COURSE TEMPLATE

Course title:

CIVIL PROCEDURE CODE 1

Academic year and trimester:

2nd Year, BA (Hons) LLB 2024

Name of TEACHER:

Dr. Nanda Kishore

Professor of Practice, National Law School
Email: nandakishore@nls.ac.in
Mobile: 9901870886 (whatsapp)

Teaching Assistant:
Ms. Shivani Pegatraju, Academic Fellow, NLSIU
Email: shivani.pegatraju@nls.ac.in
Mobile: 8050061009

COURSE DESCRIPTION

This is a mandatory course as per Bar Council of India Regulations and this course
has been designed as follows.

We start the course by exploring several of the conceptual themes arising within
civil procedure such as the following:

(a) The difference between substantive law and procedural law.

(b) The difference between questions of law and questions of fact.

(c) The goals of procedural systems.

(d) The factors that influence procedural systems.

(e) How procedural systems can be categorised.

(f) The adversarial – inquisitorial dichotomy.

(g) Comparative civil procedure and its benefits.

(h) What does procedure have to do with Justice?

(i) The importance of Procedure.

(j) The history of Indian Civil Procedure.

(k) Peculiar problems with Indian Civil Procedure and the Indian Civil Justice
System.

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The initial theoretical classes are more in the nature of “brainstorming” sessions –
the idea is to throw up and play around with all the interesting abstract premises
that lie hidden (most of the time) in black-letter civil procedure rules. Initial classes
will be devised to draw the student out so that she interacts with the class and the
professor- to break the ice as it were. Thought-provoking articles and exercises
(contained in the handouts) will form the basis for discussion and debate.

After the initial theoretical classes, we will encounter the Code itself and start
studying it. We first cover the entire trial court procedure from the stage of filing
of the plaint, as the suit proceeds from stage to stage, until the judgment is
pronounced by the trial court and the decree is written. We also look at execution
proceedings. Thereupon we will consider the different types of remedies available
against decrees and orders of the civil courts. The materials we rely upon are
primarily the statutes concerned namely the Code of Civil Procedure, 1908, and
related statutes such as the Limitation Act, 1963. We also rely extensively on cases
decided by the Supreme Court and some cases of the High Courts.

Students will be furnished copies of handouts specially designed for this course at
the start of the course which will outline in detail the topics covered, the relevant
statutory provisions, the cases to be discussed and the readings for each topic.
Given the enormous complexity of procedural rules, these handouts make the rules
more manageable and allow us to easily oscillate from in-depth “micro” study of
procedural provisions to broader “macro” understandings of how the system
operates. For each class, students will be expected to read the cases mentioned in
the handouts and familiarise themselves with the statutory provisions. Additional
readings will also be indicated, usually the relevant chapters from Takwani’s
Textbook on Civil Procedure, articles in journals or cases to be read.

In a typical class, the Course Teacher will first outline the broad principles under
the topic being studied and then the class will read the statutory provisions. We
then move on to case-law that illuminates the principles underlying the statutory
rules. For each case to be discussed in class, students will be identified before-
hand and will be required to lead the discussion on that case. The other students
will also be expected to have read the case and actively participate in classroom
discussion. Students who have worked or are working on a project that involves
the topic under consideration might be required to make a presentation in class-
this will help the class explore several tangential and intersecting themes. For
example, whilst studying Discovery, a student who has made a project on
“Discovery in the US” might make a presentation upon the said topic. Socratic
discussion is welcomed. There will be mock-tests wherein students will be expected
to solve practical-type questions.

Given that procedural law scholarship is generally undernourished in India, we

welcome comparative approaches that draw on theory developed in other
countries, especially the United States and the United Kingdom.

Students should also note that given that CPC is a very lengthy subject, and
further given the time constraints, only salient aspects of many of the procedural
steps and devices can be considered in the course. Several nuanced aspects will
thus need to be explored by the student through self-study.

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In their projects/assignments/mock tests/moots, students will be expected to
explore nuanced statutory provisions, reported decisions and also underlying
theoretical premises.

COURSE OBJECTIVE(S):

From the rules of civil procedure to the principles of civil procedure

The Law of Civil Procedure in India is the legacy of some of the finest English jurists
of their time who, working with the pre-existing English common law on the
subject, strove to create comprehensive and precise codes laying down the
procedure to be followed for the conduct of civil cases. Their work was painstaking,
pioneering and infused with the highest degree of scholarship and sophistication.

We Indians have always been in awe of the Indian Evidence Act, 1872, and the
Code of Civil Procedure, 1908, which have to be read together to understand civil
procedure. The Law Commission Reports are full of praise for these enactments.
In spite of several reports over the years that seek to review and effect changes to
the existing system of civil procedure, it is recognised that the Evidence Act is “a
commendable piece of legislation”, the Act being seen as “an embodiment of all
that is truly excellent.” The CPC is also similarly admired. The Law Commissions
have always felt that “the ship is well-designed, fundamentally sound…” The only
serious challenges to the system that the Law Commissions have considered over
the years have been with regard to the viability of resorting to an indigenous system
of procedure or jumping over to an inquisitorial system as existing in Continental
Europe- both of which have been rejected as impracticable.

Yet, in the face of the constant crisis of the Civil Justice System caused by arrears
and delays, there is the recurrent urge to review our procedures and somehow find
ways of making the system more effective. Whilst several changes have been
recommended and effected over the years, the “ship” remains fundamentally the
same and we are forced to conclude that the problem is one of infrastructure, not
procedure.

But even though the ship may be fundamentally sound, we may be at fault for not
running it properly. The provisions of the Codes are “insufficiently theorised” and
we are yet far away from arriving at the Principles of Indian Civil Procedure as
opposed to a mass of rules and cases that have not been adequately reconciled.
The great disadvantage of codification is that very often, the principles and
purposes behind the black-letter rules are not expressly stated, and are further
difficult to arrive at with large and complex statutes like the CPC and the Evidence
Act. Thus, when courts are called upon to apply the rules in a given case, or when
litigants/lawyers wish to predict the outcomes of particular actions based on the
rules, the interpretive issues that arise are not adequately resolved, leading to
improper/insufficient application/understanding of the rules and consequently,
lack of predictability and uncertainty. Only when a clear set of principles
underlying the Codes and the decisions rendered thereunder are articulated,
proper application of the procedural law can take place. This lack of clarity, and
the insufficient and incorrect application of the Codes, add to delays in dispute

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resolution, and also affects the quality of dispute resolution that the Civil Justice
System delivers.

In addition to “micro theorisation” as discussed above, i.e., arriving at a set of

principles that best explain the rules and decided cases under them, India would
benefit greatly from taking into account the vibrant discourse being conducted by
procedural law scholars around the world, wherein Procedure is being theorised at
a “macro” level. A sizable body of literature is developing on the “macro” analysis
of procedural systems- wherein broader questions as to procedural systems as a
whole are being considered. Countries have the similar agenda of designing
procedural systems that best achieve the goals of the system - such as accurate
resolution of disputes - with the minimum amount of time, money and vexation.
Thus, the discussion that is conducted in one country can easily be borrowed by
others, and this is particularly true of countries that follow the Anglo-American
model of civil procedure. On this count also, theorisation and scholarship in India
is lacking.

Procedural law can be difficult. There is a huge mass of technical rules that need
to be mastered. The object and purpose of the rules are very often not obvious from
a bare reading of the rules and the rules are often drafted in archaic language. The
rules seem counter-intuitive at times. The rules are inter-connected in complex
ways and cannot be easily sub-divided. The CPC has to be read with the Evidence
Act, as well as other procedural codes relating to limitation, court-fees, specific
relief, etc. Crucially, comprehensive text-books that explain in a simple and easily
understandable manner all the rules of the CPC and Evidence Act are easily found.
Sarkar’s Code of Civil Procedure continues to be revised and reprinted and is a
standard reference book for practitioners and students. The CPC is reproduced
with voluminous case-law under each section, primarily from the High Courts. The
cases are not reconciled, and no principles are arrived at that clearly explain the
section or any interpretive issues that arise therefrom. Driven by despair, some
students may rush to get Mulla’s Key to Indian Practice or CK Thakker’s Civil
Procedure – both elegant well-written books- but too thin and perhaps not
comprehensive enough – only basic issues under each topic are explained without
going in too deep.

In order to resolve interpretive issues that arise within the Codes, one inevitably
has to study the provision, the surrounding context and the statute as a whole,
and try to glean therefrom the purpose or rationale of the rule. Once you get to the
purposes of the rule, then applying it becomes much easier. With the common-
law, every principle is based on a judgment or series of judgments and therefore it
is not difficult to get to underlying rationales and purposes-since this would be
articulated in the judgment. With statutes, very often the purpose and rationale
for rules will not be obvious from a plain reading of the rule. This is especially true
of the Evidence Act and CPC which often contains rules the reasons for which are
not obvious. What compounds the problem even more is the sheer volume and
complexity of the procedural codes.

Ronald Dworkin the famous “jurisprude”, argues that the law is not just a set of
rules- the law is the set of principles that underlie the entire body of rules and the
precedents decided under them. In order to really know your law, you need to know

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not just your rules and cases, but the principles which underlie them. Considered
from this perspective, it is clear that we are still far away from arriving at the
Principles of Indian Civil Procedure. Any textbook on the CPC will evidence the fact
that we are still straddled with a mass of rules and cases. Many areas of the CPC
and Evidence Act are yet to attain conceptual clarity.

After this rather elaborate warning, we come to the objects of this course.
Primarily, it is to ensure that students have attained a good deal of familiarity and
understanding of the black-letter rules of Indian civil procedure (“the trees”).
Students are to be adept at applying the basic rules of civil procedure to draft,
analyse and argue cases at trial and appellate levels. Secondly, it is also to gain a
sense of the underlying concepts and principles (“the forest”) to sharpen our
understanding of the rules and also so that we may appreciate the complexity and
design of procedural systems from a broader perspective. Such an approach, it is
hoped, would bring greater clarity and make the subject more interesting.

EVALUATION PATTERN
[refer to Rule III(5)(8)(a)&V(a)]

As described in the Academic Regulations

Project/ assignments/mock tests/moots 25 marks

Viva-Voce 10 marks
Class Participation 05 marks
End of Trimester Exam 60 marks
TOTAL 100
marks

Guidelines for the five marks to be awarded for Class Participation

(a) The award of these 5 marks is exclusively within the discretion of the Course
Teacher.

(b) However, four marks will be awarded by default simply for being responsive.

Being responsive includes the following:

(i) Being ready with class readings at all times during the course. If a
student has been designated as the "leader" to lead classroom
discussion, it must appear to the Course Teacher that she has read
the material indicated. Also, students who are on the “cold-call” list
for that session must also be ready to be called upon. The Course
Teacher would randomly ask questions to students who are leading
the discussion or who are on the "cold-call” list. If any student
appears to have not read the material indicated, one mark will likely
be deducted out of the four marks allocated for responsiveness. The
Course Teacher might call upon the same student several times
during the course to test preparedness. Every instance of
unpreparedness will result in the loss of a mark - until all four marks
awarded by default are deducted. The Course Teacher will try to
ensure that everyone gets a chance to lead discussions in class and

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 that everyone is called upon at least a few times during the course
on "cold-call" so that all are treated equally.

(ii) Completing and submitting classroom exercises within the

designated times. Failure to do so - or submitting exercises which ex
facie appear lackadaisical might also result in deduction of one mark.
If there have been three classroom exercises, then a student could
potentially lose all four marks for not being responsive.

(iii) Being presentable and receptive during classes. If the Course Teacher
finds the student asleep, inattentive (not responding within 5 seconds
of being called) or engaged in other activities online or otherwise, he
may deduct a mark for every such instance. This includes behaviour
such as being engaged in online conversations with others, etc. This
is applicable to all students – whether the students are “on-call” or
not.

(iv) Making presentations when called upon. The Course Teacher will be
calling upon students either through the TIC-TOC program or
otherwise to make presentations. The student should prepare and
make a presentation for about 3-5 minutes. Failure to respond and
present when called upon will result in 1 mark being deducted.

In case the Course Teacher decides to deduct a mark for

unresponsiveness, he will send an email at the end of the class to the
class-representatives indicating the students who have suffered
deductions. In spite of suffering deductions due to unresponsiveness,
the Course Teacher still has the ultimate discretion to not deduct the
three marks (at the end of the course) if the student has managed to
"make-up" by being really responsive subsequently.

(c) The remaining 1 mark will be awarded based upon voluntary classroom
engagement : how often and how well, the student has made unprompted
interventions during the course. The Course Teacher and Assistant will keep
a record of performance.

BASIC READINGS
[Prescribed text book(s)]

1. Civil Procedure Code by Justice C.K. Thakker (C.K. Takwani) 8th Edition
(Students Edition).
2. Mulla’s The Key to Indian Practice, 11th Edition.

(Kindly note that even though these two books are mentioned as basic reading,
they are in fact to be used for additional reading as indicated in the modules- basic
readings for the course are the cases indicated under each topic and the relevant
portions from the handouts)

Describe what you will cover in each module in 4 or more sentences

Module 1: Conceptual Underpinnings

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In this initial module we will consider several of the conceptual themes that could
be said to underlie civil procedural systems and that form the foundation of our
understanding of the subject. The classes are designed to afford maximum scope
for classroom involvement. If you haven’t already gotten used to speaking in class
in the past year at NLS, now’s the time to start!

Module 2: the Scheme of the Code and the Jurisdiction of a Civil Court
In this module, we look at the manner in which the Code of Civil Procedure, 1908,
is organised. We also study the basic rules and cases pertaining to the important
topic of the jurisdiction of a civil court – which can be broken down into territorial,
pecuniary and subject-matter jurisdiction. By the way, do you really know how to
read a case and get to its ratio?

Module 3: Res judicata and res sub judice

In this module, we consider the concepts of res judicata and res sub judice – two
concepts that are a part of every modern legal system; but yet are rather
complicated in their application, as we shall see.

Module 4: Exercises
It’s time to take a break from our reading of rules and cases and try to apply them
to practical situations. Exercises will have to be done in class and the answers will
be discussed and debated.

Module 5: BASIC ASPECTS TO CONSIDER BEFORE FILING A SUIT

Before you institute a suit, the obvious questions that you need to ask include inter
alia, the questions, (a) whom will you make parties to the suit? (b) which causes of
action will you join in the suit? (c) will you file and conduct the suit yourself or
through a pleader? (d) what are the rules relating to institution?

Module 6: Summons
In our adversarial system of civil procedure, in spite of the advances the world has
made in technology, the defendants still need to be formally “summoned” to court
after institution of the suit, to answer the case made out by the plaintiff. Outdated
modes of summons are now giving way to newer, easier forms. But the system still
suffers the lack of much-needed reform.

Module 7 : Pleadings
Perhaps the most important aspect of civil procedure for courtroom practitioners.
How does one prepare one’s case for filing? Can you use ordinary language or is
there a special language to be used in court? What are you supposed to say in your
plaint and written wtatement? What are the pitfalls that you must avoid whilst
drafting pleadings?

Module 8 : Appearance of parties and consequences of non-appearance

What are the consequences of failing to appear when the case is called on for
hearing? What remedies are available thereafter? What if parties fail to present
evidence when required to do so? What rules govern the grant of adjournments?
Would you agree that laxity in applying these rules is the major reason why the
Indian civil justice system is weighed down with delays?

Module 9 : Pre-trial Procedures.

Anglo-American civil procedure provides for various procedural devices that can
be used before the trial - to narrow down issues, pre-empt admissions, discover
probable evidence and avoid a needless trial. The goal is to minimise the time, costs
and vexation that is bound to be incurred by the parties and the courts.

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Module 10: The trial
The trial is the culmination of all the procedures adopted thus far - the ultimate
battle of evidence and argument, law and fact. Partisan gladiators called advocates
match wits in a carefully controlled arena called the courtroom- the game has to
be played according to the rules and no quarters may usually be asked.

Module 11 : Revision of fact-finding techniques and judgment and decree

In this module, we revise the fact-finding techniques studied so far and also carry
out a comparative study of fact-finding techniques used in Anglo-American
systems generally. We ask questions such as: does the Indian fact-finding exercise
give any scope for a judge to intervene? How inquisitorial is our system? Thereafter
we look the rules applicable to the writing of judgments and the drawing up of the
decree. The topics of Interest and Costs are also covered.

Module 12: Interlocutory applications during trial

In this module we look at the steps to be taken when there is death, marriage or
insolvency during the pendency of trial proceedings. WE also look at how suits are
withdrawn or compromised. Very importantly, we study the procedures for the
passing of interlocutory orders to protect interests of the parties pending trial.

Module 13: Execution and suits in particular instances

In this module we will study execution proceedings, suits in particular instances
and miscellaneous provisions under the Code, thus completing essential trial court
procedures. Study of the provisions thus far should make the student conversant
with the essentials of trial-level procedural rules and advocacy.

Module 14: Remedies under the Code: Appeals, Reference, Review and
Revision
In this module we will cover all the remedies available under the CPC once a decree
has been passed. This will involve advocacy at appellate, High Court and Supreme
Court stages.

Module 15: The Commercial Courts regime and how the system thereunder
is different from the regular civil process
By virtue of the Commercial Courts Act, 2015, and further amendments, a radical
new regime is sought to be introduced for the conduct of “high value” civil cases
relating to “commercial disputes”. The procedural steps envisaged under this new
system differ significantly in many aspects – and a courtroom lawyer now needs to
be adept at handling cases under the new system as well.

WEEK-WISE DISTRIBUTION OF COURSE SYLLABUS (60 sessions of 2 hours

each)

General Guidelines:
Pinpoint the readings you will cover each session.

Rely heavily on primary readings: cases, statutes, journal articles and book chapters.

Be specific about the page numbers that you want students to read. Ideally excerpts of
readings will ensure greater levels of preparation.

For each 2 hour session, as a thumb rule prescribe not more than 50 pages of reading.

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WEEK 1

Sessions 1 and 2 – (4 hours)

Module 1: Some food for thought : Classroom Exercises

(we will read the following exercises in class and try to answer the questions that
crop up)

1. The Advocates Act, 1961, in section 24, provides that a person shall be
qualified to be admitted as an advocate if he fulfills the following conditions:
(a) he is a citizen of India;
(b) he has completed the age of 21 years;
(c) he has obtained a degree in Law from any recognized University in India; and
(d) he has successfully passed the Bar Entrance Exam conducted by the Bar
Council of India.
X’s application for enrollment is rejected by the Bar Council without assigning
adequate reasons. X then approaches the High Court to enforce his right to
be enrolled.

(a) What facts would have to be established by X to win his case, assuming that
the Bar Council disputes everything he claims?
(b) In case the Bar Council claims that X is disqualified for enrolment under Rule
24A, since he has been convicted of an offence involving moral turpitude,
what would the Bar Council need to establish to win their case?
(c) If X then admits that he has been convicted of a traffic offence, what sort of
argument might he make to win his case? Would it be a legal or factual
argument?
(d) Suppose, the Bar Council alleges that X has obtained only 35% marks in the
Bar Entrance Exam, whereas the passing mark is 40%- but X denies this and
claims that he has obtained 50%, what issues would arise for determination?
Would these issues be factual or legal?
(e) Suppose, X admittedly has failed his Law degree but still somehow manages
to write the Bar Entrance Exam because of the negligence of the Bar Council
in verifying his records before admitting him to the exam, and subsequently
secures the first rank in the Bar Entrance Exam, what sort of argument might
X make?
(f) Suppose, in example (e), X challenges the constitutional validity of Section
24, what sort of argument would he be making?
(g) Suppose X obtained his Law Degree from Harvard with distinction, would he
be entitled to be enrolled? What arguments might the Bar Council make?

2. Section 138 of the Negotiable Instruments Act, 1881, provides as hereunder:

Dishonour of cheque for insufficiency, etc., of funds in the
account.Where any cheque drawn by a person on an account maintained
by him with a banker for payment of any amount of money to another
person from out of that account for the discharge, in whole or in part, of any
debt or other liability, is returned by the bank unpaid, either because of the
amount of money standing to the credit of that account is insufficient to
honour the cheque or that it exceeds the amount arranged to be paid from
that account by an agreement made with that bank, such person shall be
deemed to have committed an offence and shall, without prejudice to any
other provisions of this Act, be punished with imprisonment for a term
which may be extended to two years, or with fine which may extend to twice

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 the amount of the cheque, or with both: Provided that nothing contained in
this section shall apply unless—
(a) the cheque has been presented to the bank within a period of six months
from the date on which it is drawn or within the period of its validity,
whichever is earlier;
(b) the payee or the holder in due course of the cheque, as the case may be,
makes a demand for the payment of the said amount of money by giving a
notice in writing, to the drawer of the cheque, within thirty days of the
receipt of information by him from the bank regarding the return of the
cheque as unpaid; and
(c) the drawer of such cheque fails to make the payment of the said amount
of money to the payee or, as the case may be, to the holder in due course of
the cheque, within fifteen days of the receipt of the said notice.
Explanation — For the purposes of this section, “debt or other liability”
means a legally enforceable debt or other liability.

(a) If you were the Complainant before the court in a cheque-bouncing case
under section 138, what facts would you need to establish?
(b) If you were the accused, what defences might you establish to win your
case?
(c) Suppose between a case involving X and Y, Y claims that he issued a
cheque as a friendly “gift” to X and that he changed his mind at the stage
of encashment and issued a “stop-payment” order to the Bank concerned,
would Y be liable? What sort of arguments would Y need to make?

3. Section 299 of the Indian Penal Code 1860, provides : Culpable homicide—
Whoever causes death by doing an act with the intention of causing death,
or with the intention of causing such bodily injury as is likely to cause death,
or with the knowledge that he is likely by such act to cause death, commits
the offence of culpable homicide.
Further, section 300 provides as hereunder: Murder— Culpable homicide
is murder, if the act by which the death is caused is done with the intention
of causing death, or—
(Secondly) —If it is done with the intention of causing such bodily injury as
the offender knows to be likely to cause the death of the person to whom
the harm is caused, or—
(Thirdly) —If it is done with the intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or—
(Fourthly) —If the person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death or such bodily injury
as is likely to cause death, and commits such act without any excuse for
incurring the risk of causing death or such injury as aforesaid.

(a) What facts would you need to prove as a Public Prosecutor to secure a
conviction?
(b) If A shoots Z with the intention of killing him and Z dies in consequence.
Does A commit murder? What facts would need to be proved by the
Prosecutor in such a case?
(c) A, knowing that Z is labouring under such a disease that a blow is likely
to cause his death, strikes him with the intention of causing bodily
injury. Z dies in consequence of the blow. Is A guilty of murder, although
the blow might not have been sufficient in the ordinary course of nature
to cause the death of a person in a sound state of health? But if A, not
knowing that Z is labouring under any disease, gives him such a blow
as would not in the ordinary course of nature kill a person in a sound

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 state of health, is A, although he may intend to cause bodily injury, guilty
of murder? What facts would A need to establish to absolve himself of
murder?
(d) If A intentionally gives Z a sword-cut or club-wound sufficient to cause
the death of a man in the ordinary course of nature and Z dies in
consequence. Is A guilty of murder, although he may not have intended
to cause Z’s death?
(e) If A without any excuse fires a loaded cannon into a crowd of persons
and kills one of them. Is A guilty of murder, although he may not have
had a premeditated design to kill any particular individual?
(f) In all the examples given above, what are the “facts in issue”?
(g) Section 84 of the Indian Penal Code, 1860, provides as hereunder: Act
of a person of unsound mind—Nothing is an offence which is done by
a person who, at the time of doing it, by reason of unsoundness of mind,
is incapable of knowing the nature of the act, or that he is doing what is
either wrong or contrary to law. In the above-mentioned examples,
suppose the accused raises the plea of insanity, what would be the
additional facts in issue?
(h) In a particular case, the accused claims that he was intoxicated at the
time of committing the act in question and relies upon section 85 of the
Indian Penal Code, 1860, which provides as hereunder: Act of a person
incapable of judgment by reason of intoxication caused against his
will.—Nothing is an offence which is done by a person who, at the time
of doing it, is, by reason of intoxication, incapable of knowing the nature
of the act, or that he is doing what is either wrong, or contrary to law;
provided that the thing which intoxicated him was administered to him
without his knowledge or against his will. The Accused has established
that he went to a Bar for his routine evening drinks and that after having
drunk several pegs of whisky, the act occurred. Is the accused to be
acquitted? What are the facts in issue?

4. Section 73 of the Indian Contract Act, 1872, provides as hereunder:

Compensation for loss or damage caused by breach of contract.—When
a contract has been broken, the party who suffers by such breach is entitled
to receive, from the party who has broken the contract, compensation for
any loss or damage caused to him thereby, which naturally arose in the
usual course of things from such breach, or which the parties knew, when
they made the contract, to be likely to result from the breach of it.

X is the Plaintiff in a case wherein he alleges the following: he entered into

an Agreement to Purchase with Y on 01-01-2018 to purchase his plot of
land measuring 40’ x 60’ on Hebbal Main Road, Bangalore, for a sum of Rs.
40,000/-. On the same day, X paid Rs. 20,000/- and the balance of the sale
consideration was payable within 3 months from the date of the Agreement
to Purchase ie, by 01-04-2018, whereupon, Y would be bound to execute a
registered sale deed in favour of X. X further alleges that on 28-03-2018 he
went to Y’s house and offered the sum of Rs. 20,000/- - but Y refused to
receive the said sum. Y refused to execute the sale deed in favour of X and
demanded Rs. 30,000/- instead, contending that the price of the land had
gone up in the interregnum period.

(a) Now X comes to you and seeks your advice on what matters he should
prove in court to win his case. What facts should X prove?
(b) X has in his custody, an unregistered Agreement to Purchase dated 01-
01-2018 signed by both parties, bank account statements to show
payment of Rs. 20,000/- and further is ready to depose in court

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 regarding the entire events. What evidence might to you lead to help X
win the case?
(c) Suppose Y came to you instead and asked for your advice, what evidence
might you suggest be collected in the matter to win the case for Y?
(d) When exactly did the cause of action accrue to X in the instant case,
assuming his version of the facts is true?
(e) Since the period of limitation prescribed for suing for breach of contract
is 3 years from the date of the cause of action arising, when will the
limitation period expire in the present case?
(f) If X further claims that he had obtained a bank loan of Rs. 40,000/- with
interest at 12% p.a. to buy the house, how much might you claim for
damages?
(g) If X further claims that he suffered a heart attack on 28-03-2018 after
the altercation in Y’s house and spent Rs. 5 lakhs towards surgery, etc.,
and that further his earning capacity has reduced by 30%, how much
might he be able to claim by way of damages (assuming he was earning
12 lakhs per annum and that he would have a working life of 8 more
years)?
(h) If Y alleges that the contract is vitiated by fraud and misrepresentation,
what would be the facts in issue in the case?
(i) If Y alleges that he was in a state of intoxication when he signed the
agreement, what would be the facts in issue in the case?
(j) If Y admits that the agreement was executed with valid consent but that
X tendered only Rs. 15,000/- on 28-03-2018, what would be the issues
in the case?

5. Section 13 of the Hindu Marriage Act, 1955, provides as hereunder:

Divorce
(1) Any marriage solemnised, whether before or after the commencement of
this Act, may, on a petition presented by either the husband or the wife, be
dissolved by a decree of divorce on the ground that the other party—:
(i) has, after the solemnisation of the marriage, had voluntary sexual
intercourse with any person other than his or her spouse; or
(ia) has, after the solemnisation of the marriage, treated the petitioner with
cruelty; or
(ib) has deserted the petitioner for a continuous period of not less than two
years immediately preceding the presentation of the petition; or
(ii) has ceased to be a Hindu by conversion to another religion; or
(iii) has been incurably of unsound mind, or has been suffering continuously

or intermittently from mental disorder of such a kind and to such an extent

that the petitioner cannot reasonably be expected to live with the
respondent, or
(iv) has been suffering from a virulent and incurable form of leprosy; or
(v) has been suffering from venereal disease in a communicable form; or
(vi) has renounced the world by entering any religious order; or
(vi) has not been heard of as being alive for a period of seven years or more
by those persons who would naturally have heard of it, had that party been
alive.

(a) X and Y have been married for 6 years and after trouble started in their
marriage, X (the husband) has approached you seeking divorce. He
explains to you that his wife, though initially obedient, now frequently
fails to do the dishes and keep house in a nice manner, inviting his
wrath. Consequently, fights erupt, usually ending in a “beating” to Y. In
spite of repeated beatings, Y has failed to mend her ways and sometimes
deliberately fails to do the housework just to taunt X. X says coming

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 home every evening to an unkempt house, dirty dishes and unruly kids
have made his life miserable. He wants a divorce. What
enquiries/research would you make to help X and would these enquiries
be legal or factual? What kind of evidence would you suggest that your
client gathers?
(b) If Y had come to you for divorce, what enquiries would you make?What
kind of evidence would you suggest that your client gathers?
(c) If X admits to you that he recently converted to Islam and that he wishes
to convert his family too, what would you advise X?
(d) X secretly confides in you the fact that his wife had a boyfriend before
marriage. How would you help X?
(e) Y comes to you and states that X suffers from depression. She says that
when Deepika Padukone was on TV this one time, talking about
depression, X exclaimed “I have that too”! In fact, there a times when X
becomes sullen and withdrawn and goes into a state of inactivity,
engaging in drug use. How would you help Y get a divorce?
(f) In the trial, it comes out that both X and Y have been unfaithful after
marriage. Is there any chance that you might still win the case for X?
(g) X and Y’s children, A,B and C, all depose in court on behalf of your client
Y and give evidence to the effect that there have been several fights over
the years which have usually ended in “beatings” for Y; X uses a stick
kept in pantry when he gets really angry; that on one occasion he beat
up A so bad that a doctor had to be called; and that on yet another
occasion X got into a quarrel with a neighbor over car-parking space and
ended up assaulting the neighbor- an FIR was filed in the police station
but the case was withdrawn after reconciliation. Y denies all this in his
evidence before court and in his written statement. In the case filed by Y
for divorce on the ground of cruelty, what would be the facts in issue?
(h) Y tells you, her lawyer, that X is HIV+ but that the disease is still in its
infancy. However, she explains that it happened because of irregular
blood transfusion at hospital when X was giving blood to save Y’s life -
when she was hospitalized during the delivery of her second child. She
tells you that she still loves X. Does Y have a case?
(i) In example (h), how would you argue for X? What might the issues of the
case be?

Session 3 – (2 hours)

Module 1: Conceptual themes underlying civil procedure

Students will be required to read the articles indicated as mandatory reading and
may also look at the additional reading indicated.

A. What is the difference between a question of fact and a question of law?

• Can there be mixed questions of law and fact? Is there a genuine
ontological/epistemological distinction and is that relevant?
• Note the definition of “fact” in section 3 of the Indian Evidence Act,
1872. Has “law” also been defined under the Act?
• Isn’t everything in the cosmos a phenomenon or “fact”?

B. What is the difference between substantive law and procedural law and
how is that distinction useful?

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 • Salmond: “The Law of Procedure may be defined as that branch of
the law which governs the process of litigation; it is the law of actions
(civil or criminal); the residue is substantive law- and it relates not to
the process of litigation, but to its purposes and subject-matter.
• Why does Salmond think it would be incorrect to define the
distinction thus: “substantive law defines the rights, while procedural
law the remedies”?
• Is the distinction between Procedural Law and Substantive Law
useful?
• Can there be rules of procedure which in their practical application,
are equivalent to rules of substantive law? Give some examples.

C. What is the concept of “cause of action”? When does it arise? Is it the

procedural law or the substantive law that determines when a cause of
action arises?

D. What is the law of evidence all about?

(a) How has James Fitzjames Stephen, the framer of the Indian Evidence
Act, 1872, broken up the subject in his Introduction to A Digest on the
Law of Evidence?

(b) Relevancy and Admissibility:

• What is the difference between “facts in issue” and “relevant facts”
in section 3 of the Indian Evidence Act, 1872?
• Is relevancy a matter of common-sense or a matter of law?
• Do you agree with Thayer that Stephen has made “a splendid
mistake” in defining relevancy under the Indian Evidence Act,
1872, when he ought to have defined “admissibility” instead?
• Do you think Thayer and his great student Wigmore dealt with
the subject of relevancy better? What are the two axioms of
relevancy as per them?
• What are the four categories of facts that are “relevant” as per
common-sense but which are nonetheless excluded by the Law of
Evidence as a matter of policy? And what are the exceptions to
these exclusions?

(c) Manner of proving facts:

• Some facts need not be proved at all. Explain.
• Every fact that requires proof needs to be proved by oral or
documentary evidence. Look at the definition of “evidence” under
the Indian Evidence Act, 1872. Why are “material objects” not
included under the definition?
• Oral evidence must always be direct – section 60 of the Indian
Evidence Act, 1872.
• What is the difference between primary and secondary
documentary evidence?
• Is documentary evidence superior to oral evidence?

(d) Who should prove and the manner of proving:

• Who has to prove the facts in issue or the relevant facts?
• Can a witness be compelled to testify?
• What is the manner of examination of witnesses?

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 (e) What areas of the Law of Evidence are excluded by Stephen’s break-
up of the subject?
• Issues, presumptions, rules pertaining to procuring of witnesses
and documents, evidence on commissions, manner of
authenticating depositions and so on. These topics are included
by Stephen in the substantive law, or under civil and criminal
procedure.

(f) Definition of “proved” in section 3. Other concepts such as

admissibility, weight, appreciation of evidence.

BASIC READING
1. Chapter 15 of “The Law of Procedure” in Salmond on Jurisprudence,
Twelfth Edition.
2. Introduction to A Digest of the Law of Evidence by James Fitzjames
Stephen, Second Edition 1991.

ADDITIONAL READING
• Chapter 3: The Rationalist Tradition of Evidence Scholarship In
Rethinking Evidence : Exploratory Essays by William Twining, 1994.
• Chapter 6: What is the Law of Evidence? In Rethinking Evidence :
Exploratory Essays by William Twining, 1994.

WEEK 2
Sessions 4 and 5 – (4 hours)

Module 1: FURTHER THEORETICAL ISSUES

• The differences between adversarial and inquisitorial systems

• What is commonly understood to be the “core” difference between

adversarial and inquisitorial systems? The role of the trial judge in the fact-
finding process i.e., the process of detecting, collecting and presenting
evidence before the court: whether the trial judge is supposed to be an active
participant in the search for Truth or merely a “potted plant”. In the
adversarial system, truth comes out through a contest between partisan
sides whereas in the inquisitorial system, it comes out through an inquest
held by the judge. Under the adversarial system, lawyers play the major
roles whereas under the inquisitorial system, they are meant to assist the
judge in the search for Truth. Does cross-examination exist in inquisitorial
systems?
• What other differences generally exist between the common-law countries
and the civil-law countries? Generally, inquisitorial systems are civil-law
systems whereas adversarial systems are case-law based. There are no
exclusionary rules of evidence in inquisitorial systems; and the judges are
career judges i.e., persons who study law to become judges.
• Damaska’s classification of procedural systems based on two political
factors: the manner in which procedural authority is organized (hierarchical
or co-ordinate) and the purpose to be served by the machinery of justice

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 (policy implementation or conflict resolution). Consequently, procedural
systems can now be classified under four heads.

• The value of Truth in adjudication

How important is Truth in the adjudicatory process? Is it an absolute goal
in procedural systems? What other factors might influence procedural
systems?

• Procedure and Justice

Is procedure the handmaiden of justice or is procedure justice? Why might
people believe in obeying judgments that they know are erroneous on facts
or law?

• The principles of English Civil Justice

What are the principles that could be said to underlie English Civil Justice
as per Sir Jack Jacob in The Fabric of English Civil Justice? Why does he use
the phrase “Civil Justice” instead of “Civil Procedure”?

• The “principles” of civil procedure rather than cases and rules

A good lawyer remembers his statutes and cases but a great one remembers
the principles that underlie them. Discuss in the context of the Civil
Procedure Code, 1908, and the manner in which interpretive issues have
been decided thereunder.

Basic Reading:
• Chapter 1 of The Fabric of English Civil Justice, by Sir Jack IH Jacob,
Stevens and Sons, London, 1987.
• The German Advantage in Civil Procedure, John H. Langbein, 52 Un. of
Chicago LR 823.

Additional Reading :
• User-friendly Civil Procedure: Pragmatic Proceduralism Slouching Away from
Process Theory, Linda S.Mullenix, Fordham Law Review.
• Procedural Justice, Lawrence B. Solum, 78 Cal LR 181.
• Adversarial and Inquisitorial Models of Civil Procedure, by JA Jolowicz, 52
ICLQ 281.
• Managerial Judges, by Judith Resnik, 96 HLR 374.
• Truth in Adjudication, by Mirjan Damaska, 49 Hastings Law Journal 289.
• Our Constitutionalized Adversary System, by Monroe Freedman, 1 Cha.L.
Rev. 57.
• The Faces of Justice and State Authority: A Comparative Approach to the
Legal Process, by Mirjan Damaska, Yale University Press, New Haven and
London, 1986.

WEEK 2

Session 6 – (2 hours)
Module 2: The Scheme of the Code

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 • The 1908 Code contains 158 sections and 51 Orders in Schedule 1.
Schedule 1 includes the forms contained at the very end.
• What is the difference between the “body of the Code” and the Rules of the
Code? Where has the phrase “body of the Code” been used in the Code?
Sections 7,8,96,100,104,121,128.
• See section 2 (1): “Code” includes rules; section 2(18) “rules” means
rules and forms contained in the 1st Schedule or made under section 122 or
section 125.
• Note section 121: rules in the 1st Schedule shall effect as if enacted in the
body of this Code. Section 128: rules shall not be inconsistent with the
provisions in the body of the Code.
• Note Section 129: Power of High Courts to make rules with regard to their
original civil jurisdiction. Do these rules need to be in conformity with the
Rules in the Code?
• Section 127: Rules made by the High Courts shall have effect as if they had
been contained in the First Schedule.
• What are the differences between the “body of the Code “and the Rules? The
sections confer power/jurisdiction whilst the rules regulate the manner of
their exercise; the sections are broadly framed whereas the rules are
specific; the sections can only be altered by legislature whereas the rules
can be altered by the High Courts.
• Chandra Bhushan Mishra vs. Smt. Jayathri Devi AIR 1969 ALL 142
(FB): the “rule” contemplated in section 158 is the amended rule. But note
Jagdish Sahai’s dissent: the rule contemplated in section 158 is not the
amended rule but the un-amended one which continues to exist and which
has only been eclipsed for the State where it has been amended. However,
Section 127 makes it clear. See also State of UP vs. Pt Chandra Bhushan
Mishra (1980) 1 SCC198.

BASIC READING
• Sections 2 (1), 2(18), 121,127, 128, 129.
• Chandra Bhushan Mishra vs. Smt. Jayathri Devi AIR 1969 ALL 142 (FB)
• State of UP vs. Pt Chandra Bhushan Mishra (1980) 1 SCC198

ADDITIONAL READING
• Mani Mohan Mandal vs Ramtaran Mandal AIR1917 Cal 657
• Vareed Jacob vs. Sosamma Geevarghese (2004) 6 SCC 378
• Mahalaxmi Tent Factory vs. Kamla Devi 1974 Raj Law Weekly 243
• Part 1 of Takwani.

Module 2: PECUNIARY JURISDICTION

• Which sections of the Code relate to pecuniary jurisdiction? Sections

3,6,15, 21, 21A, 99.
• Are pecuniary limits defined under the Code?

Page 17 of 90
 • What are the 3 classes of civil courts under the Karnataka Civil Courts
Act, 1964?
• Which is the Principal Civil Court of Original Jurisdiction within a district
as per the said Act?
• What is the pecuniary limit of the jurisdiction of a Civil Judge under section
17?
• To which court shall an appeal lie from the decree of a Civil Judge Senior
Division and why? Section 19.
• Which suits can a Court of Small Causes take cognizance of under section
8 of the Karnataka Small Cause Courts Act, 1964?
• Note the exclusive jurisdiction of the Court of Small Causes – section 9.
• What is the jurisdiction of the Bangalore City Civil Court under the
Bangalore City Civil Court Act, 1979? Section 3.
• What is the jurisdiction of a Family Court under section 7 of the Family
Courts Act, 1984? Is the jurisdiction exclusive?
• Kiran Singh vs. Chaman Paswan AIR 1954 SC 40: “prejudice” in matters
relating to lack of pecuniary jurisdiction.
• Note Order 7 Rule 11 (b).

BASIC READING
• Sections 3,6,15, 21, 21A, 99. Order 7 Rule 11 (b).
• Relevant provisions in the Karnataka Civil Courts Act, 1964, the Karnataka
Small Cause Courts Act, 1964, the Bangalore City Civil Court Act, 1979,
and the Family Courts Act, 1984.
• Kiran Singh vs. Chaman Paswan AIR 1954 SC 40

ADDITIONAL READING
• Chapters 1 and 4 of Part II Takwani.
• Tara Devi vs. Sri Thakur Radha Krishna Maharaj1987 (4) SCC 69: the right
to value the relief claimed when certain types of variables involved.
• Kalyandas Anantlal vs. Gangabai AIR 1961 MP 67: can a court pass a decree
in excess of its pecuniary jurisdictional limits?

WEEK 3
Sessions 7 and 8 – (4 hours)

Module 2: TERRITORIAL JURISDICTION

• Which sections of the Code relate to territorial jurisdiction? Sections

16,17,18,19,20, 21, 21A, 99.
• Are territorial limits defined under the Code? No- but under the Karnataka
Civil Courts Act, 1964, section 13.
• Where would you file a suit involving rights or interests in immovable
property? Sections 16, 17, 18.
• Where would you institute a suit relating to compensation for wrongs to
person or movables? Section 19.
• What about other suits? Section 20.
• Where would you file a suit if the relief regarding immoveable property can
be obtained entirely through the personal obedience of the Defendant?
Proviso to section 16. What about suits for the recovery of movable
property actually under distraint or attachment? Section 16(f).

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 BASIC READING
• Sections 16,17,18,19,20, 21, 21A, 99.
• Karnataka Civil Courts Act, 1964, section 13.

ADDITIONAL READING
• Takwani Part 2 Chapter 4 (4)
• Union Bank of India vs. M/s Logic Systems Pvt Ltd AIR 1992 Delhi 153: if
the defendant has to go out of the jurisdiction then proviso to section 16
would not apply.
• State of Maharashtra vs. Sarvodaya Industries AIR 1975 Bom 197: “wrong
done” includes the resultant damage. Do you agree?
• South East Asia Shipping Co Ltd vs. Nav Bharat Enterprises 1996(3) SCC
443: “cause of action”.

WEEK 3

Session 9 – (2 hours)

Module 2: SUBJECT-MATTER JURISDICTION

• Which sections of the Code relate to subject-matter jurisdiction? Section 9.

• What are suits of a “civil nature”? Are suits raising questions of religious
rites or ceremonies only, maintainable under section 9?
• Firm Seth Radha Kishan vs Administrator Municipal Committee
Ludhiana AIR 1963 SC 1547– the “sambhar salt” case- express bar in
taxing statute- the crucial question is whether the authority in question has
“acted under the Act” or “outside the Act”- only in the latter case a suit will
lie.
• Dhulabhai vs State of Madhya Pradesh AIR 1969 SC 78: Express bar in
taxing statute: 7 principles summarised by Hidayatullah inter alia that: if
there is a challenge to the provisions of the Act as ultra vires or where a
provision is already declared ultra vires, a suit lies.
• Premier Automobiles Ltd vs Kamlekar Shantaram Wadke (1976) 1 SCC
496 : no express bar under Industrial Disputes Act, 1947- still implied bar
by placing reliance on dicta of Willes J. in Wolverhampton New Waterworks
Co vs. Hawkesford (1859) 6 CB (NS) 336 and Doe vs Bridges: “ where an Act
creates an obligation and enforces the performance in a specified manner,
we take it to be the general rule that performance cannot be enforced in
any other manner.”
• Lack of subject-matter jurisdiction is fatal and can be raised at any time,
even at execution stage (not so with regard to lack of territorial and
pecuniary jurisdiction): Chandrika Misir vs Bhaiya Lal (1973) 2 SCC
474; (additional cases) - Sushil Kumar Mehta vs. Gobind Ram Bohra (1990)
1 SCC 193 and Chief Engineer, Hydel Project vsRavinderNath 2008(2) SCC
350.

BASIC READING
• Section 9.
• Firm Seth Radha Kishan vs Administrator Municipal Committee Ludhiana
AIR 1963 SC 1547
• Dhulabhai vs State of Madhya Pradesh AIR 1969 SC 78
• Premier Automobiles Ltd vs Kamlekar Shantaram Wadke (1976) 1 SCC 496
• Chandrika Misir vs BhaiyaLal (1973) 2 SCC 474.

Page 19 of 90
ADDITIONAL READING
• Takwani, Part 2 Chapter 1(11).
• Wolverhampton New Waterworks Co vs. Hawkesford (1859) 6 CB (NS) 336
• Sri Sinna Ramanuja Jeer vs. Sri Ranga Ramanuja Jeer AIR 1961 SC 1720 (4
judges): Explanation 1 to section 9- a suit in which right to an office is
contested is a suit of a civil nature even though it may involve questions as
to religious rites and ceremonies. But what are the essential features of an
“office” as per the said decision?
• Krishan Lal vs State of JK 1994(4) SCC 422: express bar in J & K (Govt.
Servants) Prevention of Corruption Act, 1962- order impugned was deemed
to be “outside the Act” and hence suit was maintainable.
• Sushil Kumar Mehta vs. Gobind Ram Bohra (1990) 1 SCC 193 and Chief
Engineer, Hydel Project vs Ravinder Nath 2008(2) SCC 350.
• TRANSFER OF SUITS: Sections 22 to 25 of the Code. The power to transfer
overrides the principle of dominus litus. Note generally the power of courts
to transfer suits and civil proceedings which overrides the principle of
dominus litus.

WEEK 4

Sessions 10 and 11 – (4 hours)

Module 3: RES JUDICATA

• Section 11 of the Code.

• What are the pre-requisites to be satisfied for the principle of res
judicata to apply?

➢ “Matter directly and substantially in issue”

Actual res judicata: “alleged by one party and either denied or admitted by
the other”: Explanation 3 to section 11. Ishwar Singh vs. Sarwan Singh
AIR 1965 SC 948: Whether the matter has been directly and substantially
in issue would depend upon whether the decision on such issue would
materially affect the decision of the suit. The question has to be decided on
the basis of the pleadings in the former suit, the issues raised, and the
decision in the suit.

Constructive res judicata: Difference between Explanations 3 and 4. Nirmal

Enem Horo vs Jahan Ara Jaipal Singh (1973) 2 SCC 189.

➢ “In a court competent to try such subsequent suit”

• Sulochana Amma vs Narayanan Nair (1994) 2 SCC 14: Court of
“limited jurisdiction” in Explanation 8 includes limited pecuniary
jurisdiction.
• Church of South India Trust vs Telugu Church Council (1996) 2
SCC 520: Court of “limited jurisdiction” in Explanation 8 includes
limited territorial jurisdiction.
• What is the practical effect of these two judgments on the
requirement that the earlier court should have been competent to try
the subsequent suit?

➢ “Heard and finally decided”

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 • Sunderabai vs Devaji AIR 1954 SC 82: earlier compromise decree
would not invoke res judicata but estoppel might apply.

➢ “Between the same parties”

• Pandit Ishwardas vs State of MP (1979) 4 SCC 163: not necessary
that all the parties should be the same- enough if Plaintiff and
contesting Defendant are the same.

➢ “Litigating under the same title”

➢ Res judicata and stare decisis. What is the difference?

➢ Does res judicata apply when the earlier suit has been compromised or
withdrawn, or dismissed for default? Section 12 of the Code.

➢ Can the plea of res judicata be waived? Medapati Surayya vs Tondapu Bala
Gangadhara Ramakrishna Reddi AIR 1948 PC 3 (additional reading)

➢ Res judicata and writ proceedings: cases for additional reading :Daryao vs
State of UP AIR 1961 SC 1457, Amalgamated Coalfields Ltd vs Janapada
Sabha Chhindwara AIR 1964 SC 1013, Devilal Modi vs Sales Tax Officer
Ratlam AIR 1965 SC 1150, State of UP vs Nawab Hussain (1977) 2 SCC 806.

BASIC READING
• Section 11
• Ishwar Singh vs. Sarwan Singh AIR 1965 SC 948
• Sulochana Amma vs Narayanan Nair (1994) 2 SCC 14
• Church of South India Trust vs Telugu Church Council (1996) 2 SCC
520
• Sunderabai vs Devaji AIR 1954 SC 82
• Pandit Ishwardas vs State of MP (1979) 4 SCC 163
• Iftikhar Ahmed vs Syed Meharban Ali (1974) 2 SCC 151
• Nirmal Enem Horo vs Jahan Ara Jaipal Singh (1973) 2 SCC 189.

ADDITIONAL READING & QUESTIONS:

• Chapter 2 of Part 2, Takwani.
• Is an earlier ex parte decree res judicata?
• Is section 11 exhaustive of the principle of res judicata or can one
plead res judicata de hors section 11? Mt Munni Bibi vs Tirloki Nath
AIR 1931 PC 114.
• Is res judicata a jurisdictional issue?
“Even if the court holds the plea of res judicata to be inapplicable, it
will nonetheless invoke some other rule of law to prevent parties
being vexed by multiple suits”. Discuss.
• Sajjadanashin Sayed vs Musa Dadabhai Ummer (2000) 3SCC 350:
whether the matter has been directly and substantially in issue
would depend upon the facts and circumstances of each case; one
would need to examine the plaint, written statement, issues and
judgment; one test is whether that issue was necessary to be decided
and whether the judgment was based on that decision; merely
because an issue has been framed, does not imply it is directly and
substantially in issue.

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 • Mathura Prasad Bajoo Jaiswal vs Dossibai NB Jeejeebhoy 1970(1)
SCC 613: res judicata applies with regard to questions of fact, law
and mixed questions, but not when the earlier decision relates to the
jurisdiction of the court to try the proceedings.
• Gangabai vs Chhabubai (1982) 1 SCC 4: a finding on title in a small
causes court can be regarded as only incidental.
• Sheodan Singh vs Daryao Kunwar AIR 1966 SC 1332: where a former
suit has been dismissed by the court not on merits but for want of
jurisdiction, default of plaintiff’s appearance, non-joinder of
necessary parties, suit being badly framed, technical mistake,
improper valuation, etc., it would not be res judicata. Note however,
that where an appeal against a decree passed on merits is dismissed
on technicalities, it would be res judicata.
• Iftikhar Ahmed vs Syed Meharban Ali (1974) 2 SCC 151: a former suit
between co-plaintiffs would be binding if (a) there is a conflict of
interest, (b) it must have been necessary to decide that conflict to
decide the earlier suit and (c) the court must have actually decided
it.
• Mahadevappa Somappa Bhusaraddi vs Dharmappa Sanna Ningappa
Bhusaraddi AIR 1942 Bom 322. Is this case in conflict with
Sunderabai’s case?
• PK Vijayan vs Kamalakshi Amma (1994) 4 SCC 53.
• Ramadhar Srinivas vs Bhagwandas (2005) 13 SCC 1.
• Medapati Surayya vs Tondapu Bala Gangadhara Ramakrishna Reddi
AIR 1948 PC 3
• Res judicata and writ proceedings: Daryao vs State of UP AIR 1961
SC 1457, Amalgamated Coalfields Ltd vs Janapada Sabha
Chhindwara AIR 1964 SC 1013, Devilal Modi vs Sales Tax Officer
Ratlam AIR 1965 SC 1150, State of UP vs Nawab Hussain (1977) 2
SCC 806.

Module 3: RES SUB JUDICE

• Section 10 of the Code.

• What are the pre-requisites to be satisfied for the principle of res sub
judice to be applied?
• What is the effect of section 10? What is the object of section 10?
• What is the test to determine if section 10 applies?
• What is the effect of contravention of section 10? Pukhraj D Jain vs G
Gopalakrishna (2004) 7 SCC 251 (additional reading)
• Aspi Jal vs Khushroo Rustom Dadyburjor (2013) 4 SCC 333:
object of section 10; test for res sub judice reiterated; entire subject-
matter in the two suits must be the same- not enough that a few
issues are common.

BASIC READING
• Section 10
• Aspi Jal vs Khushroo Rustom Dadyburjor (2013) 4 SCC 333

ADDITIONAL READING & QUESTIONS

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 • Chapter 2 of Part 2, Takwani.
• Can the court invoke its inherent power to stay a subsequent suit to
prevent multiplicity of litigation de hors section 10?
• Nimhans vs C. Parameshwara (2005) 2 SCC 256: the test for res sub
judice is whether a final decision in the previous suit would operate
as res judicata in the subsequent one. The whole of the subject-
matter should be identical in both suits-only then section 10 would
apply. Do you agree?
• Indian Bank vs. Maharashtra State Cooperative Marketing Federation
Ltd (1998) 5 SCC 69: only the trial of the subsequent suit shall be
stayed – no bar to the grant of interim reliefs even if section 10
applicable.
• Pukhraj D. Jain vs G. Gopalakrishna (2004) 7 SCC 251: mere filing of
an application under section 10 is not an embargo on the power of
the court to examine the merits of the case; section 10 merely enacts
a rule of procedure and a decree passed in contravention thereof is
not a nullity.

WEEK 4

Session 12 – (2 hours)

Module 4: PRACTICAL EXERCISES

How well can you answer the following questions?

1. The Advocates Act, 1961, in section 24, provides that a person shall be
entitled to be enrolled as an advocate by the Bar Council if he fulfills the
following 4 conditions:
• he is a citizen of India;
• he has completed the age of 21 years;
• he has obtained a degree in Law from any recognized University in
India; and
• he has successfully passed the Bar Entrance Exam conducted by the
Bar Council.

Sid’s application for enrollment is rejected by the Bar Council without assigning
adequate reasons. He then approaches the High Court by filing a writ petition to
enforce his right to be enrolled. After hearing both sides and after contest, the High
Court exercises its jurisdiction under Article 226 and after recording a finding that
Sid is a citizen of India aged more than 21 years and that he has also obtained a
Law Degree from NLSIU Bangalore, a duly recognized University, passes an order
directing the Bar Council to once again consider Sid’s case for enrolment by only
verifying whether he has passed the Bar Entrance Exam.

After the order by the High Court, the Bar Council passes a fresh order noting that
even though Sid has passed the Bar Entrance Exam, “his degree from NLSIU is
questionable”. Sid once again approaches the High Court in writ jurisdiction
challenging this second order of the Bar Council. In its Counter Affidavit, the Bar
Council now contends that NLSIU students should not be permitted to be enrolled
since the degrees obtained by them are of questionable authenticity. The Bar
Council further stresses upon the fact that it has now produced documentary
evidence to show that Sid’s degree certificate was forged. It argues that this matter

Page 23 of 90
came to light only recently when the Bar Council once again scrutinized Sid’s
enrollment papers.

(a) How would you argue for Sid?

(b) How would you argue for the Bar Council?

2. Name two differences between questions of fact and questions of law.

3. R is the plaintiff in Original Suit No. 25 of 2016 wherein he alleges the

following: he entered into an Agreement to Purchase with S, a resident of
Bangalore, on 01-01-2016 to purchase her plot of land measuring 40’ x 60’
on Hebbal Main Road, Bangalore, for a sum of Rs. 40,000/-. On the same
day, R paid Rs. 20,000/- and the balance of the sale consideration was
payable within 3 months from the date of the Agreement to Purchase ie, by
01-04-2016, whereupon, S would be bound to execute a registered sale deed
in favour of R. R further alleges that on 28-03-2016 he went to S’s house
and offered the sum of Rs. 20,000/- - but she refused to receive the said
sum. S refused to execute the sale deed in favour of R and demanded Rs.
30,000/- instead, contending that the price of the land had gone up in the
interregnum period.

R, who lives in Kamalapuram, Tamil Nadu, has now instituted OS No. 25 of

2016 before the Court of the Civil Judge, Kamalapuram against S seeking
specificperformance of the agreement to sell dated 01-01-2016. He further
contends that possession of the property was given to him on 01-01-2016
itself and that his servant Manick is now residing on the plot after
constructing a small shed therein.

(a) What contentions regarding jurisdiction might you, as S’s lawyer,

take in your written statement to be filed in the Court of the Civil
Judge at Kamalapuram?

(b) S further tells you that travelling to Kamalapuram would be tedious

for her and that steps should be taken to see that the matter is tried
in Bangalore itself. What advise would you give her?

(c) Suppose further, that OS No. 25 of 2016 ends up being tried in

Kamalapuram and that the Civil Judge there passes a decree on 01-
06-2017against R, rejecting his case for specific performance on the
ground that he was never ready and willing to pay the balance sale
consideration. The Court however records a finding in favour of R, to
the effect that his servant Manick is in possession of the property,
but nonetheless dismisses his case on other grounds.Now S
institutes Original Suit No. 2156 of 2017 before the City Civil Court
at Bangalore against R, seeking permanent injunction restraining R
from interfering with her alleged possession of the property. In the
said suit, how would you argue for R on the question of possession?

(d) Suppose further, that a local real estate goonda by name Dhulabhai
forcibly occupies the property by throwing Manick out. He then
institutes a suit OS No. 883 of 2018 against R and seeks permanent
injunction restraining R from interfering with his possession of the
property. Would the matter be res judicata?

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4. What are the 3 differences between the “body of the Code” and “the Rules”?

5. X and Y have been married for 6 years, living in Bangalore, and after trouble
started in their marriage, X (the husband) has approached you seeking
divorce. He explains to you that his wife, though initially obedient, now
frequently fails to do the dishes and keep house in a nice manner, inviting
his wrath. Consequently, fights erupt, usually ending in a “beating” to Y. In
spite of repeated beatings, Y has failed to mend her ways and sometimes
deliberately fails to do the housework just to taunt X. X says coming home
every evening to an unkempt house, dirty dishes and unruly kids have made
his life miserable. He wants a divorce. He also tells you that he is ready to
give alimony to the tune of Rs. 15 lakhs to Y. Given that the pecuniary limits
of the jurisdiction of the Small Causes CourtCourtat Bangalore is Rs. 2
lakhs, where would you file the divorce case?

6. What is the “core” difference between adversarial and inquisitorial systems?

7. Explain the facts and ratio of Lakshmi Narain vs First Addnl District Judge,
Allahabad AIR 1964 SC 489.

8. The Rules of the Bombay High Court (original jurisdiction) provide that any
appearance, application or act in the court may be done by a party in person
or by a pleader appearing on his behalf. Relying on Order 3 Rule 1 CPC
1908, X instructs his recognized agent Y to file a suit in the said court.
However, the objection is raised by the Registry and also the Court that the
suit has not been duly instituted since a recognized agent is not permitted
to appear, apply or act in the court as per the Bombay High Court Rules
(original jurisdiction) made as per the Letters Patent establishing the
Bombay High Court. However, Y argues that Order 3 Rule 1 CPC 1908
permits even a recognized agent to do so. Would Y be entitled to file?

9. X wishes to institute a suit in Davangere district, Karnataka, for damages

for trespass to the tune of Rs. 7,50,000/-. Would you institute the suit
before the Civil Judge, the Senior Civil Judge or the District Court? Where
would an appeal lie from the judgment and decree passed by the court of
first instance?

10. Section 2(1)(e) of the Arbitration and Conciliation Act, 1996, defines “court”
as “the Principal Civil Court of original jurisdiction in a district”. Section 34
of the said Act further provides for an application to the “court” to set aside
an arbitral award. In a given case where your client wishes to challenge the
award of the Arbitrator under section 34, to which court would you make
the application – the court of the Civil Judge, Senior Civil Judge or the
District Court and why?

11. X, Y and Z were in a partnership which was at will. After disputes arose, X
has instituted a suit for dissolution and accounts before the Civil Judge at
Mysore. After trial, the Civil Judge has found that X is due a sum of Rs. 7.5
lakhs towards his share in the partnership profits. Can the court pass a
decree to that extent in favour of X and would the court have jurisdiction to
do so? In an appeal filed by Y, how would you argue in favour of X? Could
Z institute a suit to set aside the decree obtained by X on the ground of lack
of jurisdiction?

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12. What did William Twining mean when he wrote that in spite of JF Stephen’s
masterpiece of compression namely, the Indian Evidence Act, 1872,
“elephantiasis” has nonetheless occurred?

13. X residing in Bangalore, publishes defamatory statements against Y in

Mysore. Y resides in Mangalore. Where could you file the suit for Y?

14. X claims coparcenary interest in three houses, located in Mysore, Dharwad

and Salem (Tamil Nadu).

(a) Can a suit be filed for partition of the alleged joint family properties by
X against his sister Y (who resides in Chennai) in Salem?

(b) Assume in the above case that X institutes a partition suit against his
sister Y before the Civil Judge at Mysore. Now Y wishes to have the case
transferred to the Civil Judge at Salem. To which court would she have
to apply?

(c) Suppose Y contends that she is a widow with small children and unable
to travel without escort, would that constitute a valid ground? What if
she further alleges that the Karnataka judges are biased against Tamil
Nadu people – would that constitute a valid ground for transfer?

15. Anand living in Bangalore, advances a sum of Rs. 20 lakhs to Barista living
in Meerut, as a loan, at an agreed rate of 12% p.a. interest, by sending a
cheque for Rs. 20 lakhs to Barista by post to his office located in Amritsar.
A written loan agreement is executed at Dandelhi. Barista encashes the
cheque in his bank account maintained at Amritsar. Thereafter, Barista fails
to repay the sum advanced as agreed between the parties. Anand issues a
legal notice from Bangalore to Barista’s office in Amritsar. Barista then
replies to the notice from Amritsar, denying the liability. In which places can
Anand sue Barista?

16. Define “cause of action”?

17. A institutes a suit against her former husband B seeking ½ share in the flat
purchased in their joint names during the subsistence of their marriage.
The flat is located at Bangalore and the suit is instituted before the City Civil
Court at Bangalore. What objection could you possibly raise on behalf of B
pertaining to the jurisdiction of the court to try the suit? Suppose the City
Civil Court tries the suit and grants a decree in favour of A. Thereafter A
seeks to execute the decree against B by attachment and sale of the
property. At that stage can B successfully resist the execution proceedings?
How?

18. Is Truth an absolute goal in procedural systems?

19. John Pvt Ltd (principal office located at Patna) and ABC Pvt Ltd (principal
office at Chennai) enter into an agreement for software development at
Bangalore. The terms of the agreement are inter alia, that ABC Pvt Ltd shall
develop the necessary software for John Pvt Ltd at their Bangalore office for
a sum of Rs. 3 crores within 2 years. The contract further provides that in
case of dispute, the Court at Hyderabad alone shall have jurisdiction. After
disputes arise, John Pvt Ltd wishes to sue ABC Pvt Ltd at Hyderabad. Will
the suit be maintainable?

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 20. Name 2 basic assumptions made by the Rationalist Tradition of Evidence
Scholarship as per William Twining?

21. X, the former head priest of a temple in Banaras, institutes a suit against
Y, the current priest, as well as against the Hindu Religious Institutions
Board of Uttar Pradesh seeking a declaration that he has been wrongfully
removed from service and that he should continue to be treated as the head
priest and to enjoy the lands attached to the said position. Would such a
suit be maintainable?

22. Wipro Pvt Ltd, which has its Principal Office at Bhopal, issues a letter
wherein it offers to sell all its old stock of computers for a sum of Rs. 3.8
crores to M/s Andhra Agencies, a partnership firm located in Tirupati,
Andhra Pradesh. M/s Andhra Agencies reply to Wipro Ltd’s regional office
at Tirupati and agree to buy the old stock. A written agreement is executed
at Tirupati. As per clause 24 of the Agreement, “any dispute arising out of
this sale shall be subject to Bhopal jurisdiction”. Thereafter, M/s Andhra
Agencies pays Rs. 3 crores to the regional office of Wipro Pvt Ltd at
Bangalore as per the agreement. However, Wipro Pvt Ltd fails to deliver the
goods promised on the ground that the entire sale consideration was
payable before delivery. Wipro Pvt Ltd then institutes a suit in the Civil
Court at Bhopal as per clause 24 of the Agreement.

(a) Would the Bhopal Civil Court have jurisdiction in the matter?
(b) Assuming further that M/s Andhra Agencies files a counter – suit
against Wipro Pvt Ltd for breach of contract and for the goods, at which
places would they be entitled to sue?

23. The difference between errors of law and material irregularities or errors of
jurisdiction has been obliterated. Do you agree?

24. X purchases a refrigerator for Rs. 60,000/- from Kelvinator Pvt Ltd but soon
discovers that the product is faulty and does not work. He wishes to recover
his money by filing a civil suit in the civil court claiming damages for tortious
liability. However, his wife points out that the Consumer Protection Act,
1986, would provide a speedier remedy in such cases since the Act would
squarely cover compensation claims for defective goods. The Consumer
Protection Act, 1986, does not expressly bar the jurisdiction of the civil court
to entertain disputes that might be entertained under the Act. Would a civil
suit be maintainable? What factors would need to be kept in mind whilst
determining this aspect?

25. If the judgment and decree of a court has been stayed by an appellate
court, would the judgment still operate as res judicata?

WEEK 5

Sessions 13 and 14 – (4 hours)

Module 5: PARTIES TO SUIT AND FRAME OF SUIT

• Where are the provisions contained relating to parties to suit and frame of
suit? Orders 1 and 2.

Page 27 of 90
 • Which are the enabling provisions in the Code that permit joinder of parties
and causes of action? Order 1 Rule 1 (joinder of Plaintiffs); Order 1 Rule 3
(joinder of Defendants); Order 2 Rule 3 (joinder of causes of action) and
Order 1 Rule 7 (joinder of Defendants when Plaintiff in doubt). Order 1
Rule 8 (representative suits).
• Hema Khattar vs Shiv Khera (2017) 7 SCC 716: “same act or series of
acts or same transaction or series of transactions” and “a common question
of law or fact”.
• What are the exceptions to the general rules relating to joinder of parties
and causes of action? Order 1 Rule 6 (contracts); Order 2 Rule 4
(immovable property) and Order 2 Rule 5 (administrators, executors, heirs).
• Can the court, in cases of joinder, nonetheless order separate trials? Yes.
Order 1 Rule 2, Order 1 Rule 3A, and Order 2 Rule 6.
• In whose favour can judgment be given? Order 1 Rules 4, 5.
• Is misjoinder of parties or causes of action fatal? Order 2 Rule 7, Order 1
Rule 13, Section 99, Order 1 Rule 9.
• Is non-joinder of a necessary party fatal to the suit? Order 1 Rule 9, section
99. Who is a necessary party?
• Kanakarathnammal vs VS Loganatha Mudaliar AIR 1965 SC 271: even
if you have a good case on merits, non-joinder can be fatal.
• Power of the court to implead parties: Order 1 Rule 10. If a necessary party
has not been impleaded in a suit, should the court exercise its powers under
Rule 10 or should the suit be dismissed for non-joinder?
• If a suit is dismissed for non-joinder of a necessary party, is a fresh suit on
the same cause of action barred?
• Bar against splitting of claims/reliefs: Order 2 Rules 1 and 2: What is the
difference between a “claim” and a “relief” in Order 2 Rule 2 ?
• What are the requirements for Order 2 Rule 2 to apply? (i) same cause of
action in both suits (ii) Plaintiff entitled to more than 1 relief relating to the
same cause of action (iii) without leave of the court omits to sue for all the
reliefs.
• Gurbux Singh vs Bhooralal AIR 1964 SC 1810: Order 2 rule 2 being a
technical plea, the Defendant must plead and prove the bar by producing
the pleadings in the earlier suit.
• Another enabling provision: Representative Suits: Order 1 Rule 8. What
are the essential characteristics of a representative suit?
• Chairman, TN Housing Board vs TN Ganapathy 1990 (1) SCC 608:
“community of interest” a larger concept than “cause of action”.
• Order 1 Rule 8A: import from USSR.
• If there are multiple parties in a suit, are they all entitled to cross-examine
and argue the case to the same extent? Order 1 Rules 11, 12.

BASIC READING
• Orders 1 and 2.
• Hema Khattar vs Shiv Khera (2017) 7 SCC 716:
• Kanakarathnammal vs VS Loganatha Mudaliar AIR 1965 SC 271
• Gurbux Singh vs Bhooralal AIR 1964 SC 1810
• Chairman, TN Housing Board vs TN Ganapathy 1990 (1) SCC 608

ADDITIONAL READING & QUESTIONS:

• Chapter 5 of Part 2, Takwani.

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 • What is the difference between res judicata and the bar in order 2 rule 2?
• Is Order 2 Rule 3 subject to Order 1 Rule 1 and Order 1 Rule 3 or is it the
other way round?
• Ramendra Nath Ray vs Brojendra Nath Dass AIR 1918 Cal 858: Order 1 Rule
3 deals not just with joinder of parties but also joinder of causes of action.
• VPR Prabhu vs SPS Prabhu AIR 1985 Ker 265: in a suit for dissolution and
accounts of a partnership firm, every partner is a necessary party.
• Kasturi vs Iyyamperumal 2005(6) SCC 733: necessary parties in a suit for
specific performance. The tests to determine if a person is a necessary party:
(1) there must be a right to some relief against such party (2) no effective
decree can be passed in the absence of such party.
• Bengal Waterproof Limited vs Bombay Waterproof Manufacturing Co 1997(1)
SCC 99: Order 2 Rule 2 cannot be invoked in cases involving continuous or
recurring causes of action.
• State of Maharashtra vs National Construction Co Bombay (1996) 1 SCC 735:
a bank guarantee gives rise to a cause of action distinct from the underlying
contract for which it has been given.
• Kunjan Nair Sivaramanan Nair vs Narayanan Nair (2004) 3 SCC 277: res
judicata emphasizes the Plaintiff’s duty to exhaust all available grounds in
support of his claim while Order 2 Rule 2 requires the Plaintiff to claim all
reliefs emanating from the same cause of the action.
• Kumararavelu Chettiar vs Ramaswami Ayyar Indian Appeals Volume LX
273: earlier suit cannot be termed a representative suit where no leave
granted nor notice issued; not res judicata for those not parties to the earlier
suit.

WEEK 5

Session 15 – (2 hours)

Module 5: RECOGNISED AGENTS AND PLEADERS

• Where are the provisions contained pertaining to recognized agents and

pleaders? Order 3. Section 2 (15) “pleader”.
• Who are the three classes of persons who can “appear, apply and act” for a
party in court? The party-in-person, the recognized agent and the pleader.
• Can a recognized agent argue and cross-examine in the case? Aswin
Shambhuprasad Patel vs. National Rayon Corporation Ltd AIR 1955
Bom 262.
• Who are the recognized agents of a party? Order 3 Rule 2.
• How is a pleader appointed? Order 3 Rule 4.
• When is the appointment determined? Order 3 Rule 4.
• When is a pleader required to file a Memorandum of Appearance? Order 3
Rule 4. Are Senior Advocates also so required ?
• Is service on a recognized agent or pleader service on the party? Order 3
Rules 3 and 5.
• Under which provision is the court entitled to appoint amicus curiae? Order
2 Rule 10A.

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BASIC READING
• Order 3. Section 2 (15).
• Aswin Shambhuprasad Patel vs. National Rayon Corporation Ltd AIR
1955 Bom 262.

ADDITIONAL READING
• Chapter 7(3) of Part 2, Takwani.
• Hari Om Rajender Kumar vs Chief Rationing Officer AIR 1990 AP 340.

Module 5: HOW ARE SUITS INSTITUTED?

• Where are the provisions contained relating to institution of suits? Section

26 and Order 4.
• How is a suit commenced? Is it always by the presentation of a Plaint?
Section 26, Order 33, Rules 2 and 8.
• How would you define a “Plaint”? Even though not defined in the Code, a
Plaint is “a private memorial tendered to a court in which the person sets
forth his cause of action; the exhibition of an action in writing”. ILR 1899
(22) Mad 494 Assan vs Pathumma. (additional reading)
• Is a defect in filing fatal to the suit or application? Kanhaiaya Lal vs The
Panchaiti Akhara AIR 1949 All 367: once received, the defect is an
irregularity and not fatal. (additional reading)

BASIC READING
• Section 26 and Order 4; Order 33, Rules 2 and 8.

ADDITIONAL READING
• Chapter 5 of Part 2, Takwani.
• Kanji MuljiKananivsManglabenParmanand AIR 1969 G 308.
• ILR 1899 (22) Mad 494 AssanvsPathumma.
• KanhaiayaLalvs The PanchaitiAkhara AIR 1949 All 367:

Module 6: ISSUE AND SERVICE OF SUMMONS

• What is a “summons”? When will it be issued ? Section 27: where a suit

has been duly instituted, within 30 days thereof a summons will be issued
to the Defendant to appear and answer the claim.

• What are the technical requirements of a valid summons and what does
it contain? Summons shall be signed by the judge and shall be sealed with
the seal of the court (Order 5 rule 1 (3)); it shall be accompanied by a copy
of the Plaint (Rule 2); the day for appearance of the Defendant shall be fixed
(Rule 6); the summons shall also order the Defendant to produce all
documents or copies as per Rule 1A of Order 8 in his possession or power
upon which he seeks to rely in support of his case (Rule 7); if the summons
is for final disposal, it shall also direct the Defendant to produce his
witnesses on the date fixed (Rule 8).

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 • For what purposes can summons be issued under the Code? The
summons could be for settlement of issues only or for final disposal. (Rule
5). Abdul Haj vs. Rahamathullah AIR 1974 Patna 244: depending on the
complexity of the case, only in simple cases summons will be for final
disposal.

• What are the requirements of appearance of the Defendant after service

of summons? The Defendant may appear in person, or by a pleader duly
instructed or by a pleader accompanied by a duly instructed person (Rule
1 (2)). However, the court may require the Plaintiff/Defendant to appear in
person if Rule 4 is satisfied. (Rules 3 and 4).

• What are the different types of service of summons contemplated

under the Code and what are the requirements for each type? Delivery
of summons by the court (Rule 9), through Dasti or hand summons (Rule
9A), service by affixture (Rule 17) and Substituted Service (Rule 20).

• What are the requirements with regard to delivery of summons by the

court? Rules 9, 10, 11, 12, 13,14,15,16,18 and 19.

• What are the different modes of effecting service? Rule 9: by delivery

through proper officer, courier service, RPAD, speed post, fax message,
email service, etc., as approved by rules made by the High Court.

• What procedure would be adopted for service of summons where the

Defendant resides outside the jurisdiction of the court? Rule 9(4),
Rules 21,22,23 and section 28.

• When might a letter be substituted for a summons? Rule 30.

• Special instances: Rule 24 (service on Defendant in prison); Rule 27 (civil

public officer); Rule 28(soldiers, sailors or airmen); Rule 29.

• Deeming provisions under the Order: Rule 9(5).

BASIC READING
• Sections 27 to 32; Order 5.

ADDITIONAL READING
• Takwani, Part 2, Chapter 7 (4)

WEEK 6

Sessions 16 and 17 – (4 hours)

Module 7: PLEADINGS

• The Cardinal Rules emanating from Order 6 Rule 2

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• Order VI relates to Pleadings generally; Order VII relates to Plaint and
Order VIII relates to Written Statement.
• What is “Pleading”? Order 6 Rule 1: “Pleading shall mean Plaint or Written
Statement”. Is a rejoinder/reply included? Why not?
• The cardinal principles of pleadings: Order 6 Rule 2: Pleadings to state
material facts and not evidence; Pleadings should contain all material facts;
Pleadings should not contain law; nor should it contain argumentation.
Further, pleadings should contain only material facts, not all facts.
• Why would it be unwise to include argumentation in pleadings? Explain
the phrase: “pleadings do not argue- lawyers do!”
• What would be the effect of the failure to include all material facts in
the Plaint?
(1)No cause of action would be seen to arise at all. Material facts are all
facts upon which the Plaintiff’s cause of action or the defendant’s
defense depends. The question whether a particular fact is material or
not depends upon the facts and circumstances of each case.
(2) Further, the party in question would be guilty of suppression of
material facts, an aspect he would have to answer later in the course of
the trial when his suppression comes to light.
(3)Also, no amount of evidence can be looked into upon a plea which was
never raised.
• What is the effect of a false statement in the pleading? The pleadings
which are verified by the party and are further supported by affidavit, if
found to be false to the knowledge of the party concerned, would expose the
party to the risk of the charge of perjury.
• Pleadings not to contain the evidence by which the pleadings are to be
proved. Classic case of Barrodaile vs Hunter (1845) 5 Man and Gr 639.
• What is the exception carved out by the Supreme Court to the rule in Order
6 Rule 2? Even though evidence must be based on pleadings and the
judgment must be based on the pleadings set out- where from a perusal of
the circumstances of the case it is apparent that the parties knew the case
they had to meet, and actually led evidence thereon, then the objection that
a particular fact was not pleaded will not be successful. Thus, a pedantic
approach will not be adopted. Ram Sarup Gupta vs Bishun Narain Inter
College (1987) 2 SCC 555; Bhagwati Prasad vs Chandramaul AIR 1966
SC 735. (additional readings)
• Note the special rules contained in Order 6 Rules 6 to 13 which could be
said to be extensions/illustrations or exceptions to the general rule
contained in Order 6 Rule 2.

• What is the level of specificity necessary in pleadings?The pleadings

should be specific enough to give the opposite party adequate notice of the
case that she must meet. Order 6 Rule 2 read with Order 6 Rule 4: in all
cases in which the party pleading relies upon misrepresentation, fraud,
breach of trust, willful default or undue influence, particulars shall be
stated in the pleadings. “Particulars are details in support of material facts
pleaded by the party. They amplify, refine and embellish material facts by
giving distinctive touch to the basic contours of a picture already drawn so
as to make it full, more clear and more informative.” Virender Nath Gautam
vs Satpal Singh [2007 (3) SCC 617].

• Can pleadings contain inconsistent pleas? Order 6 Rule 7. Inconsistent

pleas are permissible :G. Nagamma vs Siromanamma [(1996) 2 SCC 25];

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 Srinivas Ram Kumar vs Mahabir Prasad [(AIR 1951 SC 177)] and Praful
Manohar Rele vs KN Ghosalkar [(2014) 11 SCC 316]. Per contra : Steel
Authority of India Limited vs Union of India [(2006) 12 SCC 233]; Sarva
Shramik Sangh vs IOC [(2009) 11 SCC 609]. What is the difference
between having inconsistent pleas and raising alternative reliefs ? (Order 6
Rule 7 and Order 7 Rule 7). (additional readings)

• What are the principles applicable to amendment of pleadings?Order 6

Rule 17.

• By virtue of the proviso to Order 6 Rule 17 applications for amendment after

trial has commenced have to establish due diligence.
• It is the discretion of the court to be exercised judiciously.
• The general principle is that all amendments should be allowed except those
which cause injury that cannot be compensated with costs.
• Prejudice caused to the opposite side is the important factor- whether the
prejudice can be compensated through costs.
• Amendments which are necessary to determine the real questions in
controversy between the parties should be allowed.
• M/s Ganesh Trading Co vs Moji Ram [(1978)2 SCC 91] –amendment
application whether amounted to altering the cause of action and changing
the very identity of the Plaintiff. (additional reading)
• BK Narayana Pillai vs Parameswaran Pillai [2000(1) SCC 712]- liberal
approach to amendments especially when opposite side can be suitably
compensated through costs, advocated. Inconsistent and contradictory
allegations or mutually destructive allegations of facts should not be allowed
by way of amendments. (additional reading)
• Pirgonda Hongonda Patil vs Kalgonda Shidgonda Patil [AIR 1957 SC
363] – where Plaintiff seeks to amend the Plaint by setting up a fresh claim
in respect of a cause of action which since the institution of the suit had
become barred by limitation, the amendment must be refused. To allow it
would be to cause the Defendant an injury which could not be compensated
in costs. (additional reading)

• What are the formalities to be complied with pleadings? Order 6 Rule

14- Pleading to be signed by the party and the pleader. Order 6 Rule 14A-
Address for service of notice shall be furnished by each party. Order 6 Rule
15- Pleading shall be verified and shall also be supported by affidavit.

• Can the court interfere with the pleadings? Order 6 Rule 16- power to
order striking out or amendment of pleadings that are unnecessary,
scandalous, which prejudice or embarrass the fair trial or which abuse the
process of court.

• What are the particulars to be contained in the Plaint? Order VII Rules
1 to 8. Under Order 7 Rule 2, in money suits, where the Plaintiff seeks
recovery of money the Plaint shall precisely state the amount claimed except
if mesne profits, etc., are sought, in which case the Plaint shall state the
approximate value. Under Order 7 Rule 3, where the subject-matter of the
suit is immovable property, the Plaint shall contain a description of the
property sufficient to identify it. Relief shall be specifically stated (Order 7
Rule 7).

• Return and Rejection of Plaint

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 • Return of Plaint – Order 7 Rules 10, 10A, 10B.
• To be adopted where the court finds it does not have the jurisdiction to
entertain the dispute; even an appellate or revisional court may exercise the
power.
• The judge returning the Plaint should make endorsements on it regarding
the date of presentation, the date of return, the name of the party presenting
it and the reasons for returning it.
• The order returning the Plaint is appealable under Order 43 Rule 1(a) except
where the procedure under Rule 10A has been followed fixing a date for
appearance in the Court where Plaint is to be filed after its return.
• There is no continuation of the initial suit filed and the suit must be
deemed to have been filed on the date of re-presentation after return
of the Plaint. However, the Plaintiff may be able to take advantage of section
14 of the Limitation Act, 1908, and may also seek adjustment of court fees.
ONGC Limited vs Modern Construction Company [2014(1) SCC 648].
Harshad Chimanlal Modi vs DLF Universal Ltd [2006(1) SCC 364].
(additional reading)

• Rejection of Plaint: Order 6 Rules 11,12,13

• The Plaint shall be rejected where any of the grounds mentioned in clauses
(a) to (f) of Order 6 Rule 11 are satisfied.
• The judge upon rejecting the Plaint is required to pass an order with reasons
(Rule 12).
• An order rejecting the Plaint is deemed a “decree” as per section 2(2) and
is thus appealable under section 96.
• A fresh suit is also not barred after rejection of Plaint. (Rule 13).
• P.V. Gururaj Reddy vs P. Neeradha Reddy [2015 (8) SCC 331]- Rejection
of Plaint is a drastic power to be exercised to terminate a civil action at the
threshold. At the stage of rejection of Plaint, averments in written statement,
etc., are all immaterial. It is only the averments in the Plaint that are
relevant to determine whether the Plaint should be rejected on the ground
of not disclosing a cause of action or suit being barred by any law.
• Balasaria Construction (P) Ltd vs Hanuman Seva Trust [2006 (5) SCC
658]- Plaint can be rejected under Order 7 Rule 11 (d) as being barred by
limitation only if it is ex facie barred from a reading of the Plaint. If limitation
is a mixed question of law and fact in a given case, Order 7 Rule 11 cannot
be invoked.
• M/s Commercial Aviation and Travel Co vs Vimla Pannalal [1998 (3)
SCC 423]- only if positive objective standards are available to determine the
correct valuation, rejection can be done under Order 7 Rule 11(b).
(additional readings – all the three cases above)

BASIC READING
• Orders 6,7 and 8.
• Barrodaile vs Hunter (1845) 5 Man and Gr 639.
• Virender Nath Gautam vs Satpal Singh [2007 (3) SCC 617].

ADDITIONAL READING
• Takwani, Part 2, Chapters 6 and 7.
• G. Nagamma vs Siromanamma [(1996) 2 SCC 25]; Srinivas Ram Kumar vs
Mahabir Prasad [(AIR 1951 SC 177)] and Praful Manohar Rele vs KN

Page 34 of 90
 Ghosalkar [(2014) 11 SCC 316]. Per contra : Steel Authority of India Limited
vs Union of India [(2006) 12 SCC 233]; Sarva Shramik Sangh vs IOC [(2009)
11 SCC 609]
• M/s Ganesh Trading Co vs Moji Ram [(1978)2 SCC 91]
• BK Narayana Pillai vs Parameswaran Pillai [2000(1) SCC 712]
• Pirgonda Hongonda Patil vs Kalgonda Shidgonda Patil [AIR 1957 SC 363]
• ONGC Limited vs Modern Construction Company [2014(1) SCC 648]. Harshad
Chimanlal Modi vs DLF Universal Ltd [2006(1) SCC 364].
• P.V. Gururaj Reddy vs P. Neeradha Reddy [2015 (8) SCC 331]
• Balasaria Construction (P) Ltd vs Hanuman Seva Trust [2006 (5) SCC 658]
• M/s Commercial Aviation and Travel Co vs Vimla Pannalal [1998 (3) SCC
423]-
• Ram Sarup Gupta vs Bishun Narain Inter College (1987) 2 SCC 555; Bhagwati
Prasad vs Chandramaul AIR 1966 SC 735.

WEEK 6

Session 18– (2 hours)

Module 7: PLEADINGS (continued)

• Filing of written statement within time-limits: Order 8 Rule 1

Within 30 days from the date of service of summons on the Defendant,
the Defendant shall present a written statement of his defense;
extendable upto 90 days from the date of service of summons. In Kailash
vs Nankhu [2005(4) SCC 480] held however that Order 8 Rule 1 is not
mandatory but directory. In exceptional cases, court could permit filing
even after lapse of 90 days.

• What is the effect of not filing a written statement when required or as

fixed by the court?
• Order 8 Rule 5(2), Rule 9, Rule 10: the court is empowered to pass
judgment against the Defendant on the basis of the facts contained in the
Plaint or make such other order as it thinks fit except as against a person
under a disability. But the court may, in its discretion, require any of the
facts to be proved by the Plaintiff.
• Balraj Taneja vs Sunil Madan [1999(8)SCC 396]- court not to act blindly
in decreeing the suit merely because written statement not filed. Should still
see whether the Plaintiff has a good case. Section 58 Indian Evidence Act
analogous. (additional reading)

• New facts must be specially pleaded in written statement – Order 8

Rule 2: which show that the suit is not maintainable, or that the transaction
is either void or voidable in point of law, and all such grounds of defence
which if not raised, would be likely to take the opposite party by surprise or
would raise issues of fact not arising out of the Plaint, etc. Shri Udhav Singh
vs Madhav Rao Scindia [1977(1)SCC511]: a pure question of law need not
be pleaded in the written statement. (additional reading)

• Denials in written statement

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• The Defendant should not deny generally the grounds alleged by the
Plaintiff, but must deal specifically with each allegation of fact that he does
not admit. Order 8 Rule 3.
• However, this principle does not apply to damages, which are always
deemed to be denied by a line of English cases- Millington vs Loring (1880)
6 QBD 190; Wood vs Durham (1888) 21 QBD 501. (additional reading)
• Evasive denials are improper.Order 8 Rule 4. Classic case of Tildesley vs
Harper [1878 (10) CD 393].
• Every allegation of fact in the Plaint if not denied specifically or by necessary
implication, or stated to benot admitted shall be taken to be admitted except
as against a person under disability. However, the Court can nonetheless
require any fact so admitted to be proved otherwise than by such admission.
Order 8 Rule 5.
• Badat and Co vs East India Trading Co [ AIR 1964 SC 538]: Order 8 Rules
3, 4 and 5 form an integrated code dealing with the manner in which
allegations of fact in the Plaint should be traversed and the legal
consequences flowing from non-compliance. (additional reading)

• Documents to be produced along with the pleadings

• Order 7 Rule 14 and Order 8 Rule 1A: documents relied upon or upon
which sued, which are in the possession or power of the party shall be
entered in a list and shall be produced in court along with the Plaint and
Written Statement along with a copy. If this rule is not complied with, such
documents cannot be received in evidence at the trial, except if court’s leave
is taken. However, this rule does not apply to a document produced merely
to cross-examine the opposite party’s witnesses or to refresh the memory of
one’s own witnesses. (Note special rules with regard to lost negotiable
instruments and shop-books- Order 7 Rules 16 and 17).
• Do the documents produced along with the Plaint and Written Statement
become a part of the record of the case?

• LEGAL SET-OFF
• Order 8 Rule 6
• Requirements to claim Legal Set-Off: (a) In a suit for recovery of money (b)
an ascertained sum legally recoverable from the Plaintiff (c) not exceeding
the pecuniary limits of the court’s jurisdiction (d) where both parties fill
the same character as in the suit and (e) where the defendant presents the
written statement with set off at the first hearing of the suit or afterwards
(with leave of the court).
• Special provision with regard to Limitation- section 3 of the Limitation Act,
1908-claim by way of set-off deemed to be instituted on the same date as
the suit in which the set off is pleaded.
• Court Fees for set-off: a written statement pleading a set-off is chargeable
in the same manner as a Plaint.

• EQUITABLE SET-OFF
• Even though not found in the Code, recognized by judicial decisions.
• Union of India vsKaram Chand Thapar and Bros [2004(3) SCC 504]-
equitable set-off can only be claimed if it arises from the same transaction
as the main claim of the Plaintiff; further, it cannot be claimed as a matter
of right and is discretionary. (additional reading)

Page 36 of 90
 • Jitendra Kumar Khan vs Peerless General Finance and Investment
Company Limited [ 2013 (8) SCC 769] –equitable set-off is based on the
fundamental principles of equity, justice and good conscience; it must arise
from the same transaction or ought to be so connected to the claim as to
make it inequitable for the court to allow the claim before it and drive the
Defendant to file a cross-suit. (additional reading)

• COUNTER-CLAIM
• Order 8 Rule 6A to 6G.
• Permissible only after 1976 amendment.
• Requirements: any cause of action arising before or after the filing of the
suit but before the Defendant has delivered his defence or before the time
limited for delivering the defence has expired; should not exceed pecuniary
limits of court’s jurisdiction.
• Ramesh Chand Ardwatiyavs Anil Panjwani [2003(7) SCC350]-the right to
prefer a counter-claim runs with the right of filing a written statement. Once
that right is lost, then counter-claim cannot be permitted to be raised.
(additional reading)
• Chargeable with court fees in the same manner as a Plaint (section 8 of the
KCFSV Act).
• Limitation- deemed to be instituted on the day when counter-claim filed in
court.

BASIC READING
• Orders 6,7 and 8.
• Kailash vs Nankhu [2005(4) SCC 480]
• Tildesley vs Harper [1878 (10) CD 393].

ADDITIONAL READING
• Takwani, Part 2, Chapters 6 and 7.
• Balraj Taneja vs Sunil Madan [1999(8)SCC 396
• Shri Udhav Singh vs Madhav Rao Scindia [1977(1)SCC511]
• Millington vs Loring (1880) 6 QBD 190; Wood vs Durham (1888) 21 QBD 501.
• Badat and Co vs East India Trading Co [ AIR 1964 SC 538]
• Union of India vsKaram Chand Thapar and Bros [2004(3) SCC 504]
• Jitendra Kumar Khan vs Peerless General Finance and Investment Company
Limited [ 2013 (8) SCC 769]
• Ramesh Chand Ardwatiyavs Anil Panjwani [2003(7) SCC350]

WEEK 7

Sessions 19 and 20 – (4 hours)

Module 8: APPEARANCE OF PARTIES

AND CONSEQUENCES OF NON-APPEARANCE

• Note at the outset that the relevant rules are contained in Order 9 and
Order 17 Rules 1 to 3.In Order 9 Rule 1 a distinction is made between
hearing on the day fixed in the summons for defendant to appear and
answer and an adjourned hearing. The provisions of Order 9 relate to the

Page 37 of 90
 day fixed in the summons – however, by virtue of Order 17, Rule 2, the court
may dispose of the suit in one of the modes directed in Order 9 and therefore
the provisions of Order 9 become applicable to the hearing on the day fixed
in the summons and to the adjourned hearings. (Note however the phrase
“or make such other order as it deems fit” in Order 17 Rule 2.)

• Provisions relating to defaults by the Plaintiff :

• Order 9 Rule 2: Failure to pay court-fee or postal charges for summons

or present copies of the plaint-court may dismiss the suit. Remedy: Order
9 rule 4 –fresh suit or application to set aside dismissal.
• Order 9 Rule 5: Failure to apply within 7 days from the date of return
of summons for a fresh summons- court shall make an order of dismissal
unless satisfied that failure due to sufficient cause, etc. Remedy: Order 9
Rule 5: Fresh suit.
• Order 9 Rule 3: Failure to appear (and Defendant also does not appear)-
Court may make an order that the suit be dismissed. Remedy: Order 9 Rule
4- fresh suit or application to set aside order of dismissal.
• Order 9 Rule 8: Failure to appear (but Defendant appears)- the Court shall
make an order that the suit be dismissed unless Defendant admits the claim
or part thereof. Remedy: Order 9 Rule 9 – fresh suit precluded but can apply
to have dismissal set aside.

• Provisions relating to defaults by the Defendant

• Order 9 Rule 6: Defendant fails to appear even though Plaintiff appears

– the Court may make an order that the suit be heard ex parte. Remedy:
Order 9 Rule 7: application to set aside ex parte proceedings (can be filed
only until suit posted for judgment).
• Order 9 Rule 13: Ex parte decree passed against the Defendant.
Remedies: Order 9 Rule 13 application to set it aside, appeal against the ex
parte decree under section 96; review petition if possible and fresh suit to
set aside ex parte decree on the ground of fraud.

• Where there are multiple Plaintiffs and Defendants and only some
appear- Order 9 Rule 10 (only some Plaintiffs appear)- suit may proceed or
court may pass such order as deemed fit. Order 9 Rule 11 (only some
Defendants appear)- the suit shall proceed and the Court shall at the time
of pronouncing judgment make such order as it thinks fit with regard to the
Defendants who do not appear.

• Consequences of non-appearance by party ordered to appear in

person.Order 9 Rule 12.

• Where parties fail to produce evidence, cause the attendance of the

witnesses or perform other acts necessary for the further progress of
the suit- Order 17 Rule 3.

• Sangram Singh vs Election Tribunal Kotah [AIR 1955 SC 425]: Defendant who
is placed ex parte has right to take part in the proceedings from the stage at
which he appears; but no right to “turn back the clock” which is the
discretion of the court.

Page 38 of 90
 • Bhanu Kumar Jain vsArchana Kumar [2005(1) SCC 787]-the remedies
available to a Defendant against an ex parte decree discussed. Once appeal
against ex parte decree disposed, no application lies under Order 9 Rule 13.
Conversely, once application under Order 9 Rule 13 rejected and appeal
against the order of rejection under Order 43 Rule 1 dismissed, cannot raise
the issue in the appeal. The appeal can only be agitated on the merits of the
case. (additional reading)

BASIC READING
• Order 9 and Order 17 Rules 1 to 3.
• Sangram Singh vs Election Tribunal Kotah [AIR 1955 SC 425]

ADDITIONAL READING
• Takwani, Part 2, Chapter 8
• Bhanu Kumar Jain vs Archana Kumar [2005(1) SCC 787]

Module 9: FIRST HEARING OF THE SUIT

• What is the ‘first hearing” of a suit? Arjun Khiamal Makhijani vs.

Jamnadas Tuliani (AIR 1989 SC 1599) – the day on which the court
applies its judicial mind to the case either for framing issues or for taking
evidence, is the first hearing of the suit and the first hearing cannot be
before that date. Shyamlal vs. AtmenandJain Sabha, Dal Bazaar – 1987
(1) SCC 222 – the day on which the Court applies its mind to the case is
the first hearing of the suit and not before that. (additional readings)

• What happens on the first hearing? Examination of parties by the court

(Order X), Framing of Issues (Order XIV), reference to ADR (Section 89
read with Order X Rules 1A to 1C) and even possibly Final Disposal (XV).

• What is the object and purpose of the provisions under Order X CPC– is it
for the purpose of gathering evidence?

T. Aravindanam vs. T.V. Satyapal (1977 (4) SCC 467) – frivolous suits
should be nipped in the bud on the first hearing by examining the parties
under Order X CPC. (additional reading)

Manmohandas Alias Bachaji vs. Ramdei Musammat (Oudh Weekly

Notes– Volume VIII Page 936- Privy Council deprecated the practice of the
trial judge in first recording the evidence of the Defendant witness by calling
him and putting questions to him on the whole case,as contrary to the object
of Order X. (additional reading)

K.S. Satyanarayana vs. V.R. Narayana Rao (1999 (6) SCC 104) – where
the defendant denied his signature on theVakalath itself, the trial court
could have investigated the matter under Order X and prevented a
protracted trial. (additional reading)

Kapil Core Packs Pvt. Ltd. Vs. Harbanslal (2010 (8) SCC 452) - the power
under Order X is only for the purpose of clarifying the stand of the parties

Page 39 of 90
 in regard to the allegations made; it cannot be converted to a process of
cross-examination by the court.

• Issues – Order 14 CPC. What are issues? When do they arise?Order XIV
Rule 1.

• Is the court bound to pronounce judgment on all issues?Order 14 Rule 2.

• What are the materials fromwhich issues may be framed?Order 14 Rule 3.

• Can the Court amend or strike out issues at a laterstage?Order XIV Rule
5.

• When can the court dispose of a suit on a preliminary issue?Order XIV Rule
2.

• Can the parties agree to put forward questions of fact orlaw as issues to
bedecided by the court? Order 14 Rules 6 & 7.

• What is the effect of non-framing of a material issue - is it fatal to the suit

and is a re-trial mandatory?

Biswanatha Agarwala vs. Sabitri Bera (2009 (15) SCC 693) – Supreme
Court remanded the matterfor fresh framing of fresh issue and trying the
same on the ground appellant was prejudiced. (additional reading)

Montford Brothers of St. Gabriel vs. United India Insurance (2014 (3)
SCC 394)Where crucial issue was not raised the party was penalized for the
same. (additional reading)

Mahendra Manilal Nanavati vs Sushila Mahendra Nanavati AIR 1965SC

364 – Order 41 Rules 23, 25 invoked.(additional reading)

• When can the court dispose of the suit at the first hearing? Order 15.

BASIC READING
• Order X, Order XIV, reference to ADR -Section 89 read with Order X
Rules 1A to 1C; Order XV.
• Kapil Core Packs Pvt. Ltd. Vs. Harbanslal (2010 (8) SCC 452)

ADDITIONAL READING
• Takwani, Part 2, Chapter 9
• Arjun Khiamal Makhijani vs. Jamnadas Tuliani (AIR 1989 SC 1599)
• Shyamlal vs. AtmenandJain Sabha, Dal Bazaar – 1987 (1) SCC 222
• T. Aravindanam vs. T.V. Satyapal (1977 (4) SCC 467)
• Manmohandas Alias Bachaji vs. Ramdei Musammat (Oudh Weekly Notes–
Volume VIII Page 936
• K.S. Satyanarayana vs. V.R. Narayana Rao (1999 (6) SCC 104)
• Biswanatha Agarwala vs. Sabitri Bera (2009 (15) SCC 693)
• Montford Brothers of St. Gabriel vs. United India Insurance (2014 (3) SCC 394)

Page 40 of 90
 • Mahendra Manilal Nanavati vs Sushila Mahendra Nanavati AIR 1965SC 364

WEEK 7

Session 21– (2 hours)

Module 9 : DISCOVERY

• Sections 30 to 32, Order 11.

• What is the rationale for discovery in an adversarial proceeding?

Why is it only available against the party opponent and not third
parties? Why is it not available with regard to the facts that
constitute exclusively the case of the opponent?

• What are the three modes of discovery recognized by the Code?

By interrogatories, by affidavit of documents, and by inspection.

• What is the procedure for delivering interrogatories to the party?

Order 11 Rules 1 to 11– leave of the court necessary and they
must relate to matters in question in the suit; court will decide
within 7 days from the date of application; objections may be
taken in affidavit in answer or application can be made for
striking off under Rule 7; affidavit in answer shall be filed within
10 days; the court can issue direction to answer further.

Raj Narain vs Indira Nehru Gandhi (1972) 3 SCC 850- relationship

between pleadings, issues and interrogatories seen; questions permissible
during cross-examination not necessarily “related to any matters in
question in the suit” under Order 11 Rule 1. (additional reading)

Nishi Prem vs Javed Akhtar 1987 SCC Online Bom 296: discovery does
not enable the party to know the facts which constitute exclusively the
evidence of the opposite side; or to discover who the witnesses for the other
side might be; “newspaper rule” in England followed.

• What is the procedure to obtain discovery of documents? Order

11 rules 12 to 13. Application to court for order – Affidavit in
answer in Form No. 5 Appendix C.

ML Sethi vs RP Kapur (1972) 2 SCC 427: Order 11 can be used in forma

pauperis proceedings; application for discovery need not specify the
documents sought to be discovered. (additional reading)

• What is the procedure for inspection of documents ? Order 11

Rules 15 to 19. What is the difference between Rule 15 and 18?

• What is the effect of failure to comply with an order for discovery?

Rule 21. M/s Babbar Sewing Machine Co vs Trilok Nath
Mahajan (1978) 4 SCC 188: unless there is a clear failure to
comply with the Rule, Order 11, Rule 21 should not be lightly
invoked. (additional reading)

Page 41 of 90
 • Rajesh Bhatia vs G. Parimala 2006 (3) ALD 415, M.
SivasamyvsVestergaardFrandsen. (additional reading)

Module 9 : ADMISSIONS

• Sections 30 to 32 CPC and Order XII CPC.

• What are the two types of admissions according to Wigmore?

• What is the procedure for issuing notice to admit documents?

Order XII Rules 2 to 3A.

• What is the procedure to issue notice to admit facts? Order XII

Rules 4 to 5.

• What is the procedure to prove an admission – is the affidavit of

the pleader or his clerk sufficient? Order XII Rule 7.

BASIC READING
• Sections 30 to 32, Order 11. Sections 30 to 32 CPC and Order
XII CPC (admissions)
• Nishi Prem vs Javed Akhtar 1987 SCCOnlineBom 296
• Wigmore $ 1845 to $ 1863.

ADDITIONAL READING
• Takwani Pages: 293 to 311.
• Raj Narainvs Indira Nehru Gandhi (1972) 3 SCC 850
• ML Sethi vs RP Kapur (1972) 2 SCC 427
• M/s Babbar Sewing Machine Co vs Trilok Nath Mahajan (1978) 4
SCC 188
• Rajesh Bhatia vs G. Parimala 2006 (3) ALD 415, M. Sivasamy
vs VestergaardFrandsen.

WEEK 8

Sessions 22 and 23– (4 hours)

Module 10: PRODUCTION IMPOUNDING AND RETURN OF DOCUMENTS

• Sections 30 to 32, Order 13.

• Original documents to be produced at or before settlement of

issues – Order 13 Rule 1. What are the exceptions to the same?

• Is delay in producing originals fatal? BillaJagan Mohan Reddy

vsBillaSanjeeva Reddy (1994) 4 SCC 659- (additional reading)

Page 42 of 90
 the requirement to explain the delay under Rule 1 Order 13 is
not as rigorous as that under section 5 of the Limitation Act; in
this case documents were allowed to be produced at the stage of
arguments but opportunity to rebut given to the other side. Is the
approach of the Supreme Court in the said case defensible?

• What is the procedure for the marking or admission of

documents? Order 13 Rules 3 to 7. What are the matters to be
endorsed on every document admitted in evidence? Rule 4.

• What is the effect of failure to endorse a document as required

under Rule 4? SadikHussain Khan vsHashim Ali Khan AIR
1916 PC 27-the document will not be read as evidence.
(additional reading)

• When should objections be raised as to the marking of

documents? HemendraRasiklalGhiavsSubodhMody 2008 (6)
Mh LJ 886 (Full Bench) - Objections against documents can be
of three types- (i) insufficient stamping (ii) inadmissibility and (iii)
proof of the document. Merely because a document is marked,
objections as to admissibility not precluded even at later stages.
However, failure to object as to proof of a document amounts to
waiver of the necessity of formal proof of a document and cannot
be raised later. Objections as to insufficient stamping have to be
decided then and there before proceeding further. However, note
SaitTarajeeKhimchandvsYelamarti Satyam alias Satteyya
(1972) 4 SCC 562 – mere marking of a document does not
dispense with proof of the document. (additional readings)

• Under what circumstances might the court order the impounding

of documents? Order 13 Rule 8. Insufficient stamping could be
a ground.

• When can a party seek return of documents produced by him in

the suit? Order 13 Rule 9.

• If a document is in the custody of another court, how to get the

same? Apply under Order 13 Rule 10.

• Provisions as to documents also apply to material objects. Order

13 Rule 11.

• When can an adverse inference be drawn from non-production of

a document? Hiralal vs Badkulal AIR 1953 SC 225- not
necessary that a direction to produce has been issued. (additional
reading)

BASIC READING
• Sections 30 to 32, Order 13.

ADDITIONAL READING
• Takwani Pages: 312 to 314.
• BillaJagan Mohan Reddy vs BillaSanjeeva Reddy (1994) 4 SCC
659

Page 43 of 90
 • SadikHussain Khan vs Hashim Ali Khan AIR 1916 PC 27
• HemendraRasiklalGhia vs SubodhMody 2008 (6) Mh LJ 886 (Full
Bench)
• SaitTarajeeKhimchand vs Yelamarti Satyam alias Satteyya (1972)
4 SCC 562
• Hiralal vs Badkulal AIR 1953 SC 225

Module 10: SUMMONING AND ATTENDANCE OF WITNESSES

• Sections 30 to 32, Order 16.

• What is the procedure for ensuring that witnesses to be called are

present in court on the date of trial? If the witness willingly would
come and depose, it would appear that nothing needs to be done
except ensuring the presence of the witness on the date of trial
(Rule 1A Order XVI). However, if the witness is recalcitrant, then
you should include her name in the List of Witnesses furnished
to the court under Order 16 Rule 1 within 15 days from the date
issues are settled.

Mange Ram vs Brij Mohan (1983) 4 SCC 36: rules 1 and 1A operate in
separate fields – only if court assistance is required, the name should be
included in the list; failure to include the name of a witness who has come
to court to depose without summons is not fatal. (additional reading)

Lalitha J. Rai vs Aithappa Rai (1995) 4 SCC 244: delayed production of

list of witnesses condoned since trial was yet to commence. (additional
reading)

• Who should pay for the witnesses summoned and what is the
procedure thereof? Rules 2 to 4 of Order 16.

• Witness can be summoned to give evidence or produce document

in his custody. Rule 6 Order 16.

• Can a person present in court be required then and there to give

evidence or produce a document in his possession? Yes, Order
16 Rule 7.

• What is the procedure for serving a witness? Similar to the

procedure for serving a party. Order 16 Rules 7A to 9.

• What are the consequences if a witness fails to comply with a

summons? Section 30 read with Rules 10 to 13, Rule 15 to
19. Proclamation, warrant for arrest, attachment of property,
fine, etc. Note the difference in the manner in which a witness is
treated as compared to a party who fails to attend. Whilst a party
who fails to attend court is placed ex parteand no penal
consequences ensue, a witness is supposed to assist the court in
the interest of justice and has a duty to perform.

Page 44 of 90
 • What are the consequences of refusal of a party to give evidence
when called on by the court? Order 16 Rule 20.

• Can the court of its own accord summon as witnesses strangers

to the suit? Yes – Order 16 Rule 14.

Municipal Corporation of Ludhiana vs Balinder Bachan Singh 2004 (5)

SCC 182- SC at appellate stage exercising powers under Order 16 Rule 14.
(additional reading)

Seshadri vs Vasantha Pai AIR 1969 SC 692- suo motu calling of witnesses
in an Election Petition.

• Can the party opponent be summoned as a witness? Yes- Order

16 Rule 14 read with Rule 21.

• What is the procedure for the attendance of witnesses confined

in prisons? Order16A.

BASIC READING
• Sections 30 to 32, Order 16.
• Seshadri vs Vasantha Pai AIR 1969 SC 692

ADDITIONAL READING
• Takwani Pages: 391 to 395.
• Mange Ram vs Brij Mohan (1983) 4 SCC 36
• Lalitha J. Rai vs Aithappa Rai (1995) 4 SCC 244
• Municipal Corporation of Ludhiana vs Balinder Bachan Singh
2004 (5) SCC 182

WEEK 8

Session 24– (2 hours)

Module 10: HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

What is the relationship between the Burden of Proof under sections 101 to
106 of the Indian Evidence Act, 1872, and the right to begin under Order
XVIII of the Code?What are the two senses in which the phrase “burden of proof”
is used according to Wigmore?

Who has the right to begin under Order 18 Rule 1 CPC? Where there are
multiple issues, some of which are to be proved by the Plaintiff and some by
the Defendant, what is the sequence to be followed in the trial for the leading
of evidence? Order 18 Rules 1 to 3.

Manjit Singh Lassi vs Col. Gurcharan Singh 2004 SCC Online P&H 994
(SJ)- where Defendant admits the facts stated in the Plaint but sets up
additional facts the Defendant would have the right to start.

Page 45 of 90
B.H. Ravindra Pai vs Smt K. Sulochana Bhandarkar 1981 ILR (KAR) 708
(SJ)- Plaintiff has the right to begin evidence but can reserve the right to
lead rebuttal evidence on issues that the Defendant has to prove. (additional
reading)

• What is the procedure for addressing oral arguments and

submitting written arguments? Order 18 Rule 3.

• Why should a party appear before the other witnesses to be

called on his behalf? Order 18 Rule 3A.

• What was the procedure for recording the chief examination

of a witness before the 1999/2002 amendments? How would
a document be marked in court? What is the procedure and the
practice now after the amendments? Order 18 Rules 4 and 19.
What is the procedure regarding the proof and admissibility of
documents filed along with the affidavit? Do you think that the
1999/2002 amendments have helped or not?

• What is the manner of taking down evidence in court in

appealable and unappealable cases? Order 18 Rules 5 to 9, 13.

• When might the court take down not only the answer but
even the question asked?Order 18 Rule 10.

• What is the procedure to be followed whenever a question put

to a witness is objected to by the opposite side?Order 18 Rule
11.

• If one judge has recorded evidence but gets transferred

before the conclusion of the trial, can the new judge proceed
from stage where his predecessor stopped?Order 18 Rule 15.

• When can a witness be examined immediately in disruption

of the normal sequence of trial ?Order 18 Rule 16.

• When can a witness be recalled and examined once

again?Order 18 Rule 17.Is this a power of the court or is it a right
of the party? Altaf Hussain vs Nasreen Zahra AIR 1978 All 515
– power not to be used for filling up lacuna in the evidence – only
in exceptional cases, for removing ambiguities and clarifying
statements the court may use the power. Steelage Industries
Ltd vs Smt Chander Bagai AIR 1992 Bom 406. (additional
readings)

• Can the court inspect any property or thing and use the
memorandum of facts recorded as evidence?Order 18 Rule 18.

• Ugam Singh vs Kesari Mal AIR 1971 SC 2540. (additional)

• Kesssowji Issur vs The Great Indian Peninsula Railway Co 11
CWN 721 (PC).
• Hurparshad vs Sheo Dayal 3 IA 259.(additional)

Page 46 of 90
 • Buckingham vs Daily News Ltd 1956 (2) QB 534. (additional)

BASIC READING
• Order 18,sections 101 to 106 of the Indian Evidence Act, 1872.
• Manjit Singh Lassi vs Col. Gurcharan Singh 2004 SCC Online
P&H 994 (SJ)
• Kesssowji Issur vs The Great Indian Peninsula Railway Co 11
CWN 721 (PC).

FURTHER READING
• Takwani Pages: 399 to 403.
• B.H. Ravindra Pai vs Smt K. Sulochana Bhandarkar 1981 ILR
(KAR) 708 (SJ)
• Altaf Hussain vs Nasreen Zahra AIR 1978 All 515
• Steelage Industries Ltd vs Smt Chander Bagai AIR 1992 Bom
406.
• Ugam Singh vs Kesari Mal AIR 1971 SC 2540.
• Hurparshad vs Sheo Dayal 3 IA 259.
• Buckingham vs Daily News Ltd 1956 (2) QB 534.

Module 10: AFFIDAVITS

• What is an affidavit? A sworn statement in writing made

especially under oath; a declaration of facts made in writing and
sworn before a person having authority to administer oath. It
should be drawn up in the first person.

• When can affidavits be used as evidence? Section 1 of the

Indian Evidence Act, 1872 makes the Act inapplicable to
affidavits. However, Section 30 read with Order XIX of the code
provide for evidence to be given by affidavits if (a) the court has
ordered any fact to be proved by affidavit (Order 19 Rule 1) or (b)
upon any application filed (Order 19 Rule 2).

SmtSudha Devi vs M. P. Narayanan (1988) 3 SCC 366: affidavits not

included in the definition of evidence in the Indian Evidence Act, 1872,
and can only be used as evidence if the court passes an order under
Order 19 Rules 1 and 2. Yohannan Samuel vs Mathew John (1991) 1
KLJ 605. (additional readings)

• What are the matters to which an affidavit should be

confined? Order 19 Rule 3.

PadmabatiDasivsRasikLalDhar ILR 1909 Vol 37 pg 259: the

provisions of Order 19 Rule 3 must be strictly observed.

State of Bombay vsPurushottam Jog Naik (CB) AIR 1952 SC 317:

Order 19 rule 3 would need to be complied even in case of affidavits filed
in writ proceedings. (additional readings)

Page 47 of 90
 • What is the effect of swearing to a false affidavit? Offence of
perjury under section 191 IPC.

BASIC READING
• Section 1 of the Indian Evidence Act, 1872, Section 30 , Order
XIX of the code.

ADDITIONAL READING
• Takwani Pages: 315 to 317.
• SmtSudha Devi vs M. P. Narayanan (1988) 3 SCC 366
• Yohannan Samuel vs Mathew John (1991) 1 KLJ 605.
• PadmabatiDasivsRasikLalDhar ILR 1909 Vol 37 pg 259
• State of Bombay vsPurushottam Jog Naik (CB) AIR 1952 SC 317

WEEK 9

Sessions 25 and 26– (2 hours)

Module 10: COMMISSIONS

• Sections 75 to 78 and Order 26.

• What are the different commissions that can be issued and which
of them relate to the fact-finding process? Section 75.

• Why does it become necessary to issue commissions in the fact-

finding process? Can they be issued on application orsuomotu?

• What are the pre-requisites for the issue of commissions to

examine witnesses? Have these been watered down by the
1999/2002 amendments? Now by virtue of the insertion of Rule
4A the requirements in Rules 1, 4 and 8 appear to have been
rendered redundant.

• What is the crucial difference between a judge making a spot

inspection and a commissioner making the very same spot
inspection that renders the report of the commissioner
admissible? The report of the Commissioner and the evidence
taken by him shall be evidence in the suit and shall form a part
of the record. Crucially, the court or any of the parties, with the
permission of the court, may examine the
commissioner.(Order26 Rule 10(2)).

• Who pays the expenses of the commissioner? The Court may

order the party for whose benefit or at whose instance the
commission is issued that the expenses be paid into court. Order
26 Rule 15.

• What is the procedure to be followed before the Commissioner?

Rules 16 to 18, Order 26.

Page 48 of 90
 • Cases where Commissioners appointed : (all additional
readings)

AmarendraPratap Singh vsTejBahadurPrajapati AIR 2004 SC 3782:

matter remanded to the trial court with a direction that the trial court shall
appoint a commissioner to determine the extent of encroachment.

Praga Tools Corporation Limited vsMahaboobunnissa Begum 2001(6)

SCC 238: remand by the Supreme Court with a direction to get the lands
surveyed through a surveyor and determine in which village the lands were
situated.

Kumari Verma vs State of Kerala AIR 2006 SC 3048: High Court directed
Forest Tribunal to appoint a Commissioner to determine the extent of
cardamom plantation. Approved by the Supreme Court.

Sharda vs Dharmpal AIR 2003 SC3450: In a divorce case, petitioner

sought direction for medical examination of wife on the ground of lunacy –
held that such a direction could be issued to appoint a medical expert.
Failure to comply would justify adverse inference being drawn.

• How much weight does the report of the Commissioner carry?

Chandan Mull Indra Kumar vsChimanLalGirdhar Das Parekh
AIR 1940 PC 3: should not easily overrule report of the
Commissioner whose integrity and carefulness are unquestioned.

• The rationale for appointment of Commissioners appears to be

that it enables the court to get to the best evidence available.

• The English conservative approach: Abbey National Mortgages

PLC Vs Key Surveyors Nationwide Limited 1996 (3) AER 184:
the appointment of a commissioner even on the application of a
party deprecated.

BASIC READING
• Sections 75 to 78 and Order 26.

ADDITIONAL READING
• Takwani Pages: 322 to 327.
• AmarendraPratap Singh vsTejBahadurPrajapati AIR 2004 SC
3782:
• Praga Tools Corporation Limited vsMahaboobunnissa Begum
2001(6) SCC 238
• KumariVermavs State of Kerala AIR 2006 SC 3048
• ShardavsDharmpal AIR 2003 SC3450
• Chandan Mull Indra Kumar vsChimanLalGirdhar Das Parekh AIR
1940 PC 3
• Abbey National Mortgages PLC Vs Key Surveyors Nationwide
Limited 1996 (3) AER 184

Page 49 of 90
WEEK 9

Session 27– (2 hours)

Module 11: Summary of Fact-finding techniques that parties can use

to detect, collect and place on record evidence in the case
(all cases referred are additional readings)

DOCUMENTS

• Document in possession of party: produce original with copy and include

in the list of documents under Order 7 Rule 14or Order 8 Rule 1A+ ensure
marked in evidence through one of the witnesses called. Last chance to
produce originals if not produced with pleadings: at or before settlement of
issues (Order 13 Rule 1).

• Document which is a copy sought to be produced where original with

opponent: Mention it in list of documents(Order 7 Rule 14 or Order 8 Rule
1A) + Issue Notice to Produce under sections 65/66 Indian Evidence Act,
1872, read with Order 12 Rule 8 (Form 12)CPC + get xerox marked
through a witness.

• Document in possession of opponent to be produced by order of

court:Make an application for an order under Order 11 Rule 14 or under
Order 16 Rule 14 r/w Rule 21.

• Document in the custody of a third party stranger: make an application

under Order 16 Rule 14.

• Document in the custody of another court: Application under Order 13

Rule 10.

• Document in the custody of another person present in court: Seek order

under Order 16 Rule 7.

• How to know which documents are/were in the custody of the

opponent? Make an application for discovery on affidavit under Order 11
Rule 12 for discovery of documents on oath.

• How to know whether opponent has a particular document in question?

Make application under Order 11 Rule 19 (3).

Page 50 of 90
• How to get inspection of documents referred to in pleadings or
affidavits? Give notice under Order 11 Rule 15.

• How to get admitted signature of opponent? Seek order under Section

73 Indian Evidence Act, 1872.

• Residuary: Use Section 165.

ORAL EVIDENCE

• Evidence of own willing party/witness: Make sure present in court on the

date of his/her evidence (Order 16 Rule 1A).

• Evidence of own recalcitrant witnesses: Name in list of witnesses under

Order 16 Rule 1 and get summonses issued and call at trial.

• Evidence of party opponent: Make application under Order 16 Rule 14

read with Rule 21.

• Evidence of strangers: Make application under Order 16 Rule 14 or get

summonses issued under Order 16 Rule 1.

• How to get to know the oral evidence of opponent before the trial?
Make an application for discovery on interrogatories under Order 11 Rule
1 and use them during the trial under Rule 22.

• How to get a witness recalled? Make an application under Order 18 Rule

17 and try.

• How to get the evidence of a witness who is sick or unable to attend

court for any reason? Make an application for appointment of a
commissioner under Section 75 read with Order 26.

• Residuary: Section 165.

OTHER

• How to get the judge to conduct a spot inspection? Apply under Order
18 Rule 18.

• How to get a local investigation done, or a scientific investigation or

get accounts examined? Make an application under Section 75 read with
Order 26.

• Can the witnesses’ demeanor be evidence? Yes, ask that it be recorded

under Order 18 Rule 12.

• How to make an affidavit part of the evidence ? Make an application for

an order under section 30.

Page 51 of 90
 Module 11: Can the judge enter the fray? Section 165 Indian
Evidence Act, 1872, read with other provisions in the Evidence Act
and the Code

• Section 165 read with Order 18 Rule 18, Section 75, Order 16 Rule 14,
Order 11, Rule 14, Section 30, Section 73 (Evidence Act) and other
provisions appear to confer great powers on the trial judge to suomotu
procure evidence and record the same. This raises the question of how
inquisitorial or adversarial our system really is. When contrasted with the
English legal system, it is seen that in England, the judges do not even have
the power to do many of the things that Indian judges are empowered to do
under Indian statute law.

• Power to examine a person in the witness box: Pratap Singh vsRajendra

Singh AIR 1975 SC 1045: in an election petition matter remanded with a
direction that the trial judge re-call the witnesses and examine them
suomotu under section 165.

Approach of the English courts: Jones vs National Coal Board 1957 (2)
AER 155 (COA)- the power is only for the purposes of clarifying – not for
collecting evidence.

• Power to appoint commissioners: English approach: Abbey National

Mortgages PLC vs Key Surveyors Nationwide Limited 1996(3) AER 184-
appointment of an expert even on the application of the party deprecated.

• Power to summon witnesses/documents suomotu: English approach: Re

Enoch and Zaraetzky, Bock and Co’s Arbitration 1910 (1) KB 327 –
judge cannot call a witness of his own accord against the will of the parties
because the civil rights of a man cannot be decided by the evidence of
persons whose personal credibility and accuracy of statements cannot be
tested as of right by cross-examination.

• Power to require specimen handwriting: recognized in English law also-

Cobbett vs Kilminister.

• Power to conduct a spot-inspection: English law: Buckingham vs Daily

News Ltd 1956 (2) QB 534- judge is entitled to treat the results of an
inspection as evidence.

Hence, only insofar as spot inspections are concerned, the English system
is more inquisitorial. In all other areas, powers are greatly restricted.

FURTHER READING/QUESTIONS

• Compare and contrast fact-finding techniques in India, UK and Germany.

Which system allows for the greatest powers to the judge to get to the truth?

• If inquisitorial techniques are restricted, what does that imply for the goals
of the civil justice system?

Page 52 of 90
WEEK 10

Sessions 28 and 29– (2 hours)

Module 11: JUDGMENT AND DECREE
(all cases referred are additional readings)

• Section 33, Order XX.

• What is the difference between a judgment, a decree and an order?

Definitions in Section 2(2), 2(9) and 2(14).

• What are the requirements of a valid judgment?

• The judgment shall be pronounced in open court (Order 20 Rule 1);
• Within 30 or 60 days (in exceptional cases) from the date hearing was
concluded (Order 20 Rule 1);
• It shall be dated and signed by the judge in open court at the time of
pronouncement (Order 20 Rule 3);
• It should contain a concise statement of the case, the points for
determination, the decision thereon and the reasons for such decision.
(Order 20 Rule 4).
• It shall state its finding on each issue (Order 20 Rule 5).

• If the formalities of a judgment are not complied with, is the judgment

vitiated?

• Surendra Singh vs State of UP AIR 1954 SC 194but note Order 20 Rule

2.

• Smt. Swaran Lata Ghosh vs HK Banerjee 1969(1) SCC 709- recording of

reasons essential.Judge must record the ultimate mental process leading
from the dispute to its resolution.

• Are statements recorded by the court as to what transpired in court

conclusive? State of Maharashtra vs Ramdas Shrinivas Nayak (1982) 2
SCC 463.

• Can a judgment be corrected once it is signed? Order 20 Rule 3.

• What should be contained in a decree? Order 20 Rule 6.

• Who draws up the decree?

• Can an appeal be filed against the decree without a copy of the same if
decree is not yet drawn? Order 20 Rule 6A.

• If the previous judge has vacated office before signing the decree can his
successor sign it? Order 20 Rule 8.

• What are the requirements of a decree for recovery of immovable property?

Order 20 Rule 9.

Page 53 of 90
 • What are the requirements of a decree for delivery of movable property?
Order 20 Rule 10.

• When can the defendant seek payment of the decretal sum by installments
or seek postponement? Order 20 Rule 11.

• Can the court decree future mesne profits even if not prayed for? Order 20
Rule 12.Gopalakrishna Pillai vs Menakshi Ayal AIR 1967 SC 155.

• Why are mesne profits limited to 3 years under Order 20 Rule 12? Chittoori
Subbanna vs Kudappa Subbanna AIR 1965 SC 1325.

• What are the requirements of a decree for specific performance of contract

for the sale or lease of immovable property? Order 20 Rule 12A.

• What are the requirements of a decree in certain other types of suits?

Administration suits - Order 20 Rule 13. Pre-emption suits- Order 20 Rule
14. Suits for dissolution of partnership- Order 20 Rule 15. Suits for
account between principal and agent – Order 20 Rule 16. Suit for partition
of property or separate possession or share therein – Order 20 Rule 18.
Decree where set-off or counter-claim allowed- Order 20 Rule 19.

• General principles with regard to preliminary and final decrees:

• A preliminary decree is not executable unless a final decree is applied for
and passed. Sankar Balwant Lokhande vs Chandrakant Balwant
Lokhande AIR 1995 SC 1211.
• If appeal against preliminary decree succeeds, the final decree automatically
falls to the ground.
• Residuary power to pass preliminary decree – Order 20 Rule 16.

BASIC READING
• Section 33, Order XX.

ADDITIONAL READING
• Takwani, Part 2, Chapter 15
• Surendra Singh vs State of UP AIR 1954 SC 194
• Smt. Swaran Lata Ghosh vs HK Banerjee 1969(1) SCC 709
• State of Maharashtra vs Ramdas Shrinivas Nayak (1982) 2 SCC 463.
• Gopalakrishna Pillai vs Menakshi Ayal AIR 1967 SC 155.
• Chittoori Subbanna vs Kudappa Subbanna AIR 1965 SC 1325.
• Sankar Balwant Lokhande vs Chandrakant Balwant Lokhande AIR 1995
SC 1211.

Module 11 : INTEREST

• Section 34; Order 24 Rule 3.

• What is interest? How would you define it?

• What are the 3 stages when interest can be allowed and what are the
parameters for each type?

Page 54 of 90
 • Section 34.
• Union of India vs Watkins Mayor and Co AIR 1966 SC 275.
• Mahesh Chandra Bansal vs Krishna Swaroop Singhal 1997 (10) SCC 681.
(additional reading)

• What are the salient features of the Interest Act, 1978?

BASIC READING
• Section 34. The Interest Act, 1978.
• Union of India vs Watkins Mayor and Co AIR 1966 SC 275.

ADDITIONAL READING
• Chapter 15(4), Takwani
• Mahesh Chandra Bansal vs Krishna Swaroop Singhal 1997 (10) SCC 681.

Module 11 : COSTS

• Sections 35, 35A and 35B; Order XXA, Order 20 Rule 6; Karnataka Civil
Rules of Practice 1967.

• What are the differences between award of costs under sections 35, 35A and
35B?

• The general principle is that costs should follow the event. Jugraj Singh vs
Jaswant Singh 1970(2) SCC 386; Kali Prasad Singh vs Ram Prasad
Singh (1974) 1 SCC 182. (additional readings)

• Ashok Kumar Mittal vs Ram Kumar Gupta (2009) 2 SCC 656: under
section 35 award of costs is discretionary; the primary object is to
recompense a litigant for the expenses incurred by him in the litigation; it
is paid by the loser to the winner; present system of meagre costs
deprecated.

• T.Aravindam vs TV Satyapal (1977) 4 SCC 467: in frivolous and vexatious

cases trial judge should impose punitive costs under section 35A.
(additional reading)

• What is the procedure adopted for taxation of costs? Rules 99, 100,
Karnataka Civil Rules of Practice 1967.

BASIC READING
• Sections 35, 35A and 35B; Order XXA, Order 20 Rule 6; Karnataka Civil
Rules of Practice 1967.
• Ashok Kumar Mittal vs Ram Kumar Gupta (2009) 2 SCC 656

FURTHER READING
• Takwani Pages: 404 to 417.
• Jugraj Singh vs Jaswant Singh 1970(2) SCC 386; Kali Prasad Singh vs Ram
Prasad Singh (1974) 1 SCC 182.
• T.Aravindam vs TV Satyapal (1977) 4 SCC 467

Page 55 of 90
WEEK 10

Session 30– (2 hours)

MODULE 12: DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

(all cases to be treated as additional readings)

• Order 22.

• When does the suit abate upon the death of a Plaintiff or

Defendant? Order 22, Rule 1. What is the meaning of the
phrase “right to sue”? Is it the same as “cause of action”? The
“right to sue” in Order 22 means the right to bring a suit
asserting a right to the same relief which the deceased Plaintiff
asserted at the time of his death.

• What determines whether the right to sue survives or not? The

substantive law inter alia, section 37 of the Indian Contract Act,
section 306 of the Indian Succession Act, etc.

• Where there are multiple Plaintiffs or Defendants and upon the

death of 1 of them, the right to sue survives to the remaining
parties alone, what is the procedure? Order 22 Rule 2: Court
shall make an entry to that effect and the suit will proceed.

• Where a sole Plaintiff dies or 1 of two of more Plaintiffs dies and

the right to sue does not survive to the remaining parties alone,
then what is the procedure? Order 22 Rule 3: On an application
made in that behalf, the court shall cause the legal
representatives of the deceased Plaintiff to be made parties and
then proceed with the suit. If within the time limited by law (ie,
90 days under Article 120 of the Limitation Act), no application
is made, the suit shall abate.

• Is any order required to be made where the suit abates? No. It

happens automatically.

• Where a sole Defendant dies or 1 of two of more Defendants dies

and the right to sue does not survive against the remaining
parties alone, then what is the procedure? Order 22 Rule 4: On
an application made in that behalf, the court shall cause the
legal representatives of the deceased Defendant to be made
parties and then proceed with the suit. If within the time limited
by law (ie, 90 days under Article 120 of the Limitation Act), no
application is made, the suit shall abate.

• When can the Court exempt the Plaintiff from substituting the
legal representatives of a deceased Defendant? Order 22, Rule
4.

• If the suit has already abated as a consequence of not bringing

the legal representatives on record within the time specified in

Page 56 of 90
 Article 120 Limitation Act, what is the procedure? Application
under Order 22 Rule 9 to set aside the abatement to be filed
within a further period of 60 days to set aside the abatement
(Article 121). If even the 60-day period has expired, then an
application under section 5 of the Limitation Act will also
have to be filed explaining the delay and seeking condonation
thereof.

• Is the fact that the Plaintiff was ignorant of the death of the
Defendant relevant in condoning the delay? Yes. Order 22 Rule
4(5).

• What is the procedure where there are no legal representatives?

Order 22 Rule 4A.

• If there is a dispute as to who the legal representatives are, how

is that dispute to be resolved? Order 22 Rule 5.

• Can a suit abate by reason of death after hearing of the case has
been concluded? No. Order 22 Rule 6. Can a judgment be
pronounced against a dead person?

• Does a fresh suit lie on the same cause of action as a suit that
has abated? No. Order 22 Rule 9. But what does the
explanation say?

• Duty of pleader to communicate to court death of a party- Order

22 Rule 10A.

• If there are multiple Plaintiffs or Defendants and one of them

dies, does the suit abate as a whole or only insofar as the
deceased Plaintiff or Defendant is concerned? State of Punjab
vsNathu Ram AIR 1962 SC 89.

• If all the legal representatives of a deceased party are not

impleaded, what is the effect? DolaiMalikovsKrushna Chandra
Patnaik AIR 1967 SC 49.

• SaraswathiAmmalvs Lakshmi AIR 1989 Mad 216: tricky

question involving death of a husband in a matrimonial
case…do you think the judgment of the High Court was correct?

• What does Order 22 provide regarding abatement by marriage

of a female party? Order 22 Rule 7.

• What does Order 22 provide with regard to abatement by reason

of insolvency? Order 22 Rule 8.

• What is the procedure in case of assignment during the

pendency of a suit? Order 22 Rule 10.

BASIC READING
• Order XXII of CPC, 1908;

Page 57 of 90
ADDITIONAL READING

• Takwani Pages: 375 to 390.

• State of Punjab vs Nathu Ram AIR 1962 SC 89;
• DolaiMaliko vs Krushna Chandra Patnaik AIR 1967 SC 49;
• SaraswathiAmmal vs Lakshmi AIR 1989 Mad 216

MODULE 12: WITHDRAWAL AND ADJUSTMENT OF SUITS

(all cases to be treated as additional readings)

• Order 23.

• Does the Plaintiff have an unqualified right to withdraw the

suit? Order 23 Rule 1. M/s Hulas RaiBaijNathvs Firm KB
Bass and Co AIR 1968 SC 111. Also S. RathinavelChettiarvs
V. Sivaraman1999(4) SCC 89.

• When should the Plaintiff seek leave to withdraw the suit? Order
23 Rule 1: when there is a formal defect or other sufficient
grounds and he wishes to obtain permission to withdraw with
liberty to institute a fresh suit or if the Plaintiff is a minor, etc.

• If a suit is withdrawn without permission, can a fresh suit be

filed on the same subject-matter? No. Order 23 Rule 1 bars it.

• What are the requirements of a valid compromise under Order

23 Rule 3?

• Does the subject-matter of the compromise have to be the same

as the subject-matter of the suit? Order 23 Rule 3.

• How can a compromise decree be challenged? Order 23 Rule

3A. Section 96 read with Order 43 Rule 1A. HorilvsKeshav
(2012) 5 SCC 525.

• What is the procedure for entering into a compromise in a

representative suit? Order 23 Rule 3B.

• Who is liable for the costs when a suit is withdrawn? Order 23

Rule 1.

BASIC READING
• Order XXIII of CPC, 1908;

ADDITIONAL READING
• Takwani Pages: 363 to 374.

Page 58 of 90
 • M/s Hulas RaiBaijNath vs Firm KB Bass and Co AIR 1968 SC
111;
• S. Rathinavel Chettiar vs V. Sivaraman 1999(4) SCC 89
• Horil vs Keshav (2012) 5 SCC 525

WEEK 11

Sessions 31 and 32– (2 hours)

MODULE 12: INTERLOCUTORY ORDERS

• Sections 94 and 95; Orders 38, 39, 40 (possibly 24 and 25

also).

• What are the different categories of interlocutory orders that

may be passed by the court under the heading “supplementary
proceedings” (section 94, Part VI of the Code) ? Arrest and
attachment before judgment (Order 38); Temporary Injunctions
(Order 39); Appointment of Receivers (Order 40); Payment into
Court (Order 24) and Security for Costs (Order 25).

TEMPORARY INJUNCTIONS: ORDER 39.

• What are the different categories of temporary injunctions that

can be granted under Order 39?
• For protection of any property that is in danger of being wasted,
damaged or wrongfully alienated, wrongfully sold, being
disposed of with a view to defraud creditors, or that the Plaintiff
might be dispossessed of, etc. Order 39Rule 1.
• For restraining the Defendant from committing a breach of
contract or other injury of any kind. Order 39 Rule 2.
• To order interim sale of movable property which is subject to
speedy and natural decay. Order 39 Rule 6.
• For the detention, preservation or inspection of any property.
Order 39 Rule 7.
• Where land paying revenue to government is ordered to be sold
for failure to pay land revenue. Order 39 Rule 9.
• Order to deposit money held by a trustee. Order 39 Rule 10.
• If the application in question does not satisfy the requirements
of the aforementioned provisions, under which provision would
one apply? The residuary section 151. ManoharLal Chopra
vsRaiBahadurRao Raja Seth Hiralal AIR 1962 SC 527.

• What happens to a temporary injunction if the suit is dismissed

for default but then restored? Vareed Jacob
vsSosammaGeevarghese (2004) 6 SCC 378. (additional
reading)

Page 59 of 90
 • What are the considerations that the court will take into
account in deciding whether or not to grant a temporary
injunction?
• Dalpat Kumar vsPrahlad Singh AIR 1993 SC 276 – “the three
pillars”. (additional reading)
• M/s Gujarat Bottling Co Ltd vs Coca Cola Company AIR
1995 SC 2372- fair and honest conduct of an applicant
necessary.
• Whether the applicant has delayed making the application.
• Acquiescence.
• Whether monetary compensation would be adequate.
(additional reading)

• What is the procedure for grant of an injunction? Is notice to

the opponent necessary? Order 39 Rule 3. If an ex parte
injunction is to be granted, what procedure would need to be
followed? Order 39 Rule 3 and Rule 3A.

• What is the difference between an ad interim and an interim

injunction? Order 39 Rules 3 and 3A.

• How can the opponent overcome an injunction order?

Application to vacate it under Order 39 Rule 4. If an injunction
has been granted after hearing both sides, will an application to
vacate it be maintainable?

• If the injunction granted by the court is violated, what steps

should be taken and what would be the consequences thereof?
Order 39 Rule 2A.

• Whom does an injunction against a corporation bind? Order 39

Rule 5.

• What is the difference between an order of stay and an order of

injunction? “Stay” generally applies to judicial or administrative
proceedings whilst injunction generally applies to a person.

• What is the difference between an interim injunction and a

permanent injunction? Permanent- forever. Temporary-until
disposal of the suit. Also see sections 38 to 42 of the Specific
Relief Act, 1963.

• What is the difference between a preventive injunction and a

mandatory injunction?

• Does res judicata apply to interlocutory applications? Generally

yes- though the wording in section 11 might not in terms apply.

• What is an order of “status quo”?

ARREST AND ATTACHMENT BEFORE JUDGMENT: ORDER 38

Page 60 of 90
 • When can a defendant be called upon to furnish security for his
appearance? Order 38 Rules 1 to 4.What is the exception
carved out in Rule 1? Suits of the nature referred to in section
16 (a) to (d).

• What is the maximum period for which a defendant can be

detained in prison under Order 38 Rules 1 to 4? Order 38 Rule
4.

• When can a defendant’s property be attached before judgment?

Order 38 Rules 5 to 13.

• What are the parameters for exercise of discretion under Order

38? Raman Tech and Process Engg Co vsSolanki Traders
(2008) 2 SCC 302- (additional reading)- the object of
supplemental proceedings like arrest and attachment before
judgment is to prevent the ends of justice being defeated
especially the realization of the decree that may ultimately be
passed in favour of the Plaintiff. The power under Order 38 Rule
5 CPC is drastic and extraordinary and to be used sparingly and
strictly. Attempts to use it as leverage to settle the case should
be discouraged.

• If arrest or attachment is obtained on insufficient grounds, what

is the remedy? Section 95.

RECEIVERS : ORDER 40

• Who is a “receiver”? “An impartial person appointed by the court

to collect and receive, pending the proceedings, the rents, issues
and profits of land or personal estate, which it does not seem
reasonable to the court that either party should collect or
receive, or for enabling the same to be distributed among the
persons entitled”. A receiver is an officer and extended arm and
hand of the court, a part of the court machinery.

• What is the object of the appointment of a receiver? To protect,

preserve and manage the property during the pendency of the
litigation.

• When can a receiver be appointed and what is the procedure

applicable? Order 40 Rules 1 to 5. Benoy Krishna Mukherjee
vsSatish Chandra Giri 1927 ILR PC 720 (additional reading)–
appointment of a receiver of property in possession of a
Defendant should be made only if there is a well-founded fear
that the property will be dissipated or irreparably injured.

• Why is appointment of a receiver considered a harsh remedy? It

deprives the person in possession of the property during the
pendency of the suit. It is thus generally not ordered if one party
is in de facto possession but may be ordered if the property is in
medio.

Page 61 of 90
 PAYMENT INTO COURT: ORDER 24

• What are the rules pertaining to payment into court? Order 24

Rules 1 to 4.

• How arecosts calculated when payment is made into court?

Order 24 Rule 4.

• What is the effect on liability to pay interest once payment is

made into court? Order 24 Rule 3.

SECURITY FOR COSTS: ORDER 25

• When can the Plaintiff be required to furnish security for costs?
Order 25 Rules 1 and 2.

BASIC READING
• Sections 94, 95 and 151 and Orders 38, 39, 40 of CPC, 1908;
• Sections 38 to 42 of the Specific Relief Act, 1963;
• Manohar Lal Chopra vs Rai Bahadur Rao Raja Seth Hiralal AIR
1962 SC 527;
• Order XXV of CPC, 1908
• Order XL of CPC, 1908;
• Order XXIV of CPC, 1908
• Order XXXVIII and Section 95 of CPC, 1908;

ADDITIONAL READING
• Takwani Pages: 318 to 362.
• Vareed Jacob vs SosammaGeevarghese (2004) 6 SCC 378.
• Dalpat Kumar vs Prahlad Singh AIR 1993 SC 276.
• M/s Gujarat Bottling Co Ltd vs Coca Cola Company AIR 1995
SC 2372.
• Benoy Krishna Mukherjee vs Satish Chandra Giri 1927 ILR PC
720.
• Raman Tech and Process Engg Co vs Solanki Traders (2008) 2
SCC 302.

WEEK 11

Session 33, and WEEK 12 sessions 34, 35, 36 (8 hours)

EXECUTION
(only the cases indicated under “Basic Reading” to be read)

A. WHAT IS “EXECUTION”?

The word has not been defined in the Code, but in its widest sense, it signifies
the enforcement or giving effect to a judgment or order of a court of justice
(Halsbury’s Laws of England). Execution is the enforcement of decrees and

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 orders by the process of the court, so as to enable the decree-holder to realize
the fruits of the decree. Execution is complete when the decree holder gets
the money or other thing awarded to him by the decree or order.

B. WHERE ARE THE PROVISIONS CONTAINED FOR EXECUTION OF

DECREES AND ORDERS?

Part II: sections 36 to 74 and Order 21. Also sections 145 and 146.

C. WHAT ARE THE DIFFERENT HEADS UNDER WHICH EXECUTION CAN BE

DISCUSSED?

• What are the general principles applicable to execution?

• Which courts can execute decrees?
• What are the requirements of an application for execution?
• How is payment to be made under a decree?
• What are the rules applicable to stay of execution?
• What are the different modes available for execution?
• When will the court order arrest and detention in the execution of a
decree and what are the procedures thereof?
• When will the court attach property in execution of a decree and what
are the procedures thereof?
• What procedure applies for sale of property in execution?
• What procedure applies for delivery of possession?
• What procedure applies for distribution of assets when there are
several applications for execution against the same property?
• What are the mechanisms available before the executing court for
adjudication of claims and disputes?
• What questions should be determined by the executing court?

D. WHAT ARE THE GENERAL PRINCIPLES APPLICABLE TO

EXECUTION?

• The executing court cannot go beyond the decree or vary or modify its
terms.
• However, if the terms of the decree are vague, the executing court can
construe the decree and refer even to the pleadings in the suit.
• In case of inherent lack of jurisdiction the decree passed is a nullity
and its invalidity could be raised in execution proceedings – here the
court cannot be said to be going behind the decree as there is no decree
at all. However, the inherent lack of jurisdiction must appear from the
face of the record.
• The executing court can also go into the executability of the decree and
enquire whether the decree has ceased to be executable.
• The executing court has the power to mould the relief granted to the
Plaintiff in accordance with the changed circumstances.
• The principle of res judicata specifically applies to execution
proceedings by virtue of Explanation VII of section 11. But an earlier
decision can operate as res judicata if the execution application has
been heard and finally decided and not otherwise. If the application is
dismissed for default of appearance, non-prosecution, as being
premature or as not pressed, the principle of res judicata will not apply.

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E. Under the Code, the provisions thereof applicable to decrees are
deemed applicable to orders also.Hence, the same procedures would
need to be adopted for execution of orders also.

F. WHICH COURTS CAN EXECUTE DECREES?(sections 37 to 46 and

Order 21 Rules 3,4,9)

• A decree may be executed by the Court which passed it or by the Court

to which it is sent for execution (the transferee court) –section 38.
• However, by virtue of the deeming provision in section 37, the “court
which passed the decree” is deemed to include several other courts as
well.
• Transfer of decree is provided for under section 39- the court which
passed the decree may transfer the decree for execution to another
court of competent jurisdiction ie, as defined in sub-clause (4). The
circumstances under which transfer can be effected are laid out in
section 39.
• Under section 39, the court which passed the decree may also send it
to a subordinate court for execution.
• However, by virtue of section 39 (4), the court which passed the decree
cannot execute the decree against any person or property outside the
local limits of its jurisdiction.
• Cases: Mahadeo Prasad Singh vs Ram Lochan (1980)4SCC 354.
Mohit Bhargava vs Bharat Bhushan Bhargava (2007) 4 SCC 795.
• The transferee court shall have the same powers in executing the
decree as if it had been passed by itself. However, there are some fetters
on the powers of the transferee court. Section 42.
• Procedure to be adopted for transfer of a decree- sections40, 41, 42
and Order 21 Rules 4, 5,6,7,8,9.
• Precepts- section 46. What is a precept and when will it be issued?
• What are the exceptions to the rule that a court cannot execute against
person or property outside its territorial jurisdiction? Order 21 Rule
3.
• Can a decree be executed in more than 1 court? Yes- but this should
be done only in exceptional cases.

G. APPLICATION FOR EXECUTION

• What is the procedure for seeking execution? Is a written application

always necessary? Order 21 Rules 10,11.
• What details should be contained in the application for execution?
Order 21 Rules 11 to 14.
• What is the enabling provision with regard to joint decree holders?
Order 21 Rule 15.
• What is the procedure in case of cross-decrees and cross-claims?
Order 21 Rules 18 to 20.
• What is the procedure to be adopted after filing of the application?
Order 21 Rules 17, 22, 23, 24, 25. When is notice required to be
issued on an application for execution?

H. PAYMENT UNDER A DECREE (Order 21 Rules 1 and 2)

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• How can money payable under a decree be paid?
• If a payment has not been certified or recorded, what is the effect?

I. WHO CAN MAKE AN APPLICATION AND AGAINST WHOM CAN IT

BE MADE ?

• Section 146: where any proceeding may be taken or application made

by or against any person, then the proceeding may be taken or the
application may be made by or against any person claiming under him.
• However, under section 49 the transferee shall hold the decree
subject to the same equities that judgment-debtor might have enforced
against the original decree-holder.
• Further however, under section 50 if judgment-debtor dies before
decree has been fully satisfied, the decree can be executed against the
legal representatives of the deceased only to the extent of the property
of the deceased which has come to his hands and has not been duly
disposed of. However, if the legal representative has not duly applied
the property of the deceased, the decree may be executed against the
judgment-debtor in the same manner as if the decree was against him
personally-section 52. See also section 53.
• Further however, in case of assignment of the decree, no such decree
shall be executed unless notice is given to the judgment debtor and the
transferor and they have been heard on their objections. Order 21
Rule 16.
• Note Order 21 Rule 22A: death of judgment debtor before sale but
after proclamation of sale does not vitiate the sale.
• The liability of a surety has been specifically provided in section 145.
• In a representative suit, a beneficiary may apply for execution, even if
he has not been made a party.
• One or more of joint decree-holders can apply subject to conditions.
Order 21 Rule 15.

J. STAY OF EXECUTION (Order 21 Rules 26 to 29)

• Which are the courts empowered to stay execution? The court

to which the decree has been sent (section 26) may stay for a
reasonable time; & the court which passed the decree or the
appellate court (section 28).
• Stay where another suit pending between decree holder and
judgment debtor (section 29).
• Shaukat Hussain vs SmtBhuneshwari Devi (1972) 2 SCC
731.

K. MODE OF EXECUTION GENERALLY (sections 51, 54, Order 21

Rules 30 to 36)
• Section 51: Powers of the court to enforce execution: subject to
such limitations and conditions as may be prescribed, the Court
may order execution of the decree by one of the modes
prescribed or in such other manner as the nature of the relief
granted may require.
• Section 54: partition and separate possession of undivided
estate shall be made by the Collector.

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 • What are the different modes prescribed for execution for
particular types of decrees? Order 21 Rules 30 to 36.
• How is a decree for restitution of conjugal rights to be executed?
Order 21 Rules 32, 33.

L. ARREST AND DETENTION (Sections 51, 55, 56, 57, 58, 59 and
Order 21 Rules 11, 21, 30, 31, 32, 37 to 40)

• What are the safeguards and pre-conditions for arrest in

execution?
✓ Order 21 Rule 21: court may refuse simultaneous
execution at the same time against the person and
property of the judgment debtor.
✓ Section 55: detention shall be in civil prison.
✓ Shall be brought before court as soon as possible
(section 55 and Order 21 Rule 38).
✓ No dwelling house shall be entered after sunset
and before sunrise. (section 55).
✓ Outer door of dwelling house not to be broken
open unless…(section 55).
✓ Room in occupancy of a woman who does not
appear in public according to custom (section 55).
✓ State Government may prescribe special
procedure for certain persons. (section 55).
✓ Section 57: State Government may fix scales for
allowances payable for the subsistence of
judgment-debtors. Order 21 Rule 39: decree
holder bound to pay into court subsistence
allowance.
✓ Release on the ground of illness permitted-
section 59.

• What are the additional safeguards with regard to arrest in

execution of a money decree?
✓ Opportunity of showing cause necessary (section
51 and Order 21 Rule 37).
✓ The court for reasons to be recorded in writing
should be satisfied that (a) judgment debtor likely
to abscond or has dishonestly transferred property
or committed any other act of bad faith (b) the
decretal amount is a sum which the judgment
debtor was bound in a fiduciary capacity to
account or (c) the judgment debtor has the means
but refuses or neglects to pay. (Section 51).
✓ If judgment debtor pays the sum due to the officer
arresting, such officer shall at once release him
(section 55).
✓ Under section 55(3) – once the judgment debtor
is arrested and brought before the court, the Court
is bound to inform him that he may apply to be
declared an insolvent.
✓ No woman shall be arrested or detained in
execution of a decree for the payment of money
(section 56).

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 ✓ Persons detained in execution of a money decree –
maximum periods of detention are prescribed in
section 58.
✓ A judgment debtor released is not discharged from
his debt, but he shall not be liable to be re-arrested
(section 58).
✓ Special procedure before committal to civil prison
(Order 21 Rule 40).
• Why is a distinction made in the Code with regard to execution
of regular decrees and money decrees?
• Cases: Shyam Singh vs Collector, District Hamirpur, UP
(1993) Supp 1 SCC 693; PadraunaRajkrishna Sugar Works
Ltd vs Land Reforms Commissioner 1969 (1) SCC 485;
Subrata Roy Sahara vs Union of India (2014) 8 SCC 470;
Jolly George Varghese vs The Bank of Cochin (1980) 2 SCC
360.

M. ATTACHMENT (sections 60 to 64 and Order 21 Rules 41 to 59)

• Attachment is a process by which a court , at the request of a

decree holder, designates specific property owned by
the judgment debtor, to be transferred to the decree holder, or
sold for the benefit of the decree holder.
• The primary object of attachment is to give notice to the
judgment debtor not to alienate the property to anyone as also
to the general public not to purchase or deal with the property
attached. Attachment is not a condition precedent for sale.
• Section 64 provides that any private transfer or delivery of
property attached shall be void. However, the section does not
apply to any private transfer or delivery of the property attached
made in pursuance of a contract entered into and registered
before the attachment.
• Section 60 provides a non-exhaustive list of all properties liable
to attachment that are “saleable”; it also provides a list of items
that cannot be attached and sold. Under section 60(1-A) no
person can waive the benefit of these exemptions from
attachment. Section 61 provides that the State Government
may exempt agricultural produce from attachment.
• Section 62 imposes safeguards to be observed whilst attaching
property.
• Section 63 provides that if the same property is under
attachment in execution of decrees of more than 1 court, then
the Court entitled to deal with the property shall be the court of
the highest grade or the court which first attached the property.
• Order 21 Rule 41 provides that in a money decree, the
judgement debtor or any other person can be examined as to
the properties available or court can require an affidavit stating
the particulars of the assets of the judgment debtor.
• Order 21 Rule 42 provides for attachment even if the amount
due has not yet been ascertained such as where enquiry as to
rents or mesne profits is pending.
• Order 21 Rules 43 to 54 provide for the manner of making the
attachment with regard to different types of properties. See
Takwani’s Chart page 656.

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 • It is to be noted that disputes arising in the course of
attachment can be decided by the court and such orders of the
court are deemed to be decrees (ie can be appealed against)-
Order 21 Rule 43A (determination of liability of a custodian of
movable property); Order 21 Rule 46H (orders in cases
involving Garnishees); &Order 21 Rule 50 (liability of a partner
of a firm). Also Order 21 Rule 58.
• What is the procedure adopted in the Code as to recovery from
Garnishees? Order 21 Rules 46A to H. The same procedure
applies to negotiable instruments. (Order 21 Rule 46I)
• What is the procedure for attachment of immovable property?
Order 21 Rule 54.
• When is the attachment removed or withdrawn? Order 21 Rule
55.
• When does the attachment determine? Order 21 Rule 57.
• What is the procedure for attachment of coin or currency notes?
Order 21 Rule 56.
• What is the procedure for adjudication of claims and objections
on the ground that the property in question is not liable to be
attached? Order 21 Rule 58. If the court refuses to entertain
the claim, what remedy is available? If the court entertains and
determines the issue, what is the effect?
• When might the court stay the sale? Order 21 Rule 59.

N. SALE
• Section 65 provides that when immovable property is sold and
such sale has become absolute, the property is deemed to have
vested from the time the property is sold and not when the sale
becomes absolute.
• Section 67 empowers the State Government to make rules for
the sales of land in execution of decrees where the value of the
lands are uncertain.
• Under rule 64 the court is empowered to order any property
attached by it and liable to sale to be sold and that the proceeds
shall be paid to the party entitled to it under the decree.
• The following safeguards are enshrined in the Code:
➢ Every sale in execution of a decree shall be conducted by
an officer of the court or court-appointed person and it
shall be made by public auction, in the manner
prescribed. Rule 65.
➢ Proclamation of the intended sale is mandatory, after
notice, and compliance with the other requirements of
rules 66 and 67.
➢ The time of sale is prescribed by rule 68.
➢ Rule 69 provides for adjournment or stoppage of sale if
the amount due is paid.
➢ Rule 71 provides that the defaulting purchaser is
answerable for the loss on re-sale.
➢ Rules 72 and 72A provide that the decree-holder and
mortgagee cannot bid at the auction without the leave of
the court.
➢ Officers are prohibited from bidding in these sales- Rule
73.

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 Rules 74 to 81 (specifically with regard to sale of
movable property)
➢ Rules 74 to 76 provide special provisions for sales of
movable propertysuch asagricultural produce, growing
crops and negotiable instruments.
➢ Under Rule 77, in the case of movable property sold by
public auction, upon the payment of the purchase
money, and the grant of a receipt for the same, the sale
becomes absolute.
➢ Under Rule 78,no irregularity in the sale of movable
property shall vitiate the sale, but a fresh suit for
compensation and recovery of the property is not barred.
➢ Rules 82 to 96 make specific provision for the sale of
immovable property.

Rules 82 to 96 (specifically with regard to sale of

immovable property)
➢ Rule 82: Court of Small Causes cannot order sale
of immovable property.
➢ Rule 83 provides that sale may be postponed if
judgment debtor satisfies the court that decretal
amount can be raised by private sale or otherwise;
in such a case the court will grant a certificate to
the judgment debtor authorizing him to make the
proposed sale notwithstanding section 64 (ie any
attachment of the property).
➢ Purchaser of immovable property is bound to
deposit 25% immediately, failing which the
property will be re-sold forthwith – Section 84.
➢ Within 15 days from the date of sale the purchase
money shall be paid in full: Rule 85.
➢ In case of failure to pay the purchase money, the
property shall be re-sold and the defaulting
purchaser will forfeit his deposit – Rule 86.
➢ Upon re-sale, fresh proclamation is to be issued-
Rule 87.
➢ Bid of a co-sharer shall have preference – Rule 88.
➢ After the sale, there are 3 provisions under which
the sale still be set aside: Order 21 Rules 89
(application to set aside on deposit), 90
(application to set aside sale on the ground of
irregularity or fraud) and 91(application by
purchaser to set aside sale on the ground of
judgment debtor having no saleable interest).
➢ Under Order 21 Rule 92 where no application is
made under the three rules or where such an
application is made and disallowed, the Court
shall make an order confirming the sale and only
thereupon the sale shall become absolute.
➢ Where sale is set aside, the purchase money will
be returned to the purchaser – Rule 93.
➢ Once the sale has become absolute, the Court
shall grant a certificate specifying the property
sold and the name of the person declared to be the
purchaser and the date on which the sale became

Page 69 of 90
 absolute. Order 21 Rule 94. However, this is only
a ministerial act.

Cases: ManilalMohanlal Shah vs Sardar Syed

Ahmed Sayed Mahmud AIR 1954 SC 349; A.
Venkatachalam vs E.M. Zackria 1987 (Supp)
SCC 124; AmbatiNarasayya vs M. Subba Rao
1989 Supp(2) SCC 693; Ganpat Singh vs
Kailash Shankar (1987) 3 SCC 146.

O. DELIVERY OF POSSESSION
• Movable property – Order 21 Rules 79 to 81.
• Immovable property – Order 21 Rules 95 to 104.
• Resistance to possession of immovable property- Order 21
Rules 97, 98 (civil prison).
• Dispossession of person other than judgment debtor – Order 21
Rules 99, 100, 101, 102, 103, 104. Deemed decree.

P. PROCEEDS OF EXECUTION SALE TO BE RATEABLY

DISTRIBUTED AMONGST DECREE HOLDERS - Section 73.

Q. DEFAULT IN EXECUTION PROCEEDINGS – Order 21 Rules 105 and

106.

R. CAN A SUIT LIE TO CORRECT ANYTHING DONE IN EXECUTION

PROCEEDINGS?
• Section 47 : all questions arising between the parties to the suit
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.

BASIC READING
• Sections 36 to 74 and Order XXI of CPC, 1908.
• Shyam Singh vs Collector, District Hamirpur, UP (1993) Supp 1
SCC 693.
• Jolly George Varghese vs The Bank of Cochin (1980) 2 SCC 360.
• Ambati Narasayya vs M. Subba Rao 1989 Supp(2) SCC 693.
• Ganpat Singh vs Kailash Shankar (1987) 3 SCC 146.

ADDITIONAL READING
• Takwani Part IV
• Mahadeo Prasad Singh vs Ram Lochan (1980)4SCC 354;
• Mohit Bhargava vs Bharat Bhushan Bhargava (2007) 4 SCC 795;
• Shaukat Hussain vs SmtBhuneshwari Devi (1972) 2 SCC 731;
• PadraunaRajkrishna Sugar Works Ltd vs Land Reforms
Commissioner 1969 (1) SCC 485;
• Subrata Roy Sahara vs Union of India (2014) 8 SCC 470;
• ManilalMohanlal Shah vs Sardar Syed Ahmed Sayed Mahmud AIR
1954 SC 349;
• A. Venkatachalam vs E.M. Zackria 1987 (Supp) SCC 124.

SYLLABUS TO BE COVERED IN CPC2 – NEXT TRIMESTER

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Session– (2 hours)

SUITS IN PARTICULAR CASES

A. SUITS BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS IN THEIR

OFFICIAL CAPACITY : sections 79 to 82; Order XXVII

• The authority to be named shall be the Union of India or the State

Government concerned-section 79.

• Mandatory Notice before suit –Section 80.

➢ It is mandatory to issue 2 months’ prior notice in writing before
institution of every suit against the Government or a public officer in
respect of any act purporting to be done by such public officer in his
official capacity. “Public Officer” is defined in section 2(17) of the Code.
➢ The 2 months shall be calculated from the date of delivery or the date
when it was left at the office of the concerned official.
➢ The notice should contain the cause of action, the name, description
and place of residence of the Plaintiff, and the relief which he claims.
➢ Further, the Plaint shall contain a statement that such a notice has
been delivered or left at the office of the Government official concerned.
➢ As to who the concerned official would be – see section 80.
➢ However, under section 80(2), if urgent or immediate relief is sought,
then suit can be instituted without the 2 months’ notice- provided the
leave of the court is obtained. But the court shall not grant any relief
whether interim or otherwise in such a case, except after giving notice
to the Government or public officer concerned.
➢ Failure to comply with section 80 will lead to rejection of the Plaint.
➢ If the Government or public officer concerned fails to object to the suit
instituted without complying with section 80, it would amount to
waiver of the requirement.

• The Government pleader in any court may receive processes against the
Government issued by any court- (Order 27 Rule 4). He need not file
Vakalath.
• Special provisions relating to exemption from arrest and personal appearance
of a public officer. Section 81.
• Special provisions relating to execution of a decree against Government or
public officer. Section 82.

B. SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO THE

INTERPRETATION OF THE CONSTITUTION OR AS TO THE VALIDITY OF
ANY STATUTORY INSTRUMENT : ORDER XXVII-A

• Any suit in which it appears to the Court that a question referred to in Article
132 read with Article 147 is involved, the Court cannot proceed unless
notice is given to Attorney- General (if the question concerns the Central
Government) or the Advocate – General (if the question concerns the State
Government). (Rule 1).
• If the suit involves a question as to the validity of any statutory instrument,
then the court cannot proceed without notice to the Government pleader or
the authority which issued the instrument. (Rule 1A)

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• Court may also implead the State or Central Government as a party. (Rule
2).

C. SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR AIRMEN : ORDER

28.
• If they cannot obtain leave they can authorize any person to sue or
defend for them (Rule 1).

D. SUITS BY OR AGAINST CORPORATIONS : ORDER 29

• Pleadings may be signed and verified on behalf of the corporation by
the secretary, any director or other principal officer of the corporation
who is able to depose to the facts of the case. (Rule 1).
• Service on a corporation can be effected by serving the secretary, or
any director, or other principal officer of the corporation or by leaving
the summons or sending it by post addressed to the corporation at the
registered office; if there is no registered office, then at the place where
it carries on business (Rule 2).

E. SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS

IN NAMES OTHER THAN THEIR OWN – ORDER 30
• Only the firm needs to be described in the cause title – and that would
amount to all the partners being parties to the suit, as per the law of
partnership. Any one of the partners may verify and sign the pleadings.
(Rule 1).
• The firm is bound to declare in court the names of all its partners.
(Rules 1 and 2).
• After the declaration, even though the suit may continue in the name
of the firm, the decree will contain the names of all the partners (Rule
2).

F. SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND ADMINISTRATORS

– Order 31
• If property is vested in a trustee, executor or administrator, where the
contention is between the person beneficially interested in such
property and a third person, the trustee, executor or administrator will
represent the persons beneficially interested and they need not be
made parties.

G. SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND –

Order 32

The next friend of the Plaintiff

• What is the procedure for institution of a suit on behalf of a minor?Order
32 Rule 1- the suit shall be instituted in his name by the next friend
of the minor. “Minor” defined in the explanation to Order 32 Rule 1.
• What is the effect of instituting a suit without the next friend? Order 32
Rule 2- the Defendant may apply to have the Plaint taken off the file
with costs payable by the pleader concerned.

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• The court may order the next friend to give security for the costs of the
Defendant. Rule 2A.
• The eligibility criteria for next friend: any person of sound mind,
attained majority, with no adverse interest and not an opponent party
in the suit; if there is already a guardian declared by competent
authority, then only such a person shall act as next friend unless the
court otherwise directs. Rule 4.
• Safeguards for the minor Plaintiff:
➢ If the minor has been prejudiced in the suit by virtue of the next
friend having an adverse interest in the subject-matter of the
suit, then decree may bet aside, but not otherwise. Rule 3A. (If
decree not set aside minor Plaintiff can sue next friend for
misconduct or gross negligence.)
➢ Every application to court shall be made by the next friend. Rule
5. If an order is passed in the suit without the minor being
represented, the order may be discharged, with costs payable
by the pleader.
➢ The next friend shall not receive money or other movable
property on behalf of the minor in a compromise or under a
decree or order in favour of the minor without the leave of the
court. Rule 6. (Court may require security to protect the
property).
➢ No next friend can enter into any compromise without the
express leave of the court recorded in the proceedings; an
application for leave shall be accompanied by an affidavit of the
next friend and by a certificate of the pleader to the effect that
the compromise is for the benefit of the minor; the court may
still examine whether the compromise is for the minor’s benefit;
any compromise entered into without the leave of the court shall
be voidable. Rule 7.
➢ Next may not retire without first procuring a fit person to be put
in his place and also furnishing security for the costs already
incurred. Rule 8. The application for appointment of a new next
friend shall be supported by an affidavit.
➢ Court may order next friend to be removed if there is adverse
interest, if he fails to do his duty, ceases to reside in India or for
any other sufficient cause and appoint a new person. Rule 9.
On the retirement, removal or death of the next friend further
proceedings shall remain stayed until a new next friend is
appointed.
• Course to be followed upon the minor Plaintiff attaining majority: He
shall elect whether he will proceed with the suit. If he elects to proceed,
he shall apply for an order discharging the next friend and to proceed
in his own name. If he elects to abandon the suit, he shall apply for an
order to dismiss the suit. Rule 12. If he is a co-plaintiff, he must apply
to repudiate the suit and have his name struck off as a co-plaintiff. The
sole-Plaintiff minor upon attaining majority may also apply that the
suit be dismissed on the ground that it was unreasonable or improper
– court may allow the application and court may order next friend to
pay costs. Rule 14.

The guardian of the Defendant

• The court shall appoint a guardian for the suit for a minor
defendant. Rule 3.

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 • Appointment of guardian for the minor for the suit shall be after
notice to any guardian appointed by a competent authority or
the father or mother or natural guardian. Rule 3.
• The guardian has to swear to an affidavit to the effect that he
has no interest in the matter in controversy adverse to that of
the minor and that he is a fit person to be so appointed. Rule
3.
• The eligibility criteria for guardian : any person of sound mind,
attained majority, with no adverse interest and not an opponent
party in the suit; if there is already a guardian declared by
competent authority, then only such a person shall act as
guardian unless the court otherwise directs; consent in writing
is necessary of the guardian. Rule 4.
• Safeguards for the minor Defendant:
➢ The guardian appointed shall continue as such in all
proceedings arising out of the suit including proceedings in any
Appellate or Revisional court and in execution proceedings.
Rule 3.
➢ If the minor has been prejudiced in the suit by virtue of the
guardian having an adverse interest in the subject-matter of the
suit, then decree may bet aside, but not otherwise. Rule 3A. (If
decree not set aside minor Defendant can sue next friend for
misconduct or gross negligence.)
➢ Every application to court shall be made by the guardian. Rule
5. If an order is passed in the suit without the minor being
represented, the order may be discharged, with costs payable
by the pleader.
• If there be no person fit and willing to act as guardian for the
minor Defendant, court may appoint one of its officers to act as
guardian. Rule 4.
• The guardian shall not receive money or other movable property
on behalf of the minor in a compromise or under a decree or
order in favour of the minor without the leave of the court. Rule
6. (Court may require security to protect the property).
• No guardian can enter into any compromise without the express
leave of the court recorded in the proceedings; an application
for leave shall be accompanied by an affidavit of the guardian
and by a certificate of the pleader to the effect that the
compromise is for the benefit of the minor; the court may still
examine whether the compromise is for the minor’s benefit; any
compromise entered into without the leave of the court shall be
voidable. Rule 7.
• Court may permit the guardian to retire or may even remove
him if he fails to do his duty and shall appoint a new guardian
in his place. Rule 11.

Persons of unsound mind

• Rules 1 to 14 (except Rule 2A) shall apply as far as may be, to
persons adjudged, before or during the pendency of the suit, to
be of unsound mind and shall also apply to persons though not
so adjudged to be found by the court to be incapable by reason
of any mental infirmity of protecting their own interest. Rule 15.

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H. SUITS RELATING TO MATTERS CONCERNING THE FAMILY – ORDER
32A
• To which proceedings the order applies- Order 32A Rule 1- to
suits or proceedings relating to matters concerning the family,
including suits for matrimonial reliefs, declaration of legitimacy,
guardianship suits, adoption suits, wills and intestacy and
succession, etc.
• Special rules: proceedings may be in camera(Rule 2); court has
a duty to make efforts for settlement (Rule 3); court may take
the assistance of a welfare expert (Rule 4).

I.SUITS BY INDIGENT PERSONS (Order 33)

• Who is an “indigent”? Order 33 Rule 1.
• Can a suit be filed by an indigent? Yes. Rule 1 is an enabling
provision.
• What is the special procedure to be adopted for the filing of suits
an indigent?
➢ Application seeking permission to sue as an indigent person
to be made containing the particulars required in regard to
plaints in suits; a schedule of property belonging to the
indigent shall be annexed thereto with an estimate of the
value; it shall be signed and verified like pleadings. Rule 2.
➢ The inquiry whether the applicant is indigent shall be made
in the first instance by the chief ministerial officer of the
court unless the court otherwise directs. Rule 1A.
➢ The application shall be presented by the applicant in person
to the Court unless exempted. Rule 3.
➢ The court will then examine the applicant on the application.
Rule 4.
➢ Court may reject the application at the threshold if the
application is not framed and presented in the manner
prescribed; where the court finds he is not an indigent;
where he has disposed of property fraudulently within 2
months from the date of the application; where the
allegations do not show a cause of action; if any other person
has obtained an interest in the subject-matter by virtue of
an agreement entered into by the applicant; if the suit is
barred by any law or where any other person has entered
into an agreement with him to finance the litigation. Rule 5.
However, if the court does not reject the application at the
threshold on any of these grounds, it shall fix a day for
receiving the evidence of the Plaintiff and the opposite party
and Government pleader too, after notice to them. Rule 6.
➢ After evidence, including the examination of witnesses, and
the hearing of arguments, the court shall either allow or
refuse to allow the application. Rule 7.
➢ Once the application is granted, it shall be deemed the Plaint
in the suit and the suit shall proceed in the ordinary manner
except that the Plaintiff shall not be liable to pay any court
fees or service fees. Rule 8.
➢ The Court may also assign a pleader to the indigent person
if he does not have one. Rule 9A.

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 • Can the court withdraw permission to sue as an indigent? Yes. If he is
guilty of improper or vexatious conduct in the course of the suit, if his
means are such that he should not be granted permission to sue an
indigent; or if he has entered into an agreement with regard to the
subject-matter giving any other person an interest therein. Rule 9.
• What happens when the suit ends? If Plaintiff wins, the court fees
payable shall be recoverable by the State Government from any party
ordered by the court to pay the same (Rule 10).If he loses, or
permission is withdrawn, or suit is dismissed for default, the Court
shall order the Plaintiff to pay the Court fees (Rule 11). If the suit has
abated by death of Plaintiff, then court shall order that the court fees
payable shall be recoverable by the state government from the estate
of the deceased. (Rule 11A).
• What are the rights of the State Government regarding Court Fees?
State Government has the right to apply for an order under Rules 10,
11 or 11A for payment of court fees (Rule 12). All matters between
the State Government and the parties shall be deemed to fall under
section 47 (Rule 13). Once an order is made for recovery, the Collector
shall recover as an arrear of land revenue. (Rule 14).
• If an application seeking leave to sue as an indigent is rejected, fresh
application is barred; but applicant can sue in the ordinary manner
subject to payment of the costs of the application failing which Plaint
shall be rejected. Rule 15.
• Court has power to grant time for payment of court fees. Rule 15A.
Upon such paymentsuit deemed to be instituted on the date on which
application filed.
• Defence by an indigent by way of set-off or counter-claim – same
procedure. Rule 17.
• Power of Government to provide free legal services to indigent persons.
Rule 18.

J. SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

(Order 34)
• What are the different types of reliefs that parties to a mortgage
transaction might seek from the civil court?
• What procedures would apply to each type of suit?

K. INTERPLEADER SUITS (Order 35)

• What is an interpleader suit?
• What are the matters to be stated in the Plaint in an Interpleader
suit? (Rule 1)
• What procedure can be adopted in Interpleader suits at the first
hearing to discharge the Plaintiff? Rule 4.

L. Friendly suits (Section 90, Order 36)

• What is the procedure for stating a case for the court’s opinion?
Parties should enter into an agreement in writing with the proposed
relief (Rule 1). The parties shall also mention the estimated value
of the property in the agreement.

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 • The agreement shall be filed and registered as a suit (Rule 3) and
shall be heard like a regular suit (Rule 5). Thereupon judgment will
be pronounced and a decree will follow.
• No appeal can be filed against the decree as per Rule 6.

M. Suits relating to public nuisance (Section 91)

• What are the essential ingredients of a suit under section 91 of the
Code?

N. Suits relating to public charities (Section 92)

• What are the essential elements of a suit under section 92 of the
Code?

O. Summary suits (Order 37)

• To which classes of suits does the summary procedure under Order
37 apply? Rule 1(2).
• What are the procedural requirements for filing a summary suit?
Rule 2: Plaint to contain specific averment that suit is filed under
Order 37, that no relief has been claimed outside the ambit of Order
37 and an appropriate inscription.
• What are the distinguishing features of summary suits?
➢ The defendant has no right to defend the suit but must
appear and seek leave to defend the suit. Only if such leave
is granted the suit will be heard in the ordinary manner.
➢ If there is default on the part of the Defendant in entering
appearance the Plaintiff shall be entitled to a decree
forthwith (Rule 2(3)).
➢ After appearance of the Defendant, Plaintiff shall serve a
summons for judgment in Form No. 4A in Appendix B stating
that there is no defence to the suit. The Defendant may,
within 10 days from the service of such summons, apply for
leave to defend the suit by swearing to an affidavit. Only if
the court is satisfied that he has a substantial defence and
that it is not frivolous or vexatious it may grant leave. (Rule
3(5)).
➢ Thereupon the court may direct the Defendant to give
security for the suit. Rule 3(6).
➢ The court however has the discretion to excuse delay in
entering appearance or in applying for leave. (Rule 3(7)).
➢ If a decree has already been passed then under special
circumstances, the court is empowered to set aside its own
decree and stay execution and grant leave to the Defendant
to defend. (Rule 4).

BASIC READING
• Sections 79 to 82, 90, 91, 92 and Orders XXVII to XXXVII of CPC, 1908

ADDITIONAL READING

Takwani Part 2, Chapter 16

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WEEK

Session– (2 hours)

MISCELLANEOUS PROVISIONS IN THE CODE

I. EXEMPTIONS FROM APPEARANCE AND ARREST UNDER THE

CODE- Sections 132 to 135A
• Can a woman who, according to the customs and manners of the
country ought not to be compelled to appear in public be
compelled to attend court? Section 132. Can such a person be
arrested in execution of civil process?
• Who are the other persons exempt from personal appearance in
court? Section 133. How can such persons be examined?
• Which persons are exempt from arrest under civil process and
when exactly are they exempt? Sections 135 and 135A.

J. PROCEDURE WHERE PERSON TO BE ARRESTED OR PROPERTY

TO BE ATTACHED IS OUTSIDE THE JURISDICTION-section 136.
• Does section 136 apply to arrest and attachment during
execution proceedings?

K. LANGUAGE OF SUBORDINATE COURTS – SECTIONS 137 AND 138.

L. OATH ON AFFIDAVIT BY WHOM TO BE ADMINISTERED – SECTION

139.

M. ASSESSORS IN CAUSES OF SALVAGE, ETC. – SECTION 140.

N. MISCELLANOUS PROCEEDINGS- SECTION 141

• Does the procedure contemplated in the Code in relation to suits

apply in writ proceedings?

O. ORDERS AND NOTICES TO BE IN WRITING- SECTION 142

P. POSTAGE-SECTION 143

Q. RESTITUTION – SECTION 144.

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 • What is “restitution”? Even though not defined in the Code, it
means restoring a party the benefit which the other party has
received under a decree subsequently held to be wrong.
• Based on the principle actus curiae neminemgravabit– the act of
the court shall harm no one. An equitable principle. It is the
bounden duty of the court to see that if a person is harmed by a
mistake of the court he should be restored to the position he
would have occupied but for that mistake.
• Note the definition of “decree” in section 2(2).
• What are the pre-conditions for an order of restitution? Before
which courts can such applications be made? What is the aim of
restitution? What is the scope of orders that can be passed in
restitution?
• Does a suit lie to obtain restitution?

R. CONSENT OR AGREEMENT BY PERSONS UNDER DISABILITY –

SECTION 147.

S. ENLARGEMENT OF TIME – SECTION 148.

• Under what circumstances can the court enlarge the time given
for a particular act to be done?

L.CAVEAT – section 148A

• What is a “caveat”? A caveat is an entry made in the books of the
offices of a registry or court to prevent a certain step being taken
without previous notice to the person entering the caveat.
• When can it be lodged? What is the procedure for lodging a
caveat?
• What does a caveat entitle the caveator to?
• What procedure should be adopted if an application is made in
a matter where caveat has been lodged?
• What is the effect of hearing and allowing an application without
the caveator being notified?

T. POWER TO MAKEUP DEFICIENCY OF COURT FEES- SECTION 149.

U. TRANSFER OF BUSINESS – SECTION 150.

V. SAVING OF INHERENT POWERS OF THE COURT – SECTION 151.

• What are “inherent” powers? Why is there a need to make

reference to them?
• Are inherent powers conferred on the civil court by section 151?

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 • Which provisions of the Code relate to inherent powers?
Sections 148, 149, 151, 152, 153, 153A.
• Examples of situations where section 151 has been invoked:
temporary injunctions not covered by Order 39, clubbing of
suits, directions for in camera proceedings, etc.
• Padam Sen vs State of Uttar Pradesh AIR 1961 SC 218.

W. Amendments of judgments, decrees or orders – section 152.

• What types of mistakes can be corrected under section 152?

X. General power to amend- section 153

• What types of amendments may be made under section 153?

Y. Power to amend decree or order where appeal summarily

dismissed- section 153A
• What was the need for section 153A and when does it specifically
apply?

Z. Place of trial deemed to be open court- section 153B

BASIC READING
• Sections 132 to 144, 147 to 153B of CPC, 1908;
• Padam Sen vs State of Uttar Pradesh AIR 1961 SC 218

ADDITIONAL READING
Takwani Part 5, Chapters 2,3,4.

WEEK

Sessions– ( 4 hours)

APPEALS UNDER THE CODE

FIRST APPEALS FROM DECREES

1. Basic principles

• Which provisions of the Code relate to First Appeals from

decrees?Sections 96 to 99A, 107 to 108 and Order 41.
• Does an appeal lie as a matter of right from every decree passed by a
civil court? Yes – under section 96, subject to the pecuniary limit under
section 96 (4). This is unlike appeals from orders, wherein appeals will
lie only if expressly mentioned in the Code.
• What is an “appeal”? There is no definition of “appeal” under the Code
but any application by a party to an appellate court asking it to set
aside or revise the decision of a subordinate court is an appeal. It could

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 also be defined as the judicial examination of a decision of an inferior
court by a higher court.
• Why is it said that an appeal is a continuation of the suit? The appellate
court generally has the powers of the subordinate court and re-hears
the matter.
• Does an appeal lie against a judgment of the trial court? Under section
96, appeals are provided only against every decree of the court
exercising original jurisdiction. But this is a grey area, especially in
view of Order 41 Rule 22 which enables a cross-objector to prefer
objections even against any findings of a trial court.
• If an original decree is passed ex parte, does an appeal lie? Yes, section
96(2).
• If a decree is passed with the consent of the parties, can an appeal lie?
Only if the very factum of compromise or consent is questioned, an
appeal will lie. BanwariLal vs Chando Devi (1993) 1 SCC 581.
• Can grounds against a preliminary decree be raised in an appeal against
the final decree? No. Section 97.
• What is the procedure to be followed when an appeal is heard by a
Bench of 2 or more judges?Section 98.
• Who can appeal against a decree? The parties, and with the leave of the
court (through an application), any person aggrieved by the decree.
• Can a decree be reversed on technical pleas such as misjoinder of parties
or causes of action and irregularities in procedure? Only if it is
established before the appellate court that it has affected the merits of
the case or the jurisdiction of the court. Section 99.
• What is the doctrine of merger? Once the appellate court has passed a
decree, the decree of the trial court merges with the decree of the
appellate court leaving only 1 executable decree.
• What is the manner of preferring an appeal?Order 41 Rule 1 – every
appeal shall be preferred in the form of a Memorandum signed by the
appellant or his pleader and presented to the Court or such officer as
it appoints.
• What is the difference in nomenclature insofar as an “appeal” and a
“memorandum of appeal” are concerned? An appeal is the judicial
examination of the decision of the lower court whereas the
Memorandum of Appeal is the document containing the grounds upon
which the judicial examination is invited.
• What is the date of filing of an appeal? The date of receipt of the
Memorandum of Appeal – this date will be taken into account for
limitation purposes.
• What is the mandatory requirement relating to money decrees?
Appellant must deposit the disputed amount or furnish security within
the time specified by the Appellate Court.

2. Memorandum of appeal

• What should the Memorandum of Appeal contain? Under Order 41 Rule

1 (2), the grounds of objection to the decree appealed from shall be set

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 forth concisely and under distinct heads, without any argument or
narrative.
• What are the rules relating to urging grounds not taken in the
Memorandum of Appeal? Appellant shall not, except by leave of the
court, be heard on any objection not set forth in the memorandum; but
this does not hamper the power of the appellate court to decide the
appeal on any ground/objection not taken in the memorandum
provided that the party affected is given an opportunity of contesting
the case on that ground. Order 41 Rule 2.
• Memorandum of appeal may be rejected or returned for amendment if
not drawn up in the manner prescribed. Rule 3.

3. Delay at appellate stage

• What procedure should be adopted if the appeal is barred by time? An

application for condonation of delay supported by affidavit showing
sufficient cause should be filed with the appeal. The court may reject
the application and dismiss the appeal or issue notice on the
application to the Respondent. Delay shall be condoned first before the
appeal is taken up for admission. Nor can stay be granted of the decree
until the delay is condoned and the appeal admitted. Rule 3A.

4. Power of appellate court to grant relief to all

• One of the parties may obtain reversal or variation of the decree for all
the parties where the ground of appeal is common to all the parties.
But this is the discretion of the appellate court. Order 41 Rule 4.

5. Stay of execution

• What are the rules relating to grant of stay of execution of a decree? Mere
filing of an appeal does not operate as stay. But appellate court may
stay execution for sufficient cause. The stay order will be effective from
the date of communication of such order to the court of first instance.
(see Explanation to Rule 5) The court passing the decree may also
stay execution. The parameters for exercise of discretion for grant of
stay are: substantial loss to appellant being caused; application made
without unreasonable delay and that security has been furnished by
the appellant for due performance of the decree. Rule 5.Note that Rule
6(2) states that where an order has been made for the sale of
immovable property in the execution of a decree and an appeal is
pending from such decree, the sale shall, on the application of the
judgment debtor, be stayed on terms regarding security.

6. Stages of hearing an appeal

• What are the different stages before an appellate court for the hearing of
the appeal?There is an admission stage and a final hearing stage. At

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 the admission stage, the appellate court may dismiss the appeal at the
threshold after hearing the appellant without issuing notice to the
other side if no prima facie case is made out. However, even if the
appeal is dismissed at this stage, the appellate court shall deliver a
judgment recording in brief its reasons for so doing and a decree shall
then be drawn up. (Rule 11).Under Rule 11A the admission stage
should be concluded within 60 days from filing. However, if the
appellate court decides to hear the appeal and admits it, then it shall
fix a day for the hearing of the appeal (Rule 12), ensure service of notice
to the Respondent (Rule 14), and then hear the matter after
Respondent is served (Rule 17).

7. Other Rules at Appellate Stage

• What is the Register of Appeal? Rule 9.

• How is the Respondent served at the appellate stage? In the same
manner as service on a Defendant of a summons. The appellate court
may send the notice to be served to the lower court or itself cause the
notice to be served. Rule 14.
• Can the appellate court require the appellant to furnish security for
costs?Yes, Rule 10.
• Who has the right to begin arguments at the appellate stage? Rule16.
• Default at appellate stage.Appeal may be dismissed for non-appearance
in which case the appellant must apply under Rule 19 for re-admission
of the appeal dismissed under Rules 11 or 17and show sufficient
cause. However, once the appeal is admitted, Rule 17 bars the
dismissal of the appeal on merits. If an ex parte decree is passed
against the Respondent, he must apply under Rule 21for re-hearing.
• Appellate court may direct impleadment of a party not impleaded in the
appeal.Rule 20.

8. Cross-appeals and cross-objections

• What is the privilege granted with regard to a respondent at appellate

stage? Respondent may, even though he has not preferred an appeal,
support the decree and argue that some finding should have been in
his favour. He may also file cross-objections within 1 month from the
date of service of notice of day fixed for hearing the appeal, even raising
objections regarding findings against him in the judgment. Rule 22.
This is anomalous when contrasted with the right of an appellant under
section 96. Even if the original appeal is withdrawn or dismissed for
default, the objections will be heard.

9. Remand by the appellate court

• Under what circumstances can the appellate court remand a matter?

Where the appellate court reverses decree on a preliminary point the

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 appellate court may by order, remand the case (Rule 23), or, if the
appellate court considers that a re-trial is necessary, it may remand
the case under Rule 23A.
• What are the other procedures that may be adopted by the appellate
court? Where evidence on record is sufficient, the appellate court, after
re-settling issues may finally determine the suit. Rule 24. If the lower
court has omitted to frame an issue or try an issue, or determine any
question of fact, the appellate court may frame issues and refer the
same for trial to the lower court. The lower court shall try such issues
and return the evidence to the appellate court together with its findings
thereon and the reasons thereof. Rule 25. See also Rules 26 and 26A.

10. Production of additional evidence in appellate court

• Is any party entitled, as a matter of right, to produce additional evidence

at the appellate stage? No. Only if the pre-conditions mentioned in
Order 41 Rule 27 are satisfied, additional evidence be permitted.
• Procedure for taking additional evidence. Rules 27(2), 28 and 29.

11. Judgment and decree in appeal

• What are the requirements to be followed by a judgment in appeal? It

should be pronounced in open court and a copy shall be made available
immediately after the judgment is pronounced. Rule 30. The judgment
shall be in writing and shall state the points for determination, the
decision thereon, the reasons for the decision and the relief to which
the appellant is entitled and shall be signed and dated by the judge.
Rule 31. These requirements are mandatory and failure to comply will
result in reversal at SLP stage – Kanailal vs Ram Chandra Singh
(2018) 13 SCC 715.
• What may the judgment direct? The judgment may confirm, vary or
reverse the decree or substitute a consent/compromise decree in place
of the decree of the lower court. Rule 32.
• Powers of appellate court to pass any decree or make any order even if
appeal against part of decree or by some of the parties. Rule 33.
• Dissent to be in writing with reasons.Rule 34.
• What are the requirements of a decree in appeal?Rule 35.

12. General provisions relating to powers of appellate courts

• The appellate court shall have the same powers and duties as courts
of original jurisdiction (sections 107, 108).

BASIC READING
• Sections 96 to 99A, 107 to 108 and Order XLI of CPC, 1908;
• BanwariLal vs Chando Devi (1993) 1 SCC 581;

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 • Kanailal vs Ram Chandra Singh (2018) 13 SCC 715

WEEK

Session– (2 hours)

SECOND APPEALS

Basic principles

• Which provisions of the Code relate to Second Appeals from

decrees?Sections 100 to 103, 107 to 108 and Order 42.
• Does an appeal lie as a matter of right from every decree passed in
appeal? No– under sections100 and 101, an appeal shall lie to the
High Court from every decree passed in appeal by any court
subordinate to a High Court if the High Court is satisfied that the case
involves a substantial question of law, subject to the pecuniary limit in
section 102. The memorandum of appeal shall precisely state this
question; the High Court shall admit the appeal only by framing such
a question and further, the appeal shall be heard only on the question
so formulated.
• Can there be cases where there is no second appeal?Under section
100A, where an appeal from an original or appellate decree is heard by
and decided by a single judge of a High Court, no further appeal shall
lie.
• What is a “substantial question of law”? Chunilal V. Mehta and Sons
Ltd vs Century Spinning and Manufacturing Co Ltd AIR 1962 SC
1314- the considerations would include- whether it directly and
substantially affects the rights of the parties; whether it is of general
importance; whether it is an open legal question unsettled by judicial
dicta; no universal rule- depends on the facts and circumstances of
each case. The Law Commission 54th Report however, suggested that
it should not be limited to questions of general importance.
• Does the second appellate court nonetheless have some power to enter
upon factual issues?Section 103- any issue not determined by the
lower courts if evidence on record is sufficient may be decided and any
issue which has wrongly been decided as a consequence of a decision
on a question of law referred to in section 100 may be determined.

BASIC READING
• Sections 100 to 103, 107 to 108 and Order XLII of CPC, 1908;
• Chunilal V. Mehta and Sons Ltd vs Century Spinning and
Manufacturing Co Ltd AIR 1962 SC 1314

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 APPEALS FROM ORDERS

Principles

• Which provisions of the Code relate to appeals from orders?Sections

104 to 106, 107 to 108 and Order 43.
• Does an appeal lie as a matter of right from every order passed? No–
under section 104, an appeal shall lie only from the orders mentioned
therein and the orders against which appeal is expressly allowed by the
Rules. Thus, section 104 would need to be read with Order 43 Rule
1 to determine if an appeal lies in a given case against an order.
• Can there be a second appeal in the case of orders?No – section 104
(2) bars it.
• If no appeal is provided by the Rules or section 104 from an order, how
can it be assailed? File a writ under Article 227 or raise this as a
ground in an appeal from the decree under section 105. However this
does not apply to orders passed in remand.
• Which court will hear an appeal from an order? The court to which an
appeal would lie from the decree in the suit (section 106).

BASIC READING
• Sections 104 to 106, 107 to 108 and Order XLIII of CPC, 1908
• Chunilal V. Mehta and Sons Ltd vs Century Spinning and
Manufacturing Co Ltd AIR 1962 SC 1314-

WEEK

Session– (2 hours)

APPEALS TO THE SUPREME COURT

Principles

• Which provisions of the Code relate to appeals to the Supreme Court?

Sections 109, 112 and 107 to 108 and Order 45.
• Does an appeal lie as a matter of right to the Supreme Court? No – in
civil matters persons can approach the Supreme Court under Articles
132 (certificate appeal where High Court certifies that the case involves
a substantial question of law as to the interpretation of the
constitution); under Article 133 (if High Court certifies that the case
involves a substantial question of law of general importance and that
the said question needs to be decided by the Supreme Court); and
under Article 136 (SLPs).
• Which other rules govern appeals to the Supreme Court? The Supreme
Court Rules made under Article 145 that override the provisions of
the Code in case of inconsistency. Section 112.

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 • What is the procedure to prefer a certificate appeal on the civil side to the
Supreme Court under Article 133? The procedure is laid out in Order
45. Application needs to be made by petition stating the grounds of
appeal and praying for a certificate (Rule 3). Thereupon notice shall be
served on the opposite side (Rule 3). Upon grant of certificate, the High
Court shall require security for costs from the applicant, require
deposit of amount for preparing and transmitting the paper-book,
declare the appeal admitted, transmit the record to the Supreme Court
and furnish copies of the paper-book to the parties. Rules 7 and 8.
The High Court may also stay the execution of the decree (Rule 13).
• What is the procedure to enforce orders of the Supreme Court? Order 45
Rule 15.

BASIC READING

• Sections 109, 112 and 107 to 108 and Order XLV of CPC, 1908;
• Articles 132, 133, 136 and 145 of the Constitution of India

WEEK

Session– (2 hours)
REFERENCE

• Which provisions of the Code relate to Reference?Section 113 and

Order 46.
• When can a reference be made?Any court wherein the decree is not
subject to an appeal, maysuomotu or on the application of the parties
may make a reference on any question of law to the High Court (section
113 read with Order 46 Rule 1). In some situations reference is
compulsory – proviso to section 113.
• What is the procedure for a reference?See rules 1 to 5.

REVIEW
• Which provisions of the Code relate to Review? Section 114 and Order
47.
• What is a “review”? It is a judicial re-examination of the case by the
same court and by the same judge.
• When can review jurisdiction be exercised?A person aggrieved by a
decree or order from which no appeal is allowed or from which no
appeal has been preferred though allowed or by a decision on a
reference from a Court of Small Causes who discovers new or important
matter or evidence that was not within his knowledge or could not have
been produced in spite of due diligence earlier or on account of some
mistake or error apparent on the face of the record or for any other
sufficient reason, may apply for review to the Court which passed the
decree or made the order. Order 47 Rule 1.Further, if an appeal has
been preferred by another party on the same ground, he cannot seek
review but must approach the appellate court.

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 • Is the principle of ejusdem generis applicable to the phrase “any other
sufficient reason”?
• What is the form to be used for review? Same form as appeals (rule 3).
• What is the procedure for a review?See rules 4 to 9. Notice should be
given to the opponent. An order of rejection is not appealable. Further,
review of order passed in review is impermissible.

REVISION
• Which provisions of the Code relate to Revision? Section 115.
• What is the rationale for revisional jurisdiction?
• What are the pre-conditions for its exercise?
• Have amendments to section 115 rendered revisonal jurisdiction
redundant?

BASIC READING
• Sections 113 to 115 and Order XLVI to XLVII.

Any other information

For instance project guidelines, resources etc

➢ Additional Resources (Indicative only)

1. The Code of Civil Procedure (as amended by act No. 46 of 1999) Vol. I & II
by B.V. VishwanathaAiyer, 2000.
2. Code of Civil Procedure: Act V of 1908 Vol. I to IV by Mulla D F, 2002.
3. Code of Civil Procedure (as amended by CPC (Amendment) Act, 1999 and
CPC (Amendment) Act, 2002) Vol. I & II, by Sudipto Sarkar &Manohar V R,
2002.
4. Code of Civil Procedure by Thakker C K &Thakker M C, 2000.
5. On Civil Procedure by JA Jolowicz, Cambridge University Press, 2000.
6. A Treatise on the Anglo-American System of Evidence in Trials at Common
Law, by John Henry Wigmore, Third Edition, Little, Brown and Co, Boston,
1940.
7. The following Law Commission of India Reports: 14th, 27th, 54th, 69th, 74th,
77th, 79th, 114th, 120th, 124th, 125th, 131st, 139th, 140th, 144th, 150th, 163rd,
178th, 185th.
8. Report of the Committee on Reforms of Criminal Justice System, Volume
1, March 2003.
9. Report of the Arrears Committee, 1989-1990.

➢ PROJECT GUIDELINES

➢ Students will be automatically assigned topics from the list provided.

➢ Students must follow the mandated guidelines relating to word limits, etc.
➢ Regarding case-law: The facts of all cases referred to in the projects should
be mentioned in footnotes unless a passing mention is made of a case. If a

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 case is referred to in passing, this should be clearly indicated in the footnote
as “in passing”.
➢ Regarding Articles: A summary of any article referred to in the projects
should be mentioned in footnotes unless a passing mention is made. If an
article is referred to in passing, this should be clearly indicated in the
footnote as “in passing”.
➢ Students will be asked questions on the references given and so should only
include references that they have actually read thoroughly.
➢ With regard to all the topics generally, students might benefit from the
following sequence of work: identify the relevant statutory rules and read
them thoroughly; then go through the case-law starting with the Supreme
Court cases; identify interpretive issues that arise and see whether these
have been answered. The goal is to arrive at the principles underlying that
area of law. If there is an area of interpretive doubt, explore this further
through case-law. You could also look at the utility of the rules in question;
how the Law Commission has dealt with them; compare and contrast with
similar rules in other jurisdictions; and finally critically evaluate the rules
with a view to reform.
➢ You are welcome to study underlying premises, assumptions and objectives
of the black-letter law.
➢ Students are required to strictly follow the relevant UGC and University
guidelines relating to the manner of quoting and using the works of others.
Any projects indicating plagiarism as per Turnitin or other applications will
be referred as a matter of course for disciplinary action.

Guidelines to students
Instructions for class preparation etc

➢ CLASSROOM RULES AND PROTOCOLS

• All students are expected to be fully ready with their study of the basic
course materials for the class; any student may be asked to answer
questions in class, in addition to the students leading the discussion for
that day. Students unable to answer basic questions due to lack of
preparation will be marked absent and may also lose marks for non-
responsiveness.
• This is a course that relies heavily on classroom discussions to raise the
level of engagement and study. Each and every student in the class will be
expected to contribute to classroom interaction – whether by way of
agreement, opposition or neutral ruminations.
• The teaching assistant/ course teacher will maintain careful spreadsheets
of your performance in each class; all interventions- whether to clarify,
question or answer will be noted and will be taken into account whilst
awarding the mark for voluntary classroom participation.
• It is prohibited to use mobile phones, chat with each other through other
apps, or generally conduct oneself in a manner that is non-responsive,
during classes.
• The Course Teacher would be writing emails to you throughout the course.
These form a part of the course and students are bound to read them and
are also welcome to engage with the ideas expressed therein through email.

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• Students having special needs of any kind must contact the Course
Teacher/ Teacher Assistant within the first week of the course so that they
may make suitable adjustments and arrangements, if necessary.

➢ USAGE OF HANDOUTS
• The course teacher asserts his intellectual rights over the handouts, course
template, and outline. You may only use the same for the purposes of this
course of study at NLSIU. Any unauthorized use, including commercial
usage of the same, is prohibited.

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