COMPREHENSIVE NOTES ON CIVIL PROCEDURE CODE, 1908

FOR END-TERM EXAMINATION

PART 1: DEFINITIONS - SECTION 2 OF CPC

Section 2(2): Decree

Definition: "Decree" means the formal expression of an adjudication which, so far as

regards the court expressing it, conclusively determines the rights of the parties with
regard to all or any of the matters in controversy in the suit.

Essential Elements of a Decree:

1. Formal Expression of Adjudication: Must be formally expressed and recorded

2. Adjudication by Court: There must be judicial determination

3. Given in a Suit: The adjudication must have been given in a suit (instituted by
plaint)

4. Determines Rights: Must conclusively determine the rights of parties

5. Matters in Controversy: Relates to matters actually in dispute

Types of Decrees:

A. Preliminary Decree: Declares rights of parties but requires further proceedings to

determine relief (e.g., partition suits, mortgage suits, administration suits)

B. Final Decree: Completely disposes of suit; determines all rights; nothing remains

C. Partly Preliminary and Partly Final: Some issues decided finally; others require further
proceedings

Deemed Decree (Section 2(2)):

1. Rejection of Plaint (Order VII Rule 11): When plaint rejected, deemed decree

2. Determination under Section 144: Any question determined under this section

What is NOT a Decree:

• Any adjudication from which an appeal lies as an appeal from order

• Any order of dismissal for default

Contents of Decree (Order XX Rule 6):

• Number and year of suit

 • Names and descriptions of parties

• Registered addresses of parties

• Particulars of claim

• Relief granted or other determination

• Order as to costs

• Date of decree (bears date of judgment pronouncement - Order XX Rule 7)

Case Law:

• Raj Lakshmi Dasi v. Banamali Sen: Decree must meet all essentials; formal
expression necessary

• Order XX Rule 6A: Decree must be drawn up within 15 days from judgment
pronouncement

Section 2(9): Judgment

Definition: "Judgment" means the statement given by the Judge on the grounds of a
decree or order.

Essential Characteristics:

1. Reasoning: Contains grounds/reasons for decision

2. Precedes Decree: Judgment comes before decree (Section 33)

3. Not Appealable Separately: Only decree/order can be appealed

4. Mandatory Reasons: Must explain judicial determination

Difference Between Judgment and Decree:

Aspect Judgment Decree

Definition Statement of grounds Formal expression of adjudication

Nature Reasoning document Operative/conclusive document

Appealability Not appealable Appealable

 Aspect Judgment Decree

Execution Not executable Executable as court decree

Timing Pronounced first Follows judgment

Requirement Reasons mandatory Formal requirements mandatory

Section 33: Judgment and Decree

"The Court, after the case has been heard, shall pronounce judgment, and on such
judgment a decree shall follow."

Case Law:

• Vivian Bose, J.: Judgment is reasoning; decree is conclusion

• Section 33 Mandate: Judge who heard case must pronounce judgment;

successor judge may pronounce only under Order XX Rule 2

Section 2(14): Order

Definition: "Order" means the formal expression of any decision of a Civil Court which
is not a decree.

Essential Features:

1. Decision of Court: Must be judicial decision

2. Not a Decree: Excludes matters covered by decree definition

3. Formal Expression: Must be formally recorded

4. May Originate from Suit or Application: Unlike decree (only from suit)

Examples of Orders:

• Order of attachment before judgment

• Order granting/refusing interim injunction

• Order under Section 151 CPC (inherent powers)

• Order rejecting application

• Order of dismissal for default (not decree)

Appealable vs. Non-Appealable Orders:

Specific orders appealable under Order 43 CPC (e.g., injunction orders, appointment of
receiver, setting aside dismissal for default)

Difference Between Decree and Order:

Decree Order

Arises only from suit May arise from suit or application

Conclusively determines rights May not be conclusive

Always appealable (unless barred) Only specifically enumerated orders appealable

Second appeal lies (on specified grounds) No second appeal

Section 2(1): Plaint

Definition: Not explicitly defined in CPC, but Section 26 and Order VII govern plaint.

Understanding: Plaint is the formal written statement of plaintiff's cause of action,

containing allegations and relief sought. It is the foundational document instituting a
civil suit.

Essential Contents of Plaint (Order VII Rule 1):

1. Court Name: Name of court in which suit instituted

2. Plaintiff's Details: Name, description, residence of plaintiff

3. Defendant's Details: Name, description, residence of defendant (as

ascertainable)

4. Minor/Unsound Mind Statement: If plaintiff/defendant is minor or of unsound

mind

5. Facts Constituting Cause of Action: When and where cause arose

6. Jurisdictional Facts: Facts showing court has jurisdiction

7. Relief Claimed: Specific relief plaintiff seeks

8. Set-off/Waiver Statement: If any portion of claim set off or waived

 9. Valuation: Value of subject-matter for jurisdiction and court fees

Verification (Order VI Rule 15):

Plaint must be verified by plaintiff/authorized person; states which averments are based
on personal knowledge, information, or belief

Section 2(16): Written Statement

Definition: Not explicitly defined, but understood as defendant's pleading under Order
VIII.

Written Statement is the reply filed by defendant addressing plaintiff's allegations in

plaint, containing admissions, denials, and defenses.

Essential Contents (Order VIII Rule 1):

1. Admissions: Which facts plaintiff alleges are admitted

2. Denials: Which facts are denied (must be specific, not evasive - Order VIII Rule 3,
4)

3. New Facts: Any new facts defendant alleges (defenses)

4. Legal Objections: Objections to maintainability, jurisdiction, limitation, etc.

5. Documents: All documents relied upon

Time Limit for Filing (Order VIII Rule 1):

Defendant shall file written statement within 30 days from service of summons; court
may extend by further 90 days (total maximum 120 days) if defendant shows sufficient
cause

Consequences of Non-Filing:

Court may pronounce judgment or make order against defendant (Order VIII Rule 10)

Evasive Denial (Order VIII Rule 4):

Where defendant denies allegation evasively/not specifically, court may regard it as

admitted

Section 2(11): Legal Representative

Definition: "Legal representative" means a person who in law represents the estate of a
deceased person, and includes any person who intermeddles with the estate of the
deceased.
Who Can be Legal Representative:

1. Executor: Person appointed by will to execute deceased's estate

2. Administrator: Person appointed by court to administer estate (when no will)

3. Heir: Person who inherits property of deceased

4. Intermeddler: Person who deals with deceased's estate without authority

Relevance:

When party to suit dies, legal representative may be substituted (Order XXII CPC)

Section 2(5): Foreign Court

Definition: "Foreign Court" means a court situated outside India and not established or
continued by the authority of the Central Government.

Characteristics:

• Court outside India's territorial jurisdiction

• Not established/continued by Central Government

• Example: Courts in UK, USA, Singapore, etc. (but not Indian consular courts
abroad if established by Central Government)

Section 2(6): Foreign Judgment

Definition: "Foreign Judgment" means the judgment of a foreign court.

Enforcement: Governed by Sections 13 and 14 CPC

Section 2(8): Signed

Definition: "Signed", save in the case of a judgment or decree, includes stamped.

Implication: Documents may be stamped instead of signed (except judgments/decrees

which must be signed)

Section 2(3): Decree Holder

Definition: "Decree-holder" means any person in whose favour a decree has been
passed or an order capable of execution has been made.
Rights of Decree Holder:

• Execute decree

• Transfer decree for execution (Section 39)

• Apply for attachment, sale, delivery, etc.

Section 2(10): Judgment-Debtor

Definition: "Judgment-debtor" means any person against whom a decree has been
passed or an order capable of execution has been made.

Obligations:

• Comply with decree

• Subject to execution proceedings if non-compliant

Section 2(12): Mesne Profits

Definition: "Mesne profits" means those profits which the person in wrongful
possession of such property actually received or might with ordinary diligence have
received therefrom, together with interest on such profits, but shall not include profits
due to improvements made by the person in wrongful possession.

Key Features:

1. Wrongful Possession: Must be wrongful (not rightful)

2. Actual Profits: Profits actually received

3. Potential Profits: Profits that could have been received with ordinary diligence

4. Interest: Includes interest on profits

5. Exclusion: Excludes profits from improvements made by wrongful possessor

Claim for Mesne Profits:

Can be claimed in suit for recovery of immovable property or in separate suit

PART 2: PECUNIARY JURISDICTION - SECTION 6 CPC

Section 6: Pecuniary Jurisdiction

Text of Section 6:
"Save in so far as is otherwise expressly provided, nothing herein contained shall
operate to give any Court jurisdiction over suits the value of which exceeds the
pecuniary limits (if any) of its ordinary original civil jurisdiction."

Meaning:

Pecuniary jurisdiction refers to the monetary limits within which a court is competent to
entertain and try a suit. No court can try suits beyond its prescribed pecuniary limits.

Understanding Pecuniary Jurisdiction:

Pecuniary jurisdiction is determined by valuation of subject-matter of suit as stated by

plaintiff in plaint (Section 15 read with Court Fees Act).

Hierarchy of Courts Based on Pecuniary Jurisdiction (varies by state):

Court Pecuniary Jurisdiction (Approximate)

Munsif Court/Civil Judge Junior Division Up to ₹50,000 to ₹2,00,000 (varies)

Civil Judge Senior Division Up to ₹10,00,000 (varies)

District Court Above limits of subordinate courts

High Court (Original Jurisdiction) Specified high-value suits (varies)

Determination of Value:

• Plaintiff states value in plaint

• Value includes principal claim + interest (if any)

• Court fees calculated on valuation

Important Principles:

1. Plaintiff's Valuation Binding: Court generally accepts plaintiff's valuation unless

shown to be incorrect

2. Objection to Valuation: Defendant can object; court must inquire and pass
appropriate order

3. Subsequent Change in Value: Change after institution doesn't affect jurisdiction

Case Law:
 • Section 15 Mandate: Every suit instituted in court of lowest grade competent to
try it

• Pecuniary Jurisdiction is Procedural: Suit filed in court without pecuniary

jurisdiction not void; should be transferred to proper court

PART 3: COURT TO TRY ALL CIVIL SUITS - SECTION 9 CPC

Section 9: Courts to Try All Civil Suits Unless Barred

Text of Section 9:

"The Courts shall (subject to the provisions herein contained) have jurisdiction to try all
suits of a civil nature excepting suits of which their cognizance is either expressly or
impliedly barred."

Explanation I: 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 decision of
questions as to religious rites or ceremonies.

Explanation II: For the purposes of this section, it is immaterial whether or not any fees
are attached to the office referred to in Explanation I or whether or not such office is
attached to a particular place.

Key Principles:

1. General Jurisdiction:

Civil courts have inherent jurisdiction to try all civil suits unless jurisdiction
expressly/impliedly barred by law

2. Civil Nature:

Suit is of civil nature if it concerns rights and obligations of individuals in their private
capacity (not criminal, revenue, or administrative)

Tests for Civil Nature:

• Relates to enforcement of civil rights

• Concerns property, contract, tort, matrimonial rights, etc.

• Not criminal prosecution or revenue matter

3. Express Bar:

When statute explicitly states civil court has no jurisdiction (e.g., "civil court shall have
no jurisdiction")
Example: Industrial Disputes Act, Consumer Protection Act create tribunals with
express bar to civil court jurisdiction

4. Implied Bar:

When statute creates special tribunal/forum and provides complete machinery for
determination, civil court jurisdiction impliedly barred

Conditions for Implied Bar (Radha Kishan v. Ludhiana Municipality):

1. Statute creates special tribunal/authority

2. Tribunal given power to decide questions of fact and law

3. Statute provides for adequate remedies

4. Statute contains mechanism for enforcement

Case Law:

• Radha Kishan v. Ludhiana Municipality: Enumerated principles for

express/implied bar

• Shankar Narayanan v. K. Sreedevi (SC): "Civil Court has primary jurisdiction in all
types of civil matters as per Section 9 of CPC unless the action is expressly or
impliedly barred."

• Presumption: Civil court has jurisdiction unless proven otherwise; burden on

party challenging

Suits NOT of Civil Nature:

• Criminal prosecutions

• Revenue matters (land revenue, tax assessment)

• Purely administrative decisions

• Constitutional writ jurisdiction (Article 226/32)

PART 4: PLACE OF SUING (SECTIONS 15-24 CPC)

Section 15: Court in Which Suits to Be Instituted

Text: "Every suit shall be instituted in the Court of the lowest grade competent to try it."

Meaning:

Plaintiff must file suit in court of lowest grade having jurisdiction (pecuniary and
territorial)
Rationale: Prevents overburdening of higher courts; ensures efficient judicial
administration

Example:

If suit value ₹1,00,000, plaintiff must file in Munsif Court (if pecuniary limit up to
₹2,00,000), not District Court

Section 16: Suits to Be Instituted Where Subject-Matter Situate

Text (Summary):

Suits relating to immovable property shall be instituted in court within whose local
limits the property is situate.

Applicable to Following Suits:

1. Recovery of immovable property

2. Partition of immovable property

3. Foreclosure, sale, or redemption of mortgage on immovable property

4. Determination of any right/interest in immovable property

5. Compensation for wrong to immovable property

6. Relief respecting immovable property

Proviso (Personal Obedience):

If relief can be obtained through personal obedience of defendant, suit may be filed
either:

• In court where property situate, OR

• In court where defendant resides/works

Example:

Suit for specific performance of contract to sell land in Delhi by defendant in Mumbai:
Plaintiff can sue in Delhi (property location) or Mumbai (defendant's residence) if relief
obtainable through personal obedience

Case Law:

• Harshad Chiman Lal Modi v. DLF Universal Ltd. (2005 SC): Action concerning
immovable property must be filed in jurisdiction where property located,
irrespective of cause of action or parties' residence
Section 17: Suits for Immovable Property Situate Within Jurisdiction of Different
Courts

Text (Summary):

Where immovable property situate within jurisdiction of different courts, suit may be
filed in any court within whose limits any portion of property situate (subject to
pecuniary jurisdiction)

Example:

Property spread across Delhi and Noida: Suit can be filed in Delhi court or Noida court

Section 18: Place of Institution Where Local Limits of Jurisdiction Uncertain

Text (Summary):

If uncertain which court has jurisdiction over immovable property, any court may record
statement of uncertainty and proceed to try suit; decree effective as if property within
jurisdiction

Condition: Court must be satisfied uncertainty exists

Section 19: Suits for Compensation for Wrongs to Person or Movables

Text (Summary):

Suit for compensation for wrong to person or movable property may be instituted:

• Where defendant resides, OR

• Where cause of action arose

Example:

Accident in Mumbai; defendant resides in Pune: Suit can be filed in Mumbai (cause of
action) or Pune (defendant's residence)

Section 20: Other Suits to Be Instituted Where Defendants Reside or Cause of

Action Arises

Text:

"Every suit shall be instituted in a Court within the local limits of whose jurisdiction—
(a) the defendant, or each of the defendants where there are more than one, at the time
of the commencement of the suit, actually and voluntarily resides, or carries on
business, or personally works for gain; or

(b) [any of the defendants, where there are more than one, at the time of the
commencement of the suit actually and voluntarily resides, or carries on business, or
personally works for gain, provided that in such case either the leave of the Court is
given, or the defendants who do not reside, or carry on business, or personally work for
gain, as aforesaid, acquiesce in such institution]; or

(c) the cause of action, wholly or in part, arises."

Key Points:

Defendant's Residence:

• Actual and voluntary residence (not temporary/forced)

• Carries on business

• Personally works for gain

Cause of Action:

• May be wholly or partly within jurisdiction

• Partial cause of action sufficient

Multiple Defendants:

• All defendants reside within jurisdiction, OR

• Court grants leave, OR

• Non-resident defendants acquiesce

Case Law:

• Section 20 is Residuary Provision: Applies to suits not covered by Sections 15-19

• Plaintiff has choice if defendant resides in one place and cause of action arises
elsewhere

Section 21: Objections to Jurisdiction

Text (Summary):

No objection as to place of suing shall be allowed by Appellate or Revisional

Court unless:
 1. Objection taken in court of first instance at earliest opportunity (at or before
settlement of issues), AND

2. Consequent failure of justice occurred

Meaning:

Objection to territorial jurisdiction must be raised immediately; if not raised timely,

deemed waived

Sections 22-24: Transfer of Suits

Section 22: Application for transfer on grounds specified

Section 23: To what court application lies (Appellate Court, High Court, or High Court
having jurisdiction)

Section 24: General power of High Court/District Court to transfer and withdraw suits

PART 5: RES SUB JUDICE - SECTION 10 CPC

Section 10: Stay of Suit

Text:

"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 India having
jurisdiction to grant the relief claimed, or in any Court beyond the limits of India
established or continued by the Central Government and having like jurisdiction, or
before the Supreme Court."

Doctrine of Res Sub Judice:

"Matter under consideration before a court"

Object:

Prevent courts of concurrent jurisdiction from simultaneously entertaining parallel

litigations for same cause of action, subject-matter, and relief

Essential Conditions for Application of Section 10:

1. Two Suits: Previously instituted suit and subsequently instituted suit

2. Matter Directly and Substantially in Issue:

 • Same dispute/controversy

• Overlapping insufficient; identity required

• Issues must be central, not incidental

3. Same Parties:

• Identical parties in both suits, OR

• Parties claiming through/under same persons

4. Same Title:

• Parties litigating in same capacity/character

• Same legal right asserted

5. Previously Instituted Suit Pending:

• Not yet decided

• Still in court

6. Competent Jurisdiction:

• Previous court must have jurisdiction to grant relief sought in subsequent

suit

Effect of Section 10:

Court stays trial of subsequent suit (does NOT dismiss suit)

Important Points:

• Section 10 is mandatory, not discretionary

• Only trial stayed, not institution

• Subsequent suit remains pending; revived after earlier suit decided

• Order of stay can be made at any stage

Difference from Res Judicata (Section 11):

Res Sub Judice (Section 10) Res Judicata (Section 11)

Applies when suit pending Applies when suit decided

Stays trial Bars subsequent suit

 Res Sub Judice (Section 10) Res Judicata (Section 11)

Suit remains alive Suit barred permanently

Case Law:

• Section 10 Mandatory: Court has no discretion if conditions fulfilled

• Inherent Power (Section 151): If Section 10 applicable, cannot invoke Section

151 for stay

PART 6: RES JUDICATA - SECTION 11 CPC

Section 11: Res Judicata

Text (Summary):

"No Court shall try any suit or issue in which the matter directly and substantially in
issue has been directly and substantially in issue in a former suit between the same
parties, or between parties under whom they or any of them claim, litigating under
the same title, in a Court competent to try such subsequent suit or the suit in which
such issue has been subsequently raised, and has been heard and finally decided by
such Court."

Doctrine of Res Judicata:

"A thing adjudicated" – Once a matter decided by competent court, parties cannot re-
litigate same matter

Maxim: "Res judicata pro veritate accipitur" – A matter adjudged is taken for truth

Essentials of Section 11:

1. Former Suit Between Same Parties:

• Must be identical parties, OR

• Parties under whom present parties claim (privies)

• Representative capacity same

2. Same Title:

• Parties must litigate in same legal character/capacity

• E.g., as heir, executor, trustee, tenant, etc.

3. Matter Directly and Substantially in Issue:

 • Same question of fact or law

• Central to decision, not incidental

• Actually contested and decided

4. Heard and Finally Decided:

• Court must have actually heard matter

• Final decision rendered (not preliminary/interlocutory)

5. Competent Court:

• Former court must have jurisdiction to try subsequent suit

• Pecuniary jurisdiction not essential (Explanation II)

6. Same Cause of Action:

• Though not explicitly stated, courts interpret this as requirement

Types of Res Judicata:

A. Actual Res Judicata (Section 11):

Issue actually decided in former suit cannot be re-agitated

B. Constructive Res Judicata (Explanation IV to Section 11):

Issue which ought to have been raised and decided in former suit but was not, cannot
be raised in subsequent suit

Constructive Res Judicata Conditions:

• Matter/ground could have been made ground of attack/defense in former suit

• Parties had opportunity to bring it

• Relates to same cause of action

Exceptions to Res Judicata:

1. Fraud: Former judgment obtained by fraud

2. Collusion: Judgment result of collusion

3. Error Apparent on Face of Record: Manifest error

4. New Facts: Facts not existing at time of former suit

5. Subsequent Change in Law: Law changed after former judgment

Explanation I - Issue of Law:

Decision on question of law operates as res judicata only when:

• Decided on same facts

• In subsequent proceeding between same parties

Explanation II - Competent Court:

Competence determined irrespective of pecuniary limits; court competent in

jurisdiction over subject-matter

Explanation III - Foreign Judgment:

Foreign judgment operates as res judicata (subject to Section 13 conditions)

Explanation IV - Constructive Res Judicata:

Any matter which might and ought to have been made ground of defense/attack in
former suit shall be deemed to have been matter directly and substantially in issue

Case Law:

• Satyadhyan Ghosal v. Deorajin Debi: Issue must have been directly and
substantially in issue; incidental findings not res judicata

• Raj Lakshmi Dasi v. Banamali Sen: Res judicata applies only when all conditions
satisfied; burden on party pleading res judicata

PART 7: FOREIGN JUDGMENTS - SECTIONS 13 & 14 CPC

Section 13: When Foreign Judgment Not Conclusive

Text:

"A foreign judgment shall be conclusive as to any matter thereby directly adjudicated
upon between the same parties or between parties under whom they or any of them
claim litigating under the same title except—

(a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view
of international law or a refusal to recognize the law of India in cases in which such law
is applicable;

(d) where the proceedings in which the judgment was obtained are opposed to natural
justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in India."

Principle:

Foreign judgment operates as res judicata between parties except on above six grounds

Grounds for Non-Conclusiveness:

1. Court Not of Competent Jurisdiction (Section 13(a)):

Foreign court lacked jurisdiction over:

• Parties: Defendant not subject to foreign court's jurisdiction

• Subject-Matter: Foreign court lacked authority over dispute

Tests for Jurisdiction:

• Defendant voluntarily submitted to jurisdiction

• Defendant was resident in foreign country

• Defendant carried on business in foreign country

• Cause of action arose within foreign court's jurisdiction

2. Not Given on Merits (Section 13(b)):

Judgment not based on actual adjudication of rights but on:

• Technical grounds (limitation, jurisdiction)

• Default/non-appearance

• Procedural defect

3. Incorrect View of International Law or Non-Recognition of Indian Law (Section 13(c)):

• Foreign court applied incorrect international law principle

• Foreign court refused to apply Indian law where applicable

4. Opposed to Natural Justice (Section 13(d)):

Proceedings violated principles of natural justice:

• Audi alteram partem: Party not given opportunity to be heard

• Nemo judex in causa sua: Bias or prejudice

• Unfair procedure

5. Obtained by Fraud (Section 13(e)):

Judgment procured by fraud, misrepresentation, or perjury

Fraud must be:

• Proved by clear evidence

• Material to judgment

6. Sustains Claim Founded on Breach of Indian Law (Section 13(f)):

Judgment enforces claim violating any law in force in India

Example: Gambling debt illegal in India

Burden of Proof:

Party resisting foreign judgment must prove one of six exceptions

Section 14: Presumption as to Foreign Judgments

Text:

"The Court shall presume, upon the production of any document purporting to be a
certified copy of a foreign judgment, that such judgment was pronounced by a Court of
competent jurisdiction, unless the contrary appears on the record;

but such presumption may be displaced by proving want of jurisdiction."

Presumption:

Court presumes foreign court had competent jurisdiction when certified copy of foreign
judgment produced

Rebuttal:

Presumption can be rebutted by proving:

• Foreign court lacked jurisdiction (as per Section 13(a) tests)

• Evidence showing want of jurisdiction

Effect of Sections 13 & 14:

Foreign judgment conclusive (operates as res judicata) unless challenged on grounds in

Section 13

Execution of Foreign Judgment:

• Foreign judgment not directly executable in India

• Fresh suit must be filed in India on basis of foreign judgment

• Foreign judgment treated as conclusive proof (subject to Section 13)

 • Decree in fresh suit can be executed

Exception - Section 44A CPC (Reciprocating Territories):

For judgments from superior courts of reciprocating territories (countries notified by

Central Government), foreign judgment may be executed as if passed by Indian District
Court

Reciprocating Territories: UK, Singapore, Hong Kong, Bangladesh, UAE (notified by

Government)

Case Law:

• International Woollen Mills v. Standard Wool: Foreign judgment conclusive

unless Section 13 exceptions proved

• Alcon Electronics v. Celem: Burden on party resisting to prove lack of jurisdiction

PART 8: INSTITUTION OF SUIT - SECTION 26 & ORDER IV CPC

Section 26: Institution of Suits

Text:

"(1) Every suit shall be instituted by the presentation of a plaint or in such other manner
as may be prescribed.

(2) In every plaint, facts shall be proved by affidavit and the affidavit shall be in the form
and manner as prescribed under Order VI Rule 15A."

Key Points:

1. Plaint Mandatory: Suit instituted by presenting plaint

2. Duplicate Plaint: Filed in duplicate (Order IV Rule 1)

3. Affidavit: Facts must be proved by affidavit (2002 Amendment)

Order IV: Institution of Suits

Order IV Rule 1:

"(1) Every suit shall be instituted by presenting a plaint in duplicate to the Court or such
officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they
are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies with the
requirements of sub-rules (1) and (2)."

Meaning:

• Plaintiff/pleader/authorized agent presents plaint in duplicate

• Must comply with Orders VI (Pleadings) and VII (Plaint)

• Non-compliance: Plaint not duly instituted

Case Law:

• State Trading Corporation v. Ironside Ltd.: Presentation of plaint = institution of

suit

• Inquiry into jurisdiction not exercise of jurisdiction: Court can determine whether
jurisdiction exists before proceeding

PART 9: PARTIES TO SUIT - SECTIONS 27-32 & ORDER I CPC

Sections 27-32: Summons

Section 27: Court shall issue summons to defendant within 30 days of institution

Section 28: Service of summons on defendant's agent

Section 29: Service on corporation

Section 30: Power to order discovery and inspection

Section 31: Summons to witness

Section 32: Penalty for default of witness

(Detailed provisions covered under Order V)

Order I: Parties to Suits

Order I Rule 1: Who May Be Joined as Plaintiffs

"All persons may be joined in one suit as plaintiffs where—

(a) any right to relief in respect of, or arising out of, the same act or transaction or series
of acts or transactions is alleged to exist in such persons, whether jointly, severally or in
the alternative; and

(b) if such persons brought separate suits, any common question of law or fact would
arise."
Conditions for Joinder of Plaintiffs:

1. Right to relief from same act/transaction

2. Common question of law/fact arises

Order I Rule 3: Who May Be Joined as Defendants

"All persons may be joined in one suit as defendants where—

(a) any right to relief in respect of, or arising out of, the same act or transaction or series
of acts or transactions is alleged to exist against such persons, whether jointly, severally
or in the alternative; and

(b) if separate suits were brought against such persons, any common question of law or
fact would arise."

Same conditions apply for defendants

Order I Rule 8: Representative Suit

Text:

"(1) Where there are numerous persons having the same interest in one suit,—

(a) one or more of such persons may, with the permission of the Court, sue or be sued,
or may defend such suit, on behalf of, or for the benefit of, all persons so interested.

(2) The Court shall, in every case where a permission is granted under sub-rule (1), at
the plaintiff's expense, give notice of the institution of the suit to all persons so
interested either by personal service, or, where, by reason of the number of persons or
any other cause, such service is not reasonably practicable, by public advertisement."

Essentials of Representative Suit:

1. Numerous Persons: Large number of persons

2. Same Interest: Common interest in subject-matter and relief

3. Permission of Court: Court must grant permission

4. Notice: All interested persons given notice

5. Benefit of All: Decree binds all persons represented

Examples:

• Shareholders suing on behalf of all shareholders

• Residents of locality suing for public nuisance

Case Law:

• Permission mandatory; court must be satisfied common interest exists

• Decree in representative suit binds all persons on whose behalf suit filed

Order I Rule 9: Non-Joinder and Misjoinder of Parties

Order I Rule 9:

"No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the
Court may in every suit deal with the matter in controversy so far as regards the rights
and interests of the parties actually before it:

Provided that nothing in this rule shall apply to non-joinder of a necessary party."

Meaning:

• Misjoinder: Wrongful joinder of parties (who should not be joined)

• Non-Joinder: Failure to join parties (who should be joined)

• General Rule: Suit not defeated merely because of misjoinder/non-joinder

• Exception: Non-joinder of necessary party may be fatal

Necessary Party vs. Proper Party:

Necessary Party:

• Person without whom no effective decree can be passed

• Whose absence prevents complete adjudication

• Non-joinder may be fatal

Proper Party:

• Person whose presence assists complete determination

• But effective decree can be passed in absence

• Non-joinder not fatal

Case Law:

• Kasturi v. Iyyamperumal (2005) 6 SCC 733: Necessary party is one against whom
relief sought and without whom decree cannot be passed

• Section 99 CPC: Case not reversed on appeal for misjoinder/non-joinder unless

affects merits or court's authority
Order I Rule 10: Procedure for Adding, Striking Out, or Substituting Parties

Order I Rule 10(1):

"The Court may at any stage of the proceedings, either upon or without the application
of either party, and on such terms as may appear to the Court to be just, order that the
name of any party improperly joined, whether as plaintiff or defendant, be struck out,
and that the name of any person who ought to have been joined, whether as plaintiff or
defendant, or whose presence before the Court may be necessary in order to enable the
Court effectually and completely to adjudicate upon and settle all the questions
involved in the suit, be added."

Order I Rule 10(2):

"No person shall be added as a plaintiff suing without a next friend or as the next friend
of a plaintiff under any disability without his own consent."

Power of Court:

• At Any Stage: Before passing decree

• Suo Motu or on Application: Court can act on its own or on party's application

• Strike Out: Remove improperly joined party

• Add: Join necessary/proper party

• Substitute: Replace party (e.g., legal representative on death)

Terms: Court may impose terms/conditions for amendment

Case Law:

• Court should exercise power liberally to ensure complete adjudication

• Delay in application may be ground for refusal

Order I Rule 13: Objections as to Misjoinder and Non-Joinder

Order I Rule 13:

"All objections on the ground of non-joinder or misjoinder of parties shall be taken at

the earliest possible opportunity and, in all cases where issues are settled, at or before
such settlement, unless the ground of objection has subsequently arisen, and any such
objection not so taken shall be deemed to have been waived."

Time Limit for Objection:

 • At Earliest Opportunity: Immediately when issue identified

• At or Before Settlement of Issues: Latest time if issues settled

• Subsequently Arisen Ground: Can be raised later if ground arises after

settlement

Effect of Non-Compliance:

Objection deemed waived

PART 10: FRAME OF SUIT - ORDER II CPC

Order II Rule 1: Frame of Suit

Text:

"Every suit shall as far as practicable be framed so as to afford ground for final
decision upon the subjects in dispute and to prevent further litigation concerning them."

Meaning:

Suit should be comprehensively framed to:

• Enable final decision

• Include all related claims

• Avoid multiplicity of litigation

Order II Rule 2: Suit to Include the Whole Claim

Order II Rule 2(1):

"Every suit shall include the whole of the claim which the plaintiff is entitled to make in
respect of the cause of action; but a plaintiff may relinquish any portion of his claim in
order to bring the suit within the jurisdiction of any Court."

Order II Rule 2(2):

"Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of
his claim, he shall not afterwards sue in respect of the portion so omitted or
relinquished."

Order II Rule 2(3):

"A person entitled to more than one relief in respect of the same cause of action may
sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to
sue for all such reliefs, he shall not afterwards sue for any relief so omitted."

Principle:

Plaintiff must include entire claim arising from one cause of action in one suit;
otherwise, barred from subsequent suit for omitted portion

Doctrine of Res Judicata under Order II Rule 2:

Known as "Constructive Res Judicata" - prevents splitting of cause of action

Conditions for Application:

1. Same Cause of Action: Both suits based on same cause of action

2. Entitled to More Than One Relief: Plaintiff had multiple reliefs available

3. Omitted to Sue: Plaintiff omitted relief without court's leave

4. Subsequent Suit: Filed for omitted relief

Exception:

If plaintiff obtains court's leave to omit certain relief, can sue subsequently

Purpose:

• Prevent multiplicity of suits

• Ensure finality

• Protect defendant from harassment

Case Law:

• Supreme Court (2025): Order II Rule 2 applies to same cause of action; different
causes of action can be subject of separate suits

• Cause of action = every fact necessary to prove to support right to judgment

Order II Rule 3: Joinder of Causes of Action

Order II Rule 3(1):

"Save as otherwise provided, a plaintiff may unite in the same suit several causes of
action against the same defendant, or the same defendants jointly; and any plaintiffs
having causes of action in which they are jointly interested against the same defendant
or the same defendants jointly may unite such causes of action in the same suit."
Order II Rule 3(2):

"Where causes of action are united, the jurisdiction of the Court as regards the suit shall
depend on the amount or value of the aggregate subject-matters at the date of
instituting the suit."

Meaning:

Multiple causes of action can be joined in one suit

Jurisdiction: Based on aggregate value of all claims

Order II Rule 4: Only Certain Claims to Be Joined for Recovery of Immovable

Property

Text:

"No cause of action shall, unless with the leave of the Court, be joined with a suit for the
recovery of immovable property, except—

(a) claims for mesne profits of the property claimed;

(b) claims for rent or for arrears of rent of the property claimed;

(c) claims for damages for breach of any contract under which the property claimed was
held by the defendant or by any person through whom he claims;

(d) claims for damages for injury to the property claimed, caused by the defendant
during his occupation thereof."

Restriction:

In suits for recovery of immovable property, only specified claims can be joined without
court's leave

Specified Claims:

• Mesne profits

• Rent/arrears

• Breach of contract damages

• Damages for injury to property

Other Claims: Require court's leave

Order II Rule 5: Separate Trials

Text:

"Where it appears to the Court that the joinder of causes of action in one suit
may embarrass or delay the trial or is otherwise inconvenient, the Court may
order separate trials or make such other order as may be expedient in the interests of
justice."

Discretion:

Court may order separate trials if joinder:

• Embarrasses trial

• Delays trial

• Is inconvenient

PART 11: PLEADINGS - ORDER VI, VII, VIII CPC

Order VI: Pleadings Generally

Order VI Rule 1: Pleadings

"'Pleadings' shall mean plaint or written statement."

Order VI Rule 2: What Pleadings Shall Contain

"(1) Every pleading shall contain, and contain only, a statement in a concise form of
the material facts on which the party pleading relies for his claim or defence, as the
case may be, but not the evidence by which they are to be proved.

(2) Every pleading shall, when necessary, be divided into paragraphs, numbered
consecutively, each allegation being, so far as is convenient, contained in a separate
paragraph.

(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as
in words."

Material Facts vs. Evidence:

• Material Facts: Facts essential to cause of action/defense (must be pleaded)

• Evidence: Means by which facts proved (not pleaded; led during trial)

Order VI Rule 3: Forms of Pleading

Prescribes that pleadings should be as brief and concise as possible

Order VI Rule 4: Condition Precedent

Where plaintiff's claim is subject to condition precedent, pleading must state condition
fulfilled or excuse for non-fulfillment

Order VI Rule 6: Particulars

Where pleading contains general averment (e.g., fraud, misrepresentation), particulars

must be given

Order VI Rule 9: Effect of Documents

Where party relies on document, description and effect of document must be stated
(not entire document copied)

Order VI Rule 15: Verification of Pleadings

"(1) Save as otherwise provided by any law for the time being in force, every pleading
shall be verified at the foot by the party or by one of the parties pleading or by some
other person proved to the satisfaction of the Court to be acquainted with the facts of
the case.

(2) The person verifying shall specify, by reference to the numbered paragraphs of the
pleadings, what he verifies of his own knowledge and what he verifies upon information
received and believed to be true.

(3) The verification shall be signed by the person making it and shall state the date on
which and the place at which it was signed."

Purpose of Verification:

• Fixes responsibility on party

• Prevents frivolous allegations

• Basis for perjury if false

Order VI Rule 15A: Affidavit

Facts in plaint shall be proved by affidavit (Section 26(2))

Order VI Rule 17: Amendment of Pleadings

"The Court may at any stage of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just, and all such amendments
shall be made as may be necessary for the purpose of determining the real questions in
controversy between the parties."

Liberal Amendment:

Courts exercise power liberally to ensure real controversy decided; subject to:

• Not causing prejudice to other party

 • Terms/conditions may be imposed

Order VII: Plaint

Order VII Rule 1: Particulars to Be Contained in Plaint

"The plaint shall contain the following particulars:—

(a) the name of the Court in which the suit is brought;

(b) the name, description and place of residence of the plaintiff;

(c) the name, description and place of residence of the defendant, so far as they can be
ascertained;

(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a
statement to that effect;

(e) the facts constituting the cause of action and when it arose;

(f) the facts showing that the Court has jurisdiction;

(g) the relief which the plaintiff claims;

(h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the
amount so allowed or relinquished; and

(i) a statement of the value of the subject-matter of the suit for the purposes of
jurisdiction and of court-fees, so far as the case admits."

Essentials of Plaint:

All nine particulars mandatory

Order VII Rule 10: Return of Plaint

"(1) Subject to the provisions of rules 10A and 10B, the plaint shall at any stage of the
suit be returned to be presented to the Court in which the suit should have been
instituted in the following cases:—

(a) where the suit appears from the statement in the plaint to be undervalued, and the
plaintiff, on being required by the Court to correct the valuation within a time to be fixed
by the Court, fails to do so;

(b) where the plaint is written upon paper insufficiently stamped, and the plaintiff, on
being required by the Court to supply the requisite stamp-paper within a time to be fixed
by the Court, fails to do so;
(c) where the suit appears from the statement in the plaint to have been instituted in a
Court not having jurisdiction to try it, and the plaint is not returned under Rule 10A."

Order VII Rule 11: Rejection of Plaint

"The plaint shall be rejected in the following cases:—

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the
Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff, on being required by the Court to supply the
requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of Rule 9."

Rejection vs. Return:

• Return: Plaint sent back to be filed in proper court (jurisdiction/undervaluation)

• Rejection: Plaint rejected outright (no cause of action, barred by law)

Effect of Rejection:

Deemed decree under Section 2(2); appealable

Case Law:

• Rejection under Order VII Rule 11(a): Only when plaint, on face of it, discloses no
cause of action; not after elaborate inquiry

• Res Judicata on Rejection: Rejection operates as res judicata

Order VIII: Written Statement

Order VIII Rule 1: Written Statement

"(1) The defendant shall, within thirty days from the date of service of summons on him,
present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the said
period of thirty days, he shall be allowed to file the same on such other day, as may be
specified by the Court, for reasons to be recorded in writing, but which shall not be later
than ninety days from the date of the first hearing of the suit."
Time Limit:

• 30 days from service of summons

• Extendable by court up to 90 days (total 120 days maximum)

• Court must record reasons

Order VIII Rule 3: Specific Denial

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

Order VIII Rule 4: Evasive Denial

"Where a defendant denies an allegation of fact in the plaint, he must not do so

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

Order VIII Rule 5: Specific Denial of Documents

Where plaint refers to document, defendant must specifically admit or deny

genuineness; silence = admission

Order VIII Rule 6: New Facts

Defendant may state new facts (defenses) in written statement

Order VIII Rule 10: Procedure Where Defendant Fails to Present Written Statement

"Where the defendant fails to present a written statement within the period
prescribed or allowed under Rule 1, the Court may pronounce judgment against him or
make such other order in relation to the suit as it thinks fit."

Consequences:

• Court may pronounce judgment

• Or proceed ex parte

PART 12: SUMMONS - SECTIONS 27-32 & ORDER V CPC

Sections 27: Summons to Defendant

Text:
"(1) Where a suit has been duly instituted, a summons may be issued to the defendant
to appear and answer the claim and may be served in manner prescribed within thirty
days from the date of the institution of the suit or within such further time as the Court
may, for sufficient cause, from time to time, appoint, not exceeding in the whole six
months from the date of the institution of the suit."

Time Limit:

• Issue within 30 days of institution

• Extendable up to 6 months total

Order V: Issue and Service of Summons

Order V Rule 1: Summons

"When a suit has been duly instituted, a summons may be issued to the defendant to
appear and answer the claim."

Order V Rule 2: Contents

Summons shall:

• Direct defendant to appear

• State date/time/place of appearance

• Be signed/sealed

Order V Rule 5: Service of Summons

Service by delivering/tendering copy signed by Judge/officer and sealed

Order V Rule 9: Delivery to Party for Service

Court may deliver summons to plaintiff for service by plaintiff

Order V Rule 9A: Service by Plaintiff

"(1) The Court may, in addition to the service of summons under rule 9, on the
application of the plaintiff for the issue of a summons for the appearance of the
defendant, permit such plaintiff to effect service of such summons on such defendant
and shall, in such a case, deliver the summons to such plaintiff for service.

(2) The service of such summons shall be effected by or on behalf of such plaintiff by
delivering or tendering to the defendant personally a copy thereof signed by the Judge or
such officer of the Court as he may appoint in this behalf and sealed with the seal of the
Court."
Advantage: Expedites service

Order V Rule 10: Mode of Service

Service shall be made by delivering or tendering copy

Order V Rule 12: Personal Service

Wherever practicable, service made on defendant in person unless agent empowered

to accept service

Order V Rule 15: Substituted Service

"(1) Where the Court is satisfied that there is reason to believe that the defendant
is keeping out of the way for the purpose of avoiding service, or that for any other reason
the summons cannot be served in the ordinary way, the Court shall order the summons
to be served by affixing a copy thereof in some conspicuous place in the Court-house,
and also upon some conspicuous part of the house (if any) in which the defendant is
known to have last resided or carried on business or personally worked for gain."

Substituted Service Modes:

• Affixing on court notice board

• Affixing on defendant's last known residence

• Publication in newspaper (if court orders)

Order V Rule 20: Summons by Post

Summons may be sent by registered post/speed post

Order V Rule 21: Summons by Email/Courier

After 2002 Amendment, service by email/courier permitted

Order V Rule 30: Proof of Service

Person serving summons shall return it with endorsement/affidavit stating:

• Time/manner of service

• Signature of defendant (if acknowledgment obtained)

PART 13: APPEARANCE AND NON-APPEARANCE - ORDER IX CPC

Order IX: Appearance and Non-Appearance of Parties

Order IX Rule 1: Parties to Appear on Fixed Day

"On the day fixed in the summons for the defendant to appear and answer, the parties
shall be in attendance at the Court-house in person or by their respective pleaders, and
the suit shall then be heard unless the hearing is adjourned to a future day fixed by the
Court."

Duty: Both parties must appear

Order IX Rule 2: Consequence of Non-Appearance of Plaintiff

"Where the plaintiff does not appear when the suit is called on for hearing, the Court
may make an order that the suit be dismissed for default."

Consequence: Suit dismissed for default

Not a Decree: Order of dismissal for default is not decree; plaintiff can file fresh suit
(Order IX Rule 4)

Order IX Rule 3: Where Both Parties Fail to Appear

"Where neither party appears when the suit is called on for hearing, the Court may make
an order that the suit be dismissed."

Dismissal for Default: Not res judicata; fresh suit can be filed

Order IX Rule 4:

"Where a suit is dismissed under Rule 2 or Rule 3, the plaintiff may (if he satisfies the
Court that there was sufficient cause for his non-appearance when the suit was called
on for hearing) apply for an order to set aside the dismissal; and, if he succeeds in
showing such cause, the Court shall make an order setting aside the dismissal upon
such terms as to costs or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit."

Setting Aside Dismissal:

• Application must show sufficient cause for non-appearance

• Court may set aside on terms

Order IX Rule 6: Procedure When Only Plaintiff Appears

"(1) Where the plaintiff appears and the defendant does not appear when the suit is
called on for hearing, then—
(a) if the summons was duly served, the Court may make an order that the suit shall
be heard ex parte;

(b) if the summons was not duly served, the Court shall direct a fresh summons to be
issued and served on the defendant."

Ex Parte Hearing:

Court may proceed to hear plaintiff's case and pass ex parte decree

Conditions:

• Summons duly served

• Defendant did not appear

Order IX Rule 7: Procedure When Defendant Appears and Plaintiff Does Not on First
Hearing

Court may dismiss suit (Rule 2) or adjourn hearing if defendant admits whole claim or
requests adjournment

Order IX Rule 8:

"Where the defendant appears and the plaintiff does not appear on the day fixed for
hearing or on any other day to which the hearing may be adjourned, and it appears that
the summons was duly served on the plaintiff,—

(a) if the defendant admits the whole of the claim, the Court shall pass a decree against
the plaintiff for such sum or other relief as the defendant admits to be due to the
plaintiff;

(b) if the defendant does not admit the whole of the claim, the Court shall dismiss the
suit for default, unless the defendant by his pleading or otherwise raises any issue or
claim which can be heard and determined against the plaintiff ex parte, in which case
the Court may make an order that such issue or claim shall be so heard and
determined."

Order IX Rule 9: Setting Aside Ex Parte Decrees

"(1) In any case in which a decree is passed ex parte against a defendant, he may apply
to the Court by which the decree was passed for an order to set aside such decree; and
if he satisfies the Court that the summons was not duly served, or that he was
prevented by any sufficient cause from appearing when the suit was called on for
hearing, the Court shall make an order setting aside the decree as against him upon
such terms as to costs, payment into Court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:
Provided that where the decree is of such a nature that it cannot be set aside as against
such defendant only it may be set aside as against all or any of the other defendants
also:

Provided further that no Court shall set aside a decree passed ex parte merely on the
ground that there has been an irregularity in the service of summons, if it is satisfied
that the defendant had notice of the date of hearing and had sufficient time to appear
and answer the plaintiff's claim."

Grounds for Setting Aside Ex Parte Decree:

1. Summons Not Duly Served: Service irregular/improper

2. Sufficient Cause for Non-Appearance: Valid reason for absence

Conditions:

• Application must be filed

• Defendant must satisfy court

Second Proviso:

Mere irregularity in service insufficient if defendant had actual notice and time

Order IX Rule 13: Decree Against Defendant Only on Proof

"Where defendant appears, plaintiff must prove case; court may not pass decree
merely because defendant admits facts"

Order IX Rule 14: No Decree Without Notice

"No decree to be set aside without notice to opposite party"

PART 14: EXAMINATION OF PARTIES - ORDER X CPC

Order X: Examination of Parties by Court

Order X Rule 1: Ascertainment Whether Allegations Admitted or Denied

"At the first hearing of the suit the Court shall ascertain from each party or his pleader
whether he admits or denies such allegations of fact as are made in the plaint or written
statement (if any) of the opposite party, and as are not expressly or by necessary
implication admitted or denied by the party against whom they are made. The Court
shall record such admissions and denials."

Purpose:

• Identify disputed facts

 • Ascertain admissions

• Frame issues correctly

Order X Rule 2: Oral Examination of Party or Companion

"(1) At the first hearing of the suit, the Court—

(a) shall, with a view to elucidating matters in controversy in the suit, examine orally
such of the parties to the suit appearing in person or present in Court, as it deems fit;
and

(b) may, if it thinks fit, examine any person able to answer any material questions
relating to the suit, who may be present in Court, though not a party to the suit or
summoned as a witness.

(2) At any hearing of the suit subsequent to the first hearing, the Court may, if it thinks
fit, examine orally any party appearing in person or present in Court, or, with the consent
of the parties, any person present in Court who may be able to answer any material
questions relating to the suit, though not a party thereto or summoned as a witness.

(3) The Court may, if it thinks fit, put in the course of an examination under this rule
questions suggested by either party."

Power of Court:

• Discretionary: Court decides whether to examine

• Purpose: Elucidate matters, identify issues

• First Hearing + Subsequent Hearings

Not Evidence: Examination under Order X is for framing issues, not evidence for
decision (unless party examined as witness under Order XVIII)

Order X Rule 3: Substance to Be Written**

"The substance of the examination shall be reduced to writing by the Judge, and shall
form part of the record."

Order X Rule 4: Consequence of Refusal of Pleader to Answer**

"(1) Where a party fails to answer within such time as the Court thinks fit any question
which the Court thinks to be within the knowledge of that party and which ought to be
answered by him, the Court may order that party to appear in person to be examined or
to produce such documents as are in his possession.

(2) If such party fails without lawful excuse to appear in person on the day so appointed,
the Court may pronounce judgment against him, or make such order in relation to the
suit as it thinks fit."

Sanction: Judgment against non-compliant party

Case Law:

• Kapil Corepacks v. Harbans Lal (2010) 8 SCC 452: Object of Order X Rule 2 is to
identify matters in controversy, not to prove/disprove or seek admissions

• Delhi HC (2022): Oral examination under Order X is discretionary; court decides

necessity

PART 15: DISCOVERY AND INSPECTION - ORDER XI CPC

Order XI: Discovery and Inspection

Purpose:

Enable parties to:

• Discover facts/documents in possession of opponent

• Inspect documents relied upon

• Prevent surprise at trial

Types of Discovery:

1. Discovery by Interrogatories (Rules 1-11): Written questions answered on oath

2. Discovery of Documents (Rules 12-21): Disclosure of documents

Order XI Rule 1: Discovery by Interrogatories

"(1) 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."

Interrogatories:

• Written questions
 • Require court's leave

• Opponent must answer on oath (affidavit)

Order XI Rule 4: Objection to Answer

Party may object to interrogatory; court decides

Order XI Rule 6: Forms of Interrogatories**

Interrogatories in Form No. 3 in Appendix C

Order XI Rule 7: Affidavit in Answer**

Answers filed as affidavit in Form No. 4

Order XI Rule 12: Application for Discovery of Documents**

"Any party may, without filing any affidavit, apply to the Court for an Order directing any
other party to any suit to make discovery on oath of the documents which are or have
been in his possession or power, relating to any matter in question therein. On the
hearing of such application the Court may either refuse or adjourn the same, if satisfied
that such discovery is not necessary, or not necessary at that stage of the suit, or make
such Order, either generally or limited to certain classes of documents, as may, in its
discretion be thought fit:

Provided that discovery shall not be Ordered when and so far as the Court shall be of
opinion that it is not necessary either for disposing fairly of the suit or for saving costs."

Discovery Order:

Court may order party to disclose documents on oath

Discretion: Not necessary/not necessary at that stage, court may refuse

Order XI Rule 14: Affidavit of Documents**

Party must file affidavit of documents specifying:

• Documents in possession/power

• Documents objected to produce (with grounds)

• Form No. 5 in Appendix C

Order XI Rule 21: Non-Compliance**

"(1) Where any party fails to comply with any Order to answer interrogatories, or for
discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit
dismissed for want of prosecution, and, if a defendant, to have his defence, if any struck
out, and to be placed in the same position as if he had not defended, and the party
interrogating or seeking discovery or inspection may apply to the Court for an Order to
that effect and an Order may be made on such application accordingly, after notice to
the parties and after giving them a reasonable opportunity of being heard."

Consequences of Non-Compliance:

• Plaintiff: Suit dismissed

• Defendant: Defense struck out (ex parte decree)

Case Law:

• Discovery must relate to matters in question in suit

• Not permissible as fishing expedition

• Court's discretion guided by necessity for fair disposal

PART 16: ADMISSIONS - ORDER XII CPC

Order XII: Admissions

Purpose: Enable parties to:

• Admit facts/documents

• Avoid unnecessary proof

• Expedite trial

Types of Admissions:

1. Admission of Case (Rule 1)

2. Admission of Documents (Rule 2, 2A, 3)

3. Admission of Facts (Rule 4)

Order XII Rule 1: Notice to Admit Case**

"Any party to a suit may give notice to the other party to admit, for the purposes of that
suit only, any specific document, saving all just exceptions."

Notice to Admit: Party may serve notice on opponent to admit documents

Order XII Rule 2A: Document Deemed Admitted**

"(1) Every document which a party is called upon to admit, if not denied specifically or
by necessary implication, or stated to be not admitted in the pleading of that party or in
his reply to the notice to admit documents, shall be deemed to be admitted except as
against a person under a disability:

Provided that the Court may in its discretion and for reasons to be recorded, require any
document so admitted to be proved otherwise than by such admission."

Deemed Admission:

If document not denied, deemed admitted

Exception: Person under disability (minor, unsound mind)

Order XII Rule 3: Form of Notice**

Notice in Form No. 9 in Appendix C

Order XII Rule 3A: Power of Court to Record Admission**

"The Court may, at any time, and from time to time, call upon any party to admit any fact
or document so as to save the costs of proving such fact or document."

Suo Motu Power: Court can call for admissions

Order XII Rule 4: Notice to Admit Facts**

"Any party may, not later than nine days before the day fixed for the hearing, give notice
to the other party or his pleader, calling on him to admit, for the purposes of the suit
only, any specific fact or facts mentioned in the notice."

Notice Period: Minimum 9 days before hearing

Form: Form No. 10 in Appendix C

Order XII Rule 6: Judgment on Admissions**

"Where admissions of fact have been made either in the pleading or otherwise, whether
orally or in writing, the Court may at any stage of the suit, either on the application of
any party or of its own motion and without waiting for the determination of any other
question between the parties, make such order or give such judgment as it may think fit,
having regard to such admissions."

Judgment on Admissions:

If facts admitted unequivocally, court may pass judgment without trial

Conditions:

• Clear and Unequivocal Admission: Not ambiguous

• Categorical: Conscious and deliberate act

• Material Fact: Relates to essential fact

• Unconditional: Not subject to condition

Discretionary: Court may, but not obliged to pass judgment

Case Law:

• Order XII Rule 6 Discretionary: Court must exercise judicial discretion

• Judgment on admission denies trial; must be exercised sparingly

• Admission must be such that no further evidence required

Order XII Rule 8: Costs of Proof**

Where party fails to admit after notice, and fact/document subsequently proved, costs
of proof awarded against non-admitting party

PART 17: SETTLEMENT OF ISSUES - ORDER XIV CPC

Order XIV: Settlement of Issues

Order XIV Rule 1: Framing of Issues

"(1) Issues arise when a material proposition of fact or law is affirmed by the one party
and denied by the other.
(2) Material propositions are those propositions of law or fact which a plaintiff must
allege in order to show a right to sue or a defendant must allege in order to constitute
his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form
the subject of a distinct issue.

(4) Issues are of two kinds:

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the Court shall, after reading the plaint and the written
statements, if any, and after examination under Rule 2 of Order X and after hearing the
parties or their pleaders, ascertain upon what material propositions of fact or of law the
parties are at variance, and shall thereupon proceed to frame and record the issues on
which the right decision of the case appears to depend."

Issues:

• Disputed material propositions

• Essential for determining rights

Types:

1. Issues of Fact: Disputed questions of fact (e.g., Did defendant receive money?)

2. Issues of Law: Disputed questions of law (e.g., Is suit barred by limitation?)

Framing:

Court frames issues after:

• Reading pleadings

• Examination under Order X

• Hearing parties

Order XIV Rule 2: Court May Try Issue of Law First**

"(1) Where issues both of law and of fact arise in the same suit, and the Court is of
opinion that the case or any part thereof may be disposed of on an issue of law only, it
may try that issue first if that issue relates to—

(a) the jurisdiction of the Court, or

(b) a bar to the suit created by any law for the time being in force,
and for that purpose may, if it thinks fit, postpone the settlement of the other issues
until after that issue has been determined, and may deal with the suit in accordance
with the decision on that issue."

Preliminary Issue:

Court may decide preliminary legal issues first (jurisdiction, limitation, res judicata)

Advantage: Saves time if suit dismissed on preliminary issue

Order XIV Rule 3: Materials from Which Issues Framed**

"The Court may frame the issues from all or any of the following materials:—

(a) allegations made on oath by the parties, or by any persons present on their behalf, or
made by the pleaders of such parties;

(b) allegations made in the pleadings or in answers to interrogatories delivered in the

suit;

(c) the contents of documents produced by either party."

Sources:

Pleadings, examination, interrogatories, documents

Order XIV Rule 4: Court May Examine Witnesses or Documents Before Framing
Issues**

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

Power: Court may summon person/document before framing issues

Order XIV Rule 5: Power to Amend and Strike Out Issues**

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

Amendment: Liberal power to amend/add/strike out issues

Order XIV Rule 6: Questions of Fact or Law by Agreement**

"Where the parties to a suit are agreed as to the question of fact or of law to be decided
between them, they may state the same in the form of an issue, and enter into an
agreement in writing that, upon the finding of the Court in the affirmative or the negative
of such issue,—

(a) a sum of money specified in the agreement or to be ascertained by the Court, or in

such manner as the Court may direct, shall be paid by one of the parties to the other of
them, or that one of them be declared entitled to some right or subject to some liability
specified in the agreement; or

(b) some property specified in the agreement and in dispute in the suit shall be
delivered by one of the parties to the other of them, or as that other may direct; or

(c) one or more of the parties shall do or abstain from doing some particular act
specified in the agreement and relating to the matter in dispute."

Agreed Issues:

Parties may agree on issues and consequences

Order XIV Rule 7: Court May Pronounce Judgment**

"Where the Court is satisfied, after making such inquiry as it deems proper,—

(a) that the agreement was duly executed by the parties,

(b) that they have a substantial interest in the decision of such question as aforesaid,
and

(c) that the same is fit to be tried and decided,

it shall proceed to record and try the issue and state its finding or decision thereon in
the same manner as if the issue had been framed by the Court, and shall, upon the
finding or decision on such issue, pronounce judgment according to the terms of the
agreement; and, upon the judgment so pronounced a decree shall follow."

Judgment on Agreed Issue:

Court pronounces judgment as per agreement terms

PART 18: SUMMONING AND ATTENDANCE OF WITNESSES - ORDER XVI & XVI-A CPC

Order XVI: Summoning and Attendance of Witnesses

Order XVI Rule 1: List of Witnesses and Summons

"(1) On or before such date as the Court may appoint, and not later than fifteen days
after the date on which the issues are settled, the parties shall present in Court a list of
witnesses whom they propose to call either to give evidence or to produce documents
and obtain summonses to such person for their attendance in Court.

(2) A party desirous of obtaining any summons for the attendance of any person shall
file in Court an application stating therein the purpose for which the witness is proposed
to be summoned.

(3) The Court may, for reasons to be recorded, permit a party to call, whether by
summoning through Court or otherwise, any witness, other than those whose names
appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the
omission to mention the name of such witness in the said list."

List of Witnesses:

• Filed within 15 days of settlement of issues

• Application stating purpose of each witness

Additional Witnesses:

Court may permit if sufficient cause shown

Order XVI Rule 1A: Rejection of Application**

Court may reject application for summons if:

• Witness not necessary

• Purpose vexatious/frivolous

Order XVI-A: Summoning and Attendance of Witnesses Confined or Detained in

Prison

Order XVI-A Rule 1: Application for Attendance

"(1) Where the attendance of any person confined or detained in a prison is required for
the purpose of giving evidence or of producing any document, the party requiring his
attendance may apply to the Court for an order under this rule.

(2) The application shall be in writing and shall be supported by an affidavit."

Order XVI-A Rule 2: Power to Require Attendance

Court may order officer-in-charge of prison to produce prisoner for examination

Conditions:

• Distance not exceeding 25 km (unless court satisfied commission inadequate)

• Security arrangements

PART 19: HEARING OF SUIT AND EXAMINATION OF WITNESSES - ORDER XVIII CPC

Order XVIII: Hearing of Suit and Examination of Witnesses

Order XVIII Rule 1: Right to Begin

"The plaintiff has the right to begin unless the defendant admits the facts alleged by the
plaintiff and contends that either in point of law or on some additional facts alleged by
the defendant the plaintiff is not entitled to any part of the relief which he seeks, in
which case the defendant has the right to begin."

General Rule: Plaintiff begins (burden of proof)

Exception: Defendant begins if admits facts but contends no relief due on

law/additional facts

Order XVIII Rule 4: Evidence-in-Chief by Affidavit**

"(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies
thereof shall be supplied to the opposite party by the party who calls him:

Provided that where documents are filed and the parties rely upon the documents, the
proof and admissibility of such documents which are filed along with affidavit shall be
subject to the orders of the Court.

(2) The evidence (cross-examination and re-examination) of the witness in attendance,

whose evidence (examination-in-chief) by affidavit has been furnished to the Court,
shall be taken either by the Court or by the Commissioner appointed by it."

Evidence-in-Chief:
By affidavit (2002 Amendment)

Cross-Examination and Re-Examination:

Oral in open court

Order XVIII Rule 12: Remarks on Demeanor**

"The Court may record such remarks as it thinks material respecting the demeanour of
any witness while under examination."

Demeanor:

Court may note witness's conduct, confidence, evasiveness

Order XVIII Rule 17: Recall of Witnesses**

"The Court may at any stage of a suit recall any witness who has been examined and
may (subject to the law of evidence for the time being in force) put any question to him."

Power to Recall:

Court may recall witness for clarification

Discretion: Should be exercised sparingly; not to fill gaps in party's case

Case Law:

• K.K. Velusamy v. N. Palanisamy (2011) 11 SCC 275: Power under Rule 17 should
not be used to fill omissions in evidence

PART 20: JUDGMENT AND DECREE - SECTION 33 & ORDER XX CPC

Section 33: Judgment and Decree

Text:

"The Court, after the case has been heard, shall pronounce judgment, and on such
judgment a decree shall follow."

Sequence:

1. Hearing completed

2. Judgment pronounced (reasons stated)

3. Decree follows (formal adjudication)

Order XX: Judgment and Decree

Order XX Rule 1: Judgment When Pronounced

"(1) The Court, after the case has been heard, shall pronounce judgment in open Court,
either at once, or, as soon thereafter as may be, by fixing a day for that purpose of which
due notice shall be given to the parties or their pleaders.

(2) Where the judgment is not pronounced at once it shall be pronounced within thirty
days from the date on which the hearing of the case was concluded, unless the Court,
for reasons to be recorded, extends the time, which shall in no case exceed sixty days.

(3) Where the Judge is prevented by death, transfer or other cause from pronouncing
judgment, the case shall be re-heard by his successor."

Time Limit:

• Preferably at once

• Maximum 30 days

• Extendable up to 60 days total

Re-Hearing:

If judge unable to pronounce, successor re-hears

Order XX Rule 2: Successor Judge May Pronounce Judgment**

"(2) The Court may, in its discretion, determine the case on the original evidence
recorded by the former Judge, without re-hearing the case, or may re-hear the case."

Discretion: Successor may pronounce on original evidence or re-hear

Order XX Rule 3: Judgment Unsigned or Amendment**

"The Court may at any time before the judgment is signed amend or add to the grounds
of judgment."

Amendment Before Signing:

Judgment can be amended before signing

After Signing:

Only under Sections 151, 152 (clerical/arithmetical errors)

Order XX Rule 4: Contents of Judgment**

"(1) In suits in Small Cause Courts, it shall be sufficient if the judgment states the points
for determination and the decision thereon.

(2) In other suits the judgment shall contain:—

(a) a concise statement of the case;

(b) the points for determination;

(c) the decision thereon;

(d) the reasons for such decision; and

(e) where the decree follows from such decision, the relief, if any, to which the plaintiff is
entitled."

Contents:

• Statement of case

• Issues

• Decisions on issues

• Reasons

• Relief

Order XX Rule 5: Court's Decision on Each Issue**

"The Court shall state its finding or decision, with the reasons therefor, upon each issue
separately, unless the finding upon any one or more of the issues is sufficient for the
decision of the suit."

Separate Findings: On each issue (unless one issue disposes suit)

Order XX Rule 6: Contents of Decree**

"(1) The decree shall agree with the judgment. It shall contain the number of the suit,
the names and descriptions of the parties, and their registered addresses, and shall
specify clearly the relief granted or other determination of the suit.
(2) The decree shall also state the amount of costs incurred in the suit, and by whom, or
out of what property and in what proportions such costs and the costs of executing the
decree are to be paid."

Decree Contents:

• Number of suit

• Parties' names, descriptions, registered addresses

• Relief granted

• Costs

Order XX Rule 6A: Date by Which Decree to Be Drawn Up**

"The decree shall be dated and signed by the Judge on the day on which the judgment
was pronounced and, where this is not practicable, it shall be dated as of the day on
which the judgment was pronounced and shall be signed as soon thereafter as
practicable, and in any event, within fifteen days from the date on which the judgment is
pronounced, and where the Judge is prevented from signing it within that period, it shall
be signed by his successor."

Time Limit for Drawing Decree:

• Within 15 days of judgment

• If not possible, successor signs

Order XX Rule 7: Date of Decree**

"The decree shall bear date the day on which the judgment was pronounced."

Date: Decree dated on judgment pronouncement day (not signing day)

Order XX Rule 20: Certificate of Final Decree**

After final decree in preliminary decree suits, certificate endorsed

PART 21: INTEREST - SECTION 34 CPC

Section 34: Interest

Section 34(1):
"Where and in so far as a decree is for the payment of money, the Court may, in the
decree, order interest at such rate as the Court deems reasonable to be paid on
the principal sum adjudged, from the date of the suit to the date of the decree, in
addition to any interest adjudged on such principal sum for any period prior to the
institution of the suit, with further interest at such rate not exceeding six per cent per
annum as the Court deems reasonable on such principal sum, from the date of the
decree to the date of payment, or to such earlier date as the Court thinks fit:

Provided that where the liability in relation to the sum so adjudged had arisen out of
a commercial transaction, the rate of such further interest may exceed six per cent per
annum, but shall not exceed the contractual rate of interest or where there is no
contractual rate, the rate at which moneys are lent or advanced by nationalised banks in
relation to commercial transactions."

Types of Interest:

A. Pendente Lite Interest (During Suit):

• From date of suit to date of decree

• At rate court deems reasonable

• No maximum limit

B. Post-Decree Interest (After Decree):

• From date of decree to date of payment

• Maximum 6% per annum (general)

• May exceed 6% for commercial transactions (but not exceed contractual rate or
bank rate)

C. Pre-Suit Interest:

On principal for period before suit (as per contract/law)

Section 34(2): Deemed Refusal of Further Interest**

"Where such a decree is silent with respect to the payment of further interest on such
principal sum from the date of the decree to the date of payment or other earlier date,
the Court shall be deemed to have refused such interest, and a separate suit therefore
shall not lie."

Silence on Further Interest:

Deemed refusal; no separate suit

Explanation II: Commercial Transaction**

"For the purposes of this section 'commercial transaction' means any transaction
carried on by a person, whether or not he is a trader, and includes a transaction in the
course of his trade or profession or any transaction by or with a bank."

Wide Definition: Includes all business/professional transactions

PART 22: COSTS - SECTIONS 35, 35A, 35B CPC

Section 35: Costs

Section 35(1):

"Subject to such conditions and limitations as may be prescribed, and to the provisions
of law for the time being in force, the costs of and incident to all suits shall be in
the discretion of the Court, and the Court shall have full power to determine by whom or
out of what property and to what extent such costs are to be paid, and to give all
necessary directions for the purposes aforesaid."

Discretion: Court has wide discretion on costs

Power to Determine:

• By whom costs paid

• Out of what property

• To what extent

Section 35(2): Costs Shall Follow the Event**

"Where the Court directs that any costs shall not follow the event, the Court shall state
its reasons in writing."

General Rule: "Costs follow the event" – Successful party awarded costs

Exception: If costs not awarded to successful party, reasons must be recorded

Purpose:

• Compensate successful party

• Deter frivolous litigation

Section 35A: Compensatory Costs for False or Vexatious Claims or Defenses

Section 35A(1):

"If any suit or defence is filed or instituted frivolously or vexatiously, the Court may, at
any stage of the proceedings or at the conclusion thereof, after giving the party against
whom such order is proposed to be made an opportunity of being heard, direct the party
who has filed such suit or defence to pay compensatory costs to the other party."

Section 35A(2):

"The compensatory costs under sub-section (1) shall not exceed three thousand
rupees and shall be in addition to any other costs that may be awarded to that party."

Compensatory Costs:

• For frivolous/vexatious suit/defense

• Maximum ₹3,000

• In addition to regular costs

Purpose: Deter abuse of process

Section 35B: Costs for Causing Delay

Section 35B(1):

"If, on any date fixed for the hearing of the suit or any stage thereof, any party to the
suit—

(a) fails to take any step which he was required by or under this Code to take on that
date, or

(b) obtains an adjournment for taking such step or for producing evidence or on any
other ground,

the Court, may, for reasons to be recorded, direct such party to pay to the other party
such costs as would be reasonably sufficient to reimburse the other party in respect of
the expenses incurred by him in attending the Court on that date, and if more than one
adjournment is sought, the Court may order the party seeking adjournment to make
payment of costs for every adjourned hearing."

Section 35B(2):

"The payment of costs referred to in sub-section (1) shall be a condition precedent to

the further prosecution of the suit or the defence, as the case may be, by the party
directed to pay the same; and where such payment is not made, the suit or the defence
shall be dismissed or struck off."

Costs for Delay:

• For failing to take required step

• For obtaining adjournment

• Costs paid as condition precedent to continue suit/defense

• Non-payment = dismissal/striking off defense

Purpose: Discourage delaying tactics

Case Law on Costs:

Salem Advocates Bar Association v. Union of India (2005 SC):

"Costs must include actual reasonable costs including:

• Time spent

• Transportation

• Lodging

• Court fees

• Lawyer's fees

• Typing charges

• Other incidental litigation expenses"

Realistic Costs: Courts encouraged to award realistic costs, not nominal amounts

CONCLUSION

These comprehensive notes cover all essential definitions, sections, orders, and case
laws from the Civil Procedure Code, 1908, as required for your end-term examination.
Master these provisions thoroughly and supplement with bare sections of CPC for
complete preparation.

Key Areas for Revision:

1. Definitions: Decree, Judgment, Order, Plaint, Written Statement

2. Jurisdictional Provisions: Sections 6, 9, 15-24

 3. Res Sub Judice & Res Judicata: Sections 10, 11

4. Foreign Judgments: Sections 13, 14

5. Institution & Parties: Section 26, Order I, Order IV

6. Pleadings: Orders VI, VII, VIII

7. Summons & Appearance: Order V, Order IX

8. Examination & Discovery: Orders X, XI, XII

9. Issues & Trial: Orders XIV, XVI, XVI-A, XVIII

10. Judgment & Costs: Section 33, Order XX, Sections 34, 35, 35A, 35B

Study Strategy:

• Read bare provisions alongside these notes

• Focus on essential elements and conditions

• Memorize important case laws and their holdings

• Practice writing answers with section references

• Use comparative tables for better retention

END OF NOTES