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:

o There are numerous parties.

o All such parties have the same interest in the suit

(commonality of interest).

o The court grants permission to the plaintiff(s) to sue or

be sued on behalf of all others.

o 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.

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

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:

o The person must apply for permission to sue as an

indigent person.

o An inquiry is held by the court to determine their

financial status.

o 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.

o If the application is rejected, the applicant must pay the

court fees within a specified time or the suit is dismissed.

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

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.

 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:

o The court has a mandate to entertain all suits of a civil

nature ("Courts shall have jurisdiction...").

o The substance of the matter, not its form, determines

jurisdiction.

o Suits involving rights to property or office are civil in

nature, even if religious questions are incidentally involved

(Explanation I & II to Section 9).

o 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).

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o 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.

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

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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.

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.
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 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.

 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
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ASPECT RES SUB JUDICE RES JUDICATA

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

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.

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Sister Nivedita University

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.

Case Reference: In Sushil Kumar Mehta v. Gobind Ram

Bohra (1990 AIR SC 300), the Supreme Court held that a foreign
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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.

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

 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

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.

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Sister Nivedita University

 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:

o The defendant resides, carries on business, or

personally works for gain.

o The cause of action wholly or partly arises.

o 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.

 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:

o High Court/Supreme Court (Sec. 25): The Supreme

Court has the power to transfer suits, appeals, or other proceedings

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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.

o 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.

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

following material particulars:

 By Najmun Nisha
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o Name of the Court in which the suit is filed.

o Name, description, and place of residence of

the Plaintiff and Defendant.

o Facts constituting the cause of action and when it

arose.

o Facts showing that the court has jurisdiction (territorial

and pecuniary).

o The relief that the plaintiff claims.

o Where the plaintiff has allowed a set-off or

relinquished a portion of their claim.

o A statement of the value of the subject matter of the

suit for the purpose of court fees and jurisdiction.

o 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.

 Essentials:
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o 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.

o New Facts: The WS must state all new facts that the

defendant relies upon for their defence.

o Legal Objections: Any legal objections, such as the

suit being time-barred or not maintainable, must be explicitly raised.

o 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.

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

 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.

 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.

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

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.

 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

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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.

 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
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 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 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

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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).

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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:
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 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, 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.

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 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.

 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.

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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