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CPC
VBCL UDUPI
PRAVEENA BABU C, B. Com, MBA, LL. B
VIDYA VINOD, BSc, LL. B
VIJAY L, BE, LL. B
80-20 MARKS PATTERN
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UNIT 1

10 MARKS

1. Explain Doctrine of 'Res-judicata'. State the conditions for applicability of the doctrine of
Res-judicata. (2)
2. Discuss the provisions of C.P.C. in respect of place of suing. (2)
3. Explain Kinds of Jurisdiction
4. What is suit? Describe different stages of suit. (2)
5. Explain the conditions for applicability of doctrine of "res – subjudice".
6. Briefly explain the different parts of plaint.
7. Discuss the rules in C-P-C relating to transfer of suits (2)

6 MARKS

1. Foreign judgement
2. Suit of civil nature
3. Jurisdiction as Subject matter.
4. Write a note on Decree.
5. Doctrine of Res Subjudice (2)
6. Suit of Civil Nature.
7. Res judicata
8. 'A' residing in Delhi, beats 'B' in Calcutta. 'B' wants to file a suit against 'A'. Where he can
sue ? Advise him.
9. Sri Ramesh has instituted a suit against his wife Aruna In the civil court at Dharawad.
Aruna is residing at Kalaburagi with her parents. She has no income of her own and hence,
she is finding it difficult to travel to Dharawad frequently to attend the proceedings. Advise
her.
10. 'A' residing in Delhi publishes in Calcutta statements of defamation to 'B'. The newspaper
is circulated in Bombay, Madras and Raipur. 'B' wants to file a suit against 'A'. Where he
can sue ? Advise him.
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10 MARKS

1. Explain Doctrine of 'Res-judicata'. State the conditions for applicability

of the doctrine of Res-judicata. (2)

Introduction

The rule of res judicata has a very ancient history. It was known to ancient Hindu Law as ‘Purva
Nyaya’ (former judgment). Under the Roman Law, it was recognised that "one suit and one
decision was enough for any single dispute". The doctrine was accepted in the European continent
and in the Commonwealth countries. Section 11 of the Code of Civil Procedure embodies the
doctrine of res judicata.

Meaning

The doctrine of Res judicata means Prohibition on Relitigation of already adjudicated or decided
matter.

Object or purpose

1. No person should be punished twice for same cause

2. It is in the interest of the state that there should be an end to a litigation
3. A judicial decision must be accepted as correct

Essential conditions for applicability of doctrine of Res judicata

1. Matter in issue

The issues in both suits must be similar. The "matter in issue" may be an issue of fact, an issue of
law, or one of mixed law and fact.

2. Same Parties

The second condition of res judicata is that the former suit must have been a suit between the same
parties. when the parties in the subsequent suit are different from the former suit, there is no res
judicata.
3. Same Title
The third condition of res judicata is that the parties to the subsequent suit must have litigated
under the same title in the former suit.
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4. Competent Court

The fourth condition of res judicata is that the court which decided the former suit must have been
a court competent to try the subsequent suit.

5. Heard and finally decided

The fifth and the final condition of res judicata is that the matter directly and substantially in issue
in the subsequent suit must have been heard and finally decided by a court in the former suit.

Cases

Duchess of Kingstone case,

Sir William de Grey made following observations:

firstly, that judgment of a court of concurrent jurisdiction is, as a plea, a bar, or as evidence
conclusive, between the same parties, upon the same matter.
secondly, that the judgment of a court of exclusive jurisdiction is conclusive upon the same matter.

Narayanan Chettiar v. Annamalai Chettiar

It is well established that the doctrine of res judicata codified in section of cpc is not exhaustive
(exhaustive means detailed and complete).

Lal Chand v. Radha Krishan

The principle of res judicata is conceived in the larger public interest which requires that all
litigation must, sooner than later, come to an end.

State of U.P. v. Nawab Hussain

a sub-inspector of police, was dismissed from service by the 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 opportunity
of being heard. The contention was negatived and the petition was dismissed. He then filed a suit
and raised an additional ground that since he was appointed by the I.G.P, the D.I.G. had no power
to dismiss him. The State contended that the suit was barred by constructive res judicata. The trial
court, the first appellate court and the High Court held that the suit was not barred by res judicata.
Allowing the appeal filed by the State, the Supreme Court held that the suit was barred by res
judicata.
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Conclusion

The Doctrine of Res Judicata can be understood as something which restricts either party to “move
the clock back” during the pendency of the proceedings. The extent of res judicata is wide and it
includes a lot of things which even include Public Interest Litigations. This doctrine can be applied
outside the Code of Civil Procedure and covers a lot of areas which are related to the society and
people. The scope and the extent have widened with the passage of time and the Supreme Court
has elongated the areas with its judgments.
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2. Discuss the provisions of C.P.C. in respect of place of suing. (2)

Introduction

Sec 15 to 21 deals with the place of suing. Suits are of 4 categories:

1. Suits in respect of immovable properties
2. Suits for movable properties
3. Suits for compensation for wrong
4. Other suits

Meaning

The term place of suing, simply refers to the location of the trial.

Sec 15: Court in which suits to be instituted

Every suit shall be instituted in the court of the lowest grade competent to try it.

Sec 16: Suits to be instituted where subject matter situate

Following suits shall be instituted in the court within the local limits of whose jurisdiction the
property is situate:

(a) for the recovery of immovable property with or without rent or profits,

(b) for the partition of immovable property,

(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable
property,

(d) for the determination of any other right to or interest in immovable property,

(e) for compensation for wrong to immovable property,

(f) for the recovery of movable property actually under distraint or attachment,
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Sec 17: Suits for immovable property situate within jurisdiction of different courts

the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of
the property is situate but the court shall have pecuniary jurisdiction.

Sec 18: Place of institution of suit where local limits of jurisdiction of courts are uncertain

I there exist an uncertainty regarding the jurisdiction between two or more courts, then any of those
Courts may record a statement relating to this uncertainty and proceed with the suit. The decree
passed by this court shall have the same effect as is the property was situated within its jurisdiction.

Sec 19: Suits for compensation for wrongs to person or movables

Where a suit is for compensation for wrong done to the person or to movable property, if the wrong
was done within the local limits of the jurisdiction of one Court and the defendant resides, or
carries on business, or personally works for gain, within the local limits of the jurisdiction of
another court, the suit may be instituted at the option of the plaintiff in either of the said courts.
Illustration: A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A
either in Calcutta or in Delhi.

Sec 20: Other suits to be instituted where defendants reside or cause of action arises

Every suit shall be instituted in a Court within the local limits of whose jurisdiction-

(a) The defendant actually and voluntarily resides, or carries on business, or personally works for
gain; or

(b) any of the defendants, where there are more than one, actually and voluntarily resides, or carries
on business, or personally works for gain,or

(c) the cause of action, wholly or in part, arises.

Sec 21: Objections to jurisdiction

(1) No objection as to the place of suing shall be allowed by any Appellate or Revisional Court
unless such objection was taken in the Court of first instance at the earliest possible
opportunity.
(2) No objection as to the competence of a Court with reference to the pecuniary limits of its
jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection
was taken in the court of first instance at the earliest possible opportunity
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(3) No objection as to the competence of the executing court with reference to the local limits
of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such
objection was taken in the executing court at the earliest possible opportunity

Illustration :
‘A’ is a business man in Calcutta. ‘B’ carries on business in Delhi. ‘B’ by his agent in Calcutta
buys goods of ‘A’ and request to deliver them to the east Indian Railway co. ‘A’ delivers the goods
accordingly in Calcutta. ‘B’ is not ready to pay the money. Suit may be filed either in Delhi or
Calcutta.

Conclusion

The concept of the place of suing is very important as it helps to determine the jurisdiction of each
court. It helps to the plaintiff where to file a suit. It saves the time of the court in determining the
jurisdiction of the court.
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3. Explain Kinds of Jurisdiction

Introduction

In every state, besides the High Court there are number of judicial Courts to administer justice
which functions under the supervision and complete control of the High courts. There are two type
of law courts in every district, one is the Civil Court and the other is the Criminal Court.

Meaning

The term "jurisdiction" has not been defined in the Code. The word (jurisdiction) is derived from
Latin terms "juris" and "dicto" which means "I speak by the law.” "jurisdiction" means the power
or authority of a court of law to hear and determine a cause or a matter. It is the power to entertain,
deal with and decide a suit, an action, petition or other proceeding.

Sec 9: Courts to try all civil suits unless barred

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a
civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Kinds of Jurisdiction

1. Civil and criminal jurisdiction

2. Territorial or local jurisdiction
3. Pecuniary jurisdiction
4. Jurisdiction as to subject-matter
5. Original and appellate jurisdiction
6. Exclusive and concurrent jurisdiction
7. General and special jurisdiction
8. Legal and equitable jurisdiction
9. Municipal and foreign jurisdiction
10. Expounding and expanding jurisdiction

1. Civil and criminal jurisdiction

Civil jurisdiction is that which concerns and deals with disputes of a "civil nature". Criminal
jurisdiction, on the other hand, relates to crimes and punishes offenders.
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2. Territorial or local jurisdiction

Every court has its own local or territorial limits beyond which it can- not exercise its jurisdiction.
These limits are fixed by the Government. The District Judge has to exercise jurisdiction within
his district and not outside it. The High Court has jurisdiction over the territory of a State within
which it is situate and not beyond it.

3. Pecuniary jurisdiction

a court will have jurisdiction only over those suits the amount or value of the subject-matter of
which does not exceed the pecuniary limits of its jurisdiction." Some courts have unlimited
pecuniary jurisdiction, e.g. High Courts and District Courts have no pecuniary limitations.

4. Jurisdiction as to subject-matter

The law empowers different courts to try different types of suits and legal proceedings. Likewise,
some courts are barred from trying certain types of suits. Thus, a Small Causes Court has no
jurisdiction to try suits involving, inter alia, specific performance of a contract or a partition of
immovable property. Likewise, only the Supreme Court and the High Courts are empowered to
hear writ petitions.

5. Original and appellate jurisdiction

Original jurisdiction is jurisdiction inherent in, or conferred upon, a court of first instance. In the
exercise of that jurisdiction, a court of first instance decides suits, petitions or applications.
Appellate juris- diction is the power or authority conferred upon a superior court to re- hear by
way of appeal, revision, etc., of causes which have been tried and decided by courts of original
jurisdiction.

Munsiffs Courts, Courts of Civil Judges, Small Cause Courts are having original jurisdiction only,
while District Courts, High Courts have original as well as appellate jurisdiction.

6. Exclusive and concurrent jurisdiction

Exclusive jurisdiction is that which confers sole power on one court or tribunal to try, deal with
and decide a case. No other court or authority can render a judgment or give a decision in the case
or class of cases.
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Concurrent or co-ordinate jurisdiction is jurisdiction which may be exercised by different courts

or authorities between the same parties, at the same time and over the same subject-matter. It is,
therefore, open to a litigant to invoke jurisdiction of any of such court or authority.

7. General and special jurisdiction

General jurisdiction extends to all cases comprised within a class or classes of causes. Special or
limited jurisdiction, on the other hand, is jurisdiction which is confined to special, particular or
limited causes.

8. Legal and equitable jurisdiction

Legal jurisdiction is a jurisdiction exercised by Common Law Courts in England, while equitable
jurisdiction is a jurisdiction exercised by Equity Courts. Courts in India are courts of both, law and
equity.

9. Municipal and foreign jurisdiction

Municipal or domestic jurisdiction is a jurisdiction exercised by municipal courts, i.e., courts in a

country. Foreign jurisdiction means jurisdiction exercised by a court in a foreign country. A
judgment rendered or decision given by a foreign court is a "foreign judgment".

10. Expounding and expanding jurisdiction

Expounding jurisdiction means to define, clarify and explain jurisdic- tion. Expanding jurisdiction
means to expand, enlarge or extend the jurisdiction. It is the duty of the court to expound its
jurisdiction. It is, however, not proper for the court to expand its jurisdiction.

Conclusion

Civil court has jurisdiction to investigate whether tribunal and quasi-judicial bodies or legal
executive acted within their jurisdiction. It can be presumed that section 9 essentially deals with
the issue of the civil court’s jurisdiction to consider a matter. Civil court has jurisdiction to consider
a suit of civil nature except when it’s notification is expressly barred or bared by significant
suggestion. Civil court has jurisdiction to resolve the problem of its jurisdiction.
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4. What is suit? Describe different stages of suit. (2)

Introduction
For a Civil Suit, there are two criterions- the cause of action and the claim for
damages/compensation. The Civil Suit must also fulfil all the conditions laid down in Section 9 of
the Code of Civil Procedure, 1908. In India, a civil case in initiated when an individual (also known
as the plaintiff) claims to have suffered due to the action of another individual (also known as the
defendant) thereafter filing a complaint.

Meaning
The expression “suit” has not been defined in the Code, but it is a proceeding
which is commenced by presentation of plaint.

Pandurang Ramchandra v Shantibai Ramchandra

The Supreme Court has stated, “In its comprehensive sense the word “suit” is understood to apply
to any proceeding in a court of justice by which an individual pursues that remedy which the law
afford. the modes of proceedings may be various but that is a right is litigated between the parties
in a court of justice the proceeding by which the decision of the court is sought maybe a suit.

Section 11: Proceedings in a court of first instance as distinguished form proceedings in an palliate
court, thought the general principles of res judicator apply to appellate proceedings also.

Stages of a suit

1. Presentation of the plaint Order 7 of CPC 1908:

Presentation of the plaint in the court is the first step or starting point of all the pleading in a
case in India. The whole judicial system under the civil law set in motion by the filling the
plaint.

2. Service of Summons on defendant (Order 5):

The second stage of the civil suit is the service of summons on the defendant. Summons is an
instrument used by the court to call the person whose name is mentioned in the plaint as a
defendant. It is a way to inform the person against whose the civil proceedings have been
commenced and he is required to present his defence in the court. It is a process directed to a proper
officer of the court to notify the person named, that he is required to appear, on a day
named and answer the claim in such action.

3. Appearance of parties:
When the summons duly served to the defendant, the next stage of the civil suit commenced which
is the appearance of the parties before the court on the day fixed. If the defendant does not appear
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on the day fixed in the summons the court may proceed ex parte. In the case of the plaintiff, if he
is absent court may dismiss the suit. Where neither parties appear the court may dismiss the suit.

4. Ex-Party Decree (Order 9):

As mentioned above if the defendant, on a fixed day in the summons does not appear the
court may proceed ex-parte. Where the plaintiff appears and the defendant does not appear
when a suit is called up for hearing and summons is duly served the court may make an order that
suits will be heard ex-parte under Order 9 of the CPC 1908.

5. Filing of written statement of the defendant (Order 8):

First of all, we should know that what is written statement. Actually, it is a pleading of the
defendant in the answer to the plaint filed by the plaintiff against him. It is a reply statement of the
defendant in a suit specifically denying the allegations made against him by the plaintiff in his
plaint. The provision regarding the written statement has provided under Order 8 of the Code of
Civil Procedure, 1908.

6. Production of Documents by parties (Plaintiff and Defendant)

After filling the written statement by the defendant the next stage of the suit is the production of
documents by the parties. At this stage, both parties have to file documents in court which are in
their possession or power. In such a situation, where parties rely on such a document that is not in
their possession then parties have to apply to the court for issue of summons to authority or persons
in whose possession these documents are. In such a case, parties have to deposit in the court cost
of such production of the documents.

7. Examination of Parties:
After the filling of the written statement, production of the documents and appearance of the
parties, the important stage commences that is Examination of the parties. At the first hearing of
the suit, the court ascertains from each party or his pleader whether he admits or denies such
allegations of fact as made in the plaint and written statement. Such admissions and denies shall
be recorded.

8. Framing of issues by the Court (Order 14):

The next of the civil suit is the framing of issues. It is the duty of the court to framing issues.
Order 14 of CPC provides the provision regarding the framing issues.

9. Summoning of Attendance by the Court (Order 14):

After the framing of issues parties shall present in the court a list of witnesses whom they
propose to call either to give evidence or to produce documents. Such a list shall be present in the
court on the day appointed and not later than 15 days after the date on which issues are
settled.
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10. Hearing of suits and examination of witnesses:

After the summoning of the witnesses, the next stage of the civil suit is hearing of suits and
examination of witnesses commence. First right to begin is of plaintiff unless the defendant
admits the facts alleged by the plaintiff and contend that either in point of law or on some
additional facts alleged by the defendant the plaintiff is not entitled to any part of the relief, in
such a case the defendant has the right to begin.
The plaintiff has to submit the evidence that was earlier marked if any evidence was not
marked earlier then it will not be considered by the court. And the defendant’s advocate will
cross-examine the plaintiff and also to the witnesses who are from the plaintiff’s side.
And the defendant also presents his side of the story supported by his witnesses and
evidence from his side and the plaintiff advocate also cross-examined the defendant.

11. Argument:
As soon as the stage of the hearing of suits and examination of witnesses is over then the suit is
kept for the next stage i.e. argument. Once the evidence has been submitted and cross-examination
is conducted by both parties, then both sides are allowed to present a summary of the case and
evidence to the judge in the final session.

12. Judgement:

The next stage of the civil suit is judgment, which means the statement given by
the judge on the ground of which a decree is passed.

13. Preparation of Decree:

After the delivery of the judgment, the next stage is the preparation of Decree, and it is to be
prepared by the concerned clerk.

14. Execution of Decree:

In this stage, decree-holder compels the judgment-debtor to out the mandate of the decree or decree
or order as the case may be. It is the process by which a decree-holder recovers the fruits of the
judgment. The execution is complete when judgment creditor or decree-holder gets money or other
thing awarded to him by judgment, decree or order.

Conclusion
Unlike the criminal cases which aims at serving punishments, a civil suit pursues compensation.
It should also be kept in mind that prior to the final arguments, the parties have a chance to make
changes to their pleading.
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5. Explain the conditions for applicability of doctrine of "res – subjudice".

Introduction
The doctrine of “Res Sub Judice” emerges as a guiding principle to maintain the integrity of
judicial proceedings. Often referred to as the legal concept of “a matter under judgment,” Res Sub
Judice plays a pivotal role in preventing the duplication of legal processes and contradictory
outcomes. Section 10 of the Code of Civil Procedure, 1908 (CPC) deals with the concept of Res
sub judice.

Meaning
Res Sub judice is a Latin maxim which means under judgement.
It implies that where the same subject matter is pending in a Court of law for adjudication between
the same parties, the other court is barred to entertain it.

Object of Section 10 of CPC

The object of Section 10 of CPC is to prevent the courts of concurrent jurisdiction from
simultaneously entertaining and adjudicating upon two parallel litigations in respect of the same
cause of action, the same subject matter and the same relief.
It also aims to avoid frivolous litigation and thus save the judicial system from the wastage of time
and money of the State and of the litigant.

Conditions for applicability

For the application of this section, the following conditions must be satisfied:

(i) There must be two suits, one previously instituted and the other subsequently instituted.

(ii) The matter in issue in the subsequent suit must be directly and substantially in issue in the
previous suit.

(iii) Both the suits must be between the same parties or their representatives.

(iv) The previously instituted suit must be pending in the same court in which the subsequent suit
is brought or in any other court in India or in any court beyond the limits of India estab- lished or
continued by the Central Government or before the Supreme Court.

(v) The court in which the previous suit is instituted must have jurisdiction to grant the relief
claimed in the subsequent suit.

(vi) Such parties must be litigating under the same title in both the suits.
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Inherent Power to Stay

● The provisions contained in Section 10 are mandatory and no discretion is left with the
court.
● The order to stay proceedings in the subsequent suit can be made at any stage.
● When there is a case for the application of Section 10 of CPC, recourse to the inherent
powers under Section 151 of CPC is not justified.

Effect of Contravention
● A decree passed in contravention of Section 10 of CPC is not a nullity and therefore cannot
be disregarded in execution proceedings.
● This Section lays down a rule of procedure, pure and simple, which can be waived by a
party.
● Mere filing of an application under Section 10 does not in any manner put an embargo on
the power of the court to examine the merits of the matter.

Balkishan v. Kishan Lal

The policy of law is to confine a plaintiff to one litigation, thus obviating the possibility of two
contradictory verdicts by one and the same court in respect of the same relief.

Manohar Lal v. Seth Hiralal

As soon as the above conditions are satisfied, a court cannot proceed with the subsequently
instituted suit since the provisions contained in Section 10 are mandatory, and no discretion is left
with the court.

Life Pharmaceuticals (P) Ltd. v. Bengal Medical Hall

The order staying proceedings in the subsequent suit can be made at any stage."

Pukhraj D. Jain v. G. Gopalakrishna

Section 10, however, does not take away power of the court to ex- amine the merits of the matter.
If the court is satisfied that subsequent suit can be decided purely on legal point, it is open to the
court to decide such suit.

Conclusion
Res sub judice as a doctrine has the main purpose of reducing the burden of courts from abundance
cases. In other way it also reduces the burden of parties to adduce oral or written evidence twice
in different courts. It also avoids conflicting decisions and makes sure to minimise the waste of
resources of courts. The court can exercise this power and put a stay on the subsequent suit. The
people who try to misuse their right in order to get double benefits are looked after through this
principle.
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6. Briefly explain the different parts of plaint.

Introduction

plaint in CPC is a formal written document submitted by a plaintiff to initiate a civil lawsuit in a
court of law. It serves as the initial step in commencing a legal action. It helps define the scope
and purpose of the lawsuit and provides the court with the necessary information to proceed with
the case.

Definition

A "Plaint" is a statement of claim, a document, or a memorial by the presentation of which a suit

is instituted. It contains the grounds on which the assistance of a court is sought by a plaintiff. It is
a pleading of the plaintiff.

Order 7 Rule 1: Particulars to be contained in plaint

The plaint shall contain the following particulars:-

(a) the name of the court in which the suit is brought;

(b) the name, description and place of residence of the plaintiff;

(c) the name, description and place of residence of the defendant, so far as they can be ascertained;

(d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that
effect;

(e) the facts constituting the cause of action and when it arose;

(f) the facts showing that the court has jurisdiction;

(g) the relief which the plaintiff claims;

(h) where the plaintiff has allowed a set off or relinquished a portion of his claim the amount so
allowed or relinquished; and

(i) a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of
court fees, so far as the case admits.
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Order 7 Rules 2 - 8

1. The reliefs claimed by the plaintiff, simply or in the alternative

2. Where the plaintiff files a suit in a representative capacity, the facts showing that the
plaintiff has an actual existing interest in the subject-matter and that he has taken steps that
may be necessary to enable him to file such a suit;
3. Where the plaintiff has allowed a set-off or relinquished a por- tion of his claim, the amount
so allowed or relinquished,
4. Where the suit is for recovery of money, the precise amount claimed;
5. Where the suit is for accounts or mesne profits or for movables in the possession of the
defendant or for debts which cannot be determined, the approximate amount or value
thereof,
6. Where the subject-matter of the suit is immovable property a description of the property
sufficient to identify it, e.g. bound- aries, survey numbers, etc.;
7. The interest and liability of the defendant in the subject-mat- ter of the suit,
8. Where the suit is time-barred, the ground upon which the exemption from the law of
limitation is claimed.”

Important aspects of a plaint

(i) Parties to suit

There must be two parties in every suit, namely, the plaintiff and the defendant. There may,
however, be more than one plaintiff or more than one defendant. But there must be at least one
plaintiff and one defendant in every suit. All particulars, such as name, father's name, age, place
of residence, etc., which are necessary to identify the parties, must be stated in the plaint.

(ii) Cause of action

Every suit presupposes the existence of a cause of action against the defendant because if there is
no cause of action, the plaint will have to be rejected.

"Cause of action” means a bundle of essential facts, which it is necessary for the plaintiff to prove
before he can succeed", or "which gives the plaintiff right to relief against the defendant". Thus,
"cause of action" means every fact, which it is necessary to establish to support a right or obtain a
judgment.
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(iii) Jurisdiction of court

The plaint must state all the facts showing how the court has pecuniary and territorial jurisdiction
over the subject-matter of the suit. When the jurisdiction of a court to entertain the suit is disputed
by the defendant, the court may frame the issue to that effect and decide the same before deciding
other issues,

(iv) Valuation

The plaintiff must state in the plaint the valuation of the subject-matter of the suit for the purposes
of pecuniary jurisdiction of the court and court fees.

(v) Limitation: Rule 6

Rule 6 provides that where the suit is barred by limitation, it is necessary for the plaintiff to show
the ground of exemption in the plaint.

(vi) Relief: Rules 7-8

Every plaint must state specifically the relief claimed by the plaintiff either simply or in the
alternative. Where the relief is founded on separate and distinct grounds, they should be so stated.
Where the plaintiff is entitled to more than one relief in respect of the same cause of action, it is
open to him to claim all or any of such reliefs. But if he omits, except with the leave of the court,
to sue for any particular relief, he will not afterwards be allowed to sue for the relief so omitted.

Conclusion

The plaint is a concept that emerged in the field of law for the better knowledge of the point of
conflict and facts so that effective and well-informed decisions can be delivered. The concept of
plaint is required in the commercial and civil matters which are dealt with by the commercial and
civil courts. But the plaint has increased the complexity of the process and may make it tough to
file the suit for legal remedy by the common people.
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7. Discuss the rules in C-P-C relating to transfer of suits (2)

Introduction

In each civil dispute, the offended party has the privilege to choose the forum where he/she wishes
to establish the suit given it has the jurisdiction to try the suit. Sections 22 and 23 deal with the
rights of the defendant to apply for the transfer of a suit, while Sections 24 and 25 authorize certain
courts to transfer the suit.

Meaning

“Jurisdiction" means the power or authority of a court of law to hear and determine a cause or a
matter. It is the power to entertain, deal with and decide a suit, an action, petition or other
proceeding.

Transfer of suit

The court must maintain impartiality when dealing with parties involved in a dispute. Therefore,
when a plaintiff initiates a lawsuit in their preferred location, as outlined in the "Code of Civil
Procedure 1908"1, the defendant is required to appear before the court and submit a written
statement, presenting objections to the plaintiff's suit. If the defendant raises concerns related to
the court's jurisdiction based on provisions within the Code of Civil Procedure, the court must
initially address the jurisdictional issue. If the court determines that it lacks jurisdiction, it is
obligated to transfer the lawsuit, following the guidelines. Nevertheless, if either party encounters
difficulties at any point during the legal proceedings and wishes to relocate the case to a different
place or court of their choice, they have the remedy to file a transfer petition in the relevant court
in accordance with such applicable law.

Sec 22: Power to transfer suits which may be instituted in more than one court

Where a suit may be instituted in any one of two or more courts and is instituted in one of such
courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and
in all cases where issues are settled at or before such settlement, apply to have the suit transferred
to another court, and the court to whis such application is made, after considering the objections
of the other parties (if any) shall determine in which of the several courts having jurisdiction the
suit shall proceed.
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Sec 23: To what court application lies

(1) Where the several courts having jurisdiction are subordinate to the same Appellate Court, an
application under section 22 shall be made to the Appellate Court

(2) Where such courts are subordinate to different Appellate Courts but to th same High Court, the
application shall be made to said High Court.

(3) Where such courts are subordinate to different High Courts, the application shall be made to
the High Court within the local limits of whose jurisdiction the court in which the suit is brought
is situate.

Sec 24: General power of transfer and withdrawal

(1) On the application of any of the parties and after notice to the parties and after hearing such of
them as desired to be heard, or of its own motion, without such notice, the High Court or the
District Court may, at any stage

(a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any court
subordinate to it and competent to try or dispose of the same; or

(b) withdraw any suit, appeal or other proceeding pending in any court subordinate to it; and

(i) try or dispose of the same; or

(ii) transfer the same for trial or disposal to any court subordinate to it and competent to try or
dispose of the same; or

(iii) re-transfer the same for trial or disposal to the court from which it was withdrawn.

(2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the
court which is thereafter to try or dispose of such suit or proceeding! may, subject to any special
directions in the case of an order of transfer, either retry it or proceed from the point at which it
was transferred or withdrawn.

(3) For the purposes of this section,

(a) courts of Additional and Assistant Judges shall be deemed to be subordinate to the District
Court;
 22

(b) "proceeding" includes a proceeding for the execution of a decree or order.

(4) The court trying any suit transferred or withdrawn under this section from a court of small
causes shall, for the purposes of such suit, be deemed to be a court of small causes. [(5) A suit or
proceeding may be transferred under this section from a court which has no jurisdiction to try it.]

Sec 25: Power of Supreme Court to transfer suits, etc.

(1) On ti e application of a party, and after notice to the parties, and after hearing such of them as
desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section
is expedient for the ends of justice, direct that any suit, appeal or other proceedings be transferred
from a High Court or other Civil Court in one State to a High Court or other Civil Court in any
other State.

(2) Every application under this section shall be made by a motion which shall be supported by an
affidavit.

(3) The court to which such suit, appeal or other proceeding is transferred shall, subject to any
special directions in the order of transfer, either re-try it or proceed from the stage at which it was
transferred to it.

(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that
the application was frivolous or vexatious, order the applicant to pay by way of compensation to
any person who has opposed the application such sum, not exceeding two thousand rupees, as it
considers appropriate in the circumstances of the case.

(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall
be the law which the court in which the suit, appeal or other proceeding was originally instituted
ought to have applied to such suit, appeal or proceeding.

Cases

Pushpa Devi Saraf v. Jai Narain

In the case of filing of petition for transfer making allegation against the presiding officer, the
report if and when called for, should normally be confined to the allegations made against the
Impartiality or faimess of the judge and not with respect to correctness or otherwise of the order
passed by him
 23

Munna Lal v State of UP

Family Court under Family Courts Act being a civil court, High Court is vested with the
jurisdiction to transfer the case from one Family Court to another Family court

Sri Vishnu Kant Jha v. Sri Dinesh Jha

It cannot be laid down as a general rule that in every case of transfer the transferor court is duty
bound to send a separate notice to each party.

D.A.V. Boys Sr. Sec. School v. D.A.V. College Managing Committee

If any application made for transfer, after notice to the parties, if the Court is satisfied that an order
of transfer is expedient for the ends of justice necessary direction may be issued for transfer of any
suit, appeal or other proceedings from a High Court or other Civil Court in one State to another
High Court or other Civil Court or other Civil Court in one State to another High Court or other
Civil Court in any other State.

Conclusion

Power of transfer must be exercised with due care and attention and with the interest of justice.
The court should decide the conflicting interest. Paramount consideration is justice and if the ends
of justice demands transfer of case the court shall not hesitate.
 24

6 MARKS

1. Foreign judgement

Introduction
SECTIONS 13 and 14 enact a rule of res judicata in case of foreign judgments. These provisions
embody the principle of private international law that a judgment delivered by a foreign court of
competent jurisdic- tion can be enforced by an Indian court and will operate as res judicata between
the parties thereto except in the cases mentioned in Section 13.

Definition

Sec 2(5): Foreign Court

"foreign Court" means a Court situate outside India and not established or continued by the
authority of the Central Government

Sec 2(6): Foreign judgement

"foreign judgment" means the judgment of a foreign Court;

Sec 13: When foreign judgment not conclusive

A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between
the same parties or between parties under whom they or any of them claim litigating under the
same title except,

a) where it has not been pronounced by a Court of competent jurisdiction;

(b) where it has not been given on the merits of the case;

(c) where it appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognise the law of [India] in cases in which such law is
applicable:

(d) where the proceedings in which the judgment was obtained are opposed to natural justice;

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in '[India].
 25

Sec 14: Presumption as to foreign judgments

The Court shall presume, upon the production of any document purporting to be a certified copy
of a foreign judgment, that such judgment was pronounced by a Court of competent jurisdiction,
unless the contrary appears on the record; but such presumption may be displaced by proving want
of jurisdiction.

Implementation of foreign judgement

Sec 44A: Execution of decrees passed by Courts in reciprocating territory

(1) Where a certified copy of a decree of any of the superior courts of [xxx] any reciprocating
territory has been filed in a District Court, the decree may be executed in [India] as if it had been
passed by the District Court.

(2) Together with the certified copy of the decree shall be filed a certificate from such superior
court stating the extent, if any, to which the decree has been satisfied or adjusted and such
certificate shall, for the purposes of proceedings under this section, be conclusive proof of the
extent of such satisfaction or adjustment.

(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to
the proceedings of a District Court executing a decree under this section, and the District Court
shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the
decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

Case laws

Vellachi v. Ramnathan
The judgement was given against the respondent by the Singapore court. Respondent said that he
is not bound by the the decision. Because he is not a subject of Singapore.
The appellant said that Respondent has partnership firm in Singapore. So he is bounded by the
Singapore court.
The court held that the partnership firm is bounded by the court decision. But the respondent is not
bounded in his personal capacity.

Gurudas v. mohindar Singh

The Punjab and haryana High court held that an experte judgement and decree which didn't show
that the plaintiff had led evidence to prove his claim before the court was not executable under
section 13(b) of cpc since it was not passed on the merits of the case.
 26

I &G Investment Trust v. Raja of Khalikotte

A suit was filed under the English jurisdiction to avoid the consequences of Orissa Money lenders
Act. Court held that judgement was passed on an incorrect view of International law.

Lalji Raja and sons v. Hansraj

Supreme court held that just because the suit was Decreed exparte although the defendants were
served with summons does not mean that judgement was opposed to natural Justice.

Sathya v. Teja Singh

a husband obtained a de- cree of divorce against his wife from an American court averring that he
was domiciled in America. Observing that the husband was not a bona fide resident or domicile of
America, and he had played fraud on a foreign court falsely representing to it incorrect
jurisdictional fact, the Supreme Court held that the decree was without jurisdiction and a nullity.

China Shipping development co. Ltd v. Lanyard Foods Ltd

foreign company had business relations with an Indian company. In connivance of a contract, some
goods were delivered by that foreign company to the Indian company through a cargo, but in the
middle of the transaction and this process of transfer of the cargo, that foreign company incurred
some liabilities to some third party.
During legal proceedings initiated by that third party, that foreign company had to pay some
amount of money. The foreign company demanded the sum of money from Indian company which
it has to pay during the legal proceedings. This demand was rejected by the Indian Company. The
foreign company filed a suit against the Indian company in the English Court. Now when Indian
company did not file the defence an ex-parte order was issued by the English court in the favour
of the petitioner foreign company.
Now a notice was issued to the Indian company by the foreign company u/s 433 and 434 of the
Companies Act, 1956 but the respondent Indian Company failed to pay the amount. Now a petition
was filed by the foreign company to wind up the Indian company which was admitted.

Conclusion

There is almost no issue having to rely on foreign court decisions. Even so, judges must be careful
not to give greater credit to case law decided in completely different social and economic scenarios.
Neither of these judgments are enforceable upon the Supreme Court of India, although they are
institutions of high compelling valuation to which the Judges may justifiably turn for guidance.
 27

2. Suit of civil nature

Introduction

In the suit, if the principal question relates to the determination of a civil right, then the suit is of a
civil nature. The expression suit of civil nature covers private rights and obligation of a citizen. If
the principal question relates to caste or religion, then it is not a suit of civil nature.

Sec 9: Courts to try all civil suits unless barred

The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a
civil nature excepting suits of which their cognizance is either expressly or impliedly barred.

Explanation: 'III: A suit in which the right to property or to an office is contested is a suit of a civil
nature, notwithstanding that such right may depend entirely on the decision of questions as to
religious rites or ceremonies.

[Explanation II: For the purposes of this section, it is immaterial whether or not any fees are
attached to the office referred to in Explanation I or whether or not such office is attached to a
particular place.]

A civil court has jurisdiction to try a suit if two conditions are fulfilled:

(i) The suit must be of a civil nature, and

(ii) The cognizance of such a suit should not have been expressly or impliedly barred.

Suit of civil nature

(i) Meaning

The word "civil" has not been defined in the Code. it pertains to private rights and remedies of a
citizen as distinguished from criminal, political, etc. The word "nature" has been defined as "the
fundamental qualities of a person or thing; identity or essential character; sort, kind, character".
The expression "civil nature" is wider than the expression "civil proceeding". Thus, a suit is of a
civil nature if the principal question therein relates to the determination of a civil right and
enforcement.
 28

(ii) Nature and scope- The expression "suit of a civil nature" will cover private rights and
obligations of a citizen. Political and religious questions are not covered by that expression. A suit
in which the principal question relates to caste or religion is not a suit of a civil nature. But if the
principal question in a suit is of a civil nature (the right to property or to an office) and the
adjudication incidentally involves the determination relating to a caste question or to religious
rights and ceremonies, it does not cease to be a suit of a civil nature and the jurisdiction of a civil
court is not barred." The court has jurisdiction to adjudicate upon those questions also in order to
decide the principal question which is of a vil nature Explanation Il has been added by civil the
Amendment Act of 1976. Before this Explanation, there was a divergence of judicial opinion as to
whether a suit relating to a religious office to which no fees or emoluments were attached can be
said to be a suit of a civil nature. But the legal position has now been clarified by Explanation II
which specifically provides that a suit relating to a religious office is maintainable whether or not
it carries any fees or whether or not it is attached to a particular place.

(iii) Doctrine explained - Explaining the concept of jurisdiction of civil courts under Section 9,
in Most Rev. P.M.A. Metropolitan v. Moran Mar Marthoma, the Supreme Court stated:

"The expansive nature of the section is demonstrated by use of phraseology both positive and
negative. The earlier part opens the door widely and latter debars entry to only those which are
expressly or impliedly barred. The two explanations, one exist- ing from inception and latter added
in 1976 bring out clearly the legislative intention of extending operation of the section to such
religious matters where right to property or office is involved ir- respective of whether any fee is
attached to the office or not) The language used is simple but explicit and clear. It is structured on
the basic principle of a civilised jurisprudence that absence of ma- chinery for enforcement of right
renders it nugatory. The heading which is normally key to the section brings out unequivocally
that all civil suits are cognizable unless barred. What is meant by. it is explained further by
widening the ambit of the section by use of the word 'shall' and the expression 'all suits of a civil
nature' unless 'expressly or impliedly barred

Each word and expression casts an obligation on the Court to exercise jurisdiction for enforcement
of right. The word 'shall' makes it mandatory. No Court can refuse to entertain a suit if it is of the
description mentioned in the section. That is amplified by the use of the expression, 'all suits of
civil nature'. The word 'civil' according to the dictionary means, 'relating to the citizen as an
individual; civil rights'. In Black's Law Dictionary it is defined as, 'relating to provide rights and
remedies sought by civil actions as contrasted with criminal proceedings. In law it is understood
as an antonym of criminal. Historically the two broad classifi cations were civil and criminal.
Revenue, tax and company, etc. were added to it later. But they too pertain to the larger family of
'civil. There is thus no doubt about the width of the word 'civil. Its width has been stretched further
by using the word 'nature' along with it. That is even those suits are cognizable which are not only
civil but are even of civil nature....
 29

The word 'nature' has been defined as 'the fundamental quali- ties of a person or thing; identity or
essential character, sort; kind; character'. It is thus wider in content. The word 'civil nature' is wider
than the word 'civil proceeding'. The section would, therefore, be available in every case where the
dispute was of the characteristic of affecting one's rights which are not only civil but of civil
nature."

(iv) Test-A suit in which the right to property or to an office is con- tested is a suit of a civil nature,
notwithstanding that such right may depend entirely on the decision of a question as to religious
rites or ceremonies,

(v) Suits of civil nature: Illustrations-The following are suits of a civil nature:

(i) Suits relating to rights to property;

(ii) Suits relating to rights of worship;

(iii) Suits relating to taking out of religious processions;

(iv) Suits relating to right to shares in offerings,

(v) Suits for damages for civil wrongs;

(vi) Suits for specific performance of contracts or for damages for breach of contracts;

(vii) Suits for specific reliefs;

(viii) Suits for restitution of conjugal rights;

(ix) Suits for dissolution of marriages;

(x) Suits for rents;

(xi) Suits for or on accounts;

(xii) Suits for rights of franchise;

(xiii) Suits for rights to hereditary offices;

(xiv) Suits for rights to Yajmanvritis;

 30

(xv) Suits against wrongful dismissals from service and for salaries, etc.

(vi) Suits not of civil nature: Illustrations-The following are not suits of a civil nature:

(i) Suits involving principally caste questions;

(ii) Suits involving purely religious rites or ceremonies;

(iii) Suits for upholding mere dignity or honour;

iv) Suits for recovery of voluntary payments or offerings;

(v) Suits against expulsions from caste, etc.

Conclusion

After reading the concept underlying section 9 of CPC, we can say that the civil court tries only
suits of civil nature. And the cases which are not of civil nature or the suits which are expressly or
impliedly barred are tried either in tribunals or councils or special courts specified under any
enactment. The questions purely relating to caste or religious ceremonies are decided by the
community or religious heads like priests, spiritual heads, etc. On the other side, questions that are
political in nature are decided by public administrative authorities.

3. Jurisdiction as Subject matter.

Refer qstn no. 3 in 10 marks

 31

4. Write a note on Decree.

Introduction

The adjudication of a court of law is divided into decree and orders. In this article, are going to
discuss the decree. The term “decree” has been defined under section 2(2) of the Code of Civil
Procedure,1908. The decree is a formal expression of adjudication by which the court determines
the rights of parties regarding the matter in controversy or dispute.

Meaning

Sec 2(2): “decree” means the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to
include the rejection of a plaint and the determination of any question within section 144, but shall
not include -
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation - A decree is preliminary when further proceedings have to be taken before the suit
can be completely disposed of. It is final when such adjudication completely disposes of the suit.
It may be partly preliminary and partly final.

Essential elements of a Decree

In order that a decision of a Court may be a ‘decree’, the following elements must be present –
Vidyacharan Shukla v. Khubchand Baghel,

i. There must be an adjudication;

ii. Such adjudication must have been done in a suit;
iii. It must have determined the rights of the parties with regard to all or any of the matters in
controversy in the suit;
iv. Such determination must be of a conclusive nature; and
v. There must be a formal expression of such adjudication.

Illustration decisions which are decrees:

i. Order of abatement of suit;

ii. Dismissal of appeal as time barred;
iii. Dismissal of suit or appeal for want of evidence or proof;
 32

iv. Rejection of plaint for non-payment of Court fees;

v. Granting or refusing to grant costs or instalment;
vi. Modification of scheme under Sec.92 of the Code;
vii. Order holding appeal is not maintainable;
viii. Order holding that the right to sue does not survive;
ix. Order holding that there is no cause of action;
x. Order refusing one of several reliefs.

Types of Decrees

The Code of Civil Procedure recognises the following classes of decrees:

i. Preliminary Decree
ii. Final Decree
iii. Partly preliminary and partly final decree.

i. Preliminary Decree – Where an adjudication decides the rights of the parties with regard to All
or any of the matters in controversy in the suit, but does not completely dispose of the suit, it is a
preliminary decree. A preliminary decree is passed in those cases in which the Court has first to
adjudicate upon the rights of the parties and has then to stay its hands for the time being, until it is
in a position to pass a final decree in the suit. In other words, a preliminary decree is only a stage
in working out the rights of the parties which are to be finally adjudicated by a final decree
– Mool Chand v. Director, Consolidation,

The Code provides for passing of preliminary decrees in the following suits:

i. Suits for possession and mesne profits

ii. Administration suits
iii. Suits for pre-emption
iv. Suits for dissolution of partnership
v. Suits for accounts between principal and agent
vi. Suits for partition and separate possession
vii. Suits for foreclosure of a mortgage
viii. Suits for sale of mortgaged property
ix. Suits for redemption of a mortgage

ii. Final Decree – A decree may be said to be final in two ways:

i. When within the prescribed period no appeal is filed against the decree or the matter has been
decided by the decree of the highest Court; and
 33

ii. When the decree, so far as regards the Court passing it, completely disposes of the suit –
Shankar v. Chandrakant,

A final decree is one which completely disposes of a suit and finally settles All questions in
controversy between parties and nothing further remains to be decided thereafter. Thus in a suit
for recovery of money, if the amount found due to the Decree-Holder is declared and the manner
in which the amount is to be paid has also been laid down, the decree is a final decree. Similarly,
a decree passed for a sum representing past mesne profits and future mesne profits at a particular
rate, without directing any further enquiry is a final decree. Thus, where a decree passed by a
special Court did not contemplate any further proceedings, the decree, even though described as a
preliminary decree, in substance was a final decree.

Ordinarily, there will be one preliminary decree and one final decree in one suit – Babburu
Basavayya V. Babburu Guruvayya,

iii. Partly preliminary and partly final decree

A decree may be partly preliminary and partly final, e.g., in a suit for possession of immovable
property with mesne profits, where the Court:
a) decrees possession of the property; and
b) directs an enquiry into the mesne profits.

The former part of the decree is final, while the latter part is only preliminary because the final
decree for mesne profits can be drawn only after enquiry, and the amount due is ascertained. In
such a case, even though the decree is only one, it is partly preliminary and partly final – Lucy
Kochuvareed v. P. Mariappa Gounder,

Conclusion

The Code of Civil Procedure lays down provisions to pronounce and issue the decision of the
Court and decree is one of them. A decree in the decision of a court which determines the rights
in dispute between the parties to suit. A decree can be preliminary, final or partly preliminary and
partly final. There is also a concept of the deemed decree. A decree is different from order and
judgement in many ways.

5. Doctrine of Res Subjudice (2)

Refer qstn no. 5 in 10 marks

 34

6. Suit of Civil Nature.

Refer qstn no. 3 in 10 marks

7. Res judicata

Refer qstn no. 1 in 10 marks

8. 'A' residing in Delhi, beats 'B' in Calcutta. 'B' wants to file a suit against
'A'. Where he can sue ? Advise him.

9. Sri Ramesh has instituted a suit against his wife Aruna In the civil court
at Dharawad. Aruna is residing at Kalaburagi with her parents. She has
no income of her own and hence, she is finding it difficult to travel to
Dharawad frequently to attend the proceedings. Advise her.

10.'A' residing in Delhi publishes in Calcutta statements of defamation to

'B'. The newspaper is circulated in Bombay, Madras and Raipur. 'B'
wants to file a suit against 'A'. Where he can sue ? Advise him.
 35

UNIT 2

10 MARKS

1. What are 'costs'? Explain the different types of costs awarded in civil cases.
2. Explain the general rules of pleading. ·
3. Explain the circumstances under which leave to amend the pleadings shall be refused.
4. What is plaint? State the circumstances when plaint can be rejected.
5. What are the rules regarding institution of suits? Explain.
6. Explain the essentials of a plaint.
7. Explain the fundamental rules of pleadings. When the amendment of pleadings is
permissible?
8. State the provisions of CPC relating to joinder of parties. What is the effect of non-joinder
of necessary parties?
9. Explain the different modes of service of Summons. (2)
10. Elucidate the essential contents of a written statement.

6 MARKS

1. Written statement - Defences available to the defendant. (2)

2. Set-off and counter claim.
3. Write a note on misjoinder of parties.
4. Counter claim. (4)
5. Substitute service.
6. Joinder of parties. (2)
7. Rejection of plaint
 36

10 MARKS

1. What are 'costs'? Explain the different types of costs awarded in civil
cases.

Introduction

In every legal action, there is one party that emerges successful, and one that is declared guilty.
Costs are a statutory allowance that are paid by the guilty party to the successful party. Costs in a
civil suit are dealt under Sections 35, 35A, 35B and Order XX-A of CPC.

Meaning

Black Law’s Dictionary: “cost is a pecuniary allowance made to the successful party for his
expenses in prosecuting or defending a suit or a distinct proceeding with a suit.”

Under the explanation in sec 35 :

the expression "costs" shall mean reasonable costs relating to-

(i) the fees and expenses of the witnesses incurred;

ii) legal fees and expenses incurred;

(iii) any other expenses incurred in connection with the proceedings.

Types of Costs

The Code provides for the following kinds of costs:

(i) General costs-Section 35;

(ii) Miscellaneous costs- Order 20-A;

(iii) Compensatory costs for false and vexatious claims or defences- Section 35-A; and

(iv) Costs for causing delay- Section 35-B.

 37

(i) General costs-Section 35:

(1) In relation to any commercial dispute, the Court has the discretion to determine:

(a) whether costs are payable by one party to another;

(b) the quantum of those costs;
(c) when they are to be paid.

(2) If the Court decides to make an order for payment of costs, the general rule is that the
unsuccessful party will be ordered to pay the costs of the successful party

Illustration: The Plaintiff, in his suit, seeks a money decree for breach of contract, and damages.
The Court holds that the Plaintiff is entitled to the money decree. However, it returns a finding that
the claim for damages is frivolous and vexatious.
In such circumstances the Court may impose costs on the Plaintiff, despite the Plaintiff being the
successful party, for having raised frivolous claims for damages.

(3) In making an order for the payment of costs, the Court shall have regard to the following
circumstances, including-

(a) the conduct of the parties;

(b) whether a party has succeeded on part of its case, even if that party has not been wholly
successful;

(c) whether the party had made a frivolous counter-claim leading to delay in the disposal of the
case;

(d) whether any reasonable offer to settle is made by a party and unreasonably refused by the other
party; and

(e) whether the party had made a frivolous claim and instituted a vexatious proceeding wasting the
time of the Court.

(ii) Miscellaneous costs- Order 20-A

Rule 1: Provisions relating to certain items

The Court may award costs in respect of:

 38

(a) expenditure incurred for the giving of any notice required to be given by law before the
institution of the suit;

(b) expenditure incurred on any notice which, though not required to be given by law, has been
given by any party to the suit to any other party before the institution of the suit;

(c) expenditure incurred on the typing, writing or printing of pleadings filed by any party;

(d) charges paid by a party for inspection of the records of the court for the purposes of the suit;

(e) expenditure incurred by a party for producing witnesses, even though not summoned through
court; and

(f) in the case of appeals, charges incurred by a party for obtaining any copies of judgments and
decrees which are required to be filed along with the memorandum of appeal

Rule 2: Costs to be awarded in accordance with the rules made by High Court

The award of costs under this rule shall be in accordance with High Court may make in that behalf.

(iii) Compensatory costs for false and vexatious claims or defences- Section 35-A

(1)If in any suit or other proceedings, [including an execution proceeding but [excluding an appeal
or a revision]], any party objects to the claim or defence on the ground that it is false or vexatious
and if such claim or defence is disallowed, abandoned or withdrawn, the Court may make an order
for the payment of cost by way of compensation to the objector by the party by whom such claim
or defence has been put forward, after recording its reasons for holding such claim or defence to
be false or vexatious.

(2) No Court shall make any such order for the payment of an amount exceeding three thousand
rupees or exceeding the limits of its pecuniary jurisdiction, whichever amount is less:

PROVIDED that where the pecuniary limits of the jurisdiction of any court exercising the
jurisdiction of a Court of Small Causes under the Provincial Small Cause Courts Act, 1887 (9 of
1887), or under a corresponding law in force in any part of India to which the said Act does not
extend and not being a court constituted under such Act or law, are less than two hundred and fifty
rupees, the High Court may empower such court to award as costs under this section any amount
not exceeding two hundred and fifty rupees and not exceeding those limits by more than one
hundred rupees:
 39

PROVIDED FURTHER, that the High Court may limit the amount which any court or class of
courts is empowered to award as costs under this section.

(3) No person against whom an order has been made under this section shall, by reason thereof, be
exempted from any criminal liability in respect of any claim or defence made by him.

(4) The amount of any compensation awarded under this section in respect of a false or vexatious
claim or defence shall be taken into account in any subsequent suit for damages or compensation
in respect of such claim or defence.

Conditions

The following conditions must exist before this sec- tion can be applied:

(1) the claim or defence must be false or vexatious;

(2) objections must have been taken by the other party that the claim or defence was false or
vexatious to the knowledge of the party raising it; and

(3) such claim must have been disallowed or withdrawn or abandoned in whole or in part.

(iv) Costs for causing delay- Section 35-B.

(1) If, on any date fixed for the hearing of a suit or for taking any step therein, a party to the suit-

(a) fails to take the step which he was required by or under this Code to take on that date, or

(b) obtains an adjournment for taking such step or for producing evidence or on any other ground,

the court may, for reasons to be recorded, make an order requiring such party to pay to the other
party such costs, as would, be reasonably sufficient to reimburse the other party in respect of the
expenses incurred by him in attending the court on that date, and payment of such costs, on the
date next following the date of such order, shall be a condition precedent to the further prosecution
of,

(a) the suit by the plaintiff, where the plaintiff was ordered to pay such costs,

(b) the defence by the defendant, where the defendant was ordered to pay such costs.
 40

Cases

Ashok Kumar v. Ram Kumar,

the Supreme Court observed that the present system of levying meagre costs in civil mat- ters is
wholly unsatisfactory and does not act as a deterrent to vexa- tious or luxury litigation. More
realistic approach relating to costs is the need of the hour.

Vinod Seth v. Devinder Bajaj

Section 35A provides for levy of compensatory costs in respect of any false or vexatious claim.

Tungabhadra Industries Ltd. v. Govt. of A.P.

The general rule relating to costs is that costs should follow the event, i.e. a successful party must
get the costs and the loosing party should pay to the other side.

A.S. lyer v. Balasubramanyam

Even a successful party may be deprived of costs if he is guilty of misconduct or there are other
reasons to do so.

Arivandanam v. T.V. Satyapal

If the court is satisfied that the litigation was inspired by vexatious motive and was altogether
groundless, it can take deterrent action.

Conclusion

‘Costs’ are statutory allowance to a party to an action for his expenses incurred in the action. They
are in the nature of incidental damages allowed to the successful partyto indemnify him against
the expenses of asserting his rights in Court, when the necessity for so doing is caused by the
other's breach of legal duty.
 41

2. Explain the general rules of pleading. ·

Introduction

Pleadings are the foundation stone on which the case of a party stands. The case of a party must
be set out in the pleadings. Order 6 of cpc deals with Pleadings Generally. The object of pleadings
is to ascertain the real disputes between the parties, to narrow down the area of conflict and to
prevent miscarriage of justice.

Definition

Order 6 Rule 1: "Pleading" shall mean plaint or written statement.

There are 2 General Rules of Pleading:

1. Fundamental or Basic Rules

2. Particulars or Other Rules

Order 6 Rule 2(1): Fundamental or Basic Rules of Pleading:

i. Pleadings should state facts and not law;

ii. The facts stated should be material facts;

iii. Pleadings should not state the evidence;

iv. The facts should be stated in a concise form.

1. Facts and not law

The first principle of pleadings is that they should state only facts and not law. It is the duty of the
parties to state only the facts on which they rely upon for their claims. It is the court who apply the
law to the facts pleaded.

2. Material Facts

The second principle of pleadings is that they should contain a statement of material facts and
material facts only. Material facts means all facts upon which the plaintiff's cause of action or the
defendant's defence depends, or, in other words, all those facts which must be proved in order to
 42

establish the plaintiff's right to relief claimed in the plaint or the defendant's defence in the written
statement.

3. Facts and Not evidence

The third principle of pleadings is that the pleadings should contain a statement of material facts
on which the party relies but not the evidence by which those facts are to be proved.

The facts are of two types:

a. Facta probanda: the facts required to be proved (material facts);

b. Facta probantia: the facts by means of which the case to be proved (particulars or
evidence)

The pleadings should contain only facta probanda and not facta probantia. The material facts on
which the plaintiff relies for his claim or the defendant relies for his defence are called facta
probanda, and they must be stated in the plaint or in the written statement. But the facts or evidence
by means of which the material facts are to be proved are called facta probantia and need not be
stated in the plead- ings.

4. Concise form

The fourth and the last general principle of pleadings is that the pleadings should be drafted briefly
and precisely. The material facts should be concise and reasonable.

Order 6 Rule2(2): Every pleading shall be divided into paragraphs, numbered consecutively and
each allegation should be in a separate paragraph.

Order 6 Rule 2(3): Dates, sums and numbers shall be expressed in figures as well as in words.

Order 6 Rules 4-18: Particulars or Other Rules of Pleading

1. Wherever misrepresentation, fraud, breach of trust, wilful default or undue influence are
pleaded in the pleadings, particulars with dates and items should be stated
2. The performance of a condition precedent need not be pleaded since it is implied in the
pleadings. Non-performance of a condition precedent must be specifically and expressly
pleaded.
3. No pleading shall raise any new ground of claim or contain any allegation of fact
inconsistent with the previous pleadings.
 43

4. A bare denial of a contract by the opposite party will be con- strued only as a denial of facts
of a contract and not the legality, validity or enforceability of such contract
5. Documents need not be set out in detal unless the words in the documents are material.
6. Wherever malice, fraudulent intention, knowledge or other condition of the mind of a
person is material, it may be alleged in the pleading only as a fact without setting out the
circumstances from which it is to be inferred.
7. Whenever giving of notice to any person is necessary, pleadings should only state
regarding giving of such notice, without setting out the form or precise terms of such notice
or the circumstances from which it is to be inferred, unless they are material.
8. Implied contracts or relations between persons may be alleged as a fact
9. The burden of proof need not be mentioned in the pleading
10. Every pleading should be signed by the party or by his pleader
11. The address of the parties must must be mentioned in the pleading
12. Every pleading should be verified on affidavit by the party
13. A court may order striking out a pleading if it is unnecessary, scandalous, frivolous,
vexatious or tends to prejudice, embarrass or delay fair trial of the suit.
14. A court may allow amendment of pleadings.
15. Every pleading should be divided into paragraphs, numbered consecutively. Each
allegation or averment should be stated in a separate paragraph.
16. Dates, totals and numbers should be written in figures as well as in words.

Cases

Ibrahim kutty v Abdulla

Easementary right is a specific right. So it has to be pleaded specifically. (right to way, water,
sunlight etc). Indian Easements Act- sec 4

Udhav Singh v. Madhav Rao Scindia,

the Supreme Court has de- fined the expression "material facts" in the following words:
"All the primary facts which must be proved at the trial by a party to establish the existence of a
cause of action or his defence are material facts."

Virender Nath v. Satpal Singh,

the Supreme Court stated:

"The phrase 'material facts' may be said to be those facts upon which a party relies for his claim or
defence. In other words, 'ma- terial facts' are facts upon which the plaintiff's cause of action or the
defendant's defence depends.
 44

Philipps v. Philipps

Brett, L.J. also stated, "I will not say that it is easy to express in words what are facts which must
be stated and what matters need not be stated.... The distinction is taken in the very rule itself,
between the facts on which the party relies and the evidence to prove those facts.... The facts which
ought to be stated are the material facts on which the party pleading relies."

Conclusion

pleadings are the backbone of a trial. It is the foundation stone on which the case of a party stands.
The proper formulating of pleading determines the future of the case. Pleading from the side of
the plaintiff is the Plaint and the reply to the allegations made in the plaint is known as Written
Statement. The plaint may also be amended subject to the conditions and requisites
 45

3. Explain the circumstances under which leave to amend the pleadings

shall be refused.

Introduction

The most challenging problem facing the administration of justice in India is the backlog and
resulting delay in criminal and civil cases at every level, from the lower courts to the Supreme
Court. One of the provisions which contribute to it is provision related to amendment of pleadings
given in Order VI, rule 17 of the Code of Civil Procedure.

Definition

Order 6 Rule 1: "Pleading" shall mean plaint or written statement.

There are 2 General Rules of Pleading:

1. Fundamental or Basic Rules

2. Particulars or Other Rules

Order 6 Rule 17: Amendment of Pleadings

The Court may at any stage of the proceedings allow either party to alter or amend his pleadings
in such manner and on such terms as may be just, and all such amendments shall be made as may
be necessary for the purpose of determining the real questions in controversy between the parties:

PROVIDED that no application for amendment shall be allowed after the trial has commenced,
unless the Court comes to the conclusion that in spite of due diligence, the party could not have
raised the matter before the commencement of trial.

Different kinds of amendment

The occasion for amendment arises

in five different ways, namely:
(i) Section 152 (amendment of clerical and arithmetical mistakes in judgments, decrees and
orders).
(ii) Section 153 (amendment of proceedings in a suit by the court, whether moves thereto by the
parties or not, for the purpose of determining the real question or issue between the parties).
(iii) Order 1, r 10, sub-r (2) (striking out or adding parties).
(iv) Order 6, r 16 (amending your opponents pleading: compulsory amendment).
(v) Order 6, r 17 (amending your own pleading: voluntary amendment).
 46

Leave to amend when granted

The rule confers a very wide discretion on courts in the matter of amendment of pleadings. As a
general rule, leave to amend will be granted so as to enable the real question in issue between the
parties to be raised in pleadings, where the amendment will occasion no injury to the opposite
party and can be sufficiently compensated for by costs or other terms to be imposed by the order.

Kisandas v. Rachappa Vithoba

All amendments ought to be allowed which satisfy the two conditions

(a) of not working injustice to the other side, and
(b) of being necessary for the purpose of determining the real questions in controversy between
the parties.

Leave to amend when refused

It is true that courts have very wide discretion in the matter of amend- ment of pleadings. But the
wider the discretion, the greater is the pos- sibility of its abuse. Ultimately, it is a legal power and
no legal power can be exercised improperly, unreasonably or arbitrarily.

Ganga Bai v. Vijay Kumar

the Supreme Court has rightly observed:

"The power to allow an amendment is undoubtedly wide and may at any stage be appropriately
exercised in the interest of jus- tice, the law of limitation notwithstanding. But the exercise of such
far-reaching discretionary powers is governed by judicial considerations, and wider the discretion,
greater ought to be the care and circumspection on the part of the court."

Leave to amend pleadings will be refused by the court in the following cases

1)where the amendment is not necessary

Leave to amend will be refused where the amendment is not necessary for the purpose of
determining the real question in controversy between the parties. The "real controversy" test is the
basic test and it is the primary duty of the court to decide whether such amendment is necessary to
decide the real dispute between the parties. If it is, the amendment will be allowed; if it is not, the
amendment will be refused. Therefore, if the amendment is not necessary or is merely technical or
useless or without any substance, it will be refused.
 47

Edevian v. Cohen
In that case, A's furniture was wrongfully removed by B and C. A sued B for damages and for
judgments against B. A then sued C for damages for the Same wrong. After A's evidence was over,
C applied for amendment of written statement by pleading judgment against B as bar to suit against
him. B and C being wrongdoers, the judgment against B prevented A from suing C for the same
wrong. The application was rejected since it was not necessary to decide the real question in
controversy between the parties but enabled C to avail for himself the benefit of the technical rule
of law.

2)If it introduces a totally different, new and inconsistent case

Leave to amend will be refused if it introduces a totally different, new and inconsistent case or
changes the fundamental character of the suit or defence.

Steward v. North Metropolitan Tramways Co.

the plaintiff filed a suit for damages against the tramway company for damages caused by the
negligence of the company in allowing the tramway to be in defective condition. The company
denied the allegation of negligence. It was not even contended that the company was not the proper
party to be sued. More than six months after the written statement was filed, the company applied
for leave to amend the defence by adding the plea that under the contract entered into between the
company and the local authority the liability to maintain the roadway in proper condition was of
the latter and, therefore, the company was not liable. At the date of the amendment application,
the plaintiff's remedy against the local authority was time-barred. Had the agreement been pleaded
earlier, the plaintiff could have filed a suit even against the lo- cal authority. Under the
circumstances, the amendment was refused.

3)where amendment takes away a legal right

Leave to amend will be refused where the effect of the proposed amendment is to take away from
the other side a legal right accrued in his favour.

As a general rule, every amendment should be allowed if it can be made without prejudice or
injustice to the other side, and one of the classes of cases wherein the amendment may work
injustice to the opposite party is where it takes away from a party a right accrued to him by lapse
of time. Therefore, in absence of special circumstances such an amendment should not be allowed
by the court.

Weldon v. Neal
In that case, A filed a suit against B for damages for slander. A thereafter applied for leave to
amend the plaint by adding fresh claims in respect of assault and false imprisonment. At the date
 48

of the application, those claims were barred by limitation though they were within the period of
limi- tation at the date of the suit. The amendment was refused since the effect of granting it would
be to take away from B the legal right (the defence under the law of limitation).

4)where amendment is not made in good faith

Leave to amend will be refused where the application for amendment is not made in good faith.

Pirgonda Patil v. Kalgonda Patil

As a general rule, leave to amend ought not to be granted if the applicant has acted mala fide.

Kanakarathanammal v. V.S. Loganatha Mudaliar

Want of bona fides may be inferred from the circumstances of the case. When there is no
substantial ground for the case proposed to be set up by the amendment, or the object is to defeat
or delay the plaintiff's claim, or merely to reagitate the same question and lead further evidence,
the amendment was not granted as not being bona fide,

Patasibai v. Ratanlal
when, in an earlier proceeding, a compromise decree was passed and had become final, in a
subsequent suit, the plaintiff cannot be allowed to amend his plaint by permitting him to raise
contentions that had not found favour with the court. Apart from being highly belated, it was an
afterthought for averting the inevitable consequence of earlier litigation. Such amendment,
therefore, cannot be said to be bona fide.

Conclusion

It can be concluded that the amendment of pleading is necessary to avoid multiplicity of civil suits.
But, the court cannot grant the leave of amendment at its whims and fancies. There has to be certain
criterion for granting or refusing the leave, which has been laid down in case laws. It is a well
known fact that delay in justice is one of the basic flaws of the Indian Judiciary and amendment
of pleadings is a vital reason for that.
 49

4. What is plaint? State the circumstances when plaint can be rejected.

Introduction

When any plaint is presented to the court, then it is the first duty of the court to examine the plaint
properly for determining, whether it should be tried or returned or rejected and in order to
determine the question regarding the rejection of the plaint, and its is also the responsibility of the
court to take consideration of other material facts too. Order 7 Rule 11 of CPC mentions the
provisions, related to the rejection of plaint.

Meaning

The expression "plaint" has not been defined in the Code. However, it can be said to be a statement
of claim, a document, by presentation of which the suit is instituted. Its object is to state the grounds
upon which the assistance of the court is sought by the plaintiff. It is a pleading of the plaintiff.

Order VII Rule 11: Rejection of plaint

The plaint shall be rejected in the following cases:-

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to
correct the valuation within a time to be fixed by the court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently
stamped, and the plaintiff, on being required by the court to supply the requisite stamp-paper within
a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provisions of rule 9:

PROVIDED that the time fixed by the court for the correction of the valuation or supplying of the
requisite stamp-papers shall not be extended unless the court, for reasons to be recorded, is satisfied
that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation
 50

or supplying the requisite stamp papers, as the case may be, within the time fixed by the court and
that refusal to extend such time would cause grave injustice to the plaintiff.

i) Where plaint does not disclose cause of action

If the plaint filed by the plaintiff does not disclose any cause of action, the court will reject it. But
in order to reject the plaint on this ground, the court must look at the plaint and at nothing else.

The power to reject a plaint on this ground should be exercised only if the court comes to the
conclusion that even if all the allegations set out in the plaint are proved, the plaintiff would not
be entitled to any relief. In that case, the court will reject the plaint without issuing sum- mons to
the defendants. The reading of the plaint should be mean- ingful and not formal. But where the
plaint does not disclose cause of action, clever drafting, ritual of repeating words or creation of an
illusion cannot insert a cause of action in a plaint.

Again, there is a difference between a plea that the plaint does not disclose a cause of action and a
plea that there is no cause of action for instituting a suit. For determining whether the plaint
discloses the cause of action or not, averments in the plaint alone are relevant and material.

Roop Lal v. Nachhattar Singh

the plaint can be rejected as a whole if it does not disclose the cause of action. A part of it cannot
be rejected.

(ii) Where relief claimed is undervalued

Where the relief claimed by the plaintiff is undervalued and the valuation is not corrected within
the time fixed or extended by the court, the plaint will be rejected.

Meenakshisundaram v. Venkatachalam

In considering the question whether the suit is properly valued or not, the court must confine its
attention to the plaint only and should not look at the other circumstances which may subsequently
influence the judgment of the court as to the true value of the relief prayed for.

(iii) Where plaint is insufficiently stamped

Sometimes the relief claimed by the plaintiff is properly valued, but the plaint is written upon a
paper insufficiently stamped and the plaintiff fails to pay the requisite court fees within the time
fixed or extended by the court. In that case, the plaint will be rejected.
 51

Mannan Lal v. Chhotaka Bibi

if the requisite court fee is paid within the time extended by the court, the suit or appeal must be
treated as instituted from the date of presenta- tion of plaint or memorandum of appeal for the
purpose of limitation as well as payment of court fee.

If the plaintiff cannot pay the court fees, he may apply to continue the suit as an indigent person.

(iv) Where suit is barred by law

Where the suit appears from the statements in the plaint to be barred by any law, the court will
reject the plaint.

Bhagchand v. Secy, of State

For instance, where in a suit against the government, the plaint does not state that a "notice" as
required by Section 80 of the Code has been given, the plaint will be rejected under this clause.

B.L. Chopra v. Punjab State

But where waiver of such notice is pleaded, the court cannot reject the plaint without giving the
plaintiff an opportunity to establish that fact." Likewise, if the plaint itself shows that the claim is
barred by limitation, the plaint can be rejected.

Arjan Singh v. Union of India

But if the question of limitation is connected with the merits of the case, the matter requires to be
decided along with other issues.

(v) Where plaint is not in duplicate

The plaint has to be filed in duplicate. If the said requirement is not complied with the plaint will
be rejected.

(vi) Where there is non-compliance with statutory provisions

Where the plaintiff fails to comply with the provisions of Rule 9, the plaint will be rejected.

(vii) Other grounds

The grounds for rejection of plaint specified in Rule 11 of Order 7 are not exhaustive. On other
relevant grounds also a plaint can be rejected. Thus, if the plaint is signed by a person not
 52

authorised by the plaintiff and the defect is not cured within the time granted by the court, the
plaint can be rejected.

Arivandanam v. T.V. Satyapal

where the plaint is found to be vexatious and meritless, not disclosing a clear right to sue, the court
may reject the plaint under this rule.

Rule 12: Procedure on rejecting plaint

Where a plaint is rejected, the Judge shall record an order to that effect with the reasons for such
order.

Rule 13: Where rejection of plaint does not preclude presentation of fresh plaint

The rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force
preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

Conclusion

Order 7, Rule 11 of the Code of Civil Procedure (CPC) plays a critical role in ensuring that the
legal system operates effectively and efficiently. It gives the court the authority to examine the
plaint that has been submitted to it and decide whether or not it should be rejected. The court can
preserve the overall integrity of the judicial process by carefully examining the complaint to
determine its legitimacy, evaluate its adherence to the law and procedural rules, and determine its
compliance.
 53

5. What are the rules regarding institution of suits? Explain.

Introduction
Institution of suit under CPC refers to the formal commencement of a legal action or civil suit by
a plaintiff against a defendant in a court of law. The institution of suit initiates the legal process by
which the plaintiff seeks a legal remedy, such as a judgment, order or decree, for a particular issue
or dispute.

Meaning
The term "suit" has not been defined in the Code. According to the dictionary meaning, "suit" is a
generic term of comprehensive signification referring to any proceeding by one person or persons
against another or others in a court of law wherein the plaintiff pursues the remedy which the law
affords him for the redress of any injury or the enforcement of a right, whether at law or in equity.
Ordinarily, a suit is a civil proceeding instituted by the presentation of a plaint.

Sec 26: Institution of suits

[(1)] Every suit shall be instituted by the presentation of a plaint or in such other manner as may
be prescribed.

[(2) In every plaint, facts shall be proved by affidavit:]

PROVIDED that such an affidavit shall be in the form and manner as prescribed under Order VI
Rule 15A

ORDER IV
Order IV Rule 1: Suit to be commenced by plaint

(1) Every suit shall be instituted by presenting a [plaint in duplicate to the court] or such officer as
it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI and VII, so far as they are
applicable.

[(3) The plaint shall not be deemed to be duly instituted unless it complies with the requirements
specified in sub-rules (1) and (2)].

Order IV Rule 2: Register of suits

The court shall cause the particulars of every suit to be entered in a book to be kept for the purpose
and called the register of civil suits. Such entries shall be numbered in every year according to the
order in which the plaints are admitted.
 54

ESSENTIALS FOR SUIT

Suits may be instituted in accordance with Section 26 and Order IV of the Civil Procedure Code.
Every lawsuit must be started by presenting a duplicate plaint to the court or the official designated
in this regard. An affidavit must also be given to substantiate the facts presented to the court. This
part should be read with Orders IV, VI, and VII of the first schedule. Section 26 of the CPC and
Rule 1 of Order IV must be read together to extend the legislation specified in that section.

According to this regulation, a lawsuit can only be considered properly launched if it is submitted
as a plaint and is submitted to the court or an appropriate official designated in this regard.
Additionally, such a plaint must adhere to the Order VI & VII regulations.

There are namely 4 essentials that have been laid out in the case of Krishnappa v
Shivappa, wherein the court held that, for a suit to exist, there is a need for the following 4
essentials to be present which are as follows:

Opposing Parties (Order I)

For a suit to be valid, there must be two separate parties, i.e., a plaintiff and a defendant. Any
number of plaintiffs and defendants can exist in a suit, and there is no bar to the maximum number
of parties to a suit. Under CPC, there is recognition of two types of parties, namely a necessary
party and a property party. Necessary parties are those whose presence is vital and without such
parties, the suit cannot be proceeded, and the court can pass no effective order. While in the case
of a proper party, an order can be passed even in the absence of the party, but their presence is
necessary for the final order and decision to be passed.

Subject Matter

The subject matter refers to the different set of facts that a plaintiff has to prove in order for him
to claim the relief sought by him. Under the Code of Civil Procedure (CPC) in India, the term
“subject matter” refers to the nature or type of dispute or claim that can be brought before a civil
court. The CPC provides guidelines regarding the jurisdiction of various courts based on the
subject matter of the dispute. The subject matter determines which court can hear and adjudicate
the case. The CPC recognizes different subject matters for civil suits, including Money, Property,
Matrimonial, and family, Suits for Tort, Suits for Specific performance, Injunction, Testamentary
and succession, and suits for appeals and revisions. These are just a few examples of the subject
matters covered under the CPC. The specific subject matter and the corresponding court that has
jurisdiction over a particular dispute may vary depending on the nature and value of the claim, the
geographic location, and the relevant laws and regulations.
 55

Cause of Action (Order II, Rule 3,6, &7)

For the plaintiff to claim his relief, he has to prove in the court all facts and circumstances stated
in the plaint to be true and serves as a foundation for the suit to stand valid. It should consist of all
facts wherein the rights of the plaintiff are infringed against which he seeks redressal which
becomes the antecedent for filing any suit.

Order II, Rules 3, 6, and 7 of the Code of Civil Procedure (CPC) in India relate to the concept of
“cause of action” in civil suits. These rules establish guidelines regarding the joinder and splitting
of causes of action in a single suit.

The joining of causes of action is covered under Order II, Rule 3. According to this, a plaintiff may
combine all claims that result from a single act, transaction, or series of acts or transactions into a
single lawsuit as long as those claims are related to the same issue of law or fact. In other words,
a plaintiff may combine all of their legal claims against a defendant that are connected by a
common set of facts or circumstances into a single lawsuit.

The penalties for failing to bring a lawsuit as part of a claim or cause of action are covered under
Order II, Rule 6. It stipulates that a plaintiff cannot file a second lawsuit for any aspect of their
claim or cause of action that they purposefully or unintentionally left out of a lawsuit. This rule
discourages the division of causes of action and advances the final settlement of disputes by forcing
the plaintiff to bring their complete claim before the court.

An exception to Rule 6 is provided by Order II, Rule 7, which enables the plaintiff to file a new
lawsuit for a portion of the claim or cause of action that was not included in the initial lawsuit.
However, the missing component of the claim must contain a separate cause of action that the
plaintiff needed access to and knowledge of when the original lawsuit was filed for this exemption
to be applicable.

Therefore, as a result of the same act, transaction, or series of acts or transactions, Order II, Rule
3 permits the joining of causes of action in a single lawsuit. Order II, Rule 6 forbids the plaintiff
from launching a separate lawsuit for a claim or cause of action that was left out of the initial
lawsuit. An exception to Rule 6 is provided by Order II, Rule 7, which enables the plaintiff to file
a second lawsuit for a separate cause of action that was not recognized or accessible at the time
the first lawsuit was filed.

Relief Claimed
Relief is a legal remedy for the injustice that the plaintiff has suffered. A court will only grant a
remedy if the parties to the litigation explicitly demand it. There are two types of reliefs granted
by the Indian courts, namely: Specific and Alternative reliefs.
 56

INSTITUTION OF A SUIT UNDER CPC, 1908

A lawsuit goes through several phases, including serving of summons, written declarations, the
first hearing & issue-setting, the presentation of evidence and the final hearing, arguments,
judgment, and the creation and execution of decrees. The institution of a suit consists of the
following procedures to be followed in accordance with the laws.

a) Filing of a Plaint

Significantly, CPC 1908 does not define the term "plaint." The dictionary defines “plaint” as a
written statement of grievance submitted to a court of law seeking redress of the offense. Order
VII comprises several regulations and deals with the format for a written plaint.

According to Rule 1, a plaint should contain the following details:

i) Name of the Court where the suit is brought to,

ii) Name, residence and description of the plaintiff,
iii) Name, residence and description of the defendant (so far as to what can be
ascertained),
iv) If the plaintiff or defendant is a Minor or of unsound mind, then the statements to that effect
should be provided along with the plaint
v) Facts and circumstances constituting the cause of action for the suit to arose,
vi) Facts showing the jurisdiction of the court
vii) Reliefs claimed/sought by the plaintiff
viii) Claims set off or relinquished by the plaintiff should be made available to the court

According to Order VI Rule I of the CPC, 1908, pleadings are "a plaint or a written declaration."
The filing of a plaint is the initial stage of a lawsuit. After engaging in legal representation, the
plaintiff files a document known as a plaint containing numerous facts and circumstances about
their complaint. The complaint may be made orally or through a designated pleader. It has to be
delivered in duplicate. Here, one must adhere to the general standards of pleading, which call for
pleading relevant facts rather than those with evidential value. The date when lawsuits were
instituted was when the plaint was brought before the office. The parties must sign each pleading
[Order VI Rule 14], and an affidavit must accompany the plaint [Order VI Rule 15]. Orders VI &
VII must be followed since they will not be considered to have been lawfully implemented if the
regulations outlined in them are not followed.

According to P.C Mogha, Pleading has been defined as written declarations prepared
and submitted by each party to express their claims at trial and provide any other information the
other party needs to prepare their defence. It generally entails ways to focus the disagreement on
 57

a single subject and cut down on costs and delays, particularly regarding testimony from both
sides.

The Supreme Court of India has also laid down the basic purpose of a pleading to be as follows:

i) To give exact intimation of case to other.

ii) To enable the court for determination of what is the real issue between the parties.
iii) It is to prevent deviation from the real cause of litigation
b) Registration of Suit

According to Rule 2 of Order 4, Court must persuade details of each lawsuit to be recorded in a
book called Register of civil suits. Each year, these entries will be numbered in the order that the
complaints are admitted, but only after the payment of the court fee has been made correctly in the
court having pecuniary jurisdiction.

It is important to note that, the rule of Res Sub Judice and Res Judicata should not apply to the suit
being instituted10. Res Sub Judice refers to the pending matter before a competent court for
disposal, and Res Judicata refers to matters already decided by a court that involve the same parties
and subject matter of dispute. This is done to eliminate the chances of a multiplicity of suits and
to have a unified justice system for all.

c) Place of Suing

The venue of a lawsuit is crucial since it directly affects the court's ability to provide a ruling.
Choosing a court relies on the information in the complaint that is being filed. It alludes to the
issue of jurisdiction.

i. Pecuniary Jurisdiction

Pecuniary jurisdiction under the Code of Civil Procedure (CPC) of 1908 refers to
the monetary limits within which a particular court has the authority to hear and decide civil cases.
Each court is assigned a specific pecuniary jurisdiction based on the value or amount of the claim
involved in the suit. It determines the appropriate court for filing a case, ensuring that lower courts
handle matters of lower financial significance, while higher courts adjudicate higher-
value cases. The pecuniary jurisdiction of a court is crucial in determining the forum for a civil
suit, ensuring efficient resolution of disputes and access to justice at the appropriate level.
 58

Tara Devi v Shree Rhakur Radhakrishna Maharaj,

The court held that putting a value on relief by ignoring an objective valuation criterion may
be blatantly irrational and unfair, and the court may be justified in getting involved. Each court's
financial jurisdiction varies depending on one state to another.

ii. Territorial Jurisdiction

Territorial jurisdiction under the Code of Civil Procedure (CPC) of 1908 refers to
the geographical boundaries within which a court has the authority to entertain and adjudicate civil
cases. The principle of territorial jurisdiction ensures that a suit is filed in a court that has a
legitimate connection to the dispute or the parties involved. Territorial jurisdiction is determined
based on factors such as the location of the defendant, the place where the cause of action arises,
or where the property in dispute is situated. Generally, a court within whose local limits the
defendant resides or carries on business, or where the cause of action wholly or partially arises,
has territorial jurisdiction over the matter. There are namely 4 types of territorial jurisdictions
available under the provisions of Civil Procedure Code 1908.

These are as follows:

•Suits with respect to Immovable Property

•Suits with respect to Movable Property
•Suits with respect to compensations for losses suffered
•Other suits

Hakam Singh v Gammon India Ltd,

it dealt with the dispute where two or more courts have jurisdiction to entertain the suit. The court
upon hearing the case came to the conclusion that the Bombay court would have sole authority to
try the matter

d) Amendment of Pleadings

Under Rule 17, Order VI of Civil Procedure Code 1908, the court may, during the proceeding or
at any time, may allow the parties involved in the suit to alter, amend or bring changes in its
pleadings in a manner that is just and proper and in the interest of serving justice13.
Such amendments can only be made if the court finds it necessary to determine the
question in controversy.
 59

Rameshkumar Agarwal v Rajmala Exports Pvt Ltd,

the Supreme Court of India held that Courts cannot refuse to request made for amendments that
are bona fide, necessary, and honest. It also held that the objective behind this is to allow both
parties involved in a suit to be able to amend their pleadings, thus avoiding the plethora of lawsuits.

e) Return of Plaint

Order VII Rule 10 Sub-Rule 1 states that the plaint may be returned at any point throughout the
litigation. If the court determines at any point that it lacks jurisdiction, it must send the complaint
back to the appropriate court where it should have been filed. This complaint may be returned as
long as the lack of jurisdiction is mentioned in the complaint. Nevertheless, if the court examines
the plaint, parties and the evidences presented and comes to a conclusion, then the suit may be
dismissed. This power can only be exercised by an appellate or Revisional Court.

While returning a plaint, the judge has to perform certain duties which is namely to provide
endorsement over the request made, following which it has to provide a brief statement of
reasoning as to why the court has decided to return the plaint.

f) Rejection of Plaint

A plaint can be rejected on many grounds by a court of law. But it cannot be rejected only in part.
It is also important to note that there need not be any application made for the rejection of a suit
as the court may take suo motu actions.

Ram Prakash v Rajeev Kumar Gupta,

the court can reject a plaint at any time during or before a judgement is produced by the court. The
court also put forth a expansion to the term “at any stage of a suit” to include

i. Before the registration of the plaint

ii. After the issuing of summons to the defendants
iii. Any time before the trial is concluded.

Conclusion

The institution of suit under CPC is the formal initiation of a civil legal action in a court of law. It
involves the filing of a plaint by the plaintiff, specifying the facts and legal basis of the claim and
the relief sought. Choosing the appropriate court with jurisdiction, paying the required court fees
and serving a summons on the defendant are essential steps in the process.
 60

6. Explain the essentials of a plaint.

Introduction

A plaint is a legal document which contains the written statement of the plaintiff's claim. A plaint
is the first step towards the initiation of a suit. a pleading of the plaintiff, which outlines the
essentials of a suit, and sets the legal wheels up and running. Order VII of the CPC particularly
deals with a plaint.

Meaning

The expression "plaint" has not been defined in the Code. However, it can be said to be a statement
of claim, a document, by presentation of which the suit is instituted. Its object is to state the grounds
upon which the assistance of the court is sought by the plaintiff. It is a pleading of the plaintiff.

ORDER VII deals with Plaint.

Essentials of a Plaint

Particulars: order VII Rules 1-8

Every plaint should contain the following particulars:

(i) The name of the court in which the suit is brought;

(ii) The name, description and place of residence of the plaintiff;

(iii) The name, description and place of residence of the defendant.

(iv) Where the plaintiff or defendant is a minor or a person of unsound mind, a statement to that
effect;"

(v) The facts constituting the cause of action and when it arose;"

(vi) The facts showing that the court has jurisdiction;

(vii) A statement of the value of the subject-matter of the suit for the purpose of jurisdiction and
court fees;

(viii) The reliefs claimed by the plaintiff, simply or in the alternative;

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(ix) Where the plaintiff files a suit in a representative capacity, the facts showing that the plaintiff
has an actual existing interest in the subject-matter and that he has taken steps that may be
necessary to enable him to file such a suit;"

(x) Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so
allowed or relinquished;

(xi) Where the suit is for recovery of money, the precise amount claimed;

(xii) Where the suit is for accounts or mesne profits or for movables in the possession of the
defendant or for debts which cannot be determined, the approximate amount or value thereof;

(xiii) Where the subject-matter of the suit is immovable property a description of the property
sufficient to identify it, e.g. boundaries, survey numbers, etc.;

(xiv) The interest and liability of the defendant in the subject-matter of the suit;

(xv) Where the suit is time-barred, the ground upon which the exemption from the law of limitation
is claimed

Let us consider some important aspects in detail:

(1) Parties to suit

There must be two parties in every suit, namely, the plaintiff and the defendant. There may,
however, be more than one plaintiff or more than one defendant. But there must be at least one
plaintiff and one defendant in every suit. All particulars, such as name, father's name, age, place
of residence, etc., which are necessary to identify the parties, must be stated in the plaint.

(ii) Cause of action

Every suit presupposes the existence of a cause of action against the defendant because if there is
no cause of action, the plaint will have to be rejected.

Ganesh Trading Co. v. Moji Ram

Even though the expression "cause of action" has not been defined in the Code, it may be described
as "a bundle of essential facts, which it is necessary for the plaintiff to prove before he can
succeed", or "which gives the plaintiff right to relief against the defendant".
 62

Sadanandan v. Madhavan
"cause of action" means every fact, which it is necessary to establish to support a right or obtain a
judgment. To put it differently, cause of action gives occasion for and forms the foundation of the
suit.

iii) Jurisdiction of court

The plaint must state all the facts showing how the court has pecuniary and territorial jurisdiction
over the subject-matter of the suit. When the jurisdiction of a court to entertain the suit is disputed
by the defendant, the court may frame the issue to that effect and decide the same before deciding
other issues,

(iv) Valuation
The plaintiff must state in the plaint the valuation of the subject-matter of the suit for the purposes
of pecuniary jurisdiction of the court and court fees. Sometimes, the valuation of the subject-matter
for both the purposes may be the same, as, for example, in a suit for recovery of money. But
sometimes, two valuations may differ, as, for example, in a suit for declaration or in a suit for
injunction or for possession of immovable property. In such a case, the plaintiff should distinctly
state the valuation of the suit for the purpose of jurisdiction of the court and for the purpose of
court fees.

(v) Limitation: Rule 6

Rule 6 provides that where the suit is barred by limitation, it is necessary for the plaintiff to show
the ground of exemption in the plaint. But the proviso added by the Amendment Act of 1976
empowers the court to permit the plaintiff to rely on a new ground for exemption if it is not
inconsistent with the grounds mentioned in the plaint.

(vi) Relief: Rules 7-8

Every plaint must state specifically the relief claimed by the plaintiff either simply or in the
alternative. Where the relief is founded on separate and distinct grounds, they should be so stated.
Where the plaintiff is entitled to more than one relief in respect of the same cause of action, it is
open to him to claim all or any of such reliefs. But if he omits, except with the leave of the court,
to sue for any particular relief, he will not afterwards be allowed to sue for the relief so omitted.

Conclusion

A plaint is important in the sense that it is the first and foremost step towards instituting the suit.
Therefore, due care has to be taken to ensure that the procedure required for the initiation of plaint
has been duly recognized. It is mandatory to follow protocol by stating the relevant facts, the
necessary details, refrain from providing evidence and mention the kind of relief envisaged so that
the plaintiff is duly benefited.
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7. Explain the fundamental rules of pleadings. When the amendment of

pleadings is permissible?

Refer 10 marks, questions 2 and 3

8. State the provisions of CPC relating to joinder of parties. What is the

effect of non-joinder of necessary parties?

INTRODUCTION

Order I of the Code deals with the parties to the suit. Parties is one of the essential of the suit. It
also deals with the joinder, misjoinder, non-joinder of parties, addition, deletion of parties
and also representative suits.

A suit is a proceeding by which an individual persons that remedy which the law affords. In every
suit there must be at least one plaintiff and one defendant. Every suit must contain the cause of
action, which refers to the cause or set of circumstances which leads up to a suit. The subject matter
of the suit is the right or property claimed in the suit. The court adjudicates upon the right of
the parties with regard to the subject matter in dispute. The relief claimed should be specifically
stated in the plaint.

Plaintiffs and Defendants are two parties to the suit but there can be multiple plaintiffs and
defendants and then there will be question of joinder of parties. It may be joinder of plaintiffs (O.I
R.1) or it may be joinder of defendants (O.I R.3).

In this context, a party may be a necessary party or a proper party. Necessary means mandatory.
In other words Necessary Party is one without whom no order can be made effectively. But
parties in whose absence any effective order can be made but whose presence is necessary for final
and complete disposal of the case, then he is a proper party. For e.g. In a suit for eviction against
tenant, tenant is a necessary party but sub-tenant will be considered a proper party. In partition
suits, Coparceners are necessary parties. Coparceners are the owner of Joint Hindu properties. In
a land acquisition case where government has acquired land for local authority the government is
a necessary party because dispute between government and the party whose land is acquired and
the local authority is a proper party.
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RULE OF JOINDER
Joinder of Parties

1. Joinder of plaintiff – Order 1 Rule 1

2. Joinder of Defendant – Order 1 Rule 3
If the cause of action arises in favour of or against multiple persons then the question of
joinder of plaintiff and defendant arises. If the act is done by a single individual against a
single individual then the question of joinder of parties does not arise. Here, we essentially deal
with joinder of plaintiffs and defendants. The question of joinder of parties is a matter of procedure
and not of substantive rights. The primary object of joinder of parties is to ensure that all
suits are decided finally and conclusively on merits in presence of all parties.

When Plaintiffs may be joined [Order I Rule 1]

The provisions of [Order I Rule 1] state as to who may be joined as plaintiffs in a suit. The parties
who are to be joined as a plaintiffs in a suit are persons in whom and against whom any right to
relief in respect of or arising out of the same transaction or series of acts or transaction is alleged
to exist, whether jointly, severally or in the alternative and also where, if such persons were parties
in separate suits, any common question of law or fact would arise. It is necessary that both the
conditions should be satisfied. This rule simply seeks to bring all those persons who have the
right to relief in respect of any specific act either jointly or severally or alternatively in one
suit who if brings separate suit there will be common question of fact or law would arise in any
such suit.

Krishna v. Narsingh Rao,

that only pre-condition arise as to joined in one suit as a plaintiffs if the common question
of law or fact arose between the plaintiffs. For instance, A publishes a series of book under the
title Oxford and Cambridge Publication so as to induce the belief that books are the publication of
Oxford and Cambridge University or either of them. Whether these two universities may be
joined as a plaintiffs or not? The court on this point said that they can be joined together
because both the conditions are satisfied:

1. The right to relief arises out of the same act or transaction.

2. Common question of law or fact will arise in such a case.

When Defendants may be joined [Order I Rule3]

The test on which two or more persons are joined as defendants under O.I R.3 is same as,
when two or more persons have joined as plaintiffs under O.I R.1.
 65

For instance, An altercation takes place between A on one hand and B and C on the other. B and
C simultaneously assault A. A may join B and C as defendants in one suit for damages for assault
as the right to relief against them arose through same act and common question of fact and law
will be involved if separate suit were brought against B and C. When two or more defendants are
joined together and the test given under Rule 3 does not satisfy, then the joinder of such
defendants and their respective cause of actions, is known as multifariousness of suit.

Court may give judgement for or against one or more of the joint parties [O.I R.4]

This provision states that in cases provided under Rule 1 and Rule 3, the judgement may be given
for one or more plaintiffs, who can prove their claim and are entitled to relief, without amending
the plaint or prayer. Similarly, a judgement can be given against one or more of the defendants, as
are found liable and according to their respective liabilities.

Defendant need not be interested in all the relief claimed [O.I R. 5]

It shall not be necessary that every defendant shall be interested as to all the relief claimed in any
suit against him.

Joinder of parties liable on same contract [O.I R. 6]

This provision talks about the joinder of defendants in a suit where their liability arises based on a
contract including a bill of exchange, Hundi and Promissory Note. The liability in such a case may
arise either severally or jointly and severally.

Plaintiff is in doubt from whom redress is to be sought [O.I R. 7]

Where there is a doubt or uncertainty as to the person form whom the plaintiff can obtain
remedy i.e. who is the defendant, he can join two or, more defendant in order to determine as to
which of the defendants is liable, and to what extent he is liable.

Necessary and Proper Parties

A necessary party is a party to the constitution of the suit in whose absence no decree at all can be
passed and suit is liable to be dismissed for want of necessary party. On the other hand,
a proper party is one in whose presence enables the court to adjudicate the dispute
effectively and completely. A person who is not a party to the suit may be ordered to be
added as party defendant to the suit though no relief is claimed against him provided his
presence is necessary for complete and effectual decision of the question involved in the suit. Many
 66

a time, a party may not be a necessary party but, he may be proper party for adjudication
of questions involved in the suit and if that be so, the court can always ask the plaintiff to implead
such party.
A proper party is one in whose absence effective order can be passed but whose presence is
necessary for complete and final disposal of the case2. If the necessary party is not impleaded the
suit is liable to be dismissed. For instance, in a partition suit, all sharers are necessary party
and in a suit for eviction of a tenant, the sub-tenant would be a proper party.

Anil Kumar v. Shivnath

The Supreme Court observed that the object of rule of necessary party is to bring on record all
persons who are parties to the dispute relating to the subject matter so as to avoid multiplicity of
proceedings and inconvenience.

Kasturi v. Iyyamperumal

The Supreme Court in laid down following two test to determine the question whether a particular
party is a necessary party to a proceeding or not:

I. There must be a right to some relief against such party in respect of matter in issue.
II. It is not possible to pass an effective decree in his absence

Non-Joinder and Mis-Joinder of Parties

Where the person is a necessary or proper party to the suit and he has not been joined as a party
then it is a case of non-joinder of parties. If two or more persons are joined as a party to the suit in
contravention of Order I Rule 1 and 3 and where they are neither necessary party nor proper party
then it is a case of mis-joinder of parties.

Effect of Non-Joinder and Mis-Joinder:

Order I Rule 9 lays down general rule for non- joinder and mis-joinder of parties. It lays
dwon that suit cannot be defeated only on the ground of non-joinder and mis-joinder of parties.
However, Proviso to Rule 9 states that this rule is not applicable in case of non-joinder of necessary
party. Therefore, it means that if a necessary party has not been joined in the suit then the suit can
be defeated. In other words it can alos be said that joinder of necessary party is very much essential
for the suit.

Similarly, Sections 99 and 99 A of the Code also provides that no decree shall be reversed,
substantially varied or remanded in appeal on account of any mis-joinder or non-joinder of
 67

parties. Decree can be so reversed if- (i) it affects merits of the case, or (ii) it affects
jurisdiction of the court.

But non-joinder of necessary party is a serious defect and would not be covered under Section 99.

Objection as to non-joinder and mis-joinder:

Order I Rule 13 provides for two kinds of objections as to non-joinder and mis-joinder of
parties. It provides that:

a) All objections on the ground of non-joinder and mis-joinder of parties shall be taken at the
earliest possible opportunity; and

b) In all cases, where issues are settled, at or before such settlement, unless the ground of objection
has subsequently arisen

c) Any such objection not so taken shall be deemed to have been waived.

Addepalli Venkata Laxmi v. Ayinampudi Narasimha Rao,

the court said that issue of non-joinder of necessary party cannot be raised for the first time in
appeal

Conclusion

‘Parties’ is one of the essential of the suit. There must be at least two parties in every suit, namely,
the plaintiff and the defendant. However, there may be more than one plaintiff, and defendant.
 68

9. Explain the different modes of service of Summons. (2)

Introduction

When a suit is filed against the defendant for certain relief, the defendant has the right to assert his
side of the story. This is done following the doctrine of “AUDI ALTERAM PARTEM” which
means hearing both sides equally. The defendant must be notified when a lawsuit has been filed
against him and he has the right to defend himself. In law, summons refers to the notification sent
by the competent court to the defendant. The provision related to the summons is given in Section
27-32 and Order V of CPC.

Meaning

When the plaintiff files a suit, the defendant has to be informed that the suit has been filed against
him, and that he is required to appear in the court to defend it. The intimation which is sent to the
defendant by the court is technically known as "summons".

Dictionary meaning: "A summons is a document issued from the office of a court of justice, calling
upon the per- son to whom it is directed to attend before a judge or officer of the court for a certain
purpose.”

Order V Rule 1: Summons

When a suit has been duly instituted, a summons may be issued to the defendant to appear and
answer the claim and to file the written statement of his defence, if any, within thirty days from
the date of service of summons on that defendant.

Mode of service of summons: Order V Rules 9-30

The Code prescribes five principal modes of serving a summons to a defendant:

(1) Personal or direct service: Rules 10-16, 18

Rules 10 to 16 and 18 deal with personal or direct service of summons upon the defendant. This is
an ordinary mode of service of summons.

Here the following principles must be remembered:

(i) Wherever it is practicable, the summons must be served to the defendant in person or to his
authorised agent.
 69

(ii) Where the defendant is absent from his residence at the time of service of summons and there
is no likelihood of him being found at his residence within a reasonable time and he has no
authorised agent, the summons may be served on any adult male or female member of the
defendant's family residing with him. A servant, however, cannot be said to be a family member.

(iii) In a suit relating to any business or work against a person, not residing within the territorial
jurisdiction of the court issuing the summons, it may be served to the manager or agent carrying
on such business or work.

(iv) In a suit for immovable property, if the service of summons cannot be made on the defendant
personally and the defend- ant has no authorised agent, the service may be made on any agent of
the defendant in charge of the property.

(v) Where there are two or more defendants, service of summons should be made on each
defendant.

(2) Service by court: Rule 9

Summons to defendant residing within the jurisdiction of the court shall be served through court
officer or approved courier service. Summons can also be served by registered post, speed post,
acknowl- edgment due (RPAD), courier service, fax, message, e-mail service or by any other
permissible means of transmission. Where the defend- ant is residing outside the jurisdiction of
the court, the summons shall be served through an officer of the court within whose jurisdiction
the defendant resides. The court shall treat refusal of acceptance as a valid service. Where
summons is properly addressed, prepaid and duly sent by registered post acknowledgment due
(RPAD) there will be a presumption of valid service of summons even in the absence of an
acknowledgement slip.

Salem Advocate Bar Association v. Union of India

Though there can be no objection in giving an opportunity to the plaintiff to serve summons on
the defendant, there should be sufficient safeguards to avoid false report of service of summons.
High Courts should make appropriate rules or issue practice directions to ensure that the provisions
are properly implemented and there is no abuse of process of law.

(3) Service by plaintiff: Rule 9-A

The court may also permit service of summons by the plaintiff in addition to service of summons
by the court.
 70

(4) Substituted service: Rules 17, 19-20

"Substituted service" means the service of summons by a mode which is substituted for the
ordinary mode of service of summons.

There are two modes of substituted service. They are:

(a)
(i) where the defendant or his agent refuses to sign the acknowledgment; or

(ii) where the serving officer, after due and reasonable diligence, cannot find the defendant who is
absent from his residence at the time of service of summons and there is no likelihood of him being
found at his residence within a reasonable time and there is no authorised agent nor any other
person on whom service can be made, the service of summons can be made by affixing a copy on
the outer door or some other conspicuous part of the house in which the defendant ordinarily
resides or carries on business or personally works for gain. The serving officer shall then return
the original to the court from which it was issued with a report endorsed thereon stating the fact
about affixing the copy, the circumstances under which he did so, and the name and address of the
person, if any, by whom the house was identified and in whose presence the copy was affixed. 158
If the court is satisfied, either on the affidavit of the serving officer or on his examination on oath,
that the summons has been duly served, it may either declare that the summons has been duly
served or may make further enquiry in the matter as it thinks fit.

Parasurama Odayar v. Appadurai Chetty

Thus, in the second mode of service of summons as provided by Rule 17, the service is effected
without an order of the court by affixing a copy of the summons on the house of the defendant and
therefore the declaration by the court about the due service of the summons is essential.

State of J&K v. Haji Wali Mohammed

If the provisions of Rule 19 have not been complied with, the service of summons cannot be said
to be in accordance with law.

(b) Where the court is satisfied that there is reason to believe that the defendant avoids service or
for any other reason the sum- mons cannot be served in the ordinary way, the service may be
effected in the following manner:
 71

(i) by affixing a copy of the summons in some conspicuous place in the courthouse; and also upon
some conspicuous part of the house in which the defendant is known to have last resided, carried
on business or personally worked for gain; or

(ii) in such manner as the court thinks fit,

Yallawwa v. Shantavva

It, however, must be remembered that this is not a regular mode of service and hence, it should not
normally be allowed and can be ef- fected only as a last resort.

Cohen v. Nursing Dass,

it was stated, "It is true that you may go to a man's house and not find him, but that is not attempting
to find him. You should go to his house, make enquiries and, if necessary, follow him. You should
make enquiries to find out when he is likely to be at home, and go to the house at a time when he
can be found. Before service like this can be effected it must be shown that proper efforts have
been made to find out when and where the defendant is likely to be found-not as seems to be done
in this country, to go to his house in a perfunctory way, and because he has not been found there,
to affix a copy of the summons on the outer door of his house."

Sunil Poddar v. Union Bank of India

Where the court orders service by an advertisement in a newspaper, the newspaper should be a
daily newspaper circulating in the locality in which the defendant is last known to have actually or
voluntarily resided, carried on business or personally worked for gain. Such service is an effective
service, even if the defendant is not the subscriber of the newspaper or is not reading it.

Shanmukhi v. Venkatarami Reddy

Under Rule 20, the service of summons is effected by the order of the court only after the court is
satisfied that the defendant avoids service of summons or it cannot be served in the ordinary way.
Such satisfaction must be recorded by the court in writing. Substituted service is as effective as
personal service.

Chockalingam Chettiar v. Rajarathnam

The court must fix a time for the appearance of the defendant and give him a reasonable time to
appear before the court.
 72

(5) Service by post

When an acknowledgment purporting to be signed by the defendant or his agent is received by the
court, or the defendant or his agent refused to take delivery of summons when tendered to him, the
court issuing the summons shall declare that the summons had been duly served on the defendant.
The same principle applies in a case where the summons was properly addressed, prepaid and duly
sent by registered post, acknowledgment due; and the acknowledgment is lost or not received by
the court within thirty days from the date of issue of the summons.

Mariammal v. Lakshmanan

Where the summons sent by registered post is returned with an endorsement "refused", the burden
is on the defendant to prove that the endorsement is false.

Conclusion

Order 5 of the civil procedure code deals with Summons. Order 5 and its rules provide the
procedure to be followed while serving the summons. Summons provides an opportunity for the
defendant to defend himself. The mode of serving the summon, procedure after refusal to summon,
contents of summon all this has been provided under Order V.
 73

10.Elucidate the essential contents of a written statement.

Introduction

A written statement ordinarily means a reply to the plaint filed by the plaintiff. It is the pleading
of the defendant. Order 8 of the Code of Civil Procedure, 1908 (CPC) contains provisions in
relation to written statement.

Meaning

a written statement is a formal legal document filed by the defendant in response to a plaintiff’s
complaint or petition. A written statement is the statement of the defendant in his defence in which
he either admits the claims or denies the facts alleged by plant leaf in his plaint. The defendant can
State New facts of the case and legal objections against the claim asked by the plaintiff. Written
Statement is a Document in which the Defendant mentions his/her side of facts of the case and
mentions his defense to the Plaint.

Rule 1: Written statement

The defendant shall, within thirty days from the date of service of summons on him, present a
written statement of his defence:

[PROVIDED that where the defendant fails to file the written statement within the said period of
thirty days, he shall be allowed to file the written statement on such other day, as may be specified
by the Court, for reasons to be recorded in writing and on payment of such costs us the Court
deems fit, but which shall not be later than one hundred twenty days from the date of service of
summons and on expiry of one hundred twenty days from the date of service of summons, the
defendant shall forfeit the right to file the written statement and the Court shall not allow the
written statement to be taken on record.]

Rule 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.
 74

[(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.]

Rule 2. New facts must be specially pleaded

The defendant must raise by his pleading all matters which show the suit not to be maintainable,
or that the transaction is either void or voidable in point of law, and all such grounds of defence
as, 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, as, for instance. fraud, limitation, release, payment, performance, or
facts showing illegality.

Rule 3. Denial to be specific

It shall not be sufficient for a defendant in his written statement to deny generally the grounds
alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of
which he does not admit the truth, except damages.

Rule 3A: Denial by the defendant in suits before the Commercial Division of the High Court
or the Commercial Court

(1) Denial shall be in the manner provided in sub-rules (2), (3), (4) and (5) of this Rule

(2) The defendant in his written statement shall state which of the allegations in the particulars of
plaint he denies, which allegations he is unable to admit or deny, but which he requires the plaintiff
to prove, and which allegations he admits.

(3) Where the defendant denies an allegation of fact in a plaint, he must state his reasons for doing
so and if he intends to put forward a different version of events from that given by the plaintiff, he
must state his own version.

(4) If the defendant disputes the jurisdiction of the Court he must state the reasons for doing so,
and if he is able, give his own statement as to which Court ought to have jurisdiction.
 75

(5) If the defendant disputes the plaintiff's valuation of the suit, he must state his reasons for doing
so, and if he is able, give his own statement of the value of the suit.]

Rule 4. Evasive denial

where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer
the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be
sufficient to deny that he received that particular amount, but he must deny that he received that
sum or any part thereof, or else set out how much he received. And if an allegation is made with
diverse circumstances, it shall not be sufficient to deny it along with those circumstances.

Rule 5. Specific denial

Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or
stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as
against a person under disability:

Rule 6: Particulars of set off to be given in written statement

Set off means the adjusting one debt against the another. It is the Legal recovery of sum of money
pending by the defendant towards plaintiff

Rule 6A: Counter claim by defendant

A defendant in a suit may, set up, by way of counter-claim against the claim of the plaintiff, any
right or claim in respect of a cause of action accruing to the defendant against the plaintiff either
before or after the filing of the suit but before the defendant has delivered his defence or before
the time limited for delivering his defence has expired, whether such counter claim is in the nature
of a claim for damages or not.

Rule 6B: Counter claim to be stated

Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he
shall, in his written statement, state specifically that he does so by way of counter claim.

Rule 6C: Exclusion of counter claim

Where a defendant sets up a counter claim and the plaintiff contend that the claim thereby raised
ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may,
at any time before issues are settled in relation to the counter claim, apply to the court for an order
 76

that such counter-claim may be excluded, and the court may, on the hearing of such application
make such order as it thinks fit.

Rule 6D: Effect of discontinuance of suit

If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed,
discontinued or dismissed, the counter-claim may nevertheless be proceeded with.

Rule 6E: Default of plaintiff to reply to counter-claim

If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the
court may pronounce judgment against the plaintiff in relation to the counter claim made against
him, or make such order in relation to the counter-claim as it thinks fit.

Rule 6F: Relief to defendant where counter-claim succeeds

Where in any suit a set-off or counter-claim is established as a defence against the plaintiff's claim,
and any balance is found due to the plaintiff or the defendant, as the case may be, the court may
give judgment to the party entitled to such balance.

Rule 6G: Rules relating to written statement to apply

The rules relating to a written statement by a defendant shall apply to a written statement filed in
answer to a counter claim.

Rule 7: Defence or set-off founded on separate grounds

Where the defendant relies upon several distinct grounds of defence or set-off for counter-claim]
founded upon separate and distinct facts, they shall be stated, as far as may be, separately and
distinctly.

Rule 8: New ground of defence

Any ground of defence which has arisen after the institution of the suit or the presentation of a
written statement claiming a set off [or counter-claim] may be raised by the defendant or plaintiff,
as the case may be, in his written statement.
 77

Rule 19: Subsequent pleadings

No pleading subsequent to the written statement of a defendant other than by way of defence to
set-off or counter-claim shall be presented except by the leave of the Court and upon such terms
as the Court thinks fit, but the Court may at any time require a written statement or additional
written statement from any of the parties and fix a time of not more than thirty days for presenting
the same.

Rule 10: Procedure when party fails to present written statement called for by Court

Where any party from whom a written statement is required under rule 1 or rule 9 fails to present
the same within the time permitted or fixed by the Court, as the case may be, the Court shall
pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on
the pronouncement of such judgment a decree shall be drawn up:]

Kailash v. Nankhu

the Supreme Court held that the proviso to Rule 1 of Order 8 of CPC is directory and permissive
and not mandatory and imperative.

Salem Advocate Bar Assn. V. Union of India

the Supreme Court clarified that under Rule 10 of CPC, the court has wide powers to ‘make such
order in relation to the suit as it thinks fit.’ The order extending the time to file a written statement
cannot be made routinely. The time can be extended only in exceptionally hard cases.

Conclusion

Written statement is the statement or defence of the defendant by which he either admits the claims
of the plaintiff or denies the allegations or averments made by the plaintiff in his plaint.
 78

6 MARKS

1. Written statement - Defences available to the defendant. (2)

Introduction:
First of all, we should know that what is written statement. Actually, it is a pleading of the
defendant in the answer of the plaint led by the plaintiff against him. It is a reply statement of the
defendant in a suit specically denying the allegations made against him by the plaintiff in his
plaint. The provision regarding the written statement has provided in the Code of Civil
Procedure, 1908.

Meaning:
The expression Written Statement has not been dened in this code. It is a term of specic meaning
ordinarily signifying a reply to the plaint led by the plainti. In other words, it is the pleading of the
defendant wherein he deals with the material fact alleged by the plainti in his plaint and also states
any new fact in his favour or takes legal objections against the claim of the plaintiff.

Written Statement: order 8

Who may be written statement:
A written statement may be filed by the defendant or by his duly authorized agent. In the case of
more than one defendants, the common written statement led by them must be signed by all of
them. But it is sucient if it is veried by one of them who is aware of the facts of the case and is in
a position to le an adavit. But a written statement led by one defendant does not bind other
defendants.

Time limit for ling written statement:

A written statement should be led within thirty days from the service of the summons on him. The
said period, however, can be extended up to ninety days,(Rule -1). A defendant should present a
written statement of his defence in the said period.

Defences in written statement:

In written statement defendant can specically deny the allegations made in the plaint by the plainti
against him. Besides this, he also can claim to set-o any sums of money payable by the plainti to
him as a counter defence (Order 8 Rule 6). Further, if the defendant has any claim against the
plainti relating to any matter in the issue raised in the plaint, then he can separately le a counter-
claim along with his written statement. It is provided in Order 8 Rule 6A to 6G of the code.
 79

Particulars: Rules 1-5 and 7-10

Drafting a written statement is an art so it should be drafted carefully and artistically. Before
proceeding to draft a written statement it is absolutely necessary for the defendant to examine the
plaint carefully.

Special rules of defence:

Rules 2 to 5 and 7 to 10 deal with special points regarding the ling of a written statement:
1. New facts, such as the suit is not maintainable, or that the transaction is either void or
voidable in law, and all such grounds of defence as, if not raised, would take the plainti by
surprise, or would raise issues of fact not arising out of the plaint, such as fraud, limitation,
release, payment, performance or facts showing illegality, etc. must be raised. (Order 8
Rule 2)
2. The denial must be specie. It is not succinct for a defendant in his written statement to deny
generally the grounds alleged by the plainti, but he must deal specially with each allegation
of fact which he does not admit, except damages.
3. The denial should not be vague or evasive. Where a defendant wants to deny any allegation
of fact in the plaint, he must do so clearly, specially and explicitly and not evasively or
generally.
4. Where every allegation of fact in the plaint, if not denied specically or by necessary
implication, or stated to be not admitted except as against a person under disability. The
court may, however, require proof of any such fact otherwise than by such admission.
5. Where the defendant relies upon several distinct grounds of defence or set-o or
counterclaim founded upon separate and distinct facts, they should be stated separately and
distinctly.
6. Any new ground of defense which has arisen after the institution of the suit is a presentation
of a written statement claiming a set-o or counterclaim may be raised by the defendant or
plainti in his written statement as the case may be.
7. If the defendant fails to present his written statement within the time permitted or relaxed
by the court, the court will pronounce the judgment against him or pass such order in
relation to the suit as it thinks t and a decree will be drawn up according to the said
judgment.
8. No pleading after the written statement of the defendant other than by way of defense to
set-o or counterclaim can be led.
 80

Set off (Order VIII, Rule 6]

Definition:
Where in a suit by the plaintiff for recovery of money and the defendant finds that he also has a
claim of some amount against the plaintiff what he do is he can claim a set-off in respect of the
said amount. This right of the defendant to claim set off has been recognized under Order 8, Rule
6 of the Code.

Essential Conditions:
I. A defendant may claim a set-off, if:
II. The suit is for the Recovery of money;
III. The sum of money must be ascertained;
IV. Such sum must be legally recoverable;
V. It must be recoverable by the defendant or by all the defendants, if not more than one;
VI. It must be recoverable by the defendant from the plaintiff(s);
VII. It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
VIII. Both the parties must fill in the defendant's claim to set-off, the same character as they fill
in the plaintiff's

Effects:
When a defendant claims set-off, he is put in the position of the plaintiff as regards the amount
claimed by him. Where the plaintiff doesn't appear and his suit is dismissed or he withdraws, it
does not affect the claim for a set-off by the defendant and a decree may be passed in his favor if
he is able to prove his claim.

Illustrations:
X sues Y on a bill of exchange. Y alleges that X has wrongfully neglected to insure Y's goods
and is liable to him in compensation which he claims to set-off. The amount not being
ascertained cannot be set-off.
P sues Q on a bill of exchange for Rs. 1500. Q holds a judgment against P for Rs. 1,000. The two
claims being both definite, it may be set-off.

Types of Set Off

Set-off is of two kinds viz., legal set-off and equitable set-off. Rule 6 speaks of legal set-off only.
In contrast to legal set-off, an equitable set-of, can be claimed for unascertained money but it
must arise from the same transaction. For example, where a servant sues his master for recovery
 81

of amount of salary, the master can claim set-off for loss sustained by him due to negligence of
servant since it arises out of same relationship.

Legal Set Off

It is apparent from a reading of the above provisions that in order to constitute legal set-off, the
following conditions must be fulfilled, viz.,

a. The suit must be for recovery of money.

b. The defendant must claim an ascertained sum of money. A sum of money due in respect
of a disputed transaction cannot constitute an ascertained sum.
c. That ascertained sum must be legally recoverable from the plaintiff, i.e., it is not barred
by the law of limitation.
d. The plaintiff's claim and the set-off must be claimed in the same character. The amount
must be recoverable by the defendant and if there are more than one defendant, then by all
the defendants. Again, the amount must be recoverable by the defendant from the plaintiff
and if there are more than one plaintiff, then from all the plaintiffs.
e. The set-off should be within the pecuniary jurisdiction of the Court.

Equitable set-off
Court of Equity in England allowed set-off when cross-demands arose out of the same transaction,
even if the money claimed by way of set-off was an unascertained sum of money. The Common
Law Courts refused to take notice of equitable claims for they were not ascertained sums. The
Courts of Equity, however, held that it would be inequitable to drive the defendant to a separate
cross-suit and that he might be allowed to plead a set-off though the amount might be
unascertained. Such a set-off is called an equitable set-off.

In India, the distinction between legal and equitable set-off remains. The provisions as to legal set-
off are contained in Order VIII, Rule 6, C.P.C. The same has now been enlarged by insertion of
Rule 6-A with regard to counter-claim by the defendant. So far as equitable set-off is concerned it
is provided in Order XX, Rule 19(3), C.P.C., which states that:
The provisions of this rule (relating to a decree for set-off or counter-claim and an appeal
therefrom) shall apply whether the set-off is admissible under Rule 6 of Order VIII or otherwise.

The provisions of Order VIII, Rule 6, and Rule 6-A are, therefore, not exhaustive because apart
from a legal set-off an equitable set-off can be pleaded independently of the specific provision of
the Code.
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Counter Claim
Rule 6A to 6G of Order 8 deals with counter-claim. It is claim made by the defendant in a suit
against the plaintiff. It is a claim independent of and separable from plaintiff's claim which can be
enforced by a cross section. Counter-claim can be set up in respect of action accruing to the
defendant either before or after the filing of the suit but before the defendant has delivered his
defense or before the time fixed for delivery of his defense has expired.

Such claim should not exceed the pecuniary limits of the jurisdiction of the concerned court. The
counter-claim is to be treated as a plaint and the plaintiff can file a written statement in answer to
it. Counter-claim can be filed after filing of written statement.

In Smt. Shanti Rani Das v. Dinesh Roy it has been held that the right to file a counter claim is
referable to the date of accrual of cause of action. If the cause of and such action had arisen before
or after filing of the suit, cause of action continued up to the date of filing of the suit and such
cause of action continued up to the date of filing written statement or extended date of filing
plaintiff statement, then such counter claim can be filed even after filing the written statement.

Who may file counterclaim?

Normally, it is the defendant who may file a counterclaim against the plaintiff. But incidentally
and along with the plaintiff, the defendant may also claim relief against the co-defendants in the
suit. But a counterclaim solely against co-defendants is not maintainable.

When counterclaim may be set up?

A counterclaim may be set up by a defendant against a plaintiff in respect of cause of action
accruing either before or after filing of the suit, provided such claim is not barred by limitation.

Effect of counterclaim Such counterclaim has the effect of a cross-suit and the court can pronounce
a final judgment both on the original claim and the counterclaim. The counterclaim of the
defendant will be treated as a plaint and the plaintiff has a right to file a written statement in answer
to the counterclaim of the defendant.
The effect of the counterclaim is that even if the suit of the plaintiff is stayed, discontinued,
dismissed or withdrawn, the counterclaim will be decided on merits and the defendant will have a
right to get a decree for a counterclaim as claimed in the written statement. If the plaintiff does not
file any reply to the counterclaim made by the defendant, the court may pronounce the judgment
against the plaintiff in relation to the counterclaim made against him or make such order in relation
to the counterclaim as it thinks fit.268 The counterclaim shall be treated as a plaint and will be
governed by the rules applicable to plaints. Similarly, a reply filed in answer to a counterclaim
shall be treated as a written statement and governed by rules applicable to written statements.
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Set Off & Counter Claim

The distinction between set-off and counter-claim may now be noted:

• Set-off is a statutory defence to a plaintiff's action, whereas a counterclaim is substantially
a cross-action.
• Set-off must be for an ascertained sum or must arise out of the same transaction as the
plaintiff's claim. A counter-claim need not arise out of the same transaction.
• Set-off is a statutory ground of defence and has to be pleaded in the written statement. It
can be sued as a shield and not as a sword. Counter-claim, on the other hand, does not
afford any defence to the plaintiff's claim. It is a weapon of offence which enables the
defendant to enforce his claim against the plaintiff as effectually as in an independent
action. It is a sort of cross-action.
• If the statute of limitation is pleaded to a defence of set-off, the plaintiff in order to establish
his plea has to prove that set-off was barred when the plaintiff commenced the action. It is
not enough to prove that it was barred at the time when it was pleaded. In the case of a
counter-claim, it is enough for the plaintiff to prove that the counter-claim was barred when
it was pleaded.
• An equitable set-off is a claim by the defendant in defence, which generally cannot exceed
the plaintiff's claim. A counter-claim the defendant may, however, exceed the plaintiff's
claim, being in nature of the cross action. Under the provision rule 6-F of Order 6, if in any
suit a set off or counter claim is established as a defence against plaintiffs claim and any
balance is found due to the defendant as the case may be the court may give judgment to
the party entitled to such balance.

Conclusion
Written statement is the statement or defence of the defendant by which he either admits the claims
of the plaintiff or denies the allegations or averments made by the plaintiff in his plaint.
 84

2. Set-off and counter claim.

Introduction

Plaintiff is the aggrieved party who files suit to claim relief from the court and to accomplish the
same, numerous rights and opportunities are granted to the plaintiff. Order VIII Rule 6 and Order
VIII Rule 6A to 6G deals with Set off and counter claim.

Definition

“Set off means” means a claim set up against another. It is a cross-claim which partly offsets the
original clam. It is an extinction of debts of which two persons are reciprocally debtors to one
another by the credits of which they are reciprocally creditors to one another. Where there are
mutual debts between the plaintiff and the defendant, one debt may be settled against another.

“Counter claim may be defined as “ a claim made by the defendant in a suit against the plaintiff.
It is a claim independent of, and separable from, the plaintiff’s claim which can be enforced by a
cross-action. It is a cause of action in favour of the defendant against the plaintiff.

Setoff

Order 8 rule 6: Particulars of set off to be given in written statement

Set off means the adjusting one debt against the another. It is the Legal recovery of sum of money
pending by the defendant towards plaintiff

Essentials to claim Setoff

(i) The suit must be for the recovery of money

(ii) The sum of money must be ascertained
(iii) Such sum must be legally recoverable
(iv) It must be recoverable by the defendant or by all the defendants, if more than one
(v) It must be recoverable by the defendant from the plaintiff or from all the plaintiffs, if more than
one
(vi) It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
(vii) Both the parties must fill, in the defendant's claim to setoff, the same character as they fill in
the plaintiff's suit
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Types of setoff

1. Legal setoff

Setoff dealt under order 8 rule 6 is the legal setoff

2. Equitable Setoff

It is based on the concept of justice, equity and fairness and can be used when the case does not
meet the requirements of Order VIII Rule 6.
It came into practice in 1729 in the English court.

Cases

UOI v. Karanchand

It was held that setoff is a right of a debt to reduce his part of the debt by the amount which the
creditor owes to him.

Yusuf v. Muhammad & others

The parties had dispute in a commercial Matter and filed suit. Even after limitation period, the
defendant didn't file written statement. He filed petition before Supreme court to extend the
limitation period. Then after 3 years he filed written statement. The court held that it is not Bound
to accept it.

Christian broadcasting Ltd v. CBN News pvt ltd

Defendant infringement the trademark right of the plaintiff. He didn't file written statement within
the limitation period. The limitation is directory, not mandatory. So the extension of the limitation
period is a discretionary power of the court.

Rajendra v. Shantha Ben

During the covid period, defendant couldn't file written statement. Court extended the limitation
period due to the exceptional situation.

Counter claim
Order 8 rules 6A to 6G deals with Counter claim. "Counterclaim" may be defined as "a claim made
by the defendant in a suit against the plaintiff”.
 86

Rule 6A: Counter claim by defendant

A defendant in a suit may, set up, by way of counter-claim against the claim of the plaintiff, any
right or claim in respect of a cause of action accruing to the defendant against the plaintiff either
before or after the filing of the suit but before the defendant has delivered his defence or before
the time limited for delivering his defence has expired, whether such counter claim is in the nature
of a claim for damages or not.

Rule 6B: Counter claim to be stated

Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he
shall, in his written statement, state specifically that he does so by way of counter claim.

Rule 6C: Exclusion of counter claim

Where a defendant sets up a counter claim and the plaintiff contend that the claim thereby raised
ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may,
at any time before issues are settled in relation to the counter claim, apply to the court for an order
that such counter-claim may be excluded, and the court may, on the hearing of such application
make such order as it thinks fit.

Rule 6D: Effect of discontinuance of suit

If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed,
discontinued or dismissed, the counter-claim may nevertheless be proceeded with.

Rule 6E: Default of plaintiff to reply to counter-claim

If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant, the
court may pronounce judgment against the plaintiff in relation to the counter claim made against
him, or make such order in relation to the counter-claim as it thinks fit.
Rule 6F: Relief to defendant where counter-claim succeeds

Where in any suit a set-off or counter-claim is established as a defence against the plaintiff's claim,
and any balance is found due to the plaintiff or the defendant, as the case may be, the court may
give judgment to the party entitled to such balance.

Rule 6G: Rules relating to written statement to apply

The rules relating to a written statement by a defendant shall apply to a written statement filed in
answer to a counter claim.
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Conclusion

Set-off and counter claim acts as a shield and a sword respectively. here set-off acts like a shield
which acquaints the defendant with a statutory right to set off the amount pending towards him by
the plaintiff, counter claim acts like a sword in the form of cross-action.

3. Write a note on misjoinder of parties.

Introduction

The civil cases, start with the institution of the case by one party against the another party and the
competent court decides the rights and liabilities of the parties. Order 1 of the Code of Civil
Procedure, 1908 deals with the the parties to the suit and also contains provisions for addition,
deletion and substitution of parties, joinder, non-joinder and misjoinder of parties and objections
to misjoinder and non-joinder.

MISJOINDER:

The non-necessary parties or the misjoinder are parties of the party which are added mistakenly or
irrelevantly for irrelevant purposes and therefore there is no relief can be made. The presence of
the necessary party/ parties are vital and important to pass any decree between the parties.

When any party or parties are added mistakenly to the suit under code of civil procedure, 1908 are
terms as misjoinder. And the party which was added mistakenly to the suit or misjoinder has
nothing to do with the suit then in that condition the party added mistakenly are known as
misjoinder. In addition, in the case where the misjoinder has joined the suit, the court should not
dismiss the suit instead, should or may order any decree as the order or decree should not bind the
misjoinder and the claim or relief should be for only the necessary party only. As there is no need
or any possibility to dismiss the suit on the grounds of misjoinder of the party as it does not affect
any kind of interest of the parties to the suit.

Further, in addition to the above, the code of civil procedure deals with misjoinder under the
provision of order 1 rule 3, as however, the necessary party are important for any decree or
judgement pass by the court as the concept of misjoinder and nonjoinder in cpc is always dependent
upon the parties of the suit.
 88

The joinder or incorporation of any person as a party to a suit, opposite to the provisions of the
Code is known to be a misjoinder. Grounds for a court ruling that there is a misjoinder incorporate
that:

• The parties to the suit do not have the same rights to a judgment.
• They have a conflict of interests.
• The situations in each allegation must be unique or contradictory.
• Even for a bit, the defendants are not involved in the same transaction. In the case of a
criminal prosecution, the most usual cause for misjoinder is the defendants are found to be
involved in various claimed crimes or the charges are based on separate unique
transactions.
However, a misjoinder may be a misjoinder of plaintiffs or a misjoinder of a cause of action.

Misjoinder of Plaintiffs

Where two or more persons may have joined as Plaintiffs in one suit but the Right to Relied
claimed to exist in each plaintiff, does NOT come out of the same act or same transaction (or
series) and if separate suits were brought by each of the plaintiff, no common question of fact or
question of law may have arisen, there shall be a misjoinder of plaintiff.

Misjoinder of Defendants

In a similar way, where two or more persons may have joined as Defendants in one suit but the
Right to Relied claimed to exist in each defendant, does NOT come out of the same act or same
transaction (or series) and if separate suits were brought by each of the defendant, no common
question of fact or question of law may have arisen, there shall be a misjoinder of defendant.

The question of joinder of parties may arise either as regards the plaintiffs or as regards the
defendants. An Act may be done by a single individual and may adversely affect another
individual. In that case, the question of joinder of parties does not arise at all. The question of
joinder of parties arises only when an Act is done by two or more persons or it affects to two or
more persons. All persons may be joined in one suit as plaintiffs according the conditions required
under rule 1 of order 1. The conditions which are required to be fulfilled are that the right to relief
alleged to exist in each plaintiff arises out of the same act of transaction; and the case is such of a
character that, if such person brought separate suits, any common question of law or fact would
arise. On the other hand, a person can be joined as a defendant according to the provisions of rule
3 of order 1. The conditions to be required to be satisfied in the case of defendant are that the right
to relief alleged to exist against them arises out of the same act of transaction; and the case is of
such a character that, if separate suits were brought against such person, any common question of
law or fact would arise.
 89

Benares Bank Ltd. V. bhagwandas,

the full bench of the High Court of Allahbad laid down two tests for determining the questions
whether a particular party is necessary party to the proceedings:
1. There must be right to some relief against such party in respect of the matter involved in
the proceedings in question; and
2. It should not be possible to pass an effective decree in the absence of such a party.

Deputy Commr., Hardoi V. Rama Krishna

The above tests were described as true tests by Supreme Court in Rule 9 of order 1 lays down that
no suit shall be defeated by reason of misjoinder or non-joinder of parties. In such cases, the court
may deal with the matter in controversy as regards the rights and interests of the parties actually
before it. However, this rule does not apply to cases where there is a non-joinder of necessary
party.

If two or more persons are joined as plaintiffs or defendants in one suit in contravention of order
1, Rules 1 and 3 respectively and they are neither necessary nor proper parties, it is a case of
misjoinder of parties. On the other hand, where a person, who is necessary or proper party to a suit
has not been joined as a party to the suit, it is a case of non-joinder. The general rule is that a suit
cannot be dismissed only on the ground of non-joinder or misjoinder of parties.

There would be misjoinder of parties if person having a separate cause of action file a suit jointly. It
would not be in a case where a plaintiff files a suit against more than one person and a common
question of law or fact would arise if separate suits were filed. Where in a suit there are two or
more defendants and two or more cause of action, the suit will be bad for misjoinder of defendants
and cause of action, if different cause of action are joined against different defendants separately.
Such a misjoinder is technically called multifariousness.

As regards the non-joinder of parties, a distinction has been drawn between the non-joinder who
ought to have been joined as a party and the non-joinder of a person whose joinder is only a matter
of convenience or expediency. The court in various cases held that if the decree cannot be effective
without the absent parties, the suit is liable to be dismissed. In a particular case, where one of the
mortgagees instituted the suit on the mortgagee, it was held that this rule did not cure the defect,
as the matter was not a matter of procedure. Thus, suit was held to be not maintainable on the
ground that an effective decree giving discharge to the mortgagors could not be passed by reason
of the non-joinder of some of the mortgagees. In cases where the joinder of a person as a party is
only a matter of convenience the absent party may be added or the suit may be tried without him.
 90

Allahbad High Court in Maqsood Ali v. Zahid Ali

that except where there is a legal bar to the maintainability of a suit by reason, non-joinder of a
party, or where in his absence, the decree that may be passed might become infructuous or
inexecutable, the court cannot dismiss a suit for non-joinder of a person. When the question is such
that it can be decided between the parties to the suit, the court cannot decline to do so because the
third parties might be interested thereon. The plea of non-joinder must be raised at the earliest
opportunity and if the objection as to non-joinder as is not raised at an early stage, it is deemed to
have been waived.

Section 99 of the Code of Civil Procedure provides that no decree shall be reversed or substantially
valid, nor shall any case be remanded, in appeal on account of any misjoinder or non-joinder of
parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not
affecting the merits of the case or the jurisdiction of the court and, however, nothing in this section
shall apply to non-joinder of a necessary party. Where a relief is sought against a party without
impleading him as a party, the suit would be liable to be dismissed.

In case of non-joinder of parties, Rule 9 provides against the dismissal of suit. The only course
open to the court under such circumstances is formally to call upon the plaintiff to make his
election and confine the suit to one set of defendants. In case of non-joinder of the necessary party,
an opportunity should be given to the plaintiff to add the necessary party.

A suit is not to be dismissed only on the ground of non-joinder or misjoinder of parties. The Court
may allow the necessary parties to be joined, in at a later stage. The Court may in every suit deal
with the matter in controversy so far as regards the rights and interests of the parties actually before
it. In case of misjoinder or non-joinder of parties, Rule 9 provides against the dismissal of the suit.

MISJOINDER OF PARTIES AND ITS EFFECT

The joinder of any person as a party to a suit contrary to the provisions of the code is called
misjoinder. Misjoinder may be misjoinder of plaintiffs; misjoinder of defendants and misjoinder
of cause of actions.

Misjoinder of Plaintiffs

Where two or more persons may have been joined as plaintiffs in one suit but the right to relief
alleged alleged to exist in each plaintiff does not arise out of the same act or transaction (or series
of acts or transaction) and if separate suits were brought by each plaintiff no common question of
fact or law would have been arisen, there is misjoinder of plaintiffs. The objection on the ground
 91

of misjoinder of the plaintiffs, should be taken at the earliest possible opportunity; if not, it is be
deemed to have been waived

Misjoinder of defendents

Likewise, where two or more persons have been joined as defendants in one suit but the right to
relief alleged to exist against each defendant does not arise out of the same act or transaction (or
series of acts or transactions) and if separate suits were brought against each defendant, no common
question of fact or law would have arisen, there is misjoinder of defendants.

Misjoinder of cause of action

Misjoinder of causes of action may be coupled with the misjoinder of plaintiffs or misjoinder of
defendants. Thus, the subject may be considered under the following three heads-

Misjoinder of plaintiffs and cause of action

where in a suit there are two or more plaintiffs and two or more causes of action, the plaintiffs
should be jointly interested in all the causes of action. If the plaintiffs are not jointly interest in all
the cause of action, the case is one of misjoinder of plaintyiffs and cause of action. The objection
on the ground of misjoinder of plaintiffs and causes of action should be taken at the earliest
opportunity.

Misjoinder of defendant and causes of action : Multifariousness

Where in a suit, there are two or more defendants and two or more cause of action, the suit will be
bad for misjoinder of defendants and causes of action, if different causes of action are joined
against different defendants separately. Such a misjoinder is technically called multifariousness.
The objection on the ground of multifariousness should be taken at the earliest opportunity.

In a suit for recovery of loan advanced on an overdraft account, the joinder of a claim against the
agent on the ground that he had acted in excess of his authority and against the managing director
on the ground that he had approved of it would render the action multifarious.

In a case, where the plaintiff purchased the suit house in which two pesons were residing as tenants
separately and he brought a suit for eviction against both the defendant-tenents claiming different
relief against them. It was held that the suit was bad for multifariousness.
 92

Misjoinder of claims founded on several causes of actions

Order 2 of the code of Civil Procedure Code deals with the misjoinder of claims founded on several
claims. According to the rule, every suit must include the whole claim which the plaintiff is entitled
to make in respect of that cause of action.

The question whether or not there is misjoinder of parties has to be decided on the basis of the
averments made in the plaint and not reference either to the written statement or on the evidence
led by the parties.
Rule 9 expressly and unequivocally declares that no suit is liable to be dismissed by reason of
misjoinder of parties. In other words, misjoinder of parties is not fatal to the suit. It is mere
irregularity covered by sections 99 and 99-A of the Code. Hence the various high courts, on the
question of misjoinder of parties held that no decree shall be reversed or substantially varied, nor
shall a case be remanded in appeal inter alia on account of misjoinder of parties, not affecting the
merits of the case or the jurisdiction of the court. Where there is a misjoinder of parties, the name
of the plaintiff or the defendant who has been improperly joined may be struc out under r 10 and
the case may be proceed with.

patasibai V. Ratanlal,
an application for the correction of misdescription of the defendant (in the plaint) was allowed, the
correction could not be incorporated in the plaint. But, the misdescription did not mislead any
party. In fact, the written statement and the documents in appeal carried the correct name. it was
held that decree was valid.

Conclusion
Non-joinder or mis-joinder of parties is not fatal to the suit. Order 1, Rule 9 of the Code of Civil
Procedure lays down that no suit shall defeated by reason of the misjoinder or non-joinder of
parties, and the court may in every suit deal with the matters of controversy so far as the regards
the rights and interests of the parties actually before it.
 93

4. Counter claim. (4)

Refer 6 marks Qstn 2

5. Substitute service.

Refer 10 marks qstn 9

6. Joinder of parties. (2)

Refer 10 marks qstn 8

7. Rejection of plaint

Refer 10 marks qstns 4

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UNIT 3

10 MARKS

1. Explain consequences of appearance and non-appearance of parties in a suit. (2)

2. Explain the various modes of execution of decree. (2)
3. What are the 'issues' in suit? How issues be framed? (2)
4. What is an exparte decree? State the remedies available to the person against whom such
decree is passed. (2)
5. Define judgement and distinguish it with decree.
6. What is Decree? What are the differences between decree and order?
7. Explain the provisions of Civil Procedure Code relating to the discovery, inspection and
production of documents.
8. Explain the properties which are not liable for attachment and sale in an execution of a
decree.
9. State the powers of the court to amend or strike out issues.

6 MARKS
1. Affidavit.
2. Admissions. (3)
3. Difference between judgment and decree.
4. Adjornment (2)
5. Inter-pleader suit.
6. Appearance and non-appearance of parties.
7. Modes of execution.
8. Kinds of issues.
9. Decree
 95

10 MARKS

1. Explain consequences of appearance and non-appearance of parties in a

suit. (2)

Introduction

Every proceeding as far as possible must be carried on in the presence of parties as a general
principle of law. Order IX of the Code of Civil Procedure lays the laws regarding the appearance
of parties and what are the consequences of the non-appearance of parties.

Meaning

An ex parte decree is a decree passed in the absence of the defendant (in absenti). Where the
plaintiff appears and the defendant does not appear when the suit is called out for hearing and if
the defendant is duly served, the court may hear the suit ex parte and pass a decree against him.

Order IX: APPEARANCE OF PARTIES AND CONSEQUENCE OF NON-APPEARANCE

Rule 1: Parties to appear on day fixed in summons for defendant to appear and answer

On the day fixed in the summons for the defendant to appear and answer, the parties shall be in
attendance at the court house in person or by their respective pleaders, and the suit shall then be
heard unless the hearing is adjourned to a future day fixed by the court.

Rule 2: Dismissal of suit where summons not served in consequence of plaintiff's failure to pay
costs

Where on the day so fixed it is found that the summons has not been served upon the defendant in
consequence of the failure of the plaintiff to pay the court-fee or postal charges, if any, chargeable
for such service, or failure to present copies of the plaint as required by rule 9 of Order VII, the
Court may make an order that the suit be dismissed:

PROVIDED that no such order shall be made, if notwithstanding such failure, the defendant
attends in person or by agent when he is allowed to appear by agent on the day fixed for him to
appear and answer.
 96

Rule 3: Where neither party appears, suit to be dismissed

Where neither party appears when the suit is called on for hearing, the court may make an order
that the suit be dismissed.

Rule 4: Plaintiff may bring fresh suit or court may restore suit to file

Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation)
bring a fresh suit; or he may apply for an order to set the dismissal aside, and if he satisfies the
court that there was sufficient cause for [such failure as is referred to in rule 2), or for his non-
appearance, as the case may be, the court shall make an order setting aside the dismissal and shall
appoint a day for proceeding with the suit.

Rule 5: Dismissal of suit where plaintiff, after summons returned unserved, fails for [seven days]
to apply for fresh summons

(1) Where, after a summons has been issued to the defendant, or to one of several defendants, and
returned unserved, the plaintiff fails, for a period of [seven days] from the date of return made to
the court by the officer ordinarily certifying to the coun returns made by the serving officers, to
apply for the issue of a fresh summons, the court shall make an order that the suit be dismissed as
against such defendant, unless the plaintiff has within the said period satisfied the court that-

(a) he has failed after using his best endeavours to discover the residence of the defendant who has
not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time, in which case the court may extend
the time for making such application for such period

as it thinks fit.]

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit

Rule 6: Procedure when only plaintiff appears

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for
hearing, then-
 97

(a) When summons duly served-If it is proved that the summons was duly served, the court may
make an order that the suit be heard ex parte]

(b) When summons not duly served-If it is not proved that the summons was duly served, the court
shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time-If it is proved that the summons was served on the
defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the
summons, the court shall postpone the hearing of the suit to a future day to be fixed by the court,
and shall direct notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiff's default that the summons was not duly servel or was not
served in sufficient time, the court shall order the plaintiff to pay the costs occasioned by the
postponement.

Rule 7: Procedure where defendant appears on day of adjourned hearing and assigns good cause
for previous non-appearance

Where the court has adjourned the hearing of the suit ex parte, and the defendant at or before such
hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms
as the court directs as to costs or otherwise be heard in answer to the suit as if he had appeared on
the day fixed for his appearance

Rule 8: Procedure where defendant only appears

Where the defendant appears and the plaintiff does not appear when the suit is called on for
hearing, the court shall make an order that the suit be dismissed, unless the defendant admits the
claim, or part thereof, in which case the court shall pass a decree against the defendant upon such
admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it
relates to the remainder

Rule 9: Decree against plaintiff by default bars fresh suit

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from
bringing a fresh suit in respect of the same cause cause of action. But he may apply for an order to
set the dismissal aside, and if he satisfies the court that there was sufficient cause for his non-
appearance when the suit was called on for hearing, the court shall make an order setting aside the
dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit.
 98

(2) No order shall be made under this rule unless notice of the application has been served on the
opposite party.

Rule 10: Procedure in case of non-attendance of one or more of several plaintiffs

Where there are more plaintiffs than one, and one or more of them appear, and the others do not
appear, the court may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to
proceed in the same way as if all the plaintiffs had appeared, or make such order as it thinks fit.

Rule 11: Procedure in case of non-attendance of one or more of several defendants

Where there are more defendants than one, and one or more of them appear, and the others do not
appear, the suit shall proceed, and the court shall, at the time of pronouncing judgment, make such
order as it thinks fit with respect to the defendants who do not appear.

Rule 12: Consequence of non-attendance, without sufficient cause shown, of party ordered to
appear in person

Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in
person, or show sufficient cause to the satisfaction of the court for failing so to appear, he shall be
subject to all he provisions of the foregoing rules applicable to plaintiffs and defendants,
respectively, who do not appear.

Rule 13: Setting aside decree ex parte against defendants

In any case in which a decree is passed ex parte against a defendant, he may apply to the court by
which the decree was passed for an order to set it aside; and if he satisfies the court that the
summons was not duly served, or that he was prevented by any sufficient cause from appearing
when the suit was called on for hearing, the court shall make an order setting aside the decree as
against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:

PROVIDED that where the decree is of such a nature that it cannot be set aside as against such
defendant only it may be set aside as against all or any of the other defendants also:

[PROVIDED FURTHER that no court shall set aside a decree passed ex parte merely on the
ground that there has been an irregularity in the service of summons, if it is satisfied that the
defendant had notice of the date of hearing and had sufficient time to appear and answer the
plaintiff's claim.
 99

Rule 14: No decree to be set aside without notice to opposite party

No decree shall be set aside on any such application as aforesaid unless notice thereof has been
served on the opposite party.

Chhotalal v. Ambalal

the High Court of Bombay observed that when a party arrives late and finds that his suit or
application is dismissed, he is entitled to have his suit or application restored on payment of costs.

Venutai v. Sadashiv

Where there are two or more defendants and one or more of them appear and the others do not
appear, the suit will proceed and at the time of pronouncement of the judgment, the court may
make such order as to the absent defendants as it thinks fit. In such a case, a decree may be
contested as one against some of the defendants and ex parte against the rest.

Sultan Husain v. Satnarain Lal

The defendant against whom ex parte decree has been passed may apply for setting it aside. Where
there are two or more defendants, any one or more of them may also make such application.

Conclusion

The appearance and non-appearance of parties have an effect on the case and whether it will be
carried on for the next hearing, dismissed or an ex-parte decree will be given. When none of the
parties appears then the suit can be dismissed by the court. The suit is carried on for the next
hearing only when both parties appear before the court.
 100

2. Explain the various modes of execution of decree. (2)

Introduction

Execution is the medium by which a decree holder constrains the judgment-debtor to do the
command of the decree or order as the case may be. It empowers the decree holder to recover the
products of the judgment. The execution is finished when the judgment-creditor or decree holder
gets cash or other thing granted to him by judgment, decree or order. The principles governing
execution of decree and orders are dealt with in Sections 36 to 74 and Order 21 of the Civil
Procedure Code.

Meaning

“Execution" signifies the enforcement or giving effect to a judgment or order of a court of justice.
"execution" means the process for enforcing or giving effect to the judgment of the Court. In other
words, execution is the enforcement of decrees and orders by the process of the court.

Modes of Execution of Decree

(1) Delivery of property

(a) Movable property: Section 51(a), Order 21 Rule 31

Where the decree is for any specific movable property, it may be executed
(i) by seizure and delivery of the property; or
(ii) by detention of the judgment-debtor; or
(iii) by the attachment and sale of his property; or
(iv) by attachment and detention both.

The words specific movable (property) do not include money and, therefore, a decree for money
cannot be executed under Rule 31.

(b) Immovable property: Order 21 Rules 35 and 36

Rules 35 and 36 provide the mode of executing decrees for possession of immovable property to
the decree-holder. Where the decree is for immovable property in the possession of the judgment-
debtor or in the possession of the person bound by the decree, it can be executed by removing the
judgment- debtor or any person bound by the decree and by delivering possession thereof to the
decree holder.
 101

(2) Attachment and sale of property: Section 51(b)

Section 51(b) empowers the court to order execution of a decree by attachment and sale or by sale
without attachment of any property. The court is competent to attach the property if it is situated
within the local limits of the jurisdiction of the court. It is immaterial that the place of business of
the judgment-debtor is outside the jurisdiction of the court.

(3) Arrest and detention: Section 51(c)

It is for the decree-holder to decide in which of the several modes he will execute his decree. One
of such modes of executing a decree is arrest and detention in civil prison of the judgment-debtor.
However, clause (c) should be read subject to the proviso to Section 51.

The proviso lays down that where the decree is for payment of money, execution by detention in
civil prison should not be ordered unless, after giving the judgment-debtor an opportunity of
showing cause why he should not be so detained, the court for reasons to be recorded in writing is
satisfied

(i) that the judgment-debtor with the object of obstructing or delaying the execution of the decree
(a) is likely to ab- scond or leave the local limits of the jurisdiction of the court; or
(b) has, after the institution of the suit in which the decree was passed, dishonestly transferred,
concealed or removed any part of his property, or committed any other act of bad faith in relation
to his property; or

(ii) that the judgment-debtor has, or has had since the date of the decree, the means to pay the
amount of the decree or some substantial part thereof and refuses or neglects or has refused or
neglected to pay the same; or

(iii) that the decree is for a sum which the judgment-debtor was bound in a fiduciary capacity to
account for.

(4) Appointment of receiver: Section 51(d)

One of the modes of execution of a decree is the appointment of a receiver. Execution by

appointment of a receiver is known as equitable execution and is entirely at the discretion of the
court. It cannot be claimed as of right. It is thus an exception to the general rule stated above that
it is for the decree-holder to choose the mode of execution and that the court has no power to refuse
the mode chosen by him.
 102

The appointment of a receiver in execution proceedings is considered to be an exceptional remedy

and a very strong case must be made out in support of it." The decree-holder before resorting to
this mode must show that there is no effective remedy for obtaining relief by the usual statutory
modes of execution." The court also must be satisfied that the appointment of a receiver is likely
to benefit both the decree-holder and the judgment-debtor rather than a sale of the attached
property.

(5) in such other manner as the nature of the relief granted may require

such as:
Partition: Section 54

Where a decree is for partition or separate possession of a share of an undivided estate assessed to
the payment of revenue to the Government, the partition or separation of the share should be made
by the Collector.

Cross-decrees and cross-claims: Rules 18-20

Rules 18 to 20 of Order 21 deal with set-off of cross-decrees and cross- claims.

Rule 18 enacts that cross-decrees for the payment of money shall be set-off against each other.

Rule 19 provides for a set-off in the case of cross-claims in the same decree. It lays down that if
the two sums in cross-claims under the same decree are equal, satisfaction of each shall be entered
in the decree and no execution shall be allowed to be taken out.

Payment of money: Rules 2, 30

All money payable under a decree shall be paid either

(i) by depositing in the executing court; or
(ii) out of court to the decree-holder, or
(iii) as per the direction of the court which has passed the decree.

Specific performance of contract: Rule 32

Where a decree is for specific performance of a contract, and the judg- ment-debtor wilfully
disobeys it, it may be executed by attachment of his property, or his detention in civil prison, or
by both.
 103

Injunction: Rule 32

Where a decree is for injunction, and the judgment-debtor disobeys it, it may be executed by
attachment of his property, or his detention in civil prison, or by both.

Restitution of conjugal rights: Rules 32-33

Where a decree is for restitution of conjugal rights, and the judgment- debtor wilfully disobeys it,
it may be executed by attachment of his property.

A decree for restitution of conjugal rights cannot be executed by sending the person (husband or
wife, as the case may be) to civil prison and the only permissible mode of executing the decree is
attachment of the property of the judgment-debtor.”

Execution of document: Rule 34

Where a decree is for the execution of a document and the judgment-debtor neglects or refuses to
obey the same, the court shall, after giving an opportunity to the decree-holder as well as to the
judgment-debtor to prepare a draft of the document in accordance with the terms of the decree,
execute a document in the prescribed form. It shall have the same effect as the execution of a
document by the party ordered to execute the same.

Endorsement of negotiable instrument: Rule 34

Where a decree is for the endorsement of a negotiable instrument and the judgment-debtor neglects
or refuses to obey the decree, the court shall, after giving an opportunity to the decree-holder as
well as to the judgment-debtor to prepare a draft of endorsement in accordance with the terms of
the decree, endorse a negotiable instrument in the prescribed form.

Attachment of rent, mesne profits, etc.: Rule 42

Where a decree is for unascertained rent, or mesne profits, or any other matter, the court may order
attachment of the property of the judgment-debtor before the amount due from him is ascertained.
Such attachment, however, cannot affect any interest created in the property prior to the
attachment.

Liability of surety: Section 145

Where any person has furnished security or given a guarantee

(a) for the performance of any decree or any part thereof; or
 104

(b) for the restitution of any property taken in execution of a decree; or

(c) for the payment of any money, or the fulfilment of any condition imposed on any person, under
an order of the court in any suit or in any proceeding consequent thereon;

the decree or order may be executed

(i) if he has rendered himself personally liable, against him to that extent;
(ii) if he has furnished any property as security, by sale of such property to the extent of the
security;
(iii) if the case falls under both the clauses

Decree against corporation: Rule 32

Where the party against whom a decree for specific performance of a contract or for injunction has
been passed is a corporation, and has wilfully failed to obey the decree passed against it, the same
may be executed by the attachment of its property or with the leave of the court by detention in
civil prison of its directors or other officers or by both

Decree against firm: Rules 49 and 50

Where a decree has been passed against a partnership firm, it may be executed against
(a) any partnership property;
(b) any person who has appeared in his own name as a partner, or admitted to be a partner; or
(c) any person who has been individually served with a summons as a partner and has failed to
appear.

Attachment of decree: Rule 53

Where the property to be attached is a decree either for payment of money, or for sale in
enforcement of a mortgage or charge, the attachment can be effected either by the court which
passed the decree, or by the executing court by issuing notice to the court which has passed the
decree.

Payment of coins or currency notes: Rule 56

Where the property to be attached are coins or currency notes, the court may direct that such coins
or currency notes or a part thereof sufficient to satisfy the decree, be paid to the decree-holder.
 105

RajKrishna Sugar Works Ltd v. Land reforms commr

Co. had arrears of land revenue. Commissioner wanted to sell immovable property. The Co.
Requested to first sell movable property. But the court held that it is at the option of the decree
holder to decide.

Conclusion

There are various methods of execution of a decree under the Code of Civil Procedure. It is the
duty of the Court to assess the facts of each and every case and provide appropriate relief to the
decree-holder without any delay. The Court has to follow the procedures which are provided under
the Orders of the Code of Civil Procedure before executing a decree and choosing the appropriate
mode of execution.
 106

3. What are the 'issues' in suit? How issues be framed? (2)

Introduction:

Framing of issues is probably the most important part of the trail of a civil suit. For a correct and
accurate decision in the shortest possible time in a case, it is necessary to frame the correct and
accurate issues. Inaccurate and incorrect issues may kill the valuable time of the court.

Meaning

According to the dictionary meaning, "issue" means a point in question; an important subject of
debate, disagreement, discussion, argument or litigation." In other words, an issue is that which, if
decided in favour of the plaintiff, will in itself give a right to relief; and if decided in favour of the
defendant, will in itself be a defence.

Order XIV

Rule 1: Framing of issues

(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied
by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order
to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form the subject
of a distinct issue.

(4) Issues are of two kinds:

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the court shall, after reading the plaint and the written statements,
if any, and [after examination under rule 2 of Order X and after hearing the parties or their
pleaders), ascertain upon what material propositions of fact or of law the parties are at variance,
and shall thereupon proceed to frame and record the issues on which the right decision of the case
appears to depento
 107

(6) Nothing in this rule requires the court to frame and record issues where the defendant at the
first hearing of the suit makes no defence.

Rule 2: Court to pronounce judgment on all issues

(1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject
to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the
case or any part thereof may be disposed of on an issue of law only, it may try that issue first if
that issue relates to

(a) the jurisdiction of the court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it
thinks fit, postpone the settlement of the other issues until after that issue has been determined,
and may deal with the suit in accordance with the decision on that issue.]

Rule 3: Materials from which issues may be framed

The court may frame the issues from all or any of the following materials:

(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by
the pleaders of such parties;

(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;

(c) the contents of documents produced by either party.

Rule 4: Court may examine witnesses or documents before framing issues

Where the court is of opinion that the issues cannot be correctly framed without the examination
of some person not before the court or without the inspection of some document not produced in
the suit, it [may adjourn the framing of issues to a day not later than seven days] and may (subject
to any law for the time being in force) compel the attendance of any person or the production of
any document by the person in whose possession or power it is by summons or other process
 108

Rule 5: Power to amend and strike out issues

(1) The Court may at any time before passing a decree amend the issues or frame additional issues
on such terms as it thinks fit, and all such amendments or additional issues as may be necessary
for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it
to be wrongly framed or introduced.]

Rule 6: Questions of fact or law may by agreement be stated in form of issues

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 of 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 to 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 obtain from doing some particular act specified in the
agreement and relating to the matter in dispute

Rule 7: Court, if satisfied that agreement was executed in good faith, may pronounce
judgment

Where the court is satisfied, after making such inquiry as it deems proper,-

(a) that the agreement was duly executed by the parties,

(b) that they have a substantial interest in the decision of such question as aforesaid, and

(c) that the same is fit to be tried and decided,

it shall proceed to record and try the issue and state its finding or decision thereon in the same
manner as if the issue had been framed by the court, and shall, upon the finding or decision on
such issue, pronounce judgment according to the terms of the agreement; and, upon the judgment
so pronounced, a decree shall follow.
 109

Sree Meenakshi Mills Ltd. v. CIT

It was held that Issues may be mixed issues of fact and law.

Sita Ram v. Radha Bai

It was held that it is the issues framed and not the pleadings that guide the parties in the matter of
leading evidence.

Goppulal v. Thakurji

It was held that the court should not frame an issue which does not arise in the pleadings.

Conclusion

When a plaint is instituted it will become a suit. On adjudication it will then end up in a judgment.
A judgment is a formal and final expression of adjudication on the issues. The issues framed
initially keep the thread right from the beginning to the end of the case.
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4. What is an exparte decree? State the remedies available to the person

against whom such decree is passed. (2)

INTRODUCTION

‘Judgment,’‘Decree,’ and ‘Order’ are the most common terms used throughout any judicial
proceeding. At the conclusion of every court-adjudicated matter, whether civil or criminal, the
judge pronounces a verdict. A decree is a document that the court drafts after a civil matter is
concluded, and a judgment is rendered. It has the court seal on it and is signed by the judge. After
the decision is rendered, a decree is probably drafted in 15 days or less. A civil suit's process
typically concludes when the court issues a decision on a particular issue.

Meaning

An ex parte decree is a decree passed in the absence of the defendant (in absenti). Where the
plaintiff appears and the defendant does not appear when the suit is called out for hearing and if
the defendant is duly served, the court may hear the suit ex parte and pass a decree against him.
Such a decree is neither null and void nor inoperative but is merely voidable and unless and until
it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable like a bi-
parte decree and it has all the force of a valid decree.

According to Section 2 (2) of the Code of Civil Procedure (1908), a ‘decree’ is the formal
statement of a dispute resolution by the civil court that establishes the parties' rights definitively
with respect to all the issues in dispute in the civil suit.

EX-PARTE DECREE

There is an exception to the usual norm that states that both parties must be present when an
adjudication is made. When the court determines that the defendant has not shown in court on the
day of the hearing specified in the summons that was issued to him in compliance with the Code's
rules, it may proceed ex parte and issue an ex parte decree under Order 9, Rule 6(1)(a).

However, the court will send the defendant another summons if the first is not properly served.
The court will reschedule the case to a later time if the summons is correctly served but the
defendant is not given enough time to appear in court. The plaintiff will be required to cover the
expense of the hearings' postponement if the court determines that the plaintiff was at fault for the
summons' improper serving.
 111

M Krishnappa v. Mensamma (2020)

The Karnataka High Court declared that if the defendants appeared but did not provide an
argument, the case would be considered Ex Parte, and the defendants might file a petition under
Order 9 Rule 13 of the CPC.

WHEN CAN THE COURT PASS THIS DECREE?

Rule 10 Order 8

According to Rule 1 of Order 8 of the CPC, the defendant has 30 days from the date the summons
was served to provide a written statement. The court may extend this thirty-day window to a
maximum of ninety days following the date the summons was served. Rule 10 of Order 8 gives
the Court the authority to issue an Ex-Parte Decree if the defendant does not provide the written
statement within the allotted time. The court, in its discretion, can also grant adjournments for
special reasons before passing an ex parte decree, but it cannot be granted more than three times.

Order 9, Rule 6 Order IX,

Rule 6 states that the case may be tried ex parte if the plaintiff appears on the day specified in the
summons for the defendant to appear and answer, but the defendant does not appear, and it is
demonstrated that the summons was properly served in time for the defendant to appear and answer
on the day named in the summons. However, the plaintiff must prove this case to the satisfaction
of the Court, before he can obtain a decree.

Regarding the provisions of Order IX, Rule 6 and Order VIII, Rule 10 of the CPC, it was noted in
the case of Ramesh Chand Ardawatiya V/s Anil Pajwani, that even if the suit proceeds ex-parte
under Order IX, Rule 6 of the CPC, the plaintiff's burden of proving its case cannot be waived.

Remedies

The defendant, against whom an ex parte decree has been passed, has the following remedies
available to him:

(1) to apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or

(2) to prefer an appeal against such decree: Section 96(2) (or to file a revision under Section 115
where no appeal lies);

(3) to apply for review: Order 47 Rule 1; or

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(4) to file a suit on the ground of fraud.

The above remedies are concurrent and they can be prosecuted simultaneously or concurrently.
"Where two proceedings or two remedies are provided by a statute, one of them must not be taken
as operating in derogation of the other."

Rule 13: Setting aside decree ex parte against defendants

In any case in which a decree is passed ex parte against a defendant, he may apply to the court by
which the decree was passed for an order to set it aside; and if he satisfies the court that the
summons was not duly served, or that he was prevented by any sufficient cause from appearing
when the suit was called on for hearing, the court shall make an order setting aside the decree as
against him upon such terms as to costs, payment into court or otherwise as it thinks fit, and shall
appoint a day for proceeding with the suit:

PROVIDED that where the decree is of such a nature that it cannot be set aside as against such
defendant only it may be set aside as against all or any of the other defendants also:

[PROVIDED FURTHER that no court shall set aside a decree passed ex parte merely on the
ground that there has been an irregularity in the service of summons, if it is satisfied that the
defendant had notice of the date of hearing and had sufficient time to appear and answer the
plaintiff's claim.

Rule 14: No decree to be set aside without notice to opposite party

No decree shall be set aside on any such application as aforesaid unless notice thereof has been
served on the opposite party.

Order 8, Rule 10

● Rule 1 of Order 8 of CPC states that the defendant shall submit its written statement within
30 days from the date of service of summons.
● This time period of 30 days can be extended by the court to not more than 90 days from
the date of service of summons.
● If the defendant fails to submit the written statement in such period, then the Court, under
Rule 10 of Order 8, has the discretion to pass an Ex-Parte Decree.
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Order 9, Rule 6

This rule provides that the Court may proceed to try the case Ex-Parte, and pass an Ex Parte Decree
in the same if:
● On the day fixed in the summons for the defendant to appear, and answer, the plaintiff
appears, and the defendant does not appear.
● It is proved that the summons was duly served in sufficient time to enable the defendant to
appear and answer.

Remedies Against An Ex Parte Decree

● Once an Ex Parte Decree has been passed against a judgement debtor, he/she can undertake
any of the several remedies available to him under the code.
● CPC provides the following remedies against an Ex-Parte Decree:

1. Setting Aside

● Order 9, Rule 13 of the CPC, provides for the setting aside of the Ex-Parte decree passed
against the defendant.
● Defendant against whom an Ex-Parte decree has been passed may apply to the Court by
which the decree was passed for an order to set it aside and if he satisfies the Court that:
The summons was not duly served, or
He was prevented by any sufficient cause from appearing when the suit was called on for hearing.
If either of the above two conditions are satisfied, then the Court shall make an order setting aside
the decree as against such defendant.

2. Conditional Setting Aside of Decree

● Court may, in its discretion, while setting aside a decree impose such terms as to costs,
payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with
the suit.
● Rule 14 of the Order 9 states that no decree is to be set aside without furnishing notice to
the opposite party

3. Appeal

According to Section 96(2) of the Code, an appeal may lie from an original decree passed ex parte.
 114

4. Review

A review under Section 114 of the code can be made against a decree passed Ex-Parte.
Section 114 states that any person considering himself aggrieved—
(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal
has been preferred
(b) by a decree or order from which no appeal is allowed by this Code, or
(c) by a decision on a reference from a Court of Small Causes,
may apply for a review of judgment to the Court which passed the decree or made the order, and
the Court may make such order thereon as it thinks fit.

Bhanu Kumar Jain v. Archana Kumar & Anr (2004),

the Apex Court set aside an Ex-Parte decree on the ground that the defendant had sufficient and
reasonable grounds for not being able to attend the hearing of the suit on the day fixed in the
summons.

Sultan Husain v. Satnarain Lal,

The defendant against whom ex parte decree has been passed may apply for setting it aside. Where
there are two or more defendants, any one or more of them may also make such application.

CONCLUSION

The Indian Civil Procedure Code offers the legal remedy of setting aside an ex-parte order to
address situations in which a party has suffered an unfavourable effect from an order issued
without their presence. The defendant must provide sufficient justification for their non-
appearance or show that the summons was not served properly to succeed in having the order set
aside.Therefore, it will be better to comply with the directions as given by the court rather than
delving into an ocean of further legal procedures or remedies.
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5. Define judgement and distinguish it with decree.

Introduction

The word ‘judgement’ is derived after combining two words namely, judge and statement. It can
also be termed as an act of judging. It is the conclusion or the result of judging. On the other hand,
the term decree can be termed as the judicial decision in a litigated cause rendered by a Court of
equity. It is the determination of a cause in a Court of admiralty or Court of probate. The Court,
after the case has been heard, shall pronounce judgement, and on such judgement a decree shall
follow. Section 33 of the Code of Civil Procedure describes the term ‘Judgement and Decree’
together.
Definition

Sec 2(2): "decree" means the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to
include the rejection of a plaint and the determination of any question within section 144, but shall
not include

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Sec 2(9): “Judgment" means the statement given by the Judge on the grounds of a decree or order

Essentials of judgment

The essential element of a judgment is that there should be a statement for the grounds of the
decision. Every judgment other than that of a Court of Small Causes should contain

(i) a concise statement of the case;

(ii) the points for determination;
(iii) the decision thereon; and
(iv) the reasons for such decision.

A judgment of a Court of Small Causes may contain only points (ii) and (iii). Sketchy orders which
are not self- contained and cannot be appreciated by an appellate or revisional court without
examining all the records are, therefore, unsatisfactory and cannot be said to be judgments in that
sense.
 116

Balraj Taneja v. Sunil Madan",

Decree

a judge cannot merely say "Suit decreed" or "Suit dismissed". The whole process of reasoning has
to be set out for deciding the case one way or the other. Even the Small Causes Court's judgments
must be intelligible and must show that the judge has applied his mind.

Essential Elements of a Decree

• There should be an adjudication: It is the most essential feature of a decree. A former
decision of the Judge on the dispute should be there. In the absence of such judicial
determination, there can be no decree.
• Suit: This proceeding is instituted in the Court of Law by filing a plaint in the civil court.
Similar to adjudication, there is no decree without a civil suit. There are specific provisions
that treat certain applications as suits like proceedings under Hindu Marriage Act, Indian
Succession Act.
• Determining the rights of the parties: The adjudication should determine the rights of
the parties in a dispute. The term parties refer to the plaintiff (person instituting the suit)
and the defendant (person against whom the suit has been filed).
• Determination must be conclusive in nature: The determination held by the Court should
be conclusive relating to the rights of the parties. The provisional decisions are not
considered decree.
• There must be a formal expression: To be a decree, there must be a formal expression of
adjudication. In other words, the court must formally express its decision in the manner
laid down by law.

Types of Decree

There are three types of decree as recognised by the Civil Procedure. They are:

• Preliminary Decree - It is passed in cased in which the court has to first adjudicate upon
the right of the parties and further proceedings need to take place before the suit is in a
position to be completely disposed of.
• Final Decree - A final decree is where a suit is completely disposed and all the questions
in controversy between the parties are finally settled and there is nothing remaining to be
decided on. A decree may be final in two ways:
• Partly preliminary and party final: Ordinarily, there will be one preliminary decree and
one final decree in one suit. But partly preliminary and partly final decrees are an exception
to this rule. In a suit for possession of immovable property with mesne profits, where the
court (i) decrees possession of the property (ii) directs an enquiry into the mesne profits.
 117

The former part is a final decree; the latter part is a preliminary decree because a final
decree for mesne profits can be drawn only after the enquiry and the amount due is
ascertained. Even though in this case there is only one decree, it can be said that the decree
is partly preliminary and partly final.
• Deemed decree: ‘Deemed’ means to consider in a specified way or regard in a specified
way. The term ‘deemed’ is generally used to create a statutory fiction for the purpose of
extending the meaning which it doesn’t expressly cover. The rejection of a plaint and the
determination of questions under Section 144 (restitution) are deemed decrees.

Judgment and decree: Distinction

As stated above, "judgment" means the statement given by a judge on the grounds of a decree or
order. It is not necessary for a judge to give a statement in a decree though it is necessary in a
judgment. Likewise, it is not necessary that there should be a formal expression of the order in the
judgment, though it is desirable to do so. Rule 6-A of Order 20 as inserted by the Amendment Act
of 1976, however, enacts that the last paragraph of the judgment should state precisely the relief
granted. Thus, a judgment contemplates a stage prior to the passing of a decree or an order, and,
after the pronouncement of the judgment, a decree shall follow.

Difference between Judgement and Decree

Judgement Decree

A judgement is based upon facts. A decree is based upon judgement.

Judgment is made prior to decree Decree always follows a judgement
A judgement contains facts of the case, the A decree contains the outcome of the suit and
issues involved, the evidence brought by the conclusively determines the rights of the
parties, finding on issues(based on evidence parties with regard to the issues in dispute in
and arguments). the suit.
The definition of the word judgement given in The definition of the word decree given in
section 2(9) of the Code of Civil Procedure, section 2(2) of Code of Civil Procedure, 1908
1908 does not include the word ‘formal’. includes the word ‘formal’.
Section 2(9) of the Code of Civil Procedure, Section 2(2) of the Code of Civil Procedure,
1908 describes the term judgement. 1908 describes the term decree
Judgement has no types A decree is divided into three types
Judgement may result in a preliminary decree The decree may be a preliminary or final or
or a final decree or an order by itself, the partly preliminary and partly final
judgement is always final
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Judgement leads to the final disposal of the suit After passing the decree, the suit stands
after the decree is drawn up disposed of since the rights of the parties are
finally determined by the court
In the case of judgement, it is not necessary In a decree, it is necessary that there should be
that there should be a formal expression of the a formal expression of an adjudication.
order in judgement
Judgement is a stage prior to the passing of a The decree is followed after the
decree or order. pronouncement of the judgement.
Judgement is passed in both civil and criminal Decree is given in civil cases only
cases
The decree is appealable judgement is not appealable

Conclusion

Decree is always followed after pronouncement of judgement so it can be said that judgement is
the set and decree is its sub set. A decree can be of three kinds which are; preliminary, final or
partly preliminary and partly final. Judgement stands on a different footing from order and decree.
There is no use of the words ‘formal expression’ in the definition ‘judgement’, though they are
used in the definition of ‘order’ and ‘decree’.
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6. What is Decree? What are the differences between decree and order?

Introduction

Law implies a body of rules which are recognized by a country to govern the action and behavior
of the citizens. It can be grouped as substantive law – that ascertains the rights of the parties and
procedural/adjective law – that determines the practice, procedure and machinery to implement
the rights and duties. On the grounds of decree or order, a judgment is passed by the court.
An order is nothing but a judgment while a decree is a final part of judgement.

Sec 2(2): "decree" means the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to
include the rejection of a plaint and the determination of any question within section 144, but shall
not include [xxxx]

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Sec 2(14): "order" means the formal expression of any decision of a Civil Court which is not a
decree;

Order and decree: Distinction

In spite of the above common elements, there are fundamental distinctions between the two
expressions:

(i) A decree can only be passed in a suit which commenced by presentation of a plaint. An order
may originate from a suit by presentation of a plaint or may arise from a proceeding commenced
by a petition or an application.

(ii) A decree is an adjudication conclusively determining the rights of the parties with regard to all
or any of the matters in controversy; an order, on the other hand, may or may not finally determine
such rights.

(iii) A decree may be preliminary or final, or partly preliminary and partly final, but there cannot
be a preliminary order.
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(iv) Except in certain suits, where two decrees, one preliminary and the other final are passed, in
every suit there can be only one decree; but in the case of a suit or proceeding, a number of orders
may be passed.

(v) Every decree is appealable, unless otherwise expressly provided, but every order is not
appealable. Only those orders are appealable as specified in the Code.

(vi) A Second Appeal lies to the High Court on certain grounds from the decree passed in First
Appeal. Thus, there may be two appeals; while no Second Appeal lies in case of appealable orders.

Conclusion

The Civil Procedure Code, 1908 defines both decree and order which are given by the civil court,
and formally express a decision, in matters of controversy between the opposing parties. While a
decree finally decides the rights of the plaint and defendant, order may or may not clearly
determine the rights.
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7. Explain the provisions of Civil Procedure Code relating to the discovery,

inspection and production of documents.

Introduction

One of the essential elements of the rule of law is its procedures. To run a fair trial, equal
opportunities shall be given to both parties to access the documents related to the case. In the Civil
Procedure Code, 1908, separate chapters are provided so that a fair trial is attainable by both the
parties of the suit. After the plaint has been filed by the plaintiff and written statement by the
defendant, if the parties feel that proper facts were not disclosed in the suit, either of them can ask
for the documents to obtain proper facts of the case.

Meaning

Discovery" means to compel the opposite party to disclose what he has in his possession or power.
It is thus a compulsory disclosure by a party to an action of facts or documents on which the other
side wishes to rely.

“Inspection” of documents is a party's legal right to examine the opposing party's documents
relevant to the lawsuit during pre-trial discovery (disclosures).

“Document production” is a procedural tool by which a party or the tribunal can request (and order)
the production of documents in possession of the other party allowing them to obtain further
evidence to substantiate their case

Order XI

Rule 1: Disclosure and discovery of documents

(1) Plaintiff shall file a list of all documents and photocopies of all documents, in its power,
possession, control or custody, pertaining to the suit, along with the plaint, including:-

(a) documents referred to and relied on by the plaintiff in the plaint;

(b) documents relating to any matter in question in the proceedings

(c) nothing in this Rule shall apply to documents produced by plaintiffs and relevant only-

(i) for the cross-examination of the defendant's witnesses, or

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(ii) in answer to any case setup by the defendant subsequent to the filing of the plaint, or

(iii) handed over to a witness merely to refresh his memory.

(2) The list of documents filed with the plaint shall specify whether the documents are originals,
office copies or photocopies and also set out, mode of execution, issuance or receipt and line of
custody of each document.

(3) The plaint shall contain a declaration on oath from the plaintiff that all documents pertaining
to the facts and circumstances of the proceedings initiated by him have been disclosed and does
not have any other documents in its custody

(5) The plaintiff shall not be allowed to rely on documents, which were not disclosed along with
plaint or within the extended period.

(6) The plaint shall set out details of documents, which the plaintiff believes to be in the custody
of the defendant and which the plaintiff wishes to rely upon.

(7) The defendant shall file a list of all documents and photocopies of all documents, in its custody,
pertaining to the suit, along with the written statement or with its counter-claim if any, including-

(a) the documents referred to and relied on by the defendant in the written statement;

(b) the documents relating to any matter in question in the proceeding.

(c) nothing in this Rule shall apply to documents produced by defendants and relevant only-

(i) for the cross-examination of the plaintiff's witnesses,

(ii) in answer to any case set up by the plaintiff subsequent to the filing of the plaint, or

(iii) handed over to a witness merely to refresh his memory.

(8) The list of documents filed with the written statement or counter-claim shall specify whether
the documents are originals, office copies or photocopies and mode of execution, issuance or
receipt and line of custody of each document.

(9) The written statement or counter-claim shall contain a declaration on oath made by the
deponent that all documents have been disclosed and does not have any other documents.
 123

(10) defendant shall not be allowed to rely on documents, which were not disclosed along with the
written statement or counter-claim,

(11) The written statement or counter-claim shall set out details of documents which the defendant
wishes to rely upon and which have not been disclosed with the plaint, and call upon the plaintiff
to produce the same.

(12) Duty to disclose documents, which have come to the notice of a party, shall continue till
disposal of the suit.

Rule 2: Discovery by Interrogatories

(1) In any suit the plaintiff or defendant by leave of the court may deliver interrogatories in writing
for the examination of the opposite parties or any one and such interrogatories when delivered
shall have a note at the foot stating which of such interrogatories each of such persons is required
to answer:

PROVIDED that no party shall deliver more than one set of interrogatories to the same party
without an order for that purpose:

PROVIDED FURTHER that interrogatories which do not relate to any matters in question in the
suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-
examination of a witness.

(2) On an application for leave to deliver interrogatories, the particular interrogatories proposed to
be delivered shall be submitted to the court, and that court shall decide within seven days,

(5) Where any party to a suit is a corporation or a body of persons, whether incorporated or not,
empowered by law to sue or be sued, whether in its own name or in the name of any officer of
other person, any opposite party may apply for an order allowing him to deliver interrogatories to
any member or officer of such corporation or body, and an order may be made accordingly.

(6) Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant
or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not
sufficiently material at that stage, or on the ground of privilege or any other ground may be taken
in the affidavit in answer.

(7) Any interrogatories may be set aside on the ground that they have been exhibited unreasonably
or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or
 124

scandalous and any application for this purpose may be made within seven days after service of
the interrogatories.

(8) Interrogatories shall be answered by affidavit to be filed within ten days, or within such other
time as the court may allow.

(11) Where any person interrogated omits to answer, or answers insufficiently, the party
interrogating may apply to the court for an order requiring him to answer either by affidavit or by
viva voce examination, as the court may direct

Rule 3: Inspection

(1) All parties shall complete inspection of all documents disclosed within thirty days of the date
of filing of the written statement or written statement to the counter-claim, whichever is later. The
Court may extend this time limit upon application at its discretion, but not beyond thirty days in
any event.

(2) Any party to the proceedings may seek directions from the Court, at any stage of the
proceedings, for inspection or production of documents by the other party, of which inspection has
been refused by such party or documents have not been produced despite issuance of a notice to
produce.

(3) Order in such application shall be disposed of within thirty days of filing such application,

(4) If the above application is allowed, inspection and copies thereof shall be furnished to the party
seeking it, within five days of such order.

(5) No party will be permitted to rely on a document, which it had failed to disclose or of which
inspection has not been given, save and except with leave of Court.

(6) Court may impose exemplary costs against a defaulting party, who wilfully or negligently
failed to disclose all documents pertaining to a suit or essential for a decision in their custody or
where a Court holds that inspection or copies of any documents had been wrongfully or
unreasonably withheld or refused.

Rule 4: Admission and denial of documents

(1) Each party shall submit a statement of admissions or denials of all documents disclosed and of
which inspection has been completed, within fifteen days of the completion of inspection or any
later date as fixed by the Court.
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(2) The statement of admissions and denials shall set out explicitly, whether such party was
admitting or denying:

(a) correctness of contents of a document;

(b) existence of a document;

(c) execution of a document;

(d) issuance or receipt of a document;

(e) custody of a document.

Rule 5: Production of documents

(1) Any party to a proceeding may seek or the Court may order, at any time during the pendency
of any suit, production by any party or person, of such documents in the possession or power of
such party or person, relating to any matter in question in such suit.

(3) Any party or person to whom such notice to produce is issued shall be given not less than seven
days and not more than fifteen days to produce such document or to answer to their inability to
produce such document.

(4) The Court may draw an adverse inference against a party refusing to produce such document
after issuance of a notice to produce and where sufficient reasons for such non-production are not
given and order costs.

ORDER XIII

Rule 1: Original documents to be produced at or before the settlement of issues

(1) The parties or their pleader shall produce on or before the settlement of issues, all the
documentary evidence in original where the copies thereof have been filed along with the plaint
or written statement.

(2) The court shall receive the documents so produced:

PROVIDED that they are accompanied by an accurate list thereof prepared in such form as the
High Court directs.
 126

(3) Nothing in sub-rule (1) shall apply to documents-

(a) produced for the cross-examination of the witnesses of the other party; or

(b) handed over to a witness merely to refresh his memory.]

Central Bank of India v. Shivam Udyog,

if the documents are irrelevant or immaterial to the question in controversy or the prayer is made
with a view to delay the proceedings, the application will be rejected

M.L. Sethi v. R.P. Kapur,

Discovery may be ordered for a document which is relevant and which may have some bearing on
the matter in issue. Such document need to be admissible in evidence.

Moti Lal v. Kundan Lal,

If a party ordered to produce documents fails to comply with the order, a court may draw an adverse
inference that had he produced them, they would have gone against him.

Conclusion

The procedures provided under the CPC are so important, that if not followed properly, can
adversely affect the parties. The court has discretionary powers under Order 11, 12, 13 and 19 to
pass such order which it deems fit to adjudicate matter fairly. The parties shall also follow the
procedures provided within the time frame, so that the case can be disposed off quickly and
effectively.
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8. Explain the properties which are not liable for attachment and sale in an
execution of a decree.

Introduction

Section 60(1) of the Civil Procedure Code, declares that all saleable properties are liable to
attachment and sale in execution of the decree. It also provides that the property specified
therein are exempted from attachment and sale in the execution of a decree.
According to the general rule, all property movable and immovable properties which include
agricultural land, buildings, and shares, furniture’s fixtures or movable property including money,
articles etc. Owned by judgment-debtor and judgment-debtor entitled to hold and process to the
exclusion of others.

Meaning

“Execution" signifies the enforcement or giving effect to a judgment or order of a court of justice.
"execution" means the process for enforcing or giving effect to the judgment of the Court. In other
words, execution is the enforcement of decrees and orders by the process of the court.

Execution of decree

Sec 51:

the court may order execution of the decree-

(a) by delivery of any property specifically decreed;

(b) by attachment and sale or by the sale without attachment of any property,

(c) by arrest and detention in prison [for such period not exceeding the period specified in section
58, where arrest and detention is permissible under that section];

(d) by appointing a receiver; or

(e) in such other manner as the nature of the relief granted may require:

Sec 60: Property liable to attachment and sale in execution of decree

(1) The following property is liable to attachment and sale in execution of a decree namely, lands,
houses or other buildings, goods, money, bank notes cheques, bills of exchange, hundis,
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promissory notes, Government securities, bonds or other securities for money, debts, shares in a
corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable,
belonging to the judgment-debtor, or over which, or the profits of which, he has a disposing power
which he may exercise for his own benefit, whether the same be held in the name of the judgment-
debtor or by another person in trust for him or on his behalf:

PROVIDED that the following particulars shall not be liable to such attachment or sale, namely:-

(a) the necessary wearing apparel, cooking vessels, beds and bedding of the judgment-debtor, his
wife and children, and such personal ornaments as in accordance with religious usage, cannot be
parted with by any woman

(b) tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of
husbandry and such cattle and seed grain as may, in the opinion of the court, be necessary to enable
him to earn his livelihood as such, and such portion of agricultural produce or of any class of
agricultural produce as may have been declared to be free from liability under the provisions of
the next following section;

(c) houses and other buildings (with the materials and the sites thereof and the land immediately
appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a labourer
or a domestic servant] and occupied by him;

(d) books of account;

(e) a mere right to sue for damages:

(f) any right of personal service;

(g) stipends and gratuities allowed to pensioners of the Government for of a local authority or of
any other employer), or payable out of any service family pension fund notified in the Official
Gazette by the Central Government or the State Government in this behalf, and political pension:

(h) the wages of labourers and domestic servants, whether payable in money or in kind;

(i) salary to the extent of [the first [one thousand rupees] and two-thirds of the remainder] [in
execution of any decree other than a decree for maintenance]:

[PROVIDED that where any part of such portion of the salary as is liable to attachment has been
under attachment, whether continuously or intermittently, for a total period of twenty-four months,
such portion shall be exempt from attachment until the expiry of a further period of twelve months,
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and, where such attachment has been made in execution of one and the same decree, shall, after
the attachment has continued for a total period of twenty-four months, be finally exempt from
attachment in execution of that decree;]

[(ia) one-third of the salary in execution of any decree for maintenance;]

[(j) the pay and allowances of persons to whom the Air Force Act, 1950, or the Army Act, 1950,
or the Navy Act, 1957, applies;]
(k) all compulsory deposits and other sums in or derived from any fund to which the Provident
Funds Act, 1925 (19 of 1925), for the time being applies, insofar as they are declared by the said
Act not to be liable to attachment;

[(ka) all deposits and other sums in or derived from any fund to which the Public Provident Funds
Act, 1968 (23 of 1968), for the time being applies, insofar as they are declared by the said Act as
not to be liable to attachment;

(kb) all moneys payable under a policy of insurance on the life of the judgment- debtor;

(kc) the interest of a lessee of a residential building to which the provisions of law for the time
being in force relating to control of rents and accommodation apply;]

(1) any allowance forming part of the emoluments of any servant of the Government or of any
servant of a railway company or local authority which the appropriate Government may, by
notification in the Official Gazette, declare to be exempt from attachment, and any subsistence
grant or allowance made to any such servant while under suspension;

(m) an expectancy of succession by survivorship or other merely contingent or possible right or

interest;

(n) a right to future maintenance;

(o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in
execution of a decree; and

(p) where the judgment-debtor is a person liable for the payment of land revenue, any movable
property which, under any law for the time being applicable to him, is exempt from sale for the
recovery of an arrear of such revenue.

(2) Nothing in this section shall be deemed to exempt houses and other buildings (with the
materials and the sites thereof and the lands immediately appurtenant thereto and necessary for
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their enjoyment) from attachment or sale in execution of decrees for rent of any such house,
building, site or land.

Sec 61: Partial exemption of agricultural produce

The State Government may, by general or special order published in the Official Gazette, declare
that such portion of agricultural produce, or of any class of agricultural produce, as may appear to
the State Government to be necessary for the purpose of providing until the next harvest for the
due cultivation of the land and for the support of the judgment-debtor and his family, shall, in the
case of all agriculturists or of any class of agriculturists, be exempted from liability to attachment
or sale in execution of a decree.

Parasram H. Bhojwani v. Pravinchand Sehgal (2021),

the Bombay High Court adopted an intriguing stance regarding the question of whether the sum
of money paid to the judgement-debtor during his lifetime under the life insurance policy on the
life can be attached under Section 60 of the Civil Procedure Code, 1908, in order to satisfy a decree
that is still pending against the said judgement-debtor.

Federal Bank Ltd. v. Indiradevi Kunjamma (1984),

a similar Section 60 CPC problem involving the attachment of funds paid under a life insurance
policy to the judgement-debtors’ lawful heirs was brought before the Bombay High Court in 1984.
The Bombay High Court referred to the Supreme Court’s ruling in the case of Sarbati Devi v. Usha
Devi (1983), in which to assert that it is no longer conceivable to retain the belief that funds payable
under an insurance policy do not form a part of the decedent’s estate, the highest court of appeal
considered it as a subject of attachment.

Radhey Shyam Gupta v. Punjab National Bank (2008) and Union of India v. Wing
Commander R.R. Hingorani (1997),

the Supreme Court held that the money is protected from attachment under Section 60 CPC as
long as it retains the character of a pensionary benefit converted into a fixed deposit.

Conclusion

The decree-holder has the privilege of determining in a civil action the method of execution of a
decree passed by the court against the judgment-debtor. From the various provisions referred to in
the Code, the judgment-creditor may choose.
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9. State the powers of the court to amend or strike out issues.

Introduction:

Framing of issues is probably the most important part of the trail of a civil suit. For a correct and
accurate decision in the shortest possible time in a case, it is necessary to frame the correct and
accurate issues. Inaccurate and incorrect issues may kill the valuable time of the court.

Meaning

According to the dictionary meaning, "issue" means a point in question; an important subject of
debate, disagreement, discussion, argument or litigation." In other words, an issue is that which, if
decided in favour of the plaintiff, will in itself give a right to relief; and if decided in favour of the
defendant, will in itself be a defence.

Order XIV, Rule 5: Power to amend and strike out issues

Order XIV

Rule 1: Framing of issues

(1) Issues arise when a material proposition of fact or law is affirmed by the one party and denied
by the other.

(2) Material propositions are those propositions of law or fact which a plaintiff must allege in order
to show a right to sue or a defendant must allege in order to constitute his defence.

(3) Each material proposition affirmed by one party and denied by the other shall form the subject
of a distinct issue.

(4) Issues are of two kinds:

(a) issues of fact,

(b) issues of law.

(5) At the first hearing of the suit the court shall, after reading the plaint and the written statements,
if any, and [after examination under rule 2 of Order X and after hearing the parties or their
pleaders), ascertain upon what material propositions of fact or of law the parties are at variance,
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and shall thereupon proceed to frame and record the issues on which the right decision of the case
appears to depento

(6) Nothing in this rule requires the court to frame and record issues where the defendant at the
first hearing of the suit makes no defence.

Rule 2: Court to pronounce judgment on all issues

(1) Notwithstanding that a case may be disposed of on a preliminary issue, the court shall, subject
to the provisions of sub-rule (2), pronounce judgment on all issues.

(2) Where issues both of law and of fact arise in the same suit, and the court is of opinion that the
case or any part thereof may be disposed of on an issue of law only, it may try that issue first if
that issue relates to

(a) the jurisdiction of the court, or

(b) a bar to the suit created by any law for the time being in force, and for that purpose may, if it
thinks fit, postpone the settlement of the other issues until after that issue has been determined,
and may deal with the suit in accordance with the decision on that issue.

Rule 3: Materials from which issues may be framed

The court may frame the issues from all or any of the following materials:

(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by
the pleaders of such parties;

(b) allegations made in the pleadings or in answers to interrogatories delivered in the suit;

(c) the contents of documents produced by either party.

Rule 4: Court may examine witnesses or documents before framing issues

Where the court is of opinion that the issues cannot be correctly framed without the examination
of some person not before the court or without the inspection of some document not produced in
the suit, it [may adjourn the framing of issues to a day not later than seven days] and may (subject
to any law for the time being in force) compel the attendance of any person or the production of
any document by the person in whose possession or power it is by summons or other process
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Rule 5: Power to amend and strike out issues

(1) The Court may at any time before passing a decree amend the issues or frame additional issues
on such terms as it thinks fit, and all such amendments or additional issues as may be necessary
for determining the matters in controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it
to be wrongly framed or introduced.

Rule 6: Questions of fact or law may by agreement be stated in form of issues

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 of 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 to 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 obtain from doing some particular act specified in the
agreement and relating to the matter in dispute

Rule 7: Court, if satisfied that agreement was executed in good faith, may pronounce
judgment

Where the court is satisfied, after making such inquiry as it deems proper,

(a) that the agreement was duly executed by the parties,

(b) that they have a substantial interest in the decision of such question as aforesaid, and

(c) that the same is fit to be tried and decided,

it shall proceed to record and try the issue and state its finding or decision thereon in the same
manner as if the issue had been framed by the court, and shall, upon the finding or decision on
such issue, pronounce judgment according to the terms of the agreement; and, upon the judgment
so pronounced, a decree shall follow.
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Sree Meenakshi Mills Ltd. v. CIT

It was held that Issues may be mixed issues of fact and law.

Sita Ram v. Radha Bai

It was held that it is the issues framed and not the pleadings that guide the parties in the matter of
leading evidence.

Goppulal v. Thakurji

It was held that the court should not frame an issue which does not arise in the pleadings.

Conclusion

When a plaint is instituted it will become a suit. On adjudication it will then end up in a judgment.
A judgment is a formal and final expression of adjudication on the issues. The issues framed
initially keep the thread right from the beginning to the end of the case.
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6 MARKS

1. Affidavit.

Introduction

An affidavit is a statement made by a person before the court or an appropriate adjudicating

authority, wherein the deponent (the person who makes the statement) states the facts and
information related to the matter in dispute, in his knowledge and swears it to be true. There are
various provisions in Indian law, which explain what an affidavit is and the proper procedure that
must be followed while submitting it before the court.

ORDER XIX: AFFIDAVITS

Meaning

"Affidavit" mean "a sworn statement in writ- ing made especially under oath or on affirmation
before an authorised officer or Magistrate”
An affidavit is a declaration of facts, made in writing and sworn before a person having authority
to administer oath. Every affidavit should be drawn up in the first person and should contain only
facts and not inferences.

Essentials

The essential attributes of an affidavit are:

(i) It must be a declaration made by a person;

(ii) It must relate to facts;

(iii) It must be in writing;

(iv) It must be in the first person; and

(v) It must have been sworn or affirmed before a Magistrate or any other authorised officer.
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Rule 1: Power to order any point to be proved by affidavit

any court may at any time for sufficient reason order that any particular fact or facts may be proved
by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as
the court thinks reasonable:

PROVIDED that where it appears to the court that either party bona fide desires the production of
a witness for cross-examination, and that such witness can be produced, an order shall not be made
authorizing the evidence of such witness to be given by affidavit

Rule 2: Power to order attendance of deponent for cross-examination

(1) Upon any application evidence may be given by affidavit, but the court may, at the instance of
either party, order the attendance for cross-examination of the deponent.

(2) Such attendance shall be in court, unless the deponent is exempted from personal appearance
in court, or the court otherwise directs.

Rule 3: Matters to which affidavits shall be confined

(1) Affidavits shall be confined to such facts as the deponent is able of his own knowledge to
prove, except on interlocutory applications, on which statements of his belief may be admitted:

PROVIDED that the grounds thereof are stated.

(2) The costs of every affidavit which shall unnecessarily set forth matters of hearsay or
argumentative matter, or copies of or extracts from documents, shall (unless the court otherwise
directs) be paid by the party filing the same.

Rule 4: Court may control evidence

(1) The Court may, by directions, regulate the evidence as to issues on which it requires evidence
and the manner in which such evidence may be placed before the Court.

(2) The Court may, in its discretion and for reasons to be recorded in writing, exclude evidence
that would otherwise be produced by the parties.

Rule 5: Redacting or rejecting evidence

A Court may, in its discretion, for reasons to be recorded in writing-

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(i) redact or order the redaction of such portions of the affidavit of examination-in-chief as do not,
in its view, constitute evidence; or

(ii) return or reject an affidavit of examination-in-chief as not constituting admissible evidence.

Rule 6: Format and guidelines of affidavit of evidence

An affidavit must comply with the form and requirements set forth below:-

(a) such affidavit should be confined to, and should follow the chronological sequence of, the dates
and events that are relevant for proving any fact or any other matter dealt with;

(b) where the Court is of the view that an affidavit is a mere reproduction of the pleadings, or
contains the legal grounds of any party's case, the Court may, by order, strike out the affidavit or
such parts of the affidavit, as it deems fit and proper;

(c) each paragraph of an affidavit should, as far as possible, be confined to a distinct portion of the
subject;

(d) an affidavit shall state-

(i) which of the statements in it are made from the deponent's own knowledge and which are
matters of information or belief; and

(ii) the source for any matters of information or belief;

e) an affidavit should-

(i) have the pages numbered consecutively as a separate document (or as one of several documents
contained in a file);

(ii) be divided into numbered paragraphs;

(iii) have all numbers, including dates, expressed in figures; and

(iv) if any of the documents referred to in the body of the affidavit are annexed to the affidavit or
any other pleadings, give the annexures and page numbers of such documents that are relied upon.
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Savithramma v. Cecil Naronha

A court may order that any fact may be proved by affidavit. Ordinarily, a fact has to be proved by
oral evidence.

Sudha Devi v. M.P. Narayanan

since affidavits are not included in the definition of "evidence" under Section 3 of the Evidence
Act. They can be used as an evidence only if, for sufficient reason, the court invokes the provisions
of Order 19 of the Code.

Conclusion

An affidavit forms an essential part of the arsenal of the judicial system, in testing the veracity of
the statements made by the deponent and holding them to their truth. In absence of an affidavit,
anyone could make false claims with the intention to mislead the courts. Although the drafting of
an affidavit would appear to be fairly simple, it is the contents of the affidavit that are of the utmost
importance.

2. Admissions. (3)

INTRODUCTION

Judgment on Admission verbatim is dealt under Order XII Rule 6 of Civil Procedure Code, 1908.
As simple as it may seem, it is imminent to understand, what is admission, what constitutes valid
admission, where must such admission be made and under what circumstances such a Judgment
under this provision can be passed. The intent of this Article is to deal with the above conundrum.
There is no doubt that admission is a common law principle. The primary object of this Rule is to
enable a party obtain speedy judgment where such admission. The nuance lies in beneficial
interpretation of this rule considering the facts and circumstances of each case to enable speedy
justice while remaining cautious not to snatch the right of fair defense.

Meaning

Section 17 of the Indian Evidence Act,1872 defines admission as a statement made in the oral,
documentary or electronic form suggesting an inference to a fact-in-issue or relevant fact.
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Order XII: Admissions

Rule 1: Notice of admission of case

Any party to a suit may give notice, by his pleading, or otherwise in writing, that he admits the
truth of the whole or any part of the case of any other party.

Rule 2: Notice to admit documents

Either party may call upon the other party [to admit, within [seven) days from the date of service
of the notice any document,; and in case of refusal or neglect to admit, after such notice, the costs
of proving any such document shall be paid by the party so neglecting or refusing, whatever the
result of the suit may be, and no costs of proving any document shall be allowed unless such notice
is given.

Rule 2A: Document to be deemed to be admitted if not denied after service of notice to admit
documents

(1) Every document which a party is called upon to admit, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading or in his reply to the notice to admit
documents, shall be deemed to be admitted except as against a person under a disability:

PROVIDED that the court may, in its discretion and for reasons to be recorded, require any
document so admitted to be proved otherwise than by such admission.

(2) Where a party unreasonably neglects or refuses to admit a document after the service on him
of the notice to admit documents, the court may direct him to pay costs to the other party by way
of compensation.]

Rule 3A: Power of court to record admission

Notwithstanding that no notice to admit documents has been given under rule 2. the court may, at
any stage of the proceeding before it, of its own motion, call upon any party to admit any document
and shall, in such a case, record whether the party admits or refuses or neglects to admit such
document.

Rule 4: Notice to admit facts

Any party, may, by notice in writing, at any time not later than nine days before the day fixed for
the hearing, call on any other party to admit, for the purposes of the suit only, any specific fact or
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facts mentioned in such notice. And in case of refusal or neglect to admit the same within six days
after service of such notice, or within such further time as may be allowed by the court, the costs
of proving such fact or facts shall be paid by the party so neglecting or refusing, whatever the result
of the suit may be unless the court otherwise directs:

PROVIDED that any admission made in pursuance of such notice is to be deemed to be made only
for the purposes of this particular suit, and not as an admission to beused against the party on any
other occasion or in favour of any person other than the party giving the notice.

Rule 6: Judgment on admissions

(1) Where admissions of fact have been made either in the pleading or otherwise, whether orally
or in writing, the court may at any stage of the suit, either on the application of any party or of its
own motion and without waiting for the determination of any other question between the parties,
make such order or give such judgment as it may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1), a decree shall be drawn up in
accordance with the judgment and the decree shall bear the date on which the judgment was
pronounced.]

Rule 7: Affidavit of signature

An affidavit of the pleader or his clerk, of the due signature of any admissions made in pursuance
of any notice to admit documents or facts, shall be sufficient evidence of such admissions, if
evidence thereof is required.

Rule 8: Notice to produce documents

Notice to produce documents shall be in Form No. 12 in Appendix C, with such variations as
circumstances may require. An affidavit of the pleader, or his clerk, of the service of any notice to
produce, and of the time when it was served, with a cop y of the notice to produce, shall in all
cases be sufficient evidence of the service of the notice, and of the time when it was served.

Rule 9: Costs

If a notice to admit or produce specifies documents which are not necessary, the costs occasioned
thereby shall be borne by the party giving such notice.
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Malwa Strips (P) Ltd. v. Jyoti Ltd.

The object of obtaining admissions is to do away with the necessity of proving facts that are
admitted; and the judgment and decree may be passed on such admissions.

Premsuk Das v. Udairam,

it was held that the plaintiff could ask for a judgment on the portion admitted by the defendant.

Uttam Singh Duggal & Co. Ltd. v. United Bank of India

the Supreme Court held that where a claim is admitted, the court has jurisdiction to enter a
judgment for the plaintiff and to pass a decree on admitted claim.

Conclusion

The admissions are not conclusive in nature. They can be erroneous or gratuitous. Admissions
made can be withdrawn or explained away. It can be proved wrong. The context of the admission
can be made after hearing the pleadings in entirety. Oral admissions prevail over documentary or
records of rights.

3. Difference between judgment and decree.

Refer 10 marks qstn 5

4. Adjornment (2)

Introduction

The term adjourn implies a delay or to cease. Order XVII deals with adjournment. Order XVII of
CPC manages the circumstances when adjournment can happen and the procedure to be trailed by
the court during the adjournment of a court.

Meaning

An adjournment refers to a temporary pause or delay in a court hearing or trial. Requesting an

adjournment can be done by any party involved in a case, and it can also be granted by the court
for various reasons.
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ORDER XVII: ADJOURNMENTS

Rule 1: Court may grant time and adjourn hearing

(1) The court may, if sufficient cause is shown, at any stage of the suit, grant time to the parties or
to any of them, and may from time to time adjourn the hearing of the suit for reasons to be recorded
in writing:

PROVIDED that no such adjournment shall be granted more than three times to a party during
hearing of the suits.

(2) Costs of adjournment- In every such case the court shall fix a day for the further hearing of the
suit, and shall make such orders as to costs occasioned by the adjournment or such higher costs as
the court deems fit]:

[PROVIDED that,

(a) when the hearing of the suit has commenced, it shall be continued from day-to-day until all the
witnesses in attendance have been examined, unless the court finds that, for the exceptional reasons
to be recorded by it, the adjournment of the hearing beyond the following day is necessary,

(b) no adjournment shall be granted at the request of a party, except where the circumstances are
beyond the control of that party,

(c) the fact that the pleader of a party is engaged in another court, shall not be a ground for
adjournment,

(d) where the illness of a pleader or his inability to conduct the case for any reason, other than his
being engaged in another court, is put forward as a ground for adjournment, the court shall not
grant the adjournment unless it is satisfied that the party applying for adjournment could not have
engaged another pleader in time,

(e) where a witness is present in court but a party or his pleader is not present or the party or his
pleader, though present in court, is not ready to examine or cross-examine the witness, the court
may, if it thinks fit, record the statement of the witness and pass such orders as it thinks fit
dispensing with the examination-in-chief or cross-examination of the witness, as the case may be,
by the party or his pleader not present or not ready as aforesaid.]
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Rule 2: Procedure if parties fail to appear on day fixed

Where, on any day to which the hearing of the suit is adjourned, the parties or any of them fail to
appear, the court may proceed to dispose of the suit in one of the modes directed in that behalf by
Order IX or make such other orders as it thinks fit.

Rule 3: Court may proceed notwithstanding either party fails to produce evidence, etc.

Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause
the attendance of his witnesses, or to perform any other act necessary to the further progress of the
suit, for which time has been allowed, the court may, notwithstanding such default,

(a) if the parties are present, proceed to decide the suit forthwith; or

(b) if the parties are, or any of them is, absent, proceed under rule 2.

Thakur Singh v. Thakur Singh

The power to grant adjournment is not subject to any definite rules, but it should be exercised
judicially and reasonably and after considering the facts and circumstances of each case.

Salem Advocate Bar Assn. v. Union of India

the Supreme Court held that in extreme and exceptional circumstances, this strict rule does not
apply. The court also held that by "reading down" discretionary power to grant adjournment, the
validity of the provision can be sustained.

Junaram Bora v. Saruchoali Kuchuni,

While granting an adjournment, the court shall, direct the party seeking an adjournment to pay
costs or higher costs to the opposite party.

Conclusion
Adjournments which a famous issue in the working of courts by giving chance to parties without
adequate reason then this is an error on part of judges they do have a tact they can pass any order
which they think fit so regardless of whether the parties are not showing up the court can excuse
or pass an ex parte decree. Indeed, even this isn't working a sensible sum ought to be forced any
place court esteems fit so.
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5. Inter-pleader suit.

INTRODUCTION:

Apart from suits of ordinary civil nature disputed between the plaintiff and the defendant there
also exists a category of suits by the name of Interpleader Suits which are disputed between the
defendants only. Section 88 and Order XXXV of the Code of Civil Procedure (CPC) defines and
lays down relevant provisions with respect to the Interpleader suit. The fundamental idea behind
the interpleader suit is “A person Confronted with conflicting demands that he do or pay something
ought not to be liable twice

Meaning

"To interplead" means "to litigate with each other to settle a point concerning a third party”.

In Halsbury's Laws of England, it has been stated:

"Where a person is under liability in respect of a debt or in respect of any money, goods or chattels
and he is, or expects to be, sued for or in respect of that debt or money, or those goods or chattels,
by two or more persons making adverse claims thereto, he may apply to the court for relief by way
of interpleader.”

Sec 88: Where interpleader suit may be instituted

Where two or more persons claim adversely to one another the same debt, sum of money or other
property, movable or immovable, from another person, who claims no interest therein other than
for charges or costs and who is ready to pay or deliver it to the rightful claimant, such other person
may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision
as to the person to whom the payment or delivery shall be made and of obtaining indemnity for
himself:

PROVIDED that where any suit is pending in which the rights of all parties can properly be
decided, on such suit of interpleader shall be instituted.

Conditions: Section 88

Before an interpleader suit can be instituted, the following conditions must be satisfied:

(i) There must be some debt sum of money or other property movable or immovable in dispute;
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(ii) Two or more persons must be claiming it adversely to one another;

(iii) The person from whom such debt, money or property is claimed must not be claiming interest
therein other than the charges and costs and he must be ready and willing to pay or deliver it to the
rightful claimant; and

(iv) There must be no suit pending wherein the rights of rival claimants can be properly
adjudicated.

ORDER XXXV: INTERPLEADER

Rule 1: Plaint in interpleader suit

In every suit of interpleader the plaint shall, in addition to the other statements necessary for
plaints, state-

(a) that the plaintiff claims no interest in the subject matter in dispute other than for charges or
costs;

(b) the claims made by the defendants severally; and

(c) that there is no collusion between the plaintiff and any of the defendants.

Rule 2: Payment of thing claimed into court

Where the thing claimed is capable of being paid into court or placed in the custody of the court,
the plaintiff may be required to so pay or place it before he can be entitled to any order in the suit.

Rule 3: Procedure where defendant is suing plaintiff

Where any of the defendants in an interpleader suit is actually suing the plaintiff in respect of the
subject matter of such suit, the court in which the suit against the plaintiff is pending shall, on
being informed by the court in which the interpleader suit has been instituted, stay the proceedings
as against him; and his costs in the suit so stayed may be provided for in such suit; but if, and
insofar as, they are not provided for in that suit, they may be added to his costs incurred in the
interpleader suit.

Rule 4: Procedure at first hearing

(1) At the first hearing the court may

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(a) declare that the plaintiff is discharged from all liabilities to the defendants in respect of the
thing claimed, award him his costs, and dismiss him from the suit: or

(b) if it thinks that justice or convenience so require, retain all parties until the final disposal of the
suit.

(2) Where the court finds that the admissions of the parties or other evidence enable it to do so, it
may adjudicate the title to the thing claimed.

(3) Where the admissions of the parties do not enable the court so to adjudicate, it may direct-

(a) that an issue or issues between the parties be framed and tried, and

(b) that any claimant be made a plaintiff in lieu of or in addition to the original plaintiff, and shall
proceed to try the suit in the ordinary manner.

Rule 5: Agents and tenants may not institute interpleader suits

Nothing in this Order shall be deemed to enable to sue their principals, or tenants to sue their
landlords, for the purpose of compelling them to interplead with any persons other than persons
making claim through such principal or landlords.

Illustrations

(a) A deposits a box of jewels with B as his agent. C alleges that the jewels were wrongfully
obtained from him by A, and claims them from B. B cannot institute an interpleader suit against
A and C.

(b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making
the jewels a security for a debt due from himself to C. A afterwards alleges that C's debt is satisfied,
and C alleges the contrary. Both claim the jewels from B. B may institute an interpleader suit
against A and C

Rule 6: Charge for plaintiff's costs

Where the suit is properly instituted the court may provide for the costs of the original plaintiff by
giving him a charge on the thing claimed or in some other effectual way.
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Robinson v. Jenkins,

A person who has no interest in any debt, sum of money or other property, movable or immovable,
except the charges or costs and is ready to pay or deliver the property to the rightful claimant may
file an interpleader suit.

Jagganath v. Tulka Heru

A suit does not become an interpleader suit merely because the plaintiff requires the defendants to
interplead with each other as regards one of the prayers in the plaint.

CONCLUSION:

Thus the Interpleader suit serves as an efficient mechanism to not only aid the plaintiff but also
the courts in reducing the burden of unnecessary suits over the same matter. As already stated,
section 88 and Order XXXV of the CPC are fundamental provisions in this regard. The
Interpleader suit serves as a significant measure to protect a bonafide person from future condemn
in terms of non-fulfillment of his or her obligations due to unnecessary confusion arising due to
multiple claims.

6. Appearance and non-appearance of parties.

Refer 10 marks Qstn 1

7. Modes of execution.

Refer 10 marks Qstn 2

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8. Kinds of issues.

Introduction
The term "issue" in a civil case means a disputed question relating to rival contentions in a suit. It
is the focal point of disagreement, argument or decision. It is the point on which a case itself is
decided in favour of one side or the other, by the court.

Framing of issues is probably the most important part of the trail of a civil suit. For a correct and
accurate decision in the shortest possible time in a case, it is necessary to frame the correct and
accurate issues. Inaccurate and incorrect issues may kill the valuable time of the court.

In Siddhi Chunilal vs. Suresh Gopkishan, it was observed that if correct and accurate issues
were not framed, it leads to gross injustice, delay and waste of the court's valuable time in deciding
the matter.

If defendant makes no defense, framing and recording issue by the Court does not arise, in such a
case, a Court need not frame and record issue in as much as the defendant makes no defense at the
first hearing of the suit.

For example, a plaintiff says the defendant borrowed Rs 10 lakh from him. The defendant denies
it. It is an affirmation by one party and denial by the other. Then there arises a distinct dispute and
that dispute is termed an "issue". The court can then frame issues based on the facts of the case
and proceed with it.

Definition of issues
According to the dictionary meaning, "issue" means a point in question; an important subject o
debate, disagreement, discussion, argument or litigation. Issues mean a single material point of
fact or law in litigation that is affirmed by one party and denied by the other party to the suit and
that subject of the final determination of the proceedings.

In Howell v. Dering, the court held that, an issue is that which, if decided in favour of plantiff,
will in it give a right to relief; and if decided in favour of the defendant, will in itself be a defence.

Issues arise when a material proposition of fact or law is affirmed by one party and denied by the
other party to the suit.
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What are the material propositions?

According to Rule 1 (2), material propositions are those propositions of fact or law which a plaintiff
must allege in order to show a right to sue or a defendant must allege in order to constitute his
defense. Each material proposition affirmed by one party and denied by the other shall form the
subject - matter of a distinct issue.

Kinds of issues:
As per the Order 14 Rule 1(4) of the C.P.C. issues are of two kinds:
A. Issues of fact
B. Issues of Law.

Issues, however, may be mixed issues of fact and law.

Rule 2(1) Of Order 14 provides that where issues both of law and fact arise in the same suit,
notwithstanding that a case may be disposed of on a preliminary issue, the court should pronounce
judgment on all issues. But if the court is of the opinion that the case or any part thereof may be
disposed of on an issue of law only, it may try that issue first, if that issue relates to:
i. The jurisdiction of the court; or
ii. A bar to the suit created by any law for the time being in force,
For that purpose, the court may, if it thinks fit, postpone the settlement of the other issues until the
issues of law have been decided.

Object of framing of issues

The main object of framing issues is to ascertain the real dispute between the parties by narrowing
down the area of conflict and determine where the parties differ.

An obligation is cast on the court to read the plaint and the written statement and then determine
with the assistance of the learned counsel for the parties, material propositions of fact or of law on
which the parties are variance. The issue shall be formed on which the decision of the case shall
depend.

The evidence shall be confined to the issues. The object of an issue is to tie down the evidence and
arguments and decision to a particular question so that there may be no doubt on what the dispute
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is. The judgment then proceeding issue-wise would be able to tell precisely how the dispute was
decided.

In MB Sanghvi v Secretary, Madras Chillies Merchant, Supreme Court held that, the Court
should not determine an issue which does not arise on the pleadings and should not decide a suit
on a matter on which no issue has been raised. No issue need be framed on a point of law which
is perfectly clear.

In Akha Ram v LR of Ram Sahai, (13) the court held that where broader issue framed having
mixed facts, some facts relating to plaintiff and some facts relating to defendant, the trial Court
allowing plaintiff to lead evidence of defendant was not improper.

When issues are framed?

According to rule 1, issues are framed and recorded by the court at the first hearing after reading
the plaint, written statement, examining and hearing of parties and their pleaders.

Where the Court finds that the issues cannot be correctly framed without the examination of some
person not before the Court or without the inspection of some document not produced in the suit,
it may adjourn the framing of the issues to a future day (maximum of 7 days).

Court's power and Duty as to issues:

The duty to frame proper issues rests primarily on the Court. The judge must apply his mind with
due care, caution and diligence and understand the facts of the case before framing issues. The
pleaders appearing for both the parties also should assist the court in framing issues. If proper
issues are not framed, the parties may move the court to get the proper issues framed.
Issues must be specific and clear and not vague or evasive. The court may examine the witnesses
or inspect documents before framing issues, to amend the issues, to frame additional issues or to
strike out issues that may appear to it to be wrongly framed. Where the parties to a suit agree as
to the question of fact or law to be decided between them, they may, by agreement state the same
in the form of an issue. If the court is satisfied that the agreement is executed in good faith, it may
pronounce the judgment on such issue according to the terms of the agreement.
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Materials are required for framing of issues:

The issues may be framed by the Court from all or any of the following materials:
1. Allegations made on oath by the parties, or by any persons present on their behalf, or made
by the pleaders of such parties;
2. Allegations made in the pleadings or in answers to interrogatories delivered in the suit;
3. The contents of the documents produced by either party.

Amendment of issues framed

Order 14 Rule 5, C.P.C. empowers the court to amend issues framed or frame additional issues at
any stage of proceedings. Issues can be amended at any stage of the trail. They can also be amended
by appellate or revisional court.
Nagubai Ammal v. B. Shama Rao, Supreme Court observed that, a trail does not get vitiated on
wrong, improper or defective issues.

Omission to frame issues

Even though it is the duty of the court to frame proper issues, mere omission to frame an issue is
not necessarily fatal to the suit. Omission to frame an issue is an irregularity which may be or may
not be a material one. If such an omission affects the disposal of the suit on merits, the case must
be remanded to the trial court for a fresh trial.
Where the parties went to trail with full knowledge that a particular point was at issue, they have
not been prejudiced and substantial justice has been done, absence of an issue is not fatal to the
case so as to vitiate the proceedings.

Conclusion
Issues are very important not only for the parties but also for the Court. Thus framing of issues is
a very important stage of a civil trial. Parties are required to prove or disprove the issues framed
by the court, not the pleading. On the other side, court is also bound to give decision on each
framed issue. Therefore, the Court is not to decide those matters on which no issues have been
framed.
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9. Decree

Introduction

A decree is one of the frequently heard terms in Civil Matters. The adjudication of a courtroom of
law is divided into decree and orders. The term “decree” has been defined in section 2(2) of the
Code of Civil Procedure, 1908. The decree is a proper expression of adjudication by way of which
the courtroom determines the rights of parties concerning the matter in controversy or dispute. It
can be relating to any or all of the matter in controversy in the match.

Definition

Sec 2 (2): "decree" means the formal expression of an adjudication which, so far as regards the
Court expressing it, conclusively determines the rights of the parties with regard to all or any of
the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to
include the rejection of a plaint and the determination of any question within ³[xxx] section 144,
but shall not include

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Essential elements

In order that a decision of a court may be a "decree", the following ele- ments must be present:"

(i) There must be an adjudication;

(ii) Such adjudication must have been done in a suit;

(iii) It must have determined the rights of the parties with regard to all or any of the matters in
controversy in the suit;

(iv) Such determination must be of a conclusive nature; and

(v) There must be a formal expression of such adjudication

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(1) Adjudication-

For a decision of a court to be a decree, there must be an adjudication, i.e. a judicial determination
of the matter in dispute. If there is no judicial determination of any matter in dispute, it is not a
decree. Thus, a decision on a matter of an administrative nature, or an order dismissing a suit for
default of appearance of parties or dismissing an appeal for want of prosecution cannot be termed
as a decree inasmuch as it does not judicially deal with the matter in dispute. Further, such judicial
determination must be by a court. Thus, an order passed by an officer who is not a court is not a
decree.

(ii) Suit.

The expression "suit" is not defined in the Code. But in Hansraj Gupta v. Official Liquidators of
The Dehra Dun-Mussoorie Electric Tramway Co. Ltd., Their Lordships of the Privy Council have
defined the term in the following words, "The word 'suit' ordinarily means and apart from some
context must be taken to mean, a civil proceeding instituted by the presentation of a plaint.

(iii) Rights of parties in controversy.

The adjudication must have determined the rights of the parties with regard to all or any of the
mat- ters in controversy in the suit. The word "rights" means substantive rights of the parties and
not merely procedural rights. Thus, rights of the parties inter se relating to status, limitation,
jurisdiction, frame of suit, accounts, etc. are "rights of the parties" under this section.

(iv) Conclusive determination-

Such determination must be of a conclusive nature. In other words, the determination must be final
and conclusive as regards the court which passes it. Thus, an interlocutory order, which does not
decide the rights of the parties finally is not a decree.

(v) Formal expression.

There must be a formal expression of such ad- judication. All the requirements of form must be
complied with. The formal expression must be deliberate and given in the manner provided by
law. The decree follows the judgment and must be drawn up separately. Thus, if a decree is not
formally drawn up in terms of the judgment, no appeal lies from that judgment. But the decree
need not be in a particular form. Thus, a misdescription of a decision as an order which amounts
to a decree does not make it less than a decree.
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Classes of decrees

The Code recognises the following classes of decrees:

(i) Preliminary decree;

(ii) Final decree; and

(iii) Partly preliminary and partly final decree.

i) Preliminary decree-

Where an adjudication decides the rights of the parties with regard to all or any of the matters in
controversy in the suit, but does not completely dispose of the suit, it is a preliminary decree.

ii) Final decree-

A decree may be said to be final in two ways:

(i) when within the prescribed period no appeal is filed against the decree or the matter has been
decided by the decree of the highest court; and

(ii) when the decree, so far as regards the court passing it, completely disposes of the suit.

iii) Partly preliminary and partly final decree-

A decree may be partly preliminary and partly final, e.g. in a suit for possession of immovable
property with mesne profits, where the court:

(a) decrees possession of the property; and

(b) directs an enquiry into the mesne profits.

The former part of the decree is final, while the latter part is only preliminary because the final
decree for mesne profits can be drawn only after enquiry, and the amount due is ascertained. In
such a case, even though the decree is only one, it is partly preliminary and partly final.
 155

Phoolchand v. Gopal Lal,

wherein it has been observed that there is nothing in the Code of Civil Procedure which prohibits
passing of more than one preliminary decree, if cir- cumstances justify the same and it may be
necessary to do so.

Conclusion

The Code of Civil Procedure lays down provisions to pronounce and issue the choice of the Court
and decree is one among them. A decree within the decision of a court which determines the
rights at issue between the parties to suit. A decree are often preliminary, final or partly
preliminary and partly final. There is also an idea of the deemed decree. A decree is different from
order and judgment in some ways.
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UNIT 4

10 MARKS

1. What is temporary injunction? Explain the grounds and principles to grant a temporary
injunction.
2. Explain under what circumstances a reference can be made to High Court? (2)
3. State the procedure for instituting a suit by an indigent person. (3)
4. When Court can appoint receiver? Explain the power and duties of the receiver. (4)
5. State the rules regarding suits by or against minor and unsound persons.
6. What are the procedures for filing the suits by or against government or public officer.

6 MARKS

1. Arrest before judgment

2. Caveat. (2)
3. Temporary injunctions. (3)
4. Re-view
5. Revision. (2)
6. Inherent powers of the court
7. Appeals.
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10 MARKS

1. What is temporary injunction? Explain the grounds and principles to

grant a temporary injunction.

Introduction

A temporary injunction in CPC serves as a vital tool to maintain order and protect the interests of
parties involved in a dispute. This court-issued order, with a limited duration, is designed to either
prevent someone from taking specific actions or compel them to do certain things until a final
verdict is reached. The underlying principles of a temporary injunction revolve around ensuring
fairness and preventing irreparable harm during the course of litigation.

Meaning

An injunction is a judicial process whereby a party is required to do, or to refrain from doing, any
particular act. It is a remedy in the form of an order of the court addressed to a particular person
that either prohibits him from doing or continuing to do a particular act (prohibitory injunction);
or orders him to carry out a certain act (mandatory injunction). Order XXXIX deals with temporary
injunction.

Types

Injunctions are of two kinds:

(i) temporary; and

(ii) permanent.

Permanent injunction

A permanent injunction restrains a party forever from doing the specified act and can be granted
only on merits at the conclusion of the trial after hearing both the parties to the suit.

The rules for temporary injunctions are found in the Civil Procedure Code of 1908 and here’s what
they say:
• Section 94 of the law is about preventing interference with justice. Part (c) deals with giving
out temporary injunctions and has rules for making sure people follow them, like putting
someone in civil prison or selling their property to make them comply.
• Section 95 allows the court to consider giving money to the defendant if the plaintiff’s
claim gets dismissed.
 158

• Order 39 of the Civil Procedure Code (CPC) has a bunch of rules about temporary
injunctions.

ORDER XXXIX : TEMPORARY INJUNCTIONS

Rule 1: Cases in which temporary injunction may be granted

Where in any suit it is proved by affidavit or otherwise

(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any
party to the suit, or wrongfully sold in execution of a decree, or

(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to
¹[defrauding] his creditors,

[(c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff
in relation to any property in dispute in the suit,]

the court may by order grant a temporary injunction to restrain such act, or make such other order
for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or
disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the
plaintiff in relation to any property in dispute in the suit as the court thinks fit, until the disposal
of the suit or until further orders.

Rule 2: Injunction to restrain repetition or continuance of breach

(1) In any suit for restraining the defendant from committing a breach of contract or other injury
of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after
the commencement of the suit, and either before or after judgment, apply to the court for a
temporary injunction to restrain the defendant from committing the breach of contract or injury
complained of, or any breach of contract or injury of a like kind arising out of the same contract
or relating to the same property or right.

(2) The court may by order grant such injunction, on such terms, as to the duration of the
injunction, keeping an account, giving security, or otherwise, as the court thinks fit.
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Rule 2A: Consequence of disobedience or breach of injunction

(1) In the case of disobedience of any injunction granted or other order made under rule 1 or 2 or
breach of any of the terms on which the injunction was granted or the order made, the court
granting the injunction or making the order, or any court to which the suit or proceeding is
transferred, may order the property of the person guilty of such disobedience or breach to be
attached, and may also order such person to be detained in the civil prison for a term not exceeding
three months, unless in the meantime the court directs his release.

(2) No attachment made under this rule shall remain in force for more than one year, at the end of
which time, if the disobedience or breach continues, the property attached may be sold and out of
the proceeds, the court may award such compensation as it thinks fit to the injured party and shall
pay the balance, if any, to the party entitled thereto.]

Rule 3: Before granting injunction, court to direct notice to opposite party

The court shall in all cases, except where it appears that the object of granting the injunction would
be defeated by the delay, before granting an injunction, direct notice of the application for the same
to be given to the opposite party:

[PROVIDED that, where it is proposed to grant an injunction without giving notice of the
application to the opposite party, the court shall record the reasons for its opinion that the object
of granting the injunction would be defeated by delay, and require the applicant-

(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order
granting the injunction has been made, a copy of the application for injunction together with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents on which the applicant relies, and

(b) to file, on the day on which such injunction is granted or on the day immediately following that
day, an affidavit stating that the copies aforesaid have been so delivered or sent.]

Rule 3A: Court to dispose of application for injunction within thirty days

Where an injunction has been granted without giving notice to the opposite party, the court shall
make an endeavour to finally dispose of the application within thirty days from the date on which
 160

the injunction was granted; and where it is unable so to do, it shall record its reasons for such
inability.]

Rule 4: Order for injunction may be discharged, varied or set aside

Any order for an injunction may be discharged, or varied, or set aside by the court, on application
made thereto by any party dissatisfied with such order:

[PROVIDED that if in an application for temporary injunction or in any affidavit supporting such
application, a party has knowingly made a false or misleading state- ment in relation to a material
particular and the injunction was granted without giving notice to the opposite party, the court
shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary
so to do in the interests of justice:

PROVIDED FURTHER that where an order for injunction has been passed after giving to a party
an opportunity of being heard, the order shall not be discharged, varied or set aside on the
application of that party except where such discharge, variation or setting aside has been
necessitated by a a change change i in the circumstances, or unless the court is satisfied that the
order has caused undue hardship to that party.]

Rule 5: Injunction to corporation binding on its officers

An injunction directed to a corporation is binding not only on the corporation itself, but also on all
members and officers of the corporation whose personal action it seeks to restrain.

State of Orissa v. Madan Gopal

interim order can always be grant- ed in the aid of and as ancillary to the main relief available to
the party on final determination of his rights in a suit or any other proceeding. Therefore, a court
undoubtedly possesses the power to grant interim relief during the pendency of the suit.

Dorab Warden v. Sorab Warden

The court in the exercise of sound judicial discretion can grant or refuse to grant interim relief.

Rattu v. Mala,

It is not the plaintiff alone who can apply for an interim injunction. A defendant may also make an
application for grant of an injunction against the plaintiff.
 161

Meston School Society v. Kashi Nath,

An injunction may be issued only against a party and not against a stranger or a third party.

Conclusion

A temporary injunction in CPC is a court-issued order that temporarily restrains a party from taking
specific actions or compels them to do certain things for a limited period, typically until a final
decision is reached in a legal dispute. It aims to maintain the status quo, preventing irreparable
harm or injury to one party while a case is being litigated. To grant a temporary injunction, courts
assess whether there’s a prima facie case, a balance of convenience and the potential for irreparable
harm. It’s a legal tool used to ensure fairness and protect the rights of parties involved in ongoing
legal proceedings.
 162

2. Explain under what circumstances a reference can be made to High

Court? (2)

Introduction

Section 113 of Civil Procedure Code deals with the provision of reference. Under the provision of
Section 113, a lower or subordinate court can reach out to higher court for the doubt in order to
avoid the misinterpretation of the law which is called reference. Parties through an application can
move the reference to the High court. Lower Court can apply the provision of reference suo-moto
in case of any doubt with respect to any legal provision.

Meaning

The concept of reference in CPC occurs when a lower court seeks guidance from the High Court
on a legal matter. This typically happens when the lower court encounters reasonable doubt
regarding a legal question during a civil suit, appeal or execution proceeding. In simple terms, a
reference involves asking the High Court for its opinion on a legal issue.

Sec 113: Reference to High Court

Subject to such conditions and limitations as may be prescribed, any court may state a case and
refer the same for the opinion of the High Court, and the High Court may make such order thereon
as it thinks fit:

[PROVIDED that where the court is satisfied that a case pending before it involves a question as
to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act,
Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and
is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has
not been so declared by the High Court to which that Court is subordinate or by the Supreme Court,
the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for
the opinion of the High Court.

CONDITIONS

The right of reference, however, is subject to the conditions prescribed by Order 46 Rule 1 and,
unless they are fulfilled, the High Court cannot entertain a reference from a subordinate court. The
rule requires the following conditions to be satisfied to enable a subordinate court to make a
reference:
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(i) There must be a pending suit or appeal in which the decree is not subject to appeal or a pending
proceeding in execution of such decree;

(ii) A question of law or usage having the force of law must arise in the course of such suit, appeal
or proceeding; and

(iii) The court trying the suit or appeal or executing the decree must entertain a reasonable doubt
on such question.

Questions of law on which a subordinate court may entertain a doubt may be divided into two
classes:

(i) Those which relate to the validity of any Act, Ordinance or Regulation; and

(ii) Other questions.

In the latter case, the reference is optional, but in the former case it is obligatory if the following
conditions are fulfilled."

(i) It is necessary to decide such question in order to dispose of the case;

(ii) The subordinate court is of the view that the impugned Act, Ordinance or Regulation is ultra
vires; and

(iii) There is no determination either by the Supreme Court or by the High Court to which such
court is subordinate that such Act, Ordinance or Regulation is ultra vires.

Rule 1: Reference of question to High Court

Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal,
or where, in the execution of any such decree, any question of law or usage having the force of
law arises, on which the court trying the suit or appeal, or executing the decree, entertains
reasonable doubt, the court may, either of its own motion or on the application of any of the parties,
draw up a statement of the facts of the case and the point on which doubt is entertained, and refer
such statement with its own opinion on the point for the decision of the High Court.

Rule 2: Court may pass decree contingent upon decision of High Court
The court may either stay the proceedings or proceed in the case notwithstanding such reference,
and may pass a decree or make an order contingent upon the decision of the High Court on the
point referred,
 164

but no decree or order shall be executed in any case in which such reference is made until the
receipt of a copy of the judgement of the High Court upon the reference.

Rule 3: Judgment of High Court to be transmitted, and case disposed of accordingly

The High Court, after hearing, the parties if they appear and desire to be heard, shall decide the
point so referred, and shall transmit a copy of its judgment, under the signature of the Registrar, to
the court by which the reference was made; and such court shall, on the receipt thereof, proceed to
dispose of the case in conformity with the decision of the High Court.

Rule 4: Costs of reference to High Court

The costs (if any) consequent on a reference for the decision of the High Court shall be costs in
the case.

Rule 4A: Reference to High Court under proviso to section 113

The provisions of rules 2, 3 and 4 shall apply to any reference by the court under the proviso to
section 113 as they apply to a reference under rule 1.

Rule 5: Power to alter, etc., decree of court making reference

Where a case is referred to the High Court under rule 1 for under the proviso to section 113], the
High Court may return the case for amendment, and may alter, cancel or set aside any decree or
order which the court making the reference has passed or made in the case out of which the
reference arose, and make such order as it thinks fit.

Rule 6: Power to refer to High Court questions as to jurisdiction in small causes

(1) Where at any time before judgment a court in which a suit has been instituted doubts whether
the suit is cognizable by a court of small causes or is not so cognizable, It may submit the record
to the High Court with a statement of its reasons for the doubt as to the nature of the suit.

(2) On receiving the record and statement, the High Court may order the court either to proceed
with the suit or to return the plaint for presentation to such other court as it may in its order declare
to be competent to take cognizance of the suit.
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Rule 7: Power to District Court to submit for revision proceedings had under mistake as to
jurisdiction in small causes

(1) Where it appears to a District Court that a court subordinate thereto has, by reason of
erroneously holding a suit to be cognizable by a court of small causes or not to be so cognizable,
failed to exercise a jurisdiction vested in it by law, or exercised a jurisdiction not so vested, the
District Court may, and if required by a party shall, submit the record to the High Court with a
statement of its reasons for considering the opinion of the subordinate court with respect to the
nature of the suit to be erroneous.

(2) On receiving the record and statement the High Court may make such order in the case as it
thinks fit.

(3) With respect to any proceedings subsequent to decree in any case submitted to the High Court
under this rule, the High Court may make such order as in the circumstance appears to it to be just
and proper.

(4) A court subordinate to a District Court shall comply with any requisition which the District
Court may make for any record or information for the purposes of this rule.

Chhotubhai v, Bai Kashi

The underlying object for the provision for reference is to enable subordinate courts to obtain in
non-appealable cases the opinion of the High Court in the absence of a question of law and thereby
avoid the commission of an error which could not be remedied later on.

Ralia Ram v. Sadh Ram

A reference can be made on a question of law only when the judge trying the case entertains a
reasonable doubt about it.

S.K. Roy v. Board of Revenue

In dealing with and deciding the reference the High Court is not confined to the ques- tions referred
by a subordinate court. If a new aspect of law arises, the High Court can consider it." The High
Court may answer the question referred to it and send back the case to the referring court for
disposal in accordance with law.
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3. State the procedure for instituting a suit by an indigent person. (3)

Introduction

In India, there are so many people, who are poor and not able to get two-time food. So in these
situations, how can we expect that they are able to get the justice from the court without money.
Indian law provides an equal opportunity before the law and equality before the law all the citizens
of India. It is the duty of the law to provide free Legal Aid to the persons who are needed. For
providing equal justice to all the people of the India CPC has provided the provision regarding the
indigent person under order 33.

Definition
Order 33 Rule 1:
A person is an indigent person,

(a) if he is not possessed of sufficient means (other than property exempt from attachment in
execution of a decree and the subject matter of the suit) to enable him to pay the fee prescribed by
law for the plaint in such suit, or

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees
other than the property exempt from attachment in execution of a decree, and the subject matter of
the suit.

ORDER XXXIII: '[SUITS BY INDIGENT PERSONS]

Rule 1: Suits may be instituted by [indigent person]

Subject to the following provisions, any suit may be instituted by an [indigent person].

[Explanation 1: A person is an indigent person,

(a) if he is not possessed of sufficient means (other than property exempt from attachment in
execution of a decree and the subject matter of the suit) to

enable him to pay the fee prescribed by law for the plaint in such suit, or

(b) where no such fee is prescribed, if he is not entitled to property worth one thousand rupees
other than the property exempt from attachment in execution of a decree, and the subject matter of
the suit.
 167

Explanation II: Any property which is acquired by a person after the presentation of his application
for permission to sue as an indigent person, and before the decision of the application, shall be
taken into account in considering the question whether or not the applicant is an indigent person.

Explanation III: Where the plaintiff sues in a representative capacity, the question whether he is
an indigent person shall be determined with reference to the means possessed by him in such
capacity.]

Rule 1A: Inquiry into the means of an indigent person

Every inquiry into the question whether or not a person is an indigent person shall be made, in the
first instance, by the chief ministerial officer of the court, unless the court otherwise directs, and
the court may adopt the report of such officer as its own finding or may itself make an inquiry into
the question.]

Rule 2: Contents of application

Every application for permission to sue as an ²(indigent person] shall contain the particulars
required in regard to plaints in suits; a schedule of any movable or immovable property belonging
to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be singed
and verified in the manner prescribed for the signing and verification of pleadings.

Rule 3. Presentation of application

Notwithstanding anything contained in these rules, the application shall be presented to the court
by the appli applicant in person, unless he is exempted from appearing in court, in which case the
application may be presented by an authorised agent who can answer all material questions relating
to the application, and who may be examined in the same manner as the party represented by him
might have been examined had such party attended in person:

[PROVIDED that, where there are more plaintiffs than one, it shall be sufficient if the application
is presented by one of the plaintiffs.]

Rule 4: Examination of applicant

(1) Where the application is in proper form and d duly presented, the court may, if it thinks fit,
examine the applicant, or his agent when the applicant is allowed to appear by agent, regarding the
merits of the claim and the property of the applicant.
 168

(2) If presented by agent, court may order applicant to be examined by commission- Where the
application is presented by an agent, the court may, if it thinks fit, order that the applicant be
examined by a commission in the manner in which the examination of an absent witness may be
taken.

Rule 5: Rejection of application

The court shall reject an application for permission to sue as [an indigent person]-

(a) where it is not framed and presented in the manner prescribed by rules 2 and 3, or

(b) where the applicant is not "[an indigent person), or

(c) where he has, within two months next before the presentation of the application, disposed of
any property fraudulently or in order to be able to apply for permission to sue as (an indigent
person]:

[PROVIDED that no application shall be rejected if, even after the value of the property disposed
of by the applicant is taken into account, the applicant would be entitled to sue as an indigent
person), or

(d) where his allegations do not show a cause of action, or

(e) where he has entered into any agreement with reference to the subject matter of the proposed
suit under which any other person has obtained an interest in such subject matter, [or]

[(f) where the allegations made by the applicant in the application show that the suit would be
barred by any law for the time being in force, or

(g) where any other person has entered into an agreement with him to finance the litigation

Rule 6: Notice of day for rece for receiving evidence of applicant's indigency

Where the court sees no reason to reject the application on any of the grounds stated in rule 5, it
shall fix a day (of which at least ten days' clear notice shall be given to the opposite party and the
government pleader) for receiving such evidence as the applicant may adduce in proof of his
indigency, and for hearing any evidence which may be adduced in disproof thereof
 169

Rule 7: Procedure at hearing

(1) On the day so fixed or as soon thereafter as may be convenient, the court shall examine e the
witnesses (if any) produced by either party, and a may examine the applicant or his agent, and shall
make [a full record of their evidence). may adduce in proof of his indigency, and for hearing any
evidence which may be

[(1A) The examination of the witnesses under sub-rule (1) shall be confined to the matters
specified in clause (b), clause (c) and clause (e) of rule 5 but the examination of the applicant or
his agent may relate to any of the matters specified in rule 5.]

(2) The court shall also hear any argument which the parties may desire to offer of on the question
whether, on the face of the application and of the evidence (if any) taken by the court (under rule
6, or under this rule], the applicant is or is not subject to any of the prohibitions specified in rule
5.

(3) The court shall then either allow or refuse to allow the applicant to sue as [an indigent person].

Rule 8: Procedure if application admitted

Where the application is granted, it shall be numbered and registered, and shall be deemed the
plaint in the suit, and the suit shall proceed in all other respects as a suit instituted in the ordinary
manner, except that t the plaintiff shall not be liable to pay any court fee or fees payable for service
of process] ice of process] in respecto tof any petition, appointment of a pleader or other
proceedings connected with the suit.

Rule 9: Withdrawal of permission to sue as "[an indigent person]

The court may, on the application of the defendant, or of the government pleader, of which seven
days' clear notice in writing has been given to the plaintiff, order that the permission granted to the
plaintiff to sue as an indigent person be withdrawn-

(a) if he is guilty of vexatious or improper conduct in the course of the suit;

(b) if it appears that his means are such that he ought not to continue to sue as *[an indigent person];
or

(c) if he has entered into any agreement with reference to the subject matter of the suit under which
any other person has obtained an interest in such subject matter.
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Rule 9A: Court to assign a pleader to an unrepresented indigent person

(1) Where a person, who is permitted to sue as an indigent person, is not represented by a pleader,
the court may, if the circumstances of the case so require, assign a pleader to him.

(2) The High Court may, with the previous approval of the State Government, make rules
providing for-

(a) the mode of selecting pleaders to be assigned under sub-rule (1);

(b) the facilities to be provided to such pleaders by the court

(c) any other matter which is required to be or may be provided by the rules for giving effect to
the provisions of sub-rule (1).]

Rule 10: Costs where lindigent person] succeeds

Where the plaintiff succeeds in the suit, the court shall calculate the amount of court fees which
would have been paid by the plaintiff if he had not been permitted to sue as [an indigent person];
such amount shall be recoverable by the [State Government] from any party ordered by the decree
to pay the same, and shall be a first charge on the subject matter of the suit.

Rule 11: Procedure where [indigent person] fails

Where the plaintiff fails in the suit or the permission granted to him to sue as lan indigent person]
has been withdrawn, or where the suit is withdrawn or dismissed,-

(a) because the summons for the defendant to appear and answer has not been served upon him in
consequence of the failure of the plaintiff to pay the court fee or postal charges (if any) chargeable
for such service for to present copies of the plaint or concise statement), or

(b) because the plaintiff does not appear when the suits is called on for hearing, the court shall
order the plaintiff, or any person added as a co-plaintiff to the suit, to pay the court fees which
would have been paid by the plaintiff if he had not been permitted to sue as [an indigent person.]

Rule 11A: Procedure where [an indigent person's] suit abates

Where the suit abates by reason of the e death of the plaintiff or of any person added as a co-
plaintiff, the court shall order that the amount of court fees which would have been paid by the
 171

plaintiff if he had not been permitted to sue as [an indigent person] shall be recoverable by the
State Government from the estate of the deceased plaintiff.

Rule 12: State Government may apply for payment of court fees

The [State Government] shall have the right at any time to apply to the court to make an order for
the payment of court fees under rule 10, rule 11 or rule 11A.

Rule 13: State Government deemed to be a party

All matters arising between the [State Government] and any part to the suit under rule 10, rule 11,
rule 11A or rule 12 shall be deemed to be questions arising between the parties to the suit within
the meaning of section 47.

Rule 14: Recovery of amount of court fees

Where an order is made under rule 10, rule 11 or rule 11A, the court shall forthwith cause a copy
of the decree or order to be forwarded to the Collector who may, without prejudice to any other
mode of recovery, recover the amount of court fees specified therein from the person or property
liable for the payment as if it were an arrear of land revenue.

Rule 15: Refusal to allow applicant to sue as lan indigent person] to bar subsequent
application of like nature

An order refusing to allow the applicant to sue as (an indigent person] shall be a bar to any
subsequent application of the like nature by him in respect of the same right to sue: but the
applicant shall be at liberty to institute a suit in the ordinary manner in respect of such right

PROVIDED that the plaint shall be rejected if he does not pay, either at the time of the institution
of the suit or within such time thereafter as the court may allow], the the costs (if any) incurred by
[State Government] a and by the opposite party in opposing his application for leave to sue as [an
indigent person].

Rule 15A: Grant of time for payment of court fee

Nothing contained in rule 5, rule 7 or rule 15 shall prevent a court, while rejecting an application
under rule 5 or refusing an application under rule 7, from granting time to the applicant to pay the
requisite court fee within such time as may be fixed by the court or extended by it from time to
time; and upon such payment and on payment of the costs referred to in [xxx] rule 15 within that
 172

time, the suit shall be deemed to have been instituted on the date on which the application for
permission to sue as an indigent person was presented.]

Rule 16: Costs

The costs of an application for permission to sue as an indigent person] and of an inquiry into
indigency shall be costs in the suit.

Rule 17: Defence by an indigent person

Any defendant, who desires to plead a set-off or counter-claim, may be allowed to set up such
claim as an indigent person, and the rules contained in this Order shall, so far as may be, apply to
him as if he were a plaintiff and his written statement were a plaint.

Rule 18: Power of government to provide for free legal services to indigent persons

(1) Subject to the provisions of this Order, the Central or State Government may make such
supplementary provisions as it thinks fit for providing free legal services to those who have been
permitted to sue as indigent persons.

(2) The High Court may, with the previous approval of the State Government, make rules for
carrying out the supplementary provisions made by the Central or State Government for providing
free legal services to indigent persons referred to in sub-rule (1), and such rules may include the
nature and extent of such legal services, the conditions under which they may be made available,
the matters in respect of which, and the agencies through which, such services may be rendered.

Conclusion

It has been observed that Order XXXIII, permits the destitute, impoverished, and downtrodden,
who meet the criteria of an indigent person as provided by Order XXXIII, to seek justice by
exempting them from paying the required Court fees. Order XXXIII further authorizes such poor
people to file a suit in their own name.
 173

4. When Court can appoint receiver? Explain the power and duties of the
receiver. (4)

Introduction

Order 40 deals with the provisions in regard to appointment of receiver. The court can appoint
receiver whenever the court is of the opinion that either party should not hold the property in
dispute. The court can appoint a receiver before or after a decree and can remove any person from
the possession or custody of the property and commit the same property in the custody or
management of the receiver.

Meaning

The term "receiver" is not defined in the Code of Civil Procedure. Stated simply, a receiver is one
who receives money of another and renders account. 154 According to Kerr, he is "an impartial
person ap- pointed by the court to collect and receive, pending the proceedings, the rents, issues
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”.

ORDER XL: APPOINTMENT OF RECEIVERS

Rule 1: Appointment of receivers

(1) Where it appears to the court to be just and convenient, the court may by order-

(a) appoint a receiver of any property, whether before or after decree;

(b) remove any person from the possession or custody of the property;

(c) commit the same to the possession, custody or management of the receiver: and

(d) confer upon the receiver all such powers, as to bringing and defending suits and for the
realization, management, protection, preservation and improvement of the property, the collection
of the rents and profits thereof, the application and disposal of such rents and profits, and the
execution of

documents as the owner himself has, or such of those powers as the court thinks fit.
 174

(2) Nothing in this rule shall authorise the court to remove from the possession or custody of
property any person whom any party to the suit has not a present right so to remove.

Rule 2: Remuneration

The court may by general or special order fix the amount to be paid as remuneration for the services
of the receiver.

Rule 3: Duties

Every receiver so appointed shall-

(a) furnish such security (if any) as the court thinks fit, duly to account for what he shall receive
in respect of the property;

(b) submit his accounts at such periods and in such form as the court directs;

(c) pay the amount due from him as the court directs; and

(d) be responsible for any loss occasioned to the property by his wilful default or gross negligence.

Rule 4: Enforcement of receiver's duties

Where a receiver-

(a) fails to submit his accounts at such periods and in such form as the court directs, or

(b) fails to pay the amount due from him as the court directs, or

(c) occasions loss to the property by his wilful default or gross negligence,

the court may direct his property to be attached and may sell such property, and may apply the
proceeds to make good any amount found to be due from him or any loss occasioned by him, and
shall pay the balance (if any) to the receiver.

Rule 5: When Collector may be appointed receiver

Where the property is land paying revenue to the Government, or land of which the revenue has
been assigned or redeemed, and the court considers that the interests of those concerned will be
 175

promoted by the management of the Collector, the court may, with the consent of the Collector,
appoint him to be receiver of such property.

Powers: Rule 1(d)

A receiver is an officer or representative of the court and he functions under its directions. The
court may confer upon the receiver any of the following powers:

(i) to institute and defend suits;

(ii) to realize, manage, protect, preserve and improve the property;

(iii) to collect, apply and dispose of the rents and profits;

(iv) to execute documents; and

(v) such other powers as it thinks fit.

S.B. Industries v. United Bank of India

But he has no power except such as are conferred upon him by the order by which he was
appointed. It is open to a court not to confer all of the above powers. They are conditioned by the
terms of his appointment.

Balbir Anand v. Ram Jawaya

But even when full powers are conferred on him, he should take the advice of the court in all
important matters if he wants to protect himself.

Kanhaiyalal v. Dr. D.R. Banaji

A receiver cannot sue or be sued without the leave of the court.

Conclusion

The receiver plays an important role whenever the court requires the receiver to manage the subject
matter in a suit to protect and preserve it till the time, the court decrees the suit. The receiver is an
officer of the courts and the subject matter managed by him is considered to be in custody of the
law. The court appoints a receiver when the court is of the opinion that neither of the party should
manage the property till the time the matter is decided.
 176

5. State the rules regarding suits by or against minor and unsound persons.

Introduction

A legal system that bases itself in justice, equity and good conscience must have provisions to
ensure that fair justice is meted out to all sections of citizens that come before it. Naturally, since
all citizens are not equally placed, special provisions need to be made for some to ensure protection
of their rights. Minors and Persons of Unsound Mind are persons that can be easily exploited due
to their mental incapacity, anticipating that they might be cheated, ill-treated or trapped in a
fraudulent device, there are several provisions to ensure their protection. Order XXXII of the
Code of Civil Procedure, 1908 deals with SUITS BY OR AGAINST MINORS AND PERSONS
OF UNSOUND MIND.

Definition

"minor" means a person who has not attained his majority within the meaning of section 3 of the
Indian Majority Act, 1875 (9 of 1875),

ORDER XXXII SUITS BY OR AGAINST MINORS AND PERSONS OF UNSOUND MIND

Rule 1: Minor to sue by next friend

Every suit by a minor shall be instituted in his name by a person who in such suit shall be called
the next friend of the minor.

[Explanation: In this Order, "minor" means a person who has not attained his majority within the
meaning of section 3 of the Indian Majority Act, 1875 (9 of 1875), where the suit relates to any of
the matters mentioned in clauses (a) and (b) of section 2 of that Act or to any other matter.]

Rule 2: Where suit is instituted without next friend, plaint to be taken off the file

(1) Where a suit is instituted by or on behalf of a minor without a next friend, the defendant may
apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by
whom it was presented.

(2) Notice of such application shall be given to such person, and the court, after hearing his
objections (if any), may make such order in the matter as it thinks fit.
 177

Rule 2A: Security to be furnished by next friend when so ordered

(1) Where a suit has been instituted on behalf of the minor by his next friend, the court may, at any
stage of the suit, either of its own motion or on the application of any defendant, and for reasons
to be recorded, order the next friend to give security for the payment of all costs incurred or likely
to be incurred by the defendant.

(2) Where such a suit is instituted by an indigent person, the security shall include the court fees
payable to the government.

(3) The provisions of rule 2 of Order XXV shall, so far as may be, apply to a suit where the court
makes an order under this rule directing security to be furnished.]

Rule 3: Guardian for the suit to be appointed by court for minor defendant

(1) Where the defendant is a minor, the court, on being satisfied of fact of his minority, shall
appoint a proper person to be guardian for the suit for such minor.

(2) An order for the appointment of a guardian for the suit may be obtained upon application in
the name and on behalf of the minor or by the plaintiff.

(3) Such application shall be supported by an affidavit verifying the fact that the proposed guardian
has no interest in the matters in controversy in the suit adverse to that of the minor and that he is a
fit person to be so appointed.

(4) No order shall be made on any application under this rule except upon notice

[xxx] to any guardian of the minor appointed ppointed or declared by an authority competent in
that behalf, or, where there is no such guardian, lupon notice to the father, or where there is no
father, to the mother, or where there is no father or mother, or other natural guardian] of the minor,
or, where there is [no father, mother, or other natural guardian), to the person in whose care the
minor is, and after hearing any objection which may be urged on behalf of any person served with
notice under this sub-rule.

(4A): The court may, in any case, if it thinks fit, issue notice under sub-rule (4) to the minor also.

(5) A person appointed under sub-rule (1) to be guardian for the suit for a minor shall, unless his
appointment is terminated by retirement, removal or death, continue as such throughout all
proceedings arising out of the suit including proceedings in any Appellate or Revisional Court and
any proceedings in the execution of a decree.
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Rule [3A: Decree against minor not to be set aside unless prejudice has been caused to his
interest

(1) No decree passed against a minor shall be set aside merely on the ground that the next friend
or guardian for the suit of the minor had an interest in the subject matter of the suit adverse to that
of the minor, but the fact that by reason of such adverse interest of the next friend or guardian for
the suit, prejudice has been caused to the interests of the minor, shall be a ground for setting aside
the decree.

(2) Nothing in this rule shall preclude the minor from obtaining any relief available under any law
by reason of the misconduct or gross negligence on the part of the next friend or guardian for the
suit resulting in prejudice to the interests of the minor.]

Rule 4: Who may act as next friend or be appointed guardian for the suit

(1) Any person who is of sound mind and has attained majority may act as next friend of a minor
or as his guardian for the suit:

PROVIDED that the interest of such person is not adverse to that of the minor and that he is not,
in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff.

(2) Where a minor has a guardian appointed or declared by competent authority, no person other
than such guardian shall act as the next friend of the minor or be appointed his guardian for the
suit unless the court considers, for reasons to be recorded, that it is for the minor's welfare that
another person be permitted to act or be appointed, as the case may be.

(3) No person shall without his consent [in writing] be appointed guardian for the suit.

(4) Where there is no other person fit and willing to act as guardian for the suit, the court may
appoint any of its officers to be such guardian and may direct that the costs to be incurred by such
officer in the performance of his duties as such guardian shall be borne either by the parties or by
any one or more of the parties to the suit, or out of any fund in court in which the minor is
interested, Hor out of the property of the minor] and may give directions for the repayment or
allowance of such costs as justice and the circumstances of the case may require.

Rule 5: Representation of minor by next friend or guardian for the suit

(1) Every application to the court on behalf of a minor, other than an application under rule 10,
sub-rule (2), shall be made by his next friend or by his guardian for the suit.
 179

(2) Every order made in a suit or on any application, before the court in or by which a minor is in
any way concerned or affected, without such minor being represented by a next friend or guardian
for the suit, as the case may be, may be discharged, and, where the pleader of the party at whose
instance such order was obtained knew, or might reasonably have known, the fact of such minority,
with costs to be paid by such pleader.

Rule 6: Receipt by next friend or guardian for the suit of property under decree for minor

(1) A next friend or guardian for the suit shall not, without the leave of the court, receive any
money or other movable property on behalf of a minor either-

(a) by way of compromise before decree or order, or

(b) under a decree or order in favour of the minor.

(2) Where the next friend or guardian for the suit has not been appointed or declared by competent
authority to be guardian of the property of the minor, or, having been so appointed or declared, is
under any disability known to the court to receive the money or other movable property, the court
shall, if it grants him leave to receive the property, require such security and give such directions
as will, in its opinion, sufficient- ly protect the property from waste and ensure its proper
application:

[PROVIDED that the court may, for reasons to be recorded, dispense with such security while
granting leave to the next friend or guardian for the suit to receive money or other movable
property under a decree or order, where such next friend or guardian-

(a) is the manager of a Hindu undivided family and the decree or order relates to the property or
business of the family; or

(b) is the parent of the minor.]

Rule 7: Agreement or compromise by next friend or guardian for the suit

(1) No next friend or guardian for the suit shall, without the leave of the court, expressly recorded
in the proceeding, enter into any agreement or compromise on behalf of a minor with reference to
the suit in which he acts as next friend or guardian.

[(1A) An application for leave under sub-rule (1) shall be accompanied by an affidavit of the next
friend or the guardian for the suit, as the case may be, and also, if the minor is represented by a
 180

pleader, by the certificate of the pleader, to the effect that the agreement or compromise proposed
is, in his opinion, for the benefit of the minor.

PROVIDED that the opinion so expressed, whether in the affidavit or in the certificate shall not
preclude the court from examining whether the agreement or compromise proposed is for the
benefit of the minor.]

(2) Any such agreement or compromise entered into without the leave of the court so recorded
shall be voidable against all parties other than the minor.

Rule 8: Retirement of next friend

(1) Unless otherwise ordered by the court, a next friend shall not retire without first Procuring a fit
person to be put in his place and giving security for the costs already incurred.

(2) The application for the appointment of a new next friend shall be supported by an affidavit
showing the fitness s of the person proposed, and also that adverse to that of the minor

Rule 9: Removal of next friend

(1) Where the interest of the next friend of a minor is adverse to that of the minor or where he is
so connected with a defendant whose interest is adverse to that of the minor as to make it unlikely
that the minor's interest will be properly protected by him, or where he does not do his duty, or
during the pendency of the suit, ceases to reside within [India], or for any other sufficient cause,
application may be made on behalf of the minor or by a defendant for his removal; and the court,
if satisfied of the sufficiency of the cause assigned, may order the next friend to be removed
accordingly, and make such other order as to costs as it thinks fit.

(2) Where the next friend is not a guardian appointed or declared by an authority competent in this
behalf, and an application is made by a guardian so appointed or declared, who desires to be
himself appointed i f appointed in the place of the next friend, the court shall remove the next
friend unless it considers, for reasons to be recorded by it, that the guardian ought not to be
appointed the next friend of the minor, and shall thereupon appoint the a he applicant to be next
friend in his place upon such terms as to the costs already incurred in the suit as it thinks fit.

Rule 10: Stay of proceedings on removal, etc., of next friend

(1) On the retirement, removal or death of the next friend of a minor, further proceedings shall be
stayed until the appointment of a next friend in his place.
 181

(2) Where the pleader of such minor omits, within a reasonable time, to take steps to get a new
next friend appointed, any person interested in the minor or in the matter in issue may apply to the
court for the appointment of one, and the court may appoint such person as it thinks fit.

Rule 11: Retirement, removal or death of guardian for the suit

(1) Where the guardian for the suit desires to retire or does not do his duty, or where other sufficient
ground is made to appear, the court may permit such guardian to retire or may remove him, and
may make such order as to costs as it thinks fit.

(2) Where the guardian for the suit retires, dies or is removed by the court during the pendency of
the suit, the court shall appoint a new guardian in his place.

Rule 12: Course to be followed by minor plaintiff or applicant on attaining majority

(1) A minor plaintiff or a minor not a party to a suit on whose behalf an application is pending
shall, on attaining majority, elect whether he will proceed with the suit or application.

(2) Where he elects to proceed with the suit or application, he shall apply for an order discharging
the next friend and for leave to proceed in his own name.

(3) The title of the suit or application shall in such case be corrected so as to read henceforth thus:-

"A.B., late a minor, by C.D., his next friend, but now having attained majority"

(4) Where he elects to abandon the suit or application, he shall, if a sole plaintiff or sole applicant,
apply for an order to dismiss the suit or application on repayment of the costs incurred by the
defendant or opposite party or which may have been paid by his next friend.

(5) Any application under this rule may be made ex parte; but no order discharging a next friend
and permitting a minor plaintiff to proceed in his own name shall be made without notice to the
next friend.

Rule 13: Where minor co-plaintiff attaining majority desires to repudiate suit

(1) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to
have his name struck out as co-plaintiff; and the court, if it finds that he is not a necessary party,
shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit.
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(2) Notice of the application shall be served on the next friend, on any co-plaintiff and on the
defendant.

(3) The costs of all parties of such application, and of all or any proceedings theretofore had in the
suit, shall be paid by such persons as the court directs.

(4) Where the applicant is a necessary party to the suit, the court may direct him to be made a
defendant.

Rule 14: Unreasonable or improper suit

(1) A minor on attaining majority may, if a sole plaintiff, apply that a suit instituted in his name
by his next friend be dismissed on the ground that it was unreasonable or improper.

(2) Notice of the application shall be served on all the parties concerned; and the court, upon being
satisfied of such unreasonableness or impropriety, may grant the application and order the next
friend to pay the costs of all parties in respect of the application and of anything done in the suit,
or make such other order as it thinks fit.

Rule 15: Rules 1 to 14 (except rule 2A) to apply to persons of unsound mind

Rules 1 to 14 (except rule 2A) shall, so far as may be, apply to persons adjudged, before or during
the pendency of the suit, to be of unsound mind and shall also apply to persons who, though not
so adjudged, are found by the court on enquiry to be incapable, by reason of any mental infirmity,
of protecting their interest when suing or being sued.

Rule 16: Saving

(1) Nothing contained in this Order shall apply to the Ruler of a foreign State suing or being sued
in the name of his State, or being sued by the direction of the Central Government in the name of
an agent or in any other name.

(2) Nothing contained in this Order shall be construed as affecting or in any way derogating from
the provisions of any local law for the time being in force relating to suits by or against minors or
by or against lunatics or other persons of unsound mind.]

Ramchandar Singh v. B. Gopi Krisima

Order 32 has been specially enacted to protect the interests of minors and persons of unsound mind
and to ensure that they are repre- sented in suits or proceedings by persons who are qualified to act
as such.
 183

Ram Chandra v. Man Singh

a decree passed against a minor or a lunatic without appointment of a guard- ian is a nullity and is
void and not merely voidable

Bishundeo Narain v. Seogeni Rai, Kaushalya Devi v. Baijnath Sayal

An agreement or compromise entered into without the leave of the court is voidable at the instance
of the minor. Once such an agreement or compromise is avoided by a minor, it has no effect at all

Conclusion

Minors in the public sphere exist as unprotected or vulnerable entities, and they require the help
of their parents and guardians to survive and advance their interests in society. The legal institution
is well aware of this incapability of minors or other persons who, by reason of unsoundness of
mind, or any physical or mental infirmity, are not able to raise their voices for their protection of
rights. Order 32 of the CPC specifically aspires to resolve this issue by entitling them with certain
rights to sue or appeal in court upon any violation of their civil rights.
 184

6. What are the procedures for filing the suits by or against government or
public officer.

Introduction

Section 79, Section 80 and Order XXVII of the Civil Procedure Code, 1908 (CPC) deal with the
procedure where the suits are brought by or against the Government or Public officers acting in an
official capacity. Suits by or against the government or public officials in their official capacity
are special cases as the procedures which have to be observed while instituting a plaint vary from
the usual procedures which are carried out in accordance with civil suits for private individuals.

Definition

Sec 2(17) "public officer" means a person falling under any of the following descriptions, namely:

(a) every Judge;

(b) every member of '[an All India Service];

(c) every commissioned or gazetted officer in the military, [naval or air] forces of [the Union]
while serving under the Government;

(d) every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on
any matter of law or fact, or to make, authenticate or keep any document, or to take charge or
dispose of any property, or to execute any judicial process, or to administer any oath, or to interpret,
or to preserve order, in the Court, and every person especially authorized by a Court of Justice to
perform any of such duties;

(e) every person who holds any office by virtue of which he is empowered to place or keep any
person in confinement;

(f) every officer of the Government whose duty it is, as such officer, to prevent offences, to give
information of offences, to bring offenders to justice, or to protect the public health, safety or
convenience;

(g) every officer whose duty it is, as such officer, to take, receive, keep or expend any property on
behalf of the Government, or to make any survey, assessment or contract on behalf of the
Government, or to execute any revenue process, or to investigate, or to report on, any matter
affecting the pecuniary interests of the Government, or to make, authenticate or keep any document
 185

relating to the pecuniary interests of the Government, or to prevent the infraction of any law for
the protection of the pecuniary interests of the Government; and

(h) every officer in the service or pay of the Government, or remunerated by fees or commission
for the performance of any public duty;

Sec 79: Suits by or against Government

In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the
case may be, shall be-

(a) in the case of a suit by or against the Central Government, [the Union of India), and

(b) in the case of a suit by or against a State Government, the State.]

Sec 80: Notice

(1)][Save as otherwise provided in sub-section (2), no suit shall be instituted] Jagainst the
Government (including the Government of the State of Jammu and Kashmir)] or against a public
officer in respect of any act purporting to be done by such public officer in his official capacity,
until the expiration of two months next after notice in writing has been delivered to, or left at the
office of-

(a) in the case of a suit against the Central Government, except where it relates to a railway, a
Secretary to that Government;

(b) in the case of a suit against the Central Government where it relates to a railway, the General
Manager of that railway;

[(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief
Secretary to that Government or any other officer authorised by that Government in this behalf;]

(c) in the case of a suit against Jany other State Government), a Secretary to that Government or
the Collector of the district; and, in the case of a public officer, delivered to him or left at his office,
stating the cause of action, the name, description and place of residence of the plaintiff and the
relief which he claims; and the plaint shall contain a statement that such notice has been so
delivered or left.

(2) A suit to obtain an urgent or immediate relief against the Government (includ- ing the
Government of the State of Jammu and Kashmir) or any public officer in respect of any act
 186

purporting to be done by such public officer in his official capacity, may be instituted with the
leave of the court, without serving any notice as required by sub-section (1); but the court shall not
grant relief in the suit, whether interim or otherwise, except after giving to the government or
public officer, as the case may be, a reasonable opportunity of showing cause in respect of the
relief prayed for in the suit.

PROVIDED that the court shall, if it is satisfied, after hearing the parties, that no urgent or
immediate relief need be granted in the suit, return the plaint for presentation to it after complying
with the requirements of sub-section (1).

(3) No suit instituted against the government or against a public officer in respect of any act
purporting to be done by such public officer in his official capacity shall be dismissed merely by
reason of any error or defect in the notice referred to in sub-section (1), if in such notice

(a) the name, description and the residence of the plaintiff had been so given as to enable the
appropriate authority or the public officer to identify the person serving the notice and such notice
had been delivered or left at the office of the appropriate authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.]

Sec 81: Exemption from arrest and personal appearance

In a suit instituted against a public officer in respect of any act purporting to be done by him in his
official capacity-

(a) the defendant shall not be liable to arrest nor his property to attachment otherwise than in
execution of a decree, and

(b) where the court is satisfied that the defendant cannot absent himself from his duty without
detriment to the public service, it shall exempt him from appearing in person.

Sec 82: Execution of decree

[(1) Where, in a suit by or against the Government or by or against a public officer in respect of
any act purporting to be done by him in his official capacity, a decree is passed against the Union
of India or a State or, as the case may be, the public officer, such decree shall not be executed
except in accordance with the provisions of sub-section (2)]

(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period
of three months computed from the date of [such decree].
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(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they
apply in relation to a decree, if the order or award-

(a) is passed or made against the Union of India] or a State or a public officer in respect of any
such act as aforesaid, whether by a Court or by any other authority; and

(b) is capable of being executed under the provisions of this Code or of any other law for the time
being in force as if it were a decree

ORDER XXVII: SUITS BY OR AGAINST THE GOVERNMENT Or PUBLIC OFFICERS

IN THEIR OFFICIAL CAPACITY

Rule 1: Suits by or against government

In any suit by or against the government, the plaint or written statement shall be signed by such
person as the government may, by general or special order, appoint in this behalf, and shall be
verified by any person whom the government may so appoint and who is acquainted with the facts
of the case.

Rule 2: Persons authorised to act for government

Persons being ex officio or otherwise authorised to act for the government in respect of any judicial
proceeding shall be deemed to be the recognised agents by whom appearances, acts and
applications under this Code may be made or done on behalf of the government.

Rule 3: Plaints in suits by or against government

In suits by or against the government, instead of inserting in the plaint the name and description
and place of residence of the plaintiff or defendant, it shall be sufficient to insert the appropriate
name as provided in section 79.

Rule 4: Agent for government to receive process

The government pleader in any court shall be the agent of the government for the purpose of
receiving processes against the government issued by such court.

Rule 5: Fixing of day for appearance on behalf of government

The court, in fixing the day for the government to answer to the plaint, shall allow a reasonable
time for the necessary communication with the government through the proper channel, and for
 188

the issue of instructions to the government pleader to appear and answer on behalf of the
government, and may extend the time at its discretion [but the time so extended shall not exceed
two months in the aggregate].

Rule 5A: Government to be joined as a party in a suit against a public officer

Where a suit is instituted against a public officer for damages or other relief in respect of any act
alleged to have been done by him in his official capacity, the government shall be joined as a party
to the suit.

Rule 5B: Duty of court in suits against the government or a public officer to assist in arriving
at a settlement

(1) In every suit or proceeding to which the government, or a public officer acting in his official
capacity, is a party, it shall be the duty of the court to make, in the first instance, every endeavour,
where it is possible to do so consistently with the nature and circumstances of the case, to assist
the parties in arriving at a settlement in respect of the subject matter of the suit.

(2) If, in any such suit or proceeding, at any stage, it appears to the court that there is a reasonable
possibility of a settlement between the parties, the court may adjourn the proceeding for such
period as it thinks fit, to enable attempts to be made to effect such a settlement.

(3) The power conferred under sub-rule (2) is in addition to any other power of the court to adjourn
proceedings.]

Bihari Chowdhary v. State of Bihar

The object of the section is the advancement of justice and the securing of public good by
avoidance of unnecessary litigation

State of Punjab v. Geeta Iron & Brass Works Ltd.,

Krishna lyer, J. also stated,

Governments must be made accountable by parliamentary social audit for wasteful litigative ex-
penditure inflicted on the community by inaction.

State of Madras v. Chitturi Venkata

If the allegations in the plaint relate to an act purporting to be done by a public officer, whatever
the relief prayed for, the section is attracted and a notice is mandatory.
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6 MARKS

1. Arrest before judgment

Introduction

The main objective of justice and judicial procedure is to protect preserve and enforce the rights
of parties. This is done through the judgment and decree. So long as judgment and decree are not
executed, they are meaningless. Many times, the defendant try to defeat the execution of judgment
and decree of the court. Before judgment, they make such a plan such as consumption of property,
transferring it elsewhere or running away. When the defendant becomes successful in doing this,
the decree of court becomes meaningless. Therefore, to defeat such plan of the defendant,
provision has been made under order 38 of Civil Procedure Code 1908 for arrest and attachment
before judgment.

Definition

Sec 2(9): "Judgment" means the statement given by the Judge on the grounds of a decree or
order;

An arrest is when a person is apprehended and taken into custody (for legal protection or control),
usually because they are suspected of or seen committing a crime.

ORDER XXXVIII: ARREST BEFORE JUDGMENT

Rule 1: Where defendant may be called upon to furnish security for appearance

Where at any stage of a suit, other than a suit of the nature referred to in section 16, clauses (a) to
(d), the court is satisfied, by affidavit or otherwise,

(a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the court or to
obstruct or delay the execution of any decree that may be passed against him,-

(i) has absconded or left the local limits of the jurisdiction of the court, or

(ii) is about to abscond or leave the local limits of the jurisdiction of the court, or

(iii) has disposed of or removed from the local limits of the jurisdiction of the court his property
or any part thereof, or
 190

(b) that the defendant is about to leave ¹[India] under circumstances affording reasonable
probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any
decree that may be passed against the defendant in the suit,

the court may issue a warrant to arrest the defendant and bring him before the court to show cause
why he should not furnish security for his appearance:

PROVIDED that the defendant shall not be arrested if he pays to the officer entrusted with the
execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's
claim; and such sum shall be held in deposit by the court until the suit is disposed of or until the
further order of the court.

Rule 2: Security

(1) Where the defendant fails to show such cause the court shall order him either to deposit in court
money or other property sufficient to answer the claim against him, or to furnish security for his
appearance at any time when called upon while the suit is pending and until satisfaction of any
decree that may be passed against him in the suit, or make such order as it thinks fit in regard to
the sum which may have been paid by the defendant under the proviso to the last preceding rule.

(2) Every surety for the appearance of a defendant shall bind himself, in default of such appearance,
to pay any sum of money which the defendant may be ordered to pay in the suit.

Rule 3: Procedure on application by surety to be discharged

(1) A surety for the appearance of a defendant may at any time apply to the court in which he
became such surety to be discharged from his obligation.

(2) On such application being made, the court shall summon the defendant to appear or, if it thinks
fit, may issue a warrant for his arrest in the first instance.

(3 On the appearance of the defendant in pursuance of the summons or warrant, or on his voluntary
surrender, the court shall direct the surety to be discharged from his obligation, and shall call upon
the defendant to find fresh security.

Rule 4: Procedure where defendant fails to furnish security or find fresh security

Where the defendant fails to comply with any order under rule 2 or rule 3, the court may commit
him to the civil prison until the decision of the suit or, where a decree is passed against the
defendant, until the decree has been satisfied:
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PROVIDED that no person shall be detained in prison under this rule in any case for a longer
period than six months, nor for a longer period than six weeks when the amount or value of the
subject-matter of the suit does not exceed fifty rupees:

PROVIDED ALSO that no person shall be detained in prison under this rule after he has complied
with such order.

Chandrika Prashad Singh v. Hira Lal

The object underlying these provisions is to enable the plaintiff to re- alise the amount of decree if
one is eventually passed in his favour and to prevent any attempt on the part of the defendant to
defeat the execution of such decree passed against him.

Vareed Jacob v. Sosamma Geevarghese,

Before a court acts under this rule, it must have reason to believe on adequate material that unless
the power is exercised, there is a real danger that the defendant will remove himself or his property
from the jurisdiction of the court.

Conclusion

The purpose of arrest and detention is to give relief to a decree-holder and commit the judgement
debtor to the civil prison if he does not pay the decretal amount despite having means to pay the
same. However, it also protects honest debtors, where his inability to pay is supported by a
reasonable cause. The court has to afford the right to be heard to the debtors in order to ensure
proper justice.
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2. Caveat. (2)

Introduction

The term caveat Caveat in CPC assumes a pivotal role, providing a shield of protection for
individuals and entities navigating the labyrinthine landscape of the Civil Procedure Code (CPC).
A caveat serves as a pre-emptive legal notice, cautioning that no actions be taken without notifying
the caveator, thereby safeguarding their rights and interests. Sec 148A deals with Caveat.

Meaning

The word (caveat) has been derived from Latin which means "beware". According to the dictionary
meaning, "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".

In other words, a caveat is a caution or warning given by a party to the court not to take any action
or grant any relief to the applicant without notice or intimation being given to the party lodging
the caveat and interested in appearing and objecting to such relief

Sec 148A: Right to lodge a caveat

(1) Where an application is expected to be made, or has been made, in a suit or proceeding
instituted, or about to be instituted, in a court, any person claiming a right to appear before the
court on the hearing of such application may lodge a caveat in respect thereof.

(2) Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been
lodged (hereinafter referred to as the caveator) shall serve a notice of the caveat by registered post,
acknowledgement due, on the person by whom the application has been, or is expected to be, made
under sub-section (1).

(3) Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit
or proceeding, the court shall serve a notice of the application on the caveator.

(4) Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the
caveator, at the caveator's expense, with a copy of the application made by him and also with
copies of any paper or document which has been, or may be, filed by him in support of the
application.
 193

(5) Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force
after the expiry of ninety days from the date on which it was lodged unless the application referred
to in sub-section (1) has been made before the expiry of the said period.]

NATURE AND SCOPE

Section 148-A enacts that a caveat can be lodged in a suit or proceeding. Construing the
connotation in a narrow manner, some High Courts have taken the view that no caveat can be filed
in a first or second appeal or in execution proceedings.

Chandrajit v. Ganeshiya

the provision relating to caveat would be applicable to suits, appeals as well as other proceedings
under the Code or under other enactments.

When to Lodge a Caveat in CPC?

As per Section 148A, individuals have the right to lodge a caveat when they suspect that a case
has been or will be filed against them in any court. A caveat under CPC can be submitted in the
form of a petition under the following circumstances:
• During an ongoing lawsuit or legal proceeding and an application has either already been
submitted or is anticipated.
• When a lawsuit is on the verge of being initiated and it is expected that an application will
be filed in that lawsuit.
In summary, the caveat always pertains to an application within a lawsuit or legal proceeding.
Additionally, the lawsuit or proceeding can either be ongoing (already instituted) or anticipated in
the future, where a lawsuit has not yet been initiated but is expected to be. In all such situations,
the right to lodge a caveat comes into play.

Who May Lodge a Caveat under CPC?

Section 148A also specifies that a caveat can be submitted by any individual, whether or not they
are a party directly involved in the lawsuit. However, the person filing the caveat must have the
legal right to present themselves before the court concerning the specific lawsuit in question. This
means that a third party can file a caveat in CPC if they have some connection or involvement with
the lawsuit.

Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil Kadeesa Umma.

It’s essential to emphasise, though, that a caveat cannot be lodged by a person who has no
meaningful connection to the case.
 194

Where Can a Caveat be Lodged?

A caveat in CPC can be lodged in various types of courts when the caveator expects legal
proceedings to be initiated against them in the near future. This includes Civil Courts with original
jurisdiction, Appellate Courts, High Courts and even the Supreme Court. Civil Courts encompass
a range of judicial bodies such as Courts of Small Causes, Tribunals, Forums and Commissions.

Deepak Khosla v. Union of India & Ors,

the court ruled that Section 148A of the Civil Procedure Code applies exclusively to civil
proceedings. Therefore, caveats cannot be filed against petitions under the Criminal Procedure
Code or petitions made under Article 226 of the Constitution of India.

Where caveat lie: According to S. 148-A, a caveat can be lodged in a suit or proceeding. The
expression 'Civil Proceeding' in S. 141 of the, Code includes all proceedings, which are not original
proceedings.

Where caveat does not lie: The provisions of section 148-A are applicable only in the cases where
the' caveator is entitled to be heard before any order is made on the application already filed or
proposed to be filed, but does not apply in cases where the Code does not contemplate notice.

Who can file caveat: A necessary as well as proper party may lodge a caveat U/s 148-A. Acaveat
may be filed by any person who is going to be affected by an interim order likely to be passed on
an application which is expected to be made in a suit or proceeding instituted or about to be
instituted in a Court.

Who may not file caveat: A stranger to the proceeding or a person supporting the application for
interim relief made by the applicant cannot lodge a caveat.

Time Limit: According to sub-section (5), a caveat filed U/s 148-A (1) shall remain in force for
ninety days from the date of its filing.

Failure to hear Caveator: Once a caveat is filed, it is a condition precedent for passing an interim
order to serve a notice of the application on the caveator who is going to be affected by the interim
order. But an interim order passed without hearing the caveator is not without jurisdiction and
operates unless set-aside.
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3. Temporary injunctions. (3)

Refer 10 marks qstn 1

4. Re-view

Introduction

Order XLVII in the Code of Civil Procedure, 1908 (CPC) together with Section 114 of the Act,
provides the procedure for Review. As per the general rule, once the judgment signed and
pronounced by the court it becomes functus officio, (case to have control over the matter) and it
cannot be altered or changed. The provision of Section 114 and Order 47 are relating to a review
or the exception of the general rule.

Meaning:

Review means re-examination or reconsideration of the case by the same judge. It is a judicial re-
examination of the case by the same Court and by the same Judge. In it, a Judge, who has disposed
of the matter, reviews his earlier order in certain circumstances.

Section 114 and Order XLVII: The provisions relating to review are provided in S. 114
(substantive right) and Order XLVII (procedure). The general rule is that once the
judgment is signed and pronounced or an order is made by the Court, it has no jurisdiction to alter
it. Review is an exception to this general rule.

Sec 114: Review

Subject as aforesaid, any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed by this Code, but from which no appeal
has been preferred,

(b) by a decree or order from which no appeal is allowed by this Code, or

(c) by a decision on a reference from a court of small causes, may apply for a review of judgment
to the court which passed the decree or made the order, and the court may make such order thereon
as it thinks fit.
 196

Who may apply to Review:

A person aggrieved by a decree or order may apply for review of a judgment. A "person aggrieved"
means a person who has suffered a legal grievance or against whom a decision has been
pronounced which has wrongfully deprived him of something or wrongfully re- fused him
something or wrongfully affected his title to something.”

WHEN REVIEW LIES?: CIRCUMSTANCES

A review petition is maintainable in the following cases:

(a) Cases in which no appeal lies

A decree or order from which no appeal lies is open to review. Hence, an application for review
against a decree passed by a Court of Small Causes is competent. On the same principle, where an
appeal is dis- missed on the ground that it was incompetent or was time-barred, the provisions of
review would get attracted.

(b) Cases in which appeal lies but not preferred

A review petition is also maintainable in cases where appeal is provided but no such appeal is
preferred by the aggrieved party. The fact that an order is subject to appeal is no ground to reject
an application for review. An application for review can be presented so long as no appeal is
preferred against the order.

Where, however, an appeal is already instituted before making an application for review, the court
cannot entertain such application. Likewise, where an appeal is preferred and is disposed of, no
review would lie against the decision of the lower court. But if an application for review is
preferred first and then an appeal is filed, the jurisdiction tion of the court to deal with and decide
the review petition is not affected.

(c) Decisions on reference from Court of Small Causes

The Code of Civil Procedure, 1908 allows a review of a judgment on a reference from a Court of
Small Causes.
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GROUNDS

An application for review of a judgment may be made on any of the following grounds:45

(i) Discovery of new and important matter or evidence; or

(ii) Mistake or error apparent on the face of the record; or

(iii) Any other sufficient reason.

(i) Discovery of new evidence

A review is permissible on the ground of discovery by the applicant of some new and important
matter or evidence which, after exercise of due diligence, was not within his knowledge or could
not be produced by him at the time when the decree was passed.

(ii) Error apparent on the face of record

Another ground for review is a mistake or an error apparent on the face of the record. What is an
error apparent on the face of the record cannot be defined precisely or exhaustively, and it should
be determined judicially on the facts of each case. Such error may be one of fact or of law.
However, no error can be said to be an error apparent on the face of the record if it is not self-
evident and requires an examination or argument to establish it." In other words, an error cannot
be said to be apparent on the face of the record where one has to travel beyond the record to see if
the judgment is correct or not.”

(iii) Other sufficient reason

The last ground for review is "any other sufficient reason". The expression "any other sufficient
reason" has not been defined in the Code.

Moran Mar Basselios Catholicos v. Mar Poulose Athanasius,

the Supreme Courts has held that the words "any other sufficient reason" must mean "a reason
sufficient on grounds, at least analogous to those specified in the rule

Thungabhadra Industries Ltd. v. Govt. of A.P.,

the Supreme Court rightly observed: A review is not an appeal in disguise whereby an erroneous
decision is reheard and corrected, but lies only for patent error.
 198

5. Revision. (2)

Introduction:

Civil Procedure Code, 1908 is a procedural law related to the administration of civil proceedings
in India. Section 115 of the Civil Procedure Code, 1908 provides the provisions on the Revision.
It empowers the High Court to look into the cases which have been decided by the subordinate
courts. Hence, the High Court has revisional jurisdiction.

MEANING

According to the dictionary meaning, "to revise" means "to look again or repeatedly at"; "to go
through carefully and correct where necessary", "to look over with a view to improving or
correcting". "Revision" means "the action of revising, especially critical or careful examina- tion
or perusal with a view to correcting or improving"!

Sec 115: Revision

[(1)] The High Court may call for the record of any case which has been decided by any court
subordinate to such High Court and in which no appeal lies thereto, and if such subordinate court
appears-

(a) to have exercised a jurisdiction not vested in it by law, or

(b) to have failed to exercise a jurisdiction so vested, or

(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity, the High
Court may make such order in the case as it thinks fit:

[PROVIDED that the High Court shall not, under this section, vary or reverse any order made, or
any order deciding an issue, in the course of a suit or other proceeding, except where the order, if
it had been made in favour of the party applying for revision, would have finally disposed of the
suit or other proceedings.]

(2) The High Court shall not, under this section, vary or reverse any decree or order against which
an appeal lies either to the High Court or to any court subordinate thereto.

[(3) A revision shall not operate as a stay of suit or other proceeding before the court except where
such suit or other proceeding is stayed by the High Court.]
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[Explanation: In this section, the expression "any case which has been decided" includes any order
made, or any order deciding an issue, in the course of a suit or other proceeding.]

CONDITIONS

The following conditions must be satisfied before revisional jurisdic- tion can be exercised by the
High Court:

(i) a case must have been decided;

(ii) the court which has decided the case must be a court subordi- nate to the High Court;

(iii) the order should not be an appealable one; and

(iv) the subordinate court must have

(a) exercised jurisdiction not vested in it by law; or

(b) failed to exercise jurisdiction vestedin it; or

(c) acted in the exercise of its jurisdiction illegally or with material irregularity.

Vidyavati Vs Shri Devidas

revision against order on review application by sub-judge to High Court directly without going
into appeal to District Court, is maintainable.
Baldevdas v. Filmistan Distributors

SC, held that a case may be said to have been decided if the Court adjudicates for the purpose of
the suit some right or obligation of the parties in controversy. Every order in the suit cannot be
regarded as a case decided within the meaning of S. 115.

Conclusion

It can be concluded that the cases which are decided by subordinate courts and there is no appeal
lies the aggrieved party Revision is competent. The High Court has the power of Revisional
jurisdiction if the subordinate court has acted arbitrarily or illegally. The Court can also exercise
suo moto action to correct the decision given by the subordinate court. Revisional powers can also
be exercised when there is a jurisdictional error by the subordinate courts. Hence, it can be said
that Section 115 acts as a remedy and gives justice.
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6. Inherent powers of the court

Introduction

The law concerning the inherent powers of Court can be found in Section 148 to Section 153A of
the Civil Procedure Code. The inherent power of the court is that which is inherent in a court by
the very fact of its being empowered to exercise any jurisdiction at all so that it comes within the
express sense of the law of within the consequences that may be gathered from it. The purpose of
the law is to secure the ends of justice.

MEANING

According to dictionary meaning, "inherent" means "natural", "existing and inseparable from
something", "a permanent attribute or quality", "an essential element, something intrinsic, or
essential, vested in or attached to a person or office as a right of privilege." Inherent powers are
thus powers which may be exercised by a court to do full and complete justice between the parties
before it.

The inherent power of a court refers to the abilities that a court have to deliver justice when there
are no specific provisions in the CPC.

Sec 148 to 153B of CPC deals with the inherent power of courts.

Sec 148: Enlargement of time

If court has given a fixed period for doing an act, the court has the power to extend this period not
exceeding 30 days in total, even after the expiry of the period, originally fixed.

Sec 149: Power to make up deficiency of court fees:

If the court fee for any documents is not paid by a party, the court have the power to give a chance
to pay it even after the time limit.

Sec 150: Transfer of Business

Where the business of any court is transferred to another court, the receiving court will have the
same power and duties as the 1st court.
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Sec 151: Saving of inherent powers of court

Nothing in the CPC shall limit or affect the inherent power of the court to make orders necessary
for justice or to prevent abuse of the process of the court.

Sec 152: Amendment of Judgment, decree or orders

The clerical or arithmetical mistake in judgments, decrees or orders or errors may be corrected by
the court either of its own motion or on the application of any parties.

Sec 153: General power to amend

The court may amend any defect or error in any proceeding in a suit and for the purpose of
determining the real question or issue raised by such proceed with costs.

Sec 153A: Power to Amend decree or order

Where appeal is summarily dismissed

Where an appellate court dismisses an appeal. The court which passed the decree or order at the
1st instance has the power to amend this decree or order. Not with standing that the dismissal of
appeal has the effect of confirming the decree or order.

Sec 153B: Place of Trial to be deemed to be open court

The place in which the civil court having trial shall be deemed to be an open court which the public
may have access provided that the presiding judge may order that the public or a particular person
shall not have access to be in the room or building used by the court.

Mahanth Ram Das v. Ganga Das

Section 148 provides that where any period is fixed or granted by the court for the doing of any
act, the court has power to enlarge the said period even if the original period fixed has expired

Johri Singh v. Sukh Pal Singh

The use of the word "may" indicates that the power is discretionary, and the court is therefore,
entitled to take into account the conduct of the party praying for such extension.
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Manohar Lal v. Seth Hiralal

The inherent powers saved by Section 151 can be used to secure the ends of justice.

Master Construction Co. (P) Ltd. v. State of Orissa,

Section 152 enacts that clerical or arithmetical mistakes in judgments, decrees or orders arising
from any accidental slip or omission may at any time be corrected by the court either of its own
motion (suo motu) or on the application of any of any of the parties.

Conclusion

The Inherent Powers of the Court under the Civil Procedure Code serve as a vital tool to ensure
justice prevails in situations not explicitly covered by the CPC’s provisions. These inherent powers
of court are subject to well-established limitations. They cannot supersede specific provisions of
the CPC, nullify its provisions, or be invoked when alternative remedies exist. Courts must
exercise these powers judiciously, adhering to the overriding objective of upholding justice.

7. Appeals.

Introduction

An appeal is a remedial concept determined as an individual’s right to seek justice against an unjust
decree/order via referring it to a Superior Court. Sections 96 to 99A; 107 to 108 & Order 41 of the
Code of Civil Procedure, 1908 deal with appeals from original decrees known as First appeals.

Meaning of Appeal in CPC

The concept of ‘appeal’ is not explicitly defined in the CPC (Code of Civil Procedure). According
to the Black’s Law Dictionary, ‘appeal’ is the formal complaint made to a higher court to rectify
an injustice or error committed by a lower court.

Essentials of Appeals

An appeal under CPC is a legal process in which a higher forum reviews the decision of a lower
forum on both legal and factual grounds. The higher forum has the jurisdiction to either uphold,
reverse, modify the decision, or send the case back to the lower forum for a fresh decision,
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following the directions given by the higher forum. The three essential elements of appealing cases
can be summarised as follows:
• A decree issued by a judicial or administrative authority.
• An aggrieved individual who may not have been a party to the original proceeding.
• A reviewing body was established specifically to handle such appeals in CPC.

Right to Appeal

The right to appeal is both statutory and substantive. It is a statutory right because it must be
specifically granted by a statute and establish the appellate machinery. Unlike the inherent right to
institute a lawsuit, the right to appeal is provided by law. Additionally, the right to appeal is
substantive, meaning that it must be exercised prospectively unless the statute states otherwise.
However, parties may waive this right through an agreement, and accepting benefits under
a decree may stop a party from challenging its validity. It’s important to note that the right to
appeal is determined based on the law as it exists at the time of the original suit.

One Right to Appeal in CPC

There is usually one right to appeal, as stated in Section 96 of the CPC. This allows an aggrieved
party to appeal a decree passed by a court exercising its original jurisdiction to a higher authority
designated for this purpose. Exceptions to this single right of appeal are outlined in Sections 97,
98, and 102 of the CPC, which specify certain conditions under which no further appeal is
permitted.

No Right to Appeal under CPC

In general, a person who is not a party to the suit does not have the right to appeal unless they
obtain special leave from the Court. The crucial factor to consider when determining one’s right
to appeal is whether the person is adversely affected by the decision or the suit, and this is a matter
of fact that must be evaluated on a case-by-case basis.

Who Can File an Appeal?

The right to appeal in CPC is available to specific categories of individuals:

• Any party to the original proceeding or their legal representatives.

• Any person claiming under such a party or a transferee of interests from such a party.
• Any person appointed by the Court as the legal guardian of a minor.
• Any other aggrieved person, with the Court’s permission.
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The general rule is that only a party to a suit who has been adversely affected by the decree or their
representatives can file an appeal in CPC. However, with the Court’s leave, a person not originally
involved in the case may also appeal if they are bound by the decree, aggrieved by it, or maliciously
influenced by it. To determine if a party is aggrieved, it must be shown that the judgment has
unjustly affected their rights, whether financially or otherwise. A judgment cannot be said to
adversely impact a party unless it acts as res judicata against them in future litigation. The content
of the judgment and decree, rather than the form, should be evaluated to determine if it will have
this effect.

Section 96(2) outlines remedies available to a defendant against whom an ex parte order is passed.
They can either file an appeal under CPC against the decree or file a motion to set aside the ex
parte decree. These remedies can be pursued concurrently and do not hinder each other.
However, Section 96(3) specifies that a consent decree cannot be appealed against. This provision
is based on the principle of estoppel, assuming that parties to a suit may, through a lawful
agreement, settlement, or behaviour, relinquish their right to appeal. In a consent decree, both
parties have willingly given up their right to appeal in CPC as part of the agreement.

Who Cannot File an Appeal in CPC?

To summarise the situations in which parties may not have the right to appeal:

• A party that has explicitly and unambiguously given up its right to appeal as per an
arrangement or agreement.
• A party that has received benefits from a decree and has implicitly accepted its terms.
• A consent decree binds parties, as they have willingly agreed to its terms.
• Parties whose evidence or compromises were not presented or expressed during the
dispute.
• Parties involved in trivial instances where the matter is not significant enough to warrant
an appeal in CPC.

Furthermore, legal representatives are not allowed to file an appeal under CPC on behalf of a
deceased individual. Once a party passes away, their right to appeal also ceases to exist.

Characteristics of An Appeal

The right to appeal is not automatically assumed and must be explicitly provided for in the statute.
It differs from the rights associated with filing cases, as it is a substantive right rather than a
procedural one. These rights arise from the moment the suit is instituted. Once granted, these
privileges cannot be invalidated unless a statute expressly or implicitly allows for such
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invalidation. The appellate authority has the final and conclusive discretion in matters related to
appeals.

Form of Appeal: Rules

For an appeal to be considered valid, it must adhere to all the provisions specified in the
Memorandum of Appeal. Rule 2 prohibits the appellant from raising objections that are not
outlined in the memorandum of appeal, except with the Court’s permission. This rule is intended
to inform the respondent of the specific case they are expected to address during the appeal hearing.
If the memorandum of appeal in CPC is not in the appropriate form, the Court has the discretion
to reject it or send it back to the appellant for necessary amendments.

Rule 4 explains that if a decree is based on a common ground that applies to all the plaintiffs or
defendants, each of them has the right to appeal under CPC against the entire decree. The Court
may then either reverse or modify the decree collectively favouring all the plaintiffs or defendants.
This rule allows multiple parties who share a common interest in the case to collectively challenge
the decree on the shared ground.

Condonation of Delay

The Amendment Act of 1976 introduced Rule 3A, which states that if an appeal is filed after the
prescribed limitation period expires, the appellant must submit a statement explaining the
reasonable grounds for the delay in filing the appeal. The purpose of this rule is twofold: firstly, to
inform the appellant that the delayed appeal in CPC may not be accepted until the Court considers
the application justifying the delay, and secondly, to alert the respondent that the appellant may
not be immediately prepared to argue on the merits of the case, as the Court needs to address the
application for condonation of the delay as a preliminary matter. However, it is essential to note
that this clause is considered a directory and not mandatory.

Stay of Proceedings

Rules 5 to 8 deal with the provision for a stay of execution of a decree or order during the appeal
process. Rule 5 allows the appellate Court to order a stay of proceedings under the decree or the
enforcement of the decree once an appeal under CPC has been filed. However, it’s important to
note that the mere filing of an appeal does not automatically suspend the implementation of the
decree.
The purpose of Rule 5 is to protect the interests of both the party who obtained the decree and the
party against whom the decree was passed. For the Court to grant a stay, the following conditions
must be met:
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• The application for a stay must be filed without any undue delay.
• The party seeking the stay must demonstrate that they would suffer significant harm if the
order is not granted.
• The applicant must provide adequate security to ensure the due performance of the decree
or order in case the appeal is unsuccessful.

If these conditions are satisfied, the Court may also issue an ex parte order for a stay of execution
pending the hearing of the appeal without requiring the other party’s presence. This allows for
immediate protection of the appellant’s interests while the Court considers the matter further.

Summary Dismissal

Rule 11 pertains to the trial court’s authority to summarily dismiss an appeal in CPC. This process
occurs after the appellant has submitted the memorandum of appeal and the appeal has been filed
in accordance with Rule 9. Rule 11 enforces the fundamental principle that the appeal court has
the right to dismiss an appeal without a full hearing if it finds that it lacks merit after hearing the
appellant or their counsel.

However, this discretionary power should be exercised judiciously and not in an arbitrary manner.
The Court should use this control only in exceptional circumstances and with restraint. In other
words, the summary dismissal of an appeal should be rare and sparingly applied.

The purpose of Rule 11 is to allow the appeal court to swiftly dispose of frivolous or meritless
appeals, thus preventing unnecessary delays and ensuring that the Court’s resources are used
efficiently. However, this authority should not be misused, and the Court must be cautious not to
deny legitimate appeals that may require a full hearing for proper adjudication.

Doctrine of Merger

The concept of the merger theory is rooted in the principle that there should not be multiple
operative decrees governing the same subject matter simultaneously. As a result, when an appeal
is adjudicated by an appellate court, the decree of the trial court no longer remains effective under
the provisions of the statute.
Instead, it is replaced by the decree passed by the appellate Court, and the decree of the trial court
effectively combines or “merges” with the decree of the appellate Court.

Cross Objections

Order 41 Rule 22 is a special provision that permits the respondent, who has not filed an appeal
against the decree, to raise objections to the decree by filing cross-objections in response to the
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appeal filed by the other party. However, filing cross-objections is purely discretionary and
voluntary for the respondent. This provision is permissive and encouraging rather than being
mandatory or obligatory.

Cross-objections should not be confused with cross-appeals under CPC. A cross-appeal is when
the respondent, who is typically the plaintiff in the original case, brings an appeal against the
appellant (typically the defendant) if they are dissatisfied with a particular aspect of the judgment,
even if the overall decree is in their favour due to other findings.

The terms of Order 41 Rule 22 only permit the right to file cross-objections when an appeal is filed
and the appellate Court accepts the appeal, issuing a notice to the respondent. Only after the appeal
is accepted and the Court notifies the respondent the process of filing cross-objections may begin.
It is important to note that cross-objections cannot be filed if the appellant has filed no appeal or
if an appeal has been filed but has not been accepted by the Court. In such cases, the respondent
cannot raise objections through cross-objections.

Powers of Appellate Court under CPC

The appellate Court is granted several powers under Section 107 and the corresponding rules of
Order 41 of the Code of Civil Procedure:

Power to decide a case finally (Section 107(l)(a) and Rule 24)

When the evidence on record is sufficient, the appellate Court can make a final decision on the
case, even if the judgment of the lower Court was based on different grounds.

Power of remand (Section 107(1)(b) and Rule 23)

If the trial court decides the case on a preliminary point without considering other issues, and the
appellate Court reverses that decree, it can remand the case back to the trial court to decide the
remaining issues and reach a decision.

Power to frame issues and refer them for trial (Section 107(1)(c), Rules 25 and 26)

If the trial court fails to frame an issue or overlooks a crucial factual question, the appellate Court
can frame those issues and refer them for trial to the lower Court. The lower Court is directed to
take the additional evidence required to properly determine the case.
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Power to take additional evidence (Section 107(1)(d), Rules 27-29)

Generally, the appellate Court decides the appeal in CPC based on the evidence presented during
the original trial. However, the Court may admit additional evidence if the party requesting it
demonstrates that this evidence was not available during the initial trial despite their best efforts.
The other party must have an opportunity to challenge the additional evidence, which should be
relevant to the issues under consideration.

Power to modify the decree (Rule 33)

The appellate Court is empowered to grant or refuse relief to the appellant and provide suitable
relief to the respondents as necessary. The Court can make any decision it deems appropriate, not
just between the appellant and the respondent but also between two respondents.
These powers enable the appellate Court to ensure fair and just adjudication of the case based on
the evidence and merits presented before it.

First Appeal in CPC

According to Section 96 of the CPC, a regular first appeal can be filed against a decree passed by
any Court exercising original jurisdiction, except when expressly prohibited. Analysing Sections
2(2), 2(9), and 96 of the CPC together, it becomes evident that a first appeal may or may not be
maintainable in certain adjudications.

Second Appeal in Civil Procedure Code

Section 100 of the CPC provides for a second appeal under this code. It stipulates that an appeal
may be filed to the High Court from a decree passed in the first appeal by a subordinate Court,
except where contrary provisions exist. However, the jurisdiction exercised under this section is
limited to substantial questions of law framed either at the time of admission of the appeal or
subsequently.

Conversion of an Appeal into Revision

In the case of Bahori v. Vidya Ram, it was established that since there is no specific provision
under the CPC for the conversion of an appeal into a revision or vice versa, the Court can only
exercise its power under Section 151. Though discretionary, the Court’s inherent powers allow it
to issue orders necessary to meet the ends of justice. The only prerequisite for such conversion is
that proper procedures are followed during the filing of the original appeal or revision under the
Civil Procedure Code.
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Appeals from Orders of the Tribunal

When parties involved in proceedings are dissatisfied with the orders or conclusions of the tribunal,
they have the option to submit an appeal to the National Company Law Appellate Tribunal
(NCLAT). The Company Act, 2013, in Section 421, elaborates on the process as follows:

• Either one or both parties aggrieved by an order of the tribunal may file an appeal under
CPC with the appellate tribunal.
• An appeal cannot be filed with the tribunal without the consent of both parties.
• The appeal must be filed with the NCLAT within forty-five days of the tribunal’s order, in
the prescribed form, and accompanied by the required fees.
• In exceptional circumstances, if the tribunal is convinced that there is sufficient cause for
not filing the appeal within the forty-five-day period, it may allow the appeal to be filed
beyond this period, but it cannot extend beyond the forty-five days limit.
• After giving both parties a reasonable opportunity to be heard, the tribunal may pass
appropriate orders.
• The tribunal has the authority to either confirm, modify, or set aside the order being
appealed against.
• The appellate authority is responsible for sending a copy of the order to the tribunal and
the parties involved in the appeal in CPC.

Appeals By Indigent Persons

If a person is unable to pay the required fee for filing a memorandum of appeal Civil Procedure
Code, they have the option to file an appeal as an indigent person. However, the Court has the
discretion to reject such an application and may direct the applicant to pay the necessary court fee
within a specified time.

Appeals To The Supreme Court

Appeals to India’s highest jurisdictional body, the Supreme Court, can be made under two
circumstances. Firstly, when the lower Court considers the case appropriate for an appeal to the
Supreme Court, and secondly, when the Supreme Court grants special leave for the appeal Civil
Procedure Code. A petition must be submitted to the Court that issued the decree to file an appeal
under CPC. The petition will be heard and disposed of within sixty days. It should state the grounds
of appeal and include a request for a certificate declaring that the case involves a substantial
question of law that requires the Supreme Court’s decision.

The opposite party will have an opportunity to raise objections to the issuance of such a certificate.
The petition will be disposed of if the certificate is denied. If the certificate is granted, the appellant
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must deposit the required security and costs within a specified period. After fulfilling these
obligations, the Court from whose decision the appeal in CPC is made will declare the appeal as
admitted and notify the respondent accordingly. The jurisdictional body will then provide a sealed
copy of the record and furnish copies of the relevant papers in the suit.

Garikapati Veeraya v. Subbiah Chaudhary

In the instant case, it was held that the pre-existing right to appeal to the Federal Court continued
to exist and the old law which created such a right also continued to exist. It construed to the
preservation of this right while recognizing the change in its judicial machinery from the Federal
Court to the Supreme Court. However, the continuance of the old law is subject to the provisions
of the Constitution.

Conclusion

An appeal in CPC is a legal process through which a party dissatisfied with a court’s decision
seeks a review and reconsideration of the judgment by a higher court. It allows parties to challenge
the lower court’s ruling on specific legal or factual grounds and present arguments for a different
outcome.
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UNIT 5

10 MARKS

1. Explain the provisions in respect of condonation of delay. (2)

Or
Explain the circumstances in which delay will be condoned under the Limitation Act.
2. "Once the time has begun to run, no subsequent disability or inability can stop it." Discuss.
(3)
3. Distinguish between limitation and estoppal.
4. "State the general rules as to calculation or period of limitation.
5. Explain the salient features of Limitation Act.
6. Discuss the effects of fraud or mistake on the period of limitation.
7. State the essentials of valid acknowledgement.
8. “Limitation bars the remedy, but does not extinguish the right". Explain.

6 MARKS

1. "Limitation extinguishes remedy but not right." Explain.

2. Objects of law of limitations.
3. Prescription.
4. Acknowledgement. (2)
5. The General rules for Calculation of period of limitation for filing suit
6. 'X' takes the debt from 'Y' under oral terms. X gives a written acknowledgement, after the
expiry of two years. Then he pleads sorry for not paying the debt yet. Determine the validity
of acknowledgement.
7. Kiran seeks condonation of delay for not preferring an appeal within the period of
limitation because of engaging in his marriage. Is it condonable?
8. Rakesh taken debt from Santhosh under oral terms. Rakesh gives a written
acknowledgement, after the expiry of two years. Then he pleads sorry for not paying the
debt yet. Determine the validity of acknowledgement.
9. The court is closed on the last date of limitation period. 'A' seeks extension of limitation
period on that ground. Will he succeed?
10. Right to sue arises to 'X' during his minority. 'X' dies one day after attaining majority. He
is succeeded by his son 'Y' who is a minor. Determine the effect on the period of limitation.
11. A's wife refused to return to her husband and allow him the exercise of conjugal rights.
What is the period of limitation for 'A' ? Decide
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10 MARKS

1. Explain the provisions in respect of condonation of delay. (2)

Or
Explain the circumstances in which delay will be condoned under the
Limitation Act.

Introduction

Condonation of delay is a doctrine mentioned in the Limitation Act, 1963. The Act postulates time-
limits for different suits and mentions the time period within which a suit, appeal or application
can be instituted. The expiry of such time period leads to extinguishing the remedy of the aggrieved
party.

This doctrine is an exception to the limitation period. According to this, if the aggrieved party can
furnish “sufficient cause” for causing a delay in institution of suit leading to the expiry of the
limitation period, the Court can, with discretionary jurisdiction disregard the delay or “condone
the delay” and proceed with the case.

Meaning

The condonation of delay means the extension of prescribed time in certain cases subject to
sufficient cause. The concept of condoning a delay is primarily preferred to the applications and
appeal and does not cover the suits.

Condonation of delay under the Limitation Act, 1963

The Limitation Act of 1963 is legislation which specifies the time period within which a suit is
instituted, and enumerates provisions in case the suit is not filed within the period prescribed by
Act. The Act extinguishes the remedy to the party and not the right to file delayed documents in
Court.

Section 2(j): defines “period of limitation” as the time prescribed by the Schedule to institute any
suit, appeal or application, and “prescribed period” as the period of limitation determined as per
the provisions of the Act.

Period as prescribed in Schedule 1 to the Act

The period has been prescribed in Schedule 1 to the Act. Generally, it is as follows:
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• 3 years’ time-period for a suit relating to accounts, contracts, suits relating to movable
property, recovery of a lawsuit under a contract, etc.
• 12 years’ time-period for suits relating to possession of the immovable property, and 30
years’ time-period for suits relating to the mortgaged property.
• One year for suit relating to torts (3 years for compensation in certain cases). 30 to 90 days
in case of appeals under the Civil Procedure Code and Criminal Procedure Code.

Sec 5: Extension of prescribed period in certain cases

Any appeal or any application, other than an application under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908, may be admitted after the prescribed period if the appellant
or the applicant satisfies the Court that he had sufficient cause for not preferring the appeal or
making the application within such period.

The general rule is that every suit instituted, appeal preferred or application made after the period
prescribed therefor by the first Schedule shall be dismissed Section 3 is an exception of this general
rule and provides for the extension of time in the case of appeals and applications other than
execution applications under any of the provisions of Order XXI, C.P.C. when the appellant or
applicant, as the case may be, satisfies the Court that he had "sufficient cause" for not filing the
proceeding within the period prescribed.

Brij Inder Singh v. Lala Khushi Ram,

The existence of sufficient cause for not filing the proceeding in time is thus merely a condition
that must be satisfied before the Court can exercise its power of granting or refusing to grant the
extension of time. If the conditions are not satisfied, there is no room for the applicability of the
discretion.

Jokkim Fernandez v. Amuna Kunhi Umma

Section 5 applies only to courts and prescribed period of limitation in respect of suits, appeals and
applications filed only in the courts. The applicability of Section 5 in relation to Tribunals is ruled
out and the section has limited its application only to courts.

Principles for extension of time under Section 5.

The principles for extension of time under Section 5 may be summed up as follows-
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(a) the party seeking relief has to satisfy the Court that he had sufficient cause for not preferring
the appeals, etc. within the prescribed time;

(b) the explanation has to cover the entire period delay of delay;

(c) a litigant should not be easily permitted to take away a right which has accrued to his adversary
by lapse of time;

(d) the proof of sufficient cause is a condition precedent for the exercise of the discretionary
jurisdiction vested in the Court by Section 5. After sufficient cause is shown then the Court has to
enquire, whether in its discretion it should condone the delay,

(e) the discretion conferred in the Court is a Judicial discretion and must be exercised to advance
substantial justice;

(f) no liberal view should be taken merely because the defaulting party is Government;

(g) even sheer indifference of the Advocate cannot stand in the way of condoning the delay when
there is no laches on the part of the litigant;

(h) when there is remiss on the part of the Advocate, the question comes up for consideration
whether the mistake was bona fide or was merely a device to cover ulterior purpose such as laches
on the part of the litigant or an attempt to save limitation in an underhand way. (State of Assam
and Others v. Naresh Chandra Das and Another

Collector, Land Acquisition v. Mat Katiji

The Supreme Court laid down the following six principles for dealing with the application under
Section 5-

1. Ordinarily, a litigant does not stand to benefit by lodging an appeal late.

2. Refusing to condone delay can result in a meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As against this when delay is condoned, the highest
that can happen is that a cause would be decided on merits after hearing the parties.

3. Everyday's delay must be explained does not mean that a pedantic approach should be made.
Why not every hour's delay, every second's delay. This doctrine must be applied in rational
common sense in a pragmatic manner.
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4. When substantial justice and technical consideration are pitted against each other, course of
substantial justice deserves to be preferred for the other side cannot claim to have vested right in
injustice being done because of a non-deliberate delay.

5. There is no presumption that delay is occasioned deliberately or the account of culpable

negligence or on account of mala fides. A litigant does not stand to benefit by resorting to delay.
In fact, he runs a serious risk.

6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on
technical grounds but because it is capable of removing injustice and is expected to do so."

“Sufficient Cause”?

The term “sufficient cause” isn’t defined explicitly and varies on a case-to-case basis. The Court
has a wide discretion in determining what constitutes as sufficient cause, depending upon the facts
and circumstances of each case.

In cases regarding non-appearance, adjournment or stay of execution of a decree, the cause must
be just and adequate i.e. “sufficient” otherwise these provisions will just be a way of incessantly
prolonging litigation. This principle has been advocated in furtherance of pursuance of justice but
it shouldn’t deny someone of justice either.

G. Ramagowda v. Special Land Acquisition Officer,

it was held that “sufficient cause” is to be interpreted liberally so as to pursue substantial justice.

Exceptions to Condonation of Delay – Section 5

There are certain exceptions relating to the ambit of the doctrine of condonation of delay (Section
5):

1. The doctrine is applicable to Criminal Proceedings only.

2. The doctrine does not include “suit” and only covers appeals and applications.
3. Other than an application under any of the provisions of Order XXI of the Code of Civil
Procedure, 1908. The doctrine covers all appeals and applications.

Rule 3A
Rule 3A has been inserted by the Amendment Act of 1976. According to it, an application must
be filed in case an appeal is presented after the expiry of the prescribed period. The application has
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to state sufficient cause for causing a delay in filing an appeal. This rule was recommended by the
Privy Council.

The practice of admitting such appeal subject to an opinion regarding limitation was disapproved
by privy – council, and it stressed the need of adopting a procedure for settling the final
determination of the question as to limitation before admission of appeal.

State of M.P v. Pradeep Kumar,

The Supreme Court observed two objects of this rule:

• To inform the appellant filing a time-barred appeal that his action won’t be entertained
unless it is accompanied by an application substantiating sufficient cause.
• To communicate to the appellant that he may not have to be ready as the condonation of
delay is a condition precedent to hearing their appeal.

General Principles under The Limitation Act

The two fundamental principles on which the Limitation Act primarily rests are as follows:

1. Interest republicae ut sit finis lithium: It is for the public good that litigation comes to an
end after a long hierarchy of appeals. Continuing to file further appeals may be equivalent
to opening a floodgate which causes more wrongs than rights.
2. Vigilantibus non dormentibus jura subvenitent: Law aids the vigilant and not asleep. Law
will not assist those who are careless of their right. You should file the suit at the right time,
during the limitation period. Law will not respond to carelessness on your part.

Instances where condonation can be granted

The following are the instances where condonation can be granted:

• Subsequent changes in the law.

• Illness of the party: It includes the nature and severity of disease and facts encompassing
the failure to act.
• Imprisonment of the party: However, mere detainment is not sufficient to cause. Varies on
a case-to-case basis.
• Party is a pardanashin woman.
• Party belongs to a minority group with insufficient funds.
• Poverty or paupers.
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• Party is a government servant: A government servant may not have an incentive in fulfilling
the task. Therefore, a certain latitude is permissible in such a case.
• Delay due to the pendency of the writ petition.
• Party is illiterate.
• Other adequate grounds: Mistake of Court, Mistake of Counsel, Delay in getting copies,
mislead by rulings, etc.

Leading Judgments

Balakrishnan v. M.A. Krishnamurty

By the means of this judgment, the need for a “rule of limitation” was justified. Rule of limitation
hasn’t been incorporated to destroy the right of parties, but to ensure that the parties don’t resort
to dilatory tactics and seek their remedy promptly. The Law of limitation fixes a life span for such
legal remedy. Unending lifespan would’ve led to unending uncertainty. The Court held that the
law of limitation is thus founded on public policy.

Ramlal, Motilal & Chotelal v. Rewa Coalfields Ltd.

In this case, the Court held that while interpreting Section 5 of the Limitation Act, two important
considerations need to be made:

• In case of expiry of prescribed period of prescription, a right in favour of the decree-holder

arises, according to which the decree can be treated as binding between the parties.
• If sufficient cause of delay in filing appeal has been given, it is the Court’s discretion to
condone the delay and admit the appeal.
The fact that the appellant was misled by tools of the High Court in computing the limitation period
is sufficient cause under Section 5 to condone the delay.

Appeal was granted.

Shakuntala Devi Jain v. Kuntal Kumari

In this case, the question before the Court was whether the delay in filing appeal should be
condoned under Section 5 of the Limitation Act. As laid down in this case, Section 5 of the
Limitation Act gives Court discretion, which has to be exercised in a way in which judicial power
and discretion ought to be exercised upon well-understood principles. The words “sufficient cause”
need to receive a liberal construction. The Bench of three Judges held that unless want of bona
fides of such inaction or negligence as would deprive a party of the protection of Section 5 is
proved, the application must not be thrown out or any delay cannot be refused to be condoned.
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The appeal was allowed and the delay was condoned.

New India Insurance Co. Ltd. V. Shanti Misra

What constitutes sufficient cause can’t be laid down by hard and fast rules. In this case, it was held
that discretion given by Section 5 shouldn’t be defined or made concrete in such a manner that it
converts a discretionary matter into a rigid rule of law.

Lala Mata Din v. A. Narayan

The question before the court is whether a mistake was bona fide or was it merely a way to cover
an ulterior purpose. In this case. It was held that the accused was not to be blamed for a delay in
filing appeal and it was to be attributed to advice of his counsel. The accused had no underhand to
do so. Other than that, the rule had been misread by the counsel, meaning that the mistake
committed by the counsel was bona fide and not influenced by any mala fide intent.

The delay was condoned and the appeal dismissed.

State (NCT of Delhi) v. Ahmed Jaan

The petitioner had filed an appeal for condonation of delay, however the file got mixed up in the
Registry of High Court. The question before the court was whether to allow delay in filing and re-
filing of appeals. In this case, it was held that what counts is not the length of the day but the
sufficiency of a cause i.e. the Court should follow a pragmatic and rational approach in explaining
every single day’s delay.

The delay was condoned and appeal thereby dismissed.

Kunwar Rajendra Singh v. Rai Rajeshwar Bali and others

The judicial committee, in this case, pointed out that if a party in a particular manner due to wrong
advice given by their legal advisor, they cannot be held liable for negligence and can still be
permitted to plead under Section 5 of the Limitation Act. The Committee also observed that
mistaken advice given by a legal advisor in a particular case can be held to be sufficient cause.

The appeal was allowed.

IOCL v. Subrata Borah Chowlek

It was held that though a certain amount of latitude is admissible in cases involving government
since the government official carrying out does not have an incentive to do so.
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2. "Once the time has begun to run, no subsequent disability or inability

can stop it." Discuss. (3)

Introduction

The Limitation Act, 1963 came into force with effect from 1st January 1964. It was enacted to
consolidate and amend the law for the limitation of suits and other proceedings and prescribes
different periods of limitation for suits, appeals, and applications.

Meaning

"Disability"-Meaning of "Disability" means want of capacity of the legal qualification to act as

such as have been mentioned in Section 6, viz., minority, insanity or idiocy.

"Inability"-Meaning of. "Inability" means want of physical power or facility to Act. Inability
assumes that the plaintiff is fully capable to sue; there is no personal inability to sue but some
extraneous circumstances render him unable to file the suit, e.g., illness, poverty, etc. There is no
provision in law to extend the time for a person who is unable to file a suit apart from his disability
arising from his being a minor, or an idiot or insane.

Sec 9: Continuous running of time.

Where once time has begun to run, no subsequent disability or inability to institute a suit or to
make an application stops it:

Provided that, where letters of administration to the estate of a creditor have been granted to his
debtor, the running of the period of limitation for a suit to recover the debt shall be suspended
while the administration continues.

Notes

This section applies not only to suits but to application as well. This has not been expressly
provided in the section.

If at the date on which the cause of action arose the plaintiff was under no disability or inability,
then time will naturally begin to run against him because there is no reason why the ordinary law
should not have full operation. Section 9 says that once time has begun to run, no subsequent
disability or inability to sue can stop its running. This applies to a person himself as well as to his
representatives-in- interest after his death.
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Jivraj v. Babaji and Kalka Baksh v. Ram Charan,

The section contemplates a case of subsequent and not of initial disability, that is, it contemplates
those cases where the disability occurred after the accrual of the cause of action; whereas cases of
initial disability have been provided for by Section 6. A decree-holder made various applications
for execution of a decree. Each application was within time. Then the decree-holder died. His son,
who was a minor, made an application for execution of the decree within three years after the death
of his father but more than three years after the date of the last application of the deceased father.
Held, that Section 9 applies and not Section 6 and minor son's application for execution was time
barred, it being a case not of initial but of subsequent disability.

Examples

1. A right to sue accrues to P, when he is under no disability; but subsequently he becomes insane.
Time runs against P as usual, from the date of accrual of the right and his subsequent disability
(viz., insanity) is no bar to the running of time.

2. A right to sue accrues to P during his minority. After 4 years he becomes major, but subsequently
(i.e., something after attaining majority) he becomes insane. Time runs against P from the date of
his attaining majority and subsequent insanity does not stop the running of limitation.

3(a) A right to sue accrues to P during his minority. P dies only one day after attaining
majority and is succeeded by his son K who is a minor. Time begins to run against K from the
death of P and K's minority is of no avail to him because when limitation has once began to run, it
cannot be suspended by any disability subsequently arising.

(b) A right to sue accrues to A in 1910 and limitation for the suit commences to run against A from
then. At that time A has a minor son. A dies without suing and the right to sue survives to B. B
cannot claim extension of the time on the ground that he was a minor when the right to sue accrued,
because, when once time has begun to run, subsequent disability or inability to sue does not stop
its running.

(c) Two brothers, A, major, and B, minor, were members of a Joint Hindu Family of which A was
the Karta and manager. After A's death and on attaining majority, B sues to recover a debt
advanced due of the joint family funds, which had become due in the life-time of A, claiming
extension of time on the ground of his minority. The suit is barred by time. The period of limitation
began to run from the date on which the loan was advanced by A, the Karta of the joint family
inasmuch as, being the Karta of the family he represented B also and could have in the capacity
brought the suit to recover the loan. Hence, subsequent disability of B cannot stop the running of
time.
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Computation of period of limitation.

Union of India v. Tata Engineering & Locomotive Co. Ltd.,

True it is that in terms of Section 9 when time has begun to run, no subsequent disability or inability
to institute a suit or make an application stops it. But Section 9 does not provide for a computation
of the period of limitation.

Exception.

The proviso to Section 9 contains the only exception laid down by the Limitation Act to the general
rule that once time begins to run, no subsequent disability or inability to sue can stop it. The proviso
lays down that when the administration of an estate has been given to a debtor of the deceased, no
time will run against such a debtor until the administration of estate which was entrusted to him
has been finished. In such cases, the law prevents the duty of property administering the estate to
come into conflict with the right of the person to sue for the debt, the hand to give and the hand to
receive is the same.

Effect of appeal on running of time.

Under Section 9 time for execution of a decree starts running from the date of the trial Court decree
and there is no provision for arresting the running of limitation thereafter. But the appellate decree
is the final decree and the only decree capable of being executed after it has been passed, whether
the same reverses, modifies or confirms the decree of the Court from which the appeal was made.

Rajendra Nath Tewari v. Board of Revenue, U.P., at Allahabad

Held, that in the instant case, the decree of the Second Appellate Court was the only executable
decree after the Second Appeal had been dismissed, and the decree-holder will have a fresh period
of limitation from the date of the decree of the Second Appellate Court.

Joint effect of Sections 6, 7, 8 and 9.

The joint effect of this and previous sections is that if advantage is taken of two disabilities, they
must so overlap each other as to leave no gap of normal period between them, i.e., period which
is free from all disabilities because as soon as such an interval occurs, the time begins to run and
subsequent inability or disability is powerless to stop its running. If it is not a continuing disability
from the beginning (when the cause of action arose), or if one ceases to be under a disability even
for a day, time begins to run against him and subsequent disability of himself or after his death
that of his legal representative, will not avail to save limitation.
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For instance, A, a Hindu minor, is under the guardianship of his own mother Z. He is deprived of
the possession of his family estate by a trespasser Y, while he is yet a minor and under the
guardianship of his own mother Z. While yet a minor, A dies and is succeeded to his estate by the
mother, the erstwhile (former) guardian. Here, time begins to run against the mother as soon as
she succeeds to the property. If the widow of A subsequently adopts a son who is a minor and who
in consequence of the adoption becomes the heir of A, the adopted son cannot claim extension of
time.

Conclusion

The Limitation Act, 1963 is the Act which governs the time period within which one can file a
suit to sue another to get justice. If the suit is filed after the expiration of time period as
specified in this act, thus will be barred by limitation. There are various limitation periods for
different types of actions and if limitation has passed, the claim will be bound by statute and the
claimant may be prohibited from bringing a claim against the purported wrongdoer.
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3. Distinguish between limitation and estoppal.

Introduction
Dealt from Section 115 to 117 of the Indian Evidence Act, 1872. Doctrine of Estoppel is that
provision which prohibits a person from giving false evidence by preventing them from making
contradicting statements in a Court of Law. The objective of this doctrine is to avert the
commission of fraud by one person against another person. This doctrine holds a person
accountable for false representations made by him, either through his words or through his
conduct.

Meaning of estoppel
Section 115 of the Indian Evidence Act, 1872 incorporates the meaning of estoppel as when one
person either by his act or omission, or by declaration, has made another person believe something
to be true and persuaded that person to act upon it, then in no case can he or his representative
deny the truth of that thing later in the suit or in the proceedings. In simple words, estoppel means
one cannot contradict, deny or declare to be false the previous statement made by him in the Court.

Nature and scope of doctrine of estoppel

The nature of estoppel has been discussed in the Indian Evidence Act, 1872, which can be divided
into the following three aspects-

• Rule of evidence: It can be presumed that this rule and the notion of this doctrine of
estoppel’s principle have some similarities that neither can be challenged nor disputed. This
doctrine plays an important role by preventing a party from denying the statement, which
he himself previously stated to be true. Moreover, this doctrine can be differentiated from
the rule due to the two evidential characteristics of an estoppel.
• Matter of pleading: This point states that the party must state the relevant fact in his
pleading along with the reasons that made him rely on the doctrine of estoppel in his matter,
subject to the exception to the rule that facts can only be pleaded and not the evidence under
normal circumstances.
• Substantive Law: This doctrine comes under substantive law and not procedural law as it
deals with the procedure of a case. In the event that a plaintiff is prevented from establishing
the required facts or evidence, it may act as a defence and help with claims for equitable
relief. Therefore, it can be considered a substantive law.

Illustration

1. Simran, a leading entrepreneur, wants to buy a car. Raj is her good friend who owns a
classic car of great worth. When Simran contacts Raj to help her in purchasing a car, he
says that she can buy his car which he has been planning to sell for some time now. Simran
 224

buys his car. Later on, the car becomes Raj’s property. Raj takes the defense that when he
sold that car to Simran, he had no title over it. The court held that Raj would be liable and
will have to prove his want of title.
2. If Thanos is an employee of company XYZ but in court, he denies to be an employee of
that company, then, later on he could not claim the salaries and emoluments from that
company.
3. A, an agent of C, mortgaged his property to B which he was in the possession of but was
not the owner. B, the mortgagee, in good faith, believing the representation to be true took
the mortgage. Thereafter, he obtained a decree and the property was sold. The real owner
of the property, C, claimed that it was his property and that A had no power to mortgage
them. The court would stop A from making such a claim under the doctrine of estoppel.
4. M, a tenant in the house of N, falsely representing to Q that he had transferable rights over
the property and thereafter transferring property to N, later on, cannot claim that he had no
transferable interest in the property. He would be estopped from doing so under the doctrine
of estoppel.

Types of estoppel under doctrine of estoppel

Estoppel by a matter of record or quasi-record

Alike res judicata once a court has given the judgement, the parties, their representatives, their
executors, etc. all are bound by that decision. This doctrine stops the parties to a case from raising
another suit in the same matter or to dispute the facts of the case after the decision has been made
by the court.

Situations where estoppel by record or quasi record arises are as follows:

1. Where the dispute between the parties on the facts have been decided upon by the tribunal
which was entitled to take decision in the particular case, and when the same dispute arises
again in the matter subsequent to the first one, between the same parties;
2. Where the issue raised between the parties which has been resolved by the judiciary,
incidently comes again into question in the subsequent proceedings between the same party.
3. Where an issue raised on the facts, affecting the status of the person or thing, has been
willingly determined in a manner that in the final decision it be included as a substantive
part of the judgment in rem of the tribunal that has been setup to decide the particular case.
This should take place when the same issue comes directly in question in subsequent civil
proceedings between any party whatever.
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This doctrine has been dealt in:

• Section 11 to 14 of the Code of Civil Procedure, and

• Section 40 to 44 of the Indian Evidence Act, 1872.

Estoppel by deed
It is the concept where two parties enter into an agreement by way of a deed as to certain facts.
This implies that neither he nor his representatives or any person claiming under him can deny the
facts mentioned and agreed in the deed.

For example, Mickey Shroff decided to make his will in favor of his two sons, Lion Shroff and
Wolf Shroff, and his daughter’s son Deer Shroff. Lion Shroff induced some third person to buy
Deer Shroff’s share of the property. This deed was attested by Wolf Shroff who was not aware of
the facts mentioned in the deed. Deer Shroff died without giving birth to a male child. Lion Shroff
filed a suit to recover the property from the third party. Here Lion Shroff would be estopped but
not Wolf Shroff as Wolf was not aware of the facts of the deed.

Estoppel by pais or estoppel by conduct

The elucidated meaning of ‘Estoppel by Pais’ is ‘Estoppel in the Country’ or ‘Estoppel before the
public’. It has been discussed in Sec. 115 to 117.

Estoppel by conduct means when a person through agreement, misrepresentation or negligence

makes the other person believe in certain things upon which the other person had taken some action
causing a change in their current situation, then the first person cannot deny the veracity of the
statements given by him in the latter stages.

Sardar Chand Singh v. Commissioner; Burdwan Division,

Chang Singh, the Managing Director of Messrs., was denied any revolver license as he was
accused in a gruesome murder case and other cases. When the District Magistrate issued an order
that he could not hold any revolver license on the grounds of public order and safety, Chand made
no appeal. This planted a reasonable belief that he has consented to it. Later on when makes an
application to the District Magistrate to reconsider his case, it was denied following the doctrine
of ‘Estoppel by Conduct’.

Estoppel by election
According to the doctrine of estoppel by election the person receiving the gift or claiming the right
can enjoy one of them and not both of them. So Meena cannot now go back upon it and take the
other option.
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Illustration

Kantabai offers his maid Meena Malhotra her second-hand car. Meena out of generosity says that
she would not take it for free. Kantabai says to Meena that she has the freedom to take it as a gift
or to make a payment as per her willingness. Meena has the option to either take it as a gift or
claim a right over it by purchasing the car. Now, Meena makes the payment and takes the car in
her possession. After a year, Meena becomes bankrupt and asks Kantabai to return the money
which she had given to her as the payment for buying the car, as she now wants it as a gift.

Revision v. Lekshmy Sukesini Devi,

the court clearly stated that: Parties should not take inconsistent pleas as it makes the conduct far
from satisfactory. And also that parties should not take inconsistent stands and lengthen the
proceedings unnecessarily.

Equitable estoppel
When a person tries to take a legal action that would conflict with his previously given statements,
claims or acts, this legal principle would prohibit him from doing so. So, the plaintiff would be
stopped from bringing a suit against the defendant who acted pursuant to the commands of the
plaintiff.

Illustration

Suppose Tetanus gives his gold jewellery to Vaccine, the most famous jeweller in the town, for
repairing. Vaccine, while handing over the jewellery to Tetanus after repair informed that a mark
has been made by mistake at the back of the jewellery. Tetanus didn’t mind that and took the
jewellery happily with her. Later on if she brings a suit against Vaccine, she would be stopped
under this principle as her suit would run counter to her earlier statement of forgiveness for the
damages caused to her jewellery by mistake.

Estoppel by negligence
This principle allows one party to claim a right over the property of another party who might not
be having the possession of it. This reflects that the person being estopped owes a duty to the other
person whom he had led into wrong belief.

Mercantile Bank of India v. The Central Bank of India Limited,

a firm of merchants committed a series of fraud and until it came to the notice of the authorities,
enjoyed high repute in the state of Madras. This firm was known for groundnuts-merchant and
exporters. Both the plaintiff and defendant financed the consignments of ground-nuts purchased
and each received a ‘railway receipt’ in respect of their consignment.
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Illustration

The merchants needed a loan so what they did was, at first pledged the railway receipt from the
Central Bank to obtain a loan and then again fraudulently pledged it to the Mercantile Bank also.
The plaintiff, the Central Bank had filed a suit for conversion of the goods against Mercantile
Bank. It was held that there was no negligence as Central Bank didn’t owe a duty to the Mercantile
Bank and so Central Bank was not estopped from having a prior title as ‘pledgees’.

Estoppel by Benami Transaction

Illustration

Badrinath, the owner of land, decides to hand over the apparent ownership of his property to Kaju
Rastogi. Badrinath does so and acknowledges that Kaju has paid him the consideration for the
promise. Now, Kaju Rastogi sells this land to Tripti Sanoon, a film actress, in good faith and for a
good amount of money, as by gaining ownership over the property Kaju has also gained the right
of disposition over that property. Badrinath hates Tripti Sanoon and asserts his title over the
property. But he would be estopped from doing so under the given legal principle. And this is what
benami transaction means.

Li Tse Shi v. Pong Tse Ching,

the husband died in the year 1925. His entire will was made in the name of his wife. In 1930 their
son misrepresenting somebody else to be his father bought the property of his father from the same
seller who had sold the land to the father. Later the grandson of the person who died, rented the
land to a company and when the company stopped paying the rent and the grandson complaint,
the wife or the mother claimed the title over the land as her husband had made the will in her name.
But it was held that the principle of estoppel by benami transaction could be applied as she was
already aware of the fraudulent selling and purchasing of land by her son.

Estoppel on a point of law

The Doctrine of estoppel does not apply to statutes but only to the facts. Estoppel, if applied to the
law, would go against public policy and general welfare of the society. The principle of estoppel
can never be invoked for the purpose of defeating the provisions of law.

For example, if a minor, representing himself to be a major, enters into an agreement with Mr
Kanjilal for the sale of a plot of land, the agreement would be void. And nothing would stop the
minor from taking the defence that the agreement was void ab initio, as it was true that at the time
when he entered into the agreement he was a minor.
 228

Jatindra Prasad Das v. State of Orissa & Ors.,

the High Court of Orissa laid down that estoppel cannot arise against statutes and statutory
provisions. It was further said that statutory provisions cannot be disregarded in any case, not even
on the grounds of precedent or previous administrative decision.

Olga Tellis & Ors. v. Bombay Municipal Corporation & Ors.,

pavement dwellers who migrated to India, because of proximity to their place of work started
living on the pavements in Bombay. Bombay Municipal Corporation (BMC) initially allowed them
to stay as they constituted the major part of the population of Bombay.

Later on when the pavement dwellers were evacuated, Olga Tellis, a journalist raised questions
against this action. It was upheld that no estoppel can arise against the Constitution of India or
against the fundamental right, i.e. the right to life and livelihood in this case.

Jai Jai Ram Objector v. Srimati Laxhmi Devi,

the court gave a verdict that what appears to be a law is actually a law or not is dependent on the
truth of the facts and on the situation of the parties which keeps on changing. Whether what
impersonates a law is really a law or not has to be decided by the courts.

National Oxygen Ltd., Madras v. Tamil Nadu Electricity Board,

relying on the Schedule mentioned in the Act a new industry was given concession on tax for the
next five years from the days of its commencement. The state Government of Madras under a
section of the Act had the power to bring amendments to the schedules of the Act. Pursuant to this,
the State government brought an amendment to the above-mentioned schedule and made it a
subject to certain conditions. This was done before the completion of 5 years of that industry. The
industry in his suit pleaded estoppel to which the court said that no estoppel would arise against
the government.

Proprietary estoppel
We often see promises being made and later broken. While in some cases we can do nothing about
it, but in certain circumstances, particularly in matters related to land or property, there is a
possibility to bring a claim to enforce a broken promise. This is called proprietary estoppel.

James v. James,

Allen and Sandra had two daughters and one son. The son worked for the major part of his life
with his father eventually becoming a partner. When making the will, Allen gave some land to one
 229

of his daughters which created a dispute in the family leading to the dissolution of the partnership.
Later Allen distributed his property amongst the three ladies of his house, cutting down the name
of his son. Son brought a case of proprietary estoppel against the women and also challenged the
validity of Allen’s will. It was held that nothing has been shown or said with clarity that Aleen
would transfer his entire will to him.

Estoppel by convention
Republic of India v. India Steam Ship Company Limited,

it was observed that estoppel by convention arises when parties to a transaction assume the facts
or the law. This assumption might be made by both the parties or either of the parties. Under this
principle, parties to an agreement could not deny to the assumed facts, because if the party or
parties are allowed to go back on their assumptions, it would be unfair and lead to injustice.

Estoppel by acquiescence
When one party, through a legitimate notice, informs the other party about the facts of a claim,
and the other party fails to acknowledge it, that is, neither he/she challenges it nor does refute it
within a reasonable period of time. The other party now would be estopped from challenging it or
making any counterclaim in the future. The other party is said to have accepted the claim though
reluctantly, that is, he/she has acquiesced it.

Contractual estoppel
Pappi Lahari from Bihar entered into a contract with Batman from Chennai whereby Pappi would
supply 100 bales of cotton to Batman in exchange of 25,000 rupees. While signing the contract
they agreed to the fact that in case of any dispute between them, the case would be filed in the
court of in Tamil Nadu. Once agreed the parties cannot, later on, assert to change the jurisdiction
in the particular case. They are bound by the principle of contractual estoppel.

Conflict estoppel
When one person through his speech or conduct makes the other person believe in a particular
thing and induces him to act upon it, he would be estopped from taking any conflicting or contrary
or erratic position, which could cause loss to the other party.

For example, Sattu in an agreement with Kabir says that he would not roam with his girlfriend if
he offers him a ride on his bike every day until his birthday. Kabir follows his instructions. Sattu
after few days says that the number of rides would be two per day and only then will he not chase
Kabir’s girlfriend. After 2 months he asks that the bike ride be replaced with a ride in his car. Here
Sattu cannot take conflicting positions. Once there has been an agreement to offer one ride
everyday on the bike, he cannot contradict that and make other demands, he would be estopped
from doing so.
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LAW OF LIMITATION:

The Limitation Act, 1963 is the Act governed a time period in which a person can file a suit to sue
another to get justice. If the suit is filed after the expiration of time period as specified in this
limitation act, thus, it will be bared or cannot be maintained in a court. It also includes provisions
for condonation, delay etc. The Limitation Law was firstly established in 1859 which came into
exist in 1862. The law of limitation developed in stages and finally comes in the form of Limitation
Act in 1963. It was enacted on 5th October, 1953 and came into force from 1st January, 1964.

Objective of Limitation Act

The main objective of the Limitation Act, 1963 is to provide a specific time frame in which a
person can file a suit in a court. If such law came not in exist then it will lead to never ending
litigation as the person can file a suit for the cause of action which was done many years back. It
prevents disturbance in society by suppressing fraud and perjury. In other words the law of
limitation aims to protect the lengthy process of penalizing a person indirectly without an offence.
In Balakrishnan v. M.A. Krishnamurthy, AIR 1988 SC 3222 it was held by the Supreme Court that
the Limitation Act is based upon a public policy which is used for fixing a life span of a legal
remedy or unnecessary delay for the purpose of general welfare.

Legal Principles

Article 137 of the limitation Act state will apply to any petition or application of any act filled civil
court but it is not limited to the Code of Civil Procedure of which time frame is not mention in
Limitation Act.

Section 3 of the act time limits of filling suit /Appeal/Application or other proceedings would be
barred. This section equally lies on general public and also government through special time period
prescribe for the state in section 25 of article 112 of limitation act. The construction of this section
in which a suit, appeal or application is dismissed if it barred by the time period prescribed by
legislature. Limitation is not pleaded in defense except when such limitation is extended by the
provisions of section 4 to 24 (inclusive) applicable of such suit, Appeal or application. However,
It does not attracted to ever case. Section 3(1) extends to suit as well as appeals and application.

Section 4 of the act provides that such prescribed time of suit appeal or application expires on a
date when the courts are closed. The proceeding may be held when the court re opens.

Section 5 of the act provides an appeal or application other than mention in Order XXI of the code
of civil procedure, may be admitted after the prescribed period in this act as per the discretion of
the court if the party satisfied the court by the sufficient cause of delay for not making such
application within time frame. It is also noted that this section is applied only on the appeals and
applications or not to the suits.
 231

Sufficient cause for Condonation of Delay

What constitutes sufficient cause has not specifically as hard and fast rule. The court is required to
look into all the facts of the case. The question has to be decided on the facts and circumstances
existing in particular case. No doubt it is a discretionary power of the court but such discretion will
be exercised on sound judicial principle or not mere fancy or whims of the court. No court shall
exercise its power in arbitrary manner not can act in vague manner. Sufficient cause may be
determined by reference to the circumstances of the case such as:
(I) whether the cause which withheld him for filling the appeal within the time was beyond the
control of the party;
(ii) Whether the party exercised sufficient care and diligence in filling the appeal;
(iii) Whether his intention was bonafide.

Computation of the period of Limitation

Part III of the Limitation Act, 1963 deals with the computation of the period of the limitation.
The rules of computation a period of limitation are not intended by the legislature to apply only to
period of limitation prescribed by the schedule but apply also to periods of limitation provided for
by other enactments;
Durag v. Pancham,
The computation periods exclude the day on which such period is to be reckoned. In case any
appeal or application for review or revision has been filed on the day in which the judgment is
pronounced shall be excluded from the computation period and also the time period taken to get
copy of the judgment or order shall also be excluded. Thus time period starts from the day in which
the order of the judgment is received. The limitation of filling of an appeal before the court
commences from the date of judgment and not the date of decree is signed

DIFFERENCE BETWEEN ESTOPPEL AND LIMITATION:

Sl
Estoppel Limitation
no.

The doctrine of estoppel falls under Limitation, on the other hand, falls under procedural
substantive law and not procedural law, as law.
1.
procedural law discusses the procedure that
needs to be followed in a case.

This doctrine of estoppel states that in a Limitation, on the other hand, prohibits a person from
situation where a person says a statement to exercising his right to sue another person after the
2.
be true, later he is prohibited from making limitation period is over. For filing a case, a certain
a contradictory statement to the said one or period is specified. If any person files a case beyond
that limitation period, the court will dismiss that case
 232

denying the truth of a statement that was unless the party can satisfy the court with appropriate
said by him earlier. reasons for his delay in filing the case.

When a case is filed in the court, this In cases of limitation, if a delay in filing suit occurs due
doctrine can be used by either party to the to any of the actions of the defendant, the period of
3. suit. There is no restriction for either of the limitation will remain available to the plaintiff. This is
parties to the suit. because the actions of the defendant prevented the
plaintiff from filing the petition on time.

Conclusion

The Limitation Act, 1963 is the Act which governs the time period within which one can file a
suit to sue another to get justice. If the suit is filed after the expiration of time period as
specified in this act, thus will be barred by limitation
 233

4. "State the general rules as to calculation or period of limitation.

Introduction

The Limitation Act, 1963 came into force with effect from 1st January 1964. It was enacted to
consolidate and amend the law for the limitation of suits and other proceedings and prescribes
different periods of limitation for suits, appeals, and applications.

Sec 12: Exclusion of time in legal proceedings.

(1) In computing the period of limitation for any suit, appeal or application, the day from which
such period is to be reckoned, shall be excluded.
(2) In computing the period of limitation for an appeal or an application for leave to appeal or for
revision or for review of a judgment, the day on which the judgment complained of was
pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed
from or sought to be revised or reviewed shall be excluded.
(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an
application is made for leave to appeal from a decree or order, the time requisite for obtaining a
copy of the judgment shall also be excluded.
(4) In computing the period of limitation for an application to set aside an award, the time requisite
for obtaining a copy of the award shall be excluded

State of Orissa v. Krishnaprasad

It is only when an application is made for certified copies of the judgment and decree for the
purpose of filing an appeal, the appellant is entitled to the time occupied by the office for preparing
copies. When there is no application, the appellant cannot be entitled to more than 90 days for
filing his appeal.

Vidyacharan Shukla v. Khulchandra Baghol,

The exclusion of time provided for in Section 12 is permissible in computing the period of
limitation for filing an appeal in the High Court under the Representation of the Peoples Act, 1951.

Sec 13: Exclusion of time in cases where leave to sue or appeal as a pauper is applied for.

In computing the period of limitation prescribed for any suit or appeal in any case where an
application for leave to sue or appeal as a pauper has been made and rejected, the time during
which the applicant has been prosecuting in good faith his application for such leave shall be
excluded, and the court may, on payment of the court fees prescribed for such suit or appeal, treat
 234

the suit or appeal as having the same force and effect as if the court fees had been paid in the first
instance

Sec 14: Exclusion of time of proceeding bona fide in court without jurisdiction.
(1) In computing the period of limitation for any suit the time during which the plaintiff has been
prosecuting with due diligence another civil proceeding, whether in a court of first instance or of
appeal or revision, against the defendant shall be excluded, where the proceeding relates to the
same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction
or other cause of a like nature, is unable to entertain it.

(2) In computing the period of limitation for any application, the time during which the applicant
has been prosecuting with due diligence another civil proceeding, whether in a court of first
instance or of appeal or revision, against the same party for the same relief shall be excluded,
where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or
other cause of a like nature, is unable to entertain it.

(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure,
1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted
on permission granted by the court under rule 1 of that Order, where such permission is granted
on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or
other cause of a like nature

Mathura Singh v. Bhawani Singh,

The principle of Section 14 is the protection against the bar of limitation of a person honestly doing
his best to get his case tried on the merits, but failing through the Court being unable to give him
such a trial.

Sec 15: Exclusion of time in certain other cases.

(1) In computing the period of limitation of any suit or application for the execution of a decree,
the institution or execution of which has been stayed by injunction or order, the time of the
continuance of the injunction or order, the day on which it was issued or made, and the day on
which it was withdrawn, shall be excluded.

(2) In computing the period of limitation for any suit of which notice has been given, or for which
the previous consent or sanction of the Government or any other authority is required, in
accordance with the requirements of any law for the time being in force, the period of such notice
or, as the case may be, the time required for obtaining such consent or sanction shall be excluded
 235

(3) In computing the period of limitation for any suit or application for execution of a decree by
any receiver or interim receiver appointed in proceedings for the adjudication of a person as an
insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding
up of a company, the period beginning with the date of institution of such proceeding and ending
with the expiry of three months from the date of appointment of such receiver or liquidator, as the
case may be, shall be excluded.

(4) In computing the period of limitation for a suit for possession by a purchaser at a sale in
execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted
shall be excluded.

(5) In computing the period of limitation for any suit the time during which the defendant has been
absent from India and from the territories outside India under the administration of the Central
Government, shall be excluded.

Tribeni Prasad Dhandhania v. Sita Ram

A party seeking to take advantage of Section 15 must show that he was earlier restrained by an
order from making the prayer, which he is now making, if he could have done earlier what he is
trying to do now, he cannot move the application of Section 15.

Conclusion

The Limitation Act, 1963 is the Act which governs the time period within which one can file a
suit to sue another to get justice. If the suit is filed after the expiration of time period as
specified in this act, thus will be barred by limitation
 236

5. Explain the salient features of Limitation Act.

Introduction

The Limitation Act, 1963 came into force with effect from 1st January 1964. It was enacted to
consolidate and amend the law for the limitation of suits and other proceedings and prescribes
different periods of limitation for suits, appeals, and applications.

History of the Act

The law of limitation developed in stages and finally took the shape of the Limitation Act of 1963.
Prior to 1859, there was no law of limitation applicable to the whole of India. It was only in 1859
that a law relating to limitation (Act XIV of 1859) was enacted that was applicable to all the Courts.
The Limitation Act was subsequently repealed in the years 1871, 1877, 1908. The Limitation Act,
1908 was repealed by the Third Law Commission and the Limitation Act of 1963 came into force.
The 1908 Act referred only to foreign contracts whereas the 1963 Act talked about contracts
entered into the territory of Jammu and Kashmir or in a foreign country.

Object of the Act

The Law of limitation prescribes a time period within which a right can be enforced in a Court of
Law. The time period for various suits has been provided in the schedule of the Act. The main
purpose of this Act is to prevent litigation from being dragged for a long time and quick disposal
of cases which leads to effective litigation. As per the Jammu and Kashmir Reorganisation Act,
2019, provisions of the Limitation Act will now apply to the whole of India. The Limitation Act,
1963 contains provisions relating to the computation of time for the period of limitation,
condonation of delay, etc. The Limitation Act contains 32 sections and 137 articles and the articles
are divided into 10 parts.

Whether the Act is exhaustive?

The Limitation Act is exhaustive with respect to all matters expressly dealt in it. It cannot be
extended by analogy. Ordinarily, the Act applies only to civil cases except in the matter expressly
and specifically provided for that purpose.
 237

Retrospective Operation

BK Education Services Private Limited v. Parag Gupta and Associates,

the Supreme Court clarified that since the law of limitation is procedural in nature, it will be applied
retrospectively.

Thirumalai Chemicals Ltd v. Union of India

The Supreme Court in observed that statutes of limitation are retrospective so far as they apply to
all legal proceedings brought after their operations for enforcing causes of action accrued earlier.

Excise and Taxation v. M/S Frigoglass India Private Ltd,

the Punjab and Haryana High Court ruled that It is well-settled that the law of limitation is a
procedural law and operates retrospectively unless it has been provided differently in the amending
statute. In other words, unless there is a contrary intention manifested by express or necessary
implication of the legislation itself, procedural law is generally retrospective law.

Limitation Bars Remedy

Section 3 lays down the general rule that if any suit, appeal or application is brought before the
Court after the expiry of the prescribed time then the court shall dismiss such suit, appeal or
application as time-barred. The law of limitation only bars the judicial remedy and does not
extinguish the right. In other words, It means that the statute of limitation prescribes only the period
within which legal proceedings have to be initiated. It does not restrict any period for setting up a
defence to such actions. Hence, the original right to suit is not barred. However, Section 27 is an
exception to this rule.

Limitation Does Not Bar Defence

The law of limitation does not restrict the defendant if he raises a legitimate plea in his defence
even though the suit is time-barred. It was held in Rullia Ram Hakim Rai v. Fateh Singh, the bar
of limitation does not stand in the way of defence. It only bars action and it is only its recovery
that is time-barred. There is no provision that prohibits or prevents a debtor from clearing his time-
barred outstandings.
 238

Application to courts

Under Section 3(c), an application by a notice of motion in a High Court can be made when the
application is presented to the proper officer of that court. If the period prescribed for any
application expires on the day on which the court is closed, the application shall be made on the
day on which the court reopens as per Section 4.

Plea of limitation: Duty of Court

The Court is under an obligation to dismiss a suit if it is filed beyond the time prescribed by the
Limitation Act. The provisions of Section 3 are mandatory and the Court will not proceed with the
suit if it is barred by time. Under Section 3 of the Act, it is clearly mentioned that every suit
instituted, appeal preferred and the application made after the prescribed period shall be dismissed.
Even though limitation has not been set up as a defence.

Starting point of Limitation

The time from which period of limitation begins to run depends upon the subject matter of the case
and a specific starting point of such period is provided extensively by the Schedule in the Act. It
generally starts from the date when the summons or notice is served, or the date on which the
decree or judgment is passed, or the date on which the event that forms the basis of the suit takes
place. The Supreme Court in Trustee’s Port Bombay v. The Premier Automobile held that the
starting point of limitation is the accrual of the cause of action.

Expiry Period of Limitation When Court is Closed

When a court is closed on a certain day and the period of limitation expires on that day, then any
suit, appeal or application shall be taken up to the Court on the day on which it reopens. This means
that a party is prevented not by his own fault but because of the Court being closed on that day.
Section 4 of the Limitation Act provides that when the period of limitation is prescribed for any
suit, appeal or application and such period expires on a day when the Court is closed, such suit,
appeal or application shall be instituted, preferred or made on the day on which the Court reopens.
The explanation to this section mentions that within the meaning of this Section a Court shall be
deemed to be closed on any day if during any part of the normal working of the Court it remains
closed on that day.

For instance, if a Court reopens on 1st January and the time for filing the appeal expires on 30th
December (the day on which the Court remains closed) then the appeal can be preferred on the 1st
of January when the Court reopens.
 239

Condonation of Delay

Condonation of delay means that extension of time given in certain cases provided there is
sufficient cause for such delay. Section 5 talks about the extension of the prescribed period in
certain cases. It provides that if the appellant or the applicant satisfies the court that he had
sufficient cause to not prefer the appeal or application within that period, such appeal or application
can be admitted after the prescribed time. This Section further mentions that an application made
under any of the provisions of Order XXI of the Code of Civil Procedure, 1908 (5 of 1908). The
explanation states that in ascertaining or computing the period prescribed when the applicant or
appellant has been misled by any order, practice or judgment of the High Court. It will be a
sufficient cause within the meaning of this section.

However, If a party does not show any cogent ground for delay then the application, suit or appeal
will be rejected by the court.

Sufficient Cause

Sufficient cause means that there should be adequate reasons or reasonable ground for the court to
believe that the applicant was prevented from being proceeding with the application in a Court of
Law.

Collector (LA) v. Katiji

Facts

In this case, an appeal was preferred by the State of Jammu and Kashmir against the decision of
enhancing the compensation in the matter of acquisition of land for a public purpose, raising
important questions with regard to principles of valuation. An appeal for condonation of delay was
filed but was dismissed by the High Court as time-barred because it was four days late. The State
later appealed to the Supreme Court by special leave.

Held

The Supreme Court allowed the appeal and ruled that the expression ‘sufficient cause’ under
Section 5 is adequately elastic to enable the Court to do substantial justice to parties. The order of
the High Court dismissing the appeal as time-barred was set aside and the matter was remitted
back to the High Court to dispose of the appeal on merit after affording a reasonable opportunity
of hearing to both sides.
 240

Delay by Government

Under Section 25, where a property belonging to the Government over which access and use of
light or any way or watercourse or the use of any water, have been peaceably and openly enjoyed
as an easement and as of a right by any person claiming title thereto, without any interruption for
thirty years, the right to such access and use of light or air, or way or waterway, or use of their
easement shall be absolute and indefeasible, In case of a private property it is twenty years.

Exclusion of Time

Section 12 to Section 15 deals with the exclusion of time under the Limitation Act.

Section 12 talks about the time that has to be excluded for computing time of limitation in legal
proceedings. Sub-section (1) says that the day on which the cause of action arises that day shall be
excluded while computing the period of limitation for any suit, appeal or application, the day from
which such period is to be reckoned.

Section 13: where an application for leave to sue or appeal as a pauper (indigent) has been made
and rejected, the time spent by the applicant in prosecuting in good faith shall be excluded.

Section 14: if a party is proceeding in good faith in a court without jurisdiction any suit or
application the time spent by the party should be prosecuting another civil proceeding with due
diligence and that prosecution shall be in good faith shall be excluded.

Section 15: the following time shall be excluded:

• The day of the issuance and withdrawal of the stay order or injunction.
• In case where a previous consent or sanction of the government is required – the time spent
on obtaining the consent or sanction.
• In case of proceedings for winding up of a company- the time during which the receiver or
liquidator was appointed.
• In case of a suit for possession by a purchaser at a sale in execution of decree- the time
during which proceeding to set aside sale has been prosecuted.
• The time during which the defendant is absent from India and under territory outside India
under the administration of the Central Government.
 241

Postponement of Limitation

Postponement of limitation means extending the period of limitation. Section 16 to 23 of the Act
deals with the postponement of limitation.

Extinguishment of Right

General Rule that the law of limitation only bars the remedy but does not bar the right
itself. Section 27 is an exception to this rule. It talks about adverse possession. Adverse possession
means someone who is in the possession of another’s land for an extended period of time can claim
a legal title over it. In other words, the title of the property will vest with the person who resides
in or is in possession of the land or property for a long period. If the rightful owner sleeps over his
right, then the right of the owner will be extinguished and the possessor of the property will confer
a good title over it. Section 27 is not limited to physical possession but also includes de jure
possession. As per the wordings of this Section, it applies and is limited only to suits for possession
of the property.

Void Order: Limitation

An order that exceeds the jurisdiction of the court is void or voidable and can be taken up in any
proceeding in any court where the validity of the order comes into question.

Union Carbide Corporation. v. Union of India (1991)

Union Carbide (India) Ltd (UCIL) was a subsidiary of the Union Carbide Corporation (UCC),
New York. One of the world’s largest disaster occurred on the fateful night of 2nd and 3rd
December 1984. Methyl Isocyanide Gas (MIC) leaked from the tanks causing the death of
thousands of people.

The Bhopal District Court made an order for payment of compensation of rupees 350 crores as
interim compensation. This award was challenged in the High Court and the compensation amount
reduced to rupees 250 crores. Later, both the UCC and the Union of India appealed by special
leave against the order of the High Court. The Supreme Court recorded settlement of claims in the
suit for U.S. Dollar 470 million and for the termination of the civil and criminal proceeding. Soon
petitions were filed in the Supreme Court challenging the constitutional validity of the Act. The
judgment, in this case, was pronounced on 22 December 1989 upholding the validity of the
Act.
the Union Carbide case serves as an exception to the Limitation Act for it excludes the Limitation
Act,1963 from the purview of the Bhopal Act, 1985.
 242

6. Discuss the effects of fraud or mistake on the period of limitation.

Introduction

The Limitation Act, 1963 came into force with effect from 1st January 1964. It was enacted to
consolidate and amend the law for the limitation of suits and other proceedings and prescribes
different periods of limitation for suits, appeals, and applications.

Definition

Section 2(j): defines “period of limitation” as the time prescribed by the Schedule to institute any
suit, appeal or application, and “prescribed period” as the period of limitation determined as per
the provisions of the Act.

Sec 17: Effect of fraud or mistake.

(1) Where, in the case of any suit or application for which a period of limitation is prescribed by
this Act,
(a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or
(b) the knowledge of the right or title on which a suit or application is founded is concealed by the
fraud of any such person as aforesaid; or
(c) the suit or application is for relief from the consequences of a mistake; or
(d) where any document necessary to establish the right of the plaintiff or applicant has been
fraudulently concealed from him

the period of limitation shall not begin to run until the plaintiff or applicant has discovered the
fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a
concealed document, until the plaintiff or the applicant first had the means of producing the
concealed document or compelling its production:

Provided that nothing in this section shall enable any suit to be instituted or application to be made
to recover or enforce any charge against, or set aside any transaction affecting, any property which

(i) in the case of fraud, has been purchased for valuable consideration by a person who was not a
party to the fraud and did not at the time of the purchase know, or have reason to believe, that any
fraud had been committed, or

(ii) in the case of mistake, has been purchased for valuable consideration subsequently to the
transaction in which the mistake was made, by a person who did not know, or have reason to
believe, that the mistake had been made, or
 243

(iii) in the case of a concealed document, has been purchased for valuable consideration by a
person who was not a party to the concealment and, did not at the time of purchase know, or have
reason to believe, that the document had been concealed.

(2) Where a judgment-debtor has, by fraud or force, prevented the execution of a decree or order
within the period of limitation, the court may, on the application of the judgment-creditor made
after the expiry of the said period extend the period for execution of the decree or order: Provided
that such application is made within one year from the date of the discovery of the fraud or the
cessation of force, as the case may be.

Krishna Kumar Khemka v. Jagdish Narayan Bhan,

Different valuers may give different opinions with regard to the value of any commodity, and such
difference in opinion of valuers can by no means be said to furnish grounds of mistake to enable a
litigant to invoke the benefit of Section 17(1)(c).

Conclusion

The Limitation Act, 1963 is the Act which governs the time period within which one can file a
suit to sue another to get justice. If the suit is filed after the expiration of time period as
specified in this act, thus will be barred by limitation
 244

7. State the essentials of valid acknowledgement.

Introduction

The Limitation Act, 1963 came into force with effect from 1st January 1964. It was enacted to
consolidate and amend the law for the limitation of suits and other proceedings and prescribes
different periods of limitation for suits, appeals, and applications.

Definition

Black’s Law Dictionary: acknowledgement is defined as, “a recognition of something as being

factual.” In other words, an acknowledgement verifies a document’s authenticity by evidencing
that it has the genuine consent and approval of the named person(s) who have executed it.

Sec 18: Effect of acknowledgment in writing

(1) Where, before the expiration of the prescribed period for a suit or application in respect of any
property or right, an acknowledgment of liability in respect of such property or right has been
made in writing signed by the party against whom such property or right is claimed, or by any
person through whom he derives his title or liability, a fresh period of limitation shall be computed
from the time when the acknowledgment was so signed.

(2) Where the writing containing the acknowledgment is undated, oral evidence may be given of
the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of
1872), oral evidence of its contents shall not be received.

Requisites of a valid acknowledgement

1. Acknowledgement must be made before the expiration of the period of limitation.-

The acknowledgement must be made after the period of limitation has begun to run and while it is
actually running. The expression, "period prescribed" will include any period prescribed by the
Act, whether in the body of the Act or in the first Schedule. Thus, an acknowledgement may be
made before the expiry of the period of limitation as extended by the operation of Section 14 of
the Act
 245

Kamta Prasad v. Gulzari Lal

An acknowledgement made after the expiry of the original period of limitation but within the
period as extended by a Provincial Act, should be deemed to be an acknowledgement or payment
made within the period prescribed.

2. Acknowledgement of liability must be in writing.

Hence an oral acknowledgement is not sufficient. Similarly, a mere payment of a sum of money
towards the debt is not sufficient under this section although such payment may be intended as an
acknowledgement of the debt.

3. Acknowledgement must be signed by the person making the acknowledgement or by his

agent duly authorised in this behalf.

An acknowledgement not so signed will not be sufficient for the purpose of this section. Thus, a
telegram cannot constitute a sufficient acknowledging under this section as telegrams are not
signed by the parties sending them. Signature of an agent acknowledgement the debt will not do
unless the agent is duly authorised to make such an acknowledgement. A general authority is of
no avail. A special authority to acknowledge such a debt is necessary.
M. Achi v. P.S.M.S. Chettiar,
Signed initials instead of full signature do not affect the binding nature of legality of the
acknowledgement.

4. Acknowledgement must be made by the party against whom any property or right is
claimed or by some person through whom, he derives title or liability.

It is sufficient under this section if the acknowledgement has been made by a person against whom
the right is claimed in the suit. It is not necessary that at the time when the acknowledgement is
made, such persons must have an interest in the property in respect of which the acknowledgement
is giveh. An auction-purchaser derives his title from the judgment-debtor. Hence, if the judgment-
debtor makes an acknowledgement of liability in respect of a mortgage on property, the
acknowledgement will be binding on the auction-purchaser.

5. Acknowledgement must be in respect of the particular property or right claimed in the

suit or application.

An acknowledgement of liability under this section must be in respect of the particular property or
right claimed in the suit. In other words, unless it is shown that the right acknowledgement is
 246

identical with the right claimed in the suit, the section will not apply. Thus, where the defendant
owes several debts to the plaintiff and acknowledges his liability in respect of a debt and it is not
possible to identify the debt acknowledgement with the one claimed in the suit, the
acknowledgement will be ineffective under this section.

Reet Mahinder Singh Sekhon v. Mohinder Parkash,

even the recital in a sale deed executed by the mortgagee in respect of the transfer to the purchaser,
the rights of recovering the principal amount and interest according to the mortgage deed was
considered as an acknowledgement that mortgage money still remained unpaid and also that
mortgagor had subsisting right of redemption which he could exercise against the mortgagee.

Shiv Lal v. Chetram,

The decision of the Supreme Court is that an authority on the point that certified copy of a
statement made in mutation proceedings cannot serve as an acknowledgement of the mortgage
where neither its original was produced nor any witness was examined to prove the fact that
persons who were shown to have signed the original had, in fact, signed the same or those persons
were mortgagors or their representatives

Florence Misra v. Daulat Ram,

A receipt may serve, other conditions being satisfied as an acknowledgement of the earlier debt
and extend limitation for a suit based on the earlier debt.

Conclusion

The Limitation Act, 1963 is the Act which governs the time period within which one can file a
suit to sue another to get justice. If the suit is filed after the expiration of time period as
specified in this act, thus will be barred by limitation
 247

8. “Limitation bars the remedy, but does not extinguish the right". Explain.

Introduction

The Limitation Act, 1963 came into force with effect from 1st January 1964. It was enacted to
consolidate and amend the law for the limitation of suits and other proceedings and prescribes
different periods of limitation for suits, appeals, and applications.

Object of the Act

• The Law of limitation prescribes a time period within which a right can be enforced in a
Court of Law.
• The time period for various suits has been provided under the schedule of the Act.
• The main purpose of this Act is to prevent litigation from being dragged for a long time
and to quickly dispose of cases which leads to effective and easy litigation and disposal of
cases.

Period of Limitation
Section 2(j) “period of limitation” means the period of limitation prescribed for any suit, appeal
or application by the Schedule, and “prescribed period” means the period of limitation computed
in accordance with the provisions of this Act;

When Period of Limitation Starts

▪ The time from which the period of limitation begins depends on the case's subject matter,
and a specific starting point of such period is provided extensively by the Schedule in the
Act.
▪ It generally starts from the date when the summons or notice is served, or the date on which
the decree or judgment is passed, or the date on which the event that forms the basis of the
suit takes place.

Section 3: Bar of Limitation

Section 3 of the Act provides that any suit, appeal, or application must be made within the
limitation period specified in the Limitation Act.

• If any suit, appeal or application is made beyond the prescribed period of limitation, it is
the duty of the Court not to proceed with such suits irrespective of the fact whether the plea
of limitation has been set up as a defence or not.
• The provisions of Section 3 are mandatory, and the Court can suo motu take note of
question of limitation.
• The question whether a suit is barred by limitation should be decided on the facts as they
stood on the date of presentation of the plaint. It is a vital section upon which the whole
Limitation Act depends for its efficacy.
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• The effect of Section 3 is not to deprive the Court of its jurisdiction. Therefore, decision of
a Court allowing a suit which had been instituted after the period prescribed is not vitiated
for want of jurisdiction. A decree passed in a time barred suit is not a nullity.

Limitation Bars Remedy but doesn't Extinguish Right

• The law of limitation only bars the remedy by way of the suit i.e., if the period of limitation
expires, the party entitled to file a suit for the enforcement of a right is debarred from doing
so.
❖ However, the original right on which the suit was to base is not barred. Thus,
limitation only bars the judicial remedy, but it does not extinguish the right.
• For example, where the recovery of a debt has become time barred by the lapse of the
prescribed period, the right to the debt is not extinguished.
❖ If the debtor, without being aware of the bar of time, pays the debt, he cannot sue
the creditor to refund the money to him on the grounds that his claims for the
recovery of the debt had become time barred.
• There is one exception to the aforesaid rule contained in Section 27 of the Limitation Act,
1963.
❖ It provides that where a person’s right to institute the suit for the possession of any
property has become barred by limitation his right to the property itself shall be
extinguished.

Extinguishment of Right
▪ General Rule that the law of limitation only bars the remedy but does not bar the right
itself.
▪ Section 27 is an exception to this rule. It talks about adverse possession. Adverse
possession means someone who has possession over another’s land for a long time can
claim a legal title over it.
o In other words, the title of the property will vest with the person who resides in or
is in possession of the land or property for a long period.
▪ If the rightful owner sleeps over his rights, then the rights of the owner will be extinguished,
and the possessor of the property will confer a good title over it.
▪ Section 27 is not limited to physical possession but also includes de jure possession. As
per the wordings of this Section, it applies and is limited only to suits for possession of the
property.

Doctrine of Sufficient Cause

▪ Sufficient cause means there should be adequate reasons or reasonable ground for the court
to believe the applicant was prevented from proceeding with the application in a Court of
Law.
▪ Section 5 allows the extension of prescribed period in certain cases on sufficient cause
being shown for the delay.
o This is known as doctrine of “sufficient cause” for condonation of delay which is
embodied in this section.
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o Condonation of delay means that extension of time given in certain cases provided
there is sufficient cause for such delay.
▪ Section 5 of the Act talks about the extension of the prescribed period in certain cases. It
provides that if the appellant or the applicant satisfies the court that he had sufficient cause
to not prefer the appeal or application within that period, such appeal or application can be
admitted after the prescribed time.
▪ In State of West Bengal v. Administrator (1972), the Supreme Court held that the extension
of time is a matter of concession and can not be claimed by the party as a matter of right.
o It is difficult and undesirable to precisely define the meaning of sufficient cause. It
must be determined by the facts and circumstances of each case. However, a
sufficient cause should fulfill the following essentials:
• It must be a cause which was beyond the control of the party invoking it.
• He must not be guilty of negligence.
• His diligence and care must be shown.
• His intention must be bonafide.

Exception
▪ Section 5 is not applicable to applications made under any of the provisions of Order XXI
of the Code of Civil Procedure, 1908 (states that the decree must be signed by the judge,
and then the decree must be entered in the register of decrees and further states that the
decree should be dated and authenticated by the judge's signature) and to suits.
▪ The Court has no power to admit a time barred suit even if there is a sufficient cause for
the delay. It applies only to appeals or applications as specified therein.

Plea of limitation: Duty of Court

▪ The Court is under an obligation to dismiss a suit if it is filed beyond the time prescribed
by the Limitation Act. The provisions of Section 3 are mandatory, and the Court will not
proceed with the suit if it is barred by time.

Case Laws
Craft Centre v. Koncherry Coir Factories (1990):

It was held by the Kerala High Court that the plaintiff's duty is to convince the Court that his suit
is within time.
If it is out of time and the plaintiff relies on acknowledgments to save the limitations, he must
plead or prove them, if denied.
The Court further held that, provision of Section 3 is absolute and mandatory and if a suit is barred
by the time, the court is under a duty to dismiss the suit even at the appellate stage though the issue
of limitation may not have been raised.

ICICI Bank Ltd v. Trishla Apparels Pvt Ltd (2015):

It was held by Madras High Court that there is no doubt that the court is duty-bound to dismiss the
suit in a case it is barred by time even though no such plea has been taken by the opposite party.
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Limitation Period When the Court is Closed

Section 4 of the Limitation Act deals with the provision and mentions:
▪ When a court is closed on a certain day and the period of limitation expires on that day,
then any suit, appeal or application shall be taken up to the Court on the day on which it
reopens.
o This means that a party is prevented not by his own fault but because of the Court
being closed on that day.
▪ For instance, if a Court reopens on 1st January and the time for filing the appeal expires on
30th December (the day on which the Court remains closed) then the appeal can be
preferred on the 1st of January when the Court reopens.

Conclusion

The Law of Limitation and Condonation of Delay are two effective tools for effective litigation
and quick disposal of cases. The Law of Limitation ensures that the case is filed within the
prescribed period so as to avoid unnecessary delays.
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6 MARKS

1. "Limitation extinguishes remedy but not right." Explain.

Refer 10 marks question 8

2. Objects of law of limitations.

Introduction

The Limitation Act, 1963 came into force with effect from 1st January 1964. It was enacted to
consolidate and amend the law for the limitation of suits and other proceedings and prescribes
different periods of limitation for suits, appeals, and applications.

History of the Act

The law of limitation developed in stages and finally took the shape of the Limitation Act of 1963.
Prior to 1859, there was no law of limitation applicable to the whole of India. It was only in 1859
that a law relating to limitation (Act XIV of 1859) was enacted that was applicable to all the Courts.
The Limitation Act was subsequently repealed in the years 1871, 1877, 1908. The Limitation Act,
1908 was repealed by the Third Law Commission and the Limitation Act of 1963 came into force.
The 1908 Act referred only to foreign contracts whereas the 1963 Act talked about contracts
entered into the territory of Jammu and Kashmir or in a foreign country.

Object of the Act

• The Law of limitation prescribes a time period within which a right can be enforced in a
Court of Law.
• The time period for various suits has been provided under the schedule of the Act.
• The main purpose of this Act is to prevent litigation from being dragged for a long time
and to quickly dispose of cases which leads to effective and easy litigation and disposal of
cases.

According to Halsbury’s Laws of England, the Main Objects of the Law of Limitations are as
follows:

• Long dormant claim has more of cruelty than justice in them.

• A defendant might have lost the evidence to dispute the State claim.
• A person with only good cause of actions should pursue them with.
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There are two major considerations on which the Doctrine of Limitation and Prescription are based
on

- firstly, the rights which are not exercised for a long time are said to be as non-existent and
- secondly, the rights which are related to property and rights which are in general should
not be in a state of constant uncertainty, doubt and suspense.

The main object to limit any legal action is to give effect to the maxim ‘interest reipublicaeut sit
finis litium’, which means that in the interest of the State is required that there should be a limit
to litigation and also to prevent any kind of disturbance or deprivation of what may have been
acquired in equity and justice or by way of long enjoyment or what may have been lost by a party’s
own inaction, negligence or leaches (acquiescence).

The intention in accepting the concept of limitation is that “controversies are restricted to a fixed
period of time, lest they should become immortal while men are mortal.” This statutory restriction
after a certain period of time gives a status to enforce an existing right. Simply, it neither creates
any right in favour of any person nor does it define or create any cause of action against the
particular person but it prescribes about the remedy. These remedy can be exercised only up to a
certain period of time and not subsequently.

The main object of the statute of the Limitation Act, 1963 is more over of a preventive kind and
not to impose a statutory bar after a certain period of time and it gives a quietus to all the suit
matters to enforce an existing right. The major purpose of the statute of the Limitation Act, 1963
is not to destroy or infringe the rights of an aggrieved person but to serve public in a better way
and to save time. This statute is basically based on public policy for fixing a life span for the legal
remedy which may be taken and to seek remedy in time with the purpose of general welfare. The
object of providing a legal remedy is to repair the damage which is caused by reason of legal
injury.

Conclusion

The Law of Limitation and Condonation of Delay are two effective tools for effective litigation
and quick disposal of cases. The Law of Limitation ensures that the case is filed within the
prescribed period so as to avoid unnecessary delays.
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3. Prescription.

Introduction

In the context of law, prescription refers to one type of naturalness – the right to use the property
of another. For this, the use of land for an appropriate statutory period has been open, continuous,
exclusive and under a claim of right. The word limitation only tells the meaning. Its literal word
limit means restrictions or rules or circumstances that are limited. The statute of limitation has
been set as the time limit that is given to the aggrieved person for various suits through which the
parties can approach the court for the redressal of justice.

Sec 25: Acquisition of easements by prescription.

(1) Where the access and use of light or air to and for any building have been peaceably enjoyed
therewith as an easement, and as of right, without interruption and for twenty years, and where any
way or watercourse or the use of any water or any other easement (whether affirmative or negative)
has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as
of right without interruption and for twenty years, the right to such access and use of light or air,
way watercourse, use of water, or other easement shall be absolute and indefeasible.

(2) Each of the said periods of twenty years shall be taken to be a period ending within two years
next before the institution of the suit wherein the claim to which such period relates is contested.

(3) Where the property over which a right is claimed under sub-section (1) belongs to the
Government, that sub-section shall be read as if for the words "twenty years", the word "thirty
years" were substituted

Section 25 provides as to the acquisition of easements by prescription. Where the access and use
of light or air to and for any building have been peaceably enjoyed therewith as an easement, and
as of right without interruption and for twenty years, the right to such access and use of light or air
shall be absolute and indefeasible.

Peaceably

In order to establish a right of easement, it is enough for the plaintiff to prove that he has been
exercising the right peaceably and without any interruption, without express or implied permission
of the owner of the servient tenement and without secrecy or stealth. The word "peaceably" means
that the dominant owner has neither been obliged to resort to physical force himself at any time
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during the period of enjoyment nor had he been prevented by the use of physical force by the
defendant in his enjoyment of such right.

"Openly".

Except in the case of light or air, the enjoyment must be open and manifest and not clandestine.
The reason of the requirement that the user must be open lies in the fact that acquiescence lies at
the root of all prescription, and where the enjoyment is not open, it cannot be said that the owner
of the servient tenement actually or constructively acquiesced in or consented to the easement.

Without interruption

An "interruption" within the meaning of the Act is an actual discontinuance or cessation of

enjoyment of user by reason of an obstruction submitted to or acquiesced in for a year, not by the
mere voluntary act of the claimant of the right but in consequence of an obstructive act done by a
person other than the claimant. But if a cessation of user takes place due to an accident or a
voluntary act or omission of the claimant himself, then it does not amount to an interruption.

As an easement

The claimant must have enjoyed the right as an easement, where there is unity of possession or
ownership in the same person of both the tenements, there cannot be any enjoyment as an easement
during the period of unity.

As of right.

A user "as of right" simply means a user in the assertion of right.

In order to make a right absolute and indefeasible, it is necessary to establish that the access and
use of light had been enjoyed also as of right.

The words "as of right" mean "without permission or favour." The user as of right, therefore,
connotes a user in the assertion of right as against all persons and would not mean a right acquired
through a grant of permission from the servient owner

Conclusion
Prescription and limit are unquestionably used in colloquial terms. However, in the legal world,
the difference between the two concepts is indeed meaningful. Prescription: The statutory concept
according to which the passage of time consolidates factual conditions.
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4. Acknowledgement. (2)

Refer 10 marks question 7

5. The General rules for Calculation of period of limitation for filing suit

Refer 10 marks question 4

6. 'X' takes the debt from 'Y' under oral terms. X gives a written
acknowledgement, after the expiry of two years. Then he pleads sorry for
not paying the debt yet. Determine the validity of acknowledgement.

Sec 18

7. Kiran seeks condonation of delay for not preferring an appeal within the
period of limitation because of engaging in his marriage. Is it
condonable?

Sec 5
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8. Rakesh taken debt from Santhosh under oral terms. Rakesh gives a
written acknowledgement, after the expiry of two years. Then he pleads
sorry for not paying the debt yet. Determine the validity of
acknowledgement.

Sec 18

9. The court is closed on the last date of limitation period. 'A' seeks
extension of limitation period on that ground. Will he succeed?
Sec 4

10.Right to sue arises to 'X' during his minority. 'X' dies one day after
attaining majority. He is succeeded by his son 'Y' who is a minor.
Determine the effect on the period of limitation.

Sec 6

11.A's wife refused to return to her husband and allow him the exercise of
conjugal rights. What is the period of limitation for 'A' ? Decide