This expression implies that the decision must be one which is complete and final as regards

the court which passed it. The decree may conclusively determine the rights of the parties
although it may not completely dispose off the suit.

Chelam v Manak, RJ 284

Any order that decides only the question of limitation such an order will not be a decree
under section 2(2) of CPC because such and order does not determine conclusively
determines the rights of the parties with regard to all or any of the matters in controversy in
the suit

In another Judgment Ashwini Kumar v Shrimati Vidya

In this case an order dismissing an application under order 22 on the ground that the
adoption deed was not executed in accordance with the HAMA, 1956 does not amount to a
decree as defined in the court since it does not determine the question finally as to who is
the legal rep. of the deceased.

Rights of parties with regard to all or any part of the controversy

There must be any adjudication on the rights of the parties with regard to any of the matters
in controversy in the suit is a decree in the meaning of Section 2(2) of CPC and an appeal
lies against it under section 96.

Every suit is commenced by a plaint and when there is no civil suit there is no decree. In a
manner, the simpliciter comes only from the suit. Some proceedings commenced by an
application are statutory suits so that the decision is a decree.

Eg. The order on an application by the civil court can be considered as a decree

In a preliminary decree certain rights are conclusively determined and unless the … the
rights so determined shall be final and conclusive and cannot be questioned in the final
decree.

Suit for partition by metes and bounds (Preliminary decree) V Suit for possession and mesne
profits (Final Decree)

Can there be a decree which cannot be executed?

24/07/24

A preliminary decree is one which declares the rights and liabilities of the parties leaving the
actual result to be worked out in further proceedings then as a result of the further enquiries
conducted pursuant to the preliminary decree the rights of the parties are finally determined
and a decree is passed in accordance with such determination that is the final decree.

Both Final and Preliminary decree are not appealable. Only one is executable. Declaratory
degrees are not executable because they are merely a declaration.
Both the decrees are in the same suit an if the preliminary decree is set aside the final
decree is superseded.

S Balwant Lokhande v Chandrakant Shankar Lokhande AIR 1995 SC 1211

Final decree may be said to become final in two ways. First, when the time for appeal has
expired without an appeal being filed or the matter has been decided by the highest court.
Second, when as regards the court passing the decree, the same stands completely
disposed of.

It is in the latter sense that the word decree is used in sec 2 of CPC the appealability of the
decree will not affect its character in the final decree. The final decree merely carries into
fulfilment the preliminary decree.

In another case Hasham Abbas Sayyad v Usman Abbas Sayyad AIR 2007 SC 1077
The SC in this case has held that preliminary decree declares the right of the parties
however in some cases the secree may be both preliminary and final. There can be …
A decree may be partly pre and partly final but what can be executed is a final decree and
not a preliminary decree unless the final decree is a part of the preliminary decree. Pre
decree is a decree within sec 2(2) of CPC but it is not capable of execution till a final decree
is passed.

Order XX enumerates the classes of suits in which preliminary decrees are passes but this is
not exhaustive and will not preclude the court from passing a decree in a suit not expressly
provided in the CPC. So a supplemental order determining the period for which the parties
are liable for mesne profits was held to be a preliminary decree.

Paramjeet Singh Patheja v ICDS Ltd. AIR 2009 SC 168

An award rendered under the Arbitration and Conciliation Act is a deemed decree only for
the purpose of enforcement under sec 36 of AC Act, 1996. The enforcement is done ny
takinng steps under CPC for realization of money for use of the words ‘as if’ in sec 36 of the
act demonstrates that it is a decree only by a legal fiction and the said legal fiction is created
only for the purpose of enforcement as decree cannot be extended beyond the purpose for
which it was created.

Puran Mahsi Yadav v Narbadeshwar Tripathi AIR 1998 All 260

The definition of decree provides that the declaration of a plaint shall be deemed to be a
decree such adjudication therefore is appealable as a decree.

*A plaint maybe returned for amend. Or for presentation to the proper court in either case the
decision regarding the plaint is an order as distinguished from a decree.

Balraj Taneja v Sunil Madan

What a judgement should contain is indicated in order 20 rule 4(2) that Judgments of other
Courts shall contain a concise statement of the case, the points for determination, the
decision thereon, and the reasons for such decision. It should be a self contained document
from which it should appear as to what were the facts of the case and what was the
controversy which was tried to be settled by the court… the process of reasoning by which
the court came to the conclusion…

Read Fardunji Mulla CPC

Islamic Academy of Education v State of Karnataka AIR 2003 SC 3724

A judgement, It is trite, is not to be read as a statute. The ratio decidendi of a judgement is
the reasoning that can be inferred only upon reading the same in its entirety. The ratio of a
case and principles and reasons on which it is based is distinct from the relief finally granted
or the manner adopted for its disposal. Answers given in judgement to the question is not the
ratio to a judgement. The answers to the questions are merely conclusions they have to be
interpreted in a case of doubt or dispute with the reasons assigned in support thereof in the
body of the judgement, wherefor, it would be essential to read the other paragraphs of the
judgement also. It is also permissible for this purpose to look for the pleadings of the parties.

Hierarchy of the Civil Courts

A court's power to decide and decree on a specific matter is known as its jurisdiction.

As far as adjudication is concerned DJ and ADJ are the same.

Jurisdiction- Original and Appellate

Territorial, Pecuniary, Subject Matter, Jurisdiction over foreign ruler- Jurisdictions

27/07/24

Generality of jurisdiction: Territoriality>Subject matter>Pecuniary (more to less general)

Place of suing- the word “Place” its context means place in India and the “immovable
property” referred to means immovable property in India and the courts referred to also
means courts in India. These provisions thus regulate the venue in India and apply to only
those places where the court is in force. They deal with matters of domestic … and deal with
matters of territorial jurisdiction … and matters within their cognisance and do not govern
claims against persons or things totally outside their jurisdiction.

This section 15 is used not merely to avoid overcrowding in the Higher courts but also for the
convenience of the parties and witnesses who may be examined by them.

The object of the section to require a suitor to bring his suit to the court of lowest grae
competent to try it is that the courts of higher grade shall not be overcrowded with suits. The
word competent as used in the section has reference to the jurisdiction of a court.
Jurisdiction means the extent of the authority of a court to administer justice not only with
reference to the subject matter of the suit but also to the local and pecuniary limits of its
jurisdiction. Thus the presiding small-cause court has no juris to try a suit in which the
amount exceeds the prescribed monetary value that is said to be its juris. As regards its
pecuniary limits. Nor can it try suits of specific performance of contracts or an injunction or
for a resolution of partnership this is called the jurisdiction of the court as regards its subject
matter.

When a suit triable by a court of lower is instituted in a higher court the latter court may

If a suit under this section ought to have been instituted in a munsif’s court and the
subordinate judge instead of returning a plaint tries it and passes the decree against the
defendant not withstanding an objection not taken by the def. … It is a case of irregularity,
not affecting the jurisdiction of the court within the meaning of section 99. The order made
under section 77 is addressed to the suitor and not the court .. is presented to the court of
the lowest juris. And try it again. [order 7 rule 11]

There might be a situation where a suit which ought to be tried at a higher court is tried at a
lower court. In this case the lower court may present the suit to the court of higher grade. If a
decree is passed by the lower grade court it will be passed without jurisdiction. It will be read
as a mere irregularity.

It is the plaintiff’s valuation which fixes the juris. and not the amount which may be found and
decreed by court. Thus, where in a suit of accounts where the plaintiff’s value has the claim
of 5000 which is the maximum pecuniary jurisdiction of the court and where the amount
found due exceeds 5000 the court has power to pass the decree for that amount and…
[Order 7 rule 10 may be invoked of section 99 irregularity is applied]

In furtherance to illustration 1 in Section 20

A and B decide that the courts at Madras will have jurisdiction in their contract. [parties
cannot confer jurisdiction on a court where there is none]- this is conferring jurisdiction

A and B decide in the contract that only the courts in Calcutta will have jurisdiction. [This can
be done]

Ouster v Confer

Winter v Way 1863 Vol 1 Mad HC page 200

De’souza v Coles 1868 vol 3 Mad HC
Modi Entertainment Network v WSG Cricket Pvt. Ltd. AIR 2003 SC-
It is a well settled principle that by agreement the parties cannot confer jurisdiction where
none exists on a court on which the CPC applies but this principle does not apply when the
parties agree to submit to the exclusive or non-exclusive jurisdiction of a foreign court,
indeed in such cases the English courts do permit invoking their juris. Thus it is clear that the
parties may agree to have their disputes resolved by a foreign court termed as neutral court
or court of choice creating exclusive or non-exclusive juris. In it.

Section 10 and 11: -

Deal aspects not only of trial but also the parties have to be diligent about the trial and
claims under CPC.
Section 10. Stay of suit.—No Court shall proceed with the trial of any suit in which the matter
in issue is also directly and substantially in issue in a previously instituted suit between the
same parties, or between parties under whom they or any of them claim litigating under the
same title where such suit is pending in the same or any other Court in 1 [India] have
jurisdiction to grant the relief claimed, or in any Court beyond the limits of 1 [India]
established or continued by 2 [the Central Government 3***.] and having like jurisdiction, or
before 4 [the Supreme Court].- Restrictive in nature

The present section provides that where a suit is instituted in a court to which the code
applies the court shall not proceed with the trial of the suit if:
The matter in issue is also directly and substantially in issue in a previously instituted suit
between the same parties.
The previously instituted is between parties under whom they or any of them claim litigating
under the same title where such suit is pending in the same or any other court in India or in
any Court beyond the limits of India established or continued by the Central Government
where the previously instituted suits is pending in any of the courts mentioned in section 10
such court is competent to grant relief claimed in the subsequent suit.

S Kumar v Sudhakaran AIR 2009 Ker 170

Where execution proceeding is pending in a previously inst. Suit and an appeal against the
… is also pending section 10 will have no application. Although pendency of appeal against
the decree can be treated as appeal against the suit but once the appeal is decided there
will be application of section 11.

Section 10- No Court shall proceed- means Stay

Section 11- No Court shall try- means Dismiss

In cases where the previous suit has already been decided there is no question of sec 10.
However, if the matter in court is related to the subsequent suit and is decided in the
previous suit the relieved party can claim res judicata because sec 10 a procedure and it
does not confer any substantive right upon parties.

National Institute of MH&NS v C Parmeshwar AIR 2005 SC 242

The object of underlying sec 10 is to prevent courts of concurrent jurisdiction from
simultaneously trying two parallel suits in respect to the same matter. The object of sec 10 is
to avoid two parallel trials for the same issues and to avoid two conflicting findings in suits
which are in issue directly and substantially similar in previously instituted suits. The object
of sec 10 is to protect a person from multiplicity of proceedings between the same parties.

Padam See v Lakhan See 1916 Vol 43 Cal 144

B residing in Calcutta has an agent A at Calicut employed to sell his goods there. A sues B
in Calicut blaming a balance due upon a balance account in respect of dealings between
and B. During the pendency of the suit in the Calicut court B institutes a suit against A in
Calcutta for an account and for damages caused by A’s alleged negligence. Decide.
Here the matter in issue in B’s suit is directly and substantially in issue in A’s suit furthermore
both of them are parties in same suit therefore the court in Calicut has jurisdiction competent
to grant relief to B therefore the Calcutta court must not proceed with B’s suit … because the
suit instituted prior in point of time should alone be proceeded.
S.D. Dhandepani v Branch Manager Indian Overseas Bank AIR 2002 Mad 442
The word suit is important for our purpose as per the provisions of Order 4 Rule 1 every suit
shall be instituted by presenting a plaint to the court or such officer as it appoints in its
behalf. Therefore the word suit ordinarily means instituted by a plaint.

National Institute of MH&NS v C Parmeshwar (again)

The language of section 10 suggests that it is referrable to a suit inst. In the civil court and it
cannot apply to proceedings of other nature inst. Under any other statute. The object of
section 10 is to prevent courts of concurrent juris. From simultaneously trying suits between
the same parties and the same matter.

Read the second case from course material.

N P Tripathi v Dayawanti Devi

Justify stay of suit under rent control statute for the eviction of a tenant on the ground that
the tenant has filed a suit for specific performance against the landlord on the basis of an
alleged agreement of sale on the disputed premises in favour of the tenant. The tenant
cannot rely on section 53A of the TPA 1882 by claiming adversary title that under the
agreement he continued in possession as a purchaser and not as a tenant.

Rajendra Singh v Manoj Kumar AIR 2010 MP 16

The plaintiff had filed a suit for declaration of title in respect of the property in dispute where
the defendant had denied the title. The plaintiff filed another suit for the ejectment of the
defendant under the MP Accommodation Control Act, 1961 wherein the defendant also
denied the title of the plaintiff. The question of title in the suit for ejectment is not directly or
substantially in issue but incidental and collateral because for getting a decree in ejectment
suit the plaintiff is not required to prove his title but only that he is the landlord within the
meaning of the act.

Jurisdiction with respect to the subject matter of a claim depends upon the allegations in the
plaint and not upon allegations in the written statement. The question of jurisdiction raised by
the defendant is a question that is virtually raised between the plaintiff and the court itself;
the plaintiff always invokes the jurisdiction of the court and the court decides whether it has
jurisdiction to decide the case. There is nothing in the CPC to show or suggest that if an
issue of jurisdiction has been raised … section 10 of CPC in subsequent suit unless he
withdraws or waves that objection. Application cannot be dismissed as premature on ground
that a copy of plaint was not produced or a written statement was not filed in instant suit.

National Institute of MH&NS v C Parmeshawar

Section 10 applies only in cases where the whole of the subject matter in both suits is
identical; the key words in section 10 are the matter in issue is directly and substantially in
issue in the previous instituted suit. The words directly and substantially in issue in contrast
to the words incidentally or collaterally in issue. Therefore, section 10 would apply only if
there is identity of matter in issue in both the suits meaning thereby that the whole of the
subject matter in both the proceedings is identical. To understand this the language used by
the Supreme Court in the above case is very significant. It has been stated that the words
used in section 10 are the words substantially and directly … It should be separately and in
contradistinction should be understood from incidentally and collaterally in issue. The above
statement made in the case of MH&NS was made by Justice Tapadia

SK Rungta & Co v Naval Kishore Devi Prasad AIR 1964 Cal 373
The mere fact that the first suit between Z and J as plaintiffs and W, X and Y as defendants,
and the second suit is between W as plaintiff and S, J and F (not party in first suit), will not
take the case out of the operation of this section if the other conditions of this section are
satisfied.

Absent- 03/08/24

05/08/24

In a later suit between the same parties or their privies in a competent court to try such a
subsequent suit in which the issue has been directly and substantially raised and decided in
the judgement and decree in the former suit, would operate as Res Judicata. Section 11
does not create any right or interest in the property but merely operates as a bar trying the
same issue once over. In other words it aims to prevent multiplicity of the proceedings and
accords finality to an issue which directly and substantially had arisen in the former suit
between the same parties or their privies decided and became final so that parties are not
vexed twice over. Vexatious litigation would be put to an end and the valuable time of the
court is saved. It is based on public policy as well as on private justice. Therefore, they
would apply to all judicial proceedings… it equally applies to quasi judicial proceedings of the
tribunal other than the civil courts. Res judicata is a fundamental doctrine of law that there
must be an end to litigation.

The finding

Res Judicata is a plea available in civil proceedings in accordance with section 11 of the
CPC. It is a doctrine applied to give finality to a list.

Escorts Farms v Commissioner, Kumaon Division

Res Judicata literally means the matter adjudged

Plea of Res Judicata is a restraint on the right of the plaintiff to have an adjudication of his
claim; the plea must be clearly established, more particularly where the bar sought.

Gulam Abbas v State of UP 1982 vol 1 SCC 71

Have been founded on consideration of high public policy to achieve two objects, mainly,
that there must be a finality to litigation and that the individual must not be harassed twice
over on account of the same litigation. Technical aspect of sec. 11

Lal Chand v Radha Kishan AIR 1977 SC 789

In a case under the Slum Area (Improvement and Clearance) Act 1956 the plaintiff in an
earlier round of litigation was allowed relief in respect of only a part of the claim by the
competent authority who were empowered under the act. In the second round of litigation
when the matter reached the SC it was held that the suit was barred not only under section
37A of the act but also by the principles of Res Judicata. Justice YV Chandrachud speaking
for the bench in this case observed as follows: “the fact that section 11 of the CPC cannot
apply on its terms, the earlier proceedings before competent authority not being a suit, is no
answer to the extension of the principle underlying that section to the instant case. Section
11, it is long settled, is not exhaustive and the principle which motivates that section can be
extended to cases which do not fall strictly within the letter of the law. The issues involved in
the two proceedings are identical, those issues arise as between the same parties and
thirdly, the issue now sought to be raised was decided finally by a competent quasi judicial
tribunal. The issue at hand is conceived in the larger public interest which requires that all
litigation must sooner rather than later, come to an end. The principle is also founded on
equity, justice, and good conscience which requires that a party which has once succeeded
on an issue should not be permitted to be harassed by a multiplicity of proceedings involving
determination of the same issue.

K. Ethirajan v Laxmi AIR 2003 SC 4295

The argument that the principle of Res Judicata cannot apply because in the previous suit
only a part of the property was involved when in the subsequent suit the whole property is
the subject matter, cannot be accepted. The principle of Res Judicata under the CPC is
attracted where issues are directly and substantially involved between the same parties if the
previous and subsequent suits are the same. Maybe in the previous suit only a part of the
property was involved whereas in the subsequent suit the whole property is the subject
matter.
Based on our discussion so far we can decide on the question that whether a subsequent
proceeding is barred by Res Judicata, it is necessary to examine the question with reference
to: 1) The form or a competence of the court 2) the party and the representative 3) matters in
issue 4) matters which ought to have been made ground for defence or attack in the former
suit 5) the final decision.

Jaswant Singh v Custodian of Evacuee Property 1985 Vol 3 SCC

Held in order that defence of Res Judicata may succeed it is necessary to not only to show
that the cause of action was not only the same but the plaintiff had the opportunity for getting
the relief which he is now seeking in the subsequent proceedings. The test is whether the
claim in the subsequent suit or proceeding is in fact founded upon the same cause of action
which was the foundation of the former suit or proceedings. The cause of action for a
proceeding has no relation whatsoever to the defence which may be set up nor does it
depend on the character of the relief prayed for by the plaintiff or the applicant. It refers
entirely to the ground set forth in the application as the case may be as the cause of action
or in other words, to the media upon which the plaintiff or the applicant ask the court to arrive
at a conclusion in his favour.

08/08/24

Section 11 of CPC contains the rule of conclusiveness of the judgement based upon the
maxim of Roman Jurisprudence “Interest Reipublicae Ut Sit Litium” which means that it
concerns the state that there be an end to lawsuits and partly on the maxim “Nemo debet
vexari pro una et eadem causa” meaning no man should be vexed twice for the same cause.
Moreover, public policy requires that there should be an end to litigation. The question
whether it is correct or erroneous has no bearing on the question whether it operates or does
not operate as Res Judicata otherwise every decision would be impugned as erroneous and
there would be no finality.
As far as the difference between Res Sub Judice and Res Judicata is concerned. While
Section 10 relates to Res Sub Judice i.e., matter which is pending at judicial adjudication.
Section 11 relates to Res Judicata i.

Whereas sec 10 bars the trial of a suit in which the matter directly and substantially in issue
is pending adjudication in a previous suit on the other hand section 11 bars the trial of a suit
on an issue which the matter directly and substantially in issue has already been adjudicated
upon in a former suit.
Further, the object of both the sections is similar, namely to protect the parties from being
vexed twice, for the trial of the same cause and to achieve the public policy that there should
be an end to litigation. Therefore, one of the objects of section 10 is to prevent competent
courts of concurrent jurisdiction of having to try parallel suits in respect of the same matter in
issue and thereby to pave the for the application of the rule of Res Judicata contained in the
next following section so what the court has really to see is if the decision of the matter
directly and substantially in issue in the former suit will or will not lead to the decision of the
matter directly and substantially in issue in the subsequent suit, and if it is satisfied that it
will, that it must stay the trial of the subsequent suit and await the decision of the former
suite.
The principle of Res Judicata is a species of the principle of estoppel as far as the Res
Judicata is concerned when a proceeding based on a particular cause of action has attained
finality the principle of Res Judicata shall fully apply. Res Judicata is sometimes treated as
part of the doctrine of estoppel but the two are essentially different. Estoppel is part of the
law of evidence and prevents a woman (which includes Man) from saying one thing one time
and the opposite thing at another time. While Res Judicata precludes a woman or man from
avowing the same thing in successive litigations.

Sita Ram v Amir Begum 1886 ILR Vol. 8 All 324

Perhaps the shortest way to describe the difference between the plea of RJ and Estoppel is
to say that while the former prohibits the court from entering into an enquiry at all as to a
matter already adjudicated upon, the latter prohibits a party after the enquiry has already
been entered upon from proving anything which would contradict his own previous
declaration or acts to the prejudice of another party who relying upon those declarations or
acts to the prejudice of another party has altered his position. In other words Res Judicata
prohibits an enquiry In Limine(at the beginning) whilst an estoppel is only a piece of
evidence.

Res Judicata and Order II Rule 2

Gujarat Electricity Board v Saurashtra Chemicals AIR 2004 Gujarat 83

Order 2 of the CPC deals with the frame of the suit and each plaintiff is supposed to include
the whole of the claim which the plaintiff is entitled to claim for the whole of the action.

Order 2 Rule 2 confers certain privileges in favour the plaintiff who brings the suit but …
for any of the reliefs which he could have prayed in the earlier suit. O2 R2 of the CPC is
divided into three sub rules and the scheme is based on the principle that the defendant may
not be and should not be vexed twice for one of the same causes of action. It is true that this
suit is not really a matter of substance but it simply deprives the plaintiff claiming his remedy
and does not vest any right in favour of the defendant. Therefore, in absence of permission
the defendant can positively make a grievance that he has been wrongly vexed again for the
same alleged wrong. The phraseology used in O2 R2 creates an implied bar.

10/08/24- absent

12/08/24

Doorga Persad v Doorga Konwari 1870 ILR Vol 4 Cal 190

A, a Hindu, dies leaving a widow and a brother, B. The widow sues B for recovery of certain
property alleging that it was the self acquired property of her husband, and that a will alleged
to have been executed by her husband and relied on by B is a forgery. B alleges that the
property was Joint Family property, and that on the death of A he became entitled thereto by
right of survivorship, but he does not claim any title to the property under the will. The court
finds that the property was the self acquired property of A, and decreases the widow’s claim.
Subsequently, B sues the widow to recover the same property from her, now claiming the
same as devisee under A’s will. The suit is barred by Res Judicata. B might and ought to
have set up the claim under the will as a ground of defence in the former suit. Then a plaintiff
claims an estate and the plaintiff being in defence resists that claim, he is bound to resist it
upon all the grounds that it is possible for him, according to his knowledge then to bring
forward.

Popat Kala v Bachu Rugnath AIR 1958 Bom 152 (Bombay HC)

One PK filed a suit for a declaration that certain lands belong exclusively to his father and
that he became entitled to them as his heir and prayed for an injunction restraining the
defendants from interfering with his possession. Exclusive title set up by the plaintiff.
Thereafter, PK filed a second suit claiming that he has acquired a specific title to the property
by adverse possession. This was a plea available to him when he filed the previous suit and
it was held that it was constructively Res Judicata.

Kameshwar Prasad v Rajkumari 1893 ILR 20 Cal 79

A lends rupees 50000 to a Hindu widow to a mortgage to her husband's property. The
creditor then surrenders the property to B, the reversionary heir of her husband, on B
agreeing to pay all her debts, A sues B to recover 50k by sale of the mortgage property. A
also ask for a personal decree against the widow but he does not ask for personal decree
against B. B is joined as a defendant on the ground… and after her death he sues B for the
balance of money due… (A asks for a balance…) alleging that B was personally liable to the
widow to pay her debts… B was at all personally liable to pay the debt
A alleging that B held certain lands from him under a lease had expired sues B to recover Rs
500 for use and occupation of the land by B after expiration of the lease. The defence says
that the lease is a subsisting lease, and the suit is dismissed on a finding to that effect. If A
files a subsequent suit for Rs 500 rent. Will not be barred by Res Judicata. A subsequent
suit by A to recover Rs 500 as rent payable under the lease is not barred by Res Judicata.

Mahomed Inbrahim v Sheik Hamja

A, alleging that he mortgaged certain lands to B with possession, sues B for redemption. The
suit was brought by him as a mortgagor. The mortgage is not proved, the suit is dismissed. A
then sues B for possession of the same lands as absolute owner thereof. Won’t be barred.

On the basis of the decisions of the aforesaid cases we can say that in order to attract the
bar under section 11 of the court under CPC. Not only the parties must be same, all the
parties under whom or any of them claim must be the same, but also they must litigate under
the same title and the matter in issue in both the suits must be directly and substantially the
same.

As far as claiming under the same title is concerned the parties in the subsequent suit must
have litigated under the same title under the former suit. The expression same title means
the same capacity.

Datatre v Math Bala

A verdict against a man suing in one capacity will not stop him when he sues in another
distinct capacity, and in fact, is a different person in law. Thus, where a suit is brought by a
person to recover possession from a stranger to a Math property claiming to be the heir of a
deceased Mohant but the the suit is dismissed on his failure to produce a certificate of
succession to prove his heirship but the suit is not barred to be the manager of the Math on
behalf of the Math.

Rukhmini Bai v Venkatesh 1907 Vol. 32 Bom p. 537

A executes a usufructuary mortgage of his prop. To B, and places B in the possession

thereof. At the proper time A tenders… and asks to be restored to possession. B refuses to
accept the tender on the ground that more is due to him to deliver possession of the property
to A. A sues B for redemption, and deposits Rs 500 in the court. The court finds that the
tender was proper and directs B to deliver possession to A. After entering into possession A
sues B to recover mesne profits from B from the deposit in court till the date of recovery of
possession. The suit is barred for A might and ought to have claimed mesne profits in the
previous suit. The parties are litigating under the same title as mortgagor and mortgagee.
The mortgage is not extinguished after the tender and deposit and B does not become a …
therefore it cannot be said that the suit against B is not as a trespasser but as a mortgagee.
Order I: -

This order deals with the joinder of parties and to a certain extent with the joinder of causes
of action. Order 2 Rule 3 deals exclusively with the joinder of causes of action. Rule 4 of this
order is to be read with Rule 1. There is a world of difference between the locus and the right
of impleadment. The two cannot be equated. A person having locus may not be denied
appearance but a person who is a necessary party cannot be denied impleadment. The
former is permissive and the latter is mandatory. Before going into the specificities of specific
rules it may be well to know the general rules relating to the joinder of parties and the causes
of action.

According to the CPC the essentials of a suit are:

1) Opposite parties
2) A subject in dispute
3) A cause of action
4) A demand of relief

All these essentials must concur in every suit properly framed.

Order 1 deals with the joinder of parties. Order 2 deals with the framing of suits.

Joinder of parties
Misjoinder of parties-
Non-joinder of parties

Misjoinder of Plaintiffs and causes of action: -

Where in a suit there are two or more plaintiffs and two or more causes of actions. The
plaintiffs should be jointly interested in all the causes of action. If the plaintiffs are not jointly
interested in all the causes of action the case is one of Misjoinder of plaintiffs and causes of
action.

Order 2 Rule 3 read with Order 1 Rule 1 forbids such a misjoinder. The objection on the
ground of misjoinder of plaintiffs and causes of action should be taken at the earliest
possible opportunity.

Misjoinder of Defendant: -

Where in a suit there are two or more defendants and two or more casues of action the suit
will be bad for misjoinder of defendants and causes of action. If different causes of action are
joined against different defendants separately. Such a misjoinder is technically called
multifariousness. The objection on the ground of multifariousness should be taken at the
earliest possible opportunity.
Non-Joinder of Parties: -

Where a person is a necessary party to a suit is not joined as a party to a suit the case is
one of Non-joinder. It must be remembered that a necessary party is one without whom no
order can be made effectively. A proper party is one in whose absence an effective order can
be made but whose presence is necessary for a complete and final decision at the question
involved in the proceedings.

The objection for non joinder should be made before the first hearing and the plaint may be
amended by adding the omitted party either as plaintiff or as defendant. However, it must be
borne in mind that no person can be added as a plaintiff though he may be added as
defendant without his consent. It can be said that under the present rule several persons
may join as plaintiffs as one suit though their causes of action be separate and distinct
provided that

1) The right to relief alleged to exist in them arises out of the same act or transaction or
series of acts or transactions and to the cases of such a character that if such
persons brought separate suits any common question of law or fact would arise. In
the case of Strout v Lawson [1898] Vol. 2 QB 44, It was held that both these
conditions must be fulfilled to enable two or more persons to join as plaintiffs in one
suit. The two conditions are not alternative. This case influenced CPC in Order 1
Rule 1.
2) Where a right to relief in respect of the same act or transaction is alleged to exist in
two or more persons severally they may join as plaintiffs in one suit or they may at
their option bring a separate suit.
3) If any one of them does not consent to join as plaintiff he may be joined in as
defendant. The proper course is to ask his consent to join as a plaintiff first and if he
refuses consent, to join him as a defendant but the suit should not be dismissed
merely because he has been joined in as defendant without being first called upon to
join in as defendant. In the case Ponnuswami v Rama Boyar AIR 1979 Mad It was
held that the right of specific performance under a contract for a sale of property
entered into by the plaintiff or others is not jeopardized only because the other
refused to join with the plaintiff as co-plaintiffs or even refuse to enforce their rights.

First hearing- Order 14 rule 1- When issues are framed

23/08/24

Govindanathan v Anjaneya AIR 1950 Mad 760

A Hindu dies leaving a widow, an adopted son, and a separate brother and the dispute
arises between the widow and the adopted son on the one hand and the brother on the other
as regards certain lands. In the dispute, the widow and the adopted son alleged that the
lands form a part of the estate of the deceased. The brother, on the other hand, alleges that
the land belongs to him. If the widow does not dispute the adoption, a suit may be brought
by her and the adopted son as co plaintiffs against the brother to recover property from him
as the plaintiffs are jointly interested in disproving the defendant’s title but where the
adoption is not admitted by the widow and she asks the court to decide the question of
adoption as between her and the adopted son, and praise that, if the adoption is proved, the
property may be delivered to the adopted son, or if not proved, to herself, a different situation
arises. In such a case it has been held by the Madras HC that a suit by the widow and the
adopted son as co-plaintiffs to recover the property from the brother is defective on ground
of misjoinder of plaintiffs for the plaintiffs having inter… claims. It cannot be said that the right
to relief exists jointly in them.

Rule 8: -

Rule 8 is an exception to the general rule that all persons interested in a suit ought to be
made parties thereto. The objection for which this provision is enacted is really to facilitate
the decision of question in which a large body of persons is interested, without recourse to
the ordinary procedure. In cases where the common right or interest of a community or
members of an association or large sections is involved, there will be insuperable practical
difficulty in the institution of suits under the ordinary procedure, where each individual has to
maintain an action by a separate suit. A representative suit is one which is filed by one or
more persons under this rule on behalf of themselves and others having the same interest or
a suit allowed to be defended by one or more persons on behalf of themselves and others
having the same interest.

The provisions of explanation 6 of section 11 apply to such a suit. However, if the suit is one
under order 1 rule 8 the provisions of rule 8 must be strictly complied with. This was held in
Kumarvelu v Ramaswamy AIR 1933 PC 183. Strictly complied with, otherwise the
subsequent suit will not be passed. The general rule of law is that in suits where one person
is allowed to represent others as defendant in a representative capacity, any decree passed
binds those others only with respect to the property of those others which he can in law
represent, and although the party on record Eo Nomine may be made personally liable, no
personal decree may be passed against the others. This is the principle to be applied in
cases brought under this suit.

The question about the extent of the binding nature of a decree in a representative suit came
up before a full bench of the Madras HC in Kodia Gounder v Velendi Gounder AIR 1955 Mad
281. The question has acquired importance after the insertion of the new sub rule 6 of rule 8
which lays down that a decree passed in a suit under this rule shall be binding on all persons
on whose behalf the suit is instituted or defended, as the case may be. In the instant case,
the plaintiffs as representatives of the ryots of A village filed a suit against the defendants
and on behalf of ryots of B villages for a declaration that the ryots of A village were entitled to
irrigate their lands through a particular

24/08/24- absent

28/08/24

sub rule 1 of O2 R2 deals with the claim of the plaintiff and allows him to relinquish it
before filing his claim. After the suit is filed, he cannot, by way of amendment, reduce
the value of his claim by abandoning a part of his claim with a view to get his plaint
returned for being presented in another court of lower pecuniary jurisdiction. Further,
the provisions of O2 R2 indicate that if a plaintiff is entitled to several reliefs, against
the defendant in respect of the same cause of action he cannot split up the claim so
as to omit one part of the claim and sue for the other. That is to say if the cause of
action is the same the plaintiff has to place all his claims before the court in one suit
as O2 R2 is based on the cardinal principle that the defendant shall not be vexed
twice for the same cause. One of the objects of O2 R2 is to avoid multiplicity of
petitions.

Prithviraj Singh v Dalit Kulkarni

O2 R2 does not bar it defends in respect of the same cause of action. They are
causes of action on the basis of which prev. suit was brought or filed does not form
foundation of subsequent suit and in earlier suit the plaintiff could not have claimed
relief which he sought in subsequent suit in that case the plaintiff's subsequent suit
would not be barred by O2 R2 of the CPC.

Alka Gupta v Narendra Kumar Gupta

Here the defendant did not contend that the suit was barred by O2 R2 of CPC and no
issue was framed as to weather the suit was barred by O2 R2 of CPC, but the trial
and appellate bench of HC presumed that the plea of Res Judicata would include a
plea of bar under O2 R2 of CPC. It was held by the SC that Res Judicata relates to the
plaintiffs duty to put forth all the grounds of attack in support of his claim whereas
O2 R2 of CPC requires the plaintiff to claim all reliefs flowing from the same cause of
action in a single suit. It was held that the two pleas are different and one will not
include the other, the dismissal by the HC under O2 R2 in the absence of any plea by
def. and any issue in that behalf was held as unsustainable.

Naba Kumar v Radhashyam AIR 1931 PC 229

Where the plaintiff obtained a decree for the conveyance to them of properties
purchased by a trustee, and then afterwards, sued mesne profits for the time the
trustee was in possession, their lordship said that the suit was barred under O2 R2
as the cause of action was same as under the previous suit, that is the right to have
the purchase declare a purchase for that. Similarly, SC in Bengal waterproof limited
vs Bombay Waterproof Manufacturing Co. , 1997 1 SCC 1999. It was held that before
the subsequent is barred by O2 R2 sub rule 3, it must be shown that the second suit
is based on the same cause of action and if the cause of action is same in both the
suits and if in the earlier suit the plaintiff had not sued for any of the reliefs available
to it on the basis of that cause of action, the reliefs which it had failed to press into
service in that suit cannot be subsequently prayed for except with the leave of the
court.

Generally stated cause of action means every fact which is necessary to establish to
support a right or obtain judgement. Another meaning is that COA means every fact
which will be necessary for the plaintiff to be proved (if traversed). The veey fact that
the suit is for specific performance is more than sufficient to presume that the
plaintiff has pleaded some of the essential facts bringing out the cause of action. If
that be so the application seeking amendment of the plaint, encorporating another
essential fact, cannot be said to be an attempt to bring out a cause of action which
was conspicuous by its absence in the plaint originally filed. In an amend. for a plaint
of a suit for specific performance can be granted taking into account the entirity of
the facts and circumstances relevant to the intention of the party concerned.

The plea of O2 R2 can be established only if the defendant files in evidence the
pleadings of the previous suit and thereby proves to the court the identity of the
causes of action as well as the identity of the parties.

Jagath Singh v Jeet Singh

It was held where the earlier suit was filed for permanent injunction restraining the
vendors of an agreement to sell, the subsequent suit for specific performance to sell
would not be barred by O2 R2 of the CPC. The COA in the suit for injunction different
from the one in the suit for Specific performance. Moreover, thr earlier suit fir
injunction was filed by the plaintiff in absence of knowledge in respect of sale
effected by the vendor and as such it cannot be said that the caus eof action to seek
specific performance was available to the plaintiff at the time of filing specifics suit.

The COA for the purpose of this rule means all the essential facts constituting the
right and its infringement. In other words a cause of action consists of all facts
which are essential for the plaintiff to alledge and establish, if denied or
controverted, for instance, the bundle of facts which taken with the law applicable to
them gives them a right some relief against the plaintiff. It may construe some act
done by D because ... no such COA can possibly accrue.

Mohammad Khalil Khan v Mahboob Ali Mian

The privy council summed up the principles underlying O2 R2. The correct test of
cases falling under O2 R2 whether the claim in the new suit is in fact founded upon a
COA distinct from that which was the foundation for the former suit.
COA means every fact which will be necessary for the plaintiff to prove if traversed
the right to the judgement.

... then the COAs are also different.

The bundle of facts constituting COA for partition and separate posession by metes
and bounds may not be identical for claim of mesne profits. There is no bar either
expressly or by necessary implication in filing. ...

The COAs in the two suits may be considered to be the same if in substance they are
identical. When the COA has no relation whatever to the defence that may be set up
by the defendant nor does it depend upon the character of the relief prayed for by the
plaintiff. It refers to the media upon which the plaintiff asks the court to arrive at a
conclusion ...

R 1 & 2 are aimed against the multiplicity of suits against the same cause of action.
The object of R2 is to use the language of R1 for further litigation. For that purpose
the rule provides that every suit shall include the whole of the claim which the
plaintiff is entitled to make in respect of the same cause of action. He is not entitled
to split his COA into parts and bring separate suits in respect of each part. If he
omits to sue in respect of, or intentionally relinquish any portion of his claim arising
from the same cause of action, he will be precluded from suing in respect of the
portion so omitted or relinquish, even though he states in his plaints that he intends
to bring the same suit for the portion omitted.

The ruled is based on the principle that the defendant shall not be vexed twice for the
same COA. Two conditions must satisfy in an order that the rule may appply, identity
of COA and Indentity of parties in both the suits. The burden is on the defendant to
establish that the subsequent suit was founded and for that purpose he must file a
copy of the plaint of the earlier suit.

Kathersa Rowther v Abdul Rahim

A sues B for Rs 200 as against the said claim, B claims to set off 200 being part of a
sum of rs 1200 alleged to be due to him by A but omits to counter claim by A the
balance of Rs 1000. B cannot afterwards sue A to recover Rs 1000.

This rule does not preclude second suit based on distinct cause of action. To make
the rule applicable the defendant must satisfy 3 conditions

1) The previous and second suit must arise out of the same COA

2) Both the suits must be between the same parties

3) The earlier suit must have been decided on merit.

Rule 3:-

Joinder of COAs. These two provisions 01R3 and... deals with ... also involves the
joinder of COAs

If a person is made a party in his suit becaude there is a COA against him and when
actions are joined, the parties are also joined. Where there is only one plaintiff and
only one defensant the rule says that the plaintiff may unite in the same suit several
causes of action against the same defendant provided, of course, that the
provisiosns of rule 4 & 5 of this order are not contravened. If the COA are so
disconnected that they cannot be conveniently tried together the court may order
separate trials under Rule 6.

Re, D Laxminarayana Chettiar

Ordinarily every cause of action must be a basis for a single suit but by reason of the
aforesaid rules subject to the provisions mentioned therein several COAs may be
united in one action. If a defendant executed two promissory notes in favour of a
plaintiff, ones who can be instituted for the recovery of the amount due under the
two promissory notes. So to, if several defendants jointly borrow money on different
promissory notes from a plaintiff, he can file one suit for recovery of the amounts
due to him from all the defendants jointly. In the same manner if the plaintiffs are
joined promisee(creditor) in respect of the same promisory notes from the same
defendant singly or same defendants jointly, one suit can be filed.

Aiyava v Vellaya 1911 ILR 34 Mad 55

X sells to Y two plots of land adjoining each other, one of which is claimed by A by
adverse posession and the other by B by adverse posession. A and B could not join
together as plaintiffs against X and Y, for the evidence of AP by A would not be
evidence of AP in favour of B and vice versa.

Where the defendants object to the frame of a suit on the ground that the suit is
multifarious but the objection is overruled and a decree is passed in favour of P and
D appeals on the ground that the suit ought to have been held multifarious. The
appelate court even if it finds it multifarious should not interfere unless the
misjoinder has affected the merits of the case. This is the effect of section 99, that
effects inter alia that no decree shall be reversed or substantially in appeal on
account of any misjoinder of parties or COAs where such misjoinder does not affect
the merits of the case.
Every case of multifariousness pre-supposes more than one COA hence where there
is only one COA there can be no multifariousness.

If the suit is bad for multifariousness can O2 R3 join causes of action in the same
suit?

No.

02/09/24

Kubra Jan v Ram Bali 1908 ILR 30 All 560

A, alleging that his brother B mortaged A's share in his father's property to C without
his knowledge and consent, and that C was in posession as mortgagee, sues B and
C for a declaration of title to his share of the property, and for posession of the share.
The suit is not bad for multifariousness, for there are not two COAs but only one
namely the infringement of A's right of ownership by B. The mortgage and
disposession are both acts evidencing the infringement of A's right.

Order 5

Order 5 has gone through drastic amendments... by the act of 2002 that the D has to
file a written statement from the date of service of summons.

In case the def. is not able to file the WS... the court is given a maximum discretion
to allow to file the WS within 90 days. Besides the court will have to record reasons
in writing for allowing the defendant to file the WS in the extended period. Under this
rule it is obligatory to issue summon to the def. unless the case falls within the
proviso. Failure to comply with such a direction would result in consequences set out
in .... the new proviso assumes that the defendant would along with summons be
served along with the copy of a plaint and the documents if any annexed thereto to
enable him to file his WS at the time of his appearance. It's true that the amended
R1O5 fixes a time limit for filing written statement. However, no penal consequences
is provided within the WS is not filed within the stipulated period. The object of
amendment is to expedite hearing of such matters and to avoid unnecessary
adjournment.

Read order 5, 6, 7, 8, 9

A V Purushottam v N K Nagaraj
It was held by the Karnataka HC that not withstanding the use of the word shall in
O5R1 and O8R1 it cannot be said that the provisions are mandatory. It is observed
that in para 8 "where the statute uses the word shall while laying down the duty it is
not conclusive on the question whether it is mandatory or directive in nature. In order
to find the true character of the provision of the law in question is to subserve and its
design and the context in which it is enacted. If the object of law is defeated with the
non-compliance. It has to be regarded as complimentary. The procedural rule
ordinarily should not be construed as mandator."

Find out the 2002 amendment gazette notification and read its objects and reason-
HW

Salem Bar Association case

The rule enables a court where it is satisfied that there is reason to believe that the
defendant is keeping out of the way for the purpose of avoiding sercice or for any
other reason the summons cannot be served in the ordinary way, to order the
summons to be served by fixing a copy thereof in a conspicuos place of the court
house, and also on some conspicuous part of the house in which the def. is known
to have last resided or carried on business or personally worked for gain or in such
other manner as the court deems fit. If the court resorts to it all the conditions laid
down for it have to be fulfilled.

9/09/

It is not necessary to set out the whole or any part of the doc
unless the precise words are necessary. It is sufficient to state
the effect of the document as briefly as [Link] is not
necessary to allege any matter of facts which the law presumes
in one's favour, or as to which the burden of proof lies upon
your opponent.

Pleading should contain statement in concise form of material

facts on which the party relies for its cases or defence for eg. in
a divorce petition on the ground of cruelty vague and general
averments of cruelty would not constitute proper pleadings.
The main object of this rule is that the one party may know
what are the facts on which the other party relies in order that
he may be prepared to meet the case. A pleading must not sit
forth a public statute for a court is bound to take judicial notice
of it. It should set out only facts and the relief sought and not
the law or the particular section of the statute under which the
claim is made.
It is a bad pleading to allege merely that a right or a duty exists.
The facts must be set out which gives rise to the right or create
duty. Thus in a suit for damages for negligence it is not enough
for the plaintiff to state that "the defendant has been guilty of
negligence" without showing in what respect he was negligent
and how he was bound to use care to prevent injury to others.

Negligence means a breach of duty to take due care and

caution. The plaint therefore ought to state facts upon which
the supposed duty is founded and the duty to theb plaintiff
with the breach of which the defendant is charged.

In Ram Swarup v Bishan Narain

All necessary and material facts should be pleaded by the party
in support of the case set up by it. In the absence of pleadings
the evidence, if any, produced by the parties cannot be
considered. No party should be considered beyond its pleading.
The object and purpose of pleading is to enable the adversary
to know the case which it has to meet.