ALANGE’S LAW CLASSES, SOLAPUR S, Subject:- CIVIL PROCEDURE CODE JMFC / CJJD (Mains) Notes Prof.V. S. Alange. Prof. Amit. V. Alange M.A.LL.M LL.M, M.S.W Cell:- 9422067025 Cell:- 9423593437 Address:- First Floor, Muley Complex, Gold Finch Peth, Near DCC Bank, Solapur Email:- amitalange@gmail.com Scanned with CamScannerJMFC MAIN CIVIL PROCEDURE CODE ALANGES LAW CLASSES,SOLAPUR SUBJECT: CIVIL PROCEDURE CODE Definitions: (Sec.2) Decree:- Decree means a formal expression of an adjudication which, so far as regards the court expressing it, conclusively determines the rights of the parties with regard to all ot any of the matters in controversy in the suit and may be either preliminary or final but shall not include:~ a) Any adjudication from which an appeal lies as an appeal from an order or b) Any order of dismiss for default/It shall be deemed to include the rejection of a plaint & determination of any question Under Sec. 144. Essen: ials of Decre In order that a decision of a court may be a decree the following elements must be present:- 1) There must be an adjudication i. judicial determination of the matter in dispute 2) Such adjudication must have been given in a suit whic Petitions, applications under Arbitration Act, etc. 3) It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit. 4) Such determination must be of a conclusive nature i.e. such determination must be final as regards the court which passes it. 5) There must be a formal expression of such adjudication i.e. all the requirements of form of decree must be complied with, includes Hindu Marriage Classes of Decree:- ‘The C.P.C. recognizes the following three classes of decree- a) Preliminary decree- Where an adjudication decides the rights of the parties with regard to all of any of the _ ‘matters in controversy in the suit, but does not completely dispose off the suit, it is a preliminary decree. sgt b) Final decree- A final decree is one which completely dispose off the suit and finally seta al the questions in controversy between the parties and nothing further remains to be decided thereafter. Aas obras ¥ Scanned with CamScannerJMEC MAIN CIVIL PROCEDURE CODE ©) Partly pretim: ary and Partly Final Decree- 5 A decree may be partly preliminary and partly final. e.g. In a suit for possession of Immovable property with mesne profits, the court- 1) Decree’s possessions of the property and oa wa 2) Directs an enquiry into the mesne profits Decace i> Partly Pilirchage | The former part of the decree is final, while the latter part Preliminary and partly fina ” 2) Ord Order means the formal expressions of any decisions of a civil court which is not a decree. Thus the adjudication of a court, which is not a decree is an order. ‘There are some common elements in decree and order:- 1) Both relate to matters in controversy , 2) Both are decisions given by court. 3) Both are adjudication of a court of law. 4) Both are formal expression of a decisions, Distinction between Decree and order: 1) A decree can only be passed in a suit, which commenced by presentation of plaint. An order may originate from a suit or a petition o¥an application. 2) A decree is an adjudication conclusively determining the rights of the parties with regard to all or any of the matters in controversy. ‘An order may or may not finally determine such rights. 3) A decree may be preliminary or final or partly preliminary and partly final. But there cannot be a preliminary order. 4) Inevery suit there can be only one decree generally, 4 But number of order may be passed. 5) Every decree is applicable a potable But every order is not appealable, only those orders specified in order 43 of C.P.C. are appealable. 6) A second appeal lies on certain grounds from the decree passed in first appeal While no second appeal lies in case of applicable orders. ; appeane ’ 3) Judgment:- / Judgment means the statement & given by the judge of the grounds of a decree or order. Judge means the presiding officer of a civil court. The essential element of Judgment is | Scanned with CamScannerJMEC MAIN CIVIL PROCEDURE CODE A concise statement of the case. b) The points for determination. ©) The decisions thereon, and ) The reasons for such decision. between Judgment and Deere Judgment means the statement given by the judge of the grounds of a decree or order. Thus a judgment is a prior stage to passing of a decree or an order and after the pronouncement of the judgment, a decree shall follow. Thus decree is prepared only after pronouncement of judgment. Thus judgment and decree are not similar. In simple words, decree is the speaking part of the Judgment. Generally Judgments consist of Decree (preliminary and Final), orders ete which are basically adjudicatory in nature. A decree is what the court orders a party to do. A decree would be something like ordering a party to pay money or perform a contract etc. It is the determination of the rights and liabilities of the parties to a case. A judgment is the reasoning given by the judge as to why the decree was given. A judgment explains the legal reasoning that formed the basis for the decree, along with the case law cited, arguments given by counsel, and the conclusions reached from the same. id Judgment debtor:. 4) Decree holder Decree holder means any person in whose favour a decree has been passed or an order capable of execution has been made. The decree holder need not necessarily be the plaintiff. Judgment debtor means any person against whom a decree has been passed or an order capable of execution has been made. Where the decree is passed against a surety he is also a judgment debtor. ‘S)Legal Representative: Scanned with CamScannerALANGE'S LAW CLASSES, SOLAPUR IMEC MAIN CIVIL PROCEDURE CODE Executors, Administrators, Hindu co-parceners,ete. But a trespasser is not a legal representative. Similarly a succeeding trustee, official assignee or receiver are not legal representatives. ©)Mesne Profit Mesne profits of property means those profit which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession. Every person has a right to posses his property and when he is deprived of such right by another person, he is not only entitled to receive possession of the property, but also damages for wrongful possession from that person. This the object of awarding a decree for mense profits is to compensate the person who has been kept out of possession and deprived of enjoyment of his property even through he was entitled to possession of property. DForeign court and Judgm Foreign court means a court situate outside India and not established by the authority of the central Govt. ‘Two conditions must be satisfied in order to being a court within the definition of a foreign court. a) It must be situate outside India and 'b) It must not have been established by the Central Govt. Thus the courts in England and other countries and privy council also are treated as Foreign Courts. Foreign Judgment means a judgment of Foreign court. The important point to determine whether the Judgment is of a Foreign Court or not is the date of judgment and not the date when it is sought to be executed, 8)Public Office Public Officer means a person falling under any one of the description mentioned in the definition like- i Scanned with CamScannera) Every Judge b) Every member of an all India service, | ©) Every Gazetted Officer in the Military,Naval or Airforees of the Union. | 4) Every officer in the service or pay of the Govt. or remunerated by fees or commission for the performance of any public duty ete. | ‘Thus a minister, a receiver, a Govt. peader, etc are also declared as Public Officers. But a chairman of Municipality, a Mayor of corporation, Municipal commissioner etc. are not Public Officers. | il Courts + Jurisdiction of Jurisdiction may be defined to be the power or authority of a court to hear and determine a cause,to adjudicate and exercise any judicial power in relation to it. Kinds — 1) Territorial Jurisdiction — Every court has its own local or territorial limits beyond which it cannot exercise its Jurisdiction. e.g. The District Judge has to exercise jurisdiction within his district and not outside it, 2) Pecuniary Jurisdiction:- ‘A court will have the jurisdiction only over those suits , the amount or valve of the subject matter of which does not exceed the pecuniary jurisdiction. e.g. Civil Judge Junior Division have jurisdiction only over those suits in which the value of the subject matter is below Rs.{500,000/-. Civil Judge Senior Division have power and jurisdiction to try all original suits that is even above the value of Rs. 00,000/- and there u " is no upper limit. 3) Jurisdiction as to subject matter- Different courts have been empowered to decide to different types of suits depending ‘upon the nature of or subject matter of suit . iction to try the matters like petition for divorce, judicial e.g. Family Courts have j separation, maintenance ,etc. 4) Original and Appellate Jurisdiction- In the exercise of original jurisdiction, a court entertains and de Scanned with CamScannerf \W CLASSES, SOLAPUR {IMEC MAIN CIVIL PROCEDURE CODE Civil Judge Junior Division and Civil Judge Senior Division has given power go exercise original jurisdiction, In exercise of appellate Jurisdiction, the courts entertain and decide appeals. District Court or High Court can entertain and decide appeals. a suit of Civil Nature jurisdiction of Civil Court as specified in (sec.9) or “Court to ti unless barred” ~ Explain ? Under C.P.C., a Civil Court has a jurisdiction to try all suits of civil nature unless they are barred. According to sec.9 “ The Court shall have jurisdiction to try all suits of civil nature ‘except suits of which their cognizance is either expressly or implied barred.” Conditions- A Civil Court has jurisdiction to try a suit , if two conditions are fulfilled- 1) The suit must be of a Civil Nature. 2) The cognizance of a such suit should not have been expressly or impliedly barred. Expanation- 1) Suit of a Civil Nature It means suits relating to the private rights and remedies of a citizen as guished from criminal , political etc. Thus a suit is of a civil nature if the principal question there in relates to the determination of a civil right and enforcement thereof. It is not the status of the parties to the suit but subject matter of it which determines whether or not the suit is of civil nature. The expression suit of civil nature will cover private rights and obligations ofa citizen. The following are the suits of a civil nature: a) Suits relating to right to property. b) Suits for damages for torts. c) Suits for damages for breach of contract, ete The following are not the suits of a civil nature:- ) Suits involving cast questions. b) Suits involving religious rites or ceremonies. ©) Suits involving dignity or honour ete. 2) Cognizance not barred:- | A litigant having a claim of a civil nature has a right to institute a eivil suit unless its cognizance is barred either expressly or impliedly:= | Scanned with CamScannerIMEC MAIN CIVIL PROCEDURE CODE a) Suits expressly barred:- A suit is said to be expressly barred when it is barred by any enactment for the time being in force. The matters falling within the exclusively jurisdiction of Revenue Courts, Labour Courts, Co-operative Courts, Motor Accident Claims Tribunal etc. are expressly barred from the cognizance of a civil court. b) Suits impliedly barred:- A suit is said to be impliedly barred when it is barred by general principles of law. Certain suits are barred on the ground of public policy. No suit shall lie for recovery of costs incurred in criminal prosecution, or for enforcement of right upon a contract hit by section 23 of the Contract Act etc. easily inferred:- Exclusion of, jurisdiction not, A litigation having a grievance of a civil nature has, independent of any statute, a right to institute a suit in a civil court unless its cognizance is either expressly or impliedly barred. The exclusion of the jurisdiction of a civil court is not to be readily inferred and such exclusion must be clear. Again, even when the jurisdiction of a civil court is barred, either expressly or by necessary implication, it cannot be said that the jurisdiction is altogether excluded. A court has jurisdiction to examine whether the provisions of the act and the rules made thereunder have or have not been complied with, or the order is contrary to law, malafide, ultra vires, perverse, arbitrary, ‘purported’, violative of the principles of natural justice, or is based on ‘no evidence’ and so on. In all these cases, the order cannot be said to be under the act but is de hors the act and the jurisdiction of a civil court is not ousted. * Res-subjudice and Res-judicata Res-subjudice or stay of suit (sec.10):- The object of sec.10 is to prevent the courts of concurrent jurisdiction from simultaneously entering and adjudicating upon two parallel litigations in respect of the same cause of action, the same subject matter and same relief. Conditions:~ 1) There must be two suits, a) Previously instituted and the other. b) Subsequently instituted . Scanned with CamScannerALANGESLAW CLASSES, so¥upUR ig ——_gCMAIN IVIL PROCEDURE cove 2) The matter in issue in the subsequent suit must be directly and substantially in issue in the previous suit . 3) Both the suits must be between the same parties or their representatives. g in any court in India. 4) — The previously instituted suit must be pen 5) The court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the subsequent suit. 6) Such parties must be litigating under the same titles'in both the suits, 1 As soon as the above conditions are satisfied the court cannot proceedigg in the 1 subsequent suit can be meat any stage of suit ctayed Res-Judicata (See. 11) Meaning :~ The word Resjudicata is not defined by C.P.C. but it means a final judicial decision Pronounced by a Judicial Tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto. Object :- The doctrine of Resjudicata is based on three maxims :- 1) Noman should be vexed twice for the same cause. 2) Iti in the interest of the State that there should be an end toa litigation and 3) A judicial decision must be accepted as correct. After considering all these principles, it is clear that the subsequent suit must be dismissed if that issue has been heard and finally decided by the competent court in a previous suit. Section- 11 :- No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former Suit, between the same parties or between parties under whom they or any of them claim, litigation under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised and has been heard and finally decided by such court, | Scanned with CamScannerALANGE'S LAW IMEC MAIN CIVIL PROCEDURE CODE Essentials of Resjudicata :- 1) The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was directly and substantially in issue, either actually or constructively, in the former suit. ‘The former suit must have been a suit between the same parties or between parties under whom they or any of them claim. 2) 3) Such parties must have been litigating under the same title in the former suit. 4) The court which decided the former suit must be a court competent to try the subsequent suit 5) The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by the court in the former suit. There are two kinds of Resjudicata :- 1) Actual: In order that a matter decided in a former suit may operate as res-judicata in a subsequent suit, it must have been directly and substantially in issue in the former suit a actuall eg. : A’ sues ‘B’ for the rent due. The defense of ‘B’ is that no rent is due. The suit was dismissed. No fresh suit can be tried in respect of the same claim of rent due, because it operates as actual res-judicata. 2) Constructive:- The rule of actual resjudicata is limited to a matter actually in issue but the rule of constructive resjudicata is an artificial form of resjudicata and provides that if a plea or defense could have been taken by a party in a proceeding between him and his opponent, he should not be permitted/allowed to take that plea or defense against the same party in a subsequent proceeding with reference to the same subject matter. eg, : ‘A’ sues ‘B’ for the possession of property on the basis of ownership. The suit is dismissed. ‘A’ cannot thereafter claim possession of property as mortgagee or lessee because such a ground ought to have been taken in the previous suit and it operates as a constructive resjudicata, Distinction between Res-subjudice and Res-judicata : 1) See. 10, relates to a matter pending judicial inquiry or trial. Sec. 11, relates to a matter already adjudicated, Scanned with CamScanneri] Mi 2) Sec. 10, bars the trial of a suit in which the matter directly and substantially in issue is pending adjudication in a previously instituted suit. IGE'S LA\ SES, SOLAPUR 10 JMEC MAIN CIVIL PROCEDURE CODE Sec. 11, bars the trial ofa suit or an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit. 3) The effect of Sec. 10 is the stay of the trial of the subsequently instituted suit. The effect of sec. 11 is the dismissal of subsequent suit. ta (See. 13) := Foreign Judgment and Res- A Foreign judgment shall be conclusive as to any matter there by directly adjudicated upon between the same parties under whom they or any of them claim litigating under the same title, except :- 1) Where it has not been pronounced by a court of competent jurisdiction. 2) Where it has not been given on the merits of the case. 3) Where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable. 4) Where the proceeding in which the judgment was obtained are opposed to natural justice. 5) Where it has been obtained by fraud. 6) Where is sustains a claim founded on a breach of any law in force in India. * Place of Suing (Sec. 15 to 20) The jurisdiction ofa court to entertain, deal with and decide a suit may be restricted by 4 variety of circumstances and the first thing which is to be determined is the place of suing. Section 15 to 20 regulate the Forum for the institution of suits. According to Sec. 15, every suit shall be instituted in the court of the lowest grade competent to try it. The object of this provision is that the courts of higher grades shall not be over burdened with suits. This section refers to pecuniary jurisdiction of the court, Suits, the subject matter of which is valued to Rs. 5,00,000/- be entertained by the lowest court i.e. Civil Judge Junior Divison, If the value of suit exceeds Rs.5,00,000/- Civil Judge Senior Division have jurisdiction to entertain the suit. Scanned with CamScanner1a ES, SOLAPUR The provision of C.P.C. relating 11 JM IVIL PROCEDURE CODE to the place of suing may be explained by the following chart. Sr Nature of Suit Sr. Place of Suing 1 Suits for :- Le Court within whose jurisdiction the immovable See oe property is situate. ) Partition of, ©) Foreclosure, sale or redemption of mortgage, or charge upon. 4) Determination of any other right to, or interest therein, ensod m f ©) Compeaien for wrong to | immovable property. | 2: Recovery of movable | 2. Court within whose property under actual jurisdiction the movable | distraint or attachment. property is situate, | 3. a) Relief respecting, or Ey Court within whose | i jurisdiction, | b) Compensation for wrong | to immovable property held a) The property is situate or fendant. Began b) The defendant resides or carries on business or personally works for gain. a a) Relief respecting, or 4 Court within. whose r jurisdiction properts-ofthe| b) a for wrong any postion situate mnt een Poonet proce™y situate within the jurisdiction , of different courts. % Where it is uncertain within | 5. ‘Any of those courts, the jurisdiction of which two or more courts any immovable sles, sos Scanned with CamScannerJIMEC MAIN CIVIL PROCEDURE CODE LAPUR 2 i aT situate, 6 ‘Compensation for wrong to | 6. In either of the court at the option of the plaintiff. a) Person or 7 b) Movable property If the wrong is done within the jurisdiction of one court and the defendant resides or carries on business or personally works for gain within the jurisdiction of another court, a) Where the cause of action wholly or partly arises or b) The-defendant resides, carries on business or personally works for gain or, 7. ‘Any other suit 7 ©) Where there are two or more defendants, where any one of them resides, carries on business or personally works for gain, Institution of a suit :- Every suit must be instituted by the presentation of a plaint. A plaint must be presented to the court or such officer as it appoints in that behalf. Thereafter the particulars of a suit will be entered by the court in a book (Suit register) kept for the said purpose, called the register of Civil Suit. Parties to a Suit (Order[:- J Order I deals with the subject of parties to suits and relating to joinder, misjoinder and non-joinder of parties and also joinder of causes of action. Joinder of Parties :- The question of joinder of parties may arise either as regards the plaintiffs or as regards the defendants. Scanned with CamScannerALANGE’S LAW CLASSES, 13 JME PROCEDURE CODE | | 1) Joinder of Plaintiffs : All persons may be joined in one suit as plaintiffs, if the following two conditions are statisfied — a) The right to relief alleged to exist in each plaintiff arises out of the same act or transaction and, b) _If such persons brought separate suits, an common question of law or fact would arise. 2) Joinder of Defendant : All persons may be joined in one suit as Defendants, if the following two conditions are satisfied : a) The right to relief alleged to exist against them arises out of the same act or transaction and b) The case is of such a character that if separate suit were brought against such persons, any common question of law or fact would arise. If plaintiff may join in one suit all or any of the persons severally, or jointly and severally liable on any contract. Similarly where the plaintiff is in doubt as to the person from whom he is entitled to obtain redress (remedy), he may join two or more defendants in one suit. Where it appears to the court that any joinder of plaintiffs or defendants may cause delay the trial of the suit, it may pass an order regarding separate trials. The court may give judgment for or against one or more of the plaintiffs as may be found entitled to relief, or for or against one or more of the defendants as may be found to be liable. Necessary and Proper Partie A necessary party is one whose presence is indispensable to the constitution of the suit, against whom the relief is sought and without whom no effective order can be passed. A proper party is one in whose absence an effective order can be passed but wl Presence is necessary for a complete and final decision on the question involved proceedings. eo E.g, Ina suit for partition, all shares are necessary partis. a A subtenant is only a proper party in tenant. ‘a i Scanned with CamScanner\W CLASSES, SOLAPUR JMEC MAIN CIVIL PROCEDURE CODE Non-Joinder or Mis-Joinder of Parties :- sssary oF proper party to a suit has not been joined as a der. Where a person, who is ne Party to the s it is case of non- If two or more persons are joined as plaintiffs or defendants in one suit in contravention of the above rules, it is a case of mis-joinder of parties. The general rule is that a suit cannot be dismissed only on the ground of non-joinder or mis-joinder of parties, but this rule does not apply in ease of non-joinder of a necessary party. Alll objections on the ground of non-joinder or mis-joinder of parties must be taken at the earliest opportunity otherwise they will be deemed to have been waived. « Representative Suit (Order No.1, Rule 8) When there are number of persons similarly interested in a suit, one or more of them can with the permission of the court or upon a direction from the court sue or be sued on behalf of themselves and others. ‘Thus representative suit may be defined as, “It is a suit by or against one or more persons on behalf of themselves and others having the same interest in the suit”. The object of this provision is to facilitate the decision of questions in which a large body of person are interested without recourse to the ordinary procedure to avoid numerous suits being filed for decision of a common question, this rule has enacted. Conditions:- To apply this rule, the following conditions must exist:- 1) The parties must be numerous. 2) They must have the same interest in the suit. 3) The permission must have been given by the court and 4) Notice must have been issued to the parties whom it is proposed to represent in the suit. Generally public notice is issued for this purpose. Striking out, adding or substituting of parties 1) _ Addition or substitution of plaintiffs: | ; | } If the plaintiff discovers that he cannot get the relief, he seeks without joining some other person also as a plaintiff or where it is found that some other person and not the original Scanned with CamScannerALANGE’S LAW CLASSES, SOLAPUR 5 JMEC MAIN CIVIL PROCEDURE CODE plaintiff is entitled to the relief as prayed for, an application for addition or the substitution of the plaintiff can be made if following conditions are satisfied :- | ‘The suit has been filed in the name of a wrong person as plaintiff bonafied mistake. a) b) The substitution or addition of the plaintiff necessary for the determination of the real matter in dispute. 2) Striking out or Adding of Parties :- ow exe. ‘The court is employed to add any person as a party to the suit on either of the two grounds:- a) That he ought to have been joined as a plaintiff or a defendant and is not so joined or b) That without his presence, the questions involved in the suit cannot be completely decided. ISSUE AND SERVICE OF SUMMONS (See. 27 to 29) & ORDER V :- of Summons:- ‘A Summons is a document issued from the office of a court, calling upon the person to whom it is directed to attend before a judge or officer of the court for a certain purpose. | | Meat Summons to defendant:- When a suit has been duly filed by presentation of a plaint, the court must issue summons to the defendant calling upon him to appear on a day specified therein and answer the claim of the plaintiff. Essential of Summons:- Every summons shall be signed by the judge or such officer appointed by him and shall be sealed with the seal of the court and must be accompanied by a plaint. Appearance of Defendant:- A Defendant to whom a summons has been issued, mé 1) Inperson, or 2) By a pleader duly Scanned with CamScannerv JRE CODE ALANGE’S LAW CLASSES, SOLAPUR 16 JMC MAIN CIVIL PROCEDU! Exemption from appearance in person No party shall be ordered to appear in person:- 1) Unless he resides its of the jurisdiction of court or a) Within the local Outsidev such limits but at a place less than fifty miles or 200 miles (where public b) conveyance is available) from the court house or 2) Who is a women not appearing in person or 3) Who is entitled to exemption from personal appearance U/s. 133 of C.P.C. like public servant. Contents of Summons:~ ‘The summons must contain a direction whether the date fixed is for settlement of sues only or for final disposal of the suit. In the later case, the defendant should be directed to produce his witnesses The court must give sufficient time to the defendant to enable him to appear and answer the claim of the plaintiff on the day fixed. The summons should also contain an order to the defendant to produce all documents in his possession upon which he intends to rely in support of his case. Mode of service of summons:- The service of summons may be personal of substituted :- 1) __ Personal or direct service :- Following are the principles of personal servic a) The summons must be served to the defendant in person or to his authorised agent. b) Where the defendants is absent, the summons may be served on any adult member of the defendants family residing with him ©) Ina suit relating to any business or work against a person, it may be served to the ‘manager or agent carrying on such business or work. d) Ina suit for immovable property, if the service of summons cannot be made on defendant personally, the service may be made on any agent of the defendant incharge of the property. e) _ Where there are two or more defendants, service of summons should be made on each defendant, Scanned with CamScannerALANGE’S LAW CLASSES, SOLAPU! 7 JMEC MAIN CIVIL PROCEDURE CODE Service of summons should be made by delivering a copy of summons to defendant or his agent. The serving officer must make endorsement on the original summons regarding service of summons. 2) Substituted Service :- It means the service of summons by a mode which is substituted for the ordinary mode of service of summons. a) Where the defendant refuse to sign acknowledgment or cannot found, the service of summons can be made by affixing a copy on the outer door or some other conspicuous part of house in which the defendant ordinarily resides or carries on business or personally works for gain. b) Where the court is satisfied that the defendant avoids service or for any reason the summons cannot be served in the ordinary way, the service may be effected 1) By affixing a copy of summons in conspicuous place in the court house and also upon the house, Where the defendant last resided, carried on business or personally work’s for gain or 2) In such a manner as the court thinks fit like an advertisement in news paper. Effect of Substituted Service:- A plaintiff is usually allowed by a substituted service order to serve by registered post or ordinary post. The summons server's affidavit in a substituted service application usually says that he or she has “made local enquiries as to whether the defendant is in fact residing at the address in question”. Thus effect of substituted service means good service of summons. 3) Service by post :- Rule 19 A added by Amendment Act 1976 Provides for the simultaneous issue of service of summons in the ordinary manner and also by R.P.A.D. Scanned with CamScannerIGE’S LAW CLASSES, SOLAP! 18 * Pleadings (Order 6) :- Meaning :- Pleading is defined as Plaint or Written Statement According to Mogha “Pleadings are statements in writing drawn up and filed by each Party to a case, stating what his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case is answer” Plaint :- A plaintiffs pleadings is his plaint a statement of claim in which the plaintiff sets out his cause of action, with all necessary particulars. Written Statement :- A defendants pleading is his written statement a defence in which the defendant deals with every material fact alleged by the plaintiff in the plaint and also states any new facts which tell in his favour, adding such legal objections as he wishes to take to the claim. Objects of Pleadings :- The whole object of pleadings is to bring parties to definite issues and to diminish expenses and delay and to prevent surprise at the hearing. A party is entitled to know the case of his opponent so that he can defend it. The sole object of pleading is to ascertain the real disputes between the parties, to narrow down the area of conflict and to see where the two sides differ, to preclude one party from taking the other by surprise and to prevent miscarriage of justice. Fundamental Principles of Pleadings :- Following are the four fundamental principle of pleadings dD Facts and not law :- Pleadings should state facts and not law, It is the duty parties to state only the facts on. which they rely for their claims. It is for the court to apply the law to the facts pleaded. Exg. Existence of a custom or usages is a question of fact which must be specifically pleaded. But a plea about maintainability of the suit raises a question of law and need not be pleaded. 2) Material facts only : The second principle of pleadings is that they should contain a statement of material facts and material facts only. The expression “Material Facts” has not been defined by the Civil Procedure Code but it means all facts upon which the plaintiffs cause of action or the Scanned with CamScanner JMEC MAIN CIVIL PROCEDURE CODE ( h \Ww 19 MAIN CIVIL PROCEDURE CODE defendants defence depends, In other words, material facts means all those facts which must be proved in order to establish the plaintiffs right to relief claimed in the plaint or the defendant defence. Itis the duty of a lawyer to collect material facts from the entire record and plead only material facts. 3) Facts and not Evidence :- The third principle of pleadings is that the pleadings should contain a statement of ‘material facts on which the party relies but not the evidence by which those facts are to be proved. When a state of facts is relied on, it is enough to allege such a facts and not evidence in support of the facts. E.g. In an election petition, the plea that cars were used by the successful candidate for the purpose of conveying voters contrary to law must be stated in the pleadings because it is material fact. But the facts as to from where the cars were obtained, who hired them and used them for conveyance of voters were the matters of evidence and need not be pleaded. | | | 4) Concise form:- The fourth principle of pleadings is that the pleadings should be drafted in a concise ' forx vith sufficient brevity and precision. The Material facts should be pleaded precisely. Every pleading should be divided into paragraphs and sub-paragraphs. Each allegation should be contained in a separate paragraph. The faets must be pleaded with certainty i.e. they should be definitely stated as facts and should not be left to be inferred from vague expressions. Immaterial allegations and unnecessary details must be omitted and material allegations and necessary details must be included. Other Rules of Pleadings :- 1) Wherever fraud, misrepresentation, breach of trust or undue influence are pleaded in the pleadings, particulars with dates and items should be stated. 2) Ifa party does not state necessary particulars in his pleading, the court may order the Party to state further and better particulars of the matter stated in his pleading. 3) The performance ofa condition precedent need not be pleaded because i is implied in the pleadings but if the opposite party contests the performance of & condition precedent, such plea must be raised in the pleadings. wt Generally departure from pleading is not permissible and no p ‘ground of claim inconsistent with his pleadings. A bare denial of a contract by th Scanned with CamScanner\l ALANGE'S Law classes, R 20 IMEC MAIN CIVIL PROCEDURE CODE prec oe 6) — Documents need not to be set out at length in the pleadings unless the psmusious words are material 7) Wherever malice, fraudulent intention, knowledge or other condition of the mind of a person is material, it may alleged in the pleading only as a fact without setting out the ferred. circumstances from which it is to b 8) Where it is material to allege notice to any person of any fact, matter of thing, pleading should allege the notice as fact without setting out the form or precise terms of such notice or the circumstances from which it is to be inferred. Implied contracts or relation between persons may be alleged as a fact and the series of ) letter, conversations, and the circumstances from which they are to be inferred should be pleaded generally. 10) Facts which the law presumes in favour of a party or as to which the burden of a proof Hige-upon the other side need not be pleaded. Ves Address for service of notice or Registered Address ( Section 14 A) (1) Every pleading, when filed by a party, shall be accompanied by a statement in the prescribed form and signed, regarding the address of the party. (2) Such address may, from time to time, be changed by lodging in Court a form duly filled up and stating the new address of the party and accompanied by a verified petition. (3) The address furnished shall be called the "registered address" of the party, and shall, until duly changed as aforesaid, be deemed to be the address of the party for the purpose of service of all processes in the suit or in any appeal from any decree or order therein made and for the purpose of execution, and shall hold good, subject as aforesaid, for a period of two years after the final determination of the cause or matter. (4) Service of any process may be effected upon a party at his registered address in all respects as though such party resided thereat. (5) Where the registered address of a party is discovered by the Court to be incomplete, false or fictitious, the Court may, either on its own motion, or on the application of any party, order - (a) in the case where such registered address was furnished by a plaintiff, stay of the suit, or (b) in the case where such registered address was furnished by a defendant, his defence be struck out and he be placed in the same position as if he had not put up any defence. (6) Where a suit is stayed or a defence is struck out under sub-rule (5), the plaintiff or, as the case may be, the defendant may, after furnishing his true address, apply to the Court for Scanned with CamScannerALANGE’S LAW CLASSES, SOLAPUR, 21 IMEC MAIN CIVIL PROCEDURE CODE ‘an order to set aside the order of stay or, as the case may be, the order striking out the defence, (7) The Court, if satisfied that the party was prevented by any sufficient cause from filing the true address at the proper time, shall set aside the order of stay or order striking out the defence, on such terms as to costs or otherwise as it thinks fit and shall appoint a day for proceeding with the suit or defence, as the case may be. Amendment of Pleadings Material facts and necessary particulars must be stated in the pleadings and the decision cannot be bases on the grounds outside the pleadings. But many a time the party may find it necessary to amend his pleading before or during the trial of case. Order 6 rule 17 provides for Amendment of Pleading. It reads as under :- “The court may at any stage of the proceeding allow either party to alter or amend his pleadings in such a manner and on such terms as may be or amend his pleadings in such a manner and on such terms as may be just and all such amendments shall be made as may be necessary for the purpose of determining the real question in the controversy between the parties.” Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial."" The proviso to Rule 17 of Order VI to some extent curtails absolute discretion to allow amendment at any stage. If application is filed after commencement of trial, it has to be shown that in spite of due diligence, such amendment could not have been sought earlier. The object for adding proviso by virtue of Amendment Act 22 of 2002 to Rule 17 of Order VI was to curtail delay and expedite adjudication of the cases. In the matter of: Chander Kanta Bansalv. Rajinder Singh Anand, (2008) 5 SCC 117, taking note of the object and purpose of Amendment Act 22 of 2002, the Hon'ble Supreme Court of India held that, the entire object of the said amendment is to stall filing of applications for amending a pleading subsequent to the commencement of trial, to avoid surprises and to ensure that one Party has sufficient knowledge of the ease of the other party. : aes Scanned with CamScannerE'S LAW CLASSES, SOLAPUR IMEC MAIN CIVIL PROCEDURE CODE Object :- The object of this rule is that the courts, should try the merits of the case that come before them and should consequently allow all amendments that may be necessary for determining the real question in the controversy between the parties provided it does not cause injustice or prejudice to the other side. Leave to amend when granted ? :- The rule confers a very wide discretion on courts in the matteXof amendment of pleading. As a general rule, leave to amend will be granted so as to enable the real question in issue between the parties to be raised in pleadings, were the amendment will occasion no injury to the opposite party and can be sufficiently compensated for by costs or other terms to be imposed by the order. The court may imposed costs or at the time of granting leave to amend the pleadings. 8) Of not /no working injustice to the other side and b) of being necessary for the purpose of determining the real questions in controversy between the parties. The court can take notice of subsequent events, and by allowing the amendment can grant appropriate relief to the parties te-the-partiee to the suit in the interest of justice. Leave to amend when refused:~ It is true that the courts have a very wide discretion in the matter of amendment of pleadings. It is a legal power and no legal power can be exercised improperly, illegally or arbitrarily. Generally in the following cases leave to amend will be refused by the court:- 1) Where the amendment is not necessary for the purpose of determining the real question in controversy between the parties. 2) If it introduces a totally different new and inconsistent case or changes the fundamental characters of the suit or defence. 3) Where the effect of the proposed amendment is to take away from the other side a legal right accrued in his favour by lapse of time. 4) Where the application for amendment is not made in good faith. Generally leave to amend not be granted if the applicant has acted malafide. 5) Leave to amend may be granted at any stage of the proceedings. It may be granted before, or at, or after the trial, or in first appeal, or in the second appeal, or in revision, or even in the Supreme Court. Scanned with CamScannerGE's iz IMEC MAIN CIVIL PROCEDURE CODE © Plaint (Order 7) Meaning of Plaint :- A plaint is a statement of claim, a document, by presentation of which, the suit is instituted. Its object is to state the grounds upon which the assistance of the court is sought by the plaintiff. Particulars of Plaint:- The Plaint should contain the following particulars:~ 1) The name of the court in which the suit is brought. 2) The name, description and place of residence of plaintiff and defendant. 3) The facts constituting the cause of action and when it arose. 4) The fact showing that the court has jurisdiction. | 5) A statement of the value of the subject matter of the suit for the purpose of jurisdiction and court fees. 6) Therelief claimed by the plaintiff. 7) Where the plaintiff or defendant is a minor or person of unsound mind, a statement to that effect. 8) Where the plaintiff files a suit in the representative capacity, it must be shown that the plaintiff has an actual interest in the subject matter and he has taken steps that may be necessary to enable him to file such suit. 9) If the suit is for recovery of money, it should state the precise amount claimed. 10) Where the plaintiff has allowed a set off or relinquished a portion of his claim, the amount so allowed or relinquished should be stated. 11) _ If suit is for account or mesne profit or for movables in the Possession of the defendant or for debts which cannot be determined, the approximate amount or value should be stated, 12) If the subject matter of the suit is immovable property, the ce should co description of the property sufficient to identify it, - 13) The plaint should state the interest and ab of the suit. If the suit is time barred, the should state th Scanned with CamScannerS PU 24 JMEC MAIN CIVIL PROCEDURE CODE [ Cause of action:- Every suit presupposes the existence of a cause of action against the defendant because if there is no cause the plaint will have to be rejected, The term cause of action has not been defined in Civil Procedure Code. But may be described as “A bundle of essential facts, which it is necessary for the plaintiff to prove before he can succeed”. It gives occasion for and forms the foundation of the suit. Thus cause of action means every facts which it could be necessary for the plaintiff to prove in order to support his right to the judgment of the court. It is also necessary for the plaintiff to state specially when such cause of action arose. ¢.g.:- In a suit for possession against the tenant on the ground of non-payment of rent, the period for which the tenant has been in default must be stated. Where the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and distinct grounds, he should state them as far as possible separately and distinctly. | ‘Cause of Action wholly or in part arises: Where no specific place was fixed for making payment. Bank guarantee stating that payment shall be made to Finance Secretary to Government of Sikkim. Part of cause of action arose at Gangtok (Sikkim). Part of contract was performable at Gangtok as required by Section 49 of Contract Act. Held, that the District Judge (East and North) at Gangtok had jurisdiction to entertain suit for recovery on the basis of bank guarantee. ' Return of Plaint:-(Rule 10) Where at any stage of the suit, the court finds that it has no jurisdiction it will return ‘the plaint to be presented to the proper court in which the suit ought to have been filed. An appellate court can also return the plaint to be presented to the proper court, ‘The judge returning the plaint should make endorsement on it regarding 1) The date of presentation. 2) The name of the party presenting it and 3) Reasons for returning it. ‘The order returning the plaint is appealable. Rejection of Plaint:- (Rule 11) The plaint will be rejected in Scanned with CamScannerA JR IFC MAIN CIVIL PROCEDURE CODE | If the plaintiff does not discloses facts that give the plaintiff right to seek relief against defendant, the facts that are necessary to prove the damage caused to plaintiff. Case law on this provision — $.M.P. Shipping Services Pvt. Ltd. V. World Tanker Carrier Corporation; AIR 2000 Bom 34. (b) Claim Under Valued :- Where the relict claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so; | (c) Insufficiently stamped :- | Where the relief claimed is properly valued, but the plaint is returned upon paper | insufficiently stamped, and the plaintiff, on being required by the Court to supply the | requisite stamp-paper within a time to be fixed by the Cour, fails to do so ~ If the plaint is. insufficient stamp under court fees act and the plaintiff fails to supply the plaint with correct stamp value. (4) Barred by any law ‘Where the suit appears from the statement in the plaint to be barred by any law; Example when the plaint filed Jooks like to be barred by any statue and gives no right to plaintiff to file the suit and liable to rejected if the court accepts the plaint is barred by law. (©) Where it is not filed in duplicate — In any suit a duplicate copy of the plaint has to be filed and when a duplicate copy of plaint is not filed it is liable to be dismissed. (8) Where the plaintiff fails to comply with provisions of rule 9 — Where the plaintiff fails to comply withthe order 7 rule 9 ~ Co pies A pleats Provided that, the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-paper shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause f form correcting the valuation or supplying the requisi the Court and that refusal to extend such time would Scanned with CamScannerpees AW cone 2g cintin at peas f W. S. is the pleading of the defendant wherein he deals with every material fact alleged by the plaintiff in his plaint and also states any new facts in his favour or takes legal ‘objections against the claim of the plaintiff. Particulars of W. A W'S. should be drafted carefully. All the general rules for pleadings apply to W. S. also. Before proceeding to draft a W. S. it is necessary to examine the plaint carefully. Defendant may also take a number of defences either simply or in the alternative, even though they may be inconsistent. ‘The defendant shall within 30 days from the date of service of summons on him, Present a WS of his defence. Where the defendant fails to file WS within 30 days, he shall allow to file WS on such other day specified by the court for reasons to be recorded in writing but shall not be later than 90 days Rules of defence :- 1) _ A defendant is also bound to produce all the documents is support of his defence, or claim for set off or counter claim which are in his possession. If the defendant fails to produce them, they will not be received in evidence except with the leave of court. 2) The denial must be specific. It is not sufficient to deny generally but defendant must eal specifically with each allegation of fact which he does not admit | 30 3) The denial should to be vague, He must deny clearly and specifically. 4) Every allegation of fact in the plaint, if not denied, shall be taken to be admitted. 5) New facts like suit is not maintainable, transactions is void etc, must be raised in W. S. 6) — Where the defendant relies upon several distinct grounds of defence or set off or counter claim founded upon separate and distinct facts, they should be stated separately and distinctly. 7) Any new ground of defence which has arisen after fling of W. 8. may be raised by the defendant by amending W. S. 5 7 No pleading after the W. 8, of defendant can If the defendants fails to p pronounce the judgn Scanned with CamScannersot 7 JMEC MAIN CIVIL PROCEDURE CODE Meaning :- | Where in a suit for recovery of money by the plaintiff, the defendant find that he has | also a claim of some amount against the plaintiff, he can claim a setoff in respect of the said amount. Thus it is a “reciprocal acquittal of debts between two persons”. The rights of the defendants to claim setoff has been recognised under rule 6 and there is no necessity of filing a fresh suit by the defendant, e.g. ‘A’ sues *B’ to recover Rs. 50,000/- on account of goods sold. ‘B’ has also a claim of Rs. 25,000/- against ‘A’ on account of goods sold. Here ‘B’ can claim setoff of Rs. 25,000/-. Conditions :- A defendants may claim a setoff if the following conditions are satisfied :~ 1) The suit must be for the recovery of money. 2) The sum of money must be ascertained. 3) Such sum must be legally recoverable. 4) It must be recoverable by the defendant or defendants. 5) Itmust be recoverable by the defendant from the plaintiff or plaintifP's 6) It must not exceed the pecuniary jurisdiction of the court in which the suit is brought. 7) Both the parties must fill the defendants claim to setoff, the same character as they fill in the plaintiff suit. Kinds of setoff :- There are two kinds- ie. Legal setoff and Equitable setoff. 1) Legal setoff :- Rule 6 deals with legal setoff only. It was allowed by the court of common law in England. It is always in respect of an ascertained sum of money. 2) Equitable setoft Order 20, Rule 19(3) of C.P.C. recognises an equitable s allowed by the courts of equity in England, ‘ia 1) equitable set off may be claimed by ‘sum of money but that both the Scanned with CamScanner¢ MR TNCASSSS souarue << go ure aa paces CODE ~ | 2) Inassuit by a washerman for his wages, the defendant employer can setoff the price of the clothes lost by the plaintiff. Distinetion:- 1. Legal set off must be for an ascertained sum of money. Equitable set off may be allowed even for unascertained sum of money. 2. Legal set off can be claimed as of right and the court is bound to adjudicate upon it . Equitable set off can not be claimed as of right and the court has a discretion to refuse to adjudicate upon it 3. In legal set off it is not necessary that the cross demands arise out of the same transaction. Equitable set off can be allowed only when the cross demands arise out of the ‘same transaction. 4. In legal set of, it is necessary that the amount claim must be legally recoverable. Claim by way of equitable set off may be allowed even if't is time barred. 5. Legal set off requires a court fee. No court fee is required in case of equitable set off. © Counter Claim:- Meaning:- A defendant in a suit may in addition to his right to plead a counter claim, It may be Set up only in respect of claim for which the defendant can file a separate suit. This is a Counter claim or cross action or cross suit. The court has power to treat the counter claim as cross suit and hear the original suit and counter claim together. Provisions:- (Rule 6A to 6G) 1) A defendant may set up by way of counter claim against the claim of the plaintiff any right or claim in respect of action accruing to the defendant against the plaintiff either before or after the filing ofthe suit but before the defendants delivered his defense. 2) Such counterclaim should not exceed the pecuniary limits ofthe jurisdiction of suit and 3) Such counter claim has the effect of a cross si Judgment on the original claim as well Scanned with CamScannerBRRESIAWlasses souspun a9 parc ani cov procebuRE CODE 4) The counter claim of the defendant will be treated as plaint and the plaintiff has a right to file a W. ¥7.in answer to the claim of the defendant. >) The effect of the counter claim is that even iff the suit of the plaintiff is dismissed or withdrawn, the counter claim will be decided on merits, 6) The defendant will have right to get a decree for a counterclaim as claimed in the W. S, 7) If the plaintiff does not file any reply to the counterclaim, the court may pronounce the judgment against the plaintiff in relation to counter claim. 8) The counter claim is not restricted to suit for recovery of money like setoff. istinetion between Setoff and counterclaim 1) Set off must be for an ascertained sum of money or it must arise out of the same ‘transaction. A counter claim need not be for an ascertained sum of money or it need not arise out of the same transaction. | | | | } N 2) Set offis a ground of defence to the plaintiff's action. In other word a shield which if established would afford an answer to the plaintiffs claim. Counter claim is a weapon of offence, a sword which enables the defendant to enforce the claim against the plaintiff, 3) _ In the case of a legal setoff, the amount must be recoverable at the date of the suit. In the case of a counter claim, the amount must be recoverable at the date of the filing of W.S. Set off can be claimed only in recovery of money suit. Counter claim ean be claimed in any suit including recovery of money suit, * AFFIDAVITS (Order 19) An affidavit is a declaration as a to facts made in writing and sworn before a person having authority to administer an oath, Every affidavit should be drawn ‘up in the first 1 and should contain only the facts and not inferences, a n Evidence on affidavits: ‘gi )) 2) Ordinarily, a fact has t exception to Scanned with CamScanner | | | |v INGE’S LAW CLASSES, SOLAPUR 30 JMEC MAI PROCEDURE CODE 3) The court is empowered to make an order that any particular fact maybe proved by affidavits, subject to the right of the opposite party to have the deponent produced for cross examination, 4) Affidavit should be confined to such a facts as the deponent is able to prove of his personal knowledge, except on interlocutory applications, on which statements of his belief may be admitted. Generally application for temporary injunction, appointment of receiver, attachment before judgment etc, are decided on affidavits. 5) Unless the affidavits are properly verified and are in conformity with the rules, they will be rejected by the courts. + APPEARANCE AND NON APPEARANCE OF PARTIES (Order 9) :: 1) There is a general rule that no proceedings in a court of law should be conducted to the detriment of any party in his absence, this rule is contained in the maxim “Audi Alterimpartem” i.e. no one should be punished unheard, which is based on the principle of natural justice. Generally proceedings be conducted in the presence of both the parties. 2) Order 9 requires the parties to the suit to attend the court in person or by their pleaders on the day fixed in the summons for the defendant to appear, Order 9 deals with the law with regard to the appearance of the parties to the suit and the consequences of their non appearance. 3) Where neither the plaintiff nor the defendant appears when the suit is called out for hearing the court may dismiss it The plaintiff may also apply for an order to set aside such a dismissal if the court is satisfied that there was sufficient cause for his non-appearance, it shall pass an order setting aside the dismissal of suit and shall fix a day for proceeding in the sui 4) 5) Where the plaintiff appears and the defendants does not appear the plaintiff has to prove service of summons on the defendant. If the service of summon: Proved, the court may proceed ex-parte against the defendant and may pass a decree in favour of the plaintiff, if the plaintiff proves his case. 6) Where there are two or more plaintiff’ and one or more of them appear and the others do ‘not appear, the court may permit the suit to proceed as if all the plaintiffs has appeared or make such order as it thinks fit. 7) Where the defendant appears and the plaintiff does not appear and defendant does not admit the plaintiff's claim the court shall pass the order dimissing the suit, 8) Where there are two or more defendants and one or more of them appear and the others do not appear, the suit will proceed and at the time of judgment, the court may make such order as to the absent defendants as it thinks fit, Scanned with CamScannerLAP 31 JMEC MAIN CIVIL PROCEDURE CODE 9) Where the court has adjourned the hearing of suit ex-parte and the defendant before such hearing, appears and assigns goods cause for his previous non-appearance, the court may hear him upon such terms as it directs to the cost or otherwise. 10) Setting aside on ex-parte decree (order 9, Rule 13) :- For setting aside an ex-parte decree against the defendant an application by defendant under this rule is necessary. If the defendant satisfies the court that- a) The summons was not duly served or b) He was prevented by any “Sufficient cause” from appearing when the suit was called out for hearing. The court will set aside the decree passed against him and appoint a day for proceeding with the suit. Grounds for setting aside :- 1) Summons not duly served :- If the summons of the court was not duly served upon the defendant, the court may set. aside ex-parte decree passed against him. 2) Sufficient cause :- The expression “sufficient cause” has not been defined in C.P.C, It is a question to be determined in the fattsand circumstances of each case. The words sufficient cause must be liberally considered to enable the court to exercise the powers of setting aside ex-parte decree. The following grounds have been held to be sufficient cause for the absence of the Party- a) Bonafide mistake as to the date of hearing. b) Late arrival of train. co) Inability on account of illness or accident. 4) Fraud of the opposite party. 9 Mistake of pleader or his clerk in Scanned with CamScannerE'S LAW, ILAPUR, IMEC MAIN CIVIL PROCEDURE CODE Limitation ;- ‘The application for setting aside ex-parte decree should be made within 30 days from the date of decree or where the summons is not duly served, within 30 days from the date of his knowledge of a decree. No ex-party decree can be set aside without notice to the opposite party and without giving him an opportunity of hearing. Difference between Ex-party Decree and Order: Where the plaintiff appears and defendant does not appear the court passes ex-party order against the defendant when summons duly served. Where the court has adjourned the hearing of the suit ex-party and defendant assigns good cause for his previous non appearance, the ex-party order may be set aside by the court. O.IX R.13 provides for setting aside ex-party decree against defendant, if the defendant satisfied the court the summons was not duly served or he was prevented by sufficient cause from appearing, the court shall make order setting aside the decree. For setting aside ex-party order application in the same suit may be filed with sufficient cause but separate Misc. Application is to be filed for setting aside ex-party decree. Ex-party order does not completely dispose of the suit but ex-party decree completely disposes of the suit. * Discovery, Inspection & production of documents (Orderf1) : Discovery means to compel the opposite party to disclose what he has in his possession or power. It is clear fromr what has been stated that after settlement of issues a party to a suit may require information from his adversary (opposite party) as to facts or as to documents in possession or power of such party, relevant to the issue in the suit. where the information as to facts is required, the parties allowed to put a series of questions to his adversary. These questions are called interrogatories. The judge will go through the proposed question & if he considers them Proper, will compel the other side to answer them on oath before trial. Thi el facts. oe he part ant documents in | Scanned with CamScanner