UNIT 1

 HISTORY AND ORIGIN OF THE CPC ALONG WITH ITS AMENDMENTS

 EXTENT AND APPLICATION OF THE CPC, 1908
 KINDS OF JURISDICTION ------ 2 LECTURE
A. CIVIL AND CRIMINAL
B. TERRITORIAL OR LOCAL
C. PECUNIRAY
D. JURISDICTION AS TO SUBJECT
E. ORIGINAL AND APPELLATE
F. EXCLUSIVE AND CONCURRENT JURISDICTION
G. GENERAL AND SPECIAL
H. LEGAL AND EQUITABLE
I. MUNICIPAL AND FOREIGN
J. EXPONDING AND EXPANDING
 CAUSE OF ACTION
 DEFINITION
 MEANING
 INGREDIENTS
 SECTION 9: SUITS OF CIVIL NATURE AND SUITS NOT OF CIVIL NATURE
 PROVISIONS RELATION TO PLACE OF SUING (SECTION 15 TO 20) ---- 2 LECTURE
 OBJECTIONS TO JURISDICTIONS (SECTION 21)
 DOCTRINE OF RES SUB JUDICE (SECTION 10) AND RES JUDICATA (SECTION 11)
(v.imp)

1.History of the Code along with its amendments

Historical Background

Till 1859, in India, there was no uniform codified law for the procedures to be followed in Civil
Courts. In those old days, under the British rule, there were Crown Courts in Presidency towns and
Provincial Courts in Mofussil.

⮚ These Courts in Mofussil areas and Presidency towns were governed by different systems of
Civil procedure through various rules, regulations and special acts and those were changed
on time to time basis on the basis of circumstances and needs.
 ⮚ 1859 :- For the first time in 1859, a uniform civil procedure Code was introduced by passing
the Civil Procedure Code (Act VII of 1859). But this code could not serve the purpose as
this code was not made applicable to the Supreme Courts (Crown Courts under the Royal
Charter) and the Sadar Diwani Adalats (Principal Courts under the Judicial Plan by the
Governor General).

⮚ In 1861, the Indian High Courts Act was passed and the Supreme Courts and Sadar Diwani
Adalats were abolished. Then the High Courts were established by replacing the Supreme
Courts at Madras, Bombay and Calcutta. Then the Civil Procedure Code 1859 made
applicable to these newly established High Courts.

⮚ 1877 & 1882 - The Code of 1859 was amended regularly from time to time but still there
were many defects in it, and therefore, a new Code was enacted in 1877. Again, another Code
was enacted in 1882, which was also amended from time to time.

Civil Procedure Code 1908 and its amendments :-

In 1908, the present Code of Civil Procedure was enacted. It was amended by two important
Amendment Acts of 1951 and 1956. On the whole, this Code worked satisfactorily, though there were
some defects in it. The Law Commission in its various reports made many recommendations, and
after carefully considering them, the Government decided to bring forward the Bill for the
amendment of the Code of Civil Procedure, 1908, keeping in view, inter alia, the following
considerations:

1. a litigant should get a fair trial in accordance with the accepted principles of natural justice;

2. every effort should be made to expedite the disposal of civil suits and proceedings, so that
justice may not be delayed;

3. the procedure should not be complicated, and should, to the utmost extent possible, ensure a
fair deal to the poorer sections of the community who do not have the means to engage a
pleader to defend their cases.

Some of the important changes made by the Amendment Act, 1976 are as under:

i. The doctrine of res judicata is being made more effective.

ii. Power to transfer proceedings from one High Court to another is given to the
Supreme Court.

iii. Freedom from attachment of a portion of salary to all salaried employees, is granted.
 iv. Provision of giving notice under Section 80 before the institution of a suit against the
Government or a public officer is made less stringent.

v. Restrictions are imposed on the right of appeal and revision.

vi. Provisions are being made to ensure that written statements and documents were filed
without delay.

vii. New Order 32-A has been inserted to provide a special procedure in litigation
concerning the affairs of a family.

viii. The practice to pass preliminary and final decree in certain suits is abolished.

ix. Scope of Summary Trials is substantially widened.

x. Important changes have been made to provide relief to poorer sections of the
community.

The amendments made in 1976 were not found sufficient. With a view to dispose of civil cases
expeditiously, Justice Malimath Committee was appointed by the Government. In pursuance of
recommendations of the Committee, the Code was amended by the Amendment Acts of 19996 and
2002

Important amendments made by Acts of 1999 and 2002 may be summarised thus:

1. In several matters, such as issuing of summons, filing of written statement, amendment of

pleadings, production of documents, examination of witnesses, pronouncement of judgments,
preparation of decree, etc., a time-limit is prescribed;

2. A new provision for settlement of disputes outside the court has been introduced;

3. Number of adjournments have been restricted;

4. A provision for recording of evidence by the Court Commissioner has been made;

5. Endless arguments are sought to be shortened by (a) empowering the court to fix a time-limit
for oral arguments; and (b) by permit- ting written arguments to be placed on record by the
parties;

6. A provision is made for filing of appeal in the court which passed the decree;

7. Instituting of appeal against the judgment is allowed where the decree is not drawn up;

8. Scope of First Appeal, Second Appeal, Letters Patent Appeal and Revision has been curtailed.
Salem Advocate Bar Associations v. Union of India; All amendments made in the Code in 1999 as
also in 2002 are intra vires and constitutional.

Meaning and Object

The Law relating to the practices and procedure to be followed in the Civil Courts is regulated by the
Code of Civil Procedure, 1908. The word CODE means ‘a systematic collection of statutes, body of
laws so arranged as to avoid inconsistency and overlapping.

Preamble:-

An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil Judicature.

WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of the Courts
of Civil Judicature

⮚ The main object of this civil procedure code is to consolidate and amend the laws relating to
the procedure and practices followed in the Civil Courts in India.

⮚ The Civil Procedure Code regulates every action in civil courts and the parties before it
till the execution of the degree and order.

2.Extent and Application

The Civil Procedure Code was passed in 1908 and came into force from 1st January 1909. The Code
is applicable to the whole country except –

1. The State of Jammu and Kashmir - omitted by Act 34 of 2019,

2. The state of Nagaland and the tribal areas

There is also a provision that the concerned state governments may make the provisions of this code
applicable to the whole or part of the State of Nagaland or such tribal areas by notification in the
official gazette.

This code is applicable in the scheduled areas of the erstwhile State of Madras (Lakshadweep), the
East Godavari, West Godavari and Visakhapatnam agencies (Now in Andhra Pradesh State).

By the Amendment Act of 1976, the application of the provisions of the Code have been extended to
Schedule Areas also.
Civil Procedure Code: Scope

The Code is exhaustive on the matters directly dealt by it but it is comprehensive in other issues. The
framers of the code could not foresee the possible circumstances which may arise in the future
litigations and could not provide the procedure for such situations.

● Hence the framers of the code (legislature) provided inherent powers to the court to meet such
circumstances (where the code could not provide a procedure) according to the principles
of natural justice, equity and good conscience.

Section 4. Savings-

(1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to
limit or otherwise affect any special or local law now in force or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by or under any other law for the time in
force.

(2) In particular and without prejudice to the generality of the proposition contained in sub-section
(1) nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder
or landlord may have under any law for the time being in force for the recovery of rent of agricultural
land from the produce of such land.

As this Code is a general procedural law, it does not contradict with the local or special law in
force. In the event of any conflict between the civil procedure code and the special law, the
special law will prevail over the civil procedure code. In case the local or general law is silent on
any matter, then the provisions of the civil procedure code will prevail.

3.Section, Order, Rules under CPC

Civil Procedure Code: Scheme

The Code has two parts and they are –

● the body of the Code containing IX Parts - 158 sections; and

● the (First) Schedule, containing 51 Orders, Rules and Forms.

● The Second Schedule :- Arbitration – Repealed

● The Third Schedule :- Execution of Decrees by Collectors – Repealed

● The Fourth Schedule :- Enactments amended – Repealed.

● The Fifth Schedule:- Enactments repealed – Repealed

 ⮚ The sections deal with provisions of a substantive nature, laying down the general principles
of jurisdiction,

⮚ The Orders in the (First) Schedule relates to the procedure and the method, manner and
mode in which the jurisdiction may be exercised."

⮚ The Provisions of the Body of the code can be amended only by the legislature and the
Courts can not alter or amend the body of the code.

⮚ The various High Courts are empowered to alter or add any rules in
the schedules under Section 122 to 127, 129, 130 and 131 and such new rules should not be
inconsistent with the provisions of the body of the code.

⮚ The sections and the rules, therefore, must be read together and harmoniously construed, but
if the rules are inconsistent with the sections, the latter will prevail.

Code Definition :-

Section 2 (1) :- "Code" includes rules;

Section 2(18):- "rules" means rules and forms contained in the First Schedule or made under section
122 or section 125

KINDS OF JURISDICTION

AS PER CPC IT IS 3 TYPES AND THERE ARE OTHER VARIOUS GENERAL

JURISDICTION.

JURISDICTION: MEANING

The term “Jurisdiction” has not been defined in CPC. This word is derived from two Latin terms
“juris” and “dicto” which means “I speak by the law” .

Simply stated, “jurisdiction” means the power or authority of the court of law to hear and determine a
cause or matter.

Thus, jurisdiction of a court means the extent of the authority of a court to administer justice
prescribed with reference to the subject- matter , pecuniary value and local limits”

In Official Trustee v. Sachindra Nath, after referring to various decisions, the SC observed:

“Before a court can be held to have jurisdiction to decide a particular matter it must not only have
jurisdiction to try the suit brought but must also have the authority to pass the orders sought for. It is
not sufficient that it has some jurisdiction in relation to the subject-matter of the suit. Its jurisdiction
must include power to hear and decide the question at issue, the authority to hear and decide the
particular controversy that has arisen between the parties”

JURISDICTION AND CONSENT

It is well settled that consent cannot confer nor take away jurisdiction of a court.

In leading case of A.R.Antulay v. R.S NAYAK, “this court, by its directions, could not confer
jurisdiction on the high court of the Bombay to try any case for which it did not possess. the power to
create or enlarge jurisdiction is legislative in character, so also the power to confer a right of appeal or
to take away right of appeal. Parliament alone can do it by law and no court, whether superior or
inferior or both combined, can enlarge the jurisdiction of a court or divest a person of his rights of
revision and appeal”

In case of Kiran Singh v. Chaman Paswan, it was held that it is a fundamental principle that a
decree passed by a court without a jurisdiction is a nullity, that its invalidity could be set up whenever
and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in
collateral proceedings.

A defect at jurisdiction…strikes at the very authority of the court to pass any decree, and such a
decree cannot be cured even by the consent of the parties.

Conversely, where a court has jurisdiction to decide a dispute, the same cannot be taken by the
consent of the parties. An agreement to oust absolutely the jurisdiction of the court would be unlawful
and void, being against the public policy(ex dolo malo non oritur action).

Question of jurisdiction is a pure question of law.

BASIS TO DETERMINE JURISDICTION

It is well-settled that for deciding the jurisdiction of a civil court, the aver- ments made in the plaint
are material. To put it differently, the jurisdiction of a court should normally be decided on the basis
of the case put forward by the plaintiff in his plaint and not by the defendant in his written statement,
nor on the basis of ultimate findings arrived at by the court.

Thus, in Abdulla Bin Ali v. Galappa", the plaintiff filed a suit in the civil court for declaration of title
and for possession and mesne profits treating the defendants as trespassers. The defendants contended
that the civil court had no jurisdiction since he was a tenant.
Negativing the contention of the defendants, the Supreme Court observed, "There is no denying the
fact that the allegations made in plaint decide the forum. The jurisdiction does not depend upon the
defence taken by the defend- ants in the written statement. On a reading of the plaint as a whole it is
evident that the plaintiffs-appellants had filed the suit giving rise to the present appeal treating the
defendants as trespassers as they denied the title of the plain. tiffs-appellants. Now a suit against the
trespasser would lie only in the civil court and not in the Revenue Court.... We are, therefore, of the
considered opinion that on the allegations made in the plaint the suit was cognizable by the civil court,

The plaintiff, however, cannot by drafting his plaint cleverly circumvent the provisions of law in order
to invest jurisdiction in civil court which it does not possess. It is also well established that in deciding
the question of jurisdiction, what is important is the substance of the matter and not the form.

COURTS AND TRIBUNALS

Civil Courts:

 A civil court has the inherent power to decide whether it has the jurisdiction to entertain,
deal with and decide the matter which has came before it.

 Even if no one challenges whether the court has the authority to hear the case, it is consider
as court’s suo motu duty to examine the bar of jurisdiction(Sasan Power Ltd v. North
American Coal corporation)

Tribunals and Other Authorities:

 Tribunals are special bodies created by laws to deal with specific issues (like tax disputes or
employment disputes).

 Sometimes, Parliament gives these tribunals the power to make decisions on certain
preliminary facts that decide whether the tribunal has jurisdiction.

o Example: A tribunal dealing with employee wages might have the power to decide
whether someone is an employee before proceeding with the case. Once they make
that decision, it is final and cannot be challenged in court using certiorari

 However, in cases where the law does not give a tribunal the power to make decisions about
its own jurisdiction:

o If a tribunal makes a wrong decision about a key fact that would give it jurisdiction
(like misclassifying someone as an employee), the tribunal cannot grant itself power
that it doesn’t have.
 o If it does, the decision can be challenged in court through certiorari, and the court
can review and potentially overturn the tribunal's decision.

KINDS OF JURISDICTION

Jurisdiction can be classified into three categories, viz.,(UNDER CPC)

1) Jurisdiction over subject matter – section 9

2) Territorial jurisdiction – section 15 – 20
3) Pecuniary jurisdiction – section 6

Pecuniary jurisdiction – section 6 :

 The expression “subject matter” means not the property involved in the suit but the relief
claimed and it is its value that determines the jurisdiction(Chandi Charan Das v. Suslia Bala
Dasi)
 Pecuniary limits of jurisdiction- (section 15)(courts of lowest grade competent to try a suit)
 The suits valuation act, 7 of 1887 prescribes the mode of valuing certain suits for the purposes
of determining jurisdiction and the present section must be read with the subject to its
provisions.
 Under sec. 8 of that Act the valuation for Court fees and the valuation for jurisdiction in
certain suits is the same. Under sec. 7 clause (iv) (I) of the Court Fees Act, the valuation for
purposes of Court fees in a suit for accounts lies in the discretion of the plaintiff. Therefore, in
a suit for accounts the plaintiff's valuation in the plaint fixes the jurisdiction of the Court
 Section 6 refers to the Court's power to entertain a suit. It is the plaintiff's valuation in his
plaint which prima facie determines the jurisdiction of the Court and not the amount which
may be found or decreed by the Court. If the plaintiff's valuation in his plaint in a suit for
accounts is within the pecuniary limits of the Court's jurisdiction, the Court may pass a decree
for the sum in excess of the pecuniary limits of its jurisdiction.
 Illustration (ishwarappa v. dhanji) (Bombay case)

A sues B in the Court of second-class subordinate Judge for an account and values his suit for
Court fee at Rs. 130. Under sec. 8 of the Suits Valuation Act the value of the subjects- matter of
the suit is Rs. 130. The parties arrive at a compromise whereby the first defendant is to pay 6,000
and the second defendant Rs. 5,000 to the plaintiff. The Court may pass a decree in the terms of
 the compromise, although it has jurisdiction limited to suits of which the value Of subject- matter
does not exceed Rs. 5000.

“Section 24: Classes Of Subordinate Judges | The Bombay Civil Courts Act, 1869

Bare Act

The Subordinate Judges shall be of two classes.

Jurisdiction of Subordinate Judge of first class

The jurisdiction of a Subordinate Judge of the first class extends to all original suits and
proceedings of a civil nature.

Jurisdiction of Subordinate Judges of second class

The jurisdiction of a Subordinate Judge of the second class extends to all original suits and
proceedings of a civil nature wherein the subject-matter does not exceed in amount or value five
thousand rupees.”

 This section has no application to proceedings other than suits.

OTHER KINDS OF JURISDICTION (IN GENERAL)

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.

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. Whereas
appellate jurisdiction 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.

Example, Munsiffs courts, courts of civil judges, small cause courts are having original jurisdiction
only.

Whereas, District courts, High courts have original as well as appellate jurisdiction.

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 judgement or give a decision in the case or
class of cases.
Debt Recovery Tribunals (DRTs), which have the sole power to adjudicate cases related to the
recovery of debts owed to banks and financial institutions under the Recovery of Debts Due to Banks
and Financial Institutions Act, 1993. No other court can hear cases related to the recovery of such
debts.

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.

Example, section 20 of CPC – confers concurrent jurisdiction.

GENERAL AND SPECIAL JURISDICTION

General jurisdiction extends to all cases comprised within a class or classes of cases. Example, A
High Court in India has general jurisdiction over both civil and criminal matters within its territorial
boundaries.

Special or limited jurisdiction, is a jurisdiction which is confined to special, particular or limited

causes. Example, ribunals such as the National Company Law Tribunal (NCLT) in India have
special jurisdiction. The NCLT is specifically authorized to handle cases related to company law
matters, such as corporate insolvency, mergers and acquisitions, and the oppression and
mismanagement of companies. It cannot hear cases outside this specific scope, such as criminal cases
or personal injury claims, which are beyond its limited jurisdiction.

LEGAL AND EQUITABLE JURISDICTION

Equitable Jurisdiction refers to the power of the courts to take certain actions and pass certain orders
in order to bring out a just and fair outcome. These decisions are usually outside the purview of the
law, in the sense that the remedy provided by the courts may not necessarily be guaranteed by statute.

In England, equitable jurisdiction is exercised by Chancery Courts, which provide remedies not
available under common law, operating on principles of fairness and justice, guided by Ubi Jus Ibi
Remedium (where there is a right, there is a remedy). Conversely, Indian courts do not have separate
equity courts; the Supreme Court and High Courts can exercise both legal and equitable jurisdiction
under Articles 32 and 226 of the Constitution for enforcing Fundamental Rights. Section 151 of the
Code of Civil Procedure (CPC) grants civil courts discretionary power to ensure justice but must
adhere to statutory provisions, meaning equity yields to law. The Indian judiciary has clarified that
equitable jurisdiction is subordinate to legal statutes, as emphasized in K.K. Velusamy v. N.
Palaanisamy and Shiv Kumar Sharma v. Santosh Kumar. Furthermore, tribunals like the NCLT can
exercise equitable jurisdiction only if explicitly allowed by their governing statutes, as shown in K
Sashidhar v. Indian Overseas Bank.
Legal jurisdiction refers to the authority of a court to apply and enforce statutory laws and legal
principles to resolve disputes. In cases falling under legal jurisdiction, courts primarily focus on the
application of codified laws, statutes, and precedents to determine the legal rights and obligations of
the parties involved. Example, common law courts in England only have legal jurisdiction and not
equitable jurisdiction.

“in India, we don’t specially have separate legal and equity courts. Courts in india are courts of both,
law and equity”

MUNICIPAL JURISDICTION AND FOREIGN JURISDICTION

Definition: Municipal jurisdiction refers to the authority of a court or legal system to hear and decide
cases within its own country or state. This type of jurisdiction is confined to domestic laws and
applies to disputes arising under those laws.

Example: A civil court in India has municipal jurisdiction to hear cases related to breach of contract,
property disputes, or family law issues such as divorce.

Definition: Foreign jurisdiction refers to the authority of a court or legal system to hear cases that
involve foreign elements, such as parties from different countries or legal issues arising under foreign
laws. This can include cases involving international treaties, cross-border transactions, or disputes
where the laws of another country are applicable.

Example: If an Indian citizen enters into a business contract with a company based in the United
States and a dispute arises, the parties may agree to resolve their dispute in a U.S. court under U.S.
law.

JURISDICTION OVER SUBJECT MATTER – SECTION 9

ACCORDING TO SECTION 9, A CIVIL COURT HAS JURISDICTION TO TRY A SUIT IF

TWO CONDITIONS ARE FULFILLED:

A. THE SUIT MUST BE OF CIVIL NATURE; AND

B. THE COGNIZANCE OF SUCH A SUIT SHOULD NOT HAVE BEEN EXPRESSELY

OR IMPLIEDLY BARRED
 (A) CLASSES OF SUIT

Suits fall under two categories: those which are of (A) civil nature and (B) those which are not. Suits
falling under the first category only can be entertained by civil courts.

 SUITS OF A CIVIL NATURE:

A suit is of a civil nature if the principal question therein relates to a civil and legal right. Explanation
I to the section specifies that if the principal or only question in the suit is a caste question or a
question relating to religious rites of ceremonies, the suit is not of a civil nature for it deals not with
the rights of the citizen but matters that are purely social.

However, when, (1) a caste question or a question relating to religious rites or ceremonies is not the
principal question in the suit, but it merely a subsidiary question, and

(2) the principal question is of a civil nature, e.g. a question as to any right to property or to an office
or to any other civil right, and

(3) the principal question, which is of a civil nature, cannot be determined without deciding the caste
question or the question relating to religious rites or ceremonies, the court has the power to decide the
caste question or the question relating to religious rites or ceremonies, to enable it to decide the
principal question (Lalji v. Walji). It is upon this principle that Explanation I to the section is based.

“OFFICE”

The right to office is a right of civil nature. Therefore, suits in which the principal question relates to
the right to an office are suits of a civil nature; and they are not less so because the right claimed may
depend on the decision of caste question or questions as to religious rites or ceremonies or even
religious tenets. The essential condition for the existence of the office is that the holder of the same
shall be under a legal obligation to discharge the duties attached to the office.

RELGIOUS MATTERS WHICH ARE OF CIVIL NATURE

RELIGIOUS QUESTIONS:

Explanation 2 to Section 9, inserted in 1976, is very relevant on the question og religious offices and
earlier points on the topic should now be read as subject to the newly inserted explanation.

SUITS FOR RELIGIOUS OFFICE

The first explanation to the section states that a suit in which the right to an office is contested is a suit
of a civil nature. Now, an office may be either secular or religious in its character. Religious office
may further be divided into two classes namely:
 (1) Those to which fees are appurtenant as of right; such as the office of the Kazi of Bombay, or
of the Joshi of a village; and
(2) Those to which no fees are attached, but which entitle the holder thereof to receive such
gratuities may be paid to him, such as the office of a pujari or of an officiating priest in a
temple.

Fees are to be distinguished from gratuities. A fee is a sum which the holder of an office is entitled to
demand as payment for the execution of the functions attached to the office, whereas gratuities are
entirely voluntary in character. When fees are attached to an office, the holder of the office to the
stipulated or customary fees on performance of the services. Thus, a Kazi or Joshi is entitled to the
marriage fee on performing marriage ceremony.

As regards religious office of the first class, that is, offices to which fees are attached there is no doubt
that a suit will lie against an intruder, for a declaration, that the office is vested in the plaintiff. Such
suit is a suit of a civil nature.

The question regarding religious office of the second class is whether a suit will for an office to which
no fees are attached. Different views have been held on this point by different courts. This conflict of
opinion between different HC’s has been done away with by the new explanation II which declares it
is immaterial or not any fees are attached to a religious office or whether or not such an office is
attached to a particular place or spot.

More examples;

i. Religious right – A religious right is nevertheless civil in nature. disputes regarding religious
offices may involve religious matters, but with civil consequences. any infringement of a
right, claimed as a member of any religious order, is a civil wrong. this is letter and spirit of
Section 9 , Explanation I.
ii. Interference with temple property.
iii. Interference with right of worship
iv. Right of burial
v. Taking out of religious processions

MATTERS CONCERNING CASTE WHICH ARE OF CIVIL NATURE:

i. Expulsion from caste: Expulsion from caste and exclusion from social privileges are two
different concepts and involve different considerations. The former deprives the aggrieved
person of a legal right which forms part of his status and the latter is social privilege, that is
the matters of caste autonomy which the caste can deny or enforce. Civil court have
jurisdiction to decide on the validity of ex-communication of a person from a religious order.
Ex-communication would deprive a person of the right to worship.
 ii. Suits relating to caste property and suits for inspection of accounts of caste property : as these
questions in issue is not a matter relating to the internal administration and affairs of a caste.

 SUITS NOT OF CIVIL NATURE

i. Suits in which the principal question is a caste question are not suits of civil nature

A caste is any well-defined community (be it Hindu or Mahomedan), governed for certain internal
purposes by its own rules and regulations. A caste question is one that relates to matters affecting the
internal autonomy of the caste and its social relations. To determine whether a question is a caste
question or not, the test is whether its cognisance constitutes interference with the caste’s autonomy.
And as such, it is a question which the caste as a self-governing body is entitled to decide for itself
and not the court.

ii. suits in which principal question relates to religious rites or ceremonies are not suit of a civil
nature:

Religious rites and ceremonies refer to specific practices, rituals, and observances that are dictated
by religious beliefs and traditions. These are matters of faith and religious doctrine, which civil
courts are typically not authorized to adjudicate because they fall outside the realm of civil law.

Example; A suit will not lie to establish a right to parade bullocks on certain days or to compel pujaris
to adorn an idol in certain seasons or to install it in a particular temple instead of another.

iii. Suits for Vindication of mere dignity attached to an office are not suits of civil nature

Civil courts should discourage, as much as possible, claim of so unsubstantial and objectionable a
nature, and they ought not to be involved in the determination of trivial questions of dignity and
privilege although connected with an office.

iv. Suits for recovery of fees attached to an office are, and suits for recovery of gratuities are not
of a civil nature :

The reason is that where voluntary offerings are made, they must be taken as intended for the person
who was actually performing the ceremony, whether rightfully or not. Further, it is quite possible that
no gratuities at all would have been given if the rightful owner officiated at the ceremony instead of
usurper.

(B) COGNIZANCE NOT BARRED

(i) Suits expressly barred:

It means – which is barred by an enactment for the time being in force.

Thus, matters falling within the exclusive jurisdiction of:

1. CrPC
2. Special Tribunals under the relevant statutes, e.g. by Industrial Tribunal, Election Tribunal,
Revenue Tribunal, Rent tribunal, Cooperative Tribunal, Income Tax Tribunal, Moto
Accidents Claims Tribunal, etc.,
3. By domestic tribunals, e.g., Bar council, medical council, etc , are expressly barred from the
cognizance of a civil court.

State of Vindhya Pradesh v. Moradhwaj : It is open to competent legislation to bar jurisdiction of

civil courts with respect to a particular class of suits of a civil nature, provided that, in doing so, it
keeps itself within the field of legislature conferred on it and does not contravene any provision of the
constitution.

Under Section 34 of the SARFAESI ACT, specifically provides that no civil court shall have
jurisdiction to entertain any suit or proceedings in respect of any matter which a Debts Recovery
Tribunal or the Appellant Tribunal is empowered to determine under the act.

(ii) Suits Impliedly Barred

Besides suits of which the cognizance is expressly barred, there are suits which are barred by general
principles of law such as :

(a) Suits relating to acts of the state

(b) Suits relating to public policy
(c) Where the statute provide a specific remedy, it deprives the person of a remedy of any other
form.

Punjab SEB V. Ashwani Kumar : held that where a specific remedy is given by a statute, it thereby
deprives the person who insists upon a remedy of any other form than that given by the statute.

Premier Automobiles Ltd v. Kamlekar Shantaram Wadke

Where an act creates an obligation and enforces its performance in a specified manner, that
performance cannot be enforced in any other manner.

EXCLUSION OF JURISDICTION : LIMITATIONS

Abdul Waheed Khan v. Bhawani : Every presumption should be made in favour of the jurisdiction
of a civil court and the provision of exclusion of jurisdiction of a court must be strictly constructed.
If there is any doubt about the ousting of jurisdiction of a civil court, the court will lean to an
interpretation which would maintain the jurisdiction.

Therefore, Jurisdiction of a civil court is all-embracing and the exclusion of the same is not to be
readily inferred and such exclusion must be clear.

The burden to prove the exclusion of jurisdiction is on the party who so contends.

M/S KAMALA MILLS LTD V. STATE OF BOMBAY

The question of exclusion has to be determined in the light of the words used in the statute, the
scheme of its relevant provisions, their object and purpose.

In Dhulabhai v. State of Madhya Pradesh (1968), the Supreme Court of India laid down crucial
principles related to the exclusion of civil courts' jurisdiction when a special statute or tribunal is
involved. This decision helps determine when a civil court can exercise jurisdiction and when it is
ousted due to the existence of a statutory mechanism. These principles are vital in understanding the
interaction between civil courts and tribunals, particularly in tax, revenue, and other statutory
schemes. Here's a breakdown of the principles:

1. Finality to Orders of Special Tribunals:

Civil court jurisdiction is excluded when a statute gives finality to the orders of special
tribunals, but only if there is an adequate remedy within the statute to deal with the matters a
civil court would handle. Importantly, this exclusion does not apply if the statutory provisions
are not complied with or if the tribunal fails to follow the fundamental principles of judicial
procedure.

2. Express Bar on Jurisdiction:

If there is an explicit bar on civil court jurisdiction in a statute, the court should examine the
scheme of the Act to assess the adequacy and sufficiency of the remedies it provides. While
this examination is relevant, it is not conclusive in determining whether civil courts retain
jurisdiction.

3. No Express Exclusion of Jurisdiction:

When there is no express exclusion of civil court jurisdiction, courts must examine the Act’s
remedies and scheme to infer the legislative intent. If the statute creates a special right or
liability and mandates that these be determined by a special tribunal, it may imply exclusion
of civil courts, especially if the statute also provides remedies akin to those available in civil
courts.

4. Challenge to Ultra Vires Acts:

Tribunals created under an Act cannot decide on the constitutionality (ultra vires) of the Act
 itself. Such questions can be raised only in civil courts. Even the High Court, in revision or
reference, cannot deal with the ultra vires aspect when it comes from a tribunal's decision.

5. Suits for Unconstitutional Provisions:

If a provision has already been declared unconstitutional or its constitutionality is in question,
civil courts can entertain suits challenging its application. In such cases, certiorari may
include an order for refund, but it does not replace the right to file a suit.

6. Suits for Refund of Unlawful Taxes:

If a statute does not provide any mechanism for refunding taxes collected illegally or beyond
constitutional limits, a suit can be filed in a civil court to claim such a refund.

7. Correctness of Assessments:
Issues regarding the correctness of an assessment (separate from its constitutionality) should
be dealt with by the statutory authorities. If the statute makes the authorities' decisions final or
explicitly bars civil suits on such matters, civil courts' jurisdiction is ousted, unless the statute
fails to follow a fundamental procedural rule.

8. Inference of Exclusion:
Civil court jurisdiction should not be excluded unless the specific conditions set out above are
met. The exclusion must be clear and based on the statute's provisions, either expressly or
impliedly.

STATE OF AP V. MAJETIC LAXMIKANTH RAO: The SC laid down two tests about the
exclusion of jurisdiction of the civil court:

1. There should be a legislative intent to exclude the jurisdiction of the civil court. It could be
either directly or indirectly, have to mention adequate reasons for justification for the
exclusion of the suit.
2. There should be an extension of an alternate remedy available for the claimant if not the
jurisdiction of the civil court cannot be excluded.

PLACE OF SUING (SECTION 15 TO 20)

(venue of trial , not competence of court)

(the “place” in its context means place in India, the courts referred to therein means courts in india
and the IMP referred to also means IMP in india)
(these sections deals with matters of domestic concerns and prescribed rules for the assumptions of
territorial jurisdiction by Indian courts in matters within their cognisance and do not govern claims
against persons of things totally outside their jurisdiction)

Object of this section:

The object underlying this provision is twofold (nidhi lal v.mazhar husain)

(ii) To see that the courts of higher grades shall not be overburdened with suits; and
(iii) To afford convenience to the parties and witnesses who may be examined in such
suits.

Scope :

This section is a rule of procedure, not of jurisdiction, it does not oust the jurisdiction of the courts of
higher grades which they possess under the acts constituting them.

Jurisdiction. –

The word “competent” used in this section has reference to the jurisdiction of a court. Jurisdiction
means the extent of the authority of a court to administer justice not only with reference to the
subject-matter of the suit but also to the local and pecuniary limits of jurisdiction.

Thus, a presidency small cause courts has no jurisdiction to try suits in which amount or value of the
subject-matter exceeds the prescribed monetary value; this is said to be the jurisdiction of a court as
regards its pecuniary limits. Nor can it try suits for specific performance of contracts or for an
injunction or for a dissolution of partnership; this is said to be the jurisdiction of a court as regards the
subject- matters of a suit. Nor it can try a suit on a cause of action that has arisen beyond the local
limits of the original civil jurisdiction of the HC; this is said to be the local limits of its jurisdiction.

Court of lowest grade competent to try a suit:

This section directs the suitor to institute a suit in the court of a lowest grade.

Example,

In each of the three Presidency-towns (Calcutta, madras, Bombay), there is high court and a small
cause court. HC are empowered in the exercise of their ordinary civil jurisdiction to try suits of any
value except suits falling within the jurisdiction of presidency small cause courts of which the value
does not exceed Rs.100.

The pecuniary jurisdiction of presidency small cause courts is confined to suits of which the value
does not exceed Rs.2000. thus, both a HC and a Presidency small cause court are competent to try a
suit, say for Rs.500, for damages for breach of contract, but of these two court it is the small cause
court which is the “court of the lowest grade competent to try a suit”. The suit, therefore, “shall” be
instituted in the small cause court as required by the present section. This does not mean that the HC
has no jurisdiction to entertain the suit. It has jurisdiction to try the suit, but in order that the HC may
not be overcrowded with suits, the legislature has established small cause court, and the present
section requires that suits which a PSCC is competent to try shall be brought in that court. There are,
however, certain suits which a small cause court is not competent to try, such as suits for the recovery
or partition of IMP or for foreclosure or redemption of a mortgage of IMP or suits for injunctions or
for specific performance. These suits must be brought must be brought in the HC, though the value of
the suit may be under Rs.100. there are in Calcutta, madras and Bombay, courts of original
jurisdiction established under special statutes called city civil courts which power to take cognisance
of suits up to pecuniary limit, not being matters relating to testamentary, intestate, or matrimonial
jurisdiction.

It has been held that where there is a conflict between the original jurisdiction of the HC under letters
patent and that of the city civil court, section 15 has no application and that proceedings could be
taken in the HC even though they could also be instituted in the city civil court.

The Hindu marriage act, 1955, confers on the district court exclusive jurisdiction to try petitions
presented under that act and its operations is not controlled by section 15. It has accordingly been held
that a petition for declaration of nullity of marriage should be filed in the city civil court and not in the
HC in its original jurisdiction side even though the value of the relief claimed in the petition exceeds
the pecuniary limits of its jurisdiction.

Where a suit which ought to have been instituted in a court of lower grade is instituted in a
court of higher grade – (Madras city civil court – district munsifs court, subordinate judges courts
and district courts)

If a suit which under this section ought to have been instituted in a munsif’s court is brought in the
court of a subordinate judge and the subordinate judge, instead of returning the plaint under 0.7 R.10,
tries it and passes decree against the defendant, notwithstanding an objection taken by the defendant,
the decree is not a nullity as the subordinated judge has jurisdiction to try the suit. It is a case of
irregularity, not affecting the jurisdiction of the court within the meaning of section 99(Nidhi Lal v.
Mazhar Husain)

Where a suit which ought to have been instituted in a court of higher grade is instituted in a
court of lower grade – in such a case the court of lower grade ought to return that plaint to the
plaintiff to be presented to the court of higher grade [ O.7 R. 10]. If this is not done, and the suit is
heard by the court of lower grade, the decree is one passed without jurisdiction ( and therefore, a
nullity) This is a case of want jurisdiction as distinguished from a mere irregularity within the
meaning of section 99.
Principles regarding pecuniary jurisdiction. –

It is the plaintiff’s valuation in his plaint which fixes the jurisdiction of the court, and not the amount
which may be found and decreed by the court. Thus, where in a suit for accounts the plaintiff values
his claim at less than Rs. 5000 which is the maximum pecuniary jurisdiction of the court in which the
suit is filed and the amount found due on taking the accounts exceeds Rs. 5000, the court has power to
pass a decree for that amount (Krishnaji v. Motilal), and the court can entertain an application for
execution of decree.

Over- valuation and under- valuation:

Although ordinarily it is the value put by the plaintiff on his suit that prima facie determines
jurisdiction, it does not follow that a plaintiff is in every case at liberty to assign any arbitrary value to
the suit and thus be free to choose the Court in which he should bring the suit (Boidya Lal v. Makhan
Lal).

Cases do occur in which a plaintiff over-values his suit or he under-values it. The over-valuation or
under-valuation may be erroneous, or it may be done intentionally by the plaintiff for the purpose of
bringing the suit in a Court different from that in which it would lie if it were properly valued. If the
over-valuation or under-valuation is patent on the face of the plaint, it is the duty of the Court to
which the plaint is presented to return it to the plaintiff to be presented to the proper Court under O. 7,
r. 10, If it is not patent on the face of the plaint, but objection is taken by the defendant that it is over-
valued or under-valued, the Court may require the plaintiff to show that the suit has been properly
valued if there are prima facie grounds for believing that the suit has not been properly valued , but
not otherwise(Koti Pujari v. Manjaya).

Where there is an amendment in the valuation clause of a plaint, the plaint should be returned for
presentation to the proper court having pecuniary jurisdiction, even if a higher Court fee is paid.

Jose Antonio v. Franciso: If a suit is over-valued or under-valued, so that it is brought in a court

whose grade is higher or lower than that of the court which would have been competent to try it if it
had been properly valued, the decree passed is such a suit is not liable to be set aside or reversed by
the appellate court unless:

(i) the objection as to jurisdiction on account of over-valuation or under-valuation was raised by

the defendant in the trial court at or before the hearing at which the issues were framed or
(ii) such over-valuation or under-valuation is found by the Appellate Court to have prejudicially
affected the disposal of the suit on merits.

It is immaterial whether such over-valuation or under-valuation is erroneous or intentional.

Kiran Singh v. Chaman Paswan*, a suit was valued at Rs 2950 and was filed in the court of the
Subordinate judge, Monghyr. The suit was dismissed and the plaintiff filed an appeal in the District
Court. That appeal was also dismissed by the District Court and the Second Appeal was filed in the
High Court of Patna. The High Court held that the correct valuation was Rs 9880 and directed the
appellant to pay the deficit court fees. On the revised valuation,2 the suit would be within the
competence of the Subordinate judge, where it was filed but an appeal against the decree would lie
directly to the High Court and not to the District Court. The appellant, in these circumstances,
contended before the High Court that the appeal to the District Court was incompetent and the decree
passed by the District Court was a nullity and that the Second Appeal should be treated and heard as a
First Appeal. The High Court negatived the contention and dismissed the appeal as no prejudice was
shown. The matter was taken to the Supreme Court. While affirming the decision of the High Court,
the Supreme Court held that the decree passed by the District Court was not a nullity and that a mere
change of forum cannot be said to have caused prejudice to the appellant. The decree passed by the
District Court was, therefore, upheld.

SECTION 16: SUITS TO BE INSTITUTED WHERE THE SUBJECT MATTER SITUATE

a) Subject to pecuniary or other limitations prescribed by any law:

For pecuniary: Say property “A” in situated in city “W” but the value put by the plaintiff in suit is
exceeding the value to be filed in district court of city W (only HC have pecuniary jurisdiction of this
value as per that state rules) and in that state only City Q have HC, therefore, the case will be filed at
City Q and not city W.

For other limitations :

Debt Recovery Tribunal (DRT): As discussed earlier, if a bank or financial institution is seeking
recovery of a debt secured by immovable property, the case must be filed in the DRT where the
property is located, subject to the DRT's jurisdictional limits.

b) Scope of the section:

This is one of a group of sections which refer to courts in India and to I.M.P situate in property.

c) Clause (a) : suits for recovery of I.M.P:

Example: a suit for the recovery of IMP situate in the city of Bombay must be instituted in a court
in Bombay having jurisdiction to entertain the suit. The small cause court in Bombay has no
jurisdiction to try such suits (according to presidency small cause court act, 1882). The suit must,
therefore, be brought in the HC or the city civil court depending on the subject value of the suit.
Hence it is that section commences with the words “subject to the pecuniary or other limitations
prescribed by any law”.

The insertion of the words “with or without rent or profits” is intended to remove any difficulty
there may be where the defendant does not reside within the local limits of the court within
whose jurisdiction the property is situate.

d) Clause (c) : suit for foreclosure, sale or redemption:

SALE: A mortgages certain immovable property to B to secure payment of money lent to him by
B. Here A is the mortgagor and B is the mortgagee. If A does not repay the loan on the due date,
B may institute a suit against A for sale of the mortgaged property, so that the mortgage-debt may
be paid out of the sale proceeds of the property, or he may sue for foreclosure of the mortgage.

Foreclosure: The decree in a foreclosure suit provides that if the mortgagor fails to pay the
amount that may be found due to the mortgagee within a time specified by the Court (generally
six months), the mortgagor shall be absolutely debarred of all right to redeem the property .

Redemption: If A offers payment of the mortgage-debt to B, but B disputes the amount and
refuses to reconvey, A may sue B for redemption of the mortgage, and the Court will pass a
decree ordering an account to be taken of what will be due to B, and directing that upon A paying
to B the amount so due, B shall reconvey the property to A .

Suits for foreclosure, sale or redemption must be instituted in the Court within the local limits of
whose jurisdiction the mortgaged property is situate. In view of the commencing words of the
section where a case falls directly under cl. (C) s. 20 cannot be called in aid.

e) Clause (d) : suit for determination of any other right or interest in IMP:

This clause related to such suits in which the determination of any right to or interest in IMP not
covered by clause a, b and c is involved.

Examples:

1) A suit for declaration of the plaintiff’s right to rent where such right is denied comes under
clause (d) of the present section, and must be instituted in the court within local limits of
whose jurisdiction the property is situated. (Keshav v. Vinayak)
2) A Suit by vendor of land for the recovery of unpaid purchase money against the buyer who
refuses to complete the purchase, is a suit “for the determination of any right to or interest in
IMP” within the meaning of clause(d).
f) Clause (e) : wrong to IMP:

This refers to torts affecting IMP, such as trespass nuisance, infringement of easement etc.

g) Clause (f): movable property actually under distraint or attachment.- Movable property under
attachment constitutes an exception to the general rule that movables follow the person . This
exception is probably based on the principle that a movable property under attachment is one
in seisin of the Court (state of assam v biraj mohan). The Code follows this rule for the sake
of convenience of judicial administration.
h) Proviso to the section.—

The last paragraph of the section provides that suits to obtain relief respecting, or compensation
for wrong to, immovable property, may be instituted at the plaintiff's option either in the Court
within the local limits of whose jurisdiction the property is situate, or in the Court within the local
limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business
or personally, works for gain, provided-

(1) the property is held by or on behalf of the defendant;

(2) the relief sought can be entirely obtained through the personal obedience of the defendant
and
(3) the property is situate in, and not beyond, India.

The proviso does not apply when the property is in the possession. of the plaintiff . As the
plaintiff has the option of suing in the local jurisdiction, the scope of the proviso is more limited
than in the rule of English Equity. The proviso is an exception to the main clauses and should not
be construed as enlarging their scope. It applies therefore only if the suit falls within one of the
categories mentioned in the section and complete relief could be granted by compelling obedience
of the defendant to the decree.

Section 17: suits for IMP situate within jurisdiction of different courts

1. Scope and object of the section.—

This section supplements the provisions of section 16, and applies only to suits falling within
clauses (a) to (e) of that section (e).

It is intended for the benefit of suitors, the object being to avoid multiplicity of suit (harchandar
v. Lal Bahadur).
Gopi Mohan v. Doybaki : A sues B in a Court in district X on a mortgage of two properties, one
situate in district X & and the other in district Y. The Court in district X has jurisdiction under
this section to order the sale not only of the property in district X, but also of the property in
district Y, and to sell in execution of its decree the property in district Y. A is not obliged to bring
two suits, one in the Court of district X and the other in the Court of district . He may bring only
one suit in either Court, and it matters not if the properties are several, one in each district, or one
property extending over two or more districts.

The same rule applies to suits for partition and to suits for the recovery of immovable property. A
can sue in any Court in which any part of the immovable property is situated and he has the right
to select his own forum; though this right may be controlled by the Court of appeal or the High
Court; see secs. 22 and 23

2. May be instituted.—

Cases are conflicting as to whether a plaintiff suing in respect of a part of a property in one
district only is barred from suing as to the other part or the rest of the property in another district
in the jurisdiction of another Court.

But the better opinion is that there is no bar and that the section is permissive (subba rau v. rama
rau)

Thus, if A succeeds as heir to two properties, one in district X and the other in district Y, A may
sue in the Court of district X for the recovery of both properties. But if A sues in the Court of
district X for the recovery of the property in that district only, he will not be barred from suing
subsequently in the Court of district Y for the recovery of the property in that district.

3. Section 17 does not apply if the cause of action as to the property without the local limits of
jurisdiction is different.—

The principle is that it is only in those cases where there is one cause of action and the basis of the
plaintiff's claim is the same in all this claims that one joint suit in respect of all the immovable
properties, whether situate within the jurisdiction of that court or within the jurisdiction of
different courts, can be taken cognisance of provided that a part of the property lies within the
territorial jurisdiction and the total claim is also within the pecuniary jurisdiction.

Nisar Ali v. Mohamad Ali: In this case, the plaintiff filed a suit in an Oudh Court to recover one
immovable property within its jurisdiction and two properties in Punjab, all claimed under a will.
The plaintiff was allowed to include the two Punjab properties in the suit under Section 17 of the
Civil Procedure Code (CPC), which deals with suits involving properties situated in multiple
 jurisdictions. However, the plaintiff also sought to be declared the mutawalli (trustee) of another
property in Punjab, the Khalikabad estate, based on a separate cause of action involving a wakf
deed. The Privy Council ruled that the claim concerning the Khalikabad estate was distinct from
the other property claims, as it depended on interpreting the wakf deed rather than the will.
Therefore, Section 17 could not justify including this property in the Oudh suit, and the case for
the Khalikabad estate should have been filed in the court where the property was located (Punjab).

Section 18 : place of institution of suit where local limits of jurisdictions of courts are
uncertain

Section 18 of the Civil Procedure Code (CPC) addresses situations where there is uncertainty about
which of two or more courts has jurisdiction over immovable property. If there is valid uncertainty,
any one of those courts can record a statement to that effect and proceed with the suit, and its decree
will be treated as if the property were within its jurisdiction, provided the court is competent based on
the nature and value of the suit. If no statement of uncertainty is recorded, and a jurisdictional
objection is raised on appeal or revision, the appellate court will only consider it if there was no
reasonable ground for uncertainty at the time of filing the suit and if the lack of jurisdiction caused a
failure of justice.

The uncertainty which legislature had in view was the alteration of boundaries of fluvial action. The
absence of a notification of the boundaries of a district was held to create a reasonable uncertainty.

“and there has been a consequent failure of justice” – these have been added in order to restrict the
taking of technical objection as to jurisdiction. Alla Ditta v. Abdul Qadir, is an instance of an
objection to jurisdiction being disallowed although no statement was recorded as required by sub-
section(1).

Section 19: suits for compensation for wrongs to persons or movables

1. Scope of Section.-

Section 16 refers to suits for immovable property which have to be filed in the local jurisdiction.
Section 20 refers to personal actions such as action in tort or contract, where jurisdiction depends
upon the residence of the defendant or the accrual of the cause of action. Section 20 overlaps this
section which gives an option where the cause of action accrues in the jurisdiction of one Court
 and the defendant resides in the jurisdiction of another Court. The section is limited to actions in
torts committed in India and to defendants residing or carrying on business or personally working
for gain in India . It excludes suits for an injunction and suits in respect of torts committed outside
India. Such suits fall, where the defendant is resident in India, not under this section, but under
section 20.

2. Wrong.—

Wrong means a tort or actionable wrong, i.e., an act which is legally wrongful as prejudicially
affecting a legal right of the plaintiff . But it must be a tort affecting the plaintiff's person, or his
reputation as in the illustrations, or his movable property; for torts affecting immovable property
such as trespass or nuisance or infringement of casement fall under section 16(e).

3. This section does not apply to the suits against the governments for damages of tort where the
tort is committed outside the jurisdiction as the word “resides” refers only to natural persons
and the words “carries on business” refer to commercial business. Therefore, such suits
(against government) can only lie in the court of the place where the tort is committed.

SECTION 20 : OTHER SUITS TO BE INSTITUTED WHERE DEFENDANTS RESIDE OR

COA ARISES:

1. Subject to the limitations aforesaid:

The limitations are pecuniary and other limitations referred to in section 16.

This section overlaps section 19 and is subject to section 16 and by implications to section 15.

2. Scope and principle of the section:

This is a general section embracing all personal actions. At common law actions are either
personal or real. Personal actions are also called transitory because they may occur anywhere,
such as actions for tort to person or to movable property or suits on contracts. Real actions are
actions against the res or property and are called local because they might be brought in forum res
sitoc, that is, the place where the IMP is situate.

A action may also be a mixed action being partly real and partly personal. Such as torts to
IMP(trespass, nuisance) referred in section 16(e).

Otherwise section 16 deals with real and local actions, while section 19 and section 20 deals with
personal actions.
 The limitations mentioned in this section exclude the real and mixed actions of Section 16 and
confine the section to personal actions. The plaintiff has the option of suing either (1) where the
cause of action has accrued or (2) in the forum of the defendant, i.e., where the defendant resides,
or carries on business or personally works for gain J This alternative is shown in the illustrations
which are taken from two old cases, the first from Winter v. Way and the second from DeSouza v.
Coles.

Before the jurisdiction of a Court can be invoked under this section, it must be shown that the
defendant was actually and voluntarily residing or carrying on business or personally working for
gain within its jurisdiction at the time of the suit. Neither the fact that he once resided there nor
that he became resident thereafter the suit was instituted would confer jurisdiction on the Court if
he was not residing there at the commencement of the suit.

In Harshad Chiman Lal v. DLF Universal Ltd; the SC held that plain reading of section 20 of
the code leaves no room for doubt that it is a residuary provision and covers those cases not
falling within the limitations of sections 15 to 19. The opening words of the section (“subject to
the limitation aforesaid”) are significant and make it abundantly clear that the section takes within
its sweep all personal actions.

Indian Performing Rights Society Ltd v. Sanjay Dalia; Section 20 of the code has been designed
to secure that justice might be brought as near as possible to every ma’s hearthstone and that the
defendant should not be put to the trouble and expense of travelling long distances in order to
defend himself in cases in which may be involved.

3. “Actually and voluntarily resides”:

 Jurisdiction Based on Residence: as regards personal actions, Courts can have jurisdiction over a
case if the defendant resides in their jurisdiction, even if the cause of action (the event or legal issue
giving rise to the lawsuit) occurred outside India. For example, a partner could file a lawsuit in Bulsar
for the dissolution of a partnership that was conducted abroad if the defendant partner lived in Bulsar
at the time the suit was initiated.

 Jurisdiction Over Non-Residents: Even if a defendant is not a resident, an Indian court can
entertain a suit if the cause of action occurred within the court's jurisdiction, which applies even to
non-resident foreigners.

 Residence Terminology:

 "Actually" Residing: Refers to a person's real, physical presence in a place, excluding

merely legal or speculative presence. It is different from domicile and constructive residence
(which may be inferred).
 "Voluntarily" Residing: Excludes situations where residence is compelled, such as
imprisonment or confinement to a particular place.
  "Resides": Implies staying in a place for a considerable time, whether temporarily or
permanently. It refers to making a place your abode.
 Legal vs. Actual Residence: A person may have a legal residence where their family lives
and an actual residence where they personally spend most of their time. Temporary absences
do not change this classification.

 Natural Forum:

The residence contemplated by clause (a) and (b) is of such a nature as to show that the court in which
the defendant is sued in his natural forum. If someone has been continuously living in a certain place,
temporary absences do not remove the court's jurisdiction.

 Intention of legislature:

The Legislature has used the word resides' at various places in different contexts in the code.
It is sometimes used in a more restricted sense and sometimes in an extended sense; (section
136 and O.25 R.1) The word, therefore, has to be construed according to the intention of the
Legislature. However, there is no distinction between the word resides' as used in secs. 16, 19
and 20 and the word 'dwell" in cl. 12 of the Letters Patent. Hence, cases decided on the latter
word would be authorities on the construction of the former.

6. “Dwells” within the meaning of clause 12 of letters patent :

 Permanent Residence: A person’s dwelling or residence must have a permanent or semi-

permanent character to establish that the High Court where the defendant is sued is their "natural
forum" (the appropriate court to hear the case). If a defendant has a permanent home at one location,
they cannot be considered to dwell at a place where they are staying only temporarily, such as for a
lawsuit or a brief visit.

 Temporary Stay: If a person has no permanent residence, they are considered to "dwell" where
they are actually staying at the time. For example, a political agent residing in a government building
in Kolhapur left for England and stayed briefly in Bombay. He was deemed to "dwell" in Bombay for
those three days, which allowed the Bombay High Court to take jurisdiction.

 Temporary Residence for Short Periods: In another case, a man who came to Calcutta for a
month for racing was considered to "dwell" in Calcutta because he had no other residence during that
period.

 Multiple Residences: A person can have more than one permanent residence. In such cases, they
are considered to "dwell" in any of the places where they are physically staying at the time. For
instance, a person with residences in both Mussoorie and Bilaspur could be considered to reside in
either place. Similarly, if someone alternates between staying in Calcutta and the countryside, they
can be sued in Calcutta if that’s where they are staying when the suit is filed.

 Occasional Visits Do Not Establish Residence: However, if a person has been living and
working in one place for many years, merely having a family house in another city that they visit
occasionally does not make the latter city one of their places of residence. For instance, if someone
lives in Bombay but occasionally visits a family home in Ahmedabad, they cannot be said to reside in
Ahmedabad.

7. “Carries on business”:
 those words also occur in clause 12 of the letters patent, and the decisions under that clause apply
equally to cases arising under section 16,19 and 20.

1. Restricted Meaning: The term "business" in this context is specifically limited to

commercial activities where a person might incur debts or enter into business transactions.
Non-commercial activities, like a Hindu priest receiving offerings, do not qualify as "carrying
on business."
2. Location of Business:
o A person may carry on business in a location even if they do not have a formal office
or establishment there. For instance, someone residing outside a city but visiting
regularly for business may be deemed to "carry on business" in that city.
o The business does not have to be conducted personally (Muthaya V.Allan) . the
phrase “carries on business” is used as distinct from the phrase “personally for the
gain”. It does not involve actual presence or personal effort.
o It can be carried out through an agent, manager, or other representatives. However,
the person must have an interest in the business, a voice in what is done, some
control, and a share in the gain or loss.
3. Agent Conditions:
o The person acting as an agent must be a special agent attending exclusively to the
principal's business and not a general agent representing multiple parties. For
instance, if a trader sends goods to be sold by a commission agent who also sells
goods for others, the trader is not considered to carry on business at the agent's
location.
o The agent must be a legitimate agent as per the legal definition. For example, the
manager of a joint Hindu family does not qualify as an agent under this condition.
4. Essential Business Activities:
o To constitute “carrying on business” at a certain place, the essential part of the
business must take place in that place. For example, a retail dealer selling goods
outside a city cannot be said to carry on business in that city merely because they
have an agent there to import stock. To "carry on business" at a location, his agent
should made sales there on his behalf.
5. Examples:
o If a firm employs an agent at a location who only collects orders without making
sales or receiving money, the firm does not "carry on business" there. On the other
hand, a firm with a branch office where money is paid or disbursed is deemed to carry
on business at that location.
o Similarly, a life insurance company that has an agent merely forwarding documents
does not carry on business at that location.
o Guardian Assurance v. Shiva mangal, when a company incorporated outside india
gets itself registered in india and does business in a place in india through its an
agent authorized to handle insurance proposals, pay claims, and to do other business
incidental to the work agency, it can be considered to carry on business at that
location.
6. Jurisdiction Based on Business:
o Courts must establish that the essential business activities occur at the location in
question for jurisdiction to apply. Simply having a branch office or an agent may not
be sufficient unless significant transactions are conducted there.

Jurisdictional Implications:

 To determine if someone "carries on business" at a certain location for the purposes of legal
jurisdiction, courts will examine whether commercial activities occur there, whether the
person has an active role or interest in the business, and whether key business functions are
performed there.
8.Leave of the court:

"Leave of the Court" under Section 20(b) of the Civil Procedure Code (CPC), which deals with
jurisdiction issues, particularly when some of the defendants in a case reside within the court's
territorial jurisdiction while others do not.

Explanation:

1. Leave of the Court: When filing a lawsuit involving multiple defendants, some of whom
may reside outside the court's jurisdiction, permission (or "leave") from the court is required
to proceed against those defendants who are outside the jurisdiction. This permission ensures
that the court carefully considers whether it is fair to include non-resident defendants in the
suit.
2. Jurisdiction Over Defendants: Firm Babu lal ram lal, mandi v. New India Assurance Co.
Ltd. New Delhi;
o Goods stored in a place (A) were damaged by fire.
o These goods were insured with two companies, B and C.
o The court at A had jurisdiction to entertain the claim against company B but not
against company C.
o To proceed against C (which is outside the court's jurisdiction), the court can grant
leave under Section 20(b) to allow the claim against C.
3. Case Example:
o A plaintiff filed a recovery suit against six defendants. The sixth defendant was a
bank incorporated in West Germany but had a branch in Bombay.
o The plaintiff sought leave under Section 20(b) to file the suit against this sixth
defendant, as the bank was not residing within the court's territorial jurisdiction.
o The trial court held that the leave could not be granted arbitrarily, especially since the
sixth defendant, who was outside the jurisdiction, was the main defendant.
o On revision, the court found that the sixth defendant was only an alternative
defendant and not the main defendant. Therefore, the leave was granted to proceed
against the sixth defendant.
4. Granting Leave to Avoid Hardship: Bank of India v. Mehta Brothers;
o All the five other defendants and the plaintiff were conducting business in Delhi.
Evidence was also located mostly in Delhi.
o In such a scenario, the court found it in the interest of justice to grant leave to avoid
unnecessary hardship to the plaintiff and the other five defendants.
5. Timing of Leave:
o Leave can be granted even after the suit has been instituted (filed) or even at the stage
of appeal.
6. Court’s Consideration:
o Before granting leave, the court must consider the position of the non-resident
defendants, especially if they do not appear or are the real contesting parties. The
objections of those who do appear must also be taken into account.
7. Non-Residents:
o Non-resident defendants include individuals residing outside India.
8. Refusal of Leave:
o If the court refuses to grant leave under Section 20(b), the suit cannot proceed against
the non-resident defendants unless they consent to be part of the case.
9. Appeals:
o The merits of an order refusing leave cannot be challenged in an appeal if the court
returns the plaint (lawsuit) for filing it in the proper court with jurisdiction.
9.Acquiesce:

 Old Provision in the Code of 1882:

 Under the Code of Civil Procedure, 1882, Section 20 provided that if a defendant did not
reside within the jurisdiction of the court and did not apply for a stay of proceedings, the
defendant would be deemed to have acquiesced (accepted) the jurisdiction of the court. This
meant that by not objecting, the defendant was considered to have accepted the court's
authority to try the case.

 Omission in the Current CPC:

 In the current CPC, this provision has been omitted. There is no automatic presumption that
a defendant has acquiesced in the jurisdiction of the court if they fail to apply for a stay or
transfer of proceedings.
 Sections 22, 23, and 24 of the CPC, which deal with the transfer of suits from one court to
another, also do not provide any such presumption.

 Judicial Interpretation:

 The Calcutta High Court ruled that a defendant cannot be deemed to have acquiesced
simply because they did not apply for a transfer of the suit. In the case of Manoramabai v.
Ibrahim Khan (1969 A.B. 366), it was held that failure to request a transfer does not imply
acquiescence in the court's territorial jurisdiction.

 Estoppel by Admission:

 However, if a party to the suit admits the court's territorial jurisdiction (for example, by
participating in the proceedings without objection), that party may be estopped (prevented)
from later denying the court's jurisdiction. This principle follows the legal doctrine that a
person cannot both approbate and reprobate, meaning they cannot accept the court's
jurisdiction at one stage and deny it later.

 Jurisdiction and Acquiescence:

 If there are multiple defendants, where one defendant resides or conducts business within the
jurisdiction of the court, and another does not, the court will only have jurisdiction over the
non-resident defendant if:
o (a) That defendant acquiesces to the jurisdiction, or
o (b) The leave of the court is obtained to proceed against the non-resident defendant.

10. “PERSONALLY WORKS FOE GAIN”:

 Purpose of the Phrase:

 These words were added to the Civil Procedure Code to grant courts jurisdiction over
individuals who may not reside within their territorial jurisdiction but enter the area to work
or conduct business to earn an income. For instance, a lawyer (pleader) may live outside the
jurisdiction of a High Court but regularly practice law within the court’s territorial limits, thus
"working for gain" within that jurisdiction.

 Meaning of "Works":
 The word "works" implies that the person must be engaged in some form of mental or
physical effort to earn a living or income. This is essential to establish that the person is
"working for gain."
 Example: A professional, such as a lawyer or an engineer, who travels to another city to offer
their services would be considered to be "working for gain."

 Hindu Priest Example:

 The phrase does not apply to someone like a Hindu priest who might receive offerings or
donations. This is because such activities are considered spiritual or religious duties rather
than work performed for commercial or financial gain through mental or physical effort.

 Exceptions:

 The phrase "works for gain" is not applicable to:

o Government employees (who are performing duties assigned by the state).
o Companies or corporations, as they are legal entities, not individuals, and the
phrase specifically addresses individuals engaged in personal effort to earn a living.

11. CAUSE OF ACTION:

Definition of Cause of Action (COA):

 A cause of action refers to the set of facts or circumstances that entitles a person to file a
lawsuit. It is a bundle of facts that, combined with applicable legal rules, gives the plaintiff
the right to seek relief from the defendant.

 These facts include some wrongful act or omission by the defendant. Without such an act or
infringement of rights, a cause of action cannot arise.

2. Facts Constituting COA:

 The cause of action is not just the infringement of a legal right but includes all material facts
necessary for the plaintiff to establish their right to obtain a judgment from the court.

 The plaintiff must prove these facts if contested by the defendant.

3. Historical Context:

 Under the Code of 1882, the law only referred to the place where the cause of action arose.
However, it was unclear whether this meant the entire cause of action or just part of it.

 To clarify this, Section 7 of Act 7 of 1888 was introduced, which explained that in contract
cases, the cause of action could mean the whole or any part of the facts giving rise to the
claim. But it wasn't clear whether this interpretation applied to other types of suits.

4. Present CPC Provisions:

  In the current CPC, the explanation regarding contracts has been omitted, and the phrase
"wholly or in part" has been added after "cause of action." This means that in all suits, a
case can be filed in any court where the whole or part of the cause of action arises.

5. Examples of COA:

 Contracts: In a suit for damages for breach of contract, the cause of action arises in both the
place where the contract was made and where the breach occurred. The plaintiff can file the
suit in either place.

 Partnership: A suit for the dissolution of a partnership or for an accounting can be filed in
the location where the partnership contract was signed or where the business is conducted. If
the business operates in more than one location, the plaintiff can choose any of those places to
file the suit.

 Insurance: In a suit to recover money from an insurance policy, the death of the insured
person is part of the cause of action. Therefore, the suit can be filed in the jurisdiction where
the insured person died.

6. Significance of COA for Jurisdiction:

 Jurisdiction is closely tied to where the cause of action arises. A case can be filed in any court
that has jurisdiction over the location where any part of the cause of action occurred. This
gives the plaintiff flexibility to choose a court that is convenient or favorable for their case.

12. Explanation : suit against cooperation:

Corporation Defined:

 The term "corporation" in Section 20 includes not only statutory corporations (created by
legislation) but also companies registered under the Companies Act.

 For the purposes of jurisdiction, the domicile of a company is considered to be the location of
its principal place of business, which is usually where the company's central management
and control are found.

2. Principal Place of Business:

 In most cases, the registered office of a company under the Companies Act is also its
principal place of business because this is where the company's controlling powers are
exercised.
  However, this is not always the case. The principal place of business is a factual question
and may vary depending on where the company's business and trading activities actually
occur.

 A company can have branch offices in multiple jurisdictions, and it may be sued in any
jurisdiction where a cause of action arises, based on its local operations.

3. Suit Against Corporations:

 Clause (c) of Section 20 allows a corporation to be sued either at its principal office or in
any location where it carries on business, irrespective of where the cause of action arose.

 This means that a company can be sued in any jurisdiction where it operates a subordinate
office as long as the cause of action arose in that location.

4. Deeming Provision:

 The Explanation attached to Section 20 contains a deeming provision, which considers a

corporation to be carrying on business at its sole or principal office, even if it operates at
various places. This fiction helps establish jurisdiction over corporations that operate in
multiple locations.

 However, this deeming provision does not apply to Clause 12 of the Letters Patent (which
governs certain High Court jurisdictions), where the actual fact of where the company is
conducting business at the time of suit becomes the test for jurisdiction.

5. Special Provisions:

 Section 446(2) of the Companies Act overrides Section 20 of the CPC in the case of
companies undergoing winding up. In such cases, only the court handling the winding up has
jurisdiction over suits by or against the company.

6. Uniform Treatment of Defendants:

 Section 20 treats natural persons and juristic persons (such as corporations) equally when it
comes to jurisdiction. This means that jurisdiction is determined based on the residence or
activities of the defendant, regardless of whether the defendant is a corporation or an
individual.

7. Practical Example:

 In the case of State Bank of Amritsar, the plaintiff failed to show that any part of the cause
of action occurred in Amritsar. As a result, the court ruled that the Amritsar court had no
jurisdiction. The suit could only be filed in the Bombay court, where the State Bank of
 India's principal office is located, or in the Ghaziabad court, where the cause of action
(related to the plaintiff's account and locker) had arisen.

8. Section 20 Explanation:

 The Explanation to Section 20, while allowing the plaintiff to sue a corporation in multiple
places, ensures that the corporation can defend itself conveniently through its principal or
subordinate office in the jurisdiction where the suit is filed.

13. No Jurisdiction Over Non-Resident Foreigners for Actions Outside India:

 Indian courts do not have jurisdiction over non-resident foreigners if the cause of action
arises entirely outside India (n).

 This means that if the foreigner does not reside or carry on business in India, and the cause of
action did not occur in India, the courts cannot entertain a suit against them.

2. Jurisdiction for Non-Resident Foreigners Living in India:

 However, if a foreigner resides in India or carries on business or works for gain within the
territorial limits of an Indian court, the court has jurisdiction over them for actions accrued
abroad (o).

 A foreigner living, working, or conducting business in India is subject to Indian court

jurisdiction, similar to any Indian citizen.

3. Jurisdiction Based on Cause of Action Arising in India:

 If the cause of action arises within India, even against a non-resident foreigner, an Indian
court may have jurisdiction (1). This is based on the general principle that the court where the
cause of action arises has jurisdiction.

 For example, a foreigner borrowing money in India can be sued in India, regardless of their
place of residence (e.g., if A from the Native State of Sangli borrows money from B in
Belgaum, B can sue A in Belgaum).

4. Carrying on Business Through an Agent:

 Even if a foreigner does not personally reside or work for gain in India, Indian courts may
have jurisdiction if the foreigner carries on business in India through an agent (2).

 There have been conflicting rulings on this point. In Bombay, an earlier decision held that if
no part of the cause of action occurred in Bombay, the court would not have jurisdiction over
a foreigner doing business through an agent (t). However, this was later overturned, and it
was held that such suits could be maintained (u).
5. Specific Performance and Immovable Property:

 Indian courts have held that suits for specific performance of agreements concerning
immovable property located in India can be filed in the jurisdiction where the property is
situated, even if the agreement was made outside India and the defendant is a non-resident
foreigner (x).

 This applies regardless of where the foreigner resides, as long as the property in question is
located within India.

6. Enforceability of Judgments:

 While a decree passed by an Indian court against a non-resident foreigner may be

enforceable within India, it might not be enforceable in foreign courts. Additionally, if a
decree is passed against multiple defendants, including some foreign residents outside India,
the decree may not be executable against those foreign residents outside India (s).

7. Jurisdiction Over Citizens:

 When dealing with Indian citizens, the question of whether they reside within the court’s
jurisdiction is not as relevant. If an Indian citizen has a permanent dwelling in India, the
court can issue a decree against them even if they were residing outside India at the time of
the action.

OBJECTION AS TO JURISDICTION

(SECTION 21)

By jurisdiction is meant the authority with which a court has to decide matters that are litigated
before it. The limits of this authority are imposed by the statute or commission under which the
court is constituted.

A limitation may be

1. As to the subject matter

2. As to the pecuniary limits
3. As to the place

It is well settled that the objection as to the local jurisdiction or pecuniary jurisdiction of a court does
not stand on the same footing as an objection to the competence of a court to try a case. The
competence of a court to try a case goes to the very root of the jurisdiction and where it is lacking, it is
a case of inherent lack of jurisdiction.
Therefore, in the present section the limitation as regards to objection of jurisdiction is limited to
pecuniary jurisdiction or territorial jurisdiction.

The SC has held in the case of Mantoo Sarkar v. Oriental Insurance Co. Ltd, that it is permissible
to raise to the jurisdiction at any stage when the objection is as regards the subject- matter of the suit.
S.B Sinha, J., observed as follows(para 19 at p. 1026) :

“A distinction, however, must be made between a jurisdiction with regard to the subject matter of the
suit and that of territorial and pecuniary jurisdiction. Whereas in the case of falling within the former
category the judgement would be a nullity, in the latter it would not be.”

Therefore, rising objection as to jurisdiction distinction should be made between irregularity in

exercise of jurisdiction or irregularity in the assumption of jurisdiction and want of jurisdiction.

An irregular exercise or assumption of jurisdiction may be waived ( meaning if not exercised at the
earliest possible opportunity) and therefore, if a court were erroneously to assume jurisdiction to try a
suit over which it has inherent jurisdiction its decree may be set aside but it cannot be treated as a
nullity. But, when the court is not competent to entertain and try a suit, there is a want of jurisdiction
which cannot be waived , and the objection as to jurisdiction can be raised at any stage (even at stage
of appeal ) and this section is not applicable where there is inherent lack of jurisdiction( UOI V.
BHAGAT RAM)

Objective of this section

This section aims at the expeditious disposal of the suit by avoiding technical objections about the
territorial or pecuniary jurisdiction of a court (as they have inherent jurisdiction of subject matter of
the suit ) , unless there is a failure of justice.

In order to ascertain whether there has been a failure of the justice, the appellant court must go into
the merits of the case and form an opinion upon the justice or otherwise of the decision of the first
court.

OBJECTION AS TO PLACE OF SUING – 21(1)

Section 15 – 20 lay down the rules as to the place of suing and there is no doubt that in this section the
expression is used with reference to those rules. Those rules regulates the venue in places in India
where the code applies. They deal with the matters of domestic concerns and prescribe rules for the
assumption of territorial jurisdiction by Indian courts in matters within their cognisance.

OBJECTION AS TO PECUNIARY JURISDICTION:

It is plaintiffs’ valuation in the plaint that determines the jurisdiction of the court and not the amount
for which ultimately the decree may be passed by the court. But if the defendant disputes the
valuation put by the plaintiff, it is the duty of the trail court to enquire into it and to pass an
appropriate order.

PATHUMMA V. KUNTALAN KUTTY

Under Section 21(1) & Section 21(2) , no objection as to place of suing will be allowed by an
appellant or revisional court unless the following three conditions are satisfied:

(i) The objection was taken in the court of first instance.

(ii) It was taken at the earliest possible opportunity and is cases where issues are
settled at or before settlement of issues; and
(iii) There has been a consequent failure of justice.

All these three conditions must coexist.

But the section does not preclude objections being taken in appellant or revisional court, if the trial
court has not decided the suits on merits.

The policy underlying section 21 has been succinctly explained by the SC in Kiran Singh v. Chaman
Paswan, wherein their lordship observed:

“when a case had been tried by court on the merits and judgement rendered, it should not be liable to
be reversed purely on technical grounds, unless it had resulted in failure of justice, and the policy of
the legislature has been to treat objections to both territorial and pecuniary jurisdiction as technical
and not open to consideration by an appellant court, unless there has been a prejudice on merits”

Illustration with regard to Pecuniary jurisdiction:

A files a suit against B to recover possession of a house. He values his claim in the plaint at Rs.8000.
the suit is filed in court C, which has jurisdiction to try suits of a value up to Rs. 10,000. The market
value of the house is Rs.12,000, but B does not object to the jurisdiction of the court. The decree is
passed in favour of A. In appellate court, B cannot take the objection about the pecuniary jurisdiction
of court C.

OBJECTION IN EXECUTION PROCEEDINGS

The principle of this section applies to the execution proceedings also. This is now made very clear by
subsection (3) inserted in 1976, which requires that the objections as to local limits of jurisdiction of
the executing court must have been raised in the executing court at the earliest opportunity and even
where it has been so raised , there must be consequent failure of justice.
 BAR OF SUIT: SECTION 21A

Can a objection of jurisdiction be challenged by filing a new suit? There were conflicting decisions on
that point.

Section 21-A, as inserted by the Amendment Act of 1976, now specifically provides that no
substantive suit can be filed to set aside a decree passed by a court on an objection as to the place of
suing.

The provision, however, is ambiguous, defective and incomplete. It speaks of place of suing only and
does not deal with pecuniary limits or defects. It is, however, submitted that the principle applicable to
territorial defects will pro tanto apply to pecuniary defects as well.

SECTION 10: RES SUB JUDICE : STAY OF SUIT

SCOPE AND OBJECT OF THE SECTION:

INDIAN BANK V.MAHARASHTRA STATE CO-OP MARKETING FEDERATION LTD, The

object of the rule of res sub judice contained in this section is to prevent courts of concurrent
jurisdiction from simultaneously entertaining and adjudicating upon parallel litigations filed for the
same cause of action, for the same subject-matter and for the same relief between the same parties and
to avoid recording of conflicting findings on issues which are directly and substantially in issue in two
suits.

 Applicability

This section contains the rule of res sub judice and is applicable to suits.

 CRITERIA FOR STAY OF SUBSEQUENT SUIT

The present section provides that where a suit is instituted in a court to which the code applies, the
court shall not proceed with the trail of the suit, if

I. First, the matter in issue in the suit is also directly and substantially in issue in a previously
instituted suit between the same parties or their privies,
II. Secondly, the previously instituted suit is pending:
(a) In the same court in which the subsequent suit is brought
(b) In any other court in India (whether superior, inferior or co-ordinate), or
 (c) In any court beyond the limits of India established or continued by the central
government, or
(d) Before the SC (formerly his majesty in council), and
III. Thirdly, where the previously instituted suit is pending in any of the courts mentioned in
clause (b) or clause (c) and such court is a court of competent court to grant the relief claimed
in the subsequent suit.
 INTERPRETATION

INDIAN BANK V. MAHARSHTA STATE CO -OP MARKETING FEDERATION LTD :

Though the heading of the section is stay of suit it does not operate as a bar to the institution of the
subsequent suit. The rule of res sub judice applies to the trial of a suit and not to its institution. It is
only the trial of the suit that is not to be proceeded with.

The section enacts merely a rule of procedure and a decree passed in contravention of it is not a
nullity and cannot be disregarded in execution proceedings.

 MANDATORY IN NATURE

The provisions of s. 10 are mandatory (no discretion is left to the court) and normally, the application
under s. 10 is to be decided after the filing of the written statement by the defendant. However, the
court can entertain and decide the application even before the filing of the written statement.

 APPLICATION TO WRIT PROCEEDINGS

Though the provisions of the CPC do not apply to writ proceedings, the principles of the Code do
apply.

DR. VIJAY PAHWA V. WEST BANGAL MEDICAL COUNCIL

Thus, where the petitioner-doctor filed a writ petition challenging proceedings initiated against him by
the medical council for the alleged death of a patient due to negligent treatment and on the same
allegation a criminal trial was started later, it was held that the petitioner would be entitled to seek
stay of proceedings before medical council.

 CONDITION FOR APPLYING SECTION 10

Under s. 10 CPC, a suit may be stayed on fulfilment of the following conditions:

I. There are two suits one previously instituted and the other subsequently
instituted.
II. The matter in issue in the subsequent suit is directly and substantially in
issue in the previous suit.
III. The parties to both the suits are the same.
 IV. The previously instituted suit must be pending.
V. The court in which the previous suit is pending has jurisdiction to grant
the relief claimed in the subsequent suit.
VI. Both the parties are litigating under the same title in both the suit.
I. PREVIOUSLY INSTITUTED SUIT

It is the pendency of the previously instituted suit that constituted a bar to trial of the subsequent suit.
Previously instituted suit means suit instituted prior in time and not the one decided earlier.

II. SUBJECT MATTER OF TWO SUITS

It is necessary for the application of section 10 CPC, that the matter in issue in the second suit should
be directly and substantially in issue in the first suit, the words directly and substantially in issue have
been used in contra distinction to the words incidentally and collaterally in issue. Thus, section 10
would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the
whole of the subject-matter in both the proceedings is identical and not merely one of the many issues
arising for determination.

ARJIES ALLUMINIUM UDYOG V. SUDHIR BATRA ;

The decision in one suit must non-suit the other suit and this must be the phraseology of answer, to
the question whether the matter in issue in the two suits is directly and substantially the same.

MADAN MOHAN KUKRETI V. GEETA BHAWAN;

Stay of subsequent suit cannot be ordered when only one or some of the issues are identical. There
must be substantial identity of the matter. Where in the previous suit the main question was to validity
of termination of service while the subsequent suit related to termination of license to occupy the
premises, it was held that stay cannot be granted.

PUKHRAJ D. JAIN V. G. GOPALAKRISHNA; It has been held by Supreme Court that where
matter in issue is directly and substantially in issue in a previously instituted suit between the seme
parties, mere filing of application under s. 10 does not put an embargo on the power of the Court to
examine merits of the suit. Thus, suit instituted subsequently can be decided on purely legal points
without taking evidence. It was observed by the Supreme Court that the section merely enacts a rule
of procedure and a decree passed in contravention thereof is not a nullity. It is not for a litigant to
dictate to the Court as to how the proceedings should be conducted, it is for the Court to decide what
will be the best course to be adopted for expeditious disposal of the case.

III. PARTIES TO THE TWO SUITS

The expression the same parties means the parties between whom the matter substantially in issue has
arisen and also has to be decided. The section does not become inapplicable by reason of there being
in addition a party against whom no separate and substantial issue is raised and it would suffice if
there is sufficient identity of parties. The previous suit need not be between the same parties as it can
be between their privies.

IV. JURISDICTION TO GRANT RELIEF

The first court must have had the jurisdiction to grant the relief claimed in the second suit

•illustration

B, residing in Calcutta, has an agent A at Calicut employed to sell his goods there. A sues B in Calicut
claiming a balance due upon an account in respect of dealings between him and B.

During the pendency of the suit in the Calicut court, B institutes a suit against A in Calcutta for an
account and for damages caused by A s alleged negligence. Here the matter in issue in Bs suit is
directly and substantially in issue in A s suit. Further, both the suits are between the same parties,
therefore, if the court at Calicut is a court of jurisdiction competent to grant the relief claimed in B s
suit, the Calcutta court must not proceed with the trial of Bs suit, and the suit in the Calicut court,
being the one instituted prior in point of time, should be proceeded with.

INHERENT POWERS AND STAY OF SUIT

In cases not covered by the provisions of s. 10 CPC, the court may in very exceptional circumstances,
stay a suit under s. 151 CPC. However, in such cases also there must be identity of the subject-matter
and the field of controversy, between the parties in the two suits, and the court must be satisfied that
the continuation of the subsequent suit would be oppressive or vexatious to the defendant and the stay
of suit would not cause any injustice to the plaintiff in the subsequent suit. Further the court may,
instead of staying the suit, order for consolidation of the cases, where it is in the ends of justice to do
so to avoid needless expenses and inconvenience to the parties or where it appears that there is
sufficient unity or similarity in the matter in issue in the two suits and the determination of the suits
rests mainly on common questions.

Exceptions to the Rule of Res Sub Judice (Section 10 CPC):

1. Suit Pending in a Foreign Court:

 The pendency of a suit in a foreign court does not fall within the ambit of Section 10 CPC.
Hence, it does not bar Indian courts from proceeding with a suit based on the same cause of
action.
  For instance, if A, as B’s agent, files a suit in a foreign court (e.g., in Colombo), the
pendency of that foreign suit does not prevent an Indian court from proceeding with B's suit
on the same matter in India.

 This exception ensures that Indian courts are not hindered by foreign litigation and maintain
their jurisdiction over disputes involving Indian litigants.

2. Summary Suits:

 In the case of a summary suit under Order 37 of the CPC, the actual trial begins only after
the defendant is granted leave to defend the suit.

 Hence, the term "trial" under Section 10 does not encompass the entire proceedings of a
summary suit, starting from its institution. The court can proceed with the initial stages, such
as hearing the summons for judgment, passing judgment in favor of the plaintiff (if the
defendant fails to defend), or deciding whether to grant the defendant leave to defend.

 This exception allows the court to expedite summary suits without invoking a stay under
Section 10, unless the trial stage is actually reached.

3. Interim Orders:

 Section 10 does not restrict the court's power to pass interim orders while the suit is stayed.
Courts retain the authority to handle interlocutory matters even if the main proceedings are
put on hold under Section 10.

 For example, the court may issue interim reliefs like injunctions, attachment before
judgment, appointment of a Receiver, or amendments to pleadings, despite the stay of the
main suit.

 The rationale is that such interim decisions do not affect the merits of the case, and they help
keep the case ready for trial as soon as the stay is lifted, thus preventing delays in judicial
processes.

RES JUDICATA : SECTION 11

(1) GENERAL

SATYADHYAN GHOSAL V. DEORJIN DEBI; SC stated that section 11 of the CPC

embodies the doctrine of res judicata or the rule of conclusiveness of a judgement, as to the
points decided either of fact, or of law, or of fact and law, in every subsequent suit between the
same parties. It enacts that once a matter is finally decided by a competent court, no party can be
 permitted to reopen it in a subsequent litigation. In the absence of such a rule there will be no end
to litigation and the parties would be put to constant trouble, harassment and expenses.

(2) HISTORY

The rule of res judicata has a very ancient history. This doctrine has been accepted in all civilized
legal system.

It was well understood by Hindu lawyers and Mohammedan jurists. It was known to ancient
Hindu law as Purva Nyaya (former judgement).

Under the Roman law, it was recognized that “one suit and one decision was enough for any
single dispute”.

(3) NATURE AND SCOPE

"Res" means "subject-matter" or "dispute" and "Judicata" means "adjudged", "decided" or

"adjudicated", "Res Judicata" thus means "a matter adjudged" or "a dispute decided".

The doctrine of res judicata is conceived in the larger public interest which requires that all
litigation must, sooner than latter, come to an end. The principle is also founded on justice, equity
and good conscience which require that a party who has once succeeded on an issue should not be
harassed by multiplicity of proceedings involving the same issue. Section 11 of the Code contains
in statutory form, with illuminating explanations very salutary principle of public policy. It
embodies the rule of conclusiveness and operates as a bar to try the same issue once again. It
thereby avoids vexatious litigation.

(4) OBJECT

The doctrine of res judicata is founded on three maxims, which are non-negotiable in any
civilized system of law

(a) nemo debet bis vexari pro una et eadem causa (no man should be vexed twice for the same
cause);

(b) interest republicae ut sit finis litium (it is in the interest of the State that there should be an
end to a litigation); and

(c) res judicata pro veritate occipitur (a judicial decision must be accepted as correct).

Thus, the doctrine of res judicata is the combined result of public policy reflected in maxim (b) and
(c) and private justice expressed in maxim (a); and they apply to all judicial proceedings whether
civil or criminal.
The leadings case on the doctrine of res judicata is the Duchess of Kingstone case, wherein Sir
William de Gray made the following remarkable observations:

“Based on the many cases where judgments from one court are used as evidence in civil suits, two
general rules can be understood; First, if a court that has the same level of authority as another court
has already decided a specific issue, that decision either prevents the issue from being re-litigated
("as a plea, a bar") or is considered as final proof ("evidence conclusive") in a different case
involving the same parties on the same issue. Second, if a court that has exclusive authority over a
particular issue has made a decision on that issue, that decision is also final and binding on the same
matter in a different court, even if it comes up incidentally (not as the main issue) in a different case
involving the same parties, but for a different legal purpose.”

(5) ILLUSTRATIONS TO UNDERSTAND THE DOCTRINE OF RES JUDICATA:

a) Breach of Contract – Repeated Litigation Barred:

 Scenario: A sues B for damages for breach of contract, but the suit is dismissed. Later, A files
another suit for damages on the same breach of contract.

 Application of Res Judicata: The second suit is barred because A's right to claim damages
was already decided in the previous case. Res judicata prevents B from being harassed with
the same lawsuit twice, and public policy demands an end to litigation to maintain the finality
of judgments.

b) Sale Deed – Issue Decided in Previous Suit:

 Scenario: A sues B for possession of properties based on a sale deed. B argues that the sale
deed is fictitious, and the court upholds this plea, dismissing the case. Later, A sues B for
possession of other properties based on the same sale deed.

 Application of Res Judicata: The second suit is barred because the fictitious nature of the
sale deed was directly and substantially in issue in the first case, and it cannot be re-litigated.

c) . Interpretation of a Will – Binding on All Parties:

 Scenario: A sues B, C, and D. The court needs to interpret a will to resolve A's claim. The
court's decision on the will determines the rights of all defendants.

 Application of Res Judicata: The court’s decision on the interpretation of the will is binding
on all parties in any future lawsuit involving the same matter, ensuring consistency in
judgments.

d) Dismissal from Service – Constitutional Petitions:

 Scenario: A files a petition in a High Court under Article 226 challenging his dismissal from
service, but the petition is dismissed. A then files a fresh petition in the Supreme Court under
Article 32 or sues in a civil court.

 Application of Res Judicata: The second petition or suit is barred by res judicata because A
cannot relitigate the dismissal, as the issue was already decided.

e) . Joint Family Property – No Partition Yet:

 Scenario: A sues B for possession of property, claiming it was given to him during the
partition of joint family property. B argues that no partition occurred, and the court upholds
B’s argument, dismissing the suit. A later sues B for the partition of the joint family property.

 Application of Res Judicata: The second suit is not barred because the first case was about
possession based on an alleged partition, while the second suit seeks the partition itself,
which was not previously decided.

f) . Ownership in Tenant Eviction – Title Not in Issue:

 Scenario: A sues B and sub-tenant C for eviction, claiming to own the property. The suit is
decided in A's favor ex parte. Later, C sues A in a civil court regarding the ownership of the
property, and A claims res judicata.

 Application of Res Judicata: The second suit is not barred because the issue of title
(ownership) was not directly and substantially in issue in the eviction suit.

g) . Unregistered Partnership – Subsequent Suit Allowed:

 Scenario: A partnership firm sues B for Rs. 50,000, but the suit is dismissed because the firm
was not registered under the Indian Partnership Act. The firm then registers and files a fresh
suit on the same claim.

 Application of Res Judicata: The second suit is not barred by res judicata, as the dismissal of
the first suit was based on a technical defect (lack of registration), not on the merits of the
case.

h) . Dismissal from Service – Different Grounds:

 Scenario: A files a petition under Article 226 in a High Court for reinstatement in service,
which is dismissed due to disputed facts and availability of an alternative remedy. A then
files a suit in a civil court.
  Application of Res Judicata: The subsequent suit is not barred by res judicata because the
first petition was dismissed on procedural grounds, not on the merits of A’s claim for
reinstatement.

(6) EXTENT & APPLICABILITY

Section 11 of the CPC is not exhaustive. Since this doctrine is based on public policy it applies to all
the civil suits and apart from the letter of law, the doctrine has been extended and applied since long
in various other kinds of proceedings and situations by courts in England, India and other countries.

(7) RES JUDICATA AND RES SUB JUDICE

(i) Whereas res judicata applies to a matter adjudicated upon (res judicatum), res sub judice
applies to a matter pending trial (sub judice).
(ii) Res judicata bars the trail of a suit or an issue which has been decided in a former suit,
res sub judice bars trial of a suit which is pending decision in a previously instituted suit.

Conditions
It is not every matter decided in a former suit that will operate as res judicata in a subsequent suit. To
constitute a matter as res judicata under Section 11, the following conditions must be satisfied:
(I) The matter directly and substantially in issue in the subsequent suit or issue must be
the same matter which was directly and substantially in issue either actually in the
former suit
Subject Matter in issue
A decision of a competent court on a matter in issue may be res judicata in another
proceeding between the same parties; the "matter in issue" may be an issue of fact, an issue of
law, or one of mixed law and fact.
Mathura Prasad Bajoo Jaiwal Vs Dossibai
The expression "matter in issue" means the rights litigated between the parties, i.e. the facts
on which the right is claimed and the law applicable to the determination of that issue. Such
issue may be an issue of fact, issue of law or mixed issue of law and fact.

(II) The former suit must have been a suit between the same parties or between parties
under whom they or any of them claim.
 The second condition of res judicata is that the former suit must have been a suit between the
same parties or between the parties under whom they or any of them claim. when the parties
in the subsequent suit are different from the former suit, there is no res judicata.
⮚ A "party" is a person whose name appears on the record at the time of the decision.
⮚ A party may be a plaintiff or a defendant.

(III) Such parties must have been litigating under the same title in the former suit.

The third condition of res judicata is that the parties to the subsequent suit must have litigated
under the same title as in the former suit.
Mahadevappa somappa Vs Dharmappa Sanna
Same title means same capacity. Title refers to the capacity or interest of a party. Litigating
under the same title means that the demand should be of the same quality in the second suit as
was in the first suit. It has nothing to do with the cause of action on which he sues or is sued.

(IV) The court which decided the former suit must be a court competent to try the
subsequent suit or the suit in which such issue is subsequently raised.

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,
Pandurang Mahadeo Vs Annaji Balwant
Thus, the decision in a previous suit by a court, not competent to try the subsequent suit, will not
operate as res judicata. The principle behind this condition is sound one, namely, that the decision of
the court of limited jurisdiction ought not to be final and binding on a court of unlimited jurisdiction.
The expression "competent to try" means "competent to try the subsequent suit if brought at the time
the first suit was brought".

(V) The matter directly and substantially in issue in the subsequent suit must have been
heard and finally decided by the court in the former suit.

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.

⮚ The section requires that there should be a final decision on which the court must have
exercised its judicial mind.

Kushal Pal Vs Mohan Lal

 ⮚ In other words, the expression "heard and finally decided" means a matter on which the court
has exercised its judicial mind and has after argument and consideration come to a decision
on a contested matter. It is essential that it should have been heard and finally decided.

State of Maharashtra Vs National Construction Company

A matter can be said to have been heard and finally decided notwithstanding that the former suit was
disposed of

(i) ex parte; or

(ii) by failure to produce evidence (Order 17 Rule 3); or

(iii) by a decree on an award; or

(iv) by oath tendered under the Indian Oaths Act, 1873.

But if the suit is dismissed on a technical ground, such as non-joinder of necessary party, it would not
operate as res judicata.

Decision on merits - In order that a matter may be said to have been heard and finally decided, the
decision in the former suit must have been on merits.

Shivashankar Prasad Vs Baikunth Nath

Thus, if the former suit was dismissed by a court for want of jurisdiction, or for default of plaintiff's
appearance, or on the ground of non-joinder or misjoinder of parties, or on the ground that the suit
was not properly framed, or that it was premature, or that there was a technical defect, the decision not
being on merits, would not operate as res judicata in a subsequent suit.

EXPLANATION

Explanation I - Former suit:

Explanation I to Section 11 provides that the expression "former suit" shall denote a suit which has
been decided prior to the suit in question whether or not it was instituted prior thereto.

Sheodan Singh Vs Daryao Kunwar

It is not the date on which the suit is filed that matters but the date on which the suit is decided; so that
even if a suit was filed later, it will be a former suit within the meaning of Explanation I if it has been
decided earlier.
Explanation II.- Right of Appeal :-

Explanation II to Section 11 makes it clear that for the purpose of res judicata, the competence of the
court shall be determined irrespective of any provision as to a right of appeal from the decision of
such court. No doubt, one of the tests for application of the doctrine of res judicata is to ascertain
whether a party aggrieved could challenge the finding by filing an appeal.

Ramesh Chandra Vs Shiv Charan Dass

The question whether there is a bar of res judicata does not depend on the existence of a right of
appeal but on the question whether the same issue, under the circumstances mentioned in Section 11
of the Code, has been heard and finally decided.

Explanation III - Matter directly and substantially in issue:

A matter directly and substantially in issue in a former suit will operate as res judicata in a subsequent
suit.

⮚ "Directly" means directly, at once, immediately, without intervention.

⮚ "Substantially" means essentially, materially or in a substantial manner. It is something short

of certainty but indeed more than mere suspicion.

Krishna Chendra Vs Challa Ramanna

The question whether or not a matter is directly and substantially in issue would depend upon whether
a decision on such an issue would materially affect the decision of the suit. The question has to be
determined with reference to the plaint, written statement, issues framed and judgment. No rule of
universal application can be laid down and the question should be decided on the facts of each case.

Explanation IV - Matter constructively in issue

Explanation IV to Section 11 by a deeming provision lays down that any matter which might and
ought to have been made a ground of defence or attack in the former suit, but which has not been
made a ground of attack or defence, shall be deemed to have been a matter directly and substantially
in issue in such suit.

P.K Vijayan Vs Kamalakshi Amma

The principle underlying Explanation IV is that where the parties have had an opportunity of
controverting a matter, that should be taken to be the same thing as if the matter had been actually
controverted and decided. The object of Explanation IV is to compel the plaintiff or the defendant to
take all the grounds of attack or defence which were open to him.

Explanation V - Relief claimed but not granted:

Explanation V to Section 11 provides that if a relief is claimed in a suit, but is not expressly granted in
the decree, it will be deemed to have been refused and the matter in respect of which the relief is
claimed will be res judicata.

Mysore SRTC Vs Babajan Conductor

But this explanation applies only when the relief claimed is substantial relief, and the court is bound
to grant it. The same principle will apply where the decree is silent as to the relief claimed.

Explanation VI -Representative suit – Order 1 Rule 8

Explanation VI to section 11 deals with representative suit i.e suits instituted by or against a person in
his representative, as distinguished from individual capacity.

Raje Anandrao Vs Shamrao

This Explanation provides that where persons litigate bona fide in respect of a public right or of a
private right claimed in common for themselves and others, and all persons interested in such right
shall, for the purposes of Section 11, be deemed to claim under the persons so litigating.

Explanation VII - Execution proceedings:

Explanation VII specifically provides that the provisions of Section 11 will directly apply to execution
proceedings also.

Jai Narain Vs Kedar Nath

Prior to the addition of explanation VII to section 11, the provisions thereof did not in terms apply to
the execution proceedings, but the general principal of Res judicata were held to be applicable even to
execution proceedings.
Explanation VIII - Competent court:

The expression "competent to try" means "competent to try the subsequent suit if brought at the time
the first suit was brought".

Jeevantha Vs Hanumantha

In other words, the relevant point of time for deciding the question of competence of the court is the
date when the former suit was brought and not the date when the subsequent suit was filed.

EXCEPTIONS TO THE PLEA OF RES JUDICATA

Judgment in original suit obtained by the fraud – if a court thinks that the judgment of former suit
is obtained by the fraud, then the doctrine of the res judicata is not applied. – Satya Vs Teja Singh

A different cause of action – Section 11 will not be applied when there is a different cause of action
in the subsequent suits. The court cannot bar a subsequent suit if it contains the different cause of
action.

Waiver of a decree of Res Judicata – Decree of Res Judicata is a plea in the bar which party must
waive. If a party did not raise the plea of res judicata then the matter will be decided against him. It is
the duty of an opposite party to make the court aware about the adjudication of matter in former suit.
If a party fails to do so, the matter is decided against him.

Court not competent to decide – When the former suit is decided by the court who has no
jurisdiction to decide the matter then the doctrine of res judicata is not applied to the subsequent suit.

When there is a change in Law – When there is a change in the law and new laws bring new rights
to the parties then such rights are not barred by Section 11.

Jaisingh Vs Mamanchand

The cases must decided upon the law as it stands when judgment is pronounced and not upon what it
was at the date of previous suit the law having been altered in the meantime.