Unit - 1

21 January 2025 10:40 AM

Stages of Civil Suit

- Filing of a plaint before a civil court
○ Elements of plaint - Order 7
- Written Statement filed by the defendant (Reply)
- Framing of issues and decision in respect of burden of proof
○ What is a issued is defined in the evidence act.
○ Once a reply has been filed, court will frame issues
- Evidence
- Decision on controversial issues by the judge (Judgment)
- Judgment - Pronouncement and Preparation of Decree
- Execution of the Decree(s)

Definition
- "In this Act, unless there is anything repugnant in the subject or context."
○ This means definitions are merely guide and are not absolute. Court can do
contextual interpretation.
○ By using this expression the legislature has made it clear that the words under in
the definition clause may be given the same meaning throughout unless the
subject or context shows otherwise.
○ Every definition has to be read in light of the context and the scheme of the code.
○ Vanguard Fire and General Insurance Co. v. Fraser (1960)
▪ Deals with the interpretation of the term "insurer"
▪ Under the insurance act, 1938, the term insurer has been defined as a person
carrying on the business of insurance.
▪ However, Sc int this case, expanded the definition to even include persons
who had closed the business of insurance but were carrying such business in
the past. (contextual reading)
▪ It is well settled that all statutory definitions or abbreviations must be read
subject to the qualification variously expressed in the definition clauses
which created them and it may be that even where the definition is
exhaustive inasmuch as the word defined is said to mean a certain thing, it is
possible for the word to have a somewhat different meaning in different
sections of the Act depending upon the subject or the context. (Important)
▪ That is why all definitions in statutes generally begin with the qualifying
words similar to the words used in the present case, namely, unless there is
anything repugnant in the subject or context.
▪ Therefore in finding out the meaning of the word " insurer " in various
sections of the Act, the meaning to be ordinarily given to it is that given in
the definition clause. But this is not inflexible and there may be sections in
the Act where the meaning may have to be departed from on account of the
subject or context in which the word has been used and that will be giving
effect to the opening sentence in the definition section, namely, unless there
is anything repugnant in the subject or context.
▪ In view of this qualification, the court has not only to look at the words but
also to look at the context, the collocation and the object of such words
relating to such matter and interpret the meaning intended to be conveyed by
the use of the words under the circumstances.
○ Pushpa Devi v. Milkhi Ram (1990)
▪ This act deals with the Rent act. Under the rent act a tenant who had paid
arrears of rent was to be provided protection by the court. In the instant case
the amount of rent was also deposited by a person claiming to be a tenant.
▪ The SC held that the benefit should not only be available to the tenant but
also to the person claiming to be a tenant.
▪ It true when a word has been defined in the interpretation clause, prima facie

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 ▪ It true when a word has been defined in the interpretation clause, prima facie
that definition governs wherever that word is used the body of the Statute
unless the context requires otherwise.
▪ "The context" as pointed is both internal and external.
▪ The internal context requires the interpreter to situate the disputed words
within the section of which they are part and in relation to the rest of the
Act.
▪ The external context involves determining the meaning from ordinary
linguistic usage (including any special technical meanings) from the purpose
for which the provision was passed, and from the place of the provisions
within the general scheme of statutory and common law rules and principles.
- Term "Decree" [IMP CHANGE BY AMENDMENT]
○ Has been defined under Section (2)(2)
▪ As "the formal expression of an adjudication which, as far as regards to the
court expressing it, conclusively determined the rights of the parties with
regards to all or any of the matters in controversy in the suit and may be
either preliminary or final.
○ Words to be highlighted: Formal expression, adjudication, conclusively
determined the right of the parties and controversies in the suit. [See Elements]
○ Seems to be a very plain definition.
○ Prior to 1977, a decision under Section 47 of CPC (execution of a decree) was
included within the definition of decree, therefore was appealable.
○ S. 47 said you have to approach the same court to execute.
○ When it was included, it use to overburden court since so long procedure. The
joint committee asked the law commission how can we reduce burden. The Law
Commission said to reduce pendency and time, delete the determination of a
question under S. 47.
○ As a result, any such order which is passed by court under 47 is non appealable
since not considered as a decree.
○ Elements of a decree
○ In order that a decision of a court may be a "decree", the following elements must
be present:
▪ There must be an adjudication
▪ Such adjudication must have been given in a suit.
▪ It must have determined the rights of the parties with regards to all or any of
the matters in controversy in a suit.
▪ Such determination must be of a conclusive nature.
▪ There must be a formal expression of such adjudication.
- ______________________________________________________________________
______________

▪ Adjudication: The must be an adjudication. (Means a judicial

determination of a matter in dispute)
□ A decision on a matter of administrative nature, or an order dismissing
a suit for default or appearance of parties or dismissing an appeal for
want to prosecution cannot be termed as decrees inasmuch as they do
not judicially deal with the matter in dispute.
□ Diwan Brothers v. Central Bank of India (1976)
 The court reasserted that the judicial determination must be by a
court and determination by an officer and does not qualify as a
decree.
▪ Suit: Such adjudication must be given in a suit.
□ The expression "suit" has not been defined in the code.
□ Order rejecting popper (indigent person - status being decided by a
court) suit is not a decree.
□ First test to determine if the proceeding is a suit - Check whether a
plaint has been filed.
□ But there are exceptions - Arbitration Act and Succession Act (Done
by fiction of law - categorized as suits)

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 by fiction of law - categorized as suits)
□ Therefore, a proceeding which does not commence with the filing of
plaint and which is not treated as a suit under any act cannot be said to
be a decree under S. 2(2) of the code.
□ Tribunal decision are not decree under S. 2(2) (not adjudication by
judicial determination)
□ Hansraj v. Dehradun Electric Tramway (1933)
 The privy council defined the term suit as a civil proceeding
instituted by presentation of a plaint.
 Any order
▪ Controversy: It must have determined the rights of the parties with regards
to all or any matter in controversy in the suit.
□ The word "rights" does not merely procedural right but determining
substantive right.
□ Parties means parties to the suit - Plaintiff and Defendant.
□ Matter in controversy means subject matter of the suit (Partition, Title,
Possession, etc.) with reference to which some relief is sought.
□ Thus, three Categories
 Right
 Parties
 Matter in Controversy
□ Not always possible that matter of controversy related to merits of a
case (Khodaly Distilleries)
 For example: In a suit of execution of will - was the will validly
drawn. This is not in the matter but an extraneous consideration.
□ Thus, an order for dismissal of a suit for default of appearance, or an
order dismissing an application for execution for non-prosecution, or
an order refusing leave to sue in forma pauperis, are not decrees as
they do not determine the rights of the parties.
▪ Conclusive: Such determination must be conclusive in nature.
□ Means determination must be final and conclusive as regards the court
whch passes it.
□ Inter locutory order - does not decide the rights of parties finally - is
not a decree
□ The crucial point which needs to be determined in such cases is
whether the decision is final and conclusive in essence and substance.
□ If it is, then is a decree. If not, then is not a decree.
▪ Formal expression: There must be a formal expression of such
adjudication.
□ The decree must be drawn separately and follows the judgment.
□ If a decree is not drawn in accordance with the judgment, no appeal
lies from the judgment.
□ The formal expression must be deliberate and given in the manner
provided by law.
□ Operative part of the judgment is called the decree.
□ They should co-relate and then only it can be appealed.
○ The test to be applied to determine what amounts to be a decree.
▪ The court to take into consideration the pleadings of the parties and the
proceedings leading up to passing of an order.
▪ Example: Determination of a suit as time barred, Dismissal of suit for want
to evidence, Rejection of plain for non-payment of court fees, Order holding
appeal not maintainable, order holding there is no clause of action, order
refusing one of several reliefs, granting or refusing to grant costs, etc.
▪ Which are not decrees: Dismissal of appeal for default, order of remand,
return of plaint for presentation, rejection of application for condonation of
delay, Appointment of commissoiner to take accounts, order granting or
refusing to grant interim relief.
○ (CLASSES) Types of Decrees [3 forms]
▪ Preliminary decree

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▪ Preliminary decree
□ When an adjudication decides the rights of the parties with regard to
all or any of the matter in controversy in a suit but does not completely
disposes off the suit it is called as preliminary decree.
□ In other words, a preliminary decree is only a stage in working out the
rights of the parties which are to be finally adjudicated by a final
decree.
□ Bikoba Deora v. Heera Bai (2008)
 The SC held that a decree denotes final adjudication between the
parties and against which a final appeal would lie but only when
a suit is completely disposed off the final decree would come into
existence.
 Example Order 20 Rule 12 of the CPC - Mesne profit (means
undue or wrongful profit)
 In a suit for declaration of title of a land, where X has filed claim
over a property of land, if a court passed a decree of mesne
profit, it is only a preliminary decree. The final judgment would
be of who is the wrongful owner.
 Order 20 Rule 13 - Administration Suit
 Order 20 Rule 14 - Pre-emption suit
 Order 20 Rule 15 - Suit for desolution of partnership
 Order 20 Rule 16 - Suit for account between principal and agent
 Order 20 Rule 18 - Suit for partition and separate possession
 Order 34 Rule 2-3 - Suit for foreclosure of mortgage
 Order 34 Rule 4-5 - Suit for Sale of mortgaged property
 Order 34 Rule 7-8 - Suit for redemption of mortgage
□ Since the passing of a preliminary decree is only a stage before a final
decree is passed, if an appeal preferred against a preliminary decree
succeeds, the final decree automatically falls to the ground.
□ Shankar v. Chandrakant (1995)
▪ Final decree
□ A decree may be said to final in 2 situations
 When within the prescribed period, no appeal is filed, or the
matter has been decided by the highest court.
 When the decree insofar as in regards to court passing it finally
disposes of the matter.
□ A final decree is one which completely disposes of the suit and finally
settled all the questions in controversy between the parties and nothing
further remains to be decided thereafter.
□ Thus, in a suit for recovery of money, the amount found due to the
decree holder is declared and the manner in which the mount is to be
paid has also been laid down, the decree is a final decree.
□ Ordinarily there can be only one final decree but in certain exceptional
circumstances, there may also be more than one final decree.
▪ Partly preliminary and partly final
□ In a suit dealing with a possession of immovable property which
mesne profit, the court:
 Directs an inquiry into mesne profit (preliminary decree)
 Decrees the possession of the property (final decree)
□ The latter part is final and the former is only preliminary because the
final decree for mesne profits can be drawn only after an enquiry,
when the amount due has been ascertained. In such a case, even though
the decree is only one, it is partly preliminary and partly final.
▪ Deemed decrees
□ The term "deemed" is used in different senses, sometime it means
"generally regarded" and at other times, "taken prima facie to be" or
"taken conclusively to be".
□ An adjudication not fulfilling the requisite of clause (2) of S.2 cannot
be said to be a 'decree'. By legal fiction, however, certain orders and

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 be said to be a 'decree'. By legal fiction, however, certain orders and
determinations are deemed to be 'decrees' within the meaning of S.
2(2).
□ By legal fiction
□ Example
 Adjudication of claim or objection to attachment of property
[O21 R58]
 Adjudication of an application under Rule 98 or 100 of Order 21.
 Restitution order under Section 144
□ But if it is without jurisdiction, the decree will not be valid i.e., it is a
nullity.

Preliminary Decree Final Decree

Only some issues All issues
Does not put end to an litigation Puts an end to the litigation
Several preliminary decrees can be passed There is, usually, only one final decree
Proceeding continues after preliminary The proceedings end after the final decree has been
decree has been passed. passed.

○ Distinction between order, judgment or decree

▪ Order can be passed at various stages of a suit.
▪ Judgment can only be passed hearing all the parties
▪ Decree is passed after the judgment has been delivered.

Order Decree
Multiple orders can be passed during a suit. Usually, only one decree is
passed in a suit.
May or may not be appealable. It can be appealed in terms of
Section 96 of the CPC.
There is no second appeal. Second appeal on substantial
question law under Section 100
of the CPC.
Can be passed at any stage It is the final stage of a suit
May or may not finally determine the rights of Always determines the
the parties. substantive rights of the parties
conclusively.
Includes matters not covered under the Relates to substantive matters
definition of a decree, such as procedural and resolves the primary dispute
orders. in the suit.
May not always have the force of res judicata. Has the force of res judicata,
subject to appeal or review.
Grant of adjournment, interim injunction, Dismissal of a suit, decree for
discovery orders, etc. possession, or decree for
payment of money.

Decree Judgment
A formal expression of an adjudication A statement by the judge explaining the grounds
conclusively determining the rights of the for a decree or order.
parties.
Relates to substantive matters in the suit and Contains the judge’s reasoning, findings, and
resolves the primary dispute. explanation of the decision.
Operative part of the court’s decision, binding Provides reasoning or justification for the decree.
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 Operative part of the court’s decision, binding Provides reasoning or justification for the decree.
on the parties.
Can be preliminary, final, or partly preliminary Does not have classifications; it is a statement of
and partly final. reasoning.
A decree is appealable as of right unless Judgment cannot be appealed directly, but the
specifically barred by law. decree based on it can be challenged.
Conclusively determines the rights of the Serves as the foundation for the decree; not
parties, subject to appeal or review. independently binding.

○ Appealable Order
▪ Identified u/s 104 and O41 R1
▪ They does not end the suit
▪ There is no second appeal from appealable orders
▪ They are different from decrees because they do not end the litigation
▪ An order returning the plaint to be presented to the proper court or an order
reject an application or an order to set aside an ex-parte decree, rejection for
popper suit, are appealable order and not decrees.

- DECREE HOLDER [S. 2(3)]

○ Any person in whose favor a decree has been passed or an order capable of
execution has been made
○ Dhaniram v. Sriram (1980)
▪ There was this person Ratan Lal, not a party to this suit.
▪ He sold his property at a value to Rs. 10000 to Sriram. After few months,
Sriram decided to draw an agreement to reconvey the property to Ratanlal
for amount of Rs. 15,000.
▪ There was no performance, Ratanlal approached the court for specific
performance. The court drew a decree in favor of Ratanlal.
▪ Ratanlal sell the property on the basis of that decree to Dhaniram
▪ Dhaniram approaches the court for execution of that decree which is in favor
of Ratanlal.
▪ Meanwhile, Sriram enters into a compromise with Ratanlal and gives him
Rs. 7000 as a setoff.
▪ The judgment debtor and holder colluded which was detrimental to Sriram.
▪ The SC clarified that even though the original decree holder and the
judgment debtor colluded and compromised the matter but Dhaniram still
has an interest with regards to the execution for the original decree.
▪ Thus, a person who is not a party to the suit but in whose favor an order
capable of execution has been passed is also a decree holder.
▪ Pg. 6 [Read] SCC Online
- FOREIGN COURT [S. 2(5)]
○ Means a court situated outside India and not established or continued by the
authority of the Central Government
- FOREIGN JUDGMENT [S. 2(6)]
○ Means a judgment of a foreign court
○ Section 13, 14 and 44A deals with foreign judgment
○ Rohan Rajesh Kothari v. State of Gujarat (2024)
▪ Rohan was married and had two kids. Wife and came to India with both the
kids. Rohan sought a declaration from US court that children should be
returned to him
▪ Filed a Habeas Corpus in GUJ HC for execution of the judgment passed by
the US Court that children should be returned to him in the US.
▪ Held that a foreign judgment which is violative of Indian law is not
conclusive between the parties and the Indian Courts are not bound to follow
it.
▪ The court said that it is in the best interest of the children that they stay with
their mother, as per the view of Indian Court and Indian policy does not

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 their mother, as per the view of Indian Court and Indian policy does not
support it.
○ Execution is also dependent on various factors like bilateral relations, nationality,
etc.
○ SC Test - How to categorize (Only in light of partition - no general application
and only for neighboring countries)
▪ To decide whether a judgment is a foreign judgment, the crucial test is to
look at the date of the judgment to determine whether it a foreign court or
not.
▪ The date on which it is sought to be enforced or executed is not material.
- GOVERNMENT PLEADER [S. 2(7)]
○ includes any officer appointed by the State Government to perform all or any of
the functions expressly imposed by this Code on the Government Pleader and also
any pleader acting under the directions of the Government Pleader
○ This is a very wide and exclusive definition. Even assistant gp or special gp can
be included in this.
- JUDGE [S. 2(8)]
○ The presiding officer of a civil court
○ Not just persona grata but also be performing judicial functions.
- JUDGMENT [S. 2(9)]
○ A judgment shall contain
▪ A concise statement of facts
▪ The points for determination in case (issue)
▪ The decision thereupon
▪ The reasons for such decision
○ Doesn’t not apply to small causes court (only point ii and iii apply)
○ Small causes means petty matter under a certain amount. (Example: Below 1 lakh
in HYD)
○ It would suffice it is has point (2) and (3) of a judgment.

Order 20 Rule 6A - pending -- see and do !!

Judgment Decree
Reasons should be given No reasons required
Order 20 Rule 6A Order 20 Rule 6A
Judgment is a stage prior to passing of a A decree follows judgment
decree or an order and after the
pronouncement of the judgment, the
decree follows.

- JUDGMENT DEBTOR [S. 2(10)]

○ Any person against whom a decree has been passed or an order capable of
execution has been made.
○ Usually any one of the parties to a dispute can be JD but in case of specific
performance, both can be judgment debtor
- LEGAL REPRESENTATOR [S. 2(11)]
○ Person who in law represents the estate of a deceased person (inclusive definition
and wide in ambit)
○ Also includes who intermeddles with the estate. Vested with certain rights to take
care.
○ Under CPC there are certain criterions of who can be legal reps
▪ Administrators of estate
▪ Executors
▪ Coparceners
▪ Legatee
○ Trespassers are not legal reps. They do not have any vested interest in the
property.
- MESNE PROFITS [S. 2(12)]

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- MESNE PROFITS [S. 2(12)]
○ Those profits which the person in wrongful possession
○ The object for mesne profit is to compensate a person who has been kept out of
possession and deprived the enjoyment of his property even though he was
entitled to possession thereof.
○ Against whom mesne profit can claims?
▪ Wrongful possession is the basis of a claim of mesne profit. The test devised
for assessing a claim for mesne profit is that the court will look at not what
the plaintiff has lost but what the defendant has gained or might reasonably
and with ordinary prudence have gained by such wrongful possession.
▪ Example: Landlord and tenant. Agreement for 10 months. But tenant enjoys
beyond 10 months. Now, to access the claim the value of the property is
irrelevant and rent is the deciding factor. If the agreement says 15k rent, the
court will direct payment of 15k and not what is the price in the vicinity.
What is being lost is immaterial. Only what is gained by the tenant is
material for deciding mesne profits.
○ Principles guiding courts
▪ No profit by a person in wrongful possession
▪ Restoration of status before dispossession of decree holder.
▪ Use to which the property would have been put by the decree holder if he
himself was in possession.
○ Jagat Narayan v. Ravinder (1992)
▪ There was property which was let out for 40 years on a lease,. The period
was over but the property was not returned.
▪ The decree holder approached the court for possession of the land.
▪ The court ruled in favour of the plaintiff. The defendant challenged the
decree and obtained a stay on execution.
▪ When the matter was stayed, the HC while dismissing the appeal, held, that
a tenant was liable to pay mesne profit at a market rent and further held that
after the lease period has expired, it would be unjust to uphold the right of
the appellant to continue occupation under the contractual rate.
○ Marshall Sons and Co. v. Sahi Ore Trans Co. (1999)
▪ Decree of eviction was passed in 1962. However, the possession was not
handed over to the decree holder for sufficiently long period.
▪ The court held that the decree holder to receive reasonable mesne profit.
▪ Because of the delay unscrupulous parties to the proceedings take undue
advantage and person who is in wrongful possession draws delight in delay
in disposal of the cases by taking undue advantage of procedural
complications.
▪ It is also known fact that after obtaining a decree for possession of
immovable property, its execution takes long time.
▪ In such a situation for protecting the interest of judgment creditor, it is
necessary to pass appropriate orders so that reasonable mesne profit which
may be equivalent to the market rent is paid by a person who is holding over
the property.
○ Issue of Joint liability
▪ In those cases where a person who has been dispossessed by multiple person
and not just one person, they are jointly liable. The court may also ask for
separate litigations.
○ While awarding mesne profit, the court may allow deductions from the gross
profit of the defendant such as land revenue, taxes, etc.
○ We should also look at the nature of improvement - is it for personal benefit or
benefit of the land?
○ Interest
▪ Since interest in an integral part of mesne profits, it has to be allowed in the
computation of mesne profits.
▪ The rate of interest is at the discretion of the court, subject to the limitation
that the said rate shall not exceed 6 percent per annum.
▪ Such interest can be allowed till the date of payment

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 ▪ Such interest can be allowed till the date of payment
○ Deductions
▪ While awarding mesne profits, the court may allow deductions to be made
from the gross profits of the defendant in the wrongful possession of the
property such as land revenue, rent, cesses, cost of cultivation and reaping,
the charges of collection of rent.
- ORDER [S. 2(13)]
○ Means the formal expression of any decision of a Civil Court which is not a
decree.
○ Thus, an adjudication which is not a decree is an order.
○ As a general rule, an order by a court of law is founded on objective
considerations and as such the judicial order must contain discussion of the
question at issue and the reasons which prevailed with the court to pass the order.
○ Common elements in order and decree
▪ Both relate to matter in controversy
▪ Both are given by the court
▪ Both are adjudicated
▪ Both are formal expressions

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JURISDICTION -------------------------------------------

SUBORDINATION OF COURTS
- For the purpose of this code, the District Court is subordinate to the High Court and
Civil Court/Small Causes court < District and High Court.
- The term "jurisdiction" deals with the extent of the authority of a court to administer
justice in reference to subject matter, pecuniary limits, and territorial limits.
- Hakkam Singh v. Gammon India (1971)
○ Under the old arbitration act, both the parties entered into agreement and decided
Bombay as jurisdiction.
○ Dispute arose b/w parties - Can the parties decide to give away the jurisdiction in
preference to other courts in Bombay
○ Held that this can be done. Idea was that in Bombay all the courts have
jurisdiction to try this dispute, therefore, to the extent the parties have agreed
contractually to give away preference to one of the court, it will not be contrary to
public policy.
○ Where two courts or more have under the Code of Civil Procedure jurisdiction to
try a suit or proceeding an agreement between the parties that the dispute between
them shall be tried in one of such Courts is not contrary to public policy.

CLASSIFICATION OF JURISDICTION
1. JURISDICTION OVER SUBJECT MATTER
2. TERRITORIAL JURISDICTION
3. PECUINARY JURISDICTION
4. ORIGINAL AND APPELLATE
5. WRIT

PECUNIARY JURISDICTION
○ A court will have jurisdiction only over those suits, the amount of which does not
exceed the pecuniary limits of jurisdiction.
○ Jurisdiction determined by the amount of relief claimed and not the disputed
property.
○ Provisions of Suit Valuation Act, 1887, guides the court for the purpose of
determining the value of a suit.
○ If property is of one crore and it has to be divided. That share would decide the
jurisdiction of the court and not the total value of the property.
○ If the valuation provided in the plaint is within the court jurisdiction the court yet

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 ○ If the valuation provided in the plaint is within the court jurisdiction the court yet
may pass a decree which may be in excess of pecuniary jurisdiction.
○ Where the jurisdiction of the court is challenged, it has the inherent jurisdiction to
decide it.
○ A decree passed by a court without jurisdiction is a nullity.
○ If a plaintiff frames his suit in such a manner or not warranted by facts, and goes
for relief to a court which cannot grant him relief on true facts, the suit will be
dismissed. However, if the jurisdiction is only one relating to the territorial limits
or pecuniary limits, the plaint will be ordered to be returned for presentation
before the proper court.
○ In case, wrongly filed, plaint will be returned.
○ If WP filed, outright rejected (because it is subject matter jurisdiction)

In Telangana:
Name of the court Amount
Jr. Civil Judge Up to 20L
Sr. Civil Judge Exceeding 20L but not exceeding 50L
District Judges Exceeding 50L

ORIGINAL AND APPELLATE JURISDICTIONS

WRIT PETITIONS

PART - I: SUITS IN GENERAL - JURISDICTION OF THE COURTS & RES

JUDICATA

SECTION 9
- The courts shall have jurisdiction to try all suits of a civil nature except suits of which
their cognizance is either expressly or implied barred.
- Earlier there was only one explanation to Section 9. It stated that a suit in which the
right to property or to an office is contested is a cuit of civil nature, notwithstanding that
such right may depend entirely on the decision of questions as to religious rite or
ceremonies. [Explanation 1]
- Explanation 2 was not there and was later on introduced by the amendment - object was
to broaden the scope of S.9.
- Why was it warranted
○ There used to be a lot of dispute whether religious suit where fees it attached can
be considered as a civil suit.
○ There was lack of clarity among HC - Suits of religious nature where fees is
attached - it is of civil nature or criminal nature.
○ There are two elements
▪ There can be religious property which can be attached to a sacred spot
▪ Religious property which is not attached to a sacred spot.
○ There needs to be a clarity with regards to religious cases. What extent will be
civil and what will not be
○ Explanation 2 provides that the suit related to religious office is maintainable,
whether is carries any fees or whether is it attached to any sport.
- Now this classification has been discarded and no matter whether fees is attached or
where the spot it.
- Divergence of judicial opinion regardinng suit relating to religious office to which no
fees or emoluments were attached could be said to be a suit of civil nature.
- Elements of S.9
○ The suit of civil nature related to determination of civil rights and liabilities along
with its enforcement. (even private rights are included)
○ Pure Political, Social and Religious questions are not considered to be suit of civil
nature.
○ Any civil court can try a suit
▪ Suit should be of civil nature
▪ The cognizance of such should not be barred either expressly or impliedly.

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 ▪ The cognizance of such should not be barred either expressly or impliedly.
- S. 9 is based on ubi jus ibi remedium
- A civil court has jurisdiction to try a suit, if two conditions are fulfilled:
○ The suit must be of civil nature
○ The cognizance of such suit should not have been barred expressly or impliedly
- There are certain provisions which bar a plaintiff from instituting a suit in certain
circumstances. (See
(subject to the provisions herein contained)
○ Section 11: Res Judicata
○ Section 12: Bar to further suits by rules contained in first schedule
○ Section 21A: Bar on suit to set aside decree or objection on territorial jurisdiction
of the court.
○ Section 47(1): Where the question requires to be decided by the executing court.
○ Section 144(2): Where restitution is claimed
○ Order 2 Rule 2: Where the plaintiff omits to sue a part of his claim
○ Order 9 Rule 9: Where the decree is passed against the plaintiff by default of
appearance

UNDERSTANDING AND SUIT AND APPEAL

- Suits are a matter of right. In case of appeal, it is not a matter of right. They are always
creature of statutes.
- Gangabai v. Vijay Kumar (1974)
○ There is an inherent right in every person to bring a suit of civil nature unless the
suit is barred.
○ A suit for its maintainability requires no authority of law, but the position in
regards to appeal is different. The right to appeal is inherent in no one and,
therefore, an appeal for its maintainability, must have clear authority of law.
- Kanakku Karthiayani Pillai v. Neelacanta Pillai Raman Pillai (1968)
○ The expression 'jurisdiction' is used in different senses.
○ In the sense of inherent jurisdiction, it is a virtue of the Court and is not dependent
on the consent or dissent of parties, and its lack would make orders and decisions
ultra vires, null and void and therefore challengeable even in collateral
proceedings.
○ On the other hand, in the sense of pecuniary jurisdiction or territorial jurisdiction
which sets the limits of exercise of the powers of a Court it is waivable by the
parties -- such waiver will be presumed conclusively under Section 21 C. P. C.
and Section 11 of the Suits Valuation Act if objection is not taken before
settlement of issues for trial -- and it's want would make the decision, at the worst,
only voidable in an appeal but unchallengeable in collateral proceedings.
- Official Trustee, West Bengal v. Sachindra Nath Chatterjee (1969)
○ Jurisdiction may be defined to be the power of the court to hear and determine a
cause, to adjudicate and exercise any judicial power in relation to it.
○ It is the authority which a court has to decide matter that are litigated before it or
to take cognizance of matters presented in a formal way for its decision.

JURISDICTION AND CONSENT

- Consent would neither vest nor take away the jurisdiction of the court. If the court has
no inherent jurisdiction, neither acquiesce nor waiver nor estoppel can create it.
- Any decree passed without jurisdiction is nonest. Consent cannot validate such a
decision.
- It roots at the very root of the judgment. Can be challenged on ground of lack of
jurisdiction
○ Kiran Singh v. Chaman Paswan (1954) [Valid till date]
▪ The SC held that a decree passed without jurisdiction is a nullity and its
invalidity can be set up whenever it is sought to be enforced even at the
stage of execution or in collateral proceedings.
- LACK OF JURISDICTION AND IRREGULAR EXERCISE OF
JURISDICTION

CPC [DONE] Page 11

 JURISDICTION
○ There is a distinction between want to jurisdiction and irregular exercise of
jurisdiction.
○ The power to decide carries with it power to decide wrongly as well as rightly.
Anismanic Corporation v. Foreign Compensation Commssion
▪ Mining business and hold mines in Egypt. The govt asked all UK nations and
business to close and go back. Once the crisis was resolved, the Egypt paid
compensation to UK govt to compensate all businesses.
▪ Uk government formed a commission to release compensation and decide amount.
Done under foreign compensation Act.
▪ However, whether the corporation was successor in title, could not be proved.
Being approved, they challenged the decision and matter went to house of law
▪ What is error of law and in case of quasi-judicial bodies, can there be ouster of
jurisdiction,
▪ The court explained that error can be error of law and of fact. However, there are
certain jurisdictional facts as well.
▪ Certain facts which are wrongly decided and then wrongly vests jurisdiction in it, it
is an error of law and not an error of fact (it gets converted from EOF).
▪ This blurred the line of distinction between lack of jurisdiction and irregular
exercise of jurisdiction.
▪ Lack of Jurisdiction is considered to be EOL and irregular exercise of jurisdiction
(EOF)

○ Every court has the power to decide wrongly as when as rightly. If there is a lack of
jurisdiction, the decree passed undoubtedly, is a nullity. However, if the court had
jurisdiction but exercised it in an irregular manner, it does not go to the root of the matter
and any such error, can be rectified in appeal or revision.
▪ Mathai v. Varkey (1964)
□ If the suit was barred by time and yet, the court decreed it, the court would be
committing an illegality and therefore the aggrieved party would be entitled
to have the decree set aside by preferring an appeal against it.
□ But it is well settled that a court having jurisdiction over the subject matter of
the suit and over the parties thereto, though bound to decide right may decide
wrong; and that even though it decided wrong it would not be doing
something which it had no jurisdiction to do.
□ It had the jurisdiction over the subject-matter and it had the jurisdiction over
the party and, therefore, merely because it made an error in deciding a vital
issue in the suit, it cannot be said that it has acted beyond its jurisdiction.
○ By the time anesmecin case, the line git blurred. After it SC still came up with.
▪ Budhia v. Gopinath (1999)
□ The distinction between lack of jurisdiction and mere error in the exercise of
jurisdiction is pertinent to be drawn. The former strikes at the root of the
judgment and the latter does not vitiate the legality and validity of the
proceedings unless it is set aside in the manner known to law (appeal or
revision) subject to law of limitation.

- HOW DO YOU DETERMINE JURISDICTION

▪ Looking at the averments made in the plaint - what is the subject matter, claim and
remedy. It becomes the determining factor.
▪ Abdulla v. Galappa (1985)
□ Held that there is no denying the fact that the allegations made in the plant
decides the forum. The jurisdiction does not depend upon the defence taken
by the defendant taken in the written statement.
□ On a reading of the plain as a whole, it is evident that the plaintiff-appellants
had filed the suit giving rise to the present appeal treating the defendants as
trespassers as they denied the title of the plaintiffs-appellants.
□ Now a suit against the trespasser would lie only in the civil court and not in
the revenue court.
- JURISDICTIONAL FACT
○ Jurisdiction of any court tribunal or authority may depend on fulfilment of certain
conditions precedent or upon existence of certain facts. Such a fact is called
"jurisdictional fact".
○ If jurisdictional fact does not exist, the court or tribunal cannot act. If it wrongly assumed
jurisdiction, writ of certiorari can be issues.

CPC [DONE] Page 12

 ○
jurisdiction, writ of certiorari can be issues.
○ The principle underlying is that by erroneously presuming such existence, a court or
tribunal cannot confer upon itself jurisdiction which it otherwise does not possess.
- WHO DECIDES JURISDICTION
○ It is well-settled that a civil court has inherent power to decide the question of its own
jurisdiction.
○ Desika v. State of Andhra Pradesh (1964)
▪ There was a state legislation which gave power to the settlement officer to decide
the question of "inam" property.
▪ The matter was filed in the court instead of office. SC held that civil court does not
have the jurisdiction as the jurisdiction has been excluded in the favour of the
settlement officer.
- PRESUMPTION OF JURISDICTION
○ In dealing with the question whether a civil court has or has not jurisdiction to entertain a
suit, it is necessary to bear in mind that every Presumption shall be made in favour rather
than ousting it.
○ It is well-settled that in deciding the question of jurisdiction, what is important is the
substance of the matter and not the form.
○ It is the substance and not the form which decides the jurisdiction.
○ Bank of Baroda v. Motibhai (1985)
▪ The bank lend out certain money to the defendant by way of a collateral security
obtaining a bond and deed of mortgage from the defendant under the provisions of
the tenancy act. (Under which the exclusive jurisdiction lied with the revenue
board)
▪ The defendant defaults in payment. Bank filed for a suit for specific performance.
Defendant claim that civil court does not have the jurisdiction but the revenue court
has it.
▪ Plaintiff seeks for repayment of money, and not with regards to mortgage or
tenancy issues. Major principle business of bank is money. The court said the main
relief sought in the suit is non-payment of amount which was lent to the defendant
by the bank.
▪ It is the substance and not the form which decides the jurisdiction.
- INCIDENTAL QUESTIONS
○ When a court of limited jurisdiction has to decide a particular dispute, it has the
jurisdiction to consider collateral issue only prima facie, and the jurisdiction of civil court
to decide such issue finally is not taken away.
○ Nor such a finding of the court of limited jurisdiction would operate as red judicata in
subsequent proceedings.
○ LIC v. India Automobiles (1990)
▪ The court was deciding the issue with regards to rent. Under the relevant act the
rent controller has to the power to decide any issue with regard to rent.
▪ Question - To what extent the jurisdiction will be valid?
▪ TO the extent it is a matter related to affixing fair rent, the appropriate authority is
the rent controller but once that is over, and the tenant wants to claim property
rights, it has to be filed before the civil court.
▪ The decision of the rent controller with respect to determination of fair rent is not
final and cannot preclude the parties from contending in civil court that he is the
owner of the property.
- CONDITIONAL OUSTER
○ There may also be conditional ouster of jurisdiction of a civil court. In such cases, the
civil court has the jurisdiction to decide whether the condition in fulfilled and whether its
jurisdiction has been ousted.
○ Taraben Modi v. Jash Bhai (1980)
▪ Under Gujarat Rural Debtors Relief Act, a mechanism has been provided. If any
party approached civil court and it is claimed that civil court does not have
jurisdiction.
▪ As per provisions of the act, the court held that the civil court had the jurisdiction to
decide two negative facts;
□ Whether the provisions of the act do not apply to the case
□ Whether the judgment debtor is not a debtor under the act
▪ If fulfilled, the jurisdiction of the civil court will be conditionally ousted.
▪ In a case of conditional ouster of its jurisdiction, the Civil Court has, in our opinion,
jurisdiction to decide whether the condition is fullfed and whether its jurisdiction
has been ousted.
▪ That is the inherent power of every Civil Court.

CPC [DONE] Page 13

 ▪ That is the inherent power of every Civil Court.
▪ It is abhorrent for us to think that the Civil Court cannot decide upon the existence
or otherwise of the conditions which oust its jurisdiction and should be required, in
absence of any express provision in that behalf, to have its own jurisdiction decided
by an executive officers who perform ~ quasi-judicial functions between two
private individuals under the said Act.
▪ We cannot deny to the Civil Court its inherent jurisdiction to decide the question
relating to its own jurisdiction, particularly in a case where its jurisdiction has been
conditionally or partially ousted.

BURDEN OF PROOF
○ It is well settled principle that the party who seeks to oust the jurisdiction of the court,
generally has the burden of proof to establish their contention.
○ Every statute that leads to ousting of jurisdiction should be strictly construed.

EXCLUSION OF JURISDICTION
○ Dhulabhai v. State of Madhya Pradesh (1969) [V. IMP under S.9]
▪ SC summaries the principles regarding exclusion of jurisdiction.
▪ Where the statute gives a finality to the orders of the special tribunals the Civil
Courts' jurisdiction must be held to be excluded if there is adequate remedy to do
what the Civil Courts would normally do in a suit. Such provision, however, does
not exclude those cases where the provisions of the particular Act have not been
complied with or the statutory tribunal has not acted in conformity with the
fundamental principles of judicial procedure.
▪ Where there is an express bar of the jurisdiction of the court, an examination of the
scheme of the particular Act to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the jurisdiction of the civil
court. (object of ADR mechanism., See l. Chandakumar and Sampath connect in
terms of jurisdiction) (If the remedy is not effectual, such cases, validity ousting
jurisdiction can be challenged.)
▪ (Extension of 2nd point)Where there is no express exclusion the examination of the
remedies and the scheme of the particular Act to find out the intendment becomes
necessary and the result of the inquiry may be decisive. In the latter case it is
necessary to see if the statute creates a special right or a liability and provides for
the determination of the right or liability and further lays down that all questions
about the said right and liability shall be determined by the tribunals so constituted,
and whether remedies normally associated with actions in Civil Courts are
prescribed by the said statute or not. (remedy should be equally efficacious)
▪ Challenge to the provisions of the particular Act as ultra vires cannot be brought
before Tribunals constituted under that Act. Even the High Court cannot go into
that question on a revision or reference from the decision of the Tribunals. (Can
only we done generally in a WP before a constitutional court).
▪ When a provision is already declared unconstitutional. or the constitutionality of
any provision is to be challenged, a suit is open. A writ of certiorari may include a
direction for refund if the claim is clearly within the time prescribed by the
Limitation Act but it is not a compulsory remedy to replace a suit. (once declared
unconstitutional, most appropriate remedy is certiorari and the claim bought about
by parties is within the limitation limit, a refund can be claimed)
▪ Where the particular Act contains no machinery for refund' of tax collected in
excess of constitutional limits or illegally collected a suit lies. (If government acts
on unconstitutional provision, case can be filed to recover the amount taken by
govt) (Once declared unconstitutional, any action taken under it would be a nullity)
(only prospective effects).
▪ Questions of the correctness of the assessment apart from its constitutionality are
for the decision of the authorities and a civil suit does not lie if the orders of the
authorities are declared to be final or there is an express prohibition in the particular
Act. In either case the scheme of the particular Act must be examined because it is
a relevant enquiry. (If there is a claim of constitutional rights)
▪ An exclusion of the jurisdiction of the Civil Court is not readily to be inferred
unless the conditions above set down apply.

EXPLANATION: 1 - Section 9
○ Reason was that in England, there were court of religion. In common law system, same
set of ideas was imported in India.
○ TO clarify the dichotomy, exp 1 was added to CPC.

CPC [DONE] Page 14

 ○ TO clarify the dichotomy, exp 1 was added to CPC.
○ Remember earlier we said it is substance and form.
○ Dispute which relates of property, even though there is some religious ceremony aspect, it
will be of civil nature.
○ It should be a primarily property or office related dispute.
○ Ram Janam Bhoomi Case
○ IF there is a temple, there is a dispute b/w two groups i.e., who is going to administer. A
claim rights as trustees and B claims that they have been born in a community which
performs religious functions - Right substance is - office and who gets the assets, etc. -
therefore, civil nature under S.9. Does not matter that you will gave to delve into religious
questions.
○ PMA Metropolitan v. MM Marthoma (1995)
▪ Two groups of Christians had a disput with regards to running Church Premises.
There were two factions in Malankara Serian Christian Church and they key issue
was a property dispute.
▪ The dispute was regarding control of Church property including a property related
to Church office.
▪ Can a civil court decide a dispute involving religious matter particularly when the
case involves property right and control of office in a religious institution.
▪ Explanation 1 - It obviates any ambiguity by making it clear that where even right
to an office is contested then it would be a suit of a civil nature even though that
right may entirely depend on the decision of a question as to religious rites or
ceremonies.
▪ A suit in which the right to property or religious office was involved it would be a
suit of civil nature.
▪ Explanation q removes the doubt and enables the court to entertain suits where
disputes about religious office is involved. It therefore, cannot be contended that a
civil suit is on maintainable on the ground that the right to property or to an office
depends on decisions of questions as to religious faith, belief, doctrine or creed.
○ Sinna Ramanuja v. Ranga Ramanuja (1961)
▪ Held that under S. 9, court has the jurisdiction to entertain every suit of civil nature
except those whose cognizance is barred expressly or impliedly.
▪ Suits raising questions of religious rights only are not maintainable because they do
not deal with legal rights of parties, but the explanation states that a suit in which
right to property or an office is contested, is a suit of civil nature not withstanding
that it may depend on the question as to religious rights and ceremonies.
○ Key Points
▪ The explanation is emphasizing that the nature of a suit is determined by what is
being contested (in this case property or office) and not necessarily by the type of
question involved (like religious matters.)
▪ Even if the dispute involves religious ceremonies, as long as the core issue is about
property or office, the case is still considered a civil suit and can be heard in regular
civil court.
▪ A dispute might involve religious questions but that doesn’t change its civil nature.
▪ Why is this important ?
□ Helps to clarify that court should not shy away from hearing cases that have
religious elements, as long as the underlying issue is about civil rights like
property or office. The focus is on the right to property or office - those are
the key factors that make it a civil suit.

EXPLANATION: 2
○ In spite exp 1 existed, any dispute which any fees was not attached, will that be of civil
nature.
○ Before explanation 2 was added, a distinction was sought to be made between an office to
which fees or emoluments were attached and other offices to which no such fees or
emoluments were attached.
○ As regard to the former class, it was held that a suit was maintainable against an intruder
interfering the holder of such office for a declaration by the holder of the office that he
was entitled to the office and fees or emoluments attached to it inasmuch as such suit
could be a suit of civil nature.
○ But, there was a conflict whether a suit relating to religious office to which no fees or
emoluments were attached could be said to be a suit of civil nature.
○ Clarified by this explanation - Even if fees or emoluments are not attached - the nature
will remain civil and can be entertained before a civil court.

CPC [DONE] Page 15

---------------------------------------- Jurisdiction ends here [S.9] ----------------------------------------

RED SUB JUDICE AND RED JUDICATA

S.10 - RES SUBJUDICE (STAY OF SUIT)

- Section 10 deals with stay of civil suits. It provides that no court shall proceed with the
trial of any suit in which the matter in issue in also directly and substantially in issue in
a previously instituted suit between same parties and that the court in which the
previous suit is pending is competent to grant the relief claimed.
- This rule only applies to the trial of suit and not its institution.
- It also does not preclude a court from passing interim ordered, such as, grant of
injunction or stay, or appointment of receiver.
- Basic issue in despite will not be tried by the subsequent court
- Section 10 has no application in case of appeals and revisions.
- Suit can only stayed if both the courts have jurisdiction, parties are same, issues are
direct and substantial.
- If the issue is not same, will continue in both the courts
- The object of the rule contained in S. 10 is to present court od concurrent jurisdiction
from simultaneously entertaining and adjudicating upon two parallel litigations in
respect of the same cause of action, the same subject matter and the same relief.
- The policy of law is to confine a plaintiff to one litigation, this obviating the possibility
of two contradictory verdicts by one and the same court in respect of the same relief.
- The object is to protect a person from multiplicity of proceedings and to avoid a conflict
of decisions.
- The extent of Section 10 id that it only applies to suits and not to other proceedings. No
application of one of the two proceedings is not a suit.
- Example: An application made by an indigent person for a popper suit. Here section 10
will have no application.
- Proceeding before labour court, a tribunal, etc., will not be a suit.
- Conditions under S.10
○ There must be two suits. One which is previously instituted and other which is
subsequently instituted.
○ The matter in issue in subsequent suit must be direct or substantially in issue in
the previous suit
○ Both the suits must be between the same parties or the representatives.
○ The previously instituted suit must be pending in the same court in which the
subsequent suit in brought or in any other court in India or any court beyond the
limits of India or continued by central government or before the Supreme Court of
India.
○ The court in which the previous suit in instituted must have the jurisdiction to
grant the relief claimed in the subsequent suit
○ Such parties must be litigating under the same title in the both the suits
- Test to decide whether section 10 would apply or not
○ Whether in a decision the previously instated suit would operate as res judicata in
the subsequent suit. If it is so, then the subsequent suit must be stayed.
- Section 10 only applied in relation to Indian Court
- WHETHER MANDATORY ?
- The subsequent suit has to compulsorily stay the suit -- it is mandatory, subject to
fulfilment of conditions
- The court can even Suo-moto stay the suit if it is satisfied if section 10 applies.
- If the previous suit is filed on false or vexatious ground or in violation of the terms of the
contract, section 10 does not become inapplicable.
- Reasons is introduction of Section 35A and 35B - They deal with costs. The Sc has held that the
legislature was aware of the facts that suits may be filed for vexatious claims -- that is the
reason these provisions -- the legislative intent is very clear.
- The legislature has not mentioned in under S.10 but still it does not make S.10 intentionally.
- In stay of suit under S.10, the court cannot lay down conditions. However, stay of suits can also
be done under 151 of CPC. It talks about inherent power of the court -- in that case conditions
can be added.

CPC [DONE] Page 16

 can be added.
- Indian v. Maharashtra State Co-operative Marketing Federation (1998)
○ The object of the prohibition contained in section 10 is to prevent the courts of concurrent
jurisdiction from simultaneously trying two parallel suits and also to avoid inconsistent
findings on the matters in issue.
○ The provision is in the nature of a rule of procedure and does not affect the jurisdiction of
the court to entertain and deal with the later suit nor does it create any substantive right in
the matters.
○ It is not a bar to the institution of a suit. It has been construed by the courts as not a bar to
the passing of interlocutory orders such as an order for consolidation of the later suit with
earlier suit, or appointment of a Receiver or an injunction or attachment before judgment.
○ The course of action which the court has to follow according to section 10 is not to
proceed with the 'trial' of the suit but that does not mean that it cannot deal with the
subsequent suit any more or for any other purpose.
○ In view of the object and nature of the provision and the fairly settled legal position with
respect to passing of interlocutory orders it has to be stated that the word 'trial' in Section
10 is not used in its widest sense.
- An application for stay u/s 10 has to be made where the subsequently instituted suit is pending
for adjudication.
- With regards to matter in issue - it related to the subject matter of the suit.
- Parties may not be completely identical. -- No need have having identical parties.
- Same title means in the same capacity - Example debtor and creditor

THE CONDITIONS
1. Two suits
i. The first condition for the application of the doctrine of res subjudice is that there
must be two suits, one previously instituted and other subsequently instituted.
ii. The trial of the second suit is barred only where the previously suit is pending.
iii. Section 10 does not apply if the one of the two proceeding is not a suit.
iv. The burden is on the defendant to show that the cause falls under section 10.
2. Matter in Issue
i. The matter in issue in both the suits must be the same. The term "matter in issue"
means the entire subject matter of the two suits.
ii. In order that S.10 may apply, the subject matter of both the suits shall be identical.
iii. The words "directly and substantially in issue" in the previously instituted suit are
undes in contradistinction to the words "incidentally or collaterally in issue".
iv. Hence if the subject matter of the two suits is not the same, S.10 will not apply
merely because the main issue in both the suits is common.
v. In is not necessary for the applicability of this section that all the issues in the
previously instituted suit must also be the issues in the subsequently instituted suit.
Nor it is essential that the reliefs claimed in both the suits should be identical.
3. Same Parties
i. Is it however, not necessary that all the parties on the either side must be the same
in both the suits.
ii. "Same parties: mean the parties between whom the matter substantially in issue has
arisen and has to be decided.
iii. Complete identity of parties is not required.
4. Pendency of suit in Indian Court
i. It is necessary that the previously instituted suit must be pending in the same court
in which subsequent suit is brought, or in any other court in India or in any court
beyond the limits of India established or continued by the Central Government.
5. Same Relief
i. The trial of subsequent suit can be stayed only when the court is trying the previous
suit has jurisdiction also to grant the relief asked for in the subsequent suit.
ii. It is essential that the court in which the first suit is pending must be competent to
grant the relief claimed in that suit and also the relief claimed in the second suit.
iii. The expression "having jurisdiction to grant the relief claimed" contemplated the
competency of the first court to grant the relief in second suit.
6. Same Title
i. The partis to both the suits must be litigating under the same title.
ii. Same title means same capacity
iii. The rue test is identity of title and not the identity of the subject matter.

RES JUDICATA AND STARE DECISIS [S. 11]

CPC [DONE] Page 17

RES JUDICATA AND STARE DECISIS [S. 11]
- Res judicata means "a case already decided" or "a matter settled by a decision or a judgment".
- "Stare decisis" means "to stand by decided cases" or "to uphold precedents" or "not to disturb
the settled law".
- Whereas res judicata is based on conclusiveness of a judgment; stare decisis rest on legal
principles.
- Res judicata binds only parties however, stare decisis binds the courts from taking a contrary
view on point of law already decided.
- For res judicata to apply, the lis and parties must be same.
- A precedent arises when the court determined certain issues for a certain set of facts but in a
different lis.
- Hence, when a material fact match in a later case., then that issue stands determined for the later
case though the lis and parties are different.
- Based on three maxims
○ Neno debitbis vecsari pro una et edem cause [No man shall be vexed for the same cause]
○ Interest republice ut sit finus litium [It is in the interest of the state that there should be an
end to a litigation]
○ Resjudicata pro veritate occiptur [A judicial decision must be accepted as correct]
- Purpose is to give finality to a decision and determine the rights conclusively
- Otherwise, a lot of chaos will be created and heavy bar would be created on important issues.
- Protect a person from adverse and endless litigations.
- Avoiding re-adjudication on the same issue which has already been decided.
- MATTER IN ISSUE
○ A decision of a competent court on a matter in issue may be res judicata in another
proceeding between the same parties.
○ The matter in issue may be an issue of fact, issue of law or one of mixed law and fact.
○ MATTER DIRECTLY AND SUBSTANTIALLY IN ISSUE - EXPLANATION III
▪ The question whether or not a matter is “directly and substantially in issue” would
depend upon whether a decision on such an issue would materially affect the
decision of the suit.
▪ The question has to be determined with reference to plaint, written statement,
issues and judgment.
▪ Example:
□ A sues B for a) declaration of title to certain lands and b) for the rent of those
lands. B denies A’s title to land and also contends no rent is due. In this case,
both are matter directly and substantially in issue.
○ MAGTTER CONSTRUCTIVELY IN ISSUE - EXPLANATION IV
▪ Constructive res judicata is an artificial form of res judicata.
▪ A matter is in issue if it is directly and substantially related but under explanation,
if there is something that the court feels that this issue should have raised at an
earlier stage, the court will not allow it.
▪ Not applicable in WP(s) -- because in cases of violation of FRs, the constitutional
bench is free to devise the procedure.
▪ It is legal fiction
▪ Example:
□ A sues B for possession of property on basis of ownership. The suit is
dismissed. A cannot claim possession as mortgagee as that ground ought to
have been taken in previous suit as ground of attack.
○ Workman C.P. Trust v. Board of Trustees (1978)
▪ It is well known that the doctrine of res judicata is codified in section 11 of the CPC
but it is not exhaustive. Section 11 generally comes into play in relation to civil
suits.
▪ The rule of constructive res judicata is engrafted in Explanation IV of section 1 1 of
the CPC and in many other situations also principles not only of direct res judicata
but of constructive res judicata are also applied.
▪ If by any judgment or order any matter in issue has been directly and explicity
decided the decision operates as res judicata and bars the trial of an identical issue
in a subsequent proceeding between the same parties.
○ State of Uttar Pradesh v. Nawab Hussain (1977)
▪ A sub-inspector of police was dismissed from service by DIG. He challenged it by
filing a WP in HC on the ground that he was not afforded a reasonable opportunity
of hearing.
▪ He filed a fresh suit raising an additional ground that since he was appointed by
IGP, DIG had no power to dismiss him.
▪ SC held that the suit was barred by res judicata

CPC [DONE] Page 18

 ▪ SC held that the suit was barred by res judicata
○ Forward Construction v. Prabhat Mandal (1986)
▪ An adjudication is conclusive and final not only as to the actual matter determined
but as to every other matter which the parties might and ought to have litigated and
have had it decided as incidental to or essentially connected with the subject matter
of the litigation and every matter coming with the legitimate purview of the original
action both in respect of the matters of claim or defence
▪ The principle underlying Explanation IV is that where the parties have had an
opportunity of controverting a matter that should be taken to be the same thing as if
the matter had been actually controverted and decided
▪ It is true that where a matter has been constructively in issue it cannot be said to
have been actually heard and decided. It could only be deemed to have been heard
and decided.
○ Daryao Singh v. State of UP
▪ Parties were litigating under the same title.
▪ The court clarified that once a petition has been dismissed under Art 226 because it
has been substantially decided, the same issue cannot be raised again under article
32 in supreme court

- Difference between res judicata and estoppel [SHORT QUESTION]

▪ Doctrine of equity v. larger public interest
▪ A promise which is induced by the party is estopped however res judicata results from the
decision of a court and bars multiplicity of suits.
▪ Estoppel does not bar (only specific issues will not raise) the suit but res judicata
▪ Bhanu Kumar Jain v. Archana Kumar (2005)
□ SC held that red judicata debars a court from exercising its jurisdiction to determine
the legal issues in a suit if has obtained finality between the parties. However, the
doctrine of estoppel is invoked against the party if such an issue is decided against
him he would be stopped from raising the same in a later case.
□ Law on res judicata and estoppel is well understood in India and there are ample
authoritative pronouncements by various courts on these subjects.
□ The plea of res judicata, though technical, is based on public policy in order to put
an end to litigation. [Read this para in full - pending here]
□ There is a distinction between 'issue estoppel' and 'res judicata'. Res judicata debars
a court from exercising its jurisdiction to determine the lis if it has attained finality
between the parties whereas the doctrine issue estoppel is invoked against the party.
□ If such an issue is decided against him, he would be estopped from raising the same
in the latter proceeding. The doctrine of res-judicata creates a different kind of
estoppel.

- THE WORDS "MIGHT" AND "OUGHT"

○ The word ‘might’ presupposes that the party had prior knowledge of ground of attack.
○ ‘Ought’ compels the party to take such ground.
○ Both have to be read conjunctively.

CPC [DONE] Page 19

 REPRESENTATIVE SUIT - EXPLANATION VI
- This Explanation provides that where persons litigate bona fide in respect of a public right or a
private right claimed in common for themselves and others, and all persons interested in such
right shall be deemed to claim under the persons so litigating.
- Thus, where a suit is filed under Section 92 and a decree is passed, law presumes that all
persons who have same interest as plaintiffs in the representative suit were represented by the
said plaintiffs, and therefore, are constructively barred by res judicata from reagitating the
matters directly and substantially in issue in the former suit.
- CONDITIONS
○ There must be a right claimed by one or more persons in common for themselves and
others not expressly named in the suit;
○ The parties not expressly named in the suit must be interested in such right;
○ The litigation must have been conducted bona fide and on behalf of all the parties
intended; and
○ If the suit is under Order I, Rule 8, all conditions laid down therein must have been
strictly complied with

COMPETENT COURT
○ The court which formerly decided the suit must have been a court competent to try the
subsequent suit. Underlying principle behind this explanation is that the decision of the
court of limited jurisdiction ought not to be final and binding on court of unlimited
jurisdiction.
○ In order to determine whether a court which decided the former suit had jurisdiction to
try the subsequent suit regard must be given to the jurisdiction of that court at the time
of former suit and not to its jurisdiction at the date of subsequent suit.
○ Jeevantha v. Hanumanta [1954]
▪ The dispute was first decided by a Mufassil court but later on in the subsequent
case, they did not have jurisdiction.
▪ In order to make out a plea of 'res judicata' it is necessary to prove that the Court
that tried the former suit was competent to try the present suit.
▪ There can be no question about it but it is also well settled that in order to
determine whether a Court which decided the former suit had jurisdiction to try
the subsequent suit, regard must be had to the jurisdiction of that Court at the date
of the former suit and not to its jurisdiction at the date of the subsequent suit.
▪ If at that time such a Court would have been competent to try the subsequent suit,
had it been then brought, the decision of such Court would operate as 'res judicata'
although subsequently by a rise, in the value of the property that Court had ceased
to be a proper Court, so far as regards its pecuniary jurisdiction, to take
cognizance of a suit relating to that very property.
▪ The test to be applied
□ Is the second suit at such could have been tried by the first court, if yes, plea
of res judicata is applicable. (This can only be when the jurisdiction of first
court is concurrent with that of the second court.)
○ Court into three categories
▪ Court of exclusive Jurisdiction (Established by a statute)
▪ Court of concurrent jurisdiction (Both are competent to try - ex: revenue and civil)
Court of limited jurisdiction (limited by pecuniary, territorial, or subject matter)

COURT OF EXCLUSIVE JURISDICTION

▪ The plea of res judicata can be successfully taken in respect of judgments of
courts having exclusive jurisdiction like revenue court, land acquisition court, etc.

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 courts having exclusive jurisdiction like revenue court, land acquisition court, etc.
(only with regards to that specific matter).
▪ Example: Revenue Court: RJ can only apply if subject matter if of revenue.
▪ However, the courts are not entitled to try regular suits. Any decision beyond the
specific subject matter would not operate as res judicata.
COURT WITH CONCURRENT JURISDICTION
▪ Competence under section 11 has no relation with territorial jurisdiction.
▪ Church of South India Trust Assn. v. Telugu Church Council [1996]
□ There was a conflict among different High Courts regarding the meaning of
the phrase "a Court of limited jurisdiction" under Explanation VIII.
□ Calcutta High Court Interpreted this phrase narrowly, stating it refers only to
specialized courts such as Revenue Courts, Land Acquisition Courts,
Administrative Courts, Insolvency Courts, Guardianship Courts, and Probate
Courts, which have jurisdiction over specific types of cases.
□ High Courts of Kerala, Orissa, and Madras took a broader view, holding that
a "Court of limited jurisdiction" also includes courts that have pecuniary
limitations (i.e., those restricted in the value of cases they can hear).
□ The Court ruled that a "Court of limited jurisdiction" under Explanation VIII
includes courts with pecuniary restrictions, meaning that if a court had
jurisdiction over a matter based on its pecuniary limit, then its decision
would be res judicata in subsequent suits.
□ Explanation VIII removes these limitations, ensuring that res judicata
applies regardless of territorial jurisdiction if the previous court had
pecuniary and subject-matter jurisdiction over the dispute.
□ Even though the property involved was in Andhra Pradesh, the Madras High
Court had pecuniary and subject-matter jurisdiction over the case.
□ Since the territorial jurisdiction is not a requirement under Explanation VIII,
the Supreme Court held that the Madras High Court’s decision operates as
res judicata in subsequent suits.
COURT OF LIMITED JURISDICTION
▪ Sulochana Amma v. Narayana (1994)
□ Section 11 is to be read in combination and harmony with Explanation VIII.
The result that would flow is that an order or an issue which had arisen
directly and substantially between the parties or their privies and decided
finally by a competent court or tribunal, though of limited or special
jurisdiction, which includes pecuniary jurisdiction, will operate as res
judicata in a subsequent suit or proceeding, notwithstanding the fact that
such court of limited or special jurisdiction was not a competent court to try
the subsequent suit.
□ Before Explanation VIII was introduced, courts interpreted the phrase
"competent to try the subsequent suit" to mean that the earlier court must
have had the pecuniary jurisdiction to try both the first and subsequent suits.
This meant that:
□ Even if the first court lacked territorial or pecuniary jurisdiction to try the
later suit, its findings on issues directly and substantially in dispute would
still be binding in subsequent proceedings.
□ Explanation VIII must be read in conjunction with Section 11 to understand
its purpose and scope. The explanation ensures that the technicalities of
jurisdiction (e.g., pecuniary or subject-matter limitations) do not undermine
the doctrine of res judicata.
The passage clarifies that an explanation in a statute is not a substantive
provision but serves to clarify or explain the main provision.
□ Explanation VIII is intended to harmonize with Section 11 and remove
ambiguities regarding the application of res judicata to courts of limited
jurisdiction.
□ [Read more from judgment para 6,7,8 - see gpt]

FINALLY HERD & DECIDED

▪ The expression means a matter in which court has exercised its judicial mind and

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 ▪ The expression means a matter in which court has exercised its judicial mind and
after arguments and consideration recorded a finding and arrived at a decision on
a contested matter.
▪ State of Maharashtra v. National Construction Company [1996]
▪ A suit was filed by the plaintiff, dismissed due to non-joinder parties.
▪ Court said that because the suit was dismissed on technical grounds and was
not herd and decided finally, res judicata would not apply.
▪ Res judicata also applies in case of ex-parte decrees.
▪ In limine dismissal - plea of res judicata does not apply

EXCLUSIVE JURIDICTION CLAUSES

- How are parties allowed to oust jurisdiction - ICA s. 28, says any agreement in restraint of legal
proceedings is void.
- Parties cannot agree to give jurisdiction to a court which does not have it and they cannot take
away from those who have it.
- However, in some cases, the court have allowed such scenarios where there were multiple valid
jurisdiction and the parties agreed to one of them -- it will be valid
- Read: [Link]
jurisdiction-clause-in-contracts

- The revisional court will not interfere unless there is consequent failure of justice

SECTION 21 & 21A

- Talks about express bar on appellate and revisionary bar that a plea with regards to jurisdiction
shall not be taken at a later stage and can only be entertained by the executory court at the
earliest stage.
- Idea is to prevent parties to institute multifarious jurisdiction
- Jurisdiction is the most imp part so the defendant should raise it at the most earlier moment.
- 21A further strengthens section 20 by providing for res judicata
- Initially the term "place of suing" was used and confined to territorial jurisdiction. To clarify the
object, the parliament enhanced the scope of section 21 to incorporate clauses (1) (2) and (3).
- There may be two scenarios:
○ 1: Defect goes to the root of the matter
○ 2: Defect does not goes to the root of the matter
- Where a plea has not been raised at an early stage, the appellate and revisionary courts will not
entertain the plea of jurisdiction because if allowed would affect the merits of the case
- Bahrain Petroleum Co. v. Pappu (1966)
○ Held if the defendant allows the trial court to proceed with the judgement without raising
objection as to place of suing and takes the chance of a verdict in his favor, he clearly
waives the objection and will not be allowed consequently to raise it.
- Kiran Singh v. Chaman Paswan (1954)
○ The policy underlying section 21, ----- read case (earlier done) -- matter of technicality
- Section 21 has application I case where there is a matgter of mere technicality. For example the
district has been reorganized today, the court does not have an idea whether the dispute falls
under which district, the court's decree does not become a nullity
- The defendant has to make a plea
- Two fold objective of Section 21.
○ To prevent multi litigation
○ The defendant should be the one raising
- The court has no juris over subject matter, it strikes at the very root and the authority of the
court is questionable.
- Such a defect is so fundamental, that even consent of parties would not cure it.
- Draws a distinction between territorial and subject matter -- technical and fundamental.
- Even at the level of SC, subject matter jurisdiction can be set aside -- no matter if plea has been
taken there.
- However, S.21 will not apply in those cases where the parties have ulterior motives or where
the resources of the court
- ONCG v. Utpal Kumar (1994)
○ Tenders were invited for opening of a kerosene unit in Gujarat -- the process of
selection/vetting was to be carried out in new Delhi -- now two jurisdiction
○ Tender of a person was rejected and filed a petition in CAL HC which accepted it and
interim order was passed, a preliminary objection of judication was raised -- no cause of

CPC [DONE] Page 22

 ○
interim order was passed, a preliminary objection of judication was raised -- no cause of
action nor the plant is to be established nor vetting is being done in CAL HC -- then what
jurisdiction does CAL HC has?
○ It was contended that even if this Court comes to the conclusion that the High Court of
Calcutta had no jurisdiction, this Court should, in the absence of proof of prejudice,
refuse to interfere with the decision of the High Court unless it is otherwise found to be
erroneous.
○ The SC found merit in objection and interpreted section21.
○ SC observed that while the spirit of Section 21 of the Code of Civil Procedure may
support such a submission, we are afraid, the discretion cannot be used in favor of a party
which deliberately invokes the jurisdiction of a court which has no jurisdiction
whatsoever for ulterior motives.
○ That would only encourage such type of litigation. The object underlying the provision in
Section 21 is not to encourage such litigants but to avoid harassment to litigants who had
bona fide and in good faith commenced proceedings in a court which is later found to be
wanting in jurisdiction.
○ In the instant case, we are convinced, beyond doubt, that NICCO did not act bona fide in
moving the Calcutta High Court and, therefore, the submission based on Section 21 must
fail.
- Pathumma v. Kuntalan Kutty (1981)
○ The court came up with three points summarizing the conditions of S.21
▪ The objection has to be taken in the court of first instance.
▪ It has to be taken at the earliest possible opportunity, in cases where the issues are
settled or before settlement of issues.
▪ There has been consequent failure of justice
○ All these points must co-exist for application of section 21. Individual application does
not fulfil.

SECTION 21A
- Bar on suit to set aside decree on objection as to place of suing
- Objective is finality
- Does not create any procedural right but only strengthed res judicata

]ay for example

Read CC act
Read Updates on ab
-- gayatri bala swami SLP
Commerical litigation -- LKS courts amicus curie
Look at recent samvad partners - res locuta
Basic question HR -- why choose law self
Try to make it a conversation -- ok convercatin \
Ok mindful and bratty
CPC

CPC [DONE] Page 23

Place of Suing
10 February 2025 10:41 AM

PLACE OF SUING [S. 15]

- The expression place of suing means venue of trial and has nothing to do with the competency
of court
- Further it has been held that section 15 is a rule of procedure and not of jurisdiction.
- Order 7 Rule 10 - It tlaks abot reutrn of plain to be present to the proper court.
- If a suit triable by court of lower grade is instituted in court of higher grade, the latter court
cannot be said to have no jurisdiction to try the suit. Such court may return the plaint to plaintiff
under O7 R10 to be presented to the court in which the suit should have been instituted.
- Drona Vajjula v. Vallabha Joyslu [AIR 1958 AP 218]
○ The AP High Court clarified what S.15 provides for is that every suit shall be instigated
in the court of lower grade competent to try it.
○ The term competence is only qualifies to pecuniary competency even if the court of
higher grade tries and disposes off the suit which could have been instituted in the court
of lower grade.
○ The decision referred is not without jurisdiction and is not a nullity.
- The object underlying is two-fold:
○ Firstly,m to see that the court of higher grades shall not be overburdened with suits
○ Second, to afford convenience to the parties and witness who may be examined by them
in such suits.
- The object of the legislature is to reduce the burden of court of the higher grade. Since, it is for
the benefit of the court of higher grade, as a matter of procedure, such court ought not to
entertain the suit if it can be entertained by a court of the lower grade but should return the plain
to the plaintiff for being presented in the propert court as provided in O7 R10.
- That parties and the witnesses, it might be convenient to have the trial by the lower court.

SECTION 120
- Section 120 provides that Provisions of sections 16, 17, and 20 does not apply to High Courts in
exercise of their original civil jurisdiction.
- Can the competency be removed by applying section 120 - The court has said that
- Rama Mirtham v. Rama Film Services [AIR 1951 MAD 93]
○ The full bench of MAD HC held that notwithstanding that section 15 is not one of the
exempted sections mentioned in Section 120. It does not fit into the scheme of legislation
with a legislative intent apparent that Section 120 has no application vis-a-vis Section 15.

DEFINED - PLACE OF SUING

- S. 15 to S. 25 under the head "Place of Suing" regulate the forum for the institution of suits in
India.
- Bhamboo v. Ram Narain (1928)
○ Sections 15 to 20 lays down rule regarding place of suing and there can be no doubt that
the expression is used in reference to the rules underlying.
○ In term of Section 15, the word which is used is "shall" -- accords a mandate and makes
section 15 imperative. It lays down a mandatory sort of procedure.
- The word "courts of lowest grade" refers to the courts contemplated under the CPC.
- The term competency deals with the jurisdiction of the court. Authority to decide a particular
cause or matter in dispute and when the court has the jurisdiction of the suit, it has all the
authority to hear all the issues.
- For determining the jurisdiction shall be computed according to the relief claimed (or market
value of property) and not the subject matter (property involved).
- The term subject matter does not mean the property involved in the suit but the relief claimed
and it is the value which determines the jurisdiction.
- The valuation of a suit may be distinct from the valuation for the payment of court fees. Hence,
the amount of court fees does not determine the jurisdiction.
- If there is a deliberate under or overvaluation of the property in dispute -- the court may return
and may also impose costs.
- Commercial Aviation and Travel Co. v. Vimla (1988)
○ Where there are objective standards of valuation or, in other words, the plaintiff or the
Court can reasonably value the relief correctly on certain definite and positive materials,

CPC [DONE] Page 24

 ○
Court can reasonably value the relief correctly on certain definite and positive materials,
the plaintiff will not be permitted to put an arbitrary valuation dehors such objective
standards or materials.
○ In suits mentioned under section 7(iv) of the Court Fees Act, the plaintiff has the right to
value the relief sought, subject to any rules made under the Suits Valuation Act.
○ In a suit for accounts, it is difficult for the plaintiff to value the relief until the accounts
are taken accurately.
○ The court cannot interfere with the plaintiff’s valuation unless there are objective
standards or positive materials on the face of the plaint.
○ The Supreme Court also observed that in a suit for accounts, it is almost impossible for
the plaintiff to accurately value the relief. Until the accounts are taken, the plaintiff cannot
determine the exact amount that may be due to them.
○ The court noted that Order VII, Rule 11(b) of the Code of Civil Procedure requires the
court to come to a finding that the relief claimed has been undervalued. In a suit for
accounts, the court can’t determine the correct value at a preliminary stage.
○ Depending on the stage of trial - either the plaint will be returned or rejected or
transferred to an appropriate court

- IRREGULAR EXERCISE OF JURISDICTION

○ Happens when
▪ Where a suit which ought to have been instituted in a court of lower grade is
instituted in a court of higher grade
▪ where a suit which ought to have been instituted in a court of higher grade is
instituted in a court of lower grade
▪ institution of a suit in a court of higher grade
○ Sometimes it may happen that a suit may be improperly instituted in a court of lower
grade but by a subsequent legislation, the pecuniary jurisdiction of such court is raised so
as to cover the suit originally instituted.
○ It has been held that initial lack of jurisdiction cannot be cured and the court would not be
competent to try the suit despite subsequent increase of its pecuniary limit.

SECTION 16 : Suit to be instituted where subject-matter situate

- Section 16-18 deal with suits relating to immovable property.
- Section 16 provides that the suits for recovery of immovable property, or for partition of
immovable property, or for foreclosure, sale or redemption of mortgage property, or for
determination of any other right or interest in immovable property, or for compensation for
wrong to immovable property must be instituted in the court within the local limits of whose
jurisdiction the property is situate.
- Based on the principle that Actions against the property should be brought in the forum where
the property is situated.
- Courts cannot try suit where immovable property is situated beyond the territorial jurisdiction
of the court.
- Object is to limit territorial jurisdiction. Based on a well settled principle, that court has no
jurisdiction over a matter in regards to which a decree cannot be effectively passed.
- Section 62 of the Copyright Act -- provides an example for an exception for jurisdiction
provided by CPC.
- IMMOVABLE PROPERTY
○ Section 3(26) of the General Clauses Act says that “Immovable property shall include
land, benefits arising out of land and things attached to the earth, or permanently fastened
to anything attached to the earth." Thus, it specifies the following as immovable property:
▪ LAND: It encompasses the upper as well as the low1er surface of the earth. Any
interest arising in the same will be treated as that of immovable property. It would
include wells, rivers, ponds, canal dug on surface (natural or artificial).
▪ BENEFITS ARISING OUT OF LAND: This category includes everything dealing
with rights and interests in land as defined above. Right to collect rent or zamindari.
▪ THINGS ATTACHED TO LAND: The nature and intention of attachment is very
important.
○ Where such properties are situated within the jurisdiction of different courts the suit may
be instituted in any court within the local limits of whose jurisdiction any portion of the
property is situated.
○ A suit to set aside a decree and sale in execution thereof and for the recovery of property
should be brought within the local limits whose jurisdiction the property is situated,
although the decree may have been passed by another court.
○ If there is alternation in boundaries of the state, and a suit has already been instituted,

CPC [DONE] Page 25

○ If there is alternation in boundaries of the state, and a suit has already been instituted,
there will be no change in the jurisdiction. The court had the jurisdiction to try the dispute
and any subsequent change would not divest the court.
○ In Re: District Judges (1971) [Orissa HC]
▪ The court held that once a litigation has been brought before the proper court and
the court is in possession of the case, the provision of S.16 are no longer applicable
on the ground that the mandatory provision contained in that section has already
been given effect to.
▪ At any time beyond the stage of institution, the question of jurisdiction would not
arise for consideration.
○ 16(b) : Suit for Partition
○ 16 and its effect is only confined to property within India. If the property was earlier
situated in India and now are beyond the limits of India, or it is scattered within two
countries. -- In a suit for partition of property which lies within the territory cannot be
denied outrightly. The part of the property which is in jurisdiction of Indian can be dealt
with.
○ It's not a set formula.
○ If the property is partly movable and partly immovable the court can decree the movable
property which is within its jurisdiction to the extent it is within its jurisdiction.
○ There is a common law - Any attribute of a moveable property, will be a part of
immovable property.
○ The court can only decree which lies in Indian and rest can be left aside.
○ 16© -- exception to proviso
○ Talks about foreclosure, sale, or redemption
○ Syndicate Bank v. Gangadhar (1991) [Kar HC]
▪ The court held that nature of S. 16(c) is explicit in language and imperative in
command that a suit shall be instituted only in the court within whose local limits
the immovable property forming the subject matter of mortgage is situated.
▪ The only exception to S. 16(c) is in respect of cases covered by the proviso which is
applicable to other clauses of S. 16.
▪ How do you read harmoniously -- If you look at 16c, suit shall be filed where the
property is located but the defendant challenged it by telling that it should be where
he resides.
▪ The court rejected -- Section 20 does not override Section 16 in property related
matters.
▪ There is an expressive legislative intent in section 16 about mortgage disputed. --
thus there is no anomaly. Section 20 has no application here.
▪ Proviso would only operate where the property is scattered. ,-- If there is a
developer who has ongoing projected in various parts -- gets delisted due to fraud --
shareholders filing suits various parts -- he can file a application for clubbing and
transferring all the petitions. [not a part of judgment]
○ Latter intent of the legislature will prevail -- so proviso
○ Proviso says that a suit can also be filed where the defendant resides provided that you are
able to prove that the defendant will be obedient. Personal obedience is the only
requirement.
○ Rosy Joseph v. Union Bank of India (1978) [Ker HC]
▪ The provision contained in Clause (c) of Section 16 and that under the said clause it
is explicit and mandatory that the suit shall be instituted onlv in the court within the
local limits of whose jurisdiction the immovable property forming subject-matter of
the mortgage is situate, the only exception made being in respect of cases covered
by the proviso to the said section.
▪ That proviso covers only suits to obtain compensation for wrong to immovable
property or other relief in respect of immovable property where the relief sought
can be entirely obtained through the personal obedience of the defendant.
▪ The present suit is obviously not one falling within the scope of the proviso. The
provision contained in Section 20 permitting suits to be instituted in courts within
the local limits of whose jurisdiction the defendant actually and voluntarily resides,
or carries on business etc. or where the cause of action, wholly or in part, arises, is
expressly stated to be subject to the limitations laid down in Ss. 16 to 19.
▪ Hence in a case which is directly governed by Section 16 (c), Section 20 cannot be
called in aid and it is not permissible for the plaintiff to institute the suit in any
court other than the one within the local limits of whose jurisdiction the mortgage
properties are situate.

CPC [DONE] Page 26

 properties are situate.
○ 16(f) : Suit for Recovery for immovable property
▪ State of Assam v. Biraj Mohan (1965)
□ The next contention of Mr. Singh is that Section 16(f) is attracted only to a
case where the suit Is brought for the recovery of the property and mit for a
declaration
□ Section 16(f) really applies to a case for the recovery of moveable property
under distrait or attachment. If the principle is accepted that the property
under attachment is in possession, of the Court and no suit for recovery of the
property will lie, then the provisions of Section 16(f) become redundant and
there will be no case where Section 16 (0) will be attracted because in the
cases of attachment the claimant of the property will only have to bring a suit
for declaration and not for recovery of the property.
□ This is not the intention of Section 16 of the Code of Civil Procedure. From a
perusal of the plaint and from the entire facts in the case, it will have to be
seen whether in substance the suit is for the recovery of the property or not
and not from only the express words of the relief claimed in the plaint
□ It should also be pointed out that in case it is held that the suit is not for
recovery of the property and the property, is in the possession of a third party,
in that event, the suit will fall under Section 42 of the Specific Relief Act and
thus, in our opinion, there is no substance in the contention of Mr. Singh that
Section 16 of the Code of Civil Procedure is not attracted as there is specific
relief for the recovery of the property.
○ Personal Obedience (proviso)
▪ Union Bank of India v. Logic System Pvt. Ltd. (1992)
□ The proviso would apply in those cases where the relief sought can entirely
be obtained by personal obedience of the defendant without the defendant
having to go out of the jurisdiction of the court.
□ The proviso would apply in following cases:
 the property must have been held by or on behalf of the defendant
 the relief could be entirely obtained through the personal obedience of
the defendant
 the property must have been situated within and not beyond India

SECTION 17: Suits for Immovable Property situated within jurisdiction of different countries
- Section 17 supplements Section 16 and is practically another proviso to that section.
- Before the provisions of Section 17 comes into play, one property must have been situated in
different jurisdiction.
- Karan Singh v. Kunwar Sen, (1942)
○ In suits which arise out of disputes about immovable property the jurisdictions of Courts
depend upon the situation of the property itself, difficulty would naturally arise if there
was a put about some immovable property which was situated partly within one
jurisdiction and partly within another.
○ The provisions of Section 17 are, in my judgment, intended to solve this difficulty, but
before the provisions come into play there must be one property which is situated in
different jurisdictions.
○ The property must, in the particular circumstances of the suit, be capable of being
described as a single entity. Whether it can or cannot be so described will depend again
upon the nature of the dispute between the parties.
○ If there is a dispute, for instance, about a single estate which both parties are claiming as a
whole that estate is obviously for the purposes of that particular suit a single entity.
○ If on the other hand, the owner of an estate has a claim against unconnected trespassers
who have trespassed upon different parts of the estate or different properties situated
within it, those parts or those properties would not for the purposes of the dispute between
him and the trespassers be one entity but several entities and the provisions of Section 17
would not apply
- The section is intended for the benefit of suitors and avoids multiplicity of proceedings with
regard to immovable property.
- The provisions of Section 17 do not apply to High Courts in exercise of their original
jurisdiction. (Section 120)

RELIEF RESPECTING OR COMPENSATING FOR WRONG TO IMMOVABLE

PROPERTY

CPC [DONE] Page 27

PROPERTY
- This phrase is construed in light of Section 16. This Section doesn’t apply to suits in respect of
immovable property not covered by covered by clauses (a) to (e) of Section 16
- All suits covered under Section 16 can be stated to be suits for obtaining relief respecting
immovable property.

MAY BE INSTITUTED
- The terms are enabling and permissive and clearly indicate that it is for the plaintiff to select his
own forum.
- Madho Deshpande v. Madhav Dharmadhikaree (1988)
○ The Court at Nagpur had undoubtedly part of the jurisdiction to entertain the suit, as part
of the dispute which was the subject-matter of the dispute was within the jurisdiction of
the Nagpur Court.
○ In view of the provisions of Sections 17 and 20 of the Code of Civil procedure, the order
of the Civil Judge that the award be returned for presentation to the proper Court is
erroneous.
○ The High Court was also in error in not entertaining the application and in not setting
aside the order of the Civil Judge.

SELECTION OF FORUM
- The choice is applicable only when the Code applies to both the courts.
- A portion of property of the subject-matter of suit, must actually exist within the territorial
jurisdiction of the court in which the suit is filed.
- When more than one court has jurisdiction to entertain, deal with and decide a matter, parties
can agree to select one of the forums and such agreement would be binding.
DIFFERENT CAUSES OF ACTIONS
- Where a plaintiff has two or more causes of action in the suit, he can take advantage of Section
17 if joinder of such causes of action is permitted under Order 1, Rule 3 or Order 2, Rule 3.
However, in c ase it leads to multifariousness, the suit cannot be tried.
- Where there is one cause of action in respect of properties comprised in the suit which are
situate within the jurisdiction of different courts or where question arises which is common as
against defendants, the provision will apply.
- Janki Devi v. Manilal
○ On reading Section 17, and Order 1, Rule 3, Civil Procedure Code we are of opinion that
it is only in those cases where there is one cause of action and the basis of the plaintiff's
claim is the same in all the claims against the various defendants, that one joint suit in
respect of all the immovable properties, whether situated within the jurisdiction of that
court or within the jurisdiction of different courts, can be taken cognizance of provided
that a part of the property lies within its territorial jurisdiction and the total claim is within
its pecuniary jurisdiction.
SEPARATE SUITS
- Section 17 is merely permissive and hence, when the properties are situate in different
jurisdiction, there is no bar to parties bringing successive suits. In such cases, two options are
available –
○ he may file a suit on whole claim in any one of the courts
○ he may file separate suits on the same cause of action in respect of each properties
situated within the jurisdiction of respective courts.
WITHDRAWL OF PART OF CLAIM
- A withdrawal of part of claim does not affect the jurisdiction of the court to proceed with and
decide the other part of the claim.
- It is based on principle that once jurisdiction is vested, it cannot be taken away.
- A wrong decision as to territorial jurisdiction of the court by the trial court, is subject to revision
under Section 115 of the Code
- The court ordinarily has the jurisdiction to execute decree with respect to property which is
situated partly within and partly outside the local limits. The court, however, under Section 39
can send the decree to be executed by the other court.

SECTION 18
- S.18 talks about the cases where there is a lack of clarity with regards to jurisdiction.
- Invoked in cases where the jurisdiction is uncertain. Such kind of issue may arise when there is
absence of notification of boundary of a district.
- For applying Section 18, the court must have a reasonable ground for being satisfied as to the
uncertainty of the jurisdiction. Where the court is satisfied of such uncertainty, it has to record a

CPC [DONE] Page 28

 uncertainty of the jurisdiction. Where the court is satisfied of such uncertainty, it has to record a
statement to that effect and proceed with the case.
- Thus, it is upon the court to decide itself.
- However, if the statement is not recorded -- the second half of Section 19 -- in case it is not
recorded, and still the court continues to decree the suit, the decree will not be void, unless there
has been a consequent failure of justice.
- Non recording of statement as to the uncertainty of territorial jurisdiction will not vitiate the
decree of the judge provided this question would have been considered. The conditions:
○ Where there is no reasonable uncertainty which existed at the time of the suit.
○ Such objection should have been taken in the court of first instance.
○ There has been a failure of justice in consequence thereof.
- Only when these three conditions are fulfilled, the decree can be set aside.
- At an appellate stage, if it is claimed that such an argument was raised but was not consider, can
be set side, subject to the condition that the party is able to prove it.
- The objection as to the jurisdiction should have raised at a preliminary stage. If objection is not
taken in the trial court, appellate or revisional court will not allow such objection to be taken.
- Again, an appellate or revisional court will not interfere with the decree passed by the trial court
on the ground that the trial court had no jurisdiction unless there has been consequent failure of
justice.

SECTION 19
- S.19- Suits for compensation for wrongs done to a person or property
- A wrong (actionable claim) may occur at any place and may consists of series of acts. Plaintiff
has the choice, to file where he resides or where the defendant resides.
- In such cases, it is open to the plaintiff to institute a suit at a place where the initial action
complained of took place of where consequences ensued.
- If a wrongful act is committed within the local limits of jurisdiction of one court and the
defendant resides or carries on business or personally works for gain within the local limits of
jurisdiction of another court, both courts have jurisdiction to entertain the suit.
- State of Maharashtra v. Sarvodya Industries (1975) BOMHC
○ Provisions of Section 19 are specific in subject and clear in its operation.
○ Two conditions - it governs a suit seeking restitutive reliefs of compensation on the basis
of wrong done to the person or to movable property and it should ask for compensation.
○ Secondly it offers and furnishes option or choice if the conditions indicated by the
qualifying clause are satisfied in that wrong complained of was done within the local limit
of one Court while the defendant in fact resides or carries on business within the Local
limits of jurisdiction of another Court.
○ Unless both these conditions together are available no question of option or choice for
forum can conceivably, arise.
○ The conjunction "and" in the qualifying clause is very much indicative of this result,
leaving aside the cases where these conditions together are not available, the matters, of
such suit are still governed by other provisions of the Code.
- In order that this section may apply, the following two condition must be fulfilled:
○ A wrong must have been done to the person or to movable property; and
○ The suit must be one for compensation
- Section 19 deals with suits for compensation for "wrong done" to a person or movable property,
focusing on where the wrong occurred.
- "Wrong done" includes not just the initial wrongful act but also its effects or consequences
(e.g., damage or loss).
- Section 20(c) is broader, allowing suits where the cause of action (wholly or in part) arises,
including both the act and its effects.
- Jurisdiction can be established where the damage was suffered, even if the wrongful act
occurred elsewhere.
- Section 19 and Section 20(c) are complementary:
○ Section 19 is specific to compensation suits.
○ Section 20(c) acts as a residuary provision for cases not fully covered by Section 19.\
- A broad interpretation of "wrong done" ensures courts can provide relief where the effects of
the wrong are felt, aligning with principles of restitution.
- S. 19 and S. 20: Relative Scope
○ Section 19 overlaps section 20, however, it is not in the nature of an exception to section
20. It appears to have been enacted for the purpose of elucidating that the place where the
wrong is done to a person or movable property is the place where cause of action arises
within the meaning of section 20(c). '

CPC [DONE] Page 29

 within the meaning of section 20(c). '
○ Section 20 by its opening part indicates that Section 19 is treated as a limitation upon the
generality of the provisions of Section 20. In other words, if a suit is regulated by Section
19, the provisions of Section 20 would not come into operation

SECTION 20 : OTHER SUITS TO BE INSTITUTED WHERE DEFENDANT RESIDES OR

CAUSE OF ACTION ARISES
- SECTION 20 is a residuary section and enacts the rule as to forum in all cases not falling within
the limitations of Sections 15 to 19.
- Every suit referred to in this section can be instituted either in the court within whose
jurisdiction the defendant resides or carries on business or personally works for gain, or the
cause of action wholly or in part arises.
- The Code divides actions in three categories:
○ Actions relating to immovable property
○ Actions relating to person or movable property
○ Mixed action partly relating to immovable property and partly personal
- The first and third classes of suits have been dealt under Sections 16 to 18 . Section 19 and 20
deal with the second class of action.
- The rule as to forum contemplated by Section 20 are alternative. Each of the clauses are
disjunctive and makes provision for a distinct or different situation
- Once the plaintiff has exercised the choice and selected the forum, he cannot be allowed to
change the forum by withdrawing the suit to be filed elsewhere.
- The burden of proof is on plaintiff to show that the court has the jurisdiction to try the suit.
- All the three expressions used in clause (a) of the section are intended to cover all possible
eventualities in which a person, sued in a civil court, could be found, irrespective of whether a
natural person, a juristic person, a body corporate, a statutory corporation, a constitutional or
any other authority, capable of being sued.
- Clause (c ) enables court to entertain a suit, is a cause of action wholly or in part has arisen
within the local limits of its jurisdiction.
- Food Corporation of India v. Evdomen Corporation (1999)
○ Jurisdiction of the Bombay High Court to entertain a suit under its ordinary original civil
jurisdiction is determined by Clause 12 of the Letters Patent of the Bombay High Court.
○ Under Section 120 of the Civil Procedure Code, Sections 16, 17 and 20 of the Civil
Procedure code do not apply to a High Court in the exercise of its original civil
jurisdiction.
○ Under Clause 12 of the Letters Patent a place where the defendant, or each of the
defendants where there are more than one, at the commencement of the suit, carry on
business would be a place where the court would have jurisdiction.
○ Therefore, under Clause 12 of the Letters Patent of the Bombay High Court, the Bombay
High Court would have jurisdiction over the subject matter of the dispute in the present
case because the appellant does carry on business in Bombay.
- From the group of 6 sections (Sec 15-20), it is clear that they are comprehensive enough to
provide for the multitude of suits which can be brought in a Civil Court under Section 9.
- Section 15 enacts that a suit can be instituted in lowest court
- Section 16 enables the court to entertain a suit if the subject-matter of the suit is situate within
the limits of its local jurisdiction.
- Section 17 provides forum for a suit relating to immovable property situated within jurisdiction
of different courts
- Section 18 applies where local limits of jurisdiction of different courts in uncertain.
- Section 19 applies in case of suit for compensation for wrong to person or movable property
- Section 20 is a residuary section and covers all cases not covered under Sections 15-19
- "Subject to the limitations Aforesaid" are the opening words of S.20, meaning, Section 20 will
operate in case Sections 16-19 do not apply.

CONTRAVENTION OF S.20 - EFFECT

○ Non-compliance with the provisions of Sections 15-20 as to place of suing is not fatal to
the suit. A decree passed in contravention of these provisions is not a nullity.
○ Section 21 provides that an objection as to territorial or pecuniary jurisdiction cannot be
permitted to be raised in appeal, revision or in execution proceedings.
○ Section 21-A as inserted by the CPC Amendment Act, 1976 declares that no suit can be
filed to set aside a decree passed by a court of competent jurisdiction on an objection as to
territorial or pecuniary jurisdiction of the court.
○ Board of Trustees for Ports of Calcutta v. Bombay Flour Mills Pvt. Ltd.

CPC [DONE] Page 30

○ Board of Trustees for Ports of Calcutta v. Bombay Flour Mills Pvt. Ltd.
▪ A imported goods at Calcutta, the goods were not released because port charges
were not paid.
▪ A approached the District Court at Bharatpur, Rajasthan and obtained mandatory
injunction.
▪ It was contended by the Port Authorities that the office of the defendant was at
Calcutta, liability of payment of dues arose at Calcutta, since no part of cause of
action arose at Bharatpur, the District Court had no jurisdiction.
▪ Upholding the contention, the SC set aside the order observing order was without
jurisdiction and void.
○ Jeewanti v. Kishan Chandra
▪ The SC held that in order to give jurisdiction on the ground of “residence”,
something more than a temporary stay is required. “Residence” denotes stay which
is more or less in a permanent character, and of such a nature that the court in
which the respondent is sued, is his natural forum
▪ The word 'reside' is by no means free from all ambiguity and is capable of a variety
of meanings according to the circumstances to which it is made applicable and the
context in which it is found.
▪ It is capable of being understood in its ordinary sense of having one's own dwelling
permanently, as well as in its extended sense. In its ordinary sense 'residence' is
more or less of a permanent character
▪ The expression 'resides' means to make an abode for a considerable time; to dwell
permanently or for a length of time; to have a settled abode for a time. It is the
place where a person has a fixed home or abode
▪ Where there is such fixed home or such abode at one place the person cannot be
said to reside at any other place where he had gone on a casual or temporary visit,
e.g. for health or business or for a change.
▪ If a person lives with his wife and children, in an established home, his legal and
actual place of residence is the same. If a person has no established home and is
compelled to live in hotels, boarding houses or houses or others, his actual and
physical habitation is the place where he actually or personally resides.

○ Union of India v. Ladulal Jain

▪ The SC observed that the expression “business” has very wide import. In that case,
a suit was instituted against UOI and railway authorities for recovery of damages
on account of non-delivery of goods.
▪ It was contended by the defendants that running of railway by the GOVT. cannot be
said to be carrying on business. Rejecting the contention, the court held that
running railway can be said to be business. The fact as to who runs it and with what
motive cannot affect it.
▪ It does not hold that such activity carried on by Government will not be "business'
if conducted without profit motive. We are of opinion that 'profit element' is not a
necessary ingredient of carrying on business, though usually business is carried on
for profit
▪ It is to be presumed that the Railways are run on a profit basis, though it may be
that occasionally they are run at a loss.
○ Interpretation of "Carries on Business'
▪ The term is widest of all three expressions used under Section 20.
▪ The term “business” however is used in restricted sense and limited to commercial
business. This is supported by the words “personally works for gain” used in the
same section, which were unnecessary had the expression “business” been intended
to be used in unrestricted sense.
▪ A person is said to “carry on business” when he controls or directs it or he is having
interest in a business at that place.
▪ The test of carrying on business is not the continuity or the intermittency of the
business, but the fact of owning interest in the business and receiving profits.
▪ A person may carry on business personally or through an agent or servant. It is not
necessary that the principal should have even gone to the place of business. It is
however, essential that
□ The person acting as an agent must be an agent in the strict sense of the term;
□ He must be a special agent and must attend exclusively the business of
principal; and
□ The essential part of the business must take place at the place of business.

CPC [DONE] Page 31

 □ The essential part of the business must take place at the place of business.
○ "Personally Works For Gain"
▪ The expression is intended to cover a place where a natural person may be gainfully
employed, or where a person lives outside the local limits of jurisdiction but comes
within them to work for gain.
▪ The term “personally works for gain” applies only to natural persons.
▪ Must carry out personally, not through an agent or servant.
▪ M/S. Dhodha House vs S.K. Maingi
▪ s
○ EXPLANATION
▪ Explanation enacts that a corporation shall be deemed to carry on business at its
sole or principal office in India, or, in respect of any cause of action arising at any
place where it has also a subordinate office, at such place.
▪ The explanation is a deeming provision. It provides that a corporation shall be
deemed to carry on business at its sole or principal office, irrespective of the fact
that it carries on business at other places also.
▪ By the first part, a corporation shall be deemed to carry on business at its sole or
principal office.
▪ Under the second, it shall be deemed to carry on business, in respect of any cause
of action arising at any place, where it has also a subordinate office at such place
▪ The two parts are disjunctive . Thus, a suit can be institutes where it has its sole or
principal office in India or in respect of any cause of action arising at any place
where it has also a subordinate office.
▪ The word “corporation” is not confined to statutory corporations but also
companies registered under the Companies Act.
▪ Patel Roadways v. Prasad Trading Co.
□ B, was carrying on business of a carrier of goods, having its principal office
at Bombay and branch office at Madras.
□ A entrusted goods to B at Madras to be delivered at Delhi.
□ Goods were transported by B but were damaged.
□ A filed a suit for damages against B in Civil Court at Madras within whose
territorial jurisdiction, the branch office of B was situated and where goods
were entrusted for transport by A.
□ B contended Madras court had no jurisdiction, on the ground that it was
agreed by A that any dispute between the parties to the contract would be
subjected to jurisdiction of Bombay Court\
□ Reliance was placed on Hakam Singh v. Gammon (India), (1971)
□ Negativing the contention that SC observed: The first part of the Explanation
applies only to such a corporation which has its sole or principal office at a
particular place.
□ In that event the courts within whose jurisdiction the sole or principal office
of the defendant is situate will also have jurisdiction inasmuch as even if the
defendant may not be actually carrying on business at that place, it will "be
deemed to carry on business" at that place because of the fiction created by
the Explanation.
□ The latter part of the Explanation takes care of a case where the defendant
does not have a sole office but has a princi- pal office at one place and has
also a subordinate office at another place. The words "at such place"
occurring at the end of the Explanation and the word "or" referred to
above which is disjunctive clearly suggest that if the case falls within the
latter part of the Explanation it is not the Court within whose jurisdiction the
principal office of the defendant is situate but the court within whose
jurisdiction it has a subordinate office which alone shall have jurisdiction "in
respect of any cause of action arising at any place where it has also a
subordinate office".
□ If a corporation desires to be protected from being dragged into litigation at
some place merely because a cause of action arises there it can save itself
from such a situation by an exclusion clause as has been done in the present
case.
□ The linking together of the place where the cause of action arises with the
place where a subordinate office is located clearly shows that the intention of
the legislature was that, in the case of a corporation, for the purposes of
clause (a), the location of the subordinate office, within the local limits of

CPC [DONE] Page 32

 clause (a), the location of the subordinate office, within the local limits of
which a cause of action arises, is to be the relevant place for the filing of a
suit and not the principal place of business.
□ If the intention was that the location of the sole or principal office as well as
the location of the subordinate office (within the limits of which a cause of
action arises) are to be deemed to be places where the corporation is deemed
to be carrying on business, the disjunctive "or" will not be there.
□ Instead, the second part of the explanation would have read "and in respect of
any cause of action arising at any place where it has a subordinate office, also
at such place".
○ LEAVE OF THE COURT
▪ Where no cause of action arises within the local jurisdiction of the court and there
are many defendants and some of them reside outside the jurisdiction of the court,
the suit can be instituted at the place where one of them resides, carries of business
and personally works of gain provided leave of court is obtained.
○ CAUSE OF ACTION
▪ Every suit presupposes the existence of a cause of action because if there is no
cause of action, the plaint will have to be rejected.
▪ Cause of action means a right to sue
▪ It consists of material facts which are imperative for the plaintiff to allege and
prove.
▪ A.B.C. Laminart Pvt. Ltd. v. A.P. Agencies
□ It is a bundle of facts which taken with the law applicable to them gives the
plaintiff a fight to relief against the defendant.
□ It must include some act done by t he defendant since in the absence of such
an act no cause of action can possibly accrue.
□ It is not limited to the actual infringement of the fight sued on but includes all
t he material facts on which it is founded. It does not comprise evidence
necessary to prove such facts, but every fa ct necessary for the plaintiff to
prove to enable him to obtain a decree.
□ Everything which if not proved would give t he defendant a fight to
immediate judgment must be part of t he cause of action. But it has no
relation whatever to t he defence which may be set up by the defendant nor
does it depend upon the character of the relief prayed for by the plaintiff.
▪ Baroda Oil Cakes Traders v. Parshottam
□ It is only material facts which must be proved by the plaintiff before he can
obtain a decree that constitute the cause of action.
□ The word “in part” has not been defined. If a part of cause of action arises
within the local limits of the jurisdiction of a court, it would have jurisdiction
to try a suit, irrespective of the cause of action.
□ Material facts means all facts upon which plaintiff’s cause of action or
defendant’s defence depends.
▪ Udhav Singh v. Madhav Rao
□ All the primary facts which must be proved at the trial by a party to establish
the existence of a cause of action or his defence are material facts.
○ MATERIAL FACTS & PARTICULARS
▪ “Particulars” can be described as “details of the case set up by the party”.
Particulars add details.
▪ The distinction between “material facts” and “material particulars” is important.
The distinction is important because different consequences may ensue from a
deficiency of such facts or particulars.
▪ Failure to plead material facts may lead to an incomplete cause of action and the
suit may be dismissed for want of cause of action. Deficiency of material
particulars may not result in dismissal of suit.
○ WHOLLY OR IN PART ARISES
▪ State of Bihar v. Oriental Coal Co. (1972)
□ The plaintiff-company having its registered office at Calcutta paid sales tax to
State of Bihar by cheques which were encashed in Calcutta.
□ An appeal against payment was allowed by the appellate authority in
Calcutta. When an application for refund of the amount was rejected a suit
was filed in the High Court of Calcutta invoking its jurisdiction on three
grounds:
 Payment was made in Calcutta

CPC [DONE] Page 33

  Payment was made in Calcutta
 Order of refund was passed by appellate authority in Calcutta
 Registered office of the company was in Calcutta
□ Considering various provisions of the Bihar Sales Tax Rules, 1949, and
holding that the High Court of Calcutta had no territorial jurisdiction to
entertain the suit, the Supreme Court observed that ”the entire cause of action
in respect of the claim for the refund on the basis of the appellate authority’s
order arose only within the State of Bihar and no part of that cause of action
arose outside Bihar.
□ The fact that the plaintiff based his claim on three alternative grounds, for
one of which alone a part of the cause of action can at best be said to have
arisen in Calcutta but not for others, cannot confer jurisdiction on the
Calcutta High Court to try the suit on the basis of grounds in respect of which
no part of the cause of action arose in Calcutta. The cause of action, within
the contemplation of law is that which relates to a tenable plea.”
○ SUITS ON CONTRACT
▪ In a suit based on contracts, the cause of action arises at the place
□ where the contract was made
□ where the contract was to be performer or performance thereof completed
□ where money was payable
▪ The place where cause of action arises in respect of a contract must be determined
in the light of the terms of the original contract and not by referring to subsequent
negotiations.
▪ Suits for Accounts – The cause of action for filing a suit for accounts against an
agent arises where the contract of agency is made or where the accounts are to be
rendered or payment is to be made by the agent.
▪ Debtor and Creditor – Under Common Law, general rules is that in the absence of
a contract to the contrary, the debtor must find his creditor for making payment. In
other words, when place of payment is not specified, the place of payment is the
place where the creditor resides.
▪ Suits on Negotiable Instruments - A Suit on negotiable instruments may be filed
where a promissory note is executed or bill of exchange is drawn, or where it was
accepted or dishonoured, or where such instrument was payable.
▪ Property Suits – A suit for partition and possession of immovable property can be
instituted at the place where such property is situate.
▪ Suit on Torts – Section 19, where torts is committed within local limit of one court
and damage is caused elsewhere, courts at both places have jurisdiction .
▪ Matrimonial Suits – The residence of the parties within the jurisdiction of the
court at the time of institution of the suit.
▪ Suit for Maintenance – by the wife against her husband can be brought at the
place where the parties were married.
▪ Suits between Banker and Customer – See, Delhi Cloth & General Mills Co v.
Harnam Singh (1955)
□ The obligation of a bank to pay the cheques of a customer rests primarily on
the branch at which he keeps his account and the bank can rightly refuse to
cash a cheque at any other branch.
□ A customer must make a demand for payment at the branch where his current
account is kept before he has a cause of action against the bank.
□ The rule is the same whether the account is a current account or whether it is
a case of deposit.
□ This class of case forms an exception to the rule that a debtor must seek his
creditor because, though that is the general rule, there is nothing to prevent
the parties from agreeing, if they wish, that that shall not be the duty of the
debtor.
□ If the bank wrongly refuses to pay when a demand is made at the proper
place and time, then it could be sued at its head office as well as at its branch
office and, possibly, wherever it could be found, though we do not decide
that.
□ Now the rules set out above are not confined to the business of banking. They
are of wider application and have also been applied in insurance cases
OUSTING THE JURISDICTION OF COURT
○ The court has deducted following principles on question as to whether an agreement
between parties would oust the jurisdiction of competent court:

CPC [DONE] Page 34

 ○
between parties would oust the jurisdiction of competent court:
▪ The agreement must be clear and unambigious
▪ Any one-sided declaration would not work
▪ The court must be satisfied that party sought to be bound by the agreement had
knowledge of the same.
▪ Plea of waiver , will have to be examined.
▪ The court mentioned in the agreement must have jurisdiction to entertain the suit
(Hakam Singh case)
▪ The agreement will not be an absolute bar.
▪ A revisional court will not interfere unless there is failure of justice.

SECTION 21 & 21A

- Talks about express bar on appellate and revisionary bar that a plea with regards to jurisdiction
shall not be taken at a later stage and can only be entertained by the executory court at the
earliest stage.
- Idea is to prevent parties to institute multifarious jurisdiction
- Jurisdiction is the most imp part so the defendant should raise it at the most earlier moment.
- 21A further strengthens section 20 by providing for res judicata
- Initially the term "place of suing" was used and confined to territorial jurisdiction. To clarify the
object, the parliament enhanced the scope of section 21 to incorporate clauses (1) (2) and (3).
- There may be two scenarios:
▪ 1: Defect goes to the root of the matter
▪ 2: Defect does not goes to the root of the matter
- Where a plea has not been raised at an early stage, the appellate and revisionary courts will not
entertain the plea of jurisdiction because if allowed would affect the merits of the case
- Bahrain Petroleum Co. v. Pappu (1966)
▪ Held if the defendant allows the trial court to proceed with the judgement without raising
objection as to place of suing and takes the chance of a verdict in his favor, he clearly
waives the objection and will not be allowed consequently to raise it.
- Kiran Singh v. Chaman Paswan (1954)
▪ The policy underlying section 21, ----- read case (earlier done) -- matter of technicality
- Section 21 has application I case where there is a matgter of mere technicality. For example the
district has been reorganized today, the court does not have an idea whether the dispute falls
under which district, the court's decree does not become a nullity
- The defendant has to make a plea
- Two fold objective of Section 21.
▪ To prevent multi litigation
▪ The defendant should be the one raising
- The court has no juris over subject matter, it strikes at the very root and the authority of the
court is questionable.
- Such a defect is so fundamental, that even consent of parties would not cure it.
- Draws a distinction between territorial and subject matter -- technical and fundamental.
- Even at the level of SC, subject matter jurisdiction can be set aside -- no matter if plea has been
taken there.
- However, S.21 will not apply in those cases where the parties have ulterior motives or where
the resources of the court
- ONCG v. Utpal Kumar (1994)
▪ Tenders were invited for opening of a kerosene unit in Gujarat -- the process of
selection/vetting was to be carried out in new Delhi -- now two jurisdiction
▪ Tender of a person was rejected and filed a petition in CAL HC which accepted it and
interim order was passed, a preliminary objection of judication was raised -- no cause of
action nor the plant is to be established nor vetting is being done in CAL HC -- then what
jurisdiction does CAL HC has?
▪ It was contended that even if this Court comes to the conclusion that the High Court of
Calcutta had no jurisdiction, this Court should, in the absence of proof of prejudice,
refuse to interfere with the decision of the High Court unless it is otherwise found to be
erroneous.
▪ The SC found merit in objection and interpreted section21.
▪ SC observed that while the spirit of Section 21 of the Code of Civil Procedure may
support such a submission, we are afraid, the discretion cannot be used in favor of a party
which deliberately invokes the jurisdiction of a court which has no jurisdiction
whatsoever for ulterior motives.

CPC [DONE] Page 35

 whatsoever for ulterior motives.
▪ That would only encourage such type of litigation. The object underlying the provision in
Section 21 is not to encourage such litigants but to avoid harassment to litigants who had
bona fide and in good faith commenced proceedings in a court which is later found to be
wanting in jurisdiction.
▪ In the instant case, we are convinced, beyond doubt, that NICCO did not act bona fide in
moving the Calcutta High Court and, therefore, the submission based on Section 21 must
fail.
- Pathumma v. Kuntalan Kutty (1981)
▪ The court came up with three points summarizing the conditions of S.21
▪ The objection has to be taken in the court of first instance.
▪ It has to be taken at the earliest possible opportunity, in cases where the issues are
settled or before settlement of issues.
▪ There has been consequent failure of justice
▪ All these points must co-exist for application of section 21. Individual application does
not fulfil.

SECTION 21A
- Section 21A of the Code of Civil Procedure (CPC), 1908 prevents parties from challenging the
validity of a decree based on objections regarding the place of suing.
- Key Aspects of Section 21A CPC:
▪ No Fresh Suit on Jurisdictional Grounds – A party cannot file a separate suit to set aside a
decree merely because it was passed in an allegedly incorrect court.
▪ Binding Effect of Decree – If a decree has been passed in a suit, and the issue of
territorial jurisdiction was not raised or was decided against a party, they cannot later
challenge it through a new suit.
▪ Definition of "Former Suit" – The term "former suit" includes any case decided before the
suit in which the validity of the decree is being questioned, irrespective of when the
previous suit was filed.
▪ Objective – This provision ensures finality in litigation and prevents misuse of
jurisdictional technicalities to delay justice.
- Essentially, Section 21A strengthens res judicata principles by barring unnecessary challenges
based solely on territorial jurisdiction issues after a decree has already been passed

CPC [DONE] Page 36

Party To Suits
17 February 2025 10:35 AM

SECTION - 26 & ORDER 4

- Order 26 and Order IV provides that every suit shall be instituted by presentation of a plaint .
- After 1992, sub-section (2) was added which provided for filing an affidavit along with the
plain to verify the contents (true to your knowledge).
- Every suit must be initiated by the presentation of plaint in duplicate or in such manner
prescribed by the CPC by the plaintiff, by his pleader, or by his agent or recognized person.
- Order 1 has various rules which deals with parties to the suit, adding, deleting and substituting
parties, and joinder of parties to a suit

- Essentials of a suit
○ There should be opposing parties
○ There has to be a subject matter in dispute
○ There should be a cause of action
○ A relief should be claimed
- Darshan Singh v. Ram Pal Singh (1992)\
○ Held that it’s an inherent right of a person to bring a suit of civil nature unless it is barred
by a statute.
○ Every civil suit, as far as maintainability is concerned, he is allowed to filed unless there
is an express bar.
○ Relying on the principle if ubi jus ibi remedium.

JOINDER OF PARTIES
ORDER 1
- Order 1 deals with the parties to a suit, the first essential of a suit.
- It also contains provisions for addition, deletion, or substitution of parties, joinder, mis-joinder,
and non-joinder of parties and objection as to misjoinder and non-joinder.
- It also, to some extent, deals with joinder of causes of action. Also, contains provisions
regarding representative suit.
ORDER 1 RULE 1
- Rule 1 provides for joinder of plaintiffs.
- All persons may be joined in one suit as plaintiff where 2 conditions are fulfilled
○ Any right of relief exist; and
○ If such persons brought separate suits, any common question of law or fact would arise.
- Govind Raju v. Alagappa (1926)
○ The court held that the word "and" makes it clear that both the conditions are cumulative
and not alternative.
- Read in consonance with Order 1 Rule 3
○ All persons may join in one suit where multiple parties are jointly and severally liable.
○ All parties may be joined as defendants against whom a right to relief arises
○ However, this right only rises where there is a same series of transaction
○ This rule is read in consonance with joinder of causes of action (O2R3)
○ A person is made a party because there is a cause of action, if there are multiple parties
and there are multiple cause of actions against them, if they are joined (same series
transaction), the parties are also joined automatically.
○ Where causes of action are united, the jurisdiction of the Court as regards the suit shall
depend on the amount or value of the aggregate subject-matters at the date of instituting
the suit.
- Necessary and Proper Party
○ The essential distinction between necessary party and proper party to a suit
▪ A necessary party is one whose presence is indispensable to the constitution of the
suit against whom the relief is sought and effective decree can be passed.
▪ A proper party on the other hand is a party in whose absence an effective decree
can be passed but whose presence is necessary for complete and final decision on
the questions involved in the proceedings.
○ In absence of a necessary party, no effective decree can be passed, while in absence of a
proper party, a decree can be passed so far as it relates to the parties before the court. His
presence, however, enables the court to adjudicate more "effectively and completely"

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 presence, however, enables the court to adjudicate more "effectively and completely"
○ Kasturi v. Iyyam Perumal (2005)
▪ The court laid down two tests for determining the question whether a particular
party is a necessary party to a proceeding.
□ There must be a right to some relief against such party in respect of the
matter involved in the proceeding in question; and
□ It should not be possible to pass an effective decree in absence of such a
party.
○ Thus, in a suit for partition, all sharers are necessary parties. Similarly, a purchaser of
property in a public-auction is a necessary party to the suit for declaration to set aside the
said public auction.
○ Example: A bank auctions off a house due to unpaid loans, and Mr. X buys it. Later, the
original owner challenges the auction, saying it was fraudulent. Mr. X must be included
in the case because he now has a stake in the property.
○ Likewise, a subtenant is only a proper party in a suit for suit for possession by the
landlord against his tenant. Grandsons are proper party to a suit for partition by sons
against their father.
○ A father, F, has ancestral property. His sons, S1 and S2, sue him for partition. Their
children (grandsons G1, G2, etc.) can be added because they also have a future stake, but
the suit can be decided without them.
○ However, of several persons are interested that it is not always necessary that all of them
should be joined as plaintiffs or defendants. R8O1 (Representative Suit) applies to such
suits and it is sufficient if some of them are joinder as plaintiffs or defendants.

- Order 1 Rule 6: Joinder of parties to a contract: If there are separate contracts, rule will not
apply.
- Order 1 Rule 7: You can file a case against those defendants whom the plaintiff is aware about
(If you are not aware about all the people).
- Order 1 Rule 8: Representative suits

RULE 9: Misjoinder and Non-joinder

○ Where a person who is a necessary or proper party has not been named in a suit, it is a
case of non-joinder.
○ When parties are made in contravention of order 1 rule 1 and 3, which means they are
neither necessary or proper parties, it is a case of misjoinder.
○ The general rule is that a suit cannot be dismissed only on ground of non-joinder or
misjoinder of parties. Nor a decree passed by a competent court on merits will be set
aside on ground of misdescription of the defendant.
○ If there are minor technicalities, the suit cannot be dismissed - settled law.
○ However, this rule does not apply in case of non-joinder of necessary party.
○ In case of non-joinder, the court has no option to dismiss the suit. If the person who is
likely to be affected by the decree is not joined as a party in the suit or appeal, it is liable
to be dismissed on that ground alone.
○ Rule 13: Raise at the earliest stage.
○ B. Prabhakar Rao v. State of Andhra Pradesh (1985 - SC)
▪ All the affected person were not joined as parties, When the issue with regards to
joinder was taken, the SC held that the interests of the person who have not joined
as parties were identical to those who were before the court and who are well
represented, therefore, the petition is not liable to be dismissed.
○ Failure to implead the necessary party - will lead to dismissal.
○ Section 47(1): Execution proceedings: No decree can be varied in appeal/revision in case
of joinder and non-joinder unless it affects the merits of the case.
○ Order 1 rule 9 with rule 13 and section 47.
RULE 13: Objections as to non-joinder or mis-joinder of parties
○ All objections on the ground of non-joinder or misjoinder of parties must be taken at the
earliest opportunity, otherwise they will be deemed to have been waived.
○ If the objection as to non-joinder has been taken by the defendant at the earliest possible
opportunity, and the plaintiff fails to add a necessary party he cannot be subsequently
allowed in appeal to rectify the error by applying for amendment. (deemed to have been
waived.)
○ Church of Christ Charitable Trust v. P. Educational Trust (2012 - SC)
▪ Where the plaintiff persists in not impleading a necessary party in spite of
objection, the consequences of non-joinder may follow.

CPC [DONE] Page 38

 objection, the consequences of non-joinder may follow.
RULE 10: Striking out, adding or substituting parties (Suit in name of wrong plaintiff.)
○ Rule 10 (1) of Order I deals with substitution and adding and striking off of parties
○ If after the filing of the suit, the plaintiff discovers that he cannot get the relief he seeks
without joining some other person also as a plaintiff or where it is found that some other
person and not the original plaintiff is entitled to the relief, as prayed for, an application
for addition or substitution of the plaintiff can be made. Such an application, however,
should be filed within a reasonable period.
○ The policy is to decide the real questions in controversy between the parties bypassing the
mere technical objection for defeating a just and honest claim by discouraging puerile
contest on technicalities.
○ The provision, therefore, must be liberally construed so as to advance the cause of justice.
Hence, the power to implead a party can also be exercised by the court suo motu.
○ Three conditions to be satisfied for application of subrule (1) [Adding or substituting
plaintiffs]
▪ The suit has been filed in the name of the wrong person as plaintiff.
▪ Such mistake must be bona fide.
▪ The substitution or addition of plaintiff is necessary for determining the real matter
in dispute.
○ Sub-rule (2) of Rule 10 empowers the court to add any person as a party to the suit on
either of the two grounds:
○ Conditions for subrule (2). The court may strike out or add parties on two grounds.
□ Such person ought to have been joined as plaintiff or a defendant and is not
so joined.
□ Without his present, the question involved in the suit cannot be completely
decided.
○ Two considerations especially will have to be kept in mind before exercising powers,
namely:
▪ It is therefore, for him to chose his opponent from whom he claims relief, and
normally, the court should not compel him to fight against a person whom he does
not want to fight and from whom he claims no relief; and
▪ If the court is satisfied that the present of party is necessary to adjudication,
irrespective of what thew plaintiff wished for, the court can still do it to avoid
multiple litigations. (suo moto)
▪ Anil Kumar v. Shiv Nath (1995)
□ Though the Court may have power to strike out the name of a party
improperly joined or add a party either on application or without application
of either party, but the condition precedent, is that the Court must be
satisfied that the presence of the party to be added, would be necessary
in order to enable the Court effectually and completely to adjudicate
upon and settle all questions involved in the suit.
□ To bring a person as party defendant is not a substantive right but one of
procedure and the Court has discretion in its proper exercise.
□ The object of the rule is to bring on record all the persons who are parties to
the dispute relating to the subject matter so that the dispute may be
determined in their presence at the same time without any protraction,
inconvenience and to avoid multiplicity of proceedings.
▪ The test is not whether the plaintiff object or agrees to addition to the party -- the
question is whether an effective decree could be passed if the person is not added.
▪ Razia Begum v. Sahib Zahdi Anwar (1958)
□ The question of addition of parties under r. 10 of 0. I of the Code of Civil
Procedure, is generally not one of initial jurisdiction of the court, but of a
judicial discretion which has to be exercised in view. of all the facts and
circumstances of a particular case; but in some cases, it may raise
controversies as to the power of the court, in contra distinction to its inherent
jurisdiction, or, in other words, of jurisdiction in the limited sense in which it
is used in s. 115 of the Code;
□ In a suit relating to property in order that a person may be added as a party,
he should have a direct interest as distinguished from a commercial interest in
the subject matter of the litigation
□ Where the subject-matter of a litigation is a declaration as regards status or a
legal character, the rule of present or direct interest may be relaxed in a
suitable case where the court is of the opinion that by adding that party it

CPC [DONE] Page 39

 suitable case where the court is of the opinion that by adding that party it
would be in a better position effectually and completely to adjudicate upon
the controversy.
▪ EFFECTS OF ITS APPLICATION OF R10
□ Where any person is added as defendant as regards him, the suit shall be
deemed to have been instituted from the date he has joined as a party.
□ In case where a defendant is added, the plaint shall be amended and the
amended copies of the summons and the plaint must be served on the new
defendant.

REPRESENTATIVE SUIT [R8O1]

○ All persons interested in a suit ought to be joined as parties to it, so that the matters
involved therein may be finally adjudicated upon and fresh litigation over same matters
may be avoided.
○ A “representative suit” is a suit filed by or against one or more persons on behalf of
themselves and others having the same interest in the suit.
○ Following conditions must exits:
▪ The parties must be numerous
▪ They must have the same interest in the suit
▪ The permission must have been granted or direction must have been given by the
court
▪ Notice must have been issued to the parties whom it is proposed to represent in the
suit
○ The scheme of filing a representative suit thus indicates a four dimensional movement:
▪ action by one party called plaintiff against opposing party called defendant
▪ a matter said to be in dispute
▪ cause of action
▪ Relief
○ T. N. Housing Board v. T. N. Ganapathy (1990)
▪ Residential buildings were allotted by the Housing Board to the applicants who
belonged to low-income group. After settlement of price, excess demand were
made by the Board. The allottees challenged the demand by filing a suit in a
representative capacity.
▪ It was contended that such a suit in a representative capacity is not maintainable as
separate demand notices were issued against each of the allottees, giving rise to
separate cause of action
▪ The SC negatived the contention and held that all of them had the same interest
and, therefore, the suit was maintainable.
▪ The provisions of Order 1 of Rule 8 have been included in the Code in the public
interest so as to avoid multiplicity of litigation.
▪ The condition necessary for application of the provisions is that the persons on
whose behalf the suit is being brought must have the same interest. In other words
either the interest must be common or they must have a common grievances which
they seek to get redressed
▪ In deciding whether such leave is to be granted, the principal consideration that
should weigh with the court is whether it is satisfied that there is sufficient
community of interest as between plaintiffs or the defendants.
▪ Proper notice is to be issued to all the interest parties. Where suit is filed by or
against persons in representative capacity, that fact should be stated in the body of
the plaint as well as title of the suit.
○ Rule 3 B of Order XXIII, CPC: No agreement or compromise in a representative suit
shall be entered into without the leave of the Court expressly recorded in the proceedings;
and any such agreement or compromise entered into without the leave of the Court as
recorded shall be void.
○ Before granting such leave, the Court shall give notice in such manner as it may think fit
to such persons is as may appear to it to be interested in the suit.

CONDUCT OF SUIT (Rule 8A)

○ Rule 8-A empowers the court to permit a person or body of persons interested in any
question of law in issue in any suit to present his or its opinion before the court and to
take part in the proceedings in the suit.
○ This power is discretionary and cannot be claimed as a matter of right.
○ Under Rule 11, the court may give the conduct of suit to such person as it deems fit and

CPC [DONE] Page 40

○ Under Rule 11, the court may give the conduct of suit to such person as it deems fit and
under Rule 12 the plaintiff or the defendant may authorize on or more of them to appear,
plead or act for them.
○ Explanation VI to Section 11, where a representative suit has been decided, such a
decision would operate as res judicata.

CPC [DONE] Page 41

Frame of Suit - Order 2
18 March 2025 12:14 AM

FRAME OF SUIT
- Order 2 deals with frame of suit.
- It provides splitting of claims, It also provides for joinder of cause of action and
objections as to mis-joinder and non-joinder.
- Every suit must include the whole of the plaintiff’s claim in respect of the cause of
action and “as far as practicable,” all matters in dispute between the parties be disposed
of finally.
- As far as practicable indicate that in each case the court will have to see whether it was
practicable for the plaintiff to frame his suit so as to include a cause of action which he
had omitted or intentionally relinquished.
- Order 2, Rule 2 lays down that every suit must include the whole of the claim to which
the plaintiff is entitled in respect of the cause of action and where the plaintiff omits to
sue for or intentionally relinquishes any portion of his claim, he shall not afterwards be
allowed to sue in respect of the portion so omitted or relinquished

Splitting of claims and splitting of remedies.

○ It is based on cardinal principle that the defendant should not vexed twice for the
same cause.
○ Deva Ram v. Ishwar Chand
▪ If a Plaintiff is entitled to several reliefs against the Defendant in respect of
the same cause of action, he cannot split up the claim so as to omit one part
of the claim and sue for the other.
▪ If the cause of action is the same, the Plaintiff has to place all his claims
before the Court in one suit as Order II, Rule 2 is based on the cardinal
principle that the Defendant should not be vexed twice for the same cause".

- In other words, before the bar of Order 2 Rule 2 is invoked, the following three
questions should be asked:
○ Whether the cause of action in the previous suit and the subsequent suit is
identical?
○ Whether the relief claimed in the subsequent suit could have been given in the
previous suit on the basis of the pleadings made in the plaint?
○ Whether the plaintiff omitted to sue for a particular relief on the cause of action
which has been disclosed in the previous suit?
- The test for finding out whether a subsequent suit be barred because of the previous suit
is whether the claim in second suit is in fact, founded on a cause of action which was
the foundation of the former suit. If the answer is in the affirmative, the bar of Order 2,
Rule 2 would apply.
- But if it is the negative, it would not be attracted.
- Gurbux Singh v. Bhura Lal
○ In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should
succeed the defendant who raises the plea must make out
▪ That the second suit was in respect of the same cause of action as that on
which the previous suit was based
▪ That in respect of that cause of action the plaintiff was entitled to more than
one relief.
▪ That being thus entitled to more than one relief the plaintiff, without leave
obtained from the Court, omitted to sue for the relief for which the second
suit had been filed.

Difference between Splitting of Claims and Res Judicata

- Res judicata bars filing of a fresh suit. When splitting claims, we check whether the
claims are valid.

CPC [DONE] Page 42

 claims are valid.
- Prevents the plaintiff from raising a claim which he should have claimed previously.
- Res judicata ensures finality of judgment, splitting of claims prevents piecemeal
litigation by barring form claiming reliefs separately arising out of the same transaction.
- Res judicata talks about those matters which are directly and substantially in issue in the
former suit, in splitting of claims, if the plaintiff omits the claim without leave of the
court, they are barred from filing a subsequent suit for the omitted claim.
- The objective of Res judicata is to have an end to litigation and the objective of splitting
of claims is to prevent vexatious litigation.

PRINCIPLES APPLICABLE
- Mohd. Khalil v. Mahbub Ali (1947)
○ The correct test in cases falling under Order 2, Rule 2 is “whether the claim in the
new suit is in fact founded upon a cause of action distinct from that which was the
foundation of former suit.
○ The cause of action means every fact which will be necessary for the plaintiff to
prove if transversed in order to support his right to the judgment
○ If the evidence to support the two claims are different, then the cause of action are
also different
○ The causes of action in the two suits may be considered to be the same if in
substance they are identical
○ The cause of action has no relation whatever to the defence that may be set by the
defendant nor does it depend upon the character of the relief prayed for by the
plaintiff. It refers….to the media upon which the plaintiff asks the court to arrive
at a conclusion in his favour

JOINDER OF CAUSE OF ACTION RULE 3 and 6

- These two provisions, namely, Order 1 Rule 3 and Order 2 Rule 3 if read together
indicate that the question of joinder of parties also involves the joinder of causes of
action.
- The simple principle is that a person is made a party in a suit because there is a cause of
action against him and when causes of action are joined, the parties are also joined.
- Gurbux Singh v. Bhura Lal

CPC [DONE] Page 43

Summons - Order 5
15 April 2025 10:38 AM

SUMMONS
- The intimation that a suit has been instituted against the defendant by court is referred
as “summons”

ESSENTIALS [RULES 1-2]

○ Every summons shall be signed by the judge or such officer appointed by him and
shall be sealed with the seal of the court and must be accompanied by a plaint.
▪ Order 5 deals with summons to the defendant while Order 16 delas with
summons to witnesses.
▪ Defendant is called upon to respond from 30 days from the date of service of
summons.
▪ No summons, however, will be issued by the court if, at the time of
presentation of plaint, the defendant is present and admits the plaintiff’s
claim.

RULE 3 - APPEARANCE IN PERSON

- A defendant to whom a summons has been issued, may appear
○ In person
○ By a pleader duly instructed able to answer all material questions relating to the
suit
○ By a pleader accompanies by some person able to answer all such questions
- The court, however, may order the defendant or plaintiff to appeal in person

RULE 4 - EXEMPTION FROM APPEARANCE IN PERSON

- Read with Section 132 and 133
- No party shall be ordered to appear in person:
○ unless he resides
▪ within the local limits of the court’s ordinary original jurisdiction; or
▪ outside such limits, but at a place less than
□ 50 miles; or
□ (ii) 200 miles (where public conveyance is available) from the
courthouse; or
○ who is a woman not appearing in public
○ who is entitled to exemption under the Code

RULES 5-8 : CONTENTS OF SUMMONS

- Summons should contain a date which is fixed for settlement of issues or for final
disposal of the suit.
○ For final disposal, the defendant shall be ready with all sorts of witnesses which
he has at his disposal.
○ He should produce all of them
- The court must give sufficient time to the defendant to appear and answer all the
questions on a day fixed by the court.
- The summons should also contain an order to the defendant to produce all documents or
copies thereof in his possession or power upon which he intends to rely on in support of
his case.

MODES OF SERVICE OF SUMMONS [ R 9-30]

- There are five modes dealt under Rules 9 to 30
○ Personal and Direct Service
▪ Rules 10-16 and 18

CPC [DONE] Page 44

 ▪ Rules 10-16 and 18
○ Service by Court
▪ Rule 9
○ Service by Plaintiff
▪ Rule 9A
○ Substituted Service
▪ Rule 17, 19 and 20
○ Service by Post

PERSONAL AND DIRECT SERVICE

○ The summons must be served on the defendant in person or by an authorised
representative wherever possible.
○ If the defendant is absent from his residence at the time of service of summons,
the summons may be served on any adult member or female member of the
defendant’s family.
○ A servant cannot be said to be a family member.
○ Where there are two or more defendants, the summons should be served on each
defendant.
○ The service of the summons should be made by delivering a copy of the
summons. After that, the serving officer must make an endorsement on the
original summons regarding the delivery of the summons.

SERVICE BY COURT
○ When a defendant is residing within the court’s jurisdiction, the summons shall be
served through the court officer or any approved courier service.
○ Additionally, summons can be delivered via registered post, speed post with
acknowledgment due (RPAD), courier service, fax, message, email service, or any
other permissible means of transmission.
○ If the summons is properly addressed, prepaid, and sent by registered post
acknowledgment due (RPAD), there will be a presumption of valid service even
without an acknowledgment slip.
○ Where the defendant is residing outside the court’s jurisdiction, the summons will
be served through an officer of the court within whose jurisdiction such defendant
resides.

SERVICE BY PLAINTIFF
○ Under Order V Rule 9A, the court may also authorise the plaintiff to serve the
summons, in addition to the service of summons carried out by the court.

SUBSTITUTED SERVICE
○ Substituted service can be done in the following circumstances:
▪ If the defendant or his agent refuses to sign the acknowledgement, or if the
serving officer is unable to locate the defendant after due diligence and there
appears to be no chance of finding him, the service of summons can be done
by fixing a copy of the summons on the outer door or some conspicuous
(noticeable) part of the house in which the defendant resides or carries on
business or personally works for gain.
▪ Where the court is satisfied that the defendant is avoiding service of
summons or the summons cannot be served on the defendant in an ordinary
way, the service may be achieved either by affixing a copy of the summons
in the conspicuous place in the courthouse and also where the defendant last
resided, carried on a business, or where he personally worked for gain or in
such manner as the court thinks fit.
○ The serving officer must then return the original summons to the issuing court
with an endorsed report detailing the circumstances of affixing the copy, including
the name and address of any person who identified the premises and witnessed the
affixation.
○ If the court is satisfied, based on the affidavit of the serving officer or their

CPC [DONE] Page 45

 ○ If the court is satisfied, based on the affidavit of the serving officer or their
examination on oath, that the summons has been properly served, it may declare
that the summons has been duly served or conduct further inquiry as deemed
necessary.
○ In Basant Singh vs Roman Catholic Mission (2002), the court stated that one
must remember that this is not a regular mode of service. Hence it should not
normally be allowed and should only be used as the last resort.

SERVICE BY POST
○ When the court receives an acknowledgement purporting to be signed by the
defendant or his agent, or when the defendant or his agent refuses to accept
delivery of the summons when it is tendered to him, the court issuing the
summons shall declare that the summons had been properly served.

SERVICE OF SUMMONS IN SPECIAL CASES [RULES 21-30]

- If the defendant resides in another state or outside the jurisdiction of the court issuing
summons, the court may send the summons to such court in whose jurisdiction the
defendant resides to serve him.
- According to Section 29, if any foreign summons has to be served, then it must be sent
to the court in the territories where the code applies, and they will further serve the
summons as if it has been issues by them.
- If summons has to be issued in presidency towns, then it may be sent to the small
causes court of that particular jurisdiction.
- If the defendant does not live in India and has no agent then according to Rule 25, the
court can serve summons by way of post, fax, email, or other appropriate means. Also,
by a political agent or through the court of that country, which has powers and authority
to serve the summons as given under Rule 26 of the order.
- If the defendant is a public officer, a railway officer, or a servant of the local authority,
then the summons can be served through the head of their department.
- If the defendant is a convicted prisoner, then summons can be served through the officer
in charge of the prison.
- In case the defendant is a company or a corporation, the summons may be served to the
secretary, director, or principal officer of the company of the company or through post
to the registered address of the company or where it carries on business.
- If the defendant is a soldier, airman, or sailor, then summons can be sent through their
commanding officer.
- If the defendants are partners in a firm, then it must be served to any one of the partners,
but if the partnership is dissolved before the suit has been instituted, then every partner
must be served summons.
- The court issuing summons also has the power to substitute it with a letter of request,
which will contain the same contents and info as summons. This will be done for any
person depending upon the position or office held by such person.

OBJECTIONS AS TO SERVICE OF SUMMONS

- An objection as to service of summons should be raised at the earliest possible
opportunity. If not taken, it is deemed to have been waived.
- It has been held that there is distinction between non-service of notice and procedural
irregularity in service of notice
- In the case of former category of cases, all consequential actions would be rendered bad
in law whereas in the case of latter category of cases, consequential actions would be
sustained unless he is able to show substantial prejudice due to procedural lapse in
making service to him
- It depends upon the facts of each case whether procedural lapse complained of has
cause prejudice to the applicant

Procedural irregularity
- In case of non-issuance, the consequential actions are treated as bad in law.

CPC [DONE] Page 46

 - In case of non-issuance, the consequential actions are treated as bad in law.
- If there is mere procedural irregularity, it can be rectified
- The consequential actions would be rendered bad in la

Imoprtant
- Order 5
○ Five modes of issuance
○ What amounts to valid service of summons \
○ Substituted service
○ Cases in whi8ch the court may decide to opt for substituted summons
○ What is the impact of refusal to accept summons by the defendant
○ Discuss key provisions regarding summons under CPC
○ Distinction between non-serving of summons and mere procedural irregularity in
issuance of summons.

CPC [DONE] Page 47

PLEADINGS - ORDER 6
03 April 2025 10:46 AM

INTRODUCTION
- Pleadings are statements in writing drawn up by parties to the suit. They are the
foundation of litigation.
- Sole object of pleadings is to inform the parties as to lis before the court.
- Pleadings should be construed liberally.
- ORDER 6 deals with pleadings in general.

RULE 1: DEFINITION
- Pleadings is defined as “Plaint” or “Written Statement”.
- Pleadings are statement in writing drawn up and filed by each party to a case, stating
what his contentions will be at the trial and giving all such details as his opponent needs
to know in order to prepare his case in answer
- A plaintiff’s pleadings is his plaint, which is a statement of claim in which he sets out
his cause of action with all necessary particulars.
- A defendant pleading is his written statement, a defence in which the defendant deals
with every material fact alleged in the plaint and also states new facts in his favour,
adding such legal objections as he wishes to take to the claim.

OBJECT
- The whole object is to bring parties to definite issues and to diminish expense and delay
and to prevent surprise at the hearing. A party is entitled to know the case of his
opponent so that he can meet it.
- The sole object of pleadings is to
○ ascertain the real disputes between the parties
○ narrow down the area of conflict and to see where the two sides differ,
○ preclude one party from taking the other by surprise and to prevent miscarriage of
justice.

Sayad Muhammad v. Fatteh Muhammad

○ Whatever system of pleading may exist, the sole object of it is that each side may
be fully aware to the questions that are about to be argued in order that they may
have opportunity of bringing forward such evidence as may be appropriate to the
issues.

Ganesh Trading Co. v. Moji Ram

○ Provisions relating to pleadings in civil cases are meant to give to each side
intimation of the case of the other so that it may be met to enable courts to
determine what is really at issue between parties, and to prevent deviations from
the course which litigation on particular causes of action must take

Virendra Kashinath v. Vinayak Joshi

○ The object of the rule is twofold: First, is to afford the other side intimation
regarding the particular facts of his case so that they may be met by the other side.
○ Second, is to enable the court to determine what is really the issues between the
parties.

IMPORTANCE
- Pleadings are guide for the proper mode of trial.
- They demonstrate upon which party the burden of proof lies, and who has the right to
open the case.
- They also lay down the limit on the relief that can be granted by the court.
- It is settled proposition of law that a party has to plead his case and substantiate it by
leading sufficient evidence. If the pleadings are not complete, the court is under no

CPC [DONE] Page 48

 leading sufficient evidence. If the pleadings are not complete, the court is under no
obligation to entertain pleas raised by him.
- Every litigant is expected to state the truth before a court of law, whether in his
pleadings, affidavits or evidence.

RULE 2 - BASIC RULES OF PLEADINGS

- Sub-rule I of Rule 2 lays down the fundamental principle of pleadings
- On analysis, the following general principles emerge:
○ Pleadings should state facts and not law.
○ The facts stated should be material facts
○ Pleadings should not state the evidence; and
○ The facts should be stated in a concise form.

1. FACTS AND NOT LAW

○ The first principle of pleadings is that they should state only facts and not law.
○ It is duty of the parties to state only the facts on which they rely upon for their
claims. It is for the court to apply the law to the facts pleaded.
○ Thus, existence of a custom or usage is a question of fact which must be
specifically pleaded. Similarly, intention is also a question of fact and it must be
pleaded.
○ Again, waiver or negligence is a plea of fact and must be pleaded in the pleading.
○ But a plea about maintainability of the suit raises a question of law and need not
be pleaded
○ A mixed question of law and fact, however, should be specifically pleaded.
Similarly, a point of law which is required to be substantiated by facts, should be
pleaded with necessary facts.
State of Rajasthan v. Rao Raja Kalyan Singh
▪ It was held that plea of maintainability is a question of law and need not be
pleaded.
▪ Mixed questions of law and fact should be specifically pleaded
▪ Any point of law which has to be substantiated by facts should also be
pleaded.

2. MATERIAL FACTS
○ The second principle of pleadings is that they should contain a statement of
material facts and material facts only.
○ Though the expression “material facts” has not been defined in the Code, it means
all facts upon which the plaintiff’s cause of action or the defendant’s defence
depends.
○ In other words all those facts which must be proved in order to establish the
plaintiff’s right to relief claimed in the plaint or the defendant’s defence in the
written statement.
○ Udhav Singh v. Madhav Rao Scindia
○ The Supreme Court has defined the expression “material facts” in the
following words.
○ All the primary facts which must be proved at the trial by a party to establish
the existence of a cause of action or his defence are material facts
○ Virender Nath v. Satpal Singh
○ The phrase ‘material facts’, therefore, may be said to be those facts upon
which a party relies for his claim or defence. In other words, ‘material facts’
are facts upon which the plaintiff's cause of action or the defendant’s
defence depends.
○ What particulars could be said to be ‘material facts’ would depend upon the
facts of each case and no rule of universal application can be laid down.
○ It is, however, absolutely essential that all basic and primary facts which
must be proved at the trial by the party to establish the existence of a cause
of action or defence are material facts and must be stated in the pleading by
the party.

CPC [DONE] Page 49

 the party.
○ A distinction between 'material facts' and 'particulars', however, must not be
overlooked.
○ 'Material facts' are primary or basic facts which must be pleaded by the
plaintiff or by the defendant in support of the case set up by him either to
prove his cause of action or defence
○ 'Particulars', on the other hand, are details in support of material facts
pleaded by the party. They amplify, refine and embellish material facts by
giving distinctive touch to the basic contours of a picture already drawn so
as to make it full, more clear and more informative
○ 'Particulars' thus ensure conduct of fair trial and would not take the opposite
party by surprise.
○ Failure to state even a single material fact, hence, will entail dismissal of the
suit or petition. Particulars, on the other hand, are the details of the case
which is in the nature of evidence a party would be leading at the time of
trial.
○ Madiraju Venkata Ramana Raju v. P.R. Reddy
○ That the facts could be said to be “material facts” would depend upon facts
of each case and no rule of universal application can be laid down.
○ It is well established that all basic and primary facts which must be proved at
the trial by the party to establish the existence of a cause of action or defence
are material facts and must be stated in the pleadings by the party.

3. FACTS AND NOT EVIDENCE

○ The pleadings must contain a statement of material facts on which the party relies
but not the evidence by which those facts are to be proved.
○ Facts are of two types
○ facta probanda – the facts required to be proved
○ facta probantia – the facts by means of which they are to be proved
○ The pleadings should contain facta probanda and not facta probantia
○ Virendra Nath v. Satpal Singh
○ It is settled law that pleadings must contain only facta probanda and not
facta probantia.
○ The material facts on which the party relies for his claim are called facta
probanda and they must be stated in the pleadings. But the facts or facts by
means of which facta probanda (material facts) are proved and which are in
the nature of facta probantia (particulars or evidence) need not be set out in
the pleadings
○ They are not facts in issue, but only relevant facts required to be proved at
the trial in order to establish the fact in issue.

4. CONCISE FORM
○ Pleadings must be drafted with brevity and precision.
○ Every pleadings should be divided into paragraphs and sub-paragraphs.
○ Every allegation must be contained in a separate paragraph.
○ Dates, totals and numbers must be mentioned in figures as well as in words.
○ All material facts must be stated in a summary form, as briefly as the nature of the
case requires. Immaterial averments and unnecessary details must be omitted and
material allegations and necessary particulars must be included.

IMPLIED PLEADINGD
- It is a settled law that if a particular plea is not specifically raised but is covered by an
issue frame by the court and the parties are aware of the controversy, the mere fact that
the plea was not expressly taken would not disentitle the party from relying on it if
sufficient evidence is produced.
- In such circumstances, by seeking an amendment in the pleading, implicit can be made
explicit.

CPC [DONE] Page 50

ALTERNATIVE AND INCONSISTENT PLEADING
- The term “alternative” means a party to a litigation may include in his pleadings two or
more sets of facts and claim relief in the alternative.
- In certain cases, parties may seek for alternative reliefs. Under CPC there is no express
bar to raise an alternative plea
- “Inconsistent” on the other hand means mutually repugnant, contradictory,
irreconcilable or destructive. Both cannot stand.
- However, when it comes to inconsistent pleadings, it would be destructive to one
another, it would lead to failure of justice. For example, in a case for ownership, party is
only fine with mesne profit.
- Thus, a suit for possession of property is maintainable on the basis of title or in the
alternative on the basis of lease. In petition for restitution of conjugal rights, alternative
plea for divorce is not barred.

HOW TO CONSTRUE PLEADINGS

- Pleadings have to construed liberally. A mere technicality should not vex the parties.
Madan Gopal v. Mamraj (1977)
○ The SC observed that it is well settled that pleadings are loosely drafted in courts
and the court should not scrutinize the pleading which meticulous care so as to
result in genuine claims being defeated on trivial grounds
Ram Swaroop v. Vishnu Narain Inter College (1987)
○ It is well settled that in the absence of pleading, evidence, if any, produced by the
parties cannot be considered.
○ It is also equally settled that no party should be permitted to travel beyond its
pleading and that all necessary and material facts should be pleaded by the party
in support of the case set up by it.
○ The object and purpose of pleading is to enable the adversary party to know the
case it has to meet. In order to have a fair trial it is imperative that the party should
state the essential material facts so that other party may not be taken by surprise.
○ The pleadings however should receive a liberal construction, no pedantic
approach should be adopted to defeat justice on hair split- ting technicalities.
○ Sometimes, pleadings are expressed in words which may not expressly make out a
case in accordance with strict interpretation of law, in such a case it is the duty of
the Court to ascertain the substance of the pleadings to determine the question.
○ It is not desirable to place undue emphasis on form, instead the substance of the
pleadings should be considered. Whenever the question about lack of pleading is
raised the enquiry should not be so much about the form of the pleadings, instead;
the court must find out whether in substance the parties knew the case and the
issues upon which they went to trial.
○ Once it is found that in spite of deficiency in the pleadings parties knew the case
and they proceeded to trial on those issues by producing evidence, in that event it
would not be open to a party to raise the question of absence of pleadings in
appeal.

RULE 4
- If it is a case of fraud, misrepresentation and undue influence, a clear ground should be
stated in the pleading justifying on what ground it is claimed.
- If fraud is alleged, merely writing that fraud has been committed is not sufficient but we
need to write how was the fraud committed.
Vishnu Doe Narain v. S. Rai (1951)
○ Now if there is one rule which is better established than any other, it is that in
cases of fraud, undue influence and coercion, the parties pleading it must set forth
full particulars and the case can only be decided on the particulars as laid.
○ General averments are insufficient in such cases.
○ General allegations are insufficient even to amount to an averment of fraud of
which any court ought to take notice however strong the language in which they

CPC [DONE] Page 51

 ○
which any court ought to take notice however strong the language in which they
are couched may be, and the same applies to undue influence and coercion

RULE 6
- If a party (plaintiff or defendant) wants to challenge the performance or happening of a
condition precedent, they must clearly mention it in their pleading.
- Otherwise, it is assumed that all necessary conditions precedent have been performed or
have occurred.
- A condition precedent is something that must happen before a legal right or obligation
comes into effect.
- In a contract, delivery of goods may be a condition precedent to payment. So, payment
is not due until the goods are delivered.
- Illustration
○ If you're filing a case, and your claim depends on certain prior events (conditions
precedent) having taken place, then you don’t need to plead each one in detail; it
is implied they occurred.
○ BUT, if the other side wants to argue that a particular condition did not happen,
then they must specifically say so in their reply/pleading.
○ A seller sues a buyer for payment of goods. It is implied that the seller delivered
the goods (a condition precedent to payment). If the buyer wants to say the goods
were never delivered, they must clearly say so in their written statement.

RULE 7
- No pleading shall, except by way of amendment, raise any new ground of claim or
contain any allegation of fact inconsistent with the previous pleadings of the party
pleading the same.
- Once a pleading has been submitted before the court, it cannot be changed.
- Only by way of amendment can be done later on.

RULE 8
- If you are challenging that certain terms and conditions of a contract are not fulfilled,
that does not mean that the whole contract was void or voidable.
- In pleadings, if the specifically targeting the validity of a contract, you need to mention
it specifically. Merely mentioning that there has been non-performance does not
challenge its validity.
- A bare denial of a contract by the opposite party will be construed only has denial of
fact and not the legality, validity or enforceability of such contract.

RULE 9
- Documents need not be set out at length in pleadings unless the words therein are
material

RULE 10
- When a party (plaintiff or defendant) needs to allege malice, fraudulent intent,
knowledge, or any mental state of a person, it is enough to state it as a fact in the
pleading.
- They do not need to describe all the circumstances from which that mental state is to be
inferred.
- Simply state that the particular step has been taken maliciously. It is a question of law
which needs to be determined through evidence.
- In case of malice, fraud, and other condition of mind, the court will decide it through
evidence.,
- It would be sufficient to must mention it in the pleadings.
- Illustration
○ The defendant acted with malice and fraudulent intention. This is enough at the
pleading stage.

RULE 11

CPC [DONE] Page 52

RULE 11
- Need not reproduce the whole notice. Just mention it.
- However, if it is material to set out the terms of the notice, then mention.

RULE 12
- If a party is relying on an implied contract or relationship between persons, they may
state it simply as a fact in their pleadings.
- The letters, conversations, and circumstances from which that contract or relationship is
to be inferred need not be stated in full detail, but should be generally described.

RULE 13 -
- There is no need to mention specifically who has the burden of proof.
- Facts which the law presumes in favour of a party or as to which the burden of proof
lies need not be pleaded

SINGING AND VERIFICATION OF PLEADINGS

RULE 14
○ Every pleading should be signed by the party or one of the parties or his pleader
○ Talks about signing that every pleading should be signed by one of the parties or
their pleader.

RULE 14A -- Very Important

○ A party to the suit should supply his address, he should also supply the address of
the other party
○ If the plaintiff has provided the address and is incomplete, the suit can be stayed.
○ If the defendant has provided the wrong address, then the suit will not
○ As a general rule, every pleading must be signed by the party or by one of the
parties or by his pleader. But if the party is unable to sign, it can be done by any
person authorized by him.
○ The verification must be signed on affidavit by the person verifying and must
contain the date on which and the place where it was signed.
○ A defect in the matter of signing and verification of pleading is merely an
irregularity and can be corrected at a later stage of the suit with the leave of the
court and a suit cannot be dismissed nor an order be passed against a party on
ground of defect or irregularity in signing or verification of plaint or written
statement.

RULE 15
○ Every pleading should be verified on affidavit by the party or by one of the parties
or by a person acquainted with the facts of the case

RULE 16 - STRIKING OUT PLEADINGS

- The court can strike out any pleading if it is unnecessary, scandalous, frivolous or
vexatious or tends to prejudice, embarrass or delay the fair trial of the suit or is
otherwise an abuse of the process of the court.
- Conditions on which a pleading may be strike out
○ Where the pleading is unnecessary
○ Tends to prejudice
○ Abuse in process of the court
- Sathi Vijay Kumar v. T. Singh (2006)
○ The Supreme Court observed that on bare reading of Rule 16, Order 6, it is clear
that the court may order for striking out of pleadings in following cases:
○ where such pleading is unnecessary, scandalous, frivolous or vexatious
○ where such pleading tends to prejudice, embarrass or delay fair trial of suit
○ where such pleading is otherwise an abuse of the process of the court
○ Laid down that the power under rule 16 is extraordinary and must be used
sparingly with extreme care and caution.

CPC [DONE] Page 53

 ○
sparingly with extreme care and caution.
- Important to refer O2R2
○ "Every suit shall include the whole of the claim which the plaintiff is entitled to
make in respect of the cause of action."
○ Deva Ram v. Ishwar Chand (1995)
○ Court after reiterating the fact the plaintiff is supposed to put his claim in
one suit (plaintiff is entitled to several reliefs against the defendant in respect
of the same cause of action) added that it is of the cardinal principle on
which order 2 rule 2 is based upon, is the fact that the defendant should not
be vexed twice for the same cause.
- OBJECTION AS TO PLEADINGS
○ It can be taken at an appropriate place.
○ In case of objection as to pleading, it can be taken at any stage.
○ Appropriate does not mean conclusion of the trial. Maybe at arguments and
evidence stage.

AMENDMENT OF PLEADINGS

RULE 17
- The court can go ahead with amendment of pleading.
- It is divided in two parts
○ Amendment into pleadings
○ Should not be allowed once the stage of proceedings has been initiated
- The first part is discretionary, while the second part is imperative.
- Is Rule 17 exhaustive when it comes to issue to amendment -- NO
- It is not exhaustive irrespective of the fact that the court may deny it, there is Section
151 of the CPC - inherent power of the court.
- Even if Rule 17 is not there, u/s 151 it is the inherent power of the court to allow for
amendment -- to prevent injury.
- Tests -- to see whether amendment of pleading applies to the case or not -- since the
first part is discretionary
○ Whether the amendment sought for is necessary for proper and effective
adjudication of the subject matter in the case.
○ Whether the proposed amendment completely and fundamentally changes the
character of the stance taken by the parties or in other words, put up a new case.
○ Whether by allowing the proposed amendment any right vested in other party is
going to be materially affected.
○ Whether the party concerned has been able to offer a reasonable explanation why
the application could not have been made earlier by the trial court.
- If you look at these 4 which act as a test for amendment, point (a) and (d), if they are
answered in affirmative, the court will allow.
- If the answer for (d) and (c) is negative, the court will not allow.
- Same applied for (b) as well.
- The ultimate test is whether it would cause any injustice to the other parties.
- Divisions
○ When leave to amend can be granted
▪ Kisan Das v. Bithova (1909) (Privy Council)
□ All amendments ought to be allowed if it satisfies two conditions.
 Of not working injustice to the other party
 Of being necessary for determining the real question in
controversy between the parties.
○ When leave to amend cannot be granted
▪ where the amendment is not necessary for the purpose of determining the
real question in controversy between the parties.
▪ if it introduces a totally different, new and inconsistent case or changes the
fundamental character of the suit or defence.
▪ where the effects of the proposed amendment is to take away from the other
side a legal right accrued in his favour.

CPC [DONE] Page 54

 side a legal right accrued in his favour.
▪ Plea for amendment is not raised in good faith
- At what stage
○ Before the 2002 amendment, the parties were free to raise at any stage. Even at
the stage of decree.
○ It was leading to non-ending litigation.
○ The parliament in the 2002 amendment introduced the provide to Rule 17, which
curtails the power of the court by stating that once the trial has commenced
○ Provided the rule may be relaxed when after due diligence the court is satisfied
that the parties were not able to raise.
○ Due Dilligence Test
○ SC emphasised caution while applying this test.
○ Question - Could the P/D, were they not able to find even after going through
anything.
○ Doctrine of Relation Back
▪ Normally once the court approves the leave, the pleading would apply for
the date leave has been granted
▪ However in certain case the court may apply retrospectively as well.
▪ Normally an amendment related to the pleading but this doctrine has been
held to be not absolute, unqualify, or of universal application.
▪ In certain cases the court may order that the amendment maintain effect
from the date an application was made or the amendment was allowed and
not from the date when plaint or written statement was presented.
- Can a party prefer an appeal or revision against an order granting/refusing amending of
pleadings.
○ Because a leave granting or refusing is not a decree, it cannot be appealed.
○ This does not cover under appealable orders under S. 104 read with Order 43.
○ However, a party is free to use revision jurisdiction because such an order
allowing or refusing the leave to amend the pleading is "case decided". -- need to
prove that gross miscarriage of justice has been cause.
- Read Revajeetu Builders and Developers v. Narain Swamy & Sons. (2009)
[Landmark]
○ Amendment on pleadings and all the rules regarding amendment of pleadings has
been summed up.
- Read Rajkumar Gurahara v. S.K. Sarvwagi (2008)
○ On Rule 17

RULE 18 - FAILURE TO AMEND

- Such time period which has been stipulated has to be followed.
- If no time has been mentioned by the court then 14 days' time limit.
- Non follow would not lead to automatic dismissal by the court.

CPC [DONE] Page 55

Plaint - Order 7
23 May 2025 09:03 PM

ORDER 7 - PLAINT

- Read in consonance with Section 26 and Orders 3&5

- A plaint is a statement of claim, a document by presentation of which the suit is
instituted, its object is to state the grounds upon which the assistance of the court is
sought by the plaintiff
- Contents
○ Name of the court where the suit is filed
○ The name description and residence of the plaintiff and the defendant
○ Facts containing cause of action and when it arose
○ Statement underlying the jurisdiction of that court
○ Relief claimed
○ Statement of the valuation of the suit
○ Details of any prior litigation of the parties
- 6 Important consideration
○ Two parties to the suit
▪ There must be two parties to the suit. All particulars, such as name, father’s
name, age, place of residence etc. which are necessary to identify the parties,
must be stated in the plaint
○ Cause of Action
▪ Every suit would presuppose cause of action, in case there is no cause of
action, plaint will be rejected
○ Jurisdiction of the Court
▪ The plaint must state all the facts showing how the court has pecuniary and
territorial jurisdiction over the subject-matter of the suit. Plea of jurisdiction
has to be decided based on averments in the plaint
○ Valuation
▪ The plaintiff must state in the plaint the valuation of the subject-matter of
the suit for the purposes of pecuniary jurisdiction of the court and the court
fees.
○ Limitation (Under Rule 6 -- the application should also specify the period of
limitation has not lapsed and if lapsed - condonation has been granted)
▪ If suit is barred by limitation, it is necessary for the plaintiff to show the
ground of exemption in the plaint (Rule 6)
○ Relief (Can be simple or alternative or general also (in justice good faith -- not a
mandate under cpc to seek general) -- (Mandatory to ask simply or in alternative).
▪ Every plaint must state specifically the relief claimed by the plaintiff either
simply or in the alternative. (Rule 7 -8).
▪ Where the relief is founded on separate and distinct grounds, they should be
stated. Where the plaintiff is entitled to more than one relief in respect of the
same cause of action, it is open to him to claim all or any of such reliefs.
▪ But if he omits, except with the leave of the court, to sue for any particular
relief, he will not afterwards be allowed to sue for the relief so omitted.

RULE 1
- Deals with the particulars to be contained in a plaint. It states that the plaint shall
contain the following particulars: —
○ The name of the court where the suit is brought
○ The name, description and place of residence of the plaintiff
○ The name, description and place of residence of the defendant, so far as they can
be ascertained
○ Where the plaintiff or the defendant is a minor or a person of unsound mind, a

CPC [DONE] Page 56

 ○ Where the plaintiff or the defendant is a minor or a person of unsound mind, a
statement to that effect.
○ The facts constituting the cause of action and when it arose.
○ The facts showing that the Court has jurisdiction.
○ The relief which the plaintiff claims.
○ Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed, or relinquished.
○ A statement of the value of the subject matter of the suit for the purposes of
jurisdiction and of court fees, so far as the case admits.

RULE 2 - IN MONEY SUITS

- Where the plaintiff seeks the recovery of money, the plaint shall state the precise
amount claimed
- But where the plaintiff sues for
○ mesne profits, or
○ an amount which will be found due to him on taking unsettled accounts between
him and the defendant, or
○ movables in the possession of the defendant, or
○ for debts of which the value he cannot,
after the exercise of reasonable diligence, estimate, the plaint shall state approximately
the amount or value sued for.

RULE 3 - WHERE SUBJECT MATTER IS IMMOVABLE PROPERTY

- Where the subject-matter of the suit is immovable property, the plaint shall contain a
description of the property sufficient to identify it, and, in case such property can be
identified by boundaries or numbers in a record of settlement or survey, the plaint shall
specify such boundaries or numbers

RULE 4 - WHEN PLAINTIFF SUES AS REPRESENTATIVE

- Representative suit
- He has to take the permission of the court.
- Where the plaintiff sues in a representative character the plaint shall show not only that
he has an actual existing interest in the subject-matter, but that he has taken the steps (if
any) necessary to enable him to institute a suit concerning it.

RULE 5 - DEFENDANT'S INTEREST & LIABILITY

- The plaint shall show that the defendant is or claims to be interested in the subject-
matter, and that he is liable to be called upon to answer the plaintiff’s demand.

RULE 6 - GROUNDS OF EXEMPTION FROM LIMITATION

- Where the suit is instituted after the expiration of the period prescribed by the law of
limitation, the plaint shall show the ground upon which exemption from such law is
claimed.
- Provided that the Court may permit the plaintiff to claim exemption from the law of
limitation on any ground not set out in the plaint, if such ground is not inconsistent with
the grounds set out in the plaint.

RULE 7 - RELIEF TO BE SPECIFICALLY STATED

- Every plaint shall state specifically the relief which the plaintiff claims either simply or
in the alternative.
- it shall not be necessary to ask for general or other relief which may always be given as
the Court may think just to the same extent as if it had been asked for.
- Same rule shall apply to any relief claimed by the defendant in his written statement.

RULE 8 - RELIEF FOUNDED ON SEPARATE GROUNDS

- Where the plaintiff seeks relief in respect of several distinct claims or causes of action
founded upon separate and distinct grounds, they shall be stated as far as may be
separately and distinctly.

CPC [DONE] Page 57

 separately and distinctly.

RULE 9: ADMISSION OF PLAINT

- Rule 9 lays down the procedure when the plaint is admitted by the court.
- It provides for filing of copies of the plaint by the plaintiff and also requires him to pay
requisite fees for the service of summons on the defendants within seven days.
- Where the Court orders that the summons be served on the defendants in the manner
provided in Rule 9 of Order V, it will direct the plaintiff to present as many copies of
the plaint on plain paper as there are defendants within seven days from the date of such
order along with requisite fee for service of summons on the defendants.

RETURN OF PLAINT
- The provision regarding the return of plaint are provided under the Order 7 Rule
10,10A,10B CPC 1908.
Procedure for returning of plaint
- Where the court in the initial hearing, identifies that it does not have jurisdiction to try
the suit, in terms of order 7 rule 10, subrule 2, following particulars have to be endorsed
on the plaint
○ Date on which the plaint was initially presented
○ Date on which the plain is returned
○ Name of the party which presented the plaint
○ Reasons for returning the plaint
- The hearing has been initiated and the defendant appears before the court
- Once he appears and then the court recognizes it does not have jurisdiction (defendant
raised objection, and merit was found in the submission) rule 10A will apply, where the
following procedure would be followed
○ The plaintiff needs to be informed through registered post or any authorized
manner that the plaint has been returned.
○ The plaintiff needs to appear before the court either personally or through his
counsel
○ The plaintiff has to inform as to where he proposes to file his new plaint after it is
returned by this court.
○ Affixed date would be set up for appearance of both the parties in the competent
court.
○ The court at the request of the plaintiff, may serve notice on both the parties
requiring them to appear before the competent court and intimating them of the
return of plaint.
- According to general civil rule, rule 39, once the plaint has been returned, even the
vakalatmana will be returned to the pleader.
- When a plaint is returned to a pleader or a recognized agent of the plaintiff, the
authority executed in his paper also shall be returned (Rule 39) of General Rules
(Civil), 1986. - Return of Vakalatmana with plaint.
- An order for return of plain is an appealable order, under Order 43 Rule 1(a).

RULE 10B
- Where on an appeal against an order for the return of plaint, the court hearing the appeal
confirms such order:
○ On application of the plaintiff, the court may, while returning the plaint, direct the
plaintiff to file the plaint in the court in which the suit should have been instituted
and fix a date for the appearance of the parties.
- In such a case, it shall not be necessary for the court, in which the plaint filed, to serve
the defendant with the summons. Unless the court in which plaint has been filed, for
reasons to be recorded, otherwise directs.
- The objective of issuing summons is to bring the suit into the knowledge -- since the
defendant already knows -- there is no need to waste the times of the court
- However, if the court thinks the summons are required, the court may do so after
recording reasons.
- Once the plaint has been returned, the stage at which the suit will continue in the

CPC [DONE] Page 58

 - Once the plaint has been returned, the stage at which the suit will continue in the
new forum --
- Joginder Tuli v. S.N. Bhatia (1997)
○ SC held that the suit shall be proceeded from that stage at which it stood
transferred.
- ONGC Ltd v. Modern Constructions (2014)
○ SC explained the very objective of Rule 10.
○ The plain is returned in term of rule 10 only because there is no jurisdiction and
the plaintiff is asked to institute the suit in court of relevant jurisdiction.
○ The plaintiff is entitled to exclude the period during which he prosecuted and case
before the court having no jurisdiction in view of the provisions of Sec 14 of the
Limitation Act, and may also seek adjustment of court fee paid in the court.
○ Held that after presentation before the competent court jurisdiction the plaint is to
be considered as a fresh plaint and the trial has to be conducted de novo even if it
stood concluded before the court having no competence to try the suit.
○ Once the plaint has been the return even when the court would have continued
with the trial, it is immaterial whether examination has happed, merits gone -- just
decree should not have been passed, the suit will start afresh in the new court
- Conflict between above two division bench decisions, matter was referred to larger
bench and in EXL Careers v. Frankfinn Aviation Services Pvt Ltd.
- EXL Careers v. Frankfinn Aviation (2020)
○ It was held that After return of plaint and its presentation before the court of
competent jurisdiction ,the plaint is to be considered as a fresh plaint and the trial
is to be conducted afresh even if it stood concluded before the earlier court

REJECTION OF PLAINT

RULE 11
- The underlying object of Order VII Rule 11 (a) is that, if in a suit, no cause of action is
disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not
permit the plaintiff to unnecessarily protract the proceedings in the suit.
- The provision of Order VII Rule 11 is mandatory in nature. It states that the plaint
“shall” be rejected if any of the grounds specified in clause (a) to (e) are made out.
- If the Court finds that the plaint does not disclose a cause of action, or that the suit is
barred by any law, the Court has no option, but to reject the plaint.

- Dahi Ben v. Arvin Bhai (2020)

○ The court held that underlying objective of Rule 11 is to put an end to sham
litigations so that judicial time is not wasted.
○ The remedy under Rule 11 is an independent and special remedy where the court
is empowered to summarily dismiss a suit without proceeding to record evidence
and conducting a trial if it is satisfied that the grounds under Rule 11 exists under
a particular case.
○ The provision under Rule 11 is mandatory in nature
- Azhar Hussain v. Rajiv Gandhi
○ The whole purpose of conferment of powers under this provision is to ensure that
a litigation which is meaningless, and bound to prove abortive, should not be
permitted to waste judicial time of the court.
- What is the role of the court in rejecting a plaint under Rule 11? Should the court take
all possible steps, like going to the stage of examination of the witness, and then decide
to reject the plaint?
- A. Sreedevi v. Icharapu Ramakrishna Gowda
○ The trial court should insist imperatively on examining the party at the first
hearing so that bogus litigation can be shut down at the earliest stage
- Ponnala Lakshmaiah v. Kommuri Pratap Reddy
○ The Courts need to be cautious in dealing with requests for dismissal of the
petitions at the threshold and exercise their powers of dismissal only in cases
where even on a plain reading of the petition no cause of action is disclosed.

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 where even on a plain reading of the petition no cause of action is disclosed.
○ Upheld A. Sreedevi v. Ramakrishna Gowda
- Can Rule 11 be exercised in a Suo Motu manner? Yes, the court can strike of the
plaint even without the application by the defendant rejecting the plaint under Rule 11.
- Mani v. P. Ramakrishnan
○ The power to strike off the plaint can be exercised even if the defendant did not
file an application to reject the plaint under Order VII Rule 11 CPC
- What is the test to be applied in such a case? (Hardesh Ores (P) Ltd. v. Hede and Co)
○ The plaint should be seen in its entirety
○ The court should not add or substitute any material (It is the substance, and not
merely the form, which has to be looked into. )
○ If the court continues with such a case, would the court be able to pass a decree? If
no, then the plaint needs to be rejected, and if yes, then no need to reject the plaint
- Stage at which power can be exercised
○ A plaint may be rejected at any stage in the proceeding, even before the plaint is
registered till issuance of summons or even before the conclusion of a trial.
[Dahiben v. Arvinbhai Kalyanji Bhansai]
○ Only a part of the claim cannot be rejected and if no cause of action is disclosed,
the plaint as a whole must be rejected. (Roop Lal Sathi Vs. Nachhattar Singh
Gill)
- If the plaint makes out a case indicating a cause of action, then falsity of the claim
would be a matter to be determined at the time of trial and if at all the suit is found to be
vexatious or based on false assertion, then the plaintiff would be liable for
compensatory cost under 35-A of CPC.
- OTHER GROUNDS OF REJECTION
○ The provisions of Rule 11 are not exhaustive and the court has got inherent
powers (u/s 151) to see that vexations litigations are not allowed to take or
consume the time of the court.
○ In appropriate cases, directions can be issued by the High court as well as the
court in which the suit is filed not to entertain the suit. [M. Gurusamy and Anr.
Vs. G. Vijaya and Ors]

DEFECTIVE PRESENTATION OF PLAINT

○ It is well settled that a defective presentation of a plaint, cannot result in the
rejection of the plaint.
○ The grounds on which a plaint can be rejected are listed under O7 R 11CPC.
○ A defect which is curable in nature does not fall within the ambit of O 7 R 11. [K.
Santhanam v. S. Kavitha ]

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Written Statement - Order 8
23 May 2025 10:12 PM

WRITTEN STATEMENT
- A written statement is the pleading of the defendant wherein he deals with every
material fact alleged by the plaintiff in his plaint and also states any new facts in his
favour or takes legal objections against the claim of the plaintiff.
- WHEN IT MAY BE FILED ?
○ Rule 1, Order 8 states that a defendant should within 30 days from the service of
summons on him, present a written statement of his defence.
○ The said period under the proviso to the said rule, can be extended up to 90 days.
○ It had, however, been held that the proviso to Rule 1 is discretionary in nature and
the court has the discretion to allow the defendant to file a written statement
beyond that period by recording reasons
- OUTER LIMIT FOR FILING WS
○ Proviso to Rule 1 as inserted by the Amendment Act, 2002 prescribes outer limit
of 90 days of filing written statement from the date of service of summons on the
defendant.
○ Kailash v. Nankhu
▪ The Supreme Court was called upon to consider whether the time-limit of 90
days prescribed by the proviso to Rule 1 of Order 8 for filing written
statement by the defendant was mandatory or merely directory.
▪ The court held the provision to be directory and permissive
○ Salem Advocates Bar Assn. v. Union of India
▪ In construing this provision, support can also be had from Order VIII Rule
10 which provides that where any party from whom a written statement is
required under Rule 1 or Rule 9, fails to present the same within the time
permitted or fixed by the Court, the Court shall pronounce judgment against
him, or make such other order in relation to the suit as it thinks fit.
▪ In the context of the provision, despite use of the word 'shall', the court has
been given the discretion to pronounce or not to pronounce the judgment
against the defendant even if written statement is not filed and instead pass
such order as it may think fit in relation to the suit.
▪ In construing the provision of Order VIII Rule 1 and Rule 10, the doctrine of
harmonious construction is required to be applied. The effect would be that
under Rule 10 of Order 8, the court in its discretion would have power to
allow the defendant to file written statement even after expiry of period of
90 days provided in Order VIII Rule 1.
▪ There is no restriction in Order 8 Rule 10 that after expiry of ninety days,
further time cannot be granted. The Court has wide power to 'make such
order in relation to the suit as it thinks fit'. Clearly, therefore, the provision
of Order VIII Rule 1 providing for upper limit of 90 days to file written
statement is directory.
▪ Having said so, we wish to make it clear that the order extending time to file
written statement cannot be made in routine. The time can be extended only
in exceptionally hard cases
▪ While extending time, it has to be borne in mind that the legislature has
fixed the upper time limit of 90 days. The discretion of the Court to extend
the time shall not be so frequently and routinely exercised so as to nullify the
period fixed by Order VIII Rule 1.
▪ In case of delay in filing a written statement, costs can be awarded by the
court.

RULE 1: WRITTEN STATEMENT

- (1) The defendant shall, at or before the first hearing or within such time as the Court
may permit, present a written statement of his defense.

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 may permit, present a written statement of his defense.
- (2) Save as otherwise provided in rule 8A, where the defendant relies on any document
(whether or not in his possession or power) in support of his defence or claim for set-off
or counter-claim, he shall enter such documents in a list, and shall,-
○ If a written statement is presented , annex the list to the written statement :
provided the where the defendant, in his written statement, claims a set-off or
counter claim based on a document in his possession or power, he shall produce it
in a court at the time of presentation of the written statement and shall at the same
time deliver the document or copy thereof to be filed with the written statement;
○ If a written statement is not presented, present the list to the court at the first
hearing of the suit.
- (3) Where any such document is not in the possession or power of the defendant, he
shall, wherever possible, state in whose possession or power it is
- (4) If no such list is annexed or presented, the defendant shall be allowed such further
period for the purpose as the court may think fit.
- (5) A document which ought to be entered in the list referred to in sub-rule(2), and
which is not so, entered, shall not, without the leave of the court, be received in
evidence on behalf of the defendant at the hearing of the suit.
- (6)Nothing in sub-rule (5) shall apply to documents produced for the cross examination
of the plaintiff’s witnesses or in the answer 3 to any case set up by the plaintiff
subsequent to the filing of the plaint, or handed over to a witness merely to refresh his
memory.
- (7) Where a court grants a leave under sub-rule (5), it shall record its reasons for doing
so, and no such leave shall be granted unless good cause is shown to the satisfaction of
the court for the nonentry of the document in the list referred to in sub-rule (2).

SPECIAL RULES OF DEFENCE

- Over and above the general defences, Rules 2 to 5 and 7 to 10 deal with special points
regarding filing of a written statement.

RULE 2 : NEW FACTS MUST BE SPECIFICALLY PLEADED

○ The defendant must raise by his pleading all matters which show the
▪ suit is not maintainable, or
▪ that the transaction is either void or voidable in law, and
▪ all such grounds of defence as,
if not raised, would be likely to take the opposite party by surprise, or would raise
issues of fact not arising out of the plaint, as, for instance, fraud, limitation,
release, payment, performance, or facts showing illegality.

RULE 3 : DENIAL TO BE SPECIFIC

○ It shall not be sufficient for a defendant in his written statement to deny generally
the grounds alleged by the plaintiff, but the defendant must deal specifically with
each allegation of fact of which he does not admit the truth, except damages.

RULE 4 : EVASIVE DENIAL

○ Where a defendant denies an allegation of fact in the plaint, he must not do so
evasively, but answer the point of substance.
○ Thus, if it is alleged that he received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount, but he must deny that he
received that sum or any part thereof, or else set out how much he received.
○ And if an allegation is made with diverse circumstances, it shall not be sufficient
to deny it along with those circumstances.

RULE 5 : SPECIFIC DENIAL

○ Every allegation of fact in the plaint, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading of the defendant, shall be
taken to be admitted except as against a person under disability (Any factor that
would have prevented the defendant from claiming the plea previously.). Provided

CPC [DONE] Page 62

 would have prevented the defendant from claiming the plea previously.). Provided
that the Court may in its discretion require any fact so admitted to be proved
otherwise than by such admission.
○ Where the defendant has not filed a pleading, it shall be lawful for the Court to
pronounce judgment on the basis of the facts contained in the plaint, except as
against a person under a disability, but the Court may, in its discretion, require any
such fact to be proved.
○ In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2),
the Court shall have due regard to the fact whether the defendant could have, or
has, engaged a pleader.
○ Whenever a judgment is pronounced under this rule, a decree shall be drawn up in
accordance with such judgment and such decree shall bear the date on which the
judgment was pronounced.]

Gian Chand v. Rattan Lal

○ The Supreme Court held that Rules 3, 4 and 5 form an “integral code” dealing
with the manner in which allegations of the facts on the plaint should be
transversed and the consequences flowing from its non-compliance.

Badat & Co. v. East India Trading Co.

○ These three rules form an integrated code dealing with the manner in which
allegations of fact in the plaint should be traversed and the legal consequences
flowing from its non- compliance
○ The written-statement must deal specifically with each allegation of fact in the
plaint and when a defendant denies any such fact, he must not do so evasively, but
answer the point of substance.
○ If his denial of a fact is not specific but evasive, the said fact shall be taken to be
admitted. In such an event, the admission itself being proof, no other proof is
necessary

REJOINDER
- After the plaintiff has filed his plaint, and the defendant has filed it’s written statement,
and a copy of the same is supplied to the plaintiff, the plaintiff is given an opportunity
to file a reply to the averments made in the written statement of the defendant, this is
called a rejoinder.
- It is like a response to the written statements of the defendant.

SET-OFF & COUNTERCLAIM [RULE 6]

- Set-off is a concept or a device under the CPC available only to the defendant in a civil
suit. It allows the defendant to reduce or nullify the plaintiff’s claim by asserting that
the plaintiff also owes money to the defendant — and both debts can be adjusted
against each other.
- It is an device by which any debt or money which are allegedly due from the defendant
can be adjusted and settled against debts owed to the defendant by the plaintiff.
- Both the parties fill the same character i.e., the claim is between the same parties in the
same legal capacity.

RULE 6 : WHEN SET-OFF CAN BE AVAILED BY THE DEFENDANT

○ The sum must be due from the plaintiff to the defendant, and the sum is definite in
character.
○ The sum must be legally recoverable. (Not gambling money)
○ The sum shall not exceed the pecuniary jurisdiction of the court before which the
suit is instituted.

TYPES OF SET OFF

○ Legal Set-off [Governed by Rule 6(1)]
○ Equitable Set-off [Governed by common law principles & where amount is

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 ○ Equitable Set-off [Governed by common law principles & where amount is
uncertain]

Maharashtra State Farming Corporation v. Belapur Sugar & Allied Industries

○ It was held that in case of equitable setoff, it depends on the discretion of the court
whether it wants to consider the claim of the defendant or not.
○ The defendant may or may not be asked to pay court fees
○ The amount claimed may arise out of the same transaction and must not be barred
by the period of limitation.

Particulars Legal Set-Off Equitable Set-Off

Concept Discussed under Order 8 Rule 6(1) Based on the concept
of equity
Legal Right Can be claimed as a matter of legal right Cannot be claimed as
a matter of legal
right, but rather
discretionary.
Recovery of The amount should be ascertained and The amount cannot
Money should be within the pecuniary jurisdiction be ascertained.
of the court in which the suit is instituted.
Court Fee Paid by the defendant Depends on the
discretion of the
court
Limitation period The limitation period would be applicable It is discretionary and
and the court may bar the defendant from the plea can even be
raising the plea of Set-off. raised beyond the
limitation period.

COUNTER CLAIM [RULE 6C]

- A counter-claim is a cross-suit filed by the defendant against the plaintiff in the same
legal proceeding.
- It is a separate and independent claim from that of the plaintiff — meaning the
defendant is not just defending against the plaintiff’s suit, but is actively suing the
plaintiff back for something else.
- It is a positive claim made by the defendant against the plaintiff in relation to a cause of
action that arose before or after the plaintiff filed the suit, but must be filed before the
written statement deadline under Order 8 Rule 1.
- The counter-claim is made in the written statement or along with it AND the court must
have the pecuniary jurisdiction to try the counter-claim.
- The defendant can ask for any legal relief as if they were the plaintiff in a separate suit.
- Under Order 8 Rule 6C, if the plaintiff believes that the counter-claim is too
complicated, unrelated, or would be better handled in a separate suit, the plaintiff can
apply to the court for trial of the counter-claim as a separate case.

Ashok Kumar v. Surender Agnihotri

○ The court in this case allowed the filing of a counterclaim under the following
circumstances:
▪ The counterclaim can be filed before or after the initiation of the lawsuit.
▪ It should be filed before the defendant submits their written statement.
▪ It should not be filed before the time limit set for delivering the defendant's
defense expires.

Illustration
○ Plaintiff sues Defendant for ₹1,00,000 due under a supply agreement.
○ Defendant replies with a counter-claim for ₹50,000 in damages for defective

CPC [DONE] Page 64

 ○ Defendant replies with a counter-claim for ₹50,000 in damages for defective
goods delivered under the same agreement.
○ Now, the court will adjudicate both the plaintiff's claim of ₹1,00,000 and the
defendant's counter claim of ₹50,000 together.
○ If both the claims succeed, the defendant pays only ₹50,000.

Particulars Set-Off Counterclaim

Nature It is a statutory defense It is initiated by the
defendant
Basis It must arise compulsorily out of the same May not arise in the
transaction. same transaction, but
should relate to some
cause of action.
Purpose It is to create a defense against the It has to be treated as
plaintiff's claim and has to be pleaded in a separate and
the written statement. independent claim. It
can be separate
document and may
not be present in the
written statement.
Scope Cannot exceed plaintiff's claim. May exceed the
claim of the plaintiff
Common point Cannot go beyond the pecuniary Cannot go beyond
jurisdiction of the court. the pecuniary
jurisdiction of the
court.

A plea of set-off in effect admits the existence of the claim, and sets up a cross claim as
being ground on which the person against whom the claim is brought is excused from
payment and entitled to judgment on the plaintiff’s claim. Until judgment in favor of
the defendant on the ground of set off has been given the plaintiff’s claim is not
extinguished.”

In Set-off the suit must be for recovery of money and the claim must be for a mutual
debt but it is not the case of a counterclaim.

Set-off must arise out of same transaction but the counterclaim is not required to arise
out of same transaction.

CPC [DONE] Page 65

Foreign Judgments
23 May 2025 11:02 PM

FOREIGN JUDGMENTS
- 2(6) "foreign judgment" means the judgment of a foreign Court.
- In other words, a foreign judgment means an adjudication by a foreign court on a matter
before it.
- 2(5) "foreign Court" means a Court situate outside India and not established or
continued by the authority of the Central Government;

- A foreign judgment can be enforced in India in one of two ways

○ By filing an execution petition under Section 44 of the CPC
○ By filing a suit upon the foreign judgment/decree

BY FILING AN EXECUTION PETITOIN U/S 44 CPC

○ Judgment from courts in "reciprocating territories" can be enforce directly by
filing an execution petition u/s 44 of the CPC in an Indian Court.
○ “Reciprocating territory” is defined in Explanation 1 to Section 44A of India’s
Civil Procedure Code as: Any country or territory outside India which the Central
Government may, by notification in the Official Gazette, declare as a
reciprocating territory.
○ The List of the Reciprocating Territories as per the Provisions of Section 44 A of
the Code of Civil Procedure, 1908, is as under :
▪ United Kingdom
▪ Singapore
▪ Bangladesh
▪ UAE
▪ Malaysia
▪ Trinidad & Tobago
▪ New Zealand
▪ The Cooks Island (including Niue) and The Trust Territories of Western
Samoa
▪ Hong Kong
▪ Papua and New Guinea
▪ Fiji
▪ Aden

BY FILING A SUIT UPON THE FOREIGN JUDGMENT

○ Judgments from “non-reciprocating territories,” such as the United States, can be
enforced only by filing a law suit in an Indian Court for a Judgment based on the
foreign judgment.
○ The foreign judgment is considered evidentiary. The time limit to file such a law
suit in India is within three years of the foreign judgment.

Moloji Nar Singh Rao v. Shankar Saran

- The Supreme Court held that a foreign judgment which does not arise from the order of
a superior court of a reciprocating territory cannot be executed in India.
- It ruled that a fresh suit will have to be filed in India on the basis of the foreign
judgement.

- Therefore Under S. 44A of the CPC, a decree of any of the Superior Courts of any
reciprocating territory are executable as a decree passed by the domestic Court.
- In case the decree does not pertain to a reciprocating territory or a superior Court of a
reciprocating territory, as notified by the Central Government in the Official Gazette,

CPC [DONE] Page 66

 reciprocating territory, as notified by the Central Government in the Official Gazette,
the decree is not directly executable in India and a fresh suit will have to be filed in
India on the basis of such a decree or judgment, which may be construed as a cause of
action for the said suit
- In the fresh suit, the said decree will be treated as another piece of evidence against the
defendant.

TEST OF SECTION 13 CPC

- Section 13 and 14 enact a rule of res judicata in case of foreign judgments.
- These provisions embody the principle of private international law that a judgment
delivered by a foreign court of competent jurisdiction can be enforced by an Indian
court and will operate as res judicata between the parties thereto except in the cases
mentioned in Section 13.
- In both cases the decree has to pass the test of S. 13 CPC which specifies certain
exceptions under which the foreign judgment becomes inconclusive and is therefore not
executable or enforceable in India.
- Section 13 provides that a foreign judgment shall be conclusive as to any matter thereby
directly adjudicated between the same parties or between parties under whim they claim
or any of them claim litigating under the same title except
○ Where it has not been pronounced by a court of competent jurisdiction.
○ Where it has not been given on merits of the case
▪ Where is has not been convulsively herd and decided
▪ Where the judgment is on merits, it must be apparent from the judgment
itself; it is not enough is there is a decree.
▪ The term "on merits" means that matters must be conclusive b/s parties
○ Where it appears on the face of the proceedings to be founded on an incorrect
view of international law or refusal to recognize the law of India in cases in which
such law is application.
○ Where the proceedings in which the judgment was obtained are opposed to natural
justice
○ Where it has been obtained by fraud
○ Where it sustains a claim founded on a breach of any law in force in India
- In other words, a foreign judgment is not conclusive as to any matter directly
adjudicated upon, if one of the conditions specified in clauses (a) to (f) of Section 13 is
satisfied and it will then be open to a collateral attack.
- Rules laid down in Section 13 CPC relating to foreign judgment are not merely rules of
procedure. They are substantive also.

Brijlal Ramji Das v. Govind Ram

○ The SC in this case held that section 13 speaks not only about judgment but any
matter which has been directly adjudicated upon. (constructive res judicata).

- This, to be conclusive, a foreign judgment must have been by a competent court and
must have directly adjudicated upon the matter which is sought to be pleaded as res
judicata.

WHEN DOES A FOREIGN COURT SAID TO HAVE JURISDICTION

- In an action in Personam, the foreign courts have jurisdiction in the following cases:
○ At the time of commencement of the suit, the defendant was a resident or present
in that country.
○ Where the defendant at the time of judgment is a subject or a citizen of such
country.
○ Where the parties objecting to jurisdiction submits to the jurisdiction of such
court.
- Anubha v. Vikas Agarwal
○ Are the Indian courts bound to enforce the decree of a US court? Both were
married in accordance with the Hindu Marriage Act.
○ Because the party did not consent to the jurisdiction of the court, the decree

CPC [DONE] Page 67

 ○ Because the party did not consent to the jurisdiction of the court, the decree
obtained by the husband in the US Court is not enforceable or recognised by
Indian courts.

PRINCIPLE OF COMITY
- The rules of private international law of each State must in the very nature of things
differ, but by the comity of nations certain rules are recognized as common to civilized
jurisdictions.

______________________________________________________

- Foreign judgments may be recognized based on bilateral or multilateral treaties or

understandings, or unilaterally without an express international agreement.
- The “recognition” of a foreign judgment occurs when
○ the court of one country or jurisdiction accepts a judicial decision made by the
courts of another "foreign" country or jurisdiction, and
○ issues a judgment in substantially identical terms without rehearing the substance
of the original lawsuit.
- Recognition will be generally denied if the judgment is substantively incompatible with
basic legal principles in the recognizing country.

CPC [DONE] Page 68

Appearance and Non-Appearance of Parties - Order 9
24 May 2025 03:22 AM

APPEARANCE OF PARTIES

RULE 1
○ Requires the parties to the suit to attend the court in person or by their pleader on
the day fixed in the summons for the defendant to appear.
○ It provides that where a plaintiff or a defendant who has been ordered to appear in
person, does not appear in person or show sufficient cause for non-appearance, the
court may dismiss the suit, if he is the plaintiff or proceed ex parte, if he is the
defendant.

CONSEQUENCES OF NON-APPEARANCE

PLAINTIFF'S NON-APPEARANCE
○ If the plaintiff fails to appear without providing a satisfactory reason, the court is
empowered to dismiss the suit under Rule 12 of Order 9.
○ This dismissal occurs because the court presumes that the plaintiff is no longer
interested in pursuing the case.

DEFENDANT'S NON-APPEARANCE
○ If the defendant does not appear despite being ordered to do so, the court may
issue an ex-parte order or decree.
○ This decision is based on the principle that the defendant’s absence implies a
failure to contest the claims made by the plaintiff.

WHERE NEITHER PARTY APPEARS : RULE 3

○ Where neither party appears, the court may dismiss the suit.
○ The dismissal of suit for non-prosecution or non-appearance of plaintiff does not
amount to “decree” and therefore, not appealable.
○ However, this dismissal does not bar the filing of a new suit based on the same
cause of action as stated in Rule 4.
○ If the plaintiff can show valid reasons for their non-appearance, they may apply to
have the dismissal set aside. If the court finds the explanation satisfactory, it can
overturn the dismissal and schedule a new hearing date.

WHERE ONLY PLAINTIFF APPEARS [RULE 6 AND 10]

○ If only the plaintiff appears and the defendant does not, the court can proceed to
issue an ex-parte order against the defendant.
○ For this order to be valid, the plaintiff must prove that the summons was properly
served.
○ This provision is applicable primarily to the initial hearing.
○ Subsequent hearings require the presence of both parties. [Held in the below
mentioned case]
○ Sangram Singh v. Election Tribunal
▪ Next, there must be ever present to the mind the fact that our laws of
procedure are grounded on a principle of natural justice which requires that
men should not be condemned unheard, that decisions should not be reached
behind their backs, that proceedings that affect their lives and property
should not continue in their absence and that they should not be precluded
from participating in them.
▪ Of course, there must be exceptions and where they are clearly defined they
must be given effect to.
▪ But taken by and large, and subject to that proviso, our laws of procedure

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 ▪ But taken by and large, and subject to that proviso, our laws of procedure
should be construed, wherever that is reasonably possible, in the light of that
principle.”

RULE 10 : WHEN MULTIPLE PLAINTIFFS

▪ Where there are two or more plaintiffs and one or more of them appear and
the others do not appear, the court may permit the suit to proceed as if all the
plaintiffs have appeared or make such order as it thinks fit.

WHERE ONLY DEFENDANT APPEARS [RULE 7 TO 11]

RULE 7
○ Where the defendant appears on the adjourned day and assigns good reason for his
non-appearance, the court may hear him upon such terms as the court directs as to
costs treating as if he had appeared on the day fixed for appearance.
○ It has been held that Rule 7 is directed to ensure orderly conduct of proceedings.

RULE 8
○ Where the defendant appears and the plaintiff does not appear, and the defendant
does not submit to the plaintiff’s claim, the court shall pass an order dismissing
the suit.
○ But Rule 8 establishes that if the defendant admits to the claim as a whole or in
part, then the court will pass a decree against the defendant upon such admission
and dismiss the suit for rest of the claim.
○ Rule 8 will apply only when there is one plaintiff, or if there are two or more and
all of them remain absent.
○ Dismissal of suit under Rule 8 or 9 does not amount to a decree.
○ Where there are more plaintiffs than one, and one or more of them appear, Rule
10 will apply.

RULE 9
○ Rule 9 precludes the plaintiff from filing a fresh suit on the same cause of action.
And if court is satisfied that there was sufficient cause, the court may set aside
order of dismissal and fix date for proceeding with the suit.
○ What is a sufficient cause depends upon facts and circumstances of each case.

RULE 11
○ Where there are two or more defendants and one or more of them appear and the
others do not appear, the suit will proceed and at the time of pronouncement of the
judgment, the court may make such order as to the absent defendants as it thinks
fit.
○ In such case, a decree may be contested as one against some of the defendants and
ex parte against others.

WHEN A SUMMON IS NOT DULY SERVED [RULES 2, 5 AND 6]

- RULE 2
○ If the plaintiff fails to pay the costs for service of summons (when required), and
as a result, the summons is not served, the court shall dismiss the suit unless the
plaintiff shows good cause.
- RULE 5
○ If a summons is returned unserved, and within seven days the plaintiff does not
apply for issue of a fresh summons, the court shall dismiss the suit unless good
cause is shown.
- RULE 6
○ If the defendant doesn’t appear, and the court finds that summons was not
properly served, it cannot proceed ex parte. Instead, the court must order fresh
service of summons.
○ Only when the summons is proved to have been duly served and the defendant
still doesn’t appear can the suit proceed ex parte under Rule 6(b).

CPC [DONE] Page 70

○
still doesn’t appear can the suit proceed ex parte under Rule 6(b).

CPC [DONE] Page 71

Framing of Issues - Order 10&14
24 May 2025 04:09 AM

ORDER 10

RULE 1: ASCERTAINMENT PLEADING ADMITTED OR NOT

- Order 10, Rule 1 the court shall at first hearing ascertain from each party or pleader
whether he admits or denied such allegations or facts as are made in the plaint or in the
written statement
- The provisions of Order 10, Rule 1 are mandatory.
- Order 10, Rules 1-A, 1-B and 1-C are inserted by Amendment Act, 1976 which provide
for alternative dispute resolution to get the matter settled outside the court through
conciliation, mediation or Lok Adalat.
- If no settlement, matter would again be referred back to the court.

RULE 2: ORAL EXAMINATION OF PARTIES

- Order 10, Rule 2 provides for oral examination of parties with the view to elucidate the
matter in controversy in the suit.

FRAMING OF ISSUES [ORDER 14]

- Issue arise when a material proposition of fact or law is affirmed by one party and
denied by other.
- J.K. Iron & Steel Co. v. Mazdoor Union
○ The only point requiring pleadings and issues is to ascertain the real dispute
between the parties, to narrow the area of conflict and to see just where the two
sides differ.
- Issues are the lifeline and guide for any suit and therefore the framing of issues has very
important bearing on the trial and decision of a case
- Wrongly constructed issues and discovery of a valid issue being left out no doubt
affects the outcome of a trial as time, money and legal provisions linger the judgment of
a case.

HOW DOES AN ISSUE ARISE [ORDER 14 RULE1(1)]

○ Issues arise when a material proposition of fact or law is affirmed by one party
and denied by the other.
○ If there is no specific denial, the question of framing issue does not, generally,
arise

SUBJECT MATTER OF ISSUE [ORDER 14 RULE 1(3)]

○ Each material proposition affirmed by one party and denied by the other shall
form the subject matter of a distinct issue.

WHAT IS MATERIAL PROPOSITIONS [ORDER 14 RULE 1(2)]

○ Basically, Material propositions can be understood in sense of two aspects :-
▪ Proposition of Law
▪ Proposition of Fact
○ The material propositions are those propositions of law or fact which a plaintiff
must allege in order to show a right to sue (or file a suit) and the defendant must
allege in order to constitute his defense in such suit.

KINDS OF ISSUES [ORDER 14 RULE 1(4)]

○ Issues are of two kinds
▪ Issue of fact
▪ Issue of Law

CPC [DONE] Page 72

FRAMING OF ISSUES [ORDER 14 RULE 1(5)]
○ At the first hearing of the suit the Court shall, after reading the plaint and the
written statements, if any, and after examination under rule 2 of Order 10 and after
hearing the parties or their pleaders, ascertain upon what material propositions of
fact or of law the parties are at variance, and shall there upon proceed to frame
and record the issues on which the right decision of the case appears to depend.
○ Afcons Infrastructure Ltd. v. Cherian Varkey Construction Co. Ltd.
▪ Hon’ble Supreme Court held that it is proposed that the court has to first
consider the options given in section 89 CPC and order 10 rule 1A to 1C
CPC.
▪ These provisions impose a duty upon the court that before framing the issues
it should be considered that this case is fit for reference or not and If the
court is of the opinion that the said suit is not fit to be referred to any forum
described under section 89 cpc, after recording reasons in writing, issues
may be framed.
○ Section 89 C.P.C: Settlement of disputes outside the court [ADR mechanisms]

WHERE DEFENDANT MAKES NO DEFENSE [ORDER 14 RULE 1(6)]

○ Nothing in this rule requires the Court to frame and record issues where the
defendant at the first hearing of the suit makes no defence.

COURT TO PRONOUNCE JUDGMENT ON ALL ISSUES [ORDER 14 RULE 2(1)]

○ Notwithstanding that a case may be disposed of on a preliminary issue, the Court
shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.

PRELIMINIARY ISSUE [ORDER 14 RULE 2(2)]

○ Where issues both of law and of fact arise in the same suit, and the Court is of
opinion that the case or any part thereof may be disposed of on an issue of law
only, it may try that issue first if that issue relates to—
▪ The jurisdiction of the court
▪ A bar to the suit created by any law for the time being in force
○ and for that purpose may, if it thinks fit, postpone the settlement of the other
issues until after that issue has been determined, and may deal with the suit in
accordance with the decision on that issue.
○ Is any issue other than mention in Order 14 Rule 2 Sub Rule 2 could be decided as
preliminary issue?
▪ Such as issue related Non joinder of Parties
▪ State of Mizoram v. Sanglawn
□ Issue relating to non-joinder or mis-joinder of necessary party Neither
relates to jurisdiction of Court nor bar to suit created by any law for
time being in force , Cannot be decided as preliminary issue.
▪ Kalloo v. State of U.P.
□ Issue relating to non-joinder of necessary party can be decided as
preliminary issue, Because no suit shall be defeated by reason non-
joinder of parties.
□ If this issue is decided as preliminary issue plaintiff can be directed for
add the necessary party in the suit but if issue is decided at the time of
judgement plaintiff have no option.

MATERIALS FROM WHICH ISSUES MAY BE FRAMED [ORDER 14 RULE 3]

○ The Court may frame the issues from all or any of the following materials:—
▪ (a) allegations made on oath by the parties, or by any persons present on
their behalf, or made by the pleaders of such parties;
▪ (b) allegations made in the pleadings or in answers to interrogatories
delivered in the suit;
▪ (c) the contents of documents produced by either party
○ This means that apart from those mentioned in the plaint or written statements

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 ○ This means that apart from those mentioned in the plaint or written statements
alone, issues can also be formed by the Court during first hearing through
interrogations (of both sides) or even through presentation of documents by the
parties to the suit.

COURT MAY EXAMINE WITNESS OR DOCS BEFORE FRAMING ISSUES

[ORDER 14 RULE 4]
○ Where the Court is of opinion that the issues cannot be correctly framed without
the examination of some person not before the Court or without the inspection of
some document not produced in the suit, it may adjourn the framing of issues to a
day not later than seven days.
○ It may also (subject to any law for the time being in force) compel the attendance
of any person or the production of any document by the person in whose
possession or power it is by summons or other process.

POWER TO AMEND AND STRIKE OUT ISSUES [ORDER 14 RULE 5(1)]

○ The Court may at any time before passing a decree amend the issues or frame
additional issues on such terms as it thinks fit.
○ All such amendments or additional issues as may be necessary for determining the
matters in controversy between the parties shall be so made or framed.
○ The Court may also, at any time before passing a decree, strike out any issues that
appear to it to be wrongly framed or introduced. [ORDER 14 RULE 5(2)]

QUESTION OF FACT OR LAW MAY BY AGREEMENT BE STATED [ORDER 14

RULE 6&7]
○ When the parties to the suit agree as to the question of fact or law to be decided
between them, they may, by agreement, state the same in form of an issue.
○ If the court is satisfied that the agreement is executed in good faith, it may
pronounce the judgment on such issue according to the terms of the agreement
○ A sues B for recovery of ₹1,00,000. Both parties agree that the only issue is
whether B signed a promissory note on 01.01.2024. They reduce this agreement to
writing and present it to the court as the sole issue. The court, finding the
agreement made in good faith, decides the case only on this issue.

COURT'S POWER & DUTY AS TO SETTLEMENT OF ISSUES

- The duty to frame proper issues rests primarily on the Court. The judge must apply his
mind and understand the facts of the case before framing issues.
- But the pleaders appearing for both the parties should also assist the court in framing
issues.

OMISSION OR INCLUSION OF FAULTY ISSUES

- Even though it is the duty of the court to frame proper issues, mere omission to frame
an issue is not necessarily fatal to the suit.
- Omission to frame an issue is an irregularity which may or may not be a material one.

Kewal Krishna c. Dina Nath

○ If such omission affects the disposal of the suit on merits, the suit must be
remanded to the trial court for a fresh trial.
○ On the other hand, if the parties went to the trial with full knowledge that a
particular point was at issue, they have not been prejudiced and substantial justice
has been done, absence of an issue is not fatal to the case so as to vitiate the
proceedings

Sardul Singh v. Pritam Singh

○ It is the issues framed and not the pleadings that guide the parties in the matter of
leading evidence,
○ The Court cannot refuse to decide the point on which an issue has been framed
and evidence led by the parties, even if the point involved is not mentioned in the

CPC [DONE] Page 74

○
and evidence led by the parties, even if the point involved is not mentioned in the
pleadings
○ The Court should not frame an issue which does not arise in the pleadings.
○ The issues must be confined to the material questions of fact or law (facta
probanda) and not on subordinate facts or evidence by which material questions of
fact or law are proved or disproved (facta probantia).
○ One issue should cover only one fact or law in dispute between the parties.
○ If the case goes in appeal, it must be dealt with by the Appellate Court on the
issues settled for trial.

CPC [DONE] Page 75

Discovery, Inspection & Production of Documents - Order
11, 12, 13
24 May 2025 04:54 AM

DISCOVERY & INSPECTION : ORDER 11

ADMISSIONS : ORDER 12
PRODUCTION, IMPOUNDING & RETURN OF DOCS : ORDER 13
AFFIDAVITS : ORDER 19

DISCOVERY & INSPECTION [ORDER 11]

- “Discovery” means to compel the opposite party to disclose what he has in his
possession or power.
- After settlement of issues, a party to a suit may require information from his adversary
as to facts or as to documents in possession or power of such party, relevant to the issue
in the suit.
- Where information as to facts is required, the party is allowed to put a series of
questions to his adversary, these questions are called interrogatories
- The judge will go through the proposed questions and, if he considers them proper he
will compel the other side to answer them on oath before trial. This is called discovery
of facts.
- If on the other hand, information as to documents is required, the party may apply for
an order compelling the other party to submit a list of relevant document in his
possession or power, and in certain circumstances, for permission to inspect and take
copies of those documents. This is known as discovery of documents.

INTERROGATORIES : RULES 1-11

○ Section 30 of the Code empowers the court to make an order for discovery.
○ The object of interrogatories is twofold :
▪ To know the nature of the case of the opponent
▪ To support his own case either by obtaining admissions or indirectly by
destructing the case of the opponent.
○ FORM OF INTERROGATORIES
▪ Should be in Form Nos. 1 and 2 of Appendix ‘C’ with necessary variations
and modification as the circumstances may require.
○ RULES AS TO INTERROGATORIES
▪ A party may object to answer an interrogatory if it scandalous, irrelevant,
mala fide, immaterial, privileged etc.
▪ Must be administered in writing with leave of the court.
▪ The particulars have to be submitted to the court and within seven days court
may decide.
▪ May be administered either by plaintiff or defendant
▪ May also be administered by one plaintiff to another
▪ No party can deliver more than one set of interrogatories to same party
without an order by court
▪ Generally, no leave can be granted to the plaintiff for administering
interrogatories until the written statement is filed by the defendant or the
time to file written statement has expired
▪ Where a party is minor or lunatic, interrogatories may be administered to his
next friend or guardian
▪ Where a party to suit is corporation or body of persons empowered to sue or
be sued, it may be administered to an officer of such corporation
▪ Interrogatories and an affidavit in answer to it must be delivered in
prescribed form
▪ Shall be answered by affidavit to be filed within 10 days after the service of
interrogatories
▪ Must relate to matter in question in suit
▪ Must be as to question of fact
CPC [DONE] Page 76
 ▪ Must be as to question of fact
▪ Cannot be allowed at a premature stage
▪ Generally, the cost shall be borne by the party administering the
interrogatories
○ INTERROGATORIES WHICH MAY NOT BE ALLOWED
▪ For obtaining discovery of facts which constitute exclusively the evidence of
the case of his adversary.
□ Sethi v. R.P. Kapur
 The purpose of interrogatories is not to enable the litigant to
come into court knowing how his opponent is going to prove his
case.
▪ Any confidential or privileged communications.
▪ Such disclosure would be injurious to public interest
▪ which are scandalous, irrelevant or not bona fide
▪ which do not touch the core of the allegations
▪ which are in the nature of cross – examination
▪ are on questions of law
▪ is not on some definite and existing state of circumstances
○ APPEAL
▪ An order granting or rejecting prayer for interrogatories is neither a “decree”
nor an appealable order. No appeal, lies against such order.

DISCOVERY & PRODUCTION OF DOCS [RULES 12 - 14]

○ Order XI Rule 12-14 of the Civil Procedure Code, 1908 (“CPC”) provides for
discovery of documents, whereby any party to the suit can apply for discovery of
documents.
○ In purely procedural terms, the principal object of discovery is to identify the
documents, from pleadings or statements made before the court, which are in the
hands of the opposite party which may support the case of the applicant.
○ Production of document can be resisted / objected on several grounds, including
▪ documents sought not being in his power or possession
▪ being irrelevant
▪ Confidential
▪ on grounds of privilege or that no responsive documents exist
○ However, when a party refuses to produce a document which he has had notice to
produce, he cannot afterwards use the document as evidence without the consent
of the other party or the order of the Court.
○ CONDITIONS:
▪ It is necessary for fair disposal of suit
▪ For saving costs
○ CONSIDERATIONS
▪ To elicit information
▪ To obviate necessary to adduce lengthy evidence
▪ To expedite disposal of suit

OPPRESSIVE DISCOVERY
▪ Discovery may be resisted on the ground that it is “unduly” oppressive to the
party giving discovery. In dealing with such question, the court will bear in
two consideration:
□ Importance of discovery to the person seeking it
□ Burden imposed on opposite party giving discovery

NON-COMPLIANCE : EFFECTS
▪ If a party ordered to produce document fails to comply with the order, a
court may draw an adverse inference that had he produced them, they would
have gone against him
▪ In case of plaintiff, his suit may be dismissed and he shall also be precluded

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 ▪ In case of plaintiff, his suit may be dismissed and he shall also be precluded
from bringing a fresh suit on the same cause of action.
▪ Similarly, in case of defendant, his defence may be struck off for non-
compliance with the order.

RULES AS TO DISCOVERY
▪ Any party to the suit may apply to the court for an order directing the other
party to make discovery on oath of the documents which are or were in
possession, power, relating to any matter in question in the suit.
▪ It is at the discretion of the court to grant or refuse discovery of documents
▪ The court may exercise this power at any stage, whether on its own motion
or an application of any party and subject to such conditions and limitations
as may be prescribed by it.
▪ The court may either refuse or adjourn such application if satisfied that such
discovery is not necessary or not necessary at that stage of the suit or make
such order as it thinks fit.
▪ No order of discovery, inspection or production of documents will be passed
by the court on the application of the plaintiff until written statement is filed
by the defendant or the time to file Written Statement has expired.
▪ Discovery cannot be ordered by the court if it is of the opinion that it is not
necessary either for the fair disposal of the suit or for saving costs.
▪ A party against whom an order for discovery of documents has been made
by the court, as a general rule, bound to produce all the documents in his
possession or power.
▪ A party against whom discovery of documents has been ordered considers
that he is entitled to legal protection in respect of a particular document in
respect of a particular document which he has been ordered to produce by
the court, he is at liberty to take such objection, or claim privilege
▪ When such privilege is claimed for any document, the court will inspect
such document for the purpose of deciding the validity of the claim of
privilege, unless the document related to matters of State
▪ Failure to comply with the order of discovery, inspection or production of
documents may result in adverse inference against the defaulting party

INSPECTION OF DOCUMENTS [RULES 15-19]

▪ For the purpose of inspection, documents may be divided into two classes
□ Documents referred to in the pleadings or affidavits of parties; and
□ Other documents in the possession or power of the party but not
referred to in the pleadings of the parties
▪ As regards the first class of documents, a party to a suit is entitled to
inspection. And without intervention of the court, every party may give
notice in the prescribed form to other party in whose pleadings they are
referred to, to produce such documents for his inspection.
▪ The party to whom such notice is given should, within ten days from receipt
of such notice, give notice to the party claiming such inspection, stating the
time and place at which the documents may be inspected and stating his
objections, if any to the production of any of the documents. If he fails to do
so, the court may make an order of inspection.
▪ As regards the second class of documents, the party desiring the inspection
can only proceed by way of an application to the court along with an
affidavit satisfying the court that the document is relevant to the case.
▪ The primary object of Rules 15 to 19 of Order 11 is to place the opposite
party in the same position as if the documents had been fully set out in his
pleadings or in the affidavit.

PRIVILEGED DOCUMENTS
▪ Where in an application for an order for inspection, privilege is claimed for
any document, the court may inspect the document for the purpose of

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 any document, the court may inspect the document for the purpose of
deciding the validity of the claim of privilege, unless the document relates to
matters of State.
▪ Even in the cases where the court does not allow inspection or production of
documents at the instance of a party, the court has power to inspect those
documents.
▪ It is open to the court after perusing the document whether the claim of
privilege is valid and requires to be upheld.

PREMATURE DISCOVERY [RULE 20]

▪ The court is empowered to postpone a premature discovery or inspection.
▪ A discovery is premature when the right to discovery depends upon the
determination of any issue or question in dispute, or for any other reason it is
desirable that any issue or question in dispute in a suit should be determined
before deciding upon the right to discovery.
▪ In such a case, the court may order that that issue or question be determined
first and reserve the question as to discovery thereafter
▪ The object behind this provisions is to enable the court to decide an issue in
a suit, as distinguished from the suit itself.
▪ The rule, however, does not apply where discovery is necessary for the
determination of such issue or question.

NON-COMPLIANCE WITH ORDER OF DISCOVERY OR INSPECTION

[RULE 21]
▪ Where any party fails to comply with any order to answer interrogatories or
for discovery or production of documents, if such party happens to be a
plaintiff, his suit may be dismissed for want of prosecution
▪ If he happens to be a defendant, his defence will be struck off and will be
placed in the same position as if he had not defended.
▪ Such order, can be passed only after giving notice and a reasonable
opportunity of being heard to the plaintiff or defendant, as the case may be
▪ Modula India v. Kamakshya Singh
□ If the suit of the plaintiff is dismissed on this ground, he cannot file a
fresh suit on same cause of action
▪ Babbar Sewing Machine v. Triloki Nath Mahajan
□ The court ordered the defendant to produce certain documents. The
defendant did not comply with that order and his defence was,
therefore, struck off
□ At the trial, he was not allowed to cross-examine the witnesses of the
plaintiff. The defendant challenged that action.
□ Before Supreme Court, two important questions were raised:
 Whether the court was justified in striking out the defence of the
defendant and
 Whether the defendant has no right to cross-examine witnesses of
the plaintiff
□ Setting aside the decision, the court held that the stringent provisions
of Order 11, Rule 21 should not be lightly invoked and must be applied
in extreme cases as a last resort.
□ Even assuming that in certain circumstances the provisions of Order
Xl, rule 21 must be strictly enforced, it does not follow that a Suit can
be lightly thrown out or a defence struck out, without adequate reasons
□ The test laid down is whether the default is wilful.
□ In the case of a plaintiff, it entails in the dismissal of the suit and,
therefore, an order for dismissal ought not be made under order XI,
rule 21, unless the court is satisfied that the plaintiff was willfully
withholding information by refusing to answer interrogatories or by
withholding the documents which he sought to discover
□ In such an event, the plaintiff must take the consequence of having his

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 □ In such an event, the plaintiff must take the consequence of having his
claim dismissed due to his default, i.e. by suppression of information
which he was bound to give.
□ In the case of the defendant, he is visited with the penalty that his
defence is liable to be struck out and to be placed in the same position
as if he had not defended the suit.
□ The power for dismissal of a suit or striking out of the defence under
order XI, rule 21, should be exercised only where the defaulting party
fails to attend the hearing or is guilty of prolonged or inordinate and
inexcusable delay which may cause substantial or serious prejudice to
the opposite party.

ADMISSIONS [ORDER 12]

- “Admission” means a statement, oral, written or inferred from conduct, made by or on
behalf of a party to the suit, and is admissible in evidence, if relevant, as against the
interest of the party making it.
- The importance of admission cannot be underestimated, it is the best and the strongest
piece of evidence since the facts admitted need not be proved.
- It saves time, expenses and expedites trial. What a party admits to be true should be
presumed to be true. No exception can be taken to this proposition

RULE 1 : NOTICE TO ADMIT CASE

○ Any party to a suit may give notice in writing that he admits the whole or any part
of the case of the other side.

RULE 2-3A,8 : NOTICE TO ADMIT DOCUMENTS

○ After discovery and inspection, either party may call upon the other party to admit
within seven days from the date of the service of the notice in the prescribed form,
the genuineness of any document.
○ In case of refusal or neglect to admit any document even after notice, the costs of
proving them shall be paid by the party so neglecting or refusing, whatever may
be the result of the suit, unless the court otherwise directs.
○ Every document which a party is called upon to admit, if not denied specifically

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 ○ Every document which a party is called upon to admit, if not denied specifically
or by necessary implication or stated to be not admitted in the pleading of that
party or in reply to the notice to admit documents, shall be deemed to be admitted
except as against a person under disability
○ The court may, however, in its discretion and after recording reasons, require any
document so admitted to be proved otherwise than by such admission.

RULE 4-5 : NOTICE TO ADMIT FACTS

○ Rules 4 and 5 provide for notice to admit facts. Any party may, by notice in
writing, at any time not later than nine days before the day fixed for the hearing,
call upon any other party to admit, for the purpose of the suit only any specific
fact or facts, mentioned in such notice.
○ The costs of proving such facts shall be paid by the party refusing or neglecting to
admit the same within six days after the service of such notice, whatever may be
the result of the suit, unless the court otherwise directs.
○ Such admission, however should be accepted or rejected as a whole and it is not
permissible to rely on one part, ignoring the other

RULE 6 : JUDGMENT ON ADMISSIONS [IMP]

○ Rule 6 empowers the court to pronounce a judgment upon the admission made by
the parties, without waiting for determination of any other questions between the
parties,
○ Uttam Singh v. United Bank of India
▪ The court held that where a claim is admitted, the court has the jurisdiction
to enter a judgment for the plaintiff and to pass a decree on the admitted
claim.
○ The power to give judgment under this rule is discretionary and party cannot
claim it as a matter of right.
○ Being enabling provision, it is not obligatory on the court to pass judgment on
admission.

PRODUCTION, IMPOUNDING AND RETURN OF DOCUMENTS : ORDER 13

- The plaintiff must produce in court with the plaint the documents on which he is suing
the defendant. He must deliver the list of documents in support of his claim.
- A summons to a defendant should contain a direction asking him to produce all the
documents in his possession or power upon which he intends to rely in support of his
claim.

RULE 1 : PRODUCTION OF DOCUMENTS

○ Rule 1 of Order 13 required the parties or their pleader to produce the
documentary evidence on or before the settlement of issues.
○ The object underlying this provision is to secure a fair trial of cases, obviate the
chances to adduce forged or manufactured evidences and produce their documents
before the court at the earliest opportunity.
○ Rule 1(1) of Order 13 directs the parties or their pleader to produce documentary
evidence in original, on or before settlement of issues Rule 1(2) requires court to
receive those documents.
○ The court has the power to receive documents at a later stage if the genuineness of
the document is beyond doubt and it is relevant or material to decide the real issue
in controversy.
○ This doesnot apply to documents
▪ Produced for cross examination of witness of other side
▪ Handed over to a witness merely to refresh his memory

RULE 4-7 : ADMISSION OF DOCUMENTS

○ Rule 4 provides that on every document admitted in evidence in suit, the
following particulars should be endorsed:

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 ○
following particulars should be endorsed:
▪ The number and title of the suit
▪ The name of the person producing the document
▪ The date on which it was produced
▪ A statement of its having been so admitted
○ The endorsement should be signed by the judge.

RULES 7-9 : RETURN OF DOCUMENTS

○ Documents not admitted in evidence shall be returned to the person producing
them
○ Rule 9 provides for return of a document to a party producing it after the disposal
of the suit or appeal or even during the pendency of the suit provided that the
necessary undertaking to produce original in case it is required is filed, though
ordinarily it is not allowed without notice to the other side and without producing
certified copy of such documents

REJECTION OF DOCUMENTS : RULES 3 AND 6

○ The court may, after recording reasons, reject, at any stage of the suit, any
document which it considers irrelevant or inadmissible.
○ The endorsement on the rejected document should show the particulars mentioned
in clauses (a) to (c) of Rule 4 (1) above together with statement of its having been
rejected.

IMPOUNDING OF DOCUMENTS : RULE 8

○ Rule 8 enables a court to impound a document. It states that the court for
sufficient cause direct any document, book or exhibit produced before it in any
suit to be impounded and kept in the custody of an officer of the court for such
period and subject to such condition as it thinks fit,.
○ Whereas Rule 7 provides for return of documents not admitted in evidence, Rule 8
deals with documents admitted in evidence.
○ This power may be exercised by the court in case of forgery or apprehension that
the document may be destroyed or altered.

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Interim Orders
05 May 2025 10:33 AM

INTERIM ORDERS
- Interim or interlocutory orders are those orders passed by a court during the pendency
of a suit or proceeding which do not determine finally the substantive rights and
liabilities of parties in respect of the subject-matter of the suit or proceeding.
- “Interlocutory” means not that which decides the cause, but that which only settles
some intervening matter relating to the cause, a judgment or decree given provisionally
during the course of legal action.

Interim Orders under CPC may be summarized as:

- Payment in Courts [Order 24]
- Security of Costs [Order 25]
- Commissions [Order 26]
- Arrest before Judgment [Order 38]
- Attachment before Judgment [Order 38]
- Temporary Injunction [Order 39]
- Interlocutory Order [Order 39]
- Receiver [Order 40]

PAYMENT IN COURT : ORDER 24

- In a suit for debt or damages, it is open to the defendant that he can deposit such sum of
money as he considers a satisfaction in full of the plaintiff’s claim at any stage of the
proceeding of the matter.
- If the plaintiff accepts the money when it fully meets its requirements, the court shall
record its statement and pronounce its judgment accordingly.
- On the other hand, if the plaintiff accepts the payment as a satisfactory amount in part
of his claim, he has the right to file a lawsuit to recover the balance.
- However, if it is finally found that the deposit fully meets the requirements of the
plaintiff, the plaintiff shall pay all expenses incurred after the deposit.
- Illustration
○ A sues B to recover Rs. 15000. B deposits Rs. 10,000 in full satisfaction of the
plaintiff’s claim.
○ If A accepts the amount as satisfaction in full of his claim, the court shall
pronounce the judgment to that effect
○ If, on the other hand, A accepts the amount as satisfaction in part of his claim, he
may prosecute his suit for the balance.
○ But if the court ultimately decides that A is entitled only to Rs. 10,000, he will
have to pay the costs incurred by B after depositing Rs. 10000 in court.

SECURITY FOR COSTS : ORDER 25

- It is pointed out in Order XXV Rule 1 that the court can order the plaintiff to provide
security at any stage of the litigation to pay the costs incurred by the defendant.
- The court can exercise this power at the request of the defendant or can take a suo
moto cognizance.
- However, the court should make this order in the following circumstances:
○ The plaintiff lives outside of India, or there are two or more plaintiffs, and they all
live outside of India; and
○ The sole plaintiff or no plaintiff owns sufficient real estate other than litigation
property in India.
- The purpose of this rule is to provide protection to defendants in some instances, where
if the case became successful from the side of the defendant, they may have difficulty in
realizing their costs from the plaintiff

FAILURE TO FURNISH SECURITY : RULE 2

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 FAILURE TO FURNISH SECURITY : RULE 2
○ If the security is not furnished within the time fixed or extended, the court shall
dismiss the suit unless the plaintiff or plaintiffs are permitted to withdraw
therefrom.
○ Sub-rule 2 of Rule 1 empowers the court to restore the suit dismissed under sub-
rule (1). The dismissal shall not, however, be set aside without giving notice to the
defendant.

COMMISSIONS : ORDER 26
- Sections 75 to 78 deal with the power of the court to issue commissions and detailed
provisions have been made in Order 26 of the Code.
- The power of the court to issue commission is discretionary and can be exercised by the
court either on an application by a party to the suit or of its own motion (suo motu)
- According to Section 75, a court may issue a commission for any of the following
purposes:
○ To examine witness
○ To make local investigation
○ To adjust accounts
○ To make a partition
○ To hold investigation
○ To perform a ministerial act
○ To conduct sale

TO EXAMINE WITNESS [S. 76-78 | ORDER 26 RULES 1-83]

○ When Court may issue commission for examination of a witness?
▪ Is he is residing out of India
▪ If he is residing beyond the territorial jurisdiction of the Court
▪ He is about to leave the jurisdiction of the Court
▪ If he is exempted under the Court from attending the Court
▪ If he is unable to attend the court due to sickness or infirmity
▪ If he is a government servant and cannot attend the court without detriment
to public service
▪ If it is necessary in the interest of justice or for expeditious disposal of the
case for any other reason.
○ A Court may issue Commission for examination of witness under Rule 1 on
“Interrogatories or otherwise”. An order for examination of a witness on
interrogatories is sometimes issued when examination of such witness should
really be compliance. A commission can also be issued with the consent of the
parties.
○ In Execution proceedings, Court can issue commission for the purpose of delivery
of possession through a Commissioner.
○ A Commissioner has no power to disallow a question even if he considers such
question as irrelevant.
○ He also, in such case cannot exercise power under Sec.151 of CPC. In case of any
objection to questions which requires to be decided by the Court, then, the same
has to be referred to the Court for its decision.
○ However, the commissioner is entitled to make note as to the demeanor of witness
examined by him.
○ Before appointment of Commissioner / granting the prayer, an opportunity should
be given to other side in view of principles of natural justice.
○ Order 26 Rule 8, declares that the evidence taken on commission cannot be read
as evidence in the suit without the consent of the opposite party unless one of the
circumstances mentioned in Clause A is present or a Specific Order is passed by
the Court under Clause B of Rule 8.
○ The deposition on commission can be read as evidence if the following conditions
are satisfied;
▪ The opposite party consents
▪ The witness is dead

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 ▪ The witness is dead
▪ The witness is residing beyond the jurisdiction of the court
▪ The witness is unable from sickness or infirmity to depose in court
▪ The witness is exempted from personal appearance in the court
▪ The witness is a government servant and cannot attend the court without
detriment to the public service.
▪ The court makes a specific order. When no objection was raised before the
commissioner at the time of recording evidence, small shall not be allowed
to be raised before the court after return of the commission.
PRACTICE & PRODECURE
○ Examination of a witness on commission is primarily in the discretion of the
Court.
○ The grounds upon which commission can be issued should not be relaxed because
the witness is a man of rank or having a social status and it will be derogatory for
him to appear in Court.
○ Again the mere fact that the, witness is very busy of oldage, or examination of
witness in Court would be expensive or the trial would be delayed are not
sufficient grounds for issuing commissions
○ The commission may also not be granted when the prayer is made to avoid cross-
examination before the Court.
○ An Order for appointment of Commissioner is a step in the direction of
adjudication of lis between the parties and such decision does not operate as res-
judicata.
○ A Court may alter, modify, re-call or cancel its earlier order. Such action can be
taken even suo-moto.
○ An Order granting or refusing the prayer for appointment of Commissioner for
examine a witness is neither a decree under Sec.2(2) nor an appealable order
under Sec.104 r/w O.43. However revision lies under Sec.115 of CPC.

TO MAKE LOCAL INVESTIGATIONS [RULE 9-10]

○ Rule 9, provides for commission to make local investigations for the purpose of
elucidating any matter in dispute, or ascertaining market value of any property or
amount of mesne profits, or damages or annual net profits.
○ The object of local investigation is not to collect evidence which can be adduced
in Court but to obtain material which for its very peculiar nature can best be had
only the spot.
○ The expression ‘elucidate’ means to make lucid or clear, throw light upon explain,
enlighten.
○ Hence, where the Court is satisfied on the materials available on record that a
party is not able to produce required evidence due to certain circumstances, it may
assist the litigant to appoint a Commissioner to get such material which neither
can be add from records nor can be produced by the parties leading oral or
document evidence

TO ADJUST ACCOUNTS [RULES 11-12]

○ In any suit in which an examination or adjustment of accounts is necessary, the
court may issue commission to such person as it thinks fit directing him to make
such examination or adjustment.
○ The report such produced shall be evidence in the suit

TO MAKE PARTITION [RULES 13-14]

○ Where a preliminary decree for partition of immovable property has been passed,
the court may issue commission to make a partition according to rights declared in
such decree.
○ Such commissioner shall, after such inquiry as may be necessary, divide the
property into required number of shares and allot them to the parties.
○ He will then prepare a report and transmit to the court. The court after hearing
parties, make the final allotment.

CPC [DONE] Page 85

 ○
parties, make the final allotment.

ARREST BEFORE JUDGMENT [ORDER 38]

- In most cases, a creditor with a claim against their debtor must first obtain a decree
against the debtor and then execute the decree by either having the debtor arrested or
attaching their property in accordance with the provisions outlined in Order 21 of the
code.
- It is an extraordinary remedy, the provisions must be construed strictly.
- However, before exercising this exceptional power, the court must be satisfied with two
conditions:
○ The plaintiff's suit must be genuine, and their cause of action must appear to be
prima facie valid, subject to the plaintiff substantiating the allegations made in the
plaint.
○ The court must have sufficient grounds to believe, based on adequate evidence,
that unless this extraordinary power is invoked, there is a genuine risk that the
defendant will attempt to evade the jurisdiction of the court by either leaving the
jurisdiction or transferring their property beyond the reach of the court's authority.

RULE 1 : GROUNDS
○ Where at any stage of the suit, the court is satisfied, either by affidavit or
otherwise:
▪ that the defendant, with intent to delay the plaintiff, or to avoid any process
of court, or to obstruct or delay the execution of any decree that may be
passed against him,
□ has absconded or left the local limits of the jurisdiction of the court
□ is about to abscond or leave the local limits of the jurisdiction of the
court
□ has disposed of or removed from the local limits of the jurisdiction of
the court his property or any part thereof, or
▪ that the defendant is about to leave India under circumstances affording
reasonable probability that the plaintiff will or may thereby be obstructed or
delayed in execution of any decree that may be passed against the defendant
in the suit,
the court may issue warrant to arrest the defendant and bring him before the court
to show cause why he should not furnish security for his appearance.
○ The defendant shall not, however, be arrested if he pays to the officer entrusted
with the execution of the warrant any sum specified in the warrant to satisfy the
plaintiff’s claim.

RULE 2-4 : SECURITY

○ Where the defendant fails to show cause why he should not furnish security for
his appearance, the court shall order him either to deposit in court money or other
property sufficient to answer the claim against him, or to furnish security for his
appearance at any time when called upon.
○ The court has discretion as to the manner as also the amount of security
○ Every surety for the appearance of the defendant shall bind himself, in default of
such appearance, to pay any sum of money which the defendant may be ordered to
pay in the suit.
○ Rule 3 lays down the procedure to be adopted on an application by the surety for
discharge of liability.
○ Where the defendant fails to furnish security or find fresh security, the court may
commit him to civil prison until the decision of the suit, or, where a decree is
passed against him, until the decree has been executed.
WHERE ARREST BEFORE JUDGMENT NOT ALLOWED
○ An order for arrest of a defendant before judgment cannot be obtained in any suit
for land or immovable property specified in clauses (a) to (d) of section 16 of the
Code.
○ Arrest before judgment also cannot be allowed to convert unsecured debt into a

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 ○ Arrest before judgment also cannot be allowed to convert unsecured debt into a
secured debt or to ensure easy execution of decree.
APPEAL/REVISION
○ An order passed under Rules 2, 3 or 6 of Order 38 is appealable.
○ An order of arrest made under Rule 1 of Order 38 can be said to be ‘case decided’
and is revisable.
ARREST ON INSUFFICIENT GROUNDS
○ Section 95 stipulates that in any suit where the plaintiff secures an order of arrest
against the defendant based on insufficient grounds, or if the plaintiff's suit
ultimately fails and the court determines that there was no reasonable or probable
cause for initiating the suit, the defendant may apply to the court for
compensation.
○ Upon such application, the court has the authority to order the plaintiff to pay
compensation to the defendant. The amount of compensation awarded should be
reasonable and may not exceed fifty thousand rupees.
○ This compensation aims to cover any expenses incurred by the defendant or any
harm, including damage to reputation, suffered as a result of the unjustified legal
action taken by the plaintiff.

ATTACHMENT BEFORE JUDGMENT [ORDER 38 RULES 5-13]

- As per Rule 5 of Order 38 CPC, court is empowered to direct a defendant, within a time
to be fixed by it,
○ either to furnish security , in such sum as may be specified in the order, or
○ to produce and place at the disposal of the Court, when required, the said property
or the value of the same, or such portion thereof as may be sufficient to satisfy the
decree
- or to appear and show cause why he should not furnish security.
- However to pass such order(s) or direction(s), court must be satisfied (through an
affidavit or other evidence) that the defendant, with the intent to obstruct or delay
execution of any decree, is:
○ About to dispose of the whole or any part of his property, or
○ About to remove the whole or part of his property outside the court’s jurisdiction
- This is a pre-condition: Mere apprehension is not enough—there must be some
substance or evidence behind the claim.
- Once the court has passed an order under Rule 5 (requiring the defendant to furnish
security or appear and show cause), and the defendant:
○ Fails to provide the security, or
○ Fails to appear and does not show valid cause,
- Then, the court may direct attachment of the property mentioned in the plaintiff’s
application or affidavit under Rule 5.
- Sardar Govindrao Mahadik v. Devi Sahai
○ Attachment before judgment is levied where the court on an application of the
plaintiff is satisfied that the defendant, with intent to obstruct or delay the
execution of any decree that may be passed against him
▪ is about to dispose of the whole or any part of his property, or
▪ is about to remove the whole or any part of his property from the local limits
of the jurisdiction of the Court
○ The sole object behind the order levying attachment before judgment is to give an
assurance to the plaintiff that his decree if made would be satisfied.
○ It is a sort of a guarantee against decree becoming infructuous for want of
property available from which the plaintiff can satisfy the decree.
- CONDITIONS
○ Before an order for attachment before judgment is made, the court must be
satisfied that the following conditions have been complied with:
▪ the defendant is about to dispose of the whole or any part of his property;
and
▪ such disposal is with the intention of obstructing or delaying the execution
of any decree that may be passed against him

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 of any decree that may be passed against him
- EFFECT OF ATTACHMENT
○ Attachment does not mean that the property is transferred.
○ The plaintiff does not get the title by merely affecting attachment before
judgment. [Sardar Govindrao Mahadik v. Devi Sahai]
- Attachment can also be withdrawn under Rule 9.
- An order passed under Rule 5 is an appealable order under s.104 r/w order 43

TEMPORARY INJUNCTIONS
- It is well-settled principle law that interim relief can always be granted in the aid of and
as ancillary to the main relief available to the party on final determination of his rights
in a suit or any other proceeding
- Therefore, a court undoubtedly possesses the power to grant interim relief during the
pendency of the suit.
- Temporary injunctions are thus injunctions issued during the pendency of proceedings.
- It is a remedy in the form of an order of the Court addressed to the particular person that
either prohibits him from doing or continuing to do a particular act (prohibitory
injunction); or orders him to carry out a certain act (mandatory injunction).

STAY AND INJUNCTION

○ Order of stay is addressed to court while order of injunction is issued to party.
○ Injunction becomes effective as soon as it is issued whereas stay operates only
when it is communicated to the court to which it is issued.
○ Injunction acts in personam and not in rem.

There are various forms of injunctions. Originally there are only two but by way of judicial
discourse, various types of injunctions have emerged:
- Temporary Injunction
- Permanent Injunction
- Quia Timet Injunction
- Mareva Injunction
- Anton Piller Injunction
- Dynamic Injunctions

PERMANENT INJUNCTIONS
- A permanent injunction restrains a party forever from doing the specified act and can be
granted only on merits at conclusion of the trial after hearing both the parties to the suit.
- It is governed by sections 30 to 42 of the Specific Relief Act, 1963.

TEMPRORARY INJUNCTIONS [ORDER 38]

- A temporary or interim injunction is that which, restrains a party temporarily from
doing the specified act and can be granted only until the disposal of the suit or until the
further orders of the Court.
- It is regulated by the provisions of Order XXXIX of the Code of Civil Procedure, 1908
and may be granted at any stage of the suit.

RULE 1 : WHEN TEMPORARY INJUNCTIONS CAN BE GRANTED

○ The granting of temporary injunction is a matter of discretion of the Court. The
discretion is to be exercised judicially according to well-settled principles.
○ Rule 1 of Order XXXIX of the Code of Civil Procedure, 1908 provides that where
in any suit it is proved by affidavit or otherwise:
▪ (a) that any property in disputed in a suit is in danger of being wasted,
damaged or alienated by any party to the suit or wrongfully sold is of a
decree, or
▪ (b) that the defendant threatens or intends to remove or dispose of his
property with a view to defrauding his creditors, or
▪ c) that the defendant threatens or dispossess the plaintiff or otherwise cause
injury to the plaintiff in relation to any property in dispute in the suit, or

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 injury to the plaintiff in relation to any property in dispute in the suit, or
▪ (d) where a court is of the opinion that the interest of justice so requires
○ It is not the plaintiff alone who can apply for an interim injunction. A defendant
also may make an application for grant of an injunction against the plaintiff.

RULE 2 : INJUNCTIONS TO RESTRAINT CONTINUATION OF BREACH

○ Rule 1 will apply in cases where rule 2 does not apply.
○ In a suit for restraining the defendant from committing a breach of contract or
other injury of any kind, whether compensation is claimed in the suit or not, the
plaintiff may, at any time after the commencement of the suit and either before or
after judgment,
▪ Apply to the court for a temporary injunction to restrain the defendant from
committing the breach of or injury complained of or any breach of contract
or injury of a like kind arising out of the same contract or relating to the
same property.
○ The Court may by order grant such injunction on such terms as to the duration of
the injunction, keeping an account, giving security or otherwise, as the Court
thinks fit.
CONDITIONS FOR GRANT
▪ Kashinath Sansthan v. Srimad Sudhindra Thirtha Swamy
□ In order to grant an order of injunction, the party who seeks for grant
of such injunction has to prove that
 he has made out a prima facie case to go for trial,
 the balance of convenience is also in his favour and
 he will suffer irreparable loss and injury if injunction is not
granted
□ But it is equally well-settled that when a party fails to prove prima
facie case to go for trial, question of considering the balance of
convenience or irreparable loss and injury to the party concerned
would not be material at all, that is to say, if that party fails to prove
prima facie case to go for trial, it is not open to the court to grant
injunction in his favour even if he has made out a case of balance of
convenience being in his favour and would suffer irreparable loss and
injury if no injunction is granted.
PRIMA FACIE CASE
▪ Martin Burn Ltd. v. R.N. Banerjee
□ Explaining the ambit and scope of the connotation "prima facie" case,
the Supreme Court observed that a prima facie case is not a case that is
finally proved, but a case in which there is sufficient initial evidence or
material to raise a serious and triable issue, assuming the facts
presented are true.
□ The question is not whether that conclusion is inevitable, but whether
it is plausible. Multiple interpretations are possible, but as long as one
reasonable interpretation supports the plaintiff, it’s enough to form a
prima facie case.
□ In other words, the Court must be satisfied that there is a bona fide
dispute raised by the applicant and on the facts before it there is a
probability of the applicant being established to the relief claimed by
him.
▪ Mandati Ranganna v. T. Ramachandra
□ Tt is held that while considering an application for grant of injunction,
the Court will not only take into consideration the basic elements in
relation thereto, viz., existence of a prima facie case, balance of
convenience and irreparable injury, it must also take into consideration
the conduct of the parties.
□ Grant of injunction is an equitable relief. A person who had kept quiet
for a long time and allowed another to deal with the properties
exclusively, ordinarily would not be entitled to an order of injunction.

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 exclusively, ordinarily would not be entitled to an order of injunction.
□ The Court will not interfere only because the property is a very
valuable one. The Court dealing with such matters must make all
endeavours to protect the interest of the parties.

RULE 2A : CONSEQUENCE OF BREACH OR DISOBEDIENCE OF INJUNCTION

○ In non-compliance or breach of order made under rules 1 and 2, the Court
granting the injunction or making the order or any court to which the suit
proceeding is transferred, may
▪ Order for attachment of property in question
▪ Detention of such person in civil prison for a term not exceeding 3 months
▪ In the case where the breach continues for more than one year certain period,
the property attached may be sold.
○ No attachment made under this rule shall remain in force more than one year, at
the end of which time, if the disobedience or breach continues, the property
attached may be sold and out of the proceeds, the Court may award such
compensation as it thinks fit to the injured party and shall pay the balance, if any,
to the party entitled thereto.

RULE 3 : NOTICE
○ The court shall, before granting an injunction, give notice to the opposite party,
except where it appears that the object of granting the injunction would be
defeated by delay.
○ But the proviso added by the Amendment Act of 1976 lays down that when an ex
parte injunction is proposed to be given, the court has to record reasons for
coming to the conclusion that the object of granting injunction would be defeated
by delay.
○ In such a situation, the court shall order the applicant to send
▪ A copy of affidavit filed in support of the application
▪ A copy of the plaint
▪ Copy of documents on which the applicant relies
○ The court shall make an endeavour to dispose off the application within 30 days
from date on which ex parte injunction is granted.
○ Where the court fails to do so, it has to record reasons for the same
○ Morgan Stanley v. Kartick Das
▪ The Supreme Court indicated the factors which should weigh with the Court
in grant of ex parte injunction:
□ whether irreparable or serious mischief will ensue to the plaintiff,
□ whether the refusal of ex parte injunction would involve greater
injustice than the grant of it would involve.
□ the Court will also consider the time at which the plaintiff first had
notice of the act complained so that the making of improper order
against a party in his absence is prevented.
□ that the Court will consider whether the plaintiff had acquiesced (to
accept something without argument) for sometime and in such
circumstances it will not grant ex parte injunction.
□ the Court would expect a party applying for ex parte injunction to
show utmost good faith in making the application.
□ even if granted, the ex parte injunction would be for a limited period of
time.
□ general principles like prima facie case, balance of convenience and
irreparable loss would also be considered by the Court.
▪ The purpose of rule 3, Order XXXIX is to enable the opposite party to show
cause against issuance of such injunction and if injunction issued without
notice, to enable the opposite party to file objections thereto and by this to
prevent the petitioner to retain undue advantage of the situation and abuse of
the process of law.
○ Sameer Bhojwani v. Aurora Properties

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 ○ Sameer Bhojwani v. Aurora Properties
▪ The Supreme Court emphasized that an interim mandatory injunction is not
a remedy that is easily granted. It is an exceptional and drastic order that
compels a party to perform a positive act at the interlocutory stage of
litigation, before the final adjudication of rights.
▪ Such injunctions are granted only in clear and compelling circumstances
where the prima facie material justifies a finding that the status quo has been
altered by one party, and the interests of justice demand restoration of the
status quo ante by way of an interim mandatory injunction.
▪ Laid down guidelines in granting of interlocutory mandatory injunctions
□ The plaintiff must have a strong case for trial, a higher standard than
the usual prima facie case required for prohibitory injunctions.
□ There must be a necessity to prevent irreparable or serious injury,
which cannot be compensated by monetary damages.
□ The balance of convenience must be in favor of the party seeking the
injunction

QUIA TIMET INJUNCTIONS

- Developed in English jurisdiction and is used in terms of anticipation i.e., there is a
probability that rights may be violated in future.
- It can be used when a Plaintiff’s right hasn’t been injured yet, but it is feared or
threatened to be hurt.
- This order can be permanent or temporary, prohibitive or mandatory
- Angela v. Sec. of States of Environment, Food and Rural Affairs (2004)
○ The court in this case held that quia timet injunction is given to avoid a danger or
expected violation of plaintiff's right.
○ Furthermore, there must be a clear and strong proof that a real violation is likely
to occur.
○ The sitting lord divided the injunction in two forms
▪ Where the defendant hasn't done any damage yet but he is threatening to
cause irreparable damage to the plaintiff or his property.
▪ The plaintiff has to be merely compensated for the damage he has suffered
and there is a probability that the defendant's action in future might lead to
more lawsuits.
- Mars Inc. v. Kumar Krishna
○ Recognized in India

MAREVA INJUNCTOIN
Known as a freezing order or an interim/interlocutory ad personal injunction
- Used in cases where there is a threat of fraudulent property -- freeze the assets
- It is a legal remedy that is frequently employed in instances of fraudulent activities or
asset misappropriation.
- Mareva Company v. International Bulk Carriers
○ An asset preservation order was passed restricting the party from disposing their
assets.
○ Here, there is an implementation of an asset preservation order which restricts a
party from disposing of or dissipating their assets, thereby ensuring their
availability to satisfy a prospective judgement.
- They are not foreign to Indian cases and passed in terms of attachment.
- Mohit Bhargava v. Bharat Bhushan
○ Court recognized the applicability of Mareva injunction in terms of Indian Law.

ANTON PILLER INJUNCTION

- Are used in IPR issues and enables a party to gain access to the premises of another
party for the purpose of confiscating or searching infringement materials and evidences.
- This is common practise with the aim of impeding the obliteration or displacement of
vital evidence
- They are called as John Doe Orders or Pre-infringement injunction. Used to create a

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 - They are called as John Doe Orders or Pre-infringement injunction. Used to create a
creator's IP rights in artistic works like music and movies.
- The John Doe order is also known as the Rolling Anton Pillar, Anton Piller, or Ashok
Kumar order(under Indian Law).
- As per Order 30 Rule 1 of the Code of Civil Procedure, a Plaintiff may ask the court
for a John Doe order if they have good case and cause to believe that
○ their information will be used to violate trade secrets,
○ copyrights, trademark or any of their works will be copied for financial gain.
- Taj Television v. Rajan Mandal
○ The Delhi High Court issued its first “John Doe order” also known as a “Ashok
Kumar order”.

DYNAMIC INJUNCTION
- In changing trend and to counter the growing effects of digital piracy, the Indian Courts
have lately granted “dynamic injunction” against rogue websites and URLs.
- This new concept of injunction aids in the fight against digital piracy and offers
efficient remedies to Intellectual Property holders.
- Which are not static in nature but are of multi fold purposes
- UTV Software v. 1337X
○ Justice Pratibha Singh defined “dynamic injunction” as an injunction order that is
not static but dynamic, because of this, even if the first injunction order might
only apply to one website, it will automatically extend to any mirror websites that
are made.
- Usually used against websites and URLs. Justice Pratibha Singh applies in the above
case and thereafter has been use to not only one website but also other mirror websites.

_______________________

INTERLOCUTORY ORDERS [O39 R6-10]

- These rules provides for various situation where the court
- The term interlocutory order has not been decided but is there in civil rules of practice
(read in consonance to understand the intricacies). R2(J) defined interlocutory
application as an application to the court in any suit, appeal, or proceeding already
instituted in such court other than a proceeding for execution of decree or an order.
- Any orders passed in terms of these applications is called as an interlocutory orders.
- Sub-Committee on Judicial Accountability v. Union of India
○ Interlocutory orders must not be passed if it were to have any inference of
prejudging some important and delicate issue related to the main matter.

_______________________

RECIEVERS [O40]
- Is a neutral person appointed by the court to act as a trustee of the property.
- A receiver is a neutral individual appointed by the court to take possession of and
manage property or funds that are the subject of a legal dispute
- Where there is a dispute with regards to a property and the court does not trust neither
of the parties, the court will appoint an receiver who will act as the carte taker of the
property
- Receiver is the officer of the court.
- Maharaj Jagat Singh v. Sawai Bhawani (1993)
○ The court held that receiver is an impartial person appointed to resolve and
oversee the property in dispute particularly in cases where neither party should
have exclusive control over it during the litigation.
- It is for the purpose of maintenance of property or funds. Even in company law cases,
where the company is going under insolvency, such receivers are appointed
- Receivers are of two types

CPC [DONE] Page 92

- Receivers are of two types
○ Statutory Receivers
▪ These are appointed under specific statutes that provide for such
appointments in certain types of cases. For example, insolvency laws or
company laws may allow the appointment of a receiver to manage assets of
a bankrupt entity.
○ Appointed under CPC
▪ These are appointed by courts under the provisions of Order 40 CPC in civil
disputes where property needs to be protected during litigation.

PURPOSE
○ To protect, preserve, and manage the disputed property during the pendency of
litigation.
○ This ensures that neither party exploits or damages the property before the final
judgment is delivered.
○ P. Lakshmi Reddy v. Lakshmi Reddy 91957)
▪ The SC emphasised that the role of receiver is to safeguard the interest of
both parties and maintain status quo of the disputed property.
○ Since the receiver functions as an officer of the court, their role is to act in a
fiduciary capacity and ensure impartiality.
○ The court may find it necessary to appoint a receiver when it deems that such an
appointment would be in the best interest of all involved parties.
○ This appointment is particularly common in cases involving movable or
immovable property.

- Mahendra Patel v. Ram Narain Singh

○ To appoint a receiver, an application has to be made before the court. Court
cannot appoint a receiver Suo moto.

RULE 1 : APPOINTMENT OF A RECEIVER

○ Provides for ground on which receiver can be appointed.
○ A court may appoint a receiver before or after a decree if it deems it just and
convenient. The receiver is given authority to:
▪ Take possession of the disputed property
▪ Remove unauthorized occupants from the property
▪ Manage and protect the properties, ensuring proper upkeep.
▪ Collect rents and profits from the property
▪ Defend legal claims related to the property
○ The court grants powers which it considers necessary. Not all powers may be
granted.
○ Implies that the power is limited to extent which has been granted by the court
○ Rule 1(d) deals with powers -- The court may confer upon the receiver anyof the
following powers:
▪ To institute and defend suits
▪ To realise, manage, protect, preserve, and improve the property
▪ To collect, apply, and dispose of the rents and profits
▪ To execute documents
▪ Any other powers as it thinks fit
○ But he has no power except the one which is conferred on him by the order of the
court. It is open to the court not to confer all of the above powers.

RULE 2 : REMUNERATION
○ Remuneration of the receiver
○ Based on the extent of powers given

RULE 3 : DUTIES
○ Duties of the receiver
▪ Furnish such security (if any) as the Court thinks fit, duly to account for

CPC [DONE] Page 93

 ▪ Furnish such security (if any) as the Court thinks fit, duly to account for
what he shall receive in respect of the property;
▪ Submit his accounts at such periods and in such form as the Court directs;
▪ Pay the amount due from him as the Court directs; and
▪ Be responsible for any loss occasioned to the property by his wilful default
or gross negligence.

DUTIES OF RECEIVER
○ Manage and maintain the property in its status quo. If fails to perform duty then,
Rule 4 would apply.

RULE 4 : LIABILITIES
○ If he fails to fulfil his duties (fails to submit accounts, or fails to pay the amount
sue, or occasions loss to the property by his wilful default or negligence), the
Court may direct his property to be attached and may sell such property, and may
apply the proceeds to make good any amount found to be due from his or any loss
occasioned by him, and shall pay the balance (if any) to the receiver.

PROCEDURE FOR REMOVAL OF RECEIVER

○ The court also has inherent power to remove the receivers appointed by it.
○ There is no set procedure for removing the receiver
○ Section 16 General Clauses Act - The power to appoint includes the power to
remove.
○ The court has inherent powers to remove the receiver.

SUING THE RECEIVER

○ A receiver cannot be sued without the leave of the court.

CPC [DONE] Page 94

WITHDRAWL & COMPROMISE - ORDER 23
25 May 2025 12:20 AM

WITHDRAWL & COMPROMISE

- There are two kinds of withdrawal under O23 R1
○ Absolute withdrawal (Abandonment of suit)
○ Conditional Withdrawal (With the leave of the court)
- It is the plaintiff and plaintiff alone who can withdraw the suit.
- Cases where sub-rule (1) of rule 1 will apply, it generally happens without the leave of
the court. This is called absolute withdrawal. But once it happens, you are barred by the
principle of res judicata to file a fresh suit for the same subject matter.
- However if it is a conditional withdrawal, the plaintiff would generally seek the leave of
the court, that I would like to withdraw in toto or in part and the court approves, the
plaintiff is not barred for filing a fresh suit. [Subrule 3 Rule 3)
- This is read in consonance with Sec. 11 and 12 of the CPC.
- Sub-rule 3 is an exception, makes provisions of S. 12 inapplicable in such cases where
the plaintiff has sought the leave of the court for conditional withdrawal.
- Can only be done by the plaintiff
- RULE 1 SUBRULE 1
○ Withdrawal without the leave of the court. Says that at any point of time after
institution, the plaintiff may abandon is suit or part of his claim against all or any
of the defendant without the leave of the court
○ This right is absolute and unqualified. If he decides to abandon, the court cannot
refuse to not abandon the suit or compel the plaintiff unless there has been a
vested right, for example if the suit is a stage where it would be a waste of time
like just before the judgment.
○ The underlying objective is that the plaintiff decides to withdraw the suit without
permission of the court, he would have been deemed to forfeit his eight.
○ There has to be imposition of cost. Where the plaintiff decides to withdraw, there
are two consequences.
▪ The plaintiff is liable to pay costs
▪ He is precluded to filing a new suit on the case cause of actions
○ This is consequences of non-fulfilment of conditions under R1 SC1.
○ However, if the plaintiff wants to withdraw with the permission to file a fresh suit
in respect of same subject matter, the Code confers discretionary power to allow
such withdrawal.
- RULE 1 SUBRULE 3
○ If the plaintiff decides that he needs to get some sort of confirmation from the
court, this rule comes into play.
○ The provision uses the term "may". Thus, the power is discretionary.
○ When can the court decide
▪ Where the court is satisfied that the suit is likely to fail by reason of formal
defect
▪ There exists sufficient grounds to grant such leave
○ When you seek withdrawal, you are ensuring that if the court approves, it does not
preclude his from filing a fresh suit.
○ Any such approval is neither a decree or an appealable order. However, you can
go for revision.

FORMAL DEFECT
○ The term "formal defect" has been used. It means those defects which do not
affect the merits of the case.
○ V. Rajendran v. Pandian
▪ Formal defect is a defect of form prescribed by rules of procedure.
▪ Observed that the term formal defect must be given a liberal meaning, thus,

CPC [DONE] Page 95

 ▪ Observed that the term formal defect must be given a liberal meaning, thus,
any defect affecting the merits of the case or which goes to the root of the
matter cannot be said to be a formal defect.
○ For example, want of notice under Section 80 CPC, improper valuation of the suit,
affixing insufficient court fee, ambiguity regarding identification of the suit
property, misjoinder of parties, failure to disclose a cause of action, etc.

○ SUFFICIENT GROUND
○ The term "sufficient ground", is very disputed.
○ Since various High Courts have made diametrically opposite interpretations of the
term other “sufficient grounds” in sub-rule (3)(b), it has always remained an area
of contention.
○ Jagadeesan v. Baskaran MADHC
▪ Interpreted the term to means that it should be considered ejusdem generis
with formal defect since sufficient ground means of defect that does not
result from the plaintiff's own fault.
▪ You have to read it same as formal defect - liberally construed.
○ Basant Ray v. Mehmood ORRHC
▪ Held that the legislative policy in the matter of exercise of discretion is clear
from the provision in which two alternatives are provided.
□ Where the court is satisfied that the suit must fail due to formal defect
and the other where the court is satisfied that there are sufficient
grounds for allowing the plaintiff to institute a fresh suit for the subject
matter or part of claim.
▪ We cannot read ejusdem generis, but it is wider to the term formal defect.
Any defect which is not listed as a formal defect might be covered under
sufficient ground.

SUBJECT MATTER
○ The term "Subject matter".
○ Vallabh Das v. Madan Lal
▪ Defined the term subject matter to mean
□ Cause of action for instituting the suit.
□ Relief claimed by the plaintiff
□ Bundle of facts that must be proven by the plaintiff in order to obtain
relief by the court.

EFFECT OF APPLICATION / EFFECT OF LEAVE

○ Plaintiff may do so in an application and the court may also do it Suo moto Asking
the plaintiff to withdraw.
○ Once the leave has been granted, the plaintiff would be restored to his original
position and the period of limitation would also applied similarly.

SUBRULE 2 RULE 1
○ Where the plaintiff is a minor, no suit can be abandoned except without the leave
of the court.
○ Creates an exception.

SUBRULE 5 RULE 1
○ When there are two or more plaintiff, the suit or part cannot be abandons expect
without the agreement of all the plaintiff. However, of one of the plaintiff has a
separate interest, he can do -- it cannot affect the interest of other plaintiffs.

RULE 2
○ If a fresh suit is filed after withdrawing a previous one, the limitation for the new
suit is calculated as if the first suit had never been filed.

COMPROMISE

CPC [DONE] Page 96

COMPROMISE
- RULE 3
○ It is stated that any dispute which can be resolved through litigation can also be
resolved through comprise.
○ In such cases if the parties decide to enter into compromise, rules 3, 3A, and 3B
○ Conditions for a valid compromise
▪ It must be entered in writing
▪ It must be signed by all the parties
▪ It must be in consonance with all the applicable laws.
○ Then the court will pass a compromise decree. But certain conditions:
▪ Jurisdiction: Must be entered into the court record of the original presiding
judge where the trial has been instituted.
▪ A pleader representing his client is authorized to enter into a settlement on
behalf of his client. However in such cases the court would give notice to the
affected parties before granting permission.
○ A compromise decree does not have a legal status as a decree under the CPC as
there is no adjudication.
○ Following conditions must be satisfied before a consent decree is passed
▪ There must be an agreement or compromise entered into between the parties
▪ It must be lawful
▪ It must be recorded by the court
▪ It must be in writing and signed by the parties
▪ A compromise or a consent decree must have been passed.
○ Compromise decrees can be appealed but no fresh suit would lie. 96(3) says
consent decree cannot be appealed. But there are certain circumstances where it
can still be appealed -- like passed without jurisdiction, entered into by fraud, etc.
○ Only difference between ordinary and compromise decree is that compromise
decree can even be challenged at the time of execution.
○ 3B adds provisions for representative suits. O1 R8. No agreement or compromise
to be entered in a representative suit without leave of Court. Any such agreement
or compromise entered into without the leave of the Court so recorded shall be
void.

CPC [DONE] Page 97

Death, Marriage, & Insolvency - Order 22
25 May 2025 12:31 AM

PROVISIONS REGARDING DEATH

- Order 22 deals with Creation assignment or devolution of interest may arise in various
circumstances.
- It also applies to appeals but not to execution proceedings. The provisions under Order
22 are exhaustive
- They should be liberally construed to serve ends of justice.
- Such creation, assignment or devolution of interest may arise in the following
circumstances:
○ Death of a Part. The rules regarding death of a party is governed under Rules 1-6
and 10A under Order 222.
○ Marriage of a party. Rule 7
○ Insolvency. Rule 8
○ Abatement or dismissal bars further suits on same cause of action. Rule 9
○ Assignment of interest. Rule 10
○ Application in cases of appeal. Rule 11
○ Non-application of Rule 3, 4, and 8 to execution proceedings. Rule 12.
- Rule 22 is exhaustive in nature and there is
- Applies only till appeal stage and not in execution -- because final decree has been
passed. If the plaintiff passes away, it would not affect the execution. Rule 12

DEATH OF A PARTY
○ The right to sue should survive is the most important consideration. If it does not,
the suit will abate and if it subsists, the suit will continue.

DEATH OF PLAINTIFF
○ Covered under Rule 1, 2, and 3.
The governing circumstances Consequences
Where the sole plaintiff dies The suit will not abate if right to sue
survives
If the right to sue doesn’t survive the suit
abates.
Where one of several plaintiffs dies The right to sue will delve on the surviving
plaintiffs. The court will record the same
and the suit proceeds with respect to
surviving plaintiffs.
Where out of several plaintiffs, one On an application of the legal
dies and right to sue does not representative, he will be substituted in the
survive place of deceased plaintiff. (Time bar for
the same is 90 days under the CPC --
Application for substitution). If not done
within 90 days, the suit will abate. The
defendant can ask the court to award the
costs to be recovered out of the estate of the
deceased plaintiff.

○ If the plaintiff dies before the passing of the judgment, Rule 6 provides that if the
plaintiff dies after hearing, but before the pronouncement of the judgment, the suit
shall not abate.

DEATH OF DEFENDANT
○ Covered under Rule 4
The governing circumstances Consequences

CPC [DONE] Page 98

 The governing circumstances Consequences
Where the sole defendant dies The suit will not abate if right to sue survives
If the right to sue doesn’t survive the suit abates.
Where one of several defendants The court is going to substitute that person with that of the
dies deceased person -- Limitation of 90 days for substitution. If
no application is filed then the suit will abate.

Where the defendant was a non-contesting party, the court

can pronounce the judgment if it deems fit -- presumed as if
the judgment was passed before the defendant passed away.
You will have vested right to have the execution done vis-a-
vis the estate of the defendant by virtue of this position.

Where the plaintiff is not aware, it may seek additional time

period of 90 days because he was not aware of the death. If
the suit has been abated, the plaintiff may make an
application for setting aside such abatement within 90 days.

***The plaintiff applies after the expiry of the period

specified therefor in the Limitation Act, 1963 (90 days), for
setting aside the abatement and also for the admission of that
application under section 5 of that Act on the ground that he
had, by reason of such ignorance, sufficient cause for not
making the application within the period specified in the said
Act, the Court shall, in considering the application under the
said section 5, have due regard to the fact of such ignorance,
if proved.

SURVIVAL OF RIGHT TO SUE

○ In determinant the right to sue, the court applies certain tests
▪ The survival of right to sue is significant in cases where the deceased parties
legal representatives have a vested interest in the outcome of the suit.
▪ In such cases, the courts are inclined to substitute legal representatives to
ensure that the suit is adjudicated on merits rather than being dismissed on
procedural grounds.
▪ Examples: A suit for assault, personal injury, malicious prosecution,
dissolution of marriage, etc.

RULE 10A : DUTY OF COURTS

○ Casts upon a statutory duty on the court to give notice of the death of one party to
another and it is observed in letter and spirit.
○ Only applies of appeal and on execution.

RULE 6 : DEATH AFTER HEARING

○ Where either party dies after conclusion of hearing but before pronouncement of
the judgment, the proceedings would not abate.
○ The same principle applies to appeal.

WHAT HAPPENS IF THE SUIT GETS ABATED

○ If within the span of 90 days, there is no substitution, if the suit abates, no fresh
suit can be file don the same cause of action. This does not mean res judicate,
because order of abatement is passed due to death of a party -- no conclusive
determination of right but only by virtue of Rule 9.
○ Where the suit abates or is dismissed due to failure of the plaintiff to bring the
legal representative or representatives of the deceased party, no fresh suit will lie
on the same cause of action.
○ Such abatement or dismissal of the suit, however, does not operate as res judicata.

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 ○
○ The only remedy available to the plaintiff or the person claiming to be the legal
representative is to get the abatement set aside.

RULE 7 - MARRIAGE OF A PARTY

○ Marriage, as a legal event, generally does not affect the continuation of a civil suit
○ Can the liability be ties to husband's assets
○ Where the decree is passed against a female defendant, it may be executed against
her alone.
○ In terms of rule 7 the suit will proceed against the party as if the marriage never
took place. However if a decree is passed against a married women, there are
certain special consideration
▪ In case of execution, the court may ask execution against her husband, if
□ The husband is legally entitled to the subject matter of the decree, or
□ Liable for the debt incurred by his wife
○ For example, if a decree is executed against a married woman for the payment of a
debt and her husband is legally liable for that debt, the court may allow the decree
to be executed against the husband.
○ This provision is particularly relevant in cases involving joint family properties,
dowry claims or financial obligations arising from the marriage.

RULE 8 - INSOLVENCY
○ Insolvency, as a legal condition, can significantly affect the continuation of a civil
suit. The CPC provides detailed provisions under Order XXII, Rule 8, to address
the implications of insolvency on the litigation process.

○ Insolvency of a Plaintiff
▪ When a plaintiff becomes insolvent during the pendency of a suit, the court
must consider whether the suit can continue for the benefit of the creditors.
If the court decides yes, there are four key provisions
□ Continuance of the suit itself: If the plaintiff becomes insolvent the suit
does not abate automatically. The assignees or the receivers under
insolvency laws will continue the suit for the benefit of the creditors.
□ Role of assignee or receiver
 The assignee or receiver, who is responsible for managing the
insolvent estate, may apply to the court to be substituted in place
of the insolvent plaintiff.
 The court may require them to provide security for costs of the
suit. If they fail to provide the same., the court may dismiss the
suit, leading to its abatement.
□ Application by the defendant
 If the assignee or receiver declines to continue the suit or fails to
provide the necessary security, the defendant may apply to the
court for the dismissal of the suit.
 The court may also order the defendant to be paid costs from the
estate of the insolvent plaintiff.
□ Effect of insolvency on decree
 In case the judgment has been passed and then the plaintiff has
been declared insolvent, the execution will continue by the
assignee or the receiver and any additional benefit can be paid to
the creditors.
 The court may direct that the proceeds of the decree be applied
for the benefit of the creditors, subject to any legal obligations
arising from the insolvency.

○ Insolvency of Defendant
▪ The insolvency of a defendant does not automatically lead to the abatement
of a suit.
▪ It given time to the assignee or receiver to decide of the suit should be
continued in the future.

CPC [DONE] Page 100

 continued in the future.
▪ However, the court may stay the proceedings if it deems it necessary to
protect the interests of the insolvent defendant’s creditors. The following
points are crucial:
□ Stay of Proceedings
 If the defendant becomes insolvent, the court may stay the
proceedings to allow the insolvency process to take its course.
 The stay is typically temporary, allowing the assignee or receiver
to assess the situation and determine whether the suit should
continue.
□ Role of assignee or receiver
 Similar to the plaintiff’s insolvency, the assignee or receiver may
apply to the court to be substituted in place of the insolvent
defendant.
 The court may require the assignee or receiver to provide security
for the costs, failing which the suit may proceed against the
defendant’s estate.
□ Impact on execution
 If a decree has been passed against an insolvent defendant, the
execution may be stay to allow the insolvency process to unfold.
 The court may further direct the proceeds from execution be
applied for the benefit of the creditors ensuring that the state is
distributed equitably.

RULE 10 - ASSIGNMENT OF INTEREST

○ In other cases of an assignment, creation or devolution of any interest during the
pendency of a suit, may, by leave of the Court, be continued by or against the
person to or upon whom such interest has come or devolved.
○ Rule 10 is based on a principle that the trial of a suit cannot be brought to an end
merely because the interest of a party in the subject-matter of the suit has
devolved upon another during the pendency of the suit, but the suit may be
continued against the person acquiring interest with the leave of the court.

CPC [DONE] Page 101

Trial & Hearing - Order 16
25 May 2025 01:12 AM

TRIAL
- There is a difference between trial and hearing -- hearing means evidence is being
admitted, examination of witnesses, etc.
- Trial is at a broader term and starts on the day the plaint has been started.

- After the plaint has been presented by the plaintiff and the written statement by the
defendant in the court and the issues have been framed by the court, a stage is reached
when the parties to the suit are in a position to know what facts and what documents
should be proved by them.
- For this purpose, any party to the suit may apply to the court for summons to persons
whom he proposes to call as his witnesses.
- Sections 30-32 and Orders 16 to 18 contain necessary provisions for summoning,
attendance and examination of witnesses.
- Order 16 provides for summoning and attendance of witnesses. Order 16-A makes
special provisions for attendance of witnesses confined or detained in prisons.
- Order 17 deals with adjournments whereas Order 18 deals with hearing of suits and
examination of witnesses.

SUMMONING AND ATTENDANCE OF WITNESS [ORDER 16]

RULE 1 : LIST OF WITNESSES

○ Sub-rule (1) of Rule 1 requires the parties to the suit to submit in court a list of
witnesses whom they propose to call either to give evidence or to produce
documents and to obtain summonses for their attendance in court.
○ Such list must be filed on or before such date as the court may appoint but not late
than fifteen days after the issues are framed.
○ Sub-rule (3) of Rule 1 empowers the court to permit a party to call any witness
whose name has not been mentioned in the list filed under sub-rule (1), if such
party shows sufficient cause for the omission to mention the name of such witness
in the said list.

RULE 1A : PRODUCTION OF WITNESSES WITHOUT SUMMONS

○ Rule 1-A enables a party to bring any witness to give evidence or to produce
documents without applying for summons.
○ Rule 1 and 1-A operate in two different areas and cover two different situations.
○ Where the party wants to have assistance of the court to ensure presence of a
witness on being summoned through the court, it is obligatory for him to follow
the procedure laid down in Rule 1.
○ But when he wants to produce his witnesses without any assistance of the court,
he can do so under Rule 1-A and the court has no jurisdiction to decline to
examine such witnesses.
○ The power of the court to examine a witness suo motu is discretionary. It should
be exercised to secure the attendance of a witness whose evidence appears to the
court to be necessary.

RULES 2-4 : EXPENSES OF WITNESSES

○ Rules 2 to 4 provide for travelling and other expenses and remuneration of a
witness for his attendance in court.
○ A witness cannot be ordered to attend in person unless he resides within the
territorial jurisdiction of the court or within certain limits.

CONTENTS OF SUMMONS

CPC [DONE] Page 102

CONTENTS OF SUMMONS
○ Every summons issued to a witness should contain the following particulars:
▪ The time and place at which he is required to attend.
▪ The purpose of his attendance, i.e., whether his attendance is required for the
purpose of giving evidence or to produce a document, or for both the
purposes
▪ The document which he is called upon to produce should be described with
reasonable accuracy.

RULE 9 : SERVICE OF SUMMONS

○ Every summons to a witness should be served as nearly as may be in the same
manner as a summons to the defendant as contemplated by Order 5.
○ It should give a reasonable time to a witness for preparation and for travelling to
the place at which his attendance is required.
○ Rule 7-A provides for direct service of summons by a party and the procedure for
such service.

RULES 10-14 : FAILURE TO COMPLY WITH SUMMONS

○ The court has power to enforce the attendance of any person to whom a summons
has been issued and for that purpose, may:
▪ Issue a warrant for his arrest
▪ Attach and sell his property
▪ Impose a fine upon him not exceeding Rs. 5000
▪ Order him to furnish security for his appearance and in default commit him
to civil prison
○ Rule 10 contemplates consequences for non-appearance by a party in spite of
service of summons.
○ If he had a genuine excuse for non-appearance then the court can revoke the order.
○ [Rule 10] It states that where a person to whom a summons has been issued, either
to attend to give evidence or to produce a document, fails to comply with such
summons without lawful excuse or intentionally avoids service of summons, the
court may issue a proclamation requiring him to attend to give evidence or to
produce a document at a time and place mentioned therein and a copy of such
proclamation should be affixed on the outer door or other conspicuous part of the
house in which he ordinarily resides.
○ Where the person appears after the attachment of his property and satisfies the
court that he did not fail to comply with the summons without lawful excuse or
did not intentionally avoid service and that he had no notice of the proclamation,
the court shall release the property from attachment.
○ If, however, such person does not appear or appears but fails to satisfy the court,
the court may impose upon him a fine not exceeding five hundred rupees as it
thinks fit, having regard to his condition of life and all the circumstances of the
case and attach and sell the property for recovery of the same.
○ It is duty of the court to enforce the attendance of witnesses summoned by the
parties, if necessary by coercive process.
○ These provisions are essential and have been enacted with a purposeful eye,
because the contesting parties in a suit usually have no control over witnesses who
may be required to give evidence.
○ The machinery of the court for redress of injustice will be rendered altogether
ineffective if a party is not enabled to examine such witnesses as may be
necessary in order to procure a just decision from the court on the matter at issue
between the parties.
○ Rule 10 thus exhibit authority of the court and is penal in nature.

RULE 16 : ATTENDANCE OF PRISONERS

○ Order 16-A provides for attendance of prisoners to give evidence if the court is of
the opinion that their evidence is material in the suit except where they are
physically unfit to do so.

CPC [DONE] Page 103

 physically unfit to do so.
○ However, if the prison is situated at a distance of more than 25 kms from the
courthouse, no such order shall be made unless the court is satisfied that the
examination of such person or commission will not be adequate.

ADJOURNMENT [ORDER 17] -- IMP

- 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.
- Court may grant adjournment if it is satisfied that there is sufficient cause. The
party must record reasons in writing.
- Court may impose costs for adjournment to discourage misuse.
- 2002 Amendment, the max time for which you can seek adjournment is now listed in
CPC.
- Law Commission had suggested to put a cap.
- 3 is the max limit -- Order 73

Salem Advocates Bar Assn. v. Union of India

○ Whether the 1999 and 2002 Amendments to the Civil Procedure Code, 1908 were
constitutionally valid?
○ The Supreme Court acknowledged that while adjournments are sometimes
necessary, granting them routinely without justification can hinder the progress of
cases and burden the judicial system.
○ The court recognized that limiting adjournments may cause hardship in some
cases, but it ultimately concluded that the need to expedite justice outweighs the
inconvenience of adhering to the limitation.
○ The court clarified that the limitation of three adjournments does not apply in
situations where an adjournment is necessary due to circumstances beyond the
control of a party.

RULE 2 : FAILURE TO APPEAR

○ It provides that where parties fail to appear even on adjourned day, the court may
▪ proceed to dispose of the suit in one of the modes mentioned in Order 9
[Non-appearance] or
▪ proceed with the case even in the absence of the party where evidence or
substantial portion thereof of such party has already been recorded as if such
party were present, or make such other order as it thinks fit.

RULE 3 : POWER OF THE COURT TO PROCEED WITH THE CASE

○ Rule 3 declares that where any party to a suit whom time has been granted fails
▪ To produce evidence
▪ To cause of attendance of a witness
▪ To perform any other act necessary to further progress of the suit for which
the time has been allowed
○ The Court may
▪ If parties are present, proceed to decide the suit
▪ If parties are absent proceed under Rule 2 [Failure to Appear]
○ Before such order can be passed, court must be satisfied
▪ Adjournment was granted at instance of party
▪ Adjournment was granted to enable party to produce evidence or cause
attendance of witness or perform any other act necessary for further progress
of suit and
▪ Party must have failed to perform any of the acts for which the time had
been granted.

CPC [DONE] Page 104

 been granted.

HEARING OF SUIT [ORDER 18]

RULE 1 :
○ According to Rule 1 of Order XVIII, the plaintiff typically has the right to begin
presenting their case.
○ This aligns with Sections 101 to 114 of the Indian Evidence Act, 1872, which
place the burden of proof on the party asserting a fact.
○ However, if the defendant admits the facts alleged by the plaintiff but contends
that, based on legal grounds or additional facts, the plaintiff is not entitled to the
relief sought, the defendant may be granted the right to begin.

RULE 2 : SEQUENCE OF PRESENTING CASE

○ The party with the right to begin states their case and produces evidence
supporting the issues they are obligated to prove.
○ Subsequently, the opposing party states their case, produces their evidence, and
may address the court on the entire case.
○ The party beginning may then reply generally on the whole case.
○ This structured approach ensures clarity and allows each party a fair opportunity
to present their arguments and evidence.

RULE 4-5 : EXAMINATION OF WITNESSES

○ The examination of witnesses is a critical component of the trial process,
governed by Rules 4 and 5:
○ Examination-in-Chief
▪ As per Rule 4(1), the examination-in-chief of a witness shall be on affidavit,
with copies supplied to the opposite party. This amendment aims to expedite
the trial process by reducing the time spent on oral examinations in court.
○ Cross-Examination and Re-Examination
▪ The cross-examination and re-examination of witnesses are conducted orally
in open court.
▪ This allows the court to observe the demeanour of witnesses and asses
their credibility effectively.

RULE 17 : RECALL WITNESS BY COURT

○ Rule 17 empowers the court to recall any witness who has been examined and
may put such questions to them as it thinks fit.
○ This provision is intended to clarify any ambiguities in the evidence.
○ However, courts have held that this power should be exercised sparingly and not
used to fill gaps in a party’s case.

________

After the completion of evidence and hearing of arguments, the court proceeds
to pronounce judgment. Order XX Rule 1.

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Judgment & Decree
12 May 2025 10:38 AM

JUDGMENT AND DECREES [Order 20]

- After hearing is completed, the court will pronounce the judgment. Rules 1-5 of Order
20 deal with judgments and Rules 6-19 deal with decrees.
- Rules 6-B and 20 deals with furnishing copies of judgment and decree to the parties on
application made by them on payment of specified charges.
- Sections 35A and 35B deal with payment of compensatory cost to person who had filed
a suit that the suit was filed on vexatious ground.

RULE 1[Imp] : PRONOUNCEMENT OF JUDGMENT

○ Once the hearing has been completed, the court shall pronounce the judgment in
open court on such days after giving a notice to the parties
○ Before amendment, there was no prescribed time for pronouncement of
judgment -- there was a lot of waste of time after hearing
○ There was a persistent demand all over India for imposing a time-limit for
delivery of judgment after the conclusion of hearing of a case.
○ 1976 LC suggested that let us introduce a time limit for pronouncement of
judgment, further so many judgment were produced by the sc that there should be
a time limit.
○ In spite of the fact that parliament decided on good conations that there should no
limit but it should be done within a reasonable time.
○ Pronouncement is essential because it gives a solution to the cause of action
○ Moreover, judgment must be based on grounds and points in the pleadings and not
outside the case put forward by the parties in their pleadings.
○ Court should record findings on all points raised by the parties and not decide any
question not raised from the pleadings of the parties or is unnecessary
○ Should contain the solution to all the issues which have been filed before the court
and must be based on the ground made in the pleadings and cannot go beyond it.
○ The language of the judgment must be dignified and restrained
○ After the judgment is pronounced, copies of the judgment should be made
available to the parties immediately on payment of charge.

RULE 3
○ Read with Section 114 of the CPC.
○ Once a judgment is signed by the judge it cannot be amended or altered except
▪ Where the changes are mandatory to correct clerical or arithmetical mistakes
or error due to accidental slip or omission. (Section 152)
▪ On review (Section 114)

RULE 5A
○ If in a particular civil case the parties are not being rep by pleader, the
responsibility is on the court to notify to the parties that can prefer an appeal and
also what would be the appropriate jurisdiction to appeal.
○ Once the court has made it understood, it should be written that in the judgment
(placed in record) about the same that parties has been notified.
○ Rule 20 provides for furnishing certified copies of the judgments and decrees to
the parties.

RULE 6A
○ Rule 6-A states furnishing of a copy of judgment to the party on payment of
charge for preferring an appeal.
○ A decree should be drawn up within 15 days from the date of judgment. If decree
is not drawn up, appeal can be preferred without filing a copy of the decree.
○ Decree should specify

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 ○ Decree should specify
▪ The number of the suit
▪ The names and description of the parties and their address
▪ The particulars of the claim
▪ The relief granted
▪ The amount of cost which in incurred
▪ The details of the devolution of the share of the property
▪ The date on which the judgment has been pronounced
▪ The signature of the judge
○ It is trh edecree which is the final basis of execution

RULE 8
○ Authorizes a successor judge to sign a decree drawn by a predecessor judge
○ In case of retirement, of any other kind of emergency due to which judge has to
vacate his position.

RULE 9 - 19 not important

INTEREST [S. 34]

- Where the decree is for payment of money, the court may award interest in such cases
as it may think fit.
- There are three kinds of interest
○ Interest which is prior to the filing of the suit
○ Interest pendente lite (from the date when the suit has been filed and is ended)
○ Interest from the date of decree till the payment

PRIOR TO SUIT
○ Section 34 no application to interest prior to institution of suit, since it is a matter
of substantive law.
○ It can be awarded only when there is an agreement, express or implied, between
the parties, or mercantile usage; or under a statutory provision, or by way of
damages.

INTERESR PENDENTE LITE

○ The award of interest from the date of the suit to the date of decree is at the
discretion of the court. Must be exercised on sound judicial principles

INTEREST FROM DATE OF DECREE

○ The award of interest from the date of decree to the date of payment is also at the
discretion of the court.
○ Can be awarded exceeding 6% p.a. but not exceeding the contractual rate of
interest or commercial rate of interest or prevailing market rate. [Central bank of
India v. Ravindra 2002]
○ The issue of compound interest in not covered and cannot be claimed as a matter
of right --- depends on contract.

- When decree is silent as far as interest is concerned, it is deemed to have been refused.

COSTS
- Dealt under Section 35, 35-A, 35-B and Order 20-A, Civil Procedure Code, 1908

General Costs Section 34

Compensatory Cost Section 35
Costs for Delay Section 35-B
Specific Costs Order 20A

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 Specific Costs Order 20A

OBJECTIVE
- The object of awarding costs is to indemnify a party against the expenses incurred in
successfully defending his rights.
- The section provides that the costs of suits and applications are in the discretion of the
court, though the discretion is very wide, but it has to be exercised judiciously and on
fixed principles.
- The general rule is that the successful party is entitled to costs unless he is guilty of
misconduct, negligence or omission or unless there is some other good cause for not
allowing costs.
- The same rule is expressed by the expression “Costs follow the event”, i.e., costs follow
the result of the suit

SECTION 35 : COMPENSATORY COSTS

○ (1) Subject to such conditions and limitations as may be prescribed, and to the
provisions of law for the time being in force, the costs of and incident to all suits
shall be in the discretion of the Court and the Court shall have full power to
determine by whom or out of what property and to what extent such costs are to
be paid and to give all necessary directions for the purposes aforesaid.
○ The fact that the Court has no jurisdiction to try the suit shall be no bar to the
exercise of such powers.
▪ This clause exists to discourage abuse of process, compensate the wronged
party, and protect judicial efficiency, even when the court eventually finds it
lacks jurisdiction.
▪ Even if the court lacks jurisdiction, the defendant may still have incurred
legal costs—such as:
▪ Engaging a lawyer
▪ Filing replies
▪ Appearing in Court
▪ It would be unfair if the defendant had to bear these costs simply because the
court dismisses the case on a jurisdictional ground without passing any cost
order. Hence, the court is still empowered to award costs to compensate the
defending party.
▪ If courts couldn't impose costs just because they lacked jurisdiction, it would
encourage forum shopping and procedural abuse. This provision deters
misuse by allowing courts to penalize such behaviour.
▪ Since judicial time has been consumed, the court must retain the power to
award costs to uphold the integrity of the system.
○ (2) Where the Court directs that any costs shall not follow the event, the Court
shall state its reasons in writing.
○ When a court refuses costs, no separate suit for it is maintainable. Where costs are
awarded in a decree an appeal lies for costs when ;
▪ A question of principle is involved
▪ The order proceeds upon a misapprehension of fact or law
▪ There has been no exercise of the discretion in making the order as to costs
▪ When the order is erroneous in law and improper

SECTION 35A : COMPENSATORY COSTS

○ This deals with Compensatory costs in respect of false or vexatious claims or
defenses.
○ The following conditions must be satisfied under this section, namely-
▪ The claim or defence must have been false or vexatious.
▪ Objections must be made by the other party that the party making the claim
or defence had knowledge of the fact that such claim or defence was false or
vexatious.
▪ Such claim or defence must have been disallowed or abandoned or
withdrawn in whole or in part.

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 withdrawn in whole or in part.
○ No court shall order payment of costs
▪ exceeding Rs.3000 or
▪ exceeding its pecuniary jurisdiction.
○ Further, this section also provides that where costs are to be awarded by Small
Causes Court or any court whose jurisdiction doesn’t exceed Rs.250, the High
Court may empower such court to award such costs as do not exceed Rs.250
under this provision or not exceeding such limits by Rs.100.
○ The High Court also has the power to limit the power of courts to award costs
under this provision.
○ Further, award of such costs under this provision shall not exempt any person
from criminal liability.
○ Also, the amount of compensation awarded in such cases must be taken into
consideration in a subsequent suit for damages or compensation in respect of such
claim or defence.

SECTION 35B : COSTS FOR DELAY

○ It is inserted to put a check upon the delaying tactics of litigating parties.
○ It empowers the court to impose compensatory costs on parties who are
responsible for causing delay at any stage of the litigation
○ Such costs would be irrespective of the ultimate outcome of the litigation, the
payment of cost has been a condition precedent for further prosecution of the suit,
if the party concerned is a plaintiff and the defence , if he is a defendant.
○ The provisions of this Section are mandatory in nature and therefore the court
should not allow prosecution of suit or defence, in the event of partly failing to
pay costs as directed by the court
○ If a party is unable to pay costs due to circumstances beyond his control , such as
strike of advocates or staff , declaration of the last day for payment of costs as
holiday, etc. the court can extend the time.
○ Ashok Kumar v. Ram Kumar
▪ The Supreme Court observed that the present system of levying meagre
costs in civil matters is wholly unsatisfactory and does not act as a deterrent
to luxury litigation . More realistic approach relating to costs is the need of
the hour.
○ Manohar Singh v. D.S. Sharma
▪ A conspectus of the above provisions clearly demonstrates that under the
scheme of CPC, a suit cannot be dismissed for non-payment of costs.
▪ Non-payment of costs results in forfeiture of the right to further prosecute
the suit or defence as the case may be. Award of costs, is an alternative
available to the court, instead of dispensing with the cross- examination and
closing the evidence of the witness.
▪ If the costs levied for seeking an adjournment to cross-examine a witness are
not paid, the appropriate course is to close the cross-examination of the
witness and prohibit the further prosecution of the suit or the defence, as the
case may be by the defaulting party.
▪ In this case, the plaintiff has harassed the defendants and its witness by
seeking repeated adjournments. In view of it, plaintiff's right to cross-
examine DW2 stands forfeited.
▪ However, as costs were levied, but were not paid, the court should have
closed the evidence of DW2, permitted the defendants to produce any
further evidence without any right to plaintiff to cross-examine such
witnesses.
▪ Then ought to have proceeded to dispose of the suit on merits by considering
the material available and hearing the arguments of defendant. The court
could not have dismissed the suit.
▪ There is a condition precedent under 35B to pay the costs next day and then
only the suit would proceed, but the said provision will not come in the way
of the court, in its discretion extending the time for such payment, in

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 of the court, in its discretion extending the time for such payment, in
exercise of its general power to extend time under section 148 of CPC.
▪ It is needless to say that such extension can be only in exceptional
circumstances and by subjecting the defaulting party to further terms.
▪ No party can routinely be given extension of time for payment of costs,
having regard to the fact that such costs under section 35B were itself levied
for causing delay.

MANNER OF PAYMENT OF COSTS

○ Under section 35-B payment of costs for adjournment is a condition precedent to
further prosecution of the suit by the plaintiff where the plaintiff is ordered to pay
such cost.
○ It is reasonable to conclude from the section that where the costs imposed are not
paid on that very date when the costs are ordered to be paid, attention of the court
should be drawn so that further prosecution of the suit may take place only if
necessary compliance has been made.
○ If no such step is taken by the party who intends to invoke the provisions of
section 35-B and remains silent and allows the court to proceed with the suit, he
cannot thereafter be allowed to agitate the alleged non-payment, if any, after that
date. In such a situation the provisions of section 35-B are not at all attracted.

DISCRETIONARY
○ The language of section 35-B of the Code of Civil Procedure neither suggests
explicitly nor by way of implication, a command to the Court, that the Court shall
not grant further adjournment at the request of such party in whose favour it has
once exercised its discretion to grant adjournment on payment of costs.
○ Notwithstanding the fact that he had complied with the order of payment of costs
in terms of the said section. To hold otherwise would lead to far reaching
consequences and result in failure of justice

Salem Advocates Bar Assn. v. Union of India

○ The Supreme court held that the costs have to be actual and reasonable, including
the cost of the time spent by the successful party, the transportation and lodging, if
any, or any other incidental cost besides the payment of the court fee, lawyer's fee,
typing and other cost in relation to the litigation.
○ It is for the High Courts to examine these aspects and wherever necessary make
requisite rules.

Sanjeev Kumar Jain v. Raghubir Saran Charitable Trust & Ors.

○ The Apex Court went into the Interpretation of the words "actual realistic costs".
○ It held that even if actual costs have to be awarded, it should be realistic which
means what a "normal" advocate in a "normal" case of such nature would charge
normally in such a case.
○ Assuming that costs could be awarded on such basis. The actual realistic cost
should have a correlation to costs which are realistic and practical.
○ It cannot obviously refer to fanciful and whimsical expenditure by parties who
have the luxury of engaging a battery of high-charging lawyers.

Ashok Kumar v. Ram Kumar

○ Present system of levying meagre costs in civil matters (or no costs in some
matters), is wholly unsatisfactory and does not act as a deterrent to vexatious or
luxury litigation borne out of ego or greed, or resorted to as a `buying-time' tactic
and that a more realistic approach relating to costs may be the need of the hour.
○ Though award of costs is within the discretion of the court, it is subject to such
conditions and limitations as may be prescribed and subject to the provisions of
any law for the time being in force.
○ Where the issue is governed and regulated by Sections 35 and 35A of the Code,
there is no question of exercising inherent power contrary to the specific

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 ○
there is no question of exercising inherent power contrary to the specific
provisions of the Code. Further, the provisions of Section 35A seems to suggest
that even where a suit or litigation is vexatious, the outer limit of exemplary costs
that can be awarded in addition to regular costs, shall not exceed Rs. 3000/-.
○ It is also to be noted that huge costs of the order of Rs. Fifty thousand or Rs. One
lakh, are normally awarded only in writ proceedings and public interest litigations,
and not in civil litigation to which Sections 35 and 35A are applicable.
○ The principles and practices relating to levy of costs in administrative law matters
cannot be imported mechanically in relation to civil litigation governed by the
Code.

Vinod Seth v. Devendra Bajaj

○ The provision for costs is intended to achieve the following goals:
▪ It should act as a deterrent to vexatious, frivolous and speculative litigations
or defences. The spectre of being made liable to pay actual costs should be
such, as to make every litigant think twice before putting forth a vexatious,
frivolous or speculative claim or defence.
▪ Costs should ensure that the provisions of the Code, Evidence Act and other
laws governing procedure are scrupulously and strictly complied with and
that parties do not adopt delaying tactics or mislead the court.
▪ Costs should provide adequate indemnity to the successful litigant for the
expenditure incurred by him for the litigation. This necessitates the award of
actual costs of litigation as contrasted from nominal or fixed or unrealistic
costs.
▪ The provision for costs should be an incentive for each litigant to adopt
alternative dispute resolution (ADR) processes and arrive at a settlement
before the trial commences in most of the cases.
▪ The provisions relating to costs should not however obstruct access to courts
and justice. Under no circumstances the costs should be a deterrent, to a
citizen with a genuine or bonafide claim, or to any person belonging to the
weaker sections whose rights have been affected, from approaching the
courts.
▪ In many other jurisdictions, in view of the existence of appropriate and
adequate provisions for costs, the litigants are persuaded to settle nearly 90%
of the civil suits before they come up to trial.

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Execution Proceedings
25 May 2025 12:21 AM

ORDER 21 - EXECUTION
- Execution is the last stage of any civil litigation.
- Means a process through which the decree holder will force the judgment debtor to
satisfy the conditions of the decree.
- The execution is complete when the decree holder gets actual relief awarded to him by
the court of law through judgment, decree or order.
- Order 21 does not only apply to suits per se but also to appeals.
- Execution happens by the court which has passed the decree. Copy of the decree has to
be submitted to the cleek who takes cares of the execution. But where the defendant
resides outside the jurisdiction of the court, then even the decree can be transfer to the
relevant court.
- The court which passed the decree may send it for execution to other court either on
application of the applicant (decree-holder) or by the court itself.
- MODES based on which the court may order for execution of decree
○ Always happens on the behest to the decree holder. Once you have the decree, file
for execution. There are various process the same can be done
▪ By delivery of the property (The court will mandate the JD to deliver the
property)
▪ By attachment and sell of property. (If the JD is hindering the possession,
auction will be conducted and property will be sold)
▪ Arrest and detention. (Where JD is hindering)
▪ Appointing of a receiver.
○ These methods are not exhaustive. The court may pass any such order it may seem
fit in the interest of justice
- Once the application of the decree holder is filed before the court, it is going to pass a
precept.
- The statement the court issues to the executing authorities is called precepts. This is the
where the execution materializes.
- Any question which arises for the execution of the decree will have to be raised before
the executing court itself and no separate suit can be filed [O21]. (intent - avoid
multiplicity and res judicata will apply)
- Decree where the JD has dies or insolvent or marriage, there can be legal reps who will
be subsequently bound to make sure the execution is completed.
- Where a decree is passed against a party as the “legal representative” of a deceased
person and decree is for payment of money out of the property of deceased person, it
may be executed by attachment and sell of any such property.
- Where immovable property has been sold by the court in execution of a decree such
sale shall be absolute. The property shall be deemed to be invested in the favour of
purchaser, and the purchaser shall be deemed as a party to litigation.
- The court to which decree is sent for execution shall require certifying to the court
which has passed decree stating the manner in which decree has been implementing
concerning the fact of such execution.

SECTION 38 - TO WHOM EXECUTION APPLICATION CAN BE MADE

○ There are 4 forums under S. 38.
○ Aon 38 of the code enacts that a decree may be executed either -
▪ By the court which has passed it
▪ By the court which it has been sent for execution.
○ Under 37 there is a quote which says where the decree has been passed.
○ The court of first instance which passed the decree
○ The court of first instance in case of appellate court

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 ○ The court of first instance in case of appellate court
○ Where the court of first instance ceases to exist. The court which would have the
jurisdiction to try the suit at the time of execution.
○ Where the court of first instance has ceased to have jurisdiction to execute the
decree, the court which at the time of execution, would have the jurisdiction to try
the suit.
○ Execution Clerk should check up while scrutinizing the application whether the
court is competent to execute the decree.

SECTION 39-45 - TRANSFER FOR EXECUTION OF DECREE TO ANOTHER

COURT
○ Read with Order 21 Rules 3-9
○ As a general rule, the court which passed the decree is primarily the court to
execute it, but such court may send the decree for execution to another court either
suomotu or on the application of the decree-holder.
○ The court may suo moto or on the application of the party on the following
grounds may transfer the decree
▪ The JD actually or voluntarily resides or carries on business or personally
works for gain within the local limits of such court.
▪ Where the JD does not sufficient property to satisfy the decree within the
local limits of the jurisdiction of the court which passed the decree but has
property within the local limits of such court.
▪ The decree directs sale or delivery of immovable property situated outside
the local limits of jurisdiction of such other courts
▪ The court which passed the decree considers it necessary for reasons to be
recorded in writing, that the decree be executed by such court.
○ The decree holder does not have a vested right to get a transfer. However 39(3)
clarifies that the transferee court should have the pecuniary jurisdiction. 39(4) says
that the transferee court should have the territorial jurisdiction as well.
○ Likewise, sub-section (4) of Section 39 further makes it clear that the court
passing decree has no power to execute such decree against a person or property
outside the local limits of its territorial jurisdiction.
○ However, Section 46 of the Code empowers the court which passed the decree to
issue precept to court which would be competent to execute the decree.
○ The order passed under Section 46 is interim in nature and can be lasted for two
months only unless the case is covered by proviso. An order of permanent
attachment under Section 46 is, therefore, illegal.

RULE 10 - WHO MAY APPLY FOR EXECUTOIN

○ There are categories identified under R10 and may apply for execution
▪ Decree holder
▪ Legal representatives
▪ Representative of the person claiming under the decree holder
▪ Any other representatives claiming under the decree holder
▪ Transferee of the decree holder

AGAINST WHOM EXECUTION CAN BE MADE

○ Execution may be taken out against the following persons:-
▪ Judgment Debtor
▪ Legal reps of JD (They shall, however, be liable to the extent of the property
of the deceased judgment-debtor which has come to their hands)
▪ Surety of the JD
▪ Rep or any other person claiming under the JD

PROCEDURE DURING EXECUTION PROCEEDINGS

○ Is covered from S. 51 to 52.
○ Under 51, application for execution can be written or oral. Party has to choose the
mode of implementation (Supra) and the court may execute the decree as per the

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 ○
mode of implementation (Supra) and the court may execute the decree as per the
choice prayed by the decree holder or as it may deem fit.
○ MODES based on which the court may order for execution of decree
○ Always happens on the behest to the decree holder. Once you have the
decree, file for execution. There are various process the same can be done
▪ By delivery of the property (The court will mandate the JD to deliver
the property)
▪ By attachment and sell of property. (If the JD is hindering the
possession, auction will be conducted and property will be sold)
▪ Arrest and detention. (Where JD is hindering)
▪ Appointing of a receiver.
○ These methods are not exhaustive. The court may pass any such order it may
seem fit in the interest of justice
○ 52 talks about executing decree against legal rep. 52(1) empowers a creditor to
execute his decree against the property of the deceased in the hands of legal reps
so long as it remains in his hand. The property should have been passed only then
the creditor can make it pay. If the Legal rep did not how will be assist the court
○ Under Section 52(2), it empowers the creditor to execute his decree against the
legal representative personally if he fails to account for the properties received by
him from the deceased.
○ EXCEPTION TO 52
○ Court can implement the decree against the personal property of the legal
representative provided if he is avoiding, neglecting or evading to make the
payment from the property of deceased.
○ Where he has mis-utilized the property of deceased and where the legal
representative has alienated the property of the deceased person.

MODES OF EXECUTION UNDER 52(2) --

○ Arrest and detention in civil prison (S. 51, 55-69, 135, 135A, and O21 Rules
37-40 of CPC)
○ Attachment and sell of movable property (O21 R43)
○ Attachment and sale of standing crop and agricultural produce (O21 R44-45)
○ Attachment of debt, share, or other movable property not in the possession of the
JD (O21 R46, 46A - Garnishee Order -- Is an order which an court would pass on
application on the JD when someone owes him money -- he will ask the court to
order that instead of JD receiving money, the money be paid directly to the decree
holder. Does not matter such a party is not a party to the suit.) [IMP]
○ Attachment Salary of government servant [O21 Rule 48]
○ Attachment Salary of private employees [O21 Rule 48A)
○ By attachment of debtor's share in a partnership firm [O21 R49 and 50]
○ Attachment of Negotiable instrument [O21 R51]
○ Attachment of decree obtained by JD in another case [O21 R53]
○ Attachment and sale of immovable property [O21 R54 to R69]

EXECUTION OF MONEY DECREE

In case of money decree, the mode of execution may differ. Decree for Specific
Movable Property
○ Money Order Credit Slip
○ Attachment & Sale
○ Arrest, Imprisonment and Release
○ Execution by another court

NOTICE OF EXECUTION [ORDER 21 RULE 22]

○ As a general rule there is no requirement of issuing notice before execution of the
decree.
○ In the following cases only, however, such notice must be issued:
○ Where an application is made two years after date of decree

CPC [DONE] Page 114

 ○ Where an application is made two years after date of decree
○ Where an application is made against the legal representative of the
judgement-debtor
○ Foreign Judgment
○ Where an application is made against the assignee or receiver of insolvent
judgement-debtor
○ Where the decree is for payment of money and the execution is sought for
arrest and detention of judgement-debtor; or
○ Where an application is made against a surety
○ Where an application is made by the transferee or assignee of the decree-
holder
○ Foreign Court. Insolvent judgement debtor, -- court will ideally issue notice of
show cause.
○ If not issues, the execution becomes null and void. However, the JD is free to
waive the notice.
○ Omission to give notice is a defect which goes to the root of the proceeding and
renders them null and void and without jurisdiction unless the judgement-debtor
waives such notice.
○ Moreover, Sub-rule (2) of Rule 22 empowers the court to dispense with such
notice, if it would cause unreasonable delay or would defeat the ends of justice.

LIMITATION
○ The period for limitation for execution apart from mandatory injunction is 12
years from the date of passing of decree.
○ For mandatory injunction it is three years.

STAY OF EXECUTION [O21 R29]

○ May be stayed if any suit is already going on between JD and the JH.
○ Where a suit by the judgement-debtor is pending in a court against the decree-
holder, such court, may, on the judgement-debtor furnishing security or otherwise
as it thinks fit, stay execution of the decree until disposal of such suit.
○ For this rule to apply, there must be two simultaneous proceedings in one and the
same court.
○ The underlying object of this provision is twofold, namely
○ To enable the judgement-debtor and the decree-holder to adjust their claims
against each other
○ To avoid multiplicity of execution proceedings.

SECTION 47 - QUESTION TO BE DECIDED BY THE EXECUTING COURT

○ Any question which needs to be taken care of is to be decided by the executing
court itself and not by a separate suit.
○ In order that this section may apply, the following conditions must be satisfied
○ The question must be one arising between the parties to the suit in which the
decree is passed.
○ It must relate to the execution, discharge or satisfaction of the decree
○ Both the above conditions must be satisfied cumulatively
○ An order under Section 47 does not amount to a decree, it is not appealable under
Section 96 and 100.
○ A revision application under Section 115 of the Code is, therefore, maintainable
provided the conditions laid down in Section 115 are satisfied.

FOREIGN JUDGMENT
○ If reciprocating -- just file directly for execution.
○ If non-reciprocating -- not automatic -- judgment has to filed before the court.

IMP
- Modes 4 modes couples with methods
- Who may apply for execution and against whom, powers of the executing court
CPC [DONE] Page 115
- Who may apply for execution and against whom, powers of the executing court
- Section 47
- Limitation

CPC [DONE] Page 116

Appeal and Review
14 May 2025 10:37 AM

APPEAL
- SECTION 96,97,98, and 99 provides for first appeal
- Second appeal under Section 100, 100A, 101, and 103.
- 104, 105, and 106 for appealable orders.
- Section 109-112 talks about appeal to SC and has to be read with Article 132, 134A,
and 136 of the Indian Constitution.
- Orders: 41, 42, 43, and 45 of CPC are applicable as the case may be.
- All the procedures and rules have been provided under these section

- Right to appeal is a statutory right. It is not an inherent right in party to prefer an appeal
unless the statute under which the right has been vested provides for it.

FIRST APPEAL
○ Section 96 [Important]
○ Against every decree, a person can appeal. But not compromise decree or decree
of small causes court where the value of suit is less than 10,000 unless there is a
question of law.
○ Who may appeal: Any person who has the interest in the suit. Or any other person
with the leave of the court by proving how is he adversely affected
○ Appeal against preliminary decree.
▪ Under Section 97, a party has to appeal against the preliminary decree at the
stage where it is passed. If they do not prefer an appeal within the period of
limitation, he shall be precluded to contesting the correctness of the
preliminary decree at a later stage.
○ Under Section 98, all decision in case of an appeal should be taken by majority of
judges (if two judge bench then both), if otherwise, the decree stands as it is and
may be referred to a bigger bench.
○ Under Section 99, if there is any procedural irregularity, on mere technical or
immaterial defect, it should not be set aside. [also misjoinder]

SECOND APPEAL
○ Generally lies to the high court from any decree passed by a subordinate court to
high court. Provided by Section 100.
○ Grounds provided under Section 100
▪ Substantial Question law u/s 100.
○ Not raised on question of fact unless the fact was not determined by the
subordinate court.
○ Only if there is a substantial question of law then only.
○ Chunni Lal Mehta v. Century Spinning Mills (1962)
▪ The court interpreted the term "substantial question of law" as one which is
of general public importance or which directly and substantially affects the
rights of the parties and has not been settled by the Supreme Court or has
different points of view which calls for a discussion on alternative grounds.
▪ {for example if there are different view of high court, conflict of judicial
opinion, taking into consideration irrelevant evidence}
○ No second apply in cases where the subject matter is for recovery of money not
exceeding 25,000 rupees.
○ Under Section 100A letter patent appeal can only be there where single judge
hears a matter in original jurisdiction.

APPEAL FROM ORDERS

○ Section 109 -- Appeal to SC from any judgment or order of the High Court on
CPC [DONE] Page 117
 ○ Section 109 -- Appeal to SC from any judgment or order of the High Court on
substantial question of law.
○ Read with Order 45.
○ To be read with Article 132, 134A, and 136 of the Indian Constitution.

REFERENCE U/S 113 RW O36

○ When a court is trying a suit or hearing, and it has some confusion about a
question of law, it can refer it to the high court for their opinion
○ Object is to have an opinion of high court especially is cases where there lies no
appeal. Example if the trial court is confused about the validity a statute, it can
refer.
○ Can only be made by a court and not an individual. It is always made to the HC of
the concerned state where the disputed question arises.
○ It can only be a question of law.
○ Provided that where the Court is satisfied that a case pending before it involves a
question as to the validity of any Act, Ordinance or Regulation or of any provision
contained in an Act, Ordinance or Regulation, the determination of which is
necessary for the disposal of the case, and is of opinion that such Act, Ordinance,
Regulation or provision is invalid or inoperative, but has not been so declared by
the High Court to which that Court is subordinate or by the Supreme Court, the
Court shall state a case setting out its opinion and the reasons therefor, and refer
the same for the opinion of the High Court

REVIEW
○ Means reexamining of the same matter by the same court or the same set of
judges.
○ It is an exception and can be exercised where the court feels there has been an
omission or grave injustice to the party.
○ Circumstances in which review can be done
▪ Where no appeal lies.
▪ Where appeal lies but has not been preferred.
▪ From a judgment on reference from small causes court.
○ Grounds for review
▪ Discovery of new facts which was not in the knowledge earlier.
▪ Mistake or error apparent on the face of record.
▪ Any other sufficient cause

REVISION
○ Every HC even under the constitutional scheme, has to power of supervision over
lower courts.
○ As per S. 115 of CPC, the HC has certain powers to provide for revision
▪ The HC may call for records of a case decided by the subordinate court in
which case no appeal lies if
□ It has exercised a jurisdiction which is not vested in it. [Most basic
ground for revision]
□ If it fails to exercise the jurisdiction. [If plaintiff applies for issue of
summons to defendant and the court rejects]
□ Acted in exercise of jurisdiction illegally or with material irregularity
○ Revision applies in cases where appeal does not lie.
○ HC can reverse order of any court.
○ However it does not lead to stay of suit.
○ Object of revision is to see that the lower courts do not act irregularly.

DISTINCTION
Appeal Review Revisi
on
Institution where it is Higher Court Same Court High

CPC [DONE] Page 118

Institution where it is Higher Court Same Court High
filed Court
Purpose Set aside the decree of a To correct any judicial Jurisdi
lower court errors or omissions ctional
issues
Scope Broader -- court may look Narrow -- only check if it Much
to question of law or fact, committed any mistake, limited
provided it relates to law, or error or omission -- will
has broader repercussions only
on outcome of the case. look at
jurisdic
tional
factors.
Applicability Civil and Criminal Primarily in civil and it has Both
very limited exercise in civil
case of criminal matters and
crimin
al
Applicable provision Section 96-105 114 115

Provisions
Grounds Appeal
Review provision 114
When review can be preferred
Courts power in term of review
Revision - 115 and it grounds and its outcome (reverse, or vary)
Distinctions

CPC [DONE] Page 119

Special Suits
25 May 2025 03:24 AM

SPECIAL SUITS
- By and against government
- By and against minor or unsound mind
- By and against indigent person
- For all these special procedures has been specified

BY AND AGAINST GOVERNMENT [Imp for short]

○ Covered under Section 79 to 82. Read with order 27 of CPC. Very technical.
○ These are general principles and does not create any right in the parties
○ Section 79
▪ If you have to file a suit against the CG then the party has to be union of
India
▪ In case of a state, then the party has to be the state government
▪ Chief conservator of Forest v. Collector
▪ The SC held that Section 79 is not merely a procedural formality but is
essentially a matter of substance and of considerable significance
whereby special provision has been laid down indicating how central
or state government may sue or be sued.
○ Section 80 {imp}
▪ Talks about requirement of notice.
▪ There exists no onus for institute a suit without giving notice of 2 months to
the government.
▪ It should be made sure that such a notice was delivered or left at the office of
▪ Whenever the case is against the central government, and it does not
relate to the railways then, the notice should be delivered to the
secretary of the government.
▪ Whenever a case has been instituted against the central government
and it relates to the railways then, the notice is to be served to the
general manager of that railways.
▪ Whenever the case is instituted against any of the state governments
then, the notice is to be served either to the secretary to that
government or to the collector of the district.
▪ A suit can be instituted without service notice provided that you are able to
prove that there exists valid ground for an immediate relief.
▪ There are two kinds of suit
▪ Suit against government
▪ Suit against public officers
 Only contemplated where he is working in his official capacity
(notice compulsory)
 Not attracted in private dealing (notice not compulsory)
▪ Requirements
▪ The addressee should be identified and must receive the
communication
▪ There should be no vagueness about the person giving the notice
▪ Two months' time must expire before the suit is laid before the court.
▪ Once these requirements are fulfilled minor details like the misdescription of
the person to whom the communication is addressed should not make it an
improper notice which does not comply with the requirements of S. 80,
C.P.C
▪ All conditions are cumulative and mandatory. If not fulfilled rejected under
Order 7 Rule 11.

CONTENTS OF NOTICE
CPC [DONE] Page 120
 CONTENTS OF NOTICE
▪ Notice should contain
▪ name, discerption and place of residence of the person giving the
notice
▪ A statement of the cause of action
▪ Relief claimed.
▪ In considering whether the essential requirements of the section have been
complied with, the Court should ask the following questions:
▪ Whether the name, description, and residence of the plaintiff are given
so as to enable the authorities to identify the person giving the notice?
▪ Whether the cause of action and the relief which the plaintiff claims
have been set out with sufficient particulars?
▪ Whether such notice in writing has been delivered to or left at the
office of the appropriate authority mentioned in the section? ; and
▪ Whether the suit has been instituted after the expiration of two months
after notice has been served, and the plaint contains a statement that
such a notice has been so delivered or left?
▪ An order under Section 80 can only be subject to revision and not an appeal.
▪ Section 80(3) provides that no suit instituted against the Govt. or Public
officer shall be dismissed merely on ground of technical error or defect in
the notice. It should substantially fulfil the contents of the notice so as to
enable the government to respond.
▪ The amendment to the code was made with the intention that justice is not
denied to the aggravated parties on the grounds of technical defects.
Therefore, a notice under section 80 cannot be held to be invalid and no suit
can be dismissed on the grounds that there has been a certain technical
defect or error in the notice delivered or on the ground that such notice was
served in an improper way.

WRIT PETITIONS - S.80 ?

▪ Is Section 80 applicable in case of WP - the term 'suit' has been used in the
provision, thus, notice is required in case of a WP under 226 or 32.
▪ Section 80(2) - immediate relief
▪ Section 80(3) -- Defect of notice

OBJECT OF S. 80
▪ Bihari Chowdhary v. State of Bihar
▪ Supreme Court has Highlighted the object of Section (80)of the civil
procedure code.
▪ Section has been enacted as a measure of public policy with the object
of ensuring that before a suit is instituted against the Government or a
public officer, the Government or the officer concerned is afforded an
opportunity to scrutinize the claim in respect of which the suit is
proposed to be filed and if it be found to be a just claim, to take
immediate action and thereby avoid unnecessary litigation and save
public time and money by settling the claim without driving the
person, who has issued the notice, to institute the suit involving
considerable expenditure and delay
▪ The Government, unlike private parties, is expected to consider the
matter covered by the notice in a most objective manner, after
obtaining such legal advice as they may think fit, and take a decision in
public interest within the period of two months allowed by the Section
as to whether the claim is just and reasonable and the contemplated
suit should, therefore, be avoided by speedy negotiations and
settlement or whether the claim should be resisted by fighting out the
suit if and when it is instituted
▪ There is clearly a public purpose underlying the mandatory provision
contained in the Section insisting on the issuance of a notice setting out

CPC [DONE] Page 121

 contained in the Section insisting on the issuance of a notice setting out
the particulars of the proposed suit and giving two months‟ time to
Government or a public officer before a suit can be instituted against
them. The object of the Section is the advancement of justice and the
securing of public good by avoidance of unnecessary litigation.
▪ A notice given before the cause of action has arisen is invalid. Issuance of a
notice is a condition precedent for the institution of a suit but it does not
become a part of the cause of action.
▪ Whether or not a notice forms an integral part of the cause of action against
the govt. depends upon the scheme of the relevant statue and no rule of
universal application can be laid down .
▪ If the notice on such a reading the court is satisfied that the information
which was necessarily to be provided to the defendants by the plaintiff was
in fact provided, inconsequential defects or error is immaterial and will not
vitiate the notice.
▪ The provisions of the section are not intended to be use as booby-traps
against ignorant and illiterate persons.
▪ A plaintiff who gives notice under Section 80 and institutes a suit before two
month, but is allowed to withdraw the same with liberty to file a fresh suit, is
entitled to institute a fresh suit without a fresh notice

WAIVER OF NOITCE
○ Dhina Singh v. Union of India
▪ The issue of waiver of notice was raised. Held that the notice is for the
benefit of the government, therefore, it is the prerogative of the government
to choose to waive the right in such cases.
URGENCY - S. 80(2)
○ Section 80(2) is in the nature of an exception to Section 80(1) and enables the
plaintiff to file a suit to obtain an urgent and immediate relief without serving any
notice as required by Subsection (1) subject to the condition that such a suit has to
be filed with leave of the Court.
○ Even in such cases where leave is granted, the Court is enjoined not to grant relief
in the suit, whether interim or otherwise, without giving the State reasonable
opportunity of showing cause in respect of the relief sought for in the suit.

FORM & MODE OF SERVICE OF NOTICE

FORM OF NOITCE
○ No particular has been prescribed under the code. Due to the above, there is no
need to give it in any particular form to give a notice under Section 80.
○ The mere satisfaction of all conditions prescribed in this section is sufficient.
Also, in the Amar Nath v. Union of India, it was held that the notice must merely
inform the opposite party about the nature and the basis of the claim and relief
sought.

MODE OF SERVICE
○ A notice submitted under section 80 of the civil procedure code must be given to,
or left at the office of, the appropriate authority specified.
○ IT has been specified in the code as to who the appropriate authority is under
section 80
○ Under this section, personal delivery of the notice is not necessary, thus making
the words “left at the office” redundant.
○ The section, however, does not prohibit the personal delivery of the notice. It
further allows the notice to be sent through registered post.

Gopal Singh v. Swaran Singh

○ The plaintiffs filed the suit against State authorities , who were public
functionaries under the Punjab Package Deal Properties (Disposal) Act, 1976.

CPC [DONE] Page 122

 ○
functionaries under the Punjab Package Deal Properties (Disposal) Act, 1976.
○ However, the plaintiffs failed to serve the mandatory notice under Section 80(1)
before instituting the suit. They also did not seek the court’s permission to
dispense with the notice under Section 80(2).
○ The First Appellate Court held that the suit is liable to be dismissed because no
notice, as required under Section 80 CPC, was given, and no application was filed
to dispense with that requirement under Section 80(2).
○ The requirement under Section 80 CPC was mandatory.

Jehangir v. Secretary of State

○ Section 79 of the CPC does not provide for a cause of action but simply describes
the process to be used when the cause of action arises.

R.C. Jall v. Union of India

○ The petitioner, R.C. Jall, had filed a suit against the Union of India, claiming that
the land was wrongfully retained by the Railway Administration, which had no
lawful authority to continue occupying it after the expiry of the Defence of India
Act.
○ The Union of India argued that the property was now in possession of the Railway
Administration, and the suit should have been brought against the Railway
Administration, not the Union of India.
○ The Court held that the Railway Administration is not a separate legal entity — it
is a part of the Government of India (i.e., the Union of India). Therefore, a suit for
recovery of possession or damages can be brought against the Union of India,
even if the property is under the control of the Railways.
○ Thus, the Court rejected the technical defense raised by the Union of India.

Dominion of India v. R.C.K.C. Nath

○ The Railway Administration, acting through its servants or agents, had wrongfully
damaged the plaintiff’s property.
○ The plaintiff sued the Dominion of India (the central government at that time),
alleging wrongful acts by railway officials that caused harm or loss and claimed
damages.
○ The Calcutta High Court held that Dominion of India was liable for torts
committed by its servants — including those working in the Railway
Administration, if the functions were non-sovereign in nature.
○ Running a railway was considered a commercial function, not a sovereign
function.
○ Therefore, the government could be sued for acts of negligence or misfeasance by
railway employees.
○ The Court clarified that Railways do not have a separate legal personality and
function as a department of the central government.

__________________________________________________________________

BY AND AGAINST MINOR & UNSOUND MIND [ORDER 32]

○ The term “minor” has been defined under Section 3 of Indian Majority Act, 1875.
○ Age of majority of persons domiciled in India.-
▪ Every person domiciled in India shall attain the age of majority on his
completing the age of eighteen years and not before.
○ In computing the age of any person, the day on which he was born is to be
included as a whole day and he shall be deemed to have attained majority at the
beginning of the eighteenth anniversary of that day.
○ Order XXXII of the Code lays down rules regarding suits by or against minors

CPC [DONE] Page 123

RULE 1
○ Every suit by a minor shall be Instituted in his name by a person who in such suit
shall be called the next friend of the minor.

RULE 2
○ Where a suit is instituted by or behalf or on behalf of a minor without a next
friend, the defendant may apply to have the plaint taken off the file, with costs to
be paid by the pleader or other person by whom it was presented.
○ Notice of such application shall be given to such person, and the Court, after
hearing his objections (if any) may make such order in the matter as it thinks fit.

RULE 3
○ Where the defendant is a minor the Court, on being satisfied of the fact of his
minority, shall appoint a person to be guardian for the suit for such minor.
○ An order for the appointment of a guardian for the suit may be obtained upon
application in the name and on behalf of the minor or by the plaintiff.
○ Such application shall be supported by an affidavit verifying the fact that the
proposed guardian has no interest in the matters in controversy in the suit adverse
to that of the minor and that he is a fit person to be so appointed.
○ Before the court can make any order on such an application, notice must be given
to certain people responsible for the minor. The rule lists a hierarchy of persons
who must be notified, depending on who is available:
▪ First: To any guardian of the minor who has been appointed or declared by a
competent authority (like a court or government official).
▪ If no such guardian exists: Notice must be given to the father of the minor.
▪ If there is no father or mother: Notice must be given to some other natural
guardian (like an elder sibling or relative who takes care of the minor).
▪ If there is no father, mother, or other natural guardian: Notice must be given
to the person in whose care the minor is (for example, a caretaker or
someone looking after the minor).
○ After notice is given to any of the above persons, the court must hear any
objections that they may raise.
○ The Court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the
minor also.
○ A person appointed under sub-rule (1) to be guardian for the suit for a minor shall,
unless his appointment is terminated by retirement, removal or death, continue as
such throughout all proceedings arising out of the suit including proceedings in
any Appellate or Revisional Court and any proceedings in the execution of a
decree.

RULE 3A
○ No decree passed against a minor shall be set aside on the ground that the next
friend or the guardian had an interest in the subject matter of the suit which was
adverse to the minor’s interest.
○ However, where the minor is prejudiced due to the acts of the guardian or next
best friend in such situation, the same may be a ground for setting the decree
aside.
○ The minor may even obtain relief for any loss caused to him by the misconduct or
gross negligence on part of the guardian where the suit results in prejudicing the
interests of the minor.

RULE 4
○ States that the following rules for a person to act as guardian or next friend for a
minor-
▪ Any person who is of sound mind and has attained majority.
▪ Provided such person does not have any interest adverse to that of the minor
as regards the subject matter of the suit

CPC [DONE] Page 124

 as regards the subject matter of the suit
▪ Provided that where he is the next friend, he is not the defendant in the suit
and where he is the guardian, he is not the plaintiff in the suit.
▪ Where any person is appointed by a competent authority as such next friend
or guardian, no other person shall act as the minor’s next friend or guardian
except where the court is of the opinion that this is required for the welfare
of the minor
▪ No person shall be appointed a next friend or guardian unless he consents to
the same in writing
▪ Where there is no person is fit and willing to act as the guardian or next
friend, the court may appoint any of its officers to act in this regard.
▪ Any costs incurred by such officer shall be payable by either of the parties or
from a fund of the court in which the minor is interested or from the estate of
the minor

RULE 5
○ Rule 5 provides that an application may be made on behalf of a minor (except
where the application is made to appoint a new guardian/next friend where the
pleader fails to do so) only by his next friend or guardian.
○ Every order made in a suit or on any application which affects the minor in any
way and the minor is not represented by the pleader or next friend, the order shall
be discharged.
○ Further, where the pleader of the other party was aware of such minority, he shall
have to pay costs in such case.

RULE 6
○ A next friend or guardian cannot receive any money or movable property on
behalf of the minor where there is a compromise to that effect or a decree passed
to that effect, except with the leave of the court.
○ Where the court grants leave as mentioned above but where the next friend or
guardian has not declared to be the guardian of the property of the minor by the
competent authority or where he has been so declared but he is under any
disability known to the court, the court may order him to pay security for the
money or movable property received by him.
○ Such security is taken to ensure that the property is protected from waste and there
is proper application of the same
○ The court may however dispense with the requirement of granting security where
the next friend or guardian is
▪ (a) the manager of a HUF and the decree or order relates to the business or
property of the family or where
▪ (b) he is the parent of the minor

RULE 7
○ Rule 7 provides that no compromise or agreement may be entered into on behalf
of the minor by the guardian or next friend without the leave of the court which
must be recorded in its proceedings.
○ An application for leave must be accompanied by an affidavit by the guardian or
next friend and where the minor is represented by a pleader, a certificate must be
given by the pleader stating that the compromise or agreement is for the benefit of
the minor.
○ However, the court may still examine as to whether or not such compromise or
agreement is for the benefit of the minor.
○ Where the leave of the court is not taken, the agreement or compromise shall be
voidable at the option of the minor.
○ Thus, rules 6 and 7 have been enacted to ensure that the interests of the minor are
safeguarded by the court. It is to ensure that the guardian and next friend act in a
bonafide manner

CPC [DONE] Page 125

RULE 8 - RETIREMENT, REMOVAL OR DEATH OF NEXT FRIEND
○ A next friend cannot retire without procuring the appointment of another next
friend. Security for costs incurred for the same must be paid as well. (Rule 8)
○ The application for appointment of the next friend should be accompanied by an
affidavit stating that the new person being appointed is indeed fit to be appointed
and that he has no interest that is adverse to that of the minor.

RULE 9 - GROUNDS FOR REMOVAL OF NF

○ Where his interest is adverse to that of the minor
○ Where he is so connected to the defendant that he shall not be in a position to
protect the interests of the minor
○ Where he fails to do his duty
○ Where he ceases to reside in India at any point of time during the pendency suit
○ Where there is any other sufficient cause for removal
○ Where the guardian does not do his duty or for other sufficient cause, the court
may remove him. (Rule 11) The provisions of Rule 10 shall not be applicable in
this case as the vacancy shall be filled in by the court
○ In such case, an application may be made to the court by the minor or any
defendant(s). Where the court is satisfied that there is sufficient cause for removal
of the next friend, it may do so and award the necessary costs.
○ Further, where there is a guardian of the minor as appointed or declared by a
competent authority, who has not been appointed as the guardian or next friend of
the minor, he may apply to the court for removal of the guardian or next friend.
○ The court shall ordinarily allow the same except where for reasons to be recorded,
it is of a different opinion.
○ Till the time a new next friend or guardian is not appointed, the proceedings shall
be stayed.
○ (Rule 10) Such vacancy may be created by death, removal or resignation of the
next friend or guardian. Where the pleader of the minor omits to appoint such next
friend or guardian, any person interested in the minor or subject matter may apply
to the court for such new appointment.
○ Rule 11 also states that where a next friend or guardian is to retire, the court may
permit him to do so.

WHEN MINOR ATTAINS MAJORITY

○ Where the minor attains majority and he is a plaintiff in a suit or where there is an
application pending on his behalf, he may either elect to proceed with the suit or
abandon it.(Rule 12)
○ Where he decides to proceed with the suit, he shall proceed with the same in his
own name and have the next friend discharged.
○ Where he decides to abandon the suit, he shall apply to the court to dismiss the
suit or application on payment of costs.
○ However, notice of such dismissal must be given to the next friend
○ Further, suits in such cases may even be dismissed ex parte
MINOR ONE OF THE PLAINTIFFS
○ Rule 13 deals with the situation where the minor is one of the co-plaintiffs. In
such a case, where the minor seeks to abandon the suit and the court is of the
opinion that he is not a necessary party, it shall strike his name off as the plaintiff
on payment of certain costs.
○ Notice of the same must be given to the next friend, the other co-plaintiffs and the
defendant.
○ Where the minor is a necessary party, the court may direct that he be made the
defendant.
○ Rule 14 provides that when a minor attains majority, he may even apply to the
court to dismiss the suit stating that it is unreasonable and improper.
○ Where the court is of the opinion that the suit is indeed unreasonable and
improper, it shall direct that the suit be dismissed and costs for the same be paid

CPC [DONE] Page 126

 ○
improper, it shall direct that the suit be dismissed and costs for the same be paid
by the next friend

UNSOUND MIND
○ Rule 15, Order XXXII states that Rules 1-14 except rule 2-A apply to persons of
who, though not so adjudged, are found by the Court on enquiry to be
incapable, by reason of any mental infirmity, of protecting their interest when
suing or being sued.

__________________________________________________________________

BY AND AGAINST INDIGENT PERSONS [ORDER 33]

WHO IS AN INDIGENT PERSON

○ Order XXXIII deals with suits by Indigent Person

RULE 1 : WHO IS AN INDIGENT PERSON

○ A person is an indigent person,-
▪ if he is not possessed of sufficient means (other than property exempt from
attachment in execution of a decree and the subject-matter of the suit) to
enable him to pay the fee prescribed by law for the plaint in such suit, or
▪ where no such fee is prescribed, if he is not entitled to property worth one
thousand rupees other than the property exempt from attachment in
execution of a decree, and the subject-matter of the suit.

Union Bank of India v. Khader Construction

▪ Order 33 CPC is an enabling provision which allows filing of a suit by an
indigent person without paying the court fee at the initial stage.
▪ If the plaintiff ultimately succeeds in the suit, the court would calculate the
amount of court fee which would have been paid by the plaintiff if he had
not been permitted to sue as an indigent person and that amount would be
recoverable by the State from any party ordered by the decree to pay the
same
▪ It is further provided that when the suit is dismissed, then also the State
would take steps to recover the court fee payable by the plaintiff and this
court fee shall be a first charge on the subject- matter of the suit.
▪ So there is only a provision for the deferred payment of the court fees and
this benevolent provision is intended to help the poor litigants who are
unable to pay the requisite court fee to file a suit because of their poverty

R.V. Dev v. Chief Secretary, Govt. of Kerala

▪ A person who is permitted to sue as an indigent person is liable to pay the
court fee which would have been paid by him if he was not permitted to sue
in that capacity, if he fails in the suit at the trial or even without trial.
▪ Payment of court fee as the scheme suggests is merely deferred. It is not
altogether wiped off

A.A. Hajamuniuddin v. Indian Railways

▪ Access to justice cannot be denied to an individual merely because he does
not have the means to pay the prescribed fees.

WHAT CONSTITUTES INDIGENCY

○ The right to sue in forma pauperis is restricted to indigent persons.
○ A person may proceed as poor person only after a court is satisfied that he or she
is unable to prosecute the suit and pay the costs and expenses
○ A person is indigent if the payment of fees would deprive one of basic living

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 ○ A person is indigent if the payment of fees would deprive one of basic living
expenses, or if the person is in a state of impoverishment that substantially and
effectively impairs or prevents the pursuit of a court remedy.
○ Factors considered when determining if a litigant is indigent are similar to those
considered in criminal cases, and include
▪ the party's employment status and income, including income from
government sources such as Social Security and unemployment
benefits,
▪ the ownership of unencumbered assets, including real or personal property
and money on deposit,
▪ the party's total indebtedness, and any financial assistance received from
family or close friends.
○ Not only personal liquid assets, but also alternative sources of money should be
considered.
○ The burden of establishing indigency is on the defendant claiming indigent status,
who must demonstrate not that he or she is entirely destitute and without funds,
but that payments for counsel would place an undue hardship on his or her ability
to provide the basic necessities of life for himself or herself and his or her family.

RULE 1A
○ Every inquiry into the question whether or not a person is an indigent person shall
be made, in the first instance, by the chief ministerial officer of the Court.
○ Unless the Court otherwise directs, and the Court may adopt the report of such
officer as its own finding or may itself make an inquiry into the question.

RULE 2 : CONTENT OF THE APPLICATION

○ Every application should contain following particulars required in regrad to the
plaint in the suit:
▪ a schedule of any movable or immovable property belonging to the
applicant, with the estimated value thereof, shall be annexed thereto; and
▪ it shall be signed and verified in the manner prescribed for the signing and
verification of pleadings

RULE 3 : PRESENTATION OF APPLICATION

○ Notwithstanding anything contained in these rules, the application shall be
presented to the Court by the applicant in person, unless he is exempted from
appearing in Court, in which case the application may be presented by an
authorized agent who can answer all material questions relating to the application,
and who may be examined in the same manner as the party represented by him
might have been examined had such party attended in person.
○ Provided that, where there are more plaintiffs than one, it shall be sufficient if the
application is presented by one of the plaintiffs.

RULE 4
○ Where the application is in a proper form and has been duly presented, the court
may examine the applicant where he appears in person or his agent as regards the
merits of the claim and the property of the applicant
○ The court may even issue commissions for examination of the applicant where he
is exempted from appearance and the application is presented by the agent.

RULE 5 : REJECTION OF PLAINT [IMP]

○ The Court shall reject an application for permission to sue as an indigent person -
▪ where it is not framed and presented in the manner prescribed by rules 2 and
3,
▪ where the applicant is not an indigent person
▪ where he has, within two months next before the presentation of the
application disposed of any property fraudulently or in order to be able to
apply for permission to sue as an indigent person

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 apply for permission to sue as an indigent person
▪ where his allegations do not show a cause of action
▪ where he has entered into any agreement with reference to the subject-matter
of the proposed suit under which any other person has obtained an interest in
such subject-matter
▪ where the allegations made by the applicant in the application show that the
suit would be barred by any law for the time being in force, or
▪ where any other person has entered into an agreement with him to finance
the litigation
○ Provided that no application shall be rejected if, even after the value of the
property disposed of by the applicant is taken into account, the applicant would be
entitled to sue as an indigent person.

RULE 6
○ Thereafter, the court shall fix a day where the applicant shall be allowed to put
forth evidence showing that he is an indigent person.
○ At least 10 days' notice must be given to the government pleader and the opposite
party in such cases so that they may try to disprove the applicant’s claim of being
an indigent person.

RULE 7
○ At the hearing, the court shall examine the parties as well as their witnesses.
○ The witnesses will only be required to be examined as regards whether or not the
applicant is an indigent person and whether or not the applicant has disposed off
any property fraudulently or to be adjudged an indigent person within 2 months
before the application.
○ The parties shall be examined as regards all matters specified under Rule 5
(grounds for rejection).
○ The parties may also put forth any argument as regards the application or the
evidence adduced
○ Thereafter, the court shall decide whether to allow or disallow the applicant to sue
as an indigent person

RULE 8
○ Where the application is allowed, the application shall be treated as the plaint in
the suit and ordinary proceedings as in a suit shall commence. However, the
applicant will not be required to pay the court fees or any other fees as regards
service of any process, appointment of a pleader, etc. (Rule 8)

RULE 9 : WITHDRAWL OF APPLICATION

○ Under Rule 9, such permission granted may be withdrawn on an application of the
defendant or the government pleader.
○ A clear notice in writing of such withdrawal must be given to the applicant.
○ The application may be withdrawn where-
▪ It is shown that the applicant’s conduct was vexatious or improper.
▪ It is shown that the applicant has the required means and is not an indigent
person.
▪ It is shown that the applicant entered into an agreement with a third person
as regards the subject matter of the suit and thus the third person has
acquired a right as regards the property.

Where the plaintiff succeeds in the suit, the court fees that would have been paid by him
had
he not been adjudged an indigent person shall be paid by such person as the decree may
order to the State Government.

RULE 11 : PAYMENT OF COSTS

○ Where the plaintiff

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 ○ Where the plaintiff
▪ Fails in the suit
▪ the permission granted to him to sue as an indigent person is withdrawn or
▪ where the suit is withdrawn or dismissed because the summons on the
defendant is not served properly due to the failure of the plaintiff to pay
court fees or postal charges or because the plaintiff does not appear at the
time of hearing
the court shall order the plaintiff or his co-plaintiff to pay the court fees which he
would have had to pay had he not been an indigent person.

RULE 11A
○ Where the plaintiff or his co-plaintiff, suing as indigent persons die, the State
Government may recover the court fees from the estate of the deceased

RULE 14
○ In both the abovementioned cases (Rules 11 and 11-A), the amount shall be
recoverable by the Collector when a copy of the order is forwarded to him.

RULE 15
○ Where the application of a person to sue as an indigent person has been refused,
he shall not be allowed to sue in such capacity at a later stage
○ However, he may institute an ordinary suit provided he pays the costs incurred by
the defendant and the State Government in opposing his application.
○ Such payment must be made either at the time of institution of the suit or at any
other time as may have been specified. The court shall be at the discretion to
extend such time period from time to time
○ Further, the suit will be deemed to have been instituted on the day the application
to sue as an indigent person was filed

RULE 17
○ A defendant setting up a counter claim or set-off may even do so in the capacity of
an indigent person. In such case all the provisions applicable to the plaintiff suing
as an indigent person will become applicable to him.

RULE 18 [IMP]
○ Empowers the Central or State governments to make provisions for providing free
legal services to indigent persons.
○ The High Court may implement the same with the leave of the State government.
○ These provisions may state the nature and extent of legal aid, the matters to which
they shall relate, the agencies which shall provide for legal aid, etc.

In Khader International Constructions case (2011), it was held that the term “person”
includes jurisitic person as well.

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