Handout 3 – Introduction to the Code and Stages of a Civil Suit

Code of Civil Procedure

History and Objective behind the enactment of the Code of Civil Procedure 1908

The Code of Civil Procedure (CPC) was enacted in India with the primary objective of
providing a comprehensive set of procedural rules for the conduct of civil suits and
proceedings in the country. The enactment of the CPC served several purposes and
addressed various concerns within the legal system.

The Code of Civil Procedure has undergone amendments over the years to keep pace with
legal developments and societal changes. It was first enacted in the year 1859 as Act No. 8 of
1859. The Code was, thereafter, amended several times in the years 1860, 1861, 1878, 1879,
and 1882. After facing these many amendments, finally, the Code of Civil Procedure was
re-enacted in the year 1908, and it came into force with effect on 1 January 1909 .

Preamble of the Code of Civil Procedure 1908

An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil
Judicature.
WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of
the Courts of Civil Judicature; it is hereby enacted as follows:

Difference between a Code and an Act

In legal terminology, the terms "Act" and "Code" refer to different types of legislative
instruments. An Act is a standalone piece of legislation that addresses a specific area or issue.
It is typically focused on a particular subject matter, and each Act usually deals with specific
provisions related to that subject (For instance, HMA, HSA, HAMA, etc.). A Code, on the other
hand, is a comprehensive and systematic compilation of laws on a particular subject. It tends
to cover a broader range of legal provisions and often consolidates and codifies existing laws
on a specific topic into a single, comprehensive document. (For instance, Uniform Civil Code).
Acts are often more specific and may deal with a particular aspect or area of law. For
example, the Companies Act deals specifically with matters related to the incorporation,
regulation, and dissolution of companies. While the Codes are generally more
comprehensive, attempting to cover an entire field of law. For instance, the Indian Penal
Code is a comprehensive legal code that encompasses a wide range of criminal offenses and
their punishments.

Introduction to the Structure of CPC

The Code contains 158 Sections under various parts and a Schedule which has 51 Orders.
Each Order has several rules.
The Sections provide provisions related to general principles relating to exercise of
jurisdiction and general conduct of civil proceedings whereas the Orders and Rules
prescribe actual procedures that govern civil proceedings in India.

Stages of a Civil Suit

STAGE I – BARS TO THE SUIT

A civil suit starts from the occurrence of a cause of action which gives rise to a right to claim
relief. Before filing any civil suit, it is important to know if it is barred from the jurisdiction
of a civil court on any grounds, in which case the suit may be dismissed. A suit may be
checked for the following bars:
Bar of Section 9: The first step is to analyze the facts of the case in order to check whether
it is a case of ‘civil nature’ as per Section 9 of CPC.
Bar of Order 9 Rule 9: Next step is to check with your client if he filed any suit on the same
grounds in the past in which he might not have appeared causing the suit to be dismissed (in
such case, restoration application may be filed, but new suit by the plaintiff is barred).
Bar of Res Sub Judice, Res Judicata or Constructive Res Judicata: To be checked if the
matter directly and substantially in issue is undergoing decision or has already been decided
or deemed to have been decided as mentioned under Section 10 and 11 of CPC.
Bar of Order II Rule 2: It is to be checked if the claim has been relinquished in a previous
suit on the same cause of action without leave of the court.
Bar of Limitation: To be checked by application of The Limitation Act of 1963.

STAGE II - JURISDICTION
Once it is certain that the matter does not suffer from any kind of bar, the next stage involves
identifying the place of suing in order to institute the suit in an appropriate forum. For this,
the nature of the dispute needs to be analyzed- whether it relates to immovable property,
movable property, torts or if it is a contractual dispute involving an individual or corpor ate.
Sections 16 to 20 are examined for deciding the place of suing.
Once the place to file the suit is identified, it also needs to be checked if the forum being
approached is the court of the lowest grade competent to try it (Section 15). Court of lowest
grade within the chosen territory is the court which is at the lower most level of the hierarchy
of courts competent to try the amount involved or the value of the subject matter in the suit
at hand within the pecuniary limits of its ordinary original civil jurisdiction (Section 6).

STAGE III – PRESENTATION OF PLAINT

Section 26 provides for institution of suits. While instituting a suit by filing a plaint, it is
important to consider rules regarding pleadings as mentioned in Order VI with special
reference to the contents of plaint described under Order VII. Thus, it becomes crucial to
check the dos and don’ts as per the rules contained in these Orders before filing the plaint.
If in case your plaint is filed in the wrong forum, it shall be returned under Order VII Rule
10 or the plaint may also be rejected under Order VII Rule 11, if it is hit by any of the grounds
mentioned therein.
STAGE IV – SUMMONS TO THE DEFENDANT
Where the plaint gets admitted, summons is sent to the defendant under Order V to enter
appearance and answer the claim against him by filing a written statement. Rules of this
order entail various modes of service of summons including substituted service.

STAGE V – APPEARANCE AND NON-APPEARANCE OF PARTIES

When a date for appearance of parties is fixed by the court, several scenarios become likely-
either the defendant or the plaintiff may not appear on the date fixed or both of them may
not appear. Such situations carry separate consequences which are discussed under Order
IX.

STAGE VI – INTERLOCUTORY PROCEEDINGS (OPTIONAL STAGE)

During the course of the case proceedings, the court may pass interim orders to settle any
intervening matter on a temporary basis (till further orders or finality of the suit). Such
orders may be passed under Order XXIV, XXV, XXVI, XXXVIII, XXXIX, XL and XLI.

STAGE VII – WRITTEN STATEMENT

The defendant files his reply to the plaint filed by the plaintiff under Order VIII which is
called written statement. Here, the defendant is required to specifically deny the allegations
made in the plaint or admit them. He may make preliminary objections such as jurisdiction
or certain other pleas or defences such as claiming a set off or making a counterclaim.

STAGE VIII – DISCOVERY AND INSPECTION

If the opponent's case is not clearly established through its pleadings, a party may apply for
discovery and inspection under Order XI in order to compel him to disclose certain
documents or facts. Discovery is of two kinds: discovery of documents and discovery by
interrogatories (set of questions served to the other party in writing). One party may also
inspect documents of the other party with the permission of the court.
Admission (Order XII): Section 58 of Indian Evidence Act lays down that facts admitted need
not be proved. Similarly, if a party admits a certain fact, the court may pass a judgment on
the same as per Rule 6 of Order XII.
Production of Documents (Order XIII): If the documents relied upon in the pleadings have
been attached as copies, then the originals need to be produced before the court before
settlement of issues.

STAGE IX – EXAMINATION OF PARTIES & FRAMING OF ISSUES

Under Order X Rule 2, the court examines the parties orally on the basis of their assertions
and denials with the view to elucidate the matters in controversy by ascertaining how far the
allegations made in the pleadings of one party are admitted or denied by the other.
Issues are framed by the court under Order XIV. Each issue is a matter of controversy
between the parties which is proved and disproved in the hearings during the trial
conducted by the civil court so as to reach a decision on the same.

STAGE X – SUMMONING & ATTENDANCE OF WITNESSES

Now that the issues are framed, each party calls its witness to prove its case. Procedure of
summoning and attendance of witnesses is given under Order XVI

STAGE XI – HEARING OF A SUIT

This is the stage where the trial of the suit begins under (Order XVIII). In the course of these
hearings, the parties and the witnesses give their statements and testimonies subject to the
Indian Evidence Act. This involves examination in chief and cross examination.
At the conclusion of the hearing, arguments take place (orally as well as in writing) in order
to convince the judge about the contentions of each party.

STAGE XII – JUDGMENT

Judgment is pronounced in an open court under Order XX. Decree is drawn up 15 days after
the judgment is pronounced.

STAGE XIII – REFERENCE & CHALLENGES (OPTIONAL)

Under CPC, several mechanisms exist to refer a question for clarity or challenge the decision
of a civil court on different grounds.
Reference: This mechanism can be utilized whenever, during the course of legal
proceedings, a question of law arises with respect to the validity of a statute or its provision.
In such case, a lower court can refer such question to a higher court for opinion under Order
XLVI read with Section 113.
Review: This mechanism can be utilized after the judgment has been pronounced and there
is an error apparent on the face of record or there is an additional evidence procured after
the judgment which could not be obtained earlier even by exercising due diligence. In such
case, review of the judgment by the same court can be applied for under Order XLVII read
with Section 114.
Revision: This process can be utilized particularly in case of non-appealable decisions on
several grounds relating to jurisdictional errors and irregularities as mentioned under
Section 115 for filing a revision petition before a High Court during pendency or after the
decision has been made.
Appeals: Section 96 to 112 and Orders 41 to 45 deal with Appeals. An appeal can be filed
for challenging a court’s order during the pendency of the suit or against its final decision
(decree).

STAGE XIV – EXECUTION PROCEEDINGS (OPTIONAL)

If the need arises, an application may be filed in the court for the enforcement of its decision
(decree) as mentioned under Order XXI. There are various modes of execution of a decree
including arrest and detention, attachment, delivery of possession, etc. The applicant may
specify a preferred mode, or the court may direct an appropriate mode to be used as per the
nature of the relief granted and other factors such as the assets available with the defendant.
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 Jurisdiction Class Handout
I. Meaning of Jurisdiction
The term jurisdiction has not been defined in any legislation. It originates from the words, ‘juris’
and ‘dicto’ or ’dictum’, which translates into a metaphor, “I speak by law”: the judge who is
authorized by law to hear a matter is speaking in the capacity of law. This implie s that a court must
take cognizance of the matter where it is authorized by law (positive duty is imposed). Implying
further that even an omission to exercise jurisdiction where authorized is an error.
Thus, in case of doubt with respect to jurisdiction as to a subject matter, presumption needs to be
made in favor of the jurisdiction and not against it. (For instance, a new law has established
tribunals to deal with disputes relating to Agricultural lands. With regard to a matter before a Civil
Judge, there exists uncertainty if it falls in the category of such disputes. In the absence of an express
or implied bar, this being a suit of civil nature, must be heard by the civil court by virtue of the
presumption/positive obligation). Same principle also extends to territorial jurisdiction (example:
Section 18 of CPC) and pecuniary jurisdiction (example: unliquidated damages in case of a breach
of contract-uncertainty persists regarding the amount (mesne profits, costs, interests, etc.) that the
plaintiff may be entitled to - presumption to be made in favor of jurisdiction unless it is apparent on
the face of it that value of suit is beyond its pecuniary limits: Section 6 of CPC). [ Note: only prima
facie examination required to examine the question of jurisdiction].

Hence, jurisdiction is based on two aspects

 Inherent Lack of Jurisdiction Irregular Exercise of Jurisdiction
Court does not have the authority to hear the Court is otherwise incompetent to grant relief.
subject matter.
Arises from the defect of SMJ. Arises from the defect of PJ or TJ.
Defect is not curable because the court does not Defect is curable because it does not go into the
have the status of 'court' in context of such a roots of the matter (exception: fraud).
matter (it is not a competent forum for that
matter in the eyes of law).
Resultant decree or order is null and void. Decree or order passed in such case is deemed
to be valid.
Objections with respect to inherent lack of Objections may be raised only at the stage of
jurisdiction can be raised at any stage of the suit. trial, at the earliest possible opportunity (before
It may be challenged in collateral proceedings or the settlement of issues) - deemed to be waived
even a new suit may be filed to set aside such a off, if not raised.
decree.

*Collateral proceedings refer to legal actions that are secondary or ancillary to the main legal case.
These proceedings typically address issues related to the main case, such as challenges to the validity
of a decree or its execution through a separate proceeding. If a party believes that the execution of a
judgment is unjust or improper, they may initiate a collateral proceeding to contest the execution
process rather than directly challenging the underlying judgment. This allows them to address specific
issues related to enforcement without reopening the entire case. They are separate from appeals and
focus on collateral matters that may impact the fairness or constitutionality of the original proceedings.

Principle of Kompetenz Kompetenz: Who decides jurisdiction?

Kompetenz Kompetenz is a principle that arose in the Federal Constitutional Court of Germany. It
translates to mean that any forum (judicial/quasi-judicial/administrative) is competent to decide
the question of its own competence (jurisdiction). Not only competent but bound to decide its
jurisdiction on a particular matter before proceeding on its merits. Under Section 21 of CPC,
objections to the jurisdiction of a civil court are heard by the same court whose jurisdiction is
objected to.

II. Jurisdiction and Consent: Can jurisdiction be conferred or taken away by way of an
agreement?

As per Section 28* of Indian Contract Act 1872, agreement ousting the jurisdiction of a
jurisdictional court is null and void. As per Section 23* of the same statute, the agreement
conferring jurisdiction to a non-jurisdictional court is also invalid.
*Section 28 - Agreements in restraint of legal proceedings are void
*Section 23 - Agreements with unlawful object or consideration are void

If the parties bind themselves to one court out of all others having concurrent jurisdiction by way
of a forum selection clause in the agreement, it does not oust the jurisdiction of a jurisdictional court
but puts a bar on the parties to move to such court in case of dispute by virtue of the principle of
estoppel by agreement.
*Estoppel by agreement – principle that prevents a party from making an argument in defence or asserting a right
that contradicts with what they previously agreed through a valid and legally binding agreement.

Hence, it is a settled principle of law that the parties cannot confer or oust jurisdiction of a court
that is under the ambit of the Civil Procedure Code, 1908 and lacks natural/available jurisdiction.
This principle does not apply when parties agree to submit to the jurisdiction of a foreign court, be
it exclusive or non-exclusive.
Choice of other forums for resolving civil/commercial disputes arising out of contractual
relationships
‘Choice of forum’ clause in a contract conferring jurisdiction to a foreign court which applies foreign
law or an Arbitral Tribunal for adjudication of dispute is not a violation of contractual legal
principles. Such agreements serve as an exception to the doctrine of nexus as the purpose is to
achieve neutrality by choice of an independent forum. Therefore, in case of international contractual
disputes where parties choose to resolve through arbitration or choose a foreign seat and
procedure, it is valid in the light international law principles.
Additionally, in the context of arbitration, parties typically confer jurisdiction upon arbitral
tribunals rather than civil courts. When parties agree to arbitrate a dispute, they are essentially
granting jurisdiction to the arbitral tribunal to resolve the dispute instead of the courts. Hence, such
a clause is not considered to be invalid. However, if there are issues related to the enforcement or
challenge of an arbitration agreement or award, civil courts may get involved to determine
jurisdictional and other contractual questions or to enforce the arbitral process. Forum selection
clauses are considered paramount in such cases too for giving effect to the binding nature of the
contract.
Jurisdictional defect based on technical aspects such as territorial and pecuniary errors have
to be raised before framing of issues (exception: where such error is not unintended)
Instance: If parties agree with each other to confer jurisdiction to a non-jurisdictional court by
incorporating an exclusive jurisdiction clause in their agreement, and they go to such court when
the dispute under that agreement arises and obtain a decree; and later if the court finds out that the
parties had an ulterior motive to fulfill, and had connived with the malafide intention to abuse the
provisions of law and commit fraud on the court, it can declare the decree obtained through such
means to be null and void.
Additionally, the court may impose penalties or pass further orders against the parties involved for
their misconduct including dismissal of suit on grounds of vexatious litigation. The pecuniary or
territorial defect in such a case will not be deemed to have been cured or waived after framing of
issues as it is not an unintended error arising from a technical mistake. (Principle: A defect of
jurisdiction strikes at the very authority of the court to pass any decree , and such a defect
cannot be cured even by consent of parties – Kiran Singh v. Chaman Paswan).
Generally, if fraud is identified during the pendency of the suit, the effect of such defect on the merits
of the case needs to be ruled out before dismissing the matter on those grounds or proceeding with
it on merits.
Hence, the intent from which the error originates and the effect of such error on the merits
become material.
Consider the following situation in case of territorial jurisdiction clause under a contract:
If parties have a specific agreement to resolve disputes in the civil court of a specific territorial
jurisdiction, and one party initiates legal proceedings in a different court, the other party can raise
an objection based on the agreement. This objection would typically be raised at the outset of the
proceedings, asserting that the case cannot be proceeded with before such court due to prior
agreement. The court where the case is incorrectly filed may then either dismiss the case for lack of
jurisdiction or transfer it to the appropriate court specified in the agreement depending on the
nature of the defect (territorial, pecuniary or subject matter).
What happens if such objection is not taken?
If a party fails to raise an objection based on the prior agreement regarding jurisdiction at the outset
of the proceedings, and in every case, before the settlement of issues, such party may be deemed to
have waived its right to object. In such a situation, the court where the case was incorrectly filed
may proceed to decide the case on merits despite the existence of the prior agreement preferring
jurisdiction of another court. The resultant decree will be valid and binding on the parties. This
consequence is subject to the due diligence test and interest of justice under Section 151 of CPC.

Swastik Gases v. IOCL, 2013 (9) SCC 32

Facts: Swastik Gases was IOCL’s Consignment agent for marketing lubricants and petroleum
products at Jaipur. Disputes arose between them as huge stock of lubricants could not be sold, and
Swastik Gases claimed refund. Failing to resolve amicably, Swastik Gases mo ved to Rajasthan High
Court to which IOCL objected pointing to the clause in agreement which stated, “the agreement shall
be subject to the jurisdiction of courts in Kolkata”. The objection was allowed. An SLP to the
Supreme Court was then filed from this order by Swastik Gases.

Issue: Whether Kolkata courts have exclusive jurisdiction to resolve disputes between the parties
by virtue of the clause in their agreement?

Judgment: It was held that the effect of the jurisdiction clause provides that the intention of the
parties- by having this clause in the agreement- is clear and unambiguous that the courts at Kolkata
shall have jurisdiction which means that the courts at Kolkata alone shall have jurisdiction. In the
clause, there is nothing to indicate to the contrary, therefore, an inference may be drawn that the
parties intended to exclude all other courts. By making a provision that the agreement is subject to
the jurisdiction of the courts at Kolkata, the parties have impliedly excluded the jurisdiction of all
other courts. Hence, only the courts in Kolkata had jurisdiction to entertain the disputes between
the parties.

III. Which party has the initial burden of proof with respect to jurisdiction?
Initial burden – plaintiff
Jurisdiction clause is to be inserted in the plaint as per the requirements of Order 7 Rule 1 of CPC.
In case of default, the plaintiff’s plaint is returned for correction or rejected by an order depending
upon the nature of jurisdictional defect.
Subsequent burden – defendant
In case the defendant objects to the jurisdiction chosen by the plaintiff, the burden of proving that
such jurisdiction is invalid is on the defendant.

IV. At which point in the stages of a civil suit, jurisdiction is calculated?

Jurisdiction (whether pecuniary, territorial or subject matter) is calculated at the time of institution
of the suit. Subsequent variations in jurisdiction by law may take away court’s authority to decide
the matter which calls for transfer of such suit to the right forum. If such variation is not taken into
consideration, the decree of such court may be invalid if the merits of the case are affected, leading
to grave injustice to any party (ref. Section 21 and 99). For instance, a new law is enacted which
creates new forums/tribunals for hearing a specific subject of suits; suits filed before the enactment
of such law shall continue in civil courts (because their jurisdiction was calculated at the time of
institution of such suit) unless new law requires the ongoing cases to be transferred to the newly
established tribunals. (In case of doubt or if the new law is silent on this question, presumption of
jurisdiction shall lie in the favor of civil courts in the light of the positive obligation imposed by law to
exercise jurisdiction over all suits of civil nature – principle is enshrined in Section 9 of CPC)

V. Objection to Jurisdiction (Section 21 and 21A)

Objection as to Territorial Jurisdiction - Section 21(1)

No objection as to the place of suing shall be allowed by any appellate or Revisional Court unless:
• such objection was taken in the Court of first instance
• at the earliest possible opportunity, and in all cases where issues are settled , at or before
such settlement,
• and unless there has been a consequent failure of justice.

ALL 3 CONDITIONS MUST CO-EXIST.

Basically, objection as to TJ may be waived if not taken subject to these.
For instance, in a suit, A v. B, B had objections to TJ of the Court, but he participated in the
proceedings/trial without raising any objections. Decree is passed in favour of A. B raises
objection of TJ in Appellate court. Will he be allowed?
Objection as to Pecuniary Jurisdiction – Section 21(2)

No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction
shall be allowed by any Appellate or Revisional Court unless:
• such objection was taken in the Court of first instance
• at the earliest possible opportunity, and in all cases where issues are settled, at or before
such settlement,
• and unless there has been a consequent failure of justice.

ALL 3 CONDITIONS MUST CO-EXIST.

For instance, A files a suit against B to recover possession of a house. He values the plaint at Rs
8000. The suit is filed in Court C with jurisdiction upto Rs 10,000. B finds out that the market value
of the house is Rs 12,000. B does not object to jurisdiction of court and decree is passed in favor of
A. B now wants to take objection about PJ of C. Can he?
Objection in execution proceedings – Section 21(3)
This clause was added after amendment of 1976. To avoid delay in execution of a decree, the rule
under 21 is extended to execution proceedings:

“No objection as to the competence of the executing Court with reference to the local limits of its
jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken
in the executing Court at the earliest possible opportunity, and unless there has been a consequent
failure of justice.”

Bar of Suit – Section 21A

In the example under Section 21(2), B cannot file objection on PJ. But what if he files a separate new
suit to challenge the decision?
There were conflicting views on this point till the Amendment of 1976.
Now, no substantive suit can be filed to set aside the decree of the Court on an objection as to place
of suing.

“Bar on suit to set aside decree on objection as to place of suing — No suit shall lie challenging
the validity of a decree passed in a former suit between the same parties, or between the parties
under whom they or any of them claim, litigating under the same title, on any ground based on an
objection as to the place of suing. “

Shortcoming of this provision - It does not extend to PJ

However, case laws mention that this rule will apply to PJ pro tanto.

Hiralal v. Kalinath 962 AIR 199, 1962 SCR (2) 747

This judgment leads to liberal interpretation of the meaning of ‘waiver’ of right to object to
jurisdiction under Section 21 of CPC. It not only includes an omission to raise objection but also a
positive act on the part of the party to the suit exhibiting consent/acceptance to jurisdiction.

Facts: Hiralal wanted to buy shares of a company at Agra. In order to negotiate the deal, he took
services of an agent, Kalinath. However, he didn’t pay his commission.

Procedural history: Kalinath filed suit for recovery of his commission at the High Court of Bombay.
Hiralal in his written statement argued that the suit filed was outside the territorial jurisdiction of
Bombay because the entire cause of action had arisen at Agra. Matter was referred to arbitration by
the court. Arbitrator gave award in favour of Kalinath. It was challenged to be set aside in the
Bombay High Court by Hiralal on certain grounds. The court found that there was no defect in the
award. Petition was frivolous, so it was dismissed with costs. Hiralal's appeal was also dismissed by
the division bench and award was incorporated into a decree. The decree was transferred to District
Judge of Agra for execution. Hiralal raised the same objection, quoting Section 47 read with Section
151 of CPC. His objection was again dismissed. And then he appealed to Allahabad High Court, which
also dismissed his appeal. And now he has appealed to the Supreme Court.

Please read the highlighted portion of the judgment for ratio.

Kiran Singh v. Chaman Paswan

This case relates to the defect of both territorial and pecuniary jurisdiction, but the following
discussion is limited to pecuniary defect.
Level I (Institution of Suit) - KS filed a suit in the court of subordinate judge against CP for
trespassing into their lands and carrying away the crops. He demanded relief of ejectment, mesne
profits and possession. Court held that CP was in possession of that land for more than 12 years and
thereby had acquired occupancy rights in the tenements.
Level II (First Appeal) - KS appealed to the District Judge who dismissed the appeal agreeing with
the subordinate judge.
Level III (Second Appeal) - In the second appeal to the High Court, the Stamp Reporter objected to
the valuation of the suit (originally valued at 2950, which on enquiry was found to be 9980). KS paid
additional court fee and pleaded that on revised valuation, appeal from su bordinate court would
not lie to the District Judge but to the High Court and accordingly should be heard as first appeal
ignoring the jurisdiction of District Court.
Important Paragraphs of the judgment:
Para 5 & 6: Contention
Para 7: Reasoning (last para)
Para 14 & 15: meaning of prejudice (as contained in Section 11 of Suits Valuation Act and Sectio n
21 of CPC)
Para 17: Holding

VI. Kinds of Jurisdiction:

a. Subject matter jurisdiction (Section 9)

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

Conditions:

• The suit must be of civil nature

• The cognizance of such a suit should not have been expressly or impliedly barred
Suit of Civil Nature
In order to analyse the scope of the term ‘suits of civil nature’, we can possibly think of three kinds
of disputes.

Suit for a non-civil right cannot be instituted in a civil court because the dispute does not relate to
any right originating from and protected by a written and codified authority under civil law (eg:
constitution, legislations, etc.) or common law principles (eg: tort law, equity, etc.).

Primary question is the right on which the relief is based; the one which the court needs to
determine in order to grant a remedy.
Ancillary question is the one which needs to be decided in order to arrive at a decision on the
primary question (the one on which the primary question rests) or which is incidental to the
primary dispute in question (gets incidentally determined while deciding the primary question).
Consider Ayodhya Dispute Case:
Primary question: ownership of land and associated title rights
Ancillary question: beliefs of two communities and historical significance of the site
In the Ayodhya case, the court primarily focused on adjudicating the dispute over the ownership of
the land and the title rights associated with it. The court did not delve into theological or religious
questions concerning the beliefs or historical significance of the site. Instead, the court's decision
was based on civil law principles and the evidence presented by the parties regarding ownership,
possession, and legal rights to the disputed land. While the dispute had significant religious and
historical dimensions, the court's decision primarily addressed the legal aspects of the case rather
than theological or religious questions.
Overall, the Supreme Court's decision in the Ayodhya case was based on a careful consideration of
legal, historical, and constitutional principles, while also recognizing the religious significance of the
disputed site for Hindus and Muslims alike.
Consider the following two scenarios:
During election of President of Indian National Congress (INC) between Shashi Tharoor and
Mallikarjun Kharge, dispute arose in relation to the fairness of conduct of polling process, counting
of votes and ineligible voters. Can Shashi Tharoor file a civil suit alleging these irregularities?
Points to consider: Nature of right violated. Primary question to be determined in order to grant
remedy.
Answer: No. The issue of fairness of the process of election is purely political and in order to provide
a resolution, this issue can only be inquired into by the High Command of the concerned political
party who has drafted the rules and regulations for the election of its President. No such civil right
is granted by any authority (statute, regulation, etc.) under civil or common law principles and
hence, no remedy can be provided by the civil courts in this case.
Alternatively, consider that a customary divorce took place between two muslim parties. Husband
died. Wife claimed that the customary divorce wasn’t valid as per their local customs. Hence, she is
the widow of her deceased husband and now entitled to his property as an L R as per the law of
succession. Other LRs challenge maintainability of the suit before the civil court on the grounds that
it is of religious nature and ought to be decided by their customary head. Is the suit maintainable?
Points to consider: Nature of right violated. Primary question to be determined in order to grant
remedy.
Answer: Yes. In order to decide the right of wife in her husband’s property, the court needs to
decide whether the status of their marriage is valid, or it has been dissolved. And in order to decide
the same, the court will have to decide whether customary divorce that took place between the
parties was recognized in their customs. Therefore, it is a suit of civil nature cognizable by a civil
court [civil right (in husband’s property) being the dominant question to be decided for granting
relief, ancillary question being the status of marriage which is to be confirmed as per the customs ].
Answer: Primary question in this case, which is right to chairmanship and remuneration originates
from an authority under civil law and hence, suit before a civil court is open. Even if the ancillary
question, which is, fair count of votes as per the rules established by INC for election of its President
has to be dealt with by the civil court in order to decide the primary question. (Court may order the
party to examine it and submit report to the satisfaction of the court in which case, it is n ot barred
from examining the fairness of the report in line with the party rules.)

Hence, civil rights generally do not include questions of political or religious nature. Therefore, if
principal question is about CASTE or RELIGION then it is not of CIVIL NATURE and will fall outside
the purview of civil courts. BUT if the principal question is of a civil nature (example division of a
property) and the adjudication INCIDENTALLY involves determination of a question of religion ,
caste or politics, it does not cease to be of civil nature and jurisdiction of civil court is not barred.
THIS HAS BEEN CLARIFIED THROUGH EXPLANATION 1 & 2 OF SECTION 9.

[Explanation I].—A suit in which the right to property or to an office is contested is a suit of a civil
nature, notwithstanding that such right may depend entirely on the decision of questions as to
religious rites or ceremonies.
[Explanation II].—For the purposes of this section, it is immaterial whether or not any fees are
attached to the office referred to in Explanation I or whether or not such office is attached to a
particular place.

A suit in which the right to property or to an office is contested is a suit of civil nature
REGARDLESS OF
the right depending upon decision about a religious rite or ceremony
Whether the particular office has any associated fee or is attached to a place
Express or Implied bar on cognizance by civil court
Suits EXPRESSLY barred:
When barred by a law/statute; Legislature competent to do it unless violating the Constitution
Example: Arbitration
GENERAL RULE OF INTERPRETATION- PRESUMPTION IN FAVOUR OF JURISDICTION
Interpret liberally in favour of jurisdiction whereas provision for exclusion should be strictly
construed.
Examples: Matters entrusted with Tribunals- Industrial Tribunal, Income tax Tribunal, NCLT,
MACT OR Medical council, BCI etc.
BUT if remedy provided by statute/Tribunal is not enough, then jurisdiction of CIVIL COURT is
open. (Dhulabhai v. State of M.P., 1968)
Suits IMPLIEDLY barred:
Suit is said to be impliedly barred when it is barred by general principles of law
Example: When a statute gives a specific remedy, it impliedly restricts interference of other
remedies by necessary implication of its scheme. Impeachment of the President of India – a suit in
this regard is impliedly barred by the process mentioned in the constitution.
Principles of law impliedly barred (instances):

• Suit for recovery of costs in criminal prosecution

 • Enforcement of a contract hit by Section 23 of Indian Contract Act
• Action against any Judge for actions done in his capacity as a Judge

Horil v. Keshav & Anr (2012)5 SCC 163

Facts: K filed a suit before Assistant Collector under U.P. Zamindari Abolition and Land Reforms Act
and made H’s father a party. A compromise decree was passed by the Assistant Collector on the
basis of a petition filed by the parties.
Procedural history: H sought declaration from the Munsif court that the decree should have been
cancelled, declared void ab initio, inoperative and not binding on him. He alleged that the
compromise petition filed in the suit had fake signatures of his father and when the compromise
decree was passed on the basis of such petition by the Assistant Collector, no notice was served to
his father, he wasn’t aware of such proceedings, and he never appeared before the Assistant
Collector. Infact, his father was not even alive in 1979 when the decree was passed. K questioned
the maintainability of the suit on the grounds that it is related to agricultural lands and could only
be tried by revenue authorities. Court decided in favor of K to which H filed an appeal to ADJ.
Judgment: By ADJ – para 4. By Allahabad High Court – para 5. By Supreme Court – para 7 onwards.
Ratio: Based on these, the Supreme court held that tribunals are courts of limited jurisdiction and
lack the competency to deal with questions of wider ambit which fall beyond the scope of the statute
establishing them.
Read the highlighted portion of the judgment.

Most. Rev. P.M.A. Metropolitan v. Moran Mar Marthoma & Anr 1995 SCC Supl. (4) 286

Overview:

Paragraph 33 of the judgment lays down the principle upheld in the case. Additionally, the court
opined on issues like the jurisdiction of civil courts to entertain suits for violation of fundamental
rights guaranteed under Articles 25 and 26 of the Constitution of India, the wider interpretation of
the expression 'civil nature' in Section 9 of the Civil Procedure Code, and the findings that become
final and operate as res judicata.

Facts:
The dispute was relating to a church property between two christian groups (Protestants and
Catholics) giving rise to the following issues:
 • It was claimed that various persons said to be ordained as metropolitans have no right to act
as such and priest ordained in turn by them would equally have no right to act as such, all
these being usurpers.
• The office of metropolitan in the Malankara Church has, with it, attached legal obligations
for the non-performance of which sanctions or penalties are provided is clear both from the
canonical law as well as the Constitution.
• Relief against the interference with the administration of Chruch Properties.
• The claim founded on allegations against wrong persons exercising the functions by those
who have been wrongly designated as metropolitans and are interfering with the right to
worship in Churches.
Issue:
Whether the issue that Malankara Church was governed in its administration by the Constitution of
Malankara Church with reference to the Constitution passed in M.D. Seminary meeting in 1934,
which dealt with religious and ecclesiastical aspects of the Church, could not be adjudicated upon
by the civil courts? (Whether this is a question about religious right (non-civil) and therefore, not to
be entertained by civil courts?)

Judgment on this issue:

In this judgment, Section 9 (with special focus on Explanation I) was interpreted in letter and spirit.
It was held that the words ‘civil nature’ are wider than the words ‘civil proceedings’. The section
would, therefore, be available in every case where the dispute has the characteristic of affecting
one’s rights which are not only civil but of civil nature.

The court decided that Section 9 of the Code of Civil Procedure gives the civil courts jurisdiction to
entertain suits of a civil nature, including suits related to religious such as enforcement of rights
related to worship, status, office, or property, even if they depend on decisions about religious rites
or ceremonies.

It was clarified that the civil courts have the authority to determine the validity of excommunication
and to protect the rights of individuals in matters of mixed spiritual and temporal character. It was
emphasized that the right to religion is a fundamental right guaranteed by the Constitution, and any
interference with this right can be challenged in a court of law. Therefore, the suit filed by the
respondent regarding religious rights was deemed maintainable under Section 9 of the Code of Civil
Procedure. The court held that Section 9 is very wide and extends to religious matters which have
civil consequences. The expression "civil nature" used in Section 9 is wider than civil proceedings
and includes any religious dispute that has civil consequences. Therefore, the civil courts have
jurisdiction to entertain suits for violation of fundamental rights guaranteed under Articles 25 and
26 of the Constitution of India and suits related to religious matters.
Crux: If a religion makes its own Constitution or rules, the civil courts cannot interfere with it so
long that it is not violative of the right to freedom of religion which includes right to worship, enter
a temple, etc. Such questions may require the court to probe into the religious practices, customs,
usages, etc. and that will not make such questions of purely religious significance to be carried out
from the jurisidiction of civil courts and left with the religious heads to decide if such questions carry
civil consequence (intent behind Explanation I to Section 9 explained).

Unlike England, the Churches in India have not been accorded any authority by way of a statute or
common law principles to exercise jurisdiction by applying ecclesiastical law. (Para 29 of the
judgment).

Dhulabhai v. State of M.P.. 1968 (3) SCR 662

This case is related to a taxation matter, but para 35 of the judgment given by the Constitution bench
on this case greatly discusses the meaning and scope of the words “express and implied bar” in
terms of the following principles for exclusion of subject matter jurisdiction of civil courts:

1. Where the statute gives finality to the orders of the special Tribunals, the civil courts’
jurisdiction must be held to be excluded.
2. Where there is an express bar of the jurisdiction of the court, an examination of the scheme
of a particular Act to find the adequacy or sufficiency of the remedies provided may be
relevant.
3. Challenge to provisions of a particular act as ultra vires cannot be brought before Tribunals
constituted under that Act.
4. When a provision is declared unconstitutional or the constitutionality of any provision is to
be challenged, a suit is open.
b. Pecuniary jurisdiction (Section 6 and 15)
Section 6:

Pecuniary jurisdiction - Save in so far as is otherwise expressly provided, nothing herein

contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-
matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

Section 15:

Court in which suits to be instituted— “Every suit shall be instituted in the Court of the lowest
grade competent to try it.”

It is a rule of procedure and does not substantially nullify jurisdiction of the higher court. The
purpose is only to systematise the burden of cases among lower and higher courts.
Decree passed by Court of a higher grade cannot be said to be without jurisdiction. It is merely an
irregularity (Revisit consequences in Section 99 + effect of the defect of pecuniary jurisdiction).
 Mode of identifying Valuation of Suit and procedure to be followed:

• Prima facie- Plaintiff’s valuation of the suit (amount involved)

• Once this establishes the jurisdiction of the Court
• Then the amount finally decreed by the Court can be even more than the limit of
jurisdiction
Example:
Pecuniary Jurisdiction of lowest Court is Rs 10,000 and amount claimed is Rs 8,000. Judge finds
out that damages to be paid is Rs 15,000. Can this decree be given???
Case law: Kiran Singh v. Chaman Paswan AIR 1954 SC 340

Overvaluation or Undervaluation of Suit:

Forum shopping refers to the practice of strategically choosing a particular jurisdiction for filing a
lawsuit based on the belief that it will yield a favorable outcome. This may involve selecting a court
known for being sympathetic to certain types of cases, having more favorable procedural rules, or
where the law is more advantageous to the party's position.
Forum shopping can be done to gain a tactical advantage, such as by seeking a jurisdiction where
damages awards are typically higher or where the legal process may be quicker. However, it can
also be viewed as an abuse of the legal system, as it may lead to inconsistent judgments and
undermine the principle of impartial justice.
Courts may take measures to prevent forum shopping, such as enforcing forum selection clauses in
contracts or dismissing cases that are filed solely to exploit differences in legal rules between
jurisdictions.

c. Territorial jurisdiction (Section 16 to 20)

Immovable Property (Section 16 to 18)
Section 16:
Suits to be instituted where subject-matter situate— Subject to the pecuniary or other limitations
prescribed by any law, suits—
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable
property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong (Torts) to immovable property
shall be instituted in the Court within the local limits of whose jurisdiction the property is
situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property
held by or on behalf of the defendant, may where the relief sought can be entirely obtained through
his personal obedience be instituted either in the Court within the local limits of whose jurisdiction
the property is situate, or in the Court within the local limits of whose jurisdiction the defendant
actually and voluntarily resides, or carries on business, or personally works for gain.
Section 17:
Suits for immovable property situate within jurisdiction of different Courts — Where a suit is to
obtain relief respecting, or compensation for wrong to, immovable property situate within the
jurisdiction of different Court, the suit my be instituted in any Court within the local limits of
whose jurisdiction any portion of the property is situate:
Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable
by such Court.
Section 18:
Place of institution of suit where local limits of jurisdiction of Courts are uncertain — (1) Where it is
alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any
immovable property is situate, any one of those Courts may, if satisfied that there is ground for the
alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and
dispose of any suit relating to that property, and its decree in the suit shall have the same effect as
if the property were situate within the local limits of its jurisdiction :
Provided that the suit is one with respect to which the Court is competent as regards the nature and
value of the suit to exercise jurisdiction.
Wrongful Act (tort) against a person or involving a movable property
Section 19:
Where a suit is for compensation for wrong done to the person or to movable property , suit may
be INSTITUTED
Either at the place where wrong is committed
OR
Where the Defendant resides/carries on business/personally works for gain
Place where the wrong is committed

• Wrong may constitute of a series of acts

• And they may have taken place at different places
• Wrong may be committed at one place and consequences may ensue at another place
• Suit may be instituted at either of these places at the option of the Plaintiff
• CAUSE OF ACTION IS A BUNDLE OF FACTS
Other suits..... (Residuary Clause)
Section 20:
Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of
whose jurisdiction—
(a) the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or personally
works for gain; or
(b) any of the defendants, where there are more than one, at the time of the commencement of the
suit actually and voluntarily resides, or carries on business, or personally works for gain, provided
that in such case either the leave of the Court is given, or the defendants who do not reside, or carry
on business, or personally work for gain, as aforesaid, acquiesce in such institution; or
(c) the cause of action, wholly or in part, arises.

Khandesh Spinning & Weaving Mills v. Moolji Jaitha & Co. 1948(50) Bom LR 49
Facts: Khandesh Mills, incorporated in Bombay, had certain land in Jalgaon city of Maharashtra.
Moolji Jaitha firm was the managing agent of Khandesh Mills which also had its principal office in
Bombay.

During the course of its employment, Moolji purchased certain lands in Jalgaon in their own name,
but allegedly with the funds belonging to Khandesh Co. It was also alleged that Moolji firm
fraudulently charged double commission for the yarn and misappropriated company’s accounts.
Khandesh Mills moved to Bombay High Court with the prayer for:

Declaration of title to the property purchased by Mooji Co. in Jalgaon with the funds of
Khandesh Mills &;

Moolji firm be asked to produce an account of the management of Khandesh Mills’ affairs
from the commencement of their agency to its termination.

Issue: The question before the Bombay High Court was whether it is an appropriate forum to
assume jurisdiction with respect to an immovable property situated outside its jurisdiction?

Judgment: It was held that the suit was brought by a principal against his agent for investigation
into the affairs of the agency. The leading purpose was to charge the defendants for various acts of
misconduct. Plaintiff’s prayer for transfer of the lands bought by the defendant in Jalgaon to its own
name was not an independent claim relating to the title to land but was tied up to the questions
relating to the defendant’s agency as it was alleged that the defendants acquired the lands out of the
funds belonging to the plaintiff. Thus, there was an equity of personal nature between the parties
arising out of the contract of agency, for which, by virtue of the proviso to Section 16 of CPC, the
Court could act in personam upon the conscience of the defendants who were within the Court’s
jurisdiction. Hence, the Bombay High Court could exercise jurisdiction over the matter.

Question: Read the judgment and find out what test the court has come up with in this case and
identify the element of equity from the facts as interpreted by the court.

Adcon Electronics Pvt. Ltd vs Daulat And Anr AIR 2001 SC 3712

The appellant (Adcon Electronics) agreed to sell an immovable property located in Indore to the
respondent (Daulat) for consideration. Due to non-fulfillment of the agreement, the respondent
filed a suit in Bombay high court for declaration (of his rights under the contract) and specific
performance under clause 12 of Letters Patent. The appellant objected to the jurisdiction of
Bombay; it was dismissed. Thereafter, he challenged it in Supreme Court by way of an SLP.
The court analyzed the definition of ‘suit for land’ in the light of clause 12 of Letters Patent (same
principle applies to Section 16, CPC).

Read the highlighted portion of the judgment to understand the ratio.

Questions to consider: Why did the respondent invoke clause 12 of Letters Patent of Bombay for
filing suit for declaration and specific performance?

Facts to consider: Suit for declaration is filed under Section 34 of SRA, 1963.

Harshad Chimmanlal Modi v. DLF Universal, 2005 (7) SCC 791

Facts: Mr. Modi entered into a “plot buyer agreement” with DLF for the construction of a house in
Gurgaon. Contract was signed in Delhi where DLF also had its head office. Under the contract, parties
had submitted to the jurisdiction of Delhi. After Modi had made certain installments towards the
payment, DLF unilaterally terminated the agreement.

Procedural History: In 1988, Modi filed the suit in the Delhi court for specific performance of
contract. DLF, in its written statement, disputed the jurisdiction of Delhi court by virtue of Section
16 of CPC, because the property was situated in Gurgaon. Delhi court agreed to the objection of DLF
and returned the plaint. Modi aggrieved by this, moved to the Delhi high court in appeal, but failed.
He then appealed before the Supreme Court by special leave where the following arguments were
placed.

Issue: The question was whether Delhi Court had jurisdiction as per Section 20, because the
question related to specific performance of the contract? Or whether Section 16 will be considered
to decide the jurisdiction as it was the question of immovable property?

Judgment: It was held that neither the Proviso to Section 16 would get attracted nor Section 20
(residuary provision) would apply because even though the relief sought was ‘specific performance
of contract’, the contract was respecting an immovable property and specific performance under
the same required the defendant to execute sale deed in favor of plaintiff and to deliver possession
to him. Therefore, the question was related to the right or interest in such property which was
covered by Section 16(d) CPC; thus, the matter ought to be decided by the Gurgaon courts, where
the property is situated and not the Delhi courts.

VII. Res Sub Judice

Section 10:

Stay of suit— 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.
Explanation—The pendency of a suit in a foreign Court does not preclude the Courts in India from
trying a suit founded on the same cause of action.

Conditions:

• 2 suits, one previously and one subsequently instituted.

• The matter in issue in the subsequent suit must be directly and substantially in issue in the
previous suit
• Both suits must be between same parties or their representative
• The pending suit must be in the same court (where subsequent suit is filed) or in any other
court in India (not foreign court)
• The court in which the previous suit is filed must have the jurisdiction to grant the relief
claimed in the subsequent suit.
• Parties must be litigating under the same title.
Nature & Scope:

• Rule applies to trial of suit and not institution thereof.

• Also does not stop Court from passing interim orders ex. Injunction.
• It applies to Revisions and appeals too.
• If conditions are fulfilled, suit is stayed, not dismissed.
Object:

• Prevent courts of concurrent jurisdiction from simultaneously entertaining and

adjudicating w.r.t same CoA and relief.
• One plaintiff = one litigation.
• Avoidance of two contradictory verdicts w.r.t same CoA.
• Saving defendant from multiple litigation.
• Gives effect to the rule of RJ.
Rule of Res Sub Judice:

• Mandatory rule, no discretion left with the court

• Subject matter in issue must be SAME and mere common grounds is not sufficient
• Suit pending in foreign court does not bar the power of an Indian court to try the suit.
• If all conditions are not satisfied, court can still stay proceedings in the interest of justice
under Section 151 of the CPC.
• RSJ can be waived by agreement between the parties (the decision of subsequent suit cannot
be challenged - estoppel.)
Test of Res Sub Judice:
Whether the decision in the previously instituted suit would operate as Res Judicata in the
subsequent suit.
If it is, then RSJ will apply and the subsequent suit proceedings must be stayed.

This has been laid down in the following case:

Aspi Jal v Khusboo Rustom (2013) 4 SCC 333

Facts/Procedural history: In 2004, Aspi Jal filed two suits for eviction of tenant Khushboo in the
small causes court on two different grounds under Tenancy laws of Bombay. One for bonafide
requirement, and the other for non-usage of property by tenant for several years. During the
pendency of both, Aspi filed another suit in the same court in 2010 on the ground of non -usage of
property by tenant for last 6 months. The suit was stayed by the court under Section 10 stating that
the same matter was already subjudice. Bombay high court upheld the same order, and thus Aspi
moved to Supreme court in appeal.

Issue: Whether the matter in issue in the third suit is directly and substantially the same as the
matter in previous suit?

Judgment: The test for applicability of Section 10 is whether on a final decision being reached on a
previously instituted suit, such decision would operate as Res Judicata in the subsequent suit.
Although the relief claimed by the plaintiff is the same i.e. eviction of her tenant, but the grounds for
claiming the same are different. The cause of action giving rise to such claims is also different
because the timeline is changed, and the ground of non-user is for different periods. Hence, the issue
is not directly and substantially the same and both the suits can parallelly continue before the same
judge.

Indian Bank v. Maharashtra State Co-Operative Marketing Federation Ltd (1985) 5 SCC 69
(Applicability of the bar of Section 10 on Summary Suits)

Facts: Maharashtra State Co-Operative Marketing Federation applied to open an irrevocable Letter
of Credit with the Indian Bank in favor of a Rice Mill. As per the agreement, Bank was to pay the Rice
Mill on behalf of the Federation.

Procedural history: Bank filed a summary suit in Bombay High Court for recovery of money under
the Letter of Credit against the Federation. The Federation pursued to stay the summary suit as a
suit by the Federation was already pending against the bank for recovery of money.

Issue: Whether summary suit is hit by application of Section 10 of CPC?

Judgment: The terminology used in Section 10 is ‘trial of a suit’ and the legislative intent behind the
concept of summary suit is swift resolution of a matter. Whether the term ‘suit’ used in Section 10
is to be given a strict or liberal interpretation is to be seen in the context of the proceeding to which
it is intended to be applied. If the objective of Section 10 and the proceeding does not align, Res
Subjudice will not apply.

VIII. Res Judicata & Constructive Res Judicata

Res Judicata – Estoppel by Judgment

• Rule of conclusiveness of a judgment.

• Once a matter is decided by competent court, it cannot be permitted to reopen .
• Res means subject matter or dispute and Judicata means adjudged/decided. RJ-A matter
adjudged/dispute decided.
• ROMAN LAW:” ex capito res judicata” - One suit and one decision is enough for a single
dispute.
Section 11:

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

And VIII explanations. MANDATORY RULE.

Object and Basis:
Rule of RJ is based on the following 3 legal maxims:

• Nemo debet bis vexari pro una et eadem causa (no man should be vexed twice for the same
cause.
• Interest reipublicae ut sit finis litium (there should be an end to litigation)
• Res judicata pro veritate occipitur (judicial decision must be accepted as correct).
AND BASIC PRINCIPLES OF EQUITY, JUSTICE AND GOOD FAITH.
Conditions:
To constitute a matter as RJ under section 11, the following conditions need to be satisfied:
1. The matter directly and substantially in issue in the subsequent suit MUST BE the same as
the matter which was directly and substantially in issue either actually (Explanation III) OR
constructively (Explanation IV) in the former suit (defined in Explanation I).
 2. The former suit must have been a suit between the same parties OR under whom they or any
of them claim (Explanation VI).
3. Such parties must have been litigating under the same title in the former suit.
4. The court which decided the former suit must be a court competent to try the subsequent
suit (Explanation II).
5. The matter directly and substantially in issue in the subsequent matter should have been
heard and finally decided by the Court in the former suit (Explanation V).
Differentiation between Res Judicata, Constructive Res Judicata and Estoppel and Order II
Rule 2
Res Judicata: A matter that has been adjudicated by a competent court and a final judgment
rendered on the merits is conclusive as to the rights of the parties, the parties are prevented from
litigating further on the same cause of action.
Constructive Res Judicata: Issues that ought or might have been raised in a case but were not
raised are precluded from relitigation. It essentially extends the preclusive effect of res judicata to
related matters that were not directly addressed in the original case.
Estoppel: It prevents a party from asserting a claim or defense that is inconsistent with the previous
position or representation they made, especially if the other party relied on that position to their
detriment. It differs from the above as it focuses on preventing a party from taking a particular
position in a legal proceeding based on their prior actions or statements, rather than on the finality
of the prior judgment. Estoppel can operate independently of a prior judgment and can arise in
various contexts, including contractual agreements, representations made during negotiations, or
conduct during legal proceedings.
Order II Rule 2: If in a suit, you had more than one reliefs available with you but you only asked for
some; in such case, for the remaining reliefs (if leave of court is not taken in respect of them) another
suit is barred by virtue of Order II Rule 2 (mentions that the suit must contain whole claim with
respect to a cause of action).

Hope Plantations Ltd vs Taluk Land Board Peermade & Anr 1999 (5) SCC 590
Daryao v State of U.P. AIR 1961 SC 1457

Facts: Since the last fifty years, the petitioners and their ancestors have been the tenants of a piece
of land. Respondents are the proprietors of the said land. Owing to communal disturbances in Uttar
Pradesh in 1947, the petitioners had to leave their village in July 1947; in November, 1947, they
returned but they found that during their temporary absence, respondents had entered in unlawful
possession of the said land.

Procedural history: Since the respondents refused to deliver possession of the land to the
petitioners, the petitioners filed suit for ejectment. Aggrieved by the decision of the Board of
Revenue’s decision under the U.P. Zamindari Abolition Act, the petitioners moved the High Court at
Allahabad under Article 226 of the Constitution for the issuance of a writ of certiorari to quash the
said judgment. Their writ petition was dismissed; then the petitioners filed the present petition
under Article 32.

Issue: Whether a petition to Supreme Court for the enforcement of the Fundamental Rights which
is guaranteed by Article 32 is hit by the principle of Res Judicata?

Contentions of the parties: The respondents contended that the petitioners had already exhausted
the limitation period to appeal against the decision of the High Court under Article 136 and the
grounds raised by them in the present petition are exactly the same as the ones raised before the
Allahabad High Court; hence, the present petition is barred by res judicata. The petitioners
contended that their petition seeks to enforce fundamental rights guaranteed by the Constitution.
Article 32(1) is itself a fundamental right to move to Supreme Court for the enforcement of
fundamental rights. Right to enforce one's fundamental rights cannot be put in the straight jacket of
the technical rule of res judicata which is similar to the rule of estoppel.

Judgment: It was held that Res Judicata is an essential part of the rule of law. The court revisited
the three maxims on the basis of which the doctrine of res judicata was founded - first, none should
be vexed twice for the same cause; second, it is in the interest of this state that there is an end to
litigation; third, a judicial decision must be accepted as correct. The first maxim relates to private
interest, whereas the other two maxims relate to public policy and larger interest of the society. It
was held that:

• The doctrine apples to all judicial proceedings and equally to all quasi judicial proceedings
before tribunals.
• Section 11 of CPC operates against both the parties to a suit and not against the defendant
alone.
• The principle of Res Judicata is a mixed question of fact and law and has to be specifically
pleaded. In determining the application of the rule of Res Judicata, the court is not concerned
with the correctness or otherwise of the earlier judgment.
 • A wrong decision by a court having jurisdiction is as much binding between the parties as a
right one and it may be superseded only by an appeal or revision to a higher court or tribunal
or other procedure known to law.

The Court was satisfied that a change in the form of attack against the impugned statute would make
no difference to the true legal position that the writ petition in the High Court and the present writ
petition were directed against the same statute and the grounds raised by the petitioner in that
behalf were substantially the same. Therefore, the decision of the High Court pronounced by it on
the merits of the petitioner's writ petition under Art. 226 was held to be a bar to the making of the
present petition under Art. 32. In the result, it was held:

When the decision is given in limine:

a. If the order is given on merits it would serve as rest judicata;

b. If there is no speaking order, it won’t be treated as res judicata.
IX. Forum non conveniens and Anti-suit injunction

‘Choice of foreign court’

The test of FNC (Forum Non Conveniens) is conducted when the court considers not to exercise its
jurisdiction on a matter because there exists a more appropriate forum of competent jurisdiction.
In most cases, this happens:
1. when both parties have not incorporated any jurisdiction clause in their contract; OR
2. when any one or both of them abandon the contractual choice of court and move to a
different court of competent jurisdiction.
In the first scenario, one of them challenges the jurisdiction of the court chosen by the other as being
inappropriate to hear the matter and demands an Anti-Suit Injunction from the appropriate forum
to stop the other party from instituting or carrying on the suit in the inappropriate forum as being
either of incompetency or inconvenience and hence causing oppression and defeating ends of
justice. The court then decides the appropriate forum (forum conveniens) based on the convenience
of the parties and may grant anti-suit injunction against proceedings which are oppressive (causing
undue hardship) or vexatious or in a forum non conveniens.
In the second scenario, where jurisdiction of a court is invoked on the basis of the jurisdiction clause
in a contract, clauses regarding exclusive or non-exclusive jurisdiction of the court are not
conclusive but are relevant factors. The court has to decide the appropriate forum based on a true
interpretation of the contract and on the facts and circumstances. In such cases, anti-suit injunction
is granted only in exceptional cases. For instance, 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 its choice because the essence of the jurisdiction of the court does not exist or because
of a vis major or force majeure and the like. (Essence of jurisdiction meaning where the
intent/purpose with which the parties conferred jurisdiction to the court of their choice has become
infructuous).
Modi Entertainment Network v. WSG Cricket (2003) 4 SCC 341
Facts: WSG, incorporated in Singapore, granted license to Doordarshan to telecast an ICC
tournament in India in exchange for certain commission from the profits earned. Under the contract,
London court was chosen as a neutral forum in case of disputes arising between the parties, but the
clause provided that London court will have ‘non-exclusive jurisdiction’. Soon after commencement
of telecast, WSG complained to Doordarshan that the signal of satellite transmitting the tournament
was being received in the Middle-East which amounted to breach of contract and violation of the
license granted to the Middle-East licensee. Therefore, it asked Doordarshan to rectify the same,
else it would withdraw the license. Doordarshan lost huge advertising revenue due to re peated
threats by WSG to discontinue the license and filed a suit in Bombay High Court claiming damages
for the same. Thereafter, WSG filed a suit in the London court for recovery of commission, while
Doordarshan filed for Anti-suit Injunction before the Bombay High Court praying that WSG be
ordered not to proceed with the suit pending in London on the ground that the UK court is a forum
non-conveniens. The matter went on to Supreme Court.
Issue: Whether Anti-suit injunction should be granted to Doordarshan against WSG’s suit in London
court?
Judgment: The court opined that in the course of global commercial activities, parties may agree to
submit to exclusive or non-exclusive jurisdiction of a foreign court, and it shows they have foreseen
possible breach of agreement by any party and agreed to resolve their disputes through the forum
agreed upon under the agreement. London court cannot be considered a forum non -conveniens
only on the basis of Doordarshan’s argument that continuance of suit in London court would be
oppressive and vexatious. Since no good and sufficient reason to grant anti-suit injunction is made
out, the court will not aid Doordarshan to commit breach of agreement by restraining WSG from
prosecuting in the agreed forum of choice.
Usage of the Doctrines within Indian Jurisdiction:
This doctrine is not used in domestic matters as the subsequent suit is barred by section 10 of CPC
but the principles thereof can be invoked by the High court under its writ jurisdiction as an exercise
of its discretionary power. In Horlicks v. Heinz 2009 (164) DLT 539 also it was held that the
doctrine does not apply to civil suits in India which are governed by the Civil Procedure code. The
court opined that the principle of forum non conveniens applies to foreign forums and Indian courts
can apply the said principle vis-a-vis foreign forums or while exercising discretionary jurisdiction
under Article 226 of the Constitution of India.
Note: Refusing to exercise jurisdiction on grounds of this doctrine is different from dismissing a
writ petition solely on grounds that the petitioner has not availed an alternative remedy; the latter
being not considered to be proper without due examination of other aspects of the case and the
former being based on anaylsis of forum interest of the parties originating from contract, legal
relationship, facts, convenience and other considerations.
-----------------------------------------------------------------------------------------------------------------------------
 Institution of a Suit
Order I: Parties to Suits
Key Concepts:

• Necessary and Proper Party

• Joinder, Non-Joinder and Misjoinder of Parties + Consequences and Objections
• Power of Court vis-a-vis Impleadment of Parties
• Representative Suit (Conditions)
Necessary and Proper Party:

▪ Necessary party is one whose presence is a 'sine qua non' to the constitution of the
suit.
▪ Proper party is one in whose absence, although an effective order can be passed, but
whose presence is necessary for a complete and final decision on the questions
involved in the proceeding.

For instance, in a suit for partition by sons against their father, grandsons are proper parties
to the suit whereas all sharers (sons) are necessary parties. Similarly, in a suit for possession
by a landlord against his tenant, a sub-tenant is only a proper party while the tenant is a
necessary party.
Twin test for determining the question of a necessary party is: (laid down in Kasturi v.
Iyyamperumal, (2005) 6 SCC 733, 738)

1. There must be a right to some relief against such party in respect of the controversies
involved in the proceedings;
2. No effective decree can be passed in the absence of such party.
Joinder of Parties:
Rule 1. Who may be joined as plaintiffs.—All persons may be joined in one suit as plaintiffs
where—
(a) any right to relief in respect of, or arising out of, the same act or transaction or series of
acts or transactions is alleged to exist in such persons, whether jointly, severally or in the
alternative;
and
(b) if such persons brought separate suits, any common question of law or fact would arise.
Rule 2. Power of Court to order separate trial.—Where 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 the election or order separate trials or make such other order as may be
expedient.
Rule 3. 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.
Rule 3A. Power to order separate trials where joinder of defendants may embarrass or delay
trial.—Where it appears to the Court that any joinder of defendants may embarrass or delay
the trial of the suit, the Court may order separate trials or make such other order as may be
expedient in the interests of justice.
Misjoinder and Non-joinder of Parties:
Rule 9. Misjoinder and nonjoinder.—No suit shall be defeated by reason of the misjoinder
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.
Read with Section 99 – Validity of Decree
Rule 10. Suit in name of wrong plaintiff.—(1) Where a suit has been instituted in the name
of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the
name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has
been instituted through a bona fide mistake, and that it is necessary for the determination of
the real matter in dispute so to do, order any other person to be substituted or added as
plaintiff upon such terms as the Court thinks just.
(2) Court may strike out or add parties.—The Court may at any stage of the proceedings,
either upon or without the application of either party, and on such terms as may appear to
the Court to be just, order that the name of any party improperly joined, whether as plaintiff
or defendant, be struck out, and that the name of any person who ought to have been joined,
whether as plaintiff or defendant, or whose presence before the Court may be necessary in
order to enable the Court effectually and completely to adjudicate upon and settle all the
questions involved in the suit, be added.
(3) No person shall be added as a plaintiff suing without a next friend or as the next friend of
a plaintiff under any disability without his consent.
(4) Where defendant added, plaint to be amended.—Where a defendant is added, the plaint
shall, unless the Court otherwise directs, be amended in such manner as may be necessary,
and amended copies of the summons and of the plaint shall be served on the new defendant
and, if the Court thinks fit, on the original defendant.
(5) Subject to the provisions of the 1 [Indian Limitation Act, 1877 (XV of 1877)], section 22,
the proceedings as against any person added as defendant shall be deemed to have begun
only on the service of the summons.
Objections to Non-joinder and Misjoinder:
Rule 13. Objections as to non-joinder or misjoinder.—All objections on the ground of
nonjoinder or misjoinder 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.
Consequences of Misjoinder and Non-joinder:
Section 99. No decree to be reversed or modified for error or irregularity not affecting
merits or jurisdiction.—No decree shall be reversed or substantially varied, nor shall any
case be remanded, in appeal on account of any misjoinder or non-joinder] of parties or
causes of action or any error, defect or irregularity in any proceedings in the suit, not
affecting the merits of the case or the jurisdiction of the Court:
Provided that nothing in this section shall apply to non-joinder of a necessary party.
Representative Suit:
Rule 8. One person may sue or defend on behalf of all in same interest.—(1) Where there
are numerous persons having the same interest in one suit,—
(a) one or more of such persons may, with the permission of the Court, sue or be sued, or
may defend such suit, on behalf of, or for the benefit of, all persons so interested;
(b) the Court may direct that one or more of such persons may sue or be sued, or may defend
such suit, on behalf of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is given under sub -rule
(1), at the plaintiff's expense, give notice of the institution of the suit to all persons so
interested, either by personal service, or, where, by reason of the number of persons or any
other cause, such service is not reasonably practicable, by public advertisement, as the Court
in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, under
sub-rule (1), may apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such
suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement,
compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order,
unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the
manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due
diligence in the suit or defence, the Court may substitute in his place any other person having
the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf,
or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation.— For the purpose of determining whether the persons who sue or are sued, or
defend, have the same interest in one suit, it is not necessary to establish that such persons
have the same cause of action as the persons on whose behalf, or for whose benefit, they sue
or are sued, or defend the suit, as the case may be.
Case Laws:
Mumbai International Airport v. Regency Convention Centre (2010) 7 SCC 417 (Parties
to the Suit)

Facts: The Airport Authority of India (AAI) leased Mumbai Airport premises to a private
operator for expansion into a world class Airport, barring at certain area which was subject-
matter of a pending suit with Regency Convention Centre (RCC) and any transfer of it was
prohibited by court’s orders. The lease deed stated that the same area will be a part of the
leased premises subject to the court’s verdict.
Procedural History: Plaintiff filed an application to implead itself as a defendant in the
ongoing suit with respect to the said area on the ground that in the view of its object to make
the Airport a world class airport, plaintiff’s interests are likely to be directly affec ted if any
relief was granted to the RCC. The application was dismissed on the ground that the plaintiff
was not a necessary party to that suit, and hence, plaintiff preferred appeal by special leave
to the Supreme Court.
Issue: Whether Mumbai International Airport can be added as a necessary or proper party
to the suit going between RCC and AAI?
Judgment: It was held that the fact that a person is likely to secure interest/right in a suit
property depending upon the decision of the court, will not make that person a necessary or
proper party to the suit. To be impleaded as a party to a suit is not a matter of right but the
choice of the plaintiff to choose its adversary or a judicial discretion which has to be
exercised according to reason and fair play. Here, the plaintiff did not even exist in the picture
when the suit between RCC and AAI was instituted and holds no nexus to the said suit.
Presence of plaintiff is neither necessary for passing a decree nor for complete and effective
adjudication of the matters in issue.
Pramod P. Shah v. Ratan N. Tata & Ors. 2017 SCC Online Bom 5269 (Representative
Suit)
Facts: Petitioner claiming to be a shareholder in one of the defendant companies, intended
to sue the defendant companies comprising of Tata group (TCS, TGBL, Tata Motors, etc.) in a
representative capacity of all other shareholders on the ground that ousting of Cyrus Mistry
has led to a dip in the shares of all the Tata companies, therefore, it has caused all the non -
promotor shareholders of the group of Tata companies, including the petitioner, a huge loss.
Therefore, the petitioner applied for the leave of court under Order I Rule 8 to sue the Tata
group as a representative of non-promotor shareholders of Tata group of companies
claiming damages to the tune of 41k cr and reinstatment of Cyrus Mistry as Chairperson.
Issue: Whether Pramod P. Shah can file a suit in representative capacity against the Tata
Group?
Judgment: The question considered by the court was whether there is a ‘commonality of
interest’ between all the non-promotor shareholders. It was held that the Tata companies in
the group are all separate entities having separate Memorandums & Articles of Associatio n,
Board of Directors, etc. If Cyrus Mistry is ousted from Tata Sons, which is a holding company,
it has different number of shares in different Tata companies; thus, resulting in separate
causes of action and no commonality of interest. When the companies in the Tata group are
all different entities, then how could there be a commonality of interest warranting the
petitioner to represent them all in one suit on the basis of common interest? Therefore,
different suits have to be instituted by shareholders of each Tata company to claim a relief.
In that case, one person may represent the shareholders of that particular company. It will
be extremely unjust to join all those non-promotor shareholders who do not want
reinstatement of Cyrus Mistry but would be bound to accept his reinstatement if petitioner
succeeds in the representative suit and suffer such reinstatement as something which was
prayed for on their behalf or for their benefit. To avoid such predicament, they would be
forced to join the suit and defend it, when they really had no intention or obligation to do so.
Hence, the application is bound to be dismissed in the absence of no commonality of interest.

Order II: Frame of Suits

Key Concepts:
• Rules concerning joinder and splitting of causes of action
• Effect of Splitting of causes of action
The rule against splitting is that a single cause shall not be "split" or divided among
several suits. This is designed to prevent litigation of the same question in different suits. It,
therefore, compels a party to include all extensions of the issues in a single suit or else forfeit
the opportunity to litigate them elsewhere.
Effect of splitting a single cause of action – If two or more suits are instituted on the basis
of the same cause of action, the filing of one or a judgment upon the merits in any one is
available as a ground for the dismissal of the others.
General Rule
1. Frame of suit.—Every suit shall as far as practicable be framed so as to afford ground for
final decision upon the subjects in dispute and to prevent further litigation concerning them.
Splitting of cause of action is allowed but has consequences attached
2. Suit to include the whole claim.—(1) Every suit shall include the whole of the claim
which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may
relinquish a portion of his claim in order to bring the suit within the jurisdiction of any Court.
(2) Relinquishment of part of claim.—Where a plaintiff omits to sue in respect of, or
intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of
the portion so omitted or relinquished.
(3) Omission to sue for one of several reliefs.—A person entitled to more than one relief
in respect of the same cause of action may sue for all or any of such reliefs; but if he omits,
except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for
any relief so omitted.
When can the causes of action be joined?
General Rule
3. Joinder of causes of action.—(1) Save as otherwise provided, a plaintiff may unite in the
same suit several causes of action against the same defendant, or the same defendants
jointly; and any plaintiffs having causes of action in which they are jointly interested against
the same defendant or the same defendants jointly may unite such causes of action in the
same suit.
(2) Where causes of action are united, the jurisdiction of the Court as regards the suit shall
depend on the amount or value of the aggregate subject-matters at the date of instituting the
suit.
Special Rule
4. Only certain claims to be joined for recovery of immovable property.—No cause of
action shall, unless with the leave of the Court, be joined with a suit for the recovery of
immovable property, except—
(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part
thereof;
(b) claims for damages for breach of any contract under which the property or any part
thereof is held’; and
(c) claims in which the relief sought is based on the same cause of action:
Provided that nothing in this rule shall be deemed to prevent any party in a suit for
foreclosure or redemption from asking to be put into possession of the mortgaged property.
Separate Trials
6. Power of Court to order separate trials.—Where it appears to the Court that the joinder
of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient,
the Court may order separate trials or make such other order as may be expedient in the
interests of justice.
Objections to Misjoinder of Causes of Action
7. Objections as to misjoinder.—All objections on the ground of misjoinder of causes of
action 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.
Case Laws:
Inbasagaran v. S. Natarajan (2015)11 SCC 12 (Order II Rule 2)

Facts: S. Natarajan (S) was allotted a plot on lease-cum-sale agreement by Housing Board of
TN, the sale deed for which was to be executed once S constructed a building on that plot.
Meanwhile, S entered into an agreement to sell the same plot with Inbasagaran (I) agreeing
that once sale deed is executed in favor of S, it will register the same in the name of I. I had
paid the sale consideration. Later, the parties decided that I shall construct building on the
plot at his own expenses. After I constructed the building and took possession, Housing
Board executed the sale deed in favor of S. I contended that S concealed this fact and
attempted to forcibly take possession of the building constructed by I.
Procedural History: I filed a suit for permanent injunction restraining S from forcibly taking
possession of the building. After a year & during the pendency of that suit, I filed for specific
performance of the agreement to sell which was signed between I and S, to which S
contended that it was barred by Order II Rule 2 and should have been included in the earlier
suit. In the latter suit, court directed S to execute and register the sale document in favor of
I, while the former suit for injunction was dismissed. S appealed to High Court which agreed
that second suit by S was barred by Order II Rule 2. I then moved to Supreme Court.
Issue: Whether the second suit by I is barred by Order II Rule 2?
Judgment: Court stated that causes of action for the two suits are different and distinct and
the evidence to support the relief in the two suits is also different, therefore, the provisions
of Order II Rule 2 will not apply. The first cause of action arose when S tried to forcibly occupy
the property. The second cause of action arose when S disclosed that property was
transferred in his favor by the Housing Board. Hence, the causes of action are not same and
identical.

Gurbux Singh v Bhooralal – 5 judge bench- 1964 AIR 1810 : 1964 SCR (7) 831 (Frame
of Suit)
Factual Matrix & Procedural History: Bhooralal brought a suit in trial court against Gurbux
claiming possession of certain property and mesne profits (alleging that he was the absolute
owner of the said property of which Gurbux was in wrongful possession and that inspite of
demands he had failed to vacate the same and was therefore liable to pay mesne profits).

[Note: In the plaint he made reference to a previous suit filed by him for recovery of mesne
profits in regard to the same property for the period ending prior to the institution of this
suit. It was also stated that mesne profits had been decreed in the sa id suit].

Gurbux challenged the maintainability of the suit under Order II Rule 2. He argued that when
the previous suit referred to in the plaint was filed, the plaintiff had a cause of action for the
present reliefs also. He, having omitted to sue for possession in that suit, is now barred from
claiming relief of possession. And since he cannot ask for possession, he can also not ask for
mesne profits (that relief being based on account of wrongful possession).
The trial court dismissed the suit relying on defendant’s contention. The plaintiff preferred
an appeal to the Additional District Judge who considered his plea on two alternate basis.

District Court - In the first place, the judge pointed out that the pleadings of the earlier suit
had not been filed on record by the defendant along with his defense , so it was not known
what the precise allegations of the plaintiff in his previous suit were. For this reason, the
court held that the plea of a bar under Order II Rule 2 should not have been entertained at
all.

Secondly, it was observed that there is a conflict of judicial opinion on the question whether
a suit for possession of immovable property and a suit for the recovery of mesne profits from
the same property are both based on the same cause of action because only if these two
reliefs are based on “the same cause of action”, the plea of Order 2 Rule 2 could succeed.
Clause (3) of Order 2 Rule 2 that is relevant in this context reads:

“(3) A person entitled to more than one relief in respect of the same cause of action may sue
for all or any of such reliefs, but if he omits, except with the leave of the Court, to sue for all
such reliefs, he shall not afterwards sue for any reliefs so omitted.”

Some of the High Courts, notably Madras, have in this connection, referred to the term of
Order 2 Rule 4 as an aid to the construction of the term ‘cause of action’ and the expression
“relief in respect of the same cause of action” in Order 2 Rule 2(3). Th e provision runs:

“Rule 4. No cause of action shall unless with the leave of the Court, be joined with a suit for
the recovery of immoveable property, except—

(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part
thereof;
(b) claims for damage for breach of any contract under which the property or any part
thereof is held; and

(c) claims in which the relief sought is based on the same cause of action;

Provided that nothing in this rule shall be deemed to prevent any party in a suit for
foreclosure or redemption from asking to be put into possession of the mortgaged property.”

Reading these two provisions together it has been held that the cause of action for suits for
possession of immovable property and the cause of action for a suit in respect of mesne
profits from the same property are distinct and different. On the other ha nd, it has been held,
particularly by the High Court of Allahabad that the basis of a claim for mesne profits is
wrongful possession of property and so is a claim for possession and thus the cause of action
for claiming either relief is the same i.e. wrongful possession of property to which the
plaintiff is entitled. On this reasoning it has been held that a plaintiff who brings a suit for
possession alone or for mesne profits alone is afterwards debarred from suing for the other
relief under Order 2 Rule 2(3).

The trial Judge, after referring to the conflict of authority, preferred the Allahabad view and
therefore, upheld the defence. The District Judge, on the contrary, expressed preference for
the other view. The Single Judge, on appeal by the defendant, expressed his concurrence with
the District Judge in preferring the Madras view as against the decisions of the Allahabad
High Court.

Supreme Court - In order that a plea of a Bar under Order 2 Rule 2(3) should succeed, the
defendant who raises the plea must make out:

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

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

(3) that being thus entitled to more than one relief, the plaintiff, without obtaining leave from
the Court, omitted to sue for the relief for which the second suit had been filed.

From this analysis, it would be seen that the defendant would have to establish primarily,
the precise cause of action upon which the previous suit was filed, and if it is identical to that
on which the claim in the latter suit is based, the bar would apply.

No doubt, a relief which is sought in a plaint could ordinarily be traceable to a particular

cause of action but this might, by no means, be the universal rule. As the plea is a technical
bar it has to be established satisfactorily and cannot be presumed merely on basis of
inferential reasoning. It is for this reason that we consider that a plea of a bar under Order 2
Rule 2 can be established only if the defendant files in evidence the pleadings in the previous
suit and thereby proves to the Court the identity of the cause of action in the two suits.

It was observed that the pleading of previous suit were not filed by the appellant in the
present suit as evidence in support of his plea of Order 2 Rule 2. The learned trial Judge,
however, without these pleadings being on the record inferred what the cau se of action
should have been from the reference to the previous suit contained in the plaint as a matter
of deduction. At the stage of the appeal, the learned District Judge noticed this lacuna in the
appellant's case and rightly pointed out that without the plaint in the previous suit being on
the record, a plea of a bar under Order 2 Rule 2 was not maintainable .

Order III: Recognized Agents & Pleaders

Rule 1 – Appearances, etc.:

• Any appearance, application or act in or to any Court, required or authorized by law

to be made or done by a party in such Court may be in person, by recognized agent or
by pleader

Rule 2 – Recognized Agents:

• Recognized agent may be persons holding power of attorney or persons carrying on

trade or business for and in the names of parties in matters connected with such trade
or business only.

Rule 3 & 5 - Service to the Recognized Agent/Pleader:

• Same provisions/rules to apply as service of process to party

• Same effect as to service of process to Party

Rule 4 - Appointment of Pleader:

(1) No pleader shall act for any person in any Court, unless he has been appointed for the
purpose by such person by a document in writing signed by such person/RA.

(2) Every such appointment shall be filed in Court and shall be deemed to be in force until
determined with the leave of the Court in writing signed by the client, and filed in Court, or
until the client or the pleader dies, or until all proceedings in the suit are ended so far as
regards the client.

Explanation defines all pleadings

Order IV: Institution of Suit

1. Suit to be commenced by plaint— (1) Every suit shall be instituted by presenting a plaint
(IN DUPLICATE) to the Court or such officer as it appoints in this behalf. (also Section 26)
2. Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are
applicable.

Procedure of Submission

• Presentation to Court or such officer as the Court appoints (Registry).

• Generally on working day in office hours (time for each State is different)
• No bar on place or time of acceptance as such
• The plaint will be scrutinized by Stamp Reporter, if there are defects,
plaintiff/agent/pleader will rectify.
• Thereafter details will be entered in a ‘Register for civil suits’ and suit is numbered
(Rule 2).

Order V: Issue and Service of Summons

Key Concepts:

• Calculation of time period for filing WS

• Types of Summons: for appearance or disposal of suit or settlement of issues
• Modes of Service of Summons: Actual and Deemed service
• Substituted Service & Effect
• Service depending on Defendant’s circumstances

Points to remember:

• Practical is very different from theory (30 Rules - mostly suggestive)

• Object-ensure defendant receives notice to respond but Plaintiff cannot be punished
for non-availability of Defendant.
• If in the same jurisdiction, server of court may go. (Dasti Notice from Dastak)
• If outside jurisdiction, post etc.
• Post is refused- SC judgment- deemed service
• Server’s Report.
• If defendant cannot be found (Chaspa- Rule 17)

Some Important Rules:

1. Summons— (1) When a suit has been duly instituted a summons may be issued to the
defendant to appear and answer the claim and to file the written statement of his defence, if
any, within thirty days from the date of service of summons on that defendant:

Provided that no such summons shall be issued when the defendant has appeared at the
presentation of the plaint and admitted the plaintiff's claim:

Provided further that where the defendant fails to file the written statement within the said
period of thirty days, he shall be allowed to file the written statement on such other day, as
may be specified by the Court, for reasons to be recorded in writing and on payment of such
costs as the Court deems fit, but which shall not be later than one hundred twenty days from
the date of service of summons and on expiry of one hundred twenty days from the date of
service of summons, the defendant shall forfeit the right to file the written statement and the
Court shall not allow the written statement to be taken on record.

(2) A defendant to whom a summons has been issued under sub-rule (1) may appear—

(a) in person, or

(b) by a pleader duly instructed and able to answer all material questions relating to the suit,
or

(c) by a pleader accompanied by some person able to answer all such questions.

(3) Every such summons shall be signed by the Judge or such officer as he appoints and shall
be sealed with the seal of the Court.

2. Copy of plaint annexed to summons.—Every summon shall be accompanied by a copy of

the plaint.

3. Court may order defendant or plaintiff to appear in person.—(1) Where the court sees
reason to require the personal appearance of the defendant, the summons shall order him to
appear in person in Court on the day therein specified.

(2) Where the Court sees reason to require the personal appearance of the plaintiff on the
same day, it shall make an order for such appearance

Other Rules:

• Defendant may be asked to present documents (rule 7) or produce witness (rule 8).
• Service may be made, instead of the defendant, on the authorized agent or pleader
(read rules 12,13,14 and 15)

Service of Summons:

• Where the defendant resides within the jurisdiction of the Court in which the suit is
instituted, or has an agent resident within that jurisdiction who is empowered to
accept the service of the summons, the summons shall, unless the Court otherwise
directs, be delivered or sent to the proper officer to be served by him or one of his
subordinates. (Rule 9)
• Where there are more defendants than one, service of the summons shall be made on
each defendant. (Rule 11)
• Receiver to sign acknowledgment (Rule 16)

Deemed Service and Role of Serving Officer (Rule 17)

Where the defendant or his agent or such other person as aforesaid refuses to sign the
acknowledgement, OR

where the serving officer, after using all due and reasonable diligence, cannot find the
defendant, who is absent from his residence at the time when service is sought to be effected
on him at his residence and there is no likelihood of his being found at the residence within
a reasonable time and there is no agent empowered to accept service of the su mmons on his
behalf, nor any other person on whom service can be made,

THEN

the serving officer shall affix a copy of the summons on the outer door or some other
conspicuous part of the house in which the defendant ordinarily resides or carries on
business or personally works for gain, and

shall then return the original to the Court from which it was issued, with a report endorsed
thereon or annexed thereto stating that he has so affixed the copy, the circumstances under
which he did do, and the name and address of the person (if any) by whom the house was
identified and in whose presence the copy was affixed.

Such officer may be examined on oath (Rule 19)

Rule 20 – Substituted Service

Where the Court is satisfied that there is reason to believe that the defendant is keeping out
of the way for the purpose of avoiding service, or that for any other reason the summons
cannot be served in the ordinary way, the Court shall order the summons to be served by
affixing a copy thereof in some conspicuous place in the Court-house, and also upon some
conspicuous part of the house (if any) in which the defendant is known to have last resided
or carried on business or personally worked for gain, or in such other manner as the Court
thinks fit.

(1A) Where the Court acting under sub-rule (1) orders service by an advertisement in a
newspaper, the newspaper shall be a daily newspaper circulating in the locality in which the
defendant is last known to have actually and voluntarily resided, carried on business or
personally worked for gain.

(2) Effect of substituted service—Service substituted by order of the Court shall be as

effectual as if it had been made on the defendant personally.

Service depends on circumstances of Defendant:

• Rule 21- Service of summons where defendant resides within jurisdiction of another
Court
• Duty of Court to which summons is sent –Rule 23
 • Service on defendant in prison –Rule 24
• Service where defendant resides out of India and has no agent –Rule 25 etc.
• Till Rule 28

Example of Service by Chaspa Notice (Affixing copy of summons):

मुनादी कराते हुए चस्पा की धारा 82 की नोटिस, हत्या के प्रयास मामले वाांटित था - https://dainik-b.in/KQhz7e4GDzb
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Rules on Pleadings
Orders VI, VII, VIII
Order VI – Pleadings Generally
Key Concepts:

• Principles of Pleadings
• Amendment of Pleadings

Principles of Pleadings:

Meaning of Pleadings:

• Pleading means plaint or written statement- Rule 1.

• A pleading sets out the case for a party.

Object of Pleadings:

• Reasonable opportunity to the other side to respond.

• Because whenever a party files anything, a copy of the same is given to the other side
to respond.
• It helps to bring the parties to definite issues and to avoid surprise element.

Basic Rules of Pleadings:

➢ Should contain material facts briefly
(SC has defined material facts- all primary facts which must be proved at the trial by a party
to establish the existence of a cause of action or his defence are material facts)
Material facts:

• Basic facts which must be pleaded by the party.

• Purpose is to give a chance to the other side to know the case that he has to defend.
• In the absence of the pleading, a party cannot lead evidence.
• Non mention of a material fact leads to non-pleading and no cause of action arises in
favour of such party.

Particulars:

• Details of the case.

• They amplify, refine, and embellish material facts.
➢ Should NOT contain evidence

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The following case illustrates that evidence of facts, as distinguished from the facts
themselves, need not be mentioned in the pleading.

Borrodaile v. Hunter (1845)5 M&G 639 (Principles of pleadings)

Facts: A was insured with an insurance company. One of the terms of the policy was that the
policy would be void if the insured committed suicide. A actually committed suicide by
shooting himself with a pistol. Thereupon, an action was brought against the company on the
policy.

Judgment: It was held that the company should only plead that A had committed suicide and
therefore, the policy became void because this is the ‘material fact’. Other facts like - A was
melancholy for weeks, that he bought a pistol a day before his death, shot himself with the
said pistol and that a letter was found with him addressed to his wife stating that he intended
to kill himself are all evidences by means of which the material fact is to be proved, and
hence, not required to be stated in the pleading. Thus, a pleading should contain a statement
of material facts on which the party relies but not the evidence by which those facts are to
be proved.

➢ Should NOT contain law- it is for the court to decide

➢ Signing and Verification:
• Pleadings to be signed by the party or any person authorized by him and his pleader.
• Rule 15- Every pleading shall be verified and the person verifying shall specify by
reference to the numbered paragraphs of the pleading
a. what he verifies of his own knowledge and
b. what he verifies upon information received and believed to be true.
• Date and place at which it was signed.
• The person verifying the pleading shall furnish an affidavit.
Amendment of Pleadings – Rule 17 (Effective from 1st July 2002)
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 questions in
controversy between the parties.
Proviso: 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.
Cardinal Principles:
Object: Courts empowered to grant amendment of pleadings in the larger interest of doing
full and complete justice to parties.
Discretion of Court:

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• By whom? - Any Party

• By when? - before commencement of trial
• Where? - where it is necessary for determination of real questions in controversy
• What kind of order?
→ Non-appealable order
→ Revision or Writ Petition
Questions to be asked:
• Whether the amendment is necessary for the determination of the real question in
controversy?
• Is the amendment sought with bonafide intentions?
• Whether the amendment alters the original COA or substitutes the original COA?
(Undue influence or Fraud)
• Whether the proposed amendment is inconsistent/ contradictory with the original
pleading?
Examples of when an amendment is granted
• To take note of subsequent events.
• To avoid multiplicity of proceedings
• To add a consequential relief
Examples of when amendment not granted
• Inconsistent plea
• Alters the COA
Scheme:
• Either the Plaintiff/Defendant applies for amendment
• Trial Court issues notice to the other side.
• Court hears both the parties on whether the amendment should be allowed.
• Passes a reasoned order.
• If aggrieved, then such party may prefer a revision before the HC or file a W.P.
Case Laws:
B.K. Narayana Pillai v. Paremswaran, (2000) 1 SCC 712 (Amendment of Pleadings)

Facts: Plaintiff filed a suit for eviction of the defendant alleging that he was a licensee.
Defendant, in his WS, contended that he was a lessee than a mere licensee. After the trial had
begun, defendant applied for amendment to his WS in order to add an alterna tive plea that
in case he is found to be a licensee, he is not liable to be evicted because his license is
irrevocable.

Issue: Whether such amendment should be allowed?

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Judgment: The amendment sought is nor inconsistent to the pleas already raised neither a
withdrawal of any admission made in favor of the other side. Merely because the amendment
is filed after a prolonged delay is no ground to reject it particularly when it does no t cause
such prejudice to the other side which cannot be compensated by costs. The amendment is
necessary for determining the real controversies in the suit, and hence, allowed.

Rajesh Kumar Aggarwal v. KK Modi, (2006) 4 SCC 385 (Amendment of Pleadings)

Facts: An Officers’ Welfare Trust formed for the general benefit of the employees of a
Company purchased 58000 equity shares of Godfrey Philips (GPI) which were held in the
name of the Trustee who had opened a separate bank account in his own name and not in
the name of the Trust. Any share certificates issued by GPI were not being received by the
beneficiaries nor any bonus shares were forwarded to them.

Procedural History: Not being able to derive any benefit from the Trust, beneficiaries filed
a suit for declaration, and permanent and mandatory injunction against the Trustee. Later,
they sought to amend their plaint to incorporate the relief of directing the defendants to s ell
the shares of GPI held by the Trust and use the sale proceeds for the benefit of the
beneficiary-employees.

Issue: Whether such amendment should be allowed?

Judgment: The first part of Order 6 Rule 17 is discretionary which leaves it to the court to
allow amendment of pleading at any stage of the suit. The second part, however, is
imperative and enjoins the court to allow all such amendments which are necessary for
determining the real questions in controversy between the parties (here, for the interest of
the beneficiaries of the Trust as the Trustee was in exclusive possession of the shares of GPI
and on the dividends and was still exercising voting rights). Here, the proposed amendment
does not change the nature of the suit and there is no inconsistency with the relief claimed
in original plaint. Considering these reasons, and without going into the merits of the case in
amendment, it was held that if the same relief can be prayed for in the new suit, it can also
be incorporated in the pending suit.

Order VII – Plaint

Key Concepts:

• Contents of Plaint
• Return of Plaint
• Rejection of Plaint

Contents of Plaint:

• Rule 1: Particulars to be contained in Plaint.

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(Court/ Parties/ COA and when it arose/ jurisdiction/ reliefs/ valuation for the
purposes of court fees)
• Rule 3: Where the subject matter of the suit is immovable property - Needs to contain
the description of the property.
• Rule 6: Limitation - when suit is brought after the expiration of the limitation period.
• Rules 7 and 8: Reliefs -
• Declaration
• Monetary Reliefs
• Specific Performance
• Costs
• Interim orders like Temporary Injunction
• Equitable relief- Any other order in the interest of justice, equity and good conscience
which this Court may deem fit
Return of Plaint: Rule 10
• When?
At any stage of the proceedings, a plaint may be returned.
• Under what circumstances?
Lack of PJ/TJ/Sub-matter jurisdiction.
• Which Court?
It is returned by the court in which the said Plaint is filed.
Procedure
10 A - the trial court follows the procedure
10 B - when the appellate court confirms the return order and follows the procedure for
return.
Important Points:
• The judge returning the plaint should make endorsements regarding
i. date of presentation;
ii. Date of return;
iii. Name of the party presenting it; and
iv. Reasons for returning it.
• Either party may make an application for such RETURN
• Order of returning the plaint is APPEALABLE
Rejection of Plaint: Rule 11
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• When COA not disclosed.

(A says he has been defamed without stating that the statement made was false, published
and has lowered his reputation)
• Relief is undervalued
• Stamp paper
• Suit barred by any law
• Not filed in duplicate
• RULE 9 not complied with
Factors to consider while rejecting the plaint
1. Court does not go into the merits.
2. Prima facie opinion
3. Order given under 7/11 is a deemed decree and is appealable.
4. Does not operate as a bar of res judicata (dismissal in default).
Case Laws:
T Arivandanam v. T.V. Satyapal (1977) 4 SCC467 (Rejection of Plaint based on frivolous
litigation)
Facts & Procedural History: The petitioner who contested an eviction proceeding against
him, lost it, appealed against it, lost it again, moved a revision which was rejected by the High
Court. He was granted a 6 months time to vacate the premises. After this, he filed an
application praying for further time to vacate. Pending that proceeding, he filed a fresh suit
for declaration that the order of eviction has been obtained by fraud and collusion and sought
an injunction against the execution of that eviction order. The High Court granted another 5
months time to vacate the premises on the basis that the suit for injunction would be
withdrawn by the petitioner. After withdrawing that, he filed another suit for ex parte
injunction which was not granted, and the appeal went unsuccessful. The petitioner then
came to the High Court in revision which was dismissed on merits. The petitioner
undauntedly applied for an SLP.
Issue: Whether the plaint is vexatious and meritless and ought to be rejected under Order 7
Rule 11?
Judgment: If on a meaningful and informal reading of a plaint, it is manifestly meritless in
the sense of not disclosing a clear right to sue, it ought to be rejected under Order 7 Rule 11.
Here, the court was satisfied that the callous petitioner had been indulging in a series of legal
proceedings to evade an eviction order passed against him and hence his plaint was inspired
by vexatious motives and altogether groundless.
P.V. Gururaj Reddy v. P. Neeradha Reddy (2015)8 SCC 331 ( Rejection of Plaint for non-
disclosure of cause of action)
Facts: Plaintiffs residing abroad reposed trust in their relatives in India and made funds
available to them to purchase two immovable properties in India in the name of plaintiffs.
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Later on, they came to know that without their knowledge, the sale deed of first property
was executed in the name of one of the defendants, and second property was purchased
jointly in the name of one plaintiff and one defendant.
Procedural History: Thus, plaintiffs brought two separate suits for declaration of title,
possession, cancellation of sale deed, etc. The court rejected the plaints in both suits on the
grounds of not disclosing cause of action. Plaintiffs, therefore, appealed against the or der of
rejection.
Issue: Whether the plaints in both the suits should be rejected under Order 7 Rule 11 for not
disclosing cause of action?
Judgment: Plaint can be rejected only if the averments made therein do not disclose a cause
of action or on a reading thereof the suit appears to be barred under any law. In this case,
reading the plaint as a whole and proceeding on the basis that the averments made therein
were correct, it could not be said that the pleadings of both suits ex facie disclosed that said
suits were barred by limitation or any other provision of law or that they did not disclose a
cause of action. Thus, the plaints ought not to be rejected under Order 7 Rule 11 CPC.

Order VIII – Written Statement

Key Concepts:

• Essentials of filing a WS
• Evasive & Specific Denial
• Set Off & Counter Claim
• Subsequent Pleadings

Essentials:
1. WS means a reply to a Plaint.
2. When there are several defendants, whether a common WS is filed or separate WS for
each defendant?
• common written statement may be filed by all the defendants which is signed by all
and verified by one of them who is aware of all the facts. (e.g. A files a suit against B
and C who are partners of an unregistered partnership firm alleging them for breach
of contract. Both B and C file a common Written Statement in the said proceedings
and such a WS shall bind both B and C.)
• However, a WS filed by one defendant does not bind the other defendants. [e.g. P files
a suit to ban Padmaavat against Sanjay Leela Bhansali Production (Defendant No. 1 )
and CBFC (Defendant 2). Separate WS are filed by both the defendants. In this case,
the WS of Defendant No. 1 does not bind Defendant 2.]
Time Limit to file the WS
Time Limit to file a WS:- (Rule 1)

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a. 30 days from the date of service of summons which can be extended to a further period of
60 days by a reasoned order. [ 30+ 60=90 days in total]
b. In commercial matters- 30+90= 120 days
(under the Commercial Courts Act, 2015)
Note: After the expiration of the said period of 120 days, the defendant shall forfeit his right
to file the WS.
Production of all documents: 1A
When a defendant bases his defence upon a document or relies upon any document in his
possession, he shall produce all such documents in Court with the WS
If a particular document ought to be produced in court by the defendant but is not produced.
Then such document, cannot be received in evidence unless permission of court is taken.
The above rule does not apply to the following documents: -
• Documents reserved for cross-examination of Plaintiff’s witness.
• Documents handed over to a witness merely to refresh his memory.
Evasive and Specific Denial:
• New facts must be specifically pleaded. (Rule 2)
- All preliminary objections such as non-maintainability of suit.
- The disputed transaction being void or voidable.
- Defendant’s side of story.
• The denial must be specific. (Rule 3)
- I deny; I do not admit; I admit
• Denial should not be evasive or vague (Rule 4)
e.g.1 :-
A in his plaint makes a statement that B owed him Rs. 1000 and in the WS, B, in his denial
may state:-
I do not owe Rs. 1000 to A
Or,
I do not owe A, Rs. 1000/- or any part thereof. (Specific Denial)
Example 2:
Plaint- A has committed fraud, forgery and misappropriation of funds.
WS- A denies committing fraud, forgery and misappropriation of funds.
or

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WS- A denies committing fraud and/or forgery and/or misappropriation of funds. (Fool
proof denial)
Effect of evasive denial:- Rule 5(1) - Doctrine of Non-Traversal (if not denied, accepted)
Every allegation of fact in the plaint, if not denied specifically, or stated to be not admitted in
the pleading of the defendant, shall be taken to be admitted.
It is a well settled position of law that where a material averment is passed over without
specific denial, it is taken to be admitted.
Other point: Where the defendant has not filed a pleading, it shall be lawful for the court to
pronounce judgment on the basis of the facts contained in the plaint, except against a person
with disability. Rule 5(2)
Illustration 1:
1. Plaint- A alleged that B offered a bribe of Rs. 5000/- to the manager of A on 15th Jan 2018
in Lodhi Garden, Delhi.
2A. Written Statement: B stated the following:
“ I deny offering Rs. 5000/- to the manager of A on 15.1.2018.”
2B. “ I deny offering Rs. 5000/- or any sum, on any day, at any place, to the plaintiff’s manager
as alleged or at all.” (correct)
Illustration 2:
1. Plaint- A alleged that B offered a bribe of Rs. 5000/- to the manager of A on 15th Jan 2018
in Lodhi Garden, Delhi.
2A. Written Statement: B stated the following:
“ I deny offering Rs. 5000/- to the manager of A on 15.1.2018.”
2B. “I deny offering Rs. 5000/- or any sum, on any day, at any place, to the plaintiff’s manager
as alleged or at all.” (correct)
Set Off – Rule 6
• Set off meaning- Black Law Dictionary- “Debtor’s right to reduce the amount of a debt,
by any sum which the creditor owes the debtor”
• Where in a suit for recovery of money, the defendant claims to set off against the
plaintiff’s demand of any ascertained money legally recoverable by him from the
plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, then the
defendant may at the first hearing of the suit, but not afterwards, unless, permitted
by the Court, present a WS containing the particulars of the debt sought to be set off.
• Effect of set off: The WS shall have the same effect as a plaint in a cross suit so as to
enable the court to pronounce a final judgment in respect both the original claim and
of the set off.
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Essential elements of Rule 6

• When the suit filed by the Plaintiff is for recovery of money- (X amount)
• And the Defendant also has an ascertained money due from the plaintiff (Y amount)
• Such an ascertained sum of money (Y amount) is legally recoverable from the plaintiff.
• Such an ascertained sum of money (Y amount) shall not exceed the pecuniary limits
of the jurisdiction of the court.
• It must be recoverable by the defendant or all the defendants, if more than one from
the plaintiff or from all the plaintiffs.
• In the set off, both the parties should fill the same character as they fill in the plaintiff’s
suit.
Types: Legal & Equitable
Note:- Claim for set off should not be time barred.
Court fees is paid by the Defendant on the amount which is claimed to be set off
Distinction between legal and equitable set off
Legal Set off Equitable Set off
• Ascertained sum of money • Unascertained sum of money
• Under Order 8 Rule 6 • Section 151
• Right • Discretion of court
• Cross-demands may or may not • Cross demands necessarily have to
arise out of the same transaction arise from the same transaction.
• Court fees required to be filed by the • No court fees.
Defendant • E.g.:-Damages

Counter Claim – Rules 6A to 6G

• Inserted in 1976 with an intention to avoid unnecessary multiplicity of proceedings.
• Counter Claim is an independent/ separate claim made by the defendant in a suit
against the Plaintiff when there is a cause of action in favour of the Defendant against
the plaintiff.
• It may be in addition to a set off.
• A defendant may set up by way of CC, any right or claim in respect of action accruing
to the defendant, against the plaintiff either before or after the filing of the suit.
• CC should be within the pecuniary limit of the court.
Introduced in 1976:
A sues B for breach of contract.
B has a case that the said contract is Void.
Prior to 1976, there would have been two suits- A v. B and B v. A.
Current Scenario:
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• One composite suit A v. B in which A claims damages for breach of contract and B can
file a Counter Claim of getting a declaration of the said contract being Void.
• B pays court fees for the counter claim.
• There is one composite judgment deciding the claim and the Counter claim.
• Plaintiff files its WS to the Counter claim under Order 8 Rule 1.
• Even when the Plaintiff’s suit is stayed/discontinued/withdrawn- the CC can go on as
a separate proceeding.
• CC shall not be time barred.
How to draft a Counter Claim and Set off?
A Counter Claim can be contained either :-
a. In the WS filed under Order 8 Rule 1
b. By amending the WS under Order 6, Rule 17 and adding CC.
c. In a subsequent pleading under Order 8 Rule 9.
Set off Counter Claim
• The original suit must be a money • Original suit may be any suit.
suit. • CC need not arise out of the same
• Must be for an ascertained sum transaction.
(Legal set off) or it must arise out of • It is an independent claim
the same transaction (equitable set
off).
• Set off is a ground of defence.

Subsequent Pleadings – Rule 9

• No pleading after the WS of a defendant other than reply/defence to set off or counter
claim by the plaintiff should be filed by the parties.
• However, by taking the due permission of the Court, a party may file a subsequent
pleading such as Replication (also known as a Rejoinder) or Reply to the replication
(Sur-rejoinder)
Order 8 Rule 10
Where any party fails to file a WS either under Rule 1 or Rule 9 within the permitted time
frame, the Court shall pronounce judgment and decree against the defendant or make such
order in relation to the suit as it thinks fit.

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Appearance of Parties and Consequences of Non-Appearance

Order IX

Key concepts:

 Rule regarding appearance of parties

 Consequences of their non-appearance
 Remedy for ex-parte order/decree
Rule 1: Appearance of Parties

“Parties to appear on day fixed in summons for defendant to appear and answer— On the
day fixed in the summons for the defendant to appear and answer, the parties shall be in
attendance at the Court-house in person or by their respective pleaders, and the suit shall
then be heard unless the hearing is adjourned to a future day fixed by the Court. “
Rule 12: Consequence of non-appearance
Where a plaintiff or a defendant, who has been ordered to appear in person, does not
appear or show sufficient cause for non-appearance, the Court may
If it is the Plaintiff - Dismiss the suit
If it is the Defendant - proceed ex parte
Rule 3: Where neither party appears
“Where neither party appears when the suit is called on for hearing, the Court may make an
order that the suit be dismissed. “
Rule 4:
The dismissal of the suit under Rule 3 does not bar the Plaintiff from filing a fresh suit on
the same cause of action.
AND
If the Court is satisfied that there was sufficient cause for the non-appearance for the
plaintiff, it shall pass an order setting aside the dismissal of the suit
Rule 6: Where only plaintiff appears

Where the Plaintiff appears and the defendant does not appear, the plaintiff has to prove
the service of summons on the Defendant.

If Plaintiff can prove service of summons, the Court can proceed ex-parte.
When?

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 This rule is confined to the first hearing and does not per se apply to subsequent
hearings
 The absence of the defendant does not mean that Court will not have to do justice;
the plaintiff may still have to prove his case and only then his prayers will be
granted.
Rule 8: Where only Defendant appears
Where the defendant appears and the plaintiff does not appear when the suit is called on
for hearing, the Court shall make an order that the suit be dismissed
unless the defendant admits the claim or part thereof
in which case the Court shall pass a decree against the defendant upon such admission, and,
where part only of the claim has been admitted, shall dismiss the suit so far as it relates to
the remainder.
Res Judicata:

 Applies!
 The plaintiff cannot file a fresh suit on the same cause of action
 Rule 9
 But he may apply for an order to set the dismissal aside, and if he satisfies the Court
that there was sufficient cause for his non-appearance when the suit was called on for
hearing, the Court shall make an order setting aside the dismissal upon such terms as
to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit.
Sufficient cause:
 Not defined
 Depends on facts and circumstances
REOPENING OF CASE
 Is mandatory when sufficient cause is shown
 Is directory when sufficient cause is not shown
Rule 7:
Procedure where defendant appears on day of adjourned hearing and assigns good cause for
previous non-appearance— 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
non-appearance, he may, upon such terms as the Court directs as to costs or otherwise, be
heard in answer to the suit as if he had appeared on the day, fixed for his appearance.
Where summons is not served (properly)
Natural justice- parties must have fair and reasonable opportunity to present his case,
NOTICE is required for that!
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Rule 2:
Where on the day so fixed it is found that the summons has not been served upon the
defendant in consequence of the failure of the plaintiff to pay the court-fee of postal
charges (if any) chargeable for such service, or to present copies of the plaint or concise
statements, the Court may make an order that the suit be dismissed :
Provided that no such order shall be made, if, notwithstanding such failure the defendant
attends in person (or by agent when he is allowed to appear by agent) on the day fixed for
him to appear and answer
Rule 5:
Dismissal of suit where plaintiff after summons returned unserved, fails for 7 days to apply
for fresh summons—
(1) Where after a summons has been issued to the defendant, or to one of several
defendants, and returned unserved the plaintiff fails, for a periods of one month from the
date of the return made to the Court by the officer ordinarily certifying to the Court returns
made by the serving officers, to apply for the issue of a fresh summons the Court shall make
an order that the suit be dismissed as against such defendant,
unless the plaintiff has within the said period satisfied the Court that—
(a) he has failed after using his best endeavours to discover the residence of the defendant,
who has not been served, or
(b) such defendant is avoiding service of process, or
(c) there is any other sufficient cause for extending the time,
in which case the Court may extend the time for making such application for such period as
it thinks fit.]
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.
Exparte Decree
 Same value as a bi-parte decree
 The defendant against whom an ex-parte decree has been passed has the following
remedies:
-apply for setting aside of the decree under Order 9-Rule 13
-prefer an appeal, sec 96(2)/115
-Review-order 47, rule 1
-file a suit on the ground of fraud
Rule 13:
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In any case in which a decree is passed ex parte against a defendant, he may apply to the
Court by which the decree was passed for an order to set it aside; and if he satisfies the Court
that the summons was not duly served, or that he was prevented by any sufficient cause from
appearing when the suit was called on for hearing, the Court shall make an order setting
aside the decree as against him upon such terms as to costs, payment into Court or otherwise
as it thinks fit, and shall appoint a day for proceeding with the suit;
Provisions:
Provided that where the decree is of such a nature that it cannot be set aside as against such
defendant only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground
that there has been an irregularity in the service of summons, if it is satisfied that the
defendant had notice of the date of hearing and had sufficient time to appear and answer the
plaintiff's claim
Explanation.—Where there has been an appeal against a decree passed ex parte under this
rule, and the appeal has been disposed of an any ground other than the ground that the
appellant has withdrawn the appeal, no application shall lie under this rule for setting aside
that ex parte decree. (RJ)
Sufficient cause:

 Bona fide mistake as to date of hearing

 Late arrival of train
 Sickness of pleader
 Death of a relative
 Imprisonment of party
Not sufficient cause:

 Negligence
 Counsel is busy in another court
 Willful abstinence
 Attending another suit of high valuation

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Procedure in case of multiple plaintiffs or defendants – Rule 10 & 11:

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10. Procedure in case of non-attendance of one or more of several plaintiffs— Where there
are more plaintiffs than one, and one or more of them appear, and the others do not appear,
the Court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to
proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks
fit.
11. Procedure in case of non-attendance of one or more of several defendants— Where there
are more defendants than one, and one or more of them appear, and the others do not appear,
the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with
respect to the defendant who do not appear.

Settlement of Issues and Determination of Suit on Issues of Law

or on Issues Agreed Upon
Order XIV
First hearing: (Orders X to XIV)
 Not defined
 After the pleadings are complete when the Court asks both parties to appear for
framing of issues
 The first day when the court applies its mind to the case
What is an issue?
 Issue means point of question.
 Issues arise when a material proposition of fact or law or both is affirmed by one
party and denied by the other.
Kinds of Issues: Rule 1(4)
-Issues of Law (Whether oral agreement is valid in law?)
-Issues of Fact (Whether an agreement took place in January between A and B?)
-Issues may also be a mix of both (Whether the relief under the agreement between A and
B is barred by limitation?)
Rule 2:
(1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall,
subject to the provisions of sub-rule (2), pronounce judgment on all issues.
(2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion
that the case or any part thereof may be disposed of on an issue of law only, it may try that
issue first if that issue relates to—
(a) the jurisdiction of the Court, or

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(b) a bar to the suit created by any law for the time being inforce.
and for that purpose may, if it thinks fit, postpone the settlement of the other issues until
after that issue has been determined, and may deal with the suit in accordance with the
decision on that issue.
Importance of issues:
 Parties are guided on how to lead evidence
 Court has to decide on a point of issue
 Issues are based on material facts only (facta probanda)
 When case goes on appeal, the appellate court deals with issues in trial
ISSUES ARE BACKBONE OF THE SUIT.
ISSUES ARE ALSO LAMP POST WHICH ENLIGHTEN THE PARTIES TO THE PROCEEDINGS
Court frames issues based on: Rule 3
 Allegations made on oath by parties/statements made by their pleaders
 Allegations made in pleadings or answers in interrogation by Court
 Documents produced by the parties.
Amendment of issues:
 Non framing of proper issues is not fatal to the case
 Trial is not vitiated by improper/wrong/defective issues
 Issues can be amended at any stage of the trial
 They may also be amended by Appellate or Revisional Court
 Rule 5

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Interim Relief
Order 17 – Adjournment

General Rule:

When hearing of evidence has once begun, such hearing shall be continued day to day and
the adjournment should be granted only for unavoidable reasons. (Rule 1 proviso)

The provision limiting adjournments is made with the view of avoid the use of this provision
as a dilatory tactic by a party to abuse the process of the court and prolong litigation.
Granting adjournment is a discretion of the court which is exercised judicially and
reasonably in the light of the facts.

Rule 1: Important Points

• Adjournment can be granted at any stage.

• Sufficient cause is to be shown by the party pleading adjournment.
• Court has to record reasons in writing.
• No adjournment shall be granted more than three times to a party during hearing of
a suit. (In extreme and exceptional circumstances, this strict rule does not apply).
• Court shall make order as to costs occasioned by adjournment.

Rule 2: Parties fail to appear on the day fixed after adjournment

• Court may proceed to dispose off the suit under Order IX; or
• Proceed in the absence of a party, where substantial evidence of such party has
already been recorded, as if such party is present; or
• make such other order as it thinks fit.

Rule 3: Court may proceed irrespective of the failure of parties to produce evidence

Where a party that was granted adjournment fails:

• To produce evidence; or
• To cause attendance of witness; or
• To perform any other act necessary for the further progress of the suit, for which time
was allowed,

the court may proceed to decide the suit notwithstanding such failure, or proceed under Rule
2 if all or any of the parties is absent.

Order 38 - Attachment before Judgment (Rule 5 to 13)

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A. Object of Rule 5:-

The object of attachment before judgment is to prevent any attempt on the part of the
defendant to defeat the realisation of the decree that may be passed against him.

B. Conditions precedent of such attachment:- 38 (5) (1)

Where at any stage of a suit, the Court is satisfied that the defendant:-

With an intention to obstruct/delay the execution of any decree that may be passed against
him is :-

• about to dispose of the whole or any part of his property, or

• is about to remove the whole/any part of his property from the local limits of the
jurisdiction of the court.

C. Consequences:- 38(5)(1 and 3)

The court may direct the defendant:-

Either to furnish security of such sum as the court may think fit.

Or to produce and place at the disposal of the court, the said property or the value of the said
property, as and when required.

Or, to appear and show cause why he should not furnish security.

The court may also direct the conditional attachment of the whole property or any portion
thereof.

Note:- if an order of attachment is made without complying with 38(5)(1), such attachment
shall be void.

When is this attachment ordered? – Rule 6

• Only when the defendant fails to show cause as to why he should not furnish security,
or
• When he fails to furnish such security, within the time fixed by the court.

Then, the court may order that the property specified be attached.

Can the attachment be revoked? Rule 6 and 9

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Yes, once the defendant shows such cause or furnishes the required security, then the Court
shall order that the attachment be withdrawn or the court may make such order as it thinks
fit.

When a property has been attached and then the suit is ultimately dismissed, then such
attachment shall be withdrawn. (Rule 9)

Not applicable:-

- Nothing in this Order shall authorize the plaintiff to apply for the attachment of any
agricultural produce nor shall the court order attachment or production of such
produce. (Rule 12)
- Small Causes Court do not have the power to order attachment of any immovable
property. (Rule 13)

General Principles-

• Order of attachment shall be sparingly used.

• It is an extra ordinary remedy.
• The court shall look at the conduct of the parties. For e.g. if after the suit is filed, the
defendant starts to dispose of his properties, then an inference may be drawn
regarding his intention.
• When a property is attached, and later, a decree is subsequently passed in favour of
the plaintiff. Then, it is not necessary for the plaintiff to apply for fresh attachment.
(Rule 11)
• Once an order of attachment is passed- It is appealable + revision also lies.

Order 39 - Temporary Injunctions

General:

• An injunction is a judicial remedy by which a person is ordered to refrain from doing

a certain act or to do a particular act.
• Law relating to injunction is contained in Section 36-42 of the Specific Relief Act and
Order 39 (R 1-5) and Section 151 CPC.
• Specific Relief Act supplements the Civil Procedure Code and provides for Perpetual
and mandatory injunctions.
• And CPC provides for interim and temporary injunction.

Types of injunctions:

A. Perpetual and Temporary

B. Mandatory and Restrictive

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C. Ad-interim and interim

Perpetual Injunctions:

• Meaning- It is an injunction granted by the judgment which finally disposes of the

Suit.
• Section 37 of the Specific Relief Act, provides that a perpetual injunction can only be
granted by a decree made at the hearing and upon the merits of the suit.
• Section 38 of Specific Relief Act provides the circumstances when a perpetual
injunction may be granted.
- When the defendant invades or threatens to invade the plaintiff rights or enjoyment
of property
- Where the invasion is such that compensation of money would not afford adequate
relief. (san disk)
- Where there exists no standard for ascertaining the actual damage caused or likely to
be caused, by the invasion. (restaurant-loud music) (factory-pollution)

Mandatory Injunction- Section 39 of Sp. Relief Act

Mandatory injunction - The object of mandatory injunction is to restore things to the

original condition and not to create new state of things.

It is an exceptional remedy, one which is to be applied with greatest safeguard, for the
prevention of waste.

Section 39:- When to prevent the breach of an obligation, it is necessary to COMPEL the
performance of certain acts which the court is capable of enforcing, the court may in its
discretion, grant an injunction to prevent the breach complained of.

E.g.- A has a right to enter or exit through the door of his room. Now B erects a wall of bricks
in front of the door of A’s room. Due to this the right of entry or exit through the door for A
is infringed.

• The court can restrain B permanently from further erecting the wall. This is perpetual
injunction.
• The court may also require B to demolish the wall which has already been erected by
him. It is a positive action on part of B.

Interim Orders:

Interim means ‘ for the time being’; ‘in the meantime’; provisional or temporary.

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Thus, interim orders are those orders passed by a Court during the pendency of a
suit/proceeding which do not determine the substantive rights and liabilities of the parties
in respect of the subject matter of the suit/proceedings.

After the suit is instituted by the Plaintiff and before it is finally disposed of - the Court may
pass such interlocutory orders as may appear just and convenient.

EXAMPLES- 1. Temporary injunctions under Order 39

2. Payment in Court- Order 24

3. Security for costs- Order 24

4. Commissions- Order 26

5. Arrest before judgment- Order 38

6.Attachment before judgment- Order 38

7. Receiver- Order 40

8. Adjournments – Order 17

Difference between Stay and Injunction

Stay is on legal proceedings and injunction is against a party.

Ad-interim and interim injunction

Meaning:-

Ad-interim Injunction- injunction is granted without finally deciding an application for

injunction and operates till the disposal of the application.

Interim injunction- it is granted while finally deciding main application and operates till the
disposal of the suit or for a specific period.

1. Who may apply?

Either party

2. Against whom?

Always and only against a party to the suit. Not against a third party.
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3. When is it granted?

Triple Tests satisfied.

Prima Facie case; Balance of convenience; Irreparable injury.

And, Yes, grant of injunction is a DISCRETIONARY RELIEF.

Prima facie case:

• The Court must be satisfied that there is a bonafide dispute raised by the applicant.
• That there is an arguable case for trial which needs investigation and a decision on
merits.
• The burden is on the applicant that he has a prima facie case in his favour.

Irreparable injury:

• Irreparable injury does not mean there should be no possibility of repairing the
injury. But it means that the injury must be a material one.
• An injury will be regarded as irreparable where there exists no specific/ fixed
pecuniary standards for measuring damages.

Balance of Convenience:

• The Court must be satisfied that the comparative mischief, hardship, 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 the opposite party by granting it.
• The Court while exercising in granting or refusing injunction should exercise sound
judicial discretion and should attempt to weigh substantial mischief/injury likely to
be caused to the parties if the injunction is refused and compare it with that which is
likely to be caused to the O.P. if the injunction is granted.

Order 39 (Rule 1)- Cases in which T.I may be granted

Where in any suit, it is proved by affidavit or otherwise-

a. That any property which is in dispute in a suit, is in danger of being

wasted/damaged/alienated by any party to the suit or wrongfully sold in execution
of a decree. (karta – HUF- partition suit)
b. That the defendant threatens or intends to remove or dispose of his property with a
view to defraud his creditors. (third party right)
c. That the defendant threatens to dispossess, the plaintiff or otherwise cause injury to
the plaintiff in relation to any property in dispute in the suit. (muscle power)

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Order 39 – Rule 2

Injunction to restrain repetition or continuance of breach

The plaintiff may at any time- after the commencement of the suit- and before or after the
judgment:

apply to the court for a temporary injunction to restrain the defendant from committing the
breach of contract; or injury complained of; or any breach of contract of the like kind arising
out of the same contract or relating to the same property or right.

Duration of the TI granted under Order 39 (1) and (2)

Until the disposal of the suit.

Or,

Specified time/ until further orders.

Consequence of disobedience or breach of injunction- 2A

1. Property of the person guilty of such disobedience be attached.

2. And, detainment in civil prison for a term not exceeding 3 months.
3. No attachment order should remain in force for more than 1 year. However, if breach
continues, the property attached may be sold and out of the proceeds the court may
order such compensation as it thinks fit to the injured party.

Procedure to be followed - In peculiar situation.

• When an application for Temporary injunction is filed under Order 39, the court shall
give notice to the other side.
• However, if the court feels that the object of granting the injunction would be defeated
by delay, the court may not issue notice but may grant an ex-parte ad-interim
injunction.
• When an ex-parte ad-interim injunction is granted, the Court shall record reasons as
to why notice was not issued and shall require the applicant to do the following:
a. Send the order by registered post or by hand, asap along with the copy of the
Application and plaint and affidavit.

Time limit for peculiar situation

Time limit - Where an injunction is granted without giving notice to the opposite party, the
court shall make an endeavour to finally dispose of the application within 30 days from the
date on which such injunction is granted (Rule 3A)
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In all other situations:

• As soon as an application for Temporary Injunction is filed under Order 39, the court
issues notice to the other side.
• The other side appears on the date fixed.
• Both sides contest as to why or why not such injunction be granted.
• The court after hearing both parties, applies the three tests and then passes a
reasoned order.

Injunction order may be varied/discharged/set aside- Rule 4

The aggrieved party (party against whom injunction is ordered) may make an application
under Order 39, Rule 4 for vacation of the said injunction.

1st Situation: where TI granted without giving notice to the other side :

If an application for TI has been allowed in such a case and such application or accompanying
affidavit, a party has knowingly made a false misleading statement- the court shall vacate
such an injunction order.

2 nd Situation: where TI is granted after hearing both the parties;

- Such an injunction shall not be vacated until there is a changed situation or change in
circumstance, or
- If the injunction causes undue hardship on the party.

Options before the aggrieved party:

• Either to file an application to vacate the injunction- same judge, or

• Appeal under Section 104 read with Order 43- WHICH shall lie to the appellate court.

Case law:

Gujarat Bottling Company Limited v. Coca Cola, 1995 SCC (5) 545 (Order 39-
Temporary Injunction)

Facts: There was an agreement for grant of franchise by Coca Cola to Gujarat Bottling Co.
(GBC) to manufacture, bottle, sell and distribute beverages under Coca Cola’s trademarks
restraining GBC from dealing with beverages of any other brand or trademark. In violation
of the terms of the agreement, shares of GBC were transferred to Pepsi without obtaining the
consent of Coca Cola, instead GBC issued notice for terminating the agreement to Coca Cola.

Procedural History: Coca Cola sued GBC and sought interim injunction restraining
transferees of shares of GBC (Pepsi) from using plants of GBC for manufacture, bottling, sale,
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etc. of beverages of Coca Cola. Injunction was granted by the High Court. GBC appealed
against it contending that injunction would cause irreparable loss and unemployment.

Issue: Whether Interim Injunction enforcing negative stipulation in the contract is justified?

Judgment: It was held that grant of injunction is justified as it is intended to prevent Pepsi,
which came in control of GBC, to gain advantage over Coca Cola.

Triple Test Satisfied

Coca Cola, through the negative covenant in agreement restraining GBC from dealing with
any other brand has clearly made out a prima facie case for grant of injunction. In the absence
of injunction, Pepsi would have been free to manufacture its products in the plants of GBC
which would have reduced the share of Coca Cola in the market and the loss of goodwill and
profits could not be adequately compensated by damages. In view of this irreparable injury,
the balance of convenience to grant injunction stands in favor of Coca Cola.

Moreover, since grant of injunction is a discretionary and equitable relief, apart from the
triple test, the court also considers the conduct of the party seeking injunction or the party
seeking to vacate injunction and such party cannot seek relief if it is itself responsible for
bringing in the state of things complained of. Here, conduct of both GBC and Pepsi is to be
blamed as Pepsi deliberately entered into contract with GBC with full knowledge of the terms
of the agreement it had with Coca Cola. GBC acts in an unfair and inequitable manner in its
dealings with Coca Cola by not obtaining its consent before dealing with Pepsi in violation of
the agreement.

Therefore, the discretion of the High Court cannot be interfered with even on ground of
closure of factory or unemployment as the party itself is responsible, prima facie, for the
breach of the contract. Hence, it cannot be permitted to raise this grievance.

Wander v. Antox India (P) Ltd., (1990) Supp SCC 727 (Order 39- Temporary Injunction)

Facts: Wander, proprietor of a medicinal trademark initially manufactured the product in its
own factory and later on entered into an agreement with Antox for its manufacture under
the same trade mark by Antox and sale of the entire production to Wander. Wander also gave
undertaking before the Drug Controller that it would not authorize the use of its trade mark
by any other company and on that basis manufacturing license was granted to Antox with
the stipulation that the product should be under registered trade mark of Wander. This
agreement was later on rescinded by Wander and separate manufacturing arrangement was
entered into with another company.

Procedural History: Antox sued Wander claiming that it had acquired a right in the trade
mark by being a continuous user and also sought temporary injunction restraining Wander
from passing off their product as that of Antox. Court framed the issue whether there was a
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prima facie case on which Antox could be held entitled to restrain Wander and the other
company from manufacturing and marketing goods under trade mark and whether on
considerations of balance of convenience and comparative hardship, temporary injunction
should be issued? Single Judge of the High Court refused the injunction but on appeal,
Division Bench granted the same. Thus, Wander appealed to Supreme Court.

Issue: Whether the appellate court is justified to interfere with the exercise of discretion by
the court of first instance?

Judgment: The appellate court will not interfere with the exercise of discretion by the court
of first instance and substitute its own discretion except where the discretion is shown to
have been exercised arbitrarily, or capriciously or perversely or where the cou rt had ignored
the settled principles of law regulating grant or refusal of injunction. Therefore, present case
is not an appropriate case where appellate bench could have interfered with the discretion
exercised by the Single judge as the Single judge had passed a reasoned order after hearing
the parties and considering the tests for granting injunction which Antox failed to fulfill.

Order 40 - Appointment of Receiver

Meaning:

Not defined in Code. It means an impartial person appointed by Court to collect and receive
rents, profits as well as who manages, preserves, protects the property etc. while the
suit/proceedings are pending.

Read Rule 1 from bare Act.

Who is appointed as a receiver?

Independent/disinterested/impartial person.

Remuneration- Rule 2

The court fixes the remuneration of such receiver.

Duties- Rule 3

Submit accounts; pay amount due from him; responsible for any loss occasioned to the
property by his wilful default or gross negligence; execute documents

Enforcement of his duties- Rule 4

The court may direct his property to be attached and may sell his property and the proceeds
are then used to make good any amount found to be due or any loss occasioned by him.
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Cardinal Principles:

• Order appointing a receiver is appealable plus a revision also lies.

• Appointment of a receiver is a discretionary power of court.
• A receiver should not be appointed unless there is a strong prima facie case in favour
of the plaintiff.
• Generally, a receiver is appointed in cases where the property is not in anybody’s
possession. Then it will be in common interest of all the parties to appoint a receiver.

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JUDGMENT, DECREE, COSTS & INTERESTS

Concept-wise key provisions:

• Judgment- Sections 2(9) & 33, Order XX (Rules 1-5A)

• Decree- Sections 2(2) & 33, Order XX (Rules 6-8); Special decrees - Order XX (Rules
6-19); Preliminary & Final Decree: Meaning & Distinction (Example: Order XX Rule
15); Application for copies- Order XX (Rules 6B and 20)
• Costs- Section 35, 35A, 35B; Order XXA
• Interest- Section 34

Judgment & Decree

JUDGMENT:

Definition- Section 2(9)

• Means the statement given by the Judge of the grounds of a decree or order
• Intimated to parties and to the world
• In open court
• Not a secret document

Pronouncement of Judgment: Order XX read with Section 33

Section 33 - The Court, after the case has been heard, shall pronounce judgment, and on such
judgment a decree shall follow.

Relevant Rules

Rule 1 - The Court, after the case has been decided shall pronounce judgment in open Court
either at once or, as soon thereafter as may be practicable, on some future day; and when the
judgment is to be pronounced on some future day, the Court shall fix a day for that purpose,
of which due notice shall be given to the parties or their pleader .

Judge need not read out the whole judgment.

Rule 2 - A judge may pronounce a judgment written by his predecessor .

Rule 3 - Alteration

Judgment has to be dated and signed by the Judge. Once signed, it cannot be altered by the
Court except for:

• Clerical mistakes/typo- Section 152

• Review- Section 114
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Rule 4 - Contents of Judgment

(1) Judgments of a Court of Small Causes need not contain more than the points for
determination and the decision thereon.

(2) Judgments of other Courts—Judgments of other Courts contain:

• a concise statement of the case,

• the points for determination,
• the decision thereon,
• and the reasons for such decision

Rule 5 - Court to state its decision on each issue to the extent it is sufficient for the decision
of the suit.

Rule 5A – In matters subject to appeal, the court is to inform parties, as to where an appeal
lies and about period of limitation for filing it, in cases where parties are not represented by
pleaders.

Amendment of 1976

• Time limit was prescribed for delivery of judgment after the conclusion of the hearing
of the case
• Within 30 days from conclusion
• If not practicable, due to extraordinary situation, then within 60 days of conclusion
• Due notice for date fixed for judgment has to be given to party or pleader
• Deadline not applicable to High Courts

Basis of Judgment

• Based on grounds and points in pleadings/arguments

• Findings on all the points raised by the parties
• Language should be dignified and restrained
• Disparaging and defamatory remarks not to be made
• If party thinks that the proceedings have not been correctly recorded, or there has
been some error, it should approach the same court and the Judge to have it amended
or deleted

Copy of Judgment: Rule 6B

• After a judgment is pronounced, copies of the judgment should be made available to

the parties immediately on payment of charges
• Important for appeal etc.
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Judgment must reflect submissions made by Pleaders/Counsel

• ‘Highly improper’ if arguments are not referred in the judgment

• Necessary because if a particular point is not reflected in the judgment then superior
court will not know that this argument was made in the Court below.
• Authorities cited by counsel (some may be chosen) and reflected in the judgment

JUDGMENT SHOULD BE A SELF CONTAINED DOCUMENT

DECREE:

• Definition
• Section 2(2)

"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.

Kinds of Decree

• Preliminary Decree
• Final Decree
• Consent Decree
• Ex-parte Decree etc.

Necessity of a Decree

• Necessary in the ultimate outcome of the suit

• An appeal lies against a decree and not against judgment

Rule 6A

(1) The last paragraph of the judgment shall state in precise terms the relief which has been
granted by such judgment.

Every endeavour shall be made to ensure that the decree is drawn up as expeditiously as
possible, and, in any case, within fifteen days from the date on which the judgment is
pronounced; but where the decree is not drawn up within the time aforesaid, the Court shall
if requested so to do by a party desirous of appealing against the decree, certify that the
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is strictly prohibited.
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decree has not been drawn up and indicate in the certificate the reasons for the delay, and
thereupon—

an appeal may be preferred against the decree without filing a copy of the decree and in such
a case part of the judgment shall be treated as the decree; and

Contents of Decree – Rule 6

The decree shall agree with the judgment;

It shall contain:

• the number of the suit,

• the names and descriptions of the parties,
• their registered addresses,
• and particulars of the claim and
• shall specify clearly the relief granted or other determination of the suit.
• 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.

Decree in certain special cases – Rules 9-19

Decree for recovery of immovable property— Where the subject-matter of the suit is
immovable property, the decree shall contain a description of such property sufficient to
identify the same, and where such property can be identified by boundaries or by numbers
in a record of settlement or survey, the decree shall specify such boundaries or numbers.

Another example: Preliminary and Final Decree

15 . Decree in suit for dissolution of partnership— Where a suit is for the dissolution of
partnership, or the taking of partnership accounts, the Court, before passing a final decree,
may pass a preliminary decree declaring the proportionate shares of the pa rties, fixing the
day on which the partnership shall stand dissolved or be deemed to have been dissolved, and
directing such accounts to be taken, and other acts to be done, as it thinks fit.

Costs & Interest

COSTS:

• Discretion of the Court- who and how much?

• Costs follow the event.

KINDS:

1. General costs
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2. Miscellaneous costs
3. Compensatory costs/Exemplary-Punitive costs
4. Costs for causing delay

General Costs – Section 35

Object- to secure the expenses incurred by a party in litigation

No for making profit out of it or use it for punishing a party

Cost follows event- means costs go to the successful party

LOSER PAYS! (If court does not follow it-then reasons must be given)

But Court may not award costs (discretionary) for example when the Court did not like the
conduct of the Party

Miscellaneous Costs – Order XXA

Specific provision – Power of Court to grant costs for specific expenses:

• Giving notice, typing charges, inspection of goods, producing witness, obtaining

copies
• Exhaustive list in the order

Compensatory Costs – Section 35A

• May be better described as Exemplory or punitive

• Exception to the Rule u/s 35 (where cost only indemnifies)
• Here it is not compensation but a punishment

Conditions

1. Claim or defence must be false or vexatious.

2. Objection must have been taken by the opposite party about 1.
3. Claim must have been disallowed or withdrawn or abandoned.

Maximum amount – Rs. 3000.

This does not affect any other costs

No appeal if costs imposed (only revision) but appeal lies if no costs

Costs for Delay – Section 35B

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• Added by amendment of 1976 (to stop delays)

• To check delaying tactics
• This may be imposed irrespective of outcome of litigation
• Amount and deadline as per discretion of court
• May be given to opposite party, bar association or kept by Cour t

INTEREST:

• Meaning- charge on money borrowed.

• Like mesne profits for money

Award of interest:

• As per discretion of Court

• Practical- party wants 18-24 percent but generally gets prevailing rate of interest

Kinds of interest:

1. Prior to filing of suit

2. Pendent lite- from date of institution of suit to the date of decree
3. Interest from date of decree till payment (execution)

1. Interest prior to suit

• CPC has no application

• It is a matter of substantive right
• Awarded when there is agreement, usage, statutory provision etc.

2. Interest Pendent Lite

• Discretion of the Court

• Sound judicial principle must be applied
• Court decides to rate- generally contractual rate itself

3. Interest from date of Decree

• Discretion of court
• Provision to sec 34- empowers Court to grant further interest at rate exceeding 6
percent but not exceeding contractual rate
• Court generally grants running rate of interest

Example:

• Date of money due- 30/05/17

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is strictly prohibited.
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• Date of institution of Suit-30/05/18

• Date of decree-5/08/19
• Date of payment-04/10/19

Contractual rate- 7%

Bank rate-6.2%

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this course – not for circulation. Unauthorized reproduction, distribution, or use
is strictly prohibited.
 APPEALS
Key Concepts:
• Appeals from Original decree (first appeal) - Sections 96-99A, 107, Order XLI Rules 3A, 23-25, 27
• Appeals from Orders (appealable orders) - Sections 104-106, Order XLIII Rule 1
• Appeals from Appellate decree (second appeal) - Sections 100-103
• Appeals to Supreme Court - Section 109, Order XLV + Article 136
• Appeals under Inherent powers of the court - Section 151

Concept
Right to Appeal:
• Not an inherent right
• Not a fundamental right
• A statutory right!

First Appeal: First of the two chances to challenge the decree

• Not defined in CPC
• Means removal of a cause from inferior court to a superior court to test the soundness
of the decision

3 ingredients:
• A decision by a judicial or administrative body
• An aggrieved person (not necessarily a party)
• A reviewing body, ready to entertain such appeal

Appeals: what can be done?

• Reverse the decision
• Modify it
• Dismiss it
1 st and 2 nd Appeal:
• 1st appeal is from decision of trial court whereas 2nd appeal is from decision of appellate
court
• 1st appeal to any court (including HC) whereas 2nd appeal only to HC
• 1st appeal can be on question of law or fact but in 2nd appeal only substantial question of
law
First Appeal
Section 96:
• Right to appeal from decree passed by original court
• Can appeal from ex parte decree
• Cannot appeal from consent decree (in agreement, compromise or conduct)
 • Cannot appeal if right has been waived in clear and unambiguous terms
• No appeal in petty cases (added by 1976 amendment) amount?
Judgment and Decree:
Appeal against? Decree - always
But sometimes against Judgment (Order XX Rule 6A)
Memorandum of Appeal: Order 41, R1 and R2
• Document containing grounds on which such appeal is invited
• Helps Court in determining issues and limitation
• It must state grounds for filing appeal
• Must be signed by appellant or pleader
• Accompanied by a certified copy of decree/judgment (in certain cases)
• In case of money decree, appellant must deposit decretal amount as security
Rule 3 and 4:
If Memorandum is not in the correct form, court may reject or amend the same. If rejected, reasons
will be recorded.
If there are more than 1 plaintiff/defendant then decree may be reversed or varied against all.
Appeal is valued as well for court fees.
Rule 9 Order 41:
• Court of original decree shall receive Memo of Appeal and endorse - note the date of
presentation and record it in the register of appeals
• Amendment
• Salem Bar Association Case: purpose of this change?
• How will the papers go to the appellate court?
Limitation Act:
HC- 90 days from the date of decree
Any other Court- 30 days from date of decree
Procedure under appeal:
• If appellant fails to appear- ex parte decree against him- Rule 17
• Re-admit appeal if dismissed under Rule 11 or 17 if shown sufficient cause
• If a party to the original suit is not party to appeal (but interested in appeal) then court can
make such a party respondent in appeal (Rule 20).
Powers of Appellate Court
Section 107, Rules 23-29, 33 of Order 41
• Dispose off a case finally- 107(1)a, Rule 24-if evidence is satisfactory
• Power to remand- 107(1)b, Rules 23-23a- If AC reverses decree because the suit was
decided on preliminary point without recording findings on other issues, then AC may send
 it back to trial court to decide other issues and determine the suit. 1976 amendment- case
may be remanded, in the interests of justice, even if it was decided on merits.
• Frame issues and refer them to trial- where the lower court has done abstinence in
performing its functions of framing any issue or trying any issue or determining any
question of fact which is essential to be determined for the suit to be disposed off on merits.
In all these situations the appellate court has the power to frame issues for the lower court
and may even while referring these for trial, fix any time limit as well. It is provided under
section 107(1) (c).
• To take additional evidence-
- Otherwise, what we call it a general rule is that the appellate court has to decide such
appeal on the evidence given by parties at the lower courts.
- But this exception as provided under Section 107(1) (d) has three conditions which are to
be fulfilled by the parties producing such additional evidence in the appellate court which
are:
- firstly, that the person’s seeking such an admission of additional evidence should be
able to establish the reason as to why he could not produce it at first instance.
- Other condition is that the party affected by the admission of additional evidence
should have an opportunity to rebut such additional evidence.
- Thirdly, the additional evidence must be relevant for determination of the issue.
Order 41 Rule 27
27 . Production of additional evidence in Appellate Court— (1) The parties to an appeal shall not be
entitled to produce additional evidence, whether oral or documentary, in the Appellate Court, But
if—
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought
to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise
of due diligence, such evidence was not within his knowledge or could not, after the exercise of due
diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to
enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow
such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall
record the reason for its admission.
Decree of Appellate Court:
• Rules 35-37.
• Must contain:
♦ Date and day of judgment
♦ Number of appeal, description of parties
♦ Relief granted
♦ Costs
♦ Date and sign
Case Law:
A Andisamy Chettiar v A Subburaj Chettiar (2015) 17 SCC 713 (Power of Appellate Court – Section 107
read with Order 41 Rule 27)

Facts: Andisamy (A) and Subburaj (S) were sons of Ayyappan Chettiar (AP) who died leaving
behind a property which was possessed by A. A filed a suit for permanent injunction against S
restraining him from interfering in peaceful possession of A. A also pleaded that AP executed the will
in respect of the property in his favor.

S, in his written statement disputed the will and alleged that A had filed for permanent injunction
to evade partition. S also mentioned that AP has three daughters out of which two had died intestate,
so the suit is bad for non-joinder of the daughter and legal heirs of predeceased daughters.

Considering the pleas of both sides, following issues were framed by the trial court:

Q1. Whether AP executed will in favor of plaintiff in respect of the property in suit?

Q2. Whether the plaintiff is entitled to permanent injunction?

Q3. Whether the plaintiff is entitled to other relief, if any?

Procedural History: Trial court decided in favor of S holding that A failed to prove that AP
executed the will in respect of the property in his favor. A appealed before the Sub-Judge and filed an
application for scientific verification of AP’s signatures on the will which was allowed by the Sub-
Judge. S challenged the order of this first appellate court, allowing additional evidence, by filing for
Revision before the High Court. The High Court allowed the same to which A filed an appeal against
the Supreme Court.

Issue: Whether the first appellate court was right in allowing additional evidence at appellate
stage?

Judgment: It was held that as a general rule the evidence is adduced only before the Trial Court.
However, Section 107(1)(d) read with Rule 27 of Order 41 lays down certain exceptional
circumstances to allow additional evidence before the appellate court. Even though, no application
was moved before the Trial Court seeking scientific examination of the document nor it was to be said
that the plaintiff with due diligence could not have moved such an application to get proved the
documents relied upon by him, but the appellate court itself required the evidence to satisfactorily do
justice between the parties. It was held that the true test, therefore, is whether the appellate court is
able to pronounce judgment on the materials before it without taking into consideration the
additional evidence sought to be adduced.

Second Appeal

Section 100

(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 questio n:

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.

1976 Amendment

Drastically changed the scope

Old section- appeal was allowed from any decree and grounds were interpreted liberally.

PROBLEM-?

After amendment- position?

No second appeal

• 101- no second appeal except on grounds specified in the code

• 102- amended 2002- no second appeal where amount does not exceed Rs. 25,000.

Limitation and Form

• Limitation- 90 days
• Memorandum- which must state the question of law

Case Law:

Santosh Hazari v Purushottam Tiwari (2001) 3 SCC 179 (Scope of Second Appeal is confined to
determination of question of law)

Facts & Procedural History: In 1983, Santosh Hazari (SH) filed a suit for declaration of title,
possession of property and permanent preventive injunction against Purushottam Tiwari ( PT)
alleging that PT illegally dispossessed him from the property in 1981.
PT, in his written statement, denied all material averments and submitted that he was in possession
of property since 1940-41. Therefore, the suit for possession was barred by limitation. He also raised
a plea for adverse possession in his pleading.

Trial court found the ownership of the property to be vested in SH and found that PT dispossessed SH
from the property sometime in 1980-81.

PT appealed to the Additional District Judge who upheld the ownership of property in the name of SH
but found that SH was given possession of the disputed property by the State Government in 1968
after which SH took no steps to dispossess PT from the property. Argument that SH took possession
in 1980-81 was not held tenable. Hence, decree of trial court was reversed.

SH filed second appeal to the High Court which summarily dismissed it holding that the case had been
concluded by findings of fact and that no substantial question of law arose for determination.

SH filed an SLP in the Supreme Court wherein he also submitted an application setting out the
substantial questions of law on which the High Court ought to have heard the appeal.

Issue: Whether the High Court can entertain a second appeal in the absence of a substantial question
of law?

Judgment: The first appellate court continues to be the final court of facts; pure findings of fact
remain immune for challenge before the High Court in second appeal. The existence of a substantial
question of law is a pre-requisite for exercise of jurisdiction under Section 100 of the Code. To be
‘substantial’, a question of law must be debatable, not previously settled by law of the land or a
binding precedent and must have a material bearing on the decision of the case, if answered either
way, in so far as the rights of the parties before it are concerned.

Here, the first appellate court had overturned the finding on the question of possession and
dispossession as alleged by SH and also on the question of adverse possession as pleaded by PT
without recording reasons for such reversal which gave rise to a substantial question of law which
the appellant was under the duty to state in the memorandum of appeal as per Section 100(3). The
High Court having noticed failure on part of the appellant in discharging this statutory obligation, an
opportunity to frame such question should have been afforded to the appellant unless he had
persisted in his default in spite of the deficiency being brought to his notice by the High Court or the
Registry.

It was held that there existed a substantial question of law worth being heard by the High Court i.e.
Whether on the pleadings and material brought on record by PT, the first appellate court was right in
holding that the case of adverse possession was made out by PT and the suit filed by SH was liable to
be dismissed as barred by time, more so when such finding was arrived at in reversal of the findings
of the trial court?

SH’s appeal was accordingly allowed, and the case was remitted to the High Court for hearing and
deciding the second appeal afresh after formulating any other question of law involved in the case.
 Appeals from Orders
Section 104-106
Order 43
List of orders which are appealable
Procedure, limitation and forum - same as appeal against decree by the same court. (first appeal)
*Appealable Orders: Examples- Rule 1(a) Return of Plaint under Order 7 Rule 10, (c) Rejection of
Restoration Application under Order IX Rule 9, (d) Rejection of Application to set aside Ex -parte
Decree under Order IX Rule 13, (r) Order under Rules 1, 2, 2A, 4 or 10 of Order XXXIX, (t) Order of
Refusal under Rule 19 (to re-admit an appeal) or 21 (to re-hear an appeal) of Order XLI, (u) Order
under Rule 23 or 23 A of Order XLI remanding a case, (w) Order under Rule 4 of Order XLVII granting
an application for review.

*Non-Appealable Orders: Orders against which appeal does not lie. Aggrieved has to file for review
or revision or that order can be challenged in an appeal against the decree under which that order
was passed- Order XLIII Rule 1A. Example: Order of Rejection of Review is not appealable (Order
XLVII Rule 7). Order of Rejection of Plaint (Order VII Rule 11) is a deemed decree under proviso to
Section 2(2) but the same is not appealable.

Appeal to Supreme Court

Articles 132, 133 and 134 A of the constitution of India deal with Civil appeals.

Section 109, CPC:

Subject to provisions of SC- an appeal shall lie to SC from any judgment, decree or order in a civil
proceeding of HC, if the HC certifies that:

• The case involves substantial question of law

• The HC opines that SC must DECIDE the question.

Procedure at hearing: Rules of Order 45

• Party who desires to appeal to the SC shall apply by a petition to the court (whose decree
is sought to be appealed from)
• Petition should state grounds of appeal and pray for ISSUE OF CERTIFICATE
• Notice is given to other side
• The court may decide to grant or refuse to grant certificate- try to decide within 60 DAYS.

Inherent powers of the court

Section 151
Saving of inherent powers of the code:- 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 the justice
or to prevent abuse of the process of the court.
Saving clause - not withstanding.
Inherent in courts - this provision is not granting it, only stating it.
Inherent powers of the court (Brahmastra)
• No power over substantive rights
• Only to advance interest of justice
• CrPC counterpart - only for HC.
Conceptual Jurisprudence:
• Civil courts are constituted for administering justice between the parties, and for that
purpose they possess all such powers required to secure the ends of justice or to prevent
the abuse of the process of the court.
• For instance, to secure justice, the court may recall its own orders, correct errors and
mistakes in judgments/decrees/orders, set aside orders passed without jurisdiction, take
notice of subsequent events, restore a suit and rehear it on merits, review its orders, etc.
• Similarly, where a party tries to abuse the process of the court and cause miscarriage of
justice by instituting vexatious, obstructive or dilatory tactics, introducing scandalous
matter in court, practicing fraud on the court to obtain benefits, resorting to multiplicity of
proceedings, etc. the court may take appropriate action under its inherent powers.
Sections 148-153B illustrate 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, the court may enlarge the
said period even if the original period fixed has expired.
- Power to make up deficiency of court fees (Section 149)
The court may allow a party to make up the deficiency of court fees payable on a plaint, memorandum
of appeal, etc. even after the expiry of the period of limitation prescribed for the filing of such suit,
appeal, etc., if it is otherwise filed within the period of limitation.
- Caveat (Section 149A)
- Transfer of Case (Section 150)
Where there is transfer of business from one court to another, the transferee court will have same
powers and duties conferred by the Code upon the transferrer court.
- Amendment of Judgments (Section 152)
- All power to amend (Section 153, 153A, 153B)
Limitation to Inherent Powers/Guiding Principles
Inherent powers cannot be exercised in conflict with what has been expressly provided in the Code.
They should only be exercised in the absence of any specific provision to the contrary curtailing,
denying or withholding the court to exercise such power.
• Inherent powers are to be exercised by the courts in very exceptional circumstances.
• Examples- court cannot invest itself with jurisdiction not vested in it by law, or grant an order of
stay circumventing the provisions of Section 10, reopen a case barred by Res Judicata, set aside
an exparte decree ignoring the provisions of Order 9 Rule 13, enlarge time for a defendant who
has already forfeited his right to file a WS, etc.
 REFERENCE, REVIEW, REVISION
Reference, Review, Revision (Order XLVI; XLVII; Sections 113 -115)

I. Reference (to High Court): Section 113, Order XLVI Rules 1-6

• Empowers subordinate court to state case and refer it for opinion of HC.
• Such an opinion can be sought when the court itself feels some doubt about a
question of law.
• While trying suit, appeal or execution.
• The High Court may make such order thereon as it thinks fit.

Object

To enable the subordinate courts to obtain the opinion of the High Court

• in non-appealable cases,
• For a question of law and
• thereby avoid the commission of an error which could not be remedied later on
• also ensure that the validity of the legislative provision (Act, Ordinance or
Regulation) should be interpreted and decided by the highest court in the state.

Therefore, reference must be made before passing of the judgment in the case.

Conditions – Order 46

• There must be a pending Suit or appeal in which the decree is not subject to appeal
or a pending proceeding in execution of such decree:
• A question of law or usage having the force of law must arise in the course of such
suit, appeal or proceeding; and
• The court trying the suit or appeal or executing the decree must entertain a
reasonable doubt on such question.

Questions of Law:

Divided into two classes:-

• Those which relate to the validity of any Act, Ordinance or Regulation; and
• Other questions.

Other Questions
In the latter case, the reference is optional, but in the former case it is obligatory if the
following conditions are fulfilled:-

a. It is necessary to decide such a question in order to dispose of the case;

b. The subordinate Court is of the view that the impugned Act, Ordinance or
Regulations is ultra virus; and
c. There is no determination either by the Supreme Court or by the High Court to
which such Court is subordinate that such Act, Ordinance and Regulation is ultra -
vires.

Who may apply?

• Only a court can refer a case either on an application of a party or suo motu.
• “Court” means a court of Civil Judicature. A tribunal or persona designate cannot be
said to be “court” and no reference can be made by them.

Duty of referring court

• Reference only if suit, appeal or execution is pending

• Such question must be actual and not hypothetical

Power of High Court

• Reference jurisdiction of HC is consultative

• It may also refuse reference and quash it
• HC cannot make order on merits

Procedure of hearing

• The referring court draws up the statement of the fact of the case and formulates the
question of law on which opinion is sought and give its own opinion thereon.
• The court may either stay the proceeding or continue it.
• Referring court may pass the decree or order contingent upon the decision of the
High Court on the point referred.
• If the high court answers the question in the favour of plaintiff, the decree will be
confirmed or if it is against him the suit will be dismissed.

Revision of an order of reference

An order refusing to make reference to the High Court is revisable.

Relevant Case: Municipal Corporation of City v. Shiv Shankar Gauri Shankar Mehta (1998) 9
SCC 197

Facts: The Bombay Municipal Corporation sought to enforce a roadline which required
issuing public notices calling for objections from those likely to be affected by laying down
of these roadlines. The notices, however, were issued only to the owners of the prope rties
and not the occupiers who may be tenants in actual possession who are likely to be affected
by the demolition of the part of the premises occupied by them. This led to filing of several
suits challenging these notices.

Procedural History: The Civil Judge held that the notices were bad as tenants were not
served with the same. He also took the view that the word owner mentioned in a provision
of the Bombay Municipal Corporation Act (BMCA) did not include tenant or other person
having interest in the property; therefore, certain provisions were violative of Article 14 of
the Constitution. He referred this question to the High Court for its opinion under Section
113 read with Order 46 and ordered that in case the reference is accepted, the notices in
question will be declared illegal. If the reference is rejected, the suits impugning the notices
will stand dismissed. The High Court’s order said that under the provisions of the BMCA,
while determining compensation, not only owners but all interested parties likely to be
affected need to be compensated. The references were accordingly rejected, holding that
the referred questions did not require to be considered further. It also suggested in the
order the ways to reasonably identify other interests and serve notice to them.

Since the references got rejected, the order of the Civil Judge got fully operative in the sense
that the suits stood dismissed. The order of the High Court was challenged in the Supreme
Court.

Issue: Whether the above-mentioned observations made by the High Court in its reference
order were right as per Section 113 read with Order 46?

Judgment: The question was pertaining to the validity/constitutionality of the provisions

of the BMCA. Therefore, it was held that the observations were unnecessary for the
decision of the references which had to be decided within the four corners of Section 113
read with Rule 3 of Order 46 of CPC. They had no legal effect on the result of the suits in
connection of which they were made. The court, therefore, did not pronounce on the
correctness or legality of the impugned observations and disposed of the a ppeal.

II. Review: Section 114, Order XLVII Rules 1, 4, 7

Review (Same Court)

 • General rule: once the judgment signed and pronounced by the court, it becomes
functus officio, (cease to have control over the matter). It cannot be altered or
changed.
• Exception: Review as mentioned in Section 114 and Order 47.
• Substantive right of review is contained under Section 114 (not implied or inherent-
has to be explicit) and the procedure thereof is under Order 47.
• As a procedural provision, every Court or Tribunal can correct an inadvertent error
which can be corrected ex debito justitae (to prevent the abuse of process of court).

Meaning of Review:

• Black law dictionary, review means to reconsider, to look again or to re -examine.

• In legal parlance, it is a judicial re-examination of the case by the same court and by
the same judge.
• Under CPC, review is done only for glaring omission, patent mistake or grave error.

Object

• The doctrine of review is the acceptance of human fallibility.

• The main object of review is, if there is an error due to human failing, define that
mistake or error to prevent the miscarriage of justice and to defeat injustice.

Who may apply?

• any person aggrieved by a decree or order may apply for a review.

• Power can be exercised by the court on an application by the aggrieved person, not
by suo motu action.

Circumstances for Review are mentioned under Section 114

• A decree or order from which no appeal lies is open to review, (example appeal is
time barred)
• A review petition is also maintainable in cases where the appeal is provided but no
such appeal is preferred by the aggrieved party. (if appeal is preferred or decided
then review is rejected)
• But if the review petition is filed first and subsequently appeal is filed, the
jurisdiction of the court to deal with the review application is not affected. (doesn’t
this allow duplication of proceedings?)
• Decisions on reference from the Court of Small Causes

Grounds:
 • Discovery of new and important matter or evidence; or
• Mistake or error apparent on the face of the record; or
• Any other sufficient reason.
1. Discovery
• Due diligence test - Whenever applicant discovered such new fact or important
matter of evidence after exercise of due diligence, which was not within his
knowledge or could not be produced by him at the time when the decree was
passed, application of review is permissible. Review allowed only if applicant can
show that it was impossible for him to submit evidence earlier.
• Relevancy factor - Such evidence or matter must be relevant and of such a character
which has the potential to possibly alter the judgment. Object is to ensure that court
is not writing a second judgment with additional evidence. Therefore, this evidence
must be relevant to decide the existing issue.
• For example - a document containing admissibility of liability.

2. Error apparent on the face of record

• Cannot be defined precisely

• Such error may be one of fact or of law.
• Error not apparent on the face of record - if it is not self-evident and requires an
examination or argument to establish it.
• Examples of error apparent on the face of the record: pronouncement of judgment
without taking into consideration the fact that the law was amended retrospectively;
considering the statutory provisions, or on the ground of omission to try a material issue
in the case, etc.

Examples which are ‘Not errors’ apparent on the face of record; and hence, not apt for
review

• An erroneous decision on merits

• Erroneous view of law
• If other courts have taken different view on the same question

3. Other sufficient reasons

• not been defined in the code.

• “any other sufficient reason” must mean “a reason sufficient on grounds, at least
analogous to those specified in the rule”.
• Examples of other sufficient reason for granting review:
- where the statement in the judgment is not correct;
 - or where the decree or order has been passed under a misapprehension of the true state of
circumstances;
- or where a party had no notice or fair opportunity to produce his evidence etc.

Not sufficient reason:

• Negligence on part of party or pleader

• Failure of party to raise a plea
• Case should have been argued differently

Who reviews?

• review is a reconsideration of the same subject matter by the same court and by the same
judge, so he only has jurisdiction to consider the case and earlier order passed by him.
• But there may be situations wherein this course is not possible.
• The judicial officer may not be available or due to the death of such officer or other
unexpected or unavoidable cause.
• Under these situations, his successor or any other judge or Court of concurrent
jurisdiction may hear the review petitions and decide the same.

An application for review can be said to be a “proceeding” and a decision thereon amounts to a
“case decided” under the Code and such decision is appealable.

Relevant Case: Kunhayammed v State of Kerala 2000 (3) KLT354 (Doctrine of Merger; Scope of
Review Jurisdiction of High Court)

Facts & Procedural History: A petition was filed before the Forest Tribunal under the Kerala Private
Forests, Act by Kunhayammed (K) against the State of Kerala with respect to a piece of land in dispute.

Tribunal held that the land did not vest in the State to which State filed an appeal to the High Court
which was dismissed in 1982.

The State, then, filed an SLP in 1983 to which the Supreme Court passed an order stating, “Special
leave petition is dismissed on merits”.

Thereafter, State filed an application in 1984 in the High Court to review its order dated 1982.

In 1995, High Court overruled K’s objections to the maintainability of the review petition and
proceeded further with the review.

K, then, sought for leave to appeal to the Supreme Court which was granted in 1996. At the hearing, K
contended that the High Court’s order dated 1982 having merged into Supreme Court’s order dated
1983, the former ceased to exist and the petition for review, thereof, was misconceived. The Supreme
Court’s order dated 1983 amounted to affirmation of order dated 1982, which, therefore, could not
be reviewed by the High Court.

Issue: Whether Doctrine of Merger applies to a non-speaking order of dismissal of an SLP? Can the
High Court review its order against which an SLP is dismissed by a non-speaking order?

Judgment: Doctrine of merger lays down that when a decree or order passed by an inferior court,
tribunal or authority is set aside, modified or simply confirmed by a superior court, tribunal or
authority; it is the superior court’s order or decree which is final, binding and operativ e wherein
merges the decree or order passed by the court below.

While applying the doctrine of merger, the nature of jurisdiction of the superior forum and subject -
matter of challenge need to be kept in view.

When an SLP is filed, the Supreme Court exercises jurisdiction in two steps: (i) granting special leave
to appeal (stage of SLP); and (ii) hearing the appeal (post leave stage).

At the stage of hearing an SLP, the Court exercises its discretionary jurisdiction to see whether to
grant or not grant leave to appeal to the petitioner. If such leave is not granted (SLP dismissed), it
implies that a case to invoke appellate jurisdiction of the Court was not made out. If such appeal is
granted, appellate jurisdiction of the Court stands invoked. However, even after entering the appellate
arena, Court may dismiss the appeal without noticing the respondent. That is not the dismissal of SLP
but dismissal of appeal.

Where an SLP is dismissed, it is dismissed by a speaking order or a non-speaking order. Dismissal by

a non-speaking order does not necessarily mean that the contentions raised in an SLP on the merits
of the case have been rejected by Supreme Court and it does not preclude a party from seeking other
relief, such as under Article 226 of the Constitution or under Review jurisdiction of the High Court.
Dismissal by a non-speaking order implies that the Supreme Court was not inclined to even exercise
its discretionary jurisdiction under Article 136. As nothing is said specifically in the order of dismissal,
the aggrieved person is not deprived from seeking any other relief. Similarly, a dismissal of an SLP by
a non-speaking order (without assigning reasons for dismissal of SLP) would not result in merger of
the order impugned into the order of the Supreme Court nor it would be declaration of law by
Supreme Court under Article 141.

If an SLP is dismissed by a speaking order (supported by reasons), then also it does not attract
doctrine of merger because the jurisdiction exercised was not an appellate one but merely
discretionary refusing to grant leave to appeal. However, the reasons stated by the Court may attract
applicability of Article 141 if there is a law declared by the Supreme Court.

Dismissal of SLP by words ‘dismissed on merits’ would mean dismissal by non-speaking order where
no reasons have been assigned and no law has been declared by Supreme Court. The dismissal is not
of the appeal but of the SLP. Even if the merits have been gone into, they are the merits of SLP only.
Neither doctrine of merger, nor Article 141 would be attracted to such an or der.
Also, the Supreme Court cannot and does not reverse or modify an order or decree appealed against
while deciding an SLP. What is impugned before the Supreme Court can be reversed or modified only
after granting leave to appeal and then exercising appellate jurisdiction over it. If the order impugned
before the Supreme Court cannot be reversed or modified at the SLP stage, such order obviously
cannot be affirmed at the SLP stage.

In the present case, State’s SLP against earlier order of the High Court was found devoid of any merits
and hence dismissed via a non-speaking and unreasoned order implying that the Supreme Court was
not convinced of the need for exercising its appellate jurisdiction. Thus, High Court’s order dated 1982
did not merge with Supreme Court’s order dated 1983. Therefore, such order can be reviewed by the
High Court.

III. Revision: Section 115

Section 115 of the Code of Civil Procedure empowers High Court to entertain a revision in
any case decided by a subordinate Court in certain circumstances. This jurisdiction is
known as revisional jurisdiction of the High court.

Meaning

According to the dictionary meaning, “to revise” means ‘to look over with a view to
improving or correcting’. ‘Revision’ means “the action of revising, especially critical or
careful examination or perusal”.

Who may apply for revision?

A person aggrieved by an order of a court subordinate to the High Court may file revision
against such order or the High Court may on its own motion examine the record.

Object

• prevent subordinate courts from acting arbitrary, capriciously and illegally or

irregularly in the exercise of their jurisdiction.
• empowers the High Court to see the proceeding of the subordinate courts conducted
in accordance with the law within the bounds of their jurisdiction and in
furtherance of Justice (similar to Certiorari writ jurisdiction).
• provides the power to the High Court to correct the errors of the jurisdictions
committed by the subordinate courts when necessary
• for the effective exercise of its superintending and visitorial power, revisional
jurisdiction is conferred upon the High Court.

Section 115
The High Court may call for the record of “any case which has been decided” by any court
subordinate to it and in which no appeal lies thereto, if such subordinate court appears:

1. to have exercised a jurisdiction not vested in it by law; or

2. to have failed to exercise a jurisdiction so vested; or
3. to have acted in the exercise of its jurisdiction illegally or with material irregularity.

The High Court will not entertain Revision petition unless one or the other of these
conditions exist.

Conditions

There are following conditions which must be satisfied before revisional jurisdiction can be
exercised by the High Court:

a). A case must have been decided;

b). The court which has decided the case must be a court subordinate to the High Court;

c). The order should not be an appealable one; and

d). The subordinate Court must have (i) exercised jurisdiction not vested in it by law; (ii)
failed to exercise jurisdiction vested in it; or (iii) acted in the exercise of jurisdiction
illegally or with material irregularity.

Jurisdictional Error

• Power u/s 115 limited to object

• Error has to be related to jurisdiction only
• Where there is no question of jurisdiction, the decision cannot be corrected because
a court has jurisdiction to decide right or wrong
• All questions of law and fact not affecting jurisdiction are final

Error of law and error of jurisdiction (procedural irregularity)

Situation:

A. Court has assumed wrong jurisdiction and given the correct decision (in law)

B. Court has exercised its (correct) jurisdiction and arrived at a conclusion which is
erroneous in law.

In which one is Revision allowed?

Clause i – exercise of jurisdiction not vested by law

• A subordinate court assumes jurisdiction which it does not possess by

misconstruing statutory provisions or by misconstruing facts
• In either case, HC can revise the decision

Examples of cases where it was allowed

• Where the lower court assumes jurisdiction which it does not possess on account of
pecuniary limit/territory or subject matter
• Entertains an appeal from an order which is not appealable

Clause ii – failure to exercise jurisdiction

• Subordinate court having jurisdiction to decide a matter, thinks erroneously under a

misapprehension of law or fact, declines to have jurisdiction
• Revision by HC is allowed

Examples:

• Refusal to entertain appeal

Clause iii – exercise of jurisdiction illegally or with material irregularity

• errors of procedure
• Not challenging the decision but how it was reached.

Examples:

• Where it decides the question without considering evidence on record

• Fails to follow a decision of the High Court
• Decides on evidence not admissible.
• Failure of court in considering the principles of interim injunction and refusing to
grant it

Limitation?

High Court so? 90 days

Amendment of 1999

High Court is empowered to vary or modify an order by deciding an issue only when the
said order, if given in favour of the party applying for revision, has the effect of finally
disposing of the suit or other proceedings. In all other cases, High Court can only deal with
the jurisdiction related issue- other issues as decided by the lower court shall be final and
shall not be varied or modified.

Discretion of the court

• Cannot be demanded as a right

• Only HC will decide
• If there is an alternative and efficacious remedy, then revision may not be allowed

*You should know the distinction between review, reference, revision. But before that, you
should know the difference between appeal and revision.

Difference is that in appeal, court can rehear a case on the basis of law and fact whereas in revision,
court can only go into questions of law and decide if the trial court followed the procedure
established by law.

*Limitation Periods for filing appeals, review, revision, etc.:

Review An application for review to a Court Article 124, Limitation Act,

Application other than Supreme Court - 30 1963
days from the date of decree or
order
Review Petition to the Supreme Order XL, Rule 2- Supreme
Court Court Rules, 1966
Revision Application To any court- 90 days Article 131, limitation Act,
from the date of decree or order or 1963
sentence sought to be revised

Reference Court’s Discretion- no limitation

Special Leave In case involving death sentence- Article 133, Limitation Act,
Petition 60 days from the date of judgment, 1963
final order or sentence
In case where leave to appeal was
refused by High Court- 60 days
from the date of the order of refusal
In any other case- 90 days from the
date of judgment or order
First Appeal from Appeal to a HC from any decree or Article 116, Limitation Act,
any court to HC & order- 90 days from date of decree 1963
Second Appeal or order
First Appeal from Appeal from a decree or order of Article 117, Limitation Act,
HC single judge to any HC to the same Court- 30 days 1963
HC Division from the date of decree or order
Bench
 Execution of the Decree/Order
(Order XXI & Section 36-74)

I. General Principles

• When does a decree become enforceable? - After the final judgment comes and the
period of appeal gets over.
• Decree holder: In whose favor the decree has been passed.
• Judgment debtor: Against whom the decree has been passed.
• Court before which the execution proceedings can be filed: the court which has
passed the decree (the court of first instance) or the court to which the decree is
transferred for execution.

II. Modes of Execution

Section 51: Powers of Court to enforce execution— Subject to such conditions and
limitations as may be prescribed, the Court may, on the application of the decree -holder,
order execution of the decree—

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by sale without attachment of any property;

(c) by arrest and detention in prison (for such period not exceeding the period specified in
section 58);

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require:

Provided that, where the decree is for the payment of money, execution by detention in
prison shall not be ordered unless, after giving the judgment-debtor an opportunity of
showing cause why he should not be committed to prison, the Court, for reasons recorded in
writing, is satisfied—

(a) that the judgment-debtor, with the object or effect of obstructing or delaying the
execution of the decree,—

(i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly
transferred, concealed, or removed any part of his property, or committed any other act of
bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree, the means to pay
the amount of the decree or some substantial part thereof and refuses or neglects or has
refused or neglected to pay the same, or

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary
capacity to account.
Instances of Execution:

• Payment of Money: Detention or Attachment and Sale or both. Rule 30 of Order 21.
(Sahara scam example)
• Movable Property: Delivery of Property, Detention or Attachment. Rule 31 of Order
21. Seizure, sale
• Immovable Property: Delivery by way of dispossession. Rule 35 and 36. Warrant in
case of joint possession and notice/warning in case of tenants.
• Execution of Sale Deed: Attachment of Property. Arrest & Detention.
• Execution of injunction/restitution of conjugal rights: Rule 32- Detain or attach
property.
• Decree against corporation for specific performance/injunction: Attach property of
corporate or detention of directors, principles or promotors (SC orders against Anil
Ambani) corporate=legal fiction
• Execution of document: Rule 34- court officer will execute the document by making
the judgment debtor sign it and complete all the formalities after the court takes his
objections on the draft prepared by decree holder. (Example of Sale Deed)
• Endorsement of negotiable instrument: executed in the same manner as that of
document (Rule 36). JD is made to sign and transfer.

Arrest and Detention: S. 55-59, R 37-40 of O 21

Can be arrested anytime and put in civil prison but

• no entry to arrest can be after sunset or before sunrise in a dwelling house

• Cannot break into the house
• No arrest to be made on payment of money to the arresting officer
• If there is a pardanashin woman in the house, the judgment debtor needs to be called
out, but if he denies the access and does not come out, police can break open the house

Section 56: Exception in case of women

Prohibition of arrest or detention of women in execution of decree for money—

Notwithstanding anything in this Part, the Court shall not order the arrest or detention in
the civil prison of a woman in execution of a decree for the payment of money.

Section 58: Detention & Release

Period of detention:

1. If amount is up to 5000 rupees, maximum detention of three months

2. If amount is between 2000 to 5000, then up to 6 weeks
3. No detention for less than 2000

Release:

1. If money is paid
2. If decree amount is satisfied
3. On request of decree holder
 4. If decree holder denies subsistence allowance (S. 57)

**Release is not equivalent to discharge of liability. But the JD cannot be arrested for
discharging the same liability once he is released.

Release on ground of illness – Section 59

• If a person is ill before arrest, he cannot be arrested

• If arrested and brought before the court and if court is of the opinion that judgment
debtor is not in a fit state of health to be kept in prison, he can be released on grounds
of illness.
• If arrested and put in civil prison and then gets ill, then can be released -
- By State government on grounds of infectious or contagious disease
- Court, on grounds of serious illness

JD may be re-arrested, if he has been released on grounds of illness.

Procedure of Arrest – Rules 37 to 40

• R. 37- No arrest without notice to JD

• R. 38- Issue of warrant and person brought to court
• R. 39- Payment of subsistence allowance
• R. 40- Proceedings after arrest or appearance upon notice

Attachment of Property (Order 21, R. 41 – 57 + Section 60-64)

• Example of attachment of Vijay Mallya's properties in loan fraud case

• Nature of property which can and cannot be attached (movable and immovable):
bungalows, shares, liquor bottles, his own firm
• Section 60 essence- properties that can be sold and money be extracted out of them
can be attached but properties necessary to the debtor cannot be attached.

Modes of Attachment of Movable Property

• Rule 43- Actual Seizure, if not durable then shall be sold.

• Rule 43A- Custody to person (eg. Growing timber) who acts like surety.
• Rule 47- Where JD has a share in the property, he is given notice prohibiting from
transferring his share.

Modes of Attachment of Immovable Property

• By notice to JD prohibiting him from transferring the property under attachment.

• Section 64 makes such transfer void.

Rent or Mesne Profits

• Rule 42- if decree is for recovery of rent or mesne profits, the amount of which has
not been ascertained, property of JD can still be attached.

Attachment of Salary - Rule 48 and 48A

 • Government Officer- Notice to the authority disbursing the salary to transfer it to the
court
• Private employee- Notice of HR or finance department to transfer salary of JD to the
court

Delivery of Property

• Movable Property (Section 51(a), Rule 31)

31. Decree for specific movable property. — (1) Where the decree is for any specific
movable, or for any share in a specific movable, it may be executed by the seizure, if
practicable, of the movable or share, and by the delivery thereof to the party to whom it has
been adjudged, or to such person as he appoints to receive delivery on his behalf, or by the
detention in the civil prison of the judgment-debtor, or by the attachment of his property, or
by both.

(2) Where any attachment under sub-rule (1) has remained in force for 3 [three months,] if
the judgment-debtor has not obeyed the decree and the decree-holder has applied to have
the attached property sold, such property may be sold, and out of the proceeds the Court
may award to the decree-holder, in cases where any amount has been fixed by the decree to
be paid as an alternative to delivery of movable property, such amount, and in other cases,
such compensation as it thinks fit, and shall pay the balance (if any) to the judgment-debtor
on his application.

(3) Where the judgment-debtor has obeyed the decree and paid all costs of executing the
same which he is bound to pay, or where, at the end of 3 [three months] from the date of the
attachment, no application to have the property sold has been made, or, if made, has been
refused, the attachment shall cease.

• Immovable Property (Rules 35-36)

35. Decree for immovable property. — (1) Where a decree is for the delivery of any
immovable property, possession thereof shall be delivered to the party to whom it has been
adjudged, or to such person as he may appoint to receive delivery on his behalf, and, if
necessary, by removing any person bound by the decree who refuses to vacate the property.

(2) Where a decree is for the joint possession of immovable property, such possession shall
be delivered by affixing a copy of the warrant in some conspicuous place on the property and
proclaiming by beat of drum, or other customary mode, at some convenient place, the
substance of the decree.

(3) Where possession of any building on enclosure is to be delivered and the person in
possession, being bound by the decree, does not afford free access, the Court, through its
officers, may, after giving reasonable warning and facility to any woman not a ppearing in
public according to the customs of the country to withdraw, remove or open any lock or bolt
or break open any door or do any other act necessary for putting the decree -holder in
possession.
36. Decree for delivery of immovable property when in occupancy of tenant — Where
a decree is for the delivery of any immovable property in the occupancy of a tenant or other
person entitled to occupy the same and not bound by the decree to relinquish such
occupancy, the Court shall order delivery to be made by affixing a copy of the warrant in
some conspicuous place on the property, and proclaiming to the occupant by beat of drum
or other customary mode, at some convenient place, the substance of the decree in regard to
the property.

Sale (without attachment) of Property (Section 65-73 and Rules 64 to 94 of Order XXI)

Key points:

• Executing court is empowered to order attachment of a property and put the

sufficient portion of it for sale, and pay the sale proceeds to the Decree Holder (DH)
to satisfy the decree.
• The sale shall be confined to the sufficient portion of the property. The court shall, in
its discretion, examine and determine whether the whole of the attached property or
a portion of it alone needs to be put on sale to satisfy the decree. Excessive execution
is unwarranted and unlawful.
• The sale should be done by public auction by an officer of the court or someone else
appointed by the court. Court should issue proclamation of sale. The DH can apply for
sale of the property.
• The court should cause to issue notices to the Judgment Debtor (JD) and DH. The
service of notice on the JD is an indispensable basic step, the failure of which will make
the sale a nullity. On hearing the DH and other parties and admitting the evidence the
parties produce, the court should settle and approve the Sale Proclamation. The judge
should then sign the proclamation of sale and make order for sale fixing the time, date
and place.
• Within a week, the DH should pay the expenses of the sale and the fee for the
proclamation and warrant to the court, along with the number of copies of
proclamation as required. In case of failure the court may dismiss the petition.
• The proclamation of sale shall be made by beat of drum or other customary practices.
A copy of the proclamation must be affixed on a conspicuous part of the property, the
Courthouse, the District Collector’s office and the office of the Gram Panchayat. If the
court so directs, the proclamation should also be published in the Official Gazette or
in a local news paper.
 © Prof. Yashmita Bhalla, Jindal Global Law School
All rights reserved

The Law of Limitation

Need for law of limitation:

 Defendant might have lost evidence to disprove a stale claim

 Long dormant claims have more of cruelty than justice in them
 A person with a good cause of action will pursue it with reasonable diligence

The Limitation Act, 1963: prescribes a period within which existing rights can be enforced
in the court of law.

Philosophy of limitation is based on two legal maxims:

 The interest of the State requires that there should be an end to litigation (Interest
reipublicae ut sit finis litium)
 The law assists the vigilant and not the one who sleeps over his rights (Vigilantibus
non dormientibus jura subveniunt)

The Limitation Act, 1963

 The Act is exhaustive with respect to all the matters expressly dealt by it. It cannot be
extended by analogy.
 Limitation Act bars only the judicial remedy and it does not destroy the right.
 Limitation Act applies to civil proceedings (suit, appeal or application) in the civil
court. It does not apply to criminal proceedings and tribunals, etc.
 Limitation Act does not apply to filing of writ petitions.
 Plea of limitation is a duty of court. (Section 3)

Calculation of Limitation

When does the limitation period start running?

From the date right to sue accrues in favor of a party. Mentioned under third column of each
article.

Exceptions:

 Legal Disability: Section 6 & 7

Where a person is under legal disability (minor, insane or idiot), the period of
limitation will start after the disability has ceased.

*This material is exclusively for instructional purposes of the students enrolled in this
course – not for circulation. Unauthorized reproduction, distribution, or use is strictly
prohibited.
 © Prof. Yashmita Bhalla, Jindal Global Law School
All rights reserved

 Such disability must exist at the time when the period of limitation is to be reckoned.
Once the limitation period has begun to run, subsequent disability will not stop it.
(Section 9)

Extension and Suspension of Limitation

Section 4 & Section 5

Suspension: If the court is closed on the day of expiry of prescribed period.

Extension: It is only granted in case of filing an appeal or application. A condonation of delay

application can be filed by the appellant/applicant if he has sufficient cause for not preferring
the appeal or making the application within prescribed time.

Accepting a condonation application is a judicial discretion:

The court may condone the delay provided it is satisfied that the cause of delay is sufficient
and reasonable enough to allow the appeal or application.

Exclusion of Time

Sections 12-15 provide for exclusion of time in computing the period of limitation:

 The day on which the period of limitation is to be reckoned (S. 12(1))

 The day on which the judgment/order/award was pronounced (S. 12(2))
 Time spent in obtaining copy of decree/order/award/sentence (S. 12(3), 12(4))
 Time spent in prosecuting an application to sue as an indigent person (S. 13)
 Time spent in proceedings taken bona fide (in good faith) in court having no
jurisdiction (S. 14))
 Time during which stay or injunction operated (S. 15(1))
 Time spent in giving notice or for obtaining consent or sanction required by law (S.
15(2))
 Time during which there was a receiver or liquidator (S. 15(3))
 Time during which proceedings to set aside sale were pending (in a suit for
possession) (S. 15(4))
 Time during which the defendant had been out of India (S. 15(5))

Postponement of Limitation in certain cases

Section 16-23 of the Limitation Act provide for postponement of limitation:

 The period of limitation will not start running till there is a person who can sue or
who can be sued (S. 16(1))

*This material is exclusively for instructional purposes of the students enrolled in this
course – not for circulation. Unauthorized reproduction, distribution, or use is strictly
prohibited.
 © Prof. Yashmita Bhalla, Jindal Global Law School
All rights reserved

 In case of fraud or mistake, the period of limitation will not start running till such
fraud or mistake is discovered (S. 17)
 In case of right or liability, a fresh period of limitation will start running from the date
of acknowledgement in writing of such right or liability by the party (S. 18)
 In case of debt, payment will provide fresh period of limitation from the time of such
payment (S. 19, 20)
 Where after the institution of a suit, a new plaintiff or defendant is added or
substituted, the suit shall be deemed to be instituted against him when he was made
a party. But if the court is satisfied that such omission was due to bona fide mistake,
the suit shall be deemed to have been instituted on any earlier date (S. 21)
 In case of continuing breach of contract or tort, fresh period of limitation begins to
run every moment till the breach or tort continues (S. 22)
 In a suit for compensation for an act not actionable without special damage, the
period of limitation will be computed from the time the injury results (S. 23)

Certain important matters and period of limitation to file suit with respect to them

 Contractual matters: 3 years

 Property disputes (movable): 3 years
 Defamation: 1 year
 Criminal Appeal: 90 days (varies)
 Civil Appeal: to High Court (90 days), to lower court (30 days)
 Special leave petition: 90 days
 Review: 30 days
 Revision: 90 days
 Residuary provision under Article 113 of the Schedule

*This material is exclusively for instructional purposes of the students enrolled in this
course – not for circulation. Unauthorized reproduction, distribution, or use is strictly
prohibited.