Order 1 to 21 of the Code of

Civil Procedure, 1908 : learning

the basics of civil procedure
This article is written by Oishika Banerji from Amity Law School, Kolkata. This article
deals with Order 1 to 21 of the Code of Civil Procedure, 1908.

Table of Contents
• Introduction
• Order 1 to 21 of the Code of Civil Procedure, 1908
o Order 1: Parties to Suit
o Order 2: Frame of Suit
o Order 3: Recognized agents and pleaders
o Order 4: Institution of suits
o Order 5: Issue and service of summons
o Order 6: Pleadings generally
o Order 7: Plaint
o Order 8: Written statement, set-off, and counter-claim
o Order 9: Appearance of parties and consequences of non-appearance
o Order 10: Examination of Parties by the Court
o Order 11: Discovery and inspection
o Order 12: Admissions
o Order 13: Production, impounding, and return of documents
o Order 14: Settlement of issues
o Order 15: Disposal of the suit at the first hearing
o Order 16: Summoning and attendance of witnesses
o Order 17: Adjournments
o Order 18: Hearing of the suit and examination of witnesses
o Order 19: Affidavits
o Order 20: Judgment and decree
o Order 21: Execution of decrees and orders
• Conclusion

Introduction
The Code of Civil Procedure,1908 governs the procedure of the Courts of Civil
Judicature. A Code, as defined under Section 2 (1) of the Code of Civil Procedure,
1908, is generally a set of rules that regulates the locomotion of a case in a court.
The Code of Civil Procedure, 1908 being a procedural law by nature administers civil
proceedings in the Indian territory and therefore is recognized as a Code. The Code
is made up of 158 sections comprising the substantive part of the Code, and 51
orders comprehending the procedural aspect of the Code. Although there are 51

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orders in the Code, this article will specifically focus on the first 21 orders that lays
down the basic civil procedure to be followed by a civil court in a case hearing.

Before proceeding solely with orders, it is necessary to understand the difference

between order, decree, and judgment under the Code of 1908 in order to eliminate
any kind of confusion.

• Order: Defined under Section 2(14) of the Code of 1908, the order simply
provides as to how a case will move forward in a civil court. As the provision
provides, order connotes the formal expression of a Civil Court’s decision, but
expressly excludes a decree.

• Decree: Defined under Section 2(2) of the Civil Procedure Code, 1908, the
decree is also a formal expression of an adjudication that lays down the rights
of the parties in a civil case that are the plaintiff, and the defendant. A decree
must have the following essential; the rights of the parties, the suit,
adjudication, conclusive determination of the decided rights of the parties,
and should be in writing.
• Judgment: Defined under Section 2(9) of the Code of 1908, a judgment is a
statement delivered by the Judge in a civil case on the basis of the order, or
the decree previously passed by him, or her, to the parties involved in the
case. A judgment must consist of the statement of facts, the determining
points, the decision of the court, and the reason behind the court’s decision.

Order 1 to 21 of the Code of Civil Procedure,

1908
As the Code of Civil Procedure, 1908 is a very significant, and relevant civil
procedural law, knowledge about the Orders stands indispensable. Along with that
for preparation of any legal competitive examinations, this statute cannot be
ignored. Remembering the orders often becomes difficult and therefore, along with
the legal explanation, a simple interpretation has also been provided hereunder to
make the civil procedure easy to be understood by individuals of both legal, and
non-legal background.

Order 1: Parties to Suit

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There are always two parties involved in a case. For a civil case, these two parties
are referred to as the plaintiff, who is responsible for instituting the suit against the
other party, and the defendant who is the other party and has to provide his
defense in the civil court against the allegations made on him. This is the beginning
of a civil case as have been provided under Order 1 that deals with Parties to suit.
Right after the parties to suit are recognized comes the need to frame the suit as
provided under Order 2.

Order 2: Frame of Suit

The plaintiff will be approaching a civil court with his suit which is familiarly known
as Frame of Suits provided under Order 2 of the Code. Framing of suit signifies that
a party has instituted a legal action against another party. As provided by Rule 2 of
Order 2, the plaintiff is supposed to include his entire claim in the suit, which will
function as a cause of action brought by the plaintiff against the defendant. The
framed suit needs to be instituted before the civil court. But, who does the
institution? Is it the plaintiff, or any other individual? This question is answered
by Order 3 of the Code.

Order 3: Recognized agents and pleaders

Order 3 of the Code of 1908 talks about recognized agents and pleaders. For
instituting the suit framed by the plaintiff before the civil court, the instituting party
needs the help of a legal professional or a pleader who is expertise in the field of
law. Here comes the need to hire a lawyer who takes the framed suit before the civil
court on behalf of the aggrieved party, that is the plaintiff. Who all can be
categorized as recognized agents, and pleaders have been given room under Rule 2,
and Rule 4 of Order 3 respectively. Now it becomes the responsibility of the
recognized agent, or a pleader, to institute the suit before the civil court on behalf of
the disputed party, the plaintiff, which brings us to Order 4 of the Code.

Order 4: Institution of suits

For instituting the suit, a plaint needs to be presented before the court by the
plaintiff. The meaning of a plaint has been explained under Order 7 of the Code of
Civil Procedure, 1908. It is to be noted that for the proper institution of suit
compliance with sub-rules (1), and (2) of Rule 1 of Order 4 stands mandatory. While
sub-rule (1) mandates the presentation of a plaint to institute a suit before the court
of law, sub-rule (2) provides that no plaint as provided in the previous rule can
escape the rules provided under Order 6, and 7 of the Code.

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Order 5: Issue and service of summons
After a suit is instituted by the plaintiff, there comes the need to inform the
defendant about such a suit so that the latter can appear before the court, and
provide his defense against the claim made by the plaintiff. To facilitate the
defendant to do the required steps, the court serves summons as has been duly
provided under Order 5 of the Code of 1908. The defendant is provided with a
period of 30 days to appear before the court, and file a written statement. The
proviso of Rule 1 of Order 5 provides that if a defendant appears before the court at
the time the plaint is presented and admits whatever the plaintiff has claimed in the
plaint submitted to the court, then in this case no summon shall be served to the
defendant. Put simply, summon is the medium by which the court calls the
defendant to present his defense against the claims made by the plaintiff in his
plaint. Order 5 also includes the steps involved in serving the summons and the way
they are to be delivered.

Order 6: Pleadings generally

Rule 1 of Order 6 provides the meaning of the term “pleadings” which shall mean
plaint, or written statement. Although plaint, and written statement will be
explained in Order 7, and 8 respectively, the current Order emphasizes the
essentials of a pleading which are;

1. Pleadings must be stating relevant facts only. Evidence does not have
significance in a pleading (Refer: Rule 2 sub-rule (1)).

2. To avoid wasting the court’s time, pleadings must be divided in small

paragraphs, and the dates, figures, and numerical should be expressed both
in figures, and words in a pleading (Refer: Rule 2 sub-rule (2), and (3)).
3. The pleading must be consisting of all necessary particulars in cases they are
specifically required (Refer: Rule 4).
4. To include any new ground in the pleading which appears to be inconsistent
with the previous one, amendments are a must. (Refer: Rule 7)
5. Pleadings must not contain any matter of fact that will be of a biased nature,
favoring either of the parties to the case (Refer: Rule 13).

6. It is mandatory for the respective parties to provide their initials in their

pleadings (Refer: Rule 14).

Order 7: Plaint

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The term plaint has been taken into consideration previously while discussing the
institution of suits. Order 7 particularly deals with it. The ingredients of a plaint are
laid down under Rule 1 of the Order. If the requisites are not abided by, Rule 11 of
the Order that deals with grounds for rejecting a plaint will come into play. While the
plaintiff is going to submit his plaint, the defendant has to answer the plaintiff’s
claim before the court by means of a written statement which is provided under
Order 8 of the Code.

Order 8: Written statement, set-off, and counter-

claim
After the summon is served to the defendant by the court under Order 5, the
defendant shall submit his written statement before the court within the specified
period of 30 days from the date of receiving the summon from the court. The
consequence of the failure to submit the written statement within such time will
allow the court to specify some other day for the defendant to submit his
statement. But the new specified date must not exceed 90 days from the date of
issue of summons by the court to the defendant. The most important trait of the
written statement submitted by the defendant is that it must contain specific
denials of the allegations made by the plaintiff and not just a general one.

Order 9: Appearance of parties and

consequences of non-appearance
After pleadings by the two parties, the court will ask for appearances of the parties
to proceed with the hearing of the case. Order 9 of the Code provides the same.
Rule 1 of the Order specifically points out that the parties in a civil case are
supposed to appear before the civil court on the date which is specified in the
summons served to the defendant by the court. The interesting part of this Order is
the consequences provided for the non-appearance of the parties, which has been
listed down hereunder:

1. Rule 3 talks about the non-appearance of both parties on the specified date.
In this situation, the court shall dismiss the suit.
2. Rule 6 talks about the situation when only the plaintiff appears before the
court. Under this Rule, three scenarios have been provided which will decide
the fate of the suit accordingly.
3. Rule 8 talks about the non-appearance of the plaintiff on the date the suit is
called for hearing. In such a situation also the suit will be dismissed by the

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 court provided the defendant has not admitted the claim made by the plaintiff
against him. If otherwise, then the court shall pass a decree against the
defendant on the basis of the claim admitted thereby dismissing the rest of
the suit.

Order 10: Examination of Parties by the Court

After the appearance of the respective parties before the court, the court shall
examine the parties of the case as provided under Order 10 of the Code of 1908.
The examination of the parties is a necessity;

1. For the court to ascertain whether the allegations brought over by the plaintiff
against the defendant are admitted by the latter or stands rejected.

2. For the court to direct the parties to resort to Alternative Dispute Resolution
(ADR), and try to settle the dispute outside the court to avoid the lengthy
proceedings of the court.
It is to be noted that Orders 11, 12, and 13 take place within the examination
procedure laid down under this Order.

Order 11: Discovery and inspection

It is not enough for the court to frame issues just from hearing the parties in a case.
Therefore, Order 11 which deals with discovery and inspection comes as help for
the court to delve into the concerned case further, and only after acquiring
sufficient knowledge about the same will the court proceed with the framing of the
issues.

Order 12: Admissions

Right after discovery, and inspection by the court comes admission provided in
Order 12 of the Code. After the court has sufficient knowledge about the allegations
by the plaintiff and the defense presented by the defendant supported by the
inspection, and discovery of new facts, or evidence associated with the case, either
of the parties to the suit can admit the truth of the case by parts, or as a whole by
means of pleading.

Under Rule 6 of the Order, the court can on the ground of satisfaction on the
admission of facts by either of the parties, by means of pleading can pass judgment
as it may think fit, without taking into consideration any other questions existing

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between the parties to the case. Along with such judgment, a decree shall also be
provided which will bear the pronouncement date of the judgment.

Order 13: Production, impounding, and return of

documents
Order 13 is the last step of examination of the parties by the court. Dealing with the
production, impounding, and return of documents, Order 13 requires the parties to
provide all the original copies of documentary evidence supporting their respective
pleadings on, or before settling the issues. Therefore it is quite clear that the next
step the court undertakes is settling the issues, and determining the fate of the suit
on legal grounds, which brings us to Order 14.

Order 14: Settlement of issues

After hearing the parties in detail, and gaining sufficient knowledge about the case,
the court proceeds to frame the issues as provided under Rule 1 of this Order. An
issue arises out of a disagreement between the parties on certain grounds in
relation to the facts of the case. Two important points to take into consideration
with regards to the framing of issues are;

1. Non-framing of a significant issue can turn out to be detrimental, as was

observed in the case of Monoranjan Paul v. Narendra Kumar Paul (1994).
2. The court will be framing issues in accordance with those pleadings which
have been confirmed by one party whereas denied by the other, as was the
opinion made in the case of Dr. Om Prakash Rawal v. Mr. Justice Amrit Lal
Bahri (1994).

Order 15: Disposal of the suit at the first hearing

Framing of issues is extended over both Order 14, and 15 of the Code. The essence
of Order 15 is provided in Rule 1 itself. The Rule provides that if the parties are not
at issue on any question of fact, or law in relation to the case, the court will dispose
of the suit at the very first hearing, and thereby pronounce the judgment.

Order 16: Summoning and attendance of

witnesses

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After the court has examined the parties, discovered related facts to the case, and
framed issues based on the pleadings of the parties comes the need to hear out the
witnesses. Here comes Order 16 of the Code that deals with summoning, and
attendance of witnesses. Following the similar procedure, as the court had
previously got along while calling the defendant, the court shall issue summons to
the witnesses to appear before the court, and present their version to the ongoing
case. Further, Order 16 A deals with the attendance of witnesses who are confined
or detained in prison.

Order 17: Adjournments

As the hearing begins, enters the concept of “adjournment”. Adjournment signifies
postponement of the date of hearing of the suit. The proviso of Rule 1 of Order
17 states that adjournment will not be granted more than three times in a row to a
party at the time of hearing of the suit. It is also to be noted that adjournment will
be granted by the court only if sufficient cause is shown for not appearing on the
date of the hearing. Hearing of the suit is covered by Orders 17, 18, and 19 of the
Code.

Order 18: Hearing of the suit and examination of

witnesses
After the adjournment, the court fixes a date for the hearing of the suit which brings
us to Order 18. In a hearing of a civil case, it is the plaintiff who has the right to
begin the hearing of the suit. Under this Order, rooms for examining the witnesses
called over have also been included.

Order 19: Affidavits

In order to prove the facts, or examination taking place in each hearing, the parties
to the suit can file affidavits in the court. This brings us to Order 19 that talks about
affidavits. Rule 3 of this Order specifies the matters only to which the affidavits shall
be limited to.

Order 20: Judgment and decree

After the entire hearing procedure as explained above comes the calling for a
declaration of a judgment, and decree. While decree provides the rights of the

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parties, the judgment is a formal expression delivered by the Judge on the basis of
the decree. Every judgment must be signed as provided under Rule 3 of Order
20. Order 20 A deals with costs.

Order 21: Execution of decrees and orders

Order 21 holds significance because it deals with the execution of the decrees, and
orders passed by the court. The meaning of both decree and order has been
discussed previously in this article. Order 21 can be classified in 6 parts as provided
hereunder:

1. Applications for execution and the process to be applied.

2. Stay of executions.

3. Mode of executions.

4. Sale of immovable property and movable property.

5. Adjudication of the claims and objections.

6. Resistance and delivery of possession

Conclusion
Order 1 to 21 of the Code of Civil Procedure, 1908 holds immense importance as it
guides a person as to how, and by which path does a civil case reach its destination
that is to resolve the dispute between the two parties in a suit. This article has tried
to simplify the orders for quick understanding, and easy remembrance.

SUMMARY ABOVE

Meaning, object and essentials of summons

If we try to understand the legal recourse in the case of a civil suit, then the first step leading to a
civil suit is a dispute over a particular matter or property. This gives rise to a cause of action
followed by identification of the parties, i.e., plaintiff and defendant. This is followed by the
identification of the subject matter over which the dispute has arisen. The jurisdiction of the court
is determined along with the value of the suit/plaint. After considering the jurisdiction and
valuation of plaint, a plaintiff files a suit or plaint in a civil court. The most important step comes
after the institution of a suit, which is the issuance of summons within seven days of the

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institution of the plaint, after which a defendant is under an obligation to submit a written
statement within 30 days. This is followed by further proceedings and arguments.

The importance of summons lies in the fact that when a plaintiff files a suit, the defendant must
be informed about the suit that has been filed against him so that he can be heard and the
procedure of fair trial is followed. The document which is sent by the court to the defendant to
inform him about the suit filed against him is known as a summon.

The word ‘summon’ has not been defined anywhere in the code. The definition of summons as
given by the Oxford dictionary states that, “a document which is issued from the court of justice
and calls upon a person to whom it is directed, to be present before a judge or court for a specific
reason is called a summon.” Issue and service of summons are given under Order 5 of the Code.

Objective of summons
The following are the objectives of summons:

• It is important to inform a person about any legal action that has been taken against
them.
• It gives an opportunity to the defendant to present his case and side of the story.
• The basis of summons lies in the maxim “Audi Alteram Partem”, which means to hear
both sides.
• It further helps in following the principles of natural justice and ensures fair
proceedings and trial.
• It helps in ensuring the presence of either a witness or accused or any other person
who is involved directly or indirectly in a suit before the court.
• To produce the necessary documents.

Essentials of summons
The essentials of a summon are given under Order 5, Rules 1 and 2 of the code. These are:

• Every summon must be signed by the judge or any other officer whom he appoints to
do so on his behalf.
• It must be sealed properly.
• The court will not issue any summons to the defendant if he has appeared before the
court at the time of the institution of the plaint.
• After summons are issued, the defendant is required to file written statements within
30 days. If he fails to do so, he has to provide reasons, and if the court is satisfied, it
can extend the time period to file written statements to not more than 90 days.

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 • Another essential element of summons is that every summon must be accompanied by
a copy of the plaint.
• The format of a summons must be according to the prescribed form given in Appendix
B of the First Schedule under the code.

Contents of summons
Rule 5 to Rule 8 of Order 5 under the code gives the content of summons. A summon must
contain:

• Information, whether it is issued for settlement of issues or final disposal of the suit.
According to Rule 5, the court of small causes can only issue a summons for the final
disposal of a suit and nothing else.
• It must contain the date and day fixed for the appearance of the defendant, considering
the factors like the residence of the defendant, time, etc., so that he can get a
reasonable time and opportunity to appear before the court.
• It also contains the list of necessary documents that a defendant is required to produce
in court.
• If the summons is issued for final disposal, it must direct the defendant to produce
witnesses on his behalf to support his side.

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.

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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.

Summons to defendants
According to Rule 1 of the Order, whenever a lawsuit is instituted by a plaintiff, the defendant
has to file a written statement within 30 days of the issuance of the summons to him. If he fails to
do so and furnishes an appropriate reason, the court, after consideration, may extend the time up
to 90 days. However, the court will not issue any summons if the defendant was present at the
time of the institution of the plaint and has admitted the claim of the plaintiff. Section 27 of the
Code further provides that a summons must be issued to the defendant when the suit is instituted
to appear before the court and answer the plaint in the form of written statements.

Section 28 mentions the condition where the summons issued to a defendant has to be sent to a
different state or jurisdiction where he resides. In such a situation, the court will send the
summons to the court having jurisdiction in that particular area, and then the said court will
perform duties as if the summons had been issued by it. It will further return the record of its
proceedings to the court that originally issued the summons. If there is any difference in language
between the summons issued and the records, the records will be translated into Hindi or English
and then sent along with the summons.

Appearance of defendant
According to Rule 3, if summons has been issued to the defendant, he may appear before the
court in the following ways:

• He may appear himself in person or,

• Through his pleader, who will answer all the questions on his behalf or,
• by a pleader along with another person to answer all the questions.
The court, however, has the power to call defendants at any time to appear personally before the
court if there are reasons to do so.

Exemption from appearance

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The code provides certain provisions that mention the people who are exempted from appearance
in the court on the issuance of a summons and the necessary conditions. These are:

• Section 132 provides that any woman who cannot be compelled to appear in public
due to the customs and other manners followed, will not be asked to appear before the
court. This does not mean that she will not be arrested if required in civil proceedings.
This will only happen if the code provides for any such exemption provision.
• Section 133 further gives the list of particular people who are exempted from
appearing before the court personally. This includes:
o The President of India
o Vice-President
o Speaker of house
o Union Ministers
o Supreme Court judges
o Governors of states and union territories
o Speakers of state legislative assemblies
o Chairman of the state legislative council
o States’ Ministers
o High Court judges
o Any other person on whom Section 87B is applicable.
• According to Rule 4 of Order 5, a person will be exempt from appearing before the
court if:
o He does not reside within the local limits of the court’s jurisdiction or

o He lives in a place that is more than 50 miles or 200 miles away from the
court.

Mode of service of summons

This is one of the most fundamental and important rules of law that states that a party must be
given a fair chance to represent himself, and this is only possible if he has been served with fair
and reasonable notice of legal proceedings stating the legal action taken against him. This will
also give him the opportunity to defend himself and present his case.

One of the major causes of delay in justice or pendency in cases is the service of summons. The
defendants or people to whom the summons are issued may avoid it or ignore it, which results in
a delay in proceedings, leading to a delay in justice. The Law Commission and the makers of the
law felt a need to make certain amendments with respect to the service of summons and their
modes of service. The code gives several modes of service of summons, which are discussed
below in detail.

Personal or direct service

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This mode of service of summons is simple. In this mode, a copy of the summons is issued to the
concerned person or his agent or any other person on his behalf, and the person receiving the
summons must acknowledge the same. It is the duty of the officer serving summons to ensure and
make an endorsement with regard to the summons served that states the time and manner of
service, the name and address of the person receiving the summons, and witness to the delivery of
the summons.

Rules 10 to 16 and Rule 18 of the order deal with personal or direct service. While serving
summons through this mode, the following principles must be taken into consideration:

• The service officer must try to serve the summons to the defendant or his agent.
• If the defendant is not present at his place of residence and there is no agent, then it
must be served on any adult male or female member of the family living with him on
his behalf.
• If a suit is related to the business or work of a person who does not reside within the
territorial jurisdiction of the court, then it may be served to the manager or agent of
that business or work.
• In the case of a suit on immovable property, if the defendant is not found, then the
summons may be served on any person or agent who is in charge of such property.
• If a suit involves two or more defendants, then the summons must be issued to each of
them.

Service by the court

Rule 9 of the Order deals with the service of summons by court. It provides that if a defendant
resides within the jurisdiction of the court, then the summons must be served to him by the court
officer. It can also be served by post, fax, message, email service, approved courier service, etc.,
but if the defendant does not live within the jurisdiction, then it must be served by the officer of
the court within whose jurisdiction he resides.

In the case, summons are served by Registered post acknowledgment due (RPAD), the court will
assume the valid service of summons is complete even if there is no acknowledgement slip. If a
person refuses to accept it, the court may treat it as a valid service. The Supreme Court, in the
case of Salem Advocate Bar Association v. Union of India (2005), directed the high courts to
make appropriate rules or guidelines to ensure that the provisions of summons are implemented
properly without any abuse of power or process of law.

Service by plaintiff
According to Rule 9A of the Order, the court may permit the plaintiff, on his application, to serve
summons to the defendants. He has to deliver the copy of the summons which is sealed and
signed by the judge or any other officer appointed by the judge to do so, and also make sure that
the defendant summons acknowledges the service. If the defendant refuses to acknowledge the
service or if it cannot be served personally, the court will re-issue the summons and serve it to the
defendant.

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Substituted service
Substituted service means a mode of service of summons that is adopted in place of ordinary
service of summons. There are two modes of substituted service as given under Rules 17, 19 and
20 of the Order. These are:

• If the defendant or his agent refuses to acknowledge or sign the receipt of the
summons, or if the officer serving the summons reasonably believes that the defendant
is not present at his residence and will not be found within a reasonable time, and
moreover if there is no agent to receive summons on his behalf, he may affix the copy
of the summons on the door or any conspicuous part of his house.
o In this case, the serving officer has to make a report stating the reasons for
affixing the summons, the circumstances, the name and address of the
person who helped him and the witnesses to affixing the summons.
o The court can declare that the summons has been issued if it is satisfied
with the report of the officer.
• If the defendant is deliberately avoiding service and the court has a reason to believe
so, it may affix the summons in some conspicuous place in the court and house of the
defendant where he used to reside, carry on business or work for somebody.
In the case of Yalllawwa v. Shantavva (1997), the Supreme Court held that this mode of service
of summons is not an ordinary mode and must not be used normally. It must only be used in
exceptional cases and treated as the last option.

According to Rule 20, if a court orders to advertise the summons in the newspaper, then it must
be done in a local newspaper where the defendant lived, had a business, or worked. This service
is an effective option to serve summons even if the defendant is not reading the newspaper (Sunil
Poddar v. Union Bank of India, 2008).

Before issuing the summons through this mode of service, the court must give the defendant a
reasonable time to appear before the court. In another case, State of Jammu and Kashmir v. Haji
Wali Mohammad (1972), the Supreme Court held that if a summon does not fulfil the
requirements of Rule 19 of Order 5 under the Code, then such service of summons is not in
accordance with the law.

Service by post
The Code earlier provided that the summons could be served through the post as well and was
given under Rule 20A of the Order, but this provision has been repealed by the Amendment Act
of 1976.

Service of summons in special cases

Rules 21–30 provide the mode of service of summons in special cases.

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 • If the defendant resides in another state or outside the jurisdiction of the court issuing
the summons, the court may send the summons to another court in whose jurisdiction
the defendant resides to serve it on him.
• According to Section 29 of the code, if any foreign summon has to be served, then it
must be sent to the court in the territories where the code applies, and they will further
serve the summons as if it had been issued by them.
• If the summons has to be served in presidency towns like Calcutta, Madras, and
Bombay, then it may be sent to the Small Causes Court of that particular jurisdiction.
• If the defendant does not live in India and has no agent then according to Rule 25, the
court can serve the summons by way of post, fax, email or any other appropriate
means. The other way of serving the summons to such sovereign country where the
defendant resides is either by a political agent or through the court of that country,
which has powers and authority to serve the summons as given under Rule 26 of the
order.
• If the defendant is a public officer, a railway officer, or a servant of the local authority,
then the summons can be served through the head of their departments.
• If the defendant is a soldier, airman, or sailor, then the summons can be sent through
their commanding officer.
• If the defendant is a convicted prisoner, then the summons can be served through the
officer in charge of the prison.
• In case, the defendant is a company or a corporation, the summons may be served to
the secretary, director, or principal officer of the company or through post to the
address where such company carries on its business or at its registered office.
• If the defendants are partners in a firm, then it must be served to any one of the
partners, but if the partnership has dissolved before the suit has been instituted, then
every partner must be served the summons.
• The court issuing the summons also has the power to substitute it with a letter of
request, which will contain the same contents and information as the summons. This
will be done for any person depending upon the position or office held by such a
person.

Refusal and objections to summons

There are instances where a defendant refuses to accept the summons or accepts it but refuses to
sign the acknowledgment or objects to the summons being issued. This leads to a delay in the
proceedings of the suit. To deal with such situations, the code has provided certain safeguards.

Refusal of summons
According to Rule 9 of the Order, if the defendant refuses to accept the summons, it is deemed
that the summons has been served on him. Similarly, when he or his agent refuses to sign the
acknowledgement, the court will assume that he has refused to take delivery of the summons and
treat such summons as duly served. This was also mentioned in the case of Puwada
Venkateswara v. Chidamana Venkata (1976).

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Objection to service of summons
In the case of Bheru lal v. Shanti lal (1984), the court held that if there are any objections to the
summons served, they must be raised as soon as possible and at the earliest. If it is not done at
that stage, then the court assumes that the defendant has waived off this opportunity.

Conclusion
Order 5 of the Code of Civil Procedure, 1908 specifically deals with the issue and service of
summons to the defendant. It provides various rules related to the issuance of summons and their
modes of service. All of these have been discussed in detail in the article. It also provides the
scenario as to what will happen if a person refuses the summons. The defendant has also been
given the opportunity to raise the objections to the summons if any at the earliest or else it will be
waived. But there are many instances where the defendants tend to avoid or ignore the summons.
This further results in delays in court proceedings and the pendency of suit. The law makers and
the courts must look into this issue in order to solve the problem of the pendency of cases in our
country.

Frequently Asked Questions (FAQs)

What is the difference between Order 5 and Order 16 of the code?

Order 5 of the Code particularly deals with the issuance of summons to defendants, while Order 16 deals
with summons to witnesses.

Who is an agent or pleader in a civil suit?

An agent is a person who either expressly or impliedly acts on behalf of another person called a principal.
In a civil suit, he is allowed to speak on behalf of another person for whom he is the agent. While the word
‘pleader’ has been defined under clause 15 of Section 2 of the code. He is the person who pleads or
appears in court on behalf of his client and includes a vakil, an advocate, and an attorney of the High
Court. He acts as counsel for his client and also advises him to make the right decisions.

Rule 4 of the order provides the procedure for the appointment of a pleader in a civil suit. It prescribes that
a pleader can be appointed by a document in writing, which is known as a vakalatnama or vakalat patra.
This document is signed by the party for whom he is appointed or by his recognised agent under the code
or by any other person who has been authorised by him to do so.

Order 3 of the code deals with agents and pleaders. The following persons are considered as agents under
the code:

• A person with power of attorney,

• A person who carries trade or business for the parties or on their behalf,

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 • A person appointed by the government to either prosecute or defend on behalf of foreign
rulers,
• A person authorised to act on behalf of the government.

How does a defendant appear before the court?

He may appear before the court in the following ways:

• He may appear himself in person or,

• Through his pleader who will answer all the questions on his behalf or,
• By a pleader along with another person to answer all the questions.
•

What is the penalty if a person fails to comply with the summons?

The court under Section 32 of the code can impose a penalty on the person who was served the summons but
failed to comply with it. The court may:

• Issue a warrant of arrest against such person,

• It may attach or sell his property,
• Impose fine,
• Order him to furnish security for default.
•
For better understanding we shall refer these special cases herein under:
Sr.No. If Defendant Service Of Summons
Resides Outside Jurisdiction of Serve through the court where he
1
Court or state resides
Serve through Electronic mail ,fax or
2 Resides in foreign Country
courier
Resides in Presidency town of Serve through Small Causes Court
3
Mumbai, Kolkata or Chennai situated therein
Serve through Head of department
4 Is public servant
where he is working as public servant
5 Is Soldier, sailor or airman Serve through his commanding officer
Serve through Manager, secretary
6 Is Corporation
,director
Serve through Firm, one or more
7 Is Partnership Firm
partners having control over it
Serve through officer incharge of jail
8 Is in prison
authority

REMIDIES AGAINST RETURN ORDEROF THE COURT UNDER ORDER 7 RULE 10 CPC
ChatGPT
In the context of a civil court case, if you want to seek remedies against the return order of the
court under Order 7 Rule 10 of the Civil Procedure Code (CPC), it typically means that the court

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has returned the plaint or the petition you filed for some reasons specified in the said rule. Order
7 Rule 10 of the CPC deals with the rejection of a plaint on various grounds. To seek remedies in
such a situation, you can consider the following steps:

1. Review the Return Order: First, carefully review the court's return order to understand
the specific reasons for the return. The court may return the plaint for various reasons,
such as lack of jurisdiction, insufficient court fees, improper presentation, or non-
compliance with the required formalities.
2. Correct the Deficiencies: If the return order specifies the deficiencies in your plaint or
petition, you should rectify these deficiencies. This may include paying the requisite court
fees, amending the pleadings, or addressing any other issues pointed out by the court.
3. File a Fresh Petition: If the return order is based on substantial grounds that cannot be
easily rectified, you might need to file a fresh petition or plaint, addressing the court's
concerns and ensuring that all legal requirements are met.
4. Appeal or Revision: Depending on the nature of the return order and the specific legal
provisions in your jurisdiction, you may have the option to file an appeal or revision
against the return order. Consult with a legal expert or attorney to determine the
appropriate course of action.
5. Seek Legal Advice: It is advisable to consult with an experienced attorney or advocate
who specializes in civil litigation. They can provide guidance on the specific remedies
available in your jurisdiction and help you navigate the legal process effectively.
6. Compliance with Court's Directions: If the court has provided specific directions in the
return order, ensure that you comply with those directions within the stipulated time
frame.
7. File an Application: In some cases, you may need to file an application seeking the
court's reconsideration of the return order, particularly if you believe that the court has
made an error in returning the plaint. This application should be supported by legal
arguments and evidence.
8. Alternative Dispute Resolution: Depending on the nature of your case and the court's
reasons for returning the plaint, you may explore alternative dispute resolution methods
like mediation or negotiation to resolve the dispute before proceeding with litigation.

The specific remedies available to you may vary based on the laws and rules applicable in your
jurisdiction, so it's essential to consult with a legal professional who is familiar with the local laws
and court procedures.

SUIT FOR RECOVERY OF POSSESSION IS A SUIT OF CIVIL NATURE OR NOT. EXPLAIN IN CPC
INDIAN LAW
ChatGPT
In Indian law, a suit for the recovery of possession is considered a civil suit. It falls under the
purview of civil law and is governed by the provisions of the Civil Procedure Code (CPC). The CPC
provides a comprehensive framework for the conduct of civil suits in India, including those
related to the recovery of possession.

A suit for the recovery of possession typically arises when a person or party seeks to regain
possession of immovable property (land, house, etc.) from another party who is in unauthorized

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possession. This type of suit is primarily based on the principles of property law and civil rights. It
is distinct from criminal cases, which deal with offenses and punishments for criminal acts.

The specific provisions in the CPC that pertain to suits for recovery of possession include Order 7
Rule 1, which outlines the contents of the plaint (the written statement of a claim), and Order 7
Rule 4, which specifies that a suit for the recovery of possession of immovable property must be
instituted in the court within whose jurisdiction the property is situated. Additionally, Order 21 of
the CPC deals with the execution of decrees in such suits.

The procedure for filing, contesting, and adjudicating suits for the recovery of possession, as well
as the remedies and relief available to the parties involved, is outlined in the CPC. It is essential
for the parties and their legal representatives to follow the procedures and requirements set out
in the CPC when pursuing or defending such suits.

In summary, a suit for the recovery of possession is indeed a civil suit under Indian law, and it is
subject to the provisions of the CPC, which govern the conduct of civil litigation in India.

WHAT ARE THE DIFFERENT MODE OF EXECUTION OF DECREE AND ALSO EXPLAIN THE TERM
GARNISHEE ORDER AND PRECEPTS
ChatGPT
In Indian law, the execution of a decree refers to the process of enforcing a court order or
judgment (decree) issued by a civil court. There are several modes of execution of a decree under
the Civil Procedure Code (CPC). Let me explain some of the different modes of execution:

1. Attachment of Property: This mode involves seizing and taking possession of the
judgment debtor's (the person against whom the decree is passed) movable or
immovable property. The property is sold, and the sale proceeds are used to satisfy the
decree.
2. Arrest and Detention: In cases where the decree is for the payment of money, the
judgment debtor may be arrested and detained in civil prison until the decree amount is
paid, as per the court's order.
3. Recovery of Detained Property: If the judgment debtor has detained property or assets
belonging to the decree-holder (the person in whose favor the decree is passed), the
court may order the release of such property.
4. Appointment of a Receiver: The court can appoint a receiver to take possession of and
manage the property to ensure that the decree is satisfied.
5. Delivery of Possession: In suits related to the recovery of possession, the court may
issue an order for the delivery of possession to the decree-holder.
6. Recovery of Specific Moveable Property: If the decree is for the specific delivery of
movable property, the court may order the recovery of that property.
7. Payment of Money: This is the most common mode of execution. The court may order
the judgment debtor to pay a specific amount of money to the decree-holder.

Regarding the terms "Garnishee Order" and "Precepts":

1. Garnishee Order: A Garnishee Order is a legal order issued by a court to attach or

recover money in the hands of a third party (the garnishee) that is due to the judgment

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 debtor. This is often used when the judgment debtor has a debt owed to them by a third
party. The court directs the garnishee to pay the debt directly to the decree-holder,
effectively diverting the money from the judgment debtor to satisfy the decree.
2. Precepts: Precepts are orders issued by a court for the execution of a decree in a
different jurisdiction. If a decree is to be executed in an area or court other than where it
was passed, the court that passed the decree will issue a precept to the appropriate court
in the other jurisdiction, instructing them to execute the decree. This allows for the
enforcement of the decree across different territorial jurisdictions within India.

These legal mechanisms and modes of execution help ensure that court decrees are effectively
enforced and that judgment debtors comply with court orders to satisfy the decree-holder's
claims.

Settlement of Issue
and Determination of suit on issues of law or on issued as agreed upon:
Order XIV
When one party affirms and other party denies a material proposition of fact or law, then
only issues arise. If there is no specific denial, the question of framing issue does not,
generally, arise. Material propositions are those propositions of law or fact. The plaintiff
must allege such material propositions in order to show his right to sue. In the same way,
defendant must allege as to constitute his defence. Unless each material proposition is
affirmed by the plaintiff and denied by the defendant, a distinct issue will not form.

Material Propositions:
Basically, Material propositions can be understood in sense of two aspects. Those are
Proposition of fact and Proposition of law. Those propositions of fact or law which a plaintiff
must specifically allege in order to show a right to sue or a defendant must specifically
allege in order to constitute his defence in such suit. In Sri Nanjudchari vs. The Chairman,
it was held that ''It is mandatory on the part of the trial court to frame all necessary issues
arising from pleadings i.e., material preposition of fact and law of affirmed by the one party
and denied by the another.

Framing of issues rule 1

1. Issues arise when a material proposition of fact or law is affirmed by the one party
and denied by the other.
2. 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.
3. Each material proposition affirmed by one-party and denied by the other shall form
the subject of distinct issue.
4. Issues are of two kinds:

a. issues of fact,
b. issues of law.

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 5. At the first hearing of the suit the Court shall, after reading the plaint and the written
statements, if any, and 71[after examination under rule 2 of Order X and after
hearing the parties or their pleaders], ascertain upon what material propositions of
fact or of law the parties are at variance, and shall thereupon proceed to frame and
record the issues on which the right decision of the case appears to depend.

Court to pronounce judgment on all issues Rule 2

1. Notwithstanding that a case may be disposed of on a preliminary issue, the Court

shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
2. Where issues both of law and of fact arise in the same suit, and 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 if that issue relates to:

a. the jurisdiction of the Court, or

b. a bar to the suit created by any law for the time being in force, and for that
purpose may, if it thinks fit, postpone the settlement of the other issues until
after that issue has been determined, and may deal with the suit in
accordance with the decision on that issue.

Materials from which issues may be framed Rule 3

The Court may frame the issues from all or any of the following materials:

a. allegations made on oath by the parties, or by any persons present on their behalf,
or made by the pleaders of such parties;
b. allegations made in the pleadings or in answers to interrogatories delivered in the
suit;
c. the contents of documents produced by either party.

Court may examine witnesses or documents before framing issues rule 4

Where the Court is of opinion that the issues cannot be correctly framed without the
examination of some person not before the Court or without the inspection of some
document not produced in the suit, it may adjourn the framing of the issues to a future day,
and may (subject to any law for the time being in force) compel the attendance of any
person or the production of any document by the person in whose possession or power it is
by summons or other process.

Power to amend and strike out, issues rule 5

1. The Court may at any time before passing a decree amend the issues or frame
additional issues on such terms as it thinks fit, and all such amendments or
additional issues as may be necessary for determining the matters in controversy
between the parties shall be so made or framed.

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 2. The Court may also, at any time before passing a decree, strike out any issues that
appear to it to be wrongly framed or introduced.

Questions of fact or law may by agreement be stated in form of issues rule 6

Where the parties to a suit are agreed as to the question of fact or of law to be decided
between them, they may state the same in the form of an issue, and enter into an
agreement in writing that, upon the finding of the Court in the affirmative or the negative of
such issue:

a. a sum of money specified in the agreement or to be ascertained by the Court, or in

such manner as the Court may direct, shall be paid by one of the parties to the other
of them, or that are of them be declared entitled to some right or subject some
liability specified in the agreement:
b. some property specified in the agreement and in dispute in the suit shall be
delivered by one of the parties to the other of them, or as that other may direct; or
c. one or more of the parties shall do or abstain from doing some particular act
specified in the agreement and relating to the matter in dispute.

Court, if satisfied that agreement was executed in good faith, may pronounce
judgment Rule 7

a. that the agreement was duly executed by the parties;

b. that they have a substantial interest in the decision of such question as aforesaid,
and
c. that the same is fit to be tried and decided,it shall proceed to record and try the
issue and state its finding or decision thereon in the same manner as if the issue had
been framed by the Court.

And shall, upon the finding or decision on such issue, pronounce judgment according to the
terms of the agreement; and, upon the judgment so pronounced a decree shall follow.

Affidavit Order 19 Code Of Civil Procedure, 1908

The term "affidavit" is not defined in the Code, it generally means "a sworn statement in
writing made especially under oath or on affirmation before an authorised officer or
Magistrate." An affidavit is, to put it simply, a written declaration of facts that is sworn in
front of a witness with the power to conduct oaths. Every affidavit must be written and
should only include facts, not conclusions.

It has been properly attested or affirmed by the Notary or Oath Commissioner. The Court
appoints these commissioners for notaries and oaths. The notary and oath commissioners
have a responsibility to make sure the deponent's signature are not fake. As a result, the
deponent must appear in person before the notary or oath commissioner to get the
affidavit attested.

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Essentials of Affidavit:

• It must be a statement made by an individual.

• It must be related to facts.
• It must be in written form.
• It must be written in the first person and sworn or confirmed in front of a magistrate
or another authorised official.

Contents of Affidavit

• An affidavit should only contain information that the deponent can personally attest
to. However, the deponent is permitted to mention such facts in interlocutory
applications that are founded on belief under Rule 3(1) of Order 19.
• A sense of responsibility should be shown when filing affidavits on behalf of the
state.
• Conflicting affidavits submitted by the same officer are inappropriate; the
government spokesperson exhibits complete neglect for the truth.

Verification of Affidavit
An affidavit has to be validated. The purpose of verification is to hold the deponent
accountable for the allegations made and to determine whether the deponent's claims are
true and authentic.

According to Section 3 of The Evidence Act, affidavits are considered "evidence." The
Supreme Court, however, held that an affidavit can only be used as evidence if the Court so
orders for adequate reasons (Khandesh Spg & Wvg Mills CO. Ltd. Vs Rashtriya Girni
Kamgar Sangh). Therefore, without a particular court order, an affidavit cannot typically be
used as evidence.

The Supreme court in case of Amar Singh v. Union of India and others, has given
instructions to the courts registry to carefully review all affidavits, petitions, and applications
and reject any that do not follow Order XI the Supreme Court Rules and Order XIX of the
Code of Civil Procedure. In this ruling, the Supreme Court emphasised the significance of
affidavits and analysed numerous judicial rulings on the subject.

In case of Virendra Kumar Saklecha v. Jagjiwan and others, the court ruled that failure to
provide information will show that the election petitioner failed to identify the information's
source at the earliest opportunity. The significance of revealing such a source is to notify the
opposing party and to give them a chance to verify the accuracy and authenticity of the
information source.

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Filing of False Affidavit
A person intentionally swears false and irrelevant statements to be true, correct, and
accurate in an affidavit and signs it with the intent to deceive the Court. This is known as a
false affidavit. This significantly slows down the legal process and is a blatant abuse of it.
Filing of false affidavit is an offence under Sections 191, 193, 195, and 199 of the Indian
Penal Code.

The person who submits a fraudulent affidavit may face criminal contempt of court charges.
If a person files false affidavit in a situation when a court has ordered a party to do so is
punished under Section 2(c) of the 1971 Contempt of the Courts Act. It is punishable by a
term of up to six months.

Section 200 of the Indian Penal Code allows a private complaint to be made before a
magistrate.

Conclusion
It is clear that an affidavit is a very significant document. Even when authorised
representatives sign it, only those who are fully informed of the circumstances of the case
are expected to sign it and a person who is aware of the existence of such facts and
circumstances makes a sworn statement of those facts in an affidavit.

All about the procedure of returning a plaint under CPC

Table of Contents
• Introduction
• Return of plaint
o Office Equipment vs. The Pradeshiya Industrial and… (1997)
• Grounds for returning a plaint
o Jurisdiction of courts
§ Territorial jurisdiction
§ Pecuniary jurisdiction
§ Subject matter
• Procedure for returning a plaint
o Order 7 Rule 10
o Rule 10A
§ Application
o Rule 10B – Transfer of suit
• De Novo trial
• Conclusion
• References

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Introduction
A complaint is a written statement filed by the plaintiff before a court that has jurisdiction. It
is filed to claim relief by the plaintiff. Therefore, it is very essential that the complaint be
filed, disclosing all the causes of the actions and filed under the accurate jurisdiction of the
court. Otherwise, the appellant may face rejection or return of the complaint, as the case
may be. In this article, we will discuss the return of plaint. Under Order 7 Rule 10 of the Civil
Procedure (Amendment) Act, 1976, the return of a plaintiff on the basis of incorrect
jurisdiction is contained.

Return of plaint
• The return of the complaint is covered under Rule 10A of Order VII. Rule 10A and
10B were added to Order VII by the Civil Procedure (Amendment) Act, 1976.

• There are circumstances where the plaint is filed wrongly; it may lack some legal
formalities or the court under whom it is appealed may not have jurisdiction to
proceed over that case.

• So in these situations,the court has the power to return the complaint and may
advise filing it under the correct jurisdiction.

Office Equipment vs. The Pradeshiya Industrial

and… (1997)
• In this case, the petitioner filed a petition before the High Court of Delhi to
appoint an arbitrator from this court for adjudicating disputes between the
parties.

• The respondent filed a reply that the tender of the petitioner was accepted by
him at his office in Lucknow so accordingly, the Delhi High Court has no
jurisdiction to proceed over it.

• Therefore, it was held that the court in Lucknow has jurisdiction to try and decide
the proceedings. The complaint, under Order 7 Rule 11 of the Code of Civil
Procedure, was returned to the plaintiff.

Grounds for returning a plaint

The court can return the complaint only on one ground, i.e., its jurisdiction.

Jurisdiction of courts

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Jurisdiction means any authority conferred by the law upon the court, tribunal or judge to
adjudicate the dispute between the parties. Different courts have different powers, rights,
authority and territorial limits to exercise.

Section 9 of the Code of Criminal Procedure deals with the jurisdiction of the courts. It says
all civil cases are triable under this section unless they are barred.

Territorial jurisdiction
Territorial jurisdiction can be explained as:

• The local courts under whose further immovable property lies will deal with
issues related to that property. Issues such as rent, partition, sale, redemption
rights, etc

• If the property is situated within more than one court’s jurisdiction, the case can
be filed under either of the courts under which that property lies.

• In the case of movable property, either the court under whose jurisdiction the
damages have occurred can proceed with the case or the court under whose
jurisdiction the defendant resides can proceed with the case.

• In cases of matrimonial disputes, the particular court has jurisdiction either

where the dispute arises, where the plaintiff resides where respondent resides or
where the marriage was solemnised.

Pecuniary jurisdiction
Section 15 of the Code of Civil Procedure says that every case should first be filed
with the lower court, which is competent to try such a case. The cost amounting to
suits is tried accordingly by the court, which has the power to do so.

Subject matter
There are courts that are authorised to try some particular cases only; they can not
hear all kinds of cases. Such as family courts have power to proceed over issues
related to Hindu law, matrimonial cases, etc.

Jurisdiction in respect of a person amenable to military law.

Procedure for returning a plaint

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Order 7 Rule 10
It describes the procedure for returning a complaint. The judge or the court can return the
complaint only on the grounds mentioned under Sections 15 to 20 of the Civil Procedure
Code. While doing so, the judge has to mention the following in his order.

1. The date on which the petition is presented and date on which it is returned
should be mentioned on it.

2. The names of the parties presenting the complaint should be mentioned.

3. A brief statement is given to the plaintiff, mentioning the reasons for returning it.

4. The plaintiff can also be returned by the court on the request of the plaintiff if the
court is satisfied.

Suits By Or Against Minors And Persons Of Unsound Mind Under The CPC: A
Comprehensive Analysis/ process of filing suit against minor cpc
A legal system that bases itself in justice, equity and good conscience must have provisions
to ensure that fair justice is meted out to all sections of citizens that come before it.
Naturally, since all citizens are not equally placed, special provisions need to be made for
some to ensure protection of their rights. Minors and Persons of Unsound Mind are persons
that can be easily exploited due to their mental incapacity, anticipating that they might be
cheated, ill-treated or trapped in a fraudulent device, there are several provisions to ensure
their protection.

Order XXXII is one such provisions which ensures that rights of such persons are protected.
It contains a set of rules to apply to each case concerning minors and persons of unsound
mind and has measures to ensure that such persons are protected not only against the
opposite persons in the concerned case but also from adverse interests of their own
guardian or next friend.

Introduction:
Order XXXII of the Code of Civil Procedure, 1908 deals with SUITS BY OR AGAINST MINORS
AND PERSONS OF UNSOUND MIND. Order XXXII contains special provisions applicable only
in cases where either the suit is:

i. To be instituted at the cause of a minor/person of unsound mind

ii. To be instituted against a minor/person of unsound mind

In the Code of Civil Procedure, the main object behind the enactment of Order XXXII is the
protection of the interests of minors and persons of unsound mind. The origin behind this
concern rests in Common Law. The Common Law position is that persons who are unable to
understand the nature and consequences of their actions (of immature intelligence and
discretion[1]) ought not to be liable for their actions so undertaken. This legal position
stands firm even today except where his status is that as a cestui qui trust.

131
Quoting Pollock:
An infant is not absolutely incapable of binding himself, but is, generally speaking, incapable
of absolutely binding himself by contract.[2]
The law will, as a general principle, treat all acts of infants which are of his benefit on the
same footing as those of adults, but will not permit him to do anything prejudicial to his own
interests.[3]

In Ram Chandra v. Man Singh it was held that a decree passed against a minor or a lunatic
without appointment of a guardian is a nullity and void, not merely voidable. [4] Now that
the origin of the concerned aspect of law is intelligible, it next becomes important to
describe who it pertains to.

A minor is, for purposes of civil litigation in India, defined to mean a person who has not
attained majority under the provisions of the Indian Majority Act, 1875, that is a person who
has not completed the age of eighteen years and in the case of a minor of whose person or
property a guardian has been appointed by a court, or whose property is under a court of
wards, a person who has not attained the age of 21 years.[5]

Similarly, a person of unsound mind is a person who is declared after competent

examination to be unable to understand the nature and consequence of his actions due to
the presence of a mental disease or infirmity.

Rules 1 - 14 of Order XXXII apply not only to minors and persons, adjudged to be of unsound
mind, but also, those, who are found to be, by a Court upon inquiry to be incapable, by
reason of any mental infirmity, of protecting their interest when suing or being sued. This is
based on the natural law principle that both parties to a suit must be heard equally before a
suit is adjudicated upon.

The next legal problem that arises is how best to ensure that such disadvantaged persons
are not taken advantage of by means of vexatious litigation or misuse of provision. This was
addressed by the concept of next friend or guardian. The concept is framed on the
assumption that a next friend or guardian, being an adult of reasonable prudence will act to
ensure that the disadvantaged persons interests are not misdirected.

Concept of Next Friend/ Guardian:

The object behind having a next friend or guardian ad litem is that a minor is deemed to be
incapable of defending himself and therefore it is imperative that his interests in the suits
should be supervised by an adult person. This person, in case the minor is a plaintiff, is to be
called the next friend and when the minor is a defendant, is called a guardian ad litem or
guardian for the suit. However, neither the next friend nor guardian ad litem is a party to
the suit.[6] The power of the person so assigned is limited to the proceedings for which he is
recognised by the court.[7]

Who can be appointed as Next Friend/Guardian:

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Every suit by a minor should be instituted in his name through his guardian or next
friend.[8] If the same is not done, the plaint will be taken off the file.[9] Any person who has
attained majority and is of sound mind[10], may act as a guardian or next friend, provided
his interest is not adverse to that of minor, who is not the opposite party in the suit and who
gives consent in writing to act as a guardian or next friend.[11] In the absence of a guardian
who is fit and willing person to act as a guardian, the court may appoint any of its officers as
guardian in that particular suit.[12]

Provisions to ensure that interests of minors are safeguarded during the suit - Rule 5 of
Order XXXII states that every representation made before the court other than under Rule
10(2) must be made by his next friend or guardian.[13] Where an order is passed without
such representation, the same may be discharged with.[14] Further, by way of Rules 6 and 7,
without the leave of the court, no guardian or next friend can:

• Receive any amount or movable property on behalf of the minor

• Enter into any agreement on behalf of the minor
• Reach any sort of compromise in the suit on behalf of the minor

The guardian must apply for leave of the court in all of the above cases and the application
must be accompanied with a pleaders certificate and affidavit. Any agreement entered into,
without the leave of the court is voidable at the instance of the minor.[15] Rules 6 and 7
have been designed in order to safeguard the interests of a minor during the pendency of a
suit against hostile, negligent or collusive acts of next friend or guardian.[16]

The principle these rules follow is that infant litigants become wards of court and therefore
it becomes the duty of the court to ensure that guardians act properly and bona fide in the
interests of the minor.[17] The protection however, is only during the pendency of the suit.

Duty to Act in Best Interest of Minor:

as already stated in rule 4 any person complying with the qualifications under Rule 4 may
become guardian or next friend. The guardian or next friend however, must ensure that he
acts in best interests of the minor or unsound person. A guardian must ensure that the
discretionary powers exercised by him in his capacity as guardian including the
employment/dismissal of legal counsel etc. must be in the best interests of the minor and
not to advance his own cause or interests.[18]

However, in certain cases it may be allowed for the guardian and the minor to have
common interest in the suit. As in the case of Ranganathan Chettiar v. Perrkarriappa
Chettiar where the mother was allowed to bring a suit concerning certain properties to be
inherited by her and her minor son which had been wrongfully claimed by the brother of
the deceased husband.[19]

Retirement, removal or death of guardian/next friend - A next friend or guardian who

wishes to retire must first procure a fit person to substitute him and give security for costs
already incurred by him.[20]

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The court may also remove a particular guardian or next friend if the court is satisfied that
either[21]:

a. His interest is adverse to that of the minor in the concerned case

b. He is in such a standing as to be capable of colluding with the opposite party or is
closely connected to the opposite party
c. He does not discharge his duty to the satisfaction of the court
d. He ceases to stay in India during the pendency of the suit and is therefore unable to
look after the best interests of the minor
e. Any other sufficiently justifiable cause as the court may decide

In a case where a guardian or next friend retires or is removed or in the case of his death,
the suit remains stayed until another appropriate guardian is duly appointed in that
particular case.[22]

When Minor attains majority:

When a minor attains majority, he can choose either to proceed with a particular suit or to
abandon it, if he had moved the court through a next friend/guardian. Therefore:

i. Where he elects to proceed with the suit - he must apply for an order from the court
discharging the next friend or guardian and for leave to proceed with the suit in his
own name.[23]
ii. Where he elects to abandon the suit - he must apply for dismissal of suit on
repayment of costs to defendant or next friend/guardian as the case may be.[24]
iii. Where minor co-plaintiff desires to repudiate suit - he may repudiate the suit and
apply to have his name as co-plaintiff stuck off. The court after examination of the
circumstances may remove his name from the suit on finding that he is not a
necessary party or may make him a defendant instead.[25]
iv. Where minor desires that suit instituted in his name be dismissed on the ground
that it was unreasonable/improper - he may by application move the court for
dismissal on such grounds.[26]

It is important to mention that Order XXXII does not expressly provide for provisions when a
defendant would attain majority because a defendant cannot terminate the suit.[27]

Application of Order XXXII to persons of unsound mind - Rule 15 of the Code states that the
provisions of Order XXXII (Rules 1 to 14) shall squarely apply to persons of unsound mind as
they do to minor with exception of Rule 2A which relates to the furnishing of certain
securities by guardian.[28]

Conclusion:
Order XXXII is another example of exemplary legal framework which is part of a larger code
and process of litigation that has been operating since the inception of the Code in 1908.
The rules under the order have also been amended from time to time to ensure that
relevance is maintained.

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Situations such as fraud, collusion and adverse[29] interest have been considered. The
judicial opinion as to negligence of guardian have changed over time[30] and is an
interesting field where there is more scope to expand minor�s rights. However, Order XXXII
is quite complete in its treatment of the legal problem on how to ensure fair representation
of minors and persons of unsound mind.

provisions reguarding the discovery impounding and

return of documents in cpc

Discovery – Order 11
Under Civil Procedure Code, 1908 discovery basically means a pre-trial procedural aspect wherein each party is
given an opportunity to obtain evidence from the opposite party or parties. In other words, we can say that it is
a formal process wherein the parties get a chance to exchange information regarding the witnesses and evidence
which will be presented before the court during the trial.

The main purpose of discovery is to make the parties aware of the case, that means there shall not be any
ambiguity between parties while the trial is going on. Both the parties shall be clear about the plaint made and
issues thereby.

There are various types of discovery:-

1) interrogatories;

2) requests for production of documents and inspection;

3) requests for admissions;

4) depositions;

5) subpoenas duces tecum;

6) physical and mental examinations.

Nature and scope

The scope of this section is basically determined by the extent of discovery which can be made by the party with
the intervention of the court. The information which is obtained during the discovery is not needed to be
admissible in court. As per the requirement, parties can obtain an order from the court for the discovery of
required facts/ documents from the opposite party to understand the purpose of the case. Thereby, the scope
or extensibility of applying this section depends upon the nature of the case and material which is asked by the
other party. So it is the discretion of the court to decide whether the application is covered as per the scope
provided to the section under the code or not.

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But there are certain limits to the extensibility of the discovery of the documents. If they are redundant or overly
burdensome, they are not called for discovery.

Therefore, it is understood that this procedure is provided to compel the other party to produce documents on
which they are relying on, other than the evidence. When such particulars regarding the case are asked through
questions, then they are termed as interrogatories. And if the other party is requesting documents then it is
the discovery of documents.

Discovery of documents
When the adversary party is simply compelled to disclose the documents which are under its possession or
power, then that is called as the discovery of documents. The discovery of documents is covered under the Rule
12-14 Order XI of the code.

Who may seek discovery?

Any party to a suit under oath may apply for an order from the court for the discovery of documents which are
related to the matter in question of the suit from the adversary party.

Against whom discovery may be ordered?

An appropriate court can order any party of the suit to dispose of the documents which are in its power or
possession to the asking party. However, the party need to be related to the suit.

Conditions

While the discovery of documents is being asked, two conditions need to be taken care of by the court:-

1. The discovery ordered is necessary for the fair disposal of the suit.
2. The discovery will save costs.

Objection against discovery

The party can raise an objection if the documents required to submit comes under the purview of the privileged
documents. However, objecting by filing an affidavit would not be enough, the party who is objecting also needs
to give proper reasoning behind such objection. The proper reasoning will enable the court to decide the
objection raised by the party. It is open to the court to inspect the documents and check the viability of the
objection raised by the party. Another objection which can be filed is that discovery is not necessary at this stage
of the suit.

Admissibility of document

The documents which are asked under the discovery of documents are not always admissible in court. The
documents may be admissible in the case if they are relevant to the case and which may have some impact on
the issues dealt under the case.

In Gobinda Mohun v. Magneram Bangur & Co, it was held that:

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“Rule 12 of Order 11 is considerably wider than Order 13, Rule 1 of the Code. The right to obtain discovery of an
adversary’s documents is a very wide one and is not limited merely to those documents which may be held to
be admissible in evidence when the suit is ultimately tried.

It is true that in a suitable case a defendant may object to the production of a document on the ground that it
relates solely to his title, but if on the other hand, that document may have some bearing in support of the
plaintiff’s title, such objection cannot be validly raised. If an order for discovery is made under Rule 12 of Order
11 all the documents relating to the case should be embodied in the affidavit of documents by the person against
whom the order for discovery is made. If however, the defendant considers that he is entitled to protection in
respect of the production of any particular documents which may be entered in the affidavit under Order 11,
Rule 13 of the Code, he will be at liberty to raise such objection at the proper stage of the proceedings if and
when he is ordered to produce such documents under Order 11, Rule 14 or to give inspection of them under
Order 11, Rule 18.

The Calcutta High Court sought to distinguish the Judgment of the A.P. High Court in P. Varalakshmamma v. P.
Bala Subramanyam 1958 wherein it was held that:

It is lawful for the Court, under Order 11, Rule 14, Civil P.C., at any time during the pendency of any suit to order
the production of a document. The words “at any time” are very significant and important. Rule 14 does not
require that the order for production should be made only after an order of discovery is obtained under Order
11 Rule 12 C.P.C.”.

Documents disclosing evidence

The document which is related to the evidence of the adverse party can not be ordered by the court. Such orders
can be detrimental to the administered party which is restricted under the code.

Affidavit of documents

The documents under this rule are provided with the affidavit as under the Form No. 5 in Appendix C with
required variations as per circumstances.

Privileged documents

Privileged documents are covered under “crown privilege” which is based on the doctrine of “public welfare is
the highest law”. However, even if this doctrine is given the importance, it does not mean that justice shall not
be paramount. Thereby when parties use it as an umbrella of defence, then under such circumstances, the court
has the right to verify the admissibility of such defence. After checking the document, the court can decide on
the matter. Mere assertion by the party will not be entertained or accepted by the court.

Oppressive discovery

While ordering the discovery of the documents it shall not be an oppressive order by the court. The court while
using its discretion power shall consider two questions:

1. Whether it is important to order such discovery;

2. Whether it is impossible for the administered party to give the documents ordered under discovery.

Rules as to discovery

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The general rules for the discovery of the documents are as follows:

1. Any party can get an order from the court for the discovery of the documents or for inspection of
documents.
2. It is the discretion of the court to pass such an order.
3. The court can use its power any time during the suit, either suo moto or by the application of the
party.
4. The court shall not pass an order for the discovery, inspection or production until the written
statement has been filed by the defendant.
5. No such order shall be passed if the application is made by the defendant until he has not filed a
written statement.
6. Discovery of the document shall not be made if the court is not of the opinion that this order will
lead to fair disposal of the suit or useful for saving cost.
7. A party to whom an order of discovery of documents has been passed, as a general rule, shall
produce all the documents which are under his possession related to the suit.
8. If the parties are taking any legal protection under the privileges provided under the code, then the
court shall verify such documents and give the protection.
9. Failure to comply or default from the side of the parties to the order for discovery, production or
inspection, can lead to adverse inference on the party.

Inspection of documents
Under Order XI Rule 12-21 of the CPC, the rule for the inspection of discovery is provided. As per Rule 12 of the
code the party can compel other parties to produce the documents without filing an affidavit to apply to the
court, relating to any matter of question-related to the suit. However, such documents need not be admissible
in court unless they give out some connection in a matter of controversy.

As per the Rule 15-19 of Order XI of the code, the inspection of documents can be divided into two categories:

1. The documents which are referred to in the affidavits or pleadings of the parties.
2. The documents which are not referred to in the pleadings of the party but are in the power or
possession of the parties.
And the parties are allowed to get the inspection of the former category documents, not the latter one.

Privileged documents

Privileged documents are :

1. Public records;
2. Confidential communication;
3. Documents which have exclusive evidence of the parties’ title.
Such mentioned privileged documents are protected from the production. So to get benefit from this privilege
and to avoid the risk of repetition, the court can order the parties to produce the document to the court. And
the court can inspect such documents and ascertain the validity of the claims which were made to make that set
of documents underprivileged.

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Premature discovery

As per Rule 20, a discovery is termed as premature discovery or inspection:

1) When the right to discovery is based on the determination of any issue or question in dispute; or

2) For any reason, it is desirable that any issue or question in a suit should be determined before deciding upon
the right of discovery.

Non-compliance with order of discovery or inspection

As per Rule 21, the order of the court is binding in nature, and the parties who do not comply shall be liable to
pay the penalty. Hereby, we can understand that the intent of the legislature to provide such provision is:

1. To compel the parties to disclose all the material documents and facts on oath.
2. To restrict the parties from coming up with new documents which are actually in power or
possession of the party during the trial.
The court has the discretion to postpone a premature inspection or discovery. Under such circumstances the
first thing court shall do is to determine that question or issue and afterwards, deal with the discovery. The main
logic of this provision is to enable the court to distinguish between the difference of deciding an issue in suit
from deciding the suit itself. However, it needs to be kept in mind that this provision will not work if the discovery
in itself is necessary for solving the issue or question.

The importance of such provision is that if the defendant denies complying with the provision it will be deemed
that the defense from the defendant’s side will be struck off and that will restore the position of the defendant
to where he had been as if he has not defended. In the case, if the plaintiff does not comply to the provisions
then it will lead to an adverse effect that means the plaintiff will disentitle to file a case as a fresh suit on the
same cause of action and res judicata will be applicable. Therefore, non-compliance will impact the case
adversely.

Admissions – Order 12

Admission basically means the voluntary acknowledgement made by the person against his own interest. It can
be an important piece of evidence against a person. It can either be in oral, electronic form or documentary in
nature. Admissions are different from the confession which is made under the criminal law. Admission is weaker
than confession because the parties have the right to prove that admission made earlier was false.

However, assertions are different from admission. It can be made in favour of themselves. It can be true or false,
therefore assertions are not considered as an important piece of evidence which can be used against a person.

Importance

As per the case of Bharat Singh And Anr vs Bhagirathi, the Supreme Court held that:

Admissions are substantive evidence by themselves. But as per section 17 and section 21of the Indian Evidence
Act, they are not conclusive in nature. However, if admission is proved beyond doubt and duly proved, then
irrespective of the fact if the witness appeared in the witness box or not, the admission can be considered
admissible.

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In the case of Biswanath v Dwarka Prasad, the Apex Court observed that:

1. The admissions are made by the maker against himself unless otherwise proved or explained.
2. The admissions are considered as proprio vigore that means a phrase which by its own force.
In another case of Supreme Court, Bhogilal Chunilal Pandya vs The State Of Bombay, it has been stated that even
if admissions made are not communicated to the other person, then also that can be used against him. For
example: if the person has written in the accounts book regarding debt, then if such evidence is available then
that will be considered as an admission even if the debt was not communicated to other people.

Kinds of admissions

Under the Code, the admissions are admitted in three ways:-

1. By agreement or by notice;
2. Actual admissions, oral or by documents;
3. The express or implied admissions from the pleadings or by non-traverse by agreement.

Conclusiveness of admission

The admissions are not conclusive in nature. They can be erroneous or gratuitous. Admissions made can be
withdrawn or explained away. It can be proved wrong. The context of the admission can be made after hearing
the pleadings in entirety. Oral admissions prevail over documentary or records of rights. Even the admission, if
made earlier, can be proved to be collusive or fraudulent. And one more important thing is, if the admissions
are made by the co-defendant then that can not be used against other defendants.

Notice to admit case

As per Rule 1, any party to the suit can admit the whole or part of the case of the other side in writing.

Notice to admit documents

Within seven days of the notice served by the other party to admit the documents, the party shall respond to
the notice. If not responded on the mentioned time then the party which fails to do so will be liable to answer
the delay and the costs of providing them.

Every document which was called upon to admit if:

1. Not denied specifically or by necessary implication, or

2. Not stated to be admitted by the party in their pleading, or
3. Not replied during the reply to the notice;
shall be deemed to be admitted.

One exception to the above provision is the person under disability.

If a person without any valid reason refuses or neglects to admit documents then that person shall be penalised
and will be made to pay to the opposite party. The court can suo moto call the party to admit the documents.

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The form of the notice to submit the documents shall be in Form No. 9 in Appendix C, with variations as per
requirement.

Notice to admit facts

Any party in the suit can call the other party to admit facts of the case by giving them notice which shall not be
later than nine days before the day fixed for the hearing.

And the other party if refuses or neglects to admit the facts then within six days after service of notice or as per
the time prescribed by the court, shall be informed to the court. However, the costs of proving such fact or facts
shall be paid by the party.

Further admissions shall be used only for the purpose of the suit for which it has been made. It shall not be used
against the party on any other occasion or in favour of any person other than the party giving the notice.

The form of the notice shall be as per Form No.10 in Appendix C and the admissions made thereby shall be in
Form No. 11 in Appendix C, as per the requirements needed.

Judgment on admissions

As per Rule 6 Order 12, Judgment on admissions can be read as-

Where admissions are made during:

1. Facts or pleading or otherwise;

2. May be in oral or in writing;
The court at any stage of the suit-

1. Either on the application or of its own motion;

2. Without waiting for the determination of questions by parties;
can give out judgment as it may think fit, with regard to such admissions.

Production, impounding and return of documents- Order 13

Production of documents

As per Rule 1 of Order XIII, the parties or their pleaders shall produce the documents at or before the settlement
of disputes.

Admission of documents

Subject to the provisions of the Code the admission of the documents are allowed as evidence in the suit when
the following particulars are made:

1. The number and title of the suit,

2. The name of the person producing the document,

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 3. The date on which it was produced, and
4. A statement of it having been so admitted;
The endorsed documents shall be signed by the Judge.

Where the admission of documents in evidence is:

• An entry in a letter-book or a shop book; or

• Other accounts which are in current use, or

• Entry in a public record produced from the public office or by a public officer, or
• An entry in a book or account belonging to a person other than a party on whose behalf the book
or account is produced; under such circumstances, the person can produce a copy of the document,
after the proper examination, comparison and certification as per Rule 17 of Order VII of the Code.
Further, the documents admitted into evidence shall be part of the record of the suit.

Return of documents

If any party to the suit or not is having the desire to receive back any of the documents submitted by him in the
suit which is placed on the record is entitled to receive the documents unless it is impounded by the court
under Rule 8.

The court can return the documents on the following grounds:-

1. Where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and;
2. where the suit is one in which an appeal is allowed when the Court is satisfied that the time for
preferring an appeal has elapsed and that no appeal has been preferred or if an appeal has been
preferred when the appeal has been disposed of;
3. During the pendency of the suit, the party can receive the documents if the following conditions
are fulfilled:

• the party is substituting the original document with a certified copy from a proper officer;
• Undertakes to produce the original copy if required.
While returning the document which has been admitted in evidence, a receipt shall be given to the person who
is receiving it.

Rejection of documents

Rule 3 gives the discretion to the court to reject the documents on the basis of inadmissibility or irrelevance of
the document. The court while rejecting the documents shall also mention the grounds of such rejection.

Impounding of documents

The court can order the parties in the suit to produce any documents or book before the court as per Rule 8
notwithstanding Rule 5 or Rule 7 of Order 13 or Rule 17 of Order 7 of the code.

The documents or books impounded by the court shall be in the custody of an officer of the court, for such
period with subject to conditions if required.

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Affidavits – Order 19

Affidavits are dealt under Order 19 of the Code. It is a sworn statement made by the person who is aware of the
facts and circumstances which has been taken place. The person who makes and signs is known as ‘Deponent’.
The deponent makes sure that the contents are correct and true as per his knowledge and he thereby concealed
no material therefrom. After signing the document, the affidavit must be duly attested by the Oath
Commissioner or Notary appointed by the court of law.

The person who gives attestation to the affidavit shall make sure that the sign of the deponent is not forged.
The affidavit shall be drafted as per the provisions of the code. It must be paragraphed and numbered properly.

Even though the “affidavit” has not been defined in the code, it basically means “a sworn statement in writing
made specifically under oath or affirmation before an authorized officer or Magistrate.”

Essentials

There are some basic essentials which are required to be fulfilled while submitting the affidavit in the court:

1. It must be a declaration by a person.

2. It shall not have any inferences, it shall contain facts only.
3. It must be in the first person.
4. It must be in writing.
5. It must be statements which are taken under oath or affirmed before any other authorized officer
or a Magistrate.

Contents of affidavit

As per Rule 3, an affidavit shall contain only those facts to which the deponent is aware off as true to his personal
knowledge. However, interlocutory applications can be filed wherein he can admit his belief.

Evidence on affidavit

As per section 3 of the Evidence Act, affidavits are not considered as evidence. When there is a need to prove
the facts, oral evidence is normally taken into consideration by the court. However, Rule 1 Order 19 is invoked
by the Court when it finds that it is necessary to make an order for any particular fact which may be proved by
affidavit. If a person provides evidence under the affidavit then the opposing counsel has the right to cross-
examine or reply-in-affidavit.

Further, the person who is making an affidavit shall put on those facts only to which he has true personal
knowledge. If he gives a statement, not to his personal knowledge then in such case he shall mention the true
source. The counsel shall advise the deponent to make sure that he puts facts which he knows rather than what
he believes.

The court can reject the affidavit if it is not properly verified and not in conformity with the rules of the code. At
the same time court can also give an opportunity to the party to file the affidavit properly.

In the interlocutory applications like interim injunctions, the appointment of receiver, attachment of property
wherein the rights of the parties are not determined conclusively, can be decided on the basis of the affidavit.

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False affidavit

Under Section 191, 193, 195, 199 of IPC,1860, filing a false affidavit is an offence. Giving a lenient view will
undermine the value of the document and it will harm the proceedings and will provide no justice to the parties.
Criminal contempt of court proceedings can be initiated by the court against the person who files false affidavits
in the court of law. Strict actions are taken against public officials who files false affidavits.

As per section 193 of the IPC:

• a person who intentionally gives false evidence or fabricates false evidence during a judicial
proceeding, he shall be punished with seven years of imprisonment and fine;
• and whoever intentionally gives or fabricates false evidence in any other case, shall be punished
with imprisonment of either description for a term which may extend to three years, and shall also
be liable to fine.

commission and conditions of issuing commision in cpc

The purpose of issuing commission by the court is to impart complete justice to the parties
to the suit. The power of issuing commission rests totally in the discretion of the judges[1].
By issuing a commission in a particular case, the Court performs an in - depth investigation
where the Court deems necessary.

Issuing of Commission can be made by the Court if it gets an application from the parties,
stating the necessity for the same or sue - moto.[2] Section 75 to 78 of the Code of Civil
Procedure, 1908 speaks about the discretionary power of the Civil Courts and Order 26 to
issue commission for the furtherance of complete justice.[3] According to Section 75 of the
Code of Civil Procedure, 1908, the court may issue a commission for any of the following
purposes:

1. Examination of witnesses
2. Perform a local investigation
3. For adjustment of accounts
4. To do a partition
5. To hold investigation
6. For conducting a sale
7. For the performance of a ministerial act.[4]

1. Examination of witnesses
Issuing of commission for the purpose of examination of witnesses is guided by Sections 76
to 78 and by Rules 1 - 8 of Order 26.[5] Generally the examination of witnesses is done in an
open court. The evidence of the witnesses is examined by cross - examination and recorded
in the presence of all. However sometimes it may happen where the witness may not be
able to come and appear in the court. The reasons for the inability to come to the Court
must be reasonable.

The Court relaxes the rule of attendance in the Court and issues commission only if the
Court finds that the reason for non - attending the court is justified. The reasons for non -
attendance of the witnesses may be on the grounds of illness, or if the witness resides

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beyond the local limits of the jurisdiction of the Court or any other reasons as the Court may
find sufficient[6]. In the case of Paramhansa Ramkrishna v. Trimbak Rajaram, the court
had issued a commission to record the evidence of the witness who was a Parmahansa.
Parmahansa are people who practice various religious rituals and practices and due to
which they remain and roam around naked[7].

Similarly in the case of Vinayak Trading Co. v. Sham Sunder & Co., the court had issued a
commission for the recording of the statement of the witness, as the court had
apprehended danger to the life of the witness if he becomes compelled to come to court.[8]

2. Perform a local investigation

This is covered by Rules 9 and 10 of Order 26 of the Code of Civil Procedure.[9] Courts can
issue commission where it finds that there is a need to:

1. To get a proper clarity regarding a matter in dispute; &

2. To get a proper valuation of the property in dispute if any, or if any damages or
mesne profits is involved in the claim of a suit, then finding the exact amount for the
same.[10]

The main reason to conduct a local investigation by issuing a commission is to find out and
obtain evidences which would bring clarity and help the court in determining the case. The
investigation is performed where the evidences are of peculiar in nature and which can only
be ascertained by visiting and conducting an investigation at the spot.[11] In the case
of Southern Command Military Engg. Services Employees Coop. Credit Society v. V.K.K.
Nambiar, the court had to issue a commission to find out whether the tenants had really
occupied the premises in dispute of the suit. This was a peculiar situation which can only be
ascertained by visiting the place and conducting investigation.[12]

3. Adjustment of accounts
Rules 11 and 12 of Order 26 of the Code of Civil Procedure, 1908 guide the action of
conducting an investigation by the Court by issuing a commission to examine and for the
adjustment of accounts.[13] The Court issues gives necessary instructions to the
commissioner and the reports provided by the Commissioner shall then be deemed to be
evidence in the Court.[14]

4. To do a partition
This is guided by Rules 13 and 14 of Order 26 of Code of Civil Procedure, 1908.[15] In this
case, the Court issues a Commission when a preliminary decree of partition of an
immovable property has been passed by the Court. The duty of the Commission is to make
the partition according to the guidelines provided by the decree. The Commissioner then
divides the property into the required number of parts and then allots the shares to the
parties. After partitioning and allotting the parts of the property to the rightful owners, the
Commissioner prepares a report and provides it to the Court. After allotting, if any party
objects or is unsatisfied of something, the Court hears their objections and passes a final

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allotment decree.[16]

5. To hold investigation
Rule 10 - A of Order 26 of the Code of Civil Procedure, 1908 guides this cause of issuing a
commission.[17] When the Court finds that the issue of a case deals with any peculiar
dispute which requires a scientific investigation and which cannot be successfully conducted
in the Court premises, the Court issues a commission to investigate into the matter and
inquires into the matter.

6. To sell property
This is guided by Rule 10 - C of Order 26 of the Code of Civil Procedure, 1908.[18] The Court
issues a commission when the Court requires selling a movable property on which the Court
has custody and on which a case is pending. The selling of the property becomes necessary
if the property cannot be properly preserved or if the court deems the selling necessary in
the interest of justice. The Commissioner is directed to sell off the property and submit the
report of the sale to the Court.

7. For the performance of a ministerial act

The statute guiding this is Rule 10-B of the Code of Civil Procedure, 1908.[19] The Court
issues a Commission when a requirement of the performance of a ministerial act comes.
Ministerial Acts constitutes works like accounting, calculation and works of the same nature.
The ministerial acts do not require the application of judicial mind and if done by the Court,
it would lead to wastage of Court’s precious time. The Court issues a commission who would
perform all the ministerial acts as required and after completion the Commissioner shall
provide the report to the Court.[20] The Commissioner does not perform any judicial acts
and does only the ministerial acts for which the Commission had been issued by the
Court.[21]

what do u mean by inherint power of the court under sec 151 cpc?
discuss its scope and extent with case laws
The inherent power of the court is that which is inherent in a court by the very fact of its
being empowered to exercise any jurisdiction at all so that it comes within the express
sense of the law of within the consequences that may be gathered from it.

Scope: the Code of Civil Procedure is not exhaustive. Since laws are general rules, they
cannot regulate for all time to come so as to make express provision against all
inconveniences, which are infinite in number, and to foresee all cases that may possibly
happen with a view to provisions for all contingencies and for all the times.

The purpose of the law is to secure the ends of justice. The laws are not ends in themselves
but are only a means for securing justice. If the ordinary rules of procedure results in
injustice in any case and there is no remedy, it is the duty of the court to over-ride those
rules for achieving the ends of justice.

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Hence the framers of the code of Civil Procedure provided section 151, giving:
Inherent powers can be used only if the ordinary rules of procedure result in injustice in any
case and there is no other remedy, they can be broken for the ends of justice.

The inherent powers can be exercised where abuse of process of Court resulted from the
mistake of the Court or by the officers of the court.

Object: the object of inherent power of the court is to do justice and to undo wrong in case
of abuse of process of court fraud or misrepresentation by a party upon the court or where
there is absence of rule of procedure in the circumstances of a particular cases.

Section- 151: savings of inherent powers of Court- nothing in this code shall be deemed to
limit or otherwise affect the inherent powers of the court to make such orders as may be
necessary for the ends of justice or to prevent abuse of the process of the court.

When Can A Court Exercise Inherent Powers?

In the following circumstances, and cases a Court can exercise its inherent powers:

1. Section 151 does not confer a new power to the court, but makes a statutory
recognition of inherent power of the court to do certain things ex debito justice. The
inherent power can be involved only for the attainment of the ends of a substantial
justice.
2. Section 151 provides only an extra-ordinary procedure, and action under this
section, it is not in any sense obligatory.
3. Section 151 could only be involved where no other remedy is available. It does not
confer any substantive right on parties but is only meant to get over the difficulties
arising from rules of practice.
4. To consolidate suits and appeals including appeal to his Majesty in council, now the
Supreme court, even without the consent of the parties.
5. To order joint trial of suits.
6. To ascertain whether the proper parties are before it.
7. To entertain the application of a third person to be made a party.
8. To allow a defence in forma pauperis.
9. To say the drawing up of the court�s own orders or to suspend their operation, it
the necessities of justice so require.
10. To apply the principles of res judicata to cases not falling under Section 11 C.P.C.
11. To add a party.
12. To punish summarily by imprisonment contempt of courts.
13. To transpose parties.
14. To refuse permission to a co-plaintiff to withdraw from a suit in a case when he does
not ask permission to institute a fresh suit on the same cause of action or impose
terms upon him.
15. To stay proceedings to its own order in view of an intended appeal.
16. To decide question of jurisdiction though a result of its inquiry it may turn out that
the court has no jurisdiction over the suit.

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 17. To restore a suit dismissed for default in cases not provided for by a rule 9 of order
9.
18. To order a refund of court-fee paid by inadvertence.
19. To stay a suit where it does not come within section 10 (Res subjudice).
20. To grant temporary injunction where it does not fall under Order 39.
21. To reconstruct its record where they are lost by accident; etc, etc.

When Cannot A Court Exercise Inherent Power?

1. The object of Sec. 151 is to provide justice and to undo wrong in case of abuse of
process of Court of fraud or misrepresentation by a party upon the court, or where
there is absence of rule of procedure in the circumstances of a particular case. By
involving the inherent powers, a court should not cause damage to this object
2. The inherent powers cannot be involved where there is specific provision in the
code.
3. The code cannot exercise inherent power to grant interim relief which properly
ought to be granted only by the decree after determination of the points in
controversy.
4. To compel parties to submit to medical examination or blood test.
5. To appoint a commissioner to seize account-books in the possession of the plaintiff.
6. To consider or review an order.
7. To set aside an ex parte decree.
8. To strike a defence.
9. To restore suit dismissed for default for non-payment of court-fee under Rule 11(d)
of Order 7.
10. To refund court-fee on a review application when the review is granted on a ground
other than mistake of law fact; etc. etc.

What considerations would normally be taken by the court in allowing amendment of pleadings
in CPC
ChatGPT
In the Civil Procedure Code (CPC) in India, the court has the power to allow the amendment of
pleadings to ensure that the real questions in dispute between the parties are effectively
addressed and to promote the ends of justice. When considering whether to allow an
amendment of pleadings, the court typically takes into account various factors, including the
following:

1. Principle of Fairness and Justice: The primary consideration is whether the proposed
amendment is necessary for the just decision of the case and whether it promotes the
principles of fairness and equity.
2. Stage of Proceedings: The court may consider the stage at which the request for an
amendment is made. Generally, courts are more liberal in allowing amendments at an
early stage of the proceedings, such as before the filing of a written statement or before
the issues are framed.

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 3. Delay and Laches: The court will assess whether the party seeking the amendment has
been dilatory in making the request. Unreasonable delay or laches may be a factor
against allowing the amendment.
4. Prejudice to the Opposite Party: The court will consider whether the proposed
amendment will cause prejudice to the opposite party. If the other party can be
adequately compensated with costs or conditions, the court may be more inclined to
allow the amendment.
5. Nature of Amendment: The court will look at the nature of the proposed amendment. If
the amendment is substantive and involves introducing new causes of action, it may be
scrutinized more closely than amendments of a technical or procedural nature.
6. Futility: The court may examine whether the proposed amendment is futile and whether
it is likely to result in a valid and maintainable claim or defense.
7. Change of Plea: If the proposed amendment involves a change in the fundamental plea
of the party, the court may consider whether it is consistent with the party's earlier stance
and whether there are legitimate reasons for the change.
8. Limitation Period: The court will consider whether the proposed amendment would
relate to a cause of action that is barred by the limitation period. If it does, the court may
be less likely to allow the amendment unless there are exceptional circumstances.
9. Errors and Omissions: Courts are generally inclined to allow amendments to rectify
errors, omissions, or technical defects in the pleadings, as long as it doesn't prejudice the
other party.
10. Purpose of Amendment: The court may inquire into the reasons for the proposed
amendment. If the purpose is to defeat a valid claim or to abuse the process of the court,
the court may be less inclined to allow it.
11. Overall Interests of Justice: Ultimately, the court's decision to allow or disallow an
amendment is guided by the overall interests of justice and ensuring that the real issues
between the parties are properly adjudicated.

It's important to note that the court has a wide discretion in allowing or disallowing amendments,
and each case is considered on its individual merits. The overriding consideration is to do
substantial justice between the parties, and the court aims to strike a balance between the need
for the amendment and the rights of the opposing party.

What are the conditions precedent for filing suit by or against the government is there any
exception to the compliance of such conditions if yes state the circumstances. Answer according
to the subject CPC India law
ChatGPT
In India, when filing a suit by or against the government, there are specific conditions precedent
and procedures that must be followed. These conditions are outlined in the Civil Procedure Code
(CPC) under Order XXVII, Rule 1. However, there are exceptions to the compliance of these
conditions under certain circumstances. Here are the relevant provisions:

Conditions Precedent for Suing the Government (Order XXVII, Rule 1):

1. Notice to the Government: Before filing a suit against the government, a formal notice
in writing must be served to the government or the public officer concerned. This notice
should state the cause of action, the name, and place of residence of the person

149
 intending to sue, and the relief claimed. This notice allows the government to consider
the claim and potentially settle the matter without litigation.
2. Permission of the Government: After serving the notice, the person intending to sue
the government must obtain the consent or permission of the government to institute
the suit. This consent is typically granted through a formal written order.

Exceptions to Compliance with These Conditions:

There are exceptions to the compliance of the above conditions:

1. Suits for Injunction: In suits against the government seeking an injunction, the
requirement for a prior notice and permission may not be applicable. This exception
exists because in cases of urgency, immediate relief through an injunction may be
necessary.
2. Suits for Recovery of Immovable Property: In suits for the recovery of immovable
property from the government, the requirement for notice and permission may also not
be applicable. The reason for this exception is that the immovable property may be in
unauthorized possession of a government officer or department, and serving a notice on
them may be futile.
3. Statutory Exceptions: In certain statutes or laws, there may be specific exceptions to
these conditions for suits involving the government. For example, certain special laws or
provisions may outline different procedures for suing the government, and those
procedures will take precedence.

It's important to consult with a legal expert or attorney when dealing with suits against the
government, as compliance with these conditions can be complex, and exceptions may vary
based on the specific circumstances and the applicable laws. Additionally, the government may
have its own rules and regulations for handling such cases, and these should also be considered
when initiating legal proceedings against government authorities or departments.

What do you mean by ex parte degree what are the remedies available to the defendant against
whom ex parte degree is passed. Answer according to the subject CPC Indian law
ChatGPT
In Indian law, an "ex parte decree" refers to a judgment or decree passed by a court in favor of
one party when the other party, typically the defendant, has failed to appear and participate in
the proceedings. This means that the court has granted the relief sought by the plaintiff or the
party initiating the lawsuit because the defendant did not respond, attend court hearings, or
present a defense. Ex parte decrees are typically passed when the defendant has been served
notice but fails to appear or respond, and the case proceeds in their absence.

Remedies available to the defendant against whom an ex parte decree is passed under the Code
of Civil Procedure (CPC) in India include the following:

1. Application to Set Aside the Ex Parte Decree (Order IX, Rule 13): The defendant can
apply to the court to set aside the ex parte decree. The application should be made
within 30 days from the date of the decree. The court may set aside the decree if it is
satisfied that the defendant had sufficient cause for not appearing and defending the

150
 case. The defendant must provide a valid reason for their absence, such as illness or
absence from the jurisdiction.
2. Appeal: If the application to set aside the ex parte decree is not successful, the defendant
may appeal the decision. The appeal can be made to a higher court to challenge the
decree. The grounds for appeal may include improper service of notice or a lack of
opportunity to present a defense.
3. Revision Petition: In some cases, the defendant may file a revision petition before the
appropriate higher court to review the ex parte decree, especially if there are substantial
irregularities or legal errors in the proceedings that led to the decree.
4. Review Petition: If there are significant errors in the decree or if new evidence comes to
light, the defendant can file a review petition under Order XLVII of the CPC, seeking a
review of the decree. However, the grounds for a review are generally limited to errors
apparent on the face of the record or discovery of new and important evidence.
5. Filing a Fresh Suit: In certain situations where setting aside the ex parte decree is not
possible or not in the best interest of the defendant, they may consider filing a fresh suit
on the same cause of action.
6. Negotiation for Settlement: The defendant can attempt to negotiate with the plaintiff
to reach a settlement or compromise, which could lead to the withdrawal or modification
of the ex parte decree.

It's essential to consult with a legal expert or attorney to understand the specific remedies
available in your case and to determine the most appropriate course of action. The remedies
available to the defendant depend on the circumstances of the case, the reasons for their
absence, and the merits of their defense.

For what person can a commission be issued by the court under CPC 1908
ChatGPT
Under the Code of Civil Procedure (CPC) in India, a commission can be issued by the court for
various purposes, primarily to assist in the taking of evidence. The CPC allows for the issuance of
a commission in the following circumstances and for the following purposes:

1. Examination of Witnesses: The court may issue a commission to examine witnesses in a

case when it is impractical or inconvenient for the witnesses to appear in court. This could
be due to reasons such as the witness's location in a different place or jurisdiction.
2. Local Investigation: The court may order a commission for a local investigation. This is
particularly useful in cases where an on-site inspection or examination is necessary to
establish facts relevant to the case.
3. Taking of Accounts: A commission may be issued for the purpose of taking accounts.
This is common in cases involving disputes over financial transactions or disputes
between partners, where a detailed examination of accounts is necessary.
4. Making of Partition: When a case involves a dispute over the partition of property, a
commission may be issued for the purpose of effecting the partition. The court-
appointed commissioner may supervise the division of the property.
5. Sale of Property: In cases where the court has ordered the sale of immovable property, a
commission may be issued to carry out the sale. The commissioner appointed by the
court will oversee the sale process and ensure that the property is sold in accordance with
the court's directions.

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 6. Recovery of Possession: If a decree for the recovery of possession of immovable
property has been passed, a commission may be issued to take possession of the
property and hand it over to the decree-holder.
7. Issue of Letters of Request: In international cases, where evidence needs to be collected
from foreign jurisdictions, the court may issue a commission known as a "letter of
request" to a foreign court or authority to examine witnesses or obtain evidence.
8. Other Appropriate Cases: The court may issue a commission in other appropriate cases
when it deems necessary to do so in the interest of justice.

The use of a commission allows for the collection of evidence in a manner that is efficient and
convenient for all parties involved, and it can be an essential tool in ensuring a fair and just
resolution of civil cases. The specifics of how a commission is executed and the role of the
commissioner are detailed in the CPC and subject to the court's direction.

limitation bars the remedy but does not destroy the right. comment according to cpc Indian law
ChatGPT
The statement "limitation bars the remedy but does not destroy the right" is a fundamental
principle in the Indian legal system, particularly in the context of the Code of Civil Procedure
(CPC). It signifies that when a legal remedy is sought through a civil court, there is a prescribed
period within which the suit or legal action must be initiated. Failure to initiate the action within
this time frame, as per the statute of limitations, results in the remedy being barred, but it does
not extinguish the underlying legal right. Here's an explanation:

1. Preservation of Legal Rights: The principle recognizes that even if a person fails to
bring a legal action within the specified limitation period, their underlying legal right
remains intact. In other words, the right to sue or claim remains in existence.
2. Remedy is Lost, Not the Right: When the limitation period expires, the remedy to
enforce the right is lost. The person who fails to initiate the action within the prescribed
time cannot seek relief through the legal process. The court will not entertain the suit
because it is time-barred.
3. Balancing Interests: The principle strikes a balance between the interests of a person
who has a legitimate claim and the need for finality and legal certainty in litigation. It
ensures that legal disputes are resolved efficiently and in a timely manner.
4. Statutory Provisions: The concept of limitation periods is enshrined in specific statutes
or laws, and they vary depending on the type of claim or remedy sought. The CPC and
other statutes define these limitations.
5. Equitable Relief: In exceptional cases, a court may grant equitable relief if a party can
demonstrate that the delay in initiating the action was due to circumstances beyond their
control and that they acted diligently. Equity may be invoked to prevent the strict
application of the limitation period.
6. Fresh Cause of Action: In some instances, a fresh cause of action may arise, allowing a
party to initiate a new legal action. For example, if a debt is time-barred, a subsequent
acknowledgment of the debt by the debtor may create a new cause of action and restart
the limitation period.

In summary, the principle that "limitation bars the remedy but does not destroy the right"
underscores the importance of adhering to prescribed limitation periods when seeking legal

152
remedies through civil courts. While the remedy becomes time-barred, the legal right upon which
the remedy is based remains in existence. Parties must be mindful of these limitation periods to
protect their legal rights and seek timely redress in the event of a dispute.

Explain the consequences of both the parties to suit or absent on first hearing what are the
exemptions under section 133 of the act. Answer according to the subject CPC Indian law
ChatGPT
Under the Code of Civil Procedure (CPC) in India, when both parties to a suit are absent on the
first hearing, the court may proceed with the case in their absence. However, there are certain
exemptions and considerations under Section 133 of the CPC. Let's discuss the consequences and
exemptions:

Consequences of Both Parties Being Absent on the First Hearing:

1. Ex Parte Proceedings: If both parties to a suit are absent on the first hearing, the court
may proceed ex parte. This means that the court will continue with the proceedings
without the presence or participation of either party. The court may hear the plaintiff and
any evidence they present, and it may pass an ex parte decree if the plaintiff's case is
substantiated.
2. Ex Parte Decree: An ex parte decree is a decree passed by the court in favor of the
plaintiff in the absence of the defendant. This decree is not a matter of right but is based
on the court's discretion and the merits of the plaintiff's case. The defendant can later
apply to have the ex parte decree set aside under Order IX, Rule 13 of the CPC if they can
show sufficient cause for their absence.

Exemptions and Considerations under Section 133 of the CPC:

Section 133 of the CPC provides for certain exemptions when both parties are absent on the first
hearing:

1. Admission and Payment: If the defendant has appeared and admitted the plaintiff's
claim in part or paid the amount claimed, the court may pass a decree against the
defendant based on that admission or payment without further proceedings.
2. No Discretionary Proceedings: Section 133 specifically states that the court shall not
have discretionary powers to proceed ex parte when the defendant has admitted the
plaintiff's claim in full and has paid the amount claimed.
3. Applicability of Section 133: Section 133 applies to suits involving a money claim or a
claim for movable property, where the defendant has appeared and admitted the
plaintiff's claim in part or made a payment.

It's important to note that Section 133 of the CPC provides a specific exemption for cases where
the defendant has made an admission or payment. In such cases, the court is bound to pass a
decree based on the admission or payment, and there is no discretion to proceed with ex parte
proceedings.

However, in cases where there is no such admission or payment, the court has the discretion to
proceed ex parte if both parties are absent on the first hearing. The court's decision to do so

153
would depend on the facts and merits of the case and would be guided by principles of fairness
and justice.

Give the difference between set off and counterclaim in a tabular form. answer for subject cpc
ChatGPT
Here's a tabular comparison between set-off and counterclaim under the Code of Civil Procedure
(CPC) in India:

Aspect Set-Off Counterclaim

A set-off is a legal right of the defendant to A counterclaim is a claim made by the

have the plaintiff's claim against them defendant in response to the plaintiff's claim,
adjusted or set off against their own claim in seeking a relief against the plaintiff in the same
Definition the same suit. suit.

It is a defensive claim that allows the It is an independent and offensive claim brought
defendant to reduce or extinguish the by the defendant against the plaintiff, seeking a
Nature plaintiff's claim against them. positive relief.

The purpose of a set-off is to adjust the

plaintiff's claim by reducing it or even The purpose of a counterclaim is to assert a new
nullifying it, to the extent of the defendant's and independent claim against the plaintiff,
Purpose claim. which the defendant believes is justified.

A set-off can be claimed when the defendant A counterclaim can be made by the defendant
has a genuine and liquidated claim against the against the plaintiff for any claim they may
plaintiff, arising out of the same transaction or have, even if it does not arise out of the same
Applicability occurrence. transaction.

A set-off is related to and set against the A counterclaim is independent of the plaintiff's
Relation to plaintiff's claim. It is meant to reduce or offset claim and may seek separate relief from the
Plaintiff's Claim the plaintiff's claim. plaintiff.

154
 Aspect Set-Off Counterclaim

A set-off can be raised at any stage of the suit, A counterclaim must be raised in the written
including at the time of filing the written statement filed by the defendant. It cannot be
Timing of Filing statement or during the trial. raised after the written statement is filed.

The court considers a set-off as a defensive The court treats a counterclaim as an

Judicial measure to reduce the plaintiff's claim and independent suit, and it is subject to the same
Consideration grant relief accordingly. procedural rules as the original suit.

A successful set-off may result in the A successful counterclaim may result in the
reduction or nullification of the plaintiff's defendant receiving a judgment in their favor
Legal claim, and the defendant may receive a net against the plaintiff for the relief sought in the
Consequences judgment in their favor. counterclaim.

It's important to understand the distinction between set-off and counterclaim when dealing with
civil litigation, as they have different procedural and substantive implications in a legal case.

Order 39 CPC : temporary injunction and interlocutory orders

Table of Contents
• Introduction
• Nature of Injunctions
• Perpetual Injunction
• Temporary Injunction & its basic principles
o Requirements for Temporary Injunctions
o When can a Temporary Injunction be rejected
• Rules under Order XXXIX of the Code of Civil Procedure, 1908
o On Temporary Injunctions
o On Interlocutory Orders
• Conclusion
• References

Introduction
Rooted in the principles of goodwill, equity, good conscience and the legal maxim, “Ubi jus, ibi
remedium” – where there is a right, there is a remedy – an injunction is an equitable remedy where an
individual is commanded by a court – having authority over that individual – to perform or cease to

155
perform a specific action, provided, if the court were not to intervene would cause irreparable harm to
the status quo of the individuals involved in the case.

To illustrate the practicality of an injunction, it can be used to force striking workers to resume the course
of their employment during the course of the civil suit between the striking trade union and the firm
which employs members of the said trade union.

This article will be a discussion regarding injunctions with a special emphasis on the Order 39 of the Civil
Procedure Code, 1908 which highlights the procedure to grant temporary injunctions and interlocutory
orders.

Nature of Injunctions
As is the case with any legal concept, injunctions have been subjected to multiple definitions throughout
the history of jurisprudence.

Joyce defined it as “an order remedial, the general purpose of which is to restrain the commission of some
wrongful act of the party informed”.

Burney attempted to define the concept of injunction as, “a judicial process, by which one who has
invaded or threatens to invade the rights of another is restrained from continuing or commencing such
wrongful act”.

But perhaps, the definition which holistically captures the essence of injunctions is the one provided by
Halsbury who claimed that “An injunction is a judicial process whereby a party in an order to refrain from
doing or to do a particular act or thing”.

An injunction is characterized by three important notions which include the presence of a judicial
proceeding, the relief which is granted is in the form of a restraint, and lastly, that the restrained act
needs to be wrongful on the grounds of equity.

Perpetual Injunction
The other broad category of injunctions and the counterpart of temporary injunction – perpetual
injunctions – as defined by Section 37 of the Specific Relief Act, 1963 is “the decree made at the hearing
and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a
right, or from the commission of an act which would be contrary to the rights of the plaintiff”.

Temporary Injunction & its basic principles

In its essence, a temporary injunction is an interim remedy to maintain the status quo of the parties with
regards to the property in dispute during the pendency of the case. The aim of temporary injunctions in
the Indian law is to protect a party to the suit against injury by violation of his right for which he could not
be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his
favor at the trial. The aforementioned aim was highlighted in the case of M/S Gujarat Pottling Co. Ltd. &
Ors v. The Coca Cola Company & Ors. (1995).

Requirements for Temporary Injunctions

156
The case of Dalpat Kumar And Another v. Pralhad Singh And Others (1991) has settled the three main
requirements for granting a temporary injunction, they are:

1. Prima Facie Case

A suit consists of a seriously disputed question. The facts in those questions encourage the probability of
entitlement to relief for the plaintiff or the defendant. A prima facie case does not mean that the plaintiff
or the defendant come up with an irrefutable argument that will in all probability succeed in a trial. It
only means that the case they build for their injunction must be meritorious enough, not to be rejected
instantly.

2. Irreparable Loss
If an irreparable loss were to be incurred by an individual with regards to the suit before his legal right is
established in the trial, it would be a cause of grave injustice. However, it must be noted that illustrations
like frustration over a loss of something with sentimental value will not be regarded as irreparable
damage. On the other hand, things that by nature can be remedied will be considered to be irreparable
damage if the court were to have no fair or reasonable address. Very often an injury is irreparable where
it is continuous and repeated or where it is remediable at law only by a multiplicity of suits. Sometimes,
the term irreparable damage refers to the difficulty of measuring the amount of damages inflicted.
However, a mere difficulty in proving injury does not establish irreparable injury.

3. Balance of convenience
The court needs to compare the case of parties, comparative mischief or inconvenience which is likely to
sue from withholding the injunction will be greater than which is likely to arrive from granting it.

When can a Temporary Injunction be rejected

The circumstances in which a temporary injunction is granted is governed by Order 39, Rule 1 of the Code
on Civil Procedure, 1908, which will be discussed later. Thus, it becomes imperative to discuss the
instances when a temporary injunction can be rejected. This is highlighted in Section 41 of the Specific
Relief Act, 1963.

1. Restrain any person from prosecuting a judicial proceeding at the institution of the suit, in which
injunction is sought, unless restraint is necessary to prevent multiplicity of proceedings.
2. To restrain any person from instituting or prosecuting any proceeding in a Court not subordinate
to that, from which injunction is sought.
3. To restrain any person from applying to any legislative body.
4. To restrain any person from instituting or prosecuting any proceeding in a criminal matter.
5. To prevent the breach of a contract the performance of which could not be specifically enforced.
6. To prevent on the ground of nuisance, an act of which it is not reasonably clear that it will be a
nuisance.
7. To prevent a continuing breach in which the plaintiff has acquiesced.
8. When equally efficacious relief can certainly be obtained by any other usual mode of proceeding
except in case of breach of trust.
9. When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance
of the court.
10. When the plaintiff has no personal interest in the matter.

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Rules under Order XXXIX of the Code of Civil Procedure, 1908

On Temporary Injunctions

1. Order 39, Rule 1 talks about the cases in which the court may grant a temporary injunction as a
statutory relief, they are:

• In the case of property dispute, if the property in question is under a risk of being wasted,
damaged or alienated or wrongfully sold by an individual involved in the suit.
• If an individual threatened or displayed intention of removing or disposing off of his property with
a motive to defraud his creditors. This is specific to the defendant only.
• If the plaintiff is threatened – by the defendant – to be dispossessed or injured in the context of
the property dispute under question.
• If the defendant were to commit a breach of peace or contract. The aforementioned ground is
also highlighted in Order 39, Rule 2 of the CPC, 1908.
• Lastly, the court may issue an injunction if it is of the opinion that it would be an act in the interest
of justice.

2. Order 39, Rule 2-A talks about the non-compliance of an individual with regards to an injunction,
they are:

• It mandates the detainment of that individual in civil prison for not more than three months.
• Furthermore, it warrants the attachment of property of that guilty individual for not more than a
year. However, if the delinquency were to continue, the property may be sold.
• In the case of Ram Prasad Singh v. Subodh Prasad Singh (1983), it was highlighted that it is not
necessary for an individual to be a party to the concerned suit, to be liable under Order 39, Rule 2-
A of the CPC, 1908, provided it is known that he was an agent of the defendant and violated the
injunction despite being aware of the same.

3. Usually, the court is required to issue a notice to the opposite party regarding the application of
injunction, but through Order 39, Rule 3, the court can grant an ex-parte injunction when it is
under the belief that the object of the injunction would be defeated because of delay. The
Supreme Court through the case of Union of India v. Era Educational Trust (2000), laid down
certain guiding principles for courts to follow while deciding upon an ex-parte injunction, they are:

• Whether the plaintiff will be a victim to irreparable mischief by the defendant?

• Whether the weight of injustice will be heavier if an ex-parte injunction is not granted?
• Whether the timing of applying for an ex-parte jurisdiction was maliciously motivated?
• The courts will also consider the general principle of balance and irreparable loss.

4. Order 39, Rule 4 lays down that an injunction may be discharged, varied or set aside, if any
dissatisfied party makes an appeal against it, provided that:

• The application for injunction or documents advocating the same included knowingly false or
misleading statements and the injunction was granted without listening to the other party. Thus,

158
 the court will vacate the injunction. However, it can also stick with the injunction if it considers –
the reason is to be recorded – the same not be necessary in the discourse of injustice.
• Furthermore, the court may also set aside the injunction if, due to a change of circumstances, the
party against whom the injunction is granted, has suffered unnecessary hardships.

5. Order 39, Rule 5 makes an important point that, if an injunction is granted against a corporation
or a firm, the authority of the is not limited to the corporation as an entity alone, members and
officers of the corporation whose personal action it seeks to restrain are also included under its
ambit.

On Interlocutory Orders

Before we analyze the remaining rules in Order 39, we must understand the concept of interlocutory
orders. Interlocutory orders are the extension of which temporary injunctions are a part of. They are the
final hammer for the subplots that are not related to the core of a pending suit. They settle those
subordinate issues which may be necessary for deciding the outcome of the case – intangibly – and need
a swift decision because of the time-sensitivity of those issues. These orders exist to make sure that the
involved parties’ interests are not harmed during the due process of justice.

Achieving justice is the main aim of the Indian judiciary but achieving their aim in an equitable process is
also important. The latter is governed by interlocutory orders.

Interlocutory orders may take on many shapes and sizes including, but not limited to, notice to conduct
search and seizure, temporary injunction, payment into court, etc.

However, in the case of the Sub Committee of Judicial Accountability v. Union of India (1991), the
Supreme Court noted that an interlocutory order must not be passed if it were to have any inference of
pre-judging some important and delicate issue related to the main matter.

Reading Rules 6-10 of the Code on Civil Procedure 1908, will give us a proper understanding of the weight
of interlocutory orders in the Indian legal system.

1. Order 39, Rule 6 talks about the power to hold an interim sale.The court may order the sale of any
movable property being the subject matter of the suit. Furthermore, these movable properties
also include such things which are subject to natural delay and will be rendered futile if not sold
swiftly. For example, the court may order the sale of fruits and vegetables if they are a matter of
suit as they cannot be stored indefinitely and are perishable goods.
2. Order 39, Rule 7 talks about the detention or inspection of the subject matter of the suit.
Essentially, the court may order any individual to retain, preserve or inspect the property of
dispute. The court may pass such an order specific observations or experiments upon the disputed
land if it were to deem it necessary for the purpose of obtaining complete information.
3. Order 39, Rule 8 brings closure to rule 6 and 7 on grounds of equity. It claims that an order under
rule 6 and 7 will only be passed if:

• The applicant applies for the order after the institution of the suit.
• The applicant provides notice of the application to the parties involved in the suit.
• The other parties of the suit have been given a fair chance to argue against the interim order.

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 • However, the rule is subject to the exception that if the hearing would cause delay leading to the
loss of the objective of the suit.

4. Order 39, Rule 9 talks in relation to an instance if land paying revenue is the subject matter of the
suit. It speaks about if an individual neglects paying his government revenue or the rent to his
proprietor, then the court may order the sale of the land or tenure, as the case may be, to any
party interested in buying that said land or tenure. The proceeds from the sale can be used to
compensate the defaults in the payment of the rent. Furthermore, the party who was interested
in buying the property, by the decree of the court, can be compensated by the defaulter.
5. Order 39, Rule 10 talks about dispute over money or any item which is capable of delivery. If in
the dispute, a party claims to have the trusteeship of the disputed item, then the court may order
that item to be deposited in the able hands of the court until the dispute is resolved.
Module 4 full/Understanding the purview of special suits
Table of Contents
• Understanding the purview of special suits
•
• Suits by or against the government or public officers in their official capacity
• Requirement of notice ( Section 80(1))
• Suits by aliens
• Interpleader suits
o Test
o Who can file interpleader suits?
o Who cannot file interpleader suits?
o Procedure
• Arbitration
o Friendly suits
o Public nuisances and other wrongful acts affecting the public
• Conclusion
• References

Understanding the purview of special suits

SECTION SUITS IN PARTICULAR CASES/SPECIAL SUITS

Sec 79-82 Suits by or against Government or public officers in their official capacity

Sec 83-87A Suits by aliens and by or against foreign rulers, ambassadors, and envoys

Sec 87B The suit against Rulers of former Indian states

Sec 88 Interpleader

Sec 89 Arbitration

Sec 90 Special case

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 Sec 91-93 Public nuisances and other wrongful acts affecting the public

Not all suites have a uniform procedure to be followed. There are some suits that follow a different and
specific procedure as per the Code of Civil Procedure, 1908. Part IV of the Code of Civil Procedure, 1908
deals with Suits in Particular Cases. Based on the type of procedure involved, suits are categorized as Suits
in General and Special Suits. Sections 79 to 93 of the Code of Civil Procedure, 1908 (herein referred to as
‘CPC’) govern special suits and Orders 27 to 37 of CPC deal with the procedure involved in special suits.

Suits by or against the government or public officers in their official capacity

Section 79-82 of the Code deals with suits by or against the government or public officers in their official
capacity. According to Section 79 of the Code, when any suit is filed against the government, then the
government shall be referred to as defendant in the suit and likewise, if any suit is filed by the government,
then the government will be referred to as Plaintiff in the suit. However, it is pertinent to note that if any
such suit is filed either by the Central Government or against the Central Government, then the plaintiff or
defendant, as the case may be, shall be the Union of India. And, if any such suit involves State Government,
then, the party to suit will be referred to as the State.

In-state of Rajasthan v Vidyawati, the Hon’ble Supreme Court observed that in case if any wrongs are
committed by the government employees during their employment, then the government itself will be
liable for the acts committed by its employees. However, such acts must not include the sovereign powers
of the government. In Bhagchand Dagadusa vs The Secretary Of State For India on 15 August 1923, the
Bombay High Court observed it was observed by the court that the procedure to deal with suits by or
against the government is laid down under order 27 and Section 79-82 of the Code. However, those rights
and liabilities that are enforceable either against the government or by the government are not covered
by these provisions.

Requirement of notice ( Section 80(1))

In ordinary suits, i.e. suits between two or more individuals, there is no mandate to serve notice to the
defendant by the plaintiff before instituting a suit. However, Section 80 is an exception to this general rule
followed in ordinary suits. This is so because as per Section 80, the plaintiff can sue neither the government
nor against a public officer with regards to acts that are purported to be completed by the public officers
working in the official capacity. Such a suit by or against the government official can only be filed after the
expiration of the next two months of receiving the notice by the government or public official in writing.

The notices can also be served in the following offices:

1. In case if any suit is filed against the Central Government, excluding the cases of railway, a notice
shall be served to the Secretary to that Government;
2. In the case, if a suit is filed against the Central Government, involving the matters of railway, then
the notice shall be served upon the General Manager of that Railway;
3. In case when the suit is against the Government of the State of J&K, the notice shall be served upon
the Chief Secretary to that Government or any other officer authorized by that Government on that
behalf;
4. In case if a suit is filed against any other state Government, then the notice shall be served upon
the Secretary to that Government or the Collector of the district;
5. In case if a suit is filed against a public officer, then the notice shall be served upon that public
officer.

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Section 80(2) is an exception to Section 80(1) of the Code as it states that when a suit is filed for obtaining
immediate relief either against the government or any public officer working in its official capacity, then
without serving notice on the opposite party, such suit shall be filed after taking the permission of the
court. According to Section 81 of the Code, when a suit is filed against a public office due to his conduct in
his official capacity, then such public officer shall neither be arrested nor will his property be attached.
Furthermore, in case the court accepts that it is impossible for the public officer to appear before the court,
he shall be excluded from presenting himself from the court. The execution of the decree has been
explained under Section 82 of the Code. Section 82(2) strictly forbids the execution of the decree passed
under 82(1) against the public officer or government, as the case may unless the decree remains unsatisfied
for three months calculated from the date when the decree is passed.

It has been observed by the court in The State of Bihar And Anr. vs Jiwan Das Arya, that section identifies
two types of cases: Firstly, those suits are filed against the Government; wherein the notice has to be given
under all cases. Secondly, those suits filed against public officers; wherein notice is obligatory only in cases
where the suit is filed in respect of any act “purporting to be done” by such public officer in the discharge
of the public officer’s duty, and whereas not in other cases.

The importance of sending a notice under Section 80 (1) of the Code has been discussed by the Hon’ble
Supreme Court in The State Of Madras vs C.P. Agencies And Anr where it was held that the main objective
of sending a notice under section 80 before filing a suit against the concerned public official or government,
is to give a chance to the respective office or government to consider their legal position and settle the
claim made by the plaintiff if such claim seems to be proper. The government needs to make any decision
in the interest of the public after taking legal advice and revert to the public within two months. This would
not only save the public’s time and money but also help them to avoid litigation. Also, the court pointed
out that the legislative intent behind such a section is to save public money and not waste it by indulging
in unnecessary litigation.

Suits by aliens
This section discusses those cases wherein aliens will be permitted to institute a suit. According to Section
83 of CPC, the alien enemies residing in India, after seeking permission from the Central Government as
well as the alien friends are allowed to sue as if they were citizens of India. The alien enemies can file the
suit in any court competent to try a suit of a citizen. However, it is pertinent to note that the alien enemies
residing in India without permission of the Central Government or residing in a foreign country are not
allowed to sue in any court of India. Furthermore, Section 84 of the code permits the foreign state to
institute a suit incompetent court.

Section 85 of the Code states that the government shall appoint specific persons for either prosecution of
the foreign rulers or their defense. Here, the term ‘Government’ ideally refers to the Central Government.
Such appointed persons shall be deemed to be the recognized agents working on behalf of the foreign
rulers. Section 86 further deals with those suits that are instituted against foreign rulers, ambassadors, and
envoys whereas Section 87 states the style or patterns of such foreign rulers as parties to suit. According
to this provision, it is specified that the ruler of a foreign state can both sue as can be sued, however in the
name of their state. For a better understanding of the terms Foreign State and Ruler, reference must be
given to Section 87A that provides its definition. Any state which is outside the boundaries of India but at
the same it is recognized by the Central Government, then such state shall come under the purview of
‘Foreign State’ and whereas the person acting as the head of the Foreign State, appointed and recognized
by the Central Government, is a Ruler. Section 87B of the Code provides suits instituted against rulers of
Former Indian States that means when any suit is instituted by the state which depends upon a cause of
action that arose before the origination of the Indian Constitution, then the aforesaid provisions (Section
85 and Section 86) will be applied with respect to such ruler of former India states.

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Interpleader suits
Section 88 of CPC, 1908 provides for interpleader suits. The word ‘To Interpleader’ implies ‘to litigate with
each other to settle a point concerning the third party. The procedure to institute an Interpleader Suit is
given under Order 35 of CPC, 1908. An interpleader suit is defined as a suit wherein no dispute is between
the parties; namely the plaintiff and the defendant, but the dispute is actually between the defendants
themselves, who inter-plead against each other. One can differentiate between an original suit and an
interpleader suit as the former is a dispute between plaintiff and defendant whereas the latter is between
defendants. In such types of suits, the plaintiff is least attentive towards knowing the subject matter of the
suit. However, the plaintiff in such a suit must be in a position of impartiality/ non-arbitrariness.

The reason behind filing an interpleader suit is to get the claims of rival defendants adjudicated. In the case
of Groundnut Extractions Export Development Association vs State Bank Of India, “the interpleader suit
was understood as a process wherein the plaintiff calls upon the rival claimants to appear before the court
and get their respective claims decided. The decision of the court in an interpleader suit affords indemnity
to the plaintiff on payment of money or delivery of property to the person whose claim has been upheld
by the court”.

Test

To decide whether a suit is an interpleader suit or not, the court must specifically look into the prayer
clause in the plaint. In Groundnut Extractions Export Development Association vs State Bank Of India, the
court opined that “A suit does not become an interpleader suit merely because the plaintiff requires the
defendants to interplead with each other as regards one of the prayers in the plaint”.

Who can file interpleader suits?

In National Insurance Co. Ltd. vs Dhirendra Nath Banerjee And Anr, it was observed that one can file an
interpleader suit in case there exists two or more than two individuals claiming adversely to one another
for some debt, money, movable property, or immovable property, from a person who does not claim any
interest therein expect the charges and costs incurred by him that person is also ready to pay the same to
the rightful claimant. In simple terms, an interpleader suit can be filed by: Any person who has no interest
in any debt, money, or, other property (movable or immovable), the person excludes the charges and costs
incurred by him and lastly that person is also ready to pay the debt, money, or, other property to the
rightful claimant.

Who cannot file interpleader suits?

Order 35, Rule 5 of the CPC, 1908 provides that, neither an agent can sue his principal, nor a tenant can
sue his landlord to compel the principals and landlords to interplead with persons other than persons
claiming through these principals and landlords.

Procedure

The procedure to file an interpleader suit is given under Order 35 CPC. 1908. Order 35 Rule 1, 1908 provides
that the interpleader must particularly mention in his plaint that,

(i) The plaintiff do not claim any interest in the subject matter of the dispute except the costs and charges

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(ii) The claims that are mentioned by the defendants severally

(iii) No collusion is observed between the plaintiff and any of the defendants.

Apart from the aforementioned claim, the interpleader can also mention other statements as well.

• Order 35, Rule 2 of CPC, 1908, gives the court discretionary power whereby if a thing is claimed and
it is capable of being paid into the court, then, the plaintiff has to deposit such an amount or thing
before the court. In case, such a thing is a property, then the property shall be placed in court.
• Order 35, Rule 3 of CPC, 1908 provides that in an interpleader suit if any of the defendants sue the
plaintiff with regards to the subject matter of the suit, then in such case, the court where the suit
is instituted against the plaintiff is pending, will stay the proceedings in that suit as against the
plaintiff.
• Order 35, Rule 4 of CPC, 1908 gives the court discretionary power to declare at the first hearing
itself, the fact that the plaintiff is discharged from all liabilities and award the plaintiff his costs and
dismiss him from the suit. But, in case the court believes that to uphold justice, propriety, and
convenience, the inclusion of all parties (plaintiff and defendant) to the suit be retained, then, the
court in such will not discharge the plaintiff till the final disposal of the suit.
• Order 35, Rule 5 of CPC, 1908 states that the agents, as well as the tenants, won’t be permitted to
file an interpleader suit against their principles or landlords respectively.
Arbitration
Section 89 of the CPC, 1908 provides for the settlement of disputes outside the courts. It is one of the most
important provisions given in the Code, This section makes it necessary for the parties to resolve their
disputes falling under the domain of civil litigation through the mechanisms of Alternative Dispute
Resolution. In cases where the court observes that there is the existence of such elements of a settlement
acceptable and favorable to both parties, then the court refers to such cases for arbitration, conciliation,
Lok Adalat, or mediation. Section 89(2) provides the procedure followed in different mechanisms of
Alternative Dispute Resolution i.e. arbitration, conciliation, Lok Adalat, or mediation. In case the parties to
suit are unable to resolve their dispute by using the modes of ADR, the matter will then continue in the
same court in which such a suit was instituted earlier. For further reading click, refer to this link
(https://bit.ly/2QEfXjT).

Friendly suits

A special type of suit namely a friendly suit is defined under Section 90 of the CPC and Order 36 lays down
its procedure. It is a special kind of suit wherein the plaintiff and defendant do not approach the court and
the plaintiff in such suits does not present a complaint. The procedure used in ordinary civil litigation is
different from that in friendly suits. The parties in friendly suits are concerned about the decision on any
question of fact or law. For determining the question of law or question of fact, both parties agree in writing
whereby they state these questions similar to the manner a case is filed. The same is done to obtain the
opinion of the court. The court may decide the question if it is satisfied that such a question is fit to be
decided. Order 36 Rule 1-6 lays down the procedure for special cases or friendly suits.

According to Order 36 Rule 1, certain conditions are to be satisfied for the case to qualify as a friendly suit
under Section 90 of CPC.

1. The agreement must be duly executed between the plaintiff and defendant.

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 2. The case is fit to be decided.
3. Plaintiff and Defendant have a bonafide interest in the question so asked.
It is important to note that as a decree passed in a friendly suit under Section 90 is like a compromise
decree, henceforth the same is not appealable.

Order 36, Rule 2 of CPC, 1908 provides that in cases where the agreement pertains to the delivery of
property, or it involves a case where one party is stopping the other party from doing an act, then in such
cases, it is compulsory to state in the agreement the estimated value of the property that needs to be
delivered, or in other case expected value of the act mentioned hereinabove. Furthermore, as per Rule 3,
if such an agreement is made following all the rules laid down in Order 36, then it shall be filed along with
an application before the court having territorial and pecuniary jurisdiction to deal with it. The said
application will be treated as a suit following which notice shall be served upon the parties to the
agreement, however excluding the party who originally made the application in the court. Rule 4 and Rule
5 deal with the jurisdiction of the court and hearing and disposal of the case respectively. Order
37 summary suits and Order 33 suits by indigent persons are also covered under the purview of special
suits.

Public nuisances and other wrongful acts affecting the public

Section 91 deals with suits concerning public nuisances and any other wrongful acts affecting the public. It
states that in the case when public nuisance or any wrongful act that is harming the public at large is
observed, then an Advocate General can file a suit for declaration and injunction shall be made. Even two
or more two persons can institute a suit against such nuisance even if no harm is caused to them with the
permission of the court.

Section 92 deals with suits instituted in the case of public charities. According to this provision, if any
express or constructive trust is created for public use having a religious or charitable nature is likely to have
been breached, or otherwise requires the direction of the court for the purpose of administering the trust,
then in such an Advocate General or two or more than two persons possessing an interest in the trust can
institute a suit before the principal civil court having original jurisdiction or in any other court. The suit shall
be filed to attain decree for various reasons like; appointment of a new trustee, removal of any trustee,
direction of accounts and inquiries, settling scheme, or granting relief as mentioned in the section.

Conclusion
We have discussed several cases which come under the purview of special suits. Each special case
enumerates its own imperative features. Under Section 79 of the code, the plaintiff has to keep in mind
that he is required to serve notices upon the Government or any public officer before instituting suit against
them. Section 89 of the code talks about Alternative Dispute Resolution under Civil litigation. The
conflicting parties can easily resolve their dispute by utilizing this provision. This will not only save litigation
costs and time for the parties but also save the court’s crucial time. One of the very interesting suits which
have been discussed includes the friendly suit under Section 90 of the Code. The fascinating part of this
special kind of suit is that neither the parties approach the court nor the plaintiff presents a plaint. Suits
concerning public nuisances and other wrongful acts affecting the public have also been discussed. These
special suites have a crucial role to play as they involve public interest. The decisions made in these suits
have an impact on the public at large. Hence, all such cases falling under the purview of special suits are of
great significance and so are defined extensively in the Code.

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