UNIT-II

1) Explain the rules regarding institution of suits?

Introduction
A “suit” refers to any legal proceeding initiated by a plaintiff against a
defendant in a civil court, seeking enforcement of a right, redress of a
grievance, or recovery of property or compensation. It begins when a
party approaches the court by presenting a plaint.
The CPC does not explicitly define the term “suit,” but it forms the
bedrock of civil litigation and includes every legal action initiated by a
private person for enforcement of a right.
Essentials of a suit
parties to the suit
subject matter
cause of action
relief sought

Legal Provision: Section 26 and Order IV of CPC

The institution of a suit is primarily governed by:
Section 26 of the CPC: “Every suit shall be instituted by the
presentation of a plaint or in such other manner as may be
prescribed.”
Order IV: Lays down the procedural aspects for instituting a suit.

Steps for Institution of a Suit

1. Presentation of the Plaint

A civil suit formally begins with the presentation of a plaint, a document
that contains the facts of the case, the relief sought, and the legal grounds
on which the relief is claimed. The plaint must:
Be in writing,
State the name of the court and the parties involved,
Include a concise statement of facts,
Specify the relief claimed,
Be signed and verified by the plaintiff.

The plaint is presented to the appropriate civil court having jurisdiction—

territorial, pecuniary, and subject-matter.

2. Payment of Court Fees

The plaintiff is required to pay court fees as per the Court Fees Act
applicable in the respective state. The amount depends on the nature and
value of the claim. Insufficient payment can lead to the rejection of the
plaint under Order VII Rule 11.

3. Registration and Numbering of the Suit

Once the plaint is accepted, the court registers the suit and assigns a suit
number. This step formally recognizes the beginning of the judicial
process.

4. Issue of Summons
After registering the suit, the court issues summons to the defendant(s),
directing them to appear before the court and respond to the plaint. This is
governed by Order V of the CPC.

Conditions Precedent to Institution

1. Cause of Action
A civil suit must be based on a valid cause of action, a bundle of essential
facts which gives the plaintiff the right to sue.
2. Jurisdiction
The plaintiff must file the suit in a court that has:
Territorial jurisdiction – where the cause of action arose or where the
defendant resides.
Pecuniary jurisdiction – the monetary value of the claim should fall
within the court’s authority.
Subject-matter jurisdiction – the nature of the dispute should fall under
the category the court can adjudicate.
3. Limitation
The suit must be instituted within the limitation period as prescribed by
the Limitation Act, 1963. Filing a suit after the limitation period generally
leads to its dismissal.

Judicial Interpretation
The courts in India have consistently held that presentation of the plaint is
the formal commencement of a suit. In Maya Devi v. Raj Kumari Batra
(2010), the Supreme Court reaffirmed that institution takes place on the
date the plaint is presented before the competent court.
Furthermore, in Lachhman Dass v. Jagat Ram (2007), it was held that
non-compliance with mandatory procedural requirements, such as non-
payment of requisite court fees or filing in a court lacking jurisdiction,
can invalidate the institution of the suit.
2) what is written statement? when set-off or counter claim be
pleaded?
A defendant can plead a set-off or counter claim within this written
statement to pursue their own claim against the plaintiff. A set-off must
be based on an ascertained sum, while a counter-claim can be a claim for
any relief against the plaintiff, not necessarily tied to the same transaction.
set-off and counter claims must ideally be pleaded in the original written
statement which must be filed within 30 days of receiving the summons.
this period can be extended by the court, but generally not beyond 90
days in ordinary suits or a mandatory 120 days in commercial suits

3) write a note on set off and counter claim?

Set-off
* When the plaint includes the issue of recovery of debts, set-off can be
incorporated into the written statement.
* Set-off is not defined in the Code of Civil Procedure, 1908 (CPC), its
gist is borrowed from interpretation in judicial precedents.
* In the case of recovery of debts if defendant has a reciprocal claim, he
can claim through the process of set-off.

Illustration:
A filed a suit against B claiming that he had taken Rs. 50,000 from him
and the amount has become due. Now, B has also claimed that A has
taken Rs. 20,000 from B and the amount is due as a debt. In such a
scenario, both parties are mutually indebted to each other, and they both
have to pay off the debts due to each other. Instead of filing a fresh suit
altogether, B files a set-off claim along with the written statement in
response to the plaint filed by A for those Rs. 20,000 due.
Essentials of Set-off
Defendant has the right to claim.
The plaint must be for the recovery of debts.
The debt amount must be definite and mentioned.
The amount must be of a recoverable nature.
It must be within the pecuniary limit of the court.
Both the parties must fill the same character as mentioned in the plaint.

Position of Set-off in CPC, 1908

Order VIII Rule 6 of the CPC states the particulars of the set-off to be
given in the written statement. The provision states following ingredients:
-The defendant may submit a written statement containing the amount as
debt to set off at the first hearing of the suit and not afterwards.
-It will be on the same footing as a plaint in a cross-suit. But it will not
affect the lien.
-Rules for written statement and claim in the form of set-off are same.

Types of Set-off
There are two types of Set-off as mentioned below: -
Legal Set-off
Legal set-off is allowed under Order 8 Rule 6 of the CPC and applies
when both the plaintiff and defendant owe each other definite and
ascertained sums of money in the same capacity.
Equitable set off
Equitable set-off is recognized by courts on the basis of fairness, even
though it is not explicitly written in the CPC. It applies when the
defendant’s claim arises out of the same transaction or is closely
connected with the plaintiff’s claim, even if the amount is not exactly
fixed or predetermined.
In the case of Maharashtra State Farming Corporation Ltd v.
Belapur Sugar and Allied Industries Ltd (2004), it was held that the
amount claimed must be out of the same transaction and must not be
barred by time in the equitable set-off.

Counter-claim
*It is enshrined in Order VIII Rule 6A – 6G of the CPC.
*It is a claim which is independent in nature or can be separated from the
claim of the plaintiff.
*When the cause of action arises against the plaintiff the defendant gets
the right to submit that claim along with the written statement.
*It is considered as a plaint by the defendant against the claim of the
plaintiff and is dealt with in the same manner as a plaint.
The Supreme Court held the right to file a counterclaim is a statutory
right, in Laxmidas v. Nanabhai (1964).

Essentials of Filing Counterclaim

* It must be filed by the defendant.
*It must be an independent claim that is separable in nature.
*It must be filed against the plaintiff. It can be filed against co-
defendants in some scenarios.
*It must be in respect of any incident that happened before or after the
filing of the suit.
*It cannot be filed at the appellate stage before the appellate authority.
Purpose of Counterclaim
To stop the multiplicity of suits.
To save the time of the court of law.
To make the civil procedure convenient for parties.
To make the timely trials.
when to file a counter-claim
In the case of Ashok Kumar Kalra vs Wing Cdr, Surender
Agnihotr, the court allows the filing of a counter-claim under the
following circumstances:
*The counter-claim can be filed before or after the initiation of the
lawsuit.
*It should be filed before the defendant has submitted their written
statement.
*It should be filed before the time limit set for delivering the defendant’s
defence expires.

4) what is summon? explain the mode of service of summon

5) what is pleadings? Explain the general rules of pleadings.

According to order 6 Rule 1 of the Code of Civil Procedure (CPC), 1908,
pleadings refers to the formal written statements submitted by the parties
involved in a civil suit. These 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.

Rules of pleadings
The four words which can crisply summarize the rule of pleadings is
‘plead facts not law’. The counsel of both parties should only project
facts in their respective case, rather than suggesting on the laws
applicable in the particular case.
To gain a crystal clear understanding of the same, the rules can be
studied in two parts that is:
1) Basic or Fundamental rules
2) Particulars or other rules
Basic or Fundamental rules of pleadings
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:
Facts should be pleaded upon and not the law
This was first held in the case Kedar Lal V. Hari Lal where it was held
that parties are under the duty to state the facts on which they are
claiming their compensation. The court shall apply law as per the stated
facts to render the judgment. One should not assert or apply any laws for
claiming rights on the stated facts.
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.
Evidence should not be included while pleading
It says that pleadings should contain a statement of material facts on
which the party relies but not the evidence by which those facts are to be
proved.
There are two types of facts:
Facts Probanda: the facts which needs to be proved, I.e., material facts
Facts Probantia: facts by which a case is to be proved. I.e., evidence
only facts Probanda should be included in pleadings.
Facts should be presented in concise manner
This is the last and final basic rule of pleadings. Compressed and crisp
presentation must be adhered while presenting the pleadings. At the same
time, it must be kept in mind that in order to maintain brevity of facts one
should not miss out an important facts in the pleadings.

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:
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.
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.
Condition Precedent: Non-performance of a condition precedent must
be specifically mentioned. Performance is implied and need not be
pleaded.
Denial of Contract: Denial of a contract implies denial of the facts of the
contract, not its validity, enforceability or legality.
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.
Material Facts Only: Only material facts should be stated; immaterial
facts should be excluded.
Notice: When a notice is required as a condition precedent, it should be
stated without detailing its form or circumstances unless material.
Implied Relations: Implied relationships or contracts can be alleged
generally without detailing the conversations or letters from which they
are inferred.
Onus of Proof: Facts that deal with the onus of proof or favour a party
should not be pleaded.
Signing and Verification: Every pleading must be signed by the party or
their pleader and verified by an affidavit by someone acquainted with the
facts.
Address: The party to the suit must provide their address and that of the
opposite party.
Affidavit: Every pleading must be supported by an affidavit from the
party or someone knowledgeable about the facts.
Striking Out Pleadings: Courts may strike out pleadings that are
scandalous, frivolous, unnecessary or intended to embarrass, prejudice or
delay a fair trial.
Amendment of Pleadings: Amendments to pleadings are allowed by the
court to ensure justice.
Structure 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.
Forms: Wherever applicable, forms from Appendix A of the Code
should be used. If not applicable, similar forms should be employed.

6) write a note on verification of pleading?

Verification of pleadings is a critical procedural requirement under
the Code of Civil Procedure (CPC). It serves as a safeguard to ensure that
the statements made in the pleadings are truthful and responsible. Order
VI, Rule 15 of the CPC mandates that every pleading filed in a court must
be verified by the party or their authorized agent, attesting to the truth of
the facts contained therein. Failure to comply with this requirement can
result in the rejection of the pleading unless the defect is curable.
Key Provisions of Order VI Rule 15 and Rule 15A
Order VI Rule 15 requires that every pleading, whether it’s a plaint,
written statement, or other document, must be verified by the party who
has filed it. The verification must include an assertion that the facts in the
pleading are true to the knowledge of the party and believed to be true.

Rule 15A was introduced to address situations where there is a defective

verification or absence of verification. Rule 15A specifies that if a
pleading is not verified or is defectively verified, the court may allow
time to correct the defect. However, if the defect is not corrected within
the time allowed, the pleading can be rejected.
Importance of Verification
The verification of pleadings serves as a guarantee of accountability. It
ensures that the party filing the pleading acknowledges responsibility for
the facts presented and confirms that they are not submitting false or
misleading claims. This verification helps courts manage frivolous
lawsuits and ensures that the integrity of the judicial process is
maintained.
Analysis: Curable vs. Incurable Defects in Verification
Type of Defect Curability
-Failure to mention specific Curable with court permission
knowledge and belief
-Omission of
signature or date Curable by filing a fresh
verification
-Non-filing of
affidavit Curable if filed within reasonable
time
-Failure to verify
amendments Curable by filing
an affidavit for
amendments
-Fraudulent or false verification Incurable and
may led to
dismissal of the
case

Relevant Case Laws on Verification of Pleadings

Deccan Edibles Private Limited v. S.P.J. Cargo Private

Limited (2013) 9 SCC 628

The Supreme Court said that proper verification of pleadings is important.

However, small mistakes in verification can be corrected and should not
cause the whole case to fail. If the main points of the case are clear and
correct, the court can allow the party to fix the verification through an
amendment. Minor technical errors should not affect the case’s outcome.

F.A. Sapa v. Singora and Others

This case dealt with the issue of defective verification. The Court held
that the non-compliance with verification requirements could lead to the
rejection of the pleading. However, it also reaffirmed that technical
defects (such as missing signatures) could be corrected through
amendment.
7) what is plaint? briefly explain the different parts of a plaint and
state the circumstances when a plaint can be rejected.
A plaint is a written statement or pleading filed by the plaintiff in a civil
court to begin a civil suit. It contains the facts of the case, the cause of
action, the relief claimed, and other relevant details. It forms the
foundation of the case and informs the court and the defendant about the
plaintiff’s claims.
Particulars to be contained in a plaint
Rule 1 of Order VII (7)deals with the particulars to be contained in a
plaint. It states that -
The plaint shall contain the following particulars: —
1. Name of the Court: The plaint must specify the court where the suit is
filed.
2. Parties to the Suit: The names and addresses of the plaintiff and
defendant(s) must be clearly mentioned.
3. Cause of Action: The plaint must disclose a cause of action, i.e., the set
of facts that give rise to a legal claim.
4. Jurisdiction of the Court: The plaint must state how the court has
jurisdiction to hear the case.
5. Facts Supporting the Claim: The plaint should contain material facts in
a sequential manner.
6. Relief Sought: The specific relief sought by the plaintiff must be
clearly stated.
7. Subject Matter Value: Include a statement of the value of the subject
matter for jurisdiction and court fee purposes.
8. Verification and Affidavit: The plaint must be verified and signed by
the plaintiff or an authorized agent, as per Order VI, Rule 15.

Who Can File a Plaint?

A plaint can only be filed by the plaintiff, which is the person initiating a
civil lawsuit in court.
How to File a Plaint?
-Drafting the Plaint: Ensure the plaint includes all essential particulars
as mandated by Order VII Rule 1 of the CPC.
-Vakalatnama Submission: If represented by an advocate, file a
Vakalatnama authorizing the legal representative to act on behalf of the
plaintiff. A vakalatnama is basically a legal document that allows an
advocate to represent a client in court.
-Court Fee Payment: Pay the requisite court fees, which may vary based
on the nature and value of the claim.
-Document Submission: Attach all relevant documents supporting the
plaint, ensuring compliance with evidentiary requirements.
-Filing the Plaint: Submit the plaint along with all accompanying
documents to the court registry.
-Issuance of Summons: Upon admission, the court issues summons to
the defendant to appear and respond to the suit.

circumstances when a plaint can be rejected

As per Order VII, Rule 11, a plaint may be rejected on the following
grounds:
1. Failure to disclose a cause of action (rule 11[a])
If the cause of action is not clearly mentioned in the plaint, making it
impossible to prove the harm suffered by the plaintiff, the court may
reject the plaint. It’s essential to present the facts clearly to seek relief. in
the case of SNP Shipping Service Pvt. Ltd. v. World Tanker Carrier
Corporation, the Bombay High Court, rejected the plaint of the plaintiff
due to the non-disclosure of cause of action in plaint
2. The suit is undervalued (11[b])
It is important to ensure that the value of suit is determined correctly, for
the purpose of attaching the court fees. If the plaintiff undervalues the suit,
there is a reduction in court fees, which ultimately leads to rejection of
plaint.
3. The plaint is not sufficiently stamped (11[c])
Court stamps plays an important role in determining the value of the suit,
and thus, an improperly stamped plaint can be rejected. Thus, it is crucial
to ensure that, with the correct valuation of the suit, the plaint is stamped
properly for the court to receive the appropriate value for processing the
plaint and carrying on with the proceedings of the suit.
4. The plaint is barred by law (11[d])
In simpler terms, a plaint can be rejected if the statements contained in it
are prohibited by law. An example of the same is the bar of limitation
5. The plaint is not filed in duplicate (11[e])
As per order IV Rule 1, a duplicate of the plaint is to be submitted when
it is filed at the filing centre. If a duplicate of the plaint is not filed, it
shall be rejected.
6. Non-compliance with any statutory provision (11[f])
If the plaintiff does not comply with Rule 9, which provides for the
procedure of admitting plaint. It provides that the processing fee and
copies of the plaint are to be filed within seven days of the day the
summons were issued to the defendant. If the same is not done, the plaint
shall be dismissed.
case laws relating to rejection of plaint
Sopan Sukhdeo Sable v. Assistant Charity Commissioner (2004)
The Court ruled that while considering rejection of plaint, the entire plaint
must be read as a whole, not selected paragraphs. If no cause of action is
disclosed after a full reading, the plaint must be rejected.

Saleem Bhai v. State of Maharashtra (2002)

The Court held that an application under Order 7 Rule 11 should be
decided only on the basis of averments in the plaint. The defendant’s
written statement or supporting documents cannot be considered at this
stage.

8) what are costs? explain the different types of costs awarded in civil
cases?
In civil litigation, costs refer to the expenses incurred by the parties
involved during the legal process, including court fees, legal
representation, and other related costs. The award of costs plays a vital
role in balancing the interests of both parties by compensating the
successful party and discouraging unnecessary litigation. Costs are not
only a financial concern but also serve as a deterrent against frivolous
claims, ensuring that the legal process remains efficient and fair.
According to the Black’s Law Dictionary “costs is a pecuniary allowance
made to the successful party for his expenses in defending or prosecuting
a suit or a distinct proceeding with a suit”.
In India, the Civil Procedure Code (CPC), 1908, governs the provisions
related to costs, particularly under Sections 35, 20A, 35A, and 35B.
Types of Costs under the Civil Procedure Code
The CPC provides for four main types of costs, each with its own distinct
purpose in litigation:
1. General Costs (Section 35): Reimbursement for Legal Expenses
2. Miscellaneous Costs (Order 20A): Specific Litigation Expenses
3. Compensatory Costs for False or Vexatious Claims (Section 35A):
Penalizing Frivolous Litigation
4. Costs for Causing Delay (Section 35B): Discouraging Delay Tactics
1. General Costs (Section 35): Reimbursement for Legal Expenses
General costs refer to the expenses incurred by the successful party
throughout the litigation process. The principle of “costs follow the event”
is generally applied, meaning that the losing party is liable to pay the
winning party’s costs. However, the court retains discretion to deviate
from this principle if there are valid reasons, which must be recorded in
writing.
Principles Governing General Costs:
Discretion of the Court: The court has wide discretion to determine the
amount of costs to be awarded, provided this discretion is exercised
judiciously.
Costs Follow the Event: Ordinarily, the successful party is entitled to
costs unless the court finds reasons to deviate from this rule.
Recording of Reasons: If the court chooses not to award costs, or awards
costs to the losing party, it must explicitly state the reasons for such a
decision.
Relevant Case Law:
In Amarendra Komalam v. Usha Sinha, the court emphasized that
while awarding costs is discretionary, the decision must be transparent. If
the court does not award costs, it must record the reasons for its decision.
This case reinforced the need for transparency in judicial decision-
making regarding costs.

2. Miscellaneous Costs (Order 20A): Specific Litigation Expenses

Order 20A of the CPC permits the award of specific miscellaneous
costs that a party incurs during litigation, such as:
Giving legal notices
Typing charges
Inspection of court records
Producing witnesses
Obtaining certified copies of documents
These miscellaneous costs aim to cover expenses beyond legal fees and
ensure that litigants are fairly compensated for legitimate expenditures
that arise during the litigation process.
Relevant Case Law:
In Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust,
The Supreme Court said that giving only a very small amount as costs is
not enough. The Court explained that the costs awarded should match the
real expenses spent by the litigating party so that the process is fair for
everyone.

3. Compensatory Costs for False or Vexatious Claims (Section 35A):

Penalizing Frivolous Litigation
Section 35A provides for compensatory costs in cases where a party
brings a false or vexatious claim or defense. This section is intended to
deter parties from abusing the legal process by filing baseless suits
designed to harass the opposing party.
Conditions for Awarding Compensatory Costs:
The claim or defense must be false or vexatious.
The opposing party must raise an objection, proving the vexatious nature
of the claim or defense.
The claim must be disallowed, withdrawn, or abandoned.
Relevant Case Law:
In T. Arivanandan v. T.V. Sathyapal, the court emphasized the
importance of awarding compensatory costs in cases of malicious
litigation. The court noted that such costs serve as an essential deterrent
to litigants who seek to misuse the judicial process.

4. Costs for Causing Delay (Section 35B): Discouraging Delay Tactics

Section 35B of the CPC penalizes parties who cause undue delays in
litigation. This provision empowers the court to impose costs on a party
that fails to take necessary procedural steps, or seeks unnecessary
adjournments. The objective is to ensure that litigation is conducted
efficiently and without unnecessary delays.
Relevant Case Law:
In Mohammad S. Laiquiddin v. Kamala Devi Misra, The Supreme
Court criticized parties who intentionally delay court cases. It emphasized
that Section 35B is important for delivering justice on time, as it punishes
those who cause unnecessary delays.

9) write a note on representative suit?

A representative suit is a legal mechanism that allows one or more
individuals to sue or be sued on behalf of a larger group of people who
share a common interest in the outcome of the suit.
This provision, primarily governed by Order I, Rule 8 of the CPC,1908
in India, serves as an exception to the general rule that all interested
parties must be individually named in a lawsuit.
Object and purpose
The primary objective of a representative suit is to facilitate the efficient
resolution of disputes, save time and expense, and avoid multiplicity of
lawsuits and potentially contradictory judgments where a large number of
people are involved. It provides a platform for collective redress, ensuring
access to justice for groups who might otherwise lack the individual
resources to file separate suits.
Essential Elements of Representative Suit
For the application of Order 1 Rule 8 of the Civil Procedure Code
following elements must be fulfilled:
1. There Should Be Several Parties
The first condition for a representative suit is several parties. The word
“several parties” imply a group of persons and does not mean
innumerable persons.
In Hasanali vs Mansoorali (1947), the Privy Council held that a
representative suit on behalf of inhabitants of a village regarding village
property or on behalf of the members of the sect, caste, the community is
maintainable under this rule.
2. They Must Have the Same Interest
Community’s interest is the next essential, and it is the condition
precedent for bringing a representative suit. Hence the interest must be
common to all, or they must have a common grievance they seek to
redress. It is not necessary that the interest must have arisen from the
same transaction. The explanation clarifies that the person need not have
the same cause of action.
3. Permission or Direction by the Court Is Necessary
The suit does not become a representative suit until the court grants the
permission or the directions have been given by the court. The proper
course is that the permission of the court must be obtained before the suit
is filled.
4. Notice Must Be Given
All interested persons who would be bound by the decree shall be given
notice. Notice may be in person or public.
Procedural Aspects of Representative Suits
Filing the Suit
When filing a representative suit, the plaintiff must clearly mention in the
plaint that the suit is filed under Order I, Rule 8. The plaint must detail
the common interest of the group and the identity of the representative
plaintiff(s). In addition, a draft of the notice must be attached to the
application for court permission.
Substitution of Representatives
If the representative plaintiff fails to act diligently, the court has the
authority to substitute the representative with another person from the
same group. This ensures that the interests of the group are adequately
protected throughout the proceedings.
Withdrawal, Compromise, and Abandonment
There are strict rules regarding the withdrawal, abandonment,
and compromise of a representative suit. Under Order XXIII, Rule
1 and Order I, Rule 8(4), no part of the claim can be abandoned, and no
suit can be withdrawn or compromised without first notifying all
interested persons. This prevents a situation where a few individuals may
agree to a settlement that does not reflect the interests of the entire class.
Res Judicata
A judgement passed in a representative suit is binding on all persons who
are part of the represented class. This is reinforced by Explanation VI to
Section 11 of the CPC, which states that a decision in a representative suit
will operate as res judicata for all persons who share the same interest,
even if they were not actively involved in the suit.
Advantages of Representative Suits
Representative suits offer several advantages both for the judicial system
and for the litigants involved:
Efficiency
By consolidating multiple claims into a single suit, representative suits
help in reducing the burden on courts, allowing them to resolve a large
number of similar issues in one go. This avoids the need for multiple
hearings on the same matter.
Cost-Effective
Filing one suit on behalf of many saves considerable costs that would
otherwise be spent in initiating several individual suits. The expenses for
notices, legal fees, and other related costs are borne by the plaintiff.
Access to Justice
In situations where many individuals may not have the means or
resources to file suits independently, a representative suit provides an
opportunity for collective redress. It ensures that even those who might
otherwise be excluded from legal proceedings have a chance to be heard.

UNIT-III
1) Explain various modes of execution of decrees?
what is a decree
A decree is an official order issued by the court and it is only passed in
civil suits under sec 2(2) of the CPC. In a civil suit, a decree is the formal
expression of the decision made by a court that determines the rights and
obligations of the parties.
Essentials of a decree
A decree is a decision made by the judge in any civil suit. The elements
that are required to announce the law are as follows:
1. Adjudication
There must be a formal decision by the court based on legal proceedings.
In the case of Naik v. Hansubala Devi, the court stated that if there is no
adjudication of rights and adjudication of the dispute, then there is no
decree.
Suit
Any civil proceeding which is initiated while filing a plaint in a civil
court. if there is no civil suit filed, there is no decree passed in a suit.
3. Formal expression
A decree must be passed formally by the court, which must be followed
by a judgment.
4. Rights of the parties
The decree must clearly decide the legal rights and obligations of the
parties involved in the suit.
5. Conclusive and Final Decision
The decision must be final, not temporary or interim. It must settle the
matter in dispute at that stage.

Types of Decrees
The Code of Civil Procedure recognizes the following classes of decrees:
i. Preliminary Decree: A preliminary decree decides the rights and
liabilities of the parties, but further proceedings are needed before the
court can completely dispose of the case
ii. Final Decree:A final decree completely and conclusively determines
the rights of the parties and disposes of the suit.
iii. Partly preliminary and partly final decree: A decree may be partly
preliminary and partly final when one part of the case is fully decided,
while another part still requires further inquiry.

Modes of Executing a Decree

Sec 51 provides basic powers of court to enforce execution. it has a very
wide scope and gives option to decree holder of enforcing a decree by
several modes available under the code.
Delivery of property
(1) Movable property (sec 51(a), Rule 31)
Order 21, Rule 31 proivdes that
when the decree concerns movable property, it is enforced by seizing and
delivering it to the decree-holder or the purchaser (in case of a sale).
(2) Immovable property Rule 35-36
According to Rule 35, when the decree involves immovable property, it is
delivered to the decree-holder or their representative. If the judgment
debtor refuses to vacate, the court can remove them by force, if necessary.
Rule 36 says that, If a decree is for delivery of immovable property that is
occupied by a tenant or someone legally allowed to stay, and that
person does not have to vacate under the decree, then the Court will not
remove them.
Instead, the Court will:
-Affix a copy of the warrant on a visible part of the property, and
-Announce (proclaim) the substance of the decree near the property in the
usual local manner (like drum beating or any customary method).

Attachment and sale of property sec 51(b)

[Link] 51(b) says that, court may enforce the execution of any property by
-Attachmant and sale
-or by sale without attachment
[Link] power is subject to conditions and limitations as maybe prescribed
by rules
3. Sec 60 provides the list of property not liable to be attached
-wearing apparel
-cooking vessels
-land
-houses/ other buildings
-goods
-money
-bank notes
-cheque/bills of exchange
-promissory notes.

Arrest and Detention (sec 51(c)

The court can order the arrest and detention of the judgment debtor
under Section 55 if they fail to comply with the decree. The debtor is
arrested and placed in civil prison. The court can exercise discretion
under Order XXI Rule 37to allow the debtor to show cause why they
should not be detained.
Limitations: Women cannot be arrested for failure to pay money
(Section 56). Detention periods vary a maximum of three months for
decrees exceeding ₹1,000 and six weeks for decrees between ₹500 and
₹1,000 (Section 58).

Appointment of a receiver (sec 51(d)

Under order 40, a receiver may be appointed by the court to manage and
protect the property, collect rents and profits, and ensure proper execution
of the decree. The court determines the receiver’s remuneration and
duties, which may include executing documents and safeguarding
property.

Case Laws
State of Maharashtra v. Marwanjee P. Desai: This case held that the
court’s discretion to appoint a receiver is particularly useful in
cases where immediate property sale might not provide relief to
the decree-holder.
Bhavan Vaja v. Solanki Hanuji Khodaji Mansang: It was
established that courts have the authority to order arrest and
detention under Section 51, provided the judgment debtor has the
means but refuses to pay.
Kiran Devi v. Bihar State Sunni Wakf Board: The Supreme Court
clarified that property exempt from attachment under Section
60 cannot be attached or sold during execution.
2) Write a note on Admissions?
Admission is not explictly defined under CPC, According to Section17 of
IEA, admission refers to the voluntary acknowledgment of the existence
or truth of a specific fact. It encompasses statements, whether oral,
written, or contained in electronic form, that imply an inference about a
fact in issue or a relevant fact.
Statutory provisions relating to admissions
Admissions in the CPC 1908, primarily governed by order XII (Rule 1-
6), are procedural tools used to expedite litigation by acknowledging the
truth of certain facts or documents, thereby dispensing with the need of
their proof.
Rule 1 – Notice of Admission of Case
Rule 1 provides that a party may give notice in writing to the opposite
party calling upon them to admit the truth of any fact or document. Such
notice can be given after pleadings are completed.
The purpose of this rule is to identify admitted facts early and avoid
unnecessary proof during trial.
Case Law
Karam Kapahi v. Lal Chand Public Charitable Trust (2010)
The Supreme Court held that admissions under Order XII can be relied
upon at any stage of the proceedings, and courts should encourage
admissions to reduce delays in civil trials.

Rule 2 – Notice to Admit Documents

Under Rule 2, either party may serve a notice to admit
documents referred to in the pleadings or affidavits of the opposite party.
If the party refuses or neglects to admit such documents without
sufficient cause, the court may order costs against that party.
This rule ensures that genuine documents are not unnecessarily disputed.
Case Law
Union of India v. Ibrahim Uddin (2012)
The Supreme Court observed that unjustified denial of documents leads
to delay and increases litigation costs, and courts may penalize such
conduct under Order XII Rule 2.

Rule 2A-Deemed Admission Of Documents

If a party is served with a notice to admit documents and does not clearly
deny or respond, then those documents are treated as admitted by law.
This rule does not apply to persons under disability (like minors or
persons of unsound mind).
However, the court has discretion to still ask for proof of such documents
if it thinks it is necessary, and it must record reasons for doing so.
Further, if a party unreasonably refuses or ignores the notice to admit
documents, the court may order that party to pay costs as compensation to
the other side.
Case Law
Uttam Singh Duggal v. United Bank of India (2000)
The Supreme Court held that when a party makes a clear admission, the
court can rely on it to avoid unnecessary trial. The judgment emphasized
that provisions on admissions under Order XII should be used to
ensure speedy justice and prevent delay.

Rule 3 – Form of Notice

Rule 3 prescribes the manner and form in which a notice of admission
must be given. The notice must clearly specify the facts or
documents sought to be admitted and must comply with the procedural
requirements laid down in the CPC.
This rule ensures clarity and prevents confusion or ambiguity in
admissions.
Case Law
S. M. Asif v. Virender Kumar Bajaj (2015)
The Supreme Court emphasized that admissions must be clear and
specific; vague or ambiguous notices cannot be treated as valid
admissions under Order XII.

Rule 3A – Power of Court to Record Admissions

Rule 3A empowers the court itself to call upon any party, at any stage of
the suit, to admit any document or fact. The court may do so on its own
motion or on the application of any party.
The purpose of this rule is to identify undisputed facts or documents,
narrow down the issues in dispute, and speed up the trial.
Karam Kapahi v. Lal Chand Public Charitable Trust (2010)
The Supreme Court held that the court has wide powers under Order XII
to call upon parties to make admissions at any stage of the proceedings in
order to narrow down issues and ensure speedy disposal of the suit.

Rule 4 – Notice to Admit Facts

Any party to a suit, by written notice, ask the opposite party to admit
specific facts for the purpose of that suit. This notice must be given at
least 9 days before the hearing. If the other party fails or refuses to
admit those facts within the given time, the court may order that party
to pay the costs of proving those facts, even if that party later wins the
suit.
Any admission made under this rule is limited only to that particular
suit and cannot be used against the party in any other case. The court also
has the power to allow amendment or withdrawal of such admission if it
considers it just.
Badat & Co. v. East India Trading Co. (1964)
The Supreme Court held that failure to specifically deny facts amounts to
an admission, and the purpose of notice to admit facts is to avoid
unnecessary proof and delay in civil trials.

Rule 5-Form Of Admissions

A notice to admit facts must be given in the prescribed format of the
CPC. Similarly, admissions of facts must be made in Form No. 11 in
Appendix C.
These forms can be slightly modified if needed, depending on the facts
and circumstances of the case.

Rule 6-Judgment On Admission

Rule 6 empowers the court to pass a judgment based on admissions made
by a party. Admissions may be found in pleadings, documents, or even
correspondence. The court must ensure that the admission is clear,
unambiguous, and unconditional.
This rule enables speedy justice and avoids unnecessary trials.

3) Write a note on Affidavit?

What Is an Affidavit?
An affidavit is a written statement of facts made under oath before an
authorised person, such as a magistrate, notary, or oath commissioner. It
is primarily used to present factual information in civil proceedings
without the necessity of oral evidence.
The key characteristics of an affidavit are:
Written Statement: The affidavit must be in writing, signed by the
deponent (the person making the statement).
Sworn under Oath: The deponent swears or affirms before an authorised
officer (e.g., a magistrate or notary) that the contents are true.
Fact-Based: An affidavit must state facts and should not include opinions,
arguments, or conclusions.
First-Person Narrative: The affidavit must be written in the first person,
as it reflects the personal knowledge of the deponent.
In civil litigation, affidavits serve as evidence. However, courts
exercise caution in relying on affidavits and often require additional
verification and cross-examination to ensure their authenticity.
The Importance of Affidavits in Civil Litigation
Affidavits are a vital tool for presenting facts in civil cases. They have
several important functions:
Efficiency: By enabling parties to present written statements instead of
oral testimony, affidavits streamline legal proceedings, saving time and
resources.
Convenience: Affidavits allow the deponent to submit facts without
being physically present in court, reducing delays in the legal process.
Reliability: Affidavits, being sworn under oath, carry the solemnity of a
legal promise, which enhances the reliability of the information presented.
Given their importance, it is crucial that affidavits are drafted with
accuracy and care, ensuring that they adhere to the legal requirements set
out in Order XIX.
Order XIX of the CPC: The Legal Framework for Affidavits
Order XIX of the Civil Procedure Code, 1908, deals specifically with
affidavits in the context of civil proceedings. It prescribes the rules that
must be followed for affidavits to be valid, and it provides the framework
for their use in court.
Rule 1: Power to Prove Facts by Affidavit
According to Rule 1, the court has the discretion to allow a fact or facts to
be proved by affidavit. This means that, instead of calling witnesses to
testify in person, the court may allow parties to prove certain facts
through written affidavits.
However, the court may only order the use of affidavits for specific
facts that do not require oral examination for their verification. If either
party desires the production of a witness for cross-examination, and the
witness is available, the court may refuse to accept the affidavit as
evidence, instead insisting on the witness’s presence.
Sudha Devi v. M.P. Narayanan (1988)
The Court held that affidavits cannot automatically replace oral evidence.
If facts are disputed and need testing, cross-examination is necessary.

Rule 2: Attendance for Cross-Examination

Rule 2, allows for cross-examination of the deponent. The court may
order the deponent’s presence in court for cross-examination if either
party requests it.
Sub-rule (1) allows evidence to be given through an affidavit, but the
Court can ask the person who filed it to come for cross-examination if
requested by the other party.
Sub-rule (2) says that this person must appear in Court, unless the Court
excuses them. This makes sure that cross-examination, an important part
of the court process, is not avoided by using affidavits.
A.K.K. Nambiar v. Union of India (1969)
The Supreme Court emphasized that when evidence is given by affidavit,
the opposite party has a right to seek cross-examination.
The Court may order the deponent to appear to ensure fairness.

Rule 3: Contents and Costs of Affidavits

Rule 3, governs the content of affidavits and the costs associated with
their filing. The primary aspects of this rule are as follows:
Content of Affidavit:
-An affidavit should include only those facts that the person making it
personally knows and can swear to.
-In interlocutory applications (applications made during a case), the Court
may allow facts based on information or belief, but the deponent must
clearly explain the source or reason for that belief.
-The deponent should not include hearsay facts or unnecessary
documents, unless the Court specifically permits it.
Costs:
If an affidavit unnecessarily includes irrelevant or argumentative content,
the costs of filing such an affidavit shall be borne by the party submitting
it (unless the court directs otherwise).
Padmabati Dasi v. Rasik Lal Dhar (1910)
The Calcutta High Court held that affidavits containing hearsay,
arguments, or irrelevant facts should be rejected.

Essentials features of an affidavit

The following are the essential features of an affidavit
1. An affidavit must be in writing
2. It needs to be a declaration by the deponent
3. The facts mentioned in an affidavit must be true to the best knowledge
of the deponent.
4. In order to make it valid, it needs to be sworn in under oath before an
authorised officer or a magistrate.
5. An affidavit is never made on behalf of some other person.

when are affidavits used

Affidavits are used when there is a need to take an oath of any kind. some
common use of affidavits are as follows:
1. Divorce cases
2. Property disputes
3. disputes about debt
4. Name change verification
5. Residential address verification
6. Firstborn child certificate
7. Marriage registration

Filing False Affidavits: Legal Consequences

Filing a false affidavit is a serious offence and is punishable under the
law. False affidavits can have severe legal consequences for the deponent,
including criminal charges for perjury and contempt of court.
1. Perjury under IPC: Filing a false affidavit amounts to perjury, which is
an offence under Sections 191 and 193 of the Indian Penal Code (IPC).
Perjury is punishable with imprisonment or fines, depending on the
severity of the offence.
2. Contempt of Court: If a false affidavit is filed in the course of a
proceeding where the court has specifically ordered the submission of an
affidavit, the deponent may face charges of contempt of court under
Section 2(c) of the Contempt of Courts Act, 1971. Contempt of court is
punishable with up to six months’ imprisonment.
3. Private Complaints: In addition to criminal proceedings, the affected
party may file a private complaint before a magistrate under Section 200
of the IPC, seeking further action for the false affidavit.
It is crucial for legal practitioners and their clients to understand the
gravity of filing a false affidavit. The repercussions extend beyond the
immediate case and can lead to criminal charges that damage reputations
and careers.

4) Define Decree and Order? difference between decree & order?

DECREE
what is a decree
A decree is an official order issued by the court and it is only passed in
civil suits under sec 2(2) of the CPC. In a civil suit, a decree is the formal
expression of the decision made by a court that determines the rights and
obligations of the parties.
Essentials of a decree
A decree is a decision made by the judge in any civil suit. The elements
that are required to announce the law are as follows:
1. Adjudication
There must be a formal decision by the court based on legal proceedings.
In the case of Naik v. Hansubala Devi, the court stated that if there is no
adjudication of rights and adjudication of the dispute, then there is no
decree.
Suit
Any civil proceeding which is initiated while filing a plaint in a civil
court. if there is no civil suit filed, there is no decree passed in a suit.
Formal expression
A decree must be passed formally by the court, which must be followed
by a judgment.
Rights of the parties
The decree must clearly decide the legal rights and obligations of the
parties involved in the suit.
Conclusive and Final Decision
The decision must be final, not temporary or interim. It must settle the
matter in dispute at that stage.
Types of Decrees
The Code of Civil Procedure recognizes the following classes of decrees:
i. Preliminary Decree: A preliminary decree decides the rights and
liabilities of the parties, but further proceedings are needed before the
court can completely dispose of the case
ii. Final Decree:A final decree completely and conclusively determines
the rights of the parties and disposes of the suit.
iii. Partly preliminary and partly final decree: A decree may be partly
preliminary and partly final when one part of the case is fully decided,
while another part still requires further inquiry.

ORDER
Section 2(14) of the CPC defines Order as:
“Order” means the formal expression of any decision of a civil court
which is not a decree.
Essentials of an order
1. Decision of a Civil Court
An order must be passed by a civil court that has legal authority under the
[Link] by tribunals, revenue officers, or administrative
authorities are not orders under CPC unless they are treated as civil courts
by law.
2. Formal Expression of the Decision
The decision must be formally recorded in writing. Oral directions or
casual observations made by the judge do not amount to an order.
3. Must Not Be a Decree
This is the most important element. An order does not finally decide the
rights of the parties in respect of the whole suit. If the decision
conclusively determines the rights of parties, it becomes a decree, not an
order.
4. May Be Interlocutory or Final in Nature
An order can be:
Interlocutory – passed during the pendency of the suit to regulate
procedure
Final – decides a specific issue but not the entire suit
5. Passed in the Course of a Suit or Proceeding
Orders are usually passed at different stages of a civil case:
Before trial
During trial
After judgment (in execution proceedings)
Case law
In Madhu Limaye v. State of Maharashtra, the Supreme Court
explained that an order is a formal expression of a court’s decision which
does not finally decide the rights of parties but affects the procedure or
progress of the case.
Examples of Orders
Order granting or refusing temporary injunction
Order allowing or rejecting amendment of pleadings
Order granting adjournment
Order directing production of documents
Difference between order & decree

5) Write a note on Adjournment?

What is Adjournment in CPC?
Adjournment in the Code of Civil Procedure is the postponement of a
court hearing or trial to a later date. It is a procedural tool that allows the
court to grant time to the parties for various reasons, such as the need for
additional preparation, the absence of a key witness or unforeseen
circumstances.
The provisions for adjournment are detailed in Order XVII (17) of the
CPC, which outlines the conditions under which adjournments can be
granted, the procedure to be followed and the implications of such
adjournments. The CPC also imposes restrictions on the number of
adjournments to prevent abuse and ensure the efficient conduct of legal
proceedings.
Legal Provisions of Adjournment in CPC
Adjournment in the context of the CPC refers to the postponement of a
hearing or trial to a later date. The provisions related to adjournment are
primarily contained in Order XVII of the CPC.
The provision on adjournment has been extracted for ease of reference:
The order outlines the circumstances under which a court may grant an
adjournment, the procedure to be followed and the consequences of
adjournment.
1. Granting of Adjournment in CPC
According to Order XVII, Rule 1, the court has the discretion to grant
time to the parties or any of them at any stage of the suit, provided
sufficient cause is shown. The reasons for the adjournment must be
recorded in writing.
However, the rule also imposes a restriction that no party shall be granted
more than three adjournments during the hearing of the suit. This
limitation is aimed at preventing the abuse of the adjournment process
and ensuring the timely resolution of disputes.
2. Costs of Adjournment
The court is required to fix a day for the further hearing of the suit and
may order the party seeking the adjournment to bear the costs occasioned
by the adjournment. In some cases, the court may impose higher costs as
deemed fit. This provision serves as a deterrent against frivolous requests
for adjournment and encourages parties to proceed with the case without
unnecessary delays.
3. Conditions for Adjournment
Order XVII, Rule 1 also lays down certain conditions under which
adjournments are to be granted:
(a) Once the hearing has commenced, it should continue from day to day
until all the witnesses in attendance have been examined unless there are
exceptional reasons for an adjournment.
(b) Adjournments should not be granted at the request of a party unless
the circumstances are beyond their control.
(c) The engagement of a party’s pleader in another court is not a valid
ground for adjournment.
(d) If a pleader’s illness or inability to conduct the case is cited as a
reason for adjournment, the court should ensure that the party couldn’t
have engaged another pleader in time.
(e) If a witness is present but a party or their pleader is not ready to
examine or cross-examine them, the court may record the witness’s
statement and make appropriate orders.
4. Procedure if Parties Fail to Appear
Rule 2 deals with the situation where parties or any of them fail to appear
on the adjourned date. The court may proceed to dispose of the suit in one
of the modes directed by Order IX or make any other suitable order. If
substantial evidence has already been recorded and a party fails to appear,
the court may proceed as if the party were present.
5. Court’s Discretion to Proceed
According to Rule 3, if a party fails to produce evidence, ensure the
attendance of witnesses or perform any necessary act for the suit’s
progress, the court may decide the suit forthwith if the parties are present.
If the parties or any of them are absent, the court may proceed under Rule
2.
Implications of Adjournment in Legal Proceedings
The provisions related to adjournment in the CPC have several
implications for the legal proceedings:
Ensuring Justice: Adjournments allow parties to prepare their case
adequately and present their evidence effectively, thus ensuring that
justice is served.
Preventing Abuse: The restrictions on the number of adjournments and
the imposition of costs act as deterrents against the abuse of the
adjournment process, which can lead to unnecessary delays and increased
costs.
Flexibility: The court’s discretion to grant adjournments provides
flexibility in dealing with unforeseen circumstances that may arise during
the course of a trial.
Efficiency: By limiting the number of adjournments and encouraging
continuous hearings, the CPC aims to enhance the efficiency of the legal
proceedings and reduce the backlog of cases.
Case Laws
Salem Advocate Bar Association v. Union of India (2005)
The Supreme Court held that adjournments should be rare and only
for genuine reasons. Courts must strictly follow Order XVII CPC to avoid
unnecessary delays in civil cases.
Ramrameshwari Devi v. Nirmala Devi (2011)
The Court observed that frequent adjournments are a major cause
of delay in justice. Judges should discourage adjournments and
impose realistic costs when parties seek unnecessary postponements.
Manohar Singh v. D.S. Sharma (2010)
The Supreme Court ruled that adjournments cannot be granted as a matter
of right. A party must show a sufficient cause; otherwise, the court may
refuse the request.

6) what is issues? kinds of issues

There are two types of issues
1. Issues of Fact
What does it mean?
An issue of fact arises when the dispute is about what actually happened
in real life. One party states a fact, and the other party denies or disputes
that fact.
Nature of issues of fact
They relate to events, actions, conduct, or circumstances
They are based on evidence
The court must find out the truth of facts
How are they proved?
Issues of fact are decided by:
Oral evidence (witness testimony)
Documentary evidence (contracts, receipts, records, etc.)
Affidavits and admissions
Examples
Whether the defendant executed the sale deed dated 10-01-2020?
Whether the plaintiff paid the consideration amount?
Whether the defendant was in possession of the property?
Here, the court must examine evidence to determine which party is telling
the truth.
2. Issues of Law
What does it mean?
An issue of law arises when the dispute is not about facts, but about
the application or interpretation of law to those facts.
Nature of issues of law
Concerned with legal rights, liabilities, or procedures
Based on statutory provisions and judicial precedents
Often decided without recording evidence
How are they decided?
Issues of law are decided by:
Interpreting statutes (like CPC, Limitation Act, Contract Act)
Applying legal principles
Referring to case laws
Examples
Whether the suit is barred by limitation?
Whether the court has territorial or pecuniary jurisdiction?
Whether the plaint is liable to be rejected under Order VII Rule 11 CPC?
In these cases, the court decides the issue by law, not by evidence.

Importance of issues
To decide a case properly the framing of the issue should be appropriate.
Framing of issue helps the parties to lead necessary evidence in support
of the claims and the reliefs. It will give the other party to confront or
construct the case to bring home his defence. Issues are the lamp post
which enlightens the parties, the trial court and the appellate court as to
what the controversy is, what the evidence must be, and where the truth
in the dispute lies.
When issues are framed?:-
According to rule 1, issues are framed and recorded by the court at the
first hearing after reading the plaint, written statement, examining and
hearing of parties and their pleaders.
In P. Kashinath Yadav Vs. Mangilal Choudary, 2022 (1) ALT 45, the
Court observed that in the interest of efficiency and expeditious disposal
of cases, members of the Bar should file draft issues prior to the formal
framing of issues by the court. This practice would aid the trial courts in
understanding the contours of the dispute early on, streamline
proceedings, and ultimately save judicial time.
What materials are required for framing of issues?:-
Issues may be framed by the Court from all or any of the following
materials—
Allegations made on oath by the parties, or by any persons present on
their behalf, or made by the pleaders of such parties;
Allegations made in the pleadings or in answers to interrogatories
delivered in the suit;
The contents of the documents produced by either party.
Steps in Framing Issues
1. Initial Hearing: The court examines the plaint and written statements.
It may conduct an examination under Rule 2 of Order X and hear the
parties to identify material points of dispute.
2. Formation of Issues: The court formulates and records the critical
issues for adjudication.
3. Examination of Witnesses or Documents: The court may defer
framing issues to examine witnesses or inspect documents when
necessary.
4. Amendment and Striking Out of Issues: The court may amend
existing issues or frame additional ones, striking out improperly framed
issues when required.
5. Agreed Issues: Parties may identify agreed-upon factual or legal
questions. Upon verifying the sincerity of such agreements, the court may
record and adjudicate those issues.

7) Explain the provision of CPC with regard to attachment of

property before judgment?
An attachment before judgment is to enable the plaintiff to realize the
amount of the decree, supposing a decree that eventually would be made
from the defendant’s property. This has been provided in the Order 38
rule 5 of the CPC,1908. The scope and object of order 38 rule 5 of the
CPC and the rules followed thereon are merely to protect a plaintiff
against loss arising from the defendant making away with his property
pending suit. An attachment before judgment is in the nature of an
interlocutory order and such interlocutory orders to have been passed in
exercise of the court’s ancillary powers as discussed in the case of
Shivaraya and others V. Sharnappa and others.
Order 38 Rule 5 of CPC
If, at any stage of a case, the court believes that the defendant is trying to
avoid paying a future decree, it can step in to protect the plaintiff’s
interest. This usually happens when the court feels that the defendant
is about to sell, transfer, or move their property to delay or block the
execution of the court’s order.
If the court is satisfied (based on an affidavit or other evidence) that the
defendant:
-is about to sell or dispose of their property, or
-is about to remove the property outside the court’s jurisdiction,
then the court may order the defendant to:
-give security (a guarantee) for producing that property or its value when
required, or
-appear before the court and explain why such security should not be
given.
Normally, the plaintiff must clearly mention which property should be
attached and its approximate value. To prevent misuse or delay, the court
may also temporarily attach the property until the defendant provides
security or the issue is decided.
OBJECTIVE AND SCOPE OF ORDER 38 RULE 5 CPC
The primary objective of Order 38 Rule 5 is to prevent any defendant
from defeating the realization of the decree that may ultimately be passed
in favor of the plaintiff. This is achieved by restraining the defendant
from disposing of or removing their property with the intent to obstruct
or delay the execution of any decree that may be passed against them.
The Supreme Court, in Raman Tech. & Process Engg. Co. & Anr. vs.
Solanki Traders, emphasized that the power under this rule is drastic and
extraordinary, and should not be exercised mechanically or merely for
the asking.
ESSENTIALS FOR INVOCATION OF ORDER 38 RULE 5
For a court to exercise its power under Order 38 Rule 5, certain
conditions must be satisfied:
Prima Facie Case:
The plaintiff must establish a bona fide and valid claim. Mere allegations
without substantial evidence are insufficient. In Raman Tech. & Process
Engg. Co. & Anr. vs. Solanki Traders, the Supreme Court held that the
court should be satisfied that there is a reasonable chance of a decree
being passed in the suit against the defendant.
Intent to Obstruct or Delay:
There must be credible evidence indicating that the defendant intends to
obstruct or delay the execution of any decree that may be passed against
them by:
 Disposing of the whole or part of their property.
Removing the whole or part of their property from the local limits of the
court’s jurisdiction.
The Calcutta High Court, in Premraj Mundra vs. Md. Maneck Gazi, laid
down guiding principles, stating that mere allegations are not sufficient;
particulars must be stated, and the evidence should not be vague
PROCEDURE FOR ATTACHMENT BEFORE JUDGMENT
The procedure under Order 38 Rule 5 involves the following steps:
Application by Plaintiff:
The plaintiff must file an application supported by an affidavit detailing
the grounds for attachment, demonstrating the defendant’s intent to
obstruct or delay the execution of the decree.
Court’s Satisfaction:
The court must be satisfied, based on the affidavit or other evidence, that
the defendant is about to dispose of or remove their property with the
intent to obstruct or delay the execution of any decree that may be passed
against them.
Show Cause Notice:
The court may issue a notice to the defendant to show cause why they
should not furnish security for the plaintiff’s claim.
Conditional Attachment:
If the court believes that the delay in issuing notice may defeat the
purpose of the attachment, it may order a conditional attachment of the
defendant’s property.
Furnishing Security:
If the defendant fails to show cause or furnish the required security, the
court may confirm the attachment to the extent necessary to satisfy the
decree.
EXCEPTIONS AND LIMITATIONS
Certain properties are exempt from attachment before judgment:
Agricultural Produce:
Order 38 Rule 12 specifies that the plaintiff cannot apply for the
attachment of any agricultural produce in the possession of an
agriculturist, nor can the court order such attachment.
Third-Party Rights:
Attachment before judgment does not affect the rights of persons not
parties to the suit, nor does it bar any person holding a decree against the
defendant from applying for the sale of the property under attachment in
execution of such decree.

8) state the procedure to be followed in the event of death or

insolvency of either party to the suit?
As a basic rule, court proceedings should happen in the presence of the
parties involved, as far as possible. This ensures fairness and gives both
sides a chance to be heard. The rules about when parties must appear and
what happens if they do not appear are explained in Order IX of the Code
of Civil Procedure.
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 CPC outlines various rules and provisions regarding appearances
and non-appearances of parties.
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.
If the defendant does not make an appearance, an ex-parte order will be
issued.
Non-Appearance of Both Parties to the Suit
If both the plaintiff and the defendant fail to appear in court on the date
fixed for hearing, the court has the power to dismiss the suit under Order
IX Rule 3 of the CPC. This means the case is closed for the time being
because neither party was present to proceed with it. However, such a
dismissal does not permanently end the matter. As provided under Order
IX Rule 4, the plaintiff is allowed to file a fresh suit on the same cause of
action, since the dismissal is not decided on merits.
In addition to this, the plaintiff also has the option to apply to the court
for restoration of the suit. If the plaintiff can clearly show that there was
a sufficient and genuine reason for not appearing on the hearing date, the
court may accept the explanation. Once satisfied, the court has
the discretion to cancel the dismissal order and fix a new date for hearing,
allowing the suit to continue.
Appearance of the Plaintiff
If only the plaintiff appears in court and the defendant does not, the court
has the power to pass an ex-parte order against the defendant. However,
before doing so, the court must first be satisfied that the summons was
properly served on the defendant and that the defendant had a fair chance
to appear.
Only after confirming that the summons was duly served can the court
proceed to hear the plaintiff’s case and may pass an ex-parte decree in
favour of the plaintiff. This rule applies only at the first hearing of the suit.
It does not apply to later hearings, as clarified by the Supreme Court
in Sangram Singh v. Election Tribunal, which held that ex-parte
proceedings are meant to ensure fairness, not to punish a party for every
absence.
Even when the court passes an ex-parte order because the defendant is
absent, it must still act fairly and carefully. The court cannot
automatically accept everything the plaintiff says. It has a duty
to examine the truth of the plaintiff’s claims and check whether the relief
asked for is justified.
In Maya Devi v. Lalta Prasad, the Supreme Court clearly stated
that justice must be ensured even in the absence of the defendant, and the
court must satisfy itself about the correctness of the plaintiff’s case before
granting any relief.
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 defendant based on that admission. For the remaining
aspects of the claim, the suit will be dismissed.
Dismissing the plaintiff’s suit without affording them a hearing is a
significant matter and should only be employed if the court is convinced
that such dismissal is necessary in the interest of justice, as established by
Beaumont, C.J. in the case of Shamdasani v. Central Bank of India.
Does the same provision apply in the case of the plaintiff’s non-
appearance due to their demise?
In situations where the plaintiff fails to appear due to their demise, the
court lacks the authority to dismiss the suit. Even if such an order is
issued, it would be considered void, as determined in the case of P.M.M.
Pillayathiri Amma v. K. Lakshi Amma.

UNIT-IV

1) Define inter-pleader suit? Explain the conditions and procedure

relating to an inter pleader suit.
In an inter-pleader suit, the actual dispute isn’t between the plaintiff and
the defendant but between the defendant who inter-pleads against each
other. It is unlike an ordinary suit.
‘To inter-plead‘ means to litigate with each other to settle a point
concerning a third party.
According to section 88 of the Civil Procedure Code, two or more
persons claiming adversely to each other the same debt, sum of money, or
other property (movable or immovable) from a person who does not
claim any interest therein except the charges and costs incurred by him,
and such person is ready to pay or deliver the same to the rightful
claimant may file an inter-pleader suit.
For instance, X is in possession of some goods which is claimed by Y as
well as Z. X does not hold any interest in the goods and is willing to
deliver the goods to the rightful owner of the goods. X may institute an
inter-pleader suit. Now, the court will decide the rightful owner between
Y and Z.
The Object of Filing Inter-pleader Suit
An inter-pleader suit in CPC is typically filed with the following
objectives:
Adjudication of Claims: The suit aims to adjudicate the competing
claims made by the defendants, thereby determining the rightful claimant.
Property Distribution: In cases where a person passes away without
transferring property to other family members, a family member may
need to claim the property or money from a bank. The bank, in turn, may
initiate an inter-pleader suit to decide who should receive the property.
This type of suit is filed in the court where the doctrine of res judicata
applies.
Conditions for Instituting an Inter-pleader Suit
Following conditions must be satisfied before instituting an inter-pleader
suit:
There must be some debt sum of money or other property movable or
immovable in dispute.
There must be two or more persons claiming it against each other.
The person from whom such money or property is being claimed must
not be claiming an interest therein other than the charges and costs.
Such a third person must be ready and willing to pay or deliver it to the
rightful claimant.
There must be no suit pending wherein the rights of the rival claimant can
be properly adjudicated.
Principles of an Inter-pleader Suit
Neutrality of the Plaintiff
The plaintiff must be completely neutral and should not support any
claimant.
Protection from Multiple Liability
The main purpose is to protect the plaintiff from being sued multiple
times for the same subject matter.
Court Decides the True Owner
The court determines which defendant has the lawful right to the money
or property.
Single Subject Matter
The dispute must relate to the same property or money, not different
claims.
Plaintiff Seeks Discharge
Once the property or money is handed over as directed by the court, the
plaintiff seeks to be discharged from liability.
Who May Institute an Interpleader Suit?
In National Insurance Co. Ltd. vs Dhirendra Nath Banerjee And Anr
(1937), it was observed that a person who has no interest in any debt, the
sum of money or property except the charges or cost and such person is
willingly ready to pay or deliver the property to the rightful claimant may
file an inter-pleader suit.
Procedure for Interpleader Suit
The procedure to file an inter-pleader suit has been laid out in Order 35 of
the Civil Procedure Code. The following additional facts must be stated
in the plaint of an inter-pleader suit:
The plaintiff claims no interest in the subject matter in dispute other than
the charges and cost.
The claims have been made by the defendants severally.
There is no collusion between the plaintiff and any of the defendants.
 At the first hearing, the court may declare the plaintiff discharged from
all liability, award him the cost and dismiss him from the suit. And based
on available evidence, the court may adjudicate the matter. In case of lack
of evidence, the court may frame issues and try them by making one of
the claimants, the plaintiff, in lieu of or in addition to the original plaintiff
and shall proceed in the suit in an ordinary manner.
It was held in Jagganath vs Tulka Hera (1908) that a suit does not become
an inter-pleader suit simply because the plaintiff requires the defendants
to inter-plead with each other on one of the plaint’s prayers
The Person Who May Not Institute Inter-pleader Suit
According to Rule 5 of Order 35 of the Civil Procedure Code:
An agent cannot sue his principal,
A tenant cannot sue his landlord,
for the purpose of compelling them to inter-plead.
An exception to this general rule is that where the claim is made
through the principal or landlord, the agent or tenant may file an inter-
pleader suit against their principal or landlord, respectively.
Charge for Plaintiff’s Cost
The court may provide for the cost of the original plaintiff by giving him
a charge on the things claimed or in some other effectual way.

Cases on Interpleader Suit

Neeraj Sharma v. The District Sangrur Khadi Gram
The Punjab and Haryana High Court held that agents and tenants cannot
file inter-pleader suits against their principals or landlords under Order 35
Rule 5 CPC. A tenant can use an inter-pleader suit only when the dispute
is between parties claiming through the landlord. If a third party claims
rights in the property independently of the landlord, such a claim is not
maintainable under an inter-pleader suit.
Mohan Lal v. Benoy Krishna Mukherjee
The court explained that an inter-pleader suit can be filed only when the
plaintiff has no personal interest in the subject matter and only wants the
court to decide who among the defendants is entitled to it.
Kasturi Lal v. Hari Lal
It was held that an inter-pleader suit is not maintainable if the plaintiff
claims any independent right or interest in the disputed property.

2) Define temporary injunction? explain the principles and grounds

to grant a temporary injunction?
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)”.
The rules for temporary injunctions are found in the Civil Procedure
Code of 1908 and here’s what they say:
Section 94 of the law is about preventing interference with justice. Part (c)
deals with giving out temporary injunctions and has rules for making sure
people follow them, like putting someone in civil prison or selling their
property to make them comply.
Section 95 allows the court to consider giving money to the defendant if
the plaintiff’s claim gets dismissed.
Order 39 of the Civil Procedure Code (CPC) has a bunch of rules about
temporary injunctions.
Order 39 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.
Order 39 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 39 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 39 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 39 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 39 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 39 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.
Procedure for Grant of Temporary Injunction
Application by Plaintiff/Defendant: The party seeking injunction must
file an application under Order XXXIX Rules 1 and 2 along with an
affidavit supporting the grounds.
Notice to Opposite Party: As per Rule 3, notice must be given to the
opposite party before granting injunction, unless delay defeats the very
object of granting it.
Ex Parte Injunction: If immediate relief is required, the court may grant
injunction without hearing the other party, but reasons must be recorded.
Time-bound Disposal: Under Rule 3A, the court should endeavor to
dispose of the injunction application within 30 days from the date of grant.
Order: The court may grant or refuse the injunction by a reasoned order.

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
A prima facie case means that there is a genuine and serious issue in the
lawsuit that needs to be examined by the court before the final decision.
For granting a temporary injunction under the CPC, the court must see
that the claim is not weak or baseless and that there is a reasonable
chance that the plaintiff (or defendant) may succeed.
It does not mean that the party must prove the case fully or show that
they will definitely win at trial. It only means that the case has enough
merit to deserve protection until the dispute is finally decided.
Irreparable Loss
Irreparable loss means harm or damage that cannot be properly
compensated with money or corrected later by the court. If such loss
happens before the court decides the case, it may cause serious
injustice to the affected party.
Not every loss is irreparable. For example, emotional or sentimental
value alone is usually not enough. But if the damage
is permanent, continuous, or keeps happening again and again, and
money cannot reasonably fix it, then it is considered irreparable loss.
Also, just because a loss is hard to calculate does not automatically
make it irreparable. The key point is whether the harm can be adequately
remedied by law—if not, it may justify a temporary injunction.
Balance of Convenience
Balance of convenience means that the court compares the hardship or
inconvenience that both parties may suffer. The court checks who will be
more affected—the person asking for the injunction if it is refused, or the
other party if it is granted.
If the harm caused by not granting the injunction is greater than the harm
caused by granting it, then the balance of convenience is said to be in
favour of granting the injunction.
These three requirements serve as important criteria for deciding whether
to grant a temporary injunction in legal cases.
Mandati Ranganna v. T. Ramachandra
The Supreme Court held that while deciding a temporary injunction under
the CPC, the court must look beyond the three basic tests—prima facie
case, balance of convenience, and irreparable loss. Since an injunction is
an equitable remedy, the conduct of the parties is also important.
If a person remains silent for a long time and allows the other party to
deal with the property, they may not get an injunction. The court will not
grant an injunction just because the property is valuable; it aims to ensure
fairness and protect the interests of all parties.

3) write a note on Appeal?

Meaning of Appeal in CPC
The concept of ‘appeal’ is not explicitly defined in the CPC (Code of
Civil Procedure). According to the Black’s Law Dictionary, ‘appeal’ is
the formal complaint made to a higher court to rectify an injustice or error
committed by a lower court.
The Superior Court, to which the appeal is made, reviews and retrials
the case, effectively transferring it from a court of lower jurisdiction to
one with greater authority.
Essentials of Appeals
An appeal under CPC is a legal process in which a higher forum reviews
the decision of a lower forum on both legal and factual grounds. The
higher forum has the jurisdiction to either uphold, reverse, modify the
decision, or send the case back to the lower forum for a fresh decision,
following the directions given by the higher forum. The three essential
elements of appealing cases can be summarized as follows:
A decree issued by a judicial or administrative authority.
An aggrieved individual who may not have been a party to the original
proceeding.
A reviewing body was established specifically to handle such appeals in
CPC.
Right to Appeal
The right to appeal is both statutory and substantive. It is a statutory right
because it must be specifically granted by a statute and establish the
appellate machinery. Unlike the inherent right to institute a lawsuit, the
right to appeal is provided by law. Additionally, the right to appeal is
substantive, meaning that it must be exercised prospectively unless the
statute states otherwise.
However, parties may waive this right through an agreement, and
accepting benefits under a decree may stop a party from challenging its
validity. It’s important to note that the right to appeal is determined based
on the law as it exists at the time of the original suit.
One Right to Appeal in CPC
There is usually one right to appeal, as stated in Section 96 of the CPC.
This allows an aggrieved party to appeal a decree passed by a court
exercising its original jurisdiction to a higher authority designated for this
purpose. Exceptions to this single right of appeal are outlined in Sections
97, 98, and 102 of the CPC, which specify certain conditions under which
no further appeal is permitted.
No Right to Appeal under CPC
In general, a person who is not a party to the suit does not have the right
to appeal unless they obtain special leave from the Court. The crucial
factor to consider when determining one’s right to appeal is whether the
person is adversely affected by the decision or the suit, and this is a
matter of fact that must be evaluated on a case-by-case basis.
Who Can File an Appeal?
The right to appeal in CPC is available to specific categories of
individuals:
Any party to the original proceeding or their legal representatives.
Any person claiming under such a party or a transferee of interests from
such a party.
Any person appointed by the Court as the legal guardian of a minor.
Any other aggrieved person, with the Court’s permission.
The general rule is that only a party to a suit who has been adversely
affected by the decree or their representatives can file an appeal in CPC.
However, with the Court’s leave, a person not originally involved in the
case may also appeal if they are bound by the decree, aggrieved by it, or
maliciously influenced by it.
Section 96(2) outlines remedies available to a defendant against whom an
ex parte order is passed. They can either file an appeal under CPC against
the decree or file a motion to set aside the ex parte decree. These
remedies can be pursued concurrently and do not hinder each other.
However, Section 96(3) specifies that a consent decree cannot be
appealed against. This provision is based on the principle of estoppel,
assuming that parties to a suit may, through a lawful agreement,
settlement, or behaviour, relinquish their right to appeal. In a consent
decree, both parties have willingly given up their right to appeal in CPC
as part of the agreement.
Who Cannot File an Appeal in CPC?
To summarise the situations in which parties may not have the right to
appeal:
A party that has explicitly and unambiguously given up its right to appeal
as per an arrangement or agreement.
A party that has received benefits from a decree and has implicitly
accepted its terms.
A consent decree binds parties, as they have willingly agreed to its terms.
Parties whose evidence or compromises were not presented or expressed
during the dispute.
Parties involved in trivial instances where the matter is not significant
enough to warrant an appeal in CPC.
Characteristics of An Appeal
The right to appeal is not automatically assumed and must be explicitly
provided for in the statute. It differs from the rights associated with filing
cases, as it is a substantive right rather than a procedural one. These rights
arise from the moment the suit is instituted. Once granted, these
privileges cannot be invalidated unless a statute expressly or implicitly
allows for such invalidation. The appellate authority has the final and
conclusive discretion in matters related to appeals.

4) Write a note on commission?

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).
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:
A panel consisting of no more than four commissioners, including young
persons and a lady lawyer, is formed by the court for recording evidence.
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.
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
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)
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.

UNIT-IV

1) State the procedure for instituting a suit by an indigent person?

Introduction
Order XXXIII of the CPC was introduced to uphold the principle of equal
access to justice by enabling economically disadvantaged persons to
approach the judiciary for redressal of their grievances. This provision
embodies the spirit of Article 14 (Right to Equality) and Article
39A (Free Legal Aid and Equal Justice) of the Constitution of India.
Who is an Indigent Person?
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.
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:
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.
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 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.
Appeals by Indigent Persons
Under Order XLIV( 44) 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.
Landmark Cases
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.
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.
2) Define reference? Under what circumstances a reference can be
made to High Court?
Definition of reference
A reference under the CPC simply means that when a lower court is
dealing with a civil case and becomes unsure about a legal question, it
asks the High Court for guidance. This situation can arise during a suit,
an appeal, or execution proceedings. In simple terms, instead of guessing
the correct legal position, the lower court seeks the High Court’s opinion
and then decides the case according to that guidance.
Section 113 of the Civil Procedure Code
Section 113 of the Civil Procedure Code allows a lower court to send a
question to the High Court when it is unsure about a point of law. If the
judge handling the case has a genuine doubt about how the law should be
interpreted or applied, the court can ask the High Court for its opinion
before deciding the case. The parties involved in the suit cannot demand
such a reference; only the court itself can make this request. This
provision applies only to legal questions, not to questions of fact.
Conditions for Reference under CPC
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 pending before the court when the
reference is made, and no appeal against that court’s order or decree
should be pending elsewhere.
 The doubt must relate to the validity of a legal provision and must
arise while the case is being heard.
 The court should still be dealing with the case at the time when the
doubt about the law arises.
 While making the reference, the court may stay the proceedings or
pass a conditional order, and after receiving the High Court’s opinion,
it can then give the final order or decree.
Who Can Apply for Reference under CPC?
A reference under the CPC can be made only by a civil court. The court
may do this either when one of the parties requests it or on its own
initiative if it feels a legal doubt exists. However, a tribunal cannot make
a reference to the High Court. This was clearly held in Ramakant Bindal
v. State of U.P., where the court stated that only courts of civil judicature
have the power to make a reference, not tribunals.
Powers and duty of referring court
The referring court can make a reference under the CPC only when a suit,
appeal, or execution proceeding is pending before it and there is a real
and genuine doubt about a question of law. The court must ensure that the
legal question has actually come up in the case and needs to be decided
for resolving the dispute. As explained in Banarasi Yadav v. Krishna
Chandra, the court cannot make a reference on imaginary or hypothetical
legal questions that have no connection with the case. In simple terms, the
doubt must be real and relevant to the matter before the court. If such a
legal issue genuinely arises during the case, then it can properly be
referred to the High Court.
Power and duty of High Court
When a reference is made under the CPC, the High Court
exercises consultative jurisdiction, meaning it gives guidance on
questions of law raised by the lower court. The High Court is not
restricted to answering only the exact question referred to it; as held
in S.K. Roy v. Board of Revenue, it may also examine other legal aspects
that arise while considering the reference. Under Order 46 of the Code,
the High Court has full discretion in dealing with the reference. It may
answer the legal question and send the case back to the referring court to
be decided according to law, or it may refuse to answer the question and
even reject or quash the reference if it finds it unnecessary or improper.

3) Write a note on Caveat Petition?

The word caveat comes from Latin and means “let a person be aware.” In
simple terms, it is a warning or notice asking that no action be taken
without first informing the person who gave the warning. In civil
procedure law, caveat is mentioned in Section 148A of the CPC.
Although the Code does not clearly define what a caveat is, the court
explained its meaning in Nirmal Chand v. Girindra Narayan. The court
said that a caveat is basically a warning given to the court by a person,
requesting that no order or decision should be passed in a case without
first giving that person a chance to be heard.
The person who files a caveat is known as the “Caveator,”
When to Lodge a Caveat in CPC?
Under Section 148A of the CPC, a person can file a caveat when they
believe that a case has already been filed or is likely to be filed against
them in any court. In simple words, it allows a person to inform the court
in advance and request that no order should be passed without first giving
them a chance to be heard.
A caveat under CPC can be submitted in the form of a petition under the
following circumstances:
 During an ongoing lawsuit or legal proceeding and an application has
either already been submitted or is anticipated.
 When a lawsuit is on the verge of being initiated and it is expected
that an application will be filed in that lawsuit.
Who May Lodge a Caveat under CPC?
Under Section 148A of the CPC, a caveat can be filed by any person,
even if they are not a direct party to the case. However, the person filing
the caveat must have a legal right or interest in the matter and must be
entitled to appear before the court in relation to that case. In simple terms,
a third party can file a caveat if the case affects them in some way. A
person who has no real connection or interest in the case cannot file a
caveat.
Where Can a Caveat be Lodged?
A caveat under the CPC can be filed in any court where civil proceedings
are expected to be started against a person. This includes civil courts
having original jurisdiction, appellate courts, High Courts, and even
the Supreme Court of India. Civil courts also include bodies like Courts
of Small Causes, tribunals, forums, and commissions that deal with civil
matters.
However, it is important to understand that a caveat can be filed only in
civil proceedings. As clarified in Deepak Khosla v. Union of India & Ors.,
Section 148A of the CPC does not apply to criminal cases or to petitions
filed under Article 226 of the Constitution. Therefore, a caveat cannot be
lodged against proceedings under the Criminal Procedure Code or writ
petitions.

Unit-V

1) Limitation bars the remedy, but does not extinguish the rights’
Explain?
1. Introduction
The Limitation Act, 1963 came into force with effect from 1st January
1964. It was enacted to consolidate and amend the law for the limitation
of suits and other proceedings and prescribes different periods of
limitation for suits, appeals, and applications.
2. Object of the Act
• The Law of limitation prescribes a time period within which a right can
be enforced in a Court of Law.
• The time period for various suits has been provided under the schedule
of the Act.
• The main purpose of this Act is to prevent litigation from being dragged
for a long time and to quickly dispose of cases which leads to effective
and easy litigation .
3. Period of Limitation
Section 2(j) “period of limitation” means the period of limitation
prescribed for any suit, appeal or application by the Schedule, and
“prescribed period” means the period of limitation computed in
accordance with the provisions of this Act;
4. When Period of Limitation Starts
▪ The time from which the period of limitation begins depends on the
case's subject matter, and a specific starting point of such period is
provided extensively by the Schedule in the Act.
▪ It generally starts from the date when the summons or notice is served,
or the date on which the decree or judgment is passed, or the date on
which the event that forms the basis of the suit takes place.
5. Section 3: Bar of Limitation
Section 3 of the Act provides that any suit, appeal, or application must be
made within the limitation period specified in the Limitation Act.
• If any suit, appeal or application is made beyond the prescribed period
of limitation, it is the duty of the Court not to proceed with such suits
irrespective of the fact whether the plea of limitation has been set up as a
defence or not.
• The provisions of Section 3 are mandatory, and the Court can suo motu
take note of question of limitation.
• The question of whether a suit is barred by limitation is decided by
looking at the facts as they existed on the date when the plaint was filed.
What happens before or after that date is generally irrelevant for deciding
limitation. If, on that day, the prescribed time limit has already expired,
the court must treat the suit as time-barred.
[Link] Bars Remedy but doesn't Extinguish Right
• The law of limitation only bars the remedy by way of the suit i.e., if the
period of limitation expires, the party entitled to file a suit for the
enforcement of a right is debarred from doing
so.
❖ However, the original right on which the suit was to base is not barred.
Thus, limitation only bars the judicial remedy, but it does not extinguish
the right.
• For example, when recovery of a debt becomes time-barred due to
expiry of the prescribed limitation period, the right to the debt does not
end.
❖ If the debtor pays the debt without knowing that it is time-barred,
he cannot later sue the creditor to get the money back on the ground that
the claim had become barred by limitation.
• There is one exception to this rule, which is given in Section 27 of the
Limitation Act, 1963.
❖ It states that when a person’s right to file a suit for possession of
property becomes time-barred, the right to the property itself is
extinguished.
6. Extinguishment of Right
▪ General Rule that the law of limitation only bars the remedy but does
not bar the right itself.
▪ Section 27 is an exception to this rule. It talks about adverse possession.
Adverse possession means someone who has possession over another’s
land for a long time can claim a legal title over it.
o In other words, the title of the property will vest with the person who
resides in or is in possession of the land or property for a long period.
▪ If the true owner does not assert or enforce his rights for a long time, his
rights over the property will be lost, and the person in possession will
acquire a valid legal title to the property.
▪ Section 27 is not confined only to actual physical possession; it also
covers legal (de jure) possession. According to the wording of this section,
it applies only to suits relating to possession of property.
7. Limitation Period When the Court is Closed
Section 4 of the Limitation Act deals with the provision and mentions:
▪ When a court is closed on a certain day and the period of limitation
expires on that day, then any suit, appeal or application shall be taken up
to the Court on the day on which it reopens.
o This means that a party is prevented not by his own fault but because of
the Court being closed on that day.
▪ For instance, if a Court reopens on 1st January and the time for filing
the appeal expires on 30th December (the day on which the Court
remains closed) then the appeal can be preferred on the 1st of January
when the Court reopens
8. Case Laws
Craft Centre v. Koncherry Coir Factories (1990):
It was held by the Kerala High Court that it is the plaintiff’s responsibility
to show that the suit has been filed within the limitation period. If the suit
is filed after the expiry of limitation and the plaintiff wants to rely on
acknowledgments to save the claim from being time-barred, then the
plaintiff must clearly plead and prove those acknowledgments, especially
if they are disputed by the other side. The Court further made it clear
that Section 3 of the Limitation Act is compulsory and mandatory,
meaning that if a suit is barred by limitation, the court has a duty to
dismiss it on its own. This duty applies even at the appellate stage, even if
the issue of limitation was not raised earlier by the parties.

ICICI Bank Ltd v. Trishla Apparels Pvt Ltd (2015):

It was held by Madras High Court that there is no doubt that the court is
duty-bound to dismiss the suit in a case it is barred by time even though
no such plea has been taken by the opposite party
 2) What is Condonation of delay? EXplain the circumstances in
which the delay will be condoned under the limitation act?
Condonation of Delay:
Condonation of delay refers to the discretionary power of a court to
extend the time period within which a party may file an appeal, or
application. Section 5 of the Limitation Act, 1963, is the principal
provision that deals with condonation of delay. This section allows a
court to admit an appeal or application beyond the prescribed period if the
party can prove that there was “sufficient cause” for not filing the appeal
or application within the limitation period.
Section 5 of the Limitation Act, 1963
Section 5 states: “Any appeal or any application, other than an application
under any of the provisions of Order XXI of the Code of Civil Procedure,
1908, may be admitted after the prescribed period if the appellant or the
applicant satisfies the court that he had sufficient cause for not preferring
the appeal or making the application within such period.”
The provision applies to:
Appeals
Applications
It explicitly excludes suits from its purview, meaning condonation of
delay cannot be invoked for filing a suit beyond the limitation period.
What Constitutes “Sufficient Cause”?
The term “sufficient cause” is not defined in the Limitation Act, which
grants the courts wide discretion in determining whether a cause is
sufficient. Over the years, judicial interpretations have provided guidance
on what may or may not constitute sufficient cause. Common grounds
that courts have accepted as sufficient cause include:
Serious illness of the litigant or a close family member
Imprisonment of the party
Legal misadvice from counsel
Natural calamities or other uncontrollable events
Delay in procuring necessary documents from authorities
Judicial Interpretation of Condonation of Delay
The judiciary has played a pivotal role in shaping the doctrine of
condonation of delay by interpreting the scope and application of Section
5 of the Limitation Act. Various landmark judgments provide clarity on
how courts exercise their discretionary powers under this provision.
1. Collector Land Acquisition v. Mst. Katiji & Ors. (1987)
In this landmark case, the Supreme Court of India laid down important
principles for interpreting the doctrine of condonation of delay. The court
held that a liberal approach should be adopted when dealing with
condonation applications, especially when public interest is involved. The
court emphasised that:
 Substantial justice should be preferred over technical considerations.
 Litigants do not gain any advantage by delaying the filing of an
appeal.
 Each day’s delay must be explained, but this requirement should be
applied in a pragmatic, not pedantic, manner.
The court simply meant that if delay is not excused, a good and deserving
case may be rejected only because of a technical rule, and this would be
unfair and contrary to justice.
2. Balakrishnan v. M.A. Krishnamurthy (1998)
In Balakrishnan v. M.A. Krishnamurthy, the Supreme Court explained
that the law of limitation exists for the benefit of society and is based on
public policy. Its purpose is not to punish people unfairly for delays that
happen due to genuine reasons beyond their control. The Court said that
the expression “sufficient cause” should be understood in a broad and
flexible way. It made it clear that the Limitation Act is meant to
encourage people to act on time, not to take away their legal rights merely
because of a delay, especially when the delay is reasonable and justified.
3. State of West Bengal v. Howrah Municipality (1972)
In this case, the Supreme Court emphasised that the term “sufficient
cause” should be construed liberally in favor of granting condonation to
prevent injustice. The court observed that procedural technicalities should
not override the fundamental principle of ensuring access to justice.
Condonation of Delay in Special Circumstances
While Section 5 of the Limitation Act provides the general framework for
condonation of delay, certain special circumstances have been recognised
by the judiciary where a more lenient approach is warranted.
Condonation in Cases Involving the State
In cases where the State or a government entity is the litigant, courts have
been more lenient in granting condonation of delay. This leniency is
based on the rationale that government officials are often bound by
complex procedural rules and may not have personal stakes in the
outcome of a case. Therefore, delays caused by bureaucratic processes are
treated with more understanding.
Cases Involving Public Interest
When cases involve public infrastructure projects or issues that affect the
public at large, courts are usually more ready to excuse delays. This is
because rejecting such cases on technical grounds may harm public
welfare and have wider consequences for society.
Exceptions to Condonation of Delay
Section 5 allows courts to excuse delay only in appeals and applications,
but not in suits. This is because a suit is the main way to enforce legal
rights, and allowing delayed suits would disturb certainty and discipline
in the legal system. Moreover, some special laws, like the Arbitration and
Conciliation Act, 1996, contain their own strict time limits and rules for
condonation. In such cases, Section 5 of the Limitation Act does not
apply, and the special law prevails.

3) once the time has begun to run no subsequent disability or

inability can stop it
Introduction
The Limitation Act, 1963 came into force with effect from 1st January
1964. It was enacted to consolidate and amend the law for the limitation
of suits and other proceedings and prescribes different periods of
limitation for suits, appeals, and applications.
The above phrase explains a basic rule of the law of limitation
Once the limitation period starts running, it keeps running continuously
until it ends. It does not stop beoz of any events that happens later. Even
if a person later becomes incapable of filing a suit, such as due to illness,
death, or any other disability, the limitation period will not pause or
restart.
SEC 9: continuous running of time
This principle is clearly stated in section 9 of the Limitation Act. It says
that once the time has begun to run, no later disability or inability to file a
suit or application can stop it.

There is a limited exception. If letters of administration of a creditor’s

estate are granted to the debtor, then the limitation period for filing a suit
to recover the debt is suspended while the administration continues.
Notes
Section 9 applies not only to suits but also to applications, even though
this is not expressly mentioned in the section .
If, on the date when the cause of action arose, the plaintiff was not
suffering from any disability, time starts running normally against him.
Once it has started, it cannot be stopped by any later disability. This rule
applies both to the person himself and to his legal representatives after his
death.
Finally, sec 9 deals only with disabilities that arise after the cause of
action has accrued. Cases where the person was already under a disability
at the time the cause of action arose are covered separately under sec 9.
Meaning of disability & inability
Disability means a lack of legal capacity to act, while inability refers to a
person’s physical or practical inability to act. The Calcutta High Court
explained this in Pooran Chandra V. Sasson.
According to the court, disability includes conditions like being a minor,
insane, or an idiot, becoz such persons lack legal capacity. on the other
hand, situations like illness, poverty, or similar hardships are examples of
inability, becoz the person may have legal capacity but cannot act in
practice.
In Union Of India V. Tata Engineering and Locomotive Co. Ltd, the
court clarified that sec 9 clearly states that once limitation time has started
running, any later disability or inability to file a suit or application does
not stop it. However, sec 9 itself does not explain how the limitation
period is to be calculated; it only lays down this principle.
Exception
The Limitation Act generally follows the rule that once the time limit for
filing a case starts, it cannot be stopped by any later disability or inability
to sue. The only exception to this rule is found in the proviso to Section 9.
This proviso says that if the administration of a deceased person’s estate
is given to someone who is also a debtor of that deceased person, then the
limitation period will not run against that debtor until the administration
of the estate is completed. The reason behind this rule is fairness. The law
does not want a situation where the same person is responsible for
managing the estate and, at the same time, is expected to be sued for a
debt owed to that estate. In such a case, the person who has to pay the
debt and the person who has the duty to recover it are effectively the
same, so the law pauses the running of time until the administration is
over.

4) Bargav has taken a loan from sagar. He has given an

acknowledgement to sagar before the expiry of limitation stating
that “I owe you Rs. 50,000/-. But I refuse to pay the same”.
Examine the validity of the acknowledgment
Under Section 18 of the Limitation Act, an acknowledgment of liability
made in writing and signed by the debtor before the expiry of the
limitation period gives a fresh starting point of limitation. The
important requirement is that there must be an admission of an existing
liability; it is not necessary that the debtor should also promise to pay.
In the given case, Bargav has clearly stated in writing that he owes
Sagar Rs. 50,000 and this acknowledgment was made before the
limitation period expired. Even though Bargav has added that he refuses
to pay the amount, this does not invalidate the acknowledgment. The
law is settled that an acknowledgment can still be valid even if it is
accompanied by a refusal to pay, as long as the existence of the debt is
admitted.
Therefore, the acknowledgment given by Bargav is valid in law, and it
has the effect of extending the limitation period by giving a fresh
starting point from the date of the acknowledgment.
5) Srikant want to file a suit against Venkatesh. As the court was
closed due to the holiday and that being the last day of the
limitation; he could not file the suit. Srikant seeks extension of
limitation period-will he succeed?
Yes, Srikant will succeed. Under Section 4 of the Limitation Act, when
the prescribed limitation period expires on a day when the court is
closed, the suit can be validly filed on the next day when the court
reopens. Since the last day of limitation in Srikant’s case fell on a
holiday and the court was closed, the law protects his right to sue.
Filing the suit on the next working day will be treated as filing it within
time, and no separate application for condonation of delay is required.
Hence, Srikant is entitled to an extension by law and his suit will not be
barred by limitation.
Section 4 of the Limitation Act deals with the provision and mentions:
▪ When a court is closed on a certain day and the period of limitation
expires on that day, then any suit, appeal or application shall be taken
up to the Court on the day on which it reopens.
o This means that a party is prevented not by his own fault but because
of the Court being closed on that day.
▪ For instance, if a Court reopens on 1st January and the time for filing
the appeal expires on 30th December (the day on which the Court
remains closed) then the appeal can be preferred on the 1st of January
when the Court reopens