CIVIL PROCEDURE CODE II

3rd Year BA LLB (Hons), 8th Trimester, 2020

Course Teacher: Dr. Nanda Kishore

Teaching Seminar Student: Yet to be announced

COURSE DESCRIPTION

This is a mandatory course as per Bar Council Regulations and this course has
been designed as follows.

In CPC 1 we explored several of the conceptual themes arising within civil

procedure such as the following:

(a) The difference between substantive law and procedural law.

(b) The difference between questions of law and questions of fact.
(c) The goals of procedural systems.
(d) The factors that influence procedural systems.
(e) How procedural systems can be categorised.
(f) The adversarial – inquisitorial dichotomy.
(g) Comparative civil procedure and its benefits.
(h) What does procedure have to do with Justice?
(i) The importance of Procedure.
(j) The History of Indian Civil Procedure.
(k) Peculiar problems with Indian Civil Procedure and the Indian Civil Justice
System.

Students explored these themes further in their projects which offered both
practical and theoretical topics. In CPC II, we will be re-visiting particularly topics
(j) and (k) above and students will again be welcome to explore these conceptual
themes in their projects. Further, we will complete our study of the Code itself. We
will cover the remainder of Sections 1 to 35 B and Orders 1 to 20A –the entire trial
court procedure from the stage of filing of the plaint, as the suit proceeds from
stage to stage, until the judgment is pronounced by the trial court and the decree
is written. Thereupon key portions of the remainder of the Code will be covered in
particular: Appeals, Review, Revision, Reference and Execution.

The materials we rely upon are primarily the statutes concerned namely the Code
of Civil Procedure, 1908, and related statutes such as the Limitation Act, 1963. We
also rely extensively on cases decided by the Supreme Court and some cases of the

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High Courts.

Students will be furnished copies of the Handouts (as was done in CPC1 wherein
Handouts were furnished) at the start of the course which will outline in detail the
topics covered, the relevant statutory provisions, the cases to be discussed and the
readings for each topic. For each class, students will be expected to read the cases
mentioned in the Handouts. Additional reading will also be indicated, usually the
relevant Chapters from Takwani’s Textbook on Civil Procedure.

In a typical class, the Course Teacher will first outline the broad principles under
the topic being studied and then the class will read the statutory provisions. We
then move on to case-law that illuminates the principles underlying the statutory
rules. For each case to be discussed in class, 5 students will be identified before-
hand and will be required to lead the discussion on that case. The other students
will also be expected to have read the case and actively participate in classroom
discussion. Students who have worked or are working on a project that involves
the topic under consideration might be required to make a presentation in class-
this will help the class explore several tangential and intersecting themes. For
example, whilst studying Discovery, a student who has made a project on
Discovery in the US might make a presentation upon the said topic. Socratic
discussion is welcomed. There will be Mock-Tests wherein students will be
expected to solve practical-type questions.

COURSE OBJECTIVE(S):

From the rules of civil procedure to the principles of civil procedure

The Law of Civil Procedure in India is the legacy of some of the finest English
jurists of their time who, working with the pre-existing English common law on the
subject, strove to create comprehensive and precise codes laying down the
procedure to be followed for the conduct of civil cases. Their work was painstaking,
pioneering and infused with the highest degree of scholarship and sophistication.

We Indians have always been in awe of the Indian Evidence Act, 1872, and the
Code of Civil Procedure, 1908, which have to be read together to understand civil
procedure. The Law Commission Reports are full of praise for these enactments. In

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spite of several reports over the years that seek to review and effect changes to the
existing system of civil procedure, it is recognised that the Evidence Act is “a
commendable piece of legislation”, the Act being seen as “an embodiment of all
that is truly excellent.”The CPC is also similarly admired. The Law Commissions
have always felt that “the ship is well-designed, fundamentally sound…”The only
serious challenges to the system that the Law Commissions have considered over
the years have been with regard to the viability of resorting to an indigeneous
system of procedure or jumping over to an inquisitorial system as existing in
Continental Europe- both of which have been rejected as impracticable.

Yet, in the face of the constant crisis of the Civil Justice System caused by arrears
and delays, there is the recurrent urge to review our procedures and somehow find
ways of making the system more effective. Whilst several changes have been
recommended and effected over the years, the “ship” remains fundamentally the
same and we are forced to conclude that the problem is one of infrastructure, not
procedure.

But even though the ship may be fundamentally sound, we may be at fault for not
running it properly. The provisions of the Codes are “insufficiently theorised” and
we are yet far away from arriving at the Principles of Indian Civil Procedure as
opposed to a mass of rules and cases that have not been adequately reconciled.
The great disadvantage of codification is that very often, the principles and
purposes behind the black-letter rules are not expressly stated, and are further
difficult to arrive at with large and complex statutes like the CPC and the Evidence
Act. Thus, when courts are called upon to apply the rules in a given case, or when
litigants/lawyers wish to predict the outcomes of particular actions based on the
rules, the interpretive issues that arise are not adequately resolved, leading to
improper/insufficient application/understanding of the rules and consequently,
lack of predictability and uncertainty. Only when a clear set of principles
underlying the Codes and the decisions rendered thereunder are articulated,
proper application of the procedural law can take place. This lack of clarity, and
the insufficient and incorrect application of the Codes, add to delays in dispute
resolution, and also affects the quality of dispute resolution that the Civil Justice
System delivers.

In addition to “micro theorisation” as discussed above, i.e., arriving at a set of

principles that best explain the rules and decided cases under them, India would
benefit greatly from taking into account the vibrant discourse being conducted by
procedural law scholars around the world, wherein Procedure is being theorised at
a “macro” level. A sizable body of literature is developing on the “macro” analysis of
procedural systems- wherein broader questions as to procedural systems as a
whole are being considered. Countries have the similar agenda of designing
procedural systems that best achieve the goals of the system - such as accurate
resolution of disputes - with the minimum amount of time, money and vexation.
Thus, the discussion that is conducted in one country can easily be borrowed by
others, and this is particularly true of countries that follow the Anglo-American
model of civil procedure. On this count also, theorisation and scholarship in India

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is lacking.

Procedural law can be difficult. There is a huge mass of technical rules that need
to be mastered. The object and purpose of the rules are very often not obvious
from a bare reading of the rules and the rules are often drafted in archaic
language. The rules seem counter-intuitive at times. The rules are inter-connected
in complex ways and cannot be easily sub-divided. The CPC has to be read with
the Evidence Act, as well as other procedural codes relating to limitation, court-
fees, specific relief, etc. Crucially, comprehensive text-books that explain in a
simple and easily understandable manner all the rules of the CPC and Evidence
Act are easily found. Sarkar’s Code of Civil Procedure continues to be revised and
reprinted and is a standard reference book for practitioners and students. The CPC
is reproduced with voluminous case-law under each section, primarily from the
High Courts. The cases are not reconciled, and no principles are arrived at that
clearly explain the section or any interpretive issues that arise therefrom. Driven
by despair, some students may rush to get Mulla’sKey to Indian Practice or CK
Thakker’sCivil Procedure – both elegant well-written books- but too thin and
perhaps not comprehensive enough – only basic issues under each topic are
explained without going in too deep.

In order to resolve interpretive issues that arise within the Codes, one inevitably
has to study the provision, the surrounding context and the statute as a whole,
and try to glean therefrom the purpose or rationale of the rule. Once you get to the
purposes of the rule, then applying it becomes much easier. With the common-law,
every principle is based on a judgment or series of judgments and therefore it is
not difficult to get to underlying rationales and purposes-since this would be
articulated in the judgment. With statutes, very often the purpose and rationale for
rules will not be obvious from a plain reading of the rule. This is especially true of
the Evidence Act and CPC which often contains rules the reasons for which are not
obvious. What compounds the problem even more is the sheer volume and
complexity of the procedural codes.

Ronald Dworkin the famous “jurisprude”, argues that the law is not just a set of
rules- the law is the set of principles that underlie the entire body of rules and the
precedents decided under them. In order to really know your law, you need to
know not just your rules and cases, but the principles which underlie them.
Considered from this perspective, it is clear that we are still far away from arriving
at the Principles of Indian Civil Procedure. Any textbook on the CPC will evidence
the fact that we are still straddled with a mass of rules and cases. Many areas of
the CPC and Evidence Act are yet to attain conceptual clarity.

After this rather elaborate warning, we come to the objects of this course.
Primarily, it is to ensure that students have attained a good deal of familiarity and
understanding of the black-letter rules of Indian civil procedure (“the trees”).
Students are to be adept at applying the basic rules of civil procedure to draft,
analyse and argue cases at trial and appellate levels. Secondly, it is also to gain a
sense of the underlying concepts and principles (“the forest”) to sharpen our
understanding of the rules and also so that we may appreciate the complexity and

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design of procedural systems from a broader perspective. Such an approach, it is
hoped, would bring greater clarity and make the subject more interesting.

Teaching Method

Students will be required to read the cases and materials indicated in the
Handouts as per the suggestions given therein and may also wish to read the
“Additional Reading” indicated before attending the classes. Civil Procedure by
C.K. Takwani, 8th Edition, will be the guiding text-book for the course but will be
mostly used as “Additional Reading”.

The End-of-Trimester examinations will permit the students to carry into the
examination hall the following:

1. Bare Acts such as the CPC, Evidence Act, Limitation Act, etc.
2. Handwritten classroom notes signed by the teacher.
NOTE: Course Handouts given by the teacher will not be permitted in the exam
hall.

NOTE: If it is an online exam however, the rules mandated by the University will
apply, to be announced at a later stage.

EVALUATION PATTERN

Project 30 marks

Viva-Voce 10 marks

End of Trimester Exam 60 marks

TOTAL 100
marks

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 - Don’t copy someone else’s notes, make your own notes x D
- Be very careful about the facts of the case, mention nuanced facts +
ratio
- Don’t mention cases unnecessarily when it is not required – answer
each question specifically. No extra marks for mentioning cases where
not required.
- Don’t answer questions in a way that you have to refer to out-of-
portions. He will only ask questions from what he’s taught, so that’s a
clue about what topic you’re expected to write about.

BASIC READINGS

(Kindly note that even though these two books are mentioned as basic
reading, they are in fact to be used for additional reading as indicated in the
modules- basic readings for the course are the cases indicated under each
topic and the relevant portions from the handout)

1. Civil Procedure Code by Justice C.K. Thakker (C.K. Takwani) 8 th Edition

(Students Edition).
2. Mulla’s The Key to Indian Practice, 11th Edition.

Module 1

In this module we will complete basic trial procedure from Appearance of Parties to
Judgment and Decree. Particular emphasis will be laid upon the fact-find process,
i.e., the process by which evidence is detected, collected and recorded before the
court.

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PLEADINGS

● The Cardinal Rules emanating from Order 6 Rule 2

● Order VI relates to Pleadings generally; Order VII relates to Plaint and

Order VIII relates to Written Statement.
● What is “Pleading”? Order 6 Rule 1: “Pleading shall mean Plaint or Written
Statement”. Is a rejoinder/reply included?Why not?
● The cardinal principles of pleadings: Order 6 Rule 2: Pleadings to state
material facts and not evidence; Pleadings should contain all material facts;
Pleadings should not contain law; nor should it contain argumentation.
Further, pleadings should contain only material facts, not all facts.
● Why would it be unwise to include argumentation in pleadings? Explain
the phrase: “pleadings do not argue- lawyers do!”
● What would be the effect of the failure to include all material facts in
the Plaint?
(1)No cause of action would be seen to arise at all. Material facts are all
facts upon which the Plaintiff’s cause of action or the defendant’s
defense depends. The question whether a particular fact is material or
not depends upon the facts and circumstances of each case.
(2) Further, the party in question would be guilty of suppression of
material facts, an aspect he would have to answer later in the course of
the trial when his suppression comes to light.
(3)Also, no amount of evidence can be looked into upon a plea which was
never raised.
● What is the effect of a false statement in the pleading? The pleadings
which are verified by the party and are further supported by affidavit, if
found to be false to the knowledge of the party concerned, would expose the
party to the risk of the charge of perjury.
● Pleadings not to contain the evidence by which the pleadings are to be
proved. Classic case of Barrodaile vs Hunter (1845) 5 Man and Gr 639.
● What is the exception carved out by the Supreme Court to the rule in Order
6 Rule 2? Even though evidence must be based on pleadings and the
judgment must be based on the pleadings set out- where from a perusal of
the circumstances of the case it is apparent that the parties knew the case
they had to meet, and actually led evidence thereon, then the objection that
a particular fact was not pleaded will not be successful. Thus, a pedantic
approach will not be adopted. Ram Swarup Gupta vs Bishun Narain Inter
College (1987) 2 SCC 555; Bhagwati Prasad vs Chandramaul AIR 1966
SC 735.
● Note the special rules contained in Order 6 Rules 6 to 13 which could be
said to be extensions/illustrations or exceptions to the general rule

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 contained in Order 6 Rule 2.

● What is the level of specificity necessary in pleadings? The pleadings

should be specific enough to give the opposite party adequate notice of the
case that she must meet. Order 6 Rule 2 read with Order 6 Rule 4: in all
cases in which the party pleading relies upon misrepresentation, fraud,
breach of trust, willful default or undue influence, particulars shall be
stated in the pleadings. “Particulars are details in support of material facts
pleaded by the party. They amplify, refine and embellish material facts by
giving distinctive touch to the basic contours of a picture already drawn so
as to make it full, more clear and more informative.” Virender Nath
Gautam vs Satpal Singh [2007 (3) SCC 617].
Material facts are facts relied upon the party which are crucial to his
claim. They are primary or basic facts which must be pleaded by the
party to prove his cause of action or defence. Particular are details in
support of material facts provided by the party. They amplify, embellish
or distinguish some facts to provide a more wholesome picture. Diff bw
evidence and fact in issue. HC mixed up the two in this case, because
they said that he should’ve mentioned some evidence in his plaint, but
they are neither material facts not particulars.

● Can pleadings contain inconsistent pleas? Order 6 Rule 7. Inconsistent

pleas are permissible :G. Nagamma vs Siromanamma [(1996) 2 SCC 25];
Srinivas Ram Kumar vs Mahabir Prasad [(AIR 1951 SC 177)] and Praful
Manohar Rele vs KN Ghosalkar [(2014) 11 SCC 316]. Per contra : Steel
Authority of India Limited vs Union of India [(2006) 12 SCC 233]; Sarva
Shramik Sangh vs IOC [(2009) 11 SCC 609]. What is the difference
between having inconsistent pleas and raising alternative reliefs ? (Order 6
Rule 7 and Order 7 Rule 7).

● What are the principles applicable to amendment of pleadings? Order 6

Rule 17.

Usually amendment allowed before trial, after trial need leave of the court
and most likely court will impose costs.
Pleading should be supported by affidavits, should be signed.
Court can strike down scandalous pleadings, which prejudice trial, which
embarrass the trial, etc.

● By virtue of the proviso to Order 6 Rule 17 applications for amendment after

trial has commenced have to establish due diligence.
● It is the discretion of the court to be exercised judiciously.

● The general principle is that all amendments should be allowed except those
which cause injury that cannot be compensated with costs.
● Prejudice caused to the opposite side is the important factor- whether the
prejudice can be compensated through costs.

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● Amendments which are necessary to determine the real questions in
controversy between the parties should be allowed.
● M/s Ganesh Trading Co vs Moji Ram [(1978)2 SCC 91] –amendment
application whether amounted to altering the cause of action and changing
the very identity of the Plaintiff.
● BK Narayana Pillai vs Parameswaran Pillai [2000(1) SCC 712]- liberal
approach to amendments especially when opposite side can be suitably
compensated through costs, advocated. Inconsistent and contradictory
allegations or mutually destructive allegations of facts should not be allowed
by way of amendments.
● Pirgonda Hongonda Patil vs Kalgonda Shidgonda Patil [AIR 1957 SC
363] – where Plaintiff seeks to amend the Plaint by setting up a fresh claim
in respect of a cause of action which since the institution of the suit had
become barred by limitation, the amendment must be refused. To allow it
would be to cause the Defendant an injury which could not be compensated
in costs.

● What are the formalities to be complied with pleadings? Order 6 Rule

14- Pleading to be signed by the party and the pleader. Order 6 Rule 14A-
Address for service of notice shall be furnished by each party. Order 6 Rule
15- Pleading shall be verified and shall also be supported by affidavit.

● Can the court interfere with the pleadings ? Order 6 Rule 16- power to
order striking out or amendment of pleadings that are unnecessary,
scandalous, which prejudice or embarrass the fair trial or which abuse the
process of court.

● What are the particulars to be contained in the Plaint ? Order VII Rules 1
to 8. Under Order 7 Rule 2, in money suits, where the Plaintiff seeks
recovery of money the Plaint shall precisely state the amount claimed except
if mesne profits, etc., are sought, in which case the Plaint shall state the
approximate value. Under Order 7 Rule 3, where the subject-matter of the
suit is immovable property, the Plaint shall contain a description of the
property sufficient to identify it. Relief shall be specifically stated (Order 7
Rule 7).

● Return and Rejection of Plaint

● Return of Plaint – Order 7 Rules 10, 10A, 10B.

● To be adopted where the court finds it does not have the jurisdiction to
entertain the dispute; even an appellate or revisional court may exercise the
power.
● The judge returning the Plaint should make endorsements on it regarding
the date of presentation, the date of return, the name of the party

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 presenting it and the reasons for returning it.
● The order returning the Plaint is appealable under Order 43 Rule 1(a) except
where the procedure under Rule 10A has been followed fixing a date for
appearance in the Court where Plaint is to be filed after its return.
● There is no continuation of the initial suit filed and the suit must be
deemed to have been filed on the date of re-presentation after return of
the Plaint. However, the Plaintiff may be able to take advantage of section
14 of the Limitation Act, 1908, and may also seek adjustment of court fees.
ONGC Limited vs Modern Construction Company [2014(1) SCC 648].
Harshad Chimanlal Modi vs DLF Universal Ltd [2006(1) SCC 364].

● Rejection of Plaint: Order 6 Rules 11,12,13

● The Plaint shall be rejected where any of the grounds mentioned in clauses
(a) to (f) of Order 6 Rule 11 are satisfied.
● The judge upon rejecting the Plaint is required to pass an order with
reasons (Rule 12).
● An order rejecting the Plaint is deemed a “decree” as per section 2(2) and is
thus appealable under section 96.
● A fresh suit is also not barred after rejection of Plaint. (Rule 13).

● P.V. Gururaj Reddy vs P. Neeradha Reddy [2015 (8) SCC 331]- Rejection
of Plaint is a drastic power to be exercised to terminate a civil action at the
threshold. At the stage of rejection of Plaint, averments in written statement,
etc., are all immaterial. It is only the averments in the Plaint that are
relevant to determine whether the Plaint should be rejected on the ground of
not disclosing a cause of action or suit being barred by any law.
● Balasaria Construction (P) Ltd vs Hanuman Seva Trust [2006 (5) SCC
658]- Plaint can be rejected under Order 7 Rule 11 (d) as being barred by
limitation only if it is ex facie barred from a reading of the Plaint. If
limitation is a mixed question of law and fact in a given case, Order 7 Rule
11 cannot be invoked.
● M/s Commercial Aviation and Travel Co vs Vimla Pannalal [1998 (3)
SCC 423]- only if positive objective standards are available to determine the
correct valuation, rejection can be done under Order 7 Rule 11(b).
● Fresh suit can be fuled under order 6, rule 13.

● Filing of written statement within time-limits: Order 8 Rule 1

Within 30 days from the date of service of summons on the Defendant,
the Defendant shall present a written statement of his defense;
extendable upto 90 days from the date of service of summons. In
Kailash vs Nankhu [2005(4) SCC 480] held however that Order 8 Rule
1 is not mandatory but directory. In exceptional cases, court could
permit filing even after lapse of 90 days.

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 But seems like it can be interpreted that you have a right to file it till 90
days.

Kailash v. Nanku
Decision of 3 Judge SC. Elections to UP Legis council in question.
Appellant was declared duly elected. Respondent filed an election
petition under S.80 of RPA. He was the plaintiff. Appellant-defendant
served summons on 6.4.2004, due to various problems, namely that the
HC was closed for a while, he sought several adjournments because
nephew passed away, clerk took a couple of days to file it. Written
statement filed on 8.7.2004, after 90 days – 92 days. Along with the
written statement, application by app-def seeking condonation of delay –
HC rejected and said as per order 8 rule 1 file within 30 days, max
leeway is only 90 days after service of summons. Now 92 days cannot be
condoned. Your app is rejected and written statement not considered.
Defendant appealed the HC decision and went to SC. SC had to consider
whether order 8 rule 1 was mandatory or directory. SC said its
procedural, not a substantive law. It does not deal with the power of the
court to take the written statement on record – only casts a duty on the
person to file. No negative consequences if he doesn’t file within 90 days.
Procedure is the handmaiden of justice. In adversarial system, max opp
to all parties to take part in the proceedings. So in exception
circumstances, court may exceed the date even beyond 90 days to file a
written statement.
Set aside HC order and permitted him to file written statements.

Amendment in commercial courts act. In high value cases, strict

application of rule.

● What is the effect of not filing a written statement when required or as

fixed by the court?
● Order 8 Rule 5: the court is empowered to pass judgment against the
Defendant on the basis of the facts contained in the Plaint or make such
other order as it thinks fit except as against a person under a disability. But
the court may, in its discretion, require any of the facts to be proved by the
Plaintiff.
● Balraj Taneja vs Sunil Madan [1999(8)SCC 396]- court not to act blindly
in decreeing the suit merely because written statement not filed. Should still
see whether the Plaintiff has a good case. Section 58 Indian Evidence Act
analogous.
The plaintiff filed a suit in the delhi hc against defendents for
specific performance. Suits filed in may 1996, defs appeared in
sept 1996. Did not file WS even after several chances. Court
decreed in favour of plaintiff without trial, without requiring them
to prove anything. That point, whether the suit should have been
decreed without asking plaintiff to prove the case – appealed to
SC. SC noted that order 8 rule 1, 5, 9, 10 – court can make any
order in relation to the suit as it deems fit. Rule 5 sub rule 2, 10
same aspects and same themes. Even though court has discretion

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 to decree the suit simply because the written statement hasn’t
been filed, but still the facts may be required to be proved under
s.58 of IEA. Court ‘may’ decree the suit. Court shouldn’t act
blindly. Proof = read the plaint + supporting docs/evidence.
Modula India vs Kamakshya Singh Deo 1989 AIR 162 - 1988
judgement says that defendant cannot set up a new fact but can
cross examine plaintiff.

● Order 8, Rule 9: Court can direct parties to file a written statement

within 30 days – additional statements. Court can order someone to
do the same thing as order 8, rule 1.

● If you want to file a reply to the written statement, not a matter of

right. Need leave of the court. You can reply to that also, provided
court grants leave.

● Order 8, rule 10 – when party fails to present written statement,

judgement can be passed against him. No court can pass order to
extend time.
________________________________________________________________________________

● New facts must be specially pleaded in written statement – Order 8

Rule 2: which show that the suit is not maintainable, or that the
transaction is either void or voidable in point of law, and all such grounds of
defence which if not raised, would be likely to take the opposite party by
surprise or would raise issues of fact not arising out of the Plaint, etc.
Shri Udhav Singh vs Madhav Rao Scindia [1977(1)SCC511]: a pure
question of law need not be pleaded in the written statement.
Pleadings must contain only material facts, not all facts, law or evidence.

Facts:
Madhav Rao Scindia, part of Jan Sangh, declared elected over his rival
Jadhav of Congress Party in the Lok Sabha election. Udhav Singh, an
elector, filed a petition in the HC challenging this election. Allegation that
agents of madhav scindia, namely pratap singh threatened people not to
vote – mentioned in the written statement. Main allegations: 1. Not in
accordance with the rep of people act – spent more money on
campaigning. 2. He through his agents did corrupt practices. Plaint
mentioned ‘on or before, a village worker was threatened by the
respondent and threatened not to vote’.
Defendant had to file a written statement and he simply said that the
plaint is vague and material facts are not mentioned. After the plaint was
filed, process was issued to the respondent. He engaged a counsel –
written statement was filed, all allegations of corruption and threats
were denied. Issues were framed.

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 Then, at a later stage, after 14 months from the date of service of notice
and after evidence led in part and written statement had been filed,
respondent filed an application saying that under s.82(b) of RPA, the
petition was defective. Because s.82(b) requires that petitioner shall join
as parties to the petition any other party against whom allegations of
corrupt practices have been made – here pratap singh. So defendant said
here he should have been joined. So as per S.86 of RPA HC dismissed it
because it didn’t comply w 82.
Election petitioner preferred an SLP before the SC. The point came up
that the defendant had not raised the point about S.82(b) in the written
statement – it was obligatory to do so. Order 8 rule 2 says all grounds of
defence, all questions of fact, which shows that the suit is bad should be
raised in the written statement. This is not a question of law, it doesn’t
need evidence and all - raise all factual pleas which are defences to the
plaint, but don’t raise purely legal pleas. In this case, S.82(b) and all is a
legal point – so no need to raise it. If you don’t raise it, then it will be
considered waived.

● Denials in written statement

● The Defendant should not deny generally the grounds alleged by the
Plaintiff, but must deal specifically with each allegation of fact that he does
not admit. Order 8 Rule 3.
● Rule of traversal – address each and every fact. Either admit the fact, deny
the fact, or claim ignorance. Must write the full sentence ‘for eg, defendant
denies the content of offering a bribe on 10 th july 2020. Defendant has never
offered a bribe in his life.” You cant simply say that I deny all averments in
paragraph 3. As you deny it, you can provide an alibi and put up a defence
also. “the defendant states that he was in a different city on 10th july 2020.”
But don’t lie on oath – you’ll be liable for perjury and under the
IPC also.

● However, this principle does not apply to damages, which are always
deemed to be denied by a line of English cases- Millington vs Loring
(1880) 6 QBD 190; Wood vs Durham (1888) 21 QBD 501.
● Evasive denials are improper. Order 8 Rule 4. Classic case of Tildesley vs
Harper [1878 (10) CD 393].
● Order 8 Rule 5: Every allegation of fact in the Plaint if not denied
specifically or by necessary implication, or stated to be not admitted shall be
taken to be admitted except as against a person under disability. However,
the Court can nonetheless require any fact so admitted to be proved
otherwise than by such admission.
● Badat and Co vs East India Trading Co [AIR 1964 SC 538]: Order 8 Rules
3, 4 and 5 form an integrated code dealing with the manner in which
allegations of fact in the Plaint should be traversed and the legal
consequences flowing from non-compliance.

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● Documents to be produced along with the pleadings

● Order 7 Rule 14
[14. Production of document on which plaintiff sues or relies.—(1)
Where a plaintiff sues upon a
document or relies upon document in his possession or power in
support of his claim, he shall enter such
documents in a list, and shall produce it in Court when the plaint
is presented by him and shall, at the
same time deliver the document and a copy thereof, to be filed
with the plaint.
(2) Where any such document is not in the possession or power of
the plaintiff, he shall, wherever
possible, state in whose possession or power it is.
5[(3) A document which ought to be produced in Court by the
plaintiff when the plaint is presented, or
to be entered in the list to be added or annexed to the plaint but is
not produced or entered accordingly,
shall not, without the leave of the Court, be received in evidence
on his behalf at the hearing of the suit.]
(4) Nothing in this rule shall apply to document produced for the
cross-examination of the plaintiffs
witnesses, or handed over to a witness merely to refresh his
memory.]

● and Order 8 Rule 1A:

1A. Duty of defendant to produce documents upon which relief is
claimed or relied upon by him.—(1)
Where the defendant bases his defence upon a document or relies
upon any document in his possession or power, in
support of his defence or claim for set-off or counter-claim, he
shall enter such document in a list, and shall produce it in
Court when the written statement is presented by him and shall,
at the same time, deliver the document and a copy
thereof, to be filed with the written statement.
(2) Where any such document is not in the possession or power of
the defendant, he shall, wherever possible,
state in whose possession or power it is.
4[(3) A document which ought to be produced in Court by the
defendant under this rule, but, is not so produced
shall not, without the leave of the Court, be received in evidence
on his behalf at the hearing of the suit.]
(4) Nothing in this rule shall apply to documents—
(a) produced for the cross-examination of the plaintiff's witnesses,
or
(b) handed over to a witness merely to refresh his memory.]

● documents relied upon or upon which sued, which are in the possession or
power of theparty shall be entered in a list and shall be produced in court

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 along with the Plaint and Written Statement along with a copy. If this rule is
not complied with, such documents cannot be received in evidence at the
trial, except if court’s leave is taken. However, this rule does not apply to a
document produced merely to cross-examine the opposite party’s witnesses
or to refresh the memory of one’s own witnesses. (Note special rules with
regard to lost negotiable instruments and shop-books- Order 7 Rules 16
and 17).
● Do the documents produced along with the Plaint and Written Statement
become a part of the record of the case?
● You must [produce all docs in your possession or power, enter it in a list
and when the written statement is presented, you must deliver these
documents also – to prove whatever you’re saying. Append the originals and
submit a copy also to be filed.
● After hearings, court will frame issues, and then post it for trial –
evidentiary phase.
● The real rationale for the rule is preventing fraud, manipulation and
tampering of documents.
● If a document is not within your custody, please state within whose custody
that document is.
● You can take the leave of the court to produce a document at a later stage
as well.
● Nothing in this rule shall apply for documents produced for cross-exam, or
handed over to a witness for the purpose of refreshing his memory.
Otherwise, giving documents beforehand for cross examination could lead to
tutoring of witnesses – you need an element of surprise during cross exam.
● Document are not included in evidence automatically, just because to keep
it safe and prevent tampering. For evidence, you need admissibility and
reliability.

Amendment of pleadings:

1999 - removed

2002 – due diligence + amendment of pleadings

BK Narayana Pillai v. Parameshwar Pillai – any form of interpretation in a civil

proceeding should be a liberal approach, especially when other side can be
compensated.

Shiv gonad case – hyper technical approach not suitable. Procedure simply to
determine rights of the party but not to punish them. So if other party can be
compensated with costs, amendment can be allowed if made with bona fide

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intention.

1st principle: admissibility of amendment on judicial discretion. Court needs to

exercise discretion and establish that party seeking amendment should take
proper care. Due diligence means taking care by the judiciary to see if the
amendment is necessary for the case.

2nd principle: when amendment causes injury, not allowed.

3rd principle: But if it can be compensated, allowed.

4th principle: when it causes prejudice to the other party, not allowed.

5th principle: if amendment is necessary for the case and is v imp for deciding the
case, should be allowed anyway, even if cannot be compensated.

6th principle: bona fide intention is needed.

Mohinder Kumar case: court took strict approach and didn’t allow amendment due
to delay. Even if it can be compensated, time period is important.

_______________________________________________________________

Digvijay – pleading standards in America and England

Thesis: pleadings can self-regulate in the same way with or without pleading
standards

What are pleading standards? Standards under order 6, rule 2 of CPC.

Material facts, etc – most imp rules of pleadings.

Plausibility standard in the USA – from the pleading, you can reasonably draw a

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conclusion that defendant is wrong.

3 kinds of defences:

● Legal set-off

● Equitable set-off

● Counter-claim

● LEGAL SET-OFF

● Order 8 Rule 6

● Requirements to claim Legal Set-Off: - for defendant.

● (a) In a suit for recovery of money

● (b) an ascertained sum legally recoverable from the Plaintiff in some cases,
the sum that you’re claiming will be inchoate – only after accounts are
taken, you can know what the amount is. But for a promissory note where
you know the money, it is an ascertained sum.
● (c) not exceeding the pecuniary limits of the court’s jurisdiction

● (d) where both parties fill the same character as in the suit. if you are
suing him as an individual, sue him like that fully. don’t sue him as a
partner of a firm in the middle and ask for more money. the same title must
be maintained throughout the plaint and the trial.
● (e) where the defendant presents the written statement with set off at the
first hearing of the suit or afterwards (with leave of the court).
● Special provision with regard to Limitation- section 3 of the Limitation Act,
1908-claim by way of set-off deemed to be instituted on the same date as
the suit in which the set off is pleaded.
● Court Fees for set-off: a written statement pleading a set-off is chargeable in
the same manner as a Plaint.
● set off is a device where by in addition to denying the facts of the plaintiff,
putting up your defence, you also claim that a certain sum of money has to
be adjusted against the monetary claim made by the plaintiff. if you are
claiming an ascertained sum of money legally recoverable from the plaintiff,
then you can set-off the money that he’s claiming. reduce the money that
he’s claiming from you if he also owes you. you can plead it along with your
written statement and both your and plaintiff’s matters will be heard
together. it’s like a cross suit. but remember that your suit should be for the
recovery of an ascertained sum of money. you can’t ask for accounts and
then whatever money comes from there :P

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● plaintiff can file a written statement in response to your set off.

● limitation for set off is from the date you filed your suit

● EQUITABLE SET-OFF

● Even though not found in the Code, recognized by judicial decisions.

● Union of India vsKaram Chand Thapar and Bros [2004(3) SCC 504]-
equitable set-off can only be claimed if it arises from the same transaction
as the main claim of the Plaintiff; further, it cannot be claimed as a matter
of right and is discretionary.
● Jitendra Kumar Khan vs Peerless General Finance and Investment
Company Limited [ 2013 (8) SCC 769] –equitable set-off is based on the
fundamental principles of equity, justice and good conscience; it must arise
from the same transaction or ought to be so connected to the claim as to
make it inequitable for the court to allow the claim before it and drive the
Defendant to file a cross-suit.
● Plaintiffs instituted an OG suit in Cal HC against peerless for a declaration
that they were entitled to be paid commission by the defendants. Defendant
was investment and insurance company who employed plaintiffs – plaintiff
used agents and field officers to procure investors for defendant company.
So plaintiff said they were entitled to be paid commissions and all other
bonuses which were supposed to be paid to agents, etc by the defendant
company. They sought a decree for 25 lakhs against defendant company.
Plaint was presented on 11.8.1993. 4 years after filing the written statement
on 7.4.1998, they sought to make an amendment saying that they were
entitled to a decree of 4 lakhs from plaintiff with interest, based on contract.
This application was opposed because introducing a set-off/counter-claim
after the time limit expired. Single judge of HC said you should have done it
with your written statement or at the first hearing of the suit. So time
barred. But on appeal, the division bench said it would be treated as an
equitable set-off. The court can always entertain such a plea. Equitable set
off is based on equity, justice and good conscience. This happens in a
situation where set-off ought to be so connected with the main claim so as
to be inequitable to not allow the main claim to be heard without
considering this deduction. Equitable set off must arise from the same
transaction as the main claim of the plaintiff. It is discretionary and not a
matter of right. So 2 conditions – same transaction and otherwise
inequitable.

● COUNTER-CLAIM

● Order 8 Rule 6A to 6G.

● Permissible only after 1976 amendment.

● Requirements: any cause of action arising before or after the filing of the
suit but before the Defendant has delivered his defence or before the
time limited for delivering the defence has expired; should not exceed

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 pecuniary limits of court’s jurisdiction.
● Ramesh Chand Ardwatiyavs Anil Panjwani [2003(7) SCC350]-the right to
prefer a counter-claim runs with the right of filing a written statement. Once
that right is lost, then counter-claim cannot be permitted to be raised.
● Chargeable with court fees in the same manner as a Plaint (section 8 of the
KCFSV Act).
● Limitation- deemed to be instituted on the day when counter-claim filed in
court.
● In counter claim, cause of action may arise before or after first claim but
before defendant delivers defence or before time for filing defence lapses. If
you can’t file a set off, you can just file a counter claim. its simpler, less
stringent. here can be even unascertained sum. counter claim should not
exceed pecuniary jurisdiction of court. counter claim shall have same effect
as a cross suit. court should produce final result on og claim and counter
claim. it will get tried with the same suit. plaintiff can file written statement
as defence. rules relating to counter claim in the next couple of clauses.

● Why counter-claim and not counter-suit? Because for the former, you can
have it tried in the same case in the same suit, with no extra need for notice
being served to the opposite party.
● Counter claim is broader than set-off, need not be ascertained sum of
money, time period is longer, parties need not be in the same title (but have
to check judgements to tell for certain).

BASIC READING

● Orders 6,7 and 8.

● Barrodaile vs Hunter (1845) 5 Man and Gr 639.

● Ram Sarup Gupta vs Bishun Narain Inter College (1987) 2 SCC 555;
Bhagwati Prasad vs Chandramaul AIR 1966 SC 735.
● Virender Nath Gautam vs Satpal Singh [2007 (3) SCC 617].

● G. Nagamma vs Siromanamma [(1996) 2 SCC 25]; Srinivas Ram Kumar vs

Mahabir Prasad [(AIR 1951 SC 177)] and Praful Manohar Rele vs KN
Ghosalkar [(2014) 11 SCC 316]. Per contra : Steel Authority of India Limited
vs Union of India [(2006) 12 SCC 233]; Sarva Shramik Sangh vs IOC [(2009)
11 SCC 609]
● M/s Ganesh Trading Co vs Moji Ram [(1978)2 SCC 91]

Page 19 of 127
 ● BK Narayana Pillai vs Parameswaran Pillai [2000(1) SCC 712]

● Pirgonda Hongonda Patil vs Kalgonda Shidgonda Patil [AIR 1957 SC 363]

● ONGC Limited vs Modern Construction Company [2014(1) SCC 648]. Harshad

Chimanlal Modi vs DLF Universal Ltd [2006(1) SCC 364].
● P.V. Gururaj Reddy vs P. Neeradha Reddy [2015 (8) SCC 331]

● Balasaria Construction (P) Ltd vs Hanuman Seva Trust [2006 (5) SCC 658]

● M/s Commercial Aviation and Travel Co vs Vimla Pannalal [1998 (3) SCC
423]-
● Kailash vs Nankhu [2005(4) SCC 480]

● Balraj Taneja vs Sunil Madan [1999(8)SCC 396

● Shri Udhav Singh vs Madhav Rao Scindia [1977(1)SCC511]

● Millington vs Loring (1880) 6 QBD 190; Wood vs Durham (1888) 21 QBD 501.

● Tildesley vs Harper [1878 (10) CD 393].

● Badat and Co vs East India Trading Co [ AIR 1964 SC 538]

● Union of India vsKaram Chand Thapar and Bros [2004(3) SCC 504]

● Jitendra Kumar Khan vs Peerless General Finance and Investment Company

Limited [ 2013 (8) SCC 769]
● Ramesh Chand Ardwatiyavs Anil Panjwani [2003(7) SCC350]

ADDITIONAL READING

● Takwani, Part 2, Chapters 6 and 7.

MODULE 8 : Appearance of parties and consequences of non-appearance

What are the consequences of failing to appear when the case is called on for
hearing? What remedies are available thereafter? What if parties fail to present
evidence when required to do so? What rules govern the grant of adjournments?
Would you agree that laxity in applying these rules is the major reason why the
Indian civil justice system is weighed down with delays?

Page 20 of 127
 APPEARANCE OF PARTIES

AND CONSEQUENCES OF NON-APPEARANCE

● The hearing on the day fixed in the summons for the defendant to appear
and answer – prior to first hearing
● First hearing is the date on which court applies its mind to the issue of the
parties to draft the issues for the argument stage.
● All subsequent hearings are adjourned hearings.

● Order 9 applies only to day fixed for summons; order 17 applies to

adjourned hearings.

● Note at the outset that the relevant rules are contained in Order 9 and
Order 17 Rules 1 to 3. In Order 9 Rule 1 a distinction is made between
hearing on the day fixed in the summons for defendant to appear and
answer and an adjourned hearing. The provisions of Order 9 relate to the
day fixed in the summons – however, by virtue of Order 17, Rule 2, the
court may dispose of the suit in one of the modes directed in Order 9 and
therefore the provisions of Order 9 become applicable to the hearing on the
day fixed in the summons and to the adjourned hearings. (Note however the
phrase “or make such other order as it deems fit” in Order 17 Rule 2.)

● Provisions relating to defaults by the Plaintiff :

(a) Order 9 Rule 2: Failure to pay court-fee or postal charges for

summons or present copies of the plaint-court may dismiss the suit.
Remedy: Order 9 rule 4 –fresh suit or application to set aside dismissal.
(b) Order 9 Rule 5: Failure to apply within 7 days from the date of
return of summons for a fresh summons- court shall make an order of
dismissal unless satisfied that failure due to sufficient cause, etc.
Remedy: Order 9 Rule 5: Fresh suit.
(c) Order 9 Rule 3: Failure of plaintiff to appear (and Defendant also
does not appear)- Court may make an order that the suit be dismissed.
Remedy: Order 9 Rule 4- fresh suit or application to set aside order of
dismissal.
(d) Order 9 Rule 8: Failure of plaintiff to appear (but Defendant appears)-
the Court shall make an order that the suit be dismissed unless
Defendant admits the claim or part thereof. Remedy: Order 9 Rule 9 –
fresh suit precluded but can apply to have dismissal set aside.
In order 8 rule 5, whatever defendant doesn’t deny is admitted but
plaintiff MAY still need to prove the case. But in order 9 rule 8, if plaintiff
doesn’t appear but defendant appears and admits the claim, plaintiff can
automatically get a decree in his favour – SHALL pass a decree. Isn’t it
contradictory? So doesn’t plaintiff benefit from not appearing at all?
SHALL v. MAY

Page 21 of 127
 ● Provisions relating to defaults by the Defendant

(a) Order 9 Rule 6: Defendant fails to appear even though Plaintiff

appears – the Court may make an order that the suit be heard ex parte.
This is just an order allowing ex parte proceedings.
Remedy: Order 9 Rule 7: application to set aside ex parte proceedings
(can be filed only until suit posted for judgment) – if you give a good
cause for not coming last time, you will be permitted to be heard as if
you had appeared the previous day. But costs may be imposed for
previous non appearance.
(b) Order 9 Rule 13: Ex parte decree passed against the Defendant.
Remedies: Order 9 Rule 13 application to set it aside, appeal against the
ex parte decree under section 96; review petition if possible and fresh
suit to set aside ex parte decree on the ground of fraud.
Here decree itself has been passed. High threshold to set aside the
decree.
Order means different decisions taken by a civil court until the final
decision. The ultimate decision decides conclusively about the case –
that’s the decree. By virtue of S.96, every decree that has been passed is
appealable as a matter of right, plus right under order 9 rule 13 to set
aside the decree. (not all orders are appealable).
There can only be one decree against two parties at a time.

Only decision of the appellate court is given, the lower court’s decree is
merged with the appellate court and your order 9 rule 13 app becomes
infructuous.

Proceedings before the trial court culminate in a decree, ultimate

decision of the TC conclusively determining rights of parties. Defined in
section 2. In contradistinction, orders are smaller decisions – every other
decision which is not a decree. Either have orders or have decrees. An
order may or may not be appealable – statutory right. Decree – right to
first appeal is universal human right. Includes right to appeal against an
ex parte decree under s 96. Once the appellate court is hearing your
appeal, and ultimately decides whether the lower court decree is correct,
and whether it has to be reversed. If it sets aside the decree of the TC,
then until the appellate court heard the matter, you had only one decree.
After HC’s decree, now u have two decrees. Now u can go on second
appeal. You can have so many judgements and decrees from all tiers of
courts. Doctrine of merger states that once the appellate court has
passed a decree, the judgement of the lower court dissolves and merges
with the judgement and decree of the appellate court. The judgement
and decree of the lower court no longer exists.

Only the final decree is executable. But till the appellate court gives
decree or stays the TC decree, it is executable and in force.

Order 9, Rule 14

No decree to be set aside unless notice is served.

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● Where there are multiple Plaintiffs and Defendants and only some
appear- Order 9 Rule 10 (only some Plaintiffs appear)- suit may proceed or
court may pass such order as deemed fit. Order 9 Rule 11 (only some
Defendants appear)- the suit shall proceed and the Court shall at the time
of pronouncing judgment make such order as it thinks fit with regard to the
Defendants who do not appear.

● Consequences of non-appearance by party ordered to appear in person.

Order 9 Rule 12.

● Order 17:

● Rule 1: - court fixes date and time for hearing

● Rule 2: - if any of the parties fail to appear, then court can take action as
per order 9 or any other decision as it seems fit. Ex parte is also possible, if
evidence is there and has been proved substantially.

● Where parties fail to produce evidence, cause the attendance of the

witnesses or perform other acts necessary for the further progress of
the suit- Order 17 Rule 3. Parties have appeared but they’re not going to
lead evidence or do whatever is required. Court can still decide to proceed
nonetheless.

● So two types of default – 1. Not appearing – rule 2, 2. Not doing what

is necessary in the suit – rule 3.

● Sangram Singh vs Election Tribunal Kotah [AIR 1955 SC 425]: Defendant who
is placed ex parte has right to take part in the proceedings from the stage at
which he appears; but no right to “turn back the clock” which is the
discretion of the court.

● Bhure Lal contested the election of the appellant Sangram Singh. After a few
hearings, seat changed and parties notified to appear in a different court.
On the due date – 17th march, neither sangram singh nor his counsel
appeared before the tribunal. Only after 3 days after the commencement of
the proceeding, counsel appeared but dismissed because court said
proceedings ex parte. Appellant wanted to set aside this ex parte order but
court set it aside, in favour of the respondent, saying they didn’t
satisfactorily give reason. HC rejected appeal that appellant was negligent
and deferred to the tribunal. Appealed to the SC under art 133. First issue
whether the HC had juris to entertain appeal from the tribunal. The unique

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issue is that s/105 of RPA mentions that any judgement would be final and
conclusive – so appeal might not be allowed. But SC cited precedent and
said S.105 does not bar HC or SC’s right to hear case on appeal. But
exercise it very carefully, and not do in every case, only cases where
substantive justice is needed.
2nd issue – court said it was conflicting – what is an ex parte? One precedent
said it is ‘absence of the defendant’, another said it was defined as ‘absence
of the defendant till the proceedings have been terminated’. SC went with
the first definition ‘absence of the other party’ – does not mean not giving
the defendant any right after he comes at some point in the case. SC
quashed the order from the HC and the tribunal – if the defendant appears
at a later stage, then he has to be given his right. Court said procedure is
only regarded as facilitating ends of justice, not a penal enactment giving
penalties. If there’s too much technical strictness, it would be against
justice. Procedure is grounded in PNJ. It requires that any decision should
not be reached against one’s back and one should not be condemned
unheard. The other party should not be precluded from participating. Court
says this is not a case in which the defendant didn’t appear at all. The
tribunal failed to exercise its discretion – could have used order 9 or 17 to
grant relief to the defendant. Court said tribunal felt that there was no way
of relief, but it was wrong. Tribunal should have heard the defendant. Court
said HC also wrong.
Crux of the legal question – can sangram singh take part in the proceedings
from the day he came to the court? SC said he can do it from the point he
joins the proceedings, and this will prospectively affect everything that
happens.

Sir’s version of facts:

Bhure Lal filed an election petition under s.100 of RPA against sangram
singh and others. During adjourned hearings, on 17.3.1953, sangram singh
didn’t appear nor his counsel. Tribunal proceeded ex parte against him –
order 9 rule 6. Matter adjourned to the 18th – both of these days, witnesses
were examined for the plaintiff. On 18th also, sangram singh didn’t come. On
19th, case adjourned to 20th. On 20th, sangram’s counsel appeared and
sought to take part in the proceedings – for cross examination. But court
didn’t permit him to take part in the proceedings, because an ex parte order
was passed on 17th. It means you are never entitled to take part in the
proceedings. After 20th, matter was adjourned to the 21st. on 21st, sangram’s
counsel made an application in writing seeking to set aside the ex parte
proceedings from 17th and asking to cross-examine Bhure lal’s witnesses –
all those who had been examined in the 3 sessions before. This application
was filed basically to go back to the 17th and start over by cross examining
all the witnesses. The election tribunal rejected the app. A writ petition filed
in HC, rejected, granted a certificate under Art.133(1C) of Consti – leave to
appeal to the SC. So the defendant-appellant went to the SC under Art.133
and Q was whether the tribunal was right in refusing the defendant’s
counsel in refusing to allow the counsel to participate on or after 20.3.1953.
SC noted that under 90(2) of RPA – procedure in the CPC applies to these
RPA proceedings. SC talked about right to be heard and right to participate.
Distinction between first hearings and subsequent hearings, order 9 and
order 17, date fixed in the summons and adjourned hearings. Order 9
applies only to the date fixed in the summons. But by virtue of order 17 rule
2 – which applies to adjourned hearings - court is empowered to pass orders

Page 24 of 127
 as it may have passed under order 9 or any other orders. Under order 9 rule
6, if a party has come later even after an ex parte order has been passed, he
can participate from that day onwards. So counsel, as a matter of right, can
take part in the proceedings on the 20th. Though he has a right to appear in
the adjourned hearings, he has no right to set back the hands of the clock,
cannot seek cross exam of witnesses who have been examined on the 17th
and the 18th. That cannot be done – what is done is done. This is exclusively
within the discretion of the court – it may or may not allow.
PARTICIPATION FROM THE DAY YOU COME – RIGHT.
PARTICIPATION BY SETTING BACK THE CLOCK – DISCRETION.
Even though the defendant had appeared at the first hearing, filed written
statement and all, etc, order 17 would apply and not order 9 – because final
issue was about an adjourned hearing. Order 17 rule 2 applies – court is
given the widest discretion – make an order as may be made under order 9
or any other order as it deems fit. So discretion under order 17 wider than
order 9. SC set aside order of tribunal and HC and remanded the matter
back – tribunal should reconsider the decision and see whether it wants to
exercise its discretion to set the clock back, and allow the defendant to
cross-examine earlier witnesses.

There is no such provision which explicitly sanctions continuing your

appearance in later hearings, because that is a matter of right.

● Bhanu Kumar Jain vs Archana Kumar [2005(1) SCC 787]-the remedies

available to a Defendant against an ex parte decree discussed. Once appeal
against ex parte decree disposed, no application lies under Order 9 Rule 13.
Conversely, once application under Order 9 Rule 13 rejected and appeal
against the order of rejection under Order 43 Rule 1 dismissed, cannot raise
the issue in the appeal. The appeal can only be agitated on the merits of the
case.
● Suit for partition filed in 1976. In this suit, in 1985, the defendant was
placed ex parte – 7.10.1985 and matter was adjourned on several occasions
for plaintiff’s evidence. Finally listed for argument and plaintiff’s counsel
argued the matter, then listed for judgement, after judgement – 25.10.1985,
decree was also drawn up – all in 1985 itself, in favour of the plaintiff. App
under order 9 rule 13 filed on 5.11.1985. once decree is passed, make
application under order 9 rule 13, before judgement make under order 9
rule 7. The application under order 9 rule 13 dismissed here bc defendant
had not shown sufficient cause. Appellate remedy against order dismissing
this app – order 43, rule 1d. (When an app is made under order 9 rule 13,
the final order passed by the code can be appealed under order 43, rule 1d).
Defendant preferred an appeal to the HC saying he did show good cause.
HC also dismissed. Then he went to SC. SC also dismissed SLP.

● Another appeal: HC in an appeal on the main decree under S.96, reversed

the decree saying he should have been heard. SC said once HC gave an
order on the issue of order 9 rule 13 – conclusively. Why bring it up again
under S.96? HC can look at decree on merits, but not the procedure of the
decree. Res judicata applies in different stages of the same proceedings.

Page 25 of 127
 ● CRUX: When an ex parte is passed, he can prefer a review petition, he can
file a suit saying fraud to set aside the ex parte decree, he can prefer an
appeal under S.96, he can make an application under order 9 rule 13. All
these can be pursued simultaneously. But once a judgement has been
rendered in ONE OF THESE REMEDIES, the same point cannot be agitated
again in another proceeding under any court.

● Alleging fraud on the parties – the other party gives your name wrong,
address wrong, so that summons is not served to you, etc. so he makes the
ex parte order obtainable through fraud.

BASIC READING

● Order 9 and Order 17 Rules 1 to 3.

● Sangram Singh vs Election Tribunal Kotah [AIR 1955 SC 425]

● Bhanu Kumar Jain vs Archana Kumar [2005(1) SCC 787]

ADDITIONAL READING

● Takwani, Part 2, Chapter 8

Module 9: Pre-trial Procedures. Anglo-American civil procedure provides for

various procedural devices that can be used before the trial - to narrow down
issues, pre-empt admissions, discover probable evidence and avoid a needless
trial. The goal is to minimise the time, costs and vexation that is bound to be
incurred by the parties and the courts.

TOPIC A: FIRST HEARING OF THE SUIT

(a) What is the ‘first hearing” of a suit? Arjun Khiamal Makhijani vs.
Jamnadas Tuliani (AIR 1989 SC 1599) – the day on which the court
applies its judicial mind to the case either for framing issues or for taking
evidence, is the first hearing of the suit and the first hearing cannot be
before that date. Shyamlal vs. AtmenandJain Sabha, Dal Bazaar – 1987
(1) SCC 222 – the day on which the Court applies its mind to the case is the
first hearing of the suit and not before that.
● Other dates are: 1. day fixed in the summons for the defendant to

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 appear – defendant files vakalat and files his pleadings – 2. adjourned
hearings

(b) What happens on the first hearing? Examination of parties by the court
(Order X), Framing of Issues (Order XIV), reference to ADR (Section 89
read with Order X Rules 1A to 1C) and even possibly Final Disposal (XV).
Court must:
1. Examine parties
2. Frame issues
3. Reference to ADR
4. Final disposal (maybe)

● Order X:
1. Ascertainment whether allegations in pleadings are admitted or denied.—At the first
hearing of the suit the Court shall ascertain from each party or his pleader whether he
admits or denies such allegations of fact as are made in the plaint or written statement (if
any) of the opposite party, and as are not expressly or by necessary implication admitted
or denied by the party against whom they are made. The Court shall record such
admissions and denials.

Duty cast on the court to not straight away go for trial. But before going to trial,
English law mandates that the judge applies his judicial mind to go
through the pleadings and see whether in fact, the party admits what he
is purporting to admit. Every allegation of fact made in the plaint if it is
not denied specifically, is deemed to be admitted. So defendant’s written
statement is important.
Object of order 10, rule 1 is to ensure that you are expressly admitting or denying
something, without jumping to conclusions about implicit acceptance/denial –
courts check with the defendant once.

3 forms of denial- admitted, denied, ignorant.

But usually, none of the judges look at order x, rule 1. So usually a lot of
things are deemed to be admitted, which weakens the defendant’s case.

● Order X, Rule 1A-1C – ADR.

(c) What is the object and purpose of the provisions under Order X CPC– is it
for the purpose of gathering evidence?

T. Aravindanam vs. T.V. Satyapal (1977 (4) SCC 467) – frivolous suits
should be nipped in the bud on the first hearing by examining the parties
under Order X CPC.

Order X Rule 2. Oral examination of party, or companion of party

Manmohandas Alias Bachaji vs. Ramdei Musammat (Oudh Weekly
Notes– Volume VIII Page 936- Privy Council deprecated the practice of the
trial judge in first recording the evidence of the Defendant witness by calling
him and putting questions to him on the whole case, as contrary to the
object of Order X.

Page 27 of 127
 Respondent and brother owned 16 annas of house in allahabad. plaintiff
purchased 8 annas from the brother. On 1 august 1999, plaintiff purchased
4 more annas. On 2 august 1999, remaining 4 annas gifted by brother to
minor wife. But these 4 annas were sold off by behari lal who claimed that
the gift deed was fictitious. This was contested in the suit.

Gift deed: Court said that the terms in the deeds were legitimate. Gift deed
was legitimate, not a false or fictitious document.
Behari lal convinced people that gift deed was fictitious and sold off the
property to the appellants. Suit decreed ex parte, gift deed set aside. Then
contract for sale deed entered into and paid to behari lal.
Now wife of behari lal filed an appeal to the decree about the gift deed and
the HC set aside TC decree and held that gift deed was valid and 4 annas
were indeed owned by behari lal’s wife. So now the sale of contract was
declared invalid. After this, behari lal was declared insolvent.
PC satisfied that appellants not able to prove that gift deed was fictitious.
Behari lal was not reliable. Court felt that no need to set aside the deed, it
would help the minor to make a living out of it. Appellants, considering
bankruptcy of behari lal, got reversionary orders in their favour.

Procedural irregularities:
1. At the TC, Allahabad sub judge summoned behari lal as a court witness.
This is an irregularity as acc to PC, burden of proof on plaintiff to prove
their case. In the end, parties actually relied on his testimony.
But PC says that order 10, rule 2(2) gives court power to examine any
party at any stage and pose any question. This deals only with those
questions which are materially related to the suit. This cannot be used to
override ordinary procedure of order 18.
So they felt that TC had exceeded their power – because there was no
material question relating to the suit.
2. HC had also summoned a barrister as a court witness. But judge did not
examine this witness. PC sees this as a general bar of not introducing
evidence at a later stage. Order 41, rule 27 gives appellate court lot of
power to call in additional witness and record fresh evidence at the time
of appeal. But HC should record special reasons for this – not done here.

FACTS (according to sir):

4 judge bench of PC. Appeal against decree of Allahabad HC, reversing the TC
decree. Pre-consti judgement where appeals from HC goes to PC.

Behari Lal – executed a gift deed in favour of his wife (minor) in 1919. After this, he
sold the same immovable property to the appellants before the PC for 15,000 in
1923. Does he have any title to even give the property at all – then how can he sell
it? The transaction effected in favour of his wife was when she was a minor – so Q
whether gift deed was valid or not. Appellants argued that gift deed was fictitious
so title still w Behari Lal.

Page 28 of 127
At the TC usually plaintiff calls his witnesses and marks his documents, same for
defendents. Then cross exam of each other. Finally, arguments, judgement then
decree. But here TC even before the trial commenced, called behari lal (the
defendant) as a court witness – S.165 of IEA, the court is with power to summon
people. TC held that gift deed was fictitious.

Then appealed before HC, which held that gift deed was valid. This again appealed
in PC.

So PC had to answer – 1. Is gift deed valid? 2. Whether TC procedure was correct?

PC deprecated the TC procedure. Sure, the TC has the power but use it only when
it is important to get some information which is material to the suit but should be
used only after and above the regular procedure. Don’t supersede regular
procedure at trial. It was a deviation. But PC did not discard the evidence of Behari
Lal, simply deprecated the practice. On facts, they said gift deed is valid.

Then what is even the purpose of order 10, rule 2? - This is only a clarificatory
hearing to check your pleadings, it is not to collect evidence. This examination can
happen even in a subsequent hearing. Order 10 rule 3,4 make it clear that the
information recorded is not even evidence.

2. Substance of examination to be written.—The substance of the examination

shall be reduced to writing by the Judge, and shall form part of the record.
This examination not under oath.

What happens to S.165, IEA? How we differentiate between role of the court
as an umpire – CPC provisions, and as a seeker of the truth – S.165 IEA?

K.S. Satyanarayana vs. V.R. Narayana Rao (1999 (6) SCC 104) – where
the defendant denied his signature on the Vakalath itself, the trial court
could have investigated the matter under Order X and prevented a
protracted trial.

Kapil Core Packs Pvt. Ltd. Vs. Harbanslal (2010 (8) SCC 452) - the power
under Order X is only for the purpose of clarifying the stand of the parties in
regard to the allegations made; it cannot be converted to a process of cross-
examination by the court. Says that it is a pre-trial procedure.

Page 29 of 127
 Kapil filed a criminal complaint against Harbanslal saying that the
agreement that Harbanslal had drafted was a forgery. He had relied upon a
forged document to make them pay money. Suit filed by Kapil Core Packs.
The crux of the dispute was whether the agreement was valid or not. TC
exercised power under order 10, rule 2 – manager of Kapil to appear in
person with docs relating to the company. TC examined him and showed
him the agreement – covered the letter in such a way that the MD could
only see the signature on the agreement and asked if it was his sign? TC
recorded that MD admitted that his signature was indeed on the agreement
so this being the crux of the dispute, MD has committed perjury because in
the written statement, he denied entering into the agreement. TC proceeded
under S.195 IPC r/w 340 CrPC – criminal prosecution against MD for
contradicting himself in pleading and examination. Issue went to SC.
Judges pointed out that order 10, rule 1 to be used when there is no full
traversal of the pleading – court should figure out if facts are admitted or
not. Rule 2 is wider, and to ascertain if the matter is noteworthy. Not to
record evidence (not under oath). Order 10, rule 2 cannot be considered as a
collective cross examination by the court. In this case, TC effectively cross
examined the MD. That’s not okay.

Sir says power can be used later also, as long as it is used for clarifying but
not collecting evidence.

(d) Issues – Order 14 CPC. What are issues? When do they arise?Order XIV
Rule 1.

(e) Is the court bound to pronounce judgment on all issues?Order 14 Rule 2.

(f) What are the materials fromwhich issues may be framed?Order 14 Rule 3.

(g) Can the Court amend or strike out issues at a laterstage?Order XIV Rule 5.

(h) When can the court dispose of a suit on a preliminary issue?Order XIV
Rule 2.

(i) Can the parties agree to put forward questions of fact orlaw as issues to
bedecided by the court? Order 14 Rules 6 & 7. Precursor to arbitration.

(j) What is the effect of non-framing of a material issue - is it fatal to the suit
and is a re-trial mandatory?

One view: Some HC and SC decisions say that if a material issue had not
been framed in an earlier court, remand it, re-trial sometimes.
Another view: even though duty of the court to frame issues, you as party
could have moved the court under order 14 rule 5 to amend, insert,
substitute or strike out a particular issue. It is the practice that counsel
drafts issues for the court many times.m

Page 30 of 127
Biswanatha Agarwala vs. Sabitri Bera (2009 (15) SCC 693) – Supreme
Court remanded the matter for fresh framing of fresh issue and trying the
same on the ground appellant was prejudiced.

2 judge bench

Suit in dispute was a shop. Appellant-defendant entered possession in

1970, from mulla. Subsequently mulla died and Rahman became owner of
property. Rahman sold the property in 1980 to the respondent-plaintiff by 3
registered sale deeds. After purchase, tenant has relationship with new
landlord. So tenant connected w mulla, Rahman and then now plaintiffs
became the landlord. Plaintiffs filed a suit in the court for declaration of title
and eviction of appellant-defendant and realization of mesne profits. They
claimed that tenancy was terminated so he was no longer entitled to remain
on the property. Appellant-defendant denied that he was a tenant under
Rahman. His claim to the property was a bit nebulous. TC held that even
though plaintiff established ownership of property, they failed to prove that
there was a relationship of landlord-tenant. Like the third party could be a
random possession fellow – permissive possession, authorized licensee,
trespasser etc. so the landlord-tenant relationship was not proved. Only if
you’re tenant, you can evict him. So you cannot get a decree for eviction.
Plaintiffs appealed to the 1st appellate court. They reversed the judgement
and said no need to prove plaintiff-tenant relationship. Very fact that you
have the title and that the other fellow has no claim, you’re obviously
entitled to evict him and get possession of the property. Defendant appealed
to the HC – dismissed. They preferred an SLP to the SC. SC said in this
case, there was no issue passed as to whether the defendant was a
trespassor or not. Since there was no issue framed like that, then defendant
could have retained possession in the property – could have proved adverse
possession to show that he had a right. If TC had framed an issue as to
whether he was a trespasser or not, then the defendant could have proved
his right. So in this case, the non-framing of the issue led to the defendant’s
prejudice, bc he could have raised adverse possession and claimed title. SC
said we remand to TC, directed them to frame the issue of trespasser, said
parties can amend pleadings, etc.

Montford Brothers of St. Gabriel vs. United India Insurance (2014 (3)
SCC 394)Where crucial issue was not raised the party was penalized for the
same.

3 judge bench

Page 31 of 127
 Member of the society – Thomas – director of the society. Thomas was
driving his car when a jeep struck him and he died in the accident. The jeep
– maruti gypsy – was insured by united india insurance. Insurance policy
covers death of members, damage to body, damage to car, and even third
party claims. Montford brothers wanted to sue for death of Thomas for
recklessness of driving. Insurance company made a party. Under motor
vehicles act, family members can claim. But this fellow is a pastor – so how
family member? Anyway, motor vehicles claim tribunal was in favour of
plaintiffs. United india filed a writ petition where for the first time they
raised a plea that montford bros not a family of the deceased, so suit not
maintainable. Plea never raised before, argued first time in appeal. HC said
that it was indeed a valid point. Appeal before SC – no issue like this framed
in the tribunal – HC failed to notice that no issue had been framed. When
no issue had been framed, HC shouldn’t have penalized montford brothers.
SC set aside order of HC and affirmed motor accidents tribunal judgement.
Non framing of a material issue has not resulted in a remand, the party who
had benefitted from that issue is deemed to have waived their right to raise
the issue. Thus montford brothers entitled to their decree.

Anshie says judgement flawed bc provisions not taken into ac. apoorva saus
how to determine which party would benefit from framing of issue?

Mahendra Manilal Nanavati vs Sushila Mahendra Nanavati AIR 1965SC

364 – Order 41 Rules 23, 25 invoked.

(k) When can the court dispose of the suit at the first hearing? Order 15.

BASIC READING

● Order X, Order XIV, reference to ADR -Section 89 read with Order X

Rules 1A to 1C; Order XV.
● Arjun Khiamal Makhijani vs. Jamnadas Tuliani (AIR 1989 SC 1599)

● Shyamlal vs. AtmenandJain Sabha, Dal Bazaar – 1987 (1) SCC 222

● T. Aravindanam vs. T.V. Satyapal (1977 (4) SCC 467)

● Manmohandas Alias Bachaji vs. Ramdei Musammat (Oudh Weekly Notes–

Volume VIII Page 936
● K.S. Satyanarayana vs. V.R. Narayana Rao (1999 (6) SCC 104)

● Kapil Core Packs Pvt. Ltd. Vs. Harbanslal (2010 (8) SCC 452)

Page 32 of 127
 ● Biswanatha Agarwala vs. Sabitri Bera (2009 (15) SCC 693)

● Montford Brothers of St. Gabriel vs. United India Insurance (2014 (3) SCC
394)
● Mahendra Manilal Nanavati vs Sushila Mahendra Nanavati AIR 1965SC 364

ADDITIONAL READING

● Takwani, Part 2, Chapter 9

TOPIC B: DISCOVERY

(a) Sections 30 to 32, Order 11.

(b) What is the rationale for discovery in an adversarial proceeding? Why is it

only available against the party opponent and not third parties? Why is it
not available with regard to the facts that constitute exclusively the case of
the opponent?

DISCOVERY

- Relevant Provisions: S. 30 to 32 and Order 11.

- Theoretical background: English system allows parties to use surprise as a

weapon – you can suppress a document and spring it on the witness suddenly at
cross-examination to take advantage of their surprise. In India, the pleadings must
contain all material facts and should not contain any lies as that would amount to
perjury. However, you do not have to disclose all the documents that you would
rely upon in court to support your case – you can use surprise as a tactic. Inspite
of this, due to the evolution of English Common law, it has been recognized that it
is nonetheless prudent to let the party know the plausible evidence that might be
led against them – the Court may use its coercive powers to discover documents.

- Principles regarding rules of discovery – Discovery is available only with

regard to facts that constitute exclusively the case of the opponent (Cannot ask the
appellant to reveal information that would favour the respondent, only the
evidence they will use). Discovery is only available against the opposing party in a
suit and not against a third party. There are three modes of discovery in the CPC –
Interrogatories, by affidavit of documents and by inspection.

- Surprise is not useful if the witness is a dishonest person (like ahem ahem)

Page 33 of 127
– the process of discovery helps in rebutting false evidence that may be presented
by the other party, by eliminating the element of surprise and finding rebuttal
evidence to help buttress your claims. false evidence should not win, as an
opponent you should prepare for false evidence.

- Would it include documents to be relied upon in cross-examination of

opponent’s witnesses – yes, but he’s unsure.

- If the probably evidence of your opponent is revealed before the trial, then before
the trial itself you can distort the evidence. Or you may intimidate the witness.

Multiple considerations: need to preserve adversarial system, need to prevent

tampering of docs, need to allow truthful witnesses, etc.

The evolution of law involves a trade-off between these multiple policy

considerations.

S.30 has an element of compulsion and coercion. Usually not seen in civil law,
only seen in criminal law. The process of discovering, collecting and placing
evidence in front of the court – fact-finding process. More and more power to the
judges, to call them, to make them give evidence, to pass orders, etc.

The court may, on its own motion, or on the app of parties.

S.32 – position as a witness worse off than parties – court treats you more harshly.

(c) What are the three modes of discovery recognized by the Code? By
interrogatories, by affidavit of documents, and by inspection.

(d) What is the procedure for delivering interrogatories to the party? Order 11
Rules 1 to 11– leave of the court necessary and they must relate to matters
in question in the suit; court will decide within 7 days from the date of
application; objections may be taken in affidavit in answer or application
can be made for striking off under Rule 7; affidavit in answer shall be filed
within 10 days; the court can issue direction to answer further.

“In law, interrogatories (also known as requests for further information) are
a formal set of written questions propounded by one litigant and required to
be answered by an adversary in order to clarify matters of fact and help to
determine in advance what facts will be presented at any trial in the case.”

- Order 11 rule 1- seek permission of the court and deliver

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 interrogatories in writing for the examination of opposite parties.
Have a footnote saying which questions which person has to answer.
- Scope of questions on interrogatories is narrower than scope on cross
examination. Typically, questions relating to the character of the
witness – not allowed in the form of interrogatories. Scope narrower
here.
- Court shall, within 7 days of filing app, whatever opponent concedes,
don’t ask it again in the interrogatories.
- If you have vexatiously or frivolously or excessively asked
interrogatories, the taxing officer can charge you for it.
- When youre suing a corporation, mention the member in charge of
the company by name (MD, CEO etc)
- Objections to interrogatories, all the exceptions to evidence (privilege,
self-incrimination) can be raised in the affidavit to not answer the
interrogatory
- Interrogatories may be set aside or struck on being unnecessary,
scandalous etc
- The other side will file an affidavit answering the questions in your
interrogatory, but court will still confirm if they have answered
sufficiently. The main party can apply to court for an order to ask
him to answer further.
- Appendix C, no 1.
- Person on discovery is on oath, if he lies then he is liable for perjury.
- Party can use what you said in an interrogatory, to mark
contradictions in cross examination.

Discovery is only for other party, not for his witnesses. This is to retain the
surprise element.

Raj Narainvs Indira Nehru Gandhi (1972) 3 SCC 850- relationship

between pleadings, issues and interrogatories seen; questions permissible
during cross-examination not necessarily “related to any matters in
question in the suit” under Order 11 Rule 1.

Nishi Prem vs JavedAkhtar 1987 SCCOnlineBom 296: discovery does not

enable the party to know the facts which constitute exclusively the evidence
of the opposite side; or to discover who the witnesses for the other side
might be; “newspaper rule” in England followed.
Fatcs:

OG defendant no.3 published an article in a film magazine ‘stardust’

published in 3 languages. Article published related to plaintiff and wife
(Javed Akhtar and Shabana azmi). Statements made by the writer based on
info given by various people at parties etc. especially in relation to mr. india
– she used words like industry wala, star wife, etc. JA claimed defamation
for rs.25 lakhs damages. Defendant claimed it was true based on some
conversations. Plaintiff said it was concocted and no such information. Sued
mag, writer, etc. affidavit filed by the plaintiff wrt chamber summons said
he needed name of information to substantiate his case. He also wished to
sue those people. As her answer to the chamber summons, plaintiff said
discover by interrogatories should not be allowed. 1. Wanting to file case
against informant is an improper object. 2. She shouldn’t reveal witnesses
to trial. 3. It would be breach of confidentiality. Trial court judge negatived
all considerations. Appeal to Bombay HC by the defendant against order of

Page 35 of 127
 TC judge.

Whether the newspaper can be compliant in revealing the sources?

Order 11 rule 1 talks about the leave of the court. Whether the grant of
order for interrogatories was relevant.

Arguments in the Bom HC:

Appellant: you cannot direct us to respond to interrogatories which pertains

to evidence that we are directly relying upon for the later case – esp
confidential sources. So this is directly a part of our evidence, you cannot
compel us to supply their claims.

Respondent: but this interrogatory will lead to them boosting their own
arguments, will prove malicious intent to help damages. They haven’t
directly responded to the claim that it exclusively pertains to evidence.

Appellant: you didn’t tell why its so important to substantiate the claim.
Even if malice is proved, you can get damages later. Why you need now
itself at this stage of the case?

They also said they’re protected under newspaper rule – not allowed to
reveal the sources in the interlocutory stage. Relied on an English case of
steel corporation – where for some 100 years, newspaper rule has prevailed
in England. The only exception is larger public interest, national security.

So the appellant said neither of these exceptions, so not compelled to reveal

the name of the informant.

Defendant: this rule is not followed in all common law countries. They
pointed to America and showed that in 2 cases, it has been revealed.

Judgement:
HC held that interrogatories should not be granted because the need for the
interrogatories here seems to be to sue them instead. You can’t ask in an
interrogatory who the probable witnesses might be – cuz of tampering
(ratio). They upheld the newspaper rule. The court held that at this stage,
interrogatories doesn’t seem relevant.

(e) What is the procedure to obtain discovery of documents? Order 11 rules 12

to 13. Application to court for order – Affidavit in answer in Form No. 5
Appendix C.

ML Sethivs RP Kapur (1972) 2 SCC 427: Order 11 can be used in forma

pauperis proceedings; application for discovery need not specify the
documents sought to be discovered.

Forma Pauperis: It refers to the ability of an indigent person to proceed in

court without payment of the usual fees associated with a lawsuit or appeal.

Page 36 of 127
 The respondent filed an application for permission to sue in forma pauperis
against the appellant, and notice of the petition was-given to the state
Government and the appellant under O.33, r. 6, CPC à notice of day for
receiving evidence of applicant’s indigency. The Government and the
appellant filed objections, that the respondent was not a pauper. The
appellant also filed an application for discovery of documents from the
respondent for proving that the respondent was not a pauper.

HC said there was no evidence that he was a pauper – respondent filed

affidavit and application much later than directed and so was asked to pay
the court fees – HC also said documents being claimed to have been
discovered weren’t specified in the appln - the trial court acted with
material irregularity as it did not consider the question of the necessity for
discovery of the documents or the relevance of the documents of which
discovery was sought also for the reason à that, in ordering discovery of the
documents relating to personal accounts, and pass books, it overlooked the
right of the respondent to claim privilege the trial court overlooked the right
of the respondents to claim privilege; and- the trial court, rejected the
application to sue in forma pauperis for statistical purposes

- Distinction between material irregularity and error on law.

- S. 115 CPC : uses the phrase material irregularity

- In S. 96 CPC, the party has the right to first appeal

- The suit is for damages here

- S. 115: The HC calls for the record of any case and the case must
meet one of the conditions enumerated in S. 115

- Discovery should be used in the main trial, but one for the damages –
the civil court acted with material irregularity

- Cannot use discovery proceedings (Order 11 CPC) in in forma

porporis (Order 33) – can only be used in the main trial and its use in the
damages suit was a material irregularity. - neither accepted nor rejected the
ratio in anisminic (v imp)

(f) Order 11 Rule 14

Court can order production of docs, on oath, relating to the case. Opp party
need not ask for any document in specific also, you can even say produce
all documents relating to the case.

(g) What is the procedure for inspection of documents ?Order 11 Rules 15 to

19. What is the difference between Rule 15 and 18?

Page 37 of 127
 Every party is entitled to give notice to the other party to permit inspection.
They can fix a time and place, and court can order for the same. Instead of
inspection of og books, sometimes copies of some parts of the book enough.
Copy should be fair copy and should coincide with the originals. When
privilege is claimed, court can inspect it to decide.

19(3) – 3rd mode of discovery – inspection – 20 also.

(h) What is the effect of failure to comply with an order for discovery? Rule 21.
M/s Babbar Sewing Machine Co vsTrilokNathMahajan (1978) 4 SCC
188: unless there is a clear failure to comply with the Rule, Order 11, Rule
21 should not be lightly invoked.

(i) Rajesh Bhatia vs G. Parimala 2006 (3) ALD 415, M.

SivasamyvsVestergaardFrandsen.

Comparison between india and US

● US system more party driven, indian system more court driven –
judge has to permit, examine etc.
● In US, lot of energy and money spent on pre-trial discovery –
depending on amount of money party is willing to spend. In india,
law commission notes that discovery hardly ever used in india.
● Because of extensive use of pre-trial discovery in the US, cases are
largely settled and trial is avoided many times
● Penalty in US for not complying with contempt; india – order 11,
rule 21 – suit dismissal or ex parte.

TOPIC C: ADMISSIONS

● Sections 30 to 32 CPC and Order XII CPC.

● What are the two types of admissions according to Wigmore?

● What is the procedure for issuing notice to admit documents?Order

XII Rules 2 to 3A.

● What is the procedure to issue notice to admit facts? Order XII Rules
4 to 5.

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 ● What is the procedure to prove an admission – is the affidavit of the
pleader or his clerk sufficient? Order XII Rule 7.

● Either party may issue notice to the other party to admit facts or
docs. Then your cost will be lessened.

● In spite of notice, if you fail to admit and you lose, cost of documents
will be borne by you

● If a notice is to be given, form no 12 in appendix C to be used.

● You can retract admission through way of amending pleadings.

● Proviso to rule 4 prevents estoppel from applying to retract your

claim.

BASIC READING

● Sections 30 to 32, Order 11. Sections 30 to 32 CPC and Order XII CPC
(admissions)
● Raj Narainvs Indira Nehru Gandhi (1972) 3 SCC 850

● Nishi Prem vs Javed Akhtar 1987 SCCOnlineBom 296

● ML Sethi vs RP Kapur (1972) 2 SCC 427

● M/s Babbar Sewing Machine Co vs Trilok Nath Mahajan (1978) 4 SCC 188

● Rajesh Bhatia vs G. Parimala 2006 (3) ALD 415, M. Sivasamy vs

VestergaardFrandsen.

ADDITIONAL READING

● Takwani Pages: 293 to 311.

● Wigmore $ 1845 to $ 1863.

Module 10: The trial

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The trial is the culmination of all the procedures adopted thus far - the ultimate
battle of evidence and argument, law and fact. Partisan gladiators called advocates
match wits in a carefully controlled arena called the courtroom- the game has to
be played according to the rules and no quarters may usually be asked.

THE TRIAL

TOPIC A :

PRODUCTION IMPOUNDING AND RETURN OF DOCUMENTS

(a) Sections 30 to 32, Order 13.

(b) Original documents to be produced at or before settlement of issues – Order

13 Rule 1. What are the exceptions to the same?

Order 13 rule 1, order 7 rule 14, order 8 – production of documents –

original documents. Until the issue arises, you’re welcome to give Xerox
copies.

(c) Is delay in producing originals fatal? BillaJagan Mohan Reddy

vsBillaSanjeeva Reddy (1994) 4 SCC 659- the requirement to explain the
delay under Rule 1 Order 13 is not as rigorous as that under section 5 of
the Limitation Act; in this case documents were allowed to be produced at
the stage of arguments but opportunity to rebut given to the other side. Is
the approach of the Supreme Court in the said case defensible?

(d) What is the procedure for the marking or admission of documents? Order
13 Rules 3 to 7. What are the matters to be endorsed on every document
admitted in evidence? Rule 4.

(e) What is the effect of failure to endorse a document as required under Rule
4? SadikHussain Khan vsHashim Ali Khan AIR 1916 PC 27-the
document will not be read as evidence.

(f) When should objections be raised as to the marking of documents?

Hemendra Rasiklal Ghia vs Subodh Mody 2008 (6) Mh LJ 886 (Full
Bench)

Whether admissibility should be decided when exhibited, when sought to be

marked or deferred until final judgement by court ? some courts hear
lawyers finally not just on final arguments, but even on these smaller
points. As per order 13 rule 3, court must decide on earliest opportunity
and not defer it to be decided with the main matter. If youre going to defer
the ruling on admissibility till the main matter, then parties have to

Page 40 of 127
 challenge main decree with matter f admissibility. So you can object to
admissibility at stage of marking and even in the pleadings! Objections can
be of three types:

- Objections against documents can be of three types- (i) insufficient

stamping (ii) inadmissibility due to some other law (iii) proof of the
document.

Insufficient stamping- has to be decided then and there. It is illegal not to

pay stamp duty. Refer matter to registrar of stamps, who conduct enquiry,
after paying penalty, then document can be admitted.

Merely because a document is marked, objections as to admissibility not

precluded even at later stages – order 13, rule 3.

However, failure to object as to proof of a document amounts to waiver of

the necessity of formal proof of a document and cannot be raised later. But
court can at a later stage treat a document as not proved. Only opponent
loses the right to object, court can always do whatever it wants.
The fact that Exhibit has been marked without objection does not preclude
the raising of questions pertaining to its admissibility. Hemendra Rasiklal
Ghia vs Subodh Mody.

However, note SaitTarajeeKhimchandvsYelamarti Satyam alias Satteyya

(1972) 4 SCC 562 – mere marking of a document does not dispense with
proof of the document.

Karnataka – some judges refer ruling on objection and decide it on a later

stage – esp secondary evidence. Will mark it subject to the objection of the
other counsel. Not a good practice – wastes time.

(g) Under what circumstances might the court order the impounding of
documents? Order 13 Rule 8. Insufficient stamping could be a ground.

(h) When can a party seek return of documents produced by him in the suit?
Order 13 Rule 9.

(i) If a document is in the custody of another court, how to get the same?Apply
under Order 13 Rule 10.

(j) Provisions as to documents also apply to material objects. Order 13 Rule

11.

(k) When can an adverse inference be drawn from non-production of a

document? Hiralal vs Badkulal AIR 1953 SC 225- not necessary that a
direction to produce has been issued.

BASIC READING

● Sections 30 to 32, Order 13.

● BillaJagan Mohan Reddy vs BillaSanjeeva Reddy (1994) 4 SCC 659

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 ● SadikHussain Khan vs Hashim Ali Khan AIR 1916 PC 27

● HemendraRasiklalGhia vs SubodhMody 2008 (6) Mh LJ 886 (Full Bench)

● SaitTarajeeKhimchand vs Yelamarti Satyam alias Satteyya (1972) 4 SCC 562

● Hiralal vs Badkulal AIR 1953 SC 225

ADDITIONAL READING

● Takwani Pages: 312 to 314.

TOPIC B:

SUMMONING AND ATTENDANCE OF WITNESSES

(a) Sections 30 to 32, Order 16.

Two ways in which witness can be brought to court:

(b) What is the procedure for ensuring that witnesses to be called are present in
court on the date of trial? If the witness willingly would come and depose, it
would appear that nothing needs to be done except ensuring the presence of
the witness on the date of trial (Rule 1A Order XVI). However, if the witness
is recalcitrant, then you should include her name in the List of Witnesses
furnished to the court under Order 16 Rule 1 within 15 days from the date
issues are settled.

Mange Ram vs Brij Mohan (1983) 4 SCC 36: rules 1 and 1A operate in
separate fields – only if court assistance is required, the name should be
included in the list. But if there is a witness who has come to court to
depose voluntarily, then no need to include them in the list and send
summons. Failure to include the name of a witness who has come to court
to depose without summons is not fatal.

If the person did not turn up in response to the summons, warrant will be
issued and she will be brought in custody to give evidence.

So the point of this provision is not a pre-trial discovery – otherwise

everyone’s name should have been entered. So it is not a rule of discovery. If
you include these names in the list, the opponent will know. So no need.
Only if there is a recalcitrant witness who does not come voluntarily and
you need court’s help, then add in the list. Suppose you didn’t include
someone’s name in the list, ask for court’s leave and show cause for leaving
out that person in official list. Then you can call them now.

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 Lalitha J. Rai vs Aithappa Rai (1995) 4 SCC 244: delayed production of
list of witnesses condoned since trial was yet to commence. Supreme court
will dilute the rigorous rules applicable to trial.

(c) Who should pay for the witnesses summoned and what is the procedure
thereof? Rules 2 to 4 of Order 16.

(d) Witness can be summoned to give evidence or produce document in his

custody. Rule 6 Order 16.

(e) Can a person present in court be required then and there to give evidence or
produce a document in his possession? Yes, Order 16 Rule 7.

(f) What is the procedure for serving a witness? Similar to the procedure for
serving a party. Order 16 Rules 7A to 9.

(g) What are the consequences if a witness fails to comply with a summons?
Section 30 read with Rules 10 to 13, Rule 15 to 19. Proclamation,
warrant for arrest, attachment of property, fine, etc. Note the difference in
the manner in which a witness is treated as compared to a party who fails
to attend. Whilst a party who fails to attend court is placed ex parte and no
penal consequences ensue, a witness is supposed to assist the court in the
interest of justice and has a duty to perform.

(h) What are the consequences of refusal of a party to give evidence when called
on by the court? Order 16 Rule 20. Coercive machinery applicable only
against witnesses, not against the opponent party. Just may have an
adverse order against him. So opponent party may get away with not
producing everything or giving evidence.

(i) Can the court of its own accord summon as witnesses strangers to the suit?
Yes – Order 16 Rule 14.

Municipal Corporation of Ludhiana vs Balinder Bachan Singh 2004 (5)

SCC 182- SC at appellate stage exercising powers under Order 16 Rule 14.

Seshadri vs Vasantha Pai AIR 1969 SC 692- suo motu calling of witnesses
in an Election Petition.
The appellant before the SC elected to madras legislative council.
Respondent no 1 filed in Madras high court contending that appellant had
hired cars to convey voters to the polling booth so the result of the election
had to be set aside – corrupt practice. So the election deserves to be set
aside. Madras high court allowed and respondent no 1 declared to be the
elected candidate instead. Appellant appealed to SC and said HC judge suo
motu entered the fray and collected the evidence – irregular exercise by the
HC. But under RPA, CPC is applicable. But SC said it is allowed under
Order 16 rule 14. And on the basis of this evidence, they found that
seshadri was indeed guilty. In an adversarial system, can the court enter

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 the fray? But it is important to get to the bottom of the truth especially in an
election petition – special proceeding. Anyway judges allowed to get evidence
under S.165 IEA and order 16, rule 14. But usually in an ordinary suit, it
might be frowned upon for the court to take this excess step –the perceived
neutrality of the court will be threatened.

(j) Can the party opponent be summoned as a witness? Yes- Order 16 Rule 14
read with Rule 21. ‘so far as they are applicable’ – so usually coercive
machinery not applicable to parties. Because it is an adversarial process
and you’ll end up suffering the consequences.

(k) What is the procedure for the attendance of witnesses confined in prisons?
Order16A.

BASIC READING

● Sections 30 to 32, Order 16.

● Mange Ram vs Brij Mohan (1983) 4 SCC 36

● Lalitha J. Rai vs Aithappa Rai (1995) 4 SCC 244

● Municipal Corporation of Ludhiana vs Balinder Bachan Singh 2004 (5) SCC

182
Municipal corporation of Ludhiana notified a scheme for the development of some
lands. Plaintiffs instituted a suit for permanent injunction against corp claiming
that they were in possession of a huge piece of land and corp was illegally trying to
take possession. Said land did not part of the scheme of the corp, so they should
remain in possession. Q whether land of plaintiffs falls under area of scheme
proposed by the corp. the corp said that land was a part of the scheme. TC decreed
the suit holding that it was a part of corp, plaintiffs could not be in possession,
appellate court reversed, HC confirmed appellate court judgement. SC noted that
the arguments of the corp – suo motu directed corp to produce OG records of the
scheme. Also directed the DC of Ludhiana to conduct an inspection of land covered
by the scheme and submit a report, so here also acting suo motu. DC said it was
an open space and submitted scheme doc. Due to an intervention at the SC stage,
they concluded that it was the property of the corp and a part of the scheme. So
plaintiffs suit must fail.

● Seshadri vs Vasantha Pai AIR 1969 SC 692

ADDITIONAL READING

● Takwani Pages: 391 to 395.

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TOPIC C: HEARING OF THE SUIT AND EXAMINATION OF WITNESSES

What is the relationship between the Burden of Proof under sections

101 to 106 of the Indian Evidence Act, 1872, and the right to begin
under Order XVIII of the Code? What are the two senses in which the
phrase “burden of proof” is used according to Wigmore?

Burden of proof is important for a party to prove their case.

In contrast to this, concept of ‘right to begin’. X is suing Y on the basis of a

promissory note. Y denies the execution of that promissory note. The issue
is whether the promissory note is duly executed or not. The burden of proof
lies on the plaintiff to prove the issue that the pro note was executed by Y. if
he manages to procure sufficient evidence and place it on record, then he
has discharged his burden.

In criminal cases, standard beyond reasonable doubt. Civil cases,

preponderance of probabilities.

Right to begin – in the trial, who should commence leading evidence and
who should lead evidence second – that is the concept of right to begin.
Here, burden to give evidence first on plaintiff and second on defendant.

Who has the right to begin under Order 18 Rule 1 CPC? Where there are
multiple issues, some of which are to be proved by the Plaintiff and some by
the Defendant, what is the sequence to be followed in the trial for the
leading of evidence? Order 18 Rules 1 to 3.

Order 18 Rule 1 – right to begin. First impressions matter, so a right is

necessary. Plaintiff has right to begin unless defendant admits, or raises a
question of fact or law, then defendant has the right to begin.
Right + duty to begin.
ADMITTING ALL FACTS ALLEGED BY PLAINTIFF + CONTESTS ON POINT
OF LAW OR RAISES ADDITIONAL FACTS.

Order 18 rule 2 -

Order 18 rule 1 + rule 3 – in every suit where there are multiple issues,
plaintiff has right to begin but those issues where opponent has to prove
burden of proof, you can reserve your evidence and use it to rebut the
opponent’s evidence. Each issue will have to be proved by one or the other
party as per principles in S.101-106 of IEA.

Eg sir sues vasu. first scenario, vasu denies this issue and raises the
additional plea that he was the minor at the time. Two issues – one on the
execution of the pro note and two, capacity to contract. Issue no 1 burden
lies on sir and issue no 2 burden lies on vasu (due to IEA). Sir always has
the right to begin except if defendant admits all the facts. So now he can
lead evidence on both issues. But as per rule 3, for issue 2, burden of proof
on vasu. So now sir can use rule 3 and ask vasu to lead evidence first and

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 then lead evidence in rebuttal. Then vasu can again reply to sir’s rebuttal
and then sir can have the last word on the case generally.

Persuasive burden – burden of proof to prove something properly v.

evidentiary burden – whose turn is it? See below.

Two rules:
1. Plaintiff has right and duty to begin unless defendant admits all facts
pleaded by plaintiff and raises additional law or fact – order 18 rule 1
2. Even though you have right and duty to begin, whether plaintiff or
defendant, if multiple issues and different burdens of proof, you have the
privilege to reserve your evidence on some issues and can ask the
opponent to go first and then you can rebut. If you wish, you can choose
to waive this right.

Right to begin and privilege to rebut are contradictory.

Statement of fact – vasu and I met on 19.09.2020.

Evidentiary statement – pro note P1 proves that vasu has executed with his
handwriting a liability of 30 lakhs payable with interest.

Manjit Singh Lassi vs Col. Gurcharan Singh 2004 SCC Online P&H 994
(SJ)- where Defendant admits the facts stated in the Plaint but sets up
additional facts the Defendant would have the right to start.

Gurucharan singh filed a plea on father’s property. His bro admitted the fact
of relationship between the parties – that both guru and bro entitled to
father’s property. But bro said father executed a will in his favour. So
normally guru should have begun, but because lassi (bro) admitted all the
facts and contended an additional fact that there was a will, so question was
if defendant had the right to begin? Trial court posted for evidence of the
defendant first. HC rejected appeal and said defendant rejected some facts
and set up new facts so he should start.

B.H. Ravindra Pai vs Smt K. Sulochana Bhandarkar 1981 ILR (KAR) 708
(SJ)- Plaintiff has the right to begin evidence but can reserve the right to
lead rebuttal evidence on issues that the Defendant has to prove.

(a) What is the procedure for addressing oral arguments and submitting
written arguments? Order 18 Rule 3.

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 (b) Why should a party appear before the other witnesses to be called on
his behalf? Order 18 Rule 3A.

(c) What was the procedure for recording the chief examination of a
witness before the 1999/2002 amendments? How would a document be
marked in court? What is the procedure and the practice now after the
amendments? Order 18 Rules 4 and 19. What is the procedure regarding
the proof and admissibility of documents filed along with the affidavit? Do
you think that the 1999/2002 amendments have helped or not?

(d) What is the manner of taking down evidence in court in appealable and
unappealable cases? Order 18 Rules 5 to 9, 13.

(e) When might the court take down not only the answer but even the
question asked?Order 18 Rule 10.

(f) What is the procedure to be followed whenever a question put to a

witness is objected to by the opposite side?Order 18 Rule 11.

(g) If one judge has recorded evidence but gets transferred before the
conclusion of the trial, can the new judge proceed from stage where his
predecessor stopped?Order 18 Rule 15.

(h) When can a witness be examined immediately in disruption of the

normal sequence of trial ?Order 18 Rule 16.

(i) When can a witness be recalled and examined once again?Order 18 Rule
17.Is this a power of the court or is it a right of the party? Altaf Hussain vs
Nasreen Zahra AIR 1978 All 515 – power not to be used for filling up
lacuna in the evidence – only in exceptional cases, for removing ambiguities
and clarifying statements the court may use the power. Steelage Industries
Ltd vs Smt Chander Bagai AIR 1992 Bom 406.

(j) Can the court inspect any property or thing and use the memorandum
of facts recorded as evidence?Order 18 Rule 18.

● Ugam Singh vs Kesari Mal AIR 1971 SC 2540.

● Kesssowji Issur vs The Great Indian Peninsula Railway Co 11

CWN 721 (PC).
● Hurparshad vs Sheo Dayal 3 IA 259.

● Buckingham vs Daily News Ltd 1956 (2) QB 534.

What is the procedure for addressing oral arguments and submitting written
arguments?

- Rule 2 – Statement and production of evidence.

Should the party appear before the witnesses are called on its behalf?

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- Order XVIII, Rule 3A: Party to appear before other witnesses.

- Rule 4: Recording of evidence – if the document is admitted, it is marked by the

judge. Chief exam will be on affidavit.

- Proviso – for the documents with the affidavit, the proof and admissibility of such
documents are subject to the order of the court.

- In the newly amended rules, Chief examination of witnesses is now done by

affidavit and they don’t have to come to for the chief examination– Affidavits are
not document and they are just filed, not marked - how is the document marked
then, if the witness doesn’t come to the box? So now in Karnataka, the Chief is
done by affidavit and the witness comes to get the document marked and then gets
cross-examined. How does the other side object to the procedure of recording such
statement? Maharashtra case says you can object via applications filed and maybe
argue at the stage of weight about how it is irrelevant, hearsay etc and should not
be considered.

- Affidavit evidence is inferior evidence – IEA does not apply to affidavits at all.
Affidavits are considered important because of expediency measures, but what sort
of objections can even be raised?

- 4(2): Evidence of the witness in attendance, whose affidavit has been furnished to
the court, shall be taken by the Court or by the Commission appointed by it – this
is rather useless and never actually used.

- 4(3): Evidence must be recorded as soon as the evidence is given by the witness.

- Proviso to 4(4) – if there is any objection during the recording of evidence before
the Commissioner shall be recorded and decided by the Court at the stage of
arguments.

- Cross examination and re-examination are done in accordance with the old
procedure only.

- Rule 10: Any particular question and answer may be taken down – the questions
are usually not taken down, but certain questions may be recorded upon the
request by the counsel.

- Rule 12: Remarks on demeanour of witnesses – material remarks on the

witnesses while under circumstances.

- Rule 13: Memorandum of evidence in unappealable cases.

- Rule 15: Power to deal with evidence taken before another judge.

Steelage Industries v Shrimati Chander Bagai:

- The chief exam was conducted by a junior advocate, cross was also conducted by
the opposing counsel. The next day, the senior advocate came and said that he
couldn’t attend the chief because he met with an accident and couldn’t

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communicate the same to the junior, which is why the junior did the chief –
several aspects were not covered by the junior and given the circumstances, the
senior said that under O13, R17, the witness should be recalled and examined.
The opposing Counsel objected. The trial court allowed the application. The
Bombay HC upheld the order of the trial court, but held that under O13, R17 only
the court could recall and examine the witness and not the counsels involved in
the case – since it is a power of the court.

- Re-examination is a very controlled process and not many new matters can be
introduced – can be permitted to cross examination though it is not very clear this
will happen.

- Rule 18: Power of the Court to inspect. ‘PROPERTY OR THING’ – not ‘situation or
conditions’.

Ugam Singh v Kesari Mal:

- Plaintiffs filed a suit seeking declaration that they were carrying out some
religious ceremonies in line with the tenets of the Digambara Jain sect. The
defendants contended that they were conducting the religious ceremonies in line
with the Shwetabara Jain tenets. The question was whether the idol was
Digambara or Shwetabara – look at whether it had eyes, loin cloth etc.

- The judge went to the idol and did a spot inspection – recorded what he saw and
brought it back to the court hall to make a decision – the matter went to the SC,
saying that the Trial judge had based his decision solely on his out-of-court
experience and he was not cross-examined and such evidence should not be
allowed in the trial. The SC held that under O18, R18, the power is to go to the site
to get a better understanding of the case presented in court and not to record fresh
evidence to decide the matter. The SC, however, did not overturn the judgement of
the trial court since it was based on material other than the site inspection report.

Indian courts frowned upon courts collecting evidence. O18 R18 is not to collect
evidence. The judge can visit the spot and make a memorandum for the limited
purpose of appreciating the evidence already on record.

● Kesssowji Issur vs The Great Indian Peninsula Railway Co 11 CWN 721 (PC).
Facts:

Whether the results of a spot inspecton can be treated as evidence and taken on
record to decide a case?

Page 49 of 127
Plaintiff filed case of personal injury suffered by him on account of defendant
railways company. He was passenger from Bombay to sion. On that evening, train
overshot platform. He said defendant didn’t provide adequate lighting or warning
that train overshot platform. Thus they were negligent. The defendents said there
was sufficient light and accident due to plaintiff himself. One of the imp Qs
whether there was enough light on that night such that a passenger could safely
alight. TC decreed suit for damages. Railway company appealed. Appellate court
visited site of accident and conducted spot inspection and concluded that there
was sufficient light and passenger taking ordinary care could not have suffered
injury. So train light was sufficient. Appellant court reversed the finding. Plaintiff
filed appeal with privy council. PC criticized appellate court and their method of
conducting a spot inspection and finalizing the case on that instead of evidence on
record. Appellate court did a meddlesome intervention. PC appalled by inspection
done on a later night, so how can you conclude there was lighting on the actual
day? Another problem is appellate court did this, not even TC, going beyond their
powers. Judgement of appellate court set aside. Basic point is that in adversarial
system, judge himself cannot be a witness and bring evidence on record.

Connected principle: judge cannot bring on record personal knowledge of facts.

Hurparshad vs Sheo Dayal 3 IA 259.

Lower court judge referred to his own personal knowledge of the family to
determine if a partition has happened or not. PC said no, it ought to be known that
judge cannot, without getting evidence, import his own knowledge of facts. This
could become rumours or hearsay and this evidence would not be admissible if he
were to be examined as a witness.

● Buckingham vs Daily News Ltd 1956 (2) QB 534.

The traditional view was changed by Lord Denning. Defendants were newspaper
publishers and plaintiff was employed to work in the rotary machines. Given the
task of cleaning the tucking blades. Whilst working, he suffered a cut which
required 11 stitches. He alleged that employers had failed in their duty of providing
safe work. He should have been given long handled equipment to clean the
machine rather than a dish cloth. During the trial, with the mutual consent of
both parties, judge was invited to view the machine. Accompanied by both parties
and counsels. Plaintiff even demonstrated what had happened – judge dismissed
suit on the basis of spot inspection even though defendant did not provide
evidence. On appeal, plaintiff said judge should not have substituted his
knowledge for evidence advanced on record. But Appellate court likened the spot
inspection outside the court to the inspection of real evidence inside the court.
Buckingham – spot inspection can be allowed.

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Commissions:

S.75-78

BASIC READING

● Order 18,sections 101 to 106 of the Indian Evidence Act, 1872.

● Manjit Singh Lassi vs Col. Gurcharan Singh 2004 SCC Online P&H 994 (SJ)

● B.H. Ravindra Pai vs Smt K. Sulochana Bhandarkar 1981 ILR (KAR) 708 (SJ)

● Altaf Hussain vs Nasreen Zahra AIR 1978 All 515

● Steelage Industries Ltd vs Smt Chander Bagai AIR 1992 Bom 406.
● Ugam Singh vs Kesari Mal AIR 1971 SC 2540.

● Kesssowji Issur vs The Great Indian Peninsula Railway Co 11 CWN 721 (PC).

● Hurparshad vs Sheo Dayal 3 IA 259.

● Buckingham vs Daily News Ltd 1956 (2) QB 534.

FURTHER READING

● Takwani Pages: 399 to 403.

THE TRIAL (continued)

TOPIC D:

AFFIDAVITS

(a) What is an affidavit? A sworn statement in writing made especially

under oath; a declaration of facts made in writing and sworn before a
person having authority to administer oath. It should be drawn up in the
first person.
CPC Oath – 139
IPC 191 PERJURY, PUNISHMENT 193

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 (b) When can affidavits be used as evidence? Section 1 of the Indian
Evidence Act, 1872 makes the Act inapplicable to affidavits. However,
Section 30 read with Order XIX of the code provide for evidence to be
given by affidavits if (a) the court has ordered any fact to be proved by
affidavit (Order 19 Rule 1) or (b) upon any application filed (Order 19
Rule 2).

Affidavit is not evidence under the IEA.

EXCEPTIONS:
1. Scholars have argued that order 19 rule 1 read with s. 30 of cpc makes
an exception to the general principle that affidavits are not admissible.
2. If the court has ordered it, then you can use it as evidence, otherwise
not.
And obviously under order 18, rule 4 – evidence in chief through affidavits.
3. Upon any application, parties may file asking for cross exam based on
affidavit
Weak form of evidence.

Rule 6 can be checked for guidelines on affidavit.

Rasik lal:

You must file a memo on the grounds of the chief exam – affidavit violating IEA

SmtSudha Devi vs M. P. Narayanan (1988) 3 SCC 366: affidavits not

included in the definition of evidence in the Indian Evidence Act, 1872,
and can only be used as evidence if the court passes an order under
Order 19 Rules 1 and 2.

Yohannan Samuel vs Mathew John (1991) 1 KLJ 605. Plaintiff used

the formally prepared affidavits of PW witnesses and got the docs
marked to support his case. TC relied upon these exhibits as evidence
and the suit was decreed based on the acceptance of affidavits which
witnesses had sworn to before the trial. SC noted that under S.1 of IEA,
the act itself is inapplicable to affidavits. It cannot be treated as evidence
unless specifically permitted by the court under order 19 rule 1 read
with S.30. order stating specifically – let this fact be proved by affidavit.

(c) What are the matters to which an affidavit should be confined?

Order 19 Rule 3.

PadmabatiDasivsRasikLalDhar ILR 1909 Vol 37 pg 259: the

provisions of Order 19 Rule 3 must be strictly observed.

State of Bombay vsPurushottam Jog Naik (CB) AIR 1952 SC 317:

Constitution Bench – Vivian Bose. Order 19 rule 3 would need to be

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 complied even in case of affidavits filed in writ proceedings.

(d) What is the effect of swearing to a false affidavit? Offence of perjury

under section 191 IPC.

Additional safeguards are incorporated in the law wrt affidavits, as safeguards of

cross-examination and oath are not there.

- Order 19, Rule 3: Matters to which affidavits shall be confined – such facts that the
deponent is able of his own knowledge to prove – this excludes statements made on
belief, opinion and information because these are nearly impossible to verify without
the safeguards of an oral examination – On interlocutory applications, statements of
belief may be admitted, provided the grounds thereof are stated.

Padmavati Dhasi – The court held that O19, R3 must be strictly adhered to – the
statements must be clearly delineated on the basis of knowledge and belief. If the
grounds of belief are statement, the court is in a better position to adjudge whether
such beliefs can be relied upon.

State of Bombay v Jyotimati: In writ petitions relating to the detention under the
Preventive Detention Act, the Secretary of the Government had sworn on the
affidavit – all of the statements were true to the best of his information and belief –
they endorsed Padmavati Daasi and rejected the affidavit as the facts were not
based on their knowledge the format under O19, R3 must be followed strictly
whenever you swear to an affidavit.

What is the effect of swearing to a false affidavit? – Perjury under the 191 IPC.

Affidavits can only be used when there is a statutory exception providing for their
use – but it should comply with Rule 3.

Jones v National Coal Board [UK]:

- Deceased was employed in a coal mine and died due to a fall of the roof in the
mine – widow claimed damages stating that the employers ought to have
maintained the roof – the suit was dismissed and the widow appealed – one of the
grounds of appeal was that the judge had excessively intervened in the proceedings
and it became impossible for her counsel to examine witnesses – the judge almost
did the examination himself – the judge kept intervening and stopping the counsel
from conducting the examination thoroughly – the Court of Appeal stated that the
behaviour of the judge was excessive of what the court envisages such behaviour to
be – judges have a more passive role in the UK system.

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BASIC READING

● Section 1 of the Indian Evidence Act, 1872, Section 30 , Order XIX of the
code.
● SmtSudha Devi vs M. P. Narayanan (1988) 3 SCC 366

● Yohannan Samuel vs Mathew John (1991) 1 KLJ 605.

● PadmabatiDasivsRasikLalDhar ILR 1909 Vol 37 pg 259

● State of Bombay vsPurushottam Jog Naik (CB) AIR 1952 SC 317

ADDITIONAL READING

● Takwani Pages: 315 to 317.

TOPIC E: COMMISSIONS

(a) Sections 75 to 78 and Order 26.

(b) What are the different commissions that can be issued and which of them
relate to the fact-finding process? Section 75.

(c) Why does it become necessary to issue commissions in the fact-finding

process? Can they be issued on application orsuomotu?

(d) What are the pre-requisites for the issue of commissions to examine
witnesses? Have these been watered down by the 1999/2002 amendments?
Now by virtue of the insertion of Rule 4A the requirements in Rules 1, 4
and 8 appear to have been rendered redundant. Because under order 18,
chief exam by affidavit.

(e) What is the crucial difference between a judge making a spot inspection
and a commissioner making the very same spot inspection that renders the
report of the commissioner admissible? The report of the Commissioner and
the evidence taken by him shall be evidence in the suit and shall form a
part of the record. Crucially, the court or any of the parties, with the
permission of the court, may examine the commissioner.(Order26 Rule
10(2)).

(f) Who pays the expenses of the commissioner? The Court may order the party

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 for whose benefit or at whose instance the commission is issued that the
expenses be paid into court. Order 26 Rule 15. If it is suo motu, both
parties pay equally.

(g) What is the procedure to be followed before the Commissioner? Rules 16 to

18, Order 26.

(h) Cases where Commissioners appointed :

AmarendraPratap Singh vsTejBahadurPrajapati AIR 2004 SC 3782:

matter remanded to the trial court with a direction that the trial court shall
appoint a commissioner to determine the extent of encroachment.

Praga Tools Corporation Limited vsMahaboobunnissa Begum 2001(6)

SCC 238: remand by the Supreme Court with a direction to get the lands
surveyed through a surveyor and determine in which village the lands were
situated.
AP village allotted land to praga tools. Plaintiff contended that she was
actual owner of the lands. But state usurped it. Lands were supposed to be
surveyed through a land surveyor. Commissioner to investigate matters and
give a report. S.75 and order 26 make it clear that court can act suo motu
so it is permissible.

KumariVermavs State of Kerala AIR 2006 SC 3048: High Court directed

Forest Tribunal to appoint a Commissioner to determine the extent of
cardamom plantation. Approved by the Supreme Court.

ShardavsDharmpal AIR 2003 SC3450: In a divorce case, petitioner sought

direction for medical examination of wife on the ground of lunacy – held that
such a direction could be issued to appoint a medical expert. Failure to
comply would justify adverse inference being drawn. SC said lower court
had the power under order 26 rule 10A read w s 151 of the code to do so.
Court can do so suo motu in cases of mental illness especially.

Code is becoming quite inquisitorial. But in some cases, simply cant get to
te truth without commissioners making some inquiry.

(i) How much weight does the report of the Commissioner carry? Chandan
Mull Indra Kumar vsChimanLalGirdhar Das Parekh AIR 1940 PC 3:
should not easily overrule report of the Commissioner whose integrity and
carefulness are unquestioned.

(j) The rationale for appointment of Commissioners appears to be that it

enables the court to get to the best evidence available.

(k) The English conservative approach: Abbey National Mortgages PLC Vs

Key Surveyors Nationwide Limited 1996 (3) AER 184: the appointment
of a commissioner even on the application of a party deprecated. Order 40
rule 1 of UK rules empowered court to appoint independent experts on the
application of any party. Strict adversarial system. Plaintiffs were mortgage
lenders and made loans to some purchasers of houses. Plaintiffs relied on
valuation surveyers to determine if mortgaged property was valuable enough
or not. Their grievance was that they had been negligent and had overvalued

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 the houses. The judge on the application of the plaintiffs ordered expert to
check valuation. Appeal filed against order. These were bold and innovatory
orders, breaking new ground, even on the application of the party. So in
England and America, court wont intervene in fact finding aspect. Parties
should get their own expert witnesses, court shouldn’t appoint
commissioners. It is adversarial.

BASIC READING

● Sections 75 to 78 and Order 26.

● AmarendraPratap Singh vsTejBahadurPrajapati AIR 2004 SC 3782:

● Praga Tools Corporation Limited vsMahaboobunnissa Begum 2001(6) SCC

238
● KumariVermavs State of Kerala AIR 2006 SC 3048

● ShardavsDharmpal AIR 2003 SC3450

● Chandan Mull Indra Kumar vsChimanLalGirdhar Das Parekh AIR 1940 PC 3

● Abbey National Mortgages PLC Vs Key Surveyors Nationwide Limited 1996

(3) AER 184

ADDITIONAL READING

● Takwani Pages: 322 to 327.

ORDER XVII

- Adjournment only three times, but court relaxes this

rule
- If rule 1 followed, can strengthen the system. But
order 17 rule 1 not a fetter on th court.

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 A. JUDGMENT AND DECREE

(a) Section 33, Order XX.

(b) What is the difference between a judgment, a decree and an order?

Definitions in Section 2(2), 2(9) and 2(14).

JUDGEMENT AND DECREE

- S.33: Judgement and decree.

- Are judgement and decree defined in the Code?

S.2(9) - judgement is the statement given by the judge of the grounds of a decree or
order

[Orders are passed in interlocutory matters] – the reasoning and rationale for the
decree or order. Order is also operative part but it is not a decree.

S.2(2): Decree – formal expression of an adjudication that 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 is the operative part, contains the final
dictat of the court. No reasoning in the decree but will follow the judgement.

- Preliminary decree – judge doesn’t go into too many details, decides the case on
facts – another application for the final decree must be submitted in the same suit –
the preliminary decree is appealable and it cannot be executed because it is
inchoate and not detailed enough for it to be binding.

- The Limitation Act applies to preliminary decrees in terms of when they can be
appealed or not.

- How to distinguish between order and preliminary decree? PD finally determines

the rights of the parties in a fairly conclusive manner on some issues, Order is of an
interlocutory nature.

- If the appeal for the preliminary decree is admitted, then the final decree also
becomes stayed because the preliminary decree is the foundation of the final
decree.

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 (c) What are the requirements of a valid judgment?
● The judgment shall be pronounced in open court (Order 20 Rule 1);
justice not only done, also seem to be done.
● Within 30 or 60 days (in exceptional cases) from the date hearing was
concluded (Order 20 Rule 1);

1[ 21. Judgment when pronounced.—3[(1) The Court, after the case has been heard, shall pronounce

judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the

judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which
due

notice shall be given to the parties or their pleaders:

Provided that where the judgment is not pronounced at once, every endeavour shall be made by the

Court to pronounce the judgment within thirty days from the date on which the hearing of the case
was

concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary

circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment,
and

such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the
case

was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders.]

4[(1) The Commercial Court, Commercial Division, or Commercial Appellate Division, as the case

may be, shall, within ninety days of the conclusion of arguments, pronounce judgment and copies
thereof

shall be issued to all the parties to the dispute through electronic mail or otherwise.]

5[(2) Where a written judgment is to be pronounced, it shall be sufficient if the findings of the Court

on each issue and the final order passed in the case are read out and it shall not be necessary for the
Court

to read out the whole judgment 6***.

(3) The judgment may be pronounced by dictation in open Court to a shorthand writer if the Judge is

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specially empowered by the High Court in this behalf:

Provided that, where the judgment is pronounced by dictation in open Court, the transcript of the

judgment so pronounced shall, after making such correction therein as may be necessary, be signed
by the

judge, bear the date on which it was pronounced, and form a part of the record.]

2. Power to pronounce judgment written by judge's predecessor.—7[A Judge shall] pronounce a

judgment written, but not pronounced, by his predecessor.

● It shall be dated and signed by the judge in open court at the time of
pronouncement (Order 20 Rule 3);
● It should contain a concise statement of the case, the points for
determination, the decision thereon and the reasons for such
decision. (Order 20 Rule 4).
● It shall state its finding on each issue (Order 20 Rule 5) along with
reasoning.

(d) If the formalities of a judgment are not complied with, is the judgment
vitiated?

● Surendra Singh vs State of UP AIR 1954 SC 194but note Order 20

Rule 2.

● Smt. SwaranLata Ghosh vs HK Banerjee 1969(1) SCC 709-

recording of reasons essential. Judge must record the ultimate
mental process leading from the dispute to its resolution.

(e) Are statements recorded by the court as to what transpired in court

conclusive? State of Maharashtra vs Ramdas ShrinivasNayak (1982)
2 SCC 463.
Yes, statements recorded by the court as to what has transpired in
court.
Apply for review to change the record. But then if it is irrefutable before
the appellate court but not before the same judge itself.

REVIEW TO SAME JUDGE, APPEAL TO NEXT COURT.

REVIEW MEANS DISPUTING RECORD, APPEAL WITH IMPLICIT
ACCEPTANCE OF RECORD, BUT CAN CONTEST AN IRREGULARITY.

There could be some irregularity which does not render judgement void,
but gives rise to an irregularity (giving judgement after 90 days). So you

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 can appeal and say since judge has delayed, please don’t award interest
at this percentage etc. but judgement is not vitiated. It can be executed.

But if judge has rendered a judgement which he has not signed or

pronounced at all, then it is void ab initio. So cant be executed.

(f) Can a judgment be corrected once it is signed? Order 20 Rule 3

The judgment shall be dated and signed by the Judge in open Court at
the time of pronouncing it and, when once signed, shall not afterwards
be altered or added, to save as
provided by section 152 or on review s 114.
You can seek a review to correct the record.

[5A. Court to inform parties as to where an appeal lies in cases where parties are not

represented by pleaders.—Except where both the parties are represented by pleaders, the Court
shall,

when it pronounces its judgment in a case subject to appeal, inform the parties present in Court as to
the

Court to which an appeal lies and the period of limitation for the filing of such appeal and place on
record

the information so given to the parties.]

(g) What should be contained in a decree? Order 20 Rule 6.

Judge will record everything that happens in the case right from
pleading to final arguments. If he makes a mistake, then you can take it
up in the appellate court.
But you can’t directly say judge recorded it wrongly or didn’t record it. Don’t
make an allegation against the judge itself unless its easily discernable from
the record itself. Don’t dispute the recorded statements itself.
State of Maharashtra vs Ramdas ShrinivasNayak (1982) 2 SCC 463. SC
said record made by judge as to what transpired in court is irrefutable.

6. Contents of decree.—(1) The decree shall agree with the judgment: it shall contain the number of

the suit, the 1[names and descriptions of the parties, their registered addresses,] and particulars of the

claim, and shall specify clearly the relief granted or other determination of the suit.

(2) The decree shall also state the amount of costs incurred in the suit, and by whom or out of what

property and in what proportions such costs are to be paid.

(3) The Court may direct that the costs payable to one party by the other shall be set off against any

sum which is admitted or found to be due from the former to the latter.

(h) Who draws up the decree?

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 Drawn by the registry of the court. Judge will give reasoning, finding on
each issue and write ‘I therefore hold that all parties are entitled to xyz.
Prelim decree to be passed accordingly’. Then decree bench of the
registry will prepare the decree. They have to figure out what the
operative part of the judgement is.

(i) Can an appeal be filed against the decree without a copy of the same if
decree is not yet drawn? Order 20 Rule 6A.

(j) If the previous judge has vacated office before signing the decree can his
successor sign it? Order 20 Rule 8.

(k) What are the requirements of a decree for recovery of immovable

property? Order 20 Rule 9.

(l) What are the requirements of a decree for delivery of movable property?
Order 20 Rule 10.

(m)When can the defendant seek payment of the decretal sum by

installments or seek postponement? Order 20 Rule 11.

(n) Can the court decree future mesne profits even if not prayed for? Order
20 Rule 12.Gopalakrishna Pillai vs MenakshiAyal AIR 1967 SC 155.

Whenever landlord wants to sue for possession, he will ask for recovery.
Then after lease ends, lessee become unauthorized occupant on
property. Then you cant seek rent after period ends, because he is not
tenant. Now this unauthorized fellow can pay you for staying on property
– that is known as mesne profits, not rent. You can see arrears of rent, if
rent is also remaining. Provisions empowers landlords. But time limit.
Enquiry can be ordered. Mesne profits given as a routine thing.
Suit for recovery of possession, court can grant possession, mesne
property and arrears of rent even without asking.

(o) Why are mesne profits limited to 3 years under Order 20 Rule 12?
ChittooriSubbanna vs KudappaSubbanna AIR 1965 SC 1325.
But mesne profits limited to three years to discourage those who delay
execution of the decree.

(p) What are the requirements of a decree for specific performance of

contract for the sale or lease of immovable property? Order 20 Rule
12A. mustr mention situation of property etc. for moveable property,
mention sum of money payable in the alternative.

(q) What are the requirements of a decree in certain other types of suits?
Administration suits - Order 20 Rule 13. Pre-emption suits- Order 20
Rule 14. Suits for dissolution of partnership- Order 20 Rule 15. Suits
for account between principal and agent – Order 20 Rule 16. Suit for
partition of property or separate possession or share therein – Order 20
Rule 18. Decree where set-off or counter-claim allowed- Order 20 Rule
19.

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 (r) General principles with regard to preliminary and final decrees:
● A preliminary decree is not executable unless a final decree is applied
for and passed. SankarBalwantLokhande vs
ChandrakantBalwantLokhande AIR 1995 SC 1211.
● If appeal against preliminary decree succeeds, the final decree
automatically falls to the ground.
● Residuary power to pass preliminary decree – Order 20 Rule 16.

Certain conditions or certain types of decrees:

- Order 20, Rule 12A: Decree for specific performance of contract for the sale
or lease of immoveable property – the decree must specify the period in which the
payment shall be made.

- O20, Rule 13: Administration Suit – Court must order a preliminary decree
in these cases.

- Rule 14: Decree in pre-emption suit

- Rule 15: Decree in suit for dissolution of partnership – Court may pass a
preliminary decree [Contrast with administration suit].

- Rule 16: Decree in suit for account between Principal and agent – Shall pass
preliminary decree

- Rule 17: Special Directions as to accounts

BASIC READING

● Sections 33, 2(2), 2(9), 2(14) and Order XX of CPC, 1908;

● Surendra Singh vs State of UP AIR 1954 SC 194;

● Smt. SwaranLata Ghosh vs HK Banerjee 1969(1) SCC 709;

● State of Maharashtra vs RamdasShrinivasNayak (1982) 2 SCC

463;
● Gopalakrishna Pillai vs MenakshiAyal AIR 1967 SC 155;

● ChittooriSubbanna vs KudappaSubbanna AIR 1965 SC 1325;

● SankarBalwantLokhande vs ChandrakantBalwantLokhande AIR

1995 SC 1211

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 ⮚ INTEREST

INTEREST:

- S. 34: Interest – must be a decree claiming money – Date of suit to date of

decree, there can be reasonable interest - date of the decree to date of payment,
the rate should be reasonable and not exceed 6%. If it is a commercial transaction,
the rate may be more than 6% p.a., but not exceed the contractual rate of interest
or where there is no contractual rate of interest. Explanation II defines a
commercial transaction for the section.

- Court has the discretion to award interest, even when not prayed for in the
plaint.

Union of India v Watkins Mayers:

- Interest Act 1978 –

Section 3: Power of the Court to allow interest –

(1) In any proceedings for the recovery of any debt or damages or in any
proceedings in which a claim for interest in respect of any debt or damages already
paid is made, the court may, if it thinks fit, allow interest to the person entitled to
the debt or damages or to the person making such claim, as the case may be, at a
rate not exceeding the current rate of interest, for the whole or part of the following
period, that is to say,—

(a) if the proceedings relate to a debt payable by virtue of a written instrument at a

certain time, then, from the date when the debt is payable to the date of institution
of the proceedings;

(b) if the proceedings do not relate to any such debt, then, from the date mentioned
in this regard in a written notice given by the person entitled or the person making
the claim to the person liable that interest will be claimed, to the date of institution
of the proceedings: Provided that where the amount of the debt or damages has
been repaid before the institution of the proceedings, interest shall not be allowed
under this section for the period after such repayment.

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(2) Where, in any such proceedings as are mentioned in sub-section (1),—

(a) judgment, order or award is given for a sum which, apart from interest on
damages, exceeds four thousand rupees, and

(b) the sum represents or includes damages in respect of personal injuries to the
plaintiff or any other person, or in respect of a person’s death, then, the power
conferred by that sub-section shall be exercised so as to include in that sum
interest on those damages or on such part of them as the court considers
appropriate for the whole or part of the period from the date mentioned in the
notice to the date of institution of the proceedings, unless the court is satisfied
that there are special reasons why no interest should be given in respect of those
damages.

(3) Nothing in this section,—

(a) shall apply in relation to—

(i) any debt or damages upon which interest is payable as of right, by virtue of any
agreement; or

(ii) any debt or damages upon which payment of interest is barred, by virtue of an
express agreement;

(b) shall affect—

(i) the compensation recoverable for the dishonour of a bill of exchange, promissory
note or cheque, as defined in the Negotiable Instruments Act, 1881 (26 of 1881); or
(ii) the provisions of rule 2 of Order II of the First Schedule to the Code of Civil
Procedure, 1908 (5 of 1908); (c) shall empower the court to award interest upon
interest.

(a) Section 34; Order 24 Rule 3.

(b) What is interest? How would you define it?

(c) What are the 3 stages when interest can be allowed and what are the
parameters for each type?

● Section 34.

● Union of India vs Watkins Mayor and Co AIR 1966 SC 275.

Plaintiff sued UoI for compensation over storage of iron suits from 1944
to 1949. Contended that in 1944, UoI had placed supply of several
metal drums from plaintiff company. Agreement said raw materials –
600 tonnes of iron sheets – supplied by UoI to Watkins mayor and
company. Then plaintiffs would fabricate metal drums wih those sheets

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 and send it back. Then UoI suddenly cancelled contract by a letter.
Plaintiff company issued a notice to remove the goods. But Goi removed
only by 1949, instead of 1944. Contract was cancelled but from july
1944 to may 1949, iron sheets were maintained at plaintiffs factory. In
this case, there is no statute or agreement prior to institution of suit to
collect interest. Interest act not applicable because sum due not a debt
and not a certain sum. So not possible under S.3 of the interest act.
Plaintiff not entitled to decree for interest, but only to principal sum.
Unless ur able to convince the court that ur entitled by substantive law,
agreement or notice, you cant get interest prior to the institution of the
suit.

But interest when the case is pending, court will determine.

Interest after decree is passed, 6% and for commercial transactions,
bank rate.

● Mahesh Chandra Bansal vs Krishna SwaroopSinghal 1997 (10) SCC

681.

(d) What are the salient features of the Interest Act, 1978?

Rate not exceeding current rate of interest

If youre not able to locate interest statutorily:

Is there a debt and is it evidenced by a written instrument? Then also youre

entitled to interest

Even if no written instrument, written notice + debt payable from the date of the
issuance of the written notice

BASIC READING
● Section 34 and Order 24 Rule 3 of CPC, 1908.

● Union of India vs Watkins Mayor and Co AIR 1966 SC 275

● Mahesh Chandra Bansal vs Krishna SwaroopSinghal 1997 (10) SCC

681

⮚ COSTS

● Sections 35, 35A and 35B; Order XXA, Order 20 Rule 6; Karnataka Civil

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 Rules of Practice 1967.
● Costs should follow the event. The loser should pays the costs of the suit.

● Order 20A – costs officer + rules in each state. Winner’s lawyer should file a
statement in court covering all the costs made by her.
● Costs for vexatious suits

● What are the differences between award of costs under sections 35, 35A and
35B?

● The general principle is that costs should follow the event. Jugraj Singh vs
Jaswant Singh 1970(2) SCC 386; Kali Prasad Singh vs Ram Prasad
Singh (1974) 1 SCC 182.

17 years property battle. Then the losing party argued pls don’t award costs,
we are both now paupers. Court process was too lengthy. But sc said no,
costs must follow the event. That is a general principle.

But generally cap on costs. So not that hurtful to loser or beneficial to

winner.

● Ashok Kumar Mittal vs Ram Kumar Gupta (2009) 2 SCC 656: under
section 35 award of costs is discretionary; the primary object is to
recompense a litigant for the expenses incurred by him in the litigation; it is
paid by the loser to the winner; present system of meagre costs deprecated.
● Plaintiff sued for specific performance of agreement to sell. TC decreed, HC
dismissed appeal. HC found plaintiff lied by stating there was concluded
contract, plaintiff and also defendant lied. Both were liars. Both deserved to
be prosecuted. Instead of directing prosecution under 191 IPC. HC decided
costs could be incurred by them to be paid to the state. HC imposed
exemplary costs of 1 lakh each, deposit to Delhi HC LSC. SLP filed in SC
that costs awarded were disproportionate, illegal, unwarranted etc. SLP
dismissed on merits but observations were made. SC said usually costs
between parties. But restrictions mentioned in 35, 35A, 35B etc don’t apply
to writ but only to civil suits. But they noted that present costs are too less
even for civil suits. Whether we should adopt western model, law comm
should take up? Even though this cost may not be legal (of Rs.1 lakh), now
we’re doing under 136, we won’t interfere with illegal order. But instead of
paying to LSC, it should be paid to state govt.
MORAL: costs under 35 are punitive, can’t exceed 3000. 35A compensatory – but
well regulated in civil rules of practice. But present system of costs v sad ☹

● T.Aravindam vs TV Satyapal (1977) 4 SCC 467: in frivolous and vexatious

cases trial judge should impose punitive costs under section 35A.

● Tenant contested eviction petition by landlord. HC passed a decree for

eviction. Tenant asked for 6 months time, court allowed. Then the landlord

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 tried to execute the decree for eviction. At that stage, tenant’s son filed
frivolous suit seeking injunction against execution. That went till SC,
contested for several years. Finally justice Krishna iyer dismissed the case
that it was res judicata and abuse of process. Reminded TC that they could
have applied 35A and taken deterrent action if litigation is for vexatious
motives. Because decree binding on son under S.11.

● Even if decree is obtained, a fresh suit to set aside decree maintainable on

the ground of fraud.

● What is the procedure adopted for taxation of costs? Rules 99, 100,
Karnataka Civil Rules of Practice 1967.

BASIC READING
● Sections 35, 35A and 35B, Order XXA and Order 20 Rule 6 of CPC,
1908; Karnataka Civil Rules of Practice 1967;
● Jugraj Singh vs Jaswant Singh 1970(2) SCC 386;

● Kali Prasad Singh vs Ram Prasad Singh (1974) 1 SCC 182;

● Ashok Kumar Mittal vs Ram Kumar Gupta (2009) 2 SCC 656;

● T.Aravindam vs TV Satyapal (1977) 4 SCC 467

ADDITIONAL READING
Takwani Pages: 404 to 417.

WEEK 4

A. DEATH, MARRIAGE AND INSOLVENCY OF PARTIES

(a) Order 22.

(b) When does the suit abate upon the death of a Plaintiff or Defendant?
Order 22, Rule 1. What is the meaning of the phrase “right to sue”? Is it
the same as “cause of action”? The “right to sue” in Order 22 means the
right to bring a suit asserting a right to the same relief which the
deceased Plaintiff asserted at the time of his death.

It abates only if it is a personal claim, like defamation.

(c) What determines whether the right to sue survives or not? The
substantive law inter alia, section 37 of the Indian Contract Act, section
306 of the Indian Succession Act, etc.

(d) Where there are multiple Plaintiffs or Defendants and upon the death of

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 1 of them, the right to sue survives to the remaining parties alone, what
is the procedure? Order 22 Rule 2: Court shall make an entry to that
effect and the suit will proceed. No need to make any application, court
will delete the name of the plaintiff.

(e) Where a sole Plaintiff dies or 1 of two of more Plaintiffs dies and the right
to sue does not survive to the remaining parties alone, then what is the
procedure? Order 22 Rule 3: On an application made in that behalf, the
court shall cause the legal representatives of the deceased Plaintiff to be
made parties and then proceed with the suit. If within the time limited
by law (ie, 90 days under Article 120 of the Limitation Act), no
application is made, the suit shall abate.

(f) Is any order required to be made where the suit abates? No. It happens
automatically.

(g) Where a sole Defendant dies or 1 of two of more Defendants dies and the
right to sue does not survive against the remaining parties alone, then
what is the procedure? Order 22 Rule 4: On an application made in that
behalf, the court shall cause the legal representatives of the deceased
Defendant to be made parties and then proceed with the suit. If within
the time limited by law (ie, 90 days under Article 120 of the Limitation
Act), no application is made, the suit shall abate.

(h) When can the Court exempt the Plaintiff from substituting the legal
representatives of a deceased Defendant? Order 22, Rule 4.

(i) If the suit has already abated as a consequence of not bringing the legal
representatives on record within the time specified in Article 120
Limitation Act, what is the procedure? Application under Order 22 Rule
9 to set aside the abatement to be filed within a further period of 60 days
to set aside the abatement (Article 121). If even the 60-day period has
expired, then an application under section 5 of the Limitation Act will
also have to be filed explaining the delay and seeking condonation
thereof.

(j) Is the fact that the Plaintiff was ignorant of the death of the Defendant
relevant in condoning the delay? Yes. Order 22 Rule 4(5).

(k) What is the procedure where there are no legal representatives? Order
22 Rule 4A.

(l) If there is a dispute as to who the legal representatives are, how is that
dispute to be resolved? Order 22 Rule 5.

(m)Can a suit abate by reason of death after hearing of the case has been
concluded? No. Order 22 Rule 6. Can a judgment be pronounced
against a dead person?

(n) Does a fresh suit lie on the same cause of action as a suit that has
abated? No. Order 22 Rule 9. But what does the explanation say?

(o) Duty of pleader to communicate to court death of a party- Order 22

Rule 10A.

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(p) If there are multiple Plaintiffs or Defendants and one of them dies, does
the suit abate as a whole or only insofar as the deceased Plaintiff or
Defendant is concerned? State of Punjab vsNathu Ram AIR 1962 SC
89.

(q) If all the legal representatives of a deceased party are not impleaded,
what is the effect? DolaiMalikovsKrushna Chandra Patnaik AIR 1967
SC 49.

Suit by 11 plaintiffs for occupancy rights. Suit resisted by the

defendents. Suit dismissed against plaintiffs. Plaintiffs appealed to first
court during pendency, dolai died off. His widow and major son brought
on record as LRs. The judge allowed appeal and gave declaration that all
11 plaintiffs entitled to occupancy rights + widow, son. Appeal to SC by
widow and son, because they lost case in second appellate court. SC
said if plaintiff has proceeded bona fide and persons who sued are legal
representatives, whole estate would be bound including legal heirs.
CRUX whether application is a bona fide one after due enquiry. If fraud
or collusion, then not allowed.

(r) SaraswathiAmmalvs Lakshmi AIR 1989 Mad 216: tricky question

involving death of a husband in a matrimonial case…do you think the
judgment of the High Court was correct?
Husband sought divorce on gournds of desertation. Ex parte decree.
Husband died after decree. Now wife said I didn’t even know about this
case. She applied under order 9 rule 13 to set aside ex parte decree.
Husband is dead, suit is abated, ur appeal is part of suit cannot be filed.

(s) What does Order 22 provide regarding abatement by marriage of a

female party? Order 22 Rule 7.

(t) What does Order 22 provide with regard to abatement by reason of

insolvency? Order 22 Rule 8.

(u) What is the procedure in case of assignment during the pendency of a

suit? Order 22 Rule 10.

BASIC READING
● Order XXII of CPC, 1908;

● State of Punjab vs Nathu Ram AIR 1962 SC 89;

● DolaiMaliko vs Krushna Chandra Patnaik AIR 1967 SC 49;

● SaraswathiAmmal vs Lakshmi AIR 1989 Mad 216

ADDITIONAL READING

Page 69 of 127
 Takwani Pages: 375 to 390.

B. WITHDRAWAL AND ADJUSTMENT OF SUITS

(a) Order 23.

(b) Does the Plaintiff have an unqualified right to withdraw the suit? Order
23 Rule 1. M/s Hulas RaiBaijNathvs Firm KB Bass and Co AIR 1968
SC 111. Also S. RathinavelChettiarvs V. Sivaraman1999(4) SCC 89.

(c) When should the Plaintiff seek leave to withdraw the suit? Order 23
Rule 1: when there is a formal defect or other sufficient grounds and he
wishes to obtain permission to withdraw with liberty to institute a fresh
suit or if the Plaintiff is a minor, etc.

(d) If a suit is withdrawn without permission, can a fresh suit be filed on the
same subject-matter? No. Order 23 Rule 1 bars it.

(e) What are the requirements of a valid compromise under Order 23 Rule
3?

(f) Does the subject-matter of the compromise have to be the same as the
subject-matter of the suit? Order 23 Rule 3.

(g) How can a compromise decree be challenged? Order 23 Rule 3A.

Section 96 read with Order 43 Rule 1A. HorilvsKeshav (2012) 5 SCC
525.

(h) What is the procedure for entering into a compromise in a representative

suit? Order 23 Rule 3B.

(i) Who is liable for the costs when a suit is withdrawn? Order 23 Rule 1.

WITHDRAWAL AND ADJUSTMENT OF SUITS

- Order 23

- Rule 1: Withdrawal of suit or part abandonment of claim

Hulas Rai Baijnath c Firm KB Bass and co

- Does plaintiff have an unconditional right to withdraw the suit at any given
point of time?

- A person instituted a suit for rendition of accounts of the partnership firm

against the partner, the defendant. After a great deal of the suit was done, there
was an application for unconditional withdrawal. The defendant objected saying
that in cases of rendition of accounts, the defendant is entitled to obtain a decree

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in their favour and the plaintiff’s application defeats the defendant’s rights. The
Trial Court held that the application for withdrawal was unconditional and def
could only get costs.

- SC said that O23, R1 gives the plaintiff an unconditional right to the

plaintiff to withdraw at any stage of the suit – however, if there comes about a
vested right to the opponent in the course of the proceedings, then this
unconditional right does not arise – the application may be rejected. A vested right
accrues in cases where a preliminary decree has been passed in a partition suit
(rights have crystallized), but in this case, no preliminary decree has been passed
and the plaintiff can withdraw the suit and will only have to pay costs – O23 says
no fresh suit on the same subject matter.

- Rule 3: Requirements of a valid compromise – must be written and signed

by both parties, the compromise must be lawful (Void and voidable contracts are
not permitted under this section)

- Rule 3A: How can a compromise decree be challenged? What remedies are
available against a compromise decree? S.96 r.w. O43, Rule 1A – Appeal from
Original decree –allowed for decrees of court with the consent of parties – Rule
1A(2): Right to challenge non-appealable orders in appeal against decrees – whilst
under S.96, an appeal is permissible against a compromised decree, Rule 1A(2)
says that an appellant can contest a decree on the ground that the compromise
should or should not have been recorded.

Koral v Keshav

- A person had suffered a decree in a suit under the UP Land Reforms Act
1950 – his son filed a suit subsequently, seeking a decelaration that the previous
suit against his father was fraudulent and not binding upon him – plaintiff stated
that the earlier decree has ended in a compromise, but the compromise petition
was not signed by his father and his sign was forged – he had not even attended
court and someone else had impersonated the father and the father had died by
the time the compromise decree was signed.

- The SC said that O23, R3A also covers a decree based on fraudulent
compromise – doesn’t necessarily have to be illegal consideration – therefore, you
cannot file a suit, but the only remedy is to appeal under S.96 r.w. O43, Rule 1A.
Since the decree in this case was filed by a revenue court, it was not a decree
under Order 23, Rule3A and that’s the only reason the suit can continue

- Rule 3B: No agreement or compromise to be entered into in a representative

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suit without leave of court – to ensure the interests of the minor are met

- Who is liable for costs when suit is withdrawn? Order 23, Rule 1 – the
person who withdraws shall be liable for costs

BASIC READING
● Order XXIII of CPC, 1908;

● M/s Hulas RaiBaijNath vs Firm KB Bass and Co AIR 1968 SC

111;
● S. RathinavelChettiarvs V. Sivaraman 1999(4) SCC 89

● Horil vs Keshav (2012) 5 SCC 525

ADDITIONAL READING
Takwani Pages: 363 to 374.

C. INTERLOCUTORY ORDERS

Until mail judgement and decree can be given, grant some interlocutory relief
during the proceeding.

(a) Sections 94 and 95; Orders 38, 39, 40 (possibly 24 and 25 also).

94. Supplemental proceedings.—In order to prevent the ends of justice from being defeated the

Court may, if it is so prescribed, —

(a) issue a warrant to arrest the defendant and bring him before the Court to show cause why he

should not give security for his appearance, and if he fails to comply with any order for security
commit

him to the civil prison;??

(b) direct the defendant to furnish security to produce any property belonging to him and to place

the same at the disposal of the Court or order the attachment of any property;

(c) grant a temporary injunction and in case of disobedience commit the person guilty thereof to

the civil prison and order that his property be attached and sold;

(d) appoint a receiver of any property and enforce the performance of his duties by attaching and

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selling his property;

(e) make such other interlocutory orders as may appear to the Court to be just and convenient.

95. Compensation for obtaining arrest, attachment or injunction on insufficient

grounds.—(1) Where, in any suit in which an arrest or attachment has been effected or a temporary

injunction granted under the last preceding section,—

(a) it appears to the Court that such arrest, attachment or injunction was applied for on

insufficient grounds, or

(b) the suit of the plaintiff fails and it appears to the Court that there was no reasonable or

probable grounds for instituting the same,

the defendant may apply to the Court, and the Court may, upon such application, award against the

plaintiff by its order such amount 1[not exceeding fifty thousand rupees], as it deems a reasonable

compensation to the defendant for the 2[expense or injury (including injury to reputation) caused to
him]:

Provided that a Court shall not award, under this section, an amount exceeding the limits of its

pecuniar jurisdiction.

(2) An order determining any such application shall bar any suit for compensation in respect of such

arrest, attachment or injunction.

You can get some compensation if the interlocutory appeal was against you and
you were arrested or your property was attached or something. You can prove that
the interim was not correct because it was ordered without reason. Also under a
circumstance where the entire suit is frivolous. But you’’ get max 50,000. Sir says
youll get higher compensation if you sue for wrongful arrest etc. Once you get
compensation under this section, you’re barred from filing a further suit for
compensation. BUT COURT’S FAULT NO – not really, granted ex parte. Thinking
plaintiff is in good faith.

94, 95 applicable only if grounds were insufficient or malicious. Can it be given on

the gorund that appeal is allowed? Not sure.

(b) What are the different categories of interlocutory orders that may be
passed by the court under the heading “supplementary proceedings”
(section 94, Part VI of the Code) ? Arrest and attachment before
judgment (Order 38); Temporary Injunctions (Order 39); Appointment of
Receivers (Order 40); Payment into Court (Order 24) and Security for

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 Costs (Order 25).

TEMPORARY INJUNCTIONS: ORDER 39.

Rule 1,2 – temporary injunction
6-10 – interlocutory orders.
But all of them are interim orders – injunction- negative in order,
interim or interlocutory – maybe negative or a positive order.

(a) What are the different categories of temporary injunctions that can be
granted under Order 39?
(i) For protection of any property that is in danger of being wasted,
damaged or wrongfully alienated, wrongfully sold, being disposed of
with a view to defraud creditors, or that the Plaintiff might be
dispossessed of, etc. Order 39Rule 1.
Wherever there is property involved, esp immovable property and
injury may happen to that property.
(ii) For restraining the Defendant from committing a breach of contract
or other injury of any kind. Order 39 Rule 2.
Wherever there may be breach of contract or tortious injury.
(iii) To order interim sale of movable property which is subject to speedy
and natural decay. Order 39 Rule 6.

(iv) For the detention, preservation or inspection of any property. Order

39 Rule 7.
(v) Where land paying revenue to government is ordered to be sold for
failure to pay land revenue. Order 39 Rule 9.
(vi) Order to deposit money held by a trustee. Order 39 Rule 10.
(vii) If the application in question does not satisfy the requirements of the
aforementioned provisions, under which provision would one apply?
The residuary section 151. ManoharLal Chopra vsRaiBahadurRao
Raja Seth Hiralal AIR 1962 SC 527.
Appellant and respondent partnership agreement for coal mines in
the name of diamond industries. In 1945 deed of dissolution of firm.
After dissolution disputes arose between partners. Appellant
instituted a suit in assan sole, WB against respondent for recovery of
1 lakh on the partnership account. Filed in 1948. Respondent filed
under indore court. Respondent applied under s 10 cpc before assan
sole court and asked for a stay. Rejected because only second suit
can be stayed. Now appellant filed in indore for a stay but indore
court said subject matter of bth cases are v diff. respondent filed an
injunction at indore restraining appellant from continuing suit at
assan sole. Basically its like asking under s 10, but in a v tricky way.
Indore trial court gave the injunction under order 39. Matter
appealed to HC. Because of the wording used in order 39 rules 1 and
2, trial court empowered under s 151 cpc. Appeal to SC. SC went
through full jurisprudence on 151. 151 referred to inherent powers,
not controlled by provisions of the code. General rule: don’t use S.151
– residuary clause – inherent power – to overcome the clear wording
of the rules. But where there are gaps in the law you can invoke s 15.
In effect, one court cannot restrain another court indirectly. Not in
the interest of justice to allow this. But as a matter of principle, TC
not bound by O.39 and s.94, can grant injunctive relief even de hors
that. But justice shah dissented and said civil courts don’t have
random powers beyond the CPC. Appeal allowed because courts

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 crossed their limits. Both same conclusion, different reasoning.

(b) What happens to a temporary injunction if the suit is dismissed for

default but then restored? Vareed Jacob vsSosammaGeevarghese
(2004) 6 SCC 378.

(c) What are the considerations that the court will take into account in
deciding whether or not to grant a temporary injunction?
● Dalpat Kumar vsPrahlad Singh AIR 1993 SC 276 – “the three
pillars”.
Agreement to sell a residential house. Plaintiff filed a suit for specific
performance, decreed ex parte. Before plaintiff could execute by
getting registered sale deed executed in favour, def wife filed suit for
injunction restraining plaintiff from dispossessing her. Was
dismissed. Then sons of def filed that prop is joint fam property, sale
did not bind them, sought temp inj, dismissed. Then defendant filed
another suit saying lawyer frauded him. Sought temp injunction from
dispossession property. Property consisted of commercial and
residential areas. Def in residential area. Shops in commercial
property possessed by plaintiff. Only res portion remained. At this
stage TC dismissed def. HC on appeal allowed application of the
defendant.
SLP filed by plaintiff against HC order. SC said in this case, OG
defendent seems to file in mala fide. Fourth round of litigation. They
laid down principles to be applied while deciding whether temp
injunction should be granted:
1. Whether the plaintiff is able to establish that there is a serious
disputed Q to be tried in the suit and the plaintiff is entitled to the
relief? Plaintiff should show a prima facie case. – prima facie case
2. Interlocutory necessary to protect party from irreparable damage?
– irreparable damage
3. Whether the damage from not granting injunction is greater than
granting the injunction? – balance of convenience
SC said burden on plaintiff to establish through affidavit that
there is a prima facie case and balance of convenience in his
favour.
Defendant lost the SLP.
● M/s Gujarat Bottling Co Ltd vs Coca Cola Company AIR 1995 SC
2372- fair and honest conduct of an applicant necessary.
● Whether the applicant has delayed making the application.

● Acquiescence.

● Whether monetary compensation would be adequate.

(d) What is the procedure for grant of an injunction? Is notice to the

opponent necessary? Order 39 Rule 3. Yes unless delay defeats the
point of the injunction. If an ex parte injunction is to be granted,
what procedure would need to be followed? Order 39 Rule 3 and

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 Rule 3A. copy of affidavit, plaint, supporting documents.

(e) What is the difference between an ad interim and an interim

injunction? Order 39 Rules 3 and 3A.

Ad interim ex parte temporary injunction order – granted only for 30

days till order for interim injunction heard and disposed of within 30
days. This expires after 30 days.

(f) How can the opponent overcome an injunction order? Application to

vacate it under Order 39 Rule 4. If an injunction has been granted
after hearing both sides, will an application to vacate it be
maintainable?

If any party dissatisfied with injunction, he can apply for order to set it
aside. Discharge or variation of the order on the ground that false
statements were made. Court usually doesn’t vary unless change in
circumstances.
(g) If the injunction granted by the court is violated, what steps should
be taken and what would be the consequences thereof? Order 39
Rule 2A.
You can execute an order the same way you execute a decree. Apply for
execution before the executing court.

(h) Whom does an injunction against a corporation bind? Order 39 Rule

5.

(i) What is the difference between an order of stay and an order of

injunction? “Stay” generally applies to judicial or administrative
proceedings whilst injunction generally applies to a person, private
entity.

(j) What is the difference between an interim injunction and a

permanent injunction? Permanent- forever. Temporary-until disposal
of the suit. Also see sections 38 to 42 of the Specific Relief Act,
1963.

(k) What is the difference between a preventive injunction and a

mandatory injunction?
preventive prevents someone from doing something. Mandatory asks
someone to do something.
(l) Does res judicata apply to interlocutory applications? Generally yes-
though the wording in section 11 might not in terms apply.

(m)What is an order of “status quo”?

Status quo passed against both parties – both of u shut up and sit
down. Freeze order. Don’t do anything. Losers.

BASIC READING
● Sections 94, 95 and 151 and Orders 38, 39, 40 of CPC, 1908;

Page 76 of 127
 ● Sections 38 to 42 of the Specific Relief Act, 1963;

● ManoharLal Chopra vs RaiBahadur Rao Raja Seth Hiralal AIR

1962 SC 527;
● Vareed Jacob vs SosammaGeevarghese (2004) 6 SCC 378;

● Dalpat Kumar vs Prahlad Singh AIR 1993 SC 276;

● M/s Gujarat Bottling Co Ltd vs Coca Cola Company AIR 1995

SC 2372

ARREST AND ATTACHMENT BEFORE JUDGMENT: ORDER 38

(a) When can a defendant be called upon to furnish security for his
appearance? Order 38 Rules 1 to 4.What is the exception carved out
in Rule 1? Suits of the nature referred to in section 16 (a) to (d).
Order 38 rule 1
But defendant absconded – court may order arrest and require to
furnish security for appearance
Further rules talking about arrest and surety provisions in detail

(b) What is the maximum period for which a defendant can be detained
in prison under Order 38 Rules 1 to 4? Order 38 Rule 4.

(c) When can a defendant’s property be attached before judgment?

Order 38 Rules 5 to 13.

(d) What are the parameters for exercise of discretion under Order 38?
Raman Tech and Process Engg Co vsSolanki Traders (2008) 2
SCC 302- the object of supplemental proceedings like arrest and
attachment before judgment is to prevent the ends of justice being
defeated especially the realization of the decree that may ultimately
be passed in favour of the Plaintiff. The power under Order 38 Rule 5
CPC is drastic and extraordinary and to be used sparingly and
strictly. Attempts to use it as leverage to settle the case should be
discouraged.

(e) If arrest or attachment is obtained on insufficient grounds, what is

the remedy? Section 95.

BASIC READING
● Order XXXVIII and Section 95 of CPC, 1908;

● Raman Tech and Process Engg Co vs Solanki Traders (2008) 2

SCC 302

RECEIVERS : ORDER 40

(a) Who is a “receiver”? “An impartial person appointed by the court

to collect and receive, pending the proceedings, the rents, issues

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 and profits of land or personal estate, which it does not seem
reasonable to the court that either party should collect or receive,
or for enabling the same to be distributed among the persons
entitled”. A receiver is an officer and extended arm and hand of
the court, a part of the court machinery.

(b) What is the object of the appointment of a receiver? To protect,

preserve and manage the property during the pendency of the
litigation.

(c) When can a receiver be appointed and what is the procedure

applicable? Order 40 Rules 1 to 5. Benoy Krishna Mukherjee
vsSatish Chandra Giri 1927 ILR PC 720 – appointment of a
receiver of property in possession of a Defendant should be made
only if there is a well-founded fear that the property will be
dissipated or irreparably injured.

(d) Why is appointment of a receiver considered a harsh remedy? It

deprives the person in possession of the property during the
pendency of the suit. It is thus generally not ordered if one party
is in de facto possession but may be ordered if the property is in
medio.

BASIC READING
● Order XL of CPC, 1908;

● Benoy Krishna Mukherjee vs Satish Chandra Giri 1927 ILR

PC 720

PAYMENT INTO COURT: ORDER 24

(a) What are the rules pertaining to payment into court? Order 24
Rules 1 to 4.
Payment can be deposited in the court. Plaintiff can withdraw
payment also. A disputed sum could also be possible. Court
can permit withdrawal of part of the sum and could permit
changing the sum and paying the rest later.

(b) How arecosts calculated when payment is made into court?

Order 24 Rule 4.

(c) What is the effect on liability to pay interest once payment is

made into court? Order 24 Rule 3.
Read provisions relating to interest.

BASIC READING
● Order XXIV of CPC, 1908

SECURITY FOR COSTS: ORDER 25

(a) When can the Plaintiff be required to furnish security for

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 costs? Order 25 Rules 1 and 2.

BASIC READING

● Order XXV of CPC, 1908

ADDITIONAL READING
Takwani Pages: 318 to 362.

Module 2

In this module we will study execution proceedings, suits in particular instances

and miscellaneous provisions under the Code, thus completing essential trial court
procedures. Study of the provisions thus far should make the student conversant
with the essentials of trial-level procedural rules and advocacy.

WEEK 5

EXECUTION

A. WHAT IS “EXECUTION”?

The word has not been defined in the Code, but in its widest sense, it
signifies the enforcement or giving effect to a judgment or order of a court of
justice (Halsbury’s Laws of England). Execution is the enforcement of
decrees and orders by the process of the court, so as to enable the decree-
holder to realize the fruits of the decree. Execution is complete when the
decree holder gets the money or other thing awarded to him by the decree or
order.

B. WHERE ARE THE PROVISIONS CONTAINED FOR EXECUTION OF

DECREES AND ORDERS?

Part II: sections 36 to 74 and Order 21. Also sections 145 and 146.

C. WHAT ARE THE DIFFERENT HEADS UNDER WHICH EXECUTION CAN

BE DISCUSSED?

● What are the general principles applicable to execution?

Proceedings in execution separate from proceedings in suit,

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 Proceedings commenced by plaint, execution commenced by
application seeking execution
In same civil proceeding
● Which courts can execute decrees?

● What are the requirements of an application for execution?

● How is payment to be made under a decree?

● What are the rules applicable to stay of execution?

● What are the different modes available for execution?

● When will the court order arrest and detention in the execution of a
decree and what are the procedures thereof?
● When will the court attach property in execution of a decree and what
are the procedures thereof?
● What procedure applies for sale of property in execution?

● What procedure applies for delivery of possession?

● What procedure applies for distribution of assets when there are

several applications for execution against the same property?
● What are the mechanisms available before the executing court for
adjudication of claims and disputes?
● What questions should be determined by the executing court?

D. WHAT ARE THE GENERAL PRINCIPLES APPLICABLE TO

EXECUTION?

● The executing court cannot go beyond the decree or vary or modify its
terms.
● However, if the terms of the decree are vague, the executing court can
construe the decree and refer even to the pleadings in the suit.
● In case of inherent lack of jurisdiction the decree passed is a nullity
and its invalidity could be raised in execution proceedings – here the
court cannot be said to be going behind the decree as there is no
decree at all. However, the inherent lack of jurisdiction must appear
from the face of the record.
● The executing court can also go into the executability of the decree
and enquire whether the decree has ceased to be executable.
● The executing court has the power to mould the relief granted to the
Plaintiff in accordance with the changed circumstances.

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● The principle of res judicata specifically applies to execution
proceedings by virtue of Explanation VII of section 11. But an earlier
decision can operate as res judicata if the execution application has
been heard and finally decided and not otherwise. If the application is
dismissed for default of appearance, non-prosecution, as being
premature or as not pressed, the principle of res judicata will not
apply.

E. Under the Code, the provisions thereof applicable to decrees are

deemed applicable to orders also.Hence, the same procedures
would need to be adopted for execution of orders also.

F. WHICH COURTS CAN EXECUTE DECREES?(sections 37 to 46 and

Order 21 Rules 3,4,9)

● A decree may be executed by the Court which passed it or by the

Court to which it is sent for execution (the transferee court) –section
38.
● In S.37 – deeming fiction – definition of court which passed the
decree – the court of first instance.
● When a decree is assailed before appellate court and they pass their
own decree, decree of TC merges with appellate court decree. The
decree of the appellate court to be executed. At any point of time only
one executable decree of the highest court. But S.37 says that court
which passed the decree originally – court of first instance – that only
shall be the ‘court which passed it’. Appellate courts also included –
because that is really the court which passed the decree.
● If the court of first instance ceased to exist or have jurisdiction – if
the suit you had to file now, where would you file – that court will be
the court which passed it.
● If the suit was transferred from one court to another, all those courts
will have jurisdiction.
● However, by virtue of the deeming provision in section 37, the “court
which passed the decree” is deemed to include several other courts as
well.
● Transfer of decree is provided for under section 39- the court which
passed the decree may transfer the decree for execution to another
court of competent jurisdiction ie, as defined in sub-clause (4). The
circumstances under which transfer can be effected are laid out in
section 39.
● Under section 39, the court which passed the decree may also send
it to a subordinate court for execution.
● However, by virtue of section 39 (4), the court which passed the
decree cannot execute the decree against any person or property
outside the local limits of its jurisdiction.

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● Cases: Mahadeo Prasad Singh vs Ram Lochan (1980)4SCC 354.

Mohit Bhargava vs Bharat Bhushan Bhargava (2007) 4 SCC 795.

Decree holder filed at district court Gwalior. Prelim and final decree
passed there directing judgement debtor to ay 6,66,000 rupees to
decree holder. Judgement debtor minor. Grandfather of judgement
debtor gave property to some third parties on rent and asked them to
give possession after a certain period. These properties in indore. Also
handed over documents of title relating to said property to third
party. Third party had custody. They are liable to hand it over to the
judgement debtor. Third party said they won’t hand over. Executing
court granted these orders. Decree holder made application seeking
sale of property at indore. This was ordered. Judgement debtor
became major by then. He challenged all these orders by the
executing court and asked them to order that third parties don’t need
to hand over anything. This was also passed by the executing court.
HC said order of sale was not permissible – bc court at Gwalior did
not have territorial jurisdiction bc property at indore. They said
should be transferred to indore court. SC said decree can be executed
by court which passed it as long as assets within own jurisdiction,
and if judgement debtor is within jurisdiction of the court. If property
to be proceeded against is outside jurisdiction or if judgement debtor
outside jurisdiction and you require his personal obedience, court
cannot execute. Then remedy is to transfer the decree. However, SC
noted that there are important exceptions to this rule. When a
precept is ordered, court which passed decree may have powers even
outside jurisdiction. Similarly when a court is ordering a third party
not to deliver property or give title, when it is passing freezing order
or anton pillar or mareiwa order not to do something, then it is
allowed even if outside jurisdiction. 3 rd exception under order 21 rule
3 where if property situated in more than one than one court, any of
those courts have power.

● The transferee court shall have the same powers in executing the
decree as if it had been passed by itself. However, there are some
fetters on the powers of the transferee court. Section 42.
● Procedure to be adopted for transfer of a decree- sections40, 41, 42
and Order 21 Rules 4, 5,6,7,8,9.
● Diff states also. When youre executing, follow the rules of execution
in the final state.
● Precepts- section 46. What is a precept and when will it be issued?

● Exception to 39(4) which states that cant execute if someone outside

court’s jurisdiction. Precept means one court can direct another court
to attach the property.
● What are the exceptions to the rule that a court cannot execute
against person or property outside its territorial jurisdiction? Order

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 21 Rule 3.
● Can a decree be executed in more than 1 court? Yes- but this should
be done only in exceptional cases.

G. APPLICATION FOR EXECUTION

● What is the procedure for seeking execution? Is a written application

always necessary? Order 21 Rules 10,11.
Decree holder should apply through a written application usually.
Decree for payment of money – can arrest the judgement debtor on
decree holder applying through oral application. Apprehension of
fleeing.
● What details should be contained in the application for execution?
Order 21 Rules 11 to 14.
● What is the enabling provision with regard to joint decree holders?
Order 21 Rule 15. Any one can apply. If decree transferred by
assignment in writing, then assignee can execute it.
● What is the procedure in case of cross-decrees and cross-claims?
Order 21 Rules 18 to 20.
● What is the procedure to be adopted after filing of the application?
Order 21 Rules 17, 22, 23, 24, 25. When is notice required to be
issued on an application for execution?
If more than 2 years passed, notice is mandatory. He will then be
heard and may oppose application for execution. If youre seeking
execution from legal hair, or assignee or receiver in insolvency, or
third party, then mandatory to issue a notice of execution.
In rule 24, court has to issue a process. If he is ordering arrest or
sale etc, you need some formal proof of the procedure to the adopted.
This is called the process. The officer who has to do this shall do it
before the last day, if delay or not executed, reasons to be recorded
and returned to court. Court shall examine officer.

H. PAYMENT UNDER A DECREE (Order 21 Rules 1 and 2)

● How can money payable under a decree be paid?

● If a payment has not been certified or recorded, what is the effect?

You can pay through court or outside court but get it recorded in
court.

I. WHO CAN MAKE AN APPLICATION AND AGAINST WHOM CAN IT

BE MADE ?

● Section 146: where any proceeding may be taken or application

made by or against any person, then the proceeding may be taken or

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 the application may be made by or against any person claiming under
him.
● However, under section 49 the transferee shall hold the decree
subject to the same equities that judgment-debtor might have
enforced against the original decree-holder.
● Further however, under section 50 if judgment-debtor dies before
decree has been fully satisfied, the decree can be executed against
the legal representatives of the deceased only to the extent of the
property of the deceased which has come to his hands and has not
been duly disposed of. However, if the legal representative has not
duly applied the property of the deceased, the decree may be
executed against the judgment-debtor in the same manner as if the
decree was against him personally-section 52. See also section 53.
● Further however, in case of assignment of the decree, no such decree
shall be executed unless notice is given to the judgment debtor and
the transferor and they have been heard on their objections. Order
21 Rule 16.
● Note Order 21 Rule 22A: death of judgment debtor before sale but
after proclamation of sale does not vitiate the sale.
● The liability of a surety has been specifically provided in section 145.

● In a representative suit, a beneficiary may apply for execution, even if

he has not been made a party.
● One or more of joint decree-holders can apply subject to conditions.
Order 21 Rule 15.

J. STAY OF EXECUTION (Order 21 Rules 26 to 29)

● Which are the courts empowered to stay execution? The court

to which the decree has been sent (section 26) may stay for a
reasonable time; & the court which passed the decree or the
appellate court (section 28).
● Stay where another suit pending between decree holder and
judgment debtor (section 29).
● Shaukat Hussain vs SmtBhuneshwari Devi (1972) 2 SCC
731.

K. MODE OF EXECUTION GENERALLY (sections 51, 54, Order 21

Rules 30 to 36)
● Section 51: Powers of the court to enforce execution: subject
to such limitations and conditions as may be prescribed, the
Court may order execution of the decree by one of the modes
prescribed or in such other manner as the nature of the relief
granted may require.
● Section 54: partition and separate possession of undivided

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 estate shall be made by the Collector.
● What are the different modes prescribed for execution for
particular types of decrees? Order 21 Rules 30 to 36.
● How is a decree for restitution of conjugal rights to be
executed? Order 21 Rules 32, 33.

L. ARREST AND DETENTION (Sections 51, 55, 56, 57, 58, 59 and
Order 21 Rules 11, 21, 30, 31, 32, 37 to 40)

● What are the safeguards and pre-conditions for arrest in

execution?
✔ Order 21 Rule 21: court may refuse
simultaneous execution at the same time against
the person and property of the judgment debtor.
✔ Section 55: detention shall be in civil prison.

✔ Shall be brought before court as soon as possible

(section 55 and Order 21 Rule 38).
✔ No dwelling house shall be entered after sunset
and before sunrise. (section 55).
✔ Outer door of dwelling house not to be broken
open unless…(section 55).
✔ Room in occupancy of a woman who does not
appear in public according to custom (section
55).
✔ State Government may prescribe special
procedure for certain persons. (section 55).
✔ Section 57: State Government may fix scales for
allowances payable for the subsistence of
judgment-debtors. Order 21 Rule 39: decree
holder bound to pay into court subsistence
allowance.
✔ Release on the ground of illness permitted-
section 59.

● What are the additional safeguards with regard to arrest in

execution of a money decree?
✔ Opportunity of showing cause necessary (section
51 and Order 21 Rule 37).
✔ The court for reasons to be recorded in writing
should be satisfied that (a) judgment debtor
likely to abscond or has dishonestly transferred

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 property or committed any other act of bad faith
(b) the decretal amount is a sum which the
judgment debtor was bound in a fiduciary
capacity to account or (c) the judgment debtor
has the means but refuses or neglects to pay.
(Section 51).
✔ If judgment debtor pays the sum due to the
officer arresting, such officer shall at once release
him (section 55).
✔ Under section 55(3) – once the judgment debtor
is arrested and brought before the court, the
Court is bound to inform him that he may apply
to be declared an insolvent.
✔ No woman shall be arrested or detained in
execution of a decree for the payment of money
(section 56).
✔ Persons detained in execution of a money decree
– maximum periods of detention are prescribed in
section 58.
✔ A judgment debtor released is not discharged
from his debt, but he shall not be liable to be re-
arrested (section 58).
✔ Special procedure before committal to civil prison
(Order 21 Rule 40).
● Why is a distinction made in the Code with regard to execution
of regular decrees and money decrees?
● Cases: Shyam Singh vs Collector, District Hamirpur, UP
(1993) Supp 1 SCC 693; PadraunaRajkrishna Sugar Works
Ltd vs Land Reforms Commissioner 1969 (1) SCC 485;
Subrata Roy Sahara vs Union of India (2014) 8 SCC 470;
Farmer took loan from SBI for 34000 in 1972 to purchase a
tractor. Tractor hypothecated to the bank. 22 acres of agri
land mortgaged to bank as addlt security. Shyam singh
couldn’t repay loan. Bank approached authoritirs under UP
Agri Credit Act 1973 where provisions in pari material w CPC
for execution of decree. Under act, tractor was attached and
custody of tractor was taken. They also attached land. At this
stage shyam singh objected. He said I only owe u 34000. Sell
my tractor first and if you don’t recover it, take my land.
Matter went to SC, they noted that under order 21 rule 21,
court can permit simultaneous execution against person and
property. They noted that CPC were analogous to UP act. They
said since it’s a discretionary matter, the authorities should
check amount from sale of tractor. Only if it doesn’t add up,
take lands.
General rule don’t attach and sell more than what is
necessary. In this case, order 21 rule 21 not appropriate. It
talks about simultaneous execution against person and

Page 86 of 127
 property. But doesn’t remark on attaching more than required.

PadraunaRajkrishna Sugar Works Ltd vs Land Reforms

Commissioner 1969 (1) SCC 485
3 judge bench: not a rule that movables should be proceeded
against first then immoveables. Both can be done
simultaneously. CPC imposes no obli that movables be sold
first or that arrest be done first before immoveable property.
Simultaneous execution is permissible.
If you are the lawyer, ask for as many modes of relief as you
can otherwise lose opportunity if you missed out on any
particular mode.

Jolly George Varghese vs The Bank of Cochin (1980) 2 SCC

360.
Jolly didn’t pay 7 lakhs mentioned in decree. Decree holder
sought his arrest. Arrested and placed in civil prison. J
Krishna Iyer said uner article 11 of ICCPR no one can be
imprisoned merely on ground of not being able to fulfill
contractual obligation. He also pointed to Art.21 – whether it is
a fair procedure to arrest someone if they didn’t fulfill
contractual liability. What is the humane meaning of S.51?
S.51(c) for interpretation. After looking at maneka Gandhi +
ICCPR, simple default of judgement debtor to pay is not
enough to arrest them. Not mere inability, but refusal to pay
attitude – arrogant and dishonestly in bad faith.

M. ATTACHMENT (sections 60 to 64 and Order 21 Rules 41 to 59)

● Attachment is a process by which a court , at the request of a

decree holder, designates specific property owned by
the judgment debtor, to be transferred to the decree holder, or
sold for the benefit of the decree holder.
● The primary object of attachment is to give notice to the
judgment debtor not to alienate the property to anyone as also
to the general public not to purchase or deal with the property
attached. Attachment is not a condition precedent for sale.
● Section 64 provides that any private transfer or delivery of
property attached shall be void. However, the section does not
apply to any private transfer or delivery of the property
attached made in pursuance of a contract entered into and
registered before the attachment.
● Section 60 provides a non-exhaustive list of all properties
liable to attachment that are “saleable”; it also provides a list
of items that cannot be attached and sold. Under section
60(1-A) no person can waive the benefit of these exemptions
from attachment. Section 61 provides that the State
Government may exempt agricultural produce from
attachment.

Page 87 of 127
 ● Section 62 imposes safeguards to be observed whilst
attaching property.
● Section 63 provides that if the same property is under
attachment in execution of decrees of more than 1 court, then
the Court entitled to deal with the property shall be the court
of the highest grade or the court which first attached the
property.
● Order 21 Rule 41 provides that in a money decree, the
judgement debtor or any other person can be examined as to
the properties available or court can require an affidavit
stating the particulars of the assets of the judgment debtor.
● Order 21 Rule 42 provides for attachment even if the amount
due has not yet been ascertained such as where enquiry as to
rents or mesne profits is pending.
● Order 21 Rules 43 to 54 provide for the manner of making
the attachment with regard to different types of properties. See
Takwani’s Chart page 656.
● It is to be noted that disputes arising in the course of
attachment can be decided by the court and such orders of the
court are deemed to be decrees (ie can be appealed against)-
Order 21 Rule 43A (determination of liability of a custodian of
movable property); Order 21 Rule 46H (orders in cases
involving Garnishees); &Order 21 Rule 50 (liability of a
partner of a firm). Also Order 21 Rule 58.
● What is the procedure adopted in the Code as to recovery from
Garnishees? Order 21 Rules 46A to H. The same procedure
applies to negotiable instruments. (Order 21 Rule 46I)
● What is the procedure for attachment of immovable property?
Order 21 Rule 54.
● When is the attachment removed or withdrawn? Order 21
Rule 55.
● When does the attachment determine? Order 21 Rule 57.

● What is the procedure for attachment of coin or currency

notes? Order 21 Rule 56.
● What is the procedure for adjudication of claims and
objections on the ground that the property in question is not
liable to be attached? Order 21 Rule 58. If the court refuses
to entertain the claim, what remedy is available? If the court
entertains and determines the issue, what is the effect?
● When might the court stay the sale? Order 21 Rule 59.

N. SALE

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● Section 65 provides that when immovable property is sold
and such sale has become absolute, the property is deemed to
have vested from the time the property is sold and not when
the sale becomes absolute.
● Section 67 empowers the State Government to make rules for
the sales of land in execution of decrees where the value of the
lands are uncertain.
● Under rule 64 the court is empowered to order any property
attached by it and liable to sale to be sold and that the
proceeds shall be paid to the party entitled to it under the
decree.
● The following safeguards are enshrined in the Code:

⮚ Every sale in execution of a decree shall be conducted

by an officer of the court or court-appointed person and
it shall be made by public auction, in the manner
prescribed. Rule 65.
⮚ Proclamation of the intended sale is mandatory, after
notice, and compliance with the other requirements of
rules 66 and 67.
⮚ The time of sale is prescribed by rule 68.

⮚ Rule 69 provides for adjournment or stoppage of sale if

the amount due is paid.
⮚ Rule 71 provides that the defaulting purchaser is
answerable for the loss on re-sale.
⮚ Rules 72 and 72A provide that the decree-holder and
mortgagee cannot bid at the auction without the leave of
the court.
⮚ Officers are prohibited from bidding in these sales- Rule
73.

Rules 74 to 81 (specifically with regard to sale of

movable property)
⮚ Rules 74 to 76 provide special provisions for sales of
movable propertysuch asagricultural produce, growing
crops and negotiable instruments.
⮚ Under Rule 77, in the case of movable property sold by
public auction, upon the payment of the purchase
money, and the grant of a receipt for the same, the sale
becomes absolute.
⮚ Under Rule 78,no irregularity in the sale of movable
property shall vitiate the sale, but a fresh suit for
compensation and recovery of the property is not
barred.

Page 89 of 127
⮚ Rules 82 to 96 make specific provision for the sale of
immovable property.

Rules 82 to 96 (specifically with regard to sale of

immovable property)
⮚ Rule 82: Court of Small Causes cannot order
sale of immovable property.
⮚ Rule 83 provides that sale may be postponed if
judgment debtor satisfies the court that decretal
amount can be raised by private sale or
otherwise; in such a case the court will grant a
certificate to the judgment debtor authorizing
him to make the proposed sale notwithstanding
section 64 (ie any attachment of the property).
⮚ Purchaser of immovable property is bound to
deposit 25% immediately, failing which the
property will be re-sold forthwith – Section 84.
⮚ Within 15 days from the date of sale the
purchase money shall be paid in full: Rule 85.
⮚ In case of failure to pay the purchase money, the
property shall be re-sold and the defaulting
purchaser will forfeit his deposit – Rule 86.
⮚ Upon re-sale, fresh proclamation is to be issued-
Rule 87.
⮚ Bid of a co-sharer shall have preference – Rule
88.
⮚ After the sale, there are 3 provisions under which
the sale still be set aside: Order 21 Rules 89
(application to set aside on deposit), 90
(application to set aside sale on the ground of
irregularity or fraud) and 91(application by
purchaser to set aside sale on the ground of
judgment debtor having no saleable interest).
⮚ Under Order 21 Rule 92 where no application is
made under the three rules or where such an
application is made and disallowed, the Court
shall make an order confirming the sale and only
thereupon the sale shall become absolute.
⮚ Where sale is set aside, the purchase money will
be returned to the purchaser – Rule 93.
⮚ Once the sale has become absolute, the Court
shall grant a certificate specifying the property
sold and the name of the person declared to be
the purchaser and the date on which the sale
became absolute. Order 21 Rule 94. However,

Page 90 of 127
 this is only a ministerial act.

Cases: ManilalMohanlal Shah vs Sardar Syed

Ahmed Sayed Mahmud AIR 1954 SC 349; A.
Venkatachalam vs E.M. Zackria 1987 (Supp)
SCC 124; AmbatiNarasayya vs M. Subba Rao
1989 Supp(2) SCC 693; Ganpat Singh vs
Kailash Shankar (1987) 3 SCC 146.

A. ATTACHMENT (sections 60 to 64 and Order 21 Rules 41 to

59)

∙ Attachment is a process by which a court , at the request of

a decree holder, designates specific property owned by
the judgment debtor, to be transferred to the decree holder, or
sold for the benefit of the decree holder.
∙ The primary object of attachment is to give notice to the
judgment debtor not to alienate the property to anyone as also
to the general public not to purchase or deal with the property
attached. Attachment is not a condition precedent for sale.
∙ Section 64 provides that any private transfer or delivery of
property attached shall be void. However, the section does not
apply to any private transfer or delivery of the property
attached made in pursuance of a contract entered into and
registered before the attachment.
∙ Section 60 provides a non-exhaustive list of all
properties (anything with market value and which is saleable
can be attached) liable to attachment that are “saleable”; it
also provides a list of items that cannot be attached and
sold. Under section 60(1-A) no person can waive the benefit of
these exemptions from attachment.
∙ Section 61 provides that the State Government may
exempt agricultural produce from attachment.
∙ Section 62 imposes safeguards to be observed whilst
attaching property.
∙ Section 63 provides that if the same property is under
attachment in execution of decrees of more than 1 court, then
the Court entitled to deal with the property shall be the court
of the highest grade or the court which first attached the
property.
∙ Order 21 Rule 41 provides that in a money decree, the
judgement debtor or any other person can be examined as to
the properties available or court can require an affidavit
stating the particulars of the assets of the judgment debtor.
∙ Order 21 Rule 42 provides for attachment even if the
amount due has not yet been ascertained such as where

Page 91 of 127
 enquiry as to rents or mesne profits is pending.
∙ Order 21 Rules 43 to 54 provide for the manner of making
the attachment with regard to different types of properties. See
Takwani’s Chart page 656. [IMPORTANT].
∙ It is to be noted that disputes arising in the course of
attachment can be decided by the court and such orders of the
court are deemed to be decrees (ie can be appealed against)-
Order 21 Rule 43A (determination of liability of a custodian of
movable property); Order 21 Rule 46H (orders in cases
involving Garnishees); &Order 21 Rule 49 and 50 (liability of
a partner of a firm). Also Order 21 Rule 58 – if property has
been wrongly attached
∙ What is the procedure adopted in the Code as to recovery
from Garnishees? Order 21 Rules 46A to H. The same
procedure applies to negotiable instruments. (Order 21 Rule
46I)
∙ What is the procedure for attachment of immovable
property? Order 21 Rule 54. – order prohibiting the
judgement debtor from transferring or charging the property in
any way and all persons taking benefit from such transfer of
charge.
∙ When is the attachment removed or withdrawn? Order 21
Rule 55.
∙ When does the attachment determine? Order 21 Rule 57.

∙ What is the procedure for attachment of coin or currency

notes? Order 21 Rule 56. Attachment of movables, Order
21, Rule 43.
∙ What is the procedure for adjudication of claims and
objections on the ground that the property in question is not
liable to be attached? Order 21 Rule 58. If the court refuses
to entertain the claim, what remedy is available? If the court
entertains and determines the issue, what is the effect?
∙ When might the court stay the sale? Order 21 Rule 59.

B. SALE
∙ Section 65 provides that when immovable property is sold
and such sale has become absolute, the property is deemed to
have vested from the time the property is sold and not when
the sale becomes absolute.
∙ Section 67 empowers the State Government to make rules
for the sales of land in execution of decrees where the value of
the lands are uncertain.
∙ Under rule 64 the court is empowered to order any property
attached by it and liable to sale to be sold and that the

Page 92 of 127
 proceeds shall be paid to the party entitled to it under the
decree.
Ambati Narasayya vs M. Subba Rao 1989 Supp(2) SCC 693
- An exparte decree was passed against the judgment debtor with costs
and his land was attached to the suit – an auction purchaser purchased the
land and it was confirmed – after confirmation, an application was filed for
setting aside the sale under O21, R19 – the matter went to SC, which said
that O21, R64 had been violated, which states that only that portion of the
property which is necessary to satisfy the decree must be attached and sold.
In the instant case, the sale was effected without examining this aspect and
thus, the sale was set aside and fresh attachment happened.
- Can an application to set aside the sale be filed after the confirmation of
the sale, i.e. after the transfer of ownership?

∙ The following safeguards are enshrined in the Code:

⮚ Every sale in execution of a decree shall be conducted

by an officer of the court or court-appointed
person and it shall be made by public auction, in the
manner prescribed. Rule 65.
⮚ Proclamation of the intended sale is mandatory,
after notice, and compliance with the other
requirements of rules 66 and 67.
⮚ The time of sale is prescribed by rule 68.

⮚ Rule 69 provides for adjournment or stoppage of sale

if the amount due is paid.
⮚ Rule 71 provides that the defaulting purchaser is
answerable for the loss on re-sale.
⮚ Rules 72 and 72A provide that the decree-holder and
mortgagee cannot bid at the auction without the leave of
the court.
⮚ Officers are prohibited from bidding in these
sales- Rule 73.

Rules 74 to 81 (specifically with regard to sale of

movable property)
⮚ Rules 74 to 76 provide special provisions for sales of
movable property such as agricultural produce, growing
crops and negotiable instruments.
⮚ Under Rule 77, in the case of movable property sold
by public auction, upon the payment of the purchase
money, and the grant of a receipt for the same, the sale
becomes absolute. – as per TOPA, the date of vesting of
title is when the owner transfers it – in case of a court
order, the transfer is after the sale becomes absolute
after confirmation of sale – once purchase money is paid
and there is a receipt for the same.

Page 93 of 127
 ⮚ Under Rule 78,no irregularity in the sale of movable
property shall vitiate the sale, but a fresh suit for
compensation and recovery of the property is not
barred. – The sale becomes absolute on payment of the
money and there is no confirmation for the sale of
movables.
⮚ Rules 82 to 96 make specific provision for the sale of
immovable property.

-
Rules 82 to 96 (specifically with regard to sale of
immovable property)
⮚ Rule 82: Court of Small Causes cannot order
sale of immovable property.
⮚ Rule 83 provides that sale may be postponed if
judgment debtor satisfies the court that decretal
amount can be raised by private sale or
otherwise; in such a case the court will grant a
certificate to the judgment debtor authorizing
him to make the proposed sale notwithstanding
section 64 (ie any attachment of the property).
⮚ Purchaser of immovable property is bound to
deposit 25% immediately, failing which the
property will be re-sold forthwith – Section 84.
⮚ Within 15 days from the date of sale the
purchase money shall be paid in full: Rule 85.
⮚ In case of failure to pay the purchase money,
the property shall be re-sold and the defaulting
purchaser will forfeit his deposit – Rule 86.
⮚ Upon re-sale, fresh proclamation is to be
issued- Rule 87.
⮚ Bid of a co-sharer shall have preference – Rule
88.
⮚ After the sale, there are 3 provisions under
which the sale still be set aside: Order 21 Rules
89 (application to set aside on
deposit), 90 (application to set aside sale on the
ground of irregularity or fraud)
and 91(application by purchaser to set aside sale
on the ground of judgment debtor having no
saleable interest).
⮚ Under Order 21 Rule 92 where no application
is made under the three rules or where such an
application is made and disallowed, the Court
shall make an order confirming the sale and only

Page 94 of 127
 thereupon the sale shall become absolute.
⮚ Where sale is set aside, the purchase money
will be returned to the purchaser – Rule 93.
⮚ Once the sale has become absolute, the Court
shall grant a certificate specifying the property
sold and the name of the person declared to be
the purchaser and the date on which the sale
became absolute. Order 21 Rule 94. However,
this is only a ministerial act.

Ganpat Singh v Kailash Sankar:

- Even after the confirmation of sale, an application was made on grounds
other than those mentioned in O21, R89, 90 and 91 (supposed to be
exhausted of provisions empowering you to set aside sale before
confirmation) – once a sale becomes absolute, the title vests in the
purchaser and cannot be set aside.
- In the execution proceedings, where the decree holder sought
possession of the property, the appellants in the SC argued that they set an
application for setting aside the sale and that application was rejected – the
date of rejection is when the sale became absolute and that’s the date from
which the limitation should be calculated and that his application seeking
possession was within the limitation period.
- SC said Rules 89, 90 and 91 are exhaustive and you cannot make an
application for setting aside of the sale under any other provisions and thus
your application was not maintainable – thus, the sale became absolute
from the date of the confirmation and not the date of the order.

O. DELIVERY OF POSSESSION
● Movable property – Order 21 Rules 79 to 81.

● Immovable property – Order 21 Rules 95 to 104.

● Resistance to possession of immovable property- Order 21

Rules 97, 98 (civil prison).
● Dispossession of person other than judgment debtor – Order
21 Rules 99, 100, 101, 102, 103, 104. Deemed decree.

P. PROCEEDS OF EXECUTION SALE TO BE RATEABLY

Page 95 of 127
 DISTRIBUTED AMONGST DECREE HOLDERS - Section 73.

Q. DEFAULT IN EXECUTION PROCEEDINGS – Order 21 Rules 105

and 106.

R. CAN A SUIT LIE TO CORRECT ANYTHING DONE IN EXECUTION

PROCEEDINGS?
● Section 47 : all questions arising between the parties to the suit
relating to the execution, discharge or satisfaction of the decree shall
be determined by the court executing the decree and not by a
separate suit.

BASIC READING

● Sections 36 to 74 and Order XXI of CPC, 1908;

● Mahadeo Prasad Singh vs Ram Lochan (1980)4SCC 354;

● Mohit Bhargava vs Bharat Bhushan Bhargava (2007) 4 SCC 795;

● Shaukat Hussain vs SmtBhuneshwari Devi (1972) 2 SCC 731;

● Shyam Singh vs Collector, District Hamirpur, UP (1993) Supp 1

SCC 693;
● PadraunaRajkrishna Sugar Works Ltd vs Land Reforms
Commissioner 1969 (1) SCC 485;
● Subrata Roy Sahara vs Union of India (2014) 8 SCC 470;

● Jolly George Varghese vs The Bank of Cochin (1980) 2 SCC 360;

● ManilalMohanlal Shah vs Sardar Syed Ahmed Sayed Mahmud AIR

1954 SC 349;
● A. Venkatachalam vs E.M. Zackria 1987 (Supp) SCC 124;

● AmbatiNarasayya vs M. Subba Rao 1989 Supp(2) SCC 693;

● Ganpat Singh vs Kailash Shankar (1987) 3 SCC 146

ADDITIONAL READING
Takwani Part IV
WEEK 6

SUITS IN PARTICULAR CASES

● SUITS BY OR AGAINST GOVERNMENT OR PUBLIC OFFICERS IN

THEIR OFFICIAL CAPACITY : sections 79 to 82; Order XXVII

Page 96 of 127
● The authority to be named shall be the Union of India or the State
Government concerned-section 79.

● Mandatory Notice before suit –Section 80.

● Special procedure for suing government or public officers

● Rationale – govt is biggest litigant of our country

● It is mandatory to issue 2 months’ prior notice in writing before

institution of every suit against the Government or a public officer in
respect of any act purporting to be done by such public officer in his
official capacity. “Public Officer” is defined in section 2(17) of the
Code.
● The 2 months shall be calculated from the date of delivery or the date
when it was left at the office of the concerned official.
● The notice should contain the cause of action, the name, description
and place of residence of the Plaintiff, and the relief which he claims.
● Further, the Plaint shall contain a statement that such a notice has
been delivered or left at the office of the Government official
concerned.
● As to who the concerned official would be – see section 80.

● However, under section 80(2), if urgent or immediate relief is sought,

then suit can be instituted without the 2 months’ notice- provided
the leave of the court is obtained. But the court shall not grant any
relief whether interim or otherwise in such a case, except after giving
notice to the Government or public officer concerned.
● Leave of court has to be obtained if you don’t want to give notice – if
matter is so urgent.
● Failure to comply with section 80 will lead to rejection of the Plaint.

● If the Government or public officer concerned fails to object to the

suit instituted without complying with section 80, it would amount to
waiver of the requirement. Government can waive if they don’t object
to your non-compliance w s.80.

● The Government pleader in any court may receive processes against

the Government issued by any court- (Order 27 Rule 4). He need not
file Vakalath.
● Special provisions relating to exemption from arrest and personal
appearance of a public officer. Section 81.
● Special provisions relating to execution of a decree against
Government or public officer. Section 82.

Page 97 of 127
● SUITS INVOLVING A SUBSTANTIAL QUESTION OF LAW AS TO
THE INTERPRETATION OF THE CONSTITUTION OR AS TO THE
VALIDITY OF ANY STATUTORY INSTRUMENT : ORDER XXVII-A

● Any suit in which it appears to the Court that a question referred to

in Article 132 read with Article 147 is involved, the Court cannot
proceed unless notice is given to Attorney- General (if the question
concerns the Central Government) or the Advocate – General (if the
question concerns the State Government). (Rule 1).
● If the suit involves a question as to the validity of any statutory
instrument, then the court cannot proceed without notice to the
Government pleader or the authority which issued the instrument.
(Rule 1A)
● Court may also implead the State or Central Government as a party.
(Rule 2).

● SUITS BY OR AGAINST MILITARY OR NAVAL MEN OR AIRMEN :

ORDER 28.
● If they cannot obtain leave they can authorize any person to sue or
defend for them (Rule 1).

● SUITS BY OR AGAINST CORPORATIONS : ORDER 29

● Pleadings may be signed and verified on behalf of the corporation by

the secretary, any director or other principal officer of the corporation
who is able to depose to the facts of the case. (Rule 1).
● Service on a corporation can be effected by serving the secretary, or
any director, or other principal officer of the corporation or by leaving
the summons or sending it by post addressed to the corporation at
the registered office; if there is no registered office, then at the place
where it carries on business (Rule 2).

● SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON

BUSINESS IN NAMES OTHER THAN THEIR OWN – ORDER 30
● Only the firm needs to be described in the cause title – and that
would amount to all the partners being parties to the suit, as per the
law of partnership. Any one of the partners may verify and sign the
pleadings. (Rule 1).
● The firm is bound to declare in court the names of all its partners.

Page 98 of 127
 (Rules 1 and 2).
● After the declaration, even though the suit may continue in the name
of the firm, the decree will contain the names of all the partners (Rule
2).

● SUITS BY OR AGAINST TRUSTEES, EXECUTORS AND

ADMINISTRATORS – Order 31
● If property is vested in a trustee, executor or administrator, where the
contention is between the person beneficially interested in such
property and a third person, the trustee, executor or administrator
will represent the persons beneficially interested and they need not
be made parties.

● SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND

MIND –Order 32

The next friend of the Plaintiff

● What is the procedure for institution of a suit on behalf of a minor?

Order 32 Rule 1- the suit shall be instituted in his name by the next
friend of the minor. “Minor” defined in the explanation to Order 32
Rule 1.
● What is the effect of instituting a suit without the next friend? Order
32 Rule 2- the Defendant may apply to have the Plaint taken off the
file with costs payable by the pleader concerned.
● The court may order the next friend to give security for the costs of
the Defendant. Rule 2A.
● The eligibility criteria for next friend: any person of sound mind,
attained majority, with no adverse interest and not an opponent party
in the suit; if there is already a guardian declared by competent
authority, then only such a person shall act as next friend unless the
court otherwise directs. Rule 4.
● Safeguards for the minor Plaintiff:

● If the minor has been prejudiced in the suit by virtue of the next
friend having an adverse interest in the subject-matter of the suit,
then decree may bet aside, but not otherwise. Rule 3A. (If decree not
set aside minor Plaintiff can sue next friend for misconduct or gross
negligence.)
● Every application to court shall be made by the next friend. Rule 5. If
an order is passed in the suit without the minor being represented,
the order may be discharged, with costs payable by the pleader.

Page 99 of 127
● The next friend shall not receive money or other movable property on
behalf of the minor in a compromise or under a decree or order in
favour of the minor without the leave of the court. Rule 6. (Court
may require security to protect the property).
● No next friend can enter into any compromise without the express
leave of the court recorded in the proceedings; an application for
leave shall be accompanied by an affidavit of the next friend and by a
certificate of the pleader to the effect that the compromise is for the
benefit of the minor; the court may still examine whether the
compromise is for the minor’s benefit; any compromise entered into
without the leave of the court shall be voidable. Rule 7.
● Next may not retire without first procuring a fit person to be put in
his place and also furnishing security for the costs already incurred.
Rule 8. The application for appointment of a new next friend shall be
supported by an affidavit.
● Court may order next friend to be removed if there is adverse interest,
if he fails to do his duty, ceases to reside in India or for any other
sufficient cause and appoint a new person. Rule 9. On the
retirement, removal or death of the next friend further proceedings
shall remain stayed until a new next friend is appointed.
● Course to be followed upon the minor Plaintiff attaining majority: He
shall elect whether he will proceed with the suit. If he elects to
proceed, he shall apply for an order discharging the next friend and
to proceed in his own name. If he elects to abandon the suit, he shall
apply for an order to dismiss the suit. Rule 12. If he is a co-plaintiff,
he must apply to repudiate the suit and have his name struck off as
a co-plaintiff. The sole-Plaintiff minor upon attaining majority may
also apply that the suit be dismissed on the ground that it was
unreasonable or improper – court may allow the application and
court may order next friend to pay costs. Rule 14. Court has to be
satisfied of unreasonableness. You have to give evidence to prove
your case that person acted improperly.

The guardian of the Defendant

● The court shall appoint a guardian for the suit for a minor defendant.
Rule 3.
● Appointment of guardian for the minor for the suit shall be after
notice to any guardian appointed by a competent authority or the
father or mother or natural guardian. Rule 3.
● The guardian has to swear to an affidavit to the effect that he has no
interest in the matter in controversy adverse to that of the minor and
that he is a fit person to be so appointed. Rule 3.
● The eligibility criteria for guardian : any person of sound mind,
attained majority, with no adverse interest and not an opponent party
in the suit; if there is already a guardian declared by competent
authority, then only such a person shall act as guardian unless the

Page 100 of 127

 court otherwise directs; consent in writing is necessary of the
guardian. Rule 4.
● Safeguards for the minor Defendant:

● The guardian appointed shall continue as such in all proceedings

arising out of the suit including proceedings in any Appellate or
Revisional court and in execution proceedings. Rule 3.
● If the minor has been prejudiced in the suit by virtue of the guardian
having an adverse interest in the subject-matter of the suit, then
decree may bet aside, but not otherwise. Rule 3A. (If decree not set
aside minor Defendant can sue next friend for misconduct or gross
negligence.)
● Every application to court shall be made by the guardian. Rule 5. If
an order is passed in the suit without the minor being represented,
the order may be discharged, with costs payable by the pleader.
● If there be no person fit and willing to act as guardian for the minor
Defendant, court may appoint one of its officers to act as guardian.
Rule 4.
● The guardian shall not receive money or other movable property on
behalf of the minor in a compromise or under a decree or order in
favour of the minor without the leave of the court. Rule 6. (Court
may require security to protect the property).
● No guardian can enter into any compromise without the express
leave of the court recorded in the proceedings; an application for
leave shall be accompanied by an affidavit of the guardian and by a
certificate of the pleader to the effect that the compromise is for the
benefit of the minor; the court may still examine whether the
compromise is for the minor’s benefit; any compromise entered into
without the leave of the court shall be voidable. Rule 7.
● Court may permit the guardian to retire or may even remove him if he
fails to do his duty and shall appoint a new guardian in his place.
Rule 11.

Persons of unsound mind

● Rules 1 to 14 (except Rule 2A) shall apply as far as may be, to

persons adjudged, before or during the pendency of the suit, to be of
unsound mind and shall also apply to persons though not so
adjudged to be found by the court to be incapable by reason of any
mental infirmity of protecting their own interest. Rule 15.

● SUITS RELATING TO MATTERS CONCERNING THE FAMILY –

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 ORDER 32A
● To which proceedings the order applies- Order 32A Rule 1- to suits
or proceedings relating to matters concerning the family, including
suits for matrimonial reliefs, declaration of legitimacy, guardianship
suits, adoption suits, wills and intestacy and succession, etc.
● Special rules: proceedings may be in camera(Rule 2); court has a
duty to make efforts for settlement (Rule 3); court may take the
assistance of a welfare expert (Rule 4).

I.SUITS BY INDIGENT PERSONS (Order 33)

● Who is an “indigent”? Order 33 Rule 1. Too poor to pay courtfees or

somebody who has property worth less than Rs.1000.
● Can a suit be filed by an indigent? Yes. Rule 1 is an enabling
provision. Even a poor person is empowered to file the suit. Court will
exempt you from paying the court fee until the suit ends. If you get
the decree, then court fees can be deducted then.
● What happens when the suit ends? If Plaintiff wins, the court fees
payable shall be recoverable by the State Government from any party
ordered by the court to pay the same (Rule 10). If he loses, or
permission is withdrawn, or suit is dismissed for default, the Court
shall order the Plaintiff to pay the Court fees (Rule 11). If the suit
has abated by death of Plaintiff, then court shall order that the court
fees payable shall be recoverable by the state government from the
estate of the deceased. (Rule 11A).

● What is the special procedure to be adopted for the filing of suits an

indigent?
● Application seeking permission to sue as an indigent person to be
made containing the particulars required in regard to plaints in suits;
a schedule of property belonging to the indigent shall be annexed
thereto with an estimate of the value; it shall be signed and verified
like pleadings. Rule 2.
● The inquiry whether the applicant is indigent shall be made in the
first instance by the chief ministerial officer of the court unless the
court otherwise directs. Rule 1A.
● The application shall be presented by the applicant in person to the
Court unless exempted. Rule 3. Only after he is held to be an
indigent, pleader can be appointed.
● The court will then examine the applicant on the application. Rule 4.

● Court may reject the application at the threshold if the application is

not framed and presented in the manner prescribed; where the court

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 finds he is not an indigent; where he has disposed of property
fraudulently within 2 months from the date of the application; where
the allegations do not show a cause of action; if any other person has
obtained an interest in the subject-matter by virtue of an agreement
entered into by the applicant; if the suit is barred by any law or
where any other person has entered into an agreement with him to
finance the litigation. Rule 5. However, if the court does not reject
the application at the threshold on any of these grounds, it shall fix a
day for receiving the evidence of the Plaintiff and the opposite party
and Government pleader too, after notice to them. Rule 6.
● After evidence, including the examination of witnesses, and the
hearing of arguments, the court shall either allow or refuse to allow
the application. Rule 7.
● Once the application is granted, it shall be deemed the Plaint in the
suit and the suit shall proceed in the ordinary manner except that
the Plaintiff shall not be liable to pay any court fees or service fees.
Rule 8.
● The Court may also assign a pleader to the indigent person if he does
not have one. Rule 9A. but LSC rules don’t mention indigent as a
criteria. So court can give indigent a lawyer under LSC Act, but not
under CPC. Court has lot of powers.
● Can the court withdraw permission to sue as an indigent? Yes. If he is
guilty of improper or vexatious conduct in the course of the suit, if
his means are such that he should not be granted permission to sue
an indigent; or if he has entered into an agreement with regard to the
subject-matter giving any other person an interest therein. Rule 9.
● What happens when the suit ends? If Plaintiff wins, the court fees
payable shall be recoverable by the State Government from any party
ordered by the court to pay the same (Rule 10).If he loses, or
permission is withdrawn, or suit is dismissed for default, the Court
shall order the Plaintiff to pay the Court fees (Rule 11). If the suit
has abated by death of Plaintiff, then court shall order that the court
fees payable shall be recoverable by the state government from the
estate of the deceased. (Rule 11A).
● What are the rights of the State Government regarding Court Fees?
State Government has the right to apply for an order under Rules 10,
11 or 11A for payment of court fees (Rule 12). All matters between
the State Government and the parties shall be deemed to fall under
section 47 (Rule 13). Once an order is made for recovery, the
Collector shall recover as an arrear of land revenue. (Rule 14).
● If an application seeking leave to sue as an indigent is rejected, fresh
application is barred; but applicant can sue in the ordinary manner
subject to payment of the costs of the application failing which Plaint
shall be rejected. Rule 15.
● Court has power to grant time for payment of court fees. Rule 15A.
Upon such paymentsuit deemed to be instituted on the date on
which application filed.

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● Defence by an indigent by way of set-off or counter-claim – same
procedure. Rule 17.
● Power of Government to provide free legal services to indigent
persons. Rule 18.

● SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY

(Order 34)
● What are the different types of reliefs that parties to a mortgage
transaction might seek from the civil court?
● What procedures would apply to each type of suit?

● When a party sues, mandatory to pass prelim decree. Then only final
decree.

● INTERPLEADER SUITS (Order 35)

● What is an interpleader suit? Someone wants to relieve themselves of

their liability and give custody of the property to the court. Third
party is the plaintiff, and both the other parties will be defendants in
the case. Then after third party leaves, one of the defendants will
become the next plaintiff. Usually a bank may do this.
● What are the matters to be stated in the Plaint in an Interpleader
suit? (Rule 1)
● What procedure can be adopted in Interpleader suits at the first
hearing to discharge the Plaintiff? Rule 4.

● Friendly suits (Section 90, Order 36)

● What is the procedure for stating a case for the court’s opinion?
Parties should enter into an agreement in writing with the proposed
relief (Rule 1). The parties shall also mention the estimated value of
the property in the agreement. They both want one thing – jointly
agreed to suit and will abide by court’s decision. Estopped from
appealing.
● The agreement shall be filed and registered as a suit (Rule 3) and
shall be heard like a regular suit (Rule 5). Thereupon judgment will
be pronounced and a decree will follow.
● No appeal can be filed against the decree as per Rule 6. But if fraud
or something, then it will be a decree that violates the agreement or

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 like if somebody impersonates or misrepresents one of the parties,
etc. you can say the agreement is a sham.
● You may not file an appeal but file a suit to set aside the point.

● Similar to order 14 rule 6:

6. Questions of fact or law may by agreement be stated in form of issues.—(1) Where the parties

to a suit are agreed as to the question of fact or of law to be decided between them, they may state the

same in the form of an issue, and enter into an agreement in writing that, upon the finding of the
Court in

the affirmative or the negative or such issue,—

(a) a sum of money specified in the agreement or to be ascertained by the Court, or in such

manner as the Court may direct, shall be paid by one of the parties to the other of them, or that one of

them be declared entitled to some right or subject some liability specified in the agreement;

(b) some property specified in the agreement and in dispute in the suit shall be delivered by one

of the parties to the other of them, or as that other may direct; or

(c) one or more of the parties shall do or abstain from doing some particular act specified in the

● agreement and relating to the matter in dispute.

● Suits relating to public nuisance (Section 91)

● What are the essential ingredients of a suit under section 91 of the

Code?
91. Public nuisances and other wrongful acts affecting the public.—2[(1) In the case of a public

nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and
injunction

or for such other relief as may be appropriate in the circumstances of the case, may be instituted,—

(a) by the Advocate-General, or

(b) with the leave of the Court, by two or more persons, even though no special damage has been

caused to such persons by reason of such public nuisance or other wrongful act.]

(2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may

exist independently of its provisions.

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 ● Suits relating to public charities (Section 92)

● What are the essential elements of a suit under section 92 of the

Code?

● Summary suits (Order 37)

● Mostly in suits where there is no valid defence – like if you have a

promissory note. You don’t need a big trial.
● To which classes of suits does the summary procedure under Order
37 apply? Rule 1(2).
(2) Subject to the provisions of sub-rule (1), the Order applies to the following classes of suits.

namely:—

(a) suits upon bills of exchange, hundies and promissory notes;

(b) suits in which the plaintiff seeks only to recover a debt or liquidated demand in money

payable by the defendant, with or without interest, arising,—

(i) on a written contract; or

(ii) on an enactment, where the sum sought to be recovered is a fixed sum of money or in the

nature of a debt other than a penalty; or

(iii) on a guarantee, where the claim against the principal is in respect of a debt or liquidated demand
only.]

● What are the procedural requirements for filing a summary suit?

Rule 2: Plaint to contain specific averment that suit is filed under
Order 37, that no relief has been claimed outside the ambit of Order
37 and an appropriate inscription.
● What are the distinguishing features of summary suits?

● The defendant has no right to defend the suit but must appear and
seek leave to defend the suit. Only if such leave is granted the suit
will be heard in the ordinary manner.
● If there is default on the part of the Defendant in entering appearance
the Plaintiff shall be entitled to a decree forthwith (Rule 2(3)).
● After appearance of the Defendant, Plaintiff shall serve a summons
for judgment in Form No. 4A in Appendix B stating that there is no
defence to the suit. The Defendant may, within 10 days from the
service of such summons, apply for leave to defend the suit by
swearing to an affidavit. Only if the court is satisfied that he has a
substantial defence and that it is not frivolous or vexatious it may
grant leave. (Rule 3(5)).

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 ● Thereupon the court may direct the Defendant to give security for the
suit. Rule 3(6).
● The court however has the discretion to excuse delay in entering
appearance or in applying for leave. (Rule 3(7)).
● If a decree has already been passed then under special
circumstances, the court is empowered to set aside its own decree
and stay execution and grant leave to the Defendant to defend. (Rule
4).

BASIC READING
● Sections 79 to 82, 90, 91, 92 and Orders XXVII to XXXVII of CPC,
1908

ADDITIONAL READING

Takwani Part 2, Chapter 16

WEEK 7

MISCELLANEOUS PROVISIONS IN THE CODE

A. EXEMPTIONS FROM APPEARANCE AND ARREST UNDER THE

CODE- Sections 132 to 135A
● Can a woman who, according to the customs and manners of
the country ought not to be compelled to appear in public be
compelled to attend court? Section 132. Can such a person be
arrested in execution of civil process?
● Who are the other persons exempt from personal appearance in
court? Section 133. How can such persons be examined?
● Which persons are exempt from arrest under civil process and
when exactly are they exempt? Sections 135 and 135A.

B. PROCEDURE WHERE PERSON TO BE ARRESTED OR PROPERTY

TO BE ATTACHED IS OUTSIDE THE JURISDICTION-section 136.
● Does section 136 apply to arrest and attachment during
execution proceedings?

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C. LANGUAGE OF SUBORDINATE COURTS – SECTIONS 137 AND
138.

D. OATH ON AFFIDAVIT BY WHOM TO BE ADMINISTERED –

SECTION 139.

E. ASSESSORS IN CAUSES OF SALVAGE, ETC. – SECTION 140.

F. MISCELLANOUS PROCEEDINGS- SECTION 141

● Does the procedure contemplated in the Code in relation to

suits apply in writ proceedings?

G. ORDERS AND NOTICES TO BE IN WRITING- SECTION 142

H. POSTAGE-SECTION 143

I. RESTITUTION – SECTION 144.

● What is “restitution”? Even though not defined in the Code, it

means restoring a party the benefit which the other party has
received under a decree subsequently held to be wrong.
● Based on the principle actus curiae neminemgravabit– the act of
the court shall harm no one. An equitable principle. It is the
bounden duty of the court to see that if a person is harmed by
a mistake of the court he should be restored to the position he
would have occupied but for that mistake.
● Note the definition of “decree” in section 2(2).

● What are the pre-conditions for an order of restitution? Before

which courts can such applications be made? What is the aim
of restitution? What is the scope of orders that can be passed in
restitution?
● Does a suit lie to obtain restitution?

J. CONSENT OR AGREEMENT BY PERSONS UNDER DISABILITY –

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 SECTION 147.

K. ENLARGEMENT OF TIME – SECTION 148.

● Under what circumstances can the court enlarge the time given
for a particular act to be done?

L.CAVEAT – section 148A

● What is a “caveat”? A caveat is an entry made in the books of

the offices of a registry or court to prevent a certain step being
taken without previous notice to the person entering the caveat.
● When can it be lodged? What is the procedure for lodging a
caveat?
● What does a caveat entitle the caveator to?

● What procedure should be adopted if an application is made in

a matter where caveat has been lodged?
● What is the effect of hearing and allowing an application
without the caveator being notified?

L. POWER TO MAKEUP DEFICIENCY OF COURT FEES- SECTION

149.

M. TRANSFER OF BUSINESS – SECTION 150.

N. SAVING OF INHERENT POWERS OF THE COURT – SECTION 151.

● What are “inherent” powers? Why is there a need to make

reference to them?
● Are inherent powers conferred on the civil court by section 151?

● Which provisions of the Code relate to inherent powers?

Sections 148, 149, 151, 152, 153, 153A.
● Examples of situations where section 151 has been invoked:
temporary injunctions not covered by Order 39, clubbing of
suits, directions for in camera proceedings, etc.
● Padam Sen vs State of Uttar Pradesh AIR 1961 SC 218.

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 O. Amendments of judgments, decrees or orders – section 152.
● What types of mistakes can be corrected under section 152?

P. General power to amend- section 153

● What types of amendments may be made under section 153?

Q. Power to amend decree or order where appeal summarily

dismissed- section 153A
● What was the need for section 153A and when does it
specifically apply?

R. Place of trial deemed to be open court- section 153B

BASIC READING

● Sections 132 to 144, 147 to 153B of CPC, 1908;

● Padam Sen vs State of Uttar Pradesh AIR 1961 SC 218

ADDITIONAL READING
Takwani Part 5, Chapters 2,3,4.

Module 3

Remedies under the Code: Appeals, Reference, Review and Revision. In this
module we will cover all the remedies available under the CPC once a decree has
been passed. This will involve advocacy at appellate, High Court and Supreme
Court stages.

WEEK 8

APPEALS UNDER THE CODE

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 FIRST APPEALS FROM DECREES

1. Basic principles

● Which provisions of the Code relate to First Appeals from decrees?

Sections 96 to 99A, 107 to 108 and Order 41.
● Does an appeal lie as a matter of right from every decree passed by a
civil court? Yes – under section 96, subject to the pecuniary limit
under section 96 (4). This is unlike appeals from orders, wherein
appeals will lie only if expressly mentioned in the Code.
● What is an “appeal”? There is no definition of “appeal” under the Code
but any application by a party to an appellate court asking it to set
aside or revise the decision of a subordinate court is an appeal. It
could also be defined as the judicial examination of a decision of an
inferior court by a higher court.
● Why is it said that an appeal is a continuation of the suit? The
appellate court generally has the powers of the subordinate court and
re-hears the matter.
● Does an appeal lie against a judgment of the trial court? Under section
96, appeals are provided only against every decree of the court
exercising original jurisdiction. But this is a grey area, especially in
view of Order 41 Rule 22 which enables a cross-objector to prefer
objections even against any findings of a trial court.
● If an original decree is passed ex parte, does an appeal lie? Yes,
section 96(2).
● If a decree is passed with the consent of the parties, can an appeal lie?
Only if the very factum of compromise or consent is questioned, an
appeal will lie. BanwariLal vs Chando Devi (1993) 1 SCC 581.
● Can grounds against a preliminary decree be raised in an appeal
against the final decree? No. Section 97.
● What is the procedure to be followed when an appeal is heard by a
Bench of 2 or more judges?Section 98.
● Who can appeal against a decree? The parties, and with the leave of
the court (through an application), any person aggrieved by the
decree.
● Can a decree be reversed on technical pleas such as misjoinder of
parties or causes of action and irregularities in procedure? Only if it is

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 established before the appellate court that it has affected the merits
of the case or the jurisdiction of the court. Section 99.
● What is the doctrine of merger? Once the appellate court has passed a
decree, the decree of the trial court merges with the decree of the
appellate court leaving only 1 executable decree.
● What is the manner of preferring an appeal?Order 41 Rule 1 – every
appeal shall be preferred in the form of a Memorandum signed by the
appellant or his pleader and presented to the Court or such officer as
it appoints.
● What is the difference in nomenclature insofar as an “appeal” and a
“memorandum of appeal” are concerned? An appeal is the judicial
examination of the decision of the lower court whereas the
Memorandum of Appeal is the document containing the grounds
upon which the judicial examination is invited.
● What is the date of filing of an appeal? The date of receipt of the
Memorandum of Appeal – this date will be taken into account for
limitation purposes.
● What is the mandatory requirement relating to money decrees?
Appellant must deposit the disputed amount or furnish security
within the time specified by the Appellate Court.

2. Memorandum of appeal

● What should the Memorandum of Appeal contain? Under Order 41

Rule 1 (2), the grounds of objection to the decree appealed from shall
be set forth concisely and under distinct heads, without any
argument or narrative.
● What are the rules relating to urging grounds not taken in the
Memorandum of Appeal? Appellant shall not, except by leave of the
court, be heard on any objection not set forth in the memorandum;
but this does not hamper the power of the appellate court to decide
the appeal on any ground/objection not taken in the memorandum
provided that the party affected is given an opportunity of contesting
the case on that ground. Order 41 Rule 2.
● Memorandum of appeal may be rejected or returned for amendment if
not drawn up in the manner prescribed. Rule 3.

3. Delay at appellate stage

● What procedure should be adopted if the appeal is barred by time? An

application for condonation of delay supported by affidavit showing
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 sufficient cause should be filed with the appeal. The court may reject
the application and dismiss the appeal or issue notice on the
application to the Respondent. Delay shall be condoned first before
the appeal is taken up for admission. Nor can stay be granted of the
decree until the delay is condoned and the appeal admitted. Rule 3A.

4. Power of appellate court to grant relief to all

● One of the parties may obtain reversal or variation of the decree for all
the parties where the ground of appeal is common to all the parties.
But this is the discretion of the appellate court. Order 41 Rule 4.

5. Stay of execution

● What are the rules relating to grant of stay of execution of a decree?

Mere filing of an appeal does not operate as stay. But appellate court
may stay execution for sufficient cause. The stay order will be
effective from the date of communication of such order to the court of
first instance. (see Explanation to Rule 5) The court passing the
decree may also stay execution. The parameters for exercise of
discretion for grant of stay are: substantial loss to appellant being
caused; application made without unreasonable delay and that
security has been furnished by the appellant for due performance of
the decree. Rule 5.Note that Rule 6(2) states that where an order has
been made for the sale of immovable property in the execution of a
decree and an appeal is pending from such decree, the sale shall, on
the application of the judgment debtor, be stayed on terms regarding
security.

6. Stages of hearing an appeal

● What are the different stages before an appellate court for the hearing
of the appeal?There is an admission stage and a final hearing stage.
At the admission stage, the appellate court may dismiss the appeal at
the threshold after hearing the appellant without issuing notice to the
other side if no prima facie case is made out. However, even if the
appeal is dismissed at this stage, the appellate court shall deliver a
judgment recording in brief its reasons for so doing and a decree shall
then be drawn up. (Rule 11).Under Rule 11A the admission stage
should be concluded within 60 days from filing. However, if the
appellate court decides to hear the appeal and admits it, then it shall
fix a day for the hearing of the appeal (Rule 12), ensure service of
notice to the Respondent (Rule 14), and then hear the matter after
Respondent is served (Rule 17).

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 7. Other Rules at Appellate Stage

● What is the Register of Appeal? Rule 9.

● How is the Respondent served at the appellate stage? In the same

manner as service on a Defendant of a summons. The appellate court
may send the notice to be served to the lower court or itself cause the
notice to be served. Rule 14.
● Can the appellate court require the appellant to furnish security for
costs?Yes, Rule 10.
● Who has the right to begin arguments at the appellate stage? Rule16.

● Default at appellate stage.Appeal may be dismissed for non-

appearance in which case the appellant must apply under Rule 19
for re-admission of the appeal dismissed under Rules 11 or 17and
show sufficient cause. However, once the appeal is admitted, Rule 17
bars the dismissal of the appeal on merits. If an ex parte decree is
passed against the Respondent, he must apply under Rule 21for re-
hearing.
● Appellate court may direct impleadment of a party not impleaded in the
appeal.Rule 20.

8. Cross-appeals and cross-objections

● What is the privilege granted with regard to a respondent at appellate

stage? Respondent may, even though he has not preferred an appeal,
support the decree and argue that some finding should have been in
his favour. He may also file cross-objections within 1 month from the
date of service of notice of day fixed for hearing the appeal, even
raising objections regarding findings against him in the judgment.
Rule 22. This is anomalous when contrasted with the right of an
appellant under section 96. Even if the original appeal is withdrawn
or dismissed for default, the objections will be heard.

9. Remand by the appellate court

● Under what circumstances can the appellate court remand a matter?

Where the appellate court reverses decree on a preliminary point the
appellate court may by order, remand the case (Rule 23), or, if the
appellate court considers that a re-trial is necessary, it may remand
the case under Rule 23A.

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● What are the other procedures that may be adopted by the appellate
court? Where evidence on record is sufficient, the appellate court,
after re-settling issues may finally determine the suit. Rule 24. If the
lower court has omitted to frame an issue or try an issue, or
determine any question of fact, the appellate court may frame issues
and refer the same for trial to the lower court. The lower court shall
try such issues and return the evidence to the appellate court
together with its findings thereon and the reasons thereof. Rule 25.
See also Rules 26 and 26A.

10. Production of additional evidence in appellate court

● Is any party entitled, as a matter of right, to produce additional

evidence at the appellate stage? No. Only if the pre-conditions
mentioned in Order 41 Rule 27 are satisfied, additional evidence be
permitted.
● Procedure for taking additional evidence. Rules 27(2), 28 and 29.

11. Judgment and decree in appeal

● What are the requirements to be followed by a judgment in appeal? It

should be pronounced in open court and a copy shall be made
available immediately after the judgment is pronounced. Rule 30.
The judgment shall be in writing and shall state the points for
determination, the decision thereon, the reasons for the decision and
the relief to which the appellant is entitled and shall be signed and
dated by the judge. Rule 31. These requirements are mandatory and
failure to comply will result in reversal at SLP stage – Kanailal vs
Ram Chandra Singh (2018) 13 SCC 715.
● What may the judgment direct? The judgment may confirm, vary or
reverse the decree or substitute a consent/compromise decree in
place of the decree of the lower court. Rule 32.
● Powers of appellate court to pass any decree or make any order even if
appeal against part of decree or by some of the parties. Rule 33.
● Dissent to be in writing with reasons.Rule 34.

● What are the requirements of a decree in appeal?Rule 35.

12. General provisions relating to powers of appellate courts

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● The appellate court shall have the same powers and duties as courts
of original jurisdiction (sections 107, 108).

BASIC READING
● Sections 96 to 99A, 107 to 108 and Order XLI of CPC, 1908;

● BanwariLal vs Chando Devi (1993) 1 SCC 581;

● Kanailal vs Ram Chandra Singh (2018) 13 SCC 715

SECOND APPEALS

Basic principles

● Which provisions of the Code relate to Second Appeals from decrees?

Sections 100 to 103, 107 to 108 and Order 42.
● Does an appeal lie as a matter of right from every decree passed in
appeal? No– under sections100 and 101, an appeal shall lie to the
High Court from every decree passed in appeal by any court
subordinate to a High Court if the High Court is satisfied that the
case involves a substantial question of law, subject to the pecuniary
limit in section 102. The memorandum of appeal shall precisely state
this question; the High Court shall admit the appeal only by framing
such a question and further, the appeal shall be heard only on the
question so formulated.
● Can there be cases where there is no second appeal?Under section
100A, where an appeal from an original or appellate decree is heard
by and decided by a single judge of a High Court, no further appeal
shall lie.
● What is a “substantial question of law”?Chunilal V. Mehta and Sons
Ltd vs Century Spinning and Manufacturing Co Ltd AIR 1962 SC
1314- the considerations would include- whether it directly and
substantially affects the rights of the parties; whether it is of general
importance; whether it is an open legal question unsettled by judicial
dicta; no universal rule- depends on the facts and circumstances of
each case. The Law Commission 54th Report however, suggested
that it should not be limited to questions of general importance.
● Does the second appellate court nonetheless have some power to enter
upon factual issues?Section 103- any issue not determined by the
lower courts if evidence on record is sufficient may be decided and
any issue which has wrongly been decided as a consequence of a

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 decision on a question of law referred to in section 100 may be
determined.

BASIC READING

● Sections 100 to 103, 107 to 108 and Order XLII of CPC, 1908;

● Chunilal V. Mehta and Sons Ltd vs Century Spinning and

Manufacturing Co Ltd AIR 1962 SC 1314

APPEALS FROM ORDERS

Principles

● Which provisions of the Code relate to appeals from orders?Sections

104 to 106, 107 to 108 and Order 43.
● Does an appeal lie as a matter of right from every order passed? No–
under section 104, an appeal shall lie only from the orders
mentioned therein and the orders against which appeal is expressly
allowed by the Rules. Thus, section 104 would need to be read with
Order 43 Rule 1 to determine if an appeal lies in a given case against
an order.
● Can there be a second appeal in the case of orders?No – section 104
(2) bars it.
● If no appeal is provided by the Rules or section 104 from an order, how
can it be assailed? File a writ under Article 227 or raise this as a
ground in an appeal from the decree under section 105. However
this does not apply to orders passed in remand.
● Which court will hear an appeal from an order? The court to which an
appeal would lie from the decree in the suit (section 106).

BASIC READING
● Sections 104 to 106, 107 to 108 and Order XLIII of CPC, 1908

APPEALS TO THE SUPREME COURT

Principles

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 ● Which provisions of the Code relate to appeals to the Supreme Court?
Sections 109, 112 and 107 to 108 and Order 45.
● Does an appeal lie as a matter of right to the Supreme Court? No – in
civil matters persons can approach the Supreme Court under
Articles 132 (certificate appeal where High Court certifies that the
case involves a substantial question of law as to the interpretation of
the constitution); under Article 133 (if High Court certifies that the
case involves a substantial question of law of general importance and
that the said question needs to be decided by the Supreme Court);
and under Article 136 (SLPs).
● Which other rules govern appeals to the Supreme Court? The Supreme
Court Rules made under Article 145 that override the provisions of
the Code in case of inconsistency. Section 112.
● What is the procedure to prefer a certificate appeal on the civil side to
the Supreme Court under Article 133?The procedure is laid out in
Order 45. Application needs to be made by petition stating the
grounds of appeal and praying for a certificate (Rule 3). Thereupon
notice shall be served on the opposite side (Rule 3). Upon grant of
certificate, the High Court shall require security for costs from the
applicant, require deposit of amount for preparing and transmitting
the paper-book, declare the appeal admitted, transmit the record to
the Supreme Court and furnish copies of the paper-book to the
parties. Rules 7 and 8. The High Court may also stay the execution
of the decree (Rule 13).
● What is the procedure to enforce orders of the Supreme Court? Order
45 Rule 15.

BASIC READING

● Sections 109, 112 and 107 to 108 and Order XLV of CPC, 1908;

● Articles 132, 133, 136 and 145 of the Constitution of India

WEEK 9

REFERENCE

● Which provisions of the Code relate to Reference?Section 113 and

Order 46.

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● When can a reference be made?Any court wherein the decree is not
subject to an appeal, maysuomotu or on the application of the parties
may make a reference on any question of law to the High Court
(section 113 read with Order 46 Rule 1). In some situations
reference is compulsory – proviso to section 113.
● What is the procedure for a reference?See rules 1 to 5.

REVIEW

● Which provisions of the Code relate to Review?Section 114 and Order

47.
● What is a “review”? It is a judicial re-examination of the case by the
same court and by the same judge.
● When can review jurisdiction be exercised?A person aggrieved by a
decree or order from which no appeal is allowed or from which no
appeal has been preferred though allowed or by a decision on a
reference from a Court of Small Causes who discovers new or
important matter or evidence that was not within his knowledge or
could not have been produced in spite of due diligence earlier or on
account of some mistake or error apparent on the face of the record
or for any other sufficient reason, may apply for review to the Court
which passed the decree or made the order. Order 47 Rule
1.Further, if an appeal has been preferred by another party on the
same ground, he cannot seek review but must approach the appellate
court.
● Is the principle of ejusdem generis applicable to the phrase “any other
sufficient reason”?
● What is the form to be used for review? Same form as appeals (rule 3).

● What is the procedure for a review?See rules 4 to 9. Notice should be

given to the opponent. An order of rejection is not appealable.
Further, review of order passed in review is impermissible.

REVISION

● Which provisions of the Code relate to Revision?Section 115.

● What is the rationale for revisional jurisdiction?

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 ● What are the pre-conditions for its exercise?

● Have amendments to section 115 rendered revisonal jurisdiction

redundant?

BASIC READING

● Sections 113 to 115 and Order XLVI to XLVII.

Module 4

In this module we will cover statutes that are closely connected with the CPC and
are essential for civil practice namely, limitation, specific relief, court fees and
suits valuation, and the civil rules of practice.

Week 10

A. PAYMENT OF COURT FEES AND VALUATION OF SUITS

INTRODUCTION

⮚ Before Independence, the British had enacted the Court Fees Act,
1870, which for the first time introduced the idea of collecting
revenue from litigation and also to prevent vexatious and frivolous
litigation.
⮚ After Independence, court fees fall under Entry 3 of List II and thus
are within the exclusive competence of the State Legislatures.
⮚ Many states like Karnataka, West Bengal, Maharashtra and Kerala
have brought in force their own complete codes on the subject,
repealing the 1870 Act.
⮚ However other states have adopted the central act of 1870 with state
amendments.
⮚ Law Commission has recommended abolition since justice should not
be taxed.
⮚ However, constitutionality has been upheld, including ad valorem
fees.

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⮚ However, should note distinction between a tax and a fee. With regard
to a fee, there should be a broad correlation between the fees
collected and the cost of administration of civil justice. However, there
can be no quid pro quo.
⮚ In case of interpretive issues, construction beneficial to the litigant
should be given.
⮚ We shall look at only salient features of the Karnataka Court Fees
and Suits Valuation Act, 1958.

SALIENT FEATURES OF THE KARNATAKA COURT FEES AND SUITS

VALUATION ACT, 1958

⮚ Section 4 provides that no document which is chargeable with fee

under the Act shall be filed in any court unless there has been paid
the court fee as indicated under the Act; but court can exempt
payment in criminal matters; State Government filing is also exempt.
⮚ Section 5: Court can permit payment to be made up if document
inadvertently received.
⮚ Section 6: Multifarious suits– what court fee will be chargeable on
the Plaint.
⮚ Section 7: Wherever fee depends on the market value of any
property, such value shall be determined on the date of presentation
of the Plaint. Further, by virtue of deeming provision, for the lands
(revenue lands and estates) falling under certain sections, the market
value shall be calculated as per the formulae provided in section 7(2).
⮚ Section 8: Set off and counter claim shall be chargeable in the same
manner as a Plaint.
⮚ Section 9: Documents falling under two or more descriptions – the
highest of the fees.
⮚ Section 10: In every suit in which fee payable depends upon the
market value of subject-matter, Plaint has to contain a statement of
the particulars of the subject-matter and valuation.
⮚ Section 11 and 14 : Issue regarding court fee shall be decided before
any other.
⮚ Section 12 : Additional fee on issues framed.

⮚ Section 13: relinquishment of portion of court fee permissible to

avoid paying more.
⮚ Sections 15 and 16: Provisions of sections 10 to 13 shall apply to

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 fees on Memorandum of appeal, cross-objections, petitions,
applications and other proceedings.
⮚ Section 17: High Court may depute court fee examiners

⮚ Section 18: Court may hold inquiry and also appoint commissioner
for deciding whether valuation correct.

COMPUTATION OF FEE

⮚ Note sections 21 to 47 – different types of suits and the fees payable;

to be read with the Schedules I and II
⮚ Sections 48 and 49 – appeals.

VALUATION OF SUITS

⮚ It is also provided for in the same act.

⮚ Under section 50, if specific provision not otherwise made in the Act
or in any other law, valuation for the purposes of determining the
jurisdiction of the court and valuation for the purposes of court fees
shall be the same.
⮚ Under the proviso to section 50, with regard to lands under section
7(a), (b) and (c), valuation for jurisdiction shall be the market value of
the land, not the formula given in section 7. Thus, with regard to such
lands, valuation for jurisdiction and court fees would be different.
⮚ Under section 50(2) if court fee payable under the Act at a fixed rate,
the value for jurisdiction shall be the market value or the amount
stated in the Plaint.
⮚ Section 51: procedure where objection taken in appeal or revision
that suit or appeal not properly valued for jurisdictional purposes.
(overrides section 99 but inserts its own threshold)

REFUNDS AND REMISSIONS: SECTIONS 63 TO 70

SCHEDULE 1:Ad valoremfees : note in particular Plaints, Application for

review.

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SCHEDULE II: fixed fees. Note all important documents.

BASIC READING

● Karnataka Court Fees And Suits Valuation Act, 1958

B. The Limitation Act, 1963

INTRODUCTION

⮚ Historically, it would appear that there was either no law of limitation

in some countries or that the law was not uniform, such as in Britain.
Only in 1862 the Limitation Act was made applicable to the whole of
India. Thereafter the Act was replaced by the Acts of 1871, 1877 and
1908. In 1963 the current Limitation Act came into force.
⮚ The Limitation Act is understood to be a statute of repose, peace and
justice. It is a matter of repose because it extinguishes demands and
quiets title. It assumes that a right not asserted for a long time is
non-existent. Parties should not be in a constant state of doubt and
uncertainty. Further, parties might have lost the evidence to establish
their claims if stale claims are permitted. Stale claims do more harm
than good.
⮚ It is said that whilst limitation bars the remedy, it does not bar the
right. Further, a defendant may raise a plea in defence which he
might not be able to raise by filing a suit.
⮚ We shall look at only salient features of the Limitation Act, 1963.

SALIENT FEATURES OF THE LIMITATION ACT, 1963

⮚ Section 2 provides important definitions such as“application”,

“period of limitation”, “prescribed period” and “suit”. Note that the
three important categories under the Act are “applications”, “suits”
and “appeals” and these are mutually exclusive categories.
⮚ Section 3 provides that subject to sections 4 to 24, every suit
instituted, appeal preferred and application made after the prescribed
period shall be dismissed even though limitation has not been set up

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 as a defence. Thus, the court is mandated to dismiss barred matters –
however, if the plea of limitation is raised for the first time at a late
stage or in appeal, courts will generally not entertain the plea if it is a
question of fact or a mixed question of law and fact.
⮚ Note the difference in treatment of set-off and counter-claim in
section 3.
⮚ Under section 4 if the prescribed period expires on a day when the
court is closed, the matter may be filed on the day the Court re-
opens.
⮚ Under section 5, any appeal or application may be admitted after the
prescribed period, if the applicant or appellant satisfies the court that
he had sufficient cause for not preferring the appeal or making the
application within time.
⮚ If a person suffers from legal disability at the time from which the
disability is to be reckoned, then the time during which he suffered
from that disability is excluded. Sections 6 to 9. However, under
section 9 once time has begun to run, no subsequent disability stops
it.
⮚ Suits against trustees and their representatives shall not be barred by
any length of time under section 10.
⮚ Suit instituted on contracts entered into in foreign countries shall be
subject to the rules of limitation contained in the Act under section
11.
⮚ Other exclusions:

● Exclusion of time in legal proceedings – section 12.

● Exclusion of time where leave to sue or appeal as a pauper

applied for- section 13.
● Exclusion of time proceeding bona fide in court without
jurisdiction- section 14.
● Exclusion of time in other cases- section 15.

● Effect of death on or before accrual of the right to sue- section

16.
● Effect of fraud or mistake-section 17.

● Effect of acknowledgement in writing –section 18.

● Effect of payment on account of debt or interest on legacy-

section 19.
● Effect of acknowledgement or payment by any person- section

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 20.
● Effect of substituting or adding new plaintiff or defendant-
section 21.
● Continuing breaches and torts – section 22.

● Suits for compensation for acts not actionable without special

damage – section 23.
⮚ The Schedule – First Division – suits; second division –
appeals; third division – applications.

BASIC READING
● Limitation Act, 1963

Additional Resources (Indicative only)

1. The Code of Civil Procedure (as amended by act No. 46 of 1999) Vol. I & II
by B.V. VishwanathaAiyer, 2000.

2. Code of Civil Procedure: Act V of 1908 Vol. I to IV by Mulla D F, 2002.

3. Code of Civil Procedure (as amended by CPC (Amendment) Act, 1999 and
CPC (Amendment) Act, 2002) Vol. I & II, by Sudipto Sarkar &Manohar V
R, 2002.

4. Code of Civil Procedure by Thakker C K &Thakker M C, 2000.

5. On Civil Procedure by JA Jolowicz, Cambridge University Press, 2000.

6. A Treatise on the Anglo-American System of Evidence in Trials at Common

Law, by John Henry Wigmore, Third Edition, Little, Brown and Co,
Boston, 1940.

7. The following Law Commission of India Reports: 14 th, 27th, 54th, 69th,
74th, 77th, 79th, 114th, 120th, 124th, 125th, 131st, 139th, 140th, 144th, 150th,
163rd, 178th, 185th.

8. Report of the Committee on Reforms of Criminal Justice System, Volume

1, March 2003.

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 9. Report of the Arrears Committee, 1989-1990.

PROJECT GUIDELINES

A. PROJECT GUIDELINES

⮚ Students are free to choose any topic they like from the list furnished.

⮚ The topics given are examples and students are welcome to design their
own topics. However, those who have done practical topics in CPC1 will be
required to do theoretical topics in CPC2 and vice versa.
⮚ All students including carry-over students must mandatorily register their
topics within the first few days of the course with the course teacher, failing
which a topic will be automatically assigned.
⮚ A maximum of 2 students per topic is permitted.

⮚ Maximum 2000 words excluding footnotes.

⮚ Regarding case-law: The facts of all cases referred to in the projects should
be mentioned in footnotes unless a passing mention is made of a case. If a
case is referred to in passing, this should be clearly indicated in the footnote
as “in passing”.
⮚ Regarding Articles: A summary of any article referred to in the projects
should be mentioned in footnotes unless a passing mention is made. If an
article is referred to in passing, this should be clearly indicated in the
footnote as “in passing”.
⮚ Students will be asked questions on the references given and so should only
include references that they have actually read thoroughly.
⮚ With regard to all the topics, students might benefit from the following
sequence of work: identify the relevant statutory rules and read them
thoroughly; then go through the case-law starting with the Supreme Court
cases; identify interpretive issues that arise and see whether these have
been answered. The goal is to arrive at the principles underlying that area of
law. If there is an area of interpretive doubt, explore this further through
case-law. You could also look at the utility of the rules in question; how the
Law Commission has dealt with them; compare and contrast with similar
rules in other jurisdictions; and finally critically evaluate the rules with a
view to reform.
⮚ Students are required to strictly follow the relevant UGC and University
guidelines relating to the manner of quoting and using the works of others.
Any projects indicating plagiarism as per Turnitin or other applications will
be referred as a matter of course for disciplinary action.

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B. (ONLINE) CLASSROOM RULES AND PROTOCOLS

● All students are expected to be fully ready with their study of the basic
course materials for the class; any student may be asked to answer
questions in class, in addition to the students leading the discussion for
that day. Students unable to answer basic questions due to lack of
preparation will be marked absent.
● Regarding online classes, whenever a student is called upon by the course
teacher she must respond within 10 seconds failing which the teacher
would mark the student absent. Any explanation offered on grounds of
disconnection, etc., will be referred to the NLSIU IT expert and only then
accepted, if at all.
● It is mandatory to switch on your video whilst talking in online classes, as a
matter of courtesy to students and the teacher and also so that the class is
more interactive.
● Please use the “raise hand” option in zoom if you want to clarify something
or interject, to prevent several persons from talking at once.
● The chat option may only be used as permitted by the course teacher and
only to post messages to the class, not to each other.
● This is a course that relies heavily on classroom discussions to raise the
level of engagement and study. Each and every student in the class will be
expected to contribute to classroom interaction – whether by way of
agreement, opposition or neutral ruminations.

C. USAGE OF HANDOUTS
● The course teacher asserts his intellectual rights over the handouts, course
template, and outline. You may only use the same for the purposes of this
course of study at NLSIU. Any unauthorized use, including commercial
usage of the same, is prohibited.
Dr. Nanda Kishore

Course Teacher

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