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CPC - CPC Notes

BALLB (Guru Gobind Singh Indraprastha University)

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Introduction
 The Civil Procedure Code, 1908 (CPC) provides for the procedure that
must be followed in case a person is required and willing to file a civil
suit.
 While the institution of a civil suit usually happens with the filing of
plaint it finally concludes with passing of a judgment followed by a
decree.
 Section 2 of CPC gives the definition of decree, order and judgment.
WHAT IS A JUDGEMENT?
A Judgement is defined under Section 2(9) of the CPC as “the statement given
by the judge on the grounds of a decree or order.” In simpler terms, a judgement
is the judge’s reasoning behind the court’s final decision in a civil suit. It is the
final expression of the court’s opinion on the matter after hearing the arguments,
examining the evidence and considering the applicable laws.
A judgement is delivered after the court has heard both parties and it forms the
basis for issuing a decree or order. A judgement must include a concise
statement of the facts of the case, the points for determination, the decisions on
those points and the reasoning behind those decisions.
Essentials of a Judgement
The key elements that a judgement must include, as per Order XX Rule 4 of the
CPC, are as follows:
 Judgements of a Court of Small Causes are satisfactory if they contain the
points for determination and the decision thereon.
 Judgments of other Courts shall contain:
 Summary of the pleadings which is a concise statement of the case;
 Issues which are the points for determination;
 Findings on each issue and the decision thereon;
 Ratio decidendi (reasons for such a decision); and
 The remedy, which is the relief granted.

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Pronouncement of Judgement
Once the court concludes the hearing, it is required to pronounce the judgement
in open court, either immediately or on a later date fixed by the court, as per
Order XX Rule 1. In cases where the judgement cannot be pronounced
immediately, the court should attempt to pronounce it within 30 days, with a
maximum extension of 60 days under exceptional circumstances.
A judgement must be signed and dated by the judge and, once signed, it cannot
be altered except for clerical or arithmetical mistakes, as stated under Section
152 of the CPC.
Legal Precedent on Judgement
In the case of Gajraj Singh v. Deohu (1951), the court held that a judgement
must be intelligible and demonstrate that the judge has applied his mind to the
facts and issues of the case. A judgement that does not reflect the reasoning
behind the decision is not legally valid.

WHAT IS A DECREE?
A Decree is defined under Section 2(2) of the CPC as the formal expression of
an adjudication by a civil court, which conclusively determines the rights of the
parties in relation to all or any of the matters in controversy in a suit. Simply
put, a decree is the official declaration of the court’s decision regarding the
rights and obligations of the parties involved in a lawsuit.
A decree is issued after the judgement has been delivered and it can be either
preliminary or final. A decree must be formally drawn up and must align with
the judgement passed by the court.
Contents of a Decree
A decree always follows the judgement, coincide with it and contains:

 The suit’s number – Every suit has a particular number and it should be
mentioned in the decree.

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 The names, description and registered addresses of the parties – Every

decree shall have the names of all the parties of that particular suit, the
proper description of the parties of the suit, and the registered addresses
of all the parties of the suit.
 The particulars of the parties claims or defence – Every decree shall
contain the details of the claims and the defences the parties are claiming
as an outcome of the said suit.
 The relief or the remedy granted to the aggrieved party – The decree
should in particular mention about the relief granted to the particular
party as a remedy and not a reward.
 The total amount of cost incurred in the suit-
by whom; or
out of what property; and
in what portions are they paid or are to be paid.
 The judgement’s date of pronouncement or delivery date of the
judgement – The decree should mention the date on which the judgement
was delivered followed by the decree.
 The judge’s signature on the decree – The judge’s signature is an essential
and indispensable element of any decree. The signature of the judge
delivering the judgement is an essential requisite.
Kinds of Decrees
According to Section 2(2) of the Code of Civil Procedure,1908 decrees are
divided into three categories:
i. Preliminary Decree
In general sense, the word preliminary means preparation for the main matter,
initial, introductory, preparatory. In a legal sense, a preliminary decree is a
decree where further proceedings have to take place before the suit can be
completely disposed off. It decides the rights of the parties in respect to all or
any of the matters of discussion but it does not completely dispose of the suit. In

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such a decree the rights and liabilities of the parties are stated leaving the actual
result or decision to be worked out in future proceedings. A preliminary decree
is passed in those cases where the proceedings are to be carried out in two
different stages. The first stage is when the rights of the parties are adjudicated
and the second stage is when those rights are implemented or executed.
ii. Final Decree
In general sense, the word ‘final’ means last, ultimate, conclusive or decisive. In
legal sense, a final decree is a decree which completely disposes of the suit and
settles all the questions in discussion between the parties and nothing is left
further for deciding thereafter. It is only said to be final when such adjudication
completely disposes of the suit.
iii. Partly preliminary and partly final Decree
A decree is said to be partly preliminary and partly final when the court decides
two questions by the same decree. For instance, if the court passes a decree in
favour of one party along with a direction of inquiry for the other party, the
former part of the decree is final while the latter part is a preliminary decree for
which further proceedings have to take place. For example, in a suit of
possession of a property with company ‘C’, if the court passes a decree of
possession of the property in favour of the plaintiff and directs an enquiry into
the company ‘C’, then the former part of the decree is final decree while the
latter part is the preliminary decree.
iv. Deemed Decree
A decree shall be deemed to include the rejection of a plaint and any question
within Section 144 of Code of Civil Procedure,1908 but shall not include:
 any such sentence(adjudication) from which it appears that an appeal lies
as an appeal from an order, or
 any such order of discharge(dismissal) of default.
Legal Significance of a Decree

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A decree has legally binding force and can be executed through enforcement
mechanisms if the party against whom it is passed fails to comply. A decree may
be appealed and an appellate court may confirm, modify or overturn the decree.
The execution of a decree involves taking steps to enforce the rights determined
by the court.

WHAT IS AN ORDER?
An Order is defined under Section 2(14) of the CPC as the formal expression of
any decision of a civil court which is not a decree. Orders are issued by courts
in response to applications made by parties during the course of a suit or
proceeding. Unlike decrees, which conclusively determine the substantive rights
of parties, orders typically deal with procedural matters or interlocutory
decisions.
Essentials of an Order
The key elements of an order are as follows:
 Formal expression: An order must be formally expressed in writing by the
court.
 Non-decree: An order must be a decision that does not qualify as a
decree.
 Pronounced by a civil court: The order must be issued by a civil court
during legal proceedings.
Types of Orders
Orders can be broadly categorised into two types:
1. Appealable Orders: Certain orders are appealable and parties can
challenge them before a higher court. Section 104 and Order 43 Rule 1 of
the CPC enumerate the orders that are appealable.
2. Non-Appealable Orders: Orders that cannot be appealed unless
specifically provided for in the CPC. These are generally interlocutory
orders that do not finally determine the rights of the parties.

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3. Final and Interlocutory Orders

Final Orders: A final order conclusively determines the rights of the parties on
a particular issue or stage of the proceedings. It settles the matter completely
with no further issues left for adjudication.
Interlocutory Orders: These are temporary orders passed by the court during
the pendency of a suit. They do not determine the final outcome but are issued
to address procedural matters or provide interim relief to the parties. For
example, an order granting or refusing an injunction is an interlocutory order.

Order and Decree

S.
Decree Order
No.

The decree is passed only in a suit which An order can be passed in a suit instituted
1. is commenced by the presentation of the on plaint as well as from a proceeding
plaint. commenced on a petition application.

Decree determines the right of parties in An order may or may not finally and
2.
dispute conclusively. conclusively determine such rights.

3. A decree can be preliminary or final. An order cannot be preliminary.

In a suit, there can be only one decree

A number of orders can be passed in a suit
4. except for the suits where a preliminary
or proceeding.
and final decree is passed.

Every decree is appealable unless Only the orders specified in this code are
5.
expressly provided. appealable.

The second appeal lies to the High Court There is no provision of the second appeal
6.
against the first appeal of a decree. in case of appealable orders,

Judgement and Decree

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[Link]. Judgement Decree

Judgement is the statement of the judge For decree, a statement of the ground is
1.
on the ground of a decree or an order. not required to be given by the judge.

The judgement does not require to have

2. A decree must be a formal expression.
a formal expression.

The relief granted is required to be stated A decree determines the rights in dispute
3
preciously in the Judgement. between the parties.

A judgement is passed in a stage prior to A decree is passed after issuing the

4.
passing a decree. judgement.

Judgement is pronounced in civil as well A decree can be passed only in a civil

5.
as criminal matters. suit.

MESNE PROFITS
Introduction
Mesne profits are nothing more than a fee that a person in unlawful possession
of another’s property must pay to the owner of the property for such wrongful
occupation. Section 2(12) of the Civil Procedure Code, 1908 (CPC) defines
mesne profit.
Mesne Profit
 As per Section 2(12) of CPC, mesne profits of property mean 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, but shall not include
profits due to improvements made by the person in wrongful
possession.
 It is a compensation paid to the real owner.
Objectives

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 Every person has a right to possess his property. And when he is deprived
of such property by another person, he is not only entitled to restoration
of possession of his property, but also damages for wrongful possession
from that person.
 The object of awarding a decree for mesne profits is to compensate the
person who has been kept out of possession and deprived of enjoyment
of his property.
Principles
 The following principles would guide a Court in determining the amount
of mesne profits.
o No profit by a person in wrongful possession.
o Restoration of status before dispossession of decree holder.
o Use to which a decree holder would have put the property if he
himself was in possession.
Against Whom Mesne Profits can be Claimed
 Wrongful possession of the defendant is the essence of a claim for mesne
profits and the very foundation of the defendant’s liability, therefore.
 A person in wrongful possession and enjoyment of immovable property
is liable for mesne profits.
 Mesne profits can be claimed with regard to immovable property only.
 Where a plaintiff is dispossessed by several persons, every one of them
would be liable to pay mesne profits to the plaintiff.
Assessment of Mesne Profits
 Mesne profits being in the nature of damages, no invariable rule
governing their award and assessment in every case can be laid down and
the Court may mould it according to the case.
 In assessing the mesne profits, usually the Court will take into account
what the defendant has gained by his wrongful possession of the
property.

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 The test to ascertain mesne profits is not what the plaintiff has lost by
being out of possession but what the defendant gained or might
reasonably and with ordinary prudence would have gained by such
wrongful possession.
 While awarding mesne profits, the Court may allow deductions to be
made from the gross profits of the defendant in wrongful possession of
the property.
Interest and Deductions of Mesne Profits In CPC
Section 2 Clause 12 of the Civil Procedure Code specifies that mesne profits
must include any interest received during the wrongful possession. The court
determines the rate of interest, which should not exceed 6% per annum, based
on all relevant information.
When computing mesne profits, deductions are made from the gross profit of
the defendant in wrongful possession. These deductions include costs of
cultivation and reaping crops, government revenue and charges for collecting
rent.
Burden of Proof
In a suit for mesne profits in CPC, the burden of proof lies with the claimant.
The plaintiff must prove their lawful ownership of the property and that they are
being deprived of their right to enjoy it due to the defendant’s wrongful
possession.
The plaintiff must also prove the profits they might have received with ordinary
diligence.
Power of Court in Suit Relating to Mesne Profits
Under Order 20 Rule 12, when there is a suit for the recovery of possession, the
court has the discretion to pass several types of decrees:
 For possession of immovable property.
 For collection of mesne profits or directing an inquiry into mesne profits.

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A preliminary decree directing an inquiry into mesne profits acquired before the
suit was instituted.
CASE LAW
 In the case of Phiraya Lal Alias Piara Lal v. Jia Rani and Anr. (1973),
the Delhi High Court interpreted the meaning of the term “mesne profit”
by observing that when a party claims damages to recover the loss
resulted from wrongful occupation of immovable property by a trespasser
that originally belonged to the party then such damages will be known as
mesne profits.
 The Calcutta High Court, in Casyab Pvt. Ltd. v. Central Bank of
India, emphasised that assessing mesne profits may involve some
guesswork based on available materials and evidence. There is no
uniform standard for assessment, but a comparative analysis of factors
like the nature, location, accessibility, age and condition of the property
can be relevant.

FOREIGN COURT AND FOREIGN JUDGEMENT

What is Foreign Judgement under CPC?
The term “foreign judgment” is defined in Section 2(6) of the Code of Civil
Procedure as a judgment issued by a court outside India.
Section 13 of the Code outlines the criteria for recognising a foreign judgment,
which is a prerequisite for any enforcement proceedings. Unless a foreign
judgment meets the conclusiveness test outlined in Section 13, it cannot be
enforced.
What is a Foreign Court?
A “foreign court,” as defined in Section 2(5) of the Code of Civil Procedure,
refers to a court located outside India that is not established or continued by the
central government. Sections 13, 14 and 44 of the Criminal Procedure Code
govern foreign judgments.

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Section 13 incorporates principles of private international law, stipulating that a

court will not enforce a foreign judgment if it is not from a competent court.
These rules are substantive and procedural in nature.
Enforcement of Foreign Judgements Meaning
Enforcement of foreign judgments is the process of recognising and giving
effect to a judgment or order issued by a court in one country in another
country. This process allows the successful party in a lawsuit to seek the
enforcement of the judgment in a different jurisdiction where the defendant’s
assets are located or where the judgment debtor resides.
Foreign Judgement When Not Conclusive
 Section 13 of CPC states that a foreign Judgement shall be conclusive as
to any matter thereby directly adjudicated upon between the same
parties or between parties under whom they or any of them claim
litigating under the same title except—
o (a) where it has not been pronounced by a Court of competent
jurisdiction;
o (b) where it has not been given on the merits of the case;
o (c) where it appears on the face of the proceedings to be founded
on an incorrect view of international law or a refusal to recognize
the law of India in cases in which such law is applicable;
o (d) where the proceedings in which the Judgement was obtained
are opposed to natural justice;
o (e) where it has been obtained by fraud;
o (f) where it sustains a claim founded on a breach of any law in
force in India.
 This section provides that a foreign Judgement may operate as res
judicata except in the aforementioned six clauses.
(a) Foreign Judgement Not by a Competent Court

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 A Judgement of a foreign court to be conclusive between the parties must

be a Judgement pronounced by a court of competent jurisdiction.
o A competent court implies a court having jurisdiction over the
parties and the subject matter.
 The court of a foreign country has jurisdiction in the following cases:
o Where at the time of the commencement of the action
the defendant was resident or present in such country, so as to have
the benefit and be under the protection of laws.
o Where the defendant is at the time of the Judgement in
action, subject or citizen of such country.
o Where the party objecting to the jurisdiction of the courts of such
country has by his own conduct, submitted to such jurisdiction by
 Appearing as plaintiff in the action or counterclaiming, or
 Voluntarily appearing as defendant in such action, or
 Having expressly or impliedly contracted to submit to the
jurisdiction of such courts.
 In the case of Bharat Nidhi Limited v. Megh Raj Mahajan (1964), it
was held that a foreign Judgement has to be passed only by a foreign
court of competent jurisdiction to operate as res judicata in the Indian
courts.
(b) Foreign Judgement Not on Merits
 In order to be conclusive, the foreign Judgement must be on the
merits i.e., which involves the application of the mind of the court to the
truth or falsity of the case.
 The Actual test for deciding whether the Judgement has been given on
merits or not is to see whether it was merely passed as a matter of course,
or by way of penalty of any conduct of the defendant or is based upon a
consideration of the truth or falsity of the plaintiff's claim.
(c) Foreign Judgement Against Indian or International Law

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 A Judgement based upon an incorrect view of international law or

a refusal to recognize law of India where such law is applicable is not
conclusive.
 The mistake must be apparent on the face of the proceeding.
(d) Foreign Judgement Opposed to Natural Justice
 The Judgement must observe the minimum requirements of natural
justice, that is it must give reasonable notice to the parties to the dispute
and afford each party adequate opportunity of presenting his case.
o It may be noted that the mere fact that the foreign court did not
follow the procedure of Indian courts will not invalidate a foreign
Judgement on the ground of proceedings being opposed to natural
justice.
 In the case of Sankaran v. Lakshmi (1974), the Supreme Court held that
the expression natural justice relates to the irregularities in procedure
rather than to the merits of the case.
(e) Foreign Judgement Obtained by Fraud
 It is a well settled principle of Private International Law that if foreign
Judgements are obtained by fraud, it will not operate as res judicata.
o Fraud in any case, bearing on jurisdictional facts, vitiates all
judicial acts.
o The fraud may be either fraud on the party invalidating a foreign
Judgement in whose favor the Judgement is given or fraud on the
court pronouncing the Judgement.
 In the case of Satya v. Teja Singh (1975), the Supreme Court held that
the plaintiff had misled the foreign court as to its having jurisdiction over
the matter, although it could not have had the jurisdiction, the Judgement
and decree was obtained by fraud and hence inconclusive.
(f) Foreign Judgement founded on Breach of Indian Law

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 Section 13(f) does not require that the procedure of the foreign court
should be identical with or similar to the procedure of the courts in India.
 However, when a foreign Judgement is founded on a breach of any law in
force in India, it would not be enforced in India.
Presumption as to Foreign Judgements
Section 14 states that the Court shall presume upon the 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; but such presumption may be displaced by
proving want of jurisdiction.

AFFIDAVITS
Introduction
Affidavit means a sworn statement in writing made especially under oath or on
affirmation before an authorized officer or Magistrate. Though the expression
affidavit has not been defined in the Civil Procedure Code, 1908 (CPC).
Affidavit
 It is considered as a declaration of facts, made in writing sworn before a
person having authority to administer oath.
 Every affidavit should be drawn up in the first person and should
contain only facts and not inferences.
 Order XIX of CPC deals with the provision relating to affidavits.
Essentials of Affidavit
 The essential elements of an affidavit are:
o It must be a declaration made by a person.
o It must relate to facts.
o It must be in writing.
o It must be in the first person.

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o Must be sworn or affirmed before a Magistrate or any other

authorized officer.
Contents of Affidavit
 An affidavit should be confined to such facts as the deponent is able to
prove to his personal knowledge.
 Rule 3(1) of Order XIX of CPC states that the affidavits shall be
confined to such facts as the deponent is able of his own knowledge to
prove, except on interlocutory applications, on which statements of his
belief may be admitted; provided that the grounds thereof are stated.
 Rule 3(2) of Order XIX of CPC states that the costs of every affidavit
which shall unnecessarily set forth matters of hearsay or argumentative
matter, or copies of or extracts from documents, shall (unless the Court
otherwise directs) be paid by the party filing the same.
Verification of Affidavit
 An affidavit should be verified.
 The importance of verification is to test the genuineness and
authenticity of the of the averments and allegations made by the
deponent.
Affidavit by State
 Affidavits on behalf of the State should be filed with a sense of
responsibility.
 Contradictory affidavits filed by one and the same officer are unworthy of
the spokesman of the government and shows utter disregard for veracity.
Power to Prove by Affidavits
 Rule 1 of Order XIX of CPC deals with the power to order any point to
be proved by affidavit.
 It states that any Court may at any time for sufficient reason order that
any particular fact or facts may be proved by affidavit, or that the

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affidavit of any witness may be read at the hearing, on such conditions as

the Court thinks reasonable.
 Provided that where it appears to the Court that either party bona fide
desires the production of a witness for cross-examination, and that such
witness can be produced, an order shall not be made authorizing the
evidence of such witness to be given by affidavit.
Evidence on Affidavit
 A Court may order that the any fact may be proved by affidavit.
 If the affidavits are not properly verified and are in conformity with the
rules, they will be rejected by the Court.
 Rule 2 of Order XIX of CPC deals with the power to order attendance of
deponent for cross-examination. It states that-
(1) Upon any application evidence may be given by affidavit, but the Court
may, at the instance of either party, order the attendance for cross-
examination of the deponent.
(2) Such attendance shall be in Court, unless the deponent is exempted from
personal appearance in Court, or the Court otherwise directs.
False Affidavit
 Swearing of false affidavit is an offence of perjury punishable under the
provisions of the Indian Penal Code, 1860 (IPC).
 It is a grave and serious matter, and a lenient view is not warranted.

PLAINT AND WRITTEN STATEMENTS

Introduction
The expression plaint has not been defined in the Code of Civil Procedure,
1908 (CPC). It can be said to be a statement of claim, a document by
presentation of which the suit is instituted. Its object is to state the
grounds upon which the assistance of the court is sought by the plaintiff.
 Order VII of CPC contains the provision in relation to plaint.

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Rules Regarding the Plaint

 Rule 1 of Order IV lays down that a plaint is to be presented in
duplicate to the Court or such officer as may be appointed by the Court.
 Every plaint shall comply with the rules contained in Orders VI and
VII of CPC.
 A suit is instituted when the plaint is presented and not when the suit is
registered.
Particulars to be Contained in a Plaint
 Rule 1 of Order VII deals with the particulars to be contained in a plaint.
It states that -
o The plaint shall contain the following particulars: —
(a) The name of the Court in which the suit is brought.
(b) The name, description and place of residence of the plaintiff.
(c) The name, description and place of residence of the defendant, so far as they
can be ascertained.
(d) Where the plaintiff or the defendant is a minor or a person of unsound mind,
a statement to that effect.
(e) The facts constituting the cause of action and when it arose.
(f) The facts showing that the Court has jurisdiction.
(g) The relief which the plaintiff claims.
(h) Where the plaintiff has allowed a set-off or relinquished a portion of his
claim, the amount so allowed, or relinquished.
(i) A statement of the value of the subject matter of the suit for the purposes of
jurisdiction and of court fees, so far as the case admits.
Relief to be Specifically Stated in a Plaint
 As per Rule 7 of Order VII, every plaint shall state specifically the
relief which the plaintiff claims either simply or in the
alternative, and it shall not be necessary to ask for general or other relief

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which may always be given as the Court may think just to the same
extent as if it had been asked for.
 As per Rule 8 of Order VII, where the plaintiff seeks relief in respect of
several distinct claims or causes of action founded upon separate and
distinct grounds, they shall be stated as far as may be separately and
distinctly.
Procedure on Admitting Plaint
 As per Rule 9 of Order VII, where the Court orders that the summons be
served on the defendants in the manner provided in Rule 9 of Order V, it
will direct the plaintiff to present as many copies of the plaint on plain
paper as there are defendants within seven days from the date of such
order along with requisite fee for service of summons on the defendants.
Return of Plaint
 Rule 10 deals with the return of plaint. It states that -
(1) Subject to the provisions of rule 10A, the plaint shall at any stage of the
suit be returned to be presented to the Court in which the suit should have been
instituted.
Explanation. — For the removal of doubts, it is hereby declared that a Court of
appeal or revision may direct after setting aside the decree passed in a suit, the
return of the plaint under this sub-rule.
(2) Procedure on returning plaint —On returning a plaint, the Judge shall
endorse thereon the date of its presentation and return, the name of the party
presenting it, and a brief statement of the reasons for returning it.
Rejection of Plaint
 Rule 11 deals with the rejection of plaint. It states that -
o The plaint shall be rejected in the following cases: —
(a) where it does not disclose a cause of action.

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(b) where the relief claimed is undervalued, and the plaintiff, on being
required by the Court to correct the valuation within the time to be fixed by the
Court, fails to do so.
(c) where the relief claimed is properly valued, but the plaint is returned upon
paper insufficiently stamped, and the plaintiff, on being required by the Court
to supply the requisite stamp-paper within a time to be fixed by the Court, fails
to do so.
(d) where the suit appears from the statement in the plaint to be barred by any
law.
(e) where it is not filed in duplicate.
(f) where the plaintiff fails to comply with the provisions of rule 9.
Provided that the time fixed by the Court for the correction of the valuation or
supplying of the requisite stamp-paper shall not be extended unless the Court,
for reasons to be recorded, is satisfied that the plaintiff was prevented by any
cause of an exceptional nature from correcting the valuation or supplying the
requisite stamp-paper, as the case may be, within the time fixed by the Court
and that refusal to extend such time would cause grave injustice to the
plaintiff.
Procedure on Rejecting Plaint
 As per Rule 12 of Order VII, where a plaint is rejected, the Judge shall
record an order to that effect with the reasons for such an order.
Case Laws:
 In Mayar H.K. Ltd. v. Owners & Parties, Vessel M.V. Fortune
Express (2006), the Supreme Court held that the grounds for rejection
of plaint specified in Rule 11 of Order VII of CPC are not exhaustive.
 In Sopan Sukhdeo Sable v. Asst. Charity Commr. (2004), the Supreme
Court held that a plaint cannot be rejected in part and retained in part.
It should be rejected as a whole.

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WRITTEN STATEMENT
Introduction
A written statement ordinarily means a reply to the plaint filed by the plaintiff.
It is the pleading of the defendant. Order 8 of the Code of Civil Procedure,
1908 (CPC) contains provisions in relation to written statement.
Written Statement
 Rule 1 of Order 8 deals with written statement. It states that -
The Defendant shall, within thirty days from the date of service of
summons on him, present a written statement of his defence.
Provided that where the defendant fails to file the written statement within the
said period of thirty days, he shall be allowed to file the same on such other
day, as may be specified by the Court, for reasons to be recorded in writing,
but which shall not be later than ninety days from the date of service of
summons.
Provided that where the defendant fails to file the written statement within
the said period of thirty days, he shall be allowed to file the written statement
on such other day, as may be specified by the Court, for reasons to be recorded
in writing and on payment of such costs as the Court deems fit, but which shall
not be later than one hundred twenty days from the date of service of
summons and on expiry of one hundred twenty days from the date of service of
summons, the defendant shall forfeit the right to file the written statement
and the Court shall not allow the written statement to be taken on record.
New Facts to be Specially Pleaded in Written Statement
 As per Rule 2 of Order 8 of CPC, the defendant must raise by his
pleading all matters which show the suit not be maintainable, or that
the transaction is either void or voidable in point of law, and all such
grounds of defence as, if not raised, would be likely to take the opposite
party by surprise, or would raise issues of fact not arising out of the

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plaint, as, for instance, fraud, limitation, release, payment, performance,

or facts showing illegality.
Denial to be Specific in Written Statement
 As per Rule 3 of Order 8 of CPC, it shall not be sufficient for a defendant
in his written statement to deny generally the grounds alleged by the
plaintiff, but the defendant must deal specifically with each allegation
of fact of which he does not admit the truth, except damages.
Evasive Denial in Written Statement
 As per Rule 4 of Order 8, where a defendant denies an allegation of
fact in the plaint, he must not do so evasively, but answer the point of
substance. Thus, if it is alleged that he received a certain sum of money,
it shall not be sufficient to deny that he received that particular amount,
but he must deny that he received that sum or any part thereof, or else set
out how much he received. And if an allegation is made with diverse
circumstances, it shall not be sufficient to deny it along with those
circumstances.
Set-Off to be Given in Written Statement
 As per Rule 6 of Order 8 of CPC, where in a suit for the recovery of
money the defendant claims to set-off against the plaintiff's demand any
ascertained sum of money legally recoverable by him from the plaintiff,
not exceeding the pecuniary limits of the jurisdiction of the Court, and
both parties fill the same character as they fill in the plaintiff's suit,
the defendant may, at the first hearing of the suit, but not afterwards
unless permitted by the Court, presents a written statement
containing the particulars of the debt sought to be set-off.
Counter Claim to be Stated in Written Statement
 As per Rule 6B of Order 8 of CPC, where any defendant seeks to rely
upon any ground as supporting a right of counterclaim, he shall, in his

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written statement, state specifically that he does so by way

of counterclaim.
Failure to Present Written Statement
 As per Rule 10 of Order 8 of CPC where any party from whom a written
statement is required under Rule 1 or Rule 9 fails to present the same
within the time permitted or fixed by the Court, as the case may be,
the Court shall pronounce judgment against him, or make such order
in relation to the suit as it thinks fit and on the pronouncement of such
judgment a decree shall be drawn up.
 Provided further that no Court shall make an order to extend the time
provided under Rule 1 of this Order for filing of the written statement.
Case Law
 In Kailash v. Nankhu (2005), the Supreme Court held that the proviso
to Rule 1 of Order 8 of CPC is directory and permissive and not
mandatory and imperative.
 In Salem Advocate Bar Assn. V. Union of India (2005), the Supreme
Court clarified that under Rule 10 of CPC, the court has wide powers to
‘make such order in relation to the suit as it thinks fit.’ The order
extending the time to file a written statement cannot be made routinely.
The time can be extended only in exceptionally hard cases.

PLAINT WRITTEN STATEMENT

A “Plaint” claim made by the plaintiff is

A “written statement” is a defense that includes
backed by a legal document that specifies the
all relevant information and specifics in
cause of action and other necessary
opposition to the plaint.
information.

The CPC’s Order VIII addresses written

The CPC’s Order VII addresses the plaint.
statements.

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The plaintiff files the plaint, outlining the The defendant files the written statement in
facts and the relief they want to pursue. response to the plaintiff’s allegations.

The plaint usually includes the name of the The written statement usually includes all
court, the residences of the plaintiff and supporting documentation and other arguments
defendant, their address, a declaration of the defendant can raise in order to get the
insanity, the cause of action, the relief sought, plaintiff’s claim admitted or rejected by the
and other information. judge.

Within 30 days of receiving a copy of the

The filing of a plaint is the initial step
plaint, a written statement must be submitted
towards the establishment of a civil lawsuit.
(extended to 90 days)

RES JUDICATA AND RES SUB JUDICE

Introduction
 Res means “subject matter” and judicata means “adjudged” or decided
and together it means “a matter adjudged”.
 Section 11 of Code of Civil Procedure, 1908 (CPC) embodies the
doctrine of Res Judicata or the rule of conclusiveness of a judgment.
 It enacts that once a matter is finally decided by a competent court, no
party can be permitted to reopen it in a subsequent litigation.
 It serves to prevent multiplicity of proceedings and to protect parties from
being vexed twice for the same cause.
Object
 The object of the principle of res judicata can be traced by three judicial
maxims:
o Nemo debet bis vexari pro una et eadem causa: It means no man
should be vexed twice for the same cause.

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o Interest reipublicae ut sit finis litium: This maxim means it is in

the interest of the state that there should be an end to a litigation.
o Res judicata pro veritate occipitur: a judicial decision must be
accepted as correct.
Essential Elements
 Matter in issue must be same: To apply the principle of Res Judicata,
the matter in the subsequent suit must be directly and substantially
same in the former suit.
 Same Parties: The former suit must have been between the same parties,
or between parties under whom they or any of them claim.
 Same Title: The parties must be litigating under the same title in both the
former and subsequent suits.
 Competent Jurisdiction: The court that decided the former suit must
have had jurisdiction to try the subsequent suit or the suit in which the
issue has been raised.
 Heard and Finally Decided: The matter in issue must have been heard
and finally decided by the former court.
Extent and Applicability
 The doctrine of res judicata applies to civil suits, execution proceedings,
taxation matters, industrial adjudication, administrative orders, interim
orders, etc.
 The doctrine of res judicata codified in Section 11 of CPC is not
exhaustive.
Former Suit: Explanation I
 Explanation I to Section 11 of CPC provides that the expression “former
suit” shall denote a suit which has been decided prior to the suit in
question whether 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.

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 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.
Constructive Res Judicata: Explanation IV
 The rule of constructive Res Judicata engrafted in Explanation IV to
Section 11 of the CPC.
 It is aimed at preventing not only the relitigating of issues that were
decided in a previous suit but also those issues that could have been
raised and decided but were not.
 It is opposed to public policies on which the principle of res judicata is
based.
Representative Suit: Explanation VI
 Explanation VI to Section 11 of the CPC states that where bona fide
litigation is initiated in respect of a common private or a public right, the
decision of such litigation would operate as res judicata on all persons
having an interest in that right.
 The following conditions must be satisfied before a decision may operate
as res judicata under explanation VI:
o There must be a right claimed by one or more persons in common
for themselves and others not expressly named in the suit.
o The litigation must have been conducted bonafide and on behalf of
all parties interested.
o If the suit is under Order I Rule 8 of CPC, all conditions laid down
therein must have been strictly complied with.
Exceptions to Res Judicata
 Writ of Habeas Corpus: The principle of Res Judicata does not apply to
the writ of Habeas Corpus.
 Fraud or Collusion: If the original judgment was obtained through fraud
or collusion, it may not be binding in subsequent litigation.

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 Substantial changes in evidence: If some new evidence emerges that

could not have been discovered with due diligence during the prior suit,
then the Court may allow the issue to be re-litigated.
 Incompetent Jurisdiction of Court: If the court that rendered the
original judgment lacked proper jurisdiction, the decision may not have a
binding effect.
Case laws
 State of U.P v. Nawab Hussain (1977):
o The Supreme Court held that 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 controverted and decided.
 Gulam Abbas v. State of U.P (1981)
o The Supreme court held that the doctrine of res judicata codified
under Section 11 of CPC is not exhaustive.

RES SUBJUDICE
Introduction
 Section 10 of the Code of Civil Procedure, 1908 (CPC) deals with
the concept of Res sub judice.
 Res Sub judice is a Latin maxim which means under judgement.
 It implies that where the same subject matter is pending in a Court of law
for adjudication between the same parties, the other court is barred to
entertain it.
Section 10 of CPC
 This section states that no Court shall proceed with the trial of any suit
in which the matter in issue is also directly and substantially in issue in
a previously instituted suit between the same parties, or between parties
under whom they or any of them claim litigating under the same title

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where such suit is pending in the same or any other Court in India have
jurisdiction to grant the relief claimed, or in any Court beyond the limits
of India established or continued by the Central Government and having
like jurisdiction, or before the Supreme Court.
o Explanation - The pendency of a suit in a foreign Court does not
preclude the Courts in India from trying a suit founded on the
same cause of action.
 This Section applies only to suits and not to applications and
complaints. The term suit in this section includes appeal.
 The words ‘matter in issue’ means the entire matter in controversy in
the suit and not merely one of the several issues.
Object of Section 10 of CPC
 The object of Section 10 of CPC is to prevent the courts of concurrent
jurisdiction from simultaneously entertaining and adjudicating upon
two parallel litigations in respect of the same cause of action, the same
subject matter and the same relief.
 It also aims to avoid frivolous litigation and thus save the judicial
system from the wastage of time and money of the State and of the
litigant.
Conditions for Section 10 of CPC
For the application of Section 10 of CPC, the following conditions must be
satisfied:
 There must be two suits, one previously instituted and the other
subsequently instituted.
 The matter in issue in the subsequent suit must be directly and
substantially in issue in the previous suit.
 Both the suits must be between the same parties or their representatives.
 Such parties must be litigating under the same title in both the suits.

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 The previously instituted suits must be pending in the same court in

which the subsequent suit is brought or in any other court in India or
beyond the limits of India having the like jurisdiction.
 The Court in which the previous suit is instituted must have
jurisdiction to grant the relief claimed in the subsequent suit.
Section 10 of CPC Only Bars the Trial
 This Section does not bar the institution of a suit, but only bars the trial.
 The subsequent suit therefore cannot be dismissed by the court but is
required to be stayed. In certain cases, it is necessary for the plaintiff to
file the second suit.
Inherent Power to Stay
 The provisions contained in Section 10 are mandatory and no discretion
is left with the court.
 The order to stay proceedings in the subsequent suit can be made at any
stage.
 When there is a case for the application of Section 10 of CPC, recourse to
the inherent powers under Section 151 of CPC is not justified.
Effect of Contravention
 A decree passed in contravention of Section 10 of CPC is not a
nullity and therefore cannot be disregarded in execution proceedings.
 This Section lays down a rule of procedure, pure and simple, which can
be waived by a party.
 Mere filing of an application under Section 10 does not in any
manner put an embargo on the power of the court to examine the merits
of the matter.
Case Laws
 In the case of Indian Bank v. Maharashtra State Co-operative
Marketing Fed. Ltd. (1998), the Supreme Court held that the rule laid

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down in Section10 of CPC applies to trial of a suit and not the

institution thereof.
 In the case of Ragho Prasad Gupta v. Shri Krishna Poddar (1969), the
Supreme Court held that the Doctrine of Res Sub Judice will not
apply when the matter in issue in a subsequent suit is completely
different from the suit that was instituted initially,

Key differences between res judicata and res sub judice

Grounds of
[Link]. Res judicata Res sub judice
difference

It means a matter is already It applies to the pending suit.

decided and can not be heard It bars parallel proceedings.
1. Meaning again. Res judicata prevents a Res sub judice prevents
second trial of the formerly parallel proceedings on the
settled disputes. same matter.

2. Provisions Section 11 of CPC Section 10 of CPC

Res judicata is applicable to Res sub judice is applicable to

3. Applicability
the suits and applications. the suit and appeals.

The suit had been decided by

There must be two suits and
the competent [Link] issue
one must have already
must be the same in subsequent
[Link] matter in
and former [Link] suit must
issue is the [Link] suit was
4. Essentials be filed between the same
filed in a competent [Link]
[Link] court must have
suit must be pending in
[Link] former and
[Link] title of the suit and
subsequent suits have the same
the parties are the same.
title.

The end of the litigation Prohibit parallel proceedings

5. Aim
proceedings. between the same parties.

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INHERENT POWER OF COURTS

What are Inherent Powers of Court under CPC?
The inherent powers of court refer to the abilities that the court possesses, even
though they are not explicitly mentioned in the Code of Civil Procedure. While
the Code of Civil Procedure outlines the procedures that Civil Courts must
follow when delivering justice, it cannot cover every possible situation that may
arise. Therefore, courts are granted additional powers to address specific
emerging situations or prevent misuse of the legal process.
These inherent powers of court can be exercised as a matter of justice when
there are no specific provisions in the Code of Civil Procedure. However, it’s
important to note that these powers cannot be used in a way that contradicts or
ignores the existing laws.
Provisions for Inherent Powers of Court under CPC: Section 148 to 153B
of CPC
The law concerning the inherent powers of Court can be found in Section 148 to
Section 153A of the Civil Procedure Code. These sections outline how the
court’s inherent powers can be exercised in various situations. Here’s a
breakdown of the provisions related to the inherent powers of the courts:
 Section 148 and Section 149: These sections deal with the granting or
extension of time.
 Section 150: This section addresses the transfer of business from one
court to another.
 Section 151: Section 151 safeguards the inherent powers of the courts.
 Section 152, 153 and Section 153A: These sections cover the
modification of judgments, decrees, or orders, as well as separate
proceedings.
Enlargement of Time [Section 148, CPC]
Section 148 of the CPC explains that when the court sets a specific time frame
for performing an action as required by the CPC, it has the authority to extend

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that period. This extension can happen multiple times, even if the original time
limit has passed.
In simpler terms, if the law sets a deadline for doing something, the court can
give you extra time, up to 30 days, if there’s no other rule that says otherwise.
However, the court has the freedom to decide whether or not to grant this extra
time and the extension can only apply to the originally set time frame. It’s a
discretionary power.
Payment of Court Fees [Section 149, CPC]
Section 149 of the CPC allows the court to give someone a chance to pay the
required court fee if they haven’t paid it fully or partly as required by the law
for documents like complaints or appeals. This permission can be granted even
after the time limit for filing the lawsuit or appeal has passed.
In simple terms, when a document needs a specific court fee, it’s crucial to pay
it on time. If it’s not paid in time, the document could be considered as filed too
late (time-barred). However, Section 149 lets the court decide whether to let you
pay the missing fee later. If the court agrees, your document will be treated as if
you paid the fee on time from the beginning.
This power of the court is discretionary and should be used in the interest of
justice.
Transfer of Business [Section 150, CPC]
Section 150 of the CPC states that unless there is a different arrangement in
place, when the functions or responsibilities of one court are transferred to
another court, the receiving court will have the same authority and
responsibilities as the original court.
In other words, if Court A’s tasks and powers are transferred to Court B, Court
B will assume the same legal authority and duties that were originally
designated for Court A under the CPC.
Saving of Inherent Powers of Court: Section 151 of CPC

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Section 151 of the CPC, which deals with the “Saving of inherent powers of
Court,” ensures that nothing in the CPC can limit or interfere with the inherent
power of the Court to issue orders that are necessary for the interests of justice
or to prevent misuse of the legal process. In other words, the court is not bound
by strict legal provisions and has the discretion to make orders that are not
explicitly provided for in the law, as long as it serves the cause of justice or
prevents abuse of the legal system.
Here are some examples of how Section 151 of the CPC can be applied:
 Correction of Errors: The court can review its own orders and correct
any mistakes.
 Provisional Measures: It can grant temporary injunctions when a case
doesn’t fall under the provisions of Order 39, or it can set aside an ‘ex
parte’ order.
 Setting Aside Illegal Orders: The court has the power to nullify orders
that were made unlawfully or without jurisdiction.
 Consideration of Subsequent Events: It can take into account events
that occurred after a case was initiated.
 Privacy of Proceedings: The court can decide to conduct a trial ‘in
camera’ (in private) or protect the confidentiality of its proceedings.
 Erasing Remarks: It can remove unfavorable remarks made against a
judge.
 Improving a Suit: The court can amend a lawsuit and re-hear it on its
merits or re-examine its previous orders.
When Cannot A Court Exercise Inherent Power?
Section 151 of the CPC is primarily aimed at achieving justice and rectifying
wrongful actions in cases of abuse of the court’s processes, fraud, or
misrepresentation by a party, or in situations where there is a lack of procedural
rules to address specific circumstances in a case. However, while invoking

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inherent powers of court, the court must ensure that it does not undermine this
objective.
It’s important to note that inherent powers cannot be exercised when there is a
specific provision in the code that addresses the issue. In such cases, the code
takes precedence.
Here are some situations in which inherent powers of court under CPC should
not be used:
 Interim Relief: Inherent powers should not be used to grant interim relief
that is typically granted only through a final decree after the resolution of
the main issues in the case.
 Compelling Medical Examination: The court should not use inherent
powers to compel parties to undergo medical examinations or blood tests,
as specific provisions often govern such matters.
 Appointment of a Commissioner: Inherent powers of court under CPC
should not be used to appoint a commissioner to seise account-books in
the possession of the plaintiff, as this can be governed by specific
procedures.
 Order Review: While Section 151 allows for the exercise of inherent
powers, it should not be used to reconsider or review an order, as the CPC
provides distinct mechanisms for this purpose.
 Setting Aside an Ex Parte Decree: Specific provisions in the CPC deal
with setting aside ex parte decrees, so inherent powers of court should
not be invoked for this purpose.
 Striking a Defence: Inherent powers should not be used to strike a
defense when other specific provisions govern such actions.
 Restoring Dismissed Suits: If a suit is dismissed for non-payment of
court fees under Rule 11(d) of Order 7, inherent powers of civil court
should not be used to restore it unless specific conditions are met.

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 Refunding Court Fees: Inherent powers of court should not be used to

refund court fees on a review application unless it is based on grounds
other than a mistake of law or fact.
Amendment of Judgments, Decrees, Orders and Other Records [Section
152, CPC]
Section 152 of the CPC addresses the “Amendment of judgments, decrees and
orders.” Under this section, the court has the authority to correct any written or
mathematical errors in judgments, decrees, or orders. It also allows for the
rectification of mistakes that arise due to an unexpected oversight or
imperfection.
Section 153, on the other hand, provides the “General authority to amend.” This
section grants the court the power to rectify any errors or faults in the
proceedings of a lawsuit. It enables necessary corrections to be made to address
issues that have been raised or that are relevant to the ongoing proceedings.
Both Section 152 and Section 153 of the CPC emphasise that the court can
rectify any errors in its records at any time during the legal process.
Additionally, Section 153A and Section 153B of the CPC,1908, deal with the
power to amend a decree or order when an appeal is summarily dismissed and
the determination of the place of the trial, respectively. These sections provide
specific provisions for addressing certain situations in the legal process.
Case Laws
 In Ram Chand v. Kanhayalal (1966), the Supreme Court held that the
inherent powers under Section 151 of CPC can also be exercised
to prevent the abuse of the process of court.
 In case of Mahendra Manilal Nanavati v. Sushila (1965), the Supreme
Court while expressing its view on the nature of inherent powers of the
court, observed that the Code of Civil Procedure is a special piece of
legislation to deal with procedural situations of proceeding of trials of
civil nature. Under the Code itself, some hidden powers are conformed on

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the courts according to the emerging situations during the proceedings

and courts can exercise them in absence of expressed provisions. But
where there are express provisions in the Code, the Courts are barred
from invoking such powers.

CAVEAT
Introduction
 It often happens that a person anticipates a suit to be filed against him or
her and fears that a ruling might be pronounced in his/her absence which
might affect him adversely.
 In such scenarios, the Code of Civil Procedure, 1908 (CPC) provides for
filing of a Caveat by the person anticipating a suit against him or her.
 The word Caveat has not been defined in the CPC, and is derived from
the Latin word "cavere," which denotes "warning," "hint of caution," or
"let him beware.”
 In law, a Caveat is a formal notice sent by the person requesting to be
informed before pronouncing any adjudication involving him.
Caveat in Civil Procedure Code, 1908
 It is a precautionary measure taken against the grant of probate or letters
of administration as the case may be, by the person lodging the caveat.
 The person filing or lodging a caveat is called ‘Caveator’.
 Inserted by the Amendment Act of 1976, the concept of Caveat is defined
under Section 148A of CPC.
 Section 148A allows a person to lodge a caveat in a suit or
proceeding which is instituted or about to be instituted against him.
 This Sections applies to suits, appeals, revisions, writ petitions, execution
proceedings etc.
Sec. 148A - Right to lodge a caveat

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(1) Where an application is expected to be made, or has been made, in a suit or

proceeding instituted, or about to be instituted, in a Court, any person claiming a
right to appear before the Court on the hearing of such application may lodge a
caveat in respect thereof.
(2) Where a caveat has been lodged under sub-section (1), the person by whom
the caveat has been lodged (hereinafter referred to as the caveator) shall serve a
notice of the caveat by registered post, acknowledgement due, on the person by
whom the application has been, or is expected to be, made, under sub-section
(1).
(3) Where, after a caveat has been lodged under sub-section (1), any application
is filed in any suit or proceeding, the Court, shall serve a notice of the
application on the caveator.
(4) Where a notice of any caveat has been served on the applicant, he shall
forthwith furnish the caveator at the caveators expense, with a copy of the
application made by him and also with copies of any paper or document which
has been, or may be, filed by him in support of the application.
(5) Where a caveat has been lodged under sub-section (1), such caveat shall not
remain in force after the expiry of ninety days from the date on which it was
lodged unless the application referred to in sub-section (1) has been made
before the expiry of the said period.
Some of the Key Highlights Related to Caveat
Objectives of Caveat
 The underlying objectives of a caveat are as follows:
o It safeguards the interest of a caveator so that any ex parte decree
can be avoided.
o It seeks to avoid multiplicity of proceedings.
o By filing of a caveat, a caveator gets a fair chance of being heard.
Essentials of a Caveat Under CPC, 1908

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 An application against the person filing the Caveat is expected to be

made, or has been made, in a suit or proceeding instituted, or about to be
instituted, in a Court.
 The caveator shall serve a notice of the caveat by registered post,
acknowledgement due, on the person by whom the application has been,
or is expected to be, made.
Process After Filing of Caveat
 According to Section 148A (3) of CPC, where, after a caveat has been
lodged, any application is filed in any suit or proceeding, the Court shall
serve a notice of the application on the caveator.
 Where a notice of any caveat has been served on the applicant, he shall
forthwith furnish the caveator at the caveator’s expense, with a copy of
the application made by him and also with copies of any paper or
document which has been, or may be, filed by him in support of the
application.
When a Caveat May be Lodged
 A Caveat may be lodged after the judgement is pronounced or an order is
passed.
 In exceptional cases, a caveat may be filed even before the
pronouncement of judgment or passing of an order.
Period of Expiration of Caveat
 According to Section 148A, a Caveat shall not remain in force after the
expiry of ninety days from the date on which it was lodged.
Form of Caveat
 No form of caveat has been prescribed under the Code.
 A caveat may be file in the form of a petition wherein the caveator has to
specify the nature of the application which is expected to be made or has
been made.
Rights and Duties of the Caveator

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 Sub-section (2) of Section 148A provides that when a caveat has been
lodged under sub-section (1), the caveator shall serve a notice of the
caveat to the person by whom the application has been made or is
expected to be made under sub-section (1).
Rights and Duties of the Court
 The duty of the court arises, once the caveat is lodged and notice is
served upon the applicant.
 Sub-section (3) of Section 148A provides that after a caveat has been
lodged and thereafter any application is filed in any suit or proceeding,
the court must serve a notice to the caveator.
Rights and Duties of the Applicant
 Sub-section (4) of Section 148A, directs the applicant to provide a copy
of the application made by him along with any other document or paper
that may have been filed by him in support of his application to the
caveator.
Landmark Case Laws
 In the case of Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil
Kadeesa Umma (1991), the Kerala High Court held that a caveat is not
to be filed by a person who is total stranger to the case. Therefore,
a Caveator shall be the party to the case.
 In the case of Deepak Khosla v. Union of India & Ors (2011), it was
held by the Delhi High Court that a Caveat under Section 148A of the
Civil Code cannot be made in a criminal or a constitutional matter.

Unit-II: Initial Steps in a Suit

SUIT AND INSTITUITION OF A SUIT
What is a Suit?
The term ‘suit’ is not specifically defined in the CPC, 1908. According to
Black’s Law Dictionary, 4th edition, a ‘suit’ is a general term that covers any

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legal action where one person or a group of people take legal action against
another in a court to seek a remedy provided by the law for addressing a harm
or asserting a right, whether it’s a matter of law or equity.
A ‘suit’ is a formal legal process initiated by filing a complaint to enforce civil
or substantive rights against either the government or an individual. When a
‘suit’ is concluded, it leads to the issuance of a legal judgment or decree.
Without a ‘suit,’ there can be no such judgment.
In the significant case of Hansraj Gupta & Others v. Dehra Dun-Mussoorie
Electric Tramway Co. Ltd. in 1932, the Privy Council ruled that a civil legal
proceeding begins with the submission of a complaint.
Meaning of Institution of Suit
Institution of suit under CPC refers to the formal commencement of a legal
action or civil suit by a plaintiff against a defendant in a court of law. The
institution of suit initiates the legal process by which the plaintiff seeks a legal
remedy, such as a judgment, order or decree, for a particular issue or dispute.
The key components of the institution of suit under CPC typically include:
 Filing a Plaint: The plaintiff starts the process by filing a written
statement known as a “plaint” in the appropriate court. The plaint outlines
the facts of the case, the legal basis for the claim and the relief or remedy
sought.
 Court Selection: The plaintiff must choose the correct court with
jurisdiction to hear the case, meaning that the court has the legal authority
to handle the specific type of dispute and is located within the appropriate
geographic area.
 Payment of Court Fees: The plaintiff is generally required to pay the
prescribed court fees, which may vary depending on the nature and value
of the suit, as per the Court Fees Act, 1870.

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 Service of Summons: After the institution of the suit under CPC the
court issues a summons to notify the defendant of the legal action and
require their appearance in court to respond to the plaintiff’s claims.
 Proceedings: Once the defendant receives the summons and responds,
the legal proceedings unfold, including the presentation of evidence, legal
arguments and ultimately the court’s judgment or decree.
In summary, the institution of suit under CPC is the formal initiation of a civil
legal action, marking the beginning of the legal process to address and resolve a
specific dispute between parties through a court of law.
How Institution of Suit under CPC is Done?
Section 26 and Order IV provide the guidelines for initiating legal proceedings.
Section 26 specifies that every civil suit must begin by presenting a written
statement (called a plaint) in duplicate or as per the rules set out in the Code of
Civil Procedure, to the court or an authorised officer. The facts presented in the
plaint must be supported by an affidavit. To understand this better, we should
also consider Order IV, VI and VII of the first schedule.
Rule 1 of Order IV should be considered alongside Section 26 to expand on the
legal requirements outlined in the section. This rule states that a civil suit is
considered officially started only when a duplicate of the plaint is presented
either directly to the court or to a designated officer. Furthermore, the said plaint
must adhere to the regulations outlined in Order VI and VII.
Section 80 of the CPC mandates that, in cases where the defendant is the
government or a public officer, a legal notice must be delivered before filing a
civil suit. However, it’s important to note that not all civil suits require such a
notice. In some situations, lawyers send legal notices before initiating civil
cases to inform the defendant that they are making a final effort to resolve the
dispute. This is typically done as a precautionary measure.
The procedural steps for institution of a suit under CPC include:
 Drafting a plaint (a formal written statement outlining the case)

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 Selecting the appropriate court for filing the civil suit (the place of suing)
 Presenting the plaint to the court or a designated officer.
Plaint
The institution of a suit under CPC starts with a plaint. A “plaint” is a legal
document through which a plaintiff asks the court for compensation for any
harm caused by the defendant. While there is no strict format for drafting a
plaint, Order VII, Rule 1 of the CPC provides specific requirements for its
content. A plaint should include the following information:
 The name of the court where the civil suit is filed.
 The plaintiff’s name, description and address.
 The name, description and address of the defendant, to the extent known.
 If the plaintiff or defendant is a minor or a person of unsound mind, a
statement to that effect is needed.
 The facts that give rise to the legal claim and when they occurred.
 The facts that establish the court’s jurisdiction.
 The type of relief or compensation the plaintiff is seeking.
 If the plaintiff has accepted a set-off or waived part of their claim, the
amount they’ve allowed or waived.
 A statement of the value of the subject matter of the civil suit for
determining jurisdiction and court costs, to the extent applicable.
In the case of Kavita Tushir v. Pushpraj Dalal (2022), the Delhi High Court
ruled that a plaint cannot be rejected in parts; it must be either accepted or
rejected in its entirety. This means that a plaint should be considered as a whole
and if it is found deficient or problematic, it should be rejected in its entirety
rather than in parts.
Grounds for rejecting a plaint, as outlined in Order VII, Rule 11, include:
 When there is no valid cause of action presented.
 If the relief sought is undervalued and the plaintiff fails to update the
valuation as directed by the court within a specified period.

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 When the relief sought is correctly valued but the plaint is not sufficiently
stamped and the plaintiff is instructed by the court to provide the
necessary stamp paper within a given deadline but fails to do so.
 If the statements in the plaint indicate that the civil suit is prohibited by
any law.
 When the plaint is not filed in duplicate.
 If the plaintiff fails to comply with the provisions of Rule 9.
Appropriate Place of Suing
Sections 15 to 20 of the CPC address the location or place where institution of a
suit under CPC can be done.
Section 15 specifies that the plaintiff should file their civil suit in a court with
the lowest level of competence.
Section 16 outlines that suits must be initiated within the local jurisdiction
where the subject property is situated in cases involving:
 Recovery of immovable property (with or without rent or profits).
 Partition of immovable property.
 Foreclosure, sale or redemption of a mortgage or charge on immovable
property.
 Determination of any other right or interest in immovable property.
 Compensation for damage to immovable property.
 Recovery of movable property under distraint or attachment.
If a suit is filed for relief or compensation for a wrongful act to immovable
property and it can be effectively obtained through the defendant’s presence, it
may be filed in a court within the local jurisdiction where the property is located
or where the defendant resides, carries on business or earns a livelihood. This is
based on the principle of “equity acts in personam,” which means that equity
applies to a person rather than to property.
Section 17 discusses the jurisdiction of suits involving immovable property
located in the jurisdictions of different courts. When immovable properties are

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situated in separate jurisdictions, the suit can be filed in any court within the
local jurisdiction where any portion of the property is located, as long as the
cause of action for both properties is the same.
Section 18 addresses the location for initiating a civil suit in situations of
uncertain court jurisdiction. When there’s doubt about which court should
handle a case involving immovable property, any of the courts involved can
make a statement noting the uncertainty. If the court accepts this uncertainty and
proceeds to hear the case, its judgment will be as valid as if the property was
within its local jurisdiction. However, the court in question should still be
competent based on the nature and value of the case.
Section 19 pertains to suits seeking compensation for harm to a person or
movable property. In such cases, the plaintiff can choose to file the suit either in
the jurisdiction where the defendant resides, conducts business or earns a
livelihood or where the property is situated.
Section 20 serves as a general provision for determining the location for filing a
civil suit. It deals with the initiation of suits where the defendant resides,
conducts business, earns a livelihood or where the cause of action wholly or
partly arises within the court’s jurisdiction. If there are multiple defendants
when the suit begins, it can be initiated in a court where any of the defendants
resides, conducts business or earns a livelihood, provided that the plaintiff
obtains permission from the court. If the defendants agree to the chosen
location, there is no need for court permission.
Presentation of Plaint
Order VII Rule 9 outlines the procedures for admitting a plaint for institution of
suit under CPC. According to this rule:
 The court will issue orders for serving summons on the defendants as per
the guidelines in Order V, Rule 9.

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 The plaintiff is required to provide as many copies of the plaint as there

are defendants and should also pay the prescribed fee for serving these
summons on the defendants within seven days of the court’s order.
 The plaintiff must specify in what capacity the defendant or defendants
are being sued, especially if they are acting on behalf of others. If there is
a need to amend these statements to ensure they align with the contents of
the plaint, the plaintiff may request permission from the court.
 The chief magistrate officer of the court will verify and approve these
lists, copies or statements if they are found to be accurate and in order
after examination.
Formalities After the Institution of Suit under CPC
The institution of suit under CPC before a court or its designated officer is
detailed in Order IV, Rules 1 and 2.
Section 27 pertains to the issuance of summons to the defendant or defendants.
A summons, calling upon the defendant to respond to the claim, is dispatched
within thirty days after the suit is filed and it is served as per the specified
procedure.
Section 28 deals with serving summons to defendants residing in other states.
When a defendant resides in a different state, the summons must be forwarded
to the court in that state, following its established rules. The receiving court acts
as if it had issued the summons itself and sends it back, along with a record of
its actions, to the court that initially issued the summons.
If the summons sent to another state is in a language different from the court’s
official language, a translation of the record is required.

PLEADINGS
What is Pleading under CPC?
Pleading under the Code of Civil Procedure (CPC), 1908, refers to the formal
written statements submitted by the parties involved in a civil suit. These

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documents lay out the respective claims and defences of the plaintiff and the
defendant, setting the groundwork for the legal proceedings. The primary
objective of pleadings is to clearly outline the issues in dispute, enabling the
court to understand the case and facilitating a fair and efficient trial.
The CPC defines two main types of pleadings: the plaint and the written
statement. The plaint is the document filed by the plaintiff, detailing the facts of
the case, the legal basis for the claim and the relief sought. The written
statement is the response submitted by the defendant, addressing the allegations
made in the plaint and presenting any defences.
Pleadings must adhere to specific rules, such as stating only material facts,
avoiding legal arguments and excluding evidence. This ensures that the focus
remains on the facts in dispute, allowing the court to apply the relevant law
during the trial. Properly crafted pleadings help streamline the judicial process,
minimise misunderstandings and ensure that both parties have a fair opportunity
to present their case.
Rules of Pleadings under CPC
The essence of the rules of pleading can be encapsulated in the phrase, “Plead
facts, not law.” This principle requires that the counsel for both parties focus on
presenting the facts of their case rather than interpreting or suggesting
applicable laws.
Basic or Fundamental Rules of Pleadings under CPC
The basic rules of pleadings are outlined in Sub-rule (1) of Rule 2 of Order VI
of the Code of Civil Procedure, 1908. These rules include:
1. Pleading Facts, Not Law: This principle was first emphasised in the case
of Kedar Lal v. Hari Lal, where it was held that parties must state the
facts upon which they base their claims. The court applies the law to
these facts to render a judgement. Parties should not assert or apply laws
in their pleadings.

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2. Material Facts Only: Only material facts should be included in

pleadings. Immaterial facts are not considered. In Union of India v. Sita
Ram, the court clarified that material facts include all facts upon which
the plaintiff claims damages or rights or upon which the defendant bases
his defence.
3. Exclusion of Evidence: Pleadings should contain statements of material
facts but not the evidence by which those facts are to be proved. There
are two types of facts:
 Facts Probanda: Facts that need to be proved (material facts).
 Facts Probantia: Facts by which a case is to be proved (evidence). Only
facts probanda should be included in pleadings.
4. Conciseness: Facts should be presented concisely, without omitting
important details. This ensures brevity and clarity without sacrificing
essential information.
Particulars or Other Rules of Pleadings under CPC
In addition to the basic rules, there are several particulars or specific rules that
must be adhered to:
1. Details in Cases of Fraud, Misrepresentation, etc.: When fraud,
misrepresentation, breach of trust, undue influence or willful default are
alleged, particulars including dates and items must be specified.
2. Consistency in Pleadings: Departure from initial pleadings is generally
not permissible except through amendments. No new grounds or
inconsistent allegations can be introduced without proper amendments.
3. Condition Precedent: Non-performance of a condition precedent must
be specifically mentioned. Performance is implied and need not be
pleaded.
4. Denial of Contract: Denial of a contract implies denial of the facts of the
contract, not its validity, enforceability or legality.

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5. State of Mind: Conditions of the mind (e.g., malice, fraudulent intention,

knowledge) can be alleged as facts without detailing the circumstances
from which they are inferred.
6. Material Facts Only: Only material facts should be stated; immaterial
facts should be excluded.
7. Notice: When a notice is required as a condition precedent, it should be
stated without detailing its form or circumstances unless material.
8. Implied Relations: Implied relationships or contracts can be alleged
generally without detailing the conversations or letters from which they
are inferred.
9. Onus of Proof: Facts that deal with the onus of proof or favour a party
should not be pleaded.
[Link] and Verification: Every pleading must be signed by the party or
their pleader and verified by an affidavit by someone acquainted with the
facts.
[Link]: The party to the suit must provide their address and that of the
opposite party.
[Link]: Every pleading must be supported by an affidavit from the
party or someone knowledgeable about the facts.
[Link] Out Pleadings: Courts may strike out pleadings that are
scandalous, frivolous, unnecessary or intended to embarrass, prejudice or
delay a fair trial.
[Link] of Pleadings: Amendments to pleadings are allowed by the
court to ensure justice.
[Link] and Clarity: Pleadings should be divided into numbered
paragraphs, with each containing a separate allegation or argument.
Dates, sums and totals should be expressed in both figures and words for
clarity.

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[Link]: Wherever applicable, forms from Appendix A of the Code should

be used. If not applicable, similar forms should be employed.
Amendment of Pleadings under CPC
Rules 17 and 18 of Order VI of the Code of Civil Procedure, 1908, govern the
amendment of pleadings. These provisions aim to achieve justice by allowing
necessary amendments that help clarify the issues in dispute.
Rule 17: Amendment of Pleadings
Rule 17 provides that either party may be ordered to amend their pleadings at
any stage of the proceedings in a manner that is fair and just. The objective is to
determine the exact controversial questions between the parties, ensuring that
the pleadings accurately reflect the issues at hand.
Rule 18: Failure to Amend
Rule 18 addresses the consequences of failing to amend pleadings as ordered by
the court. If a party does not amend their pleadings within the specified time
limit or within 14 days if no time is specified, they will not be permitted to
amend after the expiration of this period unless the court extends the time.
Case Laws
 Sathi Vijay Kumar v. Tota Singh (2006):
o The Supreme Court held that, if the parties have not offended the
rules of pleadings by making averments or raising arguable issues,
the court would not order striking out pleadings.
 Kisandas Rupchand & Ors v. Rachappa Vithoba Shilvant & Ors
(1909):
o The High Court of Bombay held that, all amendments ought to
be allowed which satisfy the condition:
 Not working injustice to the other side.
 Being necessary for the purpose of determining the real
questions in controversy between the parties.
 Ganga Bai v. Vijay Kumar (1974):

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o The Supreme Court held that notwithstanding the law of limitation,

the power to allow an amendment is undoubtedly wide and may at
any stage be appropriately exercised in the interest of justice.

APPEARANCE AND NON APPEARANCE OF PARTIES

What are the Appearance and Non-Appearance of Parties in CPC?
In the Code of Civil Procedure (CPC), “appearance” and “non-appearance”
refer to the participation or absence of the parties involved in a legal case during
court proceedings.
Appearance: When a party “appears,” it means they actively engage in the
legal proceedings by being present in court or by being represented by their
legal representative (pleader). This can include attending hearings, presenting
arguments, submitting evidence, and responding to the court’s directions or
questions.
Non-appearance: On the other hand, “non-appearance” signifies the absence of
a party from the court proceedings. If a party is required to be present in court
but fails to attend or be represented by their legal representative, it is considered
a “non-appearance.” This can have consequences depending on the stage of the
case and the rules set forth in the CPC.
The Appearance of Parties to the Suit
According to the provisions of Rule 1 within Order IX of the Code of Civil
Procedure, the involved parties in the lawsuit must make their presence felt in
court, either through personal appearance or by means of their legal
representatives, on the designated date mentioned in the summons.
In the event that the plaintiff or defendant, upon being directed to attend the
proceedings personally, fails to do so without furnishing a satisfactory reason
for their non-appearance, Rule 12 of Order IX confers upon the court the
following powers:
 In case of the plaintiff’s non-appearance, the suit will be dismissed.

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 If the defendant does not make an appearance, an ex-parte order will be

issued.
Non-Appearance of Both Parties to the Suit
In situations where both the plaintiff and the defendant do not appear before the
court during the hearing of the suit, the court is granted the authority to dismiss
the suit per Rule 3 of Order IX. It’s important to note that the dismissal of the
suit under this provision does not prevent the initiation of a fresh suit based on
the same cause of action, as outlined in Rule 4.
Furthermore, the plaintiff has the option to request the court to reconsider the
dismissal if they can sufficiently demonstrate that valid reasons existed for their
non-appearance. Should the court find the justification for the non-appearance
acceptable, it has the discretion to overturn the dismissal order and establish a
new hearing date for the suit.
The Appearance of the Plaintiff
In instances where only the plaintiff makes an appearance while the defendant
does not, the court has the authority to issue an ex-parte order against the absent
defendant. However, it is imperative for the plaintiff to substantiate that the
summons was properly served to the defendant.
Appearance of Defendant
The regulations pertaining to instances where only the defendant appears are
outlined in Rule 7-11 of Order IX. When the defendant is present but the
plaintiff is not, two scenarios may arise:
 The defendant does not concede to the plaintiff’s claim, either in whole or
in part.
 The defendant concedes to the plaintiff’s claim.
If the defendant does not acknowledge the plaintiff’s claim, the court will order
the dismissal of the suit. However, when the defendant fully or partially accepts
the plaintiff’s claim, the court is authorized to issue a decree against the

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defendant based on that admission. For the remaining aspects of the claim, the
suit will be dismissed.
Application to Set Aside the Dismissal
After a suit has been dismissed due to the plaintiff’s non-appearance, there
exists a provision for the plaintiff to submit an application aimed at overturning
the dismissal order. Upon the court’s satisfaction with the presented justification
for the non-appearance as a valid reason, the court holds the authority to annul
the dismissal order and establish a new date for the continuation of the
proceedings.
Ex-Parte Decree
In situations where the defendant is noticeably absent on the scheduled hearing
day as outlined in the summons, an ex-parte decree can be rendered. This type
of decree is issued when the plaintiff appears before the court on the designated
day, but the defendant fails to appear despite proper summons being served. In
such instances, the court is empowered to conduct the proceedings ex-parte and
deliver a decree in favour of the plaintiff in the defendant’s non-appearance.

Unit-III: Interim Orders

COMMISSION
Commissions
 Commission is an instruction or role given by the Court to a person to
act on behalf of the Court.
 The court authorizes the person so appointed to do everything that the
Court requires to do for the accomplishment of justice.
 A person so appointed is known as a Court commissioner.
 Courts power to issue commission is discretionary, it can be exhausted
by the court either on application by a party to the suit or on its own
motion.

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What is the Issue of Commission by the Court?

A commission is essentially an instruction or a role conferred by the court to an
individual, empowering them to act on the court’s behalf to perform certain
judicial tasks. The person who carries out these tasks is known as a Court
commissioner. For instance, in cases requiring local investigations or recording
evidence from a witness who cannot attend the court, a commissioner is
appointed to execute these responsibilities.
Who Can Appoint a Commissioner?
Under the CPC, the court that issues the commission is responsible for
appointing the commissioner. Section 75 of the CPC states that “the Court” can
issue a commission subject to certain limitations and restrictions. Therefore, the
court adjudicating the suit has the authority to appoint the commissioner. This
appointment is typically made at the court’s discretion, either upon the
application of any of the parties involved or by the court’s own motion (suo
moto).
Who Can Be Appointed as a Commissioner?
The individuals appointed as commissioners are generally selected from a panel
formed by the High Court. This panel includes advocates who are deemed
competent to undertake the tasks assigned by the court. The appointed
commissioner should be independent, impartial and disinterested in the suit and
the parties involved. Additionally, the commissioner must possess the requisite
skills to perform the designated duties efficiently.
For instance, appointing a person who cannot comprehend accounts and
documents to adjust accounts would be impractical and a waste of resources.
Similarly, a person without scientific qualifications should not be appointed to
conduct scientific investigations.
The District Judge supervises the subordinate courts, ensuring special care is
taken in the appointment process. The same individual should not be repeatedly

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appointed for all commissions and persons frequently seen around the court
should be avoided to maintain impartiality.
Procedure for Appointment of a Commissioner
Every High Court has the authority (Article 227 of the Constitution of India) to
establish rules and regulations to be followed by the subordinate courts. The
procedure for the appointment of a commissioner is detailed in the rules of each
state’s High Court. For instance, Chapter 10 of the Delhi High Court Rules,
1967, outlines the following procedure for the appointment of commissioners in
Delhi:
1. A panel consisting of no more than four commissioners, including young
persons and a lady lawyer, is formed by the court for recording evidence.
2. The District Court notifies the bar about the vacancies for commissioners
and the bar forwards the applications received to the court, which then
forwards them to the High Court with its recommendations.
3. The term of appointment is generally three years, extendable by an order
of the High Court, but no commissioner can be appointed for more than
six years.
When Can a Commissioner Be Appointed by the Court?
A commissioner can be appointed when the court issues a commission. Section
75 of the CPC empowers the court to issue commissions for various functions,
including:
To Examine Witnesses (Order 26 Rules 1-8)
The general rule of evidence mandates that evidence must be presented before
the court and recorded in open court. However, in extraordinary circumstances,
the appearance of a witness can be dispensed with and the witness can depose
evidence through a commissioner. This exemption applies in the following
scenarios:
1. Sickness or Infirmity: If a witness is bedridden or unable to attend court
due to sickness or infirmity, the court can exempt their appearance and

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allow them to depose evidence to a commissioner. Such witnesses must

submit a certificate from a registered medical practitioner as proof of
their condition (Order 26 Rule 1, CPC).
2. Apprehension of Danger: If a witness apprehends danger to their life
and informs the court and if the court deems it necessary to record their
evidence, a commission may be issued. However, if a party accused of
fraud seeks examination via commission, the court should avoid issuing
the commission to prevent abuse of the procedure.
3. Pardanashin Ladies: The appearance of pardanashin ladies, whose
attendance is exempted under Section 132 of the CPC, can be dispensed
with and their evidence can be recorded by a commissioner.
4. Civil or Military Officers: Civil or military officers of the government,
whose attendance would be detrimental to public service, can have their
evidence recorded by a commissioner (Order 26 Rule 4).
5. Interest of Justice: The court can issue a commission if it believes it is in
the interest of justice, for expeditious disposal of the case or for any other
reason, notwithstanding any rules provided in the order (Order 26 Rule
4A).
6. Persons Exempt from Attendance: Individuals who cannot be ordered
to attend the court in person under Order 16 Rule 19 can be examined by
issuing a commission (Order 26 Rule 4 Proviso).
7. Persons Detained in Prison: A commission can be issued to examine
individuals detained in prison (Order 26 Rule 7).
To Make Local Investigations (Order 26 Rules 9-10)
Commissions can be issued to conduct local investigations to clarify any point
of controversy in the suit. This is especially useful in cases involving property
disputes where the commissioner can visit the site and submit a report to the
court.
To Adjust Accounts (Order 26 Rule 11)

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When complex financial transactions are involved and it is necessary to adjust

accounts, a commissioner can be appointed to scrutinise the accounts and report
to the court.
To Make Partition (Order 26 Rule 13)
In suits involving partition of property, a commissioner can be appointed to
divide the property in accordance with the court’s decree and submit a report on
the partition.
To Hold Scientific, Technical or Expert Investigations (Order 26 Rule 10A)
In cases requiring scientific, technical or expert investigations, a commissioner
with the necessary qualifications can be appointed to conduct these
investigations and provide the court with an expert report.
To Conduct Sale of Property (Order 26 Rule 10C)
For the sale of property in execution of a decree, a commissioner can be
appointed to conduct the sale and report the proceedings to the court.
To Perform Ministerial Acts (Order 26 Rule 12)
A commissioner can also be appointed to perform ministerial acts, such as
signing documents or carrying out other administrative tasks on behalf of the
court.
Powers and Duties of a Commissioner
A commissioner appointed by the court has the authority to undertake the tasks
specified in the commission. The powers and duties of the commissioner
include:
1. Recording Evidence: When appointed to record evidence, the
commissioner must ensure that the evidence is recorded accurately and
comprehensively.
2. Local Investigation: If conducting a local investigation, the
commissioner must visit the site, gather relevant information and submit
a detailed report to the court.

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3. Adjusting Accounts: In cases requiring account adjustment, the

commissioner must thoroughly examine the financial records and prepare
a report on the adjustments made.
4. Scientific or Technical Investigations: For scientific or technical
investigations, the commissioner must carry out the investigation with
precision and submit an expert report.
5. Sale of Property: When tasked with selling property, the commissioner
must conduct the sale in accordance with the court’s directions and report
the proceedings.
6. Ministerial Acts: For ministerial acts, the commissioner must perform
the tasks diligently and report back to the court.

RECEIVER
The Definition of Receiver under the Civil Procedure Code
A receiver is essentially an officer of the court, appointed to take custody of a
property involved in a legal dispute. Their primary responsibility is to maintain
the property, collect any income it generates and ensure its value is preserved
until the court reaches a final decision. For instance, in a property dispute
between individuals A and B, if the court deems it necessary, it may appoint a
receiver to manage the property, thereby preventing either party from misusing
or damaging it.
Purpose of Appointing a Receiver
The primary purpose of appointing a receiver is to prevent any party in
possession of the disputed property from causing irreparable harm or exhausting
its value. When a property is the subject of litigation, it is important to maintain
its status quo to ensure that the final judgment of the court is meaningful and
enforceable. A receiver provides interim protection, ensuring that the property
remains intact and its value is not diminished during the legal proceedings.
The Role and Responsibilities of a Receiver under the Civil Procedure Code

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A receiver, as an officer of the court, acts as the court’s extended arm and hand.
Their responsibilities include:
1. Management of Property: The receiver takes custody of the disputed
property or funds, managing them until a final decree is issued or the
parties reach a settlement.
2. Maintenance and Income Collection: They collect any income
generated by the property, such as rent and use it for the property’s
upkeep. After deducting maintenance expenses, the remaining income is
submitted to the court.
3. Custodia Legis: The property or funds under the receiver’s control are
considered to be in the custody of the law, ensuring their protection and
proper management.
Criteria for Appointing a Receiver By the Court
The appointment of a receiver is a discretionary power vested in the court.
However, this discretion is not absolute and must be exercised judiciously. The
court considers several principles before appointing a receiver:
1. Protective Relief: The appointment is intended as a protective measure
to safeguard the disputed property.
2. Prima Facie Case: The plaintiff must demonstrate a strong prima facie
case against the defendant, indicating a high likelihood of success in the
suit.
3. Irreparable Harm: There must be a significant risk of harm to the
property if a receiver is not appointed.
4. Equity and Conduct: The party requesting the appointment must come
to the court with clean hands, demonstrating fair conduct.
The Appointment of Receiver under the Civil Procedure Code
The power to appoint a receiver lies with the court before which the
proceedings are pending. This can be either the trial court or the appellate court,
depending on the stage of the case. The court exercises its discretion based on

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the principles of justice and convenience, ensuring that the appointment is not
arbitrary or unregulated.
Who Can Be Appointed as a Receiver?
A receiver must be an individual who is independent, impartial and entirely
disinterested in the property involved in the dispute. The fundamental criteria
for appointment are based on the person’s neutrality and lack of any stake in the
disputed property. This ensures that the receiver’s actions are unbiased and
solely aimed at preserving the property.
Typically, the court avoids appointing parties directly involved in the suit as
receivers. However, in extraordinary circumstances, a party to the suit may be
appointed as a receiver if deemed appropriate by the court.
When Can a Receiver Be Appointed?
The court has the discretion to appoint a receiver at any stage if it believes that
neither party should hold the disputed property. This can occur before or after a
decree has been issued. The court has the authority to remove any individual
from possession or custody of the property and place it under the management
of the appointed receiver.
Under Section 94(d) of the Civil Procedure Code, a receiver can be appointed to
prevent the ends of justice from being defeated. Additionally, Section 51(d)
grants the court power to appoint a receiver for the execution of a decree.
Special acts, such as Section 84 of the Companies Act, 2013 and Section 69A of
the Transfer of Property Act, 1882, also provide for the appointment of receivers
by the court.
Powers of the Receiver under the Civil Procedure Code
Order 40, Rule 1(d) of the CPC outlines the powers of a receiver, including:
1. Collection of Rents and Profits: The receiver is authorised to collect
rents and profits arising from the property.
2. Application and Disposal of Rents and Profits: They can apply and
dispose of these rents and profits.

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3. Execution of Documents: The receiver has the power to execute

documents as if they were the owner.
4. Legal Actions: They can institute and defend suits related to the property.
5. Additional Powers: The court may grant additional powers as deemed
necessary.
The receiver enjoys indirect powers as an extension of the court. For example,
interference with the receiver’s possession can be treated as contempt of court.
Additionally, property in the hands of the receiver cannot be attached without
the court’s permission.
Duties of the Receiver under the Civil Procedure Code
Order 40, Rule 3 of the CPC stipulates the duties of a receiver, which include:
1. Furnishing Security: The receiver must provide security to account for
the income received from the property.
2. Submitting Accounts: They must submit half-yearly accounts as directed
by the court, detailing income received and expenses incurred for the
property’s maintenance.
3. Paying Amounts Due: The receiver is responsible for paying any
amounts due to the court.
4. Preventing Value Reduction: The receiver must prevent any reduction
in the property’s value due to willful negligence.
5. Personal Discharge of Duties: The receiver must personally discharge
their duties without delegating or assigning their responsibilities.
Failure to fulfill these duties can result in the court taking action against the
receiver, holding them personally liable for any losses incurred due to
negligence or failure to protect and preserve the property.
Liabilities of the Receiver under the Civil Procedure Code
Order 40, Rule 4 of the CPC outlines the liabilities of a receiver, which arise if
they fail to:
1. Submit Reports: Failure to submit the specified reports.

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2. Pay Due Amounts: Failure to pay amounts due as directed by the court.
3. Prevent Property Loss: Causing loss to the property due to gross
negligence.
4. Perform Directed Duties: Failing to perform any other court-directed
duties.
In such cases, the court may order the attachment of the receiver’s property to
recover losses caused by willful default or negligence. The proceeds from the
sale of the receiver’s property will be used to cover the losses, with any
remaining balance paid to the receiver.
Remuneration of a Receiver under the Civil Procedure Code
Receivers are entitled to remuneration for their services, as fixed by the court.
This compensation covers the receiver’s efforts and any expenses incurred in
maintaining the property. Order 40, Rule 2 allows the court to fix the
remuneration for the receiver’s services through general or specific orders.

TEMPORARY INJUNCTIONS
emporary Injunction Meaning
A temporary injunction is a court order that’s given while a case is ongoing to
keep things the way they are until the case is finally decided. Its main purpose is
to stop someone from causing serious harm to another party during the legal
process. This idea was made clear in the case of “M/S Gujarat Pottling Co.
Ltd. & Ors v. The Coca Cola Company & Ors. (1995)”.
Temporary Injunction in CPC
Temporary injunctions in India are regulated by the Civil Procedure Code of
1908 and the specific rules for their grant and application are as follows:
Order XXXIX, Rule 1: This rule allows the court to grant a temporary
injunction under CPC when it’s considered fair and appropriate to do so in order
to prevent a breach of an obligation or harm caused by a genuine fear of such a
breach.

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Order XXXIX, Rule 2: This rule lays out the conditions that must be met for a
temporary injunction to be granted. These conditions include having a strong
initial case, a balance of convenience and the potential for irreparable harm.
Order XXXIX, Rule 3: This rule explains the process for getting a temporary
injunction in CPC and what you need to do, including submitting an application
supported by a sworn statement.
Order XXXIX, Rule 4: This rule covers the court’s authority to seize property
when it’s necessary to ensure that a temporary injunction isn’t undermined.
Order XXXIX, Rule 5: This rule allows the court to change or cancel a
temporary injunction at any point during the proceedings if it’s appropriate
based on the situation.
Order XXXIX, Rule 6: This rule deals with how long a temporary injunction
in CPC lasts. It can stay in effect until a specific time or until the court says
otherwise.
Order XXXIX, Rule 7: This rule explains what happens if someone disobeys
or violates a temporary injunction. It includes potential contempt of court
proceedings and other remedies for the harmed party.
These rules set out the structure for the granting and management of temporary
injunction under CPC. It’s crucial for both parties seeking or challenging a
temporary injunction to be familiar with these rules and follow the outlined
procedures.
Grounds of Temporary Injunction in CPC
The case of Dalpat Kumar And Another v. Pralhad Singh And Others (1991) has
established three key requirements for application for temporary injunction and
granting a temporary injunction under CPC. They are:
Prima Facie Case
This means that in a lawsuit, there must be a serious and disputed question for a
temporary injunction in CPC. The facts surrounding this question should
indicate a reasonable likelihood of the plaintiff or defendant being entitled to

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relief. It’s important to note that a prima facie case doesn’t require an irrefutable
argument that’s certain to succeed at trial. Rather, it means that the case
presented for the injunction should have sufficient merit to not be dismissed
outright.
Irreparable Loss
If an individual were to suffer an irreparable loss related to the lawsuit before
their legal rights are determined at trial, it would result in grave injustice.
However, it’s essential to understand that losses such as the sentimental value of
an item typically won’t be considered irreparable. On the other hand, damages
that cannot be adequately remedied through legal means, especially when
there’s no fair or reasonable solution, may be regarded as irreparable.
Irreparable harm can also refer to situations where the injury is ongoing or
repetitive, or where it can only be remedied through multiple legal actions.
Sometimes, the term “irreparable damage” relates to the difficulty of
quantifying the amount of harm suffered, but mere difficulty in proving injury
does not establish irreparable harm.
Balance of Convenience
The court must weigh the circumstances of both parties and compare the
potential harm or inconvenience that could result from withholding the
injunction versus granting it. In essence, the court should determine whether the
harm or inconvenience caused by not granting the injunction would be greater
than what could occur if it were granted.
How Long Does Temporary Injunction Last?
The duration of a temporary injunction is determined by the court when it grants
the injunction. According to “Order XXXIX, Rule 6 of the Civil Procedure
Code of 1908,” a temporary injunction can remain in effect until a specified
time or until the court issues further orders.
The duration of a temporary injunction in CPC depends on the type of
injunction granted:

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Pendente Lite Injunction: This type of injunction remains in force until the
conclusion of the ongoing legal proceedings and the final decision of the court.
If the lawsuit is dismissed, the temporary injunction is also lifted.
Permanent Injunction Lawsuit: In cases involving a permanent injunction, a
temporary injunction issued by the court can be made permanent as part of the
final decree. This means that the temporary injunction under CPC effectively
becomes a permanent measure as determined by the court’s final decree.
Can an Injunction Be Issued Against A Court?
Generally, courts are granted immunity from temporary injunctions in CPC to
protect their independence and ensure the proper administration of justice. This
principle is rooted in the concept of judicial immunity. Courts and judges need
certain protections to carry out their functions without undue interference.
However, there are limited circumstances in which an injunction may indirectly
impact a court’s actions or decisions.
For instance, if a court exceeds its jurisdiction or violates established legal
principles, a party may seek relief from a higher court through writs like
certiorari or prohibition. These writs can indirectly affect the proceedings of the
court in question. Additionally, if a court is involved in administrative or non-
judicial functions, it may be subject to injunctions in those specific contexts.

SUMMARY SUITS
Introduction
Order 37 of the Code of Civil Procedure, 1908, provides for a summary suit or
summary procedure for negotiable instruments. A summary suit is a special and
fast way of exercising a claim in an efficient way because, in this procedure,
judges pronounce decisions without listening to the defence. Though this
appears to be a violation of the basic principle of natural justice, ‘audi alteram
partem’, that no one should be convicted without a hearing, this method is only
applied in circumstances in which the defendant has no defence.

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What is an Order 37 suit?

Order 37 of the CPC establishes the summary procedure. The order was created
by keeping in mind some specific suits in order to avoid the undue hindrance
imposed by the defendant, who has no defence. In contrast to other civil claims,
the trials in summary procedure begin after the judge grants leave to the
defendant to challenge the case. The judge dealing with summary suits can pass
judgement in favour of the plaintiff if:
 The defendant has not tried to apply for leave to defend, or if such a
request has been made but rejected, or
 The defendant who is allowed to defend fails to abide by the terms and
conditions upon which leave to defend has been conferred.
Object of Order 37 suit
The goal of summary proceedings is to eliminate undue interference by
defendants who don’t have a defence and to aid in the rapid disposition of cases.
The provision was maintained to guarantee that the defendant does not unduly
extend litigation and hinder the plaintiff from getting a judgement by asserting
unsustainable and ridiculous defences in a type of matter where quick decisions
are essential for the benefit of economic transactions.
Constituents of Order 37 CPC
Rule 1: Application of Order
Rule 1 of Order 37 talks about the courts and types of lawsuits to which Order
37 applies. It states that a matter filed under summary process may be brought
before a civil judge, an additional district judge, a judge of the high court, or
any other court with financial authority.
Rule 2: Institution of summary suits upon bills of exchange, etc.
Rule 2(1) basically deals with the plaintiff and the plaint. The plaintiff must
provide all the relevant details to the court in his plaint. The plaintiff must
provide a particular averment that the complaint is being filed in accordance
with this Order.

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Rule 3: Defendant showing defence on merits to have leave to appear

Rule 3(1) provides that in a claim in which this Order applies, the plaintiff must
provide the defendant with the notice to appear and a copy of the plaint. The
defendant’s appearance must take place within ten days of the summons being
served upon him.
Rule 4: Power to set aside decree
The court has the authority to set aside the ex-parte decree entered in summary
litigation under Rule 4 of Order 37. If it is fair to the court, the court may set
aside the decree, give a stay of execution, or give any other permit to the
defendant to attend to the summons and defend the claim.
Rule 5: Power to order bills, etc., to be deposited with the officer of court.
Under Rule 5 of Order 37, the court may direct that the disputed negotiable
instrument be submitted by a court official.
The court may also ask the plaintiff or defendant to pay some security in the
form of expenses to assure the plaintiff or defendant’s good faith.
Rule 6: Recovery of cost of noting non-acceptance of dishonoured bills or notes
Rule 6 of the Order 37 provides that the possessor of any dishonoured bills of
exchange or promissory note may have the rights under this Order for the
restitution of the costs incurred in the recovery of the value of such bill or note.
Rule 7: Procedure in suits
Rule 7 of Order 37 says that, except as provided in the order, the procedure for
an ordinary civil suit also applies to summary procedures.
Procedure in summary suits
There is a proper procedure that has to be followed while bringing a suit under
Order 37 of the CPC. The procedure followed in a summary suit is as follows:
1. The plaintiff files a complaint.
2. Summons are given to the defendant to be present in court. Summons
must include the sum of money that is claimed in the litigation as well as
a copy of the plaint.

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3. The defendant must appear within 10 days of receiving the summons.

1. If the defendant fails to attend, the claim is presumed acknowledged, and
the plaintiff is entitled to a decision in an amount not exceeding the sum
specified in the summons.
2. If the defendant appears within 10 days, he must provide notice of his
attendance to the plaintiff’s counsel or to the plaintiff himself, and he
must also submit in court an address for service of notices on him.
4. After receiving the defendant’s notification of presence, the plaintiff
issues him with a summons for judgement.
5. The defendant should ask for permission to defend within 10 days of
receiving the summons, and such permission will be given only if the
defendant’s declaration reveals information that the court thinks is
adequate to allow him to defend.
How Order 37 CPC benefits the plaintiff
The main advantage of an Order 37 suit is that the plaintiff is entitled to a
judgement immediately if the defendant fails to establish that he has a
significant defence in his case. Summary proceedings are legal remedies for
recovering money, resolving business transactions, and resolving contractual
disputes. In comparison to a regular suit, such proceedings are often easier to
establish the plaintiff’s case and more difficult for the defendant’s side.
Jurisdiction of summary procedure
Claims can be brought in the following cases:
1. Where the defendant resides;
2. The defendant runs a business or works for a living, or
3. The action’s cause originates entirely or partially.
CASE LAW
Neebha Kapoor v. Jayantilal Khandwala (2008)
The Supreme Court said in Neebha Kapoor v. Jayantilal Khandwala that the
primary public interest behind Order 37 CPC is the quick disposition of

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economic litigation. It specifies a time range to ensure that such disposal is

completed as soon as practicable.
S.S. Steel Industry v. Guru Hargobind Steels (2019)
In S.S. Steel Industry v. Guru Hargobind Steels, the Delhi High Court stated that
Order 37 Rule 2(3) CPC expressly states that the defendant shall not defend the
civil case unless he makes his appearance, and in the absence of his presence,
the assertions in the plaint will be deemed admitted, and the plaintiff is entitled
to a declaration for the total amount not exceeding the amount noted in the
summons.

SUIT BY INDIGENT PERSONS

The term ‘indigent person’ is defined under Order XXXIII, Rule 1 of the CPC.
An indigent person is someone who:
 Does not possess sufficient means to pay the court fees required for filing
a suit.
 Does not own property worth ₹1,000, excluding essential items such as
clothing, household utensils, and other basic necessities.
Thus, indigence is determined by a person’s inability to afford the court fees and
their lack of substantial property that can be liquidated to pay the fees.
Exclusion of Property
While assessing whether a person qualifies as indigent, certain properties are
excluded from consideration. These include:
1. Clothing and household utensils: Necessary for the maintenance of life.
2. Immovable property: If it is an essential source of livelihood and cannot
be easily liquidated.
3. Tools of trade: Tools essential for the person’s trade or profession.
Procedure for Filing Suits by Indigent Persons Under CPC
To file a suit as an indigent person, an individual must follow a prescribed legal
procedure under Order XXXIII. The key steps involved are as follows:

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1. Filing of Application (Order XXXIII, Rule 2)

The first step for an indigent person is to file an application to the court seeking
permission to file a suit without paying court fees. The application must contain
the following details:
 A description of the applicant’s financial status and lack of sufficient
means to pay court fees.
 A schedule of the applicant’s assets, including movable and immovable
property.
 The particulars of the plaint, just like a regular suit.
2. Inquiry into the Application (Order XXXIII, Rule 1A)
Once the application is filed, the court undertakes an inquiry to verify the
applicant’s claim of indigency. This inquiry is primarily conducted by the
court’s chief ministerial officer, although the court itself may also conduct the
investigation if necessary. The inquiry includes:
 Examination of the applicant’s financial status.
 Evaluation of the applicant’s property and assets.
 Inquiry into whether the suit is barred by law or if the applicant has any
ulterior motives.
If the court finds that the applicant is truly indigent, the application is admitted,
and the suit proceeds in the normal course.
3. Notice to the Opposing Party (Order XXXIII, Rule 6)
Before admitting the application, the court issues a notice to the opposite party
(defendant) and provides them with an opportunity to contest the indigency
claim. The defendant may argue that the applicant is not indigent, in which case
the court examines evidence from both sides.
4. Adjudication of the Application (Order XXXIII, Rule 7)
After conducting the inquiry and hearing both parties, the court decides whether
the applicant qualifies as an indigent person. If the court grants permission, the

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application is treated as a plaint, and the case proceeds without the plaintiff
being required to pay court fees.
5. Rejection of Application (Order XXXIII, Rule 5)
The court may reject the application for permission to sue as an indigent person
under the following circumstances:
 The application is not presented in the prescribed manner.
 The applicant is found not to be indigent.
 The applicant has disposed of property fraudulently to qualify as indigent.
 The allegations in the plaint do not disclose a cause of action.
 The suit is barred by law.
 The applicant has entered into any agreement concerning the subject
matter of the suit with another person who has an interest in the case.
If the application is rejected, the applicant is free to file the suit in the ordinary
manner by paying the requisite court fees.
Rights and Liabilities of an Indigent Person
Once an individual is allowed to file a suit as an indigent person under CPC,
certain rights and liabilities are attached to their status.
Rights of an Indigent Person
1. Exemption from Court Fees: The primary right of an indigent person is
that they are exempted from paying court fees for the duration of the suit.
This includes fees for filing the plaint, process fees, and other litigation-
related expenses.
2. Representation by a Lawyer: If an indigent person is not represented by
a lawyer, the court may assign a legal representative to assist them in
pursuing their case. This is in line with the principle of free legal aid, as
enshrined in Article 39A of the Constitution.
3. Right to Appeal: An indigent person may file an appeal against a
judgement or order in the same manner as they filed the original suit—

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without paying court fees. This is provided under Order XLIV of the
CPC.
Liabilities of an Indigent Person
1. Payment of Court Fees if They Succeed: If an indigent person succeeds
in the suit, the court calculates the amount of court fees that would have
been payable had they not been indigent. This amount is then recovered
from the opposing party or the subject matter of the suit. The state has the
first charge on the property involved in the litigation.
2. Withdrawal of Indigent Status: The court may revoke the status of
indigent person if it is found that the individual’s financial situation has
improved, allowing them to pay the court fees. Additionally, if the person
engages in vexatious or improper conduct during the proceedings, the
court may withdraw their indigent status.
3. Liability for Costs if They Fail: If an indigent person loses the suit, they
may be liable to pay court fees and costs, just like any other litigant. In
such cases, the court can order the person to pay the fees retrospectively.
Appeals by Indigent Persons
Under Order XLIV of the CPC, an indigent person may also file an appeal
without paying the requisite court fees. The procedure for filing an appeal as an
indigent person is similar to the procedure for filing a suit. The court conducts
an inquiry into the applicant’s financial status, and if satisfied, grants permission
to file the appeal without fees.
However, if the court rejects the application for appeal, the indigent person is
required to pay the court fees within a specified time. If the fees are paid within
this time, the appeal proceeds as though the fees had been paid from the
beginning.
Case Laws on Suits by Indigent Persons
Several landmark judgements have clarified the rights, liabilities, and
procedures associated with suits by indigent persons:

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1. M.L. Sethi v. R.P. Kapur (1972)

In this case, the Supreme Court held that the provisions of Order I, Rule 10,
relating to the addition of parties, and Order IX, dealing with the consequences
of non-appearance, apply to proceedings under Order XXXIII. This ruling
clarified that suits filed by indigent persons follow the same procedural rules as
regular suits.
2. Union Bank of India v. Khader International Construction (2001)
This case affirmed that Order XXXIII is an enabling provision that allows
indigent persons to file suits without paying court fees at the initial stage.
However, if the suit is dismissed, the state is entitled to recover the court fees
from the plaintiff. The court fees are treated as the first charge on the subject
matter of the suit.
3. Smt. Lakshmi v. Vijaya Bank (2010)
In this case, the court held that the right to sue as an indigent person is
a personal right. If the indigent person dies, the right to sue cannot be inherited
by their legal representatives. However, the court may grant permission to the
legal representatives to continue the suit in an ordinary manner by paying court
fees.

INTERPLEADER SUITS
Introduction
 ‘To interplead’ means to litigate with each other to settle a point
concerning a third party. An interpleader suit is a legal action taken by
a party over a property which is claimed by two or more other parties.
 Under this category of suits, the real dispute does not lie between plaintiff
and defendant rather multiple defendants interplead against each
other.

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E.g. - A finds a phone lying on the road, thereafter both B & C claim the
phone from him. A himself claims no interest in such phone, he can file a
suit of interpleader.
 The provisions for the interpleader suit are provided under Section 88 and
Order 35 of the Civil Procedure Code, 1908 (CPC).
Interpleader Suit under Section 88 of CPC
 Conditions on Which an Interpleader Suit can be Instituted:
o Two or more persons claim adversely to one another the
same debts, sum of money or other property from another.
o Property may be movable or immovable.
o The person from whom the property is claimed, claims no interest
therein other than for charges or costs.
o There must not be any pending suit under which the rights of all
parties can properly be decided.
 Who may File an Interpleader Suit:
o The person who claims no interest in the property other than for
charges or costs may institute the suit of interpleader. The plaint for
the same should be in Form 40 of Appendix A of CPC.
Procedure for Institution of Interpleader Suit
The procedure is provided under Order 35 (Interpleader) of CPC which is as
follows:
 Rule 1: It states that the plaintiff while filing a suit of interpleader must
also state:
o That he claims no interest in the subject-matter in dispute other
than for charges or costs.
o The claims are made by the defendants severally.
o That there is no collusion between the plaintiff and any of the
defendants.

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 Rule 2: It mentions that where the thing claimed is capable of being paid
into Court or placed in the custody of the Court, the plaintiff may be
required to so pay or place it before he can be entitled to any order in the
suit.
 Rule 3: It states that where defendant in an interpleader suit actually
sues the plaintiff in respect of the subject matter, any court in which suit
against plaintiff is pending shall on being informed by the Court in which
suit of interpleader is pending stay such suit.
 Rule 4: At first hearing the court may declare that:
o Plaintiff is discharged from all liability towards defendant in
respect of things claimed.
o If the court thinks that for ends of justice to meet all parties need to
be retained, till the end, it may retain such party.
 Rule 5: It mentions that agents and tenants may not institute interpleader
suit against their principal and landlord respectively.
o Illustration - A deposits a box of jewels with B as his agent. C
alleges that the jewels were wrongfully obtained from him by A,
and claims them from B. B cannot institute an interpleader-suit
against A and C.
 Rule 6: Charge for Plaintiff’s Costs — Where the suit is properly
instituted the Court may provide for the costs of the original plaintiff by
giving him a charge on the thing claimed or in some other effectual way.
Landmark Cases on Interpleader Suit
Mangal Bhikaji Nagpase v. State of Maharashtra (1997): Bombay High Court
held that the plaintiff must declare that he has no interest in the issue other than
expenses and charges.
Puran Chand v. Ram Gopal (2000): In this case, the Delhi High Court
reiterated the principle that an interpleader suit is an appropriate remedy when

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multiple parties assert competing claims to a specific property or fund held by a

third party.

Unit – IV: Appeal, Reference, Review and Revision

REFERENCE, REVIEW AND REVISION

Definition of Reference under CPC
The concept of reference in CPC occurs when a lower court seeks guidance
from the High Court on a legal matter. This typically happens when the lower
court encounters reasonable doubt regarding a legal question during a civil suit,
appeal or execution proceeding. In simple terms, a reference involves asking the
High Court for its opinion on a legal issue.
Section 113 of the Civil Procedure Code
Section 113 grants authority to a lower court to present a case to the High Court
and request its opinion. Such a request is made when the lower court harbours
uncertainty about a legal question.
It’s important to note that parties involved in the civil suit do not have the right
to request a reference; only the lower court possesses the ability to initiate it on
its own. The reference is exclusive to questions of law and the judge presiding
over the case must genuinely doubt the legal aspect in question.
Objectives of Reference in CPC
The main purpose of reference under CPC is to enable lower courts to seek the
High Court’s opinion in non-appealable cases, ensuring clarity on legal matters
and preventing irreversible errors. The provision also serves to guarantee that
the highest court in the state interprets and decides the validity of legislative
provisions (Acts, Ordinances or regulations).
Conditions for Reference under CPC

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The process of making a reference to the High Court, as outlined in Order 46 of

the Civil Procedure Code, involves certain conditions that the subordinate court
must meet. Here are the key conditions:
 The suit or appeal must be actively underway in the court at the time of
making the reference and no further appeal from the court’s order or
decree should be pending.
 The question regarding the validity of a legal provision must have arisen
during the proceedings of the suit in the court.
 The court must be actively handling the suit when the doubt about the
validity of the legal provision emerges.
 During the reference under CPC, the district court has the authority to
either stay the case or issue a contingent order. After considering the High
Court’s opinion, the subordinate court may then proceed to pass a final
order or decree.
Power and Duty of Referring Court
 The referring court should draw up a statement of facts of the case,
formulate the question of law on which opinion is sought and give its
opinion thereon.
 The reference must be made before passing of the judgment in the case.
 The Court making reference may either stay the proceedings or pass a
decree contingent upon the decision of the High Court.
 The High Court, after hearing the parties decide the point, transmit a copy
of its judgment to the court which made the reference.
 The High Court may on reference return the case for amendment or alter,
cancel or set aside any decree/order which the court making the reference
has passed or made and make such order as it thinks fit.
 When the High Court hears a reference, it acts like a court of appeal, but
the jurisdiction of the High Court is consultative.

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 In dealing with and deciding the reference the High Court is not confined
to the question referred by a subordinate court. If a new aspect arises, the
High Court can consider it.
 The High Court may also refuse to answer the reference or even quash it.
 A tribunal cannot make a reference.

REVIEW
Introduction
Review means to look once again. Section 114 and Order 47 of the Code of
Civil Procedure, 1908 (CPC) deals with the concept of review.
Section 114, CPC
 This section states that subject as aforesaid, any person considering
himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Code,
but from which no appeal has been preferred.
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes,
may apply for a review of judgment to the Court which passed the decree
or made the order, and the Court may make such order thereon as it thinks
fit.
Object of Review
 The main object of granting a review of judgment is reconsideration of
the same matter by the same court and the same judge under certain
conditions.
 The power of review is inherited in every court to prevent miscarriage of
justice or to correct grave and palpable errors committed by it.
Application for Review
 A party aggrieved under Section 114 of CPC should be a person directly
and immediately affected by the decree or order.

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 A person who is neither a party to the proceeding nor a decree or order

binds him, cannot apply for review.
 A third party affected or prejudiced by a judgment or order can seek
review.
Order 47, CPC
 Rule 1 of Order 47 of CPC deals with the application for review. It states
that -
(1) Any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed, but from which no
appeal has been preferred.
(b) by a decree or order from which no appeal is allowed.
(c) by a decision on a reference from a Court of Small Causes
(2) A party who is not appealing from a decree or order may apply for a review
of judgment.
Rejection of Application of Review
 As per Sub rule 1 of Rule 4 of Order 47 of CPC, where it appears to the
Court that there is not sufficient ground for a review, it shall reject the
application.
Acceptance of Application of Review
 As per Sub rule 2 of Rule 4 of Order 47 of CPC, where the Court is of
opinion that the application for review should be granted, it shall grant
the same.
Provided that—
(a) no such application shall be granted without previous notice to the opposite
party, to enable him to appear and be heard in support of the decree or order, a
review of which is applied for; and
(b) no such application shall be granted on the ground of discovery of new
matter or evidence which the applicant alleges was not within his knowledge or

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could not be adduced by him when the decree or order was passed or made,
without strict proof of such allegation.
Bar on Certain Applications
 As per Rule 9 of Order 47 of CPC, no application to review an order
made on an application for a review or a decree or order passed or made
on a review shall be entertained.
Case Laws
 In Sow Chandra Kante v. Sheikh Habib (1975), the Supreme
Court held that the underlying object of Section 114 of CPC is neither to
enable the court to write a second judgment nor to give a second innings
to the party who lost the case.
 In Northern India Caterers Ltd. v. Governor of Delhi (1980), the
Supreme Court held that a review proceeding cannot be equated with the
original hearing of the case and the finality of the judgment delivered by
the court will not be reconsidered except where a glaring omission or
parent mistake has crept in earlier by judicial fallibility.

REVISION
Introduction
Section 115 of the Code of Civil Procedure, 1908 (CPC) empowers the High
Court to entertain a revision in any case decided by any subordinate court in
certain circumstances. Revision means the action of revising, especially
critical or careful examination or perusal with a view of correcting or
improving.
An application for revision can be made by the parties to the suit under the
following circumstances where the subordinate court has:
 – not exercised jurisdiction as conferred by law (wrongful assumption of
the court regarding the jurisdiction)

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 – failed to exercise jurisdiction that is vested in it (non-exercise of

jurisdiction by the court)
 – illegally exercised its jurisdiction (irregular exercise of jurisdiction by
the court)
The High court cannot reverse a judgement where:
 – the whole suit has been disposed of by the parties
 – the reversal of such judgement shall cause irreparable injury/loss
against whom it was made
According to article 131 of Limitation Act for a revision of the decree or order,
the limitation period is 90 days. The revision is to be done within that limitation
period.
Conditions for Revision
The conditions for invoking the revisional power of the High Court are:
1. No Appeal Exists: Revision can only be initiated when no appeal lies
against the decision made by the subordinate court. If an appeal is
available, the party must opt for that remedy instead.
2. Jurisdictional Errors: Revision is only applicable in cases where the
subordinate court has committed a jurisdictional error, i.e., it has either
exceeded its jurisdiction, failed to exercise its jurisdiction, or acted in a
manner that is illegal or improper.
3. Discretionary Power of the High Court: The High Court has
discretionary power to entertain a revision petition. It is not mandatory
for the High Court to exercise this power, and it may refuse to intervene if
it finds the issue is not serious enough to warrant revisional scrutiny.
The limitation period for Revision
According to article 131 of the Limitation Act, 1963 for a revision of the decree
or order, the limitation period is 90 days. The revision application is required to
be made before the High Court within the limitation period.
Key Differences: Reference, Review, and Revision

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While Reference, Review, and Revision may appear similar, they serve distinct
purposes and are invoked under different circumstances. The table below
highlights the key differences:

Aspect Reference Review Revision

Subordinate court Aggrieved party or suo

Initiated By Aggrieved party
(suo motu) motu by the High Court

To correct errors in To correct jurisdictional

To clarify doubts on
Purpose the judgement or errors by subordinate
questions of law
order courts

During the pendency After the judgement After the decision of the
When Applied
of the case or order is passed subordinate court

Legal question or Factual or legal error

Nature of Error validity of legal on the face of the Jurisdictional error
provisions record

No specific time limit 30 days from the 90 days from the order
Limitation Period
mentioned decree or order or decree

Case Laws
 In the case of Pandurang Ramchandra Mandlik v. Maruti Ramchandra
Ghatge (1996), the Supreme Court held that an erroneous decision on
question of law reached by the subordinate court which has no relation to
question of jurisdiction of that court cannot be corrected by High Court
under Section 115 of CPC.
 In the case of Welcome Hotel v. State of A.P (1983), the Supreme Court
held that where a court having jurisdiction exercises it in an irregular

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manner due to a mistake of the parties, there is no ground for interference

in revision.

APPEAL FROM ORIGINAL DECREE

Introduction
 Appeal is an application against the order of the subordinate court to the
superior court to check the validity of the order passed by the court.
 Appeal is not an inherent right of a person but a remedy available to the
aggrieved party.
 Part VII of the Code of Civil Procedure, 1908 (CPC) states the
provisions for an appeal from the original decree.
What is an Appeal?
 Appeal is not specifically defined under CPC.
 It is a judicial examination by the superior court of the order of the
inferior court to test the correctness of the inferior court.
 The person preferring an appeal is the appellant and the Court to which
the appeal is preferred is the Appellate Court.
 Anyone aggrieved by a decree or order of a court has the right to appeal
to a higher court, provided such appeal is allowed against that decree or
order.
 In cases where an original jurisdiction court issues a decree, the first
appeal typically lies with the appellate court authorized to hear appeals
from decisions of that specific court.
 Exceptions to this rule may exist if expressly provided by the Code of
Civil Procedure, 1908 (CPC) or any other applicable law.
 Sections 96, 100,104 and 109 of CPC confer the right of appeal.
Who can appeal?
Legal representatives of the original parties or the original parties themselves.
Legal guardian of the minor appointed by the court.

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Any aggrieved person after taking leave of the court.

Right to Appeal?
Appeal is both statutory and substantive right.
Appeal is a statutory right only when it is expressly given under the statute that
an appeal can be preferred.
Appeal is a substantive right when it gives the party a right to appeal the higher
court against the order passed by the subordinate court.
What is the First Appeal Under Code of Civil Procedure,1908?
Sections 96 to 99-A, 107 read with Order 41 of the CPC deal with first appeal.
The first appeal lies against a decree passed by a court exercising original
jurisdiction.
The first appeal can be filed in a superior court which may or may not be a High
Court.
A first appeal is maintainable on a question of fact, or on a question of law, or
on a mixed question of fact and law.
Appeal from an Original Decree
About:
Section 96 of the CPC states the provisions regarding the appeal from the
original decree.
It states that where otherwise expressly provided in the body of this Code or by
any other law for the time being in force, an appeal shall lie from every decree
passed by any Court exercising original jurisdiction to the Court authorized to
hear appeals from the decisions of such Court.
An appeal may lie from an original decree passed ex parte.
No appeal shall arise from a decree passed by the Court with the consent of the
parties.
No appeal shall lie, except on a question of law, from a decree in any suit of the
nature cognizable by Courts of Small Causes, when the amount or value of the
subject-matter of the original suit does not exceed ten thousand rupees.

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Legal Provision:
Section 96 of CPC states as:
Clause (1) states that save where otherwise expressly provided in the body of
this Code or by any other law for the time being in force, an appeal shall lie
from every decree passed by any Court exercising original jurisdiction the Court
authorized to hear appeals from the decisions of such Court.
Clause (2) states that an appeal may lie from an original decree passed ex
parte.
Clause (3) states that no appeal shall lie from a decree passed by the Court with
the consent of the parties.
Clause (4) states that no appeal shall lie, except on a question of law, from a
decree in any suit of the nature cognizable by Courts of Small Causes, when the
amount or value of the subject-matter of the original suit does not exceed ten
thousand. rupees.
Procedure for Filing an Appeal from Original Decree
The Procedure for filing an appeal from original decree is covered under Order
XLI and rules as
Rule 1 states Form of appeal What to accompany memorandum as:
Every appeal shall be preferred in the form of a memorandum signed by the
appellant or his pleader and presented to the Court or to such officer as it
appoints in this behalf. The memorandum shall be accompanied by a copy of
the Judgment.
Provided that where two or more suits have been tried together and a common
judgment has been delivered therefor and two or more appeals are filed against
any decree covered by that judgment, whether by the same appellant or by
different appellants, the Appellate Court may dispense with the filing of more
than one copy of the judgment.
Contents of Memorandum. —

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The memorandum shall set forth, concisely and under distinct heads, the
grounds of objection to the decree appealed from without any argument or
narrative; and such grounds shall be numbered consecutively.
Where the appeal is against a decree for payment of money, the appellant shall,
within such time as the Appellate Court may allow, deposit the amount disputed
in the appeal or furnish such security in respect thereof as the Court may think
fit.
Rule 2 states Grounds which may be taken in appeal:
The appellant shall not, except by leave of the Court, urge or be heard in support
of any ground of objection not set forth in the memorandum of appeal; but the
Appellate Court, in deciding the appeal, shall not be confined to the grounds of
objections set forth in the memorandum of appeal or taken by leave of the Court
under this rule.
Provided that the Court shall not rest its decision on any other ground unless the
party who may be affected thereby has had a sufficient opportunity of contesting
the case on that ground.
Rule 3 states Rejection or amendment of memorandum:
Where the memorandum of appeal is not drawn up in the manner hereinbefore
prescribed, it may be reje cted or be returned to the appellant for the purpose of
being amended within a time to be fixed by the Court or be amended then and
there.
Where the Court rejects any memorandum, it shall record the reasons for such
rejection.
Where a memorandum of appeal is amended, the judge, or such officer as he
appoints in this behalf, shall sign or initial the amendment.
Rule 3A states Application for condonation of delay:
When an appeal is presented after the expiry of the period of limitation
specified therefore, it shall be accompanied by an application supported by

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affidavit setting forth the facts on which the appellant relies to satisfy the Court
that he had sufficient cause for not preferring the appeal within such period.
If the Court sees no reason to reject the application without the issue of a notice
to the respondent, notice hereof shall be issued to the respondent and the matter
shall be finally decided by the Court before it proceeds to deal with the appeal
under rule 11 or rule 13, as the case may be.
Where an application has been made under sub-rule (1), the Court shall not
make an order fact the stay of execution of the decree against which the appeal
is proposed to be filed so long as the Court does not, after hearing under rule 11,
decide to hear the appeal.
Rule 4 states One of several plaintiffs or defendants may obtain reversal of
whole decree where it proceeds on ground common to all:
Where there are more plaintiffs or more defendants than one in a suit, and the
decree appealed from proceeds on any ground common to all the plaintiffs or to
all the defendants, any one of the plaintiffs or of the defendants may appeal
from the whole decree, and thereupon the Appellate Court may reverse or vary
the decree in favour of all the plaintiffs or defendants, as the case may be.
Cases of Appeal from Original decree
 Wada Arun Asbestos (P) Ltd. v. Gujarat water Supply and Sewerage
Board (2009):
o The Supreme Court in this case held that where a decree is
appealed from, any error, defect or irregularity in any order
affecting decision of case may be set forth as a ground of objection
in memorandum of appeal.
 Baldev Singh v. Surinder Mohan Sharma (2003):
o The Supreme court stated that there is no dispute that as against a
decree, an appeal would be maintainable in terms of Section 96 of
the Code of Civil Procedure.

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o Such an appeal, however, would be maintainable only at the

instance of a person aggrieved by and dissatisfied with the
judgment and decree.
 State of Maharashtra v. Hindustan Construction Company Ltd.
(2010):
o The Supreme Court held that the appellant court has power to
grant leave to amend the memorandum of appeal.

APPEAL FROM APPELLATE DECREE

What is Second Appeal?
 Second appeal is the final appellate remedy available under Section 100
of CPC when a party remains dissatisfied with the first appellate court's
decision. It can only be filed before the High Court and is strictly limited
to substantial questions of law.
 Unlike first appeals that examine both factual and legal issues, second
appeals are confined to legal questions of substantial importance since the
1976 amendment. The appeal must involve questions that directly affect
parties' rights, have general public importance, or concern unsettled legal
principles.
 Second appeals form the third tier of India's judicial hierarchy after trial
courts and first appellate courts. They serve as a filtering mechanism,
preventing frivolous litigation while ensuring High Courts address only
significant legal issues rather than re-examining factual determinations.
 The High Court cannot interfere with concurrent findings of fact from
lower courts unless there is legal perversity or misapplication of law. This
restriction maintains judicial efficiency while allowing development of
jurisprudence on important legal questions.
 The memorandum of appeal must precisely state the substantial question
of law involved, and the High Court must formulate this question when

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admitting the appeal. The hearing is then limited to the formulated

question, though courts may frame additional substantial questions with
recorded reasons.
 Second appeals thus represent the final opportunity for legal challenge
while preserving the integrity of the three-tier judicial system and
ensuring judicial resources focus on matters of genuine legal
significance.
Nature of the second appeal
1. The right to appeal is not inherited but it is created by statute. The right to
file suits is inherent in nature.
2. This right starts from the date of filing suits.
3. The decision of Appellate Court is final.
4. The rights cannot be declared void until and unless declared by the statue.
Scope of the Second Appeal
The Second appeal can be exercised only when the case falls under these
categories-
(a ) Question of law is involved.
(b) Question of law should be substantial.
Other justification defined as under Section 100 of CPC.
Question of fact wrongly determined should not be the criteria for the second
appeal
Cases Laws
In the case of Dudh Nath Pandey vs Suresh Chandra Bhattasaali, it was held
that - The High Court can not set aside the finding of facts by the First Appellate
Court.
In the case of Annapoorani Ammal vs [Link], it was held that the High
Court can only interfere when there involves a substantial question of law.

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In the case of Dnyanoba Bhaurao vs. Maruti Bhaurao Marnor, it was held that
finding of fact is against the weight of evidence and there is no question of law
in this.
Substantial Question of Law
The term "substantial question of law" remains undefined by the legislature,
despite its utilisation in the Constitution and other statutes. This phrase defies
rigid classification, and no universally applicable rule can be established to
determine its emergence.
Regarding jurisdiction under Section 100 of the Civil Procedure Code, a High
Court may entertain a second appeal only if it is convinced that the case
"involves" a substantial question of law.
The term "involves" implies that such a question must be pertinent to the case
and necessitates resolution. Mere raising of the question by the appellant does
not suffice for the High Court to entertain the appeal. The term "involves"
underscores a significant element of necessity.
Though the Code does not offer a definition of the expression "substantial
question of law," in Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg.
Co. Ltd, the Supreme Court provided guidance. The Court opined that a
question of law can be deemed substantial if it holds general public importance
or directly and substantially impacts the rights of the parties.
Additionally, if the question remains unsettled by the highest court or if there
exists doubt or room for alternative interpretations, it qualifies as substantial.
However, if the question is settled by the highest court or the principles guiding
it are well-established, rendering the plea raised patently absurd, it ceases to be
substantial.
No second appeal in certain cases
This is defined under Section 102 of CPC:
No second appeal shall lie when it is of cognizable nature by courts of small
issues.

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No second appeal shall lie when there is the finding of errors in the jurisdiction.
Forum of the second appeal
Appeal from original decree– Generally every decree passed by subordinate
court firstly appeal has to lies to High Court. But appeal shall not lie if it has
been passed by the consent of the parties under Section 96 of CPC.
Power of High Court to decide the issue of fact
This is defined under Section 103:
The High Court can decide the issue of facts if sufficient evidence is found and
the court thinks it is necessary for the disposal of an appeal –
 If it has not been decided by lower Appellate Court or both by the Court
at the first instance and to the lower Appellate Court or if it has been
wrongly decided by Court and there involves a substantial question of the
law which is defined under section 100 of CPC.

The distinction between Second Appeal and Revision

[Link] Second Appeal Revision

The second appeal lies under section

1. Revision is defined under section 115.
100,103,108 and order 42.

The second appeal lies when the case Revision lies when there is a jurisdiction
2.
involves a substantial question of law. error.

In the second appeal, the High Court

But in revision High Court cannot decide the
3. can decide questions of fact in various
question of Fact.
situations.

In the case of revision, the High Court has the

The High Court has no power to grant
4. power to decline if it thinks that substantial
relief merely on the equitable ground.
justice has been done.

5. The second Appeal lies only in the The revisional power of the High Court can be
invoked in cases where no appeal lies in the

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High Court. High Court.

The High Court has the power to In revision, the High Court cannot interfere
6. interfere in the second appeal if it is with the judgement of the subordinate court
not legal. even if it is not legal.

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