NATIONAL LAW INSTITUTE UNIVERSITY

BHOPAL

CODE OF CIVIL PROCEDURE, 1908

PROJECT

ON

CONDITIONAL ORDERS BY TRIAL COURT UNDER THE CODE OF CIVIL

PROCEDURE, 1908
V SEMESTER

SUBMITTED TO: SUBMITTED BY:

PROF. AMIT PRATAP SINGH SHASHWAT JOSHI

(2018BALLB128)
 TABLE OF CONTENTS

(2018BALLB128)....................................................................................................................................1
TABLE OF CONTENTS.............................................................................................................................2
ACKNOWLEDGEMENT...........................................................................................................................3
ABSTRACT..............................................................................................................................................4
Statement of Problem...........................................................................................................................5
Objectives of the Study..........................................................................................................................5
Research Methodology..........................................................................................................................5
Research Questions...............................................................................................................................5
REVIEW OF LITERATURE........................................................................................................................6
Introduction...........................................................................................................................................7
Analysis of Various Cases.......................................................................................................................8
Appeals to the Conditional Order........................................................................................................10
Conclusion...........................................................................................................................................13
BIBLIOGRAPHY.....................................................................................................................................14
 ACKNOWLEDGEMENT

I extend my sincere gratitude to everyone who helped me with the project. I am very thankful
towards our Law of Contracts teacher, Prof. AMIT PRATAP SINGH, who has been a
wonderful mentor and been a constant support throughout. I am also thankful to the Library
Administration for the provision of necessary books and texts needed for the completion of
this project. Finally, I would like to thank my classmates and seniors for all their guidance.

It would not have been possible without the kind support and help of aforementioned
individuals and organizations. I would like to extend my sincere thanks to all of them.

Shashwat Joshi
 ABSTRACT

Courts are allowed to make conditional orders only in circumstances where they believe that a
particular claim or defence may succeed but it is improbable that it will. In such circumstances the
court than give out an order that depends on certain conditions being fulfilled by one party to the suit
for it to have effect. The law also clearly gives out the conditions that the court may require a party to
fulfil in a conditional order. They are viz. require for the deposit of a certain amount of money to the
court, require one party to do something in relation to the defence that the court might think can
succeed, require the party to give a security or a surety for the restitution of costs that are incurred, it
may also require a party to take on all the costs that the other party may incur during the pendency of
the case and finally the court is required to highlight the consequences of non-compliance with the
conditions of the conditional order. These consequences can even go up to passing a judgment
against the non-compliant party. It is important to discuss the rules that have been utilised and
applied to expand or at times limit the powers of a court regarding conditional orders and their
change particularly enlargement of time.

KEYWORDS : Conditional, Orders, CPC,1908, Order 8A, Rule 6, Section 148.

 Statement of Problem

It is a discretionary power of the court to order interrogatories against the opponent party but
such power shall be exercised very cautiously, to counter scandalous, mala fide or immaterial
interrogatories.

Objectives of the Study

The following objectives are involved in this study:

1. To know what conditional orders are under the CPC, 1908.
2. To understand what kind of orders can be granted under the ambit of conditional orders.
3. To understand the rules regarding non compliance of orders and the position of courts with
regards to such non compliance.

Research Methodology

The researcher has used doctrinal method of data collection and has extensively used the
available material on the subject by various experts and has analyzed the provisions of law
regarding the same as well. Hypothesis The concept of interrogatories narrows down the
points in issue by saving the parties from extra expenses through enabling them to obtain all
information related to material facts of the case.

Research Questions

The present study aims to find answers to the following questions:

1. What are conditional orders given by trial courts?
2. What are the issues that arise when conditional orders are given and not followed?
3. What is the general law of the land regarding these issues if such a generalised rule for
application exists?
 REVIEW OF LITERATURE

C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 1963, (EBC Publishing
Lucknow 2017)
Civil Procedure by C.K.Takwani is an authority on the subject. It is well acclaimed as
compact book written in a lucid style. The commentary explains the theoretical as well as
practical aspects of civil procedure. The eighth edition of the book has been made more
informative and useful.Latest statutory amendments and case laws have been included. The
author C.K.Takwani has taken care to ensure that the work continues to remain introductory
in nature and does not lose its character as a "Student Edition". The book is prescribed in
almost all universities in India. The book, though written for students and junior members of
the Bar, is a great reference tool for lawyers and judges. The book is definitely a prized
collection for any library. Book gives a detailed analysis of Section 30 order 11, i.e.
interrogatories.
 Introduction

Conditional orders can be made by courts on applications made under Order 8 A. 1 This has
been provided for under rule 6 of Order 8A which reads as under:
“6. Orders that may be made by Court.—(1) On an application made under this Order, the
Court may make such orders that it may deem fit in its discretion including the following:—
(a) judgment on the claim;
(b) conditional order in accordance with Rule 7 mentioned hereunder;…..2”
As seen from Rule 6 the proper meaning and nuances of conditional orders are explicitly
given in Rule 7 of Order 8A.3
“ 7. Conditional order.—
(1) Where it appears to the Court that it is possible that a claim or defence may succeed but it
is improbable that it shall do so, the Court may make a conditional order as set forth in Rule 6
(1) (b).
(2) Where the Court makes a conditional order, it may:—
(a) make it subject to all or any of the following conditions:—
(i) require a party to deposit a sum of money in the Court;
(ii) require a party to take a specified step in relation to the claim or defence, as the case may
be;
(iii) require a party, as the case may be, to give such security or provide such surety for
restitution of costs as the Court deems fit and proper;
(iv) impose such other conditions, including providing security for restitution of losses that
any party is likely to suffer during the pendency of the suit, as the Court may deem fit in its
discretion; and (b) specify the consequences of the failure to comply with the conditional
order, including passing a judgment against the party that have not complied with the
conditional order.”
As can be seen above the courts are allowed to make conditional orders only in circumstances
where they believe that a particular claim or defence may succeed but it is improbable that it
will. In such circumstances the court than give out an order that depends on certain conditions
being fulfilled by one party to the suit for it to have effect. The law also clearly gives out the
conditions that the court may require a party to fulfil in a conditional order. They are viz.
require for the deposit of a certain amount of money to the court, require one party to do
something in relation to the defence that the court might think can succeed, require the party
to give a security or a surety for the restitution of costs that are incurred, it may also require a
party to take on all the costs that the other party may incur during the pendency of the case
1
Code of Civil Procedure [CPC], 1908, Order 8A, No. 5, Act of Parliament, 1908 (India).
2
CPC, Order 8A, Rule 6.
3
CPC, Order 8A, Rule 7.
and finally the court is required to highlight the consequences of non compliance with the
conditions of the conditional order. These consequences can even go up to passing a
judgment against the non compliant party.
At this juncture it needs to be clarified that in this project I shall be dealing with conditional
orders given under the Code of Civil Procedure of 1908 [ hereinafter CPC] by trial courts
only i.e., the court of first instance for the cases. However, in my pursuit to highlight the
orders I will rely on appellate court judgments in so far as they highlight the reasoning and
the conditions of the order as has been laid down by the trial courts before them and look into
the legality of the said conditional orders.

Analysis of Various Cases

When talking about conditional orders it becomes imperative to also talk about section 148 of
the CPC.4 Section 148 talks about the enlargement of time under conditional orders that can
be allowed by courts. Th enlargement of time essentially referring to conditions where the
party that has to fulfil certain conditions in the order is unable to do so within the prescribed
time period and as such files for an enlargement of time under this section. It has been shown
threw various precedents in the country that the courts are allowed to take into consideration
various factors such as a party’s inability to comply with the order within the time period and
certain other strenuous circumstances. The courts however, have made it very clear that these
circumstances need to be genuine and cannot be seen as a tactic of the party to delay the
judgment. One case that talks about the non-compliance of parties to a conditional order and
the powers that courts have under Section 148 is the case of S. Mahalinga Bhatta v. Assanare
Beary.5
In this particular case there was a conditional order passed by the trial court that the petitioner
needed to submit a fee of rupees 30 before a particular date and failure to do so would lead to
the dismissal of the suit. The petitioner failed to submit the fee and the court dismissed the
case on grounds of non-compliance. The petitioner however, before the dismissal however,
after such a period prescribed by the court for submission of the fee filed for enlargement of
time. The matter before the High Court of Kerala then became whether a court under its
powers of enlargement of time under section 148 had the power to enlarge the time after the
period for fulfilment of conditions had passed by.
There were a number of submission and claims before the court. The counsel in this case
clearly highlighted that such an enlargement of time could not be made due to the fact that
the court no longer had jurisdiction over the matter since the time for fulfilment of the
condition had passed by and as such the court had become functus officio in the case. The
only time where such a order of enlargement of time can be passed is before the expiry of the
time period for the fulfilment of the conditions laid down. The counsel laid reliance on the
case of Kallyani Amma v. Kunhikrishnan6 which highlighted the fact that the mandate of a

4
CPC, Section 148.
5
S. Mahalinga Bhatta v. Assanare Beary, AIR 1973 Ker 185.
6
Kallyani Amma v. Kunhikrishana, 1971 Ker LT 309.
court to pass an order of enlargement under section 148 only existed as long as the time
period for fulfilment had not passed as stated below:
“ So, it is clear that when a court passed a conditional order or decree in proceeding directing
a party to deposit costs or other sum of money within a stipulated time with the direction that
if the deposit or payment was made certain consequences will follow and on failure to deposit
the proceeding will stand dismissed, the court which passed the decree or order will have no
jurisdiction to extend the time as the order worked itself out. Such an order cannot be restored
on compassionate ground unless within the stipulated time the petition is not filed to get the
time extended. In the absence of any such petition the courts would not be justified in
extending the time. My attention has been drawn to an unreported decision in C.R.P. No.
1287 of 1969 of this court. That is not an authority on the question involved in the case. The
learned judge who disposed of that petition, allowed the order of the lower court to stand on
the ground that under S.151 C. P. C. the court has always the right to extend the time. The
facts of the case are not set-forth in that decision and if the decision is to be relied upon on a
circumstance like the one on hand,1 am not prepared to agree that S.151 could be made use
of in extending the time if the order stipulating the time to deposit the costs or the amount, as
the case may be, had worked itself out.”
It can now be seen that the opinion in cases with regards to conditional orders is that once the
time period for the fulfilment of the condition laid down has passed the order has essentially
worked itself out and as such is a decided matter therefore, rendering the court functus officio
or a forum whose mandate over the matter has expired. This clarifies further that when a
court is to look into a matter of conditional orders and particularly for enlargement of the
time for fulfilment of such conditions on the basis of compassionate grounds then it needs to
ensure that it still has mandate to do so under the CPC. Otherwise the court clearly is not the
right forum for approach and the petition as such lays dismissed. This view has also been
substantiated by the case of Hajara Umma v. Mohammed Kunhi Haji.7
The courts have also gone into an analysis of section 151 of the CPC 8 as a method to exercise
their inherent powers in order to increase the time in appropriate case for fulfilment of such
conditions. Now a case that deals with this matter is the case of Kanduri Sahu v. Nidhi
Sahu.9 In this case though the High Court of Orissa did admit that the trial court becomes
functus officio on the expiry of the term for fulfilment of the conditions, however, it also
analysed that a court can exercise its inherent powers to increase such a time period in cases
that merit such an increase under section 151 of the CPC. This section not being used by the
courts to exercise their powers in appropriate cases might actually lead to an injustice being
done. The views of the court in this case are clearly highlighted below:
“There are various provisions in the Code prescribing or allowing the doing of an act for
which time is fixed or granted by the Court. In all such cases, the Court has powers under
Section 148 of the Code to enlarge the time, even after expiration of the period originally
fixed. The time granted by the Court for payment of costs, while setting aside an ex parte
7
Hajara Umma v. Mohammed Kunhi Haji, 1968 Ker LJ 873.
8
CPC, Section 151.
9
Kanduri Sahu v. Nidhi Sahu, AIR 1966 Orissa 44.
decree, as a condition precedent thereto, is not an act prescribed or allowed by the Code. The
Court fixes or grants time for payment of the costs, but it is not for doing an act prescribed or
allowed by the Code. Section 148 does not apply to such a case. Section 151 can however, be
invoked in such a case. Nothing in Section 148 would conflict with the exercise of powers
under Section 151 in such cases. Where the trial Court in such a case, without at all adverting
to its powers under Section 151 refused to extend time granted by it for payment of the costs
on the ground that it had no power to extend the same, it failed to exercise jurisdiction vested
in it and its order is liable to be interfered with under Section 115 (b) of the Code.”
Coming back to the Supreme Court case of S. Mhalinga Bhatta, the Supreme court took note
of all of this and many more instances where courts have allowed for the application of
section 151 in appropriate cases. However, the court did also clearly highlight that
appropriate cases are something that need to be looked into. The factual matrix and the
procedural application in each case is imperative to be looked into as there can then occur
instances where petitioners use the law to their benefit in a mala fide manner. This can lead to
a greater injustice and hence it is each courts duty to ensure that the case before it actually
merits such an extension of time especially one being given under the courts inherent powers
under section 151 of the CPC.
The court going into an analysis of the case of Andhra Rice Mills v. Chanchiah 10 pointed out
that “the petition that came up before the Supreme Court for consideration was not one filed
after the expiry of the date for performance of the condition imposed, and it does not appear
to have been stated anywhere in the decision of the Supreme Court that where the order is a
self-working one and the petition is filed after the expiry of the period fixed, the Court will
have jurisdiction to grant the relief of extension of time under Section 148. C.P.C. I am not
therefore, in a position to accept the reasoning given in the decision of the Andhra High
Court referred to above to come to the conclusion that even after the expiry of the period
prescribed in a conditional (self-working) order relief could be granted on an application filed
after the expiry of the time fixed.”
This clearly highlights the fact that the only point of contestation that actually occurs in the
law of conditional orders and the time period being set is the fact that whether the court
allowed for an extension before or after the time period had already expired.

Appeals to the Conditional Order

There have been cases where there has been a direct appeal to the conditional order itself.
The appeals regarding the terms and conditions that were laid down in the conditional order
requiring the court to look into the order by the trial courts and understand what kind of
exigencies had arisen that led to the order being unreasonable to fulfil within the time period
set or whether the order given by the trial court was given without judicious exercise of its
powers under the CPC. A case that deals with such a situation of appeal against the
conditional order and looks into the nature of the conditions to determine whether they were
unreasonable is the case of Balarama Reddi v. Subbarama Reddi. 11 In this case the appeal
10
Andhra Rice Mill v. Chanchiah, (1968) 2 Andh LT 115.
11
Balarama Reddi v. Subbarama Reddi, AIR 1953 Mad 360 .
before the Madras High Court was one that arose due to inability to complete the conditions
of the order within the time limit and the trial court considering the petition as having been
dismissed due to the conditions not being met.
The court looked into various aspects including the powers to grant an enlargement on
compassionate basis under section 148 of the CPC but the court for a major part took notice
of the conditions and whether they were to be construed as unreasonable to be fulfilled within
the time period prescribed due to the emergence of certain exigencies that incapacitated the
petitioner from fulfilling the conditions within the prescribed time. The court looked into
cases dealing with similar situational matrix analysing the case of Ramayya v. Lakshmayya 12
in which the clarity with regards to the order i.e., i) preliminary order and ii) final order was
also looked into. The case of Narayan Putappa v. Vaikunt Subaya 13 looked into similar issues
and finally laid down that an appeal of the order can only be entertained in rare circumstances
when the court can actually ascertain that the situation existed which merited a
compassionate look from the court otherwise the appeal would simply be one that would in
all probability fail under the provisions of the law as laid down below:
“Though pro forma, an appeal may lie, still in the vast majority of cases, the appeal
will be one of those known as 'hopeless', because the conditions imposed by the lower
Court will be reasonable ones and accordingly if they are not fulfilled, the only result will
be that the appeal will be dismissed with costs. It can only therefore be in
exceptional cases such as those where the lower Court has not exercised its discretion
judicially or where quite unreasonable conditions are imposed, that an appeal of this nature
can have any chance of success.”
The Madras High court in this particular case of Balarama Reddi also held the view that the
conditions need to be especially be shown to be onerous and unreasonable in order to merit
such an appeal. The defendant cannot simply not fulfil the conditions within the prescribed
time period and expect the law to give concessions to him simply through an appeal of such
an order as such an order will be considered final. The judge in this particular case did point
out that he was hesitant to follow the precedent laid down in the Ramayya v. Lakshmayya
case, however, the situation according to the case before him did not actually merit the kind
of compassionate consideration as has been envisioned in that case and hence he found
himself to be bound by the precedent.
“The only practicable and possible view to take appears to be that the conditional order,
which is the basis of the rejection of the application, is the only appealable order, if the
petitioner is aggrieved by it in any way or finds it impossible to comply with the conditions
as inequitable or onerous, in which case he should appeal against it within the prescribed
period from the date of such order. If the Court does pass a further discretionary order
varying on his application the conditions of the original order or extending time for
performance which will form a fresh basis for a rejection of the application, it would be open
to an applicant to file an appeal against such an order. It is clearly not open to a petitioner
after such a conditional order is passed against him to do nothing at all as in the present cases
by way of compliance or even by moving the Court before the date fixed for compliance to
12
Ramayya v. Lakshmayya, AIR 1944 Mad 383.
13
Narayan Putappa v. Vaikunt Subaya, (1926) 28 BOMLR 1245.
extend the time, and then to claim a right of appeal from the date on which the dismissal of
his application for the default is recorded.”

Conclusion
As has been highlighted above the provision of law that actually allows courts to make
conditional orders is inculcated in Order 8A Rule 6 and clarified upon in Rule 7 under the
same order in the CPC. The major conflict in this law it seems arises when parties aggrieved
by a certain order end up being time bound for the appeal of the order or for filing a petition
of enlargement of the time period that the conditions need to be fulfilled within. There are a
number of cases in the country with regards to these issues, however, in this project I have
discussed only the few that the Supreme Court of the country found worthy of discussion or
various High Courts took into consideration.
Coming to the point of the powers of courts under section 148 of the CPC to enlarge the time
period within which a conditional order needs to be fulfilled it is seen that this power of the
courts is barred by time the moment the original time period for completion of the conditions
expires. This is the view that has been endorsed by many courts in the country and seems to
be agreed upon to a large extent. There are certain variations in the applicability of this rule
however, where certain courts have allowed for compassionate consideration even though the
time period for the fulfilment of the order had passed and held that the courts did have the
ability to enlarge the time period. However, the most applicable and sound rationale behind
this consideration being given is the application of section 151 wherein the courts can use
their inherent powers to make such an enlargement by taking such circumstances under
consideration on a case by case basis. There is hence no fixed rule as to the applicability of
this section. The general rule that is followed seems to be that a petition for enlargement of
time period needs to be filed by the petitioner before the expiry of the original time period
after which the order is seen to be settled due to non-fulfilment of the conditions rendering
the court as functus officio and barring it from giving out an order under section 148 of the
CPC.
Coming to the point of the conditions that can be laid down. The conditions that a court can
lay down in a conditional order are clarified in Rule 7 (2) wherein on non-fulfilment the court
can dismiss the case or even pass a judgment in favour of the other party. This is stipulated in
Rule 7. However, the clarity with regards to the conditions being clear so as to be ascertained
easily and the time period being ascertained clearly were laid down in various case laws
across the country. The Balarama Reddi case being one among them. This case also clarified
that compassionate consideration as to the appeal against the conditional order by a trial court
needs to be applied only in cases that merit such a consideration due to the conditions being
too onerous or unreasonable in cases where the courts have not utilised their powers
judiciously or where it can be clearly seen that there arose exigencies that incapacitated the
appellant from actually fulfilling the conditions within the time period prescribed. This clarity
seems to be much needed considering the lack of set principle that can be applied in such
cases. This is something that was endorsed in the case of Ramyya v. Lakshmayya as well and
as such creates a perfect line of logic that needs to be followed by appellate courts when
entertaining appeals against conditional orders of the trial court.
 BIBLIOGRAPHY
Books
C.K. TAKWANI, CIVIL PROCEDURE WITH LIMITATION ACT, 1963, (EBC Publishing
Lucknow 2017)

CASES
Kallyani Amma v. Kunhikrishana.
Hajara Umma v. Mohammed Kunhi Haji.
 S. Mahalinga Bhatta v. Assanare Beary
 Kanduri Sahu v. Nidhi Sahu
 Andhra Rice Mill v. Chanchiah

 Balarama Reddi v. Subbarama Reddi.

 Rmayya v. Lakshmayya.
 Narayan Putappa v. Vaikunt Subaya.
