NOTES

On
CIVIL PROCEDURE CODE, 1908
(MGU Syllabus)

MODULE 1

SUITS IN GENERAL
The term ‘suit’ is not defined in CPC. But by virtue of various decisions, it can be said that “suit means a
civil proceedings instituted by presentation of a Plaint”. Thus, a civil suit is a suit to enforce civil rights.

Essentials of a Suit
i. Two parties - there must be atleast 2 parties in a suit, ie, Plaintiff and defendant. There can be more than
one plaintiffs and defendant.
ii. Cause of Action - it is the reason or set of circumstances which led to the suit. The plaintiff needs to
prove the cause of action.
iii. Subject Matter - it is the right or property claimed by the plaintiff in the suit.
iv. Relief claimed - every suit must contain the relief claimed by the plaintiff. It should be stated specifically
in the plaint. The relief claimed by the plaintiff must be one which the court can grant.

Stages in a Civil case:

1. Institution of a Suit - every plaintiff should institute a law suit by presenting a plaint to the competent court.
The plaint is the pleading of the competent court. And If such plaint is mentions the cause of action, relief
claimed, and is sufficiently stamped, is not barred by time, the court admits the plaint and it is numbered and
registered as a suit.

2. Service of summons - summons is a written notice served on a person(defendants) by the court to appear
personally before the court.

3. Written statement - it is the reply statement of the defendant specifically denying the allegations made
against him by the plaintiff in his plaint. It is the pleading of the defendant. It clearly states which of the
allegations are admitted or denied.

4. Framing of issues and striking of issues - On the first day fixed in the summons for the appearance of the
plaintiff and the defendant, if both the parties are present, on hearing the pleadings pf both the parties,
answers to the interrogatories, the court frames issues which have to be determined for deciding the case.
- If neither party appears, the court may dismiss the suit.
- If the plaintiff appears and the defendant does not appear, the court may pass ex-parte for the plaintiff to
prove his case.
- But, when the defendant appears and the plaintiff does not appear, the court may dismiss the suit, unless the
defendant admits the claim.
- If both the parties are present, and after going through the plaint, written statement and continue the suit.

5. Production of Evidence and Arguments - after the evidence of both the parties are over, the arguments
advanced by both the sides have to be heard by the court.

6. Judgement - after the case has been heard, the court may pronounce the judgement at once or it may
reserve the judgement on any future date.

7. Decree - decree is an adjudication conclusively determining the rights of the parties with regard to the
matter. It is prepared in accordance with the judgement. The person in whose favour judgement and decree is
passed is know and ‘decree holder’ and the person against whom the judgement and decree is passed is called
‘judgement debtor’.

Notes prepared by Manna Simon Abraham, 5th semester B.com LL.b, CSI College for Legal Studies, Kanakkary, Kottayam 1
8. Execution - it is the final stage of a suit. It is the way in which a decree or order of the court is
implemented. The successful party can make an application in writing to the executing court specifying the
mode of execution and thereafter the execution proceedings are commenced for the fulfillment of the decree.

9. Appeal - the person who is aggrieved by the judgement and the decree can prefer an appeal to the appellate
court by presenting a memorandum of appeal against the judgement and the decree. Or,

10. File a revision petition in the High Court on the ground that the court which passed the judgement and
decree has no jurisdiction, Or

11. File a Review application in the court which has passed the judgement and decree on the ground that
there is an error on the face of record.

In Kehar Singh v. Custodian General, the court elaborated the concept of civil proceedings and said that
civil action maybe described as the proceeding between the parties for the implementation or redressal of
private rights.

CIVIL COURTS - HIERARCHY

Supreme Court

High Court

Dist. Court and Additional District Court

Subordinate Judge Class I

Subordinate Judge Class II

Court of small causes for Metropolitan Cities Munsiff’s court

JURISDICTION OF CIVIL COURTS

The term jurisdiction has not been defined in CPC. It means the power of the court to hear and determine a
case. It is the extent to which a court can exercise its authority over suits, appeals, etc.
In Hirday Nath v. Ram Chandra, the court defined jurisdiction as the power of the court to hear and
determine a case, to adjudicate and exercise any judicial power in relation to it.

Types of jurisdiction:
1. Territorial jurisdiction (16-20)
2. Pecuniary jurisdiction
3. Subject Matter Jurisdiction
4. Original Jurisdiction
5. appellate jurisdiction

1. Territorial jurisdiction - every court has it’s local limits. Beyond that limit, it cannot exercise it’s power.
This geographical limit is called territorial jurisdiction. This limit will be fixed by the government.
For example, if a cause of action (dispute) arises based on a property situated in Kottayam, only the
Kottayam civil court can exercise jurisdiction over it.

2. Pecuniary jurisdiction - Pecuniary means money. Some of the civil courts are authorised to entertain suits
or appeals upto a particular amount only. The High court and the district court has no limit on pecuniary
jurisdiction, it can take cases on any amount. Other courts have certain pecuniary limits, such as the
consumer forum of the District has pecuniary jurisdiction to try disputes upto 5lakhs.
Notes prepared by Manna Simon Abraham, 5th semester B.com LL.b, CSI College for Legal Studies, Kanakkary, Kottayam 2
3. Subject matter jurisdiction - it means that some courts are banned from hearing cases of a certain nature.
For example: the cases of succession, guardianship and matrimonial matters are to be tried by the District
court.

4. Original Jurisdiction - original jurisdiction refers to the court’s authority to take notice of cases that could
be decided in the First Instance itself, ie, Munsiff’s court and small causes court.

5. Appellate Jurisdiction - appellate jurisdiction is the court’s authority to review the cases that have been
already decided by the lower court. The supreme court, High Court and the District Court has both original
and appellate jurisdiction.

Jurisdiction of Civil courts

Section 9 of CPC
Section 9 of the Code of Civil procedure deals with the jurisdiction of civil courts in India. It declares that
the court shall have jurisdiction to try all lawsuits of civil nature, unless there is a specific legal provision that
expressly or impliedly bars them from doing so.

So, a Civil court has jurisdiction to decide a suit if two requirements are fulfilled:
i. The suit must be of a civil nature.
ii. The cognizance of such a suit should not have been expressly or impliedly barred.

Suits of Civil Nature -

‘Civil Suit’ has not been explained in any act. Any suit that is not criminal in nature can be termed as a suit
of a civil nature. Any suit that pertains to determination and implementation of civil rights may be defined as
a civil suit. Following are the suits of civil nature:
i. Suit for recovery of money
ii. Suit for recovery of possession of immovable property and mesne profits by the owner against the
trespasser.
iii. Suit for partition of family property.
iv. Suit for compensation for tort committed by the defendant.
v. Suit for dissolution of partnership by the partner.
vi. Suit for redemption of mortgage by the mortgagor.
vii. Suit for setting aside of gift deed by the donor on the ground of coercion or undue influence or fraud on
the part of the donee.
viii. Suit for specific performance of a contract.
ix. Suit for breach of contract.
x. Suit for recovery of movable property.

In District council of united Basel mission Church v. Salvador Nicholas, it was held that a dispute as to
right to worship is one of a civil nature and a civil suit can be filed.

In Kanji v. Bhika, a suit by a member of a caste for inspection of accounts and other documents relating to
the management of the caste property is a suit of civil nature.

‘A’ claimed that he should be carried in a “palanquin’ on a festive day through public street. The court held
that the court will not decide disputes related to purely religious functions. (Niranjan Jagadguru v.
Totaswami guru)

The plaintiff filed a suit for the right to receive prasadam first during a festival. It was held that the right
claimed was a mere dignity and was not a right of civil nature and hence suit was not maintainable.
(Shanmugham v. T.M Chidambarathanu Mudaliar)

In Achuthan Nair v. Narayanan Nair, it was held that a suit for demarcating the boundary of a property is
maintainable.
Notes prepared by Manna Simon Abraham, 5th semester B.com LL.b, CSI College for Legal Studies, Kanakkary, Kottayam 3
In Shakarappa v. Basamma, it was held that a suit was filed by a Hindu wife for an injunction restraining her
husband from solemnizing a second marriage while the first marriage was still subsisting is a suit of civil
nature and is maintainable.

In Varkey v. St. Mary’s Catholic Church, it was held that, the right of burial, if denied can be established in
a Civil Court by way of a civil suit.

State of Kerala v. Union of India, in this case, State of kerala filed a suit against the union of India before the
Sub Court, Mavelikkara for recovery of an amount of Rs.18,600 with interests and costs as damages for short
delivery of some articles by Railway. The sub Court rejected the plaint on the ground that under Article 131(a)
of the Constitution, only the Supreme Court has jurisdiction to try a suit between a State and Union of India.
The State of Kerala filed a revision petition before the Kerala High court. And the Kerala High Court held
that the rejection of the plaint by the sub court was illegal, because, Article 131(a) applies only to cases where
legal rights in the context of Constitution and federalism is involved. The controversy in the instant suit is
only contractual between a carrier and consignee to carry goods by railway and thus, this case is maintainable
by the lower court.

Suits expressly barred and Suits impliedly barred -

A suit is said to expressly barred when it is prohibited by the statute for the time being in force. A suit is
said to be impliedly barred when it is said to be excluded by general principles of law.
For example: if there is a specific statute or law that prohibits a court from hearing a particular type of suit
(because that suit might fall under the exclusive jurisdiction of another tribunal), then the jurisdiction of the
court is expressly barred. On the other hand, there is a legal principle or doctrine that suggests that a court
should not entertain a certain type of suit, even if there is no express provision, then the court’s jurisdiction is
impliedly barred.

For example: election disputes of the President or Vice-President are expressly barred by the Presidential and
Vice-Presidential election Act, 1952, the election disputes of Members of Parliament and State legislative
assemblies are expressly barred by the Representation of people Act, 1951.

RES JUDICATA
Or
ESTOPPEL BY RECORD
(Section 11)
Res means ‘subject matter’ and Judicata means ‘already decided’. Thus Res Judicata means a matter
already decided by the Court of Justice.
It means that if a disputed matter is heard and finally decided by a competent court, a subsequent suit on
the very same matter is barred. In the absence of such a rule, there will be no end to litigation and the parties
would be in constant trouble, harassment and expenses. Doctrine of Res Judicata is also known as Estoppel
by record.
Section 11 - No court shall try any suit in which directly or substantially, the matter is same, the parties are
same, title is same and heard and decided by a competent court. Provided that, there is no appeal or a decided
appeal.

Conditions :
1. There must be two suits (one previous and one subsequent)
2. The parties are same
3. The subject matter is the same
4. The title is same
5. The previous case must be heard and decided by a competent court.

Exceptions :
1. Judgement in original suit was obtained by fraud.
Notes prepared by Manna Simon Abraham, 5th semester B.com LL.b, CSI College for Legal Studies, Kanakkary, Kottayam 4
2. There are different issues in the second suit.
3. The court was not competent in the original suit
4. When there is a change in law

Maxims on which Res Judicata is based:

1. Nemo debit bis vexari pro una et eadem cause - no one should be vexed twice for the same cause.
2. Interest republicae ut sit finis litium - it is the interest of the state that there should be an end to litigation.
3. Res judicata pro veritate occipitur - every judicial decision must be accepted as correct.
4. Ex captio res judicata - one suit and one decision is enough for any single person.

Ilustration:
‘A’ sued ‘B’ for damages for breach of contract. The suit is dismissed. A subsequent suit by ‘A’ against ‘B’
for damages for breach of the same contract is barred.

In Sathyadhyan Ghosal v. Deorjn Debi, it was observed that the principle of Res judicata is based on the
need of giving a finality of decisions. It applies to past and future litigations. It applies to question of fact and
question of law.

In Daryo Singh v. state of U.P, it was held that res judicata applies to Writ petition also, except habeas
corpus.

In Susheela v. Kuttikrishnan, it was held that a decree passed on compromise is not a decision by the court
and therefore, the compromise decree des not operate as Res Judicata. So another suit can be filed on the
same case.

Scope of Res Judicata:

1. It applies to administrative law, constitutional law and criminal law.
2. This doctrine is based on public policy.
3. It is intended not only to prevent a new decision but also to prevent a new investigation so that the same
person cannot be harassed again in various suits upon the same question.

Difference between Res Judicata and Estoppel:

Sl.no Res Judicata Estoppel
1. It excludes a second suit. It shuts the mouth of the party.
2. It results from the court’s decision. It results from the act of the parties.
3. It is based on public policy It is based on the principle of equity.
4. It avoids multiplicity of cases It avoids multiplicity of representations.
5. It bids both the parties to a litigation It binds only the party who made the previous
statement.

Constructive Res Judicata:

Constructive Res Judicata is an artificial form of Res Judicata. This rule provides that if a party had
taken a plea in a proceeding between him and his opponent, he should not be permitted to take the same plea
against the same party against the same subject matter in a subsequent proceeding. For Res Judicata there
should be a previous decision, but for Constructive Res Judicata there should be a previous plea and it is
applicable even without a previous decision. It simply means that if a defence was not taken in the former suit
though it should have been taken in the former suit, the law presumes that such a matter was in issue and
already decided by the court. This is called Constructive Res Judicata.

In State of U.P v. Nawab Hussain, a Sub-Inspector of Police was dismissed from service by D.I.G. he
challenged the order of dismissal by filing a writ petition in the High Court on the ground that he was not
given a reasonable oppurtunity of being heard before passing the order. This petition was dismissed. He then
files another suit and raised an additional ground that since je was appointed by the I.G.P, the D.I.G has no
Notes prepared by Manna Simon Abraham, 5th semester B.com LL.b, CSI College for Legal Studies, Kanakkary, Kottayam 5
power to dismiss him. It was held that the second suit was barred by Constructive Res Judicata as the plea
was within the knowledge of the plaintiff and could have been taken in the earlier writ petition.

Illustration:
‘A’ brought a suit for certain properties in the possession of ‘B’ on the ground that he was the nearest heir of
‘C’, the last owner of the said properties. ‘B’ contested the suit on the ground that he was an adopted son of
‘C’. In that suit it was held that ‘B’ has failed to prove adoption. After this decision, ‘B’ instituted a suit
against ‘A’ alleging that even if there is no adoption, he was a nearest heir to ‘C’ therefore he is entitled to get
the properties left by ‘C’. in this case, the second suit by ‘B’ is barred by Constructive Res Judicata because
‘B’ has failed to bring the new claim in the former suit which he could have done. So the second suit is barred
by Constructive Res Judicata.

RES SUB JUDICE

Or
STAY OF SUIT
(Section 10)
The word Res means “a thing or matter”, the word sub Judice means “under consideration or pending”. So
Res Sub Judice means “pending suit before a court”. the doctrine of Res Sub Judice prevents the trial of a suit
which is already pending in a court of competent jurisdiction. So, when two or more cases are filed between
the same parties on the same subject matter, the competent court has the power to stay the proceedings.

Illustration:
‘A’ sues ‘B’ as to title of a land in a court of competent jurisdiction. During the pendency of the suit, if ‘A’
again sued ‘B’ on the same subject matter in another court, such court has no power to try the case except to
order to stay the proceedings.

Conditions:
1. Existence of two or more suits, one previously instituted and the other subsequently instituted.
2. Such previous suit is pending in a competent court.
3. The following factors are common in these two suits either directly or substantially -
i. The matter is the same,
ii. Parties are same,
iii. Title is the same
4. The subsequent court can be -
i. The same court where the previous suit is instituted, or
ii. Any other court in India, or
iii. Any other court outside India but established by the Central government, or
iv. Supreme court.
5. It must be remembered that this doctrine does not bar the institution of a suit but only bars the trial. The
subsequent suit cannot be dismissed by the court. It can only be stayed.

Scope and objective:

1. The purpose of this rule is to prevent multiplicity of cases in courts.
2. It also prevents from getting two contradictory judgments.
3. It also ensures to protect the litigant from unnecessary harassment.

In Annamalay Chetty v. B.A Thornlill, the court observed that the object of the section is to protect a person
from multiplicity of proceedings and to avoid a conflict of decisions.

In State of Rajasthan v. Kalyan Sundaram, the Supreme court held that a civil suit can be simultaneously
instituted during the pendency of the criminal proceedings initiated under section 138 of the Negotiable
Instruments Act.

Notes prepared by Manna Simon Abraham, 5th semester B.com LL.b, CSI College for Legal Studies, Kanakkary, Kottayam 6
PARTIES TO THE SUIT
And
JOINDER OF PARTIES
Every suit must have two parties, ie, Plaintiff and Defendant. Plaintiff is the person who brings an action
for his rights and defendant is the person against whom the rights are claimed.
Sometimes, a situation may arise that, upon institution of a suit, it may be realised that in addition to the
existing parties in the suit, there maybe persons whose presence is material to effectively determine the
questions arising in the case. In such situations the Joinder of Parties is used, either by the application by an
existing party to the suit or suo moto by the court.

Joinder of plaintiff (Order 1, Rule 1) -

When the interest of two or more plaintiffs are identical, they can sue together if the following conditions
are satisfied:
1. The relief claimed by all the plaintiffs should arise from the same transaction.
2. The nature of the case should be such that if separate suits are filed, identical questions of law or facts
would arise in all the suits. Hence its necessary to join the parties in one suit.

Illustration:
1. ‘A’ enters into an agreement jointly with B and C to sell 100 tins of oil. ‘A’ afterwards refuses to deliver.
Here, ‘B’ and ‘C’ may file a suit jointly as plaintiffs against ‘A’ for damages.
2. ‘A’ agreed to sell and deliver 100 tins of oil to B. He also agreed to sell and deliver 100 tins of oil to C
on the same day and price. Here B and C cannot join as plaintiffs in one suit against A as the transactions
are different.

Joinder of Defendants (Order 1, Rule 3) -

The Plaintiff can add two or more persons as defendants in a suit if the following conditions are satisfied:
1. The relief claimed by all the plaintiffs should arise from the same transaction.
2. The nature of the case should be such that if separate suits are filed, identical questions of law or facts
would arise in all the suits. Hence its necessary to join the parties in one suit.

Illustrations:
There is a collision between a bus and a car. ‘A’ a passer-by was injured as a result of that collision. He can
file a suit against both the owner of the bus and owner of the car for damages in a single suit as defendants.

Necessary party and Proper Party -

A necessary party is one without whom no effective order can be passed in the suit. There presence in the
court is necessary for the determination of all the issues involved in the suit.
A proper party is one in whose absence an order can be made but whose presence is necessary for a
complete and final decision. Their presence in the court is not essential, yet, it maybe proper that they also be
present before the court for the proper settlement of the case.
If a necessary party is absent, the suit can be dismissed. But, if the proper party is absent, the suit cannot be
dismissed.
For example: all the members entitled to get a share are necessary parties. Whereas, a sub-tenant is only a
proper party in a suit for possession of land by landlord against the tenant.

Non-joinder and Mis-joinder of parties (Order 1, rule 9) -

Where a person, who is a necessary or proper party to a suit has not been joined as a party to the suit, it is a
case of non-joinder. On the other hand, If two or more persons are joined as plaintiffs or defendants in one
suit and they are neither necessary nor proper parties, it is a case of mis-joinder of parties.

Objections as to Non-joinder or Mis-joinder:

All objections on the ground of non-joinder or mis-joinder of parties shall be taken at the earliest possible
opportunity and any such objection not so taken shall be deemed to have been waived.

Notes prepared by Manna Simon Abraham, 5th semester B.com LL.b, CSI College for Legal Studies, Kanakkary, Kottayam 7
Effect of Non-joinder or Mis-joinder of Parties
In the case of non-joinder of 'necessary parties' the court cannot pass an effective decree in their absence. In
such a case the suit cannot proceed and is liable to be dismissed. But in the case of non-joinder of 'proper
parties' the cannot be dismissed. The court can add the absent party or try the suit without him.
The court may order to add any person as plaintiff or defendant if his presence is necessary in order to
enable the court to effectually and completely adjudicate all the questions involved in the suit. If a defendant
is added, the plaint shall be amended and the amended copies' of the plaint shall be served on the new
defendant and on the original defendant. If the plaintiff fails to comply with the order, the suit, is liable to be
dismissed.

In Amit Kumar Shaw. v. Farida Khatoon, the Supreme Court held that the power to strike out or add parties
can be exercised by the Court at any stage of the proceedings

Where necessary party refuses to join as Plaintiff:

If any person who ought to have been joined as a plaintiff does not consent to join as plaintiff, he may be
made a defendant in the suit.

Mis-joinder of Causes of action:

If a plaintiff unite in the same suit several causes of action against the same defendants, there is joinder of
causes of action. However, in a suit for recovery of immovable property, no causes of action shall be joined
except the following without permission of the court:
- claims for mesne profits or arrears of rent in respect of the property claimed.
- claims for damages for breach of any contract under which the property is held.
Thus, in a suit for recovery of immovable property, the plaintiff cannot unite the claim for compensation for
defamation. If the plaintiff units different causes of action in the suit, the defendant can raise objection
against the mis-joinder.

Multifariousness:
Mis-joinder of parties and mis-joinder of causes of action in a suit is technically called as multifariousness.
So, the objection on the ground of multifariousness should be taken at the earliest opportunity and any
objection not so made shall be deemed as waived.

LEGAL REPRESENTATIVES
(Section 2(11))
Legal Representative is a person in law who represents the estate of the deceased and includes:
i. Any person who inter-meddles with the estate of the deceased and
ii. If a part sues or is sued in representative character, the person on whom the estate devolves on the death
of the party so suing or sued is a legal representative.

In simple terms it means,

A person who stands in place of and represents the interests of the deceased,
A person who supervises the legal affairs of another,
He can also act as the Executor or Administrator of estate, or court appointed guardian of a minor or
incompetent person is a legal representative.

In Custodian of Branches of BANCO National v. Nalini, the court expanded the scope of the term legal
representatives, ie, it is not limited to legal heirs only, it can be any person competent to inherit the deceased
person’s property.
In Mercy v. Aisha Ummal, it was held that legal heirs may be legal reprsenattives, but not always. Legal heirs
are entitled to inherit the estate of the deceased. Legal representatives on the other hand are person who is law
represent the estate of the deceased person.

Notes prepared by Manna Simon Abraham, 5th semester B.com LL.b, CSI College for Legal Studies, Kanakkary, Kottayam 8
REPRESENTATIVE SUITS
(Sec 146, Rules 8 and 8A, Order 1)
When there are a number of persons interested in a suit, one or more of them can, with the permission of
the court, sue or be sued on behalf of themselves and others. This is called Reprsentative suits.

Essentials:
The parties must be numerous,
They must have the same interest in the suit,
Permission of the court must be obtained,
Notice to the parties represented is mandatory - it is the duty of the court to take care that proper notice is
issued which would provide sufficient information to the person interested in the suit so that they can apply to
become parties to the suit. It is also the duty of the court to see that the notice is published in a newspaper
which the interested persons are likely to read.

Objectives:
Saves the trouble and expenses, hence it is more convenient,
Saves time, as there is only a single trial instead of multiple trials,
The decree will be binding on all of them equally

In Chairman, T.N.H.B, Madras v. T.N Ganapathy, a member of the Jain community filed a suit in the
representative capacity for the declaration that Amul cheese is not purely a vegetable product and he along
with other jains were deceived by the misrepresentation made by the defendants who were advertising the
cheese as ‘Amul cheese Tops Vegetables’. It was held that the court was entitled to grant permission to file a
representative suit as the controversy involved was a common interest to the community represented.

Notes prepared by Manna Simon Abraham, 5th semester B.com LL.b, CSI College for Legal Studies, Kanakkary, Kottayam 9