Course Name – Civil Procedure Code and Limitation Act

UNIT – I
Introductory – Concept of civil procedure in India before the advent of theBritish rule –

Historical Background of the Code of Civil Procedure 1908

o Prior to 1859, there was no unified legislation governing civil courts in India.
o Different systems of civil procedure were followed in provincial courts and crown courts, with
specific rules and regulations applicable to them.
o The Civil Procedure Code (Act/VIII of 1859) was introduced as the first standard code, but it
needed to be more effective as it didn't apply to top courts and Sadar Diwani Adalats.
o After the Indian High Courts Act of 1861, the Supreme Court and Sadar Adalats were
replaced by High Courts in Madras, Bombay, and Calcutta, where the 1859 code was
implemented.
o The Code of Civil Procedure 1877 succeeded the 1859 code and underwent periodic
amendments in 1878 and 1879.
o In 1882, the third Code of Civil Procedure was adopted with several amendments. Eventually,
it was superseded by the current Code of Civil Procedure in 1908, addressing the
shortcomings of the previous code.

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.

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.

Jurisdiction and Res Judicata

JURISDICTION

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. 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 judgment in the case of Hriday Nath Roy v. Ram
Chandra sought to explain the meaning of the term ‘jurisdiction’ in a great detail.
The bench observed:

"Various attempts to define 'jurisdiction' in legal books reveal it as 'the power to

hear and decide legal issues'; 'the authority of three judges to take notice of and
resolve a case'; 'the authority to hear and decide a legal dispute'; 'the power to
hear and decide the subject matter in dispute between parties and exercise
judicial power over them'; 'the power to hear, decide, and pronounce judgment
in court'; 'the power or authority granted by the legislature to a court to hear and
decide cases and enforce judgments'; 'the power to investigate facts, apply the
law, render judgment, and enforce it.'"

Types of Jurisdiction:
In India, there are mainly 5 types of jurisdiction which can be classified as follows:

Subject-matter jurisdiction:
It can be defined as the authority vested in a court of law to try and hear cases
of a particular type and pertaining to a particular subject matter. For example,
District Forums established under the Consumer Protection Act, 1986 have
jurisdiction over only consumer-related cases. It cannot try criminal cases.

Territorial jurisdiction:
Under this type of jurisdiction, geographical limits of a court’s authority are clearly
delineated and specifiedFor example, if a certain offence is committed in Madhya
Pradesh, only the courts of law within the boundaries of Madhya Pradesh can try
and adjudicate upon the same unless otherwise provided for in a particular piece
of legislation.

Pecuniary jurisdiction:
Pecuniary means ‘related to money’. Pecuniary jurisdiction tries to address
whether a court of law can try cases and suits of the monetory value/amount of
the case or suit in question. For example, consumer courts have different
pecuniary jurisdictions. A district forum can try cases of value upto Twenty lakh
rupees only.

Original jursidiction:

Original jurisdiction: It refers to a court's authority to hear and decide cases for
the first time. It is different from appellate jurisdiction where courts review
already decided matters. For instance, the High Court of Allahabad has original
jurisdiction over matrimonial, testamentary, probate, and company matters.

Appellate jurisdiction:

Jurisdiction to review a case already decided by a lower court is called appellate

jurisdiction. Higher courts in India, such as the High Courts and the Supreme
Court, have this jurisdiction. They can overrule, uphold, or modify the lower
court's judgment.

Cause of action

Introduction
The term Cause of Action refers to a set of facts or allegations that make up the grounds
for filing a lawsuit. A Cause of Action is therefore by its very nature essential to a Civil
Suit, since without a Cause of Action a Civil Suit cannot arise. A cause of action is said to
consist of two parts, legal theory (the legal wrong the plaintiff claims to have suffered)
and the remedy (the relief a court is asked to grant).

There are three important factors which cause of action decides in each and every civil
suit. They are :

1. Jurisdiction
2. Limitation
3. Rejection of Plaint

Cause of Action means the whole of the material facts which it is necessary for the plaintiff to
allege and prove in order to succeedCause of Action consists of a bundle of facts which give
cause to enforce the legal injury for redress in a court of law.

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.

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.

ii) Cognizance not barred - A claimant can file a civil suit unless its cognizance is
expressly or impliedly prohibited.

Suits expressly barred - A suit is expressly barred when it is prohibited by the

current statute. The competent legislature can restrict the jurisdiction of civil
courts for specific types of civil suits, as long as it stays within the scope of its
legislative powers and does not contradict the constitution.

Suits impliedly barred - A suit is impliedly barred when it is excluded by general

legal principles. If a specific remedy is provided by statute, it denies any other
form of remedy. When an act creates an obligation and specifies the manner of
performance, it cannot be implemented in any other way.

Case- Premier automobiles v. K.D Wadke: Supreme Court principles on civil court
jurisdiction in industrial disputes:

- Non-industrial conflicts or conflicts unrelated to the enforcement of rights under the

industrial dispute act should be resolved in civil court.

- For industrial conflicts arising from rights or liabilities under general or public law, the
person involved can choose between civil court or another suitable remedy.

- If an industrial dispute involves the implementation of rights or duties under the act,
the only available remedy is adjudication under the act.

Stay of suit. (10 sec)

if there are two lawsuits between the same people or people connected to them, and
both lawsuits are about the same important issue, then one of the courts cannot
continue with the trial. This rule applies if the second lawsuit is already happening in the
same court or a different court in India that has the power to give the same kind of
decision, or if it is happening in a court outside of India that has the same power, or if it
is happening in the Supreme Court. Basically, it means that if there are two lawsuits
about the same important issue, only one court can handle it.

Res Judicata: Section 11 of Civil Procedure Code, 1908

Introduction and Meaning:
Res Judicata is a phrase which is defined in Section 11 of the Civil Procedure Code has been evolved
from a Latin maxim, which stands that the thing has been judged which means if an issue is brought
in the court and it has already been decided by another court, between the same parties and which
has the same cause of action then the court will dismiss the case before it as being useless. The
concept of Res Judicata has high significance both in Civil and Criminal System.

If we breakdown the words of Res Judicata, here the word Res means a subject matter or dispute
between the parties and the other word Judicata means adjudged or decided or adjudicated, that is
the matter is adjudicated or a dispute is decided.

Objectives of Res Judicata:

This doctrine is based on three maxims which are as follows:
  Nemo debt bis vexari pro una et eadem causa which means no man should be vexed twice
for the same cause;
 Interest reipublicae ut sit finis litium which means it is in the interest of the State there should
be an end to a litigation; and
 Res judicata pro veritate occipitur which means judicial accepted as correct.

Extent and Applicability:

The doctrine of res judicata is a fundamental concept based on public policy and private interest.
This doctrine is applicable to civil suits, execution proceedings, arbitration proceedings, taxation
matters, industrial adjudication, writ petitions, administrative orders, interim orders, criminal
proceedings, etc. Thus, this doctrine is not exhaustive in nature.

Conditions of Res Judicata under Section 11 CPC

Before granting a decree of Red Judicata following conditions should be
satisfied first:

1. There must be two suits one former (previously decided) suit and the
other subsequent suit.
2. Parties of the former and subsequent suit or the parties under whom
they or any of them claim should be the same.
3. The subject matter of the subsequent suit should be identical or related
to the Former suit either actually or constructively.
4. The case must be finally decided between the parties.
5. The former suit should be decided by the court of competent
jurisdictions.
6. Parties in the former as well as in Subsequent suit must have litigated
under the same title.
The doctrine of res Judicata can be distinguished from estoppel, as generally understood, on the
following grounds:

1. The rule of res judicata is based on public policy, i.e., it is to the interest of the State that
there should be an end to litigation and belongs to the province of the procedure.

Estoppel, on the other hand, is part of the law of evidence and proceeds on the equitable
principle of altered the situation, viz., that he who, by his conduct, has induced another to
alter his position to his disadvantage, cannot turn round and take advantage of such
alteration of others position.
 2. Res judicata precludes a man from averring the same thing in successive litigations, while
estoppel prevents a party from saying two contradictory things at different times.

3. Res judicata is reciprocal and binds both the parties, while estoppel binds the party who
made the previous statement or showed the previous conduct.

4. Res judicata prohibits the court from entering into an enquiry as well as to a matter already
adjudicated upon; estoppel prohibits a party after the inquiry has already been entered upon,
from proving anything which would contradict his own previous declaration or acts to the
prejudice of another party who, relying upon these declarations or acts, has altered his
position.

5. Res judicata prohibits an inquiry in timeline and bars the trial of a suit while estoppel is only a
piece of evidence and emphasises that a man should not be allowed to retrace the steps
already walked over.

6. Res judicata ousts the jurisdiction of the court, while estoppel shuts the mouth of a party.

Constructive Res Judicata: [ Explanation IV ]

Rule of constructive res judicata is engrafted under Explanation IV of Section 11 of the Code. It is an
artificial form of res judicata and provides that if a plea could have been taken by a party in a
proceeding between him and his opponent, he should not be permitted to take that plea against the
same party in a subsequent proceeding with reference to the same subject-matter. That clearly is
opposed to considerations of public policy on which the doctrine of res judicata is based and would
mean harassment and hardship to the opponent. Besides, if such a course is allowed to be adopted,
the doctrine of finality of judgments pronounced by the courts would also be materially affected.

Thus, it helps in raising the bar of res judicata by suitably construing the general principle of subduing
a cantankerous litigant. That is why this rule is called constructive res judicata, which, in reality, is an
aspect or amplification of the general principle of res judicata.

"In State of U.P. V. Nawab Hussain[6]- A, a police sub-inspector was fired by the
D.I.G. He challenged the dismissal in the high court, claiming he wasn't given a
fair chance to be heard. The court rejected his argument and dismissed the
petition. Later, he filed a lawsuit, arguing that only the I.G.P. had the authority to
dismiss him. The state argued that the lawsuit was barred by res judicata. The
trial court, appellate court, and high court disagreed, but the Supreme Court ruled
that the lawsuit was indeed barred by res judicata since the plaintiff could have
raised the additional ground in the earlier petition."

When foreign judgment not conclusive. [ sec 13 ]

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

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

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

(c) where it appears on the face of the proceedings to be founded on an incorrect view of
international law or a refusal to recognise the law of 1 [India] in cases in which such law is
applicable;

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

(e) where it has been obtained by fraud;

(f) where it sustains a claim founded on a breach of any law in force in 1 [India].
Presumption as to foreign judgments. [ sec 14]
The Court shall presume upon the production of any document purporting to be a certified
copy of a foreign judgment, that such judgment was pronounced by a Court of competent
jurisdiction, unless the contrary appears on the record; but such presumption may be
displaced by proving want of jurisdiction.

UNIT – II:
Suits and institution of suit
Concept of Law suit

In simple terms, a "suit" refers to a legal proceeding that happens in a court of law. It is
when one person or a group of people takes legal action against another person or
group of people to seek a remedy for an injury or to enforce a right. This can be done
either in a civil court or an equity court.

It's important to note that a suit does not include the process of actually enforcing the
court's decision. For example, if the court orders your friend to pay for the damages, you
would need to take additional steps to make sure they actually pay you.
In summary, a suit is a legal proceeding where someone takes action against another
person or group in a court of law to seek a remedy for an injury or to enforce a right.

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.

Order 1: Parties to Suit

Order 1: Parties involved in a case are the plaintiff and the defendant. The plaintiff
initiates the suit against the defendant, who must defend themselves in civil court. This
is outlined in Order 1, which deals with Parties to suit. After identifying the parties, the
suit must be framed according to Order 2.

Rule 1: All persons can join as plaintiffs if they have a right to relief from the same act or
transaction, whether jointly or separately, and if there is a common question of law or
fact.

Rule 2: If joining plaintiffs would complicate or delay the trial, the Court can require
separate trials or make other necessary orders.

Rule 3: All persons can be joined as defendants in one suit if there is a claim
against them arising from the same act or transaction, and if there is a common
question of law or fact.

Rule 3-A: If joining defendants may cause delay or difficulty in the trial, the court
can order separate trials or make other necessary orders in the interest of justice.

Rule 4: The court can give judgment in favor of or against one or more joint
parties based on their respective liabilities.

Rule 5: Not all defendants need to be interested in all the relief claimed.

Rule 6: Plaintiff can join parties liable on the same contract.

Rule 7: Plaintiff can join multiple defendants when unsure who is liable.

Rule 8: One person can sue or defend on behalf of all with the same interest.

- Notice of the suit must be given to all interested parties.

- Interested parties can apply to be made a party to the suit.

- No abandonment, withdrawal, or agreement without notice to all interested
parties.

- Court can substitute another person with the same interest if the original party
does not proceed diligently.

- Decree in the suit is binding on all parties involved.

Rule 8-A: Court may allow interested person to present opinion and participate in
proceedings.

Rule 9: Misjoinder and non-joinder will not defeat a suit.

Rule 10: Court may substitute or add plaintiff if suit filed in wrong name.

Court may strike out or add parties at any stage of proceedings.

No person can be added as plaintiff without consent.

Defendant added, plaint to be amended.

Proceedings against added defendant begin upon service of summons.

Rule 10-A: Court can request pleader to address it on any matter affecting an
unrepresented party's interest.

Rule 11: Court can assign suit conduct to suitable person.

Rule 12: One plaintiff or defendant can represent others with written
authorization.

Rule 13: Objections on non-joinder or misjoinder must be raised at the earliest

opportunity, unless they arise later.

Case- "Heavy Electricals Employees’ Union v. State Industrial Court, AIR 1976
MP 66: Rule 1 of Order 1 of the CPC allows joining multiple plaintiffs in one suit if
they have a common right to relief arising from the same act or transaction. Rule
2 empowers the Court to order separate trials if joining plaintiffs would cause
delay or confusion. Rule 3 determines who can be joined as defendants. Although
the Code of Civil Procedure doesn't apply to Article 226 petitions, the underlying
principles can be applied. The Court can direct separate cases to be registered if
multiple petitioners have distinct causes of action. In such cases, joint petitions
can be allowed with separate court-fees for each petitioner. Separate court-fees
can be demanded if causes of action are distinct and each petitioner should have
filed a separate petition for the relief claimed on similar grounds."""
2. Challenge to joinder of partiesKasturi v. Iyyamperumal, (2005) 6 SCC 733:
"..........on jurisdiction, this Court has stated that it can intervene if the lower
courts were wrong in determining that the individuals sought to be added as
defendants were necessary or proper parties in the plaintiff's lawsuit. In that case,
this Court rejected the application to add parties and overturned the lower courts'
decisions.........."

3.Order 1 of I Prem Lala Nahata v. Chandi Prasad Sikaria, (2007) 2 SCC 551:
Specifies who can be joined as plaintiffs and defendants in a suit. Court can direct
plaintiffs to choose specific parties or order separate trials for misjoined parties.
Court can render judgment for or against joined parties. Suit not defeated by
misjoinder or non-joinder, except for necessary parties. Court can substitute,
add, or strike out parties at any stage if necessary.

4. Rule 10 and 'necessary party' in Rule 9, explained by the Apex CourtMumbai

International Airport (P) Ltd. v. Regency Convention Centre & Hotels (P) Ltd.,
(2010) 7 SCC 417: The plaintiff has the right to choose who to sue, but Order 1
Rule 10(2) allows for the addition of proper or necessary parties. The court can
add parties who should have been joined or whose presence is necessary for a
complete adjudication. A necessary party is essential for an effective decree,
while a proper party enables full adjudication. Inclusion of parties depends on
their necessity or propriety. Acquiring rights after the suit doesn't make someone
a necessary or proper party for specific performance.

Place of suing (Sec 15 )

General:
Sec 15 to 21-A deals with the place of suing in which sec 15 deals with pecuniary jurisdiction Sec 16 to
18 deals with the forum of suing for immovable property sec 19 for movable sec 20 is a residuary
section 21 talks about the waiving of defects while 21 -A talks about the bar to challenge the decree
passed in former suit.

The “place of suing” concept pertains to the trial’s location and is addressed in sections
15-21 of the CPC (Code of Civil Procedure). Each Court possesses its specific jurisdiction
based on monetary and geographical factors. As per Section 15 of the CPC, the lawsuit
should be initiated at the Court with the lowest grade empowered to handle it.

What is the Place of Suing in CPC?

Place of suing in CPC refers to where a lawsuit or legal action should be initiated or filed.
It specifies the jurisdiction and venue where the case should be brought before a court.
Section 15: Place of Suing Based on Pecuniary Basis
According to Section 15 of the Code of Civil Procedure, every lawsuit must be filed in the
lowest competent court. This prevents higher courts from being overwhelmed. A
judgment from a higher court is valid, but a decree from an incompetent court is void.

Therefore, higher court decree cannot be passed without jurisdiction, as clarified by

Nagpur Bench of Bombay High Court in Gopal v. Shamrao (1941). Section 15 has
two main purposes: reducing workload of higher courts and providing convenience
to parties and witnesses in such lawsuits. Court's jurisdiction under Section 15 is
determined by plaintiff's stated valuation, not the final decree amount.

Mazhar Husain And Anr. v. Nidhi Lal (1885) - Allahabad High Court case before India's
independence. Explains Section 15 of the Code of Civil Procedure, 1908. Objectives:
Reduce burden on higher courts. Provide convenience to parties and witnesses.

In Kiran Singh v. Chaman Paswan (1954), Justices Aiyyar and T.L. Venkatarama
considered the application of Section 11 of the Suits Valuation Act, 1887. This
provision, along with Sections 21 and 99 of the Code of Civil Procedure, 1908, aims
to prevent overturning a judgment solely on technical grounds unless there has been
a miscarriage of justice.

Section 16 of the Code of Civil Procedure, 1908 states that suits related to specific
claims on immovable property must be filed in the local court where the property is
located. These suits include:

1.Recovery of property with or without rent,

2.Partition of property, Foreclosure,

3.sale, or redemption of a mortgage or charge on property,

4.Determination of other rights or interests in property,

5.Compensation for property damage,

Recovery of property under distraint or attachment. If relief or compensation for

property damage can be obtained through the defendant's obedience, the suit can
be filed in the Court where the property is located or where the defendant resides,
does business, or works voluntarily and effectively.

Section 16 of the Code of Civil Procedure, 1908 allows invoking jurisdiction in five specific
types of suits, which are as follows:

 Partition of immovable property

 Recovery of immovable property
  Torts to immovable property
 Determination of any right or interest in the property

Section 17 of the CPC states that if a lawsuit is filed for immovable property located
within the jurisdiction of different courts, it can be brought before any court where a
portion of the property is situated. The court hearing the case will have cognizance
over the entire claim.

Section 18 of the Code of Civil Procedure 1908 deals with the "Place of institution of
suit where local limits of jurisdiction of Courts are uncertain". If there is uncertainty
about the jurisdiction of two or more Courts regarding the location of immovable
property, any of those Courts can record a statement and proceed with the suit. The
decree of that Court will have the same effect as if the property was within its
jurisdiction. However, if no statement is recorded and an objection is raised before a
higher court, the objection will only be considered if there was no reasonable ground
for uncertainty at the time of filing the suit, resulting in a miscarriage of justice.

Section 19 of CPC deals with "Suits for compensation for wrongs to person or
movables". If a suit involves compensation for a wrong done to a person or movable
property, the plaintiff can choose to file the suit in either of the courts where the
wrong occurred or where the defendant resides, carries on business, or personally
works for gain. For example, if Raj commits a wrongful act against Suraj, Suraj can
file the lawsuit in either the Court in Kolkata or the Court in Gujarat. This provision
allows the plaintiff to select the Court based on convenience or strategic
considerations when the wrong and the defendant's location fall under different court
jurisdictions.

[Place of Suing in CPC for Other Suits]

Section 20 of the Code of Civil Procedure deals with suits filed where defendants
reside or cause of action arises. Every suit must be filed in a court within the
jurisdiction where the defendant resides, carries on business, or works for gain, or
where the cause of action arises. This section also explains that a person with a
permanent dwelling and a temporary residence is considered to reside in both places
for the purpose of any cause of action. Similarly, a corporation is deemed to carry on
business at its main office or any subordinate office where the cause of action arises.
This section provides flexibility for the plaintiff to choose the court in which to file the
suit based on these criteria.

Section 21: Jurisdiction Objections for Suing

Code of Civil Procedure 1908, Section 21 states that objections to the place of suing
cannot be raised in any Appellate or Revisional Court unless they were raised in the
Court of first instance at the earliest opportunity. This applies to all cases where
issues are settled before or during such settlement, and only if there has been a
resulting miscarriage of justice.
Order 2: Suit Frame
Plaintiff files suit under Order 2, known as Suit Frame. Suit frame means initiating
legal action against another party. Rule 2 of Order 2 requires plaintiff to include
entire claim as cause of action against defendant. Suit must be filed in civil court.

Rule 1: Suit frame—Maximize decision grounds, minimize future litigation.

Rule 2: Whole claim—Plaintiff includes all claims, can relinquish to change court jurisdiction.
Relinquishment—No suing for omitted or relinquished portions.
Omission of reliefs—Sue for all or none, unless court permission.
Explanation—Obligation and collateral security count as one cause of action.
Rule 3: Joinder of causes of action—(1) Plaintiff can combine multiple causes of action against
the same defendant or defendants jointly; and plaintiffs with jointly interested causes of action
against the same defendant or defendants can also combine them in the same suit.
(2) The court's jurisdiction over the suit, when causes of action are combined, depends on the
total value of the subject matters at the time of filing the suit.
Rule 4: Limitations on joining claims for immovable property recovery—No cause of action can
be joined with a suit for immovable property recovery, unless with the court's permission,
except for:
(a) claims for mesne profits or rent arrears related to the claimed property;

(b) claims for damages due to breach of any contract under which the property is held; and
(c) claims seeking relief based on the same cause of action. However, this rule does not prevent
any party in a foreclosure or redemption suit from requesting possession of the mortgaged
property.

Rule 5: Claims by or against executor, administrator or heir shall not be joined with personal
claims, unless the last mentioned claims are related to the estate.
Rule 6: Court can order separate trials if joinder of causes of action is inconvenient.
Rule 7: Objections on misjoinder must be raised at the earliest opportunity, otherwise they will
be deemed waived.

Institution of suits (order IV)

Section 26 and Order 4 contain the provisions relating to the institution of a suit. Rule 1 of Order 4
goes as:
(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).

I. Time and place of presenting a plaint: Generally, a plaint must be presented on a working day
and during office hours. However, there is no specific place or time for such presentation. A
judge may accept a plaint at their residence or any other place, even after office hours, but they
are not obligated to do so. If it is the last day of limitation, the judge must accept the plaint,
even if it is not convenient.
II. Registration of suits: Rule 2 of Order 4 states that the court must enter the details of every
suit in a book called the Register of Civil Suits. These entries will be numbered each year based
on the order of admission of the plaints.

Summons (Sec - 27,28,31, Order IV, VI, IX)

Meaning of term Summons
The term summons has not been defined in Code of Civil Procedure 1908 but according to Black's
law dictionary:
Summons means a writ stating an action is commenced against him in court.

Section 27: Summons to defendants.—

Where a suit has been duly instituted, a summons may be issued to the
defendant to appear and answer the claim and may be served in manner
prescribed on such day not beyond thirty days from the date of the institution of
the suit.

Section 28: Service of summons where defendant resides in another State.—

(1) A summons may be sent for service in another State to such Court and in
such manner as may be prescribed by rules in force in that State.

(2) The Court to which such summons is sent shall, upon receipt thereof,
proceed as if it had been issued by such Court and shall then return the
summons to the court of issue together with the record (if any) of its
proceedings with regard thereto.
(3) Where the language of the summons sent for service in another State is
different from the language of the record referred to in sub-section (2), a
translation of the record,—

(a) in Hindi, where the language of the Court issuing the summons is Hindi, or

(b) in Hindi or English where the language of such record is other than Hindi or
English,

shall also be sent together with the record sent under that sub-section.]

Section 29: Service of foreign summonses.—

Summonses and other processes issued by—

(a) any Civil or Revenue Court established in any part of India to which the
provisions of this Code do not extend, or

(b) any Civil or Revenue Court established or continued by the authority of the
Central Government outside India, or

(c) any other Civil or Revenue Court outside India to which the Central
Government has, by notification in the Official Gazette, declared the provisions
of this section to apply,

may be sent to the Courts in the territories to which this Code extends, and
served as if they were summonses issued by such Courts.

Power for order (Sec - 30 Order XI)

Subject to such conditions and limitations as may be prescribed, the Court may,
at any time, either of its own motion or on the application of any party,—

(a) make such orders as may be necessary or reasonable in all matters relating
to the delivery and answering of interrogatories, the admission of documents
and facts, and the discovery, inspection, production, impounding and return of
documents or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give
evidence or to produce documents or such other objects as aforesaid;

(c) order any fact to be proved by affidavit.

Section 31: Summons to witness.—

The provisions in Sections 27, 28 and 29 shall apply to summonses to give
evidence or to produce documents or other material objects.

IMPORTANT CASE LAWS

1. Issuance of Summons
Auto Cars v. Trimurti Cargo Movers (P) Ltd., (2018) 15 SCC 166 : Section 27 of
the Code deals with issuance of the summons to the defendants. It says that where a
suit has been instituted, summons may be issued to the defendant to appear and
answer the claim and may be served in the “manner prescribed on such day” not
beyond thirty days from the date of the institution of the suit.

2. Power to order discovery

Naren Advertising and Marketing v. State Bank of Saurashtra, AIR 2001 Guj
222: Section 30 empowers the Court to issue summons to witnesses to person whose
attendance is required either to give evidence or to produce documents or such other
objects or order any fact to be proved by affidavit.

, Order IV, (6)

Rule 1 of Order 6 provides the meaning of the term “pleadings” which shall
mean plaint, or written statement.

1. Relevance of Facts (Rule 2 sub-rule 1):

 Pleadings should focus solely on stating relevant facts.
 Evidence is not to be included in pleadings.
2. Format and Presentation (Rule 2 sub-rules 2 and 3):
  Pleadings should be organized into small paragraphs.
 Dates, figures, and numerals must be expressed both in figures and words
to enhance clarity.
3. Inclusion of Necessary Particulars (Rule 4):
 Pleadings must include all necessary particulars as required by the case.
4. Amendments for New Grounds (Rule 7):
 Any new ground in the pleading inconsistent with the previous one
requires amendments.
5. Avoidance of Biased Content (Rule 13):
 Pleadings should not contain biased or prejudiced matter favoring any
party.
6. Mandatory Initials (Rule 14):
 Parties involved must provide their initials in the pleadings.

Order 9 Regarding Appearances and Consequences: [ Order 1X]

1. Mandatory Appearance (Rule 1): Parties in a civil case must appear before the civil court on
the specified date mentioned in the summons served to the defendant.

2. Non-Appearance of Both Parties (Rule 3): If neither the plaintiff nor the defendant appears on
the specified date, the court shall dismiss the suit.

3. Plaintiff's Sole Appearance (Rule 6): If only the plaintiff appears, the fate of the suit depends
on three specified scenarios, each with its own consequences.

4. Non-Appearance of Plaintiff (Rule 8): If the plaintiff fails to appear on the hearing date and
the defendant has not admitted the claim, the court will dismiss the suit.If the defendant has
admitted the claim, the court will pass a decree against the defendant based on the admitted
claim, dismissing the rest of the suit.

These rules highlight the significance of parties' appearances in civil cases and outline the
specific consequences when one or both parties fail to appear. The dismissal of the suit is a
common consequence, but the nuances depend on factors such as the appearance of one party,
admissions, and specific scenarios outlined in the rules.
Order 11: Discovery and inspection [ Order X1]

Order 11 of the Civil Procedure Code typically deals with "Discovery and Inspection" in civil
cases. Discovery and inspection are legal processes through which parties involved in a case can
obtain information and evidence from each other. Here are key aspects and takeaways from
Order 11:

1. Purpose of Discovery (Rule 1): The primary purpose is to enable parties to know the case of
the other side. It helps in preventing surprises during the trial and ensures a fair presentation of
each party's case.

2. Discovery by Interrogatories (Rule 1A): Parties may seek information from each other through
written interrogatories Interrogatories are a set of written questions to be answered under
oath.

3. Discovery and Inspection of Documents (Rule 12): Parties can request the other party to
disclose and permit the inspection of documents relevant to the case. This includes documents
in the possession, custody, or power of the other party.

4. Admissions (Rule 13): Parties may be asked to admit or deny the truth of certain matters.
Admissions can simplify the issues in dispute.

5. Failure to Comply (Rule 21): Consequences for non-compliance with orders related to
discovery and inspection may include adverse inferences or even striking out of pleadings.

6. Expert Interrogatories (Rule 2A): Parties may seek information from each other's expert
witnesses through interrogatories.

7. Affidavit of Documents (Rule 14): Parties are required to make an affidavit listing all the
documents relevant to the case.

8. Discovery Before Action (Rule 12A): In certain circumstances, a party may seek discovery
before initiating legal proceedings.
9. Costs of Discovery (Rule 16): Costs related to discovery and inspection may be awarded by
the court.

Order 11 is an essential part of civil procedure, aiming to ensure transparency, fair disclosure,
and an efficient exchange of information between parties involved in a civil case. The rules
within this order help streamline the trial process and contribute to a more informed and just
resolution of the dispute.

Pleadings and Plaint

1. Pleading.-"Pleading" shall mean plaint or written statement.
1
[2. Pleading to state material facts and not evidence.-

(1) Every pleading shall contain, and contain only, a statement in a concise form of the material facts on which the
party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be
proved.

(2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation
being, so far as is convenient, contained in a separate paragraph.

(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.]

1. Subs. by Act 104 of 1976, s. 56, for rule 2 (w.e.f. 1-2-1977).

3. Forms of pleading.-

The forms in Appendix A when applicable, and where they are not applicable forms of the like character, as nearly as
may be, shall be used for all pleadings.

*[3A. Forms of pleading in Commercial Courts.--

In a commercial dispute, where forms of pleadings have been prescribed under the High Court Rules or Practice
Directions made for the purposes of such commercial disputes, pleadings shall be in such forms.]

* Shall be applicable to commercial disputes of a specified value by Act 4 of 2016, s. 16 and the Sch. (w.e.f. 23-10-
2015).

6. Condition precedent. -

Any condition precedent, the performance or occurrence of which is intended to be contested, shall be distinctly
specified in his pleading by the plaintiff or defendant, as the case may be; and, subject thereto, an averment of the
performance or occurrence of all conditions precedent necessary for the case of the plaintiff or defendant shall be
implied in his pleading.

13. Presumptions of law.-

Neither party need in any pleading allege any matter of fact which the law presumes in his favour or as to which the
burden of proof lies upon the other side unless the same has first been specifically denied (e.g., consideration for a
bill of exchange where the plaintiff sues only on the bill and not for the consideration as a substantive ground of
claim).

2
[16. Striking out pleadings.-

The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-

(a) which may be unnecessary, scandalous, frivolous or vexatious, of

(b) which may tend to prejudice, embarrass or delay the fair trail of the suit, or

(c) which is otherwise an abuse of the process of the Court.]

2. Subs. by Act 104 of 1976, s. 56, for rule 16 (w.e.f. 1-2-1977).

3
[17. Amendment of pleadings.-

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

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

Plaint –
Particulars in money suits and suits for immovable property -

2. In money suits.-

Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed:

But where the plaintiff sues for mesne profits, or for an amount which will be found due to him on taking unsettled
accounts between him and the defendant, 1[or for movables in the possession of the defendant, or for debts of which
the value he cannot, after the exercise of reasonable diligence, estimate, the plaint shall state approximately the
amount or value sued for.]

3. Where the subject-matter of the suit is immovable property.-

Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property
sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of
settlement or survey, the plaint shall specify such boundaries or numbers.

6. Grounds of exemption from limitation law.-

Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show
the ground upon which exemption from such law is claimed :

1
[Provided that the Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set
out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint.]

11. Rejection of plaint:

- Plaint can be rejected if it doesn't disclose a cause of action.

- Relief claimed can be undervalued, and if the plaintiff fails to correct the valuation within the given
time, the plaint can be rejected.

- If the relief claimed is properly valued but the plaint is insufficiently stamped, the plaintiff must supply
the requisite stamp-paper within the given time, or the plaint can be returned.

- If the suit appears to be barred by any law based on the statement in the plaint, it can be rejected.

- The plaint must be filed in duplicate.

- The plaintiff must comply with the provisions of rule 9.

- The time for correction of valuation or supplying the requisite stamp-paper cannot be extended unless
there is a valid reason and refusal to extend would cause grave injustice to the plaintiff.

Section 19A of the Code of Civil Procedure (CPC) deals with the “Return of Plaint.”

“19A. Return of plaint.—

1. If a court determines that it lacks jurisdiction to finally decide the matter in a

lawsuit at any stage of the proceedings, it has the authority to return the plaint to
be presented before a court that has the jurisdiction to address the issue.
2. When a court returns a plaint in such a situation, it must follow the provisions of
the second paragraph of Section 57 of the Code of Civil Procedure (Amendment)
Act, 1882. This may include making orders related to costs, as deemed just.
3. For the purposes of the Indian Limitation Act, 1877, the court returning the plaint
is considered to have been unable to entertain the suit due to a jurisdictional
defect.
4. If a returned plaint is later presented to a High Court, the plaintiff is credited for
the amount of court fees paid in the Small Cause Court concerning the plaint, as
is the practice of the High Court, in the levy of any fees, which are typically
credited to the government.

14. Production and Listing of Documents - Plaintiff must list and produce documents they rely
on in court.

- If the document is not in plaintiff's possession, they should state who has it.

- Failure to produce or list a document may result in it not being accepted as evidence without
court permission.
- This rule does not apply to documents used for cross-examination or to refresh a witness's
memory.

Written statement order 8

Intro: First, we need to understand what a written statement is. It is the defendant's response to
the plaintiff's complaint. It specifically denies the allegations made by the plaintiff. The Code of
Civil Procedure, 1908, provides provisions for the written statement.

Meaning: The term "Written Statement" is not defined in the code. It generally refers to the
defendant's reply to the plaintiff's complaint. It addresses the facts alleged by the plaintiff and
may include new facts in favor of the defendant or legal objections against the plaintiff's claim.
Who can file a written statement: The defendant or their authorized agent can file a written
statement. If there are multiple defendants, they must all sign the common written statement.
However, it is sufficient if one defendant verifies it.

Time limit for filing written statement: The written statement must be filed within thirty days of
receiving the summons. This period can be extended up to ninety days (Rule -1).

Defenses in written statement: The defendant can specifically deny the allegations in the
plaintiff's complaint. They can also claim to set off any sums of money owed to them by the
plaintiff as a counter defense (Order 8 Rule 6). Additionally, the defendant can file a counter-
claim if they have a claim against the plaintiff relating to the issues raised in the complaint
(Order 8 Rule 6A to 6G).

Particulars: Rules 1-5 and 7-10Drafting a written statement requires careful and artistic
attention. The defendant must examine the complaint thoroughly.

Special rules of defense: Rules 2 to 5 and 7 to 10 address specific points regarding the filing of a
written statement.

1- New facts, such as the suit being not maintainable or the transaction being void or voidable,
must be raised.

Rule 2 - The defendant's denial in the written statement should be specific, addressing each
contested fact individually, excluding damages.

3-The denial must be specific and not vague or evasive..

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-Separate and distinct grounds of defense or counterclaim should be stated separately.

6- Any new ground of defense that arises after the suit is filed can be raised in the written
statement.

7-If the defendant fails to file the written statement within the permitted time, the court may pass
judgment against them or take appropriate action.

8-No further pleading can be filed after the defendant's written statement, except for defense, set-
off, or counterclaim.

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:

For the defendant to be able to claim a set-off, a few conditions need to be met:

1. The lawsuit must be about money.

2. The specific amount of money that the defendant is claiming must be known.
3. The defendant must have a legal right to recover that money.
4. If there are multiple defendants, all of them must have the right to recover the money.
5. The defendant must be able to recover the money from the plaintiff(s) who are suing them.
6. The amount of money being claimed must not be more than what the court can handle in
that particular case.
7. Both the plaintiff(s) and the defendant(s) must fill out the necessary paperwork correctly.

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 refers to a situation where someone who is being sued for money can claim that the
person suing them also owes them money. In order for this to be considered a legal set-off, certain
conditions must be met. These conditions include: the lawsuit must be about recovering money, the
defendant must claim a specific amount of money that can be legally recovered from the plaintiff,
and the set-off must fall within the court's jurisdiction.

On the other hand, there is also something called equitable set-off. In England, the Court of Equity
allowed for set-off even if the amount of money claimed was not specifically determined. This means
that if there were cross-demands arising from the same transaction, the court would consider them
as part of the set-off. In India, both legal and equitable set-off are recognized. The specific provisions
for legal set-off can be found in Order VIII, Rule 6 of the Code of Civil Procedure, and there is also a
provision for counter-claims by the defendant in Rule 6-A. Equitable set-off, on the other hand, is
provided for in Order XX, Rule 19(3) of the Code.

It's important to note that the provisions for legal set-off and counter-claims are not exhaustive,
meaning that there are other situations where equitable set-off can be claimed independently of the
specific provisions in the Code.

Counter Claim A counterclaim, as governed by Rules 6A to 6G of Order 8, is a claim

initiated by the defendant against the plaintiff in a legal suit. It is an independent and separate
claim that can be enforced by the defendant, akin to a cross-suit. The counterclaim can relate to
actions arising either before or after the filing of the suit, but it must fall within the jurisdictional
pecuniary limits of the court.

Key points about counterclaims include:

1. Filing and Timing:- The defendant can file a counterclaim after submitting the written
statement.

- A counterclaim is valid if it pertains to a cause of action that arose before or after the suit was
filed, but before the defendant's defense is delivered or before the time for delivering the defense
has expired.

2. Who May File: - Generally, the defendant files a counterclaim against the plaintiff.
 - In certain situations, a defendant may also claim relief against co-defendants, but a
counterclaim solely against co-defendants is not allowed.

3. Limitation: - The counterclaim must not be barred by limitation.

4. Effect of Counterclaim: - The court can render a final judgment on both the original claim
and the counterclaim.

- The counterclaim is treated as a separate plaint, and the plaintiff can respond with a written
statement.

- Even if the plaintiff's suit is stayed, discontinued, dismissed, or withdrawn, the counterclaim
is independently adjudicated.

- If the plaintiff fails to reply to the counterclaim, the court can pronounce judgment against the
plaintiff in relation to the counterclaim.

5. Legal Standing:- The counterclaim is legally significant, allowing the defendant to secure a
decree for the counterclaim as stated in the written statement.

- Rules applicable to plaints govern the counterclaim, and a reply to a counterclaim is treated as
a written statement.

In summary, a counterclaim provides a mechanism for a defendant to assert a separate claim

against the plaintiff in the same legal proceedings, with the court having the authority to make
final judgments on both the original claim and the counterclaim.

In Smt. Shanti Rani Das v. Dinesh Roy, it was held that the right to file a counter-claim depends
on the date of the cause of action. If the cause of action arose before or after the filing of the suit,
and if the cause of action continued up to the date of filing the written statement or the extended
date of filing the plaintiff's statement, then the counter-claim can be filed even after the written
statement is filed.

Set-Off and Counterclaim Distinction:

1. Nature:- Set-off: It is a statutory defense available to a defendant in response to the plaintiff's

action.Counterclaim: It is essentially a cross-action initiated by the defendant against the
plaintiff.

2. Requirement for Amount: Set-off: Must be for an ascertained sum or arise from the same
transaction as the plaintiff's claim.Counterclaim: Not necessary to arise from the same
transaction; can be independent of the plaintiff's claim.

3. Defensive vs. Offensive: Set-off: Acts as a statutory defense and must be pleaded in the
written statement. It serves as a shield, not a sword.Counterclaim: Does not defend against the
plaintiff's claim; instead, it is an offensive measure allowing the defendant to enforce their claim
against the plaintiff.

4. Statute of Limitation: Set-off: If the statute of limitation is raised against a set-off, the plaintiff
must prove that the set-off was barred when the action commenced, not just when it was pleaded.
Counterclaim: Sufficient for the plaintiff to prove that the counterclaim was barred at the time it
was pleaded.

5. Equitable Set-Off:Set-off: Generally cannot exceed the plaintiff's claim and is an equitable
defense.Counterclaim: May exceed the plaintiff's claim, resembling a cross-action rather than a
mere defense.

6. Legal Provision: According to Rule 6-F of Order 6, if a set-off or counterclaim is established

as a defense against the plaintiff's claim, and there is a balance in favor of the defendant, the
court may render judment in favor of the party entitled to such balance.

In summary, while set-off is a limited defense closely tied to the plaintiff's claim, a counterclaim
is a more comprehensive offensive action initiated by the defendant, which may even surpass the
plaintiff's original claim. The rules and implications of each differ, affecting their use and
applicability in legal proceedings.