CIVIL PROCEDURE

CODE, 1908
 INTRODUCTION
 It is a Procedural/Adjective Law.
 The act is known as—The Code of Civil Procedure, 1908.
 CPC, 1908 came into force: 1st Jan, 1909.
 Amendment Act, 1976
 President’s Assent: 9th Sept, 1976
 Came into Force: 1st Feb, 1977
 Amendment Act, 1999
 President’s Assent: 30th Dec, 1999
 Came into force: 1st July, 2002
 Amendment Act, 2002
 President’s Assent: 23rd May, 2002
 Came into Force: 1st July, 2002
OBJECT OF THE CODE
 The object of the Code is to consolidate and amend the laws relating to the procedure
of Courts of Civil Judicature.
 Consolidate—to collect all the laws relating to a particular subject.
 Case: Prem Lala Nahata vs. Chandi Prasad Sikaria
 It is a consolidated code, collecting all the laws relating to procedure to be adopted by
Civil Courts.
 According to SC: A procedural law is always in aid of Justice and connected to
substantive law.
EXTENT AND APPLICABILITY
 To whole of India, including J&K.
 State of Nagaland and other tribal areas—Excluded.
 Amendment Act, 1976—applicable to Schedule Areas also.
 The Code is exhaustive—on the matters specifically dealt with by it.
SCHEME OF THE CODE
 It has 158 sections and 51 Orders.
 Sections
 These deal with provisions of a substantive nature.
 These lay down general principles of jurisdiction.
 These are fundamental in nature and cannot be amended, except by the
Legislature.
 Orders
 These are contained in the 1st Schedule of the CPC.
 These relate to the procedure, method, manner, mode in which the jurisdiction
may be exercised.
 These can be amended by the HCs.
 If an Order is inconsistent with Section—the Section, being fundamental in nature,
will prevail. [Case: Director of Income Tax v. Puran Mal Sons]
 CPC is retrospective in nature. [Procedural Laws are always retrospective, unless
there are good reasons to the contrary]

DEFINITIONS
Adjudications of a Court divided into 2 classes: Decree and Order.
DECREE

 Defined in Sec. 2(2): It is the formal expression of an adjudication (matter in

controversy)—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 decree maybe either preliminary or final
 Deemed to include (Deemed Decree):
i. Rejection of a Plaint
ii. Determination of any Question under S. 144.
 Decree shall not include:
o Appeal lies as an appeal from an order
o Order of dismissal for default.
 Essential Elements
o There must be an adjudication;
o Such adjudication must have been done in a suit;
o It must have determined the rights of the parties (all or any of the matters in
controversy);
o Such determination must be of a conclusive nature;
o There must be a formal expression.
Adjudication
 Judicial determination of the matters in dispute
 Matter should be judicial
 Must be by a Court
 Dismissing a suit for default of appearance of the parties—Not an Adjudication,
because there was no judicial determination.
 Departmental Inquiries—Not adjudication, because no Judicial determination
involved.
Suit
 Not defined in the Code.
 Hans Raj Gupta v. Official Liquidator of the Dehradun-Mussoorie Electric
Tramway Corp. Ltd.—The word ‘suit’ ordinarily means a civil proceeding instituted
by the presentation of the Plaint.
 Statutory Suits
 Under certain enactments specific provisions have been made to treat
applications as suits, i.e., proceedings under:
i. Indian Succession Act, 1925
ii. Hindu Marriage Act, 1955
iii. Land Acquisition Act
iv. Arbitration Act etc.
Decisions given in such proceedings are called decrees.
  A proceeding which doesn’t commence with a plaint, and which is not treated as a
suit under any other act cannot be said to be a Suit under this Code, and hence, the
decision in it cannot be said to be a decree.
Note: Though decisions of Tribunal are said to be ‘Decree by Tribunal’, but those decrees
don’t come under the meaning covered in Sec. 2(2) of the CPC.
Rights of Parties to Matters in Controversy
 The adjudication must have determined the rights of the parties with regard to all or
any of the matters in controversy.
 Here, ‘rights’ mean substantive rights and not merely procedural rights.
 Status, limitation, jurisdiction—rights of the parties. But only procedural default like:
non-appearance, refusing to file as a pauper—don’t mean rights under this definition.
 ‘Parties’ means parties to the suit, i.e., Plaintiff and Defendant. So, an order by an
application of third person, who is a stranger, is not a decree.
 ‘Matters in controversy’ should relate to the substantive right of the parties. This is
the main subject-matter of the dispute which needs to be decided, or against which
relief is sought by the parties.
Conclusive Determination
 Determination of rights made by the Court should be of a conclusive nature and
should be final.
 Interlocutory orders are not conclusive determinations and hence, not a decree.
Formal Expression
 There must be a formal expression of such adjudication.
 The formal expression must be in the manner provided by law.
 Decree follows the Judgement.
CLASSES OF DECREE

 Preliminary Decree
 A Preliminary Decree is one which declares the rights and liabilities of the
parties leaving the actual result to be worked out in further/future
proceedings.
 That right of parties are fully determined and a decree is passed in accordance
with such determination, which is final.
 Where an adjudication decides the rights of the parties with regard to all or
any matter in controversy in the suit, but doesn’t completely dispose of the
suit, it is a preliminary.
 Preliminary decree is passed in those cases in which the Court has to, first
adjudicate upon the rights of the parties, and then state held, for the time
being, until the passing of the final decree.
 Preliminary decree—stage—working out the preliminary rights of the party
which needs to be adjudicated finally later on.
 Examples when a PD is passed:
o Mesne Profit
o Dissolution of Partnership
 o Partition
o Foreclosure
o Sale of Mortgaged Property
o Redemption of Mortgaged Property
Q. Whether there can be more than 1 PD in the same suit?
Phoolchand v. Gopal Lal: It has been observed that there is nothing in the Code which
prohibits passing of more than 1 PDs (if the circumstances justify, eg. Partition).
 Final Decree
 A final decree may be said to become final in 2 ways:
i. When within the prescribed period, no appeal is filed against that
decree or the matter has been decided by the decree of the highest
Court.
ii. When the decree so far as regards the Court passing it, completely
dispose of the suit.
 A final decree is one which completely disposes of a suit and finally settles all
questions in controversy between parties and nothing further remains to be
decided thereafter.
 Without directing any further inquiry, if the Court passes a decree—it will be a
final decree.
Q. Whether there can be more than 1 Final in the same suit?
Shankar v. Chandrakant: More than 1 FD can be passed, if circumstances demand so.
Ghulsham Biwi v. Ahmedasa Rathore
 Partly Preliminary Partly Final
 A decree may be partly preliminary and partly final when in a suit, the Court
prima facie passes 2 decrees—where first decree is final, nothing left to
adjudicate further, and 2nd decree—preliminary, where it doesn’t dispose of
the suit completely and something extra needs to be adjudicated.
 Example: 1 suit, 2 issues: Possession and Mesne Profit.
o Issue of Possession decided—final decree,
o Issue of Mesne Profit—decided as to right, but quantum not decided—
preliminary decree.
o Decree in the entire matter: Partly preliminary, partly final.
Deemed Decree
 The term ‘deemed’ is generally used to create a statutory fiction for the purpose of
extending the meaning which it doesn’t expressly cover.
 When something is deemed, then in reality it is not that but the act of Parliament or
the Legislature requires it to be treated like that.
 Whenever the legislature uses the word ‘deemed’ in any statute in relation to a
particular thing, it implies that the legislature, after due consideration, conferred a
particular status on that thing.
Distinction: Deemed Decree v. Decree
 Decree Deemed Decree
Should fulfill all requisites under Sec. 2(2), No such requisites need to be fulfilled
CPC
Not a legal fiction By a legal Fiction
No specific rules as to what is and what is Rejection of Plaint and Sec. 144
not a decree (Restitution)
Not included in a decree:
 Dismissal for default
 Appealable Orders (Sec.104 and
Order 43)

JUDGE

 Presiding officer of a civil court (Court—a place where justice is judicially

administered).
JUDGEMENT

 Judgement means a statement given by a Judge of the grounds of a decree or order.

 Essentials
 A concise statement of the case
 The points for determination
 The decision
 The reasons for such decision
 Essentials of a judgement of Court of Small Causes
o Points of determination
o The decision
 Balraj Taneja v. Sunil Madan: A judge cannot merely say: suit decreed or
suit dismissed. The whole process of reasoning has to be set out.
Judgement v. Decree
Judgement Decree
Statement given by a judge on the grounds It is not necessary to give a statement in a
of a decree. decree.
Formal expression of Judgement is not Formal expression of a Decree is a must.
necessary.
Judgement contemplates a stage prior to the A decree shall follow the judgement.
passing of a decree or an order.

ORDER (Sec. 2(14))

 Formal expression of any decision of a Civil Court which is not a decree.

 The adjudication of a Court which is not a decree is an Order.
Similarities between Order and Decree
i. Adjudication
ii. Matters in controversy
iii. Court
 iv. Formal expression
Differences between Order and Decree
Decree Order
Always the outcome of a suit. May originate from a suit, petition or
application.
Always a Final/Conclusive determination. May or may not be a final/conclusive
determination.
3 types: Preliminary, Final, Partly No such type exists.
Preliminary-Partly Final
In every suit, there is only 1 decree. In a suit, Multiple orders can be passed.
Every decree is appealable. Every order is not appealable. Only those
orders can be appealable, when statute says
so.
2nd appeal is possible from decree nd
2 appeal is not possible from Order

DECREE-HOLDER

 DH means any person in whose favor a decree has been passed or an order capable of
execution has been made.
 A DH need not necessarily be the plaintiff. It can either be the plaintiff or the
defendant.
 Even a person who is not a party to a suit, but in whose favor an order capable of
execution has been passed—is also a DH.
JUDGEMENT-DEBTOR

 JD means any person against whom a decree has been passed or an order capable of
execution has been made.
FOREIGN COURT

 This means: Court situated outside India and not established or continued by the
authority of the Central government.
FOREIGN JUDGEMENT

 Judgement given by a Foreign Court.

 If a foreign judgement fulfills conditions given in Sec. 13 of CPC, then it can be
executed in India.
LEGAL REPRESENTATIVE

 Person who, in law:

i. represents the estate of the deceased person
ii. intermeddle with the estate of the deceased person
iii. on whom the estate devolves on the death of the party so suing or sued.
 Examples: Executors, administrators, Hindu Coparceners, Legatees etc.
MESNE PROFITS
  Mesne Profit of property means those profits which the person in wrongful possession
of such property:
 Actually received; or
 Might with ordinary diligence have received therefrom;
 Together with interest on such profits; and
 Shall not include profits due to improvements made by the person in wrongful
possession
 Object: The real owner is entitled not only to the restoration of property, but also
damages for wrongful possession of that person.
 Thus, Mesne Profit are a compensation paid to the real owner.
 When and against whom can Mesne Profit be Claimed
 Wrongful possession of the defendant is the essence of a claim. Generally, a
person in wrongful possession is liable for Mesne Profits.
 Mesne profits can be claimed with regard to immovable property only.
Eg: Trespasser, Mortgagee in possession after redemption, Mortgagor in
possession after foreclosure, tenant holding possession after notice etc.
 Assessment of Mesne Profit: Usually the Court will take into account:
i. What the defendant has gained or reasonably would have gained by his
wrongful possession of the property
ii. To ascertain mesne profit, it is not what the plaintiff has lost, but what
the defendant has gained or might reasonably, with ordinary prudence,
would have gained by such wrongful possession.
 Principle
 No profit by a person in wrongful possession;
 Restoration of status before dispossession of decree-holder; and
 Use to which a decree-holder would have put the property if he himself was in
possession.
 Interest: It is an integral part of mesne profit. The rate of interest is at the discretion
of the Court, but shall not exceed 6% per annum.
By allowing mesne profits, the court may allow deductions to be made from gross
profits of the defendants such as: land revenue, rent, cost of cultivation, cost of
ripping, charges incurred for collection of rent etc.
 In other words, mesne profits should be net profits.
OTHER IMPORTANT TERMS
 Public Officer: It means persons falling under any of the descriptions in Sec. 2(17) of
the CPC. It includes the following category of persons:
 Every Judge
 Every member of All India Service
 Every Gazetted Officer of the UOI
 Every officer of Court of Justice or of Government
 Minister of State
 Receiver appointed under CPC
 Village Headman
 Officer of Indian Army
 Sheriff of Bombay
  Bench clerk of a Civil Court
 Inspector of Police
 Custodian of Evacuee Property
 Provident Fund Commissioner
 Advocate engaged by government on day fees
 Income Tax Officer etc.
 Affidavit:
 Declaration of facts—reduced to writing and affirmed or sworn before an
officer having authority to administer oaths.
 Appeal
 Judicial examination of the decision by a higher Court of the decision of an
inferior court.
 It is the remedy provided by law for getting the decree of a lower court set
aside.
 Cause of Action
 Bundle of essential facts which is necessary for the plaintiff to prove before he
can succeed.
 It is the foundation of a suit and if there is a plaint which doesn’t disclose any
cause of action, the Court will reject such a Plaint.
 Defendant
 A person who defends or a person sued in a court of law by a plaintiff.
 A defendant is the person against whom a relief is claimed by the plaintiff.
 Plaintiff
 A person who brings a suit or commences an action against the defendant.
 A plaintiff is the person who seeks relief against the defendant.
 Execution:
 The process of enforcing or giving effect to the judgement, decree or order of
the Court.
 Issue
 Issue means a point in question, an important subject of debate or litigation.
 3 types: Issue of Fact, Issues of Law, Mixed issue of law and fact
 Issues arise when a material proposition of fact or law is affirmed by one party
and denied by the other.
 Jurisdiction
 Authority to decide.
 It may be defined as: The authority or power of a court to hear and determine a
cause, and to adjudicate and exercise any judicial power in relation to it.
 Broadly classified into: Territorial, Pecuniary and Subject-matter Jurisdiction.
 Plaint
 Pleading of the Plaintiff
 Statement of claim, a document or memorial by the presentation of which a
suit is instituted.
 It contains the grounds on which the assistance of a Court is sought by a
plaintiff.
 Written Statement
 It is the reply of the defendant to the Plaint of the plaintiff.
  It is a pleading of a defendant dealing with every material fact of a plaint.
 It may also contain new facts in favor of the defendant or legal objections
against the claim of the Plaintiff.
 Summons
 Document issued from an officer of a Court of justice, calling upon the person
to whom it is directed to attend before a judge, or an officer of the Court for a
certain purpose.
 It legally obligates the person to whom it is directed to attend the Court of law
at a specified date (as provided in the summons).
 Suit
 Civil proceeding instituted by the presentation of a Plaint.
Q. Questions
 Object of CPC
 Decree v. Order
 Short Notes:
 Mesne Profits,
 Legal Representative,
 Deemed Decree
 Plaint v. Written Statement
 JURISDICTION OF CIVIL COURTS
 Wherever there is a right, there is a remedy (Ubi Jus Ibi Remedium).
 A person having right of civil nature can enforce such right by instituting a civil suit
(civil court shall take cognizance unless it is expressly or impliedly barred)
MEANING OF JURISDICTION
 Derived from Latin terms ‘Juris’ and ‘dicto’, which means: “I speak by the law”.
 Jurisdiction means the power or authority of a Court to hear and determine a cause of
action or a matter.
 It is an extent of authority of the Court to administer justice with reference to the:
i. Subject-matter
ii. Pecuniary
iii. Territorial Limits
Jurisdiction and Consent
 Consent cannot confer or take away jurisdiction of a Court.
 A.R. Antulay v. R.S. Nayak: Jurisdiction is legislative in character. Parliament can
alone do it. The Courts do not have power to divest or change their jurisdiction.
 If a Court has no inherent jurisdiction, neither consent nor waiver nor estoppel can
create it.
 Generally, a decree passed by a Court without jurisdiction is called a Coram Non
Judice, and such a decree is null and void.
 Kiran Singh v. Chaman Paswan: Decree passed by Court without jurisdiction is a
nullity.
Lack of Jurisdiction and Irregular Exercising of Jurisdiction
 There is always a distinction between want of jurisdiction and irregular exercise of it.
 Once it is held that the Court has jurisdiction, the correctness of the decision cannot
be said to be without jurisdiction because the court has every right to decide the
matter wrongly or rightly.
 If it decides wrongly, the wronged party can take the course prescribed by law. If such
party does not take any course, then the decision will be valid.
 But, if there is inherent lack of jurisdiction, the decree passed by a civil court is a
nullity.
 Inherent lack of jurisdiction—nullity.
Irregular exercise of jurisdiction—valid, if not complained/appealed against. It can be
set aside by an appeal.
 ML Sethy v. RP Kapoor
Basis to determine Jurisdiction
 It is well settled that for deciding the jurisdiction of a civil court the averments made
in the plaint are material.
 Jurisdiction should normally be decided on the basis of the case put forward by the
plaintiff in the plaint and not by the defendant in his written statement.
  The allegations made in the Plaint decide the forum. However, the plaintiff cannot, by
drafting his plaint cleverly, play with the jurisdiction of the court.
 In deciding the question of jurisdiction, what is important is the substance of the
matter.
 Plaintiff always chooses his forum and files his suit. If he establishes the correctness
of his facts, he will get his relief from the forum chosen.
 Having regard to the nature of the suit, if it is not cognizable by the class of court to
which the court belongs, the plaintiff’s suit will have to be dismissed in its entirety.
 Every Court has inherent power to decide the disputes relating to their own
jurisdiction.
Kinds of Jurisdiction
 Civil and Criminal Jurisdiction (Self Explanatory)
 Territorial Or Local Jurisdiction: Area Jurisdiction [HC-State, District Court-District]
 Pecuniary Jurisdiction: Amount or value of the subject matter should not exceed the
pecuniary limits (monetary limits).
 HC, District Courts—Unlimited Pecuniary Jurisdiction
 Presidency/Small Causes Court—Cannot exceed 1000
 Subject-Matter Jurisdiction: Different courts have been empowered to decide different
types of suits.
 District Judge—Insolvency, Probate, Divorce, Testamentary matters.
 Original and Appellate Jurisdiction
 Original: First instance decides suits, petitions and applications.
Eg: Munsiffs Courts, Courts of Civil Judges, Small Cause Courts
 Appellate: Superior court to re-hear by the way of appeal, revision etc. of
causes which have been tried and decided by Courts of Original Jurisdiction.
Eg: District Courts and High Courts (original and appellate jurisdiction).
 Exclusive and Concurrent Jurisdiction
 Exclusive Jurisdiction: Confers sole power on one court or tribunal to try, deal
with and decide a case. No other court or authority can render a judgement or
give a decision in the case or class of cases.
 Concurrent Jurisdiction: Jurisdiction which may be exercised by different
courts or authorities between the same parties at the same time and over the
same subject-matter.
 General and Special Jurisdiction
 General: Jurisdiction extends to all cases comprised within a class or classes of
causes.
 Special/Limited Jurisdiction: Jurisdiction confined to special, particular or
limited cases.
Eg. Income Tax Tribunal can deal with only IT matters.
 Legal and Equitable Jurisdiction
 Legal: Speaks only about law. Jurisdiction exercised by Common Law Courts
in England.
 Equitable: Jurisdiction exercised by Equity courts.
Courts in India are courts both of law and equity.
  Municipal and Foreign Jurisdiction
 Municipal/Domestic Jurisdiction: Jurisdiction exercised by municipal Courts,
i.e., courts in a country.
 Foreign Jurisdiction: Jurisdiction exercised by a court in a foreign country.
Judgement rendered by a foreign court is a ‘Foreign Judgement’.
 Expounding and Expanding
 Expounding: Define, clarify and explain jurisdiction.
 Expanding: Expand, enlarge or extend the jurisdiction.
It is duty of the court to expound its jurisdiction. But it is not proper for a Court to expand its
jurisdiction.
Sec. 9: JURISDICTION OF CIVIL COURTS
 Under the CPC, a civil court has jurisdiction to try all suits of a civil nature unless
they are barred.
Barred—expressly or impliedly.
 Conditions:
i. Suit must be of a civil nature
ii. Cognizance of such suit should not have been expressly or impliedly barred.
 Explanation 1: Civil nature—right to property or right to an office.
 Explanation 2: It is immaterial whether the office having any fees attached or whether
the office is attached to a particular place.
Suit of Civil Nature
 In order that a civil court may have jurisdiction to try a suit, the 1st condition is the
suit must be of a civil nature.
 Civil has not been defined in the Code, but according to dictionary meaning it pertains
to private rights and remedies which is different from criminal, political etc.
 Nature means content. So, civil nature means: Where principal question is relating to
the determination of the civil right and enforcement thereof.
 The subject-matter decides whether a case is of a civil nature or not.
 The expression “Suits of civil nature” will cover private rights and obligations of a
citizen. Purely political and religious questions are not covered by this expression.
 When the principal question relates to caste or religion—it is not a suit of civil nature.
 Sinha Ramanuja v. Ranga Ramanuja
 After 1976, the explanation raised a question: Whether a suit relating to religious
office is of civil nature or not?
 Illustrations as to Civil Nature Suits:
 Suits relating to Right to Property;
 Suits relating to Right to Worship;
 Taking out religious Procession;
 Right to shares in offerings;
 Damages for Civil Wrongs;
 Specific Performance of Contracts;
 Specific reliefs;
 Restitution of Conjugal Right;
 Dissolution of Marriage;
  Relating to Rent;
 Relating to Accounts;
 Rights of Franchise;
 Rights to hereditary office;
 Rights to Yajmanvritis;
 Suits relating to salaries, dismissal from service;
 Suits not of Civil Nature
 Suits involving principally caste questions;
 Purely religious rites or ceremonies;
 Upholding mere dignity or honor;
 Suits for recovery of voluntary payments or offerings;
 Suits against expulsions from caste.
Cognizance Not Barred
 As stated above, a litigant having a grievance of a civil nature has a right to institute a
civil suit unless its cognizance is barred, either expressly or impliedly.
 Suits Expressly Barred
 Expressly barred is when it is barred by any enactment for the time being in
force.
 It is open to the competent legislature to bar jurisdiction of civil courts w.r.t a
particular class of suits of a civil nature, provided that it should not contravene
any provision of the Constitution.
 Presumption—in favor of the jurisdiction, and exclusion of jurisdiction must
be strictly proved.
 Thus, expressly barred means when a matter is falling within exclusive
jurisdiction under special enactments, no general civil court can have
jurisdiction over that subject-matter.
 Example: Revenue Courts, Special Tribunals (Election Tribunals, Rent
Tribunals, Cooperative Tribunal, Motor Accidents Claims Tribunals), Bar
Council, Medical Council, University.
 State of TN v. Ramalinga Samigal: If the remedy provided by the statute is
not adequate and all questions cannot be decided by a special tribunal, the
jurisdiction of a civil court is not barred.
 Suits Impliedly Barred
 A suit is said to be impliedly barred when it is barred by general principles of
law.
 Where an act creates an obligation and enforces its performance in a specific
manner, that performance cannot be enforced in any other manner.
 Certain suits, though of civil nature, are barred from cognizance of a civil
court on the ground of public policy. The underlying principle behind this is:
“Court ought not to countenance matters which are injurious to and against the
public weal”.
 Examples are as follows:
o Suit barred by limitation;
o No suit shall lie for recovery of costs incurred in a criminal
prosecution;
 o No suit shall lie for the enforcement of a right upon a contract hit by
Sec. 23 of the Indian Contract Act, 1872;
o No suit shall lie against any judge for acts done in the course of his
duties.
Who may decide Jurisdiction?
 A civil court has inherent powers to decide its own jurisdiction (Vatia Co. Housing
Society Limited v. DC Patel)
Burden of Proof
 It is well-settled that the party who seeks to oust the jurisdiction of a civil court must
establish it.
 It is equally well-settled that a statute ousting the jurisdiction of a civil court must be
strictly construed (interpreted).
 In case of a doubt as to jurisdiction, the Court should lean towards the assumption of
jurisdiction.
 Cases:
 Dhula Bhai v. State of MP
 Rajasthan SRTC v. Krishna Kant
 Chandrakant v. Municipal Co. of Ahmedabad
Presumption
 Every presumption should be made in favor of jurisdiction, unless it is expressly or
impliedly barred and it is proved that the Court has no jurisdiction to deal with those
cases.
General Principles (Summary of Jurisdiction)
i. Civil Court has jurisdiction to try all suits of a civil nature.
ii. Unless cognizance of such suit is barred, either expressly or impliedly.
iii. Consent can neither confer nor take away jurisdiction.
iv. Decree passed by a Court without jurisdiction is a nullity.
v. There is a difference between ‘Want of Jurisdiction’ and ‘Irregular Exercising of
Jurisdiction’.
vi. Every Court has inherent power to decide the question of its own jurisdiction.
vii. Jurisdiction of a Court depends upon the averments made in a Plaint.
viii. For deciding jurisdiction of a Court, subject-matter is essential.
ix. Every presumption should be made in favor of the jurisdiction.
x. Burden of Proof on the party who denied the jurisdiction.
xi. Even if when the jurisdiction is barred, it can still decide whether the provisions of the
act have been complied with or not.
 HIERARCHY OF CIVIL COURTS
SUPREME COURT
HIGH COURT
Non-Metropolitan Area Metropolitan Area
District Court (District Judge) City Civil Courts (Metropolitan Area)
Sub-Court (Senior Civil Judge) Courts of Smaller Causes
Principal Junior Civil Judge
Munsiff Court (District Munsiff or Junior Civil Judge)
 RES-SUBJUDICE AND RES-JUDICATA
Sec. 10: RES-SUBJUDICE
 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 them, or any of them claim, litigating under
the same title—where the suit is pending:
i. In the same Court; or
ii. Any other court in India; or
iii. Any Court beyond the limits of India—established or constituted by the
Central government; or
iv. Before the Supreme Court
 Explanation: Sec. 10 doesn’t include pending suits in foreign courts.
Nature and Scope
 Sec. 10 declares that no Court should proceed with the trial.
 The rule applies to trial of a suit and not the institution thereof.
 It also doesn’t preclude a Court from passing interim orders. It, however, applies to
appeals and revisions.
Object
 The object of the rule is to prevent courts of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in respect
of the same cause of action.
 The Policy of law is to confine a plaintiff to one litigation.
 The section protects a person from multiplicity of proceedings and avoid a conflict of
decisions.
 It also avoids inconvenience to the parties and gives effect to the rule of Res-Judicata.
 It is to be remembered that the section doesn’t bar the institution of a suit but only
bars a trial. So, the subsequent suit therefore, cannot be dismissed by the Court but
can be stayed.
Conditions
i. There must be 2 suits—one previously instituted, and another subsequently instituted.
ii. The matter in issue in the subsequent suit must be directly and substantially in issue
in the previous suit.
iii. Both suits must be between the same parties or their representatives.
iv. Previously instituted suits must be pending—in the same court/any other Indian
Court/any Court beyond India (established by Indian Government)/Supreme Court
v. The Court in which the previous suit is instituted must have the jurisdiction to grant
the relief claimed in the subsequent suit.
vi. The parties must be litigating under the same title in both suits.
  As soon as the above conditions are satisfied, the Court cannot proceed with the
subsequently instituted suit since the provisions contained in Sec. 10 are mandatory,
and no discretion is left with the Court.
 This order of staying can be made at any stage.
What is the Test which determines if the subsequent suit should be stayed or not?
If the decision of the previously instituted suit would operate as Res-Judicata in the
subsequent suit, then the subsequent suit must be stayed.
Sec. 11: RES-JUDICATA
 Sec. 11 of the Code embodies the Doctrine of Res Judicata (the rule of conclusiveness
of a Judgement).
 It enacts that once a matter is finally decided by a competent Court, no party can be
permitted to re-open it in subsequent litigation.
 This doctrine has been accepted in all civilized legal systems.
 Satyadhyan Ghosal v. Deorjin Debi: The principle of Res Judicata is based on the
need of giving a finality to Judicial Decisions. Once there is a res-judicata, it shall not
be adjudged again. It can be on a question of fact or a question of law decided
between 2 parties in one suit or proceeding. The decision is final either because:
i. No appeal was taken to a Higher Court; or
ii. The Appeal was dismissed; or
iii. No appeal lies.
NOTE: Appeal is the continuation of a suit.
 Sec. 11 of CPC reads:
 “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”.
 Explanation I (Former Suit): The expression ‘Former Suit’ shall denote a
suit which has been decided prior to the suit in question whether or not it was
instituted prior thereto.
o Former suit is seen on the basis of which suit was decided earlier/prior
and doesn’t depend on which was instituted prior. [Suit 1: Instituted-
Jan, Decided-April; Suit 2: Instituted: Feb, Decided-March—In this
scenario, 2nd suit, though instituted later than Suit 1, is the former suit
as it was decided earlier, i.e., in March].
 Explanation II (Right to Appeal): For the purposes of this section, the
competence of a Court shall be determined irrespective of any provisions as to
a right of appeal from the decision of such Court.
o If a Court’s decision cannot be appealed, this doesn’t affect the
doctrine of Res Judicata.
  Explanation III: The matter above-referred to must in the former suit have
been alleged by one party and either denied or admitted, expressly or
impliedly, by the other (actually in issue).
 Explanation IV: Any matter which might and ought to have been made
ground of defense or attack in such former suit shall be deemed to have been a
matter directly and substantially in issue in such suit. (Constructive Res
Judicata)
o House owned—Mortgage Deed and Gift deed—case filed on one
ground. Other ground can’t be claimed later.
 Explanation V: Any relief claimed in the plaint, which is not expressly
granted by the decree, shall, for the purposes of this section, be deemed to
have been refused.
 Explanation VI: Where persons litigate bona fide in respect of a public right
or of a private right claimed in common for themselves and others, all persons
interested in such right shall, for the purposes of this section, be deemed to
claim under the persons so litigating.
 Explanation VII: Res Judicata is applicable to execution proceeding (and all
the matters decided in that proceeding).
 Explanation VIII: An issue heard and finally decided by a Court of limited
jurisdiction competent to decide such issue shall operate as Res Judicata in a
subsequent suit not withstanding that such Court of limited jurisdiction was
not competent to try such subsequent suit in which such issue has been
subsequently raised.
Object
 The Doctrine of Res Judicata is the combined result of public policy reflected in (b)
and (c) and private justice, referred to in (a)
 (a). Private Justice—No man should be vexed twice for the same cause (Nemo Debet
Bis Vexari pro una et eadem causa).
 (b). It is the interest of the state that there should be an end to a litigation.
 (c). Judicial decision must be accepted as correct.
Conditions
1. The matter directly and substantially in issue in the subsequent suit or issue must be
the same matter which was directly and substantially in issue either actually
(Explanation III) or constructively (Explanation IV) in the former suit. (Explanation
I). (Read with Explanation VII)
2. The former suit must have been a suit between the same parties or between parties
under whom they or any of them claim. (Read with 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 or the suit in which such issue is subsequently raised. (Read with
Explanation II and VIII)
5. Matter directly and substantially in issue in the subsequent suit must have been heard
and finally decided in the former suit. (Read with Explanation V)
MATTER IN ISSUE

 A decision of a competent Court on a matter in issue may be res judicata in another

proceeding between the same parties.
 The expression “matter in issue” means the rights litigated between the parties (facts
on which the right is claimed and the law applicable to the determination of that issue)
 The matter of issue is of 3 types: Issue in fact, issue in law or one of mixed law and
fact.
Classification of Matters In Issue
Classified into 2 types:
i. Matter directly and substantially in issue (2 types: actually-in-issue, Constructively in
Issue)
ii. Matter collaterally or incidentally in issue
Matter Directly or Substantially in Issue (Explanation III)
 Directly means—directly at once, immediately or mainly. A matter/fact is direct when
the judgement stands on that fact.
 Substantially means—essentially, materially, or certainly. I should be the important
fact of that case.
 A fact is collaterally or incidentally in issue where the judgement is not dependent on
the existence or non-existence of that fact.
 The question as to directly and substantially in issue is dependent upon the fact:
whether the decision of the Court is materially dependent on that or not.
Matter Actually in Issue
 The matter alleged by one party and either denied or admitted by, expressly or
impliedly, by the other party—is said to be the matter ‘actually in issue’.
 Generally, asserted by the plaintiff and admitted/denied by the defendant.
Matter Constructively in Issue (Explanation IV)
 A matter can be said to be constructively in issue when it might and ought to have
been made a ground of defense or attack in the former suit.
 The principle underlying Explanation IV is that—Where the parties have had an
opportunity of controverting a matter, that should be taken to be the same thing as if
the matter had been actually controverted and decided.
 The object of Explanation IV—To compel the plaintiff or defendant to take all the
grounds of attack or defense which were open to him. In other words, all the grounds
of attack and defense must be taken in the suit. (A party is bound to bring forward his
whole case in respect of the matter in issue).
 Explanation IV to Sec. 11 is an artificial form of Res Judicata. If a plea could have
been taken by a party, he should not be permitted to take the plea against the same
party in a subsequent proceeding with reference to the same subject matter.
(Object: No harassment to the other party)
 Case: Workmen v. Board of Trustee, Cochin Port Trust: When any matter which
might and ought to have been made a ground of defense or attack in a former
 proceeding, but was not made so, then such a matter, in the eye of law, to avoid
multiplicity of litigation and to bring about finality in it, is deemed to have been
constructively in issue, and therefore, is taken as decided.
Might and Ought
 The primary object of Explanation IV is to cut short the litigation by compelling the
parties to the suit to rely upon all grounds of attack or defense which is available to
them.
 The expression ‘might and ought’ are of wide importance.
 Might: Pre-supposes the party affected had knowledge of the ground of
attack/defense at the time of the previous suit.
 Ought: Compel the party to take such ground.
Matters Collaterally and Incidentally in Issue
 The words ‘directly and substantially in issue’ have been used in Sec. 11 in
contradiction to the words co-laterally or incidentally in issue.
 Decisions on matters co-lateral or incidental to the main issues in a case will not
operate as res judicata.
 It refers to a matter in respect of which no relief is claimed and yet it is put in issue to
enable a Court to adjudicate upon the matte which is directly and substantially in
issue.
 Case: Gangabai. V. Chhabubai
SUIT
 The expression ‘suit’ has not been defined in the Code, but it means a proceeding
which is commenced by the presentation of a Plaint.
 Case: Hansraj Gupta v. Official Liquidators of the Dehradun-Mussoorie Electric
Tramway Co. Ltd. (1933)
 The word ‘suit’ in Sec. 11 means a proceeding in a court of 1st instance though the
general principle of Res Judicata applies to appellate proceedings also.
Former Suit (Explanation I)
 The expression ‘Former Suit’ shall denote a suit which has been decided prior to the
suit in question, whether or not it was instituted prior thereto.
 It is not the date on which the suit is filed that matters, but the date on which the suit
is decided. Even if a suit was filed later, it will be a former suit within the meaning of
Explanation I if it has been decided earlier.
ISSUE: Meaning
 Sec. 11 bars the trial of any suit as well as an issue which had been decided in a
former suit.
 Issues are of 3 kinds:
i. Issues of Fact;
ii. Issues of Law;
iii. Mixed issues of law and fact.
 A decision on an issue of fact, however erroneous it may be, constitutes Res Judicata.
  A mixed issue of law and fact also operates as Res Judicata.
 There were conflicting views on the question as to how far a decision on a question of
law would operate as res judicata.
 Case:
 Mathura Prasad v. Dossibai NB Jeejeebhoy: Generally, the decision of a
competent court, even on a point of law, operates as Res Judicata. However, a
pure question of law unrelated to facts which gives rise to a right doesn’t
operate as Res Judicata.
Example: Where cause of action is different, or where the law has been altered
by a competent authority, or where the decision is relating to the jurisdiction
of the court to try the earlier proceeding, or where the earlier decision as
declared valid, which is prohibited by law—doesn’t operate as Res Judicata in
subsequent proceeding.
 Avtar Singh v. Jagjit Singh: A pure question of law unrelated to the facts and
touching the jurisdiction of the Court—doesn’t operate as res judicata.
 Res Judicata cannot supersede the law of the land.
SAME PARTIES
 The 2nd condition of Res Judicata is that the former suit must have been a suit between
the same parties or between the parties under whom they or any of them claim.
 A party is a person whose name appears on the record at the time of the decision.
 Persons other than the parties may be divided into following categories:
a) Persons who claim under the parties to the suit—generally known as
‘Privies’;
b) Persons not claiming under the parties but represented by them;
c) Interveners;
d) Minors;
e) Strangers
 In order to sustain the plea of res judicata, it is not necessary that all the parties to the
2 litigations must be common. All that is necessary is that the issue should be between
the same parties, or between the parties under whom they, or any of them claim.
Res Judicata between Co-Defendants
 Yes, it applies, if the following conditions are satisfied:
a) There must be a conflict of interest between co-defendants;
b) It must be necessary to decide the conflict in order to give relief to that
plaintiff;
c) The question between co-defendant must have been finally decided;
d) The co-defendants were proper parties
 Case:
 Cottingham v. Earl of Shrewsbury
 Mahboob Sahab v. Syed Ismail
Res Judicata between Co-Plaintiffs
 Just as a matter may be res judicata between co-defendants, so also, it may be res
judicata between co-plaintiffs.
  If there is a conflict of interest between plaintiffs and it is necessary to resolve the
same by a Court in order to give relief to a defendant and the matter is in fact decided,
it will operate as Res Judicata between co-plaintiffs in the subsequent suit.
Pro Forma Defendant
 A defendant to a suit against whom no relief is claimed is called a pro forma
defendant.
 A person may be added as a pro forma defendant to a suit merely because his
presence is necessary for a complete and final decision of the questions involved in a
suit.
 Since no relief is claimed against him, a finding doesn’t operate as res judicata in a
subsequent suit against him.
Interveners
 An intervener is one who intervenes in a suit in which he was not originally a party.
 A person may intervene in a suit, either on his own behalf or on behalf of the parties
with the leave of the court.
 Such intervener is considered to be a party to the suit once he is permitted to
intervene, no matter at what stage of the suit he intervenes.
 The decision in the suit will operate as Res Judicata in a subsequent suit by or against
such person.
Minor
 When a suit is filed against a minor who is duly represented by a guardian or next
friend—the decree binds the minor.
 But if the decree is obtained against the minor not represented by any guardian or
there is fraud/collusion/gross negligence of the guardian—a decree passed in the suit
will not operate as Res Judicata against him in a subsequent suit.
Parties under whom they or any of them claim
 Explanation VI to Sec.11 deals with representative suits, i.e., suits instituted by or
against a person in his representative capacity.
 When representative suit is brought, law assumes that all person who have the same
interest as the plaintiff in the representative suit, where represented by the said
plaintiff and therefore, are constructively barred by Res Judicata.
 Conditions:
i. There must be a right claimed by one or more persons in common for
themselves and others (not expressly named in the suit).
ii. The parties not expressly named in the suit, must be interested in such rights.
iii. The litigation must have been conducted bona fide and on behalf of all
interested parties.
iv. If the suit is under Order I (R.8)—all conditions laid down there in must have
been strictly complied with.
Public Interest Litigation
 If its bona fide—res judicata will apply to it.
Same Title
 The 3rd condition of res judicata is that the parties to the subsequent suit must have
litigated under the same title as in the former suit.
 Same title means: same capacity to file that suit. The right should be same in the
subsequent suit.
 Title refers to the capacity or interest of a party that is to say, whether he sues or is
sued for himself in his own interest, or for himself as representing the interest of
another, or as representing the interest of others along with himself
 Illustration:
 A sues B for title to property, as an heir of C. This suit is dismissed. The
subsequent suit for title as an heir of C is barred. [1st claim—Customary law,
2nd claim under Personal Law]
 A sues B for possession of property as an owner on the basis of gift deed.
Later on, cannot file a subsequent suit as to ownership on the basis of
mortgage deed.
Competent Court
 The Court which decided the former suit must have been a court competent to try the
subsequent suit. Thus, the decision in a previous suit not to try to compel subsequent
suit will not operate as Res Judicata.
 Here ‘competent’ means competent to try the subsequent suit if brought at the time
the 1st suit was brought.
Position Prior To Explanation II
 Under the Code of 1882, it was held by the HC of Bombay, Madras and Punjab that a
prior decision in which no 2nd appeal lies could not operate as Res Judicata in a
subsequent suit.
 HC of Calcutta held: Such decision would operate as Res Judicata.
Position After Explanation II
 S. 11 makes it clear that for the purpose of Res Judicata the competence of the Court
shall be determined irrespective of any provision as to a right of appeal from the
decision of the Court (should be heard and finally decided).
Heard and Finally Decided
 The 5th condition of Res Judicata is that the matter directly and substantially in
issue in the subsequent suit must have been heard and finally decided by a
Court in the former suit.
 Heard and finally decided means a matter on which the Court has exercised its
judicial mind and has, after the argument and consideration come to a decision
on the concerned matter.
 A matter can be said to have been heard and finally decided:
o Ex-Parte
o By Failure to Produce Evidence
Relief Claimed but Not Granted (Explanation V)
  Sec. 11 provides that if a relief is claimed in a suit but it is not expressly granted it
will be deemed to have been refused and the matter in respect of which the relief is
claimed will be Res Judicata.
 Res Judicata is applicable to:
 Execution Proceedings
 Industrial Adjudication
 Criminal Proceedings
 Writ Petitions
 Ex-Parte Decree
 Erroneous Decisions
 Res Judicata is not applicable to:
 Habeus Corpus Petition
 Taxation matters
 Compromised Suits
 Fraudulent Decree
 Withdrawal of Suit
 Change in law retrospective operationally
 PIL
AR Antulay v. RS Nayak
 S. 12—Where a plaintiff is precluded by rules from instituting a further suit in respect
of any particular cause of action, he shall not be entitled to institute a suit in respect of
such cause of action in any Court to which this Code applies.
 The following suits will be barred by Court if filed again:
 S. 11
 S. 21A
 S. 47(1)
 S. 95(2)
 S. 114(2)
 Order 2, R.9
 Order 9, R. 9
 Order 11, R. 21
 Order 22, R. 9
 Order 23, R. 1, R. 3A
 FOREIGN JUDGEMENT
FOREIGN JUDGEMENT: INTRODUCTION

 Sec. 13 and 14 enact a rule of Res Judicata in case of Foreign Judgement.

 This provision is based upon the principles of Private International Law.
 Judgement delivered by a foreign court of competent jurisdiction can be enforced by
an Indian Court and will operate as Res Judicata.
NATURE AND SCOPE (S. 13)

 The section is not confined in its application to plaintiff. A defendant is equally

entitled to non-suit the plaintiff on the basis of foreign judgement.
OBJECT

 The rules of Private International Law of each state must be in the very nature of
things differ but by the committee of nations, certain rules are recognized as common
to civilized jurisdictions.
 Though parts of the judicial system of each state, these common rules have been
adopted to adjudicate upon disputes involving a foreign element and to effectuate
judgements of foreign courts in certain matters or as a result of International
Conventions.
BINDING NATURE OF FOREIGN JUDGEMENT

 The CPC provides that a foreign judgement shall be conclusive as to any matter,
thereby directly adjudicated upon between the same parties or between the parties
under whom they or any of them claim, litigating under the same title, except:
a) Not been pronounced by a Court of competent jurisdiction
b) Not been given on the merits
c) Incorrect view of International Law has been taken
d) Refusal to recognize the law of India
e) Opposed to Natural Justice
f) Breach of law in force in India
Foreign Judgement not by a Competent Court
 It is a fundamental principle of law that the judgement or order passed by the Court
which has no jurisdiction is null and void.
 A foreign judgement is conclusive between the parties only when it is by a competent
court.
 Example: A sues B in a foreign court. Suit is dismissed. The decision will operate as
bar to fresh suit by A in India on the same cause of action.
If the decree is passed in favor of A, B will be precluded from putting in issue the
same matters.
 Case: Gurdyal Singh v. Rajah of Faridakote: A court has no jurisdiction to pass a
decree in respect of immovable property situated in a foreign state.

Foreign Judgements not on Merits

  The foreign judgements must have been given on merits of the case. A judgment is
said to have been given on merits when after taking evidence and after applying its
mind, regarding the truth and falsity of the given case, the judge decides the matter
 Following are some cases where judgement is not on merits:
 Dismissed for default of appearance
 Dismissed for non-production of documents.
Foreign Judgement against International Law or Indian Law
 A judgement based upon an incorrect view of International Law or a refusal to
recognize the law of India, where such law is applicable, is not conclusive.
 The mistake must be apparent on the face of the proceedings.
 Example: According to the general principle of Private International Law that the
rights and liabilities of the parties to a contract are governed by the place where the
contract is made (Lex Loci Contractus).
When a suit instituted in England on the basis of a contract made in India, the English
Court erroneously applied English law—this will be a breach of Private International
Law.
Foreign Judgement Opposed to Natural Justice
 It is the essence of a judgement of a court that it must be obtained after due
observance of the judicial process, i.e., the court rendering the judgement must
observe the minimum requirements of natural justice:
 Must be an impartial person;
 Must have acted fairly;
 Without any bias;
 Good faith;
 Should give reasonable notice to the parties;
 Giving adequate opportunity of presenting case;
 But, if a judgement is biased or based on partiality—it will be null, and trial ‘non
coram judice’.
Foreign Judgement obtained by Fraud
 It is a well-established principle of Private International Law that if a foreign
judgement is obtained by fraud, it will not operate as Res Judicata.
 The fraud and justice never dwell together (Fraus et jus nunquam cohabitant).
 Fraud and deceit ought to benefit none. (Fraus et dolus nemini patrocinari debent).
 No judgement/order of a court can be allowed to stand if it has been obtained by
fraud.
 All judgements pronounced by domestic or foreign courts are void if obtained by
fraud.
 A.V Papayya Sastry v. Govt. of AP: SC—fraud may be defined as an act of
deliberate deception, with a design of securing some unfair or undeserved benefit, by
taking undue advantage of another.
 Satya v. Teja Singh
Fact: Husband obtained a decree of divorce against his wife from an American Court
by showing that he was domiciled in America.
 Judgement: SC held—Decree was a nullity, because he had played fraud on a foreign
court.
Foreign Judgement founded on breach of Indian Law
 Where a foreign judgement is founded on the breach of any law in force in India, it
will not be enforced in India.
 The rule of Private International Law cannot be adopted mechanically and blindly.
 Every case which comes before an Indian Court must be decided in accordance with
Indian Law.
 Foreign law must not offend our public policy. Thus, a foreign judgement deciding
upon a debt which is barred under the law of limitation in India is not conclusive.
 Likely, a decree for divorce passed by a foreign court cannot be confirmed by an
Indian Court if under the Indian law the marriage is indissoluble.
Sec. 14: PRESUMPTION AS TO FOREIGN JUDGEMENTS

 S. 14 of the Code declares that the Court shall presume upon production of any
document purporting to be a certified copy of a foreign judgement that such
judgement was pronounced by a Court of competent jurisdiction, unless the contrary
appears on the record.
 Narsimha Rao v. Venkata Lakshmi
 Foreign judgement is conclusive and will operate as Res Judicata between the parties
and not strangers.
ENFORCEMENT OF FOREIGN JUDGEMENT

 Foreign judgement can be enforced in the following ways:

i. By instituting a suit on such foreign judgement;
ii. By instituting execution proceedings.
 Suit on Foreign Judgement
 General Principle: Any decision by a foreign court is not enforceable in a
country unless such decision will be a decree of a court of that country.
 In such suit, the court cannot go into the merits of the original claim and it
shall be conclusive as to any matter.
 Such suit must be filed within a period of 3 years from the date of judgement.
 Execution Proceedings
 A foreign judgement may also be enforced by proceedings in execution in
certain specified cases (S. 44A).
 Where a certified copy of a decree of any superior courts of any reciprocating
territory has been filed in the District Court, the decree may be executed in
India as if it had been passed by the District Court, and the decree will be
executed under S. 44A only if all the conditions of Sec. 13A to 13F are
satisfied.
 Place of suing
 Suits may be of different types.
 They may relate to immovable or movable property.
 They may be based on contracts or torts.
 They may be matrimonial proceedings.
 They may be suits for accounts and so on.
 ‘Place of suing’ simply means the venue of trial and S. 15-20 of the CPC regulate the
forum for the institution of suits.
PECUNIARY JURISDICTION

 Every suit shall be instituted in the court of the lowest grade which is competent to try
it. It thus directs the plaintiff to institute a suit in the court of the lowest grade.
 S. 15 of the Cod refers to the pecuniary jurisdiction of the Court. It is a rule of
procedure. Hence, a decree passed by a Court of a higher grade cannot be said to be
without jurisdiction.
 Mere irregularity in exercise of jurisdiction will not make the decree passed by the
Court a nullity.
 Object: The object underlining this provision is 2-folds:
i. To see that the courts of higher grades shall not be overburdened with suits.
ii. It affords convenience to the parties and witnesses who may be examined in
such suits.
Mode of Valuation
 Prima facie, it is the plaintiff’s valuation in the plaint that determines the jurisdiction
of the Court and not the amount for which ultimately the decree may be passed by the
Court.
 If the pecuniary jurisdiction of the Court of the lowest grade is Rs 10000 and plaintiff
files the suit for account and finally Court finds Rs 15000 on due, the Court will not
be deprived of its jurisdiction to pass the decree for that amount.
 Usually, a court will accept a valuation of the plaintiff in the plaint and proceed to
decide the suit on merits. That doesn’t however mean that the plaintiff in all cases is
at liberty to assign any arbitrary value to the suit.
 If the plaintiff deliberately undervalues or overvalues the claim for the purpose of
choosing the forum, the plaint cannot be said to be correctly valued and it is the duty
of the Court to return it to be filed in the proper court.
 The court may require the plaintiff to prove that the valuation is proper.
 If the Court is unable to come to a finding regarding the correct valuation of the relief,
the Court has to accept the valuation of the plaintiff.
TERRITORIAL JURISDICTION

 For the purpose of territorial jurisdiction of the Court, suits must be divided into 4
classes:
i. In respect of Immovable property;
ii. In respect of Movable property;
iii. Compensation for wrong; and
 iv. Other suits
Immovable Property (S. 16-18)
 Sec. 16 states the following:
1. Suits for recovery of immovable property;
2. Partition of Immovable Property;
3. Foreclosure, sale or redemption;
4. Determination of any other right or interest in immovable property;
5. Suit for torts/wrongs for immovable property.
 These suits must be filed in the court within the local limits of whose jurisdiction the
property is situated.
 Sec. 17: Question—What will happen if the property is situated within the jurisdiction
of more than1 Court?
According to Sec. 17, the suit can be filed in the court within the local limits of whose
jurisdiction any portion of the property is situated and this provision is intended for
the benefits of suitors and to prevent multiplicity of suits.
 Sec. 18: Uncertain—Where the property is situated: One of these courts may, after
recording the statement to that effect, proceed to entertain and dispose of the suit.
Movable Property (S. 19)
 Maxim: Mobilia Sequentur Personam (Movables follow the person)
 A suit for wrong to movable property may be brought at the option of the plaintiff,
either at the place where:
i. The wrong is committed; or
ii. The defendant resides; or
iii. The defendant carries on business or personally works for gain.
 Wrong consists of a series of acts, a suit can be filed at any place where any of such
acts has been committed.
 Where a wrongful act is committed in one place and the consequences ensure at
another place.
 A suit can be instituted where the actions took place and the consequences ensued.
Compensation for Wrong (Sec. 19)
 Where the wrong is committed or where the defendant resides, carries on business or
personally works for gain.
Other Suits (Sec. 20)
 Where the cause of action wholly or partly arises
 Where the defendant resides, carries on business or personally works for gain.
 Where there are 2 or more defendants, any of them resides or carries on business or
personally works for gain,
Provided: In such case, either:
i. The leave of the court is obtained; or
ii. The defendants who do not reside, consent in such institution.
JURISDICTION AS TO SUBJECT-MATTER
  Different courts have been empowered to decided different types of suits.
 Certain courts have no jurisdiction to entertain certain suits.
Example: Court of Civil Judge Junior Division cannot entertain suits for testamentary
succession, divorce, probate, insolvency etc.
 Where the Court has no jurisdiction over the subject-matter, there is inherent lack of
jurisdiction and a decree passed, judgement rendered or order made will be a nullity.
OBJECTION AS TO JURISDICTION (Sec. 21)

 It is a fundamental rule that a decree of a court without jurisdiction is a nullity.

 This doesn’t however apply to territorial or pecuniary jurisdiction, unless the
objection is raised at the earliest as possible.
 Object: To protect honest litigants and to avoid harassment to plaintiffs who have
acted in bona fide way and in good faith, initiated proceedings in a Court which later
on was found to be lacking jurisdiction.
Objection as to Territorial Jurisdiction
 Under S. 21(1), no objection as to the place of suing will be allowed by an appellate
or revisional court unless the following 3 conditions are satisfied:
i. The objection was taken in the Court of 1st Instance.
ii. It was taken at the earliest possible opportunity.
iii. There has been a consequent failure of justice.
 All these 3 conditions must co-exist.
 S. 21 is the statutory recognition of the said principles and provides that the defect as
to the place of suing u/S. 15-20 may be waived.
Objection as to Pecuniary Jurisdiction
 As a general rule, it is the plaintiff’s valuation in the plaint that determines the
jurisdictions of the Court and not the amount for which ultimately the decree may be
passed.
 But, if the defendant disputes the valuation, it is the duty of the trial court to enquire
into it and pass an appropriate order.
 But no objection as to over-valuation or under-valuation will be allowed by any
appellate or revisional Court, unless the following 3 conditions exist:
i. The objection was taken in the court of 1st instance.
ii. It was taken at the earliest possible opportunity.
iii. There has been a consequent failure of Justice.
 All these 3 conditions must co-exist.
 Kiran Singh v. Chaman Paswan: The SC rightly observed that if the fact of an
appeal being heard by a subordinate or district court where the appeal would have laid
to the HC if the correct valuation had been given, is itself a matter of prejudice, then
the decree passed by the subordinate court must, without more, b liable to set aside,
and the words ‘unless the overvaluation or undervaluation thereof has prejudicially
affected the disposal of the suit or appeal on its merits’ would be wholly useless.
 Subhas v. Nemasa: Where there have been pre-judice or not—is a matter to be
determined on the facts of each case.
Objections as to Execution Proceedings
  S. 21(3) makes it clear that the principles of this section apply to execution
proceedings also.
 Position Prior to the Amendment Act of 1976: S. 21 originally did not in terms apply
to execution proceedings.
 Position after Amendment Act of 1976: An objection as to territorial jurisdiction or
pecuniary jurisdiction can be allowed in an execution proceeding if all the conditions
are fulfilled.
 Hira Lal v. Kali Nath: The SC applied the principle of S. 21 to execution
proceedings.
Sec. 21(A): BAR OF SUITS
 No substantive suits can be filed to set aside a decree passed by a Court on an
objection as to the place of suing.
 INSTITUTION OF SUITS
GENERAL
 Sec. 26 to 35B
 Orders 1 to 20—Procedure relating to suits.
 Order 1, 2 and 4—parties to suit, frame of suit and institution of suit.
ESSENTIALS OF SUIT
 There are 4 essentials of a suit:
i. Opposing Parties
ii. Subject-matter in dispute
iii. Cause of action
iv. Relief
PARTIES TO SUIT: ORDER 1
GENERAL

 Order 1 deals with the parties to a suit.

 It also provides for:
 addition, deletion and substitution of parties,
 joinder, mis-joinder and non-joinder of parties.
 Order 1 also made provision for ‘Representative Suit’.
JOINDER OF PART IES

 The question of joinder of parties may arise either as regards the plaintiffs or as
regards the defendants.
 Joinder of Plaintiffs (Rule 1)
 All persons may be joined in 1 suit as plaintiffs if the following 2 conditions
are satisfied:
i. The right to relief alleged to exist in each plaintiff arises out of the
same act/transaction; and
ii. The case is of such character that, if such persons brought separate
suits, any common questions of law or fact would arise.
 Primary objective of Rule 1: Avoid multiplicity of proceedings and
unnecessary expense.
 Joinder of Defendants (Rule 3)
 All persons may be joined in 1 suit as defendants if the following 2 conditions
are satisfied:
i. Right to relief alleged to exist against them arises out of the same
act/transaction; and
ii. The case is of such a character that, if separate suits were brought
against such person, any common question of law/fact would arise.
 Primary objective of Rule 3: Avoid multiplicity of proceedings and
unnecessary expense.
 Where it appears to the court that any joinder of plaintiff or defendants may embarrass
or delay the trial of the suit—it may pass an order for separate trials. (Rule 2 and 3A)
NECESSARY AND PROPER PARTIES

 There is essential distinction between a necessary party and a proper party to a suit.
 Necessary Party
i. One whose presence is indispensable to the constitution of suit.
ii. Without whom no effective order can be passed.
 Proper Party
i. In whose absence an effective order can be passed.
ii. Presence is necessary for a complete and final decision on the question.
 In absence of necessary party, no decree can be passed. Whereas in case of proper
party, a decree can be passed in its absence, but if proper party is present—the decree
can be passed more effectively.
 Whether for a party to be necessary—it is to be determined by deciding:
i. There must be a right to relief sought against such party in respect of matter
involved in the proceeding in question;
ii. Decree of relief not possible to be passed in its absence.
NON-JOINDER AND MIS-JOINDER OF PARTIES (Rule 9)

 Where necessary or proper party has not been joined as a party to a suit—it is a case
of non-joinder.
 Mis-joinder—If 2 or more persons are joined as plaintiff or defendants in one suit in
contravention of Order 1 (R. 1 and 3) respectively, and they are neither necessary or
proper parties.
 General Rule: Suit cannot be dismissed on the ground of non-joinder or mis-joinder of
parties, nor a decree passed by a competent court on merits will be set aside on the
ground of mis-description of defendant. However, proviso to R. 9—this rule doesn’t
apply in case of non-joinder of a necessary party.
 B. Prabhakar Rao v. State of AP: If the decree is not affecting the interests of the
persons who were not joined, or there is no miscarriage of justice, the decree shall not
be dismissed on the ground of non-joinder.
 Laxmi Shankar v. Yashram: On account of mis-joinder or non-joinder not affecting
the merits of the case, no decree or order can be reversed (doesn’t apply to non-
joinder of necessary party).
OBJECTIONS AS TO NON-JOINDER OR MIS-JOINDER OF PARTIES (Rule 13)

 Objections as to non-joinder or mis-joinder must be taken at the earliest opportunity,

otherwise they will be deemed to have been waived.
 If objection as to non-joinder of necessary party has been taken by the defendant at
the earliest stage and the plaintiff declines to add the necessary party—the plaintiff
cannot subsequently be allowed in appeal to rectify the error.

STRIKING OUT/ADDING/SUBSTITUTING PARTIES (Rule 10)

 Adding or substituting plaintiffs

  If after filing the suit, the plaintiff discovered that he cannot get the relief he
seeks without joining some other person also as a plaintiff or where it is found
that some other person and not the original plaintiff is entitled to relief, as
prayed for, an application for addition or substitution of the plaintiff can be
made.
 Object of this Provision: Save honest plaintiffs, believing bona fide in the
maintainability of their claims being non-suited on a mere technical ground.
 The provision therefore, must be liberally construed so as to advance the cause
of justice.
 To bring case within this sub-rule, the following 3 conditions must be
satisfied:
i. The suit has been filed in the name of wrong person as plaintiff;
ii. Such mistake must be bona fide; and
iii. The substitution/addition of the plaintiff is necessary for the
determination of the real matter in dispute.
 Such amendment may be allowed by the court at any stage of the suit, even at
the appellate stage.
 R. 10 (3): No person can be added as a plaintiff without his consent.
 Striking Out or Adding Parties
 Sub-rule 2 of Rule 10 empowers the Court to add any person as a party to the
suit on either of the two grounds:
i. Such person ought to have been joined as plaintiff or a defendant and
is not so joined; or
ii. Without his presence, the question involved in the suit cannot be
completely decided.
 The purpose of this provision is to bring before the Court, at the same time, all
the persons interested in the dispute, so that the dispute may be finally
determined at the same time in the presence of all the parties without the delay
inconvenience and expense of several actions, trials and inconclusive
adjudications (Anil Kumar v. Shivnath).
 It is the wide discretionary power of the Court to add the parties, so that the
case can be adjudicated judiciously.
Power and Duty of Court
 Order 1, R.10 (Sub-rule 2): Confers very wide power on the Court regarding the
joining of parties. Such powers have been exercised on sound judicial principles,
keeping in mind all facts and circumstances of the case.
 2 considerations have to be kept in mind:
i. Plaintiff is a Dominus Litis (best judge of his own interest). It is therefore for
him, to choose his opponent from whom he claims relief. Normally, the court
should not compel him to fight against a person whom he doesn’t want to
fight.
ii. If the presence of the particular person is necessary to effectively and
completely adjudicate all the disputes between the parties, irrespective of the
wishes of the plaintiff, the court may exercise its power and join that person as
a party.
  The power may be exercised:
i. At any stage of the proceeding;
ii. On application;
iii. On suo moto;
iv. When the conditions appear to be just
 Anil Kumar v. Shivnath: The object of the rule is to bring on record all the persons
who are parties to the dispute relating to the subject-matter, so that the dispute may be
determined in their presence at the same time without any protraction, inconvenience
and to avoid multiplicity of proceedings.
Striking Out—Parties Improperly Joined
 Razia Begum v. Sahebzadi Anwar Begum: SC laid down the following principles
regarding the power of the Court to add the parties under Rule 10, Sub-rule 2:
i. Judicial Discretion
ii. Depending upon circumstances
iii. Party to be added should have a direct interest, but this can be relaxed if his
presence may help in an effective and complete adjudication.
 Effect: Where any person is added as defendant in the suit, the suit shall be deemed to
have been instituted from the date he joined as a party.
TRANSPOSITION OF PARTIES

 A person who is already on record as plaintiff or defendant, when seeks his

transposition from one capacity to another capacity— plaintiff to defendant or vice-
versa, it is called transposition of parties.
 It can be done by:
i. Application;
ii. Own Motion.
REPRESENTATIVE SUIT (Order 1, R. 8)
GENERAL PRINCIPLE

 All persons interested in a suit ought to be joined as parties to it, so that the matters
involved therein may be finally adjudicated.
 Rule 8 in an exception to this general principle.
 It provides that when there are number of persons similarly interested in a suit, one or
more of them, with the permission of the Court, or upon a direction from the Court,
sue or be sued on behalf of themselves or others.
 A representative suit is a suit filed by or against one or more persons on behalf of
themselves and others having the same interest in the suit.
OBJECT

i. To provide decision in a single suit to various persons.

ii. To save time
iii. To save expense
iv. To ensure a single comprehensive trial to avoid multiplicity of suits
v. To avoid parallel decisions
 Order 1, R. 8 is an enabling provision and doesn’t compel anyone if he doesn’t want.
CONDITIONS

i. Parties must be numerous

ii. Parties must have same interest
iii. Permission must have been granted
iv. Notice must have been issued to the parties whom it is proposed to represent in
the suit.
Numerous Persons
 1st requirement of R. 8—Numerous persons must be interested in the suit.
 It doesn’t have the same meaning as innumerable or number-less.
 It ordinarily implies to a group of persons.
 Not necessary that the number of persons should be capable of ascertainment.
 Necessary—the court should recognize them as participants in the suit.
Same Interest
 Interest must be common to them all, or they must have a common grievance—which
they seek to get redressed.
 Commonness of interest is therefore essential and a condition precedent for bringing
a representative suit.
 Same interest doesn’t necessarily mean same cause of action or same transaction.
Even if the persons who have separate cause of action under separate transaction, a
suit under Order 1, R.8 can be filed.
 TN Housing Board v. TN Ganapathy
 Facts: Residential buildings were allotted by the housing board to the
applicants who belonged to the low-income group. After settlement of price,
excess demand was made by the board. Allottees challenged the demand by
filing a suit in a representative capacity.
 Contended: Not maintainable because of separate causes of action.
 SC Held: Same interest—therefore, maintainable.
Permission must be granted
 The court has a discretionary power to grant permission to a person to sue in a
representative capacity.
 In deciding whether such leave is to be granted, the main point to be taken into
consideration by the Court is that there should be a community of interest.
 No particular form has been prescribed by the Court for grant of permission.
 Such permission may be express or implied.
Notice
 The decree passed in the representative suit is binding on the parties, unless decree is
passed by fraud or collusion.
 Therefore, it is absolutely necessary that the notice of the suit should be given to all
the parties who would be bound by the decree.
TITLE
  Where the suit is filed by or against persons in a representative capacity that fact
should be stated in the body of the plaint as well as in the title of the suit.
 Example: AB, (on behalf of himself) and all other creditors of CD—plaintiff
v.
CD—Defendants
ADDITION OR SUBSTITUTION OF PARTIES

 Sub-rule 3, Rule 8—Any person may apply to the Court to be added as a party to the
suit (by showing that the conduct of the suit is not in proper hands and his interests
will be seriously affected).
 Such application must be made without any delay.
 Such person can only be added as co-plaintiff or a co-defendant.
 Sub-rule 5—Where any person filing a suit in a representative capacity or defending a
representative suit doesn’t proceed with due diligence, the court may substitute in his
place any other person having the same interest in the suit. (Substitution only after
Amendment Act, 1976)
WITHDRAWAL OR COMPROMISE

 No suit can be withdrawn, no agreement can be compromise, satisfied or recorded in

any such suit under Order 23, Rule 3, unless the Court has given, at the plaintiff’s
expense, notice to all persons so interested in the manner specified in sub-rule 2—
either by personal service or by public advertisement.
 After Amendment Act, 1976: Order 23, Rule 3B—No agreement or compromise can
be entered without the leave of the Court.
CONDUCT OF SUIT (8A)

 8A empowers the Court to permit a person or body of persons interested in any

question of law to present his/its opinion in the Court.
 This is the discretionary power of the Court
 Rule 12—Plaintiff or the defendant may authorize 1 or more of them to
appear/plead/act for them.
 Representative suit, once decided, would operate as Res Judicata.
COST

 Parties on record.
 Exceptional cases—Off Record
 From property belonging to that community.

FRAME OF SUIT (Order 2)

 Every suit must include the whole of the plaintiff’s claim in respect of the cause of
action.
  Object: All matters in dispute relating to same cause of action should be disposed off
in the same suit.
AS FAR AS PRACTICABLE

 The court will have to see whether it is practicable for the plaintiff so to frame his suit
as to include a cause of action which he had omitted or intentionally relinquished.
SPLITTING OF CLAIM (Order 2, Rule 2)

 Order 2, R. 2— Every suit must include the whole of the claim to which the plaintiff
is entitled in respect of the cause of action, and
Where the plaintiff omits to sue, or intentionally relinquishes any portion of his claim,
he shall not afterwards be allowed to sue in respect of the portion so omitted or
relinquished.
 Object
i. To stop splitting of claims
ii. To stop splitting of remedies
 Naba Kumar v. Radha Shyam: Object undoubtedly to prevent multiplicity of suits.
The defendant should not be vexed twice for the same cause.
 Order 2, R. 2—Penal in nature.
 Conditions
 The 2nd suit must be in respect of the same cause of action.
 In respect of that cause of action, the plaintiff must be entitled to more than 1
relief
 Being thus entitled to more than 1 relief, the plaintiff omitted to sue for the
relief for which the 2nd suit has been filed.
 Omission is without leave of the Court.
 Same Cause of Action
 Unless the cause of action is same, there could be no bar to the subsequent
suit.
 The cause of action should not merely be similar, but it must be same.
 This rule doesn’t require that when several causes of action arise from one
transaction, the plaintiff should sue for all of them in one suit.
 What the rule lays down is that there is one entire cause of action, the plaintiff
cannot split the cause of action into parts so as to bring separate suits.
 This is about unity of all claims based on the same cause of action.
 If subsequent suit is based on different cause of action, the rule will not
operate.
 Thus, where the rent (cause of action) of several years is an arrears and the
plaintiff claims only of 1 year, he cannot subsequently sue for the rent of other
years.

 One of Several Reliefs

 Rule applies only where the plaintiff is entitled to more than one relief in
respect of the same cause of action and he omits to sue for all such reliefs.
  Example: Plaintiff files a suit for damages for breach of contract and omits to
claim a portion of damages for which he is entitled. A subsequent suit for such
portion is barred.
 This rule however, doesn’t apply when the right to relief in respect of which a
subsequent suit is brought doesn’t exist at the time of the previous suit.
 Leave of Court
 This rule applies only when ‘leave of court’ is not obtained. Therefore, if the
omission has been with the permission of the Court, the subsequent suit for the
same relief in respect of the same cause of action isn’t barred.
 The power of Court to grant leave is discretionary.
 Order 2, R. 2 applies only to suits and not to appeals, execution proceedings or
arbitration proceedings.
 This doesn’t apply to Article 226 of Indian Constitution.
JOINDER OF CLAIMS (Order 2, R. 4-5)

 Order 2 R. 4 and 5 provide for Joinder of Claims.

 Rule 4—in a suit for the recovery of immovable property, a plaintiff is not entitled,
without the leave of Court, to join any claim, except:
a) Claims for Mesne Profit 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 is sought based on same cause of action.
 Rule 5—Suit by or against executives/administrators/heirs—no claim shall be joined
except:
a) where the personal claims arise with reference with the estate he represents or
b) where he was entitled to or liable for those claims jointly with the deceased
whom he represents.
JOINDER OF CAUSES OF ACTION (Order 2, R. 3, 6)

 This is allowed, subject to the provisions of the Code.

 1 Plaintiff, 1 Defendant and Several Causes of Action
 Where there is only 1 plaintiff and 1 defendant—the plaintiff is at liberty to
unite, in the same suit, several causes of action.
 But, if it appears to the Court that the Joinder of causes may embarrass and
delay the trial, the court may order separate trials.
 Joinder of Plaintiff and Causes of Action
 Where there are 2 or more plaintiffs and several causes of action, the plaintiffs
may unite such causes of action in one suit against the same defendant, if they
all are jointly interested. (Must be in compliance to Order 1, R.1)
 Where there are 2 or more plaintiffs and 2 or more causes of action, they may
be joined in one suit only if the following 2 conditions are fulfilled:
i. The causes of action must have arisen from the same act or transaction.
ii. Common question of law or fact must have been involved.
 Joinder of Defendants and Causes of Action
  Where there is 1 plaintiff and 2 or more defendants and several causes of
action, the plaintiff may unite in the same suit several causes of action against
those defendants, if the defendants are jointly interested in the causes of
action.
 This provision must also be read subject to Order 1, R. 3.
 2 or more defendants can be joined in one suit if following conditions are met:
i. The relief claim must have been based on the same act or transaction.
ii. Common question of law and fact must have been involved.
 Joinder of Plaintiffs, Defendants and Causes of Actions
 Where there are 2 or more plaintiffs, 2 or more defendants and several causes
of action—the plaintiffs may unite the causes of action against the defendants
in the same suit only when all the plaintiffs are jointly interested in the causes
of action and the defendants are also jointly interested in the causes of action.
OBJECTION AS TO MISJOINDER OF CAUSES OF ACTION (Rule 7)
All objections as to misjoinder of causes of action should be taken at the earliest, otherwise
they will be deemed to have been waived off.
INSTITUTION OF SUIT: ORDER 4
 Sec. 26 and Order 4 provide for Institution of suit.
 Order 4, Rule 1: Suit to be commenced by Plaint—a private memorial tendered to a
Court in which a person sets forth his cause of action.
PRESENTATION OF PLAINT

 Every suit must be instituted by presentation of a plaint in duplication or such other

manner as Code prescribes by the Plaintiff or his advocate or by any person duly
authorized by him.
 Plaint must be presented to the Court or such officer in working day, during office
hours.
 Judge may accept a plaint at his residence.
 Thereafter, the particulars of a suit will be entered by the Court in a book kept for the
self-purpose (Register of Civil Suits).
 After the presentation, the plaintiff shall be scrutinized by the stamp reporter.
 If there are defects, the plaintiff or his advocate will remove them. Thereafter, the suit
will be numbered.
REGISTER OF SUITS

 Particulars of every suit will be entered in the register of civil suits after the Plaint is
presented.
 Pleadings (Order 6)
INTRODUCTION

 Order 6 deals with Pleadings in General.

 Rule 1: Defines Pleadings
 Rule 2: Fundamental Principles of Pleadings
 Rule 3-13: Necessary Particulars
 Rule 14-15: Signing and Verification
 Rule 16: Strike our Unnecessary Pleadings
 Rule 17-18: Contain provisions related to amendment of Pleadings.
RULE 1: DEFINITION

 Pleading is defined as Plaint or Written Statement. Pleadings are statements in

writings, drawn up and filed by each party to a case, stating what his contentions will
be at the trial and giving all such details as his opponents need to know in order to
prepare his case in answer.
 Plaintiff’s pleadings—Plaint; Defendant’s pleading—Written Statement.
 If written statement of defendant contains a set-off or counter-claim, plaintiff may file
his written statement thereto.
 Object
 The whole object of pleadings is to bring parties to definite issues and to
diminish expense and delay and to prevent surprise at hearing.
 A party is entitled to know the case of his opponents so that he can meet it.
 The sole object of the pleading is to ascertain the real disputes between the
parties.
RULE 2: BASIC RULES OF PLEADINGS

 Every pleading shall contain:

 Facts, and not law;
 Facts stated should be material facts;
 Pleading should not state the evidence;
 The facts should be stated in a concise form.
Facts and Not Law
 The 1st principle of Pleading is that they should state only facts and not the law.
 The law of pleading may be summarized in 4 words: Plead facts, not law.
 A mixed question of facts and law should be specifically pleaded.
Material Facts
 The 2nd principle of pleading is that they should contain a statement of material facts
only.
 Material facts hasn’t been defined in Code. In simple words it means all facts upon
which the plaintiff’s cause of action or the defendant’s defense depends.
 Material facts are primary and basic facts which must be pleaded by the party in
support of the case set up by it.
 Failure to state material facts will dismiss the suit.
  All material facts must appear in the pleadings and the necessary particulars must be
there so as to enable the opposite party to know the case that he is required to meet
and to put on his guard.
 Case:
 Udhav Singh v. Madhav Rao: All the primary facts which must be proved at
the trial by a party to establish the existence of a cause of action or his defense
are material facts.
 Virendra Nath v. Satpal Singh: Particulars ensure conduct of fair trial and
wouldn’t take the opposite party by surprise.
Facts and Not Evidence
 Facta Probanda—material facts which are required to be proved;
Facts Probantia—The means by which the material facts are to be proved.
 The pleadings should contain only facta probanda and not facta probantia.
 Virendra Nath v. Satpal Singh: There is a distinction between the 2. Material facts
on which the party relies are called facta probanda and they must be stated in the
pleadings. But the facts by means of which the facta probanda are to be proved and
which are in nature of particulars and evidence need not be set out in the pleadings.
 They are not facts in issues, but only relevant facts which are required to be proved.
Concise Form
 It should be drafted in sufficient brevity and precision.
 Pleadings must be precise, specific and un-ambiguous.
 Every pleading should be divided into paragraphs, sub-paragraphs. Each allegation
should be contained in a separate paragraph.
 Dates, totals and numbers must be mentioned in figures as well as in words.
 Appendix A: Format: Facts should be pleaded with certainty, should be in a summary
form, immaterial averments and unnecessary details must be omitted.
OTHER RULES OF PLEADING (Rule 4-18)

 Wherever:
i. Misrepresentation
ii. Fraud
iii. Breach of Trust
iv. Willful Fault
v. Undue Influence
Are pleaded in pleadings, particulars with dates and items should be stated.
 Bishundeo Narayan v. Seogeni Rai: General allegations are insufficient, so they
should be specifically mentioned with certainty and particularity.
 Particulars stated in the pleadings should be sufficient and specific. It should give
adequate notice to the other side. (Rule 2)
 The performance of a condition precedent need not be pleaded since it is implied in
the pleadings. Non-performance of a condition precedent however must be
specifically and expressly pleaded.
  Departure from pleadings isn’t permissible. Except by the way of amendment, no
party can raise any ground of claim or contain any allegation of fact inconsistent with
his previous pleadings.
 A bare denial of contract by the opposite party will be construed only as a denial of
factum of a contract and not the legality, validity or enforceability of such contract.
 Documents need not be set out at length unless the words therein are material. (Rule
9)
 Malice, fraudulent intention, knowledge, other condition of mind if material, may be
alleged in the pleading only as the fact without setting out the circumstances from
which it is to be inferred. (Rule 10)
 Giving notice to any person is necessary or a condition precedent, pleadings should be
only stated regarding giving such notice.
 To save the time of Court, implied contracts, relation between the persons-may be
alleged as a fact and the series of letters, conversations, circumstances from which
they are to be inferred should be pleaded generally. (Rule 12).
 Presumption and Burden of Proof—not pleadings (Rule 13).
 Every Pleading should be signed by the party or his pleader (Rule 14)
 Address of both parties.
 Pleading should be verified—an affidavit by party or one of the parties or by a person
acquainted with the facts of the case. (Rule 15)
STRIKING OUT (Order 6, Rule 16)
Sathi Vijaya Kumar v. Tota Singh
 It cannot be overlooked that normally a Court cannot direct parties as to how they
should prepare their pleadings. If the parties haven’t offended the rules of pleadings
by making averments or raising arguable issues, the Court would not order striking
out pleadings.
 The power to strike out pleading is extraordinary in nature and must be exercised by
the Court with extreme care and caution.
i. Where such pleading is unnecessary, scandalous, vexatious, frivolous
ii. Where such pleading tends to prejudice or embarrass or delay fair trial of the
suit
iii. Where such pleading is otherwise an abuse of the process of the court.
AMENDMENT OF PLEADINGS (Rules 17-18)

General
 Material facts and necessary particulars must be stated in the pleadings and the
decision cannot be based on the ground outside the pleading.
 But, many times, it is necessary to amend the pleadings before or during the trial of
the case—when fresh information has come to hand.
 Interrogatories have been fully answered.
 Documents unknown has been discovered in which it is advisable to amend the
pleading before it is too late.
Discretion of Court: Rule 17
  Court may, at any stage of the proceedings, allow either party to alter or amend his
pleadings in such a manner and on such terms as may be just and shall be made as
may be necessary for the purpose of determining the real question in controversy
between the parties.
Provided: No application for amendment shall be allowed after the trial has
commenced, unless the Court comes to the conclusion that despite of due diligence
the party couldn’t have raised the matter before the commencement of trial.
Object:
 The Court should try the merits of the cases and should consequently allow all the
amendments that may be necessary for determining the real question in controversy
between the parties.
Provided: It doesn’t cause injustice or prejudice to the other side.
 Rule 17 of Order 6 confers wide discretion on a Court to allow either party to alter or
amend his pleading at any stage of the proceedings on such terms as it deems fit.
 Such discretion, however, must be exercised judicially and with well-established
principles of law.
Considerations
 To decide as to whether or not an application for amendment should be allowed, the
following considerations are relevant and should always be kept in mind:
 Whether the amendment is necessary for proper and effective adjudication?
 Whether it completely and fundamentally changes the nature and character of
the stand taken by the party?
 Whether the proposed amendment is going to affect any rights vested in the
other party?
 Whether the party concerned has been able to offer a reasonable explanation
as to why the application for the amendment couldn’t be made before the trial
of the Court?
Leave to Amend when Granted
 The rule confers a very wide discretion on Courts in the matter of amendment of
pleadings.
 Amendment will be granted so as to enable the real questions in issue between the
parties to be raised in pleadings, where the Amendment will occasion no injury to the
opposite party and can be sufficiently compensated for by cost.
 Kisan Dash v. Rachhappa Vithoba: All amendments ought to be allowed which
satisfy 2 conditions:
 Necessary
 Not working injustice to other sides
 st
The 1 condition which must be satisfied before the amendment can be allowed is
whether such amendment is necessary for the determination of the real question in
controversy. If that condition isn’t satisfied the amendment should not be allowed.
This is the basic test which governs court with the powers to amend the pleading and
no amendment is allowed when it doesn’t satisfy this principle.
 Examples where Amendments are allowed
 i. Parties in the plaint are wrongly described
ii. Some properties are omitted
iii. Mistake in the statement of the cause of action
iv. Bona fide omission as to averments
v. Suit is brought under a wrong act etc.
Leave to Amend when Refused
 Leave to amend will be refused where the amendment isn’t necessary for the purpose
of determining the real questions in controversy between the parties.
 The Court’s primary duty is to decide whether such amendment is necessary to decide
the real dispute between the parties. If it is so, the amendment will be allowed.
 Leave to amend will be refused if it introduces a totally different view and
inconsistent case or changes the fundamental character of the suit.
 Leave to amend will be refused where the effect of the proposed amendment is to take
away from the other side, a legal right accrued in his favor.
 As a general rule, every amendment should be allowed if it can be made
without prejudice or injustice to the other side. The amendment may work
injustice to the opposite party where it takes away from a party a right
accrued to him by lapse of time.
 Leave to amend can be refused where the application for amendment is not made in
good faith.
 As a general rule, leave to amend ought not to be granted if the applicant had
acted mala fide.
 Want of bona fide intention may be inferred from the circumstances of the
case.
 When there is no substantial ground for the case proposed to be set up by the
amendment and the object is to defeat or delay the plaintiff’s claim—the
amendment will not be granted as for not being bona fide.
Who May Apply?
 Plaintiff or defendant—in his pleading, i.e., Plaint or Written Statement.
Who may Grant?
 Ordinarily, the trial Court can grant an application for amendment.
 Appellate Court, revisional Court, and even the Supreme Court can grant for
amendment as well.
Notice to Opposite Party
 Where an application for amendment is made by a party to the suit, then opportunity
should be given to the other side to file an object against such prayer.
 Granting amendment without hearing the opposite party is not illegal, but will be
invalid.
 Where the plaint is amended, notice of amended plaint should be served on the
defendant.
Recording of Reasons
  While deciding an application for amendment of pleading, the Court must apply its
mind and should record the reasons for allowing or not allowing the amendment.
At any Stage of Proceeding
 Leave to amend may be granted before or at or after the trial or 1st or 2nd appeal or in
revision or in the SC.
Amendment Act, 2002
 The proviso to Rule 17 restricts and curtails the power of the Court and declares that
the Court should not allow such amendments after the commencement of the trial
unless it comes to the conclusion that inside of due diligence, the matter couldn’t have
been raised by the party before the commence of the trial.
Doctrine of Relation Back
 Normally the amendment relates back to the pleading.
 In appropriate cases, the Court may order that the amendment would take effect from
the date when the application was made or the amendment was allowed and not from
the date when the plaint or written statement was presented.
 Date of Amendment—relates back to—date of Pleading (Doctrine of Relation Back)
 Special Cases—date of amendment—when amendment was allowed
Note
 An order allowing or disallowing an application for amendment is neither a decree
nor an order. So, NO APPEAL LIES AGAINST SUCH AN ORDER—it can be
rectified/changed by revisional jurisdiction of HC.
Failure to Amend (Rule 18)
 If a party, who has obtained an order for leave to amend, doesn’t amend accordingly
within the time specified for that purpose, or if no time specified, then within 14 days
from the date of order—he shall not be permitted to amend after expiry of such time,
unless such time is extended by that Court.
 PLAINT AND WRITTEN STATEMENT
PLAINT (Order 7)
 Plaint has not been defined in the Code. However, it can b said to be a statement of
claim, a document by presentation of which a suit is instituted.
 It is the pleading of the Plaintiff.
Particulars of a Plaint (Rules 1-8)
a) Name of the Court
b) Name, description and place of residence of the Plaintiff
c) Name, description and place of residence of the Defendant
d) Where the plaintiff or defendant is a minor or person of unsound mind—a statement
to that effect
e) Facts constituting cause of action and when it arose
f) Fact showing that Court has jurisdiction
g) A statement of the value of the subject-matter of the suit for the purpose of
jurisdiction and court fees
h) The relief claimed by the plaintiff, simply or in the alternative
i) When plaintiff files a suit in representative capacity—facts showing that plaintiff has
an actual existing interest in the subject-matter and he has taken steps that may be
necessary to enable him to file such a suit
j) When plaintiff has allowed a set-off or relinquished a portion of his claim, the amount
so allowed or relinquished
k) If suit is for recovery of money—the precise amount so claimed
l) If suit is for accounts or mesne profits—the approximate amount
m) If subject-matter is immovable property—a description of the property that is
sufficient to identify it
n) Interests and liability of the defendant in the subject-matter
o) If suit is time-barred—the ground upon which exemption from law of limitation is
claimed
Admission of Plaint (Rule 9)
Filing of copies of the plaint by the plaintiff and also requires him to pay requisite fees for the
service of the summons on the defendant within 7 days.
Return of the Plaint (Rule 10)
 Rule 10 to 10B
 Where at any stage of the suit, the Court finds that it has no jurisdiction, either
territorial/pecuniary/subject-matter, it will return the plaint to be presented in the
proper court in which the suit ought to have been filed.
 Rule 10A

Page 120-136: Missed
Effect of Set-Off
 When a defendant pleads a set-off, there are 2 suits:
i. One by the plaintiff against the defendant; and
ii. Another by the defendant against the plaintiff.
And they are tried together and a separate Suit number is not given.
Equitable Set-Off
 Rule 6 deals with Legal Set-off only which is always in respect of an ascertained sum
of money.
 There may be cases in which a defendant may be allowed a set-off in respect of an
unascertained sum of money.
 Equity courts in England talk about ‘Equitable Set-Off’, where a defendant can set-off
even an unascertained sum of money. [Provided—The cross demands arise out of
one and the same transaction].
 APPEARANCE AND NON-APPEARANCE OF
PARTIES (Order 9)
 General Rule: No proceeding in a Court of law should be conducted to the detriment
of any party in his absence.
 It also provides a remedy for setting aside an order for dismissal of the suit, as also the
setting aside of an ex-parte decree passed against the defendant.
APPEARANCE OF PARTIES
Rule 1
 In Person or
 by their Pleader, on the day fixed in their summons for the defendant to appear.
Rule 12
 Where a plaintiff or a defendant who has been ordered to appear in person doesn’t
appear in person or shows sufficient cause for non-apperance, the Court in case of:
i. Plaintiff—dismissed
ii. Defendant—Ex Parte
Rule 3: Neither party appears
 Court may dismiss it
 Dismissal doesn’t bar a fresh suit
 Plaintiff may also apply for an order to set aside such dismissal.
 If there was sufficient cause, the Court shall
Rule 10: Where only Plaintiff appears, defendant doesn’t
 Plaintiff has to prove service of summons on the defendant.
 If the service of summons is proved, Court may proceed Ex Parte against the
defendant and may pass a decree in favour of the plaintiff.
 When there are 2 or more plaintiffs, and one or more of them appear and others don’t
appear, the Court may permit the suit to proceed as if all the Plaintiffs had appeared.
Rule 7 to 11: Where only defendant appears
 Defendant doesn’t admit the plaintiff’s claim—dismissal
 Defendant admits the plaintiff’s claim—decree against the defendant.
Effect of setting aside an Ex Parte Decree
 The
Appeal
 An appeal lies against an order rejecting an application to set aside Ex Parte decree.

Revision
  It is a case decided, therefore, is revisable.
Review
 Aggrieved party can also file an application for review.
Suit
 A suit to set aside an ex parte decree—not maintainable.
 On the ground of fraud—maintainable.
Sec. 27-29: SUMMONS (Order 5)
 Meaning: When a plaintiff files a suit, the defendant has to be informed that the suit
has been filed against him and he is required to appear before the Court to defend it.
 The intimation which is sent to the defendant by the Court is, technically, known as
Summons.
 Summons—A document issued from a Court of Justice, calling upon the person to
whom it is directed to attend before a Judge or Officer of the Court for a certain
purpose.
 Object—The defendant must be given an opportunity for his defense (Audi Alteram
Partem: part of Natural Justice)
 If summons is not served, decree passed will be null and void.
Essentials of Summons (Rule 1-2)
i. Signed by Presiding Officer of Court;
ii. Bearing Seal of the Court;
iii. In Duplicate;
iv. In Writing;
v. Must be accompanied by a Plaint;
Notes
 Format of Summons—Appendix B (Schedule I)
 Order 5—Summons for defendants.
 Order 16—Summons for Witnesses.
 No need to serve the summons when defendant is present at the time of presentation
of a Plaint.
Rule 3
 In person
 By a Pleader
 Instructed and able to answer all material questions