Civil Procedure code ( CPC )

MODULE 1:
Introduction (Section 2-Section 25)
1. Definitions
2. Concepts: Res-sub judice, Res judicata, set off, counterclaim
3. Essentials of a suit
4. Cause of action and jurisdiction and its kind
5. Place of suing

MODULE 2:
Of suits (Section 26-Section35, Order I-Order XX)
2.1 Parties to a suit (Order 1-Order III)
Death, marriage and insolvency of parties (Order XXII)
2.2 Institution of a suit (Order IV and V)
2.3 Pleadings, plaint and written statement (Order VI- Order VIII)
2.4 Appearance of parties and consequence of non-appearance (Order IX)
2.5 Examination of Parties, Interrogatories, Discovery and inspection, Admissions, documents (Orders X, XI,
XII and XIII)
2.5 Framing of issues, Disposal (Order XIV, XV)
2.6 Trial, Summons, Hearing of suit, evidence, judgment and decree and costs (Order V, Order XVI-Order
XXA)
2.7 Withdrawal and adjustment of suits (Order XXIII)
2.8 Special suits - Orders XXVII to XXXIV

MODULE 3:
Execution and other procedures (Orders XXI
3.1 Meaning of execution
3.2 Mode of execution and stay of execution (Order XXI)
3.3 Arrest, detention and attachment (Order XXI and XXXVIII)
3.4 Incidental proceeding. Payment into court, security costs and commissions (Orders XXIV. XXV and XXVI)
3.5 Interim orders, Temporary injunction (Order. XXXIX)
3.6 Interpleader, Special case and Summary procedure (Order XXXV, XXXVI and XXXVII)

MODULE 4:
Receivers, Appeals and other procedures and Law of Limitation
4.1 Appointment of Receivers (Order XV)
4.2 Appeals, reference, review, revision (Order XLI -XLVII)
4.3 Miscellaneous, Chartered HCs, Provincial and Presidency Small Causes Courts (Orders XLVIII-LI)
4.4 Object and features of Limitation Act, 1963
4.5 Bar of limitation (S.3-5)
4.6 Legal disability (S.6-10)
4.7 Computation of period of limitation (S.12-24)
4.8 Effect of acknowledgment in writing and part-payment (S. 18-20)
4.9 Acquisition of ownership by possession (S. 25-27)

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MODULE 1:
Introduction (Section 2-Section 25)
The Civil Procedure Code, 1908 (CPC) is the main procedural law governing the functioning of
civil courts in India. It provides a uniform set of rules and procedures to be followed in civil cases,
ensuring fair trial, speedy justice, and proper enforcement of rights.

The Code was enacted on 21st March, 1908, received the assent of the Governor-General of
India on 21st March, 1908, and came into force on 1st January, 1909.
It extends to the whole of India except the State of Jammu and Kashmir (at the time of
enactment; now applicable after constitutional changes). The CPC is divided into two parts:
1. Sections (1–158) – laying down the general principles.
2. Orders and Rules (First Schedule) – dealing with detailed procedures.
The Civil Procedure Code, 1908 (CPC) is the principal legislation that lays down the procedure to
be followed in civil courts in India. Substantive laws like the Indian Contract Act, Hindu Marriage Act,
or Transfer of Property Act define the rights and liabilities of parties, while the CPC provides the
machinery for enforcement of those rights and obligations.
In simple terms, substantive law determines what the rights are, and procedural law (like CPC)
determines how those rights are enforced through courts.

Purpose of CPC
1. To provide a uniform procedure for the conduct of civil cases.
2. To ensure fair and impartial justice.
3. To avoid multiplicity of proceedings and unnecessary delay.
4. To balance the rights of plaintiffs and defendants in civil litigation.
5. To make the judicial process more organized and systematic.

Structure of CPC
 Parts & Sections – The CPC consists of 12 parts and 158 sections dealing with general
principles, jurisdiction, res judicata, foreign judgments, etc.
 Schedules & Orders – It also contains a First Schedule divided into 51 Orders and Rules,
which provide detailed procedures (like filing of suits, written statements, issues, summons,
etc.).

Scope & Application

 The CPC applies to all civil courts in India, except where special procedures are provided by
other laws.
 It governs proceedings of civil nature (disputes relating to property, contracts, matrimonial
rights, etc.).
 It does not apply to criminal matters, revenue proceedings, or tribunals unless specifically
provided.

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In essence, the Civil Procedure Code, 1908 is a procedural law that ensures the smooth
functioning of civil courts, providing litigants with a fair chance to present their case and obtain
justice in an orderly manner.

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

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

Foreign court
Section 2(5) "foreign Court" means a Court situated outside India and not established or continued
by the authority of the Central Government.

Foreign judgement
Section 2(6) "foreign judgment" means the judgment of a foreign Court.

(1) “code” includes rules;

(2) “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 and may be either preliminary or final. It shall be deemed to
include the rejection of a plaint and the determination of any question within *** section 144, but
shall not include—
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.—A decree is preliminary when further proceedings have to be taken before the suit
can be completely disposed of. It is final when such adjudication completely disposes of the suit. It
may be partly preliminary and partly final;
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(3) “decree-holder” means any person in whose favour a decree has been passed or an order
capable of execution has been made;

(4) “district” means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction
(hereinafter called a “District Court”), and includes the local limits of the ordinary original civil
jurisdiction of a High Court;

[(5) “foreign Court” means a Court situate outside India and not established or continued by the
authority of the Central Government;]

(6) “foreign judgment” means the judgment of a foreign Court;

(7) “Government Pleader” includes any officer appointed by the State Government to perform all
or any of the functions expressly imposed by this Code on the Government Pleader and also any
pleader acting under the directions of the Government Pleader;

[(7A) “High Court” in relation to the Andaman and Nicobar Islands, means the High Court in
Calcutta;

(7B) “India”, except in sections 1, 29, 43, 44, 6 [44A,] 78, 79, 82, 83 and 87A, means the territory of
India excluding the State of Jammu and Kashmir;]

(8) “Judge” means the presiding officer of a Civil Court;

(9) “judgment” means the statement given by the Judge of the grounds of a decree or order;

(10) “judgment-debtor” means any person against whom a decree has been passed or an order
capable of execution has been made;

(11) “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 and where a
party sues or is sued in a representative character the person on whom the estate devolves on the
death of the party so suing or sued;

(12) “mesne profits” of property 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;

(13) “movable property” includes growing crops;

(14) “order” means the formal expression of any decision of a Civil Court which is not a decree;

(15) “pleader” means any person entitled to appear and plead for another in Court, and includes an
advocate, a vakil and an attorney of a High Court;

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(16) “prescribed” means prescribed by rules;

(17) “public officer” means a person falling under any of the following descriptions, namely :—
(a) every Judge;
(b) every member of 1
[an All-India Service];
(c) every commissioned or gazetted officer in the military [naval or air] forces of [the Union] *** while
serving under the Government;
(d) Every officer of a court of Justice whose duty it is, as such officer, to investigate or report on any
matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose
of any property, or to execute any judicial process, or to administer any oath, or to interpret, or to
preserve order, in the Court, and every person especially authorised by a court of Justice to perform
any of such duties;
(e) every person who holds any office by virtue of which he is empowered to place or keep any
person in confinement;
(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give
information of offences, to bring offenders to justice, or to protect the public health, safety or
convenience;
(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on
behalf of the Government, or to make any survey, assessment or contract on behalf of the
Government, or to execute any revenue process, or to investigate, or to report on, any matter
affecting the pecuniary interests of the Government, or to make, authenticate or keep any document
relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the
protection of the pecuniary interests of the Government; and
(h) every officer in the service or pay of the Government, or remunerated by fees or commission for
the performance of any public duty;

(18) “rules” means rules and forms contained in the First Schedule or made under section 122 or
section 125;

(19) “share in a corporation” shall be deemed to include stock, debenture stock, debentures or
bonds; and

(20) “signed”, save in the case of a judgment or decree, includes stamped.

2. Concepts: Res-sub judice, Res judicata, set off, counterclaim

Res Judicata
Res Judicata, a phrase of Latin origin, pertains to a legally settled case. The concept of res judicata
serves to bar any further litigation on the same matter involving the same parties, once a case has
been conclusively resolved and a final judgment has been delivered, leaving no room for any further
appeals.

Res means a subject matter, and judicata means adjudged. The doctrine of res judicata is adopted
from 'res judicata pro veritate accipitur' which states that once the decision has been made, it must
be accepted as true and final it developed from English common law. The common law system was
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developed from the fundamentalidea of judicial uniformity. Res judicata was initially adopted from
common law into the Code of Civil Procedure, and later it was adopted into the indian legal system

Section 11 of the CPC deals with the provision of res judicata

According to this Section, a court can not entertain any suit which has been settled on similar facts
and issues as those that were directly or subsequently dealt with in a former suit. The proceedings
took place in a competent court under a similar title

The doctrine, which is also known as claim preclusion, prohibits a party from starting new legal
actions against the same parties over the same facts and grounds Several times, a party initiates
the proceedings again just to harass the other party Hence, to prevent the repentance of filing a
similar suit, this doctrine is applicable.

In Daryao and Others The State Of U P and Others(2961), the Supreme Court observed that the
principle of res judicate, which states that litigation must conclude, is a fundamental principle shared
by all courts and does not merely apply to records.
In Lal Chand (Dead) By Ra & Ors v. Radhe Kishan (1976), the Supreme Court stated that once the
final decision is made earlier, judges consider it as the res judicata in the present suit that is filed
between the same parties

Res Sub Judice

Res Sub judice, a Latin maxim meaning “under judgment,” is a legal principle rooted in public policy.
It prohibits a plaintiff from initiating two simultaneous claims on the same subject matter, thereby
preventing the possibility of conflicting rulings from different courts. The theory of Res Sub judice
serves the purpose of avoiding redundant legal processes and ensuring consistency in judicial
decisions.

The term 'res' means matter, and sub judice' means under consideration. Hence, the doctrine
means a matter which is still under consideration Section 10 of the CPC says that no court can
initiate such proceedings between the same parties and the same issues which were directly or
subsequently in question in the previous suit if the previous suit is stili pending in the competent
court. The doctrine of res sub judice aims to stay the proceedings when two or more cases are filed
in the same court between the same parties. The objective of the doctrine is to avoid wasting the
time in court and avoid contradictory decisions in the same suit it also protects the parties from
unnecessary court proceedings and harassment by other parties. The doctrine is applicable to a trial
of the suit, appeals, and revision. It does not prevent a court. from issuing temporary orders for the
granting of an injunction or a stay

In Escorts Conat. Equipment Ltd v Action Conat. Equipments Ltd (1998), the Delhi High Court
observed that to invoke Section 10 of the Code, there must be a matter at issue and the parties are
the same in a former and subsequent suit a former lawsuit that was filed in a court with the
jurisdiction to grant the desired relief, whether it was in the same court or another.

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Res Judicata and Res Sub Judice
The idea of res sub judice is elucidated in Section 10 of the Civil Procedure Code, 1882, whereas
the concept of res judicata is discussed in Section 11 of the same CPC. Section 10 sets forth the
provision that cases should be stayed while they are under consideration or adjudication by a court.

In contrast, Section 11 outlines that the rule applies to a case that has already been conclusively
decided. It prohibits the re-trial of a suit or an issue that involves the same subject matter that has
already been settled in previous litigation.

Key Difference Between Res Judicata and Res Sub Judice

Meaning and Definition
Res judicata
Res judicata is derived from the Latin phrase “res judicata pro veritate accipitur,” which means a
matter adjudged is accepted as true and final. It originated in English common law, which
emphasised the idea of judicial uniformity. The doctrine was initially incorporated from common law
into the Code of Civil Procedure and later adopted into the Indian legal system. Section 11 of the
CPC deals specifically with the provision of res judicata.

Under this doctrine, a court cannot entertain any suit that has already been adjudicated on similar
facts and issues in a previous suit. The proceedings must have taken place in a competent court
under a similar title. The doctrine, also known as claim preclusion, prevents parties from initiating
new legal actions against the same parties over the same facts and grounds. It aims to prevent the
abuse of legal processes and harassment by parties who might file similar suits multiple times.

In the case of Satyadhyan Ghosal and Others v. Sm. Deorajin Debi and Another (1960), the
Supreme Court emphasised that res judicata ensures the final settlement of a matter. Once a matter
has been resolved between two parties in a single proceeding, whether on a question of fact or law
and the decision is final (either due to no appeal filed or appeal rejected), neither party can raise the
same issue in any subsequent suit or proceeding.

Similarly, in Daryao and Others v. The State Of U. P. and Others (1961), the Supreme Court
reaffirmed that the principle of res judicata, which demands that litigation must conclude, is a
fundamental principle applied by all courts and it is not limited to any specific records.

Furthermore, in Lal Chand (Dead) By [Link]. & Ors v. Radha Kishan (1976), the Supreme Court
asserted that once a final decision has been made earlier, judges consider it as the res judicata in
the present suit between the same parties. This means that the matter already adjudicated is
considered final and binding in subsequent legal actions involving the same parties.

The doctrine of res judicata is founded on several maxims, which are as follows:
1. Nemo debet lis vexari pro eadem causa:
This maxim states that no person is tied twice in a similar kind of suit It is applicable in both types of
suits, civil and criminal to put an end to the litigation process. Article 20(2) of the Indian Constitution
also says that no person shall be prosecuted and punished twice.

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2. Interest republicae ut sit finis litium
The meaning of the maxim is that there should be an end to litigation. since it is in the interests of
the nation. The meaning of this maxim is that there should be an end to litigation because it serves
the interests of the nation. Continuously allowing parties to relitigate the same issues can lead to a
waste of judicial resources and can disrupt the social order. Res judicata helps in achieving judicial
certainty and stability in legal matters.

3. Re judicata pro veritate occipitur:

It means a judicial decision must be accepted as it [Link] maxim emphasises that a judicial
decision must be accepted as it stands. Once a matter has been adjudicated and a final judgment
rendered, it should be considered as the truth. The purpose of res judicata is to prevent parties from
re-litigating the same issues and to give conclusive effect to the prior decision.

Res sub judice

The term ‘res’ in Latin means matter and ‘sub judice’ means under consideration. Therefore, the
doctrine of res sub judice refers to a matter that is still under consideration by the court. Section 10
of the Civil Procedure Code (CPC) states that no court can initiate proceedings between the same
parties on the same issues that are directly or subsequently in question in a pending suit before a
competent court.

The objective of the doctrine is to stay the proceedings when multiple cases are filed in the same
court involving the same parties and issues. It aims to avoid wasting the court’s time, prevent
contradictory decisions and protect parties from unnecessary court proceedings and harassment.

The doctrine of res sub judice is applicable to trials, appeals and revisions. However, it does not bar
a court from issuing temporary orders like injunctions or stays.
In the case of Escorts Const. Equipment Ltd v. Action Const. Equipments Ltd (1998), the Delhi
High Court stated that to invoke Section 10 of the CPC, certain conditions must be met, including
having a matter at issue and the same parties involved in both the previous and subsequent suits.
Additionally, the previous suit must have been filed in a court with the jurisdiction to grant the
desired relief.

In Indian Bank v. Maharashtra State Co-Operative Marketing Federation (1998), the Supreme
Court mentioned that the purpose of the doctrine of res sub judice is to avoid contradictory rulings
on the same subject matter by preventing courts with jurisdiction from simultaneously trying two
parallel matters.

In the case of Arumugha Udayar Rep. by Power v. Lakshmi (2005), the Madras High Court
outlined four essential conditions to invoke Section 10 of the CPC, which include the matter at issue
in the second lawsuit being significantly and directly related to the first lawsuit, the involvement of
the same parties or those acting on their behalf, the relief sought in the second lawsuit being
admissible in the court where the initial lawsuit was filed and the previous suit must be pending
before a competent court.

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Purpose
Res Judicata
 Restricts re-litigation and prevents the same matter from being tried again between the same
parties.
 Saves time and resources of the court by avoiding repeated trials on the same issue.
 Provides protection to the defendant from repeated harassment and potential double
jeopardy.
 Brings finality to the matter and puts an end to the litigation process.
 Avoids conflicting judgments and promotes consistency in judicial decisions.

Res Sub Judice

 Saves the judiciary’s time by preventing unnecessary suits.
 Allows the plaintiff to address all issues and facts against the same defendant in a single suit.
 Avoids contradictory decisions on the same matter by preventing courts with concurrent
jurisdiction from hearing two parallel lawsuits.
 Protects the defendant from facing multiple claims on the same subject matter.
 Prevents confusion that could arise from multiple ongoing suits on the same issue.

Essentials
Res Judicata
 One former and one subsequent suit must be filed.
 The matter in the subsequent suit must be directly and substantially related to the matter in
the former suit.
 The parties involved in the subsequent suit must be the same or similar to the parties in the
former suit.
 The titles of both suits should be the same or similar.
 The suit must be filed in a competent jurisdiction.
 The court must have previously heard and decided the issue that is directly and substantially
in question in the subsequent suit.

Res Sub Judice

 There must be two civil suits between the same parties.
 The former suit is pending before the competent court when the subsequent suit is brought.
 The subsequent suit is filed under a similar title to the former suit.
 Section 10 of the Code of Civil Procedure does not apply if the suit is pending in a foreign
court.
 Section 10 applies if a subsequent application is filed before the Tahsildar while the suit is
pending before the court.
 The date of the presentation of the plaint is considered for the institution of the suit and the
appeal is also included in the suit.
 The court must have the inherent power to stay the proceedings.
 A decree passed in violation of Section 10 will be null and void.
 The parties have the right to waive their rights under Section 10.
 The court has the power to pass interim orders.

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In Manohar Lal Chopra v. Rai Bahadur Rao Raja Seth Hiralal (1961) and Dr. Guru Prasad
Mohanty and Ors. v. Bijoy Kumar Das (1984), supports and emphasises the importance of
adhering to the requirements of Section 10 and the objective of preventing concurrent courts from
hearing two parallel lawsuits on the same claim, issue and relief simultaneously.

Exceptions
Res judicata
The doctrine of res judicata prevents parties from reinitiating litigation; however, there are specific
circumstances when this doctrine does not apply:
 When the decree and order have been obtained through fraud or misrepresentation of facts
or issues.
 When the judgment is not pronounced on the merits of the case.
 When the special leave petition was dismissed without a proclamation or determination of the
judgment.
 When the subsequent lawsuits have a different cause of action, the court cannot dismiss it
based on res judicata.
 When the court lacked competent jurisdiction in the former suit.
 When there is a question of law involved.
 When an interlocutory order was passed in a former suit.
 If there has been an amendment to the existing law that grants new rights to the party, then
the doctrine will not apply.
 When the suit was dismissed by default.
 If the party does not raise a plea for res judicata.

Res sub judice

The doctrine of res sub judice does not apply in certain cases, including:
 When the claims in each suit are unique and distinct from one another.
 When there are both common and unique issues in the cases, the doctrine may not apply.
 When different issues are involved between the same parties.
 It is not necessary to raise all issues from the earlier suit in the later litigation for Section 10
to be applicable.

Important Difference Between Res Judicata and Res Sub Judice

Here’s table summarising the differences between Res Judicata and Res Sub Judice:
Aspect Res Judicata Res Sub Judice

Meaning “Matter adjudged and accepted as final” “Matter still under consideration”

To avoid parallel proceedings and save

Purpose To prevent re-litigation and bring finality
time

Applicability After a case has been conclusively decided When a case is still pending before a court

Key Maxims Nemo debet lis vexari pro eadem causa Interest republicae ut sit finis litium

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 Interest republicae ut sit finis litium Res judicata pro veritate accipitur

Conditions One former and one subsequent suit filed Two civil suits between the same parties

Former suit pending before competent

Matter in subsequent suit directly related
court

Parties in subsequent suit same/similar Subsequent suit filed under similar title

Section 10 does not apply to suits pending

Titles of both suits same/similar
in foreign courts

Section 10 applies if subsequent application

Suit filed in competent jurisdiction
before the Tahsildar

Court previously heard and decided issue in Date of plaint presentation considered for
subsequent suit institution of suit
Conclusion
The main difference between the Res Judicata and Res Sub Judice lie in their applicability,
conditions and exceptions. Res Judicata is applicable when a case has reached a final decision,
while Res Sub Judice is relevant when a case is still pending before a court.
Res Judicata requires one former and one subsequent suit, parties and titles to be similar, whereas
Res Sub Judice necessitates two civil suits involving the same parties and a similar title.
Additionally, various exceptions exist for both doctrines, allowing certain circumstances where they
may not apply.

set off
What is Set-Off in CPC?
Set-Off is a legal concept that allows the defendant to reduce or eliminate their debt or claim by
raising a counterclaim against the plaintiff. In other words, it enables the defendant to offset part of
the original claim. When the plaintiff and defendant owe each additional money, one debt can be
used to settle the other. The defendant can use set-off in CPC as a defence in a lawsuit brought by
the plaintiff.

Illustration:
A filed a suit against B claiming that he had taken Rs. 50,000 from him and the amount
has become due. Now, B has also claimed that A has taken Rs. 20,000 from B and the amount
is due as a debt. In such a scenario, both parties are mutually indebted to each other, and they
both have to pay off the debts due to each other. Instead of filing a fresh suit altogether, B files a
set-off claim along with the written statement in response to the plaint filed by A for those Rs.
20,000 due.

Meaning of set off

The concept of set off, as stated hereinbefore, is a claim setup against the plaintiff which has the
effect of reduction or discharge of a party's debt or claim. In other words, it is a cross-claim which

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partly offsets the original claim. Where there are mutual debts between the plaintiff and the
defendant, one debt maybe settled against the other. It is a plea which is available to the defendant
for his defence in a suit instituted by the plaintiff
In B. Seshaiah v. B. Veerabhadrayya, the Andhra High Court expressed the concept as "the
extinction of debts of which two persons are reciprocally debtors to one another by the credits of
which they are reciprocally creditors to one another The same doctrine as provided under Order VIII
Rule 6 of CPC allows the defendant to settle the reciprocal claims against the plaintiff without the
need for filing a different suit. This helps in settling the reciprocal claims of the plaintiff and
defendant in the same suit

In the case of B. Seshaiah v. B. Veerabhadrayya, the Andhra High Court explained set-off as
“cancelling debts between two individuals who owe each other money.” Similarly, under Order VIII
Rule 6 of the Civil Procedure Code (CPC), the defendant can resolve reciprocal claims against the
plaintiff without filing a separate lawsuit. This allows for the resolution of the plaintiff’s and
defendant’s claims within the same legal case.

Definition of Set-Off under Order VIII Rule 6 of CPC

According to Order VIII Rule 6, the provision of set-off is outlined as follows:
In a lawsuit where the plaintiff is seeking to recover money, the defendant can assert a set-off if they
have an established and legally recoverable sum of money owed to them by the plaintiff. This
amount should not exceed the monetary limits of the court’s jurisdiction.

Additionally, for the defendant to present a set-off, both parties must have the same roles in the
lawsuit as they do in the plaintiff’s claim.

Essentials of Set-Off under CPC

To summarize, the conditions that need to be met for a defendant to invoke set-off against the
plaintiff are as follows:
 The plaintiff’s lawsuit should be aimed at recovering a monetary amount.
 The sum of money to be recovered must be determinable.
 The defendant must have a legal right to recover the same amount from the plaintiff.
 The sum sought to be recovered should be within the court’s jurisdictional limits.
 The defendant and the plaintiff must have the same roles in the lawsuit.

Types of set-off under CPC

The law recognizes two types of set-offs:
 legal set-off, which is explicitly provided under Order VIII Rule 6 of the Civil Procedure Code
(CPC), and
 equitable set-off, which is based on principles of fairness.

Legal set-off
Legal set-off in CPC has specific requirements, as discussed earlier. It is limited to the scope of the
original lawsuit and cannot introduce new elements. It allows the defendant to assert an
independent cause of action, and the claims of both parties are adjusted in favour of the party with
the higher amount.

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If A files a lawsuit against B seeking compensation for trespass, and B holds a promissory note
worth Rs. 1000 from A, B can claim a set-off by deducting that amount from any sum that A may
recover in the lawsuit.
This is possible because all the requirements for set-off under Order VIII Rule 6 are fulfilled. Both
amounts become definite pecuniary demands once A recovers.

Difference between Legal Set-off and Equitable Set-off in CPC

Legal Set-Off: Clear and Determined Sum
Legal set-off must pertain to a determined sum of money, whereas equitable set-off can be applied
even for an undetermined sum.

Right to Claim vs. Discretionary Consideration

Legal set-off is a right that a party can claim, and the court must consider and resolve it. In contrast,
equitable set-off in CPC cannot be claimed as a right, and the court can refuse adjudication.

Transaction Requirement
Legal set-off does not necessitate that the cross-demands arise from the same transaction. On the
other hand, equitable set-off can only be allowed when the cross-demands originate from the same
transaction.

Legally Recoverable and Time-Barred Claims

The amount claimed must be legally recoverable and not time-barred for legal set-off. In contrast, a
claim made through equitable set-off can still be considered even if it is time-barred, mainly when a
fiduciary relationship exists between the parties.

Court Fees
Legal set-off in CPC requires the payment of court fees, while no court fees are necessary for
equitable set-off.
Aspect Legal Set-Off Equitable Set-Off

Can be an undetermined sum of

Amount Clearly determined sum of money
money

Right to Claim Can be claimed as a right Cannot be claimed as a right

Court has the discretion to refuse

Court’s Discretion Court is obligated to consider
adjudication

Not necessary to arise from the same Must arise from the same
Transaction Requirement
transaction transaction

Amount claimed can be time-

Legally Recoverable Amount claimed must be legally recoverable
barred

Court Fees Court fees are required No court fees are necessary

13
Limitation
The set-off claim in CPC can be seen as a counter-lawsuit initiated by the defendant against the
plaintiff. Set-off is considered a separate legal action subject to the law of limitation.

In the case of Jitendra Nath Ray v. Jnanada Kanta Das Gupta, the Court clarified that the rules
and regulations regarding filing a lawsuit also apply to set-off cases.
Court-fee

According to Article I, Schedule I of the Court Fees Act 1870, court fees apply to set-off cases. This
is because set-off in CPC involves the defendant raising a claim against the plaintiff, which is
considered a “plaint” and subject to the payment of court fees.

Effect of Set-Off under CPC

When a defendant asserts a set-off in CPC, they essentially take on the role of a plaintiff in relation
to the amount they claim. Consequently, there are two separate lawsuits: one initiated by the
plaintiff against the defendant and the other initiated by the defendant against the plaintiff. These
two suits are consolidated and tried together.
If the plaintiff does not appear in Court, leading to the dismissal of their suit due to default, or if the
plaintiff voluntarily withdraws their suit, or if the plaintiff fails to substantiate their claim during the
trial resulting in the dismissal of their suit, it does not impact the defendant’s claim for set-off in
CPC.
The defendant can still pursue their claim, and if they can prove it, a decree may be issued in their
favour.

Conclusion
Set-off is a vital concept within the Civil Procedure Code framework. It enables defendants to
counterclaim against plaintiffs, leading to the reduction or discharge of debts. The CPC recognizes
two types of set-off: legal set-off and equitable set-off.
Legal set-off requires a determined sum of money, can be claimed as a right, and follows specific
requirements. Equitable set-off offers flexibility when legal set-off conditions are not met, although
its application depends on the Court’s discretion.

Counterclaim
Introduction
The concept of a counterclaim is an important aspect of civil litigation, providing defendants the
opportunity to assert their own claims in response to the plaintiff’s action. Under the Code of Civil
Procedure (CPC), counterclaims help streamline the judicial process by allowing parties to resolve
all their disputes in a single suit, thereby preventing the need for multiple legal proceedings.
This article provides an in-depth analysis of the counterclaim provisions under the CPC, focusing on
its definition, procedural aspects, practical application, and significant differences from set-offs.

What is Counterclaim?
A counterclaim is a claim made by the defendant in response to a plaintiff’s suit. In simple terms, it
allows the defendant to assert a separate legal claim against the plaintiff within the same suit. It is a
14
fundamental right given to defendants, enabling them to counteract the plaintiff’s demand for relief,
rather than merely defending themselves.

The introduction of counterclaims into Indian civil procedure law was a significant reform. Before
the CPC Amendment Act of 1976, there were no clear provisions for counterclaims. They were,
however, introduced through Rules 6A to 6G of Order 8, specifically to reduce the need for multiple
suits between the same parties and to ensure that all connected disputes are adjudicated together
in one forum.

Legal Framework and Statutory Provisions Related to Counterclaim in CPC

The provisions for counterclaims are primarily found in Order 8 Rule 6A to 6G of the Code of Civil
Procedure. These provisions came into existence through the CPC (Amendment) Act, 1976 as
part of an effort to modernise and simplify the litigation process in India.

Order 8 Rule 6A of the CPC defines a counterclaim as a claim made by the defendant against the
plaintiff in response to the plaintiff’s original claim. This claim may arise from the same cause of
action as the plaintiff’s suit or from another cause of action that is connected to the dispute. It is
treated as a cross-suit and is adjudicated alongside the main suit.

Key Features of Counterclaim

Independent Legal Action
A counterclaim is an independent action brought by the defendant against the plaintiff. It is not a
mere defence but a substantive legal claim. As such, it carries the same legal weight as the
plaintiff’s original suit. The defendant may seek remedies such as damages, recovery of property,
possession, or an injunction, depending on the nature of the counterclaim.

Same Cause of Action

A counterclaim must arise out of the same cause of action or be closely related to the plaintiff’s
claim. For example, if the plaintiff is suing the defendant for breach of contract, the defendant may
file a counterclaim for a different breach of contract between the same parties, provided it relates to
the same set of facts or transactions.

Judicial Economy
One of the primary objectives of introducing counterclaims was to reduce the multiplicity of legal
proceedings. By allowing defendants to assert their claims within the same suit, courts are able to
resolve all related disputes in a single judicial proceeding, which benefits both the parties and the
judiciary by saving time and resources.

When to File a Counterclaim?

The timing of filing a counterclaim is crucial, as it determines the legal standing of the defendant’s
claim. According to Order 8 Rule 6A(1) of the CPC, a counterclaim can be filed:
 Before or after the suit is filed, but before the defendant has filed their written statement; or
 Before the time limit for filing the written statement expires.

Additionally, the Supreme Court in the case of Ashok Kumar Kalra v. Wing Commander
Surendra Agnihotri (2002) held that a counterclaim could be filed only after the written statement

15
is filed but before the issues are framed. However, in extraordinary situations, counterclaims can be
allowed even after the issues have been settled to prevent multiple proceedings between the same
parties.

Procedural Aspects of Counterclaims

Modes of Filing a Counterclaim
The defendant can set up a counterclaim in three different ways:
1. Within the Written Statement: A counterclaim is typically included in the defendant’s written
statement (Order 8 Rule 1). This is the most common method of filing a counterclaim. The
defendant must ensure that the counterclaim is clearly stated and sufficiently pleaded as part
of the response to the plaintiff’s claim.
2. By Amendment of the Written Statement: If the counterclaim was not included in the initial
written statement, the defendant can seek the court’s permission to amend the written
statement and introduce the counterclaim. This is done under Order 6 Rule 17 of the CPC,
which allows amendments to be made with the court’s approval.
3. In Subsequent Pleading: If the counterclaim cannot be included in the initial written
statement or amended later, it may be presented in a subsequent pleading, subject to the
court’s permission under Order 8 Rule 9.

Who May File a Counterclaim?

The right to file a counterclaim is vested primarily in the defendant. However, the counterclaim can
also include relief sought against co-defendants in situations where their actions are connected to
the plaintiff’s original claim. It is important to note that counterclaims solely against co-defendants
without involving the plaintiff are not permitted under the CPC.

Limitation for Filing a Counterclaim

The limitation period for filing a counterclaim depends on the nature of the claim. In general, a
counterclaim must be filed within the same limitation period as the original suit, unless the court
grants an extension for exceptional reasons. The counterclaim may relate to claims arising either
before or after the filing of the original suit, as long as it is not barred by limitation.

Difference Between Set-Off and Counterclaim

While both set-off and counterclaim allow a defendant to assert a claim against the plaintiff, there
are important differences between them.
Aspect Set-Off Counterclaim

A statutory defence, reducing the plaintiff’s

Nature An independent cross-suit
claim

Purpose To reduce or extinguish the plaintiff’s claim To enforce the defendant’s own claim

Must arise out of the same transaction and Need not arise out of the same
Requirement
for an ascertained sum transaction or involve a fixed sum

Effect Merged with the plaintiff’s claim Treated as a separate claim

16
 Must be for a recoverable amount at the time Must be recoverable at the time the written
Timing
of the suit statement is filed

The demand usually does not exceed the The demand may exceed the plaintiff’s
Amount
plaintiff’s claim claim

In essence, a set-off is a claim made in the nature of a defence, which simply reduces the amount
owed by the defendant. A counterclaim, however, is a cross-action where the defendant asserts
their right for independent relief.

Purpose of Counterclaim
 To stop the multiplicity of suits.
 To save the time of the court of law.
 To make the civil procedure convenient for parties.
 To make the timely trials.

Time of Filing Counterclaim

 A counterclaim can be filed in three situations aligned below: -
 before or after filing the suit,
 before the defendant has delivered his defence,
 before the time limited for delivering his defence, expired.

Effect of a Counterclaim
The effect of a counterclaim is similar to that of a cross-suit. Once a counterclaim is filed, the court
may pass a final judgement addressing both the plaintiff’s suit and the defendant’s counterclaim.
 Survival of Counterclaim: Even if the plaintiff’s suit is withdrawn, discontinued, or
dismissed, the counterclaim survives and can proceed on its own merits. This ensures that
the defendant can still seek relief even if the plaintiff’s case collapses.
 Judgement on the Counterclaim: The counterclaim has the same standing as a plaint in
the eyes of the law. If the plaintiff fails to respond to the counterclaim, the court may pass a
judgement against the plaintiff. Similarly, if the defendant succeeds in the counterclaim, the
court may issue a decree in favour of the defendant.

Exclusion of a Counterclaim
Under Order 8 Rule 6C, the plaintiff can apply for the exclusion of the counterclaim if they
demonstrate that the issue raised in the counterclaim should be adjudicated in a separate suit. This
can be done before the court frames issues regarding the counterclaim.
The court will typically grant such an application only if it is convinced that the claim in the
counterclaim requires independent adjudication, and it does not form part of the same cause of
action as the plaintiff’s original suit.

Conclusion
The introduction of counterclaims under the CPC was a significant step towards enhancing the
efficiency of the judicial system. By allowing defendants to raise their claims in response to the

17
plaintiff’s suit, the legal system can resolve all related disputes in a single proceeding, saving time
and resources for both the parties and the courts.

3. Essentials of a suit
Introduction
 A suit is a proceeding by which an individual pursues that remedy which the law affords. It
is a civil proceeding instituted by the presentation of a plaint.
o Though the term suit has not been defined under the Civil Procedure Code, 1908
(CPC).
 According to Section 2(1) of The Limitation Act, 1963, Suit does not include an appeal or
an application.
 In Ethiopian Airlines v. Ganesh Narain Saboo (2011), the Supreme Court held that the
term suit is a general term that includes all actions which are to be taken by a person to
enforce a legal right that has been vested by law.

Essentials of a Suit
 The Opposing Parties:
o In every suit there must be at least one plaintiff and one defendant.
o There may be more than one plaintiff and more than one defendant where an act or
transaction proceeds from two or more persons or it affects two or more persons.

 The Cause of Action:

o Every suit must contain the cause of action which refers to the cause or the set of
circumstances which leads up to a suit.
 It consists of every fact which is necessary to be proved to entitle the plaintiff
to a decree.
o In Rajasthan High Court Advocates Association v. Union of India & Ors. (2000),
the SC held that the term cause of action had a judicially established meaning. It
refers to the conditions surrounding the violation of the right or the direct cause of the
conduct.

 The Subject Matter:

o It is the right or property claimed in the suit.
o The court adjudicates upon the right of the parties with regard to the subject matter
in a dispute.

 The Relief Claimed:

o The relief claimed should be stated specifically in the plaint. It may be stated in the
alternative also.
o The relief claimed must be one which the Court is able to grant.
o When a person is entitled to more than one relief in respect of the same cause of
action, he must sue for all reliefs

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4. Cause of action
In civil litigation, the concept of “Cause of Action” serves as the cornerstone upon which any legal
suit is built. The term “cause of action” refers to the set of facts or circumstances that give rise to a
legal claim, forming the basis for initiating a lawsuit. While the Code of Civil Procedure, 1908 (CPC)
does not explicitly define the term, it has been interpreted and elaborated upon through various
judicial precedents. In simple terms, a cause of action consists of two essential elements:
1. Cause: The existence of a legal right and its violation.
2. Action: The right to file a civil suit to seek redress for the violated right.
A plaintiff can bring forth a suit only if both elements are present. Without a valid cause of action, a
suit cannot proceed in court.

Legal Interpretation of Cause of Action

The Supreme Court of India has played a crucial role in defining and interpreting the concept of
cause of action through landmark cases. In Om Prakash Srivastava v. Union of India, the Court held
that the cause of action refers to conditions that justify a reaction in law due to the violation of a
right.

In the case of M/S. Sonic Surgical v. National Insurance Co. Ltd., it was observed that a cause of
action comprises the “bundle of facts” that entitle a party to seek relief from the court. It is a
prerequisite for a suit’s success, and the burden of proving it lies on the plaintiff.
Similarly, in Coke v. Gill, the court stated that cause of action includes every fact necessary for the
plaintiff to establish a legal claim in their favour.

Provisions of Cause of Action in CPC

The Civil Procedure Code mentions cause of action at various places, emphasising its significance
in initiating and sustaining a legal suit. Some key provisions include:

Section 20 of CPC
Section 20 of the CPC provides that a suit can be instituted in a court where the cause of action
wholly or partially arises. This provision establishes jurisdiction based on the occurrence of events
giving rise to the legal claim.

Order II Rule 2
This rule mandates that every plaint must include the cause of action. The plaintiff must ensure that
all claims arising from the same cause of action are included to prevent subsequent litigation on the
same grounds.

Order VII Rule 1

Order VII Rule 1 reaffirms the requirement of mentioning the cause of action in the plaint, ensuring
that courts can evaluate the legitimacy of the claim.

Order I Rule 8
This rule clarifies that multiple parties may be represented in a suit without necessarily having the
same cause of action.

19
Order II Rule 7
Order II Rule 7 deals with objections regarding misjoinder of causes of action and allows for their
rectification if they arise at an appropriate stage.

Characteristics of a Valid Cause of Action

A valid cause of action must possess certain key characteristics to be legally sustainable:
1. Legal Rights: The claim must be based on legally recognised rights, derived from statutes,
contracts, or legal precedents.
2. Legal Duties: The defendant must have owed a duty to the plaintiff, and the breach of such
duty should form the basis of the claim.
3. Injury: A recognisable injury, whether physical, financial, or reputational, must have been
suffered by the plaintiff.
4. Causation: A direct link must exist between the defendant’s actions and the injury sustained
by the plaintiff.
5. Damages: The injury must be quantifiable and identifiable, warranting compensation for the
harm caused.

Non-Disclosure of Cause of Action and Rejection of Plaint

Order VII Rule 11 of CPC provides grounds for rejecting a plaint at the initial stage if it fails to
disclose a valid cause of action. This provision empowers courts to prevent frivolous litigation and
save judicial resources. In Dahiben v. Arvindbhai Kalyanji Bhanusali, the Supreme Court ruled that if
no cause of action is disclosed, the suit should be dismissed to avoid wasting time.
Court’s Approach
 Courts generally adopt a liberal stance, allowing plaintiffs to amend their pleadings if the
cause of action is insufficiently stated.
 However, if it is found that the plaint is filed with malafide intent or lacks substance, the court
may reject it outright.
 It is essential to note that the court examines only the plaint and supporting documents
without considering the defendant’s written statement.

Res Judicata and Cause of Action

The doctrine of res judicata, as per Section 11 of CPC, prevents re-litigation of the same cause of
action once it has been adjudicated upon by a competent court. It ensures finality and prevents
unnecessary judicial burden.
In State of U.P v. Nawab Hussain, the court held that res judicata bars the reassertion of the same
cause of action to protect public policy interests and prevent the multiplication of litigation.

Illustrative Case Laws

1. Subodh Kumar Gupta v. Srikant Gupta: The Supreme Court dismissed the suit, ruling that
the agreement in question was void, and jurisdiction did not lie in Chandigarh.
2. Bloom Dekor Ltd. v. Subhash Himatlal Desai: The court ruled that cause of action
comprises the set of facts that support a plaintiff’s entitlement to relief.

20
 3. M/S South East Asia Shipping Co. Ltd. v. M/S Nav Bharat Enterprises Pvt.: Cause of
action must include an act of the defendant to initiate a valid civil claim.
4. Ramana Dayaram Shetty v. International Airport Authority of India: The tender was
declared invalid due to non-fulfilment of eligibility conditions.
5. Rajasthan High Court Advocates Association v. Union of India: Emphasised the
importance of determining the correct location where the cause of action arose.

Conclusion
A cause of action forms the backbone of any civil litigation, establishing the foundation for a valid
legal claim. The CPC, through various provisions and judicial interpretations, has reinforced the
significance of explicitly stating the cause of action in plaints to avoid unnecessary litigation and
ensure efficient judicial proceedings. Without a valid cause of action, a suit cannot be maintained,
and courts have the authority to reject baseless claims at the preliminary stage. Therefore, it is
essential for plaintiffs to carefully articulate their cause of action to ensure a successful pursuit of
their legal rights.

Jurisdiction and its kind

Introduction
Jurisdiction has not been explained in the Code of Civil Procedure. In simple words, it can
be described as the power of the court to settle the matter. The Indian Judiciary has invoked
the ancient legal maxim "Ubi jus Ibi Remedium', which means that where there is a right
there is a remedy. The judicial forum must have jurisdiction to deal with the matter. Hence,
the Jurisdiction commonly rests where the crime is committed.

Jurisdiction
The word jurisdiction is derived by combining two Latin words – “Juris” and
“dicere”. Juris means law, and dicere means speak. Hence jurisdiction refers to the power
of courts to settle disputes. Jurisdiction is nowhere defined in any legal statute.

Jurisdiction is defined as the limit of judicial authority or extent to which a court of law can
exercise its authority over suits, cases, appeals etc. A 1921 Calcutta High Court judgement
in the case of Hriday Nath Roy Vs Ram Chandra sought to explain the meaning of the term
'Jurisdiction in detail. An investigation of the cases in the texts shows several attempts to
explain the word Jurisdiction which has been declared to be the power to hear and
determine the issues of law and the fact or the authority by which their judicial powers take
knowledge of facts and decide causes. or the authority to hear and decide the legal dispute
or the power to hear and determine the subject matter in the dispute among the parties to a
suit and to adjudicate or exercise any judicial power over them or the ability to hear,
determine and declare judgement on Issues before the court or the power or authority which
is given to a court by government. to understand and learn causes between parties and to

21
give a judgement into the effect or the power to enquire into the facts to apply the law to
pronounce the Judgement and put it into execution

1. Pecuniary Jurisdiction
The word pecuniary means money. Hence it refers to the power of courts to decide cases that are
within monetary limits. In other words, the suit is maintainable in the court if its value does not
exceed the monetary limits of the court.
For example, the court of Civil Judge Junior Division has a pecuniary jurisdiction limit of Rs. 50,000.
Hence, the said court cannot try suits whose value (value of the property) exceeds Rs. 50,000.
Likewise, every court has its pecuniary limits.

2. Territorial Jurisdiction
This jurisdiction refers to the geographical boundary limits of the court to decide cases.
For example, if the suit property is situated in Kolkata, it cannot be tried in Bombay.

3. Subject Matter Jurisdiction

It refers to the power of courts to try cases related to a particular subject. The courts cannot try
those cases whose subject is beyond their power of jurisdiction.
For example, suppose Rakesh buys consumer goods, and it is found to be defective. After several
requests, the seller refused to replace the item. In this case, Rakesh has to file a suit in the District
Consumer Redressal Forum and not in any other court or tribunal. Here the District Consumer
Redressal Forum has subject matter jurisdiction over the same to try the case.

4. Exclusive Jurisdiction
This refers to the power of courts to try the cases exclusively referred to it. In any contract or
agreement, the mentioning of the jurisdiction of courts takes place, which is then given effect if any
dispute arises between the parties.
For example, certain agreements and contracts contain clauses like – Any disputes arising will be
subject to the jurisdiction of Puri courts. Hence, in such cases, the suits will be tried at Puri courts.

5. Concurrent Jurisdiction
This refers to the power of two or more courts from different jurisdictions to try the suits referred to
it.
For example, certain agreements and contracts contain clauses like – Any disputes arising will be
subject to the jurisdiction of Puri courts or courts in New Delhi. Hence, in such cases, the suits can
be tried at Puri courts or courts in New Delhi.

6. Appellate Jurisdiction
This jurisdiction refers to the power of courts to decide the appeals of cases that the sub-ordinate
courts have already decided.
For example, the High Court of the State has appellate jurisdiction over all the District Courts of the
State.

7. Original Jurisdiction
Original jurisdiction refers to the power of courts to take judicial note of any matter in the first
instance.
22
For example, the family court has the power to try cases related to family disputes. Hence, the
family court has original jurisdiction over the matter.

8. Special Jurisdiction
This power is given to the courts to try suits of special nature.
For example, if by order of the concerned authority, power is given to fast-track courts to try juvenile
cases, it is called special jurisdiction.

9. Legal Jurisdiction
This power is provided to the courts by the statutes, Constitution etc.
For example, the discretionary and inherent power of courts.

10. Extending Jurisdiction

In such cases, the court will interpret and describe the jurisdiction and try the case.
For example, the Parliament of India may by law extend or exclude the jurisdiction of High Courts.

[Link] Of Suing under Code of Civil Procedure

When a legal dispute arises, the first crucial step is determining where the lawsuit should be filed.
The place of suing refers to the appropriate court where a case must be initiated. This ensures that
the case is heard by a court with the right jurisdiction, leading to an efficient and fair resolution. The
Code of Civil Procedure (CPC) provides clear guidelines on where legal actions should be
instituted, preventing unnecessary delays and improper filings.

Court of Proper Jurisdiction (Section 15 of CPC)

Under Section 15 of the CPC, every lawsuit should be filed in the court of the lowest grade that is
competent to handle it. This provision ensures that higher courts are not burdened with cases that
can be resolved at a lower level, allowing them to focus on more complex matters.

Section 16: Where to File a Lawsuit Involving Immovable and Movable Property
This section specifies that cases concerning immovable property (real estate) must be filed in the
court where the property is located. These cases include:
 Recovering property
 Partition of property
 Mortgage-related claims
 Disputes over property rights or interests.
 Compensation claims for damage to immovable property.
 Recovering movable property under attachment or seizure.

Key Exception:
If the lawsuit seeks a remedy against property held by the defendant, and that remedy can be
obtained solely through the defendant's compliance, the case can be filed:
 In the court where the property is located, or
 In the court where the defendant lives, works, or conducts business.

23
Judicial Interpretations:
Anand Bazaar Patrika v. Biswanath Prasad: A suit for specific performance of a sale contract
must be filed in the court where the property is located, not where the cause of action arose.

Section 17: When Property is in Different Court Jurisdictions

If a case involves immovable property spread across multiple court jurisdictions, the plaintiff can file
in any court where part of the property is located. On condition that the chosen court must have the
authority to handle the entire claim based on its monetary limit.

Section 18: What Happens When Jurisdiction is Uncertain?

This section deals with situations where it is unclear which court's jurisdiction a property falls under.

Two Main Provisions:

[Link] Declaration: If multiple courts may have jurisdiction and uncertainty exists, any of those
courts can record a statement acknowledging the confusion and proceed with the case. The court’s
decision is considered valid.

[Link] in Appeals: If a case is later challenged on jurisdictional grounds, an appellate court

cannot reject it unless:
 At the time of filing, there was no reasonable doubt about jurisdiction.
 The error led to a failure of justice.

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

This section explains where a person can file a lawsuit when they seek compensation for harm
caused to their body or to their movable property.

Key Points
If the wrongful act happened in one place, but the person being sued (defendant) lives or works in
another place, the person filing the suit (plaintiff) has a choice:
 They can file the case where the wrongful act happened.
 Or they can file it where the defendant lives, works, or conducts business.

Section 20: Other suits to be instituted where defendants reside or cause of action arises
This section applies to cases that do not fall under specific jurisdiction rules. It determines where a
lawsuit should be filed.
Key Points:
A lawsuit must be filed in a court within whose jurisdiction:
[Link] defendant (or all defendants, if there is more than one) resides, works, or does business at
the time the lawsuit is started.
[Link] there are multiple defendants, and at least one of them meets the above criteria, the suit can be
filed there if either:
 The court gives permission, or

24
  The other defendants do not object.
[Link] lawsuit can also be filed where the cause of action (the event leading to the dispute) took
place, either fully or partially.

[Link] Rule for Corporations: A company is considered to be doing business at:

 Its main office.
 Any branch office, if the dispute is related to activities at that branch.

Judicial Interpretation
ABC Laminart Pvt. Ltd. vs. A.P. Agencies
In contractual disputes, the jurisdiction of the court is determined by either the place where the
contract was signed or where the cause of action, such as a breach or failure of delivery, occurred.
If both parties agree to confer exclusive jurisdiction to a particular court, such an agreement is
legally valid only if it is explicitly clear, precise, and unambiguous. Additionally, the clause must not
contravene Sections 23 and 28 of the Indian Contract Act, which prohibit unlawful agreements and
restrictions on legal proceedings.

Section 21: Objections to Jurisdiction for Place of Suing

Section 21 of Code of Civil Procedure 1908 “Objections to Jurisdiction”
“No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless
such objection was taken in the Court of first instance at the earliest possible opportunity and in all
cases where issues are settled at or before such settlement, and unless there has been a
consequent failure of justice.”

Conclusion
The concept of the place of suing in CPC pertains to where a lawsuit should be instituted or filed. It
is essential to determine the appropriate Court with the necessary jurisdiction and venue to resolve
the dispute efficiently. The CPC provides provisions and guidelines to identify the Court of
competent jurisdiction based on factors such as the case’s nature, the parties’ geographical
location, and the subject matter. Section 15 of the CPC emphasizes that a suit must be instituted in
the Court of the lowest grade competent to handle it, thus preventing the overburdening of higher
courts.

Sections 16 to 20 of the CPC further clarify the specific situations where suits related to immovable
property, compensation for wrongs, or other matters should be filed—additionally, Section 18
addresses cases where the local limits of jurisdiction are uncertain. The interpretation of these
provisions by the Supreme Court has provided insights into the significance of subject-matter
jurisdiction, objections related to territorial or pecuniary jurisdiction, and the relevance of waivers
and dispute resolution methods like arbitration.

MODULE 2:
Of suits (Section 26-Section35, Order I-Order XX)
2.1 Parties to a suit (Order 1-Order III)
Introduction
25
In any civil case, parties are the persons who initiate the case or defend against it. These are
broadly divided into:

Party Type Role

Plaintiff The person who files the suit (claimant)
Defendant The person against whom the suit is filed
A civil suit cannot proceed without identifying the proper parties.
Order I: Parties to Suits
1. Who can be joined as Plaintiffs (those filing the case):
o Two or more people can file a case together if:
(a) Their right to relief comes from the same act/transaction or a series of related acts.
(b) If they filed separate cases, there would be a common question of law or fact.
o Example: If several shopkeepers suffer loss due to the same fire caused by an
electricity company’s negligence, they may all join together as plaintiffs.

2. Court’s power to separate trials of Plaintiffs:

o If having many plaintiffs together slows down or complicates the case, the Court may:
 Ask them to choose who will continue, OR
 Order separate trials, OR
 Pass any other suitable order.
 Example: If three plaintiffs file a case together, but their claims are too different
and confuse the trial, the Court can order separate trials.

3. Who can be joined as Defendants (those against whom the case is filed):
o Two or more people can be made defendants if:
(a) The claim against them arises out of the same act/transaction or related acts.
(b) If separate cases were filed against them, there would be a common question of
law or fact.
o Example: If a person is cheated by two partners in a firm, both partners can be joined
as defendants in one case.

3A. Court’s power to separate trials of Defendants:

 If joining defendants together delays or complicates the trial, the Court may order separate
trials or pass another suitable order.
 Example: If 10 people are made defendants but only 2 are really connected to the dispute,
the Court may separate the trials.

4. Judgment for/against some parties only:

o The Court can give judgment:
 In favour of one or more plaintiffs entitled to relief.
 Against one or more defendants found liable, according to their responsibility.
 Example: If three plaintiffs sue, and only one proves his case, the Court can
give judgment in favour of that one alone. Similarly, if two defendants are sued
but only one is liable, judgment can be passed against that one defendant.

26
 5. Defendant need not be interested in all reliefs:
o It’s not necessary that every defendant should be connected with all the reliefs
claimed.
o Example: If A sues B for recovery of money and also sues C for possession of land in
the same case, C need not be concerned about the money claim.

6. Joinder of parties in contracts:

o A plaintiff can join all persons who are jointly or separately liable under the same
contract (like in bills of exchange, hundis, promissory notes).
o Example: If three people jointly sign a promissory note, the creditor can sue all three
together or only one of them.

7. If plaintiff is unsure who is liable:

o Plaintiff may include multiple defendants to decide who is actually liable and to what
extent.
o Example: If goods are lost during transport and it is unclear whether the railway
company or the insurance company is liable, the plaintiff may sue both together.

8. Representative suits (one person on behalf of many):

o If many people have the same interest:
(a) One or more can sue/defend with Court’s permission, on behalf of all.
(b) Court may also direct it.
 Notice must be given to all interested persons (personally or by public
advertisement).
 Any person concerned can apply to become a party.
 No claim can be dropped or suit withdrawn without informing all.
 If the representative doesn’t act properly, the Court may replace them.
 The decree (final decision) will bind everyone concerned.
 It’s not necessary that all have the same “cause of action,” just the same
interest.
 Example: In a case where many villagers have the same dispute over common
grazing land, one villager may file a case on behalf of all, with Court’s
permission.

8A. Court may allow third parties to give opinion:

 If a person or group is interested in an important legal question in the suit, the Court may
allow them to give their opinion or take part in proceedings in public interest.
 Example: In a case about environmental pollution, the Court may allow an environmental
NGO to present its opinion even if it’s not directly a party.

9. Misjoinder/Non-joinder (wrongly added or missing parties):

o A case won’t be dismissed just because of misjoinder (wrongly adding someone) or
non-joinder (missing someone).
o But if a necessary party is missing, the case may fail.

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 o Example: If a plaintiff wrongly adds an unnecessary defendant, the case will not fail.
But if he forgets to add a necessary party (like the owner of the disputed property), the
case may fail.

10. Wrong Plaintiff named:

 If the case is filed in the wrong plaintiff’s name by mistake, the Court can allow correction and
substitution of the right plaintiff.
 Court can strike out wrongly joined parties or add necessary ones anytime.
 A new defendant must be served with the plaint and summons.
 Proceedings against a new defendant start only after summons is served.
 Example: If a case is mistakenly filed in the name of a minor without appointing a guardian,
the Court may substitute the correct guardian as plaintiff.

10A. Court may ask a pleader to assist:

 If some party is unrepresented, the Court may request a lawyer to assist regarding their
interest.
 Example: If a case affects unrepresented tenants, the Court may request a lawyer to explain
their possible rights.

11. Conduct of suit:

 The Court may assign conduct of the case to any proper person.
 Example: In a representative suit, the Court may appoint a particular plaintiff to handle the
case on behalf of all.
 Example: In a representative suit, the Court may appoint a particular plaintiff to handle the
case on behalf of all.

12. One party can represent others:

 If there are multiple plaintiffs/defendants, one can be authorized in writing by the others to act
on their behalf.
 Example: If three brothers sue for property, one of them may be authorized in writing to
represent all three in Court.

13. Objections about misjoinder/non-joinder:

 Must be raised at the earliest stage (before or at issue framing).
 If not raised early, the objection is considered waived.
 Example: If a defendant feels a necessary party is missing, he must raise it early. If he waits
until later stages, the Court will treat the objection as waived.
 Death, marriage and insolvency of parties (Order XXII)
 Death, marriage and insolvency of parties (Order XXII)

Death, marriage and insolvency of parties (Order XXII)

Introduction
Order 22 of CPC, 1908 talks about the provision related to death. Marriage and insolvency of
parties. Under this order of CPC, in case of death marriage and insolvency of parties, what will
happen to the suit of parties, what are the remedies available and what is the procedure to continue
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the suits, are discussed in this article. There are 12 rules under this Order Rule 1 to 6,9 and 10A
talks about the death of parties, Rule 7 talks about marriage and Rule 8 about the insolvency of
parties.

Death of parties
Under Rules 1 to 6, 9 and Rule 10A, the concept related to death of parties are mentioned and
discussed. When one of the parties to a suit dies, either the defendant or the plaintiff, the first
question to arise is whether the right to sue survives or not. If the right to sue does not survive then
the suit will be disposed of but in case it does survive then the suit will continue (Rule 1).
A brief discussion on death of parties
1. In cases where the only plaintiff in a suit dies and the right to sue survives to the legal
heirs or representatives of the deceased plaintiff, then the suit can be continued by his
legal representatives and heirs after filling an application before the court
2. But if the right to sue does not survive then the suit can be dismissed. By the court’s
order. In case where the prescribed application is not filed within the period defined in
the Limitation Act, 1963 (90 days), the matter shall be over. However, one can file an
application for setting aside the order within prescribed limitations.
3. Where there are more than one plaintiffs and one of them dies and the right to sue
survives to the surviving plaintiff or plaintiffs alone then the court will make a statement
regarding the death of the plaintiff and proceed with the suit.
4. Where within the time prescribed or limited by law, no application is made then the suit
shall abate as far as the right of the deceased. Plaintiff relates.
5. Where the death of the plaintiff takes place before the judgement and after the trial of
the suit, the suit shall not abate and the judgement shall have the same force and
effect as if it had been pronounced before the death took place.
No suit shall be filed against a dead person. Such suit shall have rion legal effect, and such type of
suit is non est means absent or a defence by way denial of a deed. But in cases where the plaintiff
was unaware of the death of the defendant then he may file an application to make the legal heirs or
defendant party to the suit, the court may permit to call upon the legal heirs or defendant as a party
on record. After that the suit shall be deemed as having been filed on the day the plaint was
Presented. The court’s satisfaction breathes life into the suit. The sarrie has been opined in the case
of Karuppaswamy vs C. Ramamurthy (1993),

Death of defendant
Where there are more than one defendants in a suit and one of them dies, the right to sue survives
to the surviving defendants only. The court shall proceed with the suit to the effect of the surviving
defendant..

In cases where only one defendant is in suit and he dies and the right to sue survives, then it can be
continued against the legal heirs or legal representative of the deceased defendant. Where the
plaintiff in the suit ignorant of the death of defendant and unable to make an application for the
amendments in the legal heirs of deceased defendant within prescribed time and suit dismissed by
the order of court, in this case the plaintiff may make an application to setting aside the order of
abatement within the time prescribed under Limitation Act, 1963.

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Legal representatives of deceased defendants may make any defence appropriate to his character
as legal representative of the deceased Where there is no application made within the time
prescribed under the Limitation Act, 1963 (90 days), the suit shall abate against the deceased
defendant. Where the defendant dies before judgement and after the trial of the suit there shall be
no abatement by reason of the death of the defendant and the judgement shall have the same force
and effect as if It had been pronounced before the death took place.
In the case of Saiwant singh(dead) vs. Jagdish Singh (2010), the court of law had read down the
principal for not filing the application within prescribed time. If the sufficient cause for not making an
application is not proved then the application for setting aside the order has to be dismissed on that
ground. If the sufficient is shown then the court has discretionary power which indicates that a court
may agree to accept a late appeal or application. The word sufficient cause is defined under Section
5 of Limitation Act, 1963

Survival of the Right to Sue

The principle that guides the courts in these situations is the survival of the right to sue. If the cause
of action persists despite the death of a party, the suit can continue with the substitution of the
deceased party’s legal representatives. This principle is enshrined in the maxim “Actio personalis
moritur cum persona,” which translates to “a personal right of action dies with the person.” However,
there are exceptions to this rule, especially in cases involving contractual obligations, tort claims or
other causes of action that survive the death of a party.
The survival of the right to sue is particularly significant in cases where the deceased party’s legal
representatives have a vested interest in the outcome of the suit. In such cases, the courts are
inclined to allow the substitution of legal representatives to ensure that the suit is adjudicated on its
merits rather than being dismissed due to procedural lapses.

Marriage of a Party
Marriage, as a legal event, generally does not affect the continuation of a civil suit. However, there
are specific provisions under the CPC that address the potential legal implications of marriage,
particularly concerning the execution of decrees and the rights of married women.

Effect of Marriage on the Suit

Under Order XXII, Rule 7 of the CPC, the marriage of a female party to a suit does not affect the
continuation of the suit. The suit shall proceed as if the marriage had not taken place. This provision
ensures that marital status does not create procedural hurdles in the adjudication of civil disputes.
However, when a decree is passed in favour of or against a married woman, special considerations
come into play. The court may permit the decree to be executed against her husband if he is legally
entitled to the subject matter of the decree or liable for the debt incurred by his wife. This provision
recognises the potential impact of marriage on the financial and legal obligations of the parties
involved.

For example, if a decree is executed against a married woman for the payment of a debt and her
husband is legally liable for that debt, the court may allow the decree to be executed against the
husband. This provision is particularly relevant in cases involving joint family properties, dowry
claims or financial obligations arising from the marriage.

Insolvency of a Party

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

Insolvency of Plaintiff
When a plaintiff becomes insolvent during the pendency of a suit, the court must consider whether
the suit can continue for the benefit of the creditors. The key provisions are as follows:

Continuation of the Suit: If the plaintiff becomes insolvent, the suit does not abate automatically.
Instead, the assignee or receiver appointed under the insolvency laws may continue the suit for the
benefit of the creditors. This provision ensures that the creditors’ interests are protected and the suit
can be adjudicated on its merits.

Role of the Assignee or Receiver: The assignee or receiver, who is responsible for managing the
insolvent estate, may apply to the court to be substituted in place of the insolvent plaintiff. The court
may require the assignee or receiver to provide security for the costs of the suit. If the assignee or
receiver fails to provide the security within the prescribed time, the court may dismiss the suit,
leading to its abatement.

Application by the Defendant: If the assignee or receiver declines to continue the suit or fails to
provide the necessary security, the defendant may apply to the court for the dismissal of the suit.
The court may also order the defendant to be paid costs from the estate of the insolvent plaintiff.

Effect of Insolvency on Decrees: In cases where a decree has already been passed in favour of
an insolvent plaintiff, the decree may still be executed by the assignee or receiver. The court may
direct that the proceeds of the decree be applied for the benefit of the creditors, subject to any legal
obligations arising from the insolvency.

Insolvency of Defendant
The insolvency of a defendant does not automatically lead to the abatement of a suit. However, the
court may stay the proceedings if it deems it necessary to protect the interests of the insolvent
defendant’s creditors. The following points are crucial:

Stay of Proceedings: If the defendant becomes insolvent, the court may stay the proceedings to
allow the insolvency process to take its course. The stay is typically temporary, allowing the
assignee or receiver to assess the situation and determine whether the suit should continue.

Role of the Assignee or Receiver: Similar to the plaintiff’s insolvency, the assignee or receiver
may apply to the court to be substituted in place of the insolvent defendant. The court may require
the assignee or receiver to provide security for the costs, failing which the suit may proceed against
the defendant’s estate.

Impact on Execution of Decrees: If a decree has been passed against an insolvent defendant, the
execution of the decree may be stayed by the court to allow the insolvency process to unfold. The
court may direct that the proceeds from the execution be applied for the benefit of the creditors,
ensuring that the insolvent estate is distributed equitably.

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Abatement of Suit
Abatement refers to the discontinuation or cessation of a legal proceeding due to specific
circumstances, such as the death of a party, insolvency or other factors that prevent the
continuation of the suit. The concept of abatement is closely linked to the survival of the right to sue,
as well as the procedural requirements for substitution.

Grounds for Abatement

Death of a Party: As discussed earlier, the death of a party can lead to the abatement of the suit if
the right to sue does not survive or if the legal representatives are not substituted within the
prescribed time frame.
Insolvency of a Party: The insolvency of a party may lead to abatement if the assignee or receiver
declines to continue the suit or fails to provide the required security for costs.
Non-Substitution of Legal Representatives: Failure to substitute legal representatives within the
prescribed time limit, typically 90 days, can result in the abatement of the suit.
Other Grounds: Other grounds for abatement may include defects in the parties, lack of jurisdiction
or the dissolution of a corporation involved in the suit.

Consequences of Abatement
The abatement of a suit has significant legal consequences. When a suit abates, it effectively
comes to an end concerning the deceased or insolvent party. The legal proceedings are
discontinued and any further action in the suit is void unless the abatement is set aside.
1. Setting Aside Abatement: The CPC provides a mechanism for setting aside the abatement
of a suit. The legal representatives of the deceased party or the assignee or receiver in the
case of insolvency, may apply to the court to set aside the abatement. The application must
be made within the prescribed time limit and the applicant must show reasonable cause for
the delay in substitution.
2. Impact on the Suit: If the abatement is set aside, the suit is revived and can continue from
where it was left off. However, if the abatement is not set aside, the suit remains discontinued
concerning the deceased or insolvent party and the proceedings may only continue against
the remaining parties.

Case Laws Illustrating Abatement

Several landmark judgements have shaped the understanding of abatement and its implications in
civil litigation. These cases highlight the courts’ approach to the procedural intricacies of abatement
and the importance of timely action by the parties involved.
1. Nurani Jamal vs. Naram Srinivasa Rao: This case involved the application of the maxim
“Actio personalis moritur cum persona” and the survival of the right to sue. The court
recognised that the right to sue survives in cases where the cause of action is not strictly
personal, such as claims involving property or contractual obligations.
2. Elliott v. Cline: In this landmark judgement, the court observed that the cause of action for
an injunction survives the death of a party. However, if the cause of action is entirely
personal, such as in cases of defamation or personal injury, the right to sue abates with the
death of the party.

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 3. Cleymond v. Vincent (1523): This early English case is one of the first to apply the maxim
“Actio personalis moritur cum persona” in the context of defamation. The court held that the
right to sue for defamation does not survive the death of the plaintiff, establishing a precedent
that has influenced subsequent case law.

Conclusion
The death, marriage and insolvency of parties in a civil suit present complex challenges that require
careful navigation of the procedural rules set forth in the Code of Civil Procedure, 1908. Order XXII
of the CPC provides a robust framework to address these contingencies, ensuring that suits can be
continued, abated or revived based on the survival of the right to sue and other relevant
considerations. The provisions concerning the substitution of legal representatives, the role of
assignees or receivers in cases of insolvency and the impact of marriage on legal proceedings
reflect the CPC’s commitment to fair and just adjudication.

2.2 Institution of a suit (Order IV and V)

Introduction
A suit is a proceeding by which an individual pursues that remedy which the law affords. It is a civil
proceeding instituted by the presentation of a [Link] the term suit has not been defined
under the Civil Procedure Code, 1908 (CPC).
According to Section 2(1) of The Limitation Act, 1963, Suit does not include an appeal or an
application.
In Ethiopian Airlines v. Ganesh Narain Saboo (2011), the Supreme Court held that the term suit is a
general term that includes all actions which are to be taken by a person to enforce a legal right that
has been vested by law.

Essentials of a Suit
The Opposing Parties:
In every suit there must be at least one plaintiff and one [Link] may be more than one
plaintiff and more than one defendant where an act or transaction proceeds from two or more
persons or it affects two or more persons.

The Cause of Action:

Every suit must contain the cause of action which refers to the cause or the set of circumstances
which leads up to a [Link] consists of every fact which is necessary to be proved to entitle the
plaintiff to a decree.
In Rajasthan High Court Advocates Association v. Union of India & Ors. (2000), the SC held that the
term cause of action had a judicially established meaning. It refers to the conditions surrounding the
violation of the right or the direct cause of the conduct.

The Subject Matter:

It is the right or property claimed in the [Link] court adjudicates upon the right of the parties with
regard to the subject matter in a dispute.

The Relief Claimed:

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The relief claimed should be stated specifically in the plaint. It may be stated in the alternative
[Link] relief claimed must be one which the Court is able to [Link] a person is entitled to
more than one relief in respect of the same cause of action, he must sue for all reliefs.

Institution of Suit under CPC

The institution of suit under CPC is a foundational element of the Indian legal system, marking the
formal commencement of a civil legal action. This process allows individuals and entities to seek
legal redress for disputes in a structured and orderly manner.
At the heart of the institution of suit is the filing of a “plaint” by the plaintiff, outlining the facts of the
case, the legal grounds for their claim and the relief they are seeking. Jurisdiction and court fees are
crucial considerations, ensuring that the right court handles the case and that the necessary costs
are covered.

Once the suit is instituted, the legal proceedings take their course, leading to the court’s judgment or
decree. The institution of suit under CPC is a fundamental step in the pursuit of justice and
resolution of civil conflicts in India’s legal landscape.

What is a Suit?
The term ‘suit’ is not specifically defined in the CPC, 1908. According to Black’s Law Dictionary, 4th
edition, a ‘suit’ is a general term that covers any legal action where one person or a group of people
take legal action against another in a court to seek a remedy provided by the law for addressing a
harm or asserting a right, whether it’s a matter of law or equity.

A ‘suit’ is a formal legal process initiated by filing a complaint to enforce civil or substantive rights
against either the government or an individual. When a ‘suit’ is concluded, it leads to the issuance of
a legal judgment or decree. Without a ‘suit,’ there can be no such judgment.

In the Ethiopian Airlines v. Ganesh Narain Saboo case from 2011, the Supreme Court explained
that the term ‘suit’ is a broad term encompassing all actions taken by a person to enforce a legal
right granted by the law.

In the significant case of Hansraj Gupta & Others v. Dehra Dun-Mussoorie Electric Tramway
Co. Ltd. in 1932, the Privy Council ruled that a civil legal proceeding begins with the submission of
a complaint.

Meaning of Institution of Suit

Institution of suit under CPC refers to the formal commencement of a legal action or civil suit
by a plaintiff against a defendant in a court of law. The institution of suit initiates the legal
process by which the plaintiff seeks a legal remedy, such as a judgment, order or decree, for
a particular issue or dispute.
The key components of the institution of suit under CPC typically include:
 Filing a Plaint: The plaintiff starts the process by filing a written statement known as
a “plaint” in the appropriate court. The plaint outlines the facts of the case, the legal
basis for the claim and the relief or remedy sought.

34
  Court Selection: The plaintiff must choose the correct court with jurisdiction to hear
the case, meaning that the court has the legal authority to handle the specific type of
dispute and is located within the appropriate geographic area.
 Payment of Court Fees: The plaintiff is generally required to pay the prescribed court
fees, which may vary depending on the nature and value of the suit, as per the Court
Fees Act, 1870.
 Service of Summons: After the institution of the suit under CPC the court issues a
summons to notify the defendant of the legal action and require their appearance in
court to respond to the plaintiff’s claims.
 Proceedings: Once the defendant receives the summons and responds, the legal
proceedings unfold, including the presentation of evidence, legal arguments and
ultimately the court’s judgment or decree.
In summary, the institution of suit under CPC is the formal initiation of a civil legal action,
marking the beginning of the legal process to address and resolve a specific dispute
between parties through a court of law.

How Institution of Suit under CPC is Done?

Section 26 and Order IV provide the guidelines for initiating legal proceedings. Section 26
specifies that every civil suit must begin by presenting a written statement (called a plaint) in
duplicate or as per the rules set out in the Code of Civil Procedure, to the court or an
authorised officer. The facts presented in the plaint must be supported by an affidavit. To
understand this better, we should also consider Order IV, VI and VII of the first schedule.
Rule 1 of Order IV should be considered alongside Section 26 to expand on the legal
requirements outlined in the section. This rule states that a civil suit is considered officially
started only when a duplicate of the plaint is presented either directly to the court or to a
designated officer. Furthermore, the said plaint must adhere to the regulations outlined in
Order VI and VII.
Section 80 of the CPC mandates that, in cases where the defendant is the government or a
public officer, a legal notice must be delivered before filing a civil suit. However, it’s
important to note that not all civil suits require such a notice. In some situations, lawyers
send legal notices before initiating civil cases to inform the defendant that they are making a
final effort to resolve the dispute. This is typically done as a precautionary measure.
The procedural steps for institution of a suit under CPC include:
 Drafting a plaint (a formal written statement outlining the case)
 Selecting the appropriate court for filing the civil suit (the place of suing)
 Presenting the plaint to the court or a designated officer.

Plaint
The institution of a suit under CPC starts with a plaint. A “plaint” is a legal document through
which a plaintiff asks the court for compensation for any harm caused by the defendant.
While there is no strict format for drafting a plaint, Order VII, Rule 1 of the CPC provides
specific requirements for its content. A plaint should include the following information:
 The name of the court where the civil suit is filed.
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  The plaintiff’s name, description and address.
 The name, description and address of the defendant, to the extent known.
 If the plaintiff or defendant is a minor or a person of unsound mind, a statement to that
effect is needed.
 The facts that give rise to the legal claim and when they occurred.
 The facts that establish the court’s jurisdiction.
 The type of relief or compensation the plaintiff is seeking.
 If the plaintiff has accepted a set-off or waived part of their claim, the amount they’ve
allowed or waived.
 A statement of the value of the subject matter of the civil suit for determining
jurisdiction and court costs, to the extent applicable.

In the case of Kavita Tushir v. Pushpraj Dalal (2022), the Delhi High Court ruled that a
plaint cannot be rejected in parts; it must be either accepted or rejected in its entirety. This
means that a plaint should be considered as a whole and if it is found deficient or
problematic, it should be rejected in its entirety rather than in parts.
Grounds for rejecting a plaint, as outlined in Order VII, Rule 11, include:
 When there is no valid cause of action presented.
 If the relief sought is undervalued and the plaintiff fails to update the valuation as
directed by the court within a specified period.
 When the relief sought is correctly valued but the plaint is not sufficiently stamped and
the plaintiff is instructed by the court to provide the necessary stamp paper within a
given deadline but fails to do so.
 If the statements in the plaint indicate that the civil suit is prohibited by any law.
 When the plaint is not filed in duplicate.
 If the plaintiff fails to comply with the provisions of Rule 9.

Appropriate Place of Suing

Sections 15 to 20 of the CPC address the location or place where institution of a suit under
CPC can be done.
Section 15 specifies that the plaintiff should file their civil suit in a court with the lowest level
of competence.

Section 16 outlines that suits must be initiated within the local jurisdiction where the subject
property is situated in cases involving:
 Recovery of immovable property (with or without rent or profits).
 Partition of immovable property.
 Foreclosure, sale or redemption of a mortgage or charge on immovable property.
 Determination of any other right or interest in immovable property.
 Compensation for damage to immovable property.
 Recovery of movable property under distraint or attachment.

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If a suit is filed for relief or compensation for a wrongful act to immovable property and it can
be effectively obtained through the defendant’s presence, it may be filed in a court within the
local jurisdiction where the property is located or where the defendant resides, carries on
business or earns a livelihood. This is based on the principle of “equity acts in personam,”
which means that equity applies to a person rather than to property.

Section 17 discusses the jurisdiction of suits involving immovable property located in the
jurisdictions of different courts. When immovable properties are situated in separate
jurisdictions, the suit can be filed in any court within the local jurisdiction where any portion
of the property is located, as long as the cause of action for both properties is the same.

In the case of Shivnarayan v. Maniklal (2019), the Supreme Court clarified that under
Section 17 of the CPC, the term ‘property’ can refer to more than one property. Suits related
to different properties can be filed in any court with jurisdiction if the cause of action is the
same.

Section 18 addresses the location for initiating a civil suit in situations of uncertain court
jurisdiction. When there’s doubt about which court should handle a case involving
immovable property, any of the courts involved can make a statement noting the
uncertainty. If the court accepts this uncertainty and proceeds to hear the case, its judgment
will be as valid as if the property was within its local jurisdiction. However, the court in
question should still be competent based on the nature and value of the case.

If a statement is not made under Section 18(1) and an objection is later raised before an
Appellate or Revisional Court that the original court lacked jurisdiction over the property’s
location, the objection will only be entertained if there was no reasonable doubt about the
jurisdiction at the time of the suit’s initiation, resulting in an injustice.

Section 19 pertains to suits seeking compensation for harm to a person or movable

property. In such cases, the plaintiff can choose to file the suit either in the jurisdiction where
the defendant resides, conducts business or earns a livelihood or where the property is
situated.

Section 20 serves as a general provision for determining the location for filing a civil suit. It
deals with the initiation of suits where the defendant resides, conducts business, earns a
livelihood or where the cause of action wholly or partly arises within the court’s jurisdiction. If
there are multiple defendants when the suit begins, it can be initiated in a court where any of
the defendants resides, conducts business or earns a livelihood, provided that the plaintiff
obtains permission from the court. If the defendants agree to the chosen location, there is no
need for court permission.

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Rule 1 of Order IV of CPC deals with the institution of a suit by the commencement of a plaint. It
states that -
(1) Every suit shall be instituted by presenting 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
specified in sub-rules (1) and (2).

Rule 2 of Order IV of CPC deals with the registration of suits. It states that the Court shall cause
the particulars of every suit to be entered in a book to be kept for the purpose and called
the register of civil suits. Such entries shall be numbered every year according to the order in
which the plaints are admitted.

Formalities After the Institution of Suit under CPC

The institution of suit under CPC before a court or its designated officer is detailed in Order IV,
Rules 1 and 2.

Section 27 pertains to the issuance of summons to the defendant or defendants. A summons,

calling upon the defendant to respond to the claim, is dispatched within thirty days after the suit is
filed and it is served as per the specified procedure.

Section 28 deals with serving summons to defendants residing in other states. When a defendant
resides in a different state, the summons must be forwarded to the court in that state, following its
established rules. The receiving court acts as if it had issued the summons itself and sends it back,
along with a record of its actions, to the court that initially issued the summons.

If the summons sent to another state is in a language different from the court’s official language, a
translation of the record is required:
 If the court issued the summons in Hindi, the translation must also be in Hindi.
 If the record is in a language other than Hindi or English, the translation must be provided in
Hindi or English and delivered with the record.

Section 29 addresses the service of foreign summons. Summons and other legal documents can be
presented by:
 Any Civil or Revenue Court established in India, even if the CPC doesn’t apply.
 Any Civil or Revenue Court established or maintained by the Central Government outside of
India.
 Any other Civil or Revenue Court outside of India to which the Central Government has
extended the application of these provisions through an official notification in the Gazette.
These documents can be delivered to courts within the areas covered by this Code and
served as if they were issued by those local courts.
Section 31 extends the principles of Sections 27, 28 and 29 to cover witness summonses. This
means that the procedures for issuing and serving summonses for producing documents, materials
or providing testimony are governed by these sections.

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Conclusion
The institution of suit under CPC is the formal initiation of a civil legal action in a court of law. It
involves the filing of a plaint by the plaintiff, specifying the facts and legal basis of the claim and the
relief sought. Choosing the appropriate court with jurisdiction, paying the required court fees and
serving a summons on the defendant are essential steps in the process.
Once the suit is instituted in CPC, legal proceedings unfold, including the presentation of evidence
and legal arguments. The court ultimately issues a judgment or decree to resolve the dispute. The
institution of suit is a critical step in seeking legal remedies and addressing civil disputes through the
judicial system.

2.3 Pleadings, plaint and written statement (Order VI- Order VIII)
Pleading ( Order – 6 )
Introduction
Pleading under the Code of Civil Procedure (CPC), 1908, is a critical aspect of civil litigation in
India. Pleadings are the formal written statements filed by the parties in a civil suit to present their
claims and defences. They serve as the foundation of the judicial process, helping to delineate the
issues in dispute, facilitating a clear understanding of the case and promoting a fair and efficient
trial.

Definition: Rule 1 of Order VI

The term "Pleading" shall mean plaint or written statement.
Order VI Rule 2 of CPC lays down some general principles regarding pleadings which are as
follows:
 Pleadings should state facts and not law.
 The facts stated should be material facts i.e. Facta Probanda
 Pleadings should not state the evidence i.e. Facta Probantia
 The facts should be stated in a concise form.

Objective of pleading
The whole objective behind pleading is to narrow down on the issues and provide a clear picture of
the case thereby enhancing and expediting the court proceedings. The pleadings help both the
parties know their point of dispute and where both parties differ so as to bring forth the relevant
arguments and evidence in the court of law.
The Supreme Court on 25th March, 1972 while disposing a case praying for certain amendments in
an election petition, observed that rules of pleadings are intended towards giving justice and to act
as alds for fair trial.

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

What is Pleading under CPC?

Pleading under the Code of Civil Procedure (CPC), 1908, refers to the formal written statements
submitted by the parties involved in a civil suit. These documents lay out the respective claims and
defences of the plaintiff and the defendant, setting the groundwork for the legal proceedings. The
primary objective of pleadings is to clearly outline the issues in dispute, enabling the court to
understand the case and facilitating a fair and efficient trial.
The CPC defines two main types of pleadings: the plaint and the written statement. The plaint is the
document filed by the plaintiff, detailing the facts of the case, the legal basis for the claim and the
relief sought. The written statement is the response submitted by the defendant, addressing the
allegations made in the plaint and presenting any defences.

Pleadings must adhere to specific rules, such as stating only material facts, avoiding legal
arguments and excluding evidence. This ensures that the focus remains on the facts in dispute,
allowing the court to apply the relevant law during the trial. Properly crafted pleadings help
streamline the judicial process, minimise misunderstandings and ensure that both parties have a fair
opportunity to present their case.

Rules of Pleadings under CPC

The essence of the rules of pleading can be encapsulated in the phrase, “Plead facts, not law.” This
principle requires that the counsel for both parties focus on presenting the facts of their case rather
than interpreting or suggesting applicable laws.
Basic or Fundamental Rules of Pleadings under CPC
The basic rules of pleadings are outlined in Sub-rule (1) of Rule 2 of Order VI of the Code of Civil
Procedure, 1908. These rules include:
1. Pleading Facts, Not Law: This principle was first emphasised in the case of Kedar Lal v.
Hari Lal, where it was held that parties must state the facts upon which they base their
claims. The court applies the law to these facts to render a judgement. Parties should not
assert or apply laws in their pleadings.
2. Material Facts Only: Only material facts should be included in pleadings. Immaterial facts
are not considered. In Union of India v. Sita Ram, the court clarified that material facts include
all facts upon which the plaintiff claims damages or rights or upon which the defendant bases
his defence.
3. Exclusion of Evidence: Pleadings should contain statements of material facts but not the
evidence by which those facts are to be proved. There are two types of facts:
 Facts Probanda: Facts that need to be proved (material facts).
 Facts Probantia: Facts by which a case is to be proved (evidence). Only facts probanda
should be included in pleadings.
4. Conciseness: Facts should be presented concisely, without omitting important details. This
ensures brevity and clarity without sacrificing essential information.

Particulars or Other Rules of Pleadings under CPC

In addition to the basic rules, there are several particulars or specific rules that must be adhered to:

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 1. Details in Cases of Fraud, Misrepresentation, etc.: When fraud, misrepresentation, breach
of trust, undue influence or willful default are alleged, particulars including dates and items
must be specified.
2. Consistency in Pleadings: Departure from initial pleadings is generally not permissible
except through amendments. No new grounds or inconsistent allegations can be introduced
without proper amendments.
3. Condition Precedent: Non-performance of a condition precedent must be specifically
mentioned. Performance is implied and need not be pleaded.
4. Denial of Contract: Denial of a contract implies denial of the facts of the contract, not its
validity, enforceability or legality.
5. State of Mind: Conditions of the mind (e.g., malice, fraudulent intention, knowledge) can be
alleged as facts without detailing the circumstances from which they are inferred.
6. Material Facts Only: Only material facts should be stated; immaterial facts should be
excluded.
7. Notice: When a notice is required as a condition precedent, it should be stated without
detailing its form or circumstances unless material.
8. Implied Relations: Implied relationships or contracts can be alleged generally without
detailing the conversations or letters from which they are inferred.
9. Onus of Proof: Facts that deal with the onus of proof or favour a party should not be
pleaded.
10. Signing and Verification: Every pleading must be signed by the party or their pleader and
verified by an affidavit by someone acquainted with the facts.
11. Address: The party to the suit must provide their address and that of the opposite party.
12. Affidavit: Every pleading must be supported by an affidavit from the party or someone
knowledgeable about the facts.
13. Striking Out Pleadings: Courts may strike out pleadings that are scandalous, frivolous,
unnecessary or intended to embarrass, prejudice or delay a fair trial.
14. Amendment of Pleadings: Amendments to pleadings are allowed by the court to ensure
justice.
15. Structure and Clarity: Pleadings should be divided into numbered paragraphs, with each
containing a separate allegation or argument. Dates, sums and totals should be expressed in
both figures and words for clarity.
16. Forms: Wherever applicable, forms from Appendix A of the Code should be used. If not
applicable, similar forms should be employed.

Amendment of Pleadings under CPC

Rules 17 and 18 of Order VI of the Code of Civil Procedure, 1908, govern the amendment of
pleadings. These provisions aim to achieve justice by allowing necessary amendments that help
clarify the issues in dispute.

Rule 17: Amendment of Pleadings

Rule 17 provides that either party may be ordered to amend their pleadings at any stage of the
proceedings in a manner that is fair and just. The objective is to determine the exact controversial
questions between the parties, ensuring that the pleadings accurately reflect the issues at hand.

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Rule 18: Failure to Amend
Rule 18 addresses the consequences of failing to amend pleadings as ordered by the court. If a
party does not amend their pleadings within the specified time limit or within 14 days if no time is
specified, they will not be permitted to amend after the expiration of this period unless the court
extends the time.

Case Laws
Sathi Vijay Kumar v. Tota Singh (2006):
The Supreme Court held that, if the parties have not offended the rules of pleadings by making
averments or raising arguable issues, the court would not order striking out pleadings.
Kisandas Rupchand & Ors v. Rachappa Vithoba Shilvant & Ors (1909):
The High Court of Bombay held that, all amendments ought to be allowed which satisfy the
condition:
 Not working injustice to the other side.
 Being necessary for the purpose of determining the real questions in controversy between
the parties.
Ganga Bai v. Vijay Kumar (1974):
The Supreme Court held that notwithstanding the law of limitation, the power to allow an
amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of
justice.

Conclusion
The objective of pleading is to streamline court proceedings by clearly identifying the issues in
dispute and the material facts relevant to the case. The rules of pleadings under CPC ensure that
both parties present their cases based on facts rather than law, avoiding unnecessary details and
focusing on the core issues. The ability to amend pleadings allows for flexibility in addressing any
oversights or changes in the case, ensuring that justice is served. By adhering to these principles,
the legal process becomes more efficient, fair and just for all parties involved.

Plaint ( Order – 7 )
Introduction
In plaint in CPC is a formal written document submitted by a plaintiff to initiate a civil lawsuit in a
court of law. It serves as the initial step in commencing a legal action. The plaint contains essential
details, including the parties involved, facts giving rise to the cause of action, the relief sought and
jurisdictional information.
It helps define the scope and purpose of the lawsuit and provides the court with the necessary
information to proceed with the case. The contents of the plaint in CPC are governed by specific
rules and guidelines outlined in the CPC to ensure legal clarity and fairness in civil litigation.

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What is Plaint in CPC?
A plaint is a legal document that contains the claims made by the plaintiff when they bring a case to
a civil court. It’s the first step in starting a lawsuit.
A plaint is basically the plaintiff’s statement of claim. It explains why the plaintiff is filing the case and
what they want from the court.
The Karnataka High Court in Gorya Bai v. Thakur Das (1967) defined plaint as:
 “A statement of claim, a document by which a suit is instituted, stating the grounds on
which the plaintiff seeks help from the court.”
So, in simple words, a plaint:
 Tells the court the cause of action (reason for filing the case), and
 States the relief the plaintiff is asking for.

Provision regarding plaint

Order VII of the Code of Civil Procedure is all about the “plaint.” In this order, you’ll find different
rules that cover various aspects of what should be in a plaint. Here’s a breakdown:
 Rules 1 to 8: These rules explain what specific details should be included in the plaint.
 Rule 9: This rule tells us how the court should admit the plaint.
 Rules 10 to 10-B: These rules discuss what happens if the plaint in CPC needs to be
returned and how parties should appear.
 Main Rules 11 to 13: These rules lay out the situations in which the court can reject the
plaint.
Section 26 of the Code of Civil Procedure is important because it says that every lawsuit has to start
with the presentation of a plaint in CPC or in a way that the law says. So, it’s clear that a plaint is
essential when you want to begin a case in a civil or commercial court.

Rules Regarding the Plaint

Rule 1 of Order IV lays down that a plaint is to be presented in duplicate to the Court or such officer
as may be appointed by the Court.
 Every plaint shall comply with the rules contained in Orders VI and VII of CPC.
 A suit is instituted when the plaint is presented and not when the suit is registered.

Contents of A Plaint
A plaint in CPC is a crucial legal document that must contain specific information; otherwise, it won’t
be considered valid. These necessary details are outlined in Rules 1 to 8 of Order VII of the CPC.
Here’s a breakdown of what should be the content of a plaint in CPC:
 The name of the civil or commercial court where the lawsuit will be filed.
 Information about the plaintiff, including their name, address and description.
 Details about the defendant, including their name, residence and description.
 If the plaintiff has any health issues or disabilities, these should be mentioned.
 The facts that give rise to the cause of action and where this cause of action occurred.
 Facts that help determine the court’s jurisdiction.
 Information about the relief or remedy the plaintiff is seeking from the court.
 If the plaintiff wants to set off a portion of their claim, the amount allowed should be
stated.

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  The value of the subject matter of the suit, not just for jurisdiction but also for court
fees.
 Verification by the plaintiff under oath.
These details make a plaint in CPC essential for starting a lawsuit in civil or commercial
courts and it remains significant throughout the legal process. Additionally, Rule 2 of Order
VII specifies that the plaintiff must state the exact amount of money they seek from the
defendant and Rule 3 requires a proper description of immovable property when it’s involved
in the case.

Return of Plaint in CPC

The court can return a plaint if it has no jurisdiction to decide the case. The plaintiff can then file it in
the proper court. The court must also record reasons and deal with costs. The court fees already
paid will be adjusted when the plaint is re-filed.
Rejection of Plaint
A plaint in CPC can be rejected in certain situations when specific requirements are not met.
Here are some instances in which a plaint may be rejected:
 Non-Disclosure of Cause of Action: If the cause of action is not clearly mentioned in
the plaint, making it impossible to prove the harm suffered by the plaintiff, the court
may reject the plaint. It’s essential to present the facts clearly to seek relief. For
example, in the case of SNP Shipping Service Pvt. Ltd. v. World Tanker Carrier
Corporation, the plaint in CPC was rejected and the suit dismissed under Order 7,
Rule 1(a) of the CPC, 1908.
 Undervaluation of Relief: If the relief sought by the plaintiff is undervalued and the
court asks the plaintiff to correct the valuation within a given time frame, but the
plaintiff fails to do so, the plaint in CPC may be rejected.
 Improperly Stamped Documents: When all the documents are not properly
stamped and the court requires the plaintiff to provide the required stamp paper within
a specified time, failure to do so may lead to the rejection of the plaint.
 Lack of Legal Basis: If the plaint is based on a statement or claim secured by a law
or statute that does not grant the plaintiff the right to file the suit, the court may reject
it.
 Failure to Submit Duplicate Copy: If the rules stipulate the submission of a
duplicate copy of the plaint and the plaintiff fails to do so, the court may dismiss the
plaint.
 Non-Compliance with Rule 9 of Order VII: If the plaintiff does not comply with the
provisions of Rule 9 of Order VII of the CPC, the court may reject the plaint.

From of the Plaint in CPC

A plaint in CPC should follow a specific format, consisting of three essential parts: the heading and
title, the body of the plaint and the relief claimed. Let’s explore these parts in more detail:
Heading and Title
Name of the Court: The plaint in CPC should begin with the name of the court where the
case is being filed. It is not necessary to mention the name of the presiding officer;

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specifying the court’s name is sufficient. For example, “In the Court of the District Judge,
Sirsa.”
Parties to the Suit: In every lawsuit, there are typically two parties: the plaintiff and the
defendant. However, there can be more than one plaintiff or defendant. The plaint in CPC
must provide all the necessary particulars about these parties, including their names,
residences, father’s names, ages and any other details required for identification.
If there are multiple parties, their names should be mentioned according to their respective
roles in the case. If one of the parties is a minor or of unsound mind, this information should
also be included in the cause title.
Title of the Suit: The title of the suit should explain the reasons for bringing the matter to
court and indicate the court’s jurisdiction.
Body of the Plaint
The body of the plaint in CPC is where the plaintiff elaborates on their concerns. It should be
organised into short paragraphs, each presenting a single fact or point. The body of the
plaint can be further divided into two main parts:
1. Formal Part:
 Date of Cause of Action: The plaint in CPC must include the date when the cause of
action occurred. This date is crucial because it helps determine whether the lawsuit is
filed within the legally specified time limits, known as the period of limitation.
 Jurisdiction of the Court: The plaint should clearly state the facts that establish the
court’s pecuniary (financial) and territorial (geographical) jurisdiction over the subject
matter of the lawsuit.
 Value of the Subject Matter: The value of the subject matter of the lawsuit should be
properly stated. This is essential both for determining the court’s pecuniary
jurisdiction and for calculating court fees.
 Statement Regarding Minority: If any party involved in the case is a minor, this
should be mentioned in the plaint.
 Representative Character of the Plaintiff: If the plaintiff is representing others, such
as in a class-action lawsuit or as a legal representative, this should be indicated in the
plaint.
 Reasons for Claiming Exemptions: If the plaintiff is initiating the suit after the period
of limitation has expired and is seeking an exemption under the law, the reasons for
this should be explained in the plaint.

2. Substantial Portion:
 In this section, the plaint in CPC must include all the essential facts that form the
basis of the lawsuit. This means detailing the grounds on which the plaintiff is
pursuing the cause of action, including any additional legal grounds.
 It should be demonstrated in the plaint that the defendant has a clear interest in the
subject matter of the case, justifying their involvement and the court’s jurisdiction.
 If there are multiple defendants and their liability is not joint, the individual liability of
each defendant should be separately specified in the plaint.

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  Similarly, if there are multiple plaintiffs and their causes of action are not joint, this
should also be clearly indicated in the plaint.
Relief
The relief claimed is a crucial part of the plaint. It is where the plaintiff specifies precisely what they
are seeking from the court. This can be a request for compensation (damages), a demand for
specific performance of a contract, an injunction to prevent certain actions, or any other form of
relief. It’s vital to state the relief clearly and accurately in the plaint because the claims made in the
plaint in CPC cannot be supplemented or altered through oral pleadings later on.

Signature and Verification

 Plaint must be signed by the plaintiff (or authorized representative).
 It must be verified under oath, mentioning which facts are based on personal knowledge and
which on information.
 Verification must be done before a competent authority to ensure authenticity.

Case Laws:
In Mayar H.K. Ltd. v. Owners & Parties, Vessel M.V. Fortune Express (2006), the Supreme Court
held that the grounds for rejection of plaint specified in Rule 11 of Order VII of CPC are not
exhaustive.
In Sopan Sukhdeo Sable v. Asst. Charity Commr. (2004), the Supreme Court held that a plaint
cannot be rejected in part and retained in part. It should be rejected as a whole.

Conclusion
In conclusion, a plaint in CPC is a formal and crucial legal document that initiates a civil lawsuit. It
provides a clear and structured account of the case, including the parties involved, the facts leading
to the cause of action, the relief sought and jurisdictional details.
The plaint plays a fundamental role in defining the scope and purpose of the lawsuit and it ensures
that the court has the necessary information to proceed with the case. Adherence to the specific
rules and guidelines outlined in the CPC is essential when drafting a plaint to maintain legal clarity
and fairness in civil litigation.

Written statement ( Order – 8 )

Introduction
A Written Statement under the Civil Procedure Code (CPC) is very important. It is the defendant’s
chance to answer the plaintiff’s claims in an organised way. This document shows the defendant’s
version of events, their admissions, denials, and defences. It ensures that the trial is fair and
balanced.

What is a Written Statement?

The Code of Civil Procedure does not provide a clear definition for a ‘written statement.’ In simple
terms, it is a written defence statement submitted by the defendant, addressing all the important
points raised by the plaintiff in their complaint.

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The CPC does not give a clear definition of a written statement. In simple words, it is the written
defence submitted by the defendant in reply to the plaintiff’s complaint.
This statement contains objections to the plaintiff’s claims and may also include new facts, if
needed. It represents the defendant’s side of the story, just like the plaint represents the plaintiff’s
side.
The rules for filing a written statement are given under Order VIII of CPC. The written statement
should only state facts supporting the defence and not the evidence to prove those facts.

Pleading of New Facts

Order VIII Rule 2 allows the defendant to bring in new facts that the plaintiff did not mention, but
which show that the case should not continue. These facts must be stated clearly and specifically,
not in vague terms. Such facts must be raised at the beginning, not later during appeal.

Denial of Facts
The defendant must either admit or deny the plaintiff’s allegations. If an allegation is not denied, it is
taken as admitted. Order VIII Rule 3 requires that denial must be specific. A general denial is not
enough.
According to Order VIII Rule 4, evasive denials are not valid. For example, if the plaintiff claims the
defendant received a specific amount of money, the defendant must deny the exact amount or state
the correct figure. If the denial is vague, it will be treated as an admission.

Who Can File a Written Statement?

A written statement must be filed by the defendant personally or through an authorised
representative. It cannot be filed by someone who has no authority.

When Should a Written Statement Be Filed?

3. Order VIII Rule 1 says the defendant must file the written statement within 30 days of
receiving summons.
4. The period can be extended up to 90 days, but only with written reasons given to the court.
5. In commercial disputes, the initial limit is also 30 days, but the court can extend it up to 120
days. If this period passes, the defendant loses the right to file a written statement.
6. If there is a delay, the defendant must file the statement with an application explaining the
reason. The court will accept it only if the reason is valid and beyond the defendant’s control.

Case Laws
6. In Mohammed Yusuf v. Faij Mohammad (2009), the defendant filed a written statement three
years late. The Supreme Court held that extension beyond 30 days should not be automatic
and must be based on sufficient reasons.
7. In Christian Broadcasting Network Inc. v. CBN News (2018), the Delhi High Court said that if
a defendant does not file a written statement, the court can act under Order VIII Rule 10 and
even pass an injunction.
8. In Nagaratnam Pillai v. Kamlathammal (1945), the court clarified that Rule 10 also applies to
Rule 9, meaning the court can call for further written statements and fix deadlines.

Consequences of Not Filing a Written Statement

 Under Order VIII Rule 10, if the defendant fails to file within time:
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 o The court may grant an adjournment, but under Order XVII Rule 1, not more than
three adjournments can be given.
o If still not filed, the court can pass an ex parte decree against the defendant.

Appeal and Revision

 After a judgment, a decree is passed. The aggrieved party can file an appeal under Section
96 CPC.
 Under Section 115 CPC, the High Court has power of revision.
 If a decree is appealable, the party must choose either appeal or revision, not both.

Inherent Powers of the Court

 Section 151 CPC gives the court inherent powers.
 This means the court can pass necessary orders to ensure justice and prevent misuse of its
process, even if not specifically mentioned in the Code.

Time Limit for Filing Written Statement

 A defendant must file the written statement within 30 days from receiving summons.
 By the 2002 amendment, this can be extended up to 90 days.

Amendment to Written Statements

 In Usha Balasaheb Swami v. Kiran Appaso Swami (2007), the Supreme Court said
amendments in written statements are more flexible than in plaints. Defendants can add new
or even contradictory defences.
 In Baldev Singh v. Manohar Singh (2006), the Court confirmed that unlike plaints,
amendments to written statements are allowed more freely, as they do not change the cause
of action.

Additional Written Statement (Order VIII Rule 9)

 Rule 9 was restored in 2002. It allows parties to file additional written statements, but only
within 30 days fixed by the court.
 Amendments are allowed even if they appear inconsistent with earlier statements, unless
they are made in bad faith or cause serious harm to the other party.
 If the omission was due to mistake, carelessness, or accident, the court may still allow
correction.

Right to File Written Statement Closed Remedy

 In Beant Singh v. Dilbagh Singh, the defendant failed to file within 90 days and his defence
was struck off.
 However, the Punjab & Haryana High Court allowed one more chance, considering the loss
he would suffer otherwise. But it was made clear that if he defaulted again, his defence would
be struck off permanently.
 The lawsuit was initiated against the defendant on 08-09-2017. The defendant made his first
appearance in court on 29-11-2017 and the court adjourned the matter to 08-01-2018 for the
defendant to file the written [Link], no written statement was filed on that date
and the court granted another adjournment until 19-02-2018. Despite this final opportunity,

48
 the defendant still failed to file the written statement within the statutory 90-day period,
leading to the striking off of his defence.

Conclusion
A written statement is the defendant’s reply to the plaintiff’s claims. It lets the defendant admit or
deny allegations and explain their defences. Counterclaims can also be added. It is a vital part of
the trial process because it ensures that both sides present their arguments clearly, helping the
court deliver a fair judgment.

2.4 Appearance of parties and consequence of non-appearance (Order IX)

Introduction
Every proceeding as far as possible must be carried on in the presence of parties as a general
principle of law. Order IX of the Code of Civil Procedure lays the laws regarding the appearance of
parties and what are the consequences of the non-appearance of parties.

What are the Appearance and Non-Appearance of Parties in CPC?

In the Code of Civil Procedure (CPC), “appearance” and “non-appearance” refer to the participation
or absence of the parties involved in a legal case during court proceedings.
Appearance: When a party “appears,” it means they actively engage in the legal proceedings by
being present in court or by being represented by their legal representative (pleader). This can
include attending hearings, presenting arguments, submitting evidence, and responding to the
court’s directions or questions.

Non-appearance: On the other hand, “non-appearance” signifies the absence of a party from the
court proceedings. If a party is required to be present in court but fails to attend or be represented
by their legal representative, it is considered a “non-appearance.” This can have consequences
depending on the stage of the case and the rules set forth in the CPC.

The CPC outlines various rules and provisions regarding appearances and non-appearances of
parties. It provides guidelines for what happens when a party is absent during hearings, including
the potential for decisions or orders to be made in their absence, such as ex-parte decrees. It also
provides provisions for parties to seek relief or remedies if they have valid reasons for not being
able to appear in court.

The Appearance of Parties to the Suit

According to the provisions of Rule 1 within Order IX of the Code of Civil Procedure, the involved
parties in the lawsuit must make their presence felt in court, either through personal appearance or
by means of their legal representatives, on the designated date mentioned in the summons.
In the event that the plaintiff or defendant, upon being directed to attend the proceedings personally,
fails to do so without furnishing a satisfactory reason for their non-appearance, Rule 12 of Order IX
confers upon the court the following powers:

Non-Appearance of Both Parties to the Suit

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In situations where both the plaintiff and the defendant do not appear before the court during the
hearing of the suit, the court is granted the authority to dismiss the suit per Rule 3 of Order IX. It’s
important to note that the dismissal of the suit under this provision does not prevent the initiation of
a fresh suit based on the same cause of action, as outlined in Rule 4.

Furthermore, the plaintiff has the option to request the court to reconsider the dismissal if they can
sufficiently demonstrate that valid reasons existed for their non-appearance. Should the court find
the justification for the non-appearance acceptable, it has the discretion to overturn the dismissal
order and establish a new hearing date for the suit.

The Appearance of the Plaintiff

In instances where only the plaintiff makes an appearance while the defendant does not, the court
has the authority to issue an ex-parte order against the absent defendant. However, it is imperative
for the plaintiff to substantiate that the summons was properly served to the defendant.

Only upon the verification of proper summons service can the court proceed to issue an ex-parte
order against the defendant, which might result in a favourable decree for the plaintiff. This provision
specifically applies to the initial hearing and not subsequent ones, as established in the legal
precedent of Sangram Singh v. Election Tribunal.

Even when granting an ex-parte order, the court bears the responsibility of ensuring justice prevails,
even in the defendant’s absence. In the case of Maya Devi v. Lalta Prasad, the Supreme Court
ruled that it is the court’s duty to ascertain the validity of statements in the plaintiff’s submission and
the appropriateness of the requested reliefs.
This provision for ex-parte orders cannot be applied if there are multiple defendants in the case and
any one of them makes an appearance.

Appearance of Defendant
The regulations pertaining to instances where only the defendant appears are outlined in Rule 7-11
of Order IX. When the defendant is present but the plaintiff is not, two scenarios may arise:
 The defendant does not concede to the plaintiff’s claim, either in whole or in part.
 The defendant concedes to the plaintiff’s claim.
If the defendant does not acknowledge the plaintiff’s claim, the court will order the dismissal of the
suit. However, when the defendant fully or partially accepts the plaintiff’s claim, the court is
authorized to issue a decree against the defendant based on that admission. For the remaining
aspects of the claim, the suit will be dismissed.
Dismissing the plaintiff’s suit without affording them a hearing is a significant matter and should only
be employed if the court is convinced that such dismissal is necessary in the interest of justice, as
established by Beaumont, C.J. in the case of Shamdasani v. Central Bank of India.

Does the same provision apply in the case of the plaintiff’s non-appearance due to their
demise?
In situations where the plaintiff fails to appear due to their demise, the court lacks the authority to
dismiss the suit. Even if such an order is issued, it would be considered void, as determined in the
case of P.M.M. Pillayathiri Amma v. K. Lakshi Amma.

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Application to set aside the dismissal
When the suit has been dismissed on the ground of non-appearance of the plaintiff then he can
make an application to set aside the order of dismissal. If the court is satisfied with the reason of
non-appearance as a sufficient cause then the court can set aside the order dismissing the suit and
fix a day for the proceeding of the suit.

Sufficient cause
For cornsidering the sufficient cause of non-appearance of the plaintiff the main point to be
considered is whether the plaintiff really tried to appear on the day which was fixed for hearing or
not. When sufficient cause is shown by the plaintiff for his non-appearance, then it is mandatory for
the court to reopen the suit. In absence of sufficient cause, it is upon the discretion of the court to
set aside the dismissal or not as held in the case of P.K.P.R.M. Raman Chettyar v. Κ.Α.Ρ.
Arunachalam Chettyar. Sufficient cause depends upon the facts and circumstances of each and
every case.
In the case of Chhotalal v. Ambala Hargovan, the Bombay High Court observed that if the party
arrives late and find its suit dismissed due to his non-appearance then he is entitled to have his suit
or application. Restored with the payment of costs.

When summon is not served

Rule 2 to 5 of Order IX lays down the provision for the situation when the summon is not served to
the defendant. One of the fundamental law of procedural law is that a party must be given a fair
opportunity to represent his case And, for this, a notice of the legal proceedings Initiated against him
is obligatory. Therefore, service summons to the defendant is mandatory and it is a conditional
precedent.
When there is no service of summons or it does not give him sufficient time for effective
presentation of the case then decree cannot be passed against him as held in the case of Begum
Para v. Luiza Matilda Fernandes

Rule 2 of Order IX also holds that when the plaintiff fails to pay costs for service of summons to the
defendant then the suit may be dismissed. But, no dismissal can be made even in the presence of
such failure if the defendant appears on the day of heating either in person or through his pleader.
However, the plaintiff is entitled to file a fresh suit when the suit is dismissed under this rule, and, if
the court is satisfied that there is a reasonable reason behind such failure to pay costs then the
court may set aside the order of dismissal.
When the summon is returned unserved and the plaintiff does not apply. for fresh summons for 7
days from which the summon is returned unserved by the defendant or any of the defendants, then
the court can dismiss the suit against the defendant or such defendants.

When the summon was not duly served to the defendant is not proved then the court can direct to
issue à fresh summon to the defendant for service. When the service of the summons is proved
before the court but the time prescribed in the summon is not sufficient for him to answer on the day
which has been fixed, then the hearing can be postponed by the court to a future date and notice
will be given to the defendant.

Ex-parte Decree

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In situations where the defendant is noticeably absent on the scheduled hearing day as outlined in
the summons, an ex-parte decree can be rendered. This type of decree is issued when the plaintiff
appears before the court on the designated day, but the defendant fails to appear despite proper
summons being served. In such instances, the court is empowered to conduct the proceedings ex-
parte and deliver a decree in favour of the plaintiff in the defendant’s non-appearance.

An ex parte decree is a valid one and it is not null and void but can be merely voidable unless it is
annulled on a legal and valid ground. An ex parte can be enforced like a bi-parte decree and it has
all the forces as a valid decree as held in the case of Panduranga Ramchandra v. Shantibal
Ramchandra

Remedies against an ex-parte decree

When an ex-parte decree has been passed against a defendant, the following remedies are
available to him.
1. He can apply to the court under rule 13 of Order IX for setting aside the ex-parte decree passed
by the court.
2. He can appeal against that decree under section 96(2) of the Code or, prefer revision under
section 115 of the code when no appeal lies.
3. He can apply for a review under Order 47 Rule 1.
4. A suit on the ground of fraud can be filed

Conclusion
The concept of appearance and non-appearance parties is pivotal in the Code of Civil Procedure
framework. Parties are required to actively participate by appearing in court proceedings or being
represented by their legal representatives. This ensures a fair opportunity to present their case,
respond to arguments, and engage in the legal process.
Non-appearance, when a party fails to attend proceedings, can lead to consequences such as ex-
parte orders or decrees, where decisions are made in the absent party’s absence. However, the
CPC also provides avenues for parties to seek relief if they have valid reasons for non-appearance,
emphasizing the importance of fairness and due process.

2.5 Examination of Parties, Interrogatories, Discovery and inspection,

Admissions, documents (Orders X, XI, XII and XIII)
Introduction
Order X of the Code of Civil Procedure, 1908 (CPC), deals with the examination of parties in
a civil suit at the first hearing. This stage plays a vital role in shaping the trajectory of the
case, clarifying the issues in dispute, and potentially aiding in an early settlement. The order
is a key procedural step, ensuring that both parties clarify the points in contention before the
trial begins.
In this article, we will explore the purpose, provisions, and practical application of Order X,
along with its interaction with other sections of the CPC and relevant case law. Additionally,

52
we will examine the importance of the rule in facilitating the efficient and effective resolution
of civil disputes in India.

What is Order X of the CPC?

Order X of the CPC lays down the rules for the examination of parties during the first hearing of a
civil suit. The purpose of this order is to help the court:
 Identify the disputed facts.
 Clarify the issues of law and fact.
 Encourage parties to opt for Alternative Dispute Resolution (ADR).
 Facilitate the early settlement of disputes or streamline the trial process.
Order X, thus, acts as a crucial mechanism to ensure that the parties are clear about the nature of
the dispute and the issues they are contesting, ensuring the fair and timely administration of justice.

Understanding the ‘First Hearing’

The term “first hearing” is not explicitly defined in the CPC. However, it refers to the first date of
hearing after the pleadings (plaint and written statement) have been filed by the parties. This
hearing is significant because it marks the court’s application of its mind to the dispute and sets the
stage for the settlement of issues.
It is essential to note that the first hearing is not merely the return of summons or the formal filing of
documents. It involves a critical examination of the contentions of both parties, the framing of
issues, and possibly even the resolution of the case or the referral of the dispute to ADR
mechanisms.

Stages of a Civil Suit

A civil suit is initiated between two parties who want their legal dispute over a civil wrong to be
addressed in a suitable court of law. A suit of civil nature in india is governed by the Code of Civil
Procedure, 1908. As a process, a civil suit goes through various stages in order to ensure that an
appropriate judgement is passed. These stages include:

Cause of action: A civil suit is filed in the court of law only after a party suffers any breach of its
right or there is any civil wrong committed by the other party. According to the law laid down in the
CPC, the cause of action is nothing but the circumstances which lead to the dispute between the
parties

Filing of suit (Section 26 read with Orders 6, 7 and 8 of CPC): Once, the cause of action is
determined by the parties (namely the plaintiff and the defendant in accordance with the provisions
of Order 1) which has led to the arising of the dispute, a suit is instituted by the way of a plaint in
accordance with the provisions of Order 4 of CPC. A plaint is a document wherein the plaintiff to the
dispute states the facts and the summary of the complaint. It lays the foundation of the entire
process of civil litigation.

Issue of summons (Sections 27-32 read with Order 5 of CPC): When a plaint is filed and
accepted by the court, the summons is issued upon the defendant to appear before the court within
30 days of the issuance of summons in accordance with the provisions of Order 5 read with
Sections 27-32 of CPC.

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Written statement (Order 8); Upon issuance of summons, the defendant is required to comply with
them and appear before the court to file a written statement under Order 8 in reply to the allegations
of the plaintiff. However, the defendant is required to specifically deny each allegation

Appearance of parties (Order 9): As per Order 9, once both the documents are filed and
accepted, the parties are required to appear before the court on a fixed date falling to which results
in the passing of an ex parte order against the defendant.

Examination of parties (Order 10); Under the purview of Order 10 of CPC, the court has the
authority to examine the parties in order to list down the issues of law and facts. The statements of
the parties during the process of examination form a part of the record of the suit.

Framing of issues: Once the parties submit their issues, the court frames the final issues based on
the facts of the case. However, the issues framed may be either facts in issue or issues of law.

Examination of witnesses and arguments by the parties: Being an important stage of a civil suit,
the plaintiff’s witnesses are examined by their own advocate and then cross-examined by the
defendant’s pleader. Once the examination is over, the parties put their arguments before the court.
If upon the perusal of the arguments, the court is of the opinion that no substantial issue exists
against the defendant, it may dispose of the case at the first hearing in accordance with Orders 12
and 15 However, otherwise, the matter proceeds with the trial under Order 18.

Judgement: Order 20 of CPC read with Section 33 talks about the judgement. After considering all
the arguments of the parties, the court pronounces the judgement followed by the decree.
Order X fits into this sequence after the filing of the plaint and written statement, before the trial
begins. This ensures that the court identifies the core issues early on, helping the case proceed
efficiently.

Rules Under Order X of the CPC

Order X contains several important rules that govern the examination of parties. Let’s examine each
of them in detail.

Rule 1: Ascertainment of Admissions and Denials

Rule 1 mandates that the court, at the first hearing, shall examine the parties (or their pleaders) and
ascertain whether the allegations made in the pleadings (plaint and written statement) are admitted
or denied. The court asks each party to explicitly admit or deny the facts stated by the other party.
If a party fails to deny a fact, it is deemed to be admitted.
Key Points of Rule 1:
 Admissions and Denials: The court aims to narrow down the contested issues. This
helps in determining which facts are undisputed and which remain in contention.
 Consequences of Silence: If a party does not deny a fact, it will be treated as admitted,
even if not explicitly stated.
 Clarity and Precision: This rule ensures that both parties are clear about what is being
contested, making it easier for the court to frame issues.

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Rule 1A: Direction to Opt for ADR
After recording the admissions and denials, Rule 1A requires the court to direct the parties to opt
for one mode of Alternative Dispute Resolution (ADR) under Section 89 of the CPC. The parties
may choose from the following modes:
 Arbitration (under the Arbitration and Conciliation Act, 1996)
 Conciliation
 Mediation
 Lok Adalat (Legal Services Authorities Act, 1987)
The court will fix a date for the appearance of the parties before the chosen ADR forum.

Objective of Rule 1A:

 Promotion of ADR: This rule promotes the amicable resolution of disputes and helps
reduce the burden on courts by referring matters to ADR.
 Efficiency: Encourages quick settlement of cases, reducing the pendency of cases in the
judiciary.
Rule 1B: Appearance Before the Conciliation Forum
If the matter is referred to an ADR forum, Rule 1B mandates that the parties must appear before
the forum to resolve their dispute. The court may direct the parties to attend and actively participate
in the conciliation process.

Rule 1C: Referral Back to Court After ADR Failure

If the ADR forum or authority finds that the matter is unsuitable for resolution through ADR, Rule 1C
allows the matter to be referred back to the court. The court then fixes a date for the parties to
appear before it.
Practical Implication:

This provision ensures that the dispute is not delayed indefinitely in ADR processes. If no
settlement is possible, the court can take over the matter and proceed with the trial.

Rule 2: Oral Examination of Party or Companion

Under Rule 2, the court has the power to examine the parties orally during the first hearing. The
court may also examine any person who is accompanying a party or their pleader if they are able to
answer material questions related to the suit. The questions can also be suggested by the parties.

Key Objective:
 Issue Identification: The goal is to identify the key issues in dispute by obtaining direct
responses from the parties.
 Subsequent Hearings: The court may also conduct oral examinations at subsequent
hearings to clarify issues further.

Rule 3: Recording of the Substance of Examination

Rule 3 mandates that the substantial part of the oral examination under Rule 2 must be reduced
to writing. This written record becomes part of the official record of the case and is used for the
framing of issues and further proceedings.

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Purpose:
 This ensures that the court’s examination is documented accurately, which can be referred
to later during the trial.

Rule 4: Consequences of Refusal or Inability to Answer

If the pleader of a party refuses or is unable to answer a material question during the oral
examination, the court can:
1. Postpone the hearing for up to seven days and require the party to appear in person to
answer the question.
2. If the party fails to appear without a valid excuse, the court may pronounce
judgement against that party or make other orders as it deems fit.

Significance of Rule 4:
 This rule ensures that parties take the process seriously and comply with the court’s
directions. It also discourages evasiveness in litigation.

Landmark Judgements on Order X

Several significant judgements have shaped the understanding and application of Order X. Some of
these are:
State of Uttar Pradesh v. Mohammad Nooh (1957)
In this landmark case, the Supreme Court ruled that a civil case could be disposed of at the first
hearing if the parties had admitted or denied the relevant facts, and no further issues remained for
adjudication. This judgement underscores the importance of clarifying issues early in the litigation
process.

Kapil Corepacks Pvt. Ltd. v. Shri Harbans Lal (2010)

The Supreme Court in this case emphasised that Rule 2 (oral examination) is not meant to record
evidence but to identify and clarify the issues in controversy. The court also held that the
examination of a party or its companion is a discovery tool, not a means to secure admissions.

Interplay with Section 89 of the CPC

Section 89 of the CPC is focused on the settlement of disputes outside the court, and Order X
Rule 1A facilitates the implementation of Section 89 by referring cases to ADR forums. -Section 89
aims to encourage alternative methods of dispute resolution, and Rule 1A complements this by
requiring the court to encourage parties to explore ADR.

Conclusion
Order X of the CPC is a crucial stage in civil litigation that ensures the efficient handling of cases.
By compelling parties to disclose their positions clearly and early, it promotes transparency and
helps identify the core issues in dispute. The integration of ADR mechanisms further helps in
decongesting the court system and encouraging quicker settlements. The examination of
parties is thus not just a procedural formality but an essential step in ensuring the fair and speedy
resolution of civil disputes in India.

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Interrogatories Order – xi
Introduction
One of the essential elements of the rule of law is its procedures. To run a fair trial, equal
opportunities shall be given to both parties to access the documents related to the case in the Civil
Procedure Code, 1908, separate chapters are provided so that a fair thal is attainable by both the
parties of the suit. After the plaint has been filed by the plaintiff and written statement by the
defendant, if the parties feel that proper facts were not disclosed in the suit, either of them can ask
for the documents to obtain proper facts of the case
Before we go further, we need to understand that there are two types of facts:
1 'Facto probanda the facts which constitute a party's case
2. 'Facto probantia the facts which will be considered as evidence if proven
Under the procedure of discovery, only Facto Probanda can be asked by the parbes.

Discovery Order 11
Under Civil Procedure Code, 1908 discovery basically means a pre-trial procedural aspect wherein
each party is given an opportunity to obtain evidence from the opposite party or parties in other
words, we can say that it is a formal process wherein the partes get a chance to exchange
information regarding the witnesses and evidence which will be presented before the court during
the trial
The main purpose of discovery is to make the parties aware of the case, that means there shall not
be any ambiguity between parties while the trial is going on Both the parties shall be clear about the
plaint made and issues thereby

There are various types of discovery -

1) interrogatonies,
2) requests for production of documents and inspection,
3) requests for admissions;
4) depositions.
5) subpoenas duces tecum,
6) physical and mental examinations

Nature and scope

The scope of this section is basically determined by the extent of discovery which can be made by
the party with the intervention of the court. The information which is obtained during the discovery is
not needed to be admissible in court As per the requirement, parties can obtain an order from the
court for the discovery of required facts/documents from the opposite party to understand the
purpose of the case. Thereby, the scope or extensibility of applying this section depends upon the
nature of the case and material which is asked by the other party. So it is the discretion of the court
to decide whether the application is covered as per the scope provided to the section under the
code or not

But there are certain limits to the extensibility of the discovery of the documents. If they are
redundant or overly burdensome, they are not called for discovery.
Therefore, it is understood that this procedure is provided to compel the other party to produce
documents on which they are relying on, other than the evidence. When such particulars regarding

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the case are asked. through questions, then they are termed as interrogatories. And if the other
party is requesting documents then it is the discovery of documents.

Interrogatories
Section 30 and Order XI Rule 1 to 11, 21 and 22 of CPC covers interrogatories. When, with the
leave of the Court, parties administer a set of questions on the other party then it is called
'interrogatories" Interrogatories shall be confined to the facts, it shall not be conclusions of law,
construction of words or documents, or inference from facts Under CPC, this is known as the 'right
to obtain information by the parties The party to whom the set of questions were administered shall
give reply to another party in writing and under cath. Discovery of interrogatories' means when the
party, while giving answers to the interrogatories, discloses the nature of the case, with affidavit

As per the provisions of the code, any party in a suit can file an application to obtain an order from
the court to ask interrogatories from the other party. So after filing the plaint, when the written
statement is filed by the defendant and when the court sends summons to parties for the first
hearing, if any party feels that there is a gap in the facts, then they can file an application under this
section and ask order from the court.

Objective
The objective of the interrogatories are:
1. To determine the nature of the case when it is not clear from the suit filed.
2. To make own case stronger by making the other party do admissions.
3. To destroy the case of the opponent

Procedure
The willing party to deliver interrogatories shall apply for leave to the court and shall submit the
proposed interrogatories to the court. As per Rule 2, the court shall decide the matter within 7 days
of filing the application by the party.
While deciding the matter the court shall take into consideration the following points.
 Any offer which may be sought by the party to be interrogated to deliver particulars;
 To make an admission;
 To produce documents associated with the matters in question; or
 Any of them.

Further, the court shall consider whether it is necessary in a particular matter, to dispose of the suit
fairly or for saving costs. After one set of interrogatories are served, the parties can not serve
another set without the permission of the court. The set of questions shall be the 'question of fact'
rather than the 'question of law'. Interrogatories shall not be allowed at the premature stage of the
case.
Within 10 days of the service, the affidavit to answer shall be filed by the party to whom the
interrogatories were administered. If the party fails to comply with such order of the court
1. the sult will be dismissed if the party is the plaintiff, and 2. if he is the defendant, his defence can
be struck off.

Who may administer interrogatories?

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Any opposite party can apply for an order for allowing the party to deliver interrogatories to another
party/les in the suit. This means that the plaintiff can apply for an order from the court to be
administered to the defendant. The defendant can also do the same. In some cases, the plaintiff/
defendant can administer the interrogatories to the co plaintiff/co-defendant.

Against whom interrogatories may be allowed?

As per Rule 5 of Order X, any party to a suit which can be a
(i)Corporation; or
(ii) Body of persons,
Which may be incorporated or not incorporated; empowered by the law to sue or to be sued; on its
own name or giving any other person responsibility to sue or any officer, against whom
interrogatories cari be filed
If a body corporate is a party to the suit, then in interrogatories it shall be specifically mentioned that
to which person or the officer the questions are to be served.

Form of interrogatories
Interrogatories are filed as per the form provided in Appendix C Form No. 2 of CPC, with required
variations as per requirement.
The reply to interrogatories is filed with an affidavit in the form provided in Appendix C Form No. 3 of
CPC, with required variations as per need.

Objections to interrogatories
Objections can be raised by the parties on the following grounds-
1. Questions are scandalous
2. Questions are irrelevant;
3. Questions are not exhibited bona fide,
4. Matters which are inquired into are not sufficiently material at this stage:
5. On the ground of privilege; or
6. Any other ground.

Rules as to interrogatories
While replying to the interrogatories, if the opposite party does not give sufficient answer, or ignore
to give an answer, then the party who administered the interrogatories can apply for an order from
the Court for ordering the other party to reply sufficiently, or reply further as the case may be. The
Court shall pass such an order to the other party after giving them sufficient opportunity to be heard.
If the party who fails to reply is the plaintiff, then the suit can be dismissed for want of prosecution. If
the party is the defendant, then it will be considered that the fact has not been defended.
As per Rule 22 of Ornter XI, the opposite party can use the answers to the interrogatories as
evidence, partly or in whole. But at the same time, the court shall check whether the part of the
answer which has been considered as evidence by the party is connected to the whole answer, or is
it adverse in nature

As per Rule 6, the parties can object some of the interrogatories but not all. If the parties want to
object to the interrogatories, then within seven days of service of such interrogatories, the party
shall file the application of the opposition as per Rule 7 of the Ortter XI of the Code

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At the same time as per Indian Evidence Act, 1872, if the parties refuse or object to produce any
particular document or information in the court, then while using it as an evidence they shall inform
the court and other parties. Without the consent of the court, such documents or information which
were refused initially can not be used as evidence later, unless it is lawful to do so

Interrogatories allowed
Interrogatories which are made to be related to any matters in issue" can be questioned to another
party. By "matter, it means a question or an issue which is related to the dispute in the suit. It need
not be an issue which arises from the dispute.
Interrogatories shall not be disallowed or discarded merely on the ground that there are other ways
to prove the fact in question. Interrogatories are not the same as pleading They need not be
material facts on which party will be relying, they can be evidence by which parties want to establish
a particular fact at the trial.

Interrogatories not allowed

Interrogatories are used when the facts laid down in the suit are not clear. However, under certain
circumstances the discovery of the facts can not be applied if
1. It constitutes evidence of the opposite party,
2. It involves the disclosure of public information or interests;
3. it contains any privileged or confidential information.

Interrogatories which are in the nature of fishing or roving enquiries are not allowed. Questions in
the nature of cross-examination shall not be asked. Questions of law are not permitted. Questions
which are not bona fide or irrelevant to the case shall not be asked.
Setting aside and Striking off Interrogatories can be made on the following grounds (Rule 7):
 Unreasonably or vexatiously exhibited,
 Prolix, Oppressive, Unnecessary or Scandalous.
The Application for setting aside or striking off interrogatories shall be made within 7 days after
service of interrogatories.

Cases
In the case of Govind Narayan and Ors. vs. Nogendra Nagda and Ors, the Rajasthan High Court
observed the importance of interrogatories and the time period in which it shall be filed by the party.
The court held the following:
 Reading section 30 with Order XI Rule 1 of the Code, it makes clear that the courts have the
discretion to allow service on interrogatories at any stage of the suit. The court confers wide
discretion, at the same time the discretion shall be exercised judiciously,
 The information asked under interrogatories shall have nexus with the dispute in question.
 The stage of the suit shall be significantly considered by the court. At the same time, it is to
be understood that the main purpose of this procedure is to save time and cost by
encompassing the issues of narrowing down the disputes.

In a recent case of 2018, Samir Sen v Rite Ghosh, the petitioner filed an application under Order XI
after five months of the closure of the plaintiff's respondent's evidence in the trial court. Because of
the delay, the lower court dismissed the application for which an appeal has been filed by the
aggrieved. The Jharkhand High Court observed that as per the scheme laid down for the trials in the

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Order XIII CPC, it requires parties to produce their original documents as per their claim founded
during the time of presentation of the plaint or filing of the written statement. And because of this,
the interrogatories are given under Order XI of the Code. And held that the defendant failed to file
the application on time, thereby the order of the trial court was right and the writ petition was
dismissed.

Discovery and inspection xi

Discovery of document
When the adversary party is simply compelled to disclose the documents which are under its
possession or power, then that is called as the discovery of documents. The discovery of documents
is covered under the Rule 12-14 Order XI of the code.

Who may seek discovery?

Any party to a suit under oath may apply for an order from the court for the discovery of documents
which are related to the matter in question of the suit from the adversary party.

Against whom discovery may be ordered?

An appropriate court can order any party of the suit to dispose of the documents which are in its
power possession to the asking party. However, the party need to be related to the suit.

Conditions
While the discovery of documents is being asked, two conditions need to be taken care of by the
court-
1. The discovery ordered is necessary for the fair disposal of the suit.
2. The discovery will save costs

Objection against discovery

The party can raise an objection if the documents required to submit comes under the purview of
the privileged documents. However, objecting by filing an affidavit would not be enough, the party
who is objecting also needs to give proper reasoning behind such objection. The proper reasoning
will enable the court to decide the objection raised by the party it is open to the court to inspect the
documents and check the viability of the objection raised by the party. Another objection which can
be filed is that discovery is not necessary at this stage of the suit

Admissibility of Documents
Not all documents disclosed during the process of discovery of documents are automatically
admissible in court. A document can only be admitted if it is relevant to the case and has some
impact on the issues being dealt with.
In Gobinda Mohun v. Magneram Bangur & Co., the court held that:
 Order 11, Rule 12 CPC (discovery of documents) is much wider in scope than Order 13
CPC (production of documents at trial).
 The right to obtain discovery from the opposite party covers all documents related to the
case, not just those that will ultimately be admissible in evidence.

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  A defendant may object to producing a document if it relates only to his own title. But if the
same document could also support the plaintiff’s title, such an objection is not valid.
 Once an order for discovery is made, the party must include all related documents in the
affidavit of documents (Order 11, Rule 13).
 If the defendant feels a document should be protected, he may raise objections later when
the court orders production (Order 11, Rule 14) or inspection (Order 11, Rule 18).

The Calcutta High Court also clarified the ruling of the A.P. High Court in P. Varalakshmamma v.
P. Bala Subramanyam (1958):
 Under Order 11, Rule 14 CPC, the court can order the production of documents at any
stage of the suit.
 The phrase “at any time” means that such an order is not dependent on a prior order of
discovery under Rule 12.

Documents disclosing evidence

The document which is related to the evidence of the adverse party can not be ordered by the court
Such orders can be detrimental to the administered party which is restricted under the code

Affidavit of documents
The documents under this rule are provided with the affidavit as under the Form No. 5 in Appendix
C with required variations as per circumstances.

Privileged documents
Privileged documents are covered under "crown privilege which is based on the doctrine of "public
welfare is the highest law. However, even if this doctrine is given the importance, it does not mean
that justice shall not be paramount Thereby when parties use it as an umbrella of defence, then
under such circumstances, the court has the right to verify the admissibility of such defence. After
checking the document, the court can decide on the matter. Mere assertion by the party will not be
entertained or accepted by the court

Oppressive discovery
While ordering the discovery of the documents it shall not be an oppressive order by the court The
court while using its discretion power shall consider two questions
1. Whether it is important to order such discovery,
2. Whether it is impossible for the administered party to give the documents ordered under
discovery

Rules as to discovery
The general rules for the discovery of the documents are as follows:
1. Any party can get an order from the court for the discovery of the documents or for inspection of
documents.
2. It is the discretion of the court to pass such an order
3. The court can use its power any time during the suit, either suo moto or by the application of the
party
4. The court shall not pass an order for the discovery, inspection or production until the written
statement has been filed by the defendant

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5. No such order shall be passed if the application is made by the defendant until he has not filed a
written statement
6. Discovery of the document shall not be made if the court is not of the opinion that this order will
lead to fair disposal of the suit of useful for saving cost
7. A party to whom an order of discovery of documents has been passed, as a general rule, shall
produce all the documents which are under his possession related to the suit
B. If the parties are taking any legal protection under the privileges provided under the code, then
the court shall verify such documents and give the protection
9. Failure to comply or default from the side of the parties to the order for discovery, production or
inspection, can lead to adverse inference on the party.

Inspection of documents
Under Order XI Rule 12-21 of the CPC, the rule for the inspection of discovery is provided. As per
Rule 12 of the code the party can compel other parties to produce the documents without filing an
affidavit to apply to the court, relating to any matter of question-related to the suit. However, such
documents need not be admissible in court unless they give out some connection in a matter of
controversy.

As per the Rule 15-19 of Order XI of the code, the inspection of documents can be divided into two
categories:
1. The documents which are referred to in the affidavits or pleadings of the parties.
2. The documents which are not referred to in the pleadings of the party but are in the power or
possession of the parties.
And the parties are allowed to get the inspection of the former category documents, not the latter
one.
Privileged documents

Privileged documents are:

1. Public records,
2. Confidential communication;
3. Documents which have exclusive evidence of the parties' title.

Such mentioned privileged documents are protected from the production. So to get benefit from this
privilege and to avoid the risk of repetition, the court can order the parties to produce the document
to the court. And the court can inspect such documents and ascertain the validity of the claims
which were made to make that set of documents underprivileged.

Premature discovery
As per rule 20, a discovery is termed as premature discovery or inspection
1) When the right to discovery is based on the determination of any issue or question in dispute; or
2) For any reason, it is desirable that any issue or question in a suit should be determined before
deciding upon the right of discovery,

Non-compliance with order of discovery or inspection

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As per Rule 21, the order of the court is binding in nature, and the parties who do not comply shall
be liable to pay the penalty. Hereby, we can understand that the intent of the legislature to provide
such provision is
1. To compel the parties to disclose all the material documents and facts on oath.
2. To restrict the parties from coming up with new documents which are actually in power or
possession of the party during the trial.

The court has the discretion to postpone a premature inspection or discovery. Under such
circumstances the first thing court shall do is to determine that question or issue and afterwards,
deal with the discovery. The main logic of this provision is to enable the court to distinguish between
the difference of deciding an issue in suit from deciding the suit Itself. However, it needs to be kept
in mind that this provision will not work if the discovery in itself is necessary for solving the issue or
question.

The importance of such provision is that if the defendant denies complying with the provision it will
be deemed that the defense from the defendant's side will be struck off and that will restore the
position of the defendant to where he had been as if he has not defended. In the case, if the plaintiff
does not comply to the provisions then it will lead to an adverse effect that means the plaintiff will
disentitle to file a case as a fresh suit on the same cause of action and res judicate will be
applicable. Therefore, non-compliance will impact the case adversely.

Admissions - Order 12
Admission basically means the voluntary acknowledgement made by the person against his own
interest. It can be an important piece of evidence against a person. It can either be in oral, electronic
form or documentary in nature. Admissions are different from the confession which is made under
the criminal law. Admission is weaker than confession because the parties have the right to prove
that admission made earlier was false

However, assertions are different from admission, It can be made in favour of themselves. It can be
true or false, therefore assertions are not considered as an important piece of evidence which can
be used against a person.

Importance
As per the case of Bharat Singh And Anr vs Bhagirathi, the Supreme Court held that
Admissions are substantive evidence by themselves. But as per section 17 and section 21 of the
Indian Evidence Act, they are not conclusive in nature. However, if admission is proved beyond
doubt and duly proved, then irrespective of the fact if the witness appeared in the witness box or
not, the admission can be considered admissible.

In the case of Biswanath v Dwarke Prased, the Apex Court observed that:
1. The admissions are made by the maker against himself unless otherwise proved or explained.
2. The admissions are considered as proprio vigore that means phrase which by its own force.
In another case of Supreme Court, Bhogifal Chunilal Pandya vs The State Of Bombay, it has been
stated that even if admissions made are not communicated to the other person, then also that can
be used against him. For example: if the person has written in the accounts book. regarding debt,
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then if such evidence is available then that will be considered as an admission even if the debt was
[Link] to other people.

Kinds of admissions
Under the Code, the admissions are admitted in three ways-
1. By agreement or by notice;
2. Actual admissions, oral or by documents
3. The express or implied admissions from the pleadings or by non-traverse by agreement

Conclusiveness of admission
The admissions are not conclusive in nature. They can be erroneous or gratuitous. Admissions
made can be withdrawn or explained away. It can be proved wrong. The context of the admission
can be made after hearing the pleadings in entirety. Oral admissions prevail over documentary or
records of rights. Even the admission, if made earlier, can be proved to be collusive or fraudulent.
And one more important thing is, if the admissions are made by the co defendant then that can Not.

Notice to admit case

As per flute 1, any party to the suit can admit the whole or part of the case of the other side in
writing.

Notice to admit documents

Within seven days of the notice served by the other party to admit the documents, the party shall
respond to the notice. If not responded on the mentioned time then the party which fails to do so will
be liable to answer the delay and the costs of providing them.
Every document which was called upon to admit if:
1. Not denied specifically or by necessary implication, or
2. Not stated to be admitted by the party in their pleading, or
3. Not replied during the reply to the notice,

shall be deemed to be admitted.

One exception to the above provision is the person under disability.

If a person without any valid reason refuses or neglects to admit documents then that person shall
be penalised and will be made to pay to the opposite party. The court can suo moto call the party to
admit the documents. The form of the notice to submit the documents shall be in Form No. 9 in
Appendix C, with variations as per requirement.

Notice to admit facts

Any party in the suit can call the other party to admit facts of the case by giving them notice which
shall not be later than nine days before the day fixed for the hearing And the other party if refuses or
neglects to admit the facts then within six days after service of notice or as per the time prescribed
by the court, shall be informed to the court. However, the costs of proving such fact or facts shall be
paid by the party.

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Further admissions shall be used only for the purpose of the suit for which it has been made. It shall
not be used against the party on any other occasion or in favour of any person other than the party
giving the notice.
The form of the notice shall be as per Form No.10 in Appendix C and the admissions made thereby
shall be in Form No. 11 in Appendix C, as per the requirements needed.

Judgment on admissions
As per Rule Order 12, Judgment on admissions can be read as-
Where admissions are made during:
1. Facts or pleading or otherwise,
2. May be in oral or in writing,

The court at any stage of the suit

1. Either on the application or of its own motion,
[Link] waiting for the determination of questions by parties;

can give out judgment as it may think fit, with regard to such admissions.
The relief which is provided under this section is discretionary in nature, It gives wide discretion to
the court by giving it the power to give decree in the suit and at the same time, it is not bound to
pass a decree in a reasonable and proper manner. Even the court can call for evidence before
passing such decree. But if averments made in the written statement which leads to trivial issues
then under such circumstances the decree under this provision shall not be passed. In case of RK.
Markan vs. Rajiv Kumar Merkan, wherein it was observed as under:
“For passing a decree on the basis of admission of the defendants in the pleadings, the law is well
settled that the admission has to be unequivocal and unqualified and the admission in the written
statement should also be taken as a whole and not in part

While talk about judgments which are relied upon by the court passing decree, those must be clear,
unequivocal and categorical, it shall not be vague and conditional.

However, in the case of Razie Begurn v. Sahebzadi Anwar Begum, the Apex Court discouraged the
courts to pass a decree under this provision which not only affects the parties but which also affects
the generations.

The court observed that while passing a decree under Rule 6 Order 12, the judge should also look
at Rule 5 Order 7 of the code. By reading both sections at the same time it shall be coricluded that
decree passed under Rule 6 is applicable to commercial transactions only, not otherwise where the
claim is based on documents which need proof. So in the matters of will, gift, salo or coparcenary
documents admissions can be proved to be erroneous, hence, they shall not be treated as proved
on the basis of such admissions.

Production, impounding and return of documents- Order 13

Production of documents

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As per Rute 1 of Order XIII, the parties or their pleaders shall produce the documents at or before
the settlement of disputes.

Admission of documents
Subject to the provisions of the Code the admission of the documents are allowed as eviderice in
the suit when the following particulars are made:
1. The number and title of the suit,
2. The name of the person producing the document,
3. The date on which it was produced, and
4. A statement of it having been so admitted;

The endorsed documents shall be signed by the Judge.

Where the admission of documents in evidence is
 An entry in a letter-book or a shop book, or
 Other accounts which are in current use, or
 Entry in a public record produced from the public office or by a public officer, or
 An entry in a book or account belonging to a person other than party on whose behalf the
book or account is produced; under such circumstances, the person can produce a copy of
the document, after the proper examination, comparison and certification as per Rule 17 of
Order VII of the Code.
 Further, the documents admitted into evidence shall be part of the record of the suit

Return of documents
If any party to the suit or not is having the desire to receive back any of the documents submitted by
him in the suit which is placed on the record is entitled to receive the documents unless it is
impounded by the court under Rule &
The court can return the documents on the following grounds:-
1. Where the suit is one in which an appeal is not allowed, when the suit has been disposed of, and;
2. where the suit is one in which an appeal is allowed when the Court is satisfied that the time for
preferring an appeal has elapsed and that no appeal has been preferred or if an appeal has been
preferred when the appeal has been disposed of;
3. During the pendency of the suit, the party can receive the documents If the following conditions
are fulfilled:
 the party is substituting the original document with a certified copy from a proper officer,
 Undertakes to produce the original copy if required.
 While returning the document which has been admitted in evidence, a receipt shall be given
to the person who is receiving it.

Rejection of documents
Rule 3 gives the discretion to the court to reject the documents on the basis of inadmissibility or
irrelevance of the document. The court while rejecting the documents shall also mention the
grounds of such rejection.

Impounding of documents
The court can order the parties in the suit to produce any documents or book before the court as per
Rule 8 notwithstanding Rule 5 or Rule 7 of Order 13 or Rule 17 of Order 7 of the code.

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The documents or books impounded by the court shall be in the custody of an officer of the court,
for such period with subject to conditions if required

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

Essentials
There are some basic essentials which are required to be fulfilled while submitting the affidavit in the
court
1. It must be a declaration by a person.
2. It shall not have any infererices, it shall contain facts only.
3. It must be in the first person.
4. It must be in writing.
5. It must be statements which are taken under oath or affirmed before any other authorized officer
or a Magistrate.

Contents of affidavit
As per Rule 3, an affidavit shall contain only those facts to which the deponent is aware off as true
to his personal knowledge. However, Interlocutory applications can be filed wherein he can admit
his bellef

Evidence on affidavit
As per section 3 of the Evidence Act, affidavits are not considered as evidence. When there is a
need to prove the facts, oral evidence is normally token into consideration by the court. However,
Rule 1 Order 19 is invoked by the Court when it finds that it is necessary to make an order for any
particular fact which may be proved by affidavit. If a person provides evidence under the affidavit
then the opposing counsel has the right to cross-examine or reply-in-affidavit.

Further, the person who is making an affidavit shall put on those facts only to which he has true
personal knowledge. If he gives a statement, not to his personal knowledge then in such case he
shall mention the true source. The counsel shall advise the deponent to make sure that he puts
facts which he knows rather than what he belleves.
The court can reject the affidavit if it is not properly verified and not in conformity with the rules of
the code. At the same time court can also give an opportunity to the party to file the affidavit
properly.

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In the interlocutory applications like interim injunctions, the appointment of receiver, attachment of
property wherein the rights of the parties are not determined conclusively, can be decided on the
basis of the affidavit.

False affidavit
Under Section 191, 193, 195, 199 of IPC,1860, filing a false affidavit is an offence. Giving a lenient
view will undermine the value of the document and it will harm the proceedings and will provide no
justice to the parties, Criminal contempt of court proceedings can be initiated by the court against
the person who files false affidavits in the court of law. Strict actions are taken against public officials
who files false affidavits.

As per section 193 of the IPC

a person who intentionally gives false evidence or fabricates false evidence during a judicial
proceeding, he shall be punished with seven years of imprisonment and fine;
and whoever intentionally gives or fabricates false evidence in any other case, shall be punished
with imprisonment of either description for a term which may extend to three years, and shall also
be liable to fine.

Conclusion
The procedures provided under the CPC are so important, that if not followed properly, can
adversely affect the parties. The court has discretionary powers under Order 11, 12, 13 and 19 to
pass such order which it deems fit to adjudicate matter fairly. The parties shall also follow the
procedures provided within the time frame, so that the case can be disposed off quickly and
effectively.

2.6 Framing of issues, Disposal (Order XIV, XV)

Introduction:-
The framing of the problems is likely the most crucial phase of a civil lawsuit’s trial. The right and
accurate issues must be framed in order to get the best decision in the quickest amount of time.
Issues that are inaccurate and wrong could waste precious court time.
Siddhi Chunilal vs. Suresh Gopkishan (2009(6) BCR 857 In this case, it was observed that if
correct and accurate issues were not framed, it leads to gross injustice, delay and waste of the
court’s valuable time in deciding the matter. If defendant makes no defense, framing and recording
issue by the Court does not arise, in such a case, a Court need not frame and record issue in as
much as the defendant makes no defense at the first hearing of the suit.

What are the issues or definition of issues:- Issues mean a single material point of fact or law in
litigation that is affirmed by one party and denied by the other party to the suit and that subject of
the final determination of the proceedings.

When issues arises? Issues arise when a material proposition of fact or law is affirmed by one
party and denied by the other party to the suit.

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Importance of issues
To decide a case properly the framing of the issue should be appropriate.
Framing of issue helps the parties to lead necessary evidence in support of the claims and the
reliefs. It will give the other party to confront or construct the case to bring home his defence.
Issues are the lamp post which enlightens the parties, the trial and the appellate court as to what
the controversy is, what the evidence must be, and where the truth in the dispute lies.

When issues are framed?:-

According to rule 1, issues are framed and recorded by the court at the first hearing after reading
the plaint, written statement, examining and hearing of parties and their pleaders.
The issues are to be framed by the court from the following sources:-
 Allegations of parties or their behalf on oath
 Allegations made in the pleadings/interrogatories
 The contents of documents produced by both parties.

Framing of Issues
1. When do issues arise?
Issues are formed when one party states a material fact or law and the other party denies it.
2. What are material propositions?
o These are important statements of fact or law.
o The plaintiff must state them to show his right to sue.
o The defendant must state them to show his defence.
3. How are issues formed?
Each material point that one party claims and the other denies becomes a separate issue.
4. Types of issues:
(a) Issues of fact (related to facts of the case)
(b) Issues of law (related to legal points)
5. At the first hearing:
The court will:
o Read the plaint and written statement,
o Examine the parties (if needed),
o Listen to both sides,
o Find out the points on which parties disagree,
o Frame and record issues necessary to decide the case.
Note: If the defendant does not defend at the first hearing, the court does not need to frame
issues.

Court to Pronounce Judgment on All Issues (Rule 2):

1. Normally, the court should give judgment on all issues.
2. But if both fact and law issues exist, and the case can be decided only on a legal issue, the
court may decide that issue first.
o Example: Issues about the jurisdiction of the court, or a legal bar to the suit (like
limitation).

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Sources from which issues may be framed:
The court can frame issues from:
(a) Statements made by parties or their pleaders on oath.
(b) Statements made in pleadings or answers to interrogatories.
(c) Documents produced by either party.

Examination before framing issues (Rule 4):

If the court thinks it cannot frame issues correctly without examining a person or looking at a
document, it may:
 Postpone framing issues for a short time (not more than 7 days).
 Order that person to appear or the document to be produced.

Power to amend or strike out issues (Rule 5):

 The court can change or add issues at any time before passing a decree if necessary.
 It can also remove wrongly framed issues.

Issues by agreement (Rules 6 & 7):

 If both parties agree on a question of fact or law, they can write it down as an issue and make
an agreement about what will happen based on the court’s decision.
 Example: If the court decides “Yes,” then money/property will be given, or an act will be done.
 If the court is satisfied that the agreement is genuine and fair, it will decide on that issue and
pass judgment accordingly

Disposal (Order XV)

Introduction

 The Code of Civil Procedure, 1908 (CPC) provides specific provisions for Disposal of the Suit at
the first hearing under Order XV.

 These rules are crucial in ensuring judicial efficiency by allowing courts to dispose of cases that
can be decided without recording evidence or where parties admit to claims.
 This section of the code plays a vital role in reducing judicial backlog and ensuring speedy
justice.

Order XV of the Code of Civil Procedure

Rule 1: Parties not at Issue
 When parties are present at the first hearing, and it appears that they are not at issue on any
question of law or fact, the Court may at once pronounce judgment.
 This rule emphasizes immediate disposal when:
o There is no dispute between parties on material facts.
o No substantial question of law needs to be determined.
o Both parties agree on the facts and legal position.

Rule 2: One of Several Defendants Not at Issue

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 This rule entails that when there is more than one defendant, and it is proved that any of
such defendant is not in issue with the plaintiff related to any fact or law.
o The Court may pronounce the judgement against such defendant.
o The suit shall precede against the other defendants.

 Where either party satisfies the Court that:

o The other party has admitted the claim or defense (either in pleadings or otherwise)
o The admission is clear, unambiguous, and unconditional.
o The Court shall give judgment against the party who made such admission.
o This rule promotes efficiency by avoiding unnecessary trials when admissions are
made.

Rule 3: Parties at Issue

 When it is observed by the court that no further argument or evidence are required to upon
the issues framed and no injustice will result the Court may proceed to determine such
issues, and, if the finding thereon is sufficient for the decision, may pronounce judgment
accordingly, whether the summons has been issued for the settlement of issues only or for
the final disposal of the suit.
o Where the summons has been issued for the settlement of issues only, the parties or
their pleaders are present and neither of them object.
When the only question remaining after the first hearing pertains to:
 The amount of money to be recovered.
 The party's title to relief claimed.
 The nature of that relief.
o The Court may proceed to determine such questions and pronounce judgment
accordingly.

Rule 4: Failure to Produce Evidence

 As per this rule the court may at once pronounce judgment, or may, if it thinks fit, after
framing and recording issues, adjourn the suit for the production of such evidence as may be
necessary for its decision based upon the issues where:
o The summons has been issued for the final disposal of the suit and either party fails
without sufficient cause to produce the evidence on which he relies.

 The Court has the authority to:

o Pronounce judgment immediately after the parties conclude their statements.
o Fix a future day for pronouncement of judgment.
o Adjourn the case for production of evidence if necessary.

Significance of Order XV
 Order XV (Rules 1-4) represents a significant procedural mechanism designed to:
o Expedite the judicial process by allowing immediate disposal of suits where
appropriate.
o Reduce unnecessary litigation where parties are not genuinely in dispute.
o Promote judicial economy by avoiding protracted trials in cases where admissions are
made.
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 o Ensure efficient administration of justice by enabling courts to focus on genuinely
contested matters.

Conclusion
These rules reflect the legislative intent to balance the need for thorough judicial examination
with the equally important goal of preventing unnecessary delays in the judicial system. They
provide a framework for courts to exercise their discretion in disposing of cases at the earliest
possible stage while ensuring that no party's rights are prejudiced.

2.7 Trial, Summons, Hearing of suit, evidence, judgment and decree and costs
(Order V, Order XVI-Order XXA)
Meaning of Summons
In a civil suit, after a plaintiff files a plaint in court, the next step is to inform the defendant about it.
For this purpose, the court issues a document known as a summons.
A summons is a written notice sent by the court to the defendant to inform him that a case has been
filed against him. It directs the defendant to appear before the court on a specific date and either
present himself or file a written statement.
Though the CPC does not define the term, according to the Oxford Dictionary, a summons is a
document issued by a court of law requiring a person to appear before it for a specific purpose.
Provisions related to summons are given under Order 5 of the Code of Civil Procedure, 1908.

Object of Summons
The main purposes of summons are:
1. To inform the defendant that a legal case has been filed against him.
2. To give the defendant an opportunity to present his side of the case.
3. To ensure compliance with the principle of natural justice and the rule of Audi Alteram
Partem (hear the other side).
4. To secure the presence of witnesses, parties, or any person involved in the suit.
5. To require the production of relevant documents in court.

Essentials of Summons
According to Order 5, Rules 1 and 2 CPC, the essentials of a summons are:
1. Every summons must be signed by the judge or an officer authorized by him.
2. It must be properly sealed by the court.
3. If the defendant has already appeared in court at the time of filing the plaint, no summons is
required.
4. The defendant must file a written statement within 30 days of receiving the summons. In
exceptional cases, the court may extend the period up to 90 days.
5. A copy of the plaint must be attached to the summons.
6. The summons must follow the prescribed format given in Appendix B of the First Schedule
of CPC.

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Contents of Summons (Order 5, Rules 5–8)
A summons must contain:
1. The purpose for which it is issued – whether for settlement of issues or final disposal of the
suit.
2. The exact date and time for the defendant’s appearance in court, ensuring reasonable
opportunity.
3. A list of documents the defendant must produce.
4. If issued for final disposal, it must also direct the defendant to produce witnesses on his
behalf.

Summons to Defendants
 When a suit is instituted, the defendant is required to file a written statement within 30 days
of receiving the summons.
 The court may extend the time up to 90 days if the defendant shows a valid reason.
 If the defendant was already present when the plaint was filed and admitted the claim, no
summons is issued.
 Section 27 CPC requires the issuance of summons to the defendant when a suit is filed.
 Section 28 CPC provides that if the defendant lives in another state, the summons will be
sent to the court of that area, which will then serve it.

Appearance of Defendant (Order 5, Rule 3)

The defendant may appear:
1. Personally,
2. Through his lawyer (pleader), or
3. Through a pleader along with another authorized person.
The court also has the power to order the defendant to appear personally if necessary.

Exemptions from Appearance

Certain persons are exempted from personal appearance in court:
 Section 132 CPC: Women who, due to customs, cannot appear in public.
 Section 133 CPC: High constitutional authorities like the President, Vice-President,
Governors, Ministers, Speakers, Supreme Court and High Court Judges, etc.
 Rule 4 also exempts persons living far away (beyond 50–200 miles from the court).

Mode of Service of Summons

To ensure fairness, summons must be properly served. Modes include:
1. Personal Service: Delivered directly to the defendant, his agent, or family members.
2. Court Service: Through post, email, courier, fax, or any recognized means. Refusal to
accept is treated as valid service. (Salem Advocate Bar Association v. Union of India, 2005).
3. Special Cases:
o Defendants in another state – summons sent to the local court there.
o Defendants outside India – service through post, email, or political agents.
o Public officers, soldiers, prisoners, companies, and partners – summons served
through their departments or authorized persons.
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Refusal and Objections to Summons
 Refusal: If the defendant refuses to accept the summons or sign acknowledgment, it is
treated as duly served (Puwada Venkateswara v. Chidamana Venkata, 1975).
 Objections: If the defendant has objections, they must be raised at the earliest opportunity.
Otherwise, the chance is deemed waived (Lineru Lal Shanti Lal, 1984).

Conclusion
Order 5 of CPC lays down detailed rules regarding issue and service of summons. Summons
ensure that the defendant is informed, given a chance to defend, and that the trial proceeds fairly.
However, many defendants try to avoid or ignore summons, which causes delays and adds to the
backlog of cases. Courts and lawmakers must work to make the service of summons more effective
to reduce delays in justice.
ay,

Trial Procedure

INTRODUCTION
The Code of Civil Procedure (CPC),1908, provides the procedural framework for civil litigation in
India. Its primary purpose is to ensure the orderly and just conduct of civil proceedings, establishing
a systematic approach to trials to maintain fairness and consistency. The trial process is composed
of several procedural steps with specific timelines to ensure efficiency and clarity. This article
outlines the primary stages involved in a civil trial under the CPC and the typical timelines
associated with each stage.

1. INSTITUTION OF SUIT (ORDER IV,CPC)

The trial process begins when a suit is instituted. A suit can be filed in a court of competent
jurisdiction by presenting a plaint, which is a written statement of the plaintiff’s claim. The plaint
must contain essential information, including the facts of the case,, the relief sought, and any
relevant provisions.
 Timeline: The timeline for filing a suit can vary depending on the nature of the case.
However, the Limitation Act,1963 prescribes specific periods within which suits must be
filed. For example, suits related to contracts generally must be filed within three years
from the date of cause of action.

2. SERVICE OF SUMMONS (ORDER V,CPC)

Once a suit is instituted, the court issues a summon to the defendant. A summon is a legal
document that notifies the defendant of the suit and provides details of the date of the hearing. The
summon also requires the defendant to file a written statement, responding to the allegations in the
plaint.
 Timeline: The CPC provides a 30-day period for the defendant to file a written statement
from the date of service of summon. However, if necessary, the court may grant an
extension up to 90 days in total, as per Order VIII, Rule 1 of the CPC.

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3. FILING OF WRITTEN STATEMENT (ORDER VIII,CPC)
The defendant is required to submit a written statement that addresses each of the claims made in
the plaint. The statement must deny, admit, or explain the facts alleged by the plaintiff and may
contain any counterclaims the defendant wishes to raise.
 Timeline: The defendant must file the written statement within 30 days of receiving the
summons. The court may grant an extension up to 90 days in exceptional cases.

4. REPLICATION BY PLAINTIFF (ORDER VIII,CPC)

If the defendant raises new facts or allegations in their written statement, the plaintiff has the option
to file a replication. This document is a rebuttal to the points raised in the written statement, serving
as the plaintiff’s final response.
 Timeline: There is no fixed timeline for filing a replication in the CPC; however, it is
generally expected to be filed soon after the written statement to avoid delays in
proceeding.

5. FRAMING OF ISSUES (ORDER XIV,CPC)

Once the pleadings are complete, the court frames the issues in the case. Issues are points of
dispute between the parties and may relate to questions of law or fact. These issues set the scope
of the trial and guide the court in determining the facts and laws that will be considered.
 Timeline: Generally, framing of issues takes place within a few weeks of the completion of
pleadings, though there is no specific timeline mandated by the CPC. Courts endeavor to
frame issues promptly to prevent delays.

6. DISCOVERY AND INSPECTION (ORDER XI,CPC)

During this stage, both parties are allowed to seek additional information, documents, or evidence
from the other party. Discovery helps each party assess the strength of the opponent’s case. It may
include interrogatories, or written questions, that the opposing party must answer, as well as notices
to produce documents for inspection.
 Timeline: Courts usually allot a period of 30 days to complete discovery and inspection
once the issues are framed. The timeline may be extended if the court deems it
necessary.

7. ADMISSION AND DENIAL OF DOCUMENTS (ORDER XII,CPC)

Following discovery and inspection, both parties are required to admit or deny the authenticity of
each other’s documents. This process reduces unnecessary disputes and streamlines the evidence
that will be considered at trial.
 Timeline: This stage generally occurs immediately after the discovery and inspection
phase. Courts may allow approximately 15 days for the admission and denial of
documents.

8. FILING OF AFFIDAVITS AND EVIDENCE (ORDER XVIII,CPC)

Each party is required to present their evidence, usually through affidavits, which are written
statements sworn before an authority. This evidence includes any documents, witness testimonies,
or other relevant materials. The party who bears the burden of proof, typically the plaintiff, presents
evidence first, followed by the defendant.

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  Timeline: Generally, affidavits and evidence must be filed within 30 days of the
completion of admission and denial of documents.

9. EXAMINATION OF WITNESSESS (ORDER XVIII,CPC)

During the trial, witnesses are examined to verify the truthfulness of the statements made in their
affidavits. Witnesses undergo three stages of examination:
 Examination-in-chief: The party that called the witness asks questions to support its
case.
 Cross-examination: The opposing party questions the witness to test the reliability and
accuracy of their testimony.
 Re-examination: The calling party may ask further questions to clarify points raised
during cross-examination.
 Timeline: Each witness examination typically occurs on the scheduled trial dates. Trials
are ideally conducted on consecutive days to avoid delays, but depending on the
complexity of the case and the availability of witnesses, the timeline can vary.

10. FINAL ARGUMENTS (ORDER XVIII, RULE 2, CPC)

After all evidence is presented, both parties have an opportunity to make their final arguments. The
counsel for each party presents an overview of their case, emphasizing the key evidence and legal
points that support their client’s position. The plaintiff argues first, followed by the defendant, and
then the plaintiff may offer a rebuttal.
 Timeline: Final arguments generally occur within a few days after the completion of the
evidence stage. The duration can vary depending on the complexity of the case and the
court’s schedule.

11. JUDGMENT (ORDER XX,CPC)

After hearing the final arguments, the judge pronounces the judgment, which is the final decision in
the case. The judgment must be based solely on the evidence and arguments presented during the
trial. The judge is required to provide reasons for the decision, addressing each issue framed in the
trial.
 Timeline: The CPC mandates that judgment should be pronounced within 30 days of the
completion of arguments. In exceptional cases, this period may be extended to 60 days.

12. DECREE (ORDER XX,CPC)

Once the judgment is pronounced, a decree is drawn up. A decree is a formal expression of the
court’s decision, specifying the relief granted and any conditions imposed. The decree must be
consistent with the judgment and serves as the enforceable order in the case.
 Timeline: The decree is usually issued shortly after the judgment, typically within a week.
In some cases, if the decree drafting involves complex calculations or detailed conditions,
it may take a bit longer.

13. EXECUTION OF DECREE (ORDER XXI,CPC)

After obtaining a decree, the winning party may file for execution if the losing party fails to comply
with the terms. The execution process involves taking steps to enforce the decree, which may
include seizure of assets, attachment of property, or other measures to ensure compliance.

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  Timeline: A decree can be executed immediately after it is issued, though there are
statutory periods for compliance. If the decree-holder files an execution petition, the court
sets dates for proceedings until the decree is fully executed.

TIMELINES IN PRACTICE AND PRACTICAL CHALLENGES

While the CPC provides a structured framework for the trial process, delays are not uncommon in
the practical conduct of civil trials. Some of the common reasons for delays include:
1. Service of Summons: Delays in serving summons, especially to defendants in remote
locations or those avoiding court appearances, can slow down the trial process.
2. Witness Availability: Scheduling issues with witnesses can cause prolonged trials.
3. Adjournments: Frequent adjournments requested by parties or counsel often contribute
to delays. To address this, the CPC mandates the reasons and limits for adjournments
under Order XVII.

AMENDMENTS FOR TIMELY DISPOSAL

The CPC has undergone several amendments to address delay and expedite trials. The
Commercial Courts Act, 2015, introduced stricter timelines and procedural rules for commercial
disputes, which has significantly reduced delays in such cases.

CONCLUSION
The CPC trial process is structured to ensure fair and timely adjudication of civil disputes. Each
stage has its specific purpose, contributing to a systematic approach for resolving legal conflicts.
Despite procedural challenges, ongoing reforms aim to make civil litigation more efficient, ensuring
justice is delivered in a timely manner. By adhering to prescribed steps and timelines, the judiciary
and parties involved can work together to uphold the principles of justice, equity, and good
conscience in civil litigation.

judgment and decree

Introduction
The judiciary plays an important role in upholding the rule of law and ensuring justice in society. In
the judicial process, judgements and decrees are fundamental concepts that every law student,
practitioner and scholar must understand. These two terms, while related, have distinct meanings
and roles within the legal framework. The difference between a judgement and a decree lies in their
roles and contents within the judicial process.

Judgement
A judgement is a formal pronouncement made by a judge based on the facts, evidence and legal
arguments presented during a trial. According to Section 2(9) of the Code of Civil Procedure, 1908,
a judgement is defined as a statement given by the judge on the grounds of a decree or order. It is a
comprehensive document that encapsulates the court’s reasoning, findings and decisions.

Judgements serve multiple purposes:

 Resolution of Disputes: They provide a final decision on the matters in dispute between the
parties.

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  Precedential Value: Judgements set precedents for future cases, guiding lower courts and
ensuring consistency in the application of the law.
 Transparency: They ensure transparency in the judicial process by documenting the
reasons behind the court’s decision.

Contents of a Judgement
The Code of Civil Procedure, 1908, outlines the essential components of a judgement. According to
Rule 4 of Order XX:
 Summary of Pleadings: This is a concise statement of the case, summarising the claims
and defences of the parties.
 Issues: These are the specific points of contention that the court needs to resolve.
 Findings on Each Issue: The judgement must provide the court’s findings on each issue
based on the evidence and arguments presented.
 Ratio Decidendi: This is the legal reasoning or rationale behind the court’s decision on each
issue.
 Relief Granted: The judgement must specify the relief or remedy awarded to the prevailing
party.

Pronouncement of a judgement
The word pronouncement means to make an official public announcement. Pronouncement of a
judgement means that after the hearing is completed le. after the Court has heard the pleadings of
the parties, the judgement shall be announced by the Judges in an open Court, either at once or at
some future day, after providing due notice to the parties or their learned counsels

If a judgement is not pronounced immediately then it must be pronounced within 30 days from the
date of the conclusion of hearing. However, sometimes it so happens that due to exceptional and
some extraordinary reasons like a bank holiday, strike or some other situation it may be delivered
within 60 days from the conclusion of the hearing. It is not mandatory for a judge to read out the
whole judgement and it would be enough if only the final order is pronounced. The judge shall put
the date on which the judgement was pronounced along with his signature, Rule 2 Order XX of
Code of Civil Procedure, 1908 provides a judge with the right to pronounce the judgement which is
already written but is not pronounced by his predecessor

After the Amendment Act of 1976, the time limit was provided between the hearing of the arguments
and the pronouncement of the judgement. Prior to this amendment no time limit was provided as
such, Such a time limit was provided because there was indefinitely continuous imposition from all
over India

Copy of the judgement

Once the judgement is pronounced the copies of that particular judgement should be immediately
made available to the parties on payment of costs as specified, by the party applying for such copy
of such charges as may be specified in the rules and orders made by the High Court (H.C.) Such a
rule is specified in Order XX Rule 6 of the Code of Civil Procedure 1908.

Alteration of a judgement
Once a judgement is dated and signed by the judge it can only be altered or amended if

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There are arithmetical or clerical errors. (clerical errors refer to the errors made by clerks and
arithmetical errors refer to errors made in numbers such as addition, subtraction, multiplication and
division).
There are errors due to accidental slips or omissions (these errors take place when some essential
element is left unnoticed) (Section 157) on review (Section 114).

Examples and Analysis

Consider a case where two parties are involved in a property dispute. The judgement would start by
summarising the pleadings, detailing the property claims made by each party. The issues might
include questions about the validity of the property title and the rightful owner.
The court would then analyse the evidence, such as property deeds and witness testimonies, to
make findings on each issue. The ratio decidendi would explain the legal principles applied, such as
property law statutes and precedents. Finally, the judgement would state the relief granted, such as
awarding the property to one party and possibly ordering compensation for the other.
Decree

A decree is the formal expression of an adjudication that conclusively determines the rights of the
parties with regard to the matters in dispute. Section 2(2) of the Code of Civil Procedure, 1908,
defines a decree as the formal expression of an adjudication that, 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. Unlike a judgement, which is a detailed document, a decree is a
formal declaration and is conclusive in nature.

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

Deemed Decree
A decree shall be deemed to include the rejection of a plaint and any question within Section 144 of
Code of Civil Procedure, 1908 but shall not include:
any such sentence(adjudication) from which it appears that an appeal lies as an appeal from an
order, or any such order of discharge(dismissal) of default.
Decrees are critical because:
 Finality: They provide a conclusive determination of the rights of the parties, leading to the
final disposal of the suit.
 Enforceability: Decrees are enforceable in a court of law, allowing the prevailing party to
seek enforcement of the court’s decision.

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Types of Decrees
Decrees can be classified into three types:
 Preliminary Decree: This determines the rights of the parties but does not completely
dispose of the suit. For example, in a partition suit, the court may pass a preliminary decree
determining the shares of the parties without dividing the [Link] general sense, the word
preliminary means preparation for the main matter, initial, introductory, preparatory. In a legal
sense, a preliminary decree is a decree where further proceedings have to take place before
the suit can be completely disposed off. It decides the rights of the parties in respect to all or
any of the matters of discussion but it does not completely dispose of the suit. In such a
decree the rights and liabilities of the parties are stated leaving the actual result or decision to
be worked out in future proceedings. A preliminary decree is passed in those cases where
the proceedings are to be carried out in two different stages. The first stage is when the rights
of the parties are adjudicated. And the second stage is when those rights are implemented or
executed.

 Final Decree: This completely disposes of the suit by conclusively determining the rights of
the parties. Using the partition suit example, the final decree would divide the property
according to the shares determined in the preliminary decree. In general sense, the word
"final means last, ultimate, conclusive or decisive. In legal sense, a final decree is a decree
which completely disposes of the suit and settles all the questions in discussion between the
parties and nothing is left further for deciding thereafter. It is only said to be final when such
adjudication completely disposes of the suit.

 Partly Preliminary and Partly Final Decree: In some cases, a decree may be partly
preliminary and partly final. For instance, in a mortgage suit, the court might pass a decree
for the sale of mortgaged property (preliminary) and simultaneously determine the amount
due to the mortgagee (final). A decree is said to be partly preliminary and partly final when
the court decides two questions by the same decree. For instance, if the court passes a
decree in favour of orne party along with a direction of inquiry for the other party, the former
part of the decree is final while the latter part is a preliminary decree for which further
proceedings have to take place. For example, in a suit of possession of a property with
company 'C', if the court passes a decree of possession of the property in favour of the
plaintiff and directs an enquiry into the company 'C' then the former part of the decree is final
decree while the latter part is the preliminary decree

The necessity of a Decree

The Code of Civil Procedure requires the passing of a decree in all the suits. A decree is based
upon judgement and it also follows a judgement which is the reason why it is an indispensable and
essential requisite. The decree is indispensable or an absolute requisite. It is an essential part of the
ultimate outcome of the suit. An appeal can be made against a decree and not against a judgement.
If the decree is absent an appeal cannot be 'put in motion'.

Contents of a Decree
A decree must include specific details to be valid:

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  Suit’s Number: Every suit is assigned a unique number, which must be mentioned in the
decree.
 Names, Description and Registered Addresses of the Parties: The decree must include
the names, proper descriptions and registered addresses of all parties involved in the suit.
 Particulars of the Parties’ Claims or Defences: It must detail the claims or defences
asserted by the parties in the suit.
 Relief Granted: The decree should specify the relief or remedy awarded to the aggrieved
party.
 Costs Incurred: It should outline the total costs incurred in the suit and how they are to be
apportioned among the parties.
 Date of Judgement: The decree must mention the date on which the judgement was
pronounced.
 Judge’s Signature: The judge’s signature is essential for the validity of the decree.

Examples and Analysis

In the earlier example of a property dispute, the decree would formally declare the decision made in
the judgement. It would list the parties involved, detail the claims about the property and specify the
relief granted, such as transferring the property title to one party. It would also outline the costs of
the suit and how they are to be borne by the parties. The decree would be dated and signed by the
judge.

Execution of decree
Decrees are subject to the same rules of execution. Once the decrees are carried out, the remedy is
sought after. Deeds must be carried out in order for the proceedings to proceed. The procedure must be
swift and efficient in order to enable the impacted party to receive the appropriate relief. It must also be
thoroughly executed. The Code of Civil Procedure’s Order XXI addresses the carrying out of decisions
and orders.

execution of decree meaning

 The CPC contains no definition for the word “execution.” The act of carrying out, upholding, or
giving effect to a court of justice’s order or verdict is referred to as “execution.”
 In simple terms, “execution” refers to the act of putting the court’s decree or judgment into effect
by requiring the judgment debtor to follow the directives in the decree or order and allowing the
decree holder to retrieve the item that was awarded to him by the decree.

what are the various modes of execution of decree under cpc?

A decree may be carried out in a number of ways, but the Court must adhere to the relevant guidelines
outlined in Order 21. Order XXI Rule 10 states that in order for the decree-holder to have it executed, he
must submit an application to the court. The various modes of execution of decree cpc are as follows:

Through Delivery of Property:

 Movable Property: In the event that the property is movable, the decree is carried out by taking
possession of it and giving it to the decree-holder or another individual he appoints. The
confiscated moveable property must be handed to the buyer if it is going to be sold.
 Immovable Property: Immovable property may be delivered to the individual to whom it has
been awarded or to that person’s representative when the decree calls for the delivery of such
property.

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Through Attachment and Sale of Property:
 On the decree-holder’s request, a decree may also be carried out by attachment and sale, the
only sale in which no property is attached.
 The code establishes the process for achieving attachment and acknowledges the decree-
holder’s authority to seize the judgment debtor’s property in an execution case.

Through Arrest and Detention:

 One way to carry out an order is by an arrest. Arrest and custody are covered under Section 55
of CPC.
 If the decree calls for payment of money, the judgment debtor may be placed in civil
imprisonment to carry out the terms of the ruling.
 According to Rule 38 of CPC, in order to arrest the judgment debtor, the officer designated for
execution must obtain a warrant.

By Appointment of a Receiver:
 The several clauses pertaining to the receiver’s appointment are contained in CPC Order XL.
 The Court has appointed the receiver, who is a neutral, unbiased third-party person.
 The Court is also able to decide how much the receiver will be paid for the services they
rendered. The receiver is required to:
 Oversee and safeguard the property
 Assume responsibility for the collection of rent and earnings from the property.
 Oversee the application and distribution of rent and profits.
 Be cautious when executing documents.
 The receiver may be granted further authority by the court at its discretion.

Through Partition:
 The decree in the property division litigation is covered under Order XX, Rule 18 of the Code of
Civil Procedure.
 When a court issues a judgment for the division of any kind of property, whether it be immovable
or mobile, and if the process proves onerous, the court may issue an interim decree that
precisely defines each property’s various rights.
 The Collector or any other gazetted person who reports to the Collector and who must be
selected by the Collector themselves may make the partition decree when it comes to the estate
assessed for the purpose of paying taxes to the Government.

Through Cross decrees & Cross-claims:

 The CPC’s Order XXI, Rule 18, lays forth the guidelines for execution in cases involving cross-
decrees. When petitions are filed with a court through separate suits, the court may execute both
concurrently in order to pay the two amounts of money that were transferred between the same
parties or individuals.
 Cross-claim scenarios are governed by the rules for execution outlined in Order XXI Rule 19.
When two distinct parties who owe each other money file an application with the court to execute
a decree, it’s known as a cross-claim.

Through Payment of Money:

The numerous ways to pay the money required by the decree are outlined in Order XXI Rule 1 of CPC.
In line with this regulation:

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  The money may be deposited into the court that has the authority to carry out the decree;
 It may be sent there by money order or bank deposit;
 It may also be paid to the decree holder outside of the court using a previously agreed-upon
method;
 The court may also specify other methods in the decree.
Therefore, the method used by the courts to execute a decree in the decree holder’s favour is called
execution. An adequate remedy must be given to the decree-holder in the event that the judgment
debtor fails to comply with the decree, as the mere passing of a decree is insufficient. Due to the
severity of these modes, which include detention and judgment, the debtor is left with little choice except
to comply with the decree’s demands and pay the stipulated amount

Differences Between Judgement and Decree

While judgements and decrees are interrelated, they have distinct characteristics and roles in the
judicial process and differ in the following way:

While judgements and decrees are interrelated, they have distinct characteristics and roles in the
judicial process and differ in the following way:
Aspect Judgement Decree

A detailed document based on the facts, A formal declaration based on the

Definition issues, evidence and legal arguments judgement, conclusively determining the
presented during the trial. rights of the parties.

Order of
Made prior to the decree. Always follows a judgement.
Issuance

Includes the suit’s number, parties’ details,

Includes a summary of pleadings, issues,
claims or defences, relief granted, costs
Contents findings, ratio decidendi and the relief
incurred, date of judgement and the judge’s
granted.
signature.

Section 2(9) of the Code of Civil

Legal Reference Section 2(2) of the Code of Civil Procedure, 1
Procedure, 1908.

Divided into three types: preliminary, final

Types Has no types.
and partly preliminary & partly final.

May result in a preliminary decree, final

Nature of May be preliminary, final or partly preliminary
decree or an order, but the judgement
Decision and partly final.
itself is always final.

After passing the decree, the suit stands

Leads to the final disposal of the suit after
Effect on Suit disposed of since the rights of the parties
the decree is drawn up.
are finally determined.

Provides detailed reasoning and findings Conclusively determines the rights of the
Purpose
of the court. parties and is enforceable.

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 Sets precedents for future cases and
Provides finality and enforceability to the
Significance ensures transparency in the judicial
court’s decision.
process.

Detailed explanation of the case, issues,

Formal declaration including necessary
Components evidence, legal reasoning and relief
details for enforcement of the decision.
granted.

Difference between decree Judgment and order

Here’s the table summarising key differences between order, decree and judgement:
Criteria Judgement Decree Order

Formal expression of
Formal expression
A statement given by the judge adjudication that
of a decision
Definition based on a decree or order conclusively determines
that is not a decree (
(Section 2(9) of CPC). rights
2(14) of CPC).
(Section 2(2) of CPC).

A concise statement of the

Adjudication, suit, Formal expression, n
case, points for determination,
determination of rights, decree, must be
Essentials the decision on points, reasons
conclusive, formal issued by a civil
for the decision, and relief
expression. court.
granted.

Preliminary, Final, Partly Final, Interlocutory,

Types No specific types of judgements. Preliminary and Final, Appealable, Non-
Deemed Decree. Appealable.

Only certain orders

Judgements themselves are not Appealable under normal
are appealable
Appealability appealable, but the decree/order circumstances, second
under Section 104
based on it may be. appeals may also lie.
and Order 43 Rule 1

May or may not be

Conclusive determination
Forms the basis for a decree or final, depending
Finality of rights; final except
order, not final on its own. on the nature of
when appealed.
the order.

Relation to Provides reasoning for the court’s Concludes the rights of Addresses procedur
Case decision. the parties in a civil suit. or substantive
issues, may or may
not conclude

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 rights.

Conclusion
Understanding the concepts of judgement and decree is essential for comprehending the judicial
process in civil cases. A judgement provides the detailed reasoning and findings of the court,
while a decree is the formal expression of the court’s decision that conclusively determines
the rights of the parties.
Both are integral to the judicial system, ensuring that justice is served and that the rights of the
parties are clearly defined and enforceable. As legal practitioners and scholars, it is important to
grasp these concepts to effectively navigate and apply the law in civil litigation.

Cost
Introduction
The Civil Procedure Code of India lays down the rules and regulations governing the procedures in
civil litigation. Among these rules, the provisions related to costs under Civil Procedure Code play
an important role in ensuring fair litigation practices. The CPC provides for four kinds of costs:
General costs (Section 35), Miscellaneous costs (Order 20A), Compensatory costs for false or
vexatious claims or defences (Section 35A) and Costs for causing delay (Section 35B).
General Costs under Civil Procedure Code: Section 35 of Civil Procedure Code
Section 35 of the CPC deals with general costs, which are awarded to litigants to cover the
expenses incurred during litigation. The primary objective of awarding costs under this section is to
ensure that the successful party is compensated for the legal expenses they have borne.

Costs
In the general sense, the term cost means to incur a charge or to require payment of a specified
price. It simply means to calculate or estimate a price. The term cost is defined in Section 35 of the
Code of Civil Procedure, 1908. The primary objective of ordering costs is to provide the litigant with
the expenses incurred by him during the litigation. The provision of providing costs is on the
discretion of the court that it may grant order for payment of costs to the winning party by the losing
party subjected to pay for the expenses incurred during the litigation period or while drafting legal
notices and contracts. This is a kind of remedy and it shall not be treated as a reward for the
winning party and punishment for the losing party

Granting of costs is at the discretion of the Court and if the court refuses to grant cost then it should
give reasons for doing so in writing. The discretion is based upon facts and circumstances of the
case and not by chance.

Kinds of Costs
The Code of Civil Procedure provides for the following kinds of costs
General costs
The term general costs are defined in Section 35 of Code of Civil Procedure, 1908. General costs
are the cost which is incurred by the litigants and depends upon the Court's discretion. The general
rule is that the losing party pays the winning party costs granted by the court. It is the amount which
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is not treated as a reward for the winning party and a punishment for the losing party but as a
remedy. The judge can even refuse to grant costs but for that, a reason has to be stated in writing.

Miscellaneous costs
The term miscellaneous in the literal sense is used as something which is diverse in its
characteristics and cannot be placed in any specific category. Miscellaneous costs are defined in
Order XX A of the Code of Civil Procedure, 1908. These costs are also known as Specific Costs.
They are granted under special circumstances as mentioned in Rule1 of the Code of Civil
Procedure, 1908:
 Expenditure on notices required to be issued under the law by parties.
 Expenditure on rnotices not required to be issued under the law by parties
 Expenditure incurred on typing, writing, printing, etc. on the pleadings.
 Charges paid by parties for inspection of documents.
 Expenditures on witnesses even though not summoned to the court.
 In case of appeals, expenses incurred by parties for obtaining any copies of the pleadings,
judgement, decree, etc.

Compensatory costs
The term compensatory can be generally defined as to make up for something, or to do something
to correct a previous act. It means. providing compensation to the aggrieved party by the way of
damages or rewards or as the Court deems fit. Compensatory costs are defined in Section 354 of
the Code of Civil Procedure, 1908. Compensatory costs are granted in the cases where the claims
of the other party are faise or vexatious. Such costs are granted under two conditions, namely,
firstly, the claim must be faise or vexatious. Secondly, objections must be made by the other party
that the party making the claim or defence had knowledge of the fact that such claim was false or
vexatious.

Costs for causing delay

These are the costs which the parties are liable to pay in case of default made on their part such as
appearing late in the Court, not submitting the required documents on the specified time, not paying
the costs on time for which further fine has been imposed. These are the costs which are paid due
to carelessness on the part of the parties. Costs for causing delay are defined in Section 358 of the
Code of Civil Procedure, 1908. This section was introduced by the Amendment Act, 1976. These
are costs which are imposed for causing the delay It states that where al party did not take a step
which it should have under the code or obtained an adjournment as regards the same, he will have
to pay such costs to the other party so as to reimburse him for attending Court on the designated
date. Unless such costs are paid, the plaintiff shall not be allowed to proceed further in his suit, if
she should have paid the costs and defendant shall not be allowed to proceed with the defence if he
was liable to pay such costs. If however, the party is unable to pay the costs due to circumstances
beyond his control, the court may extend the time.

Principles Governing General Costs Civil Procedure Code

1. Discretion of the Court: The award of general costs is at the discretion of the court.
However, this discretion must be exercised judiciously, based on sound legal principles,
rather than capriciously or arbitrarily.

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 2. Costs Follow the Event: Typically, costs should follow the event, meaning that the
successful party is entitled to costs. This principle ensures that the winning party is not
financially burdened by the litigation. However, the court may deviate from this rule if there
are valid reasons.
3. Recording Reasons: If the court decides that costs should not follow the event, it must
record the reasons for such a decision as per sub-section (2) of Section 35. This provision
ensures transparency and accountability in the awarding of costs.

Miscellaneous Costs under Civil Procedure Code: Order 20A

Order 20A of the CPC specifically addresses the power of the court to award costs for certain
expenses incurred during litigation. These expenses include:
 Giving notices
 Typing charges
 Inspection of records
 Producing witnesses
 Obtaining copies
The inclusion of miscellaneous costs under Order 20A aims to cover specific, often overlooked,
expenses that parties incur in the process of litigation. By doing so, the CPC ensures that parties
are adequately compensated for all legitimate expenses.
Compensatory Costs under Civil Procedure Code: Section 35A

Section 35A provides for compensatory costs, which serve as an exception to the general rule of
costs under Section 35. This section is designed to address situations where Section 35 does not
offer sufficient compensation, particularly in cases involving false or vexatious claims or defences.

Conditions for Awarding Compensatory Costs

For Section 35A to apply, the following conditions must be met:
1. False or Vexatious Claim/Defense: The claim or defence must be false or vexatious,
brought with malicious intent.
2. Objection by the Other Party: The other party must have raised an objection that the claim
or defence was false or vexatious, to the knowledge of the party raising it.
3. Disallowed, Withdrawn or Abandoned Claim: The claim must have been disallowed,
withdrawn or abandoned, either in whole or in part.
The maximum amount that can be awarded under Section 35A is Rs. 3,000. It is important to note
that this section applies only to suits, not to appeals or revisions. This provision empowers the court
to impose compensatory costs on parties who misuse the legal process for vexatious purposes.

Costs for Causing Delay: Section 35B

Section 35B addresses costs for causing delays during litigation. This section empowers the court
to impose costs on parties who cause unnecessary delays at any stage of the litigation process,
regardless of the ultimate outcome of the case.

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Grounds for Awarding Costs for Delay
Costs for causing delay may be awarded under the following circumstances:
1. Failure to Take Required Steps: If a party fails to take a step required by or under the code
on a specified date.
2. Obtaining Adjournments: If a party obtains an adjournment for taking such a step or for
producing evidence or on any other ground.
In such cases, the court may order the party responsible for the delay to pay costs to the other
party. This provision ensures that the litigation process is not unduly prolonged and that parties act
diligently and in good faith.

Analysis and Implications of Costs under Civil Procedure Code

The provisions related to costs under the CPC are important for several reasons. Firstly, they act as
a deterrent against frivolous and vexatious litigation. By imposing financial consequences on parties
who engage in such practices, the CPC discourages misuse of the legal system. Secondly, the
provisions ensure that the successful party is not unduly burdened by the costs of litigation. This
promotes fairness and equity in the legal process.
The discretion granted to the courts in awarding costs ensures that each case is assessed on its
merits. However, the requirement for courts to record reasons for deviating from the principle that
costs follow the event adds a layer of accountability. This transparency helps maintain trust in the
judicial process.

The inclusion of miscellaneous costs under Order 20A ensures that parties are compensated for all
legitimate expenses, not just the major ones. This comprehensive approach to awarding costs
reflects a nuanced understanding of the various expenses involved in litigation.

Section 35A’s provision for compensatory costs addresses a significant gap by providing a remedy
in cases where the general rule does not offer sufficient compensation. This section is particularly
important in addressing malicious litigation practices.
Finally, Section 35B’s provision for costs for causing delay underscores the importance of timely
and efficient litigation. By imposing costs on parties who cause unnecessary delays, the CPC
promotes the swift resolution of cases, benefiting both the parties involved and the judicial system
as a whole.

Conclusion
The provisions related to costs under the CPC play a vital role in the Indian legal system. They
ensure that litigation is conducted fairly, that parties are compensated for their legitimate expenses
and that the legal process is not misused. By providing mechanisms to address false or vexatious
claims, compensate for specific litigation expenses and penalise delays, the CPC fosters a just and
efficient legal system.

2.8 Withdrawal and adjustment of suits (Order XXIII)

Introduction to Withdrawal of a Suit
When a plaintiff files a suit, they initiate a legal process to seek a remedy from the court. However,
circumstances may arise where the plaintiff no longer wishes to pursue the case, either in its
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entirety or partially. The CPC provides for this eventuality under Order XXIII, which deals with the
“Withdrawal and Adjustment of Suits.” The rules under this order outline the procedures,
requirements, and consequences of withdrawing a suit.

Legal Framework: Order XXIII of CPC

Order XXIII Rule 1: General Rule for Withdrawal

Order XXIII Rule 1 of the CPC governs the withdrawal of a suit by a plaintiff. It is divided into several
sub-rules, each addressing different scenarios in which a plaintiff may seek to withdraw a suit or a
part of it.
1. Right to Withdraw Without Court’s Permission: According to Rule 1(1), a plaintiff may
withdraw a suit or abandon a part of their claim at any point after the institution of the suit.
This rule gives the plaintiff the autonomy to decide whether to continue with the litigation or
withdraw, as long as the withdrawal does not prejudice the rights of others involved in the
suit.
2. Court’s Permission for Fresh Suit: Under Rule 1(3), if the plaintiff intends to withdraw a
suit but seeks to reserve the right to file a fresh suit on the same subject matter, they must
seek permission from the court. This permission is granted only in specific cases, such as
when there are formal defects in the original suit or there are valid reasons to refile the case.
If such permission is not obtained, the plaintiff will be precluded from instituting a new suit on
the same matter.
3. Liability for Costs: When a plaintiff withdraws a suit under Rule 1(4) without permission
from the court, they may still be liable for the costs incurred by the defendant. The court has
the discretion to impose costs to compensate the defendant for their legal expenses.

Withdrawal in Cases Involving Multiple Plaintiffs

When there are multiple plaintiffs, the withdrawal of one plaintiff can significantly affect the rights
and interests of the others. Order XXIII Rule 1(5) specifically addresses this scenario, requiring the
consent of all co-plaintiffs before one plaintiff can withdraw from the suit. The rule is designed to
protect the collective interest of all parties involved in the litigation.

In Tukaram Mahadu Tandel v. Ramchandra Mahadu Tandel, the Bombay High Court held that
the withdrawal of one plaintiff without the consent of the other plaintiffs can lead to complications
and potential prejudice to the rights of co-plaintiffs. This provision ensures that no plaintiff can
unilaterally withdraw from a suit in a way that could harm the collective interest of the remaining
plaintiffs.
Consequences of Withdrawal Without Consent

Withdrawal from a suit without proper consent or permission from the court can lead to
several consequences:
Suit Abatement: If a sole plaintiff withdraws from a suit or if all plaintiffs withdraw, the suit abates,
meaning it is terminated and no longer continues in court. In cases where one of multiple plaintiffs
withdraws without consent, the remaining plaintiffs may continue with the suit, provided they apply
to the court to be substituted as the sole plaintiffs.

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Costs and Penalties: As mentioned earlier, Rule 1(4) allows the court to impose costs on the
withdrawing plaintiff. This is to ensure that the defendant, who may have incurred legal expenses in
defending the suit, is compensated for their time and resources.
Preclusion from Filing Fresh Suits: A plaintiff who withdraws a suit without seeking permission
from the court is barred from filing a new suit on the same cause of action. This rule, under Rule
1(4), ensures that plaintiffs cannot abuse the judicial process by withdrawing suits and refiling them
repeatedly, leading to harassment of defendants.

Role of the Court in Granting Permission for Fresh Suits

The court plays a crucial role in regulating the withdrawal of suits, especially when the plaintiff seeks
to file a fresh suit on the same subject matter. Rule 1(3) grants the court the discretion to allow a
plaintiff to withdraw and refile a suit if there are sufficient grounds, such as:

Objective and Importance of Order 23

The primary aim of Order 23 is to encourage parties to settle disputes through compromise instead
of prolonged litigation. The provisions help in:
 Reducing Court Burden: By allowing settlements and withdrawals, courts can focus on
unresolved cases that need judicial attention.
 Saving Time and Money: Amicable settlements prevent the need for long, drawn-out court
trials, benefiting both the parties and the judiciary.
 Finality of Decisions: Once a compromise is recorded and a decree is passed, the parties
are bound by it, ensuring finality and certainty.

Rule-by-Rule Breakdown
Rule 1: Withdrawal and Abandonment of Suit
Rule 1 of Order 23 deals with the withdrawal or abandonment of suits or claims. A party may
choose to withdraw the suit entirely or abandon part of the claim. However, there are specific
conditions and requirements involved.
 General Withdrawal: A plaintiff can withdraw a suit or any part of it by filing an application
before the court.
 Leave of Court for Minors: If a minor is involved, the application for withdrawal must be
accompanied by the affidavit of the next friend, and leave of the court is required.
 Conditions for Withdrawal: The court may permit the withdrawal of a suit if it believes:
o The suit is likely to fail due to a formal defect.
o There are sufficient grounds to institute a fresh suit concerning the same subject
matter or claim.
 Consequences of Withdrawal: If the plaintiff withdraws the suit or claim without obtaining
permission from the court, they may be liable for the costs awarded by the court and are
precluded from instituting a fresh suit on the same subject matter.
Rule 1A: Transposition of Defendants as Plaintiffs
This rule allows for the transposition of a defendant as a plaintiff in certain circumstances. This is
relevant when a suit is withdrawn by the original plaintiff, and a defendant seeks to be substituted as
the plaintiff to continue the case. The court must consider whether the defendant has a substantial
question to be decided against the other defendants.

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Rule 2: Limitation Law Not Affected
Rule 2 of Order 23 clarifies that the withdrawal of a suit and the institution of a fresh suit following
withdrawal will be subject to the same limitation period as if the original suit had not been filed.
This ensures that the limitation law is not circumvented by withdrawing and re-filing a suit.

Rule 3: Compromise of Suit

One of the most significant provisions under Order 23 is Rule 3, which allows a suit to be settled
through a compromise between the parties. The compromise can be partial or complete and must
be lawful. The court records the agreement, and a decree is passed accordingly.
 Procedure for Recording Compromise:
o The compromise must be in writing, signed by the parties involved, and must be
proven to the court’s satisfaction.
o If the defendant satisfies the plaintiff in full or part of the subject matter of the suit, this
can also be treated as a compromise.
 Court’s Role:
o If one party denies the compromise or claims that no agreement was reached, the
court decides the matter on the spot.
o The court will not grant adjournments for deciding the issue unless it records specific
reasons for doing so.
 Decree on Compromise:
o Once the compromise is recorded, the court passes a decree based on the terms of
the compromise, and this decree has the same legal effect as any other decree
passed by the court.
o The decree applies only to the parties involved in the compromise, even if the subject
matter of the compromise does not align with the subject matter of the original suit.
Rule 3A: Bar on Further Suit
Rule 3A imposes a bar to fresh suits in cases where a compromise decree has been passed.
Once a suit is settled through a compromise and a decree is passed, no subsequent suit can be
filed to challenge the compromise decree. The only remedy available to the parties is to file an
application in the same court that passed the decree if they want to challenge it

This rule prevents the parties from reopening settled matters in another court, thereby ensuring
finality and preventing unnecessary litigation.

Rule 3B: Representative Suits

Representative suits involve one or more persons suing on behalf of a larger group of people, such
as in class action cases. Rule 3B provides that no compromise can be entered in a representative
suit without the leave of the court. This rule ensures that the court carefully scrutinises any
compromise in cases where the interests of numerous individuals may be affected.
 Notice to Interested Parties: Before granting leave for a compromise in a representative
suit, the court must give notice to the persons who may be affected by the compromise. This
ensures that everyone with an interest in the matter is given an opportunity to be heard.
 Void Compromise: If a compromise is made without obtaining the court’s leave or without
giving notice to the affected parties, the compromise will be considered void.

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Rule 4: Proceedings in Execution
Rule 4 specifies that the provisions of Order 23 do not apply to proceedings in the execution of a
decree. This means that if a decree has been passed and the case is in the execution stage, the
provisions of Order 23 (such as withdrawal, compromise, etc.) will not apply.

Judicial Interpretation and Case Laws

Several landmark decisions have shaped the interpretation and application of Order 23 CPC.
Baidyanath Nandi v. Shyama Sundar Nandi (1943)
The Calcutta High Court held that when one of several plaintiffs wishes to withdraw from a suit
without reserving liberty to institute a fresh suit, the consent of the other plaintiffs is not necessary.
Triloki Nath Singh v. Anirudh Singh (2020)
The Supreme Court held that a suit for declaration challenging the compromise recorded in a
previous suit could not be maintained due to Rule 3A. The court emphasised the finality of a
compromise decree and its implications on future litigation.
Kapoori Bai & Ors. v. Neelesh & Ors. (2023)
The Madhya Pradesh High Court ruled that if one of several plaintiffs has an independent right to
relief, which is severable from the others, the court has the discretion to grant relief to that plaintiff
even if the other plaintiffs do not agree to withdraw or abandon their claims.

Conclusion
Order 23 of the CPC provides essential tools for parties seeking to resolve their disputes amicably,
either by withdrawing a suit, abandoning part of a claim, or settling through compromise. It is a
significant provision that reduces the time and financial burden of prolonged litigation, offering a
practical solution for both parties and the courts.

2.9 suits - Orders XXVII to XXXIV

Special Suits under CPC (Orders XXVII – XXXIV)
The Civil Procedure Code (CPC) provides general provisions for civil suits, but some categories of
suits require special procedure. These are provided under Orders XXVII to XXXIV.

Order XXVII – Suits by or against the Government or Public Officers

 Governs suits where Government (Union/State) or a public officer is a party.
 Key points:
o Notice under Section 80 CPC must be served before filing suit against the
Government or public officer.
o The Government pleader represents the Government.
o No personal appearance required for Government unless directed.

Order XXVIII – Suits by or against Military or Naval Men or Airmen

 Applies when a person serving in the armed forces is a party.
 Key points:
o Such persons can sue/defend through a representative or "next friend".
o Special protection given since they are often away on duty.

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Order XXIX – Suits by or against Corporations
 Governs suits where the plaintiff/defendant is a corporation (company, statutory body, etc.).
 Key points:
o A corporation may sue/defend in its name.
o Signed pleadings must be by a director, secretary, or other authorized officer.

Order XXX – Suits by or against Firms and Persons Carrying on Business in Names Other
than Their Own
 Concerns partnership firms.
 Key points:
o Firms can sue or be sued in the firm name.
o A person carrying business under a trade name can sue/be sued in that name.
o The Court may disclose the names of actual partners if required.

Order XXXI – Suits by or against Trustees, Executors and Administrators

 Applies when the party is a trustee, executor, or administrator of an estate.
 Key points:
o One or more trustees/executors/administrators can represent the whole group.
o They are accountable to the beneficiaries.

Order XXXII – Suits by or against Minors and Persons of Unsound Mind

 Applies when a party is a minor (below 18 years) or of unsound mind.
 Key points:
o Such persons must sue/defend through a next friend (if plaintiff) or a guardian ad
litem (if defendant).
o Compromise on their behalf requires court approval.
o Protection of their rights is the main purpose.

Order XXXIII – Suits by Indigent Persons (formerly pauper suits)

 Applies when a person is unable to pay the court fee.
 Key points:
o Application must show lack of sufficient means.
o Court inquires into financial status.
o If permitted, suit proceeds without payment of court fee.
o If successful, court fee is recovered from the decree amount.

Order XXXIV – Suits relating to Mortgages of Immovable Property

 Applies specifically to mortgage suits.
 Key points:
o Deals with redemption, foreclosure, and sale of mortgaged property.
o Special procedure for preliminary and final decrees in mortgage suits.
o Protects both mortgagee (lender) and mortgagor (borrower).

Summary suit

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Introduction
In the Indian legal system, where judicial delays are a common concern, summary suits offer a
quicker resolution for certain types of civil disputes. Summary suits are specifically designed to
provide speedy justice, particularly in cases where the defendant’s defence is either non-existent or
raises no genuine issue. This legal mechanism is governed by Order XXXVII of the Code of Civil
Procedure (CPC), which aims to expedite the judicial process while still ensuring fairness to the
defendant.
In this article, we will examine the concept, scope, procedure, differences from ordinary suits, and
relevant case law that shapes the application of summary suits in India.

What is a Summary Suit?

A summary suit is a special type of legal proceeding under the Code of Civil Procedure (CPC)
designed to provide a swift remedy in civil disputes that involve a clear-cut claim. These suits
typically involve claims based on negotiable instruments (such as cheques, bills of exchange or
promissory notes) or cases where the plaintiff seeks to recover a liquidated sum of money arising
from an agreement or contract.
The primary goal of summary suits is to prevent unnecessary delays in resolving disputes where
there is little to no dispute over the facts of the case. This mechanism is especially useful in
commercial transactions where speed is often essential.

The Objective of Summary Suits

Preventing Obstruction by Defendants
The underlying objective of the summary procedure is to stop unreasonable obstruction by the
defendant who has no valid defence. In ordinary civil suits, defendants have an automatic right to
defend the suit and engage in lengthy trials. However, in a summary suit, a defendant can only
defend the suit after obtaining leave (permission) from the court, which is granted only if the
defendant can show a real and plausible dispute over the claim.

Expeditious Disposal of Cases

The summary suit procedure ensures that cases involving negotiable instruments and certain debts
are disposed of quickly, saving both time and money for the parties involved. This is beneficial not
only for the litigants but also for the judicial system, as it reduces the backlog of cases and allows
courts to focus on more complex matters.

Applicability of Summary Suits

Types of Cases Covered
Summary suits are typically filed in the following types of cases:
 Suits based on negotiable instruments: These include bills of exchange, promissory
notes, and cheques.
 Debt recovery cases: When the plaintiff seeks to recover a debt or liquidated demand in
money, with or without interest, arising from:
o A written contract,
o An enactment (for fixed sums of money or non-penalty debts),
o A guarantee, specifically when the claim is for a debt or liquidated demand.
These suits can be filed in cases where there is no genuine dispute over the existence of the debt
or the agreement, allowing the matter to be resolved without a full trial.
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Jurisdiction

Summary suits can be filed in the court that has territorial jurisdiction over the matter. The suit can
be filed in:
 Courts of Small Causes,
 City Civil Courts,
 High Courts, and
 Any other court as notified by the High Court.
The High Court has the authority to modify the scope of suits that can be filed under Order XXXVII.

Key Differences Between Summary Suits and Ordinary Suits

Right to Defence
One of the most significant differences between a summary suit and an ordinary suit is the right to
defend
 In an ordinary suit, the defendant has an automatic right to defend the case. The defendant
can raise a defence and present evidence to challenge the plaintiff’s claim.
 In a summary suit, the defendant does not have an automatic right to defend. The
defendant must apply to the court for leave (permission) to defend the suit. The leave is
granted only if the defendant can establish that there is a triable issue (a genuine dispute)
regarding the claim.

Procedure
 In an ordinary suit, the process is lengthy, with witness examination, cross-examination, and
production of evidence. A full trial takes place before the court decides the case.
 In a summary suit, the process is streamlined. The court may pass a judgement without a
full trial if the defendant does not raise any significant objections or disputes.

Timeframe
Because the procedure is simplified, summary suits are typically resolved faster than ordinary suits.
While an ordinary suit can take months or even years to conclude, a summary suit is designed to be
concluded in a matter of weeks, depending on the complexity of the case.

Evidence
 In an ordinary suit, the court considers a wide range of evidence, including witness
testimony and expert reports.
 In a summary suit, the court relies primarily on the written evidence, such as the negotiable
instrument or the agreement, which supports the plaintiff’s claim. If the defendant raises a
genuine defence, the court will allow them to present additional evidence.

Procedure for Filing a Summary Suit

The procedure for filing and defending a summary suit is laid down in Order XXXVII of the CPC. It is
a simplified and faster process, as outlined below:
Initiating the Suit
The plaintiff initiates a summary suit by filing a plaint in the court with jurisdiction. Once the court
accepts the plaint, it issues a summons to the defendant, informing them of the suit.

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Summons for Judgement
After the summons is issued, the plaintiff serves a summons for judgement to the defendant. This
is a notice asking the defendant to either:
 Accept the plaintiff’s claim and settle the matter,
 Or apply for leave to defend within the prescribed period (usually 10 days).

Leave to Defend
If the defendant wishes to defend the suit, they must apply for leave to defend. The defendant must
file an affidavit explaining the facts and reasons for contesting the claim. The court examines
whether the defendant’s affidavit raises a triable issue. If the court believes the defendant’s defence
is valid, it grants leave to defend. If the defence is found to be frivolous or illusory, the court may
reject the application and pass a decree in favour of the plaintiff.

Judgement and Decree

If the defendant does not apply for leave to defend, or if their application is rejected, the plaintiff is
entitled to a decree for the amount claimed. This decree may include interest and costs.

Limitation Period for Filing a Summary Suit

The limitation period for filing a summary suit is governed by the Indian Limitation Act, 1963.
According to the Act, a summary suit must be filed within three years from the date the cause of
action arises.
This time limit is similar to that for ordinary suits, ensuring that claims are not delayed for an
unreasonable period.

Important Case Law and Judicial Pronouncements

Over the years, the Indian judiciary has provided several important rulings that shape the practice
and application of summary suits. Here are some key cases:

Southern Sales and Services v. Sauernilch Design and Handles Gmbh (2008)
This case clarified that if the defendant admits part of the amount claimed, the court may require the
defendant to deposit the admitted sum as a condition for granting leave to defend. The ruling
emphasised that this requirement safeguards the plaintiff’s interests while still allowing the
defendant an opportunity to present their defence.

Raj Duggal v. Ramesh Kumar (1990)

In this case, the Supreme Court held that the test for granting leave to defend is whether the
defendant raises a real, honest, and bona fide dispute. The ruling reinforced the principle that leave
to defend should not be refused unless the defendant’s defence is clearly frivolous or lacks
substance.

Wada Arun Asbestors (P.) Ltd. v. Gujarat Water Supply and Sewerage Board (2008)
The court held that the trial court could exercise its discretion to set aside a decree and grant leave
to defend in special circumstances. This case highlighted the flexibility courts have in dealing with
summary suits, ensuring fairness while adhering to the expedited nature of the process.

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M/s Mechalec Engineers v. M/s Basic Equipment Corp. (1976)
In this landmark case, the Supreme Court clarified that summary suits cannot be filed when the
dispute is not clear-cut or when a defence raises a significant factual or legal issue. The ruling
underscored the importance of allowing defendants a fair chance to present genuine defences.

Special Provisions and Reliefs Under Order XXXVII

Order XXXVII also allows the court to set aside an ex parte decree under Rule 4. If a defendant
fails to appear in response to a summary suit or does not file for leave to defend, the court may
pass an ex parte decree. However, under special circumstances, the defendant may apply to set
aside the decree, and if the court finds sufficient cause, it may allow the defendant to appear and
defend the suit.
This provision ensures that no party is unjustly deprived of a hearing due to technicalities or
unforeseen circumstances.

Conclusion
Summary suits under Order XXXVII of the CPC provide an essential mechanism for the swift
resolution of claims involving negotiable instruments and liquidated debts. The streamlined
procedure is particularly beneficial for commercial transactions and other cases where a quick
resolution is necessary.

MODULE 3:
Execution and other procedures (Orders XXI
3.1 Meaning of execution
Introduction
 Order XXI the Code of Civil Procedure, 1908 (CPC) lays down the process for
the application for the execution of Decree & Orders.
 Execution is the final stage in civil proceedings where the decree holder seeks to enforce the
rights granted by a court decree.
 Rules 10 to 23 specifically deal with applications for execution.
 These rules establish the procedural framework for initiating and conducting execution
proceedings.

Meaning, Nature and Scope

The term "execution is not defined in the CPC. The term "execution" means implementing enforcing
or giving effect to an order or a judgment passed by the court of justice, in simple words "execution"
means the process of enforcing or giving effect to the decree or judgment of the court, by
compelling the judgment debtor to carry out the mandate of the decree or order and enable the
decree-holder to recover the thing granted to him by judgment.

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Illustration:
X files a suit against Y for Rs 20,000 and obtains a decree against him. Here X would be called the
decree-holder, Y is the judgment-debtor, and the amount of Rs 20,000 is the judgment debt. Y is
bound to pay Rs 20,000 to X, as the decree is passed against him. Suppose Y refuses to pay the
decretal amount to X, X can recover the said amount by execution through the judicial process. The
principles governing the execution of a decree or order are given in Section 36 to Section 74
(substaritive law) and Order 21 of the code which provides for procedural law.

Execution proceedings under CrPC

In Ghan Shyam Das v. Anant Kumar Sinha, the Supreme Court dealt with the provisions of the code
relating to the execution of orders and decree and stated that the Code contains elaborate
provisions which deal with all questions regarding executability of a decree in all aspects.
The Court further observed that numerous provisions of Order 21 take care of various situations
providing effective remedies to judgment-debtors, decree-holders and claimant objectors. In the
cases, where provisions are not capable of giving relief inadequate measures and appropriate time,
to an aggrieved party, then filing a regular suit in the civil court is the solution.
The Court further explained that the judicial quality of the remedy under Civil Procedure Code is
considered to be superior as compared to other statutes therefore, the judges are expected to do
better as they are entrusted with the administration of justice.

Choice of the mode of execution

There are various modes of execution that is acceptable according to Section 51 of the Code of
Criminal Procedure. According to this section, the various modes of execution of a decree are
 Delivery of any property which is specifically mentioned in the decree,
 Attachment and sale of property,
 Sale without an attachment of property,
 The arrest of the judgment deb tor,
 Detention of the judgment deb tor,
 Appointment of a receiver

Section 47 of the Code of Civil Procedure provides certain questions to be determined by the Court
before executing the decree The Court has to determine all questions arising between the parties to
the suit, like
 Execution of decree
 The satisfaction of decree,
 Discharge of the decree,

 The Court can also determine whether the person is representative of a party or not
The application of execution has to be filed by the decree-holder and the application can either be
an oral application or written application.

3.2 Modes of executing decrees

There are various ways to execute a decree, the Court has to follow the appropriate rules provided
in Order 21 while executing a decree According to Order 30X1 Rule 10, an application has to be
filed in the Court by the decree holder if he desires to execute it

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Delivery of property
Delivery of property is one of the most famous modes of executing a treaty. According to Order XXI
Rule 79, it is said that when the property that is sold is a movable property of which actual seizure
has been made, it shall be delivered to the purchaser. Rule 35 of the Order XXI discusses the rules
regarding the decree of immovable property According to this rule,
 When the decree is for the delivery of immovable property, the property can be delivered to
the person to whom it has been adjudged or to the representative of that person,
 This delivery has to be made after removing any person bound by the decree who refuses to
vacate the property,
 When the decree is for the joint possession of the immovable property, the possession shall
be delivered after affixing the copy of the warrant in a place that is visible:
 When the person in possession is not providing free access to the property, then the Court
can remove or open any lock or bolt or break open any door or do any other act necessary
for putting the decree holder in possession after giving proper warning to the women in that
property

Attachment and sale of property

Section 50 of the Code of Civil Procedure provides the list of properties which are liable to
attachment and sale in execution of the decree. The list which is liable to be attached for
enforcement of decree according to this Section is
 Land.
 Houses or other buildings,
 Goods and Money,
 Banknotes and cheques,
 Bill of exchanges and promissory notes,
 Hundis,
 Government Securities, bonds and other secunties for money;
 Debts:
 Shares in the corporation,
 All other saleable property that belongs to the judgment-debtor which can be movable or
immovable

Section 61 of the Code of Civil Procedure provides a partial exemption. of agricultural produce.
Order XXL, Rule 3 of the Code of Civil Procedure provides that if the immovable property is located
in more than the local limits of the jurisdiction of one or more courts, then one of the Court can sell
and attach the property. According to Order XXI, Rule 13, there has to be certain information in the
application for attachment of immovable property. According to Order XXL, Rule 31, the decree for
the specific movable property can be executed by
 Seizure of the property if it is practicable,
 Delivery of the property to the person whom it has been adjudged,
 The detention of judgment debtor in the civil prison

Arrest and detention

Section 55 of the Code of Civil Procedure dea's with various rules regarding the arrest and
detention. According to this Section,

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  The judgment debtor can be arrested at any time of the day and can be brought before the
Court
 The detention of the Judgment debtor should be in civil prison
 No officer can enter the dwelling house after sunset and before sunrise for making an arrest
 The officer should release the judgment debtor once the amount is paid

Rule 17 of the Order XXI in the Code of Civil Procedure provides discretionary power to the
judgment debtor to show cause against detention in prison. According to this rule
 Where the application is made for the execution of the decree for the payment of money by
the arrest and detention of a judgment-debtor in the civil prison, then the Court provides an
opportunity to the judgment debtor to show cause why he should not be sent to the avil
prison
 The Court provides notice to the judgment debtor to appear before the court on a specified
date and provide show cause
 The Court will also not provide the notice in certain situations, for example, if the court feels it
would delay the process of execution or the judgment debtor might abscond within that time

Appointment of receiver
Order XL of the Code of Civil Procedures contains various provisions relating to the appointment of
a receiver The Court will also fix appropriate remuneration for the services provided by the receiver.
The Court can appoint an impartial person known as a receiver before or after the decree for
 Management and protection of the property,
 The collection of the rents and profits,
 The application and disposal of rents and profits
 The execution of documents,
 The Court also provides other powers than the above-mentioned power if it thinks fit.
There are various duties of a receiver that is provided in this Order like:
 Furnishing any security asked by the Court
 Submission of accounts at periods that he is appointed and in such form as the Court directs,
 Being responsible for any loss that has occurred to the property by the wilful default or gross
negligence of the receiver,
 Paying the amount due to him as the Court directs

The Court can also sometimes attach and sell the property of the receiver in order to recover the
loss accurred because of him and can give the remaining amount to the receiver after
compensating the loss The Collector can also be appointed as a receiver when the property is land
that is paying revenue to the Government or the land in which the revenue has been assigned or
redeemed, the Court can appoint a Collector as the receiver with their consent

Partition
Rule 18 of the Order XX of the Code of Civil Procedure deals with the decree in the suit for partition
of property. When the Court passes the decree for partition of any movable or immovable property
and if there is any difficulty in partition the Court can pass a preliminary decree which clearly
demarcates the different rights of the property When the decree of partition relates to the estate
assessed to the payment of revenue to the Government, the partition can be made by the Collector

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or any other gazetted officer who is subordinate to the Collector and the gazetted officer has to be
appointed by the Collector themselves.

Cross-decrees and cross-claims

Rule 18 of the Order XXI provides rules regarding the execution in cases of cross-decrees. The
application of cross decrees can be executed by the Court at the same time when the applications
are made to a Court in soparate suits for the payment of two sums of money passed between the
same parties in various situations, like, if the two sums are equal, then the satisfaction shall be
entered upon both decrees. There are also situations if the two sums are unequal then it can be
executed only by the holder of the decree for the larger sum and for the amount which remains after
deducting the smaller sum. This cannot be applied when the decree holder in one of the suits is the
judgment debtor in the other and each party files the same character in both the suits For example,
if A holds a decree against 8 for Rs 1,000 8 holds a decree against A for the payment of Rs. 1,000 in
that case then the decree can be executed at the same time and can be satisfied as the amount is
equal

Rule 19 of the Order XXI provides rules regarding the execution in cases of cross-claims. It is
considered as a cross-claim when the application is made to a Court for the execution of a decree
under which two parties. are entitled to recover sums of money from each other. There can be
satisfied when the amount is equal or if the amount is unequal execution may be only carried out
with the person entitled to the higher claim.

Payment of money
Order XXI Rule 1 provides the various methods of paying the money under the decree. According to
this rule
 The money can be paid by deposit into the Court who is competent to execute the decree,
 The money can be sent to the Court by money order or by bank deposit,
 The money can also be paid outside the Court to the decree-holder by the method decided
before in writing
 The Court can also direct other methods in the decree

If the money has been paid by postal money order or through a bank, there are various details that
have to be mentioned like the number of the original suits, the details of the parties, their name, how
the money remitted is to be adjusted and name and address of the payer Order XXI Rule 2 provides
various rules relating to decree-holder payment out of Court The Judgment-debtor has to inform the
Court about any payments that are made outside the Court Rule 30 provides that the decree for
payment of money can be executed by the detention of judgment debtor in prison or by attachment
and sale of his property Rule 32 of the Order XXI provides ways to enforce the decree for specific
performance of a contract The decree for specific performance of a contract if wilfully disobeyed by
any parties can be enforced by the detention of judgment debtor in the civil prison, or by the
attachment of property of the judgment debtor, or by both methods. The same procedure has to be
followed for the cross-decrees and cross-claims in the mortgage suits.

Injunction
Rule 32 of the Order XXI provides ways to enforce the decree for an injunction. The decree can be
executed by the detention of judgment holders in the civil prison or by attachment of property,

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sometimes both of the processes are carried out to enforce the decree for an injunction This
procedure has to be followed if the person willfully disobeys the dectee

Restitution of conjugal rights

Rule 32 of the Order XXI provides ways to enforce the decree for restitution of conjugal rights. The
decree for restitution of conjugal rights if wilfully disobeyed by any parties can be enforced by
attachment of the property.

Rule 33 of the Order XXI deals with the execution of conjugal rights against the husband and
according to this rule, the judgment deb tor has to make periodical payments to the decree-holder if
the decree is not obeyed within a specified time The Court can modify the rules regarding the
periodic payments from time to time and in certain situations, it can also suspend the payment. Any
money ordered to be paid under this rule may be recovered as though it were payable under a
decree for the payment of money

Execution of document
Rule 34 of the Order XXI deals with the various procedures that have to be followed for the
execution of the document According to this rule,
 When the judgment debtor disobeys the decree of execution of documents, the decree
holder has to prepare document and has to present it before the Court, draft of the
 The Court will present the draft to judgment debtor for him to raise any objects if any present
and also Court will fix a particular time within which the judgment debtor can make his
objection,
 The Court shall make orders to approve or alter the draft after receiving objections from the
judgment holder,
 The decree holder shall deliver a copy of the draft to the Court after making any alterations
as the Court may have directed upon the proper stamp paper if a stamp is required by the
law for the time being in force,
 The Judge or such officer as may be appointed in this behalf shall execute the document so
delivered.
 The Court or officer authorise by the Court has to register the document if the registration of
the document is required by the law.
 If the registration is not required but still the decree holder wishes to register the document
the Court has to make necessary orders;
 The Court may make orders regarding the expenses of the registration.

Provisions Related to Stay of Execution

Rule 26 - When Court may Stay Execution
 Mandatory Requirements for Stay:
o The executing court can stay decree execution for a reasonable time.
o Sufficient cause" must be shown by the judgment-debtor.
o Purpose: To allow judgment-debtor to approach:
 Court that passed the decree.
 Court with appellate jurisdiction.
 Property/Person Seizure Cases:
o The court can order restitution of seized property.

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 o Can order discharge of seized person.
o This is pending the application's result.
 Security Requirements:
o Court must require security from judgment-debtor
o Can impose conditions as deemed fit
o This is mandatory before:
 Staying execution
 Ordering restitution
 Ordering discharge
Rule 27 - Protection of Execution Rights
 Restitution/discharge orders don't prevent:
o Property being retaken in execution.
o Person being rearrested.
o Preserves decree holder's execution rights.
Rule 28 - Binding Nature of Orders
 Orders binding on executing court if from:
o Court that passed decree.
o Appellate court.
o The executive court must follow these orders.

Rule 29 – Stay During Pending Suit

When Applicable:
 Suit pending against decree holder.
 In same court as decree execution.
Court’s Powers:
 May grant stay until pending suit is decided.
 Can impose terms regarding security.
 Special Provision for Money Decrees:
 If stay granted without security.
 Court must record reasons in writing.

Conclusion
The provisions for Stay of Execution under the CPC reflect the legislative intent to ensure justice
while preventing abuse of the legal process. These sections strike a careful balance between
protecting the interests of judgment debtors and maintaining the efficacy of judicial orders. The
discretionary nature of stay orders, coupled with the requirement of reasonable conditions and time
limitations, ensures that execution proceedings are not unnecessarily delayed while legitimate legal
remedies are pursued. The courts’ power to modify or cancel stay orders further demonstrates the
dynamic nature of these provisions, allowing for adaptation to changing circumstances.
Understanding these provisions is essential for legal practitioners and litigants alike, as they form a
crucial part of civil litigation strategy and enforcement of decrees in India’s legal system.

3.3 Arrest, detention and attachment (Order XXI and XXXVIII)

Introduction

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A decree is passed by the court under the Code of Civil Procedure (hereinafter referred to as CPC)
to decide the rights and liabilities of the persons in a matter of controversy. The person in whose
favour a decree is passed is called decree-holder and against whom the decree is passed is
judgement debtor. There are various ways under civil law by which a decree can be passed. One
such way is "arrest and detention". The law relating to arrest and detention in the CPC has been
dealt with under Section 51 to 59 and Rules 30 to 40 of Order XXI.

Nature and scope

The provision is remedial in nature. It seeks to provide a remedy to the decree-holder where a suit
has been decided in his favour. Such a remedy can be in the form of arrest and detention of the
judgement. debtor if he fails to satisfy the decree passed against him.
The provision applies to every person against whom the decree is passed under the Code. When a
decree is passed in favour of a person, then that person has to move to the court for execution of
that decree. The court then according to the provisions of the Code can order for arrest and
detention of the judgement debtor.

Who cannot be arrested?

There are certain classes of persons that are exempted from arrest and detention under the various
provisions of CPC. Such persons include
1. Women, as per Section 56,
2. Judicial officers, as per Section 135(1),
3. Where a matter is pending, their pleaders, mukhtars, revenue-agents, and witnesses acting in
obedience to a summons, under Section 135(2),
4. Members of legislatures, as per Section 1354,
5. Classes of persons, whose arrest according to the State Government, might be attended with
danger or inconvenience to the public, under Section 55(2), and
6. Where the decretal amount is less than two thousand rupees, under section 58(1A).

Procedure to be followed
The procedure to be followed for arrest and detention is provided under Section 55. It says that a
judgement debtor can be arrested at any hour or any day during the execution of a decree, and
after such arrest, the person must be presented before the court. However, there are certain
restrictions regarding entry and time. They are as follows
1. That no dwelling house shall be entered after sunset and before sunrise.
2. That no outer door shall be broken in order to enter the house unless such a house is the
occupancy of the judgement debtor, in case he refuses to prevent access thereto.
3. Where the room is in occupancy of a woman who is not the judgement debtor and does not
appear in public due to the customs, the officer shall give reasonable time and facility to her to
withdraw therefrom.
4. Where there is a decree for the payment of money, and the judgement debtor pays the full
decretal amount and the costs of the arrest to the arresting officer, he shall not be arrested.

Notice
Order XXI Rule 37:
Before arresting a judgment debtor (the person who has to pay under a decree), the court usually

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sends a show-cause notice. This notice asks the debtor to appear in court and explain why he
should not be sent to civil prison for not paying.
 However, if the court believes (through affidavit or evidence) that the debtor might run away
to avoid payment, the court can directly issue an arrest warrant without sending notice.
 If the debtor ignores the notice and does not appear, the court may issue an arrest warrant (if
the decree-holder requests it).

Purpose of the notice: To protect an honest debtor who cannot pay due to genuine reasons and to
follow the principle of natural justice — "no one should be punished without being heard."
Order XXI Rule 40:
If the debtor comes to court after receiving the notice:
1. The court will first hear the decree-holder (the person who won the case).
2. Then, the debtor gets a chance to explain why he should not be arrested.
3. If the debtor shows genuine reasons for not being able to pay, the court may reject the
request for arrest.
4. But if the debtor fails to satisfy the court, he can be sent to civil prison (as per Section 51 and
other provisions of the CPC).

Case law: Mayadhar Bhor v. Moti Dibya

 If the judgment debtor fails to pay the money decree within 30 days, the court can ask him to
file an affidavit about his assets.
 If he disobeys, he can be sent to civil prison for three months.

Power and Duty of the Court

Section 55 CPC
 When a judgment debtor (the person who has to pay) is arrested for not paying money under
a decree and brought before the court, the court must inform him that he can declare himself
insolvent.
 If he follows the insolvency law properly and has not acted in bad faith (like hiding property or
cheating), he may be discharged.

Order XXI Rule 39

 A judgment debtor cannot be arrested unless the decree-holder (the person who won the
case) deposits some money in court for the debtor’s daily expenses (subsistence) until he is
produced in court.
 If the debtor is sent to civil prison, the court will fix a monthly allowance for his maintenance,
as per Section 57. If no official scale is fixed, the court will decide what amount is sufficient.
Important Case Laws
 Amulya Chandra v. Pashupati Nath:
If a judgment debtor has the means to pay but deliberately refuses, he can be detained. The
court must check whether the refusal is genuine inability or bad faith.
 Jolly George Verghese v. Bank of Cochin:
Justice Krishna Iyer held that:
o Mere default in payment is not enough to send someone to prison.
o There must be proof of bad faith, such as intentionally refusing to pay despite having
the money or deliberately hiding resources.
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Recording of reasons
Section 51 says that an order for detaining a person shall not be passed. unless, after the person
has been provided with an opportunity of showing cause why he should not be arrested, the court
for reasons recorded in writing must be satisfied:
 That the judgement debtor with the object of delaying the execution of the decree is likely to
abscond of the jurisdiction of the court or has dishonestly transferred, concealed or removed
his property, or has done any other act done in bad faith, or
 That the judgement debtor has the means to pay the amount or a substantial part of it and
refuses to pay the same, or
 That the decretal amount has to be paid on account of the fiduciary relationship.

Period of detention
Section 58 specifies the period for which a person can be detained, which is decided according to
the amount of the decree which has been passed against him by the court, and where he has failed
to pay that decretal amount. It says that a person cannot be detained for more than three months if
the decretal amount exceeds five thousand rupees and, for an amount between two thousand to
five thousand rupees, such detention cannot exceed six weeks. If the amount does not exceed two
thousand rupees, no order for detention of the judgement debtor can be made

Release of Judgment-Debtor
Section 58 – Grounds for Release before Completion of Detention
A person who is kept in civil prison can be released earlier if:
1. The decree against him is fully paid/satisfied.
2. The amount written in the warrant of detention is paid to the police officer.
3. The decree-holder (the person who filed the case) requests his release.
4. The decree-holder fails to pay the subsistence allowance (daily maintenance for the debtor in
prison).
Section 59 – Release due to Illness
 If a judgment-debtor is seriously ill, the court can cancel his arrest warrant.
 If he is already arrested and becomes unfit for prison due to illness, the court can order his
release.
 He may also be released by the State Government (in case of infectious/contagious
disease) or by the court (on grounds of serious illness).
 This law is meant to be applied liberally since it protects the debtor’s health and rights.
Important Point:
Even after being released (whether due to illness, government order, or after completing the
detention period), the judgment-debtor still has to pay the decretal amount. His liability does not
end.
Release for Insolvency Application (Section 55)
 If the judgment-debtor applies to be declared insolvent and provides security (guarantee)
that he will file the insolvency petition within one month and appear whenever required, the
court may release him temporarily.
 If he fails to file the petition or appear, the security can be forfeited and he may be sent back
to prison.
Order XXI Rule 40 – Discretion of the Court
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  If an inquiry is pending, the court may release the debtor if he provides security for appearing
before the court.
 Before sending a debtor to prison, the court may give him 15 days’ time to pay the decree.
During this time, he may:
o Stay in police custody, or
o Be released on furnishing security that he will appear again if the amount is not paid.
 If the court does not order detention after inquiry, it can reject the decree-holder’s application
and release the debtor if he is already arrested.

Re-arrest of judgment-debtor
Any person that has been released on grounds of senous illness in accordance with Section 59 can
be arrested again but the period of detention in aggregate should not be more than that prescribed
by Section 58
Arny person whose period of arrest has been completed as giveri under Section 58 cannot be
arrested again under the decree in execution of which he was detained in the civil prison.
Any person that has been released in accordance with Order XXI Rule 40 can be re-arrested.

Conclusion
The purpose of arrest and detention is to give relief to a decree-holder and commit the judgement
debtor to the civil prison if he does not pay the decretal amount despite having means to pay the
same. However, it also protects honest debtors, where his inability to pay is supported by a
reasonable cause. The court has to afford the right to be heard to the debtors in order to ensure
proper justice.

Attachment ( X XXVIII )
Introduction
Attachment before judgment, as outlined in Order XXXVIII Rule 5 of the Code of Civil
Procedure, 1908 (CPC), is a legal mechanism designed to prevent a defendant from frustrating the
execution of a potential decree by disposing of or removing their property beyond the court’s
jurisdiction. This provision ensures that the plaintiff’s interests are safeguarded during the pendency
of a suit.

OBJECTIVE AND SCOPE OF ORDER XXXVIII RULE 5 CPC

The primary objective of Order XXXVIII Rule 5 is to prevent any defendant from defeating the
realization of the decree that may ultimately be passed in favor of the plaintiff. This is achieved by
restraining the defendant from disposing of or removing their property with the intent to obstruct or
delay the execution of any decree that may be passed against them. The Supreme Court,
in Raman Tech. & Process Engg. Co. & Anr. vs. Solanki Traders, emphasized that the power
under this rule is drastic and extraordinary, and should not be exercised mechanically or merely
for the asking.

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ESSENTIALS FOR INVOCATION OF ORDER XXXVIII RULE 5
For a court to exercise its power under Order XXXVIII Rule 5, certain conditions must be satisfied:
1. Prima Facie Case:
The plaintiff must establish a bona fide and valid claim. Mere allegations without
substantial evidence are insufficient. In Raman Tech. & Process Engg. Co. & Anr. vs.
Solanki Traders, the Supreme Court held that the court should be satisfied that there is
a reasonable chance of a decree being passed in the suit against the defendant.
2. Intent to Obstruct or Delay:
There must be credible evidence indicating that the defendant intends to obstruct or delay
the execution of any decree that may be passed against them by:
o Disposing of the whole or part of their property.
o Removing the whole or part of their property from the local limits of the court’s
jurisdiction.
The Calcutta High Court, in Premraj Mundra vs. Md. Maneck Gazi, laid down guiding
principles, stating that mere allegations are not sufficient; particulars must be stated, and
the evidence should not be vague.

PROCEDURE FOR ATTACHMENT BEFORE JUDGMENT

The procedure under Order XXXVIII Rule 5 involves the following steps:
1. Application by Plaintiff:
The plaintiff must file an application supported by an affidavit detailing the grounds for
attachment, demonstrating the defendant’s intent to obstruct or delay the execution of the
decree.
2. Court’s Satisfaction:
The court must be satisfied, based on the affidavit or other evidence, that the defendant
is about to dispose of or remove their property with the intent to obstruct or delay the
execution of any decree that may be passed against them.
3. Show Cause Notice:
The court may issue a notice to the defendant to show cause why they should not
furnish security for the plaintiff’s claim.
4. Conditional Attachment:
If the court believes that the delay in issuing notice may defeat the purpose of the
attachment, it may order a conditional attachment of the defendant’s property.
5. Furnishing Security:
If the defendant fails to show cause or furnish the required security, the court may confirm
the attachment to the extent necessary to satisfy the decree.

LEGAL PROVISIONS AND CASE LAWS

 Order XXXVIII Rule 5 CPC: Empowers the court to direct the defendant to furnish security
to produce and place at the disposal of the court the property or its value, and to attach
the property if the defendant fails to comply.
 Order XXXVIII Rule 6 CPC: Provides that if the defendant fails to show cause or furnish
security, the court may order the attachment of the property sufficient to satisfy the decree.
 Order XXXVIII Rule 7 CPC: States that attachments under this order shall be made in the
manner provided for the attachment of property in execution of a decree.
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  Case Law: In Raman Tech. & Process Engg. Co. & Anr. vs. Solanki Traders,
the Supreme Court emphasized that the power under Order XXXVIII Rule 5 is drastic
and extraordinary, and should be used sparingly and strictly in accordance with the rule.

GUIDING PRINCIPLES
The Calcutta High Court, in Premraj Mundra vs. Md. Maneck Gazi, outlined several guiding
principles for the application of Order XXXVIII Rule 5:
 An order under Order XXXVIII Rules 5 and 6 can only be issued if the conditions stated
therein exist.
 The court must be satisfied that the defendant is attempting to remove or dispose of their
assets with the intention of defeating the decree that may be passed.
 Mere allegations are insufficient; specific particulars and evidence are required.
 The power should not be used to convert an unsecured debt into a secured debt or to
coerce the defendant to settle the suit claim.

EXCEPTIONS AND LIMITATIONS

Certain properties are exempt from attachment before judgment:
 Agricultural Produce:
Order XXXVIII Rule 12 specifies that the plaintiff cannot apply for the attachment of
any agricultural produce in the possession of an agriculturist, nor can the court order
such attachment.
 Third-Party Rights:
Attachment before judgment does not affect the rights of persons not parties to the suit,
nor does it bar any person holding a decree against the defendant from applying for the
sale of the property under attachment in execution of such decree.

CONCLUSION
Attachment before judgment under Order XXXVIII Rule 5 CPC is a protective measure to ensure
that the plaintiff’s potential decree is not rendered ineffectual due to the defendant’s actions.
However, given its drastic nature, courts exercise this power with caution, ensuring that all
prerequisites are satisfied and that the defendant’s rights are not unduly prejudiced. The principles
laid down in case laws, such as Raman Tech. & Process Engg. Co. & Anr. vs. Solanki
Traders and Premraj Mundra vs. Md. Maneck Gazi, provide valuable guidance to ensure the
judicious application of this provision.

3.4 Incidental proceeding. Payment into court, security costs and commissions
(Orders XXIV. XXV and XXVI)
Introduction
The Code of Civil Procedure, 1908 (CPC) is the law that governs the practice and procedure of
civil courts in India. One important part of civil cases is the payment of costs and interest by the
parties involved.
The rules for payment into court are given under Order 24 of the CPC. This order has four rules
and deals with situations where the defendant deposits money in court to satisfy the plaintiff’s
claim for debt or damages.
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Features of Order 24
 Order 24 applies only to the defendant, not to the plaintiff.
 The purpose of payment into court is to settle the claim, not to admit liability or agree with
the plaintiff’s case.
 The defendant may deposit money in court any time after filing an appearance and before
the final judgment or decree.
 Such payment is treated as an offer to settle the matter.
 Once the deposit is made, the defendant must give notice to the plaintiff through the
court.
 This rule applies to cases involving recovery of debts or damages.
 If the defendant deposits money at the stage of final arguments only to avoid interest, the
court may reject such an application.

Rules under Order 24

Rule 1 – Deposit by Defendant
 The defendant can deposit in court any amount he thinks is enough to satisfy the plaintiff’s
claim for debt or damages.
 This deposit can be made at any stage of the case, but before judgment or decree.
 Only the defendant can make this deposit, not the plaintiff.
 Courts have held (e.g., Digipulse India Pvt. Ltd. vs. JK Corp Ltd.) that Order 24 is meant only
for the defendant.
Rule 2 – Notice of Deposit
 Once the defendant deposits the money, he must give a notice through the court to the
plaintiff.
 The plaintiff can then apply to withdraw the deposited money.
 The deposit must be unconditional (not subject to extra conditions).
Rule 3 – Interest after Notice
 After notice of deposit is given, the plaintiff cannot claim interest on the amount deposited.
 The plaintiff can claim interest only up to the date of notice, not after.
 If the deposit is made only at the last stage to avoid paying interest, the court may reject it.
Rule 4 – Procedure after Deposit
 If the plaintiff accepts the deposit as part payment, he can continue the case for the balance.
But if the court finds that the deposit was full satisfaction, the plaintiff may have to pay the
defendant’s costs.
 If the plaintiff accepts the deposit as full payment, he must file a statement in court, and the
court will pass judgment accordingly.

Examples (Illustrations)
1. Ram owes Shyam Rs. 10,000. Shyam sues, and Ram deposits Rs. 10,000 in court. Shyam
accepts it. The court will allow Shyam costs since Ram forced him to go to court.
2. Rohan owes Sohan Rs. 20,000. Sohan sues for Rs. 25,000. Rohan deposits Rs. 20,000. If
Sohan accepts it as full payment, he must pay Rohan’s legal costs.
3. Raj owes Paras Rs. 4,000. Paras sues without demanding payment first. Raj deposits Rs.
4,000 in court. Even if Paras accepts it, he may not get costs since the case was
unnecessary.

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Problems with Costs under CPC
 Civil cases in India are increasing, and sometimes parties file false or frivolous suits just to
harass others.
 The current rules on costs are not strict enough to discourage such litigation.
 The 240th Law Commission Report noted issues like:
o Costs usually don’t follow the outcome of the case.
o The actual expenses of litigation are far higher than the costs awarded.
o Frivolous litigation is not discouraged properly.

Amendments by the Commercial Courts Act, 2015

 Section 35 of the CPC was changed for commercial disputes.
 Now, the court has wide powers to decide:
o Whether costs should be paid.
o How much costs should be paid.
o When they should be paid.
 Costs can include legal fees, witness expenses, and other proceedings-related costs.
 If the court departs from the general rule (that the losing party pays costs), it must give
reasons in writing.
 Section 35A was also amended, and one sub-section was removed.

Conclusion
Order 24 of CPC deals with payment into court by the defendant in suits for recovery of debt or
damages. The defendant may deposit money at any stage before judgment. If the plaintiff accepts it
as full settlement, the case ends. If he accepts it as part settlement, the case continues for the
balance. However, deposits made at the last stage just to avoid interest can be rejected by the
court.
This provision is designed to help defendants settle claims quickly and reduce unnecessary
litigation, but the rules about costs still need reform to prevent false and wasteful cases.

Payment into Court (Order – XXIV)

1. Deposit by Defendant
The defendant, in a suit for recovery of money or damages, may deposit in Court, at any stage of
the case, the amount which he believes is sufficient to satisfy the plaintiff’s claim.

2. Notice of Deposit
The defendant must inform the plaintiff about this deposit through the Court.
The plaintiff can withdraw the money after making an application, unless the Court directs
otherwise.

3. Effect on Interest
Once the plaintiff receives notice of the deposit, he cannot claim any interest on the deposited sum
from that date onwards, whether the amount fully satisfies the claim or not.

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4. Plaintiff’s Options after Deposit
(a) Accepting as Part Payment:
 If the plaintiff accepts the deposit only as part payment, he can continue the case for the
remaining amount.
 But, if the Court finds that the deposit was full satisfaction of the claim, the plaintiff must pay
the costs of the case after the deposit, and also earlier costs caused by his excessive claim.
(b) Accepting as Full Payment:
 If the plaintiff accepts the deposit as full satisfaction, he must file a statement in Court
confirming it.
 The Court will then pronounce judgment accordingly.
 While deciding costs, the Court will consider which party was more responsible for starting
unnecessary litigation.

Illustrations (Examples)
Example 1:
A owes B ₹100. B sues A without asking for payment first. A deposits ₹100 in Court immediately. B
accepts it in full. The Court should not allow B costs, as the suit was unnecessary.
Example 2:
A owes B ₹100. B sues A. A denies the claim but later deposits ₹100 in Court. B accepts it in full.
The Court should grant B his costs, since A’s denial forced the litigation.
Example 3:
A owes B ₹100 and is ready to pay. But B sues A for ₹150. A deposits ₹100 in Court and denies
liability for the extra ₹50. B accepts ₹100 in full. The Court should order B to pay A’s costs, as B
exaggerated the claim.

Security for Costs - Order XXV

1. When can the Court ask the plaintiff to give security for costs?
7. At any stage of the case, the Court can ask the plaintiff (person who filed the suit) to deposit
money or security to cover the costs of the defendant.
8. This can be done:
1. By the Court itself, or
2. On an application made by the defendant.
9. The Court must record reasons for such an order.
In which situations is this mandatory?
9. If there is only one plaintiff, and he/she has no property in India (other than the property in
dispute).
10. If there are multiple plaintiffs, but none of them has property in India (other than the property
in dispute).
11. If the plaintiff resides outside India.
12. If the plaintiff leaves India in such a way that makes it doubtful he/she will return to pay the
costs, if required.

2. What happens if the plaintiff fails to give security?

 If the plaintiff does not provide the security within the time given, the Court will dismiss the
suit (case will be closed).
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  However, the plaintiff may apply to restore the case if he/she can show a valid reason for not
being able to provide security in time.
 The Court may then restore the case on certain conditions (like costs or additional security).
 But before restoring the case, the plaintiff must serve notice of this application to the
defendant.

In short:
 The Court can ask the plaintiff to give security for costs, especially if the plaintiff has no
property in India or lives abroad.
 If security is not given, the case may be dismissed.
 The case can be restored if the plaintiff proves a genuine reason for default, but only after
informing the defendant.

Commission (Order – XXVI)

Introduction
The appointment of a commission by a court is a significant aspect of the judicial process, aimed at
ensuring that justice is served most effectively and efficiently. A commission refers to the instruction
or role given by the Court to a person to act on its behalf and fulfil specific duties required to deliver
full and complete justice. This article delves into the concept, process and implications of the
appointment of commissions under the Civil Procedure Code (CPC) of India.
What is the Issue of Commission by the Court?
A commission is essentially an instruction or a role conferred by the court to an individual,
empowering them to act on the court’s behalf to perform certain judicial tasks. The person who
carries out these tasks is known as a Court commissioner. For instance, in cases requiring local
investigations or recording evidence from a witness who cannot attend the court, a commissioner is
appointed to execute these responsibilities.

Who Can Appoint a Commissioner?

Under the CPC, the court that issues the commission is responsible for appointing the
commissioner. Section 75 of the CPC states that “the Court” can issue a commission subject to
certain limitations and restrictions. Therefore, the court adjudicating the suit has the authority to
appoint the commissioner. This appointment is typically made at the court’s discretion, either upon
the application of any of the parties involved or by the court’s own motion (suo moto).

Who Can Be Appointed as a Commissioner?

The individuals appointed as commissioners are generally selected from a panel formed by the High
Court. This panel includes advocates who are deemed competent to undertake the tasks assigned
by the court. The appointed commissioner should be independent, impartial and disinterested in the
suit and the parties involved. Additionally, the commissioner must possess the requisite skills to
perform the designated duties efficiently.

For instance, appointing a person who cannot comprehend accounts and documents to adjust
accounts would be impractical and a waste of resources. Similarly, a person without scientific
qualifications should not be appointed to conduct scientific investigations.

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The District Judge supervises the subordinate courts, ensuring special care is taken in the
appointment process. The same individual should not be repeatedly appointed for all commissions
and persons frequently seen around the court should be avoided to maintain impartiality.

Procedure for Appointment of a Commissioner

Every High Court has the authority (Article 227 of the Constitution of India) to establish rules and
regulations to be followed by the subordinate courts. The procedure for the appointment of a
commissioner is detailed in the rules of each state’s High Court. For instance, Chapter 10 of the
Delhi High Court Rules, 1967, outlines the following procedure for the appointment of
commissioners in Delhi:

1. A panel consisting of no more than four commissioners, including young persons and a lady
lawyer, is formed by the court for recording evidence.
2. The District Court notifies the bar about the vacancies for commissioners and the bar
forwards the applications received to the court, which then forwards them to the High Court
with its recommendations.
3. The term of appointment is generally three years, extendable by an order of the High Court,
but no commissioner can be appointed for more than six years.

When Can a Commissioner Be Appointed by the Court?

A commissioner can be appointed when the court issues a commission. Section 75 of the CPC
empowers the court to issue commissions for various functions, including:
To Examine Witnesses (Order 26 Rules 1-8)

The general rule of evidence mandates that evidence must be presented before the court and
recorded in open court. However, in extraordinary circumstances, the appearance of a witness can
be dispensed with and the witness can depose evidence through a commissioner. This exemption
applies in the following scenarios:
1. Sickness or Infirmity: If a witness is bedridden or unable to attend court due to sickness or
infirmity, the court can exempt their appearance and allow them to depose evidence to a
commissioner. Such witnesses must submit a certificate from a registered medical
practitioner as proof of their condition (Order 26 Rule 1, CPC).
2. Apprehension of Danger: If a witness apprehends danger to their life and informs the court
and if the court deems it necessary to record their evidence, a commission may be issued.
However, if a party accused of fraud seeks examination via commission, the court should
avoid issuing the commission to prevent abuse of the procedure.
3. Pardanashin Ladies: The appearance of pardanashin ladies, whose attendance is
exempted under Section 132 of the CPC, can be dispensed with and their evidence can be
recorded by a commissioner.
4. Civil or Military Officers: Civil or military officers of the government, whose attendance
would be detrimental to public service, can have their evidence recorded by a commissioner
(Order 26 Rule 4).
5. Interest of Justice: The court can issue a commission if it believes it is in the interest of
justice, for expeditious disposal of the case or for any other reason, notwithstanding any rules
provided in the order (Order 26 Rule 4A).

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 6. Persons Exempt from Attendance: Individuals who cannot be ordered to attend the court in
person under Order 16 Rule 19 can be examined by issuing a commission (Order 26 Rule 4
Proviso).
7. Persons Detained in Prison: A commission can be issued to examine individuals detained
in prison (Order 26 Rule 7).

To Make Local Investigations (Order 26 Rules 9-10)

Commissions can be issued to conduct local investigations to clarify any point of controversy in the
suit. This is especially useful in cases involving property disputes where the commissioner can visit
the site and submit a report to the court.

To Adjust Accounts (Order 26 Rule 11)

When complex financial transactions are involved and it is necessary to adjust accounts, a
commissioner can be appointed to scrutinise the accounts and report to the court.

To Make Partition (Order 26 Rule 13)

In suits involving partition of property, a commissioner can be appointed to divide the property in
accordance with the court’s decree and submit a report on the partition.

To Hold Scientific, Technical or Expert Investigations (Order 26 Rule 10A)

In cases requiring scientific, technical or expert investigations, a commissioner with the necessary
qualifications can be appointed to conduct these investigations and provide the court with an expert
report.

To Conduct Sale of Property (Order 26 Rule 10C)

For the sale of property in execution of a decree, a commissioner can be appointed to conduct the
sale and report the proceedings to the court.

To Perform Ministerial Acts (Order 26 Rule 12)

A commissioner can also be appointed to perform ministerial acts, such as signing documents or
carrying out other administrative tasks on behalf of the court.

Powers and Duties of a Commissioner

A commissioner appointed by the court has the authority to undertake the tasks specified in the
commission. The powers and duties of the commissioner include:
1. Recording Evidence: When appointed to record evidence, the commissioner must ensure
that the evidence is recorded accurately and comprehensively.
2. Local Investigation: If conducting a local investigation, the commissioner must visit the site,
gather relevant information and submit a detailed report to the court.
3. Adjusting Accounts: In cases requiring account adjustment, the commissioner must
thoroughly examine the financial records and prepare a report on the adjustments made.
4. Scientific or Technical Investigations: For scientific or technical investigations, the
commissioner must carry out the investigation with precision and submit an expert report.
5. Sale of Property: When tasked with selling property, the commissioner must conduct the
sale in accordance with the court’s directions and report the proceedings.

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 6. Ministerial Acts: For ministerial acts, the commissioner must perform the tasks diligently
and report back to the court.

Conclusion
The appointment of a commission under the CPC is a vital mechanism to ensure justice is served
efficiently and effectively. By delegating specific tasks to a commissioner, the court can obtain
detailed and specialised information, which aids in the proper adjudication of cases. The process
involves careful selection and appointment of qualified individuals who can perform their duties
impartially and competently. Understanding the roles, powers and procedures related to the
appointment of commissions helps in appreciating the judicial system’s efforts to deliver
comprehensive justice.

3.5 Interim orders, Temporary injunction (Order. XXXIX)

Introduction
Interim orders refer to temporary, provisional or interim arrangements made by the court during the
pendency of legal proceedings to protect rights and interests of parties. Interim orders are intended
to preserve status quo, maintain equilibrium and mitigate hardships until conclusion of the
proceedings.
Interim order
The Code of Civil Procedure contains several provisions empowering courts to pass interim orders
at the discretion of the court. Interim orders enable interim relief in cases of urgency until final
orders. Interim orders do not determine substantive or legal rights of parties, but are temporary
adjustments regulating rights of parties in the interim.
Interim orders are the orders which a court passes during the pendency of a suit or proceeding.
Such orders do not determine the substantive rights and liabilities of the parties with regard to the
subject matter of the suit or proceeding.
In the Code of Civil Procedure of 1908, such interim orders may be summarised as follows:
1. Payment in court under Order 24
2. Security for costs under Order 25
3. Commissions under Order 26
4. Arrest before judgement under Order 38
5. Attachment before judgement under Order 38
6. Temporary injunctions under Order 39
7. Interlocutory orders under Order 39
8. Appointment of receiver under Order 40
In this law post, you will read about interlocutory orders provided under Order 39 from Rule 6 to
Rule 10 of the Civil Procedure Code (CPC).
Types of Interim Orders
Some important types of interim orders under CPC are:
1. Temporary Injunctions (O.39 R.1) – Court can issue temporary injunction restraining defendant
from committing acts complained of until further orders. This maintains status quo regarding subject
matter to prevent irreparable loss.
2. Interlocutory Mandatory Injunctions (O.39 R.2) – Mandatory injunctions issue directing
defendant to carry out specified acts pending suit to undo harm or prevent irreparable damage.

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3. Detention, Preservation and Inspection of Subject matter (O.39 R.2) – Court can pass orders
for custody, detention, preservation or inspection of any property which is subject matter of suit to
maintain status quo.
4. Appointment of Receiver (O.40 R.1) – Court may appoint Receiver of any property at issue
subject to conditions during proceedings to protect assets.
5. Attachment before Judgment (O.38) – Where defendant intends to obstruct execution of
decree, court may order attachment of property before judgment.
6. Temporary Ex parte Orders (O.39 R.3) – Urgent ad-interim ex-parte orders can be passed
without notice to prevent damage pending admission by court.
7. Security for Keeping Property (O.39 R.4) – Defendant can be directed to furnish security for
fulfilling judgment before removing attached property.
8. Directions on Disputed Possession (O.39 R.6) – Where suit property’s possession is disputed,
court may pass interim order regarding custody and enjoyment till rights decided.
9. Commission for Preservation (O.39 R.7) – Local commission may be issued to assess and
report measures required to protect or preserve property pendente lite.
10. Stay of Execution of Decree (O.41 R.5) – Court which passed decree may on sufficient
grounds order stay of execution on terms on application by judgment debtor.

Principles for grant of interim orders

 Irreparable hardship and injury will be caused if order not granted.
 Balance of convenience lies in favour of order.
 Prima facie case exists in favour of applicant.
 Order necessary to preserve status quo or prevent damage.

Case Laws
 Dorab Cawasji Warden vs Coomi Sorab Warden, AIR 1990 SC 867
The Supreme Court observed that grant of an interim relief preserving status quo is a device to
ensure that the matter does not become either infructuous or a fait accompli before the final
hearing. The object is to protect party against injury by violation of rights pending trial.
 Gujarat Bottling Co. Ltd. vs Coca Cola, (1995) 5 SCC 545
The Supreme Court held that interim injunctions can be granted only if the plaintiff makes out a
prima facie case, balance of convenience is in his favour and refusal would cause irreparable injury.
There must be a substantial question to be tried on merits.

3.5 Interim orders, Temporary injunction (Order. XXXIX)

What is an injunction
Injunction litigation is a crazy ride consisting of low points, high points, twists, turns, and challenges.
An injunction, by its very name, means preventive relief. The grant of an injunction is an equitable
remedy that prevents a defendant party from doing certain demonstrations or certain acts or makes
them do such acts so that they are not bothersome or do not cause any nuisance to the plaintiff.

When a court comes up with a judgment in such a suit, the parties must abide by and adhere to the
ruling, in the absence of which there can be severe monetary penalties or even imprisonment in a
few cases;

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An injunction can be defined as discretionary relief by the court, either requiring the party to do
something or refraining from doing something. It may be in the form of an interim order or a final
order. The few instances where the remedy of injunction is used are:
 To prevent someone from publishing content online or offline or to destroy the already
published content,
 To prevent from further construction on a piece of land or from selling or transferring any
property in question,
 To grant a search order,
 To prevent someone from leaving the place or country.
Injunctions can be called one of the powerful tools that can be used by the courts to not only stop
someone from violating another person's rights but also to mandate the doing of an act to enforce
another person's rights.

Need of injunctions
 When irreparable damage is suffered by an individual from the actions of another individual
and the same cannot be remedied through any other means, there is a need for injunctions in
order to stop that other individual from doing those certain actions.
 It is necessary for the courts to grant injunctions in order to enforce and protect the rights of
the people and prevent the breach of obligations that are in existence.
 While granting injunctions, the courts must also record reasons and objects and how the
delay would defeat the purpose of law in this regard
 It can only be issued against the party (the deferidant) and not a stranger to the case or a
third party, as has been held in the case of LD Mestori School Society v. Kashi Nath (1951),
 If any other efficacious relief is available, then the courts can refuse to grant an injunction,
and only a monetary loss can be the sole ground for claiming irreparable damage under an
injunction
 It has been recognised as a legal tool for justice through which courts enforce the rights of
individuals by granting injunctions against those who are violating such rights.
 It is used as a preventive measure by restricting the one who creates a nuisance for others.
 It is an equitable relief that aims at providing equity under the law to restore the positions of
both parties.
 It is essential in any legal system since it aims at maintaining the status quo of the parties by
issuing such injunctions against the wrongdoer
 Apart from restricting, injunctions can also be granted to ensure specific performance of
certain acts in order to uphold the rights of the affected party.
 It provides for a tailored solution for the parties based on facts and circumstances of each
case by restricting anyone from creating nuisance or ordering the destruction of such posts
that could affect the plaintiff
 Further, the injunctions aim to undo the irreparable harm suffered by any party,

What is an Injunction?
An injunction is a remedy granted by the court that prohibits the commission of a wrong threatened
or the continuance of a wrongful course of action already begun. If a party fails to comply with an

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injunction granted by a court, then the party could face criminal or civil penalties or contempt of
court.

When is injunction invoked?

The Indian legal system doesn't facilitate an application for an injunction, unless and until in the
existence of a possibility of an irreparable injury. Irreparable injury is a scenario wherein it is proved
that the harm inflicted on the applicant cannot be amended in any other form.

Governing Law
The law of injunctions is covered explicitly under various Relief Acts and is implemented in
accordance with the Civil Procedure Code. On a precise note, the laws pertaining to this provision
which includes Section 151 and Section 94 of the Code.
Requisites of an Application for Injunction
The applicant can furnish the application for an injunction if:
 The petitioner has a strong prima-facie case, which has the potential to succeed.
 The balance of the convenience or that of inconvenience is in favour of the petitioner,
 Non-granting of a temporary or permanent injunction would force the petitioner to suffer
irreparable damage.

Types of Injunction
The following are the different types of the injunction:
 Preliminary injunction
 Preventive Injunction
 Mandatory injunction
 Temporary restraining order
 Permanent injunction

Preliminary Injunction:
A preliminary injunction, which is also known as an ad-interim injunction, is assigned to a plaintiff
prior to a trial. preliminary injunction preserves the subject matter in its existing condition to prevent
any dissolution of the plaintiff's rights, and thereby render him/her the possibility of immediate relief.

Preventive Injunctions:
A preventive injunction is an adjudication that forces an individual to abstain from doing an action
that is preventive, prohibitive or negative. The injunction intends to prevent a threatened injury,
preserve the status quo, and reserve the continued commission of an ongoing wrong.

Mandatory Injunction:
Considered as the most rigorous of all injunctions, a mandatory injunction directs the defendant to
perform an act. For example, if a court orders the removal of a building or structure due to
misplaced construction, then it fits the description of a mandatory injunction.

Temporary Restraining Order:

A temporary restraining order is just what its name suggests, as the same is valid until the period of
restraining order draws to a closure. The court grants it to preserve the status quo of the subject of
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the controversy until the hearing of an application for a temporary injunction. Through it, it also
seeks to prevent any instance of unnecessary and irreparable injury.

Permanent Injunction:
At the time of final judgement issues the permanent injunction for granting a final relief to the
applicant. These injunctions remain constant if the conditions that produced them are permanent.

Contempt of Court
The provisions of an injunction comply with the respective parties, failing which the defendant is
punishable for Contempt of Court after performing the necessary trial or hearing. Such a scenario
would force the defaulter to remit the prescribed penal charge and/or face imprisonment. The
quantum of punishment would be decided by considering the type of default.

Prohibitory Injunction
A prohibitory injunction when granted by a court, prohibits the defendant from doing a wrongful act
that would be an infringement of the plaintiff's legal rights. For example, prohibitory injunctions
restrain a breach of contract or to protect the disclosure of confidential information.

Mandatory Injunction
A mandatory injunction forbids a defendant from continuing a wrong act that has already occurred at
the time when the injunction is issued. The purpose of a mandatory injunction is to restore a
wrongful state of things to the rightful order. For example, a mandatory injunction makes the
defendant deliver possession of a property to its rightful owner.
When issuing a mandatory injunction, the Courts would take into consideration, whether the plaintiff
could be adequately compensated or whether the grant of an injunction was necessary to do
justice.

Interlocutory or Interim Injunction

An interlocutory injunction is a type of temporary injunction, which is operational during the
pendency of the case before the court. Hence, an interlocutory injunction can compel or prevent a
party from doing certain acts, pending the final determination of the case. The primary purpose of
using an interlocutory injunction is to preserve matters in the status quo.
The following points are considered by the Courts while refusing or granting an interim injunction
whether the:
 petitioner has made out a prima facie case;
 balance of convenience is in the petitioner's favour;
 petitioner would suffer irreparable injury.

Temporary injunction
Introduction
A temporary injunction in CPC serves as a vital tool to maintain order and protect the interests of
parties involved in a dispute. This court-issued order, with a limited duration, is designed to either

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prevent someone from taking specific actions or compel them to do certain things until a final verdict
is reached.
The underlying principles of a temporary injunction revolve around ensuring fairness and preventing
irreparable harm during the course of litigation. To grant such an injunction, courts consider factors
like the existence of a prima facie case, a balance of convenience and the potential for harm that
cannot be remedied through monetary compensation.

Temporary Injunction Meaning

A temporary injunction is a court order that’s given while a case is ongoing to keep things the way
they are until the case is finally decided. Its main purpose is to stop someone from causing serious
harm to another party during the legal process. This idea was made clear in the case of “M/S
Gujarat Pottling Co. Ltd. & Ors v. The Coca Cola Company & Ors. (1995)”.

The rules for temporary injunctions are found in the Civil Procedure Code of 1908 and here’s what
they say:
 Section 94 of the law is about preventing interference with justice. Part (c) deals with giving
out temporary injunctions and has rules for making sure people follow them, like putting
someone in civil prison or selling their property to make them comply.
 Section 95 allows the court to consider giving money to the defendant if the plaintiff’s claim
gets dismissed.
 Order 39 of the Civil Procedure Code (CPC) has a bunch of rules about temporary
injunctions.

Temporary Injunction in CPC

Temporary injunctions in India are regulated by the Civil Procedure Code of 1908 and the specific
rules for their grant and application are as follows:
Order XXXIX, Rule 1: This rule allows the court to grant a temporary injunction under CPC when
it’s considered fair and appropriate to do so in order to prevent a breach of an obligation or harm
caused by a genuine fear of such a breach.
Order XXXIX, Rule 2: This rule lays out the conditions that must be met for a temporary injunction
to be granted. These conditions include having a strong initial case, a balance of convenience and
the potential for irreparable harm.
Order XXXIX, Rule 3: This rule explains the process for getting a temporary injunction in CPC and
what you need to do, including submitting an application supported by a sworn statement.
Order XXXIX, Rule 4: This rule covers the court’s authority to seize property when it’s necessary to
ensure that a temporary injunction isn’t undermined.
Order XXXIX, Rule 5: This rule allows the court to change or cancel a temporary injunction at any
point during the proceedings if it’s appropriate based on the situation.
Order XXXIX, Rule 6: This rule deals with how long a temporary injunction in CPC lasts. It can stay
in effect until a specific time or until the court says otherwise.
Order XXXIX, Rule 7: This rule explains what happens if someone disobeys or violates a temporary
injunction. It includes potential contempt of court proceedings and other remedies for the harmed
party.
These rules set out the structure for the granting and management of temporary injunction under
CPC. It’s crucial for both parties seeking or challenging a temporary injunction to be familiar with
these rules and follow the outlined procedures.

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Grounds of Temporary Injunction in CPC
The case of Dalpat Kumar And Another v. Pralhad Singh And Others (1991) has established three
key requirements for application for temporary injunction and granting a temporary injunction under
CPC. They are:
Prima Facie Case
This means that in a lawsuit, there must be a serious and disputed question for a temporary
injunction in CPC. The facts surrounding this question should indicate a reasonable likelihood of the
plaintiff or defendant being entitled to relief. It’s important to note that a prima facie case doesn’t
require an irrefutable argument that’s certain to succeed at trial. Rather, it means that the case
presented for the injunction should have sufficient merit to not be dismissed outright.

Irreparable Loss
If an individual were to suffer an irreparable loss related to the lawsuit before their legal rights are
determined at trial, it would result in grave injustice. However, it’s essential to understand that
losses such as the sentimental value of an item typically won’t be considered irreparable. On the
other hand, damages that cannot be adequately remedied through legal means, especially when
there’s no fair or reasonable solution, may be regarded as irreparable.

Irreparable harm can also refer to situations where the injury is ongoing or repetitive, or where it can
only be remedied through multiple legal actions. Sometimes, the term “irreparable damage” relates
to the difficulty of quantifying the amount of harm suffered, but mere difficulty in proving injury does
not establish irreparable harm.

Balance of Convenience
The court must weigh the circumstances of both parties and compare the potential harm or
inconvenience that could result from withholding the injunction versus granting it. In essence, the
court should determine whether the harm or inconvenience caused by not granting the injunction
would be greater than what could occur if it were granted.
These three requirements serve as important criteria for deciding whether to grant a temporary
injunction in legal cases.

In Mandati Ranganna v. T. Ramachandra (MANU/SC/7567/2008 : AIR 2008 SC 2291), the court

emphasised that when considering an application for the grant of a temporary injunction in CPC, it’s
not sufficient to only consider the fundamental elements such as the existence of a prima facie
case, balance of convenience and irreparable injury.
Granting an injunction is an equitable remedy and the court must also take into account the conduct
of the parties involved. Specifically, if one party has remained silent for an extended period and
allowed another party to exclusively deal with a property, they may not be entitled to an injunction.
The court will not intervene solely because the property in question is valuable. The court’s primary
goal is to protect the interests of all parties involved.

In Paidsetti Bhanknarayna v. Paidsetti Rajeshwar Rao (AIR 1999 Ori 92), the court observed
that it’s not always necessary for the plaintiff to prove their absolute title to the property in dispute. It

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is sufficient if the plaintiff can raise a legitimate question regarding the existence of the right they
claim.
Furthermore, if the plaintiff can convince the court that the property in question should be preserved
in its current condition until the legal question is resolved, that may justify the grant of an injunction.
This highlights that in certain cases, a party seeking an injunction need not establish full ownership
but must show a genuine claim and a need to protect the property during legal proceedings.

How Long Does Temporary Injunction Last?

The duration of a temporary injunction is determined by the court when it grants the injunction.
According to “Order XXXIX, Rule 6 of the Civil Procedure Code of 1908,” a temporary injunction can
remain in effect until a specified time or until the court issues further orders.

The duration of a temporary injunction in CPC depends on the type of injunction granted:
Pendente Lite Injunction: This type of injunction remains in force until the conclusion of the
ongoing legal proceedings and the final decision of the court. If the lawsuit is dismissed, the
temporary injunction is also lifted.

Permanent Injunction Lawsuit: In cases involving a permanent injunction, a temporary injunction

issued by the court can be made permanent as part of the final decree. This means that the
temporary injunction under CPC effectively becomes a permanent measure as determined by the
court’s final decree.

In summary, the validity of a temporary injunction in CPC varies based on the nature of the
injunction. For pendente lite injunctions, it lasts until the conclusion of the legal proceedings, while in
suits for permanent injunctions, the temporary injunction may become permanent through the
court’s final decree.

Can an Injunction Be Granted to the Defendant?

The Supreme Court issued a notice in the case of Tamminedi Ramakrishna Etc. v. N. Jayalakshmi.
The central issue was whether Defendant had the right to seek an injunction under Order XXXIX
Rule 1 © of the Code.

The SLP (Special Leave Petition) challenges the Karnataka High Court’s order, which affirmed the
Trial Court’s decision and granted a temporary injunction in favour of the Defendant under Order
XXXIX Rule 1 (a), (b) and (c) read with Section 151 of the Code. The High Court attempted to
distinguish the three sub-rules of Order XXXIX Rule 1, suggesting that sub-rules (b) and (c) provide
remedies primarily for Plaintiff, while sub-rule (a) is a more general provision.
Various High Courts have expressed differing opinions on whether a Defendant can seek an
injunction against a Plaintiff without filing a counter-claim. The High Court of Travancore and Kochi
(formerly) and several other High Courts have held that a Defendant can request a temporary
injunction against a Plaintiff if their claim is related to or incidental to the Plaintiff’s cause of action.

In the case of Ganga Bricks Udhyog v. Jai Bhagwan Swarup, the Allahabad High Court granted
interim relief to Defendant by requiring Plaintiff to provide security for any potential losses incurred
by Defendant if the lawsuit ended unfavourably. This decision recognised that Defendants could
suffer harm if the claim was dismissed or if the status quo was maintained during the lawsuit.

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In conclusion, the Code provides various avenues for parties to seek temporary injunctions under
CPC. The legislature’s intent is evident in the terms used in Order XXXIX Rule 1, which specifically
allows remedies for Plaintiff against Defendant’s actions or inactions under sub-rules (b) and (c).
Only sub-rule (a) is written in a neutral manner. Consequently, the legislature intentionally
distinguishes between remedies available to Plaintiffs and Defendants under the Code. Therefore, it
would be inappropriate for the Court to rule in a manner contrary to the legislative objective.

Can an Injunction Be Issued Against A Court?

Generally, courts are granted immunity from temporary injunctions in CPC to protect their
independence and ensure the proper administration of justice. This principle is rooted in the concept
of judicial immunity. Courts and judges need certain protections to carry out their functions without
undue interference. However, there are limited circumstances in which an injunction may indirectly
impact a court’s actions or decisions.
For instance, if a court exceeds its jurisdiction or violates established legal principles, a party may
seek relief from a higher court through writs like certiorari or prohibition. These writs can indirectly
affect the proceedings of the court in question. Additionally, if a court is involved in administrative or
non-judicial functions, it may be subject to injunctions in those specific contexts.
It’s essential to recognise that such situations are exceptional. In general, courts enjoy immunity
from injunctions to uphold the proper administration of justice and safeguard the integrity of the
judicial process.

Conclusion
A temporary injunction in CPC is a court-issued order that temporarily restrains a party from taking
specific actions or compels them to do certain things for a limited period, typically until a final
decision is reached in a legal dispute. It aims to maintain the status quo, preventing irreparable
harm or injury to one party while a case is being litigated. To grant a temporary injunction, courts
assess whether there’s a prima facie case, a balance of convenience and the potential for
irreparable harm. It’s a legal tool used to ensure fairness and protect the rights of parties involved in
ongoing legal proceedings.

Interlocutory order
Introduction
In legal proceedings, there are instances where immediate relief is required before the final
adjudication of the case. To address such urgent matters, courts have the power to pass
interlocutory orders. These orders ensure the protection of the rights and interests of the parties
involved while the suit is still pending. The Code of Civil Procedure, 1908 (CPC), provides a
structured framework for interlocutory orders, particularly under Order 39, Rules 6 to 10. This article
provides a detailed analysis of interlocutory orders under CPC, their significance, types, and legal
principles governing them.

Definition of Interlocutory Order

An interlocutory order is a temporary order passed by a court during the pendency of a case. Such
orders do not decide the substantive rights of the parties but provide immediate relief when the
need arises. The primary purpose of an interlocutory order is to prevent irreparable harm, maintain
status quo, or ensure the proper administration of justice before the final decision.
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According to Webster’s Dictionary, an interlocutory order is an order that is not final or conclusive. In
simple terms, these orders deal with ancillary matters and do not conclude the main issue in a
lawsuit.

Interlocutory Order or Interim Order

The word “interlocutory” means not final or definitive or that which only settles some
intervening matter relating to the cause.
In simple terms, a decree or judgement given provisionally (which may or may not be related to the
actual issue which is raised and is to be decided primarily) during the course of a legal action is an
interlocutory order. Thus, whenever a court is satisfied that there is an urgent need to decide a
matter, the court can make an interlocutory order.
Order 39 Rule 6 of the Code of Civil Procedure deals with the court’s power to order interim sale. It
states that the court can order for the sale of such movable property which is subject to speedy and
natural decay (perishable goods) on the application of parties or for any other justified reasons.

Interlocutory Order in Specific Subject-Matter

Under Rule 7 of Order 39, a court can also order for detention, preservation, or inspection of any
property which is the subject matter of such a suit or as to which any question may arise. For this
purpose, the court can:
1. Allow any person to enter any land or building,
2. Authorises any sample or to observe or to try experiments to obtain full information.

Prior Notice Before Passing Interlocutory Order

The court must give notice to the opposite party before making any interlocutory order. If a delay
occurs in imparting justice to the party by serving a prior notice, then the interlocutory order can still
be passed without serving the [Link] court can also make the interlocutory order in the
following matters:
1. Where the subject matter of a suit is money, or
2. Some other thing capable of delivery, and a party to a suit admits that he holds such
money or thing as a trustee for another party.
In the above two cases, the court can make the interlocutory order and order to deposit the money
or the thing (capable of delivery) into the custody of the court.

Purpose of Interlocutory Orders

The primary objectives of interlocutory orders are:
1. Preservation of Subject Matter – To protect property, documents, or evidence from
destruction or alteration.
2. Preventing Irreparable Harm – To avoid any action that may cause irreversible damage to
any party before the final verdict.
3. Ensuring Fair Trial – To maintain status quo and prevent undue advantage to any party.
4. Facilitating Judicial Process – To regulate procedural aspects like security for costs,
appointment of receivers, and attachment of property before judgment.

Legal Basis of Interlocutory Orders in CPC

Interlocutory orders are covered under various provisions of CPC, 1908, including:

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Order 39: Temporary Injunctions and Interlocutory Orders
Order 39 specifically deals with temporary injunctions and interlocutory orders, ensuring that
parties do not take unfair advantage while the case is pending. Rules 6 to 10 provide the legal
framework for interlocutory orders.
Other CPC Provisions for Interlocutory Orders
 Order 24 – Payment into Court.
 Order 25 – Security for Costs.
 Order 26 – Commissions.
 Order 38 – Arrest Before Judgment.
 Order 38 – Attachment Before Judgment.
 Order 40 – Appointment of Receiver.

Types of Interlocutory Orders

Temporary Injunctions (Order 39, Rules 1-5)
A temporary injunction is an order restricting a party from performing specific acts that could
affect the outcome of the case. The court grants an injunction if:
 There is a prima facie case.
 There is a possibility of irreparable damage.
 The balance of convenience favors the applicant.

Interim Sale (Order 39, Rule 6)

When property involved in a case is perishable or subject to natural decay, the court may order
its interim sale to prevent loss.

Detention, Preservation, and Inspection of Property (Order 39, Rule 7)

The court may order the detention, preservation, or inspection of property involved in litigation to
prevent tampering or damage.

Entry into Land or Building (Order 39, Rule 8)

If necessary, the court may permit a party or appointed individual to enter a building or land for
examination, taking samples, or performing experiments to gather evidence.

Depositing Money or Property in Court (Order 39, Rule 10)

If a party admits holding money or property in trust for another party, the court may order it to
be deposited into the court’s custody.

Legal Principles Governing Interlocutory Orders

The Supreme Court and High Courts have established principles to determine when interlocutory
orders should be granted. These include:

Doctrine of Res Judicata in Interlocutory Orders

Interlocutory orders do not decide the merits of a case. Hence, the principle of res
judicata (preventing re-litigation of the same issue) does not apply.
 Erach Boman Khavar vs. Tukaram Sridhar Bhat – Supreme Court held that res
judicata applies only when an issue is decided on merits.

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Amendment of Pleadings and Interlocutory Orders
Courts have discretion to allow amendments if they meet two conditions:
 The amendment does not cause injustice.
 It is necessary to determine the main controversy.
 Pirgonda Hongonda Patil vs. Kalgonda Shidgonda Patil – Established that all necessary
amendments should be allowed unless they cause prejudice.

Appeals and Revision Against Interlocutory Orders

Appeal Against Interlocutory Orders
 General Rule: No direct appeal lies against interlocutory orders.
 Exception: Appeals are permitted if the order significantly affects the final decision.
 Section 105 CPC: Allows objections against interlocutory orders in appeals against the final
decree.

Revisional Jurisdiction (Section 115 CPC)

 High Courts have limited power to revise interlocutory orders.
 Only orders involving jurisdictional errors can be reviewed.
 Tek Singh vs. Shashi Verma – Supreme Court restricted High Court’s power to interfere in
interlocutory orders.

Challenges and Misuse of Interlocutory Orders

While interlocutory orders serve a crucial role, they are often misused to cause delays in litigation.
 Frivolous Applications: Some litigants file unnecessary interlocutory applications to delay
proceedings.
 Judicial Overburden: Excessive reliance on interlocutory orders leads to congestion in
courts.
 Preventive Measures: Courts are increasingly imposing costs on frivolous interlocutory
applications.

Landmark Case Laws on Interlocutory Orders

1. Arjun Singh vs. Mohindra Kumar – Held that after a case is reserved for judgment, no
further interlocutory applications should be entertained.
2. Indian Council for Enviro-Legal Action vs. UOI – Supreme Court imposed a fine of ₹10
lakhs for misuse of interlocutory applications.
3. Nitish Kumar Case – Delhi High Court imposed a cost of ₹20,000 on the Bihar CM for filing
a frivolous interlocutory application.

Conclusion
Interlocutory orders are an essential part of civil litigation, helping protect parties and maintain
judicial efficiency. However, their misuse has led to delays and unnecessary litigation. Courts must
balance judicial discretion with strict scrutiny to ensure interlocutory orders serve their true purpose
– preserving justice and protecting rights without delaying the final verdict. Proper implementation of
costs and penalties for frivolous applications can help streamline the judicial process and ensure fair
and speedy justice.

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3.6 Interpleader, Special case and Summary procedure (Order XXXV, XXXVI and
XXXVII)
Interpleader suit
Introduction
Where conflicting claims and uncertainties often reign supreme, the interpleader suit stands as a
beacon of clarity and fairness. This legal mechanism, often overlooked in the broader spectrum of
civil procedures, serves as a vital instrument for resolving disputes over property, debts and assets.
An interpleader suit is not merely a legal safeguard; it is a powerful tool designed to protect the
rights of individuals and entities who find themselves caught in the crossfire of conflicting interests.

What is Interpleader Suit?

An interpleader suit is a legal action initiated by a person or entity holding property, funds, or assets
that are claimed by two or more conflicting parties. An interpleader suit is filed when the party
holding the property has no interest in it, except for potential charges or costs and seeks to avoid
liability or multiple lawsuits.
The primary dispute in an interpleader suit typically arises among the defendants who interplead
against each other, rather than involving the plaintiff and the defendant of a case. An interpleader
suit is distinguished by the fact that the plaintiff is not directly involved in the subject matter under
contention. The fundamental and most significant objective of an interpleader suit is to resolve
conflicting claims among rival defendants. This situation arises when there is a disputed debt,
capital, or other property solely between the defendants. Essentially, an interpleader suit is initiated
to adjudicate a matter concerning a third party.

In an interpleader suit, it is essential for the plaintiff to maintain impartiality and avoid arbitrariness.
For instance, consider the scenario where ‘A’ holds a total of Rs. 10,000, which ‘B’ and ‘C’ both
claim against each other. ‘B’ and ‘C’ are brought to court by ‘A’ in an interpleader suit. During the
proceedings, it is revealed that ‘A’ had previously reached an agreement with ‘B’ before filing the
suit, stipulating that if ‘B’ were to win the case, he would accept only Rs. 9,000 from ‘A’ as full
settlement of his claim. Since ‘A’ has an interest in the subject matter of the suit due to this
arrangement, he is not eligible to initiate an interpleader suit. Consequently, the complaint should be
dismissal

An interpleader suit is a legal action where the real dispute is not between the plaintiff (the person
filing the suit) and the defendant(s) but between multiple defendants who are claiming the same
property or money. Unlike an ordinary lawsuit, the plaintiff in an interpleader suit is not personally
involved in the conflict but simply brings the case to court to determine the rightful owner.

Legal Meaning of Interpleader

To interplead means to litigate with each other over a legal claim that concerns a third party. This
suit ensures that the correct claimant receives the disputed property while protecting the neutral
party (plaintiff) from multiple lawsuits.

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Who Are the Parties in an Interpleader Suit?
Plaintiff – The person who holds the disputed money or property and does not claim any personal
interest in it. They file the suit to avoid being held responsible for giving the property to the wrong
party.
Defendants – The people who are making conflicting claims over the property or money.
They interplead (litigate against each other) to establish their rights.

Key Features of an Interpleader Suit

 The plaintiff does not have a personal interest in the property.
 The plaintiff only facilitates the legal process and is not liable for any damages.
 The court decides which defendant has the stronger legal claim over the disputed property.
 In Indian law, Section 88 and Order XXXV of the Civil Procedure Code (CPC) govern
interpleader suits.

Objective
The main purpose of an interpleader suit is to resolve conflicting claims between two or more
parties over the same property or money. Instead of the holder of the property deciding who should
get it, the court determines the rightful owner.

Judicial Interpretation
In Raja Bhagwati Baksh Singh v. Civil Judge, AIR 1961 All 559, the court held that an interpleader
suit requires a dispute over money, property, or debt between the defendants. The plaintiff must
have no personal interest in the disputed property except for legal costs and must be willing to hand
it over to whoever the court declares as the rightful owner. The court also allowed amendments to
the plaint to include new properties or additional parties.

Who Cannot File an Interpleader Suit? (Order XXXV Rule 5)

 An agent cannot file an interpleader suit against their principal.
 A tenant cannot file an interpleader suit against their landlord to force them into a dispute with
a third party.

In N.M.N. Duraiswami Chettiar v. Dindigul Urban Co-operative Bank Ltd., the court ruled that a bank
could file an interpleader suit when a dispute arises over ownership of a deposit between a
customer and a third party. This does not violate Order XXXV, Rule 5 of the Civil Procedure Code
(CPC), 1908.
Illustration- A person, A, has ₹2 crores as a fixed deposit in a bank. He has two wives, and each has
one child. Both wives claim the deposit for their child’s maintenance. Since the bank does not know
who the rightful owner is, it files an interpleader suit to let the court decide.

Conditions for Filing an Interpleader Suit

 To file an interpleader suit, the following conditions must be met:
 A dispute must exist over a debt, sum of money, or movable/immovable property.
 Two or more parties must claim the same property but in conflict with each other.
 The holder of the property (such as a bank or trustee) must not claim ownership, except for
any charges or costs incurred. They must be willing to hand it over to the rightful owner once
decided by the court.

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  There must not be any pending case that can already resolve the issue between the
claimants.

When Can an Interpleader Suit Be Filed? (Section 88)

 The suit can be filed when ownership or possession of money or property is in dispute.
 The person holding the property must not have any personal interest in it and should be
willing to transfer it to the rightful owner as determined by the court.

Appeal Against Dismissal of an Interpleader Suit:

If an interpleader suit is dismissed, an appeal can be filed under Order XLIII, Rule 1 of the CPC,
1908

Essential elements of an interpleader suit as follows:

Before initiating an interpleader suit in CPC, the following conditions must be met as per
Section 88:
 Disputed Debt or Property: There must be a disputed debt, sum of money, or other
property, whether movable or immovable.
 Multiple Claimants: Two or more persons must be making adverse claims to this
debt, money, or property.
 Disinterested Claimant: The person from whom the debt, money, or property is
claimed should not have any interest in it, except for charges and costs. They must be
willing and ready to pay or deliver it to the rightful claimant.
 No Pending Suit: There should be no other pending suit where the rights of the rival
claimants can be properly adjudicated.

Procedure at First Hearing in Interpleader Suit

Order XXXV Rule 4 addresses the procedure at the first hearing of an interpleader suit. This rule
provides the court with certain powers and options:
 Plaintiff’s Release from Liabilities: The court has the authority to release the plaintiff from
all liabilities at the first hearing. Consequently, the court may grant the plaintiff their costs and
dismiss the case. This means that if the court determines that the plaintiff has no further role
or responsibility in the matter, they can be discharged from the suit.
 Retention of Parties: However, if the court believes that it is necessary for the sake of
justice, propriety, or convenience to retain all parties to the suit, the plaintiff may not be
discharged until the suit reaches its final resolution. This discretion allows the court to
determine whether it is appropriate to release the plaintiff or to keep them involved in the
proceedings.
 Framing and Trying Other Issues: If the court deems it suitable, it may also order that
additional issues be framed and tried concurrently with the suit. Furthermore, the court may
allow any complainant (i.e., the defendant in the interpleader suit) to be made a plaintiff,
either in place of or in addition to the original plaintiff, if deemed necessary.

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Procedure for Filing Interpleader Suit
The procedure for interpleader suits is governed by Order 35, Rules 1 to 4 of the Code of Civil
Procedure, 1908. Here is a summary of these rules and two landmark cases related to interpleader
suits:
Rule 1: In every interpleader suit, the plaintiff must include the following statements in the plaint:
 The plaintiff claims no interest in the subject matter in dispute except for the charges and
costs.
 The claims have been made by the defendants separately.
 There is no collusion between the plaintiff and any of the defendants.
The court may also order the plaintiff to deposit the disputed amount or place the property in the
custody of the court, providing the plaintiff with a charge on the thing claimed to cover the costs
incurred.

Rule 4: According to this rule, the court has the authority to declare that the plaintiff is discharged
from all liability, award them costs and dismiss them from the suit at the first hearing. Based on the
available evidence, the court may also adjudicate the title to the property in dispute. If adjudication
is not feasible, the court may direct that issues be framed and tried between the parties and one of
the claimants may be made a plaintiff either instead of or in addition to the original plaintiff. The suit
then proceeds in an ordinary manner.

Landmark Cases on Interpleader Suit

Neeraj Sharma v. The District Sangrur Khadi Gram
In this case, the Punjab and Haryana High Court clarified that agents and tenants are not allowed to
file interpleader suits against their principals and landlords, as per Order XXXV Rule 5 of the Code
of Civil Procedure, 1908. A tenant cannot sue their landlord when the dispute does not involve
parties who have claimed through the landlord. Interpleader suits are intended to resolve claims
made through the person initiating the suit. If someone is claiming a right and interest in the
property without reference to the landlord and demanding rent, such claims are not maintainable.

Hanumanth Vajhula Jagannadha v. Vajhula Annapurna Rajesswaramma

This case deals with excess execution questions, where property not covered by the decree is
delivered in execution of the decree. The court clarified that in such situations, an appeal under
Section 47 of the Code of Civil Procedure is the appropriate recourse for the judgment debtor to
recover the property that was delivered in excess of the decree. It emphasises that a separate
action is not necessary in such cases.

Conclusion
Section 88 and Order XXXV of the Code of Civil Procedure, 1908 deals with interpleader suit.
These provisions serve to safeguard individuals who act in good faith from facing condemnation due
to their non-fulfillment of certain duties, particularly in cases where they have no vested interest in
property or where they are the complainants seeking resolution of disputes over property or debt.
By providing protection for a person’s right to legal costs in such scenarios and by facilitating the
determination of rightful claims, interpleader suit help ensure fairness and justice in civil
proceedings. However, in cases where these rights are not adequately protected or are ignored by
the courts, individuals can resort to an appeal process as outlined under Order XLIII Rule 1 of the
Code of Civil Procedure, 1908.

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Special Case (XXXIV)
A "special case" means a situation where both parties agree on the facts but are in doubt regarding
the legal effect of those [Link] of filing a normal suit with pleadings, evidence, and trial, they
directly state the agreed facts in writing and request the court to give its decision.

Conditions
The parties must agree in writing to state the facts of the [Link] written statement must be signed
by both parties. The case must clearly set out the questions of law or fact on which the court’s
opinion is sought.
1. Power to state case for Court’s opinion
o If two or more parties have a question of fact or law and want the Court’s opinion on it,
they can make a written agreement.
o In this agreement, they must also mention what will happen depending on the Court’s
decision, for example:
(a) One party will pay a fixed sum of money (or a sum decided by the Court) to the
other, or
(b) One party will give some specified property (movable or immovable) to the other,
or
(c) One or more parties will do (or will not do) a particular act mentioned in the
agreement.
o The case must be written in numbered paragraphs, clearly stating the necessary facts
and documents, so the Court can decide the question properly.
2. Where value of subject-matter must be stated
o If the agreement is about delivery of property or doing (or not doing) a particular act,
the estimated value of that property or act must be written in the agreement.
3. Agreement to be filed and registered as a suit
o Such an agreement, if written according to these rules, can be filed in the Court that
has jurisdiction over a suit of the same value.
o Once filed, it will be registered as a suit. The party filing it will be treated as the
plaintiff and the other party as the defendant.
o Notice of the case will be given to all the parties involved.
4. Parties to be subject to Court’s jurisdiction
o Once the agreement is filed in Court, all parties to it come under the Court’s
jurisdiction and are bound by what they stated in the agreement.
5. Hearing and disposal of case
o The Court will hear the case just like an ordinary suit, and the general provisions of the
Code of Civil Procedure will apply.
o Before deciding, the Court will check:
(a) that the agreement was properly signed,
(b) that the parties genuinely have an interest in the matter, and
(c) that the case is fit for decision.
o If satisfied, the Court will pronounce judgment, and a decree will follow just like in any
other suit.

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 6. No appeal
o No appeal can be filed against the decree passed under Rule 5.

MODULE 4:
Receivers, Appeals and other procedures and Law of Limitation
4.1 Appointment of Receivers (Order XV)
Introduction
In civil litigation, particularly under Order 40 of the Civil Procedure Code (CPC), the concept of a
receiver plays a pivotal role in safeguarding disputed properties. A receiver is an independent and
impartial person appointed by the court to administer and manage the property in question, ensuring
its protection and preservation during the pendency of a suit.

The Definition of Receiver under the Civil Procedure Code

A receiver is essentially an officer of the court, appointed to take custody of a property involved in a
legal dispute. Their primary responsibility is to maintain the property, collect any income it generates
and ensure its value is preserved until the court reaches a final decision. For instance, in a property
dispute between individuals A and B, if the court deems it necessary, it may appoint a receiver to
manage the property, thereby preventing either party from misusing or damaging it.

Purpose of Appointing a Receiver

The primary purpose of appointing a receiver is to prevent any party in possession of the disputed
property from causing irreparable harm or exhausting its value. When a property is the subject of
litigation, it is important to maintain its status quo to ensure that the final judgment of the court is
meaningful and enforceable. A receiver provides interim protection, ensuring that the property
remains intact and its value is not diminished during the legal proceedings.

The Role and Responsibilities of a Receiver under the Civil Procedure Code
A receiver, as an officer of the court, acts as the court’s extended arm and hand. Their
responsibilities include:
1. Management of Property: The receiver takes custody of the disputed property or funds,
managing them until a final decree is issued or the parties reach a settlement.
2. Maintenance and Income Collection: They collect any income generated by the property,
such as rent and use it for the property’s upkeep. After deducting maintenance expenses, the
remaining income is submitted to the court.
3. Custodia Legis: The property or funds under the receiver’s control are considered to be in
the custody of the law, ensuring their protection and proper management.
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Criteria for Appointing a Receiver By the Court
The appointment of a receiver is a discretionary power vested in the court. However, this discretion
is not absolute and must be exercised judiciously. The court considers several principles before
appointing a receiver:
1. Protective Relief: The appointment is intended as a protective measure to safeguard the
disputed property.
2. Prima Facie Case: The plaintiff must demonstrate a strong prima facie case against the
defendant, indicating a high likelihood of success in the suit.
3. Irreparable Harm: There must be a significant risk of harm to the property if a receiver is not
appointed.
4. Equity and Conduct: The party requesting the appointment must come to the court
with clean hands, demonstrating fair conduct.

The Appointment of Receiver under the Civil Procedure Code

The power to appoint a receiver lies with the court before which the proceedings are pending. This
can be either the trial court or the appellate court, depending on the stage of the case. The court
exercises its discretion based on the principles of justice and convenience, ensuring that the
appointment is not arbitrary or unregulated.
Who Can Be Appointed as a Receiver?
A receiver must be an individual who is independent, impartial and entirely disinterested in the
property involved in the dispute. The fundamental criteria for appointment are based on the person’s
neutrality and lack of any stake in the disputed property. This ensures that the receiver’s actions are
unbiased and solely aimed at preserving the property.

Typically, the court avoids appointing parties directly involved in the suit as receivers. However, in
extraordinary circumstances, a party to the suit may be appointed as a receiver if deemed
appropriate by the court.

When Can a Receiver Be Appointed?

The court has the discretion to appoint a receiver at any stage if it believes that neither party should
hold the disputed property. This can occur before or after a decree has been issued. The court has
the authority to remove any individual from possession or custody of the property and place it under
the management of the appointed receiver.
Under Section 94(d) of the Civil Procedure Code, a receiver can be appointed to prevent the ends
of justice from being defeated. Additionally, Section 51(d) grants the court power to appoint a
receiver for the execution of a decree. Special acts, such as Section 84 of the Companies Act,
2013 and Section 69A of the Transfer of Property Act, 1882, also provide for the appointment of
receivers by the court.

The Process of Appointment of a Receiver under the Civil Procedure Code

The process for appointing a receiver is outlined in the court rules, which vary by jurisdiction. The
high courts possess the authority to formulate rules for overseeing and controlling subordinate
courts. For instance, Chapter XIX of the Delhi High Court (Original Side) Rules, 1967, delineates the
following procedure:

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 1. Application: The application for appointment must be made in writing and supported by an
affidavit.
2. Security: If the receiver is not the official receiver, they must provide security.
3. Personal Bonds: The receiver must furnish personal bonds with the required surety, which
must satisfy the registrar. The personal bond should be double the annual rental value or the
total value of the property to be administered.
4. Report Submission: Within a week of the appointment, the receiver must submit a report
detailing the property, including an inventory or books of accounts.
5. Investment Directions: The registrar will provide directions on where to invest the money
received from the property, usually in scheduled banks or government bonds.

Powers of the Receiver under the Civil Procedure Code

Order 40, Rule 1(d) of the CPC outlines the powers of a receiver, including:
1. Collection of Rents and Profits: The receiver is authorised to collect rents and profits
arising from the property.
2. Application and Disposal of Rents and Profits: They can apply and dispose of these rents
and profits.
3. Execution of Documents: The receiver has the power to execute documents as if they were
the owner.
4. Legal Actions: They can institute and defend suits related to the property.
5. Additional Powers: The court may grant additional powers as deemed necessary.
The receiver enjoys indirect powers as an extension of the court. For example, interference with the
receiver’s possession can be treated as contempt of court. Additionally, property in the hands of the
receiver cannot be attached without the court’s permission.

Duties of the Receiver under the Civil Procedure Code

Order 40, Rule 3 of the CPC stipulates the duties of a receiver, which include:
1. Furnishing Security: The receiver must provide security to account for the income received
from the property.
2. Submitting Accounts: They must submit half-yearly accounts as directed by the court,
detailing income received and expenses incurred for the property’s maintenance.
3. Paying Amounts Due: The receiver is responsible for paying any amounts due to the court.
4. Preventing Value Reduction: The receiver must prevent any reduction in the property’s
value due to willful negligence.
5. Personal Discharge of Duties: The receiver must personally discharge their duties without
delegating or assigning their responsibilities.
Failure to fulfill these duties can result in the court taking action against the receiver, holding them
personally liable for any losses incurred due to negligence or failure to protect and preserve the
property.

Liabilities of the Receiver under the Civil Procedure Code

Order 40, Rule 4 of the CPC outlines the liabilities of a receiver, which arise if they fail to:
1. Submit Reports: Failure to submit the specified reports.
2. Pay Due Amounts: Failure to pay amounts due as directed by the court.
3. Prevent Property Loss: Causing loss to the property due to gross negligence.
4. Perform Directed Duties: Failing to perform any other court-directed duties.

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In such cases, the court may order the attachment of the receiver’s property to recover losses
caused by willful default or negligence. The proceeds from the sale of the receiver’s property will be
used to cover the losses, with any remaining balance paid to the receiver.

Remuneration of a Receiver under the Civil Procedure Code

Receivers are entitled to remuneration for their services, as fixed by the court. This compensation
covers the receiver’s efforts and any expenses incurred in maintaining the property. Order 40, Rule
2 allows the court to fix the remuneration for the receiver’s services through general or specific
orders.
For example, the Delhi High Court (Original Side) Rules, 1967, provide a detailed schedule for
receiver remuneration:
1. First Rs. 10,000: 5%
2. Above Rs. 10,000 up to Rs. 20,000: 3%
3. Above Rs. 20,000 up to Rs. 50,000: 2%
4. Above Rs. 50,000 up to Rs. 1,00,000: 1%
5. Above Rs. 1,00,000: 0.5%
Additionally, for taking custody of money or government securities, receivers are entitled to 1% of
the estimated value. If no specific remuneration is specified, the receiver can apply to the court for
reasonable compensation.

Appointment of a Collector as Receiver under the Civil Procedure Code

According to Order 40, Rule 5, a collector can be appointed as a receiver if the property generates
revenue for the government. The court may appoint a collector as a receiver, with their consent, if it
believes that the collector’s management will promote the interests of those concerned.

Powers and duties of receiver

Powers of receiver
The following powers can be conferred upon the receiver by the court according to Rule 1(d) of
Order XL of the Code:
 To bring and defend suits related to such property for whom the receiver has been
appointed.
 To realise and manage such property.
 To protect, preserve, and improve such property.
 To collect rents and profits arising from such a property.
 To present application and disposal of such rents and profits.
 To apply for the execution of documents with respect to such a property as the owner
himself.

However, it is important to note that a receiver is appointed by the court and is an officer of the
court. Thus, he is under obligation to perform. duties and exercise only those powers as imposed by
the court. The Court can also limit his powers when it is reasonable to do so, in the case of Krishna
Kumar Khemka vs. Grindlays Bank PLC. and Ors (1997), the court held that a receiver can neither
sue nor be sued without permission of the court, and if any such suit is filed against the receiver
without permission of the court, it would be dismissed. The court in the case of Prabodh Nath Shan
vs. 581 (1999) held that the powers of the receiver given under Order XL ere not exhaustive and

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more powers can be conferred upon the receiver. Further, in the case of The industrial Credit &
Investment va Kamataka Ball Bearing Corporation Ltd. (1999), the court held that the receiver can
be given the power to sell the property for which he has been appointed, in extreme cases as a
residuary power.

Duties of receiver
According to Rule 3 of Order XL of the Code, the duties of a receiver are
 Furnish security in order to account for what he will receive from the property for which he
has been appointed as a receiver
 Submit proper accounts at periods prescribed by the court.
 Payment of the amount due to him as directed by the court.
 To be responsible for any loss caused to the property due to his negligence or wilful default.

Liabilities of a receiver
According to Order 40 rule (4), when a receiver fails:
 To submit the reports as specified by the court,
 To pay the amount due from him as directed by the court,
 Causes loss to the property due to gross negligence,
 Any other duty that court directed him to do.
The court may order the attachment of property of the receiver to recover the loss caused due to his
willful default or negligence. The court, after recovering all the losses from the proceeds received
after selling the receiver's property, will pay the balance (if any) to the receiver.

The receiver is bound to keep down the expenses and take care of the property in his possession
as a prudent man would observe in connection with his own property under similar circumstances.

Conclusion
The role of a receiver under the Civil Procedure Code is important in ensuring the protection and
preservation of disputed properties during litigation. By appointing a receiver, the court aims to
maintain the status quo and prevent any party from causing irreparable harm to the property.
This mechanism serves as a vital interim relief, ensuring that the final decree of the court is
enforceable and meaningful. The principles and processes governing the appointment of a receiver
reflect the court’s commitment to equity, justice and the protection of legal rights.

4.2 Appeals, reference, review, revision (Order XLI -XLVII)

Appeals
Introduction
An appeal in CPC serves as a vital avenue for seeking redress and ensuring justice. When parties
involved in a court proceeding are discontented with the judgment, they can turn to the higher courts
for a fresh evaluation of their case.
This process empowers individuals to present compelling arguments and challenge the lower
court’s decision on legal or factual grounds.

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Meaning of Appeal in CPC
The concept of ‘appeal’ is not explicitly defined in the CPC (Code of Civil Procedure). According to
the Black’s Law Dictionary, ‘appeal’ is the formal complaint made to a higher court to rectify an
injustice or error committed by a lower court.
The Superior Court, to which the appeal is made, reviews and retrials the case, effectively
transferring it from a court of lower jurisdiction to one with greater authority.

Essentials of Appeals
An appeal under CPC is a legal process in which a higher forum reviews the decision of a lower
forum on both legal and factual grounds. The higher forum has the jurisdiction to either uphold,
reverse, modify the decision, or send the case back to the lower forum for a fresh decision, following
the directions given by the higher forum. The three essential elements of appealing cases can be
summarised as follows:
 A decree issued by a judicial or administrative authority.
 An aggrieved individual who may not have been a party to the original proceeding.
 A reviewing body was established specifically to handle such appeals in CPC.

Right to Appeal
The right to appeal is both statutory and substantive. It is a statutory right because it must be
specifically granted by a statute and establish the appellate machinery. Unlike the inherent right to
institute a lawsuit, the right to appeal is provided by law. Additionally, the right to appeal is
substantive, meaning that it must be exercised prospectively unless the statute states otherwise.
However, parties may waive this right through an agreement, and accepting benefits under
a decree may stop a party from challenging its validity. It’s important to note that the right to appeal
is determined based on the law as it exists at the time of the original suit.

One Right to Appeal in CPC

There is usually one right to appeal, as stated in Section 96 of the CPC. This allows an aggrieved
party to appeal a decree passed by a court exercising its original jurisdiction to a higher authority
designated for this purpose. Exceptions to this single right of appeal are outlined in Sections 97, 98,
and 102 of the CPC, which specify certain conditions under which no further appeal is permitted.

No Right to Appeal under CPC

In general, a person who is not a party to the suit does not have the right to appeal unless they
obtain special leave from the Court. The crucial factor to consider when determining one’s right to
appeal is whether the person is adversely affected by the decision or the suit, and this is a matter of
fact that must be evaluated on a case-by-case basis.
Who Can File an Appeal?
The right to appeal in CPC is available to specific categories of individuals:
 Any party to the original proceeding or their legal representatives.
 Any person claiming under such a party or a transferee of interests from such a party.
 Any person appointed by the Court as the legal guardian of a minor.
 Any other aggrieved person, with the Court’s permission.
The general rule is that only a party to a suit who has been adversely affected by the decree or their
representatives can file an appeal in CPC. However, with the Court’s leave, a person not originally
involved in the case may also appeal if they are bound by the decree, aggrieved by it, or maliciously

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influenced by it. To determine if a party is aggrieved, it must be shown that the judgment has
unjustly affected their rights, whether financially or otherwise. A judgment cannot be said to
adversely impact a party unless it acts as res judicata against them in future litigation. The content
of the judgment and decree, rather than the form, should be evaluated to determine if it will have
this effect.
Section 96(2) outlines remedies available to a defendant against whom an ex parte order is passed.
They can either file an appeal under CPC against the decree or file a motion to set aside the ex
parte decree. These remedies can be pursued concurrently and do not hinder each other.

However, Section 96(3) specifies that a consent decree cannot be appealed against. This provision
is based on the principle of estoppel, assuming that parties to a suit may, through a lawful
agreement, settlement, or behaviour, relinquish their right to appeal. In a consent decree, both
parties have willingly given up their right to appeal in CPC as part of the agreement.

Who may appeal?

 A regular first appeal may be preferred by one of the following
 Any party to the suit adversely affected by a decree, or if such party is dead, by his legal
representatives under Section 146,
 A transferee of the interest of such party, who so far as such interest is concemed, is bound
by the decree, provided his name is entered on the record of the suit
 An auction purchaser may appeal against an order in execution setting aside the sale on the
ground of fraud;
 No other person, unless he is a party to the suit, is entitled to appealunder Section 96
 A person, who is not a party to the suit, may prefer an appeal from a decree/order if he's
bound/aggrieved/prejudicially affected by it via special leave of the appellate Court

Who Cannot File an Appeal in CPC?

To summarise the situations in which parties may not have the right to appeal:
 A party that has explicitly and unambiguously given up its right to appeal as per an
arrangement or agreement.
 A party that has received benefits from a decree and has implicitly accepted its terms.
 A consent decree binds parties, as they have willingly agreed to its terms.
 Parties whose evidence or compromises were not presented or expressed during the
dispute.
 Parties involved in trivial instances where the matter is not significant enough to warrant an
appeal in CPC.
Furthermore, legal representatives are not allowed to file an appeal under CPC on behalf of a
deceased individual. Once a party passes away, their right to appeal also ceases to exist.

Characteristics of An Appeal
The right to appeal is not automatically assumed and must be explicitly provided for in the statute. It
differs from the rights associated with filing cases, as it is a substantive right rather than a
procedural one. These rights arise from the moment the suit is instituted. Once granted, these
privileges cannot be invalidated unless a statute expressly or implicitly allows for such invalidation.
The appellate authority has the final and conclusive discretion in matters related to appeals.

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The appeal against a dead person
A person who has unknowingly filed an appeal against a person who was dead at the time of its
presentation shall have a remedy of filing an appeal afresh against the legal heirs of such deceased
in compliance of the Limitation Act

Forms of appeal
Appeals may be broadly classified in to two kinds
 First appeal and
 Second appeal
The sub-categones under appeals are
 Appeal from original decree,
 Appeal from order,
 Appeal from appellate decree/second appeal/to High Court,
 Appeal to the Supreme Court.

Forum of appeal
It is the amount/value of the subject matter of the suit which determines the forum in which the suit
is to be filed, and the forum of appeal The first appeal lies to the District Court if the value of the
subject matter of the suit is below Rs 2,00,000; and to the High Court in all other cases.

Condonation of Delay
The Amendment Act of 1976 introduced Rule 3A, which states that if an appeal is filed after the
prescribed limitation period expires, the appellant must submit a statement explaining the
reasonable grounds for the delay in filing the appeal. The purpose of this rule is twofold: firstly, to
inform the appellant that the delayed appeal in CPC may not be accepted until the Court considers
the application justifying the delay, and secondly, to alert the respondent that the appellant may not
be immediately prepared to argue on the merits of the case, as the Court needs to address the
application for condonation of the delay as a preliminary matter. However, it is essential to note that
this clause is considered a directory and not mandatory.

Stay of Proceedings
Rules 5 to 8 deal with the provision for a stay of execution of a decree or order during the appeal
process. Rule 5 allows the appellate Court to order a stay of proceedings under the decree or the
enforcement of the decree once an appeal under CPC has been filed. However, it’s important to
note that the mere filing of an appeal does not automatically suspend the implementation of the
decree.
The purpose of Rule 5 is to protect the interests of both the party who obtained the decree and the
party against whom the decree was passed. For the Court to grant a stay, the following conditions
must be met:
 The application for a stay must be filed without any undue delay.
 The party seeking the stay must demonstrate that they would suffer significant harm if the
order is not granted.
 The applicant must provide adequate security to ensure the due performance of the decree
or order in case the appeal is unsuccessful.

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If these conditions are satisfied, the Court may also issue an ex parte order for a stay of execution
pending the hearing of the appeal without requiring the other party’s presence. This allows for
immediate protection of the appellant’s interests while the Court considers the matter further.

Summary Dismissal
Rule 11 pertains to the trial court’s authority to summarily dismiss an appeal in CPC. This process
occurs after the appellant has submitted the memorandum of appeal and the appeal has been filed
in accordance with Rule 9. Rule 11 enforces the fundamental principle that the appeal court has the
right to dismiss an appeal without a full hearing if it finds that it lacks merit after hearing the
appellant or their counsel.
However, this discretionary power should be exercised judiciously and not in an arbitrary manner.
The Court should use this control only in exceptional circumstances and with restraint. In other
words, the summary dismissal of an appeal should be rare and sparingly applied.
The purpose of Rule 11 is to allow the appeal court to swiftly dispose of frivolous or meritless
appeals, thus preventing unnecessary delays and ensuring that the Court’s resources are used
efficiently. However, this authority should not be misused, and the Court must be cautious not to
deny legitimate appeals that may require a full hearing for proper adjudication.

Doctrine of Merger
The concept of the merger theory is rooted in the principle that there should not be multiple
operative decrees governing the same subject matter simultaneously. As a result, when an appeal
is adjudicated by an appellate court, the decree of the trial court no longer remains effective under
the provisions of the statute.
Instead, it is replaced by the decree passed by the appellate Court, and the decree of the trial court
effectively combines or “merges” with the decree of the appellate Court.

Cross Objections
According to Order 41, R22(1) 433, cross-objections can be made by the defendants. They're
necessary only when some directions are issued against them that are to be challenged on the
basis of which part relief has been granted to the plaintiff even without such cross objections.

It is important to note that cross-objections cannot be filed if the appellant has filed no appeal or if
an appeal has been filed but has not been accepted by the Court. In such cases, the respondent
cannot raise objections through cross-objections.

Powers of Appellate Court under CPC

The appellate Court is granted several powers under Section 107 and the corresponding rules of
Order 41 of the Code of Civil Procedure:

Power to decide a case finally (Section 107(l)(a) and Rule 24)

When the evidence on record is sufficient, the appellate Court can make a final decision on the
case, even if the judgment of the lower Court was based on different grounds.

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Power of remand (Section 107(1)(b) and Rule 23)
If the trial court decides the case on a preliminary point without considering other issues, and the
appellate Court reverses that decree, it can remand the case back to the trial court to decide the
remaining issues and reach a decision.

Power to frame issues and refer them for trial (Section 107(1)(c), Rules 25 and 26)
If the trial court fails to frame an issue or overlooks a crucial factual question, the appellate Court
can frame those issues and refer them for trial to the lower Court. The lower Court is directed to
take the additional evidence required to properly determine the case.

Power to take additional evidence (Section 107(1)(d), Rules 27-29)

Generally, the appellate Court decides the appeal in CPC based on the evidence presented during
the original trial. However, the Court may admit additional evidence if the party requesting it
demonstrates that this evidence was not available during the initial trial despite their best efforts.
The other party must have an opportunity to challenge the additional evidence, which should be
relevant to the issues under consideration.

Power to modify the decree (Rule 33)

The appellate Court is empowered to grant or refuse relief to the appellant and provide suitable
relief to the respondents as necessary. The Court can make any decision it deems appropriate, not
just between the appellant and the respondent but also between two respondents.
These powers enable the appellate Court to ensure fair and just adjudication of the case based on
the evidence and merits presented before it.

First Appeal in CPC

According to Section 96 of the CPC, a regular first appeal can be filed against a decree passed by
any Court exercising original jurisdiction, except when expressly prohibited. Analysing Sections
2(2), 2(9), and 96 of the CPC together, it becomes evident that a first appeal may or may not be
maintainable in certain adjudications.

Second Appeal in Civil Procedure Code

Section 100 of the CPC provides for a second appeal under this code. It stipulates that an appeal
may be filed to the High Court from a decree passed in the first appeal by a subordinate Court,
except where contrary provisions exist. However, the jurisdiction exercised under this section is
limited to substantial questions of law framed either at the time of admission of the appeal or
subsequently.

Conversion of an Appeal into Revision

In the case of Bahori v. Vidya Ram, it was established that since there is no specific provision
under the CPC for the conversion of an appeal into a revision or vice versa, the Court can only
exercise its power under Section 151. Though discretionary, the Court’s inherent powers allow it to
issue orders necessary to meet the ends of justice. The only prerequisite for such conversion is that
proper procedures are followed during the filing of the original appeal or revision under the Civil
Procedure Code.

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 Distinction Appeal Revision

Lies to a Superior Court from an original Available to High Court only in

Jurisdiction
decree unless expressly barred. cases where no appeal lies.

Purely discretionary power, no right

Nature of Right Substantive right conferred by statute.
of revision.

Initiation of Exerciseable through a memorandum of Can be exercised suo motu by the

Jurisdiction appeal filed by the aggrieved party. revisional court.

Grounds for Maintainable on the ground of

Maintainable on legal grants and question of fact.
Application jurisdictional error.

Revision may not abate, and the

Appeal abates if legal representatives are not
Abatement High Court can bring proper parties
brought on record within the allowed time.
at any time.

High Court/revisional court cannot s

Court of appeal can set aside findings of facts
Set Aside Findings findings of facts of subordinate
of subordinate Courts.
Courts.

Appeals from Orders of the Tribunal

When parties involved in proceedings are dissatisfied with the orders or conclusions of the tribunal,
they have the option to submit an appeal to the National Company Law Appellate Tribunal (NCLAT).
The Company Act, 2013, in Section 421, elaborates on the process as follows:
 Either one or both parties aggrieved by an order of the tribunal may file an appeal under CPC
with the appellate tribunal.
 An appeal cannot be filed with the tribunal without the consent of both parties.
 The appeal must be filed with the NCLAT within forty-five days of the tribunal’s order, in the
prescribed form, and accompanied by the required fees.
 In exceptional circumstances, if the tribunal is convinced that there is sufficient cause for not
filing the appeal within the forty-five-day period, it may allow the appeal to be filed beyond
this period, but it cannot extend beyond the forty-five days limit.
 After giving both parties a reasonable opportunity to be heard, the tribunal may pass
appropriate orders.
 The tribunal has the authority to either confirm, modify, or set aside the order being appealed
against.
 The appellate authority is responsible for sending a copy of the order to the tribunal and the
parties involved in the appeal in CPC.

Appeals By Indigent Persons

If a person is unable to pay the required fee for filing a memorandum of appeal Civil Procedure
Code, they have the option to file an appeal as an indigent person. However, the Court has the
discretion to reject such an application and may direct the applicant to pay the necessary court fee
within a specified time.

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Appeals To The Supreme Court
Appeals to India’s highest jurisdictional body, the Supreme Court, can be made under two
circumstances. Firstly, when the lower Court considers the case appropriate for an appeal to the
Supreme Court, and secondly, when the Supreme Court grants special leave for the appeal Civil
Procedure Code. A petition must be submitted to the Court that issued the decree to file an appeal
under CPC. The petition will be heard and disposed of within sixty days. It should state the grounds
of appeal and include a request for a certificate declaring that the case involves a substantial
question of law that requires the Supreme Court’s decision.
The opposite party will have an opportunity to raise objections to the issuance of such a certificate.
The petition will be disposed of if the certificate is denied. If the certificate is granted, the appellant
must deposit the required security and costs within a specified period. After fulfilling these
obligations, the Court from whose decision the appeal in CPC is made will declare the appeal as
admitted and notify the respondent accordingly. The jurisdictional body will then provide a sealed
copy of the record and furnish copies of the relevant papers in the suit.

Conclusion
An appeal in CPC is a legal process through which a party dissatisfied with a court’s decision seeks
a review and reconsideration of the judgment by a higher court. It allows parties to challenge the
lower court’s ruling on specific legal or factual grounds and present arguments for a different
outcome.

Reference
Introduction
Reference under CPC holds paramount importance by serving as a legal avenue for subordinate
courts to seek the High Court’s guidance on complex legal questions during ongoing cases.
This process ensures the correct interpretation of the law, preventing errors and enhancing legal
clarity. By allowing lower courts to refer specific legal issues to higher authorities, the CPC
promotes fair and informed judgments.
The High Court’s opinion, obtained through a reference in CPC, contributes to the resolution of legal
uncertainties, upholding the integrity of the judicial process and fostering consistency in legal
decision-making throughout the legal system.

Definition of Reference under CPC

The concept of reference in CPC occurs when a lower court seeks guidance from the High Court on
a legal matter. This typically happens when the lower court encounters reasonable doubt regarding
a legal question during a civil suit, appeal or execution proceeding. In simple terms, a reference
involves asking the High Court for its opinion on a legal issue.

Section 113 of the Civil Procedure Code

Section 113 grants authority to a lower court to present a case to the High Court and request its
opinion. Such a request is made when the lower court harbours uncertainty about a legal question.
It’s important to note that parties involved in the civil suit do not have the right to request a
reference; only the lower court possesses the ability to initiate it on its own. The reference is

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exclusive to questions of law and the judge presiding over the case must genuinely doubt the legal
aspect in question.

Objectives of Reference in CPC

The main purpose of reference under CPC is to enable lower courts to seek the High Court’s
opinion in non-appealable cases, ensuring clarity on legal matters and preventing irreversible errors.
The provision also serves to guarantee that the highest court in the state interprets and decides the
validity of legislative provisions (Acts, Ordinances or regulations).
Importantly, the reference in CPC should be made before the lower court passes its judgment to
ensure a proper legal understanding.

Conditions for Reference under CPC

The process of making a reference to the High Court, as outlined in Order 46 of the Civil Procedure
Code, involves certain conditions that the subordinate court must meet. Here are the key conditions:
 The suit or appeal must be actively underway in the court at the time of making the reference
and no further appeal from the court’s order or decree should be pending.
 The question regarding the validity of a legal provision must have arisen during the
proceedings of the suit in the court.
 The court must be actively handling the suit when the doubt about the validity of the legal
provision emerges.
 During the reference under CPC, the district court has the authority to either stay the case or
issue a contingent order. After considering the High Court’s opinion, the subordinate court
may then proceed to pass a final order or decree.

Types of Questions for Reference in CPC

There are two categories of legal questions that may lead to doubts in the subordinate court:
 Questions related to the validity of Acts, Ordinances or Regulations.
 Other legal questions.
Under the first category, reference in CPC is mandatory if the following conditions are met:
a. The decision on the question is essential for resolving the case.
b. The subordinate court believes that the Act, Ordinance or regulation is beyond its legal authority.
c. There is no previous determination by the Supreme Court or the relevant High Court on the vires
of the Act.

Who Can Apply for Reference under CPC?

The court of civil judicature has the authority to refer a case to the High Court either based on a
party’s application or suo moto (on its own initiative). It’s important to note that a tribunal does not
have the power to make a reference, as established in the case of Ramakant Bindal v. State of
U.P.

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Powers and Duties of the Referring Court
A reference can be made in suit, appeal or execution proceeding pending before the court only
when there is a doubt of law. As held in the case of Banarasi Yadav v. Krishna Chandra it was held
that the question of law about which the subordinate court is doubtful, must have actually been
called upon in the case for adjudication and it shouldn't be a hypothetical [Link], no
reference can be made on a hypothetical question or a point that may or may not arise in future.
But, if the situation arises it may be considered for reference.

Power and Duty of the High Court

The High has consultative jurisdiction in this context. When reference is sought from the High Court
and while dealing it the High Court is not bound to decide only the question of law in doubt. As held
in the case of S.K. Roy v. Board of Revenue, the High Court can consider the new aspects of law
also if any new aspect arises.

To answer the question for which reference is sought totally upon the discretion of the High Court as
discussed under Order 46 of the Code. The High Court may answer the question and send the case
back to the referring court to dispose of it in accordance with the law. It is also upon the discretion of
the High Court to refuse to answer the question and it has even power to quash it.

Effects of Reference under CPC

Impact on Decree: In the case of L.S Sherlekar v. D.L. Agarwal, it was established that if the High
Court answers the question in favour of the plaintiff, the decree is confirmed. Conversely, if the High
Court’s response is unfavorable, the suit is dismissed.
Decision Transmission: Rule 3 of Order 46 stipulates that after hearing the parties, if the High
Court desires, it shall decide the referred points and send a copy of its judgment to the subordinate
court. The subordinate court then disposes of the case in accordance with the decisions outlined in
the judgment.

Procedure at Hearing
Rule 1: Statement and Formulation
The referring court, under Rule 1, is required to draft a statement outlining the facts of the case. It
should also formulate the specific legal question on which it seeks the High Court’s opinion and
provide its own opinion on the matter.

Rule 2: Stay or Contingent Decree

Rule 2 allows the referring court to take certain actions. It may choose to stay the proceedings or
issue a decree or order contingent upon the High Court’s decision on the referred point. Importantly,
this decree or order cannot be executed until the referring court receives a copy of the High Court’s
judgment on the reference.
Decree Confirmation or Dismissal
If the High Court favours the plaintiff’s position in its response, the decree will be confirmed.
Conversely, if the High Court’s response is unfavourable, the suit will be dismissed.

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Rule 3: High Court Decision Transmission
Rule 3 stipulates that after hearing the parties, if they wish to be heard, the High Court must decide
the referred point. Following this decision, the High Court must send a copy of its judgment to the
referring court, which will then dispose of the case in accordance with the High Court’s decision.

Rule 5: High Court’s Authority to Alter Decrees or Orders

According to Rule 5, the High Court has the authority to alter, cancel or set aside any decree or
order made by the referring court. The High Court can then issue any order it deems appropriate.
Cost
Rule 4: Costs of Reference under CPC
Under Rule 4, the cost of the reference in CPC is considered as part of the overall costs of the case.
Exception:
However, in the judgment of L.S. Sherlekar v. D.S. Agarwal (AIR 1968 Bom 439), it was
determined that if the reference is deemed altogether unwarranted, the High Court has the
discretion to direct the referring judge to personally bear the costs.

Conclusion
A reference under CPC occurs when a subordinate court seeks the High Court’s opinion on a legal
matter during a pending suit, appeal or execution proceeding. Governed by Order 46, the referring
court formulates a legal question, stays proceedings or issues a contingent order and sends the
question to the High Court.
After hearing parties, the High Court provides an opinion, confirming a decree if favourable or
dismissing the suit if not. The referring court then disposes of the case accordingly. The cost of
reference is typically part of the overall case costs unless the reference in CPC is deemed
unwarranted, leading to potential personal cost responsibility for the referring judge.

Review
Introduction
The Civil Procedure Code, 1908 (CPC) allows a person who is unhappy with a judgement or order
of a court to ask the same court to reconsider it through a process called review.
This procedure is limited, but it is very important because it helps ensure justice when a judgement
may have been based on a clear mistake or oversight.
In this article, we will explain the provisions of review under the CPC, the grounds on which it can
be filed, the procedure to follow, and the principles that guide the review process.

Right to Review under CPC

The right to review is given in Section 114, read with Order 47 of the CPC.
Normally, once a court gives a judgement, the matter is considered final and cannot be reopened.
This principle is called functus officio. However, review is an exception. It allows the same court to
correct serious mistakes to ensure justice.
A dissatisfied party may choose to file an appeal in a higher court, but review is different. A review
is done by the same court and is only allowed in special situations. It is not meant to allow the
parties to argue the case again.
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Section 114 – Who Can Apply for Review
Under Section 114, an aggrieved person may apply for review in the following situations:
1. When a decree or order is appealable but no appeal has been filed.
2. When a decree or order is not appealable.
3. When a decision has been given on a reference from a Court of Small Causes.
The application must always be filed in the same court that passed the decree or order. The court
has the discretion to accept or reject the application depending on the facts of the case.

Object of Review
The main purpose of review is to provide a remedy when the court has made an apparent mistake
in its judgement.
This may include:
 Misreading of facts.
 Misinterpretation of law.
 Overlooking important evidence.
 Clerical or typographical errors.
Review is not a chance to reargue the case or correct an unfavourable judgement. It is only for
correcting obvious mistakes that could otherwise lead to injustice.

Grounds for Review (Order 47, Rule 1)

1. Discovery of new and important evidence
A review can be sought if the party finds new and important evidence that was not available
at the time of the judgement. The evidence must be such that it could not have been
produced earlier despite proper effort.
Example: If crucial documents were genuinely unavailable during the trial, they may be
introduced through a review.
2. Error apparent on the face of the record
A review can be sought if there is a clear and obvious mistake in the judgement that does not
require long arguments to prove.
Example: A wrong calculation in the judgement or a wrong quotation of a law.
3. Any other sufficient reason
This covers other reasons similar to the above two, such as a complete misreading of
records or ignoring a vital part of the case.

Procedure for Review (Order 47)

1. Filing the application
The review application must be filed in the same court with clear grounds and supporting
evidence. An affidavit must be attached explaining the new evidence or error.
2. Notice to the opposite party
The opposite party must be informed before a review is granted, so that they get a chance to
present their side.
3. Hearing by the same judge
Ideally, the same judge or bench that passed the original judgement should hear the review,
since they already know the facts. If the judge is not available for more than six months,
another competent judge may hear it.

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 4. Rejection or acceptance
If the court finds no valid reason, it will reject the application. If valid reasons exist, the court
may rehear the matter or deal with it as it thinks fit.

Time Limits for Review

 In general, the time limit to file a review is 30 days from the date of the judgement or order.
 If the judgement was passed by a High Court, the time limit is 60 days.
 For death sentence cases, the time limit is 30 days.
 The court may allow a delay if the applicant shows a valid reason.

Bar on Further Review

Order 47, Rule 9 says that once a matter has been reviewed, no second review of the same order
or decree is allowed.
This prevents repeated review applications and ensures finality of decisions.

Review by the Supreme Court

Under Article 137 of the Constitution, the Supreme Court has the power to review its own
judgements. This ensures that even the highest court can correct its mistakes to prevent injustice.

Understanding the Right to Review under CPC

The right to review under the CPC is provided under Section 114, read with Order XLVII. The
review mechanism offers an exception to the principle of functus officio, which essentially means
that once a judgement is delivered, the matter is concluded and cannot be revisited. However, the
review process allows courts to rectify grave errors and ensure that justice is achieved.
While a party who is dissatisfied with a judgement may appeal to a higher court, the review allows
for a re-examination of the case in the same court. This remedy is granted under specific conditions
and is not intended to provide an opportunity to relitigate the case.

Section 114: The Right to Apply for Review

Under Section 114 of the CPC, a person aggrieved by a decree or order may apply for a review of
the judgement passed by the court. The section lays down the conditions under which the review
application can be made, as follows:
1. Decrees or Orders from Which an Appeal is Allowed, but No Appeal Has Been
Preferred: If a decree or order is appealable but no appeal has been filed, the aggrieved
party may apply for a review.
2. Decrees or Orders from Which No Appeal is Allowed: In cases where no appeal is
allowed, an application for review may still be made to the same court that passed the decree
or order.
3. Decisions on References from Courts of Small Causes: A decision made on a reference
from a Court of Small Causes can also be reviewed.
The application for review must be made to the same court that passed the decree or made the
order. The court, upon considering the application, has the discretion to grant or deny the review
based on the circumstances of the case.

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Discovery of New and Important Matter or Evidence
A party may seek a review if they discover new and important evidence that was not available to
them at the time the judgement was passed. The evidence must be such that it could not have been
produced despite due diligence at the time of the original proceedings.
Example: If crucial documents or evidence were inadvertently overlooked or were unavailable at
the time of the original trial, they can be introduced in the review petition.
Error Apparent on the Face of the Record

A review may be sought if there is an error apparent on the face of the record. This refers to
mistakes or oversights that are clear and obvious, without requiring further detailed examination or
legal argument.
Example: A miscalculation of numbers in the judgement or a misquotation of a statute may be an
error apparent on the face of the record.

Any Other Sufficient Reason

This ground covers other reasons that are analogous to the above two. For example, a total
misreading of records or overlooking a critical aspect of the case may also justify a review.
The term “sufficient reason” is open-ended but must be of the same nature as the first two
grounds—namely, it must be a clear mistake or oversight that could affect the fairness of the
judgement.

Landmark Case Laws on Review

1. Sow Chandra Kante v. Sheikh Habib (1975): The Supreme Court held that the review
process is not meant to provide a second innings for the losing party. The objective of
Section 114 is not to re-hear the case but to correct clear and obvious errors that are
apparent on the face of the record.
2. Northern India Caterers Ltd. v. Governor of Delhi (1980): The Supreme Court emphasised
that review proceedings are not to be equated with an appeal. A judgement will not be
reviewed merely because the losing party thinks it was wrongly decided. Only glaring
omissions or errors of law justify review.

Conclusion
The review process under the CPC is an important remedy to prevent injustice caused by errors in a
judgement. It allows the same court to correct its mistakes, but it cannot be used as an appeal or to
reopen the case.
The process is strictly regulated and allowed only in exceptional situations. This ensures that justice
is done while also protecting the principle of finality in litigation.

Revision
Introduction:
Civil Procedure Code, 1908 is a procedural law related to the administration of civil proceedings in
India. Section 115 of the Civil Procedure Code, 1908 provides the provisions on the Revision. It
empowers the High Court to look into the cases which have been decided by the subordinate

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courts. Hence, the High Court has revisional jurisdiction. In other words, the Higher courts exercise
the power of supervision on the lower courts. Section 115 limited to errors of jurisdiction only.

Meaning of Revision:
To revise means to check again or look again. Revision means to go through thoroughly with a
careful examination to correct the mistake. In other words, the court will revise the case and gives
correction wherever necessary. The High court has the power of revision with certain conditions.

Object:
1. The main object of the revision is to prevent the subordinate court from acting
arbitrarily or illegally.
2. To empower the High court to look at proceedings of the subordinate court are in
accordance with the law and acting within the jurisdiction of the court.
3. To correct the errors of jurisdiction done by the subordinate courts.
4. To ensure the aggrieved party that if the order passed against them is non-appealable
then it can be rectified by the High Court.

Nature and scope of Revision:

The High Court should satisfy itself on 3 Matters:
1. The order which is passed by the lower court is within the jurisdiction of that court.
2. The case is of such nature that the court is ought to exercise its jurisdiction.
3. That the subordinate court has acted legally, acted within the four corners of law and
acted without committing any error.
If the high court satisfies these three matters then it has no power to interfere. Where there is no
question of jurisdiction the decision cannot be corrected by the High Court. Hence, the question
must arise out of jurisdiction.

Who may file?

1. Application by aggrieved party – When the order passed by the subordinate court and the
party who is aggrieved by such order can apply for the revision in the High Court.
2. Suo moto – Under section 115 of the Civil Procedure Code, 1908 the High Court may exercise
suo moto action of revisional jurisdiction. In simple words, the High court may act of its own motion
call any record and accordingly pass the orders.

Grounds of revision under CPC

1. Court has decided the case:
In general Sense, the case must be decided by the court and should not be pending.
In case of Baldevdas Shivlal v. Filmistan Distributors India Pvt ltd, The Apex Court held that a
case may be said to have been decided if the court adjudicates for the purpose of the suit some
right or obligation of the parties in controversy. Every order in the suit cannot be regarded as case
decided within the meaning of Section 115 of the code.

2. Such court is subordinate court:

Unless the order is passed by a subordinate court, the High Court cannot exercise the power of
revisional jurisdiction. Therefore, it is necessary that the case should be decided by the subordinate
court. The subordinate courts sometimes known as inferior or lower courts. Here, the court means a

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court that has civil judicature. In general meaning, the subordinate court means all courts which are
subordinate to the High Court including the Small causes court.
Where it is provided that a matter should be decided by particular court, the presiding officer of such
court will act as a court. But where it is provided that a particular judge should decide a matter the
provisions of the statute will have to be considered for the purpose of determining whether the
judicial officer acts as a court or as a persona designate.

3. Non -Appealable order:

Where there are no appeal lies then the revisional jurisdiction invoked. In simple words, If there is
no first appeal or second appeal lies to the High Court then another option arises is revision. Here
the word appeal means 1st appeal as well as 2nd appeal. If the decision itself is not appealable to
the High Court then the revisional jurisdiction will be acted by the High Court.

4. Jurisdictional errors:
According to section 115 of Civil Procedure Code 1908, the Revision is only applicable to the
jurisdiction and if there is no question arises related to jurisdiction the decision cannot be corrected.
On the other hand, the question is of fact or law the revisional power is not competent.
a) Exercise of jurisdiction not vested by law –
Here, the assumption of the subordinate court is that it vested some powers but in reality, the
subordinate court does not have such powers and acted beyond its boundaries. In such cases, the
High Court is empowered to correct the decision given by the subordinate court.
e.g.
i. The wrong assumption by the lower court that it has jurisdiction
ii. Entertain an appeal which it has no jurisdiction
iii. Makes an order which it has no jurisdiction
iv. Grants injunction order without considering relevant facts

b) Failed to exercise jurisdiction vested in it –

If the subordinate court having power vested in it but not acting accordingly and declines to exercise
its duty or act then revisional power of the High Court takes place or High can interfere in such
case.
e.g.
 Refuse to give summons to deponent for cross examination
 Fails to execute the decree
 Reject the plaint, application etc.
 Rejection of counterclaim
c) Exercise of jurisdiction illegally or with material irregularities:
When the subordinate court does not act legally or acting arbitrarily, capriciously in the exercise of
their jurisdiction. In simple words when the court misuses its powers and in case of errors of
jurisdiction committed by the Subordinate Court, the revisional jurisdiction taken by the High Court.

Case laws:
1. Balkrishna Udayarvsvasudeva Aiyer
In this case it was held that, it will be observed that section applies to jurisdiction alone, the irregular
exercise or non-exercise of it, or the illegal assumption of it. Section 115 is not directed against the
conclusion of law or fact in which the question of jurisdiction is not involved.

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[Link] Chand v Kamalaksha
A revision also lies where a subordinate court has failed to exercise jurisdiction vested in it by law. A
court having jurisdiction to decide a matter, thinks erroneously under a misapprehension of law or
fact that it has no such jurisdiction and declines to exercise it, the High Court can interfere in
revision.

Conclusion:
It can be concluded that the cases which are decided by subordinate courts and there is no appeal
lies the aggrieved party Revision is competent. The High Court has the power of Revisional
jurisdiction if the subordinate court has acted arbitrarily or illegally. The Court can also exercise suo
moto action to correct the decision given by the subordinate court. Revisional powers can also be
exercised when there is a jurisdictional error by the subordinate courts. Hence, it can be said that
Section 115 acts as a remedy and gives justice.

Key Differences: Reference, Review, and Revision

While Reference, Review, and Revision may appear similar, they serve distinct purposes and are
invoked under different circumstances. The table below highlights the key differences:
Aspect Reference Review Revision

Aggrieved party or suo

Initiated By Subordinate court (suo motu) Aggrieved party
motu by the High Court

To clarify doubts on questions To correct errors in the To correct jurisdictional erro

Purpose
of law judgement or order subordinate courts

During the pendency of the After the judgement or order After the decision of the
When Applied
case is passed subordinate court

Legal question or validity of Factual or legal error on the

Nature of Error Jurisdictional error
legal provisions face of the record

Limitation No specific time limit 30 days from the decree or 90 days from the order or
Period mentioned order decree

4.3 Miscellaneous, Chartered HCs, Provincial and Presidency Small Causes

Courts (Orders XLVIII-LI)
Order XLVIII – Miscellaneous
1. Every process (like summons, notices, etc.) issued by the court will be served at the expense
of the party who asked for it, unless the court decides otherwise.
o The required court fee for this service must be paid within the time fixed by the court,
before the process is issued.
2. All orders, notices, and other documents that need to be given or served on any person
under this Code must be served in the same way as a summons.

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 3. The forms provided in the appendices of the CPC should be used, with necessary changes
according to the circumstances of each case.

Order XLIX – Chartered High Courts

1. In cases under the original civil jurisdiction of High Courts (including matrimonial,
testamentary, and intestate matters), notices to produce documents, summonses to
witnesses, and other judicial processes (except summons to defendants, writs of execution,
and notices to respondents) can be served by attorneys in the suits, their employees, or by
persons authorized by the High Court.
2. The existing rules of Chartered High Courts relating to taking of evidence, or recording of
judgments and orders, will not be affected by this Code.
3. The following CPC rules do not apply to Chartered High Courts when exercising their original
civil jurisdiction:
o Order VII, Rules 10 and 11(b) & (c)
o Order X, Rule 3
o Order XVI, Rule 2
o Order XVIII, Rules 5–16 (regarding how evidence is taken)
o Order XX, Rules 1–8
o Order XXXIII, Rule 7 (about memorandum)
o Also, Order XLI, Rule 35 will not apply to Chartered High Courts when exercising
appellate jurisdiction.

Order L – Provincial Small Cause Courts

1. The provisions of CPC will not apply to courts constituted under the Provincial Small Cause
Courts Act, 1887, the Berar Small Cause Courts Law, 1905, or to courts exercising similar
jurisdiction in areas where the Act does not extend.
Specifically, these provisions of CPC will not apply:
o Suits which a Small Cause Court cannot try, and decrees passed in such suits.
o Execution of decrees against immovable property or against a partner’s share in
partnership property.
o Settlement of issues.
The following rules and orders will also not apply:
o Order II, Rule 1 (frame of suit)
o Order X, Rule 3 (record of examination of parties)
o Order XV, except the part of Rule 4 which allows pronouncing judgment immediately.
o Order XVIII, Rules 5–12 (evidence)
o Orders XLI to XLV (appeals)
o Order XLVII, Rules 2, 3, 5, 6, 7 (review)
o Order LI

Order LI – Presidency Small Cause Courts

1. The CPC provisions generally do not apply to suits or proceedings in Small Cause Courts at
Calcutta, Madras, and Bombay, except for:
o Rules 22 and 23 of Order V,

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 o Rules 4 and 7 of Order XXI,
o Rule 4 of Order XXVI,
o and provisions of the Presidency Small Cause Courts Act, 1882.
In short:
 Order 48 → Who bears cost of processes & how notices are served.
 Order 49 → Special rules for Chartered High Courts.
 Order 50 → Exemptions for Provincial Small Cause Courts.
 Order 51 → Exemptions for Presidency Small Cause Courts.

4.4 Limitation Act, 1963

Introduction
Each jurisdiction establishes specific time limits within which a legal action must be initiated. These
are known as “limitation periods.” The rationale stems from two Latin principles: interest reipublicae
ut sit finis litium (it is in the public interest that litigation should end) and vigilantibus non
dormientibus jura subveniunt (the law assists those who are diligent in asserting their rights, not
those who remain idle).
If a claim is brought after the relevant limitation period has run, the court will ordinarily refuse to
entertain it. This encourages parties to pursue remedies promptly and prevents stale controversies
from lingering indefinitely.
In India, these deadlines are governed by the Limitation Act, 1963. Its primary aim is to ensure
disputes are resolved without undue delay, fostering legal certainty.

Historical Evolution of Limitation Law

 Pre-1859 Situation: Prior to 1859, there was no uniform limitation statute covering all of
British India. Instead, various local regulations applied in different regions. In the three
Presidencies, courts under the British East India Company followed bespoke rules, while the
Charter-established courts in the Presidency towns adopted English law. This patchwork led
to inconsistencies.
 Limitation Act of 1859 (Act XIV of 1859): Enacted to unify limitation rules across India, this
law took effect in 1862 and covered only the time frame for bringing suits. It did not address
“prescription” (i.e., acquisition or loss of rights through long-continued use). Its scope was
limited to setting deadlines for filing civil claims.
 Limitation Act of 1871: Replacing the 1859 enactment, the 1871 Act introduced
foundational principles for computing and excluding certain periods from the limitation clock.
The actual time limits for different causes of action were relegated to a table appended to the
statute.
 Limitation Act of 1877: Substituting the 1871 Act, the 1877 version made minor adjustments
to suit-types and their respective periods. It also broadened the law of prescription:

1. Property Rights: Whereas the 1871 Act applied prescription only to land or hereditary
offices, the 1877 Act extended it to all forms of movable and immovable property.

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 2. Easements & Profits-à-Prendre: The earlier Act provided that easements (e.g.,
rights of way) could accrue after 20 years of continuous use; the 1877 Act included
profits-à-prendre (rights to take resources from another’s land).
 Limitation Act of 1908: This repealed the 1877 legislation but largely retained its core
concepts. During the same era, the Indian Easements Act, 1882, came into force.
Consequently, the 1908 Limitation Act specifically stated that its easement-related provisions
would not apply in territories governed by the Easements Act.
 Limitation Act of 1963: Drafted by the Third Law Commission, it replaced the 1908 statute.
Notably, it extended coverage beyond foreign contracts to include contracts made in (then)
Jammu & Kashmir. Eventually, after the Jammu & Kashmir Reorganisation Act, 2019, the
Limitation Act applies uniformly throughout India.

Objectives and Scope of the Limitation Act, 1963

The Act’s primary purpose is to prevent legal matters from dragging on indefinitely and to
encourage prompt resolution. It establishes, for various suits, appeals, and applications, the
maximum time within which they must be filed. If a cause of action remains unpursued beyond that
period, the remedy is barred.
 Coverage:
o Civil suits
o Appeals and applications for leave to appeal
o Certain applications and petitions (e.g., for letters of administration)
 Structure:
o 32 Sections
o 137 Articles
o Divided into 10 Parts, including schedules that specify limitation periods

Retrospective Operation
Limitation statutes are generally procedural. Unless a statute explicitly provides otherwise, its rules
apply to all proceedings initiated after its enactment, even if the underlying cause of action arose
earlier. Key judicial pronouncements affirm this:
 B.K. Education Services Pvt. Ltd. vs. Parag Gupta & Associates (2018): The Supreme
Court held the Limitation Act to be procedural, applying retrospectively.
 Thirumalai Chemicals Ltd. vs. Union of India (2011): The Supreme Court observed that
limitation laws are procedural and apply to causes of action accrued before the Act’s
enactment.
 Excise & Taxation Commissioner vs. Frigoglass India Pvt. Ltd. (2019): The Punjab &
Haryana High Court reiterated that limitation statutes are procedural, thus having
retrospective effect unless a contrary intent is explicitly stated.

Key Definitions (Section 2)

1. Applicant:
o Any petitioner bringing a suit or appeal
o Anyone entitled to step into the petitioner’s shoes (e.g., assignee of a cause of action)
o Legal representatives (executor, administrator, etc.) of a deceased applicant
2. Application: Includes any petition or request to a court (e.g., application for leave to appeal)
3. Bill of Exchange: Extends to hundis and cheques
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 4. Bond: Any document where a party undertakes to pay a sum of money, possibly with
conditions that may discharge the obligation
5. Easement: A non-contractual right to use another’s land (e.g., right of way, watercourse)
6. Period of Limitation: The time prescribed in the Schedule for filing a suit, appeal, or
application. “Prescribed period” refers to the duration computed according to the Act’s rules.
7. Promissory Note: A written promise to pay a specified sum on demand or at a future date
8. Trustee: Excludes:
o A benamidar (i.e., someone holding nominal title)
o A mortgagee who remains in possession after the mortgage debt has been discharged
o Anyone wrongfully occupying property without title

What Is the Purpose of Limitation Act?

The purpose of Limitation Act, 1963 is to provide a period within which people can enforce their
rights to file suits, applications, and appeals in a Court of Law. Therefore, you will find different
periods to file lawsuits in the schedule of this Act. As a result, a country can avoid litigation from
being dragged unnecessarily for a long time. Also, it will ensure quick disposal of cases.

What Are the Salient Features of Limitation Act, 1963?

This law states that an aggrieved person is not allowed to pursue their claim or seek justice in a
court of law after the expiry of a specific period. The detailed salient features of Limitation Act 1963
are as follows:
 It is a procedural law unless someone manifests a contrary intention by expression or
necessary implication of the legislation itself. Not to mention procedural laws are
retrospective in nature. However, the operation of Limitation law is both retrospective and
prospective.
 This Act does not extinguish a citizen's right but only bars their remedy. In other words, it
only bars judicial remedy but does not take away your right.
 It falls under the subject matter of the concurrent list mentioned in entry 13, list III of the
Indian Constitution.
 The maximum period of limitation mentioned in this Act extends up to 30 years, while the
minimum ranges to only 10 days.
 A term mentioned in this Act says about case dismissal. If you submit applications,
appeals, and suits after its allotted time, a court can dismiss it even before someone
invokes it as a defence.
 A plaintiff must submit a reason for their inability to file an appeal, suit, or application within
a timeframe. If the court finds this reason satisfying, it may accept a lawsuit or appeal after
its deadline.
 A court treats a counterclaim as a separate suit. So, you must launch a suit as a
counterclaim within the same period.
 Suits concerning trusts, immovable property, and endowments have a limitation period of
only 12 years.
 Suits relating to declarations, contracts, claims of decrees or instruments, accounts, and
lawsuits of a moveable property have a limitation of 3 years.
 For cases concerning miscellaneous matters, torts and suits whose limitation period is not
present anywhere in this Act's schedule, a person should deal with it within 1 to 3 years.

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  This act excludes the time required to revise, review, and file or obtain a copy of the
decree, order, or appeal.
 Under this Act, landowners can enjoy uninterrupted usage of land for 20 years through an
easement.
 This Act will not apply to any applications filed after its specified time frame. Also, the date
from which the limitation period of an appeal, suit, or application will count is deemed
exempt.
 The Limitation Act says a person with authority who seeks a defendant's execution or who
submits a complaint but is not in the right mind or is a minor will be considered once both
disabilities cease.
To sum up, the Limitation Act, 1963 states a period within which citizens of India can file a suit,
appeal, petition, or application for the court to redress. As a result, a country can maintain fast
disposal of the case and quick action. To know about this Act, you can check these pointers
mentioned above.

Limitation of Suits, Appeals, and Applications

Section 3: Remedies for Limitation Bars
 Any suit, appeal, or application filed after the prescribed period is liable to be dismissed—
even if no one specifically raises the limitation defence.
 Filing Deemed To Occur When:
o The plaint (complaint) is presented to the proper court officer (in a regular suit).
o A pauper applicant (indigent litigant who seeks to proceed without paying court fees)
submits an application for leave to sue.
o In winding-up proceedings, a creditor files a claim with the official liquidator.
o For high-court applications (e.g., petitions for special leave to appeal), the moment the
petition is handed to the correct registry.
 Counterclaims & Set-offs (Section 3(2)(b)): If the defendant brings a counterclaim against
the plaintiff in the same suit, that counterclaim is treated as a separate suit but is deemed to
have been filed on the same date as the original pleadings.
 Judicial Clarifications:
o Punjab National Bank & Ors. vs. Surendra Prasad Sinha (1992): The Supreme Court
held limitation bars the remedy but not the underlying right.
o As 15/1996 vs. K.J. Anthony (2013): A defendant may still plead a limitation-barred
defence, though it may not ultimately be enforceable.
o Bombay Dyeing & Manufacturing Co. Ltd. vs. The State of Bombay (1957): Time-
barred debts remain intact; limitation only bars legal recourse.

Limitation Does Not Preclude Defence

 Even if a suit is barred by limitation, the defendant remains free to admit or pay a time-barred
debt.

Noteworthy Judgements:
 Rullia Ram Hakim Rai vs. S. Fateh Singh & Ors. (1961): Limitation bars the action, not the
defence; a debtor can discharge a stale claim.

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  Shrimant Shamrao Suryavanshi vs. Pralhad Bhairoba Suryavanshi (2002): Though a plaintiff
loses the ability to enforce a time-barred claim, the defendant can still present a stale
defence if they so choose.

Plea of Limitation: Court’s Obligation

 Section 3 is mandatory: the court must dismiss any proceeding barred by limitation—even if
the limitation point is not raised by any party.
 Verifications from Case Law:
o Craft Centre & Ors. vs. Koncherry Coir Factories (1990): The onus lies on the plaintiff
to show the suit is within time. If relying on an acknowledgment to save a suit from
being time-barred, the plaintiff must plead and prove the acknowledgment when
challenged. Section 3 admits no exceptions.
o ICICI Bank Ltd. vs. Trishla Apparels Pvt. Ltd. (2015): If a suit is filed out of time, the
court must dismiss it of its own motion. No party need point out the limitation bar.
o Mukund Ltd. vs. Mumbai International Airport & Ors. (2011): Once a suit is shown to
be time-barred, the court cannot consider merits or evidence; it must naturally dismiss
the claim.

Commencement of Limitation
 The Act’s Schedule specifies, for each type of suit or application, when the limitation period
begins:
o Typically, from the date the cause of action accrues (e.g., when the breach or tort
occurs)
o For appeals, from the date the decree or judgement is pronounced
o For certain notices (e.g., under rent control or tenancy causes), from the date of
service
 Judicial Insight: Trustee’s Port Bombay vs. Premier Automobile Ltd. & Ors. (1974): The
Supreme Court clarified that limitation for a suit starts when the cause of action arises.

When the Court Is Closed (Section 4)

 If the last day of the limitation period falls on a court holiday or when the court is otherwise
closed, the suit, appeal, or application may be filed on the next working day without penalty.
 Illustration: If the filing deadline is 30 December (when courts are closed), a litigant can file
on 1 January (when courts reopen).

Condonation of Delay (Section 5)

Courts may extend prescribed periods for appeals and certain applications if the appellant/applicant
can demonstrate “sufficient cause” for not filing on time. This does not apply to ordinary civil suits
(Section 3).
 Examples of “Sufficient Cause”:
o Being misled by a High Court order or practice (e.g., under Order XXI of CPC)
o Serious illness, natural disaster, or other unavoidable impediments
 Key Rulings:
o State of Kerala vs. K.T. Shaduli Yussuff (1977): Whether “sufficient cause” exists
depends on facts of each case.

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 o Balwant Singh (Dead) vs. Jagdish Singh & Ors. (2010): A delay of 778 days, without
adequate explanation, was not condoned.
o Ornate Traders Pvt. Ltd. vs. The Income Tax Officer (2008): If an applicant acts bona
fide and provides a reasonable justification, courts generally lean toward condonation.
Mere negligence or carelessness militate against it.
o H.H. Brij Indar Singh vs. Lala Kanshi Ram (1917): The yardstick is whether the litigant
acted with reasonable diligence.
o Collector Land Acquisition, Anantnag & Ors. vs. Mst. Katiji & Ors. (1987): The
Supreme Court held “sufficient cause” should be liberally construed to advance
substantial justice, not squash it on technicalities. Principles established:
1. A delayed filer gains no actual advantage from tardiness.
2. The reasons must be realistically explained.
3. Delay can jeopardize a party’s case.
4. The judiciary’s role is to remove injustice, not perpetuate it through rigid
timelines

4.6Legal disability S.6-10

Section 6 of the Act deals with situations where a person who has the right to file a lawsuit or apply
for the execution of a decree is under a legal disability. Legal disabilities include being a minor
under 18 years old, insane, or an idiot. Accordingly, Section 6 includes:
If a person who is a minor, mentally ill, or mentally disabled has the right to file a lawsuit or enforce
a decree, the time period for taking action starts only after their disability ends. Accordingly, they get
the same amount of time to act as if their disability never existed. Their legal rights are protected
until they are able to act on them.

If a person has two disabilities at the start of the time period or acquires a second disability before
the first one ends, they can still file the lawsuit or application. They are allowed to do so within the
same time period after both disabilities have ended, just as they would have at the original start time
mentioned in the schedule.
If the person remains disabled until their death, their legal representative can start the lawsuit or
make the application within the same time period after the death as the person would have had from
the original start time listed in the Schedule.
If the legal representative is also affected by a disability at the time of the person's death, the rules
from Section 5(1) and Section 6(2) apply to them as well.

If a person dies after their disability ends but within the time allowed by this section, their legal
representative can still file the lawsuit or application. The representative has the same amount of
time after the person's death as the person would have had if they had not died.
For this Section, a 'minor' also includes a child in the womb.

Disability of one of several persons

Section 7 states that if several people together have the right to file a lawsuit or apply for the
execution of a decree and one of them is under a disability like being a minor, insane, or an idiot,
discharge happens in the following ways:

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If other people can settle the matter without needing the disabled person's agreement, the time limit
for taking action applies to everyone.
If the matter cannot be settled without the disabled person's agreement, the time limit does not
apply to anyone until one of them can settle it without the disabled person's agreement or until the
disability ends.
In a Hindu undivided family under Mitakshara law, the family manager, known as the "Karta" can
make decisions on his own only if he is responsible for the family's shared property.

Special exceptions
Section states that Sections 6 and 7, which provide extensions of time for filing lawsuits due to legal
disability, include:
Rights of preemption
The rules mentioned under Sections 6 and 7 do not apply to cases aimed at enforcing rights of pre-
emption.
Time limit extension
The extension of time provided by Sections 6 and 7 cannot exceed three years from the end of the
disability or the death of the disabled person. This means that even with the extensions allowed,
one can not extend the filing period beyond three years after the disability ends or the person. dies.

Continuous running of time

As per Section of the Act, once the limitation period starts, it keeps going and does not pause, even
if something happens that might make it hard to file the suit. However, there's an exception, if a
debtor is given control over the creditor's estate through letters of administration, the time limit to file
a suit to recover the debt is paused until this administration period is over.
Suits against trustees and their representatives
As per Section 10, if someone is holding property in trust for a specific purpose, like a trustee, there
is no deadline for when a person can sue them to recover that property or its proceeds. No matter
how much time has passed, a person can always take legal action to get the property back or to
hold the trustee accountable for how they used it. The usual time limits that apply to most other
legal actions do not apply here.
For this section, any property involved in a Hindu, Muslim, or Buddhist religious or charitable
endowment is considered property held in trust for a specific purpose. The manager of this property
is regarded as the trustee.

4.7 Computation of period of limitation (S.12-24)

Section 18: Effect of Acknowledgement in Writing
A valid written acknowledgment of liability, signed by the debtor (or authorised agent), before expiry
of limitation, restarts the limitation period from the date of that acknowledgment.
 An undated acknowledgment may be dated through oral testimony (though the contents
cannot be proved orally under the Evidence Act, 1872).
 An acknowledgment remains valid even if it does not specify the precise nature of the asset
or right, so long as it confirms the debt or liability.
 The term “signed” includes an authorised agent’s signature.
 Applications to execute a decree/order are not “concerning any property or right” for
purposes of Section 18.
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  Case Application:
o Laxmi Pat Surana vs. Union Bank of India & Another (2021): The Supreme Court held
that Section 18 also applies to insolvency applications under Section 7 of the IBC. A
written acknowledgment of debt can extend limitation for filing an insolvency petition.

Section 19: Effect of Payment on Account of Debt or Interest on Legacy

When a debtor (or authorised agent) makes a payment towards the principal debt or interest on a
legacy before the limitation expires, a fresh limitation period begins from the date of payment.
 For interest payments after 1 January 1928, a written acknowledgment of such payment is
required.
 If mortgaged land is in the mortgagee’s possession, receipt of rent/produce counts as
payment.
 “Debt” excludes sums due under a court decree or order.

Section 20: Acknowledgment/Payment by Another Person

 Agent for Disabled Person: For someone under a disability, “duly authorised agent”
includes their legal guardian, committee, or manager, or someone authorised by them to
acknowledge or make payment.
 Joint Debtors/Contractors: A written acknowledgment or payment by one of multiple joint
obligors does not automatically bind the others, unless specifically authorised.
 Hindu Undivided Family: An acknowledgment or payment by the karta (HUF manager) or
his authorised agent binds the entire family, including successors (reversioners).

Section 21: Substituting or Adding New Party

If a new plaintiff or defendant is joined after a suit’s institution, limitation for that new party starts
from the date of their addition. If omission of a party was due to an honest mistake and the court so
records, the suit may be deemed to have been instituted for that party on the original date.
Requirement of Court Order: A formal order must explicitly declare that the suit is taken to be
instituted on the earlier date; mere inclusion/substitution is insufficient without such an order.

Section 22: Continuing Breaches and Torts

In cases of contract breaches or torts that persist over time, a new limitation period begins from the
last act in the series of wrongful acts.

Section 23: Suits for Compensation Not Actionable Without Special Damage
 When a one-time wrongful act causes “special damage” (making it actionable), limitation
begins from the moment the injury occurs.
 Judicial Note: Balakrishna Savalram Pujari Waghmare vs. Shree Dhyaneshwar Maharaj
Sansthan & Ors. (1959): A continuing wrong requires that the wrongful act itself continue to
inflict new injury, not merely that the damage from a single act persists.

Section 24: Instruments and Gregorian Calendar

All time periods mentioned in contracts or deeds must be computed according to the Gregorian
calendar.

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4.8 Effect of acknowledgment in writing and part-payment (S. 18-20)
Under Section 18, if there is an acknowledgement of liability concerning any property or right, a new
limitation period will start from the date the acknowledgement was signed. It includes:
Under Section 18(1), if a person acknowledges in writing that they owe something like property or a
right before the time limit for filing a lawsuit expires, this acknowledgment must be signed by that
person or someone who has the authority to do so on their behalf. Once this acknowledgment is
made, the time limit for filing a lawsuit starts over from the date the acknowledgment was signed.
Under Section 18(2), if the written acknowledgement does not have a date, oral evidence cari be
provided to establish when it was signed. However, according to the Indian Evidence Act of 1872,
oral evidence of the contents of the acknowledgement is not allowed. For this section:
 An acknowledgement can still be valid even if it does not specify the exact nature of the
property or right. It remains valid even if it states that the time for payment, delivery,
performance, or enjoyment has not yet come. It is also valid if it is accompanied by a refusal
to pay, deliver, perform, or permit enjoyment. Additionally, it remains valid if it includes a
claim to set-off or is addressed to someone other than the person entitled to the property or
right.
 The term "signed" means signed either personally or by an agent who is duly authorised.
 An application for executing a decree or order is not considered an application concerning
any property or right.
In the case of Laxmi Par Surana ve. Union Bank of India & Another (2021), the Supreme Court of
India interpreted Section 18 of the Limitation Act, 1963, specifically regarding its applicability to
insolvency proceedings under the insolvency and Bankruptcy Code, 2016 (IBC). Section 18 of the
Limitation Act states that when there is an acknowledgement of a debt in writing, signed by the
debtor, a new period of limitation starts from the date of that acknowledgement.

The Supreme Court held that this provision also applies to applications for initiating insolvency
proceedings under Section 7 of the IBC Accordingly, if a debtor acknowledges their debt in writing,
the time limit for the creditor to file an insolvency application can be extended from the date of that
acknowledgement. In this particular case, the Court noted that the limitation period for a default that
occurred in 2012 would have expired in 2015 unless the debt was acknowledged in writing. before
that time. However, the applicant failed to provide any evidence of such acknowledgement by the
respondent before the limitation period lapsed. Thus, the Court rejected the appeal and emphasised
the necessity of a clear, written acknowledgement of debt to extend the limitation period under
Section 18

Effect of payment on account of debt or interest on legacy

Section 20 states that when a person is under a disability, the term "agent duly authorised includes
the lawful guardian, committee, manager, or an agent who has been duly authorised by such
guardian, committee, or manager. It contains the following subsections:
Under Section 70(1), the term "agent duly authorised on this behalf In Sections 18 and 19 Includes,
for someone under a disability, their lawful guardian, committee or manager, or an agent authorised
by such guardian, committee, or manager to sign the acknowledgement or make the payment.
Under Section 20(2), Sections 18 and 19 do not make one of several joint contractors, partners,
executors, or mortgagees responsible just because another one of them, or their agent, has signed
a written acknowledgement or made a payment.

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Under Section 2013), for Sections 18 and 19, an acknowledgment signed or a payment made by
any limited owner of property governed by Hindu law, or their authorised agent, is valid against a
reversioner, the person who inherits the property succeeding to the liability. If a liability is incurred
by or on behalf of a Hindu undivided family, an acknowledgment or payment made by the current
manager of the family, or their authorised agent, is considered to be made on behalf of the whole
family.

4.9 Acquisition of ownership by possession (S. 25-27)

Introduction
The concepts of possession and the passage of time can significantly affect legal ownership. The
Limitation Act, 1963, plays a crucial role in this area by setting time limits for initiating legal actions
and also allowing acquisition or loss of property rights through long and uninterrupted possession.
This system is not only about rewarding vigilant possessors, but also about encouraging
landowners to be proactive in protecting their rights.
Sections 25, 26, and 27 of the Limitation Act, 1963 are key to understanding how someone can
acquire property rights simply by remaining in possession for a defined period, or how owners may
lose rights if they “sleep over” them. This article aims to explain these provisions in simple, clear
language, supported by examples and relevant case law.

Conditions for Acquiring an Easement

To gain an easement under Section 25, the following must be satisfied:
The access to light or air must have been:
 Used peacefully (without force or conflict).
 Recognized as an easement (a legally acknowledged right).
 Exercised as of right (without needing permission).
 Continuous, without any interruptions.
 Used for at least 20 years (or 30 years for government property).
For Other Easements (e.g., roads, water use):
 The path, watercourse, or other usage must have been:
 Used peacefully.
 Used openly (without secrecy).
 Used by someone who claims ownership of that right.
 Exercised as an easement.
 Legally recognized as a right.
 Continuous, without interruptions.
 Used for at least 20 years (or 30 years for government property).

Why Does Possession Matter in Law?

Before diving into the Limitation Act, it’s essential to understand why possession is given so much
importance.
 Possession as Evidence of Ownership: In practice, the person who possesses land or
property is presumed to be its owner unless proven otherwise. This is because possession is
visible and easy to prove, whereas documentary titles may be lost or disputed.

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  The Principle Behind Adverse Possession: The law does not favour property lying
unused. If someone openly occupies and uses property without the owner’s permission for a
long time, and the owner does nothing to recover it, the law may favour the possessor in
order to maintain social order and avoid endless disputes.

Key Provisions: Sections 25, 26 and 27

Let’s now look at the three main sections that govern acquisition by possession under the Limitation
Act.

Section 25: Acquisition of Easements by Prescription

An easement is a right to use someone else’s land for a specific purpose, like a right-of-way, right to
light, or right to drain water.
Section 25 says that if a person enjoys an easement over another’s property peacefully, openly, as
of right, and without interruption for 20 years, he or she gets a legal right to continue that use. If the
property belongs to the government, the period is 30 years.
The enjoyment must end within two years before the claim is contested in court. Temporary
obstructions do not count unless they last for at least one year and are not challenged by the
claimant.

Essentials for Prescriptive Easement

1. Peaceful Possession: No force is used by the claimant, and the enjoyment is not stopped
by force.
2. Open Possession: The use must be visible to the owner, not secret or hidden.
3. As of Right: The use must be without the owner’s permission, and as if the claimant had a
right to do so.
4. Without Interruption: The use must continue without significant break for the entire 20 or 30
years.
Suppose A regularly walks across B’s land to reach the main road. If A does this openly and
peacefully, without B’s permission or interference, for 20 years, A gets a legal right of way over B’s
land.

Case Law
 Rachhaya Pandey v. Sheodhari Pandey (1963): The Supreme Court held that naturally
draining rainwater is not an easement under Section 25.
 Manindra Nath Bose v. Balaram Chandra Patni (1973): The Calcutta High Court held that
a customary right of way for villagers cannot be acquired as a prescriptive easement under
Section 25.

Section 26: Exclusion for Reversioner of Servient Tenement

Section 26 deals with situations where the property over which an easement is claimed is held on
a life interest or a lease exceeding three years. In such cases, the period during which the
easement was enjoyed while the property was under such a lease or life interest is excluded from
counting towards the 20 or 30-year period.

However, the person who regains possession (the reversioner) must resist the easement claim
within three years of getting back the property.

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Suppose C uses a right-of-way over D’s property, which is leased to E for 10 years. The 10 years
during which E had the lease will not count towards C’s prescriptive period. After D gets the
property back, the clock resumes. D must object within three years, or C can add the time.

Section 27: Extinguishment of Right to Property

Section 27 states that if a person does not bring a suit for possession of property within the
limitation period, they lose the right to recover the property itself. Unlike most limitation provisions
that bar only the remedy, Section 27 bars both the remedy and the right.
Under Article 65 of the Limitation Act, the limitation period for possession of immovable property is
12 years from the date when the defendant’s possession becomes adverse to the plaintiff.
If the suit is not filed within 12 years, the owner’s right is extinguished, and the person in adverse
possession becomes the legal owner.
If a trespasser occupies land, pays tax, or uses it as their own for 12 continuous years, and the true
owner does nothing, the trespasser can become the legal owner.

The Doctrine of Adverse Possession

Section 27 is closely connected to the doctrine of adverse possession.
 Adverse Possession means holding property in a manner hostile to the interests of the true
owner.
 The possessor must show that his possession was open, continuous, and known to the true
owner.
 The limitation period (usually 12 years) begins when the true owner first becomes aware of
the adverse possession.

Essentials to Prove Adverse Possession

1. Date of Starting Possession: The possessor must establish the exact date when
possession became adverse.
2. Knowledge of Owner: The true owner should be aware (or have means of knowledge) that
someone else is in possession.
3. Peaceful and Continuous Possession: The possession must not be by force and must
continue for the entire period.
4. No Legal Action by Owner: The owner must not have taken any legal steps to regain
possession during this period.
The limitation period does not run if the true owner is a minor, of unsound mind, or serving in the
armed forces.
If the land belongs to the government, the period required for adverse possession is 30 years.

Key Judgements on Acquisition of Ownership by Possession

Rajender Singh v. Santa Singh (1973)
The Supreme Court clarified that the purpose of limitation law is to prevent disturbance of settled
possession that has continued for a long time. If the true owner does not act, the possessor gains a
legal right through passage of time.

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Ravinder Kaur Grewal v. Manjeet Kaur (2019)
The Supreme Court held that a claim for adverse possession is maintainable under Article 65. The
adverse possessor must prove all elements—hostile, open, and continuous possession—to
succeed.

Conclusion
The Limitation Act, 1963, through Sections 25, 26, and 27, establishes a fair balance between
protecting property rights and rewarding those who have used land openly and continuously for a
long time. These provisions promote certainty in land titles, prevent endless litigation, and
encourage vigilance among landowners.
However, it is essential for everyone—owners and possessors alike—to understand that merely
occupying land does not automatically make you the owner. The law requires open, continuous, and
hostile possession for a specific period, and all essential conditions must be fulfilled.

…………………………

Extra questions
Adverse possession
The doctrine of adverse possession stands as one of the most debated concepts in Indian property
law. It refers to a situation where a person who is not the legal owner of a property acquires
ownership rights over that property by continuous, hostile, and uninterrupted possession for a
specified period, typically 12 years under the Limitation Act, 1963. This article aims to explore the
meaning, historical development, key elements, landmark judgements, and legal provisions
concerning adverse possession, while also critically examining the fairness and relevance of this
doctrine in the contemporary legal landscape.
The key principle behind adverse possession can be encapsulated by the Latin maxim “Vigilantibus
non dormientibus jura subveniunt”, meaning that the law helps those who are vigilant, not those who
are asleep on their rights. While this concept incentivises the active use of land, it also has
significant implications for property owners, who may lose their rights due to inaction.

Adverse Possession: Meaning and Definition

Adverse possession essentially means that an individual, despite not being the legal owner of a
property, acquires ownership rights over time through continuous and uninterrupted possession of
the property. This possession must be hostile to the interests of the true owner, i.e., without their
permission or consent, and must last for a period of at least 12 years for private property and 30
years for government property.

Under Section 27 of the Limitation Act, 1963, the rights of the original owner to reclaim the property
are extinguished after the prescribed limitation period. The concept is based on the presumption
that if the rightful owner of a property has failed to take action to recover possession for a significant
period, they have effectively abandoned their rights.

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Historical Development of Adverse Possession in India
The doctrine of adverse possession has its roots in ancient legal systems, including the Hammurabi
Code from 2000 BC. It evolved through Roman law and later through English statutes of limitation,
with the Property Limitation Act of 1874 being a significant milestone.

In India, the law governing adverse possession was first introduced in 1859 through the Act XIV of
1859, which was later replaced by the Limitation Act of 1963. The 1963 Act remains the primary
legal framework governing the doctrine of adverse possession in India. It prescribes specific periods
of limitation for different types of properties and outlines the burden of proof required to establish an
adverse possession claim.

Meaning
Adverse possession essentially means when a tenant possesses the property of the owner when
they are not legally entitled to do the same overtly ie, without any attempt regarding the
concealment from the owner. In such a situation, if they continue to hold the property unlawfully for
more than 12 years and the owner, despite having the same, doesn't take any action over these
years, they would lose their right to claim the property by filing a suit in the court of law upon the
expiration of this term. As a result, the person in the possession of the property will acquire a
prescriptive title over the land through adverse possession.

This concept is based on the legal maxim vigilantibus nori-dorrnientibus subvenit lex' which means
that the law favours only the active citizens and not those who are dormant or in other words, are
not concerned about their rights. This concept, at times, might be unfair to the lawful owner of the
property due to which it is subject to certain exceptions Yet, in such a situation, the landiords failed
to enforce the rights available to them. Hence, they shall not be allowed to reinforce the same or re-
enter their land after a long passage of time. The person who possessed the land even if unlawfully
has certain expectations due to the long passage of time which is 12 years in which no action was
taken. It could prove to be unjust to the possessors if some action is taken after so long when they
have become accustomed (habituated) to using that property.
For the possession to be adverse, there are several essential elements required to be fulfilled, and
such elements have been derived from the various case laws which are discussed below

Illustrations
a) A person X provides his land on rent to Y for a period of 6 months. However, even after the
expiry of the time period, he continues to possess the property. Despite knowing about the
possession, X doesn't take any action and Y continues to possess the property for 12 years. In such
a situation, Y can claim adverse possession over the property and after 12 years, X can't claim the
ownership of the land..
b) An individual B was employed by C to maintain his house while he is not there. B started staying
on C's property while C returns after 12 years. In this situation, C can't claim ownership of the
property and the possession would be transferred to B. This is an example of a possession that was
adverse from the very beginning.
c) A person named X entered into a property owned by the Government but not in operation and
started staying in it. As a result, the period of adverse possession began as soon as X entered into
the Government property. If the Government files a suit against the person after 30 years of

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continuous possession, then X would be able to claim adverse possession of Government-owned
property because the period of limitation which was 30 years to file a declaratory suit got over.

Doctrine of Adverse Possession

The doctrine of adverse possession is based on the idea that ownership of land should not remain
static if it is not being utilised effectively by the rightful owner. The law presumes that land should be
put to productive use, and if a trespasser possesses the land openly and continuously for a specific
period without being challenged, they acquire ownership rights.
The doctrine of adverse possession states that when a person holds the property owned by any
other individual for an uninterrupted period of more than 12 years, they would become the lawful
owner of the land. This doctrine was introduced initially in India in 1907 and was based on the
following principles:
1. There should be no question regarding the ownership of the property Le, the property that has
been possessed by the tenant unlawfully must be lawfully owned by the landlord and there shall be
no question upon it.
2. The person who is possessing the property shall be considered the owner of the same if for a
longer period of time there has been no Intervention on part of the original owner.
3. A person who owned the property but later on left it without doing anything is considered to have
waived off their right on that property or the land.
Later on, several developments took place in the doctrine itself according to the changing context of
India's changing conditions.

Legal Provisions Relating to Adverse Possession

In India, the Limitation Act, 1963 primarily governs adverse possession. Several sections of the
Act deal with this doctrine:
1. Section 27: Extinguishment of the right of the owner to recover possession after the
limitation period (12 years for private property and 30 years for government property).
2. Article 64 and Article 65: These provisions lay down the specific limitation periods for filing
suits for possession of immovable property. Article 65 specifically addresses adverse
possession, placing the burden of proof on the claimant to show that they have possessed
the property in a hostile, open, and continuous manner for 12 years or more.
3. Article 112: For property owned by the government, the limitation period for claiming adverse
possession is extended to 30 years.

Key Elements to Prove Adverse Possession

To successfully claim adverse possession, the following key elements must be demonstrated:
Hostile Possession
The possession must be without the permission or consent of the true owner. It must be in defiance
of the owner’s rights and interests.
Continuous and Uninterrupted Possession
The possession must be continuous and without any interruptions for a period of at least 12 years.
Any break in possession will reset the limitation period.
Open and Notorious Possession
The possession must be visible and open to everyone, including the rightful owner. The possessor
should not attempt to conceal their occupation of the property.

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Exclusive Possession
The possession must be exclusive to the possessor. They must act as if they are the true owner of
the property and exclude others, including the rightful owner, from its use.
Peaceful Possession
The possession must be peaceful and without force or coercion. If the possessor uses threats or
violence to maintain possession, it will not qualify as adverse possession.

Adverse Possession in CPC (Code of Civil Procedure)

Under the Code of Civil Procedure (CPC), 1908, adverse possession can be claimed as a defence
in suits for the recovery of immovable property. The possessor can plead adverse possession
under Order 8, Rule 2, of the CPC, which allows a defendant to raise all defences available to
them, including the plea of adverse possession. The plea can also be raised in declaratory suits,
where the possessor seeks a judicial declaration of ownership based on adverse possession.

Landmark Judgements on Adverse Possession

Indian courts have consistently interpreted and developed the doctrine of adverse possession
through a series of landmark judgements. These cases provide insight into the judicial
understanding of the doctrine:
1. Perry v. Clissold (1907): This early case established that if a person holds land for a long
time, without interference from the true owner, they can claim ownership by adverse
possession.
2. Kshitish Chandra Bose v. Commissioner of Ranchi (1981): The Supreme Court held that
the adverse possessor’s possession must be open, continuous, and hostile to the rights of
the true owner. The court emphasised that mere possession was not enough; it must be
adverse to the interests of the owner.
3. Thakur Kishan Singh v. Arvind Kumar (1994): In this case, the Supreme Court clarified
that permissive possession, i.e., possession with the owner’s permission, does not amount to
adverse possession. The possessor must demonstrate that their possession was hostile to
the owner’s rights.
4. Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan (2008): The Supreme Court
criticised the doctrine of adverse possession, describing it as unfair and irrational in modern
times. The court called for a re-examination of the law, noting that it rewards trespassers
while penalising property owners who fail to act within the limitation period.
5. State of Haryana v. Mukesh Kumar (2011): The court reiterated that adverse possession
must be continuous, hostile, and uninterrupted. The state was also criticised for using the
doctrine to take over private property.

How to prove adverse possession

The burden of proving the adverse possession lies upon the person who is claiming such a defence
under the Limitation Act of 1963. To prove the adverse Possession, they would need to prove the
following things. before the court of law

1. The date from which the property was under their adverse possession, from which the 12 years
are going to be calculated.

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2. They are also required to prove the date from which the adverse possession of the property came
to the knowledge of the owner. They also need to specify the date from which the possession of
property came to the knowledge of immediate neighbours.
3. They are required to prove that the possession of the property was peaceful. It should not be
possessed by coercing the owner and should be in opposition to what the owner expects
4. The person making a claim also needs to prove beyond a reasonable doubt before the court that
the property owner, despite having the knowledge of the possession, didn't take any action against
the possessor
5. They also need to ensure at the same time that the exceptions to this rule aren't applicable in
their given case at hand.
6. They are further also required to prove that the possession of the property was continuous before
the Court without any interruptions by the owner of the property or any other person.
These are some of the aspects that the person in possession of the property would be required to
prove before the Court to claim the defence of adverse possession.

Criticism of the Doctrine of Adverse Possession

The doctrine of adverse possession has been subject to considerable criticism for its perceived
unfairness. Critics argue that the doctrine allows trespassers or squatters to benefit from illegal acts
and rewards those who unlawfully occupy someone else’s property. In modern times, where land is
often left idle for legitimate reasons (e.g., due to inheritance disputes or temporary relocations), the
doctrine can be particularly harsh on rightful owners.
1. Unfair to True Owners: The most common criticism is that adverse possession is unfair to
the rightful owner, especially when the owner is unaware of the possession or is unable to
take action due to unforeseen circumstances.
2. Encourages Unlawful Activity: By granting ownership to a trespasser, the doctrine is seen
as encouraging unlawful activity, as it rewards those who occupy land illegally.
3. Outdated Concept: Many legal experts and jurists argue that the doctrine is outdated and
does not reflect modern societal values, particularly in an age where land is increasingly
valuable and can be left idle for legitimate reasons.
In the Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan case, the Supreme Court
acknowledged these concerns, stating that the doctrine should be re-examined to balance the
interests of both owners and possessors.

Conclusion
The doctrine of adverse possession, as governed by the Limitation Act, 1963, continues to play a
significant role in property law in India. It serves the dual purpose of encouraging the use of land
while penalising property owners who fail to take timely action to reclaim their land. However, the
doctrine has been widely criticised for being unjust and outdated.
While adverse possession provides legal certainty and rewards diligent possessors, its application
can often result in inequitable outcomes for property owners. The need for reform is widely
recognised, and changes to the legal framework should focus on striking a balance between the
rights of possessors and the rights of original owners.

By prescription
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The concepts of possession and the passage of time can significantly affect legal ownership. The
Limitation Act, 1963, plays a crucial role in this area by setting time limits for initiating legal actions
and also allowing acquisition or loss of property rights through long and uninterrupted possession.
This system is not only about rewarding vigilant possessors, but also about encouraging
landowners to be proactive in protecting their rights.
Sections 25, 26, and 27 of the Limitation Act, 1963 are key to understanding how someone can
acquire property rights simply by remaining in possession for a defined period, or how owners may
lose rights if they “sleep over” them. This article aims to explain these provisions in simple, clear
language, supported by examples and relevant case law.

Why Does Possession Matter in Law?

Before diving into the Limitation Act, it’s essential to understand why possession is given so much
importance.
 Possession as Evidence of Ownership: In practice, the person who possesses land or
property is presumed to be its owner unless proven otherwise. This is because possession is
visible and easy to prove, whereas documentary titles may be lost or disputed.
 The Principle Behind Adverse Possession: The law does not favour property lying
unused. If someone openly occupies and uses property without the owner’s permission for a
long time, and the owner does nothing to recover it, the law may favour the possessor in
order to maintain social order and avoid endless disputes.

Key Provisions: Sections 25, 26 and 27

Let’s now look at the three main sections that govern acquisition by possession under the Limitation
Act.
Section 25: Acquisition of Easements by Prescription
An easement is a right to use someone else’s land for a specific purpose, like a right-of-way, right to
light, or right to drain water.
Section 25 says that if a person enjoys an easement over another’s property peacefully, openly, as
of right, and without interruption for 20 years, he or she gets a legal right to continue that use. If the
property belongs to the government, the period is 30 years.
The enjoyment must end within two years before the claim is contested in court. Temporary
obstructions do not count unless they last for at least one year and are not challenged by the
claimant.

Essentials for Prescriptive Easement

1. Peaceful Possession: No force is used by the claimant, and the enjoyment is not stopped
by force.
2. Open Possession: The use must be visible to the owner, not secret or hidden.
3. As of Right: The use must be without the owner’s permission, and as if the claimant had a
right to do so.
4. Without Interruption: The use must continue without significant break for the entire 20 or 30
years.
Suppose A regularly walks across B’s land to reach the main road. If A does this openly and
peacefully, without B’s permission or interference, for 20 years, A gets a legal right of way over B’s
land.

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Case Law
 Rachhaya Pandey v. Sheodhari Pandey (1963): The Supreme Court held that naturally
draining rainwater is not an easement under Section 25.
 Manindra Nath Bose v. Balaram Chandra Patni (1973): The Calcutta High Court held that a
customary right of way for villagers cannot be acquired as a prescriptive easement under
Section 25.

Section 26: Exclusion for Reversioner of Servient Tenement

Section 26 deals with situations where the property over which an easement is claimed is held on
a life interest or a lease exceeding three years. In such cases, the period during which the
easement was enjoyed while the property was under such a lease or life interest is excluded from
counting towards the 20 or 30-year period.

However, the person who regains possession (the reversioner) must resist the easement claim
within three years of getting back the property.
Suppose C uses a right-of-way over D’s property, which is leased to E for 10 years. The 10 years
during which E had the lease will not count towards C’s prescriptive period. After D gets the
property back, the clock resumes. D must object within three years, or C can add the time.
Section 27: Extinguishment of Right to Property
Section 27 states that if a person does not bring a suit for possession of property within the
limitation period, they lose the right to recover the property itself. Unlike most limitation provisions
that bar only the remedy, Section 27 bars both the remedy and the right.
Under Article 65 of the Limitation Act, the limitation period for possession of immovable property is
12 years from the date when the defendant’s possession becomes adverse to the plaintiff.

If the suit is not filed within 12 years, the owner’s right is extinguished, and the person in adverse
possession becomes the legal owner.
If a trespasser occupies land, pays tax, or uses it as their own for 12 continuous years, and the true
owner does nothing, the trespasser can become the legal owner.

Effect of unsoundness of mind and minority on the period of limitation

Definition of Minor and Persons of Unsound Mind
According to Section 3 of the Indian Majority Act, 1875, a minor is a person who has not attained
the age of 18 years. However, if a guardian has been appointed by the Court for the minor’s person
or property or if the minor’s property is under the supervision of a Court of Wards, the age of
majority is extended to 21 years. A person of unsound mind refers to an individual who cannot
protect their interests due to mental infirmity and their condition may be adjudicated by the Court
either before or during the suit.

Purpose of Order XXXII: Suits by or Against Minors and Persons of Unsound Mind
Order XXXII of the CPC is specifically designed to protect the interests of minors and persons of
unsound mind by ensuring they are properly represented in legal proceedings. Due to their lack of
capacity and judgement, these individuals cannot legally bind themselves except in cases beneficial

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to them. Therefore, the appointment of a guardian or next friend is crucial to safeguard their legal
rights and interests.

Provisions for Suits by or Against Minors and Persons of Unsound Mind under Order XXXII
Rule 1: Minor to Sue by Next Friend
Every suit by a minor must be instituted in the minor’s name by a person called the next friend. The
next friend represents the minor in all legal proceedings, ensuring that the minor’s interests are
adequately protected.

Rule 2: Where Suit is Instituted without Next Friend

If a suit is filed on behalf of a minor without a next friend, the defendant can apply to have the plaint
taken off the file. The person who presented the plaint may be ordered to pay the costs incurred by
the defendant. Notice of such an application must be given to the person who filed the suit and the
Court, after hearing their objections, may make an appropriate order.

Rule 2A: Security to be Furnished by Next Friend when Ordered

The Court can require the next friend of a minor to provide security for the payment of
all costs incurred or likely to be incurred by the defendant. This provision, introduced by the
Amendment Act of 1976, aims to prevent frivolous litigation by ensuring that the next friend has a
vested interest in the suit and is financially accountable.

Rule 3: Guardian for the Suit to be Appointed by Court for Minor Defendants
When a minor is a defendant, the Court must appoint a guardian for the suit, known as a guardian
ad litem. The guardian ad litem is responsible for defending the minor throughout the legal
proceedings unless terminated by retirement, removal or death. The application for appointing a
guardian must be supported by an affidavit verifying that the proposed guardian has no adverse
interest in the matters of the suit and is fit for the role.

Rule 3A: Decree Against Minor not to be Set Aside Unless Prejudice has been Caused to His
Interest
A decree against a minor will not be set aside merely because the next friend or guardian had an
adverse interest. However, if this adverse interest prejudices the minor, it is a valid ground for
setting aside the decree. This rule ensures that the minor’s interests are protected from any
potential conflicts of interest.

Rule 4: Who May Act as Next Friend or be Appointed Guardian for the Suit
Any adult of sound mind, who does not have an adverse interest, may act as the next friend or
guardian for the suit. If a minor already has a guardian appointed by a competent authority, no other
person can act as the next friend or guardian unless the Court deems it necessary for the minor’s
welfare. This rule ensures that the minor is represented by someone with their best interests at
heart.

Rule 5: Representation of Minor by Next Friend or Guardian for the Suit

All applications and orders concerning a minor in a suit must be made through the minor’s next
friend or guardian. Any orders made without such representation can be set aside if it is shown that

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the pleader knew or should have known about the minor’s status. This provision safeguards the
minor’s legal rights and ensures proper representation in Court.

Rule 6: Receipt by Next Friend or Guardian for the Suit of Property under Decree for Minor
A next friend or guardian cannot receive any property on behalf of a minor without the Court’s
permission. The Court may require security to ensure the proper management of the property and
protect it from waste. This rule prevents the misuse of the minor’s property and ensures its proper
application for the minor’s benefit.

Rule 7: Agreement or Compromise by Next Friend or Guardian for the Suit

A next friend or guardian cannot enter into any agreement or compromise on behalf of the minor
without the Court’s permission. Any such agreement without the Court’s leave is voidable. This rule
protects the minor from potential exploitation and ensures that any compromise is in their best
interest.

Rule 8: Retirement of Next Friend

A next friend cannot retire without first finding a suitable replacement and providing security for
costs already incurred. This ensures continuity in the minor’s representation and prevents any
disruption in the legal proceedings.

Rule 9: Removal of Next Friend

The Court can remove a next friend if their interest is adverse to the minor, they are connected to
the defendant, fail to perform their duties or for any other sufficient cause. This provision ensures
that the next friend acts in the minor’s best interest and can be replaced if they fail to do so.

Rule 10: Stay of Proceedings on Removal, etc., of Next Friend

If a next friend retires, is removed or dies, the proceedings are stayed until a new next friend is
appointed. This prevents any legal actions from proceeding without proper representation of the
minor.

Rule 11: Retirement, Removal or Death of Guardian for the Suit

The Court can permit the retirement, removal or replacement of a guardian during the suit. If a
guardian retires, dies or is removed, a new guardian must be appointed to continue the
proceedings. This ensures that the minor is continuously represented throughout the legal process.

Rule 12: Course to be Followed by Minor Plaintiff or Applicant on Attaining Majority

When a minor plaintiff attains majority, they must decide whether to continue with the suit, dismiss it
or apply to proceed in their own name. The title of the suit is then corrected to reflect their new
status. This rule provides clarity and ensures that the legal proceedings are appropriately updated.

Rule 13: Where Minor Co-plaintiff Attaining Majority Desires to Repudiate Suit
A minor co-plaintiff who attains majority can apply to have their name struck out as a co-plaintiff if
they wish to repudiate the suit. The Court will determine if they are a necessary party and make an
appropriate order regarding their dismissal from the suit. This provision allows the newly major
individual to make an informed decision about their involvement in the legal proceedings.

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Rule 14: Unreasonable or Improper Suit
A minor who attains majority can apply to have a suit dismissed if it was unreasonable or improper.
The Court must be satisfied of the suit’s unreasonableness or impropriety to grant the application.
This rule ensures that the interests of the now-major individual are protected from any prior
decisions made without their informed consent.

Rule 15: Application to Persons of Unsound Mind

Rules 1 to 14 (except rule 2A) apply to persons adjudged to be of unsound mind or found incapable
of protecting their interests due to mental infirmity. This rule extends the protections provided to
minors to persons of unsound mind, ensuring their interests are safeguarded in legal proceedings.

Rule 16: Savings

The provisions of this Order do not apply to the Ruler of a foreign State suing or being sued in the
name of his State or by the direction of the Central Government in the name of an agent. This rule
ensures that diplomatic and sovereign immunities are respected. Additionally, it does not affect any
local laws related to suits by or against minors or persons of unsound mind.

Case Laws on Suits by or Against Minors and Persons of Unsound Mind

Several landmark cases illustrate the application of Order XXXII and the principles governing suits
involving minors and persons of unsound mind.
Ramchandra Arya v. Mansingh

In Ramchandra Arya v. Mansingh (AIR 1968 SC 954), Ramdas filed a civil suit against Ramlal, a
person of unsound mind, to recover a sum of money. The suit, initially heard by the Court of Judge,
Small Causes, was transferred to the Court of Munisif, which passed an ex parte decree against
Ramlal, declaring him sufficiently served. Ramlal’s house was sold in execution of this decree and a
sale certificate was issued to Prabhudayal. Despite the sale, Ramlal continued living in the house
until his death, after which the property escheated to the Maharaja of Jaipur due to the absence of
heirs.

Prabhudayal then filed a suit for possession of the house. The defence argued that since Ramlal
was a lunatic and no guardian ad litem was appointed in the initial suit, the decree was null and
void, making the sale void as well. Both the Trial Court and the first Appellate Court dismissed
Prabhudayal’s suit. The High Court upheld these decisions.
The Supreme Court ruled that the decree was passed in violation of Order XXXII, Rule 15 of the
Code of Civil Procedure, 1908. Ramlal was insane at the time the suit was instituted and during the
execution of the decree. The Court reiterated that any decree against a minor or person of unsound
mind without the appointment of a guardian is null and void, thus invalidating the sale of Ramlal’s
house.

Kasturi Bai v. Anguri Chaudhary

In Kasturi Bai v. Anguri Chaudhary (2003) 1 SCALE 735, the respondent filed a suit for
partition of immovable properties against the appellant, an 87-year-old woman claiming she was
unable to understand and give instructions due to her age. The respondent requested the Court to

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summon the appellant to assess her mental state and, if necessary, appoint a guardian for the suit.
The Trial Court dismissed this application.
The respondent filed a revision application under Section 115 of the Code of Civil Procedure, 1908,
which the High Court allowed, stating that the Trial Court had acted irregularly by rejecting the
application without proper inquiry. The appellants sought to recall this order, arguing that they had
not been served notices. The Division Bench of the High Court treated the recall application as an
appeal and dismissed it.
The Supreme Court held that the Trial Court had failed to conduct an inquiry to determine if the
respondent was capable of protecting her interests due to mental infirmity. The single Judge
committed a jurisdictional error and the Division Bench erred in treating the recall application as an
appeal. The Supreme Court set aside the impugned judgement and directed the Trial Court to
reconsider the matter afresh under Order XXXII, Rule 15 of the CPC, 1908.

Conclusion
Order XXXII of the Code of Civil Procedure, 1908, provides comprehensive guidelines to ensure the
protection of minors and persons of unsound mind in legal proceedings. By mandating the
appointment of a next friend or guardian, the law seeks to safeguard their interests and prevent
exploitation. The detailed provisions of Order XXXII address various scenarios, from the initiation of
suits to the handling of property and the resolution of conflicts of interest.

Attendence of witness
Court has the power to force the individual attendance of any witness living inside the jurisdiction of
the court, or irrespective of the jurisdictional restrictions in case the individual called stays at a
place, not farther than 50 miles from the Court or not more than 200 miles in case of a rail line
correspondence or public means of transport for 5/6th of distance, given that the person isn't
excluded with respect to the provisions of the CPC.

A stipulation was added to Order XVI, Rule 19, CPC in Punjab stating that "a Court in the State of
Punjab may require the personal attendance of any witness living in the State of Punjab or the
Union Territory of Delhi." The provisions for the attendance and summoning of witnesses also apply
to the parties to the suit if they have to produce a document or act as a witness. They apply in a
similar way and to the same extent as they apply to the witnesses who are not involved in the case.
If a public servant is unable to attend the court after being issued summons, the court has the power
to issue a warrant against him.

A notice can be sent to such a public servant to show cause as to why was there a failure on his
part to not obey the summons. In case of failure of attendance on part of the parties and hence the
default of the summons issued, the court has the power to levy punishment on such parties. When
the witness is in attendance the statements and evidence should be recorded promptly and on time
so as to prevent any. adjournment.
Under Section 132 of CPC, ladies who as per the traditions and customs of the nation, should not
be constrained to show up in broad daylight will be absolved from personal attendance in Court
"The Court has a prudence to absolve from participation as a witness any individual who in the
assessment of the Court is, from infection or ailment incapable so to join in or who, being a Civil or
Military Officer of the Government, can't attend without disadvantage to the Public Service "The
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Court might give a Commission regarding the assessment of the witness, whose participation can't
force by law, or according to the conditions indicated all together under Order XXVI of the CPC. The
defendant can be exempted from personal appearance if in case he doesn't stay in the area of the
court's jurisdiction.
The attendance of witnesses is an important part of a civil suit. There exist some obligations on the
part of the witness to give attendance. based on the authority of the court. In case of failure of
attendance, the court has the power to issue warrants Other than these provisions discussed
above, there also exists the provision of exemption of certain individuals like women bound by
certain customs and traditions to not go out in broad daylight etc.

Power of Appellate Court

Introduction
The purpose of this article is to help in explaining to the readers the concept of Appellate Courts, to
understand their need and also to explain the process that is followed when using this mechanism
which is ultimately made for catering to the grievances of the society and upholding justice. As the
title suggests, this article also most importantly gives a brief idea regarding the powers as well as
duties of the appellate court courts which help in guiding them to a fair and just decision.

What is an Appellate Court?

Appellate Courts are those courts which come under appellate jurisdiction which is nothing but the
ability of courts to rehear or review a case that has been already decided by a lower court. This
gives an additional opportunity to the parties to bring their case in the form of appeal to higher
courts if they are not satisfied with the judgement of the lower court. The appellate courts can either
reverse the decision of the lower court or uphold it. Their job is to make sure that justice is delivered
keeping in mind the facts of the case and the relevant laws which apply to those facts. A simple
example is when a person is not satisfied with the judgement of the district court, he/she can take
his/her case before the high court for rehearing.

Meaning and Importance of Appeal

An appeal is a concept which is remedial in nature to secure the right of an individual against an
unjust order passed by a court. Sections 96 to 99A, 107, and 108 of the Code of Civil Procedure
1908 talk about the right of appeal in civil matters. The Code of Civil Procedure was ratified in 1908
to make sure that a party gets a fair trial keeping in mind the principles of natural justice and to lay
down certain procedures in order to expedite the civil proceedings as well as the disposal of cases.
This code makes the right to appeal a statutory and substantive right. Its statutory nature implies
that it has to be specifically conferred by a statute along with the existence of appellate machinery
unlike the right to file a suit which is an inherent right and is substantive in the way that it has to be
taken prospectively unless provided otherwise by any statute.

Right to Appeal under the Code of Civil Procedure

Section 96 of the code says that a right to appeal shall lie in a higher court against any decree or
order passed by any lower court exercising original jurisdiction. Original jurisdiction is the power of a
court to hear a case for the first time, unlike appellate jurisdiction. The above section also proved
certain instances where the right to appeal lies or does not lie, for example, it lies in an ex parte
decision when a decree is passed without hearing both the parties. It can also be passed only on a
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question of law and cannot be passed when the amount of the subject matter of the suit does not
exceed ten thousand rupees.

No person unless he is a party to the suit, is entitled to appeal according to this section. But if a
person, not being a party to the suit, is prejudicially affected or aggrieved by an order passed, then
he/she can appeal such an order through special leave of the appellate court.
Also, according to section 96(3), no appeal can be made against an order or decree which is
passed by the consent of the parties. No appeal exists when a party deliberately waives off its right
to appeal i.e., if a party ratifies the decision of a court by accepting its provisions, then it is estopped
from appealing it in higher courts.

Section 97 talks about how an appeal against a final decree cannot be applied to the preliminary
decree. A preliminary decree is a decree which is passed before the actual disposition of a case
which is done through the final decree, for example, if there is a dispute between two brothers
regarding partition of a property, then the court first decides what will be the share of each owner in
the rights of the property and then file a preliminary decree deciding the justified share. The issue is
not yet disposed of and will only be so if the court further inquires and acts upon the facts gained
through the preliminary decree. Now section 97 says that when the aggrieved party due to the
preliminary decree does not appeal, he shall be precluded from further appealing against this
decree in any appeal directed against the final decree. If there are some questions that are decided
by the court in a preliminary decree and not appealed, then such questions will not be looked into
again by the court in an appeal against the final decree.
Section 99 and 99A say the no order or decree subject to an appeal can be reversed on an error or
irregularity which does not affect the merits of the case or prejudicially affect the decision of the
case.

Power of Appellate Courts

The power of appellate courts is given in section 107 of the code which says that subject to the
limitations provided, an appellate court has to power to –
1. To finally determine a case.
2. To remand a case.
3. To frame issues and refer them to trial.
4. To summon witnesses.
5. To obtain additional evidence or order such evidence to be taken.
6. To reverse the decree of the lower court if it is not justified.
This section further goes on to state that the appellate courts shall have the same powers and shall
perform their duties as nearly in the same procedure as has been laid down by this code for courts
of original jurisdiction.
Now the general rule is that the evidence that is present on record is insufficient for the appellate
court to decide the case and that the order should not be dependent upon any fresh evidence.
There are however certain exceptions to this rule in rare cases. These rare cases give the court the
power of taking additional evidence subject to three conditions.
1. The first condition is that the person seeking or demanding the admission of additional evidence
should be able to establish with a valid reason as to why he/she was not able to provide that
evidence in the first instance i.e., to the lower courts.

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2. The second condition is that the party which is affected by the admission of the additional
evidence should be provided with an opportunity to rebut such additional evidence.
3. The third condition says that the additional evidence that is to be accepted should be relevant for
the determination of the issue or the case at hand.
The above section also gives the power of remand to the appellate court which means that the
appellate court can send the issue back to the lower court to retry or reconsider it. But again, there
are certain conditions that should be met before the court can use this power. The first condition is
that the suit should have been disposed of by the lower court or the trial court at an initial stage or a
preliminary point. Secondly, the order or decree which is under appeal must have been repealed or
reversed and thirdly, there could be any other reason because of which the appellate court
presumes that it will be of paramount importance to send the case back to the lower court keeping
in mind the principles of natural justice and the fact that the case was disposed of by the lower court
at a preliminary point.
Another power and one of the most important one is the power of the appellate court to frame
issues and refer them to trial. The most important aspect and function of a court when deciding a
case are to frame the relevant issues keeping in mind the facts at hand and trying such issues
according to the law. When a trial court or a lower court fails to perform this integral task with the
utmost diligence, the appellate court comes up to frame the relevant issues and subsequently refer
them to trial in the lower court. While performing the above task, the appellate court can also fix any
reasonable time limit as well.
The last and another important power of the appellate court is of modifying an order or a decree.
This power is an absolute discretionary power of the court and hence it cannot be forced in any way
to reverse the decision of a lower court. These powers are entitled to the appellate court to take the
entire case into their hands and impart complete justice.
duties that are fixed upon it. The following are its duties and function
[Link] has a duty to analyze the factual positions keeping in mind the relevant laws and decide the
case. It is the duty of the court to give judgment based on the appeal by applying the judicial minds
that the judges possess.
[Link] has a duty to give cogent or appropriate reasons while reversing the judgement of an inferior
court. It is one of the most important functions of the court which says that all appellate courts other
than a high court have a duty to record reasons justifying their decision.
[Link] decide the appeal only in compliance with the scope and powers conferred upon it under
section 96 and rule 32 of the code.
[Link] has a duty to reappreciate the evidence. The court after taking due care and caution should
reappreciate the evidence that was presented before the lower court to make sure that the approach
of the trial court while recording and appraising the evidence was not erroneous or contrary to the
established principles.
[Link] has a duty not to reverse or interfere with a decree passed by a lower court only on technical
grounds if the decree is otherwise correct and based on merits.

Conclusion
Through this article, we have made ourselves aware and familiar with the system of checks and
balances that have been provided through the Code of Civil Procedure when it comes to the
working of appellate courts. It has been set in this way to make sure that an uncontrollable power is
not given to the higher courts which contrary to its original task of righting the wrongs of lower courts
actually helps undermines their authority. Though they have absolute discretionary power, this

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power cannot be exercised without giving sufficient reasons. All of this is done keeping in mind the
fact that being humans, even one of the wisest minds of our society i.e., the judges, can be capable
of making mistakes due to numerous reasons and since these mistakes could actually affect the
lives of individuals to a great extent, there comes an integral need to correct these mistakes if they
occur by setting up the appropriate institutions and the mechanisms which guide these institutions.

Foreign Judgement
What is Foreign Judgement under CPC?
The term “foreign judgment” is defined in Section 2(6) of the Code of Civil Procedure as a judgment
issued by a court outside India.
Section 13 of the Code outlines the criteria for recognising a foreign judgment, which is a
prerequisite for any enforcement proceedings. Unless a foreign judgment meets the conclusiveness
test outlined in Section 13, it cannot be enforced.

What is a Foreign Court?

A “foreign court,” as defined in Section 2(5) of the Code of Civil Procedure, refers to a court located
outside India that is not established or continued by the central government. Sections 13, 14 and 44
of the Criminal Procedure Code govern foreign judgments.
Section 13 incorporates principles of private international law, stipulating that a court will not enforce
a foreign judgment if it is not from a competent court. These rules are substantive and procedural in
nature.

Enforcement of Foreign Judgements Meaning

Enforcement of foreign judgments is the process of recognising and giving effect to a judgment or
order issued by a court in one country in another country. This process allows the successful party
in a lawsuit to seek the enforcement of the judgment in a different jurisdiction where the defendant’s
assets are located or where the judgment debtor resides.
For example, if a court in Country A awards damages to a plaintiff against a defendant who resides
in Country B, the plaintiff may seek to enforce the judgment in Country B to recover the awarded
damages. The process of enforcement typically involves filing an application in the local court of
the jurisdiction where enforcement is sought, providing evidence of the foreign judgment and
complying with any procedural requirements specified by the local laws.

1. When a Foreign Judgment is Passed by a Court Without Jurisdiction

If a foreign court gives a judgment without having proper jurisdiction (legal authority), that judgment
is considered null and void.
 For a foreign judgment to be valid in India, the court must have had proper jurisdiction
according to both its own country’s law and international law.

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  Example: Gurdyal Singh v. Rajah of Faridkot – The Faridkot court passed a decree against
a person who was neither living nor domiciled in Faridkot. When enforcement was sought in
British India, it was refused because the Faridkot court had no jurisdiction.

2. When a Foreign Judgment is Not Passed on the Merits of the Case

A foreign judgment is valid only if it is passed on the merits—meaning after hearing both sides and
examining the evidence.
 If a case is dismissed just because the plaintiff did not appear, it is not on merits.
 However, even an ex parte decree (where one party is absent) can be considered valid if
the absent party was properly notified but chose not to appear.

3. When a Foreign Judgment is Against Indian or International Law

If a foreign judgment goes directly against Indian law or is based on a wrong understanding of
international law, it will not be enforced in India.
 Example: Narasimha Rao v. Venkata Lakshmi – A foreign divorce decree was rejected
because it was based on grounds not recognised under Indian law.

4. When a Foreign Judgment Violates Principles of Natural Justice

Natural justice means:
 Both parties should get a fair chance to present their case.
 Judgment should not be passed secretly or unfairly.
If a foreign judgment is given without following these rules, it is treated as if it was passed without
jurisdiction (coram non judice) and is not enforceable.

5. When a Foreign Judgment is Obtained by Fraud

If a judgment is obtained by lying or hiding facts, it will not be recognised in India.
 Example: Satya v. Teja Singh – A man falsely claimed U.S. citizenship to get a divorce
decree. The Supreme Court of India rejected the decree as it was obtained by fraud.

6. When a Foreign Judgment Violates Indian Law or Public Policy

A foreign judgment cannot be enforced if it goes against Indian law or public policy.
 Example: Ruchi Majoo v. Sanjeev Majoo – In child custody cases, the Supreme Court held
that the welfare of the child is more important than blindly following a foreign court’s
order.

Section 13 CPC – Six Exceptions (When a Foreign Judgment is Not Enforceable)

A foreign judgment will not be valid in India if:
1. It is not passed by a court of competent jurisdiction.
2. It is not passed on the merits of the case.
3. It is against international law or Indian law.
4. It violates natural justice.
5. It is obtained by fraud.
6. It upholds a claim based on a breach of Indian law.

Section 14 CPC – Presumption of Validity

Indian courts will normally assume a foreign judgment is valid unless someone proves otherwise.

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Sources of Law for Enforcement of Foreign Judgments in India
1. CPC (Parliament Law):
o Section 44A – Judgments from reciprocating territories can be directly enforced in
India.
o Judgments from non-reciprocating territories require filing a fresh suit in India.
2. Bilateral Treaties: India has agreements with some countries about enforcement of
judgments.
3. Judicial Precedents: Courts in India have laid down rules (e.g., Moloji Nar Singh Rao v.
Shankar Saran).

Final Words
 Foreign judgments are respected in India, but only if they meet the conditions in Section 13
CPC.
 If they are against justice, Indian law, or obtained unfairly, they will not be enforced.
 This balance helps India respect international decisions while protecting its own legal system
and public policy.

Suit by or against Government

Introduction
When the Government is involved in litigation, the legal framework surrounding such proceedings is
different from that governing ordinary suits. The Civil Procedure Code (CPC) outlines special
procedures to ensure fairness while protecting public interests. Suits by or against the Government
are governed by Section 79, Section 80, and Order XXVII of the CPC.
These provisions aim to regulate the manner in which the Government or its officers can be sued or
may sue in court. This article explains these provisions in detail, examining their scope, application,
and key judicial pronouncements.

Section 79 – Who Can Sue or Be Sued?

Authority to Be Named
Section 79 of the CPC prescribes that, in suits by or against the Government, the Government
should be named as the appropriate party:
 Central Government: In suits involving the Central Government, the Union of India shall be
named as the plaintiff or defendant.
 State Government: In suits involving the State Government, the concerned State shall be
named.
This section does not provide any cause of action but merely prescribes the mode of proceeding
when a cause of action exists. Essentially, it specifies the name of the parties involved in the suit. It
is important to note that Section 79 does not create a right or liability, but rather determines how the
suit is framed once the cause of action arises.
Jurisdictional Aspects

Under Section 79, only courts that have jurisdiction over the place where the cause of action arises
can entertain the suit. This means that jurisdiction is restricted based on where the wrongful act took
place or where the defendant resides.
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The words “dwell”, “reside”, or “carry on business”, which apply to private individuals, do not apply
to the Government. This ensures that the Government cannot be sued based on these general
provisions. In Dominion of India v. RCKC Nath & Co., it was held that such terms do not apply to
Government bodies, as they are considered exceptions in this context.

Suits Against Railways

In cases where the railway administration is involved, it is not necessary to name the railway
administration as a party. If the railway is administered by the Union of India or a State Government,
the suit can be brought directly against the Union or State.
For instance, in Union of India v. RC Jall, the court held that suits related to the freight charges for
carrying goods could be instituted by the Union of India. This clarification allows streamlined
litigation against the Government without needing to name the administrative body managing
railways.

Section 80 – Pre-Suit Notice Requirement

Section 80 of the CPC is crucial because it mandates a notice to be served before a suit is filed
against the Government or a public officer. This is a procedural requirement designed to give the
Government or the officer a chance to reconsider its position and settle the matter before it
proceeds to litigation. Section 80 lays down the specific procedure for serving such notices.

Order XXVII – Suits by or Against the Government

Order XXVII of the CPC specifically deals with suits involving the Government or public officers
acting in their official capacity. This order provides detailed procedural guidelines for such suits,
outlining how the Government is represented in court and the formalities required to ensure the
Government’s participation in legal proceedings.

Rule 1 – Signing and Verification of Pleadings

In suits by or against the Government, the plaint or written statement must be signed by a person
authorised by the Government. The person signing the document must also verify it in accordance
with the rules. This ensures that the suit or response to a suit is officially sanctioned and presented
by a person with proper authority.

Rule 2 – Recognised Agents

Public officers or government agents who are authorised to act on behalf of the Government in legal
proceedings are deemed to be recognised agents. These agents may make appearances and file
applications on behalf of the Government.

Rule 3 – Simplified Pleading

When suing or being sued, instead of inserting the personal details of the plaintiff or defendant, it is
sufficient to mention the appropriate name of the Government, i.e., “Union of India” or “State of
[Name]”. This simplifies the procedure and avoids unnecessary complications.

Rule 4 – Government Pleader

The Government Pleader is the designated agent for receiving legal processes against the
Government. The Government Pleader does not need a stamped power of attorney, as they are
authorised to represent the Government by default.

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Rule 5 – Time for Communication
The court must allow sufficient time for the Government to communicate through the proper
channels before fixing the date for the Government’s appearance in court. This ensures that the
Government is adequately prepared to respond.

Rule 5A – Joinder of Government in Suits Against Public Officers

If a public officer is sued in their official capacity, the Government must be joined as a co-defendant
in the suit. This ensures that the Government is involved in the suit and has the opportunity to
protect its interests.

Rule 5B – Assistance in Settlement

The court has a duty to assist the parties in reaching a settlement in suits against the Government
or public officers. This provision aims to facilitate amicable resolutions and prevent lengthy litigation,
which is especially important in public law matters.

Rule 6 – Attendance of Officials

If the Government Pleader is unable to answer certain material questions in the case, the court can
direct a relevant Government official to attend and provide the necessary information.

Rule 7 – Extension of Time

In cases where public officers need to refer a matter to the Government for instructions, the court
can grant extensions of time to accommodate such referrals.

Rule 8 – Government Defence in Suits Against Public Officers

When the Government defends a suit against a public officer, the Government Pleader must apply
to the court to formally defend the officer. The court will record the application, and the case will
proceed accordingly.

Landmark Cases on Suits by or Against the Government

Several important judicial decisions have shaped the understanding and application of these
provisions.
1. Jehangir v. Secretary of State (1904): This case clarified that Section 79 of the CPC is
purely procedural and does not provide a cause of action. It only sets the mode for
proceeding with a suit once a cause of action arises.
2. Bihari Chowdhary v. State of Bihar (1984): The Supreme Court held that the object of
Section 80 is to advance justice by giving the Government or public officer an opportunity to
settle the matter before litigation begins.
3. Union of India v. RC Jall: The court held that suits related to railway freight charges can be
instituted by the Union of India, simplifying legal proceedings against the Government in such
matters.
4. Lalchand v. Union of India: This case discussed the waiver of the notice requirement under
Section 80, where the notice is merely procedural and for the benefit of the Government.

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Conclusion
Suits by or against the Government are governed by a well-defined procedural framework in the
Civil Procedure Code. Sections 79 and 80, along with Order XXVII, ensure that the Government is
given due notice and opportunity to settle disputes before they are litigated in court.
These provisions safeguard the interests of the Government while ensuring that citizens can seek
redress through proper legal channels. Understanding these rules and their application is crucial for
both legal practitioners and the public when engaging in lawsuits involving the Government or public
officers.

Writ of summons and mode of its Service

Meaning, Object and Essentials of Summons
In a civil case, the process usually starts with a dispute about some matter or property. This dispute
creates a cause of action, which means a valid reason to go to court. The parties are identified as
the plaintiff (the person filing the case) and the defendant (the person against whom the case is
filed). The court then checks its jurisdiction (whether it has the power to hear the case) and the
value of the suit.
Once this is done, the plaintiff files a plaint (written complaint) in the court. After a suit is filed, the
next and most important step is the issuance of summons. According to law, the summons should
be issued within seven days of filing the plaint. The summons tells the defendant that a case has
been filed against him, and he must file his written statement (reply) within 30 days. Only after
this, the case proceeds further with evidence and arguments.

The importance of summons is that it ensures fair trial. A person cannot be judged without being
heard. So, the summons is the official notice that informs the defendant about the case, giving him a
chance to appear and present his side.
Although the Code of Civil Procedure (CPC) does not define the word "summons," the Oxford
Dictionary explains it as: “a document issued by a court of justice that calls a person to appear
before it for a specific purpose.”
The rules about the issue and service of summons are given in Order 5 of the CPC.

Objective of summons
The following are the objectives of summons
 It is important to inform a person about any legal action that has been taken against them.
 It gives an opportunity to the defendant to present his case and side of the story
 The besis of summons lies in the maxim "Audi Alteram Partem", which means to hear both
sides
 It further helps in following the principles of natural justice and ensures fair proceedings and
trial
 It helps in ensuring the presence of either a witness or accused or any other person who is
involved directly or indirectly in a suit before the court.
 To produce the necessary documents.

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Essentials of summons
The essentials of a summon are given under Order 5, Rules 1 and 2 of the code. These are
 Every summon must be signed by the judge or any other officer whom he appoints to do so
on his behalf.
 It must be sealed properly.
 The court will notissue any summons to the defendant if he has appeared before the court at
the time of the institution of the plaint
 After summons are issued, the defendant is required to file written
 statements within 30 days. If he fails to do so, he has to provide reasons, and if the court is
satisfied, it can extend the time period to file written statements to not more than 90 days.
 Another essential element of summons is that every summon must be accompanied by a
copy of the plaint
 The format of a summons must be according to the prescribed form given in Appendix B of
the First Schedule under the code.

Summons to Defendant
1. Issue of Summons
According to Order 5 Rule 1 CPC, when a suit is filed, the defendant must file his written
statement (reply) within 30 days from the date he receives the summons.
 If he fails, the court may allow extra time (up to 90 days) if there is a valid reason.
 No summons is issued if the defendant was already present when the plaint was filed and he
admitted the plaintiff’s claim.
 Section 27 CPC says that a summons must be issued to the defendant to appear and
answer the plaint.
 Section 28 CPC says that if the defendant lives in another state, the summons will be sent to
the court in that state. That court will serve the summons and then return the report. If there
is a language difference, the records will be translated into Hindi or English.

2. Appearance of Defendant
According to Rule 3 CPC, a defendant can appear in the following ways:
 Personally (in person)
 Through a lawyer (pleader)
 Through a lawyer along with another person to answer questions
The court can also order the defendant to appear personally if necessary.

3. Exemption from Appearance

Some people are exempted from personally appearing in court:
 Section 132 CPC: Certain women, due to customs, cannot be compelled to appear in public.
 Section 133 CPC: High constitutional authorities like the President, Vice-President,
Governors, Speakers, Judges of Supreme Court/High Court, Ministers, etc. are exempt.
Also, Rule 4 CPC says a person is exempt if:
 He lives outside the court’s jurisdiction, or
 He lives more than 50 miles / 200 km away from the court.

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4. Modes of Service of Summons
The purpose of summons is to give the defendant fair notice so he can defend himself. But often
defendants avoid summons, which causes delay in justice. To solve this, the law provides different
modes of service:
(a) Personal/Direct Service
 The summons is given directly to the defendant, his agent, or an adult family member.
 If it is about business, it can be served on the manager/agent.
 If it is about property, it can be served on the person in charge.
 Summons must be served to each defendant separately.
(b) Service by Court (Rule 9 CPC)
 The court officer can serve summons personally.
 It can also be sent by post, email, fax, courier, etc.
 If sent by registered post and the defendant refuses delivery, the court treats it as valid
service.
 In Salem Advocate Bar Association v. Union of India (2005), the Supreme Court directed
courts to ensure summons are served properly.
(c) Service by Plaintiff (Rule 9A CPC)
 With court’s permission, the plaintiff himself can serve summons.
 If the defendant refuses, the court will re-issue the summons.
(d) Substituted Service (Rules 17, 19, 20 CPC)
Used only in exceptional cases when normal service fails:
 Affixing summons on the defendant’s house/door.
 Publishing in a newspaper where the defendant lives or works.
 The court must give reasonable time before the hearing.
(Yallawwa v. Shantavva, 1997 – Substituted service is not ordinary, used only as a last
resort.)
(e) Special Cases (Rules 21–30 CPC)
 Defendant in another state: summons sent to that court.
 Defendant outside India: service via post, email, political agent, or foreign court.
 Public officers/railway officers/local authority employees: served through their head of
department.
 Soldiers/sailors/airmen: served through commanding officer.
 Prisoners: served through prison officer.
 Companies/firms: served to secretary, director, or partner.

5. Refusal of Summons
If the defendant refuses to accept the summons, the court treats it as duly served. (Parvathi
Venkateswara v. Chidamana Venkata, 1976).

6. Objection to Service of Summons

If the defendant has objections to how the summons was served, he must raise them immediately.
If not, the court assumes he has waived his right (Bheru Lal v. Shanti Lal, 1984).

7. Conclusion
Order 5 CPC lays down the complete procedure of issuing and serving summons. The law provides
multiple methods to ensure that the defendant cannot escape notice. Still, in many cases,

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defendants try to avoid summons, which delays proceedings and increases case pendency. Courts
and lawmakers need to make this process quicker to ensure speedy justice.

By Jannat shaikh

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