Unit 1

A Introduction to code of civil procedure,Sec-1 Select definitions Sec- 2

B Jurisdiction of civil courts (Sections 06, 15-21)
C Suit of Civil Nature Section 9,Res Sub-judice Sec -10 and Res Judicata sec- 11, foreign judgment
sections 13 & 14

Introduction to Civil Procedure

The Civil Procedure Code neither creates nor takes away any right. It is intended to regulate the procedures
followed by the civil court. The Civil Procedure Code was passed in 1908 and came into force from 1st January
1909. The Civil Procedure Code neither creates nor takes away any right. It is intended to regulate the
procedures followed by the civil court.
What is a procedural law? What is a substantive law?
Laws can be divided into two groups –
The substantive law determines the rights and liabilities of parties and adjective or procedural law prescribes
the practice, for the enforcement of those rights and liabilities. The efficiency of substantive laws depends
upon the quality of procedural laws. Thus, procedural laws are an accessory to substantial laws. These two are
complementary to each other and they are interdependent.
Procedural laws give life to substantial laws by providing the remedy and by implementing the maxim ubi jus
ibi remedium. Some examples of the procedural law are the Civil Procedure Code, Code of Criminal
Procedure, and Indian Evidence Act. Indian Penal Code, Indian Contract Act, the Transfer of Property Act are
examples of substantive 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.
Illustration: The question of whether an individual is competent to enter into a contract is dealt under
Substantive Law, whereas the question of the time within which one party may sue another is dealt under
Procedural Law.
Substantive part of law establishes the rights, duties and liabilities of individuals. Procedural law establishes
the methods, practices and ways in which a court proceeding takes place. Substantive law consists of written
statutory rules passed by legislature that govern how people behave, they also define our rights and
responsibilities as citizens, on the other hand, Procedural law governs the mechanics of how a legal case flows,
including steps and processes of a case, it adheres to due process.
Example of Substantive Laws-
1. The Indian Contract Act, 1872
2. The Hindu Marriage Act, 1955
3. The Hindu Succession Act, 1956
4. Maternity Benefit Act, 1961
5. The Transfer of Property Act, 1882
6. The Factories Act, 1948
7. Industrial Disputes Act, 1947
8. The Law of Torts

Procedural Laws–
1. Code of Civil Procedure, 1908 (the second part that deals with orders with respect to civil proceedings) 1
2. Code of Criminal Procedure, 1973
3. Law of Evidence, 1872
4. The Limitation Act, 1963

For instance, determining what facts constitute a crime is a matter of substantive law whereas determining
which Court has the jurisdiction to try the matter is a matter of procedural law.
In the case of Commissioner of Wealth Tax, Meerut vs. Sharvan Kumar Swarup &
Sons(1994)122CTR(SC)380
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’.”
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.
Thirumalai Chemicals Ltd. vs. Union of India and others [AIR 2011 SC 1725]
In the case of Thirumalai Chemicals Ltd. vs. Union of India and others[vi], 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.
History of the Code
Before 1859, there was no uniform civil procedure applicable for the entire country. Sir Charles Wood was
responsible, then President of the Board for the affairs of India instructed the Second Law Commission to
prepare a simple code for applicability in all Indian courts. Although it was not applicable in Presidency
Supreme Courts and Presidency Small Cause Courts. This code had several issues and was amended and
reacted in 1877. Another amendment was made in 1892. There existed a conflict of judicial opinion and
interpretation of certain procedures of the Code. In 1908, with the assent of the Governor-General, The Code
of Civil Procedure of 1908 was implemented. The Civil Procedure Code has been amended several times to
meet the needs and requirements which are dynamic and changing from time to time. Between 1909 to 1976,
the Code has been amended for more than 30 times.
Two important amendments were made in 1951 and 1956. Despite there being some defects in it, the Code
was enforced satisfactorily. The Law Commission submitted several reports with the requirement of what
changes should be made while keeping in mind the following necessities –

• The procedure must not be complex and must allow a fair deal to economically weaker sections of the
society.
• A litigant must get a fair trial in accordance with the accepted principles of natural justice.
In 2002, several considerable changes were made to the CPC of which some of the changes are listed
below –
• Number of adjournments to be restricted
• Provision for outside of court settlement to be introduced
• Provision for recording evidence by Court commissioner has been made
• A provision is made for the filing of an appeal in the court where the decree has been passed.
Civil Courts
A civil court handles legal disputes that are not crimes. In the United States, all such legal matters are handled
by judges, attorneys, and law firms that focus on specific areas of non-criminal law, such as patent law or
divorce litigation. In civil cases, there is not a prosecution by the government. Rather, the plaintiff,2a person,
group, business, institution, or a government body, brings a claim of harm against the defendant, another
person or group. Among the many types of civil courts, we include personal injury, medical malpractice, torts,
traffic court, bankruptcy, adoption and family court, business issues, and many others.
Civil Court Process
A civil case begins when the plaintiff believes that the defendant has caused some harm. The plaintiff will file
an official complaint with the appropriate civil court, which describes the incident, identifies who is
responsible, and asks the court for a specific remedy. Notice is given, through a formal summons, to the
defendant. The defendant has the chance to respond to the complaint, with a formal answer, where he or she
explains the incident from his or her perspective.
cases move through a lengthy process of pre-trial activity. Indeed, most cases will never go to trial but are
resolved earlier. In the pre-trial process, information is gathered through a process called discovery. During
discovery, witnesses are interviewed, evidence is collected, and statements are taken. Each side is trying to
gather the best case possible. Then, instead of going to a formal trial, many civil cases will go before an arbiter,
or mediator. An arbiter or mediator is a court official, sometimes a judge or magistrate, who will assist both
sides in coming to a satisfactory resolution of the dispute and assignment of blame outside of a courtroom.
When a case does go to trial, the process resembles a criminal trial. Opening statements are made by the
plaintiff, then by the defendant, each side explaining the case from his or her perspective. The plaintiff calls
witnesses first, with the opportunity for the defense to cross-examine and present appropriate evidence. When
all of the plaintiff's witnesses have been called, the prosecution will rest and give the defense the opportunity
to call witnesses, present evidence, and be cross-examined. When both sides have rested their cases, closing
statements are offered. The judge will offer instructions to the jury (in jury trials) and, after deliberation, the
jury will render a verdict. In bench trials (ones without a jury), the judge will then render a verdict. Finally,
the court will compel one or both sides to comply with the decision of the court.
Civil Court has been categorized on the basis of Jurisdiction:
Subject Matter Jurisdiction: It can be defined as the Authority vested in the court to try and hear cases of
the particular type and pertaining to a particular subject matter.
Territorial Jurisdiction: The court can decide within the geographical limits of a court’s authority and it cannot
exercise authority beyond that territorial and geographical limit.
Pecuniary Jurisdiction: Pecuniary Jurisdiction is related to money, whether a court can try cases and suits of
monetary value/amount of the case or suit in question.
Appellate Jurisdiction: It refers to the authority of a court to rehear or review a case that has already been
decided by a lower court. Appellate jurisdiction is generally vested in higher courts. In India, both the High
Courts and the Supreme Court have appellate jurisdiction to hear matters which are brought in the form of
appeal before them. They can either overrule the judgment of the lower court or uphold it.
What happens in civil court?
In civil court, one person sues (files a case) against another person because of a dispute or problem between
them. A business or agency can also file a case in civil court or be sued in civil court. If someone loses a case
in civil court, that person may be ordered to pay money to the other side or return property, but that person
does not go to jail just for losing the case.
What kinds of cases do civil courts handle?
Civil court cases can be about:
• money and debts
• property
• housing – such as eviction, foreclosure or to fix bad living conditions
• an injury – such as from a car accident, medical malpractice or environmental harm
• marriage and children – such as divorce, child custody, child support, or guardianship
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 • Administrative or government agencies also have hearings to handle civil cases such as: the denial of
public benefits such as welfare, Food Stamps and Medicaid, traffic violations, unemployment hearings
and workers compensation Social Security and SSI benefits, discrimination and civil rights violations.
History of the Code
Before 1859, there was no uniform civil procedure applicable for the entire country. Sir Charles Wood was
responsible, then President of the Board for the affairs of India instructed the Second Law Commission to
prepare a simple code for applicability in all Indian courts. Although it was not applicable in Presidency
Supreme Courts and Presidency Small Cause Courts. This code had several issues and was amended and
reacted in 1877. Another amendment was made in 1892. There existed a conflict of judicial opinion and
interpretation of certain procedures of the Code. In 1908, with the assent of the Governor-General, The Code
of Civil Procedure of 1908 was implemented. The Civil Procedure Code has been amended several times to
meet the needs and requirements which are dynamic and changing from time to time. Between 1909 to 1976,
the Code has been amended for more than 30 times.
Two important amendments were made in 1951 and 1956. Despite there being some defects in it, the Code
was enforced satisfactorily. The Law Commission submitted several reports with the requirement of what
changes should be made while keeping in mind the following necessities –

1.The procedure must not be complex and must allow a fair deal to economically weaker sections of the
society.
2.A litigant must get a fair trial in accordance with the accepted principles of natural justice.
In 2002, several considerable changes were made to the CPC of which some of the changes are listed below
–
In 2002, several considerable changes were made to the CPC of which some of the changes are listed below
–
• Number of adjournments to be restricted
• Provision for outside of court settlement to be introduced
• Provision for recording evidence by Court commissioner has been made
• A provision is made for the filing of an appeal in the court where the decree has been passed.
• Consolidation and Codification

The Indian Penal Code, 1860, Code of Civil Procedure, 1908, Criminal Procedure Code, 1973,
Representation of People Act, 1950, Census Act 1948 and Prevention of Corruption Act, 1988, are among the
laws which will be applicable to Jammu and Kashmir following Union Cabinet's decision to approve
adaptation of central laws under concurrent list to the Union Territory.
The cabinet had approved the order for adaptation of Central Acts in the Union Territory under Section 96 of
the Jammu and Kashmir Reorganisation Act, 2019. As a result, 37 central laws which were not applicable to
the union territory will now be applicable.
DEFINITIONS – Section 2
SECTION 2 (2) DECREE
MEANING &DEFINITION OF DECREE
“Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it,
conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit
and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination
of any question within section 144, but shall not include
(a) any adjudication from which an appeal lies as an appeal from an order, or 4
(b) any order of dismissal for default.
Explanation- A decree is preliminary when further proceedings have to be taken before the suit can be completely
disposed off. It is final when adjudication completely disposes of the suit. It may be partly preliminary and partly
final .
ESSENTIAL ELEMNTS OF DECREE
Following are the element of the decree:-
1. There must be an adjudication.
2. Such adjudication must have been done in a suit.
3. It must have determined the rights of the parties with regards to all or any of the matters in controversy in the
suit.
4. Such determination must be of a conclusive nature, and
5. There must be a formal expression of such adjudication.
6.The adjudication must have been given by a civil court or revenue court .

Formal Expression
There must be a formal expression of adjudication. In simple terms to be a decree, the court must formally express
its decision in the manner provided by law. A mere comment of the judge cannot be a decree. The decree follows
the judgement and must be drawn up separately
Meaning of Adjudication
For a decision of a court to be a decree, there must be an adjudication, i.e., a judicial determination of the matter in
dispute. If there is no judicial determination of any matter in dispute, it is not a decree.
Example of Adjudication
In Madan Naik v. Hansubala Devi: The Supreme Court held that if the matter is not judicially determined then, it is
not a decree.
Deep Chand v. Land Acquisition Officer :The apex court held that the adjudication should be made by the officer of
the Court, in absence of which it is ought not to be recognized as a decree.
What is suit ?
The expression “suit” is not defined in the code.
Case :Hansraj Gupta v. Official Liquidators of The Dehra Dun-Mussoorie Electric Tramway Co. Ltd.: their Lordship of
the Privy Council stated that the word ‘suit’ ordinary means, a civil proceeding instituted by the presentation of a
plaint.
Right of Parties in Controversy
The adjudication must have determined the right of the parties with regards to all or any of the matters in
controversy in the suit.
Conclusive determination
Such determination must be of a conclusive nature. In other words, the determination must be final and conclusive
as regards the court which passes it. Thus, an interlocutory order which does not decide the rights of the parties
finally is not a decree.
The determination of rights in controversy in an adjudication should be conclusive in nature.
As held in the case of Narayan Chandra v. Pratirodh Sahini, the determination should be final and conclusive
regarding the court which passes it. That’s why an interlocutory order which does not finally determine the rights of
parties is not considered as a decree.
EXPLANATION ATTACHED WITH SECTION 2 (2)
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Now come to explanations attached with this section that is:
1. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed off.
2. It is final when adjudication completely disposes of the suit.
3.It may be partly preliminary and partly final .
TYPES OF DECREE

The Code of Civil Procedure recognizes the following three types of decrees.

• Preliminary Decree
• Final decree
• A partly preliminary and partly final decree
Preliminary Decree
A decree is stated as a preliminary decree when the rights of parties regarding all or any of the matter in dispute are
determined in the adjudication but it does not dispose of the suit completely. The preliminary decree is only a prior
stage
A preliminary decree is passed by the courts mainly when the court has to adjudicate upon the rights of the parties
and then, it has put the matter on hold unless the final decree of that suit is passed
As held in the case of Mool Chand v. Director, Consolidation, a preliminary decree is only a stage to work out the
rights of parties until the matter is finally decided by the Court and adjudicated by a final decree.
The Supreme Court in the case of Shankar v. Chandrakant held that the preliminary decree is a decree in which the
rights and liabilities of parties are declared but the actual result is left to be decided in further proceedings.
A preliminary decree can be passed by the court in the following suits as provided by the Code of Civil Procedure,
1908:
ORDER 2O- JUDGMENT AND DECREE
Order 20 Rule 12: Suit for possession and Mesne profit
When there is a suit related to possession of immovable property or for rent or mesne profit then in such cases
preliminary decree can be passed.
Order 20 Rule 13: Administration Suits
When a suit is of the nature of administration suit, then a court is empowered to pass a preliminary decree.
Order 20 Rule 14: Suits of pre-emption
When there is a suit for claiming pre-emption regarding sale or purchase of a particular property then the court can
pass a preliminary decree.
Order 20 Rule 15: Suit filed for dissolution of a partnership
When there is a suit for dissolution of the partnership or for the partnership account to be taken, then the court may
pass a preliminary decree.
Order 20 Rule 16: Suits related to accounts between the principal and agent
In a suit related to the pecuniary transaction between the principal and agent or any other matter, if required, the
court may pass a preliminary decree.
Order 20 Rule 18: Suit for partition and separate possession
When the suit is related to partition or for separate possession of share then the court may pass a preliminary
decree.
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Suits relating to mortgages of immovable property
Order 34 Rule 2: Suits related to the foreclosure of a mortgage
When there is a suit related to the foreclosure of mortgage then under Rule 2 of Order 34, a court is empowered to
pass a preliminary decree.
Order 34 Rule 4: Suits related to the sale of the mortgaged property
In suits related to the sale of the mortgaged property, the court is empowered under Rule 4 of order 34 to pass a
preliminary decree.
Order 34 Rule 7: Suits for the redemption of a mortgage
When a suit is filed before the court regarding the matter of redemption of the mortgaged property, the court is
empowered under Rule 7 of Order 34 to pass a preliminary decree.
Can there be more than one preliminary decree?
There is a conflict of opinion regarding this question that whether there can be more than one preliminary decree in
the same suit or not. Some High Courts are of the view that there can be more than one preliminary decree while
some of the High Courts are against this view.
The Supreme Court in the case of Phoolchand v. Gopal Lal, held that nothing in the Code of Civil Procedure prohibits
passing of more than one preliminary decree if the circumstance requires or if required by the Court. But, it should
be noted that this decision was given by the Court regarding partition suits.
But the above observations are restricted to partition suits only.
Final Decree
The final decree is a decree which disposes of a suit completely and settles all the matter in dispute between the
parties. The final decree does not leave any matter to be decided further.
It is considered as a final decree in the following ways:
• When no appeal is filed against the decree within a prescribed time period.
• Matter in the decree has been decided by the highest court.
• When the decree passed by the court disposes of the suit completely.
More than one final Decree
Shankar Balwant Lokhande (Dead) ... vs Chandrakant Shankar Lokhande & Ors. 1995 AIR 1211, 1995 SCC (3) 413
Kanji Hirjibhai Gondalia vs Jivraj Dharamshi, AIR 1976 Guj 152, (1975)
PARTLY PRELIMINARY & PARTLY FINAL DECREE
EXAMPLE : SUIT FOR POSSESSION OF IMMOVABLE PROPERTY
DEMEED DECREE
Section 2(9)Judgment
Under Section 2(9) of the Code, Judgment is defined as the statement given by the Judge on the grounds of a decree
or an order. It refers to what the judge observes regarding all the issues in matter and the decision on each of the
issues. Hence, every judgment consists of facts, evidence, findings etc. and the conclusion made by the court.
Essential elements of Judgment
A judgment should possess the essentials of a case, reasoning and basic contention on which it is delivered or the
grounds of the decision. It means:
a) A concise statement of the case
b) The points of determination
c) The decision of the court and
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d) The reason for such decision by the court
Duration in which the judgment has to be pronounced
The court has to pronounce the judgment in an open court after completion of final arguments, either on the same
day or some other day, after giving due notice to parties or their counsel.
Prior to the Amendment of 1976, no such time limit was specified between hearing of arguments and delivery of
judgment. However, because of persistent demands and as per the suggestion of joint committee, it was laid that a
judgment should be delivered within 30 days of the conclusion of the proceedings.
In the case of Anil Rai v. State of Bihar in which the judgment was pronounced by the High Court after 2 years of the
final arguments. The Supreme Court had strongly deprecated the delay and set the provisions of duration in which
the judgment had to be pronounced.
Section 2 (10) Judgment Debtor
Section 2 (10) of the Code defines Judgment debtor as any person against whom a decree has been passed or an
order capable of execution has been made.
Section2 (14) Order
The term Order has been defined under Section 2(14) of the Code as the formal expression of any decision of a civil
court which is not a decree.
Essential elements of order are as follows:
• It should be a formal expression of any decision.
• The formal expression should not be a decree.
• The decision to be pronounced by a civil court.
Types of Order
• Final order
• Interlocutory orders
• Appealable Orders
• Non Appealable Orders

Difference between Judgment and Decree

Judgement Decree
Judgment is defined under Section 2(9) of the Civil Decree is defined under Section 2(2) of Civil Procedure
Procedure code, 1908. code, 1908.
Judgement means statement given by a Judge of the Decree is an adjudication conclusively determining the
grounds of decree or order. rights of the parties with regards to all or any of the
matter in the controversy.
It is not necessary that there should be a formal It is necessary that there must be formal expression of
expression of order in the judgement. the decree.
Judgement states preciously the relief granted. Decree must determinate the rights of the parties.
Judgement contains the grounds of decree. Decree follows the judgment.
Judgment may be passed in civil suits as well as in Decree is passed in a civil suit.
criminal cases.
Judgment is not capable of execution. Decree is capable of execution.

Difference between Decree and Order

Decree Order
Section 2(2) of the Code of Civil Procedure defines Section 2(14) of the CPC defines “Order”.
“Decree”.
Decree” means the formal expression of an According to Section 2(14) of the said Code, “order”
adjudication which, so far as regards the Court means the formal expression of any decision of a Civil
expressing it, conclusively determines the rights of the Court which is not a decree.
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 parties with regard to all or any of the matters in
controversy in the suit and may be either preliminary or
final.
Decree can only be passed in a suit which commenced An order may originate from a suit by presentation of a
by presentation of a plaint. plaint or may arise from a proceeding commenced by a
petition or an application.

Decree may be preliminary or final or partly preliminary An order cannot be a preliminary order.
and partly final.

Every decree is appealable Every order is not appealable

Section 2 (11) Legal representative

Legal representative is a person in law who represents the estate of the deceased and includes any person who
intermeddles with the estate of deceased and where a party sues or sued in representative character, the person on
whom the estate devolves on the death of the party so suing or sued.
In other sense, a person who stands in the place of, and represents the interests of another called legal
representative. A person who supervises the legal affairs of another. Like executor or administrator of an estate and
a court appointed guardian of a minor or incompetent person.
The court observed in the case of Custodian of Branches of BANCO National Ultramarino V. Nalini Bai Naique
[1989] 2SCR 810 that the definition contained in Section 2(11) CPC is inclusive in character and its scope is wide, it is
not legally limited to legal heirs only. Instead it stipulates that a person, who may or may not be legal heir competent
to inherit the deceased’s property, can represent the estate of the deceased person. It includes heirs moreover as
persons who represent the estate even without title either as executors or administrators in possession of the
deceased’s estate. All such persons would be lined by the expression of ‘Legal Representative’.
General Explanation of Legal Representative: When a person against whom a legal proceeding is going on dies in the
middle of the proceeding. In that case, his legal representative represent him in the court but only to that extent for
which he is accountable or that portion of the property which has come in his hand.
United India Insurance Co Ltd vs. Shyam Rao Metre and others [M.A.C.M.A. No. 2420 of 2012]
As the definition under section 2(11) of the code reads, it is nowhere described that a legal representative can only
be that person who is dependent on the deceased. Any person related to the deceased can be a legal representative.
Section 2(12) Mesne Profits
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.
Phiraya Lal alias Piara lal vs. Jia Rani [AIR 1973 DEL 186]
The Hon’ble Delhi high court while defining the term mesne profits observed that, “when damages are claimed in
respect of wrongful possession of the immovable property on the basis of the loss caused by the wrongful
possession of the trespasser to the person entitled to the possession of the immovable property; these damages are
called as mesne profits”
Section 2 (17) Public Officer
Public Officer’ means a person falling under any of the following descriptions, namely:-
• Every judge;
• Every member of an All India Services;
• Every commissioned or gazette officer in the military, naval or air forces of the Union while serving under the
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Government;
 • Every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of
law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or
to execute any judicial process, or to administer an oath, or to interpret, or to preserve order, in the Court
and every person specially authorized by a Court of Justice to perform any of such duties;
• Every person who holds any office by virtue of which he is empowered to place or keep any person in
confinement;
• Every officer of the government whose duty it is, as such officer, to prevent offences, to give information of
offences, to bring offenders to justice, or to protect the public health, safety or convenience;
• Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the
Government, or to make any survey, assessment or contract on behalf of the government, or to execute any
revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the
Government, or to make, authenticate or keep any document relating to the pecuniary interests of the
Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the
Government; and
Section 2(5)Foreign Court
A court situated outside India and not established or continued by the authority of the Central Government .
Section 2(6) Foreign Judgment
Section 2(6) of the Code of Civil Procedure, 1908 (CPC) defines a foreign judgement as a judgement of a foreign
court.
Section 5. Application of the code to revenue courts
(1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon
which any special enactment applicable to them is silent, the State Government 1[***] may, by notification in the
Official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code
shall not apply to those Courts, or shall only apply to them with such modifications as the State Government 2[***]
may prescribe.
2) “Revenue Court” in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or
other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include
a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings
of a civil nature.
Section 6. Pecuniary jurisdiction
Save in so far as is otherwise expressly provided, nothing herein contained shall operate to give any Court
jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its
ordinary jurisdiction.
Section 7. Provincial small cause courts

Section 8. Presidency small cause courts

Jurisdiction of Civil Courts

Jurisdiction means and includes any authority conferred by the law upon the court, tribunal or judge to decide or
adjudicate any dispute between the parties or pass judgment or order. Jurisdiction is key question for the court
which goes to the root of the case and decide the fate of matter either at preliminary stage or on merit. If any order
passed without jurisdiction, it becomes nullity and not enforceable by law.
Classification of Jurisdiction
The jurisdiction of civil courts can be divided on the basis of following:
1. Jurisdiction over Subject Matter 10
2. Territorial Jurisdiction
3. Pecuniary Jurisdiction
4. Original & Appellate Jurisdiction
5. Writ Jurisdiction
Section of 9 of C.P.C
Section of 9 of C.P.C deals with the jurisdiction of Civil Court in general it says that the courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
Conditions
A Civil court has jurisdiction to decide a suit if two requirements are fulfilled:
• The suit must be of a civil nature.
• The cognizance of such a suit should not have been expressly or impliedly barred.
I) The suit of civil nature
Meaning :‘Civil Suit’ has not been explained in any act. Any suit that is not criminal in nature can be termed as a suit
of a civil nature. Any suit that pertains to determination and implementation of civil rights may be defined as a civil
suit. In the case of “Kehar Singh Nihal Singh Vs Custodian General,” the court elaborated the concept of Civil
proceeding. It was defined as a grant of private rights to individuals or corporations of society. The objective of the
action is the reward or recovery of private rights. In other words, the civil action may be described as the proceeding
between two parties for implementation or redressal of private rights.
The expression " suit of civil nature" will cover private rights of obligation of a citizen and religious questions are not
covered by that expression. A suit in which the principal question is 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 ( They right to property or to an office) and the
adjudication incidentally involves the determination relating to a caste question or to religious rights and
ceremonies, it does not cease to be suit of a civil nature and the jurisdiction of a civil court is not barred. The court
has jurisdiction to adjudicate upon those questions also in order to decide the principal question which is of a civil
nature.
No court can decline to examine if it is of the information mentioned in Section 9 of the Code of Civil Procedure. The
word civil according to the dictionary suggests, associating to a citizen as an individual. The word nature has been
called the primary qualities of a person or thing. The word civil nature is prevalent than the word civil proceeding.
The doctrine described the theory of the jurisdiction of civil courts under section 9 of the Code of Civil Procedure in
“PMA Metropolitan Vs M.M. Marthoma” the Supreme Court observed that:
• The phrases used in section 9 has a positive and negative intent.
• The original part has a broader sense as it includes all the problems of civil nature; on the other hand, the
latter part has a wider sense as it refuses the topic which is impliedly or expressly barred.
• It designated duty on the court to perform the jurisdiction for the implementation of private rights
• No court has the benefit to refuse the matter which introduces under this section
• It is necessary to take the knowledge of matter because the word “shall” is used, which means that it is a
compulsory section.
In the case of “Shankar Narayanan vs K. Sreedevi,” the Supreme Court held that the ‘Civil Court has primary
jurisdiction in all types of civil matters as per Section 9 of CPC unless the action is expressly or impliedly barred.” This
means that Legislature can defeat the jurisdiction of the civil court by adding a provision or clause in any Act itself.
2.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
11
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.
Explanation 1 & 2 of Section 9
Explanation I- A suit in which the right to property or to an office is contested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.
Explanation ll- For the purposes of this section, it is immaterial whether or not any fees are attached to the office
referred to in Explanation I or whether or not such office is attached to a particular place.
But Explanation I to section 9 shows that where a question relating to religious rites or ceremonies is not the
principal question in the suit and is only a subsidiary question and that the principal question is of a civil nature, viz.,
a right to property or to an office, the court has the power to determine the question relating to religious rites or
ceremonies to enable it to decide the principal question which is of a civil nature.
A suit which is thus otherwise of a civil nature is not altered because questions relating to religious rites or
ceremonies arise incidentally. As said above, a ‘suit in which the principal question relates to religious rites or
ceremonies is not a suit of a civil nature.
Explanation II,-further provides that it is immaterial whether or not any fees are attached to the office referred to in
Explanation I or whether or not such office is attached to a particular place.
In view of section 9 of the Code of Civil Procedure, the enquiry of the court should be confined to the dispute of a
civil nature. Any dispute which is not of a civil nature should be excluded from consideration. The dispute as to right
of worship is one of a civil nature within the meaning of section 9 of the Code and a suit is maintainable for the
vindication or determination of such a right
Stage for filing objections
Objection about absence of jurisdiction of civil court can be raised and entertained at any stage.
Caste question: A caste question is a question which relates to matters affecting the internal autonomy of the caste
and its social relations. Purely caste questions cannot form the subject-matter of a civil suit. The exclusion of a
member of a caste from invitation to caste dinners or ceremonies deprives him only of a social privilege and cannot
be the basis of a suit of a civil nature for dinner is not a legal but social obligation and is, therefore, not recoverable
by means of suit.
A caste question is a question which relates to matters affecting the internal autonomy of the caste and its social
relations. Purely caste questions cannot form the subject-matter of a civil suit. The exclusion of a member of a caste
from invitation to caste dinners or ceremonies deprives him only of a social privilege and cannot be the basis of a
suit of a civil nature for dinner is not a legal but social obligation and is, therefore, not recoverable by means of suit.
But where the right of membership and personal character and status of an individual are affected, the suit is
maintainable as a suit of a civil nature. It falls within the jurisdiction of the civil courts to deal with a caste question
where the character of a member has been unjustly injured.
Thus, expulsion of a member from the case involves the determination of a legal right and a suit will lie to determine
the validity of the expulsion. The right to remain in the community or to exercise the rights and privileges of the
members of the community is a civil one. So will also a suit lie for damages for wrongful expulsion. Similarly, a right
to inspect accounts of caste property held in trust is enforceable by means of a suit.
Right to religious honour: A suit does not lie for mere honour or dignity unconnected with fees, profits or
emoluments. Courts will not decide disputes as to precedence or privilege between purely religious functionaries.
But civil courts have jurisdiction to entertain a suit for honours if they are claimed as attached inseparably to an
office. The right to celebrate the annual festival in a temple is a civil right. Right to honours unconnected with an
office cannot form the subject-matter of a suit.
Right to worship: A suit to establish the right to worship in a temple according to the worshipper’s belief is a suit of a
civil nature. A suit to establish a person’s right to enter a religious place and a suit to restrain the defendant from
entering a place of worship are both entertainable, being suits of a civil nature. It is a civil right of every citizen that
he should be entitled to carry on his worship in any method he likes so long as he does not, by his performances, 12
affect others injuriously.
Where the plaintiffs claimed to be entitled to enter the temple bareheaded and worship, it was held that the civil
court has jurisdiction to entertain it. A right to take part in public worship either in a temple or of a deity while it is
being taken out in procession is a civil right, cognizable by a civil court.
Right to take out procession: The right to take out a procession through the public streets is a civil right, and a suit
will lie to enforce such a right in a civil court. But the carrying of any emblem in a procession along the street is not
the taking out of a religious procession and a suit to enforce a right to carry it is barred under section 9, C.P.C. A
claim to an exclusive right to hold the lighted torch inside the chariot during the festival in a temple does not amount
to an offence which could be enforced in a court within the Explanation to S. 9, C.P.C., as there is no corresponding
compellable duty.
Right to share in offerings
Right to share in temple offerings is a civil right. A suit by a priest to recover fees received by an unauthorized person
is a suit of a civil nature cognizable by a civil court. It is settled law that if a person usurps(assumes) an office to
which another person is entitled and receives the fees of the office, he is bound to account to the rightful owner for
them, and the rightful owner may sue the usurper recover the fees properly payable to him.
This is, however, not the case where payments are merely voluntary, and a suit does not lie to recover voluntary
gratuities that may have been received by the usurper. But a claim to officiate as the priest of the deity in a
particular temple on the occasion of certain festivals for which the remuneration was payable by the temple is an
office of a civil nature within section 9, C.P.C.
Suit in respect of voluntary offerings
A suit in respect of voluntary offerings, i.e., for recovery of emoluments received by the defendants for officiating as
purohits at marriage and other ceremonies conducted by them in the houses of Vyas belonged to the plaintiff is not
maintainable.
Right to religious office
There can be no office without duties attached to it. The right to hold a certain office in a certain place at certain
season of the year confers a legal character. A hereditary priest, however, cannot compel his yajman to accept his
service. Right to office of a hereditary priest to which fees are attached is property and a suit is maintainable.
There has, however, been a conflict of decisions between the various High Courts on the question as to whether a
suit will lie at the instance of the holder of a religious office for disturbing him in the exercise of his office, which may
be discussed as under:
Classes of Religious Office
Religious office may be divided into two classes: (1) where fees are appurtenant (adjunct) as of right and (2) where
no fees are attached but the holder may receive such gratuities as may be paid to him, viz., the office of a pujari. As
regards the religious offices where fees are appurtenant as of right, there is no dispute that a suit will lie against an
intruder for a declaration that the- office is vested in the plaintiff.
But as regards religious offices where no fees are attached, there is a divergence of opinion in the decisions of
different High Courts. According to the Calcutta High Court, it is a suit of a civil nature cognizable by a civil court on
the analogy of the definition of “office” in the Explanation to section 9 of the Code.
According to the Madras High Court, a suit does not lie for a religious office to which no fees are attached, as, in
their opinion, such a religious office where no fees are attached is not an “office” within the meaning of the section.
According to the High Courts of Allahabad and Patna, a right to perform a religious office to which no emoluments
are attached cannot be enforced by a civil suit.
The Bombay High Court is of the view that a suit lies for a religious office which is attached to a place though no fees
are appurtenant to it, e.g., the office of an officiating priest in a temple, but not where the office is personal in
character, e.g., office of a guru.
Guru Simpliciter is not a civil right
The right to officiate as a priest or as a guru simpliciter is not a civil right and no suit lies to enforce the same. But
where it amounts to an office attached to an institution such as a temple, it has been recognized as a civil right. 13 The
fact that there are emoluments of a non-gratuitous character payable out of the funds of the institution is relevant,
though the absence thereof is not decisive.
There may be offices without emoluments at all. The crucial test in determining whether a claim to purohitship or
priesthood of a temple is a claim to an office or not is whether there are duties attached to purohitship which are
enforceable by law, custom or usage, whether by deprivation or other temporal sanction.
Right to officiate as purohit and guru
A claim to officiate as the priest of the deity in a particular temple on the occasion of certain festivals for which the
remuneration was payable by the temple is an office of a civil nature within section 9, C.P.C. But a claim to be
declared the guru of the archakas of a temple is not a claim to an office of a civil nature.
Examples of suits which are of civil nature are as follows:
• Suits for rent.
• Suits for dissolution of marriage/ restitution of conjugal rights.
• Suits for the right of franchise.
• Suits relating to right to Property.
• Suits relating to worship /to share in offerings.
• Suits relating to taking out of religious procession.
• Suits for Specific relief.
• Suits for hereditary office.
Examples of suits are not of civil nature are as follows
• Suit on expulsion from caste.
• Suits involving religious rites and ceremonies.
• The suit involves voluntary payment in the offering.
• Suits for recovery of voluntary payments or offerings.
• Suits for continuation of mere dignity or honour

The Court should be expressly or impliedly barred: Expressly barred refers to when the legislation restricts the
scope of jurisdiction of the civil courts from restricting to try a particular class of suit. The power of the legislation
should be implemented in such a manner that there is no breach of a provision of the Constitution. In Shankar
Narayan vs K Sree devi, (1998) the Supreme Court, in this case, mentioned that civil courts have primary jurisdiction
on all civil matters unless it is expressly or impliedly barred.
Illustration: The parliament passed an Act to form a National Green Tribunal that expressly bars the sessions Court,
High Courts to deal with suits involving environment violation.
The burden of proof
The burden of proof is upon the party which claims that the court doesn’t have the power to try the case. In Abdul vs
Bhavani (1996), the Supreme Court held that every presumption should be made in favor of the civil court, exclusion
of Jurisdiction shall strictly be construed. Where a party raises such contention he needs to prove various status,
relevant provisions, and object and purpose of the enactment.
General principles associated with Section 9 of the Civil Procedure Code, 1908
• A decree passed by the court without having the Jurisdiction would be null and void.
• The presumption of jurisdiction should be made in favor of the civil court.
14
• The burden of proof is upon the party which asserts the exclusion of jurisdiction.
 • For deciding the jurisdiction substance of the matter is important and not its form.
• Jurisdiction of a suit depends upon the claims made by the plaintiff in the plaint and not upon the written
statement.
• Consent cannot take away or confer the jurisdiction of the suit in a particular court.
Judicial observation on the jurisdiction of the civil court
Dhulabhai vs State of MP (1968)
In this case, Justice Hindyatullah said various principles on the exclusion of jurisdiction by various civil courts.
1. When a state provides the finality of orders, the civil court jurisdiction is prohibited from typing the case.
Such provisions don’t eliminate those cases which have not complied with the fundamental laws of the
Judicial method.
2. When there is an express bar of jurisdiction of the court, an examination of the bar of a jurisdiction scheme
of a particular act to find a sufficient remedy, but this is not crucial for maintaining civil court jurisdiction.
3. It examines terms of specific acts as an ultra virus and the decision of the tribunal cannot go for a revision or
reference by the High Court.
4. When the terms are stated to be illegal or constitutionality of any term is challenged. Then a writ of
certiorari may be introduced on the ground of refund but it is not necessary to compensate for the suit.
5. Prohibitions of the jurisdiction cannot take place until these provisions are inferred by the court.
Premier automobiles v. K.D Wadke
• The Supreme Court laid down the following principles as relevant to the jurisdiction of civil courts in
association with industrial disputes:
• If a conflict is not an industrial conflict, nor does it correlate to the enforcement of any other right under the
industrial dispute act, the remedy lies only in civil court.
• If a conflict is an industrial conflict emerging out of a right or liability under the general or public law, the
jurisdiction of the court is an alternative left to the person involved to decide his remedy for the support
which is sufficient to be given in a particular remedy.
• If an industrial dispute relates to the implementation of the right or a duty organized under the act, then the
only remedy available is to get adjudication under the act.
Rajasthan SRTC v. Krishna Kant
The Supreme court summarized the following principles applicable to industrial disputes:
• When the conflict originates from the common law of contract, a suit registered in civil court is not
maintainable even though such conflict establish industrial dispute within the definition of Section 2(k) of
Industrial Disputes Act, 1947.
• When a dispute involves the recognition or enforcement of rights created by an enactment which is called
sister enactments and do not provide a forum for the resolution of such dispute, the only remedy is to
approach the forum created, provided they constitute industrial dispute within Section 2(k) of Industrial
Disputes Act, 1947. It is not right to say that the assistance provided by Industrial dispute act are not equally
useful for the ground that entrance to forum depends upon a recommendation being made by the relevant
government.
• The power given is the power to suggest and not the power to decide, though it may be that the government
is allowed to examine.
• It is consistent with the policy of law aforesaid i.e command to parliament and state legislature to declare a
provision allowing a workman to address the labour court- i.e., without the need of a recommendation by
the government in case of industrial dispute included by Section 2-A of the Industrial Disputes Act.
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SECTION -10 STAY OF SUITS(RES SUB JUDICE)
Section 10 - Stay of suit.— No Court shall proceed with the trial of any suit in which the matter in issue is also directly
and substantially in issue in a previously instituted suit between the same parties, or between parties under whom
they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in
India have jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued
by the Central Government and having like jurisdiction, or before the Supreme Court.
Explanation. — The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded
on the same cause of action.
Section 10 of CPC states that no court will initiate the trial of any suit if the issues are directly or substantially related
to the previously instituted suit between the same parties or parties litigating on behalf of them under the same title
and the matter is pending before the court having the competent jurisdiction in the territory of India or any court
beyond the limits of India established by central governments having the same jurisdiction or before supreme court.
Section. If parallel suits come before the competent court, section 10 gives the power to put a stay on the proceedings
in another court. Section 10 prohibits the trial of parallel litigation where the same cause of action arises between the
same parties on the same subject matter. This section is inserted in the CPC with the purpose that the defendant
should not suffer twice for the same offense.
For example : There was a contract between A & B in which B need to supply raw materials to the A. B did not supply
goods to A. There was the breach of a contractual obligation by the B. A files suits against B in the competent court.
Meanwhile, the decision of this court was pending and A filed another suit against B in another court. Competent court
by virtue of the power given in Section 10 put stay on proceedings of another court because the subject matter of the
case was same and the decision was pending.
What is the objective behind inserting section 10?
1. To prevent parallel litigation in two different courts between the same parties on the same subject matter.
2. To prevent wastage of the court’s resources and time.
3. To avoid two contradictory Decisions on the same subject matter.
4. To reduce the burden on the courts.
5. To protect the rights of the other party.
6. To avoid unnecessary delay.
What is the scope of Section 10?
The scope of section 10 is clear, unambiguous, definite & Mandatory. The word ‘shall’ in the provision makes it
mandatory. Section 10 does not require that matter in the issues of two suits should be the same but it requires that
matter should be directly or substantially be the same. Stay of proceedings is necessary for the court to avoid
multiplicity of the proceedings and harassments to the parties. Section 10 authorizes only stay on proceedings but not
a dismissal of the proceedings.. In execution proceedings, the order passed by the court in contravene to Section 10 is
not a nullity.
What are the essentials of Section 10?
1. There should be two suits.
2. The suits must be between the same parties or their successors.
3. The matter in the issue in the later suit must be directly and substantially the same as in the previous suits.
4. Both the suits should be pending before the court of law.
5. The parties must be litigating under the same title in both the suits.
➢ If the above essentials are fulfilled, the court can stay the proceedings under Section 10 of CPC.

16
Same Parties – For imposing stay under Section 10, the identity of the parties is enough. Parties in two suits need not
be the same. To apply Section 10 it is enough that previously instituted suit is between parties under whom they or
any of them claim litigating under the same title.
Matter in the issue must be same – For the application of section 10, it is enough to establish that substance of the
matter in controversy in two suits are same. The Identity of reliefs is not necessary for the applicability of this section.
The suit must be pending – Section 10 gives the power to put stay on proceedings only if previously suit is pending. It
is a duty and responsibility on the defendant to make the court aware about pending of former suit. But if it is pending
in foreign court, then Section is not applied.
• Title must be the same – To apply section 10, the parties must be litigating under the same title under both
suits.
• The court should be competent – Section 10 of CPC is only applied when the previous suit is pending before
the competent court.
When court cannot apply the doctrine of Res sub judice?
• In the case of Alimmllah vs. Sheikh, the court held that the rule of sub judice is not applied when issues in
both suits are distinct and different.
• In the case of Abdul vs. Asrafun, the court held that rule is not applied when there are some common issues
and some different.
• When the parties are the same but there are different issues between them.
• It is not necessary for the applicability of Section 10 that all the issues in the prior instituted suit should also
be issued in the later suit.
What is the inherent power of the Court to put stay?
In the situations when Section 10 is not applicable, the court can put stay on the proceedings under the power given
in Section 151 of the Civil Procedure Code. Section 151 gives inherent power to the court to make such order which is
necessary for securing ends of justice and to prevent abuse of the process of the court. Section 151 gives discretionary
power to secure ends of justice when there is no application of Section 10.
It is concluded that the rule of sub judice can be found in Section 10 of the CPC. Section 10 bars the two parallel
litigation between the same parties on the same cause of action. The basic reasoning behind this provision is to prevent
wastage of courts resource, protect the right of the defendant, reduce the burden on courts and avoid two
contradictory decision. This provision was inserted in CPC to meet the end of the justice and prevent abuse of the
court. There are lots of cases pending before the Indian Judiciary system. This doctrine helps the courts to prohibit
repetitive suits on the same cause of the action. Thus Section 10 or the principle of Res Sub Judice makes our Judiciary
system more efficient.
Shri Bhola Prasad v Srimala Jagmati ,1954,ALJ.696
The fact that the subject matter of the previous suit is overlapping with the subsequent suit will not attract the section
. Where the earlier suit was for recovery for rent for a certain period and the subsequent suit is for recovery of rent
for subsequent years and for ejectment the matter in issue in the two suits would not be deemed to be the same and
section 10 would not apply.
Indian Bank v Maharashtra State Cooperative Marketing Fed. Ltd.
The rule laid down in section 10 applies to trial of a suit and not the institution thereof. It also does not preclude a
court from passing interim orders, such as, grant of injunction or stay , appointment of receiver etc. The concept of
trial as contained in section 10 is applicable only to a regular / ordinary suit and not to a summary suit filed under
order 37.

Section 11- RES JUDICATA

17
 • Res judicata literally means “a thing which has been decided”. Res means “ thing” and judicata means “
already decided”. The doctrine operate as a bar to the trial of a subsequent suit on the same cause of
action between the same parties.
• In other words things once decided by competent courts should be taken as conclusive truths until they
are reversed by any higher court.
The doctrine of Res Judicata is based on three Roman maxims
• “Nemo debet lis vaxari pro eadem causa” which means that no man should be vexed (annoyed) twice for
the same cause;
• “Interest republicae ut sit finis litium” meaning thereby that it is in the interest of the state that there
should be an end to a litigation; and
• “Re judicata pro veritate occipitur” which bears the meaning as a judicial decision must be accepted as
correct.
INTRODUCTION
• The doctrine of Res Judicata has been defined in Section 11 of the Civil Procedure Code. The doctrine of the
Res Judicata means the matter is already judged. It means that no court will have the power to try any fresh
suit or issues which has been already settled in the former suit between the same parties. Also, the court will
not try the suits and issue between those parties under whom the same parties are litigating under the same
title and matter are already been judged and decided by the competent court.
• When the court finds any suits or issues which has been already decided by the court and there is no appeal
pending before in any court, the court has the power to dispose of the case by granting a decree of Res
Judicata. This doctrine is based on the premises that if the matter is already decided by the competent court
then no one has rights to reopen it with the subsequent suit. It also enacts the conclusiveness of the
judgments as to the points decided, in every subsequent suit between the same parties.
• The doctrine of Res Judicata is applied by the court where issues directly and substantially involved between
the same parties in the former and present suit, are same. For e.g., It may be that in former suit only part of
the property was involved whereas in present or subsequent suit whole property of the parties is involved
Than court will grant a decree of Res Judicata.
DEFINITION OF RES JUDICATA SECTION 11
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.
EXPLANTAIONS OF SECTION 11
• Explanation I.-- The expression former suit shall denote a suit which has been decided prior to a suit in
question whether or not it was instituted prior thereto.
• Explanation II.-- For the purposes of this section, the competence of a Court shall be determined irrespective
of any provisions as to a right of appeal from the decision of such Court.
• Explanation III.--The matter above referred to must in the former suit have been alleged by one party and
either denied or admitted, expressly or impliedly, by the other.
• Explanation IV.-- Any matter which might and ought to have been made ground of defence or attack in such
former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
• Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree, shall for the
purposes of this section, be deemed to have been refused.
• Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private right claimed in
common for themselves and others, all persons interested in such right shall, for the purposes of this
18
section, be deemed to claim under the persons so litigating .
 • Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution of a decree and
references in this section to any suit, issue or former suit shall be construed as references, respectively, to a
proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for
the execution of that decree.
• Explanation VIII.-- An issue heard and finally decided by a Court of limited jurisdiction, competent to decide
such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited
jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been
subsequently raised.
CASES
• Res Judicata is a rule of law
In Daryao v. State of U.P. the Court observed that the binding character of judgments pronounced by Courts of
competent jurisdiction is itself an essential part of the rule of law, and the rule of law obviously is the basis of the
administration of justice on which the Constitution lays so much emphasis. The Court thus held that the rule of res
judicata applies also to a petition filed under Article 32 of the Constitution and if a petition filed by a petitioner in the
High Court under Article 226 of the Constitution is dismissed on merits, such decision would operate as res judicata
so as to bar a similar petition in the Supreme Court under Article 32 of the Constitution.
Example- A sues B for the rent due , B denies , here the claim for rent is the matter in respect of which relief is
claimed Band thus , a matter directly and substantially in issue. But when A sues B for rent and B claims abatement
of rent on the ground that the area is greater than that shown in the lease , the finding as to the excess area is not
res judicata for this was not the matter directly and substantially in issue but only ancillary to it.
Extent and applicability
The doctrine of res judicata is a fundamental concept based on public policy and private interest. It is applicable to
civil suits, execution proceedings, arbitration proceedings, taxation matters, industrial adjudication, writ petitions,
administrative orders, interim orders, criminal proceedings etc.
Essentials of Res Judicata under Section 11 CPC
• 1. The matter must be directly & substantially in issue in two suits .
• 2. The prior suit must have been between the same parties or persons claiming under them .
• 3. Such parties must have litigating under the same title in the former suit .
• 4. The court which determine the earlier suit must be competent to try the latter suit ( subject to the
provision of explanation 7)
• 5. The question directly & substantially in issue in the subsequent suit must have been heard & finally
decided in the earlier suit .( subject to proviso of explanation 5)
1. Directly& Substantially in Issue- The matter directly and substantially in issue in the later suit must be the
“same matter” which was directly & substantially in issue in the former suit.
To constitute a matter as res judicata under Section 11, certain conditions need to be fulfilled, which were laid down
in Sheodan Singh v. Daryao Kunwar:
1.The matter directly and substantially in issue in the subsequent suit or issue must be the same matter which was
directly and substantially in issue either actually (Explanation III) or constructively (Explanation IV) in the former suit
(Explanation I). (Explanation VII is to be read with this condition).
2.The former suit must have been a suit between the same parties or between parties under whom they or any of
them claim. (Explanation VI is to be read with this condition).
3. Such parties must have been litigating under the same title in the former suit.
4. The Court which decided the former suit must be a Court competent to try the subsequent suit or the suit in which
such issue is subsequently raised. (Explanations II and VIII are to be read with this condition).
19
5. The matter directly and substantially in issue in the subsequent suit must have been heard and finally decided by
the Court in the former suit. (Explanation V is to be read with this condition).
In Vithal Yeshwant v. Shikandarkhan, the Supreme Court observed that if the final decision in any matter at issue
between the parties is based by a court on its decisions on more than one point- each of which by itself will be
sufficient for the ultimate decision- the decision on each of these points operates as res judicata between the
parties.
2. Between the Same parties
The second condition of res judicata is that the former suit must have been a suit between the same parties or
between the parties under whom they or any of them claim. This condition recognizes the general principle of law
that judgments and decrees bind the parties and privies. Therefore, when the parties in the subsequent suit are
different from the former suit, there is no res judicata.
For example, A sues B for rent. B contends that C and not A is the landlord. A fails to prove his title and the suit is
dismissed. A then sues B and C for a declaration of his title to the property. The suit is not barred as the parties in
both the suits are not the same.
Provisions under the Civil Procedure Code on foreign courts and foreign judgements
• Section 2 (5)-A foreign Court is defined as a court situate outside India and not established or continued by
the authority of the Central Government.
• Section 2(6)- of the Code of Civil Procedure, 1908 (CPC) defines a foreign judgement as a judgement of a
foreign court.
Section 13 – When foreign judgement not conclusive
• A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the
same parties or between parties under whom they or any of them claim litigating under the same title
except—
• (a) where it has not been pronounced by a Court of competent jurisdiction;
• (b) where it has not been given on the merits of the case;
• (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law
or a refusal to recognize the law of [India] in cases in which such law is applicable;
• (d) where the proceedings in which the judgment was obtained are opposed to natural justice;
• (e) where it has been obtained by fraud;
• (f) where it sustains a claim founded on a breach of any law in force in [India].
Section 13 of the CPC clearly says that a foreign judgment shall be conclusive/ binding as to any matter which has
been directly adjudicated upon between the parties except under certain circumstances which have been specified
in this section. In the case of Brijal Ramjidas v. Govindram Gordhandas Seksaria , the Supreme Court held that
Section 13 speaks not only of judgement but any matter thereby directly adjudicated upon.
In D. Viswanathan v. Rukun Mulk Sayed Abdul , the Supreme Court held that while considering whether a judgement
of a foreign court is conclusive, the courts in India will not require to go into the merits of the claim and it shall be
conclusive as to any matter directly adjudicated between such parties subject to exceptions enumerated under
Section 13, clause (a) to (f).
Foreign Judgements When Not Binding
Section 13 of the Code holds a foreign judgement to be conclusive except under the six circumstances which have
been specified in this section.
• 1.Foreign Judgement has not been pronounced by a Court of competent jurisdiction.
• 2. Foreign Judgement has not been given on the merits of the case
20
• 3. Foreign Judgement against International or Indian Law
 • 4. Foreign Judgement opposed to natural justice
• 5. Where it has been obtained by fraud
• 6. Foreign Judgement founded on breach of Indian Law
SECTION-14:Presumption as to Foreign Judgement
Section 14 of the Code declares that the Court shall presume upon the production of any document purporting to be
a certified copy of a foreign judgement that such judgement was pronounced by a court of competent jurisdiction
unless contrary is proved. Such presumption may be displaced by proving want of jurisdiction. In Narsimha Rao v.
Venkata Laxmi , the Supreme Court held that if for admissibility of such copy, further conditions are required to be
fulfilled, it can be admitted in evidence only if that condition is satisfied.
Jurisdiction of Civil Courts
Jurisdiction means and includes any authority conferred by the law upon the court, tribunal or judge to decide or
adjudicate any dispute between the parties or pass judgment or order. Jurisdiction is key question for the court
which goes to the root of the case and decide the fate of matter either at preliminary stage or on merit. If any
order passed without jurisdiction, it becomes nullity and not enforceable by law.
Classification of Jurisdiction
The jurisdiction of civil courts can be divided on the basis of following:
1. Jurisdiction over Subject Matter
2. Territorial Jurisdiction
3. Pecuniary Jurisdiction
4. Original & Appellate Jurisdiction
5. Writ Jurisdiction
In CPC
• Section 6- Pecuniary jurisdiction.
• Section 9 - Courts to try all civil suits unless barred.
• Section 15 - Court in which suits to be instituted.
• Section 16 -Suits to be instituted where subject-matter situate.
• Section 17- Suits for immovable property situate within jurisdiction of different Courts.
• Section 18- Place of institution of suit where local limits of jurisdiction of Courts are uncertain.
• Section 19 -Suits for compensation for wrongs to person or movables.
• Section 20 - Other suits to be instituted where defendants reside or cause of action arises.
• Section 21 - Objections to jurisdiction.
• Section 21A - Bar on suit to set aside decree on objection as to place of suing
Section 6 -Pecuniary Jurisdiction
Pecuniary jurisdiction.—Save in so far as is otherwise expressly provided, nothing herein contained shall operate to
give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits
(if any) of its ordinary jurisdiction.
Section 15 :Court in which suit to be institute
Section 15 of the civil procedure court provides that every suit shall be instituted in the court of the lowest grade
competent to try it.
21
for example the pecuniary jurisdiction a courts is as follows:
Suits amounting up to Rs.3,00,000/- lie before the Junior Civil Judge's Courts. Suits over 3,00,000/- and but not
exceeding Rs. 15,00,000/- lie before the Senior Civil Judge's Courts and exceeding Rs. 15,00,000/- lie before District
Courts. It is an important to note that High Court has no Pecuniary Jurisdiction and only appeal lies before it.
Section 16 to 20 of C.P.C deals with Territorial jurisdiction of a court.
Territorial Jurisdiction: Section 16 to 20 of C.P.C deals with Territorial jurisdiction of a court. Whereas Section 16 to
18 relates to immovable property and Section 19 deals with suit for compensation for wrongs to persons are
movable property. Section 20 of C.P.C is residuary provision and cover all cases not falling under Section 16 to 19.
Territory of a court is decided after taking in to consideration several factors
A) In case of immovable property- If the suit is with regard to recovery, rent, partition , sale, redemption,
determination of right of immovable property it shall be instituted in the court with in the local limits of whose
jurisdiction the property is situated.
B) Immovable property situated within the jurisdiction of different courts. In such case the suit may be instituted in
any court with in the local limits of whose jurisdiction any portion of the property is situated.
C. In case of dispute between 2 or more persons with respect to movable property, business are any other wrong
done – In the place where wrong are damage has been caused to a person are any damaged has been caused to
movable property then the suit may be instituted either in the place where wrong are damaged caused or in the
place where defendant (The person who caused the loss) resides.
D.) where there is a dispute in business, agreement or any kind of civil disputes except matrimonial matter than the
suit may be instituted either in a place where the defendant resides or carries on business or in a place where the
cause of action has arisen, i.e where the dispute or wrong took place.
e) In case of matrimonial dispute where a dispute arised between husband and wife with regard to their matrimonial
life than the case may be filed in the place where marriage was solemnized or in the place where opposite party is
residing or in the place where husband and wife last resided together or in the place where persons filing the case is
residing.
Section -16
Suits to be instituted where subject-matter situate.—Subject to the pecuniary or other limitations prescribed by any
law, suits—
• (a) for the recovery of immovable property with or without rent or profits,
• (b) for the partition of immovable property
• (c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
• (d) or the determination of any other right to or interest in immovable property,
• (e) for compensation for wrong to immovable property,
• (f) for the recovery of movable property actually under distraint or attachment.
shall be instituted in the Court within the local limits of whose jurisdiction the property is situate:
Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on
behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be
instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within
the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or
personally works for gain.
Explanation.—In this section “property” means property situate in India.
Section -17
Section 17 -Suits for immovable property situate within jurisdiction of different Courts.—Where a suit is to

22
 • obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of
different Courts. the suit may be instituted in any Court within the local limits of whose jurisdiction any
portion of the property is situate :
• Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such
Court
Section 18
Place of Institution of suit where local limits of jurisdiction of Courts are uncertain.—
(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any
immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged
uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to
that property, and its decree in the suit shall have the same effect as if the property were situate within the local
limits of its jurisdiction:
Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit
to exercise jurisdiction.
(2) Where a statement has not been recorded under sub-section (1), and an objection is taken before an Appellate
or Revisional Court that a decree or order in a suit relating to such property was made by a Court not having
jurisdiction where the property is situate, the Appellate or Revisional Court shall not allow the objection unless in its
opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the court
having jurisdiction with respect thereto and there has been a consequent failure of justice.
Section -19
Suits for compensation for wrongs to person or movables. -Where a suit is for compensation for wrong done to the
person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the
defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of
another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.
(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.
(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A either in Calcutta or in
Delhi.
Section -20
• Other suits to be instituted where defendants reside or cause of action arises.—Subject to the limitations
aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction—
• (a) the defendant, or each of the defendants where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for
gain; or
• (b) any of the defendants, where there are more than one, at the time of the commencement of the suit,
actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such
case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or
personally works for gain, as aforesaid, acquiesce in such institution; or
• (c) The cause of action, wholly or in part, arises.
1. A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and
requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may
sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B carries on
business.
2. A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at Banaras, B and C make a joint
promissory note payable on demand, and deliver it to A. A may sue B and C at Banaras, where the cause of action
arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if
the non-resident defendant objects, the suit cannot proceed without the leave of the Court. 23
Section- 21
Objections to jurisdiction
1. No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such
objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where
issues are settled at or before such settlement, and unless there has been a consequent failure of justice.
2. No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall
be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance
at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement,
and unless there has been a consequent failure of justice.
3. No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction
shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court
at the earliest possible opportunity, and unless there has been a consequent failure of justice.

Unit 2
A Parties to civil suit & institution of civil suit Section 26 Order I & IV
B Plaint : essentials, return and rejection of plaint, (Order VII) amendment of pleadings( OVI R17)
C Summons to the defendant Sec- 27 & OV

O 1,4,5,6,7
Order 1 and 4 with Section 26
Order 5 Section 27
Order 6 Rule 17
Order 7
Order I -Parties to Suits
RULES
1. Who may be joined as plaintiffs.
2. Power of Court to order separate trials.
3. Who may be joined as defendants.
3A. Power to order separate trials where joinder of defendants may embarrass or delay trial.
4. Court may give judgment for or against one or more of joint parties.
5. Defendant need not be interested in all the relief claimed.
6. Joinder of parties liable on same contract.

7. When plaintiff in doubt from whom redress is to be sought.

8. One person may sue or defend on behalf of all in same interest.

8A. Power of Court to permit a person or body of persons to present opinion or to take part in the proceedings.

9. Misjoinder and non-joinder.

10. Suit in name of wrong plaintiff

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10A. Power of Court to request any pleader to address it.
11. Conduct of suit.

12. Appearance of one of several plaintiffs or defendants for others.

13. Objections as to nonjoinder or misjoinder.

RULE -8 REPRESENTATIVE SUIT

Order I Rule 8 of the Code of Civil Procedure 1908 deals with representative suit. A representative suit is a suit
that is filed by one or more persons on behalf of themselves and others having same interest in the suit. The
general rule is that all persons interested in a suit ought to be joined as parties to it. Rule 8 forms an exception to
this general rule. The rule enacted is for convenience based on reason and good policy as it saves from expense
and trouble which would otherwise have to be incurred in such cases.
OBJECTIVE OF RULE 8
Kodia Gounder v. Velandi Gounder AIR 1955
The object of the rule is to afford convenience in suits where there is community interest among large number of
persons so that a few should be allowed to represent. In other words, the object for which this provision is made is
really to facilitate the decision of question in which a large body of persons are interested without recourse to
ordinary procedure otherwise there will be inseparable practical difficulty in the institution of suits, where each
individual has to maintain an action by a separate suit.
Conditions for a representative suit
•The parties are numerous
•Same interest or Community of interest
•Necessary permission of the Court has been obtained
•Notice to all the persons interested in the suit
Numerous Parties
Masjid Shahid Ganj v. SGP Committee AIR 1938
The Court has said that a representative suit on behalf of inhabitants of a village with reference to the village
property or on behalf of the members of sect, caste or community is maintainable under this rule. It is also noted
that the Rule does not debar any member of a community from maintaining a suit in his own right in spite of the fact
that the act complained of injuries to other members of the community as well.
SAME INTEREST
For example- A sues 100 persons who have in pursuance of a conspiracy trespassed on his land or have wrongfully
confined him, and A asks for declaratory relief, the court should have the power to permit him to sue, say, 3 of the
opponents as representatives of all the hundred, provided there is community of interest among them, which can be
said to exist where there is concerted action or a common object though the cause of action against each trespasser
is separate. The interest need not be proprietary neither joint nor concurrent.
Representative Suit and Res judicata
Sub-rule 6 provides that a decree is binding on all persons on whose behalf or for whose benefit the suit is instituted.
Therefore, Section 11 of the Code is applicable to representative suits also. It has been held in several decisions that,
it being so, the procedure prescribed by rule 8 must be strictly followed by the Courts.
Rule 9- NON-JOINDER AND MISJOINDER OF PARTIES TO A SUIT
The concept of “joinder of parties” includes non-joinder and misjoinder of parties to a suit and means the inclusion
or exclusion of particular persons in a suit. Such joinder of parties is not a matter of initial jurisdiction of the court
but a question of judicial discretion which has to be exercised in view of all the facts and circumstances of a case.
The powers granted to a court regarding joining of parties are very wide and extensive under Rule 10(2) of Order
1[4] and the following two considerations must be borne in mind while exercising these powers: 25
 (i) The plaintiff is dominus litis i.e. he is the best judge of his own interest. Therefore, it is upon the plaintiff
to choose his opponent from whom relief is claimed. Ordinarily, the court should not compel the plaintiff to
fight against a person whom he does not desire to fight and from whom he claims no relief; and

(ii) If the court is satisfied that presence of a particular person is necessary to effectively and completely
adjudicate all the disputes between the parties, irrespective of the wishes of the plaintiff, the court may
exercise the power and join a person as a party to the suit.

Doctrine of necessary and proper parties in essence

The doctrine of necessary and proper parties is eminent when determining this question of joinder or non-joinder of
parties. There is a vital distinction between a necessary and a proper party to a suit. A necessary party is one whose
presence is a sine qua non (a thing that is absolutely necessary) to the constitution of the suit and without whom, no
effective order can be passed with respect to the questions arising before the court
Two tests have been laid down for determining the question whether a particular party is a necessary party to a
proceeding:

(I) there must be a right to some relief against such party in respect of the matter involved in the proceeding
in question; and

(ii) it should not be possible to pass an effective decree in absence of such a party.

For instance, in a suit for specific performance of a contract for sale, the necessary parties would be the parties to
the contract or if they are dead, their legal representatives as also a person who had purchased contracted property
from the vendor. However, a person who claims independently or adversely to the claim of the vendor would not
constitute a necessary party as it would change the nature of the suit. The proper course of action for such person
would be to institute a separate suit for declaration of title.
The Supreme Court in Gurmit Singh Bhatia v. Kiran Kant Robinson and it was observed that: “A third-party or a
stranger cannot be added in a suit for specific performance, merely in order to find out who is in possession of the
contracted property or to avoid multiplicity of the suits. A third-party or a stranger to a contract cannot be added so
as to convert a suit of one character into a suit of different character.”
For instance, in a suit for specific performance of contract for sale between Party A (i.e., vendor) and Party B (i.e.,
purchaser) who are the parties to such contract would be necessary parties. While a person C, who claims a title
adverse to the title of the Vendor (i.e., Party A) would not constitute a necessary party as this would alter the nature
of present suit and result in conversion of a suit for specific performance of contract for sale into a suit for
declaration of title, thereby enlarging the scope of suit. The effective remedy for Person C in such case would be to
institute a separate suit and file a fresh claim against Party A.
Praveen Bhatia v. M. Ghosh, 1989
In a suit filed against a doctor owing to his medical negligence, the doctor was held to be a necessary party since
relief was claimed from him. However, the insurance company from whom the insurance had been obtained was
held as neither a necessary nor a proper party, since no relief had been claimed from the said company.
U.P. Awas Evam Vikas Parishad v. Gyan Devi, (1995) 2 SCC 326.
In a land acquisition proceeding, the local authority is a necessary party in the proceedings before the Reference
Court and is entitled to be impleaded as a party in those proceedings wherein it can defend the determination of the
amount of compensation by the Collector and oppose enhancement of the said amount and also adduce evidence in
that regard.
ORDER 2 –FRAME OF SUIT
• 1. Frame of suit
• 2.Suit to include the whole claim
• 2(2)Relinquishment of part claim
• 2(3) Omission to sue for one of several reliefs 26
 • 3.Joinder of cause of action
• 4. Only certain claims to be joined for recovery of immovable property
• 5.Claims by or against executor , administrator or heir
• 6. Power of court to order separate trials
• 7. Objections as to misjoinder.
ORDER III-RECOGNIZED AGENTS AND PLEADERS
1.Appearances, etc., may be in person, by recognized agent or by pleader.
2.Recognised agents.
3.Service of process on recognized agent.
4.Appointment of pleader.
5.Service of process on pleader.
6.Agent to accept service. Appointment to be in writing and to be filed in Court.
Section 26 and Order IV provides for institution of suits
• Section 26 lays down that every suit shall be instituted by the presentation of a plaint induplicate or in any
other manner prescribed by the Code of Civil Procedure, to the court or such officer appointed in this behalf
and the facts stated therein must be supported by an affidavit. This section must be read with Order IV, VI &
VII of the first schedule.
Section 27 - "Summons to defendants"
Section 27 of CPC stipulates that where a suit has been duly instituted by filing a plaint, the first duty of the court is
to issue summons calling on the defendant to appear and answer the claim and such summons may be served in a
manner prescribed in the rules mentioned in Order V of the first schedule and on such day not beyond 30 days from
the date of the institution of the suit.
Section 28: Service of summons where defendant resides in another state
Section 28 of CPC provides for a situation when the summons is to be sent to a defendant who is residing in a
different state and also provides for the requirement to such process thereon. It simply says that the summons to be
served in an another state must be sent for service through the court of that state and it will so be served according
to the rules in force in the state in which it is sent to. The court to which it is sent must serve it as it is issued by that
court and return it to the court issuing it along with the proceedings therein.
Section 29: Service of foreign summonses
Section 29 provides for the situation when any of the following courts:
1. Civil or Revenue court to which Civil Procedure Code does not apply.
2. Civil or Revenue court established by the authority of Central Government outside India.
3. Civil or Revenue court outside India to which this section would apply.
has issued certain summons and is intended to be served in the territory to which Civil Procedure Code applies. It
provides that it may be sent to the courts to which Civil Procedure Code applies and may be severed by them as if it
was issued by such courts.
Section 30: Power to order discovery and the like
Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion
or on the application of any party,-

27
 • (a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering
of interrogatories, the admission of documents and facts, and the discovery, inspection, production,
impounding and return of documents or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or
such other objects as aforesaid;
(c) order any fact to be proved by affidavit.
Section 31: Summons to witness
This provision provides that if a summon is to be sent not to a defendant to appear and answer the plaint but to any
person including defendant for the purpose of giving evidence or to produce documents or other material objects,
then such summons must be sent as according to Sections 27, 28, 29 and if the person does not comply with the
direction provided in the summons, Section 32 shall apply.
Section 32: Penalty for default
The court may compel the attendance of any person to whom a summons has been issued under section and for
that purpose may-
1. Issue a warrant for his arrest
2. Attach and sell his property
3. Impose a fine upon him not exceeding 5000rs.
4. Order him to furnish security for his appearance and in default commit him to the civil prison.

28
 UNIT -2
TOPIC -3 ISSUE AND SERVICE OF SUMMONS: ORDER V
Introduction:
After the plaint is filed, the summon is issued by the court to appear in the court to defend it. The intimation
which is sent to the other party (defendant) is called summons. The provision related to summons are given
in Section 27-32 and Order V of CPC.
Summons is an authoritative call from the court to attend the court at a specified place and ata specified
time. The summons as contemplated in Rule 1 is for the attendance of the defendant. It says that once a
plaint is admitted the court is required to send the notice of such admission to the defendant and then for the
purpose of his appearance and to answer (reply) the allegations made against him in the plaint. The summons
are served on the defendant.
This appearance and answer (in the form of a Written Statement) must be made within 30 days from the
date of service of summons (being duly received) and may be extended to further such period as may be
granted by the court not beyond 90 days from such service. Therefore, further 60 days’ extension may be
granted, if the case requires.
This does not mean that no further extension may be granted after the period of 90 days is over, but it must
be made only in exceptional circumstances, if the defendant satisfies the court of an exceptional cause for
not appearing and that he was not negligent.
It is not necessary to issue summons when the defendant is in the court at the time of presentation of the
plaint and admits the claim.
Generally, a summons must contain:

i. Reason (Purpose) for sending it,

ii. Signature of the Judge and seal of the court,
iii. Specified date of appearance of the defendant,
iv. Copy of plaint,
v. Appropriate directions.
This order must be read with Section 27-32 of CPC, 1908.

1
Section 27: Summons to Defendants

Section 27 of CPC stipulates that where a suit has been duly instituted by filing a plaint, the
first duty of the court is to issue summons calling on the defendant to appear and answer the
claim and such summons may be served in a manner prescribed in the rules mentioned in Order
V of the first schedule and on such day not beyond 30 days from the date of the institution of
the suit.

Section 28: Service of summons where defendant resides in another state

Section 28 of CPC provides for a situation when the summons is to be sent to a defendant who
is residing in a different state and also provides for the requirement to such process thereon. It
simply says that the summons to be served in an another state must be sent for service through
the court of that state and it will so be served according to the rules in forcein the state in
which it is sent to. The court to which it is sent must serve it as it is issued by that court and
return it to the court issuing it along with the proceedings therein.

Section 29: Service of foreign summonses

Section 29 provides for the situation when any of the following courts:

1. Civil or Revenue court to which Civil Procedure Code does not apply.
2. Civil or Revenue court established by the authority of Central Government outside
India.
3. Civil or Revenue court outside India to which this section would apply.
has issued certain summons and is intended to be served in the territory to which Civil
Procedure Code applies. It provides that it may be sent to the courts to which Civil
Procedure Code applies and may be severed by them as if it was issued by such courts.

Section 30: Power to order discovery and the like.

Subject to such conditions and limitations as may be prescribed, the Court may, at any time,
either of its own motion or on the application of any party,-
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery
and answering of interrogatories, the admission of documents and facts, and the discovery,
inspection, production, impounding and return of documents or other material objects
producible as evidence;

2
(b) issue summonses to persons whose attendance is required either to give evidence or to
produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.

Section 31: Summons to witness

This provision provides that if a summon is to be sent not to a defendant to appear and answer
the plaint but to any person including defendant for the purpose of giving evidence or to
produce documents or other material objects, then such summons must be sent as according
to Sections 27, 28, 29 and if the person does not comply with the direction provided in the
summons, Section 32 shall apply.

Section 32: Penalty for default-

If the summons is sent under Section 30 by the court and the person to whom it is sent does not
comply with the orders, the court may in consequence compel the attendance of the person to
whom a summons has been issued under Section 30.

Order V Rule 2 talks about that when summon is to be sent then it is necessary to annexed a
copy of plaint with it.
Order V Rule 3: Court may order defendant or plaintiff to appear in person:
The Court shall order the defendant and the plaintiff to appear on the same day as specified,
in person, if it is so required.

Order V Rule 4: No party to be ordered to appear in person unless resident within local
limits
Q. When can a party be asked to appear personally?
No party will be ordered to appear personally unless
1. He resides within local limits of courts’ jurisdiction.
2. Where he resides within 50 miles from the court-house, or
3. Beyond such jurisdiction but within 200 miles from the court and where 5/6th distance
can be covered by Railways or steamers or other public conveyance.
There are certain provisions where there is an exemption from personal appearance, such as

1. Section 132, in case of certain women like Pardanashin lady,

2. Section 133, in case of other person like President, Vice-President, etc.

3
Order V Rule 5: Summons to be either to settle issues or for final disposal

The summons may be issued for settlement of issues or for final disposal of the suit and the
court shall at the time of issuing the summons specify for what purpose summons are being
issued and it must contain a direction accordingly.
The Court of Small Causes shall issue summons for final disposal only.

Order V Rule 6: Fixing day for appearance of defendant

The following factors should be looked into while fixing the date for appearance-

1. The current business of the court,

2. The place of residence of the defendant,
3. Time necessary for service of summons,
4. Sufficient time to enable defendant to prepare his defence.

Order V Rule 7: Summons to order defendant to produce documents relied on by him

It shall be ordered to the defendant in the summons to produce all the document or copies
thereof specified in Order VIII Rule 1 A to produce on which he intends to rely in his support.
Order V Rule 8: On issue of summons for final disposal, defendant to be directed to
produce his witnesses
In the summons for final disposal of the suit the defendant shall be directed to produce all the
witness upon whose evidence he relies for his defence at the day fixed for appearance.

Mode of service of summons

1. Service of court [Rule 9].
2. Service by plaintiff (Dasti Summons) [Rule 9A]
3. Personal or Direct Service [Rule 10-16, 18]
4. Substituted Service [Rule 17, 19-20]- (i) without the order of the court (ii) with the
order of the court.
5. Service by Post.

Order V Rule 9: Delivery of summons by Court- This rule provides for the manner in which
the summons must be served, that if the defendant or his agent is a resident within the
jurisdiction of the court, such summons shall be served either by officer of the court known as
process server or bailiff or by such courier services as are approved by the court.

4
Furthermore Sub-Rule 3 provides for the manner in which the summons may be served.

The service of summons may be made by delivering or transmitting a copy to the defendant
or his duly authorised agent by:
(a) Registered Post acknowledgement due, or

(b) Speed Post or courier service approved by the High Court or the District Court, or

(c) Any other means of transmission like fax message or electronic mail service, etc.

The service of summons under this sub-rule 3 shall be made on the expenses of the plaintiff.

If the defendant is residing out of the jurisdiction of the court sending summons then such
summons shall be served according to sub-rule 3 except by registered post acknowledgement
due and provisions of rule 21 does not apply.
Where the summons if returned back to the court with the endorsement that the defendant or
his agent refused to accept the summons when tendered or transmitted to him, the court shall
declare that the summons had been duly served on the defendant.
In the following cases the court may declare deemed service of summons-

(a) The refusal or non-acceptance by the defendant,

(b) Where the summons was properly addressed, prepared and duly sent by registered post or
acknowledgement due and having been lost or mislaid and wasn’t received by the court within
30 days from the date of issue of summons.
The High Court or the District Judge shall prepare the list of courier services.

Rule 9A: Summons given to the plaintiff for service

The types of summons provided under Rule 9A are issued by the court in addition to the manner
provided under Rule 9. In this kind of summons, the plaintiff’s is allowed to served the
summons personally to the defendant. Such summons must be sealed and signed.
The plaintiff must take the acknowledgement from the defendant and shall endorse a return by
stating the time and manner of service of original summons.
Such summons may be served by the court by a re-issue and in a normal manner.
These summon are known as Dasti Summons.
Personal or Direct Service [Rule 10-16, 18]

5
Rule 10 to 16 and 18 deals with the personal or direct service of summons upon thedefendant.
This is an ordinary mode of service of summons.
Rule 10: Mode of Service: Service of the summons shall be made by delivering or tendering
a copy thereof signed by the judge or such officer as he appoints in this behalf, and sealed with
the seal of the court.
Rule 11: Service on several defendants- Where there are two or more defendants, service shall
be made on each of them.
Rule 12: Service to be on defendant in person when practicable, or on his agent- The summons
must be served to the defendant in person or to his authorised agent.
Rule 13: Service on agent by whom defendant carries on business- When the suit relates to any
business or work and is against a person not resident within the jurisdiction of the court issuing
summons, such summons may be served upon any manager or agent who personally carries on
such business or work and is within the local limits of the court.
Rule 14: Service on agent in charge in suits for immovable property- In a suit to obtain a relief
with respect to an immovable property or for suit for compensation over such property, it would
be sufficient that the summons is served upon the agent who is in charge of the property.
Rule 15: Where service may be on an adult member of defendant’s family- In cases where the
summons cannot be served due to absence of defendant for a reasonable time and the agent
also is not available to receive summons, then such service may be made to an adult member
residing with the defendant. It can be served both on male or female but only on adult member
of the family. In such cases a servant is not considered the family member of the defendant.
Also when adult female members of defendants refused to receive suit summons, a conclusion
can be drawn that summons are served on defendants in view of Order V Rule 15, CPC.
Rule 16: Person served to sign acknowledgement- The serving officer shall require the
signature of the person accepting the summons to an acknowledgement of the service endorsed
on the original summons.
Rule 18: Endorsement of time and manner of service- The serving officer in all cases where
the summons has been served under Rule 16, shall endorse or annex on the original a return

6
stating the time and manner of service and name or address of the person identifying the person
or witnessing the delivery.
Substituted Service [Rule 17, 19-20]

Substituted service means the service of summons by a mode which is substituted for the
ordinary mode of service of summons.
For ordering substituted service as per Order 5 Rule 20, CPC it must be shown that the
respondent/defendant is keeping out of the way for the purpose of avoiding service or that for
any other reason, the summons cannot be served in the ordinary way1.
Publication of notice in Newspaper:- When service of notice is intended by an advertisement
in a newspaper, the Newspaper shall be a daily Newspaper circulating in the locality in which
the respondent/defendant is last known to have actually and voluntarily resided or carried on
business or personally worked for gain2.
There are two modes of substituted service of summons:

(a) Service without the order of the court

(b) Service with the order of the court

Service without the order of the court- Order V Rule 17 lays down following circumstance
when substituted service can be made on the defendant without the order of the court:
(i) Refusal of acknowledgement- Where the defendant or his agent refuses to sign the
acknowledgement.
(ii) Absence of defendant- Where the serving officer, after due and reasonable diligence,
cannot find the defendant who is absent from his residence at the time of service of summons
and cannot be found within a reasonable time and there is no authorized agent nor any other
person on whom such service can be made. When one of the above two circumstance exist, the
service of summons can be made by affixing a copy on the outer door or some other
conspicuous part of the house in which the defendant ordinarily resides or carries on business
or personally works for gain.

1
See. Maganti Krishna Durga Vs. Maganti Anil Kumar – 2015 (5) ALT 346 (D.B.)
2
Id.

7
Procedure after such service: After affixing such copy of summons as stated above, the serving
officer shall then return the original to the court issuing summons with a report endorsed
thereon stating
(a) The fact about affixing the copy;

(b) The circumstances under which he did so;

(c) The name and address of the person, if any, by whom the house was identified and in whose
presence the copy was affixed.
Order V Rule 19 further provides that if the court is satisfied, either on affidavit or
examination on oath of serving officer, that the summon is duly served, it may either declare
the summons has been duly served or may make such inquiry as it thinks fit. If provisions of
Rule 19 are not complied with, service of summons cannot be said to be in accordance with
law3.
In other words, Rule 19 provides that where a summons is returned under r. 17, the court shall,
if the return under that rule has not been verified by the affidavit of the serving officer, and
may, if it has been so verified, examine the serving officer on oath, or cause him to be so
examined by another Court, touching his proceedings, and may make such further enquiry in
the matter as it thinks fit; and shall either declare that the summons has been duly served or
order such service as it thinks fit4.
Service with the order of the court- Order V Rule 20 provides the mode of service of
summons with the order of the court. If the court is satisfied that there is reason to believe that
defendant avoids service or for any other reasons, the summons cannot be served in the ordinary
way, in such case, the service may be affected in the following manner:
(i) By affixing a copy of summons in some conspicuous place in the court house, and in the
house in which the defendant is known to have last resided, carried on business or personally
worked for gain, or
(ii) In such other manner as it thinks fit.

The court may order service of summon by advertisement in a daily newspaper circulating in
the locality in which the defendant is last known to have resided or carried on business or
personally worked for gain [Rule 20 A]

3
State of J&K v. H.W. Mohammed, AIR 1972 SC 2538
4
See. Dr. K.C. Verma vs Asstt. Cit, (2004) 89 TTJ Del 129.
8
Effect of substituted service of summons- Order V Rule 20(2) provides that the substituted
service is as effective as personal service, and such defendant shall be deemed to be duly served
in accordance with law. The court shall fix a time for the appearance of defendant and give him
reasonable opportunity to appear before court.
Such summons affixed is as effective as the service in the manner provided under the Rule.

In Satish Corporation Company v. Allahabad Bank5, it was observed that while passing order
under Order V Rule 20 the court is required to record its satisfaction that there were reasons to
believe that the defendant was keeping out of the way for the purpose of avoiding service or in
the alternative it is required to record its satisfaction that for any other reasons the summons
could not be served in the ordinary way.
In Sunil Poddar v. Union Bank of India6, the Court held that where summons was served by
newspaper publication, then the plea that the person sought to be served does not read such
newspaper is not open to the party.
Substitute service is not due service:- As per Explanation to Article 123 of Limitation Act,
1963, substitute service under Rule 20 of Order 5, CPC shall not be deemed to be a due service.
It was held in Maganti Krishna Durga Vs. Maganti Anil Kumar – 2015 (5) ALT 346 (D.B.).
Publication made by plaintiff in a news paper other than the one ordered by Court:- In Basant
Singh and another v. Roman Catholic Mission7, it was held that its publication made by
plaintiff in a news paper other than the one ordered by Court. However, both the said papers
are local dailies having wide circulation in the area. Such a publication in the circumstances
of the case is a mere irregularity in service of summons. It would not invalidate the effect of
substituted service.
Non-Service of summons:- It was held in Maganti Krishna Durga’s case that second proviso
to Order 9 Rule 13, CPC makes it obligatory on the appellate court not to interfere with ex parte
decree unless it meets the statutory requirements, showing non-service of summons or where
there is sufficient cause for the wife not appearing before the Court.

5
AIR 1999 MP 21
6
AIR 2008 SC 1006,
7
2003 (1) ALT(SC) 1

9
Service of summons in Rent Control cases:- In Bansilal Yadav v. Suraj Chand Bhagatand
others8, it was observed that under rule 22 (4) of rent control rules, making affixture of
summons on the last known place of abode or business without making efforts to tender service
in person or to serve the same on adult member of their family or to send the same by registered
post is not legal.(2) Order of injunction by Rent Controller.
Permission to defend suit:- In summary suits for recovery of money under Order 37, CPC,
period of ten days to file application by defendant seeking permission to defend the suit be
computed from the date of service of summons for judgment and not from the date of service
of suit summons9.
Order V is applicable to Execution proceedings:- It is not in dispute that the procedure
contemplated for service of notice under Order 5 is made applicable for service of notice in the
execution proceedings also10.
Service by Post

Where the summons was properly addressed, prepaid and duly sent by registered post and
acknowledgement is lost or not received by the court within 30 days from the date of issue of
summons, the court shall declare that the summons has been duly served.
Thus, the court may adopt any of these modes accordingly for serving summons on the
defendant so that he is ensured fair trial and there is no delay in the progress of the suit.
Irregularity in service of summons

It has been held that procedural irregularity in the service of notice would not be bad in law
and consequential action would be sustained unless the defendant is able to show that
substantial prejudice was caused due to procedural lapse in making service to him [Prabhun
Ram Pukhan v. State of Assam (2015) 2 SCC (Civ) 331].
For example, A obtained by false representation an order for substituted service by giving court
to understand that B had been avoiding service. In such a case, substituted service shall be
deemed to have effect of personal service upon the defendant and will be valid unless he shows
any prejudice caused to him due to such service.
OTHER PROVISION RELATED TO SUMMONS:

8
2007 (2) ALT 491
9
See. Panduga Veera Reddy v. Bandaru Damodar Reddy and another – 2005 (3) ALT 417. L.
10
Pappasani Narayana Reddy v. Mandem Reddappa Reddy, 2004 (5) ALT 226.

10
Rule 21: Service of summons where defendant resides within jurisdiction of another
court- The service of summons outside the jurisdiction of the court issuing, may be made in
any of the aforesaid manner provided under the rule, to the court other than the High Court in
whose jurisdiction defendant resides.
Rule 22: Service within presidency-town of summons issued by courts outside- Where a
summons issued by any court established beyond the limits of town of Calcutta, Madras and
Bombay is to be served within any such limits, it shall be sent to the Court of Small Causes
within whose jurisdiction it is to be served.
Rule 23: Duty of Court to which summons is sent- The Court to which a summons is sent
under rule 21 and rule 22 shall, upon receipt thereof, proceed as if it had been issued by such
court and shall return the summons to the court of issue, together with the record (if any) of
its proceedings with regard thereto.
Rule 24: Service on defendant in prison- The service of summons to a person confined in
prison shall be served to the officer in charge of prison for service on the defendant either by
post or by courier service or by any other mode of communication.
Rule 25: Service where defendant resides out of India and has no agent- if the suit is
instituted against a defendant residing outside India and he has no agent in India, then the
summon shall be sent to the defendant at the place where he is residing i.e. in any foreign
country.
The summons may be sent either by post or by courier service or by fax or by electronic mail
service or any other means provided by the High Court.
A defendant residing in Bangladesh and Pakistan may be served with the summons through the
court of that country except the High Court.
Rule 26: Service in foreign country through Political Agent or Court-

Where the defendant is residing in a foreign country;

The summons may be sent through the Ministry of Foreign Affairs of that Foreign Country to
such political agent or court, appointed or established by Central Government or to any court
situated in that country and not established or continued by Central Government, for being
served upon the defendant by post or otherwise.

11
When such political agent or court returns the summons with an endorsement to the effect that
summons has been served, such endorsement shall be deemed to be the evidence of the service.
Rule 26A- Summonses to be sent to officers of foreign countries-

The summons to be served on defendants residing or carrying on business or working for gain
in the foreign country shall be sent to an officer of the foreign country specified by Central
Government through Ministry of Foreign Affairs of India.
The endorsement returned by that officer shall be deemed to be the evidence of the service.

Rule 27: Service on civil public officer or on servant of Railway Company or local
authority-
The service of summons on the defendant who is a public servant (except mentioned in rule
28) or the servant of a railway company or local authority may be served to the head of the
office in which he is employed, together with a copy of it to be retained by the defendant.
Rule 28: Service on soldiers, sailor 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.
Rule 29: Duty of person to whom summons is delivered or sent for service-

(1) Where a summons is delivered or sent to any person for service under rule 24, rule 27 or
rule 28, such person shall be bound to serve it if possible, and to return it under his signature,
with the written acknowledgement of the defendant, and such signature shall be deemed to be
evidence of service.
(2) Where from any cause service is impossible, the summons shall be returned to the court
with a full statement of such cause and of the steps taken to procure service, and such statement
shall be deemed to be evidence of non-service.
Rule 30: Substitution of letter for summons- This rule provides situation when serving of
summons does not seem to be proper, and in such situation the court sends a letter to the
defendant, who is entitled to this form of calling due to the rank of such defendant requiring
such mark of consideration or respect. However, this does not mean that all the particulars
required in summons will not be mentioned in such letter as it will be treated in all respects,
as a summons.
This letter may be sent by post or by special messenger.

12
 GENERAL PRINCIPLES OF PLEADING
Order VI of the Code deals with the Pleadings. According to Rule 1, Pleading means plaint or
written statement. According to P. C. Mogha, pleading are statements in writing draw up and
filed by each party to a case stating what his contention will be at trial and giving all such
details as his opponents needs to know for his defence.

Plaint
Pleading
Written Statement

This rule declares that the pleading are the plaint filed by the plaintiff and the written
statement filed by the defendant and thus the stage of pleading would mean the institution of
plaint till the submission of a written statement.

Therefore, pleading are statement of parties to communicate their contention to be

adjudicated in trial. This process is the primary process in the Civil Procedure.

Object of Pleading: The object of pleading was explained by the Supreme Court in Ganesh
Trading Co. v. Moji Ram, AIR 1978 SC 484. Pleading has following objects:

a) To give each side, intimation of the case of the other so that they are not taken by
surprise.
b) To enable the court to determine the issues between the parties.
c) To diminish expenses and delay in conduct of suits.

In Thorp v. Holdsworth1, the court held that the whole object of pleading is to narrow down
parties to definite issues.

Fundamental rule of Pleading

Order VI Rule 2 lays down fundamental principle of pleading. This rule provides for the
general caution a litigant has to exercise while drafting his pleading and is thus known as the
golden rule of pleading. It provides that:

1. Every pleading must contain only material facts on which the party pleading relies i.e.
unnecessary facts having no bearing upon the cause of action must not be stated (also

1
(1876) LR 3 Ch D 637
1
 known as Facta Probanda). It is for the court to apply the law to the facts pleaded.
Thus, existence of any custom or usage is question of fact and it must be pleaded but a
plea about maintainability of suit raises question of law and need not be pleaded.
However, a mixed question of fact and law should be specifically pleaded 2. Rule 13
further provides that presumption raised in one’s favour is not required to be pleaded
as these are matter of evidences.
2. The pleading must not contain any evidence of the facts, by which they would be
proved, which is required only after settlement of issues (also known as Facta
Probantia). The expression ‘material facts’ is not defined in the court. In the case of
Udhav Singh v. Madhav Rao Scindia3, the Supreme Court defined the expression as
‘all the primary facts which must be proved at the trial by a party to establish the
existence of the cause of action or his defence’. In Virendra Nath v. Satpal Singh4,
the Supreme Court held that material facts are those facts upon which a party relies
for his claim or defence. Plaintiff’s cause of action and defendant’s defence depends
on material facts. These facts are to be distinguished from a particular which only
provides the details of the case. Their purpose is to amplify, refine and embellish
material facts. Rule 4 provides the cases in which particulars are to be given. It
provides that all necessary particulars like misrepresentation, fraud, and breach of
trust, wilful default or undue influence must be stated in the pleadings. The pleading
should contain facta probanda and not facta probantia [Virendra Nath v. Satpal
Singh, AIR 2007 SC 581].
3. The pleading of the parties must not state any law through which such facts must be
appraised by the court, but a mixed question of law and fact may be stated in the
pleadings5.
4. That all such material facts must be stated in concise form i.e. in brief and to the
point, further it is provided that, every pleading shall be divided into paragraphs,
numbers consecutively and every allegations should be contained in separate
paragraphs. Dates, sums and numbers should be expressed in figures as well as in
words.

2
Ram Prasad v. State of M.P. AIR 1970 SC 1818.
3
AIR 1976 SC 744
4
AIR 2007 SC 581
5
Supra Note at 2.
2
Form of Pleading [Rule 3]- The Code also provides the form of pleading in Appendix A of
the Code.

Construction of pleading- It is a settled law that the pleadings should be construed liberally.
It is the duty of the court to interpret pleading liberally having regard to the substance of the
matter. In Madan Gopal v. Mamraj Maniram6 the Supreme Court held that courts should not
scrutinize pleadings in such manner that it results in defeating of genuine claim on trivial
grounds.

Rule 6: Condition Precedent- Any condition precedent, the performance or occurrence of

which is intended to be contested, shall be distinctly specified in his pleading by the plaintiff
or defendant, as the case may be; and, subject thereto, an averment of the performance or
occurrence of all conditions precedent necessary for the case of the plaintiff or defendant
shall be implied in his pleading.

Rule 7: Departure- No subsequent pleading shall contain any new ground of claim or
contain any inconsistent fact to the previous pleading except by way of amendment under
Rule 17.

Rule 8: Denial of Contract- It provides that, a bare denial of a contract alleged by the
opposite party shall be construed. Denial of facts of contract and the legality or sufficiency in
law of such a contract must be specifically denied.

Rule 9: Effect of document to be stated- Wherever the contents of any document are
material, it shall be sufficient in any pleading to state the effect thereof as briefly as possible,
without setting out the whole or any part thereof, unless the precise words of the document or
any part thereof are material.

Rule 10: Malice, Knowledge, etc- Wherever it is material to allege malice, fraudulent
intention, knowledge or other condition of the mind of any person, it shall be sufficient to
allege the same as a fact without setting out the circumstances from which the same is to be
inferred.

Rule 11: Notice- Wherever it is material to allege notice to any person of any fact, matter or
thing, it shall be sufficient to allege such notice as a fact, unless the form or the precise terms
of such notice, or the circumstances from which such notice is to be inferred are material.

6
(1977) 1 SCC 669
3
Rule 12: Implied contract or relation- Wherever any contract or any relation between any
persons is to be implied from a series of letters or conversations or otherwise from a number
of circumstances it shall be sufficient to allege such contract or relation as a fact, and to refer
generally to such letter, conversations or circumstances without setting them out in detail.
And if in such case the person so pleading desires to rely in the alternative upon more
contracts or relations than one as to be implied from such circumstances, he may state the
same in the alternative.

Rule 13: Presumption of law- Facts which the law presumes in favour of a party or as to
whom the burden of proof lies on the other side need not be pleaded unless first denied. For
e.g. when plaintiff sues only on the bill of exchange he doesn’t need to plead consideration
unless it is denied.

Rule 14: Pleading to be signed- This rule talks about the requirement of signature so as to
take the responsibility of the facts being stated ny the litigant in his pleading. Pleading shall
be signed by the party (litigant) or by a duly authorized agent, who is authorized by the party
to sign as such.
The pleading shall also be signed by the pleader of the party, if engaged.

Rule 14A: Address for service of notice- This rule, in simple language, requires for the
mention of the addresses of the parties in the pleadings and other formalities and actions that
need to be taken by the parties during the entire suit.
It provides that, the address be called a registered address and its change must be duly
given notice of, as the summons or any other process will be affected upon such addressee.
Any defect in such addresses may lead to stay of the suit or striking out of defence, as
the case may be, after which only an application to set-aside such stay or striking may be
given.

Rule 15: Verification of pleadings- Every pleading when writing and signed as required,
must be verified at the foot of the plaint or written statement i.e. after the signature of the
party, and if there are more than one party then it must be verified by any one of the parties.
The pleading may also be verified by any person to be acquainted with the facts stated in the
pleadings. Acquaintance here would mean having the knowledge of facts. Such person
verifying must be proved to the satisfaction of the court that he is so acquainted.
Furthermore, the rules provide for, the manner in which the verification shall be written i.e.,

4
 i. It shall specify by paragraph and numbers of the pleadings, of which the party knew
and of which it has reason to believe on the information received, and
ii. It must also state the date and the place on which the signature is placed for
verification.
Another important requirement of the pleadings is that it must be duly supported by an
affidavit of the person verifying.

Alternative and Inconsistent Pleadings & Striking out Pleadings

Meaning of alternative and inconsistent pleadings- The expression ‘alternative’ means the
one or the other of two things. A party to litigation may include in his pleadings two or more
set of facts and claim relief in the alternative. Inconsistent, on the other hand, means mutually
repugnant, contradictory or irreconcilable. Acceptance or establishment of one necessarily
implies abrogation or abandonment of the other.

In Re Morgan, (1887) LR 35 Ch D 492 (CA), the court observed that the plaintiffs may rely
upon several different reliefs in the alternative. Similarly the defendants can also raise several
defences in the alternative. For instance, a suit for possession is maintainable on the basis of
title or in the alternative, on the basis of lease. In Firm Sriniwas Ram Kumar v. Mahabir
Prasad7, the Supreme Court held that object of allowing alternative pleadings is to obviate the
necessity of another set of litigations and to decide all the controversy in one litigation.

As regards inconsistent pleadings, the Code does not prohibit a party from making two or
more inconsistent set of allegations 8. A plaintiff may rely on several different rights
alternatively, although they may be inconsistent. Defendants may also raise by his statement
of defence, without the leave of court, as many distinct and separate inconsistent defences as
he may think proper. Inconsistent pleas are permissible but they are seen with suspicion by
the court. Party who tries to establish both the inconsistent pleas places himself in peril of
adducing mutually contradictory and destructive evidence. It must be remembered that the
party cannot be allowed to approbate and reprobate at the same time.

When such pleading may be refused: The Court may not allow such pleadings in following
cases:

(i) where such pleading delay or embarrass fair trial [Rule 16].

7
AIR 1951 SC 177
8
Id.
5
(ii) such a plea is not maintainable by law.

(iii) where a party has taken up a definite stand once and the court has given a decision on
that footing.

Rule 16: Striking out pleadings- The power provided under this rule may be exercised by
the court either suo motu or on the application of any of the parties. The striking out here
means that the paragraphs will not read as the part of the pleadings and thus no evidence shall
be given to its proof. This striking out may be ordered at any stage of the proceedings.

Q. When compulsory amendment will be allowed?

Order VI Rule 16: The court will allow striking out or amending certain matters in any
pleading which are as follows:

i. Which may be unnecessary, scandalous, frivolous or vexatious, or

ii. Which may tend to prejudice, embarrass or delay the fair trial or otherwise an abuse
of the process of the court.

This is also called a compulsory amendment. However, it is an exception to normal practice

that a court cannot direct parties as to how they should prepare their pleadings. The power to
strike out pleadings is extraordinary in nature and must be exercised by the court sparingly
and with extreme care, caution and circumspection9.

AMENDMENT OF PLEADINGS

Order VI Rule 17 specifically provides for amendments of pleadings by the parties.

According to this rule, the court may allow any party to a suit to amend his pleading as may
be just for the purpose of determining the real question in dispute between the parties. This
power is discretionary which must be exercised in a sound manner.

As per Mulla, there are five different situations which provides occasion for amendments
under CPC.

1. Section 152: Amendment of Judgement, Decree and Orders

2. Section 153: General Power to amend at any time to determine real issue.
3. Order I R. 10(2): Striking out or adding parties.

9
Sathi Vijay Kumar v. Tota Singh, (2006) 13 SCC 353.
6
 4. Order VI R. 16: Compulsory amendment i.e. amending your opponent’s pleading.
5. Order VI Rule 17: Amending your own pleading.

Basic objects behind allowing of amendment

The court should get at and tried the merits of the case that come before them and all
amendments that may be necessary for determining the real question and controversies
should be allowed provided that it can be done without causing injustice to the other side and
the relief claimed is within the period of limitation. The court exists for doing complete
justice between the parties and not for punishing them. Thus, they have power to grant
amendments of pleadings in the larger interest of justice but this power given to the court is
entirely discretionary.

Before allowing an amendment a court should consider the following four points:

1. Interest of justice
2. Determination of real question in controversy between the parties.
3. Necessary to prevent multiplicity of suits.
4. Party exercise due diligence

Above consideration has to be taken into account while deciding the question of amendment
of pleading.

The court has held time and again that any pleading can be amended and the court will see
whether the other party can be compensated by cost or not. If answer is yes, it can be
allowed. In other words, as per Order VI Rule 17 either party can alter his pleading with the
permission of the court and as per the rule court will be little restrictive in allowing the
amendment after the commencement of trial unless the court is of the opinion that in spite of
due diligence this court not have been raised before commencement of trial and whether the
parties acted with due diligence or not depends on facts and circumstance of each case.

The court explaining due diligence in Chandrakanta Bansal v. Rajinder Singh Anand,
(2008) 5 SCC 117, the court said due diligence means a reasonable diligence which a prudent
man would exercise in the conduct of his own affairs. It is clear that mere action can’t be
accepted unless the party takes prompt steps and file a petition after the commencement of
the trial.

7
In other words during intervening period of framing of issues and date fixed for evidence,
trial does not commence and in such a situation Proviso to Order VI Rule 17 shall not apply.

Now again question arose as such to what is the stage of allowing of such amendment- Rule
17 provides that amendment of pleading can be allowed at any stage of the proceeding. As in
Bakshi Singh v. Prithvi Raj Singh, AIR 1995 SC, the court said that amendment of pleading
can be granted at any stage of the proceedings either before or after trial or even at the
appellate stage.

After this decision, there was an amendment in C.P.C. which has been enforced in 2002; a
rider is put upon the power of the court.

Now Question arose, Whether according to this Proviso amendment will be allowed after
commencement of trial or not?

On this point, Proviso to Rule 17 itself mention that the court should not allow amendment
after the commencement of trial unless it comes to the conclusion that despite due diligence,
the matter could not have been raised by the party before such commencement. In Baldev
Singh and Ors.v. Manohar Singh and Another, (2006) 6 SCC 498, it was observed that
courts are inclined to be more liberal in allowing amendment of written statement than of
plaint. According to the court, Order VI Rule 17, including the proviso, is a procedural
provision relating to amendment of plaint or written statement and the limitations in respect
thereof and, therefore, the same should be interpreted to advance and not retard or defeat
justice.

The court even reiterated however negligent or careless may have been the first omission and
howsoever late, the proposed amendment should be allowed, if it can be made without
injustice with other side and there is no injustice if the other side is compensated by cost.

If the amendment would convert the suit or defence into another one of a different character
then such an amendment will not be permitted.

Order VI Rule 17 talks of Amendment of Pleadings. It does not talk about substitution of
cause of action; there Order VIII Rule 9 operates i.e. subsequent pleading. Defendant can had
an existing pleading a new defence but he cannot change the earlier one by way of
amendment so as to cause the prejudice to other party or to substitute cause of action or
character of the suits.

8
Rule 17: Amendment of Pleadings- This rule provides wide discretionary power to the
court to allow either party to amend its pleading (plaint & written statement), of which the
purpose would always be to introduce the matters to determine the real questions in
controversy, which means that all such amendments that enables a court to try the suits in its
merits, being the only purpose of trial, must be allowed by the court. The motive is to further
the ‘interest of justice’ and to prevent the ‘multiplicity of proceedings’.

It is provided that this amendment must be asked for and granted at any stage of proceedings
but before commencement of trial, however, it is a general rule subjected to the proviso,
which says that if the amendment is asked after such period, then it will not be granted unless
the party seeking amendment proves that he could not demand such relief before the
commencement of the trial in spite of due-diligence.

The seeking of this relief although being a right of the parties is discretionary upon the court
to grant. Thus, the court has to exercise its discretion guided by the sound judicial principles
and upon facts and circumstance of each case.

Following are the general guidelines that the court may assess before using its discretion:

i. All amendments will be generally permissible when they are necessary for
determination of the real question of controversy in the suit.
ii. Substitution of one cause of action or the nature of the claim for another in the
original plaint or change of the subject matter or controversy in the suit is not
permissible.
iii. Introduction by amendment of inconsistent or contradictory allegation in negation of
the admitted position of facts, or mutually destructive allegation of facts are also
impermissible though inconsistent pleas on the admitted position can be introduced by
ways of amendment.
iv. In general, the amendment should not prejudice the other side which cannot be
compensated in cost.
v. Amendment of a claim or relief which is barred by limitation when the amendment is
sought to be made should not be allowed to defeat a legal right accrued by the other
party except when such consideration is outweighed by the special circumstances of
the case.
It is also called voluntary amendment.

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 Circumstances when amendment is allowed:
Amendment will be allowed:
I. If it is necessary for the purpose of determining the real question in controversy
between the parties. In Rajesh Kumar Aggarwal v. K.K. Modi10, the Supreme Court
held that courts should allow all amendments that may be necessary for determining
real questions of controversy between the parties provided it does not cause
prejudice to the other party.
II. If the amendment does not cause injustice to the other side.
III. If the amendment subserves the ultimate cause of justice and avoids further
litigation.

Amendment not allowed:

I. If change in the subject matter or controversy in the suit.

II. Inconsistent or contradictory allegation in negation of admitted facts or mutually
destructive allegation of facts.
III. Amendment should not be prejudiced to the other side which cannot be compensated
in cost.
IV. Amendment of a claim or relief is barred by limitation then it should not be allowed
so as to defeat a legal right accrued by the other party, except so in special
circumstances.
V. Not allowed which results in defeating a legal right to the opposite party on account
of lapse of time.

In Venture Global Engineering v. Satyam Computer Services, AIR 2010 SC- The Court said
two thing in this case.

1. In deciding amendments the court should prefer substance to form and techniques.
[substance is important, form is not]
2. Interest of justice must be paramount consideration.

In Estrella Rubber v. Dass Estate, AIR 2010 SC- Delay in making an application for
amendment may be a ground for doubting the genuineness but not a good ground for refusing
the application.

10
(2006) 4 SCC 385
10
Observation of the Court-

First: The Court is more liberal in accepting amendments of written statements than that of
plaint. This is due to the reason that the plaint is the basis of cause of action.

Second: The case laws of recent times indicates that a court have been taken liberal view of
amendment and as a general rule amendments are allowed unless they cause injustice to the
other party which cannot be compensated in terms of money or they are mala fide or they
take away vested rights accrued to the other party.

Situations when amendment of pleadings may be refused

Following are the situations when amendment of pleading may be refused:

1. When the amendment is not necessary for the purpose of determining the real
question in controversy between the parties. This principle is well illustrated in
Eduvion v. Cohen (1889) 43 CD 187, 190. In that case B and C wrongfully removed
A’s furniture. After that A files a case against one of joint tortfeasor and get a
judgement against him. Now, again A sued another Joint Tortfeasor. After A’s
evidence was over, C wants to seek for amendment of pleading whereby he asks for
judgement in the first case. The application for seeking the amendment of pleading
can be rejected because it was not necessary to determine the real question in
controversy between the parties.
2. Where the plaintiff suits should be wholly displaced by proposed amendments- To
understand this Steward v. The North Metropolitan Tramway Corporation (1886) 16
QB 178 (CA). Here plaintiff sues Tramway Corporation for negligence caused by
them in keeping Tramway. The company denied negligence and company does not
plea that it was not the proper party. Six Months after filing of written statement
company applied for amendment for adding a plea that by a contract local authority
and not the company was required to maintain the Tramway and so it should be filed
against local authority. The court did not allowed this amendment and said plaintiff’s
remedy against the local authority is time-barred now.
3. When the amendment takes away a legal right accrued by lapse of time. This is well
illustrated in the case of Weldon v. Neal (1887) 19 QB 394 (CA). In this case suit was
filed for damages for slander and then it was leave application for amendment to
claim for assault or false imprisonment. Now the fact is this claim for assault or false

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 imprisonment is time barred on the date of leave application but it was not time barred
on the date of the suit.
4. When amendment introduces a totally different and new inconsistent case. This point
is well illustrated in P.A. Ibrahim Ahmad v. F.C.I (1999) SC that the general rule by
allowing amendment of pleading. Party should not be allowed to setup a new cause of
action and that the parties cannot be allowed to completely change a case. In this case
earlier petition was the case is decided by an arbitrator. Now, he went to amend the
application and convert it as a suit and praying of the recovery of a sum of Rs. 1, 74,
667 from the arbitrator. The court not allowed for amendment because it would
introduce totally a new cause of action and change the nature of suit.
5. When application for amendment is not made in good faith- So amendment will not
allowed if the applicant is acting mala fide. In other words, if it is not made in good
faith, amendment will be refused.
In Basavan Jaggu Dhobi v. Suknandan Ramdas Choudhary, defendant initially says
he was a joint tenant. Subsequently he submitted that he was a licencee for monetary
consideration who was a deemed tenant as per provision of Section 15 A of Bombay
(Rent, housing, lodging and Contract) Act. The court said defendant has validly taken
such an inconsistent plea. The court also said by this inconsistent plea cause of action
is not affected. In many cases the courts are more generous in allowing amendments
of written statements as the question of prejudice is less likely to operate in that event.

Approach of the Court: While considering the amendment applications the courts should
not adopt hyper technical approach. In Haridas Alidas Maniharlal v. National Building Co.,
AIR 1969 SC 171, Supreme Court said that the court should be extremely liberal in granting
prayer of amendment unless serious injustice or irreparable loss is caused to the other side.
Merits of the amendment sought to be incorporated should not judged at the stage of allowing
the prayer for amendment [Usha Devi v. Rijwan Ahmad, (2008) 3 SCC 717].

In B.K.N. Pillai v. P. Pillai, (2000) 1 SCC 712, the apex court has held that delay on its own,
untouched by fraud is not ground for rejecting the application for amendment.

In Venture Global Engineering v. Satyam Computers, AIR 2010 SC 3371, the Court held
that if a party is entitled to amend its pleading, then the right to amend cannot be defeated just
because a wrong section or a wrong provision has been quoted in the amendment petition.

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Rule 18: Failure to amend after order- Where a pleader after obtaining leave to amend
does not amend his pleading within the time specified or within 14 days (when no time is
specified), he shall not be permitted after such time to amend his pleading unless a time is
extended by the court, in regards to the facts and circumstances of the case.

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 PLAINT: ORDER VII
Introduction
The term Plaint has not been defined in the Code. However, it can be defined as a statement
of claim by presentation of which the suit is instituted. It is pleading of the plaintiff. Order
VII lays down rules relating to plaint. Rules 1-8 of Order VII deals with particular required in
a plaint.

Meaning: Plaint means a statement in writing of a cause of action in which the relief is
claimed is set out in detail or a document by presentation of which a suit is to be instituted.
Thus, plaint is a pleading that contains all such contents as are provided under this rule, as a
frame of such plaint. However, substantially a plaint is the expression of the cause of action
of the party presenting it and the relief he claims. Rule 1 of Order VII contents that a plaint
must contain certain particulars required to be stated in the plaint:

1. Name of the court (For e.g. in the Matter of Civil Judge Junior Division) in which the
matter is to be tried [Rule 1(a)],
2. The name, description and place of residence of plaintiff [Rule 1(b)],
3. The name, description and place of residence of defendant [Rule 1(c)],
4. The fact of any of the party being a minor [Rule 1(d)],
5. The cause of action (Pleadings) [Rule 1(e)],
6. Facts showing that the court has jurisdiction [Rule 1(f)],
7. Relief claimed by the Plaintiff, simply or in alternative [Rule 1(g), 7 & 8],
8. Where the Plaintiff has allowed set-off or relinquished a portion of his claim, the
amount so relinquished [Rule 1(h)],
9. The valuation of the suit [Rule 1(i)],
10. Where the suit is for recovery of money, precise amount claimed [Rule2],
11. Where the subject matter is an immovable property, a description of the property
sufficient to identify the same [Rule 3],
12. If the suit is filed in representative capacity, the fact 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 file such a suit [Rule 4].

Money suits: Order VII Rule 2- In a money suits, as a general rule, where the plaintiff
seeks for recovery of specific amount, the precise amount must be stated in the plaint. For
e.g. the amount claimed must not be any uncertain numbers i.e. approx Rs. 10,000, etc. The

1
exact amount must be stated. However, when the plaintiff sues for mesne profits or for
unsettled accounts or for movables where the value cannot be estimated by due diligence, the
approximate amount may be claimed in the plaint.

Rule 5: Defendant’s interest and liability to be shown- The plaint shall show that the
defendant is or claims to be interested in the subject-matter, and that he is liable to be called
upon to answer the plaintiffs claimed.

Rule 6: Ground of exemption from limitation law- If the plaint is filed after the limitation
period as provided for its institution, has expired, the plaint must also show the grounds upon
which an exemption, if any, is claimed by the plaintiff. The court may grant exemption on
such grounds if it thinks fit. However, the court is also free to grant such exemption on any
other ground not mentioned in the plaint but raised by the plaintiff, if such ground raised does
not destroy the ground in the plaint.

Rule 7: Relief to be specifically stated- This Rule provides for the manner in which the
relief i.e. prayer may be stated by the plaintiff. It says that the plaintiff must state in a plaint a
relief, either simply or in alternative, General relief or any relief that the court may grant on
its own discretion may not be specifically asked for.

Rule 8: Relief founded on separate grounds- then different cause of action.

Rule 9: Procedure on admitting Plaint- This rule provides that in the event of the court
issuing summons to the defendant, the plaintiff will be directed to present as many copies of
the plaint as there are defendants, in the court, within 7 days of the order issuing summons.
The plaintiff must also furnish the fees for issuing such summons. Rule 11(f) further states
that the plaint shall be liable to be rejected when the compliance of provision of Rule 9 is not
done.

Rule 10: Return of Plaint- Order VII Rule 10-10 B deal with the return of plaint. According
to Rule 10, where at any stage of the suit the court finds that the court has no jurisdiction
whether territorial or pecuniary or as to the subject matter, it shall return the plaint to be
presented in the proper court in which the suit ought to have been instituted.

The court shall intimate its decision to the plaintiff before returning the plaint when
defendant has appeared and the court of Appeal or Revision has the power to return the plaint
under this rule after setting aside the decree.

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 The Judge shall, on returning the plaint, endorse the date of presentation and return
and also the name of party presenting it and brief reasons of return.

The endorsement under Sub-Rule 2 shall be subject to Section 14 of the Limitation

Act, 1963 i.e. if plaintiff prosecutes bona fide in a wrong court that period shall be excluded
from limitation.

Rule 10 A: Power of court to fix a date of appearance in the court where plaint is to be
filed after its return- The Court under this rule has some powers for exercising procedural
formalities in the cases provided in this rule. For e.g. in the event, the defendant appears, the
court is under the duty to intimate to the plaintiff its decision before returning the plaint.

And when the plaintiff if so intimated, he may apply to the court to ask for the proper forum
in which the suit must be filed and also to fix the date of appearance in that court and to give
notice of such date to the defendant.

Although the plaintiff is allowed to appeal against the order of return, but in case the
application as mentioned above is filed such appeal is barred.

Rule 10 B: Power of appellate court to transfer of suit to the proper Court- In the event
of filing an appeal against the order of return, if the Appellate Court confirms such order, it
may direct the plaintiff to file the plaint in the proper court, subject to limitation and may also
fix a date of appearance before such court (the court to which it is sent need not issue fresh
summons unless required).

Appeal against Order passed under Rule 10: An order passed by the court returning the
plaint under Order VII Rule 10 is appealable according to Order 43 Rule 1(a) of the Code. If
the order is confirmed in appeal, then Order 7 Rule 10B allow the court of appeal, upon
application of plaintiffs, to direct the plaintiff to file the plaint in proper court, fix a date for
appearance and notify the parties accordingly. However the claim of the plaintiff should not
be barred by limitation.

In ONGC v. Modern Construction Co. (2014) 1 SCC 648, the Supreme Court held that when
a plaint is filed in the proper court after getting returned from the wrong court, it cannot be
said to be said to be a continuation of the suit. The suit must deemed to commence when the
plaint is filed in the proper court.

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Rule 11: Rejection of Plaint- This rule provides for the power of the court, in which the
court may rightfully reject a plaint due to the defects provided herein. The defects provided in
the provision are:

a) Non-disclosure of cause of action- If the plaint does not disclose any cause of action,
the court will reject it. The court must come to the conclusion that even if the
allegations set out in the plaint are proved, the plaintiff would not be entitled to relief.
The Supreme Court in Roop Lal Sathi v. Nachhattter Singh Gill, AIR 1982 SC
1559, held that a part of the plaint cannot be rejected and if no cause of action is
disclosed the plaint should be rejected as a whole.
b) Undervaluation of the relief claimed and failure to correct after direction.
c) Insufficiency of stamp paper and if it is not corrected within given time. It must be
noted here that under Rule 11(b) and (c) there is no automatic rejection of plaint. If
the court comes to a conclusion that relief claim is undervalued or plaint is
insufficiently stamped then the court is required to give sufficient time to the plaintiff
to correct the valuation and deposit the requisite court fee. If upon giving sufficient
time the plaintiff fails to correct the same then the power under these rules is to be
exercised.
d) Suit is barred by any law including law of limitation. But if question of limitation is
connected with the merits of the case, it will be decided with other issues
e) It is not filed in duplicate. It means that the plaint has to be filed in duplicate
otherwise it will be rejected. Even Order IV Rule 1 clearly indicates that for
institution of suits the plaint has to be filed in duplicate.
f) Plaintiff fails to present requisite copies of the plaint with summons as required by
Rule 9. It means the plaintiff is under obligation to present copies of plaint for ach
defendants and requisite fees for summons within 7 days.

The court on these grounds does not prima facie reject the plaint, it provides for the time to
the plaintiff to cure such defects and still if the defects are not removed, the court shall
proceed with such rejection.

This rejection can be done at any stage before the conclusion of trial, and the ground on
which it should be rejected must be considered by the simple reading of the plaint only and
not on the basis of allegations made by the defendant in his written statement and not also on
the basis of application for rejection.

4
The grounds provided in the rule are not exhaustive i.e. the court may always evolve certain
other defects in the plaint that may lead to its rejection. For e.g. the non-service of notice
under Section 80 of CPC and the plaint being instituted in one such defect. The Supreme
Court in Mayar H.K. Ltd. v. Owner and Parties, Vessel M.V. Fortune Express, AIR 2006
SC 1828 held that grounds of rejection of plaint specified in Rule 11 are not exhaustive. A
plaint can be rejected on other relative grounds also. Where the plaint is found to be
vexatious or meritless, not disclosing a clear right to sue, the court may reject the plaint.

Part rejection of Plaint: The Supreme Court in Madhav Prasad Aggarwal v. Axis Bank,
(2019) 7 SCC 158 held that plaint can either be rejected as a whole or not at all. It is not
permissible to reject plaint qua any particular portion of a plaint including against some of the
defendant(s) and continue the same against the others.

The proviso further provides that when the time is fixed by the court for removal of defects
under clause (b) or (c) has expired, further time shall not be extended unless the court is
satisfied that plaintiff was prevented by any cause of exceptional nature.

An order of rejection of plaint is a deemed decree, as provided under Section 2(2) of CPC,
1908.

In R.K. Roja v. U.S.Rayadu & Anr. (2016) 14 SCC 275, the Hon’ble Supreme Court held
that “The application under Order VII Rule 11 may be filed at any stage but once the
application is filed the court has to dispose of the same before proceeding with the trial”.

Rule 12: Procedure on rejecting Plaint- Where a Plaint is rejected the Judge shall record an
order to that effect with the reasons for such order.

Rule 13: Where rejection of plaint does not preclude presentation of fresh plaint- The
rule provides for the consequence or a remedy for the order of rejection, wherein the plaintiff
is allowed to institute a fresh plaint in respect of the same cause of action in the proper court
subject to limitation. Therefore, although being a decree, Res-Judicata does not apply on such
orders. Thus the rejection of plaint being a deemed decree, the plaintiff has two remedies in
case of rejection of plaint which are as follows

a) It is a decree and thus appealable under Order 41.

b) Plaintiff may bring a fresh suit in respect of same cause of action.

5
Rule 14: Production of documents on which plaintiff sues or relies- This rule provides for
certain requirements as to the documents to be a appended along with the plaint by the
plaintiff which are in his possession and for the support of his claim and other related
provisions.

Rule 16: Suits on lost negotiable instruments- This rule talks about a situation when the
suit based upon a negotiable instrument which is not found i.e. has been lost, and on which an
indemnity exists, the court may pass a decree as if the instrument is produced before the
court.

Rule 17: Production of shop book- (1) Save in so far as is otherwise provided by the
Bankers’ Books Evidence Act, 1891 (18 of 1891), where the document on which the plaintiff
sues is an entry in a shop book or other account in his possession or power, the plaintiff shall
produce the book or account at the time of filing the plaint, together with a copy of the entry
on which he relies.

(2) Original entry to be marked and returned—The court, or such officer as it appoints in this
behalf, shall forthwith mark the document for the purpose of identification, and, after
examining and comparing the copy with the original, shall, if it is found correct, certify it to
be so and return the book to the plaintiff and cause the copy to be filed.