History and Development of the Code of Civil Procedure, 1908

I. The Pre-Codification Era (Before 1859)

● Dual Legal System: Before 1859, a chaotic and non-uniform system of civil
procedure existed in India under the British administration.
○ Presidency Towns: In Bombay, Calcutta, and Madras, the procedure of the
Crown's Supreme Courts was largely based on the English common law and
procedural rules.
○ Mofussil Areas (Rural/Provincial Areas): The Company's Adalats (courts)
followed a variety of regulations, circulars, and customary practices which
differed from one region to another.
● Lack of Uniformity: This dual system led to immense confusion, conflicting judicial
decisions, and uncertainty for litigants. There was an urgent need for a single,
uniform code to govern civil proceedings across British India.

II. The First Step Towards Codification: The Code of 1859

● The First Uniform Code: The first-ever comprehensive Code of Civil Procedure was
enacted in 1859.
● Objective: Its primary aim was to bring uniformity to the procedures followed in the
Mofussil courts.
● Key Limitation: This Code was not applicable to the Supreme Courts in the
Presidency Towns or the Presidency Small Cause Courts. This meant the problem of
a dual system, though reduced, was not completely eliminated. It was a significant
but incomplete reform.

III. The Intermediate Codes: The Codes of 1877 and 1882

● Need for a More Comprehensive Code: To overcome the limitations of the 1859
Code and consolidate civil law, a new Code was enacted in 1877.
● The Code of 1877: This code repealed the 1859 Code and several other related
enactments. It was more extensive in its application.
● The Code of 1882: The Code of 1877 was soon replaced by the Code of Civil
Procedure, 1882. This was essentially a consolidated and more refined version of
the 1877 Code. It was a well-drafted code but was found to be too rigid over time.

IV. The Enactment of the Present Code: The Code of Civil Procedure, 1908

● Problem with the 1882 Code: The 1882 Code was criticised for its rigidity. Any
minor procedural change required a formal amendment by the legislature, which was
a slow and cumbersome process.
● The Committee: A committee headed by Sir Earle Richards was appointed to
address this issue and draft a new code.
● The Genius of the 1908 Code - The Split Structure: The most significant
innovation of the 1908 Code is its unique structure, designed to provide both stability
and flexibility. It is divided into two parts:
1. The Body of the Code (The Sections):
 ■ Contains 158 Sections.
■ Lays down the fundamental, substantive principles regarding
jurisdiction, core principles of procedure, and powers of the court (e.g.,
Res Judicata, place of suing, appeals, reference, review, revision).
■ These are the core principles and can only be amended by the
Legislature. This provides rigidity and stability to the fundamental
tenets of civil procedure.
2. The First Schedule (The Orders and Rules):
■ Contains 51 Orders, each with multiple Rules.
■ Deals with the detailed, day-to-day "machinery" of a civil suit (e.g.,
format of a plaint, summons, written statement, discovery, framing of
issues, etc.).
■ These rules can be amended, annulled, or added to by the respective
High Courts (with previous approval) to meet local conditions and
needs. This provides immense flexibility.
● Objective of the 1908 Code: The preamble states its purpose is "to consolidate and
amend the laws relating to the procedure of the Courts of Civil Judicature."

V. Post-Independence Developments and Major Amendments

● Adaptation after Constitution: After the Constitution of India came into force in
1950, the CPC, 1908 was adapted to fit the new constitutional framework.
● Role of the Law Commission of India: The Law Commission of India, in its 14th,
27th, and 54th Reports, made extensive recommendations for reforming the Code
to ensure speedy justice and reduce litigation costs.
● The Landmark Amendment of 1976: Based on the recommendations of the 54th
Law Commission Report, a comprehensive amendment was passed. Key changes
included:
○ Making the doctrine of Res Judicata (Section 11) more effective.
○ Introducing the requirement of a "substantial question of law" for a Second
Appeal (Section 100).
○ Introducing provisions for legal aid to the poor.
○ Placing restrictions on the revisionary jurisdiction of the High Court (Section
115).
● The Amendments of 1999 and 2002:
○ Primary Goal: To tackle the issue of inordinate delays in the disposal of civil
cases. These amendments were influenced by the recommendations of the
Justice Malimath Committee Report.
○ Key Changes:
■ Time limit for filing the written statement made mandatory.
■ Restriction on the number of adjournments a party can seek.
■ Time limit for the delivery of judgments after the conclusion of
hearings.
■ Provisions for settling disputes through Alternate Dispute Resolution
(ADR) mechanisms were strengthened (Section 89).
Conclusion:

The history of the Civil Procedure Code in India is a story of evolution from a state of chaos
and non-uniformity to a structured, flexible, and dynamic legal framework. The 1908 Code,
with its brilliant division of substantive principles (Sections) and procedural rules (Orders),
has stood the test of time and continues to be the bedrock of civil justice administration in
India, constantly adapting through amendments to meet contemporary challenges.
Note on Subordination of Civil Courts under the CPC, 1908

1. The Principle of Hierarchy and Subordination (Section 3)

● The Code of Civil Procedure, 1908, establishes a clear hierarchy for civil courts to
ensure systematic and organized justice delivery.
● Section 3 of the CPC defines this subordination for the purpose of the Code. It
states:
○ The District Court is subordinate to the High Court.
○ Every Civil Court of a grade inferior to that of a District Court and every Court
of Small Causes is subordinate to the High Court and the District Court.

2. Classes of Civil Courts

● The CPC provides the procedure, but the actual establishment and constitution of
different classes of civil courts are typically governed by state-specific laws like the
various State Civil Courts Acts.
● Generally, the hierarchy of civil courts in a district is as follows (from lowest to
highest):
○ Court of Civil Judge (Junior Division) / Munsiff Court
○ Court of Civil Judge (Senior Division) / Subordinate Judge
○ Court of the District Judge (This is the principal Civil Court of original
jurisdiction in a district).
○ The High Court of the State.

3. Importance of the Hierarchy

The subordination of courts is crucial for the following procedural aspects:

● Pecuniary Jurisdiction (Section 6): The hierarchy determines which court can hear
a case based on its monetary value. For example, a Civil Judge (Junior Division) can
only try suits up to a certain financial limit, beyond which the case must be filed in a
Senior Division court or the District Court.
● Appellate Jurisdiction: The hierarchy defines the path for appeals. A decree
passed by a Civil Judge (Junior Division) is typically appealed before the District
Judge. An appeal from a decree of the District Court lies to the High Court.
● Transfer of Cases (Sections 22-24): A higher court has the power to transfer a case
from one subordinate court to another. The District Court can transfer a case within
its district, and the High Court can transfer a case anywhere within the state.
● Revisionary and Supervisory Powers: The High Court (under Section 115 of CPC)
and the District Court have powers to call for the records of subordinate courts to
ensure they have acted within their jurisdiction. The High Court also exercises
supervisory jurisdiction over all subordinate courts under Article 227 of the
Constitution of India.
Jurisdiction of Civil Courts

1. Meaning of Jurisdiction

● Jurisdiction (from Latin juris "law" + dictio "declaration") is the power and authority
of a court to hear, determine, and give a legally binding judgment on a case.
● It is the extent of the authority of a court to administer justice.
● A judgment passed by a court that does not have jurisdiction is a nullity (void) and
can be challenged at any stage, even in execution proceedings.

2. Types of Jurisdiction

The jurisdiction of a civil court is determined by four main factors:

● a) Territorial Jurisdiction (Sections 16-20):

○ This refers to the geographical limits of a court's authority. A court can only
try cases arising within the specific local area over which its power extends.
○ Rules for determination:
■ Suits related to Immovable Property (Section 16): The suit must be
filed in the court within whose local jurisdiction the property is situated.
This includes suits for partition, foreclosure, sale, redemption, or
determination of any right to or interest in the property.
■ Suits for Movable Property (Section 19): A suit for compensation for
wrong done to a person or to movable property can be filed either:
■ Where the wrong was committed.
■ Where the defendant resides, or carries on business, or
personally works for gain.
■ Other Suits (Section 20): All other civil suits (e.g., contract-related,
matrimonial) can be filed where:
■ The defendant resides, or carries on business, or personally
works for gain.
■ The cause of action, wholly or in part, arises.
● b) Pecuniary Jurisdiction (Section 6):
○ This refers to the monetary value of the suit. Courts are empowered to hear
cases up to a certain financial limit.
○ For example, a Civil Judge (Junior Division) might have jurisdiction for suits
up to ₹5 lakh, while a Civil Judge (Senior Division) might have unlimited
pecuniary jurisdiction.
○ This is determined by state-specific Civil Courts Acts. The valuation of the
suit is done by the plaintiff as per the Court Fees Act and the Suits
Valuation Act.
● c) Subject-Matter Jurisdiction:
○ This refers to the authority of a court to try a particular type of case.
Certain courts are specifically designated to hear certain types of matters.
○ Examples:
■ Family Courts for matrimonial disputes.
 ■ Rent Control Tribunals for landlord-tenant disputes.
■ Industrial Tribunals for labor disputes.
■ A civil court cannot hear a criminal case, and vice versa.
● d) Original and Appellate Jurisdiction:
○ Original Jurisdiction: The authority to hear a case in the first instance.
Most civil cases start in the Court of a Civil Judge (Junior or Senior Division).
○ Appellate Jurisdiction: The authority to hear an appeal from a decision of a
lower court. The District Court has appellate jurisdiction over the decisions of
Civil Judges, and the High Court has appellate jurisdiction over the decisions
of the District Court.

3. Issue of Jurisdiction as a Preliminary Issue (Order XIV, Rule 2)

● A preliminary issue is an issue that, if decided in favor of a party, would be sufficient

to dispose of the entire case or a significant part of it.
● Order XIV, Rule 2 states that if an issue of law relates to either:
1. The jurisdiction of the court, or
2. A bar to the suit created by any law for the time being in force, the court
may try that issue first, before settling other issues.
● This is done to save time and resources. If the court finds it has no jurisdiction,
there is no need to proceed with a lengthy trial on the merits of the case. For
example, if a suit is barred by the Limitation Act, the court can dismiss it on that
ground alone without hearing evidence on other facts.

4. Objections to Jurisdiction (Section 21)

● Section 21 lays down the principle that an objection to a court's jurisdiction must be
raised at the earliest possible opportunity.
● a) Objection to Territorial and Pecuniary Jurisdiction:
○ An objection to the place of suing (territorial jurisdiction) or the pecuniary
jurisdiction of a court must be taken in the court of the first instance at the
earliest possible opportunity, and in all cases, at or before the settlement of
issues.
○ If the objection is not raised at this stage, it is considered waived, and it
cannot be raised later in an appellate or revisional court.
○ An appellate court will not entertain such an objection unless there has been
a consequent failure of justice.
● b) Objection to Subject-Matter Jurisdiction:
○ An objection regarding the competence of a court with reference to the
subject-matter of the suit is a fundamental issue.
○ Such a defect cannot be cured by consent or waiver.
○ An objection to the subject-matter jurisdiction can be raised at any stage of
the proceedings, including in appeal, revision, or even in execution
proceedings. A decree passed by a court without subject-matter jurisdiction is
void.

5. Bar to Jurisdiction (Section 9)

 ● Section 9 is the foundational provision that grants jurisdiction to civil courts. It states
that civil courts shall have jurisdiction to try all suits of a civil nature, except suits of
which their cognizance is either expressly or impliedly barred.
● a) Express Bar:
○ A suit is "expressly barred" when a specific statute explicitly takes away the
jurisdiction of the civil court.
○ Examples:
■ Matters under the Rent Control Act are to be decided by Rent
Tribunals.
■ Disputes under the Industrial Disputes Act are to be decided by
Industrial Tribunals or Labour Courts.
■ Matters under the Administrative Tribunals Act are to be decided by
the relevant Administrative Tribunal.
● b) Implied Bar:
○ A suit is "impliedly barred" when a statute creates a special right or liability
and also provides a specific remedy or machinery for its enforcement, without
explicitly stating that the civil court's jurisdiction is barred.
○ The principle is that where a special tribunal is created by law to deal with
specific matters, the jurisdiction of the civil court is ousted by implication.
○ This is often based on grounds of public policy.
○ However, even when jurisdiction is barred, a civil court can still intervene if the
tribunal or authority:
■ Acts in violation of the principles of natural justice.
■ Does not follow the fundamental provisions of the statute.
■ Acts in an arbitrary or ultra vires manner.
■ The challenge is to the constitutionality of the statutory provision itself.

Place of Suing (Sections 15-20, CPC)

This topic deals with Territorial Jurisdiction, which determines the appropriate
geographical location or court where a suit must be filed.

1. Foundational Rule (Section 15)

● Lowest Grade Court: Every suit must be instituted in the Court of the lowest grade
competent to try it.
● Purpose: This rule is designed to prevent higher courts from being overburdened
and to ensure a structured flow of litigation. It is read along with the rules of
pecuniary (financial) jurisdiction.

2. Suits related to Immovable Property (Section 16)

● General Rule: Suits concerning rights or interests in immovable property must be

filed in the court within whose local jurisdiction the property is situated.
● Types of Suits Covered:
○ For recovery of immovable property.
 ○ For partition of immovable property.
○ For foreclosure, sale, or redemption in the case of a mortgage.
○ For determination of any other right to or interest in immovable property.
○ For compensation for wrong (e.g., trespass) to immovable property.
● Important Exception (Proviso): If the relief sought can be entirely obtained through
the personal obedience of the defendant, the suit may be filed either:
○ Where the property is situated, OR
○ Where the defendant resides, carries on business, or personally works for
gain.
○ Example: A suit for specific performance of a contract to sell a house in Pune
against a defendant who lives in Mumbai can be filed either in Pune or
Mumbai.

3. Property within Jurisdiction of Different Courts (Section 17)

● Scenario: This applies when a single piece of immovable property is situated within
the local limits of the jurisdiction of two or more courts.
● Rule: The plaintiff has the option to file the suit in any one of those courts, provided
that the court chosen has pecuniary jurisdiction over the entire claim.
○ Example: A large agricultural estate spans across the boundary of District A
and District B. A suit for partition can be filed in the competent court of either
District A or District B.

4. Where Jurisdiction is Uncertain (Section 18)

● Scenario: This applies when there is genuine uncertainty about the local limits of
jurisdiction of two or more courts with respect to a property.
● Rule: Any one of the courts may, if satisfied there is a ground for uncertainty, record
a statement to that effect and proceed to hear the suit. The resulting decree will be
valid.

5. Suits for Wrongs to Person or Movable Property (Section 19)

● Scope: This section applies to tortious claims, such as suits for compensation for
defamation, negligence, assault, or damage to goods.
● Plaintiff's Choice: The plaintiff has the option to file the suit in a court within whose
local jurisdiction:
○ The wrong was committed, OR
○ The defendant resides, carries on business, or personally works for gain.

6. Residuary Rule - Other Suits (Section 20)

● Scope: This is a general, catch-all provision that applies to all suits not covered by
Sections 16 to 19 (e.g., suits for breach of contract, matrimonial relief, recovery of
money).
● Plaintiff's Choice: The suit may be instituted in a court within whose local
jurisdiction:
○ The defendant (or any of the defendants, with leave of the court) resides,
carries on business, or personally works for gain.
 ○ OR The cause of action, wholly or in part, arises.
● "Cause of Action" Explained: This refers to the bundle of essential facts that a
plaintiff must prove to succeed. For a contract suit, the cause of action can arise
where the contract was made, where it was to be performed, or where the breach
occurred.

Institution of Suits (Section 26 & Order IV)

This topic deals with the formal procedure for commencing a civil suit.

1. How a Suit Begins (Section 26)

● By Plaint: Every suit must be instituted by the presentation of a plaint.

● Affidavit Requirement: A crucial amendment mandates that the facts stated in
every plaint must be proved by an affidavit. This is to ensure the authenticity of the
claims and discourage false or frivolous litigation.

2. Procedural Formalities (Order IV)

● Rule 1: Presentation of Plaint:

○ A suit is officially commenced by presenting the plaint in duplicate to the
court or its designated officer.
○ The plaint must comply with the rules of Order VI (Pleadings Generally) and
Order VII (Plaint). This includes details like the names of parties, the cause
of action, the relief claimed, etc.
○ A suit is not considered "duly instituted" if these requirements are not met.
● Rule 2: Register of Suits:
○ Once the court accepts the plaint, its particulars are entered into a book
called the Register of Civil Suits.
○ Each suit is assigned a serial number for the year, marking its official
admission and commencement of proceedings.

Summary of the Process:

1. Drafting: The plaintiff drafts a Plaint (as per Orders VI & VII) and an Affidavit.
2. Jurisdiction Check: The plaintiff determines the correct court based on Place of
Suing (Sections 15-20) and pecuniary jurisdiction.
3. Filing: The plaintiff presents the Plaint in duplicate along with the affidavit and
requisite court fees.
4. Scrutiny: The court's registry scrutinizes the plaint for defects.
5. Registration: If the plaint is in order, it is registered, and the suit is officially
instituted. The next step is the issuance of a summons to the defendant.
Res Judicata and Res Subjudice

In the realm of civil procedure, the principles of Res Judicata and Res Subjudice are
fundamental concepts aimed at ensuring the efficient and final adjudication of legal disputes.
These doctrines, enshrined in the Code of Civil Procedure, 1908 (CPC), are crucial for
preventing the multiplicity of proceedings and ensuring that judicial decisions are respected.
For students appearing for the Savitribai Phule Pune University (SPPU) examinations, a
clear understanding of these principles, their conditions, and the distinctions between them
is essential.

Res Subjudice (Section 10, CPC) - The Rule of "Stay of Suit"

The doctrine of Res Subjudice, which translates from Latin to "a matter under judgment," is
designed to prevent the simultaneous trial of two parallel suits on the same matter between
the same parties.

Objective:
 ● To prevent courts of concurrent jurisdiction from simultaneously entertaining and
adjudicating upon two parallel litigations in respect of the same cause of action, the
same subject-matter, and the same relief.
● To avoid conflicting decisions from different courts on the same issue.
● To prevent the wastage of judicial resources and harassment of the defendant.

Essential Conditions for Application: For the doctrine of Res Subjudice to apply, the
following conditions must be met:

1. Two Suits: There must be two suits, one previously instituted and another
subsequently filed.
2. Matter in Issue: The matter in issue in the subsequent suit must be directly and
substantially the same as in the previously instituted suit.
3. Same Parties: The parties in both suits must be the same or parties under whom
they or any of them claim.
4. Same Title: The parties must be litigating under the same title in both the suits.
5. Pending Suit: The previously instituted suit must be pending in the same court in
which the subsequent suit is brought, or in any other court in India having jurisdiction
to grant the relief claimed.
6. Competent Court: The court in which the previous suit is instituted must have
jurisdiction to grant the relief claimed in the subsequent suit.

Important Points to Note:

● Section 10 of the CPC mandates a stay of the trial of the subsequent suit; it does not
bar the institution of the suit.
● The court can pass interim orders, such as injunctions or the appointment of a
receiver, in the subsequent suit.
● The pendency of a suit in a foreign court does not preclude the courts in India from
trying a suit founded on the same cause of action.

Landmark Judgment:

● Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd.

(1998): This case clarified that the object of Section 10 is to prevent courts of
concurrent jurisdiction from simultaneously trying two parallel suits in respect of the
same matter in issue.

Res Judicata (Section 11, CPC)

Res Judicata, a Latin term meaning "a thing decided," is a doctrine that bars the re-litigation
of an issue that has already been finally decided by a competent court between the same
parties. This principle is based on the maxims:

● Nemo debet bis vexari pro una et eadem causa (No one should be vexed twice for
the same cause).
● Interest reipublicae ut sit finis litium (It is in the interest of the State that there should
be an end to litigation).
● Res judicata pro veritate accipitur (A judicial decision must be accepted as correct).
Objective:

● To bring finality to litigation.

● To prevent the losing party from re-agitating the same issues.
● To prevent the abuse of the process of the court.
● To promote judicial economy.

Essential Conditions for Application:

1. Matter Directly and Substantially in Issue: The matter in the subsequent suit must
have been directly and substantially in issue in the former suit.
2. Same Parties: The former and subsequent suits must be between the same parties
or persons claiming under them.
3. Same Title: The parties must be litigating under the same title in both suits.
4. Competent Court: The court that decided the former suit must have been a court of
competent jurisdiction to try the subsequent suit.
5. Heard and Finally Decided: The matter in the former suit must have been heard
and finally decided by the court.

Constructive Res Judicata (Explanation IV to Section 11): This is a crucial aspect of the
doctrine. It provides that any matter which might and ought to have been made a ground of
defence or attack in the former suit shall be deemed to have been a matter directly and
substantially in issue in such suit. This prevents a party from raising new pleas in a
subsequent suit which they could have raised in the former one.

Landmark Judgments:

● Daryao v. State of U.P. (1961): The Supreme Court held that the principle of Res
Judicata is of universal application and it applies to writ petitions filed under Article 32
and Article 226 of the Constitution of India.
● Satyadhyan Ghosal v. Deorajin Debi (1960): The Supreme Court elaborated on the
principles of res judicata and its application at different stages of the same
proceeding.
Parties to a Suit: Joinder, Mis-joinder & Non-joinder

A fundamental aspect of any civil suit is identifying the correct parties who are to be part of
the litigation. The Code of Civil Procedure, 1908 (CPC), under Order I, lays down
comprehensive rules regarding who can be a party, when multiple parties can join together,
and the consequences of improperly joining or failing to join parties. These rules are
designed to ensure fair and conclusive adjudication while preventing multiplicity of
proceedings.

Parties to a Suit (General)

For a person to be a party to a suit, they must be either the plaintiff (the person who files the
suit) or the defendant (the person against whom the suit is filed). Parties can be categorized
into two main types:

1. Necessary Party:
○ A necessary party is a person in whose absence no effective decree or order
can be passed by the court.
○ Their presence is indispensable for the adjudication of the dispute.
○ If a necessary party is not joined, the suit is liable to be dismissed for
non-joinder.
○ Example: In a suit for partition of family property, all co-sharers (coparceners)
are necessary parties.
2. Proper Party:
○ A proper party is a person whose presence is not essential for passing an
effective decree but is required for a complete and final decision on the
questions involved in the suit.
○ Their presence enables the court to adjudicate more "effectually and
completely."
○ The non-joinder of a proper party is not fatal to the suit.
○ Example: In a suit for possession of a property filed by the landlord against
the tenant, the sub-tenant may be a proper party.

Landmark Judgment:
 ● Kasturi v. Iyyamperumal (2005): The Supreme Court clearly distinguished between
a necessary party and a proper party, emphasizing that a person who has a direct
and legal interest in the controversy is a necessary party.

Joinder of Parties

Joinder means joining together several persons as plaintiffs or defendants in a single suit.
This is permitted to avoid multiple lawsuits concerning the same transaction or series of
transactions.

1. Joinder of Plaintiffs (Order I, Rule 1)

All persons may be joined in one suit as plaintiffs where:

● (a) The right to relief arises out of the same act or transaction or series of acts or
transactions.
● (b) If such persons brought separate suits, any common question of law or fact
would arise.

Objective: To prevent multiple trials over the same subject matter, saving the court's time
and avoiding potential conflicting decisions.

2. Joinder of Defendants (Order I, Rule 3)

All persons may be joined in one suit as defendants where:

● (a) The right to relief arises out of the same act or transaction or series of acts or
transactions.
● (b) If separate suits were brought against such persons, any common question of
law or fact would arise.

Important Point: It is not necessary that every defendant be interested in all the reliefs
claimed in the suit.

Mis-joinder and Non-joinder of Parties (Order I, Rule 9)

This rule encapsulates a fundamental principle of procedural law: "No suit shall be
defeated by reason of the mis-joinder or non-joinder of parties."

1. Mis-joinder of Parties

● Meaning: Mis-joinder occurs when two or more persons are joined together as
plaintiffs or defendants in a suit improperly, i.e., when the conditions laid down in
Order I, Rules 1 and 3 are not satisfied. It means a party who ought not to have been
joined has been joined.
● Consequence:
 ○ The suit is not dismissed.
○ It is merely a procedural irregularity.
○ The court will deal with the matter in controversy so far as regards the rights
and interests of the parties actually before it.
○ The name of the improperly joined party may be struck out by the court under
Order I, Rule 10(2).

2. Non-joinder of Parties

● Meaning: Non-joinder occurs when a person who is a necessary or proper party to a

suit has not been included as a party.
● Consequence: The consequence depends on whether the non-joined party was a
'necessary' party or a 'proper' party.
○ Non-joinder of a Proper Party: This is not a fatal defect. The court may
proceed with the suit and adjudicate upon the rights of the parties on record.
○ Non-joinder of a Necessary Party: This is a fatal defect. If a necessary
party is not joined, no effective decree can be passed. The court may dismiss
the suit if the plaintiff, after being given an opportunity, fails to implead the
necessary party.

Court's Power to Add, Strike Out, and Substitute Parties (Order I, Rule
10)

This rule grants wide discretionary powers to the court to ensure that the real matter in
dispute is adjudicated.

● Striking out or Adding Parties (Order I, Rule 10(2)):

○ The court may, at any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear to the court to
be just:
■ Order that the name of any party improperly joined (mis-joinder) be
struck out.
■ Order that the name of any person who ought to have been joined
(necessary party) or whose presence is necessary for a complete
adjudication (proper party) be added.
● Substitution of Parties: The court can also substitute a party, for instance, in case
of a bona fide mistake where a suit is filed in the name of a wrong person as plaintiff.

Key Considerations for the Court:

● The court must act in the interest of justice.

● The application for adding or striking out a party should be made at the earliest
opportunity to avoid delays.
● Adding a party cannot be used to introduce a new cause of action that changes the
nature of the suit.
Recognised Agents and Pleaders (Order III, CPC) and Effect of Death,
Marriage, and Insolvency (Order XXII, CPC)

This section covers two distinct but important procedural aspects under the Code of Civil
Procedure, 1908. Order III deals with the representation of parties in a suit, while Order XXII
outlines the procedure to be followed when the legal status of a party changes during the
pendency of a suit.

Part 1: Recognised Agents and Pleaders (Order III, CPC)

In civil litigation, parties are not always required to appear in person before the court. They
can be represented by recognised agents or pleaders. Order III of the CPC governs this
aspect of representation.

1. Appearances, etc., may be in person, by recognised agent or by pleader (Order III,

Rule 1)

● A party to a suit may appear, make an application, or do any act in or to any court,
either:
○ In person.
○ By a recognised agent.
○ By a pleader (Advocate).

2. Recognised Agents (Order III, Rule 2)

The recognised agents of parties by whom such appearances, applications, and acts may be
made or done are:

● Persons holding powers of attorney: Any person who holds a valid power of
attorney authorizing them to act on behalf of a party.
● Persons carrying on trade or business: In suits related to that trade or business,
for parties not residing within the local jurisdiction of the court, persons carrying on
that business in their names are considered recognised agents.

3. Service of process on recognised agent (Order III, Rule 3)

● Service of any process (e.g., summons) on a recognised agent is as effective as if it

were served on the party in person, unless the court directs otherwise.

4. Appointment of Pleader (Order III, Rule 4)

● Vakalatnama: No pleader can act for any person in any court unless they have been
appointed by a document in writing signed by the person or by their recognised
agent. This document is known as the 'Vakalatnama' or 'Vakilpatra'.
● Filing: The Vakalatnama must be filed in court.
● Duration: The appointment of a pleader continues until:
○ The determination of all proceedings in the suit.
○ The client or the pleader dies.
○ The client or the pleader withdraws from the case with the leave of the court.
5. Service of process on pleader (Order III, Rule 5)

● Service of any process on a pleader is presumed to be duly communicated to the

party they represent.

Part 2: Effect of Death, Marriage, and Insolvency of Parties (Order XXII,

CPC)

A suit does not necessarily end with the death, marriage, or insolvency of a party. Order XXII
provides the procedure for the continuation of the suit by or against the legal representatives
of the deceased, the newly married party, or the receiver in case of insolvency.

The Principle of actio personalis moritur cum persona

This Latin maxim means "a personal right of action dies with the person." The rules in Order
XXII are an exception to this maxim. If the right to sue survives, the suit does not abate
(end).

● Survival of Right to Sue: The right to sue survives in most cases involving property,
contracts, or other civil rights. It does not survive in cases of a purely personal
nature, such as suits for defamation, assault, or other personal injuries.

1. Death of Parties (Order XXII, Rules 1, 2, 3, and 4)

● No abatement if right to sue survives (Rule 1): The death of a plaintiff or

defendant shall not cause the suit to abate if the right to sue survives.
● Procedure where one of several plaintiffs or defendants dies and right to sue
survives (Rule 2):
○ If one of the several plaintiffs or defendants dies, and the right to sue survives
to the surviving plaintiff(s) alone, or against the surviving defendant(s) alone,
the court shall make an entry to that effect and the suit shall proceed.
● Procedure in case of death of one of several plaintiffs or of sole plaintiff (Rule
3):
○ If a sole plaintiff or one of the plaintiffs dies and the right to sue survives, an
application must be made to the court to bring the legal representatives (LRs)
of the deceased plaintiff on record.
○ Time Limit: This application must be made within 90 days from the date of
death.
○ Consequence of Failure: If no application is made within the prescribed
time, the suit shall abate so far as the deceased plaintiff is concerned.
● Procedure in case of death of one of several defendants or of sole defendant
(Rule 4):
○ If a sole defendant or one of the defendants dies and the right to sue
survives, an application must be made to the court to bring the legal
representatives (LRs) of the deceased defendant on record.
○ Time Limit: This application must be made within 90 days from the date of
death.
 ○ Consequence of Failure: If no application is made within the prescribed
time, the suit shall abate as against the deceased defendant.

2. Marriage of a Female Party (Order XXII, Rule 7)

● The marriage of a female plaintiff or defendant shall not cause the suit to abate.
● The suit can be continued by or against her, and a decree can be passed.
● However, if a decree is passed against a married woman, it can only be executed
against her separate property.

3. Insolvency of a Party (Order XXII, Rule 8)

● The insolvency of a plaintiff shall not cause the suit to abate, unless the Official
Assignee or Receiver declines to continue the suit or fails to provide security for
costs as ordered by the court.
● If the Official Assignee or Receiver neglects or refuses to continue the suit, the court
may, on the application of the defendant, dismiss the suit.

Abatement and Setting Aside Abatement (Order XXII, Rule 9)

● Effect of Abatement: When a suit abates, no fresh suit can be brought on the same
cause of action.
● Setting Aside Abatement: The plaintiff or the person claiming to be the legal
representative of a deceased plaintiff can apply for an order to set aside the
abatement.
● Sufficient Cause: The court will set aside the abatement if it is proved that the
applicant was prevented by any "sufficient cause" from continuing the suit (e.g.,
lack of knowledge of the death).
● Time Limit for Setting Aside: An application to set aside abatement must be made
within 60 days of the date of abatement.

Frame of Suit and Joinder of Causes of Action

This section covers the fundamental principles governing how a civil suit must be structured.
The rules, primarily contained in Order II of the Code of Civil Procedure, 1908, are
designed to ensure that litigation is comprehensive, efficient, and conclusive, thereby
preventing future litigation on the same matter.

1. Frame of Suit (Order II, Rule 1)

This rule lays down the foundational principle for structuring a lawsuit.

● Principle: Every suit must be framed, as far as practicable, to afford grounds for a
final decision upon the subjects in dispute and to prevent further litigation
concerning them.
 ● Objective:
○ To ensure completeness and finality in litigation.
○ To avoid multiplicity of suits between the same parties regarding the same
subject matter.
● In essence: A plaintiff should bring forward their entire case and all grounds of
dispute related to the subject matter in a single suit.

2. Suit to Include the Whole Claim (Order II, Rule 2)

This is one of the most critical rules regarding the framing of a suit. It mandates that a
plaintiff must sue for all the reliefs they are entitled to in respect of a single cause of action.

● Core Principle: Every suit must include the whole of the claim which the plaintiff is
entitled to make in respect of the cause of action.
● Key Aspects of the Rule:
○ Omission of a Claim: If a plaintiff omits to sue for any portion of their claim,
they cannot afterwards sue for the portion so omitted. This is a bar on future
litigation for the same cause of action.
○ Relinquishment of a Claim: A plaintiff may intentionally relinquish (give up)
any portion of their claim to bring the suit within the jurisdiction of a particular
court. However, if they do so, they cannot subsequently sue for the
relinquished portion.
○ Splitting of Claims/Reliefs: A person entitled to more than one relief in
respect of the same cause of action may sue for all or any of such reliefs.
However, if they omit to sue for any relief (without the leave of the court), they
shall not afterwards sue for the relief so omitted.
● "Cause of Action" is Key: This rule applies only when the cause of action in the first
and second suit is the same. A cause of action is the bundle of essential facts which
a plaintiff must prove to get a judgment.
● Objective:
○ To prevent the splitting of a single cause of action into multiple lawsuits.
○ To protect the defendant from being harassed multiple times for the same
subject matter.
● Example:
○ 'A' rents a house to 'B' for a year at ₹10,000 per month. 'B' does not pay rent
for the entire year (12 months). The non-payment of rent for the whole year
constitutes a single cause of action.
○ If 'A' sues 'B' only for the rent of the first 6 months, 'A' cannot later file another
suit for the remaining 6 months' rent, as he has omitted a part of his claim
arising from the same cause of action.

3. Joinder of Causes of Action (Order II, Rule 3)

This rule provides for the joining of multiple causes of action in a single suit by a plaintiff
against the same defendant.

● General Rule: A plaintiff may unite in the same suit several causes of action against
the same defendant, or the same defendants jointly.
 ● Conditions for Joinder:
○ Same Parties: The parties (plaintiffs and defendants) must be the same.
○ Court Jurisdiction: The court must have jurisdiction to try all the causes of
action.
● Example:
○ 'A' can sue 'B' in a single suit for:
■ (i) recovery of a loan,
■ (ii) breach of a separate contract, and
■ (iii) damages for defamation.
○ These are three different causes of action, but they can be joined in one suit
as the plaintiff ('A') and defendant ('B') are the same.
● Distinction:
○ Joinder of Parties (Order I): Deals with who can be joined as plaintiffs or
defendants.
○ Joinder of Causes of Action (Order II): Deals with what claims can be
joined in a single suit.

4. Misjoinder of Causes of Action and Court's Power

● What is Misjoinder? When different causes of action are joined in a suit contrary to
the rules, it is called misjoinder of causes of action.
● Power of Court to Order Separate Trials (Order II, Rule 6):
○ If the court finds that the joinder of causes of action in one suit may
embarrass or delay the trial or is otherwise inconvenient, it may order
separate trials or make any other order as may be expedient.
○ This is a discretionary power of the court aimed at ensuring a fair and efficient
trial.
● Objection as to Misjoinder (Order II, Rule 7):
○ Any objection regarding the misjoinder of causes of action must be taken at
the earliest possible opportunity.
○ In any case, it must be raised at or before the settlement of issues.
○ If the objection is not raised at this stage, it is deemed to have been waived.

5. Bar of Suit on Same Cause of Action (Connection between Order II,

Rule 2 and Section 11)

● The rule in Order II, Rule 2 acts as a bar to a subsequent suit on the same cause of
action. It prevents a plaintiff from splitting their claims.
● This principle is closely related to, but distinct from, Res Judicata (Section 11).
○ Order II, Rule 2: Applies when a portion of the claim or relief was omitted in
a former suit which has been filed. The second suit is barred even if the first
suit is still pending.
○ Res Judicata (Section 11): Applies when a matter has been heard and
finally decided by a competent court. It bars the trial of a subsequent suit on
the same matter.
● Both rules aim to achieve the same goal: to prevent multiplicity of proceedings and
ensure finality in litigation.