By Najmun Nisha

[Link] LL.B (Hons) Semester 3

Sister Nivedita University

CPC notes
1) O. 1 Rule 8 Representative Suit

Order 1 Rule 8 of the CPC provides for the institution of a representative suit, which is

a suit filed by one or more persons on behalf of themselves and numerous other

persons having the same interest in the suit.

 Purpose: The main object is to avoid multiplicity of litigation and allow for a

final decision in a single suit that binds all interested parties, thereby saving the

court's time and resources.

 Conditions: The court must be satisfied that:

There are numerous parties.

All such parties have the same interest in the suit (commonality of interest).

The court grants permission to the plaintiff(s) to sue or be sued on behalf of all

others.

Public notice is given to all parties interested in the institution of the suit.

Binding Effect: A decree passed in a representative suit is binding on all persons

whose interests were represented, even if they were not explicitly named in the suit.

2) O. 3 Suit in Forma Pauperis (Indigent Person)

 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

Order 3 refers to "Recognized Agents and Pleaders". The concept of a "suit in forma

pauperis" (now known as an indigent person suit) is dealt with under Order 33 of the

CPC.

 Definition: An "indigent person" is one who is unable to pay the court fees

required for a suit.

 Purpose: This provision ensures that poverty does not bar a person from

seeking justice and enforcing their rights in a court of law.

 Procedure:

The person must apply for permission to sue as an indigent person.

An inquiry is held by the court to determine their financial status.

If permitted, the applicant can file the suit without paying court fees at the time of

institution. The court fees may be recovered later if the person acquires sufficient

means or property.

If the application is rejected, the applicant must pay the court fees within a specified

time or the suit is dismissed.

3) Essentials of a Suit of Civil Nature (Sec. 9 CPC)

Section 9 of the CPC empowers Civil Courts to try all suits of a civil nature, except

those whose cognizance is expressly or impliedly barred.

 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

 Meaning: A "suit of a civil nature" essentially involves the determination and

enforcement of private civil rights and obligations of a citizen, as opposed to criminal,

political, or purely social/religious matters.

 Key Principles:

The court has a mandate to entertain all suits of a civil nature ("Courts shall have

jurisdiction...").

The substance of the matter, not its form, determines jurisdiction.

Suits involving rights to property or office are civil in nature, even if religious

questions are incidentally involved (Explanation I & II to Section 9).

Suits are barred if specifically excluded by a statute (e.g., special tribunals for tax or

revenue) or by general principles of law (implied bar, e.g., suits against public policy).

There is a presumption in favour of the jurisdiction of a civil court, and the burden to

prove exclusion lies on the party asserting it.

 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

Res Judicata

Res Judicata, a phrase of Latin origin, pertains to a legally settled case. The concept

of res judicata serves to bar any further litigation on the same matter involving the

same parties, once a case has been conclusively resolved and a final judgment has

been delivered, leaving no room for any further appeals.

Res Sub Judice

Res Sub judice, a Latin maxim meaning “under judgment,” is a legal principle rooted

in public policy. It prohibits a plaintiff from initiating two simultaneous claims on the

same subject matter, thereby preventing the possibility of conflicting rulings from

different courts. The theory of Res Sub judice serves the purpose of avoiding

redundant legal processes and ensuring consistency in judicial decisions.

Res Judicata and Res Sub Judice

The idea of res sub judice is elucidated in Section 10 of the Civil Procedure Code,

1882, whereas the concept of res judicata is discussed in Section 11 of the same

CPC. Section 10 sets forth the provision that cases should be stayed while they are

under consideration or adjudication by a court.

In contrast, Section 11 outlines that the rule applies to a case that has already been

conclusively decided. It prohibits the re-trial of a suit or an issue that involves the

same subject matter that has already been settled in previous litigation.
 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

Exceptions

Res judicata

The doctrine of res judicata prevents parties from reinitiating litigation; however,

there are specific circumstances when this doctrine does not apply:

 When the decree and order have been obtained through fraud or

misrepresentation of facts or issues.

 When the judgment is not pronounced on the merits of the case.

 When the special leave petition was dismissed without a proclamation or

determination of the judgment.

 When the subsequent lawsuits have a different cause of action, the court

cannot dismiss it based on res judicata.

 When the court lacked competent jurisdiction in the former suit.

 When there is a question of law involved.

 When an interlocutory order was passed in a former suit.

 If there has been an amendment to the existing law that grants new rights to

the party, then the doctrine will not apply.

 When the suit was dismissed by default.

 If the party does not raise a plea for res judicata.

Res sub judice

The doctrine of res sub judice does not apply in certain cases, including:

 When the claims in each suit are unique and distinct from one another.
 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

 When there are both common and unique issues in the cases, the doctrine may

not apply.

 When different issues are involved between the same parties.

 It is not necessary to raise all issues from the earlier suit in the later litigation for

Section 10 to be applicable.

ASPECT RES SUB JUDICE RES JUDICATA

MEANING A matter under judicial A thing adjudged"

consideration" (Pending) (Finally Decided)

STAGE APPLIED APPLIES TO A APPLIES TO A FINALLY

PENDING SUIT DECIDED SUIT

EFFECT THE SECOND SUIT IS THE SECOND SUIT IS

STAYED(paused) BARRED(prevented)

GOAL PREVENTS PARALLEL ENSURES FINALITY

LITIGATION AND OF JUDMENTS AND
CONFLICTING PREVENTS ENDLESS
JUDGMENTS LAWSUITS

EXAMPLE SCENARIO A SUES B OVER A A sues B over land

LAND OWNERSHIP IN ownership in court 1.
COURT 1 while the case The court hears the
is ongoing, A files a case and issues a final
second suit in court 2 judgement that B is the
against B for the same rightful owner.
issue.

EXAMPLE OUTCOME Court 2 stays its A cannot file

proceedings, waiting for a second suit against B
for that land ever again.
court 1 decision
 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

Short Note: Foreign Judgment (Secs. 2(6), 2(5) & 14 CPC); When Not Conclusive, with Case
References

A foreign judgment (FJ) is defined under Section 2(6) as a judgment of a "Foreign

Court" (defined in Section 2(5) as a court outside India not established by the Central

Government). Section 14 creates a presumption that a certified copy of an FJ is

conclusive on merits, unless proven otherwise under specific exceptions.

A foreign judgment is not conclusive if it falls under any of the six exceptions listed

in Section 13 of the CPC:

 Not by Competent Court: The court passing the judgment lacked jurisdiction.

 Not on Merits: The judgment was not given on the merits of the case (e.g.,

passed ex parte due to procedural reasons, not a real assessment of the case).

 Wrong View of International Law/Indian Law (if applicable): The judgment

is based on an incorrect view of international law or a refusal to recognize Indian law

where applicable.

 Opposed to Natural Justice: The proceedings violated principles of natural

justice (e.g., the defendant was not given notice or a fair hearing).

 Obtained by Fraud: The judgment was obtained by fraud.

 Breach of Indian Law/Public Policy: It sustains a claim founded on a breach

of any law in force in India or is against Indian public policy.

 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

Case Reference: In Sushil Kumar Mehta v. Gobind Ram Bohra (1990 AIR SC 300),

the Supreme Court held that a foreign decree passed without proper jurisdiction or in

violation of natural justice is a nullity and cannot be enforced in India. The executing

court can determine whether a foreign decree is a nullity based on Section 13

grounds.

Short Note: Presumption as to Foreign Judgment (Secs. 2(6), 2(5) & 14 CPC)

Section 14 of the CPC deals with the presumption regarding a foreign judgment.

 Presumption of Conclusiveness: The section states that "The Court shall

presume upon the production of any document purporting to be a certified copy of a

foreign judgment, that such judgment was pronounced by a Court of competent

jurisdiction, unless the contrary appears on the record; but such presumption may be

displaced by proving absence of jurisdiction or other circumstances mentioned under

Section 13".

 Key Point: This is a rebuttable presumption of law. It places the burden of

proof on the party challenging the foreign judgment to demonstrate that one or more

conditions of non-conclusiveness listed in Section 13 are applicable.

 Sections 2(5) & 2(6): These define the terms "Foreign Court" and "Foreign

Judgment," respectively, establishing the foundational terminology for Sections 13

and 14.

Short Note: Place of Suing as Discussed under Sections 15-20 CPC

 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

Sections 15 to 20 of the CPC determine the territorial jurisdiction of civil courts to

entertain a suit, commonly referred to as the "place of suing". The rules prioritize

convenience and efficient administration of justice.

 Sec. 15 (Court of Lowest Grade): Every suit shall be instituted in the court of

the lowest grade competent to try it (based on pecuniary jurisdiction). This ensures

higher courts are not overburdened.

 Secs. 16-18 (Immovable Property): Suits relating to immovable property

(recovery, partition, foreclosure, etc.) must generally be filed where the property is

located.

 Sec. 19 (Wrong to Person/Movable Property): Suits for compensation for

wrong done to a person or movable property may be filed either where the wrong

was committed or where the defendant resides/carries on business.

 Sec. 20 (Residuary Section): This is the general rule for all other suits (e.g.,

money recovery, contract breach). A suit can be filed where:

The defendant resides, carries on business, or personally works for gain.

The cause of action wholly or partly arises.

In cases with multiple defendants, if one has permission from the court or the other

defendants consent, the suit may proceed.

Short Note: When can suits be transferred & Procedure of Transfer of Suit

Sections 22 to 25 of the CPC govern the transfer of suits.

 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

 When Transfer Occurs: Transfer usually occurs when a suit can be instituted

in two or more courts (Section 22). It is often sought for reasons of convenience,

impartial trial, balance of justice, or specific legal reasons.

 Power of Transfer:

High Court/Supreme Court (Sec. 25): The Supreme Court has the power to transfer

suits, appeals, or other proceedings from a High Court or Civil Court in one state to

another state's High Court or Civil Court if it is expedient for the ends of justice.

High Court/District Court (Sec. 24): The High Court or District Court can transfer a

case pending in a subordinate court to another subordinate court of competent

jurisdiction within their respective jurisdictions, either on application by a party or on

their own motion, to meet the ends of justice.

 Procedure: The party seeking transfer must file an application (usually

supported by affidavit) to the appropriate court (District Court, High Court, or

Supreme Court), providing grounds for the transfer. The court, after hearing the

parties, may pass an order to transfer the case, which the receiving court is bound to

accept and proceed with.

Short Note: Define Plaint and Essentials of it

A plaint is the primary pleading filed by the plaintiff that initiates a civil suit. It is a

statement of claim, presented to the court in writing, outlining the cause of action and

the relief sought. It is governed by Order 7 Rule 1 of the CPC.

 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

 Essentials (Order 7, Rule 1): A plaint must contain the following material

particulars:

 Name of the Court in which the suit is filed.

 Name, description, and place of residence of the Plaintiff and Defendant.

 Facts constituting the cause of action and when it arose.

 Facts showing that the court has jurisdiction (territorial and pecuniary).

 The relief that the plaintiff claims.

Where the plaintiff has allowed a set-off or relinquished a portion of their claim.

A statement of the value of the subject matter of the suit for the purpose of court

fees and jurisdiction.

If the plaintiff is suing as a representative, a statement showing they have an actual

existing interest.

Short Note: Written Statement & Essentials of it

A Written Statement (WS) is the defendant's pleading in response to the plaint filed

by the plaintiff. It is governed by Order 8, Rule 1 of the CPC. The defendant must

present their defence in the WS.

 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

 Essentials:

Specific Denials: The defendant must specifically deny every allegation of fact in the

plaint that they do not admit. Evasive denials are not allowed; every denial must be

clear and specific.

New Facts: The WS must state all new facts that the defendant relies upon for their

defence.

Legal Objections: Any legal objections, such as the suit being time-barred or not

maintainable, must be explicitly raised.

Set-off or Counter-claim: If the defendant claims a set-off or counter-claim, the

particulars must be included in the WS as if it were a plaint.

Timeline: Generally, the WS must be filed within 30 days of receiving the summons,

extendable up to 90 days with court permission.

Short Note: How can a suit be instituted in a civil court (Sec. 26 + Order 4, Rule

1)

The institution of a civil suit is the formal start of legal proceedings. This procedure is

mandated by Section 26 and Order 4, Rule 1 of the CPC.

 Section 26: States that every suit shall be instituted by the presentation of a

plaint or in such other manner as may be prescribed.

 Order 4, Rule 1: Elaborates on this, stating a suit is instituted by the

presentation of a plaint to the court or an officer appointed in that behalf.

 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

 Procedure:

1. Preparation of Plaint: The plaintiff prepares a written plaint containing

all essentials as per Order 7 (facts, cause of action, relief sought).

2. Affidavit: The facts stated in the plaint must be proved by an affidavit

signed and verified by the plaintiff.

3. Filing/Presentation: The plaint is physically presented to the appropriate

court official.

4. Acceptance & Registration: If the plaint is in order, the court accepts it

and the suit is duly registered in the court records.

5. Issuance of Summons: The court then issues summons to the

defendant to appear and file a written statement.

Short Notes: Distinctions Between Key Concepts

1) Set-off vs. Counter-claim

 Set-off (Order 8, Rule 6): A reciprocal acquittal of debts between two parties.

The defendant can claim a specific sum of money owed by the plaintiff to the

defendant. It must be an ascertained sum, legally recoverable, and within the court's

jurisdiction. It acts as a defence to the plaintiff's claim.

 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

 Counter-claim (Order 8, Rule 6A): A claim made by the defendant against the

plaintiff that can be a cross-action. It may or may not be connected to the original

cause of action and can be for damages or other relief. It is effectively a separate suit

filed by the defendant against the plaintiff within the same proceedings. A

counter-claim can exceed the plaintiff's claim.

2) Judgment, Decree, and Order

 Judgment (Sec. 2(9)): The statement given by the Judge on the grounds of a

decree or order. It is the reasoning or rationale behind the decision.

 Decree (Sec. 2(2)): The formal expression of an adjudication that, so far as

the Court expressing it is concerned, conclusively determines the rights of the parties

with regard to all or any of the matters in controversy in the suit. It can be preliminary

or final.

 Order (Sec. 2(14)): The formal expression of any decision of a Civil Court

which is not a 'Decree'. Orders can be final or interlocutory (temporary), and some

are appealable, others are not.

3) Necessary Party vs. Proper Party

 Necessary Party (Order 1, Rule 10): A party who must be joined in the suit, as

no effective or complete decree can be passed in their absence. If a necessary party

is missing (non-joinder), the suit is liable to be dismissed.

 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

 Proper Party (Order 1, Rule 10): A party whose presence is necessary for the

court to fully and completely adjudicate upon the issues involved, but in whose

absence an effective decree can still be passed. The court usually adds such a party

to avoid future litigation or complications.

4) Representative Suit vs. Interpleader Suit vs. Suit in Representative Capacity

 Representative Suit (Order 1, Rule 8): Filed by one or more people on behalf

of manypeople with the same interest (common interest litigation). The outcome

binds all interested parties.

 Interpleader Suit (Sec. 88, Order 35): A suit where the plaintiff has no personal

interest in the subject matter (e.g., property, money) and is merely a custodian. They

request the court to determine which of the rival defendants has a rightful claim to the

property.

 Suit in Representative Capacity: A general term referring to any suit where a

person sues not in their personal capacity, but as a representative of another legal

person, estate, or group (e.g., guardian of a minor, executor of a will, representative

of a trust).

5) Temporary Injunction vs. Permanent Injunction

 Temporary Injunction (Order 39): A provisional order that restrains a party

from doing a specified act until the disposal of the suit or until further orders of the
 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

court. It is granted during the pendency of litigation to maintain the status quo and

prevent irreparable harm.

 Permanent (Perpetual) Injunction (Specific Relief Act): Granted by a decree

made at the final hearing and on the merits of the suit. It perpetually prohibits the

defendant from asserting a right or committing an act that is contrary to the rights of

the plaintiff. It provides a final remedy.

6) Cause of Action vs. Issues

 Cause of Action (COA): A "bundle of material facts" which are necessary for

the plaintiff to prove to be entitled to relief. If these facts are not proven, the suit must

fail. A COA gives the reason or the right to bring a suit.

 Issues (Order 14): Points of disagreement or contention between the parties,

arising from the pleadings (plaint and written statement). The court frames issues

upon which it needs to give a decision to resolve the dispute. Issues can be of fact or

law.

7) Addition of Parties vs. Substitution of Parties

 Addition of Parties (Order 1, Rule 10(2)): The court may, at any stage, order

the name of any person to be added as a plaintiff or defendant who ought to have

been joined (necessary party) or whose presence is necessary to enable the court to

effectively and completely adjudicate upon and settle all the questions involved in the

suit (proper party).

 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

 Substitution of Parties (Order 22): Relates to cases where a party to the suit

dies, becomes insolvent, or assigns their interest during the pendency of the suit.

The legal representatives of the deceased or the assignee are brought on record in

their place. This prevents the suit from "abating" (terminating).

8) Return of Plaint vs. Rejection of Plaint

 Return of Plaint (Order 7, Rule 10): The plaint is physically returned to the

plaintiff to be presented to the proper court (due to lack of territorial or pecuniary

jurisdiction). This does not bar a fresh filing in the correct court.

 Rejection of Plaint (Order 7, Rule 11): The plaint is rejected by the court in

specific circumstances, such as non-disclosure of a cause of action, being

undervalued (and correction not made), insufficient stamp duty (and correction not

made), or being expressly barred by law. Rejection is an adjudication and typically

bars the plaintiff from filing a fresh suit on the same cause of action in that court.

9) Reference, Review, and Revision

These are three distinct ways to challenge a decision, provided in the CPC:

 Reference (Sec. 113, Order 46): A subordinate court refers a question of law to

the High Court for opinion before passing a judgment. It is a precautionary measure.

 Review (Sec. 114, Order 47): A party may apply to the same court that passed

a decree or order to re-examine its own decision. This is permitted only on specific,
 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

narrow grounds, such as the discovery of new important matter/evidence, a

mistake/error apparent on the face of the record, or any other sufficient reason.

 Revision (Sec. 115): The High Court calls for the record of any case decided

by a subordinate court to satisfy itself regarding the legality or regularity of the

proceedings/order. The High Court can interfere if the lower court acted without

jurisdiction, failed to exercise jurisdiction, or acted illegally/with material irregularity.

10) Revision vs. Appeal

 Appeal (Secs. 96, 100, etc.): The right to appeal is a substantive statutory right.

An appeal lies to a superior court against a decree (and some appealable orders) to

challenge both questions of fact and law. The appellate court can re-examine the

evidence and substitute its own decision.

 Revision (Sec. 115): Not a substantive right, but a discretionary power of the

High Court. It primarily deals with jurisdictional errors and legal irregularities, not the

re-evaluation of facts or merits of the case.

11) First Appeal vs. Second Appeal

 First Appeal (Sec. 96, Order 41): An appeal from the original decree passed

by a Civil Court of original jurisdiction (e.g., Trial Court) to the immediate superior

court (e.g., District Court or High Court). It can be filed on questions of both law and

fact.
 By Najmun Nisha
[Link] LL.B (Hons) Semester 3
Sister Nivedita University

 Second Appeal (Sec. 100, Order 42): An appeal to the High Court from a

decree passed by the First Appellate Court (e.g., District Court). It only lies if the High

Court is satisfied that the case involves a substantial question of law.

12) Misjoinder and Non-joinder of Parties

 Misjoinder (Order 1, Rules 1 & 3, & Rule 9): When a person has been

wrongly added as a plaintiff or defendant who is not a necessary or proper party to

the suit. The suit is generally not dismissed merely for misjoinder.

 Non-joinder (Order 1, Rules 1 & 3, & Rule 9): When a necessary or proper

party has been omitted from the suit. Non-joinder of a necessary party can be fatal to

the suit, leading to its dismissal, because a complete decree cannot be passed

without them. Non-joinder of a proper party is usually curable by adding them to the

suit