typographical mistake, the high court would not be right
in coming to contrary conclusion. The court has the power to vary its judgment or
amend its orders so as to carry out the intention and express the meaning of the
court at the time when the order was made. If there are any errors or defect in any
proceeding in a suit, it can be corrected at any point of time according to S. 153.
14.20.3.4 Transfer of Suit

In certain circumstances the suit or other legal proceedings may be required to be
transferred from one court to another. Section 24 deals with the general power of
transfer and withdrawal, of the high court and the district court. A court acting
under S. 24 of the Code may or may not in its judicial discretion transfer a
51. Manohar Lal v. Seth Hiralal, AlR 1962 SC 527; Cotton Corpn of India v. United Industrial Bank, AIR
1983 SC 1272; Tanusree Basu v. Ishani På. Basu, AIR 2008 SC 1909: (2008) 4 SCC 791.
52. Nahar Industrial Enterprises Ltd. v., Hong Kong & Shenghai Banking Corpn., (2009) 8 SCC 646 (703).
53. Stateof Haryana v. Babu Singh, AIR 2009 SC 472 (476, 477) ?.
S4. Bijay Kumar v. State of Iharkhand, AIR 2005 SC 2435; Century Textiles Industries v. DeepakJain, (2009)
108 Cut LT 226 (231) (SC).
55. Niyamat Ali Molla v.SomargonHousingCo-op.Socicty Ltd, AIR 2008 SC 225: (2007) 13 SCC 421.
S6. Stae of Punjab v. Darshan Singh, AIR 2003 SC 4179: (2004) 1 SCC 328.
. PratibhaSinghv. ShantiDevP
i rasad,AlR2003SC 643: (2003)2SCC330.
8. Union Bank of India v. Naurang, (2009) 16 SCC 352 (353).
9. Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan, AIR 2003 SC 351.
particular casc. This section does nor prescribe any ground for ordering the transfer
of a case. In certain cases, it may be ordered suo motu and it may be done for
administrative reasons. But, when an application is made for transfer by a party, the
court is required to issue notice to the other side and hear the party before directing
transfer. The powers, no doubt are very wide, however, those powers are being
exercised within certain permissible limitations. Such transfer may be between the
courts of co-ordinate jurisdiction or otherwise. The power under S. 24 can be
exercised on an application for transfer by any of the parties to the suit, appeal
or other proceedings or suo-motu by the court. A suo-motu transfer by the high
court or district court does not call for issuance of notice to the parties before
passing the order. However, where the transfer is on the application of one of
the parties, notice to the opposite party is mandatory."
Under S. 24, a suit, appeal or other proceedings can be transferred or withdrawn

at any stage even after the commencement of hearing and even in the course of
execution proceedings.
The petition for transfer of the suit, is a proceeding independent of the suit, and
the order passed in the transfer petition cannot be characterised as an order passed in
the pending suit itself. "Transfer of suit from one Court to another for joint trial. It
will not take away the right of parties to invoke Order 23 Rule 3 of C.P.C. and there
is also no prohibition under Order 23 Rule 3 or Section 24 of the Civil Procedure
Code to record a compromise in one suit. Suits always retain their independent
identiry and even after an order of consolidation, the court is not powerless to
dispose of any suit independently."Ordinarily such powers are not exercised, unless
there is likelihood of miscarriage of justice. If grave allegations are made against the
judge and if there is no confidence that justice may be received at his hands, such
power can be exercised. However, the court must be satisfied that the allegations are
not frivolous or that they are not made with a view to escaping from an
inconvenient court. The mere convenience of the parties may not be enough for the
exercise of power but it must also be shown that trial in the chosen forum will result
in denial of justice. If there is likelihood of undue hardship or inconvenience in
adducing evidence at a particular place and if the entire evidence is available at some
other place, the suit, or other proceedings can be transferred. An order passed on an
application under Section 24 of the Code has not been made appealable under
Section 104 of the Code or under any provision of the Code.
Such power of transfer also vests in the Supreme Court and has been laid down in
S. 25. It confers powers on the Supreme Court to transter any suit, appeal or other
proceeding from one high court to another high court or from a civil court in one
state to another civil court in any other state. It can be exercised on grounds similar
60. Jitendra Singh v. Bhanu Kumari, AIR 2008 SC 2987 (2989) : (2009) 1 SCC 130.
61. Vivekananda Nidhi v. Asheema Goswami, (2000) 10 SCC 23.
62. Mahalaxmi Co-operativeHousingSociery Lid. v. Ashabhai Atmaram Patel, 2013 (4) SCC 404.
63. DAVBoys Sr. SecondarySchool v DAV College Managing Committee, (2010) 8 SCC 401 (405).
64. Amit Khanna v. Suchi Khanna, (2009) II DMC 227 (AIl-DB).
243
to those indicated above, and where the transfer is expedient for the ends of justice.
Where the defendant is likely to suffer extreme hardship, face difficulties in
travelling to a distant place on account of advance age, has liability of documentary
evidence, and majority of the witnesses, the power of transfer can be exercised.
Where court feels that the plaintiff or the defendant is not likely to have a 'fair trial'
in the court from which he secks to transfer a case, it is not only the power, but the
duty of the court to transfer thecase.
,
.
.
. .
.
65. Kulheinder Kaur v. Kandi Friends Education Trust, (2008) 3 SCC 659: AIR 2008 SC 1333.
CHAPTER 15
ALTERNATIVE DISPUTES REDRESSAL
MECHANISMs (ADR)
The main challenge with which the judiciary in our country has faced is the huge
arrears of cases pending at different levels in the courts, including high courts. The
adversarial legal system, procedural wrangles and multiplicity of various remedies in
the form of appeals or revisions are some of the factors which leave a litigant a little
bit bitter and frustrated while waiting for justice for years. Keeping in mind the said
challenge, a special provision has been introduced in the form of S. 89 by the CPC
(Amendment) Act, 1999, w.e.f. 1 July 2002, in order to help the litigants to settle
their disputes outside the court instead of going through the elaborate process in the
court trial, by simpler and quicker methods. These methods are known as Alternate
Dispute Redressal Mechanisms (ADR). However, ADR is not a substitute for
judicial system, but supplementary to the judicial system. Having a hearing after
completion of pleadings to consider recourse to ADR process under S. 89 of the
Code is mandatory, but actual reference to ADR process in all cases is not
mandatory.
The parties to the suit or proceeding may request the court to reter their disputes
and if the court is satisfied that there exists an element of settlement which may be
acceptable to the parties, it may refer the parties to any of the forums mentioned in
the section at any stage of the proceedings. The decision rendered by these forums
shall have the same binding effect as if made by a civil court after an elaborate trial,
leaving little scope for appeal or revision particularly when the dispute is resolved
through Judicial settlement, Lok Adalat or Mediation.
The mechanisms mentioned in S. 89 are:
)arbitration;
d rmori beveo7 non
(ii)conciliation; latbih 1tiiaDitt01q
1. Afcons Infrastructures Ltd. v. Cherian Varkey Construction Co. (P,) Lid., (2010) 8 SCC 24 (38).
246 Chapter 15
ii) judicialsettlementincludingsettlementthrough Lok Adalat; and

(iv) mediation.
Order XXVII, R. 5B and O. XXIlI A, R. 3, of the CPC contain special provisions
enjoining a duty upon the court to make efforts and to assist the parties in arriving
at a settlement in certain categories of suits/ proceedings relating to matters
concerning family, such as marriage and divorce, guardianship, custody, mainte-
nance, adoption, succession, etc and in suits/ proceedings by or against Government
including public officers. Similar provisions are also found in Hindu Marriage Act,
1955, S. 23; and the Industrial Disputes Act, 1947, S. 12.
These provisions have been enacted with the ultimate aim of amicably solving the
dispute berween the parties with the aid andassistance of the court with assurance of
just, fair and lasting solution of the disputes expeditiously and permanently, and
preventing the litigation from becoming a protracted affair.
When the dispute in the suit is referred to arbitration or conciliation for settle-
ment, the provisions of the Arbitration and Conciliation Act, 1996 govern the case.
Section 89 makes applicable the Arbitration and Conciliation Act, 1996, from the
stage after the exercise of option and making of reference. When the Arbitration
and Conciliation Act, which is a special law, provides for a forum of adjudication, S.
89 of the Code cannot be resorted to refer a dispute for arbitration unless there is
mutual consent of all parties or arbitration agreement. The High Court of
Himachal Pradesh has evolved a pre-trial, in trial and post trial Conciliation Project
in the state of Himachal Pradesh.
Lok Adalats were started initially as a voluntary organisation for informal

resolution of disputes, which has received a statutory recognition in the Legal
Services Authorities Act, 1987. When a matter is referred to Lok Adalat for settle-
ment by a civil court, the provisions contained in the Legal Services Authorities Act,
1987 shall govern the parties in the matter of resolving the dispute.
And when the matter is referred to mediation for settlement, the parties shall
follow the procedure as may be prescribed. The Delhi High Court has framed The
Mediation and Conciliation Rules, 2004, to govern the procedure of mediation.
Delhi has developed a full-fledged system of mediation by establishing mediation
centers at district courts and high court, which are manned by independent fully
trained judicial officers' mediators and advocates' mediators. When the mediation
succeeds and the parties agree to the terms of settlement, the mediator will report
the same to the court and the court eftects the compromise and passes a decree in
accordance with the terms of settlementaccepted by the parties. And if conciliation,
mediation or judicial settlement is not possible despite efforts being made, the case
will ultimately go to trial and in such an eventuality, any additional factual informa-
tion received from a party is kept confidential and not disclosed to the other party
2. SalemAdvocate BarAssociation v. Union of India, AIR 2005 SC 3353.

3. Southern Structurals Lid. v. K.S.E. Board, 2008 (1) KLT 105 (FB).
Chapter 15 Altemative Disputes Redresal Mechanisms (ADR)
247
and even the court. The lawyers should advise their clients to try for mediation for
resolving the disputes, especially where relationships like family relationships and
business relationships are involved, otherwise the litigation drags on for years and
decades often ruining both the parties."
These forums are not bound by the rules of procedure and the rules of evidence
under the Indian Evidence Act, 1872 and flexible procedures can be adopted so as to
ensure speedy and inexpensive conduct of proceedings.
Where a matter referred to any of the modes of settlement is settled, the entire
court fee paid on the plaint is liable to be refunded and the court which has referred
the matter shall issue a certificate to the plaintiff to receive the full amount of court
fee paid, from the collector, as provided under S. 16 of the Court Fee Act, 1870.
ty trcautms
T
.22"
4. B.S. Krishna Murthy v. B.S. Nagaraj, AIR 2011 SC 784: 2011(1) SCALE 431
S. Vasudevan VA v. State of Kerala, AIR 2004 Ker 43.
Appendix
CITY CIVIL COURTS AND THEIR

JURISDICTION
00.08 oqU
bo2untln bsdisbyH
007,02 o1q
In connection with courts in presidency towns, the jurisdiction of city civil courts
was left over. It is proposed to deal with these courts here.
City civil courts have been established in the three presidency towns, and also in
the city of Ahmedabad and Hyderabad. In the presidency towns, these courts
exercises the jurisdiction that would otherwise have been exercised by the respective
High Courts. Elsewhere the city civil court exercises the jurisdiction that would
otherwise have been exercisable by the district court. These district courts, it should
be noted, exercise only ordinary original civil jurisdiction. They have no appellate
jurisdiction.
d rhi evi2i11203915 wo inob1c31qri ot211:09rvo 91
1.APPEALS o dguocvitsoqeo1s: tonoituibainuhjviahnigioviunibnoadilo
Appeals against their decrees and orders lie (where appeal is allowed by law) to the
representative High Courts. In certain cases-Madras and Hyderabad there is
provision for internal appeals-that is to say, an appeal lies from the decision of a
judgeto the principal judge.e o1 5ooi91 ioir noiotLzitut no21,mit bugo1 aA
2.JURIDICTION-PECUNIARY LIMITS1ai bnuvyairstdae) noitib mi

The pecuniary jurisdiction of the city civil courts in the presidency towns is limited.
That of the city civil courts elsewhere is unlimited-as would be expected in the
case of a court which takes the place of the district court." This applies to the city
civil courts in Ahmedabad and Hyderabad.
)Cet
1. Chapter 2, under the heading Courts in Presidency Towns.

2. See Chart.
. The City ofAhmedabad Courts Act 1961 (Gujarat Act 19 of 1961), s. 3.
4. Ibid., s. 12.
250 Mulla The Key to Indian Practice Appendix
3. JURISDICTION-OTHER LIMITATIONS
Besides pecuniary limitations on the jurisdiction of ciry civil courts where applicable,
there are, on their jurisdiction
() local limitations; and

i) limitations asregardssubject-matter in certaincases.
Chart ShowingPecuniary Limits of Jurisdiction in

City Civil Courts
ity CivilCourts Pecuniaryjurisdiction

Ahmedabad Upto Rs 50,000
Calcutta Upto Rs 50,000

Hyderabad' Unlimited
LMadras |Upto Rs50,000
Chart SharingPecuniary Limits ofJurisdiction of

Courts in Delhi
CivilJudge Up to Rs 3,00,000
District JudgelAddl District Judge Above Rs 3,00,000 and
upto Rs 20,00,000
HighCourt Above Rs20,00,000
As regards local limitations, it is sufficient to say that jurisdictional limits of the

three city civil courts for the presidency towns are co-extensive with the local limits
of the ordinary original civil jurisdiction of therespectivehigh court.
The jurisdictional limits of the city civil court at Ahmedabad are
co-extensive with those of the city of Ahmedabad as defined in the relevant Act.
The jurisdicion limits of the city civil courts at Hyderabad are similarly defined.
As regards limits on jurisdiction with reference to subject-matter, most of the Acts,

exclude, from the competence of city civil courts, admiralty and vice-admiralty
jurisdiction, testamentary and intestate jurisdiction, and matrimonial and insolvency
jurisdiction. The ciry civil court at Calcuta, however, stands in special category in
5. The City of Ahmedabad Courts Act, 1961 (Gujarat Act 19of 1961),ss. 3 and 12.
6. The Madras City Civil Court Act, 1892 (Central Act 7 of 1892), ss. 3 and 3A, and norification
thereunder.
7. Andhra Pradesh(Telegana Area) Civil Courts Act, 1954, as amended.
8. The (Calcutta) Ciry Civil Court Act, 1953 (West Bengal Act 21 of 1953) s. 5 (2).
9. Bombay City Civil Court Act, 1948, s. 3, read with the Greater Bombay Laws and Bombay High Court
Declaration of Limits Aco) 1945; Calcutta City Civil Court Act 1953, s. 2(3) and 5(1); Madras City
CIvil Court Act 1892,SS.2(2) and 3.
10. The City of Ahmedbad Courts Act, 1961 (Gujarat Act 19 of 1961), ss. 2(2) and 3.
ndix City Civil Courts and theirJurisdiction 25
espect, because, the relevant Act contains elaborate provisions which, whi
erring on the city civil court, jurisdiction to grant succession certificates an
diction under Guardians and Wards Act, excludes from its jurisdiction
erous matters listed in the Schedule to the Act. The list is a long one, and it
roposed to reproduce it here.
t, .
. ,
tPrdai irw,
:, 8-} Ci St
Codeaf iOAds2,
. .í, ::2)
C.npsit , 47
Subject Index
Breach of Contract, 31-32

Affidavit C
as required by the provisions of O VI, 75
Carriage by Air Act, 214
facts contained in, 104
forms of, 106 Cause of Action
applicability under section 17, 39
Amendment Act 1999 (and 2002), 3 definition of, 26
essentials of suit, 26
AnimuRsevertendie4,6 h transactions as distinguished from, 59
Anti Suit Injunction, 196
Caveat, 238-239
Appeals
a88rieved party, when may file, 156 Chartered High Courts, 7
application for acceptance of additional Civil Court
evidence, 165 pecuniary jurisdiction of, 11
as indigent persons, 221 suits instituted in, 234
from appellate decrees or second
appeal, 170 t territorial jurisdiction of, 42
validity of the decision by filing
from orders, 176-178 suit in, 16
from original decrees, 155-158
hearing of, 163-166 Civil Procedural Law, 3
memorandum of, 158-160
im
procedure in appeals to the Supreme
Court, 175-176
Civil Suit, 205
Code of 1859 (And 1882), 3

second or special, 170 Code of 1859 (And 1882), chapters in, 4
substantial question of law, 172-173
i1Code of CivilProcedure(Amendment)
Appellate Court Act 1999 (And 2002), 3
authority and jurisdiction of, 165
cros-appeal and cross-objections, Companies Act 1956, 47
161-163
Consumer Protection Act 1986, 185
judgment of, 166-167
power to demand security for costs from Counter claim, as independent suit, 93
appellant, 161
Court of Appeal, 158
Arbitration Act 1940, 112
Courts See also "Civil Court
Attachment of Property, 149 appellate jurisdiction of, 14
irregularity in the conduct ofsale ofgib by which decrees may be
attached property, 151 executed, 152-153
classes of, 174
B
constitution of, 7
Bombay Civil Courts Act 1879, 11 in other parts of India, 13
254 Subject Index
Courts (Contd) E
in presidency towns, 13
Ejusdem Generis, 202
of limited jurisdiction,231
of preterential jurisdictions, 14 Element of Intention, 45
of smallcause,14
Essentials of Suit
original jurisdiction of, 12
cause of action, 26
powers of, enlargement of time
(section 148), 239 necessary party, 24
Proper party, 23
inherent powers, 239-241
reliefclaimed, 29-30
to correct error, 241
subject matter, 29
to transfer suit, 241-243
rules governing fhunctioning of, 15 Ex Debito Justitiae, 6, 240
D ExecutionofDecree
Decrees
againstproperty ofjudgment-debtor,
against a minor, 218
149-151
application for execution of, 144 application for, 144
application for execution of, mode of, 145
procedure for hearing in, 154
execution against person of
Judgment-debtor other than Express Bar, 18
money decree, 146
F
application for execution of, procedure
for, 146-147 Foreign Judgment, 236-238
execution of, 143
execution of, stay of, 160-161 Forms
of plaint in a suit for specific
kinds of, 133-134
non-service of notice, 138 performance, 33
notice before issuing process, 144-145 G
other special provisions, 216
Garnishee Proceedings, 148
payment out of courr, 147-148
Government of India Act,7
Discovery and Inspection
documents for, production under Order H
XIII, 116
Hearing and disposal
documents for, summoning ofwitnesses
adjournment of, 122
[Order XVI], 113-116 allegation of fraud, 121
inspection, 109-110
issue relating to sufficiency of
non-compliance with order for, 110-111
Court fees, 121
notice to admit facts or documents
jurisdiction, 120
[Order XII), 111-112
of facts by interrogatories, 104 High Courts Seealso"Chartered
Discovery and Inspection High Courts
premature discovery, 109 establishment of, 7 ah
jurisdiction of, 8
Doctrine of ResJudicata, 225
High Courts Act 1861, 7
Documents
application for discovery of, 109 I
inspection of, 111 Implied Bar, 19
Subject Index
255
Income-tax Act 1961, 19 P
Indian Contract Act 1872, 1 Parties and cause of action

fresh suit, leave of Court sine qua non, 61
Indian Councils Act 1861,7
Indian Majority Act 1875, 217
toiv
iog
misjoinder or non-joinder of parties, 66
no defendant sued or vexed rwice for
same cause of action, 59--60
Indian Penal Code 1860, 1
non-impleadment of necessary party, 66
IndianSuccessionAct 1925, 1,5 di splitting claims and remedies based on
samecause of action prevented, 60
Indian Trusts Act 1882, 1 holaV enr?
suit for specific performance, 62
Industrial Disputes Act 1947, 231 9f
2Payment into Court, 202
Insolvency Courts, 5
Pecuniary Jurisdiction, 15
Interpleader Suit, 216-217
Place of Suing
ascertaining the particular Court
of, 51-52
Joinder of Parties, 63-64 1ldu
date for determining territorial
Jurisdiction See also "Original and jurisdiction, 42
Appellate Jurisdiction'" factors ofinmportance in determining. 50
courts of limited, 231 objection to jurisdiction for, 52
kinds of, 8 suits for immovable property, 38
of districtcourts, 11 suits for land, 49
ordinary original and extraordinary contained in Ss. 16, 17 and 20 of the
original civil jurisdiction, 12 Code, 38
over subject matter, 29
Pleading and Particulars, 98-101
power of court to entertain suits and
signing and verification of pleading, 215
applications, 8
regards local limits, pecuniary Pleading, Amendment of, 98-101
limits, and subject-matter, 11
Practice and Procedure, undertaken
waiver of objection to territorial or
for enforcement or recognition of legal
pecuniary, 54
rights, 2
L
Precept, 153 ro 3po
2tOT
1011112 1
Limitation Act 1963, 139, 236
Preferential rights, claim of, 98
PresidencySmallCauseCourts ia1qa1
r
Memorandumof Appeal,221 Act 1882, 2, 37
Munsiff's court, 37, 174 Ptrinciple of res judicata, applicability,

231-232
N
Notice Proceedings
permission to institute suit without, 212 Judgment, arrest betore, 190-191.
attachment of property
requirement of, mandatory, 138
before, 191-193
payment for settlement of the claim, 202
Ordinary Original Jurisdiction, 12 receiver appointed by the court, 196
security for the payment of costs incurred
Original and Appellate Jurisdiction, 10 in defeating the suit, 200
256 Subject Index
Proceedings (Contd.) Review

special, death, marriage and insolvency ofjudgment,183-187
ofparties,205 points of distinction with revision, 186
special case under section 90, Order
Revision
XXXVI, 205
supplemental, compromise of pointsof distinction with review, 186
suits, 203-205 S
injunction under Order XXXIX,
Specific Relief Act 1963, 1
appointment of a receiver,
193-197 Suits Valuation Act 1887
grant of, 196 effect of the provision of S. 11, 56
kinds of, 194
withdrawal of suits, 200 Suits Valuation Act 1887
section 11 of, 56
Provincial Small Cause Courts
Act 1887, 14 Suits
against public officer, 211
Public Interest Litigation, 231 ascertaining the particular court
R
for filing. 51
by indigentpersons,218-219 07t
Receiver by or against firms, suit against
appointed by the court, 145 a firm, 222
when partners may sue or be sued in
Reference, revision and review
firm name, 221
of judgment, 179
by or against minor and lunatic by or
Rejection of plaint against minor and lunatic, (Order
application for, 77 XXXII), 217-218
at belated stage, 79 classes of, 38
barred by any law, 77 compromise of, 203-205
ground for, 77 conditions for barring res judicata
matters outside purview, 77 (section 11), 225-227
want of jurisdiction, 78 consent of the Central Government for
Reliefs filing, 214
tor suits on contracts, 31-32 contents of plaint under section 80, 215
in suits for torts, 32 disposal of, after framing issues not
maintainable, 120
in suits on mortgage, 32
on preliminary issues, 118
Representative Suits See "Public Interest effect ofprovisions of cl 12, 49
Litigation" express bar, 18
factors constituting a failure of,
Res Judicata justice, 53-54
applicability to other proceedings, 231 on foreign judgments, 38
bar of, 232 for compensation for wrong done to the
person or to movable propery, 40
Residence, 46 for immovable property under,
Ss. 16-17, 38, 39
Restitution land, 49
application for, 236
other than those for land, 49
on reversal of a decree, 235-236
four essentials of, cause of action, 26-29
security for, 161
Subject Index
257)
Suits (Contd.) Suits (Contd.)
cause of action, joinder of security for the payment of costs
defendants, 68-69 incurred, 200
cause of action, joinder of settlement of issues,decree, 130-132
plaintiffs, 66 first hearing, 117
cause of action, one plaintiff, one hearing of the suit and examination of
defendant, and several witnesses, 124
causes of action, 68 regarding territorial jurisdiction and
parties, 23-26 limitation, 121
parties, non-joinder of, 71-72 where parties do not appear, 133
procedure in case of signing and verification of pleading for
misjoinder of, 66 filing, 215
reliefs claimed, 29-30 title under S. 79, O XXVII, R. 3, 214
subject matter, 29 venue for filing, 37
hearing and disposal of, 117 written statement for specific
implied bar, 19 pertormance, 96
institution of, 75-76
Summons
summons to defendant, 81
constitution of, 81-82
interlocutory order to defend, 224
personal or direct service, 83-85
interpleader suit, 216-217
kinds of withdrawal and served by newspaper publication, 88
service of, 83
adjustment of, 200-202
mode of personal service, 85
non-joinder of a proper party,
effects of, 73 first mode, 86-87
second mode, 87-88
non-joinder of party, effect of, 72-73
notice under S. 80, 211 substituting service, 85-86
writ of, 88
objection, as to over-valuation and under
valuation of, 55-56 Supplemental proceedings
objecion, as to place of suing, 52 arrest before judgment, 189
of all other kinds (s 20), 38 attachment before judgment, 191-193
of plaint in a suit for specific compromise, 203-205
performance, 33 temporary injunction, 193-197
place where wrong is committed, 40 withdrawal ofsuits, 200-202
points of distinction berween sections 16,
17 and 20 of the code and clause 12
T
of theletterspatent, 51 Transfer of Property Act 1882, 1
procedure, in case of misjoinder of parties W
and cause of action, 71
Writ Petitions, 63
provision for stay of, 232-234
withdrawal of, 200
relating to Wills, intestacy and
succession, 215 Written Statement
remedies for suits on contracts, 31-32 counter claim, 93-95
restitution of, 235-236 in suit for specific pertormance, 96
rules relating to non-aPpearance inspection of, 88
of parties at the hearing non-compliance with order for, 96-97
of, 167 set-off, 91-93
Mulla The Key to Indian Practice is an acclaimed classic that contains a summary of the
provisions of the Code of Civil Procedure and provides an overview of the conduct of civil
suits in Indian courts. The book educates students, legal practitioners and consultants about
the practice and procedure in the conduct of suits in and out of court. Every important
section of the Code has been noted in its appropriate place, thus making the work useful
not only as a guide to Indian Practice, but also as a readable summary of the Code best
suited to the requirements of legal professionals, those with experience as well as new
entrants to the field of law.
New to theEdition
Latest Supreme Court and High CourtsJudgments
Contemporary topics that have emerged during the progress of this work
have also been incorporated. Some of these relate to trust beneficiary,
mortgage redemption, non-maintainability of separate suits
The provisions of the Code of Civil Procedure, 1908 have been concisely
discussed in a systematic manner with an attempt to co-relate the chapters
aiming to make the reading interesting
Key Features
Covers how the course of an ordinary suit is followed, from the moment the plaintiff
determines to sue till the time he obtains a decree
Elaborates in detail the critical process of execution of a decree and the possible
consequences of an appeal by an affected party
Employs the explanatory method of treatment enabling advocates not only to understand
the provisions of the Code, but also to see how these provisions are applied in practice
Revised and updated thoroughly to include latest judgments and case laws
6bIt's Mulla, its the best there is, be it contracts or transfer of property or specific relief.
Being in the final year of law, you're always on the look out for a book which is a
one-stop access to the whole subject in a semester. This book helps in giving you a
clear understanding of an otherwise passive statute.99
t is a thin volume written in the most precise and lucid form explaining all the basics
of CPC. Its an indispensable book for students as well as practicing lawyers. It can
also be called CPC for dummies.9
- Reader
Justice Surya Kant is a Judge in the Punjab & Haryana High Court since 2004. He also held
the office of Advocate General, Haryana, from 2000 till he was elevated as a Judge. He has
also served as a Member of the National Legal Services Authority for two consecutive
terms from 2007 to 2011
ISBN 978-93-5143-703-1
LexisNexis 9ll789351l437031l
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MULLA

SIR DINSHAW FARDUNJI MULLA

Praise for the earlier edition

About the book

Justice Surya Kant

New Delhi Vinay Kumar Gupta

New Delhi Vinay Kumar Gupta

Ahmedabad Umesh D Shukla

Prefacetothe Ninth Edition

Preface to the Seventh Edition x

2.2 Jurisdiction t.F 8

3.4.3 Reliefs in Suits on Mortgage 32

3.5 Plaint in Suit for Specific Performance 33

4.10.2 Waiver of Objection to Territorial or Pecuniary Jurisdiction 54

CHAPTER 6 Steps in a Suit

7.1.1.2FormoftheAffidavitin Answerbaot lee leonii o0o

8.1 First Hearing and Settlement ofIssues [Order X; Order XII,

"Passing of more than one preliminary or final decree 134

9.1.1 Application for Execution 9T 144

9.1.3 Against Whom Execution may be applied for 144

9.1.4 Notice Before Issuing Process 144

9.1.5 Mode of Execution 145

9.1.6 Execution againstPerson of Judgment-Debtor 146

9.1.6.5 Period of Detention andRelease U 147

9.5 Execution against Property of Judgment-debtor 149

9.6 Disposal ofSale-proceeds 151

9.7 Resistance to Delivery of Possession to Purchaser 152

9.10 Questions to be Determined by Court Executing Decree 153

9.11 Procedure 154

Execution of"Cross-Decrees" 154

10.2 Court of Appeal 158

10.6 Notice of Day for Hearing Appeal 161

10.7 Cross-appeal and Cross-objections 161

10.8 Hearing of the appeal 163

(A) Supplemental Proceedings

13.1 Arrest and Attachment before Judgment 189

14.8 Service of Summons, Appearance, Etc. 215

14.16.2 Suit by a Firm 221

14.19.2 Stayof Suit 232

APPENDIX City Civil Courts and their Jurisdiction 249

Civil procedural law is an indispensable instrument for the atainment of justice

4. Dr WhitleyStoke'sAnglo-IndianCodes,vol. Il, pp. 380-86.

The Code of 1882 contained 49 chapters, each chapter consisting of several

6. SalemBarAssociationandothersv. Union of India andothers, (2005) 6 SCC 344. .

extended or restricted by legislatures. For instance, the Code applies to proceedings

(i) the First Schedule containing O. I to O. LI and rules thereunder. While

18. Code of Civil Procedure 1908, s. 151.

2.1 CONSTITUTION OF COURTS

the parties to the suit.

A decree passed by a court without jurisdiction is a coram

"Lack of Jurisdiction and Irregular exercise of Jurisdiction"

The 'existence' of jurisdiction and 'exercise' of jurisdiction are not synonymous. A

10. Kiran Singh v. ChamatPasuwan, AIR 1954 SC 340.

"irregular exercise of jurisdiction" as compared to a decision where its jurisdiction is

2.2.1 Original and Appellate Jurisdiction

16. Ityavira Mathai v. Varkey Varke, AIR 1964 SC 907

2.2.2 Jurisdiction as Regards Local Limits, Pecuniary Limits, and

19. See ch. 4; under el. 12 of the Charter

Further, the forum of appeal, as far as the pecuniary jurisdiction is concerned, is

It is not proposed to go into the exhaustive details of hierarchy of courts or their

2.2.3 Ordinary Original and Extraordinary Original Civil Jurisdiction

. Abdulla Bin Ali v. Galappa, AlR 1985 SC 577.

2.3.1 Courts in Presidency Towns