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 CONTENTS

· Introduction xi

CHAPTER 1

DEFINITIONS

¨ Decree [Section 2(2)] 1

Q. What does the word 'Decree' mean? 1

· Essential Elements 2

Q. Explain the essential elements of decree with illustrations. 2

· When 'Decree' is said to be Nullity 5

· Decrees: Types of 5

(1) Preliminary Decree 5

Q. Explain the types of Decree. And what is 'preliminary decree'? 5

(2) Final Decree 6

Q. In what way a decree can be said to be final one? 6

· Distinction between 'Preliminary' and 'Final' Decree 7

(3) 'Partly Preliminary' and 'Partly Final' Decree 7

Q. How can you distinguish preliminary' and 'final' decree with the help of 7
case law?

· Rejection of Plaint 7

· Appealable Orders 8

· Order of Dismissal for Default 8

¨ Judgment [Section 2(9)] 9

Q. What does the word 'Judgment' mean? 9

· Lakshmi Ram Bhuyan case 10

· Words "Judgment" and "Decree": Distinction 12

Q . Explain the major distinction between the words 'judgment' and 12

'decree'.

¨ judgment-Debtor [Section 2(10)] 12

Q. What does the expression 'Judgment-Debtor' mean? 12

¨ Foreign Judgment [Section 2(6)] 12

Q. What is the meaning of foreign judgment'? Can it be significant in a 12

similar case in India? Explain with the help of relevant case laws.

¨ Foreign Judgment not by Competent Court 13

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 Q. When X sues Y in a foreign court and the suit is dismissed; will this 13
decision shall operate as 'res judicata' on a fresh suit by X against Y in
India on the same cause-of- action?

· Bharat Nidhi Ltd. case 14

· Foreign Judgment not on merits 15

· Foreign Judgment against International and Indian Law 15

· Foreign Judgment obtained by Fraud 15

Q. Can a 'mistake of law' in a foreign judgment can be a ground to vacate 15

a same suit in India?

· Foreign Judgment opposed to Natural Justice 16

· Foreign Judgment founded on breach of Indian Law 16

Q. What is the effect of a 'foreign judgment' when it is founded on breach 16

of Indian law?

· Presumption as to Foreign Judgment 17

· Enforcement of Foreign Judgments 17

· When foreign judgment not conclusive 17

¨ Order [Section 2(14)] 17

Q. Explain briefly the word 'Order' in an adjudication of a court. 17

· 'Orders' which amount to a Decree 17

Q. When an 'Order' amounts to 'Decree? 17

· Orders which do not amount to a Decree 18

· Similarities between 'Order' and 'Decree' 18

Q. What are the similarities between words 'Order' and 'Decree'? 18

· Distinction between 'Order' and 'Decree' 18

Q. Explain the distinction between 'Order' and 'Decree'. 19

¨ Legal Representative [Section 2(11)] 19

Q. Whom you call a 'legal representative' under the provision of C.P.C., 20

1908?

· Decree against wrong Legal Representative 20

Q. When a true legal representative will be bound by a decree passed 20

against the wrong legal representation? Explain.

· Banco National case 21

Q. What are the ratio laid down by the Supreme Court in Banco National 21
case, MANU/SC/0149/1989 : AIR 1989 SC 1589?

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 · Mithailal Singh case 22
· Shahzadabi case 23

¨ Mesne Profits [Section 2(12)] 24

Q. What do you mean by expression 'mesne profits"? Explain the object 24

behind awarding such profits with the help of case laws.

· Object behind awarding such Profits 25

· Measure of Mesne Profits 25

Q. How mesne profit can be measured with the help of ratio laid down by 25
the Supreme Court in Lucy Kochuvareed case, AIR 1979 SC 1214?

· Lucy Kochuvarred case 25

· Amina Beevi case 26

CHAPTER 2

INHERENT POWERS OF THE COURT

Q. What do you understand by inherent powers of court? Discuss scope 27

and extent of inherent powers?

· Enlargement of Time - Section 148 28

Q. What are the conditions to be followed by a court for the enlargement 28

of time?

· Payment of Court-fees - Section 149 29

· Inherent Power under section 151 vis-a-vis Ends of Justice 29

· Section 152 30

· Section 153 31

· Section 153A 31

· Limitations of Inherent Powers 32

Q What is the limitation of inherent powers of the courts? Explain with the 32
help of case laws.

· Ram Chand Sugar Mill case 33

· Mental Health case 34

CHAPTER 3

JURISDICTION OF CIVIL COURTS

· Meaning 35

Q. What is the meaning of the word 'jurisdiction'? 35

· Section 9 of the Code of Civil Procedure, 1908 and meaning of Suits of 36

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 Civil Nature

· Suits of Civil Nature - Illustrations 37

· Not of Civil Nature 37

¨ Kinds of Jurisdiction 37

Q. Explain the kinds of jurisdiction of a court. 38

Q. Whether the following suits are cognizable by civil court? 40

(a) Suit for exclusion of member from caste. 40

(b) Suit to set aside the election of directors. 40

(c) Suit relating to caste property. 40

(d) Proceeding for dissolution of Muslim Marriage. 40

CHAPTER 4

RES SUBJUDICE AND RES JUDICATA

¨ Res Subjudice: Stay of Suit 45

Q. What to you mean by the expression 'res subjudice?? 45

Q. What are the objects behind the provision of 'res subjudice'? 46

Q. Explain the essential conditions to be satisfied for the applicability of 46

section 10, C.P.C.

¨ Doctrine of Res Judicata: Section 11 49

Q. Explain the doctrine of 'res judicata' with the help of case laws. 49

Q. Discuss the scope and amplitude of section 11, CPC. 50

· Nabin Majhi case 51

· Constructive Res Judicata 53

Q. What do you mean by term 'constructive res judicata?? 53

CHAPTERS 5

AMENDMENT OF PLEADINGS, ETC.

Q. Whether a party to the suit can alter or amend his pleadings? Till what 55
stage a court can allow such amendments?

¨ Leave to Amend.--When could/may be granted 56

¨ Leave to Amend when to be Refused 57

Q. When a court may refuse leave to amend the pleadings? 57

¨ Meaning of term "at any stage" 58

Q. Explain the meaning and extent of expression 'at any stage' provided 58

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 under Order VI, rule 17, CPC.

¨ Revision 58

¨ Suit by Indigent Persons, or Suit in forma pauperis (Order XXXIII) 62

Q. Can an indigent person be allowed to file a suit where he has no money 62

to pay for the requisite court-fee? Explain.

¨ Appearance and Non-appearance of Parties (Order IX, rules 1 to 3) 65

Q . Discuss the effects and consequences of appearance and non- 65

appearance of parties in a suit

Q. What do you mean by ex parte decree? Does the law provide for its 66
remedy?

Q. Whether respondent at the stage of appeal can be allowed to amend 68

his pleadings necessitated by subsequent events as per Order VI, rule 17,
CPC?

CHAPTER 6

JOINDER OF PARTIES, ETC.

¨ Institution of Suit: Order IV 71

¨ Parties to the Suit - Order I 71

¨ Joinder of Defendants - Order I, rule 3 72

Q. Differentiate between necessary and proper parties. Discuss effect of 72

non-joinder of necessary party or proper party.

¨ Mis-joinder or non-joinder of parties (Order I, rule 9) 72

¨ Striking Out, Adding or Substituting Parties - Rule 10 73

¨ 'Necessary party' and 'Proper party': Distinction 75

¨ Representative Suit (Order I, rule 8) 75

Q. What do you mean by 'representative suit'? 76

CHAPTER 7

SPECIAL SUITS

¨ Suits by or against minors, lunatic, public officers, etc. 77

· Suits by or Against Minors and Lunatics: Order XXXII 77

Q. Write short note on 'suit by or against minors or persons of unsound 77

mind'.

· Filing or Defending of Suit on Minor's Behalf (Order XXXII, Rules 1-14) 77

· Qualifications as to be a Guardian or Next Friend 78

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 · Power and Duties of a Guardian/Next Friend (Rules 5-7) 78
· Retirement, Removal or Death of such Guardian/Next Friend (Rules 8- 78
11)

· Minor Attaining Majority (Rules 12-14) 79

¨ Suits by or against Government or Public Officers: Sections 79-82: 80

Order XXVII

Q. Write short note on 'notice under section 80, CPC' 81

¨ Interpleader suit (Section 88 and Order XXXV) 83

Q. What do you mean by 'interpleader suit'? 83

· Conditions to Institute Interpleader Suit 84

· Procedure 84

· Who cannot File Interpleader Suit (Order XXXV, rule 5) 85

CHAPTER 8

APPOINTMENT OF RECEIVERS (ORDER XL)

Q. Write short note on 'receiver'. 86

· Appointment of Commissions (Sections 75-78, Order XXVI) 89

Q. Write short note on 'Appointment of Commissions'. 89

· Appointment of Commissioner under Inherent Powers 91

CHAPTER 9

SUMMARY PROCEDURE (ORDER XXXVII)

· Applicability 92

Q. What do you mean by 'summary suit'? 92

· Difference between Summary Suit and Ordinary Suit 92

· Procedure 93

Q. Whether leave to defend can be claimed as a matter of right under 93

Order XXXVII, CPC? Discuss with the help of decided cases.

· Test(s) for Granting Leave to Defend 94

Q. State the procedure for institution of suits, appearance of defendant 94

and filing of leave to defend under Order XXXVII of CPC.

CHAPTER 10

TEMPORARY INJUNCTION (ORDER XXXIX)

Q. What are the principles to be followed for grant of interim injunction? 100

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 · Where Temporary Injunction is Granted 101

· Conditions for grant of Temporary injunctions 101

· Principles Governing Temporary Injunction 102

· Non-compliance or Breach of Injunction 102

Q. What are consequences of disobedience or breach of injunction? 102

· Ex parte Ad Interim Injunction (rule 3 of Order XXXIX) 104

Q. What are the principles for grant of 'ex parte ad-interim injunction' 105
under CPC?

¨ Case Laws 106

¨ Appeals 111

Q. Discuss the purpose of 'appeal'. What are the essential ingredients of 111
an appeal?

· Essential Ingredients of an Appeal 111

· Nature of Right of Appeal 112

Q. Discuss the nature of right of appeal. 112

· Who may File an Appeal? 113

· Maintainability of Appeal 113

¨ Second Appeals 114

Q. When a second appeal' is maintainable before the High Court? 114

· When Second Appeal does not Lie? 116

· No Interference with Finding of Facts 116

Q. Whether High Court can interfere with the findings of facts in a second 116
appeal?

· Substantial Question of Law 117

Q. What do you mean by expression 'substantial question of law'? 117

Q. Discuss the conditions when second appeal does not lie? 117

· Power of High Court to Determine Issues of Fact 119

· Order from which Appeal Lies 119

· Kondiba Dagadu Kandam case 119

· Powers of Appellate Court 121

Q. Discuss the powers of an Appellate Court. 121

· When Appeal Lies to the Supreme Court 121

¨ Revision 123

Q. What do you mean by word 'Revision'? 123

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 · Essential Requirements for 'Revision' 124

Q. Discuss the essential ingredients of 'revision'. 124

· Exercise of Revisional Jurisdiction is Discretionary 125

· 'Case' and 'Suit': Distinction 125

Q. Differentiate the words 'case' and 'suit'? 125

· Jurisdictional Error 125

¨ Review (Section 114 and Order XLVII) 128

Q. What does the word 'Review' mean? 128

· Conditions Precedent to Allow Review Application 129

Q. What are the essential conditions to allow review application? 129

· Surinder Singh case 130

· 'Appeal' and 'Revision': Distinction 131

Q. Differentiate between 'appeal' and 'revision'. 131

· 'Revision' and 'Review': Distinction 131

Q. Point out the difference between 'Revision' and 'Review'. 132

· Table of Cases 133

· Section Index 141

· Order, Rule Index 142

© Universal law Publishing Co.

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CHAPTER 1

DEFINITIONS

DECREE [SECTION 2(2)]

The adjudication of a Civil Court ends either in form of:

(i) Decree; or

(ii) Order.

Q. What does the word 'Decree' mean?

"Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively
determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either
preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section
144, but shall not include:

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation.--

A decree is preliminary when further proceedings have to be taken before the suit can be completely
disposed of. It is final when such adjudication completely disposes of the suit. It may be partly
preliminary and partly final.1

A "decree" denotes final adjudication between the parties and against which an appeal lies, but only when a suit is completely
disposed of, thereby a final decree would come into being; Bikoba Deora Gaikward v. Hirabai Marutirao Ghoragare,
MANU/SC/2540/2008 : (2008) 8 SCC 198.

Thus, 'decree' means a general or formal expression of an adjudication as regards the court expressing it, conclusively
determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be:

(a) preliminary; or

(b) final.

________________

1. Section 2(2) of the Code of Civil Procedure, 1908.

The order rejecting application for condonation of delay is not a decree. Consequently, dismissal of appeal as time-barred is
also not a decree, State of Rajasthan v. Rajpal Singh Chauhan, MANU/RH/0446/2011 : AIR 2011 Raj 101.

Essential Elements

Q. Explain the essential elements of decree with illustrations.

From a bare reading of the above definition and particular case laws it is evident that a 'decree' must have the following
elements; Paramjeet Singh Patheja v. ICDS Ltd., (2006) 11 SCALE 459: MANU/SC/4798/2006 : AIR 2007 SC 168: 2006 (4) Arb
LR 202 (SC): 2007 (4) Bom CR 447: (2006) 6 Comp LJ 425 (SC): 2006 (5) CTC 357: JT 2006 (10) SC 41:

(i) the adjudication must be given in a suit.

(ii) the suit must start with a plaint and culminate in a decree.

(iii) such adjudication must be formal and final and must be given by a civil or revenue court.

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(i) Adjudication.--

Adjudication means "a judicial determination of a matter in controversy". Thus a decision on a matter of an administrative
nature or an order dismissing a suit for default of the appearance of parties or dismissing an appeal for want of prosecution
cannot be termed as a decree inasmuch as it does not deal with the matter in dispute. Further, such judicial determination
must be by a court.

In the definition, some orders which otherwise do not constitute decree are also included and certain orders which constitute
decree have been excluded from it. There must be a formal expression of adjudication. All requirement of forms must be
complied with. The decree follows judgment and must be drawn up separately. Thus, if a decree is not formally drawn up in
terms of the judgment, no appeal lies from the judgment. Thus, a misdescription of a decision as an order which amounts to a
decree, does not make it less than decree.

In order that a decision of a court should become a decree, there must be an adjudication in a suit and such adjudication
must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit and such
determination must be of a conclusive nature. If those parameters are to be applied then rejection of application for
condonation of delay will not amount to a decree; Ratan Singh v. Vijaya Singh, AIR 2001 SC 279.

(ii) Suit.--

'Suit' ordinarily means "a civil proceeding instituted by presentation of a plaint." Thus, every suit is commenced by a plaint;
Jagdishwar Sahai v. Surjan Singh Pal, MANU/UP/0145/1977 : AIR 1977 All 554, and when there is no civil suit there is no
decree; Minakshi v. Subranranaya, 14 IA 160. However, under certain enactments specific provisions have been made to
treat application as suit, e.g., it was held in Mst. Bhonri v. Suwalal, MANU/RH/0036/1956 : AIR 1956 Raj 119 that decision in
an application for probate cannot be held to be a decree by virtue of section 295 of the Indian Succession Act, 1925, which
enacts that an application for probate has to be regarded, where contested, as a regular suit, as it is only an adjudication
given in a suit, commencing with the presentation of a plaint that is a decree under section 2(2) of the Code of Civil
Procedure, 1908. A contrary view has been taken by the Allahabad High Court in E. Moah Stephens v. H.G. Orme, 35 All 448.

The determination of a question under section 47 of the Code of Civil Procedure, 1908 was expressly included in the definition
of a decree, although such determination was not made in a suit and sometimes not drawn up in the form of a decree;
Shakuntala Devi Jain v. Kuntal Kumari, MANU/SC/0335/1968 : AIR 1969 SC 575: (1969) 1 SCR 1006.

(iii) Rights of parties for adjudication as to matter in controversy.--

The word "rights" means substantive rights of the parties and not merely procedural rights. Thus, 'rights of parties' inter se
relating to status, limitation, jurisdiction, frame of suit, accounts, etc. The rights in matter of procedure are not included in it.
Thus, an order for dismissal of a suit for default of appearance or an order for dismissing application for execution for non-
prosecution or an order refusing leave to sue "in forma pauperis", are not decrees as they do not determine the rights of
parties.

Mst. Chauli v. Mst. Meghoo, MANU/UP/0069/1944 : AIR 1945 All 268 most exaggeratedly explained the essential elements of a
"decree" as follows:

(i) there must be an adjudication.

(ii) the adjudication must have been given in a suit.

(iii) it must have determined the rights of the parties with regard to all or any of the matters in controversy in suit.

(iv) such determination must be a conclusive determination.

(v) there must be a formal expression of the adjudication.

The definition of decree must be taken along with the provisions of the Code regarding the stage at which a decree may be
prepared, and it is not every finding that will amount to a decree even though it may conclusively determine the rights of the
parties with regard to some of the matters in controversy in the suit.

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The term "parties" means parties to the suit, i.e., the plaintiff and defendant. Thus, an order on an application by a third
party, who is stranger to a suit, is not a decree.

The expression "matter in controversy" refers to the subject-matter of the suit with reference to which relief is sought. It
should not be understood that the 'matter in controversy' solely relates to the merits of the suit. It would also cover
questions relating to the character and status of a party suing, to the jurisdiction of the Court, to the maintainability of the
suit and to the preliminary matters which necessitate an adjudication before a suit is enquired into. Interlocutory orders on
matters of procedure which do not decide the substantive rights of the parties are not decrees. Similarly, the proceedings
preliminary to the institution of a suit will not be included in the definition.

Therefore, any adjudication which conclusively determines the rights of the parties with regard to any of the matters in
controversy in the suit, is a decree within the meaning of section 2(2) of the Civil Procedure Code and an appeal lies against
it under section 96 of the Civil Procedure Code.

The expression "matters in controversy" includes matters which though they are common ground must have been actually
decided if any question had arisen and which are the foundation of the whole determination. Ummed Mal v. Kundanmal,
MANU/RH/0045/1981 : AIR 1981 Raj 202.

(iv) Conclusive determination.--

The conclusive determination, in order to amount to a decree must be on matters in controversy in the suit. The
determination must be final and conclusive as regards to the court which passes it. Thus, an interlocutory order which does
not decide the rights of the parties finally is not a decree. 'Decree' should suggest in essence and substance, a decision
which is final and conclusive not that the question sought to be adjudicated is left open. The order cannot be held to be an
adjudication which conclusively determines the rights of the parties with regard to any of the matters in controversy in the
suit; Goppupeddi Reddi v. Gopu T. Reddy, AIR 1991 AP 362.

(v) Test for determination of "decree"

For determining the question as to whether an order passed by a Court is a decree or not, it must satisfy the following tests:

(a) there must be an adjudication.

(b) such adjudication must have been given in a suit.

(c) it must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit.

(d) such determination must be of a conclusive nature.

(e) there must be a formal expression of such adjudication. S. Satnam Singh v. Surender Kaur, MANU/SC/8431/2008 :
AIR 2009 SC 1089.

Illustrations

(A) Decisions which are 'decrees':

(i) Orders of abetment of suit.

(ii) Dismissal of appeal as time-barred.

(iii) Rejection of plaint for non-payment of court-fee.

(iv) Order holding appeal non-maintainable.

(v) Dismissal of suit/appeal for want of evidence/proof.

(vi) Adjudication under sections 9-11 and 13 of the Hindu Marriage Act, 1955; Bai Umiyahen v. Ambalal Laxmidas,
MANU/GJ/0043/1966 : AIR 1966 Guj 139: (1965) GLR 714; Gurbachan Kaur v. Swaran Singh, MANU/UP/0062/1978 : AIR
1978 All 255.

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(B) Decisions which are not 'decrees':

(i) Dismissal of appeal for default.

(ii) Appointment of Commissioner to take account.

(iii) Order of remand.

(iv) Order of granting interim relief under section 24 of the Hindu Marriage Act, 1955; Man Singh v. Siva Prabakumari,
MANU/MH/0292/1959 : AIR 1960 Bom 315.

(v) Order admitting second appeal is not a decree. S.B. Minerals v. M/s. MSPL Ltd., MANU/SC/1945/2009 : AIR 2010
SC 1137.

(vi) Order rejecting an application for leave to sue in forma pauperis for no suit has till than been filed; Narasingha Das
v. Ratiram Gupta, AIR 1965 Hyd 41.

(vii) Orders passed in proceedings under section 25 of the Guardians and Wards Act, 1890; Mst. Kiran Devi v. Abdul
Wahid, AIR 1996 All 105.

When 'Decree' is said to be Nullity

In Sardar Pritam Singh v. Addl. District Judge, Mathura, 1995 All CJ 971 it was held that,

"A decree is said to be nullity if it passed by a court having no inherent jurisdiction. Merely because a court
erroneously passed a decree or there is an error while passing the decree, the decree cannot be called a nullity. The
decree to be called a nullity is to be understood in the sense that it is ultra vires the powers of the court passing the
decree and not merely voidable decree."

Decrees: Types of

According to the definition provided under section 2(2) of the Civil Procedure Code, 1908, a 'decree' may be either
"preliminary' or 'final' or 'partly preliminary' or 'partly final', it shall be deemed to include:

(i) the rejection of a plaint; and

(ii) the determination of any question within section 144.

However, it shall not include:

(i) any adjudication from which an appeal lies as an appeal from an order; or

(ii) any order for dismissal for default.

Q. Explain the types of Decree and what is 'preliminary decree'?

Decree

(A) Preliminary Decree (B) Final Decree

(1) Preliminary Decree

An adjudication that finally decides the right of parties but does not completely dispose of the suit is a preliminary decree;
Venkata Reddy v. Pethi Reddy, AIR 1963 SC 993. So, in preliminary decree, certain rights are conclusively determined and
unless the preliminary decree is challenged in appeal, the rights so determined become final and conclusive and cannot be
questioned in the final decree; Parvathamma v. A. Muniyappa, MANU/KA/0062/1997 : AIR 1997 Kant 370: 1997 (4) Kant LJ 95.
Suit for possession and mesne profits, suits for pre-emption, suit for dissolution of partnership between principal and agent,
for foreclosure of mortgage, etc., are examples where courts can pass preliminary decree. There has been complicating
opinion as to whether there can be more than one preliminary decree in a same suit. However, as regard to partition suits,
the Supreme Court in Phoolchand v. Gopal Lal, MANU/SC/0284/1967 : AIR 1967 SC 1470: (1967) 3 SCR 153 concluded that

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there is nothing in the civil code which prohibits passing of more than one preliminary decree, if circumstances justify the
same and it may be necessary to do so, but what we are saying must be confined to partition suits. The question whether a
decision amounts to preliminary decree or not is of great significance in view of provisions of section 97 of the Civil Procedure
Code, 1908:

"Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal
from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the
final decree."

The object of section 97 is to prevent preliminary questions being raised in the form of appeal after a case has been decided
on merits. Since the passing of a preliminary decree is only a stage prior to passing of a final decree, if an appeal preferred
against a preliminary decree succeeds, the final decree automatically falls to the grounds for there is no preliminary decree in
support of it.

(2) Final Decree

A decree may be said to be final in three ways:

(i) when no appeal is filed within the prescribed period; or

(ii) the matter has been decided by the decree of the highest court; and

(iii) when the decree, so far as regards the Court passing it, completely disposes of the suit.

Q. In what way a decree can be said to be final one?

The final decree merely carries into fulfilment of the preliminary decree; S. Balwant Lokhande v. Chandrakant Shankar
Lokhande, MANU/SC/0243/1995 : (1995) 3 SCC 413: AIR 1995 SC 1211: JT 1995 (3) SC 186: (1992) II LLJ 18 (SC): (1995) 2
SCALE 318: (1995) 2 SCR 776: 1992 (1) SLJ 7 (SC): 1995 (1) UJ 707 (SC). Where an appeal against a preliminary decree is
not filed the rights determined therein become final and conclusive and the same cannot be questioned in the final decree;
Parvathamma v. A. Muniyappa, MANU/KA/0062/1997 : AIR 1997 Kant 370: 1997 (4) Kant LJ 95.

A final decree is one which completely disposes of a suit and finally settles all questions in controversy between parties and
nothing remains to be decided thereafter. While the preliminary decree ascertains what is to be done, the final decree states
the results achieved by means of the preliminary decree. The preliminary decree is not dependant on the final one, but the
latter is really dependent and subordinate to the former, which is the not extinguished by the passing of the final decree.
Thus, in a partition suit, the preliminary decree declares the rights of the parties and the final decree divides the properties
specifically by metes and bounds in terms of rights so declared, thereby completely disposing of the suit. All executable
decree is thus secured to the parties. The function of the final decree is merely to restate and apply with precision what the
preliminary decree has ordered.

Ordinarily, there will be only one final decree in a suit. However, where two or more causes-of-action are joined to, there can
be more than one final decree.

Distinction between 'Preliminary' and 'Final' Decree

In Renu Devi v. Mahendra Singh, MANU/SC/0112/2003 : (2003) 10 SCC 200: AIR 2003 SC 1608: 2003 (51) BLJR 699: 2003 (2)
JCR 195 (SC): JT 2003 (5) SC 164: (2003) 2 SCALE 22: (2003) 1 SCR 820 the Supreme Court made out the distinction
between 'Preliminary' and 'Final' decree in the following manner:

"A preliminary decree is one which declares the rights and liabilities of the parties leaving the actual result to be
worked out in further proceedings. Then, as a result of the further inquiries conducted pursuant to the preliminary
decree, the rights of the parties are finally determined and a decree is passed in accordance with such determination,
which is, the final decree.

The distinction between preliminary and final decree is this: a preliminary decree merely declares the rights and shares
of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in

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 the preliminary decree which inquiry having been conducted and the rights of the parties finally determined a decree is
incorporating such determination needs to be drawn up which is the final decree."

In Rachakonda V. Rao v. R. Satya Bai, MANU/SC/0702/2003 : AIR 2003 SC 3322: 2003 (6) ALD 110 (SC): 96 (2003) CLT 749
(SC): JT 2004 (6) SC 83: (2003) 7 SCALE 430: (2003) 7 SCC 452, it was observed by the Apex Court that, the explanation to
section 2(2) of the Civil Procedure Code, 1908 makes it clear that a decree is preliminary when further proceedings have to be
taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. A
decree may be partly preliminary and partly final.

(3) 'Partly Preliminary' and 'Partly Final' Decree

Q. How can you distinguish 'preliminary' and 'final' decree with the help of case law?

A decree inheriting characteristics of partly preliminary and partly final is passed in suits as for possession of land and mesne
profits, the court orders possession of the land in suit in favour of the plaintiff, and directs enquiry regarding the profits. The
first portion of the decree is final as it directs the delivery of possession to the plaintiff, while the second portion is
preliminary in as much as it directs an enquiry as to mesne profits. Where in a suit for possession as well as mesne profits a
single decree is made, it is partly preliminary and partly final.1

Rejection of Plaint

The definition of 'decree' as provided under section 2(2) of the Civil Procedure Code, 1908 specifically provides that rejection
of a plaint shall be deemed to be a 'decree'. Such adjudication is, therefore, appealable as a

____________
1. MANU/W B/0255/1929 : AIR 1929 Cal 383.

decree; Puranmasi Yadav v. Narbadeshwar Tripathi, MANU/UP/0175/1998 : AIR 1998 All 260:1998 (2) AWC 831. However, an
order returning a plaint or memorandum of appeal to be presented to proper court is not a decree. The reason being that such
orders do not negate any right of plaintiff or appellant and is not a decision on the rights of parties.

Appealable Orders

The term 'decree' expressly excludes an adjudication from which an appeal lies as an appeal from an order. Thus, an order
returning the plaint to be presented to the proper court or an order rejecting an application for an order to be set aside ex
parte decree, etc., are appealable orders and not decrees.

An appeal shall lie from the following orders:

An Order--

(i) suppressing an arbitration.

(ii) on an award stated in the form of a special case.

(iii) modifying or correcting an award.

(iv) filing or refusing to file an arbitration agreement.

(v) staying or refusing to stay legal proceedings where there is an arbitration agreement.

(vi) setting aside or refusing to set aside an award. Shah Babulal Khimji v. Jayaben D. Kania,
MANU/SC/0036/1981 : AIR 1981 SC 1786.

Order of Dismissal for Default

A dismissal of suit for non-prosecution or for non-appearance of plaintiff is not a decree; Firdous Omer v. Bankim Chandra
Daw, MANU/SC/3384/2006 : AIR 2006 SC 2759: 2007 (1) AWC 36 (SC): 2006 (4) JCR 84 (SC): JT 2006 (12) SC 545: (2006) 4
MLJ 1714 (SC): RLW 2007 (1) SC 191: (2006) 7 SCALE 439: MANU/SC/3384/2006 : (2006) 6 SCC 569, this is because

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definition of 'decree' does not include any order of 'dismissal for default' viz. for want of prosecution of suit or appeal, default
for non-prosecution, etc.

Decree-holder.--

According to section 2(3) of the Civil Procedure Code, 1908:

'Decree-holder' means any person in whose favour a decree has been passed or an order capable of execution
has been made;

The expression 'decree-holder' is not confined only to the plaintiff. It means that one in whose favour a decree has passed.
Even, a person who is not a party to the suit but in whose favour an order capable of execution is passed is a 'decree-
holder'. However, the word 'decree-holder' does not include an attaching creditor.

As long as a person whose name is inscribed on a decree is to be found as the person in whose favour the decree is passed,
such person must be deemed to be a decree-holder. The name of decree-holder in certain cases may or may not appear as
the plaintiff. Dhani Ram Gupta v. Lala Sri Ram, MANU/SC/0407/1979 : AIR 1980 SC 157.

JUDGMENT [SECTION 2(9)]

According to section 2(9) of the Civil Procedure Code, 1908,

'Judgment' means the statement, given by the Judge on the grounds of a decree or order.

'Judgment' provides the reasons (or grounds) for the passing of the decree/order. Every judgment other than that of a Court
of Small Causes, shall essentially contain:

(i) a concise statement of the case;

(ii) the point for determination;

(iii) the decision thereon;

(iv) the reason for such decision.

A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming that the
court had intended to say only that which is correct according to the settled position of law, and the apparent error should
be ignored, far from making any capital out of it, giving way to the correct expression which ought to be implied or necessarily
read in the context, also having regard to what has been said a little before and a little after. No judge would consciously
author a judgment which is self-inconsistent or incorporates passages repugnant to each other. State of West Bengal v.
Kesoram Industries Ltd., AIR 2005 SC 1646.

For the Court of Small Causes, a judgment may contain points (ii) and (iii) mentioned hereinabove. Otherwise, a judgment
must contain the grounds of the decision; Vidyacharan v. Khubachand Baghel, MANU/SC/0120/1963 : AIR 1964 SC 1099:
(1964) 6 SCR 129.

Q. What does the word 'Judgment' mean?

Sketchy orders which are not self-contained and cannot be appreciated by an appellate or revisional courts without examining
all records and if unsatisfactory cannot be said to be judgment in proper sense.

In State of West Bengal v. Kesoram Industries Ltd., AIR 2005 SC 1646: (2004) 187 CTR (SC) 219: (2004) 266 ITR 721 (SC):
JT 2004 (1) SC 375: (2004) 1 SCALE 425: (2004) 10 SCC 201 it was held by Lahoti, J. that:

"A doubtful expression occurring in a judgment, apparently by mistake or inadvertence, ought to be read by assuming
that the Court had intended to say only that which is correct according to the settled position of law, and the
apparent error should be ignored, for making any capital out of it, giving way to the correct expression which ought to
be implied or necessarily read in the context, also having regard to what has been said a little before and a little after.
No learned Judge would consciously author a judgment which is self-inconsistent or incorporates passages repugnant

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 to each other."

In Balraj Taneja v. Sunil Madan, MANU/SC/0551/1999 : AIR 1999 SC 3381: JT 1996 (6) SC 473: (1993) 5 SCALE 400:
MANU/SC/0551/1999 : (1999) 8 SCC 396: (1999) Supp 2 SCR 258 the Supreme Court observed that, a Judge cannot merely
say "suit decreed" or "suit dismissed". The whole process of reasoning has to be set out for deciding the case one way or the
other. The judgment must be intelligible and must show that the Judge has applied his mind.

Judgments of courts are not construed as statutes since judges interpret words of statutes; Aswani Kumar Singh v. U.P.
Public Service Commission, MANU/SC/0461/2003 : AIR 2003 SC 2661.

Lakshmi Ram Bhuyan case

In Lakshmi Ram Bhuyan v. Hari Prasad Bhuyan, MANU/SC/1018/2002 : (2003) 1 SCC 197: AIR 2003 SC 351: 2003 (1) AWC 348
(SC): (2003) 2 Cal LT 34 (SC): JT 2002 (9) SC 542, it was observed by the Supreme Court that,

"Certain provisions of the Code of Civil Procedure, 1908 may be noticed. Order VII, rule 1 of the Code of Civil
Procedure, 1908 requires the plaintiff to give sufficient particulars of the relief, which the plaintiff claims. Order XX
requires a judgment to contain all the issues and findings or decision thereon with the reasons therefore. The judgment
has to state the relief allowed to a party. The preparation of decree follows the judgment. The decree shall agree with
the judgment. The decree shall contain, inter alia, particulars of the claim and shall specify clearly the relief granted or
other determination of the suit. The decree shall also state the amount of costs incurred in the suit and by whom or
out of what property and in what proportions such costs are to be paid. Rules 9 to 19 of Order XX are illustrative of
contents of decrees in certain specified categories of suits. The very obligation cast by the Code that the decree shall
agree with the judgment spells out an obligation on the part of the author of the judgment to clearly indicate the relief
or reliefs to which a party, in his opinion, has been found entitled to enable decree being framed in such a manner that
it agrees with the judgment and specifies clearly the relief granted or other determination of the suit. The operative
part of the judgment should be so clear and precise that in the event of an objection being laid, it should not be
difficult to find out by a bare reading of the judgment and decree whether the latter agrees with the former and is in
conformity therewith. A self-contained decree drawn up in conformity with the judgment would exclude objections and
complexities arising at the stage of execution.

The obligation is cast not only on the Trial Court but also on the Appellate Court. In the event of the suit having been
decreed by the trial court if the Appellate Court interferes with the judgment of the Trial Court, the judgment of the
Appellate Court should precisely and specifically set out the reliefs granted and the modifications, if any, made in the
original decree explicitly and with particularity and precisely. Order XLI, rule 31 of the Code of Civil Procedure, 1908
casts an obligation on the author of the appellate judgment to state the points for determination, the decision
thereon, the reasons for the decision and when the decree appealed from is reversed or varied, the relief to which the
appellant is entitled. If the suit was dismissed by the trial court and in appeal the decree of dismissal is reversed, the
operative part of the judgment should be so precise and clear as it would have been if the suit was decreed by the
trial court to enable a self-contained decree being drawn up in conformity therewith. The plaintiff, being dominus litus,
enjoys a free hand in couching the relief clause in the manner he pleases and cases are not wanting where the plaintiff
makes full use of the liberty given to him. It is for the Court, decreeing the suit, to examine the reliefs and then
construct the operative part of the judgment in such manner as to bring the reliefs granted in conformity with the
findings arrived at on different issues and also the admitted facts. The Trial Court merely observing in the operative
part of the judgment that the suit is decreed or an Appellate Court disposing of an appeal against dismissal of suit
observing the appeal is allowed and then staying short at that, without specifying the reliefs to which the successful
party has been found entitled tantamounts to a failure on the part of the author of judgment to discharge obligations
cast on the Judge by the provisions of Code of Civil Procedure.

Where the reliefs prayed for in the plaint shows that the reliefs are not very happily worded. There are some reliefs
which may not be necessary or may be uncalled for though prayed. The reliefs may have been considered capable of
being recast or redefined so as to be precise and specific. May be that the Court was inclined to grant some other
relief so as to effectually adjudicate upon the controversy and bring it to an end. Nothing is spelled out from the

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 appellate judgment. The Trial Court, on whom the obligation was cast by second appellate judgment to draw up a
decree, was also, as its order shows, not very clear in its mind and thought it safe to proceed on an assumption that
all the reliefs sought for in the plaint were allowed to the plaintiffs. The Judge allowing the second appeal, should
clearly and precisely state the extent and manner of reliefs to which the plaintiffs were found to be entitled in his view
of the findings arrived at during the course of the appellate judgment. The parties, the draftsman of decree and the
executing court cannot be left guessing what was transpiring in the mind of the Judge decreeing the suit or allowing
the appeal without further placing on record the reliefs to which the plaintiffs are held entitled in the opinion of the
Judge.

Section 152 enables the court to vary its judgment so as to give effect to its meaning and intention. Power of the
court to amend its orders so as to carry out the intention and express the meaning of the Court at the time when the
order was made was upheld by Bowen, L.J. in re: Swire; Mellor v. Swire, (1885) 30 Ch D 239, subject to the only
limitation that the amendment can be made without injustice or on terms which preclude injustice. Lindley, L.J.
observed that if the order of the Court, though drawn up, did not express the order as intended to be made then
"there is no such magic in passing and entering an order as to deprive the Court of jurisdiction to make its own records
true, and if an order as passed and entered does not express the real order of the Court, it would, as it appears to
me, be shocking to say that the party aggrieved cannot come here to have the record set right, but must go to House
of Lords by way of appeal."

Words "Judgment" and "Decree": Distinction

Q. Explain the major distinction between the words 'judgment' and 'decree'.

Generally speaking, words "Judgment" and "Decree" though looks similar but both stand on different footings. "Judgment"
means the statement given by a Judge on the grounds of a 'decree' or 'order'. Therefore, the legislature has avoided the use
of words 'formal expression' in the definition of "judgment". However, this expression has been used in case of "Decree" and
"Order".1 It is not necessary that in a decree, there should be a statement of reasons given by a Judge, though, it is
necessary in a judgment. The "decree" is the formal expression of conclusions arrived at in the judgment. The last paras of
the judgment normally state precisely, the relief granted to the parties. Thus, a judgment contemplates a stage prior to the
passing of a decree or an order, and, after the pronouncement of judgment, a decree shall follow.

JUDGMENT-DEBTOR [SECTION 2(10)]

Q. What does the expression 'Judgment-Debtor' mean?

According to section 2(10) of the Code of Civil Procedure, 1908.

"Judgment-debtor" means any person against' whom a decree has been passed or an order capable of execution has
been made."

The judgment-debtor is a person against whom a court has made a monetary award. If the court pronounces a judgment
involving money-damages, the losing party must satisfy the amount of the award, and such award is termed as "judgment
debt". Such award gives the winner of the suit or judgment, or award, the right to recover the debt in the way of extra-
ordinary means and the court helps the judgment-creditor to do so or proceed against it because the judgment-creditor gains
the rights and protection. The court can order the judgment-debtor to appear for an oral hearing to assess his assets. If it is
determined or assessed that the judgment-debtor has sufficient assets to satisfy the debt the court can order the debtor to
surrender his property to it. This process is known as "attachment of property" or a part of judgment-debtor's salary by the a
process called "garnishment".

However, expression "Judgment-debtor' does not include:

(i) legal-representative of a decreased judgment-debtor; Ramji Das v. S. Mohammad Laiq, MANU/UP/0215/1953 : AIR
1953 All 461.

(ii) surety of a judgment debtor; Vijay Raj v. Lal Chand, (1966) ILR Raj 194.

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 FOREIGN JUDGMENT [SECTION 2(6)]

Q. What is the meaning of 'foreign judgment'? Can it be significant in a similar case in India? Explain with the help of
relevant case laws.

According to section 2(6) of the Code of Civil Procedure, 1908:

"Foreign Judgment means the judgment of a foreign court."

It is clear from the definition of the words "Foreign Judgment" that it creates a new right in favour of the creditor and a new
obligation imposed by the foreign court on the debtor. In Satya v. Teja Singh, MANU/SC/0212/1974 : AIR 1975 SC 105: 1975
Cr LJ 52: (1975) 1 SCC 120: (1975) 2 SCR 197 it was held by the Supreme Court that,

______________

1. See section 2(14) of the Code of Civil Procedure, 1908.

"A judgment of foreign court is enforced on the principle that court of competent jurisdiction has adjudicated upon a
claim, a legal obligation arises to satisfy that claim. The rules of Private International Law of each state in the very
nature of things differ, but by the comity of nations certain rules are recognized as common to civilized jurisdictions.
Such a recognition is accorded not as an act of courtesy but on considerations of justice, equity and good
conscience."

Non-conclusiveness of foreign judgment/objection to a foreign judgment [Section 13].

A Foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or
between parties under whom they or any of them claim litigating under the same title except:

(a) where it has not been pronounced by a court of competent jurisdiction;

(b) where it has been given on the merits of the case;

(c) where it appears on the face of proceedings to be founded on an incorrect view of international law or a refusal to
recognize the law of India in case in which such law is applicable;

(d) where it has been obtained by fraud;

(e) where the proceedings in which the judgment was obtained are opposed to natural justice; and

(f) where it sustains a claim founded on a breach of any law in force in India.

Under section 13 of the Code of Civil Procedure, 1908, a foreign judgment is conclusive and will operates as res judicata
between the parties in six cases [clauses (a) to (f)].

Foreign Judgment not by Competent Court

Q. When X sues Y in a foreign court and the suit is dismissed; will this decision shall operate as 'res judicata' on a
fresh suit by X against Y in India on the same cause-of-action?

It is a cardinal and most fundamental principle of law that the judgment or order passed by the Court which has no jurisdiction
is null and void. Thus, judgment pronounced must be competent Foreign Court both by the law of the state which has
constituted it and in an international sense and it must have directly adjudicated upon the "matter" which is pleaded as "res
judicata"; Vishwanathan v. Abdul Wazid, AIR 1963 SC 21.

Thus, if A sues B in a foreign court, and if the suit is dismissed, the decision will operate as a bar to a fresh suit by A in India
on the same cause-of-action. On the other hand if a decree is passed in favour of A by a foreign court against B and he sues
6 on the judgment in India, B will be precluded from putting in issue, the same matters that were directly and substantially in
issue in the suit and adjudicated upon by the foreign court.

In an action in personam in respect of any cause-of-action, the Court of a foreign country is a court of competent jurisdiction

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where the defendant is personally within the jurisdiction or submits to the jurisdiction or though outside the jurisdiction may
be reached by an order of the Court. In an action in personam the court has jurisdiction to make an order for delivery of
movables where the parties submit to jurisdiction. However, the Court has no jurisdiction to pass a decree in respect of an
immovable property situated in a foreign state. A decree passed by a court in Ceylon against a native of state in a suit on a
contract who was not residing in Ceylon is a nullity; and cannot be enforced by an Indian Court; Sheikh Atham v. Davud,
1909 Mad 469.

Bharat Nidhi Ltd. case

In Bharat Nidhi Ltd. v. Megh Raj Mahajan, 3 (1967) DLT 140: AIR 1964 Del 22 Bharati Nidhi Ltd. (Plaintiff-appellant) filed a suit
against Megh Raj Mahajan (defendant-respondent) on 24th August, 1949 to recover (Dues) on 20th December, 1949, the
senior subordinate judge, Sialkot, decreed the suit. The suit for recovery of (Dues) was filed on 12th June, 1954, on the basis
of judgment of senior subordinate judge Sialkot. The decree of Sialkot Court observed "a summons was duly served upon
Megh Raj Mahajan, notwithstanding which he has not appeared to defend the suit". From this finding the appellants advocate
wants this court to reduce that the defendant was physically present in Pakistan when he was served the notice when the
initial suit was filed in Sialkot Court.

For the Bharat Nidhi Ltd. to succeed in suit the judgment and decree passed by Sialkot court (foreign court) must not be
nullity, i.e., Sialkot Court must be a competent court. In the present suit, para 4 of the plaint as ordinarily filed there was no
allegation about the domicile, nationality or residence of the defendant. Whereas in his written statement Meghraj Mahajan
(defendant) denies that the amount, if any, to the plaintiff was payable at Sialkot or any place in Pakistan on 24th August,
1949 when the defendant had since long before (from September 1947) ceased to be reside or carry on business in Sialkot
and had actually migrated to India and had become an Indian national. The defendant appearing his own witness stated--
"prior to partition I was residing in Sialkot. I migrated to India in beginning of the month of September 1947 due to civil
disturbances thereafter 1 was settled in India, "I got myself registered as displaced person in India" ....I have never been to
Pakistan or Sialkot thereafter."

The evidence (registration as displaced person) by Megh Raj Mahajan (defendant) was sufficient to admit the fact that he
shifted from Sialkot in September 1947 to the territories comprised in India (after 15th August, 1947), became a permanent
domicile and resident thereof with no intention of going back to Pakistan, and never went to Pakistan after September, 1947.

It was held, both on the date of institution of suit i.e. (24th August, 1949) and the date of judgment (20th December, 1949)
the defendant was domicile and resident of India. The defendant not having submitted to the jurisdiction of Sialkot Court in a
personal action against him, a decree pronounced in absentee would be absolute nullity not enforceable.

In Raj Rajendra Sardar Maloji Marsingh Rao Shitole v. Shankar Saran, MANU/SC/0013/1962 : AIR 1962 SC 1737: (1963) 2 SCR
577, the Supreme Court observed that,

"It may be noted that the crucial date to determine whether the judgment is of a foreign court or not is the date of
Judgment and not the date when it is sought to be enforced or executed. Thus a judgment of a court which was a
foreign court at the time of its pronouncement would not cease to be a foreign court by reason of the fact that
subsequently the foreign territory has become part of Union of India. On the other hand, an order which was good and
competent when it was made and passed by a tribunal which was domestic at the date of its making and which could
at the date have been enforced by an Indian court, does not lose its efficacy by reason of the partition".

Foreign Judgment not on merits

In order to be conclusive the foreign judgment must be on the merits, i.e., the judge applies his mind to detect the truth or
falsity of the plaintiffs case and decides the case one way or the other. Thus, when the suit is dismissed for the default of
appearance of the plaintiff or for the non-production of document by the plaintiff even before the written statement filed by
the defendant, or where the decree was passed in consequence of default of defendant in furnishing security, or after
refusing leave to defend, such judgments are not on merits. A judgment of a foreign court on compromise is a judgment on
merits and must be held to be conclusive; Satyanarain v. Balchand, ILR (1954) 4 Raj 905.

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Foreign Judgment against International and Indian Law

A judgment based upon an incorrect view of international law or refusal to recognize the law of India where such law is
applicable is not conclusive. But the mistake must be apparent on the face of the proceedings. Thus, where a suit is
instituted in U.K. on the basis of a contract made in India, the English court erroneously applied the English law, the judgment
of the court is covered by this clause in as much as it is a general principle of Private International Law that the rights and
liabilities of the parties to a contract are governed by the place where the contract is made (Lex Loci contracts); Gurdayal
Singh v. Rajah of Faridkot, (1895) 22 Cal 222.

Foreign Judgment obtained by Fraud

Q. Can a 'mistake of law' in a foreign judgment can be a ground to vacate a same suit in India?

All judgments whether pronounced by domestic or foreign courts are void if obtained by fraud, for fraud vitiates the most
solemn proceeding of the court of justice; Mahboob Saheb v. Syed Ismail, MANU/SC/0698/1995 : AIR 1995 SC 1205: JT 1995
(3) SC 168: 1996 (6) Kant LJ 194: (1995) 2 SCALE 395: MANU/SC/0698/1995 : (1995) 3 SCC 693. Though it is not permissible
to show that the court was "mistaken", it might be shown that it was "misled". There is an essential distinction between
mistake and trickery. A "mistake of law" in a foreign judgment is no ground for vacating it, but it can be set aside if the court
was imposed upon or tricked into giving the judgment.

In the leading case of Satya v. Teja Singh, MANU/SC/0212/1974 : AIR 1975 SC 105: 1975 Cr LJ 52: (1975) 1 SCC 120: (1975)
2 SCR 197, a husband obtained a decree of divorce against his wife from an American court averring that he was domiciled in
America observing that the husband was not a bona fide resident or domicile of America, and he had played a fraud on a
foreign court falsely representing to it incorrect jurisdictional fact, the Supreme Court held that the decree was without
jurisdiction and nullity.

Again, in Y. Narasimha Rao v. Venkata Lakshmi, MANU/SC/0603/1991 : (1991) 3 SCC 451:1991 (2) Crimes 855 (SC): II (1991)
DMC 366 SC: JT 1991 (1) SC 33: (1991) 2 SCR

821, A (husband) obtained a decree of divorce against 6 (wife) again from an American Court on the ground that he was
resident of America. Then he remarried C. 6 filed a criminal complaint against A and C for bigamy. A and C filed an application
for discharge. Dismissing the application, the Supreme Court held that the decree of dissolution of marriage was without
jurisdiction in as much as neither the marriage was solemnised nor the parties last resided together in America. Therefore, it
was unenforceable in India.

In S.P. Chengalvaraya Naidu v. Jagannath, MANU/SC/0192/1994 : AIR 1994 SC 853: II (1993) BC 546 (SC): 1994 (1) BLJR
216: JT 1993 (6) SC 331: 1994 (I) OLR (SC) 201: (1995) 109 PLR 293: (1993) 4 SCALE 277: MANU/SC/0192/1994 : (1994) 1
SCC 1: (1993) Supp 3 SCR 422: 1994 (1) UJ 1 (SC), the Supreme Court stated. "It is settled proposition of law that a
judgment or a decree obtained by playing fraud on the court is a nullity and nonest in the eyes of the law. Such a
judgment/decree by the first court or by the highest Court, has to be treated as nullity by every court, whether superior or
inferior. It can be challenged in any court even in collateral proceedings".

Foreign Judgment opposed to Natural Justice

In Sankaran Govindan v. Lakshmi Bharathi, MANU/SC/0406/1974 : AIR 1974 SC 1764: (1975) 3 SCC 351: (1975) 1 SCR 57,
Hon'ble Supreme Court observed that, the Court rendering the judgement must comply with the minimum requirement of
natural justice--it must be composed of impartial persons, act fairly, without bias, and in good faith; it must give reasonable
notice to the parties to the dispute and afford each party an adequate opportunity of presenting his case. A judgment which
is the result of liaise or want of impartiality on the part of a judge will be regarded as a nullity and the trial "coram non judice."

The expression "natural justice" in section 13(d) relates to the irregularities in procedure rather than to the 'merits' of the
case.

Foreign Judgment founded on breach of Indian Law

Q. What is the effect of a 'foreign judgment' when it is founded on breach of Indian law?

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Where the foreign judgment is founded on a breach of any law in force in India, it would not be enforced in India. Every case
which comes before an Indian court must be decided in accordance with Indian law. It is implicit that the foreign law must not
offend our public policy. Thus, a foreign judgment on a claim which is barred under the law of limitation in India is not
conclusive. Similarly, a decree for divorce passed by foreign court cannot be confirmed by an Indian court if under the Indian
law the marriage is indissoluble; Y. Narasimha Rao v. Venkata Lakshmi, MANU/SC/0603/1991 : (1991) 3 SCC 451: 1991 (2)
Crimes 855 (SC): II (1991) DMC 366 SC: JT 1991 (1) SC 33: (1991) 2 SCR 821.

Presumption as to Foreign Judgment

Section 14 of the Code of Civil Procedure, 1908 declares that,

"The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign
judgment, that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on
the record; but such presumption may be displaced by proving want of jurisdiction."

Enforcement of Foreign Judgments

A foreign judgment which is conclusive as per section 13 of the Code of Civil Procedure, 1908 can be enforced in India on the
basis of following ways:

(i) By instituting a suit on such foreign judgment, however, such suit must be filed within 3 years from the date of
foreign judgment.

(ii) By instituting execution proceedings in specific cases mentioned in sections 44 and 44A of the Code of Civil
Procedure, 1908.

The decree can be executed under section 44A of the Code of Civil Procedure, 1908 only, if all the conditions of section 13(a)
to (f) are satisfied.

When foreign judgment not conclusive

A "foreign judgment" to be a valid cause of action for a suit upon it in India, must be final and conclusive "in the court in
which it is passed." In order to establish that a final and conclusive judgment has been pronounced, it must be shown that, in
the court in which it was pronounced, it conclusively, finally and forever established the existence of the right of which it
sought to be made conclusive evidence in India so as to make it res judicata between the parries.

ORDER [SECTION 2(14)]

Q. Explain briefly the word 'Order' in an adjudication of a court.

According to section 2(14) of the Code of Civil Procedure, 1908, 'Order' means the formal expression of any decision of a Civil
Court which is not a 'Decree'. Thus as per the definition provided under the Code, the adjudication of a court which is not a
'decree' is an 'order'. An 'order' of a court, as a general rule, is founded on objective considerations and as such the judicial
order must contain a discussion of the questions at issue and the reason which prevailed with the court which led to passing
of the order.

The word "order" as defined in the Code is analogous to a decree and does not imply that what is popularly understood,
namely "the view expressed by a judge on the merits of the case before him and his decision thereof".

An "order" only gives expression to what is in the judge's mind already as a decision. The formal expression is necessary both
as a matter of record and as a matter of a communication.

'Orders' which amount to a Decree

Q. When an 'Order' amounts to 'Decree'?

(i) Order rejecting a plaint;

(ii) Order in contempt proceeding;

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 (iii) Order of dismissal of suit on account of non-payment of court-fees;

(iv) Order for discharge of defendant for want of cause-of-action;

(v) Order rejecting prayer for final decree for foreclosure;

(vi) Order for abetment of a suit;

(vii) Order dismissing cross-objection, etc.

Orders which do not amount to a Decree

(i) Order of remand under section 151 of the Code of Civil Procedure, 1908;

(ii) Order for amendment;

(iii) Order rejecting an application to sue in forma pauperis for no suit till then had been filed;

(iv) Order under the Indian Trust Act, dismissing an application for removal of trustee;

(v) Order of an Appellate Court returning a memorandum of appeal be presented to the Supreme Court;

(vi) Order appointing a commission to take accounts;

(vii) Dismissal of non-compliance with an order of court;

(viii) An interlocutory order in execution deciding a point of law arising incidentally, etc.

Similarities between 'Order' and 'Decree'

Q. What are the similarities between words 'Order' and 'Decree'?

As we discussed earlier, an adjudication of a court of law may be either:

(i) decree; or

(ii) order.

But cannot be both. However, one can witness few common elements in both the above terms, viz.:

(i) both relate to matter in controversy;

(ii) both are decisions given by the court of law;

(iii) both are adjudication of a court of law; and

(iv) both are 'formal expressions' of a decision.

Distinction between 'Order' and 'Decree'

Q. Explain the distinction between 'Order' and 'Decree'.

Besides the similarities between these two terms, there are fundamental distinction between 'order' and 'decree' which are
given below in a tabular form:

Points of Decree Order

distinction

1. Origin A decree can only be passed in a suit An order originates from a suit by
which is commenced by presentation presentation of a plaint or from
of a plaint. proceeding commenced by a petition or
an application.

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 A decree conclusively determines the An order may or may not finally
2. rights and legal obligations of the determine such rights or legal
Determination parties. obligations of the parties.
of rights of
parties

3. Kinds A decree may be preliminary or final or Order cannot be preliminary or final.

partly preliminary or partly final.

4. Appeal Every decree is appealable unless
otherwise expressly provided.
Every order is not appealable, and only
orders enumerated under section 104
of the Code of Civil Procedure, 1908
and Order XLIII, rule 1 of the Code of
Civil Procedure, 1908 are appealable.

5. Second A second appeal lies in before the This is not possible in case of 'order'.
appeal High Court in case some substantial
questions of taw involved in the
decree passed in first appeal. Thus,
there may be two appeals in case of
decree.

6. Court In every suit, there can be only one In a suit or proceeding, a number of
decree except in few exceptional orders may be passed.
cases where preliminary and final
decrees are passed.

LEGAL REPRESENTATIVE [SECTION 2(11)]

The expression 'legal representative' has been defined under section 2(11) the Code of Civil Procedure, 1908 which provides
that:

"Legal representative means a person who in law represents the estate of decreased person, and includes any person
who intermeddles with the estate of the decreased and where a party sues or is sued in a representative character
the person on whom the estate devolves on the death of the party so suing or sued."

It is clear from the provisions under section 2(ii) that the definition of word "legal representative" is wide and inclusive one
and conceives of two distinct categories. Firstly, the heirs or persons, who in law represent the estate of deceased person.
However at par with them and in a class by itself is any person who intermediates with the estate of the deceased. Such a
person is equally a legal representative. The phrase intermeddler with the estate has come to be a term of art and has been
construed as one of the widest amplitude.

This apart, even the dictionary meaning of the word is one of the considerable width. The legal guardian of a minor in
possession of his property, who is himself is a party to the suit along with the said minor, would on the later's death becomes
his representative as an intermeddler with the estate of minor.

This term denotes classes of persons on whom the status of representative is fastened by reason of death of a person whose
estate they are held to represent; Bisheswar Dayal v. Bajarang Bahadur Singh, AIR 1929 Oudh 353.

In Kalu Ram v. Charan Singh, MANU/RH/0004/1994 : AIR 1994 Raj 31 the Rajasthan High Court held that, the decision as to
who is the legal representative for the proceedings is necessarily limited for the purpose of carrying on the proceedings and
cannot have the effect of conferring of any right of heirship to the estate of the deceased. It is true that all legal heirs are
ordinarily also legal representatives but the converse is not true. All legal representatives are not necessarily legal heirs at
will.

It is not necessary that the legal representative should be in possession of any property of the deceased. All that is

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necessary is that he should be a person on whom the estate would devolve. The reviving members of a Hindu Joint Family are
not legal representatives, but they are to be impleaded as such in cases where the doctrine of survivorship does not apply.

The estate does not mean the whole of the estate. The intermeddlers represent the estate even though they are in
possession of parcels of the estate of the deceased and such a 'person who in law represents the estate of a deceased
person' must include different legatees under the will; Andhra Bank Ltd. v. Srinivasan, MANU/SC/0022/1961 : AIR 1962 SC
232: (1962) 3 SCR 391.

Q. Whom you call a 'legal representative' under the provision of C.P.C., 1908?

The definition includes an intermeddler. He is not a trespasser, but assumes representatives capacity in relation to the estate
and not in assertion of known as an executor de son tort and a person would not be an intermeddler unless he has intention
to represent the estate; Ramprasad v. Jamnaprasad, AIR 1962 MB 143. He is recognised as legal representative only to award
relief against the estate in his hands. A person who purchased property under a collusive transaction during the life-time of
the deceased would not be an intermeddler and cannot be added as legal representative.

The persons or class of persons indicated by the expression "legal representative" would depend on the context. Subject to
that qualification it includes properly appointed executors and administrators, heirs-at-law taking by succession or
survivorship, reversioners where the action has been brought by or against the widow representing her husband's estate, a
universal legatee and in some cases persons in de facto possession of the entire estate of the deceased; but it does not
include trespassers, creditors, who have received payment of the debts due from the estate of the deceased, persons dealing
in the ordinary course of business with goods of the deceased received from another, persons who intervene merely for the
purposes of preserving the goods of the deceased or providing for his funeral or for immediate necessities of his family,
legatees of a part of the estate and those taking possession of the property of the deceased from the legatees of a part of
the estate.1

Decree against wrong Legal Representative

Q . When a true legal representative will be bound by a decree passed against the wrong legal representation?
Explain.

A true legal representative will be bound by a decree passed against the wrong legal representative if the following conditions
are fulfilled:

(i) the plaintiff decree-holder has acted bona fide;

(ii) the decree obtained is free from fraud and collusion;

____________
1. 1950 MW N 311.

(iii) the person wrongly impleaded was impleaded in a representative capacity;

(iv) the decree or order was passed against him as representing the estate of deceased;

(v) the plaintiff was ignorant of the facts which operates to displace the title of the supposed legal representative;
and

(vi) the person having the title did not intervene during the pendency of the suit.

Universal legatee under a will executed by the deceased is his legal representative; Lingareddi Sreenivasulu Reddi v. D.
Muniratnam Reddi, MANU/AP/0104/1978 : AIR 1978 AP 173. A mere trespasser, however, cannot be said to be the legal
representative of the decreased as he holds adversely to him and does not intermiddle with the intention of representing the
estate; Nagendranath v. Hyat, MANU/WB/0143/1933 : AIR 1933 Cal 865. A person against whom the estate of the deceased
devolves would be his legal representative, even if he is not in actual possession of the estate; Javarimal v. Mangilal, 1961
Raj LW 132.

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Banco National case

Q. What are the ratio laid down by the Supreme Court in Banco National case, MANU/SC/0149/1989 : AIR 1989 SC
1589?

In Custodian of Branches of Banco National v. Nalini Naique, MANU/SC/0149/1989 : AIR 1989 SC 1589:1989 Supp (2) SCC
275: (1989) 2 SCR 810:1989 (2) UJ 171 (SC) the fact of the case was, the Appellant Bank instituted a suit to recover Rs.
63,315 from V. Naique advanced as loan. Repeated adjournment to another date, the case was taken for hearing on 4th
November, 1970, but on that date the defendant's pleader informed the court of defendant's death at Margaon. The appellant
bank subsequently obtained death certificate from Civil Registration Office stating V. Naique as the legal representative of
deceased original defendant. Another application for condonation of delay supported by affidavit was made for setting aside
abatement of suit. Nalini Naique defendant's widow, contested the application on the ground that news of V. Naique was
made public in the local newspaper and the suit had abated on the expiry of 30/60 days of the death of original defendant as
no application for abatement has been filed in time. Appellant Bank also added the names of four sons, and minor daughters of
deceased. On the ground that appellant had no knowledge about the sons and daughters of the deceased. Nalini Naique
vehemently asserted that application of substitution was not maintainable as it was filed beyond time and she was not the
legal heir of the declared and other legal heirs were not brought on record within time and hence application was to be
rejected.

Decision.--

The Trial Court came to conclusion that the appellant bank came to know about V. Naique's death on 14th November,
1970 from his pleader in the Court and within 4 days thereof application was made under Order XXII, rule 4 which was
not barred by time (including substitution was within time).

In revision application by Nalini Naique the judicial commissioner declared the suit to have abated. Hence the appellant bank
has preferred appeal after obtaining special leave.

The Supreme Court dealing with appeal observed:

"Legal representative" as defined in Code of Civil Procedure means a person who in law represents the estate of a
deceased person, and includes any person who intermeddles with the estate of deceased and where the party sues or
is sued in a representative character the person on whom the estate devolves on the death of the party so suing or
sued. The definition is inclusive in character and its scope is wide, it is not confined to legal heirs only instead it
stipulates a person who may or may not be heir; competent to inherit the property of the deceased but should
represent the estate of deceased person. It includes heirs as well as person who represent the estate even without
title either as executors or administrators in possession of the estate of the deceased. All such persons would be
covered by expression "legal representative". If there are many heirs, those in possession bona fide, without there
being any fraud or collusion, are also entitled to represent the estate of the deceased."

In the present case, Nalini Naique represented half share in the estate left by V. Naique and remaining half was shared by his
sons and daughters, who were subsequently brought on record. Once the name of Nalini Bai is brought on record within time
and the application for setting aside abatement was allowed by trial court, the suit could proceed on merits and subsequent
bringing of legal representative could not render the suit defective.

In the result, the appeal is allowed and the order of judicial commissioner is set aside. Trial court is directed to decide the suit
expeditiously.

Mithailal Singh case

In Mithailal Daesanagar Singh v. A. Devram Kini, (2003) 10 SCC 699 the facts of the case was, Bharat Singh Mithailal and
Nirmala (plaintiffs) filed a suit for specific performance of agreement to sell against defendants. Plaintiff prayed for interim
injunction which was granted by single Judge of the High Court who was trying the suit. On 5th April, 1997, Bharat Singh, one
of plaintiff expired. The defendants filed appeal before Division Bench against single Judge order. On 17th June, 2000, the
date of hearing, the counsel of plaintiff-respondent wrote a letter to two surviving plaintiffs informing about the death of third

(Page 17 of 20)
plaintiff and need for bringing the legal representatives of the deceased on record. The legal representative of deceased took
out chamber summons for being brought on record in the suit.

The defendant objected to prayer for unpleadment as it was barred by time and that suit had abated. Since the cause of
action arising to three plaintiffs was only one, the death of one plaintiff had resulted in the suit having abated in its entirety
and, therefore, the prayer of legal representative was not maintainable. The Division Bench set aside the order of the learned
single judge holding that suit stands dismissed as having abated.

Decision of the Supreme Court

The aggrieved plaintiffs have filed appeal by special leave to Supreme Court. The Supreme Court allowed the appeal and set
aside the judgment of Division Bench. Restoring the order (i.e., 23rd March, 2001) of learned single Judge, Supreme Court
made following observations;

"The abatement results in denial of hearing on the merits of the case, the provision of abatement has to be construed
strictly, on the other hand, the prayer for setting aside abatement and the dismissal consequent upon abatement,
have to be considered liberally. A simple prayer for bringing the legal representative on record without specifically
praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement. So
also prayer by one of the plaintiffs can be construed as prayer for setting aside the abatement of suit in its entirety.
Once the suit has abated as a matter of law, yet legal representative proposing to be brought on record or any other
applicant proposing to bring the legal representatives of deceased party on record would seek the setting aside of an
abatement. A prayer for bringing the legal representatives on record, if allowed, would have the effect of setting aside
the abatement as the relief of setting aside abatement though not asked for in so many words is in effect being
actually asked for and is necessarily implied. The courts have to adopt a justice oriented approach that ordinarily a
litigant ought not be denied an opportunity of having his suit determined on merits unless he has, by gross negligence,
deliberate in action disentitled himself from seeking the indulgence of the court".

In the present case the trial Judge found sufficient cause for condonation of delay in moving application and such finding
having been reasonably arrived and based on material evidence, was not open to interference by the Division Bench.

Shahzadabi case

In Shahzadabi v. Halimbai (since dead) by her LRs., (2004) 6 SCALE 373: MANU/SC/0569/2004 : AIR 2004 SC 3942: 2004 (6)
ALT 43 (SC): 2004 (3) AWC 2598: 99 (2005) CLT 10 (SC): 2005 (3) JCR 233 (SC): JT 2004 (6) SC 172: 2005 (1) Kant LJ 298:
RLW 2004 (3) SC 459: MANU/SC/0569/2004 : (2004) 7 SCC 354 the facts of the case was, the suit was constituted for
recovery of possession of seven rooms. The rooms were in possession of different defendants. The defendants alleged that
they were in possession of seven rooms with consent of Ehsan Ullah. In the suit, the defendant further consented that they
had perfected their title in respect of each of seven rooms by adverse title. The most clinching was that defendant 4 died
during pendency of the suit. Taking into account above circumstance, the trial court held that suit against defendant 4 alone
stood dismissed as abated. The trial court decreed the suit of plaintiff against defendants 1 to 3.

In an appeal by defendants, the Karnataka High Court restored the judgment and decree of Trial Court decreeing the original
suit filed by the plaintiffs for declaration of title to property (seven rooms).

Issue:--The present appeal to Supreme Court made by defendants arises to settle--whether the suit for possession filed by
respondent-plaintiffs stood abated in entirety as held by trial court?

Decision:--The Supreme Court holding the trial court right, explained the law as below:

Order XXII, rule 4 lays down that within the time limited by law, no application is made to implead of legal representatives of a
deceased defendant the suit shall abate as against a deceased defendant. This rule does not provide that by the omission to
implead the legal representative of a defendant, the suit will abate as a whole. What was the interest of deceased defendant
in the case, whether he represented the entire interest or only a specific part is a fact that would depend on the
circumstances of each case. If the interests of the co-defendants are separate, as in case of co-owners, the suit will abate
only as regards the particular interest of the deceased party. Order XXII, rule 4(3) read with Order XXII, rule 11 of the Code

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of Civil Procedure, 1908, where no application is made to implead the legal representative of the deceased respondent, the
appeal shall abate as against the deceased respondent. That, so far as the statute is concerned, the appeal abates only qua
the deceased respondent, but the question whether the partial abatement leads to an abatement of the appeal in entirety
depends upon general principles. If the case is of such a nature that absence of the legal representative of deceased
respondent prevents the Court from hearing the appeal as against the other respondents, then the appeal abates in toto.
Otherwise, the abatement takes place only in the respect of the interest of the respondent who has died. The court cannot
be called upon to make two inconsistent decrees about the same property, and in order to avoid conflicting decrees, the
court has no alternative but to dismiss the appeal as a whole. A distinction must be made between the cases in which there
is specification of shares or interests, and those in which there is no specification of interests. That in cases, where there is
specification of share or interest, the appeal cannot abate as whole. In such cases appeal abates only in respect of the
interest of the deceased and not the whole.

MESNE PROFITS [SECTION 2(12)]

The expression "Mesne Profits" has been defined under section 2(12) of the Code of Civil Procedure, 1908 as under:

"Mesne profits" of property means those profits which the person in wrongful possession of such property actually received or
might with ordinary diligence have received there from, together with interest on such profits but shall not include profits due
to improvements made by the person in wrongful possession.

Therefore, mesne profits are those profits to which a person is entitled but from which he has been kept out by the
defendant. Mesne profits can be claimed only regarding immovable property and not in regard to such property which cannot
be deemed to be immovable property. Mesne profits of property also include those profits which the person in wrongful
possession of such property actually received or might with ordinary diligence have received therefrom, together with interest
on such profits.

Q. What do you mean by expression 'mesne profits'? Explain the object behind awarding such profits with the help
of case laws.

However, it was held in Shambhu Dayal Khetan v. Motilal Murarka, MANU/BH/0026/1980 : AIR 1980 Pat 106 that the
possession of a co-sharer can never be wrongful within the meaning of section 2(12) as he has a right and interest in every
inch of the undivided property. Therefore, one co-sharer cannot claim mesne profits against the other, on the ground that
the latter was in wrongful possession.

Object behind awarding such Profits

The main object is to compensate the person entitled to be in possession of the property. A person who is entitled to actual
possession can claim "Mesne profits". The very foundation for the cause-of-action for 'Mesne profits" is wrongful possession
of the defendant. Thus, for example, the possession of a mortgagor after the date of a foreclosure decree against him is a
wrongful possession.

Measure of Mesne Profits

Q. How 'mesne profit' can be measured with the help of ratio laid down by the Supreme Court in 'Lucy Kochuvareed
case, AIR 1979 SC 1214?

The measure of 'mesne profits' is not what the plaintiff has lost. The measure would be what the defendant has gained by the
wrongful possession, or what he might reasonably have gained by such possession. Thus, if the person charged has left the
land to another, the rent which he has actually received would be liable unless it is proved that a higher rent could have been
obtained with due diligence. The principles which would guide the Court in determining whether mesne profits be allowed or
not, are as follows:--

(i) wrongful possession should not make profit by his possession;

(ii) restoration of status before dispossession of the rightful owner; and

(iii) use to which the rightful owner would have put the land if he was himself in possession.

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Thus, where the tenant fails to deliver the possession of the premises to the landlord on the expiry of his lease, his liability is
that of a trespasser and if the property is not controlled by the Rent Act, the landlord is entitled to mesne profits.

In Nandita Bose v. Ratan Lal, MANU/SC/0558/1987 : AIR 1987 SC 1947: (1987) 1 Cal LT 67 (SO: JT 1987 (3) SC 217: (1987)
2 SCALE 215: MANU/SC/0558/1987 : (1987) 3 SCC 705: (1987) 3 SCR 792: 1987 (2) UJ 483 (SC), it was held that--

"The claim for Mesne profits damages is neither palpably absurd not imaginary. It needs judicial consideration. The
acceptance of the view put forward by the respondent (tenant) may lead to encouraging a tenant who has forfeited
his right to tenancy to carry on a directory litigation without compensating the land lady (landlord) suitably for loss
suffered by him on account of the unreasonable deprivation of the possession of his premises for a long period until he
is able to get possession of the premises through the court."

Lucy Kochuvarred case

In Lucy Kochuvareed v. P. Mariappa, AIR 1979 SC 1214: (1979) 3 SCC 150: (1979) 3 SCR 587, it was observed by the
Supreme Court that, mesne profit is in the nature of damages, no invariable rule governing their award and assessment in
every case, can be laid down and "the court may mould it according to the justice of the case". Even so, one broad basic
principle governing the liability for mesne profits is discernible from section 2(12) of the Code of Civil Procedure, 1908 which
defines 'mesne profits' to mean "those profits which the person in wrongful possession of property actually received or might
with ordinance diligence have received therefrom, together with interest on such profits, but shall not include profits due to
improvements made by the person in wrongful possession". From a plain reading of this definition, it is clear that wrongful
possession of the defendant is the very essence of a claim for mesne profits and the very foundation of the defendant's
liability to pay mesne profits goes with actual possession of the land. That is to say, generally, the person in wrongful
possession and enjoyment of the immoveable property is liable for mesne profits. But, where the plaintiff's dispossession, or,
his being kept or concerted act of several persons, each of them who participates in the commission of that act would be
liable for mesne profits even though he was not in actual possession and the profits were received not by him but by some of
his confederates.

In such a case where the claim for mesne profits is against several trespassers who combined to keep the plaintiff out of
possession, it is open to the court to adopt either of the two courses: It may by its decree hold all such trespassers jointly
and severally liable for mesne profits, leaving them to have their respective rights adjusted in a separate suit for contribution;
or, it may, if there is proper material before it, ascertain and apportion the liability of each of them on a proper application
made by the defendant during the same proceedings.

Amina Beevi case

In Amina Beevi v. Thachi, MANU/SC/0908/2010 : AIR 2011 SC 244 it was held that in any suit regarding rights of a tenant,
the rights of tenant including a question whether a person is a tenant will have to be referred by civil court to the Land
Tribunal and after the Land Tribunal decides the question, the civil court will decide the suit in accordance with the decision
of the Land Tribunal. Thus the suit of the plaintiffs-respondents for declaration that they were tenants in respect of the suit
property and for recovery of possession of the suit property from the defendants and for mesne profit was not barred either
expressly or impliedly.

© Universal law Publishing Co.

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 CHAPTER 2

INHERENT POWERS OF THE COURT

Q. What do you understand by inherent powers of court? Discuss scope and extent of inherent powers?

Inherent powers of the court are generally those powers which are expressly not provided by the Code of Civil Procedure but
conferred on the Court in addition to those which are expressly provides by the Code. The Code of Civil Procedure is a
procedural law and provided for the procedure to be adopted by Civil Courts while administering justice between the parties.
But it is not possible by any enactment or law or Act to provide the provisions for all emerging situations. So some
complementary powers are conferred upon the courts to deal with the emerging situation of a particular nature and the Court
is free to exercise them for administering justice or to prevent the abuse of the process of the Court.

These powers can be exercised ex debitio justitiae in the absence of express provisions in the Code of Civil Procedure.

Inherent powers may be exercised ex debito justitiae in those cases, where there is no express provision in the Code. The
said power cannot be exercised in contravention or in conflict of or ignoring express and specific provision of law. Durgesh
Sharma v. Jayshree, AIR 2009 SC 285.

In case of Mahendra Manilal Nanavati v. Sushila, MANU/SC/0192/1964 : AIR 1965 SC 364: (1964) 66 Bom LR 681: (1964) 7
SCR 267 while expressing its view on the nature of inherent powers of the court, the Apex Court observed that -"the Code of
Civil Procedure is a special piece of legislation to deal with procedural situations of proceeding of trials of civil nature. Under
the Code itself, some hidden powers are conformed on the courts according to the emerging situations during the proceedings
and courts can exercise them as ex debitiae justitiae in the obsence of expressed provisions. But where there are express
provisions itself in the Code, the Courts are barred to invoke such powers."

Sections 148, 149, 151, 152, 153 and 153A of the Code of Civil Procedure, 1908 enact the law relating to inherent powers of
the Court in different circumstances.

Enlargement of Time - Section 148

Where any period is fixed or granted by the court for the doing of any act, prescribed or allowed by this Code, the Court may,
in its discretion, from time to time, enlarge such period not exceeding thirty days in total, even though the period originally
fixed or granted may have expired.

This section provides for enlargement of time by the acting court for the doing of any act, where any particular period is fixed
or granted by the Court to do that act. So, in other words under its inherent powers under this section the Court has power
to enlarge the said period even if the original period fixed has expired.

This section equips the Court in the nature of "inherent powers" whereby the Court can deal with the deficiency of expiry of
time as fixed by the Code of Civil Procedure, 1908 or as allowed by the Code of Civil Procedure, 1908 or as allowed by the
Court itself.

The use of the word "may" in the statute indicates that the power of enlargement of time is discretionary in nature, and the
Court is, therefore, entitled to take into consideration the conduct and circumstances of the situation (case) for such
extension.

Before extension of the time is granted by a court, two conditions must be fulfilled:

(1) A period must have been fixed or granted by the Court; and

(2) Such period must be for doing an act prescribed or allowed by the Code.

Q. What are the conditions to be followed by a court for the enlargement of time?

In Mahanth Ram Das v. Ganga Das, MANU/SC/0027/1961 : AIR 1961 SC 882: (1961) 3 SCR 763, the issue related to deficit
court-fees which was to be pay able by certain date, the appellant unable to pay the court-fees on fixed date sought for
extension of time through an application well before the expiry of time.

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The High Court did not consider the application in view of peremptory order passed earlier by the Division Bench hearing the
appeal, mainly because of the date of hearing of the petition for extension of time, the period had expired.

The Supreme Court held that section 148 clothes the court with ample power to do justice to a litigant if sufficient cause is
made out for extension and the another extending time for payment, though passed after expiry of time fixed, could operate
from the date on which the time fixed expired. In our opinion the High Court was in error of not granting enlargement of time.

In another leading case of Johri Singh v. Sukh Pal Singh, MANU/SC/0245/1989 : (1989) 4 SCC 403: AIR 1989 SC 2073: I
(1991) BC 84 (SC): JT 1989 (3) SC 582: (1989) 96 PLR 617: (1989) 2 SCALE 518: (1989) Supp 1 SCR 17.

The Supreme Court observed that--"the power conferred by the Code under this section is of discretionary nature. The court
may use it before securing the ends of Justice. It cannot be claimed by the party as of right, before exercising such power
the Court should take into account all the facts and circumstances of the case, including the conduct of the applicant."

Payment of Court-fees - Section 149

Where the whole or any part of any fee prescribed for any document by the law for the time being in force relating to court-
fees has not been paid, the Court may, in its discretion, at any stage, allow the person, by whom such fees is payable, to
pay the whole or part, as the case may be, of such court-fee; and upon such payment the document, in respect of which
such fees is payable, shall have the same force and effect as if such had been paid in the first instance.

Power under this section is also discretionary and the Court is supposed to use it judiciously, taking into account the facts of
the case.

Provision of this section provides that "where the whole or any part of any fee prescribed for any document by the law for
the time being in force relating to court-fee(s) has not been paid, the Court may, in its discretion, at any stage, allow the
person, by whom such fee is payable, to pay such court-fee and upon such payment the document, in respect of which fee is
payable, shall have the same force and effect (retrospectively) as if such fee has been paid in the first instance."

Inherent powers of court are based upon the principle of equity and to grant relief to a bona fide applicant, where he is
barred, to do a particular (prescribed) act within a specific period by the circumstances beyond his control.

So, under section 149, the court is empowered to allow a party to make up deficiency of court-fee payable on the plain or
memorandum of appeal, etc., even after the expiry of limitation prescribed for filling of such suit or appeal, etc. The aid of this
power (under section 149), could be taken only when the party was not able to pay the court-fee in circumstances beyond
its control or under unavoidable circumstances.

In case of Buta Singh v. Union of India, MANU/SC/0378/1995 : AIR 1995 SC 1945: (1995) 5 SCC 284: (1995) 3 SCR 359, the
Court held that: "The court would be justified in appropriate cases to exercise the discretionary powers under section 149
after giving due notice to affected party."

In case of Banta Singh v. Union of India, AIR 1988 P&H 308, it was observed that: The word "at any stage" as occurring in
section 149, would only mean at any stage when the matter is pending disposal before the court. A party could not ask for
permission to pay deficiency of court fees even after the disposal of appeal.

Inherent Power under section 151 vis-a-vis Ends of Justice

Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may
be necessary for the ends of justice to prevent abuse of the process of the Court.

Section 151 is a kind of saving clause, where the inherent powers save by this section can be used to secure the ends of
justice.

Section 151 of the Code of Civil Procedure, 1908 lays down:

"Nothing in this Code shall be deemed to limit or otherwise affect the inherent powers of the Court to make such
orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court." Section 101

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 does not confer power on the Court, it only acknowledges the inherent powers of the Court by virtue of its being a
judicial forum to dispense justice.

Generally under its inherent powers under section 181, the Court can recall its own orders and can correct mistakes: can
setaside an ex parte order passed against the party; can issue temporary injunctions; can add, delete or transpose any party
to a suit; can revive execution applications; can allow amendment of pleadings, etc. But only after looking into the facts and
circumstances of the case. A court cannot act under the shelter of such powers arbitrarily but is supposed to invoke its
judicial mind before granting relief to the applicant.

The inherent powers of the Court under section 151 can be exercised:--

(1) For ends of justice.--

The following two rules relating to ends of justice may be noted:

(a) It is in the ends of justice that injury should be remedied and needless expenses and inconvenience
to parties be avoided.

(b) It will not be in the ends of justice to exercise inherent powers if it would interfere with the interest
of third party or cause mischief or in justice.

(2) To prevent the abuse of the process of the Court.--

The power under this head or section 151 can also be exercised to prevent the abuse of the process of a court. Such abuse
may be committed by a court or by a party. The basic principle of section 151 is that, the injustice, if any, so done to the
party must be remedied on the basis of the doctrine actus curae neminem gravabit.

So abuse of process whether it is by way of instituting vexatious, obstructive or dilatory tactics, or by encouraging
multiplicity of litigations, or by practising fraud on the Court, or by trying to secure an undue advantage over the opposite
party, the Court while applying its judicial mind may grant some relief to the applicant, in the interest of justice.

Amendment of judgments, decrees or orders (sections 152, 153 and 153A).

The Rules of Procedure are handmades of justice. Section 151 of the Code gives inherent powers to the court to do justice.
That provision has to be interpreted to mean that every procedure is permitted to the Court for doing justice unless expressly
prohibited, and not that every procedure is prohibited unless expressly permitted. Rajendra Prasad Gupta v. Prakash Chandra
Mishra, MANU/SC/0211/2011 : AIR 2011 SC 1137.

Section 152

Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission
may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

Section 152 can be invoked for the limited purpose of correcting clerical errors or arithmetical error in the judgment. This
section cannot be invoked for claiming a substantial relief, which is not granted in the decree or as a pretext to get the order
altered, which has attained finality. State of Punjab v. Darshan Singh, MANU/SC/0335/2005 : AIR 2005 SC 2435.

Section 153

The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any
proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue
raised by or depending on such proceeding.

Section 153A

Where an Appellate Court dismisses an appeal under rule 11 of Order XLI, the power of the Court to amend, under section
152, the decree or order appealed against may be exercised by the Court which had passed the decree or order in the first
instance, notwithstanding that the dismissal of the appeal has the effect of confirming the decree or order, as the case may

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be, passed by the Court of first instance.

Under these provisions of inherent powers of the court, the clerical or arithmetical mistakes in judgments, decrees or orders
arising out from any accidental slip or omission may be remedied or corrected by the concerned court either of its own motion
(suo motu) or on the application of any of the parties. Provisions under these sections are based on two basic principles: (a)
an act of court should not prejudice any party; and (b) it the duty of the Courts to see that their records are true and they
represent the correct state of affairs.

Illustration(s)

(1) A files a suit against 6 for Rs. 18000 in court. The court passes the decree for Rs. 1800 "as prayed". The decree can be
amended under this section.

(2) A files a suit in court for a declaratory and mandatory injunction. The Court passes decree for "declaration" only as
'prayed'. This kind of mistake can be avoided/remedied under these provisions.

Section 182 is confined to amendments of judgments, order or decrees. Order VI, rule 17 deals with amendments of pleadings.
Section 153, however, confers a general power on the court to amend defects or errors in "any proceeding in a suit" and to
make all necessary amendments for the purpose of determining real question at issue between the parties to the suit or other
proceedings. [Ram Karan Das v. Bhagwan Das, MANU/SC/0286/1964 : AIR 1965 SC 1144: (1965) 67 Bom LR 779: (1965) 2
SCR 186].

In Dwarka Das v. State of Madhya Pradesh, MANU/SC/0088/1999 : (1999) 3 SCC 500: AIR 1999 SC 1031: 1999 (1) CTC 635:
JT 1999 (1) SC 375: 1999 (I) OLR (SC) 388: (1999) 121 PLR 820: (1999) 1 SCALE 76: (1999) 1 SCR 524: 1999 (2) UJ 895
(SC), it was observed that, section 152 of the Code of Civil Procedure, 1908 provides for correction of clerical or arithmetical
mistakes in judgments, decree or orders of errors arising therein from any accidental slip or omission. The exercise of this
power contemplates the correction of mistakes by the Court of its ministerial actions and does not contemplate of passing
effective judicial orders after the judgment, decree or order. The settled position of law is that after the passing of the
judgment, decree or order, the Court or the tribunal become functus officio and thus being not entitled to vary the terms of
the judgments, decrees and orders earlier passed. The corrections contemplated, are of correcting only accidental omissions
or mistakes and not all omissions and mistakes which might have been committed by the Court while passing the judgment
decree or order. The omission sought to be corrected which goes to the merits of the case is beyond the scope of section
152 for which the proper remedy for the aggrieved party is to file appeal or review application. It implies that the section
cannot be pressed into service to correct an omission which is intentional, however erroneous that may be. It has been
noticed that the Courts below have been liberally construing and applying the province of sections 151 and 152 of the Code
of Civil Procedure, 1908 even after passing of effective orders in the lis pending before them. No court can, under the cover
of the aforesaid sections, modify, alter or add to the terms of its original judgment, decree or order. In the instant case, the
Trial Court had specifically held the respondent-State liable to pay future interest only despite the prayer of the appellant for
grant of interest with effect from the date of alleged breach which impliedly meant that the Court had rejected the claim of
the appellant insofar as pendente lite interest was concerned. The omission is not granting the pendente lite interest could
not be held to be accidental omission or mistake as was wrongly done by the Trial Court vide order dated 30th November,
1973. The High Court was, therefore, justified in setting as in the aforesaid order by accepting the revision petition filed by
the State.

Limitations of Inherent Powers

Q. What is the limitation of inherent powers of the courts? Explain with the help of case laws.

It is beyond any doubt that inherent powers of the Courts are of wide amplitude and are exercised by the concerned court at
relevant stage to prevent the abuse of system and to cause proper justice to the parties, but, equally true is that these
inherent powers can be exercises ex debitio justitiae, is only in the absence of express provisions of the Code of Civil
Procedure, 1908 and also applying judicial mind looking into the facts and circumstances of a particular case.

In case of Manohar Lal v. Rai Bahadur Rao Raja Seth Hira Lal, MANU/SC/0056/1961 : AIR 1962 SC 527: (1962) Supp 1 SCR
450, it was observed that--"the restrictions on the inherent powers are not because they are controlled by the provisions of

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the Code, but because it should be presumed that the procedure provided by the legislature is dictated by the interests of
justice."

Following are the limitations on the inherent powers of the Court:

(i) The Court has no inherent power to do what is prohibited (expressly or impliedly) by the Code so as to defeat the
statutory provisions of the law of the land. Section 151 does not invest the Court with jurisdiction over the matters
which are excluded from its cognizance.

(ii) Where specific provisions are contained in regard to particular issue(s) under the Code, the Court has no power to
make such provision(s) meaningless and to devise its own procedure.

(iii) The inherent power is not to be exercised under the applicant has remedy provided elsewhere in the Code but has
neglected himself. Equity aids the vigilant not the indolent. Further, where the applicant did not came to court with
clean hands and has suppressed the facts, the inherent power is not to be exercised.

(iv) The inherent power of the Court is in relation to the procedural matters, for section 151 is part of procedural
Code. This section cannot be used to disturb the substantive rights of the parries.

Ram Chand Sugar Mill case

In Ram Chand and Sons Sugar Mills Pvt. Ltd. v. Kanhaya Lal Bhargava, MANU/SC/0263/1966 : AIR 1966 SC 1899: 1967 BLJR
59; (1967) 37 Comp Cas 42 (SC): (1966) 3 SCR 856, the suit was filed by Kanhya Lal Bhargava for recovery of the sum of Rs.
45,112.94 against Messrs Ram Chand and Sons Pvt. Ltd. Kanhaya Lal (Respondent-plaintiff) filed an application to the Court
under Order XI, rule 21 read with Order XXIX, rule 3 to direct Jugal Kishore, a director of Appellant Company, to appear in
court. The court made an order for the same by 14th December, 1964 Ramchand & Sons (Appellants-defendants) took
member of adjournment to produce Jugal Kishore on the ground that he was ill. The court gave final opportunity to present
Jugal Kishore on 3rd February, 1965. Even so, the appellant took two more adjournments to produce him but did not do so on
ground he was ill. The Trial Court on 16th March, 1965 hearing the arguments held that Jugal Kishore had failed to comply and
it struck off the defence of the appellant.

The High Court, on revision, held that Jugal Kishore did not appeal in court in spite of orders to that effect and the trial court
had jurisdiction to strike out the defence of the appellant. It also negatived the contention of Ramchand and Sons that the
trial court has no power to compel Jugal Kishore to appear in court on ground he was director of the company, and Ramchand
and Sons could not say that one of the directors did not obey the orders of the court.

As the counsel of Appellant Company contended that the Code of Civil Procedure, 1908 provided express power for a court to
strike out defence against a party under specified circumstance, and, therefore section 151 thereof cannot be invoked to
strike out the defence in other circumstances for to do so will be to overside the provisions of the Code of Civil Procedure,
1908. Order XXIX, rule 3 of the Code of Civil Procedure, 1908 does not empower the court to require the personal appearance
of the director other than a director who signed and verified the pleadings within Order XXIX, rule 1, thereof.

The Supreme Court discussed section 151 at length and came to conclusion:

There is nothing in Order XXIX of the Code of Civil Procedure, 1908, which expressly or by necessary implication,
precludes the exercise of the inherent power of the Court under section 151 of the Code of Civil Procedure, 1908. In a
case of default made by a director who failed to appear in court when he was so required under Order XXIX, rule 3 of
the Code of Civil Procedure, 1908 the court can make suitable consequential order under section 151 of the Code of
Civil Procedure, 1908 as may be necessary for the ends of justice or to prevent the abuse of the process of the court.

Observations on section 151:

The inherent power of the court are in addition to the powers specially conferred on the court by the Code. They are
complementary to those powers and, therefore it must he held that the court is free to exercise them for the purposes
mentioned in section 151 of the Code when the exercise of these powers is not in any way in conflict with what has
been expressly provided in the code. Or against the intentions of the Legislature. If there are express provisions

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 exhaustively covering a particular topic, they give rise to necessary implication that no power shall be exercised in
respect of said topic otherwise than in the manner prescribed by the said provisions whatever limitations are imposed
by construction on provision of section 151 of the Code, they do not control the undoubted power of the court
conferred under section 151 of the Code to make a suitable order to prevent the abuse of the process of the court.

Conclusion:

The above stated case is a landmark observation of the Apex Court on the ambit and scope of the inherent powers of
the court under section 151 of the Code of Civil Procedure, 1908; wherein after considering all the facts and
circumstances on record and also the leading cases, the Court observed that:

"The inherent power of the Court under the provisions of sections 148, 149, 151, 153A and of wide
connotations and fill up all the gaps arising out of unavoidable circumstances during the procedural
proceedings. These powers should be exercised carefully and only when there is an anticipation of abuse of
procedure and of justice as well whatever limitations are imposed by construction on the provisions of section
151 of the Code of Civil Procedure, 1908, they do not control the undoubted powers of the Court conferred
under section 151 of the Code of Civil Procedure, 1908 to make a suitable order to prevent the abuse of
process of the court."

Mental Health case

In case of National Institute of Mental Health and Neuro Sciences v. C. Rameswara, MANU/SC/1063/2004 : AIR 2005 SC 242 it
was held that inherent power of court is undoubtedly affirmed by section 151 of the Code. Where the Code deals expressly
with a particular matter, the provision should normally be regarded as exhaustively.

The present appeal is directed against the order of the High Court of Orissa under which the High Court set aside the order of
District judge and allowed the revision and confirmed the order of Lower Court.

In the present case the impugned order of the High Court and the order passed by the Appellate Court arises out of the order
passed by the civil judge Bhubaneshwar. In present case in clause 34 of the agreement, the parties have bound themselves
that any matter arising between them under the said contract, it is the Courts in Calcutta alone which will have jurisdiction.
Once parties bound themselves as such it is not open to them to choose a different jurisdiction as in the present case by
filing the suit at Bhubaneshwar such suit would be in violation of the said agreement.

Held, the suit filed by respondent is the city Civil Court at Bhubneshwar would not be valid and the Courts at Calcutta alone
would be competent court to adjudicate the dispute between the parties and hence finding to the contrary given by courts
below is hereby set aside.

National Textile Corpn. Ltd. v. Hari Box Swalram, 2004 AIR SCW 2067. The case relates to purchasing of qualities of cloth from
Finally Mills and Gold Mohur Mills situated in Bombay. These mills were taken over by National Textile Corporation (a Central
Government undertaking). Since a substantial part of contract of purchase remained unexecuted, the writ petitioners asked
the appellants, (M.D. of N.T.C. Ltd.) to deliver the balance quantity of cloth of pending contracts and adjust all sums of
money which had been paid by way of advance.

The appellant Company cancelled all outstanding contracts on the date of take over, and the deposits made with erstwhile
management where not specifically marked towards any of invoice of packed material of such could not be adjusted against
any future delivery and petitioners to claim the amount from erstwhile management.

The writ petitioners securing no relief from appellants, filed a writ petition praying for writ of mandamus be issued commanding
the appellants to produce the entire records relating to withholding delivery of goods pursuant to contract. The writ petition
was filed in Calcutta High Court. The writ petition was contested on behalf of appellant corporation by the practical officer
N.T.C. Ltd. who filed a detailed counter affidavit containing pleas:

(1) the contract was entered at Bombay, goods were to be delivered from Company in Bombay, payments were to be
made at Bombay, hence the entirety of cause-of-action arose in Bombay. The instant writ petition seeking to enforce
such cause-of-action which has arisen wholly outside the said jurisdiction is not enforceable at the High Court at

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 Calcutta.

(2) The cause-of-action having arisen in 1983 when the Take Over Act, came into force and sought to be enforced in
1989 after expiry of 6 long years is clearly belated. The petitioners (respondents) being guilty of laches no relief should
be granted the application is barred by law of limitation.

The Division Bench of Calcutta High Court by an order dated 4th August, 2000 allowed the appeal preferred by respondents-
cum-petitioners and the order dated 11th April, 1997 of the learned single Judge dismissing writ petition was set aside.

Against the order of Division Bench Calcutta High Court appeals by special leave have been preferred to Supreme Court.

The Supreme Court to dispose the question of jurisdiction in appeal took aid from O.N.G.C. v. Utpal Kumar Basu,
MANU/SC/0759/1994 : (1994) 4 SCC 711: 1994 (3) ALT 5 (SC): (1995) 1 Cal LT 5 (SC): JT 1994 (5) SC 1: (1995) 109 PLR
245: (1994) 3 SCALE 90: (1994) Supp 1 SCR 252. Wherein it was held that merely because petitioner submitted the tender
and made representation from Calcutta in respects to an advertisement inviting tenders which were to be considered at New
Delhi and the work was to be performed in Hazira (Gujarat) and also received replies to the fax messages at Calcutta, could
not constitute facts forming an integral part of cause-of-action. It was held that the High Court could not assure jurisdiction
on the ground that the writ petitioner resides in or carries on business from a registered office in state of West Bengal.

In the present case, the textile mills are situated in Bombay and the supply of cloth was to be made by the ex-factory at
Bombay. The learned single Judge held that the Calcutta High Court had no jurisdiction to entertain the writ petition. The
Division Bench has reversed the finding on the ground that concluded contract had come into existence which could be
cancelled only after giving an opportunity of hearing and consequently the question of revocation of the contract at its
Calcutta address would constitute a cause-of-action. The view taken by Division Bench is wholly erroneous in law. The
Calcutta High Court had no jurisdiction to entertain the writ petition.

Hanil Ena Textile Ltd. v. Puromatic Filters Pvt. Ltd., 2004 AIR SCW 2914, Appellants (Hanil Era Textile Ltd.) situated at
Matunga, Bombay, placed a purchase order with M/s. Puromatic Filters Pvt. Ltd., Bombay for supply of 136 numbers of coarse
and fine filters each. Thirty per cent of amount was paid as advance. The agreement contained clause relating to jurisdiction
stating:

"Any legal proceeding arising out of the order shall be subject to jurisdiction of the Courts in Mumbai."

The dispute in the present appeal is regarding the territorial jurisdiction of the Court at Delhi to try the suit. Para 8 of plaint is
relevant for the purpose.

"Para 8" That the cause-of-action has arisen at Delhi as the ordered goods were delivered through their transporters
M/s. Transport Corpn. Ltd., the value of goods was to be paid by (appellant-defendant) to the plaintiff at Delhi and as
such this Hon'ble, Court is having jurisdiction to try and adjudicate upon the matter in dispute".

The A.D.J. decided the dispute on basis of allegations made in plaint that goods were delivered to the defendants at Delhi on
the basis of Form CT-3, the court at Delhi had territorial jurisdiction to try the suit. The appeal preferred by the appellant
against the said order was dismissed by the High Court on 21st December, 2001.

Against the judgment and order dated 21st December, 2001 appeal is preferred against the appellant's application under Order
VII, rule 10 of the Code of Civil Procedure, 1908 passed by A.D.J. Delhi on 28th March, 1998 was dismissed.

The Supreme Court to dispose the appeal reconsiders the transaction as made out in plaint.

"M/s. Hanil Textile Ltd. sent from CT-3 and thereafter M/s. Puromatic Filters Ltd. despatched the goods from their
factory in Delhi via Transport Corp. of India as per direction of Hanil Tex. Ltd. original document were sent to the
Branch office of Puromatic Ltd. at Goregaon (W), Bombay but Hanil Textile Ltd. did not retain the document from the
branch office of Puromatic Filter Ltd. Bombay and illegally and unauthorisedly took the delivery of the goods from
Transport Corp. of India. These averments show that purchase of goods was made by Hanil Textile Ltd. at Bombay and
the same was accepted by Puromatic Filters branch office at Bombay. The advance payment was made at Bombay:
"Thus a part of cause-of-action arose at Bombay".

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The remaining portion of claim which M/s. Puromatic Filter State that since goods were despatched from Delhi through
Transport Corp. India Ltd. led to rise of cause-of-action at Delhi thus Delhi court has jurisdiction. To this Supreme Court held:

Having regard to the fact that other was placed by defendant at Bombay, the said order was accepted by the branch
office of plaintiff at Bombay; the advance payment was made at Bombay and as per plaintiff's case final payments
were to be made at Bombay; there was clear intention to confine the jurisdiction of the courts in Bombay to the
exclusion of all other courts. The court of A.D.J. Delhi had, therefore, no territorial jurisdiction to try the suit. The
order of Delhi High Court dated 21st December, 2001 is also set aside the plaint filed by Puromatic Filter Ltd. is sent to
be presented before competent court of Bombay.

M/s. Kusum Ingots and Alloys Ltd. v. Union of India, 2004 AIR SCW 2766, the facts of the case are that M/s. Kusum Ingots
Ltd., has its registered office at Mumbai, obtained a loan from S.B.I. branch at Bhopal. Respondent 2 issued a notice for
repayment of the said loan from Bhopal purported to be in terms of the provisions of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002.

Kusum Ingots Ltd. filed writ petition questioning vires of the Securitisation Act, 2002 before Delhi High Court which was
dismissed on ground of lack of territorial jurisdiction.

Submissions:

(1) Kusum Ingots Ltd. submitted before High Court that the constitutionality of parliamentary Act was in question, the
High Court of Delhi had requisite jurisdiction.

(2) The counsel of respondent states that no cause-of-action arose within territorial jurisdiction of the High court of
Delhi, the writ petition has rightly not been entertained.

The issue of territorial jurisdiction came before Supreme Court which going through number of its earlier decided cases
observed:

The expression used in clause (2) of article 226 of the Constitution of India, indisputably even if a small fraction of "cause-of-
action" accrues within the jurisdiction of the court, the court will have jurisdiction. "Cause-of-action" refers to the ground set
forth in the plaint, or media upon which the plaintiff asks the court to arrive at a conclusion in his favour. Passing of a
legislation by itself in our opinion do not confer any such right to file a writ petition unless a cause-of-action arises therefore.
The litigant has the right to go a court where part of his cause-of-action arises. The place where an appellate order or
revisional order is passed may give rise to a part of cause-of-action although the original order was passed at a place outside
the said area, when a part of cause-of-action arises within one or the other High Court, it will be for the petitioner to choose
his forum.

Exclusion of Jurisdiction of Civil Courts.--

Principal jurisdiction of Civil Courts for entertaining the suits of civil nature is not unlimited but subject to express or, implied
restriction in this respect.

In a leading, classic decision of Dhulabai v. Stale of Madhya Pradesh, MANU/SC/0157/1968 : AIR 1969 SC 78: (1968) 3 SCR
662: (1968) 22 STC 416 (SC), after considering a number of cases, the following principles were summarized by the Supreme
Court--

(1) Where a special statutes bars the adjudication of Civil Courts, the exclusion of Civil Court must be held to be
excluded. Such a provision, however, does not exclude those case where the provision of a particular act have not
been complied with or the statutory Tribunal has not acted in conformity with fundamental principles of judicial
procedure.

(2) Where there is an expressed and exclusive bar on the adjudication of a Civil Court.

(3) The provisions of a particular court cannot be challenged before the Tribunals on the grounds of ultra vires, but
even the High Court cannot go into the question on a revision or references from the decisions of Tribunals.

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(4) When a provision is already declared as unconstitutional or constitutionality of any provision is to be challenged, a
suit lies.

(5) But where the particular act, which excludes jurisdictions of Civil Court contains no machinery for refund of tax
collected in excess of constitutional limits or is illegally collected, a suit lies.

© Universal law Publishing Co.

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 CHAPTER 3

JURISDICTION OF CIVIL COURTS

Meaning

Q. What is the meaning of the word 'jurisdiction'?

In general sense and also in legal diction, jurisdiction means "to hear and determine a cause applying judicial powers in relation
to it." So jurisdiction can be termed as to decide a particular causes of action/dispute of civil nature where the competent
court having right to hear and determine it, disposes of the issue/dispute acting under its judicial powers.

In case of Official Trustee v. Sachindra Nath Chatterjee, MANU/SC/0240/1968 : AIR 1969 SC 823: (1969) 3 SCR 92, after
referring to various decisions, the Supreme Court observed, "jurisdiction must include the power to hear and decide the issue/
dispute, the authority to hear and decide the particular controversy that has arisen between the parties."

Section 9 - Courts to try all suits

"The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting
suits of which their cognizance is expressly a impliedly barred".

Explanation I.--

A suit in which the right to property or to office is contended is a suit of civil nature, notwithstanding that such right
may depend entirely on the decision of the questions as to religions rites or ceremonies.

Explanation II.--

For the purposes of this section, it is immaterial whether or not any fee is attached to the office referred in
Explanation I or whether or not such office is to a particular office.

Section 9 of the Code of Civil Procedure, 1908 confers the power upon the civil court to try all suits of civil nature unless
barred by the express provisions. For the adjudication of such suits of civil nature as described under section 9, it is not the
status of the parties to the suit, but the subject-matter of it, which determines whether or not the suit is of civil nature.

Again the parties are not at liberty to choose or by mutual consent to diminish the jurisdiction of a competent court. The
principle is well-settled that consent cannot confer or take away jurisdiction of a court.

In case of D. Joshi v. High Court of Judicature at Bombay, AIR 2011 SC 848 it was held that "all courts are Tribunals. But
Tribunal, unless it has all trappings of court is not court".

In case of Satguru Construction Company Pvt. Ltd. v. Greater Bombay Co-operative Bank Ltd., (2007) 5 AIR Bom 37 it was
held that non-pleading of issue of jurisdiction at initial stage will not clothe Civil Courts with jurisdiction when expressly barred
under any Act.

For jurisdiction of court the existing law on date of institution of suit or on date on which suit comes up for hearing, will be
applied. Further if Court has jurisdiction to try the suit when it comes for disposal, it then cannot refuse to assume jurisdiction
by reason of the fact that it has no jurisdiction to entertain it at the date of institution of suit. Sudhir G. Angur v. M.
Sanjeev, MANU/SC/1647/2005 : (2006) 1 SCC 141.

It was observed in case of Chiranjilal Shrilal v. Jasjit Singh, MANU/SC/0496/1993 : (1993) 2 SCC 507: 1993 (2) ALT 13 (SC):
1993 (2) BLJR 1193: JT 1993 (2) SC 341: (1993) 2 SCALE 146: (1993) 2 SCR 454 that: "If the Court has no inherent
jurisdiction, neither acquiescence nor waiver nor estoppel can create it." It means that a defect in jurisdiction goes to the
root of the matter and strikes at the authority of the court to pass a decree. A decree passed without jurisdiction is non est
and its validity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution
or in collateral proceedings.

It simply implies is that the court should have competent authority or jurisdiction to set off the dispute in question.

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In the leading case of Kiran Singh v. Chaman Paswan, MANU/SC/0116/1954 : AIR 1954 SC 340: 1954 (2) BLJR 426: (1955) 1
SCR 117, the Supreme Court observed: "A defect of jurisdiction......strikes at the very authority of the court to pass any
decree, and such a defect cannot be cured even by consent of the parties."

In J. Kumaradasan Nair v. IRIC Sohan, MANU/SC/0186/2009 : AIR 2009 SC 1333, the Supreme Court held that mentioning of a
wrong provisions on non-mentioning of any provisions of law would, by itself, be not sufficient to take away the jurisdiction of
a court if it is otherwise vested in it in law. While exercising its power, the court will merely consider whether it has the
source to exercise such power or not. They will not apply the beneficient provisions in a padantic manner. When the
provisions are meant to apply and in fact found to be applicable to the facts and circumstances of a case, there is no reason
as to why the court will refuse to apply the same only because a wrong provisions has been mentioned.

In Shiv Kumar Sharma v. Santosh Kumari, MANU/SC/7929/2007 : AIR 2008 SC 171, the Supreme Court held that the Courts in
India exercise jurisdiction both in equity as well as law but exercise of equity jurisdiction is always subject to the provisions of
law. Such jurisdiction can be exercised only when no law operates in the field.

Section 9 of the Code of Civil Procedure, 1908 and meaning of Suits of Civil Nature

As we have earlier seen that under section 9 of the Code courts are authorised to entertain the suit of civil nature (if name
adjudicate them) unless barred expressly.

A thorough interpretation of section 9 puts two basic conditions to test that whether a Civil Court has jurisdiction to try a
suit or not.

(i) The suit must be of civil nature; and

(ii) The cognizance of such a suit should not have been expressly or impliedly barred.

So a suit to establish a person's right to enter a religious place and suit to restrain the defendant from entering a place of
worship are both, entertainable being suits of civil nature. The basic test is that whether a person's civil right is affected or
abridged by a particular act of a party or an institution and secondly whether the Courts are expressly barred to take such a
particular issue for adjudication or not. Once it is settled that the suit/dispute is of a civil nature and the concerned court is
not expressly barred to adjudicate the issue in question, the Court is supposed to have competent jurisdiction to determine
the issue.

Explaining the concept of jurisdiction of Civil Court(s) under section 9, in P.M.A. Metropolitan v. M.M. Marthoma,
MANU/SC/0407/1995 : AIR 1995 SC 2001: JT 1995 (5) SC 1: (1995) 4 SCALE 1: 1995 Supp (4) SCC 286: (1995) Supp 1 SCR
542 (a leading decision), the Supreme Court stated:--The section would, therefore, be available in every case where the
dispute was of the characteristic of affecting one's rights which are not only civil but of civil nature."

Suits of Civil Nature - Illustrations

(a) suits relating to right to property;

(b) suits relating to right of worship;

(c) suits relating to right of religious procession;

(d) suits relating to right of shares in offerings;

(e) suits relating to civil wrongs;

(f) for breach of contract;

(g) suits for rights to hereditary offices.

Not of Civil Nature

(a) Suits involving principally the question of caste;

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 (b) Suits involving principally religious rites and ceremonies;

(c) Suits against expulsion from caste;

(d) upholding mere dignity or honour, etc.

KINDS OF JURISDICTION

Q. Explain the kinds of jurisdiction of a court.

Jurisdiction of a Court may be classified under the following categories:

(1) Territorial or local jurisdiction.--

Every court is competent to adjudicate the matters/issues falling under the local limits of its jurisdiction. For example,
the District Judge has to exercise the jurisdiction within his district and not outside it unless barred by pecuniary
jurisdiction. And the High Court has jurisdiction over the issues relating to the concerned state.

For the purpose of invoking the jurisdiction of the Court only because two causes-of-action joined in terms of the
provisions of the Code of Civil Procedure, 1908, the same would not mean that thereby the jurisdiction can be
conferred upon a court which had jurisdiction to try only the suit in respect of one cause-of-action and not the other.
Recourse to the additional forum, however, may be taken if both the causes of action arise within the jurisdiction of
the court which otherwise had the necessary jurisdiction to decide all the issues; Dhodha House v. S.K. Maingi,
MANU/SC/2524/2005 : AIR 2006 SC 730: 2006 (1) ALD 138 (SC): 2006 (1) AWC 864 (SC): 2006 (1) BLJR 29: JT 2006
(1) SC 123: (2006) 1 MLJ 36 (SC): 2006 (32) PTC 1 (SC): RLW 2006 (1) SC 543: MANU/SC/2524/2005 : (2006) 9 SCC
41.

(2) Pecuniary jurisdiction.--

The Code provides that a court will have jurisdiction only over those suits, the amount or value of the subject matter
of which does not exceeds the limit of the jurisdiction. Thus, a Presidency Small Causes Court cannot entertain a suit
in which the amount claimed exceeds Rs. 1000.

(3) jurisdiction as to subject-matter.--

A court cannot entertain and adjudicate an issue which does not fall within its competency as to competency over the
matter. Thus, the Presidency Small Causes Court has not jurisdiction to try suit, for specific performance of a
contract, partition of immovable property for closure or redemption of a mortgage, etc.

Similarly, in respect of testamentary matters, divorce cases, probate proceedings, the Court of District Judge has
exclusive jurisdiction.

(4) Original and appellate jurisdiction.--

In the exercise of original jurisdiction, a court entertains and decides suits and in its appellates jurisdiction, it
entertains and decides appeals. District Courts and High Court have original as well as appellate jurisdiction.

In, State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao (D) by LRs., MANU/SC/0238/2000 : AIR 2000 SC 2220: 2001
(1) BLJR 473: JT 2000 (4) SC 157: (2000) 3 SCALE 61: MANU/SC/0238/2000 : (2000) 3 SCC 689: (2000) 2 SCR 937,
the facts are, the Manjeti Venkata Rao and Manjeti Kanta Rao filed a suit against the State of Andhra Pradesh for a
declaration that the property comprised in R.S. No. 400 with a building thereon in which plaintiffs have a half share is
not subject to any public or charitable trust of endowment and that the order G.O. Ms No. 1501, dated 12th July,
1979 is void.

The Trial Court framed several issues and on all issues held against the plaintiff. The two appeals filed in High Court against
the judgment of Trial Court were dismissed. There upon two Letter Patent Appeals were filed. The contentions in Letter
Patents Appeal were--

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 (i) The order under section 77 of the A.P. Charitable and Hindu Religious Endowment, 1966 does not affect a decision
rendered in civil suit No. 11/67 inasmuch as question of title had been raised in the suit.

(ii) The order under section 77 of the A.P. Religious Endowment Act, 1986 and the suit had been decided by
competent authority and, therefore proceeding under section 77 of the A.P. Religious Endowment Act could not
operate as res judicata.

(iii) To challenge an order under section 77 of the A.P. Religious Endowment Act, 1986, a suit was required to be filed
under section 78 of the A.P. Religious Endowment Act, the Court would construe the suit out of which appeal itself
arises under section 77 of the Act.

The Supreme Court made following observations:

The suit was filed prior to initiation of proceedings under section 77 of the A.P. Religious Endowment Act, 1986 and,
therefore, the said suit cannot be a suit contemplated under section 78 of the A.P. Religious Endowment Act, 1986.
The order under section 77 is conclusive which determined the issue that the suit property is not subject to public
charily or endowment unholding the case of defendants 4 to 12 that property is private property and is not an
endowment. Such a question could have been decided in a proceeding under section 77(1)(d) of the A.P. Religious
Endowment Act, 1986 as to whether any property is endowment and, if so, whether it is charitable or religious
endowment. A person aggrieved could file a suit under section 78 of the A.P. Religious Endowment Act, 1986. Since no
suit was filed the declaration made by Deputy Commissioner under section 77 and order made by him concluded the
issue whether or not the suit property is charitable or religious endowment. With the coming in force of the A.P.
Religious Endowment Act, 1986, the Deputy Commissioner considered the very question raised in the suit as to nature
of the suit property and held that it is private property and having concluded as public charity or endowment that
conclusion became final.

The Deputy Commissioner having followed due procedure made the order and that order could have been challenged as
provided under section 78 of the A.P. Religious Endowment Act, 1986 by way of suit or by an appeal when neither of these
courses were adopted, the order made by the authority in its special jurisdiction must be held to be conclusive and final.
Therefore, view taken by High Court appears to be correct and the appeals are dismissed.

On the point of the law is section 9, the Supreme Court stated:

"The normal line of law is the Civil Courts have jurisdiction to try all suits of civil nature except those of which
cognizance by them is either expressly or impliedly excluded as provided under section 9 of the Code of Civil
Procedure, 1908 but such exclusion is not readily inferred and presumption to be drawn must be in favour of the
existence rather than exclusion of jurisdiction of the Civil Courts to try civil suit. The test adopted in examining such a
question is:

(i) Whether the legislative intent to exclude arises explicitly or by necessary implication?

(ii) Whether the statute in question provides for adequate and satisfactory alternative remedy to a party
arrived by an order made under it?

Q. Whether the following suits are cognizable by civil court?

(a) Suit for exclusion of member from caste.

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

(c) Suit relating to caste property.

(d) Proceeding for dissolution of Muslim Marriage.

Where the statute gives finality to the order of the special tribunals jurisdiction of the Civil Courts must beheld to be excluded
if there is adequate remedy to do what the Civil Courts would normally do in suit. Such provision, however does not exclude
those cases where the provisions of the particular Act, have been complied with or the statutory tribunal has not acted in

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conformity with fundamental principles of judicial procedure.

In Gundaji Satwaji Shinde v. Ram Chandra Bhikaji Joshi, MANU/SC/0307/1978 : AIR 1979 SC 653: (1979) 2 SCC 459: (1979) 2
SCR 586, the Supreme Court observed as that, the dispute in the suit was whether the Civil Court has jurisdiction to decide
that: "Plaintiff being agriculturist or not". The plaintiff's contention was that the fact whether he was an agriculturist or not
was an issue which could be decided by the competent authority, i.e., "Mamlatdar", and that the Civil Courts would have no
jurisdiction to decide that issue at all.

The Trial Court and later High Court both rejected the contentions of the plaintiff who came to the Supreme Court.

Decision by Supreme Court:

Both on principle and on authority there is no escape from the conclusion that where in a suit properly constituted and
cognizable by the Civil Court upon a contest an issue arises which is required to be decided by competent authority
under the Tenancy Act, the jurisdiction of the Civil Court to decide or deal with the same is not only ousted but the
Civil Court is under a statutory obligation to refer the issue to the competent authority under the Tenancy Act, to
decide the same and thus dispose of the suit in accordance with the decision of the competent authority.

It is incumbent upon the Civil Court to refer the issue to Mamlatdar (competent authority) under the Tenancy Act and the
Civil Court has no jurisdiction to decide and deal with the same.

In Shriram City Union Finance Corp. v. Rama Mishra, MANU/SC/2500/2000 : AIR 2002 SC 2402: (2002) 9 SCC 613, the facts of
the case was, the respondent obtained a bus on lease for a period of 36 months. The lease period came to an end on 14th
August, 2000. The respondent defaulted in making the payment of instalments in spite of demand made by appellants.

As per clause 33 of agreement (b/w appellant and respondent) the matter was referred to sole arbitrator, an advocate of
Calcutta for deciding dispute. In spite of notice respondent did not appear. The appellant made an application to city Civil
Court for appointment of receiver for taking possession of the said vehicle, who was appointed. The arbitrator passed an
award in favour of appellant and consequently the receiver took over the possession of the said vehicle in December 1998.

The respondent filed suit for injunction in the court of civil judge (junior division) Bhubaneshwar challenging that repossession
of vehicle was illegal and redeliver direction along with fixing rescheduling of payment due as against the respondent. The
appellant raised an important question of jurisdiction as specific clause of agreement stated that court at Calcutta will have
jurisdiction to decide a dispute arising out of this conflict.

© Universal law Publishing Co.

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 CHAPTER 4

RES SUBJUDICE AND RES JUDICATA

RES SUBJUDICE: STAY OF SUIT

Q. What do you mean by the expression 'res subjudice'?

Section 10 of the Code of Civil Procedure, 1908 deals with stay of suits. According to this glaring provision, no court of
competent jurisdiction shall proceed with the trial of any such suit in which the matter in issue (directly and substantially) is
pending already before a competent court of same jurisdiction, the subsequent trial of the suit is put under veil, i.e., is
abated.

Section 10 reads thus:

"No court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a
previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under
the same title where such suit is pending in the same or any other court in India having jurisdiction to grant the relief claimed,
or in any court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or
before the Supreme Court."

So, if we read the statutory provision of section 10 and interpret it in liberal way we find that a subsequent filed suit may be
stayed if:

(i) the subsequent suit is directly and substantially in issue related to the previously filed suit; and

(ii) title, issue and parties are the same; and

(iii) the suit is filed before a competent court of same jurisdiction or having competent jurisdiction to try such suits
either within the limits of India or outside India or before the Supreme Court.

The basic object of this provision is to prevent the courts of concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations in respect of the same issue, cause-of-action, same subject-matter and the relief
prayed for. The policy is to bring down the unnecessary workloads of the courts and also to prevent the multiplicity of
frivolous litigations. It also aims to avert in convenience to the parties and gives effect to the Rule of Res judicata.

Q. What are the objects behind the provision of 'res subjudice'?

The object underlying section 10 is to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits in
respect of the same matter in issue. The object underlying section 10 is to avoid two parallel trials on the same issue by two
courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously
instituted suit. The language of section 10 suggests that it is referable to a suit instituted in the Civil Court and it cannot
apply to proceedings of other nature instituted under any other statute. The object of section 10 is to prevent courts of
concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in
issue. The fundamental test to attract section 10 is, whether on final decision being reached in the previous suit, such
decision would operate as res judicata in the subsequent suit. Section 10 applies only in cases where the whole of the
subject-matter in both the suits is identical. The key words in section 10 are "the matter in issue is directly and substantially
in issue" in the previous instituted suit. The words "directly and substantially in issue" are used in contra-distinction to the
words "incidentally or collaterally in issue". Therefore, section 10 would apply only if there is identity of the matter in issue in
both the suits, meaning thereby, that the whole of subject-matter in both the proceedings is identical. National Institute of
M.H. & N.S. v. C. Parameshwara, MANU/SC/1063/2004 : AIR 2005 SC 242: 2005 (2) ALD 49 (SC): 2005 (2) AWC 1865 (SC):
2005 (1) CTC 156: 2005 (2) JCR 93 (SC): 2005 (1) Kant LJ 486: (2005) I LLJ 566 (SC): 2005 (2) Mah LJ 1:
MANU/SC/1063/2004 : (2005) 2 SCC 256.

But subject to provisions and conditions, there is no bar (as is clear from explanation appended to section 10) on the power
of an Indian Court to try a subsequently instituted suit if the previously instituted suit is pending before a foreign court.

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Res judicata relates to the plaintiff's duty to put forth all the grounds of attack in support of his claim, Alka Gupta v. Narender
Kumar Gupta, MANU/SC/0793/2010 : AIR 2011 SC 9.

About the enforcement of section 10, the Supreme Court, observed in case of Manohar Lai v. Rai Bahadur Rao Raja Seth Hira
Lal, MANU/SC/0056/1961 : AIR 1962 SC 527: (1962) Supp 1 SCR 450.--"As soon as the conditions appended to section 10 are
satisfied, a court cannot proceed with the subsequently instituted suit since the provisions contained in section 10 are
mandatory in nature and no direction is left with the Court."

Q. Explain the essential conditions to be satisfied for the applicability of section 10, C.P.C.

In P.V. Shetty v. B.S. Giridhar, MANU/SC/0478/1981 : AIR 1982 SC 83: (1982) 3 SCC 403, it was held that for the application
of this section, the following conditions must be satisfied:

(1) The present section applies only to suits and not to applications and complaints.

(2) There must be two suits, one previously instituted and other subsequently instituted.

(3) The matter in issue in subsequent suit must be directly and substantially in issue in the previous suit.

(4) The parties in the previous suit and the subsequent suit are the same.

(5) The parties are litigating under the same title in both the suits.

(6) The previously instituted suit must be pending in the same court in which the subsequent suit is brought or in any
other court in India or in any court beyond the limits of India established continued by the Central Government or
before the Supreme Court.

(7) The Court in which the previous suit is instituted must have jurisdiction to grant the relief claimed in the
subsequent suit.

In Rajesh Singh v. Manoj Kumar, MANU/MP/0216/2009 : AIR 2010 MP 16, the respondent plaintiff earlier had filed a civil suit
for declaration in respect of the property in dispute. Present petitioner filed his written statement in the said suit denying the
title of the plaintiff. Plaintiff, therefore, filed another suit under the provisions of the Madhya Pradesh Accommodation Control
Act against the present petitioner for ejectment. In said suit also present petitioner denied the title of the plaintiff. In view of
the common issue, whether the plaintiff is the owner of the suit property, the defendant filed an application under section 10
of the Code of Civil Procedure for staying the subsequent suit for ejectment. Said application stood dismissed by the order
which is impugned in this petition. Therefore, it is held that section 10 of the CPC will not be attracted as the question of title
in suit for ejectment is not directly and substantially in issue but is incidental and collateral.

Matter in Issue:

As regards the words "matters in issue" as occur in the section, it means the entire matter in controversy in the suit
and not merely one of the several issues. In other words, identity of some of the issues in both the suit is not
sufficient to attract the section. Thus, the fact that the subject-matter of the previous suit is overlapping with the
subsequent suit will not attract the section. Where the earlier suit was for recovery of rent for certain period and
subsequent suit is for recovery of rent for subsequent years and ejectment, the matter in issue in the two suits would
not be deemed to be same and section 10 would not apply; Bhola Prasad v. Jagpata, 1954 ALJ 696, on consolidation of
suits, where the cause-of-action is between the same parties and where issue is almost same, the Allahabad High
Court held in case of P.P. Gupta v. East Asiatic Comp., MANU/UP/0036/1960 : AIR 1960 All 184 that--

"A court has inherent power to consolidate different suits between the same parties in which the matter in
issue is substantially the same."

In Pukhraj D. Jain v. G. Gopalakrishna, (2004) 4 SCALE 688: MANU/SC/0364/2004 : AIR 2004 SC 3504: 2004 (3) A WC 2214
(SC): 2004 (3) CTC 308: JT 2004 (5) SC 329: (2004) 3 MLJ 183 (SC): (2004) 7 SCC 251, it was held by the Supreme Court
that, the proceedings in the trial of a suit have to be conducted in accordance with provisions of the Code of Civil Procedure,
1908. Section 10 of the Code of Civil Procedure, 1908 no doubt lays down that no court shall proceed with the trial of any

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suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same
parties or between parties under whom they or any of them claim litigating under the same title where such suit is pending in
the same or any other court in India having jurisdiction to grant the relief claimed. However, mere filing of any application
under section 10 of the Code of Civil Procedure, 1908 does not in any manner put an embargo on the power of the court to
examine the merits of the matter. The object of the section is to prevent courts of concurrent jurisdiction from simultaneously
trying two parallel suits in respect of the same matter in issue. The section enacts merely a rule of procedure and a decree
passed in contravention thereof is not a nullity. It is not a litigant to dictate to the court as to how the proceedings should
be conducted, it is for the court to decide what will be the best course to be adopted for expeditious disposal of the case. In
a given case the stay of proceedings of later suit may be necessary in order to avoid multiplicity of proceedings and
harassment of parties. However, where subsequently instituted suit can be decided on purely legal points without taking
evidence, it is always open to the court to decide the relevant issues and not to keep the suit pending which has been
instituted with an oblique motive and to cause harassment to the other side.

Gupte Cardiac Care Centre and Hospital (Petitioner) v. Olympic Pharma Care Pvt. Ltd. (Respondent), 2004 AIR SCW 2427

M/s. Gupte Cardiac Hospital, Nasik filed a suit (dated 20th December, 2001) in the Court of Civil Judge, Nasik against Olympic
Pharma Care Ltd. Delhi, the dispute in litigation was that 'Heart and Lung Machine' marketed by 'Olympic Pharma Care' from
Germany was delivered and installed in the hospital. The performance of machine was not found satisfactory. Gupte Cardiac
Care Hospital in the plaint claimed recovery of Rs. 28,3500 (advance compensation equivalent to additional amount spent on
purchasing another machine and interest on two sums).

Olympic Pharma Ltd. filed another suit in the High Court of Delhi (Original side) to claim Rs. 20 lakh alleged to be outstanding
by way of balance price of machine and interest thereon (dated 10th January, 2002).

The issue disputed at Bar is that the two suits arise out of the same transaction. Cause-of-action of one party arrayed as
plaintiff would be its defence in the suit where it is arrayed as defendant. There are two plaintiffs and two defendants in the
suit at Nasik while there is only one plaintiff and one defendant in the suit at Delhi but there is substantial identity of the
parties in the two suits. The issues arising for decision would necessarily be the same. Only one of the two suits can be
decreed. The decree in one suit in favour of the plaintiff in that suit would entail the dismissal of the other suit. That would
avoid the possibility of any conflicting decree coming into existence. And certainly the duplication of evidence, oral,
documentary both, would be avoided. The parties and the Courts would save their time and energy which would needlessly be
wasted twice over.

The Supreme Court on above observation held:

The suit at Nasik been instituted first in point of time, by reference to section 10 of the Code of Civil Procedure, 1908,
the trial of suit at Delhi, being the latter suit, shall be liable to be stayed. It would be proper to transfer the suit at
Delhi to the court at Nasik for purpose of hearing and decision thereat.

DOCTRINE OF RES JUDICATA: SECTION 11

Q. Explain the doctrine of 'res judicata' with the help of case laws.

Section 10 and section 11 of the Code of Civil Procedure, 1908 are the important provisions and both prevent multiplicity of
suits. Where section 10 stays the trial of subsequent suit, section 11 comes into force when section has completed its role.
Provision of section 11 enacts that once a matter is finally decided by a competent court, no party can be permitted to re-
open it in a subsequent litigation. The basic difference between the provisions of section 10 and section 11 is that section 10
stays the proceedings (subsequent suit) of two parallel litigations but when, once a previously instituted suit is finally decided
and becomes final in law, the parties are barred to reopen it (suit) in a subsequent litigation.

The basic object and operation of the provisions of section 11 were rightly observed by the Supreme Court in a reading case
of Satyadhyan Ghosal v. Deorajin Debi, MANU/SC/0295/1960 : AIR 1960 SC 941: (1960) 3 SCR 590.

"The principle of res judicata is based on the need of giving finality to judicial decisions, what it says is that once a res
judicata, it shall not be adjudicated again. Primarily, it applies as between past litigation and future litigation, when a

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 matter - whether on a question of fact or of a question of law - has been decided between two parties in one suit or
proceeding and the decision is final, either because no appeal was taken to a higher court or because in appeal was
dismissed, or no appeal lies, neither party will be allowed in a future suit or proceedings between the same parties to
canvass the matter again."

In State of Karnataka v. All India Manufacturers Organisation, MANU/SC/2206/2006 : AIR 2006 SC 1846: 2006 (4) Kant LJ
369: (2006) 4 SCALE 398: MANU/SC/2206/2006 : (2006) 4 SCC 683, the Supreme Court observed that, the doctrine of res
judicata is based upon the three known maxims--

(1) Nemo debet bis vexari pro uno et eadem causa.--No man should be vexed twice for the same cause.

(2) Interest republice ut sit finis litium.--It is in the interest of the state that there should be an end to a litigation.

(3) Res judicata pro veritate acipiture.--A judicial decision must be accepted as correct.

Section 11 of the Code of Civil Procedure, 1908 reads:--

"No court shall try any suit or issue in which the matter directly and substantially in issue has been directly an
substantially in issue in a former suit between the same parties, or between parties under whom they or any of them
claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue
has been subsequently raised, and has been heard and finally decided by such court.

Explanation I.--

The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was
instituted prior thereto.

Explanation II.--

For the purpose of this section, the competence of the Court shall be determined irrespective of any provisions as to a right
of appeal from the decision of such court.

Explanation III.--

The matter above referred to must in a former suit have been alleged by one party and, either denied or admitted, expressly
or impliedly by the other.

Explanation IV.--

Any matter which might or ought to have been made ground of defence or attack in such former suit, shall be deemed to
have been a matter directly or subsequently in issue in such suit.

Explanation V.--

Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be
deemed to have been refused.

Explanation VI.--

Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others,
all persons interested in such right shall for the purpose of this section, be deemed to claim under the person so litigating.

Explanation VII.--

The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any
suit, issue or former suit shall be construed as references, respectively, to a proceeding for execution of the decree, question
arising in such proceeding and a former proceeding for the execution of that decree.

Explanation VIII.--

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An issue heard and finally decided by a court of limited jurisdiction, competent to decide such issue, shall operate as res
judicata in a subsequent suit, notwithstanding that such court of limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has been subsequently raised."

From the abovementioncd statutory provision of section 11, as given in statute (Code of Civil Procedure, 1908), the scope
and amplitude of the provision is explicitly clear from the explanations appended thereto.

Q. Discuss the scope and amplitude of section 11, CPC.

(1) Matter directly and substantially in issue.--

"Matter in issue" is distinct from the subject-matter and the object of the suit as well as from the relief that may be asked for
in it and the cause-of-action on which it is based. It is the "matter in issue" and not the subject-matter of the suit that forms
the essential test of res judicata. Here, "matter in issue" broadly stands for a particular relief following a specific provision of
law by way of a cause-of-action, where title, parties and issue are the same.

(2) Between the same parties.--

Means either the subsequently proposed suit should be between the same parties or their legal heirs or assignees.

(3) Litigating under the same title.--

Same title means same capacity, i.e., the demand should be of the same quality in the second suit as was in the first suit.
The term "same title" has nothing to do either with cause-of-action or with the subject-matter of the two suits.

(4) Competency of court to try subsequent suit.--

Fourth condition is that the court which has decided the former suit must have been a court competent to try the
subsequent suit. Explanation II to section 11 makes it clear for the purpose of res judicata, the competence of court shall be
determined irrespective of any provision as to a right of appeal from the decision of such court. The question whether there is
bar of res judicata does not depend on the existence of a right of appeal but on the question whether the same issue has
been heard and finally decided; Ram Gobinda v. Bhakta Bala, MANU/SC/0586/1971 : AIR 1971 SC 664: (1971) 1 SCC 387:
(1971) 3 SCR 340.

(5) Heard and finally decided.--

This expression means that the Court who decided the matter in issue should have duly applied its judicial mind and had
decided the matter following the due procedure of law. In case of Madukar D. Shende v. Tarabai, MANU/SC/0016/2002 : AIR
2002 SC 637: 2002 (50) BLJR 509: 2002 (6) Bom CR 552: (2002) 2 Bom LR 295: (2002) 1 Cal LT 44 (SC): (SC Supp) 2002 (2)
CHN 13: 2002 (1) JCR 448 (SC): JT 2002 (1) SC 74: (2002) 1 MLJ 181 (SC): (2002) 1 SCALE 103: MANU/SC/0016/2002 :
(2002) 2 SCC 85: (2002) 1 SCR 132, the plea of res judicata is mixed question of law and fact. It was not raised in plaint and
no issue or res judicata was framed and tried in the suit. There was no submission that raising plea of res judicata made
before any lower courts or High Court. It cannot be raised before Supreme Court for the first time and at hearing.

In the case of Ramachandra Dagdu Sonavane v. Vithu Hira Mahar, MANU/SC/1731/2009 : AIR 2010 SC 818, the appellants
held filed earlier suit before the Civil Court inter alia seeking an order of permanent injunction against respondents on the
ground that they were watandars of suit lands and the were in peaceful possession and enjoyment of the said lands.
Respondent has set up a defence that since he was the adopted son of the deceased, he had the right, title and interest in
the suit land. The Trial Court after elaborate discussion has answered the issue framed against the respondent and had
concluded that the respondent failed to prove that he was the adopted son of the deceased. In the subsequent proceedings
before the Sub-Divisional Officer, the issue was whether respondent was the adopted son of the deceased. It is held that
since the issue of adoption was already decided between the same parties by a competent Civil Court, the Sub-Divisional
Officer could not decide that issue and without giving any decision on that issue could not have allowed the claim of the
respondent. The principles of res-judicata would apply to the proceedings before the Sub-Divisional Officer.

In Chandrabhai K. Bhoin v. Krishna Arjun Bhoin, AIR 2009 SC 1675, the Supreme Court held that an order passed without

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jurisdiction would be a nullity. It will be a coram non-judice. It is non est in the eye of law. Principles of res judicata would not
apply to such cases.

Nabin Majhi case

In Nabin Majhi v. Teja Majhi, MANU/WB/0099/1978 : AIR 1978 Cal 440: (1978) 2 Comp LJ 150 (Cal): 82 CWN 1097, the facts
of the case was, the plaintiff instituted the suit claiming partition by metes and bounds of their half share in the suit property.
The principal defence of the defendant was that prior to this suit he had instituted a suit against the plaintiffs in the first
court of the Munsif at Rajpurghat for a declaration of title to 10 acres of land. The said suit was decreed on finding that there
was an amicable partition of the suit property-It was urged by the defendants that the finding of the learned Munsif in the
said title suit would operate as "Res judicata" in the present suit.

The learned subordinate Judge overruled the contention of the defendant that the finding in the earlier suit operated as "Res
judicata" in the present suit for he took the view that the Court of the Munsif in which the earlier suit was instituted was not
competent to try the present suit. On the merits, of the case the learned subordinate Judge held that there was no previous
partition although the plaintiffs had a half share and the defendant had the other half, the defendant was in possession of 15
or 16 bighas of land, and the plaintiff were in possession of 7 or 8 bighas of land. The defence plea of previous partition was
disbelieved by the learned subordinate Judge. Accordingly the learned subordinate Judge decreed the suit in a preliminary form
declaring the plaintiff is entitled to half share in the suit property. The defendants appeal to lower Appellate Court was also
dismissed as the lower Appellate Court also took the same view as that of the Trial Court. The defendant appealed.

Decision by the High Court:

In the present case, the defendant filed the former suit in the Court of Munsif and the plaintiff filed the subsequent
suit in the Court of the subordinate Judge. In the former suit, the learned Munsif held that there was previous partition
of the suit property, but the learned Munsif not being competent to try the present suit, it cannot be said that finding
operates as "Res judicata" in the present suit.

There can be no doubt that the pecuniary jurisdiction of the Court of Munsif is limited and that of the Court of subordinate
Judge unlimited. If we are to interpret Explanation VIII without referring to section 11 it may be said that a court of limited
pecuniary jurisdiction is a court of limited jurisdiction. An explanation to the section is meant to explain the section itself. In
order to ascertain the true meaning of the Explanation VIII, it has to be read along with the provision of section 11 and not in
isolation. In the face of the provision of section 11 retaining the said condition for the applicability of "Res judicata" that the
former court must be competent to try the subsequent suit, it is difficult for us to accept the interpretation of Explanation
VIII as suggested on behalf of the appellant.

It is to be noted that Explanation VIII has taken cognition of the general principles of "res judicata" under which the decision
of the Courts of limited jurisdiction also operated as "res judicata" in subsequent suits. The expression "court of limited
jurisdiction" applies not to ordinary civil court, but to courts which entertain specific matters, such as the revenue courts,
court of wards, Court of Pobates, insolvency courts, etc.

If the former court is not competent to try the subsequent suit for the want of pecuniary jurisdiction section 11 will not
apply. In these circumstances we are unable to accept contentions made on behalf of the appellants that the findings of the
learned Munsif in the former suit that there was a previous partition operates as ''Res judicata" in the present suit for partition
instituted in the Court of the subordinate Judge, for the learned Munsif is not competent to try the present suit.

The High Court regarding misjoinder and finally dismissed the appeal.

Constructive Res Judicata

Q. What do you mean by term 'constructive res judicata'?

Explanation IV.--

Section 11 says that any matter which might or ought to have been made ground of defence or attack in a former suit shall
be deemed to have been a matter constructively in issue in that suit.

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Constructive means to be well within knowledge or that the party is well presumed to have a particular fact in its mind at a
particular point of time.

The Supreme Court while discussing the scope of the words "might" and "ought" as laid down in Explanation IV of section 11,
observed in case of Forward Construction v. Prabhat Mandal, MANU/SC/0274/1985 : AIR 1986 SC 391: (1986) 88 Bom LR 128:
(1985) 2 SCALE 1123: MANU/SC/0274/1985 : (1986) 1 SCC 100A: (1985) Supp 3 SCR 766: (1986) 1 UJ 167 (SC), that--

The words 'might' and 'ought' have wide amplitude. The word 'might' conveys the idea of possibility of joining all
grounds of attack or defence, while the word 'ought' carries the idea of propriety of so joining. An alternative basis on
which a claim can be sustained should be set up in any suit to enforce the claim, when it is not set up, the basis
omitted in the prior suit should not be allowed to sustain the second suit. The 'test' is whether the parties had an
opportunity of controverting it and, if they had, the matter will be treated as actually controverted and decided.

Another important case on constructive "Res judicata" is of State of Uttar Pradesh v. Nawab Hussain, MANU/SC/0032/1977 :
AIR 1977 SC 1680: (1977) 2 SCC 806: (1977) 3 SCR 428, wherein a police Sub-Inspector was dismissed by D.I.G. He
challenged the said dismissal by filing a writ petition on the ground that he was not afforded a reasonable opportunity, but
the petition was dismissed. He then filed a suit and raised an additional plea that he was appointed the I.G. and D.I.G. was
not competent to pass an order against him. The state contended that the suit was barred by constructive "Res judicata". All
the courts including High Court held against the state and the matter was taken to the Supreme Court.

Allowing the appeal and after considering all the leading cases on the point, the court held that the plea was clearly barred by
the principle of constructive "Res judicata" as such plea was within the knowledge of the police S.I. and it could have been
taken in the writ petition but was not taken at that time. It was observed by Supreme Court:

"When any matter which might and ought to have been made a ground of defence or attack in a former proceeding but
was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation and to bring finality in it, is
deemed to have been constructively, in issue and therefore, is taken as decided."

The same thing applies to the defendant. He cannot raise such grounds of defence in the subsequent suit which might and
ought to have been raised in the former suit. A files a suit against B to recover money on a promissory note. B contended
that the promissory note was obtained from him by undue influence. The suit is decreed in spite of his objection. The
defendant subsequently wants to challenge the promissory note by fresh suit on the ground of fraud and coercion. This he
cannot do as it was his duty to have resisted the former suit on the ground of fraud and coercion as well.

An adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the
parties might and ought to have litigated and have had it decided as incidental to or essentially connected with the subject-
matter of the litigation and every matter coming within the legislative purview of the original action both in respect of the
matters of claim or defence. It is true that where a matter has been constructively in issue it cannot be said to have been
actually heard and decided. It could only be deemed to have been heard and decided. The words 'might' and 'ought' have
wide amplitude. The word 'might' conveys the idea of possibility of joining all grounds of attack or defence 'ought' carries the
idea of propriety of so joining. An alternative basis on which a claim can be sustained should be set up in any suit to enforce
the claim. When it is not set up, the basis omitted in the prior suit should not be allowed to sustain the second suit. The 'test'
is whether the parties had an opportunity of controverting it and, if they had, the matter will be treated as actually
controverted and decided; Forward Construction Co. v. Prabhat Mandal, MANU/SC/0274/1985 : AIR 1986 SC 391: (1986) 88
Bom LR 128: (1985) 2 SCALE 1123: MANU/SC/0274/1985 : (1986) 1 SCC 100: (1985) Supp 3 SCR 766: (1986) 1 UJ 167 (SC).

The principles of constructive res judicata applies to writ petition . . . Nagabhushana v. State of Karnataka,
MANU/SC/0088/2011 : AIR 2011 SC 1113.

© Universal law Publishing Co.

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 CHAPTER 5

AMENDMENT OF PLEADINGS, ETC.

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such
terms as may be necessary for the purpose of determining the real questions in controversy between the parties:

Provided that no application for amendment shall be allowed after the trial has commenced unless the Court comes to
the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of
trial.

Order VI, rule 17 provides for amendment of pleadings. The basic object of the rule is that the Courts should try the merits of
the cases that come before them and should consequently allow all amendments that may be necessary for determining the
real question in controversy between the parties provided it does not cause injustice or prejudice to the other party.

In case of Van Vibhag Karamchari Griha Nirmana Sahakari Sanstha Maryadit v. R. Chandra, MANU/SC/0866/2010 : AIR 2011 SC
41 it was held that subsequent inclusion of plea of specific performance by way of amendment under Order 6, rule 17 after 11
years of filing of suit could not be allowed.

In South Konkan Distilleries v. Prabhakar Gajanan Naik, MANU/SC/8043/2008 : AIR 2009 SC 1177, it is held that the Court
must be extremely liberal in granting the prayer for amendment of pleadings if the Court is of the view that such amendment
is not allowed, a party, who has prayed for such as amendment shall suffer irreparable loss and injury. It is always open to
the Court to allow an amendment if it is of the view that allowing of an amendment shall really subserve ultimate cause-of-
justice and avoid further litigation.

Q . Whether a party to the suit can alter or amend his pleadings? Till what stage a court can allow such
amendments?

In Rajesh Kumar Aggarwal v. K.K. Modi, MANU/SC/8043/2006 : AIR 2006 SC 1647: 2006 (3) ALD 61 (SC): 2006 (3) ALT 50
(SC): 2006 (2) AWC 1886 (SC): 2006 (3) JCR 58 (SC): JT 2006 (3) SC 607: (2006) 3 KLT 192 (SC): 2006 (4) Man LJ 719:
(2006) 3 MLJ 70 (SC): 2006 (II) OLR (SC) 561: RLW 2006 (3) SC 1882: (2006) 3 SCALE 312: MANU/SC/8043/2006 : (2006) 4
SCC 385 it was observed that, this rule declares that the Court may, at any stage of the proceedings, allow either party to
alter or amend his pleadings in such a manner and on such a manner and on such terms as may be just. It also states that
such amendments should be necessary for the purpose of determining the real question in controversy between the parties.
The provision enacts that no application for amendment should be allowed after the trial has commenced, unless the Court
comes to the conclusion that in spite of due diligence, the part could not have raised the matter for which amendment is
sought before the commencement of the trial.

The object of the rule is that courts should try the merits of the case that come before them and should, consequently, allow
all amendments that may be necessary for determining the real question in controversy between the parties provided it does
not cause injustice or prejudice to the other side.

In a leading case of Cooper v. Smith, (1884) 29 Ch D 700, the object underlying amendment of pleadings has been laid down
by Bowen, L.J. in the following words:

'It is well-established principle that the object of courts is to decide the rights of the parties and not to punish them
for mistakes they make in the conduct of their cases by deciding otherwise than in accordance with their rights.....I
know of no kind of error or mistake which is fraudulent or intended to overreach, the court ought not to correct it if it
can be done without injustice to the other party, courts don't exist for the sake of discipline but for the purpose of
deciding matters in controversy and I don't regard such amendment as a matter of favour or grace.....it seems to me
that as soon as it appeals that the way in which a party has framed his case will not lead to a decision of the real
matter in controversy, it is as much a matter of right on his part to have it correct if it can be done without injustice
as anything else in case is a matter of right."

In Puran Ram v. Bhaguram, MANU/SC/7233/2008 : AIR 2008 SC 1960, it is held that the prayer for amendment of the

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agreement to correct a part of the description of the suit property cannot involve either the question of limitation on the
charge of nature of suit. The suit shall remain a suit for specific performance of the contract for sale and a separate
independent suit is not needed to be filed when the proviso to section 26 of the Specific Relief Act, itself clearly permits
either party to correct or rectify the description of the suit property not only in the plaint but also in the agreement itself.

Leave to Amend.--When could/may be granted

In case of Kisandas v. Vithoba, ILR (1909) 33 Bom 644 the Court made the following observation on granting the amendments
in pleadings:

"All amendments ought to be allowed which satisfy the two conditions (a) of not working injustice to another side, and
(b) of being necessary for the purpose of determining the real questions in controversy between the parties."

The provisional rule 17 makes it clear that, it confers a very wide discretion on courts in the matter of amendment of
pleadings. As a general rule, leave to amend will be granted so as to enable the real question in issue between the parties to
be raised in pleadings. Where the amendment will occasion no injury to the opposite party and can be sufficiently
compensated for by costs or other terms to be imposed by the order.

Therefore, for allowing an application under Order VI, rule 17, the Court has to see the two main points before it: (a) whether
the amendment is necessary for the determination of real question in controversy; and (b) can the amendment be allowed
without injustice to the other side.

Courts allow such amendment after applying its judicial mind over the facts and circumstances of the each case and after
hearning the each party over the issue. So, the powers to allow amendment is wholly discretionary and confers wide powers
to the Courts in administration of justice.

In Clarpede v. Commercial Union Association, (1882) 32 WR Eng 262 it was observed. "Even it has been held to the extent
that it does not matter that the original omission arose from negligence or carelessness. However, negligence or carelessness
may have been the first omission, and however late the proposed amendment, the amendment should be allowed if it can be
made without injustice to other side. There is no injustice if otherside is compensated for in terms of money."

In Ganesh Trading Co. v. Moji Ram, MANU/SC/0018/1978 : AIR 1978 SC 484: (1978) 2 SCC 91: (1978) 2 SCR 614: 1978 (10)
UJ 162 (SC). The Supreme Court observed:

"Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to
pleadings in civil cases are meant to give each side intimation of the case of the other so that it may be met to enable
courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation
or particular must take."

Leave to Amend when to be Refused

Q. When a court may refuse leave to amend the pleadings?

In Ganga Bai v. Vijay Kumar, MANU/SC/0020/1974 : AIR 1974 SC 1126: (1974) 2 SCC 393: (1974) 3 SCR 882, the Supreme
Court has rightly observed that:

"The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the
interest of justice, the law of limitation, notwithstanding. But the exercise of such for reaching discretionary powers is
governed by judicial considerations, and wides discretion, greater ought to be the care and circumspection on the part
of the Court."

Generally, in following cases, leave to amend will be refused by the Court.

(i) Where amendment is not necessary for the purpose of determining the real question in controversy between the
parties.

(ii) If it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit or

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 defence.

(iii) Where the effect of proposed amendment is to take away from the other side a legal right accrued in his favour.

In case of Charan Das v. Amir Chand, MANU/PR/0043/1920 : AIR 1921 PC 50, it was observed that:--

"That there was full power to make the amendment cannot be disputed, and though such a power as a rule, should
not be exercised, where the effect is to take away from the defendant a legal right which has accrued to him by lapse
of time, yet there are cases where such considerations are outweighed by the special circumstances of the case."

(iv) Where the application for amendment is not made in good faith.

Meaning of term "at any stage"

Q. Explain the meaning and extent of expression 'at any stage' provided under Order VI, rule 17, CPC.

Amendment application under Order VI, rule 17 is not governed by any law of limitation. Leave to amend may be granted
before, or at, or after the trial, in first appeal, or in second appeal, or in revision, or in the Supreme Court or even in
execution proceedings, provided the decree is legal, lawful and enforceable, and not otherwise.

But proviso to this provision as inserted in 2002, now restricts the power of the court and declares clearly that the Court
should not allow such amendments after the commencement of the trial unless it comes to an conclusion that inspite of due
diligence, the matter could not have been raised by the party before the commencement of the trial.

Revision

In Haridas Alidas v. Godrej Rustom, MANU/SC/0019/1981 : (1984) 1 SCC 668: AIR 1983 SC 319: 1982 (14) UJ 306 (SC), it was
observed that: "It is well-settled that the Court should be extremely liberal in granting prayer of amendment of pleadings
unless serious injustice or irreparable loss is caused to the other side. It is also clear that a revisional court ought not to
lightly interfere with a discretion exercised in allowing amendment in absence of cogent reasons or compelling circumstance."

So, an order granting or refusing amendment is not a "decree" nor an appealable order and as such no appeal lies against it.
Such order, however, is a "case decided" and is only subject to the revisional jurisdiction of the concerned High Court.

In Billa's Private Ltd. v. W.B. Khadi and Village Industries Board, AIR 1997 Cal 333,

"That by the proposed amendment the defendant tries to make out a new claim and to set up a new case than what
was made in the earlier written statement. Moreover, by this proposed amendment the defendant is attempting to
negative the admission that they were the sole agents of the products of the plaintiff."

In Sheikh Mastan Sahib v. Balrammi Reddi, AIR 1953 Mad 952, it was held:

"Where by the proposed amendment the respondent sought to negate his own admission in the written statement it
should not be allowed".

The case of Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, MANU/SC/0016/1969 : AIR 1969 SC 1267:
(1969) 1 SCC 869: (1970) 1 SCR 22, is well illustrative of the scope of power to grant the amendment of pleadings under
Order VI, rule 17 of the Civil Procedure Code, 1908.

In this case the action was instituted in the name of "Jai Jai Ram Manohar Lal" which was the name in which the business was
carried on. The plaintiff Manohar Lal subscribed his signature at the foot of the plaint as "Jai Jai Ram Manohar Lal". However,
the same firm was an unregistered one and therefore technically same could not file a suit in its name. The defendant by its
written statement contended that the plaintiff was an unregistered firm and on that account incompetent to sue. The
petitioner sought for an amendment of the plaint only to the extent that the name of the plaintiff was to be from the business
name, i.e., Jai Jai Ram Manohar Lal to the personal name of the Karta of the Hindu Undivided Family (HUF), i.e., Manohar Lal.

The main issue involved in the question was whether in view of the facts and circumstances of the case the amendment
sought by the petitioner, i.e., name of the plaintiff was to be from the business name to the personal name of the Karta of

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HUF be allowed. The subordinate judge allowed to amend the plaint on the ground that the real plaintiff was Manohar Lal
himself, that it was Manohar Lal who intended to file and did in fact file the action and the amendment was intended to bring
what in effect had been done in conformity with what in fact should have been done.

Against that decree an appeal was preferred to High Court being of the view that the action was instituted in the name of
'non-existing person' and Manohar Lal having failed to aver in the application for amendment that the action was instituted on
account of some bona fide mistake or omission. The subordinate judge was not competent to grant leave to amend the
petition.

The Supreme Court in appeal reversed the order and the reasoning of the High Court. The court referred to the decision in
Amulakchand Mewaram v. Babulal Kanalal, (1933) 35 Bom LR 569. The question whether there should be an amendment or not
really turns upon whether the name in which suit is brought is the name of non-existent person or whether it is merely a
misdescription of existing persons if the former is the case, the suit is nullity and no amendment can cure it. If the latter is
the case prima facie there ought to be an amendment because the general rule, subject no doubt to certain exceptions, is
that the court should always allow an amendment where any loss to the opposite party can be compensated for by costs.

The Court also considered a somewhat similar case in Purushottam Umedbhai & Co. v. Manilal Sons, MANU/SC/0004/1960 : AIR
1961 SC 325: (1961) 1 SCR 982, wherein a firm carrying on business outside India filed a suit in the firm name in the High
Court of Calcutta for a decree for compensation for breach of contract. The plaintiff then applied for amendment of the plaint
by describing the name of all the partners and striking out the name of the firm as mere misdescription. The Court allowed the
amendment to enable a proper description of the plaintiffs to appear in it in order to assist the court in determining the real
question in issue between the parties. The Court observed that if, however, under some misapprehension, persons doing
business as partners outside India do file a plaint in the name of their firm they are misdescribing themselves as the suit
instituted is by them being known collectively as firm it seems, therefore, that a plaint filed in a court in India in the name of
a firm doing business outside India not be itself a nullity. It is plaint by all the partners of the firm with a defective description
of themselves for the purpose of the Code of Civil Procedure, 1908.

In the present case, the plaintiff was carrying on business as commission agent in the name of "Jai Jai Ram Manohar Lai". The
plaintiff was competent to sue in his own name as manager of Hindu Undivided Family. The observations made by the High
Court that the application for amendment of the plaint could not be granted because there was no averment therein that the
misdescription was on account of bona fide mistake and on that account the suit must fail cannot be accepted. In our view,
there is no rule that unless in an application for amendment of the plaint it is expressly averted that error, omission or
misdescription is due to bona fide mistake the Court has no power to grant to leave to amend that plaint. The power to grant
amendment of the pleading is intended to serve the end of justice and is not governed by any such narrow or technical
limitations.

In Pirgonda Hongonda v. Kalgonda Shidgonda, MANU/SC/0002/1957 : AIR 1957 SC 363: (1957) 59 Bom LR 401 the Supreme
Court discussed the law relating to amendment.

In the given case the original plaintiff, Shidgonda filed a suit against Pirgonda Respondent No. 3 for possession of the suit
properties and obtained a decree which was confirmed by the Supreme Court of Kolhapur. But the execution of the decree
was obstructed by the present appellant Shidgonda, man made an application under rule 97 of Order XXI complaining of such
obstruction. This application was dismissed as it disclosed no cause-of-action against the appellant who was not a party of
the suit. The original plaintiff then filed a regular suit under rule 103 of Order XXI for a declaration that he was entitled to
possess the suit properties, and he joined the present appellant as the first defendant. The suit was resisted on the ground
that it did not disclose how the plaintiff was the owner of the suit properties. The plaintiff then filed an application for
amendment of the plaint by adding a paragraph and he inserted the whole history briefly as to how he derived title to the suit
properties. The amendment was resisted on the ground that the period of limitation on the date of proposed amendment had
expired, and as such the amendment should not be allowed.

The Trial Court dismissed the application and in appeal High Court allowed the amendment on the ground that the amendment
did not introduce any new case, that the plaintiff had obtained his earlier decree on the strength of his title to the suit
properties. The learned judges of the High Court also thought proper that the present appellant could be compensated by

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drastic order of costs in his favour.

The Supreme Court taking note of many cases i.e., L.J. Leach & Co. v. Jardine Skinner & Co., MANU/SC/0009/1957 : AIR 1957
SC 357; Charan Das v. Amir Chand, MANU/PR/0043/1920 : AIR 1921 PC 50 and Kisandas Rupchand v. Rachappa Vitobha, 33
Bom 644 (655) held that the amendment didn't really introduce a new case and the application filed by the appellant himself
showed that it was not taken by surprise, nor did he change to meet a new claim set up for the first time after the expiry of
period of limitation.

In Heeralal v. Kalyan Mal, MANU/SC/0829/1998 : AIR 1998 SC 618: 1998 (46) BLJR 444: (1998) 1 Cal LT 45 (SC): JT 1997 (9)
SC 267: (1998) 1 MLJ 101 (SC): RLW 1998 (1) SC 70: (1997) 7 SCALE 196: MANU/SC/0829/1998 : (1998) 1 SCC 278: (1997)
Supp 5 SCR 277: 1998 (1) UJ 155 (SC) Hon'ble Supreme Court observed that once the written statement contains an
admission in favour of the plaintiff by amendment, such admission of the defendants cannot be allowed to be withdrawn if
such withdraw would amount to totally displacing the case of plaintiff and which would cause him irretrievable prejudice.

In Narinder Singh v. Jagmohan Singh, 80 (1999) DLT 107 the plaintiff suit filed for specific performance of agreement. To save
suit from being dismissed as infructuous plaintiff wants to amend plaint by adding new relief for settlement of terms and
conditions for extension of lease under garb of amendment application plaintiff want to take away right accrued to defendant
on termination of tenancy.

Dalip Kaur v. Major Singh, AIR 1996 P&H 108. The facts of case relate to a suit for possession of land filed to restrain the
defendant from alienating land by way of sale, exchange, gift, etc., while the suit was in progress the plaintiff filed an
application under Order VI, rule 17 seeking amendment of the plaint by making a prayer for declaring the judgment and decree
passed in another suit Major Singh v. Balbir Kaur as null and void and ineffective against the rights of the plaintiff.

The application for amendment was dismissed mainly on the ground that same was filed without explaining the alleged
inordinate delay. And further it was held that proposed amendment changed the foundation of the suit by introducing a
distinct cause-of-action.

The matter came before Punjab High Court which observed:

The purpose of Order VI, rule 17 of the Code of Civil Procedure, 1908, is to allow either party to amend his pleadings in
such manner as may be just. The power to allow amendment is wide and can be exercised at any stage of proceedings
in the interest of justice on the basis of guidelines laid down by Supreme Court. On the basis of different judgments
following principles should be kept in mind while dealing with application for amendment of pleading:

(i) all amendments should be allowed which are necessary for determination of the real controversy in the suit;

(ii) the proposed amendment should not alter and be a substitute of cause-of-action on the basis of which
original lis was raised;

(iii) inconsistent and contradictory allegations in negation to admitted position of facts or mutually destructive
allegations of facts would not he incorporated by means of amendment;

(iv) proposed amendment should not cause prejudice to other side zvhich cannot be compensated by means of
costs;

(v) amendment of claim or relief barred by time should not be allowed;

(vi) no amendment should be allowed which amounts to or results to defeating a legal right to the opposite
party on account of lapse of time;

(vii) no party should suffer on account of technicalities of law and the amendment should be allowed to
minimize the litigation between the parties;

(viii) the delay in finding the petition for amendment of the pleadings should be properly compensated by costs;

(ix) error or mistake which if not fraudulent should not be made ground for rejecting the application for

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 amendment of pleading.

Amendment cannot be claimed as a mailer of right and under all circumstances. The circumstances may differ from case to
case and it would depend upon the facts of each individual case keeping in view the object that the courts are to do
substantial justice and not to punish a party on technical grounds.

Keeping in view the principles discussed above the application for amendment filed by plaintiff was wrongfully rejected. The
order impugned in the revision petition is set aside.

Suit by Indigent Persons, or Suit in forma pauperis (Order XXXIII)

Q . Can an indigent person be allowed to file a suit where he has no money to pay for the requisite court-fee?
Explain.

Order XXXIII provides for (Special suits) filing of suits by indigent persons. It enables the persons who are too poor to pay
court-fee and allows them to institute suits without payment of requisite court-fee.

The basic object of Order XXXIII was widely discussed by Kerala High Court in Sumathy Kutty v. Narayani,
MANU/KE/0007/1973 : AIR 1973 Ker 19, whereas it was observed that:--

"The provision of Order XXXIII are intended, to enable indigent persons to institute and prosecute suits without the
payment of any court-fee. Generally, a plaintiff suing in a court of law is bound to pay court-fees prescribed under the
Court-fees Act, at the time of presentation of plaint. But a person may be too poor to pay the requisite court-fee.
This order exempts such persons from paying the court-fee at the first instance and allows him to prosecute his suit in
forma pauperis provided he satisfies certain conditions of this order."

Order XXXIII, rule 1 provides for meaning of an indigent person for application of force behind Order XXXIII. That a person is
an "indigent person" if,

(1) He is not possessed of sufficient means to enable him to pay the fee prescribed by law for the plaint in such suit,
or

(2) where no such fee is prescribed, when he is not entitled to property worth Rs. 1000.

In both the cases, property exempt from attachment in execution of a decree and the subject-matter of the suit be
excluded.

According to rule 2 - every application for permission to sue as an indigent person shall contain the following particulars:

(1) The particulars required in regard to plaints in suits;

(2) A schedule of any movable or immovable property belonging to the applicant with the estimated value thereof; and

(3) Signature and verification as provided in Order VI, rules 14 and 15.

Rule 5 provides that the Court may reject an application for permission to sue as an indigent person on the following
grounds:--

(i) where it is not framed and presented in the manner prescribed above;

(ii) where the applicant is not an indigent person;

(iii) where before two months of the presentation of such applications, has knowingly disposed of any property
fraudulently or in order to be able for permission to sue as an indigent person: Provided that no such application shall
be rejected if even after the value of the property disposed of by the applicant is taken into account, the applicant
would be entitled to sue as an indigent person, or

(iv) where his allegations do not reveal a cause-of-action; or

(v) where he has entered into an agreement with respect to the subject-matter of the proposed suit under which any

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 other person has obtained an interest in such subject-matter; or

(vi) where the allegations made by the applicant in the application show that suit would be barred by any law for the
time being in force; or

(vii) when any other person her entered into an agreement with him to finance the litigation.

Rules 8 to 9A provides for the provisions where a permission is granted by the court. The court may assign a pleader to an
indigent person if he is not represent by a pleader. A defendant can also plead set-off or counterclaim as an indigent person.

While rules 15 to 15A are regarding the rejection of permission. Where the court rejects an application to sue as an indigent
person, it will grant time to the applicant to pay court-fee. An order refusing to allow an application to sue an indigent person
shall be a bar to a subsequent similar application. However, this does not debar him from suing in an ordinary manner.

Order XLIV provides for appeals by the indigent persons. It provides that a person unable to pay court-fee on memorandum of
appeal may apply to allow him to appeal as an indigent person. The necessary inquiry as prescribed in Order XXXIII will be
made before granting or refusing the prayer.

In R.V. Dev v. Chief Secretary, Government of Kerala, MANU/SC/7704/2007 : AIR 2007 SC 2698, the court held that when an
application is filed by a person said to be indigent, certain factors for considering as to whether he is so within the meaning of
the said provision is required to be taken into consideration therefor. A person who is permitted to sue as an indigent person
is liable to pay the court-fee which would have been paid by him if he was not permitted to sue in that capacity, if he fails in
the suit of the trial or even without trial. Payment of court-fee as the scheme suggests is merely deferred. It is not
altogether wiped off.

In M.L. Sethi v. R.P. Kapur, MANU/SC/0245/1972 : AIR 1972 SC 2379: (1972) 2 SCC 427: (1973) 1 SCR 697.

Facts of the case: Shri R.P. Kapur filed a suit in forma pauperis against the appellant and his wife for recovery of damages to
the tune of Rs. 74,800--for malicious prosecution. Notice of the petition was given to the State Government and the
appellant. The appellant thereafter, filed an application in the court for direction to the respondent to discover on affidavit, all
documents, bank accounts, with pass books and counter foils and all other documents relating to property. This application
was filed under the provisions of Order XI. The Trial Court fixed a date for filing the said affidavit by which date the
respondent failed to file the affidavit. Thereafter the respondent filed an application for an extension of time on the ground
that he wanted to file a revisional appeal to the High Court against the order of the court directing discovery. The court
rejected this application and thereafter dismissed the respondents application to sue in forma pauperis. Against these two
orders, the respondent went in for the revision to the High Court.

Among other orders (which we shall take up in other relevant chapters), the learned Judges of High Court held: that the
proceedings under rules 6 and 7 of Order XXXIII are summary in character; and that the sophisticated procedures for
discovery should not have been resorted to by the appellant, that the documents of which discovery was sought were not
specified in the application of the appellant and, therefore, the application for discovery was bad; that the enquiry under
rules 6 and 7 of Order XXXIII was primarily a matter between the respondent and the State Government and that the Trial
Court should not have adopted the procedure for discovery and inspection at the instance of a private party like the
appellant.

Decision of the Supreme Court

We venture to think that the High Court was labouring under a mistake when it said that the enquiry into the question
whether the respondent was a pauper was exclusively a matter between him and the State Government and that the
appellant was not interested in establishing that the respondent was not a pauper. Order XXXIII, rule 5 provides that if the
Court does not reject the application under rule 9, the Court shall fix a day for receiving such evidence as the applicant may
adduce in proof of his pauperism. Notice shall given to the State Government and the opposite party for hearing any evidence
which may be adduced in disproof of pauperism. Under rule 9, it is open to the Court on the application of the defendant to
dispauper the plaintiff on the grounds specified therein, one of them being that his means are such that he ought not to
continue to sue as a pauper. Their Lordships further held:

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 An immunity from litigation unless the requisite court-fee is paid by the plaintiff is a valuable right for the defendant.
And does it not follow as a corollary that the proceeding to establish that the applicant-plaintiff is a pauper, which will
take away that immunity, is a proceeding in which the defendant is vitally interested.

To what purpose does Order XXXIII, rule 6 confer the right on the opposite party to participate in the enquiry into the
pauperism and adduce evidence to establish that the applicant is not a pauper unless the opposite party is interested in the
question and entitled to avail himself of all the normal procedure or establish it? We think of no reason why if the procedure
for discovery is applicable to proceeding under Order XXXIII, the appellant should not entitled to avail himself of it.

In the end their Lordships held that the trial court was right in directing discovery of documents, because it was the valuable
right of the appellant to ask for discovery, as he was not a private party but a defendant is much interested in the question
of the pauperism of the respondent.

The important point to remember is that the provisions of Order shall also apply to pauper appeals under Order XLIV where,
once again, the procedure prescribed for suits in forma pauperis has to be followed.

Appearance and Non-appearance of Parties (Order IX, rules 1 to 3)

Q. Discuss the effects and consequences of appearance and non-appearance of parties in a suit.

Appearance and non-appearance of the parties before the competent court, after filing of the suit goes to the root of the
matter. Order IX of the Code of Civil Procedure, 1908 enacts the law with regard to appearance of the parties to the suit and
consequences of their non-appearance. It also provides for remedies for setting aside an order of dismissal of the suit as also
the setting aside of an ex parte decree passed against the defendant.

Order IX, rule 1 requires the parties to the suit to attend the Court in person on by their pleaded on the day fixed in the
summons for the defendant to appear for hearing. Where neither the plaintiff nor the defendant appears, the Court may
dismiss the suit (rule 3). However, there is no bar to a fresh suit in respect of the cause-of-action (rule 4).

(i) Rules 6 to 10, where only plaintiff appear.-- Where only plaintiff appears and defendant fails to appear before the
Court, to get benefit from his claim, the plaintiff used to show that summons were duly served upon the plaintiff. If the
service of summons is proved, the Court may proceed ex-parte against the defendant and may pass a decree in favour
of the plaintiff.

(ii) Rules 7 to 11 - where only defendant appears.-- Where after filing the suit only defendant appears and plaintiff
does not follow the proceedings, the court shall pass an order dismissing the suit. But if the defendant admits
plaintiff's claim as a whole or as a part thereof, one court will pass a decree against the defendant upon admission and
dismiss the said for rest of the claim.

Q. What do you mean by ex parte decree? Does the law provide for its remedy?

(iii) Ex parte decree: meaning.-- An ex parte decree is a decree passed in the absence of the defendant (in absentia),
where the plaintiff appears and defendant does not appear even after the due services of the summons, the Court
proceeds to pass an ex parte decree against the defendant. Such a decree is neither null nor inoperative but is merely
voidable and unless and until it is annulled on legal and valid grounds, it is legal, valid and operative and enforceable
like a bi-parte decree and it has all the force of a valid decree.

(iv) Remedies Order IX, rule 13.

Order IX, rule 13 provides for remedy for the defendant for setting aside of ex-parte decree, if he succeeds in satisfying the
Court that there was cogent reason for non-appearing in the court on the day fixed for hearing.

Apart from rule 13, the defendant has remedies also, like:--

(i) To prefer an appeal against such decree: section 96(2), or

(ii) To apply for review: Order XLVII, rule 1, or

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 (iii) To file a suit on the ground of fraud.

Order IX, rule 13 is first preferable remedy (generally choosen) for the defendant, where he is to prove that (1) the summons
were not duly served; or (2) he was prevented by any sufficient cause from appearing when the suit was called out for
hearing on either of the two grounds being proved beyond doubt, the Court will set aside the decree passed against him and
shall appoint day a for proceeding with the suit.

But such power to set aside the decree (ex parte) is not so inherent and the trying court is expected to apply its mind over
the application so made and also to look into the facts and circumstances of the case.

(v) Effect of setting aside ex parte decree.-- The effect of setting aside ex parte decree is that the suit is restored,
and the Court should proceed to decide the suit as it stood before the decree. The trial should commence de novo and
the evidence that had been recorded in the ex parte proceedings should not be taken into account,

In Mahesh Yadav v. Rajeshwar Singh, AIR 2009 SC 1067, plaintiff filed a suit for declaration of title and possession where six
defendants were impleaded as parties. The defendants filed a joint written statement. Ex parte decree was passed on the
basis of compromise decree entered into between two of six defendants and plaintiff. The Court held that it may not be
correct that only because a joint written statement was filed, an application for ex parte decree was not maintainable. When
an ex parte decree is passed, the defendant may have more than one remedies. He may file an application under Order IX,
rule 13 of the CPC or setting aside the ex parte decree. He may file a suit contending that the decree ways obtained
fraudulently. He may prefer an appeal from the ex parte judgment and decree. In the given case, he may also file review
application. Therefore, eventhough a joint written statement was filed by all the defendants, application for setting aside
decree at the instance of other defendants was maintainable.

In Mahabir Singh v. Subhash, MANU/SC/8048/2007 : AIR 2008 SC 276, an ex parte decree was passed. Defendant for getting
it set aside was required to establish that either no summons was served on him or he had sufficient cause for remaining
absent on the date fixed for hearing the suit ex parte. The Limitation Act, provides for 30 days time for filing such an
application. The Court held that even assuming for the sake of argument that no proper step was taken by the appellant for
service of summons upon the respondent and/or the service of summons was irregular, it was for the respondent defendant to
establish as to when he came to know about the passing of the ex parte decree. He had approached the appellant for not
giving effect thereto one and half year prior to filing of the application, and, thus, he must be deemed to have knowledge
about passing of the said ex parte decree. The period of limitation would be reckoned from that day. Thus, as the application
for setting aside the ex parte decree was filed one and a half year after the respondent came to know about passing of the
ex parte decree in the suit, the said application was barred by limitation.

B. Jankiramiliah Chetty v. A.K. Parthasarthi, (2003) 3 SCALE 660: MANU/SC/0281/2003 : AIR 2003 SC 3527: 2003 (3) ALD 79
(SC): 2003 (5) ALT 14 (SC): 2003 (4) AWC 3296 (SC): JT 2003 (3) SC 580: 2003 (2) KLT 384 (SC): (2003) 2 MLJ 186 (SC):
(2003) 134 PLR 331: MANU/SC/0281/2003 : (2003) 5 SCC 641: (2003) 3 SCR 369, the Explanation permits the Court in its
discretion to proceed with a case where substantial portion of evidence of any party has already been recorded and such
party fails to appear on any day to which the hearing of the suit is adjourned. As the provision itself shows, discretionary
power given to the court to be exercised in a given circumstances. For application of the provision, the court has to satisfy
itself that (i) substantial portion of the evidence of any party has been already recorded; (ii) such party has failed to appear
on any day, and (iii) the day is one to which the hearing of the suit is adjourned. Rule 2 permits the court to adopt any of the
modes provided in Order IX or to adopt any of the modes provided in Order IX or to make such order as he thinks fit when on
any day to which the hearing of the suit is adjourned, the parties or any of them fails to appear. The Explanation is in the
nature of an exception to the general power given under the rule, conferring discretion on the Court to act under the
specified circumstance, i.e., where evidence or a substantial portion of evidence of any party has been already recorded and
such party fails to appear on the date to which hearing of the suit has been adjourned. If such is the factual situation, the
Court may make an order directing that the suit be dismissed when neither party appears when the suit is called on for
hearing. There are other provisions for dismissal of the suit contained in rules 2, 6 and 8.

Rules 2 and 3 operate indifferent and distinct sets of circumstances. Rule 2 applies when an adjournment has been generally
granted and not for any special purpose. On the other hand, rule 3, operates where the adjournment has been given for one

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of the purposes mentioned in the rule. While rule 2 speaks of disposal of the suit in one of the specified modes. Rule 3
empowers the Court to decide the suit forthwith. The basic distinction between the two

rules, however is that in the former, any party has failed to appear at the hearing, while in the latter the party though
present has committed any one or more of the enumerated defaults. Combined effect of the Explanation to rules 2 and 3 is
that a discretion has been conferred on the Court. The power conferred is permissive and not mandatory. The Explanation is
in the nature of a deeming provision, when under given circumstances, the absentee party is deemed to be present.

The crucial expression in the Explanation is "where the evidence or a substantial portion on the evidence of a party". There is
a positive purpose in this legislative expression it obviously means that the evidence on record is sufficient to substantiate
the absentee party's stand and for disposal of the suit. The absentee party is deemed to be present for this obvious purpose.
The Court while acting under the Explanation may proceed with the case if that prima fade is the position. The Court has to
be satisfied on the facts of each case about this requisite aspect. It would be also imperative for the Court to record its
satisfaction in that perspective. It cannot be said that the requirement of substantial portion of the evidence or the evidence
having been led for applying the Explanation is without any purpose. If the evidence on record is sufficient for disposal of suit
or deferring the decision.

Sangram Singh v. Election Tribunal, Kotah, MANU/SC/0044/1955 : AIR 1955 SC 425: (1955) 2 SCR 1, in this case, the
defendant and his counsel both fail to appear before the Election Tribunal, as a consequence of which the Judge permits ex
parte proceedings. On subsequent three hearings several witnesses of the plaintiff were examined in the absence of the
defendant and counsel. The defendant and his counsel put an appearance on the fourth hearing and insist that not only the
order to proceed ex parte be reversed but the defendant should also be permitted to cross-examine witnesses of the plaintiff
who were examined in his absence.

The question, thus, was, whether ex parte proceedings means total debarring of the defendant to appear before the Court on
any subsequent date or it merely means that the defendant may appear on a future date, however, without any right to undo
what prejudice has been caused to his interest in the ex parte proceedings?

Q. Whether respondent at the stage of appeal can be allowed to amend his pleadings necessitated by subsequent
events as per Order VI, rule 17, CPC?

The Supreme Court observed as follows:

(i) Ex parte proceedings does not mean that the defendant cannot be allowed to appear at all in the subsequent
proceedings of the suit. It only relates to the particular day of hearing on which the defendant remains absent. The
rule merely authorises the court to proceed ex parte on the day when the defendant does not appear.

(ii) The right to proceed ex parte is a right which accrues from day-today because at each adjourned hearing the
court is thrown back to Order IX, rule 6. It is not a mortgaging of the future, but only applies to the particular hearing
at which a party was afforded the chance to appear and did not avail himself of it. Therefore, if a party does appear
on "the day to which the hearing of the suit is adjourned", he cannot be stopped from participating in the proceedings
simply because he did not appear on the first or some other hearing.

(iii) The Code of Civil Procedure, 1908 prescribes a procedure, something designed to facilitate justice and further its
ends: not a penal enactment for punishment and penalties, not a thing designed to trip people up. An omission to
appear in response to a summons carries no penalty in the strict sense.

(iv) Our procedures are grounded on a principle of natural justice which requires that men should not be condemned
unheard; that decision should not be reached behind their backs, that the proceedings that affect their lives and
property should not continue in their absence and they should not be precluded from participating in them.

(v) No form or procedure should ever be permitted to exclude the presentation of litigant's defence the Supreme Court
followed the view propounded by Wallace, J. in Venkata Subbiah v. Lakshmi Narasimbam, (1925) AM 1274, that "ex
parte' merely means in the absence of the other party and therefore whenever the other party is present it should be
allowed to present its case. Thus a party has right to appear and plead his cause on all occasions when the cause

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 comes on for hearing and the party should not be deprived of that right, unless the code deprives him of it.

The Supreme Court in the present case held that the appellant cannot be relegated to the same position as he has failed to
show good cause, he cannot be denied his right to contest and be present on subsequent dates.

Vijay Kumar Madan v. R.N. Gupta Technical Education Society, MANU/SC/0377/2002 : AIR 2002 SC 2082: 2002 (4) ALT 59
(SC): 2002 (2) AWC 1593 (SC): JT 2002 (4) SC 443: (2003) 1 MLJ 58 (SC): (2002) 4 SCALE 191: MANU/SC/0377/2002 :
(2002) 5 SCC 30: (2002) 3 SCR 217: 2002 (2) UJ 882 (SC). In this case Respondent (R.N. Tech. Educ. Society) held the
tenancy of premises under lease deed at 1st April, 1996 from the appellants. The rent payable was Rs. 63,087 per month plus
Rs. 4000 per month of maintenance charges.

On 27th March, 1998 Vijay Kumar Madan filed suit for recovery of rent and ejectment, alleging the respondents were in
arrears of rents from 1st May, 1996 to 2nd May, 1998 the respondent/defendant and their counsel failed to appear in the Trial
Court, and therefore Trial Court directed the suit to proceed ex parte against the defendant.

On 29th May, 1998 the respondent/defendant moved an application under Order IX, rule 7 praying for setting aside of the ex
parte order on the ground that their counsel was prevented from appearing in the court on account of having met 'an
accident on 9th September, 1999 the Trial Court allowed the application recording that defendant had good sufficient cause
for previous non-appearance of defendant and their counsel on 2nd May, 1998. However, Trial Court directed the defendant
to deposit the arrear monthly lease rent in the court at the time of filing written statement.

The defendant aggrieved by the Trial Court order of depositing rent preferred appeal to the High Court. The High Court's order
dated 14th October, 1999 found Trial Court's direction too onerous, the condition imposed by Trial Court was set aside and
the Trial Court was directed to dispose of the suit latest by 31st March, 2000. The plaintiff appellant filed the petition seeking
special leave to appeal. On 28th February, 2000 while allowing the leave, it was directed that impugned order of High Court
dated 14th October, 1999 should remain stayed. The result was that order of Trial Court dated 9th January, 1999 came into
operation as defendant failed to comply with condition of depositing rent, the Trial Court passed a decree for recovery of rent
in arrears and recovery of possession. However, prior to 28th February, 2000, the date of passing of interim order by the
court, and armed with the order of the High Court, the defendant-respondent had filed their written statement.

In the meantime an another important event took place during the pendency of appeal. Subsequent to the passing of the
decree by the Trial Court the same was put to execution. On 1st November, 2000, the plaintiff-appellant have taken
possession over the property with police aid.

The Apex Court hearing the learned counsel for the parties opined that the impugned order of High Court deserves to be
maintained but subject to certain modifications. Under Order IX, rule 7 of the Code of Civil Procedure, 1908 the court does
have jurisdiction, while setting aside the ex parte order impose costs and also to put defendant applicant on terms. It has
been settled in earlier decision of Apex Court, that on an adjourned hearing, in spite the Court having proceeded, ex parte
earlier the defendant is entitled to appear and participate in the subsequent proceedings as of right.

An application under rule 7 is required to be made only if the defendant wishes the proceedings to be relegated back and
reopen the proceedings from the date wherefrom they became ex parte so as to convert the ex parte hearing into bi-parte.

While exercising power under rule 7 the court cannot pass an order which would place defendant in a situation more worse off
than what he would have been if he had not applied under rule 7. Rule 7 in its essence is to ensure the orderly conduct of the
proceedings by penalizing improper dilatoriness calculated merely to prolong litigation.

Costs should be assessed as would reasonably compensate the plaintiff for the loss of time and inconvenience caused by
relegating back the proceedings to an earlier state.

The Supreme Court held:

"The order of High Court to the extent of setting aside the ex parte proceeding and expeditious trial of suit has to be
sustained as it serves the ends of justice."

In case of Gayathri Women's Welfare Association v. Gowrama, MANU/SC/0055/2011 : AIR 2011 SC 785 generally the counter-

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claim not contained in original written statement might be refused to be taken on record, especially if issues had already been
framed.

© Universal law Publishing Co.

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 CHAPTER 6

JOINDER OF PARTIES, ETC.

Institution of Suit: Order IV

Section 26 and Order IV deals with institution of suits. Where Order I provides for parties to the suit. It also provides for
addition, deletion and substitution of parties, joinder, non-joinder and mis-joinder of parties and also objection as to non-
joinder and misjoinder of the parties.

Order II lays down rules relating to frame of suit, splitting and joinder of claims, joinder of cause-of-action and objection as to
misjoinder.

Every suit must be instituted by the presentation of a plaint in duplicate or in such manner as may be prescribed by the Code
of Civil Procedure, 1908 by the plaintiff himself or by his pleader or by his agent or recognized person. Therefore, generally a
proceeding does not commence until a plaint is not filed by a person in a court of competent jurisdiction.

Parties to the Suit - Order I

Order I is about the subject of parties to suits and about the joinder, mis-joinder and non-joinder of parties and to some
extent, with the joinder of cause-of-action.

Joinder of parties: All persons may be joined in one suit as plaintiffs where (a) any right to relief in respect of, or arising out
of, the same act, or transaction or series of acts or transactions, is alleged to exist in such persons whether jointly severally
or in alternative; and (b) if such persons brought separate suits, any common question of law or fact would arise.

Illustration.--

An altercation takes place between A on one hand and B and C on the other hand. A assaults B and C simultaneously. B and
C may join plaintiffs in one suit for damages against A for that tortious act since both the above conditions are fulfilled.

But when it appears to the court that any joinder of plaintiffs may embarrass or delay the trial of the suit, the court may put
the plaintiffs to their election or order separate trials or make such orders as may be expedient.

Joinder of Defendants - Order I, rule 3

Q. Differentiate between necessary and proper parties. Discuss effect of non-joinder of necessary party or proper
party.

Who may be joined as defendants.--

All persons may be joined in one suit as defendants where--

(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and

(b) if separate suits were brought against such persons, any common question of law or fact would arise.

In case of Govindaraju v. Alagappa, MANU/TN/0160/1926 : AIR 1926 Mad 911: (1926) 51 MLJ 194, while interpreting the two
basic conditions for Order III, the court held that, the word 'and' makes it clear that both the conditions are cumulative and
not alternative. So for inducing the provisions of Order III, both the conditions should be made out explicitly.

It says that: All persons may be joinded in one suit as defendant if the following two conditions are satisfied:

(1) the right to relief alleged to exist against them arises out of the same out or transaction; and

(2) the case is of such a character that, if separate suit is brought against such persons, any common question of law
or fact would arise.

Illustration: B, C, E and D each separately entered into an agreement with A to supply 100 tins of oil. They failed to supply

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the goods. A cannot join B, C, D and Å“ as defendants in one suit for damages as much as there are from distinct contracts
and therefore, four different transactions.

Before going into the question of non-joinder and mis-joinder of parties, it is necessary to understood the terms - "Necessary
party" and "Proper party". A "necessary party" is one whose presence is indispensable for proceeding with the suit and for
final decision thereof, on the other hand "proper party" is one in whose absence an effective order can be passed, but whose
presence is required for complete and final decision of the suit.

In case of Hardeva v. Ismail, MANU/RH/0036/1970 : AIR 1970 Raj 167 two tests have been mentioned for determining the
question whether a particular party is a necessary party to a proceeding:

(1) there must be a right to some relief against such party in respect of the matter involved in the proceeding in
question; and

(2) it should not be possible to pass an effective decree in absence of such a party.

Order I, rule 8 provides that there are numerous persons having the same interest in one suit, one or more or such persons
may with the permission of court sue on behalf of or for the benefit of all persons so interested. Bhupendra Singh Babera v.
Municipal Council, MANU/CG/0051/2001 : AIR 2002 Chh 7.

Mis-joinder or non-joinder of parties (Order I, rule 9)

Order I, rule 9 says: "No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court in every
suit may deal with the matter in controversy so far as the rights and interests of the parties actually before it:

Provided that nothing in this rule shall apply to non-joinder of a necessary party.

So, where a person, who is necessary or proper party to a suit has not been joined as a party to the suit, it is a case of non-
joinder. Conversely, if two or more persons are joined as plaintiffs or defendants in one suit in contravention of Order I, rules
1 and 3 respectively and they are neither necessary party nor proper party, it is a case of mis-joinder of the parties.

Order I, rule 13, provides that all the objections on the ground of nonjoinder mis-joinder of parties shall be taken at the
earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of
objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

Non-joinder (meaning) - Where a person who is a necessary party to a suit has not been joined as a party to the suit, it is a
case of non-joinder. A suit should not be dismissed on the ground of non-joinder.

But if the decree cannot be effective without the absent parties, the suit is liable to be dismissed. In case where the joinder
of a person as a party is only a matter of convenience, the absent party may be added or the suit may be tried without him.

Mis-joinder - Where there are more plaintiffs than one and they are joined together is one suit, but the right to relief in
respect of, or arising out of, the same act or transaction or series of acts or transactions alleged to exist in such persons
does not arise out of the same act, or transaction and if separate suits were brought, no common question of law or fact
would arise, it is case of mis-joinder of plaintiff. Misjoinder of defendants takes place in reverse position.

In case of B.P. Rao v. State of Andhra Pradesh, 1985 Supp (1) SCC 432: MANU/SC/0330/1985 : AIR 1986 SC 210: 1985 (51)
FLR 501: 1985 Lab IC 1555: (1985) 2 SCALE 256: (1985) Supp 2 SCR 573, it was held by the Supreme Court that, where the
affected persons had not been joined as parties to the petition, and some of them only were joined, the interests of the
persons who were not joined as parties were identical with those persons who were before the court and were sufficiently
and well represented, and therefore, the petition was not liable to be dismissed on that ground alone.

Striking Out, Adding or Substituting Parties - Rule 10

Order I, rule 10, provides for the procedure for striking out, adding or substituting the parties to the suit.

To bring a case within this sub-rule, the following two conditions must be satisfied--

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 (1) The suit has been filed in the name of a wrong person as plaintiff by a bona fide mistake; and

(2) The substitution or addition of the plaintiff is necessary for the determination of the real matter in dispute.

Illustration - C the agent of A, under a bona fide mistake files a suit against B in his own name. The Court can substitute the
name of principal A for that of the original plaintiff.

Provisions for striking out or adding parties are governed by sub-rule (2) of rule 10 of Order 1. It lays two grounds for
enforcement of the provisions--

(1) such person ought to have been joined as a plaintiff or defendant, and is not so joined; or

(2) without his presence, the question involved in the suit cannot be completely decided.

Such amendments may be allowed by the court at any stage of suit or even at the appellate stage and upon such terms and
conditions as it thinks just. No person can be added as a plaintiff without his consent.

In Md. Sabir Ansari v. Sada Nanda Mandal, MANU/JH/0619/2009 : AIR 2010 Jhar 43, the present petitioner is having an
agreement to sale in his favour for part of the land involve in the Title Suit. Therefore, he is claiming right, title and interest
upon the land which is a suit property of the said suit. He was also filed as many as four different Title Suits for specific
performance against some of the respondents on the basis of agreement to sale. All these agreements were before the Trial
Court in different Title Suits. This aspect of the matter has been lost sight of by the Trial Court while dismissing the
application preferred by the present petitioner. Without joining the present petitioner, no effective decree could be passed by
the Trial Court after arriving at conclusion of the dispute between the parties. The petitioner ought to have joined as a
defendant. Chances of success of the petitioner ought not to have been evaluated at this stage. The Trial Court has to look
at the fact that if the applicant can show a fair semblance of the title or interest, he can be impleaded as a party defendant.

In Babulal Khandelwal v. Balkishan D. Sanghvi, AIR 2009 SC 67, the Court while appointing an Administrator in an
administration suit to administer the Estate of the decease, who dies intestate, may be required to examine transactions
involving the properties of the Estate in order to determine the assets of the Estate as on the date of death of the owner
thereof. Consequently, the impleadment of persons who may be involved in some transaction on the other concerning the
Estate of the deceased, may become necessary for a decision in an administration suit. Therefore, the High Court had not
committed any error in allowing the amendments to the plaint for impleading the appellants as parties to the administration
suit filed by the respondent and for scrutinizing the transactions which were alleged to have been concluded by the parents
of the respondents during their lifetime.

In Laxmi Shankar v. Yash Ram Vasta, MANU/SC/0254/1993 : AIR 1993 SC 1587: 1993 (2) ALT 9 (SC): (1994) 1 GLR 25:
(1993) 1 SCALE 26: MANU/SC/0254/1993 : (1993) 3 SCC 49, Supreme Court, after relying upon the judgment of Pal Singh v.
Sunder Singh, MANU/SC/0404/1989 : AIR 1989 SC 758: ]T 1989 (1) SC 67: (1989) 1 SCALE 36: MANU/SC/0404/1989 : (1989)
1 SCC 444: (1989) 1 SCR 67: 1989 (1) UJ 316 (SC), wherein it was held that when other co-owner did not object to eviction,
one co-owner could maintain eviction petition in the absence of other co-owner. Similarly in A. Vishwanath Pillai v. Special
Tahsildar for Land Acquisition No. IV, MANU/SC/0436/1991 : AIR 1991 SC 1966: JT 1991 (3) SC

575: 1991 (2) KLT 444 (SC): 1992 (1) MLJ 1 (SC): (1991) 2 SCALE 286: MANU/SC/0436/1991 : (1991) 4 SCC 17: (1991) 3
SCR 465: 1991 (2) UJ 470 (SC), it was held that co-owner could successfully file suit and recover the property against
stranger, held that in the absence of necessary proof it can not be held that suit is not maintainable on the ground of non-
joinder of necessary party.

Coming now to case in hand only issue for determination is whether plea of defendant (B) in the suit that necessary parties
have not been joined is sustainable. In his written statement defendant (B) has produced pedigree table. However, to
substantiate his plea, B has not led any evidence as to necessary party. A vague statement of B could not be considered
sufficient for attraction of provisions of Order I, rule 9 of the Code of Civil Procedure, 1908. On the other hand Revenue
Record shows that there were no other legal heirs of A except, C, D and G at the time of sale of suit property to plaintiff (H).
Therefore, in the absence of any proof that there are other co-owners and are necessary parties, the suit can not be
dismissed for non-joinder of necessary parties.

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'Necessary party' and 'Proper party': Distinction

There is essential distinction between 'Necessary Party' and 'Proper Party'. A 'Necessary Party' is one whose presence is
indispensable or against whom relief is sought and without whom no effective order can be passed. A 'Proper Party is one in
whose absence an effective order can be passed but whose presence is necessary for complete and final decision on question
involved in proceedings.

Order I, rule 9 of the Code of Civil Procedure, 1908 reads: No suit shall be defeated by reason of the mis-joinder or non-
joinder of parties, and the Court may in every suit deal with the matter in controversy so far as regards the rights and
interests of the parties actually before it:

Provided that nothing in this rule shall apply to non-joinder of a necessary party.

Therefore, general rule is that no suit can be decided without necessary parties to it. However, rule 10 of Order I of the Code
of Civil Procedure, 1908, provides for substitution or addition of parties to suit on either of the following two grounds:

(i) He ought to have been joined as plaintiff or defendant and is not so joined; or

(ii) without his presence, the question/issue involved in the suit cannot be completely decided.

REPRESENTATIVE SUIT (ORDER I, RULE 8)

A "representative suit" may be defined as:--

"a suit filed by or against one or more persons on behalf of themselves and others having the same interest in the
suit."

The object of this provision is to facilitate the decision of questions in which a large number of persons are interested without
recourse to the ordinary procedure. Order I, rule 8 of the Code of Civil Procedure, 1908 has been framed in order to same time
and expense, to ensure a single comprehensive trial of question in which numerous persons are interested and to avoid
harassment to parties by a multiplicity of suits; Teja Singh v. Union Territory of Chandigarh, AIR 1982 P&H 169.

Q. What do you mean by 'representative suit'?

In V.J. Thomas v. Pathrose Abraham, AIR 2008 SC 503, the plaint is not before the Supreme Court. The application purported
to have been held by the applicant under Order I, rule 8 is also not before it. The Court held that suit filed in terms of Order I,
rule 8 should ordinarily be premised on the ground that the defendants represent the parties interested in the suit.
Defendants in such a suit, although, must be able to represent the public in general, but no personal decree can be passed
against them. To what extent the original defendants were interested in the suit property at least in respect of the portion
thereof is not known. Whether the service of notice was proper would also be the subject-matter of an enquiry by the
learned Trial Court. It has also to be seen whether the notice in terms of Order I, rule 10 of the Code was published in a
newspaper having a wide circulation in the locality. For the purpose of examination of said question, amongst others, the
executing Court has allowed the application for impleadment of the respondents so as to enable them to press their
applications for setting aside the ex parte decree upon condonation of delay. The Supreme Court does not see any reason to
interfere therewith in exercise of its discretionary jurisdiction under article 136 of the Constitution of India.

So, to bring a case within the provisions of Order I, rule 8 of the Code of Civil Procedure, 1908, all the members of a class
should have a common interest in a subject-matter and a common grievance and the relief sought should, in its nature, be
beneficial to all.

Following conditions may be summarized to understand the object of the provision;

(1) The parties must be numerous.

(2) They must have same or common interest in suit.

(3) Permission must have been granted on direction must have been given by the Court.

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 (4) Notice must have been issued to the parties concerned.

Order II, rule 2.--

It provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause-
of-action; but the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
Thus, a plaintiff is not entitled to split his cause-of-action in two parts and bring separate of any portion of his claim arising
from the same cause of action.

The following conditions are essential for attracting the provisions of Order II, rule 2 of the Code of Civil Procedure, 1908:

(1) that the second suit is in respect of the same cause of action as that on which the previous suit was based;

(2) that in respect of the cause of action, the plaintiff was entitled to more than one relief; and

(3) that the plaintiff without the leave of the Court omitted to sue for the relief for which the second suit has been
filed.

© Universal law Publishing Co.

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 CHAPTER 7

SPECIAL SUITS

SUITS BY OR AGAINST MINORS, LUNATIC, PUBLIC OFFICERS, ETC.

For procedural purposes, suits may be classified generally into two categories, namely:

(1) Suits in general; and

(2) suits in special cases. Sections 79 to 93 and Orders XXVII to XXXVII deal with suits in special cases.

Suits by or Against Minors and Lunatics: Order XXXII

Q. Write short note on 'suit by or against minors or persons of unsound mind'.

According to section 37 of the Majority Act, 1875, "a minor is a person who has not attained the age of 18 years. But in the
case of a minor of whose person or property a guardian or next friend has been appointed by a Court, or whose property is
under the superintendence of a Court of wards, the age of majority is 21 years."

Order XXXII has been enacted to protect the interest of minors and lunatics (person of unsound mind) and to ensure that
they are represented in a suit by a person who is qualified to act as such. Owing to his want of capacity and judgment, a
minor/lunatic is disabled from binding himself except where it is for his benefit. A decree passed in favor of minor/lunatic
without appointment of a guardian is not nullity but a decree passed against a minor/lunatic without appointment of guardian
is a nullity.

Filing or Defending of Suit on Minor's Behalf (Order XXXII, Rules 1-14)

Suits by Minor: Rules (1 to 2A) - Under these provisions, a suit by a minor should be instituted in his name through his
guardian or next friend. Under rule 2A, the Court has power to order the next friend to furnish security for costs of defendant.
The object is to discourage vexatious litigation by the next friend of minor.

Rule 3 - Order XXXII, rule 377, where a suit is instituted against a minor the Court should appoint a guardian ad litem to
defend the suit. The appointment of such guardian or next friend is for throughout the proceedings unless it is terminated by
retirement, removal or death of such guardian.

Qualifications as to be a Guardian or Next Friend

Under rule 4, any person who is competent in law to make a contract or who has attained majority and is of sound mind, may
act as a guardian or next friend, provided that his interest is not adverse to that of minor, nor who is an opposite party in the
suit and who has given his consent in written to act as a guardian or next friend. However, besides all this Court may also
appoint any of its officer to act as a guardian/next friend if it is of the view that no person is competent for that.

Power and Duties of a Guardian/Next Friend (Rules 5-7)

In all suits to which a person is appointed as a guardian/next friend can, without the leave of the Court:

(1) Receive any amount, movable property by way of compromise.

(2) He cannot enter into any agreement or compromise on his behalf (minor's) in the suit.

These two above mentioned conditions are mandatory and are provided specially in rules 6 and 7.

Rules 6 and 7 are designed to safeguard the interest of a minor during the pendency of a suit against hostile, negligent or
collusive acts of a guardian. They are based upon the general principle that an infant litigant becomes the ward of the Court
and the Court has got the right/duty to see that the guardian acts property and in bona fide manner in the interest of minors;
Dhirendra Kumar v. Sughandhi Bain, MANU/SC/0130/1988 : AIR 1989 SC 147: JT 1988 (3) SC 778: (1988) 2 SCALE 1539:
MANU/SC/0130/1988 : (1989) 1 SCC 85: (1988) Supp 3 SCR 196.

Retirement, Removal or Death of such Guardian/Next Friend (Rules 8-11)

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A next friend cannot retire without procuring a fit person for substituting him and giving security for the costs already
incurred by him (Rule 8).

The Court may remove a next friend in the following circumstances, if:

(i) his interest is 'adverse to that of a minor'; or

(ii) lie is so connected with the defendant as to make it unlikely that the minor's interest will not be protected by him;
or

(iii) he does not do his duty; or

(iv) he ceases to reside within India during the pendency of a suit; or

(v) for any other sufficient cause.

Where the guardian/next friend desires to go/retire or fails to discharge his duty or where there are other justifiable grounds,
the Court may permit such guardian or next friend to retire or may remove him or may also make such order as it thinks fit.

On retirement, removal or death of a guardian or next friend, further proceedings in the suit shall remain stayed until another
competent guardian/ next friend is appointed. (Rule 10)

Minor Attaining Majority (Rules 12-14)

These provisions clears the situation of the proceedings and the duties of the next friend, when minor attains majority. On
attaining majority, a minor plaintiff may choose any of the following:

(i) May proceed with the suit, discharging the guardian/next friend with the leave of the Court.

(ii) May abandon the suit and may apply for its dismissal on repayment of cost to the defendant or to his guardian or
next friend.

(iii) May apply for withdrawal of suit on the grant of it being unreasonable or inproper.

(iv) And in case, he is a co-plaintiff he may apply for repudiation of suit and may apply to strike-off his name as co-
plaintiff.

Decree against minor.--

Rule 3A lays down that no decree passed against a minor shall be set aside merely on the ground that the next friend or
guardian for the suit of the minor had interest in the subject-matter of the suit adverse to that of minor. But if the minor is
prejudiced by reason of such adverse interest, it shall be a ground for setting aside the decree.

In Ramchandra Arya v. Mansingh, MANU/SC/0352/1967 : AIR 1968 SC 954: 1968 (16) BLJR 610:

(1968) 2 SCR 572, one Ramdas filed a suit for recover)' of certain sum against Ramlal in Court of Judge, small causes. That
suit was transferred to the Court of Munisif and an ex parte decree in that suit was passed, after the Court held that Ramlal
was sufficiently served. In execution of the decree, the house of Ramlal (of unsound mind) was sold and sale certificate was
issued in favour of one Prabhudayal. However, Ramlal continued to live in the house and he died leaving no heir, the property
by escheat passed to Maharaja of Jaipur.

Prabhudayal filed a suit for possession of the house. The suit was contested on the ground that Ramlal was a lunatic and
earlier suit instituted against Ramlal without appointment of a guardian ad litem, the decree in the suit was a nullity. The sale
in execution of the decree was void.

The defense was accepted by Trial Court and suit was dismissed. The first Appellate Court also upheld the decision. The
Bench of the High Court also confirmed the decision of lower courts, consequently the appellant has come up to the Apex
Court by special leave. The Supreme Court held:

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The decree was passed in contravention of Order XXXII, rule 15 of the Code of Civil Procedure, 1908 Ramlal was insane when
the first suit was instituted as well as when the house was sold in execution of decree passed in the suit. It is settled that
decree passed against a minor without appointment of a guardian null and void. This principle becomes applicable to the case
of lunatic in view of Order XXXII, rule 5 of the Code of Civil Procedure, 1908, so that decree obtained against Ramlal be
created as without jurisdiction and void.

In this case no right could be acquired by the purchaser Prabhudayal.

Kasturi Bai v. Anguri Chaudhary, (2003) 1 SCALE 735: 2003 (2) BLJR 1350: JT 2003 (2) SC 159: (2003) 2 MLJ 54 (SC): (2003)
3 SCC 225: (2003) 1 SCR 892: 2003 (2) UJ 835 (SC), the plaintiff respondent filed a suit against the appellant for partition of
certain immovable properties. The appellant No. 1 herein at relevant point of time aged 87, she deluged that because of
increased age she is unable to understand and give directions to her lawyer and requested the court to summon her for
inquiring about her state of mind and upon medical examination, if necessary, a guardian be appointed for defending her suit.

The leaned trial judge dismissed the said application of plaintiff respondent. Plaintiff-respondent filed a revision application in
terms of section 115 of the Code of Civil Procedure, 1908 before the High Court. The High Court allowed the revision
application stating:

The Trial Court acted with material irregularity in rejecting the application of the plaintiff-respondent under Order
XXXII, rule 15 of the Code of Civil Procedure, 1908 for appointment of guardian the appellants filed an application for
recalling of the said order, inter alia, on the ground that notices were not served upon them. This application instead
of being disposed by single judge was placed before a Division Bench of High Court. The bench considered the
application to be an appeal against the order of learned single judge and dismissed the same by impugned order.

The Supreme Court held:

The learned Trial Court refused to hold enquiry so as to enable it to arrive at a finding as to whether the respondent
was incapable of protecting her interest by reason of her mental infirmity. The learned single Judge committed a
jurisdictional error in passing the impugned judgment. The Division Bench committed a manifest error in treating the
application for recalling as an appeal against the order passed by the learned single judge of High Court.

The impugned judgment is set aside and the matter is directed to be remitted to the learned trial Judge for consideration of
the matter afresh strictly in terms of Order XXXII, rule 15 of the Code of Civil Procedure, 1908.

SUITS BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS: SECTIONS 79-82: ORDER XXVII

Section 80 of the Code of Civil Procedure, 1908, however, declares that no suit shall be instituted against a public officer in
respect of any act, purporting to be done by such public officer in his official capacity, until the expiration of two months
notice in written delivered to, or left at the official of:

(a) in case of a suit against the Central Government (except where it relates to a railway) - a Secretary to that
Government.

(b) in case of a suit against the Central Government where it relates to a railway - the General Manager of that
railway.

(c) in case of a suit against the Government of Jammu and Kashmir, the Chief Secretary to that Government, or any
other official authorised by that Government in this behalf.

(d) in case of a suit against any other State Government Secretary to that Government or Collector of that District.

(e) in case of a public officer, delivered to him or left at his office, stating the cause-of-action, the name, description
and place of residence of the plaintiff and the relief which he claims.

The basic object behind this mandatory provision of section 80 is that an opportunity is given to the Government concerned
or public officer to consider the legal position and to settle the claim, asked against that Government concerned or officer as
the case may be. The Government unlike private parties, is expected to consider the matter properly and after obtaining

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proper legal advise, two months period is given in the public interest.

The legal position and objective was broadly examined in a leading case of; Bihari Choudhary v. State of Bihar,
MANU/SC/0004/1984 : AIR 1984 SC 1043: 1984 (32) BLJR 219: (1984) 1 SCALE 536: MANU/SC/0004/1984 : (1984) 2 SCC
627: (1984) 3 SCR 309: 1984 (16) UJ 619 (SC).

Q. Write short note on 'notice under section 80, CPC'.

For constituting a legal notice, as mandatorily provided by section 80 must contain: (a) the cause-of-action, (b) the name,
description and place of residence of the plaintiff, and (c) the relief which he claims; and the plaint must contain a statement
that such notice has been so delivered or left. Failure to comply with such requirements will entail dismissal of suit.

In case of State of Andhra Pradesh v. Gundugola Venkata Suryanarayana, MANU/SC/0255/1963 : AIR 1965 SC 11: (1964) 4
SCR 945 the Hon'ble Supreme Court laid down following test to find out whether the essential requirements of section 80,
have been complied with or not:--

(i) whether the name, description and residence of the plaintiff are given so as to enable the concerned Government
or authorities to identify the person giving the notice;

(ii) whether the cause-of-action and the relief which the plaintiff claims have been set out with sufficient particulars;

(iii) whether such notice in writing has been delivered to or left at the office of the appropriate authority mentioned in
the section; and

(iv) whether the suit has been instituted after the expiration of two months after notice has been served, and the
plaint contains a statement that such a notice has been so delivered or left.

Section 80(2) than carves out an exception to the general rule, and lays down that a suit to obtain an urgent relief can be
instituted with the leave of the court "without serving the two months statutory notice." However, even if suit is so allowed
to be instituted the Court cannot grant any relief, interim or otherwise, unless the Government or the public officer has been
given a reasonable opportunity of showing cause in respect of such relief.

Section 80 also clarifies that such a suit is not to be dismissed by the Court merely because of any error or defect in the
notice, if such a notice:

(a) the name, description and residence of a plaintiff had been so given as to enable the appropriate authority to
identify the person serving the notice.

(b) the cause-of-action and relief claimed has been substantially indicated.

Section 80(3) of the Code of Civil Procedure, 1908 provides that no suit against the Government or public officer shall be
dismissed merely on the ground of error or defect (any technical) in the notice or any irregularity is service of the notice if
the abovementioned two conditions are fulfilled.

In case of Vasant Ambadas Pandit v. Bombay Municipal Corpn., MANU/MH/0348/1981 : AIR 1981 Bom 394: (1981) 83 Bom LR
248 the court held that though a notice under section 80 is a mandatory provision and it should be complied with to meet the
ends of justice properly but on the question whether this condition (requirement) could be waived by the party, it was held
that it is open to Government or the concerned officer to waiver this condition.

Does the term "Government" in section 80 of the Code of Civil Procedure, 1908, means and includes:

"Semi Government organisation"

In Kanta Prasad Singh v. Regional Manager F.C.I., MANU/BH/0104/1974 : AIR 1974 Pat 376, held that the
capital of the corporation was provided by the Central Government, as that its working was supervised or
directions were issued by the Government does not make it a "Government" within the meaning of section 80.
Although Code of Civil Procedure does not define "Government" but it cannot include a corporation constituted
under and Act of Parliament.

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In Kerala State Electricity Boards case, MANU/KE/0021/1989 : AIR 1989 Ker 89, it was observed that a statutory body as
Electricity Board of F.C.I., or any other category may be instrumentality of the State but it would not answer the description
of the "Government" as understood by law.

Thus Government or Semi Government organisation or corporation are different from the "Government authorities" therefore,
issues of notice under section 80 of the Code of Civil Procedure, 1908 is not a precondition for the filing of the suit against
them.

Sahebgouda (Dead) by LRs v. Ogeppa, MANU/SC/0257/2003 : (2003) 6 SCC 151: (2003) 3 Cal LT 44 (SO: JT 2003 (3) SC
338: (2003) 2 MLJ 143 (SC): (2003) 3 SCALE 446: (2003) 3 SCR 90: 2003 (2) UJ 914 (SC). In this case:

Facts: The original suit by plaintiff-appellants in the court of Munsif, Bijapur was filed for declaration that plaintiff are
ancestral pujaris and have pujakiri rights of performing puja in Amogsiddha temple at all times by turn among themselves and a
consequential decree of permanent injunction restraining defendants from interfering in plaintiff's right of puja of Amogsiddh
God in the temple.

In the pleading of the parties the Munsif framed 11 issues and issue 8 was whether the suit was barred on account of section
79 and section 80 of the Bombay Public Trust Act. The learned Munsif decided issue 8 in favour of appellants and held that
suit was not barred by aforesaid provisions of the Act.

Feeling aggrieved the appellants as well as respondents 2, 4 and 6 preferred appeals against the decree. The first Appellate
Court allowed the appeal of the appellants and dismissed the appeal of the respondent and decree passed by the Trial Court
was modified. The appellants were held to be hereditary pujaris of Amogsiddha Temple and respondents were prohibited to
cause obstruction in peaceful performance of puja by appellants.

Respondents preferred second appeal from judgment of Appellate Court. The High Court hearing second appeal directed to file
the application for registration of the temple before the Assistant Charity Commissioner. The question whether temple is public
trust could only be decided by Assistant Charity Commissioner and not Civil Court which was barred in section 80 of the
Bombay Public Trust Act. The second appeals were allowed and the suit filed by appellants was dismissed.

The appellants made appeals by special leave against judgments and decree dated 2nd July, 1992 of the High Court,
Karnataka.

The Supreme Court allowed the appeals and set aside the decree of the High Court on the following grounds.

The only relief claimed is declaration regarding the rights of appellants to function as hereditary pujaris and a consequential
decree for injunction for restraining the respondents from interfering with the aforesaid rights of the appellants. Therefore,
the bar of section 80 of the Bombay Public Trust Act, which by the express language used is would not apply.

INTERPLEADER SUIT (SECTION 88 AND ORDER XXXV)

Q. What do you mean by 'Interpleader suit'?

"To interplead" means "to litigate with each other to settle a point concerning a third party. " An interpleader suit is a
proceeding by which a person from whom some persons are claiming same property, debt or money and who does not himself
claim such property debt or money and neither dispute such debt, such person can file a suit claiming that he is ready to pay
or deliver the said property or money to rightful claimant and can protect himself from legal proceedings by calling upon such
claimants to interplead, that is to say claim against one and other so that title to the property or the debt may be decided.
Meaning thereby, an 'interpleader suit' is a suit in which the real dispute is not between the plaintiffs and defendants but
between the defendants only and the plaintiff is not really interested in the subject-matter of the suit.

Section 88 of the Code of Civil Procedure, 1908 provides that,--

Where two or more persons claim adversely to one another the same debts, sum of money or other property, movable
or immovable, from another person, who claims no interest therein other than for charges or costs and who is ready to
pay or deliver it to the rightful claimant, such other person may institute a suit of interpleader against all the claimants

(Page 5 of 7)
 for the purpose of obtaining a decision as to the person to whom the payment or delivery shall be made and of
obtaining indemnity for himself:

Provided that where any suit is pending in which the rights of all parties can properly be decided, no such suit
of interpleader shall be instituted.

Conditions to Institute Interpleader Suit

Following conditions must be satisfied to institute an interpleader suit:

(a) there must be some debt, sum of money or other property movable or immovable in dispute;

(b) two or more persons must be claiming it adversely to one another;

(c) the person from whom such debt, money or property is claimed, must not be claiming any interest therein other
than the charges and costs and he must be ready to pay or deliver it to rightful claimant; and

(d) there must be no suit pending in which the rights of the rival claimants can be properly decided.

Procedure

Order XXXV lays down the procedure relating to an interpleader suit. Rule 1 says that:

"Plaint in interpleader suit - In every suit of interpleader the plaint shall, in addition to the other statements necessary
for plaints, state--

(a) that the plaintiff claims no interest in the subject-matter in dispute other than for charges or costs;

(b) the claims made by the defendants severally; and

(c) that there is no collusion between the plaintiff and any of the defendants."

Rule 2 provides for the procedure of payment of thing claimed into court. It says:

"Where the thing claimed is capable of being paid into court or placed in the custody of the Court, the plaintiff may be
required to pay or place it before he can be entitled to any order in the suit."

In Syed Shamshul Haque v. Sitaram Singh, MANU/BH/0033/1978 : AIR 1978 Pat 151: 1978 (26) BLJR 325, it was held that,
when the dispute relates to a thing payable the Court may require the same to be paid or placed in the custody of the Court
as per rule 2 of Order XXXV.

Rule 3 lays down the procedure where defendant is suing plaintiff in the following words:

"Where any of the defendants, in an interpleader-suit is actually suing the plaintiff in respect of the subject-matter of
such suit, the court in which the suit against the plaintiff is pending shall, on being informed by the Court in which the
interpleader-suit has been instituted, stay the proceedings as against him; and his costs in the suit so stayed may be
provided for in such suit; but if, and in so far as, they are not provided for in that suit, they may be added to his
costs incurred in the interpleader-suit."

Procedure at first hearing is being provided under rule 4 as under:

"(1) At the first hearing the court may-

(a) declare that the plaintiff is discharged from all liability to the defendants in respect of the thing claimed,
award him his costs, and dismiss him from the suit; or

(b) if it thinks that justice or convenience so require, retain all parties until the final disposal of the suit.

(2) Where the Court finds that the admissions of the parties or other evidence enable it to do so, it may adjudicate
the title to the thing claimed.

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 (3) Where the admissions of the parties do not enable the Court so to adjudicate, it may direct--

(a) that an issue or issue between the parties be framed and tried, and

(b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall proceed to try
the suit in the ordinary manner."

In Edwyn Anthony Fereira v. R.K. Kuppuswamy Iyengar, MANU/AP/0786/2003 : AIR 2004 AP 165, at a particular stage since
the opening of the packet was considered to be essential in the interest of both parties, the counsel representing the revision
petitioner/first defendant also reported no objection if the Court permits the same and in view of the same, the impugned
order was passed. The same defendant, i.e., first defendant, who is no more, again raises an objection to the procedure
adopted by the Court below. This is totally unjustified and unwarranted. Evidently, the deceased first defendant was not
interested in the disposal of the matter and that is why the present revision was thought of with a view to stall the further
proceedings. It is no doubt true that the said petitioner is no more and at present the legal representatives are prosecuting
the present petition. The Court, therefore, rejected the objection for opening of sealed cover by defendant at the stage of
recording evidence on the ground that the court has not adopted proper procedure Order XXXV, rule 4.

Who cannot File Interpleader Suit (Order XXXV, rule 5)

An agent cannot sue his principal, or tenant his landlord for the purpose of compelling them to interplead with any persons
other than the persons claiming through such principal or landlords. Rule 5 reads as under:

"Nothing in this Order shall be deemed to enable agents to sue their principals, or tenants to sue their landlords, for
the purpose of compelling them to interplead with any persons other than persons making claim through such principals
or landlords."

© Universal law Publishing Co.

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 CHAPTER 8

APPOINTMENT OF RECEIVERS

(ORDER XL)

Q. Write short note on 'receiver'.

Order XL read as:

(1) Appointment of receivers.--

(1) Where it appears to the Court to be just and convenient the Court may by order--

(a) appoint a receiver of any property, whether before or after decree;

(b) remove any person from the possession or custody of the property;

(c) commit the same to the possession, custody or management of the receiver, and

(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization,
management, protection, preservation and improvement of the property, the collection of the rents and profits
thereof, the application and disposal of such rents and profits, and the execution of documents as the owner
himself has, or such of those powers as the Court thinks fit.

(2) Nothing in this rule shall authorise the Court to remove from the possession or custody of property any person
whom any party to the suit has not a present right so to remove.

This rule authorises a Court to appoint a receiver whenever it appears to be just and convenient. The matter is left to the
discretion of the Court such discretion must be, however, exercised not arbitrarily but judicially.

A receiver can only be appointed when just and convenient and when there is a prima facie case in favour of the plaintiff
calling for taking an urgent measure.

It does not necessarily holds that an application to be made in this regard but the Court can also appoint a receiver suo motu
and also can do so on the application of third party who is interested in preservation of the property.

In case of Krishna Kumar v. Grindlays Bank, AIR 1991 SC 889: (1991) 1 Cal LT 13 (SC): JT 1990 (3) SC 58:
MANU/SC/0200/1991 : (1990) 3 SCC 669: (1990) 2 SCR 961: 1990

(2) UJ 128 (SC), it was observed, following principles must be borne in mind before a receiver is appointed by the Court:

(a) that the appointment is on the discretion of the Court;

(b) the basic object of this appointment is the preservation of property in dispute pending judicial determination of
rights of party to it;

(c) a receiver should not be appointed unless the plaintiff prima facie proves that he has a very excellent chance of
succeeding in the suit; and

(d) since appointment of receiver deprives the opposite party from the possession of property before the final
judgment is pronounced, it should only be granted for preservation of manifest injury or wrong.

In Parmanand Patel v. Sudha A. Chowgule, MANU/SC/0377/2009 : AIR 2009 SC 1593, it was observed that a receiver having
regard to the provisions contained in Order XL, rule 1 of the Code of Civil Procedure, is appointed only when it is found to be
just and convenient to do so.

Appointment of a receiver pending suit is a matter which is within the discretionary jurisdiction of the Court. Ordinarily the
Court would not appoint a receiver save and except on a prima facie finding that the plaintiff has an excellent chance of
success in the suit. It is also for the plaintiff not only to show a case of adverse and conflict claims of property but also

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emergency, danger or loss demanding immediate action. Element of danger is an important consideration. Ordinarily, a receiver
would not be appointed unless a case has been made out which may deprive the defendant of a de facto possession. For the
said purpose, conduct of the parties would also be relevant.

Again in case of H.S. Mills Co. v. M.W. Pardhan, MANU/SC/0269/1966 : AIR 1966 SC 1707: (1996) 36 Comp Cas 426 (SC):
(1966) MANU/SC/0269/1966 : 60 ITR 508 (SC): (1966) 3 SCR 948, it has held by the Supreme Court that where a receiver is
appointed, clothed with all powers under clause 1(d) for the realisation of debts due from a company, he becomes a creditor
of the company and can maintain proceedings for the winding-up of the company for the realisation of debts, though it may
not be ordinary procedure for realisation of debts."

No hard and fast rule can be laid down for the Court to exercise power under this rule. This power (under the rules) depends
upon facts and circumstances of each cases. A Court may appoint a receiver not as a matter of course/procedure but as a
matter of prudence having regard to the justice of the situation.

In Issar Das Lulla v. Hari, MANU/TN/0228/1962 : AIR 1962 Mad 458, it was held that "appointment of the receiver is in the
discretion of the Court. A receiver should not be appointed when there is a bona fide possession of the property, unless there
is some cogent reason /grounds for interference. The main object and purpose of appointment of receivers is the preservation
of the subject-matter of the litigation pending a judicial determination of the rights of the parties thereto."

Appointment without application.--

According to the provision of Order XL, rule 1 of the Code of Civil Procedure, 1908, a Court can appoint a receiver in case
where there is no application from the party concerned but if it is satisfied that it be just and convenient to do so. It is not
necessary that the appointment only should be made when there is an application for that."

In Hiralal Patni v. Loonkaran Sethiya, MANU/SC/0015/1961 : AIR 1962 SC 21 on the issue of "position of a receiver" the Court
held that "a receiver is an officer of the Court. He is also a public servant within the meaning of section 2, clause (17) of the
Code of Civil Procedure, 1908."

Duration: In cases of Hiralal Patni v. Loonkaran Sethiya, MANU/SC/0015/1961 : AIR 1962 SC 21 (27): (1962) 1 SCR 868 and
Hindustan Petroleum Corp. Ltd. v. Ram Chandra, MANU/SC/0087/1994 : AIR 1994 SC 478, the Supreme Court has summarised
the law regarding the terms of the office of receivership. The Court held that:

(a) if a receiver is appointed in a suit until judgment, the appointment is brought to an end by the judgment, in the
action;

(b) if the receiver is appointed in a suit without his tenure being expressly defined, he will continue to be receiver till
he is discharged;

(c) although after the final disposal of the suit as between the parries to the litigation, the receiver's functions are
terminated, he would still be answerable to the Court as its officer till he is finally discharged;

(d) the Court has ample power(s) to continue the receiver even after the final decree if the exigencies of the case so
require.

A receiver cannot be appointed in execution of a decree in respect of a compulsory deposit in a provident fund to the
judgment-debtor as held by the Supreme Court in Union of India v. Heera Devi, MANU/SC/0003/1952 : AIR 1952 SC 227:
(1952) 1 SCR 765.

in this case the decree-holder, a lady, had obtained a money decree against one Ram Grahit Singh, a retired head clerk in the
dead letter office. In 1949, a receiver was appointed for collecting the monies standing to the credit of the judgment-debtor
in the Provident Fund with the postal authorities. The Union of India intervened for setting aside the order of appointment of
receiver and the Hon'ble Supreme Court allowing the appeal of Union of India held that no receiver can be appointed and such
a deposit cannot be assigned or charged and is not liable to any attachment.

It has been held in several cases that a receiver can be appointed even where the mortgage is a simple mortgage, but the
Hon'ble High Courts of Allahabad and Patna have taken a contrary view.

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The view in Charan Nandi Chaudhary v. Ranjit Prasad, MANU/BH/0039/1932 : AIR 1932 Pat 360, appears to be correct in view
of sub-rule (2) of rule 1 of Order XL of the Code of Civil Procedure, 1908 which lays down that "nothing in this rule shall
authorise the Court to remove............". In the case of simple mortgage the plaintiff gets a decree for sale and he has no
present right to be in possession of the property and, therefore, the defendant's possession cannot be taken away by the
appointment of receiver.

Enforcement of receiver's duties.--

Order XL, rule 4 read as: Where a receiver--

(a) fails to submit his accounts at such periods and in such form as the Court directs, or

(b) fails to pay the amount due from him as the Court directs;

(c) occasions loss to the property by his wilful defaults or gross negligence.

The Court may direct his property to be attached and may sell such property, and may apply the proceeds to make good any
amount found to be due from him or any loss occasioned by him, and shall pay the balance (if any) to the receiver.

So, above stated provisions are clear that if there is any default on the part of receiver in performance of his duties, Courts
are at liberty to proceed against him according to the laws.

Appointment of Commissions (Sections 75-78, Order XXVI)

Q. Write short note on 'Appointment of Commissions'.

Sections 75-78 and Order XXVI of the Code of Civil Procedure, 1908 are the provisions for appointment of commissions.
Clauses (e) to (g) appended to section 75 have been added by the amending Act of 1978. It was felt that the Court should
be authorised to issue commissions for technical and expert investigation. The power of the Court to issue commission is
discretionary in nature and not right of matter. The Court has also been empowered to appoint commissions to hold sales
otherwise than in execution, as also is issue commissions for the performance of ministerial act.

Section 75 reads as: Subject to such conditions as may be prescribed, the Court may issue a commission--

(a) to examine any person;

(b) to make or local investigation;

(c) to examine a adjust accounts; or

(d) to make a partition;

(e) to hold a scientific, technical or expert investigation;

(f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court
pending the determination of the suit; and

(g) to perform any ministerial act.

While Order XXVI, rule 1 deals with the cases in which the Court may issue commission to examine witnesses. It provides that
any Court in any suit issue a commission for the examination on interrogatories or otherwise of any person resident within the
local limits of its jurisdiction who is exempted under this Code of Civil Procedure from attending the Court or who is due to
sickness or infirming unable to attend it:

Provided that a commission for examination on interrogatories shall not be issued unless the Court, for reasons to be
recorded, thinks it necessary so to do.

In R. Ramakrishna Reddy v. M. Kamala Devi, MANU/AP/0425/2004 : AIR 2004 AP 484, the Commissioner is appointed by the
Trial Court only to propose a scheme of partition in terms of the preliminary decree. On the proposal made by the

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Commissioner, the Court would either draw lots or would itself allot the shares to the parties. Thus, it is held that it does not
mean that the proposal made by the Commissioner would be binding on the parties. Since the order under Revision only
directs the Commissioner to propose a scheme for partition of the properties covered by the preliminary decree, no prejudice
can be said to have been caused to the revision petitioner by that order.

Section 76 is a unique provision where the Code of Civil Procedure has provided for issuance of commission to another Court
in warranting circumstances. It reads as:

(1) A commission for examination of any person may be issued to any Court (not being a High Court) situated in a
State other than the State in which the Court of issue situated and having jurisdiction in the place in the person to be
examined resides.

(2) Enemy Court receiving a commission for the examination of any person under sub-section (1) shall examine him to
be examined pursuant thereto, and the commission(s), when it has been duly executed, shall be returned together
with the evidence taken under it to the Court from which it was issued, unless the order for issuing the commission
has otherwise directed, in which case the commission shall be returned in terms of such order.

Again, in section 78 where the execution of commissions issued by Foreign Courts is followed.

Rule 4 of Order XXVI of the Code of Civil Procedure further lays down that any Court may in any suit issue a commission for
the examination on interrogatories or otherwise of:

(a) any person resident beyond the local limits of its jurisdiction;

(b) any person who is about to leave such limits before the date on which he is required to be examined; and

(c) any person in the service of the Government who cannot in the opinion of the Court attend without detriment to
the public services.

In case of Filmistan (Pvt.) Ltd., Bombay v. Bhagwandas, MANU/SC/0019/1970 : AIR 1971 SC 61: (1970) 3 SCC 258, on the
provision or Order XXVI, the Supreme Court observed that:

"This rule provides for the examination on commission of any person residing within jurisdiction in certain
circumstances. The basis of this rule is that the evidence of a witness should be given in public Court and tested by
cross-examination. And the issue of a commission is of discretionary nature in the satisfaction of the concerned
Court."

The provisions under this order do not detract against inherent power of Supreme Court to appoint commission for making
inquiries into the facts relating to violation of fundamental rights.

Rule 9 of Order XXVI of the Code of Civil Procedure, 1908 deals with the commission to make local investigation. It provides in
general that in any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating
any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or
annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation
and to report thereon to the Court.

Rule 5 of Order XXVI is a provision where a commission or request to examine a witness could be made who is not within the
local limits of India.

Rule 10 is about the procedure and reports and depositions of the commission, which are to be used in evidence.

While rule 10A is for the commissions for scientific investigation, rule 10B of Order XXVI deals with the commission for
performance of ministerial act. Rule 10A provides that where any question arising in a suit involves any scientific investigation
which cannot, in opinion of the Court, be conveniently concluded before the Court, may, if it thinks it necessary or expedient
in the interest of justice so to do, issue a commission to such person as it thinks fit, directing him to enquire into such
questions and report therein.

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In case of T.K. Bose v. Savitri Devi, AIR 1996 SC 2752: 1996 VIAD (SC) 97: (1997) 1 Cal LT 49 (SC): JT 1996 (7) SC 480:
(1996) 5 SCALE 574: (1996) 10 SCC 96: (1996) Supp 4 SCR 17 the Court held that--

"non-consideration of the report of the special officer, appointed so, and surveyor appointed with the consent of both
the parties, that too after rejection of the objection filed in respect of the report, vitiates the ultimate conclusion.

Rule 10B provides for (that) where any question arising in a suit involves the performance of any ministerial act, which
cannot, in the opinion of the Court, be conveniently performed before the Court, the Court may, if, for the reasons to
be recorded, is of the opinion that it is necessary or expedient in the interest of justice so to do, issue a commission
to such person as it thinks fit, directing him to perform that ministerial act and report thereon.

Order XXVI, rule 11 lays that "in any suit in which an examination or adjustment of accounts is necessary, the Court
may issue a commission to such person as it thinks fit, directing him to make such adjustment or examination."

But in case of Padma Sen v. State of Uttar Pradesh, MANU/SC/0065/1960 : AIR 1961 SC 218: 1961 Cr LJ 322: (1961) 1 SCR
884 the Supreme Court held that "the Code does not make any provision for the appointment of commissioner who may seize
the account books which are in the possession of the plaintiff on the ground of the defendant's apprehension that the plaintiff
might have tampered with them. It was further held that the Court's inherent power cannot be invoked for such purposes."

Appointment of Commissioner under Inherent Powers

A Court has no inherent power under section 151 of the Code of Civil Procedure, 1908 to appoint a commissioner because
inherent powers do not extend over the substantive rights.

© Universal law Publishing Co.

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 CHAPTER 9

SUMMARY PROCEDURE (ORDER XXXVII)

The object underlying the summary procedure is to prevent unreasonable obstruction by the defendant who has no defence
and to assist expeditious disposal of cases.

The Order XXXVII provides for procedure in suits based on negotiable instruments or where the plaintiff seeks to recover debt
or liquidated amount. The essence of summary suit is that the defendant is not, as in ordinary suit, entitled as of right to
defend the suit. He must apply for leave to defend within the prescribed period (stipulated) of ten days. Such leave will be
granted only if the affidavit filed by the defendant discloses such facts as will make it incumbent upon the plaintiff to prove
consideration or such other facts as the court may deem fit. The provisions of the Order XXXVII are merely rules of
procedure. They do not alter the nature of the suit or jurisdiction of the Court(s).

Applicability

Q. What do you mean by 'summary suit'?

The provisions of Order XXXVII apply to High Courts, City Civil Courts, Courts of Small Causes and other courts to:

(a) suits upon bills of exchange, humdies and promissory notes, and

(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money payable by the defendant,
with or without interest, arising,--

(i) on a written contract; or

(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the nature of a debt
other than a penalty, or

(iii) on a guarantee, where the claim against the principle in respect of debt or liquidated demand only.

Difference between Summary Suit and Ordinary Suit

In an ordinary suit, the defendant has a right to defend the suit, while in a summary suit he is not entitled so except with the
prior leave of the Court.

Secondly, in the ordinary suit, decree cannot be set aside by the committing court (Trial Court) except on review but in a
summary suit the trial court can set aside so under special circumstances existing therein.

Procedure

Q. Whether leave to defend can be claimed as a matter of right under Order XXXVII, CPC? Discuss with the help of
decided cases.

Rules 2 and 3 of Order XXXVII provides the procedure for summary suits. Rule 2 provides that after the summons of the suit
having been issued to the defendant, the defendant must appear and the plaintiff will serve a summons for judgment on the
defendant. The defendant has no right to defend the suit unless he enters an appearance and gets leave from the court to
defend the suit. In default of this, the plaintiff will be entitled to a decree, as prayed for, which will be executed forthwith.

Rule 3 provides the mode of service of summons and leave to defend by the defendant. The defendant must apply for leave
within 10 days from the date of service of summons upon him and such leave will be granted only if the affidavit filed by the
defendant discloses such facts as may be deemed sufficient to entitle him to defend. But if a part of amount claimed by the
plaintiff, is admitted by the defendant to be due from him, leave to defend should not be granted unless such admitted
amount is deposited by him to the Court.

In Southern Sales and Services v. Sauernilch Design and Handles Gmbh, MANU/SC/4488/2008 : AIR 2009 SC 320, it is
observed that in the unamended provisions of rule 3, there was no compulsion for making any deposit as a condition
precedent to grant of leave to defend a suit by virtue of the second proviso to sub-rule (5), the said provision was altered to

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the extent that the deposit of any admitted amount is now a condition precedent for grant of leave to defend a suit filed
under Order XXXVII of the Code. The earlier concept of granting unconditional leave when a triable issue is raised on behalf of
the defendant, has been supplemented by the addition of a mandate, which has been imposed on the defendant, to deposit
any amount as admitted before leave to defend the suit can be granted.

In case of Raj Duggal v. Ramesh Kumar, MANU/SC/0393/1990 : AIR 1990 SC 2218: 1991 Supp (1) SCC 191, it was found that-
-

"the test whether leave to defend should be granted or not is to see whether the defence raises a real, honest and
bona fide dispute and raises a triable issue or not. If the Court is satisfied that the defence has raised a triable issue
for or a fair dispute has arisen, leave to defend should not be refused."

At the hearing of such summons for judgment, if the defendant does not apply for leave to defend or such leave is refused,
the plaintiff is entitled to a decree forthwith. The court or judge may for sufficient cause shown by the defendant, excuse the
delay in entering an appearance or in applying to leave to defend the suit.

In Wada Arun Asbestors (P.) Ltd. v. Gujarat Water Supply and Sewerage Board, MANU/SC/8462/2008 : AIR 2009 SC 1027, it
is held that an order imposing a condition of leave to defend the suit was a jurisdictional question and, thus, a revision
application would be maintainable.

In case of Ram Karandas v. Bhagwandas, MANU/SC/0286/1964 : AIR 1965 SC 1144: (1965) 67 Bom LR 779: (1965) 2 SCR 186,
it was held that--

"Under special circumstances, the court can set aside the decree and stay the execution and may grant leave to the
defendant to appear and defend the suit. However, inherent power under section 151 of the Code of Civil Procedure
cannot be exercised for setting aside such decree.

Test(s) for Granting Leave to Defend

The courts dealing with summary procedure are not straight away at discretion whether to grant leave to defend or not. Each
case must be decided on its own merits and facts and circumstances occurring therein.

In case of Punjab & Sindh Bank v. M/s. Ram Prakash Jagdish Chandler, (1992) BC 471. The Delhi High Court has held that
where a defence has never been taken by the defendants before the filing of the suit, such defendant does not raise a
"triable issue" before the Court, leave to defend cannot be granted.

Once the Court comes to the conclusion that there is a triable issue i.e., plea which is at least plausible, it must grant leave
to defend without inquiring the defendant either to pay the amount claimed for or so furnish required security thereof. In
other words when a prima facie defence is made out, the Court as a general rule grants leave.

Again, whether the defence raises a triable issue or not has to be ascertained by the Court from the pleading before it and
the affidavits of the parties and it is not open to it to call for evidence at that stage the leave to defend may be granted. But
where the triable issue is not dependant on facts to be investigated, and is simply a question of law, no leave should be given
to the defendant and the point may be decided at once.

Q. State the procedure for institution of suits, appearance of defendant and filing of leave to defend under Order
XXXVII of CPC.

In case of Santosh Kumar v. Bhai Mool Singh, (1958) 1 SCR 1211: MANU/SC/0013/1958 : AIR 1958 SC 321, on the issue of--
"Triable issue" for defence, the Supreme Court held that--

"the true test is to see whether the defence raise a real issue and not a sham one, in the sense that if the facts
alleged by the defendant are established there would be a good or even plausible defence on those facts. If the Court
is satisfied about that, leave must be given unconditionally."

In case of Kiranmoyee Dassi v. Chatterjee, AIR 1949 Cal 479, the High Court of Calcutta has laid down in the following basic
principles relating to the suits of summary nature:

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 (i) if the defendant satisfies the Court that he has a good defence to the claim on its merits, the plaintiff is not
entitled to leave to sign judgment and the defendant is entitled to unconditional leave to defend. (ii) if defendant
raises a triable issue indicating that he has a fair or bona fide defence although not a positively good defence. The
plaintiff is not entitled to sign judgment and the defendant is entitled to unconditional leave to defend.

(iii) if the defendant discloses such facts as may he deemed to be sufficient to entitle him to defend, that is to say
although the affidavit does not positively and immediately make it clear that he has a defence, yet shows such a state
of facts as leads to the interference that at the trial of the action he may be able to establish a defence to the
plaintiffs claim. The plaintiff is not entitled to judgment and the defendant is entitled to leave to defend but in to the
time, mode or trial but not as to payment into court or furnishing security.

(iv) if the defendant has no defence or defence setup is illusory or sham or practically moonshine then ordinarily
plaintiff is entitled to leave to sign judgment and the defendant is not entitled to leave to defend.

(v) if the defendant has no defence or defence is illusory or sham or practically moonshine then although ordinarily
plaintiff is entitled to leave to sign judgment, the court may protect the plaintiff by only allowing the defence to
proceed if the amount claimed is paid into court or otherwise secured and give leave to the defendant on such
condition, and thereby show mercy to the defendant by enabling him to try to prove defence.

The Division Bench of the Delhi High Court in Hiralal & Sons v. Luxmi Commercial Bank, (1984) 25 DLT CSN 33 has reaffirmed
the propositions of the above given case.

In a leading case of M/s Mechalec Engineers v. M/s Basic Equipment Corp., MANU/SC/0043/1976 : AIR 1977 SC 577: (1976) 4
SCC 687: (1977) 1 SLR 1060: 1976 (8) UJ 953 (SC) the Supreme Court had laid down the principles for leave to defend in an
Order XXXVII suit.

In this case, the partnership firm filed a suit for the recovery of Rs. 21,26,568 as principal and Rs. 7655 as interest at 12%
per annum, on the strength of cheque drawn by the defendant which, on presentation, was dishonoured. The plaintiff alleged
that the cheque was given as price of goods supplied. The defendant admitted the issue of cheque by its managing partner
but, it denied any priority of contract with the plaintiff firm. The defendant has its own version as to the reasons and purpose
for which the cheque was drawn. The suit was instituted under the provisions of Order XXXVII of the Civil Procedure Code,
1908 so that the defendant had to apply for leave to defend. This leave was granted unconditionally by the Trial Court.

The High Court of Delhi, on a revision application under section 115 of the Code of Civil Procedure, 1908, found that defences
were not bona fide and thus set aside the order of Trial Court.

The case come before the Supreme Court by special leave and the only-question arises is "could the High Court interfere in
exercise of its powers under section 115 of the Civil Procedure Code, 1908 in granting unconditional leave to defend to the
defendant appellant upon grounds which even a perusals of the order of the High Court shows to be reasonable?

The Court noticed the case of Jacob v. Booth Distillery Co., (1901) 85 LT 362 where it was held that whenever the defence
raises triable issue, leave must be given. Other cases too were discussed to show that this leave must be given
unconditionally where defences couldn't be shown to be dishonest in limine.

The Court in the present case taking note of Kiranmoyee Dassi v. Dr. J. Chattarjee, (1945) 49 Cal WN 246 (253) held that it is
only in cases where the defence is patently dishonest or so unreasonable that it couldn't be reasonably expected to succeed
that the exercise of discretion by the Trial Court to grant leave unconditionally may be questioned. The Supreme Court
consequently, set aside, the Judgment and order of High Court and restored that of Additional District Judge.

Milkhi Ram (India) Pvt. Ltd. v. Chamanlal Bros., MANU/SC/0376/1965 : AIR 1965 SC 1698

Facts of the case: The respondent filed a suit against the appellants on the original side of Bombay High Court. The suit was
based on promissory notes executed by the appellant. The respondents had agreed to finance the appellant's business of
export of pulses for which the appellant had obtained permission from Government of India. It was agreed that the appellant
company would act in consultation with the respondents who would be entitled to 5 per cent of the share in profits apart

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from their principal amount of loans advanced to appellant company. Because of change in circumstances, it was not found
possible to continue to finance the business of the appellant and the respondents cancelled the agreement. Thereafter the
appellant company was asked to repay the amounts advanced by the respondents together with interest @ 9 per cent as
agreed. This gave rise to a suit under Order XXXVII of the Code of Civil Procedure, 1908.

The appellants raised many objections one of which was that the claim of the respondents was based on the agreement and
that the claim would be for an unliquidated amount, and that consequently the suit could not be brought under Order XXXVII,
rules 2 and 3 of the Code of Civil Procedure, 1908. Another point raised by the appellant was that their affidavits disclosed a
triable issue. The learned trial Judge on the original side of the High Court granted leave to the appellants to defend the suit
subject to the condition that they deposit in the court security to the extent of Rs. 70,000, the suit being for the recovery of
Rs. 4,05,434.38. The Letters Patent Appeal against this order of the trial Judge was dismissed in a summary manner by the
High Court. The appellants came to the Supreme Court by special leave.

Decision by the Supreme Court

The learned Counsel of the appellants relied on Santosh Kumar v. Bhai Mool Singh, (1958) 1 SCR 1211: MANU/SC/0013/1958 :
AIR 1958 SC 321: (1958) 36 Mys LJ (NULL), where their Lordships of the Supreme Court observed that the true test is to see
whether the defence raises a real issue and not a sham one, in the sense that if the facts alleged by the defendant are
established there would be a good or even plausible defence on those facts. If the Court is satisfied about that, leave must
be given unconditionally. The trial Judge being already satisfied that the defence raised a triable issue was not justified in
imposing a condition to the effect that the defendants must deposit security just because they had not adduced any
documentary evidence in support of the defence.

Order XXXVII, rule 2 was amended by Bombay High Court to meet certain circumstances where even when some apparently
triable issue is raised, the Judge may impose conditions in granting leave to defend. Thus this is a matter in the direction of
the trial judge and in dealing with it, he ought to exercise his discretion judicially. Care must be taken to see that the object
of the rule to assist the expeditious disposal of commercial causes to which the Order applies is not defeated. Care must also
be taken to see that real and genuine triable issues are not shut out by unduly severe orders as a deposit. In a matter of this
kind, it would be undesirable and inexpedient to lay down any rule of general application.

In the end, the order of the trial judge was upheld, but the time of depositing security was extended for a period of two
months.

Rajni Kumar v. Suresh Kumar Malhotra, MANU/SC/0255/2003 : (2003) 5 SCC 315: AIR 2003 SC 1322: 2003 (4) ALD 82 (SC):
2003 (2) AWC 1597 (SC): 2003 (2) CTC 59: 2003 (4) JCR 213 (SC): JT 2003 (3) SC 307: (2003) 134 PLR 249: RLW 2003 (2)
SC 301: (2003) 3 SCALE 434: (2003) 3 SCR 66: 2003 (2) UJ 810 (SC), it was observed that, a careful reading of rule 4 shows
that it empowers, under special circumstances, the court which passed an ex parte decree under Order XXXVII to set aside
the decree and grant one or both to the following reliefs, if it seems reasonable to the court so to do and on such terms as
the court thinks fit:

(i) to stay or set aside execution, and

(ii) to give leave to the defendant:

(a) to appear to the summons, and

(b) to defend the suit.

The expression "special circumstances" is not defined in the Civil Procedure Code, 1908 nor it is capable of any precise
definition by the court because problems of human beings are so varied and complex. In its ordinary- dictionary meaning it
connotes something exceptional in character, extraordinary, significant, uncommon. It is an antonym of common, ordinary and
general. It is neither practicable nor advisable to enumerate such circumstances. Non-service of summons will undoubtedly be
a special circumstance. In an application under Order XXXVII, rule 4, the Court has to determine the question, on the facts of
each case, as to whether circumstances pleaded are so unusual or extraordinary as to justify putting the clock back by
setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the

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execution and also in regard to pre-decree matters viz. to give leave to the defendant to appear to the summons and to
defend the suit.

In considering an application to set aside ex parte decree, it is necessary to bear in mind the distinction between suits
instituted in the ordinary manner and suits filed under Order XXXVII of the Code of Civil Procedure, 1908. Rule 7 of Order
XXXVII says that except as provided thereunder the procedure in suit under Order XXXVII shall be the same as the procedure
in suits instituted in the ordinary manner. Rule 4 of Order XXXVII specifically provides for setting aside decree, therefore,
provisions of rule 13 of Order IX will not apply to a suit filed under Order XXXVII. Nonetheless, defendant may be declared ex
parte if he does not appear in response to summons, or after entering appearance before framing issues; or during or after
trial. Though addressing arguments is part of trial, one can loosely say that a defendant who remains absent at the stage of
argument, is declared ex parte after the trial. In an application under Order IX, rule 11, if a defendant is set ex parte and that
order is set aside, he would be entitled to participate in the proceedings from the stage he was set ex parte. But an
application under Order IX, rule 13 could be filed on any of the grounds mentioned thereunder only after a decree is passed ex
parte against the defendant. If the Court is satisfied that (1) summons was not duty served, or (2) he was prevented by
sufficient cause from appearing when the suit was called for hearing, it has to made an order setting aside the decree against
him on such terms as to cost or payment into court or otherwise as it thinks fit and thereafter on the day fixed for hearing by
court, the suit would proceed as if no ex parte decree had been passed. But in a suit under Order XXXVII, the procedure for
appearance of the defendant is governed by provisions of rule 3 thereof. A defendant is not entitled to defend the suit unless
he enters appearance within ten days of service of summons either in person or by a pleader and files in court at address for
services of notices on him. In default of his entering an appearance, the plaintiff becomes entitled to a decree for any sum
not exceeding the sum mentioned in the summons together with interest at the rate specified, if any, up to the date of the
decree together with costs. The plaintiff will also be entitled to judgment in terms of sub-rule (6) of rule 3. If the defendant
enters an appearance, the plaintiff is required to serve on the defendant a summons for judgment in the prescribed form.
Within ten days from the service of such summons for judgment, the defendant may seek leave of the Court to defend the
suit, which will be granted to him either unconditionally or on such terms as the Court may deem fit. Normally the Court will
not refuse leave unless the court is satisfied that facts disclosed by the defendant do not indicate substantial defence or
that defence intended to be put up is frivolous or vexatious. Where a part of the amount claimed by the plaintiff is admitted
by the defendant to be due from him, no leave to defend the suit can be granted unless the admitted amount is deposited by
him in court. Inasmuch as Order XXXVII does not speak of the procedure when leave to defend the suit is granted, the
procedure applicable to suits instituted in the ordinary manner, will apply.

It is important to note here that the power under rule 4 of Order XXXVII is not confined to setting aside the ex parte decree,
it extends to staying or setting aside the execution and giving leave to appear to the summons and to defend the suit. We
point out that as the very purpose of Order XXXVII is to ensure an expeditious hearing and disposal of the suit filed
thereunder, rule 4 empowers the Court to grant leave to the defendant to appear to summons and defend the suit if the
Court considers it reasonable so to do, on such terms as the Court thinks fit in addition to setting aside the decree.

Where on an application, more then one among the specified reliefs may be granted by the Court, all such reliefs must be
claimed in one application. It is not permissible to claim such reliefs in successive petitions as it would be contrary to the
letter and spirit of the provision. That is why where an application under rule 4 of Order XXXVII is filed to set aside a decree
either because the defendant did not appear in response to summons and limitation expired, or having appeared, did not apply
for leave to defend the suit in the prescribed period, the court is empowered to grant leave to the defendant to appear to
the summons and to defend the suit in the same applications. It is, therefore, not enough for the defendant to show special
circumstances which prevented him from appearing or applying for leave to defend, he has also to show by affidavit or
otherwise, facts which would entitle him leave to defend the suit. In this respect, rule 4 of Order XXXVII is different from rule
13 of Order IX.

State Bank of Saurashtra v. M/s Ashit Shipping Services (P) Ltd., MANU/SC/0314/2002 : AIR 2002 SC 1993: 2002 (3) ALD 83
(SC): II (2002) BC 536 (SC): (2002) 3 Cal LT 1 (SC): (2002) 110 Comp Cas 329 (SC): (2002) 3 GLR 2401: JT 2002 (4) SC 85:
(2002) 3 PLR 547: (2002) 3 SCALE 390: MANU/SC/0314/2002 : (2002) 4 SCC 736: (2002) 2 SCR 1074: 2002 (1) UJ 700 (SC),
the dispute in the suit relates to whether the document is guarantee or merely an indemnity. The 1st respondent termed the
document to be an indemnity/guarantee. The appellants denied that the document was a guarantee. In the application for

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leave to defend the appellant, inter alia, contended that the suit was suit for recovery of the price of goods and the interest
on the said amount. They pointed out that in the plaint the 1st respondent had not averred that they had suffered any loss
or damage.

The Trial Court by an order dated 30th October, 1996 refused leave to defend as the appellant (State Bank of Saurashtra)
had not raised any triable issue.

Both appellants and the 2nd respondents then filed revisions before High Court of Gujarat. Both revisions were dismissed by
the order of High Court. The High Court held no triable issue had been raised and the leave to defend was sought "nothing but
a sham".

The matter came to disposal before Supreme Court which held:

The document appears to be an indemnity bond. In case of indemnities the question of making good the loss arises
only when there is a proof that loss is suffered. It is to be seen that under sub-rule (2)(iii) of rule 1 of Order XXXVII a
claim could be made on the basis of guarantee. Significantly Order XXXVII does not provide for a claim based on an
indemnity bond. The reason is obvious. In case of claims on indemnity bonds the loss would first have to be proved.
Thus a summary procedure cannot be adopted in such cases.

Thus the impugned order and judgment of High Court dated 18th April, 2001 and trial court dated 30th October, 1996 are set
aside and the appellants are granted leave to defend.

© Universal law Publishing Co.

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 CHAPTER 10

TEMPORARY INJUNCTION (ORDER XXXIX)

Q. What are the principles to be followed for grant of interim injunction?

It is well-settled principle law that interim relief can always be granted in the aid of and as ancillary to the main relief
available to the party on final determination of his rights in a suit or any other proceeding. Therefore, a court undoubtedly
possesses the power to grant interim relief during the pendency of the suit. Temporary injunctions are thus injunctions issued
during the pendency of proceedings.

An injunction is a judicial proceeding whereby a party is required to do, or to refrain from doing, any particular act. It is a
remedy in the form of an order of the Court addressed to the particular person that either prohibits him from doing or
continuing to do a particular act (prohibitory injunction); or orders him to carry out a certain act (mandatory injunction).

In Food Corporation of India v. Sukha Deo Prasad, MANU/SC/0444/2009 : AIR 2009 SC 2330, the landlord obtained loan from
Bank for purpose of constructing godowns for the appellant-tenant. On default by landlord, the Bank filed a suit for recovery
of loan with interest. The Bank filed application for direction to tenant to deposit arrears of rent and to continue to deposit
rents in court and in default to pay interest. Said application would not fall under rules 1 and 2 of Order XXXIX. Therefore, it
is held that the interim direction to tenant to deposit arrears of rent in court and to continue to deposit rents in court with
condition that in default tenant would have to pay interest is not an injunction. A direction to pay money either by way of
final or interim order is not considered to be an injunction.

Injunctions are of two kinds.--

(i) Temporary and

(ii) Permanent.

A permanent injunction restrains a party forever from doing the specified act and can be granted only on merits at conclusion
of the trial after hearing both the parties to the suit. It is governed by sections 30 to 42 of the Specific Relief Act, 1963.

On the other hand, a temporary or interim injunction is that which, restrains a party temporarily from doing the specified act
and can be granted only until the disposal of the suit or until the further orders of the Court. It is regulated by the provisions
of Order XXXIX of the Code of Civil Procedure, 1908 and may be granted at any stage of the suit.

Where Temporary Injunction is Granted

The granting of temporary injunction is a matter of discretion of the Court. The discretion is to be exercised judicially
according to well-settled principles.

Rule 1 of Order XXXIX of the Code of Civil Procedure, 1908 provides that where in any suit it is proved by affidavit or
otherwise:

(a) that any property in disputed in a suit is in danger of being wasted, damaged or alienated by any party to the suit
or wrongfully sold is of a decree, or

(b) that the defendant threatens or intends to remove or dispose of his property with a view to defrauding his
creditors, or

(c) that the defendant threatens or dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit, or

(d) where a court is of the opinion that the interest of justice so requires [Manohar Lai v. Rai Bahadur Rao Raja Seth
Hiralal, MANU/SC/0056/1961 : AIR 1962 SC 527: (1962) Supp 1 SCR 450]

It is not the plaintiff alone who can apply for an interim injunction. A defendant also may make an application for grant of an
injunction against the plaintiff.

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Rule 2 of Order XXXIX provides injunction to restrain or continuance of breach: (1) In suit for restraining the defendant from
committing a breach of contract or otherwise injury of any kind, whether compensation is claimed in the suit or not the
plaintiff may, at any time, after the commencement of the suit and either before or after judgment, apply to the Court for a
temporary injunction to restrain the defendant from committing the breach of or injury complained of or any breach of
contract or injury of a like kind arising out of the same contract or relating to the same property.

(2) The Court may by order grant such injunction on such terms as to the duration of the injunction, keeping an account,
giving security or otherwise, as the Court thinks fit.

Conditions for grant of Temporary injunctions

In case of Kashinath Sansthan v. Srimad Sudhindra Thirtha Swamy, MANU/SC/1852/2009 : AIR 2010 SC 296 the court
prescribed the criteria for temporary injunction as follows:

"In order to grant an order of injunction, the party who seeks for grant of such injunction has to prove that he has
made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer
irreparable loss and injury if injunction is not granted. But it is equally well-settled that when a party fails to prove
prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the
party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial,
it is not open to the court to grant injunction in his favour even if he has made out a case of balance of convenience

being in his favour and would suffer irreparable loss and injury if no injunction is granted.

Principles Governing Temporary Injunction

Before granting of the temporary injunction, the following considerations are required to be satisfied:

(i) There is a prima facie case in favour of the plaintiff and against the defendant.

(ii) That irreparable injury is likely to be caused to the plaintiff which cannot be compensated for in terms of
money.

(iii) That the balance of convenience lies in favour of the plaintiff and against the defendant.

(iv) The conduct of the plaintiff should be fair and honest. Prima facie case.--

Explaining the ambit and scope of the connotation "prima facie" case, in Martin Burn Ltd. v. R.N. Banerjee,
MANU/SC/0081/1957 : AIR 1958 SC 79: (1958) I LLJ 247 SC: (1958) 1 SCR 514, the Supreme Court observed:

"A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the evidence
which is led in support of the same were believed while determining whether a case is prima facie one or not, the relevant
consideration is whether on the evidence led it was possible to arrive at the conclusion in question and not whether that was
the only conclusion which could be arrived at on that evidence."

In other words, the Court must be satisfied that there is a bona fide dispute raised by the applicant and on the facts before it
there is a probability of the applicant being established to the relief claimed by him.

In Mandati Ranganna v. T. Ramachandra, MANU/SC/7567/2008 : AIR 2008 SC 2291, it is held that while considering an
application for grant of injunction, the Court will not only take into consideration the basic elements in relation thereto, viz.,
existence of a prima facie case, balance of convenience and irreparable injury, it must also take into consideration the
conduct of the parties. Grant of injunction is an equitable relief. A person who had kept quiet for a long time and allowed
another to deal with the properties exclusively, ordinarily would not be entitled to an order of injunction. The Court will not
interfere only because the property is a very valuable one. The Court dealing with such matters must make all endeavours to
protect the interest of the parties.

In Paidsetti Bhanknarayna v. Paidsetti Rajeshwar Rao, AIR 1999 Ori 92 the Court observed that it is not necessary that the
plaintiff should establish his title to the property in suit. It is enough for him to show that he has a fair question to raise as to

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the existence of the right which he alleges and can satisfy the Court that the property in dispute should be preserved in its
present actual condition until such question be disposed of.

Non-compliance or Breach of Injunction

Q. What are consequences of disobedience or breach of injunction?

(1) In non-compliance or breach of order made under rules 1 and 2, the Court granting the injunction or making the
order or any court to which the suit proceeding is transferred, may order the property of such wrongdoer to be
attached and may also order such person to be detained in civil prison for a term not exceeding 3 months unless in the
meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force more than one year, at the end of which time, if the
disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award
such compensation as it thinks fit to the injured party and shall pay the balance, if any, to the party entitled thereto.

Thus, the consequences of breach of injunction are:

(i) The ordering of the attachment of property in question.

(ii) Detention of the petition in civil prison.

(iii) In the case where the breach continues for more than a certain period, the property attached may be sold.

A person is liable to the proceedings against under Order XXXIX, rule 2A even if he was not personally a party to the suit
provided he is shown to have been agent or servant of the defendant and to have violated the order of injunction inspite of
the knowledge that there was such an order [Ram Prasad Singh v. Subhodh Prasad Singh, MANU/BH/0067/1983 : AIR 1983
Pat 278; Brijendra Prasad Narain Singh v. State of Bihar, MANU/BH/0124/1963 : AIR 1963 Pat 449].

The expression 'person' occurring in sub-rule (2A) was employed merely compendiously to designate everyone in group,
defendant, his agent, servants and workman and not for excluding any defendant against whom the order of injunction has
primarily been passed otherwise the order of injunction would be frustrated and the power rendered ineffective and unmeaning
if the machinery for enforcement specially enacted didn't extend to everyone against whom the order of injunction is directed
(Ram Prasad Singh v. Subhodh Prasad Singh, AIR 1983 Pat 298).

Shiv Kumar Chadha (Appellant) v. M.C.D., MANU/SC/0522/1993 : (1993) 3 SCC 161: JT 1993 (3) SC 238: (1993) 2 SCALE
772: (1993) 3 SCR 522, appeals have been filed against an order of Delhi High Court directing M.C.D. to issue notices to
buildings where illegal constructions have been made. Appellants sought interference of Supreme Court with that part of the
order stating:

"No civil suit will be entertained by any Court in Delhi in respect of any action taken or proposed to be taken by corporation
with regard to sealing for demolition of any building or any part thereof." Any person aggrieved by order of sealing/or
demolition however, have the right of filing appeal to Appellate Tribunal under the Municipal Act, which had jurisdiction to
grant interim relief. The unburned order clearly ousts the jurisdiction of a court in Delhi to entertain suit in connection with
demolition of any part of building which according to corporation is unauthorised and illegal.

The Apex Court discussed law on interim relief (Temporary injunction):

The primary object of filing suit challenging validity of the order of demolition is to restrain such demolition with the
intervention of the court. In such a suit the plaintiff is more interested in getting an order of interim injunction.

Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of plaintiff only if it is
proved to the satisfaction of the court that unless defendant is restrained by an order of injunction, an irreparable injury be
caused to plaintiff. It is a matter of common knowledge that on many occasions even public interest also suffers in view of
interim orders of injunction, because persons in whose favour such orders are passed are interested in perpetuating the
contraventions made by them by delaying, the final disposal of such applications. The court should be always willing to extend
its hand to protect citizen who is being wronged or is being deprived of the property without any authority of law or without

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following the procedure which are fundamental and vital in nature.

Power to grant injunction is extraordinary power vested in the Court to be exercised taking into consideration facts and
circumstances of a particular case. The Court should be more cautious when the said power is being exercised without notice
of hearing the party who is to be affected by the order so passed.

The imperative nature of the proviso has to the judged from contents of rule 3 to Order XXXIX of the Code of Civil Procedure,
1908. Before the proviso aforesaid was introduced. Rule 3 said "the Court shall in all cases, except where it appeals that the
object of granting the injunction would be defeated by delay, before granting an injunction, direct notice of application for
same to be given to the opposite party." The proviso was introduced to provide a condition, where court proposes to grant
an injunction without giving notice of application to opposite party being of opinion that the object of granting injunction itself
shall be defeated by delay. The requirement of recording reason for grant of ex parte injunction, cannot be held to be mere
formality. The requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a
right which such party claims to exercise either under a statute or under common law, must be informed why instead of
following requirement of rule 3. The procedure prescribed in proviso is followed.

The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side,
under exceptional circumstance. Such ex parte order have far reaching effect, as such a condition has been imposed that
Court must record reason before passing such order. If it is held that the compliance with the proviso aforesaid is optional and
not obligatory, the introduction of proviso by the parliament shall be a justice exercise and that part of rule 3 will be
purposeless for all practical purposes. Ex parte injunctions are for cases of real urgency, where there has been a true
impossibility of giving notice of motion.

Ex parte Ad Interim Injunction (rule 3 of Order XXXIX)

Rule 3 of Order XXXIX provides that:

"The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by
the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite
party:

Q. What are the principles for grant of 'ex parte ad-interim Injunction' under CPC?

Provided that, where it is proposed to grant an injunction without giving notice of the application to the
opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction
would be defeated by delay, and require the applicant--

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order
granting the injunction has been made, a copy of the application for injunction together with--

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that day,
an affidavit stating that the copies aforesaid have been so delivered or sent."

Therefore, this rule requires the applicant to issue notice to the opposite party before injunction is granted. Though, the
Court has power to grant ex parte injunction without issuing notice or hearing the party who will be affected by such order,
the said power can be exercised under exceptional circumstances.

It is important to note that where it is proposed to grant an injunction without giving notice of the application to the opposite
party, i.e., grant of ex parte ad interim injunction the Court shall record the reasons for its opinion that the objects of
granting the injunction would be defeated by delay and require the applicant:

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 (1) to deliver the opposite party or to send him by registered post immediately after the order granting the injunction
has been made, copy of the application for injunction along with:

(i) a copy of affidavit filed in support of the application.

(ii) a copy of plaint; and

(iii) copy of documents on which applicant relies.

(2) In Morgan Stanley v. Kartic Das, MANU/SC/0553/1994 : (1994) 4 SCC 225: (1994) 96 Bom LR 933: (1995) 1 Cal LT
18 (SC): (1994) 81 Comp Cas 318 (SO: JT 1994 (3) SC 654: (1994) 2 SCALE 1121: (1994) Supp 1 SCR 136, the
Supreme Court indicated the factors which should weigh with the Court in grant of ex parte injunction:

(i) whether irreparable or serious mischief will ensue to the plaintiff,

(ii) whether the refusal of ex parte injunction would involve greater injustice than the grant of it would involve.

(iii) the Court will also consider the time at which the plaintiff first had notice of the act complained so that the
making of improper order against a party in his absence is prevented.

(iv) that the Court will consider whether the plaintiff had acquiesced for sometime and in such circumstances it
will not grant ex parte injunction.

(v) the Court would expect a party applying for ex parte injunction to show utmost good faith in making the
application.

(vi) even if granted, the ex parte injunction would be for a limited period of time.

(vii) general principles like prima facie case, balance of convenience and irreparable loss would also be
considered by the Court. The purpose of rule 3, Order XXXIX is to enable the opposite party to show cause
against issuance of such injunction and if injunction issued without notice, to enable the opposite party to file
objections thereto and by this to prevent the petitioner to retain undue advantage of the situation and abuse
of the process of law.

CASE LAWS

In Skyline Education Institute (Pvt.) Ltd. v. S.L. Vaswani, MANU/SC/0009/2010 : AIR 2010 SC 3221 the discretion of court in
granting of injunction was interpreted as that once the court of first instance exercises its discretion to grant or refuse to
grant relief of temporary injunction and the said exercise of discretion is based upon objective consideration of the material
placed before the court and is supported by cogent reasons, the appellate court will be loath to interfere simply because on a
de novo consideration of the matter it is possible for the appellate court to form a different opinion on the issues of prima
facie case, balance of convenience inreparable injury and equity. Unless the appellate court comes to the conclusion that the
discretion exercised by the trial court in refusing to entertain the prayer for temporary injunction is vitiated by an error
apparent or perversity and manifest injustice has been done, there will be no warrant for exercise of power.

In Manohar Lal v. Rai Bahadur Rao Raja Seth Hira Lal, MANU/SC/0056/1961 : AIR 1962 SC 527: (1962) Supp 1 SCR 450, the
issue involved was, i.e., whether the Court could exercise its inherent power when there was specific provisions in the Code
of Civil Procedure, 1908 for issuance of injunctions viz. section 94 and Order XXXIX. Relevant portion of section 94 reads "In
order to prevent the ends of justice from being defeated the Court may, if it is so prescribed, grant a temporary injunction."

In this case: The appellant and the respondent entered into a partnership at Indore for working coal mines at Kajoragram and
manufacture of cement, etc., in the name and style of 'Diamond' industries. The head office of the partnership was at Indore.
The partnership was dissolved by a deed of dissolution. Under the terms of this deed, the appellant made himself liable to
render full, correct and true account of all the moneys advanced, by the respondent and also to render accounts of the said
partnership and its business. The second proviso at the end of the covenants in the deed of dissolution was
"................parties entered into the partnership agreement at Indore all disputes and differences whether regarding money or
also their rights and liabilities of the parties hereto shall be decided amicably or in court at Indore and no where else."

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The appellant instituted suit in the Court of the subordinate Judge at Asansol against the respondent for the recovery of Rs.
1,00,000 on account of his share in the capital and assets of partnership firm and Rs. 18,000 as interest for detention of the
money or as damages or compensation for wrongful withholding of payment. The main ground given by the respondent was
that the accounts submitted by the appellant had not been properly kept and that many entries appeared to be wilfully
falsified, evidently with mala fide intentions and that there appeared in the account books various false and fictitious entries
causing wrongful loss to the respondent and wrongful gain to the appellant. The respondent filed a petition under section 34
of the Arbitration Act in the Asansol Court praying for the stay of suit in view of Arbitration agreement meanwhile the
respondent filed civil suit in the Court of District Judge, Indore against the appellant and prayed for a decree for Rs. 1,90,519
and further interests on the footing of settled account in the alternative for a direction to the appellant to render full and
true accounts of the partnership. The respondent applied in the Court at Asansol for the stay of the suit in the exercise of its
inherent powers.

In the context of above given facts issue was struck. Has this Court jurisdiction to entertain and try this suit? The Court of
Asansol held that there could be no scope for acting under section 151 of the Code of Civil Procedure, 1908, as section 10 of
the Code of Civil Procedure, 1908 had no application to the suit, it having been instituted earlier than the suit at Indore. The
High Court of Calcutta confirmed this order.

The Indore Court issued interim injunction under Order XXXIX of the Code of Civil Procedure, 1908 to the appellant restraining
him from proceeding with his Asansol suit pending decision of the Indore suit. It may be mentioned here that the respondent
didn't state in his application that his application for the stay of suit at Asansol had been finally dismissed by the High Court
of Calcutta. Against the order of Indore Court the appellant went in appeal to the High Court of Judicature at Madhya Bharat.

The High Court dismissed the appeal. The learned Judges agreed with the contention that Order XXXIX didn't apply to the
facts of the case. They, however held that the order of injunction could be issued in the exercise of inherent powers of the
Court under section 151 of the Code of Civil Procedure, 1908. It is against this order that the appellant preferred this appeal
by special leave.

The Supreme Court observed as follows:

(i) It is well-settled that the provisions of the Code of Civil Procedure are not exhaustive, for the simple reason that
the legislature is incapable of contemplating all the possible circumstances which may arise in future litigation and
consequently for providing the procedure for them.

(ii) No party has a right to insist on the Court's exercising inherent jurisdiction and the Court exercises it only when it
considers it absolutely necessary for the end of justice to do so. The powers are to be exercised in exceptional
circumstances for which court lays down no procedure.

(iii) There is no such expression in section 94 which expressly prohibits the issue of temporary injunction in
circumstances not covered by Order XXXIX or by any rules made under the Code likewise there is nothing in Order
XXXIX which provides specifically that temporary injunction is not to be issued in the cases which are not mentioned in
those rules.

(iv) Section 151, Code of Civil Procedure, 1908 itself says that nothing in the Code of Civil Procedure, 1908 shall be
deemed to limit or otherwise affect the inherent power of the Court to make orders necessary for the ends of justice.

(v) The inherent power has not been confirmed upon the Court, it is a power inherent in the Court by virtue of its duty
to do justice between the parties before it Further, when the Code itself recognises the existences of the inherent
power of the Court there is no question of implying the powers outside the limits of this Code.

(vi) The case would be different where the rights of an individual are affected. In such cases, the specific provisions
of Code of Civil Procedure, 1908 are to be used without any intervention by way of inherent powers of the Court.
Inherent powers are not the powers over the substantive rights which any litigant possess but the same may definitely
be used for procedural matter such as a case of grant of temporary injunctions.

The Court held that the suit at Indore which had been instituted later could be stayed in view of section 10 of the Code of

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Civil Procedure, 1908. The provisions of that section are clear, definite and mandatory. A court in which subsequent suit has
been filed is prohibited from proceeding with the trial of the suit in certain specified circumstances. When there is a special
provision in the Code of Civil Procedure for dealing with the contingencies of two such suits being instituted, recourse to the
inherent powers under section 151 is not justified.

Shah, J. agreed with the conclusions that the appeal must succeed but he did not agree with the view that the Civil Courts
have inherent jurisdiction in cases not covered by Order XXXIX.

In Thomson Press (I) Ltd. v. M/s Advertising Plus, 80 (1999) DLT 648 Order III, rules 1 and 2 were in issue. Removal of
staircase, errected in open space on road side. Stair-case constructed without permission of MCD is liable to be removed.
Defendant directed to remove staircase erected in open space on road side within two months. In event of failure to do so
MCD, shall remove. As the said stair-case constructed by the dependent without its permission of the MCD. It was held that
the plaintiff not to create any obstruction or hindrance for defendant in use of existing staircase on back side of property.

Interlocutory Orders

Interlocutory orders are orders passed by a court during the pendency of a suit. Such orders are made vis-a-vis a suit while it
is receiving the active consideration of the Court and before the final adjudication upon subject-matter of suit. They relate to
matters of procedure as they arise during the trial of the suit or in the course of execution proceedings. They are passed to
assist the parties in the prosecution of their case, or for the purpose of protecting the subject-matter of the suit or for
ensuring the determination of the merits of the case. They, however, do not determine the substantive rights of the parties in
respect of subject-matter of the suit.

Thus, like temporary injunction, interlocutory orders are intended to prevent the ends of justice from being frustrated (by the
acts of parties to a suit). Rules 6 to 10 of Order XXXIX mention certain interlocutory orders. The Court has the power to
order interim sale of movable property (subject-matter of suit) which is subject to speedy and natural decay (rule 6). It can
order for the detention, preservation or inspection of any property (subject-matter of suit (rule 7). Order directing the
appointment of a receiver also fall within the meaning of interlocutory orders.

Modi Entertainment Network v. W.S.G. Cricket P.T.E. Ltd., (2003) 1 SCALE 388: MANU/SC/0039/2003 : AIR 2003 SC 1177:
2003 (1) Arb LR 533 (SC): 2003 (1) CTC 429: JT 2003 (1) SC 382: (2003) 2 MLJ 98 (SC): (2003) 4 SCC 341: (2003) 1 SCR
480, in this case the Hon'ble Apex Court laid down the following principles:

(1) In exercising discretion to grant an anti-suit injunction the Court must be satisfied of the following aspects; (a)
the defendant, against whom injunction is sought, is amenable to the personal jurisdiction of the Court; (b) if the
injunction is declined the ends of justice will be defeated and injustice will be perpetuated; and (c) the principle of
comity-respect for the Court in which the commencement or continuance of action/proceeding is sought to be
restrained-must be borne in mind;

(2) in a case where more forums than one are available, the court in exercise of its discretion to grant anti-suit
injunction will examine as to which is the appropriate forum (forum conveniens) having regard to the convenience of
the parties and may grant anti-suit injunction in regard to proceeding which are oppressive or vexatious or in a forum
non-convenience;

(3) where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract, the recitals therein in
regard to exclusive or nonexclusive jurisdiction of the Court of choice of the parties are not determinative but are
relevant factors and when a question arises as to the nature of jurisdiction agreed to between the parties the Court
has to decide the same on a true interpretation of the contract on the facts and circumstances of each case;

(4) a court of natural jurisdiction will not normally grant anti-suit injunction against a defendant before it where parties
have agreed to submit to the exclusive jurisdiction of a court including a foreign court, a forum of their choice in
regard to the commencement or continuance of proceedings in the Court of choice, save in an exceptional case for
goods and sufficient reasons, with a view to prevent injustice in circumstances such as which permit a contracting
party to be relieved of the burden of the contract; or since the date of the contract the circumstances or subsequent
events have made it impossible for the party seeking injunction to prosecute the case in the Court of choice because

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 the essence of the jurisdiction of the Court does not exist or because of a vis major or force majeure and the like.

(5) where parties have agreed, under a non-exclusive jurisdiction clause, to approach a neutral foreign forum and be
governed by the law applicable to it for the resolution of their disputes arising under the contract, ordinarily no anti-
suit injunction will be granted in regard to proceedings in such a forum conveniens and favoured forum as it shall be
presumed that the parties have thought over their convenience and all other relevant factors before submitting to
nonexclusive jurisdiction of the Court of their choice which cannot be treated just an alternative forum;

(6) a party to the contract containing jurisdiction clause cannot normally be prevented from approaching the Court of
choice of the parties as it would amount to aiding breach of the contract; yet when one of the parties to the
jurisdiction clause approaches the Court of choice in which exclusive, or non-exclusive jurisdiction is created, the
proceedings in that Court cannot per se be treated as vexatious or oppressive nor can the Court be said to be forum
non-conveniens; and

(7) the burden of establishing that the forum of choice is a forum non-conveniens or the proceedings therein are
oppressive or vexatious would be on the party so contending to aver and prove the same.

In Dalpat Kumar v. Prahlad Singh, MANU/SC/0056/1993 : AIR 1993 SC 276: (1992) 2 MLJ 49 (SC): 1992 (1) UJ 501
(SC).

It was observed that:

Order XXXIX, rule 1(c) provides that temporary injunction may be granted where, in any suit, it is proved by the
affidavit or otherwise, that the defendant threatens to disposses the plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such
act or make such other order for the purpose of staying and preventing........ or dispossession of the plaintiff or
otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit until the
disposal of the suit or until further orders. Pursuant to the recommendation of the Law Commission clause (c) was
brought on statute by section 88(i)(c) of the Amending Act 104 of 1966 with effect from 1st February, 1977. Earlier
thereto there was no express power except the inherent power under section 151 of the Code of Civil Procedure, 1908
to grant ad interim injunction against dispossession. Rule 1 primarily concerns with the preservation of the property in
dispute till legal rights are adjudicated. Injunction is a judicial process by which a party is required to do or to refrain
from doing any particular act. It is in the nature of preventive relief to a litigant to prevent future possible injury. In
other words, the Court in exercise of the power of granting ad interim injunction is to preserve the subject-matter of
the suit in the status quo for the time being. It is settled law that the grant of injunction is a discretionary relief. The
exercise thereof is subject to the Court satisfying that (1) there is a serious disputed question to be tried in the suit
and that an act, on the facts before the Court, there is probability of his being entitled to the relief asked for by the
plaintiff/defendant; (2) the Court's interference is necessary to protect the party from the species of injury. In other
words, irreparable injury or damage would ensure before the legal right would be established at trial; and (3) that the
comparative hardship or mischief or inconvenience which is likely to occur from withholding the injunction will be
greater than that would be likely to arise from granting it.

APPEALS

Q. Discuss the purpose of 'appeal'. What are the essential ingredients of an appeal?

The expression 'appeal' has not been defined any where under the Code of Civil Procedure, 1908. However, it may be defined
as "the judicial examination of decision by a Higher Court of the decision of an inferior court".1

The Privy Council in Nagendra Nath v. Suresh Chandra, MANU/PR/0017/1932 : AIR 1932 PC 165: (1932) 34 Bom LR 1065,
however, held that "any application by a party of an Appellate Court, asking to set aside or reverse a decision of a
subordinate court, is an appeal within the ordinary meaning of the term. It is a right of entering a superior court and invoking
its aid and interposition to redress an error in the Court below"; Dayawati v. Inderjit, MANU/SC/0022/1966 : AIR 1966 SC
1423: (1966) 3 SCR 275.

(Page 8 of 24)
Essential Ingredients of an Appeal

Every appeal has three basic/essential elements:

(i) an adjudication of a suit by a court;

(ii) an aggrieved person (not necessarily a party to the proceedings);

(iii) a review body ready and willing to entertain a appeal.

Section 96 of the Code of Civil Procedure, 1908 provides for the 'appeal from original decree' as under:

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force,
an appeal shall lie from every decree passed by any court exercising original jurisdiction to the Court authorized to
hear appeals from the decisions of such court.

________________

1. Cham ber's 21st Century Dictionary (1997, Edn.), p. 59.

(2) An appeal may lie from an original decree passed ex parte.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties.

(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of
Small Causes, when the amount or value of the subject-matter of the original suit does not exceed ten thousand
rupees.

Section 96 of the Code of Civil Procedure, 1908 as mentioned above distinguishes the cases fit as well as unfit for appeal. It
does not enumerate the person who may file appeal. Thus, as per the section, the right to appeal is recognized:

(a) from every decree passed by court of original jurisdiction;

(b) from an original decree which is passed ex parte, i.e., without hearing the respondent(s);

The vested right of appeal is destroyed when:

(a) the original decree is shown to have been passed with the consent of parties. The rational behind this is, it
creates an estoppel between the parties as a judgment on consent.

(b) decree passed is in petty suits where the amount of value of suit does not exceed ten thousand rupees.

Nature of Right of Appeal

Q. Discuss the nature of right of appeal.

A right of appeal is not a natural inherent right, rather appeal is a creature of statute and there is no right to appeal unless
clearly granted and in express terms by statute. In other words, a right of appeal infers in no one and therefore an appeal for
its maintainability must have the clear authority of law; Ganga Bai v. Vijay Kumar, MANU/SC/0020/1974 : (1974) 2 SCC 393:
AIR 1974 SC 1126: (1974) 3 SCR 882. The right of appeal, which is a statutory right, can be conditional and qualified. It
cannot be said that such a law would be violative of article 14 of the Constitution. If the statute does not create any right of
appeal, no appeal can be filed. The right of appeal inheres in no one and, therefore, for the maintainability of an appeal there
must be authority of law; Gujarat Agro Industries Co. Ltd. v. Municipal Corp. of City of Ahmedabad, (1999)

3 LRI 14: MANU/SC/0300/1999 : AIR 1999 SC 1818: JT 1999 (3) SC 259: (1999) 3 SCALE 40: (1999)

4 SCC 468: (1999) 2 SCR 895: 1999 (2) UJ 792 (SC). It is a vested right and accrues to the litigant and exists as on and from
the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced. A single
right of appeal is more or less a universal requirement. It is based on the principle that all men are fallible and judges are
human beings who may commit a mistake. An appeal is a continuation of a suit. An appeal from an original decree is called a

(Page 9 of 24)
first appeal. An appeal from an appellate decree is called a second or special appeal. The Appellate Court in case of first
appeal can re-examine the questions of fact and law and may even re-appreciate evidence. The powers of first Appellate
Courts are coextensive with those of Civil Courts of original jurisdiction. First appeal may be filed on a question of law or on a
mixed question of fact and law which arise in the case; Manikchandra v. Devdas Nandy, AIR 1986 SC 556.

Who may File an Appeal?

The following persons are entitled to file appeal under section 96 of the Code of Civil Procedure, 1908:

(i) A party to a suit, who is aggrieved or adversely affected by the decree, or if such party is dead his legal
representative.

(ii) A person claiming under a party to the suit a transfer of the interests of such party, who so far as such interest is
concerned, is bound by the decree, provided his name is entrusted on the record of the suit.

(iii) A guardian ad litem appointed by the Court in a suit by or against a minor.

(iv) Any other person, with the leave of the Court, if he is adversely affected by the decree.

The ordinary rule is that only a party to a suit adversely affected by the decree or any of his representative in interest may
file an appeal. But a person who is not a party to a decree or order if he is either bound by the order or is aggrieved by it or is
prejudicially affected by it; Jatan Kanwar v. Golcha Properties, MANU/SC/0041/1970 : AIR 1971 SC 374: (1971) 41 Comp Cas
230 (SC): (1970) 3 SCC 573: (1971) 3 SCR 247.

Maintainability of Appeal

(i) Appeal against preliminary decree.--

All decrees are appealable unless barred by the Code of Civil Procedure, 1908. Therefore, an appeal lies against
preliminary decree as final decree but as a machinery for the implementation of a preliminary decree. Failure to appeal
against preliminary decree precludes the aggrieved party from challenging the final decree. Hence, no appeal lies
against the final decree, where no appeal was filed against preliminary decree.

(ii) Appeal against judgment.--

Appeal against judgment is not maintainable under the Code of Civil Procedure, 1908. However, the aggrieved party,
may file appeal against judgment, if a decree is not drawn up by the Court.

(iii) Appeal against ex parte decree.--

An appellant in an appeal against ex parte decree can question the validity of order and plead to adjourn and proceed
with the suit since the corrective jurisdiction of the Appellate Court includes consideration of procedural errors;
Muttangi Ranga Nayakamma v. WKV Mahalakhmi, MANU/AP/0096/1972 : AIR 1972 AP 117. The Code prescribes for
setting aside of the ex parte decree under Order IX, rule 13 and when a plea under the said provision fails, an appeal is
specifically provided under clause (d) of Order XLIII, rule 1 of the Code of Civil Procedure, 1908 against an order of a
Trial Court refusing to set aside ex parte decree.

(iv) Appeal against 'Finding' and 'Dead Person'.--

A 'Finding' recorded by a court of law may or may not amount to a 'Decree' or an 'Order' where such a finding does not
amount to a 'Decree' or an 'Order', no appeal lies against such adverse finding. Similarly, no appeal can be instituted
against 'Dead person'.

SECOND APPEALS

Q. When a 'second appeal' is maintainable before the High Court?

Sections 100 to 103, 107, 108 and Order XXXII of the Code of Civil Procedure, 1908 deal with second appeals. According to
section 100 of the Code of Civil Procedure, 1908:

(Page 10 of 24)
 (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an
appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court, if the
High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law
involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that
question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be
allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to
hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it
is satisfied that the case involves such question.

Section 100 of the Code of Civil Procedure as amended by the Amendment Act, 1976, has drastically changed and
considerably curtailed the scope of second appeal. Under the old section a second appeal was maintainable on any of the
three grounds set out in clauses (a), (b) or (c) which were liberally interpreted but as of now, the scope and ambit of the
jurisdiction of High Court in cases of second appeal is very much narrowed down. From section 100 the following
consequences ensue:

(i) The High Court must be satisfied that the case involved a Substantial question of Law [Section 100(1)].

(ii) The Memorandum of appeal must precisely state such question [Section 100(3)].

(iii) The High Court at the time of admiring the appeal should formulate such question [Section 100(4)].

(iv) The appeal shall be heard only on that question [Section 100(5)].

(v) At the hearing of appeal, the respondent can agree that the case does not involve such question [Section
100(5)].

(vi) The High Court is, however, empowered to hear the second appeal on any other substantial question of law, not
formulated by it, if it is satisfied that the appeal involves such question. The High Court however, has to record
reasons for doing so. [Proviso to section 100(5)].

Under section 100 of the Code of Civil Procedure, 1908 after 1976 Amendment, it is essential for the High Court to formulate a
substantial question of law and it is not permissible to reverse the judgment of the first Appellate Court without doing so;
Ishwar Dass Jain v. Sohan Lai, MANU/SC/0747/1999 : (2000) 1 SCC 434: AIR 2000 SC 426: 2000 (1) CTC 359: JT 1999 (9) SC
305: (2000) 125 PLR 56: RLW 2000 (1) SC 80: (1999) 7 SCALE 277: (1999) Supp 5 SCR 24: 2000 (1) UJ 666 (SC).

Yet again in Roop Singh v. Ram Singh, MANU/SC/0204/2000 : (2000) 3 SCC 708: 2001 (1) BLJR 488: JT 2000 (3) SC 474:
2000 (3) MPHT 18: (2000) 2 SCALE 577: (2000) 2 SCR 605: 2000 (2) UJ 825 (SC), this court has expressed that the
jurisdiction of a High Court is confined to appeals involving substantial question of law. Para 7 of the said judgment reads:

"7. It is to be reiterated that under section 100 of the Code of Civil Procedure, 1908 jurisdiction of the High Court to
entertain a second appeal is confined only to such appeals which involve a substantial question of law and it does not
confer any jurisdiction on the High Court to interfere with pure questions of fact while exercising its jurisdiction under
section 100 of the Code of Civil Procedure, 1908. That apart, at the time of disposing of the matter the High Court did
not even notice the question of law formulated by it at the time of admission of the second appeal as there is no
reference of it in the impugned judgment. Further, the fact findings courts after appreciating the evidence held that
the defendant entered into the possession of the premises as a batai, that is to say, as a tenant and his possession
was permissive and there was no pleading or proof as to when it became adverse and hostile. These findings recorded

(Page 11 of 24)
 by the two courts below were based on proper appreciation of evidence and the material on record and there was no
perversity, illegality or irregularity in those findings. If the defendant got the possession of suit land as a lessee or
under a batai agreement then from the permissive possession it is for him to establish by cogent and convincing
evidence to show hostile animus and possession adverse to the knowledge of the real owner. Mere possession for a
long time does not result in converting permissive possession into adverse possession; Thakur Kishan Singh v. Arvind
Kumar, MANU/SC/0015/1995 : (1994) 6 SCC 591. The position has been reiterated in Kanahaiyalal v. Anupkumar, JT
(2002) 10 SC 98; Premabai v. Jnaneshwar Ramakrishna Patange, 2003 AIR SCW 2922; Chadat Singh v. Bahadur Rama,
JT (2004) 6 SCC 296; Mathakala Krishnaiah v. V. Rajagopal, JT (2004) 9 SCC 205 and Madan Lal v. Bal Krishan,
MANU/SC/2520/2005 : AIR 2006 SC 645. In Madan Lal v. Bal Krishan, MANU/SC/2520/2005 : AIR 2006 SC 645: 2006
(1) ALT 51 (SC): 2006 (1) AWC 662 (SC): (SC Supp) 2006 (1) CHN 174: 2006 (1) CTC 675: 2006 (2) JCR 1 (SC): JT
2005 (10) SC 494: (2006) 2 MLJ 287 (SC): (2005) 13 SCC 555, it was observed that:

"In view of section 100 of the Code of Civil Procedure, 1908 the memorandum of appeal shall precisely state
substantial question or questions of law involved in the appeal as required under sub-section (3) of section
100. Where the High Court is satisfied that in any case any substantial question of law is involved it shall
formulate that question under sub-section (4) and the second appeal has to be heard on the question so
formulated as stated in sub-section (5) of section 100."

Where a point of law has not been pleaded or is found to be arising between the parties in the absence of any factual format,
a litigant should not be allowed to raise that question in second appeal. The mere appreciation of the facts the documentary
evidence or the meaning of entries on the contents of the documents cannot be held to be raising a substantial question of
law. Where the first Appellate Court is shown to have exercised its discretion in a judicial manner, it cannot be termed to be
an error either of law or of procedure requiring interference in second appeal; Mst. Sugani v. Rameshwar Das,
MANU/SC/8106/2006 : AIR 2006 SC 2172: 2006 (4) ALD 41 (SC): 2006 (3) AWC 2392 (SC): (SC Suppl) 2006 (4) CHN 26:
2006 (3) CTC 108: 2007 (1) JCR 218 (SC): (2006) 3 MLJ 131 (SC): (2006) 4 SCALE 491.

When Second Appeal does not Lie?

Following are the conditions wherein second appeal specifically does not lie after the amendments of 1976 and 2002 of the
Code of Civil Procedure:

(i) No second appeal shall lie except on the ground mentioned in section 100 [Section 101].

(ii) No second appeal shall lie from any decree when the subject-matter of the original suit is for recovery of money
not exceeding twenty-five thousand rupees.

(iii) It is note worthy that no second appeal lies from an order; it is lies only from a decree. Further, the decree
against which the second appeal has to be filed should itself be an appellate decree and such decree against which
the second appeal is to be filed must have been passed by a court inferior to the High Court before which the second
appeal is to be filed.

No Interference with Finding of Facts

Q. Whether High Court can interfere with the findings of facts in a second appeal?

In Kashibai v. Parwatibai, MANU/SC/0799/1995 : (1995) 6 SCC 213: 1995 (3) ALT 57 (SC): (1995) 97 Bom LR 80: 1995 (2)
CTC 476: II (1996) DMC 266 SC: JT 1995 (7) SC 48: (1996) 1 MLJ 45 (SC): 1996 MPLJ 1: (1995) 5 SCALE 615: (1995) Supp 4
SCR 63, it was observed by the Supreme Court that there is no jurisdiction to entertain a second appeal on the ground of
erroneous finding of facts based on appreciation of relevant evidence. Thus in second appeal, reappreciation of evidence is
not permitted unless the judgment is perverse or the judgment is based upon evidence admittedly illegal or the finding is
without evidence (a defect in legal procedure) or there has been a wrong construction of documents or misreading of
evidence.

Points of law can be allowed to be urgent and put forward in second appeal, even though such points were available on facts
before the Court below, but were not urged or put forward. Thus, new pleas can be taken in second appeal (Subodh Kumar

(Page 12 of 24)
Neogi v. Panchu Gopal Neogi, AIR 1985 (NOC) 120 Cal).

Substantial Question of Law

Q. What do you mean by expression 'substantial question of law'?

A second appeal lies only on a substantial question of law. After the amendment of 1976, second appeal is barred on the
ground of error of law or procedure. The Supreme Court has defined the meaning and scope of "substantial question of law" in
Chunnilal Mehta v. Century Spinning & Mfg. Co., MANU/SC/0056/1962 : AIR 1962 SC 1314: (1963) 65 Bom LR 267: (1962)
Supp 3 SCR 549, wherein the facts of the case were Chunnilal Mehta & Sons (Appellants) were managing agents of Century
Spinning Co. (Respondents) for a term of 21 years by an agreement at 15th June, 1933. However in April, 1951, the Board of
Directors of Respondent Co. terminated the agreement of June, 1933 and passed a resolution removing the Appellants as
Managing agents. The Appellant relying on relevant clauses of contract between them filed original suit in Bombay High Court
claiming 50 lakh as damages for wrongful termination of agreement. The Respondent Co. admitted the termination of appellant
employment wrongful but asked the learned Single Judge to assess the quantum of damages appellant was entitled. Clause 14
of mutual contract provided for compensation to be paid in case the agency of managing agents terminated before the expiry
of contract. It read:

"For the loss of such employment a sum equal to aggregate amount of monthly salary of not less than Rs. 600 which
Managing agents would have been entitled to receive from the company, for and during whole of the then unexpired
portion of said period of 21 years."

Q. Discuss the conditions when second appeal does not lie?

The learned trial Judge on interpretation of clause 14 awarded a sum of Rs. 234 lakh (for unexpired term along with interest).
Appellant aggrieved "filed the first appeal in the same High Court. The judgment of the High Court in appeal was in affirmance
of the judgment of the learned single Judge dismissing appellant's suit for damages and, therefore it was necessary for the
appellant to establish that "a substantial question of law" was involved to go in for second appeal. For second appeal the
appellant applied under article 133 (i.e., an appeal shall lie to Supreme Court if the High Court certifies that the appeal
involves the substantial question of law). However, the learned Judges missed the application without hearing. Thus this
appeal is by special leave petition under article 136 of the Constitution.

The specific contention raised by appellant was that view taken by High Court in disposing his appeal application under article
133 (i.e., as to substantial question of law) runs contrary to Privy Council judgment in Raghunath Prasad Singh v. Deputy
Commissioner Pratapgarh, MANU/PR/0012/1927 : AIR 1927 PC 110.

The Supreme Court observing that view of Bombay High Court was narrow while that of Nagpur High Court a little too wide,
but that of Madras

High Court was balanced and laid down the following principles to determine whether a question of law is "substantial question
of law":

(1) If the question is of general public importance, or its directly and substantially affects the rights of the parties. A
substantial question of law is a substantial question of law as between the parties in the case involved, and does not
mean a question of general importance.

(2) Whether it is either open question in the sense that it is not finally settled by this court or by Privy Council or by
Federal Court of is not free from difficulty (a doubt about principle of law is involved) or calls for discussion of
alternative views: then it is a substantial question of law.

(3) If the question is settled by the highest court or the general principles to be applied are well-settled and there is a
mere question of applying those principles or that the plea raised is palpably absurd, the question would not be
substantial question of law.

The assessment of damages by High Court being well within the clauses of mutual agreement were upheld by Supreme Court.
Affirming the decree of the High Court, the appeal with cost was dismissed but with an observation:

(Page 13 of 24)
 "The construction of agreement is not only one of law but also it is neither simple nor free from doubt. Moreover, a
claim of several lakh was involved .... depending upon the success or failure of conception of the parties Thus, it is a
Substantial question of law".

Recently three judges bench of Supreme Court in Santosh Hazari v. Purshottarn Tiwari, AIR 2001 SC 965: (2001) 251 ITR 84
(SC): JT 2001 (2) SC 407: (2001) 2 MLJ 69 (SC): 2001 (3) MPHT 71: (2001) 1 SCALE 712: MANU/SC/0091/2001 : (2001) 3
SCC 179: (2001) 1 SCR 948 observed that:

"Section 100 of the Code of Civil Procedure, 1908 as amended in 1976 restricts the jurisdiction of High Court to hear
the second appeal only on "substantial question of law involved in the case". An obligation is cast upon the appellant
to precisely state in Memorandum of Appeal the substantial question of law involved in appeal for which appellant
process to urge before High Court. High Court must be satisfied that a substantial question of law is involved in the
case and such question has to be formulated by High Court. At the hearing of the appeal, the scope of hearing is
circumscribed by the question so formulated by High Court. Respondent is at the liberty to show that question
formulated by High Court is not involved in the case. However, High Court's power to hear the appeal on any other
substantial question of law not earlier formulated by it, is not taken away subject to twin conditions being satisfied:

(a) the High Court feels that the case involves such question, and

(b) High Court records reasons for such satisfaction."

Power of High Court to Determine Issues of Fact

According to section 103 of the Code of Civil Procedure, 1908,

In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the
disposal of the appeal,--

(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower
Appellate Court, or

(b) which has been wrongly determined by such court or courts by reason of a decision on such question of law as is
referred to in section 100.

Order from which Appeal Lies

Section 104 of the Code of Civil Procedure, 1908 provides that,

(1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or
by any law for the time being in force, from no other orders:

1[***]

(ff) an order under section 35A;

(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in
section 91 or section 92, as the case may be;

(g) an order under section 95;

(h) an order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the
civil prison of any person except where such arrest or detention is in execution of a decree; (i) any order made
under rules from which an appeal is expressly allowed by rules:

Provided that no appeal shall lie against any order specified in clause (ff) save on the ground that no
order, or an order for the payment of a less amount, ought to have been made.

(2) No appeal shall lie from any order passed in appeal under this section.

(Page 14 of 24)
Kondiba Dagadu Kandam case

In Kondiba Dagadu Kadam v. Savitri Bai, JT (1999) 3 SC 163: AIR 1999 SC 2213: 1999 (2) CTC 468: (1999) II MLJ 105 (SC):
RLW 2000 (1) SC 89: (1999) 2 SCALE 633: MANU/SC/0278/1999 : (1999) 3 SCC 722: (1999) 2 SCR 728: 1999 (2) UJ 820
(SC), the facts of the case were, the appellants filed a suit for specific performance against the respondent with regard to an
agreement to sale dated 12th May, 1972 which was dismissed by Trial Court by it's order dated 25th June, 1985. The lower
Appellate Court allowed the appeal and granted the relief of specific performance in favour of plaintiff.

____________

1. Clauses (a) to (f) om itted by Act 10 of 1940, sec. 49 and Sch. III.

The Appellate Court found that the deceased 'Sopan' executed a document Exhibit page 68 in front of plaintiff witness Babu,
who confirmed the thumb-impression of deceased on Exhibit page 68 were made in his presence. The findings of Appellate
Court are based on appreciation of evidence and being the finding of the last court on facts were binding upon the parties.

The fact that learned single judge of the High Court has only appreciated the evidence is evident from findings "the lower
Appellate Court has only relieved upon the evidence of two attesting witnesses viz. Sopan Shankar Nadha and Ramu Laxman
Shinde (police patil)". Ramu Laxman Shinde had stated that he was present at the time of execution of agreement of
repurchase dated 12th May, 1972. However, in the plaint there is no reference whatsoever with regard to Ramu Laxman,
being present at the time of execution of said repurchase agreement dated 12th May, 1972. In view thereof, the evidence of
Ramu Laxman Shinde cannot be accepted. Sopan Shankar Nadhe is also not reliable as he make's contradictory statement
about Sopan's thumb-impression. The Apex Court held that the order of learned single Judge, impugned in the appeal being
against the settled norms and contrary is the mandate to section 100 of the Code of Civil Procedure, 1908, therefore cannot
be sustained. The appeal is allowed by setting aside the impugned judgment of the High Court and restoring the judgment of
the first appellate court with costs throughout.

Observations and decision of the Supreme Court.--

The Apex Court made following observations with regards to section 100 of the Code of Civil Procedure, 1908.

After the Amendment Act, 1976 to the Code of Civil Procedure, 1908, a second appeal can be filed only if a substantial
question of law is involved in the case. The memorandum of appeal must precisely state the substantial question of law
involved and the High Court is obliged to satisfy itself regarding the existence of such question. The High Court has to
formulate the substantial question of law involved in the case. The respondent at the time of hearing of the appeal has a
right to argue that the case in the Court did not involve substantial question of law. The proviso to the section,
acknowledges the power of the High Court to hear the appeal on substantial point of law, though not formulated by it with
the object of ensuring that no injustice is done to the litigant where such question was not formulated at the time of
admission either by mistake or by inadvertence.

It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at by the last
Court of fact, being the first Appellate Court. The lower Appellate Court should not reject witnesses accepted by the Trial
Court in respect of credibility but even where it has rejected the witnesses accepted by the Trial Court, the same is no
ground for interference in second appeal when it is found that the Appellate Court has been given satisfactory reasons for
doing so. In case where from a given set of circumstances two inferences are possible one drawn by lower Appellate Court is
binding on the High Court in second appeal. The High Court cannot substitute its opinion for the opinion of the first Appellate
Court unless it is found that conclusion drawn by lower Appellate Court were erroneous being contrary to the mandatory
provisions of law applicable or its settled position on the basis of pronouncement made by the Apex Court, or was based upon
inadmissible evidence or arrived at without evidence.

Powers of Appellate Court

Q. Discuss the powers of an Appellate Court.

Section 107 of the Code of Civil Procedure, 1908 provides for the powers of the Appellate Court in the following manner:

(Page 15 of 24)
 "(1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power--

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the
same duties as are conferred and imposed by the Code on courts of original jurisdiction in respect of suits instituted
therein.

In Sarju Pershad v. Raja Jwaleshwari, MANU/SC/0002/1950 : AIR 1951 SC 120: (1950) 1 SCR 781, the Supreme Court
observed that, the provisions of section 107 are clearly not involved to allow a litigant who has been unsuccessful in the
lower Court to patch up the weak parts of his case and fill up omission in the Court of appeal.

The Appellate Court has to bear in mind that it does not have the advantage which the Trial Court had in having the
witnesses before him and of observing the manner in which they deposed in court. This certainly does not mean that when an
appeal lies on facts, the Appellate Court is not competent to reverse a finding of fact arrived at by the trial judge. The rule is
and it is nothing more than the rule of practice--that when there is conflict of oral evidence of the parties on any matter in
issue and the decision hinges upon the credibility of the witnesses, the general rule is that the Appellate Court should permit
the finding of fact rendered by the Trial Court to prevail unless it clearly appears that some special feature about the
evidence of a particular witness has escaped the notice of the Trial Court or there is sufficient balance of improbably to
displace its opinion as to where the erasability lies.

When Appeal Lies to the Supreme Court

Section 109 of the Code of Civil Procedure, 1908 provides for the conditions when appeal lies to the Supreme Court in the
following words:

"Subject to the provisions in Chapter IV of Part V of the Constitution and such rules as may, from time to time, be
made by the Supreme Court regarding appeals from the Courts of India, and to the provisions hereinafter contained, an
appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if
the High Court certifies--

(i) that the case involves a substantial question of law of general importance; and

(ii) that in the opinion of the High Court the said question needs to be decided by the Supreme Court."

It was observed in Shiv Shakti Coop. Housing Society v. Swaraj Developers, MANU/SC/0335/2003 : (2003) 6 SCC 659: AIR
2003 SC 2434: 2003 (4) ALD 1 (SC): 2003 (4) ALT 27 (SC): 2003 (3) AWC 198 (SC): 2003 (2) BLJR 1324: 2003 (2) CTC 564:
(2004) 1 GLR 38: 2003 (4) JCR 22: (2003) 3 SCR 762: 2003 (2) UJ 1102 (SC) that "appeal", is defined in the Oxford
Dictionary, Vol. 1, p. 398, as the transference of a case from an inferior to a higher court or tribunal in the hope of reversing
or modifying the decision of the former. In the Law Dictionary by Sweet, the term "appeal" is defined as a proceeding taken to
rectify an erroneous decision of the Court by submitting the question to a higher court or court of appeal, and it is added that
the term, therefore, includes, in addition to the proceedings specifically so called, the cases stated for the opinion of the
Queen's Bench Division and the Court of Crown Cases reserved, and proceedings in error. In the Law Dictionary by Bouvier an
appeal is defined as the removal of a case from a court of inferior to one of superior jurisdiction for the purpose of obtaining a
review and retrial, and it is explained that in its technical sense it differs from a writ of error in this, that it subjects both the
law and the facts to a review and retrial, while the latter is a common law process which involves matter of law only for re-
examination; it is added, however that the term "appeal" is used in a comprehensive sense so as to include both what is
described technically as an appeal and also the common law writ of error. Sub-section (2) of section 115 has remained
unaltered even after the amendment by the Amendment Act. A new sub-section (3) has been added in section 115 by the
Amendment Act which states that revision shall not operate as a stay of suit or other proceeding before the Court except

(Page 16 of 24)
where such suit or other proceeding is stayed by the High Court.

In section 2, the expression "decree" and "order" have been defined in clauses (2) and (14) respectively. It is to be noted
that it matters little that the judgment is styled as an "order". If, in fact, it fulfils the conditions of the definition under
section 2(2), it is a decree and becomes appealable. Orders that are not appealable are, generally speaking, those which are
procussual, i.e., interlocutory or incidental orders regulating proceedings but not deciding any of the matters of controversy in
the suit. Order XLIII deals with "appeals from orders." These appeals lie under section 104 of the Code of Civil Procedure,
1908. The said section deals with appeals from the specific orders from which appeals can lie. Sub-section (2) of section 104
says that no appeal shall lie from an order passed in appeal under the said section. Section 104 and Order XLIII, rule 1
contain a full list of appealable orders. An Order which amounts to a decree within section 2(2) does not fall within section
104 and the only applicable section is section 96. Clauses (a) to (f) of section 104 were omitted by the Arbitration Act, 1940,
section 105 relates to other orders. It, inter alia, relates to any order, i.e. to appealable as well as non-appealable orders. It
is in the nature of a prohibited stipulating that save as otherwise expressly provided, no appeal shall lie from any order made
by a court in exercise of original or appellate jurisdiction; but where a decree is appealed from, any error, defect or irregularity
in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.
Subsection (2) deals with case of remand. This section, in fact, contemplates two things, i.e., (1) regular appeal from
decree; and (2) the provision relating to grant of objection relating to interim, order. Order XLIII, rule 1 is an integral part of
section 104.

A plain reading of section 115 as it stands makes it clear that the stress is on the question whether the order in favour of the
party applying for revision would have given finality to suit or other proceeding. If the answer is "yes" then the revision is not
maintainable. Therefore, if the impugned order is interim in nature or does not finally decides the lis, the revision will not be
maintainable. The legislative intent is crystal clear. Those orders, which are interim of revision under section 115. There is
marked distinction in the language of section 97(3) of the old Amendment Act and section 32(2)(i) of the new Amendment
Act. While in the former, there was a clear legislative intent to save applications admitted or pending before the amendments
came into force. Such an intent is significantly absent in section 32(2)(i). The amendment relates to procedures. No person
has a vested right in a course of procedure. He has only the right of proceeding in the manner prescribed. If by a statutory
change the mode of procedure is altered, the parties are to proceed according to the altered mode, without exception, unless
there is a different stipulation.

REVISION

Q. What do you mean by word 'Revision'?

Generally speaking, 'Revision' means "the action of revising, especially critical or careful examination or perusal with a view to
correcting or improving." According to section 115 of the Code of Civil Procedure, 1908:

(1) The High Court may call for the record of any case which has been decided by any court subordinate to such High
Court and in which no appeal lies thereto, and if such subordinate court appears--

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may
make such order in the case as it thinks fit:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order
deciding an issue, in the course of a suit or other proceeding, except where the order, if it had been
made in favour of the party applying for revision, would have finally disposed of the suit or other
proceedings.

Discuss the essential ingredients of 'revision'.

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies
either to the High Court or to any Court subordinate thereto.

(Page 17 of 24)
 (3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other
proceeding is stayed by the High Court.

Explanation.--

In this section, the expression "any case which has been decided" includes any order made, or any order deciding an issue, in
the course of a suit or other proceeding.

Therefore, under the Code, the jurisdiction exercised by the High Courts under this section is called 'revisional jurisdiction'.
However, the powers of the High Courts under this section could only be invoked in cases in which no appeal lies to the High
Court and the case was decided by any court subordinate to such High Court and such subordinate court appeared:

(i) to have exercised a jurisdiction not vested in it by law; or

(ii) to have failed to exercise a jurisdiction so vested; or

(iii) to have acted in the exercise of its jurisdiction illegally on with material irregularity.

However, under section 115 of the Code of Civil Procedure, 1908, the High Court cannot:

(i) vary or reverse any order except where the order, if it has been made in favour of the party applying for revision
would have finally disposed off the suit or proceedings.

(ii) vary or reverse any decree or order against which an appeal lies either to the High Court or to any sub-ordinate
court.

It should be noted that, a 'revision', docs not, operate as a stay of suit or other proceedings before the Court, unless such
suit or proceeding is, in fact, stayed by the High Court. Further, in the exercise of its revisional power, it is not the province
of the High Court to enter into the merits of the evidence.

In Ram Kumar v. State of Rajasthan, MANU/SC/4259/2008 : AIR 2009 SC 4, it is held that the suit itself was dismissed on
merits after the issue as to the maintainability of the suit for non-service of notice upon the respondent was decided in
favour of the appellants. It is now pending in appeal before the Appellate Court. Therefore, by any stretch of imagination, it
cannot be said that at the time the revision was decided, it was open to High Court to deal with the issue passed by the Trial
Court when the suit itself was dismissed on merits. The revision became infractus in view of the disposal of the suit on
merits.

Essential Requirements for 'Revision'

Q. Discuss the essential ingredients of 'revision'.

Any High Court within the territorial limits of India may exercise its revisional powers under section 115 of the Code of Civil
Procedure, 1908 if following conditions are satisfied:

(i) there must be a case decided by a court;

(ii) the Court deciding the case must be one subordinate to the High Court;

(iii) the decision must be one in which no appeal lies to the High Court; and

(iv) the subordinate Court in deciding the case must appear to have:

(a) exercised a jurisdiction not vested in it by law; or

(b) failed to exercise a jurisdiction vested in it by law; or

(c) acted in the exercise of its jurisdiction illegally or with material irregularity; Michael Mascarenhas, Major v.
Johu Mascarenhas, MANU/KA/0070/1996 : AIR 1996 Kant 348: ILR 1996 Kant 1957: 1996 (3) Kant LJ 114.

(Page 18 of 24)
Exercise of Revisional Jurisdiction is Discretionary

The use of word "may" in section 115 of the Code of Civil Procedure, 1908 indicates that the exercise of the revisional powers
of the High Court is entirely discretionary. The High Court does not usually interfere if the aim of an irregularity of the lower
Court has been to promote justice; Sham Mohan Lai v. Jai Gopal, AIR 1968 Del 104. Likewise, the High Court may decline to
exercise its revisional jurisdiction if the matter is sub-judice in the appeal filed by another party to the same suit. Before
interfering in the 'Revision' the Court always takes into consideration the conduct of the petitioner; Dominion of India v.
Gobordhan Das, AIR 1952 Cal 28, if he does not disclose his entire case the Court shall not exercise its revisional jurisdiction;
J.N. Basu v. Tarakchandra Raychowdhury, MANU/WB/0010/1946 : AIR 1947 Cal 28. Where the power of revision has been
invoked and dealt with, the High Court ought not to interfere with the order in question in a subsequent writ petition; Shankar
R. Abhyankar v. Krishnaji, MANU/SC/0456/1969 : AIR 1970 SC 1: (1970) 72 Bom LR 179: (1969) 2 SCC 74: (1970) 1 SCR 322.

'Case' and 'Suit': Distinction

Q. Differentiate the words 'case' and 'suit'?

The meaning of expression 'case' being of a comprehensive import, it includes civil proceedings other than suits and it is not
restricted to the entirety of the proceedings in a civil suit. To interpret 'case' as in entire proceedings, and not a part of
proceedings, would be to restrict the supervisory jurisdiction of the High Court resulting in gross injustice to an aggrieved
litigant. In view of that, 'case' includes a part of the case, there is no escape from the conclusion that a revisional jurisdiction
may be exercised in respect of the question whether an appeal lies from the ultimate order or decree passed in the suit.1
Therefore, the word 'case' is more comprehensive than the word 'suit'; Patna Municipal Corporation v. Brij Raj Krishna,
MANU/BH/0011/1958 : AIR 1958 Pat 22.

Jurisdictional Error

Section 115 of the Code of Civil Procedure, 1908 is clearly limited to keep subordinate courts within the bounds of their
jurisdiction. This section concerns jurisdiction alone involving:

(i) exercise by court of jurisdiction not vested in it by law; or (ii) failure to exercise jurisdiction; or

(iii) a court in exercise of its jurisdiction has acted illegally or with material irregularity-.

______________
1. Mulla on Code of Civil Procedure, 16th Edn., Vol. 1, p. 1206.

The word 'jurisdiction' originally seems to mean the entitlement 'to enter upon the enquiry in question'. In MX. Sethi v. R.P.
Kapur, MANU/SC/0245/1972 : AIR 1972 SC 2379: (1972) 2 SCC 427: (1973) 1 SCR 697 it was held by the Supreme Court,
through Mathew, ]. that, "it is a verbal case of many colours." A court may have jurisdiction to entertain a suit or appeal, and
yet it may have no jurisdiction to pass a particular order in the suit or an appeal. Section 115 is not attracted against a
conclusion of law or of a fact, in which question of jurisdiction is not involved. However, where the question of court-fee
simpliciter, in case of a combined question of court-fee and jurisdiction, the defendant can request the High Court to interfere
in a revision with the impugned order of the lower court; A.P. State Electricity Board v. K. Venkateswara Rao,
MANU/AP/0087/1981 : AIR 1981 AP 197.

(i) Exercise by court of jurisdiction not vested in it by law.--

Where a Civil Court exercised jurisdiction not vested in him by a statue and violated the procedure laid down by the
statute and thus, committing an illegality in exercise of its jurisdiction, the High Court must rectify the error by the
exercise of its revisional jurisdiction; Chandrika Singh v. Raja V.P. Singh, MANU/SC/0241/1992 : (1992) 3 SCC 90: AIR
1992 SC 1318: JT 1992 (3) SC 55: (1992) 1 SCALE 883: (1992) 2 SCR 640. Following cases reflect unauthorized
jurisdiction by subordinate court:

(a) assumes jurisdiction beyond its pecuniary or territorial limit or by reason of subject-matter of suit; or

(b) entertains an appeal from an order which is not appealable; or

(Page 19 of 24)
 (c) entertains a suit or appeal which it has no jurisdiction to entertain; or

(d) making ultra-vires order; or

(e) grant an injunction without considering whether a prima facie case is made; or

(f) allows withdrawal of suit on a ground not contemplated under Order XXIII, rule 1; or

(g) directs a subordinate court to try a suit not triable by it.

There is distinction between cases in which on a wrong decision the Court has assumed jurisdiction which is not
vested in it and those in which in exercise of its jurisdiction the Court has arrived at a conclusion erroneous in law or in
fact. In the former class of cases. Revisional power is permissible, while in latter class of cases it is not. Thus, if by an
erroneous decision on a question of fact or law touching its jurisdiction, the subordinate court assumes a jurisdiction
not vested in it by law or fails to exercise a jurisdiction so vested, its decision is not final and is subject to the
revisional jurisdiction of the High Court under section 115 [M.L. Sethi v. R.P. Kapoor, (1973) 11 SCJ 543].

(ii) Failure to exercise its jurisdiction.--

Where a court having jurisdiction to decide a matter, thinks erroneously under misapprehension of law or fact that it
has no jurisdiction and declines to exercise it, the High Court can interfere in revision.

(iii) Exercise of jurisdiction illegally or with material irregularity.--

The expression "illegality" and "material irregularity" cannot be precisely defined but the substance can be culled from
the observations of the Supreme Court in D.L.F. case.

In D.L.F. Housing & Construction Co. Ltd. v. Sarup Singh, MANU/SC/0491/1969 : AIR 1971 SC 2324: (1969) 3 SCC 807:
(1970) 2 SCR 368, the Supreme Court observed that:

"While exercising the jurisdiction under section 115, it is not competent to the High Court to correct error of fact
however gross or even errors of law unless the said errors have relation to the jurisdiction of the Court to try the
dispute itself... The words "illegally" and "with material irregularity" do not cover either errors of fact or of law, they do
not refer to the decisions arrived at but merely to the manner in which it is reached. The errors contemplated by this
clause may, in our view, relate either to the breach of some provision of law or to material defects of some provision
of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law;
after the prescribed formalities have been complied with.

Five instances of material irregularity are:

(1) court decides the case without considering evidence on record;

(2) evidence not legally taken or otherwise inadmissible;

(3) fails to follow a decision of the High Court to which it is subordinate;

(4) follow a decision inapplicable to the facts of the case;

(5) framing issues wrongly places burden of proof, etc.

Section 115 bestows revisional power on the High Court with a view to subserve and not to defeat the ends of justice. Where
substantial justice has been done by the orders of the lower court, the High Court will not interfere with it, in the "Revision" in
spite of the fact that the reasons or the order are not correct or the order is improper or irregular. If order reflect grave
injustice or hardship or substantial failure of justice, the High Court will interfere. High Court will not exercise revisional
jurisdiction in case the aggrieved party has alternative remedy, available against the order passed by lower court, or who
suppresses material fact from the Court. Another exception was introduced by the Code of Civil Procedure (Amendment) Act,
1999, by adding provision its sub-section (1) of section 115 stating that High Court shall not vary or reverse any order passed
in course of a suit or other proceedings except where the order, if it had been made in favour of the applicant, it would have

(Page 20 of 24)
finally disposed of the suit or other proceedings.

Sub-section (2) as inserted by the Amendment Act of 1999 clarifies that mere filing of revision in the High Court would not
operate as stay of suit or other proceeding are pending unless such stay is granted by the High Court.

The High Court will exercise revisional powers on the application of aggrieved party, but in appropriate cases where the
conditions laid down in this section are satisfied, it may suo motu call for any record and pass necessary orders. The Supreme
Court in Swastik Oil Mills v. H.B. Munshi, MANU/SC/0317/1967 : AIR 1968 SC 843: (1968) 2 SCR 492: (1968) 21 STC 383 (SO
held, the proceeding for revision, if started suo motu, must not, of course, be based on a mere conjecture and there should
be some ground for invoking the revisional powers. Once those powers are invoked, the actual interference must be based on
sufficient grounds, and, if it is considered necessary that some additional enquiry should be made to arrive at a proper and
just decision, there can be no bar to the revising authority holding the further enquiry or directing such an enquiry to be held
by some appropriate authority.

REVIEW (SECTION 114 and ORDER XLVII)

Q. What does the word 'Review' mean?

'Review' means "to look once again". The main object of granting a review of judgment is reconsideration of the same matter
by same judge under certain conditions. The provisions relating to review, thus, strikes down the general rule:

"Once the judgment is signed and pronounced by the Court it become 'functus officio" and has no jurisdiction to alter
it."

Section 114 of the Code of Civil Procedure, 1908 lays down very general provisions for review of cases which is further
elaborated and conditioned by provisions of Order XLVII of the Code.

Section 114 reads:

Subject as aforesaid, any person considering himself aggrieved,--

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal has been
preferred,

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court
which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

According to rule 1 of Order XLVII:

(1) Any person considering himself aggrieved--

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on a reference from a Court of Small Causes, and who, from the discovery of new and
important matter or evidence which, after the exercise of due diligence was not within his knowledge or could
not be produced by him at the time when the decree was passed or order made, or on account of some
mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a
review of the decree passed or order made against him; may apply for a review of judgment to the Court which
passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the
pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and
the appellant, or when, being respondent, he can present to the Appellate Court the case on which he applies for the
review.

(Page 21 of 24)
 Explanation.-- The fact that the decision on a question of law on which the judgment of the Court is based has
been reversed or modified by the subsequent decision of a superior court in any other case, shall not be a
ground for the review of such judgment.

Conditions Precedent to Allow Review Application

Q. What are the essential conditions to allow review application?

In every fit case, the Court allowing the review application should keep two points in mind:

(i) Notice should be given to the opposite party to enable him to appear and be heard in the matter; and

(ii) if the application is made on the ground of discovery of new matter/ evidence, which the applicant alleges, was
not within his knowledge, or could not be adduced by him, when the decree was passed, or the order was made, the
review application is not to be granted without strict proof of such allegation.

It should be noted that, lack of sufficient ground for review, the application is liable to be rejected by the Court. Subsequent
event may be taken into consideration by the Court, while exercising review jurisdiction; BCCI v. Netaji Cricket Club,
MANU/SC/0019/2005 : AIR 2005 SC 592: 2005 (2) AWC 1965 (SC): JT 2005 (1) SC 235: MANU/SC/0019/2005 : (2005) 4 SCC
741: 2005 (1) UJ 334 (SC).

The Kerala High Court in Pathrose v. Kuttan, AIR 1991 Ker 186, it has been held that error apparent on the face of record is
not limited to the errors of fact only and it extends to errors of law as well. The Court further said that it matters not
whether the error of law was apparent in the light of decision of the superior court which was existing at the time of the
making of the decision or it was pronounced even after the decision in the case in question was made. In other words court
said:

"Where a decision has been taken by a court and subsequent to that a pronouncement is made on the same point of
law involved in the case in question, the same would be a good ground for the review of the judgment of the Court."

Thus the following two grounds are good enough for the judicial review:

(1) If another binding decision interpreting the law differently was given before or after the judgment in the given case
and the petitioner had no opportunity to bring it to the notice of the Court.

(2) If the legislature amends the existing law, the same can also be a good ground for judicial review. However, the
principle is applicable where the statue is amended retrospective and not otherwise.

Surinder Singh case

In Surinder Singh Arora v. Major Sohan Singh Arora, AIR 1986 Del 293: 28 (1985) DLT 28, the facts of this case are that
Major Sohan Singh Arora (Respondent) filed on application in Delhi High Court to review its earlier order, on the ground that
said order was passed without noticing the provisions of section 21 (2) of the Code of Civil Procedure, 1908. The earlier order
by the High Court set aside, the order of remand by Additional District Judge and directed that the suit be retired and
disposed by an Additional District Judge. The subsequent proceedings to remand order were also quashed on ground of being
made without jurisdiction.

The contented provisions of section 21(2) were not brought to the notice of High Court when the earlier order was made and
the Court quashed the proceeding on the basis of general principles of law with regard to the legality of the proceedings of
court not competent to try the suit for want of requisite pecuniary jurisdiction. The High Court accepting the contention of
the counsel of Respondent that in view of specific provision of section 21(2), an objection to the pecuniary jurisdiction of a
court must be raised at the earliest stage of the proceeding in a suit and that it must be further shown that some prejudice
has resulted to the aggrieved party before the proceedings of the Court having requisite pecuniary jurisdiction can be set
aside. In the instant case it was only in the revision petition which was filed by petitioner in the High Court that he raised the
objection regarding the pecuniary units of the Courts of subordinate judge for the first time.

If the said provisions of section 21(2) would have been brought to the notice of the High Court the proceedings before the

(Page 22 of 24)
subordinate judge after the remand order of Additional District Judge would not have been quashed especially when the trial
of suit was in progress and there could be no question of failure of justice consequent upon the same.

As to maintainability of the review petition. It was urged that the inherent fact that order under review is wrong on a point of
law will not, according to well-established principles furnish a ground for review by this court, more so when no new and
important matter of evidence has been discovered.

Decision: The High Court on this contention held that:

The erroneous decision on a point of law in the sense that the Court has taken a view on a point of law which is
erroneous is quite different from case where specific provision of law having bearing on the controversy between the
parties has not been considered at all. May be because it was not within the knowledge of the counsel for the parties
or for that matter the Court itself Hence, if it is brought to the notice of the Court that there was a specific provision
of law interdicting an appellate or revisional court to entertain the plea, the Court would be failing in its duty if it
refuse to rectify the error on pure technical grounds.

When the Court disposes of a case without adverting to or applying its mind to a provision of law which gives it jurisdiction to
act in a particular way that may amount to an error analogous to be apparent on the face of the record sufficient to bring
the case within purview of Order XLVII, rule 1 of the Code of Civil Procedure, 1908.

In Union of India v. B. Valluban, MANU/SC/8573/2006 : AIR 2007 SC 210, it is held that the High Court's jurisdiction to review
its own judgment is limited. The High Court, indisputably, has a power of review, but it must be exercised within the
framework of section 114 read with Order XLVII of the Code of Civil Procedure. The High Court did not arrive at a finding that
there existed an error on the face of the record. In fact, the High Court, despite noticing the argument advanced on behalf of
Union of India that the Respondent had no legal right to be appointed, proceeded to opine that the panel prepared for filling
up of future vacancies should be given effect to. The review of the High Court was not only contrary to the circular letter
issued by Union of India, but also contrary to the general principles of law.

'Appeal' and 'Revision': Distinction

Q. Differentiate between 'appeal' and 'revision'.

There are following main distinctions between Revision and Appeal:

(a) An appeal lies to Superior Court from every original decree unless expressly barred, while a revision lies only in the
cases mentioned in section 115 of the Code of Civil Procedure, 1908, and to the High Courts only.

(b) The revisional jurisdiction can also be exercised suo motu, while appellate jurisdiction cannot be exercised suo
motu.

(c) The exercise of revisional power is entirely discretionary and ordinary. High Court does take a technical view so as
interfere in every case while right of the appeal is a substantive right given by statute, and every appeal is to be
decided according to law.

(d) The High Court or revisional court cannot, in exercise of its revisional powers, set aside the findings of facts of
subordinate courts but a court of appeal can do so.

(e) An appeal abates if the legal representative of the deceased are not brought on record within the time allowed by
law while a revision may not abate and the High Court has a right to bring the proper parties before the Court at any
time.

(f) Order XLI, rule 31 of the Code provides for a procedure for deciding the appeal. The law requires substantial
compliance of the said provisions. The first appeal is a valuable right and the parties have a right to be heard both on
question of law and on facts. Parimal v. Veena, MANU/SC/0105/2011 : AIR 2011 SC 1150.

'Revision' and 'Review': Distinction

(Page 23 of 24)
Q. Point out the difference between 'Revision' and 'Review'.

There are following distinctions between Revision and Review:

(a) The power of revision is exercised by the High Court and in some cases by the district court, i.e., the Superior
Court, while the power of review is exercised by the Court which passed the decree or order.

(b) The power of revision is conferred on the High Court only and in some cases in some states, on the district court
also, but review can be made by any court which passed the judgment or order.

(c) Revisional powers can be exercised only in cases in which no appeal lies, but review can be made even when
appeal lies to the Supreme Court.

(d) The grounds on which the powers of revision and review can be exercised and different. The ground for revision
relates to jurisdiction, i.e., want of jurisdiction, failure to exercise jurisdiction vested in the Court, or illegal or irregular
exercise of the jurisdiction, while the grounds for review are discovery of new and important matter of evidence, some
apparent mistake or error on the face of the record or any other sufficient reason.

(e) No appeal lies from an order passed in the exercise of revisional jurisdiction while the order following the review
application is appealable.

(f) Under Order XLVII, rule 1, in case of grounds of review the expression "any other sufficient reason" has to be read
in light of other specified grounds. State of West Bengal v. Kamal Sengupta, AIR 2009 SC (Supp) 476.

© Universal law Publishing Co.

(Page 24 of 24)
 TABLE OF CASES

A. Vishwanath Pillai v. Special Tahsildar for Land Acquisition No. IV, MANU/SC/0436/1991 74
: AIR 1991 SC 1966: JT 1991 (3) SC 575: 1991 (2) KLT 444 (SC): 1992(1) MLJ 1 (SC):
(1991) 2 SCALE 286: MANU/SC/0436/1991 : (1991) 4 SCC 17: (1991) 3 SCR 465: 1991
(2) UJ 470 (SC)

A.P. State Electricity Board v. K. Venkateswara Rao, MANU/AP/0087/1981 : AIR 1981 AP 126
197

Alka Gupta v. Narender Kumar Gupta, MANU/SC/0793/2010 : AIR 2011 SC 9 46

Amina Beevi v. Thachi, MANU/SC/0908/2010 : AIR 2011 SC 244 26

Amulakchand Mewaram v. Babulal Kanalal, (1933) 35 Bom LR 569 59

Andhra Bank Ltd. v. Srinivasan, MANU/SC/0022/1961 : AIR 1962 SC 232: (1962) 3 SCR 20
391

Aswani Kumar Singh v. U.P. Public Service Commission, MANU/SC/0461/2003 : AIR 2003 10
SC 2661

B. Jankiramiliah Chetty v. A.K. Parthasarthi, (2003) 3 SCALE 660: MANU/SC/0281/2003 : 67

AIR 2003 SC 3527:
2003 (3) ALD 79 (SC): 2003 (5) ALT 14 (SC): 2003 (4) AWC 3296 (SC): JT 2003 (3) SC
580:
2003 (2) KLT 384 (SC); (2003) 2 MLJ 186 (SC): (2003) 134 PLR 331:
MANU/SC/0281/2003 : (2003) 5 SCC 641: (2003) 3 SCR 69

B.P. Rao v. State of Andhra Pradesh, 1985 Supp (1) SCC 432: MANU/SC/0330/1985 : 73
AIR 1986 SC 210:1985 (51) FLR 501:1985 Lab IC 1555: (1985) 2 SCALE 256: (1985)
Supp 2 SCR 573
Babulal Khandelwal v. Balkishan D. Sanghvi, AIR 2009 SC 67 74

Bai Umiyahen v. Ambalal Laxmidas, MANU/GJ/0043/1966 : AIR 1966 Guj 139: (1965) GLR 4
714

Balraj Taneja v. Sunil Madan, MANU/SC/0551/1999 : AIR 1999 SC 3381: JT 1996 (6) SC 9
473: (1993) 5 SCALE 400:
MANU/SC/0551/1999 : (1999) 8 SCC 396: (1999) Supp 2 SCR 258

Banta Singh v. Union of India, AIR 1988 P&H 308 29

BCCI v. Netaji Cricket Club, MANU/SC/0019/2005 : AIR 2005 SC 592: 2005 (2) AWC 1965 129
(SC): JT 2005 (1) SC 235: MANU/SC/0019/2005 : (2005) 4 SCC 741: 2005 (1) UJ 334
(SC)
Bharat Nidhi Ltd. v. Megh Raj Mahajan, 3 (1967) DLT 140: AIR 1964 Del 22 14

Bhola Prasad v. Jagpata, 1954 ALJ 696 47

Bhupendra Singh Babera v. Municipal Council, MANU/CG/0051/2001 : AIR 2002 Chh 7 72

Bihari Choudhary v. State of Bihar, MANU/SC/0004/1984 : AIR 1984 SC 1043: 1984 (32) 81
BLJR 219: (1984) 1 SCALE 536: MANU/SC/0004/1984 : (1984) 2 SCC 627: (1984) 3 SCR
309: 1984 (16) UJ 619 (SC)

Bikoba Deora Gaikward v. Hirabai Marutirao Ghoragare, MANU/SC/2540/2008 : (2008) 8 1

(Page 1 of 12)
SCC 198

Billa's Private Ltd. v. W.B. Khadi and Village Industries Board, AIR 1997 Cal 333 58

Bisheswar Dayal v. Bajarang Bahadur Singh, AIR 1929 Oudh 353 19

Brijendra Prasad Narain Singh v. State of Bihar, MANU/BH/0124/1963 : AIR 1963 Pat 449 103

Buta Singh v. Union of India, MANU/SC/0378/1995 : AIR 1995 SC 1945: (1995) 5 SCC 29
284: (1995) 3 SCR 359

Chadat Singh v. Bahadur Rama, JT (2004) 6 SCC 296 115

Chandrabhai K. Bhoin v. Krishna Arjun Bhoin, AIR 2009 SC 1675 51

Chandrika Singh v. Raja V.P. Singh, MANU/SC/0241/1992 : (1992) 3 SCC 90: AIR 1992 126
SC 1318:
JT 1992 (3) SC 55: (1992) 1 SCALE 883: (1992) 2 SCR 640

Charan Das v. Amir Chand, MANU/PR/0043/1920 : AIR 1921 PC 50 58,61

Charan Nandi Chaudhary v. Ranjit Prasad, MANU/BH/0039/1932 : AIR 1932 Pat 360 88
Chiranjilal Shrilal v. Jasjit Singh, MANU/SC/0496/1993 : (1993) 2 SCC 507: 1993 (2) ALT 36
13 (SC): 1993 (2) BLJR 1193: JT 1993 (2) SC 341: (1993) 2 SCALE 146: (1993) 2 SCR
454

Chunnilal Mehta v. Century Spinning & Mfg. Co., MANU/SC/0056/1962 : AIR 1962 SC 117
1314: (1963) 65 Bom LR 267: (1962) Supp 3 SCR 549

Clarpede v. Commercial Union Association, (1882) 32 WR Eng 262 57

Cooper v. Smith, (1884) 29 Ch D 700 56

Custodian of Branches of Banco National v. Nalini Naique, MANU/SC/0149/1989 : AIR 21

1989 SC 1589: 1989 Supp (2) SCC 275: (1989) 2 SCR 810: 1989 (2) UJ 171 (SC)

D
D. Joshi v. High Court of Judicature at Bombay, AIR 2011 SC 848 36

D.L.F. Housing & Construction Co. Ltd. v. Sarup Singh, MANU/SC/0491/1969 : AIR 1971 127
SC 2324: (1969) 3 SCC 807: (1970) 2 SCR 368

Dalip Kaur v. Major Singh, AIR 1996 P&H 108 61

Dalpat Kumar v. Prahlad Singh, MANU/SC/0056/1993 : AIR 1993 SC 276: (1992) 2 MLJ 49 110
(SC): 1992 (1) UJ 501 (SC)

Dayawati v. Inderjit, MANU/SC/0022/1966 : AIR 1966 SC 1423: (1966) 3 SCR 275 111

Dhani Ram Gupta v. Lala Sri Ram, MANU/SC/0380/1979 : AIR 1980 SC 15 8

Dhirendra Kumar v. Sughandhi Bain, MANU/SC/0130/1988 : AIR 1989 SC 147: JT 1988 78

(3) SC 778: (1988) 2 SCALE 1539: MANU/SC/0130/1988 : (1989) 1 SCC 85: (1988) Supp
3 SCR 196

Dhodha House v. S.K. Maingi, MANU/SC/2524/2005 : AIR 2006 SC 730: 2006 (1) ALD 138 38
(SC): 2006 (1) AWC 864 (SC): 2006 (1) BLJR 29: JT 2006 (1) SC 123; (2006) 1 MLJ 36
(SC): 2006 (32) PTC 1 (SC): RLW 2006 (1) SC 543: MANU/SC/2524/2005 : (2006) 9 SCC
41

Dhulabai v. State of Madhya Pradesh, MANU/SC/0157/1968 : AIR 1969 SC 78: (1968) 3 44

SCR 662: (1968) 22 STC 416 (SC)

(Page 2 of 12)
Dominion of India v. Gobordhan Das, AIR 1952 Cal 28 125

Durgesh Sharma v. Jayshree, AIR 2009 SC 285 27

Dwarka Das v. State of Madhya Pradesh, MANU/SC/0088/1999 : (1999) 3 SCC 500: AIR 31
1999 SC 1031:
1999 (1) CTC 635: JT 1999 (1) SC 375:1999 (I) OLR (SC) 388: (1999) 121 PLR 820:
(1999) 1 SCALE 76: (1999) 1 SCR 524: 1999 (2) UJ 895 (SC)
E

E. Moah Stephens v. H.G. Orme, 35 All 448 3

Edwyn Anthony Pereira v. R.K. Kuppuswamy Iyengar, MANU/AP/0786/2003 : AIR 2004 AP 85

165

Filmistan (Pvt.) Ltd., Bombay v. Bhagwandas, MANU/SC/0019/1970 : AIR 1971 SC 61: 90

(1970) 3 SCC 258
Firdous Omer v. Bankim Chandra Daw, ATR 200u SC 2759: 2007 (1) AWC 36 (SC): 8
2006 (4) JCR 84 (SC): JT 2006 (12) SC 545: (2006) 4 MLJ 1714 (SC): RLW 2007 (1) SC
191:
(2006) 7 SCALE 439: MANU/SC/3384/2006 : (2006) 6 SCC 569

Food Corporation of India v. Sukha Deo Prasad, MANU/SC/0444/2009 : AIR 2009 SC 100
2330

Forward Construction v. Prabhat Mandal, MANU/SC/0274/1985 : AIR 1986 SC 391: 53,54

(1986) 88 Bom LR 128:
(1985) 2 SCALE 1123: MANU/SC/0274/1985 : (1986) 1 SCC 100: (1985) Supp 3 SCR
766: (1986) 1 UJ 167 (SC)

Ganesh Trading Co. v. Moji Ram, MANU/SC/0018/1978 : AIR 1978 SC 484: (1978) 2 SCC 57
91: (1978) 2 SCR 614: 1978(10)UJ 162 (SC)
Ganga Bai v. Vijay Kumar, MANU/SC/0020/1974 : (1974) 2 SCC 393: AIR 1974 SC 1126: 57,112
(1974) 3 SCR 882
Gayathri Women's Welfare Association v. Gowrama, MANU/SC/0055/2011 : AIR 2011 SC 70
785

Goppupeddi Reddi v. Gopu T. Reddy, AIR 1991 AP 362 4

Govindaraju v. Alagappa, MANU/TN/0160/1926 : AIR 1926 Mad 911: (1926) 51 MLJ 194 72

Gujarat Agro Industries Co. Ltd. v. Municipal Corp. of City of Ahmedabad, (1999) 3 LRI 112
14: MANU/SC/0300/1999 : AIR 1999 SC 1818: JT 1999 (3) SC 259: (1999) 3 SCALE 40:
MANU/SC/0300/1999 : (1999) 4 SCC 468: (1999) 2 SCR 895:1999 (2) UJ 792 (SC)

Gundaji Sarwaji Shinde v. Ram Chandra Bhikaji Joshi, MANU/SC/0307/1978 : AIR 1979 SC 40
653:
MANU/SC/0080/1979 : (1979) 2 SCC 459: (1979) 2 SCR 586

Gupte Cardiac Care Centre and Hospital v. Olympic Pharma Care Pvt. Ltd., 2004 AIR 48
SCW 2427

Gurbachan Kaur v. Swaran Singh, MANU/UP/0062/1978 : AIR 1978 All 255 4

Gurdayal Singh v. Rajah of Faridkot, (1895) 22 Cal 222 15

(Page 3 of 12)
 H

H.S. Mills Co. v. M.W. Pardhan, MANU/SC/0269/1966 : AIR 1966 SC 1707: (1996) 36 87
Comp Cas 426 (SC): (1966) MANU/SC/0269/1966 : 60 ITR 508 (SC): (1966) 3 SCR 948

Hanil Ena Textile Ltd. v. Puromatic Filters Pvt. Ltd., 2004 AIR SCW 2914 42

Hardeva v. Ismail, MANU/RH/0036/1970 : AIR 1970 Raj 167 72

Haridas Alidas v. Godrej Rustom, MANU/SC/0019/1981 : (1984) 1 SCC 668: AIR 1983 SC 58
319:1982 (14) UJ 306 (SC)

Heeralal v. Kalvan Mai, MANU/SC/0829/1998 : AIR 1998 SC 618: 1998 (46) BLJR 444: 61
(1998) 1 Cal LT 45 (SC): JT 1997 (9)'SC 267: (1998) 1 MLJ 101 (SC): RLW 1998 (1) SC
70: (1997) 7 SCALE 196: MANU/SC/0829/1998 : (1998) 1 SCC 278: (1997) Supp 5 SCR
277: 1998 (1) UJ 155 (SC)
Hindustan Petroleum Corp. Ltd. v. Ram Chandra, MANU/SC/0087/1994 : AIR 1994 SC 478 88

Hiralal & Sons v. Luxmi Commercial Bank, (1984) 25 DLT CSN 33 95

Hiralal Patni v. Loonkaran Sethiya, MANU/SC/0015/1961 : AIR 1962 SC 21: (1962) 1 SCR 88
868

Ishwar Dass Jain r-. Sohan Lal, MANU/SC/0747/1999 : (2000) 1 SCC 434: AIR 2000 SC
426: 2000 (1) CTC 359: JT 1999 (9) SC 305: (2000) 125 PLR 56: RLW 2000 (1) SC 80:
(1999) 7 SCALE 277:

(1999) Supp 5 SCR 24: 2000 (1) UJ 666 (SC) 115

Issar Das Lulla v. Hari, MANU/TN/0228/1962 : AIR 1962 Mad 458 87

J. Kumaradasan Nair v. TRIC Sohan, MANU/SC/0186/2009 : AIR 2009 SC 1333 36

J.N. Basu v. Tarakchandra Raychowdhury, MANU/WB/0010/1946 : AIR 1947 Cal 28 125

Jacob v. Booth Distillery Co., (1901) 85 LT 362 95

Jagdishwar Sahai v. Surjan Singh Pal, MANU/UP/0145/1977 : AIR 1977 All 554 2

Jai Jai Ram Manohar Lal v. National Building Material Supply, Gurgaon, 59
MANU/SC/0016/1969 : AIR 1969 SC 1267: (1969) 1 SCC 869: (1970) 1 SCR 22

Jatan Kanwar v. Golcha Properties, MANU/SC/0041/1970 : AIR 1971 SC 374: (1971) 41 113
Comp Cas 230 (SC): (1970) 3 SCC 573: (1971) 3 SCR 247

Javarimal v. Mangilal, 1961 Raj LW 132 21

Johri Singh v. Sukh Pal Singh, MANU/SC/0245/1989 : (1989) 4 SCC 403: AIR 1989 SC 28
2073:1 (1991) BC 84 (SC): JT 1989 (3) SC 582: (1989) 96 PLR 617: (1989) 2 SCALE
518: (1989) Supp 1 SCR 17

Kalu Ram v. Charan Singh, MANU/RH/0004/1994 : AIR 1994 Raj 31 20

Kanahaiyalal v. Anupkumar, JT (2002) 10 SC 98 115

Kanta Prasad Singh v. Regional Manager F.C.I., MANU/BH/0104/1974 : AIR 1974 Pat 376 82

Kashibai v. Parwatibai, MANU/SC/0799/1995 : (1995) 6 SCC 213: 1995 (3) ALT 57 (SC): 116
(1995) 97 Bom LR 80:

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1995 (2) CTC 476: II (1996) DMC 266 SC: JT 1995 (7) SC 48: (1996) 1 MLJ 45 (SC):
1996 MPLJ 1: (1995) 5 SCALE 615: (1995) Supp 4 SCR 63
Kashinath Sansthan v. Srimad Sudhindra Thirtha Swamy, MANU/SC/1852/2009 : AIR 101
2010 SC 296

Kasturi Bai v. Anguri Chaudhary, (2003) 1 SCALE 735: 2003 (2) BLJR 1350: JT 2003 (2) 79
SC 159: (2003) 2 MLJ 54 (SC): (2003) 3 SCC 225: (2003) 1 SCR 892: 2003 (2) UJ 835
(SC)

Kerala State Electricity Boards case, MANU/KE/0021/1989 : AIR 1989 Ker 89 82

Kiran Singh v. Chaman Paswan, MANU/SC/0116/1954 : AIR 1954 SC 340:1954 (2) BLJR 36
426: (1955) 1 SCR 117

Kiranmoyee Dassi v. Chatterjee, AIR 1949 Cal 479 94

Kiranmoyee Dassi v. Dr. J. Chattarjee, (1945) 49 Cal WN 246 96

Kisandas Rupchand v. Rachappa Vitobha, 33 Bom 644 61

Kisandas v. Vithoba, ILR (1909) 33 Bom 644 56

Kondiba Dagadu Kadam v. Savitri Bai, JT (1999) 3 SC 163: AIR 1999 SC 2213: 1999 (2) 119
CTC 468: (1999) II MLJ 105 (SC): RLW 2000 (1) SC 89: (1999) 2 SCALE 633:
MANU/SC/0278/1999 : (1999) 3 SCC 722: (1999) 2 SCR 728: 1999 (2) UJ 820 (SC)

Krishna Kumar v. Grindlays Bank, AIR 1991 SC 889: (1991) 1 Cal LT 13 (SC):JT 1990 (3) 86
SC 58: MANU/SC/0200/1991 : (1990) 3 SCC 669: (1990) 2 SCR 961: 1990 (2) UJ 128
(SC)
Kusum Ingots and Alloys Ltd. v. Union of India, 2004 AIR SCW 2766 43

L.J. Leach & Co. v. Jardine Skinner & Co., MANU/SC/0009/1957 : AIR 1957 SC 357 61

Lakshmi Ram Bhuyan v, Hari Prasad Bhuyan, MANU/SC/1018/2002 : (2003) 1 SCC 197: 10
AIR 2003 SC 351: 2003 (1) AWC348 (SC): (2003) 2 Cal LT 34 (SC): JT 2002 (9) SC 542

Laxmi Shankar v. Yash Ram Vasta, MANU/SC/0254/1993 : AIR 1993 SC 1587: 1993 (2) 74
ALT 9 (SC): (1994) 1 GLR 25: (1993) 1 SCALE 26: MANU/SC/0254/1993 : (1993) 3 SCC
49

Lingareddi Sreenivasulu Reddi v. D. Muniratnam Reddi, MANU/AP/0104/1978 : AIR 1978 21

AP 173

lka Gupta v. Narender Kumar Gupta, MANU/SC/0793/2010 : AIR 2011 SC 9 25

M

M. Nagabhushanay. State of Karnataka, MANU/SC/0088/2011 : AIR 2011 SC 1113 54

M.L. Sethi v. R.P. Kapur, MANU/SC/0245/1972 : AIR 1972 SC 2379: (1972) 2 SCC 427: 64,
(1973) 1 SCR 697: (1973) 11 SCJ 543 126

Madan Lal v. Bai Krishan, MANU/SC/2520/2005 : AIR 2006 SC 645: 2006 (1) ALT 51 115
(SC): 2006 (1) AWC 662 (SC): (SC Supp) 2006 (1) CHN 174: 2006 (1) CTC 675: 2006
(2) JCR 1 (SC): JT 2005 (10) SC 494: (2006) 2 MLJ 287 (SC): (2005) 13 SCC 555

Madukar D. Shende v. Tarabai, MANU/SC/0016/2002 : AIR 2002 SC 637: 2002 (50) BLJR 51
509: 2002 (6) Bom CR 552:
(2002) 2 Bom LR 295: (2002) 1 Cal LT 44 (SC): (SC Supp) 2002 (2) CHN 13: 2002 (1)
JCR 448 (SC): JT 2002 (1) SC 74: (2002) 1 MLJ 181 (SC): (2002) 1 SCALE 103: (2002) 2

Mahabir Singh v. Subhash, MANU/SC/8048/2007 : AIR 2008 SC 276 67

(Page 5 of 12)
Mahanth Ram Das v. Ganga Das, MANU/SC/0027/1961 : AIR 1961 SC 882: (1961) 3 SCR 28
763

Mahboob Saheb v. Syed Ismail, MANU/SC/0698/1995 : AIR 1995 SC 1205: JT 1995 (3) 15
SC 168: 1996 (6) Kant LJ 194: (1995) 2 SCALE 395: MANU/SC/0698/1995 : (1995) 3
SCC 693

Mahendra Manilal Nanavati v. Sushila, MANU/SC/0192/1964 : AIR 1965 SC 364: (1964) 27

66 Bom LR 681: (1964) 7 SCR 267
Mahesh Yadav v. Rajeshwar Singh, AIR 2009 SC 1067 66

Major Singh v. Balbir Kaur 61

Man Singh v. Siva Prabakumari, MANU/MH/0292/1959 : AIR 1960 Bom 315 5

Mandati Ranganna v. T. Ramachandra, MANU/SC/7567/2008 : AIR 2008 SC 2291 102

Manikchandra v. Devdas Nandy, AIR 1986 SC 556 113

Manohar Lai v. Rai Bahadur Rao Raja Seth Hira Lal, MANU/SC/0056/1961 : AIR 1962 SC 101,
527: (1962) Supp 1 SCR 450 46, 106
Martin Burn Ltd. v. R.N. Banerjee, MANU/SC/0081/1957 : AIR 1958 SC 79: (1958) I LLJ 102
247 SC: (1958) 1 SCR 514

Mathakala Krishnaiah v. V. Rajagopal, JT (2004) 9 SCC 205 115

Md. Sabir Ansari v. Sada Nanda Mandal, MANU/JH/0619/2009 : AIR 2010 Jhar 43 74

Mechalec Engineers v. M/s Basic Equipment Corp., MANU/SC/0043/1976 : AIR 1977 SC 95

577: (1976) 4 SCC 687:
(1977) 1 SLR 1060: 1976 (8) UJ 953 (SC)

Michael Mascarenhas, Major v. Johu Mascarenhas, MANU/KA/0070/1996 : AIR 1996 Kant 125
348: ILR 1996 Kant 1957:
1996 (3) Kant LJ 114

Milkhi Ram (India) Pvt. Ltd. v. Chamanlal Bros., MANU/SC/0376/1965 : AIR 1965 SC 1698 96
Minakshi v. Subranranaya, 14 IA 160 2

Mithailal Datsanagar Singh v. A. Devram Kini, (2003) 10 SCC 699 22

Modi Entertainment Network v. W.S.C. Cricket P.T.E. Ltd., (2003) 1 SCALE 388: 109
MANU/SC/0039/2003 : AIR 2003 SC 1177: 2003 (1) Arb LR 533 (SC): 2003 (1) CTC 429:
JT 2003 (1) SC 382:
(2003) 2 MLJ 98 (SC): MANU/SC/0039/2003 : (2003) 4 SCC 341: (2003) 1 SCR 480

Morgan Stanley v. Kartic Das, MANU/SC/0553/1994 : (1994) 4 SCC 225: (1994) 96 Bom 105
LR 933: (1995) 1 Cal LT 18 (SC):
(1994) 81 Comp Cas 318 (SC): JT 1994 (3) SC 654: (1994) 2 SCALE 1121: (1994) Supp
1 SCR 136

Mst. Bhonri v. Suwalal, MANU/RH/0036/1956 : AIR 1956 Raj 119 2

Mst. Chauli v. Mst. Meghoo, MANU/UP/0069/1944 : AIR 1945 All 268 3

Mst. Kiran Devi v. Abdul Wahid, AIR 1996 All 105 5

Mst. Sugani v. Rameshwar Das, MANU/SC/8106/2006 : AIR 2006 SC 2172: 2006 (4) ALD 116
41 (SC):
2006 (3) AWC 2392 (SC): (SC Suppl) 2006 (4) CHN 26: 2006 (3) CTC 108:

(Page 6 of 12)
2007 (1) JCR 218 (SC): (2006) 3 ML] 131 (SC): (2006) 4 SCALE 491
Muttangi Ranga Nayakamma v. VVKV Mahalakhmi, MANU/AP/0096/1972 : AIR 1972 AP 113
117

Nabin Majhi v. Teja Majhi, MANU/WB/0099/1978 : AIR 1978 Cal 440: (1978) 2 Comp LJ 51
150 (Cal): 82 CWN 1097

Nagendra Nath v. Suresh Chandra, MANU/PR/0017/1932 : AIR 1932 PC 165: (1932) 34 111
Bom LR 1065

Nagendranath v. Hyat, MANU/WB/0143/1933 : AIR 1933 Cal 865 21

Nandita Bose v. Ratan Lai, MANU/SC/0558/1987 : AIR 1987 SC 1947: (1987) 1 Cal LT 67 25
(SC): JT 1987 (3) SC 217: (1987) 2 SCALE 215: MANU/SC/0558/1987 : (1987) 3 SCC
705: (1987) 3 SCR 792: 1987 (2) UJ 483 (SC)

Narasingha Das v. Ratiram Gupta, AIR 1965 Hyd 41 5

Narinder Singh v. Jagmohan Singh, 80 (1999) DLT 107 61

National Institute of M.H. & N.S. v. C. Parameshwara, MANU/SC/1063/2004 : AIR 2005 46

SC 242: 2005 (2) ALD 49 (SC):
2005 (2) AWC 1865 (SC): 2005 (1) CTC 156: 2005 (2) JCR 93 (SC): 2005 (1) Kant LJ
486:
(2005) I LLJ 566 (SC): 2005 (2) Mah LJ 1: MANU/SC/1063/2004 : (2005) 2 SCC 256

National Institute of Mental Health and Neuro Sciences v. C. Rameswara, 34

MANU/SC/1063/2004 : AIR 2005 SC 242

National Textile Corpn. Ltd. v. Hari Box Swalram, 2004 AIR SCW 2067 41

O.N.G.C. v. Utpal Kumar Basu, MANU/SC/0759/1994 : (1994) 4 SCC 711:1994 (3) ALT 5 42
(SC): (1995) 1 Cal LT 5 (SC):
JT 1994 (5) SC 1: (1995) 109 PLR 245: (1994) 3 SCALE 90: (1994) Supp 1 SCR 252

Official Trustee v. Sachindra Nath Chatterjee, MANU/SC/0240/1968 : AIR 1969 SC 823: 35

(1969) 3 SCR 92

P.M.A. Metropolitan v. MM. Marthoma, MANU/SC/0407/1995 : AIR 1995 SC 2001: JT 37

1995 (5) SC 1: (1995) 4 SCALE 1: 1995 Supp (4) SCC 286: (1995) Supp 1 SCR 542

P.P. Gupta v. East Asiatic Comp., MANU/UP/0036/1960 : AIR 1960 All 184 47

P.V. Shetty v. B.S. Ciridhar, MANU/SC/0478/1981 : AIR 1982 SC 83: (1982) 3 SCC 403 46

Padma Sen v. State of Uttar Pradesh, MANU/SC/0065/1960 : AIR 1961 SC 218: 1961 Cr 91
LJ 322: (1961) 1 SCR 884

Paidsetti Bhanknarayna v. Paidsetti Rajeshwar Rao, AIR 1999 Ori 92 102

Pal Singh v. Sunder Singh, MANU/SC/0404/1989 : AIR 1989 SC 758: JT 1989 (1) SC 67: 74
(1989) 1 SCALE 36: MANU/SC/0404/1989 : (1989) 1 SCC 444: (1989) 1 SCR 67:1989 (1)
UJ 316 (SC)

Paramjcct Singh Patheja v. ICDS Ltd., (2006) 11 SCALE 459: MANU/SC/4798/2006 : AIR 2
2007 SC 168: 2006 (4) Arb LR 202 (SC): 2007 (4) Bom CR 447: (2006) 6 Comp LJ 425
(SC): 2006 (5) CTC 357: JT 2006 (10) SC 41

(Page 7 of 12)
Parimal v. Veena, MANU/SC/0105/2011 : AIR 2011 SC 1150 131

Parmanand Patel v. Sudha A. Chowgule, MANU/SC/0377/2009 : AIR 2009 SC 1593 87

Parvathamma v. A. Muniyappa, MANU/KA/0062/1997 : AIR 1997 Kant 370:1997 (4) Kant 5

LJ 95

Patbrosc v. Kuttan, AIR 1991 Ker 186 129

Patna Municipal Corporation v. Brij Raj Krishna, MANU/BH/0011/1958 : AIR 1958 Pat 22 125

Phoolchand v. Gopal Lai, MANU/SC/0284/1967 : AIR 1967 SC 1470: (1967) 3 SCR 153 6

Pirgonda Hongonda v. Kalgonda Shidgonda, MANU/SC/0002/1957 : AIR 1957 SC 363: 60

(1957) 59 Bom LR 401

Premabai v. Jnaneshwar Ramakrishna Patange, 2003 AIR SCW 2922 115

Pukhraj D. Jain v. G. Gopalakrishna, (2004) 4 SCALE 688: MANU/SC/0364/2004 : AIR 47

2004 SC 3504: 2004 (3) AWC 2214 (SC): 2004 (3) CTC 308: JT 2004 (5) SC 329: (2004)
3 MLJ 183 (SC): (2004) 7 SCC 251

Punjab & Sindh Bank v. M/s. Ram Prakash Jagdish Chander, (1992) BC 471 94

Puran Ram v. Bhaguram, MANU/SC/7233/2008 : AIR 2008 SC 1960 56

Puranmasi Yadav v. Narbadeshwar Tripathi, MANU/UP/0175/1998 : AIR 1998 All 260: 8
1998 (2) AWC 831

Purushottam Umedbhai & Co. v. Manilal Sons, MANU/SC/0004/1960 : AIR 1961 SC 325: 59
(1961) 1 SCR 982

R. Ramakrishna Roddy v. M. Kamala Devi, MANU/AP/0425/2004 : AIR 2004 AP 484 90

R.V. Dev v. Chief Secretary, Government of Kerala, MANU/SC/7704/2007 : AIR 2007 SC 63
2698

Rachakonda V. Rao v. R. Satya Bai, MANU/SC/0702/2003 : AIR 2003 SC 3322: 2003 (6) 7
ALD 110 (SC):
96 (2003) CLT 749 (SC): JT 2004 (6) SC 83: (2003) 7 SCALE 430: (2003) 7 SCC 452

Raghunath Prasad Singh v. Deputy Commissioner Pratapgarh, MANU/PR/0012/1927 : AIR 117

1927 PC 110

Raj Duggal v. Ramesh Kumar, MANU/SC/0393/1990 : AIR 1990 SC 2218: 1991 Supp (1) 93
SCC 191

Raj Rajendra Sardar Maloji Marsingh Rao Shitole v. Shankar Saran, MANU/SC/0013/1962 : 14
AIR 1962 SC 1737: (1963) 2 SCR 577

Rajendra Prasad Gupta it. Prakash Chandra Mishra, MANU/SC/0211/2011 : AIR 2011 SC 30
1137

Rajesh Kumar Aggarwal v. K.K. Modi, MANU/SC/8043/2006 : AIR 2006 SC 1647: 2006 (3) 55
ALD 61 (SC): 2006 (3) ALT 50 (SC): 2006 (2) AWC 1886 (SC): 2006 (3) JCR 58 (SC): JT
2006 (3) SC 607: (2006) 3 KLT 192 (SC): 2006 (4) Mah LJ 719: (2006) 3 MLJ 70 (SC):
2006 (It) OLR (SC) 561: RLW 2006 (3) SC 1882: (2006) 3 SCALE 312:
MANU/SC/8043/2006 : (2006) 4 SCC 385

Rajesh Singh v. Manoj Kumar, MANU/MP/0216/2009 : AIR 2010 MP 16 47

Rajni Kumar v. Suresh Kumar Malhotra, MANU/SC/0255/2003 : (2003) 5 SCC 315: AIR 97

(Page 8 of 12)
2003 SC 1322: 2003 (4) ALD 82 (SC):
2003 (2) AWC 1597 (SC): 2003 (2) CTC 59: 2003 (4) JCR 213 (SC): JT 2003 (3) SC 307:
(2003) 134 PLR 249: RLW 2003 (2) SC 301: (2003) 3 SCALE 434: (2003) 3 SCR 66: 2003
(2) UJ 810 (SC)
Ram Chand and Sons Sugar Mills Pvt. Ltd. v. Kanhaya Lal Bhargava, 33
MANU/SC/0263/1966 : AIR 1966 SC 1899; 1967 BLJR 59: (1967) 37 Comp Cas 42 (SC):
(1966) 3 SCR 856

Ram Gobinda v. Bhakta Bala, MANU/SC/0586/1971 : AIR 1971 SC 664: (1971) 1 SCC 51
387: (1971) 3 SCR 340

Ram Karan Das v. Bhagwan Das, MANU/SC/0286/1964 : AIR 1965 SC 1144: (1965) 67 31, 94
Bom LR 779: (1965) 2 SCR 186
Ram Kumar v. State of Rajasthan, MANU/SC/4259/2008 : AIR 2009 SC 4 124

Ram Prasad Singh v. Subhodh Prasad Singh, MANU/BH/0067/1983 : AIR 1983 Pat 278 103
Ramachandra Dagdu Sonavane v. Vithu Hira Mahar, MANU/SC/1731/2009 : AIR 2010 SC 51
818

Ramchandra Arya v. Mansingh, MANU/SC/0352/1967 : AIR 1968 SC 954:1968 (16) BLJR 79

610: (1968) 2 SCR 572

Ramji Das v. S. Mohammad Laiq, MANU/UP/0215/1953 : AIR 1953 All 461 12

Ramprasad v. Jamnaprasad, AIR 1962 MB 143 20

Ratan Singh v. Vijaya Singh, AIR 2001 SC 279 2

Renu Devi v. Mahendra Singh, MANU/SC/0112/2003 : (2003) 10 SCC 200: AIR 2003 SC 7
1608: 2003 (51) BLJR 699: 2003 (2) JCR 195 (SC): JT 2003 (5) SC 164: (2003) 2 SCALE
22: (2003) 1 SCR 820

Roop Singh v. Ram Singh, MANU/SC/0204/2000 : (2000) 3 SCC 708: 2001 (1) BLJR 488: 115
JT 2000 (3) SC 474: 2000 (3) MPHT 18: (2000) 2 SCALE 577: (2000) 2 SCR 605: 2000
(2) UJ 825 (SC)

S. Balwant Lokhande v. Chandrakant Shankar Lokhande, MANU/SC/0243/1995 : (1995) 3 6

SCC 413: AIR 1995 SC 1211: JT 1995 (3) SC 186: (1992) IT LLJ 18 (SC): (1995) 2
SCALE 318: (1995) 2 SCR 776: 1992 (1) SLJ 7 (SC): 1995 (1) UJ 707 (SC)

S. Satnam Singh v. Surender Kaur, MANU/SC/8431/2008 : AIR 2009 SC 1089 4

S.B. Minerals v. M/s. MSPL Ltd., MANU/SC/1945/2009 : AIR 2010 SC 1137 5

S.P. Chengalvaraya Naidu v. Jagannath, MANU/SC/0192/1994 : AIR 1994 SC 853: II 16
(1993) BC 546 (SC): 1994 (1) BLJR 216: JT 1993 (6) SC 331: 1994 (I) OLR (SC) 201:
(1995) 109 PLR 293: (1993) 4 SCALE 277: MANU/SC/0192/1994 : (1994) 1 SCC 1:
(1993) Supp 3 SCR 422: 1994 (1) UJ 1 (SC)

Sahebgouda (Dead) by LRs v. Ogeppa, MANU/SC/0257/2003 : (2003) 6 SCC 151: (2003) 82

3 Cal LT 44 (SC): JT 2003 (3) SC 338: (2003) 2 MLJ 143 (SC): (2003) 3 SCALE 446:
(2003) 3 SCR 90: 2003 (2) UJ 914 (SC)

Sangram Singh v. Election Tribunal, Kotah, MANU/SC/0044/1955 : AIR 1955 SC 425: 68

(1955) 2 SCR 1

Sankaran Govindan v. Lakshmi Bharathi, MANU/SC/0406/1974 : AIR 1974 SC 1764: 16

(1975) 3 SCC 351: (1975) 1 SCR 57

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Santosh Hazari v. Purshottam Tiwari, AIR 2001 SC 965: (2001) 251 ITR 84 (SC): JT 2001 118
(2) SC 407: (2001) 2 MLJ 69 (SC): 2001 (3) MPHT 71: (2001) 1 SCALE 712:
MANU/SC/0091/2001 : (2001) 3 SCC 179: (2001) 1 SCR 948
Santosh Kumar v. Bhai Mool Singh, (1958) 1 SCR 1211: MANU/SC/0013/1958 : AIR 1958 94,96
SC 321: (1958) 36 Mys LJ (NULL)

Sardar Pritam Singh v. Addl. District Judge, Mathura, 1995 All CJ 971 5

Sarju Pershad v. Raja Jwaleshwari, MANU/SC/0002/1950 : AIR 1951 SC 120: (1950) 1 121
SCR 781

Satguru Construction Company Pvt. Ltd. v. Greater Bombav Co-operative Bank Ltd., 36
(2007) 5 AIR Bom 37

Satya v. Teja Singh, MANU/SC/0212/1974 : AIR 1975 SC 105: 1975 Cr LJ 52: (1975) 1 12, 15
SCC 120: (1975) 2 SCR 197

Satyadhyan Ghosal v. Deorajin Debi, MANU/SC/0295/1960 : AIR 1960 SC 941: (1960) 3 49

SCR 590

Satyanarain v. Balchand, ILR (1954) 4 Raj 905 15

Shahzadabi v. Halimbai (since dead) by her LRs., (2004) 6 SCALE 373: 23

MANU/SC/0569/2004 : AIR 2004 SC 3942: 2004 (6) ALT 43 (SC): 2004 (3) AWC 2598:
99 (2005) CLT 10 (SC): 2005 (3) JCR 233 (SC): JT 2004 (6) SC 172: 2005 (1) Kant LJ
298: RLW 2004 (3) SC 459: MANU/SC/0569/2004 : (2004) 7 SCC 354

Shakuntala Devi Jain v. Kuntal Kumari, MANU/SC/0335/1968 : AIR 1969 SC 575: (1969) 1 3
SCR 1006

Sham Mohan Lai v. Jai Gopal, AIR 1968 Del 104 125

Shambhu Dayal Khetan v. Motilal Murarka, MANU/BH/0026/1980 : AIR 1980 Pat 106 24

Shankar R. Abhvankar v. Krishnaji, MANU/SC/0456/1969 : AIR 1970 SC 1: (1970) 72 Bom 125

LR 179: (1969) 2 SCC 74: (1970) 1 SCR 322
Sheikh Atham v. Davud, 1909 Mad 469 14

Sheikh Mastan Sahib v. Balrammi Reddi, AIR 1953 Mad 952 58

Shiv Kumar Chadha v. M.C.D., MANU/SC/0522/1993 : (1993) 3 SCC 161: JT 1993 (3) SC 103
238: (1993) 2 SCALE 772: (1993) 3 SCR 522

Shiv Kumar Sharma v. Santosh Kumari, MANU/SC/7929/2007 : AIR 2008 SC 171 36

Shiv Shakti Coop. Housing Society v. Swaraj Developers, MANU/SC/0335/2003 : (2003) 122
6 SCC 659: AIR 2003 SC 2434:
MANU/AP/0279/2003 : 2003 (4) ALD 1 (SC): 2003 (4) ALT 27 (SC): 2003 (3) AWC 198
(SC): 2003 (2) BLJR 1324:
2003 (2) CTC 564: (2004) 1 GLR 38: 2003 (4) JCR 22: (2003) 3 SCR 762: 2003 (2) UJ
1102 (SC)

Shriram City Union Finance Corp. v. Rama Mishra, MANU/SC/2500/2000 : AIR 2002 SC 40
2402: (2002) 9 SCC 613

Skyline Education Institute (Pvt.) Ltd. v. S.L. Vaswani, MANU/SC/0009/2010 : AIR 2010 106
SC 3221

South Konkan Distilleries v. Prabhakar Gajanan Naik, MANU/SC/8043/2008 : AIR 2009 SC 55

1177

Southern Sales and Services v. Sauernilch Design and Handles Gmbh, 93

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MANU/SC/4488/2008 : AIR 2009 SC 320
State Bank of Saurashtra v. M/s Ashit Shipping Services (P) Ltd., MANU/SC/0314/2002 : 99
AIR 2002 SC 1993:
2002 (3) ALD 83 (SC): II (2002) BC 536 (SC): (2002) 3 Cal LT 1 (SC):
(2002) 110 Comp Cas 329 (SC): (2002) 3 GLR 2401: JT 2002 (4) SC 85: (2002) 3 PLR
547:
(2002) 3 SCALE 390: MANU/SC/0314/2002 : (2002) 4 SCC 736: (2002) 2 SCR 1074:
2002 (1) UJ 700 (SC)

State of Andhra Pradesh v. Gundugola Venkata Suryanarayana, AIR 1965 SC 11: (1964) 81
4 SCR 945

State of Andhra Pradesh v. Manjeti Laxmi Kantha Rao (D) by LRs., MANU/SC/0238/2000 38
: AIR 2000 SC 2220:
2001 (1) BLJR 473: JT 2000 (4) SC 157: (2000) 3 SCALE 61: (2000) 3 SCC 689: (2000)
2 SCR 937
State of Kamataka v. All India Manufacturers Organisation, MANU/SC/2206/2006 : AIR 49
2006 SC 1846: 2006 (4) Kant LJ 369: (2006) 4 SCALE 398: MANU/SC/2206/2006 :
(2006) 4 SCC 683
State of Punjab v. Darshan Singh, MANU/SC/0335/2005 : AIR 2005 SC 2435 31

State of Rajasthan v. Rajpal Singh Chauhan, MANU/RH/0446/2011 : AIR 2011 Raj 101 2

State of Uttar Pradesh v. Nawab Hussain, MANU/SC/0032/1977 : AIR 1977 SC 1680: 53

(1977) 2 SCC 806: (1977) 3 SCR 428
State of West Bengal v. Kamal Sengupta, AIR 2009 SC (Supp) 476 132

State of West Bengal v. Kesoram Industries Ltd., AIR 2005 SC 1646: (2004) 187 CTR 9
(SC) 219: (2004) 266 ITR 721 (SC): JT 2004 (1) SC 375: (2004) 1 SCALE 425: (2004)
10 SCC 201

Subodh Kumar Neogi v. Panchu Gopal Neogi, AIR 1985 (NOC) 120 Cal) 117
Sudhir G. Angur v. M. Sanjeev, MANU/SC/1647/2005 : (2006) 1 SCC 141 36

Surinder Singh Arora v. Major Sohan Singh Arora, AIR 1986 Del 293: 28 (1985) DLT 28 130

Swastik Oil Mills v. H.B. Munshi, MANU/SC/0317/1967 : AIR 1968 SC 843: (1968) 2 SCR 128
492: (1968) 21 STC 383 (SC)

T.K. Bose v. Savitri Devi, AIR 1996 SC 2752: 1996 VIAD (SC) 97: (1997) 1 Cal LT 49 91
(SC): JT 1996 (7) SC 480: (1996) 5 SCALE 574: (1996) 10 SCC 96: (1996) Supp 4 SCR
17

Teja Singh v. Union Territory of Chandigarh, AIR 1982 P&H 169 75

Thakur Kishan Singh v. Arvind Kumar, MANU/SC/0015/1995 : (1994) 6 SCC 591 115

Thomson Press (I) Ltd. v. M/s Advertising Plus, 80 (1999) DLT 648 108

Ummed Mai v. Kundanmal, MANU/RH/0045/1981 : AIR 1981 Raj 202 4

Union of India v. B. Valluban, MANU/SC/8573/2006 : AIR 2007 SC 210 131

Union of India v. Heera Devi, MANU/SC/0003/1952 : AIR 1952 SC 227: (1952) 1 SCR 765 88

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V.J. Thomas v. Pathrose Abraham, AIR 2008 SC 503 76

Van Vibhag Karamchari Griha Nirmana Sahakari Sanstha Maryadit v. R. Chandra, 55

MANU/SC/0866/2010 : AIR 2011 SC 41

Vasant Ambadas Pandit v. Bombay Municipal Corpn., MANU/MH/0348/1981 : AIR 1981 82

Bom 394: (1981) 83 Bom LR 248

Venkata Reddy v. Pethi Reddy, AIR 1963 SC 993 5

Venkata Subbiah v. Lakshmi Narasimbam, (1925) AM 1274 69

Vidyacharan v. Khubachand Baghel, MANU/SC/0120/1963 : AIR 1964 SC 1099: (1964) 6 9

SCR 129

Vijay Kumar Madan v. R.N. Gupta Technical Education Society, MANU/SC/0377/2002 : 69

AIR 2002 SC 2082:
2002 (4) ALT 59 (SC): 2002 (2) AWC 1593 (SC): JT 2002 (4) SC 443: (2003) 1 MLJ 58
(SC): (2002) 4 SCALE 191: MANU/SC/0377/2002 : (2002) 5 SCC 30: (2002) 3 SCR 217:
2002 (2) UJ 882 (SC)

Vijay Raj v. Lai Chand, (1966) ILR Raj 194 12

Vishwanathan v. Abdul Wazid, AIR 1963 SC 21 13

W

Wada Arun Asbestors (P.) Ltd. v. Gujarat Water Supply and Sewerage Board, 93
MANU/SC/8462/2008 : AIR 2009 SC 1027
Y

Y. Narasimha Rao v. Venkata Lakshmi, MANU/SC/0603/1991 : (1991) 3 SCC 451: 1991 16

(2) Crimes 855 (SC): II (1991) DMC 366 SC: JT 1991 (1) SC 33: (1991) 2 SCR 821

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