CPC

FUNDAMENTAL RULES OF PLEADING:

Pleadings form the foundation for any case in the court of law. It is a statement in
writing filed by the counsel of the plaintiff stating his contentions on the case, based
on which the defendant shall file the written statement defending himself and
explaining why the plaintiff’s contentions should not prevail. Sometimes the plaintiff,
having filed his sorrow, may, with the leave of the court, file a statement or the court
may require him to file a written statement. The written statement forms part of the
plaintiff’s pleadings in such cases. Similarly, there are cases in which the defendant
having filed his written statement may, with the leave of the court, file an additional
written statement or the Court may require him to do so. The additional written
statement forms part of the defendant’s pleadings in such cases. This is the first
stage of a suit.
Code of Civil Procedure (CPC) in order 6, Rule 1 defines pleadings as a written
statement or a plaint. The plaintiff’s written statement and the defendant’s
additional written statement are termed supplemental pleadings.

Objective of pleading

The whole objective behind pleading is to narrow down the issues and provide a
clear picture of the case thereby enhancing and expediting the court proceedings.
The pleadings help both parties know their point of dispute and where they differ to
bring forth the relevant arguments and evidence in a court of law.

Rules of Pleadings

The four words that can crisply summarize the rule of pleading is ‘Plead facts, not
law’. Both parties' counsel should only project the facts in their respective case
rather than suggesting the laws applicable in the particular case.

1) Basic or Fundamental Rules

2) Particulars or other rules

Basic or Fundamental Rules

Basic or Fundamental Rules are discussed in the sub-rule (1) of Rule 2 of Order VI
of the Code of Civil Procedure, 1908. Summarizing the provision, the basic rules of
pleadings are the following:

Facts should be pleaded upon and not the law

This was first held in the case Kedar Lal v. Hari Lal where it was held that the parties
are under the duty to state the facts on which they are claiming their compensation.

Material facts should be pleaded

The second basic rule is to present facts which are material only. Immaterial facts
shall not be considered. The question arose in the court of law what is the actual
scope of ‘material facts?

Evidence should not be included while pleading

It says that pleadings should contain a statement of material facts on which the party
relies but not the evidence by which those facts are to be proved.

There are two types of facts:

 Facts probanda: the facts which need to be proved, i.e material facts
 Facts probantia: facts by which a case is to be proved, i.e evidence
Only facts probanda should form part of pleadings and not facts probantia. The
material facts on which the plaintiff relies for his claim or the defendant relies upon
his defense are called facta probanda, and they must be stated in the plaint or the
written statement, as the case may be.

Particulars or other rules

1. Particulars with dates and items should be stated wherever fraud,

misrepresentation, breach of trust, undue influence, or willful default are
pleaded in the pleadings.
 2. Generally, departure from pleading is not permissible, and except by way
of amendment, no party can raise any ground of claim or contain any
allegation of fact inconsistent with his previous pleadings.
3. Non-performance of a condition precedent should be specifically
mentioned in the pleadings. Performance of the same shall not form a part
of the pleadings since it is already implied.
4. If the opposite party denies a contract, it will be held as a denial of the facts
of the contract and not its validity, enforceability, and legality.
5. Wherever malice, fraudulent intention, knowledge, or other condition of
the mind of a person is material, it may be alleged in the pleading only as a
fact without setting out the circumstances from which it is to be inferred.
6. Every pleading should be signed by the party or one of the parties or by his
pleader.
7. A party to the suit shall provide with his and the opposite party’s address.
8. Every pleading needs to be approved by making an affidavit by the party
or a person who is acquainted with the facts stated in the pleading.
9. A pleading may be ordered to be struck out by a court of law if it feels the
same is scandalous, frivolous, unnecessary, or intended to embarrass,
prejudice, or delay a fair trial in the court.
10. Amendment of pleadings shall be allowed by the court
11. The pleadings shall be divided into proper paragraphs whenever required,
consecutively numbered, and structured properly. Every argument or
allegation must be in separate paragraphs. Dates, sums, and any totals
shall be expressed in figures as well as in words to maintain clarity for the
judge as well as the parties concerned in the trial.

Amendment of Pleadings

Rules 17 and 18 of Order VI of the Code of Civil Procedure, 1908 deal with an
amendment of pleading. These provisions aim towards achieving justice in the
society. Rule 17 of the Code of Civil Procedure, 1908 provides either party may be
ordered to amend or alter his pleading at any stage of the proceeding in such
manner that shall be fair and just and allow amendment when necessary to
determine the exact controversial question between the parties.

On the other hand, Rule 18 deals with the issue of failure to amend the pleading. It
deals with the law that if the court orders a party to make necessary and if he fails to
do the same within the given time limit given by the order or if no time is limited
then within 14 days from the date of the order, he shall not be permitted to amend
after the expiration of such limited time as aforesaid or of such 14 days, as the case
may be, unless the time is extended by the Court.

#General Meaning of the Limitation Act, 1963

Limitation means to limit something a restriction, or circumstances which are

limited. In other words, limitation is the act of limiting something or circumstances
which restrict something.
Limitation Act is the Act that prescribes the time limit or period of limitation for
certain suits in civil matters so that the aggrieved party may apply within the limited
time provided to them to file a suit or approach the court for justice.

Need for the Limitation Act

Suppose the plaintiff’s rights have been infringed in some way or his property is

acquired by another person. In such cases, the plaintiff must always have a right to

go to court to enforce his rights. But it does not mean that the plaintiff can enforce

his right at any period, say 20 years or 30 years or more.

With time, the memory of human beings fades away, the necessary documents might

get lost, the witnesses might be dead, and the basic facts of the matter might be

forgotten. Therefore, there is a higher probability that such evidence might get lost.

Hence, due to the lack of such necessary documents and evidence, there came a need

to bring an Act known as the Limitation Act.

Purpose of the Limitation Act

The principal maxim Interest reipublicae ut sit finis litium means, ‘the interest of

the state requires that there should be the end of litigation.’ This means that the

purpose of the Limitation Act is to end litigation and ensure justice.

Therefore, the Limitation Act is the Act that puts a bar (limit) on going to a court of

law. It is based on the well-accepted principle of jurisprudence and public policy.

Hence the object of the Limitation Act is to provide a legal remedy to repair the

damage caused by legal injury, but such a legal remedy can only be enforced when

it is claimed within the time provided in the Act.

Salient Features of the Limitation Act, 1963

These are the salient (most noticeable or important) features of the Limitation Act:

1. Exhaustive Law: The Limitation Act is an exhaustive law concerning all the

matters expressly provided in it. It is complete in itself.

2. Adjective Law: The Limitation Act is an adjective law. Being an adjective law, it

provides for both the substantial and procedural features of any statute. But it is

more of a procedural law.

In A.S.K. Krishnappa Chettiar & Ors. Vs. S.V.V.Somiah & Ors, AIR 1964 SC 227,

the Supreme Court noted that the Limitation Act is a piece of adjectives

or procedural law and not substantive law.

Only applicable to civil cases: The Limitation Act applies only to civil matters
Extra knowledge: But in CrPC, the limitation period may range from 6 months to 3

years. The evidence can become redundant after a point of time and might get lost

due to old claims, which fades away the reliability of such evidence, for example,

blood-stained knife, victim’s clothes, etc.; therefore, there is a limitation period in

criminal cases until and unless the contrary is mentioned in the law itself. But if the

court finds merit in the case, then they can breach the limitation period and accept

the case. Cases that have a punishment of more than three years do not have a

limitation period.

4. Prospective as well as a retrospective effect: Section 31 of the Limitation

Act provides for the retrospective and prospective effect of the Act.

5. Only applicable to suits, appeals, and applications: Section 3 of the Limitation

Act provides for the bar of limitation, which means that the Limitation Act only

applies to suits, appeals, and applications.

Leading Case Laws Related to the Limitation Act

Bombay Dyeing and Manufacturing Company vs the State of Bombay (1957): In

this case, the court held that the limitation bars the remedy and does not extinguish

the right. Thus, the lapse of time does not extinguish the person’s right.

Sri Kishan Lal vs Musammat Kashmiro And Ors (1913): In this case, it was held

that the law of limitation does not bar a defense but only bars action.

#RES-JUDICATA AND ITS ESSENTIAL:

In order to prevent needless waste of judicial time and energy, it is critical to ensure
litigants do not overburden courts with redundant and duplicative proceedings.
There are several legal doctrines aimed at that important preservation, most notably,
“res judicata.”

The doctrine, which derives from the Latin of “a matter judged,” is designed to
prohibit parties from relitigating a claim or a defense of something that has already
been decided. The idea is meant to ensure the finality of judgments and conserve
judicial resources. Additionally, the repeated litigation of an already adjudicated
matter is generally not in the public’s best interest.

Conventional wisdom says one judicial contest should be enough for litigants to
make their claims or mount a defense. This is critical as the amount of judicial work
has increased in recent years.

What are the three elements of res judicata?

Res judicata has three general elements: re-litigation, same cause of action, and
same or closely related parties.

Re-litigation

Res judicata prevents a party from bringing a claim once that particular claim has
been subjected to a final judgment in some previous lawsuit. Re-litigation applies to
a new lawsuit brought in any court, not just the one responsible for earlier judgment.
This piece of res judicata is considered the most straightforward of the doctrine.

Same cause of action

Similarly, res judicata prevents a party from bringing the same claim or cause of
action against the defendant once a final judgment has been made. The term ‘claim’
is the legal demand for compensation, while ’cause of action’ is the set of elements
that allow for legal remedy.

Same or closely related parties

Th e Same Par ti es, or Closely Related Par ties
Wh en the parties to a lawsu it are in div iduals, it is usuall y easy to
determine wh en a new lawsu it inv olv es th e same part ies. Res
ju dicat a can al so bar lawsuits by a person or ent it y “in priv ity with ”
a part y to th e ori gi nal lawsu it , as th e Cal if or ni a Su p reme Co ur t pu t it.
Th is may incl ude any one act in g as an ag ent for the original pl aintiff ,
or a su bsidiar y of a co rpo rate plain tif f . Th e same go es fo r def en dants,
su ch as wh en an unsuccessf ul pl aintiff tr ies to br in g th e same cl aims
ag ainst a subsidiary of the def en dant or ano th er cl osely rel ated
ent ity.
Excepti ons to Res Judi cata
Cou rts have identif ied several situ ations in wh ich res ju dicat a wou ld
not pr ev ent a new lawsu it. Th ey mostl y address th e manner in which
a claim was dismissed, and they inclu de:

 Dismissal of a cl aim fo r lack of ju risdiction or improper venue;

 Vo lunt ary dismissal of a claim by a pl aintiff ;
 Dismissal fo r want of prosecu tion ;
 Dismissal witho ut preju dice, wh ich often expressly states th at a
pl aintiff may refil e if they co rrect cert ain defects or errors in
their pl eading s; and
 Failure to jo in a part y under a mandator y joinder rule.
Th e ju risdictio n issue can be part icu larl y con fu sing when it inv olv es
lawsu its in bo th state and feder al co urt s. A Calif ornia appellate co urt
addressed this ch alleng e in a 2018 ru ling . The pl aintiff filed su it
ag ainst an ag ency of the State of Calif ornia in federal cou rt, asserting
cl aims under both feder al and st at e laws. Th e U.S. District Cou rt
dismissed his st at e law claims for lack of su bject matt er ju risdictio n
under the Elev en th Amendment .
Th e pl ain tiff filed a new lawsuit in stat e co urt, asserting the same
cl aims that the feder al co urt had dismissed. Th e st at e appellate co urt
held that res ju dicat a did no t pr ecl ude tho se claims, essen tially
becau se the dismissal in federal cou rt was no t based on the merits of
the cl aims.

#SUMMONS, ITS ESSENTIAL ELEMENTS AND VARIOUS MODES OF SERVICE OF

SUMMONS:

The Code of Civil Procedure, 1908 (CPC) defines "summons” as a legal document
issued by a court to notify a defendant (the person against whom a lawsuit is filed)
that a case has been filed against them and to appear before the court on a specified
date and time.

According to Section 2(9) of the CPC, a "summons" includes any document used by a
court to give notice to a person for his attendance. It can be in the form of a writ,
notice, order, or other legal processes.
The purpose of a summons is to ensure that the defendant is given adequate notice
of the legal proceedings initiated against him and is given an opportunity to be
heard in the matter.

Essentials of Summons

 As per Order V Rule 1, the following are the essential conditions for a service
of summons under CPC –
 It should be in writing.
 It should be in duplicate form.
 It should be signed by the presiding officer of the court or such other officer
authorized by the High Court.
 It should mention the time and place of the rule directed.
 It should bear the seal of the court.
 As per the order of the Gujarat High Court, the issuance of a summons is a
condition precedent to the making of an order. The mere making of an order
for the issuance of summons is quite different from the issuance of summons.

Types of Summons

Majorly, there are three types of summons that are issued under the law:

Civil Summons

These summons are issued in a civil case under CPC to the defendant to appear in
court. It is a way of informing the defendant that a case has been issued against him
or her in court. It is mainly served in cases of breach of contract, damage suit,
injunction orders, or loss of goods, etc.

Criminal Summons

A summon issued to a person to appear in the criminal court under the Criminal
Procedure Code is called a criminal summons. In the criminal summons, the court
will mention the charges and facts based on which the summon has been issued.

Administrative Summons

The administrative bodies send these when we fail to abide by the law. Tax authority
or labor court summons is the main administrative summons issued by the law.

Substituted service of summons

It is an exception to the normal way of giving summons under CPC. To issue a

substituted service of summons the court should be satisfied that there is enough
evidence to believe that the defendant is intentionally keeping himself away from
serving the summons, so there needs to be another way in which summon shall be
served.
Procedure to serve Summons

The procedure to serve a summons is as follows:

A summon has to be prepared considering all the essentials;

The summons should be served by the persons authorized and if possible,
personally;
 A duplicate copy should be provided to the person summoned;
 The person summoned shall sign the receipt on the back of the duplicate
copy.
Summons by Post

A summons can also be served by a registered post, even when the postman is
serving the summons and the witness refuses to accept, the acknowledgment by the
postman would be evidence that the summons is served.

Summons on Corporate bodies and societies

Corporate persons who are authorized to receive such summons:

Secretary
Local manager / Principal officer of the corporation
The chief officer of the corporation.
Summon on a government servant

Where the person summoned is in the active service of the Government, the Court
shall send it in duplicate to the head of the office in which such person is employed
and that head will serve the summon and shall return it to the Court under his
signature with the endorsement required by that section.

The procedure of trial of Summons Cases by Magistrates

 If the case appears, then the magistrate has the authority to issue a summons.
 No summons can be filed until the list of prosecution witnesses has been filed.
 If the complaint has been made in a written format, then a copy should be
attached to the summons.
 The Magistrate also has the power to dispose of the attendance or enforce it if
required.
 Suppose the proceeding is based on a police report. In that case, the
magistrate shall provide a copy of that police report, first information report
(FIR), witness statements, confessions, and statements (if any), and any other
document or relevant extract that was provided to the Magistrate with the
police report.

What is Plaint in CPC?

Plaint is a legal document that contains the plaintiff's claim presented before a civil
court of competent jurisdiction. It is a pleading of the plaintiff and the first step
taken for the institution of a suit. Now, what all is comprised within a plaint? The
contents and essentials of the civil suit are laid out in a plaint, including the
plaintiff's claim. It showcases the grievances of the plaintiff & the causes of action
that can arise out of the suit. It hasn't been defined in the CPC, but it has been laid
down under Order VII of the CPC.

Particulars of A Plaint

 Name of the court where the suit is initiated.

 Name, place, & description of the plaintiff's residence.
 Name, place, & description of the defendant's residence.
 A statement of unsoundness of mind or minority in case the plaintiff or the
defendant belongs to either of the categories.
 Facts which led to the cause of action and when it arose.
 Facts which point out the jurisdiction of the court.
 The plaintiff's claim for relief.
 The amount allowed or relinquished by the plaintiff just in case.
 A statement containing the value of the subject matter of the suit as admitted
by the case.

 #Procedure For Admission Of The Plaint:

When the court serves the summons for the defendant, according to Order V,
Rule 9, the plaintiff must present copies of then plaint according to the
number of defendants, and should also pay the summons fee, within seven
days of such a summons.

The Particulars Of A Plaint Can Be Divided Into Three Important Parts

Such As Heading And Title, Body Of The Plaint, And Relief Claimed.
Heading And Title:

Name Of The Court:

The name of the court should be written as the heading. It is not necessary to
mention the presiding officer of the court. The name of the court would be
sufficient. Eg. In the Court of District Judge, Kolkata.

Parties to The Suit:

There are two parties to every suit, the plaintiffs and the defendants. For the
purpose of the suit, the name, place, and description of the residence of both
the plaintiffs and the defendants have to be mentioned in the particular plaint.

When there are several plaintiffs, all of their names have to be mentioned and
have to be categorically listed, according to their pleadings, or in the order in
which their story is told by the plaintiff.
 

Minors cannot sue nor can be sued. So, if one of the parties is a minor or of
unsound mind, it will have to be mentioned in the cause title.

 Title Of The Suit:

The title of the suit contains the reasons for approaching the court and the
jurisdiction before which the plaint Is initiated.

Body Of The Plaint

This is the body of the plaint wherein the plaintiff describes his/ her concerns in an
elaborative manner. This is divided into short paragraphs, with each paragraph
containing one fact each. The body of the plaint is divided into two further parts
which are:

Formal Portion:
The formal portion contains the following essentials:

1. A statement regarding the date of cause of action. It is necessary for every

plaint to contain the date when the cause of action arose. The primary
objective behind this is to determine the period of limitation.
2. There should be a statement regarding the jurisdiction of the court. The plaint
must contain all facts that point out the pecuniary or territorial jurisdiction of
the court.
3. The value of the subject matter of the suit must be stated properly in this part
of the plaint.
4. Statement regarding minority.
5. The representative character of the plaintiff
6. The reasons why the plaintiff wants to claim exemptions under the law if the
suit is initiated after the period of limitation.

Substantial Portion:

I. This portion of the plaint must contain all the necessary and vital facts, which
constitute the suit. If the plaintiff wishes to pursue a course of action on any
other grounds, such grounds must be duly mentioned.
II. It should be shown in the plaint that the defendant is interested in the subject
matter and therefore must be called upon by the court.
III. If there is more than one defendant, and if the liability is not joint, then the
individual liability of each and every defendant must be shown separately.
IV. In the same way, if there is more than one plaintiff, and their cause of action is
not joint, then too, the same has to be mentioned separately.
Relief:
The last part of the plaint is the relief. The relief claimed must be worded properly
and accurately. Every plaint must state specifically the kind of relief asked for, be it
in the form of damages, specific performance or injunction or damages of any other
kind. This has to be done with utmost carefulness because the claims in the plaint
cannot be backed by oral pleadings.

Signature and Verification:

I. The signature of the plaintiff is put towards the end of the plaint. In case the
plaintiff is not present due to any legitimate reason, then the signature of an
authorized representative would suffice.
II. The plaint should also be duly verified by the plaintiff. In case the plaintiff is
unable to do so, his/ her representative may do the same after informing the
court.
III. The plaintiff has to specify against the paragraphs in the pleadings, what all
he/ she has verified by his/ her own awareness of the facts, and what has
been verified as per information received, and subsequently believed to be
true.
IV. The signature of the plaintiff/ verifier, a Where the language of the plaint is
beyond the comprehension of the plaintiff, the same has to be translated, or
made known to the plaintiff, and only after that can he/ she put his/her
signature and get the plaint verified by the Oath Commissioner.

Return Of Plaint
Order VII, Rule 10 states that the plaint will have to be returned in such situations
where the court is unable to entertain the plaint, or when it does not have the
jurisdiction to entertain the plaint.

The courts can exercise the power of returning the plaint for presentation before the
appropriate court if it feels that the trial court itself did not have the appropriate
jurisdiction in the first place.

Once the appellate court finds out that the trial court decided on the civil suit
without proper jurisdiction, such decision would be nullified.

Dismissal Of Suit
If the plaint is to be returned to the parties after its rejection, the court has to fix a
date for the same where the parties can arrive for this purpose.

This was mentioned in Rule 10, inserted by the amendment act of 1976. If the court
does not have the adequate jurisdiction, the proper course is to return the plaint and
not to dismiss it.

When Can a Plaint Be Rejected?

I. A plaint can be rejected under the following scenarios

II. Where the cause of action is not disclosed
III. When the relief claimed by the plaintiff is undervalued, and he/ she is not
able to correct it even after being instructed by the court to do so.
IV. When the relief claimed is proper, but the plaintiff proceeds with the plaint on
a paper which has not been stamped sufficiently and fails to do so even after
the court's instruction.
V. Where the suit stems from a statement which has been essentially barred by
law


Conclusion
A plaint is important in the sense that it is the first and foremost step towards
instituting the suit. Therefore, due care has to be taken to ensure that the
procedure required for the initiation of plaint has been duly recognized.

It is mandatory to follow protocol by stating the relevant facts, the necessary

details, refrain from providing evidence and mention the kind of relief
envisaged so that the plaintiff is duly benefited.

WRITTEN STATEMENT:
A written Statement is nothing but a reply from the defendant to the plaint led by
the plaintiff. it is the pleading of the defendant where he deals with the material fact
alleged by the plaintiff in his plaint and also elucidates any new fact favoring him or
taking legal objections against the plaintiff's claims in the plaint. In a written
statement defendant can deny the allegations made in the plaint against him. Apart
from this, he can also claim to set off any sums of money payable by the plaintiff to
him as a counter-defense (Order 8 Rule 6). On the other hand, if the defendant has
any claim against the plaintiff concerning any matter in the issue raised in the plaint,
he can separately file a counter-claim alongside his written statement (Order 8 Rule
6A to 6G)
Who may file a written statement?
A written statement may be filed by the defendant or by his duly authorized agent.
In the case of more than one defendant, the common written statement led by them
must be signed by all of them. However, it will suffice if it is verified by one of them
who is aware of the facts of the case.

The time limit for a written statement

A written statement must be filed within thirty days from the service of the
summons on him. The said period can be extended up to ninety days.

Set off (Order VIII, Rule 6]

Definition:
Where in a suit by the plaintiff for recovery of money and the defendant finds that he
also has a claim of some amount against the plaintiff what he does is he can claim a
set-off in respect of the said amount. This right of the defendant to claim set off has
been recognized under Order 8, Rule 6 of the Code.

Essential Conditions:

I. A defendant may claim a set-off, if:

II. The suit is for the Recovery of money;
III. The sum of money must be ascertained;
IV. Such sum must be legally recoverable;
V. It must be recoverable by the defendant or by all the defendants, if not more
than one;
VI. It must be recoverable by the defendant from the plaintiff(s);
VII. It must not exceed the pecuniary jurisdiction of the court in which the suit is
brought;
VIII. Both the parties must fill in the defendant's claim to set-off, the same
character as they fill in the plaintiff's

Effects:
When a defendant claims set-off, he is put in the position of the plaintiff as regards
the amount claimed by him. Where the plaintiff doesn't appear and his suit is
dismissed or he withdraws, it does not affect the claim for a set-off by the defendant
and a decree may be passed in his favor if he is able to prove his claim.

Illustrations:
X sues Y on a bill of exchange. Y alleges that X has wrongfully neglected to ensure Y's
goods and is liable to him in compensation which he claims to set-off. The amount
not being ascertained cannot be set-off.
P sues Q on a bill of exchange for Rs. 1500. Q holds a judgment against P for Rs.
1,000. The two claims being both definite, it may be set-off.

Types of Set-Off
Set-off is of two kinds viz., legal set-off and equitable set-off. Rule 6 speaks of legal
set-off only. In contrast to legal set-off, an equitable set-of, can be claimed for
unascertained money but it must arise from the same transaction. For example,
where a servant sues his master for recovery of an amount of salary, the master can
claim set-off for loss sustained by him due to negligence of servant since it arises out
of the same relationship.

Legal Set Off

It is apparent from a reading of the above provisions that to constitute a legal set-off,
the following conditions must be fulfilled, viz.,

a. The suit must be for the recovery of money.

b. The defendant must claim an ascertained sum of money. A sum of money due
in respect of a disputed transaction cannot constitute an ascertained sum.
c. That ascertained sum must be legally recoverable from the plaintiff, i.e., it is
not barred by the law of limitation.
d. The plaintiff's claim and the set-off must be claimed in the same character.
The amount must be recoverable by the defendant and if there are more than
one defendant, then by all the defendants. Again, the amount must be
recoverable by the defendant from the plaintiff, and if there is more than one
plaintiff, then from all the plaintiffs.
e. The set-off should be within the pecuniary jurisdiction of the Court.

Equitable set-off
Court of Equity in England allowed set-off when cross-demands arose out of the
same transaction, even if the money claimed by way of set-off was an unascertained
sum of money. The Common Law Courts refused to take notice of equitable claims
for they were not ascertained sums. The Courts of Equity, however, held that it
would be inequitable to drive the defendant to a separate cross-suit and that he
might be allowed to plead a set-off though the amount might be unascertained. Such
a set-off is called an equitable set-off.
Counter Claim
Rule 6A to 6G of Order 8 deals with counter-claim. It is claim made by the defendant
in a suit against the plaintiff. It is a claim independent of and separable from the
plaintiff's claim which can be enforced by a cross section. Counter-claim can be set
up in respect of action accruing to the defendant either before or after the filing of
the suit but before the defendant has delivered his defense or before the time fixed
for delivery of his defense has expired.

Such a claim should not exceed the pecuniary limits of the jurisdiction of the
concerned court. The counter-claim is to be treated as a plaint and the plaintiff can
file a written statement in answer to it. Counter-claims can be filed after the filing of
the written statement.

In Smt. Shanti Rani Das v. Dinesh Roy it has been held that the right to file a
counterclaim is referable to the date of accrual of cause of action. If the cause of any
such action had arisen before or after the filing of the suit, the cause of action
continued up to the date of filing of the suit and such cause of action continued up to
the date of filing written statement or extended date of filing plaintiff statement,
then such counterclaim can be filed even after filing the written statement.

Who may file a counterclaim?

Normally, it is the defendant who may file a counterclaim 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 solely against co-defendants is not
maintainable.

When counterclaim be set up?

A counterclaim may be set up by a defendant against a plaintiff in respect of cause of
action accruing either before or after the filing of the suit, provided such claim is not
barred by limitation.

Effect of counterclaim Such counterclaim has the effect of a cross-suit and the court
can pronounce a final judgment both on the original claim and the counterclaim. The
counterclaim of the defendant will be treated as a plaint and the plaintiff has a right
to file a written statement in answer to the counterclaim of the defendant.

The effect of the counterclaim is that even if the suit of the plaintiff is stayed,
discontinued, dismissed or withdrawn, the counterclaim will be decided on merits
and the defendant will have a right to get a decree for a counterclaim as claimed in
the written statement. If the plaintiff does not file any reply to the counterclaim
made by the defendant, the court may pronounce the judgment against the plaintiff
in relation to the counterclaim made against him or make such order in relation to
the counterclaim as it thinks fit.268 The counterclaim shall be treated as a plaint and
will be governed by the rules applicable to plaints. Similarly, a reply filed in answer
to a counterclaim shall be treated as a written statement and governed by rules
applicable to written statements.

Difference between Plaint and Written Statement

S. No. Plaint Written Statement
A legal document stating the A defense statement
1. cause of action and other comprising all material facts
mandatory particulars and other details against the
 supports the plaintiff's claim. plaint is a “written statement”.
It is filed by the plaintiff
It is filed by the defendant as a
2. stating its facts and relief to
reply to the plaintiff's claims.
be claimed by the plaintiff.
It contains name of the court,
it contains all materials and
name, place, and description
other objections that the
of the plaintiff's & defendant’s
defendant might place before
residence, a statement of
the court to admit or deny the
unsoundness of mind, cause
plaintiff's claim.
of action, relief claimed, etc.
A written statement must be
Plaint is the first stage in a filed within 30 days from the
3. civil suit for the institution of date of receipt of the copy of
the suit. the plaint. (extended to 90
days)
A general denial of grounds
Generally, it is divided into
alleged in the plaint is not
parts like- a heading, the
sufficient, and denial has to be
4. cause title, the body, the
specific and must be
prayer, the signature &
substantiated with
verification of the plaintiff.
documentary evidence.
Every allegation of fact in the
Plaint must contain the name,
plaint, if not denied
5. description, and residence of
specifically, shall be deemed to
the defendant.
be admitted.
Order VII of CPC deals with Order VIII of CPC deals with
6.
the plaint. written statements.

#What do you mean by Reference? When can a reference be made by

subordinate court to High Court? Distinguish Reference, Review and Revision.
Reference
Section 113 of Civil Procedure Code deals with the provision of reference. Under the
provision of Section 113, a lower or subordinate court can reach out to higher court
for the doubt in order to avoid the misinterpretation of the law which is called
reference. Parties through an application can move the reference to the High court.
Lower Court can apply the provision of reference Suo-moto in case of any doubt
with respect to any legal provision. The lower court is not bound to refer to the High
Court other than in case of validity of legal provision. It helps the lower court to
avoid the commission of error while pronouncing the judgment. The subordinate
court can use its right to reference in the following situation:

1. In case of any question arising in the court at the time of entertaining the
suit for the validity of any act, rules, order, ordinance, etc.
2. Where the court has the opinion or feels that any provision of the law is
invalid or not in the power of the court (“ultra-virus”).
3. The High Court or Supreme Court must have not made such a question on
the provision of law invalid.
4. The court feels that it is important to take the reference of the high court
for ascertaining the validity of the provisions mentioned in the law before
disposal of any case.
There can be two types of doubts which need to be referred to under this section.

1. In case, doubt has arisen concerning any Act or law, it is mandatory for the
lower court to take the reference or opinion from the High court.
2. However, in case of doubt has come up during proceedings, the lower court
doesn't need to take the opinion of the High Court. The lower court can
Suo-moto refer to the High Court.

Object

The object behind the provisions of Reference is to empower the subordinate court
to obtain the opinion of the High Court in non-appealable cases when there is a
question of law so that any commission of error could be avoided which couldn’t be
remedied later on.

As held in the case of Diwali Bai v. Sadashivdas, the reference must be made before
passing of the judgement of the case.

Conditions for seeking reference

Order 46 of CPC mentions the procedure of making a reference. In order to make a
reference to High Court, subordinate court needs to satisfy the condition mentioned
in Order 46 of the Civil Procedure Code which has been produced as follows:

1. The suit or appeal must be pending before the court while making a
reference and no further appeal from the order of such suit or decree is
lying before the court.
2. The question of the validity of the provision of law must have arisen during
the pendency of the suit i.e. during proceeding of the suit in the court.
3. When such doubt regarding the validity of the provision of law has arisen,
the court must have been entertaining the suit.
While making the reference, the district court can put the case on stay, or it can pass
a contingent order. The subordinate court, after taking into account the opinion of
the high court where such reference has been made, may pass an order or decree.

There are two classes of the question of law on which the subordinate court
may entertain the doubt

1. Questions related to the validity of any Act, Ordinance or Regulations.

2. Any other questions.
Under the second condition, reference is optional but in the first condition i.e., a
question related to any Act, Ordinance or Regulations, reference is obligatory.

Who can apply for reference?

The court of civil judicature can refer the case to the High Court either on an
application made by a party or suo moto. As held in the case of Ramakant Bindal v.
State of U.P, no reference can be made by a tribunal.

Powers and duty of the referring court

A reference can be made in a suit, appeal or execution proceeding pending before
the court only when there is a doubt of law. As held in the case of Banarasi Yadav v.
Krishna Chandra it was held that the question of law about which the subordinate
court is doubtful, must have been called upon in the case for adjudication and it
shouldn’t be a hypothetical question.

Therefore, no reference can be made to a hypothetical question or a point that may

or may not arise in the future. But if the situation arises it may be considered for
reference.

Power and Duty of the High Court

The High has consultative jurisdiction in this context. When reference is sought from
the High Court and while dealing it the High Court is not bound to decide only the
question of law in doubt. As held in the case of S.K. Roy v. Board of Revenue, the
High Court can consider the new aspects of law also if any new aspect arises.

To answer the question for which reference is sought totally upon the discretion of
the High Court as discussed under Order 46 of the Code. The High Court may answer
the question and send the case back to the referring court to dispose of it per the law.
It is also upon the discretion of the High Court to refuse to answer the question and
it has even power to quash it.

Effects of Reference

In the case of L.S Sherlekar v. D.L. Agarwal, it was held that when the reference is
sought from the High Court and the decree is confirmed if the High Court answers
the question in favor of the plaintiff. If the answer of the High Court is against him,
the suit is dismissed.

Rule 3 of Order 46 states the provision that after hearing the parties if the High
Court desires, it shall decide the referred points and transmits a copy of its
judgement to the subordinate court which shall dispose of the case in reference to
said decisions.
Who can apply for reference?

The court of civil judicature can refer the case to the High Court either on an
application made by a party or suo moto. As held in the case of Ramakant Bindal v.
State of U.P, no reference can be made by a tribunal.

Powers and duty of the referring court

A reference can be made in a suit, appeal or execution proceeding pending before

the court only when there is a doubt of law. As held in the case of Banarasi Yadav v.
Krishna Chandra it was held that the question of law about which the subordinate
court is doubtful, must have actually been called upon in the case for adjudication
and it shouldn’t be a hypothetical question.

Therefore, no reference can be made on a hypothetical question or a point that may

or may not arise in future. But if the situation arises it may be considered for
reference.

Power and duty of the High Court

The High has consultative jurisdiction in this context. When reference is sought from
the High Court and while dealing it the High Court is not bound to decide only the
question of law in doubt. As held in the case of S.K. Roy v. Board of Revenue, the
High Court can consider the new aspects of law also if any new aspect arises.

To answer the question for which reference is sought totally upon the discretion of
the High Court as discussed under Order 46 of the Code. The High Court may answer
the question and send the case back to the referring court to dispose of it in
accordance with the law. It is also upon the discretion of the High Court to refuse to
answer the question and it has even power to quash it.

Effects of Reference

In the case of L.S Sherlekar v. D.L. Agarwal, it was held that when the reference is
sought from the High Court and the decree is confirmed if the High Court answers
the question in favor of the plaintiff. If the answer of the High Court is against him,
the suit is dismissed.

Rule 3 of Order 46 states the provision that after hearing the parties if the High
Court desires, it shall decide the referred points and transmits a copy of its
judgement to the subordinate court which shall dispose of the case in reference to
said decisions.

Review
Section 114 of Civil Procedure Code defines the provision of review. In case of
review, the party who is not happy or aggrieved with the order of the court can file
an application for review in the same court which has passed the decree. This
provision has been made so as to facilitate the court to review their own decree or
judgement and rectify the same in case any error has been made while passing the
judgement.

It was held in case of Ram Baksh v. Rajeshwari Kunwar, AIR 1948 AII 213 that the
option of review is still there even if the appeal has been dismissed on any ground.

Object of Review
The procedure of review has been embedded in the legal system to correct and
prevent miscarriage. The review application is not an appeal or revision made to the
superior court, but it is a request to recall and reconsider the decision made before
the same court. If the judge who decided is present in the court, then he alone has
jurisdiction to review the matter decided by him. He is the best to reconsider the
case as he may be able to remember what was argued before him and what was not
mentioned in the case therefore, he alone should hear the review petition.

Grounds of Review
Rule1 Order 47 lays down the grounds on which an application for review of a
judgment is maintainable:

1. On the discovery of new important matter or evidence. Court can review its
judgment. when some new and important matter or evidence is discovered by
the applicant which could not be produced or was not available at the time of
passing the decree.
2. When the mistake or error are apparent on the face of the record then the
court may review its judgment or decree. Error may be a fact or law. In
Tungabhadra industries limited V Government of AP, Supreme court
observed that "a review is by no means an appeal in disguise where by an
erroneous decision is reheard and correct, but lies only for patent error.
3. Other sufficient reason: Any other sufficient reason must mean a" reason
sufficient on grounds specified in the rule" for example where the statement
in the judgment is not correct or where the court had failed to consider a
material issue, fact or evidence etc. So, it could be of any reason which the
court feels sufficient to review its judgment in order to avoid a miscarriage of
justice.
The power of Review is not an inherent Right
It is well settled matter that the power to review is not an inherent power. It is
conferred by law either expressly or by necessary implication. It is the duty of the
court to correct grave and tangible errors committed by it. So, it is empowered to
review and to undo in justice.

Limitation period of Review

 The limitation period for filing an application for review is thirty days

Revision
Sec115 of the CPC 1908 empowers the High court with Revisional jurisdiction. The
dictionary meaning of the world revision is to revise, to look again, to go through a
matter 1 carefully and correctly and correct where necessary.

Object of Revision
The object of Sec 115 is to prevent subordinate court from acting arbitrarily,
unpredictably and illegally or irregularly in the exercise of their jurisdiction. The
power of High court to see that the proceedings of the subordinate court are
conducted in accordance with law and within the bounds of 19 the jurisdiction and
in furtherance of justice.

It enables the High court to correct the error of jurisdiction committed by the
subordinate court. This provision of revision provides an opportunity to the
aggrieved party to get their non appealable orders rectified. Revisional power is
exercised when no appeal lies to the High court. High court can 20 exercised the
revisional power even Suo moto.

Limitation Period

 Limitation period for revision application is 90 days. The ground for revision
will be mainly on jurisdiction.

Highlights:

1. Reference is made by a subordinate court to the High court where there is

doubt regarding the question of law.
2. Review is made by the same court which has passed the decree to rectify the
mistake or error on the record.
3. Revision application is made only to High court when the decree passed by
subordinate court is not in accordance 21 with appropriate jurisdiction.
 #PROVISION FOR ATTACHMENT UNDER CPC.

Every civil suit is accompanied by three stages which starts from the initiation or
institution of suit, adjudication of suit and finally the implementation of the litigation.
The implementation of the litigation is the step in which the results of the
adjudication are put into action, hence this stage is known as the execution. It is the
process of enforcing or giving effect to the order or judgment passed by the court of
justice[1]. It is the enforcement of the decree through the judicial process and allows
the decree holder to benefit from the fruits of the decree passed by a competent
court in his favor.

Execution of the decree, also known as implementation, passed by a court is the

conclusive stage of litigation. The person in whose favor the decree has been passed
is decree holder and against whom it is passed us called judgment debtor. The
judgement debtor is legally bound to satisfy the decree.

Section 51 of CPC lays down following modes of execution of a decree:

 By delivering any property which is specifically decreed.

 By attachment of property
 By arrest or detention in prison
 Or in any other suitable manner

The decree holder is free to choose any one mode of execution of decree. No one can
compel him to choose one or other mode of execution which was held in the case
of V. Dharmavenamma v. C. Subramanyam.

Section 60 lists the property which can or cannot be attached. The following
properties can be attached:

 Land, houses and other buildings.

 Goods, money, bank notes, cheques, Bill’s of exchange, promissory notes,
government securities or other securities of money, debts.
 Shares of a corporation
 All other movable or immovable property which can be sold.

Requirements to attach a property:

 The property can only be attached if the property belongs to judgement debtor or
if judgement debtor has disposing power over such property.
 The property may be in judgement debtor’s own name or held in trust for him by
other person.

The section also lays down the property which can’t be attached.

EXEMTION GIVEN TO AGRICULTURAL LAND

In case the property is an agricultural land which is used by judgement debtor and
his family for personal support, it may be exempted from being attached if the State
government publish an order in that behalf.

According to Section 63 of CPC, if the same property belonging to judgement debtor

has been attached for the purpose of execution of decrees passed by more than one
court; the court which would ultimately receive that property for the purpose of
execution of its decree,

1. Must be a court of highest grade

2. If the courts are of same grade, the court that executed the decree first, will receive
that property for the purpose of execution of the decree. But the proceedings of
other courts will not be invalidated if the property is passed to other court for
execution.

Section 64 prohibits the judgement debtor for transferring his property by way of
sale, lease etc. after the attachment of such property to execute the decree passed by
court. The purpose is to safeguard the interest of decree holder in whose favor
decree has been passed.

But if such transfer is made before attachment, it is not void.

Order XXI deals with mode of attachment of property.

ATTACHMENT OF MOVABLE PROPERTY – Rule 43

To attach a movable property, it is essential that the property is in possession of

judgement debtor and the attachment must be made:

1. by actual seizure
2. After seizure, the property must be kept in the custody of attaching officer.

Such property may be sold if-

 The property is liable to decay within short period.

 The expenses to be incurred on its custody are likely to exceed its actual value.

MOVABLE PROPERTY NOT IN POSSESSION OF JUDGEMENT DEBTOR – Rule 46

If the movable property( belonging to judgement debtor) whose attachment is done

is not in possession of judgement debtor, the person in possession of such movable
 property can be prohibited by the court from transferring the same to judgement
debtor.

ATTACHMENT OF AGRICULTURAL PRODUCE – Rule 44

When the property to be attached is an agricultural produce, its attachment can be

made:

1. by affixing a copy of warrant on such land where the Corp is growing.

2. if the crop has been harvested and gathered, the copy of warrant can be affixed
where agriculture produce is stored.

Another copy of warrant must be affixed

 Where the judgement debtor ordinary resides or

 Where he carries on his business or
 Where he has last resided.

ATTACHMENT OF DEBT- Rule 46

When the attachment is of a debt which is not secured, its attachment can be made
by an order of the court prohibiting the judgement debtor from recovering such debt
until further orders of the court.

However the debtor ( who is indebted to judgement debtor ) may pay his debt to
court so to get absolved from liability.

ATTACHMENT OF SHARE IN CAPITAL – Rule 46

When a share is attached for purpose if execution, the court can prohibit the person
who is owning those share from transferring such shares or receiving the profits
from those shares.

ATTACHMENT OF SHARE IN MOVABLES- Rule 47

If the judgement debtor hold shares in a movable property, court can order him not
to transfer such share.

ATTACHMENT OF IMMOVABLE PROPERTY- Rule 54

If the attachment is of a immovable property, the court can make order to prohibit
the judgement debtor from transferring such property or receiving any benefits
therefrom.

ATTACHMENT OF NEGOTIABLE INSTRUMENTS – Rule 51

Attachment of negotiable instruments like cheque, promissory notes, Bill of

exchange etc. can be made by actual seizure of negotiable instruments and bringing
it to court.
ATTACHMENT OF PARTNERSHIP PROPERTY- Rule 59

Unless the decree is passed against the firm as a whole, partnership property cannot
be attached. However the interest of judgement debtor, who is a partner of a firm,
can be attached.

Who is an Indigent Person?

A person is an indigent person if he does not have sufficient means to pay the fee
prescribed by law for such a suit. Here it is clear that a person may have means for
his livelihood that consist of property that is exempt from attachment in the
execution of a decree and the subject-matter of the suit. So, apart from the subject
matter of the suit and such other property that cannot be attached in execution of a
court decree, an indigent person does not have other property or means to pay for
the prescribed court fees.
However, there may be a case where no such fee is prescribed. In that case, a person
is said to be an indigent person if he is not entitled to property worth one thousand
rupees other than the property exempt from attachment in execution of a decree and
the subject-matter of the suit.
Therefore, a person shall be deemed to be an indigent person if he does have means
exceeding one thousand rupees in value. However, if such a person has property
worth more than a thousand rupees, it is insufficient to pay the fees prescribed by
law. Without any doubt, property that is either the subject matter of a dispute or that
is exempt from attachment in execution of a decree shall not be considered to be
property in his possession for the purpose of determining his status as an indigent
person.
What property should not be considered for the determination of an "indigent
person"?

For the purpose of determining a person as an "indigent person," the property that
is exempt from attachment and the subject of the suit are not to be taken into
consideration.

Inquiry into the Means of an Indigent Person

On an application seeking permission to sue as an indigent person filed by the
plaintiff, a details inquiry is to be conducted by the executive magistrate (SDM) of
his local area to verify details of the property of the indigent person. And a report is
prepared mentioning the details of the plaintiff's property. On the basis of this
report, the court may decide whether the applicant is a suitable person to be
permitted to file a suit as an indigent person. Rule 1A of Order 33 of the Code of Civil
Procedure provides that every inquiry regarding the indigence of the person shall be
made by the chief ministerial officer of the Court unless the Court otherwise directs,
and the Court may adopt the report of such an officer as its own finding or may itself
make an inquiry into the question.

Examination of the Applicant

The court may examine the applicant regarding the merits of the claim and the
property of the applicant to verify the details of the property and his claim given in
the application seeking permission to sue as an indigent person.

Giving an Opportunity to Participate in an Inquiry

The provisions of Rule 6 of Order 33 are intended to give the opposite party
(defendant) an opportunity to participate in the inquiry into indigent status and
adduce evidence to establish that the applicant is not a pauper.

Procedure if Permission Granted

When permission to sue as an indigent person is granted to the plaintiff, his suit
shall be numbered and registered, and the suit shall be proceeded with like an
ordinary suit, except that the plaintiff shall not be liable to pay any court fee.

Withdrawal of Permission to Sue as an Indigent Person

The plaintiff's right to sue as an indigent may be revoked by the court on the
defendant's application; however, the plaintiff has to be given an opportunity to be
heard. The plaintiff's permission to sue as an indigent person may be withdrawn on
any of the following grounds −

That the plaintiff is guilty of vexatious or improper conduct in the course of

the suit;
That he has sufficient means to pay the court fees.
That the plaintiff has entered into an arrangement with any other person to
finance the litigation, and thereafter he will be given a share of the property
 under dispute. The person financing the litigation has sufficient means to pay
court fees.

Assignment of a Pleader to the Indigent

The court may assign a pleader to the indigent person who has not been represented
by a pleader before the court after filing a suit under the provision of Order 33 of the
Code of Civil Procedure, 1908.

Legal Representative for Indigent Person

When an applicant who has filed a suit as an indigent person dies, his legal
representatives are not entitled to continue the suit as an indigent person. The right
to sue as an indigent person is a personal right. Therefore, the entire proceedings
come to an end and lapse the moment the applicant dies.

Realization of Court Fees

The exemption from filing the court fee at the time of institution of the civil suit, as
granted to the indigent person under Order 33 of the CPC, is applicable till the suit is
finally disposed of. However, where an indigent person succeeds in a suit, he shall be
required to deposit the court fee out of the property he received as an outcome of
the suit. The court shall make appropriate directions in the decree itself. The state
government is empowered by law to recover court fees from the indigent person as
per the directions in the decree. Where an indigent person fails in the suit, no court
fees shall be paid by him.

Inherent Powers of the Court Under the Civil Procedure Code

The Civil Procedure Code does not define the term “inherent power“. They are the
powers granted to the court in addition to those expressly granted by the code to
ensure that justice is served and that the court’s powers are not abused. Inherent
powers assist the court in unforeseen circumstances, as it is hard to anticipate all
possible scenarios that may arise in the litigation.
 The Supreme Court observed in Manohar Lal Chopra vs Rai Bahadur Rao Raja
Seth Hiralal (1961) that every court is created to administer justice between the
parties and must be seen to have all such powers as necessary to do the right and
rectify the wrong in the administration of justice.

Inherent powers are implicit in (always to be found in) the court, which may be
exercised by the court to do complete justice between the parties before it.

Section 148 to 153B of the Civil Procedure Code deal with the general powers of the
court. Here’s a breakdown:

 Section 148 and 149 provide for grant and enlargement of time.
 Section 151 preserves the inherent power of the court.
 Section 152, 153 and 153A deal with the amendment in judgements, decrees,
orders and other proceedings.
 Section 153B declares a place of trial to be an open court.

Enlargement of Time – Section 148 CPC

According to section 148 of the Civil Procedure Code, when a period is specified or
given by the court for the performance of an act, that period might be extended by
the court even though the original period has elapsed.

The word ‘may‘ indicates that the power is discretionary, and the court is thus
allowed to consider the behaviour of the party who is requesting the extension of
time.

The notion of equity is embodied in section 148 of the CPC. Because the parties
cannot claim the extension of time as a matter of right, the court may consider all
facts and circumstances, including the applicant’s conduct, before exercising the
power.

Payment of Court Fees – Section 149 CPC

 Section 149 of the Civil Procedure Code authorises the court to allow a party to
make up for a deficiency in court fees due on a plaint, memorandum of appeal or
other documents even after the term of limitation for bringing such suit, appeal, or
other document has expired.

Section 149 of the Civil Procedure Code is a proviso to section 4 of the Court Fees Act,
1870, which states that no document subject to court fees under the Act may be filed
or recorded in any court of justice unless the appropriate court fee has been paid.

The power conferred by section 149 of the CPC is discretionary, and the courts
should exercise it wisely and in the interests of justice.

Ends of Justice and Prevent Abuse of Power – Section 151 CPC

Section 151 of the Civil Procedure Code preserves the court’s inherent powers to
secure the end of justice and prevent the abuse of the process of the court. Under
this section, the court can:

 recall its own orders,

 correct mistakes,
 can set aside ex-parte order passed against the party,
 can issue a temporary injunction in cases not covered in the provisions of Order 39
of the Civil Procedure Code,
 can restore the suit and rehear it on merits,
 review its orders, etc.

In Naresh Shridhar Mirajkar vs State of Maharashtra (1966), the court

concluded that what would meet the ends of justice would always depend upon the
facts and circumstances of each case and the requirement of justice.

The power granted by section 151 of the Civil Procedure Code can be used to
prevent abuse of the court’s process, which can be committed by either the court or
a party.
There is an abuse of process by the court itself when a court follows a procedure
that may result in the miscarriage of justice. A party may be guilty of abuse of
process if it obtains the benefits by practising fraud on the court or by instituting
vexatious tactics.

Amendment of Judgements, Decrees, Orders and Other Records – Section 152,

153, and 153A CPC

All these sections are individually discussed below.

Section 152 CPC

Section 152 of the Civil Procedure Code provides that clerical or arithmetic errors in
judgments, decrees, or orders resulting from any unintentional slip or omission may
be corrected by the court at any time, either suo motu or on the application of any of
the parties.

The section is based on the maxim Actus Curiae neminem gravabit, which
means an act of court shall prejudice no one.

Section 153 CPC

Section 153 of the Civil Procedure Code confers a general power on the court to
amend defects or errors in the suit proceedings and make necessary amendments.

Section 153A CPC

The Amendment Act of 1976 added section 153A to the Civil Procedure Code, which
states that if the appellate court may dismiss an appeal summarily under Order 41
Rule 11, the court of the first instance may use the power of amendment under
section 152 of the Civil Procedure Code.

Limitations of Inherent Power

Even though the inherent powers are fairly broad and residuary in nature, they can
only be used if there are no stated provisions in the code. If there is an express
provision in the code that applies to a specific issue, the court must follow it.

In Ramkarandas Radhavallabh vs Bhagwandas Dwarkadas (1964), the Supreme

Court held that the court must exercise inherent powers in very exceptional
circumstances.

#DECREE:
A decree as defined under Section 2(2) of Civil Procedure Code, is a formal
expression which determines the interest of both the parties in a conclusive manner,
with regards to any disputed matter in a civil suit. Significantly, a decree is a formal
expression of adjudication by which the court determines the rights of parties
regarding the matter in a controversy or a dispute. A set-off or a counterclaim can be
obtained on the decree.
In a suit between A and B wherein A claims that a particular property ‘P’ belongs
him while B claims that the said property belongs to him. After hearing all the
arguments, the court will rule in the favor of either A or B. The final decision of the
court regarding the above claim i.e. whether the property belongs to A or B, is a
decree.

LEGAL REPRESENTATIVE:

Legal representative is a person in law who represents the estate of the deceased
and includes any person who inter meddles with the estate of the deceased and
where a party sues or sued in representative character, the person on whom the
estate devolves on the death of the party so suing or sued. S. 2(11) of CPC.

JURISDICTION:
 Jurisdiction can be defined as the limit of a judicial authority or the extent to which a
court of law can exercise its authority over suits, cases, appeals etc. The rationale
behind introducing the concept of jurisdiction in law is that a court should be able to
try and adjudicate only in those matters with which it has some connection or which
fall within the geographical or political or pecuniary limits of its authority.
A 1921 Calcutta High Court judgment in the case of Hriday Nath Roy v. Ram
Chandra sought to explain the meaning of the term ‘jurisdiction’ in a great detail.

Foreign Judgement
 Section 2(6) of the Code of Civil Procedure, 1908 (CPC) defines foreign Judgement.
It states that foreign Judgement means the Judgement of a foreign Court.
 As per Section 2(5) of CPC, a foreign Court means a Court situated outside
India and not established or continued by the authority of the Central
GovernmPent.