END-SEM NOTES - CPC

General Disclaimer:
● These notes have been prepared based on my revision method.
● Points are explained in brief and are based on the materials I have.
● Ujwala Ma’am’s Synopsis for each topic/chapters have also been included and are
mentioned separately in BLUE.
● Any additional information has been taken from CK Takwani and is mentioned in PINK.
● Wherever possible I have tried to incorporate the Asynch Questions and have been
marked separately in PURPLE
● Do note: This is not exhaustive and I shall not bear any responsibility for any bad/low
marks

All the Best and hope this helps!

- Titash

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 UNIT 1 - INTRODUCTION

Substantive law and Procedural law:

● Most laws are a combination of both types
○ “Predominantly substantive and partly procedural” - Category A - Companies Act
○ “Predominantly procedural and partly substantive” - Category B - Registration
Act
● SL - Determines / affects / creates / Strikes down vested rights || PL - Enforce vested
rights
○ Eg: IT Act - restricts right to property
■ Taxes to be paid, capital gains, obligation to pay
○ Eg: ToPA - Creates, Regulates and at times strikes down rights
● Majorly Substantive law - when it regulates the rights/restrictions
○ Creates, takes away, strike down, restrict, enhance
● Procedural law -
○ When the predominant provision exercise a vested right created by another right
○ But many create vested rights as well - create and restrict
■ Rt to bail - CrPC
■ Rt to Fair Trial - CrPC
■ Rt to Appeal - CPC
■ Rt to Property - CPC
● Equally substantive and procedural laws - IT Act, GST Act,
● SL is interpreted strictly and PL are interpreted harmoniously with SL
● SL is not retrospective but PL can be retrospectively applicable to pending proceedings
○
● Substantive law determines rights and liabilities of parties ---- Adjective/Procedural law
prescribes the practice, procedure and machinery for the enforcement of those lights and
liabilities.
● Halsbury -
○ The function of substantive law is to define, create or confer substantive legal
rights or legal status or to impose and define the nature and extent of legal duties.
○ The function of procedural law is to provide the machinery or the manner in
which the legal rights or status and legal duties may be enforced or recognised by
a court of law or other recognised or properly constituted tribunal.
● Efficacy of substantive law is dependent on the quality of procedural law.
○ Procedural law is an adjunct or an accessory to substantive law
○ It is procedural law which puts life into substantive law by providing a remedy
and implements ubi jus ibi remedium
● CPC is an adjective or procedural law. -- it neither creates nor takes away any right. It is
intended to regulate the procedure to be followed by civil courts.
● Difference between Substantive Laws and Procedural Laws:

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 ○ Substantive laws determines/affects vested rights or obligations of person.
Procedural laws provide machinery for enforcement of those vested
rights/obligations.
○ Substantive laws create/take away vested rights/obligations. Procedural laws do
not create/take away any vested rights/obligations.
○ Substantive laws are to be interpreted strictly; Procedural laws are interpreted
liberally and harmoniously with substantive laws.
○ Substantive laws cannot be retrospective unless expressly provided as they affect
vested rights/obligations; Procedural laws may be retrospective and apply to
proceedings already commenced.
○ Substantive Laws: Constitution, Contract Act, Transfer of Property Act, Indian
Penal Code; Procedural Laws: Code of Civil Procedure, Code of Criminal
Procedure, Indian Evidence Act, Limitation Act.

History and Object of CPC:

● History of Code of Civil Procedure, 1908:
○ Prior to 1859, different procedure followed by different civil courts. First Code of
Civil Procedure enacted in 1859. The bulk of Code of Civil Procedure as in force
today was enacted in 1908. Subsequently the Code of Civil Procedure has been
amended in 1976, 1999 and 2002 which made significant changes to the Code of
Civil Procedure, 1908.
● Object of Code of Civil Procedure, 1908:
○ The object of Code of Civil Procedure – Preamble: to consolidate and amend laws
relating to procedure of courts of civil judicature.
○ Consolidation Acts presumed to not intend change in the previous laws.
● Interpretation of Code of Civil Procedure, 1908:
○ The Code being a law of procedure ought to be interpreted liberally and
harmoniously with the substantive laws. The interpretation should not be too
technical or too strict. Purpose of procedural laws is to enforce the substantive
laws, interpretation of procedural laws ought to be so as to effectively enforce
substantive laws and not to defeat the substantive laws. The Code of Civil
Procedure contains 158 Sections (amendable by Legislature only) and 51 Orders
(amendable by High Courts under Section 125 CPC). The Sections and Rules
under the Orders are to be interpreted harmoniously. If Rules are found to be
inconsistent with the provisions of Section, the latter prevails.
● Sec. 1 - Extent and Applicability
○ Whole of India except the State of Nagaland and Tribal Areas.
○ Excluded areas have to be guided by the spirit of the code and would not be
bound by the letter of the CPC
○ Applicability of Code of Civil Procedure, 1908:
■ The Code expressly saves local or special laws by not limiting their
applicability in its Sections 4, 5, 7.
● Sec. 3 - Subordination of Courts.

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 ○ For the purposes of this Code, the District Court is subordinate to the High Court,
and every Civil Court of a grade inferior to that of a District Court and every
Court of Small Causes is subordinate to the High Court and District Court.
○ Court of Small causes → District Court → HC
● Sec. 4 - Savings
○ Code is not exhaustive and is not limiting in nature
● Sec. 5 - Application of the Code to Revenue Courts
○ Where any Revenue Courts are governed by the provisions of this Code in those
matters of procedure upon which any special enactment applicable to them is
silent, the State Government may, by notification in the Official Gazette, declare
that any portions of those provisions which are not expressly made applicable by
this Code shall not apply to those Courts, or shall only apply to them with such
modifications as the State Government may prescribe.
○ Revenue court -- a Court having jurisdiction under any local law to entertain
suits or other proceedings relating to the rent, revenue or profits of land used for
agricultural purposes
● Sec. 7 - Provincial Small Cause Courts
● Sec. 8 - Presidency Small Cause Courts.

Hierarchy of Civil Courts:

● Key reasons for importance - for appeal and pecuniary jurisdiction
● Kar HC -
○ SC → HC → District Court → Court of Senior Civil Judge (Sr.) → Court of Civil
Judge (Jr.) → Munsif Court
○ BLR City Civil Court Act is separate form Kar City Civil
● Usually courts of appeal would not be based on pecuniary or other general jurisdiction
○ Court of appeal is statute related
● Eg: Munsif → Sr. Civil (and not Jr. Civil) -- for kar cc
● Small Causes Courts
○ Karnataka Small Causes Courts Act 1964
○ Depends on the Act -- SC → HC → DC → SCC (Kar) || SC → HC → Sm.Caus.C
(Bom)
○ Not the lowest court
○ For speedy trial of petty cases
■ Despite summary cases, SCC was needed to fasten the process (Law
Comm Report)
■ Procedural compliance shortened
○ Tries to relate DC with sessions court
● Supreme Court → High Court → District Court → Court of Senior civil judge (Court of
civil judge (sr. div) → Court of civil judge (Court of civil judge (Jr. div) / Munsif court →
Small Causes court (Karnataka Small Causes Courts Act 1964) – separate hierarchy

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Definition Clause:

S. 2(11) - Legal representative:

● Person in law representing estate of deceased – legal heir, coparcener etc
● Any person who intermeddles with estate of deceased and intends to sue or be sued in
representative character.
● Even a stranger can be considered as LR. Example, liquidator of bankrupt company,
receiver appointed by court, executor/administrator etc.
● Person in law representing the estate of deceased in law
○ Can be PoA, Notary, Legal Heir, Coparcener, Trustee, Agent…)
● Need not be a Legal Heir (LH)
● Any person who intermeddles with the property of the deceased and intends to sue or to
be sued in representative character.
● LR = person who represents the estate of deceased + party suing or being sued in a
representative character + person on whom the estate devolves + intermeddlers
○ Hence it includes: executors, administrators, revisioners, Hindu coparceners,
residuary legatees etc
○ Trespasser would not be a LR as he does not intermeddle with the intention of
representing the estate of the deceased;
○ even executor de son tort, succeeding trustee, official assignee or receiver is not a
LR
● Case: Satya Ranjan Roy v . Sarat Chandra Biswas
○ Facts: Initial suit was bought by the deceased (Lalit Mohan). The plaintiffs
included the wife and the appellants (def2 and def3) as the LRs of deceased based
on the fact that a judge of a subordinate court held that def2 and def3
“appropriated some bricks of the kiln” under the orders of the District Board of
Nadia. So basically the SJ held the wife and def2 and def3 to be the LRs of
deceased
○ Issue: Def2 and Def3 claim that they are not to be made parties and LR should
be the wife only as she represented the estate of the Deceased. Hence --
Executor de son tort, whether can be impleaded as party in presence of legal
representative????
○ Arguments:
■ Def2 and Def3-- when a person may be intermeddling with the estate of
the decreased, he may become an executor de son tort but the case did
not show def2 and def3 to be executors de son tort.
■ Plaintiff (who is the respon. now) -- adding of all 3 parties as LR is
justified as per s.2(11) as they appropriated the bricks. But the counsel
here failed to produce any authority to establish that taking away of bricks
could make him an intermeddler/executor-de-son-tort even when there
exists another LR.
○ Holding of the Court:
■ Deceased had left his wife to represent the estate after death in the case
brought against him and his widow would be the proper representative
of the deceased.

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 ■ The court accepted the view of the SJ where the def2 and def3 were said
to be the executor-de-son-tort but there was no ground on which they
could be held as the LRs of the deceased where they represent his estate
by intermeddling with it. (There was a lack of intention of intermeddling
with the property)
○ Hence def2 and def 3 as executor de son tort were not held to be LRs.
● Case: SBI v. Indian Apparels Industries [AIR 1989 Del 297]
○ Overruled the Satya Ranjan Roy case
■ A bare reading of the definition of the word "legal representative" or the
provisions of Order 22, rule 4, Code of Civil Procedure, do not place any
restriction on the impleading of any legal representative.
■ Did not agree to the fact that only the widow would be the proper
representative of the deceased.
■ Hence the judge before overruling held that - If there are more than one
legal representatives, one in the capacity of legal heir and other an
intermeddler, in my opinion, there is nothing in law to warrant the
proposition that only the former category of legal representatives should
be impleaded and not the latter category.
○ SBI sued IAI - money suit - defendants were minor daughter as LH along with 3
others - no executor in law for estate on date of filing suit
○ Defendant (Deceased) had taken loans -- co-defendants:
■ Defendant No. 2(a) = the daughter of Deceased (minor being sued through
her grandfather Def.3), Defendant No. 2(b) = his mother; Defendant No.3
is his father ; Defendant No. 4 is his brother.
■ Defendants Nos. 2(a) and (b) have been impleaded as surviving class I
legal heirs of the deceased
■ Defendants Nos. 3 and 4 have been impleaded by the plaintiff alleging that
the said defendants are intermeddling with the estate and are
functioning as de facto administrators of the estate.
■ Def 2(b), 3, 4 all sought dismissal of the suit or striking out their names
from the suit.
○ Defs were sued as LRs of deceased and not in their individual capacity.
○ did not deal with the aspect of ‘intention’
■ But -- submission of appellants for impleading D3 and D4 as
intermeddlers it was necessary, in law, for the plaintiff to further allege
that the said defendants had retained the possession of the properties
belonging to the estate of major Chadha with the intention of representing
the estate.
■ Nagendra Nath Roy v. Haran Chandra 1933 - essential test for
distinguishing LRs and intermeddlers is the intention of possessing the
property and representing the estate.
○ CH: because LH are added, it doesn't mean that intermeddlers can be added
■ If there are more than one legal representatives, one in capacity as legal
heir and other as in intermeddler, in my opinion, there is nothing in law
to warrant the proposition that only the former category of legal
representative should be impleaded and not that of the later category.

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 ■ One can choose to make LH or Intermeddler as LR

S. 2(12) - Mesne Profit:

● Definition:
○ means those profits which the person in wrongful possession of such property
actually received or might with ordinary diligence have received therefrom,
○ together with interest on such profits,
○ but shall not include profits due to improvements made by the person in
wrongful possession;
● Profit from property by
○ person in wrongful possession of property
○ actually received or might have received with ordinary diligence
○ with interest
○ does not include profit from improvements made by person in wrongful
possession
● There is no fixed principle and various factors are considered depending on the
circumstances of each case to determine mesne profit from a property.
● Profit from property by
○ Person in wrongful possession of property (trespasser)
○ Actually received or might have received with ordinary diligence
■ Eg: if case has been filed for recovery of possession of immovable
property by the alleged actual owner against a person who does not have a
legal title to such property -- trespasser has taken possession of the
property -- owner wants recovery and profits made from the property
(mesne profit) -- if court agrees to the ownership and recognises the
trespasser, the court will consider that irrespective of the ownership
nature, if a reasonable person of ordinary prudence would have made
profit from such property -- claim can be liquidated or unliquidated
damages with an approximate estimate should be given to the court; court
can decide -- if liquidated damages then the court has to grant the actual
amount asked by the plaintiff -- if court finds that plaintiff is not entitled to
any compensation as there is no violation of any legal right
■ Mesne profit is an unliquidated damage
○ With interest
■ Follows High Court rules for rate of interest based on various situations --
never higher than the fixed rates of RBI
■ profit + interest = Mesne Profit
○ Does not include profit from improvements made by person in wrongful
possession
■ Eg: factory premises -- trespasser makes a godown that gives additional
income/profit -- 5L + 1L -- mesne profit will be 5L + interest.
● Then what about the godown??? -- the godown is the “profit”?? --
hence when the court orders for recovery, the owner would have to
pay the trespasser for the costs for the improvements made

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 ● Improvements costs should not include the present market value --
seen as an punishment for making such improvements
● Mesne profit is a compensation for the wrongful trespass that led to losses faced due to
no control over the property -- its not “profit”
● Objective is to compensate and not to make profit from such property
● Objective → when one is deprived of their right to property, he is not only entitled to
restoration of possession of his property but also damages for wrongful possession.
● Claimed against → a person in wrongful possession and enjoyment of immovable
property is liable for mesne profits
○ So can be passed against a trespasser, mortgagor or mortgagee, against a person
against whom a decree for possession is passed
○ Can be joint and several liability
● Assessment of mesne profit → as its damages, no invariable rule governing their award
and assessment can be laid down.
○ Usually the court will take into account what the defendant has gained or
reasonably might have gained by his wrongful possession of the property.
● Interest → integral part of mesne profits, it has to be allowed in the computation of
mesne profits itself.
○ Rate of interest is at the discretion of the court subjected to the limitation that the
sai said shall not exceed 6% per annum.
● Deductions → land revenue, rent, cesses, cost of cultivation and reaping, the charges
incurred for collection of rent.
● Mesne profits = net profits
● Case: BSNL v. Radhika Chettri 2018
○ Radhika leased property to BSNL in 1993 and expired in 1998 -- terms mentioned
that after the expiry, lessee to pay extra rent or vacate -- BSNL stayed and paid
same rent -- BSNL gave notice in 2013 -- property was damaged -- BSNL did not
vacate completely even after notice for 7 years -- court held tenancy at sufferance
(tenancy against the wish of the owner) and BSNL deprived the owner of the
property from possession of the property due to non vacation, thus mesne profits
given.
○ Nature of loss was even due to breach of contract and mesne profit -- court
decided mesne profit as contract had been terminated and party did not comply
with the termination
Discussion Prompt: If Y’s property had only a ground floor & X constructed 1st floor apartment
- gets rent - is it a mesne profit?
NO as its an improvement to the property.

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 UNIT 2: JURISDICTION

MEANING OF JURISDICTION
● Power of court to hear and try a case
● Boundaries of a courts power to take cognizance of a legal dispute - within which the
court should operate
● Who tells the court that it lacks the jurisdiction -- Statutes and the court themselves based
on what says only (and SC or HC precedents)
Just in case: (TAKWANI)
Want of jurisdiction (lack of jurisdiction) would result in the nullity of a decree passed
by a civil court, and this nullity can be set up in any collateral proceeding. On the other hand, if
the court has the jurisdiction but it is exercised irregularly, the defect does not go to the root of
matter and the error if any in exercising the jurisdiction can be remedied in appeal or revision
and where there is no such remedy or is not availed of, the decision is final.

PECUNIARY JURISDICTION - SECTIONS 6 and 15

● S. 6 and 15 are not exhaustive -- there are other laws to explain the same. (eg. kar civil
courts act)
● Competent court of lowest grade
● Value of subject matter of suit/execution proceedings (value of relief claimed)
● Sec 15: Suit shall be instituted at the court of the lowest grade competent to try it.
● Sec 6: Courts have jurisdiction over suits wherein value of subject-matter of the suit does
not exceed the pecuniary jurisdiction of the court.
● Section 6
○ Prohibitory section
○ 6. Pecuniary jurisdiction.—Save in so far as is otherwise expressly provided,
nothing herein contained shall operate to give any Court jurisdiction over suits
the amount or value of the subject-matter of which exceeds the pecuniary limits (if
any) of its ordinary jurisdiction.
● Section 15
○ Court in which suits to be instituted.—Every suit shall be instituted in the Court of
the lowest grade competent to try it.
○ Hierarchy and pecuniary jurisdiction
○ Eg: if case is of 5L and Civil Jud Jr Div has 8L and Sr. div has 10L, then the case
is under Jr. div based on hierarchy.

Suit Valuation Act 1885

● Value of subject-matter of suit is value of the relief claimed in the plaint
● Court-fees calculated based on value of suit
● S.3 Power for State Government to make rules determining value of land for
jurisdictional purposes.

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● S.9 Determination of value of certain suits by High Court.
● Case: Ramesh Goyal v. Dwinderpal Singh 2008 Cal HC (Case Summary by Chaitanya
Sharma)
○ Findings: The pecuniary jurisdiction of the suit depends on the valuation stated in
the plaint unless it is determined by the Court that the reliefs claimed in the suit
have been under-valued.
○ Jurisdiction of the Court to entertain a suit depends upon the valuation of the suit
property as on the date of institution of the suit and the subsequent increase in the
valuation of the suit property may take away the jurisdiction of the Court to try a
suit due to an enhancement in the value of the property during the pendency of the
suit.
○ Since the Plaintiff did not dispute the market valuation of the suit property as
alleged by Defendant No.3, the High Court held that the Trial Judge lacked
pecuniary jurisdiction to try the suit from the date of amendment of the plaint.
The order of the Trial Court was set aside.
● Case: ICICI Bank Ltd. v. Limtex India Ltd 2011 Cal HC
○ Credit arrangement -- Pet/App looking to declare it null and void and looking for
injunction -- sum is 18L -- if Kol HC has jurisdiction wrt City Civil Court (CCC)
of Kol (10L juris) -- initially under trial judge who rejected it -- Pet says its not
maintainable in the Kol CCC as the arrangement is based on an master agreement
made in Mumbai so the jurisdiction should be in Mumbai as no cause of action in
Kol so Kol CCC has no jurisdiction -- Def said its not a recovery suit and is
merely an injunction case as managers were in Kol -- suit valued at Rs. 200 as per
def and is thus under the pecuniary jurisdiction of Kol courts -- if trial judge
justified??? -- Agreement says that parties are agreeing to submit to the HC of
Mumbai -- Kol HC said the suit is valued is at Rs.18L and not Rs.200 so Kol
CCC has no jurisdiction -- reason 1 suit was wrongly valued and was a claim suit
disguised as an injunction and reason 2 RDDBFI bars the Bom HC and should be
dealt in the DRT Mumbai.
○ Subject matter jurisdiction and Pecuniary Jurisdiction.
○ Value of suit claimed to be Rs. 200 -- Declaration suit
● Value of subject matter of suit will be determined based on the relief/prayer clause
● Effect of court’s order exceeding pecuniary jurisdiction
○ Inherent lack of jurisdiction ← → Irregular exercise of jurisdiction
○ In case bona fide mistake and case is decided based on merits -- should there be a
hearing from the start?
○ A writ can be filed -- but case is fully decided on merits
○ Cases have held that the case is irregular proceeding when it comes to pecuniary
jurisdiction issues (only)
○ Two requirement:
■ Opposite party did not raise objection at the correct time
■ Lack of jurisdiction has not significantly/adversely defeated the process of
justice
○ Cannot be invalidated for pecuniary jurisdiction issues only.
○ Order is valid as long as it meets the 2 requirements.
● Determining element of value of suit is based on the nature of remedy/relief.

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SUBJECT MATTER JURISDICTION - SECTION 9
● Courts to try all civil suits unless barred.—The Courts shall (subject to the provisions
herein contained) have jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred.
● 2 conditions:
○ Suit must be of civil nature
○ Cognizance of such suit must not be expressly or impliedly barred (eg. special
tribunals and courts, rent control act, family courts act for divorce cases)
● Suit of a civil nature - covers private rights and obligations of a citizen.
○ Political and religious questions are not covered.

Suits must be of civil nature:

● Explanation I -- principle question should be of civil nature, incidental questions relating
to case or religious ceremonies
○ A suit in which the principal question relates to caste or religion is not a suit of
civil nature
○ Incase of such religious properties -- to resolve the dispute, the court may end up
enforcing the terms of the trust deed which specifies the scripture and other terms
involved or mentioned in the trust deed to dwell into aspects of religious
scriptures. -- hence for civil disputes the court will address religious issues
○ If the principle question in a suit is of a civil nature (right to property or to an
office) and the adjudication incidentally involves the determination relating to a
caste or religious question or to religious rights and ceremonies, it does not cease
to be a suit of a civil nature and the jurisdiction of a civil court is not barred.
(Explanation II)
○ The main dispute would be a property dispute itself and the religious aspect is
only incidental
○ Caste issues - civil case cant be filed
● Right to property; damages for civil wrongs; specific performance of contract or damages
for breach of contract; suit for rent -- are civil
● Rights of worship? - No
● Restitution of conjugal rights? - Yes
● Eg: Not being allowed to enter a place of worship -- civil case? -- no as its purely
religious nature (writs allowed)
● Expulsion from caste? Right to religious position (mahant)? Right to hold religious
ceremonies? -- Not civil nature cases
● Civil nature - principal question - determination of civil rights, enforcement - not
involving principally political and religious questions.
● Explanation I – principal question civil nature - incidental questions relating to caste or
religious ceremonies – civil court jurisdiction not excluded.
● Explanation II - Amendment Act, 1976 – whether fees attached to religious office or not
– not relevant.
○ What it means is that a suit relating to a religious office is maintainable whether
or not it carries any fees or whether or not it is attached to a particular place
● Examples of suits of civil nature:

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 ○ rights to property; rights of worship; damages for civil wrongs; specific
performance of contract or damages for breach of contract; restitution of conjugal
rights; suit for rent
● Examples of suits not of civil nature:
○ suits involving principally caste questions; purely religious rites or ceremonies;
upholding mere dignity or honour; suits against expulsions from caste.

Cognizance of such suit must not be expressly or impliedly barred

● Specialised courts and Tribunals have been set up - MACT, Arbitration bodies ets
● Expressly barred -- Land reforms Act, Cooperative societies Act, Telegraph Act,
Electricity Act, State Municipalities Act, MV Act(s.94)
○ Barred by any enactment for the time being in force
○ Every presumption should be made in favour of the jurisdiction of a civil court
and the provision of exclusion of jurisdiction of a court must be strictly construed.
○ If there is any doubt about the ousting of jurisdiction of a civil court, the court
will lean to an interpretation which would maintain the jurisdiction
● Implidely barred -- Arbitration and Conciliation Act, ID Act(s.11)
○ Barred by general principles of law
○ Where a specific remedy is given by a statute, it thereby deprives the person who
insists upon a remedy of any other form than that given by the statute.
○ May even be barred due to public policy -- eg: Sec.23 ICA (or) recovery of costs
incurred in a criminal prosecution
● Irrespective of bar(express/implied) -- civil court has jurisdiction, when:
○ Created by precedents and not statutory
○ Special statute provisions not complied with
○ Fundamental principles of judicial procedure not followers
○ Alternate remedy not adequate
○ Special statute provisions challenged
● Case: Dhulabhai v. State of MP - AIR 1969 SC 78
○ Even if civil courts jurisdiction barred by special statute
○ Sales Tax case -- assesses (manufacturers) filed civil case for wrongful imposition
of tax and the provision is not lawful -- claimed for refund of tax -- filed regular
civil case -- objection raised by tax dept that there is a special provision in the
Sales tax act which expressly barred the jurisdiction for disputes arising from the
statute (maintainability of the case) -- while the case was on, another party went
to the HC and filed a WP -- HC held the tax to be unconstitutional with
retrospective effect.
○ SC: (general rule/provision/principles)
■ If Special statute providing alternate remedy, is not complied
with/followed -- civil court has jurisdiction
■ If special statute expressly bars civil court’s jurisdiction, inadequacy of
alternative remedy is relevant, not decisive. If special statute impliedly
bars civil court’s jurisdiction, inadequacy of alternate remedy per se is
decisive to confer jurisdiction to civil court

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 ■ If special statute provision challenged as ultra vires -- civil court has
jurisdiction
■ If special statute provision declared unconstitutional -- civil court has
jurisdiction
■ If tax statute has no provision for refund of excess tax collected -- civil
court has jurisdiction
■ Challenge to assessment under tax statute in tax tribunal only unless
constitutionality of assessing provision in tax statute challenged -- civil
court has jurisdiction.
■ Exclusion of civil court’s jurisdiction not to be readily inferred (exception)
● Case: Premier Automobiles v. Kamlekar
○ SC laid principles -- jurisdiction of civil court in Industrial Disputes:
■ If dispute is not ID nor relate to any enforcement of any other right under
the IDA -- remedy lies with Civil Court
■ If a dispute is an ID arising out of a right or liability under the general or
common law and not under the IDA -- jurisdiction of a civil court is
alternative leaving it to the election of the plaintiff
■ If an Industrial dispute relates to the enforcement of a right or an
obligation created under the Act, then the only remedy available to a suitor
is to get an adjudication under the IDA.
■ If the right which is sought to be enforced is a right created under the IDA
such as Chpt-VA, then the remedy for its enforcement is either s.33C or
the raising of an industrial dispute.
● Case: Mafatlal Case - Civil Court bar on tax Refund case
○ A hierarchy of tribunals has been provided for relief to the assessees under the IT
Act.
○ Elaborate alternate remedies provided by the Act, taken along with the specific
bar of the jurisdiction of courts provided in Rule 11 and Section 11(b) of the Act
and in particular specifying the conditions and procedure for entertaining claims
for refund, period of limitation within which the claim should be preferred stc will
oust/bar the jurisdiction of ordinary courts in this regard.
○ Even so in cases where the levy is unconstitutional or illegal or unjustified, the
jurisdiction of the Civil Courts is not barred to annul the levy and/or order refund.
● Case: Rajasthan SRTC vs. Krishna Kant
○ Where a dispute between the employer and the employee does not involve the
recognition or enforcement of a right or obligation created by the Industrial
Disputes Act and where such dispute also amounts to an industrial dispute within
the meaning of Industrial Disputes Act, whether the Civil Court's jurisdiction to
entertain a suit with respect to such dispute is barred?
○ Court held:
■ Based on Dhulabhai case: By and large, industrial disputes are bound to
be covered by Principle No.3. (Principle No.3 says that where the dispute
relates to the enforcement of a right or obligation created by the Act, the
only remedy available is to get an adjudication under the Act.)
■ Thus a dispute involving the enforcement of the rights and liabilities
created by the certified Standing Orders has necessarily got to be

12
 adjudicated only in the forums created by the Industrial Disputes Act
provided, of course, that such a dispute amounts to an industrial dispute
within the meaning of Sections 2(k) and 2-A of Industrial Disputes Act
○ The Civil Courts have no jurisdiction to entertain such suits.
○ Principles:
■ Where the dispute arises from general law of contract, i.e., where reliefs
are claimed on the basis of the general law of contract, a suit filed in civil
court cannot be said to be not maintainable, even though such a dispute
may also constitute an "industrial dispute"
■ Where, however, the dispute involves recognition, observance or
enforcement of any of the rights or obligations created by the Industrial
Disputes Act, the only remedy is to approach the forums created by the
said Act.
■ Similarly, where the dispute involves the recognition, observance or
enforcement of rights and obligations created by enactments like Industrial
Employment (Standing Orders) Act, 1946 - which can be called 'sister
enactments' to Industrial Disputes Act - and which do not provide a forum
for resolution of such disputes, the only remedy shall be to approach the
forums created by the Industrial Disputes Act provided they constitute
industrial disputes within the meaning of Section 2(k) and Section 2-A of
Industrial Disputes Act or where such enactment says that such dispute
shall be either treated as an industrial dispute or says that it shall be
adjudicated by any of the forums created by the Industrial Disputes Act.
Otherwise, recourse to Civil Court is open.
● Case: Saraswati v. Lachanna:
○ The suit in question was filed for redemption of the suit property by the
plaintiffs/respondents.
■ It was alleged in the plaint that the property mentioned in the schedule of
the plaint had been mortgaged through a registered deed, in favour of the
father of the original defendant and possession had been also delivered to
him.
○ a plea was taken on behalf of the defendants that the Civil Court had no
jurisdiction to try the suit in question. The Trial Court came to the finding that the
plaintiffs had right to redeem the mortgage, and the Civil Court had jurisdiction to
entertain the suit.
○ S.99 Tenancy Act -- it is apparent that a Civil Court shall have no jurisdiction to
settle, decide or deal with any question "which is by or under this Act required to
be settled, decided or dealt with by the Tahsildar...". In other words, the
jurisdiction of the Civil Court has been ousted only in respect of such questions
which are required to be decided or dealt with under the provisions of the Tenancy
and Agricultural Lands Act.
● Case: State of Kerala v. Ramaswamy Aiyer
○ It is true that even if the jurisdiction of the civil court is excluded, where the
provisions of the statute have not been complied with or the statutory tribunal has
not acted in conformity with the fundamental principles of judicial procedure, the
civil courts have jurisdiction to examine those cases :

13
 ● S.9 also creates jurisdiction -- covers cases that are not mentioned nor are barred.
● suits expressly barred
○ specific express statutory provision
○ Example: Land Reforms Act, Cooperative Societies Act, Telegraph Act,
Electricity Act, State Municipalities Act, Motor Vehicles Act.
● suits impliedly barred
○ Statute gives specific, adequate alternative remedy – civil court jurisdiction
impliedly barred. Example: Arbitration and Conciliation Act, Industrial Disputes
Act. State of Kerala v. Ramaswami Iyer AIR 1966 SC 1738
● Express or implied bar – civil court has jurisdiction – special statute provisions not
followed/infringed – fundamental principles of judicial procedure not followed –
alternative remedy not adequate – challenge to the special statute itself.

General Principles about Subject matter Jurisdiction

● A Civil Court has Jurisdiction to try suits of civil nature nature until their cognizance is
barred either expressly or impliedly
● Consent can neither confer nor take away jurisdiction of a court
● A Decree passed by a court without jurisdiction is a nullity and the validity thereof can be
challenged at any stage of the proceedings, in execution proceedings or even in collateral
proceedings
● There is a distinction between want of jurisdiction and irregular exercise of jurisdiction
● Jurisdiction of a court depends on the averments made in a plaint and not upon the
defence in a written statement
● For deciding jurisdiction of a court, the substance of a matter not its form is important
● Every presumption should be made in favour of jurisdiction of the court
● Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it
● Even where jurisdiction of a civil court is barred, it can still decide whether the
provisions of an Act have been complied with or whether an order was passed dehors the
provision of the law

TERRITORIAL JURISDICTION - SECTION 16 TO 20

● Suits relating to immovable property: Sections 16 to 18
○ Suits to be filed in court within whose local jurisdiction the property is situated
for suits for:
■ recovery of immovable property with or without rent or mesne profits -
partition of immovable property - foreclosure, sale or redemption in case
of mortgage or charge on immovable property - determination of any
other right or interest in immovable property - torts to immovable
property.
○ Inox AIR Products v Rathi Ispat AIR 2007 Del 53
● Property within jurisdiction of multiple courts: Section 17 - suit filed in any one of
such courts.
○ Raja Rao v Rajaiah (1963) 2 AndhWR 974
● Suits relating to movable property: Section 16(f) and 19.

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 ○ State of Maharashtra v Sarvodaya Industries AIR 1975 Bom 197
● Suit for compensation for wrong to person: Section 19
○ Gokuldas Melaram v Baldevdas Chabria AIR 1961 Mys 188
● Sec.16 -- Suits to be instituted where subject-matter situate.
○ Local limits for (Im.Pro):
■ (a) recovery of immovable property with or without rent or profits,
■ (b) partition of immovable property,
■ (c) foreclosure, sale or redemption in the case of a mortgage of or charge
upon immovable property,
■ (d) the determination of any other right to or interest in immovable
property,
■ (e) compensation for wrong to immovable property,
■ (f) recovery of movable property actually under distraint or attachment,
● clause (f) is linked/associated to Im.Prop viz all the allied
properties attached to the immovable property (can be seen in the
ED or IT recovery suits)
● Attached or confiscated by authority
● Partition cannot be enforced by clause f
○ Reason: convenience of judiciary -- courts requires evidence such as land records
and also easy to conduct investigations.
○ Cause of action doesn't matter. Jurisdiction depends of the locality of the property
solely u/s.16
○ Proviso:
■ Can be filed where the defendant is present or local limit of where the
property is located
■ For: obtaining relief respecting, or compensation for wrong to, immovable
property held by or on behalf of the defendant may,
■ where the relief sought can be entirely obtained through his personal
obedience,
■ Defendant’s presence → voluntarily resides, or carries on business, or
personally works for gain.
○ Concurrent jurisdiction -- law has provided a choice for multiple fora.
● Sec.17 -- Suits for immovable property situate within jurisdiction of different
Courts.
○ immovable property situate within the jurisdiction of different Courts, the suit may
be instituted in any Court within the local limits of whose jurisdiction any portion
of the property is situate :
○ Eg: Factory in BLR, Oil refinery in Mangalore, Coffee estate and farm house in
coorg and tea estate in Ooty.
■ All can be clubbed together -- hence can be filed in BLR itself.
■ Claim is as a single estate/ single Im.Prop.
● Im.Property can include estate.
○ Provided that the pecuniary jurisdiction has to be followed.
○ ‘May be instituted’ -- so there is a choice
● Sec.19 -- Suits for compensation for wrongs to person or movables.
○ Torts against persons = wrongs to person

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 ○ Trespass to goods = wrong to movables
○ Choice of jurisdiction given to the plaintiff
○ if the wrong was done within the local limits of the jurisdiction of one Court and
○ the defendant resides, or carries on business, or personally works for gain, within
the local limits of the jurisdiction of another Court,
○ Defendant’s presence is what matters, and not that of the Plaintiff.
● Sec.20 -- Other suits to be instituted where defendants reside or cause of action
arises
○ Residuary clause -- General law.
○ Where the defendant(s), at the time of commencement of the suit
■ Actually and voluntarily resides, or carries on business, or personally
works for gain
■ (above) provided that in such case either the leave of the Court is given, or
the defendants who do not reside, or carry on business, or personally
works for gain, as aforesaid, acquiesce in such institution;
○ Or based on cause of action
■ Cause of action is a set of events that gives rise to the claim.
■ Either wholly or partly
■ Eg: Loan’s cause of action would be -- formation of contract + breach of
contract + extension (if any)

Case Studies
● Example: X and Y are residents of Delhi - X leased cryogenic plant and machinery,
situated in Gaziabad to Y - on dispute, X sued for permanent injunction restraining Y
from using the machinery or running the plant in Delhi civil Court - Inox Air Products
Ltd. vs Rathi Ispat Ltd.
● Example: K filed suit in Chennai for partition of property consisting of immovable
property located in parts of West Godavari district and movable property located in
Chennai - Raja Rao v Rajaiah 1963
○ Sec.20 cant be used
○ S.19 is to be eliminated as there is a partition suit and not mov property solely
○ Sec.17 --- K will have a choice
■ Either two partition suits in west-godavari (wg+c property partition suits)
■ Or im.prop partition wg + im.prop partition in chennai -- both cant be filed
in chennai.
○ The case expanded the scope of s.17 -- its only related to immovable property --
hence s.16(b) used
○ partition suit has to be filed in west-godavari court including the property in
chennai -- cant be filed in chennai as we cant extend s.17 to the chennai courts
● Example: P, resident of BLR manages ancestral house in Mysore. Q Pvt Ltd, with HQ in
BLR operates in Mysore from building adjacent to P’s house - Qs employees throw
garbage in P’s ancestral house - P sues Q Pvt Ltd in BLR Civil Court for damages in P’s
ancestral Property.
○ Tort to immovable property → s.16

16
 ○ s.16(e) → case filed where the property is located which is Mysore BUT… →
there is also aspects of personal obedience = proviso of s.16 can also be
applicable BUT… →
■ Can be filed in Mysore or BLR
● s.16(e) = Mysore
● S.16 Proviso + s.20 Explanation = Mysore
● S.16 Proviso + s.20 Explanation 1st part = BLR
● Example: P has manufacturing unit in Akola Maharashtra and imports raw materials
under license - goods wrongfully stopped by customs at Bhandara Maharashtra - P
suffers loss at his factory - P sues State in Akola Civil Court - State of Maharashtra v
Sarvodaya Industries 1975
○ S.19 applicable -- wrong is against mov.property
○ Theres a choice:
■ Customs works all over Maharashtra -- Def is State Dept so case should be
filed in principle place of business -- State depts usually mention the court
where it can be sued by means of notifications/rules; so where the main
dept is located (capital) so mumbai
■ Choice is between Bhandara (where wrong has taken place) or Mumbai
(based on location of the principle office of customs dept)
■ Note: choice can be opted only by what’s been provided by law
○ But here the Plaintiff has filed in Akola -- Court allowed Akola civil court to
have jurisdiction u/s.19
■ Chain of causation wrt place where wrong was done or where def is
carrying on business = akola+bhandara -- s.19
■ Based on the interpretation of “wrong done”
● Example: D filed criminal case against P, resident of Blr in Bom Crim Court - summons
served on P in BLR - P acquitted by Bom Crim Court 0 P filed suit for malicious
prosecution against D in BLR Civil Court - Gokuldas Melaram v Baldevdas Chabria
1961
○ S.19 -- due to wrong to persons
○ Civil case can be filed in Bom. Civil Court
○ Wrong was done in Bom (filed) and BLR (summons was served in BLR --
affects reputation -- principle of remoteness of damages and chain of causation)
○ Bom has jurisdiction as
■ Def lives in bom
■ Wrong done in Bom
○ BLR has jurisdiction
■ Wrong done wrt serving summons is in BLR.

Ousting of Jurisdiction based on contractual clauses

● Parties can agree to oust, exclude or limit jurisdiction to only one court (Sec.
16,17,19,20) when multiple courts have jurisdiction
● Hakam Singh v Gammon Pvt Ltd 1971

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 ○ Based on the agreement, jurisdiction was mentioned as Bombay courts. Appellant
filed case in Varanasi
○ Since jurisdiction to Bombay City Civil Court is given by a agreement and
respondents had Head office in Bombay, the Bombay court alone has the
jurisdiction as the agreement terms are binding on the parties
● Patel Roadways v Prasad Trading 1992
○ Principle office of Patel in Bombay and Subordinate office in other places. Prasad
gave Patel a consignment to office in TN to be delivered in Delhi. Consignment
gets destroyed in godown in delhi. Prasad filed case in Periakulum TN
○ Sec19 r/w Explanation of s.20
○ Explanation provides alternative locus for corporations place of business not an
additional one
○ Thus Madras and Delhi have Jurisdiction. Bombay does not have jurisdiction and
jurisdiction cannot be conferred by parties
● Harshad Chiman Lal Modi v DLF Universal 2005
○ H from Del purchased a building in Gurgaon from DLF. DLF Head-office is in
delhi and the contract also stipulated that there would be an agreement to file in
delhi. DLF defaulted and case was filed in Del
○ Held: S.16(b) to be applicable.
○ Jurisdiction cannot be created in Del Court since no jurisdiction has been
previously created by law
○ “Cannot take away the right to challenge the jurisdiction of the court nor can it
(contract) confer jurisdiction on Del Court which it did not possess
○ Since suit was for specific performance, del has no jurisdiction
● If there is a subordinate office and the cause of action arises there, then HO won’t have
jurisdiction
● Objections relating to territorial and pecuniary jurisdiction: Section 21
○ objection be raised at the trial court level itself
○ objection raised at the earliest possible opportunity in the trial court
○ there has been consequent failure of justice.

TRANSFER OF SUITS
● Section 22: Multiple courts with jurisdiction – defendant apply for transfer on
conditions that:
○ Application made at earliest possible opportunity
○ Notice given to all other parties
○ Court to consider objections of other parties, if any
○ Court to which transfer of suit is sought must have jurisdiction to try the suit.
● Section 23: Application for transfer:
○ Courts subordinate to same appellate court, transfer application made to the said
appellate court
○ Courts subordinate to different appellate courts but same High court, application
to the said High court

18
 ○ Courts subordinate to different High courts, application to the High court under
whom the subordinate court lies where the suit is first filed.
● Section 24: powers of High Court and District Court to transfer cases
● Grounds for transfer:
○ Reasonable apprehension of denial of justice - mere suspicion or convenience of
parties or no objection from other parties not sufficient - Matrimonial cases:
convenience of wife relevant.
● Section 25: power of Supreme Court to transfer
○ Expedient to secure ends of justice
○ If transfer application frivolous or vexatious - compensation to opposite party
○ Nisikant Sukerkar v. Govt. of India (2003) 2 SCC 289;
○ G.C. Care Centre & Hospital v. O.P. Care Pvt Ltd (AIR 2004 SC 2339);
○ Chitivalasa Jute Mills v. M/s. Jaypee Rewa Cement (AIR 2004 SC 1687)

RES SUB JUDICE - SECTION 10

● Stay of suit.—
○ No Court shall proceed with the trial of any suit in which the matter in issue is
also directly and substantially in issue in a previously instituted suit between the
same parties, or between parties under whom they or any of them claim
litigating under the same title where such suit is pending in the same or any
other Court in [India] have jurisdiction to grant the relief claimed, or in any
Court beyond the limits of [India] stablished or continued by [the Central
Government ***.] and having like jurisdiction, or before [the Supreme Court].
○ Explanation.—The pendency of a suit in a foreign Court does not preclude the
Courts in [India] from trying a suit founded on the same cause of action.
● Conditions:
○ There must be two suits, one previously instituted and the other subsequently.
○ Matter in issue in the subsequent suit - directly and substantially in issue in the
other pending suit also
○ Same parties or representatives
○ Same title
■ If title is different matter will change even if parties are same
○ Previously instituted suit pending
○ Court where former suit pending competent to try subsequent suit
○ Such parties must be litigating under the same title in both suits
● Additional: section 10 declares that no court should proceed with the trial of any suit in
which the matter in issue is directly and substantially in issue in a previously instituted
suit between the same parties and the court before which the previously instituted suit is
pending is competent to grant the relief sought.
● This does not preclude a court from passing interim orders such as grant of injunction or
stay, etc. It however applies to appeals.
● An application for stay under this section can be made at any stage of the suit (Pukhraj D
Jain v G Gopalakrishna 2004 SC - from Takwani)
● Case: Heinz Italia vs. Dabur India 2007 Kol HC

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 ○ Order of the court: It is true that another case is pending before Gurgoan
Court in respect of the same subject-matter between the parties where an interim
injunction was granted by the Apex Court against the respondents. But the case
before us is different because get up of trade mark or package relating to trade
mark GLUCON-D and the Dabur GLUCOSE-D is different. Since the appellants
could not produce any document to show that their names have been registered
with the Registrar of Trade Mark and Copyright and since the get up trade dress
including the colour of the package and the trade mark used by Dabur
GLUCOSE-D are not similar to that of GLUCON-D and since is no phonetic
similarity between the two and since the trade dress relating to trademark of
Dabur GLUCOSE-D has little scope to mislead the customers causing financial
loss to the appellants it cannot be said that the appellants having a prima facie
case, the balance of convenience is in their favour to get an order of injunction.
We therefore, feel that it is not a fit case to grant any order of injunction as prayed
by the appellants against the respondents. The appeal is, therefore, dismissed.
● Case: NIMHANS v. C. Parameshwara AIR 2005 SC 242 (Sushmita)
○ X, senior pharmacist in NIMHANS hospital removed from service for
misappropriation of drugs - hospital filed suit in civil court for reimbursement of
loss from misappropriation of drugs - pendente lite X filed complaint against
hospital in ID tribunal for setting aside termination order and reinstatement -
whether trial of case in ID tribunal barred by s.10? NO suit was not stayed by
○ V.Imp. -- Problem based questions. -- tricky
● Case will be kept on hold -- till the other court dispenses it or passes a judgement. -- after
this the court (2nd court) will decide the case based on the application of s.11 to dispose
the other case.
● Object: to prevent the courts of concurrent jurisdiction from simultaneously
entertaining and adjudicating upon two parallel litigation in respect of the same
cause of action, the same subject matter and the same relief.
● Additional: Even in cases where s.10 does not apply strictly, then a civil court has the
inherent power under section 151 to stay a suit in order to "achieve ends of justice".
● Decree passed in contravention of s.10 is not a nullity and therefore cannot be
disregarded in execution proceedings.

RES JUDICATA - SECTION 11 judicata

● 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, litigating under the
same title, in a Court competent to try such subsequent suit or the suit in which such
issue has been subsequently raised, and has been heard and finally decided by such
Court.
● Conditions:
○ Matter directly and substantially in issue is same actually or constructively
○ Former suit or issue
○ Same parties or representatives

20
 ○ Litigating under same title
○ Court has decided former suit -- competent to try subsequent suit also
○ Matter subsequently and directly in issue heard finally decided by court
■ S.10 -legal issues are still pending
■ S.11 - legal issues and legal questions are not pending in the 1st court --
the case has been heard and decided on merits.
● Appeals do not fall under s.11
● Expl. 1- date of decision is relevant (s.10 date of filing the case is relevant)
● Is conceived in the larger public interest which requires that all litigation must sooner
than later come to an end.

Matter directly and substantially in issue in subsequent same as in former suit

actually (Expl. III - actual res judicata) or constructively (Expl. IV -
constructive res judicata).
● Expl.3 and Expl.4 have to be read together
● Actual - orally or written raised
● Constructive - ought to have been raised - parties did not raise it - not allowed to raise
this ground again.
● Constructive - mandates that parties have to be careful and raise all grounds -- such
grounds cant be raised in appeal neither can be filed in/as another suit. --
● Request to trial court to add the statement can be done -- but is at the discretion of the
trial court.
● Case: State of UP v. Nawab Hussain - AIR 1977 SC 1680
○ WP by SI against dismissal order by DIG of Police on grounds of audi alteram
partem - WP dismissed on merits - SI filed suit to set aside dismissal order on
grounds if DIG’s lack of authority for such dismissal order
○ Expln.IV -- 1st WP SI didn't raise ground of lack of authority, hence 2nd WP is
barred by constructive res judicata.
○ SI should've raised lack of authority in the 1st WP along with audi alteram
partem. Hence barred by constructive res judicata as any ground not raised in 1st
case cannot be raised in the 2nd case/appeal.

Former suit or issue (Expl. I)

● Case: Mathura Prasad v. Dossibai N.B. Jeejeebhoy AIR 1971 SC 2355
○ D obtained purposive lease over land for construction in Bombay - after
construction, D applied to the court for rent-determination under BRRCA -
application rejected on the ground that Act not applicable to open grounds - D
applied for rent determination again
○ CH: Pure questions of law are not barred by res judicata.
● Same Parties or representatives
○ Only if 2nd case has been filed between the same parties to the 1st suit
○ Also applicable to co-plaintiffs and co-defendants -- res judicata and minor -- res
judicata and representative suit (Expl. VI).

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 ■ Eg: R3 files against P1 wrt to point no.4 of the case -- res judicata
applicable
■ Eg: P2 and P3 -- res judicata would apply if the issues were raised in the
1st case. If new issue then res judicata not applicable as the issue in 2nd
case could not have been raised in the 1st case at all.
○ Res judicata and minor -- if in the 1st case one of the party is a minor and the
legal guardian is also a party, what will happen when the minor becomes an adult:
○ Mahboob Sahab v Syed Ismail 1995 -
■ X gifter property to minor songs Y,Z - X and his wife sold property to D -
D sued X and wife and Y and Z for mandatory injunction to execute sale
deed - suit decreed on merits and sale deed executed - after attaining
majority, Y&Z sued D and X for declaration the sale as not valid
■ SC: case is not barred by res judicata as one of the grounds is that the legal
guardian had defrauded the minor (which is an additional issue) and the
1st case is defeated
● Same Parties litigating under same title:
○ Eg: A is a tenant and an executor of a will -- 2 cases against B (will and
tenancy)-- not barred even if against the same parties -- issues different as title
also different.

Court that decided former suit competent to try subsequent suit also (expl II
and VIII)
● Sulochana Amma v Narayan Nair
○ A vested life estate to K and R as reversioner - after A’s death, K sold property to
N and executed sale deed - R sued K and obtained decree of declaration and
injunction from district munsif court - X purchased property from N pendente lite
- R sued X in Subordinate court’s jurisdiction for res judicata
○ 1st case filed in Munsif and 2nd case filed in subordinate court -- pecuniary
jurisdiction different due to mense profit -- both cases decided on merits -- both
cases passed -- argument regarding non maintainability was raised as 2nd case
was barred by res judicata as 1st case was decided by munsif court that does not
have the jurisdiction -- Based on explanation 8 of s.11 issues relating to
declaration of title res judicata would be applied, but for mense profit would not
be barred as it wasnt raised in the munsif court
○ Res judicata can be applicable to parts of a case as well (unlike s.10).

Matter substantially and directly in issue heard and finally decided by the
court on merits (Expl. V)
● If not on merits (eg. on grounds of jurisdiction) then res judicata would not be applicable.
● State of Maharashtra v M/s National Construction Co. 1996
○ Tender contract with Bank’s performance guarantee - state sued Bank for
enforcing performance guarantee in 1972 in Bom HC - suit dismissed for
technical grounds of non-joinder of necessary party (NC) in 1983 - State filed suit

22
 in CJ (Sr Div) against NC and Bank for compensation for breach of contract - Is
2nd suit barred by res judicata?
○ 2 separate cause of action -- performance guarantee and bank guarantee -- 1st case
was of (cause of action is) performance guarantee and was dismissed on technical
ground -- 2nd case was filed for breach of contract against principle debtor and
bank as surety, argument of bank was that 2nd case was not maintainable as its
barred by res judicata -- bank has a separate liability -- issues also became
different (construction contract and performance guarantee contract) -- res
judicata not applicable -- Case 1: Issues in performance guarantee case are
different from issues in breach of construction contract case -- 2nd case on breach
of construction contract is not barred by res judicata
○ How would the answer change if state files another suit against bank on
performance guarantee with principal-debtor as defendant no.2? -- Will not be
barred as the first case was decided merely on technical grounds and not on
merits.

Difference between Res judicata and Res Subjudice

● Matter adjudicated upon || matter pending trial
● Trial of suit/issue decided in former suit || pending suits only, not issues
● Trial of suit/issue decided in former suit barred || proceeding with trial of suit
subsequently barred
● Court where 1st suit is pending has jurisdiction to decide 2nd suit as well || Court which
decided on 1st suit/issue need not be competent to decide 2nd suit
● S. 10 is not dismissed and is only suspended -- s. 11 cases are dismissed
● S.11 courts should be concurrent -- s.10 court doesn't matter

RES JUDICATA AND WRITS

● CPC is not applicable to writ petitions.(procedure wise)
● (Very Imp) Daryao v State of UP 1961
○ 6 WPs were filed in HC for rt to property disputes - different facts, common
issues of law - HC dismissed all WPs on merits - WP filed in Sc - D claimed res
judicata not applicable to FR(vimp)
○ Q: Whether WP to SC u/Art.32 is barred by res judicata on ground that same
dispute already decided in WP to HC u/Art.226?
○ Usually res judicata does not apply in cases of appeal --
○ SC told that jurisdiction of the WP (art.226 and art.32) as both are at par with
each other. (even though art.226 is wider, but both are same)
○ res judicata would bar the WP as it involves the same question of law which is
essential and WPs usually have the same jurisdictional effect (concurrent
jurisdiction).
○ If writ appeal then no bar
○ Ratio: HC u/Art.226 has concurrent jurisdiction as SC u/Art.32. And res
judicata would be applicable. But writ appeal can be filed.
● Res Judicata Applicable to WP except habeas corpus

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 ○ Ghulam Sarwar v. UoI AIR 1967 SC 1335
■ Pakistani national in India on journalism relate visa was arrested without
charges -- filed writ of habeas corpus in the HC -- released and arrested
him again and filed the 2nd habeas corpus WP -- state argued that 2nd
case is barred by res judicata as SC made res judicata applicable to writ
petitions -- cause of action changes wrt habeas corpus as each day of
imprisonment is a new cause of action. HENCE HABEAS CORPUS IS
NOT BOUND BY RES JUDICATA BUT OTHER WRITS ARE.

FOREIGN JUDGEMENT
● S.2(6) -- judgement passed by a foreign court.
● Ss. 13, 14, 44A.
● Section 13 declares foreign judgment to be conclusive on the matter directly adjudicated
upon between the same parties or parties under whom they claim under the same title.
● If CPC recognises foreign judgment and res judicata
● One of the parties is an Indian (minimum criteria) and wants to file a second case on the
same issue in the Indian courts.

Exceptions when foreign judgment not enforceable between the parties in

India:
● Foreign judgement as res judicata -- sec.13 unless…(grounds on which res judicata wont
be applicable)
a. Pronounced by court not of competent jurisdiction
■ Jurisdiction of foreign court would be conferred when:
■ Person is subject to foreign country
● Eg: civil transactions between two indian tourists in NY wont be
applicable before the NY Courts -- case can be directly dealt with in India
itself.
■ One of the person should be a subject of the foreign country (resident, domicile,
citizen, etc) -- foreign court will get jurisdiction -- even applicable when person
was temporarily present and was served summons in that country
■ Person is resident of foreign country when action commenced
■ Person is temporarily present in foreign country when summons served
■ Person sued as plaintiff in earlier case in foreign country
■ Party voluntarily appears on summons or submits to jurisdiction.
b. Not on merit
○ Case: International Woollen Mills v. Standard Wool (U.K) Ltd. AIR
2000 P&H 182 - Every ex-parte decree does not necessarily mean that it
was not given on merits of the case.
c. Proceedings are founded on incorrect view of international law or refusal to
recognise law in India
■ Case: Anubha vs. Vikas Aggarwal AIR 2003 Del 175.

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 ● Grounds of divorce based on irretrievable breakdown of marriage (IBM) --
case filed in foreign country which had grounds of irretrievable
breakdown of marriage for divorce -- wife filed RCR case in Del Fam
Court -- husband argued that divorce order already obtained in foreign
court -- del fam court refused to accept the foreign judgement as IBM was
not recognised in India -- parties were indian, dispute was based on HMA
so foreign court had to apply HMA -- hence not recognised
d. Proceedings opposed to natural justice
e. Proceedings where judgement obtained by fraud
f. Judgement sustains claim based on breach on any Indian law.
■ Eg: Insider trading, prostitution, sale of weed is prohibited in Indian law -- certain
countries do not prohibit such acts -- when there is any transaction with one of the
party being Indian, and there is a civil dispute and foreign courts applies their law,
such foreign judgements are not recognised in India.
○ Sec: 14 -- Presumption of judgement to be by foreign court of competent jurisdiction -
burden of proof on party alleging exception under s.13
○ Courts usually consider the law to be applicable
○ Its up to the party to raise the objection against the enforcement of the foreign
judgement.
● Execution of foreign judgement:
● Section 44A
○ execution proceedings under Section 44-A of CPC
● Suit of foreign judgment
● Case: Badat & Co. vs. East India trading Co AIR 1964 SC

OBJECTION TO JURISDICTION - SECTION 21, 21A

● Generally Def challenges jurisdiction of trial court
● When to object jurisdiction:
○ At the earliest possible opportunities
○ Before issues are settled in OS
■ Basically when WS is filed by Def
○ Consequent failure of justice due to jurisdiction error
○ If above not complied - objection on jurisdiction not allowed in appellate stages
■ Can file under SLP under Art.136
○ Applicable to subject-matter, pecuniar, territorial jurisdiction grounds
● Where to raise objection
○ In the trial court itself
○ In appellate court - when objection is raised in trial court and dismissed by trial
court
● Sec 21A -
○ Res judicata
○ Suit challenging decree in earlier suit on territorial jurisdiction grounds - barred

25
TRANSFER OF SUITS - SECTION 22 TO 25
● Multiple courts with concurrent jurisdiction - defendant apply for transfer
○ Territorial jurisdiction (Ss. 16-20 CPC)
● Procedure - S.22
○ File application for transfer by def at earliest possible opportunity
○ Notice to all parties
○ Court must give reasonable opportunity to raise objection by all parties
○ Transfer of court of competent jurisdiction only
○ not an IA but rather as a Misc Appl
● S.23 - Where to file
○ If there are multiple courts under same appellate jurisdiction - application to that
appellate court
■ Example: Suit filed in Danapur CJ (JD) Patna city for property dispute -
part of property in Paliganj CJ (JD) Patna - appellant court is common
which is Patna District Court - D wants to transfer suit to Paliganj CJ (JD)
- D to file Misc Appl in Patna District court
○ Multiple courts under different appellate court but under same HC - application to
the HC
■ Example: suit filed in Bangalore and part of cause of action arose in
Mysore - under Kar HC - transfer application filed under Kar HC
○ Multiple courts under different HC - application to the HC under which the court
where the suit is pending is situated
■ Example: suit filed in Mysore for property dispute - part of property in
Wayanad Kerala - Def wants to transfer to Wayanad - application to be
file in Kar HC as suit is pending in Mysore Civil Court which is
subordinate to Kar HC
● Sec.24 - Power of HC and DC to transfer suit
○ On application of Def or suo motu
○ Transfer own case to subordinate court
○ Withdraw from subordinate court for trial by itself or transfer to another
subordinate court
○ Retransfer
○ On transfer, can direct the point (stage) from where the case is to be continued
(start or from any stage of transfer)
○ Transfer of suit/case by HC or DC to court without jurisdiction also
● Grounds:
○ Reasonable apprehension of denial of justice has to be proven by Def
■ No fixed grounds, can depend on situation
○ Not mere suspicion or convenience of parties
■ Matrimonial cases - usually based on conv of wife
○ No objection from other parties
● Sec.25 - Power of Sc to transfer cases
○ Not suo motu but rather on application of party only with affidavit
○ Notice to parties
○ Direction to transfer any suit/case from civil court from one state to another -
expedient for ends of justice

26
 ○ Directions on point from where the case to be continued (from start or from stage
of transfer) - as per law of court where case/suit first filed to be applied to
suit/case
○ Compensation to opposite party (max ₹2000) against frivolous or vexatious
transfer applications
○ Nisikant Sukerkar v Govt of India 2003
○ GC Care Centre & Hospital v O.R Case pvt ltd 2004
○ Chitivasala Jute Mills v M/s Jaypee Rewa Cement 2004

ORDER I
● The primary object of joinder of parties is that all suits must be decided finally and
conclusively in the presence of all concerned parties on merits.
● A party may be added as plaintiff or defendant if the right to relief arises out of the same
act/transaction and there is common question of law/fact (Rules 1, 3)
● If party is joined as plaintiff or defendant without the above two requirements, it is
misjoinder of parties.
● If joinder of parties embarrasses or delays trial, court may order separate trials for the
parties (Rules 2, 3A)
● No person can be joined as plaintiff without his consent (Rule 10(3) vi. Plaintiff is the
best judge of his own interest and has the right to choose his adversary without
interference of the court.
● It is the duty of the court to ensure justice and for that end, the court may add / delete /
substitute / transpose a party, suo motu or on application of a party, at any stage of the
suit, without consent of the plaintiff (Rule 10(1), 10(2)
○ Razia Begum v. Sahebzadi Anwar Begum (AIR 1958 SC 886)
● Where a party is added as defendant, plaint is to be amended (Rule 10(4) ix. Where a
party is added as defendant, the proceedings / suit/ case against him shall be deemed to
start from the date of service of summons on the new defendant for the purposes of
determining period of limitation as per the Limitation Act. (Rule 10(5) x. The court
cannot add / delete / substitute / transpose a party if it alters the cause of action or results
in de novo(completely new) cause of action.
● Objection regarding misjoinder or non-joinder of parties must be taken at earliest possible
opportunity. If not so taken, it is considered to be waived (Rule 13)
● Suit cannot be dismissed for misjoinder or non-joinder of parties, the plaint may be
returned for amendment (Rule 9). Suit may be dismissed for non-joinder of necessary
party (Rule 9)
● Necessary party is a party without whom effective decree cannot be passed in the suit.
Proper party is a party whose presence helps the court to adjudicate on the suit more
effectively but without whom effective decree can be passed.
● Ramesh Hiranand v. Municipal Corporation, Greater Bombay (1992) 2 SCC
524, LIC v, Gangadhar (AIR 1990 SC 185)

REPRESENTATIVE SUIT
● Order I Rule 8 read with sec.11 expl. VI.

27
● (Explanation VI.—Where persons litigate bona fide in respect of a public right or of a
private right claimed in common for themselves and others, all persons interested in such
right shall, for the purposes of this section, be deemed to claim under the persons so
litigating .)
○ Private right that is common to multiple set if people -- all such persons interested
in the pvt right shall be deem to have a claim -- (basically similar to class action)
--
○ What will happen if def is same, claim is same but plaintiff is different -- not
barred by res judicata ideally -- BUT -- explain.6 -- barred due to the fact that
others have a ‘deemed claim’ along with the original plaintiff -- law has created a
fiction that maria has claimed with me and shashank in the first case (eg given by
maam).
○ Not constructive res judicata as its not related to the issue, but here its related to
the party
● Conditions:
○ Numerous parties
■ no limit on number of parties but should be capable of ascertainment, such
inhabitants of a village.
○ Same interest in suit
■ Same interest need not necessarily amount to same cause of action
■ T.N. Housing Board v. T. N. Ganapthy (AIR 1990 SC 642)
○ Permission granted by court
■ has to be sought at the earliest possible opportunity to allow the suit to be
tried as representative suit.
○ Notice to all parties represented by court
■ Such notice is mandatory. If notice is not given to all interested persons,
decree not binding on non-parties.
● TN Housing Board v Ganapathy 1990
○ Houses allotted to LIC by board - applicants paid settled prince - board demanded
additional amount through individual notices - allotted filed representative suity -
Board claimed individual notices means different cause of action and interest
● Order I Rule 8 -- One person may sue or defend on behalf of all in same interest
● Difference with PIL -- person filing it is not claiming or is not aggrieved in PIL and in
representative suit, the person himself is seeking redressal as well.
● General rule -- only an aggrieved person can approach the court -- exception is PIL,
representative suit.
● Numerous persons (not parties) has not been defined -- but the courts have explained
what shall come under the scope of numerous parties --substantial and ascertained -- can
be calculated --
● Same legal interest -- right to relief/remedy is arising from the same act from the same
defendant
● Permission should be granted by the court.
● TN Housing Board Case -- as interest is same event though right violated is of different
persons and is different -- SC O1R8 doesn't mandate the same cause of action, it only
mandates the same legal interest.
● Procedure -

28
 ○ Notice to all persons interested in suit -- Court permission
○ Person represented in suit -- apply to be added as party u/r.8(3). → provided that
the person is not satisfied with the rep. or even if the court feels the same that the
plaintiff is not carrying the suit properly (court is concerned about the people’s
right and thus the court can ask another person to be substituted as plaintiff --
wide power of the court).
○ Original party can be substituted by court u/r8(5)
○ Withdrawal/Abandonment of Rep Suit u/O23r.1(5).-- notice to be sent to others
and have consented or court can substitute
○ Compromise of representative suit u/O.23r.3B -- normal civil case its allowed --
but for rep suits compromise has to be accepted by all persons in the rep suit
○ Decree in rep suit acts as res judicata for all persons represented in suit (though
not parties to suit) -- sec.11 expl VI.
● If suit not properly conducted, any person on whose behalf representative suit filed, can
apply to court to be added as party to suit- (Rule 8(3)
● If party not proceeding with case with due diligence, court may substitute original party
with another having same interest – (Rule 8(5)
● No abandonment or withdrawal of suit or claim in suit by plaintiff under Order 23 or
compromise with defendant is allowed without notice to all interested persons and leave
of court.
● Representative suit is not abated on death of party conducting the suit, other interested
person is added as party to suit which continues.
● The court may allow persons or group of persons to present their opinion and participate
in the suit if the group of persons is interested in a question of law directly and
substantially in issue in the suit and is necessary in public interest – (Rule 8A)

JOINDER OF PARTIES :
● Audi alteram partem
● Institution of suit - sec.26 r/w Or.IV.R.1
● Joinder of Parties -- Order I
○ All suits be decided finally in presence of all praties involved in dispute, on merits
00 avoid multiplicity of judicial proceedings. (ensure that no one is missed out
and audi alteram partem
● Joinder of Plaintiffs - Rule 1,2
○ Right to relief to all from the same act or transaction and
○ If separate suit filed, common questions or law or fact arise
○ Then they can be joined in the same case
○ Eg: X commits nuisance over Y’s house, occupied by Z. Can Y and Z file a single
suit ove X?
○ Rep suit cant be filed here, but can file joinder case (right here is different as
landlord right is diff from tenant right

Joinder of Defendants - Rule 3, 3A, 5, 6, 7

● Right to relief against all from same act/transaction and

29
 ● If separate suit filed, common questions of law/fact arise
● Accident between 2 cars P and Q due to negligence of both - S a pedestrian injured - if
there can be a single suit against P and Q filed by S
● yes it can be filed as cause of action is the negligent driving of both drivers -- separate
cases can also be filed as there are common questions of fact/law (eg: extent of
compensation arising due to accident caused by both P and Q, questions of law that
would be common is whether or not both of the drivers are negligent || contributory
negligence...)
● Rule 5 -- extent of relief can be varying of all defendants.
● Rule 6 -- where they are parties who are jointly and severally liable from one contract,
then the plaintiff can file one single case against all the parties.
● Rule 7 -- if plaintiff has doubt against whom the legal right is to be enforced, he can add
all possible persons and the court shall decide and clarify.

Necessary and Proper Parties:

● Necessary parties -- presence indispensable for effective disposal of suit and without
whose presence relief cant be adequately provided.
○ Eviction suit -- is tenant NP??? -- yes
● Proper parties -- presence required for deciding suit by effective order can be passed
without party
○ They can be disconnected to the relief sought
○ Eg: when circumstantial evidence is involved
○ Required but not mandatory
○ Eviction suit by landlord -- is subtenant PP??? -- yes -- main tenant would be NP.
● Ramesh Hirachand v Municpal Corpn Greater Mumbai 1992 -
○ Govt leased petrol station to HP - HP hired R as a dealer - MC issued notice to R
for demolition of construction by R on the property encroaching on public path -
R sued MC for injunction - HP filed an IA to be added as necessary party as R
was also violating dealer contract terms by such construction -- if HP is
indispensable to the case -- HP cant be the necessary party as the claim is against
R. HP can be the proper party as the claim is solely against R.
● Razia Begum vs. Sahebzadai Begum AIR 1958 SC.

Rule 9 - Misjoinder and Non-joinder

● Misjoinder - persons ought not to be joined as parties to suit u/O1,R1,3 but have been
joined
○ Added without cause
○ Wrongly added persons -- too many unwanted persons for the case as P’tiff or Def
● Non-joinder -- Persons ought to have been joined as parties to suit u/OIR1,2 have not
been joined
○ Need to have been added for effective disposal of the case
● General principle of rule 9 -- if mistake has been done in adding persons, then it would
not be considered as invalidating error… its a mere irregularity.
● These are mistakes in drafting
● These mistakes are irregularities and will not invalidate the suit proceedings

30
● Proviso -- this irregularity is not acceptable if the parties not added are necessary party,
the suit shall be dismissed (defeated).
● Misjoinder and non joinder of PP is irregularity.
● Non joinder of NP is a ground of dismissal.
● Rule 13 -- objections to misjoinder or nonjoinder
● Power of court un joinder of parties -- Rule 10, 8A
○ Rule 10(2) -- court can strike out parties (can be even done suo motu)
○ Nonjoinders of NP -- can either dismiss the case or can even allow a person to be
added in the case as defendant (power of trial court).
○ Add, strike out, remove, substitute, transpose
■ Transpose -- designation of party changes
○ Power of court in joinder Rule 10, 8A
■ Suit filed in name of wrong person as plaintiff
■ Bonafide mistake
■ Addition/substitution of person necessary to determine real dispute
■ No person added as plaintiff without consent
■ but defendant can be added without consent.
○ Allow persons to present opinion and participate in suit if interested in substantial
issue in suit and necessary to be heard in public interest
● Several causes of action may be joined in single suit in certain circumstances.
○ One plaintiff, One defendant, Several causes of action
■ Plaintiff can join several causes of action in single suit against single
defendant IF plaintiff is entitled to relief and defendant is liable for all the
causes of action. If above condition not fulfilled, suit is bad for misjoinder
of causes of action. Suit is not to be dismissed but returned for
amendment.
■ Jay Industries v. Nakson Industries (AIR 1992 Delhi 338),
■ Ajoy K Saha v. Ashok Leyland Finance Ltd 2005(1) CHN 572 (Cal)
○ Several Plaintiffs, One Defendant, Several Causes of action
■ Several plaintiffs can join several causes of action in single suit against
single defendant IF all the plaintiffs are jointly entitled to relief and the
defendant is liable on all the causes of action. Order I Rule 1 to be
complied with to add several persons as plaintiffs. If the above conditions
not fulfilled, suit is bad for misjoinder of plaintiffs and causes of action.
Suit cannot be dismissed on this ground but returned for amendment
○ One Plaintiff, Several Defendants, Several Causes of action
■ The plaintiff can join several causes of action in single suit against several
defendants IF all the defendants are jointly liable on all the causes of
action. Order I Rule 3 to be complied with to add several persons as
defendants. If above conditions not fulfilled, suit is bad for misjoinder of
defendants and causes of action and suit may be dismissed on this ground.
○ Several Plaintiffs, Several Defendants, Several Causes of action
■ Several plaintiffs can join several causes of action in single suit against
several defendants IF all the plaintiffs are jointly entitled to relief and all
the defendants are jointly liable on all the causes of action. Order I Rule 3
to be complied with to add several persons as defendants. If above

31
 conditions not fulfilled, suit is bad for misjoinder of defendants and
causes of action and suit may be dismissed on this ground.
● Misjoinder of defendants and misjoinder of causes of action together results in
Multifariousness and suit is liable to be dismissed on the ground of multifariousness.

ORDER II

● Conditions to be fulfilled for suit to be barred under Order II Rule 2:

○ The subsequent suit must be based on same cause of action as the former decided
suit.
○ The plaintiff entitled to more than one relief for the same cause of action.
○ The plaintiff omitted to sue for one or more the relief in the former suit, for which
the subsequent suit is filed.
● State of Maharashtra v. National Construction Co. (AIR 1996 SC 2367), Kewal Singh v
Lajwanti (AIR 1980 SC 161)

SPLITTING OF CLAIMS AND REMEDIES - ORDER II RULE 2

● Splitting of claims prohibited:
○ When single cause of action gives rise to multiple claims
○ When whole claim relating to single cause of action in suit
○ If any claim related to a single cause of action is not included then its deemed to
be relinquished by plaintiff
○ Plaintiff will not be allowed to file 2nd suit for that particular claim again
○ Example: Doctor’s negligence - P injured - P sues claiming compensation under
tort of negligence - case decided on merits and disposed off - P files another suit
under Med Neg Act that covers same cause of action - the suit under MNA will be
barred under Order II
○ Similar to constructive res judicata - Sec 11 Expln 4 or 6
● Splitting of remedies prohibited:
○ When single cause of action gives rise to multiple remedies because of different
set of laws acting on that cause of action - then all those remedies should be
prayed for together by the Plaintiff
■ If not included the law considers it to be relinquished
○ If any remedy related to single cause of action not prayed for then deemed to be
relinquished
○ Example: P sued for recovery of principal-debt and obtained a decree - forgets to
pray for interest - case decided in favour of P - P files another suit for interest -
not allowed to file another suit to recover interest
● Rationale: Defendant not to be vexed twice over same cause of action
○ Related closely to constructive res judicata

32
ORDER II RULE 2 - BAR ON SECOND SUIT
● When
○ 2nd suit for same cause of action between same parties as 1st suit
○ P entitled to more than one claim or relief for same cause of action
○ Plaintiff omitted to on more than one claim or relief in 1st suit and files 2nd suit
for the same

ORDER II RULE 3 - SEVERAL CAUSES OF ACTION MAY BE JOINED

IN A SINGLE SUIT
● Can be joined in a single suit when:
○ 1 P, 1D and several causes of action
■ Jay Industries v Nakon Industries 1992
○ Several P, 1 D and several causes of action
■ Different from rep suit
■ Haramoni Dassi and Ors v Hari Chum Chowdhry 1895
○ 1 P, several D and several causes of action
○ Several P, Several D and several causes of action
● Multifariousness:
○ Technical grounds for dismissal - not barred by res judicata
○ When there is misjoinder of defs and misjoinder of cause of action
○ When Order I R3 and Order II R3 are violated
○ Court can strike our causes of action in misjoinder of cause of action (not
multifarious -- will be multifarious if misjoinder of defs + cause of action
misjoinder)
○ Brajabala Barua v Guhati Bank Ltd & Ors 1962 - case dismissed on grounds of
multifariousness

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 UNIT 3: PLEADINGS
PLAINT - ORDER VII r/w ORDER VI

ESSENTIAL ELEMENTS OF PLAINT: Order VII Rules 1-8

● Name of the court; name and place of residence of plaintiff and defendant; fact of
plaintiff/defendant being a minor or of unsound mind; jurisdiction of court; reliefs
claimed; value of subject-matter of suit; portion of claim relinquished by plaintiff (Rule
1); interest and liability of defendant in suit (Rule 5)
● Cause of action – facts constituting cause of action and date of cause of action
● Where plaintiff claims relief for several causes of action based on distinct grounds, the
causes of action to be stated separately and distinctly. (Rule 8)
● Reliefs claimed by plaintiff
● The documents to support cause of action or suit in original with plaint. If documents are
not produced, plaintiff is not allowed to use such documents or their effect as evidence
without leave of court. (Rule 14)
● If suit is time-barred, the grounds for exemption from law of limitation (Rule 6)
● In suit for recovery of money, the exact amount claimed. In claim of accounts or mesne
profits, the approximate amount (Rule 2)
● In suit relating to immovable property, description of property with survey numbers,
boundaries (Rule 3)
● In representative suit, fact of plaintiff’s actual interest in subject matter along with the
requirements for representative suit as per Order I Rule 8 (Rule 4)

RETURN OF PLAINT: (Order VII Rule 10, 10-A, 10-B)

● Court order return of plaint at any stage of the suit
● on the ground of want of jurisdiction.
● court to endorse the date of presentation of the plaint, name of plaintiff and reasons for
returning the plaint.
● Returned plaint filed in proper court – to be freshly heard and not continued.
● order of return of plaint - appeal allowed under Order XLIII Rule 1.
● Allahabad Bank v Shank (Steel Fab Pvt Ltd) AIR 2008 Cal 96;
● Amar Chand v Union of India AIR 1973 SC 313

REJECTION OF PLAINT: (Order VII Rule 11, 12, 13)

● Rule 11 - Grounds at any stage of the suit:
○ non-disclosure of cause of action
■ ITC Ltd v Debt Recovery Appellate Tribunal AIR 1998 SC 634;
● Letter of credit given by bank to sellers for payment of goods by
buyer - seller demanded payment under Bank guarantee - bank
refused and sued buyer and seller for prohibitory injunction and

34
 damages against seller, claiming fraud on sellers part as no
movement of goods - issues framed - seller claimed rejection of
plaint under order 7 Rule 11 - whether allegation of fraud on
ground of non-movement of goods discloses cause of action of
fraud and whether plaint to be rejected after issues framed?
○ Held that allegation of fraud is not creating a cause of
action in favour of bank - so bank has no locus standi and
no cause of action
■ Shakti Sugars Ltd v Union of India AIR 1981 Del 212;
● P alleged State Trading Corp to be agent of UoI and sued - STC
not agent of UoI - cause of action was not clearly disclosed - plaint
rejected against STC only
■ SNP Shipping Services Pvt Ltd v. World Tanker Carrier Corporation
AIR 2000 Bom 34
○ Suit/relief undervalued and not corrected valuation within time given by court
(court fees)
○ Plaint insufficiently stamped and not corrected within time given by court
○ Plaint is not filed in duplicate
○ Suit is barred by law – res judicata/limitation/any other law.
○ Plaintiff has not complied with Rule 9, i.e., not paid the fees for service of
summons with time given by court.
○ Any other grounds – example vexatious/frivolous etc
● Effects:
○ Court has to record reasons for rejection of plaint in writing (Rule 12)
○ no res judicata on order rejecting plaint - fresh suit can be filed after correction
made in the rejected plaint (Rule 13)
○ Order rejecting plaint - deemed decree - appeal allowed.

PLEADINGS - ORDER VI

FUNDAMENTAL / BASIC RULES OF PLEADINGS (Rules 2 – 15)

● Object: to ascertain real dispute between parties and to prevent surprise to the other party
at hearing.
● Pleadings means plaint or written statement (Rule 1)
○ Statement in writing drawn up
○ Filed by each party
○ Stating contentions at trial, giving details that opponent needs to know to prepare
his/her answer
● Pleadings to state:
○ facts not law
■ if mixed question of law and fact, party to plead it.
○ All and only material facts
■ failure to include all material facts may lead to dismissal of suit or striking
out of defence.

35
 ■ Primary basic facts on which plaintiff’s cause of action/defendant’s
defence rests
■ No evidence allied if material fact not pleaded
○ Only facts, not evidence
○ facts in concise form (Rule 2)
○ Virendra Nath v Satpal SIngh 2007 SC
■ Election petition alleged double voting and voting of dead persons -
number and name of voters expressly stated - whether details of
impersonators to be expressly pleaded - details of impersonators would
be evidence and not facts
● Pleading of misrepresentation, fraud, breach of trust, undue influence, willful default etc
(Rule 4)
○ Particulars with dates to be stated, mere stating it is not sufficient
● Pleading of performance or non-performance of condition precedent (Rule 6)
○ Implied non performance of condition precedent to be expressly pleaded
○ Performance of condition precedent not to be pleaded
○ Example: Contract for construction between X and Y -- X to pay on condition of
Y’s architect signing bill -- X fails to pay and Y sued -- condition precedent of Y’s
architect signing bill need not be pleaded by Y -- X to plead that condition
precedent not fulfilled (Y’s architect did not sign)
● Departure from previous pleadings (Rule 7)
○ Departure from pleadings not permitted except by amendment
○ Inconsistent pleadings prohibited
○ but alternate pleadings allowed (by specific statutes)
■ Example: specific performance or damages for breach, RCR or divorce,
eviction for personal requirement or non payment of rent
○ Party allowed to include alternative pleadings even if inconsistent, though the
court would look upon such pleadings with suspicion. Once the court has given a
decision on a definite stand taken by a party on one of the alternative pleadings,
the party is not allowed to change such pleadings.
■ Prem Raj v. D.L.F Housing & Construction Co. AIR 1968 SC 1355
● Sued that contract was void due to undue influence and sought
specific performance -- CH: specific performance sought first and
if it fails then contractual remedy, and as plaintiff sought
cancellation or rescission first. If alternate pleadings allowed it is
to be allowed based on strict process
● Bare denial of fact of contract and not its validity or legality (Rule 8)
○ Denial of fact of contract, not denial of validity or legality of contract
○ If denial missing - its proven in court that there was a contract def wont be able to
challenge it later
● Pleading effect of documents (Rule 9)
○ Effect of documents to be pleaded (including notice to party as material fact)
○ Precise words, contents of documents not required as its usually annexed to the
WS
● Pleading of malice, fraudulent intention, knowledge (Rule 10)
○ Evidence or circumstances leading to these not to be stated

36
 ● Pleading notice to opposite party (Rule 11)
● Pleading implied contract or relation through series of letters or conversations (Rule 12)
○ Implied contracts or relations to be stated as fact
○ Circumstances leading to these need not be stated
● Pleading of facts which law presumes in favour or places burden of proof on other party
(Rule 13)
○ Need not be pleaded
○ Eg: validity of registered documents
● Pleadings to be signed by the party (Rule 14)
● Pleadings to contain address of party and opposite party. False or fictitious address by
plaintiff or defendant (Rule 14-A)
● Verification and affidavit by party (Rule 15)
● Striking out pleadings (Rule 16) by the court at any stage of the suit on any of the
following grounds:
○ The pleading is unnecessary, scandalous, frivolous or vexatious;
○ The pleading tends to prejudice or delay fair trial of the suit;
○ The pleading is an abuse of the process of court.

AMENDMENT OF PLEADINGS
● Amendment allowed before trial commences if:
○ Amendment necessary to determine real dispute between the parties; and
○ Amendment can be allowed without injustice to opposite party which cannot be
compensated with costs.
● Example: party wrongly described, some properties omitted from plaint inadvertently;
mistake in stating cause of action in plaint; suit brought under wrong Act; bona fide
omission in making necessary averment in plaint.
○ Jai Jai Ram Manohar Lal v National Building Material Supply 1969 SC
● Amendment allowed after trial commences if (i), (ii) above and:
○ Party could not have raised the plea before in spite of due diligence due to
subsequent events after institution of suit
○ For instance, during trial of suit for declaration of title, if the plaintiff is forcefully
dispossessed of immovable property by the defendant, amendment can be allowed
to include relief of recovery of possession of property and permanent injunction.
● When Amendment not allowed:
○ If amendment is not necessary to determine real dispute between the parties or
without substance
■ For instance, where plaintiff’s property was damaged by A and B, plaintiff
obtained judgment against A in separate suit, B sought to amend his
written statement to include the judgment against A as bar to suit against
B. Amendment not allowed as it is not necessary to determine the real
dispute between the plaintiff and B.
○ If amendment introduces a totally different, new, inconsistent case or changes the
fundamental character of the plaint/defence.
■ K.C. Taneja v. Pramod Kumar Taneja 1997 AIHC 1508 (Delhi),
■ Modi Spinning & Weaving Mills Co v. Ladha Ram & Co. 1977 SC

37
 ○ If the effect of the amendment is to take away legal right accrued in favour of the
opposite party.
■ Steward v North Metropolitan Tramways Co. (1886) 16 QB 178 (CA),
○ If amendment application is not made bona fide
● Amendment to be done within time specified by the court in the order or within 14 days
(Rule 18)

SUMMONS - ORDER V
● Object: audi alteram partem
● Importance: Rules 1, 2 - If summons not duly served, decree not binding on defendant.
● Sent by the court only.
● Contents
○ Place of residence of defendants
○ Time required to serve summons
○ Date of appearance of defendant
○ Whether summons for settlement of issues or is it for final disposal
■ If final disposal the defendant has to produce evidence
○ Siganture of judge and seal of court
○ Annexure - copy of plaint

Modes of Service of Summons

● Personal service Rules 9 – 15
○ Acknowledgment of summons by person receiving it (Rule 16)
○ Bhabia Devi v Parmanand Prasad AIR 1997 SC 1919
○ Endorsement of summons by serving officer (Rule 18)
○ Handed over by the court officer -- goes to the address of the defendant
■ Address is provided by the plaintiff.
○ Defendant within court jurisdiction (R.9)
■ Court officer to defendant in person or agent, as far as practicable (Rule
10, 12).
■ RPAD/Speed Post/ Approved courier/ Fax/ Email (HC Rules)
● RPAD is a good evidence of notice -- very authoritative.
● Email reaching inbox -- constructive notice -- sufficient
● Paid by the plaintiff -- later, if the plaintiff wins then it comes as a
cost of litigation.
○ Defendant outside court jurisdiction (sec.28)
■ Court can delegate court officers to physically travel. (Rarely used)
■ Speed Post/ approved couriers/ fax/ email
○ More than one defendant? -- individual summons to each defendant (R.11)
○ Suit relates to business within court jurisdiction (Rule 13)
■ Service of summons on defendants manager/agent for the business within
court jurisdiction - deemed due service
○ Suit relates to Immovable property (Rule 14)

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 ■ Service of summons to defendant’s agent in charge of immovable property
- deemed due service
○ Defendant absent from residence (Rule 15)
■ Service of summons to adult member of defendant’s family only
● Substituted service
○ Refusal to accept summons by defendant – defendant not found after reasonable
diligence – defendant avoiding – deemed duly served.
○ State of Punjab v GS Gill AIR 1997 SC 2324
○ Modes: Affixture on defendant’s residence/workplace/courthouse – Newspaper
advertisement
○ Def refuses to accept/ def not found after due reasonable diligence/ DEf avoiding
service
○ Is not mandatory -- optional (Plaintiff)
■ Affixture on Def residence/work (R.17 r/w R.18, R.19): summons copy on
conspicuous part by service officer
● Details such as place, time date to be mentioned
■ Affixture on court (r.20): summons copy on conspicuous part of
courthouse and def residence/work
■ Newspaper advertisement (R.20(1-A)): daily newspaper circulating in
locality of def last known address.
○ Defendant would have deemed duly served -- valid service
○ No acknowledgement -- Mandatory endorsement (serving officer or newspaper
page).
● Service by plaintiff: Rule 9A

Summons in special cases:

● Defendant residing outside territorial jurisdiction of court issuing summons but within
India – Rules 21, 23, 22, Section 28
● Defendant residing outside India – Rules 25, 26, 26-A, Section 29
● Defendant in jail – Rule 24
● Defendant is a civil public officer / servant of railway or local authority – Rule 27
● Defendant is soldier / sailor / airman – Rule 28
● Defendant is of a rank entitling him to letter in place of summons – Rule 30
● Duty of person who receives summons on behalf of defendant – Rule 29

WRITTEN STATEMENT - ORDER VIII

● Order VIII Rule 1
○ Filed within 30 days from date of receiving summons (can be extended for
additional 30+30 days, but not more than 90 days from date of service of
summons)
○ Extension based on IA (Interlocutory Application) - recorded reasons by court
(2002 onwards)
● Extension of additional 30 days u/s.148

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 ○ Tailored for extending time for every stage in a civil suit
○ Again IA is to be filed
○ After the extension -- file extension under s.151 -- used for last resort (residuary
for meeting ends of justice)
● So, Days → 30 + 90 + 30(s.148) + 30 or more (s.151)
● Contents of WS - Rules 2-5, R7-10
○ Denials - specific, not evasive, separate denial for separate grounds (each para
each denial)
○ If denial para missed - evidence law states that it's accepted by the defendant
(deemed admission)
○ If not expressly denied -- deemed to be admitted. Once the court agrees then no
evidence can be used to rebutted the deemed acceptance.
○ New ground of denial -- filing of additional written statement
■ Request the court
■ In case new facts have arisen which could not have been included in the
original WS with due diligence, or law has changed retrospectively.
■ Basically for full opportunity of defence (Audi alteram partem)
○ Documents relied for defence to be annexed
■ Original documents to be attached with the WS

Set Off - Rule 6

● Conditions
○ Money Suit filed by Plaintiff
■ Claimed by Defendant.
○ Defendant's claim for ascertained amount against plaintiff
■ Incase P asks for unliquidated damages - P has to justify the estimate -
Defendant can't argue that P has committed any other act against Def and
needs unliquidated damages.
■ Unliquidated damages not allowed (equitable set-off or counter claim)
■ Amount to be equal or lower than plaintiff’s claim (excess-counterclaim)
■ Amount has to be ascertained by the court
○ Defendant can make a claim of set off (fixed amount) against the Plaintiff who is
seeking unliquidated damages.
○ If Def claim is more than Pl claim -- should be legally recoverable -- not under
Rule 6
○ Defs claim legally receivable : not time barred (equitable set off)
○ Defs claim within pecuniary jurisdiction of court: Def to pay court fees on own
claim.
○ Plaintiff and Defendant should be in the same capacity for both debts. (Like Def
can't claim breach of trust against Plaintiff as a trustee)
● Difference between legal and equitable set-off:
○ ascertained sum only; unascertained sum
○ right of defendant; discretion of court
○ time barred debt not allowed; time barred may be set-off
○ Govt of United States of Travancore & Cochin v Bank of Cochin Ltd 1954

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 ● Examples:
○ X sued Y for compensation for ₹1L - Y alleged X to be liable to pay ₹90K - there
is set off
○ X sued Y for compensation of ₹1L in 2020 - Y alleged X to be liable to pay ₹90K
for breach in 2015 - Y cant include set-off as it exceeds limitation
○ X sued Y for compensation of ₹1L in 2019 - Y alleged X to be liable to give
accounts in 2018 - Whether Y can include set-off? → give accounts -- to check if
this amount is ascertained -- no claim of set-off. (Important case)
■ Laxmidas v Nanabhai 1964

COUNTERCLAIM: Rules 6A-6G (1976 Amendment Act)

● Claim made by the defendant against the plaintiff in the plaintiff’s suit. Conditions for
counterclaim:
○ not time-barred
○ not to exceed pecuniary jurisdiction
○ Gurbachan Singh v Bhag Singh AIR 1996 SC 1087
● Counter claim treated as plaint under Order VII and plaintiff reply treated as written
statement under Order VIII. (Rules 6A, 6G)
● Defendant can set up counter claims against plaintiff and co-defendant but not against
co-defendant only.
● Counterclaim heard and decided on merits even if suit was withdrawn or dismissed. (Rule
6D, 6F)
○ Laxmidas v Nanabhai AIR 1964 SC 11
● If plaintiff fails to file reply to counter claim within time given, court may pass judgment
against plaintiff or as it deems fit (Rule 6-E)

Difference between set-off and counter-claim:

● set-off is cross-claim; counter-claim is cross-suit
● set-off in money suits and ascertained sum only; counter-claim in any suit even for
unascertained sum
● set-off ground of defence; counterclaim ground of offense
● Cofex Exports Ltd v Canara Bank AIR 1997 Del 355 (DB)

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 UNIT 4: APPEARANCE, EXAMINATION AND
TRIAL

APPEARANCE AND NON APPEARANCE OF PARTIES - Order IX

● After summons - personal appearance of Plaintiff and Defendant in court.
● Mandatory -- appear after summons stage
● 4 situations:
○ Both parties present -- court will refer them to a mandatory ADR (s.89 r.w
Order X R.1A-1C).
■ Court will fix the date.
■ Mediator to send mediation process and report to the court.
○ Both parties absent
■ Rule 3 and 4
■ Rule 3 -- suit dismissed
■ Rule 4 -- remedies: fresh suit/ application to set aside dismissal
■ Res judicata??? → dismissal → no res judicata as dismissal was on
technical grounds as the case was not dismissed on merits. (no court fee
refund)
■ If Plaintiff has a bonafide cause for not being present -- Plaintiff can file a
misc. Cause to set aside the dismissal (better option) → only if P is able to
satisfy the court that there is a bonafide reason → suit can be revived.
○ Plaintiff is present only -- Defendant absent (Rule 2,4,5,6)
■ Summons not served -- Plaintiff’s default (fees/plaint copy etc)
● Rule 2: suit dismissed
● Rule 4: remedies to plaintiff -- fresh suit/ application to set aside
dismissal (sufficient cause)
■ Summons returned unserved & plaintiff not applied for fresh
summons
● Rule 5: suit is dismissed -- time limit 7 days -- extension of time on
grounds
● Remedy to plaintiff -- Rule 5 -- fresh suit
● Negligence of plaintiff
■ Summons duly served and def failed
● Rule 6A -- order for ex-parte trial
● Rule 7: remedy to defendant - apply to be heard (sufficient cause)
■ Summons not duly served w/o fault of P
● Rule 6b: second summons issued by court
■ Summons not served in time
● Rule 6c: postpone hearing of suit and inform date to defendant
○ Defendant is present only -- Plaintiff absent
■ Rule 8 -- suit dismissed or decree against def based on def’s admission of
plaint

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 ■ Rule 9 -- remedy to plaintiff -- application to set aside dismissal -- no fresh
suit (deemed res judicata)
● Decree ex parte against defendant: R.13
○ Court ordered ex-parte trial → ex-parte decree against defendant:
■ Def can file appeal
■ Summons duly served -- remedies: appeal against ex-parte decree to
appellate court / application to set aside ex-parte decree for sufficient
cause for non-appearance
■ Summons not duly served -- remedies: appeal/ application to set aside
ex-parte decree for lack of service of summons
■ Exceptions (no setting aside if)
● Decree passed against other defendants are not divisible
● Mere irregularity in service of summons, if defendant proved to
have notice of suit
● Appeal filed against ex-parte decree and disposed on merits

ORDER X – FIRST HEARING AND EXAMINATION OF PARTIES

● At first hearing, court ascertains from the parties to the suit, their admissions or denials of
allegations made by the opposite party (Rule 1)
● Oral examination of parties to ascertain elucidate matters in controversy in suit by court,
recorded in writing (Rule 3)
● Mandatory provision to direct parties for alternate dispute resolution as per Section 89 of
CPC.
● If no settlement is reached, parties referred back to court (Rules 1-A, 1-B, 1-C)

ORDER XI DISCOVERY OF FACTS AND DOCUMENTS

● Object: to allow party to get further information on facts (discovery of facts) or further
information on documents (discovery & inspection of documents) from the opposite
party.
Discovery of Facts / Interrogatories
● List of questions in writing by a party to opposite party to obtain further information on
facts of the opponent’s case with the leave of the court (Rule 1, Section 30(a)
● Importance: Answers of the opposite party to interrogatories - evidence in trial (Rule 22)
● On application before court to allow interrogatories, court to order allowing/refusing
interrogatories within 7 days (Rule 2)
● Reply: Answer in form of affidavit within 10 days of order of court (Rule 8, 9)
Interrogatories may be delivered to following parties:
● by plaintiff to defendant and vice-versa
● by plaintiff to co-plaintiff or defendant to co-defendant if issues between them
● by party to officer/member of corporation where the corporation is a party (Rule
5)
● by party to next friend/guardian where minor / lunatic is a party (Rule 23)

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Objections to Interrogatories:
● By opposite party in the affidavit that interrogatory irrelevant, scandalous, not bonafide,
unreasonable, vexatious, immaterial at the present stage, injurious to public interest,
privileged & confidential information such as those provided in Sections 122 - 129 of
Evidence Act, 1872 (Rule 1, 6)
● Meenakshi Sundaram v Radha Krishna AIR 1960 Mad 184
Power of court:
● Set aside / strike out interrogatory – unreasonable, vexatious, lengthy & vague,
unnecessary, oppressive, scandalous (Rule 7)
● Dismiss suit / strike out defence if plaintiff / defendant respectively do not comply with
order to answer interrogatory (Rule 21)
Costs:
● Costs of administering interrogatory paid by party giving it.

Discovery & Inspection of Documents:

● Party to suit can apply to court directing opposite party to disclose on oath documents in
his possession relating to the suit (Rule 12)
● Court order discovery of documents if any of the following requirements fulfilled:
○ it is necessary for fair disposal of suit or
○ it is necessary for saving costs (Rules 12)
Objections / refusal to order discovery:
● it is not necessary or
● it is not necessary at that stage of the suit or
● it is unduly oppressive to the party or
● documents are privileged.
● J.B.Patnaik v B.C. & Co Ltd AIR 1989 Ori 52; P Balan v Central Bank of India AIR
2000 Ker 24
Inspection of Documents:
● To inspect documents mentioned in pleadings (plaint/WS), party can give notice to
opposite party directly without interference of court to produce such documents for
inspection and make copies before issues are framed (Rule 15)
● To inspect documents not referred in the pleadings, party to apply to court with affidavit
on relevance of such document.
● Court can order opposite party to produce such document of the party’s inspection if any
one of the following requirements are fulfilled:
● i. it is necessary for fair disposal of suit or
● ii. it is necessary for saving costs (Rule 18(2)
● State of Orissa v Binode Mohapatra AIR 1969 SC 1249; TA Ahammed Kabeer v Azeez
AIR 2003 SC 2271
● Opposite party to reply within 10 days from notice, objecting or allowing inspection of
documents with details of time and place for inspection. (Rule 17)

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Power of court pertaining to Discovery:
● Court can order discovery of document from any party to suit suo motu at any stage of
the suit. (Rule 14)
● Dismiss suit / strike out defence if plaintiff / defendant respectively fail to comply with
order of discovery or inspection of documents.
● Postpone / reserve the application for discovery of facts/documents if court is satisfied
that it is premature and some issue in the suit should be determined first to decide on the
right to seek discovery of facts/documents. (Rule 20)
● Bagyalakshmi Ammal v. Srinivas Reddiar AIR 1960 Mad. 510

ORDER XII - ADMISSIONS

● Object: to expedite trial, save time and expenses for proof.
● Importance: Facts admitted need not be proved (Section 58 Evidence Act, 1872),
admissions are strong piece of evidence.
● Any party to suit can admit to the whole or part of the opposite party’s claim in writing.
● Kinds:
○ Admission of facts
○ Admission of documents
Procedure
● in pleadings (plaint/WS)
● oral examination by court (Order 10, Rule 1,2)
● on oath during examination (Order 18)
● on notice (Order 12)
● by agreement (compromise decree – Order 23)
Notice to admit facts
● Party to suit can send notice asking opposite party to admit specific fact mentioned in
notice - Rule 4
● Opposite party to reply admitting or objecting to such facts within 6 days from the notice.
● If opposite party fails to reply to notice or refuses to admit, liable to pay costs of proving
such fact.
● Notice and reply to notice to admit facts to be in prescribed form
(Rule 5)
Notice to admit documents
● After discovery and inspection, party can give notice asking opposite party to admit any
document mentioned in notice - Rule 2
● Admission of document means admission of facts contained in the document. • Opposite
party to reply to admitting or objecting to such documents within 7 days from the notice
● If opposite party fails to reply to notice or refuses to admit, liable to pay costs of proving
such documents
● If opposite party does not deny document in pleading or reply to notice, the document is
deemed to be admitted by the opposite party - Rule 2-A

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Power of court:
● court can suo motu ask any party to suit to admit to any document at any stage of the suit
and record whether the party admits or refuses to admit to such documents (Rule 3-A)
● court can require document deemed to be admitted under Rule 2-A to be proved in trial
● court can pronounce judgment suo motu or on application of party, based on the
admissions made by the parties, at any stage of the suit without waiting for determination
of other questions between parties. This is a discretionary power of the court and not
right of the parties - Rule 6
● Uttam Singh Duggal v Union Bank of India AIR 2000 SC 2740;
● Karam Kapahi v. Lal Chand Public Charitable Trust AIR 2010 SC 2077

ORDER XIII - PRODUCTION, IMPOUNDING AND RETURN OF

DOCUMENTS

Production of Documents:
● Parties to produce relevant documents in original at time of filing their pleadings, or
latest at the time of settlement of issues (Rule 1)
● Documents not produced in the original at the said time are not allowed to be relied upon
during trial as evidence. (Order VII and Order VIII)
● Senthil Kumar v Dhandapani AIR 2004 Mad 403
● Documents intended to be used for cross-examination purpose or to refresh memory of
witness only need not be produced in original on or before issues framed.
● Court can allow production of documents at later stage if document is genuine and
material to decide the real dispute.

Admission of documents as evidence:

● Where document is admitted as evidence, endorsement is made on the document by the
court with the following details:
○ -number of suit
○ -name of party producing the document
○ -date of production
○ -statement that the document is admitted (Rule 4)
● If document is entry in account book or public record or document of a third party, copy
of the document is marked for identification and after comparison with the original, it is
admitted (Rule 5)
● Documents admitted as evidence form part of the record of the suit (Rule 7)

Rejection of documents:
● Court can reject documents on grounds of irrelevance or inadmissibility at any stage of
the suit and record reasons for rejection (Rule 3)
● Mandakini Naik v GK Naik AIR 2004 AP 525

46
 ● When rejected, court to make endorsement on document with following
details:
○ -number of suit
○ -name of party producing the document
○ -date of production
○ -statement that the document is rejected (Rule 6)
● Documents not admitted as evidence do not form part of record of the suit and are
returned (Rule 7)

Impounding of documents:
● Court can direct any document in any suit to be impounded and kept in custody on
sufficient cause such as apprehension of forgery, manipulation or destruction of the
documents or material objects as evidence (Rule 8, 11)
● Court can suo motu or on application of party, send for records of any other suit from its
own records or other court (Rule 10)

Return of documents:
● when suit has been disposed and no appeal is allowed;
● when suit has been disposed and appeal is allowed but no appeal has been filed before
expiry of the limitation period;
● when suit is pending and party provides sufficient cause for return of document and
delivers certified copy as substitute with undertaking to produce original when required.

ORDER XIV – SETTLEMENT OF ISSUES

● Issues: material propositions of fact / law affirmed by one party and denied by other
party. Material propositions: statements that plaintiff alleges to show his right to relief
and defendant alleges to show his defence.
● Each material proposition affirmed and denied forms distinct issue. A general issue
whether plaintiff entitled to relief of declaration of title, possession and injunction is not
proper.
● Kinds
○ Issue of fact
○ Issue of law
○ Mixed issue of fact and law: issue of pecuniary jurisdiction of court to be decided
by determining market value of suit property
● When to file
○ At first hearing, court to frame and record issues after ascertaining material
propositions which are admitted by one party and denied by the other party.
● Rule 3 - Materials for framing issues
○ Allegations made on oath
○ Allegations in pleadings
○ Allegations in reply to interrogatories
○ Contents of documents

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 ● Power of courts on issues
○ Court has power to amend, add, strike out any issue at any stage of the suit (Rule
5, 6)
○ Court can frame and decide issues, on application of parties, if parties can agree
on question of fact / law and state in the form of issue (Rule 6, 7)
○ Court can name an issue as preliminary and decide it first but it has to decide all
the other issues while disposing of the suit (Rule 2).
○ Exception: if preliminary issue relates to the following, court can dispose of suit
after deciding these issues without deciding the other issues:
■ Jurisdiction of the court
■ Bar to the suit under any law
■ Manager, Bettiah Estate v. Sri Bhagwati Saran AIR 1993 All. 2

ORDER XV – DISPOSAL OF SUIT IN FIRST HEARING

● Parties are not at issue on any question of law or fact (Rule 1)
● Where there are more than one defendants and any of the defendants admits to the
plaintiff’s claim, court can pronounce judgment and dispose of the suit against such
defendant and proceed with the suit against the other defendants (Rule 2)
● Where summons was issued for final disposal of the suit under Order V Rule 5 and
plaintiff or defendant failed to produce evidence, without sufficient cause for such
failure, court may pronounce judgment at first hearing (Rule 4)
● Where summons issued for settlement of issues, after framing the issues, the court may
pronounce judgment if following conditions are fulfilled: (Rule 3)
○ a. court is satisfied that no further evidence or arguments is required to decide an
issue which is sufficient to decide the suit,
○ b. no injustice will result due to proceeding with the suit, and
○ c. parties or their pleaders are present and have no objection to such proceeding
and disposal of the suit.

ORDER XVI AND XVIII - SUMMONING AND EXAMINATION OF

WITNESSES

Summoning of Witness – Order 16

● Parties to submit list of witnesses to court within 15 days of framing of issues
● Vidhyadhar v Manikrao AIR 1999 SC 1441
● Procedure:
○ - Application of party to summon witness / suo motu by court (sec 30)
○ - Summons served on witness as per Order 5
○ - Witness fails to comply with summons – warrant for arrest or attachment of
witness property

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Examination of Witness – Order 18
● Section 153-B: oral examination, open court, public access to ensure transparency in
judiciary Exceptions: trial in camera; issue of Commission for recording witness
statement (Order 26) Plaintiff has right to begin to prove his claim, the opposite party to
state his case and produce evidence next (Rule 1, 2)
● Recording of Evidence:
○ Examination-in-chief of witness to be on affidavit – copy to opposite party. (Rule
4)
○ Evidence taken under personal superintendence of judge in writing or from
dictation or recorded manually in his presence (Rule 5)
○ Evidence can be taken by Commissioner appointed by court (Rule 4)
● Language:
○ Evidence taken in language of court or English if parties and pleaders do not
object (Rule 9) Evidence taken in language different from language of the
witness, the evidence in writing (deposition) to be interpreted to him (Rule 6)
● Power of Court:
○ Court can take down any particular question and answer or objection to it (Rule
10)
○ record remarks on conduct and behavior of witness (Rule 12)
○ recall any witness already examined at any stage and examine again (Rule 17)
○ take evidence of witness immediately before trial if sufficient cause (Rule 16)

ORDER XVII - ADJOURNMENT

● General rule: hearing of evidence to be conducted day-to-day basis
● Exceptions: time granted – sufficient cause shown – exceptional circumstances beyond
control of party 1999 Amendment Act – maximum 3 adjournments (Rule 1)
● Salem Advocate Bar Association v Union of India AIR 2005 SC 3353
● Factors considered for granting adjournment:
○ ground for seeking adjournment to be factually correct
○ ground to be sufficient
○ reasons for adjournment to be recorded by court
○ cost to be imposed on adjournment

ORDER XIX - AFFIDAVIT

● Meaning: Sworn statement in writing made under oath before authorized officer.
● Essentials:
○ declaration by person
○ contain facts within personal knowledge of deponent
○ in writing
○ addressed in first person
○ sworn before authorized officer
● Evidence on Affidavit:
○ Court can order any fact to be proved by affidavit (Rule 1)

49
 ○ Opposite party has right to cross-examine the witness whose affidavit is produced
as evidence (Rule 2) False affidavit – perjury – punishable offence under IPC

ORDER XXII - ABATEMENT OF SUIT

● Abatement: creation, assignment, devolution of interest pendente lite
● Suits gets disposed off not on merits, but due to certain other factor/events
● Case cannot be continued
● Suit is not going to be heard

Death of Party (Rule 1 to 6, 10A).

● (Rule 1) General rule: suit/appeal will not abate if right to sue survives after death of
party
● Exceptions:
○ personal actions dies with the deceased such as damages for assault,
○ malicious prosecution,
○ defamation,
○ dissolution of marriage,
○ specific performance of contract involving special skills.
● If right to sue not to survive on death of party - suit abates
○ Pre-emption suit abates on plaintiff’s death
○ Injunction suit abates on defendant’s death
○ Melapurath Sankunnu vs. Gopalakutty Nair AIR 1986
● If right to sue survives on death - suit continues against LR of deceased party (P/D) - R1
○ Girijanandini vs. Bijendra Narain AIR 1967
○ Defendant dies:
■ P’s job to identify the LR, file IA
■ If sole defendant dies - right against def continues - LR of deceased def to
be added as party by plaintiff within 90 days from death - if no application
by plaintiff in time, suit abates (R1).
■ If several defendants - one dies, right against def continues - LR of
deceased def to be added by P in 90 days - if not application in time, suit
against that LR abates, continues against other defs (R2).
○ Plaintiff dies:
■ Sole P dies - right to sue continues - suit continued by LR by application
to court within 90 days from death - if no application in time by LR, suit
abates.
■ Several Ps, one dies - rt. To sue continues - suit continued by other Ps and
LR, if LR applies in 90 days - if no application in time by LR then suit
abates
● If no LRs:
○ No LR of Party dead - on application of opposite party, court appoints reciever to
appoint receiver to represent estate of deceased
● Dispute about LR- court to decide
● Duty of pleader/advocate (R.10A) - inform court about death of rep party

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● Effect of abatement (R9) - abated by failure of P (application to bring LR on record in
time) - fresh suit barred - appln to set aside abatement
○ S.11 not applicable here, but its barred under O.22_R.9
● Death of plaintiff:
● a. Sole plaintiff dies:
○ If right to sue not survive, suit/appeal abates.
○ If right to survives, suit/appeal continues with LR of deceased
plaintiff. (Rule 3(1) LR of plaintiff to apply to court within 90 days
from death. If not, suit/appeal abates.
● b. Several plaintiffs, one of them dies:
○ If right to sue does not survive at all, suit/appeal abates.
○ If right to sue survives only to LR of deceased plaintiff and not to other
plaintiffs, suit/appeal continues with LR on his application within 90
days. If not, suit/appeal abates. Court award costs to defendant from
deceased plaintiff’s estate. (Rule 3(2) If right to sue survives to other
plaintiffs, suit/appeal continues without any application. (Rule 2)
○ Gajanand v Sadarmal AIR 1961 Raj 223
● Death of Defendant:
○ a. Sole defendant dies:
■ Right to sue does not survive – suit/appeal abates.
■ Right to sue survives – suit/appeal continued against LR of
defendant. (Rule 4(1) Plaintiff to apply to court within 90 days
from death. If not, suit abates.
○ b. Several defendants, one of them dies:
■ Right to sue does not survive at all – suit abates.
■ Right to sue survives only to LR of deceased defendant and not to other
defendants, suit continues against LR on plaintiff’s application within 90
days. If not, suit abates. Right to sue survives to other defendants – suit
continues without application. (Rule 2) Determination of LR: Question of
fact – decided by court (Rule 5)
● No LR:
● Court appoint officer of court to represent estate of deceased party on application
of other party.
● Representative of estate to be willing and not have any adverse interest in the
estate. (Rule 4-A)
● Duty of Pleader:
○ Death of party – duty of pleader – inform court of death of party representing –
deemed contract between pleader and his party (Rule 10-A)
○ Setting aside of abatement:
○ Plaintiff ignorant of defendant’s death – not applied to bring LR on record within
90 days – suit abated – apply for condoning delay and setting aside abatement –
sufficient cause – construed liberally. (Rule 4(5)
○ State of Haryana v. Chandra Mani AIR 1996 SC 1623.
○ Order refusing to set aside abatement – appealable

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Insolvency of Party (Rule 8):
● Insolvency of P - suit not abated - Receiver(or Liquidator) continues suit or decline to
continue suit - def application - court dismisses suit - costs to def from P’s estate.
● Insolvency of D - court stay suit till receiver appointed and continue as LR of Def.
● If P wins then P is Creditor
● Insolvency of plaintiff:
○ Receiver agrees to continue suit – no abatement.
○ Receiver declines – defendant apply for dismissal of suit – court dismiss suit,
award costs to defendant from plaintiff’s estate (Rule 8)
● Insolvency of defendant:
○ No abatement – stay on suit/appeal - suit continues against Receiver / Assignee
(Rule 10)

Effect of Abatement
● No fresh suit/appeal on the same cause of action allowed.
● Remedy – application to set aside abatement

Assignment of interest (RULE 10)

● Assignment of interest pendente lite - by will or operation of law - leave of court - suit
continued against persons claiming such interest

ORDER XXIII - WITHDRAWAL AND COMPROMISE OF SUIT

WITHDRAWAL OF SUIT
● Kinds of withdrawal:
○ a. absolute (without leave of court) – fresh suit not allowed thereafter (rule 1(1)
○ b. qualified (with leave of court) – fresh suit can be instituted (rule 2)
● Absolute withdrawal not allowed:
○ • Suit by minor / unsound mind plaintiff represented through next friend/guardian
○ • Representative suit
○ • One of several plaintiffs
● Qualified withdrawal – court allow withdrawal on certain grounds:
○ a. Formal defect – misjoinder of parties or cause of action; material document not
registered
○ b. Sufficient grounds – premature suit
● Bhoopathy v Kokila AIR 2000 SC 2132
○ Order allowing or refusing permission for qualified withdrawal – non-appealable,
but revision allowed.

COMPROMISE OF SUIT
● Court can record agreement / compromise and pass compromise decree if: (Rule 3)
○ i. Agreement / compromise

52
 ○ ii. In writing signed by parties
○ iii. Lawful
○ iv. Recorded by court
○ v. Compromise decree passed by court
● Banwari Lal v Chando Devi AIR 1993 SC 1139
● Compromise not allowed without leave of court:
○ Suit by/against minor through next friend/guardian (Order 32, rule 6)
○ Representative suit (Order 23 Rule 3B)
● Compromise decree – non-appealable; fresh suit not allowed (estoppel)
● Difference between Withdrawal and Compromise:
○ i. By plaintiff only – By both parties
○ ii. With or without leave of court – With leave of court to be recorded as decree
iii. Fresh suit allowed if qualified – No fresh suit allowed

ORDER XXVI - ISSUE OF COMMISSIONS

(NOT IMPORTANT I GUESS)

Section 75 of CPC: functions/purposes of Commissions

● i. To examine witnesses
○ Exception to general rule (evidence to be taken in open court)
○ Section 76: commission to examine witness issued to a court subordinate to High
Court When allowed: Order 26, Rules 4, 5, 1, 3, 7, 8
● ii. To make local investigation – Order 26, Rules 9, 10
● iii. To adjust accounts – Order 26, Rules 11, 12
● iv. To make partition – Rules 13, 14
● v. To hold investigations of scientific/technical nature – Rule 10-A
● vi. To conduct sale of movable property – Rule 10-C
● vii. To perform ministerial act – Rule 10-B
○ Ministerial acts relate to accounting, calculations etc which may unnecessarily
take up time of the court.

Powers of Commissioner (Rules 16, 17, 18)

● i. To summon parties, witnesses and examine them
● ii. To call for and examine documents
● iii. To enter into property at reasonable time for investigation
● iv. To proceed ex-parte in absence of party

MISCELLANEOUS
● Report of Commissioner:
○ Considered evidence, not rejected by court without sufficient grounds
● Expenses of Commission (Rule 15):

53
 ○ Paid by party applying for issue of commission
● Commission for Foreign Tribunals (Rules 19 – 22)
○ Foreign court to obtain evidence from witness in India: party approach High
Court within whose jurisdiction witness residing for issue of commission to
examine such witness.

INTERLOCUTORY APPLICATIONS
● Either party
● Seeking temporary relief before final order
● Types:
○ Commission
○ Arrest before judgement
○ Attachment before judgement
○ Appointment of Recieved
○ Temporary Injunction
○ Lesser regulation → And many more such as Amendment of plaint, Adjournment
(Order 29)

ORDER XXXVIII - ATTACHMENT BEFORE JUDGEMENT

● Exception to general rule
● Raman Tech and Process Engineering Co v. Solanki Traders (2008) 2 SCC 302
● Grounds for application for attachment before judgment (Rule 5):
○ i. defendant about to dispose property or
○ ii. defendant about to remove property from court jurisdiction, with intent to
obstruct/delay execution of decree which may be passed against him.
● Order of attachment before judgment – appeal and revision allowed Section 95:
compensation for wrongful attachment or attachment on insufficient grounds
● SBI v M.P Iron & Steel Works Pvt Ltd AIR 1998 MP 93

Procedure:
● Plaintiff apply for attachment, specifying the property to be attached
● If court satisfied, showcause notice issued to defendant to show why he should not be
asked to furnish security.
● If defendant fails to show cause or furnish security, order for attachment of property
(Rule 6)
● Onkar Mal Mittal v State Bank of Patiala AIR 1992 P&H 104
● SBI v MP Iron & Steel Words Pvt Ltd 1998

Modes of attachment (Rule 7):

● same modes as in attachment in execution of decree – seizure, appointing custodian,
prohibition order, garnishee order
● Order to employer to withhold salary

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Property exemption from attachment (Rule 12, section 60):
● Agricultural produce in possession of agriculturist
● Necessary wearing apparel, cooking vessels, beds bedding of family members
● Personal ornaments of religious usage of women
● Artisan’s tools; implements of husbandry
● Cattle, seed grain of agriculturist
● Stipends, gratuities of pensioners of government service;
● Wages of labourers, domestic servants
● One-third of salary;
● Pay and allowances of armed forces personnel

Re-attachment (Rule 11):

● (Not important can be skipped)
● Property attached before judgment, decree passed in favour of plaintiff – not necessary to
apply for fresh attachment of property in execution proceedings

Withdrawal/removal of attachment (Rule 9):

● a. When suit disposed
● b. If defendant furnishes security
● c. On request of plaintiff
● d. If decree satisfied
● e. If decree set aside or reversed on appeal.

ORDER XXXVIII - ARREST BEFORE JUDGEMENT

● General rule: party arrested after decree passed, executed, failed to comply
● Exception: special circumstances, creditor apply for arrest of debtor before decree and
judgment Grounds of application for arrest before judgment (Rule 1):
○ Defendant absconded or left court jurisdiction, with intent to delay court
proceedings or obstruct/delay execution of decree
○ Defendant about to abscond or leave court jurisdiction, with intent to delay court
proceedings or obstruct/delay execution of decree
○ Defendant disposed / removed his property from court jurisdiction, with intent to
delay court proceedings or obstruct/delay execution of decree
○ Defendant about to leave India under circumstances to obstruct/delay plaintiff in
execution of decree
● Order of arrest before judgment – appeal and revision allowed (Order 43 Rule 1) Section
95: wrongful arrest or arrest on insufficient grounds
● Chelsea Mills v Chorus Girls Inc AIR 1991 Del 129
● Nidhi Dhawan v Sunil Dhawan 1996 AIHC 4973 (Del)
● General Rule → Arrest of defendant takes place after final decree as a mode of
execution of decree
○ To get the defendant to obey the decision of the court
○ Not harsh as criminal proceedings -- civil prisons

55
 ○ Arrest is for a limited period of time
● Exception: Arrest of defendant takes place during pendency of suit (before decree is
passed)
○ Special circumstances
○ Grounds: Rule 1 and 2
■ Defendant absconds/leaves local jurisdiction of court with intent to
delay/avoid/obstruct proceedings.
■ Defendant about to leave local jurisdiction of court with intent to
delay/avoid/obstruct proceedings
■ Defendant disposes of property outside jurisdiction of court with
intent to delay/avoid/obstruct proceedings
■ has to be proven based on certain facts -- provided that intention to delay
and obstruct the proceedings
■ Intention is crucial.
■ Def can file objections to IA (Audi Alteram Partem).
■ For this → then the court will keep a mini trial to establish the intention.
■ Movement of Def should not be restricted -- correlated to FR of movement
even before the final decision.
■ Defendant about to leave India and reasonable probability that
execution of decree be obstructed
● Eg: Vijay Mallya - similar proceeding to DRT Rules
● Here intention is irrelevant as leaving India is very serious
● But we have to prove reasonable probability → easier to prove

Procedure:
● Plaintiff apply for arrest of defendant, establish that suit bona fide; and possibility of real
damage if defendant removes self / property from court jurisdiction.
● Court issue showcause notice to defendant to show why he should not be asked to furnish
security for his appearance.
● If court not satisfied by defendant, court order defendant to furnish security. Security for
appearance (Rule 2): money or surety (rule 3)
● On failure to furnish security, defendant arrested and detained in civil prison till decree
executed / suit disposed (Rule 4)
● Plaintiff to deposit subsistence allowance for detention of defendant in prison (section
57)
● No arrest in following cases:
○ woman in suit for payment of money (section 56)
○ suit for immovable property under section 16(a) – 16(d)
○ member of legislature bodies/committee during continuance of meeting
○ judicial officer on the way to, from or while presiding in court (section 135)
● Court to issue warrant - bring defendant to court and issue show cause notice on why
defendant not to be arrested.
○ Warrant amount is also fixed
○ If defendant pays amount to warrant officer - then can leave - or dispose property
- no arrest

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 ○ Warrant amt is substantial wrt value of suit
● If defendant reply to show cause notice sufficient → no arrest
● If defendant reply to show cause notice insufficient/ no reply → court require defendant
to furnish security (money or surety).
● If defendant furnishes security - no arrest
● If defendant fails to furnish - arrested
● Courts order of arrest - appealable

Release from detention:

● Period of Detention - Rule 4:
○ If value of suit is less than rs.50 -- max 6 weeks
○ Other cases , max 6 months
● when suit disposed
● if security furnished or warrant amount paid
● on serious illness
● failure to pay subsistence allowance
● on request of plaintiff
Miscellaneous
● Subsistence allowance - Sec.57
○ Applicant (plaintiff) to deposit subsistence allowance - amount specified by court
- if not paid, no arrest
○ This amount can be reclaimed as costs
● Wrongful arrest - Sec.95
○ Arrest on insufficient grounds - cause of action to defendant agsint plaintiff -
compensation of rs.50k max
○ Def can also sue state or Plaintiff
● Who are not arrested -
○ Defendant is woman in money suits - sec 56
○ Minor
○ Suit in immovable property dispute
○ Defendant is member of legislature or committee (sec.135A)
○ If Def is judicial officer (s.135)
○ Cases -
■ Chelsea Mills vs. Chorus Girl Inc AIR 1991 Del 129.
■ Nidhi Dhawan vs. Sunil Dhawan 1996 AllHC 4973 (Del).

ORDER XXXIX - TEMPORARY INJUNCTION

● Meaning: judicial process wherein party required to do or refrain from doing particular
act.
● Difference between injunction and stay:
○ Stay: suspension of judicial proceedings
○ Injunction: restraining or directing a person from/to perform an action.
● Vacating Injunction: Setting aside the order of injunction - Rule 4
● Temporary mandatory injunction:

57
 ● Exceptional circumstances – immediate injury – not compensated with money – only to
restore status quo
● Kishore Kumar Khaitan v Praveen Kumar Singh (2006) 3 SCC 312
● Who can apply for temporary injunction:
○ P or D - Rule 1a
○ Ex: Def in declaratory suits, eviction, etc
● Against whom can temporary injunction be obtained:
○ Party to suit only - not third person/stranger to suit
○ Not against court
Kinds:
● Mandatory and prohibitory
○ Mandatory - order of judicial authority to do a particular act
○ Prohibitory - order not to do a particular act
● Perpetual (specific relief act) & temporary/interim (CPC Order 39)
○ Perpetual mandatory example - maintenance
○ Perpetual prohibitory example -
○ Temporary mandatory - pay interim amount as maintenance till di
● Ad interim injunction: granted till application for temporary injunction heard and decided
○ Till IA is heard and decided
○ The day IA is decided, the ad interim injunction will come to an end
Grounds: (Rule 1)
● Property in dispute – danger of being wasted/damaged/alienated/wrongfully sold in
execution of another decree
● Defendant threatens/intends to remove/dispose property to defraud creditors
● Defendant threatens to dispossess plaintiff or cause injury to plaintiff
● Defendant about to commit breach of contract/other injury (Rule 2)
● it is required in interest of justice in court opinion
3 principles / triple test:
● Prima facie case
○ Does not have to prove the entire case
○ Court to be satisfied - bona fide legal dispute - not to prove entire case
○ Kashinath Samstahn vs. Shrimad Sudhindra tirthaswamy
● Irreparable injury
○ If injury not granted - applicant suffers from irreparable loss or injury - cannot be
adequately compensated in money
○ American cyanamid co. vs. ethicon ltd 1975 - principle
○ Best sellers retail vs. aditya birla 2012 SC
● iii. Balance of convenience
○ If injunction not granted - applicant put to greater inconvenience - compared to
inconvenience of opposite party if injunction granted
○ Gujarat Bottling Co. Ltd. vs Coca Cola AIR 1995

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Procedure
● Written IA by plaintiff/defendant (applicant)
● Court to issue mandatory notice to opposite party - Rule 3
● Exception: ex parte injunction
○ If object of injunction defeated by delay - ex parte injunction granted till opposite
party rebuts applicant’s IA for injunction - court to decide IA for temporary
injunction in 30 days - Rule 3A
● Applicant to prove 3 pillar test
● Court to record reasons for granting TI
● Order of TI is appellable
● Breach of temporary injunction - arrest/attachment of property/contempt of court
General rules:
● - Court discretion not right
● - Notice to opposite party – ex-parte order when granted (Rule 3, 3A)
● - Reasons to be recorded by court
● - Imposition of conditions with injunction (Rule 2)

Duration:
● - Pendency of suit
● - Limited period prescribed by court
● - Till higher court approached for appeal
Non-compliance of injunction: (Rule 2-A)
● -arrest/attachment of property
● -contempt of court proceedings

ORDER XXXIX - INTERLOCUTORY ORDERS

● Temporary relief not constituting final resolution of dispute
● IA - application seeking temporary relief
● IO - temporary relief by court - need not operate during the entire proceeding of the suit
○ Examples: impleading person as party, allowing amendment of plaint/WS,
allowing interrogatories, staying of suit under sec.10, extending the time for filing
WS, allowing filing of counterclaim etc
● Interim Order - temporary relief by court which operates during pendency of suit till final
disposal
○ Examples: temporary injunction till final disposal of suit, attachment of
defendant’s property before judgement, appointment of receiver of dispute
property etc.

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ORDER XL - APPOINTMENT OF RECEIVER
● One who receives money / property of another and gives accounts – independent &
impartial
● Object: to preserve suit property/funds and rights of parties during litigation.
● Ordered in extreme cases – court discretion.
● Who can apply: party to suit / court suo motu
● Mahendra Patel v Ram Narayan AIR 2000 SC 3569

Principles to be followed for appointment:

● Discretionary power – harsh remedy – extreme cases
● Protective relief – necessary to prevent harm
● Prima facie case of plaintiff
● Bona fide, clean hands of applicant

Powers of Receiver (Rule 1)

● As conferred by court appointing for specific functions. For instance:
○ power to institute / defend suits
○ power to manage, preserve, repair, improve property
○ power to collect rent, apply for profit, dispose of property
○ power to execute documents
○ S. B. Industries v. United Bank of India AIR 1978 All. 179

Procedure:
● Written IA by plaintiff/defendant
● Object to preserve disputed property in hands of opposite party & safeguard interest of
parties
● Rule 2 - Remuneration of receiver to be paid by applicant seeking appointment of
receiver.

Duties & Liabilities of Receiver (Rule 3, 4)

● Exercise same standard of care as prudent person for own property
● Furnish security to court, as determined by court
● Submit accounts related to property to court
● Discharge duties personally – no delegation/assignment
● Pay any amount ordered by court – property damaged during custody by negligence
● SB Industries v United Bank of India AIR 1978 All 179;
● Maharaj Jagat Singh v Lt Col Sawai Bhawani Singh AIR 1993 SC 1721

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POST TRIAL

SECTION 34 - INTEREST
● In suit for payment of money, arrears of rent, mesne profits, damages only
● Types of Interest:
○ i. Interest for period till institution of suit: as per agreement between parties /
custom / statute.
○ ii. Interest pendent lite: from date of suit till date of decree: as per court discretion
– generally contractual rate of interest except if unequitable rate
○ iii. Interest from date of decree till date of payment: 1976 Amendment Act – can
be more than 6% per annum, not exceeding contractual rate of interest, if any –
guided by rate of interest of nationalized banks, if no contractual rate of interest

SECTION 35 - COSTS
● General rule: costs to follow events - Section 35
● Kinds:
○ i. General Costs - Section 35
■ Object: secure expenses incurred in litigation, not as penalty to party
losing the suit Successful party entitled and opposite party to pay.
■ Exceptions if successful party guilty of misconduct, not entitled, court
record reasons.
■ Col. A. S. Iyer v. V. Balasubramanyam (1980) 1 SCC 634
○ ii. Compensatory Costs (Section 35-A)
■ Object: compensation to injured party - Maximum of Rs. 3,000/-
■ Conditions:
■ a. False / vexatious claim or defence knowingly raised
■ b. Opposite party raised objection to such claim / defence
■ c. Such claim / defence withdrawn or dismissed by court
■ Appeal allowed against order to pay compensatory costs, no appeal
against order refusing compensatory costs.
○ iii. Costs for causing delay (Section 35-B)
■ Object: deterrent: penalty on party, check on delaying tactics of litigating
parties – irrespective of final decision in suit
■ Ashok Kumar v Ram Kumar (2009) 2 SCC 656
○ iv. Miscellaneous Costs (Order 20-A)
■ Certain specific expenses such as giving notice to opposite party,
inspection of records, obtaining certified copies, producing witnesses,
typing charges etc.
● Security for Costs: Order 25
○ Court can order plaintiff to furnish security for payment of costs incurred or likely
to be incurred by defendant in following cases:
■ a. plaintiff going/residing outside India;
■ b. plaintiff does not have sufficient immovable property in India;
● Failure to furnish security - suit dismissed.

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 ● Mere absence of immovable property in India is not a ground for demanding security for
costs.

JUDGEMENT
● Meaning: Statement of the grounds/reasons for decree or order (section 2(9)
● Importance: Section 33
● Order 20 Rule 1-5: Content, place, time, mode of judgment
● Judgment to contain:
○ signature of judge;
○ date of pronouncement;
○ brief statement of facts and issues;
○ findings/decision of court on each issue
● Judgment to be pronounced in open court – maximum 60 days from conclusion of
hearing
● If judgment in written form – only points of judgment to be read in open court
DECREE
● Meaning: section 2(2):
○ • formal expression & written

○ • adjudication

○ • determination of rights of parties

○ • matters in controversy in suit

○ • conclusive and final

● Content of decree Order 20 rules 6-20:
○ • number of suit; names description of parties

○ • specific relief granted

○ • costs to be paid

○ • date of decree and pronouncement of judgment

○ • signature of judge
● Kinds of Decrees:
○ i. Preliminary decree – Order 20 rule 13, 15, 16, 18
■ Phoolchand v Gopal Lal AIR 1967 SC 1470;
■ Renu Devi v Mahendra Singh AIR 2003 SC 1608
○ ii. Final decree
○ iii. Compromise decree – Order 23 rule 3
○ iv. Deemed decree – rejection of plaint; restitution under Section 144

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ORDER
● Section 2(14) - Formal expression of any decision of civil court which is not a decree.
● Difference between Decree and Order:
○ i. section 2(2) - section 2(14)
○ ii. conclusive determination of substantive rights of parties – temporary
determination of rights of parties
○ iii. preliminary or final - final only
○ iv. appealable unless prohibited – non-appealable unless permitted
○ v. Second appeal in certain cases - No second appeal

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 UNIT 6: SPECIAL SUITS

SUIT AGAINST GOVERNMENT - Ss79-82 r/w O-XXVII

● Cause Title -- Plaint filed under s.26 r/w s.79 and Order 27 and Order 7 Rule (1)
● Against Govt itself or public officer (w.r.t act done in official capacity)
● Sec.79: Suit Title - ABC vs (Name of Govt Officer) and/or Govt Name (such as UoI
or SAIL or Gov of Karnataka)

Notice to Government - Sec.80

● Mandatory 2 months notice to govt before filing the suit
● State of Punjab v M/s. Geeta Iron and Brass Works Ltd 1978
○ Object - to give sufficient time, opportunity to the Govt to resolve dispute with
Plaintiff before litigation
● Contents of Notice:
○ Name, description, address of parties
○ Cause of action
○ Relief claimed
● Defects in content of notice
○ Not a ground for dismissal
○ Ghanshyam Das v Dominion of India 1984
■ Contract between P and State was breached by the State. P sent notice but
died before filing the suit. P’s legal representative filed the suit 2 months
after the notice and the notice was found to contain technical and
incidental errors. The suit was not dismissed.
● Importance of notice:
○ Suit without notice or notice has not been given 2 months prior will result in
rejection of plaint under Order VII Rule 11
○ Such a rejection of plaint would be on technical grounds and the decision of the
court would not amount to res judicata - Bihari Choudhary v State of Bihar
1984
● Exception to 2 months prior notice
○ Urgent relief with leave of court -- have to tell the court as to what might
happen if Plaintiff waits for the 2 month during the notice period
■ Harish Chandra Pvt Ltd v Corporation Bank - Suit for perpetual
injunction restraining bank from encashing Bank Guarantee -- Plaintiff
applied for suit without notice -- urgent matter as the bank would end up
encashing the guarantee within 2 months of notice and the suit would then
become frustrated (pointless)
○ Waiver by Govt -- express/implied i.e. no objection raised on lack of mandatory
notice

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Suit Against Public Officer - Sec.81
● For acts purporting to be done in course of employment even if done with malafide for
personal gain
● Mandatory notice of 2 months before filing suit
● Coal Mines PF Commissioner v Ramesh Chander Jha 1990
○ Suit filed against officer who was temporarily placed with the PF Board
● St of Maharashtra v Chander Kant 1997

Miscellaneous
● Exemption from arrest Section 81
○ Public officer not arrested in trial or execution proceedings
○ Public officer exempt from personal appearance in court if public service would
be affected by means of absence
● Execution Procedure Section 82
○ No execution against government or public officer till 3 months from date of
decree
○ Execution application to be filed after 3 months from date of decree

Limitation Period
● Notice period of 2 months is excluded
● Example: X sent mandatory s.80 notice to Indian Railways on 10-04-2019. Limitation
period for cause of action expires on 25-04-2019. Suit is fuled on 15-06-2019. The suit is
not barred by limitation as 2 months of notice period is to be added
○ Sec.80 CPC r/w s.12 Limitation Act

SUIT BY/AGAINST FOREIGN STATE/RULERS/AMBASSADORS --

Ss84-87A

Suit by foreign ruler/State - Sec.84

● enforcement of private rights of Ruler/Ambassador (not political/territorial rights)–Sec 84
● Against Indian entities/persons
● For rights vested pertaining to official capacity
○ No civil case wrt political or territorial rights
■ These are decided by SC or special tribunals
● Indian Govt must cooperate to ensure cordial relations
● Sec.85: Person appointed/nominated by the CG to prosecute/defend on behalf of
State/Ruler on request made
● Ali Akbar v UAR AIR 1966 SC 230

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Suit against foreign ruler/ambassadors: Sec.86
● Consent of central government - Sec.86
○ To ensure no frivolous or vexatious cases are filed (to prevent diplomatic
problems)
● Central government grant consent on following conditions:
○ Foreign state filed suit against person wanting to file suit or
○ Foreign state trades within court’s local jurisdiction or
○ Foreign state is in possession of immovable property within court’s local
jurisdiction and suit to be filed in respect of such property or
○ Foreign state waived privilege expressly/impliedly of protection of litigation from
India
● Suit against foreign State/ruler without prior consent of CG - plaint is rejected under
Order VII Rule 11 and the plaintiff is not able to file a fresh suit without permission
○ Rejection of plaint is not res judicata
○ Fresh suit will be allowed only after consent from the CG
○ VDS Rostok, Dept of Germany Democratic Republic v N.C. Jutemills Co. Ltd
AIR 1994 SC 516
■ NC Jutemills Co Ltd - entered into commercial transaction with VDS
(state owned company) - legal dispute wrt breach of commercial - filed
suit without prior permission of CG and was rejected - fresh suit was
allowed to be filed after consent of CG
● Central Govt may reject or refuse to consent to sue
○ If refusal - reasons must be notified to application
○ Shanti Prasad Agarwal v Union of India AIR 1991 SC 814
■ USSR Consulate has leased property from appellant - refused to evict at
the end of lease period - appellant applied for govt consent to sue USSR
Consulate - refusal was reasoned on ‘political grounds’-- appeal filed wrt
govt reason and SC held that political grounds are not sufficient
reason to not grant consent
● Sec.86: No arrest in execution of decree against foreign state ruler/ambassador
○ Ruler, Ambassador, High Commissioner of Commonwealth Nations, staff
members
○ No arrest before the judgement or during execution proceedings
● Sec.86: Execution
○ After decree obtained against foreign state/ruler/ect - consent of CG before filing
execution petition
● Limitation: Period to obtain consent of CG excluded

SUIT BY/AGAINST MINOR OR LUNATICS - Order XXXII

Suit by minor/person of unsound mind - Rule 1, 2, 2A

● through guardian/next friend – if not, plaint removed from court record – guardian to
furnish security to discourage vexatious litigation
● Instituted in own name (cause title)

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 ● If not through a guardian, plaint rejected

Suit against minor/person of unsound mind - Rule 3

● To be instituted against the name of minor/unsound person
● Through guardian (natural/legal/ad litem/ those appointed by court for litigation only)
● Ad litem guardian Order XXXII Rule 4 - An adult of sound mind and has no adverse
interest to minor/person of unsound mind

Powers and duties of guardian - Rule 6, 7

● Can receive property/money on behalf of minor/unsound mind person with leave of court
● Can enter into compromise on behalf of minor/unsound mind person with leave of court
○ Compromise by guardian without leave would result in it being voidable at the
instance of minor/unsound mind person
● To furnish security to protect property of minor/unsound mind person from waste, as
ordered by court
○ Generally not applicable to HUF, manager, parent
○ Court dispense security if guardian is manager of Hindu undivided family and
decree is for property/business of the family or guardian is parent of the minor.

Retirement, removal, death of guardian - Rule 8-11

● Choose to retire after informing the court - sufficient opportunity for fit substitution is
looked for by the court
● Removal on grounds such as
○ Adverse interest
○ Related to opposite party as it causes conflict of interest
○ When not discharging duties
○ Leaves India pendente lite
● On death, the proceeding is stayed by the court till substitute is appointed

Decree against minor/person of unsound mind

● Suit by minor without guardian / next friend – decree for / against minor - not null
○ Keshav Das Tulshan v Jagadish Prasad Tulshan AIR 1973 Cal. 83
● Suit against minor without guardian / next friend – decree against minor – null & void
○ Ram Chandra v Man Singh AIR 1968 SC 954
● With guardian but is adverse to minor/person of unsound mind, the decree can be set
aside on minor attaining majority or unsound mind person gains sanity

Minor attaining majority or person of unsound mind attaining sanity - Rule

12, 13, 14
● Can continue suit in own name and seek discharge of guardian
● Can abandon suit or apply for dismissal

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 ● Can apply to set aside decree passed in suit during minority/insanity on ground of
fraud/collusion by guardian in suit
● apply for dismissal – ground – unreasonable/improper – no costs
● if co-plaintiff, apply to strike out name – court dismiss if not necessary party – court
make minor defendant if necessary party
○ Asharfilal v Koili AIR 1995 SC 1440

SUIT BY INDIGENT / SUIT IN FORMA PAUPERIS - ORDER XXXIII,

XLIV

Meaning of Indigent - Order XXXIII Rule 1

● Person who cannot afford to pay court fees or
● Person who does not have property worth Rs.1000 (when court fees not prescribed)
● Includes juristic person as well (eg: Co. Trust)
● Union Bank of India v Khader International Construction AIR 2001 SC 2277

Procedure to sue in forma pauperis

● Application before plaint: permission of court to sue in forma pauperis
○ Rule 2 - Content of application:
■ Particulars of plaintiff
■ schedule of all movable and immovable properties of plaintiff with
estimated value
■ signatures and verification of plaintiff
● court issue notice to opposite party & government pleader – Rule 6, 7
● Court to consider application: investigate into finances of plaintiff (Rule 1A)
○ If court is satisfied, notice is issued to the defendant and govt pleader for
objections (Rule 9A and 8)
■ Court fees payment by plaintiff is waived
■ Advocate is assigned by the court to the plaintiff
○ If Court is not satisfied then the application is rejected and plaintiff to file
regular suit (Rule 5, 15A)
■ If application is rejected - plaintiff to pay court fees
■ Grounds for rejection
● Application not in prescribed manner
● Applicant not indigent
● Application fraudulently disposed property 2 months before
applying
● Cause of action not disclosed
● Suit barred by law
● Agreement where 3rd party obtains interest in subject matter of
suit (champerty)
● Agreement by 3rd party to finance litigation (maintenance)
● Rule 9: Court permission to sue as indigent - revoked pendente lite if:

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 ○ Vexatious or improper conduct in suit
○ Plaintiff’s means increase & not continue as indigent - ML Sethi v RP Kapur ‘72
○ agreement with third party transferring interest in subject-matter of suit -
Ebrahim Pathan v Mohiddin Khan ‘40
● Qualified withdrawal of suit by indigent plaintiff – leave to sue as indigent not granted
for subsequent suit
○ Ramchandran Pillai v Kerala Water Authority AIR 2006 Ker. 215

Miscellaneous
● Recovery of court-fees (Rules 10, 11, 11-A, 14)
○ If indigent person succeeds – State recover court fees, costs as first charge on
subject matter of suit from judgement-debtor
○ If indigent person fails – State recover court fees, costs from judgement-debtor
(indigent plaintiff)
○ If suit abates – State recover court fee from estate of deceased plaintiff -
Muthukumaran v State of TN AIR 1993 Mad. 272
● Rule 11A: Abatement of Indigent
○ Death of indigent plaintiff pendente lite
○ State govt to recover fees from estate from deceased plaintiff
● Withdrawal of suit: Plaintiff to pay court-fees before withdrawal
● Rule 11: Dismissal of suit
○ Suit is dismissed on merits or on technical defects of plaintiff - SG to recover
court fees from plaintiff
○ Muthukumar v State of TN 1993
● Rule 10: Suit decreed to Plaintiff
○ Indigent plaintiff succeeds in suit
○ State govt to recover from judgement debtor
● Order XLIV - procedure to sue in forma pauperis in appeal
○ Apply to appeal as indigent person – same procedure as Order 33
○ If person filed suit as indigent person – appeal as indigent person – affidavit to
continue as indigent person – no fresh inquiry required.

SUIT BY/AGAINST PARTNERSHIP FIRM - ORDER XXX

● General rule – one of two or more joint promises cannot sue alone – sec 45 Contract Act
● Exception – partner (joint promisees) can sue alone in name of partnership firm – rule 1
● Suit against partnership firm: rule 1 - 3
○ against any one/more partner in name of partnership firm - Mandalsa v Ram
Narain AIR 1965 SC 1718
○ require disclosure of details of all partners at time of cause of action -
Purushottam & Co. v. Manilal AIR 1961 SC 325
○ • summons to place of business of firm or one/more partners
○ • appearance of parties (Rule 6,7,8)
○ Ganesh Trading Co. v. Moji Ram AIR 1978 SC 484
○ Gajendra Narain Singh v Johrimal Prahlad AIR 1964 SC 581

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 ● Death of partner pendent lite: (Rule 4)
○ Suit continue with other partners – LR not brought on record
○ Kasturi Bai v Amlok Chand 2001 AIHC 4937 (MP)
○ Sohan lal v Amin Chand AIR 1973 SC 2572
● Execution of decree against partnership firm:
○ partnership property attached/sold – if decree against firm or all partners, not
against any one/more partners
○ Topanmal Chotamal v M/s. Gangaram AIR 1960 SC 388

INTERPLEADER SUIT - SECTION 88 ORDER XXXV

● Litigation between defendants rather than between plaintiff and defendant – settle issue
concerning third party
● Conditions: (Section 88)
○ Money/property in dispute;
○ Two or more persons claiming property adversely against each other;
○ Property is in possession of plaintiff - P is accepting their liability to pay and
deliver the property BUT the Question is dispute is wrt who the owner is
○ Person from whom money/property claimed – not disputing his payment or
claiming interest – ready to pay/deliver;
○ No suit pending between rival claimants regarding disputed claims.
○ No collusion between the plaintiff and any of the defendants.
■ National Insurance Co. Ltd v. Dhirendra Nath AIR 1938 Cal 287
● D borrowed from NIC, depositing title deeds of immovable
property as security - D repaid the debt but however before NIC
could discharge D, a 3rd party approached NIC and claimed that
they are the rightful owners - NIC filed interpleader suit against D
(Def 1) and 3rd party (Def 2) and deposited title deed to the court -
Court will discharge NIC of their liability and then the suit will
continue between D1 and D2
Who cannot file:
○ agent against principal - Duraiswami Chettiar v Dindigul Urban Cooperative
Bank 1957
■ P delivers jewels to K, P’s agent - X claims right over jewels - K cannot
file interpleader suit against P&X - K liable to P as P’s agent
○ tenant against landlord
● Procedure: (Order 35)
○ Plaint to state:
■ plaintiff has no interest in disputed property
■ co-defendants making adverse claims severally
■ no collusion between plaintiff & defendants
■ plaintiff ready & willing to deliver property to rightful owner/court
○ Once Plaintiff delivers property to court, the P is discharged from all liability
(present and future)
■ Discharge of plaintiff: (Rule 2, 4, 6)

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 ○ Suit will continue suit between co-defendants

SUMMARY PROCEDURE – ORDER XXXVII

● Done for the purpose of expeditious or quick disposal of money suits
● Conditions/relates to:
○ suits on bills of exchange, hundies, promissory notes; or
○ suits to recover debt / liquidated amount based on written contract, statute or
guarantee
● Procedure: Rule 2, 3
○ Application by P to sue as summary suit
■ IA seeking permission
■ In the plaint - Plaint filed under s.26 r/w O.7R.1 and O.37
○ Court checks based on IA: If conditions fulfilled, court allows and issues
summons to def for appearance without right to defence (not entitled to file WS)
○ summons for appearance of defendant
■ Orders to appear in court
■ Informs that Summary suit is filed - Def has no inherent right to defend
(no WS)
■ If Def wants WS, then has to apply to court for leave to defence to file WS
■ Court allows def to file WS if plausible triable issues are raised by the def
○ defendant not appear – ex-parte judgement to plaintiff
○ defendant appears – summons for judgement
○ defendant to apply for leave of court to defend – if allowed, defendant to file WS;
if rejected, court decrees suit to plaintiff
○ V.K. Enterprises v Shiva Steels AIR 2010 SC 2885 - Court allowed Def to file
WS in summary suit on grounds that there are substantial questions of law that
can be triable before the suit is disposed of
● Decree in summary suit – appealable
● Summary suits vs Regular suits
○ defendant to apply for leave of court to defend || defendant has right to defend
○ summons for appearance & judgement || summons for appearance only
○ ex-parte decree if defendant fails to appear || ex-parte trial if defendant fails to
appear

SUITS RELATING TO PUBLIC NUISANCE - SECTION 91

● Public nuisance – Section 268 IPC
● Remedies:
○ Punishment under IPC – Section 90 IPC
○ Summary powers exercised by Magistrates to remove public nuisance (Section
133-143 of Criminal Procedure Code)
○ Suit for declaration/injunction/other relief
○ In case of special damage – suit for damages
● Who can file suit: (Section 91)
○ Advocate-general

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 ○ 2 or more persons with leave of court
○ Private person who has sustained special damage.
○ Kanti v Urban Improvement Trust Bikaner AIR 1998 Raj 108
○ Perumal Naicker v Rathna Naicker AIR 2004 Mad 492
● Order refusing leave to file suit for public nuisance – appealable

SUIT RELATION TO PUBLIC TRUSTS - SECTION 92

● Suit relating to public trusts/charities can be instituted by beneficiaries; all persons
interested in suit – representative suit.
○ Venugopala v. V. N Charities AIR 1990 SC 444
● Conditions:
○ Trust created for public purposes of charitable / religious nature
○ Breach of trust
○ Relief under Section 92 claimed, not any other relief
○ R. M. Narayana Chettiar v N Lakshmanan Chettiar AIR 1991 SC 221
● Who can sue: Section 93
○ Advocate-general or Collector
○ Two or more persons interested in trust with leave of court
● Relief allowed:
○ Removal of trustee;
○ Appointment of new trustee;
○ Vest property in trustee
○ Direct the guilty trustee to deliver possession of property to trust;
○ Direct inquiries into accounts;
○ Declaration on proportion of trust property to particular object of trust;
○ Settle scheme of trust;
○ Authorise mortgage or exchange of trust property.
● Doctrine of cy-pres:
○ As nearly as possible to donor/testator’s wishes which cannot be followed
precisely.
○ Raje Anandrao v Shamrao AIR 1961 SC 1206

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 UNIT 7 : Appeals, Revisions and Review

INTRODUCTION
● Appeal is a judicial examination of the decision of a lower court by a higher court -
Nagendra Nath Dey v. Suresh Chandra Dey 1932 PC
● Substantive right and not merely a procedural right
○ No inherent right to appeal
○ Right to appeal is the creation of a statute
○ Accruing on date of institution of suit - s.96 CPC
● Types
○ First Appeal → from court of first Instance to first appellate Court
○ Second appeal → from first appellate court to high court
○ Appeal to Supreme Court from High Court
○ Special Leave Petition to the Supreme Court

FIRST APPEAL (Section 96 – 99A, Order 41)

● Who can appeal:
○ Aggrieved party to suit;
○ LR of aggrieved party to suit;
○ Person claiming under party to suit (transferee/assignee);
○ Court-appointed guardian of minor;
○ Any other adversely affected by decree with leave of court
● When can 1st Appeal be filed:
○ After passing of a judgement and decree -- can be filed after decree and before
final decree
○ Within limitation period under limitation act
● Where can 1st Appeal be filed:
○ Before the court authorized to hear appeals from the decisions of a court
exercising original jurisdiction
○ s.96 CPC r/w Civil Courts Act
● Grounds to 1st Appeal
○ Degree of trial court
○ Judgement of trial court on any issues of fact or law
○ New grounds for claim/defence not allowed to be raised in appeal
■ Shreevastava v Veena 1967 SC
○ Chittoori Subanna v Kudappa Subbana 1965v SC
■ Appellate court not confined to grounds of objection in the memorandum
of appeals only
● Appeal not allowed against: (s.96)
○ Compromise decree;
○ Decree in suit of value less than Rs. 10,000;

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 ○ Final decree if preliminary decree not appealed
● Procedure of First Appeal (Order 41)
○ Memorandum of appeal filed by appellant in prescribed form
■ Memorandum to contain:
● grounds of objections under distinct heads;
● copy of judgment and decree
● memorandum not to contain new grounds not raised in suit
■ Shreevastava v Veena AIR 1967 SC 1193
○ Limitation:
■ to High Court 90 days from date of decree;
■ to any other court 30 days from date of decree
○ If memorandum not in prescribed form
■ return or rejection of memorandum (rule 3)
○ If no prima facie substance in decree or if appellant fails to appear
■ summary dismissal of appeal with reasons (rule 11, 11A)
■ Reasons recorded
■ Ajit Kumar Singh v Chiranjibi Lal AIR 2002 SC 1447
○ If prima facie grounds for appeal
■ appeal admitted (rule 12) and notice to respondent (rule 14)
■ Notice to trial court whose decree is challenged in appeal
○ Non-appearance of appellant
■ appeal dismissed for default (rule 17);
○ non-appearance of respondent
■ appeal proceed ex-parte (rule 21)
○ Respondent file objections and cross-objections (rule 22) - 30 days
○ Cross-objections (rule 22)
■ Objection to memorandum of appeal and Objection to original decree also
on different grounds
■ Example: X filed money suit against Y for Rs.10L - trial court decreed
suity to X, ordering Y to pay Rs.6L - X files appeal against decree on
ground that Rs.10L ought to be awarded - Objection by Y against X’s
Appeal (Rs.10L) and Cross-objection against decree (Rs.6L)
○ Pannala v State of Bombay AIR 1963 SC
○ Oriental Insurance Co. Ltd. v. Usha Gopalkrishnan AIR 2005 NOC 144
● Powers of Appellate Court: (Section 107, Order 41 Rules 23-33)
○ Power to remand
■ s.107(1)(b) r/w R.23,23A,26A
■ Exceptional power - appellate remands case to trial court for retrial
■ Same O.S.No
■ Conditions for remand:
● Decree of trial court set aside/reversed as erroneous decree
● Original suit disposed on preliminary points on retrial necessary in
opinion of appellate court
■ Ashwin Kumar Patel v Upendra Patel 1999 SC
■ Ayyapalli Mohd Haji v Abdul Salam AIR 2001 SC 797
○ Power to frame issues and refer for trial to lower court

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 ■ s.107(1)(c) r/w R.25,26
■ Trial court omitted to frame/try issues essential for deciding dispute
■ Appellate court frames issues and refers to lower court for their trial
■ Rallis India Ltd. v. Lakshmi Kanthan AIR 1976 SC 2330
○ Power to take additional evidence
■ s.107(1)(d) r/w R.27-29
■ General rule - paries cannot produce additional evidence in appeal
■ Exception:
● If lower court refused to admit evidence in trial that ought to have
been admitted
● If party proves evidence not to be within knowledge despite due
diligence during trial
● If appellate court requires evidence to pronounce judgement or any
other sufficient cause
■ Modes of taking additional evidence in appeal Rule 28
● By appellate court itself ot direct trial court to take evidence and
report to appellate court
■ Narayan Reddy v Duggireddy AIR 2001 SC 3685
○ Power to decide case on different grounds
■ s.107(1)(a) r/w R.24
■ Decide case after resettling issues - distinct from grounds relied on by trial
court
○ Power to pass any order/decree (rule 33);
■ Power to modify decree - Rule 33
■ Pass any order or decree
■ Modify decree of trial / set aside or overrule decree of trial court
■ On issues not challenged by parties in appeal
■ On cross-decrees, even if other decree not challenged in appeal
○ Power to stay proceedings of lower court (rule 5, 6)
■ Filing appeal not automatically stays execution proceedings
■ Appellate court to expressly order stay
○ Power of summary dismissal of appeal (rule 11, 11A)
■ Rule 11 and 17
■ Appeal not in prescribed form
■ No substance prima facie
■ Appellant fails to appear on date of hearing
○ Other powers of court of original jurisdiction

SECOND APPEAL (Section 100-103, 107, 108, Order 42)

● Sec.100 - appeal from decree passed in appeal by court lower than HC
● First appellate court lower than HC - appeal against order of 1st appellate court to HC as
2nd appeal
● Limitation - 90 days from date of 1st appellate court’s decree/order
● If HC satisfied - case involves substantial question of law - 2nd appeal is admitted
● Substantial question of law:

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 ○ Conflicting judicial decisions
○ Non-consideration of relevant evidence
○ Consideration of irrelevant evidence
○ Misconstruction of evidence
○ Misrepresentation of material facts
○ Hero Vinoth v Sheshamal
○ Major singh v rattan singh 1997 SC
● Non- substantial question of law
○ Concurrent findings of trial court and 1st appellate court
○ Questions settled by SC
○ Improper reasoning of trial court
○ Kanti Devi v Poshi Ram 2001 SC
○ Chunnilal v Century Spinning and Manufacturing co 1962 SC
● Essentials: (Section 100)
○ to High Court only
○ from decree in appeal by subordinate court
○ substantial question of law
○ Hero Vinoth v Seshamal AIR 2006 SC 2234
● Second appeal not allowed: (Section 101, 102)
○ no substantial question of law involved
■ Kamti Devi v Poshi Ram AIR 2001 SC 2226
○ original suit for recovery of money less than Rs. 25,000
○ Letters patent appeal – Section 100-A
■ 2002 Amendment Act- no further appeal from decree/order passed by
Single HC Judge in 1st or 2nd appeal
○ Cases where first appeal to be filed i HC
● Procedure:
○ Memorandum of appeal stating substantial question of law
○ Summary dismissal of appeal - no substantial question of law involved
○ If appeal admitted - notice to respondent to lower courts
○ High Court can frame additional substantial question of law and decide appeal -
reasons to be recorded
○ filed within 90 days from date of decree in first appeal
○ If no substantial question of law
■ summary dismissal of second appeal
○ If appeal admitted, High court itself formulate substantial question of law
■ Notice to respondent
● Power of 2nd Appellate Court (s.107-108)
○ Power to remand
○ Power to frame additional issues
○ Power to take additional evidence
○ Power to decide case on different grounds
○ Power to pass any decree/order
GCR Discussion:
Q: If Section 100-A of CPC prohibits letters patent appeal (appeal against, decision of Single
judge of HC in OS or RFA), how do some State High Courts allow appeal against orders

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 of Single Judge of HC to Division bench of same HC?
A: It would be distinct from an aggrieved party filing a second appeal from Single bench's
order to Division bench. Reference by the court itself to Division bench or higher court is
not Letters Patent appeal

Difference between 1st and 2nd Appeal

● Against decree of court of OG Jurisdiction || Against decree/order of appellate court
● In higher court above trial court || in HC only
● On question of law and fact || on substantial question of law only

APPEAL FROM ORDERS (Section 104-108, Order 43)

● General rule – no appeal against orders unless expressly provided.
○ Exceptions – orders under Section 104 and Order 43 appealable. - exhaustive - no
second appeal against appealable orders also
● Any order (appealable or not) can be challenged in final appeal against the final decree
No second appeal against appealable orders also
● Limitation: to High Court 90 days; to other courts 30 days from date of order.
● Examples under Order 43:
○ Order returning plaint
○ Order of defendant’s arrest before judgement
○ Order granting compensatory costs
○ Order refusing permission to sue for public nuisance
○ Order of attachment of defendant’s property before judgement
○ Order of temporary injunction
○ Order refusing to set aside abatement of suit by delay in adding LR on record

APPEAL TO SUPREME COURT (Section 109, Order 45- Article 133,

134A Constitution)
● Art 133, 134A -- Appeal to lie if
○ Case involves substantial question of law of public importance (narrower in
scope w.r.t HC ) AND
○ HC should be of the opinion that the question of law is to be adjudicated by the
SC
● Conditions for appeal to Supreme Court (Section 109)
○ Filed against the Final Decree / order by High Court
○ Must involve substantial question of law of general public importance
○ Opinion of the High Court that the question ought to be decided by the Supreme
Court. (this should be given as a “certificate of fitness” by the HC)
● Procedure: Order 45 Rules 2-12
○ Aggrieved party petition High Court passing impugned decree for certificate of
fitness

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 ○ High Court issue show cause notice to opposite party as to why certificate not
to be granted
○ High court to decide petition for certificate within 60 days
○ If certificate issued under Article 134A
■ appellant to furnish security for costs of service to respondent and
expenses for translation, transcription, transmission of case record to
Supreme Court.

REVISION (Section 115)

● Conditions:
○ to High court only
○ case must be decided by lower court
■ Includes interim order of lower court also - Considered as decided in
matter of a particular IA
■ Baldevdas Shivlal v Filmistan Distributors Ltd AIR 1970 SC 406
○ against non-appealable decision of subordinate court
■ If decree/order appellable - no revision is allowed and instead an appeal is
to be filed
■ Order of temporary injunction - appellable - no revision against temporary
injunction order
○ on jurisdictional errors by subordinate court which has–
■ exercised jurisdiction not vested by law; or
● Ordering appearance of pardanashin woman
● execution of preliminary decree before final decree passed
● Order evicting persons protected under special rent control statute
● Jamadhar v Amirbi AIR 1985 Kar 91
■ failed to exercise jurisdiction vested by law; or
● Order staying suity under s.10 through matter pendente lite in
earlier suit is not the same
● Order refusing temporary injunction though applicant proves 3
pillar test
● Order refusing to summon witness for cross-examination in IA for
temporary injunction
● State of Tamil Nadu v Ayya Nadar 1978 (2) MLJ 276
● Srinivas Rao v Manohar Rao AIR 1981 AP 406
■ exercised jurisdiction vested by law in illegal or materially irregular
manner.
● Matter defects in procedure
● Non consideration of relevat evidence
● Decision without recording reasons
● DLF Housing Co. Ltd. v. Sarup Singh AIR 1971 SC 2324
○ Suit for specific performance for sale of land - part of land
acquired under Land Acquisition Act - compensation
disputed - correction by HC in revision - whether HC

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 revisional jurisdiction covers correction of decision
○ Material irregularity/ illegality of vested jurisdiction does
not refer to decision being right or wrong - merely the
manner of reaching such decision being right or wrong
● Aman Finance Corporation v Nitesh Kumar Sinha AIR 1999 Pat
● Limitation - 90 days from order

REVIEW (Section 114, Order 47)

● Judicial re-examination of case by same court and same judge
● Who can file:
○ Aggrieved party to the case
○ Any person bound by the decree/order (eg. rep application)
○ Suo motu by court - RS Nayak v AR Antulay 1984
● Once judgment is pronounced, it is absolute and the court has no jurisdiction to alter.
● Conditions:
○ decree/order non-appealable; or
■ That is when there is no option to file an appeal against an order or decree
○ appealable decree/order but appeal not filed; or
■ Appeal lies against decree of court but not being filed
○ on reference from Small Causes court
● Grounds:
○ discovery of new, important matter/evidence – not available or known after due
diligence
■ Party filing must convince the court that the evidence was
● not within the knowledge
● not in a position to be produced despite due diligence
● subsequent change of events which has led to the discovery of the
evidence
■ Northern India Caterers Ltd v. Lt. Governor of Delhi AIR 1980 SC 674
■ BCCI v NC CLub AIR 2005 SC
○ error apparent on the face of the record
■ Error made by the judge
■ Error can be seen by glancing through the case and the judge need not
have to go in detail
■ Examples:
● Law amended retrospectively but the judge failed to apply the
same
● If judge has not tried the material issue
● No notice to parties before the pronouncement of judgement
(procedural defect)
● Want of jurisdiction (court does not have jursdiction) apparent on
the face of it
● Contrary precedent of SC
■ Error not apparent examples:

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 ● Erroneous decision of court on merits - appropriate platform
would be to file appeal and not revie
● Different ruling by the HC - appeal and not review
● Judgement is based on some issues and not all - appeal and not
review
■ Thungabadra Industries v Gov of AP 1964
■ Labh Singh v Bant Singh AIR 1999 P&H 189
○ Other sufficient reasons
● Procedure:
○ Ex parte application is filed by aggrieved party
○ aggrieved party apply for review after decree/order within 30 days from
decree/order
○ If no sufficient ground - court rejects application
○ If sufficient ground - show cause notice issued by court to the opposite party
○ court reject application if no sufficient ground or call opposite party through show
cause notice
○ Hearing of application for review – same judge, same court
○ If application granted – rehear case on review – original decree recalled
○ Case reheard on merits - decree/order confirm or varied
● Order allowing / rejecting review application - appealable by opposite party
● Review by HC - Art. 226
● Review by Supreme Court: Article 137 of Constitution

REFERENCE (Section 113, Order 46)

● Subordinate court state case and refer to High Court for opinion when under doubt on a
question of law
● Conditions:
○ suit/appeal pending in subordinate court
○ question of law involved on validity of any statute/law
○ question of law material to case
○ subordinate court has reasonable doubt on validity of statute/law
○ statute/law not been declared invalid by High court or Supreme court - position
not clear
○ Raja Ganga Pratap Singh v Allahabad Bank Ltd AIR 1958 SC 293
○ Municipal Corporation of City v Shivshankar Gaurishankar AIR 1999 SC 874
● Procedure:
○ subordinate court to formulate question of law with brief statement of facts and
its own opinion on validity of statute/law and refer to High Court – suo motu or
on application
○ subordinate court may stay its proceedings or continue subject to decision of
High court
○ High court may decide question of law and transmit decision to subordinate court
○ High court may withdraw entire case from subordinate court and hear itself
○ High court may set aside or alter decision of referring court in the case

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 ○ Art 228 Consti - HC satisfied - case pending in lower court involves substantial
question of law - interpretation of constitution - necessary to dispose the case -
HC withdraw case from lower court and decide itself - or decide substantial
question and return case to lower court to be decided in conformity with HC’s
judgement on the substantial question
○ S.113 CPC wider than Art.228 Consti -- art.228 gives power only if question
involves interpretation of consti only || 113 for any law

DIFFERENCES:

Appeal Revision

● High court or other court ● High Court only

● Objection on fact or law ● Objection on jurisdiction only
● Appealable decrees/orders ● Non-appealable decrees/orders
● Application of party only ● High Court suo motu also

Appeal Review

● Superior court (diff judge) ● Same court (same judge)

● Wider grounds of objection ● Limited grounds of objection
● Second appeal ● No second review

Revision Review

● High court only ● Same court

● Allowed against non-appealable
decisions only
● High court suo motu also
● Grounds of jurisdiction only
● Allowed against appealable decisions
also, if no appeal been filed
● On application of party only
● Grounds of objection – discovery of
new matter, apparent error and others

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 UNIT 8 - RESTITUTION, CAVEAT, INHERENT POWERS OF
COURT

RESTITUTION:
● Section 144
● Object:
○ no person to suffer from act of court;
○ any injury caused by act of court ought to be undone
● Meaning
○ on reversal of court decision, restoring to a party what was lost in execution of
decision or directly from such execution; parties to be placed in the position
which they would have occupied but for the decree or order reversed, modified or
set aside.
● Conditions for restitution:
○ restitution for decision reversed or set aside
○ applicant entitled to benefit after reversal
○ claim directly due to reversal
● Who can apply:
○ Any party entitled to benefit – need not be appellant only, transferee of decree,
LR.
● Procedure:
○ Judgment-debtor to apply to court of first instance for restitution
○ court issues notice to all concerned parties
○ duty of court to pass any orders required for such restitution – not discretionary
● Case laws:
○ Lala Bhagwandas v. Lala Kishen Das AIR 1953 SC 136
○ Vindhyachal Tewari v Board of Revenue AIR 1956 All 663
○ Eastern Coalfields Ltd v State of Madhya Pradesh AIR 2003 SC 4482

CAVEAT:
● Section 148-A
● Meaning: (not defined in CPC) caution/warning by party to court – not take action /
grant relief to applicant without information/notice to party lodging caveat called
caveator
○ warning-cum-request
○ Nirmal Chandra v. Girinder Narayan AIR 1978 Cal 492
● Object:
○ Protect/prevent/Safeguard interest against order/relief ex parte
● Parties:
○ Caveator (person filing)
○ Respondent (likely to file a plaint or IA against the caveator)

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 ● Duty of Court:
○ After caveat filed - any application for any ex-parte relief against caveator - court
bound to issue notice to caveator before granting any relief - should not grant the
relief
○ Notice issued at expense of caveator - deposited at time of lodging caveat
application
● Procedure:
○ Caveator to lodge caveat in court, notify persons expected to sue caveator, deposit
process fee in court
● Rights and duties of caveator:
○ To give notice of lodging of caveat to persons who may make application for
relief
○ To deposit process fee in court for the court to issue notice to caveator before
granting interim order against caveator
○ To deposit process fee for opposite party to furnish copy of application to
caveator
● Rights and duties of applicant:
○ To furnish copy of application and documents to caveator at caveator’s expense
● Rights and duties of court:
○ To issue notice of application for interim relief to caveator – enable caveator to
appear, object to application
● Effect of failure to serve notice to caveator:
○ Interim order passed by court against caveator without notice to caveator – not
void – operates till set aside on appearance of caveator.
○ RBI Employees Association v. RBI AIR 1981 AP 246
■ If court grants ex-parte (bonafide) - not void - operative till set aside
(caveator should bring it to the notice of the court)
● Duration of caveat: valid for 90 days from date of lodging – renewed at the end of 90
days.

INHERENT POWERS OF THE CIVIL COURT

● Sec.148 - Enlargement of time by court over specified fixed time for any act under CPC
○ Extend time to a party over any specified fixed time to an act in CPC
○ (eg: O8R1 - time limit for filing WS - if unable, then Def can apply to court
under s.148 for extension)
● S.149 - permission by court to consider court fees payment in full or partly
○ Generally: Plaintiff required to file court fees - failure can result in rejection of
plaint
○ CC has the discretionary power to consider such amt paid to be payment in full
● Sec.150 - same extent of power of courts to which business of another court is
transferred
○ Power to proceed with the cases which have been transferred from another civil
court.
○ (example in case HC does it under writs)

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● Sec.151 - power of court to pass any orders necessary for ends of justice or to
prevent abuse of process of court
○ Quite wide
○ Any types of orders to meet ends of justice or prevent abuse of court process
○ Incase any relief is not given under CPC, then s.151
○ Residuary provision
● Sec.152 - power of court to correct clerical, arithmetical mistakes in its judgements,
decrees and orders
○ Correct any clerical, arithmetic or petty mistake
○ Without waiting for party to apply
○ Suo motu
● Sec.153 - power of court to amend any errors in any proceedings
○ Pleadings included
○ Amend any error in any proceedings
○ Without waiting for parties to approach
○ Suo Motu
● Sec. 153A - power of trial court to make any changes to degree against which appeal
filed
○ Power to make any changes to decree against appeal which has been filed
○ While the appeal is pending, trial court has the power to make such decree, notice
should be sent to appellate court about the changes

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 UNIT 9: LIMITATION ACT

INTRODUCTION:

● Scheme of Act: 32 Sections, 137 Articles in Schedule of 3 parts – suits (1st Schedule),
appeals (2nd Schedule), applications (3rd Schedule).
● Bars the remedy but not the right accrued
● The law of limitation bars an action and not a defence
○ It is open to the defendant in a suit filed by the plaintiff to set up a plea in defence
which he may not be able to enforce by filing a suit.
● Rationale of the Act can be seen through the incorporation of two maxims:
○ States responsibility to end to Litigation - Interest reipublicae ut sit finis litium
○ Law assists the vigilant and not those who sleep over their rights - Vigilantibus
non dormientibus jura subveniunt
● Interpretation:
○ Strict Interpretation
○ Exhaustive - except a few specific situations
○ Not retrospective: limitation law not provide longer period and revive dead
remedy or extinguish vested right of action by shorter period.
○ Interpretation favouring remedy rather than barring remedy to be chosen
● Applicability of Act:
○ Judicial proceedings - suits, appeals, applications.
○ Not applicable: quasi judicial proceedings, criminal proceedings, writ petitions
■ Not Applicable to writ petitions - Motichand v Munshi AIR 1970 SC
○ Art.113 - 90 days to file special leave to appeal before the SC
● Difference between limitation and laches:
○ Rule of law || principle of equity
○ Limited discretionary power of court to condone delay || wide discretion of court
to condone delay
○ Fixed period || reasonable period
○ Ignorance of plaintiff immaterial || ignorance of plaintiff considered for
condonation
● Difference between limitation and estoppel:
○ Procedural rule || rule of evidence
○ Restrains person claiming right to sue after period || person not allowed to deny
truth of statement made before by him
○ Not apply to defence || applies to both parties
○ Passivity of party || intentional act/omission of party.
● Difference between Limitation and Prescription :
○ Certain time after which litigation cannot be instituted || Certain time after which
substantive right is extinguished /acquired
○ Affects remedy and not right || Affects underlying right
○ Procedural || Substantive

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GENERAL PRINCIPLES AND RULES OF LIMITATION (Section 3)
● It would be the duty of the court to dismiss the suit, appeal, application that has been
filed after the period of limitation
● Duty is on the plaintiff/applicant/appellant to prove as to why the suit/application/appeal
should be entertained/accepted by the court and not get rejected when filed after
limitation
○ Defendant/respondents grounds raised challenging limitation as a defence is not
relevant.
● Immaterial whether suit a plea to dismiss the case filed beyond limitation has been set up
in defence by the opposite party
● Defence of limitation cannot be waived by agreement between the parties
● Suit, appeal, application to be filed within the period prescribed
● Limitation only bars remedy, does not affect underlying right (Important Topic)
○ Spears v Hartley (1800) 170 E.R 545
○ PNB v Surendra Sinha AIR 1992 SC 1815
■ Debt barred by limitation - adjustment of securities deposited by surely
allowed to the creditor
● Exception:
○ Section 5 - Condonation of delay
○ Section 25 – acquisition of easement
○ Section 27 – extinguishment of right / adverse possession

Exception: Condonation of Delay (Section 5)

● Condonation of delay is an exception to the general rule of limitation of sec.3
● Applicable to appeals and applications
● Not applicable to suits and execution applications
● General Principles:
○ Dealy of each day beyond limitation has to be explained (not an hourly update)
○ Sufficient cause has to be proven and is decided based on the facts and
circumstances of the case.
○ Condoning delay is the discretion of the court and the court is to apply a liberal
approach for condonation of delay
○ Dealy has to be usually condoned as refusal can result in throwing out
(dismissing) a potential meritorious case and this would “defeat the ends of
justice”.
○ If the delay is not deliberate nor is it intentional , then the substantive justice is to
be followed to override technical procedures
● Condonation of delay in filing appeal and application allowed – sufficient cause – no
Condonation of delay for filing suits.
● Sufficient cause: not defined – liberal interpretation to advance justice.
○ Collector (Land Acquisition) v. Katiji AIR 1987 SC 1353
● Any suit instituted after the prescribed period of limitation has to be dismissed inasmuch
as there is no provisions for condonation of delay in filing a suit.

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 ● In respect to appeals and applications, however the Act provides for an extension of
time and condonation of delta in filing appeals and applications.
● Factors/Conditions that court will look into:
○ Court will determine the case for condonation on merits and not dismiss it merely
on technical grounds.
○ The Court must also consider an important aspect that non-filing of appeal or
application has created a valuable right in favour of the opposite party which
cannot be defeated or interfered with lightly.
● Understanding sufficient cause;
○ Delay in filing of appeal or application can be condoned if there is “sufficient
cause” that has been proven by the party.
○ Not defined in the act
○ Wide, comprehensive, elastic
○ Interpreted liberally by courts to ensure the achievement of justice - Collector v.
Katiji
○ Not meant to destroy accrued rights
○ Sufficient cause cannot be liberally interpreted if negligence, inaction or want of
bona fides is attributable to the party in delay.
● Examples of sufficient cause for condonation:
○ Balakrishnan v Krishnamurthy 1998 SC - Case was filed in the wrong court
under a bonafide mistake. This was a result of wrong advice given by the
advocate. There was a grave illness that was faced by the party and the court held
that there was a bonafide mistake of the advocate and thus condoned the delay.
● Example of insufficient cause and delay not condoned:
○ Collector (Land Acquisition) v Katiji 1987 SC - Mere illness, illiteracy and
poverty of the party were the key determining factors in this case. Official work -
Marriage - Misleading conflicting HC decisions - Minority - Pardanashin woman
- inability to instruct advocate. (Case is an important precedent)
○ Principles laid down in the case:
■ Litigant does not stand to benefit by lodging an appeal late
■ Refusing to condone delay can result in a meritorious matter being thrown
out at the very threshold and cause of justice being defeated
■ “Every days delay must be explained” does not mean that a pedantic
approach should be made
■ Substantial justice is always preferred over technical considerations
■ There is no presumption that delay is occasioned deliberately, or on
account of culpable negligence or on account of mala fide.

Legal disability: (Section 6, 7, 8, 9)

● When the litigant is under any legal disability such as minority or insanity, then the
limitation period is postponed and it commences from the day the disability ends (section
6)
● Conditions of Sec 6:
○ Person entitled to sue - under disability
○ Legal disability - minority (includes child in womb), insanity,

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 idiocy
○ Disability existing at the time when limitation starts
○ When right to sue accrues - Start of limitation period postponed till end of
disability for suit, execution (not for appeals)
○ Limitation starts - when disability ceases, not from cause of action
○ To suits & execution application – not to appeal/revision/review etc., not to suit
enforcing pre-emption rights – sec 8
○ Disability existing at the time of cause of action – not arising after
limitation starts
■ Shah Hiralal v Shah Fulchand AIR 1956 Sau. 89
■ Nathuram v Manphool (1996) 4 SCC 462
● Several disabilities – limitation starts when all disabilities have ceased - sec 6(2)
● Disability lasts till death – limitation for LR starts from date of death - sec 6(3), (4), (5)
○ Death before disability ceases – LR can sue within limitation period starting from
death – sec 6(3)
○ Death before disability ceases – LR also under disability at time of death – LR
can sue within limitation period starting when LR’s disability ceases – sec 6(4)
○ Death after disability ceases but within extended period – LR can sue within the
extended period, as available to deceased – sec 6(5)
○ Period of extension of limitation under section 6 – not exceed 3 years from
cessation of disability/death, or the original limitation period, whichever is lesser
● Sec 8 - Darshan Singh v Gurdev Singh AIR 1995 SC 75;
○ Madhukar Vishwanath v Madhao (1999) 9 SCC 446
○ Once time starts running, subsequent disability not affect limitation – sec 9
○ State of Punjab v Surjit Kaur AIR 2002 P&H 68
● Continuous running of time - Section 9:
○ Once time has begun to run, subsequent legal disability does not stop time
○ If legal disability occurs after limitation period has commenced (cause of action),
there would be no postponement of limitation under section 6.
○ Example: Y Commits a breach of contract against X, a minor in 2010. X turns 18
in 2015 and is declared legally insane in 2016. X recovers from insanity in 2019.
When did the limitation start and when will it end?
■ Answer: Starts in 2015 and would not end with the onset of subsequent
legal disability.

Exclusion of time: (Sections 12-15)

● In computing limitation period the following shall be excluded (these days are to added to
the limitation period)
● Periods excluded:
○ Day when limitation starts; last day of cause of action is excluded (so if its ends
on 3rd, the limitation period starts from 4th)
○ Day when decree/order pronounced; (for appeals)
○ Time for obtaining certified copy of decree/order/sentence;
○ Time for hearing application to sue as indigent person; (if limitation period is 1
year from the last day of cause of action and were filing the case as an indigent

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 person - investigation and mini trial is excluded)
○ Time in proceedings initiated bonafide in court without jurisdiction; (return of
plaint)
○ Period of stay on proceedings by court;
○ Time for giving notice/obtaining consent from government as required by law;
(special suit, suit against foreign ruler etc..)
○ Period during which receiver/liquidator appointed and functioning;
○ Time in proceedings to set aside sale of property pending in suit for possession;
○ Period when defendant outside India.

POSTPONEMENT OF DATE WHEN LIMITATION STARTS (Sections

16-23)
● Start of limitation period is postponed to a later date
● Person entitled to sue dies before right to sue accrues - limitation starts afresh when
LR of deceased comes to exist - section 16
○ Not applicable to appeals, suit of possession of Im.P, suits of hereditary office
○ Example: X dies in 2017 due to medical neg by Y, with no immediate heirs -
distant relative of X found to be LR in 2019 - limitation starts from 2019 and not
2017 when the distant relative came to exist.
● Date when period of limitation starts postponed till:
○ Person who can sue/be sued comes to exist
■ on death of person, limitation starts when LR found to exist
○ in case of fraud/mistake, when fraud/mistake discovered or could have been
discovered with reasonable diligence
○ date of acknowledgement in writing of right/liability
○ date of payment, in part/whole, of debt
○ in case of new plaintiff/defendant added in pending suit, date when added as
plaintiff/defendant
○ in case of continuing breach of contract/tort, every day the breach/tort continues
○ date when injury results in case of suit for compensation for special damage.
● Effect of Fraud or Mistake – section 17
○ Does not start from the date from when the fraud was committed but rather from
the date when the litigant has or could have discovered the fraud/mistake with
reasonable diligence
○ Does not affects the validity of transactions of transfer of property to bona fide
purchaser for value
■ If the property under contract has been further transferred in bonafide
transc. then the property cannot be returned to the original owner - to
ensure the bonafide subsequent purchases
■ K Defrauds P into selling land in 2015 and P discovers in 2017 - limitation
period starts from 2017 when the fraud was discovered and not 2015 when
the fraud was committed - and if P sold land to Q in 2016 then P cannot
recover land but can recover compensation from K
○ Limitation starts from discovery of fraud or mistake if:
■ suit/application is for relief due to fraud by defendant or due to mistake

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 ■ knowledge of plaintiff’s right / title underlying the suit/application –
fraudulently concealed by defendant,
■ document necessary to establish plaintiff’s right – fraudulently concealed
by defendant Inder Singh v Corporation of Calcutta AIR 1969 Cal 418
■ Ramesh Desai v Bipin Mehta AIR 2006 SC 3672;
■ Indian Bank v New India Maritime Agencies Ltd 2003 (1) CCC 427
● Acknowledgement: (Section 18)
○ when acknowledgement of liability is made –a fresh period of limitation begins.
○ Conditions for valid acknowledgement:
■ before limitation period for debt expired – acknowledgement of subsisting
debt allowed –
● exception: acknowledgement of time-barred debt allowed if
express promise to pay (sec.25(3))
■ in writing and dated
■ signed by debtor, if written by another
■ dated – if undated, oral evidence allowed to prove date
■ by debtor / person deriving title from debtor
■ acknowledgement of liability – no need for promise to pay – even refusal
to pay amounts to acknowledgement – denial of debt is not
acknowledgement
■ made to creditor/plaintiff and any other person – not stranger
■ Acknowledgement to be express admission of liability - even without the
promise to discharge liability - even with refusal to discharge liability
● Exception: statement denying existence of liability is not an
acknowledgement
○ State of Kerala v Chacko AIR 2000 SC 3597
○ Syndicate Bank v Veeranna AIR 2003 SC 2122
○ Carboxy Chemicals Ltd v Deepika Housing Project Ltd AIR 2007 Cal 280
○ Valliamma Pillai v Sivathanu Pillai AIR 1979 SC 1937
● Part-payment of debt: (Section 19,20)
○ Fresh limitation starts from the date of part payment
○ Period of limitation starts afresh from date of payment towards any debt/legacy
Conditions:
■ paid before period of limitation expires (1st emi)
■ paid by person liable or his duly authorised agent(s.20) - not stranger to
transaction
■ acknowledgement of payment in writing and signed by debtor
■ payment to a person entitled to payment – not to a stranger.
○ Mode of payment:
■ No prescribed mode – money/goods –dishonoured cheque not payment
○ Manimala Devi v Indu Bala Debya AIR 1964 SC 1295
○ Sant Lal Mahton v Kamla Prasad 1952 SCR 117
○ Jiwan Lal v Rameshwar Lal AIR 1967 SC 1118
● Where new plaintiff/defendant added by court pendente lite - limitation starts from
date of adding for such party (section 21)

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 ● Where continuing breach of contract or continuing tort - limitation starts at every
day of breach of contract or tort being committed - section.22
○ G throws garbage on H’s kand in 2018 and leaves it there - limitation period for H
to sue G for tort is 1 year from date when right to sue accrues to H - right to sue
accrues to H on each day when garbage remains on H’s property
● Where cause of actions is special damage from act - limitation starts from date when
special damages took place, not from date when act committed - section 23.
○ K is employed in R’s asbestos factory from 2009 to 2012 without being give
proper safety equipment - K is diagnosed with asbestos poisoning in 2015 -
limitation period for K to sue for negligence starts from 2015 and not 2009 or
2012.

EASEMENT BY PRESCRIPTION (Section 25, 26)

● Limitation for Reversioner to sue against easement over servient property - Sec.26
○ Access to use of light/air/water under s.25 - over property in possession of
life-estate holder - subsequently coming into possession of reversioner (entitled to
property after death of life-estate holder) - reversioner can sue against easement
by prescription under s.25 after 25 years also - period of life-estate holder’s
possession of property excluded from 20 years.
○ Example: Y is life-estate holder of servient property from 1990 and Z is
reversioner - X is peacefully & openly exercising right to use water from servient
property since 1995 - Y died in 2005 and Z took possession of property in 2005 -
Z sued to restraint X from using water in 2015 and X claimed easement under
s.25 - ground that X using water from property for more than 20 years - whether
easement created under s.25 and 26???????
● Right to access and use of light, air to any building becomes absolute, on certain
conditions (Section 25)
○ access and use enjoyed as easement
○ openly & peacefully enjoyed
○ as easement –right claimed on another’s property, not own property
○ as a right
○ without interruption
○ for 20 years (30 years for government property)
● When easement rights being enjoyed for 20 years disturbed –suit to enforce easement
rights to be instituted within 2 years from such disturbance –if not, right not absolute
Venkanareddy v Kotireddy AIR 1967 AP 81
● Raja Broja Sunder Deb v Moni Behara AIR 1951 SC 247
● A Sundar v S.N.Jaiswal AIR 1988 Pat. 216
● Reversioner right (Section26)
○ Period of exercise of easement during lease / life-estate over servient tenement is
excluded from 20-year period under section 25
○ Lessor / Reversioner gets 3 years from end of lease/life-estate to resist the
exercise of easement

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 Extinguishment of right / Adverse Possession – Section 27
● Conditions for adverse possession:
○ defendant in actual possession
○ possession continuous without interruption
○ possession publicly held adversely to rightful owner
○ plaintiff – notice/knowledge of such adverse possession
○ possession for at least 12 years (30 years for government
property) Anjanappa v Somalingappa (2006) 7 SCC 570
● Lal Bahadur Singh v State of MP 1998 AIHC 1862 (MP)

VOID ORDERS:
● In Union Carbide Corpn v UoI (1991) it was held that even if the act is void or ultra
vires, the aggrieved party must approach the court within the period of limitation.
● In such cases where no limitation period is provided for, the provisions of Art.113
(residuary procision) shall be applicable (3yrs limitation period).

Limitation periods – Suits – Division I

Period Description of Suit Time from which period
of begins to run
Limitation

One year Suit relating to Torts for ● act/omission takes place

compensation:
1. Negligence
2. False imprisonment
3. Malicious prosecution
4. Libel / slander
5. Inducing breach of contract 6.
Wrongful seizure of goods
● imprisonment ends
● plaintiff acquitted or
● prosecution terminated
● libel published – words
spoken or loss occurs
● Date of breach of contract
● Date of seizure

Two years Suit under Indian Fatal Accidents Act Date of death of person killed
by LR

Three Suits relating to Torts: 1. Date of trespass

years 1. Trespass to immovable 2. When waste begins
property 3. Date of infringement
2. Waste
3. Infringement of copyright or other
exclusive privilege

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 Suits relating to accounts When account demanded or agency
(principal & agent; partners) or partnership dissolves

Suits relating to contracts: • when wages accrue due;

• wages; • When price becomes payable; •
• price of goods; When debt is made or demand is
• recovery of debt; made
• breach of contract; • When bill or note falls due or on
• bill of exchange or pronote; surety pre-fixed date
against principal • When notice is given
debtor; • When arrears become due •
• arrears of rent; When time fixed for
• specific performance of performing or performance
contract refused

Suit for declaration • when forgery/fraud

• Declare forgery / fraud discovered by plaintiff
• Other declaration • When right to sue first
accrues

Suits relating decrees & • When facts entitling plaintiff to set

instruments: aside become known to him
• cancel or set aside contract • Set • When minor attains majority
aside sale by guardian

Three Suit relating to Movable • When owner discovers the

years property: person in whose possession
• Recovery of specific property stolen, property is – when property
misappropriated etc • Recovery of wrongfully taken
pawned property • Date of refusal after demand

Suits for which no limitation is When right to sue accrues

prescribed elsewhere
(article 113)

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 Twelve 1. For possession by mortgagee
years 2. For recovery of possession of
immovable property
transferred by mortgagee to 3rd
party
3. For possession of immovable
property based on any interest 4. For
recovery of possession from tenant
5. Relating to trust immovable
property – recover
possession, set aside sale by
trustee
1.When mortgagee becomes
entitled to possession
2.When transfer is known to
plaintiff
3.Date of dispossession / when
possession becomes adverse to
plaintiff
4.When tenancy terminates
5.When transfer is known to
plaintiff

Execution of any decree When decree becomes

(except mandatory injunction) enforceable

Thirty 1. Suit for redemption / 1. When right to redeem

years possession by mortgagor
2. Suit for foreclosure by
mortgagee
3. For recovery of possession of
public street by public
authority
4. Any suit by central/state
government
accrues
2. When money secured by
mortgage becomes due
3. Date of dispossession
4. when time starts in such suit
for private person

Limitation period – Appeals – Division II

Period Description Time from which

of period begins to run
Limitation

Appeal under Cr PC - Article 114, 115

30 days Appeal to any court except High Court Date of decree or

from any decree or order order

90 days Appeal to High Court from any decree Date of decree or

or order order

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Limitation period – Applications – Division III
Period Description Time from which period begins
of to run
Limitation

30 days To restore suit/appeal/case Date of dismissal

dismissed for non-appearance or
default of
plaintiff/appellant/applicant

To set aside decree or order passed Date of ex-parte decree or order

ex parte

For review of judgement of Date of date of

court (except SC) decree/order following the
judgement

60 days To set aside order of abatement due Date of order of

to delay in bringing LR on record abatement

For leave to appeal as pauper in Date of decree to be

High Court appealed

For certificate of fitness from Date of order or sentence of HC

High Court to appeal to SC

For special leave to appeal to SC Date of order of refusal

when HC refuses certificate (SLP)

90 days To High Court for revision Date of decree / order to be

revised

To SC for special leave to appeal Date of judgement or order

(except under Art. 134 of
Constitution)

GCR Discussion:
Q: Limitation Act - sec 6 read with sec 9:
X, a minor under guardianship of mother –

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 X is deprived of possession of property by trespasser P – X dies before turning
18 – after one year from X’s death, X’s widow adopts son B who is minor &
also X’s heir – B wants to sue P after turning 18 – whether limitation for B to
sue P will commence after B’s legal disability (minority) ends?Answer as comments
below, focusing on application of sec 6,9 to problem only
Ans: X's mother would have the right to sue P as she accrues this right soon after X's death
since she is X's guardian, thereby making her the rightful LR. However, her right will not
be barred by B's minority under Section 9 because it acts as a subsequent disability.

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