Cpc Notes :- Rishikesh R Morale

What is Jurisdiction and its types

JURISDICTION
Jurisdiction can be defined as the limit of a judicial authority or the extent to
which a court of law can exercise its authority over suits, cases, appeals etc.
The rationale behind introducing the concept of jurisdiction in law is that a
court should be able to try and adjudicate only in those matters with which it
has some connection or which fall within the geographical or political or
pecuniary limits of its authority. A 1921 Calcutta High Court judgment in the
case of Hriday Nath Roy v. Ram Chandra sought to explain the meaning of the
term ‘jurisdiction’ in a great detail. The bench observed:

‘An examination of the cases in the books discloses numerous attempts to

define the term ‘jurisdiction’, which has been stated to be ‘the power to hear
and determine issues of law and fact;’ ‘the authority by which three judicial
officers take cognizance of and decide cause;’ ‘the authority to hear and decide
a legal controversy;’ ‘the power to hear and determine the subject-matter in
controversy between parties to a suit and to adjudicate or exercise any judicial
power over them;’‘the power to hear, determine and pronounce judgment on
the issues before the Court;’‘the power or authority which is conferred upon
a Court by the Legislature to hear and determine causes between parties and
to carry the judgments into effect;’ ‘the power to enquire into the facts, to
apply the law, to pronounce the judgment and to carry it into execution.’

Types of Jurisdiction:
In India, there are mainly 5 types of jurisdiction which can be classified as
follows:

 Subject-matter jurisdiction:
It can be defined as the authority vested in a court of law to try and hear cases
of a particular type and pertaining to a particular subject matter. For example,
District Forums established under the Consumer Protection Act, 1986 have
jurisdiction over only consumer-related cases. It cannot try criminal cases.
  Territorial jurisdiction:
Under this type of jurisdiction, geographical limits of a court’s authority are
clearly delineated and specified. It cannot exercise authority beyond that
territorial/geographical limit. For example, if a certain offence is committed in
Madhya Pradesh, only the courts of law within the boundaries of Madhya
Pradesh can try and adjudicate upon the same unless otherwise provided for
in a particular piece of legislation.

 Pecuniary jurisdiction:
Pecuniary means ‘related to money’. Pecuniary jurisdiction tries to address
whether a court of law can try cases and suits of the monetory value/amount
of the case or suit in question. For example, consumer courts have different
pecuniary jurisdictions. A district forum can try cases of value upto Twenty
lakh rupees only.

 Original jursidiction:
It refers to the authority of a court to take cognizance of cases which can be
tried and adjudicated upon in those courts in the first instance itself. It is
different from appellate jurisdiction in the sense that in case of the latter, the
courts rehear and review an already decided matter whereas in case of the
former the cases are tried for the very first time. For example, the High Court
of Allahabad has original jurisdiction with respect to matrimonial,
testamentary, probate and company matters.

 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. At times they can also modify the sentence.

Some of the other types of jurisdiction include:

 Concurrent jurisdiction: A situation in which more than one court of

law has the jurisdiction to try certain matters. Sometimes, this type
of jurisdiction is also referred to as ‘co-ordinate jurisdiction’.
  Admirality jurisdiction: Jurisdiction pertaining to mercantile and
maritime law and cases.
 Probate jurisdiction: Matters concerning the administration of an
estate belonging to a dead person and its guardianship come under
probate jurisdiction. For example, cases involving administration and
execution of the will of a deceased person.
 Summary jurisdiction: It refers to the authority of a court to try
matters in accordance with the summary procedure. Such cases
take form of summary trials in order to speedily resolve a dispute.

Res Judicata with examples

Res Judicata meaning

Res means “subject matter” and judicata means “adjudged” or decided and
together it means “a matter adjudged”.

In simpler words, the thing has been judged by the court, the issue before a
court has already been decided by another court and between the same
parties. Hence, the court will dismiss the case as it has been decided by
another court. Res judicata applies to both civil and criminal legal systems. No
suit which has been directly or indirectly tried in a former suit can be tried
again.

Res Judicata example

 ‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent
on the ground as the area of the land was less than the mentioned
on the lease. The Court found that the area was greater than shown
in the lease. The area was excess and the principles of res judicata
will not be applied.
 In a case, ‘A’ new lawsuit was filed in which the defendants requested
that the Court dismiss the lawsuit with a plea of res judicata. She was
 barred from bringing a claim of res judicata because her previous
claim was dismissed for fraud. The Court said that the defence of res
judicata must be proved by evidence.

Principle of Res Judicata

The principle of res judicata seeks to promote the fair administration of justice
and honesty and to prevent the law from abuse. The principle of res judicata
applies when a litigant attempts to file a subsequent lawsuit on the same
matter, after having received a judgment in a previous case involving the same
parties. In many jurisdictions, this applies not only to the specific claims made
in the first case but also to claims that could have been made during the same
case.

Nature and Scope of Res Judicata

Res judicata includes two concepts of claim preclusion and issue preclusion.
Issue preclusion is also known as collateral estoppel. Parties cannot sue each
other again after the final judgment on the basis of merits has reached in civil
litigation. For example, if a plaintiff wins or loses a case against the defendant
in the case say A, he cannot probably sue the defendant again in case B based
on the same facts and events. Not even in a different court with the same facts
and events. Whereas in issue preclusion it prohibits the relitigation of issues
of law that have already been determined by the judge as part of an earlier
case.

The scope has been decided in the case of Gulam Abbas v. State of Uttar
Pradesh. I this case the court incorporated the rules as evidence as a plea of
an issue already tries in an earlier case. Judgment of this case was difficult as
the judges should apply res judicata. It was decided that res judicata is not
exhaustive and even if the matter is not directly covered under the provisions
of the section it will be considered as a case of res judicata on general
principles.

Rationale
The principle of res judicata is founded upon the principles of justice, equity,
and good conscience and it applies to various civil suits and criminal
proceedings. The purpose of this principle was to inculcate finality into
litigation.
Doctrine of Res Judicata
The double jeopardy provision of the Fifth Amendment to the U.S. Constitution
protects people from being put on a second trial after the case has been
judged. So the doctrine of res judicata addresses this issue and it bars any
party to retry a judgment once it has been decided.

Section 11 of the Civil Procedure Court incorporates the doctrine of res judicata
also known as “ rule of conclusiveness of judgment”. The doctrine of res
judicata has been explained in the case of Satyadhyan Ghosal v. Deorjin Debi.
The judgment of the court was delivered by Das Gupta, J. An appeal was made
by landlords who attained a decree for ejectment against the tenants who were
Deorajin Debi and her minor son. However, they have not been yet able to get
possession in execution soon after the decree was made. An application was
made by the tenant under Section 28 of the Calcutta Thika Tenancy Act and
alleged that they were the Thika tenants. This application was resisted by the
landlords saying they were not Thika Tenants within the meaning of the Act.

The tenants moved to the High Court of Calcutta under the Civil Procedure
Code. The court applied the principle of res judicata to achieve the finality in
litigation. The result came that the original court, as well as the higher court,
can proceed for any future litigation on the basis that the previous decision
was correct.

The doctrine of res judicata says –

 That no person should be disputed twice for the same reason.

 It is the State that decides there should be an end to a litigation
 A judicial decision must be accepted as the correct decision.

Res judicata under CPC

Section 11 of the CPC states that once an issue has been finally decided by a
court, it cannot be made the subject matter of another suit. The Courts are
barred from entertaining suits in which the matter directly and substantially
at issue has already been finally decided by another court in a previous suit.

The 1976 Amendment Act expanded the scope of Section 11 and brought
execution proceedings within the purview of this Act. The definition of res
judicata provided under Section 11 is not exhaustive.
The rationale of the principle of res judicata can be traced to three judicial
maxims:

 Nemo debet bis vexari pro una et eadem causa: This maxim
means no person shall be subject to prosecution for the same action
twice. This principle aims to protect an offender from frivolous
litigation. The aim of the criminal justice system is reformation, not
vexatious litigation against the offender.
 Res judicata pro veritate accipitur: A decision of a judicial
authority must be duly accepted as correct. If the judicial decision is
not respected as conclusive, then there will be indefinite litigation,
which will lead to confusion and chaos.
 Interest republicae ut sit finis litium: The interest of state lies in
an end to litigation. It is a part of the public policy of the country
that the courts should not be overburdened by the piling up of
repeated suits over the same subject matter.
The jurisprudential significance of these three principles makes res judicata a
universal concept.

Res Judicata landmark cases in India

Daryao v. State of Uttar Pradesh

In the historic case of Daryao v. State of Uttar Pradesh, the doctrine of res
judicata is of universal application was established. The Supreme Court of India
placed the doctrine of res judicata on a still broader foundation. In this case,
petitioners filed a writ petition in the High Court of Allahabad under Article 226
of the Constitution. But the suit was dismissed. Then they filed independent
petitions in the Supreme Court under the writ jurisdiction of Article 32 of the
Constitution. The defendants raised an objection regarding the petition by
asserting that the prior decision of the High Court would be operated as res
judicata to a petition under Article 32. The Supreme Court dismissed and
disagreed with the petitions.
The court held that the rule of res judicata applies to a petition under Article
32 of the Constitution. If a petition is filed by the petitioner in the High Court
under Article 226 of the Constitution and it is dismissed on the basis of merits,
it would be operated as res judicata to bar a similar petition in the Supreme
Court under Article 32 of the Constitution.

Devilal Modi vs. Sales Tax Officer

In the leading case of Devilal Modi vs. STO, B challenged the validity of an
order of assessment under Article 226. The petition was dismissed on the basis
of merits. The Supreme Court also dismissed the appeal that was made against
the order on the basis of merits. B again filed another writ petition in the same
High Court against the same order of assessment. This time the petition was
dismissed by the High Court. The Supreme Court held that the petition was
barred by the principle of res judicata.

Avtar Singh v. Jagjit Singh

A peculiar problem arose in the case of Avtar Singh v. Jagjit Singh. A filed a
civil suit, a contention regarding the arbitration of the Court was taken by B.
The objection was sustained and the plaint was returned to the plaintiff for the
presentation. The Revenue Court did not have any jurisdiction when A
approached the Revenue Court so he returned the petition. Once again A filed
a suit in the Civil Court. B contended that the suit was barred by the doctrine
of res judicata.

Mathura Prasad v. Dossabai N.B. Jeejeebhoy

In the case of Mathura Prasad v. Dossibai N.B. Jeejeebhoy, it was held that
res judicata constitutes between the parties to the previous case and cannot
move again in collateral proceedings. Generally, a decision by a competent
court operates as res judicata even on point of law. However, a question of
law which is not related to facts that gives rise to the right, will not operate as
res judicata. When the cause of action is different or the law is different, the
decision has been already altered by an authority. The decision made will be
declared as valid and res judicata will not operate in the subsequent
proceeding.
Cpc Notes :- Rishikesh R Morale

Order 5 Summon
Introduction
Whenever we want to call someone to be present somewhere, we either call
them in person or through another person, or we connect with them over a
phone call. This is what every person does. But have you ever wondered,
what a court does when it has to call a person in the court or make his/her
presence. Obviously, it cannot make a phone call directly or go to that
person. Then how does a person get to know that he has to be present in
court on a so-and-so date? It’s definitely a good question to think about, isn’t
it?

Wait, you need not think much. The answer lies in the article itself. By the
end of this article, you will be able to clear all your doubts. Well, whenever a
court has to make sure of the presence of a witness or any other person
involved in any case in any manner, it sends an official notice to that
particular person. This official notice or document directs a person to be
present in the court on a particular day before a judge is called a summon.
The court sends this through a court officer or any other person entitled by
the court to do so.

Now, you may be wondering what is mentioned in that document. What are
the requirements for a summons? What will happen if someone rejects or
does not appear after a summons is served? Do not worry. All of these
questions will be answered one by one in this article. The Code of Civil
Procedure, 1908, gives a proper procedure related to summons. This article
explains the meaning, objective, essentials, and modes of service of
summons. It further discusses the scenario when a person refuses or objects
to the summons served to him.

Meaning, object and essentials of summons

If we try to understand the legal recourse in the case of a civil suit, then the
first step leading to a civil suit is a dispute over a particular matter or
property. This gives rise to a cause of action followed by identification of the
parties, i.e., plaintiff and defendant. This is followed by the identification of
the subject matter over which the dispute has arisen. The jurisdiction of the
court is determined along with the value of the suit/plaint. After considering
the jurisdiction and valuation of plaint, a plaintiff files a suit or plaint in a civil
court. The most important step comes after the institution of a suit, which is
the issuance of summons within seven days of the institution of the plaint,
after which a defendant is under an obligation to submit a written statement
within 30 days. This is followed by further proceedings and arguments.

The importance of summons lies in the fact that when a plaintiff files a suit,
the defendant must be informed about the suit that has been filed against
him so that he can be heard and the procedure of fair trial is followed. The
document which is sent by the court to the defendant to inform him about
the suit filed against him is known as a summon.

The word ‘summon’ has not been defined anywhere in the code. The
definition of summons as given by the Oxford dictionary states that, “a
document which is issued from the court of justice and calls upon a person to
whom it is directed, to be present before a judge or court for a specific
reason is called a summon.” Issue and service of summons are given under
Order 5 of the Code.

Objective of summons
The following are the objectives of summons:

 It is important to inform a person about any legal action that has

been taken against them.
 It gives an opportunity to the defendant to present his case and side
of the story.
 The basis of summons lies in the maxim “Audi Alteram
Partem”, which means to hear both sides.
 It further helps in following the principles of natural justice and
ensures fair proceedings and trial.
 It helps in ensuring the presence of either a witness or accused or
any other person who is involved directly or indirectly in a suit
before the court.
 To produce the necessary documents.

Essentials of summons
The essentials of a summon are given under Order 5, Rules 1 and 2 of the
code. These are:

 Every summon must be signed by the judge or any other officer

whom he appoints to do so on his behalf.
  It must be sealed properly.
 The court will not issue any summons to the defendant if he has
appeared before the court at the time of the institution of the
plaint.
 After summons are issued, the defendant is required to file written
statements within 30 days. If he fails to do so, he has to provide
reasons, and if the court is satisfied, it can extend the time period to
file written statements to not more than 90 days.
 Another essential element of summons is that every summon must
be accompanied by a copy of the plaint.
 The format of a summons must be according to the prescribed form
given in Appendix B of the First Schedule under the code.

Contents of summons
Rule 5 to Rule 8 of Order 5 under the code gives the content of summons. A
summon must contain:

 Information, whether it is issued for settlement of issues or final

disposal of the suit. According to Rule 5, the court of small causes
can only issue a summons for the final disposal of a suit and nothing
else.
 It must contain the date and day fixed for the appearance of the
defendant, considering the factors like the residence of the
defendant, time, etc., so that he can get a reasonable time and
opportunity to appear before the court.
 It also contains the list of necessary documents that a defendant is
required to produce in court.
 If the summons is issued for final disposal, it must direct the
defendant to produce witnesses on his behalf to support his side.

Summons to defendants
According to Rule 1 of the Order, whenever a lawsuit is instituted by a
plaintiff, the defendant has to file a written statement within 30 days of the
issuance of the summons to him. If he fails to do so and furnishes an
appropriate reason, the court, after consideration, may extend the time up to
90 days. However, the court will not issue any summons if the defendant was
present at the time of the institution of the plaint and has admitted the claim
of the plaintiff. Section 27 of the Code further provides that a summons must
be issued to the defendant when the suit is instituted to appear before the
court and answer the plaint in the form of written statements.

Section 28 mentions the condition where the summons issued to a defendant

has to be sent to a different state or jurisdiction where he resides. In such a
situation, the court will send the summons to the court having jurisdiction in
that particular area, and then the said court will perform duties as if the
summons had been issued by it. It will further return the record of its
proceedings to the court that originally issued the summons. If there is any
difference in language between the summons issued and the records, the
records will be translated into Hindi or English and then sent along with the
summons.

Appearance of defendant
According to Rule 3, if summons has been issued to the defendant, he may
appear before the court in the following ways:

 He may appear himself in person or,

 Through his pleader, who will answer all the questions on his behalf
or,
 by a pleader along with another person to answer all the questions.
The court, however, has the power to call defendants at any time to appear
personally before the court if there are reasons to do so.

Exemption from appearance

The code provides certain provisions that mention the people who are
exempted from appearance in the court on the issuance of a summons and
the necessary conditions. These are:

 Section 132 provides that any woman who cannot be compelled to

appear in public due to the customs and other manners followed,
will not be asked to appear before the court. This does not mean
that she will not be arrested if required in civil proceedings. This will
only happen if the code provides for any such exemption provision.
 Section 133 further gives the list of particular people who are
exempted from appearing before the court personally. This includes:
o The President of India
o Vice-President
o Speaker of house
 o Union Ministers
o Supreme Court judges
o Governors of states and union territories
o Speakers of state legislative assemblies
o Chairman of the state legislative council
o States’ Ministers
o High Court judges
o Any other person on whom Section 87B is applicable.
 According to Rule 4 of Order 5, a person will be exempt from
appearing before the court if:
o He does not reside within the local limits of the court’s
jurisdiction or
o He lives in a place that is more than 50 miles or 200 miles
away from the court.

Mode of service of summons

This is one of the most fundamental and important rules of law that states
that a party must be given a fair chance to represent himself, and this is only
possible if he has been served with fair and reasonable notice of legal
proceedings stating the legal action taken against him. This will also give him
the opportunity to defend himself and present his case.

One of the major causes of delay in justice or pendency in cases is the

service of summons. The defendants or people to whom the summons are
issued may avoid it or ignore it, which results in a delay in proceedings,
leading to a delay in justice. The Law Commission and the makers of the law
felt a need to make certain amendments with respect to the service of
summons and their modes of service. The code gives several modes of
service of summons, which are discussed below in detail.

Personal or direct service

This mode of service of summons is simple. In this mode, a copy of the
summons is issued to the concerned person or his agent or any other person
on his behalf, and the person receiving the summons must acknowledge the
same. It is the duty of the officer serving summons to ensure and make an
endorsement with regard to the summons served that states the time and
manner of service, the name and address of the person receiving the
summons, and witness to the delivery of the summons.
Rules 10 to 16 and Rule 18 of the order deal with personal or direct service.
While serving summons through this mode, the following principles must be
taken into consideration:

 The service officer must try to serve the summons to the defendant
or his agent.
 If the defendant is not present at his place of residence and there is
no agent, then it must be served on any adult male or female
member of the family living with him on his behalf.
 If a suit is related to the business or work of a person who does not
reside within the territorial jurisdiction of the court, then it may be
served to the manager or agent of that business or work.
 In the case of a suit on immovable property, if the defendant is not
found, then the summons may be served on any person or agent
who is in charge of such property.
 If a suit involves two or more defendants, then the summons must
be issued to each of them.

Service by the court

Rule 9 of the Order deals with the service of summons by court. It provides
that if a defendant resides within the jurisdiction of the court, then the
summons must be served to him by the court officer. It can also be served
by post, fax, message, email service, approved courier service, etc., but if
the defendant does not live within the jurisdiction, then it must be served by
the officer of the court within whose jurisdiction he resides.

In the case, summons are served by Registered post acknowledgment due

(RPAD), the court will assume the valid service of summons is complete even
if there is no acknowledgement slip. If a person refuses to accept it, the
court may treat it as a valid service. The Supreme Court, in the case
of Salem Advocate Bar Association v. Union of India (2005), directed the
high courts to make appropriate rules or guidelines to ensure that the
provisions of summons are implemented properly without any abuse of
power or process of law.

Service by plaintiff
According to Rule 9A of the Order, the court may permit the plaintiff, on his
application, to serve summons to the defendants. He has to deliver the copy
of the summons which is sealed and signed by the judge or any other officer
appointed by the judge to do so, and also make sure that the defendant
summons acknowledges the service. If the defendant refuses to acknowledge
the service or if it cannot be served personally, the court will re-issue the
summons and serve it to the defendant.

Substituted service
Substituted service means a mode of service of summons that is adopted in
place of ordinary service of summons. There are two modes of substituted
service as given under Rules 17, 19 and 20 of the Order. These are:

 If the defendant or his agent refuses to acknowledge or sign the

receipt of the summons, or if the officer serving the summons
reasonably believes that the defendant is not present at his
residence and will not be found within a reasonable time, and
moreover if there is no agent to receive summons on his behalf, he
may affix the copy of the summons on the door or any conspicuous
part of his house.
o In this case, the serving officer has to make a report
stating the reasons for affixing the summons, the
circumstances, the name and address of the person who
helped him and the witnesses to affixing the summons.
o The court can declare that the summons has been issued if
it is satisfied with the report of the officer.
 If the defendant is deliberately avoiding service and the court has a
reason to believe so, it may affix the summons in some conspicuous
place in the court and house of the defendant where he used to
reside, carry on business or work for somebody.
In the case of Yalllawwa v. Shantavva (1997), the Supreme Court held that
this mode of service of summons is not an ordinary mode and must not be
used normally. It must only be used in exceptional cases and treated as the
last option.

According to Rule 20, if a court orders to advertise the summons in the

newspaper, then it must be done in a local newspaper where the defendant
lived, had a business, or worked. This service is an effective option to serve
summons even if the defendant is not reading the newspaper (Sunil Poddar
v. Union Bank of India, 2008).

Before issuing the summons through this mode of service, the court must
give the defendant a reasonable time to appear before the court. In another
case, State of Jammu and Kashmir v. Haji Wali Mohammad (1972), the
Supreme Court held that if a summon does not fulfil the requirements of Rule
19 of Order 5 under the Code, then such service of summons is not in
accordance with the law.
Service by post
The Code earlier provided that the summons could be served through the
post as well and was given under Rule 20A of the Order, but this provision
has been repealed by the Amendment Act of 1976.

Service of summons in special cases

Rules 21–30 provide the mode of service of summons in special cases.

 If the defendant resides in another state or outside the jurisdiction

of the court issuing the summons, the court may send the summons
to another court in whose jurisdiction the defendant resides to serve
it on him.
 According to Section 29 of the code, if any foreign summon has to
be served, then it must be sent to the court in the territories where
the code applies, and they will further serve the summons as if it
had been issued by them.
 If the summons has to be served in presidency towns like Calcutta,
Madras, and Bombay, then it may be sent to the Small Causes Court
of that particular jurisdiction.
 If the defendant does not live in India and has no agent then
according to Rule 25, the court can serve the summons by way of
post, fax, email or any other appropriate means. The other way of
serving the summons to such sovereign country where the
defendant resides is either by a political agent or through the court
of that country, which has powers and authority to serve the
summons as given under Rule 26 of the order.
 If the defendant is a public officer, a railway officer, or a servant of
the local authority, then the summons can be served through the
head of their departments.
 If the defendant is a soldier, airman, or sailor, then the summons
can be sent through their commanding officer.
 If the defendant is a convicted prisoner, then the summons can be
served through the officer in charge of the prison.
 In case, the defendant is a company or a corporation, the summons
may be served to the secretary, director, or principal officer of the
company or through post to the address where such company
carries on its business or at its registered office.
 If the defendants are partners in a firm, then it must be served to
any one of the partners, but if the partnership has dissolved before
 the suit has been instituted, then every partner must be served the
summons.
 The court issuing the summons also has the power to substitute it
with a letter of request, which will contain the same contents and
information as the summons. This will be done for any person
depending upon the position or office held by such a person.

Refusal and objections to summons

There are instances where a defendant refuses to accept the summons or
accepts it but refuses to sign the acknowledgment or objects to the summons
being issued. This leads to a delay in the proceedings of the suit. To deal
with such situations, the code has provided certain safeguards.

Refusal of summons
According to Rule 9 of the Order, if the defendant refuses to accept the
summons, it is deemed that the summons has been served on him. Similarly,
when he or his agent refuses to sign the acknowledgement, the court will
assume that he has refused to take delivery of the summons and treat such
summons as duly served. This was also mentioned in the case of Puwada
Venkateswara v. Chidamana Venkata (1976).

Objection to service of summons

In the case of Bheru lal v. Shanti lal (1984), the court held that if there are
any objections to the summons served, they must be raised as soon as
possible and at the earliest. If it is not done at that stage, then the court
assumes that the defendant has waived off this opportunity.

Conclusion
Order 5 of the Code of Civil Procedure, 1908 specifically deals with the issue
and service of summons to the defendant. It provides various rules related to
the issuance of summons and their modes of service. All of these have been
discussed in detail in the article. It also provides the scenario as to what will
happen if a person refuses the summons. The defendant has also been given
the opportunity to raise the objections to the summons if any at the earliest
or else it will be waived. But there are many instances where the defendants
tend to avoid or ignore the summons. This further results in delays in court
proceedings and the pendency of suit. The law makers and the courts must
look into this issue in order to solve the problem of the pendency of cases in
our country.

Stages of the Civil Suit as per the Civil Procedure Code,

1908
In this article, we will discuss the stages of the civil suit under the civil
procedure code, 1908

1) Presentation of the plaint

2) Service of summons on defendant
3) Appearance of parties
4) Ex-party Decree
5) Filing of written statement by the defendant
6) Production of documents by parties
7) Examination of parties
8) Framing of issues by the court
9) Summoning and Attendance of Witnesses
10) Hearing of suits and examination of witnesses
11) Argument
12) Judgment
13) Preparation of Decree
14) Execution of Decree

Now we will discuss it in detail below:-

1) Presentation of the plaint Order 7 of CPC 1908:-
Presentation of the
plaint in the court is the first step or starting point of all the pleading in a case in
India. The whole judicial system under the civil law set in motion by the filling the
plaint.
For the detailed study of the plaint, you can visit here: Plaint meaning, its
essential and particular, etc.
2) Service of summons on defendant (Order 5):
The second stage of the civil suit
is the service of summons on the defendant. Summons is an instrument used by the
court to call the person whose name is mentioned in the plaint as a defendant. It is
a way to inform the person against whose the civil proceedings have been
commenced and he is required to present his defence in the court. It is a process
directed to a proper officer of the court to notify the person named, that he is
required to appear, on a day named and answer the claim in such action.
3) Appearance of parties:
When the summons duly served to the defendant,
the next stage of the civil suit commenced which is the appearance of the parties
before the court on the day fixed. If the defendant does not appear on the day fixed
in the summons the court may proceed ex parte. In the case of the plaintiff, if he is
absent court may dismiss the suit. Where neither parties appear the court may
dismiss the suit.
4) Ex-party Decree(Order 9):
As mentioned above if the defendant, on a fixed
day in the summons does not appear the court may proceed ex-parte. Where the
plaintiff appears and the defendant does not appear when a suit is called up for
hearing and summons is duly served the court may make an order that suits will be
heard ex-parte under Order 9 of the CPC 1908.
5) Filing of written statement by the defendant(Order 8) :
First of all, we should
know that what is written statement. Actually, it is a pleading of the defendant in
the answer to the plaint filed by the plaintiff against him. It is a reply statement of
the defendant in a suit specifically denying the allegations made against him by the
plaintiff in his plaint. The provision regarding the written statement has provided
under Order 8 of the Code of Civil Procedure, 1908.
For more detail about the written statement visit here: Written statement Order 8
of CPC
6) Production of documents by parties (plaintiff and defendant):
After filling
the written statement by the defendant the next stage of the suit is the production of
documents by the parties. At this stage, both parties have to file documents in court
which are in their possession or power. In such a situation, where parties rely on
such a document that is not in their possession then parties have to apply to the
court for issue of summons to authority or persons in whose possession these
documents are. In such a case, parties have to deposit in the court cost of such
production of the documents.
7) Examination of parties:
After the filling of the written statement, production
of the documents and appearance of the parties, the important stage commences
that is Examination of the parties. At the first hearing of the suit, the court
ascertains from each party or his pleader whether he admits or denies such
allegations of fact as made in the plaint and written statement. Such admissions
and denies shall be recorded.
8) Framing of issues by the Court (Order 14):-
 The next of the civil suit is the
framing of issues. It is the duty of the court to framing issues. Order 14 of CPC
provides the provision regarding the framing issues.
9) Summoning and Attendance of Witnesses (Order 16):-
After the framing of
issues parties shall present in the court a list of witnesses whom they propose to
call either to give evidence or to produce documents. Such a list shall be present in
the court on the day appointed and not later than 15 days after the date on which
issues are settled.
10) Hearing of suits and examination of witnesses:-
After the summoning of
the witnesses, the next stage of the civil suit is hearing of suits and examination of
witnesses commence. First right to begin is of plaintiff unless the defendant admits
the facts alleged by the plaintiff and contend that either in point of law or on some
additional facts alleged by the defendant the plaintiff is not entitled to any part of
the relief, in such a case the defendant has the right to begin.
The plaintiff has to submit the evidence that was earlier marked if any
evidence was not marked earlier then it will not be considered by the court. And
the defendant’s advocate will cross-examine the plaintiff and also to the witnesses
who are from the plaintiff’s side.
And the defendant also presents his side of the story supported by his
witnesses and evidence from his side and the plaintiff advocate also cross-
examined the defendant.
11) Argument:-
As soon as the stage of the hearing of suits and examination of
witnesses is over then the suit is kept for the next stage i.e. argument. Once the
evidence has been submitted and cross-examination is conducted by both parties,
then both sides are allowed to present a summary of the case and evidence to the
judge in the final session.
12) Judgment:-
The next stage of the civil suit is judgment, which means the
statement given by the judge on the ground of which a decree is passed.
13) Preparation of Decree:-
After the delivery of the judgment, the next stage
is the preparation of Decree, and it is to be prepared by the concerned clerk.
14) Execution of Decree:-
In this stage, decree-holder compels the judgment-
debtor to out the mandate of the decree or decree or order as the case may be. It is
the process by which a decree-holder recovers the fruits of the judgment. The
execution is complete when judgment creditor or decree-holder gets money or
other thing awarded to him by judgment, decree or order.
Parties to the Suit: Civil Procedure Code
of India
The people are free to choose, a method for resolving their conflict. If one
party to a dispute chooses to file a civil suit in court to resolve his dispute and
seek legal remedies, the other party has to plead his defence and tell the court
why he is not entitled to such a remedy. Now suppose the plaintiff is not aware
of the party against whom he is entitled to get remedy. So in that situation, it
would be difficult to do justice and give the remedy to the plaintiff. So in every
suit, there must be at least one plaintiff who institutes the suit and one
defendant against whom the suit is filed.

Provisions of the Code of Civil Procedure 1908

The plaintiffs and the defendants are two necessary parties to every suit.
However, there may be any number of plaintiffs or defendants in one suit, but
at least one of each is necessary.

The plaintiff has to be careful in selecting the opposite party, i.e., the
defendant, against whom he wants to file a suit for damages. Now suppose
there is more than one person against whom the plaintiff is entitled to claim,
but in the suit he has not mentioned that person as a defendant. And later on,
he realises his mistake and wants to make him the defendant. The law permits
him to do so.

The Code of Civil Procedure (1908), provides under Rule 1 of Order I, for the
joinder of plaintiffs and Rule 3 of Order 1 Rule 3 for the joinder of defendants.

Who is a Necessary Party?

A necessary party is one without whom no order can be effectively made.
Therefore, the "necessary party" is that party without whose presence the suit
must fail. This way, a necessary party is a mandatory party to the suit.

Who is the Proper Party?

A proper party is one in whose absence an effective order can be made but
whose presence is necessary for the complete and final disposal of the case.
To understand the concept of necessary party and proper party, let us consider
a case where a tenant is required to be evicted from the tenanted premises by
the landlord on the ground that he (tenant) has violated a provision of the
agreement that he will not sublet the premises. So the landlord filed a suit for
eviction against the tenant. In this case, the tenant is a necessary party;
however, the sub-tenant will be a proper party.

Joinder of Parties
The main purpose for joinder of parties is to ensure that the suits can be finally
and conclusively decided on merits in presence of all parties.

When Plaintiffs may be Joined

The provisions of Rule 1 of Order 1 of the Code of Civil Procedure provide who
may be joined as plaintiffs in a suit. This Rule provides that all such people
may be joined as plaintiffs in one suit who have, in their own right, a claim
arising out of the same cause of action alleged in the suit. And if such people
brought separate suits, a common question of law or fact would arise in all of
them.

When Defendants may be Joined

The provisions of Rule 3 of Order 1 of the Code of Civil Procedure provide who
may be joined as a defendant in a suit. This Rule provides that all such people
may be joined as defendants in one suit, if there exists a claim against all such
persons, whether jointly, severally, or in the alternative, arising out of the
same cause of action as alleged in the suit; and if separate suits are brought
against all such persons, then in all such suits any common question of law or
fact would arise.

Striking out, Addition, or Substitution of Parties

As a general rule, it is the pleasure of the plaintiff to select his opponent. The
courts should not interfere in it. However, the court also has a duty to ensure
that all parties involved in the dispute are present in order to provide complete
justice and avoid a multiplicity of suits.

Addition or Substitution of Plaintiff

The provision contained under Rule 10(1) of Order I, provides for adding or
substituting plaintiffs. However, for adding or substituting a plaintiff, the
following conditions must be fulfilled: (1) The suit has been filed in the name
of the wrong plaintiff, a bona fide mistake. and (2) that the substitution or
addition of the plaintiff is mandatory for doing complete justice in the suit.

Striking out or Adding Parties

The court has the power to strike out or add a party to the suit under the
provisions contained in Rule 10(2) of Order I. The court must add a party if it
appears to the court that he is a necessary party for doing complete justice in
that case. Further, if it appears to the court that a party is not required for the
complete disposal of the case and that party has been added to the suit
unnecessarily, the court has the power to strike out such party from the suit.

How to add a minor to the suit as a party?

If a minor person has an interest in the subject matter of the suit, he may be
added to it under the guardianship of an adult person who does not have
conflicting interests with the minor's. If the minor is to be named as a plaintiff,
he must do so through a next friend.

As per the provisions of Rule 1 of Order XXXII, every suit by a minor shall be
instituted in name by a person who, in such a suit, shall be called the next
friend of the minor. And if a suit has been instituted against a minor without
the next friend, the defendant may apply to the court to have the plaint, be
taken off the file. In that case, the court may levy costs against the pleader or
the person who filed the suit.

Further if the suit has been filed against a minor making him a defendant in
the suit. As per the provisions contained in Rule 3 of Order XXXII, the court
shall appoint a proper person to be guardian of such minor for the suit.

Case Laws
In the case of Kasturi v. Iyyamperumal, the Supreme Court has laid down the
following two tests to determine whether a particular party is a necessary party
to a proceeding or not:
  There must be a right to some relief against such a party in respect of the matter in
issue.
 It is not possible to pass an effective decree in his absence.

In Anil Kumar v. Shivnath, the Hon’ble Supreme Court observed that the
object of the rule of necessity is to bring on record all persons who are parties
to the dispute relating to the subject matter so as to avoid multiplicity of
proceedings and inconvenience.

Conclusion
The object of the rule of necessity is to promote the cause of justice. It ensures
that all the persons who have any interest in the dispute relating to the
subject-matter, must be brought before the court at the same time for
complete and final disposal of the matter, thereby avoiding multiplicity of
litigation and inconvenience to the other parties.

Written Statement

Introduction
The Code of Civil Procedure, 1908, is the procedural law that governs how
the civil courts of our country must function. It lays down the rules for civil
proceedings. The Code also contains substantive law, as laid down in its 158
sections, and also comprises 51 orders, which constitute its true procedural
aspects. Order VIII of the Code of Civil Procedure deals with written
statements, set offs, and counterclaims. A written statement is an integral
part of a civil suit. When a suit is commenced by a plaint, the defendant has
to file a written statement as a reply. There are several rules in Order VIII
that govern how and when the written statement should be filed, and also
the consequences for not filing. This article discusses the procedure when a
party fails to present a written statement called for by the court, and the
same is discussed under Order 8 Rule 10 of the CPC.
 What is a written statement
The Code of Civil Procedure does not give a definition of a ‘written
statement’. In general terms, it can be defined as the statement of defence
in writing, filed by the defendant, and it deals with every material fact
alleged by the plaintiff in the plaint. It contains objections to the plaintiff’s
allegations as well as new facts, if any. It essentially refers to the pleading of
the defendant, as a plaint is the pleading of the plaintiff. The provisions
concerning the written statement are contained in Order VIII of the Code of
Civil Procedure.

The matter in the written statement must be stated concisely. It must only
contain the facts on which the defendant relies for his defence and not the
evidence to prove such facts.

Pleading of new facts

 As per Order VIII Rule 2, the defendant can also raise new facts that
were not pleaded by the plaintiff in the plaint. He can raise any such
facts or matters that show that the suit is not maintainable.
 However, it must be specifically pleaded and not expressed in
general or vague terms.
 Such facts must be pleaded in the first instance itself. If it is not
raised in the first instance when it was possible, it cannot be
subsequently raised in an appeal.

Denial of facts

 It must either deny or accept the allegations in the plaint. If an

allegation is not denied, it is deemed to have been accepted.
 According to Order VIII Rule 3 of CPC, it is important for the
defendant to make an express and specific denial. The defendant
cannot simply make a general denial of the plaintiff’s allegations.
 As per Rule 4, evasive denial or denial that does not answer the
substance does not qualify as a denial. For instance, if the
defendant wants to deny the allegation of the plaintiff that he had
received a certain sum of money, he has to expressly deny the
receipt of the amount and also specifically state the amount alleged.
Evasive denial is taken as admission unless the plaint is also vague
and stated in general terms.
Who can file a written statement
 A written statement, as stated earlier, is meant to be filed by the
defendant.
 However, the defendant may file it through an agent authorised by
him. It cannot be filed by someone who is not a party to the
dispute.
 In the case of multiple defendants, there can be a common written
statement signed by all, or at least verified by one of the defendants
who is familiar with the facts.

When should a written statement be filed

 Order VIII Rule 1 lays down the period within which the defendant
must file a written statement.
 The written statement should be filed by the defendant within thirty
days from the day when the summons was served to him.
 However, this period can be extended up to ninety days from the
date of service of summons by the court for reasons to be recorded
in writing.
 In the case of commercial disputes, the written statement must be
filed within thirty days from the date of service of summons.
However, it can be extended by the court up to one hundred and
twenty days from the date of service of summons for reasons to be
recorded in writing, for which the defendant must pay the costs that
the court thinks are appropriate. The expiry of this period results in
the forfeiture of the right of filing a written statement.
 If the defendant does not file the written statement within the
prescribed time period, he must file it as early as possible, along
with a delay application, praying for the condonation of delay in
filing the written statement. However, there has to be a sufficient
cause that is outside the control of the party. If the reason satisfies
the court, the court shall accept the application and proceed, and if
not, the court shall reject it.
 In the case of Mohammed Yusuf v. Faij Mohammad and Ors. (2009),
the defendant had filed a written statement after three years,
praying for the condonation of delay. The application was rejected.
The Allahabad High Court allowed a writ petition filed by the
defendant, that challenged the rejection. The Supreme Court held
that the High Court must not have interfered as there was no failure
of justice or error on the face of the record. The Court held that the
grant of time beyond the thirty-day period is not automatic. While
granting the extension, the court must be cautious and examine
whether there are sufficient reasons that call for the extension. The
 extension shall not be granted indiscriminately as it would defeat
justice.
 In the case of Christian Broadcasting Network Inc. v. CBN News (P)
Ltd. (2018), the Delhi High Court held that the Court can invoke
Order VIII Rule 10 of CPC if the defendant fails to file a written
statement. In this case, the plaintiff was involved in broadcasting
services and came across the defendant’s YouTube channel ‘CBN
NEWS’, which was identical to the plaintiff’s trademark. A cease and
desist notice was served on the defendant but to no avail. So, the
plaintiff filed a suit. The defendant had failed to file a written
statement. The plaintiff prayed for a temporary injunction and the
Court passed it.
 Another case is Nagaratnam Pillai v. Kamlathammal A (1945), here,
there was a question as to whether Order VIII Rule 10 applies to
Order VIII Rule 9. Rule 9 states that the parties cannot file further
pleadings after filing a written statement, other than by way of
defense to set-off or counterclaim. It also states that the Court may
at any time require a written statement or additional written
statement from any of the parties and fix a time that is not beyond
thirty days for presenting the same. The Court decided that it
relates to Rule 9.
Now, let us get to the topic. What does Order VIII Rule 10 of the CPC say?

Consequences of not filing a written

statement
As per Order VIII Rule 10, if any person who is required to file a written
statement does not do so within the time period prescribed or permitted by
the court, the court shall pronounce the judgement against him or issue an
order, and a decree shall be drawn up on the pronouncement of the
judgement. The time period prescribed for the filing of the written statement
in Rule 1 shall not be extended by the court.

The court has two alternatives when a written statement has not been filed:

1. Granting of adjournment: The court can grant an adjournment to

the defendant. This grants more time to the defendant to file a
written statement. However, no more than three adjournments can
be given to a party to the suit as per Order VII Rule 1 of the Code.
If the party still fails to file the written statement, the court can
move on to the next alternative, which is the ex parte decree.
2. Pass an ex parte decree: The court can pass an ex parte decree
against the defendant. This is not mandatory but the court has the
discretion to do so. This is usually avoided by the court in the first
instance. However, if the party fails to file a written statement in
 spite of many adjournments, the court can resort to passing an ex
parte decree against the defendant.
Now that we know the consequences of not filing the written statement
during the prescribed time period, let us look at the provisions of appeal and
revision.

Appeal and revision

Order VIII Rule 10 provides that a decree will be drawn upon such
judgement. Following that, an appeal would lie under Section 96. As
per Section 115, the High Court can adjudicate upon such a decree through
revision. When a decree is appealable, the aggrieved party cannot apply for
revision.

Now, let us look at the inherent powers of the court with regard to the same.

Inherent powers of the court

Section 151 of the CPC lays down the inherent powers of the court. As per
this Section, no provision in the Code acts as a restriction on the power of
the court to issue an order in the interest of justice or for the purpose of
preventing the abuse of the power of the court.

This Section acts as a limitation to Order VIII Rule 10 of the Code. This
provision allows the courts to extend the period of limitation for filing the
written statement. However, this is only allowed in exceptional situations
that arise from causes outside the control of the defendant. This power
cannot be used in ordinary cases.

Now that we are familiar with the provisions of the code, let us look at some
important decisions by the judiciary regarding the same matter.

Case laws

Atcom Technologies Ltd. v. Y.A Chunawala and Co.

(2018)

Facts
An appeal was filed by the defendant in the Supreme Court against an order
made by the Delhi High Court in a revision petition that struck off his right to
file a written statement as he had repeatedly delayed the filing in the civil
court. The dispute was between two brothers on an agreement to sell off
their ancestral property. The ancestral property consisted of a building,
where the ground floor was owned by the respondent or the plaintiff, and the
first floor was owned by the appellant or the defendant. The brothers entered
into an agreement of sale where the appellant or the defendant agreed to
sell the first floor to the respondent or the plaintiff. The plaintiff later filed a
suit for specific performance of the agreement, claiming that the respondent
was attempting to sell the subject matter of the agreement to third parties.
Due to the defendant’s failure to file the written statement, the civil court
granted several extensions, to the point where it exceeded 90 days. Before
appealing to the Supreme Court, the appellant had first approached the Delhi
High Court through revision. The Court dismissed the petition by relying on
the judgement in Oku Tech Pvt. Ltd. v. Sangeet Agarwal and Ors.
(2016), which laid down that courts do not have the discretion to grant an
extension beyond 120 days.

Contention of the appellant

1. The High Court’s decision was erroneous as the Oku Tech
judgement is only applicable in the case of commercial disputes. The
case here is of non-commercial nature.
2. The time period prescribed under Order VIII Rule 1 is merely
procedural and directory. The appellant also claimed that the same
was decided by the Supreme Court in cases such as Salem Advocate
Bar Association, T.N. v. Union of India (2005). The time period of
90 days can be extended by the court using its discretionary powers
in exceptional cases.
3. The written statement could not be filed due to the lapse on part of
his counsel and that he had appeared before the civil court on all
the dates of the hearing.

Contention of the respondent

The defendant was granted several chances to file the written statement. The
statutory period of 90 days cannot be extended.

Issues
1. Is the suit of commercial nature?
2. Can the statutory period of 90 days be extended?
3. Is the time period prescribed directory in nature?
4. Can the appellant be allowed to file the written statement?
Judgement
In this case, the Supreme Court held that in some very exceptional cases of
non-commercial nature, the court can extend the period for filing a written
statement beyond ninety days. Hence, the prescribed period is a “directory”
and not mandatory. The defendant has to prove that there is a strong case
that supports such an extension. The court observed that the suit is of a non-
commercial nature. The court dismissed the appeal by stating that the
appellant was given numerous opportunities but still failed to file the written
statement.

Rajendrabhai Maganbhai Koli v. Shantaben

Maganbhai Koli (2022)

Facts
The applicant applied for the writ of certiorari against an order passed by the
Additional Civil Judge to be allowed to file a written statement. The applicant
had been given several opportunities but failed to make an appearance and
the court proceeded with the matter. The order was passed as the extension
would not be given beyond 120 days.

Contentions of the applicant

1. The judgement in the case of Salem Advocate Bar Association, Tamil
Nadu v. Union of India (2005) was relied upon by the applicant to
contend that the 120-day period is merely a directory and not
mandatory
2. The right of the applicant to file the written statement does not
affect the right of the plaintiff in the case. Hence, allowing the
defendant to file the written statement does not jeopardise the
plaintiff’s position, but disallowing the defendant from filing the
written statement would certainly jeopardise the defendant’s
position.
3. The applicant also stated that he is willing to pay the necessary
costs if any.

Issues
1. Is the time period prescribed for filing the written statement
mandatory or directory?
2. Can the applicant be allowed to file the written statement?
Judgement
1. In this case, the Gujarat High Court held the view that the ninety-
day limit for filing a written statement in non-commercial disputes is
directory in nature and not mandatory. The Court stated that it
must be used sparingly and not in ordinary cases.
2. The Court, after examining the merits and circumstances of the
case, held that the writ petition is allowed and that the applicant is
allowed to file the written statement.
3. The Court made such an order while taking the pandemic situation
into consideration.
4. The Court, however, ordered the applicant to pay an exemplary cost
of Rs. 10,000.
5. The Court also clarified that the order passed by it will not act as a
precedent as it was made with respect to the facts and
circumstances of the case.

Conclusion
Order VIII Rule 10 of the Code essentially lay down that if the defendant
does not file a written statement within the time and manner prescribed by
the provisions in the Order, the court shall pass a judgement against him.
The provision also makes it clear that the court cannot extend the one-
hundred and twenty days duration prescribed under Rule 1 under any
circumstances for commercial disputes. The question as to the nature of Rule
10 was answered in various court decisions. For suits involving non-
commercial subject matter, Rule 10 is merely a directory provision and not
mandatory. That is, in exceptional circumstances, the time period prescribed
in Rule 1 can be extended. Such an extension is made by invoking the
inherent powers of the court as given in Section 151 of the Code. The
extension must be granted in the interest of justice. However, as the rule is
mandatory for commercial disputes, such an extension cannot be given in
any circumstances.

Cpc Notes :- Rishikesh R Morale