Question 1: Distinction between Substantive and Procedural Law

Substantive law refers to how facts of each case are handled and how to penalize or
ascertain damages in each case. Whereas, Procedural law refers to the different processes
through which a case proceeds. Substantive laws define the legal relationship between
different individuals, or between individuals and the State. Procedural laws define the rules
with which substantive laws may be enforced.

According to Salmond, the law of procedure may be defined as that branch of the law which
governs the process of litigation. It includes all legal proceedings whether civil or criminal. All
the residue is substantive law, it relates not to the process of litigation but to its purpose
and subject matter

In the case of Commissioner of Wealth Tax, Meerut vs. Sharvan Kumar Swarup & Sons,
the distinction between Substantive and Procedural Laws was made clear:

“As a General Rule, laws which fix duties, establish rights and responsibilities among & for
persons natural or otherwise are Substantive laws, while those which merely prescribe the
manner in which such rights & responsibilities may be exercised & enforced in a Court are
Procedural Laws.”

In the case of Thirumalai Chemicals Ltd. vs. Union of India and others, the Supreme
Court has held that all those laws which affect the substantive and vested rights of the
parties have to be taken as substantive law, whereas any provision of law dealing with the
form of the trial, mechanism of the trial or procedure thereof, has to be treated as
procedural in nature.

❖ Distinction between Substantive and Procedural Laws:

Sl. Points of
Substantive Laws Procedural Law
No. Difference

It establishes rights, obligations

It lays down the means and
and duties of individuals with
01. Definition methods through which
others or individuals with the
substantive law is enforced.
State.

It doesn’t have any

It has independent powers to
02. Powers independent powers to decide
decide the fate of each case.
the fate of each case.

It cannot be applied in non-legal It can be applied in both legal

03. Context
contexts. and non-legal contexts.
 It governs the rights and duties It governs the stages or
04. Governs of individuals. (How people should proceedings of a case. (How
behave?) the case flows?)

It doesn’t exclusively deal with It deals with the happenings

05. Application
proceedings inside a Court. of a Court.

It is regulated by Acts of
It is regulated by Statutory
06. Regulation Parliament or government
laws.
implementation.

❖ Few examples of Substantive and Procedural Laws:

Substantive Laws:

➢ The Indian Contract Act, 1872

➢ The Hindu Marriage Act, 1955
➢ The Hindu Succession Act, 1956
➢ Maternity Benefit Act, 1961
➢ The Transfer of Property Act, 1882
➢ The Factories Act, 1948
➢ Industrial Disputes Act, 1947
➢ The Law of Torts
➢ Code of Civil Procedure, 1908 (the first part that deals with general principles of law)
➢ Negotiable Instruments Act, 1881
➢ The Indian Penal Code, 1860

Procedural Laws:

➢ Code of Civil Procedure, 1908 (the second part that deals with orders with respect to
civil proceedings)
➢ Code of Criminal Procedure, 1973
➢ Law of Evidence, 1872
➢ The Limitation Act, 1963

Recently, The Delhi High Court held in the case, NNR Global Logistics (Shanghai) Co Ltd v
Aargus Global Logistics Pvt Ltd, that the Law of Limitation is a procedural law rather than a
substantive law.

Question 2: Important Definitions under this Code

Section 2 of this Code defines the following:

(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.
After passing the decree, the suit stands disposed of since the rights of the parties are
finally determined by the court.

(3) "decree-holder" means any person in whose favour a decree has been passed or an order
capable of execution has been made;

(5) “foreign Court” means a Court situated 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;

(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 issued 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;

Question 3: Jurisdiction of Civil Court

Section 9 of CPC deals with the jurisdiction of civil courts in India. It says that the
courts shall (subject to the provisions of this code) have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is either expressly or impliedly barred.

Who may decide the jurisdiction? It is well settled that a civil court has inherited power to
decide its own jurisdiction.

❖ Presumption as to Jurisdiction:

In dealing with the question whether a civil court’s jurisdiction to entertain a suit is barred
or not, it is necessary to bear in mind that every presumption should be made in favour of the
jurisdiction of a civil court. The exclusion of jurisdiction of a civil court to entertain civil
causes should not be readily inferred unless the relevant statute contains an express
provision to that effect, or leads to a necessary and inevitable implication of the nature.
❖ Burden of proof:

It is well- settled that it is for the party who seeks to oust the jurisdiction of a civil court to
establish it. It is equally well settled that a statute ousting the jurisdiction of a civil court
must be strictly construed. Where such a contention is raised, it has to be determined in the
light of the words used in the statute, the scheme of the relevant provisions and the object
and purpose of the enactment.

In the case of a doubt as to jurisdiction, the court should lean towards the assumption of
jurisdiction. A civil court has inherent power to decide the question of its own jurisdiction.

❖ Essential elements of Section 9:

A civil court has jurisdiction to try a suit if two conditions are fulfilled:

➢ The suit must be of a civil nature; and

➢ The cognizance of such a suit should not have been expressly or impliedly barred.

❖ Suit of Civil Nature:

The word ‘civil’ has not been defined in the code. But according to the dictionary meaning, it
pertains to private rights and remedies of a citizen as distinguished from criminal, political,
etc. The expression ‘civil nature’ is wider than the expression ‘civil proceedings’. Thus, a suit
is civil in nature, if the principal question therein relates to the determination of a civil right
and enforcement thereof. It is not the status of the parties to the suit, but the subject
matter of it which determines whether or not the suit is of a civil nature.

❖ Nature and Scope of Section 9:

The expression “suit of a civil nature” will cover private rights and obligations of a citizen.
Political and religious questions are not covered by that expression. A suit in which the
principal question relates to caste or religion is not a suit of a civil nature.

But if the principal question in a suit is of a civil nature (the right to property or to an office)
and the adjudication incidentally involves the determination relating to a caste or to religious
rites and ceremonies, it does not cease to be a suit of a civil nature and the jurisdiction of a
civil court is not barred.

In PMA Metropolitan v. M.M. Marthoma, the supreme court explained the concept of
jurisdiction of civil courts under section 9:

➢ The expensive nature of the section is demonstrated by use of phraseology both

positive and negative. The earlier part opens the door widely and latter debars entry
to only those which are expressly or impliedly barred.
➢ The two explanations, one existing from inception and later added in 1976, bring out
clearly the legislative intention of extending operation of the section to religious
matters where right to property or office is involved irrespective of whether any fee
is attached to the office or not. The language used is simple but explicit and clear.
❖ Illustration

The following are suits of a civil nature:

➢ suits relating to rights to property;

➢ suits relating to rights of worship;
➢ suits relating to taking out of religious procession;
➢ suits relating to right to share in offerings;
➢ suits for damages for civil wrongs;
➢ suits for specific performance of contracts or for damages for breach of contracts;
➢ suits for specific relief’s;
➢ suits for restitution of conjugal rights;
➢ suits for dissolution of marriages;
➢ suits for rent;
➢ suits for or on account;
➢ suits for rights of franchise;
➢ suits for rights to hereditary offices;
➢ suits against wrongful dismissal from service and for salaries, etc.

The following are suits not of a civil nature:

➢ suits involving principally caste questions;

➢ suits involving purely religious rites or ceremonies;
➢ suits for upholding mere dignity or honour;
➢ suits for recovery of voluntary payments or offerings;
➢ suits against expulsions from caste, etc.

❖ Cognizance not barred:

as stated above, a litigant having a grievance of a civil nature has a right to institute a civil
suit unless its cognizance is barred, either expressly or impliedly.

1. Suits expressly barred:

A suit is said to be ‘expressly barred’ when it is barred by any enactment for the time being
in force. It is open to a competent legislature to bar jurisdiction of civil courts with respect
to a particular class of suits of a civil nature, provided that, in doing so, it keeps itself within
the field of legislation conferred on it and does not contravene any provision of the
constitution.

Thus, matters falling within the exclusive jurisdiction of revenue courts or under the code of
criminal procedure or matters dealt with by special tribunals under the relevant statutes,
e.g., by industrial tribunal, income tax tribunal, revenue tribunal, electronic tribunal, rent
tribunal, cooperative tribunal, motor accident claims tribunal, etc. or by domestic tribunals,
Bar Council, Medical Council, etc. are expressly barred from the cognizance of a civil court.

But if the remedy provided by a statute is not adequate and all questions cannot be decided
by a special tribunal, the jurisdiction of a civil court is not barred.
 2. Suits impliedly barred:

A suit is said to be impliedly barred when it is barred by general principles of law.

Where a specific remedy is given by a statute, it thereby deprives the person who insists
upon a remedy of any other form than that given by the statute. Where an act creates an
obligation and enforces its performance in a specified manner, that performance cannot be
enforced in any other manner.

Similarly, certain suits, though of a civil nature, are barred from the cognizance of a civil
court on the ground of public policy. Thus, no suit shall lie for

➢ recovery of costs incurred in criminal prosecution; or

➢ for enforcement of a right upon a contract hit by Section 23 of the Indian Contract
Act, 1872; (i.e., Legal objects) or
➢ against any judge for acts done in the course of his duties.

❖ Exclusion of Jurisdiction of Civil Courts:

In the case of Dhulabhai v. State of M.P., after considering a number of cases, Hidyatullah
C.J. summarized the following principles relating to the exclusion of jurisdiction of civil
courts:

1. A civil court has jurisdiction to try all suits of a civil nature unless their cognizance is
barred either expressly or impliedly.
2. Consent can neither confer nor take away jurisdiction of a court.
3. A decree passed by a court without jurisdiction is a nullity and the validity thereof
can be challenged at any stage of the proceedings, in execution proceedings or even in
collateral proceedings.
4. There is a distinction between want of jurisdiction and irregular exercise thereof.
5. Every court has inherent power to decide the question of its own jurisdiction.
6. Jurisdiction of a court depends upon the averments made in a plaint and not upon the
defense in a written statement.
7. For deciding jurisdiction of a court, substance of a matter and not its form is
important.
8. Every presumption should be made in favour of jurisdiction of a civil court.
9. A statute ousting jurisdiction of a court must be strictly construed.
10. Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it.
11. Even where jurisdiction of a civil court is barred, it can still decide whether the
provisions of an act have been complied with or whether an order was passed de hors
the provisions of law.

❖ Kinds of Jurisdiction:

Jurisdiction, as stated above, can be classified into three categories, viz., (1) jurisdiction
over the subject-matter; (2) territorial jurisdiction; and (3) pecuniary jurisdiction.
 1. Pecuniary Jurisdiction:

Section 15 of this Code deals with “pecuniary jurisdiction” it states that every suit shall
be instituted in the Court of the lowest grade competent to try it.

The word competent to try indicate the competency of the court with respect to the
pecuniary jurisdiction. It means, the courts of lowest grade who has the jurisdiction with
respect to pecuniary value shall try the suit at first.

Now, the biggest question is, who will determine the valuation of the suit for the purpose of
determining the pecuniary jurisdiction of the court. In general, it is the valuation done by the
plaintiff, unless the court from the very face of the suit find it incorrect.

So, if the court finds that the valuation done by the plaintiff is not correct, that is either
undervalued or overvalued, the court will do the valuation and direct the party to approach
the appropriate forum.

2. Territorial Jurisdiction:

Section 16-20 of this Code deals with “territorial jurisdiction”. Every court has its own
limits, fixed by the State Government, beyond which it cannot exercise its jurisdiction. Thus,
the District Judge is in charge of the district and cannot exercise his power beyond that
district. The Munsif Courts are in charge of the areas assigned to them. The High Court has
jurisdiction over the whole territory of the State.

3. Jurisdiction over the subject-matter:

Different courts have been empowered to decide different types of suits. Certain courts
have no jurisdiction to entertain certain suits. It means that some courts are banned from
hearing cases of a certain nature. No question of choices can be decided by the court which
do not have subject matter jurisdiction.

4. Original or Appellate Jurisdiction:

The jurisdiction of a court may again be Original or Appellate. In the exercise of its original
jurisdiction a court entertains original suits, while in the exercise of its appellate jurisdiction
it entertains appeals.

The Munsif courts have only original jurisdiction; the District courts and the various High
Courts have both original and appellate jurisdiction.

Question 4: Doctrine of Res Sub Judice

Sub Judice means ‘under judgment’. It implies that a matter is being considered by court or
judge. When two or more cases are filed between the same parties on the same subject
matter, in two or more different Courts, the competent court has power to “Stay
Proceedings” of another Court.
The doctrine of res sub judice aims to prevent courts of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations with respect to the
same cause of action, same subject matter and same relief claimed.

In order to ensure that the courts’ time is effectively used as well as justice for all is
obtained, this doctrine plays an important role.

❖ Application of Res Sub Judice in India

Section 10 of Civil Procedure Code defines ‘Stay of suit’ as follows:

“No Court to proceed with trail of any suit in which the matter in issue, is also directly and
substantially in issue. In previously instituted suit between the same parties, or between
parties under whom they or any of them claim, litigating under the same title, where such suit
is pending in same or any other Court, in India, Having jurisdiction to grant relief claimed.”

Explanation: The pendency of a suit in a Foreign Court doesn’t preclude the Courts in India
from, trying a suit founded on same cause of action.

❖ Scope and Objective of section 10

1. Section 10 deals with the concept of Res Sub Judice.

2. The object of Section 10 is to prevent Courts of concurrent jurisdiction from

simultaneously, trying two parallel cases, in respect of same matter in issue. The two
fold objects are:

➢ Avoid wasting Court Resources.

➢ Avoid conflicting decisions.

❖ Essential elements of this doctrine or Section 10:

The following are the essentials of doctrine of Res Sub Judice:

1. The matter in issue must be substantially same in both the cases;

2. Previously instituted suit must be pending in the same or any other court competent to
grant:
➢ Relief claimed in the suit;
➢ Relief claimed in subsequent the suit;
3. Suits to the parties are to be the same or between parties under whom they or any of
them claim, litigating under the same title;
4. Pendency of suit in Foreign Court doesn’t activate Section 10 CPC;
5. If suit is pending before a Court and subsequently an application is filed before a
Thasildhar, it doesn’t invoke Section 10 as Thasildhar is not a “Court”;
6. Any decree passed in violation of Section 10 is null and void.

Illustration: “A”, an agent of “B” at Delhi agreed to sell B’s goods in Chennai. “A”, the agent
files suit for balance of accounts in Chennai. “B” sues the agent “A” for accounts and his
negligence in Delhi; while case is pending in Chennai. In this case, Delhi Court is precluded
from conducting trail and “A” can petition Chennai Court to direct stay of proceedings against
Delhi Court.

In the case of Escorts Const. Equipment Ltd V Action Const. Equipment Ltd, the Court
Stated the conditions requisite to invoke Section 10 are:

➢ Matter in issue in both the suits to be substantially the same.

➢ Suit to be between the same parties or parties litigating under them
➢ Previously instituted suit to be in the same Court or a different Court, which has
jurisdiction to grant the relief asked.
➢ There is nothing to the effect that defendant should not question the competency of
previous Court in the previously instituted suit.

Question 5: Doctrine of Res Judicata

In Latin, Res Judicata means a matter that has been judged. When a case has already
been decided and the final judgement been given such that the matter is no longer subject to
appeal, the doctrine of res judicata bars or precludes continued litigation of such matter
between the same parties.

In order to ensure that the courts’ time is effectively used as well as justice for all is
obtained, these doctrines play an important role. They do this by ensuring that a suit ends
after the judgment is passed and that the same suit on the same subject matter is not filed
multiple times. This ensures smooth functioning of the judiciary.

Res judicata or the rule of conclusiveness of the judgment has been embodied in the
Indian law under Section 11 of the code of Civil Procedure, 1908, it states that;

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

In the case of Satyadhyan Ghosal v. Deorjin Debi, Hon’ble Justice Das Gupta explained the
doctrine of Res Judicata as;

“The principle of res judicata is based on the need of giving a finality to judicial decisions.
What it says is that once res is judicata, it shall not be adjudged again. Primarily it applies as
between past litigation and future litigation.”

❖ Essential elements of this doctrine or Section 11:

According to this section, no court shall try any suit or issue in which:

➢ The matter in issue (directly and substantially) has been directly and substantially in
issue in a former suit
 ➢ Such matter in the former suit had been between the same parties or between parties
claiming under them
➢ The matter must be litigated under the same title in a court competent to try such
suit or a suit in which the matter has been subsequently raised and has been heard
and finally decided by such court

It must be noted that Section 11 is a mandatory provision and not directory in nature. The
only exception in which a former suit can be avoided is by taking recourse of Section 44 of
the Indian Evidence Act, 1872 on grounds of fraud or collusion. In the case of Jallur Venkata
Seshayya v. Tahdaviconda Koteswara Rao, the court held that, gross negligence in former
suit doesn’t amount to fraud or collusion and thus acts as bar to subsequent suit.

In Slochana Amma v. Narayana Nair, the court held, the doctrine of res judicata applies to
quasi-judicial proceedings before tribunals also.

In the case of Sunil Dutt v Union of India, it was held that habeas corpus, filed under fresh
grounds and changed circumstances will not be barred by a previous such petition.

❖ Applications of Res Judicata:

The doctrine of res judicata can be invoked even in the subsequent stage of the same
proceedings.

In the case of Y.B. Patil v. Y.L. Patil, the court held that once an order is made in the
course of the proceedings, it becomes final and therefore would be binding upon the parties
at any subsequent stages of the same proceedings.

This doctrine can also apply against co-defendants. In the case of Mahaboob Sahab v Syed
Ismail, the court held the following four conditions must be satisfied for the application of
res judicata:

➢ there must be a conflict of interest between the defendants concerned.

➢ it must be necessary to decide such conflicts, in order to give relief to the plaintiff
➢ the questions between the defendants to be finally decided.
➢ co-defendants to be necessary and proper parties to the suit.

Further, this doctrine can be applied even between co-plaintiffs. In the case
of Iftikhar Ahmed v. Syed Meharban Ali, the court held that if the following conditions
are satisfied res judicata will be applicable:

➢ there must be a conflict of interest between the co-plaintiffs

➢ it must be necessary to decide such conflicts, in order to give relief to the plaintiff
➢ the questions between the plaintiffs to be finally decided.
 Question 6: Difference between Res Sub Judice & Res Judicata

SL. Res Sub Judice Res Judicata

NO.
1 Res Sub judice applies in a matter which is Res judicata applies to a decided or
pending. adjudicated matter.

2 It bars trial of a suit which is a pending It bars the trial of a suit or an issue
decision in a previously instituted suit. which has already been decided in a
former suit.

3 Section 10 of the Code exclusively deals Section 11 of the Civil Procedural Code,
with the principle of res sub judice. 1908 deals with res judicata.

4 Conditions: Conditions:

1. There must be presence of two 1. A court of competent

suits one which was formerly jurisdiction must have given the
instituted and other which was decision in the former instituted
subsequently instituted. suit.
2. The issues in the subsequent suit 2. The matter in issue in the
should be directly or substantially subsequent suit must be same
be the same with the previous suit. which is directly or substantially
3. The parties in both the suits should in issue in the former suit.
be same. 3. The parties should be same in
4. The court in which the previous both the suits.
suit was instituted must be a court 4. The court which gave decision in
which has competent jurisdiction to former suit must be a court of
try such suit. competent jurisdiction.
5. The title should also be the same in 5. The parties in the former suit
both the suits under which they must have litigated under the
are litigating. same title or in other words in
the same capacity.

Question 7: Difference between Set-Off and Counterclaim

The distinction between a set off and counterclaim are as follows:

1. Set off is defined under rule 6 order 8 of CPC whereas, Counterclaim is defined or
explained under rule 6A-6G of order 8;
2. Set off is two kinds, 1. Legal set-off and 2. Equitable set-off whereas, counterclaim
has no such classification or kinds;
3. Set off is a statutory defence to a plaintiff s action, whereas counterclaim is
substantial a cross action;
 4. Set off must be for the same transactions or it must be for an ascertained sum
whereas a counterclaim need not arise out of the same transaction;
5. The amount of set off must be recoverable at the date of suit, whereas counterclaim
must be recoverable at the date of the written statement;
6. Set off is a ground of Defence to plaintiff's action, as a shield, whereas the
counterclaim is a weapon of offence, a sword, which enables the defendant to enforce
the claim against the plaintiff effectively as an independent action;
7. When the defendant demands in plaintiff's suit an amount below or up to the suit cum
it is a set off strict sensu, but when it is for a large amount, the claim tor excess
amount is really counterclaim.

Question 8: Foreign Judgements

The Code of Civil Procedure, 1908 lays down the procedure for enforcement of foreign
judgments and decrees in India. Section 2 of the Code defines:

➢ “foreign Court” as a Court situate outside India and not established or continued by
the authority of the Central Government.
➢ “foreign judgment” as the judgment of a foreign Court.

❖ Nature and Scope of Foreign Judgments:

Section 13 & 14 of the Code deals with foreign judgements. It embodies the principle of
res judicata in foreign judgments. It embodies the principle of Private International law that
a judgment delivered by a foreign court of competent jurisdiction can be executed and
enforced in India.

❖ Conclusiveness of Foreign Judgments:

Section 13 lays down the fundamental rules which should not be violated by any foreign
court in passing a decree or judgment. The decree or judgment of foreign court will be
conclusive except where it comes under any of the clauses (a) to (f) of Section 13, they are
as follows:

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

b) Where it has not been given on the merits of the case;
c) Where it appears on the face of the proceedings to be founded on an incorrect view
of international law or a refusal to recognize the law of India in cases in which such
law is applicable;
d) Where the proceedings in which the judgment was obtained are opposed to natural
justice;
e) Where it has been obtained by fraud;
f) Were it sustains a claim founded on a breach of any law in force in India.
In Brijlal Ramjidas v. Govindram Gordhandas Seksaria, Supreme Court held that Section 13
speaks not only of “Judgment” but “any matter thereby directly adjudicated upon”. The
word ‘any’ clearly shows that all the adjudicative parts of the judgment are equally conclusive.

❖ Presumption as to foreign judgments:

Section 14 of the Code deals with Presumption as to foreign judgments, it states

that the Court shall presume, upon the production of any document, certified copy of a
foreign judgment, that such judgment was pronounced by a Court having competent
jurisdiction, unless the contrary appears on the record.

Question 9: Place of Suing/ Place of Suits or Jurisdiction of Civil

Courts
Section 15 to 20 of Civil Procedure Code, 1908 deals with the place of suing. There are
three kinds of jurisdiction to determine the place of suing:

➢ Territorial jurisdictions
➢ Pecuniary jurisdictions
➢ Subject matter jurisdiction

Whenever the suit is brought before the court the first question is to determine is whether
the court has a jurisdiction to deal with the matter. If the court has these territorial,
pecuniary or subject matter jurisdiction then only the court has the power to deal with the
case. In the case, if the court does not have any of the above-mentioned factors then it will
be considered as lack of jurisdiction or the irregular exercise of jurisdiction. When the court
which does not have jurisdiction to decide the case and render judgement then such
judgement will be considered as void or voidable depending upon the different circumstances.

A. Pecuniary Jurisdiction:

Section 15 of this Code deals with “pecuniary jurisdiction” it states that every suit shall
be instituted in the Court of the lowest grade competent to try it.

The word competent denotes that the court must have the power to hear the case with
regards to pecuniary jurisdiction. The court of lowest grade who has a jurisdiction with
regards to pecuniary value shall deal with the case at first instance.

Now, the biggest question is, who will determine the valuation of the suit for the purpose of
determining the pecuniary jurisdiction of the court. In general, it is the valuation done by the
plaintiff, unless the court from the very face of the suit find it incorrect.

So, if the court finds that the valuation done by the plaintiff is not correct, that is either
undervalued or overvalued, the court will do the valuation and direct the party to approach
the appropriate forum.

The jurisdiction of the court is decided by the plaintiff valuation but not the amount for
which decree is passed. Let’s us understand from an example, if the court has a pecuniary
jurisdiction of Rs 15000 and the suit for recovery of accounts is filed on the valuation of suit
done by the plaintiff. The valuation was of Rs 15000. Later the courts find that Rs 20000 is
due, in this case, the court is not deprived of its jurisdiction to pass a decree for that
amount.

When the court finds that valuation is done improperly for the purpose of avoiding the
jurisdiction of the appropriate court, the court may require the plaintiff to prove that
valuation was done in a proper manner.

B. Territorial Jurisdiction:

Section 16-20 of this Code deals with territorial jurisdiction. It can be divided into the
following:

➢ Suits related to immovable property; (Section 16 to 18)

➢ Suits related to Movable property; (Section 19)
➢ Other suits. (Section 20)

❖ Suits related to immovable property; (Section 16 to 18)

1. Section 16:

Section 16 states that the suit related to immovable property shall be instituted where
such immovable property is situated.

It talks about the institution of the suit with respect to:

➢ Recovery of immovable property with or without profit or rent;

➢ Partition of immovable property;
➢ Foreclosure, sale or redemption in case of charge or mortgage upon immovable
property;
➢ Compensation for a wrong caused to immovable property;
➢ Determination of any interest or rights related to immovable property;
➢ Recovery of movable property under attachment or distraint, for all the above-
mentioned purpose.

When the suit is filed for the relief or compensation for wrong caused to immovable property
held by a defendant or any other person on the behalf of a defendant, where the relief can
be obtained through his personal attendance then suits may be instituted in a court within
whose local jurisdiction:

➢ the property is situated, or

➢ the defendant voluntarily and actually resides or carries on business or personally for
gains.

2. Section 17:

Section 17 deals with cases in which the immovable property is situated within the local
limits of the jurisdiction of different courts.
When the suit is filed for obtaining the compensation or relief for the wrong caused to
immovable property situated within the jurisdiction of two or more courts, the suit may be
filed in any court within whose local jurisdiction a portion of the property is situated. But in
respect for the value of subject matter of the suit, the entire claim is cognizable by such
court.

3. Section 18:

Section 18 deals with place of institution of suit when the jurisdiction of courts is
uncertain.

When there is uncertainty with regards to the local limits or jurisdiction of courts, and any
of the courts has satisfied that there is a ground for uncertainty, the court may record the
statement and proceed with the case to entertain and dispose of the case. The decree
passed by such court will have the same effect as if the property was situated within the
local limits of its jurisdiction.

In a case where the court taking the cognizance of case does not record the statement and
objection is brought before Appellate or Revisional Court, the Appellate or Revisional court
shall not allow the objections unless it is satisfied that at the time of institution of suit
there was no reasonable ground for uncertainty as regards to jurisdiction of Court and there
has been a failure of justice.

❖ Suits with regard to Movable Property; (Section 19)

Suits with regard to movable property is applicable, where the suit is for the wrong caused to
the person or property.

➢ Conditions of Section 19:

✓ If the wrong was done within the local limits of the jurisdiction of one court
✓ The defendant voluntarily resides or carries on his business or works for personal gain
within the local limits of the jurisdiction of another court then the plaintiff has an
option to file at either court.

➢ Illustration:

A, residing in Delhi, beats B in Bangalore. B may institute the suit either in Delhi or
Bangalore. A residing in Bangalore, publishes a defamatory statement of B in Delhi. B may sue
A in Bangalore or Delhi.

❖ Other suits; (Section 20)

Section 20 deals with other suits to be instituted where defendants reside or cause of
action arises. This Section is applicable when there is a breach of contract or commercial
transactions

➢ Conditions of Section 20:

✓ If the breach of contract was done or cause of action arises within the local limits of
the jurisdiction of one court;
 ✓ Defendant voluntarily resides, carries on his business or works for personal gains
within the local limits of the jurisdiction of another court the plaintiff has an option
to file at either court.

➢ Illustration:

C is a tradesman in Bangalore, D carries on business in Hyderabad. D, by his agent in

Bangalore, buys goods from C and requests C to deliver them to D’s Company. C delivers the
goods in Bangalore accordingly. C may sue for the price of goods either in Bangalore where
the cause of action arises or in Hyderabad where D carries on his business.

Question 10: Transfer of Cases

When in doubt, a plaintiff has an option to pick his very own adjudicating authority where a
suit can be instituted. Regularly, this privilege of the plaintiff can’t be reduced, controlled or
meddled with. When the defendant gets to know the purpose of application he may apply for
the transfer of the case. The court may also consider the objection if any, made by the
plaintiff in relation to such transfer. And further, after the clearance of the objection, the
court will transfer the case in a court that is competent to deal with that case.

Section 22-25 of Civil Procedure Code, 1908 deals with the provisions of transfer of
suit. Section 22 and 23 are related to each other. Section 22 defines the power of the
defendant to apply for transfer of cases and section 23 lays down the conditions where the
application of transfer can be made.

❖ Transfer of Suit:

According to Section 22, When a suit has been instituted by a plaintiff in one civil of his
choice, there may be two choices available to the defendant: either to file his written
statement, i.e. accepting the jurisdiction of the court or to file application for transfer of
the suit.

Section 22 and 23 of CPC confers power of the civil court to transfer suits from one civil
court to another on the application of the defendant.

❖ Section 23: To what court application lies

This Section lays down the conditions where the application of transfer can be made. They
are as follows:

❖ The suit or other proceeding must have been pending in a court competent to try it.
❖ The transfer court must be subordinate to the court making transfer order.
❖ The transferee court should be competent to try or dispose of the suit, where
competency does not only include pecuniary but also territorial competency.

❖ General Power of Transfer and Withdrawal

Section 24 deals with general power of transfer and withdrawal:

 ➢ On receiving application by any of the parties and giving notice to parties and even
without receiving the application the High Court or District Court at any stage
whether trial, proceeding or hearing.
➢ Transfer any civil case whether pending or decided or at trial stage to the
subordinate court but capable of dealing with that matter.
➢ The District Court or the High Court also has the power to withdraw the case whether
pending for proceeding, or decided for trial purpose and can transfer it to any court
which is subordinate to it but capable of dealing with that matter.
➢ Where the suit or proceeding is transferred, the court can start the proceeding from
the point where it is transferred or can start from the beginning.
➢ For the purpose of this section, courts of additional and assistant judges shall be
subordinate to the district court.

Duty of the court: When the transfer is made on an application, the court must act judicially,
guided by a sense of justice, on considering objectivity and not subjectivity.

❖ Power of Supreme Court to transfer suits, etc.

Section 25 deals with power of Supreme Court to transfer suits:

➢ On the application of a party, and after notice to the parties, and after hearing such
of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that
an order under this section is expedient for the ends of justice, direct that any suit,
appeal or other proceeding be transferred from a High Court or other Civil Court in
one State to a High Court or other Civil Court in any other State.
➢ Every application under this section shall be made by a motion which shall be
supported by an affidavit.
➢ The Court to which such suit, appeal or other proceeding is transferred shall, subject
to any special directions in the order of transfer, either retry it or proceed from the
stage at which it was transferred to it.
➢ In dismissing any application under this section, the Supreme Court may, if it is of
opinion that the application was frivolous or vexatious, order the applicant to pay by
way of compensation to any person who has opposed the application such sum, not
exceeding two thousand rupees, as it considers appropriate in the circumstances of
the case.
➢ The law applicable to any suit or other proceeding transferred under this section shall
be the law which the Court in which the suit, appeal or other proceeding was originally
instituted ought to have applied to such suit, appeal or proceeding.

Question 11: Order 1: Parties to the Suit

In a civil suit, the presence of both the Plaintiff and Defendant is essential to institute a
suit.
Plaintiff is the person whose legal right has been infringed and who has filed suit for its
enforcement, he files suit by presenting plaint in the Court. The plaint contains cause of
action, allegations on defendant and claims remedies against defendant.

Defendant is the person who infringed plaintiff's legal right and has been sued by plaintiff.
In his reply to the plaint, he presents written statement, it contains the defendant’s claims
and defence.

Order 1 of Civil Procedure Code, 1908 deals with parties to the suit. It contains 13
Rules, some of them are discussed below:

❖ Joinder of parties:

Joinder of parties means joining several parties as plaintiffs or defendants in the same suits.
All or any of those persons can be joined as plaintiffs or defendants in whom the right to any
relief is alleged to exist, or who is alleged to possess any interest in the subject-matter of
litigation, or in the opinion of the court, is a proper or a necessary party

Joinder of parties means joining a person as a party either as plaintiff or defendant. If

there is common grievance or claim, they may be joined in one suit. One or more plaintiff may
file a suit against one or more defendant

1. Rule 1: Joinder of plaintiff

More than one plaintiff may be joined in a suit. All persons can be joined in one suit as
plaintiff where:

➢ Any right to relief in respect of, or arising out of, the same act or transaction or
series of acts or transactions is alleged to exist in such persons, whether jointly,
severally or in the alternative; and
➢ If such persons brought separate suits, any common question of law or fact would
arise.

2. Rule 2:

Where it appears to the Court that, any joinder of plaintiffs may embarrass or delay the
trial of the suit, the Court may put the plaintiffs to their election or order separate trial.

3. Rule 3: Joinder of defendant

More than one defendant may be joined in a suit. All persons can be joined in one suit as
defendant where:

➢ Any right to relief in respect of, or arising out of, the same act or transaction or
series of acts or transactions is alleged to exist against such persons, whether jointly,
severally or in the alternative; and
➢ If separate suits were brought against such persons, any common question of law or
fact would arise.

If there are more defendants, it shall not be necessary that every defendant shall be
interested as to all the relief claimed in any suit against him.
 4. Rule 3A; Power of the Court to order separate trials

Where it appears to the Court that any such joinder may embarrass or delay the trial, the
Court may order separate trials or make such other order as may be expedient in the
interest of justice.

❖ Representative Suits:

In a suit if there are numerous persons having the same interest in one suit, one or more of
such persons may, with the permission of the Court, sue or be sued, or may defend such suit,
on behalf of, or for the benefit of, all persons so interested; such a suit is called the
‘representative suit’. Rule 8 deals with representative suits.

Formalities to be followed:

➢ In such case, the permission of the Court must be obtained.

➢ The plaint must show that the suit is representative in character.
➢ The court shall, in every case where a permission or direction is given, at the
plaintiff’s expense, give notice of the institution of the suit to all persons so
interested, either by personal service, or, where, by reason of the number of persons
or any other cause, such service is not reasonably practicable, by public
advertisement, as the court in each case may direct.
➢ Any person on whose behalf, or for whose benefit, a suit is instituted, or defended,
may apply to the court to be made a party to such suit.
➢ Where any person suing or defending in any such suit does not proceed with due
diligence in the suit or defence, the court may substitute in his place any other person
having the same interest in the suit.
➢ A decree passed in a suit under this rule shall be binding on all persons on whose
behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.

❖ Misjoinder and Non-joinder:

Non-Joinder: Non-joinder can be defined as an omission to join some person as a party to a

suit. The Code of Civil Procedure does not define non-joinder. Still, it lays down, "No suit
shall be defined by reasons of non-joinder of parties, and the court may in every suit deal
with the matter in controversy so far as regards the rights and interests of the parties
actually before it."

Misjoinder: When any party or parties are added mistakenly to the suit under code of civil
procedure, 1908 are terms as misjoinder. And the party which was added mistakenly to the
suit or misjoinder has nothing to do so with the suit then in that condition the party added
mistakenly are known as misjoinder.

Misjoinder of causes of action can be further categorized into three parts namely:

➢ Misjoinder of plaintiffs and causes of action.

➢ Misjoinder of defendants and causes of action.
➢ Misjoinder of the claim.
When a person is not joined as party to suit is called as non-joinder of party whereas, a
person who is neither necessary nor proper party; is joined as party is called as misjoinder of
party. Rule 9 and 13 deals Misjoinder and Non-joinder:

➢ Rule 9 state that no suit can be defeated by reason of the misjoinder and non-joinder
of parties unless such party is a necessary party.
➢ Rule 13 says that all objections regarding the misjoinder and non-joinder of parties
shall be taken at the earliest possible opportunity and, in all cases where issues are
settled, at or before such settlement.

Question 12: Order 4: Institution of Suits

Section 26 and Order 4 of Civil Procedure Code, 1908 contain the provisions relating to
the institution of a suit.

❖ Section 26: Institution of Suits

Section 26 provides that every suit shall be instituted by the presentation of a plaint or in
such other manner as may be prescribed. Further it states that in every plaint, facts shall be
proved by affidavit.

❖ Order 4: Institution of Suits

Order 4 contains only two rules, they are as follows:

➢ Rule 1: Suit to be commenced by plaint;

➢ Rule 2: Register of suits.

1. Rule 1: Suit to be commenced by plaint:

Rule 1 lays down the procedure for institution of suit; it states the following:

➢ Every suit shall be instituted by presenting a plaint in duplicate to the Court or such
officer as it appoints in this behalf.
➢ Every plaint shall comply with the rules contained in Order 6 and 7, so far as they are
applicable.
➢ The plaint shall not be deemed to be instituted unless it complies with the
requirements specified in sub-rules (1) and (2).

2. Rule 2: Register of suits:

Rule 2 states that the Court shall maintain a book called as “the Register of Civil Suits” and
the particulars of every suit shall be entered in it. Such entries shall be numbered in every
year according to the order in which the plaints are admitted.

The plaint may be presented either by the affected person himself (i.e., plaintiff), or by his
advocate or by his recognised agent or by any person duly authorised by him. A proceeding
which does not commence with a plaint is not a suit within the meaning of Section 26 and Rule
1 of Order 4.
Generally, the presentation of a plaint must be made on a working day and during the office
hours. However, there is no rule that such presentation must be made either at a particular
place or at a particular time. A judge, therefore, may accept a plaint at his residence or at
any other place even after office hours, though he is not bound to accept it. But if not too
convenient, the judge must accept the plaint, if it is the last day of limitation.

Thereafter, the particulars of a suit will be entered by the court in a book kept for the said
purpose, called the Register of Civil Suits. After the presentation, the plaint will be
scrutinised by the Stamp Reporter. If there are defects, the plaintiff or his advocate will
remove them. Thereafter the suit will be numbered.

Question 13: Order 5: Summons

Where a suit is duly instituted, a summons may be issued to defendant to appear and answer
the claim on a day specified in the summons. Summons is not defined in this Code. A summons
is document issued by the Court where suit is instituted, to call defendant and answer the
claim.

On receipt of such summons, the defendant is obliged to follow the same and appear before
the court for the purpose mentioned in the summons on the specified date and time.

Section 27-31 and Order 5 of Civil Procedure Code, 1908 contain provisions relating to
Summons.

Section 27 states that, if the suit is properly instituted then the court may issue summons
to defendant to appear and answer the claim in the manner as prescribed.

❖ Order 5: Issue and service of summons

Rules 1 to 8 specifically deal with the issue of summons and Rules 9 to 30 deal with the
service of summons and various catena in service of summons. These provisions explain when
the summon should be issued by the court and documents or information that should be
contained in the summons document. Further, it explains how it should be served and ensure
that the service is complete.

1. Rule 1

According to Order 5, Rule 1 of this Code, no summons shall be issued when defendant has
appeared at the presentation of the plaint and admitted the plaintiff's claim.

➢ Sub Rule 1 of Rule 1:

When a suit has been duly instituted, a summons may be issued to the defendant to appear
and answer the claim and to file the written statement of his defence, if any, within thirty
days from the date of service of summons on that defendant, if he fails to, then it may be
extended upto 90 days from the date of serving of summons.
Further, if the subject matter of the suit is related to commercial dispute of a specified
value, then it may be extended to 120 days from the date of serving of summons.

➢ Sub Rule 2 of Rule 1:

A defendant to whom a summons has been issued under sub-rule (1) may appear:

✓ in person, or
✓ by a pleader duly instructed and able to answer all material questions relating to the
suit, or
✓ by a pleader accompanied by some person able to answer all such questions.

➢ Sub Rule 3 of Rule 1:

Every such summons shall be signed by the Judge or such officer as he appoints, and shall be
sealed with the seal of the Court.

2. Rule 2:

Every summons must be accompanied with a copy of plaint or a concise statement.

3. Modes of Service of Summons:

If there are more defendants, summons shall be served on each defendant. Defendant, after
receiving copy of summons, he shall be required to sign acknowledgement on original summons.

➢ Rule 12:

Wherever it is practicable serving of summons shall be made to the defendant in person,

unless he has an agent empowered to accept service. [Order V, Rule 12]

➢ Rule 13 and 14: Service on agent

Where suit is in relation to business or work against person who does not reside within the
local limits of the Court from which summons is to be served; service may be made on his
manager or agent, who is actually working at that time.

Where suit is to obtain relief respecting or compensation for wrong to immovable property,
service of summon cannot be made on defendant in person; service may be made on agent of
the defendant in charge of the property.

➢ Rule 15: Service on adult member of family

Where defendant is absent at the time when service of summons is to be affected and there
is no likelihood of his being found at the residence within a reasonable time and he has no
agent; then service may be made on any adult member of the family, whether male or female.
A servant is not considered as family member.

➢ Rule 17: By affixing

Service of summons by affixing is made when:

✓ where defendant or his agent or such other person refuses to sign acknowledge; or
 ✓ where the serving officer after due diligence cannot find defendant and there is no
agent to accept summons; nor any other person on whom service can be made.

Then serving office shall affix a copy of the summons on the:

✓ outer door; or
✓ some other conspicuous (noticeable) part of the house in which defendant ordinarily
resides or carries on business or personally works for gain, and
✓ shall then return the original to the Court from which it was issued.

➢ Rule 24: Service on defendant in prison

Where the defendant is confined in a prison, the summons shall be delivered or sent by post
or otherwise to the officer in charge of the prison for service on the defendant.

➢ Rule 25: Service where defendant resides out of India and has no agent

Where the defendant resides out of India and has no agent in India empowered to accept
service, the summons shall be addressed to the defendant at the place where he is residing
and sent to him by post, if there is postal communication between such place and the place
where the Court is situated.

➢ Rule 27: Service on civil or public servant or on railway officer or on servant of railway
company or local authority

Where the defendant is a public officer (not belonging to the Indian military naval or air
forces), or is the servant of a railway company or local authority, the Court may, if it appears
to it that the summons may be most conveniently so served, send it for service on the
defendant to the head of the office in which he is employed together with a copy to be
retained by the defendant.

➢ Rule 28: Service on soldiers, sailors or airmen

Where the defendant is a soldier, sailor or airman, the Court shall send the summons for
service to his commanding officer together with a copy to be retained by the defendant.

➢ Service by E-mail:

With the passage of time and development of technology, the courts have been inclined to
use electronic means to serve summons and notices to save time and money. In the case of
Central Electricity Regulatory Commission v. National Hydroelectric Power Corp. Ltd.,
the apex court allowed the service of a notice through email but ordered that a copy should
also be sent through post.

➢ Service through WhatsApp:

In the case of Ruma Pal v. Kumar, the defendant husband had fled to Australia to avoid any
suit filed by his wife for domestic violence and it was very difficult to serve summons while
he was in Australia. Justice Surabhi Sharma of the Delhi High Court allowed the plaintiff
to serve the summons through WhatsApp and also held that double tick on WhatsApp shall be
the conclusive proof of the receipt of the summons.
 Question 14: Order 6: Pleading
Pleading is the foundation of any litigation. It is the beginning stage of a suit, in which parties
to the suit formally submit their claims and defences. In this plaintiff files a plaint stating
the cause of action, issue or issues in controversy and defendant files a written statement,
replying to the plaint stating his defence and claims. It is a formal statement usually written,
setting forth the cause of action or defence of a case.

❖ Civil Procedure Code, 1908 provisions relating to Pleading:

Order 6, Rule 1-18 contains provision relating to pleading.

➢ Rule 1 defines pleading as a plaint or written statement;

➢ Rule 2 lays down the fundamental principles of pleading;
➢ Rule 3-13 require the parties to supply necessary particulars;
➢ Rule 14 to 15 provide for signing and verification of pleading;
➢ Rule 16 empowers a court to strike out unnecessary pleading;
➢ Rule 17 and 18 deals with amendment of pleading.

❖ Basic of Fundamental Rules of Pleading

Sub Rule (1) of Rule 2 lays down Basic Rules of pleading, they are as follows:

1. Pleading should state facts not law:

Pleadings ought to state the facts of the case and not the legal provisions applicable the
case.

In Kedar Lal vs. Hari Lal, the apex court held that the parties to a civil suit are obliged only
to state only facts on which they are claiming their rights, compensation or defence and it
shall be duty of the court to apply the law as per the facts stated in the pleadings to render
justice.

For instance, in an illustration where A complained about B hitting him. A should explain only
what caused the Fight, what was A’s role in the fight, why did B hit him and should not
explain what offence has been committed by B by hitting A and which provision should apply
and what procedure should be followed.

2. Material facts should be pleaded:

Pleadings must contain only material facts. This the essential rule which states that facts
which are material should find a place in pleading. The question that remains is what
constitutes material fact and which fact is immaterial. There is no specific definition of the
expression material fact either in the CPC or any other law.

Nevertheless, in Udhav Singh v. Madhav Scindina, the apex court has explained the meaning
of material fact as material facts all those primary facts that are relied on by the parties
either to substantiate their claims and establish their cause of action for their effective
defence or counterclaim against the claiming Patty.
It has been observed by the couch that what type of facts or information would amount to
material fact is a subjective issue and shall be determined by the court on a case-to-case
basis depending on the circumstances of the case.

In Union of India vs. Sita Ram, the court held that material facts are all facts upon which
plaintiffs cause of action or defendant’s defence depends or all those facts which must be
proved to establish the plaintiff right to relief in the plaint or defendant’s defence or claim
in the written statement.

3. Evidence should not be included in pleading:

Pleadings should contain the relevant facts on which either party relies but it should not
state the evidence by which the fact is proposed to be proved.

According to this rule, the evidence must be omitted from the pleadings. In other words, the
party is not obliged to mention the documentary evidence or the witnesses which it proposes
to produce before the court to be used against the opposing party. This is to ensure the
Fairness of a trial and assure the safety of the evidence. There are two types of facts that
is facts probanda and facts probantia.

Facts probanda are those facts which need to be proved (i.e., material facts) whereas,
Facts probantia are those facts by which a case is to be proved (i.e., evidence).

Therefore, only facts prabanda must be part of the pleading and not fact probantia, because
the material facts which the plaintiff depends to prove his claim or the defendant relies on
to prove his defence are Facts prabanda.

4. Facts should be presented in concise manner:

Pleadings must be in concise, i.e., brief Facts that explains the details of the case in short.

The last and final basic or fundamental rule which is also called the rule of brevity requires
that the pleadings are short, unambiguous and not capable of multiple interpretation but only
one interpretation that the pleader desires to convey.

In Virendra Kashinath vs. Vinayak N. Joshi, the court held that pleading must be drafted
in brief and niggling should be avoided. However, it doesn’t mean that essential facts need to
be omitted in order to achieve brevity

Further Sub Rule (2) and (3) of Rule 2 states that:

➢ Every pleading shall be divided into paragraphs, numbered sequentially and allegations
mentioned must be in different Paras;
➢ If dates, sums and numbers are mentioned then they shall be expressed in figures as
well as words

❖ Rule 3-13 require the parties to Supply Necessary Particulars

➢ Rule 3: Forms of pleading

The format of the pleading must be as mentioned in Appendix A of this code.
 ➢ Rule 4: Particulars to be given where necessary
In all cases of misrepresentation, fraud, breach of trust, wilful default, undue influence and
all other cases the following must be mentioned in the pleading:

✓ Date;
✓ Time;
✓ Place; and
✓ Manner in which it was practiced against him

➢ Rule 5: Condition Precedent

If a plaintiff wants to institute a suit against defendant through court by any provision, but
if in such provision, if there is a condition to be fulfilled to institute a case under it, then it
must be fulfilled and the same shall be mentioned in the pleading.

➢ Rule 7: Departure from pleading is not permissible

No pleading shall, expect by way of amendment, raise any new ground of claim or contain
allegation of fact inconsistent with the previous pleading of the party leading the same.

➢ Rule 8: Denial of contract

If a party to the suit pleads about a contract in his pleading and the opposition denies the
contract, then such denial must be construed as denial with regards to facts of the contract
and not its legality, validity or enforceability.

➢ Rule 9: Effect of document to be stated

If parties to the suit in their pleading attach a document that is related to material fact of
the case, then such document must be attached in concise form and must state what effect
it as on the case.

➢ Rule 10: Malice, fraudulent intention, knowledge, etc.

If the plaintiff knows the intention, malice, fraudulent intention or knowledge of defendant
state of mind, while committing a wrongful act against him, then such state of mind shall be
mentioned in the pleading as a material fact, without stating the circumstances surrounding
it.

➢ Rule 11: Notice as condition precedent

If the plaintiff wants to institute a suit against defendant and if there is a condition
precedent that before instituting such suit under such provision, prior notice must be given
to the defendant and same must be mentioned in the plaint in concise form

➢ Rule 12: Implied contract or relation

Due to series of letters, conversation or other circumstances proves or implies that there
exists an implied contract or relation between plaintiff and defendant, then the parties to
the suit can attach such letters, conversation or state other circumstances in their pleading
as material fact to the case.
 ➢ Rule 13: Presumption of law
It is the duty of the parties to the suit to state only material facts in the pleading, it must
not contain any presumption of law in their favour or due to which the burden of proof shifts
upon the opposing party.

❖ Rule 14 & 15 provide for Signing and Verification of Pleading

➢ Rule 14: Pleading to be signed

Pleading must be signed by the parties filing it through the court (i.e., parties to the case or
their pleader). Provided that if the parties to the suit cannot sign their pleading or by reason
of absence is unable to sign then a person authorised by them can sign the pleading.

➢ Rule 15: Verification of pleading

Parties to the suit verifying shall specify, by reference to the numbered paragraphs of the
pleading state:

✓ which para he verifies of his own knowledge; and

✓ which para he verifies upon information received and believed to be true.
The verification made shall be signed by the person making it and also state the date and
place at which he signed. Further, the person verifying shall furnish and affidavit in support
of his pleading.

❖ Rule 16: Empowers the Court to Strike-out Unnecessary Pleadings

The court at any stage of the proceedings may order to strike out or amend the pleading

✓ which is unnecessary, scandalous, frivolous, vicious; or

✓ which may tend to prejudice, embarrass or delay the fair trial of the suit.

❖ Rule 17 & 18 deals with Amendment of Pleading

➢ Rule 17: Amendment of pleading

This rule states that either party may be allowed to amend or alter is pleading at any stage
of the proceeding in such a manner which is fair and just, and all such amendment shall be
made when necessary to determine the controversial question between the parties.

In Rajesh Kumar Agarwal and others vs. KK Modi and others, the court held that
amendment of pleading consists of two parts:

✓ The word “may” give discretionary power to the court to allow or strikeout application
to amend pleading;
✓ The word “shall” give obligatory direction to the civil courts to allow application to
amend pleading, when it is necessary to determine controversial question between the
parties.

➢ Rule 18: Failure to amend after order

If a party to the suit fails to amend the pleading within a given time limit, by order of the
court or if no time limit is given then if he fails to amend the pleading within 14 days from
the date of order, he shall not be permitted to amend is pleading after the expiration of
time given, unless the time is extended by the court.

Question 15: Order 7: Plaint

A plaint is a legal document which contains the statement of the plaintiff’s claim. A plaint is
the first step towards the initiation of a suit.

However, the expression “plaint” has not been defined in the code. But it can be defined as a
pleading of the plaintiff. In plaint, the plaintiff states alleged facts about his cause of
action. A plaint which is presented to a civil court of appropriate jurisdiction contains
everything, including facts to relief that the plaintiff expects to obtain.

❖ Order 7 & Section 26 of CPC deals with Plaint:

➢ Rules 1 to 8 relate to particulars in a plaint.
➢ Rule 9 lays down procedure on plaint being admitted.
➢ Rules 10 to 10B provide for the return of plaint, and appearance of parties.
➢ Rules 11 to 13 deal with rejection of plaint.
➢ Rules 14 to 17 contain provisions for the production of documents.

❖ Particulars of the Plaint:

1. The name of the particular court where the suit is brought;
2. The name, place, and description of the plaintiff’s residence;
3. The name, place, and description of the defendant’s residence;
4. A statement of unsoundness of mind or minority in case the plaintiff or the
defendant belongs to either of the categories;
5. The facts that led to the cause of action and when it arose;
6. The fact that points out to the jurisdiction of the court;
7. A statement of the value of the subject-matter of the suit for the purpose of
jurisdiction and court fees;
8. The relief claimed by the plaintiff, simply or on the alternative;
9. Where the plaintiff files a suit in a representative capacity the facts showing that
the plaintiff has an actual existing interest in the subject matter and he has taken
steps that may be necessary to enable him to le such a suit;
10. Where the plaintiff has allowed a set-o or relinquished a portion of his claim, the
amount so allowed or relinquished;
11. Where the suit is for recovery of money, the precise amount claimed;
12. Where the suit is for accounts or mesne profits or for movables in the possession
of the defendant or for debts which cannot be determined, the approximate
amount or value thereof;
13. Where the subject-matter of the suit is immovable property description of the
property sufficient to identify it, e.g., boundaries, survey numbers, etc;
14. The interest and liability of the defendant in the subject-matter of the suit;
 15. Where the suit is time-barred, the ground upon which the exemption from the law
of limitation is claimed;

❖ Admission of Plaint:

Rule 9 lays down the procedure when the plaint is admitted by the court. It provides for
the filling of copies of the plaint by the plaintiff and also requires him to pay requisite fees
for the service of summons on the defendants within seven days.

❖ Return of Plaint:

The provisions regarding the return of plaint are provided under the Order 7 Rules 10, 10A,
10B, CPC, 1908. The court, if it found that it does not have jurisdiction in the suit, can return
by an order that the plaint to be presented in the proper court. The defect of jurisdiction
can be of territorial, Pecuniary or Subject matter.

The trial court may return the plaint to be presented to the proper court by the order of
returning the plaint.

➢ Procedure for returning the Plaint:

On the returning of the plaint, the court is required to endorse on the plaint the following
particulars:

1. Date of Presentation
2. Date of Returning
3. Name of the party which presented the plaint
4. Reasons for returning the plaint.

➢ Grounds for return of plaint:

1. Court has no jurisdiction:
2. Objection to jurisdiction:

If the party to the suit has any objection as to the jurisdiction of the court, the court may
return the plaint.

❖ Rejection of Plaint:

Order 7 Rule 1 lays down the contents of a plaint and some of these contents cannot be
missed by the pleader. If such content is missed, the court is empowered to reject the plaint
and the plaintiff has to resubmit the plaint after making necessary modifications. Rejection,
however, is not the first option before the court

Law is not to humiliate the victim; it is to give an opportunity to a vigilante and bona fide
victim to claim remedies. Therefore, CPC allows amendment of the plaint at any time before
the judgment is passed so that the court does not have to reject the plaint.

➢ Grounds for Rejection

Order 7 Rule 11-13 lays down the specific grounds for rejection of the plaint. There
are six grounds for which a plaint can be rejected under this provision and they are as
follows:

1. When the plaintiff has omitted or abstained from unveiling the cause of action, i.e., the
obvious act or omission by the defendant that led the plaintiff to file this suit.

2. When the plaintiff has intentionally or unintentionally undervalued the plaint.

Undervaluation means showing that the value of a property is less so that the valuation of the
suit is at a lesser amount and the court can exercise jurisdiction on the matter which
otherwise, could not have exercised if the suit was correctly valued.

3. Under the Stamps Act, every legal document is required to be drafted on a stamp paper of
the requisite value which depends on several factors such as nature of the document,
valuation of the suit, etc. If it is not filed on the stamp paper of the value specified by law,
the court may ask the plaintiff to submit the stamp paper and if he fails to do that, it can be
rejected.

4. When the filing of the suit is barred by law and it is evident from the statement of the
plaint the court shall reject the plaint.

5. It is required to be filed in duplicate. It means the plaintiff has to file two copies of the
plaint, one for the court and other for the defendant. If the plaintiff has not filed the plaint
in duplicate, the court is empowered to reject it.

6. Order 7 Rule 9(1) requires that the plaintiff submits as many copies as the court asks for
to be submitted to the defendants. It is usually the number of copies as there is the number
of defendants and such copies have to be submitted on a plain paper. If the plaintiff Fails to
submit the required number of copies of the plaint, it becomes a ground for rejection of the
plaint.

7. Order 7 Rule 9(1A) requires that the plaintiff submits the requisite fees that will be
incurred by the court to serve the summons to the defendants. In a criminal case, the
summons is served at the cost of the state. However, in a civil suit, the fees need to be paid
by the plaintiff. If such payment is not made within 7 days from the date of order of
payment, the plaint is liable to be rejected.

Question 16: Order 8: Written Statement

The expression “Written Statement” has not been defined in this code. It is a term of
specific meaning ordinarily signifying a reply to the plaint. In other words, it is the pleading
of the defendant wherein he deals with the material fact alleged by the plaintiff in his plaint
and also states any new fact in his favour or takes legal objections against the claim of the
plaintiff. Order 8 of CPC deals with Written Statement.
❖ Who may file written statement:

A written statement may be filed by the defendant or by his duly authorized agent. In the
case of more than one defendant, the common written statement filed by them must be
signed by all of them. But it is sufficient if it is verified by one of them who is aware of the
facts of the case and is in a position to file an affidavit. But a written statement filed by one
defendant does not bind other defendants.

❖ Time limit for ling written statement:

A written statement should be led within thirty days from the service of the summons on
him. The said period, however, can be extended up to ninety days, (Rule -1). A defendant
should present a written statement of his defence in the said period.

❖ Defences in written statement:

In written statement defendant can specifically deny the allegations made in the plaint by
the plaintiff against him. Besides this, he also can claim to set-off any sums of money payable
by the plaintiff to him as a counter defence (Order 8 Rule 6). Further, if the defendant has
any claim against the plaintiff relating to any matter in the issue raised in the plaint, then he
can separately le a counter-claim along with his written statement. It is provided in Order 8
Rule 6A to 6G of the code.

❖ Rules relating to filing written statement:

Rules 2 to 5 and 7 to 10 deals with rules regarding the filing of a written statement;

1. New facts not mentioned in the pleadings, such suit is not maintainable and all such grounds
of defence as, if not raised, would take the plaintiff by surprise, or would raise issues of fact
not arising out of the plaint, such as fraud, limitation, release, payment, performance or facts
showing illegality, etc. must be raised. (Order 8 Rule 2)

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

3. The denial should not be vague or evasive. Where a defendant wants to deny any allegation
of fact in the plaint, he must do so clearly, specifically and explicitly and not evasively or
generally.

4. Where every allegation of fact in the plaint, if not denied specifically or by necessary
implication, or stated to be not admitted except as against a person under disability. The
court may, however, require proof of any such fact otherwise than by such admission.

5. Where the defendant relies upon several distinct grounds of defence or set-o or
counterclaim founded upon separate and distinct facts, they should be stated separately and
distinctly.
6. Any new ground of defence which has arisen after the institution of the suit or a
presentation of a written statement claiming a set-o or counterclaim may be raised by the
defendant or plaintiff in his written statement as the case may be.

7. If the defendant fails to present his written statement within the time permitted or fixed
by the court, the court will pronounce the judgment against him or pass such order in relation
to the suit as it thinks t and a decree will be drawn up according to the said judgment.

8. No pleading after the written statement of the defendant other than by way of defence
to set-o or counterclaim can be led.

Question 17: Order 11: Discovery of Documents

Order 11 of Civil Procedure Code, 1908 deal with “Discovery of Documents”, it basically
means a pre-trial procedural aspect wherein each party is given an opportunity to obtain
evidence from the opposite party or parties. In other words, we can say that it is a formal
process wherein the parties get a chance to exchange information regarding the witnesses
and evidence which will be presented before the court during the trial.

The main purpose of discovery is to make the parties aware of the case, that means there
shall not be any ambiguity between parties while the trial is going on. Both the parties shall
be clear about the plaint made and issues thereby. The discovery of documents is covered
under the Rule 12-14 Order XI of the code.

❖ There are various types of discovery:

1. interrogatories;
2. requests for production of documents and inspection;
3. requests for admissions;
4. depositions;
5. subpoenas duces tecum; (A subpoena duces tecum is a type of subpoena that requires
the witness to produce a document or documents pertinent to a proceeding. In Latin
“duces tecum” means "you shall bring with you".)
6. physical and mental examinations.

❖ Who may seek discovery?

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

❖ Against whom discovery may be ordered?

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

The document asked under the discovery of documents are need not to be every time
admissible the documents may be admissible in the case if they are relevant to the case and
which may have some impact on the issues dealt under the case.

❖ Documents disclosing evidence

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

❖ Affidavit of documents

The documents under this rule are provided with the affidavit provided 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.
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 or 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.
8. 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.

Question 18: Order 11: Inspection of Documents

Under Order 11, Rule 12-21 of the CPC, deals with the inspection of discovery. 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 11 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 Document

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.

Question 19: Order 12: Admissions

Order 12 of the Code deals with “Admission”, it 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.

❖ Importance of Admission:

In the case of Biswanath v Dwarka Prasad, 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 a phrase which by its own
force.

❖ 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.
❖ Conclusiveness of Admission:

The admissions are not conclusive in nature. They can be flawed or complimentary. 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.

❖ Notice to Admit Case:

As per Rule 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.

Question 20: Order 13: Production, Impounding and Return of

Documents
❖ Production of documents

As per Rule 1 of Order 13, 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 is allowed as evidence
in the suit when the following particulars are made:

1. The number and title of the suit,

2. The name of the person producing the document,
3. The date on which it was produced, and
4. A statement of it having been so admitted;

The endorsed documents shall be signed by the Judge.

❖ Return of documents

If any party to the suit or not is having the desire to receive back any of the documents
submitted by him in the suit which is placed on the record is entitled to receive the
documents unless it is impounded by the court under Rule 8.

The court can return the documents on the following grounds:

1. Where the suit is one in which an appeal is not allowed, when the suit has been
disposed of, and;
2. where the suit is one in which an appeal is allowed when the Court is satisfied that the
time for preferring an appeal has elapsed and that no appeal has been preferred or if
an appeal has been preferred when the appeal has been disposed of;
3. During the pendency of the suit, the party can receive the documents if the following
conditions are fulfilled:
➢ the party is substituting the original document with a certified copy from a
proper officer;
➢ undertakes to produce the original copy if required.

While returning the document which has been admitted in evidence, a receipt shall be given
to the person who is receiving it.

❖ Rejection of documents

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

❖ Impounding of documents

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

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

Question 21: Order 14: Framing of Issues

Framing of issues is probably the most important part of the trail of a civil suit. For a
correct and accurate decision in the shortest possible time in a case, it is necessary to frame
correct and accurate issues. Inaccurate and incorrect issues may kill the valuable time of the
court.

In Siddhi Chunilal vs. Suresh Gopkishan 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 armed by one party and
denied by the other party to the suit and which is subject of the final determination of the
proceedings.

❖ When issues arise?

Issues arise when a material proposition of fact or law is armed by one party and denied by
the other party to the suit.

❖ What are the material propositions?

According to Rule 1(2) material propositions are those propositions of fact or law which a
plaintiff must allege in order to show a right to sue or a defendant must allege in order to
constitute his defense.

❖ Object of framing of issues:

The main object of framing issues is to ascertain the real dispute between the parties by
narrowing down the area of conflict and determine where the parties differ.

❖ Duty of the court:

The duty in relation to framing of the issue is that of the court which it has to discharge
because it has to try the suit and it has to give notice to parties to lead evidence with
context of the issues framed.

❖ Kinds of issues:

As per the Order 14 Rule 1(4) of the C.P.C. issues are of two kinds:

➢ Issues of fact
➢ Issues of Law.

❖ 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.

❖ Postponement of framing of issues?

Where the Court find that the issues cannot be correctly framed without the examination of
some person not before the Court or without the inspection of some document not produced
in the suit, it may adjourn the framing of the issues to a future day (maximum of 7 days).

❖ What materials are required for framing of issues?

The issues may be framed by the Court from all or any of the following materials:
 1. Allegations made on oath by the parties, or by any persons present on their behalf, or
made by the pleaders of such parties;
2. Allegations made in the pleadings or in answers to interrogatories delivered in the
suit;
3. The contents of the documents produced by either party.

❖ Amendment of issues framed:

Order 14 Rule 5, empowers the court to amend issues framed or frame additional issues
at any stage of proceedings and it does not consider that the power must be exercised
when application is made on the other hand it saddles on the Court a duty to exercise power
suo-moto “for determining the matters in controversy between the parties” if that was
necessary to do so.

Question 22: Order 19: Affidavit

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 inferences; 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. If he gives a statement, not to his personal
knowledge then in such case he shall mention the true source. However, interlocutory
applications can be filed wherein he can admit his belief.

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

❖ 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 taken 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.

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.

❖ False affidavit (not relevant for exams)

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.

Question 23: Order 21: Execution

Execution is the last stage of any civil litigation. There are three stages in litigation:

1. Institution of litigation.
2. Adjudication of litigation.
3. Implementation of litigation.
Implementation of litigation is also known as execution. A decree will come into existence
where the civil litigation has been instituted with the presentment of the plaint. The decree
means operation or conclusiveness of judgment.

The term “execution” has not been defined in the code. The expression “execution” means
enforcement or implementation or giving an effect to the order or judgment passed by the
court of justice.

Execution is the medium by which a decree-holder compels the judgment-debtor to carry out
the mandate of the decree or order as the case may be. It enables the decree-holder to
recover the fruits of the judgment. The execution is complete when the judgment-creditor
or decree-holder gets money or other thing awarded to him by judgment, decree or order.

➢ Illustration:

A file a suit against B for Rs 10,000 and obtains a decree against him. Here A is the decree-
holder. B is the judgment-debtor, and the amount of Rs 10,000 is the judgment-debt or the
decretal amount. Since the decree is passed against B, he is bound to pay Rs 10,000 to A.
Suppose in spite of the decree, B refuses to pay the decretal amount to A, and A can recover
the said amount from B by executing the decree through judicial process. The principle
governing the execution of decree and orders are dealt with in Sections 36-74 (substantive
law) and Order 21 of the code (procedural law).

Supreme Court in Ghanshyam Das v. Anant Kumar Sinha dealing with provision of the code
relating to execution of decree and orders, stated, “so far as the question of executability of
a decree is concerned, the Civil Procedure Code contains elaborate and exhaustive provisions
for dealing with it in all aspects. The numerous rules of Order 21 of the code take care of
different situations providing effective remedies not only to judgment-debtors and decree-
holders but also to claimant objectors, as the case may be.”

❖ The classification of Order 21 is as follows:

1. Applications for execution and the process to be applied.
2. Stay of executions.
3. Mode of executions.
4. Sale of immovable property and movable property.
5. Adjudication of the claims and objections.
6. Resistance and delivery of possession.

❖ Who can make application for execution?

Application for execution can be made by:

1. The decree holder himself.

2. His legal representative if the decree holder is dead.
3. Any person claiming under the decree holder.
4. Transferee of Decree holder who has given notice to transferor and judgement
debtor.
 5. Any one or more of the Decree holders where it is for benefit of all and no contrary
intention is indicated.

❖ Against whom the application for execution can be made?

Execution decree can be made only against the judgement debtor, if he is alive or against
legal representatives of judgement debtor.

❖ Courts which can Execute Decrees:

Section 38 of the Code states that a decree can be executed either by the Court of
the first instance or by the Court to which it has been sent for execution.

Section 37 of the Code further establishes the scope of the expression “court which
passed a decree” with the object of enabling a decree-holder to recover the fruits of the
decree. The courts which fall within the said expression are as follows:

1. The court of the first instance;

2. The court which actually passed the decree in case of appellate decrees;
3. The court which has jurisdiction to try the suit at the time of execution, if the court
of first instance ceased to exist;
4. The court which at the time of execution had jurisdiction to try the suit, if the court
of first instance has ceased to have jurisdiction to execute the decree.

Explanation to the section clarifies that the court of first instance shall have jurisdiction to
execute a decree even in the case of any area being transferred from the jurisdiction of the
court of first instance to the jurisdiction of any other court. In such cases, the court to the
jurisdiction of which such area has been transferred will also have jurisdiction to execute
the decree, provided that the said court had jurisdiction to try the said suit when the
application for execution was made.

❖ Modes of Execution:

The code lays down various mode of execution. After the decree-holder files an application
for execution of decree, the executing court can enforce execution.

A decree can be enforced by:

➢ By delivery of any property specifically decreed.

➢ By attachment and sale or by sale without attachment of the property.
➢ By arrest and detention.
➢ By appointing a receiver.
➢ By effecting partition.
➢ Any such manner which the nature of relief requires.

Section 51 of C.P.C lays down the court may on the application of decree holder order
execution of the decree subject to such conditions and limitation as may be prescribed.

1. Arrest and Detention

One of the modes of executing a decree is arrest and detention of the judgment-debtor in
civil imprisonment. Where the decree is for payment of money, it can be executed by arrest
and detention of the judgment-debtor.

A judgment-debtor may be arrested at any time on any day in the execution of a decree.
After this arrest, he must be brought before the court as soon as practicable. For the
purpose of making arrest,

➢ no dwelling house may be entered after sunset or before sunrise;

➢ no outer door of a dwelling house may be broken open unless such dwelling house is in
the occupancy of the judgment-debtor and he refuses or prevents access thereto;
➢ no order of detention of the judgment-debtor shall be made where the decretal
amount does not exceed Rs.2000;
➢ where the judgment-debtor pays the decretal amount and costs of arrest to the
officer, he should be released once;
➢ women, judicial officers, the parties, their pleaders, member of legislative bodies, a
judgment-debtor where the decretal amount does not exceed Rs 2,000, this person
cannot be arrested and detained in civil imprisonment;

A decree for money cannot be executed by arrest and detention where the judgment-debtor
is a woman, or a minor, or a legal representative of a deceased judgment-debtor.

2. Attachment and Sale of Property

Section 60 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 securities 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.

➢ How is decree related to Specific movable property executed?

According to Order 21, Rule 31, when the decree is for any specific movable property,
the execution can take place in any of the following made:

✓ By seizure and delivery of the property.

 ✓ By detention of the judgement debtor.
✓ By attachment of his properly.
✓ By attachment and detention both.

➢ What powers does the court have regarding the execution of Immovable
Property?

According to Order 21, Rule 35, a court executing a decree has the power to attach the
property and sell the property or portion thereof which is sufficient to satisfy the decree.
After such attachment the first step is issuing proclamation of sale. Such a proclamation
shall be prepared after notice to both the sides and shall comprise of following details: -

1. Time and place of sale

2. Property to be sold
3. Revenue, if any, assessed upon the property;
4. Encumbrance, if any, to which property is liable;
5. Amount to be recovered;
6. Details relating to property, such as title deed, length etc.

➢ Time of Sale: Rule 68

No sale without the consent in writing of the judgment-debtor can take place before 15 days
in case of immovable property and before 7 days in case of movable property from the
date of proclamation in the courthouse. A sale can be conducted immediately if the property
is of perishable nature.

➢ Adjournment of Sale: Rule 69

If the judgment-debtor after the issue of proclamation, before sale has paid the amount or
has partly promised to pay on the given date before completion of public order, if there is
any justified reason, in those circumstances, court has discretionary power to postpone the
sale.

If it has been postponed for a period of 30 days, the fresh proclamation has to be
issued and again the process of Rule 67, 68 and 69 will follow. Sale cannot be postponed
where judgment-debtor dies before the date of sell or after the issue of proclamation, or on
the date of the auction.

➢ Restriction to bid: Rule 72-73

A decree-holder cannot, without the express permission of the court, purchase the property
sold in execution of his own decree.

Any officer or other person having any duty to perform in connection with the execution sale
cannot either directly or indirectly, acquire or any attempt to acquire any interest in the
property sold in execution.

3. How is decree for specific performance for restitution of conjugal rights or

for an injunction executed?
According to Order 21, Rule 32, “Where the party against whom a decree for the specific
performance of a contract, or for restitution of conjugal rights or for an injunction, stay has
been passed, has had an opportunity of obeying the decree and if he has wilfully failed to
obey it, the decree may be enforced, in the case of a decree for restitution of conjugal
rights:

➢ By his detention in Civil Prison.

➢ By the attachment of his property.

❖ Limitation Period of Execution of Decrees

Article 136 of the Limitation Act states the period of execution for decrees in India. For
any application, which does not have a defined period prescribed, the limit is 3 years, as
per Article 137 of the Limitation Act. However, the decree of mandatory injunction has a
limit of 12 years.

Question 24: Order 27: Suits by or against Governments

Article 300 of the Indian Constitution empowers the Indian government to sue any
person or be sued by any person under the name of the Union. Similarly, State
governments can sue or be sued by any legal person under the name of the State.

This provision creates a substantive right of filing a suit on the government by persons who
are aggrieved by an action of the government and vice versa. This is a substantive provision
and its purpose is to only create a right. It does not explain the procedure that needs to be
followed to sue the government.

The procedure to sue is a matter of procedural law and Sections 79 to 82 read with Order
27 explains the procedure to sue or be sued by the government in detail. These
procedures explain and answer several questions which are a sine qua non (i.e., essential) in a
civil suit such as when the cause of action arises in a suit by or against the government and
how the suit is to be instituted.

❖ Analysis of Procedure under Section 79

Section 79 is a replication of the provision contained in Article 300 of the Constitution. It

states that the parties who shall be impleaded as plaintiff and defendant shall be the “Union
of India”, if the suit is by or against ‘Central Government’ and if the suit is by or against
‘State Government’ then “State of ________”.

In Santhanand v. Basu-devanand, the court commented on Section 79 of CPC and said that
it lays down the procedure for the institution of the suit but does not establish any rights or
liabilities on the government.

In Dominion of India v. RCKC Nath, the court clarified the point of the jurisdiction of civil
courts with respect to suits involving government or public officers. The court held that any
suit by or against the government can be filed only before that court within the territorial
jurisdiction of who’s the cause of action had arisen.

Further, If the court within whose local jurisdiction the cause of action arose is not
competent to hear the case, the suit cannot be filed before such court and the expressions
used in the CPC such as ‘reside, dwell or carry-on business’ do not apply to suits involving
government instrumentalities.

Moreover, if the suit is by or against the railway, the procedure to be followed was
explained in R.C. Jall v. Union of India. In this case, the apex court observed that if a rail
authority is maintained by the Central or State government, a suit can be filed by or against
the government itself and rail administration is not required to be impleaded as a party.

❖ Notice under Section 80

A legal notice is an instrument served by the aggrieved party to the adverse party implying
that certain legal right of the aggrieved party has been infringed by the acts of the adverse
party because of which the aggrieved person seeks to take legal action against the other
party unless the violation can be remedied before the suit is instituted.

The notice under Section 80 is called a statutory notice because it is a statutory mandate
under Section 80 to issue a notice to the government or the public officer against whom a
case is filed. The primary reason for a notice under Section 80 is to save the time and
expense of the government and litigants. The provision lays down the manner in which the
notice has to be issued and served. They are as follows:

➢ Notice must be issued 2 months prior to the date of institution of the suit;
➢ Notice must be in writing;
➢ Notice must be either delivered through registered post or left at the office of the
Secretary to the Central or State Government;
➢ Notice must be delivered or left at the office of the General Manager of Railways if
the suit is against the railway.

In general, the notice should contain the details of the plaintiff, the situation that led to the
cause of action, time of the cause of action and the claims of the plaintiff that will remedy
the injury caused. Further, in Sankar Mukherjee v. Union of India, the apex court held that
“notice is required to convey to its recipient’s sufficient information to enable him to
consider the plaintiff’s claim”.

In Lal Chand v. Union of India, the court said that if the notice is not duly served and the
suit is filed, the government can object to it and the plaint shall be rejected by the court.

❖ Execution of a Decree against the Government

The procedure to institute the suit has already been explained and all the prerequisites to
the commencement of proceedings are dealt with. After the institution of suit, the court
proceedings continue in the same manner as any other suit except the government is
represented by a government pleader.
The next procedure is the execution of a decree. Suppose the plaintiff is an individual and
the suit is against the central or state government or a public officer and the decree is
pronounced in favour of the plaintiff. The question is would the decree be executed in the
same manner as other decrees.

Section 82 of the Code throws light on this question and provides that a decree
obtained against a government or public officer shall be executed in accordance with
this Section. It states that no suit for execution can be filed against the government for 3
months from the date on which the decree was passed.

This period to allow the government to full the requirements of the decree and remedy the
wrong that it had done. If the plaintiff’s claims remain unsatisfied for 3 months, the
execution application can be filed in accordance with the Rules under Order 21.

Question 25: Part 4: Suits by Aliens and by or against Foreign

Rulers, Ambassadors
The Code of Civil Procedure, 1908 regulates human activities within the territory of India. It
means that if the cause of action arises in India, the CPC shall regulate it. The code
nowhere mentions that the plaintiff or defendant has to be an Indian Citizen for the
Code to apply. The only requirement is that the cause of action must arise in India.

➢ Illustration:

Now, imagine a situation where X is a rice trader in Chennai who is extremely popular for his
quality of rice in Southern India and some parts of Sri Lanka. Y, who has retail business in
rice enters into an agreement with X for sale of rice. After the payment of advance money, X
denied the contract. Here, Y can sue X in Indian courts since the cause of action arose in
India even if Y is an alien to India.

These procedures for the suit by aliens and foreign government, etc. are dealt with
under Part IV of the Code. Part IV can be divided into three parts for the purpose of
brevity:

1. Suit by Aliens
2. Suit by and against Foreign States
3. Suits by and against Foreign Rules and Ambassadors.

I. Suit by Aliens:

Section 83 of the CPC deals with the aspects and procedures for suits filed by aliens.
The term alien is not defined either under the Section or anywhere under the code. However,
in general, a person is alien to a country if he/she is not a citizen of that country and is
residing in that country either for a certain purpose or as a refugee. It means any foreign
citizen who has taken shelter in any place in India is called an alien.

Under Section 83, an alien has been classified into the following:
 ➢ alien friends;
➢ alien enemies residing in India; and
➢ alien enemies residing outside India.

Section 83 goes to explain what is an alien enemy residing outside India but the other two
are left for interpretation.

According to the explanation to Section 83, if a person resides and carries on business in a
foreign country which is at war or in a situation of conflict that may result in war, such
persons are called alien enemies residing in foreign countries, without license and permission
from the Central government.

Now, from this explanation, it is lenient to define the other two. Alien enemy residing in
India is a person who resides and carries on business in India either with the license or
without the license from the central government but is a citizen of a foreign country with
which India is at war or in a situation of war.

Similarly, an alien friend is a person residing and carrying on business in India and is a citizen
of a foreign country with which India is an ally or in friendly relations.

According to Section 83, an alien friend and an alien enemy residing and carrying on
business in India with the license from the authorities shall have the right to sue in
Indian courts for any infringement of rights.

II. Suits by and against Foreign States:

In the case of LICRA v. Yahoo Inc., Yahoo Inc. was selling Nazi mementos on its online
shopping website. The products were banned to be sold in France and Yahoo France had
already removed all such products from its website.

However, orders were placed and mementos were purchased from the Yahoo Inc. by people of
France. Against this action, France filed a suit in the US circuit court for an order of
permanent injunction against Yahoo selling mementos in France and for damages. This is an
example of a suit by a foreign State which is led for any act done against the State as a
whole or any of its people.

In India, Section 84 allows a foreign State to sue in Indian courts and Section 86 allows
any entity to sue a foreign State in Indian courts.

Similar to the provisions related to suit by aliens, a suit by or against the foreign state can
only be filed before a court of competent jurisdiction territorially and pecuniary. A suit by a
foreign State can be filed for the following purposes:

❖ Enforce the Rights of Ruler:

A suit can be filed by a foreign State to enforce the private rights of a ruler of the foreign
State which are bestowed upon him by the virtue of his post. It means that if the ruler of
the foreign State has created any right in his favour by any agreement or by law, and such
right is infringed by the act of an Indian citizen or the State, a suit can be filed to restore
the right of the ruler.
 ❖ Enforce the Rights of Public Officers:

The doctrine of “parens patriae” holds the State in the position of a parent of subjects
under it. Thus, it is the responsibility of the State to ensure that the rights of its officers
are not violated or infringed by actions of any other State or its citizens. Hence, Section
84 vests power in the hands of the foreign State to sue in Indian courts to enforce the
rights vested in their officers.

III. Suits by and against Foreign Rulers:

Sections 85 and 86 of the Code deals with the procedure for the institution of suits by
foreign rulers, ambassadors, envoys, etc. Section 85 explains the process of
representation of foreign rulers and foreign States while Section 86 deals with procedure
and requirements to sue a foreign ruler, ambassador, etc.

It is significant to note that when the question is about a suit filed by or against a foreign
ruler, it cannot be expected that the ruler himself/herself will file the suit or be present
before the court at all the hearings. Therefore, there is a need for a provision to deal with
these aspects and to ensure that there is a fair and reasonable trial.

❖ Representation of Foreign Rulers

Section 86 empowers the Central government to appoint any person (having sufficient
legal knowledge) to represent the foreign ruler in a case where the suit is filed by the
foreign ruler. The government is not required to act voluntarily but the suing party, i.e., the
foreign State or the foreign Ruler shall request the central government to appoint a lawyer
for his/her representation in the court. The request may be made by a foreign ruler himself
or any person authorized by him for that purpose.

❖ Procedure to Sue

The first vital requirement under Section 86 which is required under all suits filed by anyone
is that the suit must be filed before a competent authority, i.e., a civil court having requisite
territorial, pecuniary and subject-matter jurisdiction. The procedure enshrined under
Section 86 applies to any suit filed against a Foreign State, foreign rulers, ambassadors of
different countries and envoys.

The procedure can be explained in the following points:

1. The central government must give written consent under the hands of the Secretary
to the government to sue the foreign State, ruler, etc.
2. If the suit is led by a tenant who is in possession of an immovable property owned by a
foreign State, the consent by the Central Government is not required.
3. The central government can provide its consent for one suit or several suits as the
case may be.
4. The central government must ensure that either of the four circumstances exists
before instituting any suit against the foreign ruler.
➢ That the foreign ruler has already instituted a suit against the plaintiff, or
 ➢ That such State or ruler carries on trade within the local jurisdiction of the court,
or
➢ The immovable property must be the subject matter of the suit and not the
charge on it and such property should be situated within the local limits of the
jurisdiction of the court, or
➢ That the foreign ruler, etc. has knowingly waived the privileges of non-arrest
under Section 86.
5. If a decree has been pronounced by the court in favour of the plaintiff and against
the foreign State or its ruler, it cannot be executed without the explicit consent of
the Centre certified by the Secretary to the central government.

The above provisions apply equally to the Foreign rulers, ambassadors and envoys or any other
public officer who belongs to a foreign country and has a cause of action either in favour or
against him India.

Question 26: Order 30: Suits by or against Firms

Firms enter into an agreement and try to avoid their promises and liability later with the
intent of committing fraud. Contractual disputes, fraud, breach of trust, etc. are very
common to be heard about firms today. To regulate these actions, Order 30 of the Code
provides for the procedure to sue and be sued by a rm and how to proceed with such
suits.

Rule 1 of Order 30 provides for the procedure to instate a suit for legal action either by
the firm or against the firm. According to the provision, if the partners of the firm are
aggrieved by the action of certain persons or if certain persons are aggrieved by the actions
of the partners, the partners can sue or be sued in the name of the firm. It means that the
suit shall be titled in the name of the firm but the partners shall be the ones liable for the
execution of any order of the court.

In Purushottam Umedbhai & Co. v. Manial & Sons, the apex court observed that Order 30
of the code does not apply firms carried on the name of the owner himself such as a sole
proprietorship firm. It applies to situation where firms are carried on the names of other
persons such as partnership.

In Shankar Housing Corp v. Mohan, the Delhi High Court explained the purpose of Rule 1
as it requires suing the firm to avoid the difficulty of finding the guilty partner and
suing him/her separately. The aggrieved person can sue the firm and all the partners will be
held equally and jointly liable.

Further, Rule 1 allows the aggrieved party to request the court for issue of names, addresses
and other details of the partners of the firm who were associated with the firm at the time
when the cause of action had arisen. Moreover, when the partners of a partnership are the
plaintiff and sue the third party, the defendant in such case can also apply before the court
for the details of the partners of the firm at the time when the cause of is claimed to have
arisen by the partners. This is provided under Rule 2 of the Order.

Also, if the firm files a suit and discloses names of certain persons as partners who are not
mentioned in the register of partners, this shall amount to fraud on the court and the suit
shall be dismissed with no cost to the plaintiff partners.

❖ Issue and Service of Summons and its Procedure

Since this is a civil suit, there are no warrants. The processes issued by the court includes
court summons. Rule 3 deals the process and manner of issue and service of summons to
the firm. The rule recognizes the following 4 manners of service of summons depending on
the situation and need:

1. Service on the Partner:

The plaintiff may opt to serve the summons issued by the court upon one or more of the
partners of the firm at their place of residence respectively. If the summon is duly received
by even one partner with acknowledgement, it will be deemed to be served upon the firm and
all the partners thereof. If the partner refuses to receive the summon, the court at its
discretion may deem it to be served.

2. Service at the Place of Business:

The plaintiff may serve the summon upon the firm by sending it to the place of business from
where the firm carries on its business and serving it upon the person in the management of
the firm at that time. The plaintiff should serve the summon upon the place of business at
the time stipulated by the court itself.

3. Service to Third Person:

In R.D. Khan v. Bombay Iron Syndicate, the Bombay High Court held that in the above two
situations when the summon is served to the partners or upon the firm manager and the
partners are out of India at the time of receipt, the receipt of the summon by the third
person shall be deemed to be complete service as it shall be the duty of the third party to
inform the partners of the firm.

4. Service in Case of Dissolution:

When the firm has dissolved, i.e., ceased to carry on business and it is within the knowledge
of the plaintiff, then the plaintiff shall serve the summons on the individual partners of the
dissolved firm who were associated with it at the time when the cause of action arose. The
plaintiff shall decide which partners were liable or whom he seeks to make liable and serve
the summons upon them. In P. Sen (Engineering) Pvt. Ltd. v. Delite Builders, the court held
that service of such summon shall be complete even if it is received by someone acting on
behalf of the partners.
❖ Appearance before the Court

According to Rule 5 of the Order 30, the plaintiff must serve notice right after the summons
is served. The object of the notice is to let the partners of the firm know the capacity in
which they have been sued.

➢ Illustration:

Now, imagine A is a managing partner of the firm named AZB & Partners. His main function is
to take care of day-to-day management of the firm but, however, he can also transact with
the customers of the firm.

Therefore, he can be sued by his fellow partners for mismanagement, he can be sued by an
aggrieved employee for mismanagement, he can be sued by an aggrieved employee for
mismanagement, he can be sued by a customer for breach, etc. In the first two
circumstances, he is sued in the capacity of the manager while in the third circumstance, he
is sued in the capacity of the partner. This needs to be informed to the sued partner as it is
vital for the purpose of the appearance in court.

In Srinath Brothers v. Century Mills, the court observed that notice under Rule 5 must be
issued in both the situations; when the person is sued in the capacity of the partner or when
he is sued in the capacity of the manager.

According to Rule 7 of this Order, the partners are required to be present in the court
at the time of hearing provided they are sued in their capacity as partners.

It means that if the partners are sued in the capacity of a manager, they are not required
to appear before the court mandatorily but as a partner, it is mandatory to appear.
However, the suit shall proceed in the name of the firm itself but the firm shall be
represented by the partners throughout the proceedings of the court.

Question 27: Order 32: Suits by or against Minors and Persons of

Unsound Mind
Order 32 of the Code deals with Suits by or against Minors and Persons of Unsound
Mind. The main object behind the enactment of Order 32 is the protection of the interests
of minors and persons of unsound mind.

In Ram Chandra v. Man Singh, it was held that a decree passed against a minor or a lunatic
without appointment of a guardian is a nullity and void, not merely voidable.

Rules 1-14 of Order 32 apply not only to minors and persons, adjudged to be of unsound
mind, but also, those, who are found to be, by a Court upon inquiry, incapable of making
decisions to protecting their interest when suing or being sued. This is based on the natural
law principle that both parties to a suit must be heard equally before a suit is adjudicated
upon.
❖ Concept of Next Friend/Guardian:

The object behind having a next friend or guardian ad litem (appointed by the court to act in
a lawsuit on or behalf of a child or unsound person) is that a minor is deemed to be
incapable of defending himself and therefore it is imperative that his interests in the
suits should be supervised by an adult person. This person, in case the minor is a plaintiff,
is to be called the next friend and when the minor is a defendant, is called a guardian ad
litem or guardian for the suit.

However, neither the next friend nor guardian ad litem is a party to the suit. The power of
the person so assigned is limited to the proceedings for which he is recognised by the court.

❖ Who can be appointed as Next Friend/Guardian:

Every suit by a minor should be instituted in his name through his guardian or next friend. If
the same is not done, the plaint will be taken off the file.

Any person who has attained majority and is of sound mind, may act as a guardian or next
friend, provided his interest is not adverse to that of minor, who is not the opposite party in
the suit and who gives consent in writing to act as a guardian or next friend.

In the absence of a guardian who is fit and willing person to act as a guardian, the court may
appoint any of its officers as guardian in that particular suit.

Further, as per Rules 6 and 7, without the leave of the court, no guardian or next friend
can:

➢ Receive any amount or movable property on behalf of the minor;

➢ Enter into any agreement on behalf of the minor;
➢ Reach any sort of compromise in the suit on behalf of the minor.

The guardian must apply for leave of the court in all of the above cases and the application
must be accompanied with a pleaders certificate and affidavit. Any agreement entered into,
without the leave of the court is voidable at the instance of the minor. Rules 6 and 7
have been designed in order to safeguard the interests of a minor during the pendency of a
suit against hostile, negligent or collusive acts of next friend or guardian.

❖ Duty to Act in Best Interest of Minor:

As already stated in Rule 4 any person complying with the qualifications may become guardian
or next friend. The guardian or next friend however, must ensure that he acts in best
interests of the minor or unsound person.

A guardian must ensure that the discretionary powers exercised by him in his capacity as
guardian including the employment/dismissal of legal counsel etc. must be in the best
interests of the minor and not to advance his own cause or interests.

However, in certain cases it may be allowed for the guardian and the minor to have common
interest in the suit. As in the case of Ranganathan Chettiar v. Perrkarriappa
Chettiar where the mother was allowed to bring a suit concerning certain properties to be
inherited by her and her minor son which had been wrongfully claimed by the brother of the
deceased husband.

❖ Retirement, removal or death of guardian/next friend:

A next friend or guardian who wishes to retire must first procure a fit person to substitute
him and give security for costs already incurred by him.

The court may also remove a particular guardian or next friend if the court is satisfied
that either:

➢ His interest is adverse to that of the minor in the concerned case;

➢ He is in such a standing as to be capable of colluding with the opposite party or is
closely connected to the opposite party;
➢ He does not discharge his duty to the satisfaction of the court;
➢ He ceases to stay in India during the pendency of the suit and is therefore unable to
look after the best interests of the minor;
➢ Any other sufficiently justifiable cause as the court may decide.

In a case where a guardian or next friend retires or is removed or in the case of his
death, the suit remains stayed until another appropriate guardian is duly appointed in
that particular case.

❖ Application of Order 32 of Unsound Person:

Rule 15 of the Code states that the provisions of Order 32, Rules 1 to 14 shall
squarely apply to persons of unsound mind.

❖ When Minor attains Majority:

When a minor attains majority, he can choose either to proceed with a particular suit or to
abandon it, if he had moved the court through a next friend/guardian. Therefore:

1. Where he elects to proceed with the suit:

He must apply for an order from the court discharging the next friend or guardian and for
leave to proceed with the suit in his own name.

2. Where he elects to abandon the suit:

He must apply for dismissal of suit on repayment of costs to defendant or next

friend/guardian as the case may be.

3. Where minor co-plaintiff desires to renounce suit:

He may renounce the suit and apply to have his name as co-plaintiff stuck off. The court
after examination of the circumstances may remove his name from the suit on finding that he
is not a necessary party or may make him a defendant instead.
 4. Where minor desires that suit instituted in his name be dismissed on the ground that
it was unreasonable/improper:

He may by application move the court for dismissal on such grounds.

Question 28: Order 33: Suits by Indigent Persons

In India, there are so many people, who are poor and not able to get two-time food. So, in
these situations, how can we expect that they are able to get the justice from the court
without money. Article 14 of Indian Constitution guarantees equality before law and equal
protection of the law.

It is the duty of the law to provide free Legal Aid to the persons who are needed. For
providing equal justice to all the people of the India.

Order 33 provides the procedure for filing of suit by an Indigent Person. It empowers
the persons who are not able to pay Court fees to institutes suits without payment of
requisite Court fees.

❖ Meaning of Indigent Person:

An indigent person means any person who fulfils the condition provided under Order 33, Rule
1 which is as follows:

➢ Any person who has no means to pay the Court fees prescribed by the law for the
plaint in suit; and,
➢ He has not entitled to any property worth 1000 rupees where no fees are prescribed.

❖ Object of Order 33:

Usually, plaintiff instituting a suit in the court is bound to pay Court fees prescribed
presentation of the plaint. But, as per this Order, the person is exempted from paying the
court fee at the first instant and allow him to prosecute his suit provided certain conditions
laid down in this Order, it has been enacted to server triple purpose:

➢ to protect bonafide claims of an indigent person;

➢ to safeguard the interest of revenue; and
➢ to protect the defendant from harassment.

❖ Sufficient Means:

The word sufficient means express the ability or capacity of a person in ordinary course to
raise money by available lawful means to pay the court fee.

❖ Contents of Application:

Applicant should present the application to the court in person unless exempted by court Rule
3. Every application should contain the following particulars:
 1. the particulars required in regard to Plains in suit;
2. of any movable or immovable property belonging to the applicant with estimate value
thereof, and
3. signature and verification as provided in order 6 rule 14 and 15.

❖ Rejection of Application

As per Rule 5, in the following cases an application for permission to show as an indigent
person will be rejected by the court:

1. if the application is not framed and presented prescribed manner; or

2. if the applicant is not an indigent person; or
3. if the applicant has disposed of any property fraudulently in order to get permission
to sue as an indigent person within two months before the presentation of the
application; or
4. if there is no cause of action; or
5. if the applicant has entered into an agreement with reference to the subject matter
of the shoot under which another person has obtained interest; or
6. if the suit appears to be barred by law
7. if any other person has entered into an agreement with the applicant to finance costs
of litigation.

❖ Inquiry:

According to Rule 1, at the first stage, an inquiry into the means of the applicant should
be made by the Chief Ministerial Officer of the court. The court may adopt report
submitted by such officer or may itself make an inquiry.

As per Rule 4, where the application submitted by the applicant is in proper form and is duly
represented, the court may examine the applicant regarding the merits of the claim and the
property of the applicant.

After that, the court shall issue a notice to the opposite party and to the Government
Pleader and fix a day for receiving evidence as the applicant may present proof of his
indigency. As per Rule 6 & 7, on the day fixed, the court shall examine the witnesses (if any),
produced by either party, hear their arguments and either allow or reject the application.

❖ Revocation of Permission:

As per Rule 9, on the application by the dependent or by the Government Pleader, the
court may revoke permission granted to the plaintiff to sue as an indigent person in the
following cases:

1. If he is guilty of vexatious or improper conduct in the course of the suit; or

2. If his means are such that he ought not to continue to sue as an indigent person; or
3. If he has entered into an agreement on which another person has obtained an interest
in the subject matter of the suit.
❖ Recovery of the court fees and costs:

Where indigent person succeeds in the suit, the court shall calculate the amount of court
fees and costs and recover from the party as per the direction in the decree and it will be
the first charge on the subject matter of the suit.

Where an indigent person fails or abates, the court fees shall be paid by him. Where the suit
abates due to the death of the plaintiff, such court fee would be recovered from the estate
of the deceased plaintiff.

❖ Set off and Counterclaim:

An indigent person may also plead set off or file counterclaim without paying Court fees.

❖ Appeal:

An order rejecting an application to sue as an indigent person is appealable.

Question 25: Order 21: Arrest before Judgement

Order 21 of the Civil Procedure Code, 1908 deals with “Arrest before Judgement”.
Usually, a creditor who has a claim against his debtor has to first obtain a decree against him
and execute the said decree by having him arrested or property attached in execution.

The creditor, however can move for the arrest of the debtor or for the attachment of
his property ever before the judgement under Order 38 of the CPC.

❖ Object of Order 21:

The main object of this provision is to enable the plaintiff to raise the amount of decree, if a
decree is eventually passed in his favour. Also, to prevent the defendant to offset the
execution at such decree passed against him.

❖ Grounds on Which the Defendant can be Arrested before Judgement:

According to Rule 1, Where at any stage of the suit, if the court is satisfied, either by
affidavit or otherwise:

1. that the defendant with intent to delay the plaintiff or to avoid any process of the court,
or to abstract or delay the execution of any decree that may be passed against him:
➢ has absconded or let the local limits of the jurisdiction of the court, or
➢ is about to abscond or leave the local limits of the jurisdiction of the court,
➢ has disposed off or removed from the local limits of the jurisdiction of the court his
property.
2. that the defendant is about to leave India under the circumstances affording reasonable
probability that the plaintiff will or may thereby be obstructed or delayed in the
execution of any decree that may be passed against the defendant in the suit.
The court may issue a warrant to arrest the defendant and bring him before the court
to show cause why he should not furnish security for his appearance.

Provided that the defendant shall not be arrested if he pays to the officer entrusted with
the execution of the warrant any sum specified in the warrant as sufficient to satisfy the
plaintiffs claim, and such sum stall be held in deposit by the Court until the suit is disposed
of or until the further order of the Court

❖ Discretion of Court

The Courts are expected to take due care after considering the circumstances while granting
such a relief, being a drastic one. The Courts must have reason to believe on adequate
material that unless the power is exercised there is a real danger that the defendant will
remove himself or his property from the jurisdiction of the court.

❖ Conditions
1. The suit filed by the plaintiff should be bonafide and have unimpeachable cause of
action subject to proving the allegations in the plaint.
2. The Court must be convinced that unless this extraordinary power is exercised there
is a danger that the defendant will remove himself or his property from the ambit of
the powers of the court

❖ Security:

As per Rule 2, where the defendant fails to furnish such cause, the Court shall order him
either to deposit in Court money or other property sufficient to answer the claim against
him, or to furnish security for his appearance at any time when called upon while the suit is
pending and until satisfaction of any decree that may be passed against him in the suit.

❖ Rule 3: Procedure on application by surety to be discharged:

1. A surety for the appearance of a defendant may at any time apply to the Court in
which he became such surety to be discharged from his obligation.
2. On such application being made, the Court shall summon the defendant to appear or if
it thinks fit, may issue a warrant for his arrest in the first instance.
3. On the appearance of the defendant in pursuance of the summons or warrant, or on
his voluntary surrender, the Court shall direct the surety to be discharged from his
obligation and shall call upon the defendant to find fresh security.

❖ Rule 4: Procedure where defendant fails to furnish security or find fresh

security:

Where the defendant fails to comply with any order under Rule 2 or Rule 3, the Court
may commit him to the civil prison until the decision of the suit or where a decree is passed
against the defendant, until the decree has been satisfied. Provided that a person shall be
detained in prison under this rule:

➢ no longer than a period 6 months;

 ➢ no longer than a period of 6 weeks when the amount or value of the subject-matter of
the suit does not exceed 50/-
➢ also, no person shall be detained in prison under this rule after he has complied with
such order.
❖ Appeal

An order passed under Rule 2, 3 or 6 of Order 38 is appealable.

❖ Revision

An order of arrest made under Rule 1 of Order 38 can be said to be a ‘case decided’ under
Section 115 of the Code and is revisable.

Question 26: Order 38: Attachment before Judgement

Order 38 of the Code deals with “Attachment before Judgment”, whereby in certain
circumstances, a court may order attachment of the property of the defendant to safeguard
the interest of the plaintiff.

❖ Object of Order 38:

The main object of this provision is to prevent the defendant to defeat the Execution of the
decree that may be passed against him.

❖ Grounds on Which the Defendant can be ordered to Attach before

Judgement:

As per Rule 5, Order 38, where at any stage of a suit, the court is satisfied by
affidavit or otherwise that the defendant, with intent to abstract or delay the
execution of any decree that may be passed against him:

➢ is about to dispose of the whole or any part of his property,

➢ is about to remove the whole or any part of his property from the local limits of the
jurisdiction of the court.

The court may direct the defendant, with a time limit, either to furnish security of such sum
as may be specified, to produce and place at the disposal of the court, when required the sold
property or the value of the same as may be sufficient to satisfy the decree, or to appear
and show cause why he should not furnish security.

❖ Principles

The Courts are expected to take due care after considering the circumstances while granting
such a relief, being a drastic one. The Courts must have reason to believe on adequate
material that unless the power is exercised there is a real danger that the defendant will
remove himself or his property from the jurisdiction of the court.
Attachment before judgement is an extraordinary remedy. It must be exercised sparingly
and strictly in accordance with law. Courts, while granting this remedy, must take utmost
care and caution so that it may not become an engine of oppression.

The court must be satisfied with the following two conditions:

1. the defendant is about to dispose off the whole or any part of his property,
2. the disposal is with the intention of obstructing or delaying the execution of any
decree that may be passed against the defendant.

In Bharat Tobacco C.V. Manila Saheh case the High Court of Gujarat has rightly observed,
in order to invoke the jurisdiction of the court under Order 38, Rule 5 of the code it is not
sufficient to reproduce the language of that rule but the party seeking the order must
establish by affidavit or otherwise facts which would satisfy the court that the opposite
party is about to dispose of the whole or any part of his property with a view to obstruct or
delaying the execution of the decree that may be passed in the suit.

❖ Mode of Attachment:

According to Rule 7, attachment shall be made in the manner provided for attachment of
property in execution at a decree.

❖ Exemption from Attachment:

According to Rule 12, the court cannot order attachment of any agricultural produce in
possession of an agriculturist.

❖ Rights of 3rd Party:

As per Rule 10, an order of attachment before judgement does not affect the rights of
persons, existing prior to the attachment if they are not parties to the suit. It does not bar
any person holding a decree against the defendant from applying for the sale of the property
under attachment in execution of such decree.

❖ Adjudication of Claims:

According to Rule 8, any claim preferred to the property, called before judgement, shall be
adjudicated upon in the manner provided for adjudication of claims to property attached in
execution of a decree, for the payment of money.

❖ Effect of Attachment:

Order of attachment before judgement guarantees decree not becoming infructuous for
want of property available for satisfaction of such decree. The plaintiff, however, does not
get title just by effecting attachment before judgement.

❖ Removal of Attachment:

As per Rule 9, order of attachment will be withdrawn if the defendant furnishes security,
together with security for costs of the attachment or the suit is dismissed.
❖ Appeal

An order passed under Order 38, Rule 5 is appealable.

❖ Revision

Granting or refusing attachment before judgement is a case decided within the meaning of
Section 115 of the Code and is revisable by the High Court.

❖ Wrongful Attachment

Suit for damages is maintainable for wrongful attachment of property.

Question 27: Order 39: Temporary Injunctions

When an injunction is imposed a person is refrained from or required to do an act. It is a
remedy whereby by an order of injunction addressed to a particular person prohibits him
from doing any act or orders him to perform any act.

❖ Object of Injunction

The abject of granting interim relief is the preservation of the property before adjudication
of the dispute.

❖ Kinds of Injunction:

Injunctions are of two types:

➢ Temporary
➢ Permanent

Permanent injunction is granted only on merits after hearing both the parties at the end of
the trial. Injunctions are also:

➢ Preventive, prohibitive, restrictive i.e., when they prevent, prohibit or restrain

someone from doing something which may affect the rights of the parties.
➢ Mandatory: An order of injunction which compels, commands or orders some person to
do something is a mandatory injunction.

❖ Temporary Injunction

Order 39 of the Code deals with “Temporary Injunction”.

➢ Cases in which temporary injunction may be granted:

As per Rule 1, where in any suit it is proved by affidavit or otherwise:

1. that any property in dispute in a suit is in danger of being wasted, damaged or

alienated by any party to the suit of wrongfully sold in a execution of a decree, or
2. that the defendant threatens, or intends, to remove or dispose of his property with a
view to defrauding the creditors,
 3. that the defendant threatens to dispose the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute, the Court may order grant a temporary
injunction to restrain such act or make such other order for the purpose of staying
and preventing the wasting damaging, alienation, sale, removal or disposition of the
property.

❖ Principles
1. Prima facie case

There should be prima facie (i.e., based upon first impression) case supporting the right
claimed by the plaintiff. Existence of a prima facie case right and infraction and infraction
of such right is the prerequisite for granting temporary injunction.

2. Irreparable Injury

The court must be satisfied that irreparable injury will be caused if the injunction as prayed
is not granted to the applicant and there is no other remedy.

3. Balance of convenience

The Court must be convinced that there will be greater comparative mischief, hardship or
inconvenience caused to the applicant by refusing the injunction than which may cause the
respondent by granting it.

4. Other facts

The court should consider various other circumstances and facts of each case and may
refuse to grant injunction in the interest of justice.

❖ Discretion of Court

The courts have a discretion to grant or refuse injunctions. Parties are not entitled for the
relief of injunction as a matter of right.

❖ Inherent Power of the Court to grant Injunction

Order 39 does not specify that temporary injunction may be granted only in circumstances
enumerated in the said order. Therefore, even if the case is not covered under order 39, the
Court may grant injunction in exercise of inherent powers under Section 151.

❖ Notice: Rule 3
➢ Before granting injunction, court to direct notice to opposite party:

The Court shall in all case direct notice to the opposite party:

Provided that where it is proposed to grant an injunction without giving notice of the
application to the opposite party, the Court shall read the reasons for its opinion that the
object of granting the injunction would be defeated by delay, and require the applicant:
To deliver to the opposite party, or to send to him by registered post immediately after the
order granting the injunction has been made a copy of the application for injunction. together
with:

✓ a copy of the affidavit filed in support of the application,

✓ a copy of the plaint, and
✓ copies of documents on which the applicant relies, and
✓ to fie, on the day on which such injunction is granted or on the day immediately
following that day, an affidavit stating that the copies aforesaid have been so
delivered or sent.

➢ Court to dispose of application for injunction within 30 days:

Where an injunction has been granted without giving notice to the opposite party, the Court
shall make an endeavour to finally dispose of the application within 30 days from the date on
which the injunction was granted and where it is unable so to do, it shall record its reasons
for such inability.

❖ Ex-Parte Injunction:

In Morgan Stanley Mutual Fund v. Katrick Das case, the Supreme Court and the factors
which should weigh with a court in the granting of an ex-parte injunction (i.e., done with
respect to or in the interest of one party):

➢ whether irreparable or serious mischief will er sue to the plaintiff;

➢ whether the refusal of ex-parte injunction would involve greater injustice than grant
of it would involve;
➢ the court will also consider the time at which the plaintiff first had notice of the act
complained of so that the making of an improper order against a party in his absence is
prevented;
➢ the court will consider whether the plaintiff had consented for some time and in such
circumstances, it will not grant ex-parte injunction;
➢ the court would expect a party applying for ex-parte junction to show utmost good
faith in making the application;
➢ even if granted, the ex-parte injunction would be for a limited period of time;
➢ general principles like prima facie case, balance of convenience and repairable loss
would also be considered by the court.

❖ Appeal

Appeal lies against an order granting or refusing to grant injunction.

❖ Revision

Order granting or refusing an injunction means a case decided within the meaning of Section
115 of the Code and therefore a revision lies against such an order.
 Question 28: Appeals
The term ‘appeal’ has not been defined under the Code. The Black’s Law Dictionary, explains
it as “the complaint to a superior court for an injustice done or error committed by an
inferior one, whose judgment or decision the superior court is called upon to correct or
reverse. It is the removal of a cause from a Court of inferior jurisdiction to one of superior
jurisdiction, for the purpose of obtaining a review and retrial”. Section 90-109 and Order
41-43, 45 of the Code deals with Appeals.

❖ Essentials of Appealing Cases:

An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on
questions of law & fact to confirm, reverse, modify the decision. The essentials of appealing
cases can be narrowed down to 3 elements:

1. A decree passed by a judicial/administrative authority;

2. An aggrieved person, not necessarily a party to the original proceeding; and
3. A reviewing body instituted for the purposes of entertaining such appeals.

❖ Right to Appeal:

The right to appeal is a statutory & substantive one.

➢ One right to appeal: A party aggrieved by any decision of an inferior Court has at least
one right to appeal to a higher authority under Section 96 of the Code.
➢ No right to appeal: No person has a right to appeal against a decision unless he is a
party to the suit, except on special leave of the Court.

❖ Distinction between Suit and Appeal

Suit Appeal

Where a cause is created and issues are An appeal only reviews & corrects the
disputed on questions of both facts and law, proceedings in a case already constituted
it is known as a suit. but does not create a cause.

A suit is an attempt to achieve an end via a As per Dayawati v. Inderjit, it is the

legal procedure instituted in a Court of law continuation of a suit in certain
for enforcing one’s right/claim. situations.

An appeal is filed in an Appellate Court

A suit is filed in the lowest Court in its
for the purposes of reviewing the
respective hierarchy for trial.
decision of the inferior Court.
❖ The distinction between Appeal and Revision

Appeal Revision

A revision to High Court is available only in

An appeal lies to a Superior Court from every
those cases and against such orders where
original decree unless expressly barred.
no appeal lies.

A right of appeal is one of substantive nature There is no such right of revision because
conferred by the statute. revisional power is purely discretionary.

An appellate jurisdiction can be exercised

only through a memorandum of appeal filed The revisional jurisdiction can be exercised
before the Appellate Court by the aggrieved suo-motu as well.
party and cannot be exercised suo-motu.

An application for appeal is maintainable on An application for revision is maintainable

legal grants as well as on question of fact. on the ground of jurisdictional error.

An appeal abates (stops) if the legal

A revision may not abate and the High
representative of the deceased is not
Court has a right to bring the proper
brought on record within the time allowed by
parties before the Court at any time.
law.

The High Court or the revisional Court

A Court of appeal can, in the exercise of its
cannot, in the exercise of its revisional
powers, set aside the findings of facts of
powers, set aside the findings of facts of
subordinate Courts.
subordinate Courts.

❖ Conversion of an Appeal into Revision:

In the case of Bahori v. Vidya Ram, it was held that since there’s no specific provision under
the CPC for the conversion of an appeal into a revision or vice versa, the exercise of power by
the Court has to be only under Section 151. Further, the inherent powers of the Court,
though discretionary, permit it to pass such orders as may be required to meet the ends of
justice. The only precondition to such conversion is that due procedure is adhered to during
the filing of the original appeal/revision.

❖ Forms of Appeal:

Appeals may be broadly classified into two kinds:

➢ First appeal; and

➢ Second appeal.
The sub-categories under appeals are:

➢ Appeal from original decree;

➢ Appeal from order;
➢ Appeal from appellate decree/second appeal/to High Court;
➢ Appeal to the Supreme Court.

❖ First Appeal:

Section 96 of the Code provides that an appeal shall lie from a decree passed by any Court
exercising original jurisdiction to the authorized appellate Courts, except where expressly
prohibited. A combined reading of Sections 2(2), 2(9), & 96 of the CPC indicates that a
regular First appeal may/may not be maintainable against certain adjudications.

❖ Second Appeal:

Section 100 of the Code provides for a second appeal under this code. It states that an
appeal shall lie to the High Court from a decree passed in the first appeal by a subordinate
Court, excepting the provisions speaking to the contrary. The scope of exercise of
jurisdiction under this section is limited to a substantial question of law framed at the time
of admission of appeal or otherwise.

❖ Who Can & Cannot Appeal:

1. Any person adversely affected by the decision of a lower Court can appeal to the
higher appellate authority on a substantial question of law.
2. A party who waives his/her right to prefer an appeal against a judgment cannot file it
at a later stage.
3. If a party ratifies that decision and accepts the benefits provided under it, it may be
estopped from appealing that judgment in a higher forum.
4. The rule in a case where an appeal is preferred not against the originally opposite
parties but against a co-defendant/co-plaintiff on a question of law, it could be
allowed.

❖ Appeal against Ex-parte Decree

In the first appeal under Section 96(2), the defendant on the merits of the suit can
contend that the materials brought on record by the plaintiff were insufficient for passing a
decree in his favour or that the suit was not otherwise maintainable; or he may make an
application to set aside such order.

❖ No Appeal against Consent Decree/ Petty Case

As per Section 96(3), based on the broad principle of estoppel, declares that no decree
passed by the consent of the parties shall be appealable.

As per Section 96(4) bars appeal except on points of law in cases where the value of the
subject-matter of the original suit does not exceed Rs. 10,000, as cognizable by the Court of
Small Causes.
❖ Appeal against Preliminary Decree:

Section 97 provides that the failure to appeal against a preliminary decree is a bar to raising
any objection to it in the appeal against a final decree.

The object of the section is that questions which have been urged by the parties & decided
by the Court at the stage of the preliminary decree will not be open for re-agitation at the
stage of preparation of the final decree. It'd be considered as finally decided if no appeal is
preferred against it.

❖ Forum and Presentation of Appeal:

1. 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.
2. 0rder 41 provides the requirements for a valid presentation of an appeal has to be
made by way of a memorandum of appeal which lays down the grounds for inviting such
judicial examination of a decree of a lower Court.

❖ Merger and Cross-Objections:

1. Any decree passed by the appellate Court is a decree in the suit. As a general rule, the
appellate judgment stands in the place of the original judgment for all purposes, i.e.,
the decree of the lower Court merges in the decree of the Superior Court.
2. According to 0.41, R.22(1) & 33, cross-objections can be made by the
defendants.

❖ Powers of Appellate Court:

Section 107 prescribes the powers of an appellate Court:

➢ To remand a case;
➢ To frame issues & refer them for trial;
➢ Reappraisal of evidence when a finding of fact is challenged before it;
➢ To summon witnesses;
➢ Can reverse inference of lower Court, if not justified;
➢ Appreciation of evidence.

❖ Duties of an Appellate Court:

➢ The appellate Court has a duty to analyse the factual position in the background of
principles of law involved and then decide the appeal.
➢ To provide cogent reasons for setting aside a judgment of an inferior Court.
➢ To explore into the question of limitation under Section 3(1) of the Limitation Act.
➢ To decide the appeal in compliance with the scope & powers conferred on it under
Section 96 read with Order 41, Rule 31 of the CPC.

❖ Appeal to Supreme Court:

Article 133 of the Constitution of India & Section 109 of the Code provides the
conditions under which an appeal could be filed to the Supreme Court:
 ➢ From a judgment, decree, or final order of the High Court;
➢ A case pertaining to a substantial question of law of general significance;
➢ The High Court opines it to be fit for the Supreme Court to deal with such a question.

Question 29: Inherent Powers of the Court

Meaning of ‘inherent’ is existing in something as a permanent, absolute, inseparable, essential
or characteristic attribute. Inherent powers of courts are those powers which may be
applied by the court to render justice between the parties before it.

It is the duty of the Courts to serve justice in every case, whether given in this code or not,
brings with it the important power to do justice in the absence of a definite or separate
provision. This power is said to be the inherent power that is maintained by the court, though
not conferred. Section 151 of the Civil Procedure Code deals with the inherent powers of
the court.

❖ Provisions relating to Inherent Powers of the Court

The law relating to inherent powers of Court is mentioned in Section 148 to Section 153A
of the Code, which deals with the exercise of powers in different situations. They are:

➢ Section 148 deals with grant or enlargement of time;

➢ Section 149 deals with payment of court fees;
➢ Section 150 deals with the transfer of business;
➢ Section 151 protects the inherent powers of the courts; and
➢ Section 152, 153 and Section 153A deals with amendments in judgments, decrees or
orders or in separate proceedings.

➢ Enlargement of Time:

According to Section 148 of the Code states that where any term is fixed or awarded by
the Court for the doing of any act, it is the discretionary power of the Court that Court may
enlarge such period from time to time, even though the term originally fixed or awarded may
have departed.

In simple words, when a term is fixed by provision for the doing of any act, the Court has the
power to extend such period. The power is limited to the extension of the time fixed by it
and is of a discretionary nature.

➢ Payment of Court Fees:

According to Section 149 of Code, “Where the entire or a portion of any fee commanded
for any certificate by the law for the time being in force relating to court-fees has not been
met, the Court may, in its discretion, at any step, permit the person by whom such fee is
payable, to pay the whole or part as the case may be, of such court-fee; and upon such
payment, the document, in regard of which such fee is payable, shall have the same force and
result as if such fee had been paid in the initial situation.”
If the necessary court fee is paid within the time set by the court, it cannot be negotiated
as time-barred. Such payment made within the time fixed by the court retrospectively
validates a faulty document. The power of the court is discretionary and must be exercised
only in the importance of justice.

➢ Transfer of Business:

According to Section 150 of Code, “Save as otherwise granted, where the business of any
Court is assigned to any other Court, the Court to which the business is so assigned shall
exercise the same authority and shall perform the same duties given or commanded by CPC
upon the transfer court.”

➢ Inherent Powers of the Court:

Section 151 deals with “Saving of inherent powers of Court”. This Section states that
‘Nothing in CPC shall be considered to restrict or otherwise affect the inherent power of the
Court to make such orders as may be important for the ends of justice or to limit abuse of
the method of the Court.’

It is not obligatory for the court to wait for the law made by parliament or order from the
higher judiciary. Court has discretionary or inherent power to make such order which is not
given in terms of laws for the security of justice or to check misuse of the method of the
Court.

The scope of exercising of Section 151 of CPC can be represented by some cases as
follows:

➢ The court may recheck its orders and resolve errors;

➢ Issuance of provisional sanctions when the case is not included by Order 39 or to
place alongside an ‘ex-parte’ order;
➢ Illegal orders or orders passed without jurisdiction can be set-aside;
➢ Subsequent events in the case can be taken into consideration by the court;
➢ Power of Court to continue trial ‘in camera’ or prevent disclosure of its proceedings;
➢ The court can erase remarks made against a Judge; and
➢ The court can improve the suit and re-hear on merit or re-examine its order.

❖ Ends of Justice

In the case of Debendranath v Satya Bala Dass, the meaning of “ends of justice” was
explained. It was held that “ends of justice” are solemn words, also these words are not
merely a polite expression as per juristic methodology. These words also indicate that
Justice is the pursuit and end of all law.

❖ Abuse of Process of the Court:

Section 151 of the Code provides for the exercise of inherent powers to check the
infringement of the process of the court. Abuse of the powers of the court which happens in
unfairness to party needs to get relief.
The injustice so done to the party must be given relief on the basis of the doctrine of actus
curiae neminem gravabit (an act of the court shall prejudice no one).

When a party practices fraud on the court or on a party to a proceeding, the remedies have
to be provided on the basis of inherent power.

❖ Amendment of judgments, decrees, orders, and other records

Section 152 of Code deals with the “Amendment of judgements, decrees, and order”.

According to Section 152, Court has the power to change (either by own actions or on the
application of any of the parties) written or arithmetical mistakes in judgments, decrees or
orders or faults arising from an unexpected lapse or imperfection.

Section 153 deals with the “General authority to amend”. This Section empowers the
court to amend any fault and error in any proceedings in suits and all required improvements
shall be made for the purpose of arranging raised issues or depending on such proceeding.

Section 152 and 153 of the CPC makes it clear that the court may correct any blunders
in their experiences at any time.

❖ Limitation

Limitation to exercise of inherent powers of the court are as follows:

1. They can be applied only in the deficiency of particular provisions in the Code;
2. They cannot be applied in dispute with what has been expressly given in the code;
3. They can be applied in rare or exceptional cases;
4. While operating the powers, the court has to follow the method shown by the
legislature;
5. Courts can neither exercise jurisdiction nor entrust in them by law;
6. To abide by the principle of Res Judicata i.e., not to open the issues which have
already been decided finally;
7. To pick a mediator to make an award afresh;
8. Substantive rights of the parties shall not be taken away;
9. To limit a party from taking proceedings in a court of law; and
10. To set apart an order which was valid at the moment of its issuance.

Question 30: Caveat

Section 148A. of the Code contains provisions relating to Caveat. The Code does not
define the term Caveat, but in the case of Nirmal Chand v. Girindra Narayan, the court
defined “caveat” as a warning given by an individual to the court that no order or judgment
shall be passed without giving notice or without hearing the caveator.

The person who files a caveat is called the Caveator and the person who has instituted a
suit or is likely to do so is called Caveatee. The main object of caveat is to ensure that the
court does not pass ex-parte orders and that the interests of the caveator are protected.
❖ Rights to Lodge a Caveat:

According to Section 148A, when people apprehend that some case against them is filed or is
about to be filed in any court of law in any manner, they have a right to lodge a caveat.

The Caveat may be lodged in the form of a petition under the following circumstances:

1. During an ongoing suit or litigation and in that the application is already been made or
is expected to;
2. The suit is about to be instituted and, in that suit, an application is expected to be
made.

❖ Notice

If subsequent to the filing of a caveat, any application is made in any suit or legal proceeding,
the court is required to give notice about such an application to the caveator. When a notice
has been served on the applicant, the applicant at the expense of the caveator is required to
provide the caveator with a copy of the application made by him along with any document that
may have been submitted with the application. If the court or applicant ignores the caveat
and does not inform the caveator, the decree or judgment passed becomes null and void.

❖ Rights and Duties:

1. Of the Caveator:

This clause is directive in nature. The person by whom the Caveat has been lodged is called
a Caveator. He shall:

➢ Serve a notice of the Caveat by registered post, acknowledgement due;

➢ On the person by whom the application has been made;
➢ On the person by whom the application is expected to be made.

2. Of the Court:

After a Caveat has been lodged, if any application is filed in any suit or proceeding, the Court
shall serve a notice of the application on the Caveator. This clause is mandatory in nature.

3. Of the Applicant:

It is directive in nature and says that, where a notice of any Caveat has been served on the
applicant, he shall furnish, at the expense of the Caveator:

➢ A copy of the application made by him.

➢ Copies of any paper or document which has been filed by him in support of his
application.
➢ Copies of any paper or document which may be filed by him in support of his
application
❖ Limitation of Time

As provided by the Section in Clause 5, the caveat stays in force for a period of 90
days. If within these 90 days an application is filed, then the court as well as the applicant,
has to give a notice to the caveator.

However, if no caveat is filed within these 90 days, then no one has the duty to inform the
caveator, i.e., if the application is filed after the expiration of such period the caveat stands
null and void. If the caveator still wants to be informed then a fresh caveat needs to be
lodged for the next 90 days.

Question 31: Silent Features of Limitation Act

The Law of Limitation finds its root in the maxims:

➢ "Interest Reipublicae Ut Sit Finis Litium" which means that in the interest of the
state as a whole there should be a limit to litigation, and
➢ "Vigilantibus Non Dormientibus Jura Subveniunt" which means the law will assist only
those who are vigilant with their rights and not those who sleep upon it.

The law of limitation specifies the statutory time frame within which a person may initiate a
legal proceeding. The law of limitation developed in stages and finally took the shape of the
Limitation Act, 1963 containing 5 Parts and 32 Sections.

❖ Object of the Act:

The main purpose of this Act is to prevent litigation from being dragged for a long time and
quick disposal of cases which leads to effective litigation.

➢ Retrospective Operations:

In BK Education Services Private Limited v. Parag Gupta and Associates, the Supreme
Court clarified that since the law of limitation is procedural in nature, it will be applied
retrospectively.

❖ Limitation Bars Remedy but does not bar Defence:

Section 3 lays down the general rule that every suit, appeal or application brought
before the Court after the expiry of the prescribed time the court shall dismiss such
suit, appeal or application.

The Supreme Court in Punjab National Bank and Ors v. Surendra Prasad Sinha held that
the rules of limitation are not meant to destroy the rights of the parties. Section 3 only bars
the remedy but does not destroy the right which the remedy relates to.
❖ Plea of Limitation: Duty of Court

The Court is under an obligation to dismiss a suit if it is filed beyond the time
prescribed by the Limitation Act. The provisions of Section 3 are mandatory and the Court
will not proceed with the suit if it is barred by time.

It was held in Craft Centre v. Koncherry Coir Factories, it is the duty of the plaintiff to
convince the Court that his suit is within time. If it is out of time and the plaintiff relies on
any acknowledgments in order to save the limitations then he has to plead them or prove, if
denied.

❖ Starting point of Limitation

The time from which period of limitation begins to run depends upon the subject matter of
the case and a specific starting point of such period is provided extensively by the Schedule
to the Act. The Supreme Court in Trustee's Port Bombay v. The Premier Automobile held
that the starting point of limitation is the accrual of the cause of action.

➢ Expiry of Period of Limitation When Court is Closed:

Section 4 of the Limitation Act provides that when a court is closed on a certain day
and the period of limitation expires on such a day, then any suit, appeal or application
shall be taken up by the Court on the day on which it reopens. This means that a party is
prevented not by his own fault but because of the Court being closed on that day.

❖ Condonation of Delay

Condonation of delay means that extension of time given in certain cases provided there is
sufficient cause for such delay.

Section 5 talks about the extension of the prescribed period in certain cases. It
provides that if the appellant or the applicant satisfies the court that he had sufficient
cause to not prefer the appeal or application within that period, such appeal or application can
be admitted after the prescribed time.

➢ Sufficient Cause:

In State (NCT of Delhi) v. Ahmed Jaan, the court held that the expression “sufficient
cause” should receive a liberal construction.

The Bombay High Court in Brij Indar Singh v. Kansi Ram observed that the true guide for
the Court while exercising jurisdiction under Section 5 is whether the litigant acted with
sensible and reasonable diligence in prosecuting the appeal.

In Collector (LA) v. Katiji (1987), an appeal was preferred by the State of Jammu and
Kashmir against the decision of enhancing the compensation in the matter of acquisition of
land for a public purpose, raising important questions with regard to principles of valuation.
An appeal for condonation of delay was filed but was dismissed by the High Court as time-
barred because it was four days late. The State later appealed to the Supreme Court by
special leave.
The Supreme Court allowed the appeal and ruled that the expression sufficient cause under
Section 5 of the Limitation Act, 1963 is adequately elastic to enable the Court to do
substantial justice to parties. The order of the High Court dismissing the appeal as time-
barred was set aside and the matter was remitted back to the High Court to dispose of the
appeal on merit after affording a reasonable opportunity of hearing to both sides.

Section 6 of the Limitation Act speaks about Legal Disability. Section 6 of the Limitation
Act 1963 provides that no limitation will apply to a case in which person seeing was
disqualified at the time when the cause of action arose provided the suit is brought within 3
years of the time when the disqualification cease. Section 6 of the said Act gives minors or
lunatics an extended period for filing a suit or application.

➢ Legal Disability: Section 6

Where a person entitled to institute a suit or make an application for the execution of a
decree is, at the time from which the prescribed period is to be reckoned, a minor or
insane, or an idiot, he may institute the suit or make the application within the same
period after the disability has ceases, as would otherwise have been allowed from the
time specified therefore in the third column of the Schedule.

Where such person is, at the time from which the prescribed period it to be reckoned,
affected by two such disabilities, or where, before his disability has ceased, he is
affected by another disability, he may institute the suit or make the application within
the same period after both disabilities have ceased, as would otherwise have been
allowed from the time so specified.

Where the disability continues up-to-the death of that person, his legal representative
may institute the suit or make the application within the same period after the death,
as would otherwise have been allowed from the time so specified.

Where the legal representative referred to in sub-section (3) is, at the date of the
death of the person whom he represents. Affected by any such disability, the rules
contained in sub-sections (1) and (2) shall apply.

Where a person under disability dies after the disability ceases but within the period
allowed to him under this section, his legal representative may institute the suit or make
the application within the same period after the death, as would otherwise have been
available to that person had he not died.

Explanation: For the purposes of this section ‘minor’ includes a child in the womb.

Notes: This section corresponds with section 6 of the old Act with some changes.

Object:

Limitation begins to run from the date of accrual of cause of action but section 6 of
the Limitation Act is one of the exceptions to this general rule. Under these exceptional
circumstances, the period of limitation does not run from the date of accrual of the
cause of action but runs from the subsequent date, for example, the date on which
disabilities ceases.

Scope:

✓ It is applicable only to suits or application for execution of decrees.

✓ It is not applicable to the cases for which a period of limitation is not prescribed
by other Acts.
✓ It is not applied to minors entitled to prefer an appeal.
✓ The disability mentioned under section 6 of the said Act is exhaustive and of any
other disability does not come under this section.

❖ Exclusion of Time

Sections 12-15 deals with the exclusion of time under the Limitation Act. The following
time has to be excluded from computing the period of limitation:

1. The day on which the period of limitation for any suit, appeal or application has been
reckoned.
2. The day on which the judgement complained of was pronounced.
3. Time taken for obtaining a copy of the decree, sentence, order appealed from or
sought to be revised or reviewed.
4. Time requisite for obtaining a copy of the judgement.
5. Time requisite for obtaining a copy of the award.
6. Time spent by the applicant in prosecuting in good faith shall be excluded.
7. Time spent by the party should be prosecuting another civil proceeding with due
diligence
8. The day of the issuance and withdrawal of the stay order or injunction
9. Time spent on obtaining the consent or sanction of the government
10. Time during which the receiver or liquidator was appointed for winding up of company.
11. The time during which the defendant is absent from India and under territory outside
India under administration of the Central Government.

❖ Postponement of Limitation

Section 16 to 23 of the Act deals with the postponement of limitation. It means

extending the period of limitation.

1. Where the suit or application is based upon fraud, mistake or concealment by fraud
unless the plaintiff or applicant has discovered the fraud, concealment or mistake.
2. In case of an acknowledgment of liability in respect of any property or right the time
when the acknowledgment was signed.
3. Where payment on account of a debt or of interest on legacy, when payment was
made.
4. Where there is a continuing breach of contract or tort a fresh period of limitation will
start at the moment when the breach of contract or tort continues. 5. In case of suits
 for compensation for acts not actionable without special damage the limitation period
will start from the time when the injury occurs.

❖ Adverse Possession

Section 27 talks about Adverse Possession. It means someone who is in the possession of
another's land for an extended period of time can claim a legal title over it. The title of the
property will vest with the person who resides in or is in possession of the land or property
for a long period. If the rightful owner sleeps over his right, then the right of the owner will
be extinguished and the possessor of the property will confer a good title over that land.

❖ Void Order: Limitation

An order that exceeds the jurisdiction of the court is void or voidable and can be taken up in
any proceeding in any court where the validity of the order comes into question.

In Sukhdev Raj v. State of Punjab the court held that even for void orders if the suit is
filed then the period of limitation prescribed by the Schedule attached to the Limitation Act
is applicable.

❖ Union Carbide Corporation v. Union of India (1991)

Union Carbide (India) Ltd (UCIL) was a subsidiary of the Union Carbide Corporation (UCC),
New York. Methyl Isocyanide Gas (MIC) considered the most toxic chemical in industrial use
leaked from the tanks used for its storage in the Union Carbide Company at Bhopal causing
the death of thousands of people.

The Central Government passed the Bhopal Gas Leak Disaster (Processing of Claims) Act,
1985 to authorise the Central Government to ensure that claims arising out of or in
connection to the Bhopal Gas Leak are dealt with effectively. The Union of India
instituted an action on behalf of the victims for the award of compensation before the US
District Court, New York.

Justice Keenan of the Federal District Court dismissed the case as forum non conviniens
(meaning that another court is more appropriate and sends the case to such court).

The Bhopal District Court made an order for payment of compensation of rupees 350 crores
as interim compensation. This award was challenged in the High Court and the compensation
amount reduced to rupees 250 crores.

Later, both the UCC and the Union of India appealed by special leave against the order of the
High Court. The Supreme Court recorded settlement of claims in the suit for U.S. Dollar 470
million and for the termination of the civil and criminal proceeding.

Soon petitions were filed in the Supreme Court challenging the constitutional validity of the
Act. The judgment, in this case, was pronounced on 22 December 1989 upholding the validity
of the Act.

Section 8 of the Bhopal Act provides that if a claim is registered under the provisions
of this Act then the provisions of the Limitation Act, 1963 will be excluded. By virtue of
Section 11 the Bhopal Act will have an overriding effect over any other law inconsistent with
this Act.

Hence, the Union Carbide case serves as an exception to the Limitation Act, 1963 from
the purview of the Bhopal Act, 1985.

Question 32: Order 35: Inter-pleader Suits

Order 35 and Section 88 of the Code deals with the provisions of inter-pleader suit.
Generally, ordinary suits that are filed before the Hon'ble court are between two parties,
the plaintiff and the defendant. But the interpleader suit is unlike the ordinary suits
between the two defendants who fight for a claim over a particular good, debt, or
chattel. The plaintiff in such suits usually do not have any real interest in the subject matter
of the suit and institute the suit to only make sure that the property in dispute is put in the
custody of the actual owner.

➢ Illustration:

A is in possession of the property claimed by B and C adversely. A does not claim any interest
in the property and is ready to deliver it to the rightful owner he can file an interpleader
suit.

❖ Object of Inter-pleader Suit:

The main object to filing an interpleader suit is to get claims of rival defendants
adjudicated. It is a process wherein the plaintiff calls upon the rival claimants to appear
before the court and get their respective claims decided.

❖ Conditions:

As per Section 88, for filing an interpleader suit there must be satisfying the following
conditions:

1. There must be some debt, sum of money or other property movable or immovable in
dispute;
2. Two or more persons must be claiming it adversely to one another:
3. The plaintiff does not claim any interest in it except the charges, or cost and is ready
to pay or deliver it to the right claimant;
4. There must not be pending suit in which the right of the rival claimants can be
properly adjudicated.

❖ Procedure:

Order 35 laid down following condition which shall be satisfied by the plaintiff who
seeks to file an interpleader suit:

1. The plaintiff shall state that he has no interest in the subject matter in dispute other
than the charges or costs:
 2. The claim made by the defendants severally and
3. There is no collusion between the plaintiff and any of the defendants.

In the case of Asaan Ali v. Sarada Charan Kastagir, the Calcutta High Court held that for
a suit to be an interpleader suit, the applicant should be willing to hand over the property
to the claimant and should not have any interest in it.

But if the applicant has an interest in the suit then such suit shall be dismissed on the
discovery of the fact that the plaintiff has an interest in the subject matter of the suit.

During the pendency of the interpleader suit, if any of the defendants filed a suit
against the Plaintiff, then that suit shall be stayed under Sec. 10 of Code (i.e., Res
Sub-judice).

❖ Liability of the Plaintiff:

At the first hearing of the interpleader suit the court may declare that the plaintiff is
discharged from all liability, and award him his costs and dismiss him from the suit, unless
the justice or convenience so requires his presence.