Cpc Notes 2022

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Civil Procedure Code

Frequently Asked Questions on Civil Procedure Code
Q. 1 What do you understand by Civil Procedure Code ? Give brief history of Code of Civil
Procedure and briefly discuss some of the important changes made by Amendment Act No. 22 of
2001 in Civil Procedure Code.
Ans. Laws can be divided into (i) Substantive law or (ii) Adjective or Procedural Law. Substantive law
provides for Rights and Liabilities of the parties whereas Adjective or Procedure law prescribes the
practice, procedure for enforcement of those rights and liabilities. Indian Contract Act, Transfer of
Property Act, Industrial Dispute Act are examples of Substantive law while Indian Evidence Act, Indian
Limitation Act or Code of Civil Procedure are instances of procedural law. Main object of any
procedural law is to facilitate the court in enforcing the rights and liabilities of parties, in due
compliance of natural principles and established procedure.
Aim of Civil Procedure Code The aim of the procedural laws is to implement the substantive laws
effectively and, therefore, Civil Procedure Code has been enacted with the object to provide fair
justice without any delay. The ultimate aim of the Code is to provide simple and expeditious procedure
for doing justice between the parties. It has been framed to provide uniform procedure so as to avoid
diversity in the manner of dealing with cases before the courts.
Therefore, provisions of Code of Civil Procedure must be interpreted liberally so as to subserve and
advance the cause of justice. In State of Punjab v. Shamlal Murari, AIR 1976 SC 1177 Krishna Iyer
J. has observed -
"We must always remember that procedural law is not to be a tyrant but a servant, not an
obstruction but an aid to justice. It has been wisely observed that procedural prescriptions are
the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.
Where the non-compliance, though procedural, will thwart fair hearing or prejudice doing can be
corrected without injury to a just disposal of the case, we should not enthrone a regulatory
requirement into a dominant desideratum. After all, courts are to do justice, not to wreck this end
product on technicalities."
History of Code Before 1859 there was no uniform Code of Civil Procedure. There were different
systems of Civil Procedure in different parts of the country. First Uniform Code of Civil Procedure was
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enacted in year 1959. But that code was not made applicable to Supreme Court in the Presidency
Towns and to Presidency Small Cause Courts. Some amendments were made therein and the code
was applied to whole of British India, but there were many defects in it and therefore a new code was
enacted in 1877. Latter Law Commission in its various reports made many recommendations for fair
trial in due compliance of acceptance of principles of natural justice and for expediting the disposal of
suits and also avoiding undue complicated procedure in disposal of suit. Keeping in view the above
said broad principles, in the year 1908, present Code of Civil Procedure was enacted. Then in year
1976, some important amendments were made in the code which are following :-
(a) The doctrine of "res-judicata" was made more effective.
(b) The powers to transfer proceedings from one High Court to another was given to Supreme
Court.
(c) Freedom from attachment of portion of salary to all salaried employees is granted.
(d) The provision of giving notice under section 80 before institution of suit against the
Government or a Public Officer was made less stringent.
(e) The scope of Summary Trials was widened.
(f) Important changes were made to provide relief to poor section of the community.
Important Amendments of Act of 2002 Act No. 22 of 2002 has been passed for amendments of
Code of Civil Procedure so as to expedite the disposal of suits and to avoid time consuming
complicated procedural formalities. Some of the important amendments are :-
(i) Section 100-A has been added which provides that notwithstanding anything contained in any
Letters Patents for any High Court or in any instrument having force of law or any other law,
where any appeal from a original or appellate decree or order is heard and decided by single
Judge of a High Court no further appeal shall lie from judgment and decree of such single judge.
(ii) Section 102 has been amended and which has permitted the filing of second appeal if subject
matter of suit for recovery of money is not exceeding Rs. 2,500/-.
(iii) Amendment made in Order VII and it is made obligatory for defendant to present his written
statement within 30 days from date of service of summons to him. If he fails to do so, court may,
for reasons to be recorded, allow him to present written statement on any other date but not later
than 90 days from date of service of summons.
(iv) Amendment in Order V of Code is made and provisions of service of summon through duly
approved courier service or by fax message or electronic mail, are made.
(v) Amendment is made in Order VI Rule 17 and now no application for amendment of pleadings
shall be allowed after the trial has commenced unless court has came to conclusion that inspite
of due diligence, party could not have raised the matter before the commencement of trial.
(vi) Amendment is made in Order XVIII and provision has been made in Rule 4 for recording the
examination in chief of witnesses in a suit by affidavit, copies of which will be supplied to
opposite party.
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Q. 2 Distinguish between Decree and Order.
Ans. DECREE [Section 2(2)] Decree means formal expression of an adjudication which so far as
regards the court expressing it, conclusively determines the rights of parties with regard to all or any of
the matter in controversy in suit and may be either preliminary or final. It shall be deemed to include
the rejection of plaint and determination of any question within the Section 144 but shall not include :-
(a) any adjudication from which an appeal lies as an appeal from an Order.
(b) an order of dismissal for default
Explanation : Decree is preliminary when further proceeding have to be taken before the suit can be
completely disposed of. It is final when such adjudication completely disposes of the suit. It may be
partly preliminary and partly
ESSENTIAL ELEMENTS
(i) There must be adjudication.
(ii) Such adjudication must have been given in a suit.
(iii) It must have determined the rights of parties with regard to all or any of the matters in
controversy in suit.
(iv) Such determination must be of conclusive nature.
(v) There must be a formal expression of such adjudication.
CLASSES OF DECREE
Primarily there are two kinds of Decree :
(i) Preliminary Decree
(ii) Final Decree
PRELIMINARY DECREE :
Where an adjudication decides the rights of the parties with regard to all or any of matter in
controversy in suit but does not completely dispose of the suit. It is a preliminary decree. Explanation
added to Section 2(2) also says "Decree is preliminary when further proceedings have to be take
before the suit can be completely disposed of". CPC provides for passing preliminary decree in
following cases:
(1) Suit for possession and mesne profit (O. 20 R. 12)
(2) Administration Suit (O. 20 R. 13)
(3) Suit for Pre-emption (O. 20 R. 14)
(4) Suit for Dissolution of Partnership Firm (O. 20 R. 15)
(5) Suit for Accounts between Principal and Agent (O. 20 R. 16)
(6) Suit for Partition and Separate Possession (O. 20 R.18)
(7) Suit for foreclosure of Mortgage (O. 34 R. 2-3)
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(8) Suit for Sale of Mortgaged Property (O. 34 R. 4-5)

(9) Suit for Redemption of Mortgage (O. 34 R. 7-8)
Question whether decision amounts to preliminary decree or not is a great significance in view of
Section 97 CPC which provides:-
"Where any party aggrieved by Preliminary decree does not appeal from such decree he shall be
precluded from disputing its correctness in any appeal which may be preferred from final
decree."
FINAL DECREE A decree may be said to final in two ways:-
(i) When within prescribed period no appeal is filed against the decree or the matter has been
decided by decree of the highest court.
(ii) When the decree, so far as regards the court passing it completely disposes of the suit.
Normally "Final Decree" is construed which so far as the court passing it, finally dispose of the
controversy involved and the suit.
ORDER [Section 2(14)]Order means the formal expression of any decision of civil court which is not a
decree (Section 2(14)). Thus the adjudication of a court which is not a decree is an Order.
DECREE and ORDER : DISTINCTION
The adjudication of court of law may either be decree or Order : Fundamental distinction between two
are:-
(a) Decree can only be passed in a suit which commenced by presentation of plaint. An Order
can be passed in suit by presentation of plaint or may arise from proceeding commenced from
application.
(b) Decree is an adjudication conclusively determining the rights of parties with regard to all or
any of the matter in controversy. Order on the other hand, may or may not finally determine such
rights.
(c) Decree may be preliminary or final, but there cannot be preliminary order.
(d) Except in certain suits in which two decrees i.e. one preliminary and one final is passed, there
can be only one decree, but in suit or proceedings there can be number of orders.
(d) Every decree is appealable unless otherwise expressly provided but every order is not
appealable only those orders are appealable as specified in code.
Q. 3. What is the effect of reversal of the Preliminary decree on the final decree passed by the lower
court during the pendency of appeal against final decree.
Ans. "The effect of the reversal of the preliminary decree on the final decree passed by the lower
Court during the pendency of the appeal against the preliminary decree is that the final decree is
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superseded because the final decree is its nature dependent and subordinate, as it is a decree which
has been passed as a result of proceeding directed and controlled by the preliminary decree and
based thereon. Therefore, when a preliminary decree is set aside, the final decree is automatically
superseded, whether the appeal was brought before or after the passing of the final decree."
In Sital Parshad v. Kishori Lal, AIR 1967 SC 1236 it was observed by Supreme Court that since the
passing of preliminary decree is only a stage prior to the passing of final decree, if an appeal against a
preliminary decree succeeds, the final decree automatically falls to the ground for there is no
preliminary decree thereafter in support of it.
Q. 4. Are the following orders amount to "decree" within the meaning of Section 2(2) of Code :
(A) An order rejecting a memorandum of appeal insufficiently stamped;
(B) Memorandum of appeal which is dismissed as time barred;
(C) An order returning a memorandum of appeal for amendment;
(D) An order that a suit abates.
Ans. Section 2(2) of Code defines the term "Decree" as :

"Decree means the formal expression of an adjudication which so far as regards the court
expressing it, conclusively determines the right of the parties with regard to all or any of the
matters in controversy in the suit and may be either preliminary or final. It shall be deemed to
include the rejection of plaint and termination of any question within section 144, but shall not
include -
(a) Any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default."
Keeping in view the above definition let us assess whether following are decree or not
(A) An order rejecting a memorandum of appeal as insufficiently stamped is not decree because
said order is not appealable and fresh memorandum of appeal with requisite stamp may be filled.
(B) Dismissal of appeal being barred by limitation is decree as the court dismissing it, even on
the ground of limitation is finally disposing of the matter. Such order is appealable as decree.
(C) Order returning memorandum of appeal for amendment is not decree because such order
does not finally dispose off the matters so far as the court passing such order.
(D) An order that suit abates is a decree.
Q. 5 Can an appeal against final decree correctness of the preliminary decree be questioned, when
no appeal has been preferred by aggrieved party against the preliminary decree ?
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Ans. Section 97 of Code of Civil Procedure Code, give answer to this, which provides that -
"Whether any party aggrieved by a preliminary decree ......... does not appeal from such decree,
he shall be precluded from disputing it's correctness in any appeal which may be preferred from
the final decree."
So in view of Section 97, in an appeal against final decree, correctness of preliminary decree cannot
be challenged in the absence of any appeal against preliminary decree by aggrieved party."
Q. 6 Define and writ short notes on :
(A) Mesne Profits
(B) Foreign Judgment
(C) Judgement Debtor
(D) Decree holder
(E) Exparte decree
(F) Legal Representation
Ans. (A) Mesne Profits - Section 2(12) of Code says "Mesne Profits" of property 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.
"The right to possession is a sacred right guaranteed to all law-abiding citizens. When a person
is deprived of his possession he is not only entitled to recover possession but also damages for
wrongful possession by another. The mesne profits are a compensation, which is penal in nature.
The object of awarding a decree for mesne profits is to compensate the person who has been
kept out of possession and deprived of enjoyment of his property. Thus, `wrongful' possession of
the defendant is the essence of a claim for mense profits."
In Fateh Chand v. Bal Kishan Das, AIR 1963 SC 1405 it was observed that mesne profits being in
the nature of damages, no invariable rule governing their award and assessment in every case can be
laid down and court may mould it according to justice of the case.
However following principles would ordinarily guide a court for determining the amount of mesne
profits :-
(i) no profit by a person in wrongful possession;
(ii) restoration of status before dispossession of decree holder; &
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(iii) use to which the decree-holder would have put the property if he himself was in possession.
(B) Foreign Judgment - Section 2(5) of Code has defined "Foreign Court" as a court situated outside
India and not established or continued by the authority of the Central Government. Similarly section
2(6) say "Foreign Judgement" means a judgment of a foreign Court.
In Shitole v. Sanker Saran, AIR 1962 SC 1737. It was observed that crucial date to determine
whether the judgment is of a foreign court or not is the date of the judgment and not the date when it
is sought to be enforced or executed, so a judgment of a foreign court at the time of its
pronouncement would not cease to be foreign judgment by reason of the fact that subsequently the
foreign territory has become part of the Union of India.
(C) Judgment-debtor. - Section 2(10) of Code of Civil Procedure says -
`Judgment-debtor' means any person against whom a decree has been passed, or an order
capable of execution has been made. Where the decree is passed against a surety, he is a
judgment-debtor within the meaning of this section. On the other hand, a person who is a party to
the suit, but no decree has been passed against him, is not a "judgment-debtor."
(D) Decree holder. - Then Section 2(3) of Code defines "Decree-holder" as -
`Decree-holder' means any person in whose favour a decree has been passed or an order
capable of execution has been made. From this definition, it is clear that the decree-holder need
not necessarily be the plaintiff. A person who is not a party to the suit but in whose favour an
order capable of execution has been passed is also a decree-holder.
(E) Exparte Decree. - Order 9 Rule 6 of the Civil Procedure Code provides that where the plaintiff
appears and the defendant does not appear when the suit is called on for hearing, then if it is proved
that the summons was duly served the Court may make an order that the suit be heard exparte.
Èxparte' means, in the absence of the other party. Exparte decree can be passed only after the date
of the first hearing fixed in the summons, and not before that. The order to proceed exparte can also
be passed if the defendant, after putting his appearance after service of summons, remains absent on
the date of hearing subsequent fixed. Even if the court proceeds exparte, it has to act according to
law, and the plaintiff must prove his case.
(F) Legal Representative. - The term, `legal representative' has been defined in section 2(11) of the
Civil Procedure Code. According to it, `legal representative' means a person who in law represents
the estate of a deceased person, and includes any person who intermeddles with the estate of the
deceased and where a party sues or is sued in a representative character, the person on whom the
estate devolves on the death of the party so suing or sued.
The above definition is not exhaustive, but illustrative. In order to be a legal representative under
section 2(11), it is not necessary that a person should be a legal heir of a deceased person or that he
should have a beneficial interest in the estate.
Q. 7 What do you understand by the term "Jurisdiction of a Court"?
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Ans. Term jurisdiction may be defined to be the power or authority of a court to hear and determine a
cause, to adjudicate and exercise any judicial power in relation to it. So jurisdiction is meant the
authority which a court has, to decide matters that are litigated before it or the take cognizance of
matters presented in a formal way for its decision.
There is always a distinction between want of jurisdiction and irregular exercise of it. The defect of
jurisdiction goes to root of the matters. Such a basic and fundamental defect cannot be cured by
consent of parties. In short, a decree passed by a court without jurisdiction is a "Coram non judice". In
Kiran Singh v. Chaman Paswan, AIR 1951 SC 340 it was observed -
"It is a fundamental principle well established that a decree passed by a court without jurisdiction
is a nullity and that its invalidity could be set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of execution and even in collateral proceedings. A
defect of jurisdiction...strikes at the very authority of the court to pass any decree, and such a
defect cannot be cured even by consent of parties."
Kinds of Jurisdiction; Jurisdiction of a court may be classified into the following categories :-
(i) Territorial or local jurisdiction - Every court has its own local or territorial limits beyond
which it cannot exercise its jurisdiction. These limits are fixed by the Government. The District
Judge has to exercise jurisdiction within his district and not outside it. The High Court has
jurisdiction over the territory of the State within which it is situate and not beyond it. Again, a
court has no jurisdiction to try a suit for immovable property situated beyond its local limits.
(ii) Pecuniary jurisdiction - Section 6 of Code provides that a court will have jurisdiction only
over those suits, the amount or value of the subject-matter of which does not exceed the
pecuniary limits of its jurisdiction. Some courts have unlimited pecuniary jurisdiction, e.g. High
Courts and District Courts have no pecuniary limitations. But there are other courts having
jurisdiction to try suits up to a particular amount of subject matter.
(iii) Jurisdiction over the subject-matter - Different types of courts have been allotted different
type of work by different statutes. For example, a small cause court can try only certain suits,
such as money suit, based on an oral loan or a bond or promissory note, a suit for price of work
done, a suit for recovery of price of goods supplied, but it has no jurisdiction to try the suits for
specific performance of contracts, for injunction, for a dissolution of partnership, or suit for
partition of immovable property. Similarly, only District Judge has the jurisdiction in respect of
testamentary matters, such as granting probate or letter of administration, and divorce cases.
(iv) Original or Appellate Jurisdiction - The jurisdiction of a Court may be original or appellate.
For example, the jurisdiction of the court of munsif and small cause court is only original, while
the court of Civil Judge, District Judge, and High Court also exercise appellate jurisdiction. In the
exercise of its original jurisdiction, a court entertains original suits, while in the exercise of its
appellate jurisdiction it entertains appeals.
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Q. 8 Discuss with the help of decided cases that every kind of dispute is not entertainable by civil
court.
Or
What is a suit of civil nature ? Give few examples.
Ans. Section 9 of Civil Procedure Code confers the power upon the civil court jurisdiction to try suit of
civil nature. Section 9 provides : "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."
SUIT OF CIVIL NATURE The word "civil" has not been defined in the Code. But according to the
dictionary meaning, it pertains to private rights and remedies of a citizen as distinguished from
criminal, political, etc. Thus, a suit is of civil nature if the principal question therein relates to the
determination of a civil right and enforcement thereof. It is not the status of the parties to the suit, but
the subject-matter of it which determines whether or not the suit is one of a civil nature. The
expression "suit of civil nature" will cover private rights and obligations of a citizen. Political and
religious questions are not covered by that expression. A suit in which principal question relates to
caste or religion is not a suit of a civil nature. But if the principal question in the suit is of a civil nature
(the right to property or to an office) and the adjudication incidentally involves the determination
relating to a caste 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 1 to Section 9).
Explanation II, added by the Amendment Act, 1976, further provides that it is immaterial whether or
not any fees are attached to the office referred to in Explanation I or whether or not such office is
attached to a particular place. Thus in order to fall within the purview of the term 'of civil nature ' the
suit must be for the enforcement of private rights and obligations of a citizen and not of matters which
are purely social.
In view of Section 9 of the Code of Civil Procedure, the enquiry of the court should be confined to the
dispute of a civil nature. Any dispute which is not of a civil nature should be excluded from
consideration. The dispute as to right of worship is one of a civil nature within the meaning of Section
9 of the Code and a suit is maintainable for the vindication or determination of such a right (District
Council of United Basel Mission Church and others v. Salavador Nicholas Mathlas and others,
(1988) 2 SCC 31).
The right to remain in the community or to exercise the rights and privileges of the members of the
community is a civil one (Mansoor Ali v. Taiyabali Mohammad Ali Dawoodi Bohra, 157 IC 302).
A suit to establish a person's right to enter a religious place and a suit to restrain the defendant from
entering a place of worship are both entertainable, being suits of a civil nature. It is a civil right of
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every citizen that he should be entitled to carry on his worship in any method he likes so long as he
does not, by his performances, affect others injuriously. Where the plaintiffs claimed to be entitled to
enter the temple bareheaded and worship, it was held that the civil court has jurisdiction to entertain it
(Ratan Singh v. Bali Ram, AIR 1952 Punjab 163).
The right to take out a procession through the public streets is a civil right, and a suit will lie to enforce
such a right in a civil court (Sanganbasaswami Guru v. Baburao Ganesh Kulkarni, ILR (1946)
Bom. 437).
The right to officiate as a priest or as a guru simpliciter is not a civil right and no suit lies to enforce the
same. But where it amounts to an office attached to an institution such as a temple, it has been
recognised as a civil right. The fact that there are emoluments of a non-gratuitous character payable
out of the funds of the institution is relevant, though the absence thereof is not decisive. There may be
offices without emoluments at all. The crucial test in determining whether a claim to purohitship or
priesthood of a temple is a claim to an office or not is whether there are duties attached to purohitship
which are enforceable by law, custom or usage, whether by deprivation or other temporal sanction
(Chunnu Dutt Vyas v. Babu Nandan, AIR 32 All 527).
COGNIZANCE NOT BARRED
Section 9 C.P.C. provides that Civil Court has jurisdiction to entertain suit of civil nature unless its
cognizance is barred either expressly or impliedly.
Cognizance Expressly Barred
A suit is said to be expressly barred when it is barred by any statute for the time being in force.
Cognizance Impliedly Barred
A suit is said to be impliedly barred when it is barred by general principles of Law. For Example where
a specific remedy is given by a Statute, it thereby deprive the person who insists upon a remedy in
any other form than that given by the Statute.
Q. 9 Whether following suits are cognizable by civil court :-
(A) Suit for dismissal from post of honorary secretary of an association.
(B) Suit for exclusion of a member from cast.
(C) Suit to set aside the election of directors.
(D) Proceedings for dissolution of Muslim marriage.
(E) Claim by Swami to be carried out in palanquin on high road of Town on a occasion.
(F) Suit relating to costs property.
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Ans. 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.
Explanation I. - A suit in which the right to property or to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of question as to religious rites or
ceremonies.
Explanation II. - For the purpose of this section, it is immaterial whether or not any fees are attached
to the office referred to in Explanation I or whether or not such office is attached to a particular place.
So in view of Section 9 of Code :-
(A) Suit for dismissal from post of honourary secretary of an association is not suit of civil nature
within the meaning of Section 9.
(B) Suit for exclusion of a member from a caste is a one cognizable by civil court because
exclusion of some one from his caste, affects his legal right.
(C) Suit to set aside the election of director's is suit of civil nature because in such suit, legal right
of some one for being appointed as "Directors' is challenged.
(D) Proceeding for dissolution of Muslim marriage is purely a suit of civil nature.
(E) Claim of any Swami to be carried out in palanquin is not a suit of civil nature, because, it
does not involve any legal right of Swami but claim is mark of honour.
(F) Suit for inspection of accounts of caste property is a civil nature, as every member of cast is
entitled to inspect account books at all reasonable times on demand.
Q. 10 Does the Code of Civil Procedure make any provision preventing courts of concurrent
jurisdiction from trying at the same time two parallel suits in respect of same cause of action ? If so
what ? Discuss.
Ans. Section 10 of the Code deals with the stay of civil suits. It reads:
"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 having jurisdiction to
grant the relief claimed, or in any court beyond the limits of India established or
constituted by the Central Government and having like jurisdiction, or before the Supreme
Court."
The object of the Rule contained in Section 10 is to prevent the courts of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same cause
of action, the same subject-matter and the same relief. The policy of the law is to confine the plaintiff
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to one litigation, thus obviating the possibility of two contradictory verdicts by one and the same court
in respect of the same relief.
In Shetty v. Giridhar, AIR 1982 SC 83 it was held :
For the application of this Section , the following conditions must be satisfied :-
(1) There must be two suits, one previously instituted and the other subsequently instituted.
(2) The matter in issue in the subsequent suit must be directly and substantially in issue in the
previous suit.
(3) Both the suits must be between the same parties or their representatives.
(4) The previously instituted suit must be pending in the same court in which the subsequent suit is
brought or in any other court in India or in any court beyond the limits of India established or continued
by the Central Government or before the Supreme Court.
(5) The court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in
the subsequent suit.
(6) Such parties must be litigating under the same title in both the suits.
Q. 11 A suit for partition of premises has filled by one of the heirs. Subsequently another suit for
eviction of tenant from there premises was filled by another heir ? Can the subsequent suit be stayed
in view of Section 10 of C.P.C.
Ans. Section 10 of Civil Procedure Code deals with doctrine of "Sub judice' Section 10 says -
"No Court shall proceed with the trial of any suit in which the matter in issue is also directly the
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 having jurisdiction to grant the relief claimed, or in any
Court beyond the limits of India established or continued by the central Government and having
like jurisdiction, or before the Supreme Court."
So what is important to invock Section 10 is that subsequently filled suit should be for same cause of
action and between same parties and matter in issue in previous and subsequent suits must be
directly and substantially the same. Where the cause of action and reliefs are different, it cannot be
said that the matter in issue between the two suits is directly and substantially the same. Identity of
one or two issues is not enough. What has to be seen is whether the filed of controversy is the same
and whether the final decision in the previous suit is such as would operate as res judicata in the
subsequent suit. Where one of the heirs to the premises filed a suit for declaration of his share and of
the other heirs impleaded as defendants and for partition and the subsequent suit was filed by another
heirs for eviction of the tenant from those premises and the plaintiff in the first suit also being heirs
was impleaded as pro forma defendant, the controversy in the two suits cannot be said to be the
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same as the controversy in the first suit relates to the share of the parties in the premises and the
subsequent suit for eviction has nothing to do with the same. Therefore the subsequent eviction suit
need not be stayed under Section 10 C.P.C.
Q. 12 B residing in Calcutta has an agent at Calicut employed to sell his goods there. A sues B in
Calicut claiming a balance due upon an account in respect of dealing between him and B. During the
pendency of the suit in Calicut Court competent to grant relief B institute a suit against A in Calcutta
for an account and damages caused by A's alleged negligence. Can the Calcutta Court proceed with
trial of B's suit?
Ans. Rule of "Res Sub Judice" as embodied in Section 10 of C.P.C. says "no court shall proceed with
trial of any suit in which the matter in issue is also directly and substantially in issue in previously
instituted case between same parties or parties under whom they or any of them claim, litigating under
same title, pending in the same court or any other court competent to grant relief claimed or any court
beyond limits of India established or constituted by Central Govt. or before Supreme Court.
So when a suit between same parties is already pending in a competent court and question involved
therein, is again directly and substantially raised in other suit instituted subsequently, then such
subsequent suit will not be allowed to proceed in view of provision of Section 10 C.P.C.
In case in hand when matter between A and B is already pending in Calicut Court which is competent
court then alike matter in suit subsequently filed by B at Calcutta shall not be proceed.
Q. 13 What is the scope and object of doctrine of res judicata ? Discuss the conditions necessary for
its application in legal proceedings.
Ans. Section 11 of Civil Procedure Code embodies the doctrine of res judicata which is based on the
need of giving finality to judicial decisions. It is a Rule of conclusiveness of judgment as to the points
decided either of facts or of law or fact and law, in every subsequent suit between the same parties. It
simply enacts that once a matter is finally decided by a competent court, no party can be permitted to
reopen it in subsequent litigation. The doctrine of res judicata is based on three maxims:-
(1) nemo debt lis vexari pro uno et eaden causa
: No man should be vexed twice for same cause.
(2) intrest republica ut sit finis litium
: It is in the interest of the state that there should be an end to a litigation.
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(3) Res Judicata pro veritate occipiture

: a judicial decision must be accepted as correct.
Section 11 C.P.C. provide as under :-
"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".
In Daryao v. State of U.P., AIR 1961 SC 1457 Supreme Court observed :- The binding character of
judgment pronounced by court of competent jurisdiction is itself an essential part of rule of law and
rule of law obviously is the basis of administration of justice on which the Constitution lays so much
emphasis."
In Sheodan Singh v. Daryao Kunwar AIR 1966 SC 1332 it was held that "It is not every matter
decided in a former suit that will operate as `res judicata' in a subsequent suit. To constitute a matter
res judicata under section 11 the following conditions must be satisfied :-
(a) The matter directly and substantially in issue in the subsequent suit or issue must be the
same matter which was directly and substantially in issue either actually or constructively in the
former suit.
(b) The former suit must have been a suit between the same parties or between parties under
whom they or any of them claim.
(c) Such parties must have been litigating under the same title in the former suit.
(d) The court which decided the former suit must be a court competent to try the subsequent suit
or the suit in which such issue is subsequently raised (Explanations II and VII are to be read
with this condition).
(d) The matter directly and substantially in issue in the subsequent suit must have been heard
and finally decided by the court in former suit.
Q. 14 (a) Discuss the doctrine of constructive res judicata.
(b) A sues B to recover certain property belonging to the estate of C, alleging that his (A's) father
had been adopted by C's brother D, to whom the property descended on C's death. The suit is
dismissed on the ground that the adoption is not proved. A then sues B to recover the same property
claiming it as C's Bandhu. Is the suit barred as res judicata ?
(c) A, alleging that he is the adopted son of X sues B to recover certain property granted to him by X
under a deed and forming part of the estate of X. The court finds that A is not the adopted son of X,
but that he is entitled to the property under the deed and a decree is passed in favour of A. Will the
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finding that A is not the adopted son of X operate as res judicata in a subsequent suit between A and
B in which the question of adoption is again put in issue ?
Ans. (a) Rule of res judicata as contemplated by Section 11 applies only when a matter directly and
substantially in issue in a suit has also been directly and substantially in issue in a former suit between
same parties and such matter has been heard and finally decided in that former suit by competent
court. A matter directly and substantially in issue may be so either actually or constructively. A matter
is actually in issue when it is alleged by one party and denied or admitted by the other (Explanation
III). It is constructively in issue when it might and ought to have been made a ground of attack or
defence in the former suit. Explanation IV to Section 11 by a deeming provision lays down that any
matter which might and ought to have been made a ground of defence or attack in the former suit, but
which has not been made a ground of attack or defence, shall be deemed to have been a matter
directly and substantially in issue in such suit.
In State of U.P. v. Nawab Hussain, A.I.R. 1977 SC 1681 A, a sub-inspector of police, was dismissed
from service by D.I.G. He challenged the order of dismissal by filing a writ petition in the High Court on
the ground that he was not afforded reasonable opportunity of being heard before passing the Order.
The contention was, however, negatived and the petition was dismissed. He then filed a suit and
raised an additional ground that since he was appointed by I.G.P., D.I.G. had no power to dismiss him.
The State contended that the suit was barred by constructive res judicata. The trial court, the first
appellate court as well as the High Court held that the suit was not barred by res judicata. Allowing the
appeal filed by the State, the Supreme Court held that the suit was barred by constructive res judicata
as the plea was within the knowledge of the plaintiff and could well have been taken in earlier writ
petition. It was observed by Supreme Court :-
"When any matter which might and ought to have been made a ground of defence or attack in a
former proceeding but was not so made, then such a matter in the eye of law, to avoid multiplicity
of litigation and to bring about finality in it, is deemed to have been constructively in issue and,
therefore, is taken as decided."
Ans. (b) Rule of Constructive Res Judicata as embodied in Explanation IV to Section 11 C.P.C. is an
artificial form of Res Judicata and provides that if a plea should have been taken by a party in a
proceeding between him and his opponent, but was not actually taken in that former suit, he should
not be permitted to take that plea against the same party in a subsequent proceeding with reference
to same subject matter.
Explanation IV to Section 11 C.P.C. provides "Any matter which might or ought to have been
made a ground of defence or attack in the former suit, but which has not been made ground of
attack or defence shall be deemed to have been matter directly and substantially in issue in
such suit."
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Coming now to case in hand, when A filed earlier suit against B, it was open to A to take the plea of
C's Bandhu to recover property, but A did not take that plea and only made his claim on the basis of
alleged adoption of his father by D who was C's brother. A's earlier suit was dismissed and now A's
second suit is barred by constructive res judicata.
Ans. (c) One of the requirements for application of Rule of res judicata as embodied in Section 11
C.P.C. is that Judgement of Court must be on a matter which was directly and substantially in issue
between parties. When a court of competent jurisdiction hears and finally decides any matter which
was directly and substantially in issue between parties it will only operate res judicata in any
subsequent suit between same parties if that matter is again directly and substantially in issue in such
subsequent suit. The words "directly and substantially in issue" have been used in Section 11 in
contradiction to words "collaterally and incidentally in issue". Decisions on the matters collateral and
incidental to main issues in the case will not operate as res judicata. A collateral or incidental issue
means an issue which is ancillary to direct and substantive issue.
Recently Supreme Court in Madhvi Amma Bhawani Amma and others v. Kunjikutti Pillai
Meenakshi Pillai and others, AIR 2000 SC 2301 observed :-
"In order to apply the general principle of res judicata court must find whether an issue in
subsequent suit was directly and substantially in issue in earlier suit or proceeding, was it
between the same parties and was it decided by such court. Thus there should be an issue
raised and decided not merely any finding on any incidental question for reaching such decision
so if no such issue is raised and if on any other issue if incidentally any finding is recorded, it
would not come within the periphery of principle of res judicata."
Moreover, a finding on an issue cannot be said to be necessary to the decision of a suit unless the
decision was based upon that finding. In the case in hand, the finding that A is not the adopted son of
X will not operate as res judicata in a subsequent suit between A and B in which the question of
adoption is again put in issue, for the decree being in favour of A, A could not have appealed from that
finding. The Court having found that A was entitled to the property under the deed, the finding on the
question of adoption was not necessary to the determination of the suit. The decree, far from being
based on the finding as to adoption, was made in spite of it.
Q. 15 Explain the significance of "the matter collaterally or incidentally in issue" determining the
principles of res judicata.
Ans. Matter collaterally or incidentally in issue. - The expression "collaterally or incidentally in

issue" implies that there is another matter, which is directly and substantially in issue and the matter
collaterally and incidentally is only incidental to the direct and substantial issue. Collateral and
incidental issues are the auxiliary issues, while direct and substantial issues are principal issues. A
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collateral or incidental issue is an issue in respect of which no relief is claimed but which is put in
issue to enable the Court to adjudicate upon the matter which is directly and substantially is issue. It is
only those matters which are directly and substantially in issue that constitute res judicata and not the
matters which are in issue only collaterally or incidentally. The matter could be directly and
substantially in issue if the issue was decided and judgment was, in fact, based upon that decision
otherwise it would be a matter collaterally or incidentally in issue. An illustration will further elucidate
the point. A sues B for rent for the year 1975 and B claims abatement of rent on the ground that the
area is greater that shown in the lease. The finding as to the excess area is not res judicata for this
was not the matter directly and substantially in issue but only anciallry to the direct and substantial
issue, viz., whether the area is equal to that shown in the lease or less.
Q. 16 Res judicata is sometimes treated as part of the doctrine of estoppel but the two are
essentially different. Explain and point out the difference between the two.
Ans. The doctrine of res judicata is often treated as a branch of law of estoppel. Res judicata is really
estoppel by verdict or estoppel by judgment (record). The rule of constructive res judicata is nothing
else but a rule of estoppel. Even then, the doctrine of res judicata differs in essential particulars from
the doctrine of estoppel.
(1) the rule of res judicata is based on public policy, viz. that there should be an end to litigation.
Estoppel, on the other hand, proceeds upon the doctrine of equity, that he who, by his conduct, has
induced another to alter his position to his disadvantage, cannot turn round and take advantage of
such alteration of the other's position.
(2) Res judicata ousts the jurisdiction of the Court to try the case and precludes an enquiry in limine
(at the threshold); estoppel is only a rule of evidence and shuts the mouth of a party.
(3) Res judicata results from a decision of the Court, whereas estoppel flows from the acts of parties.
(4) The rule of res judicata presumes conclusively the truth of the decision in the former suit, while the
rule of estoppel prevents a party from denying what he has once called the truth.
(5) Res judicata prohibits a man averring the same thing twice in successive litigations, while estoppel
prevents him from saying one thing at one time and the opposite at another.
Q. 17 (a) Nine Akali Sikhs sue for removal of Mahant of a religious institution. The suit is dismissed
on the ground that the institution is Hindu Dera and not a Sikh Gurudwara. Subsequently and after the
passing of Sikh Gurudwara Act 1925, sixty four sikhs sue for declaration that institution is Sikh
Gurudwara. Is the suit is barred by Res Judicata ?
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(b) A a Hindu dies leaving widow and brother B. The widow sues B for recovery of certain property
alleging that it was a self acquired property of her husband and that a will alleged to have been
executed by her husband and relied upon by B was a forgery. B alleges that the property was joint
family property and that on the death of A he became entitled thereto by right of survivorship, but he
does not claim any title to the property under the will. The court finds that the property was self
acquired property of A and decrees the widow's claim. Subsequently B sues the widow to recover
same property from her now claiming the same as devisee under A's will. Is the suit barred by res
judicata ?
Ans. (a) For the application of Rule of Res Judicata as enshrined under section 11 of C.P.C., one of
the conditions is that former suit must be between the same parties or parties under whom they claim
litigating under same title as in subsequent suit. However Explanation VI of Section 11 provides
`where persons litigate bona fide in respect of public right or a private right claimed in common for
themselves and others, all persons interested in such right shall, for the purpose this section, be
deemed to claim under the person so litigating."
So Explanation VI to Section 11 deals with Representative suits i.e. suits instituted by or against a
person to his representative as distinguished from individual capacity. Thus where a representative
suit is brought under section 92 C.P.C. and decree is passed in such suit, law assumes that all
persons who have same interest as plaintiff in representative suit were represented by said plaintiffs
and therefore are constructively barred by res judicata from reagitating the matter directly and
substantially in issue in former suit.
In Forward Construction Co. v. Probhat Mandal, AIR 1986 SC 391, it was held that
(i) there must be a right claimed by one or more persons in common for themselves and others
not expressly named in the suit
(ii) Parties not expressly named in suit must be instructed in such right.
(iii) Litigation must have been conducted bona fide and on behalf of all parties interested and
(iv) if suit is under Order 1 Rule 8 all conditions of such provision must have been strictly
complied with. It is only then that decision may operate as res judicata.
But where a party claims right for himself alone which happens to be common to him and other, then it
cannot be said that he was litigating on behalf of other and Explanation VI of Section 11 C.P.C. does
not apply."
In the case in hand, earlier suit was filed by nine Akali Sikhs for removal of Mahant of Religious
institution. These Akali Sikhs were claiming in suit not as Representatives for all sikhs, but they were
having their individual claim in that suit. Therefore decision in the former suit can not operate as res
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judicata in subsequent suit which was filed by sixty four sikhs after passing of Sikh Gurudwara Act,
1925.
(b) Rule of Res Judicata applies in respect of only those matters which were directly and substantially
in issue in former suit and which were heard and finally decided in that suit by court, and are directly
and substantially in issue in subsequent suit, between same parties. Explanation III to Section 11
says all those matters which have been alleged by one party and either denied or admitted by the
other (Expressly or Impliedly) are deemed to be directly and substantially in issue, within the meaning
of Section 11 C.P.C.
Explanation IV of Section 11 C.P.C. provides "Any matter which might or ought to have been
made ground of defence or attack in such former suit but which has not been made ground of
attack or defence, shall be deemed to have been matter directly and substantially in issue in
such suit."
So Explanation IV to Section 11 provides for Rule of "Constructive Res Judicata" and provide if a
plea could have been taken by a party in proceedings between him and his opponent, he could not be
permitted to take that plea against the same party in a subsequent suit with reference to the same
subject matter.
In State of U.P. v. Nawab Hussain, AIR 1977 SC 1681 Supreme Court observed:-"When any matter
which might and ought to have been made a ground of defence or attack in a former
proceeding but was not so made then such a matter in the eye of law, to avoid multiplicity of
litigation and to bring about finality in it is deemed to have been constructively in issue and
therefore, is taken as decided."
Coming now to case in hand, when widow of A filed suit against B for recovery of property on the
ground of Will allegedly executed by A and on the ground that suit property was A's self acquired
property, B contested that suit only on the ground that suit property was joint property and not A's self
acquired property. B in that suit could have taken the defence for which he filed second suit in
reference to same property and against same party i.e. widow of A. Therefore bar of constructive res
judicata will apply in respect of suit filed by B for recovery of property on the ground of A's will.
Q. 18 (a) What is prematrue discovery ?
(b) What is the penalty for non-compliance by a party with the order of the court for discovery of
document ?
Ans. (a) Premature discovery. : Rule 20 - The court is empowered to postpone a premature
discovery or inspection. A discovery is premature when the right to discovery depends upon the
determination of any issue or question in dispute or for any other reason it is desirable that any issue
or question in dispute in suit should be determined before deciding upon the right to the discovery. In
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such a case, the Court may order that issue or question to be determined first and reserve the
question as to the discovery thereafter. The rule, however, does not apply where discovery is
necessary for the determination of such issue or question.
(b) Non-compliance with order : Rule 21 - Where any party fails to comply with any order to answer
interrogatories or for discovery or production of documents, if such party happens to be a plaintiff, his
suit may be dismissed for want of prosecution, and if he happens to be a defendant his defence will
be struck off and will be placed in the same position as if he had not defendant. Such order, however,
can be passed only after giving notice and a reasonable opportunity of being heard to the plaintiff or
the defendant as the case may be. If the suit of the plaintiff is dismissed on this ground, he cannot file
a fresh suit on the same cause of action.
In Babber Sewing Machine Co. Triloki Nath, AIR 1978 SC 1436 The court ordered the defendant to
produce certain documents. The defendant did not comply with that order and his defence was,
therefore, struck off. At the trial, he was not allowed to cross-examine the witnesses of the plaintiff.
The defendant challenged that action.
Setting aside the decision, the Supreme Court held that the stringent provisions of Order 11, Rule 21
should not be lightly invoked and must be applied only in extreme cases as a last resort.
Q. 19 Describe the procedure you will adopt in the case of discovery and inspection of documents in
possession of the opposite party.
Ans. Procedure in case of discovery and inspection of documents. - Rule 12 of Order 11

provides that any party may, without filling any affidavit, apply to the court for an order directing any
other party to any suit to make discovery on oath of the documents which are in his possession or
power, relating to any matter in question therein. An application will, therefore, have to be made for
discovery of documents in possession of the opposite party in terms of Rule 12, Order 11, C.P.C.
The general rules as to discovery of documents may be summarised as under :
(1) Any party to a suit may apply to the court for an order directing any other party to make
discovery on oath of the documents which are or have been in possession or power, relating to
any matter in question in the suit.
(2) The court may either refuse or adjourn such application if satisfied that such discovery is not
necessary or not necessary at that stage of the suit or make such order as it thinks fit.
(3) The court may exercise this power at any stage, either of its own motion or on an application
of any party and subject to such conditions and limitations as may be prescribed by it.
(4) Generally, no order of discovery, inspection or production of documents will be passed by the
court on the application of the plaintiff until the written statement is filed by the defendant or the
time to file it has expired.
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(5) Discovery cannot be ordered by the court if it is of the opinion that it is not necessary either
for the fair disposal of the suit or for saving costs.
(6) A party against whom an order for discovery of documents has been made by the court is, as
a general rule, bound to produce all the documents in his possession or power. However, if such
party considers that he is entitled to legal protection in respect of a particular document which he
has been ordered to produce by the court, he is at liberty to take such objection.
(7) When such privilege is claimed for any document, the court will inspect such document for
the purpose of deciding the validity of the claim of privilege, unless the document relates to
matters of Stage.
Q. 20 What do you understand by `Foreign Judgment' ? In what manner may a decree of foreign
court be executed in India ?
Ans. Section 2(6) C.P.C. says `Foreign Judgment' means judgment of foreign court.
"Foreign court" means a court situated outside India and not established or continued by the authority
of Central Govt.
BINDING NATURE OF FOREIGN JUDGEMENT ( Section 13)
Section 13 provides "foreign judgement" 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 except:
1. Where it has not been pronounced by court of competent jurisdiction.
2. Where it has not been given on merits of case.
3. Where it appears on the face of proceedings to be founded on incorrect view of International
Law or refusal of recognised principle of law in India.
4. Where the proceedings in which judgment was obtained are opposed to natural justice.
5. Where it has been obtained by fraud.
6. Where it sustains a claim founded on breach of any law in force in India.
A combined reading of Sections 43 to 44-A shows that the Indian courts have power to execute the
decrees passed by
(1) Indian courts to which the provisions of the Code do not apply;
(2) the courts situate outside India which are established by the authority of the Central
Government;
(3) revenue courts in India to which the provisions of the Code do not apply; and
(4) superior courts of any reciprocating territory.
In Sheikh Ali v. Sheikh Mohd. AIR 1967 Madras 45(a) it was held :
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"The jurisdiction of district court in this country to execute foreign judgment arises from and is
exercisable by the filing of a certified copy of foreign decree or judgement. It is only thereafter
and never until then the procedural laws as to lex fori will be attracted to execution. The
Limitation Act can apply possibly to such execution only after filing a certified copy of the foreign
decree or judgment as required by Section 44-A(1) of Civil Procedure Code.
In M/s International Woollen Mills v. M/s Standard Wools (U.K.), AIR 2001 SC 2134, it was
observed section 44-A C.P.C. says where a certified copy of decree of any superior court of any
reciprocating territory has been filed in District Court along with certificate from such superior Court
stating the extent if any to which the decree had been satisfied or adjudicated, decree may be
executed in India as if it had been passed in India. Court observed regarding section 13(b) C.P.C. that
it can not be said that expression "Foreign Judgment on merit" implies that it must have been passed
after contest and after evidence had been let in from both the side. An Ex parte foreign decree and
judgment in favour of plaintiff may deemed to be judgment given on meriet if some evidence is
adduced on behalf of plaintiff and judgment is based on consideration of that evidence."
Q. 21 How a suit is to be instituted ? What are the rules regarding institution of suits ?
Ans. A suit is to be instituted by presentation of a plaint or in any prescribed manner. Sections 15 to

20 of Code of Civil Procedure regulate the forum for the institution of suits. Section 15 of Code says -
"Every suit shall be instituted in the court of the Lowest grade competent to try it."
So section 15 refers to the pecuniary jurisdiction of the Court. Underlying object of Section 15 is to see
that court of higher grade may not be over burdened with suits and to ensure that justice may be
provided at the door step of litigants.
Suits to be instituted where subject matter situate Section 16 of the Civil Procedure Code
provides that, "subject to the pecuniary or other limitations prescribed by any law, suits regarding
immovable property are to be instituted in court within whose local jurisdiction the property is situate".
However, it has also been provided in its proviso that a suit to obtain 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, be instituted either in the court
within the local limits of whose jurisdiction the property is situate, or in the court within the local limits
of whose jurisdiction the defendant actually resides or carries on business or personally works for
gain.
Suits for Immovable property situate within jurisdiction of different Courts. Section 17 of the
Civil Procedure Code provides that where a suit is to obtain relief respecting or compensation for
wrong to 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,
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provides that in respect of the value of the subject- matter of the suit, the entire claim is cognizable by
such court.
Place of institution of suit where local limits of jurisdiction of courts are uncertain. Section 18
of the Code of Civil Procedure provides that where it is alleged to be uncertain within the local limits of
jurisdiction of which of two or more courts, any immovable property is situate, any one of those courts
if satisfied that there is ground for the alleged uncertainly, record a statement to that effect and
thereupon proceed to entertain and dispose of any suit relating to that property, and its decree in the
suit shall have the same effect as if the property were situate within the local limits of its jurisdiction,
provided that the suit is one with respect to which the court is competent as regards the nature and
value of the suit to exercise jurisdiction.
Sub-section (2) of section 18 C.P.C. further provides that where a statement has not been recorded
under sub-section (1) and an objection is taken before an appellate or revisional Court that a decree
or order in a suit relating to such property was made by a court not having jurisdiction where the
property is situate, the appellate or revisional court shall not allow the objection unless in its opinion
there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the court
having jurisdiction with respect thereto and there has been a consequent failure of justice.
Suits for Compensation for wrongs to person or movables. Section 19 of the Code of Civil
Procedure provides that where a suit is for compensation for wrong done to the person or to movable
property, 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, the suit may be instituted at the option of the plaintiff in either of the said courts.
Other suits to be instituted where defendant resides or cause of action arises. Section 20 of the
Code of Civil Procedure provides that subject to the aforesaid rules, every other suit shall be instituted
in a court within the local limits of jurisdiction -
(i) where the cause of action, wholly or partly, arises; or
(ii) where the defendant resides, or carries on business or personally works for gain; or
(iii) where there are two or more defendants, any of them resides or carries on business or
personally works for gain, provided that in such case (a) either the leave of the court is obtained,
or (b) the defendants who do not reside or carry on business or personally work for gain at that
place acquiesce (agree to) in such institution.
Explanation - A corporation shall be deemed to carry on business at its sole or principal office in India,
in respect of any cause of action arising at any place where it has also a subordinate office, at such
place.
Q. 22 Plaintiff a resident of Faridabad has filed a suit in Delhi Courts against the defendant, a
resident of Delhi for declaration that he has half share in the house situated in Kanpur and in the sum
of Rs. 50,000 lying deposited in a bank in Delhi and that defendant has wrongfully got the house
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registered in his own name and is also not admitting the claim of plaintiff in the amount. The defendant
has contested the suit on the ground that Delhi Courts have no jurisdiction to try the suit. How will you
decide ?
Ans. Sections 15 to 20 of Civil Procedure Code regulate the forum for the institution of suits. Section
16 of C.P.C. is relevant here which provide :-
"Subject to pecuniary or other limitation prescribed by any law, suits -
(a) for the recovery of immovable property
(b) for partition of immovable property
(c) for foreclosure, sale or redemption in case of mortgage of or charge upon immovable
property.
(d) for the determination of any other right to or interest in immovable property.
(d) for compensation for wrong to immovable property.
(f) for recovery of immovable property actually under distraint or attachment,
shall be instituted in the Court within the local limits of whose jurisdiction the property is situated.
Provided that suit to obtain relief respecting or compensation for wrong to immovable property
held by or on behalf of defendant may, where the relief sought can be entirely obtained through
his personal obedience be instituted either in court within the local limits of whose jurisdiction the
property is situate, or in the court within the local limits of whose jurisdiction the defendant
actually and voluntarily resides or carries on business or personally works for gains."
In the present case plaintiff's claim is right or interest in immovable property which is situated at
Kanpur therefore in view of clause (d) of Section 16, Delhi Courts has no territorial jurisdiction to
decide the suit for such immovable property. Therefore plaintiff's suit for his right to or interest in
immovable property situated at Kanpur shall not be maintainable.
Now question arises as to claim of plaintiff for Rs. 50,000, lying deposited at Delhi Bank. Here
Section 20 of C.P.C. is relevant which provide that suits not covered by any Rules provided under
section 16 to 18 shall be filed :
(a) Where the cause of action wholly or partly arises
(b) Where defendant resides or carries on business or personally works for gain or
(c) Where there are two or more defendants, any of them resides or carries on business or
personally works for gains provided in such case either leave of court is obtained or the
defendant who does not reside or carry on business or personally works for gains at that place
acquiesce in such institution.
Defendant in present case resides at Delhi and sum of Rs. 50,000, in respect of which cause of action
arose also lying deposited at Delhi Bank therefore in view of provisions of Section 20 C.P.C., plaintiff's
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suit at least for Rs. 50,000, is maintainable at Delhi Courts.
Q. 23 (a) X, Y and Z are joint owners of a property situated at Jaipur. X lives in Bombay, Y lives in
Delhi and Z lives in Jaipur. In which court or courts can the suit for partition be filed ? Give reasons.
(b) A residing in Bombay, publishes in Delhi statements defamatory of B. Where can B file a suit for
compensation against A ?
Ans. (a) Section 16 of the Code of Civil Procedure provides that suits relating to immovable property
are to be instituted where subject-matter is situated. Its proviso also provides that if the relief sought
can be entirely obtained through the personal obedience of the defendant, the suit may be instituted
either in the court within the local limits of whose jurisdiction the defendant resides or carries on
business, or personally woks for gain. That being so, suit for partition of property situated at Jaipur.
Proviso to Section 16 C.P.C. will not be attracted in present case. X, Y and Z are joints owners, X
lives in Bombay, Y lives in Delhi and Z lives at Jaipur. Therefore in case in hand suit for partition of
property can be filed at Jaipur, where suit property is situated.
(b) This problem is covered by Section 19 of C.P.C. which provides that suit for compensation for
wrong to persons or moveable property can be filed either where the wrong is committed or where
defendant resides or carries on business or personally works for gain. In case in hand A (Defendant)
was residing in Bombay, while defamatory statement was published in Delhi by A. So B can file suit
again A either at Bombay where A resides or at Delhi where defamatory statement was published.
Q. 24 A transport company has its head office at Chandigarh and branch offices at Chennai, Jaipur
and Mumbai. A dispute cropped up between Sam and the company in respect of a transaction made
through Chennai office. Sam files a suit in respect of this dispute against the company in a court at
Jaipur. How the court will decide ?
Ans. Section 20 of the Code of Civil Procedure, so far as it is relevant for our purpose, reads as under
: "Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of
whose jurisdiction -
(a) the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or personally
works for gain; or
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(b) any of the defendants, where there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on business, or personally works for gain,
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 work for gain, as aforesaid acquiesce in such
institution;
(c) or the cause of action, wholly or in part, arises.
Explanation : A corporation shall be deemed to carry on business at its sole or principal office in India
or, in respect of any cause of action arising at any place where it has also a subordinate office, at such
place".
So if a suit is filed against a Corporation on the ground of its carrying on business, then in view if
Explanation to Section 20, suit will lie where the Corporation has its head office even if no part of
cause of action arises there or branch office where cause of action has arose.
In the case in hand the suit against the Company can be filed at Chandigarh where it has its head
office, or at Chennai where the Company has its branch office and cause of action has arisen at
Chennai. No suit can be entertained by a Court at Jaipur or Mumbai, although the company has its
branch offices at those places, because no part of the cause of action arose either at Jaipur or
Mumbai.
Q. 25 A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at Varanasi, B
and C make a joint promissory note payable on demand and deliver it to A.
A files suit for recovery at Varanasi, B and C object to Jurisdiction of Court at Varanasi to try the suit
asserting that defendants B and C do not reside at Varanasi. How would you decide the objection ?
Ans. Section 20 of the Code of Civil Procedure provides as under :-

"Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits
of whose jurisdiction :-
works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the
suit, actually and voluntarily resides, or carries on business, or personally works for gain, 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 work for gain, as aforesaid, acquiesce in such institutions; or
(c) the cause of action, wholly or in part, arises."
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Under this Section the plaintiff has the option of suing at a place either where the cause of action or a
part thereof has accrued, or in the forum of the defendant, i.e., where the defendant resides or carries
on business or personally works for gain.
In view of the provisions contained in Clause (b) of Section 20 of the Code, A can file the suit at
Calcutta where B resides, or at Delhi where C resides; but in each of these cases either the non-
resident defendant should acquiesce in such institution or the leave of the Court should be obtained. If
the non-resident defendant objects, the suit cannot proceed without the leave of the Court.
In the present case, the joint promissory note payable on demand was executed by B and C at
Varanasi. In other words, the contract was made at Varanasi. It is a settled proposition of law that the
making of the contract is a part of the cause of action, and, as such, a suit can be filed on the basis of
the said pronote at Varanasi where the cause of action arose.
Q. 26 Determine the place of suing in the following cases:
(i) À', a resident of Delhi, `B' a resident of Bangalore and `C' of Calcutta, meet at Kurukshetra.
There `B' and `C' borrowed Rs. 10,000/- from À' and jointly executed a pronote and handed it
over to À'. All of them went back to their respective places but the money was not returned. À'
wants to file a suit for recovery of his money.
(ii) Father of À' and `B' had a bungalow at Gurgaon, one house at Rohtak and Delhi each and
two big mango-groves in the district of Hissar. After the death of the father, À' took over the
management of the entire property and began appropriating the income. `B' wants to sue for
partition of the property.
Ans. (i) Section 20 of the Code of Civil Procedure provides as under:- "Subject to the limitations
aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction-
works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of
the suit, actually and voluntarily resides, or carries on business, or personally works for gain,
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 work for gain, as aforesaid, acquiesce in such
institutions; or
(c) the cause of action, wholly or in part, arses.
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In the present case, the joint promissory note payable on demand was executed by B and C at
Kurukshetra. In other words, the contract was made at Kurukshetra. Therefore, A can file the suit on
the basis of the said pronote at Kurukshetra where a part of the cause of action arose. In view of the
provisions contained in Clause (b) of Section 20 of the Code, A can file the suit at Bangalore where B
resides, or at Calcutta where C resides; but in each of these cases either of the non-resident
defendant should acquiesce in such institution or the leave of the Court should be obtained. If the non-
resident defendant objects, the suit cannot proceed without the leave of the Court.
(ii) Section 16 of the Code of Civil Procedure provides that subject to the pecuniary or other limitations
prescribed by any law, a suit for partition of immovable property shall be instituted in the court within
the local limits of whose jurisdiction the property is situate. Then Section 17 lays down that where a
suit is to obtain relief respecting, or compensation for wrong to, 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. This Section is practically another proviso to Section
16(1) of the Code.
Therefore, in the present case B can file a suit for partition of the said properties in any one of the
courts at Gurgaon, Rohtak, Delhi or Hissar.
Q. 27 When can an objection to jurisdiction be raised ? Can an objection as to territorial or pecuniary
jurisdiction of the court be raised by a party before the court of appeal or revision?
Ans. Section 21 of the Code of Civil Procedure deals with the question of objections to jurisdiction of
Court. It is important to point out here that objection as to territorial jurisdiction of a court does not
stand at par with objection as to competency of court to try a case. Competency of a court to try a
case goes to the very root of the jurisdiction and where it is lacking it is uncurable irregularity, vitiating
the whole proceedings whereas objection as to local jurisdiction of a court can be waived. Section 21
of Code is based on this principle.
OBJECTION AS TO TERRITORIAL JURISDICTION Under Section 21(1), no objection as to the
place of suing will be allowed by an appellate or revisional court unless the following three conditions
are satisfied :
(i) The objection was taken in the court of first instance ;
(ii) It was taken at the earliest possible opportunity and in cases where issues are settled at or
before settlement of issues ; and
(iii) There has been a consequent failure of justice.
OBJECTION AS TO PECUNIARY JURISDICTION Sub-section (2) of section 21 of the Code of Civil
Procedure provides that no objection as to the competence of a court with reference to the pecuniary
limits of its jurisdiction shall be allowed by any appellate or revisional Court unless such objection was
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taken in the Court at first instance at the earliest possible opportunity and in all cases where issues
are settled, on or before such settlement, and unless there has been a consequent failure of justice.
So Section 21 which confines its application only to objections as to territorial or pecuniary jurisdiction
of a court and provides that defects as to place of suing under section 15 to 20 may be waived, if
defendant allows the trial Court to proceed to decide the matter without raising objection in this regard.
In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, it was observed-
"When a case had been tried by a court on the merits and judgment rendered, it should not be
liable to be reversed purely on technical grounds, unless it had resulted in failure of justice, and
the policy of the legislature has been to treat objections to both territorial and pecuniary as
technical and not open to consideration by an appellate court, unless there has been a prejudice
on merits."
Q. 28 What are the provisions relating to transfer of a civil suit ?
Ans. Sections 22 to 25 of the Code of Civil Procedure lay down the provisions relating to transfer of a
suit. Section 22 of the Code of Civil Procedure provides that where a suit may be instituted in any one
of two or more courts and is instituted in one of such courts, any defendant after notices to the other
parties, may at the earliest possible opportunity and in all cases where issues are settled, at or before
such settlement, apply to have the suit transferred to another court, and the court to which such
application is made, after considering the objections of the other parties, if any, shall determine in
which of the several courts having jurisdiction the suit shall proceed.
Section 23 of the Code of Civil Procedure further lays down in which court such application lies.
According to it, the position is as follows :-
(i) Where the several courts having jurisdiction are subordinate to the same appellate court, an
application under section 22 shall be made to the appellate court.
(ii) Where such courts are subordinate to different appellate courts, but to the same High Court,
the application shall be made to the said High Court.
(iii) Where such courts are subordinate to different High Courts, the application shall be made to
the High Court within the local limits of whose jurisdiction the court in which the suit is brought is
situate.
Apart from the said provisions relating to transfer, section 24 of the Code of civil Procedure deals with
the general powers of transfer and withdrawal. It provides that on the application of any of the parties
and after notice to the parties and after hearing such of them as desires to be heard, or of its own
motion without such notice, the High Court or the District Court may at any stage withdraw any suit,
appeal or other proceedings before it for trial or disposal to any court subordinate to it and competent
to try or dispose of the same, or, withdraw any suit, appeal or other proceeding pending in any court
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subordinate to it. In case of withdrawal, it can try or dispose of the same, or transfer the same for trial
or disposal to any court subordinate to and competent to try or dispose of the same or retransfer the
same for trial or disposal to the court from which it was withdrawn.
By adding sub-section (3) to section 24 of the Code of Civil Procedure, by the Amendment Act of
1976, it has further been clarified that courts of Additional and Assistant Judges shall be deemed to be
subordinate to the District Judge Court and `proceeding' includes a proceeding for the execution of a
decree or order. It has further been provided by sub-section (5), which too has been added by the
Amendment Act of 1976, that a suit proceeding may be transferred under this section from a Court
which has no jurisdiction to try it.
Section 25 of Code provide regarding power of Supreme Court to transfer suits etc. Section 25(1)
says that on application of a party and after notice to the parties and after hearing such of them as
desire to be heard, the Supreme Court, may at any stage, if satisfied that an order under this Section,
is expedient for the ends of justice, 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.
Q. 29 What do you understand by an interpleader suit ? State the relevant provisions contained in
the Code of Civil Procedure Code with regard to such a suit.
Ans. (a) Meaning - An interpleader suit is a suit in which the real dispute is not between the plaintiff
and the defendant but between the defendants only and the plaintiff is not really interested in the
subject-matter of the suit. In other words, in an interpleader suit, the defendants interplead, i.e., plead
against each other instead of pleading against the plaintiff as in an ordinary suit. Section 88 enacts
that where two or more persons claim adversely to one another the same debt, sum of money or other
property, movable or immovable, from another person who does not claim any interest in it except the
charges or costs and is ready to pay or deliver it to the rightful claimant, such person may file an
interpleader suit.
(b) Conditions - The following conditions must be satisfied before an interpleader suit can be
instituted -
(1) there must be some debt, sum of money or other property movable or immovable in dispute;
(2) two or more persons must be claiming it adversely to one another;
(3) the person from whom such debt, money or property is claimed, must not be claiming any
interest therein other than the charges and costs and he must be ready to pay or deliver it to the
rightful claimant; and
(4) there must be no suit pending in which the rights of the rival claimants can be property
decided.
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(c) Procedure - Order 35 lays down the procedure relating to an interpleader suit. In every
interpleader suit the plaint in addition to other statements necessary for plaints, state (i) that the
plaintiff claims no interest in the subject-matter in dispute other than the charges or costs; (ii) the
claims made by the defendants severally; and (iii) there is no collusion between the plaintiff and any of
the defendants. The Court may order the plaintiff to place the thing claimed in the custody of the court
and provide his costs by giving him a charge on the thing claimed. Where any of the defendants in an
interpleader suit files a suit against the plaintiff in another court in respect of the subject-matter of the
suit, that court shall stay the proceedings. At the first hearing, the court may declare that the plaintiff is
discharged from all liability, award him his costs and dismiss him from the suit; or if it thinks that justice
or convenience so requires, retain all parties until the final disposal of the suit. Where the admission of
the parties or other evidence enables the court to do so, it may adjudicate the title to the thing
claimed.
Q. 30 What do you under stand by non-joinder and mis-joinder of parties and mis-joinder of causes
of action ?
Ans. The question of joinder of parties may arise either as regards the plaintiffs or as regards the
defendants. Order 1 deals with the subject of parties to suit and inter alia (amongst other things) with
the joinder, misjoinder and non-joinder of parties and to some extent with the joinder of cause of
action.
Joinder of plaintiffs (Rule 1) - All persons may be joined in one suit as plaintiffs where (a) any right
to relief in respect of, or arising out of, the same act, or transaction or series of acts or transactions, is
alleged to exist in such persons whether jointly, severally or in the alternative; and (b) if such persons
brought separate suits, any common question of law or fact would arise.
A enters into an agreement jointly with B and C to sell 100 tins of oil. A thereafter refuses to deliver
the goods. Here both, B and C have each of them a right to recover damages from A. The said right
arises out of the same transaction, namely, the breach of agreement; and common questions of law
and fact would also arise. B and C, therefore, may file a suit jointly as plaintiffs against A for damages.
Separate trials (Rule 2) - Where it appears to the court that any joinder of plaintiff may embarrass or
delay the trial of the suit, the court may put the plaintiffs to their election or order separate trials or
make such other order as may be expedient.
Joinder of defendants (Rule 3) - All persons may be joined in one suit as defendants where - (a) any
right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions, is alleged to exist against such persons, whether jointly, severally or in the alternative;
and (b) if separate suits were brought against such persons, any common question of law or fact
would arise.
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Before going into Non-joinder or Mis-joinder of parties, it is necessary to understand the meaning of
"Necessary party" and "Proper party". A necessary party is one whose presence is indispensable for
proceeding with the suit and for final decision thereof. On the other hand "Proper party" is one in
whose absence an effective order can be passed, but whose presence is necessary for complete and
final decision of suit.
Mis-Joinder and Non-Joinder of Parties Where a person who is necessary or proper party to a suit
has not been joined as a party to suit, it is a case of non-joinder. On the other hand, if two or more
persons are joined as plaintiffs or defendants in one suit in contravention of Order 1 rule 1 and 3 and
they are neither necessary nor proper party, it is a case of mis-joinder of parties.
Order 1 rule 9 says "No suit shall be defeated by reason of the mis-joinder or non-joinder of parties,
and the court may in every suit deal with the matter in controversy so far as regards the rights and
interests of the parties actually before it :
Provided that nothing in this rule shall apply to non-joinder of a necessary party.
Misjoinder of Causes of Action Order 2 Rule 3 of the Code of Civil Procedure provides that save as
otherwise provided, a plaintiff may unite in the same suit several causes of action against the same
defendant, or the same defendants jointly, and any plaintiffs having cause of action in which they are
jointly interested against the same defendant or the same defendants jointly may unite such causes of
action in the same suit. Therefore, if the plaintiffs are not jointly interested against the same defendant
or defendants jointly, then, there is a misjoinder of causes of action.
It has further been provided in Order 2 Rule 7 C.P.C., that all objections regarding misjoinder of
causes of action shall be taken at the first hearing of the suit i.e., at the earliest opportunity at or
before settlement of issue, unless the ground of objection has subsequently arisen and any such
objection not so taken shall be deemed to have been waived. Same is the position regarding the
objections as to non-joinder or misjoinder of parties as provided in Order 1 Rule 13 C.P.C.
Q. 31 A owned some land which B was cultivating as a tenant. A had four sons C, D, E and F. After
A's death the land was sold by C, D, E and G son of predeceased son F to H vide registered sale
deed dt. 12.2.68. H filed suit for recovery of possession against B. B contested the suit on the ground
inter alia that there are other co-owners of that property and since all co- owners have not joined in
the filing of suit, the suit is bad for non-joinder of necessary parties. In the written statement he also
gave the pedigree table of A but did not lead any evidence in this regard. The revenue record also did
not show that there was any other legal heir of A except C, D, E and G at the time of sale. So H
contended that he is sole owner and suit is not bad for non-joinder of other co-owners - Decide.
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Ans. There is essential distinction between "Necessary Party" and "Proper Party" A necessary Party
is one whose presence is indispensable or against whom relief is sought and without whom no
effective order can be passed. A Property Party is one in whose absence an effective order can be
passed but whose presence is necessary for complete and final decision on question involved in
proceedings.
Order 1 Rule 9 of C.P.C. provide that "no suit shall be defeated by reason of the misjoinder or non-
joinder of parties and court may in every suit deal with the matter in controversy so far as regards the
rights and interests of parties actually before it, Provided that nothing in this Rule shall apply to non-
joinder of necessary party."
So general Rule is that no suit can be decided without necessary parties to it. However Rule 10 of
Order 1 C.P.C. provides for substitution or addition of parties to suit on either of two grounds namely:-
(a) He ought to have been joined as plaintiff or defendant and is not so joined or
(b) Without his presence, the question involved in the suit can not be completely decided.
So precisely speaking no suit shall be dismissed for non-joinder or misjoinder of parties unless it is
shown that any necessary party is there which is not joined and without whom matter can not
completely and adequately decided.
In Laxmi Shankar v. Yash Ram Vasta AIR 1993 SC 1587 Supreme Court after relying upon the
judgment of Pal Singh v. Sunder Singh AIR 1989 SC 758 wherein it was held that when other co-
owner did not object to eviction, one co-owner could maintain eviction petition in the absence of other
co-owner. Similarly in A. Vishwanath Pillai's Case AIR 1991 SC 1966 wherein it was held that co-
owner could successfully file suit and recover the property against stranger, held that in the absence
of necessary proof it can not be held that suit is not maintainable on the ground of non- joinder of
necessary party.
Coming now to case in hand only issue for determination is whether plea of defendant (b) in the suit
that necessary parties have not been joined is sustainable. In his written statement Defendant (b) has
produced pedigree table. However to substantiate his plea, B has not led any evidence as to
Necessary party. A vague statement of B could not be considered sufficient for attraction of provisions
of Order 1 Rule 9 C.P.C. On the other hand Revenue Record shows that there were no other legal
heirs of A except B, C, D and G at the time of sale of suit property to plaintiff (H). Therefore in the
absence of any proof that there are other co-owner and are necessary parties, the suit can not be
dismissed for non-joinder of necessary parties.
Q. 32 What do you understand by Representative Suit ?
Ans. The general Rule is that all persons interested in the suit should be joined as party to it so that
matter involved in it may finally and completely be adjudicated upon and fresh litigation over the same
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matter may be avoided.

Rule 8 of Order 1 of C.P.C. is an exception to above said general rule. It provides that when there are
number of persons commonly interested in a suit, one or more of them can with the leave or upon the
direction of court, sue or be sued on behalf of themselves and other. Plaintiff in representative suit
need not to obtain previous consent of persons whom he represents.
DEFINITION: `Representative Suit' may be defined as suit filled by or against one or more persons on
behalf of themselves and others having same interest in the suit.
Order 1 Rule 8 C.P.C. has been enacted in order to save time and expense to ensure that a single
comprehensive trial of question in which numerous persons are interested and also to avoid
harassment to parties by multiplicity of suits.
However Order 1 Rule 8 C.P.C. contains only enabling provisions and does not compel any one to
represent many. Order 1 Rule 8 also does not vest a right of suit in a person, if he by himself has no
right to sue. It is necessary to bring the case within the provisions of Order 1 Rule 8, all the members
of a class should have common interest in a subject matter and a common grievance and relief should
in its nature be beneficial to all.
CONDITIONS - Following Rules must exist for application of Rule 8 Order 1 of C.P.C.
(a) The Parties must be numerous.
(b) They must have same or common interest in suit.
(c) Permission must have been granted or direction must have been given by the court.
(d) Notice must have been issued to parties whom it proposed to represent in the suit.
Q. 33 Can a person file a fresh suit in respect of same cause of action, when he has in a former suit,
relinquished part of his claim ?
Ans. Order 2 Rule 2 of the Code of Civil Procedure provides that every suit shall include the whole of
the claim which the plaintiff is entitled to make in respect of the cause of action ; but a plaintiff may
relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. It further
provides that if a plaintiff omits to sue in respect of, or intentionally relinquishes any portion of his
claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. Thus, the
plaintiff is not entitled to spilt his cause of action in two parts and bring separate of any portion of his
claim arising from the same cause of action, or relinquishes part of his claim, he will be precluded
from filing a fresh suit in respect of the same cause of action or the portion so omitted or relinquished.
Order 2 Rule 2 of the Code of Civil Procedure is based on the principle that the defendant should not
be vexed twice for the same cause. It is directed against the two evils, that is, spliting up of claims and
spliting of remedies. As regards the remedies available in respect of the same cause of action, sub-
rule (3) of Rule 2 of Order 2 of the Code of Civil Procedure provides that a person entitled to more
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than one relief in respect of the cause of the action may sue for all and any of such reliefs; but if he
omits, except with the leave of the court, to sue for all such reliefs, he shall not afterwards sue for any
relief so omitted.
The following conditions are essential for attracting the provisions of Order 2 Rule 2 of the Code of
Civil Procedure :-
(i) That the second suit is in respect of the same cause of action as that on which the previous
suit was based,
(ii) that in respect of the cause of action, the plaintiff was entitled to more than one relief; and
(iii) that the plaintiff without the leave of the court omitted to sue for the relief for which the
second suit has been filed.
Q. 34 A plaintiff who is entitled to sue for possession and damages files suit for damages only. Suit
is decreed. Can he file suit for recovery and damages ?
Ans. Order 2 of Civil Procedure Code deal with Frame of Suit.

Order 2 Rule 1 says as far as practicable all matters in dispute between parties be disposed of finally.
Order 2 Rule 2 provides that "every suit must include whole of the claim to which plaintiff is entitled in
respect of a cause of action and where plaintiff omits to sue or intentionally relinquish any portion of
his claim, he shall not, afterwards be allowed to sue in respect of portion of claim so omitted or
relinquished."
Underlying object of legislature to enact this provision is thus so far as possible all the matters in
dispute between parties in respect of same cause of action may be disposed of in the same suit so as
to prevent further litigation.
In Gurubax Singh v. Boora Lal AIR 1964 SC 1810 - it was held: to make the Rule applicable,
following conditions must be fulfilled :
(i) Second suit must be in respect of same cause of action as that on which a previous suit was
based.
(ii) In respect of that cause of action, plaintiff was entitled to more than one relief.
(iii) Being so entitled plaintiff without leave of the court omitted to sue for relief, for which now
second suit has been filed.
That being the legal position, in problem in hand Order 2, Rule 2 is not applicable because suit for
mesne profit (Damage for wrongful possession) arise subsequent to when suit for possession is
decreed.
Suit for possession and suit for damages for wrongful possession (mesne profits) are two distincts suit
and have separate cause of action.
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Therefore plaintiff after having suit for possession decreed can file suit for damages.
Q. 35 (a) Whether the court has power to order separate trials in respect of a suit in which several
causes of action have been joined ?
(b) Whether the Court can order consolidation of pending suits ? A suit is filed by a tenant for
declaring him as a monthly tenant of the defendant landlord and subsequently another suit is filed by
landlord for recovery of possession of the same property from the tenant. Whether both these suits
can be consolidated ?
Ans. (a) Power of Court to Order Separate Trials.

Order 2 Rule 6 of the Code of Civil Procedure provides that where it appears to the court that joinder
of action in one suit may embrass or delay the trial, or, is otherwise inconvenient, the Court may order
separate trials or make such other order as may be expedient in the interest of justice. The object of
Rule 6 is to prevent embarrassment or delay in the trial of suit and it gives power to the court to order
separate trials of causes of action whose joinder may cause embarrassment but the defendant cannot
claim the separation of the trials as of right. The said rule applies when it is open to the plaintiff to
combine several causes of action in one suit and it does not apply to a cause of misjoinder of causes
of action.
(b) Yes. The Court can order consolidation of pending suits in appropriate cases. It has been held in
several cases that the Courts have inherent jurisdiction to order consolidation of suits. The Court
should dispose of consolidated suits or appeals by one judgment. The consolidation is to be done
keeping in view the convenience of all the parties concerned.
Where a suit is filed by a tenant for declaring him as a monthly tenant of the defendant-landlord and
subsequently another suit is filed by landlord for recovery of possession of the same property from the
tenant, both the suits can be consolidated, as held by the Hon'ble High Court of Calcutta in Humayan
Properties Limited v. Narayan Das Arora, AIR 1983 (NOC) 189 Calcutta.
Q. 36 State Rules relating to service of summons.
Ans. Summons is a document issued from the office of a court of justice calling upon the person to
whom it is directed to attend before a judge or officer of the court on the day mentioned therein. Vide
Amendment Act, No. 22 of 2002 Rule 1 to Order V has been amended. Sub-rule (1) to Rule 1 says -
"When a suit has been duly instituted, a summons may be issued to defendant to appear and answer
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the claim and to file the written statement of his defence if any within 30 days from the date of service
of summons on that defendant :
Provided that no such summons shall be issued when a defendant has appeared at the
presentation of plaint and admitted the claim of plaintiff.
Provided further that where defendant fails to file the written statement within said period of 30
days he shall be allowed to file the same on such other days as may be specified by the court for
reasons to be recorded in writing, but which shall not be later than 90 days from date of service
of summons." Order V Rule 2 of the Code of Civil Procedure also provides that every summons
shall be accompanied by a copy of the plaint or, if so permitted, by a concise statement.
RULES RELATING TO SERVICE OF SUMMON (1) Personal Service: Order V Rule 10 of Code of
Civil Procedure provides that service of summons shall be made by delivering or tendering a copy
thereof, signed by the judge or such officer as he appoints in this behalf and sealed with the seal of
the court. According to Rule 12 of Order V of the Code of Civil Procedure, wherever it is practicable,
service shall be made on the defendant in person, unless he has an agent empowered to accept
service in which case the service on such agent shall be sufficient.
Order V Rule 15 of the Code of Civil Procedure provides that where in any suit the defendant is
absent at the time when the service of summons is sought to be effected on him at this residence and
there is no likelihood of his being found at the residence within a reasonable time and he has no agent
empowered to accept service of the summons on his behalf, service may be made on any adult
member of the family, whether male or female, who is residing with him.
(2) Service by Affixation : Order V Rule 17 of Code of Civil Procedure provides this mode of service.
According to it, where the defendant or his agent or such other person, as aforesaid, i.e., the adult
member of this family, refuses to sign the acknowledgement, or where the serving officer after using
all due and reasonable diligence, cannot find the defendant who is absent from his residence at the
time when service is sought to be effected on him at his residence within a reasonable time and there
is no agent empowered to accept service of the summons on his behalf, nor any other person on
whom the service can be made, the serving officer shall affix a copy of summons on the outer door or
some other conspicuous part of the house in which the defendant ordinarily resides or carries on
business or personally works for gain, and shall then return the original to the court from which it was
issued, with a report endorsed thereon or annexed thereto, stating that he has so affixed the copy, the
circumstances under which he did so.
(3) Service by Registered Post : Rule 12-A has been added to Order V of the Code of Civil
Procedure by the Amendment Act of 1976 and it provides for simultaneous issue of summons for
service by post in addition to personal service. It lays down that the court shall, in addition to and
simultaneously with, the issue of summons for service also direct the summons to be served by
registered post, acknowledgement due, addressed to the defendant or his agent empowered to
accept the service at the place where the defendant or his agent, actually and voluntarily resides or
carries on business or personally works for gain.
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Sub-rule (2) of Rule 12-A of the said Order V lays down that when an acknowledgement purporting to
be signed by the defendant or his agent is received by the court or the postal article containing the
summons is received back by the court with an endorsement purporting to have been made by a
postal employee to the effect that the defendant or his agent had refused to take delivery of the postal
article containing the summons when tendered to him, the court issuing the summons shall declare
that the summons had been duly served on the defendant.
(4) Delivery of Summons by Court. - Vide Amendment Act No. 22 of 2002, Rule 9 of Order 5 has
been amended, which provided Delivery of Summons By Court" - Rule 9 inter alia says that where
defendant resides within the jurisdiction of court in which suit is instituted or has an agent resident
within that jurisdiction who is empowered to accept the summon it shall, unless court otherwise
directs, be delivered to proper offices, to be served by him or to such courier services as all approved
by the court.
(5) Serice by curier. - Sub rule (3) as amended in year 2002 says service of summons may be made
by delivering or transmitting a copy thereof by registered post A.D. or by speed-post or by such
courier services as approved by High Court or Court referred in sub-rule (1). However service of
summons under this rule shall be made at the expense a plaintiff.
(6) Substituted Service : Order V Rule 20 of the Code of Civil Procedure provides for substituted
service. It lays down that where the court is satisfied that there is no reason to believe that the
defendant is keeping out of the way for the purposes of avoiding service, or that for any other reasons
the summons cannot be served in the ordinary way, the court shall order the summons to be served
by affixing a copy thereof in some conspicuous part of the house, if any, and in which the defendant is
known to have last resided or carried on business or personally worked for gain or in such other
manner as the court thinks fit.
Sub-rule 1 - A added to the said Rule, by the Amendment Act of 1976, further provides that where the
court acting under Sub-rule (1) orders service by an advertisement in a newspaper, the newspaper
shall be a daily newspaper circulating in the locality in which the defendant is last known to have
actually and voluntarily resided, carried on business or personally worked for gain.
(7) Service on Soldiers, Sailors or Airman : Rule 28 of Order V of the Code of Civil Procedure
provides that where the defendant is a soldier, sailor or airman, the court shall send the summons for
service to his commanding officer, together with a copy to be retained by the defendant.
(8) Service on Corporation : Order XXIX Rule 2 of the Civil Procedure Code deals with service on
corporation. It provides that where the suit is against a corporation, the summons may be served: (a)
on the secretary, on any director, or other principal officer of the corporation, or (b) by leaving it or
sending it by post addressed to the corporation at the registered office, or if there is no registered
office, then at the place where the corporation carries on business.
(9) Service on defendant resides within the jurisdiction of another court. - Service of summons
on the defendant who resides within the jurisdiction of another court is to effected in accordance with
Rule 25 Order V the Code of Civil Procedure. It provides that a summons, in such a case, may be
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sent by the court by which it is issued, whether within or without the State, either by one of its officers
or by post to any court having jurisdiction in the place where the defendant resides.
(10) Service on defendant residing out of India. - Service on the defendant residing out of India
and having no agent in India is to be effected in accordance with the provisions of Rule 25 of Order V
of Code of Civil Procedure. It provides that where the defendant resides out of India has no agent in
India and empowered to accept service, the summons shall be addressed to the defendant at the
place where he is residing and sent to him by post, if there is postal communication between such
place and the place where the court is situate.
Q. 37 What is meant by "Pleadings" ? Briefly state the object and fundamental rules regarding
pleadings.
Ans. Pleadings : Order 6 Rule 1 of Code of Civil Procedure provides that "Pleading" shall mean plaint
or written statement. So pleadings are statements in writing, filed by each party to a case stating what
his contention will be at the trial and giving all such details as his opponent needs to know in order to
prepare his case in answer.
Plaint is the statement of claim in writing and filed by plaintiff in which he sets out his cause of action
with all necessary particulars and "Written Statement" is the statement of defence in writing and filed
by defendant in which he deals with every material facts alleged by plaintiff in the plaint and also
states any new facts which may be in his favour including legal objections.
Order 6 Rule 2 of Code provides that every pleading shall contain, and contain only, a statement in a
concise form all material facts on which the party pleading relies for his claim or defence as the case
may be, but not the evidence by which they are to be proved and shall as and when necessary be
divided into paragraphs numbered consecutively.
Object of Pleadings
The whole object of pleadings is to bring parties to definite issues and to diminish expense and delay
and to prevent surprise at the hearing. In Ganesh Trading Co. v. Moji Ram, AIR 1979 SC 484 it was
observed :
"Provisions relating to pleadings in civil case are meant to give to each side intimation of the
case of the other so that it may be met, to enable courts to determine what is really at issue
between parties, and to prevent deviations from the course which litigation on particular causes
of action must take."
Rules Regarding Pleadings :- The Code of Civil Procedure lays down the following rules regarding
pleadings of the parties:-
(i) Pleading must state the material facts on which the party relies and not evidence. [Order 1
rule 2(1)]
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(ii) The facts should be stated in the form of a concise statement and shall be divided into
paragraphs numbered consecutively. [Order VI Rule 2(2) C.P.C.]
(iii) In the pleadings, dates, sums and numbers shall be expressed in figures as well as in words.
[Order VI Rule 2(3) C.P.C.]
(iv) In all cases in which the party relies on any misrepresentation, fraud, breach of trust, wilful
default and undue influence and in all other cases in which particulars may be necessary, they
should be stated with dates and items in the pleadings. [Order VI Rule 4 C.P.C.]
(v) Any condition precedent, the performance of occurrence of which is intended to be contested,
shall be distinctly specified in the pleading by the plaintiff or defendant, as the case may be, and
all conditions precedent necessary for the case of the plaintiff or defendant shall be implied in his
pleading and, therefore, such conditions need not be alleged specifically. [Order VI Rule 6
C.P.C.]
(vi) Where the contents of any document are material, it shall be sufficient in any pleadings to
state the effect thereof as briefly as possible without setting out the whole or any part thereof,
unless the precise words of the document or any part thereof are material. [Order VI Rule 9
C.P.C.]
(vii) Wherever it is material to allege malice, fraudulent intention, knowledge or other condition of
the mind of any person, it shall be sufficient to allege the same as a fact without setting out the
circumstances from which the same is to be inferred. [Order VI Rule 10 C.P.C.]
(viii) Wherever it is material to allege notice to any person of any fact, matter or thing, it shall be
sufficient to allege such notice as a fact, unless the form of the precise term of such notice, or the
circumstances from which such notice is to be inferred, are material (Order VI Rule 11 C.P.C.)
(ix) Whenever any contract or any relation between any person is to be implied from a series of
letters or conversations or otherwise from a number of circumstances, it shall be sufficient to
allege such contract or relation, as a fact, and to refer generally to such letters, conversations or
circumstances without setting them out in detail. [Order VI Rule 12 C.P.C.]
(x) Facts which the law presumes need not be pleaded. [Order VI Rule 13]
(xi) Legal pleas such as estoppel, limitation and res judicata may be pleaded.
(xii) Every pleading shall be signed by the party and his pleader, if any. [Order VI Rule 14 C.P.C.]
(xiii) Every pleading shall be verified at the foot by the party or by one of the parties pleadings
[Order VI Rule 15 C.P.C.]
Q. 38 What are the powers of the court to allow amendment of pleadings ?
Ans. General Rule of pleadings is that all the material facts and necessary particular must be stated in
the pleadings and decision cannot be based on grounds outside the pleadings. But many a time the
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party may find it necessary to amend his pleadings before or during trial of the case. Rule 17 of Order
6 C.P.C. provides for amendments of pleading. It reads as under:-
"The court may at any stage of proceedings allow either party to alter or amend his pleadings in
such manner and on such terms as may be just and all such amendments shall be made as may
be necessary for the purpose of determining the real questions in controversy between the
parties."
Civil Procedure Code (Amendment) Act, 2002 has inserted proviso to Rule 17 of Order 6 of Code
which says :-
"Provided that no application for amendment shall be allowed after the trial has commenced,
unless the court comes to the conclusion that inspite of due diligence, the party could not have
raised the matter before the commencement of trial."
So the object of the Rule is that the courts should try the merits of case that come before them and
should consequently allow all amendments that may be necessary for determining the real question in
controversy between the parties provided it does not cause injustice or prejudice to other side.
Therefore main points to be considered before a party is allowed to amend his pleadings are: Firstly
whether the amendment is necessary for determination of real question in controversy and secondly
can the amendment be allowed without injustice to other side.
However in following cases, court is justified in refusing to amend pleadings :-
(a) Leave to amend will be refused where the amendment is not necessary for the purpose of
determining the real question in controversy.
(b) Leave to amend will be refused if it introduces a totally different and a new and inconsistent
case or changes the fundamental character of case.
(c) Leave to amend will be refused where the effect of proposed amendment is to take away
from other side a legal right accrued in his favour by lapse of time or when leave to amend
pleadings is not made in good faith.
Recently Supreme Court in B.K.N. Pillai v. P. Pillai, AIR 2000 SC 614 has observed:-
"All amendments of pleadings should be allowed which are necessary for determination
of real controversy in suit provided proposed amendment does not alter or substitute new
cause of action or proposed amendment should not cause such prejudice which cannot
be compensated by cost"
Q. 39 What do you understand by "Plaint" and "Written Statement" ? What are particulars which are
required to be contained in 'Plaint' and 'Written Statement' ?
Ans. PLAINT : Plaint is statement of claim , a document by presentation of which the suit is instituted.
Order 7 Rules 1 to 5 C.P.C. say that Plaint should contain fillowing particulars :
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(a) Name of the court in which suit is brought.

(b) Name , description and place of residence of Plaintiff(s) and Defendant(s)
(c) Facts constituting the cause of action and when it arose.
(d) Facts showing that court has jurisdiction.
(e) Statement of value of subject matter of suit for the purpose of court fee
(f) Relief claimed by Plaintiff.
(g) Where the Plaintiff or Defendant is minor or person of unsound mind, statement to this effect.
(h) Where Plaintiff has allowed set off or relinquished any portion of his claim, the amount so
allowed or relinquished
(i) If subject matter of suit is immoveable property, description of such property for identity
(j) If the suit is time barred , the grounds upon which the exemption from law of Limitation is
claimed.
In view of Civil Procedure Code (Amendment) Act 2002, Rule 9 of Order 7 has been amended, now,
it provides -
"PROCEDURE ON ADMITTING PLAINT : Where the court orders that the summons be served
on defendants in the manner provided in Rule 9 of Order 5, it will direct the plaintiff to present as
many copies of the plaint on plain paper as there are defendants within seven days from the date
of such order along with requisite fee for service of summons on defendants."
Order 7 Rule 10 C.P.C says that where at any stage of suit, court finds that it has no jurisdiction either
teritorrial or pecuniary or with regard to subject matter of suit, it will return the plaint to be presented to
proper court.
Order 7 Rule 11 says that Plaint will be rejected in following cases :
(a) Where plaint does not disclose the cause of action.
(a) Where relief claimed is under valued and valuation is not corrected within the time fixed by
court.
(c) Where plaint is insufficiently stampped and plaintiff fails to pay requisite court fee fixed by
court.
(d) Where suit appears to be barred by Law.
Following ground were added vide Amendment Act of 1999 and 2002, in Rule 11 of Order 7 one
ground is added as :-
(e) Where it is not filed in duplicate
(f) Where plaintiff fails to comply with provisions of Rule 9 WRITTEN STATEMENT : Written
statement is pleading of defendant wherein he deals with every material fact alleged by plaintiff
in his plaint and also states any new fact in his knowledge and takes legal objections against the
claim of plaintiff.
Civil Procedure Code (Amendment) Act 2002 has amended Rule 1 of Order 8 of Code in following
words :
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"The defendant shall within 30 days from the date of service of summons on him, present a
written statement of his defence :
Provided that where defendant fails to file the written statement within said period of thirty days, he
shall be allowed to file the same on such other day as may be specified by the court, for reasons to be
recorded in writing, but which shall not be later than ninety days from the date of service of
summons."
Order 8 Rule 1 to 5 and 7 to 10 C.P.C provides as to particulars to be contained in a written statement
:
(a) Defendant may take any number of defences either simply or alternatively, even though they
may be inconsistent provided they are maintainable at Law.
(b) New facts such as the suit is not maintainable or that transaction is either void or voidable
and all such defences as , if not raised would take the plaintiff by surprise must be raised.
(c) Defendant is bound to produce all the documents in support of his defence or his claim to set-
off or counter claim, which are in his possession.
(d) Where defendant wants to deny any allegation of fact in the plaint, he must do so clearly and
specifically. Every allegation of fact in plain if not specifically or by necessary implication, shall be
taken as admitted except as against a person under disability. Court may however require the
proof of any such fact otherwise than by such admission.
Vide Amendment Act of 2002 Sub-rule (3) is amended in Rule 1-A of Order 8 of Code as :-
"A document which ought to be produced in court by the defendant under this rule, but is not so
produced shall not, without the leave of the court, be received in evidence on his behalf at the
hearing of the suit."
Vide Amendment Act 2002, Rule 9 and 10 to Order 8 have been amended in following words -
"9. Subsequent pleadings - No pleading subsequent to the written statement of a defendant
other than by way of defence to set-off or counter-claim shall be presented except by the leave of
the Court and upon such terms as the Court thinks fit; but the Court may at any time require a
written statement or additional written statement from any of the parties and fix a time of not
more than thirty days for presenting the same.
10. Procedure when party fails to present written statement called for by Court - Where
any party from whom a written statement is required under Rule 1 or Rule 9 fails to present the
same within the time permitted or fixed by the Court, as the case may be, the Court shall
pronounce the judgment against him, or make such order in relation to the suit as it thinks fit and
on the prouncement of such judgment a decree shall be drawn up".
Q. 40 (A) When can a plaint be returned for presentation to another court ?
(B) When can court reject the plaint ?
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Ans. (A) RETURN OF PLAINT Order 10 Rule 1(1) of Code of Civil Procedure says "Subject to the
provisions of rule 10-A the plaint shall at any stage of the suit be returned to be presented to the court
in which the suit should have been instituted."
Rule 1(2) says "On returning a plain, the judge shall endorse thereon, the date of its presentation and
return the same of the party presenting it, and a brief statement of reasons for returning it."
In Amar Chand v. Union of India, AIR 1973 SC 313, it was observed that when the plaint is filed in
proper court after getting it back from the wrong court, it cannot be said to be continuation of suit. Suit
must be deemed to be presented when it is filed in proper Court."
By Order VII, Rule 10-A of the Code of Civil Procedure, it has been provided that where, in any suit,
after the defendant has appeared, the court is of opinion that the plaint should be returned, it shall,
before doing so, intimate this decision to the plaintiff and the plaintiff, on receiving such intimation,
may make an application to the court (a) specifying the court in which he proposes to present the
plaint after its return (b) praying that the court may fix a date for the appearance of the parties in the
said court and (c) requesting that the notice of the date so fixed may be given to him and to the
defendant. Sub-rule (3) of Rule 10-A of the Code lays down that where an application is made by the
plaintiff, the Court shall, before returning the plaint, and notwithstanding that the order for return of
plaint was made by it on the ground that it has no jurisdiction to try the suit : (a) fix a date for the
appearance of the parties in the court in which the plaint is proposed to be presented and (b) give to
the plaintiff and to the defendant notice of such date for appearance. Sub-rule (4) of this Rule further
provides that where the notice of the date for appearance is given, it shall not be necessary for the
court in which the plaint is presented after its return, to serve the defendant with a summons for
appearance in the suit, unless that court, for reasons to be recorded otherwise directs, and the said
notice shall be deemed to be a summons for the appearance of the defendant in the court in which the
plaint is presented on the date so fixed by the court by which the plaint was returned.
Rule 10-B of order VII of the Code of Civil Procedure, deals with the power of appellate court to
transfer suit to the proper court. It provides that where, on an appeal against an order for the return of
plaint, the Court hearing the appeal confirms such order, the Court of appeal may, if the plaintiff by an
application so desire, while returning the plaint, direct plaintiff to file the plaint, subject to the
provisions of the Limitation Act, 1963, in the court in which the suit should have been instituted
(whether such court is within or without the State in which the court hearing the appeal is situated),
and fix a date for the appearance of the parties in the court in which the plaint is directed to be filed
and when the date is so fixed it shall not be necessary for the court in which the plaint is filed to serve
the defendant with the summons for appearance in the suit, unless that court in which the plaint is
filed, for reasons to be recorded, otherwise directs.
(B) REJECTION OF PLAINT Rules 11 to 13 of Order 7 of Code of Civil Procedure deal with rejection
of plaint. After the Amendment Act No. 22 of 2002, Rule-11 says plaint shall be rejected in following
cases :-
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(a) Where it does not disclose a cause of action;

(b) Where the relief claimed is under valued and the plaintiff on being required by the court to
correct the valuation within a time to be fixed by the court fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently
stamped and plaintiff, on being required by court to supply the requisite stamp-paper within a
time to be fixed by the court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law.
(e) Where it is not filled in duplicate.
(f) Where the plaintiff fails to comply with the provisions of rule- 9.
PROCEDURE ON REJECTION OF PLAINT (Rule-12)
Where a plaint is rejected the judge shall record an order to that effect with the reasons for such order.
Effect of rejection of plaint : Rule 13 If the plaint is rejected on any of the above grounds, the
plaintiff is not thereby precluded from presenting a fresh plaint in respect of the same cause of action.
An order rejecting a plaint is a "decree" within the meaning of Section 2(2) of the Code, and therefore,
is appealable also.
Q. 41 What do you understand by "Set off" ? Distinguish between the Legal and equitable set off.
Ans. When the plaintiff files a suit for recovery of money and the defendant pleads liability of the
plaintiff to pay to him, such a plea is called "set off". Thus in an action to recover money, a set off is a
cross claim by the defendant, for which he might maintain an action against the plaintiff. Order VIII
Rule 6 C.P.C. provides that only a set-off which is for ascertained sum of money legally recoverable
by the defendant from the plaintiff within the pecuniary jurisdiction of the court is permissible and both
the parties must fill the same character as they fill in the plaintiff's suit. It has also been provided in it
that the defendant may, at the first hearing of the suit, but not afterwards, unless permitted by the
court, present a written statement containing the particulars of the debt sought to be set-off. The
following are the essential conditions of legal set off :-
(i) The suit must be for recovery of money :
(ii) the amount claimed to be set off must be an ascertained sum of money ;
(iii) it must be legally recoverable from the plaintiff, i.e., it is not barred by time etc.
(iv) it must not exceed the pecuniary limits of the jurisdiction of the court ;
(v) it must be recoverable by the defendant or by all the defendants, if there are more than one ;
(vi) it must be recoverable by the defendant from the plaintiff or all the plaintiffs, if there are more
than one ;
(vii) both the parties must fill the same character as they fill in the plaintiff's suit.
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Equitable Set off Equitable set off means a set-off of an ascertained sum of money arising out of
cross demands, arising out of the same transaction in cases of debits and credits, in cases in which
cross demands arise out of the same transaction or are so connected in their nature and
circumstances as to make it inequitable that the plaintiff should recover and the defendant driven to a
cross suit, courts have allowed a set off even though the amount may be an unascertained sum and
such set off are known as equitable set off. Legal set off has been recognized by Order VI Rule 6 of
the Code of Civil Procedure and can be raised as of right but no provisions for equitable set off has
been made in the Code of Civil Procedure and it cannot be claimed as a matter of right.
Distinction Between Legal and Equitable Set off Following are the main distinctions between the legal
and equitable set off -
(a) Legal set off is for an ascertained sum of money while equitable set off may be allowed in
respect of an unascertained sum of money.
(b) In case of legal set off cross demand may or may not arise from the same transaction but in
equitable set off, the cross demands must arise out from the same transaction.
(c) In case of legal set off, the court is bound to entertain and adjudicate upon it because it has
been provided in Order 8 Rule 6 of Code and can be raised as of right while in case of equitable
set off it is not obligatory on the part of the court to adjudicate upon it.
(d) In a legal set off, the amount claimed must be legally recoverable and not barred by limitation
at the date of suit but claim by way of equitable set off can be allowed even if it is based by
limitation on date of suit where there is a fiduciary relationship between plaintiff and defendant.
(e) For legal set off, court fee is to be paid but it is not to be paid in case of equitable set off.
Q. 42 What do you understand by "Set-Off" and "Counter Claim" ? What is the difference between
the two ?
Ans. SET -OFF (Order 8 Rule 6 C.P.C ) A plea of set-off is 'a plea where by defendant acknowledges
the justice of Plaintiff's demand but sets up another demand of his own to counter claim that of plaintiff
either wholly or in part.'
Where in a suit for recovery of money by plaintiff, defendant finds that he has also a claim of some
amount against the plaintiff, he can claim a set-off in respect of said amount.
A defendant may claim set-off, if following conditions are satisfied :
(a) Suit must be for recovery of money.
(b) Sum of money must be ascertained.
(c) Such sum must be legally recoverable .
(d) It must be recoverable by defendant from plaintiff.
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(e) It must not exceed the pecuniary limits of the court in which the suit is brought.
(f) Both the parties must fill in defendant's claim to set-off, the same character as they fill in
plaintiff's suit.
COUNTER CLAIM : Counter claim may be defined as claim made by defendant in the suit , against
plaintiff. Thus counter claim is substantially a cross action. In Laxami Das v. Nana Bhai, AIR 1964
SC 11 Supreme Court. Held that right to make counter claim as statutory right and held that court has
power to treat the counter claim as cross suit and hear the original suit and counter claim together if
counter claim is properly stamped. Vide Amendment Act 1976 Rule 6-A to 6-G were added in Order 8
C.P.C. Rule 6-A(1) provides that defendant may set up by way of counter claim against the claim of
plaintiff any right or claim in respect of cause of action occruing to defendant against plaintiff either
before or after filing of suit but before the defendant has delivered his defence or before the time fixed
for delivery of his defence has expired.
SET-OFF and COUNTER CLAIM -- DISTINCTION (a) Set-off is statutory defence against plaintiff's
action and couter claim is substantially a cross action.
(b) Set-off must be for ascertained sum or it must arise out of same transaction , a counter claim need
not to arise out of the same transaction.
(c) In case of Set-off the amount must be recoverable at the date of suit, while in case of counter claim
the amount must be recoverable at the date of filling written statement.
(d) When defendant demands in a plaintiff's suit an amount below or upto that of suit, it is Set-off but
when it is for larger amount, the claim for excess amount is counter claim.
Q. 43 Discuss the provisions of Code of Civil Procedure relating to dismissal of suit for non-
appearance of parties ?
Ans. Order IX of the Code of Civil Procedure deals with the appearance of parties and consequences
of non-appearance. Order IX Rule 1 of the Code of Civil Procedure provides that on the date fixed in
the summons for the defendant to appear and answer, the parties shall be in attendance at the court
house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is
adjourned to a future day fixed by the court.
Dismissal of Suit ; The court may dismiss the suit on the date fixed for hearing if
(a) the summons is not served upon the defendant in consequence of failure of the plaintiff to
pay the court fee or postal charges, if any, chargeable for such service or to present copies of the
plaint or concise statement as required by Rule 9 of Order VII of the Code of Civil Procedure
(Order IX Rule 2 C.P.C.)
(b) neither party appears when the suit is called for hearing (Order IX Rule 3 C.P.C.)
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(c) After a summons has been issued to the defendant or to one of several defendants, and
returned unserved, the plaintiff fails for a period of one month from the date of the return, to apply
for the issue of a fresh summons unless the plaintiff has within the said period satisfied the court
that (i) he has failed after using his best endeavours to discover the residence of the defendant
who has not been served, or (ii) such defendant is avoiding of process or (iii) there is any
sufficient cause for extending the time (Order IX Rule 5 C.P.C.)
(d) The defendant appears and the plaintiff does not appear when the suit is called out for
hearing unless the defendant admits the claim or part thereof (Order IX Rule 8 C.P.C.).
Q. 44 B was in occupation of a house belonging to A. In March 1981, A had filed suit for possession
alleging that B was a trespasser in the house. The suit was contested by B who pleaded that he had
become the owner of the house by adverse possession. The suit was fixed for hearing on 15th July,
1981, on which date B appeared in the court but A was unable to attend and the suit was dismissed in
default. On the 10th December 1981, B died leaving behind his widow C. In January 1982, A brought
a suit against C alleging the she is in illegal possession of the house and praying that a decree for
possession he passed against her. Advise C if the suit is barred. Give reasons.
Ans. After having gone through the facts of case in hand following issue is framed:- Whether A's suit
against C (B's wife) is on the same cause of action, as was A's earlier suit against B which dismissed
in default. Order 9 Rule 8 of C.P.C. provides that where the defendant appears and plaintiff does not
appear and the defendant does not admit the plaintiff's claim wholly or partly, the court shall pass an
order dismissing the suit.
Order 9 Rule 9 C.P.C. then provide -
(1) Where a suit is wholly or partly dismissed under Rule-8 the plaintiff shall be precluded from
bringing a fresh suit in respect of same cause of action. But he may apply for an order to set the
dismissal aside and if he satisfies the court that there was sufficient cause for his non-
appearance when the suit was called on for hearing, the court shall make an order setting aside
the dismissal upon such terms as to costs or otherwise as it thinks fit and shall appoint a day for
proceeding with the suit."
So in view of provisions of Order 9 Rule 9 second suit can not be brought when first has been
dismissed under Rule 8, on same cause of action. In the case in hand, it is admitted fact that A's
earlier suit against B was for possession on the ground that B was trespasser. That suit was
dismissed under Order 9 Rule 8 as A could not appear in court on 15th July 1981. So A is precluded
from bring a suit again on same cause of action in view of Order 9 Rule 9.
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The expression "Cause of Action" means all those facts which are necessary for a plaintiff to prove in
a suit to get judgment of court in his favour or every one of those facts which if not proved would give
the defendant the right of judgment of court. In Mohd. Khallil Khan and Others v. Mehbub Ali Mian
75 I.A. 121 the Privy Council had observed:-
"In considering whether the cause of action in subsequent suit is the same or not as the cause of
action in previous suit the tests to be applied is: are the causes of action in two suits in substance -
not technically - identical." In case in hand plaintiff À' had filed the earlier suit for possession of
house against B, which was dismissed in default. Thereafter A never filed any application for setting
aside the order of dismissal of suit. Later B died leaving behind his widow `C'. A has again filed suit
against C for possession of that very house on the ground that he is owner of suit property and widow
C is trespasser therein. Such suit attracts Art. 65 of Limitation Act and onus is on C to establish that
she was in adverse possession of said property. Now question is whether C can take the same plea
which B had taken in earlier, it is well established that the expression "the possession of defendant"
under Article 65 includes also the possession of person from or through whom the defendant derived
his liability to be sued and as such defendant is entitled to take his possession with that of his
predecessor-in-interest for the purpose of computing the statutory period of limitation.
Applying the aforesaid law to the facts of case in hand it is clear that defendant C is claiming her right
to adverse possession through her late husband B and the necessary conclusion is that the cause of
action in both the suits is same and thus present suit of A against C is barred by Order 9 Rule 9
C.P.C.
Q. 45 In an eviction proceedings, 27-5-1989 was fixed for evidence of landlord and 2-6-89 for
evidence of tenant. On 27-5-89 neither tenant nor his counsel appeared at hearing. The court
recorded evidence of landlord and passed ex-parte eviction order. Same day tenant applied for setting
aside the exparte order alleging that he was ill and his counsel had forgotten mentioning the case in
his diary. He filed his affidavit but did not file medical certificate and diary and affidavit of counsel. The
landlord rebutted his allegation on affidavit. Decide the application ?
Ans. Order 9 Rule 6 of Civil Procedure Code provides regarding ex-parte proceedings and lays down
that `Where plaintiff appears and defendant does not appear the plaintiff has to prove service of
summons on defendant. If service of summons is proved, the court may proceed ex-parte against
defendant and may pass decree in favour of plaintiff, if the plaintiff proves his case."
So when defendant has not appeared on date of hearing of case, and plaintiff appears and proves the
service of summons on defendant, then court can proceed with the case ex-parte and pass decree in
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favour of plaintiff, if he proves his case. The defendant against whom an ex-parte decree has been
passed has the following remedies:-
(a) He can apply to court by which such decree is passed to set it aside (Order 9 Rule 13).
(b) Prefer appeal against such decree (Section 96(2)).
(c) Apply for review (Order 47 and Section 114).
(d) File suit on ground of fraud.
That being the legal position, coming now to case in hand, it is admitted that 27-5-89 was fixed for
evidence of landlord and 2-6-89 was fixed for recording evidence of tenant. However on 27-5-89
defendant (tenant) did not appear nor his counsel appeared in court and thus court proceeded ex-
parte and after recording plaintiff's evidence passed exparte eviction decree against tenant on 27-5-
89. On that very day i.e. 27-5- 89 tenant applied under Rule 13 Order 9 for setting aside above said
ex-parte eviction decree on the ground that he was ill and his counsel had forgotten to mention the
case in his diary.
Rule 13 of Order 9 C.P.C. provides that if defendant satisfies the court that he was prevented by
"sufficient cause" from appearing on date of hearing of case, court will set aside decree passed
against him. However expression "sufficient cause" has not been defined. Thus every case has to be
seen in light of peculiar facts of case. Supreme Court recently in G.P. Srivastva v. R.K. Raizada AIR
2000 SC 1221 has held :-
"Under Order 9 Rule 13 C.P.C., an exparte decree passed against defendant can be set aside
upon the satisfaction of court that either summons were not duly served upon defendant or he
was prevented by "sufficient cause" from appearing when suit was called for hearing. Words
"was prevented by sufficient cause from appearing" must be liberally construed to enable the
court to do complete justice between parties. "Sufficient cause" for the purpose of O. 9 R. 13
CPC has to be construed as elastic expression for which no hard and fast Rule can be laid
down."
Keeping in view above observations, coming now to case in hand - Defendant has taken the plea that
he was lying ill on date of hearing of suit i.e. 27-5-89 for which he has filed Affidavit though has not
produced any Medical Certificate to substantiate his plea and it is also pleaded that his counsel forgot
to mention the case in Diary and therefore his counsel could not appear. To prove this fact, Affidavit of
counsel and diary is produced. Plaintiff by way of Affidavit has rebutted the plea taken by defendant.
Considering the facts and keeping in view the observations of Supreme Court in this regard it can be
said that defendant had a "sufficient cause" which prevented him from appearing in court on relevant
date. We should not insist on strict proof of fact of illness of defendant and thus his application under
Rule 13 of Order 9 C.P.C. deserves to be accepted and ex-parte eviction decree should be set aside.
Q. 46 Plaintiff could not reach the court on the date fixed, so his suit was dismissed for default.
Advise the plaintiff as to steps he should take.
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Ans. Order 9 Rule 8 C.P.C. provides : Where the defendant appears and the plaintiff does not appear
when the suit is called on for hearing, the court shall dismiss the suit, unless the defendant admits the
claim, or part thereof, in which case the court shall pass a decree accordingly.
Order 9 Rule 9 C.P.C. further provide : On such dismissal of the suit, the plaintiff is precluded from
bringing a fresh suit in respect of the same cause of action; but he may apply for an Order to set the
order of dismissal aside. The court shall, after issuing notice of the application to the other side and on
being satisfied that there was sufficient cause for non-appearance, set aside the dismissal on
payment of costs or on other terms as it thinks fit.
In Lakshmi Commercial Bank v. Hans Raj AIR 1981 P&H 228 it was observed:-
"In deciding whether a suit dismissed for default be restored, what has really to be considered is
whether the plaintiff was really trying to appear on the day fixed. If sufficient cause is shown by
the plaintiff for his non- appearance court may restore the suit. What is "sufficient cause"
depends upon facts and circumstances of each case and liberal and generous construction
should be adopted to advance the cause of justice and restoration should not ordinarily be
denied."
Q. 47 What is the provision of examination of the parties by the Court?
Ans. Order X of Code of Civil Procedure deals with the examination of parties by the court. Order 10
Rule-1 provides that the court shall, at the first hearing the suit, ascertain from each party or his
pleader whether he admits or denies such allegations or facts as are made in the plaint or in the
written statement, if any of the opposite party.
After the Amendment Act No. 46 of 1999 Rule 1A, 1-B and 1-C has been added in Order X of Code.
Rule-1A says "After recording the admission and denials, the court direct the parties to suit to opt
either mode of settlement outside the court as specified in sub-section (1) of Section 89. On the option
of the parties, the court shall fix the date of appearance before such forum or authority as may be
opted by the parties" and Rule 1-B says that parties shall appear before such forum or authority. Rule
1-C says that if the presiding officer of Conciliation forum or authority is satisfied that it would not be
proper in interest of justice to proceed with the matter he shall refer the matter again to the court.
Rule 2 provides for oral examination of the parties to the suit with a view to elucidating matters in
controversy in the suit. The court thus, ascertains with precision the propositions of law or fact on
which the parties are at variance and on such question issues are required to be framed. Rule-3 then
says that substance of the examination shall be reduced to writting by judge, which shall form part of
record. Then R-4 lays down the consequence of refusal or inability of pleader to answer and provides
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that where pleader or any person accompanying a pleader as referred to in Rule-2 refuses to or is
unable to answer any material question relating to suit which in opinion of court be answered by party,
court shall post-pone the hearing of suit and direct such party to appear in person on such date as
fixed.
Q. 48 What do you understand by `Discovery' what is its object and who can apply for it ?
Ans. Discovery Discovery means to compel the opposite party to disclose what he has in his
possession. Order XI of Code Civil Procedure deals with discovery and inspection. Discovery means
to find out material facts and documents from an adversary in order to ascertain nature of the case
and to narrow down the points in issue or to avoid proving admitted facts.
Kinds Of Discovery : Discovery is of two kinds
(i) Discovery by interrogatories;
(ii) Discovery documents.
(i) Discovery By Interrogatories ; Order XI Rule 1 of the Code of Civil Procedure deals with
discovery of interrogatories and it provides that in any suit the plaintiff or defendant, by leave of the
court, may deliver interrogatories in writing for the examination of the opposite parties or any one or
more of such parties, and such interrogatories when delivered shall have a note at the foot thereof
stating which of such interrogatories each of such person is required to answer :
Provided that no party shall deliver more than one set of interrogatories to the same party without
an order for that purpose :
Provided also that interrogatories which do not relate to any matter in question in the suit shall be
deemed irrelevant, notwithstanding that they might be admissible in the oral cross-examination of a
witness.
Rule 2 of Order XI of the Code of Civil Procedure provides that on an application for leave to deliver
interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the court.
In deciding upon such application, the court shall take into account any offer, which may be made by
the party sought to be interrogated to deliver particulars, or to make admissions, or to produce
documents releating to the matters in question, or any of them, and leave shall be given as to such
only of the interrogatories has been laid down in Raj Narain v. Indira Gandhi, AIR 1972 SC 1302, it
was observed that interrogatories can be allowed whenever the answer to them will serve either to
prove the case of party administering tthe interrogatories or to destroy the case of his adversary. The
right is a valuable one and the party should not lightly be deprived of that right and must be exercised
liberally as to shorten litigation, save expenses and serve the ends of justice.
Rule 6 of Order XI of the Code of Civil Procedure deals with the objections to interrogatories. It
provides that any objection to answer any interrogatory on the ground that it is scandalous or
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irrelevant or not exhibited bonafide for the purpose of the suit, or that the matters inquired into are not
sufficiently material at that stage, (or on the ground of privilege, of on any other ground) may be taken
in the affidavit in answer. According to Rule 8 of Order XI of the Code interrogatories shall be
answered by affidavit to be filed within 10 days or within such other time as the court may allow.
Discovery of documents ; Rules 12 to 14 of Order XI of the Code of Civil Procedure deal with the
discovery of documents. All documents relating to the matters in issue in the possession or power of
any adversary can be inspected by means of discovery of documents.
Rule 12 of Order XI of the Code of Civil Procedure provides that any party may, without filing any
affidavit, apply to the court for an order directing any other party to any suit to make discovery on oath
of the documents which are or have been in his possession or power, relating to any matter in
question therein. On the hearing of such application the court may either refuse or adjourn the same,
if satisfied that such discovery is not necessary or not necessary at the stage of the suit, or make such
order, either generally or limited to certain classes of documents, as may in its discretion to thought fit,
provided that discovery shall not be ordered when and so far as the court shall be opinion that it is not
necessary either for disposing fairly of the suit or for saving costs.
Rule 13 of Order XI of the Code of Civil Procedure provides that the affidavit to be made by a party
against whom an order for making discovery of documents is made by the court shall specify which of
the documents therein mentioned he objects to produce and it shall be in Form No. 5 in Appendix C,
with such variations as circumstances may require. It has further been provided in Rule 14 of the said
Order that it shall be lawful for the court, at any time, during the pendency of any suit, to order the
production by any party thereto, upon oath, of such of the documents in his possession or power,
relating to any matter in question in such suit, as the court shall think right; and the court may deal
with such documents, when produced, in such manner as shall appear just.
Q. 49 What is meant by "issue" and how they are to be framed ?
Ans. Order 14 of the Code of Civil Procedure deals with settlement of issues and determination of suit
on issues of law on issues agreed upon. Rule 1 of Order of the Code of Civil Procedure provides that
issues arise when a material proposition of fact or law is affirmed by the one party and denied by the
other. Material propositions are those propositions of law or fact which a plaintiff must allege in order
to constitute his defence. Such material proposition affirmed by one party and denied by the other
shall form the subject of a distinct issue.
According to sub-rule (4) of Rule 1 of Order 14 of the Code of Civil Procedure, issues are of two kinds
:-
(a) issues of fact
(b) issues of law
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Sub-rule (5) of Rule 1 of Order 14 of the Code of Civil Procedure further provides that at the first
hearing of the suit, the court shall, after reading the plaint and the written statements, if any, and (after
examination under Rule 2 of Order X and after hearing the parties or their pleaders) ascertain upon
what material propositions of fact or of law, the parties are at variance, and shall thereupon proceed to
frame and record those issues on which the right decision of the case appears to depend.
In Sita Ram v. Radha Bai, AIR 1964 SC 497, it was observed that "issues" are the backbone of a
suit. Framing of issue has a very important bearing on the trial and decision of case. Firstly because it
is issues framed and not the pleadings that guide the parties in matter of leading evidence. Secondly
the court cannot refuse to decide the point on which issue has been framed. Thirdly court should not
frame issue which does not arise in pleadings.
MATERIALS FOR FRAMING ISSUES According to Order 14 Rule 3 of the Code the court may frame
the issues from all or any of the following materials :-
(a) allegations made on oath by the parties, or by any person present on their behalf, or made by
the pleaders of such parties ;
(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit ;
(c) the contents of documents produced by either party :
In addition to the said material the other material which may be considered in framing issues are the
answer to interrogatories statements made by parties or their representatives, when examined under
Order X of the Code of Civil Procedure and examination of a witness or any document ordered to be
produce under Order XIV of the Code of Civil Procedure. Rule 4 of order XIV of the Code of Civil
Procedure provides that where the Court is of opinion that the issues cannot be correctly framed
without the examination of some person not before the Court or without the inspection of some
document not produced in the suit, it may adjourn the framing of the issue to a future day, and may
(subject to any law for the time being in force) compel the attendance of any person or the production
of any document by the person in whose possession or power it is, by summons of other process.
Q. 50 What is the effect of omission of framing an issue ? Whether a court is empowered to amend
or strike out an issue?
Ans. Omission to Frame Issue In Kewal Krishan v. Dina Nath, AIR 1993 SC 881, it was observed
that even though it is the duty of the court to frame proper issues, mere omission to frame an issue is
not necessarily fatal to the suit. Omission to frame an issue is an irregularity which may or may not be
a material one. If such omission affects the disposal of the suit on merits, the case must be remanded
to the trial court for a fresh trial. On the other hand, where the parties went to trial with full knowledge
that a particular point was at issue, they have not been prejudiced and substantial justice has been
done, absence of an issue is not fatal to the case so as to vitiate the proceedings.
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Power to amend and strike out issue Rule 5 of order 14 of the Code of Civil Procedure deals with
this power of the court. It provides that the Court may, at any time before passing a decree, amend the
issue or frame additional issues on such terms as it thinks fit, and all such amendment or additional
issues as may be necessary for determining the matters in controversy between the parties shall be
so made or framed.
The court may also, at any time before passing a decree, strike out any issues that appear to it to be
wrongly framed or introduced.
Q. 51 Is there any penalty in case of default of attendance of witness on the issue of summons ?
What are the consequences of refusal of a party to give evidence ?
Ans. The court has power to enforce the attendance of any person to whom a summons has been
issued and for that purpose may -
(a) issue a warrant, with or without bail, for his arrest;
(b) attach and sell his property;
(c) impose a fine upon him not exceeding Rs. 500; or
(d) order him to furnish security for his appearance and in default commit him to civil prison.
The court may, where a person to whom summons has been issued fails to comply with it, without
lawful excuse, issue a proclamation requiring him to attend at a time and place named therein before
inflicting the penalities mentioned above.
No court of small causes shall, however, make an order for the attachment of immovable property.
(Order 16, Rule 10)
Where the person appears after the attachment of his property and satisfies the court that he did not
fail to comply with the summons without lawful excuse or did not intentionally avoid service, or that he
had no notice of the proclamation, the court may release the property from attachment.
If the person, however, does not appear or appears but fails to satisfy the court, the court may impose
upon him fine not exceeding Rs. 500, having regard to his condition in life and the circumstances of
the case and attach and sell his property for the recovery of the same. (Order 16, Rules 11 and 12).
Consequence of refusal of party to give evidence - Where any party to a suit present in court
refuses, without lawful excuse, when required by the Court, to give evidence or to produce any
document, then and there in his possession or power, the court may pronounce judgment against him
or make such order in relation to the suit as it thinks fit. (Order 16, Rule 20)
Q. 52 When can adjournment be granted by court and what are the consequences of failure of a
party to produce evidence for which an adjournment was granted by court ?
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Ans. Order 17 Rule 1(i) of Code of Civil Procedure provides that court may, if sufficient cause is
shown, at any stage of the suit, grant time to the parties or to any of them and may from time to time
adjourn the hearing of the suit for reasons to be recorded in writting.
Vide Amendment Act No. 46 of 1999 a proviso is attached to Rule 1(i) which says -
"No such adjournment shall be granted more than three times to a party during hearing of the
suit."
So right of adjournment on showing sufficient cause has been limit to three times, so that suit may be
dispossed off expeditiously and no party to suit should seek adjournment as a delaying tactic.
Sub-rule (2) of Rule 1 of Order 17 of the Code of Civil Procedure further provides that in every such
case the court shall fix a day for the further hearing of the suit; and may make such order as it thinks
fit with respect to the costs occasioned by the adjournment.
Order 17 Rule 3 of the Code of Civil Procedure deals with the power of the court to proceed with the
case, notwithstanding either party fails to produce evidence. It provides that where any party to a suit
to whom time has been granted fails to produce his evidence, or to cause the attendance of his
witnesses, or to perform any other act necessary to the further progress of the suit, for which time has
been allowed, the court may, notwithstanding such default -
(a) if the parties are present, proceed to decide the suit forthwith; or
(b) if the parties are, or any of them is absent, proceed under Rule 2.
The main distinction between rule 2 and 3 of Order XVII of the Civil Procedure Code is that a decree
passed against the defendant under Rule 3 will not be an exparte decree which can be set aside
under Order IX Rule 13 of the said Code while a decree passed under Rule 2 can be set aside under
Order IX rule 13 of the Code if the necessary requirements are fulfilled.
Q. 53 Who has the right to begin the evidence at the hearing of the suit ? Discuss the important
amendment brought about in Order 18 of Code, in this regard.
Ans. Order 18 of Code of Civil Procedure deals with hearing and examination of witnesses. Order 18
Rule 1 of Code says that "The plaintiff has right to begin unless the defendant admits the facts alleged
by the defendant and contends that either in point of law or on some additional facts alleged by the
defendant, the plaintiff is not entitled to any part of the relief which be seeks, in which case the
defendant has the right to begin."
It has further been provided in Rule 2 of Order XVIII of the Code of Civil Procedure that on the date
fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having
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the right to begin shall state his case and produce his evidence in support of the issues which he is
bound to prove. The other party shall then state his case and his evidence, if any, and any then
address the court generally on the whole case and the party beginning may then reply generally on
the whole case.
Sub-rule (4) of Rule 2 of Order 18 of the Code of Civil Procedure, which has been inserted by the
Amendment Act No. 104 of 1976, provides that notwithstanding anything contained in this rule, the
court may, for reasons to be recorded, direct or permit any party to examine any witness at any stage.
Rule-4 of Order 18 has been amended vide Amendment Act of 2002. Rule-4(i) of Order 18 says "In
every case the examination-in-chief of a witness shall be on affidavit and copies thereof shall be
supplied to the opposite party, by the party who calls him for evidence;
Provided that where documents are filled and the parties rely upon the documents, the proof and
admissibility of such documents which are filled along with affidavit shall be subject to the order
of the court."
So in order to expedite the trial of suit, provision for furnishing examination-in-chief of witnesses on
affidavit has been made. Rule 4(2) says : The evidence (cross-examination and re-examination) of the
witness in attendance, whose evidence (examination-in-chief) by affidavit has been furnished to the
court, shall be taken either by the court or by the commission appointed by it :
Provided that the court may, while appointing a commission under this sub- rule, consider taking
into account such relevant factors as it thinks fit."
Q. 54 What is a judgment pronounced and when it may be altered or modified ? What are its
contents ? Is there any time limit for pronouncing judgment ?
Ans. Section 33 of Code of Civil Procedure provides that the court, after the case has been heard
shall pronounce judgment and on such judgment a decree shall follow.
Order 20 of Code of Civil Procedure deals with Judgment and Decree. Vide Amendment Act No. 22 of
2002 in Rule 1 of Order 20, Sub-rule (1) has been amended in following words.
"(1) The Court, after the case has been heard, shall pronounce judgment in an open Court, either at
once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on
some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the
parties or their pleaders :
Provided that where the judgment is not pronounced at once, every endeavour shall be made by
the Court to pronounce the judgment within thirty days from the date on which the hearing of the
case was concluded but, where it is not practicable so to do on the ground of the exceptional and
extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement
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of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on
which the hearing of the case was concluded and due notice of the day so fixed shall be given to
the parties or their pleaders".
So maximum time limit for pronouncing the judgment after hearing of the case is 60 days. Rule 1(2) of
Order 20 says where a written judgment is to be pronounced, it shall be sufficient if the findings of the
court on each issue and final orders passed in the case are read out and it shall not be necessary for
the court to read out whole judgement.
When Judgement may be Altered or Modified
Order 20 Rule 3 of C.P.C. provides -
"The judgment shall be dated and signed by the in open court at the time of pronouncing it and
when once signed, shall not after wards be altered or added, save -
(a) to correct clerical or arithmetical mistakes or error due to accidental slips or omission (Section 152
C.P.C.)
(b) On Review (Section 114 C.P.C.)
So any alteration or addition in judgment is permissible so long as it is not signed by the Judge in
open court, once it is signed no alteration or addition can be done except to correct clerical or
arithmetical mistakes or accidental slips as contemplated under section 152 of Code or upon Review
Recently In Jaya Laxami Coelho v. Oswald Josph Coelho, AIR 2001 SC 1084 Supreme Court
observed :
"In terms of Section 152 C.P.C. any error occurred in the decree on account of airthmetical or
clerical error or accidental slip may be rectified by court..........In a matter where it is clear that
something which court intended to do but the same was accidently slipped or any mistake creeps
in due to clerical or arithmetical mistake, it would only advance the end of justice to enable to
rectify such mistake. But before exercise of such power the court must be legally satisfied, that
court must have in its mind that Decree or Order should be passed in particular manner but that
intention is not translated into the Decree or Order due to clerical, arithmetical error or accidental
slip."
CONTENTS OF JUDGEMENT Order Rule 4 of the Code of Civil Procedure deals with the contents of
the judgment also. Sub-rule (2) of Rule 4 of Order, 20 of the Code of Civil Procedure provides that
judgments of courts, other than Small Cause Court, shall contain -
(a) a concise statement of the case,
(b) the points for determination,
(c) the decision thereon and
(d) the reasons for the decision.
Sub-rule (1) of Rule 4 of Order 20 of the Code of Civil Procedure also provides that judgments of a
Court of Small Causes shall not contain more than the points for determination and the decision
thereon.
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Rule 5 of the said Order also provides that in suits in which issues have been framed, the court shall
state its finding or decision with the reasons therefor, upon each separate issue, unless the finding,
upon any one or more of the issues, is sufficient for the decision of the suit.
Rule 5-A of the said Order which has been inserted by Amendment Act No. 104 of 1976, also lays
down that except where both the parties are represented by pleaders, the court shall, when it
pronounces its judgment in a case subject to appeal, inform the parties present in court as to the court
to which an appeal lies and the period of limitation for the filling of such appeal and place on record
the information so given to the parties.
Rule 6-A (1) of the said Order also lays down that the last paragraph of the judgment shall state in
precise terms the relief which has been granted by such judgment.
Q. 55 What are the provisions of Code of Civil Procedure relating to Cost ?
Ans. Question of imposing costs in Civil proceeding is entirely on the discretion of the court. Rules as
to costs is subject to provisions of Code of Civil Procedure.
KINDS OF COSTS The Code of Civil Procedure provides for four kinds of costs:
(1) General costs - Section 35 ;
(2) Miscellaneous costs - Order 20-A ;
(3) Compensatory costs for false or vexatious claims or defences - Section 35-A ; and
(4) Costs for causing delay - Section 35-B.
(1) General costs : Section 35
(a) Object. - Section 35 deals with general costs. The object in awarding costs to a litigant is to secure
to him the expenses incurred by him in the litigation. It neither enables the successful party to make
any profit out of it nor punishes the opposite party.
(b) Principles. - The primary rules in respect of award of general costs are as under :
(i) Costs are in the discretion of the court. The said discretion, however, must be exercised on
sound legal principles.
(ii) Normally, costs should follow the event and the successful party is entitled to costs unless
there are good grounds for depriving him of that right. Even a successful party may be deprived
of the costs if he is guilty of misconduct or there are other reasons to do so. Sub-section (2) of
Section 34, however, expressly provides that when the court orders that costs should not follow
the event, it must record reasons for doing so.
(2) Miscellaneous costs : Order 20-A
Order 20-A makes specific provision with regard to the power of the court to award costs in respect of
certain expenses incurred in giving notices, typing charges, inspection of records, producing
witnesses and obtaining copies.
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(3) Compensatory costs : Section 35-A

(a) Object. - Section 35-A provides for compensatory costs. This section is an exception to the
general rule on which Section 35 is based; viz. that the "costs are only an indemnity, and never more
than indemnity". This section is intended to deal with those cases in which Section 35 does not afford
sufficient compensation in the opinion of the court. Under this provision, if the court is satisfied that the
litigation was inspired by vexatious motive and altogether groundless, it can take deterrent action. This
section applies only to suits and not to appeals or to revisions.
(b) Conditions. - The following conditions must exist before this section can be applied :
(1) the claim or defence must be false or vexatious ;
(2) objections must have been taken by the other party that the claim or defence was false or
vexatious to the knowledge of the party raising it ; and
(3) such claim must have been disallowed or withdrawn or abandoned in whole or in part.
The maximum amount that can be awarded by the court is Rs 3000.
(4) Costs of causing delay : Section 35-B
Section 35-B is added by the Amendment Act of 1976. It is inserted to put check upon the delaying
tactics of the litigating parties. It empowers the court to impose compensatory costs on the parties
who are responsible for causing delay at any stage of the litigation. Such costs would be irrespective
of the ultimate outcome of the litigation. The payment of costs has been a condition precedent for
further prosecution of the suit, if the party concerned is a plaintiff and the defence, if he is a defendant.
The provisions of this section are mandatory in nature and, therefore, the court should not allow
prosecution of suit or defence, as the case may be, in the event of party failing to pay costs as
directed by the court. If however the party is unable to pay costs due to unavoidable circumstances
such as strike of advocates or staff, etc., court can extend the time.
Q. 56 When do the execution proceeding begin and is the notice for execution necessary ? If so,
when ?
Ans. Execution :- Term Èxecution' has not been defined in Code of Civil Procedure. However
expression "Execution" means enforcement of decrees and orders by the process of the court, so as
to enable the decree holder to realise the fruits of the decree. Section 38 of Code says "A decree may
be executed either by the court which passed it or by the court to which it is sent for execution.
Section 37 defines the expression" court which passed the decree". Section 37 has given widest
possible defination of above said expression to facilitate the decree holder to realise the fruits of
decree passed in his favour. As per Section 37 following courts fall within the expression "Court which
passed the decree" :-
(i) Court of first instance by which decree is actually passed;
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(ii) The court of first instance in the case of decree passed by appellate court;
(iii) Where the court of first instance has ceased to exist the court which would have jurisdiction
to try the suit at the time of execution;
The execution proceedings can be started only after the delivery of judgment by the court and
preparation of the decree. All proceedings in execution are started by an application for execution
which can be oral or written, as the case may be.
Rules 10 and 11 of Order XXI of the Code of Civil Procedure deal with the applications for execution.
Rule 10 provides that where the holder of a decree desires to execute it, he shall apply to the court
which passed the decree or to the officer (if any) appointed in this behalf, or if the decree has been
sent under the provisions herein before contained to another court, then, to such court or to the proper
officer thereof.
Rule 11(1) of the said Order deals with the oral application for execution and it lays down that where a
decree is for the payment of money, the court may, on the oral application of the decree-holder at the
time of the passing of the decree, order immediate execution thereof by the arrest of the judgment
debtor, prior to the preparation of a warrant, if he is within the precincts of the court.
Then Sub-rule (2) to Rule 11 of Order 21 of Code says that save as otherwise provided by sub-rule
(1), every application for the execution of a decree shall be in writting signed and verified by the
applicant and shall contain particulars as provided in sub-rule (2)
Rules 11-A to 13 of Order 13 deal with certain specific applications for execution. Rule 11-A provides
that where an application is made for arrest and detention of judgment debtor, it shall state, or be
accompanied by an affidavit, stating the grounds on which arrest is applied for. Rule 12 deals with
application for attachment of moveable properties not in possession of judgment debtor, which require
decree holder to attach with application, an inventory of property and their accurate descriptions Rule-
13 of Code then deals with application for attachment of immovable properties belonging to judgment
debtor and it also requires that application shall contain full description of property with boundaries
etc. for proper identification and also proof of judgment debtor's ownership or his share in it.
Notice of execution Notice is not to be issued to the party against whom execution application is filed
in every case but only in certain cases mentioned in Rule 22 of Order XXI of the Code of Civil
Procedure. According to it, show cause notice is to be issued in the following cases :-
(i) Where an application for execution is made more than two years after the date of decree;
(ii) Where an application for execution is made against the legal representative of a party to the
decree or where an application is made for execution of a decree filed under the provisions of
Section 44-A of the Code of Civil Procedure;
(iii) Where an application for execution is made against the assignee or receiver in insolvency
where the party to the decree has been adjudged to be an insolventy.
Show cause notice can also be issued by the Court if the execution has been sought by arrest and
detention of the judgment-debtor in view of the provisions of Order XXI Rule 37 of the Code of Civil
Procedure.
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Q. 57 Comment on the statement that an execution court cannot go behind the decree.
Ans. Term Èxecution' has not been defined in C.P.C. Execution is enforcement of decree and order
by process of the court, so as to enable the decree holder to realise the fruits of decree. Section 38 of
C.P.C. lays down that a decree may be executed either by the court which passed it or by court to
which it is sent for execution. Section 37 define the expression "court which passed a decree" and
enlarge the scope of expression "court which passed a decree" so as to facilitate the decree holder
to realise the fruits of decree passed in his favour.
One of the most important Rule regarding the "Execution" is that: It must take the decree as it stands
and execute according to its terms. It has no power to vary or modify the terms. It has no power to
question its legality or correctness, no inquiry into its regularity or correctness can be permitted in
such a proceeding. Section 47 of CPC is important provision in this regard which lays down as to
which questions are to be determined by court executing the decree. It provides :
"(1) All questions arising between the parties to the suit in which the decree was passed or their
representatives and relating to execution, discharge or satisfaction of decree shall be determined
by court executing the decree not by a separate suit.
(2) (* * * *)
(3) Where a question arises as to whether any person is or is not representative of a party, such
question shall, for the purpose of this Section be determined by the court.
Explanation I - For the purposes of this Section , a plaintiff whose suit has been dismissed and a
defendant against whom a suit has been dismissed are parties to the suit.
Explanation II - (a) For the purposes of this Section , a purchaser of property at a sale in execution of
a decree shall be deemed to be a party to the suit in which the decree is passed; and
Explanation II (b) all questions relating to the delivery of possession of such property to such
purchaser or his representative shall be deemed to be questions relating to the execution, discharge
or satisfaction of the decree within the meaning of this Section .
The underlying object of this provision is to provide cheap and expeditious remedy for determination
of certain questions in execution proceedings without recourse to a separate suit and to prevent
needless and unnecessary litigation.So the executing court can go into all question between the
parties relating to execution, discharge or satisfaction of decree and as such court has no power to
amend, modify or substitute a decree or in other words can not go behind the decree.
Although An executing court cannot go behind the decree nor can it question its legality or
correctness. But there is one exception to this general Rule and that is that where the decree sought
to be executed is nullity for the lack of inherent jurisdiction in court passing it its invalidity can be set
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up in an execution proceeding. The executing Court can therefore entertain an objection that the
decree is nullity and can refuse to execute the decree.
In Kiran Singh v. Chaman Paswan, AIR 1954 SC 340,it was observed: It is a fundamental principle
well established that a decree passed by a court without jurisdiction is a nullity, and that is invalidity
could be set up whenever and wherever it is sought to be enforced or relied upon even at the stage of
execution and even in collateral proceedings.
Q. 58 What is the effect of a decree passed in favour of a dead person ?
Ans. Decree passed in favour of a dead person. - Where the court proceeds with the case in
ignorance of the fact of death of a person and passes a decree, that decree cannot be treated as a
nullity. It may, no doubt, be a wrong decree, but it will have to be set aside by taking appropriate
proceedings like appeal, revision or review. Generally speaking, a decree passed in favour of a dead
person is not a nullity, though a decree passed against a dead person can be construed as a nullity.
Even if there is abatement of the suit, that would not make the decree passed in the suit as one
without jurisdiction and the executing court is not entitled to refuse to execute the decree on the
ground that the plaintiff was not alive on the date when the decree was passed in his favour.
Q. 59 A is survived by his widow, daughter, sister and four brothers. On a partition suit filed by B,
one of the brothers of deceased A, the disputed property fell to the share of C, the daughter of A.
During the pendency of partition suit filed by B, B was appointed receiver of entire estate of A. In this
capacity B inducted D as a tenant and took some advance from D but the possession of whole of
leased premises was not given to D. So D filed suit against B for recovery of amount of advance. This
suit was decreed against B and his estate. In execution of this decree D purchased the suit land
belonging to C in auction and then transferred it to some other persons without any notice to B.
C filed suit for recovery of possession of her land. Suit was resisted by D and his transferee on the
ground inter-alia that same is barred by Section 47 C.P.C. decide whether the bar created by Section
47 C.P.C. will apply to suit filed by C.
Ans. Section 47 of the Code reads as under:

(1) All questions arising between the parties to the suit in which the decree was passed, or their
representatives, and relating to the execution, discharge or satisfaction of the decree, shall be
determined by the court executing the decree and not by a separate suit.
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(2) * * *
(3) Where a question arises as to whether any person is or is not the representative of a party,
such question shall, for the purposes of this Section, be determined by the court.
Explanation I - For the purposes of this Section, a plaintiff whose suit has been dismissed and a
defendant against whom a suit has been dismissed are parties to the suit.
Explanation II (a) For the purposes of this Section, a purchaser of property at a sale in execution of a
decree shall be deemed to be a party to the suit in which the decree is passed; and
Explanation II(b) all questions relating to the delivery of possession of such property to such
purchaser or his representative shall be deemed to be questions relating to the execution, discharge
or satisfaction of the decree within the meaning of this Section .
The underlying object of this provision is to provide cheap and expeditious remedy for determination
of certain questions in execution proceedings without recourse to a separate suit and to prevent
needless and unnecessary litigation.
In order that this Section may apply, the following conditions must be satisfied -
(i) the question must be one arising between the parties to the suit in which the deree is passed,
or their representatives; and
(ii) it must relate to the execution, discharge or satisfaction of the decree.
In the case in hand, during pendency of partition suit, B was appointed as receiver of estate of A and
in that capacity B inducted D as tenant to suit land which fell in the share of C. B had taken advance
from D, when D could not get the possession of leased property. D filed suit against B which was
decreed against B and his estate and not against the estate of A, therefore suit property which had fell
in share of C (A's daughter) did not come in B's estate. In the execution of decree passed against B,
share of C was not liable for satisfaction of said decree. It is also important that suit filed by D for
recovery of advanced by him, against B, C was not party in that suit. Therefore, none of the above
said conditions apply for application of Section 47 C.P.C. Therefore suit of C is not barred by Section
47.
Q. 60 When can a decree holder apply to get the decree transferred to another court for execution
Ans. Transfer of the decree - Section 39 of the Code of Civil Procedure deals with the transfer of
decree. It provides that the Court which passed the decree may, on the application of the decree
holder, send it for execution to another court of competent jurisdiction -
(a) if the person against whom the decree is passed actually and voluntarily resides or carries on
business, or personally works for gain, within the local limits of the jurisdiction of such other
court, or
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(b) if such person has no property within the local limits of the jurisdiction of the court which
passed the decree, sufficient to satisfy such decree and has property within the local limits of the
jurisdiction of such other court, or
(c) if the decree directs the sale or delivery of immovable property situate outside the local limits
of the jurisdiction of the court which passed it, or
(d) if the court which passed the decree considers for any other reason, which it shall record in
writing, that the decree should be executed by such other court.
The Court which passed a decree, may of its own motion send it for execution to any subordinate
court of competent jurisdiction.
For the purposes of this section, a court shall be deemed to be a court of competent jurisdiction if, at
the time of making the application for the transfer of decree to it, such court would have jurisdiction to
try the suit in which such decree was passed.
Powers of the Court to which a decree is transferred for execution Section 42 of the Code of Civil
Procedure deals with the powers of transferee court. It provides that the court executing a decree sent
to it shall have the same powers in executing such decree as if it had been passed by itself. All
persons disobeying or obstructing the decree shall be punishable by such court in the same manner
as if it had passed the decree. Section 42(2) of Code says powers of transferee court shall include the
following powers of the court which passed the decree, namely :-
(a) Power to send decree for execution to another court under section 39
(b) Power to execute the decree against the legal representative of the deceased judgment
debtor under section 50
(c) Power to order attachment of a decree
According to Section 42(4) of Code, transferee court cannot exercise the following power :-
(a) Power to order execution at the instance of the transferee of the decree
(b) in the case of decree passed against a firm, power to grant leave to execute such decree
against any person other that such a person as is referred to in clause (b) or (c) of sub-rule (1) of
Rule 50 of Order 21.
Q. 61 Discuss the provisions relating to arrest and detention in civil prison in execution of a decree.
Ans. Arrest and detention in execution of a decree - One of the modes of executing decrees is
arrest and detention in civil prison of the judgment-debtor. Sections 55 to 59 and Rules 37 to 41 of
Order 21 deal with arrest and detention of the judgment-debtor in civil prison. Section 55 provides that
a judgment debtor may be arrested in execution of a decree at any hour and on any day, and shall, as
soon as practicable, be brought before the court, and his detention may be in the civil prison of the
district in which the court ordering the detention is situate, or where such civil prison does not afford
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suitable accommodation in any other place which the State Government may appoint for the detention
of persons ordered by the courts of such district to be detained, except that :
Procedure
(i) for the purposes of making an arrest under this section, no dwelling house shall be entered
after sunset and before sunrise;
(ii) no outer door of a dwelling house shall be broken open unless such dwelling house is in the
occupancy of the judgment debtor and he refuses, or in any way prevents access thereto, but
when the officer authorised to make the arrest has duly gained access to any dwelling house, he
may break open the door of any room in which he has reason to believe the judgment debtor is
to be found :
(iii) if the room is in the actual occupancy of a woman who is not the judgment-detor and who,
according to the customs of the country, does not appear in public, the officer authorised to make
the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a
reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter
the room for the purpose of making the arrest.
(iv) where the decree in execution of which a judgment debtor is arrested, is a decree of the
payment of money and the judgment debtor pays the amount of the decree and the costs of the
arrest to the officer arresting him, such officer shall at once release him.
Order XXI Rule 37 of the Code of Civil Procedure deals with the discretionary power of the court to
issue Show Cause Notice to the judgment debtor against detention in prison. It provides that where an
application is for the execution of a decree for the payment of money by the arrest and detention in
the civil prison of a judgment debtor who is liable to be arrested in pursuance of the application, the
Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before
the court on a day to be specified in the notice and show cause why he should not be committed to
the civil prison. Provided that such notice shall not be necessary if the court is satisfied by affidavit, or
otherwise, that with the object or effect of delaying the execution of the decree, the judgment debtor is
likely to abscond or leave the local limits of the jurisdiction of the court.
Sub-section (2) Rule 37 lays down that where appearance is not made in obedience to the notice, the
court shall, if the decree holder so requires, issue a warrant for the arrest of the judgment debtor.
Sub-section (3) of section 55 of the Code of Civil Procedure also lays down that where a judgment
debtor is arrested in execution of a decree for the payment of money and brought before the court, the
court shall inform him that he may apply to be declared an insolvent, and that he may be discharged if
he has not committed any act of bad faith regarding the subject of the application and if he complies
with the provisions of the law of insolvency for the time being in force.
Section 56 of the Code of Civil Procedure provides that a woman shall not be arrested in execution of
decree in payment of money.
Section 57 of the Code of Civil Procedure deals with the subsistence allowance payable by the decree
holder for the subsistence of the judgment debtor. According to it, the State Government may fix
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scales graduated according to rank, race and nationality of such monthly allowance.
Period of Detention Section 58 of the Code of Civil Procedure deals with the period of detention.
According to it every person detained in the civil prison in execution of a decree shall be so detained -
(a) where the decree is for the payment of a sum of money exceeding one thousand rupees, for
a period not exceeding three months, and
(b) where the decree is for the payment of a sum of money exceeding five hundred rupees, but
not exceeding one thousand rupees, for a period not exceeding six weeks.
How Released
Provided that he shall be released from such detention before the expiration of the said period of
detention -
(i) On the amount mentioned in the warrant for his detention being paid to the officer incharge of the
civil prison or
(ii) On the decree against him being otherwise fully satisfied or
(iii) On the request of person on whose application he has been so detained or
(iv) On omission to pay subsistence allowance by person on whose application he was so detained
Provided also that he shall not be released from such detention under clause (ii) or (iii) without
the order of the court.
Q. 62 What is a "Garnishee Order" and how is it enforced ?
Ans. Garnishee is a person who is liable either to pay debt to a judgment-debtor or account for any
movable property not in the possession of the judgment-debtor. The Garnishee Order is an order
issued to such a person not to pay back to the judgement debtor but to the Court. The debt must be
one other than a debt secured by a mortgage, a charge, a negotiable instrument, or a debt recovered
only in a revenue court.
A garnishee order is an order which a court is authorised to make against a garnishee-judgment
debtor' requiring him to pay or deliver in court the amount due from or the property deliverable by him
to the judgment-debtor or so much as may be sufficient to satisfy the decree and the cost of
execution.
The Court may in the case of debt (other than a debt secured by a mortgage or a charge) which has
been attached under Rule 46 (attachment of a debt, share and other property not in possession of the
judgment-debtor), upon the application of the attaching creditor, issue notice to the garnishee liable to
pay such debt, calling upon him either to pay into court the debt due from him to the judgment-debtor
or so much thereof as may be sufficient to satisfy the decree and costs of execution, or to appear and
show cause why he should not do so.
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Where the garnishee pays in the court the amount due from him to the judgment-debtor or so much
thereof as is sufficient to satisfy the decree and the costs of the execution, the court may direct that
the amount may be paid to the decree-holder towards satisfaction of the decree and costs of the
execution. (Order 21, Rule 46-A).
Where the garnishee does not forthwith pay into court the amount due from him to the judgment-
debtor or so much thereof as is sufficient to satisfy the decree and the costs of execution, and does
not appear and show cause in answer to the notice the court may order the garnishee to comply with
the terms of such notice, and on such order, execution may issue as though such order were a decree
against him. (Order 21, Rule 46-B).
Where the garnishee disputes liability, the court may order that any issue or question necessary for
the determination of liability shall be tried as if it were an issue in a suit, and upon the determination of
such issue shall make such order or orders as it deems fit. (Order 21, Rule 46-C).
Q. 63 Explain the law relating to attachment of salary or allowances of servant of Government or
railway company or local authority.
Ans. Attachment of salary of public officer, etc. - Accordint to Order 21 Rule 48 the court can order
that the amount which not liable to attachment and sale in execution of a decree as per section 60 of
CPC, be withheld from such salary or allowances either in one payment or by monthly instalments.
The officer or the person whose duty is to disburse shall then withhold and remit to the court the
amount due under the order or the monthly instalment, as the case may be. (Section 60, Order 21 and
Rule 48).
Attachment of salary of private employees. - Order 21, Rule 48-A of the Code of CPC provides that
where th property to be attached is the salary or allowances of an employee to whom Rule 48 applies,
is within the local limits of the court's jurisdiction, may order that the amount shall, subject to the
provisions of Section 60, be withheld from such salary or allowances either in one payment or by
monthly instalments as the court may direct, and upon notice of the order to such disbursing officer,
such disbursing officer shall remit to the court the amount due under the order, or the monthly
instalments, as the case may be.
Q. 64 What remedy is available to a person whose land has been wrongfully attached in the
execution of a decree ?
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Ans. Order 21 Rule 58 provides that where any claim is preferred to, or any objection is made to the
attachment of, any property attached in execution of a decree on the ground that such property is not
liable to attachment, the court shall proceed to adjudicate upon the claim or objection in accordance
with the provisions herein contained:
Provided that no such claim or objection shall be entertained -
(a) where, before the claim is preferred or objection is made, the property attached has already been
sold; or
(b) where the court considers that the claim or objection was designedly or unnecessarily delayed.
[Order 21, Rule 58(1)].
All questions (including questions relating to right, title or interest in the property attached) arising
between the parties to a proceeding or their representatives under Rule 58 and relevant to the
adjudication of the claim or objection, shall be determined by the court dealing with the claim or
objection and not by a separate suit. [Order 21, Rule 58(2)].
Upon the determination of the questions referred to in Sub-rule (2), the court shall, in accordance with
such determination, - (a) allow the claim or objection and release the property from attachment either
wholly or to such extent as it thinks fit; or (b) disallow the claim or objection; or (c) continue the
attachment subject to any mortgage, charge or other interest in favour of any person; or (d) pass such
order as in the circumstances of the case it deems fit. [Order 21, Rule 58(3)].
Where a claim or an objection is preferred and the court, under the proviso to Sub-rule (1), refuses to
entertain it, the party against whom such order is made may institute a suit to establish the right which
he claims to the property in dispute; but, subject to the result of such suit, if any, an order so refusing
to entertain the claim or objection shall be conclusive. [Order 21, Rule 58(5)].
In Canara Bank v. Gurmukh Singh AIR 2000 Del. 48, it was observed:
"......... After the introduction of Amendment Act in 1976 Order 21 contemplates an adjudictaion .
It is now necessary that objection filed under Order 21 Rule 58 should not be disposed of
summarily. Wherever objection are filed under these provisions , these must be heard and
disposed of by a procedure akin to that which obtains the disposal of a suit ......... It is open to a
party to adduce evidence to prove his claim and there is nothing in the Section to make the court
to adopt summary procedure when dealing with an application under order 21 Rule 58. Sub-
section (4) to Rule 58 makes it clear that order under this provision shall have staus of decree."
The object of the Rule is to secure a speedy settlement of the question of title raised at an execution
sale. It gives the claimant a speedy and summary remedy. The court is bound to decide the question
of possession when an objection is made to attachment of the property in execution of a decree. On
the question of possession the onus is on the claimant or objector.
Q. 65 When does a suit stand abated ? What do you understand by complete and partial abatement
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Ans. Abatement implies a suspension or termination of proceeding for want of proper parties.
Provisions of Order 22 of Code of Civil Procedure deals with creation, assignment or devolution of
interest during pendency of suit as well as appeal but not execution proceedings due to death,
marriage or insolvency of parties.
Rule-1 of Order 22 C.P.C. provides that the death of plaintiff or defendant shall not cause the suit to
abate if the right to sue survives.
In Krishana Singh v. Mathura Ahir AIR 1980 SC 707, it was observed
"When a party to a suit dies the first question to be decided is whether the right to sue survives or
not ? If it does not, there is an end of the suit, if it does, the suit will not abate... The Expression
"Right to sue "may be interpreted to mean Right to seek relief, general rule is that all rights of
action and all demands whatsoever existing in favour of or against a person at the time of his
death survive to or against his representatives."
Rules 1 to 6 of Order 22 provide as to consequences, in case of death of party to suit. Rule 2 says
`where there are more plaintiffs or defendants than one and any of them dies and where the right to
sue survives to the surviving plaintiff or plaintiffs alone or against the surviving defendant or
defendants alone, the Court shall cause an entry to that effect, to be made on record and suit shall
proceed at the instance of surviving plaintiff(s) or against surviving defendant(s) as the case may be.
Rule 3 says where one of two or more plaintiffs dies and the right to sue does not survive to surviving
plaintiff or plaintiffs alone or a sole plaintiff or sole surviving plaintiff dies and right to sue survive, the
court on an application made in that behalf, shall cause the legal representative of the deceased
plaintiff to be made a party and shall proceed with the suit. Where within the time limited by law (i.e.
within 90 days of death), no application is made, the suit shall abate so far as the deceased plaintiff is
concerned.
Rule 4 then lays down that where one of two or more defendant dies and right to sue does not survive
against the surviving defendant or defendants alone, or where sole defendant or sole surviving
defendant dies and right to sue survives, the court on an application made in that behalf shall cause
the legal representatives of deceased defendant to be made party and proceed with the suit. However
where within the time limited by law (i.e. 90 days of death) no application is made the suit shall abate
against the deceased defendant.
Rule 4(4) of Order 22 however provide that court, whenever it think fits exempt the plaintiff from the
necessity of substituting the legal representatives of any such defendant who has failed to file written
statement or who having filed it, has failed to appear and contest the suit at the hearing and the
judgment may in such case be pronounced against said defendant notwithstanding the death of such
defendant and shall have same effect and force as if it has been pronounced before his death.
Rule 4(5) says where the plaintiff was ignorant of death of defendant and could not for that reason
make an application for substitution of legal representative of such defendant within the prescribed
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period and the suit is abated, plaintiff may make an application for setting aside such abatement and
in considering the said application the court shall have due regard to the fact of such ignorance of
plaintiff.
In Dhurandhar Prasad v. Jai Parkash University and other, AIR 2001 SC 2552, it was observed by
Supreme Court that Order 22 Rules 3 and 4 prescribe procedure in case of devolution of interest on
death of party to suit. It says if party dies and right to sue survives, court on application made in this
behalf, is required to substitute legal representatives of deceased party, but if such application is not
filled within time prescribed, suit shallabate so far as deceased party is concerned, whereas rule 10 of
Order 22 C.P.C. provides for cases of assignment, creation and devolution of interest, other than
those referred to in foregoing rules. In cases covered under rules 384 if right to sue survives and no
application for bringing legal representatives of deceased of deceased party filled within time
prescribed, there is automatic abatement of suit. In cases covered under Rule 10 legislature has not
prescribed any such procedure.
Q. 66 Plaintiff came to know about death of defendant on 15-12-94 from remarks of process server
on summons received in court unserved that defendant died on 1-6-94. He moved an application
immediately for substitution of legal representative of deceased defendant. Would this application be
allowed or rejected on the ground of expiry of period prescribed therefor ?
Ans. Rule 4 of Order XXII of the Code of Civil Procedure lays down the procedure in such cases.
According to it, where one of two or more defendants die and the right to sue does not survive against
the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and
the right to sue survives, the court, on an application made in that behalf shall cause the legal
representative of the deceased defendant to be made a party and shall proceed with the suit.
Sub-rules (3) of Rule 4 of Order XXII C.P.C. lays down that where within the time limited by law, which
is 90 days, no application is made under Sub-rule (1), the suit shall abate as against the deceased
defendant.
However Rule 4(5) provides that where the plaintiff was ignorant of the death of defendant and could
not for that reason make an application for substitution of legal representative of deceased defendant,
within the prescribed period and suit is abated, plaintiff may make an application for setting aside such
abatement and in considering such application, court shall have due regard to the fact of such
ignorance of the plaintiff."
In case in hand plaintiff was ignorant about death of defendant and on coming to know about death of
defendant from remarks of process server, he immediately move application for substitution for
substitution of legal representatives of deceased defendant. So his application may be allowed in view
of provisions contained in Rule 4(5) of Order 22 of Code.
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Q. 67 (a) What is the doctrine of restitution ? Has a court inherent power to grant restitution ?
(b) A obtained a decree against. B for possession B filed an appeal against the decree and obtained
stay of delivery. The appeal was allowed and the suit dismissed. Against the dismissal A preferred
second appeal and that was allowed and decree of trial court was restored. A applied in restitution for
mesne profits from the day of stay order of first appellate court to the date of the decree of second
appellate court. Is A entitled to the mesne profits so claimed.
(c) A obtained a decree exparte against B and in the execution of the decree brought the properties
of B to sale and himself became the purchaser. On appeal by B, the appellate court set aside the
decree and remanded the suit for re-hearing. Then B applied for restitution. While that application was
pending, the suit was heard and again decreed. A then contended that as the suit had been decreed
no restitution could be granted. Is B entitled to restitution ?
Ans. (a) The expression "Restitution" means restoring to a party the benefit which the other party
has received under a decree subsequently held to be wrong. The principle of the doctrine of restitution
is that on the reversal of a decree the law imposes an obligation on the party to suit who received an
unjust benefit of erroneous decree to make restitution to the other party for what he has lost. Doctrine
is based on maxim "actus curiea neminum gravabit" i.e. the act of court shall harm no one. Doctrine
of Restitution as embodied under section 144 of Code, however does not confer any new substantive
right to party but is a Rule of equity. In Order that Section 144 of Code apply following conditions must
be satisfied:-
(a) restitution sought must be in respect of decree or Order which has been reversed or varied.
(b) the party applying for restitution must be entitled to benefit under the reversing decree or
order.
(c) the relief claimed must be properly consequential on the reversal or variation of decree or
order.
If these conditions are satisfied, the court must grant restitution.
In Bhagwanti Singh v. Lala Shri Kishan Das, AIR 1953 SC 136, it was observed: "The doctrine of
Restitution is that on reversal of a judgment the law raises an obligation on the party to the restore
who has received the benefit of the erroneous judgment to make restitution to the other party for what
he had lost and it is duty of court to enforce that obligation unless it is shown that restitution would be
clearly contrary to real justice of case.
Restitution Under Inherent Power :
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In Kavita Rehan (Mrs.) v. Balsara Hygiene Products Ltd. AIR 1995 SC 44 it was observed: "The
jurisdiction to make restitution is inherent in every court and will be exercised whenever the
justice of case demands. It will be exercised under inherent power where the case did not
strictly fall within the ambit of Section 144."
Ans. (b) The court is competent to make orders as to mesne profits consequent upon an order of
restitution and cannot refer the party to a separate suit. Court has ample power under section 144
C.P.C. to make restitution to party which has been deprived of fruits of its decree by an order of court
at the instance of judgment debtor. Even though a party may not claim mesne profits, the same may
be granted by way of restitution if on account of action of court a party is deprived of benefit of
decree.The facts of the case in hand have been borrowed from a judgment in Inderam Mansa Ram v.
Ramdin Bhagwant Prasad AIR 1961 M.P. 200 it was held :
"Where a party is deprived of possession of property due to an >order or decree of court
below, which is later reversed or varied by appellate court, the court could under the
power conferred by Section 144 place the party, who has been deprived of possession
temporarily, in the position as if the reversed decree had not at all been passed." In view of
above discussion, it can be held that A is entitled to mesne profit from date of stay Order of first
appellate court till the date of decree passed by second appellate court.
Ans. (c) The object of restitution is to restore the status quo ante between the parties. The principle of
restitution is that on the reversal of a decree, the law imposes an obligation on the party to the suit
who received the benefit of the erroneous decree to make restitution to the other party what he has
lost. In Binayak Swain v. Ramesh Chandra, AIR 1966 S.C. 948 it was held
"Where in execution of an ex parte decree passed in appeal by the District Judge, the property of the
judgment debtor is sold and purchased by the decree-holder himself and the decree of the District
Judge is set aside by the High Court and the suit is remanded for re-hearing and fresh disposal, the
judgment debtor is under Section 144 Civil P.C. entitled to restitution of his properties purchased by
the decree-holder subject to equities to be adjusted which was set aside by the High Court is not
validated by the passing of the application for restitution, judgment debtor was entitled to restitution
because on that date the decree in execution of which the properties were sold had been set aside.
He is entitled to restitution notwithstanding anything which happened subsequently as the right to
claim restitution is based upon the existence or otherwise of a decree in favour of the plaintiff at the
time when the application for restitution was made." It was observed by Supreme Court:- "...The
principle of the doctrine of restitution is that on the reversal of a decree, the law imposes an obligation
on the party to the suit who received the benefit of the erroneous decree to make restitution to the
other party for what he has lost. This obligation arises automatically on the reversal or modification of
the decree and necessarily carries with it the right to restitution of all that has been done under the
erroneous decree, and the Court in making restitution is bound to restore the parties, so far as they
can be restored, to the same position they were in at the time when the Court by its erroneous action
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had displaced them from...." In view of the above discussion the objection raised by A is not
sustainable and B is entitled to restitution of his property.
Q. 68 (a) Discuss the procedure to be adopted by court in a suit by or against Government or Public
officer.
(b) A plaintiff gives notice under Section 80 of the Civil Procedure Code and institutes a suit before
two months but is allowed to withdraw the same with liberty to file a fresh suit. Is he entitled to file a
fresh suit without a fresh notice ?
(c) Notice is given by A under Section 80 of the Civil Procedure Code of a proposed suit. A dies
before the institution of the suit. Does the notice by A enure for the benefit of his legal representative ?
Ans. (a) Order 27 Sections 79 to 82 of Civil Procedure Code, deal with procedure in any suit brought
by or against Government or Public Officer.
NOTICE : Section 80 C.P.C provides for giving of notice prior to filling of suit against Government or
Public officer. Section 80 says no suit shall be instituted against Government or Public officer in
respect of any act purporting to be done by him in his official capacity untill expiration of two months
next after giving notice in writting has been delivered to Government or to such public officer. In Bihari
Choudhary v. State of Bihar AIR 1981 SC 1043, Supreme Court observed that
"---- Section has been enacted as a measure of public policy with the object of ensuring that
before a suit against Government of Public officer is instituted in the court, the Government or
Public officer concerned is afforded an opportunity to scrutinize the claim in respect of which the
suit is proposed to be filed and if it is found to be just claim, to take immediate action and avoid
unnecessary litigation."
Notice under Section 80 should contain (a) Name, description and place of residence of plaintiff, (b) a
statement of cause of action, (c) Statement of relief claimed, (d) Any other important information.
Sub-section (2) to Section 80 provides that a suit may be instituted with the leave of court for
obtaining urgent or immediate relief claimed against Government of Public officer in his official
capacity without serving statutory notice. But in such case court shall not grant relief in the suit
whether interim or otherwise except after giving to Government of Public officer as the case may be a
reasonable opportunity of showing cause in respect of relief claimed.
Order 27 C.P.C provides regarding procedure to be followed in such suit.
Ans. (b) Section 80 of C.P.C. provide regarding giving of notice prior to filing any suit against
government or public servant. Section 80 says no suit shall be instituted against Government or
against a public officer in respect of any act purporting to be done by such public officer in his official
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capacity until the expiration of two months next after notice in writing has been delivered to
Government or to such public officer.
In Bihari Chowdhary v. State of Bihar AIR 1984 SC 1043 explaining the underlying object behind
Section 80 Supreme Court observed:-
"...Section has been enacted as a measure of public policy with the object of ensuring that before
a suit is instituted against the government or a public officer, the government or officer concerned
is afforded opportunity to scrutinise the claim in respect of which suit is proposed to be filed and
if it be found to be just claim, to take immediate action and thereby avoid unnecessary litigation.."
However Sub-section (2) of Section 80 provides that a suit may be instituted with the leave of the
court for obtaining an urgent or immediate relief against the government or any public officer in
respect of any act purporting to be done by such public officer in his official capacity without serving a
statutory notice. But in such a case, the court shall not grant relief in the suit, whether interim or
otherwise, except after giving to the government or the public officer, as the case may be, a
reasonable opportunity of showing cause in respect of the relief prayed for in the suit.
In Amar Nath Dogra v. Union of India AIR 1963 SC 424: A fresh notice under Section 80, C.P.C. is
not necessary where a suit is instituted but that is withdrawn with liberty to file a fresh suit. If the plaint
which is being considered by the court has been preceded by a notice which satisfies the
requirements of Section 80, C.P.C. then the fact that before the plaint then under consideration, there
had been another plaint which had been filed and withdrawn cannot, on any principle be held to have
exhausted or extinguished the validity of the notice issued.
In view of the above discussion, a plaintiff can file a fresh suit without serving a fresh notice.
Ans. (c) In Beohar Rajender Singh v. State of M.P. 1970(1) SCJ 118, it was observed: The object of
the notice under Section 80, C.P.C., is to give to the Government or the public servant concerned an
opportunity to reconsider its or his legal position and if that course is justified to make amends or
settle the claim out of court. The Section is no doubt imperative; failure to serve notice complying with
the requirements of the statute. But the notice must be reasonably construed.
Supreme Court, in various case laws has adopted the Rule of substantive compliance in dealing with
requirement of giving notice under section 80 C.P.C. A notice under section 80 should be held
sufficient if it substantially fulfils its object of informing the parties concerned of the nature of the suit to
be filed.
In Ghanshyam Dass v. Dominion of India, 1984 A.W.C. 407 (SC): AIR 1984 SC 1004 Supreme
Court held
"Where a notice under Section 80 given by the plaintiff's father reached the concerned
department of the Dominion of India and it was replied by not accepting the claim of the father of
the plaintiff, but before instituting the suit the plaintiff's father died, the suit by the legal heirs of
the deceased without giving fresh notice under Section 80, C.P.C. is maintainable and the notice
by the deceased will enure for the benefit of his legal heirs."
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In view of above discussion, it is clear that no fresh notice under section 80 of Code is required to be
given by A's legal representative, after A's death when A had earlier given notice under section 80
before filing suit.
Q. 69 Who is Minor under the Indian Law ? State the procedure to be adopted for a suit by or
against a minor and persons of unsound mind. A compromise decree is passed in a suit involving
interest of Minor, can the Minor challenge such decree ? If so, on what grounds ?
Ans. Minor: Section 3 of Indian Majority Act, 1875 provides every person domiciled in India shall be
deemed to have attained majority when he shall have completed his age of eighteen years and not
before. But if before the expiry of the age of eighteen, a guardian for the person or for the property or
for both of the minor has been appointed or declared by a court, then the period of minority is
extended till the completion of the age of twenty one year.
Order 32 of Civil Procedure Code prescribe the procedure of suits to which minor or persons of
unsound mind are parties.
Rule 1 of Order 32 of Code lays down that every suit by Minor shall be instituted in his name by a
person who in such suit shall be called the `Next friend' of the Minor.
Rule 3 of Order 32 of the Code of Civil Procedure provides that where the defendant is a minor, the
court on being satisfied of the fact of his minority, shall appoint a proper person to be guardian for the
suit for such minor. An order for the appointment of a guardian for the suit may be obtained upon
application in the name and on behalf of the minor or by the plaintiff and such applications shall be
supported by an affidavit verifying the fact that the proposed guardian has no interest in the matters in
controversy in the suit adverse to that of the minor and that he is a fit person to be so appointed.
No order shall be made on any application under this Rule except upon notice to any guardian of the
minor appointed or declared by an authority competent in that behalf, or, where there is no such
guardian upon notice to the father or where there is no father, to the mother, or where there is no
father or mother, to other natural guardian of the minor, or where there is no father, mother or other
natural guardian, to the person in whose care the minor is, and after hearing any objection which may
be urged on behalf of any person served with notice.
Rule 4 of Order 32 of the Code of Civil Procedure provides who may act as next friend or be
appointed guardian for the suit. According to it, any person who is of sound mind and has attained
majority, may act as next friend of a minor or as his guardian for the suit. Provided that the interest of
such person is not adverse to that of the minor and that he is not, in the case of a next friend, a
defendant, or in the case of a guardian for the suit, a plaintiff.
Where a minor has a guardian appointed or declared by competent authority, no person other than
such guardian shall act as the next friend of the minor or be appointed his guardian for the suit unless
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the court considers, for reasons to be recorded, that it is for the minor's welfare that another person be
permitted to act or be appointed, as the case may be. No person shall without his consent in writing,
be appointed guardian for the suit.
In Asharfi Lal v. Smt. Koili AIR 1995 SC 1440 Supreme Court has observed that in case of a decree
against minor, minor can file suit to set aside the decree if there is gross negligence on the part of his
"next friend."
Effect of Non-compliance of the Provisions Relating to Minors According to Rule 2 Order 32 of
the Code of Civil Procedure where a suit is instituted by or on behalf of a minor without a next friend
the defendant may apply to have the plaint taken off the file with costs to be paid by the pleader or
other person by whom it was presented. Notice of such application shall be given to such person, and
the court, after hearing his objection (if any), may make such order in the matter as it thinks fit. If a
minor defendant is sued without a guardian ad-litem, the decree in favour of the plaintiff is a nullity and
inoperative and it cannot be enforced against the minor.
Agreement or Compromise by next friend or guardian for the suit Rule 7 of Order 32 of the Code
of Civil Procedure deals with agreements or compromise on behalf of minors. It provides that no next
friend or guardian for the suit shall without the leave of the court, expressly recorded in the
proceedings, enter into the agreement or compromise on behalf of a minor with reference to the suit in
which he acts as next friend or guardian.
Sub-rule (1-A) of the said Rule, which has been inserted by Amendment Act. No. 104 of 1976, lays
down that an application for obtaining the leave of the court shall be accompanied by an affidavit of
the next friend or the guardian for the suit; as the case may be, and also, if the minor is represented
by a pleader, by the certificate of the pleader, to the effect that the agreement or compromise
proposed is, in his opinion, for the benefit of the minor. Provided that the opinion so expressed,
whether in the affidavit or in the certificate, shall not preclude the court from examining whether the
agreement or compromise proposed is for the benefit of the minor.
Thus, according to the said provisions, it is the duty of the court to safeguard the interest of the minors
and any compromise which is not beneficial to the interest of the minor should not be allowed.
In Kumari Manju Gupta v. National Insurance Co. 1993 H.V.D. Vol. IV Page 357 it was held that in
a claim petition on behalf of a minor, no settlement can be arrived at, without leave of the court as
required under Rule 7 of Order 32 CPC. Provisions contained in Rules 6 and 7 of said Order are
mandatory and Addl. District Judge could not legally act upon that settlement without applying its mind
to see whether amount agreed between parties is adequate to compensate the minor girl.
In Sant Bhushan Lal v. Brij Bhushan Lal, AIR 1967 Del. 137, it was held that where a next friend or
guardian ad litem of minor enters into a compromise on his behalf with permission of the court under
Order 32 R. 7 the compromise and decree based thereon would be as much binding on the minor as it
is on adult parties, unless the minor can show that the next friend or his guardian ad litem was guilty
of fraud or negligence.
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So minor can challenge a compromise decree passed against him on the grounds - (i) that the
compromise has been effected without the leave of the court (ii) that the next friend or guardian ad
litem has been guilty of gross negligence and (iii) that there has been fraud or collusion on the part of
next friend or guardian ad litem.
Q. 70 Discuss the validity of the following :
(a) decree against a major treating him as a minor;
(b) decree against a minor treating him as a major;
(c) decree in favour of a minor without a next friend;
(d) decree passed against a minor in a suit in which he is not represented by a guardian ad litem;
(e) decree passed against a person who is a minor at the date of the institution of the suit with a
properly appointed guardian ad litem; he attains majority during the pendency of the suit, but no
steps are taken to remove the guardian ad litem and the decree is passed against him as a
minor.
Ans. (a) A decree obtained against a major treating him as a minor at the date is not a nullity, but is
only an irregularity, which is curable.
(b) decree against a minor treating him as a major; is a nullity.
(c) It is only an irregularity which is deemed to be waived by the defendant if he does apply to have
the plaint taken off the file under Order 32, Rule 2. The decree is consequently valid. Moreover, the
law treats all Acts of a minor which are for his benefit on the same footing as those of an adult. It only
does not permit him to do anything which is prejudicial to his own interests.
(d) A decree passed against a minor in a suit in which he is not represented by a guardian at litem is a
nullity, and cannot be enforced against him.
(e) The decree passed in the suit is a valid decree. The question under consideration is governed by
Rule 3(5) of Order 23, which provides that a person appointed to be guardian ad litem for a minor
shall, unless his appointment is terminated by retirement, removal or death, continue as such
throughout all proceedings arising out of the suit including the proceedings in any appellate or
revisional court and any proceedings in the execution of a decree. Consequently, the guardian ad
litem does not automatically cease to function on the minor's attaining majority. It is necessary for the
minor on attaining majority that he should take steps to have his guardian removed and in the
absence of such steps, he will continue to function as guardian and the decree passed against the
defendant as minor in the suit will be a valid decree.
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Q. 71 Discuss the validity of the following :
(i) Decree against a person of unsound mind supposing him to be of sound mind.
(ii) Decree passed against a minor in a suit in which he is not represented by a guardian ad litem.
(iii) A person who was minor at the date of the institution of suit with a proper guardian ad litem,
attains majority during the pendency of suit but no steps are taken to remove the guardian ad
litem and a decree is passed against him as a minor.
Ans. (i)& (ii) Rule-15 of Order 32 C.P.C. has provided that all the Rules except Rule 2-A of Order 32
equally extend to persons adjudged to be of unsound mind or who though not so adjudged are on
inquiry, found by the court, by reason of mental infirmity incapable of protecting their interests when
suing or being sued. Therefore as Rule 3 Order 32 say that where the defendant of suit is Minor or
person of unsound mind, then court on being satisfied of fact of minority or insanity of defendant, shall
appoint a proper person as guardian ad litem of such minor or person of unsound mind.
These provisions are mandatory. Therefore when decree is passed against person of unsound mind
or against minor without complying with provisions of Rule 3 Order 32 C.P.C. i.e. without appointment
of guardian ad litem, such decree is a nullity and cannot be enforced against him.
In Rama Lal v. Laxmi, AIR 1940 Ajmer 48, it was held that lunatics are under the special protection
of the court and decree will not be effective even if by ignorance of court, no enquiry as to mental
infirmity of the defendant, was made.
Ans. (iii) No provision has been made in the Code in respect of a minor defendant attaining majority
during the pendency of the suit. The reason for the omission is that while a plaintiff minor on becoming
major can elect either to go on with or put an end to the litigation, but the defendant has no such
choice available to him and suit must proceed against him not withstanding his becoming major.
A decree passed against a person who was a minor at the date of the institution of the suit with a
properly appointed guardian ad litem but attains majority during the pendency of the suit without any
steps being taken to remove such guardian with the result that the decree is passed against him as a
minor, is a valid decree as the guardian ad litem does not automatically cease to function on the minor
attaining majority, but continues to represent him throughout all proceedings unless his appointment is
terminated by retirement, removal or death under Rule 3(5) of Order 32.
Q. 72 Who is an indigent person ? What is the mode of instituting suits by such person ?
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Ans. Object: Order 33 C.P.C. deals with suits by indigent persons. Provisions of Order 33 are
intended to enable the indigent person to institute suits without payment of court fees. Generally a
plaintiff suing in a court of law is bound to pay court fee.
Indigent Person - Meaning Explanation 1 to Rule 1 says A person is an "indigent person if
(i) he is not possessed of sufficient means to enable him to pay the fee prescribed by law for the
plain in such suit or
(ii) Where no such fee is prescribed, when he is not entitled to property worth one thousands
rupees.
In both the cases, the property exempt from attachment in execution of a decree and the subject
matter of the suit should be excluded.
APPLICATION (Rule 2) Every application for permission to sue as an indigent person should contain
following particulars :-
(1) Particulars required in regard to plaints in suits.
(2) Schedule of moveable or immovable property belonging to applicant with estimated value
thereof
(3) Signature and verification as provided in Order 6 Rules 14 and 15 C.P.C.
The application is to be presented to the court by applicant in person unless appearance is exempted.
Rule 1A of order 33 provides for initial enquiry into the means of applicant by officer of court. Rule 4
provides that where application is in proper form and duly presented, court may if it think fit examine
the applicant and his agent regarding the merits of the claim and property of applicant. Rule 5
provides that the court may reject an application for permission to sue as an indigent person on the
following grounds:-
(i) Where it is not framed and presented in the manner prescribed above.
(ii) Where the applicant is not an indigent person.
(iii) Where he has within 2 months next before the presentation of the application disposed of
any property fraudulently or in order to be able to apply for permission to sue as an indigent
person :-
Provided that no application shall be rejected if even after the value of the property disposed of by the
applicant is taken into account, the applicant would be entitled to sue as an indigent person.
(iv) Where his allegations do not show a cause of action.
(v) Where he has entered into any agreement with reference to the subject-matter of the
proposed suit under which any other person has obtained an interest in such subject-matter.
(vi) Where the allegations made by the applicant in the application show that the suit would be
barred by any law for time being in force.
(vii) When any other person has entered into an agreement with him to finance the litigation.
Rule 6 of Order 33 then says : Where the application is not rejected, the court shall fix a date for
receiving evidence in proof or disproof of applicant's indigency. Rule 7 says that on the day so fixed
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the court shall examine the witnesses (if any) produced by either side and it shall also hear the
arguments of parties and then either allow or refuse to allow the applicant to sue as an indigent
person.
Rule 8 says where the application is granted, it shall be numbered and registered and shall be
deemed to be a plaint in the suit and the suit shall proceed in ordinary manner, except that the plaintiff
shall not be liable to pay any court fees or process fees. Where the court rejects the application to sue
as an indigent person, order of refusal bars a subsequent similar application, but the applicant may
sue in the ordinary manner provided he pays the costs incurred by the government or opposite party
in opposing such application.
Q. 73 Under what circumstances can a court order arrest before judgment ?
Ans. Order 38 Rules 1 to 4 of the Code of Civil Procedure deal with arrest before judgment. Rule 1 of
Order 38 of the Code of Civil Procedure provides that where at any stage of a suit, other than a suit of
the nature of referred to in section 16, clauses (a) to (d), the court is satisfied by affidavit or otherwise
-
(a) that the defendant, with intent to delay the plaintiff or to avoid any process of the court or to
obstruct or delay the execution of any decree that may be passed against him.-
(i) has absconded or left the local limits of the jurisdiction of the court, or
(ii) is about to abscond or leave the local limits of the jurisdiction of the court, or
(iii) has disposed of or removed from the local limits of the jurisdiction of the court his property or any
part thereof, or
(b) that the defendant is about to leave India under circumstances affording reasonable
probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any
decree that may be passed against the defendant in the suit,
the court may issue a warrant to arrest the defendant and bring him before the court to show cause
why he should not furnish security for his appearance :
Provided that the defendant shall not be arrested if he pays to the officer entrusted with the
execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's
claim ; and such sum shall be held in deposit by the court until the suit is disposed of or until
further order of the court.
Where the defendant fails to show such cause the court shall order him either to deposit in court
money or other property sufficient to answer the claim against him, or to furnish security for his
appearance at any time when called upon while the suit is pending, and until satisfaction of any
decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the
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sum which may have been paid by the defendant under the proviso to the last proceeding rule. (Order
Rule 2 C.P.C.)
Rules 3 and 4 of Order 38 of the Code of Civil Procedure deal with the procedure where the surety
applies for being discharged and the defendants fail to furnish security or find fresh surety. Sub-rule
(3) lays down that a surety for the appearance of a defendant may at any time apply to the court in
which he became such surety to be discharged from the obligation and on such application being
made, the court shall summon the defendant to appear or, if it thinks fit, may issue a warrant for his
arrest in the first instance. On the appearance of the defendant in pursuance of the summons or
warrant or, on his voluntary surrender, the court shall direct the surety to be discharged from his
obligation, and shall call upon the defendant to find fresh security.
Q. 74 Under what circumstances may a court order attachment before judgment ?
Ans. Attachment before judgment - According to Rule 5 of Order 38, where, at any stage of a suit
the court is satisfied, by affidavit or otherwise, that the defendant with intent to obstruct or delay the
execution of any decree that may be passed against him -
(a) is about to dispose of the whole or party of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction
of the court,
the court may direct the defendant either to furnish security in such sum as may be specified in the
order, to produce and place at the disposal of the court, when required, the said property of the value
of the same or such portion thereof as may be sufficient to satisfy the decree, or to appear and show
cause why he should not furnish security. (Order 38, Rule 5(1)).
The plaintiff shall unless the court otherwise direct specify the property required to be attached and
the estimated value thereof. (Order 38, Rule 5(2)).
The court can also order conditional attachment of whole or part of the property.
Q. 75 What do you understand by "Temporary Injunction" ? What is its scope ? When can the court
grant temporary injunction ?
Ans. TEMPORARY INJUNCTION Temporary injunction is an order by which a party to suit is required
to do or to refrain from doing a particular act until the suit is disposed or until further order of the court.
It is in the nature of an interim order passed by the court. Order 39 of Code of Civil Procedure deals
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with "Temporary Injunction" Rules 1 and 2 of Order 39 of Code of Civil Procedure are relevant which
read as under :-
Rule 1. Cases in which temporary injunction may be granted - Where in any suit it is proved by
affidavit or otherwise -
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by
any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends to, remove or dispose of his property with a view to
defrauding his creditors,
(c) that the defendants threatens to dispossess the plaintiff or otherwise cause injury to him in
relation to disputed property, the court may by order, grant a temporary injunction to restrain such
act, until the disposal of the suit or until further orders.
Rule 2. Injunction to restrain repetition or continuance of breach - In any suit for restraining the
defendant from committing a breach of contract or other injury of any kind, whether compensation is
claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either
before or after judgement, apply to the Court for a temporary injunction to restrain the defendant from
committing the breach of contract or injury complained of, or any breach of contract or injury of a like
kind arising out of the same contract or relating to the same property or right.
Scope - The power to grant temporary injunction is discretionary and the discretion has to be
exercised judicially. The grant of temporary injunction pending the suit of permanent injunction is a
very serious matter as it affects the rights of the person in possession of property and restricts him
from using the same at his disposal just because a suit has been instituted in this respect. It is thus
too serious a matter to be given a casual or routine treatment.
It may be noted that application of temporary injunction is instituted only where regular suit for
permanent injunction is pending before the same court with whom the application for temporary
injunction has been instituted. Temporary injunction cannot be granted unless it appears that there are
chances of success of the basic suit of permanent injunction. Where a permanent injunction cannot be
given, generally no temporary injunction is allowed. Thus, grant of an ad interim injunction is an
èxtraordinary' thing.
Guiding principles
Before granting of the temporary injunction, the following conditions are required to be satisfied,
namely :-
(i) prima facie the case is in favour of the plaintiff and against the defendant;
(ii) irreparable injury is likely to be caused to the plaintiff which cannot be compensated for in
terms of money;
(iii) balance of convenience lies in favour of the plaintiff and against the defendant;
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Q. 76 A constructed a house for B under an agreement. B revoked the agreement complaining that
the work was incomplete, shoddy and grossly delayed. A filed suit for wrongful termination of contract
and for recovery of Rs. 50 lacs allegedly outstanding for the work done. B also filed suit for recovery of
Rs. 12 lacs allegedly overpaid and for permanent injunction. He filed an application for grant of ad-
interim injunction under O. 39, Rules 1 and 2 CPC for restraining A from entering upon it. A resisting it
contended that the construction is complete and it was wrongful on the part of B to revoke the
agreement, that a huge sum is outstanding for the work done and he has a lien over the building, his
licence cannot be revoked till his dues are paid and that grant of temporary injunction will amount to
decreeing the suit itself. Decide B's ad-interim injunction application.
Ans. Temporary injunction is an order by which a party to an action is required to do or refrain from
doing a particular thing until the suit is disposed of or until further orders of court. Temporary injunction
is interim in nature granted on an interlocutory application of plaintiff. The granting of temporary
injunction is a matter of discretion of court, to be exercised judicially according well settled principles.
Rule 1 of Order 39 of Code provide that where in any suit it is proved by Affidavit or otherwise:-
(a) Property in dispute in a suit is in danger of being wasted, damaged or alienated by any party
to suit or wrongfully sold in execution of a decree.
(b) Defendant threatens or intends to remove or dispose of his property with a view to defrauding
his creditors.
(c) Defendant threatens to dispossess the plaintiff or otherwise cause injuries to plaintiff in
relation to property in dispute in suit.
Court may by order grant a temporary injunction to restrain such act or to make such order for the
purpose of staying or preventing the wasting, damaging, alienation, sale or removal etc. or
dispossession of plaintiff or otherwise causing injury to plaintiff in relation to property in dispute; as
court think fit until the disposal of suit or further Orders.
In Dorab Cawas Ji v. Coomi Sorah, AIR 1990 SC 867, it was observed : "Object of making an order
regarding interim relief is to evolve a workable formula to the extent called for by demands of situation
keeping in mind the pros and cons of matter and striking a delicate balance between two conflicting
interests i.e. injuries and prejudice likely to be caused to plaintiff if relief is refused and injury and
prejudice likely to be caused to defendant if the relief is granted. Underlying object of granting
temporary injunction is to maintain and preserve status quo at the time of institution of proceedings
and to prevent any change in it until the final determination of suit. "It was also observed - "The power
to grant a temporary injunction is in discretion of court and before granting the injunction the court
must be satisfied about following aspects:-
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(i) First, applicant must make out a prima facie case in support of right claimed by him. Court
must be satisfied that there is a bona fide dispute raised by applicant and there is probability of
the applicant being entitled to relief claimed by him. So existence of prima facie right and
infraction of such right is condition precedent to grant a temporary injunction.
(ii) It is necessary to prevent irreparable or serious injury which normally cannot be compensated
in terms of money.
(iii) The balance of convenience is in favour of one seeking such relief.
Being essentially an equitable relief the grant or refusal of temporary injunction shall ultimately vest in
the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in
each case.
In United State of America v. Master Builders, 1991 DLT 719 , it was observed: "If the owner in
building contractor terminates the contract and revokes the licence, the contractor cannot seek relief
to be authorised to continue the work under contract and court will not that way indirectly grant
specific performance of agreement. The owner cannot be forced to continue to employ a contract with
whom he is at logger heads. Similarly a contractor cannot be forced to work for owner whose contract
has been terminated even though wrongfully.
As regards the plea of lien, it was observed "term" "lien" in its ordinary sense means the right by law
to keep possession of something belonging to a person in debt until that debt has been paid. Lien
cannot give any right, interest or title in the immovable property in possession of person claiming lien."
In view of above discussion the plaintiff `B' is entitled to an ad-interim injunction directing A to remove
himself from property and further not to resist or obstruct the entry of B plaintiff, thereto. Facts of
present case, have been drawn from case Master Builders v. United States of America 1991 DLT
719.
Q. 77 `B' filed a suit for dissolution of Partnership and Accounts against À'. In order to deprive `B' of
the benefits À' began to shift the goods and assets of business establishment in a hurry. Advise `B'
as to what should he do in the circumstances.
Ans. Section 94(d) and Order 40 of the Code of Civil Procedure deals with the appointment of
receivers. According to it, the courts are empowered in certain circumstances to appoint receivers. It
provides that where it appears to the court to be just and convenient, the court may by order:
(a) appoint a receiver of any property, whether before or after decree;
(b) remove any person from the possession or custody of the property;
(c) commit the same to the possession, custody or management of the receiver; and
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(d) confer upon the receiver all such powers, as to bringing and defending suits and for the
realization, management, protection, preservation and improvement of the property, the
collection of the rents and profits thereof, the application and disposal of such rents and profits,
and the execution of documents as the owner himself has, or such of these powers as the court
thinks fit.
In Krishan Kumar v. Grindlays Bank AIR 1991 SC 899, it was observed, following principles must
be borne in mind before a receiver is appointed by court:
(a) The appointment of receiver is a discretionary power of court.
(b) The object of appointment of receiver is the preservation of property in dispute pending
judicial determination of rights of parties to it.
(c) A receiver should not be appointed unless the plaintiff prima facie proves that he has very
excellent chance of succeeding in the suit.
(d) Since appointment of receiver deprives the opposite party the possession of property before
final judgment is pronounced , it should only be granted for prevention of menifest injury or
wrong.
In Issar Das S. Lulla v. Smt. Hari, AIR 1962 Madras 458, it was held that the appointment of
receiver is in the discretion of the court and the court should not exercise the power as a matter of
course but only when it is necessary to do so. A receiver should not be appointed when there is a
bonafide possession of the property, unless there is some cogent grounds for interference. The main
object and purpose of the appointment of receivers is the preservation of the subject matter of the
litigation pending a judicial determination of the rights of the parties thereto.
Q. 78 (a) Can a court appoint a Receiver in a case even without an application from the party
concerned ? What is the duration of the appointment of a Receiver ?
(b) Can a Receiver be appointed in the following cases :
(i) in execution of a decree in respect of a compulsory deposit in the Provident Fund due to the
judgment-debtor;
(ii) in a suit for enforcement of simple mortgage on the application of the mortgagee.
Ans. (a) Appointment without application. According to the provision of Order 40, Rule 1 of the
Code of the Civil Procedure, a court can appoint a receiver in a case even without an application from
the party concerned if it is satisfied that it would be just and conveninent to do so. According to those
provisions, it is not necessary that the appointment should be made only when the application is
made.
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Duration No provision has been made in the Code of the Civil Procedure regarding the duration of
appointment of Receiver. The Supreme Court has summarised the law on this point in Hira Lal Patni
v. Loon Karan Sethiya, AIR 1962 SC 21, has observed :-
(i) If a receiver is appointed in a suit until judgment, the appointment is brought to an end by the
judgment;
(ii) if a receiver is appointed in a suit without his tenure being expressly defined, he will continue
to be receiver till he is dis-charged;
(iii) but after the final disposal of the suit as between the parties to the litigation, the Receiver's
functions are terminated, he would still be answerable to the Court as its officer till he is finally
discharged.
(iv) the court has ample power to continue the Receiver even after the final decree if the
exigencies of the case so required;
Ans. (b)(i) A receiver cannot be appointed in execution of a decree in respect of a compulsory deposit
in a Provident Fund to the judgment-debtor as held by our Hon'ble Supreme Court in Union of India
v. Heera Devi and another, AIR 1952 SC 765. In this case the decree holder, a lady, had obtained a
money- decree against one Ram Grahit Singh, a retired Head clerk in the dead letter office. In 1949, a
Receiver was appointed for collecting the monies standing to the credit of the judgment-debator in the
Provident Fund with the postal authorities. The Union of India intervened for setting aside the order of
appointment of Receiver and the Hon'ble Supreme Court allowing the appeal of Union of India held
that no Receiver can be appointed and such a deposit cannot be assigned or charged and is not liable
to any attachment.
(ii) It has been held in several cases that a Receiver can be appointed even where the mortgage is a
simple mortgage but the Hon'ble High Courts of Allahabad and Patna have taken a contrary view. The
view in Charan Nandi Chaudhry v. Rajnit Prasad, AIR 1932 Patna 360 appears to be correct in
view of sub-rule (2) of Rule 1 of Order 40 of the Code of Civil Procedure which lays down that nothing
in this rule shall authorise the court to remove. In the case of simple mortgage the plaintiff gets a
decree for sale and he has no present right to be in possession of the property and, therefore the
defendant's possession cannot be taken away by the appointment of the Receiver.
Q. 79 What are the powers of a Civil Court in regard to the appointmet of a Commissioner ? Has a
court inherent powers under section 151 Cr.P.C. to appoint a Commissioner ?
Ans. Appointment of Commissioner Sections 75 to 78 Order 26 of the Code of Civil Procedure lays
down the provisions relating to commissions. According to the provisions of sections 75 and 76 of the
Code, the court may issue commission in the following cases to any person or to Court other than a
High Court :
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(i) for examination of witness

(ii) for local investigation;
(iii) to examine accounts;
(iv) to make a partition;
(v) to hold a scientific, technical or expert investigation.
(vi) to conduct sale of properties which is subject to speedy and natural decay and which is in the
custody of the Court pending the determination of the suit;
(vii) to perform any ministerial act;
Order 26 Rule 1 of the Code of Civil Procedure deals with the cases in which the Court may issue
commission to examine witnesses. It provides that any Court may in any suit issue a commission for
the examination on interrogatories or otherwise of any person resident within the local limits of its
jurisdiction who is exempted under this Code from attending the Court or who is from sickness or
infirmity unable to attend it :
Provided that a commission for examination on interrogatories shall not be issued unless the
Court, for reasons to be recorded, thinks it necessary so to do.
Rule 4 of the Order XXVI of the Code of Civil Procedure further lays down that any Court may in any
suit issue a commission for the examination on interrogatories or otherwise of -
(a) any person resident beyond the local limits of its jurisdiction;
(b) any person who is about to leave such limits before the date on which he is required to be
examined in court; and
(c) any person in the service of the Government who cannot, in the opinion of the court, attend
without detriment to the public service:
Provided that where, under Rule 19 of Order 16, a person cannot be ordered to attend a court in
person, a commission shall be issued for his examination if his evidence is considered necessary
in the interests of justice:
Provided further that a commission for examination of such person on interrogatories shall not be
issued unless the Court, for reasons to be recorded, thinks, it necessary so to do.
Rule 9 of Order 26 of the Code of Civil Procedure deals with the commission to make local
investigation. It provides that in any suit in which the court deems a local investigation to be requisite
or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of
any property, or the amount of any mesne profits of damages of annual net profits, the Court may
issue a commission to such person as it thinks fit directing him to make such investigation and to
report thereon to the Court.
Rule 10-A of Order 26 of the Code of Civil Procedure deals with the commission for scientific
investigation and Rule 10-B of that Order deals with the commission for performance of a ministerial
act. Rule 10-A provides that where any question arising in a suit involves any scientific investigation
which cannot, in opinion of the court, be conveniently conducted before to the court may, if it thinks it
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necessary or expedient in the interests of justice so to do, issue a commission to such person as it
thinks fit, directing him to inquire into such question and report thereon the Court. Rule 10-B provides
that where any question arising in a suit involves the performance of any ministerial act which cannot,
in the opinion of the Court, be conveniently performed before the Court, the Court may, if, for reasons
to be recorded, it is of opinion that it is necessary or expedient in the interests of justice so to do, issue
a commission to such person as it thinks fit, directing him to perform that ministerial act and report
thereon to the Court.
Rule 11 of Order 26 of the Code of Civil Procedure deals with the commission to examine or adjust
and its Rule 13 deals with the commission to make partition of immovable property.
Appointment of Commissioner under inherent powers :
A Court has no inherent powers under section 151 of the Code of Civil Procedure to appoint a
Commissioner because inherent powers are not over substantive rights. Our Hon'ble Supreme Court
has held in Padam Sen v. State of U.P., AIR 1961 SC 218, that a Court has no inherent powers
under section 151 C.P.C. to appoint a Commissioner to seize account books in the possession of the
plaintiff upon an application by the defendant that he has apprehension that they would be tampered
with. It was observed by the Hon'ble Supreme Court that powers saved by section 151 C.P.C. are not
powers over substantive rights which a litigant possesses. A party has full right over his account
books and a Court can not seize them forcibly. It can summon them and, if not produced, it can
penalise the party and draw adverse presumption against him.
Q. 80 "Unless a right of appeal is clearly given by statute, it does not exist" -- Comment Can an
appellate court reverse a decree on the ground of misjoinder of parties ?
Ans. Right of appeal is not a natural or inherent right attaching to litigation. Such a right is given by
the statute or by the Rules having the force of statute.
Section 96 of the Code of Civil Procedure provides that
"Save as where otherwise expressly provided in body of this Code or by any other law for the time
being in force, an appeal shall lie from every decree passed by any court exercising original
jurisdiction to the Court authorised to hear appeals form the decisions of such court. An appeal may
lie from an original decree passed ex-parte. The following are the exceptions:-
1. No appeal shall lie from a decree passed by the Court with the consent of parties.
2. No appeal shall lie, except on a question of law, from a decree in any suit of the nature
cognisiable by Courts of Small Causes, when the amount or value of the subject-matter of the
original suit does not exceed three thousand rupees.
Note : - In view of C.P.C. (Amendment) Act, 1999 in sub- Section (4) of Section 96, now in place of
words "three thousand rupees" the words "ten thousand rupees" have been substituted.
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3. Where any party, aggrieved by a preliminary decree passed after the commencement of this
Code does not appeal from such decree.
Kinds of Appeal Appeals can be divided into following four classes according to the provisions of the
Code of Civil Procedure:
(i) Appeals from original decree. (Sections 96 to 99 and Order 41 C.P.C.)
(ii) Second appeals. (Sections 100 to 103 and Order 42 C.P.C.)
(iii) Appeals from Orders. (Section 104 to 106 and Order 43 C.P.C.).
(iv) Appeals to the Supreme Court. (Section s 109 and Order 45 C.P.C.).
Appeals from Original Decree Section 96 provides that save where otherwise expressly provided in
the body of this Code or by any other law for the time being in force, an appeal shall lie from every
decree passed by any court exercising original jurisdiction to the court authorized to hear appeals
from the decisions of such court. An appeal may lie from original decree passed exparte but no appeal
shall lie from a decree passed by the court with the consent of the parties. Sub-section (4) of Section
96 C.P.C. which has been added by Amendment Act No.104 of 1976, also lays down that no appeal
shall lie, except on a question of law, from a decree in any suit of the nature cognizable by courts of
small causes, when the amount or value of the subject-matter of the original suit does not exceed ten
thousands rupees.
Section 97 of the Code of Civil Procedure deals with appeal from final decree where no appeal is
preferred against preliminary decree, and Section 98 provides that where an appeal is heard by a
bench of two or more judges, the appeal shall be decided in accordance with the opinion of such
judges or of the majority (if any) of such judges.
Second Appeals Section 100 of the Code of Civil Procedure lays down that:
(i) Save as otherwise expressly provided in the body of this Code or by any other law for the time
being in force, an appeal shall lie to the High Court from every decree passed in appeal by any
court subordinate to the High Court, if the High Court is satisfied that the case involves a
substantial question of law.
(ii) An appeal may lie under this Section from an appeal (1) decree passed exparte.
(iii) In an appeal under this Section, the memorandum of an appeal shall precisely state the
substantial question of law in the appeal.
(iv) Where the High Court is satisfied that a substantial question of law is involved in any case, it
shall formulate that question.
(v) The appeal shall be heard on the question so formulated and the respondent shall, at the
hearing of the appeal, be allowed to argue that the case does not involve such question.
Provided that nothing in this Sub-section shall be deemed to take away or abridge the power of the
court to hear, for reasons to be recorded, the appeal on any other substantial question of law.
Section 101 of C.P.C. lays down that no second appeal shall lie except on the ground stated above
and Sections 100-A and 102 C.P.C. provide that in certain cases no second appeal lies. Order 42
deals with procedure to be adopted in second appeal.
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Civil Procedure Code (Amendment) Act, 2002 has inserted Section 100- A which provides.
"No Further Appeal in Certain Cases" - Notwithstanding anything contained in any letters patent for
any High Court or in any other instrument having the force of law or in any other law for the time being
in force where any appeal from an original or appellate decree or order is heard or decided by a single
judge of High Court, no further appeal shall lie from the judgment and decree of such single Judge :
By single Judge of High Court, no further appeal shall lie from judgment, decision or order of such
single Judge." Section 102 of Code has also been substituted by Amendment Act 2002 which says :-
Section 102 "No second appeal shall lie from any decree, when amount or value of subject matter of
original suit does not exceed 25000/- rupees".
Recently Three Judges Bech of Supreme Court in Santosh Hazari v. Purushottam Tiwari (By L.Rs),
AIR 2001 SC 965, observed that :
" Section 100 of Code as amended in 1976 restricts the Jurisdiction of High Court to Hear the
Second Appeal only on `Substantial Question of Law involved in the case'. An obligation is cast
upon the appellant to precisely state in Memorandum of appeal the substantial question of law
involved in appeal for which appellant proposes to urge before High Court. High Court must be
satisfied that a substantial question of law is involved in the case and such question has to be
formulated by High Court. At the hearing of appeal, the scope of hearing is circumscribed by the
question so formulated by High Court. Respondant is at liberty to show that question formulated
by High Court is not involved in the case. However High Court's power to hear the appeal on any
other substantial question of law not earlier formulated by it, is not taken away subject to twin
conditions being satisfied : (a) the High Court feels that the case involves such question and (b)
High Court records reasons for such satisfaction. The phrase " Substantial Question of Law"
means question of law which must be debateable, not previously settled by law of land or binding
precedent and must have material bearing on the decision of the case, if answered either way, in
so far as the rights of parties before it are concerned."
Appeals from Orders Section 104 and Order 43 of the Code of Civil Procedure deals with such
orders from which appeal lies. According to it, an appeal shall lie from the following Orders, and save
as otherwise expressly provided in the body of the Code or by any law for the time being in force, and
from no other orders :
(i) An order under Section 35 ;
(ii) An order under Section 91 or 92 refusing leave to institute a suit of the nature referred to in
Sections 91 and 92, as the case may be
(iii) An order under any provision of Code imposing a fine or directing the arrest or detention in
the civil prison of any person except where such arrest or detention is in execution of a decree.
(iv) Any order made under Rules from which an appeal is expressly allowed.
Provided that no appeal lies against any order under Section 35-A save on the ground that no Order
or an order for payment of a less amount ought to have been made.
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APPEAL TO SUPREME COURT Section 109 of Code of Civil Procedure lays down, that subject to
provisions in Chapters IV and V of the Constitution and such Rules as may from time to time be made
by the Supreme Court regarding appeals from the courts of India and to provisions hereinafter
contained, an appeal shall lies to Supreme Court from any judgement, decree or final Order in a civil
proceeding of High Court, if the High Court certifies:-
(i) That the case involves a substantial question of law of general importance and
(ii) That the opinion of the High Court on said question needs to be decided by Supreme Court.
Order 45 C.P.C deals with procedure in appeal before Supreme Court.
Whether Appellate Court can Reverse a Decree on Ground of Mis Joinder of Parties Section 99
of the Code provides:
"No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. -
No decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal
on account of any misjoinder [or non-joinder] of parties or causes of action or any error, defect or
irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of
the Court: provided that nothing in this Section shall apply to non-joinder of a necessary
party." Thus, the appellate Court shall not reverse a decree on the ground of misjoinder of
parties unless it has affected the merits of the case or the jurisdiction of the Court or there has
been a failure of justice.
Q. 81 State the circumstances in which a person aggrieved by the judgment of the Court may apply
for review of its judgment?
Ans. In simple words Review means to look once again. In Legal Parlance Review is a judicial re-
examination of the case by same court. Section 114 of Code of Civil Procedure gives a substantive
right of review and order 47 provides the procedure, therefore Section 114 of Code says any person
considering aggrieved:
(a) By a decree or order from which an appeal is allowed but from which no appeal has been
preferred;
(b) By decree or order from which no appeal is allowed;
(c) By a decision on reference by court of small cause.
may apply for Review of Judgement to court which passed the decree or made the order and the
Court may make such order thereon as it think fit.
GROUNDS
Order 47 Rule 1 of Code says that Application for Review of Judgement may be made on any of the
following grounds:-
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(a) Discovery of new and important matter or evidence, which after the exercise of due diligence
was not within his knowledge or could not be produced at the time when the decree was passed
or made.
(b) Mistake or error, apparent on the face of record.
(c) Any other sufficient reason.
Explanation : The fact that the decision on a question of law on which judgment of the court is based
has been reversed or modified by subsequent decision of a superior court in any other case shall not
be a ground for the review of such judgement."
Power of Review should not however be confused with appellate power which enables the court to
correct all errors committed by subordinate court. In A.T. Sharma v. A.P. Sharma AIR 1979 SC 104 it
was observed:
"As a general rule where a litigant obtained a judgment in a court, he is by law entitled, not to be
deprived of fruits thereof without solid grounds. It is very easy for party who has lost the case to
see the weak points in case and try to fill in the gaps by procuring evidence which will strengthen
that weak part of his case. Object of Review is neither to enable the Court to write a second
judgment nor to give second inning to a party who has lost the battle because of his own
negligence."
Q. 82 Can Revision be filed against an Order of court disallowing an important question put to a
witness ?
Ans. Section 115 of the Code of Civil Procedure deals with the revisional jurisdiction of the High
Court. It provides that the High Court may call for the record of any case which has been decided by
any court subordinate to such court and in which no appeal lies thereto, and if such subordinate court
appears: (a) to have exercised jurisdiction not vested in it by law, or (b) to have failed to exercise a
jurisdiction so vested, or (c) to have acted in the exercise of its jurisdiction illegally or with material
irregularity, the High Court may make such order in the case as it thinks fit. Provided that the High
Court shall not, under this Section , vary or reverse any order made, or any order deciding an issue, in
the course of a suit or other proceeding except where:
(a) the order, if it had been made in favour of the party applying for revision, would have finally
disposed of the suit or other proceeding, or
(b) the order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to
the party against whom it was made.
Sub-section (2) of Section 115 C.P.C. further lays down that the High Court shall not under this
Section, vary or reverse any decree or order against which an appeal lies either to the High Court or
to any court subordinate thereto.
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Explanation - In this Section, the expression "any case which has been decided" includes any order
made, or any order deciding an issue, in the course of a suit or other proceeding.
Civil Procedure Code (Amendment) Act, 1999 has substituted the proviso to sub-section (1) of
Section 115 of Code by following words :-
"Provided that High court shall not, under this section vary or reverse any order made or any
order deciding an issue, in course of a suit or other proceedings except where the order, if it had
been made in favour of party applying for revision, would have finally disposed of the suit or
other proceedings."
Amendment Act, 1999 has also inserted sub-section (3) to Section 115 of Civil Procedure Code,
which provides as under:-
"A revision shall not operate as a stay of suit or other proceeding before the court, except where
such suit or other proceeding is stayed by the High Court.
Supreme Court in Baldev Das v. Filmistan Distributors, AIR 1970 SC 406 has held that case may
be said to have been decided if the court adjudicates for the purpose of the suit some right or
obligation of parties in controversy.
Explanation added to Section 115 of Code vide Amendment Act 1976 makes it clear that expression
"Case decided" includes any order made or any order deciding an issue, in the course of a suit or
other proceeding.
In view of above discussion it is clear that order allowing or disallowing a question to a witness is not
case decided. Therefore such an order can not be challenged in Revision.
In Prem Bakshi and other v. Dharam Dev, AIR 2002 SC 559 application for amendment of plaint
was filled to bring to notice of court the subsequent facts application allowed by Trial Court. High
Court set aside that order in revision. When matter went in Supreme Court, while relying upon
judgment of Maj. S.S. Khanna's case AIR 1964 SC 497, it was observed -
"The proviso to sub-section (1) of Section 115 puts a restriction on power of High Court in as
much as it shall not under section 115 C.P.C. vary or reverse any order made or any order
deciding a issue, in course of a suit or other proceedings except where (i) the order made would
have finally disposed of the suit or other proceedings or (ii) said order would occasion failure of
justice or cause irreparable injury to party, against whom it is made... Order in question by which
the amendment was allowed could not be said to have finally disposed of the case.... It is almost
inconceivable how mere amendment of pleadings could possibly cause failure of justice or
irreparable injury to any party. Thus order of High Court was held to be outside the purview of
revisional jurisdiction.
Q. 83 Distinguish between Appeal Review and Reference and Revision
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Ans. (i) Revision and Appeal - There are following main distinctions between revision and appeal:
(a) An appeal lies to a superior court from every original decree unless expressly barred, while a
revision lies only in the cases mentioned in Section 115 C.P.C., and to the High Court only.
(b) The revisional jurisdiction can also be exercised suo moto, while appellate jurisdiction cannot
be exercised suo moto.
(c) The exercise of the revisional power is entirely discretionary and ordinarily High Court does
take a technical view so as to interfere in every case while right of appeal is a substantive right
given by statute, and every appeal is to be decided according to law.
(d) The High Court or the revisional court cannot, in exercise of its revisional powers, set aside
the findings of facts of subordinate courts but a court of appeal can do so.
(d) An appeal abates if the legal representative of the deceased are not brought on record within
the time allowed by law while a revision may not abate and the High Court has a right to bring
the proper parties before the court at any time.
(ii) Revision and Review ; There are the following distinctions between revision and review:
(a) The power of revision is exercised by the High Court and in some cases, by the District Court,
i.e., the superior court, while the power of review is exercised by the court which passed the
decree or order.
(b) The power of revision is conferred on the High Court only and in some cases in some States,
on the District Court also, but review can be made by any court which passed the judgment or
order.
(c) Revisional powers can be exercised only in cases in which no appeal lies, but review can be
made even when appeal lies to the Supreme Court.
(d) The grounds on which the powers of revision and review can be exercised are different. The
ground for revision relates to jurisdiction, i.e., want of jurisdiction, failure to exercise jurisdiction
vested in the court, or illegal or irregular exercise of the jurisdiction, while the grounds for review
are the discovery of new and important matter of evidence, some apparent mistake or error on
the face of the record or any other sufficient reason.
(d) No appeal lies from an order passed in the exercise of revisional jurisdiction while the order
following the review application is appealable.
(iii) Reference and Revision ; There are the following distinctions between reference and revision:
(a) In reference, the case is referred to the High Court by a court subordinate to it as provided in
Section 113 of the Code of Civil Procedure, while the revision application is moved by the party
concerned or the revisional court can suomoto send for the case and examine the record.
(b) The ground of reference, the entertainment of some reasonable doubt by the court trying the
suit, appeal or executing the decree in respect of a question of law or usage having the force of
law, while the ground for revision relates to jurisdiction, i.e., want of jurisdiction, failure to
exercise jurisdiction vested in the court or its irregular exercise.
(iv) Reference and Review ; There are the following distinctions in reference and review:-
8/30/22, 12:05 PM Law Finder !!
(a) In reference, the subordinate court refers the case to the High Court under Section 113 of the
Code of Civil Procedure, while in review an application is made by the aggrieved party in the
court which passed the order of judgement.
(b) The High Court only can decide matters on reference while the power of review is to be
exercised by the court which passed the decree or order, as the case may be.
(c) Reference is made during the pendency of the suit, appeal or execution proceedings, while
application for review is made to the court after a decree or order is passed.
(v) Reference and Appeal
(a) A right of appeal is a substantive right conferred by law while the power of reference is vested
in the court.
(b) Reference is always made to the High Court, while the appeal is preferred to a superior court
which need not necessarily be a High Court.
(c) The grounds of appeal are wider than the grounds of reference.
(d) Reference is made in a pending suit, appeal or execution proceedings in order to enable a
court to arrive at a correct conclusion, while an appeal is preferred after a decree or appealable
order is passed by the court.
(vi) Review and Appeal ; There are the following main distinctions between review and appeal:
(a) An application for review lies to the same court while an appeal lies to a superior court.
(b) The grounds of review are different from the grounds of appeal. The grounds of appeal are
wider than the grounds of review.
(c) There is no second review provided in the Code of Civil Procedure, while there are provisions
for second appeal in certain cases.
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Civil Procedure Code

Q. 2 Distinguish between Decree and Order.

(8) Suit for Sale of Mortgaged Property (O. 34 R. 4-5)

(A) An order rejecting a memorandum of appeal insufficiently stamped;

(B) Memorandum of appeal which is dismissed as time barred;

(C) An order returning a memorandum of appeal for amendment;

(D) An order that a suit abates.

Ans. Section 2(2) of Code defines the term "Decree" as :

Q. 6 Define and writ short notes on :

(A) Mesne Profits

(B) Foreign Judgment

(C) Judgement Debtor

(D) Decree holder

(E) Exparte decree

(F) Legal Representation

Q. 7 What do you understand by the term "Jurisdiction of a Court"?

What is a suit of civil nature ? Give few examples.

Q. 9 Whether following suits are cognizable by civil court :-

(A) Suit for dismissal from post of honorary secretary of an association.

(B) Suit for exclusion of a member from cast.

(C) Suit to set aside the election of directors.

(D) Proceedings for dissolution of Muslim marriage.

(F) Suit relating to costs property.

in view of Section 10 of C.P.C.

trial of B's suit?

its application in legal proceedings.

(3) Res Judicata pro veritate occipiture

Q. 14 (a) Discuss the doctrine of constructive res judicata.

claiming it as C's Bandhu. Is the suit barred as res judicata ?

B in which the question of adoption is again put in issue ?

principles of res judicata.

Ans. Matter collaterally or incidentally in issue. - The expression "collaterally or incidentally in

Gurudwara. Is the suit is barred by Res Judicata ?

Q. 18 (a) What is prematrue discovery ?

possession of the opposite party.

Ans. Procedure in case of discovery and inspection of documents. - Rule 12 of Order 11

court be executed in India ?

Ans. A suit is to be instituted by presentation of a plaint or in any prescribed manner. Sections 15 to

suit at least for Rs. 50,000, is maintainable at Delhi Courts.

Jaipur. How the court will decide ?

Q. 25 A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at Varanasi, B

and C make a joint promissory note payable on demand and deliver it to A.

Ans. Section 20 of the Code of Civil Procedure provides as under :-

Q. 26 Determine the place of suing in the following cases:

wants to file a suit for recovery of his money.

partition of the property.

Q. 27 When can an objection to jurisdiction be raised ? Can an objection as to territorial or pecuniary

Q. 28 What are the provisions relating to transfer of a civil suit ?

the Code of Civil Procedure Code with regard to such a suit.

Q. 32 What do you understand by Representative Suit ?

matter may be avoided.

relinquished part of his claim ?

is decreed. Can he file suit for recovery and damages ?

Ans. Order 2 of Civil Procedure Code deal with Frame of Suit.

causes of action have been joined ?

Ans. (a) Power of Court to Order Separate Trials.

Q. 36 State Rules relating to service of summons.

Q. 38 What are the powers of the court to allow amendment of pleadings ?

required to be contained in 'Plaint' and 'Written Statement' ?

(a) Name of the court in which suit is brought.

Q. 40 (A) When can a plaint be returned for presentation to another court ?

(B) When can court reject the plaint ?