1

JAFFER S.S
M.A, (L.L.B)

The code of civil procedure

and
The limitation act

1. What are the salient features and law reforms of Civil Procedure code.
There were different systems of civil procedure in different parts of the country. The
first uniform code of civil procedure was enacted in 1859, but the code was not applicable to
the Supreme Courts in the presidency towns and to the presidency small cause courts. After
some amendments, the code was applied to the whole of British India. It has many defects so it
was amended number of times, new code was enacted in 1877 and then in the year 1882.
Finally Code of Civil Procedure was enacted in 1908. It came into force w.e.f. 01.01.1909.
Salient Feature of Civil Procedure Code is as follows:
1. The Civil Procedure Code contains the procedures to be followed by Civil Courts. The code
contains procedures which are simpler and effective.
2. The Civil Procedure code provides the mechanism for enforcement of rights and liabilities.
That is the code dealt with the enforcement of rights, liabilities and obligations of the citizens.
3. The civil procedure code is a general law which will not affect any law which is already in
force whether it is Special law or general law.
4. In case of any conflict between special law and code, special law shall prevail.
5. If any local or special law is silent about any particular issue, then the Civil Procedure Code
will apply.
6. After 1909 the code has been amended more than 35 times due to dynamic and changing
needs.
7. Following are the Salient features f the Code of Civil Procedure, 1908:-
 The Code of Civil Procedure, 1908 is one of the most important branches of the
procedural laws and regulates the procedure to be adopted in all civil courts having
jurisdiction in India.
 It came into force from 1st January 1909. 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 forms the Second Part. The schedule
contains 51 orders. Each order contains rules. The number of rules varies from order to
order At the end of the rules, there are eight appendices pertaining to Forms/Model
Formats viz.
a. Pleadings (Plaint and Written Statement), b. Process,
c. Discovery, Inspection and Admission, d. Decrees,
e. Execution, f. Supplemental Proceedings,
g. Appeal, Reference and Review and h. Miscellaneous.
 Contains principles of natural justice and based on justice, equity, and good conscience,
Contains both procedural & substantive laws.
 Hierarchy of Civil Courts in India: Supreme Court, High Courts, District Courts, Courts of
senior Civil Judge, Courts of Junior Civil Judge, Small Causes Courts, Court annexed
mechanism – Lok Adalat
 Stages of Civil Litigation: Plaint – Summons - Written Statement (Set-off, Counter Claim
& New facts) - Appearance/Non-appearance of parties - Discovery. Inspection &
Interrogatories - Amendment of Pleadings - Framing of Issues - Hearing & Trial - Judgment
& Decree - Execution Proceedings (subject to appeals, reference, review and revision)
 Interim Orders: May be passed during pendency of suit; Include Commissions, Arrest
before judgment, Attachment, Temporary Injunctions, Receiver & Security for costs.
Object:- to protect subject matter of suit and to meet the ends of justice.
Orders:- passed at discretion of court and depending on facts and circumstances of each
case.
 Bars to Institution/Trial of Suits: Stay of Suit (Res subjudice), Res judicata, Court Fees
(subject to filing of indigent/pauper suits), Expiry of Limitation Period (subject to
condonation of delay), Lack of jurisdiction, Compulsory Arbitration Clause in agree
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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 should be 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 to submit/file written statement within 30 days. However, the Court may extend the
period of filing written statement upto 90 days.
3. The penalty for default/deniel/non-appearance in response to the summons has been
enhanced upto Rs 5,000/
4. If the decree for 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 Rs.2,000/- and below Rs 5,000/- and no order for detention in the civil prison in respect
of the default upto Rs.2,000/-.
5. With regard to attachment in execution of a decree, salary. upto Rs.1,000/- and two thirds
of the remaining salary beyond Rs.1,000/- shall not be liable for attachment.
6. Provision has been made for settlement of disputes outside the Court viz. Arbitration,
Conciliation, Mediation, Lok Adalats etc.
7. Provision has been made to provide compensation upto Rs.50,000/- to the defendant for
the expenses incurred, loss or injury including 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 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 3 adjournments during the hearing of the
suit.
11. When a judgment 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.
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2. Explain the different kinds of interim orders and in which circumstances a
receiver can be appointed.
The word interim means for the time being, temporary, provisional or not final. Thus,
according to the law, an Interim Order refers to “an order passed by the court during the
pendency of a suit or proceedings to ensure that the interest of the parties to the litigation are
not harmed and the subject matter of the suit is maintained”.
For instance, there is a dispute between A and B relating to a property. B makes an application
to the court asking the court to restrict A from selling the property to the third party or doing
any construction on the said property until the final orders are given out. To protect B’s rights
and ensure protection and justice to B, the court passes an order for B’s relief until the final
judgment is given. The order passed is called an interim order.
An interim order may be classified into two categories depending upon the nature of the
direction issued by the court.
1. Directive Order– The courts issue a directive order to instruct either party to act in a
specific way until the trial ends or a further order is issued. If not continuing the action would
harm the other party then the courts can issue a directive interim order.
2. Restraining Order– The courts issue a restraining order to prevent any of the parties
from acting in a specific way while the civil lawsuit is pending. The courts issue these orders to
prevent any party from being harmed because the other party may have continued acting
upon the issue involved in the suit.
The main motive of passing an interim order is to safeguard the plaintiff from irrecoverable
losses. If later, the uncertainty of the matter in the suit is resolved in favour of the plaintiff then
it should not happen that the plaintiff will not get sufficient compensation in the lawsuit
because of that irreparable loss. So, interim orders are passed by the court but these orders
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are passed only on the basis of the primary findings if prima facie court feels that an interim
order should be passed then a court can pass it but one should not forget that these orders are
tentative.

Kinds of Interim orders under CPC:-

1. Payment in Court: Order XXIV
In a suit for debt or damages, it is open to the defendant that he can deposit such sum of
money as he considers a satisfaction in full of the plaintiff’s claim at any stage of the
proceeding of the matter. If the plaintiff accepts the money when it fully meets its
requirements, the court shall record its statement and pronounce its judgment accordingly. On
the other hand, if the plaintiff accepts the payment as a satisfactory amount in part of his
claim, he has the right to file a lawsuit to recover the balance. However, if it is finally found
that the deposit fully meets the requirements of the plaintiff, the plaintiff shall pay all expenses
incurred after the deposit.
2. Security for Costs: Order XXV
It is pointed out in Order XXV Rule 1 that the court can order the plaintiff to provide security at
any stage of the litigation to pay the costs incurred by the defendant. The court can exercise
this power at the request of the defendant or can take a suo moto cognizance.
3. Commissions: Order XXVI
Section 75 to 78 of the CPC deals with the power of the court to issue a commission, which has
been further detailed in Order 26 of the Code. The power of the court to issue commissions can
be exercised by the court on its discretion. The court establishes complete justice between the
parties. The court can exercise this right at the request of the parties involved in the litigation
or by a suo moto action. According to Section 75, a court may issue a commission for any of the
following purposes: To examine witnesses, To make local investigation; To adjust accounts; To
make a partition; To hold investigation; To perform a ministerial act; or To conduct sale.
4. Arrest before Judgment: Order XXXVIII
Generally, the arrest of an accused (as the execution of decree) took place after passing of the
decree but in certain exceptional cases, an accused can be arrested before passing of the
judgment. The main purpose of this order is to prevent the defendant from making any
attempt to defeat or escape from any liability imposed by the court on him and protect the
interest of the plaintiff.
5. Attachment before Judgment: Order XXXVIII, Rule 5- 13
Similar to arrest before judgment, the court in certain conditions may order attachment before
judgment. The main purpose of attachment before the judgment is to prevent the defendant
from attempting to undermine, execution of the decree against him.
6. Injunctions: Order XXXIX
An injunction is a remedy issued to a person in the form of a court order that prohibits the
person from engaging in or continuing to perform a specific act or ordering him to perform a
certain act. The main purpose of granting interim relief is to retain the disputed property until
the court determines the legal rights and conflicting requirements of the parties. Injunctions
classified into two types:-
Permanent injunction will forever restrict a party from performing a specified act, and a ruling
can only be granted on the merits of the case after the hearing of both parties is over.
Temporary injunction restricts the parties temporarily from not performing specified actions
and can only be approved before the litigation or until a further court order is dealt with.
Injunctions will be preventive if they prevent, prohibit or restrict someone from doing
something; or mandatory when they force or order someone to do something.
An ad interim injunction order is granted without a final decision on the injunction
order and remains effective until the application is processed. Usually, an interim injunction is
granted while finally deciding the main application and the injunction will continue until the
litigation is dealt with.
7. Interlocutory Orders: Order XXXIX
Rule 6 of Order 39 authorizes the court to order, in certain conditions, the sale and purchase of
perishable goods.
Rule 7 empowers courts to authorize any person to enter into any land or building owned by
any party for sampling, observation, or experimentation for detention, preservation, or
inspection of the property which is the subject matter of the suit.

8. Receiver: Order XL
A receiver is an independent person appointed by the court between the parties to the
litigation. He can accept the funds or property in the litigation, whenever it is believed by the
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court that it is unreasonable for either of the party to hold property or funds. The main object
behind appointing a receiver is to preserve, protect, and manage the property of the suit and
safeguard the interests of both litigants involved in litigation, in the course of the pendency of
the litigation.
Circumstances a receiver can be appointed
 It is at the discretion of the court to appoint a receiver.
 Appointment of a receiver is a protective relief and the purpose is to preserve the disputed
property before the determination of the rights of the litigants by the judiciary.
 A receiver will not be allotted lest the plaintiff’s prima facie evidence proves that he is
likely to succeed in the lawsuit.
 This is one of the most severe remedies provided by the law for the enforcement of rights,
so it should not be taken lightly. Since it deprives the other party of ownership of the
property before the announcement of final judgment, it should only be used to prevent
obvious errors or harm. The courts will never appoint receivers solely because it will not
cause any harm.
 Generally, in situations that may cause the defendant to suffer irreparable losses, if there is
a receiver order that will deprive the defendant of the defendant’s de facto property, then
the court may not pass an order to appoint a receiver.
 If no one has the right of enjoyment of the property and it is also proved with the help of
adequate pieces of evidence then it will be in the common interest of all the litigants to
appoint a receiver.
 The court is required to make sure that the party approaching court for the appointment of
the receiver should come with no malafide intentions.
 The court may grant any of the following power to the receiver-
a. File a lawsuit and defend it;
b. Realize, manage, protect, preserve and improve property;
c. Collect, use and dispose of profits and rents;
d. Executing documents; or
e. These powers that it considers appropriate.
 Liability of Receiver: If the receiver fails to give in to the account or is unable to pay the
outstanding amount, or due to deliberate breach of contract or negligence caused damage
to the goods then the court may instruct the seizure and sale of any of his property, and
make up any money due to him.
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3. Define and explain about Reference, Review and Revision.
According to the Code of Civil Procedure, 1908, when a party is aggrieved by the decree passed
by the court, he can approach the superior court by way of appeal, against the decree passed
by the trial court. Generally, under appeal, the whole dispute is re-heard by the appellate
court. But in cases where there are technical/procedurals errors, the aggrieved party need not
take the pain of approaching the higher court for going through the hassle of contesting
another suit which is in the form of appeal. For the same purpose, the Code of Civil procedure
has introduced the concepts called Reference, Review and Revision under Sections 113, 114 &
115 respectively. An application for Reference, Review and Revision can be filed in the
concerned courts as provided by the Code and the proceedings under these applications do
not deal with merits (facts or evidence) of the case. They are solely based on technical
grounds.

REFERENCE
“Reference” is given under Section 113 of the Code of Civil Procedure,1908 and Order XLVI of
the Code of Civil Procedure,1908 tells about the procedure of sending reference, its essentials,
and other conditions. When the courts subordinate to the High Court has a ‘reasonable doubt’
on a question of law it can refer it to the High Courts for their opinion. This is known as a
reference.
The doubt is related to some act, law or ordinance on which there is no clear stand of the
Supreme Court or the High Court. In such instances, it is obligatory for the lower courts to seek
the opinion of the High Court.
The reference becomes obligatory if these conditions are fulfilled-
 It is necessary to dispose of the case.
 The subordinate court making the reference thinks that the act, ordinance or regulation is
unconstitutional.
 There is no clear stand of the Supreme Court or the High Court on such act, ordinance or
regulation.
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 The doubt can be related to any other question that has arisen in the course of the case.
Here, it is optional for the lower courts to seek the opinion of the High Courts.

Objectives: The main objective of this was to prevent the passing of any wrong decree or
judgment. reference can be used only in non-appealable cases. Also, it prevents a miscarriage
of justice. The High Court can clear the doubts so that the same questions don’t arise again by
any other lower courts.
Who can send reference: It can be sent by the lower court to the High Court in two ways:-
 An application by any of the parties for moving the reference
 By suo moto the lower court can send the reference to the High Court.
Work of the District Court: The District Court can do two things:-
 It can put a stay on the case.
 It can pass a contingent order i.e. the order will be subject to the opinion of the High Court.

Work of the High Court: Where a case has been referred to the High Court under the High
Court can do two things:
 may return the case for amendment or
 may alter, cancel or set aside any decree or order which the Court making the reference
has passed

REVIEW
It has been given under Section 114 of the Code of Civil Procedure, 1908. Under Order XLVII of
the Code of Civil Procedure, 1908 it lays down some conditions necessary for review. The
review simply means to re-consider. Review of a decision is to be made to the same court by
the same judge which passed the decree or made the order. There is only one review for one
case.

Objectives: Every human being commits a mistake. Judges are also human beings and they also
at times pass the wrong decree or pronounce wrong judgments. Many times it happens that
due to lack of evidence, such rulings are given. To prevent such miscarriage of justice review
was introduced.

When can one go for Review: According to Section 114 of the Code of Civil Procedure, 1908,
any party to a suit, who considers himself aggrieved
 By a decree or appealable order of a court-but no appeal is preferred for it. Also in the
case of Ram Baksh v. Rajeshwari Kunwar, (AIR 1948 AII 213) it was held that even if is an
appeal is dismissed on any grounds, the option for review is always there.
 By a non-appealable decree or order of the Court, or by a reference on a decree from a
Court of Small Causes may apply for a review of the judgment. As the application is made to
the same court, it may reconsider and make suitable orders thereof.
Conditions for review:
 On the discovery of new and important matter or evidence.
 On account of some mistake or error apparent on the face of the record.
 For any other sufficient reason.

In S. Nagraj & Ors. V. State of Karnataka & Anr., 1993, the Apex Court held that “The
expression, for any other sufficient reason’ in the clause has been given an expanded meaning
and a decree or order passed under misapprehension of true state of circumstances has been
held to be sufficient ground to exercise the power.”

When can an application for review get rejected:

The application can get rejected when the court does not find any sufficient ground to
entertain the review.

When can an application for review be granted:

Where the Court thinks that the application for review should be granted, it shall grant the
same. But there are some conditions-
 An application about the reviewing of the decree should be given to the other party.
 The party asking for review must have a solid proof about the new evidence. There was
no chance of getting that evidence at the time when the case was decided.
The Limitation Period for Review
Under Article 124 of the of The Limitation Act, 1963 the limitation period is 30 days for courts
other than the Supreme Court from the date of decree or order.
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REVISION
Revision is mentioned under Section 115 of the Code of Civil Procedure, 1908. Revision in
simple words means to re-visit or re-examine something carefully. The High Court can re-
examine any order of the court subordinate to it but there are certain conditions to it.
Conditions for revision-
 The decree or order given by the lower court should be non-appealable.
 The case must be decided.
 The lower court has exercised a jurisdiction not vested in it by law, or
 The lower court has failed to exercise a jurisdiction so vested, or
 The lower court has acted in the exercise of its jurisdiction illegally or with some material
irregularity.
If the above conditions are fulfilled then the High Court may call for the records from the lower
court and act accordingly. If there is any other remedy left to the aggrieved party, then the
court may not exercise its Revisional Jurisdiction.
This Revisional Jurisdiction of the High Court is discretionary in nature. Even after the
fulfillment of the above conditions, it is not obligatory for the High Court to go for revision. The
High Court does not examine the merits or facts of the case. It just examines the scope and
impact of the judgment. If it thinks that the judgement has some serious irregularities and it
will lead to a miscarriage of justice, then only it goes for revision. After allowing revision, if the
High Court finds that there is a mistake of fact then it can check for it.
An amendment was done in 1999 in Section 115 of the Code of Civil Procedure, 1908.
1. “Provided that the High Court shall not, under this section, vary or reverse any order
made, or any order deciding an issue, in the course of a suit or other proceeding, except where
the order, if it had been made in favor of the party applying for revision, would have finally
disposed of the suit or other proceedings”.
This amendment meant that the High Court cannot change any order or Decree of the lower
court except that one which when changed will be in favour of the party which has applied for
revision.
Limitation Period for Revision:
According to Article 131 of the Limitation Act, 1963 for a revision of the decree or order, the
limitation period is 90 days. The revision application should be made to the High Court within
the limitation period.
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4. What is sufficient cause? And what is not sufficient cause? Illustrate With the meaning of
Section 5 of the Limitation Act for the purpose of extending the period of limitation for an
appeal or application.
Section 5 of the Limitation Act provides that any appeal or an application except an application under
the provisions of Order XXI of the Code of Civil Procedure, 1908 may be admitted beyond the period of
limitation if the appellant or the applicant satisfies the court that, he had sufficient cause for not
making the appeal or application Section 5 confers discretionary power on the court to condone or
wave delay of suing, if there is a sufficient cause. The reason is the party could not file a suit due to the
reason beyond his control. It is the duty of the Court to record the reasons for extending time under
this section and it has no power to extend the time under equitable grounds. The immunity under
Section 5 is not applicable to suits.
The term sufficient cause is not defined under the Limitation Act. It means a cause beyond the control
of the party. It should be interpreted in the light of the definition 'good faith' given in Section 2(h) of
the Limitation Act i.e. 'nothing shall be deemed to be done in good faith which is not done with due care
and attention'.
The sufficient cause has to be considered with pragmatism and of course with justice oriented
approach but 'any cause' cannot be construed as 'sufficient cause'. The words 'sufficient cause' must
generally receive a liberal construction so as to advance substantial justice when no negligence or
inaction or want of bona fides is imputable to appellant.
Example: Imprisonment, illness, heavy rain, strike, bandh, wrong advice by; the advocate or his clerk
are the examples of sufficient cause
Relevant case laws:
Ramlal vs. Rowa Coal Fields Ltd. AIR 1979 SC 566.
The party in the instant case did not file an appeal till the last day, as he fell ill on the last day of the
period of limitation. He requested the court to condone delay The respondents (opposite party) argued
that he (appellant) was not deligent to file an appeal before the last day The court denied this
(respondent's) contention land held that non-deligence will not disqualify the party (appellant) to pray
for condonation.
State of Himachal Pradesh vs. Daulat Ram, AIR 1981 H.P.
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In this case, the court condones the delay caused due to N.G.O's strike.
Rajendra Nath Kar vs. Gangadas, AIR 1979 S.C. 566
In this case, the appellant was wrongly advised as to the legal position and hence he could not prefer
appeal in time The Supreme Court held that appellant had sufficient cause for not filing the appeal in
time.
While condoning delay, the court takes into consideration two points:
1. The period of limitation cannot be easily extended and respondent's right cannot be easily taken
away.
2. The application for condonation of delay should not be refused if the delay is properly explained.
The words 'sufficient cause' used in the provision are wide enough and are adequately elastic to enable
the Courts to apply the law in a meaningful manner, which subserves the ends of justice and refusing to
condone delay can result in a meritorious matter being thrown out at the very threshold and cause
justice being defeated.

The following guidelines should be kept in mind while deciding the sufficient cause of condonation:
1. Ordinarily a litigant does not stand to benefit by dodging an appeal.
2. The cause would be decided on merits after hearing the parties.
3. The doctrine of 'every day's delay must be condoned must be applied in a rational, common sense
and pragmatic manner.
4. When substantial justice and technical considerations are pitted against each other, cause of
substantial justice deserves to be preferred.
5. There is no presumption that delay is occasioned deliberately, or on account of culpable negligence,
or on account of other way mala fides. The presumption would be just the round.
6. The approach of a schoolmaster using his rod to discipline the student should not be adopted and the
attitude must be one informed with greatest awareness for the cause of justice.
7. The fact that the judiciary is capable of removing injustice is to be respected.

Sufficient cause Illustrations: Basing on different judgments, the following are the grounds to
condone delay under sufficient cause.
(i) Personal illness (illness of the party), his wife's or child's etc.
(ii) Delay due to accident was accepted as sufficient cause.
(iii) Delay due to non-supply of information to party by counsel in ex parte decree is sufficient cause
for condonation of delay
(iv) Delay in getting certified copy of the judgment and decree is sufficient cause to condone the
delay in appeal.
(v) The imprisonment of a party may constitute a sufficient cause for excusing delay in preferring
an appeal.
(vi) Mistake by a lawyer not due to negligence is a good ground for condoning the delay.
(vii) Mistake of Court is sufficient cause to condone the delay.
(vii) Pendency of writ petition before Apex Court is sufficient ground for condoning the delay in
availing of those remedies.
(ix) Poverty, backwardness, illness are sufficient causes for condonation of delay
(x) Wrong entry in lawyer's diary is sufficient cause.
Not sufficient cause Illustrations: The following illustrations may be regarded not sufficient causes.
(i) Absence of plea of wrong advice in lower Court is not sufficient cause to condone the delay
(ii) Absence of ignorance of law is not sufficient cause.
(iii) Allegation of ignorance of law is not sufficient cause.
(iv) The business of a party in itself is not a sufficient ground to con done the delay in appeal
(v) Correspondence not sufficient to condone of delay.
(vi) Delay on part of State Government due to lack of fund cannot be considered as sufficient cause
(vii) Every negligence or inaction or mistake on the part of an advocate does not constitute
sufficient cause.
(viii) Failure to apply for copy before the commencement of the vacation cannot be considered to be
a sufficient ground to excuse the delay.
(ix) Illiteracy by itself is not a ground for condonation of delay.
(x) Lack of reasonable skill of legal practitioner is not sufficient cause.
(xi) Late discovery of evidence is not a sufficient cause.
(xii) Moving file from one section to other is no sufficient cause.
(xiii) Non-availability of warrant is not the sufficient cause.
(xiv) Negligence in preferring appeal is not sufficient cause.

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5. Explain the doctrine of Resjudicata with all explanation in detail.

Res Judicata is a Latin term which means ‘a matter already judged’. In general, a court will not
entertain a matter which has been already adjudged between the same parties. Also, such
matter is no longer subject to appeal. Section 11 of Code of Civil procedure, 1908 embodies
Doctrine of Res judicata or rule of conclusiveness in India. It states that no court shall try a suit
or issue in which issue directly and substantially is the same as the earlier suit, between the
same parties or their representatives and for the same relief. Further, the earlier suit must be
adjudged by the competent court and no longer subject to appeal. This doctrine was accepted
in all civilized legal systems.
Nature and Scope of Res Judicata
“Res” means “subject matter” and “Judicata” means “decided”. This doctrine is formed in the
larger public interest and it requires that all litigation, sooner or later, must come to an end.
This principle is based on justice, equity and good conscience. Means, if a party who has
succeeded once in a suit, should not be harassed in the further proceeding involving the same
issue. Res judicata strives to strike a balance between two pits, first the efficiency of the
judicial system by providing final judgment. whereas, second, it protects the parties’ interests
and rights which have been decided already. Section 11 of the code contains the principle of
public policy in statutory form. it embodies the rule of conclusiveness and operates as a bar to
try the same issue twice.
This Doctrine is based upon three Latin maxims:-
(a) Nemo debet bis vexari pro una et eadem causa;
Meaning thereby, no man should be vexed twice for the same cause. for example, if a person
was convicted by the competent authority, the same person could not be brought in front of
the court in subsequent proceedings.
(b) Interest reipublicae ut sit finis litium;
It is in the interest of the state that there should be an end to litigation. The contrary will result
in overburden the judiciary which will hamper the efficient working.
(c) Res judicata pro veritate occipitur;
A judicial decision must be accepted as correct and conclusive truth. Otherwise, the credibility
of the judicial system will degrade and there will be no finality to any suit.

Satyadhyan Ghosal v. Deorjin Debi (AIR 1937 Nag 132)

The Doctrine of Res Judicata as explained in case of by Das Gupta, Justice; as:-
” The principle of res judicata is based on the need of giving finality to judicial decisions. What
it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as
between past litigation and future litigation. When a matter, whether on a question of fact or a
question of law, has been decided between two parties in one suit and the decision is final,
either because no appeal was taken to higher court or because the appeal was dismissed, or no
appeal lies, neither party will be allowed in a future suit.”
The Supreme Court through Gajendra Gadkar J, placed the doctrine on a still broader basis in
the case of :
Daryao vs. State of UP (AIR 1961 SC 1457)
The petitioners in the instant case had filed writ petitions in the High Court of Allahabad under
Article 226 of the Constitution and the same were dismissed Thereafter, they filed substantive
petitions in the Supreme Court under Article 32 of the Constitution. The respondents raised a
preliminary objection as to the maintainability of the petitions in the Supreme Court They
(respondents) contended that the prior decision of the High Court would operate as 'res
judicata' The Supreme Court upheld their contention and dismissed the petitions.
Conditions: For application of the doctrine of ‘Res Judicta’ the following conditions are to be
satisfied:-
1. There must be two suits or issues in which subject matter is the same.
2. The previous suit must have been adjudicated by the competent court and the
subsequent suit must be pending.
3. The issues in the previous and subsequent suits must be directly and substantially the
same.
4. Parties must be the same in both the suits and litigating under the same title.
5. The court which decided the previous suit must be a court competent to try the
subsequent suit also.
The doctrine of Res Judicata the is based on the public policy and is founded on justice, equity
and good conscience. It applies to all civil and criminal proceedings.
 9

Illustration: 'A' sues 'B' for damages for breach of contract. The suit is dismissed. 'A' against 'B'
for damages for breach of the same contract is barred. 'A's right to claim damages from B for
breach of contract having been decided in the previous suit, it becomes res judicata, and
cannot therefore be tried in the subsequent suit. 'B' cannot be vexed twice over for the same
cause (breach of contract). Moreover, public policy also requires that there should be an end to
a litigation and for that reason, the previous decision must be accepted as correct, lest every
decision would be challenged on the ground that it was an erroneous decision and there would
be no finality.
…………………………………………………………………………………………………………………………………………...
6. Write a detailed note on concepts of decree, Order and judgment.
DECREE
A decree as defined under Section 2(2) of Civil Procedure Code, is a formal expression which
determines the interest of both the parties in a conclusive manner, with regards to any
disputed matter in a civil suit. Significantly, a decree is a formal expression of adjudication by
which the court determines the rights of parties regarding the matter in a controversy or a
dispute. A set-off or a counterclaim can be obtained on the decree. A decree shall be deemed to
include
 Rejection of a plaint
 Determination of any question under Section 144 of the Act.

The decree might not include

 Any adjudication from which an appeal lies as an appeal from an order
 Any order of dismissal for default

Illustration: In a suit between A and B wherein A claims that a particular property ‘P’ belongs
him while B claims that the said property belongs to him. After hearing all the arguments, the
court will rule in the favor of either A or B. The final decision of the court regarding the above
claim i.e. whether the property belongs to A or B, is a decree.
Essential elements of a Decree
Following are the mandatory elements to be fulfilled for the adjudication to be termed as a
decree.
1. Formal expression: There must be a formal expression of adjudication. In simple terms to be
a decree, the court must formally express its decision in the manner provided by law. A mere
comment of the judge cannot be a decree. The decree follows the judgment and must be drawn
up separately. If a decree has not been drawn up, then there is absolutely no scope of an
appeal from the judgment i.e. No appeal lies against the judgment, if the decree is not formally
drawn upon the judgment.
2. Adjudication: It means judicial determination of the matter in dispute. Hence, if the decision
is of administrative in nature, then it cannot be considered as a decree. The adjudication must
be about any or all of the matters in controversy in the suit. The court should resolve the
matter of controversy through its own, by applying the facts and circumstances of the case
therein.
The Supreme Court in Madan Naik v. Hansubala Devi, held that if the matter is not judicially
determined then, it is not a decree. Also
In Deep Chand v. Land Acquisition Officer, the apex court held that the adjudication should be
made by the officer of the Court, in absence of which it is ought not to be recognized as a
decree.
3. Suit: The Adjudication must have been given in a suit, which is commenced by filing a plaint
in a civil court. Without a civil suit there lies no decree.
However, there are several specific provisions which enable certain applications to be treated
as suits such as proceedings under the Hindu Marriage Act, the Indian Succession Act, the Land
Acquisition Act, etc. They are regarded as statutory suits and the decision given there under
are decrees.
4. Rights of the parties: ‘Right’ means substantive rights and not merely procedural rights.
Similarly, the parties to the rights in controversy should be the plaintiffs and defendants and, if
an order is passed upon the application made by a third party who is a stranger to suit then it
is not a decree. It must have determined the rights of the parties with regard to all or any of
the matters in controversy in the suit.
An order rejecting the application of a poor plaintiff to waive the court costs is not a decree
because it does not determine the right of the party in regards to the matters alleged in the
suit. Dismissing a suit for default in appearance of the plaintiff is not a decree. However,
dismissing a suit on merits of the case would be a decree.
 10

5. Conclusive Determination: The decision must be one which is complete and final as regards
the court which passed it. This means that the court will not entertain any argument to change
the decision i.e. as far as the court is concerned, the matter in issue stands resolved.

Types of Decree: The Civil procedure code recognises three kinds of decrees
(a) Preliminary decree, (b) Final decree, (c) Partially preliminary and partially final decree
(a) Preliminary Decree
A decree is identified as a preliminary decree when adjudication decides the rights of parties
regarding all or any of the matter in dispute but it does not dispose of the suit completely.
In simple terms, the preliminary decree is passed when the court is compelled to adjudicate
upon a certain matter before proceeding to adjudicate upon the complete dispute. It is
considered to be only a former stage. A preliminary decree can be passed in:
 Suit for possession and for rent or Mesne profit (O XX, R12)
 Administration Suits (O XX, R13)
 Suit filed for dissolution of a partnership (O XX, R15)
 Suits related to accounts between the principal and agent (O XX, R16)

However, in Narayanan vs Laxmi Narayan AIR 1953, it was held that the list given in code is not
exhaustive and a court has the right to pass a preliminary decree in cases not expressly
provided for, within the code.
llustration: A files a partition suit against B. During the proceedings, the Court passes a
preliminary decree on the share of A and B. Subsequently, after hearing both the parties and
the arguments contended by both, the court passes a final decree adjudicating upon the said
partition.

(b) Final Decree

A decree is recognised as ‘final’ when it disposes of the suit completely, so far as the court
passing it is concerned. A final decree settles all the issues and controversies between the
parties to the suit by the court of law. Consideration of final decree depends on the facts the
following facts
 No appeal was filed against the said decree within the prescribed time period.
 The disputed matter in the decree has been decided by the highest court.
 When it completely disposes off the suit.

(c) Partly preliminary and partly final decree

A decree shall be held as partly preliminary and partly final, when it determines certain
disputes but leaves the rest open for further decision. What is executable is a final decree and
the one which is not executable is a preliminary decree, unless it merges with the final one.
Illustration: ‘A’ filed a suit for the recovery of possession of a property from B. The court
passed a partly preliminary and partly final decree. So far as final decree is concerned if the
court granted possession of the suit property to A; and it was preliminary as even though
mesne profits were awarded. In this case, only the granting of possession of property to A will
be executable; however, preliminary decree will be executable only after the amount due is
determined.
Amendment of Decree
On an application by the Plaintiff or the Respondent, under Section 152 of the Civil Procedure
Code, any clerical errors in the decrees can be changed or corrected by the courts themselves.
Decree Holder
Under Section 2(3) of the Civil Procedure Code, any person in whose favour a decree or an
order capable of execution has been passed, he/she is referred to as the Decree Holder.
Accordingly, any decree passed in favour of a person who is not even a party to the suit shall
also be considered as the Decree holder under the code.

ORDER
Like decree, Order also is adjudication by the Court. It is a formal expression of any decision of
a civil court having the force of law and is binding on the parties to the suit.
The term Order has been defined under Section 2(14) of the Code as the formal expression of
any decision of a civil court which is not a decree.
Essential elements of order are as follows:
1. It should be a formal expression of any decision.
2. The formal expression should not be a decree.
3. The decision to be pronounced by a civil court.
 11

Thus, an adjudication of the court which is not a decree is an order. As a general rule, an order
of a court is founded on the objective considerations and as such judicial order must contain a
discussion of the question at issue and the reasons which prevailed the court which led to the
passing of the order.
Orders are of two kinds:
1. Appealable orders – Orders against which an appeal lies.
2. Non appealable orders – Orders against which no appeal lies.
Similarly, there are two classes of orders:
1. Final orders : An order that disposes of all of the claims and adjudicates the rights and
liabilities of all the parties in the suit.
2. Interlocutory orders: Interlocutory order only settles an intervening matter relating to
the cause. Such orders are made to secure some end and purpose necessary which are
essential for the progress of case. In simple terms, a temporary order issued during the course
of litigation is called Interlocutory order. Also known as the Interim order, is the decision of
the court which does not deal with the finality of the case but rather settles a subordinate
issue relating to the main subject matter.

JUDGMENT
Under Section 2(9) of the Code, Judgment is defined as the statement given by the Judge on the
grounds of a decree or an order. It refers to what the judge observes regarding all the issues in
matter and the decision on each of the issues. Hence, every judgment consists of facts,
evidence, findings etc. and the conclusion made by the court.
In simple terms, a judgement is the reasoning given by the judge as to why the ‘decree’ was
given which explains the legal reasoning that formed the basis for the decree, along with the
citation of the relevant case laws, arguments by the counsels, and the conclusions reached by
the Court. It forms the concluding part of a civil suit and it determines the rights and liabilities
of the parties to the suit.
“Judgment - A Judicial determination putting an end to the action by any award or redress to
one party or discharge of the other as the case may be.”
Rule 3 of Order XX of the code states that the judgment should be signed and dated by the
judge while declaring it in the open court. It further gives provisions that once signed by the
Judge, the Judgment cannot be amended or altered afterwards, except to correct the clerical or
arithmetical errors caused due to accidental slips or omissions, as mentioned in section 152 of
the Code or further during the review.
The court has to pronounce the judgment in an open court after completion of final arguments,
either on the same day or some other day, after giving due notice to parties or their counsel.
Copy of judgment: Copies of judgment shall be made available to the parties immediately after
the pronouncement of the judgment for preferring an appeal on payment of such charges as
may be specified by the High Court.
Every judgment other than of court of small causes should contain
(1) A concise statement of the case;
(2) The points of determination;
(3) The decision thereon;
(4) The reason for such decision
Foreign Judgment: As per Section 2(6) of the Code 'foreign judgment means the judgment of a
foreign Court. The decree of a foreign Court against a non-resident foreigner is a nullity A
foreign judgment, can, however, form a cause of action in India.
Foreign Court: According to Section 2(6) of the code, 'foreign Court means, "a Court situated
outside India and not established or continued by the authority of the Central Government."
An Indian Court will not give effect to a foreign judgment."
Judge: As per Section 2(8) of the Code of Civil Procedure, Judge' means the presiding officer of
a Civil Court A 'Court is an agency created by the sovereign for the purpose of administering
justice.
Review of judgment
Review means ‘to examine or to study again’. Thus, the review of judgment is to examine or
study again the facts and judgment of the case. It is the substantive power of review by the
court, as specified under Section 114 of the Code. However, the limitations and conditions for
review are provided in Order 47 (Rule 1-9) of the Code. The power to review is conferred by
law, however, the inherent power to review vests alone with the court.
 12

Time limit for filing the Review application of Judgment

As per the Supreme Court Rules, 1966, the Review application shall be filed within the 30 days
from the day the judgment or order passed.
And for appeal against any sentence or judgment in High court, shall be filed within 60 days
from the day of judgment. For the appeal against the death sentence or capital punishment, the
limitation period is 30 days from the passing of order.
Judgment Debtor
Section 2 (10) of the Code defines Judgment debtor as a person who is liable to pay a debt or
damages to the judgment creditor in accordance with a judgment entered by a court against
him, is called Judgment debtor. In simple terms, a person against whom a judgment in respect
of monetary award has been obtained, is regarded as Judgment Debtor.
Difference between Decree, Order and Judgment :-
Decree:
1. Decree is defined under Section 2(2) of Civil Procedure code, 1908
2. Decree is an adjudication conclusively determining the rights of the parties with regards to
all or any of the matter in the controversy.
3. It is necessary that there must be formal expression of the decree
4. Decree must determinate the rights of the parties
5. Decree follows the judgment.
6. Decree is passed in a civil suit.
Order:
1. Section 2(14) of the CPC defines “Order”
2. According to Section 2(14) of the said Code, “order” means the formal expression of any
decision of a Civil Court which is not a decree.
3. An order may originate from a suit by presentation of a plaint or may arise from a
proceeding commenced by a petition or an application.
4. An order cannot be a preliminary order.
5. Every order is not appealable
Judgment:
1. Judgment is defined under Section 2(9) of the Civil Procedure code, 1908.
2. Judgement means statement given by a Judge of the grounds of decree or order.
3. It is not necessary that there should be a formal expression of order in the judgement
4. Judgement states preciously the relief granted.
5. Judgement contains the grounds of decree.
6. Judgment may be passed in civil suits as well as in criminal cases.
7. Judgment is not capable of execution.
…………………………………………………………………………………………………………………………………………...
7. What do you understand by suits in particular case? Explain with case material.
Not all suites have a uniform procedure to be followed. There are some suits that follow a
different and specific procedure as per the Code of Civil Procedure, 1908. Part IV of the Code of
Civil Procedure, 1908 deals with Suits in Particular Cases. Based on the type of procedure
involved, suits are categorized as Suits in General and Special Suits. Sections 79 to 93 of the
Code of Civil Procedure, 1908 (herein referred to as ‘CPC’) govern special suits and Orders 27
to 37 of CPC deal with the procedure involved in special suits.
1. Suits by or against the government or public officers in their official capacity
Section 79-82 of the Code deals with suits by or against the government or public officers in
their official capacity. According to Section 79 of the Code, when any suit is filed against the
government, then the government shall be referred to as defendant in the suit and likewise, if
any suit is filed by the government, then the government will be referred to as Plaintiff in the
suit. However, it is pertinent to note that if any such suit is filed either by the Central
Government or against the Central Government, then the plaintiff or defendant, as the case
may be, shall be the Union of India. And, if any such suit involves State Government, then, the
party to suit will be referred to as the State.
In state of Rajasthan v. Vidyawati, The Hon’ble Supreme Court observed that in case if any
wrongs are committed by the government employees during their employment, then the
government itself will be liable for the acts committed by its employees. However, such acts
must not include the sovereign powers of the government.
 13

In Bhagchand Dagadusa vs The Secretary Of State For India on 15 August 1923, the Bombay
High Court observed it was observed by the court that the procedure to deal with suits by or
against the government is laid down under order XXVII and Section 79-82 of the Code.
However, those rights and liabilities that are enforceable either against the government or by
the government are not covered by these provisions.
Requirement of notice ( Section 80(1))
In ordinary suits, i.e. suits between two or more individuals, there is no mandate to serve
notice to the defendant by the plaintiff before instituting a suit. However, Section 80 is an
exception to this general rule followed in ordinary suits. This is so because as per Section 80,
the plaintiff can sue neither the government nor against a public officer with regards to acts
that are purported to be completed by the public officers working in the official capacity. Such
a suit by or against the government official can only be filed after the expiration of the next
two months of receiving the notice by the government or public official in writing.
2. Suits by aliens
This section discusses those cases wherein aliens will be permitted to institute a
suit. According to Section 83 of CPC, the alien enemies residing in India, after seeking
permission from the Central Government as well as the alien friends are allowed to sue as if
they were citizens of India. The alien enemies can file the suit in any court competent to try a
suit of a citizen. However, it is pertinent to note that the alien enemies residing in India
without permission of the Central Government or residing in a foreign country are not allowed
to sue in any court of India. Furthermore, Section 84 of the code permits the foreign state to
institute a suit incompetent court.
3. 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 XXXV 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.
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.
4. Arbitration
Section 89 of the CPC, 1908 provides for the settlement of disputes outside the courts. It is one
of the most important provisions given in the Code, This section makes it necessary for the
parties to resolve their disputes falling under the domain of civil litigation through the
mechanisms of Alternative Dispute Resolution. In cases where the court observes that there is
the existence of such elements of a settlement acceptable and favorable to both parties, then
the court refers to such cases for arbitration, conciliation, Lok Adalat, or mediation.
Section 89(2) provides the procedure followed in different mechanisms of Alternative Dispute
Resolution i.e. arbitration, conciliation, Lok Adalat, or mediation.
 Friendly suits : A special type of suit namely a friendly suit is defined under Section 90
of the CPC and Order XXXVI lays down its procedure. It is a special kind of suit wherein the
plaintiff and defendant do not approach the court and the plaintiff in such suits does not
present a complaint. The procedure used in ordinary civil litigation is different from that in
friendly suits. The parties in friendly suits are concerned about the decision on any question of
fact or law. For determining the question of law or question of fact, both parties agree in
writing whereby they state these questions similar to the manner a case is filed. The same is
done to obtain the opinion of the court. The court may decide the question if it is satisfied that
such a question is fit to be decided. Order 36 Rule 1-6 lays down the procedure for special
cases or friendly suits.
 14

 Public nuisances and other wrongful acts affecting the public: Section 91 deals with
suits concerning public nuisances and any other wrongful acts affecting the public. It states
that in the case when public nuisance or any wrongful act that is harming the public at large is
observed, then an Advocate General can file a suit for declaration and injunction shall be made.
Even two or more two persons can institute a suit against such nuisance even if no harm is
caused to them with the permission of the court.
5. Suits by Indigent Persons
When a person wants to approach a civil court seeking justice has to file a suit by paying
prescribed court fee. Any suit filed without prescribed court is liable to be rejected. In certain
cases, the plaintiff may not be able to pay the prescribed court fee due to poverty or financial
instability on some other reason. In order to rescue/protect such persons. Provisions have
been made under Order XXXIII of Code of Civil Procedure,1908 to provide exemption from the
court fee.
An ‘Indigent person’ is one, who is not having sufficient means to pay court fee prescribed by
law. In other words he is poor and cannot afford court fee. Order XXXIII, Rule 1 of the Code of
Civil Procedure, provides that a suit be instituted by an indigent person such suit is also
known as ‘Pauper Suit’.
…………………………………………………………………………………………………………………………………………...
8. Discuss the concept of limitation with notified exceptions if any.
The law of limitation finds its root in the maxims “Interest Reipublicae Ut Sit Finis Litium”
which means that in the interest of the state as a whole there should be a limit to litigation and
“vigilantibus non dormientibus Jura subveniunt” which means the law will assist only those who
are vigilant with their rights and not those who sleep upon it. The law of limitation specifies
the statutory time frame within which a person may initiate a legal proceeding or a legal
action can be brought. If a suit is filed after the expiry of the time prescribed it will be barred
by the Limitation. It means that a suit brought before the Court after the expiry of the time
within which a legal proceeding should’ve been initiated will be restricted.
The basic concept of limitation is relating to fixing or prescribing of the time period for barring
legal actions. According to Section 2 (j) of the Limitation Act, 1963, ‘period of limitation’ means
the period of limitation prescribed for any suit, appeal or application by the Schedule, and
‘prescribed period’ means the period of limitation computed in accordance with the provisions
of this Act.
The first Limitation Law was established in 1859 which came into operation in 1862. The law
of limitation developed in stages and finally took the form of Limitation Act in 1963. It was
enacted on 5th October, 1953 and came into force from 1st January, 1964
The Limitation Act, 1963 does not affect the provisions provided under The Indian Contract
Act, 1872. The Act is made effective for the reason that it bars the jurisdiction of the court to
entertain the actions that are frivolous and to avoid the long proceeding of the pending actions
by the complainants.
Significant of The Limitation Act, 1963:
 The Limitation Act contains 32 Sections and 137 Articles. The articles have been divided
into 10 parts.
 The main objective of act is to provide a specific time frame within which a person can
file a suit in a court. If such law are not enacted then it will lead to never ending litigation as
the person could file a suit for the cause of action which was done many years back. In other
wors the law of limitation aims to protect the lengthy process of penalising a person indirectly
without an offence.
In Balakrishnan v. M.A. Krishnamurthy, it was held by the Supreme Court that the Limitation
Act is based upon public policy which is used for fixing a life span of a legal remedy for the
purpose of general welfare.
 Limitation Bars Remedy: Section 3 lays down the general rule that if any suit, appeal or
application is brought before the Court after the expiry of the prescribed time then the court
shall dismiss such suit, appeal or application as time-barred. The law of limitation only bars
the judicial remedy and does not extinguish the right. In other words, It means that the statute
of limitation prescribes only the period within which legal proceedings have to be initiated. It
does not restrict any period for setting up a defence to such actions. Hence, the original right
to suit is not barred. However, Section 27 is an exception to this rule.
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.
 15

 A person having a legal disability is given a privilege in the act. If a person who is entitles to
file a suit, appeal or application for execution of a decree but if he falls in following three
categories :-
 A Minor
 An insane person
 An idiot person
He would be allowed to make an application after his disability ceases and his timer
period as specified in the LA, 1963 would began from the day his legal disability ceased.
If such a person ceases to be affected by two disabilities then the period of filing a suit or
making an appeal or application would began on the day when both of his disability would be
ceased and not before it.
If the disability of a person continues till the death of the person who has to file a suit or make
a application or appeal, then after his death his legal representative can do so within time
period as specified. Even if the legal representative is affected by the legal disabilities as
mentioned above he will be governed with the same provisions as for the person with a legal
disability.
 In any suit or application where the law of limitation has been prescribed in the LA,
1963 is based upon the fraud of the defendant or his agent; or the knowledge of right to title
on which any suit or application is made by fraud on such person; or the suit or application is
made for consequences as a result of a mistake; or when any document is necessary to
establish the right of the plaintiff has been frequently concealed from him, the period of
limitation would start from the date on which the fraud or such mistake has been identified
not before it.
 Provision relating to the Acquisition of easements by prescription: If any person is
enjoying the access and use of light air to any building with peace and without any obstruction
for the past 20 years, he shall have right to continue do so. The person has to prove that there
had been no obstruction to his usage of a particular area over which he claiming right. The suit
must be filed within 2 years from the date on which the obstruction is made with regard to
usage of a paticular area. But where the government is using the area, the government shall
prove that they had been using that particular area for the last thirty years.
 Sufficient Cause: Sufficient cause means that there should be adequate reasons or
reasonable ground for the court to believe that the applicant was prevented from being
proceeding with the application in a Court of Law.
 Extinguishment of Right: General Rule that the law of limitation only bars the remedy
but does not bar the right itself. Section 27 is an exception to this rule. It talks about adverse
possession. Adverse possession means someone who is in the possession of another’s land for
an extended period of time can claim a legal title over it. In other words, the title of the
property will vest with the person who resides in or is in possession of the land or property
for a long period. If the rightful owner sleeps over his right, then the right of the owner will be
extinguished and the possessor of the property will confer a good title over it. Section 27 is not
limited to physical possession but also includes de jure possession. As per the wordings of this
Section, it applies and is limited only to suits for possession of the property.
 Exceptions;
Section 3 is a mandatory rule under which the court dismisses a suit beyond the period of
limitation.
However, Sections 4 to 24 provide certain exceptions to this general rule of Section 3.
The expression 'in an ordinary case' in sub-section (2)(a)(1) of Section 3 of the Limitation Act
can only mean that the plaintiff must present in Court a duly stamped plaint to the proper
officer which as regards limitation will be effective only from the date on which it is presented.
Section 5 of the Limitation Act, 1963 is not applicable to:-
(i) The suits and proceedings under Order XXI of the Code of Civil Procedure, 1908 (as Section
5 itself contains).
(ii) Section 25 of the Indian Contract Act, 1872.
(iii) Where any special or local law prescribes for any suit, appeal or application a period of
limitation different from the period prescribed by the Schedule, the provisions of Section 3
shall apply as if such period were the period prescribed by the Schedule and for the purpose of
determining any period of limitation prescribed for any suit, appeal or application by any
special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only in
so far as, and to the extent which, they are not expressly excluded by such special or local law
(Section 29(2).
(iv) Save as otherwise provided in any law for the time being in force with respect to marriage
and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law
(Section 29(3).
 16

(v) Sections 25 and 26 and the definition of 'easement in Section 2 shall not apply to cases
arising in the territories to which the Indian Easement Act, 1882 may for the time being extend
(Section 29(4)
…………………………………………………………………………………………………………………………………………...
9. Critically examine the legal provisions of Set-off and counter claim.
A civil suit is instituted by filing a plaint in the appropriate court which has jurisdiction over
the subject-matter. A plaint is filed by the plaintiff. Similarly, the defendant has to file a written
statement, i.e., response to the content in the plaint. This written statement, in some cases, is
accompanied by set-off and counter-claim. So, set-off and counter-claims are the cross-claims
done by the defendant and these cross-claims cannot be contested unless they are
accompanied by the written statement. A written statement is a reply to the plaint, and such
reply has to be given within 30 days the date of the filing of the plaint.

Set-Off
Set-off is related to debts. It is the reciprocal claim made by the defendant. Set-off can be used
only under the suit for recovery of money. This can be better under by an example.
Suppose, A files a suit against B claiming that the latter is Rs.20,000 due to him. Now, B also
has a claim against A that he is Rs.10,000 in debt to the former, i.e., A is Rs.10,000 in debt of B.
Here, both are mutually indebted to each other, and they both have to pay off the debts due to
each other. Instead of filing a fresh suit altogether, B files a set-off claim along with the written
statement in response to the plaint filed by A.
Set-off is dealt under Order VIII Rule 6, and it says that such written statement along with a
set-off should be considered by the Court as much as plaint because it too has a subject matter
that is in dispute. However, there certain conditions that have to be met for filing a set-off by
the defendant. They are:
 The suit initiated must be for recovery of money. So, set-off can be filed only in money
suits.
 The defendant must claim only the amount that he has already lent to the plaintiff. The
defendant cannot claim the money he has not already lent. It means the money should be
ascertained.
 The ascertained money should be legally recoverable by the defendant from the plaintiff. It
should not be barred by any laws of limitation.
 The recoverable money by the defendant should be defendant or defendants if there are
many, and in the same way, it should be recovered from the plaintiff or plaintiffs if there
are many.
 The set-off should be filed only in the court which has financial jurisdiction.

Counter-claim
Counter-claim is dealt under Order VIII Rules 6-A to 6-G of the Code of Civil Procedure, 1908.
It is a claim which is separate and independent from that of the plaintiff. It is also cross-claim
but not necessarily arise out of the same cause of action contained in the plaint. Unlike set-off,
a counter-claim need not be mandatorily related to the recovery of money. It could be
regarding any civil disputes.
The characteristics of counter-claim are as follows:
 Counter-claim also should accompany a written statement. If it is not filed along with the
written statement, the court usually does not allow the defendant to file the counter-claim
at a later stage in the suit, if his intention is to prolong the proceedings of the suit.
Nonetheless, the counter-claim can always be filed as subsequent pleading under Rule 9 of
the same Order.
 Counter-claim was brought into existence to avoid multiplicity of proceedings and thereby
save a lot of court’s valuable time.
For example, A files a suit against B and B also wants to file a suit against A for a completely
different subject matter. Instead of filing a separate suit, B makes a counter-claim against A.
Here, a lot of time is being saved since the counter-claim proceedings are being carried on by
the original suit proceedings.
 The counter-claim is treated on par with the plaint, and the plaintiff should file a written
statement in response to the counter-claim. The court can pronounce final judgment both
on the original claim and the counter-claim.
 For the defendant, the counter-claim can be filed by the defendant against the plaintiff. In
some instances, he can claim from co-defendants along with the plaintiffs. But a counter-
claim solely to claim from the co-defendants is not entertained by the courts.
 The counter-claim should be filed only when the subject matter is not barred by the
Limitation Act.
 17

Earlier, set-off or counter-claim were supposed to be filed for only money suits. But an
amendment to CPC in 1976 has covered the concept of counter-claim under Order VIII Rules
6-A to 6-G as discussed above to include other civil natured claims against the plaintiff and
also to save the time by reducing suits between the same parties.
As a final note, set-off can be used for recovering money in suits related to money and counter-
claim can be used for any civil natured claims. Both have to be filed along with the written
statement, and both have to be filed by the defendant against the plaintiff. These two concepts
are so similar in nature that they tend to reduce the burden of filing a fresh suit against the
plaintiff with regard to their claims.
…………………………………………………………………………………………………………………………………………...
10. What are the essential components of a Plaint.
Plaint is defined in order VII of CPC. Rules 1to 8 of order relate to particulars in a plaint. Rule 9
lays down procedure on plaint being admitted. Whereas rules 10 to 10-B provide for the
return of plaint, and appearance of parties, rules 11 to 13 deal with rejection of plaint. Rules
14 to 17 contain provisions for the production of documents. Order VII should be read with
section 26 of the code.
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. It can be said to be a statement of claim, a
document, by the presentation of which the suit is instituted. However, the expression “plaint”
has not been defined in the code. It is a pleading of the plaintiff.
In plaint, the plaintiff should alleged facts about his cause of action. A plaint which is presented
to a civil court of appropriate jurisdiction contains everything, including facts to relief that the
plaintiff expects to obtain.
Particulars of the plaint:[Order VII]
 The name of the particular court where the suit is brought; [Rule 1(a)]
 The name, place, and description of the plaintiff’s residence; [Rule 1 (b)]
 The name, place, and description of the defendant’s residence; [Rule 1 (c)]
 A statement of unsoundness of mind or minority in case the plaintiff or the defendant
belongs to either of the categories; [Rule 1 (d)]
 The facts that led to the cause of action and when it arose; [Rule 1 (e)]
 That fact that point out to the jurisdiction of the court ; [Rule 1 (f)]
 A statement of the value of the subject-matter of the suit for the purpose of jurisdiction and
court fees; [Rule 1 (i)]
 The relief claimed by the plaintiff, simply or on the alternative; [Rule 1 (g)]
 Where the plaintiff files a suit in a representative capacity the facts showing that the
plaintiff has an actual existing interest in the subject matter and he has taken steps that
may be necessary to enable him to file such a suit; [Rule 4]
 Where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount
so allowed or relinquished; [Rule 1 (h)]
 Where the suit is for recovery of money, the precise amount claimed; [Rule 2]
 Where the suit is for accounts or mesne profits or for movables in the possession of the
defendant or for debts which cannot be determined, the approximate amount or value
thereof; [Rule 2]
 Where the subject-matter of the suit is immovable property description of the property
sufficient to identify it, e.g. boundaries, survey numbers, etc; [Rule 3]
 The interest and liability of the defendant in the subject-matter of the suit;[Rule 5]
 Where the suit is time-barred, the ground upon which the exemption from the law of
limitation is claimed; [Rule 6 ]
Admission of plaint:
Rule 9 lays down the procedure when the plaint is admitted by the court. It provides for the
filling of copies of the plaint by the plaintiff and also requires him to pay requisite fees for the
service of summons on the defendants within seven days.
From of the plaint:
The plaint divided into three important parts such as:
1. Heading and title 2. Body of the plaint, 3. Relief claimed.
1. Heading and Title:
(a) Name of the court: The name of the court should be written on the plaint as the heading. It
is not necessary to mention the name of the presiding officer of the court. The name of the is
sufficient,
Example:- IN THE COURT OF 1ST ADDL DISTRICT CIVIL JUDGE, KURNOOL.
O.S N.O 123/2022
 18

(b) Parties to the suit: There must be two parties in every suit, namely, the plaintiff and the
defendant. However, there may be more than one plaintiff, and defendant.
All particulars of the parties such as Name, Residence, Father’s name, Age, Occupation etc.
which are necessary to identify the parties, must be stated in the plaint filed behalf of plaintiff
under Order VII Rule 1.
In the case of more than one party, all of their names have to be mentioned in the plaint
according to their pleadings.
In the case of minors, a minor cannot sue nor be sued. If one of the parties is a minor or of
unsound mind, it will have to be mentioned in the cause title.
Example:- Narayana Swamy Plaintiff
-Versus-
Harsha Defendant

(c) Title suit: The title of the suit contains the reasons for approaching the court and the
jurisdiction before which the plaint is initiated.
Example:- PLAINT FILED ON BEHALF OF PLAINTIFF UNDER ORDER VII RULE 1
OF CIVIL PROCEDURE CODE

2. Body of the Plaint:

It is the body of the plaint wherein the plaintiff describes his/her concerns in an elaborative
manner. That should be divided into short paragraphs, which each contains one fact. The body
of the plaint is divided into two further parts which are as follows:
(a) Formal part: The formal part contains the following essentials:-
 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.
 The plaint must state all the facts showing how the court has pecuniary and territorial
jurisdiction over the subject-matter of the suit.
 The value of the subject matter of the suit must be stated properly for the purpose of
the pecuniary jurisdiction of the court and court fees.
 Statement regarding minority.
 The representative character of the plaintiff.
 The reasons why the plaintiff wants to claim exemptions under the law if the suit is
initiated after the period of limitation.
(b) Substantial portion: In this portion, 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 must be duly mentioned.
 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.
 Where the defendants are more than one and if the liability is not joint, then the
individual liability of each and every defendant must be shown separately.
 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.

3. Relief Claimed
Every plaint must state specifically the relief claimed by the plaintiff either simply or in the
alternative. It is the last part of the plaint. It must be claimed 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 must be done with utmost
carefulness because the claims in the plaint cannot be backed by oral pleadings.
Signature and verification:
The signature of the plaintiff put at 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.
The plaint should also be duly verified by the plaintiff. Where the plaintiff is unable to do so,
his her representative may do the same after informing the court.
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. The signature of the plaintiff/verifier, along
with the date and the place, at the end of the plaint is essential.
The verification can only be done before a competent court or in front of an Oath
Commissioner.
 19

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.
A plaint can be rejected under the following scenarios:
 Where the cause of action is not disclosed
 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.
 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.
 Where the suit stems from a statement which has been essentially barred by law.
…………………………………………………………………………………………………………………………………………...
11. Explain the procedure under Civil Procedure Code regarding appearance and
examination of parties as well as witnesses.
A civil proceeding initiates with the plaintiff filing a plaint before the appropriate civil court
and the defendant being called or summoned by the court for the proceedings. The general
principle of natural justice states that no one shall be condemned unheard.
It means that everyone has a right to be heard before a court of law in the most reasonable and
fair manner. Hence, it becomes vital that the proceedings are carried on in the presence of the
parties to allow them to hear the claims or averments made by the opposite party and reply to
them adequately.

Appearance by the Parties to a Suit

Order IX of the CPC deal with appearance and non-appearance of parties before a court of law.
The general procedure that is followed is that the plaintiff files a plaint before the court which
is scrutinized by the court before admission. If the plaint is in accordance with the
requirements of Order VII and the court finds the plaint admissible, it will admit the plaint and
issue summons to the defendant for appearance in the court on a specified date and time.
The provision also gives an alternative to the parties to be present by appearing through their
respective pleaders. It means that even if the plaintiff or the defendant is absent, their
respective lawyers can attend the proceeding and answer on their behalf.
The provision uses the term “shall” which leaves no scope option with the parties to refuse to
appear before the court and the court is empowered to decide the suit in the favour of the
party present on the fixed day. If both the parties appear on the said date, the suit proceeds
smoothly and the hearing continues until it is adjourned and finally disposed of. However,
there can be three situations besides the presence of the parties. Firstly, that both the parties
are absent, secondly, that the plaintiff is absent but the defendant is present and lastly, that the
defendant is absent but the plaintiff is present.
The power is discretionary and not mandatory. It means that the court needs to look into the
reasons why the parties failed to appear, the consequences of an order of dismissal on the
plaintiff and the defendant and whether the order is in the interest of justice or not. ‘
If the court is completely satisfied that there are no sufficient reasons with the parties for their
absence from the hearing, only then the court can dismiss the plaint.
In Sham Dasani v. Central Bank of India, Chief Justice Beaumont held that dismissing the plaint
of the plaintiff without hearing him/her in the matter violates his/her right to fair trial and
thus, such power should be exercised with caution and only in the interest of justice. However,
the plaintiff is entitled to institute a fresh suit against the defendant in the same matter under
Rule 4 even if the prior suit was dismissed for non-appearance.
There can be three distinct situations when the defendant does not appear, i.e.
(a) The summon was served but the defendant did not appear,
(b) Summons was not served to the defendant and
(c) There was a delay in serving the summons.
If it is proved that the summons was duly served to the defendant, the court is empowered to
hear the ex-parte, i.e. in the absence of the defendant. The court may hear the claims of the
plaintiff and pass an order if it believes that the claims are duly proven. If it is proved before
 20

the court that the summon was not served to the defendant, the court must grant another
opportunity for the summon to be served and must fix another date for hearing after the
summon is served.
If the summon is served lately such that the defendant could not have received sufficient time
to appear before the court, the court should adjourn the hearing on a fixed day to another
appropriate day that the court deems fit to allow the defendant to appear. It must be noted
that the power to adjudge a matter ex-parte is completely discretionary and the judge may opt
to adjourn the proceedings to grant a second chance to the defendant. However, the procedure
in the other two cases is mandatory and the court cannot do away with these requirements.
However, in practice, this is not generally followed and the plaintiff is given the opportunity to
explain the reasons for his non-appearance.
There can further be two situations when the plaintiff does not appear and the defendant does,
i.e. the defendant may accept the claims of the plaintiff in to or he may accept the claims in
part. When the defendant accepts the entire claim, the court should pass an order in favour of
the plaintiff and direct the defendant to pay appropriate damages or any other prayer made by
the plaintiff. On the other hand, if the claim is accepted in part, the part which has not been
accepted or denied should be dismissed by an order.

Examination of Parties by the Court

Order X of the CPC deal with the examination of the parties to a suit by the court. Examination
means that the court shall ask certain questions to the plaintiff and the defendant with respect
their claims, replies and counter-claims to frame the relevant issues that need to be addressed
in the proceedings.
The examination does not connote an examination by the adverse party in a witness box but
merely an inquiry conducted by the judge before proceeding with the case. After the plaint and
written submissions are submitted, the court holds its first hearing in the presence of both the
parties and/or their pleaders and the examination is conducted at this stage.
Rule 1 of Order X provides that at the first hearing of the case when the plaint and written
statement are submitted to the court, the court shall ensure whether the parties accept or
deny the allegations, claims and counter-claims of the other party as mentioned in the plaint
or the written statement.
It is essential to clear the position of the parties with respect to each other’s claims so that the
court can proceed with only those issues or claims which are in dispute and does not waste
time on those which are being accepted. As the examination progresses, the court makes a
record of all the things accepted or denied by the parties.
If the court believes that the parties to a suit are not violent towards each other and are duly
co-operating in the process, it may order the parties to resolve the matter through mediation
or other alteration means.

For instance, if ‘A’ institutes a suit against ‘B’ for transfer of certain property in A’s name, the
court may ask the parties how they acquired title over the property, whether the property is
self-acquired or inherited, the value of the property, etc. The court is also empowered to
examine and put questions to any witness or any person present in the court who is
Acquainted with the facts and circumstances of the case.

Appearance and examination witnesses:

The general procedure for issue of processes to witnesses is the same as that in respect of
defendants. Order 16 Rule 1 of CPC stipulates that a list of witnesses has to be submitted to the
court by the parties. Such a list consisting of witnesses has to state details such as whether the
witnesses are summoned for giving evidence or to produce documents or both. This list has to
be submitted within fifteen days from the date on which the issues are framed.
But the entire summons process itself is not mandatory under CPC. A witness can also be
produced before the court without the name in the witness list or even without a summons
under Rule 1A of Order 16. This is used in cases where the party does not require the court’s
help in bringing a witness to the court. So, only when the party is unable to bring the witness
by himself, the court’s help is sought and a summon is sent.

Under Rule 14 of Order 16, the court may also summon a witness suo moto if the court feels it
is necessary to serve justice. The court can examine such witnesses on its discretion and may
require such a person to produce any evidence or documents he can.

…………………………………………………………………………………………………………………………………………...
 21

12. “Limitation bars the remedy but does not extinguish the right” Comment.
The word “right” is used to mean a primary & substantive right. In the wider sense of the
word, remedy is also a right but a secondary right, a procedural right. The rule that limitation
bars the remedy but not the right is contained in Section 3 of the Act.
Section 3 states that every suit instituted, appeal preferred & application made after the
prescribed period shall be dismissed. The second part of the rule that it does not bar the right
is a necessary corollary of the first since Section 3 only bars the judicial remedy.
The rule of limitation is a rule of procedure, a branch of adjective law. It does not either create
rights or extinguish rights, except in the case of acquisition of title to immovable property by
prescription under Section 27 of Limitation Act, 1963.
After the remedy is barred by limitation, the right remains as a moral obligation or can be
availed to furnish consideration for a fresh enforceable obligation. So a right to the debt does
not cease to exist only because its recovery is barred by the statute of limitation. A debtor can
pay the “time barred debt” and cannot claim it back on the plea that it was barred by
limitation.
Similarly, if a debtor has several debts due to a creditor & he makes payment without any
specification, then the creditor can adjust it towards any of the debts even if recovery of such
debts is barred by time.
Since the limitation bars the remedy by filing a suit & does not extinguish the right, a
defendant can set up a right in defence though he could not have enforced the right by way of a
suit. There is no limitation against a defence.
The only exception to this rule that limitation bars the remedy and not the right is contained in
Section 27 of Limitation Act, 1963. Section 27 states that in a suit for possession of any
property, on the determination of limitation period, not only the remedy but the right is also
extinguished. In such a circumstance, a defendant cannot also set up such an extinguished
right by way of defence.
In case PNB vs. Surendra Prasad Sinha, AIR 1992 SC, PNB gave loan to Mr. Dubey, Surendra
Prasad Sinha stood guarantor & executed a security bond giving FDR to bank. Dubey defaulted
in payment of loan. Bank did not proceed against Mr. Dubey for 3 years. Limitation expired.
Even after 4 years when FD of Surendra Prasad Sinha was to mature, bank deducted loan &
interest amount from FDR of Surendra Prasad Sinha & credited the remaining amount in
savings account of Surendra Prasad Sinha. Sinha filed criminal complaint for 405, 409 criminal
misappropriation. HC declined to quash complaint. SC quashed the complaint.
Supreme Court said though the right to enforce the debt by judicial process is barred, the
right to debt remains. The time barred debt does not cease to exist by virtue of Section 3. The
debt is not extinguished but the remedy to enforce the debt is destroyed.

In Balakrishnan v. M.A. Krishnamurthy (1998) 7 SCC 123, it was held by the Supreme Court
“that the Limitation Act is based upon public policy which is used for fixing a life span of a legal
remedy for the purpose of general welfare. It has been pointed out that the Law of Limitation
are not only meant to destroy the rights of the parties but are meant to look to the parties who
do not resort to the tactics but in general to seek remedy. It fixes the life span for legal injury
suffered by the aggrieved person which has been enshrined in the maxim ‘interest
reipublicaeut sit finis litium’ which means the Law of Limitation is for general welfare and that
the period is to be put into litigation and not meant to destroy the rights of the person or
parties who are seeking remedy. The idea with regards to this is that every legal remedy must
be alive for a legislatively fixed period of time”
…………………………………………………………………………………………………………………………………………...
13. Explain Resjudicata. Distinguish it from Estoppel, Refer case law.
Res Judicata is a Latin term which means ‘a matter already judged’. In general, a court will not
entertain a matter which has been already adjudged between the same parties. Also, such
matter is no longer subject to appeal. Section 11 of Code of Civil procedure, 1908 embodies
Doctrine of Res judicata or rule of conclusiveness in India. It states that no court shall try a suit
or issue in which issue directly and substantially is the same as the earlier suit, between the
same parties or their representatives and for the same relief. Further, the earlier suit must be
adjudged by the competent court and no longer subject to appeal. This doctrine was accepted
in all civilized legal systems.
“Res” means “subject matter” and “Judicata” means “decided”. This doctrine is formed in the
larger public interest and it requires that all litigation, sooner or later, must come to an end.
This principle is based on justice, equity and good conscience. Means, if a party who has
succeeded once in a suit, should not be harassed in the further proceeding involving the same
 22

issue. Res judicata strives to strike a balance between two pits, first the efficiency of the
judicial system by providing final judgment. whereas, second, it protects the parties’ interests
and rights which have been decided already. Section 11 of the code contains the principle of
public policy in statutory form. it embodies the rule of conclusiveness and operates as a bar to
try the same issue twice.
Satyadhyan Ghosal v. Deorjin Debi (AIR 1937 Nag 132)
The Doctrine of Res Judicata as explained in case of by Das Gupta, Justice; as:-
” The principle of res judicata is based on the need of giving finality to judicial decisions. What
it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as
between past litigation and future litigation. When a matter, whether on a question of fact or a
question of law, has been decided between two parties in one suit and the decision is final,
either because no appeal was taken to higher court or because the appeal was dismissed, or no
appeal lies, neither party will be allowed in a future suit.”
Res Judicta and Estoppel:
Some times, res judicata is treated as a part of the principle of estoppel; while estoppel is a
part of the Law of Evidence. Estoppel prevents a man from saying one thing at one time and
doing other at another time. Res judicata prevents a man from repeating the same matter in
successive suits. Following are the notable points of difference between Res Judicata and
Estoppel.
Res Judicata Estoppel
1. It excludes the Jurisdiction of the Court 1. It shuts the mouth of the party
2. It results from the Court’s decision 2. It result from the acts of the parties
3. It is based on the public policy 3. It is based on the principle of equity
4. It avoids multiplicity of suits 4. It avoids multiplicity of representations
5. It binds both the parties to a litigation 5. It binds only that party who made the
previous statement or showed the previous
conduct.
…………………………………………………………………………………………………………………………………………...
14. What is temporary Injunction? When may the court pass an order of Injunction?
Temporary injunction – perpetual injunctions – as defined by Section 37 of the Specific Relief
Act, 1963 is “the decree made at the hearing and upon the merits of the suit, the defendant is
thereby perpetually enjoined from the assertion of a right, or from the commission of an act
which would be contrary to the rights of the plaintiff”.

Temporary Injunction & its basic principles

A temporary injunction is an interim remedy to maintain the status quo of the parties with
regards to the property in dispute during the pendency of the case. The aim of temporary
injunctions in the Indian law is to protect a party to the suit against injury by violation of his
right for which he could not be adequately compensated in damages recoverable in the action
if the uncertainty were resolved in his favor at the trial..
Requirements for Temporary Injunctions
The case of Dalpat Kumar And Another v. Pralhad Singh And Others (1991) has settled the three
main requirements for granting a temporary injunction, they are:
1. Prima Facie Case
A suit consists of a seriously disputed question. The facts in those questions encourage the
probability of entitlement to relief for the plaintiff or the defendant. A prima facie case does
not mean that the plaintiff or the defendant come up with an irrefutable argument that will in
all probability succeed in a trial. It only means that the case they build for their injunction
must be meritorious enough, not to be rejected instantly.
2. Irreparable Loss
If an irreparable loss were to be incurred by an individual with regards to the suit before his
legal right is established in the trial, it would be a cause of grave injustice. However, it must be
noted that illustrations like frustration over a loss of something with sentimental value will
not be regarded as irreparable damage. On the other hand, things that by nature can be
remedied will be considered to be irreparable damage if the court were to have no fair or
reasonable address. Very often an injury is irreparable where it is continuous and repeated or
where it is remediable at law only by a multiplicity of suits. Sometimes, the term irreparable
damage refers to the difficulty of measuring the amount of damages inflicted. However, a mere
difficulty in proving injury does not establish irreparable injury.
 23

3. Balance of convenience
The court needs to compare the case of parties, comparative mischief or inconvenience which
is likely to sue from withholding the injunction will be greater than which is likely to arrive
from granting it.

Rules under Order XXXIX of the Code of Civil Procedure, 1908. On Temporary Injunctions:-
1. Order 39, Rule 1 talks about the cases in which the court may grant a temporary
injunction as a statutory relief, they are:
 In the case of property dispute, if the property in question is under a risk of being
wasted, damaged or alienated or wrongfully sold by an individual involved in the suit.
 If an individual threatened or displayed intention of removing or disposing off of his
property with a motive to defraud his creditors. This is specific to the defendant only.
 If the plaintiff is threatened – by the defendant – to be dispossessed or injured in the
context of the property dispute under question.
 If the defendant were to commit a breach of peace or contract. The aforementioned
ground is also highlighted in Order 39, Rule 2 of the CPC, 1908.
 Lastly, the court may issue an injunction if it is of the opinion that it would be an act in
the interest of justice.
2. Order 39, Rule 2-A talks about the non-compliance of an individual with regards to an
injunction, they are:
 It mandates the detainment of that individual in civil prison for not more than three
months.
 Furthermore, it warrants the attachment of property of that guilty individual for not
more than a year. However, if the delinquency were to continue, the property may be
sold.
 In the case of Ram Prasad Singh v. Subodh Prasad Singh (1983), it was highlighted that it
is not necessary for an individual to be a party to the concerned suit, to be liable under
Order 39, Rule 2-A of the CPC, 1908, provided it is known that he was an agent of the
defendant and violated the injunction despite being aware of the same.
3. Usually, the court is required to issue a notice to the opposite party regarding the
application of injunction, but through Order 39, Rule 3, the court can grant an ex-parte
injunction when it is under the belief that the object of the injunction would be defeated
because of delay.
The Supreme Court through the case of Union of India v. Era Educational Trust (2000), laid
down certain guiding principles for courts to follow while deciding upon an ex-parte
injunction, they are:
 Whether the plaintiff will be a victim to irreparable mischief by the defendant?
 Whether the weight of injustice will be heavier if an ex-parte injunction is not granted?
 Whether the timing of applying for an ex-parte jurisdiction was maliciously motivated?
 The courts will also consider the general principle of balance and irreparable loss.
4. Order 39, Rule 4 lays down that an injunction may be discharged, varied or set aside, if any
dissatisfied party makes an appeal against it, provided that:
 The application for injunction or documents advocating the same included knowingly
false or misleading statements and the injunction was granted without listening to the
other party. Thus, the court will vacate the injunction. However, it can also stick with
the injunction if it considers – the reason is to be recorded – the same not be necessary
in the discourse of injustice.
 Furthermore, the court may also set aside the injunction if, due to a change of
circumstances, the party against whom the injunction is granted, has suffered
unnecessary hardships.
5. Order 39, Rule 5 makes an important point that, if an injunction is granted against a
corporation or a firm, the authority of the is not limited to the corporation as an entity alone,
members and officers of the corporation whose personal action it seeks to restrain are also
included under its ambit.
…………………………………………………………………………………………………………………………………………...
15. What is Summons? State the modes of service of Summons.
The definition of the term ‘summons’ has not been provided under any statute, but in simple
terms, it means an instrument that is issued by a court to any person to be present before it in
legal proceedings.
When a suit has been filed against a person (criminal or civil), a summon is issued by the court
to such person requiring him to be present before it on the given time and date for the hearing.
Summons are sent to make sure that the opposite party knows and is informed about the
hearing and presents himself, thereby explaining the circumstances per his knowledge and
information.
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When an individual receives a summon, it becomes obligatory on his part to show before the
court, if the person doesn’t appear at the stipulated time and place, then it’ll be Contempt of
Court and such person shall be punished.
Contents of Summon
 Summons shall always be in writing
 It shall be in a copy
 It shall be signed by the presiding officer of the court
 It shall also bear the seal of the court
 Full name and description of the person summoned.
 The name of the authority by which summoned proposed to be served.
 Time, place and date.

Summons To Defendant - Order 5 of Code and Section 27 to 29 of Civil Procedure 1908

When any party (Plaintiff) filed a suit against another party i.e. Defendant. The Defendant has
to be informed that the suit is filed against him and it is necessary to appear before court of
justice to defend himself in such situation the court send an intimation document to defendant
is said to be summons to defendant. The summons of Defendant can served for two purposes
i.e. Either for settlement of issues or for final settlement of the suit.

Summons to Witnesses Order XXVI and Section 27 to 31 of Code of Civil Procedure:

The summons shall issue by the Court to any person to give evidence as witness or produce
document which is in his possession before court on particular date such intimation document
is said to be summons of Witness. The summons of Witnesses can served for two purposes
i.e. Either for giving his oral evidence or for final production of documents.

Summons is not necessary to issue:

When the Plaintiff's claim in a suit is admitted by the Defendant before issuance of summons
then there is no need of issue of summons and court shall pronounce judgment in favor of
plaintiff (Order XII Rule 6 of CPC).

Liability of Defendant:
It is duty of defendant to appear and file his defence in pleading i.e. written statement within
30 days from the date of service of summons but the Court may be extent such period up to 90
days from such service. If defendant fails to file such written statement then the court has
empowered with pronounce judgment against such defendant, subject to its discretion to call
for proof of fact pleaded by the plaintiff (Order VIII Rule 1 of CPC)
The Defendant after receiving of summons he may appear either personally or through his
pleader or through any other pleader accompanied by any person authorized to answer on
behalf of the defendant.

But it shall not be necessary to appear personally to defendant if he fall under the benefit of
exemption as follows If:
1. Defendant is woman who is not appearing in public according to custom and manner of the
country.
2. Defendant is any one holding official character such as The President of India, The Vice
President of India, Speaker of parliament or State Legislative Assembly, The Judges of High
Court or Supreme Court, Minister of Union or States etc.
3. The Defendant resides not residing in local limits of jurisdiction of the court
4. The Defendant residing outside such local limits beyond 50 miles or 200 miles (if any
conveyance is available) from such court.
5. The defendant is appear before court in representative character then other defendants
may be exempted.( Order.1 Rule. 8)

Modes of Service of Summons

The modes of serving summons are defined in CPC and CrPC for civil cases and criminal cases
respectively. The Civil Procedure Code, 1908 provides for the following modes of service of
summons:
1. Service by Court
Order V, rule 9 states that where the defendant or his agent empowered to accept the service
resides within the jurisdiction of the Court in which suit is instituted, the summons shall be
delivered or be sent to the proper officer to be served or sent to a Court-approved courier
service. Sub-rule (3) of this rule states that such a service may be made by delivering or
 25

transmitting a copy by registered post acknowledgement due to either the defendant or such
agent by speed post or a Court approved courier service.
Sub-rule (5) states that return of acknowledgement or receipt signed by the defendant or his
agent, or the return of postal article containing summons along with the endorsement by the
relevant postal officer/employee of refusal to take delivery shall be declared by the court as
due service.
2. Service by Plaintiff
As per the provisions of Order V, Rule 9A, in addition to the service of summons under rule 9,
the Court may, on an application by the plaintiff, permit such plaintiff to affect the service of
summons upon the defendant.
If such service is refused, or if the person served refuses to sign the acknowledgement of
service or for any reasons the summons were not served personally, then, the Court shall
reissue such summons on an application of the party.

3. Service on Agents
Order V, Rule 13 states that when a suit regarding business or work is filed against a person
who does not reside within the jurisdiction of the Court issuing summons, then the summons
being served on any manager or agent personally carrying out such business or work shall be
considered god service.
Order V, Rule 14 states that when in a suit to obtain relief with respect to immovable property
service cannot be made on the defendant or his agent empowered to accept such service then
the service must be made on any agent of the defendant who is in charge of the property.

4. Service on Adult Member of Family

According to the provisions of Order V Rule 15, where the defendant is absent from his
residence at the time of service of the summons and there is no likelihood of him being found
within a reasonable period of time and he has no agent empowered to accept service on his
behalf, the service may be made to any adult member of the family residing with him.

5. Service When Defendant Refuses to Accept Service

Rule 17 of Order V provides for the procedure when the defendant refuses to accept service or
cannot be found after due and reasonable diligence. In such a case, the serving officer must
affix a copy of the summons on the outer door or some other conspicuous part of the house in
which the defendant ordinarily resides or carries on business or personally works for gain.
The serving officer shall thereafter return the original summons to the Court that issued it
along with his report stating that he affixed the copy, the circumstances under which he did so,
and the name and address of the person who identified the house and in whose presence the
copy was affixed.

6. Substituted Service
The provisions of Order V, Rule 20 provide for substituted service. Such a mode of service can
be adopted by the Court when it is satisfied that the defendant is keeping away for the
purposes of avoiding service or for any other reason the service cannot be made in an ordinary
manner. This legal position was reiterated in Dhal Singh Kushal Singh v Anandrao Kakde.
As per this rule, the Court shall order that a copy of the summons be affixed on some
conspicuous place in the Courthouse and also on some conspicuous part of the house in which
the defendant is known to have last resided or carried on business or personally works for
gain.
The court can also order service by advertising in a daily newspaper that is circulated in the
locality in which the defendant is known to have last resided, or carried on business or
personally works for gain.

In Chandergupt Arora v Smt Shaheen Khan & Others, the Court was of the view that service
through publication is an extraordinary step. Before adopting such a mode, the Court must be
satisfied that either the defendant is purposefully avoiding the receipt of summons or it is not
possible to serve the summons in an ordinary manner. The court also observed that in these
days of mechanical life, the premises were locked at a certain point of time cannot be the sole
ground for permitting substituted service.

7. Service When Defendant Resides Within Jurisdiction of another Court

When the summons is to be served upon a defendant residing in the jurisdiction of another
Court, then, as per Rule 21 of Order V, the Court issuing the summons may send it to the other
Court through one of its officers or by post, or by Court-approved courier service or by fax
message or email.
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8. Service on Defendant in Prison

Rule 24 of Order V of CPC states that when a defendant is confined in a prison, then, the
summons may be sent or delivered to the officer in charge of the prison by post, courier, fax
message, email or any other means as provided under the rules made by the High Court.
9. Service of Summons Abroad
As per Rule 25 of Order V, when the defendant resides out of India and has no agent in India
empowered to accept service, then, the summons shall be sent to the defendant at the place
where he is residing and send the same to him by post, courier service, fax message, or email.

In some special cases summons be served following places: -

If Defendant Service Of Summons

1. Resides Outside Jurisdiction of Court or - Serve through the court where he resides
state
2. Resides in foreign Country - Serve through Electronic mail ,fax or courier
3. Resides in Presidency town of Mumbai, - Serve through Small Causes Court situated
Kolkata or Chennai therein
- Serve through Head of department where he
4. Is public servant
is working as public servant
5. Is Soldier, sailor or airman - Serve through his commanding officer
6. Is Corporation - Serve through Manager, secretary ,director
- Serve through Firm, one or more partners
7. Is Partnership Firm
having control over it
8. Is in prison - Serve through officer incharge of jail authority

Objection to Service of summons:

Any objection as to service of summons shall be raised by the party at earliest opportunity
otherwise it deemed to be waived by the party.

Jaffer ss (ex-army),
Student of Sri prasunna law college, Kurnool,
3years llb. (2019-2022)