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1) The Code Of Civil Procedure 1908

Historical Background And Scheme Of Civil Procedure Code 1908
Before 1859, there was no uniform codified law relating to procedure of civil
courts in India. In those days the crown courts at presidency towns and the
provincial courts at mofussils were governed by the different systems of civil
procedures by certain rules, regulations and special acts as, applicable to
them from time to time.
For the first time in 1859, uniform code of civil procedure was introduced
with passing of the Civil Procedure Code (Act/VIII of 1859), but it did not
serve the purpose since it was not applicable to the supreme courts (Crown
Courts under the Royal Charter) and Sadar Diwani Adalats (Principal Courts
under the Judicial Plan by the Governor General). After the passing of Indian
High Courts Act, 1861, the Supreme courts and Sadar Adalats were
abolished as in their place High Court were established in their place at
Madras, Bombay and Calcutta and the code of 1859 was made applicable to
high courts.
The code of 1859 was amended from time to time and was replaced with the
passing of Code of Civil Procedure 1877. The Code of 1877 also was
amended in 1878 and 1879. In 1882, the third Code of Civil Procedure was
enacted. The Code of Civil procedure, 1882 also was amended several times
and ultimately the present Code of Civil Procedure, 1908 was passed
overshadowing the defects of the Code of 1882.
Meaning and Objects:
The law relating to the procedure of civil courts is regulated/ governed by
the Code of Civil Procedure, 1908, the word 'Code' literally means, a
systematic collection of statutes, body of law so arranged as to avoid
inconsistency and overlapping.
1. The main object of Code of Civil Procedure is to consolidate and amend
the law relating to the procedure of civil courts in India.
2. As such, it was enshrined in the preamble of the Code that it was
enacted to consolidate and amend the laws relating to the procedure to the
followed in court
3. The civil courts having civil jurisdiction in India, it regulated the action
in civil courts and the parties before it to the day of realization of its formity
i.e. the execution of the decree and order
4. In simple words, the aim of procedure law is to implement the
principles of substantive law. It ensure fair justice by enforcing the rights
and liability of the citizens.
Extent and application:
The Code of civil Procedure is passed in 1908 and come into force from 1st
January 1909. The code extent to whole of India, except: the state of
Nagaland and tribal areas; provided that the state government concerned
may, be notification in the official gazette, extend the provision of this code
or any of them to the whole or part of the state of Nagaland or such Tribal
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areas, as the case may be with such supplemental, incidental or

consequential notifications as may be specified in the notification.
Scope of the Code:
The code is exhaustive on the matters specifically dealt with by it. However,
it is not exhaustive on the points not specifically dealt with therein. The
legislature is incapable of contemplating all the possible circumstances which
may arise in future litigation and consequently for providing procedure for
them. With regard to those matters , the court has inherent power to act
according to the principles of justice, equity and good conscience.
The Code specifically provides that:
Nothing in this Code shall be deemed to limit or otherwise affect the inherent
power to the court to make such orders as may be necessary for the ends of
justice or to prevent abuse of the process of the courts.
The code is the general law. It does not affect the local or special law in
force. In the event of any conflict between the Code and special law, the
special law would be prevail. However the provision of the Code would
prevail if the local or special law is silent.
Scheme of the Code: the code of Civil Procedure comprises of two
parts:

i.The body of the Code and;

ii.The Schedule.
The body of the code containing 158 sections divide into 12 parts forms the
first part. The second part containing the rules and orders form the
schedule. The first part i.e. the body lays down the principles relating to
powers of the courts, while the second part i.e. the schedule provides for the
procedure, method, manner and mode in which the jurisdiction of the courts
may be exercised. Originally, there were five schedules I, II, III, IV and V.
but the Schedule II, III, IV and V were replaced by the subsequent
amendments of the Code. The first schedule contains 51 orders. Each order
contains rules.
The number of rules vary from order to order. At the end of the rules, there
are 8 appendices relating to Forms/Model Formats viz.

a. Pleading (plaint and written statement)

b. Process
c. Discovery, Inspection and Admission
d. Decree
e. Execution
f. Supplemental proceedings
g. Appeal, Reference and Review and
h. Miscellaneous.
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Salient features of the Code: there are following features:

1. The Code of Civil Procedure, 1908 is one of the most important
branches of the procedural law and regulates the procedure to be adopted in
all civil courts having jurisdiction in India. It came into force from 1st
January 1909.
2. It comprises of two parts viz. i) the body and; ii) the schedule. The
body contains 158 sections divided into 12 parts constitutes the first part,
while the schedule containing rules and orders form the second part. The
schedule contains 51 orders. Each order contains rules.
3. The Code is a territorial law. It extends to the whole of India except;
the state of Nagaland and tribal areas; provided that the state government
\concerned may, be notification in the official gazette, extend the provision
of this code or any of them to the whole or part of the state of Nagaland.
4. It is significant to note that the Code made the procedure in Civil
Courts very simple for enforcement of rights, liabilities and obligations of the
citizens. In other words, the code provides mechanism for enforcement of
substantive rights.
5. The code is the general law applicable to the proceedings of all civil
courts without prejudice to the local or special law in force. In case of
conflict, the special will prevail over the code. However, the provisions of the
court shall apply if the local or special law is silent.
6. The Code has been amended several times. It was amended more
than 30 times during 1909- 1976. Recently it was amended in 1999
and 2002 vide the Court of Civil Procedure (Amendment) Act, 1999 and the
Code of Civil Procedure (Amendment) Act, 2002.
The acts of 1999 and 2002 i.e. the Code of Civil Procedure Amendment
(Act), 1999 and the Code of Civil Procedure (Amendment) Act, 2002 came
into force on the same day. The 1st July 2002.
The main object of the Acts is to ensure fair justice by eliminating
inordinate delay in disposal of the cases:
1. Summons served to the defendant within 30 days from the date of
filing of the suit.
2. The defendant through summons is required to appear before the
Court and answer the claim and submit file written statement 30 days.
However, the Court may extend the period of filing written statement upto
90 days.
3. The penalty for default/ denial/non-appearance in response to the
summon has been enhanced upto Rs. 5,000/-
4. If the decree for the payment of money is not executed, the judgment
debtor may be detained in civil prison for a period not exceeding three
months if the decree is for the payment of a sum exceeding Rs. 5,000/-. The
period of such detention is upto six months if the amount payable is above
2,000/- and below 5,000/- and no order for the detention in the civil prison
in respect of the default upto Rs. 2,000/-.
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5. With regard to attachment in execution of a decree, salary upto

1,000/- and two thirds of the remaining salary beyond Rs. 1,000/- shall not
be liable to attachment.
6. Provision has been made for settlements of disputes outside the
Courts viz. Arbitration, conciliation, Mediation, Lok adalats etc.
7. Provisions has been made to provide compensation upto Rs. 50,000/-
to the defendant for the expenses incurred, loss or injury included the loss of
reputation caused to him against his arrest or attachment of his property.
8. With regard to provision for the appeal:

i.No appeal shall lie against the decree or order if the subject matter of the
original suit does not exceed Rs. 1,000/-
ii.Where an appeal is heard and decided by a single judge of a High Court from
an original or appellate decree or order, no further appeal shall be lie.
iii.No second appeal shall lie from any decree if the subject matter of the
original suit is for recovery of money not exceeding Rs. 25,000/-.
9. The court may adjourn the framing of issues for a period not
exceeding seven days, while examining the witnesses or examining the
documents presented before the court.
10. A party to the suit shall not be granted more than three adjournments
during the hearing of the suit.
11. When a judge is not pronounced at once, the Court shall endeavour to
pronounce the judgment within 30 days from the date of conclusion of the
hearing. However, in certain exceptional or under extraordinary
circumstances, the court may fix a day beyond 30 days but before 60 days
from the date of conclusion of the hearing.
2) Definitions (Sec. 2) Decree, Judgment, Order

Decree
The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908.
A decree always follows judgement and is based upon a judgement. It is
divided into five types unlike judgement which is final in itself. A decree may
be final or preliminary. It is a formal declaration or adjudication and is
conclusive in nature. A decree is of three kinds namely, preliminary decree,
final decree and partly preliminary & partly final. A decree may be delivered
with an order. The decree contains the outcome of the suit and conclusively
determines the rights of the parties with regard to the issues in dispute in
the suit. After passing the decree, the suit stands disposed of since the
rights of the parties are finally determined by the court.
Deemed Decree
A decree shall be deemed to include the rejection of a plaint and any
question within Section 144 of Code of Civil Procedure,1908 but shall not
include:
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Any such sentence(adjudication) from which it appears that an appeal lies as

an appeal from an order, or any such order of discharge(dismissal) of
default.
Kinds of Decrees
According to Section 2(2) of the Code of Civil Procedure,1908 decrees are
divided into three categories:
Preliminary Decree
In general sense, the word preliminary means preparation for the main
matter, initial, introductory, preparatory. In a legal sense, a preliminary
decree is a decree where further proceedings have to take place before the
suit can be completely disposed of. It decides the rights of the parties in
respect to all or any of the matters of discussion but it does not completely
dispose of the suit. In such a decree the rights and liabilities of the parties
are stated leaving the actual result or decision to be worked out in future
proceedings. A preliminary decree is passed in those cases where the
proceedings are to be carried out in two different stages. The first stage is
when the rights of the parties are adjudicated and the second stage is when
those rights are implemented or executed.
Final Decree
In general sense, the word ‘final’ means last, ultimate, conclusive or
decisive. In legal sense, a final decree is a decree which completely disposes
of the suit and settles all the questions in discussion between the parties and
nothing is left further for deciding thereafter. It is only said to be final when
such adjudication completely disposes of the suit.
Partly preliminary and partly final Decree
A decree is said to be partly preliminary and partly final when the court
decides two questions by the same decree. For instance, if the court passes
a decree in favour of one party along with a direction of inquiry for the other
party, the former part of the decree is final while the latter part is a
preliminary decree for which further proceedings have to take place. For
example, in a suit of possession of a property with company ‘C’, if the court
passes a decree of possession of the property in favour of the plaintiff and
directs an enquiry into the company ‘C’, then the former part of the decree
is final decree while the latter part is the preliminary decree.
The necessity of a Decree
The Code of Civil Procedure requires the passing of a decree in all the suits.
A decree is based upon judgement and it also follows a judgement which is
the reason why it is an indispensable and essential requisite. The decree is
indispensable or an absolute requisite. It is an essential part of the ultimate
outcome of the suit. An appeal can be made against a decree and not
against a judgement. If the decree is absent an appeal cannot be ‘put in
motion’.
Contents of a Decree
A decree always follows the judgement, coincide with it and contains:
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1. The suit’s number – Every suit has a particular number and it should
be mentioned in the decree.
2. The names, description and registered addresses of the parties –
Every decree shall have the names of all the parties of that particular suit,
the proper description of the parties of the suit, and the registered
addresses of all the parties of the suit.
3. The particulars of the parties claims or defence – Every decree shall
contain the details of the claims and the defences the parties are claiming as
an outcome of the said suit.
4. The relief or the remedy granted to the aggrieved party – The decree
should in particular mention the relief granted to the particular party as a
remedy and not a reward.
5. The total amount of cost incurred in the suit-
1. by whom; or
2. out of what property; and
3. in what portions are they paid or are to be paid.
6. The judgement’s date of pronouncement or delivery date of the
judgement – The decree should mention the date on which the judgement
was delivered followed by the decree.
7. The judge’s signature on the decree – The judge’s signature is an
essential and indispensable element of any decree. The signature of the
judge delivering the judgement is an essential requisite.
Drawing up of a Decree
Rule 6A Order XX of Code of Civil Procedure,1908 states that a decree
shall be drawn within 15 days of the judgement. An appeal can be favoured
or preferred without filing a copy of a decree if it is not drawn within 15 days
of the judgement.
Decrees in Special cases
 In a lawsuit for the recovery or process of regaining or repossession of
an immovable property(real estate), the decree shall include a description of
such property so that it is sufficient to recognise or identify it.
 In a decree for movable property(personality), it must mention the
exact amount of money to be paid as an alternative in case the delivery is
not made due to any reason either it be reasonable or appropriate.
 In a decree for payment of money, the Court may order that the
payment of decretal amount i.e., the amount mentioned in the decree shall
be:
 postponed which is delayed to a future date; or
 made by installments with or without interests.
 In a suit for the recovery or process of regaining or repossession of
immovable property, the Court may pass a decree- for possession or gaining
of property.
for past rents or mense profits. (mesne profits are the profits of an estate
received by a tenant in wrongful possession and recoverable by the landlord)
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that is a final decree in respect of rent or mesne profits in accordance with

results of such enquiry as mentioned.
Rule 12A of the Code of Civil Procedure,1908 states that a decree for
specific performance of a contract for sale or lease of an immovable property
which can also be termed as real estate shall specify the exact period within
which the amount of money or other sum is to be paid by the purchaser or
lessee.
Rule 13 of the Code of Civil Procedure,1908 states that the final decree
shall be passed or delivered in accordance with the result of preliminary
enquiry i.e., in a lawsuit for an account of any property either movable or
immovable and for its due administration under the decree of Court, before
passing a final decree, the court should pass a preliminary decree ordering
accounts to be taken and enquiries to be made.
Rule 14 of the Code of Civil Procedure,1908 states a decree in a pre-
emption suit, it is a suit where the displacement of a lower jurisdiction’s laws
when they conflict with those of a higher jurisdiction, where the purchase
money has not been paid into Court, shall specify a particular day on or
before which the purchase money has to be paid and direct that on payment
to Court, the defendant shall deliver property to the plaintiff, but if the
payment is not made on a specific day, the lawsuit shall be dismissed with
costs. In cases the Court has settled upon rival claims to pre-emption, the
decree shall direct:
Order
Defined under Section 2(14) of the Code of 1908, the order simply provides
as to how a case will move forward in a civil court. As the provision provides,
order connotes the formal expression of a Civil Court’s decision, but
expressly excludes a decree.
Section 2(14) of the Code defines “order” as the formal expression of any
decision of a Civil Court which is not a decree.
Essential Elements of an Order:
 Formal Expression
 Formal Expression should not be a decree
 The decision must be pronounced by a civil court.
Types of Order
 Appealable Orders: Orders against which an appeal lies. Orders
mentioned under Section 104 and Order 43 Rule 1 of the CPC are examples
of appealable orders.
 Non-Appealable Orders: Orders against which a party cannot file an
appeal.
Orders can also be classified into:
 Final Order - The Order which finally determined the rights of the
parties.
 Interlocutory Order - Provisional orders passed by the Court in the
course of the litigation.
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Order And Decree Similarities :

The adjudication of a court of law may either be:
1. A decree
2. An order
It cannot be both. There are some common elements in both of them.
– Both relate to matters in controversy;
– Both are decisions given by a court;
– Both are adjudications of a court of law;
– Both are formal expressions of a decision.
Order and decree distinction:
1. A decree can only be passed in a suit which commenced by presentation
of a plaint. An order may originate from a suit by presentation of a plaint or
may arise from a proceeding commenced by a petition or application.
2. A decree is an adjudication conclusively determining the rights of the
parties with regard to all or any of the matters in controversy. An order on
the other hand, may or may not finally determine such rights.
A decree may be preliminary or final or partly preliminary and partly final,
but there can’t be a preliminary order.
1. Except in certain suits, where two decrees, one preliminary and other final
are passed, in every suit there can be only one decree; but in the case of a
suit or a proceeding, a number of orders may be passed.
2. Every decree is appealable, unless otherwise expressly provided, but
every order is not appealable. Only those orders are appealable as specified
in this Code.
3. A Second Appeal lies to the High Court on certain grounds from the
decree passed in the First Appeal. Thus there may be two appeals; while no
Second Appeal lies in case of Appealable Orders.
Judgement
The term Judgement is defined in Section 2(9) of the Code of Civil
Procedure, 1908. A judgement contains facts of the case, the issues
involved, the evidence brought by the parties, finding on issues (based on
evidence and arguments). Every judgement shall include a summary of the
pleadings, issues, finding on each issue, ratio decidendi and the relief
granted by the court. On a daily basis, numerous judgements are
pronounced and various cases are disposed of. Judgements play a very
important role in the working of our judicial system because they act as
precedents for cases to come in the near future. A judge in the judgement
pronounced, always states the reasons for such a decision.
Copy of the judgement
Once the judgement is pronounced the copies of that particular judgement
should be immediately made available to the parties on payment of costs as
specified, by the party applying for such copy, of such charges as may be
specified in the rules and orders made by the High Court (H.C.) Such a rule
is specified in Order XX Rule 6-B of the Code of Civil Procedure, 1908.
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Contents of the judgement

According to Rule 4 Order XX of Code of Civil Procedure, 1908:
Judgements of a Court of Small Causes are satisfactory if they contain the
points for determination and the decision thereon.
Judgments of other Courts shall contain:
 Summary of the pleadings which is a concise statement of the case;
 Issues which are the points for determination;
 Findings on each issue and the decision thereon;
 Ratio decidendi (reasons for such a decision); and
 The remedy, which is the relief granted.
Alteration of a judgement
Once a judgement is dated and signed by the judge it can only be altered or
amended if:
There are arithmetical or clerical errors. (clerical errors refer to the errors
made by clerks and arithmetical errors refer to errors made in numbers such
as addition, subtraction, multiplication and division). There are errors due to
accidental slips or omissions (these errors take place when some essential
element is left unnoticed) (Section 152) on review (Section 114).
Foreign Court, Foreign Judgement (Sec. 13)
The Indian Code of Civil Procedure, 1908 (CPC) lays down the procedure for
enforcement of foreign judgments and decrees in India. CPC, 1908 had
defined the following as-
Section 2(5) “foreign Court” means a Court situated outside India and not
established or continued by the authority of the Central Government.
Section 2(6) “foreign judgment” means the judgment of a foreign Court.
Nature and Scope of Foreign Judgments
Section 13 embodies the principle of res judicata in foreign judgments. It
embodies the principle of Private International law that a judgment delivered
by a foreign court of competent jurisdiction can be executed and enforced in
India.
Object of Recognizing Foreign Judgments
The judgment of a foreign court is enforced on the principle that where a
foreign court of competent jurisdiction has adjudicated upon a claim, a legal
obligation arises to satisfy that claim in the country where the judgment
needed to be enforced. The rules of private international law of each state
differ in many respects, but by the comity of nations certain rules are
recognized as common to civilized Jurisdictions
Jurisdiction of Foreign Courts
In Private International Law, unless a foreign court has jurisdiction in the
international sense, a judgment delivered by that court would not be
recognized in India. But it considers only the territorial competence of the
court over the subject-matter and defendant. Its competence or jurisdiction
in any other sense is not regarded as material by the court in this country.
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Presumption as to foreign judgments

Section 14 states the presumption that an Indian court takes when a
document supposing to be a certified copy of a foreign judgment is
presented before it. The Indian Courts presume that a foreign Court of
competent jurisdiction pronounced the judgment unless the contrary
appears on the record, but by proving want of jurisdiction may overrule such
presumption.
Section 14. Presumption as to foreign judgments – The Court shall
presume, upon the production of any document purporting to be a certified
copy of a foreign judgment, that such judgment was pronounced by a Court
to competent jurisdiction, unless the contrary appears on the record; but
such presumption may be displaced by proving want of jurisdiction[6].
Conclusiveness of Foreign Judgments
Section 13 lays down the fundamental rules which should not be violated by
any foreign court in passing a decree or judgment. The decree or judgment
of foreign court will be conclusive except where it comes under any of the
clauses (a) to (f) of Section 13.
When foreign judgment is not conclusive-A foreign judgment shall be
conclusive as to any matter thereby directly adjudicated upon between the
same parties or between parties under whom they or any of them claim
litigating under the same title except,—
(a) Where it has not been pronounced by a Court of competent jurisdiction;
(b) Where it has not been given on the merits of the case;
(c) Where it appears on the face of the proceedings to be founded on an
incorrect view of international law or a refusal to recognize the law of India
in cases in which such law is applicable
(d) Where the proceedings in which the judgment was obtained are opposed
to natural justice;
(e) Where it has been obtained by fraud;
(f) Were it sustains a claim founded on a breach of any law in force in India.
Foreign Judgments when cannot be Enforced in India
Before enforcing a foreign judgment or decree, the party enforcing it must
ensure that the foreign judgment or decree must not fall under these 6
cases. If the foreign judgment or decree falls under any of these tests, it will
not be regarded as conclusive and hence not enforceable in India. Under
Section 13, there are six cases when a foreign judgment shall not be
conclusive. Six tests are discussed below.
Other definitions: Affidavit, Suit, Plaint, Written Statement
Affidavits – Order 19
Affidavits are dealt under Order 19 of the Code. It is a sworn statement
made by the person who is aware of the facts and circumstances which have
taken place. The person who makes and signs is known as ‘Deponent’. The
deponent makes sure that the contents are correct and true as per his
knowledge and he thereby concealed no material therefrom. After signing
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the document, the affidavit must be duly attested by the Oath Commissioner
or Notary appointed by the court of law.
The person who gives attestation to the affidavit shall make sure that the
sign of the deponent is not forged. The affidavit shall be drafted as per the
provisions of the code. It must be paragraphed and numbered properly.
Even though the “affidavit” has not been defined in the code, it basically
means “a sworn statement in writing made specifically under oath or
affirmation before an authorized officer or Magistrate.”
Essentials
There are some basic essentials which are required to be fulfilled while
submitting the affidavit in the court:
 It must be a declaration by a person.
 It shall not have any inferences, it shall contain facts only.
 It must be in the first person.
 It must be in writing.
 It must be statements which are taken under oath or affirmed before
any other authorized officer or a Magistrate.
Contents of affidavit
As per Rule 3, an affidavit shall contain only those facts to which the
deponent is aware of as true to his personal knowledge. However,
interlocutory applications can be filed wherein he can admit his belief.
Evidence on affidavit
As per section 3 of the Evidence Act, affidavits are not considered as
evidence. When there is a need to prove the facts, oral evidence is normally
taken into consideration by the court. However, Rule 1 Order 19 is invoked
by the Court when it finds that it is necessary to make an order for any
particular fact which may be proved by affidavit. If a person provides
evidence under the affidavit then the opposing counsel has the right to
cross-examine or reply-in-affidavit.
Further, the person who is making an affidavit shall put on those facts only
to which he has true personal knowledge. If he gives a statement, not to his
personal knowledge then in such case he shall mention the true source. The
counsel shall advise the deponent to make sure that he puts facts which he
knows rather than what he believes.
False affidavit
Under Section 191, 193, 195, 199 of IPC,1860, filing a false affidavit is an
offence. Giving a lenient view will undermine the value of the document and
it will harm the proceedings and will provide no justice to the parties.
Criminal contempt of court proceedings can be initiated by the court against
the person who files false affidavits in the court of law. Strict actions are
taken against public officials who files false affidavits.
As per section 193 of the IPC:
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 a person who intentionally gives false evidence or fabricates false

evidence during a judicial proceeding, he shall be punished with seven years
of imprisonment and fine;
 and whoever intentionally gives or fabricates false evidence in any
other case, shall be punished with imprisonment of either description for a
term which may extend to three years, and shall also be liable to fine.
Meaning of suit
The word suit has not been defined anywhere in the Code, but it is a
proceeding which is commenced by presentation of a plaint. In Hansraj
Gupta and Ors. vs. Official Liquidators of the DehraDun-Mussoorie Electric
Tramway Co.Ltd., the Privy Council has defined the expression “suit” as a
civil proceeding instituted by presentation of a suit.
In Pandurang Ramchandra vs. Shantibai Ramchandra, the Supreme Court
has stated suit is to be understood to apply on any proceeding in a court of
justice by which an individual pursues that remedy which the law affords.
Plaint
A Plaint is a legal document that contains the content of any civil suit which
shows the Plaintiff’s claim after filing suit. The plaintiff is the first step of the
Plaintiff in the form of a legal document for the commencement of suit and it
shows what a Plaintiff wants from that suit. The concept of a plaintiff is
mentioned in the Civil Procedure Code. Through the help of the plaintiff, the
plaintiff narrates or describes the cause of action and related information
which is considered as essential from the viewpoint of the suit.
In the case of the plaintiff, the cause of action consists of two divisions, first
is the legal theory (the factual situation based on which the plaintiff claims
to have suffered) and second is the legal remedy that the plaintiff seeks
from the court. A plaint is considered an important concept because it is the
foremost and initial stage to initiate any lawsuit and helps to find a civil court
of appropriate jurisdiction.
Order VII of the Code of Civil Procedure deals, particularly with plaint. In
Order VII of CPC, there are many different rules which deal with different
constituents of plaint. Rules 1 to 8 deal with the particulars of the plaint.
Rule 9 of CPC deals with how the plaint will be admitted and after that Rule
10 to 10-B talks about the return of the plaint and the appearance of
parties. And the main Rules i.e 11 to 13 deal with the rejection of the plaint
and in which circumstances the plaint can be rejected.
Section 26 of the Code of Civil Procedure states “Every suit shall be
instituted by the presentation of a plaint or in such other manner as may be
prescribed.” This section clearly shows that plaint is very much necessary for
the establishment of a suit before the civil or commercial court.
Necessary Contents of A Plaint
A plaint is a legal document that contains a lot of necessary contents in the
absence of which, it cannot be considered as a plaint. The contents
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necessary for a plaint are mentioned in Rules 1 to 8 of Order VII of CPC.

These are mentioned below:
 Plaint should contain the name of the commercial or civil court where a
suit will be initiated.
 Plaint should contain details of the plaintiff such as the name, address,
and description.
 Plaint should contain the name, residence, and description of the
defendant.
 When a plaintiff has some defects or problems in health or any type of
disability, the Plaint should contain a statement of these effects.
 Plaint should contain the facts due to which cause of action arises and
where the cause of action arises it should also be mentioned.
 Plaint should not only mention facts due to which cause of action
arises but also those facts which help in recognizing the jurisdiction.
 Plaint should also contain about that relief which the plaintiff seeks
from the court.
 When the plaintiff is ready to set off a portion of his claim, the Plaint
should contain that amount which has been so allowed.
 Plaint should contain a statement of the value of the subject-matter of
suit not only for the purpose of jurisdiction but also for the purpose of court-
fees.At last, the content that should be on plaint is the plaintiff verification
on oath.
This shows that the plaint is a necessary component for the successful
initiation of suits in commercial or civil courts and plays a very important
role throughout the suit. Some additional particulars which were not
mentioned above include the following: Plaintiff shall state the exact amount
of money to be obtained from the defendant as given under Rule 2 of order
VII whereas Rule 3 of order VII of CPC states that when the plaint contains
subject matter of immovable property, then the property must be duly
described.
Caveat (Sec. 148A)
Meaning of Caveat
The caveat in Latin means “let a person be aware” and in law, it may be
understood as a notice given asking not to act in a certain manner without
informing the person who gave such a notice. Under the Civil Procedure
Court, the provision of caveat is dealt with in Section 148A. The person who
files a caveat is called the Caveator and the person who has instituted a suit
or is likely to do so is called caveatee. The main object of caveat is to ensure
that the court does not pass ex parte orders and that the interests of the
caveator are protected. Caveat also reduces the burden of court and brings
an end to the litigation as it reduces the multiplicity of proceedings
What does a caveat contain?
A caveat or a notice given to the court that certain actions may not be taken
without informing the caveator should contain the following information:
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 Name of the caveator;

 Address of the caveator where the notice would be sent;
 The name of the court where such caveat is filed;
 The number of the suit and the number of the appeal if applicable;
 Brief details about suit or appeal likely to be filed;
 Name of the probable plaintiffs or appellants and the respondents.
When to lodge a Caveat?
According to Section 148A, when people apprehend that some case against
them is filed or is about to be filed in any court of law in any manner, they
have a right to lodge a caveat. The Caveat may be lodged in the form of a
petition under the following circumstances:
Who may lodge a caveat?
Section 148A further provides that a caveat may be filed by any person,
whether a party to the suit or not, as long as the person filing the caveat has
the right to appear before the court in regard to the suit in question. Thus
caveat can be filed by a third party as well, if they in any manner are
connected to the suit in question
Where can a caveat be lodged?
As and when the caveator anticipates some legal proceedings to be filed
against him in the near future, he can file a petition for a caveat in any Civil
Court of original jurisdiction, Appellate Court, High Court as well as Supreme
Court. Civil Courts include Courts of Small Causes, Tribunals, Forums, and
Commissions.
Limitation
The exercise of inherent powers carries with it certain barriers such as:
They can be applied only in the deficiency of particular provisions in the
Code; They cannot be applied in dispute with what has been expressly given
in the code;
They can be applied in rare or exceptional cases; While operating the
powers, the court has to follow the method shown by the legislature; Courts
can neither exercise jurisdiction nor entrust in them by law; To abide by the
principle of Res Judicata i.e., not to open the issues which have already been
decided finally; To pick a mediator to make an award afresh; Substantive
rights of the parties shall not be taken away; To limit a party from taking
proceedings in a court of law; and To set apart an order which was valid at
the moment of its issuance.
Execution of Judgement and Decree (Order 21)
Meaning, Nature and Scope
The term “execution” is not defined in the CPC. The term “execution” means
implementing or enforcing or giving effect to an order or a judgment passed
by the court of justice. In simple words “execution” means the process of
enforcing or giving effect to the decree or judgment of the court, by
compelling the judgment-debtor to carry out the mandate of the decree or
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order and enable the decree-holder to recover the thing granted to him by
judgment.
Illustration:
X files a suit against Y for Rs 20,000 and obtains a decree against him. Here
X would be called the decree-holder, Y is the judgment-debtor, and the
amount of Rs 20,000 is the judgment- debt. Y is bound to pay Rs 20,000 to
X, as the decree is passed against him. Suppose Y refuses to pay the
decretal amount to X, X can recover the said amount by execution through
the judicial process. The principles governing the execution of a decree or
order are given in Section 36 to Section 74 (substantive law) and Order 21
of the code which provides for procedural law.
Execution proceedings under CPC
The Court further observed that numerous provisions of Order 21 take care
of various situations providing effective remedies to judgment-debtors,
decree-holders and claimant objectors. In the cases, where provisions are
not capable of giving relief inadequate measures and appropriate time, to an
aggrieved party, then filing a regular suit in the civil court is the solution.
The Court further explained that the judicial quality of the remedy under
Civil Procedure Code is considered to be superior as compared to other
statutes therefore, the judges are expected to do better as they are
entrusted with the administration of justice
Courts which can execute decrees
Section 38 of the Code states that a decree can be executed either by the
Court of the first instance or by the Court to which it has been sent for
execution.
Section 37 of the Code further establishes the scope of the expression
“court which passed a decree” with the object of enabling a decree-holder to
recover the fruits of the decree. The courts which fall within the said
expression are as follows:
The court of the first instance;
The court which actually passed the decree in case of appellate decrees;
The court which has jurisdiction to try the suit at the time of execution, if the
court of first instance ceased to exist; The court which at the time of
execution had jurisdiction to try the suit
Transfer of decree for execution
Section 39 provides that when a decree-holder makes an application to the
court of the first instance to send the decree for execution to another court,
the court of first instance may do the same if any of the following grounds
exist:
If the judgment-debtor carries on business, or resides or personally works
for gain, within the jurisdiction of such Court; if the property of judgment-
debtor does not come under the jurisdiction of the Court of the first instance
but it comes under the local limits of the jurisdiction of such Court;
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Section 39(2) states that the Court of the first instance may suo motu send
it for execution to any subordinate Court of competent
Execution of foreign decrees in India
The Code lays down the procedure for execution of foreign judgments and
decrees in India. While enforcing a foreign judgment or decree in India it
should be ensured that the judgment or decree is a conclusive one, given on
the merits of the case and by a court having competent jurisdiction.
What is a foreign judgment and a foreign decree?
Section 2 (6) of the CPC defines a foreign judgment as a judgment of a
foreign court. As per section 2(5) of CPC, a foreign court implies a court
which is situated outside India and which is not established or continued by
the authority of the Central Government.
A foreign decree is defined in Explanation II to section 44A of the CPC as a
decree or judgment of such court and which directs that a sum of money is
payable. However, such sum of money shall not be a sum payable in respect
of taxes or other charges of a like nature or in respect of any penalty or fine.
It should not include an arbitral award, even if such an award is enforceable
as a decree or judgment.
Foreign judgment or decree needs to be conclusive
A foreign decree or judgment needs to be conclusive in nature. Section 13 of
the CPC lays down the test for conclusiveness of a foreign judgment or
decree, which says that a foreign judgment would be conclusive in all cases
except the following:
 When a court of competent jurisdiction has not pronounced it;
 When it has not been pronounced on the merits of the case;
 When it has been based on a wrong view of international law or a
refusal to recognize the law of India in cases in which such law is applicable;
 When the proceedings carried out while obtaining the judgment are
opposed to natural justice; When such judgment has been obtained by
fraud;
 When it sustains a claim that had been based on a breach of any law
in force in India.
Thus, a foreign judgement or decree shall pass the seven tests mentioned
above. Otherwise, such foreign judgment or decree cannot be enforced in
India as such judgment or decree will not be regarded as conclusive if it fails
any of these tests.
Mode of enforcement of a foreign judgment or decree
Two ways in which a decree or foreign judgment can be enforced in India
are as follows:
Where the decree or judgment has been given by a court in a reciprocating
territory;
Where decree or judgment has been given by a court in a non-reciprocating
territory.
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Execution of foreign decree of a reciprocating territory in India

According to Section 44A of the CPC, a decree of any superior court of a
reciprocating territory shall be executed in India as that has been passed by
the district court.
“Reciprocating territory“ signifies, any territory or country outside India
which the Central Government has declared to be a reciprocating territory,
by notification in the Official Gazette, and “superior courts“, with reference
to any reciprocating territory, means such courts that would be specified in
the said notification.
Execution in case of decrees from non-reciprocating territories
In the cases where a judgment or decree has not been pronounced by a
court of a reciprocating territory, it can be executed only when a fresh suit
on that foreign judgment is filed in a court of India which has competent
jurisdiction to entertain the same.
The Bombay High Court, in Marine Geotechnics LLC vs. Coastal Marine
Construction & Engineering Ltd., observed that when a decree has been
pronounced by a court of a non-reciprocating foreign territory, it can not be
executed unless a fresh suit has been filed by the decree-holder on that
foreign decree or on the original cause of action, or both. The suit must be
filed within a period of three years from the date of the judgment or decree.
The person seeking execution shall show that the foreign decree passes the
tests of Section 13.
Execution of Indian decrees in a foreign territory
Section 45 of the Code is related to the execution of decrees outside the
territory of India. It states that a Court has the power to send a decree for
execution to a Court outside India which has been established by the Central
Government’s authority. It should be ensured that the State has, by
notification in the Official Gazette, declared the said section can apply to
such Court. A plain reading of the aforesaid provision yields the following
features:
There is no provision in the Code which prevents a decree-holder from
executing a decree simultaneously at more than one place against the
property of the judgment-debtor.
In Prem Lata Agarwal vs Lakshman Prasad Gupta & Ors, Supreme Court
observed that “simultaneous execution proceeding in more than one place is
possible but the power shall be used in a restricted manner, in exceptional
cases by imposing proper terms so that the judgment debtors do not face
any hardship because of several executions are being allowed to be
proceeded with at the same time.” Therefore, simultaneous execution
proceedings are not without jurisdiction or illegal.
Procedure in execution
Section 51 to 54 of the Code talks about the procedure in execution.
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Section 51
The section states the jurisdiction and power of the court in executing a
decree. An application for execution of the decree can either be oral or
written. The court may execute decree as per the mode of implementation
prayed by the decree-holder or as the court deems fit.
Mode of executing decree
 By delivery of any property (movable or immovable) specifically
decreed.
 By sale of the property with or without the attachment of the property.
If the property is situated within the jurisdiction of the court then it has the
power to attach the property.
 By arrest and detention. However, this mode should not be exercised
without giving a reasonable opportunity to the judgment-debtor, in the form
of a show-cause notice as to why he should not be imprisoned.
Execution by appointing a receiver
If any other mode apart from the ones mentioned in clause(a) to (c) needs
to be used in the execution of a decree then clause(e) comes into play.
Section 52
This section deals with the cases where the decree is passed against the
legal representative of the judgment-debtor (deceased). So long as the
property of the deceased remains in the hands of a legal representative, a
decree can be executed against the property, if it is for the payment of
money out of the property of the deceased and if the decree has been
passed against the party as the legal representative of the deceased person.
Section 53
The Section states that when a property is liable for payment of a debt of a
deceased ancestor and it is in the hands of a son and descendant, then the
property will be deemed to be of the deceased which has as his legal
representative come into the hands of the son or other descendants.
Section 54
When a decree has been passed for partition or for the separate possession
of a share of an undivided estate for the payment of revenue to the
government, this section comes into play. The partition of the estate or
share needs to be made by the collector, but if the collector denies making
the partition of the revenue paying property, then the civil court can do so.
To attract the provisions of this section, the plaintiff asking for the division of
government revenue is not deemed as an essential condition.
Powers of the transferor court
Once a court which has passed a decree and transferred it to another court
of competent jurisdiction, it would cease to have jurisdiction over that
decree and it cannot execute the decree. Then, only the transferee court can
entertain an application for execution.
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Powers of the transferee court

Under Order 21 Rule 8 of the Code, if a decree under the provisions of
section 39 has been sent for execution to another district, it may be
executed by either the district court to which it was sent or by a subordinate
court which has competent jurisdiction, to which the district court may refer
it.
Section 42 provides for the powers of the transferee court and states that
the Court to which a decree has been sent for execution shall have the same
powers in execution of such decree as if it had been passed by itself.
The Court will have the following powers, namely:—
 To send the decree for execution to another Court under section 39.
 To enforce execution of a decree against the legal representative of
the deceased judgment-debtor under section 50.
 To order attachment of a decree.
However, the court to which a decree is sent for execution will not have the
power to order execution at the instance of the transferee of the decree and
the power to grant leave to execute a decree passed against a firm against
any person, other than a person referred to in Rule 50 of Order XXI.
Powers of executing court
The section states the jurisdiction and power of the court in executing a
decree. An application for execution of the decree can either be oral or
written. The court may execute decree as per the mode of implementation
prayed by the decree-holder or as the court deems fit.
Mode of executing a decree
By delivery of any property (movable or immovable) specifically decreed.
By sale of the property with or without the attachment of the property. If the
property is situated within the jurisdiction of the court then it has the power
to attach the property.
By arrest and detention. However, this mode should not be exercised
without giving a reasonable opportunity to the judgment-debtor, in the form
of a show-cause notice as to why he should not be imprisoned.
Execution by appointing a receiver.
If any other mode apart from the ones mentioned in clause(a) to (c) needs
to be used in the execution of a decree then clause(e) comes into play.
3) Jurisdiction of Civil Courts

Introduction
Jurisdiction has not been explained in the Code of Civil Procedure. In simple
words, it can be described as the power of the court to settle the matter.
The Indian Judiciary has invoked the ancient legal maxim ‘Ubi jus Ibi
Remedium’, which means that where there is a right there is a remedy. The
judicial forum must have jurisdiction to deal with the matter. Hence, the
Jurisdiction commonly rests where the crime is committed.
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Meaning of jurisdiction
Jurisdiction is defined as the limit of judicial authority or extent to which a
court of law can exercise its authority over suits, cases, appeals etc. A 1921
Calcutta High Court judgement in the case of Hriday Nath Roy Vs Ram
Chandra sought to explain the meaning of the term ‘Jurisdiction’ in detail. An
investigation of the cases in the texts shows several attempts to explain the
word Jurisdiction which has been declared to be the power to hear and
determine the issues of law and the fact or the authority by which their
judicial powers take knowledge of facts and decide causes or the authority to
hear and decide the legal dispute or the power to hear and determine the
subject matter in the dispute among the parties to a suit and to adjudicate
or exercise any judicial power over them or the ability to hear, determine
and declare judgement on issues before the court or the power or authority
which is given to a court by government to understand and learn causes
between parties and to give a judgement into the effect or the power to
enquire into the facts to apply the law to pronounce the Judgement and put
it into execution.
Kinds of jurisdiction
Territorial or local jurisdiction
Under this territorial or local jurisdiction, the geographical limits of a court’s
authority are clearly delineated and specified. It cannot exercise authority
beyond that geographical/ territorial limit. For example, if a certain crime is
committed in Madhya Pradesh, only the courts of law within the borders of
Madhya Pradesh can hear and decide the case. Furthermore, Section 16 of
the Code of Civil Procedure explains the territorial jurisdiction on the
grounds of the location of the immovable property. In the case of Harshad
Chiman Lal Modi Vs D.L.F Universal Ltd , the court interpreted Section 16
that the suit pertaining to immovable property should be brought to the
court. The court does not have the power to decide the rights of property
which are not situated. However, the court can still pass a relief if the
opposite party agrees to try the suit in such a case.
Pecuniary jurisdiction
Pecuniary means ‘related to capital.’ It approaches the question of whether
the court is competent to try the case of the financial value. The code allows
analysing the case unless the suit’s value exceeds the financial limit of the
court. Section 15 of the Code of Civil Procedure commands the organisation
of the suit in the court of the low grade. It refers to pecuniary jurisdiction of
Civil court. It is a course of the method and it does not affect the jurisdiction
of the court. The main objective of establishing pecuniary jurisdiction is to
prevent the court of a higher level from getting burdened and to provide
assistance to the parties. However, the court shall interfere if it finds the
judgment to be wrong. For example, ’A ’wants to accuse ‘B’ due to a
violation of the contract to obtain Rs 5000 in Bombay. The Bombay High
Court has original jurisdiction and small causes court with the jurisdiction up
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to Rs 50000. So, a suit to obtain Rs 5000 should ideally be dealt with small
causes court. In the case of Karan Singh Vs Chaman Paswan the plaintiff
filed a suit in the subordinate court involving an amount of Rs 2950, but the
court rejected the case. Later his next appeal was allowed by the High Court,
but it ordered him to pay the deficit amount. The appellant contested that
the decision of the district court will be a nullity, but the High Court
dismissed the claim. Later the Supreme Court confirmed the decision of the
High Court declaring that the decision of district court won’t be void.
Jurisdiction as to the subject matter
The subject matter can be defined as the authority vested in a court to
understand and try cases concerning a special type of subject matter. In
other words, it means that some courts are banned from hearing cases of a
certain nature. No question of choices can be decided by the court which do
not have subject matter jurisdiction. Section 21 of the Code of Civil
Procedure is related to the stage challenging the jurisdiction. For Example,
“Ranveer”, a resident of Sonipat bought a food item of ‘AA’ brand that was
plagued with pests. He should prosecute ‘ZZ’ company in Sonipat District
forum rather than District Civil Court of Sonipat.
Original and appellate jurisdiction
Appellate jurisdiction refers to the court’s authority to review or rehearsal
the cases that have been already decided in the lower courts. In the Indian
circumstances, both the High Court and Supreme Court have the appellate
jurisdiction to take the subjects that are bought in the form of appeals.
Original Jurisdiction refers to the court’s authority to take notice of cases
that could be decided in these courts in the first instance itself. Unlike
appellate jurisdiction wherein courts review the previously decided matter,
here the cases are heard afresh.
Exclusive and concurrent jurisdiction
In Civil Procedure, exclusive jurisdiction means where a single court has the
authority to decide a case to the rejection of all the courts. This jurisdiction
is decided on the basis of the subject matter dealt with by a specific court.
For example, the U.S District courts have particular jurisdiction on
insolvency topics.
Concurrent jurisdiction exists where two or more courts from different
systems simultaneously have jurisdiction over a particular case. In this
situation, parties will try to have their civil or criminal case heard in the
court that they perceive will be most favourable to them.
General and special jurisdiction
General jurisdiction means that general courts do not limit themselves to
hearing only one type of cases. This type of jurisdiction means that a court
has the power to hear all types of cases. So the court that has general
jurisdiction can hear criminal, civil, family court case and much more.
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Specific jurisdiction is the ability of the court to hear a lawsuit in a state

other than the defendant’s home state if that defendant has minimum
contacts within the state where the suit will be tried.
Legal and equitable jurisdiction
Equitable jurisdiction belongs to the authorities of the courts to take specific
actions and pass some orders in order to deliver an equitable and reasonable
outcome. These judgments are usually outside the purview of law, in the
sense that support provided by the courts may not be necessarily confirmed
by the statue. In the case of K.K.Velusamy Vs N.Palanisamy, the Supreme
Court of India held that Section 151 does not give any special jurisdiction to
civil courts, but only presents for the application of discretionary power to
achieve the ends of justice. This suggests that the court cannot give any
such order which may be denied under any law in such an order that may be
prohibited under any law in order to achieve the ends of justice. This would
lead to the conclusion that such equitable jurisdiction is secondary to the
authority of the courts to implement the law.
Expounding and expanding jurisdiction
Expounding jurisdiction means to describe, clarify and explain jurisdiction.
Expanding jurisdiction means to develop, expand or prolong jurisdiction. It is
the duty of the court to clarify its jurisdiction and it is not proper for the
court to extend its jurisdiction.
Jurisdiction of civil court
Section 9 of CPC
Section 9 of the Code of Civil procedure deals with the jurisdiction of civil
courts in India. It declares that the court shall have jurisdiction to try all
lawsuits of civil nature accepting suits of which their cognizance is either
expressly or impliedly barred.
Conditions
A Civil court has jurisdiction to decide a suit if two requirements are fulfilled:
1. The suit must be of a civil nature.
2. The cognizance of such a suit should not have been expressly or
impliedly barred.
i) The suit of civil nature
Meaning
‘Civil Suit’ has not been explained in any act. Any suit that is not criminal in
nature can be termed as a suit of a civil nature. Any suit that pertains to
determination and implementation of civil rights may be defined as a civil
suit. In the case of Kehar Singh Nihal Singh Vs Custodian General, the court
elaborated the concept of Civil proceeding. It was defined as a grant of
private rights to individuals or corporations of society. The objective of the
action is the reward or recovery of private rights. In other words, the civil
action may be described as the proceeding between two parties for
implementation or redressal of private rights.
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Nature and scope

The expression ‘suit of civil nature’ will cover the private rights and
obligations of the citizens. The political and religious question is not covered
by a suit of a civil nature. A suit in which principal question is related to
caste or religion is not of a suit of a civil nature. But if the main question in a
suit of civil nature involves the decision relating to caste question or to
religious rites and ceremonies it does not terminate to be a suit of a civil
nature. The court has jurisdiction to decide those questions also, in order to
decide the important question which is of civil nature.
Explanation of doctrine
Each phrase and description assigns a duty on the court to apply jurisdiction
for the accomplishment of rights. No court can decline to examine if it is of
the information mentioned in Section 9 of the Code of Civil Procedure. The
word civil according to the dictionary suggests, associating to a citizen as an
individual. The word nature has been called the primary qualities of a person
or thing. The word civil nature is prevalent than the word civil proceeding.
The doctrine described the theory of the jurisdiction of civil courts under
section 9 of the Code of Civil Procedure in PMA Metropolitan Vs M.M.
Marthoma the Supreme Court observed that:
 The phrases used in section 9 has a positive and negative intent.
 The original part has a broader sense as it includes all the problems of
civil nature; on the other hand, the latter part has a wider sense as it
refuses the topic which is impliedly or expressly barred.
 The two reasons mentioned in Section 9 reveals the legislative
purposes.
 It designated duty on the court to perform the jurisdiction for the
implementation of private rights
 No court has the benefit to refuse the matter which introduces under
this section
 It is necessary to take the knowledge of matter because the word
“shall” is used, which means that it is a compulsory section.
In the case of Shankar Narayanan Potti vs K. Sreedevi, the Supreme Court
held that the ‘Civil Court has primary jurisdiction in all types of civil matters
as per Section 9 of CPC unless the action is expressly or impliedly barred.”
This means that Legislature can defeat the jurisdiction of the civil court by
adding a provision or clause in any Act itself. In the case of Shri Panch Nagar
Park vs Purushottam Das it was held that if there are no specific terms in
any statute the court needs to look into design, plan and suitable provisions
of the Act in order to find implied dismissal of the jurisdiction of a civil court.
Test
A suit in which the right to property or to an office is struck is a suit of a civil
nature, notwithstanding that such right may depend only on the choice of a
question as to religious rituals or ceremonies.
ii) Cognizance not barred
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A claimant having a complaint of a civil nature has the power to begin a civil
suit unless its cognizance is barred, either expressly or impliedly.
Suits expressly barred
A suit is said to expressly barred when it is prohibited by the statute for the
time being in force. It is subject to the competent legislature to bar the
jurisdiction of civil courts with regard to a specific class of suits of civil
nature, provided that, in doing so it retains itself within the scope of
legislation given to it and does not contradict any terms of the constitution.
Suits impliedly barred
A suit is said to be impliedly barred when it is said to be excluded by general
principles of law. When a specific remedy is given by statute, it, therefore,
denies a person who requires a remedy of any different form than is given
by statute. When an act formed an obligation and made its performance in a
specified manner that performance cannot be implemented in any other
manner.
Presumption as to jurisdiction
In dealing with the subject whether a civil court’s jurisdiction to analyse a
suit is barred or not, it is necessary to bear in mind that every opinion
should be made in support of the jurisdiction of a civil court. The rejection of
the jurisdiction of a civil court to entertain civil causes should not be easily
inferred unless the appropriate law contains express terms to that effect or
points to a significant and inevitable implication of nature.
Burden of proof
It is well proved that it is for the party who tries to dismiss the jurisdiction of
the civil court to establish it. It is uniformly well established that the statue
dismissing the jurisdiction of a civil court must be strictly explained. In the
case of doubt as to jurisdiction, the court should lean towards the theory of
jurisdiction. A civil court has original authority to determine the issue of its
own jurisdiction although as a consequence of such query it may become
that it has no jurisdiction to consider the suit.
Conclusion
Civil court has jurisdiction to investigate whether tribunal and quasi-judicial
bodies or legal executive acted within their jurisdiction. It can be presumed
that section 9 essentially deals with the issue of the civil court’s jurisdiction
to consider a matter. Civil court has jurisdiction to consider a suit of civil
nature except when it’s notification is expressly barred or bared by
significant suggestion. Civil court has jurisdiction to resolve the problem of
its jurisdiction.
4) Res Sub-Judice (Sec. 10)
Nature, Scope and Objective
The principle of res sub-judice prevents the court from proceeding with the
trial of any suit in which the matter in issue is directly or substantially the
same with the previously instituted suit between the same parties and the
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court where the issue is previously instituted is pending has the power to
grant the relief sought.
This rule is applicable to the trial of the suit and not the institution. It does
not restrict the court from passing interim orders like injunction or stay.
However, it applies to revisions and appeals.
The purpose behind this rule is to prevent multiplicity of cases in courts. It is
also sought to prevent the plaintiff from getting two separate decisions from
different courts in his favour or two contradictory judgements. It also
ensures to protect the litigant from unnecessary harassment. The policy of
law is to restrict the plaintiff to one legislation, thus obviating the possibility
of two conflicting verdicts by one and the same court in respect of the same
relief.
Conditions
Section 10 of the Civil Procedural Code, 1908 deals with the conditions
required to apply the principle of res sub judice. The conditions in the
process of application of res sub-judice are:
Where the matter in issue is same
Section 10 clearly states that the matter in issue in both the suits must be
directly or substantially be the same.In other words there must be two suits
one that is previously instituted and another that is subsequently
substituted. The issues of both the suits should be the same to get the
benefit of this principle, it is not sufficient if only one or two issues are
common. In the circumstances where the entire issues are not the same, the
court may exercise its power under Section 151 and stay the trial in a
subsequent suit or the trial of the suit may be consolidated. The power of
courts to stay the trial under Section 151 is discretionary in nature and can
be exercised only when there is an abuse of process of court and if it defeats
the ends of justice.
According to Indian Evidence Act, 1872 “matter in issue” are of two kinds:
Matter directly and substantially in issue– Here “directly” means immediately
i.e. without any intervention. The word “substantially” implies essentially or
materially.
Matter collaterally and incidentally in issue– It is just contrary to the matter
directly or substantially in issue.
 Where the parties in suits are same
The two suits should have the same parties or their representatives.
 Where the title of the suit is same
The title of both the suits for which the parties are litigating should also be
same.
 Where the suit must be pending
The former suit must be pending in the court while the latter suit is
instituted. The word pending is for the previously instituted suit, where the
final decision has not been arrived at.
 In a competent court
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Section 10 also specifies that the former suit must be pending before a court
which is competent to carry out the trial. If the former suit is pending before
an incompetent court, no legal effects can flow from it.
Illustrations:
‘X’ and ‘Y’ decide to enter into a contract for the sale of machines. ‘X’ is the
seller and ‘Y’ is the purchaser. Y defaulted in paying the amount of the sale
to X. X first filed a suit for recovery of the entire amount in Bangalore.
Subsequent to this, X filed another suit at Bombay High Court demanding
Rs. 20,000 as outstanding balance. In X’s suit Y took the defence that X’s
suit should be stayed since both the suits are on similar issue. However, the
Bombay court held that since X’s first suit and the second suit have similar
issues similar to the first suit, the subsequent suit is liable to be stayed.
‘P’ was an agent in Patna who agreed to sell goods in Odisha to ‘M’. ‘P’ the
agent then filed a suit for balance of accounts in Patna. ‘M’ sues the agent ‘P’
for accounts and his negligence in Odisha; while the case was pending in
Patna. In this case, Patna court is precluded from conducting trial and can
petition Odisha Court to direct a stay of proceedings in Patna Court.
The moment the above conditions are satisfied, a court cannot proceed with
the subsequently instituted suit since the provisions contained in Section 10
are mandatory and the court cannot exercise its discretion. The order of stay
can be made at any stage of the proceedings.
However, Section 10 takes away the power of the court to examine the
merits of the case thoroughly. If the court is satisfied with the fact that the
subsequent suit can be decided purely on legal point, it is open for the court
to decide in such a suit.
Test
The test of applicability for Section 10 is whether the decision in a former
given suit would operate as res judicata(decided case) in the subsequent
suit. It this happens, then the latter suit must be stayed. This can also be
inferred from S.P.A Annamalay Chetty vs. B.A Thornbill.
Suit pending in foreign court
The explanation clause of Section 10 clearly provides that there is no
limitation on the power of an Indian court to try a subsequent instituted suit
if the previously instituted suit is pending in a foreign suit. This also means
that the cases can be carried on simultaneously in two courts.
Inherent power to stay
The word inherent has very wide meaning which includes an inseparable part
of something or an attribute or quality which is permanent and essential. It
is something which is intrinsic and attached to a person or object. Therefore,
inherent powers are the powers of the courts which are inalienable i.e.,
something which can be separated or taken away from the courts and they
exercise it in order to provide complete justice to the parties.
Even where the provisions of Section 10 do not strictly apply, a civil court
has inherent power under Section 151 to stay a suit to achieve justice.
 27

Additionally courts can also consolidate different suits between the same
parties in which the matter of issue is substantially the same. In Bokaro and
Ramgarh Ltd. vs. State of Bihar and Another(1962) the matter in issue was
regarding the ownership of a property. The court in this case used its power
and consolidated different issues having the same matter.
Consolidation of suits
The objective behind Section 10 is to avoid two contradictory decisions in
the same matter by different courts. To overcome this the courts can pass
an order of consolidation of both the suits. In the case of Anurag and Co.
and Anr. vs. Additional District Judge and Others, it was explained that
consolidation of suits is ordered under Section 151 for meeting the ends of
justice as it saves the party from a multiplicity of cases, delays and
expenses. The parties are also relieved from producing the same evidence at
two different places.
Effect of contravention
Any decree passed in contravention of Section 10 is not null and therefore
cannot be disregarded completely. It is to be clearly understood here that it
is only the trial and not the institution of the subsequent suit which is barred
under this section. But this right which is given in favour of parties can be
waived by them. Hence, if the parties in a suit decides to waive their rights
and ask the court to proceed with the subsequent suit, they cannot
afterwards challenge the validity of the subsequent proceedings.
Interim orders
Interim orders are the temporary orders which are passed for a limited
duration just before the final order. An order of stay under Section 10 does
not take away the power of the court to pass interim orders. Therefore, the
courts can pass such interim orders as it thinks fit like attachment of
property, injunction etc.
Res Judicata (Sec. 11)
Res Judicata meaning
Res means “subject matter” and judicata means “adjudged” or decided and
together it means “a matter adjudged”.
In simpler words, the thing has been judged by the court, the issue before a
court has already been decided by another court and between the same
parties. Hence, the court will dismiss the case as it has been decided by
another court. Res judicata applies to both civil and criminal legal systems.
No suit which has been directly or indirectly tried in a former suit can be
tried again.
Res Judicata example
‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the
ground as the area of the land was less than the mentioned on the lease.
The Court found that the area was greater than shown in the lease. The area
was excess and the principles of res judicata will not be applied.
 28

In a case, ‘A’ new lawsuit was filed in which the defendants requested that
the Court dismiss the lawsuit with a plea of res judicata. She was barred
from bringing a claim of res judicata because her previous claim was
dismissed for fraud. The Court said that the defence of res judicata must be
proved by evidence.
Principle of Res Judicata
The principle of res judicata seeks to promote the fair administration of
justice and honesty and to prevent the law from abuse. The principle of res
judicata applies when a litigant attempts to file a subsequent lawsuit on the
same matter, after having received a judgment in a previous case involving
the same parties. In many jurisdictions, this applies not only to the specific
claims made in the first case but also to claims that could have been made
during the same case.
Prerequisites for Res Judicata
 A judicial decision by proficient court or tribunal,
 Final and binding and
 Any decision made on the merits
 A fair hearing
 Earlier decisions right or wrong are not relevant.
Nature and Scope of Res Judicata
Res judicata includes two concepts of claim preclusion and issue preclusion.
Issue preclusion is also known as collateral estoppel. Parties cannot sue each
other again after the final judgment on the basis of merits has reached in
civil litigation. For example, if a plaintiff wins or loses a case against the
defendant in the case say A, he cannot probably sue the defendant again in
case B based on the same facts and events. Not even in a different court
with the same facts and events. Whereas in issue preclusion it prohibits the
relitigation of issues of law that have already been determined by the judge
as part of an earlier case.
The scope has been decided in the case of Gulam Abbas v. State of Uttar
Pradesh. In this case the court incorporated the rules as evidence as a plea
of an issue already tried in an earlier case. Judgment of this case was
difficult as the judges should apply res judicata. It was decided that res
judicata is not exhaustive and even if the matter is not directly covered
under the provisions of the section it will be considered as a case of res
judicata on general principles.
Rationale
The principle of res judicata is founded upon the principles of justice, equity,
and good conscience and it applies to various civil suits and criminal
proceedings. The purpose of this principle was to inculcate finality into
litigation.
Failure to Apply
When a court fails to apply Res Judicata and renders a divergent verdict on
the same claim or issue and if the third court faces the same issue, it will
 29

apply a “last in time” rule. It gives effect to the later judgment and it does
not matter about the result that came differently the second time. This
situation is typically the responsibility of the parties to the suit to bring the
earlier case to the judge’s attention, and the judge must decide how to apply
it, whether to recognize it in the first place.
Doctrine of Res Judicata
The double jeopardy provision of the Fifth Amendment to the U.S.
Constitution protects people from being put on a second trial after the case
has been judged. So the doctrine of res judicata addresses this issue and it
bars any party to retry a judgment once it has been decided.
Section 11 of the Civil Procedure Court incorporates the doctrine of res
judicata also known as “ rule of conclusiveness of judgment”. The doctrine of
res judicata has been explained in the case of Satyadhyan Ghosal v. Deorjin
Debi. The judgment of the court was delivered by Das Gupta, J. An appeal
was made by landlords who attained a decree for ejectment against the
tenants who were Deorajin Debi and her minor son. However, they have not
been yet able to get possession in execution soon after the decree was
made. An application was made by the tenant under Section 28 of the
Calcutta Thika Tenancy Act and alleged that they were the Thika tenants.
This application was resisted by the landlords saying they were not Thika
Tenants within the meaning of the Act.
The tenants moved to the High Court of Calcutta under the Civil Procedure
Code. The court applied the principle of res judicata to achieve the finality in
litigation. The result came that the original court, as well as the higher court,
can proceed for any future litigation on the basis that the previous decision
was correct.
The doctrine of res judicata says –
 That no person should be disputed twice for the same reason.
 It is the State that decides there should be an end to a litigation
 A judicial decision must be accepted as the correct decision.
Constructive Res Judicata
The rule of constructive res judicata in Section 11 of the Civil Procedure
Code is an artificial form of res judicata. It provides that if a plea has been
taken by a party in a proceeding between him and the defendant he will not
be permitted to take pleas against the same party in the following
proceeding with reference to the same matter. It is opposed to public
policies on which the principle of res judicata is based. It would mean
harassment and hardship to the defendant. The rule of constructive res
judicata helps in raising the bar. Hence this rule is known as the rule of
constructive res judicata which in reality is an aspect of augmentation of the
general principles of res judicata.
In the case of State of Uttar Pradesh v. Nawab Hussain, M was a sub-
inspector and was dismissed from the service of D.I.G. he challenged the
order of dismissal by filing a writ petition in the High Court. He said that he
 30

did not get a reasonable opportunity of being heard before the passing of
the order. However, the argument was negative and the petition was
dismissed. He again filed a petition on the ground that he was appointed by
the I.G.P. and had no power to dismiss him. The defendant argued that the
suit was barred by constructive res judicata. However, the trial court, the
first appellate court as well as the High Court held that the suit was not
barred by the doctrine of res judicata. The Supreme Court held that the suit
was barred by constructive res judicata as the plea was within the
knowledge of the plaintiff, M and he could have taken this argument in his
earlier suit.
Res Judicata and Estoppel
Estoppel means the principle which prevents a person from asserting
something that is contrary to what is implied by a previous action. It deals in
Section 115 to Section 117 of the Indian Evidence act. The rule of
constructive res judicata is the rule of estoppel. In some areas the doctrine
of res judicata differs from the doctrine of estoppel –
 Estoppel flows from the act of parties whereas res judicata is the result
of the decision of the court.
 Estoppel proceeds upon the doctrine of equity, a person who has
induced another to alter his position to his disadvantage can not turn around
and take advantage of such alteration. In other words, res judicata bars
multiplicity of suits and estoppel precludes multiplicity of representation of
cases.
 Estoppel is a rule of evidence and is enough for the party whereas res
judicata expels the jurisdiction of a court to try a case and prevents an
enquiry at the threshold (in limine).
 Res judicata forbids a person averring the same thing twice in the
litigations and estoppel prevents the person from saying two opposite things
at a time.
 According to the principle of res judicata, it presumes the truth of
decision in the former suit while the rule of estoppel precludes the party ton
deny what he or she has once called truth.
Res judicata and Res Subjudice
The doctrine of res judicata and res subjudice varies in some factors –
 Res sub judice applies to a matter that is pending trial whereas res
judicata applies to a matter adjudicated or arbitrated.
 Res subjudice prohibits the trial of a suit that is pending decision in a
previous suit whereas res judicata prohibits the trial of a suit that has been
decided in a former suit.
Res judicata and Issue Estoppel
A person who has once been tried by a court of proficient jurisdiction for an
offence and convicted of that offence cannot be tried again for the same
offence as long as acquittal operates. This is given under Section 300(1) of
the Civil Procedure Court. A party cannot proceed to reopen the case if the
 31

matter is finally decided by a competent or proficient court. This principle

applies to criminal proceedings and it is not allowed in the stage of the same
proceedings to try a person for an offence for which he has been acquitted.
Res Judicata and Stare Decisis
Res judicata means a case that has already been decided or a matter settled
by a decision or judgment. Res judicata and stare decisis both are related to
matters of adjudication (arbitration). Stare decisis rests on legal principles
whereas res judicata is based on the conclusiveness of judgment. Res
judicata binds the parties while stare decisis operates between strangers and
bins the courts to take a contrary view on the law already decided. Stare
decisis is mostly about legal principle while res judicata relates to
controversy.
Res Judicata landmark cases
Brobston v. Darby Borough
In the case of Brobston v. Darby Borough, Brobston was the plaintiff who
was injured while driving a vehicle on a public highway in the Borough of
Darby. Due to a transit company that was occupying the street, the steering
wheel of the machine was pulled by the driver’s hand. This resulted in injury
to the complainant.
A suit was filed against the street railway in the Court of Philadelphia to
recover damages. It was proved that negligence was there on the part of
both the parties also known as contributory negligence. The judgment was
passed in favour of the defendant. Later action was again brought against
the same defendant based on the same cause of action and against the
same transit company. The judgment in the first proceeding was brought to
the attention of the court. The plaintiff admitted that Brobston was the same
person who was the plaintiff in the action brought earlier in Philadelphia.
Exceptions to res judicata
Cases where Res Judicata does not apply-
The principle of res judicata does not apply in the Writ of Habeas Corpus as
far as High Courts are concerned. Article 32 gives power to the Supreme
Court to issue writs and some power is given to High Courts under Article
226. The Courts need to give proper reasoning while applying the doctrine of
res judicata. There are some exceptions to res judicata which allow the party
to challenge the validity of the original judgment even outside the appeals.
These exceptions are usually known as collateral attacks and are based on
jurisdictional issues. It is not based on the wisdom of the earlier decision of
the court but the authority to issue it. Res judicata may not be applicable
when cases appear that they need relitigation.
Conclusion
The doctrine of res judicata would not apply to the case until the conditions
are met. The essential condition for the applicability is that the succeeding
suit or proceeding is founded on the same cause of action on which the
former suit was founded. The principle of res judicata can be defeated when
 32

the party has filed the suit on a reasonable ground for example in case a
public interest litigation has been filed there is no reason not to extend the
doctrine of res judicata. The PIL has been filed with a bona fide intention and
the litigation cannot end.
5) Place Of Suing
Introduction
The expression ‘place of suing’ signifies the venue for the trial. The same has
nothing to do with the competency of the court. Section 15 of the Code of
Civil Procedure, 1908 requires the plaintiff to file a suit in the court of the
lowest grade competent to try it. Provisions for the immovable property
have been spread over Sections 16 to 18 of the aforesaid Code. Section
19 specifically applies to suits for compensation for wrongs to persons or
movable property. Section 21 of the Code recognizes the well-established
principle that defects as to territorial or pecuniary jurisdiction can be waived.
A substantive suit for setting aside a decree passed by a court on the ground
of want of territorial jurisdiction is expressly barred by Section 21-A of the
Code.
Section 15 to 20 deals with the place of suing
There are three kinds of jurisdiction to determine the place of suing:-
 Territorial jurisdictions
 Pecuniary jurisdictions
 Subject matter jurisdiction
Whenever the suit is brought before the court the first question is to
determine is whether the court has a jurisdiction to deal with the matter. If
the court has all these (territorial, pecuniary, or subject matter jurisdiction
then only the court has the power to deal with the case. In the case, if the
court does not have any of the above-mentioned factors then it will be
considered as lack of jurisdiction or the irregular exercise of jurisdiction.
when the court who does not have jurisdiction decide the case and give
decision then such decision will be considered as void or voidable depending
upon the different circumstances.
Pecuniary jurisdiction ( Section 15)
Every suit shall be instituted in the court of lowest grade competent to try it.
The word competent denotes that the court must have the power to hear the
case with regards to pecuniary jurisdiction. The court of lowest grade who
has a jurisdiction with regards to pecuniary value shall deal with the case at
first instance.
The issue arises:- who will determine the value of the suit?
Ordinarily, the plaintiff makes the valuation of the suit for the purpose of
determining the pecuniary jurisdiction of the court unless it prima facie
appears to the court that the valuation was not done correctly. When the
court finds that the valuation was either done overvalued or undervalued,
then the valuation will be done by the Court and the court will direct the
party to approach the appropriate forum.
 33

The jurisdiction of the court is decided by the plaintiff valuation but not the
amount for which decree is passed.
Lets us understand from an example, if the court has a pecuniary jurisdiction
of Rs 15000 and the suit for recovery of accounts is filed on the valuation of
suit done by the plaintiff. The valuation was of Rs 15000. Later the courts
find that Rs 20000 is due, in this case, the court is not deprived of its
jurisdiction to pass a decree for that amount.
It is the valuation done by the plaintiff to determine the jurisdiction of the
court. But this does not mean that the plaintiff is set free to file for any
arbitrary value and to choose the court in which he wants to file a suit.
When the court finds that valuation is done improperly for the purpose of
avoiding the jurisdiction of the appropriate court, the court may require the
plaintiff to prove that valuation was done in a proper manner.
Territorial Jurisdiction (Section 16 to 20)
It is divided into:-
 Suits related to immovable property ( Section 16 to 18)
 Suits related to Movable property ( Section 19)
 Other suits( Section 20)
Section 16 states that the suit related to immovable property shall be
instituted where such immovable property is situated.
It talks about the institution of the suit with respect to:-
 Recovery of immovable property with or without profit or rent
 Partition of immovable property
 Foreclosure, sale or redemption in case of charge or mortgage upon
immovable property
 Compensation for a wrong caused to immovable property
 Determination of any interest or rights related to immovable property
 Recovery of movable property under attachment or distraint, for all the
above-mentioned purpose.
When the suit is filed for the relief or compensation for wrong caused to
immovable property held by a defendant or any other person on the behalf
of a defendant where the relief can be obtained through his personal
attendance then suits may be instituted in a court within whose local
jurisdiction:-
 the property is situated, or
 the defendant voluntarily and actually resides or carries on business or
personally for gains.
Section 17:-Cases in which the immovable property is situated within the
local limits of the jurisdiction of different courts.
When the suit is filed for obtaining the compensation or relief for the wrong
caused to immovable property situated within the jurisdiction of two or more
courts, the suit may be filed in any court within whose local jurisdiction a
portion of the property is situated. But in respect for the value of subject
matter of the suit, the entire claim is cognizable by such court.
 34

Section 18– A place of an institution when the jurisdiction of courts is

uncertain
When there is uncertainty with regards to the local limits of the jurisdiction
of courts, and any of the courts has satisfied that there is a ground for
uncertainty, record the statement and may proceed with the case to
entertain and dispose of the case. The decree passed by such court will have
the same effect as if the property was situated within the local limits of its
jurisdiction.
In a case where the court taking the cognizance of case does not record the
statement and objection is brought before Appellate or Revisional Court, the
Appellate or Revisional court shall not allow the objections unless it is
satisfied that at the time of institution of suit there was no reasonable
ground for uncertainty as regards to jurisdiction of Court and there has been
a failure of justice.
Section 19– Suits with regard to movable property
When Applicable
Where the suit is for the wrong caused to the person or property.
Conditions
 If the wrong was done within the local limits of the jurisdiction of one
court
and
 The defendant voluntarily resides or carries on his business or works
for personal gain within the local limits of the jurisdiction of another court
then the plaintiff has an option to file at either court.
Lets us understand through an example
A, residing in Delhi, beats B in Bangalore. B may institute the suit either in
Delhi or Bangalore.
A residing in Bangalore, publishes a defamatory statement of B in Delhi. B
may sue A in Bangalore or Delhi.
Other suits to be instituted where defendants reside or cause of action arises
(Section 20)
When Applicable
When there is a breach of contract or commercial transactions
Conditions
 If the breach of contract was done or cause of action arises within the
local limits of the jurisdiction of one court
And
 Defendant voluntarily resides, carries on his business or works for
personal gains within the local limits of the jurisdiction of another court the
plaintiff has an option to file at either court
Example
C is a tradesman in Bangalore, D carries on business in Hyderabad. D, by his
agent in Bangalore, buys goods from C and requests C to deliver them to
Amarchand Company. C delivers the goods in Bangalore accordingly. C may
 35

sue for the price of goods either in Bangalore where the cause of action
arises or in Hyderabad where D carries on his business.
Objections to jurisdiction( Section 21)
If objection related to the place of suing:-
 pecuniary limits
 competence of the executing court with regards to local limits of its
jurisdiction
is not brought in the Court at the first instance, before settlement or in a
case where the issues are settled, then no objection will be allowed by the
Revisional or Appellate Court unless there is a failure of justice.
Non- Applicability
 Territorial jurisdiction
 Pecuniary jurisdiction
In the case of Karan Singh vs Chaman Paswan
When the court commits an error in entertaining the suit with regard to
pecuniary or territorial jurisdiction then the decision given by such court will
not be void but will be considered as the illegal exercise of jurisdiction.
Bars on a suit to set aside a decree on objection as to the place of suing
(Section 21A)
No suit shall be brought up challenging the validity of decree passed in a
former suit between the same parties or between the parties litigating under
the same title on any ground based on an objection as to a place of suing.
Conclusion
The concept of the place of suing is very important as it helps to determine
the jurisdiction of each court. It helps to the plaintiff where to file a suit. It
saves the time of the court in determining the jurisdiction of the court.
To deal with that matter, the forum must have jurisdiction. Section 15 – 25
of The Code Of Civil Procedure, 1908 governs the Place of Suing of Civil
Suits and provide with a basic concept for the Jurisdictions of Civil Courts.
The conception of the place of suing is of significant nature as it helps for the
determination of the jurisdiction of each court. It guides the plaintiff as to
where to file a suit. It helps in optimizing the time of the court in
determining the jurisdictions.
6) Transfer of Suits

TRANSFER OF SUITS
Sections 22 to 25 enact the law as regards transfer and withdrawal of suits
and appeals from one court to another court. Section 22 read with Section
23 enables the defendant to apply for transfer of a suit while Section 24
empowers High Court and District Court and Section 25 empowers Supreme
Court to transfer any suit or appeal either upon application made by the
party or Suo motu.
 36

Transfer of Suit

Who may To what court General Power of Power of

apply application lies Transfer SupremeCourt to
Section 22 Section 23 Section 24
transfer Section
25

Defendant District Court &

High Court

Section 22: Power to transfer suits which may be instituted in more

than one court.
Section 22 allows whom to make an application for transfer of a suit?
Defendant.
Section 22 provides that the defendant may apply to the court for transfer of
suit to another court in case a suit may be instituted in any one of two or
more courts. Before transfer is ordered under Section 22, following
conditions must be satisfied:

1) Notice is given to the other party.

2) The application must be made at earliest possible opportunity either at

before or settlement of issues.

Hearing of Objections:- After Notice is served to the other party, the court
must decide that application of transfer after hearing of objections of the
opposite party.
Suo-Motu Transfer:- Over and above an application by a party to the suit,
High Court & District Court has power to transfer the suit or appeal even
suo-motu under Section 24. However, Section 25 does not provide for suo-
motu transfer of the suit or appeal by the Supreme Court.
The court after considering such objection raised by the other party, shall
determine in which court the case shall be transferred.
Section 23: To What Court Application lies
This Section indicates in which court application can be made:
 37

1. Subordinate to same Appellate Court- Where the several courts

having jurisdiction are subordinate to the same Appellate Court, application
shall be made to the Appellate Court.
2. Subordinate to different Appellate Court- Where such courts are
subordinate to different Appellate Court, but to the same High Court, the
application shall be made to the said High Court.
3. Subordinate to different High Courts- Where such courts are
subordinate to different High Courts, the application shall be made to the
High Court within the local limits of whose jurisdiction the court in which the
proceedings first commenced is situated. This is called First Commencement
Rule.
Governing factor as to rule to transfer of an application under
Sections 22 & 23.

1. Balance of convenience is a factor to be look into.

2. Prior notice to the parties i.e. served notice to the parties and it
is based on principle of natural justice.
GENERAL POWER OF TRANSFER AND WITHDRAWAL [SECTION 24]
Section 24 contemplates general power of High Court and District Court for
transfer and withdrawal of civil suits.
A suit can be transferred or withdrawn at any stage either on the application
of either party after notice to the parties and after hearing as desired to be
heard or suo motu, without such notice.
The court will order for such transfer or withdrawal after notice and hearing
of both the parties.
The court can transfer any suit, appeal or proceedings pending before it for
trial or disposal to subordinate court.
The court can withdraw pending suit, appeal or proceedings in any
subordinate court and try or dispose of the same, or transfer the same for
trial or disposal to any subordinate court or can re-transfer the same to the
court from where it was transfer or withdrawn.
Q. What will be done if there is a transfer or withdrawal?
Ans. Sub-Sec (2) of Section 24 says in case of transfer or withdrawal, the
court may either re-tried or proceed from the point at it was transfer or
withdrawn.
De Novo trial: Fresh trial or start from where it is left i.e. transfer or
withdrawn.
The proceeding under Section 24 even includes execution proceedings. Here,
transfer may include transfer from a court which has no jurisdiction, i.e.
transfer to those court who has no jurisdiction.
Difference between Sections 22, 23 and 24.
Under Section 22 & 23 both court have jurisdiction i.e. transferor court as
well as transferee court. Alternative Court also have jurisdiction.
But in Section 24 it may be different as well as same thing. There may be
 38

transfer in competent as well as incompetent court.

Transfer may be made from a court which has no jurisdiction to try it
[Section 24 (5)] Section 24 is a Two Way Process.
Subordinate Court Higher Court

Higher Court Subordinate Court

In Durgesh Sharma v. Jayshree1, the Supreme Court held that the power
under Section 24 does not authorize a High Court to transfer any suit,
appeal, etc. from a court subordinate to that High Court to a court not
subordinate to that High Court under Section 23(4) or Section 24.
Section 24 merely confers a discretionary power on the court. The section
does not prescribe any ground on which the case can be transferred.
Transfer can be made for administrative reason as well. The court is required
to issue notice to the other party before ordering transfer of case.
In M.V. Ganesh Prasad v. M.L. Vasudevamurthy 2, the Court observed
that the apprehension of bias in the mind of the petitioner seeking for
transfer of a case should be reasonable and bona fide otherwise the transfer
application would be rejected. It is very necessary for the court to examine
the argument in support of an application seeking for transfer made under
Section 24 of CPC objectively, impassionate and in the totality of the
circumstances.
In Nahar Industrial Enterprises Ltd. v. Hong Kong and Shanghai
Banking Corporation3, the Apex Court held that “Only Civil suits are
subject matter of Inter-State transfer from one civil court to another civil
court. Sub-Section (5) of Section 24 of CPC provides that a suit or
proceeding may be transferred from a court which has no jurisdiction to try
it. The power to transfer one case from one court to another or from one
tribunal to another is to be exercised only if an exceptional situation arises
and not otherwise. Rules of procedures are intended to provide justice and
not to defeat it.”
Section 25: Power of Supreme Court to transfer Suits, etc-
The Supreme Court on the application of a party supported by an affidavit,
after notice, and after hearing such of them as desire to be heard may at
any stage of the suit, transfer any suit, appeal or other proceedings from
one Civil Court or High Court of one state to another Civil Court or High
Court of another state if it is expedient for the ends of justice. The Supreme
Court may also dismiss a frivolous or vexatious application and impose
penalty of a sum upto Rs. 2000. The transferee court may either retry it or
proceed from the stage of transfer of such
suit, appeal or proceeding and shall apply the same law which would have
been applied by the original court.
The Supreme Court’s power to transfer suits is not curtailed or excluded by
Sections 21 and 21 A of the Hindu Marriage Act, 1955. It can transfer suit
 39

for judicial separation by the wife and that by the husband for restitution of
conjugal rights filed in two different states to have joint or consolidated
hearing or trial of both the petitions by one and the same court in order to
avoid conflicting decisions being rendered by two different courts4.
Grounds for transferring the case
The power of transfer must be exercised with extreme caution and
circumspection and in the interest of justice. The court while deciding the
question must bear in mind two conflicting interests:
(i) as a dominus litis the right of the plaintiff to choose his own forum,
(ii) the power and duty of the court to assure fair trial and dispensation of
justice5.
In Indian Overseas Bank v. Chemical Construction6, it was held that
balance of convenience is prima facie consideration for transfer of a suit.
Balance of convenience is neither convenience of plaintiff alone nor of the
defendant alone, but of both. Convenience of witness required for proper trial
of the suit, and the convenience of the particular place of trial having regard
to the nature of the evidence on main points involved in the suit and
doctrine of forum convenience are relevant factors.
7) Institution Of Suits
Meaning of suit
‘Suit’: Meaning within the purview of the Civil Procedure Code, 1908:
The term ‘suit’ has not been defined in the Civil Procedure Code, 1908.
According to Chamber’s 20th Century Dictionary (1983), it is a generic term
of comprehensive signification referring to any proceeding by one person or
persons against another or others in a court of law wherein the plaintiff
pursues the remedy which the law affords him for the redress of any injury
or enforcement of a right, whether at law or in equity. In the Black’s Law
Dictionary (7th Edition) this term is defined as the proceeding initiated by a
party or parties against another in the court of law. According to some other
views, ‘suit’ includes appellate proceeding also; but it does not include an
execution proceeding. Ordinarily, suit under the CPC is a civil proceeding
instituted by the presentation of a plaint.
Essentials of a Suit
There are four essentials of a suit which are explained as follows:
Parties (Order I)
In a suit, there must be at least two parties i.e. the plaintiff and the
defendant. There is no bar as to the maximum numbers of plaintiffs or
defendants. There are two categories of parties viz. necessary party and
proper party. The significance of the necessary party in a suit is that the
presence of such a party is vital to the constitution of the suit and the relief
is sought against such party and without such party, no effective order can
be passed. A proper party is one in whose absence an effective order can be
passed, nonetheless whose presence is necessary for a complete and final
decision on the question involved in the proceeding.
 40

Subject Matter
There must be a subject matter i.e. a set of facts which have to be proved to
enable the plaintiff to get the relief claimed by him. It includes the course of
action. The subject-matter can be movable as well as immovable property
and the details regarding the same has to be given in the plaint by the
plaintiff for a successful filing of his plaint and getting the relief claimed in
the plaint.
Cause of Action (Order II, Rules 3, 6 and 7)
It contains a set of facts or circumstances that the plaintiff is required to
prove before he can succeed. It serves as the foundation of the suit. It
includes all the essential facts which constitutes the right of a plaintiff and its
alleged infringement and thus it is an antecedent to the filing or institution of
any suit. The facts must be mentioned in clear and unambiguous terms. A
person is a party to the suit if there lies a cause of action against him. It is
important to note that every plaint must disclose a cause of action or some
act done by the defendant else the Court is under a duty to reject such a
plaint as per Order 7, Rule 11.
Relief claimed by the plaintiff
Relief is a remedy in legal sense for wrong accrued to the plaintiff. No court
will give relief unless it is specifically claimed by the parties to the suit.
There are two types of reliefs: Specific and Alternative.
Stages Of Suit:
There are different stages in a lawsuit as stated below:
1) Institution of suit
2) Service of summons
3) Written Statement
4) Framing of Issues
5) Production of Evidence
6) Arguments
7) Judgement
8) Decree
9) Execution

2) Institution of suit (Section 26 and Order IV)

Section 26(1), CPC says that every suit shall be instituted by the
presentation of a plaint or in such other manner as may be prescribed. Sub-
section (2) provides that in every plaint, facts shall be proved by affidavit.
The procedural framework relating to the institution of a suit is give below:
i. Preparing the plaint
ii. Choosing the proper place of suing
iii. Presentation of the plaint
Presentation of the Plaint: Commencement of the Suit:
Section 26 and Order 4 contain the provisions relating to the institution of a
suit. Rule 1 of Order 4 goes as:
 41

(1) Every suit shall be instituted by presenting a plaint in duplicate to the

Court or such officer as it appoints in this behalf.
(2) Every plaint shall comply with the rules contained in Order VI and VII, so
far as they are applicable.
(3) The plaint shall not be deemed to be duly instituted unless it complies
with the requirements specified in sub-rules (1) and (2).
Section 26 provides that every suit shall be instituted by the presentation of
a plaint or in such other manner as may be prescribed. Order 4 Rule 1 lays
down the procedure for institution of suit; but does not speak of any ‘other
manner’ for the purpose. The amendment makes it clear that unless the
plaint is filed in duplicate it will be deemed to be incomplete. Sub-rule (3)
has been inserted in order to curtail unnecessary adjournments for due
compliance of the provisions of sub-rules (1) and (2) after the filing of the
plaint.
The plaint may be presented either by the affected person himself, or by his
advocate or by his recognised agent or by any person duly authorised by
him. A proceeding which does not commence with a plaint is not a suit
within the meaning of Section 26 and Rule 1 of Order 4.
I. Time and Place of Presentation:
Generally, the presentation of a plaint must be on a working day and during
the office hours. However, there is no rule that such presentation must be
made either at a particular place or at a particular time. A judge, therefore,
may accept a plaint at his residence or at any other place even after office
hours, though h is not bound to accept it. But if not too convenient, the
judge must accept the plaint, if it is the last day of limitation. Thereafter, the
particulars of a suit will be entered by the court in a book kept for the said
purpose, called the Register of Civil Suits. After the presentation, the plaint
will be scrutinised by the Stamp Reporter. If there are defects, the plaintiff
or his advocate will remove them. Thereafter the suit will be numbered.
II. Registration of Suits:
Rule 2 of Order 4 provides that the Court shall cause the particulars of every
suit to be entered in a book to be kept for the purpose and called the
register of civil suits. Such entries shall be numbered in every year according
to the order in which the plaints are admitted.
3. Parties to a Suit (Order1)
In a civil suit, the presence of both the plaintiff, who files the suit, and the
defendant, who is sued, is necessary. In each case there are two categories;
first one is the necessary party and the other is proper party. A necessary
party is one whose presence is indispensable to the constitution of the suit,
against whom the relief is sought and without whom no effective order can
be passed. A proper party is one in whose absence an effective order can be
passed, but whose presence is necessary for a complete and final decision
on the question involved in the proceeding.
 42

Where the number of plaintiff/defendant is one, no dispute arises regarding

their representation; but some uniform rules become mandatory if this
number crosses this limit. Order 1 contains these rules. These are
enumerated below.
1) Joinder of Parties
a) Joinder of Plaintiffs and
b) Joinder of Defendants
2) Necessary and Proper parties
3) Non-Joinder and Mis-Joinder of Parties
1) Joinder of parties: Rules 1, 2, 3, 3A:
All persons may be joined in one suit as plaintiffs or defendants as the case
may be, where-
a. Any right to relief in respect of , or arising out of, the same act or
transaction or series of acts or transactions is alleged to exist in/ against
such persons, whether jointly or severally or in the alternative; and
b. If such persons brought separate suits, any common question of law or
fact would arise (Rules 1, 3).
Example: Where A assaults B, the latter may sue A for tort, as individually
affects him. The question of joinder of parties arises only when an act is
done by two or more persons or it affects two or more persons. Thus, if A
assaults B and C, or A and B assaults C or A and B assaults C and D, the
question of joinder of parties arises.
The plaintiff may, at his option, join as parties to the same suit all or any of
the persons severally, or jointly and severally, liable on any one contract,
including parties to bills of exchange, hundis and promissory notes (Rule 6).
When the plaintiff is in doubt regarding the joinder of persons from whom he
is entitled to obtain redress, he may join two or more such defendants (Rule
7). It shall not be necessary that every defendant shall be interested as to
all the relief claimed in any suit against him (Rule 5). As per Rule 12(1),
where there are more plaintiffs than one, any one or more of them may be
authorised by any other of them to appear, plead or act for such other in
any proceedings; and in like manner, where there are more defendants than
one, any one or more of them may be authorized by any other of them to
appear, plead or act for such other in any proceeding. Sub-rule (2) says, the
authority shall be in writing signed by the party giving it and shall be filed in
court.
Necessary and Proper parties
A necessary party means that the court cannot pass the effective decree if
they are not joined or absent from that party in the suit. Therefore, without
an impleaded necessary party, the suit can be treated as premature and
liable to be dismissed. Thus necessary party is an essential requirement for
every suit. Without that party, the lawsuit can not be adjudicated.
 43

Necessary parties are those parties who may be a party to the suit but there
is no relief claim from him. For the court to issue an effective and
complete decree to adjudicate the plaintiff’s claim, the presence of the
parties involved is necessary.
 In a suit for partition, all sharers are necessary party,
 In a suit for the declaration to set aside public auction, purchase of
property in a public auction is a necessary party,
 In an action against selection and appointment by an authority,
candidates who are selected and appointed are directly affected and,
therefore, they are necessary parties.
· Misjoinder and non-joinder: Rules 9 and 13:
As per Rule 9 no suit can be defeated by reason of the misjoinder and non-
joinder of parties unless such party is a necessary party. Rule 13 says that
all objections regarding the misjoinder and non-joinder of parties shall be
taken at the earliest possible opportunity and, in all cases where issues are
settled, at or before such settlement.
· Representative Suits: Rule 8:
i. Meaning: In a suit if there are numerous persons having the same
interest in one suit one or more of such persons may, with the permission of
the court, sue or be sued, or may defend such suit, on behalf of, or for the
benefit of, all persons so interested; such a suit is called the ‘representative
suit’.
ii. Object: To facilitate the decision of questions in which a large number of
persons are interested without recourse to the ordinary procedure.
iii. Conditions: As per Rule 8(1), Where there are numerous persons having
the same interest in one suit,—
(a) one or more of such persons may, with the permission of the court, sue
or be sued, or may defend such suit, on behalf of, or for the benefit of, all
persons so interested;
(b) the court may direct that one or more of such persons may sue or be
sued, or may defend such suit, on behalf of, or for the benefit of, all persons
so interested.
iv. Formalities to be followed:
a. In such case, the permission of the Court must be obtained [sub-rule (1)].
b. The plaint must show that the suit is representative in character.
c. The court shall, in every case where a permission or direction is given
under sub-rule (1), at the plaintiff’s expense, give notice of the institution of
the suit to all persons so interested, either by personal service, or, where, by
reason of the number of persons or any other cause, such service is not
reasonably practicable, by public advertisement, as the court in each case
may direct [sub-rule (2)].
d. Any person on whose behalf, or for whose benefit, a suit is instituted, or
defended, under sub-rule (1), may apply to the court to be made a party to
such suit [sub-rule (3)].
 44

e. No part of the claim in any such suit shall be abandoned under sub-rule
(1), and no such suit shall be withdrawn under sub-rule (3) of rule 1 of
Order XXIII, and no agreement, compromise or satisfaction shall be
recorded in any such suit under rule 3 of that Order, unless the court has
given, at the plaintiff’s expenses notice to all persons so interested in the
manner specified in sub-rule (2) [sub-rule (4)].
f. Where any person suing or defending in any such suit does not proceed
with due diligence in the suit or defence, the court may substitute in his
place any other person having the same interest in the suit [sub-rule (5)].
g. A decree passed in a suit under this rule shall be binding on all persons on
whose behalf, or for whose benefit, the suit is instituted, or defended, as the
case may be [sub-rule (6)].

h. For the purpose of determining whether the persons who sue or are sued,
or defend, have the same interest in one suit, it is not necessary to establish
that such persons have the same cause of action as the persons on whose
behalf, or for whose benefit, they sue or are sued, or defend the suit, as the
case may be [Explanation].
Frame of Suit
Order II deals with frame of suit. It has seven rules. Rule 1 generally deals
with frame of suit. Rule 2 provides that the suit to include the whole claim
and all reliefs arising out of one cause of action and its effect for non-
inclusion. Rule 3 provides Joinder of causes of action, whereas Rule 4
mandates that only certain claims are to be joined for recovery of
immovable property and not others. Rule 5 provides that in claims by or
against executor, administrator or heir, personal claims can not be joined.
Rule 6 empowers the Court to order separate trials (split of suits) in case of
joinder of causes of action. Rule 7 mandates that objections as to misjoinder
can be taken at the earliest opportunity.
Before entering upon the the principles of frame of suit, one has to know the
meaning of certain terms:
1. Cause of action– The expression ‘cause of action’ means every fact
or bundle of facts which would be necessary for the plaintiff to prove, if
traversed, in order to support his right to the judgment of the court-See-
Kunjan Nair Sivaraman Nair v. Narayanan Nair and others 1), Dadu Dayalu
Mahasabha, Jaipur (Trust) v. Mahant Ram Niwas and another 2).
2. Joinder of causes of action—It means different causes action can be
joined together in one suit.
3. Frame of suit-It means drafting of plaint in a manner so that the
plaintiff is to plead necessary facts in order to support his right to the
judgment of the court.
4. Misjoinder of causes of action: If two or more causes of action cannot
be joined together in one suit, the same is called misjoinder of causes of
action.
 45

5. Executor: In case of testamentary succession such as Will or Codicil,

the person who made the devise (document of will) is called testator. The
person in whose favour it is made to execute the will, he called the executor.
6. Administrator: In case of testamentary succession such as Will or
Codicil, the person who made the devise (document of will) is called
testator. The person in whose favour it is made to execute the will for
administration of the propertied, he called the Administrator
7. Claims by or against heir: A person who inherits the estate of
deceased person, he is called the heir.
8. Waive: It means a person knowing his right does not enforce it or
remains mute spectator of violation of his right or relinquishes his right, it is
called that he waives his right.
9. The word ‘omission’: It means that party has knowledge but still not
included that the claim or property. Dnyanu Dadu Patil v. Shripati Dadu Patil
deceased by L.Rs. and others 3).
ORDER 2 RULE 1
It provides general provisions of framing of suit. Every suit shall be so
framed or plaint shall be so drafted that: 1. It would afford ground for final
decision upon the subjects in dispute and 2. It would prevent further
litigation concerning them. It is pertinent to mention that on the basis of
such principles, proviso to Section 34 of the Specific Relief Act is enacted.
Order 2 Rule 2 : Suit include the whole claim
Order 2 Rule 2 (1) provides that every suit shall include the whole of the
claim which the plaintiff is entitled to make in respect of the cause of action.
The plaintiff has right to relinquish any portion of his claim in order to bring
the suit within the jurisdiction of any Court. But where a plaintiff omits to
sue in respect of, or intentionally relinquishes, any portion of his claim, he
shall not afterwards sue in respect of the portion so omitted or relinquished
under Rule 2 (2)..
8) Pleadings
Introduction
“Pleadings” are statement of facts in writing drawn up and filed in Court by
each party to a case. As per Order VI, R.1 of Civil Procedure Code,
1908 pleading means plaint or a written statement.
Order VI of the Code deals with the Pleadings. According to Rule 1, Pleading
means plaint or written statement. According to P. C. Mogha, pleading are
statements in writing draw up and filed by each party to a case stating what
his contention will be at trial and giving all such details as his opponents
needs to know for his defence.

Pleading  Plaint
 Written Statement

This rule declares that the pleading are the plaint filed by the plaintiff and
 46

the written statement filed by the defendant and thus the stage of pleading
would mean the institution of plaint till the submission of a written
statement.
Therefore, pleading are statement of parties to communicate their
contention to be adjudicated in trial. This process is the primary process in
the Civil Procedure.
Object of Pleading: The object of pleading was explained by the Supreme
Court in Ganesh Trading Co. v. Moji Ram, AIR 1978 SC 484. Pleading has
following objects:
a) To give each side, intimation of the case of the other so that they are not
taken by surprise.
b) To enable the court to determine the issues between the parties.
c) To diminish expenses and delay in conduct of suits.

In Thorp v. Holdsworth1, the court held that the whole object of pleading is
to narrow down parties to definite issues
Plaint
A plaint is a legal document which contains the written statement of the
plaintiff's claim. A plaint is the first step towards the initiation of a suit. In
fact, in the very plaint, the contents of the civil suit are laid out.
Through such a plaint, the grievances of the plaintiff are spelled out, as well
as the possible causes of action that can arise out of the suit. A plaint which
is presented to a civil court of appropriate jurisdiction contains everything,
including facts to relief that the plaintiff expects to obtain.
Although it hasn't been defined in the CPC, it is a comprehensive document,
a pleading of the plaintiff, which outlines the essentials of a suit, and sets
the legal wheels up and running.
Order VII of the CPC particularly deals with a plaint. A few of the essentials
of a plaint implicit in itself are those only material facts, and not all facts or
the law as such is to be stated, the facts should be concise and precise, and
no evidence should be mentioned.
Object Of A Plaint:
The main Object of plaint is to state the grounds upon which the assistance
of the court is sought by the plaintiff
Rule 1, Order 7 of the code of Civil Procedure, 1908 contains the particulars
of the plaint as stated below
I. The name of the particular court where the suit is initiated.
II. Name, place, and description of the plaintiff's residence
III. Name, place, and description of the defendant's residence.
IV. A statement of unsoundness of mind or minority in case the plaintiff or
the defendant belongs to either of the categories.
V. The facts that led to the cause of action and when it arose.
VI. The facts that point out to the jurisdiction of the court.
VII. The plaintiff's claim for relief.
 47

VIII. The amount allowed or relinquished by the plaintiff if so

IX. A statement containing the value of the subject matter of the suit as
admitted by the case.
Essentials parts of Plaint:
The Code of Civil Procedure does not divide in to any strict parts as such. It
only insists upon certain particulars, which a plaint must contain.
The Particulars Of A Plaint Can Be Divided Into Three Important Parts
Part I : The Heading And Title
Part II : The Body Of The Plaint
Part III : The Relief Claimed and
Part IV : Signature and Verification
Part I : The Heading And Title
Name Of The Court:
The name of the court should be written as the heading. It is not necessary
to mention the presiding officer of the court. The name of the court would be
sufficient. Eg. In the Court of District Judge, Kolkata.
Parties To The Suit:
There are two parties to every suit, the plaintiffs and the defendants. For the
purpose of the suit, the name, place, and description of the residence of
both the plaintiffs and the defendants have to be mentioned in the particular
plaint.
When there are several plaintiffs, all of their names have to be mentioned
and have to be categorically listed, according to their pleadings, or in the
order in which their story is told by the plaintiff.
Minors cannot sue nor can be sued. So if one of the parties is a minor or of
unsound mind, it will have to be mentioned in the cause title.
Title Of The Suit:
The title of the suit contains the reasons for approaching the court and the
jurisdiction before which the plaint Is initiated.
Part II : The Body Of The Plaint
This is the body of the plaint wherein the plaintiff describes his/ her concerns
in an elaborative manner. This is divided into short paragraphs, with each
paragraph containing one fact each. The body of the plaint is divided into
two further parts which are:
Formal Portion:
The formal portion contains the following essentials:
1. A statement regarding the date of cause of action. It is necessary for
every plaint to contain the date when the cause of action arose. The primary
objective behind this is to determine the period of limitation.
2. There should be a statement regarding the jurisdiction of the court. The
plaint must contain all facts that point out the pecuniary or territorial
jurisdiction of the court.
3. The value of the subject matter of the suit must be stated properly in this
part of the plaint.
 48

4. Statement regarding minority.

5. The representative character of the plaintiff
6. The reasons why the plaintiff wants to claim exemptions under the law if
the suit is initiated after the period of limitation.
Substantial Portion:
I.This portion of the plaint must contain all the necessary and vital facts,
which constitute the suit. If the plaintiff wishes to pursue a course of action
on any other grounds, such grounds must be duly mentioned.
II.It should be shown in the plaint that the defendant is interested in the
subject matter and therefore must be called upon by the court.
III.If there is more than one defendant, and if the liability is not joint, then the
individual liability of each and every defendant must be shown separately.
IV.In the same way, if there is more than one plaintiff, and their cause of action
is not joint, then too, the same has to be mentioned separately.
Part III : The Relief Claimed
The last part of the plaint is the relief. The relief claimed must be worded
properly and accurately. Every plaint must state specifically the kind of relief
asked for, be it in the form of damages, specific performance or injunction or
damages of any other kind. This has to be done with utmost carefulness
because the claims in the plaint cannot be backed by oral pleadings.
Part IV : Signature and Verification:
I. The signature of the plaintiff is put towards the end of the plaint. In case
the plaintiff is not present due to any legitimate reason, then the signature
of an authorized representative would suffice.
II. The plaint should also be duly verified by the plaintiff. In case the
plaintiff is unable to do so, his/ her representative may do the same after
informing the court.
III. The plaintiff has to specify against the paragraphs in the pleadings,
what all he/ she has verified by his/ her own awareness of the facts, and
what has been verified as per information received, and subsequently
believed to be true.
IV. The signature of the plaintiff/ verifier, a Where the language of the
plaint is beyond the comprehension of the plaintiff, the same has to be
translated, or made known to the plaintiff, and only after that can he/ she
put his/her signature and get the plaint verified by the Oath Commissioner.
Return Of Plaint
Order VII, Rule 10 states that the plaint will have to be returned in such
situations where the court is unable to entertain the plaint, or when it does
not have the jurisdiction to entertain the plaint.
The courts can exercise the power of returning the plaint for presentation
before the appropriate court if it feels that the trial court itself did not have
the appropriate jurisdiction in the first place.
Once the appellate court finds out that the trial court decided on the civil suit
without proper jurisdiction, such decision would be nullified.
 49

Dismissal Of Suit
If the plaint is to be returned to the parties after its rejection, the court has
to fix a date for the same where the parties can arrive for this purpose.
This was mentioned in Rule 10, inserted by the amendment act of 1976. If
the court does not have the adequate jurisdiction, the proper course is to
return the plaint and not to dismiss it.
When Can A Plaint Be Rejected?
I. A plaint can be rejected under the following scenarios
II. Where the cause of action is not disclosed
III. When the relief claimed by the plaintiff is undervalued, and he/ she is
not able to correct it even after being instructed by the court to do so.
IV. When the relief claimed is proper, but the plaintiff proceeds with the
plaint on a paper which has not been stamped sufficiently and fails to do so
even after the court's instruction.
V. Where the suit stems from a statement which has been essentially barred
by law
Written statement order 8
Introduction:
First of all, we should know that what is written statement. Actually, it is a
pleading of the defendant in the answer of the plaint led by the plainti
against him. It is a reply statement of the defendant in a suit specically
denying the allegations made against him by the plainti in his plaint. The
provision regarding the written statement has provided in the Code of Civil
Procedure, 1908.
Meaning:
The expression Written Statement has not been dened in this code. It is a
term of specic meaning ordinarily signifying a reply to the plaint led by the
plainti. In other words, it is the pleading of the defendant wherein he deals
with the material fact alleged by the plainti in his plaint and also states any
new fact in his favour or takes legal objections against the claim of the
plainti.
Who may be written statement:
A written statement may be filed by the defendant or by his duly authorized
agent. In the case of more than one defendants, the common written
statement led by them must be signed by all of them. But it is sucient if it is
veried by one of them who is aware of the facts of the case and is in a
position to le an adavit. But a written statement led by one defendant does
not bind other defendants.
Time limit for ling written statement:
A written statement should be led within thirty days from the service of the
summons on him. The said period, however, can be extended up to ninety
days,(Rule -1). A defendant should present a written statement of his
defence in the said period.
Defences in written statement:
 50

In written statement defendant can specically deny the allegations made in

the plaint by the plainti against him. Besides this, he also can claim to set-o
any sums of money payable by the plainti to him as a counter defence
(Order 8 Rule 6). Further, if the defendant has any claim against the plainti
relating to any matter in the issue raised in the plaint, then he can
separately le a counter-claim along with his written statement. It is provided
in Order 8 Rule 6A to 6G of the code.
Particulars: Rules 1-5 and 7-10
Drafting a written statement is an art so it should be drafted carefully and
artistically. Before proceeding to draft a written statement it is absolutely
necessary for the defendant to examine the plaint carefully.
Special rules of defence:
Rules 2 to 5 and 7 to 10 deal with special points regarding the ling of
a written statement:
1. New facts, such as the suit is not maintainable, or that the transaction
is either void or voidable in law, and all such grounds of defence as, if not
raised, would take the plainti by surprise, or would raise issues of fact not
arising out of the plaint, such as fraud, limitation, release, payment,
performance or facts showing illegality, etc. must be raised. (Order 8 Rule 2)
2. The denial must be specie. It is not succinct for a defendant in his
written statement to deny generally the grounds alleged by the plainti, but
he must deal specially with each allegation of fact which he does not admit,
except damages.
3. The denial should not be vague or evasive. Where a defendant wants
to deny any allegation of fact in the plaint, he must do so clearly, specially
and explicitly and not evasively or generally.
4. Where every allegation of fact in the plaint, if not denied specically or
by necessary implication, or stated to be not admitted except as against a
person under disability. The court may, however, require proof of any such
fact otherwise than by such admission.
5. Where the defendant relies upon several distinct grounds of defence or
set-o or counterclaim founded upon separate and distinct facts, they should
be stated separately and distinctly.
6. Any new ground of defense which has arisen after the institution of the
suit is a presentation of a written statement claiming a set-o or counterclaim
may be raised by the defendant or plainti in his written statement as the
case may be.
7. If the defendant fails to present his written statement within the time
permitted or relaxed by the court, the court will pronounce the judgment
against him or pass such order in relation to the suit as it thinks t and a
decree will be drawn up according to the said judgment.
8. No pleading after the written statement of the defendant other than by
way of defense to set-o or counterclaim can be led.
 51

Set off (Order VIII, Rule 6]

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

I. A defendant may claim a set-off, if:

II. The suit is for the Recovery of money;
III. The sum of money must be ascertained;
IV. Such sum must be legally recoverable;
V. It must be recoverable by the defendant or by all the defendants, if
not more than one;
VI. It must be recoverable by the defendant from the plaintiff(s);
VII. It must not exceed the pecuniary jurisdiction of the court in which the
suit is brought;
VIII. Both the parties must fill in the defendant's claim to set-off, the same
character as they fill in the plaintiff's
Effects:
When a defendant claims set-off, he is put in the position of the plaintiff as
regards the amount claimed by him. Where the plaintiff doesn't appear and
his suit is dismissed or he withdraws, it does not affect the claim for a set-off
by the defendant and a decree may be passed in his favor if he is able to
prove his claim.
Illustrations:
X sues Y on a bill of exchange. Y alleges that X has wrongfully neglected to
insure Y's goods and is liable to him in compensation which he claims to set-
off. The amount not being ascertained cannot be set-off.

P sues Q on a bill of exchange for Rs. 1500. Q holds a judgment against P

for Rs. 1,000. The two claims being both definite, it may be set-off.
Types of Set Off
Set-off is of two kinds viz., legal set-off and equitable set-off. Rule 6 speaks
of legal set-off only. In contrast to legal set-off, an equitable set-of, can be
claimed for unascertained money but it must arise from the same
transaction. For example, where a servant sues his master for recovery of
amount of salary, the master can claim set-off for loss sustained by him due
to negligence of servant since it arises out of same relationship.

Legal Set Off

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

b. The defendant must claim an ascertained sum of money. A sum of
money due in respect of a disputed transaction cannot constitute an
ascertained sum.
c. That ascertained sum must be legally recoverable from the plaintiff,
i.e., it is not barred by the law of limitation.
d. The plaintiff's claim and the set-off must be claimed in the same
character. The amount must be recoverable by the defendant and if there
are more than one defendant, then by all the defendants. Again, the amount
must be recoverable by the defendant from the plaintiff and if there are
more than one plaintiff, then from all the plaintiffs.
e. The set-off should be within the pecuniary jurisdiction of the Court.
Equitable set-off
Court of Equity in England allowed set-off when cross-demands arose out of
the same transaction, even if the money claimed by way of set-off was an
unascertained sum of money. The Common Law Courts refused to take
notice of equitable claims for they were not ascertained sums. The Courts of
Equity, however, held that it would be inequitable to drive the defendant to
a separate cross-suit and that he might be allowed to plead a set-off though
the amount might be unascertained. Such a set-off is called an equitable
set-off.
In India, the distinction between legal and equitable set-off remains. The
provisions as to legal set-off are contained in Order VIII, Rule 6, C.P.C. The
same has now been enlarged by insertion of Rule 6-A with regard to
counter-claim by the defendant. So far as equitable set-off is concerned it is
provided in Order XX, Rule 19(3), C.P.C., which states that:
The provisions of this rule (relating to a decree for set-off or counter-claim
and an appeal therefrom) shall apply whether the set-off is admissible under
Rule 6 of Order VIII or otherwise.
The provisions of Order VIII, Rule 6, and Rule 6-A are, therefore, not
exhaustive because apart from a legal set-off an equitable set-off can be
pleaded independently of the specific provision of the Code.
Counter Claim
Rule 6A to 6G of Order 8 deals with counter-claim. It is claim made by the
defendant in a suit against the plaintiff. It is a claim independent of and
separable from plaintiff's claim which can be enforced by a cross section.
Counter-claim can be set up in respect of action accruing to the defendant
either before or after the filing of the suit but before the defendant has
delivered his defense or before the time fixed for delivery of his defense has
expired.
Such claim should not exceed the pecuniary limits of the jurisdiction of the
concerned court. The counter-claim is to be treated as a plaint and the
plaintiff can file a written statement in answer to it. Counter-claim can be
filed after filing of written statement.
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In Smt. Shanti Rani Das v. Dinesh Roy it has been held that the right to
file a counter claim is referable to the date of accrual of cause of action. If
the cause of and such action had arisen before or after filing of the suit,
cause of action continued up to the date of filing of the suit and such cause
of action continued up to the date of filing written statement or extended
date of filing plaintiff statement, then such counter claim can be filed even
after filing the written statement.
Who may file counterclaim?
Normally, it is the defendant who may file a counterclaim against the
plaintiff. But incidentally and along with the plaintiff, the defendant may also
claim relief against the co-defendants in the suit. But a counterclaim solely
against co-defendants is not maintainable.
When counterclaim may be set up?
A counterclaim may be set up by a defendant against a plaintiff in respect of
cause of action accruing either before or after filing of the suit, provided
such claim is not barred by limitation.
Effect of counterclaim Such counterclaim has the effect of a cross-suit and
the court can pronounce a final judgment both on the original claim and the
counterclaim. The counterclaim of the defendant will be treated as a plaint
and the plaintiff has a right to file a written statement in answer to the
counterclaim of the defendant.
The effect of the counterclaim is that even if the suit of the plaintiff is
stayed, discontinued, dismissed or withdrawn, the counterclaim will be
decided on merits and the defendant will have a right to get a decree for a
counterclaim as claimed in the written statement. If the plaintiff does not file
any reply to the counterclaim made by the defendant, the court may
pronounce the judgment against the plaintiff in relation to the counterclaim
made against him or make such order in relation to the counterclaim as it
thinks fit.268 The counterclaim shall be treated as a plaint and will be
governed by the rules applicable to plaints. Similarly, a reply filed in answer
to a counterclaim shall be treated as a written statement and governed by
rules applicable to written statements.
Set Off & Counter Claim
The distinction between set-off and counter-claim may now be
noted:
 Set-off is a statutory defence to a plaintiff's action, whereas a
counterclaim is substantially a cross-action.
 Set-off must be for an ascertained sum or must arise out of the same
transaction as the plaintiff's claim. A counter-claim need not arise out of the
same transaction.

 Set-off is a statutory ground of defence and has to be pleaded in the

written statement. It can be sued as a shield and not as a sword. Counter-
claim, on the other hand, does not afford any defence to the plaintiff's claim.
 54

It is a weapon of offence which enables the defendant to enforce his claim

against the plaintiff as effectually as in an independent action. It is a sort of
cross-action.
 If the statute of limitation is pleaded to a defence of set-off, the
plaintiff in order to establish his plea has to prove that set-off was barred
when the plaintiff commenced the action. It is not enough to prove that it
was barred at the time when it was pleaded. In the case of a counter-claim,
it is enough for the plaintiff to prove that the counter-claim was barred when
it was pleaded.
 An equitable set-off is a claim by the defendant in defence, which
generally cannot exceed the plaintiff's claim. A counter-claim the defendant
may, however, exceed the plaintiff's claim, being in nature of the cross
action. Under the provision rule 6-F of Order 6, if in any suit a set off or
counter claim is established as a defence against plaintiffs claim and any
balance is found due to the defendant as the case may be the court may
give judgment to the party entitled to such balance.
9) Temporary Injunction (Order 39 of the Code Of Civil Procedure,
1908.)

Injunction – meaning and object

An Injunction is an equitable remedy which is “a judicial process that
compels a party to refrain from doing or to do a particular act or thing”. If
any person disobeys the Order of Injunction passed by the Competent Court
then there can be stiff monetary penalties and even imprisonment in certain
instances. The primary purpose of granting interim relief is the preservation
of property in dispute till legal rights and conflicting claims of the parties
before the court are adjudicated. However, Injunction can also be modified
or dissolved if circumstances change in future. Section 94, 95 and Order 39
of the Civil Procedure Code precisely talks about the Injunctions and
whereas, the temporary and perpetual injunctions are defined under section
36 to 42 of the Specific Relief Act.
Kinds of injunction
Injunctions are given in many different kinds of cases. various types of
Injunctions as follows:
 Prohibitory Injunction: The Competent Court can grant the
Prohibitory Injunction to restrains or forbids a person from doing some act
i.e. the order is passed as not to do any act. Prohibitory Injunction is also
known as preventive or restrictive Injunction.
For Example: A and B are residing in the same Society. B wanted to
trespass the A premises unlawfully. A claim before competent court for
Injunction to direct B that “B should not enter A premises”. Telling not to do
a certain kind of act is a Prohibitory Injunction.
 Mandatory Injunction: The Competent Court can grant the
Mandatory Injunction to do some positive act or compels, commands or
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orders some person to do something in a particular manner. Section 39 of

Specific Relief Act, 1963 does not define but categorically deals with the
grant of Mandatory Injunction. In mandatory Injunction two elements has to
be taken into consideration before granting Mandatory Injunction:
 There must be an obligation on the part of the defendant to perform
certain acts, the breach of which obligation, must be alleged by the plaintiff.
 Relief must be enforceable by the court.
Example: “A” a tenant, without the permission of the Landlord has built a
garden terrace which is an addition to the rented house. According to the
leave and Licence agreement, “A” has to take prior permission of the
Landlord to do any type of alterations/addition/changes to the rented house.
So here “B” may seek a mandatory injunction to demolish the garden
terrace which “A” has built without the permission of the Landlord.
So basically, Mandatory Injunctions are sometimes availed of as reliefs in
the nature of ‘quia timet’, that is, in a proper case, mandatory injunction
may be granted when there is a threat of infraction of the plaintiff’s right
before the infraction has actually occurred.
 Permanent or Perpetual Injunctions: Perpetual/Permanent
Injunctions is granted by the courts to restrain the party forever from doing
the act complained of. However, this perpetual or permanent injunction can
only be granted after final hearing and decree has been passed by the court
and this is completely decided on the merits of the case. Permanent or
Perpetual Injunctions are governed by section 38 to 42 of Specific Relief Act,
1963. It determines the rights and liabilities of the parties finally.
For example: “A” has rented his Flat to “B” who is a tenant, and ‘B’ has
failed to pay the rent since the last 2 months. ‘A’ may request the court to
grant an injunction against the tenant’s continued use of the property and
ask for eviction from A’s property.
 Temporary Injunction (Order 39 of the Code Of Civil Procedure,
1908.)
The temporary Injunction is been granted by the Court when the Defendant
is about to the make some injury to the property of the Plaintiff or threatens
the Plaintiff to dispossess the property or creates a thirty party interest in
the property, then in such situation, the Court may grant a temporary
injunction to restrain the Defendant to do such an act or make other order to
prevent the dispossession of the plaintiff or prevent the causing of injury to
the plaintiff in relation to any property in dispute or creating any thirty party
rights in the property.
Who may apply for temporary injunction and against whom
injunction may be issued
An application for interim injunction along with affidavit may be made both
Plaintiff or Defendant. Order 39 Rule (1) a, any party to the suit can apply
for a Temporary Injunction.
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An Injunction may be issued only against a party and not against a stranger
or third party. Further, the injunction cannot be issued against the Court or
Judicial Officers.
What are the basic principles of temporary injunction
Granting the temporary injunction is the exercise of the discretion which
should be in judicial manner. No hard and fast rule can be laid down for
guidance of the court to that effect. Therefore it is well settled that, before
granting the Temporary Injunction, the Judge has to consider whether the
Application is falling into below-mentioned categories/ has Plaintiff shown
following points[3]:
1. Prima Facie Case ---
2. Irreparable Injury ---
3. Balance of Inconvenience ----
4. Other Factor ---
Ground for granting temporary injunction from court
Under Section 95 of CPC, it is specifically mentioned that the temporary
injunction may be granted in any suit wherein the Court is satisfied that
there are sufficient grounds to grant the temporary injunction. If the Plaintiff
fails to prove the sufficient grounds in his application then the Court may
pass the suitable compensation to the defendant, in case the Defendant is
claiming in his application.
Section 95 read with Order 39 Rule 1 and 2 empowers the Court to
pass the temporary injunction[11]:
 When there is a reasonable apprehension and danger of alienation or
disposal of property by any party to the suit or by wrongful waste of the
property; or
 When there is an apprehension of alienation or disposal of the property
to defraud creditors; or
 Where Defendant threatens to dispossess the Plaintiff or otherwise
causes injury to the interest of the Plaintiff or otherwise causes injury to the
interest of Plaintiff in relation to the disputed property; or
 When the Defendant is about to commit a breach of contract; or
 Any other injury is likely to be caused or likely to be repeated; or
 Where the Court is of the opinion that for protection of interest of any
party to the suit or in the interest of justice injunction or stay is required and
necessary.
Temporary Injunction when cannot be granted
 To restrain any person from prosecuting a judicial proceeding at the
institution of the suit, in which injunction is sought, unless restraint is
necessary to prevent multiplicity of proceedings.
 to restrain any person from instituting or prosecuting any proceeding
in a Court not subordinate to that, from which injunction is sought.
 to restrain any person from applying to any legislative body,
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 to restrain any person from instituting or prosecuting any proceeding

in a criminal matter,
 to prevent the breach of a contract the performance of which could not
be specifically enforced.
 to prevent on the ground of nuisance, and act of which it is not
reasonably clear that it will be a nuisance.
 to prevent a continuing breach in which the plaintiff has acquiesced,
 when equally efficacious relief can be certainly be obtained by any
other usual mode of proceeding except in case of breach of trust,
 when conduct of the plaintiff or his agents has been such as to
disentitle him to the assistance of the Court.
 when the plaintiff has no personal interest in the matter [12].
Conclusion
In view of the aforementioned, it can be determined that grant of temporary
injunction cannot be requested by the party as a matter of right nor can be
denied by the Court arbitrarily. The injunction is an equitable remedy and
attracts the application of the maxim “he who seeks equity must do equity”.
The Court has complete discretion to grant an injunction or to refuse it. The
discretion to be exercised by the Court is shown by the principles mentioned
hereinabove and depends on the facts and circumstances of each case. The
relief cannot be claimed as an affair of right however worthwhile the
applicant’s case may be. The power to grant an injunction must, therefore,
be exercised with the utmost prudence, vigilance, and care.
10) Special Suits
SUITS BY INDIGENT PERSONs (Order 33)
Introduction
Taking into consideration the poverty rate of India, it is quite challenging for
the deprived section of society to institute a case in court and bear all the
litigation expenses. But simply saying that these vulnerable people don’t
stand a chance in court, is not the solution. One such solution is enshrined
under Article 39A of the Indian Constitution that protects the interests of
vulnerable segments of society. It provides free legal aid to the poor and
weaker sections of society and ensures justice for all. Besides Article
39A, Articles 14 and 22 (1) of the Indian Constitution provide that it is
obligatory on the part of the State to ensure equality before the law and
provide a legal system that aims at promoting justice.
Who is an indigent person?
A person is an indigent person-
(a) if he is not possessed of sufficient means to enable him to pay the fee
prescribed by law for the plaint in such suit, or
(b) where no such fee is prescribed, if he is not entitled to property worth
one thousand rupees other than the property exempt from attachment in
execution of a decree, and the subject-matter of the suit.
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Any application may be filed by natural person or any judicial person who all
fill within the ambit and are not barred by law in any manner.
In the case of Mathai M. Paikeday v. C.K. Antony, (2011) 13 SCC
174 the Supreme Court held that moreover, the factors such as person’s
employment status and total income including retirement benefits in the
form of pension, ownership of realisable unencumbered assets, and person’s
total indebtedness and financial assistance received from the family
members or close friends can be taken into account in order to determine
whether a person is possessed of sufficient means or indigent to pay
requisite Court fee. Therefore, the expression “sufficient means” in Order 33
Rule 1 of the Code of Civil Procedure contemplates the ability or capacity of
a person in the ordinary course to raise money by available lawful means to
pay Court fee.
Procedure to file a suit as an indigent person
Before filing a suit as an indigent person begins, it is important to add all the
relevant contents in the application seeking permission to be an indigent
person [Rule 2]. As per Rule 2 of Order XXXIII, the application must
include the particulars similar to what is mentioned in the plaint and all
movable or immovable properties of the indigent person/applicant along with
its estimated value.
As per Rule 3 The indigent person/applicant shall himself in person present
the application before the court. In case, such a person is exempted from
appearing in the court, an authorized agent may present the application on
his behalf. In certain circumstances where there are two or more plaintiffs,
the application can be presented by any of them. As per Rule 4 The suit
begins as soon as the application to sue as an indigent person is duly
presented before the court. Subsequently, the indigent person/applicant is
examined by the court. However, if the applicant is being represented by his
agent, then in such a case, the court may examine the applicant by the
commission.
Rejection of application
As per Rule 5 of Order XXXIII of CPC, the court will prima facie reject an
application seeking permission to sue as an indigent person in the following
cases:
1. In case when the application is not framed and presented in the
prescribed manner. Here, the term ‘prescribed manner’ implies that the
application must abide by Rule 2 and Rule 3 of Order XXXIII. Rule 2 and
Rule 3 deal with the contents of the application and its presentation
respectively.
2. The application can be rejected by the court in case the applicant is
not an indigent person.
3. The application can be rejected by the court when the applicant has
fraudulently disposed of any property within two months before the
presentation of the application.
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4. The court possesses the power to reject the application filed by an

indigent person in an instance where there is no cause of action.
5. In case, where the applicant has entered into an agreement with any
third party and such agreement pertains to the subject matter of the suit
wherein the other party (other than the applicant) obtains interest, then, it
is one of the reasons for rejection of the application. It shows the applicant’s
intention to defraud the court.
6. Rejection of application is done when the allegations indicate that the
suit is barred by any law.
7. Rejection of application is done in cases where any other individual
enters into an agreement with the applicant to help him financially in the
litigation.
Order 33 Rule 6 provides that the court is required to issue a notice to both
the opposite party and the Government pleader. Following which a day is
fixed on which evidence is received. On such a day, the applicant presents in
the form of proof about his indigency. The opposite party or the Government
Pleader can present their evidence opposing the applicant’s indigency.
Order 33 Rule 7 provides for the procedure to be followed at hearing of the
application. The court shall examine the witnesses (if any), produced by both
the parties and hear arguments on the application or evidence (if any)
admitted by the court. Subsequently, the court will either allow the
application or reject it.
Order 33 Rule 8 explains the procedure to be followed after the admission
of the application. The application after being admitted has to be numbered
as well as registered. Such an application will be considered as a plaint in a
suit. Subsequently, such a suit shall proceed in the same manner as an
ordinary suit does.
REVOCATION OF PERMISSION: RULE 9
Order 33 Rule 9 states that the court has an option to revoke the
permission granted to the plaintiff to sue as an indigent person. The court
can utilise this discretionary power on receiving the application by the
defendant or by the government pleader, in the following circumstances:
1. Where the applicant is guilty of vexatious or improper conduct in the
course of the suit; or
2. Where the applicant’s means are such that he will not continue to sue
as an indigent person; or
3. Where the applicant has entered into an agreement under which
another person has obtained an interest in the subject matter of the suit.
GRANT OF PERMISSION TO SUE AS INDIGENT PERSON: RULE 9A
 Rule 9A of the Code provides that the court will assist the indigent
person by assigning him a pleader. A pleader is a person who is entitled to
appear and plead on behalf of other persons in the court.
COSTS WHERE INDIGENT PERSON SUCCEEDS: RULE 10
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 Where the plaintiff succeeds in the suit, the Court shall calculate the
amount of court-fees which would have been paid by the plaintiff if he had
not been permitted to sue as an indigent person; such amount shall be
recoverable by the State Government from any party ordered by the decree
to pay the same and shall be a first charge, on the subject-matter of the
suit.
PROCEDURE WHEN INDIGENT PERSON FAILS: RULE 11
 Where the plaintiff (indigent applicant) fails or his suit abates, the
court shall order him to pay the court fees and costs.
REALIZATION OF COURT FEES: RULE 14
 Where an order is made under rule 10, rule 11 or rule 11A, the court
shall forthwith cause a copy of the decree or order to be forwarded to the
Collector who may, without prejudice to any other mode of recovery, recover
the amount of court-fees specified therein from the person or property liable
for the payment as if it were an arrear or land revenue.
Appeal (Order 44)
 An order rejecting the application to sue as an indigent person is
appealable. Also when a person who is an indigent wants to file an appeal he
can make an application under order 44 C.P.C.
Conclusion
It has been observed that Order XXXIII, permits the destitute, impoverished,
and downtrodden, who meet the criteria of an indigent person as provided
by Order XXXIII, to seek justice by exempting them from paying the
required Court fees. Order XXXIII further authorizes such poor people to file
a suit in their own name. The court at the outset itself while deciding the
application must take into account the persons having sufficient means and
outrightly reject them to sue as indigents. The permission to file suit as
indigent persons must be carefully given to those who face financial
constraints and lack basic resources as access to justice can sometimes also
be in the form of injustice.
11) Inter-Pleader Suits (Section 88 and Order XXXIII)
Interpleader suits
Section 88 of CPC, 1908 provides for interpleader suits. The word ‘To
Interpleader’ implies ‘to litigate with each other to settle a point concerning
the third party. The procedure to institute an Interpleader Suit is given
under Order 35 of CPC, 1908. An interpleader suit is defined as a suit
wherein no dispute is between the parties; namely the plaintiff and the
defendant, but the dispute is actually between the defendants themselves,
who inter-plead against each other. One can differentiate between an
original suit and an interpleader suit as the former is a dispute between
plaintiff and defendant whereas the latter is between defendants. In such
types of suits, the plaintiff is least attentive towards knowing the subject
matter of the suit. However, the plaintiff in such a suit must be in a position
of impartiality/ non-arbitrariness.
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The reason behind filing an interpleader suit is to get the claims of rival
defendants adjudicated. In the case of Groundnut Extractions Export
Development Association vs State Bank Of India, “the interpleader suit was
understood as a process wherein the plaintiff calls upon the rival claimants
to appear before the court and get their respective claims decided. The
decision of the court in an interpleader suit affords indemnity to the plaintiff
on payment of money or delivery of property to the person whose claim has
been upheld by the court”.
Test
To decide whether a suit is an interpleader suit or not, the court must
specifically look into the prayer clause in the plaint. In Groundnut
Extractions Export Development Association vs State Bank Of
India, the court opined that “A suit does not become an interpleader suit
merely because the plaintiff requires the defendants to interplead with each
other as regards one of the prayers in the plaint”.
Who can file interpleader suits?
In National Insurance Co. Ltd. vs Dhirendra Nath Banerjee And Anr, it
was observed that one can file an interpleader suit in case there exists two
or more than two individuals claiming adversely to one another for some
debt, money, movable property, or immovable property, from a person who
does not claim any interest therein expect the charges and costs incurred by
him that person is also ready to pay the same to the rightful claimant. In
simple terms, an interpleader suit can be filed by: Any person who has no
interest in any debt, money, or, other property (movable or immovable), the
person excludes the charges and costs incurred by him and lastly that
person is also ready to pay the debt, money, or, other property to the
rightful claimant.
Who cannot file interpleader suits?
Order 35, Rule 5 of the CPC, 1908 provides that, neither an agent can sue
his principal, nor a tenant can sue his landlord to compel the principals and
landlords to interplead with persons other than persons claiming through
these principals and landlords.
Procedure
The procedure to file an interpleader suit is given under Order 35 CPC.
1908. Order 35 Rule 1, 1908 provides that the interpleader must particularly
mention in his plaint that,
(i) The plaintiff do not claim any interest in the subject matter of the dispute
except the costs and charges
(ii) The claims that are mentioned by the defendants severally
(iii) No collusion is observed between the plaintiff and any of the
defendants.
Apart from the aforementioned claim, the interpleader can also mention
other statements as well.
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 Order 35, Rule 2 of CPC, 1908, gives the court discretionary power
whereby if a thing is claimed and it is capable of being paid into the court,
then, the plaintiff has to deposit such an amount or thing before the court.
In case, such a thing is a property, then the property shall be placed in
court.
 Order 35, Rule 3 of CPC, 1908 provides that in an interpleader suit if
any of the defendants sue the plaintiff with regards to the subject matter of
the suit, then in such case, the court where the suit is instituted against the
plaintiff is pending, will stay the proceedings in that suit as against the
plaintiff.
 Order 35, Rule 4 of CPC, 1908 gives the court discretionary power to
declare at the first hearing itself, the fact that the plaintiff is discharged from
all liabilities and award the plaintiff his costs and dismiss him from the suit.
But, in case the court believes that to uphold justice, propriety, and
convenience, the inclusion of all parties (plaintiff and defendant) to the suit
be retained, then, the court in such will not discharge the plaintiff till the
final disposal of the suit.
 Order 35, Rule 5 of CPC, 1908 states that the agents, as well as the
tenants, won’t be permitted to file an interpleader suit against their
principles or landlords respectively.
12) Suits by or Against Government (Section 79 - 82, Order XXXVII)
Introduction
Sections 79 to 82 and order 27 of the Code lay down the procedure where
suits are brought by or against the Government or public officers. The
provisions, however, prescribe procedure and machinery and do not deal
with rights and liabilities enforceable by or against the Government.
Substantive rights are to be determined in accordance with the provisions of
the Constitution. In ordinary suits, i.e., suits between individuals and
individuals, notice need not be given to the defendant by the plaintiff before
filing a suit. Section 80 of the Code however, declares that no suit shall be
instituted against the Government or against a public officer in respect of
any act purporting to be done by such public officer in his capacity, until the
expiration of two months next after notice in writing has been delivered to,
or left at the office of concerned department of the Government.
Scope of Section 79
For the purpose of better understanding of Section 79 of Civil Procedure
Code, there arises a need for further fragmentation of the Section into
various subtopics like that of the jurisdiction of Section 79 and the institution
of suit against the railways which will be looked into in the next part of this
article.
Section 79
Section 79 lays down the procedure whereby the suits are brought by or
against the government but at the same time, it does not deal with the
rights and liabilities enforceable by or against the government body [3]. In
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the case of Jehangir v. Secretary of State [4], an important observation was

made which was that this section gives no cause of action but only declares
the mode of the procedure when the cause of action arises.
Jurisdiction
Under Section 79, only the court within whose local limits, the cause of
action arose, has the jurisdiction to try the suit and otherwise it cannot. In
the case of Dominion of India v. RCKC Nath & Co. [5], it was held that words
like ‘dwell’ or ‘reside’ or ‘carry on business’ which are mentioned in Section
18, 19 and 20 of code, do not apply to the government [6].
Suit against Railway
If the railway is administered by the union of India or a State, then any suit
to enforce a claim against railway administration can be brought against the
Union of India or State, and this may not include making the railway
administration a part of the suit. But on the other hand whenever there is a
requirement for a suit for freight for carrying goods, then such a suit can be
instituted by the Union of India, and this was held in the landmark case
of Union of India v. RC Jall [7].
In the case of Secretary of State v. Rustom Khan [8], there was a significant
observation made regarding the liability to be sued, under Section 79 of
CPC. No suit could lie against the East India Company in respect of the act of
state or acts of sovereignty, and therefore no suit in respect of such acts
would be competent.
Section 80
This part of the article will include under its ambit the detailed analysis of
Section 80 of Civil Procedure Code, and for the purpose of better
understanding, the subtopics are to be studied by breaking them down
under the Section of nature and liability, contents of the notice, effect of
non-compliance and waiver of notice.
Nature and Object
The object laid down by this Section is- there should be an opportunity
conferred on the part of the Secretary of the State or the Public officer to
reconsider his legal position in order to make amends or settle down the
claim if so advised. This can further be done without litigation or afford
restitution or without recourse to court of law [9]. Whenever a statutory
notice is issued to public authorizes, they are required to further take notice
in all seriousness and they are not required to sit over it and force the citizen
to the redundancy of litigation.
Contents of the Notice
Notice under Section 80, is required to contain the following aspects: name,
description, residence of the plaintiff, the cause of action and lastly the relief
which the plaintiff claims. Also, the notice is required to convey to its
recipients, sufficient information to enable him to consider the claim, which
was held in Union of India v. Shankar Stores [10]. The above-mentioned
 64

particulars should be given in such a way that, it enables the authorities to

identify the person giving the notice.
Effect of Non-Compliance
Non-compliance with the requisites of this Section or any omission in the
plaint which is required would result in the rejection of the plaint under
Order 7, Rule 11. If the suit is against a public official and a private
individual, and no notice is served on the public officer, the plaint is not to
be rejected but the suit is carried on with the name of the public officer
struck off.
Waiver of Notice
As the requirement of the notice is just procedural and not substantive, and
as it is for the benefit of the public officer or the government, it is open to
government and public officers to waive it. If the defendant wants to rely on
the invalidity of the notice, it is for him to raise a specific issue on the point,
this was held in the case of Lalchand v. Union of India [11].
Order XXVII
1- Suits by or against the government- It should be noted that in any suit by
or against the government, the plaint or the written statement should be
signed by such a person, as the government by general or special order,
appoint in this behalf. State of Rajasthan v. Jaipur Hosiery Mills [12], in this
case, it was held that the sanction to sign must be prior to the institution,
and if not complied with this, the signing shall be by an incompetent person,
and further, issuing of a retrospective sanction will not preserve the defect.
Government pleader is an agent under the order 27 of CPC. The government
pleader acts as an agent for receiving processes issued against the
government. Also he is the only person to intimate the court that he is
representing the government and no stamped power of attorney or
vakalatnama is required for the same [13].
Lutfar Rahman v. State of West Bengal [14]. In the aforementioned case, it
was held that when a person other than the government pleader wants to
act as an agent, it is possible only when the government agent intimates the
Court that the former is acting under his directions. Rule 5 of Order 27, has
been discussed in the next segment of this article.
2- Attendance of person being able to answer the questions related to suits
against the government- The court may, in any case where government
pleader is not accompanied by person on the part of the government and if
he is able to answer the questions relating to suit, the court may direct the
attendance of that person [15].
Comments and Suggestions
The amendment made in Section 80 is seen as that of a significant one, as it
has acted as an added advantage while dealing with the case, clause (2) and
(3) were added to Section 80 by the amendment of 1976. Sub Clause (2)
has been inserted to permit the institution of the suit without notice, but it
must be accepted only after giving a reasonable opportunity of showing
 65

cause in respect of relief claimed [16]. Sub-section (3) on the other hand
prohibits the dismissal of a suit where the notice has been served but suffers
from certain technical deficiencies.
It should also be taken into consideration that there exist various instances
where there were widespread abuse and misuse of the concerned section by
the government and public officials in order to dispose of the litigation on the
grounds of technicality, and this aspect of the provision should be given
more attention in order to overcome the negative aspects which exist in it.
Moreover, sub-section (3) was included in the Section in order to offer a
better clarification that no suit against the government or a public officer can
be dismissed merely on the grounds of existence of defect or error in the
notice.
Conclusion
Hence, all the three provisions which bring to light the various procedures
and rules involved in the suit by or against the government or a public
officer have been discussed and analyzed in detail. It can be said that the
applicability of these sections must be determined by the law as it stands
[17]. Further, if the procedure lay down by the rule in these sections is not
followed, then the court is to proceed with the footing that there is no
appearance of government pleader on behalf of the public officer. And lastly,
the rules laid down in Order 27 are to be strictly abided by while filing a suit.
13) Garnishee Order
A Garnishee Order is an order issued by court under provisions of Order 21,
Rule 46 of the Code of Civil Procedure, 1908. The concept of
‘Garnishment’ has been introduced in civil procedure code by the
amendment Act, 1976 and is a remarkable piece of legislation. This term has
been derived from the French word ‘garnir‘ which means to warn or to
prepare.
Garnishee Order is an order passed by an executing court directing or
ordering a garnishee not to pay money to judgment debtor since the latter is
indebted to the garnisher (decree holder). It is an Order of the court to
attach money or Goods belonging to the judgment debtor in the hands of a
third person.
Objective
The primary reason and objective behind garnishee orders are to protect the
interest of the judgment creditor or decree-holder. Its objective is to make
debt due to the judgment debtor directly available to the judgment creditor
or decree-holder in the execution of the suit through the court of law without
driving him to the suit. Order 21 rule 46 A of the code provides that if a
debt is due to principal debtor or a party whom against decree has been
passed then it must be directly paid to the decree-holder by the order of the
executing court to avoid the multiplicity of the suit in the Indian judiciary.
 66

Powers of the court and scope of order 46 A

The competent court of law has been granted immense power which is
discretionary in nature to pass Garnishee order so that it can benefit the
decree-holder and act as a settlement of debt between the parties. It is
generally passed by the court to protect the interest of the decree-holder
and settle the debt between the principal debtor and garnishee.
Preventing a garnishee order
46A. NOTICE TO GARNISHEE.
(1) The Court may in the case of a debt (other than a debt secured by a
mortgage or a charge) which has been attached under rule 46, upon the
application of the attaching creditor, issue notice to the garnishee liable to
pay such debt, calling upon him either to pay into Court the debt due from
him to the judgment-debtor or so much thereof as may be sufficient to
satisfy the decree and costs of execution, or to appear and show cause why
he should not do so.
(2) An application under sub-rule (l) shall be made on affidavit verifying the
facts alleged and stating that in the belief of the deponent, the garnishee is
indebted to the judgment-debtor.
(3) Where the garnishee pays in the Court the amount due from him to the
judgment-debtor or so much thereof as is sufficient to satisfy the decree and
the costs of the execution, the Court may direct that the amount may be
paid to the decree-holder towards satisfaction of the decree and costs of the
execution.
14) Mesne Profits (Section 2(12) )
Section 2(12) of the Code of Civil Procedure, 1908 defines the term
“mesne profits”. The Delhi High Court in the notable case of Phiraya Lal Alias
Piara Lal vs Jia Rani And Anr (1973) interpreted the meaning of the term
“mesne profit” by observing that when a party claims damages to recover
the loss resulted from wrongful occupation of immovable property by a
trespasser that originally belonged to the party then such damages will be
known as mesne profits. The definition provided by Section 2(12) includes
the exception of mesne profits which is the profits obtained from the
improvements made by the wrongful possessor in the property will not fall
under the ambit of mesne profits. The three significant takeaways from
Section 2(12) of the Code have been laid down hereunder;
1. It is to note that the definition has attached importance to due
diligence for obtaining mesne profits.
2. Mesne profits can only be awarded if the property in concern was
unlawfully occupied thereby depriving the original owner of his rights.
3. Interest is a fundamental part of mesne profits under Section 2(12).
Order XX Rule 12 of the Code of Civil Procedure, 1908 lays down the
provision for the passing of the decree by a competent civil court where
there exists a suit for recovery of immovable property possession, rent, or
mesne profits. Put simply, a civil court while presenting the rights of the
 67

parties involved in a suit concerning mesne profits, will rely on Rule 12 of

Order XX.
Calculation of mesne profit:
After gaining an idea about mesne profits, it is now relevant to know as to
how mesne profits are calculated. The answer to this will be different from
case to case basis and as interpreted by the courts of law. If one goes by the
provision, it gets clear that there exists no fixed rule for assessing mesne
profits. Therefore, the scope for assessment of mesne profits has been left in
the hands of the courts. It is thus ideal to discuss this section of mesne
profits by means of case laws.
15) Law Of Limitation
The Code of Civil Procedure confers a right to appeal, but does not prescribe
a period of limitation for filing an appeal. The Limitation Act, 1963, however,
provides the period of filing up appeals. It states that the appeals against a
decree or order can be filed in a High Court within ninety days and in any
other court in thirty days from the date of the decree or order appealed
against.
The Law of Limitation signifies to prevent from the last date for different
legal actions which can take place against an aggrieved person and to
advance the suit and seek remedy or righteous before the court. Where a
suit is initiated after the bar of limitation, it will be hit by the law of
limitation. The main and the fundamental aim of the law of limitation is to
protect the lengthy process of penalizing a person indirectly without doing
any offence.
Object of the Act
The Law of limitation prescribes a time period within which a right can be
enforced in a Court of Law. The time period for various suits has been
provided in the schedule of the Act. The main purpose of this Act is to
prevent litigation from being dragged for a long time and quick disposal of
cases which leads to effective litigation. As per the Jammu and Kashmir
Reorganisation Act, 2019, provisions of the Limitation Act will now apply
to the whole of India. The Limitation Act, 1963 contains provisions relating
to the computation of time for the period of limitation, condonation of delay,
etc. The Limitation Act contains 32 sections and 137 articles and the articles
are divided into 10 parts.
Limitation Bars Remedy
Section 3 lays down the general rule that if any suit, appeal or application is
brought before the Court after the expiry of the prescribed time then the
court shall dismiss such suit, appeal or application as time-barred. The law
of limitation only bars the judicial remedy and does not extinguish the right.
In other words, It means that the statute of limitation prescribes only the
period within which legal proceedings have to be initiated. It does not
restrict any period for setting up a defence to such actions. Hence, the
 68

original right to suit is not barred. However, Section 27 is an exception to

this rule.
The Supreme Court in Punjab National Bank and Ors v. Surendra Prasad
Sinha held that the rules of limitation are not meant to destroy the rights of
the parties. Section 3 only bars the remedy but does not destroy the right
which the remedy relates to.
In case of Against the Judgement in As 15/1996 v. K.J Anthony, the Court
held that a defendant in a suit can put forward any defence though such
defence may not be enforceable in the court, for being barred by limitation.
It was held in Bombay Dyeing and Manufacturing v. State of Bombay that
the statute of limitations only bars the remedy but does not extinguish the
debt.
Limitation Does Not Bar Defence
The law of limitation does not restrict the defendant if he raises a legitimate
plea in his defence even though the suit is time-barred. It was held in Rullia
Ram Hakim Rai v. Fateh Singh, the bar of limitation does not stand in the
way of defence. It only bars action and it is only its recovery that is time-
barred. There is no provision that prohibits or prevents a debtor from
clearing his time-barred outstandings.
16) Legal Disability Under Limitation Act, 1963
Section 6 of Limitation Act, 1963 lays down legal disability as an exception
to the limitation period. If a person who is entitled to institute a suit or an
application, at the time when the prescribed period is running, is a minor,
insane, or an idiot, such person may file the suit or application within the
same period once such disability has ceased to exist. Further, if a person is
affected by two disabilities at once, or if, before one disability could cease,
he is affected by another, then he may file a suit or application once both
the disabilities have ceased to exist. Also, if a person’s disability causes him
to die, then a legal representative of such person is entitled to file the suit or
application.
If the legal representative is also affected with a disability at the time of
death of the person whom he represents, the suit or application may be filed
once the disability(s) ceases to exist. Such disability must be existing at the
time from when the period of limitation is to be calculated.
Kinds Of Legal Disabilities
Section 6(1) of the Limitation Act, 1963 provides three kinds of legal
disabilities which are as follows:
1. Minor
2. Insane
3. Idiot
The first of these conditions for legal disabilities are minor that has to
do with the age of an individual. According to Section 3, Indian Majority Act,
1875[3] an individual is said to be a major when he or she is eighteen years
old. The calculation of the age has to be done after taking into consideration
 69

following two points which are provided under Section 3(2) of the Indian
Majority act:
1. The day has to be included as a whole day on which an individual is
born.
2. He or she is therefore said to have been a major when the 18th
anniversary of that day begins.
The Majority Act, 1875 can be referred to as secular because it can apply to
an individual practising any religion. The majority age can be considered
something else other than eighteen years if a personal law states something
else. A child in the womb is also considered as a minor. However, it is also
taken into consideration by the Majority Act that where the courts have
taken into account supervision of minors life and property and therefore
appointed a guardian for the welfare of the minor before a person is
eighteen years old then the age of minority is extended to 21 for the
individual in question.
The second condition for legal disability is insanity. In the case
of S.K.Yadav v. State of Maharashtra, the concept of insanity has been dealt
with in detail by the SC. It was held by the court that only legal insanity is
recognised by the courts and not the medical insanity. There is a
considerable difference between the two. There is no specific test to prove
legal insanity but even if medical is proven medically or in lower court still it
shall be proved in the higher court. To see whether a particular person is
insane or not, we have to take into consideration the behaviour, antecedent,
and attendant and subsequent to the event.
Idiocy is when the person is not able to count the days of the week, unable
to tell the days of the week, has non-sane memory since birth and is unable
to count twenty.
A lunatic suffers from bouts of such attacks in between what is termed as
periods of sanity i.e. there are times when he can control his senses but
there are occasions where he/she functions in an erratic manner, example-
epilepsy. Madness is seen as permanent. Lunacy and madness are termed
acquired insanity while idiocy is considered as natural insanity that is while a
person can turn lunatic at any time in his lifetime, a person is an idiot since
his/her birth.
Rules Relating To Legal Disability In Limitation Act
Section 6
The rule relating to minor is that the time should not run against a minor.
Provision for the fresh starting point of limitation is not provided under this
section. This ensures that an individual with an impairment can get an
extension of time before the expiry of the period written in the Schedule
calculated from the end of disability subject to the ceiling provided under
Section 8.
Insane, minors and idiots are exempted under Section 6 to file a suit or an
application for the execution of the order in the time prescribed in the law.
 70

They are allowed to file a suit or an application when their disability has
ceased and counting of the period starts from the day their disability came
to an end.
1. Idiots, minors and insane are under the purview of disability.
2. This section applies when a suit brought by a disabled person and not
against the disabled person.
3. The disability must occur at the time when the period of limitation is to
be taken into consideration.
4. Suit or an application for the execution of the order should in question
at the time of the proceeding.
5. The limitation period should be mentioned in the third column of the
schedule to the Limitation Act for the proceedings.
Scope of Section 6 with CPC
The provision shall not grant an indulgence to a minor who is entitled to
prefer an appeal, but only a suit or an application for the execution of an
order.
Section 6 not cover a case of an application under Order 21, Rule 90, of CPC
1908 and through the same court set aside a sale held in execution in the
case Bholanath v. Sayedatunnisia.[9] Nor it does apply to an application
for the readmission of an appeal under Order 41 rule 10, of CPC.
Who is entitled to the Benefit of Section 6?
In the case of Bailchon Karan v. Basant Kumari Naik, it was held it is only an
individual who is entitled to the suit who may claim the privilege of Section
6. An individual who does not have the right to sue or apply to the outset of
the limitation but is later allowed to do so cannot benefit from Section 6.
Computation of Period
The date on which an individual becomes a major shall be excluded while
calculating the limitation period for a minor. A minor can also take the
advantage of Section 4 of the act while bringing a suit after becoming a
major. However, a minor is supposed to file a suit on the last day after three
years from the day he became a major but, if the courts are closed then the
person can file on the reopening day.
Duty of the Litigant to Plead Minority
If the concern of the minority is not posed by or on behalf of the litigant, the
court is not obliged to treat it ex proprio motu. Also, the fact that the
petitioner is defined in the heading of the application as a minor represented
by the guardian is not sufficient to entitle the petitioner to the privilege of
this provision, nor is it sufficient to place on the court the obligation to
protect his rights by raising such a point on his behalf.
Accrual of Cause of Action
The section states that the minor can take exemption when the plaintiff was
a minor at the time when the course of action occurred first and the course
of action should have occurred to the minor only. Henceforth, a minor son
cannot wait till he becomes major after his father�s death if the cause of
 71

action occurred to the father of the minor.A minor should have been present
or existed at the time of occurrence of the cause of action.
Section 8
This Section is ancillary to and exclusive to the waiver given under Sub-
Section 6 and 7, and does not grant any significant rights. This Section is
in the nature of a proviso to Sub-Section 6 and 7. Example, where the
father, as the trustee, renders an alienation on behalf of himself and his
three minor sons and the eldest son, obtains a majority 2 years before the
death of the father, a partition suit and separate ownership by the sons of
their 2/3rd share on the premise that the alienation of the father was not
obligatory on them, filed more than three years after the death of the father
but eldest son obtains majority two years before.
The Supreme Court ruled that there was a cumulative effect of Section 6
and Section 8. It would have been read in the third column of the relevant
Article of the Limitation Act that a person with a disability may sue within
the same duration as would otherwise have been permitted from the time
thus defined in the third column of the schedule, but that special limitation
as an exception has been given in Section 8 that the prolonged duration
after the termination of the disability shall not exceed three years after the
cessation of the disability or the death of the individual with disabilities.
When Section 8 refers to the cessation of disability, it means the cessation
of disability as a result of the loss of the capacity of the party to grant a
valid discharge. The discharge would halt if one in the community had
accumulated the capacity to grant a legitimate discharge without the
competition of the others.
Pre-emption suit
The expanded limitation period referred to in Section 6 or Section 7 shall not
apply to pre-emption suits.[40] As the right to pre-emption should be
automatically claimed by a minority or other disability, there will be no
justification for laches in the declaration of the right.
Rules Pertaining To Legal Disability
There are some of the Sections which deals with legal disability are:
 According to Order 8 of Rule 5(1) of the CPC, it has been specified that
if a particular charge has not been clearly rejected or not acknowledged by
the defendant, it must be expressly admitted, except in respect of persons
with legal disabilities.
 Section 6(3) of the Limitation Act of 1963 empowers legal
representatives to bring an action after the death of a person with a legal
disability, and that clause is enabled by Order 22 of Rule 3 (1) of the CPC
that allows legal representatives of a deceased plaintiff party to a suit.
 According to Rule 4A of Order 22, the court can appoint a deputy
general or an officer of the court as it deems fit to represent the estate of
the deceased person, in the event that no legal representatives remain.
 72

 Under Rule 1(1) of Order 23 of the CPC, an action in respect of which

the applicant is a minor or any other person to whom Rule 1 to 14 of Order
31 applies can be withdrawn only after the court has been satisfied, as
explained in Rule 3 of Order 23, on the grounds of a formal defect or the
existence of grounds for filing a fresh suit. In the case of Joannala Sura
Reddy v. Tiyyagura Srinivasa, it was reported that no fresh suit could be
brought if the previous suit had not been withdrawn after the court had
given its consent pursuant to Rules 1 and 3 of Order 23.
Relevant Case Laws +Pertaining to Legal Disability
Although this list is not comprehensive, it attempts to cover significant cases
in a variety of high courts and Supreme Courts, which can be considered to
be very important in establishing procedures related to the process of legal
disability. This includes:
1. Darshan Singh v. Gurdev Singh:
Section 6 allows the minor to extend the restriction to a longer period of
time and gives the minor, a coward or an idiot the right to bring an action or
to make an application within the same period specified in the third column
of the Schedule to the Act after the legal disability has come to an end. The
special restriction explained in Section 8 of the Act clarified that the
prolonged duration after the termination of the disability does not extend
beyond three years after the death of such a legally disabled person or the
termination of that legal disability. In any case, the claimant is found to be
entitled to a new limitation period from the date of termination of disability
under Section 8 and is also subject to the condition that the period of such
extension under Section 6 or 7. The plaintiff can, therefore, file a suit within
this time frame before restriction disables it.
Continuation running of time section 9
Continuous running of time.—Where once time has begun to run, no
subsequent disability or inability to institute a suit or make an application
stops it: Provided that where letters of administration to the estate of a
creditor have been granted to his debtor, the running of the period of
limitation for a suit to recover the debt shall be suspended while the
administration continues.
Conclusion
Thus we should conclude from the examples described above that the Law of
Limitation and Condonation of Delay are two effective mechanisms in the
swift resolution of cases and effective lawsuits. The law of limitation, on the
one hand, holds a watch on the pulling of cases and prescribes a timeframe
during which the suit can be filed and the time available within which the
plaintiff can reasonably seek the remedy.
17) Acknowledgement (Sections 18-20)
Introduction
Everything has an expiry date and so has the right to remedy. The Limitation
Act 1963 is the watchdog which regulates that a party must not use the legal
 73

recourse method as an endless weapon to harass the other party. It

prescribes a time limit upon which any person can knock the doors of the
Court for the redressal of its grievances. However, there are certain
provisions under the Limitation Act under which the limitation gets extended
on certain acts of the opposite party and wherein the life span gets extended
to reach Courts. Similar is the provision in Section 18 of the Limitation Act.
It says that before the expiration of the prescribed period of limitation, if an
acknowledgment of liability has been made in writing by the other party, a
fresh period of limitation shall be computed from the date when the
acknowledgment was made
Scope
Acknowledgement' generally means acceptance or admission of something
that exists. Section 18 of the Limitation Act, 19631 uses the term
'acknowledgement' to mean an admission of an existing liability in lieu of
which the period of limitation is extended. A perusal through section 18 of
the Limitation Act indicates certain conditions to be fulfilled in order to
emphasize acknowledgement. They are:
a. That the acknowledgement of liability must be in writing.
b. That the acknowledgement of liability must be made before expiry of
limitation period for filing the suit. If limitation has already expired, it would
not revive under section 18 of the Limitation Act 2.
c. That the acknowledgement of liability must be unqualified 3 and must
be in unambiguous, clear terms4.
d. That the acknowledgement must be signed by the person or his
authorised agent admitting liability 5.
It may be clarified that 'acknowledgement' under section 18 of the Limitation
Act and 'promise to pay' under section 25(3) of the Contract Act, 1872 are
different even though both have the effect of creating a fresh limitation
period. Where section 18 grants a fresh period of limitation only in cases
where acknowledgement is before expiry of limitation period; section 25(3)
comes to the rescue in cases where period of limitation has already expired 6.
However, can we treat an acknowledgement of liability as a promise to pay?
In affirmatively answering the question the Delhi High Court has held that
any written acknowledgment after the confirmation of the balance amount
can safely be treated as a promise to pay and not mere acknowledgement 7.
It is to be noted that an acknowledgement of liability may be unilateral or
bilateral 8. A unilateral acknowledgment would, in most cases, be more
reliable and convincing, because if the debtor makes a conditional or
unconditional acknowledgment in the absence of a creditor, it cannot be
urged by him as in the case of a bilateral agreement that it was obtained by
any kind of fraud, coercion, threat, inducement or promise 9.
Effect of acknowledgement in case of Guarantee:
An acknowledgment by a principal-debtor does not bind the surety10 but it
has also been held that acknowledgements by the principal-debtor also keep
 74

the limitation saved against the surety 11. In any case, where the surety has
specifically empowered the principal-debtor to give consent on behalf of the
surety in respect of all matters concerning the debt, the acknowledgement of
liability given by the principal-debtor is binding on the surety, even though
he has not signed the acknowledgements12.
Documents that constitute 'acknowledgement' vis-à-vis section 18 of
the Limitation Act:
1. E-mails acknowledging the debt constitute a valid and legal
acknowledgement of debt though not signed as required under Section 18 of
the Limitation Act13. If an acknowledgment is sent by an 'originator' to the
'addressee' by e-mail, without any intermediary, it amounts to electronic
communication by e-mail which is an alternative to the paper based method
of communication and is legally recognized by the Information Technology
Act, 2000.
2. Debentures are documents which either create debt or acknowledge
it14. In modern commercial usage, a debenture denotes an instrument issued
by the company, normally - but not necessarily - called on the face of it a
debenture, and providing for the payment of, or acknowledging the
indebtedness in, a specified sum, at a fixed date, with interest thereon. It
usually--but not necessarily--gives a charge by way of security, and is often-
-though not invariably--expressed to be one of a series of like debentures 15.
Therefore, debentures are 'acknowledgment' under the purview of section 18
Limitation Act, 1963.
3. Balance sheets are an admission of indebtedness and sufficient
acknowledgment under the Indian Limitation Act 16. The limitation period is
calculated from the date it is signed17. In the case of a company, Section
215(i)(ii) of the Indian Companies Act, 1956 requires that every balance
sheet shall be signed on behalf of the Board of Directors by the managing
agent, secretaries and treasurers, manager or secretary, if any, and by not
less than two directors of the company one of whom shall be a managing
director where there is one. Section 133 (i) (ii) of the Indian Companies Act,
1913 also provided that the balance sheet should be signed by two directors
or, when there were less than two directors, by the sole director and by the
manager or managing agent (if any) of the company. Without such
authentication, an admission of liability in a balance sheet will not be
authorised and will not amount to an acknowledgment of liability within the
meaning of Section 19 of the Limitation Act, 190818.
4. Cheque given by a debtor to pay his dues is an acknowledgement,
even though the Cheque is dishonoured19.
5. An acknowledgement of a payment made in the written statement in
an earlier suit operates as an acknowledgement within the meaning of
Section 18 of the Limitation Act20.
6. In a suit for redemption of a mortgage, acknowledgement of liability
must be made by the mortgagee whereas in a suit for foreclosure of
 75

mortgage, acknowledgement muse b made by the mortgagor21. This reflects

that an acknowledgement must be made by the person against whom the
liability is sought.
7. An insufficiently stamped document which contains an admission of
liability can be relied upon only for the purpose of extending limitation
period22.
There are documents which do not constitute an acknowledgement of
liability under the Limitation Act. Issuance of TDS certificate does not
amount to the acknowledgment of liability 23 as TDS certificate is primarily to
acknowledge the deduction of tax at source. Also, C – Forms are not due
acknowledgement of debt24 as there is no acknowledgement of a present
and subsisting liability. This is because no intention to acknowledge a liability
can be inferred from the contents of the C form. Also, one cannot establish a
jural relation of debtor and creditor from the contents of the C form.
Similarly, a letter in reply to a demand notice cannot be held as
acknowledgment as long as it does not admit the liability.
Date from which limitation period is calculated
S. 18(1) of Limitation Act, 1963 provides that the fresh period of limitation
shall be computed from the time when the acknowledgment was so signed.
In view of Section 12(1) of the Limitation Act and Section 9(1) of General
Clauses Act, 1897 it was held that the day on which acknowledgment is
made will have to be excluded in computing the period of limitation 25. In
case of a minor, where an acknowledgement is made in favor of a minor,
then the fresh period of limitation is to be computed from the date when the
plaintiff attains majority26.
Conclusion:
Limitation bars the remedy; it does not extinguish the right. Therefore,
provisions under section 18 of the Limitation Act aid in restoring such rights.