Code of Civil Procedure Tutorials

Prepared By: Gaurav Bhalla B.A. LL.B.(Hons.) Faculty of Law, Jamia Millia Islamia Q:1 How do you interpret a family in the light of Order V Rule 15? (a) Can a niece living for two years with the defendants family be served summons? (b) A daughter of a friend who is staying with the defendant?

A:1 In order to attract the mischief of Order V Rule 15, the first task is to look into the essential pre-conditions which need to be satisfied:(i) The defendant should be absent from his residence at the time when the summon was sought to be affected on him. (ii) No likelihood of his being found at his residence within a reasonable time. (iii) No agent is empowered to accept service of the summon on his behalf. The process server can serve the summon to any adult member of the family, whether male or female. The term family for the purpose of this provision cannot be interpreted in an objective manner. It should be seen whether the person concerned has blood relation with the family, since how long he/she has been residing with the family, what are the persons chances of leaving the residence of the defendant, etc. These are some of the factors which are necessary to be kept in mind in order to determine the scope of a family. (a) In the given situation, the niece can be considered as a member of the family only if she is residing with the defendants family for a considerable period of time. It should be seen that although a niece would not qualify to be a part of a nuclear family, but we can see that she has been staying with the defendants family for the past two years, hence, she can qualify for being a member of the defendants family. It should be noted here that the time period of residence does not form an objective

criteria for determining the qualification for being a family member. It is only to ascertain as to whether the person has actually formed an important and integral part of the family. In addition to this, a niece is in a blood relation with the defendants family. Thus, according to my opinion, in the present case, the niece would qualify to be a part of the family and the summons can be served upon her. (b) The second scenario is that of the friends daughter staying with the defendants family. In the present situation, she is merely residing with the defendants family and cannot be considered as being a part of it. There is no blood relation between the friends daughter and the defendants family. The explanation to Order V Rule 15 should also be referred to. A servant has been specifically excluded from the purview of the family even though he might be staying with the family for a considerable period of time. This has been done keeping in mind that the servant does not have a blood relation with the family and he may leave the residence of the family at any point of time. Using the same analogy, a friends daughter cannot be cons idered as a part of the family and thus the summons cannot be served upon her.

Q:2 In a suit, plaintiff has prayed that the defendant should be directed to pay a sum of Rs. 5000 as arrears of rent and also the defendant should be directed to vacate the premises. In the written statement, the defendant claimed that the plaintiff has been regularly paying the rent. His claim is that no rent is due nor can he be illegally evicted from the premises. Subsequently, the defendant moves an application under Order VI Rule 17, for amendment of the written statement to the effect that he is the owner of the premises and not the tenant. As such it is claimed that it is an anticipated amendment that the defendant is the owner of the premises and as a consequence of this no rent is due. Decide whether such amendment is permissible under Order VI Rule 17 of the CPC.

A:2 Order VI Rule 17 provides for amendment of pleadings. It provides for: 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 just, and all such amendments shall be made as may be necessary for the purpose of determining the real question 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. The object of the Rule is that the courts should try the merits of the case that comes before it and should consequently allow the 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.1 Ultimately, courts exist for the purpose of doing justice between the parties and not for punishing them, and they are empowered to grant amendments of pleadings in the larger interest of doing full and complete justice to the parties.2 Provisions for the amendment of pleadings are intended for promoting the ends of justice and not for defeating them.3 In the case of Ma Shwe Mya v. Maung Mo Hnaung4, the Privy Council has rightly stated: All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change, by means of amendment, the subject-matter of the suit. Generally, in the following cases, leave to amend will be refused by the court: (1) Leave to amend will be refused where the amendment is not necessary for the purpose of determining the real question in controversy between the parties. (2) Leave to amend will be refused if it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit or defence.5 (3) Leave to amend will be refused where the effect of the proposed amendment is to take away from the other side a legal right accrued in his favour. 6 (4) Leave to amend will be refused where the application for amendment is not made in good faith.7

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Pirgonda Patil v. Kalgonda Patil, AIR 1957 SC 363: 1957 SCR 559 Jai Jai Ram Manohar v. National Building Material Supply, (1969) 1 SCC 869: AIR 1969 SC 1267 3 State of A.P. v. Pioneer Builders, (2006) 12 SCC 119: AIR 2007 SC 113 4 AIR 1922 PC 249 5 State of A.P. v. Pioneer Builders, (2006) 12 SCC 119: AIR 2007 SC 113 6 Ramchandra v. Damodar Trimbak, (2007) 6 SCC 737: AIR 2007 SC 2577 7 Pirgonda Patil v. Kalgonda Patil, AIR 1957 SC 363

In the present case, the defendant sought an amendment in the written statement under Order VI Rule 17 of the CPC. The defendant had earlier filed a written statement stating that he was the tenant of the said premises and was regularly paying the rent. Thereafter, he is seeking an amendment in the written statement stating that he was the owner of the said premises. In view of the abovementioned principles, we can clearly see that an amendment should only be granted if the party in spite of exercising due diligence, it could not have raised the matter before the commencement of trial. Also, the amendment should not cause any prejudice to the other party. It should also be noted that amendment in pleadings will also be refused if it changes the fundamental character of the suit or defence. In the case before us, we can clearly see that the defendant did not exercise due diligence as initially he stated that he is the tenant of the premises and thereafter claimed to be the owner of the same. The change in his statement clearly shows his mala fide intent. Also, the said amendment if granted would introduce a totally new, different and inconsistent case which would change the fundamental character of the case. Thus, in my view the said amendment that the defendant is seeking under Order VI Rule 17 should not be granted.

Q:3 A files a suit against Mr. X for declaration that Black Acre should be decreed as property as it is vested in A. Mr. X (the defendant) contacts you and intimates that this controversy has already been adjudicated by a court of competent jurisdiction. In fact the present suit in a sense is a subsequent suit arising from the same cause of action which has been earlier conclusively determined by the Supreme Court. On what provision of law, would you take the preliminary defence about this maintainability of subsequent litigation? Essential components of the said law should be comprehensively explained.

A:3 The present case would be attracted by the provisions of Order VII Rule 11 which covers rejection of plaint. Under the provisions of Order VII Rule 11, a plaint could be rejected on the following grounds: (a) where the plaint does not disclose the cause of action (b) where relief claimed is undervalued

(c) where plaint is insufficiently stamped (d) where suit is barred by law (e) where plaint is not in duplicate (f) where the plaintiff fails to comply with the provisions of rule 9 The present situation would be hit by Clause (d) of Order VII Rule 11 which states that the plaint would be rejected if it is barred by law. For instance, where in a suit against the government, the plaint does not state that a notice as required by Section 80 of the Code has been given, the plaint will be rejected under this clause. Likewise, if the plaintiff itself shows that the claim is barred by limitation, the plaint can be rejected. The present issue at hand has already been decided by the Supreme Court in a previous case earlier and hence the present suit would be attracted by the mischief of res judicata. Doctrine of res judicata states that once a matter is finally decided by a competent court, no party can be permitted to reopen it in a subsequent litigation. Thus, as the present case is hit by mischief of doctrine of res judicata, the plaint would be rejected in the first hand as provided in clause (d) of Order VII Rule 11.

Q:4 A suit is to be filed for recovery of a liquidated demand of money raised on a written contract. You and your friend disagree on the process and procedure to be followed for a summary adjudication of the rights of the parties. Convince your friend that provision of Order XXXVII provide for a speedy remedy in civil law in adjudication in disputes.

A:4 Order 37 provides summary procedure in suits based on negotiable instruments or where the plaintiff seeks to recover debt or liquidated amount. The essence of summary suits is that the defendant is not, as in an ordinary suit, entitled as of right to defend the suits. He must apply for leave to defend within the stipulated period 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 sufficient. The provisions of

Order 37 are merely rules of procedure. They do not alter the nature of the suit or jurisdiction of courts.8 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.9 It is to ensure that the defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining a decree by raising untenable and frivolous defences in a class of cases where speedy decisions are desirable in the interests of commercial transactions. The discretionary power conferred upon the court under Order 37 should be exercised judicially, judiciously and on well-settled principles of natural justice. Wherever defence raises a triable issue, leave should be granted unconditionally. If it is not done, leave may become illusory.10 Care should be taken to see that the object of the rule to assist the expeditious disposal should not be defeated. But it also must be ensured that real and genuine triable issues are not shut out by unduly severe order as to deposit. 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 or a fair dispute has arisen, leave to defend should not be refused. Again, it is hazardous and unfair to pronounce a categorical opinion on such matter before the evidence is taken. It is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed that the exercise of discretion to grant unconditional leave can be refused.

Q:5 An applicant to a course in a University failed in entrance examination and thus was unable to secure admission in the course of his choice. Subsequently, he challenged the entire process of admission as been vitiated by equality clause of Article 14 of the Constitution. When the challenge was been adjudicated by the Honble Court, he moves an application for an interim injunction to the effect that the University will be directed to keep one seat vacant in the final disposal of the matter. Discuss as to whether such an interim relief can be validly granted with

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Prayag Deb v. Rama Roy, AIR 1977 Cal 1 (FB) Milkhiram India (P) Ltd. v. Chamanlal Bros., AIR 1965 SC 1698: (1966) 68 Bom LR 36 10 Larsen & Toubro Ltd. v. Arun Kumar, (2000) 4 JT 556

specific references to the essential conditions governing for the grant of interim injunction.

A:5 An injunction is a judicial process 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 a particular person that either prohibits him from doing or continuing to do a particular act; or orders him to carry out a certain act. It is well-settled principle of law that interim order 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. 11 Temporary injunctions are thus injunctions issued during the pendency of proceedings. The underlying object of granting temporary injunction is to maintain and preserve status quo at the time of institution of the proceedings and to prevent any change in it until the final determination of the suit. It is in the nature of protective relief granted in favour of a party to prevent future possible injury. The power to grant a temporary injunction is at the discretion of the court. Generally, before granting the injunction, the court must be satisfied about the following aspects: (a) Prima facie case The first rule is that the applicant must make out a prima facie case in support of the right claimed by him. The court must be satisfied that there is a bona fide dispute raised by the applicant, that there is a strong case for trial which needs investigation and a decision on merits and on the facts before the court there is a probability of the applicant being entitled to the relief claimed by him. (b) Irreparable injury The applicant must further satisfy the court about the second condition by showing that he will suffer irreparable injury if the injunction s prayed is not granted, and that there is no remedy open to him by which he can protect himself from the consequences of apprehended injury. Granting of injunction is an equitable relief and such a power can be exercised when judicial intervention is absolutely necessary to protect rights and interests of the applicant.
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Shiv Kumar v. MCD, (1993) 3 SCC 161

(c) Balance of inconvenience The third condition for granting interim injunction is that the balance of convenience must be in favour of the applicant. In other words, the court must be satisfied that the comparative mischief, hardship or inconvenience which is likely to be caused to the applicant by refusing the injunction will be greater than that which is likely to be caused to the opposite party by granting it. In the present case, the applicant cannot claim interim injunction in view of the aforementioned pre-conditions which should be fulfilled before the grant of interim injunction. The applicant in the case before us did not have a prima facie case as not being able to clear the qualifying examination of a university does not amount to violation of Article 14 of the Constitution. It is a fair procedure laid down by the administration in order to admit students who are good in academics. In addition to this, it can in no way be shown that an irreparable injury is being caused to the applicant as he can still apply to other universities and can gain admission in the same. He was not able to qualify in the University merely because of his caliber. He can again give the qualifying examination and gain admission in the University. Also, the balance of convenience is in no way in favour of the University or in other words, the balance of inconvenience is not in favour of the applicant. The applicant is not being at an unfavourable position due the fact that he did not gain admission in the university and no specific benefit is being accrued to the University because of denial of admission to the applicant. Thus, the balance of convenience has not been destroyed in the present case and no specific inconvenience is being caused to the applicant. Thus, in my opinion the application should not be granted an interim injunction as none of the conditions have being fulfilled which are necessary for the grant of interim injunction.

Q:6 Discuss the following: (a) Where the defendant has been proceeded ex-parte but wants to participate in the proceedings on the subsequent date of hearing. (b) Where the defendant has been proceeded ex parte and moves an application under Order IX Rule 7 for setting aside ex parte order. Assigning good cause for his

non appearance and wanting that the clock cap should be put back, so as to enable him to defend the case if he had appeared earlier.

A:6 (a) In such a case, the defendant is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial; only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. The underlying principle is that until the suit is finally decided, the defendant has a right to come in and defend the suit. (b) In deciding whether a suit dismissed for default be restored, what has really to be considered is whether the defendant was really trying to appear on the day fixed. If sufficient cause is shown by the defendant for his non-appearance, reopening is mandatory, but when sufficient cause is not shown, it is directory.12 What is sufficient cause depends upon facts and circumstances of each case and liberal and generous construction should be adopted to advance the cause of justice and restoration should not ordinarily be denied.13 In Chhotalal v. Ambalal Hargovan14, the High Court of Bombay observed that when a party arrives late and finds that his suit or application is dismissed, he is entitled to have his suit or application restored on payment of costs. Where the court has adjourned the hearing of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous nonappearance, the court may hear him upon such terms as it directs as to the costs or otherwise. In that case, the defendant might have the earlier proceedings recalled, set the clock back, and have the suit heard in his presence.

Q:7 A ex parte decree had been passed against the defendant in favour of the plaintiff. The defendant moves an application under Order IX Rule 13 for setting aside ex parte decree on the ground he had not been validly served in accordance with Order V. Decide whether the court would be competent to set aside ex parte decree.

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P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar, AIR 1936 Rang 335 Lakshmi Commercial Bank Ltd. v. Hans Raj, AIR 1981 P&H 228 14 AIR 1925 Bom 423

A:7 An ex parte decree is a decree passed in the absence of the defendant. Where the plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the defendant is duly served, the court may hear the suit ex parte and pass a decree against him. Such a decree is neither null and void nor inoperative but is merely voidable and unless and until it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable and it has all the force of a valid decree. The defendant against whom ex parte decree has been passed may apply for setting it aside. Where there are two or more defendants, any one or more of them may also make such application. This rule requires an application by the defendant to set aside an ex parte decree passed against him if there exists sufficient grounds for it. If the defendant satisfies the court that (i) the summons was not duly served; or (ii) he was prevented by any sufficient cause from appearing when the suit was called out for hearing, the court will set aside the decree passed against him and appoint a day for proceeding with the suit. As provided in Rule 6, the suit may proceed against the defendant only when it is proved by the plaintiff to the satisfaction of the court that the defendant did not appear even thought the summons was duly served. In that case, an ex parte decree may be passed against him. Therefore, if the defendant satisfies the court that the summons was not duly served upon him, the court must set aside the ex parte decree passed against him.