UNIT 1, 2

Difference between Civil Law and Criminal law

Parameters Civil Law Criminal Law
Meaning Civil law deals with acts related to Criminal law deals with a crime
individuals to which harm caused can that causes damage to a person
be repaid by compensation or which is an offense against society
monetary relief. as well. The relief of crime
committed is to charge the person
with Imprisonment.
Liability It creates a private liability against an It creates a liability for the
individual or an organization. preparator against society and the
victim.
Punishment Justice is given by providing Justice is given by providing the
monetary relief against the damages in accused imprisonment for a term
most cases. or fine or both.
Triable Cases under Civil law are triable Cases under Criminal law are tried
under Civil Court or equivalent under Criminal Court or Sessions
tribunals. Court.
Objective Objective of Civil law is dispute Objective of Criminal law is
resolution between individuals. providing justice to the victim by
punishing the accused.
Procedural Law Code of Civil Procedure, 1908 Code of Criminal Procedure, 1973

Gravity of offenses Less grave than Criminal More grave than Civil

Filing of the case In Civil Cases the aggrieved party In Criminal Cases, the government
files the case files on behalf of the victim
Registration Normally in Civil Cases, the case can In Criminal Cases, the case needs
be directly filed to the Court. to be registered in the police office
before the court directly
Infringement Infringement of private rights Infringement of public rights

Branches Corporate law, Family law, Property No diversion as such

law, Media law, Sports law etc.

Examples of Acts Negligence, Invasion of privacy, Murder, Rape, Kidnapping, theft

Trespass etc. etc.
Differences between substantive laws and procedural laws
Topic Substantive laws Procedural laws
Subject matter Substantive laws deal with the legal Procedural laws describe the
rights and obligations of the individuals ways and methods following
among themselves and towards the state. which substantive law is
enforced.
Objective These laws control and govern the rule of Procedural laws exclusively deal
law as a whole. with the proceedings in the court
and the methods to start a legal
case.
Context of Substantive laws are applied only in legal Procedural laws are applied in
application. contexts. both legal and non-legal contexts
including proceedings of
litigation.
Regulation Substantive laws are regulated by the Procedural laws are regulated by
Acts of Parliament or governmental statutory laws only.
implementations.
Capacity Substantive laws have individual Procedural laws only can dictate
capacities to decide the course of any the paths any legal proceeding
legal proceedings. should follow.

Significance of Procedural laws- In contrast to substantive laws, procedural laws, also known
as Adjective Laws,. These are the laws which act as the ‘machinery’ for enforcing rights and
duties. Procedural laws comprise the rules by which a court hears and determines what happens
in civil, criminal or administrative proceedings, as well as the methods by which substantive
laws are made and administered. The rules are designed to ensure a fair and consistent
application of due process and fundamental justice to all cases before any particular court.
The validity of the substantive laws is tried and tested through the procedures of the procedural
law. In the context of procedural laws, the rights may not exhaustively refer to the rights to
information, rights to justice, rights to participate and general civil and political rights. For
example, in the sphere of environmental law, these procedural rights have been considered in the
UNECE Convention On Access To Information, Public Participation In Decision-Making And
Access To Justice In Environmental Matters, also known as the Aarhus Convention.
Procedural laws are made to ensure the best distribution of judicial resources. All procedural
laws are made following the due process of the law. A court cannot impose a civil or criminal
penalty on any individual who has not received any notice of the case filed against him/ her or
has not got a fair opportunity to present evidence or defend himself/ herself. The standardization
of the procedural laws depends on how any case is filed, parties are informed, evidence is
presented and the facts are determined to maximize the fairness of any legal proceeding.
History of Code of Civil Procedure (CPC)- The Code of Civil Procedure, which in common
practice is used in its abbreviated form i.e., C.P.C, is a pre-independence enactment.
● The Act was first enacted in the year 1859 as Act No.8 of 1859.
● The Code was thereafter amended several times in the years 1860, 1861, 1878, 1879, and
1882.
● After facing these many amendments, finally, the Code of Civil Procedure was re-enacted
in the year 1908, and it came into force with effect from 1 January 1909.
● It further underwent a revamp by virtue of a major amendment in the year 1976.
The CPC not only defines and amends but also consolidates the law of the civil procedure. The
main aim of the CPC is to facilitate justice, it has been rightly observed that procedural law is
always subservient to and is in aid of Justice. The Code of Civil Procedure is a complete code in
itself consisting of Sections 1 to 158 in the first part and Orders I to LI with Appendices to the
first schedule and Forms in the second part.

What is the Civil Procedure Code? The Code of Civil Procedure is a procedural law and deals
with the administration of civil proceedings in India. Once the proceedings are initiated under it,
rights and remedies of the parties will be governed by the Code. As it is a settled proposition of
law, if the law prescribes a procedure for anything to be done then it is to be done in the manner
prescribed only.
Inter-alia, the object and purpose of the major Amendment of 1976 was:
● Litigant should get a fair trial and in accordance with the principles of natural justice;
● Not to delay proceedings and to expedite the disposal of civil suits;
● Simplification of the procedure, and ensure a fair deal to poorer sections who cannot
engage counsels for defending cases.
Another major amendment to the Code was made in the year 2002, which was made with a view
to making the trial speedy. The few salient features of the 2002 amendment are:-
● Time to file a written statement is restricted to 90 days. Earlier no time frame was fixed.
● Restriction on the number of adjournments.

What is the aim of the Code of Civil Procedure? The Civil Procedure Code regulates every
action in civil courts and the parties before it till the execution of the degree and order. The Aim
of the Procedural law is to implement the principles of Substantive law.

CASE LAWS:-
● Sangram Singh v Election Tribunal Kota AIR 1955 SC 425
Section- O.9 Rule 6
Facts- The defendant and his counsel both fail to appear before the Election Tribunal, as a
consequence of which the Judge permits ex parte proceedings. The defendant and his counsel
appeared on fourth hearing and insisted that not only the order to proceed ex parte be reversed
but the defendant should also be permitted to cross-examine witnesses of the plaintiff who were
examined in his absence.
Issue- Whether ex parte proceedings means total debarring of the defendant to appear before the
court on any subsequent date or it merely means that the defendant may appear on a future date,
however, without any right to undo what prejudice has been caused to his interest in the ex parte
proceedings ?
Observation- The SC observed as:-
1. Ex parte proceedings do not mean that the defendant cannot be allowed to appear at all in
the subsequent proceedings of the Suit.
2. If a party does not appear on “the day to which the hearing of the suit is adjourned”, he
cannot be stopped from participating in the proceedings simply because he did not appear
on the first or some other hearing.
3. An omission to appear in response to summons carries no penalty in the strict sense.
4. No form or procedure should ever be permitted to exclude the presentation of a litigant’s
defense.
5. The proceedings that affect their lives and properly should not continue in their absence
and that they should not be precluded from participating in them.
Decision- The SC held that though the appellant cannot be relegated to the same position as he
has failed to show good cause, he cannot be denied his right to contest and be present on
subsequent dates.

● Vareed Jacob v SosammaGreevarghese, (2004) 6 SCC 378

UNIT 3
Decree- The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908. A decree
always follows judgment and is based upon a judgment. It is divided into five types unlike
judgment which is final in itself. A decree may be final or preliminary. It is a formal declaration
or adjudication and is conclusive in nature. A decree is of three kinds namely, preliminary
decree, final decree and partly preliminary & partly final. A decree may be delivered with an
order. The decree contains the outcome of the suit and conclusively determines the rights of the
parties with regard to the issues in dispute in the suit. After passing the decree, the suit stands
disposed of since the rights of the parties are finally determined by the court.

Judgment- The term Judgment is defined in Section 2(9) of the Code of Civil Procedure, 1908.
A judgment contains facts of the case, the issues involved, the evidence brought by the parties,
finding on issues (based on evidence and arguments). Every judgment shall include a summary
of the pleadings, issues, finding on each issue, ratio decidendi and the relief granted by the court.
On a daily basis, numerous judgements are pronounced and various cases are disposed of.
Judgements play a very important role in the working of our judicial system because they act as
precedents for cases to come in the near future. A judge in the judgment always states the
reasons for such a decision.

Order- An order is defined under Section 2(14) of the CPC as the formal expression of any
decision of a civil court which is not a decree. As the definition clearly explains, an order is not a
decree. However, though an order is not a decree, a decree is usually an order. It is because a
decree may be preliminary, final, or partially both, but an order is always final in nature.
Nevertheless, it is pertinent to note that here, “final” refers to an order’s conclusive ability to
execute; it means that an order must be essentially and procedurally executed. An order
determines the procedural rights of the parties. The court may pass orders at any stage of a civil
suit. Essentially, a decree is followed by one or several orders.

Foreign Court, Foreign Judgment (Sec. 13)- The Indian Code of Civil Procedure, 1908 (CPC)
lays down the procedure for enforcement of foreign judgments and decrees in India. CPC, 1908
had defined the following as-
Section 2(5) “foreign Court” means a Court situated outside India and not established or
continued by the authority of the Central Government.
Section 2(6) “foreign judgment” means the judgment of a foreign Court.

Mesne profits- Section 2(12) of the Code of Civil Procedure, 1908 defines the term “mesne
profits”. The Delhi High Court in the notable case of Phiraya Lal Alias Piara Lal vs Jia Rani And
Anr (1973) interpreted the meaning of the term “mesne profit” by observing that when a party
claims damages to recover the loss resulted from wrongful occupation of immovable property by
a trespasser that originally belonged to the party then such damages will be known as mesne
profits. The definition provided by Section 2(12) includes the exception of mesne profits which
is the profits obtained from the improvements made by the wrongful possessor in the property
will not fall under the ambit of mesne profits. The three significant takeaways from Section 2(12)
of the Code have been laid down hereunder;
1. It is to note that the definition has attached importance to due diligence for obtaining
mesne profits.
2. Mesne profits can only be awarded if the property in concern was unlawfully occupied
thereby depriving the original owner of his rights.
3. Interest is a fundamental part of mesne profits under Section 2(12).
Order XX Rule 12 of the Code of Civil Procedure, 1908 lays down the provision for the passing
of the decree by a competent civil court where there exists a suit for recovery of immovable
property possession, rent, or mesne profits. Put simply, a civil court, while presenting the rights
of the parties involved in a suit concerning mesne profits, will rely on Rule 12 of Order XX.

Affidavits; Order 19- Affidavits are dealt under Order 19 of the Code. It is a sworn statement
made by the person who is aware of the facts and circumstances which have taken place. The
person who makes and signs is known as ‘Deponent’. The deponent makes sure that the contents
are correct and true as per his knowledge and he thereby concealed no material therefrom. After
signing the document, the affidavit must be duly attested by the Oath Commissioner or Notary
appointed by the court of law. The person who gives attestation to the affidavit shall make sure
that the sign of the deponent is not forged. The affidavit shall be drafted as per the provisions of
the code. It must be paragraphed and numbered properly. Even though the “affidavit” has not
been defined in the code, it basically means “a sworn statement in writing made specifically
under oath or affirmation before an authorized officer or Magistrate.”

Suit- The word suit has not been defined anywhere in the Code, but it is a proceeding which is
commenced by presentation of a plaintiff. In Hansraj Gupta and Ors. vs. Official Liquidators of
the DehraDun-Mussoorie Electric Tramway [Link]., the Privy Council has defined the
expression “suit” as a civil proceeding instituted by presentation of a suit.

Plaint- A Plaint is a legal document that contains the content of any civil suit which shows the
Plaintiff’s claim after filing suit. The plaintiff is the first step of the Plaintiff in the form of a legal
document for the commencement of suit and it shows what a Plaintiff wants from that suit. The
concept of a plaintiff is mentioned in the Civil Procedure Code. Through the help of the plaintiff,
the plaintiff narrates or describes the cause of action and related information which is considered
as essential from the viewpoint of the suit. In the case of the plaintiff, the cause of action consists
of two divisions, first is the legal theory (the factual situation based on which the plaintiff claims
to have suffered) and second is the legal remedy that the plaintiff seeks from the court. A plaint
is considered an important concept because it is the foremost and initial stage to initiate any
lawsuit and helps to find a civil court of appropriate jurisdiction.
Order VII of the Code of Civil Procedure deals, particularly with plaint. In Order VII of CPC,
there are many different rules which deal with different constituents of plaint. Rules 1 to 8 deal
with the particulars of the plaint. Rule 9 of CPC deals with how the plaint will be admitted and
after that Rule 10 to 10-B talks about the return of the plaint and the appearance of parties. And
the main Rules i.e 11 to 13 deal with the rejection of the plaint and in which circumstances the
plaint can be rejected. Section 26 of the Code of Civil Procedure states “Every suit shall be
instituted by the presentation of a plaint or in such other manner as may be prescribed.” This
section clearly shows that a lawsuit is very much necessary for the establishment of a suit before
the civil or commercial court.

Written Statement- A written statement is the statement of the defendant in his defense in
which he either admits the claims or denies the facts alleged by plant leaf in his plaint. The
defendant can State New facts of the case and legal objections against the claim asked by the
plaintiff. Order VIII Rule 1 of the civil procedure code provides that, after the service of
summons, the defendant should file the written statement within 30 days. But in case if the
defendant fails to submit it before 30 days, Then he can file his statement within 90 days as the
Court allows him to do so.

CASE LAWS:-
● Carew & Co. v UOI , AIR 1975 SC 2260
● Madan Naik v Hansubala Devi AIR 1983 SC 676
● Shankar v Chandrakant AIR 1995 SC 1211

UNIT 4
Res Sub-Judice and Res Judicata (Sec. 10,11)
Nature, Scope and Objective of Res Sub-Judice- The principle of res sub-judice prevents the
court from proceeding with the trial of any suit in which the matter in issue is directly or
substantially the same with the previously instituted suit between the same parties and the court
where the issue is previously instituted is pending has the power to grant the relief sought.
This rule is applicable to the trial of the suit and not the institution. It does not restrict the court
from passing interim orders like injunction or stay. However, it applies to revisions and appeals.
The purpose behind this rule is to prevent multiplicity of cases in courts. It is also sought to
prevent the plaintiff from getting two separate decisions from different courts in his favor or two
contradictory judgements. It also ensures to protect the litigant from unnecessary harassment.
The policy of law is to restrict the plaintiff to one legislation, thus obviating the possibility of
two conflicting verdicts by one and the same court in respect of the same relief.

Principle of Res Judicata- The principle of res judicata seeks to promote the fair administration
of justice and honesty and to prevent the law from abuse. The principle of res judicata applies
when a litigant attempts to, after having received a judgment in a previous case involving the
same parties. file a subsequent lawsuit on the same matter In many jurisdictions, this applies not
only to the specific claims made in the first case but also to claims that could have been made
during the same case.
Prerequisites for Res Judicata
● A judicial decision by proficient court or tribunal,
● Final and binding and
● Any decision made on the merits
● A fair hearing
● Earlier decisions right or wrong are not relevant.
Nature and Scope of Res Judicata- Res judicata includes two concepts of claim preclusion and
issue preclusion. Issue preclusion is also known as collateral estoppel. Parties cannot sue each
other again after the final judgment on the basis of merits has reached in civil litigation. For
example, if a plaintiff wins or loses a case against the defendant in case say A, he cannot
probably sue the defendant again in case B based on the same facts and events. Not even in a
different court with the same facts and events. Whereas in issue preclusion it prohibits the
relitigation of issues of law that have already been determined by the judge as part of an earlier
case.
The scope has been decided in the case of Gulam Abbas v. State of Uttar Pradesh in this case the
court incorporated the rules as evidence as a plea of an issue already tried in an earlier case.
Judgment of this case was difficult as the judges should apply res judicata. It was decided that res
judicata is not exhaustive and even if the matter is not directly covered under the provisions of
the section it will be considered as a case of res judicata on general principles.

Restitution (Sec. 144)- The doctrine of restitution implies to bring the aggrieved party to the
original position where the benefit of the erroneous judgment of the court is received by the other
party who was not entitled to such benefit. Restitution is not a new concept and Section 144
merely gives statutory recognition to this principle. Section 144 of CPC deals with the
application for restitution.
Section 144 states that:
When a decree or order of the Court has been:
● varied/reversed in any appeal, revision or other proceedings;
● is set aside/ modified in any suit instituted for that purpose.
The Court that passed the decree/order will grant restitution on receiving an application of the
party entitled to the benefit. The court in the case of Mahjibhai Mohanbhai Barot vs Patel
Manibhai Gokalbhai held that an application for restitution is an application for execution of a
decree. The Supreme Court in the case of Lal Bhagwant Singh vs Rai Sahib Lala Sri Kishen Das
held that the party who received the benefit of the erroneous judgment is by law under an
obligation to make restitution to the other party for his loss. The same view was reiterated by the
court in the case of Binayak Swain vs Ramesh Chandra Panigrahi, the doctrine of restitution
means that, on reversal of a decree or order, an obligation is imposed by law on the party who
has received the benefit of the erroneous decree to make restitution to the other party for his loss.
This obligation automatically arises when the decree or order is reversed or modified by the
Court. It necessarily carries with it the right of restitution for all the things that have been done
under the erroneous decree. The Court while making restitution is under a duty to restore the
parties, as far as possible, at the time when the erroneous action of the Court displaced them. The
Apex Court in the case of Union Carbide Corporation v. Union of India held that restitution is a
principle of equity and is subject to the Court’s discretion. Section 144 of CPC doesn’t grant any
new substantive right to the party not already obtained under the general law. The Court is
obliged to ensure that no one goes back with a feeling that he was impaired by an act which he
did on the faith of the Court’s order.
Actus curiae neminem gravabit- The Latin maxim actus curiae neminem gravabit means the act
of court should not affect anyone and is founded upon the principle of equity. The Court is
obliged to ensure that no one is endured by its order and it should not pass any order to the
prejudice of any person.
Caveat (Sec. 148A)- The caveat in Latin means “let a person be aware” and in law, it may be
understood as a notice given asking not to act in a certain manner without informing the person
who gave such a notice. Under the Civil Procedure Court, the provision of caveat is dealt with in
Section 148A. Even Though CPC does not define caveat in the case of Nirmal Chandra v.
Girindra Narayan, the court defined caveat as a warning given by an individual to the court that
no order or judgment shall be passed without giving notice or without hearing the caveator. The
person who files a caveat is called the Caveator and the person who has instituted a suit or is
likely to do so is called caveatee. The main object of caveat is to ensure that the court does not
pass ex parte orders and that the interests of the caveator are protected. Caveat also reduces the
burden of court and brings an end to the litigation as it reduces the multiplicity of proceedings.
The purpose of the caveat was to save the cost and convenience of the court.

Inherent power of Courts (Sec. 148-153B)- Meaning of ‘inherent’ is existing in something as a

permanent, absolute, inseparable, essential or characteristic attribute. Inherent powers of courts
are those powers which may be applied by the court to perform full and complete justice between
the parties before it. It is the duty of the Courts to serve justice in every case, whether given in
this code or not, brings with it the important power to do justice in the absence of a definite or
separate provision. This power is said to be the inherent power that is maintained by the court,
though not conferred. Section 151 of the Civil Procedure Code deals with the inherent powers of
the court. Following are the provisions of Inherent powers of Courts:
● Section 148 and Section 149 deals with grant or enlargement of time;
● Section 150 deals with the transfer of business;
● Section 151 protects the inherent powers of the courts; and
● Section 152, 153 and Section 153A deals with amendments in judgments, decrees or
orders or in separate proceedings.

CASE LAWS:-
● SatyadhyanGhosal v Deorjin Debi AIR 1960 SC 941
● Daryao v UP AIR 1961 SC 1457
● Devi Lal Modi v STO AIR 1965 SC 1150
● Nirmal Chandra v GirindraNarayan,AIR 1978Cal 492
● Manoharlal v Seth Hiralal, AIR 1962 SC 527

UNIT 5
Introduction- The foremost thing which is to be determined during the filing of a suit is the
place of suing. This decides the place for trial, and it has nothing to do with the competency of
the court. The jurisdiction of a court to entertain, adjudicate and decide a suit is restricted, based
on the circumstances of the suit. The legal maxim “ubi jus ibi remedium” which means that
where there is a right there is a remedy, a very common principle in English law is accepted by
our Indian legal system as well. The violation of rights requires a person to approach the
appropriate forum for compensation. Then the role of the judicial forum matters more because
this is the only forum having the jurisdiction to deal with the matter and adjudicate as well. This
is an important point since every court has its own jurisdiction. The meaning of jurisdiction-,
where `jur’ stands for law and ‘diction’ means saying. And if we go through the Code’s
definition it is put forth as “the limit of a judicial authority or the extent to which a court of law
can exercise its authority over suits.”
The thing which is to be determined during the filing of a suit is the place for the institution of
the suit. It decides the place for trial and it has nothing to do with the competency of the courts.
Sections 15 to 20 of the Civil Procedure Code throws light upon the appropriate forum for
instituting suits in India. The purpose behind this is to briefly explain the concept of the place of
filing a case in every situation and what are the things to be kept in mind while suing someone.

How to decide upon which court to approach?-So starting off with the concept of court in
India, it has come from the British Era, where the first Governor-General of India, Warren
Hastings in 1772 introduced the court’s civil matters and criminal matters. After that, Lord
Cornwallis came up with three phases of the judicial plan to improve the judiciary in 1787, 1790,
1793 respectively. Jurisdiction of civil courts is in India is mainly decided on the basis of the:
1. Pecuniary value
2. Territorial limit
Section 9 of the Civil Procedure Code, 1908 puts forth the provision for courts to try all the suits
unless barred. The courts shall (subject to the provisions herein contained) have jurisdiction to
try all suits of a civil nature excluding the suits of which their cognizance is either expressly or
impliedly barred.
Explanation 1- A suit in which the right to property or to an office is contested is a suit of a civil
nature, notwithstanding that such right may depend entirely on the decisions of questions as to
religious rites or ceremonies.
Explanation 2- For the purpose of this section, it is immaterial whether or not any fees are
attached to the office referred to in explanation 1 or whether or not such office is attached to a
particular place.

Pecuniary jurisdiction- Pecuniary jurisdiction is related to money when whether a court can try
cases and suits of the monetary value of the case or suit is in question. Pecuniary jurisdiction as
per Section 15 talks of every suit shall be instituted in the court of lowest grade competent to try
it. The word competent denotes that the court must have the power to hear the case with regards
to pecuniary jurisdiction. The court of lowest grade who has jurisdiction with regards to
pecuniary value shall deal with the case at the first example. Therefore, the question stands out to
be: who decides the value of the case? Generally, the plaintiff makes an evaluation of the suit for
the purpose of deciding the pecuniary jurisdiction of the court except it prima facie appears to the
court that the evaluation wasn’t done correctly. Then the courts find that the evaluation was
correct or not. Then the court will allow the party to approach the court.
The Code provides that a Court will have jurisdiction only over those suits the amount or value
of the subject-matter of which does not exceed the pecuniary limits of its jurisdiction. Some
Courts have unlimited pecuniary jurisdiction, e.g., High Courts and District Courts have no
pecuniary limitations. But there are other Courts having jurisdiction to try suits UP to a particular
amount. Thus, a Presidency Small Causes Court cannot entertain a suit in which the amount
claimed exceeds Rs.1000.

Territorial jurisdiction- Every Court has its own local or territorial limits beyond which it
cannot exercise its jurisdiction. These limits are fixed by the government. The District Judge has
to exercise jurisdiction within his District and not outside. The High Court has jurisdiction over
the territory of a State within which it is situated and not beyond it. Again, a Court has no
jurisdiction to try a suit for immovable property situated beyond its local limits. Territorial
jurisdiction means that the courts have power over the person and its actions, and bounds in a
particular territory. In the Civil Procedure Code, territorial jurisdiction is explained under
Sections 16 to 20 in the following ways:
1. Suits related to Immovable property (Sections 16 to 18)
2. Suits related to Movable property (Section 19)
3. Other suits (Section 20)

Suits related to immovable property

● Section 16– of Code states that– Suits to be instituted where subject-matter situate.
Subject to the limitations prescribed by law, suits,–
1. For the recovery of immovable property with or without rent or profits,
2. For the partition of immovable property,
3. For enclosure, sale, or redemption in the case of a mortgage of or charge upon
immovable property,
4. For the determination of any other right to or interest in immovable property,
5. For compensation for wrong to immovable property,
6. For the recovery of the movable property actually under distraint or attachment,
Shall be instituted in the court within the local limits of whose jurisdiction the property is
situated. Also one has to keep in mind that by ‘property’ it means those properties that are
situated in India.
● Section 17– Suits for immovable property situate within the jurisdiction of different
courts – property situated within the jurisdiction of different courts, the suit may be
instituted in any court within the local limits of the jurisdiction of property.
● Section 18– The place of institution of the suit where local’s limits of jurisdiction are
uncertain.– if local limits of property jurisdiction are uncertain and any of those courts
may, if satisfied that there is ground for the alleged uncertainty, the record of statement to
the effect and thereupon proceed to entertain and dispose of any suit relating to that
property, and its decree in the suit shall have the same effect as if the property situated
 within the local limits of the jurisdiction. And if a suit relating to such property was made
by that court which does not have jurisdiction where the property is situated, the appellate
court simply disposes of the order and the decree stating the consequent failure of justice.

Suits related to movable property (Section 19)– Suits for compensation for wrong to person or
movables: if the wrong was done within the local’s limits of the jurisdiction of courts and if any
one of the party resides, or personally work for gain, within the local limits of the jurisdiction of
another court, the suit may be instituted at the option of the aggrieved party in either of the
courts.
Illustrations: A, residing in Delhi, beats B in Calcutta, B may sue A either in Calcutta or in Delhi.

Other suits (Section 20)– Other suits to be instituted where the defendant resides or cause of
action arises: Every suit shall be instituted in a court within local limits of the jurisdiction of
courts, whether each one or any one of the defendants actually or voluntarily resides, or carries
business, or personal gain.
Illustration: A resides in Delhi, B in Haryana, and C in Punjab. A, B, and C being together at
Ghaziabad, B and C make a joint promissory note payable on demand and deliver it to A. A may
sue B And C at Ghaziabad, where the cause of action arose. He may also sue them at Haryana,
where B resides, or at Punjab, where C resides: but in each of these cases, if the non-resident
defendant objects, the suits cannot proceed without the leave of the court.

Jurisdiction as to subject-matter– Different Courts have been empowered to decide different

types of suits. Certain Courts are precluded from entertaining certain suits. Thus a Presidency
Small Causes Court has no jurisdiction to try suits for specific performance of a contract,
partition of immovable property, foreclosure or redemption of a mortgage, etc. Similarly, in
respect of testamentary matters, divorce cases, probate proceedings, insolvency proceedings, etc.,
only the District Judge or Civil Judge ([Link].) has jurisdiction.

Institution of Suits- Pg. 1 and 2

[Link]

Summon- Pg.
[Link]
[Link]

CASE LAWS:-
● A R Antulay v R S Nayak AIR 1988 SC 1531
● Official Trustee v SachindraNath AIR 1969 SC 823
● Kiran Singh v ChamanPaswan AIR 1954 SC 340
● Premier Automobiles v K. ShantaramAIR 1975 SC 2238
 ● Dhulabhai v St. of M.P AIR 1969 SC 78
● Patel Roadways Bombay v Prasad Trading Co. AIR 1992 SC 1514

UNIT 6
Introduction- Pleadings form the foundation for any case in the court of law. It is a statement in
writing filed by the counsel of plaintiff stating his contentions on the case, on the basis of which
the defendant shall file the written statement defending himself and explaining why the
plaintiff’s contentions should not prevail. Sometimes the plaintiff, having filed his plaint, may,
with the leave of the court, file a statement or the court may require him to file a written
statement. In such cases, the written statement forms part of the plaintiff’s pleadings. Similarly,
there are cases in which the defendant having filed his written statement may, with the leave of
the court, file an additional written statement or the Court may require him to do so. In such
cases the additional written statement also forms part of the defendant’s pleadings. This is the
first stage of a suit. Code of Civil Procedure (CPC) in order 6, Rule 1 defines pleadings as a
written statement or a plaint. The plaintiff’s written statement and the defendant’s additional
written statement are termed supplemental pleadings.

Objective of pleading- The whole objective behind pleading is to narrow down on the issues
and provide a clear picture of the case thereby enhancing and expediting the court proceedings.
The pleadings help both the parties know their point of dispute and where both parties differ so
as to bring forth the relevant arguments and evidence in the court of law.

Rules of Pleadings- The four words which can crisply summarize the rule of pleading is ‘Plead
facts not law’. The counsel of both the parties should only project the facts in their respective
case rather than suggesting on the laws applicable in the particular case. To gain a crystal clear
understanding of the same, the rules can be studied in two parts that is:
1. Basic or Fundamental Rules
2. Particulars or other rules

Basic or Fundamental Rules- Basic or Fundamental Rules are discussed in the sub-rule (1) of
Rule 2 of Order VI of the Code of Civil Procedure, 1908. Summarizing the provision, the basic
rules of pleadings are the following:
Facts should be pleaded upon and not the law- This was first held in the case Kedar Lal v. Hari
Lal where it was held that the parties are under the duty to state the facts on which they are
claiming their compensation. The court shall apply the law as per the stated facts to render the
judgment. One should not assert or apply any laws for claiming right on the stated facts.
Material facts should be pleaded- The second basic rule is to present facts which are material
only. Immaterial facts shall not be considered. The question arose in the court of law about the
actual scope of ‘material facts’. It was decided by the judge in the case Union of India v. Sita
Ram that material facts will be inclusive of all those facts upon which the plaintiff’s counsel will
claim damages or rights as the case may be or the defendant will put forth his defense. In
nutshell, facts which will form the basis for claiming a right or compensation by the plaintiff or
prove the defendant’s defense in the written statement will fall under the ambit of being
‘material’.
Evidence should not be included while pleading- It says that pleadings should contain a
statement of material facts on which the party relies but not the evidence by which those facts are
to be proved. There are two types of facts :
● Facts probanda : the facts which need to be proved, i.e material facts
● Facts probantia: facts by which a case is to be proved, i.e., evidence
Only facts probanda should form the part of pleadings and not facts probantia. The material facts
on which the plaintiff relies for his claim or the defendant relies for his defense are called facta
probanda, and they must be stated in the plaint or in the written statement, as the case may be.
Facts in a concise manner should be presented- This is the last and final basic rule of pleadings.
Compressed and crisp presentation must be adhered while presenting the pleadings. At the same
time it must be kept in mind that in order to maintain brevity of facts one should not miss out on
important facts in the pleadings. Pleadings can be saved from superfluity if one takes care in
syntax.
Particulars or other rules
1. Particulars with dates and items should be stated wherever fraud, misrepresentation,
breach of trust, undue influence or wilful default are pleaded in the pleadings.
2. Generally departure from pleading is not permissible, and except by way of amendment,
no party can raise any ground of claim or contain any allegation of fact inconsistent with
his previous pleadings.
3. Non-performance of a condition precedent should be specifically mentioned in the
pleadings. Performance of the same shall not form a part of the pleadings since it is
already implied.
4. If the opposite party denies a contract, it will be held as denial of the facts of the contract
and not its validity, enforceability and legality.
5. Wherever malice, fraudulent intention, knowledge or other condition of the mind of a
person is material, it may be alleged in the pleading only as a fact without setting out the
circumstances from which it is to be inferred.
6. Unless the facts are material, there is no need for the facts to be stated in verbatim.
7. Pleadings should only state the giving of a notice, when it is required to give a notice or
condition precedent, without disclosing the form or manner of such notice or giving
details of any circumstances from which the form of notice can be determined, unless the
same is material.
8. Implied relations between persons or contracts can be alleged as facts and the series of
conversations, letters and the circumstances from which they are to be inferred should be
pleaded generally.
9. The facts which deal with onus of proof or which favors a party shall not be pleaded.
 10. Every pleading should be signed by the party or one of the parties or by his pleader.
11. A party to the suit shall provide with his and the opposite party’s address.
12. Each and every pleading needs to be approved by making an affidavit by the party or a
person who is acquainted with the facts stated in the pleading.
13. A pleading may be ordered to be strike out by a court of law, if it feels the same is
scandalous, frivolous, unnecessary or intended towards embarrassing, prejudicing or
delaying a fair trial in the court.
14. Amendment of pleadings shall be allowed by the court
15. The pleadings shall be divided in proper paragraphs whenever required, consecutively
numbered and structured properly. Every argument or allegations must be in separate
paragraphs. Dates, sums and any totals shall be expressed in figures as well as in words
so as to maintain clarity for the judge as well as the parties concerned in the trial.
16. Forms in Appendix A of the Code should be used wherever they are applicable. Where
they are not applicable, forms of nature should be used.

Amendment of Pleadings- Rules 17 and 18 of Order VI of Code of Civil Procedure, 1908 deal
with amendment of pleading. These provisions aim towards achieving justice in the society. Rule
17 of the Code of Civil Procedure, 1908 provides that either parties may be ordered to amend or
alter his pleading at any stage of the proceeding in such manner which shall be fair and just and
allow amendment when necessary so as to determine the exact controversial question between
the parties.
On the other hand Rule 18 deals with the issue of failure of amending the pleading. It deals with
the law that if court orders a party to make necessary and if he fails to do the same within the
given time limit given by the order or if no time is limited then within 14 days from the date of
the order, he shall not be permitted to amend after the expiration of such limited time as
aforesaid or of such 14 days, as the case may be, unless the time is extended by the Court.

What is Plaint? Plaint is a legal document that contains the plaintiff's claim presented before a
civil court of competent jurisdiction. It is a pleading of the plaintiff and the first step taken for the
institution of a suit. Now, what all is composed within a plaint? The contents and essentials of
the civil suit are laid out in a plaint, including the plaintiff’s claim. It showcases the grievances of
the plaintiff & the causes of action that can arise out of the suit. It hasn't been defined in the CPC
but it has been laid down under Order VII of the CPC.
Particulars of A Plaint
● Name of the court where the suit is initiated.
● Name, place, & description of the plaintiff's residence.
● Name, place, & description of the defendant's residence.
● A statement of unsoundness of mind or minority in case the plaintiff or the defendant
belongs to either of the categories.
● Facts which led to the cause of action and when it arose.
 ● Facts which point out the jurisdiction of the court.
● The plaintiff's claim for relief.
● The amount allowed or relinquished by the plaintiff just in case.
● A statement containing the value of the subject matter of the suit as admitted by the case.

Written statement- A written Statement is nothing but a reply from the defendant to the plaint
led by the plaintiff. It is the pleading of the defendant where he deals with the material fact
alleged by the plaintiff in his plaint and also elucidates any new fact favoring him or taking legal
objections against the plaintiff's claims in the plaint. In a written statement the defendant can
deny the allegations made in the plaint against him. Apart from this, he can also claim to set off
any sums of money payable by the plaintiff to him as a counter-defence (Order 8 Rule 6). On the
other hand, if the defendant has any claim against the plaintiff concerning any matter in the issue
raised in the plaint, he can separately file a counter-claim alongside his written statement (Order
8 Rule 6A to 6G)
Who may file a written statement? A written statement may be filed by the defendant or by his
duly authorized agent. In the case of more than one defendant, the common written statement led
by them must be signed by all of them. However, it will suffice if it is verified by one of them
who is aware of the facts of the case.
Time limit for written statement- A written statement must be filed within thirty days from the
service of the summons on him. The said period can be extended up to ninety days.

Difference between Plaint and Written Statement

S. No. Plaint Written Statement

1. A legal document stating the cause of A defense statement comprising all material facts
action and other mandatory particulars and other details against the plaint is a “written
supports the plaintiff's claim. statement”.

2. It is filed by the plaintiff stating its facts It is filed by the defendant as a reply to the plaintiff's
and relief to be claimed by the plaintiff. claims.

It contains the name of the court, name, it contains all materials and other objections that the
place, and description of the plaintiff's defendant might place before the court to admit or
& defendant’s residence, a statement of deny the plaintiff's claim.
unsoundness of mind, cause of action,
relief claimed etc.

3. Plaint is the first stage in a civil suit for A written statement must be filed within 30 days
institution of suit. from the date of receipt of the copy of the plaint.
(extended to 90 days)
4. Generally it is divided in parts like- a A general denial of grounds alleged in the plaint is
heading, the cause title, the body, the not sufficient and denial has to be specific and must
prayer, signature & verification of the be substantiated with documentary evidence.
plaintiff.

5. Plaint must contain name, description Every allegation of fact in the plaint if not denied
and residence of defendant. specifically shall be deemed to be admitted.

6. Order VII of CPC deals with plaint. Order VIII of the CPC deals with written statements.

Discovery (Order 11)- Under Civil Procedure Code, 1908 discovery basically means a pre-trial
procedural aspect wherein each party is given an opportunity to obtain evidence from the
opposite party or parties. In other words, we can say that it is a formal process wherein the
parties get a chance to exchange information regarding the witnesses and evidence which will be
presented before the court during the trial. The main purpose of discovery is to make the parties
aware of the case, that means there shall not be any ambiguity between parties while the trial is
going on. Both the parties shall be clear about the plaint made and issues thereby.
There are various types of discovery:-
1. interrogatories;
2. requests for production of documents and inspection;
3. requests for admissions;
4. depositions;
5. subpoenas duces tecum;
6. physical and mental examinations.

Discovery of documents- When the adversary party is simply compelled to disclose the
documents which are under its possession or power, then that is called the discovery of
documents. The discovery of documents is covered under the Rule 12-14 Order XI of the code.
Who may seek discovery? Any party to a suit under oath may apply for an order from the court
for the discovery of documents which are related to the matter in question of the suit from the
adversary party.
Against whom discovery may be ordered? An appropriate court can order any party of the suit to
dispose of the documents which are in its power or possession to the asking party. However, the
party needs to be related to the suit.
Conditions- While the discovery of documents is being asked, two conditions need to be taken
care of by the court:-
1. The discovery order is necessary for the fair disposal of the suit.
2. The discovery will save costs.
Objection against discovery- The party can raise an objection if the documents required to
submit comes under the purview of the privileged documents. However, objecting by filing an
affidavit would not be enough, the party who is objecting also needs to give proper reasoning
behind such objection. The proper reasoning will enable the court to decide the objection raised
by the party. It is open to the court to inspect the documents and check the viability of the
objection raised by the party. Another objection which can be filed is that discovery is not
necessary at this stage of the suit.

Inspection of documents- Under Order XI Rule 12-21 of the CPC, the rule for the inspection of
discovery is provided. As per Rule 12 of the code the party can compel other parties to produce
the documents without filing an affidavit to apply to the court, relating to any matter of
question-related to the suit. However, such documents need not be admissible in court unless
they give out some connection in a matter of controversy. As per the Rule 15-19 of Order XI of
the code, the inspection of documents can be divided into two categories:
1. The documents which are referred to in the affidavits or pleadings of the parties.
2. The documents which are not referred to in the pleadings of the party but are in the power
or possession of the parties.
And the parties are allowed to get the inspection of the former category documents, not the latter
one.
Privileged documents- Privileged documents are :
1. Public records;
2. Confidential communication;
3. Documents which have exclusive evidence of the parties’ title.
Premature discovery- As per Rule 20, a discovery is termed as premature discovery or
inspection:
1. When the right to discovery is based on the determination of any issue or question in
dispute; or
2. For any reason, it is desirable that any issue or question in a suit should be determined
before deciding upon the right of discovery.

Production of documents- As per Rule 1 of Order XIII, the parties or their pleaders shall
produce the documents at or before the settlement of disputes.
Admission of documents- Subject to the provisions of the Code the admission of the documents
are allowed as evidence in the suit when the following particulars are made:
1. The number and title of the suit,
2. The name of the person producing the document,
3. The date on which it was produced, and
4. A statement of it having been so admitted;
The endorsed documents shall be signed by the Judge.
Where the admission of documents in evidence is:
● An entry in a letter-book or a shop book; or
● Other accounts which are in current use, or
● Entry in a public record produced from the public office or by a public officer, or
 ● An entry in a book or account belonging to a person other than a party on whose behalf
the book or account is produced; under such circumstances, the person can produce a
copy of the document, after the proper examination, comparison and certification as per
Rule 17 of Order VII of the Code.
Further, the documents admitted into evidence shall be part of the record of the suit.
Return of documents- If any party to the suit or not is having the desire to receive back any of the
documents submitted by him in the suit which is placed on the record is entitled to receive the
documents unless it is impounded by the court under Rule 8.
The court can return the documents on the following grounds:-
1. Where the suit is one in which an appeal is not allowed, when the suit has been disposed
of, and;
2. where the suit is one in which an appeal is allowed when the Court is satisfied that the
time for preferring an appeal has elapsed and that no appeal has been preferred or if an
appeal has been preferred when the appeal has been disposed of;
3. During the pendency of the suit, the party can receive the documents if the following
conditions are fulfilled:
● the party is substituting the original document with a certified copy from a proper officer;
● Undertakes to produce the original copy if required.
While returning the document which has been admitted in evidence, a receipt shall be given to
the person who is receiving it.
Rejection of documents- Rule 3 gives the discretion to the court to reject the documents on the
basis of inadmissibility or irrelevance of the document. The court while rejecting the documents
shall also mention the grounds of such rejection.
Impounding of documents- The court can order the parties in the suit to produce any documents
or book before the court as per Rule 8 notwithstanding Rule 5 or Rule 7 of Order 13 or Rule 17
of Order 7 of the code. The documents or books impounded by the court shall be in the custody
of an officer of the court, for such period with subject to conditions if required.

Counter claim and Set-off:- A civil suit is instituted by filing a plaint in the appropriate court
which has jurisdiction over the subject-matter. A plaint is filed by the plaintiff. Similarly, the
defendant has to file a written statement, i.e., response to the content in the plaint. This written
statement, in some cases, is accompanied by set-off and counter-claim. So, set-off and
counter-claims are the cross-claims done by the defendant and these cross-claims cannot be
contested unless they are accompanied by the written statement. A written statement is a reply to
the plaint, and such reply has to be given within 30 days the date of the filing of the plaint.
Set-Off- Set-off is related to debts. It is the reciprocal claim made by the defendant. Set-off can
be used only under the suit for recovery of money. This can be better explained by an example.
Suppose, A files a suit against B claiming that the latter is Rs.20,000 due to him. Now, B also has
a claim against A that he is Rs.10,000 in debt to the former, i.e., A is Rs.10,000 in debt of B.
Here, both are mutually indebted to each other, and they both have to pay off the debts due to
each other. Instead of filing a fresh suit altogether, B files a set-off claim along with the written
statement in response to the plaint filed by A. Set-off is dealt under Order VIII Rule 6, and it says
that such a written statement along with a set-off should be considered by the Court as much as
plaint because it too has a subject matter that is in dispute. However, there are certain conditions
that have to be met for filing a set-off by the defendant. They are:-
● The suit initiated must be for recovery of money. So, a set-off can be filed only in money
suits.
● The defendant must claim only the amount that he has already lent to the plaintiff. The
defendant cannot claim the money he has not already lent. It means the money should be
ascertained.
● The ascertained money should be legally recoverable by the defendant from the plaintiff.
It should not be barred by any laws of limitation.
● The recoverable money by the defendant should be defendant or defendants if there are
many, and in the same way, it should be recovered from the plaintiff or plaintiffs if there
are many.
● The set-off should be filed only in the court which has financial jurisdiction.

Counter-claim- Counter-claim is dealt under Order VIII Rules 6-A to 6-G of the Code of Civil
Procedure, 1908. It is a claim which is separate and independent from that of the plaintiff. It is
also cross-claim but does not necessarily arise out of the same cause of action contained in the
plaint. Unlike set-off, a counter-claim need not be mandatorily related to the recovery of money.
It could be regarding any civil disputes.
The characteristics of counter-claim are as follows:
● Counter-claim also should accompany a written statement. If it is not filed along with the
written statement, the court usually does not allow the defendant to file the counter-claim
at a later stage in the suit, if his intention is to prolong the proceedings of the suit.
Nonetheless, the counter-claim can always be filed as subsequent pleading under Rule 9
of the same Order.
● Counter-claim was brought into existence to avoid multiplicity of proceedings and
thereby save a lot of the court's valuable time.
For example, A files a suit against B and B also wants to file a suit against A for a completely
different subject matter. Instead of filing a separate suit, B makes a counter-claim against A.
Here, a lot of time is being saved since the counter-claim proceedings are being carried on by the
original suit proceedings.
● The counter-claim is treated on par with the plaint, and the plaintiff should file a written
statement in response to the counter-claim. The court can pronounce final judgment both
on the original claim and the counter-claim.
● For the defendant, the counter-claim can be filed by the defendant against the plaintiff. In
some instances, he can claim from co-defendants along with the plaintiffs. But a
counter-claim solely to claim from the co-defendants is not entertained by the courts.
 ● The counter-claim should be filed only when the subject matter is not barred by the
Limitation Act.
Particulars Set off Counter claim
Legal Provision The set off is provided under Order VIII Counter claim is provided under Order
Rule 6 of the Code of Civil Procedure, VIII Rule 6A to Rule 6G of the code of
1908. civil procedure, 1908.
Object The object of set off is to give an The object of the counter claim is to
opportunity to the defendant to set up his avoid multiplicity of proceedings.
claim for recovery of money from the
plaintiff’s claim.
Claim The set off can be claimed in the recovery The counter claim can be claimed in all
of money suits only. other suits such as title, possession, or in
the injunction.
Scope It has a narrow scope or is related to It has a wider scope.
money.
Genesis The origin of the set off is from “equity”. The counter claim is a part of set off and
has a wider scope.
Rule’s applicability Set off the rules relating to written In counter claim rules relating to plaint
statements will be followed. will follow.

Unit-7
The appearance of parties to the suit- As stated under Rule 1 of Order IX of the Code of Civil
Procedure, the parties to the suit are required to attend the court either in person or by their
pleaders on the day which has been fixed in the summons. If the plaintiff or a defendant, when
ordered to appear in person, do not appear before the court and neither show the sufficient cause
for his non-appearance, the court is empowered under Rule 12 of Order IX as follows.
1. If the plaintiff does not appear, dismiss the suit.
2. If the defendant does not appear, pass an ex-parte order.

Non-appearance of both parties to the suit- When neither the plaintiff nor the defendant
appears before the court when the suit is called for hearing, then the court is empowered to
dismiss the suit under Rule 3 of Order IX. The dismissal of the suit under this rule does not put a
bar on filing a fresh suit on the same cause of action as per Rule 4. The plaintiff can also apply
for setting aside the dismissal if he is able to satisfy the court that there was sufficient evidence
behind his non-appearance. If the court is satisfied with the cause of non-appearance then it may
set aside the order of dismissal and schedule a day for the hearing of the suit.

The appearance of the plaintiff- When only the plaintiff appears but the defendant does not
appear, then an ex-parte order can be passed against the defendant. But, the plaintiff has to prove
that the summon was served to the defendant. If service of the summons is proved then only the
court can proceed for an ex-parte against the defendant and the court may pass a decree in favor
of the plaintiff. This provision applies only for the first hearing and not for the subsequent
hearings of the matter. Even while passing an ex-parte order it is the duty of the court to secure
the end of justice even in the absence of the defendant. In the case of Maya Devi v. Lalta Prasad,
it has been held by the Supreme Court that -It is the duty of the court to ensure that statements in
the plaint stand proven and the prayers asked before the court are worthy of being granted. This
provision of passing ex parte order cannot be passed when there are more than one defendants in
the case and any of them appears.

Appearance of defendant- The provisions laid down to deal with the appearance of only the
defendant has been laid down from rule 7-11 of Order IX. When the defendant appears but there
is non-appearance of the plaintiff, then there can be two situations:-
1. The defendant does not admit the claim of the plaintiff, either wholly or any part of it.
2. The defendant admits the plaintiff claim.
If the defendant does not admit the claim of the plaintiff, then the court shall order for dismissal
of the suit. But, when the defendant admits completely or any part of the claim made by the
plaintiff then the court is empowered to pass a decree against the defendant on the ground of
such admission and for the rest of the claim, the suit will be dismissed. Dismissal of the suit of
the plaintiff without hearing him is a serious matter and it should not be adopted unless the court
gets satisfied that in the interest of justice such dismissal is required.
Does the same provision apply to the non-appearance of the plaintiff due to death? When the
plaintiff does not appear because of death, the court has no power to dismiss the suit. Even if
such an order is passed it will amount to a nullity.
Application to set aside the dismissal- When the suit has been dismissed on the ground of
non-appearance of the plaintiff then he can make an application to set aside the order of
dismissal. If the court is satisfied with the reason of non-appearance as a sufficient cause then the
court can set aside the order dismissing the suit and fix a day for the proceeding of the suit.
Sufficient cause- For considering the sufficient cause of non-appearance of the plaintiff the main
point to be considered is whether the plaintiff really tried to appear on the day which was fixed
for hearing or not. When sufficient cause is shown by the plaintiff for his non-appearance, then it
is mandatory for the court to reopen the suit. Sufficient cause depends upon the facts and
circumstances of each and every case. In the case of Chhotalal v. Ambala Hargovan, the Bombay
High Court observed that if the party arrives late and finds its suit dismissed due to his
non-appearance then he is entitled to have his suit or application restored with the payment of
costs.

When summon is not served- Rule 2 to 5 of Order IX lays down the provision for the situation
when the summon is not served to the defendant. One of the fundamental laws of procedural law
is that a party must be given a fair opportunity to represent his case. And, for this, a notice of the
legal proceedings initiated against him is obligatory. Therefore, service summons to the
defendant is mandatory and it is a conditional precedent. When there is no service of summons
or it does not give him sufficient time for effective presentation of the case then a decree cannot
be passed against him.
Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of summons to
the defendant then the suit may be dismissed. But, no dismissal can be made even in the presence
of such failure if the defendant appears on the day of hearing either in person or through his
pleader. However, the plaintiff is entitled to file a fresh suit when the suit is dismissed under this
rule. and, if the court is satisfied that there is a reasonable reason behind such failure to pay costs
then the court may set aside the order of dismissal. When the summons is returned unserved and
the plaintiff does not apply for fresh summons for 7 days from which the summons is returned
unserved by the defendant or any of the defendants, then the court can dismiss the suit against
the defendant or such defendants. When the summon was not duly served to the defendant and is
not proved then the court can direct to issue a fresh summon to the defendant for service. When
the service of the summons is proved before the court but the time prescribed in the summons is
not sufficient for him to answer on the day which has been fixed, then the hearing can be
postponed by the court to a future date and notice will be given to the defendant.

Ex-parte Decree- When the defendant is absent on the day of the hearing as fixed in the
summon an ex-parte decree can be passed. The ex-parte order is passed when the plaintiff
appears before the court on the day of the hearing but the defendant does not even after the
summon has been duly served. The court can hear the suit ex-parte and give an ex-parte decree
against the defendant.
Remedies against an ex-parte decree- When an ex-parte decree has been passed against a
defendant, the following remedies are available to him.
1. He can apply to the court under rule 13 of Order IX for setting aside the ex-parte decree
passed by the court.
2. He can appeal against that decree under section 96(2) of the Code or, prefer revision
under section 115 of the code when no appeal lies.
3. He can apply for a review under Order 47 Rule 1.
4. A suit on the ground of fraud can be filed.
Setting aside an ex-parte decree- For setting aside an ex-parte decree an application may be made
by the defendant. An application to set aside a decree can be made to the court passing that
decree. There are certain rules to be followed for setting aside an ex-parte decree and if the
defendant satisfies the court with sufficient reason, then only the ex-parte decree which has been
passed can be set aside. The limitation period for making an application for setting aside an
ex-parte decree is 30 days.
The grounds on which an ex-parte decree can be set aside are:
1. When the summons have not been duly served.
2. Due to any “sufficient cause”, he could not appear on the day of the hearing.
First Hearing:- The literal meaning of the term first hearing is the initial day on which the court
goes into the pleadings of parties in order to understand their controversies or disputes arising
between the petitioner and defendant. The second stage of the hearing is for the defendant to file
a written statement, the third stage is to frame and settle the issue and the day on which the issue
is framed is the first hearing in the suit. The case on which no issues need to be framed in such
cases the first day would be the day on which trial starts. For example, in a small cause suit, the
petition was filed. Thus for the first time, the date of the case is called out for hearing and really
gone into and not the day when the date was fixed for hearing but was not good for framing the
issues to be decided by the court itself.

Section 89 CPC: Arbitration is well-known in the legal community as a less formal type of
adjudication where a decision is made in one party’s favor and the award may be contested.
Since 1987, Lok Adalats (peoples’ courts) have gained popularity as a speedy means of resolving
minor disputes. Conciliation, which is also referred to as mediation, is a relatively new practice.
An impartial party interacts with the parties during this voluntary and private procedure and
assists them in reaching a mutually agreeable resolution of their conflict. Mediators have
undergone training, use a set of skills and strategies, and adhere to a set of rules. In the past,
structured mediation of this kind was not accessible in India. It was hoped to integrate
advancements from other countries into the legal culture of the nation through Section 89. The
following justifications were given for inserting Section 89 in the Statement of Objects and
Reasons (SOR) for introducing the Code of Civil Procedure (Amendment) Bill, 1997:
● The SOR recommended that it needs to be made obligatory for the court to refer to the
dispute once the issues are framed for settlement by arbitration, conciliation, mediation,
judicial settlement, or through Lok Adalat.
● The abovementioned point is important in order to implement the Law Commission’s
report and an effective conciliation scheme.
● Further, the suit will only continue in the court where it was filed if the parties are unable
to resolve their differences through one of the alternative dispute resolution procedures.
The State must ensure that the functioning of the legal system promotes justice on the basis of
equal opportunity, according to Article 39A of the Indian Constitution (enacted in 1976), and
must, in particular, provide free legal aid through appropriate legislation or programmes to
ensure that opportunities to secure justice are not denied to any citizen due to economic or other
disabilities.
Types of ADR- [Link]

What does Section 89 CPC say- “Settlement of disputes outside the Court —
(1) Where it appears to the Court that there exist elements of a settlement which may be
acceptable to the parties, the Court shall formulate the terms of settlement and give them
to the parties for their observations and after receiving the observations of the parties, the
Court may reformulate the terms of a possible settlement and refer the same for:–
 (a) Arbitration;
(b) Conciliation;
(c) Judicial settlement including settlement through Lok Adalat: or
(d) Mediation.
(2) Were a dispute has been referred –
(a) for arbitration or conciliation, the provisions of the Arbitration and Conciliation Act,
1996 (26 of 1996) shall apply as if the proceedings for arbitration or conciliation were
referred for settlement under the provisions of that Act;
(b) to Lok Adalat, the Court shall refer the same to the Lok Adalat in accordance with the
provisions of sub-section (1) of Section 20 of the Legal Services Authority Act, 1987 (39
of 1987) and all other provisions of that Act shall apply in respect of the dispute so
referred to the Lok Adalat;
(c) for judicial settlement, the Court shall refer the same to a suitable institution or person
and such institution or person shall be deemed to be a Lok Adalat and all the provisions
of the Legal Services Authority Act, 1987 shall apply as if the dispute were referred to a
Lok Adalat under the provisions of that Act;
(d) for mediation, the Court shall effect a compromise between the parties and shall follow
such procedure as may be prescribed.”

Order 10 Rule 1 CPC : Allied provision to Section 89 CPC- The following extracts from
Rules 1A, 1B, and 1C of Order X, CPC, which are related provisions that were included by the
same amending Act, are provided:--
Order 10 Rule 1A- Rule 1A deals with the direction of the court to opt for any one mode of
alternative dispute resolution. In general terms, it states that it is in the power of the court to
instruct the parties to the lawsuit to choose one of the two methods of out-of-court settlement as
described in subsection (1) of Section 89 after recording the admissions and denials. Then, the
court will set the date of the parties’ presence before the forum or authority of their choice at
their request.
Order 10 Rule 1B- Rule 1B deals with the appearance before the conciliatory forum or
authorities. It states that the parties must appear before the forum or authority for conciliation
when a suit is referred under Rule 1A.
Order 10 Rule 1C- Rule 1C deals with the appearance before the court consequent to the failure
of efforts of conciliation. It states that if a lawsuit is referred under Rule 1A and the forum or
authority to which the matter has been referred, determines that, further action would not be
desirable in the interest of justice, it shall re-refer the case to the court and order the parties to
appear before the court on the date set by it. However, along with Section 89, these rules are also
highly criticized. Therefore, in order to correct this, in the year 2011, the Law Commission of
India through its 238th Report made suggestions for the amendment. It suggested the following
amendments to the above mentioned rules:
It is necessary to eliminate existing Rule 1B of Order 10 of the CPC. The following rules shall be
used in place of the current Rules 1A and 1C of Order 10:
● “1A. Direction of the court to opt for any one mode of alternative dispute resolution. –
At the stage of framing issues or the first hearing of the suit, the court shall direct the
parties to opt either mode of the settlement outside the court as specified in sub-section
(1) of section 89 and for this purpose may require the parties to be personally present and
in case of nonattendance without substantial cause, follow the procedure for compelling
the attendance of witness. The court shall fix the date of appearance before such forum
or authority or persons as may be opted by the parties or chosen by the court.”
● “1B Appearance before the court consequent upon the failure of efforts of conciliation .
– Where a suit is referred under rule 1A and the presiding officer of conciliation forum or
authority or the person to whom the matter has been referred is satisfied that it would not
be proper in the interest of justice to proceed with the matter further, in view of the stand
taken by the respective parties, it shall refer the case back to the court who shall direct the
parties to appear before it on the date fixed and proceed with the suit.”

Afcons Infrastructure Ltd. and Ors. v. Cherian Varkey Construction Co. (P) Ltd. (2010)
[Link]

Cases suitable for ADR- The Supreme Court further went on to list the matters that were
appropriate for ADR procedures and were currently ongoing in civil courts or special tribunals.
These situations are categorized into five categories:
1. All cases involving contracts, trade, and commerce;
2. Every case involving a tense relationship, such as marriage disputes;
3. All instances where maintaining the pre-existing relationship is necessary, such as
conflicts between neighbors and society members;
4. All tort cases, including those involving motor vehicle accidents; and
5. Every customer disagrees.
The Supreme Court made it clear that after classifying the cases as ‘suitable’ or ‘not suitable’ for
ADR processes, they are ‘illustrative’ and “can be subjected to just exceptions or additions by
the court/tribunal exercising its jurisdiction/discretion in referring a dispute/case to an ADR
process,” respectively.

Framing of issues- Basically, the framing of issues comes under order XIV. The order requires
some conditions and material which is inclusive mainly of three things.
● Firstly, the allegations made on oath by any person present on their behalf by the parties,
or statements made by the pleaders appearing for the parties,
● Secondly, the allegations made in arguments to interrogatories or in answers and,
● Thirdly, if documents are provided by the parties.
Therefore their importance has been realized competently in leading judgment in State of Gujarat
v. Jaipal Singh Jaswant Singh Engineers and Contractors 1993 where the judgment was passed
that “such framing of issues in the beginning instance would facilitate proof in support of the
claim the applicant to lead necessary reliefs and prayed pursuant thereto. In the second instance,
it will avail to lead the evidence if he desires to bring home the defense pleaded, and thereafter
the claimant gets an opportunity to confront and contradict the particular witness and in the third
instance, persuade the trial court to test and appreciate the same in proper perspective to enable it
to reach a just decision. It is hardly required to be told that issues are the backbone of a suit.
They are often the lamp-post to the proceedings which enlightens the parties, the appellate court
and even the trial court- as to what is the controversy, evidence and where the method of truth
and justice lies.” Issues are supposed to be clear and specific, indefinite and false issues create
irregularities in the administration of justice. Order X also provides that the court may examine
witnesses or inspect documents before framing issues, to revise the issues, to frame
supplementary issues or to look out issues that might appear to the court to be wrongly framed

Kinds of issues- If the respondent does no defense, recording and framing issued by the Court
does not arise. Even, in such a case, a Court needs an issue as much as the respondent does not
make defense at the first hearing of the suit need not frame and record. In Desi Kadri vs
Huzurabad Co-Operative Marketing Society Ltd, the court upheld that “Issues need not be
framed when there is no dispute with regard to material averments in the plaint.” According to
Rule 1(4) of Order XIV of C.P.C, there are basically two types of issues in the court :
● Issue of fact
● Issue of law

Unit-8, 9
What is Interim Order? The word “interim” according to the dictionary means “for the time
being”, “in the meantime”, “meanwhile”, “temporary”, “provisional’, “not final”, “intervening”.
When the word is used as an adjective, it means “temporary” or “provisional” and when it is
used as a noun it means “intervening”. Supplementarily, according to Section 2 (14) of the Civil
Procedure Code, 1908 the word “order” refers to the formal expression of any decision (not a
decree) of a civil court. Collectively, the words “interim order” means temporary order passed by
the court to maintain the “status quo” during the pendency of the suit and to ensure that, during
the course of the proceedings, no harm should be caused to the interest of the parties involved in
the suit and, before the final hearing, the subject matter of the suit shall not become abortive or a
fait accompli.

Interrogatories- One of the key elements for the proper functioning of rule of law is its
procedure. Fair trial is an essential part of a just society and justice is what every party desires. It
is important to ensure that each party to the suit is given equal opportunity for a fair trial and thus
is granted access to the relevant information and documents of the case. Civil Procedure Code
provides procedures that are to be followed in a Court for justice to be provided simply and
effectively. One such essential procedure provided under Civil Procedure Code is the discovery
by interrogatories. Interrogatories are the discovery tool for obtaining information of witnesses,
relevant documents, order of events, claims, defenses, etc. from the opposite party in the form of
questions. Interrogatories in a simplified way can be defined as written questions required to be
answered under the direction of the Court. When a civil suit is filed initiated with a complaint, a
summons is issued to the defendant. After the statement of the defendant is recorded, both the
parties are summoned to present for the first hearing for the settlement of the issues. After the
settlement based on insufficient information, if either party of the suit thinks that certain part of
the pleading or information regarding the case is inadequate, the party with the permission of the
Court can exercise the tool of interrogatories.

Order XI Rule 1 of Code of Civil Procedure Code, 1908 states:- In any suit the plaintiff or
defendant by leave of the Court may deliver interrogatories in writing for the examination of the
opposite parties or any one or more of such parties and such interrogatories when delivered shall
have a note at the foot thereof stating which of such interrogatories each of such persons is
required to answer. Provided that no party shall deliver more than one set of interrogatories to the
same party without an order for that purpose; Provided also that interrogatories which do not
relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they
might be admissible on the oral cross-examination of a witness.
The tool of interrogatories for the discovery of evidence plays a significant role as the parties are
entitled to know about the material facts and evidence of the case which is in knowledge of one
but maybe unknown to the opponent. The list of questions which is legally known as
interrogatories is presented by one party to the opposite one with a motive to gather sufficient
facts to either strengthen his case or destroy the case of the opponent. The information and the
facts which are relevant for the case are obligated to be answered by the opposite party, whereas
they would not be compelled to provide the irrelevant and immaterial facts.

Authority to Administer- The authority to carry out the interrogatories to the opposite party
stands with both the parties. The interrogatories can be presented from a plaintiff to the
defendant and vice versa. In exceptional cases interrogatories can be presented by someone on
behalf of the party, i.e. co-plaintiff can administer the interrogatories against the co-defendant
and vice versa. In a suit, the interrogatory may be issued to a third party when he becomes
relevant to the suit or against the principle on behalf of his agent. In cases like unsoundness,
lunacy/insanity, or minority, the interrogatories can be issued to the guardian or the next friend.

Objective- The objective behind the whole approach of interrogatories can be understood in
multiple ways. The direct objective behind administering interrogatory is to support and enhance
his case by obtaining the information from the opponent or indirectly by getting his admission
over the material fact which otherwise would have to be proved by oral or documented evidence
 and secondly to weaken and destroy the opponent’s case. Under the provisions for
interrogatories, each party has the right to issue interrogatories for the adverse party. These
provisions not only provide the parties with the right to question but also save their expenditure,
efforts, and from the time-consuming process of gathering information and evidence.

Security for Costs (Order 25)- It is pointed out in Order XXV Rule 1 that the court can order
For the plaintiff to provide security at any stage of the litigation to pay the costs incurred by the
Benefit of
Defendant
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:
1. The plaintiff lives outside of India, or there are two or more plaintiffs, and they all live
outside of India; and
2. 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 becomes successful from the side of the defendant, they may have difficulty in realizing
their costs from the plaintiff.

Commissions (Order 26)- Section 75 to 78 of the CPC deals with the power of the court to issue
a commission, which has been further detailed in Order 26 of the Code. The power of the court
to issue commissions can be exercised by the court on its discretion. The court establishes
complete justice between the parties. The court can exercise this right at the request of the parties
involved in the litigation or by a suo moto action. According to Section 75, a court may issue a
commission for any of the following purposes:-
1. to examine witnesses (Sections 76-78; Order 26 Rules 1-83),
2. to make local investigation (Rules 9 and 10);
3. to adjust accounts (Rules 11 and 12);
4. to make a partition (Rules 13 and 14);
5. to hold investigation (Rule 10-A);
6. to perform a ministerial act (Rule 10-B); or
7. to conduct sale (Rule 10-C)

Arrest before Judgment (Order 38)- Generally, the arrest of an accused (as the execution of
decree) took place after passing of the decree but in certain exceptional cases, an accused can be
arrested before passing of the judgment. The main purpose of this order is to prevent the
defendant from making any attempt to defeat or escape from any liability imposed by the court
on him and protect the interest of the plaintiff. Since the arrest of the defendant before passing
the judgment in favor of the plaintiff is an extreme action so it should be performed with due
care and caution. The court before passing such an order should ensure that if this order will not
be passed then there is a real danger of losing the defendant and his property as the defendant can
remove them from the jurisdiction of the court.
Cases where arrest before judgment is not allowed- An order to arrest the defendant before
judgment cannot be obtained in
1. any land or immovable property suit as specified in Article 16 (a) to (d) of the Code, or
2. to convert unsecured debt into secured debt to ensure easy enforcement of laws
Conditions necessary to be fulfilled- There are two conditions about which court should be
satisfied before passing this order-
1. The plaintiff’s lawsuit must be in good faith, and the cause of the lawsuit must be
ostensibly irrefutable, but the premise is that he must prove the accusation in the plaint,
2. The court must have reason to believe that unless this extraordinary power is exercised
there is a real danger that the defendant will remove himself or his property from the
scope of the court’s power.
The plaintiff can file an application for arrest at any time after the plaint is presented, even before
a summons is served to the defendant.

Attachment before Judgment (Order 38, Rule 5-13)- Similar to arrest before judgment, the
court in certain conditions may order attachment before judgment. The main purpose of
attachment before the judgment is to prevent the defendant from attempting to undermine,
execution of the decree against him. If at any stage of the litigation, the court satisfies through an
affidavit or other means that the defendant to prevent or delay the enforcement of an order that
may be directed against him,
1. Is about to remove or dispose of the whole or any part of his property. Or
2. Remove all or any part of its property from the local restrictions of the court’s
jurisdiction; the court may instruct the defendant within a time determined by the court to
provide a bond of the amount specified in the order and sufficient to satisfy the decree
and ask the defendant to appear and show the reason why it should not provide a
guarantee.
Unless the court directs otherwise, the plaintiff should specify the property which is to be
attached with its estimated value. The court can also order all or any part of the property to be
directly and conditionally attached. If an attachment order is issued that does not comply with
Rule 5(1), the attachment will be invalid. The court cannot order the attachment or production of
any agricultural products owned by agriculturists.

Temporary Injunctions: Order 39- An injunction is a remedy issued to a person in the form of
a court order that prohibits the person from engaging in or continuing to perform a specific act or
ordering him to perform a certain act. The main purpose of granting interim relief is to retain the
disputed property until the court determines the legal rights and conflicting requirements of the
parties.
Types of Injunction- Injunctions can be classified into various types-
A permanent injunction will forever restrict a party from performing a specified act, and a ruling
can only be granted on the merits of the case after the hearing of both parties is over. On the
 other hand, a temporary injunction restricts the parties temporarily from not performing specified
actions and can only be approved before the litigation or until a further court order is dealt with.
Injunctions will be preventive if they prevent, prohibit or restrict someone from doing
Arrest something; or mandatory when they force or order someone to do something.
before An ad interim injunction order is granted without a final decision on the injunction order and
Judgement
remains effective until the application is processed. Usually, an interim injunction is granted
Attachment while finally deciding the main application and the injunction will continue until the litigation is
before
dealt with.
Judgement
When a Temporary Injunction may be Passed? The temporary injunction may be granted by the
court in the following cases-
1. If any property in dispute in the litigation is in danger of being wasted, damaged, or
transferred by either party in the litigation, or is in danger of being wrongly sold as a
result of the execution of the law; or
2. The defendant threatens or intends to remove or dispose of his property to defraud his
creditors or
3. The defendant threatens to dispose of the plaintiff or otherwise harm the plaintiff with
respect to any property disputed in the lawsuit, or
4. The defendant is about to breach the contract or any other form of injury; or
5. The court considers that it is in the interest of justice.
Requirements for Temporary Injunctions- The case of Dalpat Kumar And Another v. Pralhad
Singh And Others (1991) has settled the three main requirements for granting a temporary
injunction, they are:
1. Prima Facie Case- A suit consists of a seriously disputed question. The facts in those
questions encourage the probability of entitlement to relief for the plaintiff or the
defendant. A prima facie case does not mean that the plaintiff or the defendant come up
with an irrefutable argument that will in all probability succeed in a trial. It only means
that the case they build for their injunction must be meritorious enough, not to be rejected
instantly.
2. Irreparable Loss- If an irreparable loss were to be incurred by an individual with regards
damage
done (or the to the suit before his legal right is established in the trial, it would be a cause of grave
potential injustice. However, it must be noted that illustrations like frustration over a loss of
damage) something with sentimental value will not be regarded as irreparable damage. On the
can’t be
reversed or other hand, things that by nature can be remedied will be considered to be irreparable
corrected damage if the court were to have no fair or reasonable address. Very often an injury is
by paying irreparable where it is continuous and repeated or where it is remediable at law only by a
the other
party money multiplicity of suits. Sometimes, the term irreparable damage refers to the difficulty of
measuring the amount of damages inflicted. However, a mere difficulty in proving injury
does not establish irreparable injury.
 proper 3. Balance of convenience- The court needs to compare the case of parties, comparative
balance mischief or inconvenience which is likely to sue from withholding the injunction will be
b/w parties
greater than which is likely to arrive from granting it.

decay or
Interlocutory Orders: Order 39- Rule 6 of Order 39 authorizes the court to order, in certain
get bad.
conditions, the sale and purchase of perishable goods. Rule 7 empowers courts to authorize any
protection person to enter into any land or building owned by any party for sampling, observation, or
and
preservatio experimentation for detention, preservation, or inspection of the property which is the subject
n of subject matter of the suit. Rule 8 requires courts, before making such an order, to notify the other party,
matter unless it appears that the purpose of making such an order will be defeated due to delay. If the
sale of land involved in the suit is liable to pay the government revenue, and the party that owns the land
movable neglects to pay the income, any other party in the litigation claiming an interest in the land can
prop
immediately pay for the property and get possession of that property after paying the income.
detention
authorise The court may award in the decree the amount so paid and interest on it to be paid against the
any person defaulter. If one party admits that he holds the money as a trustee for another party, then the court
to enter in
a building
can order him to deposit the money in the court.

authorise Receiver: Order 40- A receiver is an independent person appointed by the court between the
person to
take sample parties to the litigation. He can accept the funds or property in the litigation, whenever it is
believed by the court that it is unreasonable for either of the parties to hold property or funds.
The main object behind appointing a receiver is to preserve, protect, and manage the property of
the suit and safeguard the interests of both litigants involved in litigation, in the course of the
pendency of the litigation.

Unit- 10, 11
Suits by or against Government- Under the Civil Procedure Code, the subject of suits by or
against public officers in their official capacity has been recognized under Section 79, Section 80
and Order 27 of CPC.

(Section 79) This Section defines the concept of suits by or against the government:-
Whenever a case is filed against a government or if it is filed by the government, the plaintiff and
the defendant who will be named in the case will be as provided under:-
● Whenever the case is instituted by or against the central government, the Union of India
will be represented as the required plaintiff or defendant respectively.
● Whenever the suit is filed by or against the state government, the state government will
be required to act as the plaintiff or the defendant.
Section 79 lays down the procedure whereby the suits are brought by or against the government
but at the same time, it does not deal with the rights and liabilities enforceable by or against the
government body.
ART 298,299,300
Jurisdiction- Under Section 79, only the court within whose local limits, the cause of action
arose, has the jurisdiction to try the suit and otherwise it cannot.

Suit against Railway- If the railway is administered by the union of India or a State, then any
suit to enforce a claim against railway administration can be brought against the Union of India
or State, and this may not include making the railway administration a part of the suit. But on the
other hand whenever there is a requirement for a suit for freight for carrying goods, then such a
suit can be instituted by the Union of India.

Section 80- This section deals with the concept of Notice. According to this Section, there exists
no onus for the institution of a suit against the government without issuing a notice regarding the
same, this includes the state of Jammu and Kashmir. With respect to institution of a suit against a
public officer with respect to the act done by him in his official capacity, there is again a need for
issuance of notice regarding the same. Further, the notice should be served two months prior to
the institution of the suit and 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.
Nature and Object- The object laid down by this Section is that there should be an opportunity
conferred on the part of the Secretary of the State or the Public officer to reconsider his legal
position in order to make amends or settle down the claim if so advised. This can further be done
without litigation or afford restitution or without recourse to court of law. Whenever a statutory
notice is issued to public authorities, they are required to further take notice in all seriousness
and they are not required to sit over it and force the citizen to the redundancy of litigation.
Contents of the Notice- Notice under Section 80, is required to contain the following aspects:-
name, description, residence of the plaintiff, the cause of action and lastly the relief which the
plaintiff claims. Also, the notice is required to convey to its recipients, sufficient information to
enable him to consider the claim. The above-mentioned particulars should be given in such a
way that it enables the authorities to identify the person giving the notice.
Effect of Non-Compliance- Non-compliance with the requisites of this Section or any omission
in the plaint which is required would result in the rejection of the plaint under Order 7, Rule 11.
If the suit is against a public official and a private individual, and no notice is served on the
public officer, the plaint is not to be rejected but the suit is carried on with the name of the public
officer struck off.
Waiver of Notice- As the requirement of the notice is just procedural and not substantive, and as
it is for the benefit of the public officer or the government, it is open to government and public
officers to waive it. If the defendant wants to rely on the invalidity of the notice, it is for him to
raise a specific issue on the point; this was held in the case of Lalchand v. Union of India.
Requirement of notice (Section 80(1)- In ordinary suits, i.e. suits between two or more
individuals, there is no mandate to serve notice to the defendant by the plaintiff before instituting
a suit. However, Section 80 is an exception to this general rule followed in ordinary suits. This is
so because as per Section 80, the plaintiff can sue neither the government nor against a public
officer with regards to acts that are purported to be completed by the public officers working in
the official capacity. Such a suit by or against the government official can only be filed after the
expiration of the next two months of receiving the notice by the government or public official in
writing.
Section 80(2) is an exception to Section 80(1) of the Code as it states that when a suit is filed for
obtaining immediate relief either against the government or any public officer working in its
official capacity, then without serving notice on the opposite party, such suit shall be filed after
taking the permission of the court. According to Section 81 of the Code, when a suit is filed
against a public officer due to his conduct in his official capacity, then such public officer shall
neither be arrested nor will his property be attached. Furthermore, in case the court accepts that it
is impossible for the public officer to appear before the court, he shall be excluded from
presenting himself from the court. The execution of the decree has been explained under Section
82 of the Code.

Section 81- Section 81 of CPC is a privilege given to Public Officers. This is because it exempts
public officers from personally appearing in the Court when the case has been instituted against
him. This exception can only be availed if the Court is satisfied that the officer is working at his
official duty linked to public service. Furthermore, u/s 81, if any suit has been instituted against a
public officer for any act committed during his official duty, he is granted protection from being
arrested and also from attaching his property unless a decree is executed.

Section 82- Furthermore, even if a decree has been passed against the Union of India/ State/
Public officer, it will not be executed unless it has remained unsatisfied for 3 months from the
date of the passing of the decree. This period of 3 months is merely to allow the government or
the public officer to fulfill the specifications of the decree and rectify or amend their mistakes.

Order XXVII
1. Suits by or against the government- It should be noted that in any suit by or against the
government, the plaint or the written statement should be signed by such a person, as the
government by general or special order, appointed on this behalf.
Government pleader is an agent under the order 27 of CPC. The government pleader acts
as an agent for receiving processes issued against the government. Also he is the only
person to intimate the court that he is representing the government and no stamped power
of attorney or vakalatnama is required for the same.
 2. Attendance of a person being able to answer the questions related to suits against the
government- The court may, in any case where the government pleader is not
accompanied by a person on the part of the government and if he is able to answer the
questions relating to suit, the court may direct the attendance of that person .

Who is an indigent person? As soon as a civil suit is filed in the court, the plaintiff(s), at the
time of filing their plaint, are required to submit the requisite court fees as directed by the Court
Fees Act, 1870. However, Order XXXIII of the Code of Civil Procedure saves indigent persons
by way of discharging them from the liability to pay the required court fees. It then allows such
individuals to institute the suit in forma pauperis which is subject to some conditions as
postulated under the Rule 1 of Order XXXIII of CPC.
Inquiry into the means of an indigent person- Rule 1A of Order 33 states that the Chief
Ministerial Officer of the court has the authority to do an inquiry. The inquiry is conducted in the
first instance to know if an applicant is an indigent person or not. It is upon the discretion of the
court whether to accept the report submitted by such an officer or make an inquiry.
Procedure to file a suit as an indigent person- Before filing a suit as an indigent person begins, it
is important to add all the relevant contents in the application seeking permission to be an
indigent person [Rule 2]. As per Rule 2 of Order XXXIII, the application must include the
particulars similar to what is mentioned in the plaint and all movable or immovable properties of
the indigent person/applicant along with its estimated value.
The indigent person/applicant shall himself in person present the application before the court. In
case, such a person is exempted from appearing in the court, an authorized agent may present the
application on his behalf. In certain circumstances where there are two or more plaintiffs, the
application can be presented by any of them. [Rule 3]. The suit begins as soon as the application
to sue as an indigent person is duly presented before the court. Subsequently, the indigent
person/applicant is examined by the court. However, if the applicant is being represented by his
agent, then in such a case, the court may examine the applicant by the commission [Rule 4].
Rejection of application- As per Rule 5 of Order XXXIII of CPC, the court will prima facie
reject an application seeking permission to sue as an indigent person in the following cases:
1. In case when the application is not framed and presented in the prescribed manner. Here,
the term ‘prescribed manner’ implies that the application must abide by Rule 2 and Rule
3 of Order XXXIII. Rule 2 and Rule 3 deal with the contents of the application and its
presentation respectively.
2. The application can be rejected by the court in case the applicant is not an indigent
person.
3. The application can be rejected by the court when the applicant has fraudulently disposed
of any property within two months before the presentation of the application. It can also
be rejected when the applicant dishonestly applies only with the motive of just seeking
permission from the court to sue as an indigent person.
4. The court possesses the power to reject the application filed by an indigent person in an
instance where there is no cause of action.
5. In case, where the applicant has entered into an agreement with any third party and such
agreement pertains to the subject matter of the suit wherein the other party (other than the
applicant) obtains interest, then, it is one of the reasons for rejection of the application. It
shows the applicant’s intention to defraud the court.
6. Rejection of application is done when the allegations indicate that the suit is barred by
any law.
7. Rejection of application is done in cases where any other individual enters into an
agreement with the applicant to help him financially in the litigation.
● The Hon’ble Supreme Court in ML Sethi v. RP Kapoor observed that the provisions of
Order 11 Rule 12 involving the discovery of documents would apply to proceedings
under Order XXXIII of the Code of Civil Procedure.
● In Dhanalakshmi v. Saraswathy case, the plaint was found to be undervalued. So, it was
returned for presentation in the court along with proper valuation and court fee. A time of
one month was granted for doing so and the plaintiff filed the plaint within the stipulated
period. Subsequently, the plaint was presented in the Sub-Court along with a petition
seeking leave to sue as indigent persons to which the court observed that though the
petition was filed under Order XXXIII Rule 1, one cannot say that the application filed
under Rule 2 seeking permission to file the suit as indigent persons might not be rejected
as provided in Rule 5 of Order XXXIII CPC. A similarity was drawn between Order
XXXIII Rule 5 CPC and Order VII Rule 11 CPC. While Order VII Rule 11 is used in the
rejection of plaint, Order XXXIII Rule 5 deals with the rejection of an application filed
for permission to sue as indigent persons.
● Order 33 Rule 6 provides that the court is required to issue a notice to both the opposite
party and the Government pleader. Following which a day is fixed on which evidence is
received. On such a day, the applicant presents in the form of proof about his indigency.
The opposite party or the Government Pleader can present their evidence opposing the
applicant’s indigency.
● Order 33 Rule 7 provides for the procedure to be followed at hearing of the application.
The court shall examine the witnesses (if any), produced by both the parties and hear
arguments on the application or evidence (if any) admitted by the court. Subsequently, the
court will either allow the application or reject it.
● Order 33 Rule 8 explains the procedure to be followed after the admission of the
application. The application after being admitted has to be numbered as well as
registered. Such an application will be considered as a plaint in a suit. Subsequently, such
a suit shall proceed in the same manner as an ordinary suit does.
● Order 33 Rule 9 states that the court has an option to revoke the permission granted to the
plaintiff to sue as an indigent person. The court can utilize this discretionary power on
 receiving the application by the defendant or by the government pleader, in the following
circumstances:
1. Where the applicant is guilty of vexatious or improper conduct in the course of the suit;
or
2. Where the applicant’s means are such that he will not continue to sue as an indigent
person; or
3. Where the applicant has entered into an agreement under which another person has
obtained an interest in the subject matter of the suit.
● The Kerala High Court in R. Jayaraja Menon v. Dr. Rajakrishnan And Anr., while
deciding upon an application concerning the withdrawal of permission to sue as an
indigent person observed that Rule 9 of Order 33 provides for a situation where the
plaintiff, who was initially permitted to sue as an indigent person, ceases to be an
indigent person after the suit is filed. In case a plaintiff ceases to be an indigent person,
the court shall compel him to pay the court fee that he would have paid if he had not been
allowed to sue as an indigent person. It is so plainly a part of an order under Rule 9 of
Code directing the plaintiff to pay the court fee that he would have paid if he had not
been allowed to file as an indigent person from the outset.
● Rule 9A of the Code provides that the court will assist the indigent person by assigning
him a pleader. A pleader is a person who is entitled to appear and plead on behalf of other
persons in the court.
Costs associated with the suit- Order XXXII Rule 16 of CPC states that the costs in the suit will
include the costs of an application to sue as an indigent person as well as the cost of inquiry into
indigency.
1. When an indigent person succeeds: According to Rule 10 of Order XXXIII, where the
plaintiff (indigent person) succeeds in the suit, the court shall calculate the amount of
court fees and costs and recover the same from the plaintiff in the manner as if he had not
been permitted to sue as an indigent person. In case the plaintiff (indigent person) fails to
pay the amount, then in such case, the amount shall be recoverable by any such party that
was ordered by the decree.
2. Where an indigent person fails: According to Rule 11 and Rule 11-A Order XXXIII
where the plaintiff (indigent person) fails or the permission granted to the indigent person
is withdrawn under Rule 9A, or where the suit is withdrawn or dismissed, the court shall
in such case either order him (plaintiff) or a co-plaintiff to pay court fees and costs in the
manner as if he had not been permitted to sue as an indigent person. Where the suit abates
on account of the death of a plaintiff, such court fees would be recovered from the estate
of the deceased plaintiff.
3. The Hon’ble Supreme Court in Union Bank of India v. Khader International
Construction, held that Order 33 CPC is an enabling provision that allows the indigent
person to file a suit without paying the court fee at the initial stage. In case the plaintiff
succeeds in the suit, the court calculates 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. However, if 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.
4. 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.
5. According to Rule 12 of Order XXXIII, the state government possesses the right to apply
to the court to pass an order concerning payment of court fee to be paid under Rule 10.
6. Rule 13 deals with cases where the state government shall be deemed to be a party to suit.
7. Rule 14 provides that the court shall recover the court fee by forwarding the order or
decree to the collector who shall then collect the fee in the manner as if it were an arrear
of land revenue.
8. In case if the application to sue as an indigent person is refused, he shall still possess the
right to file a suit in an ordinary manner. However, such a person shall be denied to file
an application of similar nature in respect of the same matter [Rule 15].
9. Rule 17 provides that any defendant (indigent person) who wishes to file a set-off or
counterclaim shall be permitted to do so.
10. Rule 18 states that apart from Order XXXIII of the Code, the state or the Central
Government may make additional provisions for free legal services in respect of indigent
persons.

Interpleader suits- When the plaintiff on behalf of the claimant filed a suit for choosing the
actual owner of the property then it is called an interpleader suit. When a Plaintiff is not in the
direct possession of the property or thing, he files a suit. Petitioner has the indirect possession of
the property. There is more than one defendant in this suit. Because in this suit more than one
defendant can file the suit for the claim of property. When the actual owner of the property dies
without transferring the property to anyone then the property transfer becomes the interpleader
suit. Other than that the plaintiff may file a suit for the movable or immovable property to deliver
the property to the defendant because more than one person has filed a suit for the claim of
property. Debt is required in this suit or some amount of money for the dispute which is between
two defendants. Defendants can claim some debt from another defendant of the property. Only
the plaintiff is the one who cannot claim any cost and is also ready to deliver the property to the
defendants. Interpleader is defined in Section 88 of the Civil Procedure Court.
Examples:-
1. Sanjeev has a 2 BHK flat in the co-operative colony. He has two wives. Because of some
diseases, he died. After his death, his wives claimed the property. The father of Sanjeev
filed a suit in the court to decide the actual owner of the property.
 2. Akhil has a 2 crores fixed deposit. He has two wives and both wives have 1 child. Both of
them claim the money for their child maintenance. The bank filed a suit in the court to
know the order related to the real owner of the money for the maintenance of the child.
Interpleader suit in C.P.C is defined in section 88 with order no XXXV. An interpleader suit
means if any person claims any property of her husband or her parents and in case the owner of
the property is dead without transferring the property, then the second owner has to claim the
property from the bank or authority. After claiming for such property the bank or the authority
has to file an interpleader suit in the court. Then the court will decide who will be the main
owner of the property. In an interpleader suit, there were many defendants to claim the property.
Plaintiff gets the monetary value for filing the suit in the court on behalf of the defendant. He is
not liable for any damage.
Procedure- The procedure to file an interpleader suit is given under Order 35 CPC. 1908. Order
35 Rule 1, 1908 provides that the interpleader must particularly mention in his plaint that,
(i) The plaintiff does not claim any interest in the subject matter of the dispute except the
costs and charges.
(ii) The claims that are mentioned by the defendants severally.
(iii) No collusion is observed between the plaintiff and any of the defendants.
Apart from the aforementioned claim, the interpleader can also mention other statements as well.
● Order 35, Rule 2 of CPC, 1908, gives the court discretionary power whereby if a thing is
claimed and it is capable of being paid into the court, then, the plaintiff has to deposit
such an amount or thing before the court. In case, such a thing is a property, then the
property shall be placed in court.
● Order 35, Rule 3 of CPC, 1908 provides that in an interpleader suit if any of the
defendants sue the plaintiff with regards to the subject matter of the suit, then in such
case, the court where the suit is instituted against the plaintiff is pending, will stay the
proceedings in that suit as against the plaintiff.
● Order 35, Rule 4 of CPC, 1908 gives the court discretionary power to declare at the first
hearing itself, the fact that the plaintiff is discharged from all liabilities and award the
plaintiff his costs and dismiss him from the suit. But, in case the court believes that to
uphold justice, propriety, and convenience, the inclusion of all parties (plaintiff and
defendant) to the suit be retained, then, the court in such will not discharge the plaintiff
till the final disposal of the suit.
● Order 35, Rule 5 of CPC, 1908 states that the agents, as well as the tenants, won’t be
permitted to file an interpleader suit against their principals or landlords respectively.

Decision Summary Suit- The summary suit is given under XXXVII of the Code of Civil Procedure,
passed 1908. It is used for effectively enforcing a right. Courts pass judgment without hearing the
without defense in a summary suit. This appears to be violative of the principle of natural justice Audi
hearing
defence alteram partem (let the other side be heard as well) but this procedure is only followed in limited
 cases. It is used in cases where the defendant has no defense and applies to limited subject
matters.
What is the object behind the summary suit? The object behind the summary suit are:
● To Ensure An Expeditious Hearing
● To Prevent Unreasonable Delay By The Defendant
● To Ensure The Defendant Doesn’t Have A Frivolous Defense
● To Assist Expeditious Disposal Of The Suit
Where can a summary suit be instituted? Summary suits can be instituted in Courts of Small
Causes, City Civil Courts, High Courts, and any court notified by the High Court. The High
Courts have the power to restrict, enlarge or vary the categories of suits brought under this order.
Order XXXVII Rule 1 Sub-rule 2 provides classes of suits where it can be instituted.
● Bills Of Exchange
to collect ● Hundies
● Promissory Notes
● Suit Where The Plaintiff Seeks Only To Recover A Debt
What is the procedure for a summary suit? Rules 2 and 3 of the Code provide the procedure of
summary suits. After the summons has been issued to the defendant, he is not entitled to defend
the summary suit unless he makes an appearance. If the defendant defaults, the plaintiff will be
entitled to an ex parte decree. If the defendant appears, he must apply for leave to defend within
10 days from the date of service of summons upon him. Leave will only be granted if his
affidavit discloses facts that may entitle him to defend.
After the institution of a summary suit, the defendant should be served a copy of the plaint and
summons in the prescribed form. The defendant has to make an appearance within 10 days of
service of summons. If the defendant makes an appearance, the plaintiff shall serve him a
summons for judgment. Then the defendant has to apply for leave to defend the suit. Leave may
be granted to him unconditionally or what the court deems fit. If the defendant doesn’t apply for
leave to defend, the plaintiff becomes entitled to judgment. If conditions on which leave was
granted did not comply the plaintiff becomes entitled to judgment again. Order XXXVII Rule 7
provides that the procedure in summary suits shall be the same as the procedure in ordinary suits.
How do courts interpret summary suits? The language of Order XXXVII is to be interpreted
liberally. The courts have interpreted it liberally in various judgments. The term “written
contracts” has been given the widest meaning possible to include an invoice, bills.

(Originating Summons) Friendly suits- A special type of suit namely a friendly suit is defined
under Section 90 of the CPC and Order 36 lays down its procedure. It is a special kind of suit
wherein the plaintiff and defendant do not approach the court and the plaintiff in such suits does
not present a complaint. The procedure used in ordinary civil litigation is different from that in
friendly suits. The parties in friendly suits are concerned about the decision on any question of
fact or law. For determining the question of law or question of fact, both parties agree in writing
whereby they state these questions similar to the manner a case is filed. The same is done to
obtain the opinion of the court. The court may decide the question if it is satisfied that such a
question is fit to be decided. Order 36 Rule 1-6 lays down the procedure for special cases or
friendly suits. According to Order 36 Rule 1, certain conditions are to be satisfied:-
1. The agreement must be duly executed between the plaintiff and defendant.
2. The case is fit to be decided.
3. Plaintiff and Defendant have a bonafide interest in the question so asked.

Public nuisances and other wrongful acts affecting the public- Section 91 deals with suits
concerning public nuisances and any other wrongful acts affecting the public. It states that in the
case when public nuisance or any wrongful act that is harming the public at large is observed,
then an Advocate General can file a suit for declaration and injunction shall be made. Even two
or more two persons can institute a suit against such nuisance even if no harm is caused to them
with the permission of the court.
Section 92 deals with suits instituted in the case of public charities. According to this provision,
if any express or constructive trust is created for public use having a religious or charitable
nature is likely to have been breached, or otherwise requires the direction of the court for the
purpose of administering the trust, then in such an Advocate General or two or more than two
persons possessing an interest in the trust can institute a suit before the principal civil court
having original jurisdiction or in any other court. The suit shall be filed to attain decree for
various reasons like; appointment of a new trustee, removal of any trustee, direction of accounts
and inquiries, settling scheme, or granting relief as mentioned in the section.

Unit -12
Judgment- The term Judgment is defined in Section 2(9) of the Code of Civil Procedure, 1908.
A judgment contains facts of the case, the issues involved, the evidence brought by the parties,
finding on issues (based on evidence and arguments). Every judgment shall include a summary
of the pleadings, issues, finding on each issue, ratio decidendi and the relief granted by the court.
A judge in the judgment always states the reasons for such a decision.

Essentials of judgment - Every judgment should contain -

● a concise statement of the case
● the points for determination
● the decision thereon, and
● the reasons for such decision

Pronouncement of a Judgment- The word pronouncement means to make an official public

announcement. Pronouncement of a judgment means that after the hearing is completed i.e. after
the Court has heard the pleadings of the parties, the judgment shall be announced by the Judges
in an open Court, either at once or at some future day, after providing due notice to the parties or
their learned counsels. If a judgment is not pronounced immediately then it must be pronounced
within 30 days from the date of the conclusion of hearing. However, sometimes it so happens
that due to exceptional and some extraordinary reasons like a bank holiday, strike or some other
situation it may be delivered within 60 days from the conclusion of the hearing. It is not
mandatory for a judge to read out the whole judgment and it would be enough if only the final
order is pronounced. The judge shall put the date on which the judgment was pronounced along
with his signature. Rule 2 Order XX of Code of Civil Procedure, 1908 provides a judge with the
right to pronounce the judgment which is already written but is not pronounced by his
predecessor.

Alteration of a Judgment- Once a judgment is dated and signed by the judge it can only be
altered or amended if:
● There are arithmetical or clerical errors. (clerical errors refer to the errors made by clerks
and arithmetical errors refer to errors made in numbers such as addition, subtraction,
multiplication and division).
● There are errors due to accidental slips or omissions (these errors take place when some
essential element is left unnoticed) (Section 152) on review (Section 114).

Unit -13
Decree- A decree is one of the most frequently heard terms in Civil Matters. The adjudication of
a court of law is divided into decree and orders. The term “decree” has been defined under
section 2(2) of the Code of Civil Procedure,1908. The decree is a formal expression of
adjudication by which the court determines the rights of parties regarding the matter in
controversy or dispute.
Essential elements of a Decree- The decree is a decision of the court. For any decision of the
court to be a decree, the following essential elements are required:
1. There must be an adjudication.
2. The adjudication should be done in a suit.
3. It must determine the rights of parties regarding the matter in dispute.
4. The determination of the right should be of conclusive nature.
5. There must be a formal expression of such adjudication.

Types of Decree- The Code of Civil Procedure recognises the following three types of decrees.
1. Preliminary Decree
2. Final decree
3. A partly preliminary and partly final decree
Preliminary Decree- A decree is stated as a preliminary decree when the rights of parties
regarding all or any of the matter in dispute are determined in the adjudication but it does not
dispose of the suit completely. The preliminary decree is only a prior stage. A preliminary decree
is passed by the courts mainly when the court has to adjudicate upon the rights of the parties and
then, it has put the matter on hold unless the final decree of that suit is passed As held in the
case of Mool Chand v. Director, Consolidation, a preliminary decree is only a stage to work out
the rights of parties until the matter is finally decided by the Court and adjudicated by a final
decree. The Supreme Court in the case of Shankar v. Chandrakant held that the preliminary
decree is a decree in which the rights and liabilities of parties are declared but the actual result is
left to be decided in further proceedings.
Can there be more than one preliminary decree? There is a conflict of opinion regarding this
question of whether there can be more than one preliminary decree in the same suit or not. Some
High Courts are of the view that there can be more than one preliminary decree while some of
the High Courts are against this view. The Supreme Court in the case of Phoolchand v. Gopal
Lal, held that nothing in the Code of Civil Procedure prohibits passing of more than one
preliminary decree if the circumstance requires or if required by the Court. But, it should be
noted that this decision was given by the Court regarding partition suits.

Final Decree- The final decree is a decree which disposes of a suit completely and settles all the
matter in dispute between the parties. The final decree does not leave any matter to be decided
further. It is considered as a final decree in the following ways.
1. When no appeal is filed against the decree within a prescribed time period.
2. Matter in the decree has been decided by the highest court.
3. When the decree passed by the court disposes of the suit completely.
Can there be more than one final decree? Ordinarily, in one suit there is one preliminary and one
final decree. In the case of Gulusam Bivi v. Ahamadasa Rowther, the Madras High Court in the
light of Order 20 Rule 12 and 18 stated that the code nowhere contemplates more than one
preliminary or final decree. In the case of Shankar v. Chandrakant, the Supreme Court finally
settled the conflict of opinion and stated that more than one final decree can be passed.

Partly preliminary and partly final decree- A decree passed under the Code of Civil
Procedure may be partly preliminary and partly final. This happens when some part of the decree
is a preliminary decree while the rest is a final decree.
Illustrations:- If there is a suit of possession of an immovable property along with the issue of
mesne profit, and the court is obliged.
1. Passes a decree deciding the possession of the property.
2. Directs for an enquiry of mesne profit.
The first part deciding the possession of the property is final while the part regarding the mesne
profit is preliminary.

Contents of A Decree- The decree shall follow the judgment, agree with it and bear:
● The number of the suit
● The names and description of the parties and their registered addresses
● The particulars of their claims
● The relief granted
 ● The amount of costs incurred within the suit, and by whom or out of what property and in
what portions are they paid
● The date on which the judgment was pronounced
● The signature of the judge

Deemed Decree- A decree shall be deemed to include the rejection of a plaint and any question
within Section 144 of Code of Civil Procedure,1908 but shall not include:
● any such sentence(adjudication) from which it appears that an appeal lies as an appeal
from an order, or
● any such order of discharge(dismissal) of default.

Drawing up of a Decree- Rule 6A Order XX of Code of Civil Procedure,1908 states that a

decree shall be drawn within 15 days of the judgment. An appeal can be favored or preferred
without filing a copy of a decree if it is not drawn within 15 days of the judgment.

Interest- In the general aspect, interest refers to the price paid for obtaining or any price received
for providing, money or goods in a credit transaction which is calculated as a fraction of the
amount or value of what was borrowed initially. Interest is the fraction of amount of money
which the Court asks the losing party to pay to the aggrieved party as the initial principal sum
was not paid on time or the expenses incurred by the winning party in filing the documents and
making necessary contracts and legal notices. In a legal sense, the term interest is defined in
Section 34 of the Code of Civil Procedure, 1908.
Award of Interest- The Court in the decree orders interest at a rate as the Court finds reasonable
and appropriate to be paid on the principal sum declared from the date of filing of the lawsuit to
the date of passing of the decree. The Court even allows further interest at a rate not exceeding
six percent per annum on the principal sum for any period prior to the institution of the suit from
the date of passing of the decree to the date of the payment or any such earlier date as the Court
finds appropriate and reasonable.
Division of Interest- According to the Code of Civil Procedure, 1908, the division of interest is
divided into three types:
● Pre-lite- It is the amount of interest which is accrued or received prior to the institution of
the suit on the principal sum. The rate of interest is at the discretion of the Court but if the
parties have decided a rate of interest the Court shall consider it.
● Pendente-lite- This interest is in addition to the pre-lite interest. This means it is the
additional interest on the principal sum declared by the court from the date of filing of the
suit to the date of passing the decree. The word means the pendency of a lawsuit in the
Court of law.
● Post-lite- This is the interest in addition to the pre-lite interest on principal sum and
pendente-lite interest on the principal sum. It should be added on the discretion of the
Court and should not exceed more than six percent per annum.
Rate of Interest- The rate of interest awarded by the Court from the date of the lawsuit to date of
the decree is 12% and is just, appropriate and reasonable and there is nothing to interfere.
However, in post-lite interest that is from the date of decree till realization of the amount, rate of
interest can be charged upto 6% p.a. In pendente-lite, the rate of interest is fixed between
9%-12%
Recording of Reasons- It is at the discretion of the judge to provide the rate of interest. If the
judge does not provide for the rate of interest or reduces or increases the rate then he has to state
the reason behind doing so in writing. The starting of the reasons by the judge for not providing
interest is essential so that no judge can make any arbitrary decisions. The providing of reasons
also depicts that the judge is fair with his decisions and is not biased towards any party.

Costs- In the general sense, the term cost means to incur a charge or to require payment of a
specified price. It simply means to calculate or estimate a price. The term cost is defined in
Section 35 of the Code of Civil Procedure, 1908. The primary objective of ordering costs is to
provide the litigant with the expenses incurred by him during the litigation. The provision of
providing costs is on the discretion of the court that it may grant order for payment of costs to the
winning party by the losing party subject to pay for the expenses incurred during the litigation
period or while drafting legal notices and contracts. This is a kind of remedy and it shall not be
treated as a reward for the winning party and punishment for the losing party. Granting of costs is
at the discretion of the Court and if the court refuses to grant cost then it should give reasons for
doing so in writing. The discretion is based upon facts and circumstances of the case and not by
chance.
Kinds of Costs- The Code of Civil Procedure provides for the following kinds of costs:
● General costs- The term general costs are defined in Section 35 of Code of Civil
Procedure,1908. General costs are the cost which is incurred by the litigants and depends
upon the Court’s discretion. The general rule is that the losing party pays the winning
party costs granted by the court. It is the amount which is not treated as a reward for the
winning party and a punishment for the losing party but as a remedy. The judge can even
refuse to grant costs but for that, a reason has to be stated in writing.
● Miscellaneous costs- The term miscellaneous in the literal sense is used as something
which is diverse in its characteristics and cannot be placed in any specific category.
Miscellaneous costs are defined in Order XX A of the Code of Civil Procedure, 1908.
These costs are also known as Specific Costs. They are granted under special
circumstances as mentioned in Rule1 of the Code of Civil Procedure,1908:
○ Expenditure on notices required to be issued under the law by parties.
○ Expenditure on notices not required to be issued under the law by parties.
○ Expenditure incurred on typing, writing, printing, etc. on the pleadings.
○ Charges paid by parties for inspection of documents.
○ Expenditures on witnesses even though not summoned to the court.
 ○ In case of appeals, expenses incurred by parties for obtaining any copies of the
pleadings, judgment, decree, etc.
● Compensatory costs- The term compensatory can be generally defined as to make up for
something, or to do something to correct a previous act. It means providing compensation
to the aggrieved party by the way of damages or rewards or as the Court deems fit.
Compensatory costs are defined in Section 35A of the Code of Civil Procedure,1908.
Compensatory costs are granted in the cases where the claims of the other party are false
or vexatious. Such costs are granted under two conditions, namely, firstly, the claim must
be false or vexatious. Secondly, objections must be made by the other party that the party
making the claim or defense had knowledge of the fact that such claim was false or
vexatious.
● Costs for causing delay- These are the costs which the parties are liable to pay in case of
default made on their part such as appearing late in the Court, not submitting the required
documents on the specified time, not paying the costs on time for which further fine has
been imposed. These are the costs which are paid due to carelessness on the part of the
parties. Costs for causing delay are defined in Section 35B of the Code of Civil
Procedure,1908. This section was introduced by the Amendment Act,1976. These are
costs which are imposed for causing the delay. It states that where a party did not take a
step which it should have under the code or obtained an adjournment as regards the same,
he will have to pay such costs to the other party so as to reimburse him for attending
Court on the designated date. Unless such costs are paid, the plaintiff shall not be allowed
to proceed further in his suit, if she should have paid the costs and defendant shall not be
allowed to proceed with the defense if he was liable to pay such costs. If however, the
party is unable to pay the costs due to circumstances beyond his control, the court may
extend the time.

Difference between decree and order

S. Grounds of Decree Order
No difference
1. Definition Under Section 2(2) of the CPC, a Under Section 2(14) of the
decree is the formal expression of an CPC, an order is the formal
adjudication which, so far as regards expression of any decision of
the Court expressing it, conclusively a civil court which is not a
determines the rights of the parties decree.
with regard to all or any of the
matters in controversy in the suit and
may be preliminary or final.
2. Finality A decree may be preliminary, final, or An order is always final.
partly preliminary and partly final.
 3. Appealability Usually, a decree is appealable until Most orders are not
and unless it is explicitly prohibited appealable, except those
by law. specified in Section 104 and
Order 43, Rule 1 of the CPC.
4. Institution A decree is passed in a suit instituted An order is passed in a suit
upon presenting a plaint. that may be instituted upon
the presentation of either a
plaint, an application, or a
petition.
5. Ascertainment A decree ascertains the substantive An order ascertains the
of parties’ rights and duties of the parties. procedural rights of the
rights parties.
6. Number of Usually, only one decree is passed in One or more orders may be
decrees/ a suit. passed in a suit.
orders

Unit -14, 15
Execution-[Link]
_chandra_law_CPC_PART_2.pdf

Stay of Execution (Order-21 Rule-26)- This rule states that if sufficient cause is shown and the
judgment-debtor provides security or complies with any conditions imposed on him, the
executing court may stay the execution of a decree for a reasonable time to allow the
judgment-debtor to apply to the court that issued the decree or to the appellate court for an order
to stay execution. The power of a transferee court to stay the execution of a decree is not the
same as the power of the court that issued the decree. A transferee court cannot grant a stay
based on inherent power. This Rule seems to apply to four different courts. The court to which
the order has been submitted for execution, the court that passed the injunction, the appellate
court that has authority over the decree, and the appellate court that has jurisdiction over the
execution of the stay order are the first four courts.
The principle of fair time specified in the clause only extends to the first court, not the other
courts. The clause only states that if adequate cause is shown, the said first court shall grant a
stay of execution for a limited period, and the object of this reasonable period is to allow a
judgment debtor (JD) to seek an injunction from one of the other three courts.

Questions to be determined by executing court. S 47-

1. Conditions: -
● All questions must arise between the parties to the suit or their representative.
● It must arise in the suit in which the decree was passed.
● It must relate to the execution, discharge or satisfaction of the decree.
● It must be determined by the execution court
Applicability of Section 47:- It does not apply where dispute arises between parties and his own
representative or between two persons who both represent the same party. ( Mohd. Osman Ali v.
Mohd. Kharim, 1995(2) CCC 408 A.P.)
Execution, discharge or satisfaction of decree-
● Whether a decree is executable?
● Whether the property is liable to be sold in execution of the decree?
● Whether a decree is fully satisfied?
● Whether a particular property is included or not in decree?
● Question regarding attachment, sale or delivery of property

Garnishee Orders- [Link]

Precepts under Section 46- Section 46 empowers the Court to issue a precept to any other Court
which would be competent to execute the decree to attach any property of the judgment-debtor
specified in the precept and lying within the Jurisdiction of the Court.
The attachment made by that Court in pursuance of the precept will continue for two months
unless that period is extended by the court issuing the precept or unless before the expiry of that
period the decree has been transferred from the original court to the executing court and the
decree-holder has made an application for an order for the sale of the property. After receiving
the precept, the Court shall proceed to attach the property in the manner prescribed in regard to
the attachment of property in execution of a decree.

Unit -16, 17
Appeal-[Link]
_law_CPC.pdf

Appeals by indigent person- Any person who is incapacitated to remit the fee required to file
the memorandum may file an appeal as an indignant person. If the court declines the application
of a person to appeal in this manner, it may necessitate the applicant to remit the required court
fee within a prescribed time-frame.

Appeals to the Supreme Court- Appeals to India’s highest jurisdictional body can be made if
the former considers the case to be appropriate for an appeal to the Supreme Court or when a
special leave is granted by the Supreme Court itself. Appeals can be filed to the Supreme court
by filing a petition with the court which enacted the decree, upon which the petition would be
heard and disposed of within a period of sixty days. Petitions submitted for this purpose must
state the grounds of appeal. Also, it must include a plea for the issuance of a certificate stating
that the case involves a substantial question of law which needs to be decided by the Supreme
Court. The opposite party will be provided with an opportunity for raising any objections against
the issue of such a certificate.
The petition would be disposed of if the applicant is denied the certificate. If accepted, the
appellant would be required to deposit the required security and costs within a prescribed
time-frame. After the applicant performs the above obligations, the court from whose decision an
appeal is preferred shall declare the appeal as admitted, an intimation of which will be addressed
to the respondent. Further to this, the jurisdictional body forwards a precise copy of the record
under seal and furnishes the copies of such papers in the suit.

Unit -18
Reference- Section 113 of Civil Procedure Code deals with the provision of reference. Under the
provision of Section 113, a lower or subordinate court can reach out to a higher court for the
doubt in order to avoid the misinterpretation of the law which is called reference. Parties through
an application can move the reference to the High court. The Lower Court can apply the
provision of reference suo-moto in case of any doubt with respect to any legal provision. The
lower court is not bound to refer to the High Court other than in case of validity of legal
provision. It helps the lower court to avoid commission of error while pronouncing the judgment.
The subordinate court can use its right to reference in the following situation:
1. In case of any question arising in the court at the time of entertaining the suit with respect
to the validity of any act, rules, order, ordinance etc.
2. Where the court has the opinion or feels that any provision of the law is invalid or not in
the power of court (“ultra-virus”).
3. The High Court or Supreme Court must have not made such a question on the provision
of law invalid.
4. The court feels that it is important to take the reference of the high court for ascertaining
the validity of the provisions mentioned in the law before disposal of any case.
There can be two types of doubts which need to be referred under this section.
1. In case, the doubt has arisen with respect to any Act or law, it is mandatory for the lower
court to take the reference or opinion from the High court.
2. However, in case the doubt has come up during proceedings, it is not mandatory for the
lower court to take the opinion of the High Court. The lower court can suo-moto refer to
the High Court.

Conditions for seeking reference- Order 46 of CPC mentions the procedure of making a
reference. In order to make a reference to High Court, subordinate court needs to satisfy the
condition mentioned in Order 46 of Civil Procedure Code which has been produced as follows:-
1. The suit or appeal must be pending before the court while making a reference and no
further appeal from the order of such suit or decree is lying before the court.
2. The question of the validity of provision of law must have arisen during the pendency of
the suit i.e. during the proceeding of the suit in the court.
3. When such doubt regarding the validity of the provision of law has arisen, the court must
have been entertaining the suit.
While making the reference, the district court can put the case on stay, or it can pass a contingent
order. The subordinate court, after taking into account the opinion of the high court where such
reference has been made, may pass order or decree.
There are two classes of the question of law on which the subordinate court may entertain
the doubt-
1. Questions related to the validity of any Act, Ordinance or Regulations.
2. Any other questions.
Under the second condition, reference is optional but in the first condition i.e., a question related
to any Act, Ordinance or Regulations, reference is obligatory. Reference is obligatory in such
condition when the following conditions are fulfilled:-
1. In order to dispose of the case, the decision of such a question is necessary.
2. The subordinate court seeking reference is of the view that the Act, Ordinance or
regulation is ultra vires.
3. There is no determination that such an Act is ultra vires either by the Supreme Court or
the High Court to which the court is subordinate to.
A reference can be made by the judge only in the case when the judge who is dealing with that
case has a reasonable doubt about it. When any matter is already decided by the High Court to
which the court seeking reference is subordinate to then it is not considered as a reasonable
question of doubt.

Who can apply for reference? The court of civil judicature can refer the case to the High Court
either on an application made by a party or suo moto. No reference can be made by a tribunal.

Powers and duty of the referring court- A reference can be made in a suit, appeal or execution
proceeding pending before the court only when there is a doubt of law. No reference can be made
on a hypothetical question or a point that may or may not arise in future. But, if the situation
arises it may be considered for reference.

Power and duty of the High Court- The High has consultative jurisdiction in this context.
When reference is sought from the High Court and while dealing with it the High Court is not
bound to decide only the question of law in doubt. To answer the question for which reference is
sought totally upon the discretion of the High Court as discussed under Order 46 of the Code.
The High Court may answer the question and send the case back to the referring court to dispose
of it in accordance with the law. It is also upon the discretion of the High Court to refuse to
answer the question and it has even power to quash it.

Effects of Reference- In the case of L.S Sherlekar v. D.L. Agarwal, it was held that when the
reference is sought from the High Court and the decree is confirmed if the High Court answers
the question in favor of the plaintiff. If the answer of the High Court is against him, the suit is
dismissed. Rule 3 of Order 46 states the provision that after hearing the parties if the High Court
desires, it shall decide the referred points and transmits a copy of its judgment to the subordinate
court which shall dispose of the case in reference to said decisions.

Review- Section 114 of Civil Procedure Code defines the provision of review. In case of review,
the party who is not happy or aggrieved with the order of the court can file an application for
review in the same court which has passed the decree. This provision has been made so as to
facilitate the court to review their own decree or judgment and rectify the same in case any error
has been made while passing the judgment. (Discovery of new evidence)
It was held in the case of Ram Baksh v. Rajeshwari Kunwar, AIR 1948 AII 213 that the option of
review is still there even if the appeal has been dismissed on any ground. Order 47 of the CPC
defines the procedure to be followed in case of review. In the following situation, the application
for review can be filed by the parties:-
1. The decree or judgment is appealable however, no appeal has been preferred under the
law.
2. In case of no provision for appeal has been mentioned in the law for certain decree or
judgment.
3. The Court of Small Causes has passed the decision.
The law defines certain grounds on which application for review can be filed:-
1. Where there are new discoveries of the facts, which were not in knowledge or could not
be produced at the time of passing of decree due to ignorance.
2. In case, the error is found on the face of the record and does not require the argument of
the entire case again. These errors are not related to wrong decisions made by the court.
3. Any other case, in which case the delusion of the court can be considered as sufficient
ground.
The Apex court in the case of S. Nagraj & Ors. V. State of Karnataka & Anr., 1993 Supp (4)
SCC 595 held that any other sufficient ground has an expanded meaning. An order passed in case
of misinterpretation of the true facts can be considered as sufficient ground.

Time limit: Article 124 of Limitation Act provided that once the decree or order is passed,
parties shall file the application within 30 days from the date of passing such decree. The decree
or order which is passed after review shall be final and binding to the parties. It is important to
note that the entertaining the application filed by parties for review is at the discretion of the
court. Court can either entertain or reject the application. In case, the court does not find any
sufficient ground to entertain an application, it can reject the same. As defined in the law, even
the Supreme Court can review its judgment under Article 137 of the constitution of India.

Object- Any human being can make a mistake or error and so do the judges. So, the procedure
of Review has been embedded in the legal system to correct the mistakes and prevent any
miscarriage of justice as held in the case of [Link] v. State of Karnataka. The review
application is not an appeal or revision made to the superior court, but it is a request to recall and
reconsider the decision made before the same court.

Circumstances when a review petition is maintainable- A review petition is maintainable

before the court under the following circumstances:
● When no appeal lies in the case- According to section 114 of the code, when no appeal
lies from an order or a decree then it can be reviewed by the Court. In the case of Ganeshi
Lal v. Seth Mool Chand, it was held that taking into consideration sub-clause(c) of
Section 114, the application of review against a decree passed by a Small Causes Court is
eligible. Even if an appeal is dismissed on the ground of being incompetent or
time-barred, the party can go for review procedure as held in the case of Ram Baksh v.
Rajeshwari Kunwar.
● When appeal lies in a case but not preferred- When the provision of appeal is available
but it is not preferred by the aggrieved party then also a review petition is maintainable.
As held in the case of Sitarama Sastry v. Sunderamma an application for review can be
presented before the court only till no appeal is preferred against that order. The court
cannot entertain an application for review when an appeal is already instituted before
making an application for review.

Reference from Small Causes Court- The court may review the judgment on a reference made
by the Small Causes Court.

Grounds of Review- There are certain grounds laid down under Rule 1 of Order 47 on which an
application made for the review of a judgment is maintainable:
● On the discovery of new and important matter or evidence- A court can review its
judgment when some new and important matter or evidence is discovered by the
applicant which couldn’t be produced or was not available at the time of passing the
decree.
● When the mistakes or errors are apparent on the face of the record- When there is an
apparent error on the face of record then the court may review its judgment or decree. As
decided in the case of Karutha Kritya v. R. Ramalinga Raju, the error includes an error of
fact as well as an error of law.
● Other sufficient reasons- The last ground for review is any sufficient reason. Any
sufficient ground considered for review by the court comes under this ground. It could be
any reason which the court feels sufficient to review its judgement in order to avoid a
miscarriage of justice. In the case of Bank of Bihar v. Mahabir Lal, the Supreme Court
laid down certain reasons which can be considered as a sufficient reason for review such
as- when there has been any misapprehension of the true state of circumstances, or when
the party has not been given fair chance to produce any statement or evidence, or no
 notice was sent to the party, or the court has failed to consider a material fact or evidence,
or the court has omitted any statutory provisions.

Revision- If we go to the literal meaning, “to revise” stands for “to look again” or “to look
repeatedly at” or “to go through a matter carefully and correct where necessary”. The High Court
has been empowered with the revisional jurisdiction under section 115 of the Code of Civil
Procedure,1908.

Object- The object behind empowering the High Court with revisional jurisdiction is to prevent
arbitrary illegal or irregular exercise of jurisdiction by the subordinate court. Under section 115
the High Court is empowered to keep an eye on the proceedings of subordinate courts that the
proceedings are being conducted in accordance with the law, under its jurisdiction for which it is
bound for and in furtherance of justice as held in the case of Major S.S Khanna v. Brig. F.J.
Dillion. But, the judges of the subordinate court have absolute jurisdiction to decide a case and
even when they have wrongfully decided a case, they do not commit any “jurisdictional error”.
With the power of revision, the High Court can correct the jurisdictional error when committed
by the subordinate court. The provision of revision provides an opportunity to the aggrieved
party to get their non-appealable orders rectified.

Conditions- Section 115 of the Code of Civil Procedure Code lays down all the conditions when
the High Court can exercise its revisional jurisdiction:
1. The case must be decided.
2. The revisional jurisdiction is exercised when no appeal lies in the case decided by the
subordinate court.
3. The subordinate court has decided such case by:-
● Exercise of jurisdiction which is not vested to that court by law., or
● It has failed to exercise the vested jurisdiction, or
● Illegal exercise of the vested power or with immaterial irregularity.
The High Court is not entitled to vary or reverse the order or decision of the subordinate court
unless such order is in favor of the party who has applied for revision. Also, the revisional
jurisdiction is not to be exercised if in that matter appeal lies to the High Court. So, by analyzing
section 115, we can observe that the revision is done mainly on jurisdictional errors by the
subordinate Court.

Can the power of Revision be exercised if an alternative remedy is available? The exercise
of revisional jurisdiction is upon the discretion of the court and the parties cannot claim it as a
right. In the leading case of Major. S.S. Khanna v. Brig. F.J. Dillion, it was held by the Supreme
Court that the court has to take into consideration several factors before exercising the revisional
jurisdiction. One of those that is considered is the availability of an alternative remedy. When an
alternative and efficacious remedy is available to the aggrieved party, then the court may not
exercise its revisional power under section 115 of the Code.

Unit -19
Process in Commercial Courts Division:-
● Section 2 (1) (C) defines the scope of the term ‘Commercial Disputes’ which includes but
it is not limited to disputes arising out of ordinary physical transactions of merchants,
bankers, but also includes of issues related to admiralty and maritime law, agreements of
franchise, license, joint ventures, shareholders, etc.
● Section 2 (1) (i) defines ‘specific value’ in relation to a commercial suit which means the
value of the subject matter of the disputes which is determined in accordance with
Section 12 of the act, the value shouldn’t be less than Rs. 3 lakhs.
Important Amendments were made to the act of 2015 by introducing the amendment act of
2018:-Title: Earlier it was ‘THE COMMERCIAL COURTS ACT, 2015’, after the amendment it
got amended to ‘THE COMMERCIAL COURTS, COMMERCIAL DIVISION AND
COMMERCIAL APPELLATE DIVISION OF HIGH COURTS (AMENDMENT) ACT, 2018’
Pecuniary Jurisdiction: Earlier the minimum limit was Rs.1 Crores, but it got reduced to Rs.3
lakhs.
Appointment of Judges: Before the amendment act, the state government was bound to appoint
judges for the commercial courts from the higher judicial services of the state with the
concurrence of the chief justice of the high court. And after the amendment act, states may
appoint non-bounded.

Section 12A talks about the Pre-Institution Mediation and Settlement:-

● Mediation is a process by which the parties attempt to resolve their disputes through
discussions and negotiations. Pre-Institution Mediation under S.12A of the act is
mandatory, suits filed violating it will be rejected.
● The commercial courts act was enacted in 2015 to facilitate disposal of commercial
disputes by establishing specialized commercial courts, commercial division and
commercial appellate division in the high court to adjudicate such disputes.
● The amendment act of 2018, made it mandatory for a party filing the suit to exhaust the
remedy of mediation prior to instituting the suit because it is an effective solution to
achieve speedy dispute resolution and reduce burden of courts.
● A suit which doesn’t contemplate any urgent interim relief under this act, shall not be
instituted unless the plaintiff exhausts the remedy of pre-institution mediation and the
procedures as may be prescribed by rules made by the central govt.
Patil Automation Pvt Ltd vs Rakheja Engineers Pvt Ltd: It was held that mediation is mandatory
before the institution before the commercial suit proceedings as per S.12A of the said act, if
section 12A is violated then the court will reject the plaint under Order VII Rule 11. The court
rejected the plaintiff even suo moto.
 Unit -20
Introduction: Limitation Act, 1963 was enacted on 5th October, 1963 and came into force on 1st
January, 1964. It is applicable to Suits, Appeals, Applications, and Petitions. The law of
limitation specifies the statutory time frame within which a person may initiate a legal
proceeding or a legal action can be brought. If a suit is filed after the expiry of the time
prescribed it will be barred by the Limitation. It means that a suit brought before the Court after
the expiry of the time within which a legal proceeding should’ve been initiated will be restricted.
Essential features of Limitation Act:
● It contains 32 sections & 137 articles.
● It prescribes the time-limit for filing suits, appeals & applications within which an
aggrieved person can approach the court for redress or justice.
● It is based on the following maxims:
● "Interest Reipublicae Ut Sit Finis Litium" : it is in the interest of State that there should
be an end to a litigation; &
● "Vigilantibus non dormientibus Jura subveniunt": the law will assist only those who are
vigilant with their rights and not those who sleep upon it.
Purpose: Its main objective is to provide a specific time frame within which a person can file a
suit in a court. If such laws are not enacted then it will lead to never ending litigation as the
person could file a suit for the cause of action which was done many years back.
Whether the Act is exhaustive? The Limitation Act is exhaustive with respect to all matters
expressly dealt in it. Ordinarily, the Act applies only to civil cases except in the matter expressly
and specifically provided for that purpose.
● It is procedural law. (unless there is a contrary intention manifested by express or
necessary implication of the legislation itself, procedural law is generally retrospective
law.)
● Operation of The 'Law of Limitation' is Retrospective as well as Prospective.
● It is the subject matter of concurrent list under the entry 13, list III of Indian Constitution.
● It only bars remedy but does not extinguish the right. It means the law of limitation bars
judicial remedy not extinguishing the right. (Exception: ‘Section 27 Extinguishment of
right to property’ of The Limitation Act)

(Section 3) Bar of Limitation:- Section 3 lays down the general rule that if any suit, appeal or
application is brought before the Court after the expiry of the prescribed time then the court shall
dismiss such suit, appeal or application as time-barred. The law of limitation only bars the
judicial remedy and does not extinguish the right. In other words, It means that the statute of
limitation prescribes only the period within which legal proceedings have to be initiated. It does
not restrict any period for setting up a defense to such actions. Hence, the original right to suit is
not barred. However, Section 27 is an exception to this rule.
(Section 4) Expiry of prescribed period when court is closed- When a court is closed on a
certain day and the period of limitation expires on that day, then any suit, appeal or application
shall be taken up to the Court on the day on which it reopens. This means that a party is
prevented not by his own fault but because of the Court being closed on that day. Section 4 of the
Limitation Act provides that when the period of limitation is prescribed for any suit, appeal or
application and such period expires on a day when the Court is closed, such suit, appeal or
application shall be instituted, preferred or made on the day on which the Court reopens. The
explanation to this section mentions that within the meaning of this Section a Court shall be
deemed to be closed on any day if during any part of the normal working of the Court it remains
closed on that day. For instance, if a Court reopens on 1st January and the time for filing the
appeal expires on 30th December (the day on which the Court remains closed) then the appeal
can be preferred on the 1st of January when the Court reopens.

(Section 5) Extension of Prescribed Period in Certain Cases- Condonation of delay means

that extension of time given in certain cases provided there is sufficient cause for such delay.
Section 5 talks about the extension of the prescribed period in certain cases. It provides that if the
appellant or the applicant satisfies the court that he had sufficient cause to not prefer the appeal
or application within that period, such appeal or application can be admitted after the prescribed
time. This Section further mentions that an application made under any of the provisions of
Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). The explanation states that in
ascertaining or computing the period prescribed when the applicant or appellant has been misled
by any order, practice or judgment of the High Court. It will be a sufficient cause within the
meaning of this section. However, If a party does not show any cogent ground for delay then the
application, suit or appeal will be rejected by the court. Sufficient cause means that there should
be adequate reasons or reasonable grounds for the court to believe that the applicant was
prevented from proceeding with the application in a Court of Law.

Unit -21, 22
What do you mean by Legal Disability?- 'The provisions of Sections 6, 7 & 8 deal with legal
disability under the Limitation Act. Sections 6 & 7 are applicable only to suits or application for
execution of decrees & not apply to appeal or suits to enforce rights of preemption.

Sec. 6: Legal Disability:- Where a person entitled to institute a suit or make an application for
the execution of a decree is, at the time from which the prescribed period is to be reckoned, a
minor or insane, or an idiot, he may institute the suit or make the application within the same
period after the disability has ceased, as would otherwise have been allowed from the time
specified there for in the third column of the Schedule. For the purposes of this section, 'minor'
includes a child in the womb.
Note: Limitation begins to run from the date of accrual of cause of action. But section 6 of the
Limitation Act is one of the exceptions to this general rule. Under these exceptional
circumstances, the period of limitation does not run from the date of actual cause of action.

Sometimes a situation arises when one of the several persons jointly entitled to institute a
suit or to execute a decree is under disability- In this connection Section 7 (Disability of one
of several persons) of Act says that if one of the several persons jointly entitled to institute a suit
or make an application for the execution of a decree, is under any such disability (insane person,
minor & idiot) and a discharge can be given without the concurrence of such person, the time
will run against all of them. However, if such discharge cannot be given, time will not run as
against any of them until one of them becomes capable of giving such discharge without the
concurrence of the other or until the disability has ceased.

Section 8 (Special exceptions) of limitation act may be called the proviso to sections 6 & 7. The
1st part of Section 8 lays down that suits for pre-emption are not governed by Sections 6 & 7 of
the Act and inspite of the disability, they must be proceeded with and no extension of time will
be given on account of the disability of the plaintiff. The 2nd portion of the section says that a
person under disability may sue after the cessation of the disability within the same period as he
would otherwise have been allowed under the schedule but in no case can the period be extended
to anything beyond 3 years from the cessation of the disability.

Sec. 9 (Continuous running of time) of the Limitation Act, 1963 which states that, once time
begins to run no subsequent disability or inability can stop to institute a suit or make an
application. Only exception to this section is the provision by which the letter of administration
to the estate of the creditor suspends the running of limitation while the administration continues.
For example, if Ahmed's right to sue arises in 2002 and there is a limitation period of 3 years for
filing that suit. In 2002 he had no legal disability and did not file a suit. If he remained insane
from 2004 to 2006. He cannot claim extension of time for filing such a suit on the ground of his
being insane from 2004 to 2006. Because, Section 9 mandates that once a limitation starts to run
it cannot be suspended by any disability. Subsequent disability i.e., he remained insane from
2004 to 2006, have no use. The limitation period in this case will end after 3 years from the date
the cause of action arose which was 2002.
Note: section 9 is applicable only to suit and application. It does not apply to appeals.

Rules of limitation in case of trust are provided in S. 10 of the Limitation Act, 1963:- For the
purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or
charitable endowment shall be deemed to be property vested in trust for a specific purpose and
the manager of the property shall be deemed to be the trustee thereof.
Exclusion of Time- Section 12 to Section 15 deals with the exclusion of time under the
Limitation Act. Section 12 talks about the time that has to be excluded for computing time of
limitation in legal proceedings. Sub-section (1) says that the day on which the cause of action
arises that day shall be excluded while computing the period of limitation for any suit, appeal or
application, the day from which such period is to be reckoned.
The following time has to be excluded from computing the period of limitation:-
● The day on which the period of limitation for any suit, appeal or application has been
reckoned.
● In case of an appeal or an application for leave to appeal/revision/review of a judgment:
1. The day on which the judgment complained was pronounced.
2. Necessary time taken for obtaining a copy of the decree, sentence, order appealed from or
sought to be revised or reviewed.
● In case of decree or order is appealed from or sought to be revised or reviewed or an
application for leave to appeal from a decree:
1. Time requisite for obtaining a copy of the judgment
● In case of application to set aside an award:
2. Time requisite for obtaining a copy of the award.
Explanation to this Section states that in computing the time necessary for obtaining a copy of
the decree or order the time taken by the court to prepare the decree or order before an
application for a copy of the decree or order is made shall not be excluded.

Under Section 13, where an application for leave to sue or appeal as a pauper (indigent) has been
made and rejected, the time spent by the applicant in prosecuting in good faith shall be excluded.

Under Section 14, if a party is proceeding in good faith in a court without jurisdiction any suit or
application the time spent by the party should be prosecuting another civil proceeding with due
diligence and that prosecution shall be in good faith shall be excluded.

Under Section 15, the following time shall be excluded:

● The day of the issuance and withdrawal of the stay order or injunction.
● In cases where a previous consent or sanction of the government is required – the time
spent on obtaining the consent or sanction.
● In case of proceedings for winding up of a company- the time during which the receiver
or liquidator was appointed.
● In case of a suit for possession by a purchaser at a sale in execution of decree- the time
during which proceeding to set aside sale has been prosecuted.
● The time during which the defendant is absent from India and under territory outside
India under the administration of the Central Government.
Postponement of Limitation- Postponement of limitation means extending the period of
limitation. Section 16 to 23 of the Act deals with the postponement of limitation.
In the following cases the period of limitation will not begin to run:
● Under Section 16: Firstly, where a person having the right to sue or make an application
has died before the right accrues or right accrues only on the death of that person- the
period of limitation will be computed from the time when there is a legal representative
who is capable of instituting. Secondly, where a person against whom the right to sue or
make an application would have accrued dies or would have accrued on his death,
limitation will start when there will be a legal representative of the deceased.
● Under Section 17: Where the suit or application is based upon fraud, mistake or
concealment by fraud- the period of limitation will not start unless the plaintiff or
applicant has discovered the fraud, concealment or mistake.
● Under Section 18: In case of an acknowledgment of liability in respect of any property or
right-a-fresh period of limitation will be computed from the time acknowledgment was
signed.
● Under Section 19: where payment on account of a debt or of interest on legacy- a fresh
period of limitation will be computed when payment was made.
● Section 20: Section 20 is only a further explanation of section 18 and section 19. It says
that under a disability the expression ‘agent duly authorized’ will include the lawful
guardian, committee, manager or agent duly authorized by such guardian, committee or
manager.
● Section 21: Where a new plaintiff or defendant is added or substituted after the institution
of suit- the suit will be deemed to be instituted when he was so made the party. However,
if the new plaintiff or defendant was added due to a mistake in good faith and the Court is
satisfied, the suit shall be deemed to have been instituted on an earlier date.
● Under Section 22: Where there is a continuing breach of contract or tort – a fresh period
of limitation will start at the moment when the breach or tort continues.
● Under Section 23: In case of suits for compensation for acts not actionable without
special damage- limitation period will start from the time when the injury occurs.

(S.25) Acquisition of easements by prescription:- Under Section 25, where a property

belonging to the Government over which access and use of light or any way or watercourse or
the use of any water, have been peaceably and openly enjoyed as an easement and as of a right
by any person claiming title thereto, without any interruption for thirty years, the right to such
access and use of light or air, or way or waterway, or use of their easement shall be absolute and
indefeasible. In the case of a private property it is twenty years.

Exclusion in favor of Reversioner of Servient Tenement (Section 26)- According to Section

26 of the Limitation Act, the time during which an infant, an insane person or a married woman
is the owner of the servient tenement is excluded from the period during which a prescriptive
right is in course of acquisition.
The following illustration is appended to Section 27 of the previous Act (of 1908) which
corresponds to the Section 26 of the present Act (of 1963).
A sues for a declaration that he is entitled to a right of way over B’s land. A proves that he had
enjoyed the right for twenty-five years; but В shows that during ten of these years C. a Hindu
widow, had a life interest in the land, and on C’s death В came entitled to the land, and that
within two years after C’s death he contested A’s claim to the right. The suit must be dismissed,
as A, with reference to the provisions of this section, has only proved enjoyed for fifteen years.

Extinguishment of Right- General Rule that the law of limitation only bars the remedy but does
not bar the right itself. Section 27 is an exception to this rule. It talks about adverse possession.
Adverse possession means someone who is in the possession of another’s land for an extended
period of time can claim a legal title over it. In other words, the title of the property will vest
with the person who resides in or is in possession of the land or property for a long period. If the
rightful owner sleeps over his right, then the right of the owner will be extinguished and the
possessor of the property will confer a good title over it. Section 27 is not limited to physical
possession but also includes de jure possession. As per the wordings of this Section, it applies
and is limited only to suits for possession of the property.
Void Order: Limitation- An order that exceeds the jurisdiction of the court is void or voidable
and can be taken up in any proceeding in any court where the validity of the order comes into
question.