CIVIL PROCEDURE CODE: MID-SEMESTER EXAMINATIONS 3

I. DECREE, ORDER & JUDGMENT 3

II. JURISDICTION 7
III. PARTIES TO SUITS (O.1) 11
IV. INHERENT POWERS OF COURT FOR THE ENDS OF JUSTICE (SEC. 151) 15
V. FRAME OF SUIT (SEC. 26 & ORDER 2) 16
VI. ORDER 3 16
VII. ORDER 4: INSTITUTION OF SUITS (READ WITH SEC. 26) 16
VIII. PLEADINGS (ORDER VI) 17
IX. PLAINT (ORDER VII) 19
X. SUMMONING OF DEFENDANT (ORDER V) 21
XI. WRITTEN STATEMENT, SET-OFF AND COUNTER CLAIM (ORDER VIII) 24
XII. APPEARANCE AND NON-APPEARANCE OF PARTIES (ORDER IX) 28
XIII. ORDER 10 – NOT DONE. 30
XIV. RES JUDICATA 30
XV. DISCOVERY & INSPECTION [ORDER XI AND SEC. 30(A)]. 32
XVI. ADMISSION (ORDER XII) 34
XVII. PRODUCTION, RETURN AND IMPOUNDING OF DOCUMENTS (O. XIII) 35
XVIII. FRAMING OF ISSUES (ORDER XIV) 36
XIX. DISPOSAL OF SUIT AT FIRST HEARING (ORDER XV) 38
XX. SUMMONING WITNESS (ORDER XVI) 38
XXI. BRINGING A PERSON IN CUSTODY BEFORE COURT AS WITNESS. (ORDER XVI-A) 40
XXII. EXEMPTION FROM BEING WITNESS: 40
XXIII. COMMISSION (ORDER 26) 40
XXIV. ADJOURNMENT (ORDER XVII) 41
XXV. HEARING OF THE SUIT AND EXAMINATION OF WITNESS (ORDER 18) 41
XXVI. AFFIDAVITS (ORDER 19) 42
[Link] (ORDER XX) 43

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XXVIII. INTEREST (PENDENT LITE AND POST DECREE) (SEC. 34)
43
XXIX. COSTS 45
XXX. RES SUB JUDICE (SEC. 10) 46
XXXI. RES JUDICATA 47

Cases
Arjun Singh v. Mohinder Kumar__________________________________________________29
Gundaji Satwaji v. Ramchandra Bhikaji____________________________________________10
Hakam Singh v. Gammon________________________________________________________10
Indian Bank v. Maharashtra State cooperative marketing federation._____________________43
Kokkanda v. Ganpathi__________________________________________________________36
Sangram Singh case____________________________________________________________28

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Civil Procedure Code: Mid-Semester Examinations

I. Decree, order & judgment

1. Judgment

 Definition: sec. 2(9) “judgment" means the statement given

by the Judge of the grounds of a decree or order”
 Contents of judgment: O.20, r.4(2)
a) Statement of facts
b) Issues
c) Decision of court on the issues
d) Reasoning
2. Decree

 Definition: sec. 2(2)

a) Formal expression of adjudication.
b) Conclusively determines the rights of the parties
c) With respect to all or any of the matters in controversy
d) May be preliminary or final, can be part preliminary and
part final too.
- Preliminary: further proceedings are required before
disposal.
- Final: adjudication completely disposes off the suit.
e) Deemed decree (rejection of plaint and decree passed
under sec. 144)
 Contents: O.20, r.6
a) It shall agree with the judgment.
b) The number of the suit.

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 c) Details of parties.
d) Particulars of the claim.
e) Determine the relief granted or other determination of suit.
3. Relationship between decree and judgment

 Sec. 33: The Court, after the case has been heard, shall
pronounce judgment, and on such judgment a decree shall
follow.
 Operative part of the judgment is called “decree”.
4. Appealing against decree: sec. 96 & 97

 (1) 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 to the Court authorized to
hear appeals from the decisions of such Court.
 (2) An appeal may lie from an original decree passed ex
parte.
 (3) No appeal shall lie from a decree passed by the Court
with the consent of parties.
- It’s called “consent decree”.
- There is no adjudication because parties agree.
- It’s like a contract.
 (4) 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.
 Appeal preliminary decree (sec. 97): if a party fails to appeal
against preliminary decree, can’t appeal at the time of
appealing against final decree.
5. Preliminary decree

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  Partition suit: notional partition (O.20, r.13)
 Pre-emption suit (o.20, r. 14).
 O.20, r.12: decrees for possession and mesne profits.
{definition of mesne profit in sec. 2(12)}.
 Mesne profit includes (i)actual profit, (ii)profit which may
have accrued in due diligence and (iii)interest on such profit.
6. Order

 Definition: section 2(14)

- Formal expression of adjudication; not decree.
- Contains discussions of the question at issue and the
reasons which prevailed with the court, which lead to
the passing of the order.
 Appeal from order: 104 and 105
- 104(1): prescribes that no appeal shall lie from an
order, except for the orders prescribed by this section
itself (order 43).
- 104(2): w.r.t to the order that can be appealed; only one
appeal shall lie.
- 105(1): While appealing against decree, one can also
appeal against order if such order affected the decision
of the court.

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6
 II. Jurisdiction
1. There are three types of jurisdictions

 Pecuniary, sec. 6
 Territorial, sec. 16-20
 Subject matter jurisdiction, sec. 9
2. Pecuniary Jurisdiction

 General Rule (sec. 15): every suit to be filed in the court of

the lowest grade which is competent to try it.
 Read with Suit Valuation Act & Court Fees Act.
 As per O.7, r.11: Only undervaluation is a ground for
rejection of suit. This is because if one overvalues, they pay
more court fees and that is beneficial for the court.
 As per O.2, r.2: All reliefs in respect of a cause of action
must be brought in one suit, failure to do so shall bar the
party from bringing subsequent suit to claim a relief from the
same cause of action.
 What if a plaint is amended and the relief claimed exceeds
the subject matter jurisdiction of the court?
- (O.7, r.10) The plaint, at any stage of the proceedings
shall be returned to be presented in appropriate court.
3. Territorial Jurisdiction

 Territorial Jurisdiction matters because of the following

reasons
- O.5, r.4: Summoning of parties
- O.16, r.19: summoning of witness
- No party can be asked to appear unless resident of that
territorial jurisdiction.
 For the purpose of territorial jurisdiction, suits may be
classified into 4 classes.

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 a) Immovable Property (16-18)
i. Sec. 16
- Suit must be filed within the court the local limits of
whose jurisdiction the property falls.
- Provisio: where relief sought can be entirely obtained
through the personal obedience of the defendant, can
sure at:
 The court the local limits of whose jurisdiction the
property falls.
 Local limits of whose jurisdiction the defendant (i)
actually and voluntarily resides, (ii) or carries out
business or personally works for gain. (provided it
can be received completely through the personal
obedience of the defendant)
ii. Sec. 17
- Where immovable property is situated in territorial
jurisdiction of 2 or more court: Any of them.
iii. Sec. 18
- When no clarity with respect to territorial jurisdiction,
one of the court can record a statement to that effect
and proceed with the case.
b) Movable property (sec. 19)
- At the place where: (i) the wrong is committed or (ii)
where the defendant actually and voluntarily resides,
(iii) personally works for gain or (iv) carries on
business.
- Where wrong consists of series of acts: any place
where any of the acts was committed.
- If act at one place and consequences at another: either
of the two.
c) Torts (also sec. 19)

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 - Same as above.
d) Other suits (sec. 20)
- (i) where the defendant actually and voluntarily
resides, (ii) personally works for gain or (iii) carries on
business.
- Where more than one defendant: any place where
either of the defendants (i) actually and voluntarily
resides, (ii) personally works for gain or (iii) carries on
business.
With either the permission of the court or the acquiesce
of the defendants. (defendant can appear under protest
though)
- The cause of action wholly or in part arises (this
differentiates sec. 20 from sec. 19)
4. Subject matter jurisdiction

 General Provision (sec. 9): Court shall have jurisdiction to try

all suits of a civil nature, except expressly or impliedly
barred.
- The presumption is in the favor of jurisdiction of court.
 Explanation to sec 9.
i. Explanation 1

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  Suit where a right to property or office is
contested is a civil suit.
 Notwithstanding such right may entirely depend
on questions of religious rites or ceremonies.
 Right to enter temple, right to hold religious office
(pujari, mutawalli), excommunication from caste
and right to reburial are civil rights.
 The principle question must be civil, the ancillary
question can be religious.
ii. Explanation II
 Test to determine office is not salary but legal
duty to perform certain acts.
 Exclusive jurisdiction clauses
- The jurisdiction cannot be barred completely, if
jurisdiction is conferred on ONLY one court, it is valid.
- However, this court itself should have jurisdiction
under CPC, in the context of sec. 20, if neither of the
conditions are met, the exclusive jurisdiction clause is
not valid. (Hakam Singh v. Gammon).

 CASE: Gundaji Satwaji v. Ramchandra Bhikaji

- Whether a special legislation by itself bars the
jurisdiction under sec. 9?
- No, the special legislation must also have a provision
which excludes jurisdiction. (written notes for full
case)
5. Objections to Jurisdiction (sec. 21 & 22) (is given in the context
of appeal)

Sec. 21

 Any objection must be brought before the court of original

jurisdiction at the earliest possible opportunity before

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 settlement of issues. (applies to territorial, and pecuniary
jurisdiction, NOT subject matter).
 Subject matter jurisdiction can be made at any point in
time because it’s a pure question of law.
 In first appeal – questions of law and fact
 Second appeal- questions of law ONLY.
 Territorial jurisdiction can be a mixed question of law and
fact (dependent on circumstances of the case).
Sec. 22 (related to territorial jurisdiction: 16-20)
 Where a suit can be filed in multiple court, the defendant:
i. After notice to all other parties.
ii. At the earliest possible opportunity
iii. Before settlement of issues
Request for transfer of case to another court.
Sec. 21A
Res judiciata in the context of place of suing.

III. Parties to suits (O.1)

1. Types of parties to a suit.

 (O.1, r.9): no suit shall be defeated due to non-joinder or

misjoinder of parties. However, in case of a non-joinder of a
necessary party, the suit can be defeated.
 The implication of this provision is that there are two types
of parties
a) Necessary party: The party against whom relief is claimed
or who claims the relief. A decree won’t be effective in
their absence. For eg., in case of non-joinder of one of the
co-owners of a property, the suit can be defeated since he
is a necessary party.
b) Proper Party: Rest of the parties are proper parties.

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 2. Misjoinder (o.1, r.10)

 It refers to the wrongful inclusion of party. The court at any

point in time, even without application by any party, strike
out any defendant or plaintiff who has been mis-joined. (O.1,
r.10), and may call upon the plaintiff to amend the plaint if
defendant added)
3. Non-joinder (of necessary party).

 Where you have not impleaded a party that should have been
impleaded (necessary or proper).
 As per o.7, r.11: a plaint can be rejected when there is no
“cause of action”. A cause of action does not arise in case of
non-joinder of a necessary party. Therefore, in case of a non-
joinder of necessary party, a plaint shall be dismissed.
 Sec. 99: no decree shall be reversed on mere irregularity
except for when merits are effected or jurisdiction is effected.
These irregularities comprise misjoinder and non-joinder of
parties. However, the same is not applicable to Necessary
party.
4. Objections concerning non-joinder or misjoinder of parties. (o.1,
r.13).

 At the earliest possible opportunity and before framing of

issues.
 Exception: when grounds for objection subsequently arose.
5. Power of the court to strike out/include names

 Present in o.1, r.10

 In case of a new defendant is added, the court may call upon
plaintiff to amend their pleadings and serve fresh summons
to such new defendant, and even upon the pre-existing
defendants.

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  Provision allowing for amending pleadings: o.6, r.17. the
court may allow the parties to amend their pleadings till the
commencement of trial. After that, only if the court
determined that amendment could not have been raised
earlier despite due diligence. This is because amending
pleadings will also have effect on written statement, and the
same may prejudice the defendant.
6. Impleading new party under o.1, r.10 and Limitation act (sec 21).

 Sec.21 of Limitation Act: Where a new party is added to a

suit, the suit is deemed to be instituted against that party from
the date when such party was impleaded and not when the
suit was instituted originally.
 Read with sub-clause 5 of O.1, r.10: proceedings against a
person is deemed to begin only on the service of summons.
 This effects the limitation condition, as will be presented in
the following example:
A instituted suit on 1 Jan, limitation end on 31 Jan. On 15
January application under o1, r10 brought to implead B,
actually impleaded on 14 Feb. Suit against B is barred by
limitation.


 Exception as mentioned in limitation act (sec. 21):

a) where the court is satisfied that the omission to include a
new plaintiff or defendant was due to a mistake made in
good faith it may direct that the suit as regards such
plaintiff or defendant shall be deemed to have been
instituted on any earlier date.
b) Where it’s an interpleader suit, i.e. defendant becomes
plaintiff and plaintiff becomes defendant.

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 Order 32
In a suit where:
a) The property in question is held in trust.
b) On side is a person beneficially interested in the trust.
c) On other side there is a third party.
- The trustee represents the person who has beneficial
interest.
- BUT, trustee in not necessary party.

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 7. Class-action suit (O.1, r.8)

A. General Points

 General rule (o.1, r.1) is that all parties (necessary and

proper) are to be impleaded in a suit. However, class
action suit is an exception to this general rule.
 As per o.1, r. 8: one or more person can sue and be sued
on behalf of others.
 However, to be such a representative, a person should
not have any conflict of interest. The court has the
power to replace such a representative as well.
 Clause 6: A decree passes under such a suit is binding
on all parties.
B. Class action suit and withdrawal of suit
 Everyone has a right to institute (sec. 9 of CPC) or
withdraw a suit (O.23, r.1).
 However, in a class-action law suit [O.1, r. 8(4)], it can’t
be withdrawn unless consent of all parties is received.
 Procedure for withdrawal in class action law suit: court
will send notice of withdrawal to all parties, if no
objection is received, court shall withdraw.
8. O.1, r.10

 Sub clause 1
- It applies only when a plaintiff has been (i) impleaded
by mistake or (ii) there is doubt as to whom should be
plaintiff.
- Such mistake must be bona fide.
- Any addition or deletion should be necessary for
deciding the “real matter” between the parties. Ruhi’s
explanation: should be for the purpose of deciding the
main issues between the parties.
 Sub-clause 2

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 - It applies to both plaintiff and defendant.
- May add or delete a party.
 Sub-clause 4
- On adding defendant, plaint to be amended (discussed
previously), and can amend under 0.6, r.17
 Sub-clause 5
- proceedings against a person is deemed to begin only
on the service of summons.
- Read with sec. 21 limitation act (as previously
discussed)
9. Who all may be plaintiffs in a suit? (O.1, r.1)

- All persons who have a right of relief.

- And such right of relief arises out of

i. The same act or series of acts.

ii. The same transaction or series of transactions

- Whether jointly or severally

- And where they all brought separate suits, the same

issues of law or fact arise, can merge under sec. 151.

10. Who all may be defendants (o.1, r.3)

- Same rule as above, only “all persons against whom a

right of relief arises”.

IV. Inherent powers of court for the ends of justice (sec. 151)
1. Discretion to pass orders necessary for:

a) Interest of justice

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 b) Prevent abuse of the powers of the court.

2. If there are separate suits, court can club them together (o.1-rule
1&3)

3. The court can also separate joint suits.

V. Frame of suit (sec. 26 & order 2)

1. Sec. 26: generally, a suit begins with the filing of a plaint. In
every plaint, facts shall be proved by affidavit.

2. Order 2

 Rule 1
- bring everything within a single suit so as to prevent
further litigation.
 Rule 2
- General rule is to bring whole of the claim within a
suit.
- Exception: plaintiff can relinquish any part of the claim
so as to bring the suit within the pecuniary jurisdiction
of the court.
- Consequence of relinquishment: cannot bring the
“relinquished claim” later in a separate suit; estoppel.
(splitting the claim is prohibited)

VI. Order 3
 Appoint pleader or agent.

VII. Order 4: institution of suits (read with sec. 26)

1. Rule 1

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  Sub clause 1
- Suit to be instituted by presenting plaint and copy of
the plaint to the court.
 Sub-clause 2
- All such plaints must comply with the relevant
requirements of O.6 & 7.
 Sub-clause 3
- If such plaint does not comply with the requirements of
order 6&7, Suit is NOT duly instituted.
- Lawyers used to send defective plaints (not complying
with order 6&7) in order to escape limitation. In order
to prevent this, sub-clause 3, by way of 1999
amendment was added.

VIII. Pleadings (Order VI)

1. Rule 1

- Pleadings = plaint or written statement.

2. Rule 2

- In paragraphs

3. Rule 14

- Pleadings to be signed by the party and his pleader.

- If not possible for party to sign, the person duly

authorized to do so can.

4. Rule 14A

a) Sub clause 5

- Where registered address is found to be false, the court

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 i. In case of plaintiff

- Stay the suit.

ii. In case of defense.

- Strike out the defense, and bring the defense to a

position where the defendant had never made a
defense. (appear, cross, make arguments on law and
evidence provided by plaintiff).

b) Sub-clause 6

- If the party corrects the address, the court can set aside
the order in sub-clause 5

c) Sub-clause 7

- If there is “sufficient cause” for wrong address, the

court can set aside the order under sub-clause 5.

5. Rule 16

- If any matter is bullshit, the court can amend or remove

it.

6. Rule 17

- Power to alter or amend pleadings at any stage of the

proceedings

- But no application for amending shall be entertained

after commencement of trial.

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 - However, if court comes to the conclusion that despite
due-diligence the party could not have raised the matter
before, the court may allow such application.

IX. Plaint (order VII)

1. Rule 1

- Particulars

2. Rule 7

- Relief to be specifically stated.

3. Transfer of suit (o.7, r.10)

- If at any stage the court finds that it is not the

appropriate court, it can transfer it to an appropriate
court. (earlier read in the context of pecuniary
jurisdiction).

4. rejection of plaint.

A. Rule 11-grounds for rejection of plaint

i. No cause of action.

ii. Undervaluation.

- However, as per the provisio to rule 11, the time period

for correcting undervaluation can be extended. But, it
shall not not be further extended unless there is cause
of an exceptional nature.

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 - This additional extension, as per sec. 148, cannot be for
more than 30 days in total.

iii. No stamp fee.

- However, as per the provisio to rule 11, the time period

for correcting stamp fee can be extended.

- As per sec. 148, this time cannot be for more than 30

days.

- As per 149, where the fee is paid at a later date, it will

be held that it was paid at the initial date itself.

iv. Not filed in duplicate

v. Barred by any law

B. Rule 12- effect of rejection

- Rejection of plaint on grounds under rule 11 by the

court is an “order”. But under 2(2) it’s a deemed
decree, therefore can be appealed under sec. 96.

C. Rule 13

- Rejection of plaint under 11 does not bar fresh suit.

5. Rule 14 (documents as evidence)

- Have to submit all documents that you rely with the

plaint. No document which was not submitted with
plaint cannot be admitted as evidence later, except for
with the consent of the court.

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 X. Summoning of defendant (order V)
1. Rule 1

- Summons is issued after institution of the suit, the use

of the word “may” implies that it is not mandatory to
issue summons to the defendant.

- After the service of summons, the defendant has to file

written statement within 30 days.

- This period can be extended to 90 days, and for

commercial disputes, to 120 days (o.8, r.1)
Whether defendant needs to file written statement?
As per o.8, r.5, a defendant need not to file a written statement, but can still appear
before the court.
He will not have a right to present evidence, but will have the right to cross-examine the
evidence of the plaintiff.
Although o.8, r.1 says “the defendant shall file written statement within 30 days”, the
use of the term shall is only for the time period, if the defendant wishes to file the
written statement in the first place.

- the defendant may send a pleader instead of appearing

in person. Such pleader must have (i) instructions (ii)
ability to answer material questions.

2. Types of summons (rule 5)

Statutory classes.

A) Settlement of issues

B) Final disposal of suit.

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 - Under (order 5, rule 8): where a defendant is issued this
summons, he is to call all the witnesses upon which he
wishes to rely.

Other classes

A. General summons: defendant and pleader both.

B. Special summons: only defendant in person. As per o.5, r.4:

where defendant is asked to appear in person, the territorial
jurisdiction limits of the court have to be kept in mind.

C. Summons for doc: no need to be present in person.

3. Serving summons by court on defendant. (o.5, r.9) (post)

- The serving officer may serve summons through speed

post, registered post, other courier service, mail and fax
as well.

- Where the court receives any form of

acknowledgement of the receipt of summons, it is
considered service of summons.

- Where the defendant refused to accept summons, it

shall constitute served too.

- This rule does not talk about when the defendant can’t
be found, (covered by rule 17). it only covers situations
where the defendant refuses to accept.

4. Serving summons by plaintiff (0.5, r.9A)

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 - Also called dasti summons.

- Where there is refusal to accept the summons, the mere

refusal is not acceptance. The court will re-issue the
summons.

5. Service of summons when defendant refuses to accept the

service or cannot be founds

A. o.5, r.17 (serving officer)

- Fix a copy of the summons on the main door or any

conspicuous part of the last residence.

- Return the original to court

- Record reasons and circumstances.

B. O.5, r. 19 (examine serving officer)

- If the procedure under rule 17 was carried out

i. If the affidavit of the serving officer is verified.

- “may” examine on oath.

ii. If the affidavit is not verified

- “Shall” examine on oath.

- Depending on the examination, court will decide

whether summons was served or not.

- Service of summons matters because if the defendant is

able to show improper service of summons, he can get
ex parte decree se aside under o.9, r.13.

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 6. Substituted service (o.5, r.20)

- Where the court believes that the guy purposely

avoiding being served, it may do the following:

i. Conspicuous part of court.

ii. Conspicuous part of last residence.

iii. Daily newspaper.

iv. Whatever the fuck it likes

- It shall be considered “served”.

Difference b/w rule 17 and rule 20

In 17: The process server, on determining that the defendant can’t be
found, himself sticks the copy of summons on conspicuous part of the
house, without any involvement of the court.
In 20: The COURT orders that such copy be stuck and all.

XI. Written statement, set-off and counter claim (Order VIII)

1. Rule 1

- “Shall” file written statement within 30 days,

extendable to 90.

2. Rule 1A

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 - All evidence that defense relies on, must be given with
WS.

3. Rule 2

- News facts to be specifically pleaded in WS.

4. Rule 3

- Denial to be specific

5. Rule 4

- Denial to not be evasive.

- For example, plaintiff alleges “defendant owes me 1

lakh”. The defendant cannot deny it by simply saying
“I do not owe him 1 lakh”, for he may owe the plaintiff
any other amount. He must say “I don’t owe the
plaintiff anything”.

6. Rule 5

- Specific denial.

- Not necessary to file written statement

- Anything not specifically denied shall be admitted.

7. Rule 9

- Parties are not allowed to file any pleadings after the

initial ones, except by the leave of the court.

- Only exceptions are counter-claims and defense to set-

off.

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 - The court may also require the party to

i. Submit a WS when it initially hadn’t.

ii. Re-submit the WS when initial was sham.

8. Rule 10

- If order under rule 9 is not complied with, the court has

a wide variety of powers to do things.

9. Set-off and counter claim

 Legal Set-off (o.8, r.6)

i. Money suit
ii. Ascertained amount.
iii. Amount must be legally recoverable
iv. The set-off must not exceed pecuniary
jurisdiction.
v. Parties must fulfill the same character as in the
plaintiff’s suit.
a) Step 1: determine character in plaintiff’s suit.
b) Step 2: determine character in defendant’s
alleged set-off.
- Read illustrations from Bare Act (IMP).
 Equitable set-off
- Legal set-off requires that the sum be ascertained,
however, the same requirement is not necessary in
equitable set off.
- The suit and set off must arise of the same transaction,
and must be connected to each other.
- Examples

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 i. Two parties in the same
contract.
ii. Master-servant
iii. Contract for service
 Set off and limitation act (sec. 3 of limitations act)
- As per sec. 3 of the Limitation act, a set-off is instituted
on the date of the suit on which such set-off is pleaded.

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  Counter claim (o.8, r. 6A)
- Any claim whatsoever, need not be in the same
character or ascertained.
- As per limitations act, it is instituted on the day it is
ACTUALLY instituted.

XII. Appearance and non-appearance of parties (Order IX)

1. When do the parties have to appear (o.9, r.1)

- On the date mentioned in summons.

2. Where a summons is not served because the plaintiff did not pay
costs. (o.9, r.2)

- Suit will be dismissed

3. When neither of the parties appear (o.9, r.3)

- Suit will be dismissed

4. Remedy for 2 and 3

- Order 9, rule 4

5. Where summons returned to court unserved, and the plaintiff

fails to apply for fresh summons within 7 days- suit will be
dismissed (o.9, r. 5)

6. Where ONLY plaintiff appears (o.9, r.6)

a) If summons duly served

- Pass an ORDER that the suit be heard ex parte.

b) Where summons NOT duly served

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 - Re-issue summons.

7. Defendant appears during ex parte hearing (o.9, r.7)

i. If provides good cause for non-appearance.

- Will be relegated to the date he was supposed to

appear.

ii. If does not provide good cause

- Only from the date, no relegation (Sangram Singh

case)

8. ONLY defendant appear (o.9, r. 8)

i. If admits no claim

- Dismiss suit

ii. If admits claims (whole or part)

- Pass decree to that effect.

9. Setting aside rule 8 dismissal (o.9, r.9)

- Acts Rej judicata

- Must show sufficient cause for non-appearance, and get

the dismissal set aside by way of an order.

[Link] to get past decree served ex parte, for defendant.

A. Appeal under sec. 96 of CPC, since ex parte decree are

“decrees’.

B. O.9, r. 13

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 - Can be used only when

i. Summons not duly served.

ii. Sufficient cause for non-appearance.

- If you appeal, you cannot bring application under r.13

after dismissal of appeal.

- Provisio to 13: duly served here does not mean strict

procedure. If the defendant was aware of the summons
and knew the date, rule 13 benefit shall not accrue to
him.

XIII. Order 10 – not done.

XIV. Res Judicata

1. Main rule

- Sec. 11

2. Arjun Singh v. Mohinder Kumar

A. Issues

i. Whether there exists a difference between “good

cause” (r.7) and “sufficient cause” (r.13)?

ii. Whether res judicata applies to different stages of

the same suit?

iii. Whether a ruling under o.9, r.7 operates as res

judicata on an application under o.9, r.13?

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 iv. Where the court merely adjourns the suit for
hearing of the decision, can it be called an
“adjournment” for the purpose of rule 7?

32
 B. Held

i. No difference between the two, burden of proof is

higher in the latter because it calls for setting aside
a decree.

ii. Yes, it does, the scope of res judicata is not

restricted to sec. 17.

iii. No it does not; an interlocutory order under rule 7

is not res judicata.

iv. No, it is not an adjournment, it almost equivalent

to decree being passed. The only option hear is to
make an application under rule 13, any court who
hears an application under rule 7 is w/o
jurisdiction.

XV. Discovery & Inspection [Order XI and sec. 30(a)].

1. Scheme of the order

A. Discovery

i. By Interrogatories.

ii. Of Documents.

B. Inspection

iii. Of Documents.

2. Substantive provision [sec. 30(a)]

33
 - The court may (i) on own motion or (ii) application by
party call for discovery:

3. Interrogatories.

A. Application for interrogatories (rule 1).

- It’s a list of questions for other party to answer.

B. Application to the court (rule 2)

- Application along with interrogatories submitted.

- Court decided whether to allow within 7 days of such

application.

C. BS interrogatories.

i. Rule 6: where any question is deemed BS by the

party, can mention the same as affidavit in answer
to the question.

ii. Rule 7: application may be made to court to

remove such question within 7 days of delivery of
interrogatories.

4. Discovery of documents.

A. By way of application of discovery.

B. Court has suo moto power to order discovery at any stage of

the trial.

5. Inspection of document

34
 - If any document is referred in pleadings, the other
party, by way of notice, may ask for its inspection
before the settlement of issues.

- The other party has 10 days to produce that document.

- If it does not produce, it cannot rely on that document.

- The court can also pass an order in this regard.

D. Non-compliance with order of discovery (rule 21)

i. Plaintiff: dismiss suit, and no subsequent suit.

ii. Defense: strike out defense.

XVI. Admission (order XII)

1. Types of admissions

A. Admission by agreement

- Parties agree amongst themselves what will be the

facts.

B. Admission in the pleadings

- By way of set-off or counter claim

C. Admission by notice

2. Significance of admission (o.12, r.6)

- The parties may ask the court to pass a preliminary

decree in light of the admitted facts.

35
 XVII. Production, return and impounding of documents (O. XIII)
- Not needed

36
 XVIII. Framing of issues (order XIV)
1. Rule 1 (what is issue)

A. Issue

i. Material proposition of fact or law.

ii. Affirmed by one party, denied by other.

B. Material proposition

i. Those propositions of law or fact which a plaintiff

must allege to show a right to sue, or a defendant
to maintain defense.

2. Rule 2 (obligation to rule on all issues)

A. Obligation to rule on all issues

- Rule 2 obliges the court to rule on all issues,

irrespective of the fact that the suit may be disposed off
on the basis of a preliminary issue only.

- (remand) o.41. r. 23: where a suit is decreed on a

preliminary issue, and on appeal against such decree, it
is reversed, the appeals court orders the trial court to
try the suit from the beginning again.

- It was to avoid this re-trial that causes wastage of time

that rule was included. So that even if the point of
preliminary issue is reversed, the other issues have
been ruled on and will save time.

37
 B. Exception

- Where it’s a pure question of law pertaining to:

i. jurisdiction or,

ii. any law which bars the suit (example limitations

act).

- The court can dispose the suit even before settling the
issues, and need not follow rule 2.

3. Material from which issues are framed (rule 3)

i. Allegations made in affidavits

ii. Allegations made in pleadings.

iii. Interrogatories.

iv. Content of documents produced.

4. Power to amend, strike-off or add issues at any point before

passing decree (rule 5).

5. Framing issues by agreement (rule 6 and 7)

- parties can frame issues by agreement.

- Court has to ensure free consent and good faith.

6. If the court does not form an issue that a party wants, what is the
remedy?

38
 - An application under o.14, r.5 can be brought, but
Without any change in circumstances, the court will
obviously refuse.

XIX. Disposal of suit at first hearing (order XV)

-

XX. Summoning Witness (Order XVI)

1. Rule 1

- Provide list of witnesses within 15 days from the day

of settlement of issues.

- If one wants to go outside this list, have to make

application before court.

2. Procedure when witness fails to come

A. Examine the serving officer or private party (unlike o.5, it

does not differentiate between the two methods). (rule 1)

B. After this (rule 10)

i. Issue proclamation at last residence or,

ii. Warrant of arrest, or

iii. Attach property, or

C. If after this witness appears and give legitimate excuse for not
appearing, attachment can be removed (rule 11)

D. Even after these measures if (rule 12)

39
 i. Witness does not appear

ii. Appears but without good

excuse

- Court can make him pay fine

- If does not pay fine sell attached property for this fine.

3. What is the procedure when:

i. The court rejects a witness in the list under rule 1 and you want him?

ii. The court refuses to issue summons for one witness?

- Appeal under 105

4. Can the opposite party’s advocate be called as witness?

- Kokkanda v. Ganpathi

A. Issue

- Whether reasons for calling witnesses is to be included

when giving the list under o.16, r.1?

B. Held

- In this instance, the sole purpose of calling the

advocate as witness appears to be, to divest the client
of his services.

- Therefore, the court ought to not allow the advocate to

be called as witness.

40
 XXI. Bringing a person in custody before court as witness. (order
XVI-A)
What if the person can’t be brought out of jail?
- Order 16A, rule 7-appoint a commission to take his
examination.
- Power to make commission and its procedure is
mentioned in o.26.

XXII. Exemption from being witness:

1. Exemption provision-132

2. List of exempted- 133

3. So how do you take their evidence?

- Commission (order 26).

XXIII. Commission (order 26)

1. For people in jail

2. For people who are exempted from being called to court as

witnesses.

3. Rule 4: 60 days period to conclude investigation.

4. Commission has all powers of civil court to ensure attendance.

5. Can’t ask leading questions.

6. After collecting evidence, report is sent to court.

7. The opposite party has to “accept” this report in court and can
raise objections to it as well.

41
 8. Commission may also be established to conduct local
investigations, for example a case of partition.

XXIV. Adjournment (order XVII)

1. Thumb rules for granting adjournment:

A. There must be “sufficient cause”.

B. There can’t be more than 3 adjournments in a

proceeding/suit- mandatory “shall”.

C. Costs to be imposed for adjournment - mandatory “shall”.

D. And such costs may be increased (higher costs) to deter the

parties from taking adjournments- not mandatory.

XXV. Hearing of the suit and examination of witness (order 18)

1. Right to begin (rule 1)

A. Plaintiff – generally has the right to begin

B. Defendant

i. Admits the facts alleged by the plaintiff.

ii. But contends that they give rise to no right to

relief on a (i) point of law or (ii) additional facts

2. Leading evidence (rule 2)

A. Start – the party who has right to begin

B. Second- opposite party.

42
 C. Then the first party can respond to the overall case.

3. Duty of the court to record evidence in its presence

- Although under o.18, r.4, the court has a duty to take

evidence in open court, it can also do so by way of a
commission (o.18, r. 19).

- However, under o.26, r.8: the commission report

cannot be read as evidence in the court unless the
consent of the party against whom it’s tendered is
received.

- But such consent is not required as per o.26, r.8 where

the commission was established to take evidence from
a person who is unable/exempt from appearing as
witness before the court.

- However, an appellate court cannot make a

commission. So, if it’s unable to understand the
language of the commission, it shall order to TC to
establishing a commission again.

XXVI. Affidavits (order 19)

1. Affidavit as evidence

- Court has discretion to determine a fact solely on the

basis of affidavit.

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 - But where the court determines that the other party has
a bona fide need to cross-examine, it shall NOT allow a
fact to be proved solely through affidavit, but may call
the deponent to appear in court and give examination.

2. What is the content of an affidavit

A. General rule

- Facts that the deponent can prove by his own

knowledge. Implication: hearsay and “opinions” are
excluded.

B. Exception

- In the case of interlocutory applications, which are in

the form of affidavits, the deponent can state beliefs or
apprehensions provided he states the grounds for these
beliefs.

XXVII. Judgment (order XX)

1. General rules

2. Important

A. As per rule 3, a judgment on the date of being pronounced is

to be dated and signed, it cannot be changed after that. But,
under sec. 152, clerical and arithmetic errors can be corrected.

XXVIII. Interest (pendent lite and post decree) (sec. 34)

Types of interests under the CPC

44
 1. interest pendent lite

- from date of institution of suit to the date of decree.

- Interest rate which court thinks is reasonable.

2. Normal interest

- From the date amount became due to the date of the

suit.

- Interest rate which court thinks is reasonable.

3. Post decree

A. Non-commercial

- From date of decree to date of actual payment.

- Not exceeding 6%.

B. Commercial

- May exceed 6% but not contract rate of interest.

- If no contract rate of interest, the rate of interest at

which nationalized banks advance loans.

How to determine interest on principle for period

before the institution of suit.

1. If there is any stipulation in the contract

- Follow the contract unless the rate is prohibited by law

2. If no stipulation

A. Usage between parties.

45
 B. Interest prescribed prescribed by particular laws.

C. Market rate

3. Equitable account.

XXIX. Costs
1. Sec. 35 basically

2. Order 20A gives a list of costs.

3. Costs are given along with decree so can be appealed, there can
be an appeal solely on the grounds of a cost.

4. False or vexatious suits costs (sec 35A).

A. The plaintiff is alleging something.

B. It was false or vexatious.

C. Plaintiff knew it was false or vexatious.

5. Costs as conditional precedent in the context of adjournment

(35B)

- So under 35B, where a party takes an adjournment, the

court can apart from imposing costs on it, can also
make the payment of these costs a conditions for the
further prosecution of the suit.

- However, under o.17, r.3: the court, despite the non-

payment of this amount, has the discretion to proceed

46
 with the suit and add this amount to the decree, if the
parties are present.

6. Difference between o.17, r.1 (2) & sec. 35B(b) of CPC

- Prior is general cost of adjournment

- Latter is specific; and paid to the other party.

- So the moment you take adjournment, o.17 shall apply.

But 35B applies when you had to take a “particular
step”. And you:

i. Took an adjournment to take it.

XXX. Res sub judice (sec. 10)

1. Conditions precedent

A. There must be a previously instituted suit and a subsequently

instituted suit.

B. What is prohibited is the “trial” of the subsequent suit and not

mere institution.

C. Matter in issue in the second suit is also directly and

substantially in issue in the previous suit.

D. Parties must also be the same.

E. First court must be competent to try the case- in terms of

jurisdiction.

2. Exceptions:

47
 A. Where previous suit was in foreign court.

B. Since only “trial” is prohibited, getting an interlocutory order

from the subsequent suit is not prohibited; get an anti suit
injunction.

C. Summary suit (o.37)- only when defendant is NOT granted

leave to defend.

3. Case: Indian Bank v. Maharashtra State cooperative marketing

federation.

Held:

A. Trial is of narrow import in sec. 10, does not include

institution of proceeding through plaint.

B. Under o.37, trial begins only after defendant is given leave to

defend. Hence, if defense is not given leave to defend, it shall
not be hit by sec. 10.

XXXI. Res judicata

1. Principles

A. Previously decided suit; heard and finally decided;

application of judicial mind is there.

2. Case

A. Arjun Singh case

48
 - Interlocutory orders; no res judicata.

49