JUDICIARY-GOLD STUDY MATERIAL

RJS MAINS - CIVIL PROCEDURE CODE 01

MODEL ANSWER
Maximum Marks: 50
1. Write a short note on Dominus Litum. (3 Marks)
Ans:
Dominus litis is the person to whom a suit belongs and is master of a suit and is having real interest in the decision
of a case. The plaintiff being dominus litis cannot be compelled to fight against a person against whom he does not

2. Can a plaint be rejected on the ground that a suit is barred by res judicata?

c o m
claim any relief. The plaintiff in a suit is required to identify the parties against whom he wants to implead as defendants
and cannot be compelled to face litigation with the persons against whom he has no grievance.
(3 Marks)
Ans:

rs .
Order VII Rule 11 deals with the rejection of plaint. In Rajendra v Hemant, it was observed that the aim of rejection of
plaint is to put an end to the sham litigation so that further judicial time is not wasted

e
In Keshav Sood v. Kirti Pradeep Sood, 2023, SC held that since the decision on plea of res judicata requires the
decree and plaint of previous suit, there is need to examine it on the basis of evidence and not just plaint and under

k
Order 7 Rule 11, the Court can only consider the averments made in the plaint. Hence, the plaint cannot be rejected.

3.
can B sue A?

r an
Thus, a plaint cannot be rejected on the ground that a suit is barred by res judicata.
A, residing at Delhi, publishes a defamatory statement at Mumbai against B, residing at Calcutta. B sues A. Where
(3 Marks)
Ans:

o p
Section 19 of the CPC provides for the jurisdiction in suits for compensation for wrongs to person or movables. Where
a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local

T
limits of the jurisdiction of one Court and
- the defendant resides within the local limits of the jurisdiction of another Court or
- carries on business within the local limits of the jurisdiction of another Court or
- personally, works for gain within the local limits of the jurisdiction of another Court
2I7A0G
4C3G of the plaintiff in either of the said Courts.
The suit may be instituted at tr-
the option
2E5F

In the present case, Calcutta is the place of residence of the defendant B and wrong (publishing defamatory
statement) was done in Mumbai. Hence, B may sue A either in Calcutta or Mumbai.
4. When can the Supreme Court transfer suit under CPC? (3 Marks)
Ans:
Section 25 of CPC deals with power of the SC to order transfer of suit. SC may direct that any suit, appeal or other
proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in
any other State. However, this can be directed on the satisfaction of the court that an order is expedient for the ends
of justice. The power can be exercised on the application of a party and after notice to the parties and after hearing
such of them as desire to be heard. It can be exercised at any stage of the suit.
5. A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1,000 which he claims to set-off.
Whether the amount can be set-off? (4 Marks)
Ans:
Order 8 Rule 6 provides for the setoff. It provides for the following essentials of the set-off
- It is the suit for the recovery of money
- The amount is any ascertained sum of money
The amount is legally recoverable by defendant from the plaintiff 2P7U0P
- tr-2Q5M4Q3O
- It does not exceed the pecuniary limits of the jurisdiction of the Court
4Q3O2P7U0P
5Msame
- both parties fill the
tr-2Q character as they fill in the plaintiff's suit
- the setoff is raised before the first hearing of the suit

Since the two claims being both definite, pecuniary demands may be set-off.
Head Office: 127, Zone II, MP Nagar, Bhopal |+91-7676564400|www.toprankers.com Page 1 of 1
6. What is a foreign judgment? When is the judgment of the foreign court conclusive? (4 Marks)
Ans:
As per section 2(6) of CPC, a foreign judgment is a judgment made by a foreign court. Section 13 provides for the
situation when foreign judgment is not conclusive. A foreign judgment shall be conclusive as to any matter thereby
directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating
under the same title. However, it not conclusive in the following circumstances,
- where it has not been pronounced by a Court of competent jurisdiction
- where it has not been given on the merits of the case
- where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal
to recognize the law of India in cases in which such law is applicable
- where the proceedings in which the judgment was obtained are opposed to natural justice
- where it has been obtained by fraud
- where it sustains a claim founded on a breach of any law in force in India
In Satya v Teja, decree of divorce was obtained from fraud and hence, it was not conclusive.

7.
Ans:

c o m
What do you mean by exparte decree? What is the procedure if the plaintiff itself does not appear?

Ex parte decree is provided under Order 9 Rule 6 of CPC. Ex parte decree means the decree passed by the court
(6 Marks)

rs .
under order 9 rule 6 against the defendant even after giving an opportunity of being heard to defend as part of principle
of natural justice. Rule six of order nine provides that in case only plaintiff is present and defendant has not appear,
then the court should do the following:

-
hearing of the party may pass an ex parte decree.

k e
If summons were duly served, court may make an order to hear the suit ex parte and on the next date after

n
- If summons were not duly served or were duly served but does not provide due course of time to appear and
defend himself, then the court cannot pass the order for exparte hearing

r a
Ex parte decree is treated as decree on merit and it will be barred by Res Judicata as well in case all other conditions
are fulfilled.

p
8.
o
Rule 8 of Order 9 provides for the procedure where defendant only appears. Where the defendant appears and the

T
plaintiff does not appear on the date for hearing, the Court shall make an order that the suit be dismissed. Rule 9
provides that where a suit is dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect
of the same cause of action. But he may apply for an order to set the dismissal aside.

What are the essentials of Res Judicata?

tr-2E 5F4C3G2I7AWhether
0G Res Judicata apply on co-defendants? (6 Marks)

Ans:
Res Judicata is provided under section 11 of CPC. Res Judicata is based on the maxim, interest republica ut sit finus
litium which means that it is in the interest of the state that there is end to the litigation. Following are the essentials
of Res Judicata:
- Two suits
There are two suits. Previously instituted suit is the suit which is decided earlier irrespective of the date of the
filing.
- Same Parties
The parties in both the suits shall be same or the parties are the any person litigating under the same parties.
- Same character

The character of both the parties in both the suit is same.

- Heard and finally decided
The previous suit must be heard and finally decided by the court. Even a suit decreed ex parte is treated as heard
and finally decided.
- Matter directly and substantially in issue
3O2P7U0P
5M4Qrather
The matter in both the suit must be directly and substantially in issue
tr-2Q than collateral issue.
- Competencytr-of2Qthe court
5M4Q3O 2P 7U 0P
The court must be competent to decide the matter that was directly and substantially in issue in the previous suit.
Hence, abovementioned essentials shall be fulfilled in order to operate a particular suit as res judicata.

Head Office: 127, Zone II, MP Nagar, Bhopal |+91-7676564400|www.toprankers.com Page 1 of 1

 In Munni Bibi v Triloki Nath, court held that res judicata apply to co- defendant if
- There is a dispute between the co-defendant
- The dispute is necessary to be determined between such co-defendant in order to give relief.
- The dispute is hence, decided by the court.

9. What do you understand by cause of action? Wen is to suit shall include the whole claim? (6 Marks)

Ans:
Order 2 Rule 2 of CPC provides that if a plaintiff fails to sue for the whole of the claim which he is entitled to make in
respect of a cause of action in the first suit, then he is precluded from suing in a second suit in respect of the portion
so omitted. The object of the rule is clearly to avoid splitting up of claims and to prevent multiplicity of suits. Hence,
test for the application of order 2 rule 2 of CPC is the same cause of action.
In the case of Zalak Singh v Pramod Kumar, SC defined the cause of action as every fact which it would be necessary
for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise
every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved. cause

m
of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the

o
character of the relief prayed for by the plaintiff. It refers entirely to the grounds set out in the plaint as the cause of
action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour.

c
If the evidence to support the two claims is different, then the causes of action are also different.

rs .
Order II Rule 2(1) provides that a plaintiff is to include the whole of the claim, which he is entitled to make, in respect
of the cause of action. However, it is open to him to relinquish any portion of the claim. Order II Rule 2 provides for
the consequences of relinquishment of a part of a claim and also the consequences of omitting a part of the claim. It

suing on that portion so omitted or relinquished.

k e
declares that if a plaintiff omits to sue or relinquishes intentionally any portion of his claim, he shall be barred from

n
Order II Rule 2(3), however, deals with the effect of omission to sue for all or any of the reliefs in respect of the same
cause of action. The consequences of such omission will be to precluded plaintiff from suing for any relief which is so

10.

p a
omitted. The only exception is when he obtains leave of the Court.

r
What shall the amendment of pleading be allowed under CPC? (6 Marks)

Ans:

-
-
To
Pleadings are provided under order VI, VII and VIII of CPC. Order VI deals with general rules of pleading. Order VI
rule 17 deals with amendment of pleadings. It provides that
- At any stage
Pleading shall or may be amended
If it is necessary to determine
tr-2E5Freal
4C3Gmatter
2I7A0G in controversy

However proviso provides that after commencement of trial, pleading cannot be amended except when it was not
possible to do so even with the exercise of due diligence before the commencement of trial as amended in 2002.
In Clarapede Company and Association case court held that however late an amendment may be, the court should
be liberal in granting amendment.

In Revajitu Builders v Narayansamy 2016, SC, while reiterating in Chakeswari Construction v Manoharlal held that
following are the principles for allowing amendment of pleading:
- Is it necessary to determine real matter in controversy
- Weather allowing of amendment will cause irreparable injury to respondent
- Whether the amendment can be made before the application of amendment is filed.
- It should not allow amendment if it introduces new cause of action or changes nature of suit.
- Weather allowing amendment will cause prejudice to other party
In Venu Pahuja v. Renu Chaudhary, 2019, SC, discussed amendment of pleading and held that court has to draw a
balance and see whether it was an honest mistake or negligence of the party. In this case plaintiff institute a suit with
name of Plaintiff as a manager but later want to amend it and have name as A only in individual capacity. Trial court
rejected it as it was a mere mistake. 2P7U0P
tr-2Q5M4Q3O
In Leach and company
tr-2Q5M4Qv 3O
Jardine
2P7U0P Skinner, SC held that in case a limitation period is expired, the other party got the
vested right and thus, it should not allow to disturb the vested right of the parties.
Thus, above mentioned were principles that guide for allowing amendment of pleading under order VI R17 which is
developed through judicial precedent.

Head Office: 127, Zone II, MP Nagar, Bhopal |+91-7676564400|www.toprankers.com Page 1 of 1

11. Write a short note on representative suit. (6 Marks)

Ans:
A representative suit is the suit which is filed in the form of a representation or on behalf of some other persons. Order
1 Rule 8 provides for the representative suit.

The object of the representative suit is to avoid the practical difficulty when each individual bought action in the case
involving numerous persons based on a common question. It enables the single judicial decision making when a
common interest is involved for the large number of people. It hence saves the time and efforts by the court and
prevents the multiplicity of suit.

In T.N. Housing Board V. T.N. Ganapathy 1990, SC observed that the provisions of Order 1 of Rule 8 have been
included in the Code in the public interest so as to avoid multiplicity of litigation.

Order 1 Rule 1 provides for the following essentials for the representative suit:

m
- There are numerous person
- These numerous persons have the same interest in the suit
- There is no need to establish the same cause of action

c o
- Permission of the court has been obtained to sue on behalf of all the persons interested

.
- Notice to all the person represented in the suit is given at the plaintiff’s expense or by way of public advertisement

rs
in case it is impracticable to give notice to all the persons represented
- No part of the suit or claim may be abandoned or withdrawn unless the notice is given by the plaintiff at his
expense

at his expense

k e
- No agreement, compromise or satisfaction shall be recorded by the court unless the notice is given by the plaintiff

8 of the Code of Civil Procedure is mandatory.

r n
In Kalyan Singh v Choti 1989, SC observed that for a representative suit, the court's permission under Order 1 Rule

a
A decree passed in a representative suit shall be binding on all persons on whose behalf or for whose benefit, the suit

o p
is instituted or defended. Hence, it will operate as Res Judicata. If the permission of the court is not obtained, then
the decree will be binding only on the plaintiff.

T
Hence, representative suit enables the court to decide the matter involving common interest of numerous persons
and reduces the burden of the court.

tr-2E5F4C3G2I
7A 0G

2P7U0P
tr-2Q5M4Q3O
2P 7U0P
tr-2Q5M4Q3O

Head Office: 127, Zone II, MP Nagar, Bhopal |+91-7676564400|www.toprankers.com Page 1 of 1