Civil Procedure Code disposal of the case, we should not Important Amendments of Act of

enthrone a regulatory requirement 2002 Act No. 22 of 2002 has been

North lakhimpur law college into a dominant desideratum. After passed for amendments of Code of
Q. 1 What do you understand by all, courts are to do justice, not to Civil Procedure so as to expedite the
Civil Procedure Code ? Give brief wreck this end product on disposal of suits and to avoid time
history of Code of Civil Procedure technicalities." consuming complicated procedural
and briefly discuss some of the formalities. Some of the important
important changes made by History of Code Before 1859 there amendments are :-
Amendment Act No. 22 of 2001 in was no uniform Code of Civil (i) Section 100-A has been added
Civil Procedure Code. Procedure. There were different which provides that notwithstanding
Ans. Laws can be divided into (i) systems of Civil Procedure in anything contained in any Letters
Substantive law or (ii) Adjective or different parts of the country. First Patents for any High Court or in any
Procedural Law. Substantive law Uniform Code of Civil Procedure was instrument having force of law or
provides for Rights and Liabilities of enacted in year 1959. But that code any other law, where any appeal
the parties whereas Adjective or was not made applicable to from a original or appellate decree
Procedure law prescribes the Supreme Court in the Presidency or order is heard and decided by
practice, procedure for enforcement Towns and to Presidency Small single Judge of a High Court no
of those rights and liabilities. Indian Cause Courts. Some amendments further appeal shall lie from
Contract Act, Transfer of Property were made therein and the code judgment and decree of such single
Act, Industrial Dispute Act are was applied to whole of British India, judge.
examples of Substantive law while but there were many defects in it
Indian Evidence Act, Indian and therefore a new code was (ii) Section 102 has been amended
Limitation Act or Code of Civil enacted in 1877. Latter Law and which has permitted the filing of
Procedure are instances of Commission in its various reports second appeal if subject matter of
procedural law. Main object of any made many recommendations for suit for recovery of money is not
procedural law is to facilitate the fair trial in due compliance of exceeding Rs. 2,500/-.
court in enforcing the rights and acceptance of principles of natural
liabilities of parties, in due justice and for expediting the (iii) Amendment made in Order VII
compliance of natural principles and disposal of suits and also avoiding and it is made obligatory for
established procedure. undue complicated procedure in defendant to present his written
Aim of Civil Procedure Code The aim disposal of suit. Keeping in view the statement within 30 days from date
of the procedural laws is to above said broad principles, in the of service of summons to him. If he
implement the substantive laws year 1908, present Code of Civil fails to do so, court may, for reasons
effectively and, therefore, Civil Procedure was enacted. Then in year to be recorded, allow him to present
Procedure Code has been enacted 1976, some important amendments written statement on any other date
with the object to provide fair justice were made in the code which are but not later than 90 days from date
without any delay. The ultimate aim following :- of service of summons.
of the Code is to provide simple and (a) The doctrine of "res-judicata"
expeditious procedure for doing was made more effective. (iv) Amendment in Order V of Code
justice between the parties. It has is made and provisions of service of
been framed to provide uniform (b) The powers to transfer summon through duly approved
procedure so as to avoid diversity in proceedings from one High Court to courier service or by fax message or
the manner of dealing with cases another was given to Supreme electronic mail, are made.
before the courts. Court.
Therefore, provisions of Code of Civil (v) Amendment is made in Order VI
Procedure must be interpreted (c) Freedom from attachment of Rule 17 and now no application for
liberally so as to subserve and portion of salary to all salaried amendment of pleadings shall be
advance the cause of justice. In State employees is granted. allowed after the trial has
of Punjab v. Shamlal Murari, AIR commenced unless court has came
1976 SC 1177 Krishna Iyer J. has (d) The provision of giving notice to conclusion that inspite of due
observed - under section 80 before institution diligence, party could not have
"We must always remember that of suit against the Government or a raised the matter before the
procedural law is not to be a tyrant Public Officer was made less commencement of trial.
but a servant, not an obstruction but stringent.
an aid to justice. It has been wisely (vi) Amendment is made in Order
observed that procedural (e) The scope of Summary Trials was XVIII and provision has been made in
prescriptions are the handmaid and widened. Rule 4 for recording the examination
not the mistress, a lubricant, not a in chief of witnesses in a suit by
resistant in the administration of (f) Important changes were made to affidavit, copies of which will be
justice. Where the non-compliance, provide relief to poor section of the supplied to opposite party.
though procedural, will thwart fair community.
hearing or prejudice doing can be Q. 2 Distinguish between Decree
corrected without injury to a just and Order.
Ans. DECREE [Section 2(2)] Decree (1) Suit for possession and mesne (a) Decree can only be passed in a
means formal expression of an profit (O. 20 R. 12) suit which commenced by
adjudication which so far as regards presentation of plaint. An Order can
the court expressing it, conclusively (2) Administration Suit (O. 20 R. 13) be passed in suit by presentation of
determines the rights of parties with plaint or may arise from proceeding
regard to all or any of the matter in (3) Suit for Pre-emption (O. 20 R. 14) commenced from application.
controversy in suit and may be
either preliminary or final. It shall be (4) Suit for Dissolution of (b) Decree is an adjudication
deemed to include the rejection of Partnership Firm (O. 20 R. 15) conclusively determining the rights
plaint and determination of any of parties with regard to all or any of
question within the Section 144 but (5) Suit for Accounts between the matter in controversy. Order on
shall not include :- Principal and Agent (O. 20 R. 16) the other hand, may or may not
(a) any adjudication from which an finally determine such rights.
appeal lies as an appeal from an (6) Suit for Partition and Separate
Order. Possession (O. 20 R.18) (c) Decree may be preliminary or
final, but there cannot be
(b) an order of dismissal for default (7) Suit for foreclosure of Mortgage preliminary order.
(O. 34 R. 2-3)
Explanation : Decree is preliminary (d) Except in certain suits in which
when further proceeding have to be (8) Suit for Sale of Mortgaged two decrees i.e. one preliminary and
taken before the suit can be Property (O. 34 R. 4-5) one final is passed, there can be only
completely disposed of. It is final one decree, but in suit or
when such adjudication completely (9) Suit for Redemption of Mortgage proceedings there can be number of
disposes of the suit. It may be partly (O. 34 R. 7-8) orders.
preliminary and partly
ESSENTIAL ELEMENTS Question whether decision amounts (d) Every decree is appealable unless
(i) There must be adjudication. to preliminary decree or not is a otherwise expressly provided but
great significance in view of Section every order is not appealable only
(ii) Such adjudication must have 97 CPC which provides:- those orders are appealable as
been given in a suit. "Where any party aggrieved by specified in code.
Preliminary decree does not appeal
(iii) It must have determined the from such decree he shall be Q. 3. What is the effect of reversal
rights of parties with regard to all or precluded from disputing its of the Preliminary decree on the
any of the matters in controversy in correctness in any appeal which may final decree passed by the lower
suit. be preferred from final decree." court during the pendency of
appeal against final decree.
(iv) Such determination must be of FINAL DECREE A decree may be said Ans. "The effect of the reversal of
conclusive nature. to final in two ways:- the preliminary decree on the final
(i) When within prescribed period no decree passed by the lower Court
(v) There must be a formal appeal is filed against the decree or during the pendency of the appeal
expression of such adjudication. the matter has been decided by against the preliminary decree is
decree of the highest court. that the final decree is superseded
CLASSES OF DECREE because the final decree is its nature
Primarily there are two kinds of (ii) When the decree, so far as dependent and subordinate, as it is a
Decree : regards the court passing it decree which has been passed as a
(i) Preliminary Decree completely disposes of the suit. result of proceeding directed and
controlled by the preliminary decree
(ii) Final Decree Normally "Final Decree" is construed and based thereon. Therefore, when
which so far as the court passing it, a preliminary decree is set aside, the
PRELIMINARY DECREE : finally dispose of the controversy final decree is automatically
Where an adjudication decides the involved and the suit. superseded, whether the appeal was
rights of the parties with regard to ORDER [Section 2(14)]Order means brought before or after the passing
all or any of matter in controversy in the formal expression of any of the final decree."
suit but does not completely dispose decision of civil court which is not a In Sital Parshad v. Kishori Lal, AIR
of the suit. It is a preliminary decree. decree (Section 2(14)). Thus the 1967 SC 1236 it was observed by
Explanation added to Section 2(2) adjudication of a court which is not a Supreme Court that since the
also says "Decree is preliminary decree is an Order. passing of preliminary decree is only
when further proceedings have to DECREE and ORDER : DISTINCTION a stage prior to the passing of final
be take before the suit can be The adjudication of court of law may decree, if an appeal against a
completely disposed of". CPC either be decree or Order : preliminary decree succeeds, the
provides for passing preliminary Fundamental distinction between final decree automatically falls to
decree in following cases: two are:- the ground for there is no
preliminary decree thereafter in (D) An order that suit abates is a In Fateh Chand v. Bal Kishan Das, AIR
support of it. decree. 1963 SC 1405 it was observed that
Q. 4. Are the following orders mesne profits being in the nature of
amount to "decree" within the Q. 5 Can an appeal against final damages, no invariable rule
meaning of Section 2(2) of Code : decree correctness of the governing their award and
(A) An order rejecting a preliminary decree be questioned, assessment in every case can be laid
memorandum of appeal when no appeal has been preferred down and court may mould it
insufficiently stamped; by aggrieved party against the according to justice of the case.
preliminary decree ? However following principles would
(B) Memorandum of appeal which is Ans. Section 97 of Code of Civil ordinarily guide a court for
dismissed as time barred; Procedure Code, give answer to this, determining the amount of mesne
which provides that - profits :-
(C) An order returning a "Whether any party aggrieved by a (i) no profit by a person in wrongful
memorandum of appeal for preliminary decree ......... does not possession;
amendment; appeal from such decree, he shall be
precluded from disputing it's (ii) restoration of status before
(D) An order that a suit abates. correctness in any appeal which may dispossession of decree holder; &
be preferred from the final decree."
Ans. Section 2(2) of Code defines the (iii) use to which the decree-holder
term "Decree" as : So in view of Section 97, in an appeal would have put the property if he
"Decree means the formal against final decree, correctness of himself was in possession.
expression of an adjudication which preliminary decree cannot be
so far as regards the court challenged in the absence of any (B) Foreign Judgment - Section 2(5)
expressing it, conclusively appeal against preliminary decree by of Code has defined "Foreign Court"
determines the right of the parties aggrieved party." as a court situated outside India and
with regard to all or any of the Q. 6 Define and writ short notes on not established or continued by the
matters in controversy in the suit : authority of the Central
and may be either preliminary or (A) Mesne Profits Government. Similarly section 2(6)
final. It shall be deemed to include (B) Foreign Judgment say "Foreign Judgement" means a
the rejection of plaint and (C) Judgement Debtor judgment of a foreign Court.
termination of any question within (D) Decree holder In Shitole v. Sanker Saran, AIR 1962
section 144, but shall not include - (E) Exparte decree SC 1737. It was observed that crucial
(F) Legal Representation date to determine whether the
(a) Any adjudication from which an judgment is of a foreign court or not
appeal lies as an appeal from an Ans. (A) Mesne Profits - Section is the date of the judgment and not
order, or 2(12) of Code says "Mesne Profits" the date when it is sought to be
of property means those profits enforced or executed, so a judgment
(b) any order of dismissal for which the person in wrongful of a foreign court at the time of its
default." possession of such property actually pronouncement would not cease to
received or might with ordinary be foreign judgment by reason of
Keeping in view the above definition diligence have received therefrom, the fact that subsequently the
let us assess whether following are together with interest on such foreign territory has become part of
decree or not profits, but shall not include profits the Union of India.
(A) An order rejecting a due to improvements made by the (C) Judgment-debtor. - Section 2(10)
memorandum of appeal as person in wrongful possession. of Code of Civil Procedure says -
insufficiently stamped is not decree "The right to possession is a sacred `Judgment-debtor' means any
because said order is not appealable right guaranteed to all law-abiding person against whom a decree has
and fresh memorandum of appeal citizens. When a person is deprived been passed, or an order capable of
with requisite stamp may be filled. of his possession he is not only execution has been made. Where
entitled to recover possession but the decree is passed against a
(B) Dismissal of appeal being barred also damages for wrongful surety, he is a judgment-debtor
by limitation is decree as the court possession by another. The mesne within the meaning of this section.
dismissing it, even on the ground of profits are a compensation, which is On the other hand, a person who is
limitation is finally disposing of the penal in nature. The object of a party to the suit, but no decree has
matter. Such order is appealable as awarding a decree for mesne profits been passed against him, is not a
decree. is to compensate the person who "judgment-debtor."
has been kept out of possession and
(C) Order returning memorandum of deprived of enjoyment of his (D) Decree holder. - Then Section
appeal for amendment is not decree property. Thus, `wrongful' 2(3) of Code defines "Decree-
because such order does not finally possession of the defendant is the holder" as -
dispose off the matters so far as the essence of a claim for mense `Decree-holder' means any person in
court passing such order. profits." whose favour a decree has been
passed or an order capable of
execution has been made. From this presented in a formal way for its example, a small cause court can try
definition, it is clear that the decree- decision. only certain suits, such as money
holder need not necessarily be the There is always a distinction suit, based on an oral loan or a bond
plaintiff. A person who is not a party between want of jurisdiction and or promissory note, a suit for price
to the suit but in whose favour an irregular exercise of it. The defect of of work done, a suit for recovery of
order capable of execution has been jurisdiction goes to root of the price of goods supplied, but it has no
passed is also a decree-holder. matters. Such a basic and jurisdiction to try the suits for
fundamental defect cannot be cured specific performance of contracts,
(E) Exparte Decree. - Order 9 Rule 6 by consent of parties. In short, a for injunction, for a dissolution of
of the Civil Procedure Code provides decree passed by a court without partnership, or suit for partition of
that where the plaintiff appears and jurisdiction is a "Coram non judice". immovable property. Similarly, only
the defendant does not appear In Kiran Singh v. Chaman Paswan, District Judge has the jurisdiction in
when the suit is called on for AIR 1951 SC 340 it was observed - respect of testamentary matters,
hearing, then if it is proved that the "It is a fundamental principle well such as granting probate or letter of
summons was duly served the Court established that a decree passed by administration, and divorce cases.
may make an order that the suit be a court without jurisdiction is a
heard exparte. `Exparte' means, in nullity and that its invalidity could be (iv) Original or Appellate Jurisdiction
the absence of the other party. set up whenever and wherever it is - The jurisdiction of a Court may be
Exparte decree can be passed only sought to be enforced or relied original or appellate. For example,
after the date of the first hearing upon, even at the stage of execution the jurisdiction of the court of
fixed in the summons, and not and even in collateral proceedings. A munsif and small cause court is only
before that. The order to proceed defect of jurisdiction...strikes at the original, while the court of Civil
exparte can also be passed if the very authority of the court to pass Judge, District Judge, and High Court
defendant, after putting his any decree, and such a defect also exercise appellate jurisdiction.
appearance after service of cannot be cured even by consent of In the exercise of its original
summons, remains absent on the parties." jurisdiction, a court entertains
date of hearing subsequent fixed. original suits, while in the exercise of
Even if the court proceeds exparte, it Kinds of Jurisdiction; Jurisdiction of a its appellate jurisdiction it entertains
has to act according to law, and the court may be classified into the appeals.
plaintiff must prove his case. following categories :-
(F) Legal Representative. - The term, (i) Territorial or local jurisdiction - Q. 8 Discuss with the help of
`legal representative' has been Every court has its own local or decided cases that every kind of
defined in section 2(11) of the Civil territorial limits beyond which it dispute is not entertainable by civil
Procedure Code. According to it, cannot exercise its jurisdiction. court.
`legal representative' means a These limits are fixed by the Or
person who in law represents the Government. The District Judge has What is a suit of civil nature ? Give
estate of a deceased person, and to exercise jurisdiction within his few examples.
includes any person who district and not outside it. The High Ans. Section 9 of Civil Procedure
intermeddles with the estate of the Court has jurisdiction over the Code confers the power upon the
deceased and where a party sues or territory of the State within which it civil court jurisdiction to try suit of
is sued in a representative character, is situate and not beyond it. Again, a civil nature. Section 9 provides :
the person on whom the estate court has no jurisdiction to try a suit "The courts shall (subject to the
devolves on the death of the party for immovable property situated provisions herein contained) have
so suing or sued. beyond its local limits. jurisdiction to try all suits of a civil
The above definition is not nature excepting suits of which their
exhaustive, but illustrative. In order (ii) Pecuniary jurisdiction - Section 6 cognizance is either expressly or
to be a legal representative under of Code provides that a court will impliedly barred."
section 2(11), it is not necessary that have jurisdiction only over those SUIT OF CIVIL NATURE The word
a person should be a legal heir of a suits, the amount or value of the "civil" has not been defined in the
deceased person or that he should subject-matter of which does not Code. But according to the
have a beneficial interest in the exceed the pecuniary limits of its dictionary meaning, it pertains to
estate. jurisdiction. Some courts have private rights and remedies of a
Q. 7 What do you understand by unlimited pecuniary jurisdiction, e.g. citizen as distinguished from
the term "Jurisdiction of a Court"? High Courts and District Courts have criminal, political, etc. Thus, a suit is
Ans. Term jurisdiction may be no pecuniary limitations. But there of civil nature if the principal
defined to be the power or authority are other courts having jurisdiction question therein relates to the
of a court to hear and determine a to try suits up to a particular amount determination of a civil right and
cause, to adjudicate and exercise of subject matter. enforcement thereof. It is not the
any judicial power in relation to it. status of the parties to the suit, but
So jurisdiction is meant the authority (iii) Jurisdiction over the subject- the subject-matter of it which
which a court has, to decide matters matter - Different types of courts determines whether or not the suit
that are litigated before it or the have been allotted different type of is one of a civil nature. The
take cognizance of matters work by different statutes. For expression "suit of civil nature" will
cover private rights and obligations was held that the civil court has (D) Proceedings for dissolution of
of a citizen. Political and religious jurisdiction to entertain it (Ratan Muslim marriage.
questions are not covered by that Singh v. Bali Ram, AIR 1952 Punjab (E) Claim by Swami to be carried
expression. A suit in which principal 163). out in palanquin on high road of
question relates to caste or religion The right to take out a procession Town on a occasion.
is not a suit of a civil nature. But if through the public streets is a civil (F) Suit relating to costs property.
the principal question in the suit is right, and a suit will lie to enforce Ans. The Courts shall (subject to the
of a civil nature (the right to such a right in a civil court provisions herein contained) have
property or to an office) and the (Sanganbasaswami Guru v. Baburao jurisdiction to try all suits of a civil
adjudication incidentally involves Ganesh Kulkarni, ILR (1946) Bom. nature excepting suits of which their
the determination relating to a caste 437). cognizance is either expressly or
question or to religious rights and The right to officiate as a priest or as impliedly barred.
ceremonies, it does not cease to be a guru simpliciter is not a civil right Explanation I. - A suit in which the
a suit of a civil nature and the and no suit lies to enforce the same. right to property or to an office is
jurisdiction of a civil court is not But where it amounts to an office contested is a suit of a civil nature,
barred. (Explanation 1 to Section 9). attached to an institution such as a notwithstanding that such right may
Explanation II, added by the temple, it has been recognised as a depend entirely on the decision of
Amendment Act, 1976, further civil right. The fact that there are question as to religious rites or
provides that it is immaterial emoluments of a non-gratuitous ceremonies.
whether or not any fees are character payable out of the funds Explanation II. - For the purpose of
attached to the office referred to in of the institution is relevant, though this section, it is immaterial whether
Explanation I or whether or not such the absence thereof is not decisive. or not any fees are attached to the
office is attached to a particular There may be offices without office referred to in Explanation I or
place. Thus in order to fall within the emoluments at all. The crucial test in whether or not such office is
purview of the term 'of civil nature ' determining whether a claim to attached to a particular place.
the suit must be for the purohitship or priesthood of a So in view of Section 9 of Code :-
enforcement of private rights and temple is a claim to an office or not (A) Suit for dismissal from post of
obligations of a citizen and not of is whether there are duties attached honourary secretary of an
matters which are purely social. to purohitship which are association is not suit of civil nature
In view of Section 9 of the Code of enforceable by law, custom or within the meaning of Section 9.
Civil Procedure, the enquiry of the usage, whether by deprivation or
court should be confined to the other temporal sanction (Chunnu (B) Suit for exclusion of a member
dispute of a civil nature. Any dispute Dutt Vyas v. Babu Nandan, AIR 32 All from a caste is a one cognizable by
which is not of a civil nature should 527). civil court because exclusion of some
be excluded from consideration. The COGNIZANCE NOT BARRED one from his caste, affects his legal
dispute as to right of worship is one Section 9 C.P.C. provides that Civil right.
of a civil nature within the meaning Court has jurisdiction to entertain
of Section 9 of the Code and a suit is suit of civil nature unless its (C) Suit to set aside the election of
maintainable for the vindication or cognizance is barred either expressly director's is suit of civil nature
determination of such a right or impliedly. because in such suit, legal right of
(District Council of United Basel Cognizance Expressly Barred some one for being appointed as
Mission Church and others v. A suit is said to be expressly barred "Directors' is challenged.
Salavador Nicholas Mathlas and when it is barred by any statute for
others, (1988) 2 SCC 31). the time being in force. (D) Proceeding for dissolution of
The right to remain in the Cognizance Impliedly Barred Muslim marriage is purely a suit of
community or to exercise the rights A suit is said to be impliedly barred civil nature.
and privileges of the members of the when it is barred by general
community is a civil one (Mansoor principles of Law. For Example (E) Claim of any Swami to be carried
Ali v. Taiyabali Mohammad Ali where a specific remedy is given by a out in palanquin is not a suit of civil
Dawoodi Bohra, 157 IC 302). Statute, it thereby deprive the nature, because, it does not involve
A suit to establish a person's right to person who insists upon a remedy in any legal right of Swami but claim is
enter a religious place and a suit to any other form than that given by mark of honour.
restrain the defendant from entering the Statute.
a place of worship are both Q. 9 Whether following suits are (F) Suit for inspection of accounts of
entertainable, being suits of a civil cognizable by civil court :- caste property is a civil nature, as
nature. It is a civil right of every (A) Suit for dismissal from post of every member of cast is entitled to
citizen that he should be entitled to honorary secretary of an inspect account books at all
carry on his worship in any method association. reasonable times on demand.
he likes so long as he does not, by (B) Suit for exclusion of a member
his performances, affect others from cast. Q. 10 Does the Code of Civil
injuriously. Where the plaintiffs (C) Suit to set aside the election of Procedure make any provision
claimed to be entitled to enter the directors. preventing courts of concurrent
temple bareheaded and worship, it jurisdiction from trying at the same
time two parallel suits in respect of Government or before the Supreme heirs for eviction of the tenant from
same cause of action ? If so what ? Court. those premises and the plaintiff in
Discuss. the first suit also being heirs was
Ans. Section 10 of the Code deals (5) The court in which the previous impleaded as pro forma defendant,
with the stay of civil suits. It reads: suit is instituted must have the controversy in the two suits
"No Court shall proceed with the jurisdiction to grant the relief cannot be said to be the same as the
trial of any suit in which the matter claimed in the subsequent suit. controversy in the first suit relates to
in issue is also directly and the share of the parties in the
substantially in issue in a previously (6) Such parties must be litigating premises and the subsequent suit
instituted suit between the same under the same title in both the for eviction has nothing to do with
parties, or between parties under suits. the same. Therefore the subsequent
whom they or any of them claim eviction suit need not be stayed
litigating under the same title where Q. 11 A suit for partition of under Section 10 C.P.C.
such suit is pending in the same or premises has filled by one of the Q. 12 B residing in Calcutta has an
any other court in India having heirs. Subsequently another suit for agent at Calicut employed to sell his
jurisdiction to grant the relief eviction of tenant from there goods there. A sues B in Calicut
claimed, or in any court beyond the premises was filled by another heir claiming a balance due upon an
limits of India established or ? Can the subsequent suit be stayed account in respect of dealing
constituted by the Central in view of Section 10 of C.P.C. between him and B. During the
Government and having like Ans. Section 10 of Civil Procedure pendency of the suit in Calicut
jurisdiction, or before the Supreme Code deals with doctrine of "Sub Court competent to grant relief B
Court." judice' Section 10 says - institute a suit against A in Calcutta
"No Court shall proceed with the for an account and damages caused
The object of the Rule contained in trial of any suit in which the matter by A's alleged negligence. Can the
Section 10 is to prevent the courts of in issue is also directly the Calcutta Court proceed with trial of
concurrent jurisdiction from substantially in issue in a previously B's suit?
simultaneously entertaining and instituted suit between the same Ans. Rule of "Res Sub Judice" as
adjudicating upon two parallel parties, or between parties under embodied in Section 10 of C.P.C.
litigations in respect of the same whom they or any of them claim says "no court shall proceed with
cause of action, the same subject- litigating under the same title where trial of any suit in which the matter
matter and the same relief. The such suit is pending in the same or in issue is also directly and
policy of the law is to confine the any other Court in India having substantially in issue in previously
plaintiff to one litigation, thus jurisdiction to grant the relief instituted case between same
obviating the possibility of two claimed, or in any Court beyond the parties or parties under whom they
contradictory verdicts by one and limits of India established or or any of them claim, litigating under
the same court in respect of the continued by the central same title, pending in the same
same relief. Government and having like court or any other court competent
In Shetty v. Giridhar, AIR 1982 SC 83 jurisdiction, or before the Supreme to grant relief claimed or any court
it was held : Court." beyond limits of India established or
For the application of this Section , constituted by Central Govt. or
the following conditions must be So what is important to invock before Supreme Court.
satisfied :- Section 10 is that subsequently filled So when a suit between same
suit should be for same cause of parties is already pending in a
(1) There must be two suits, one action and between same parties competent court and question
previously instituted and the other and matter in issue in previous and involved therein, is again directly
subsequently instituted. subsequent suits must be directly and substantially raised in other suit
and substantially the same. Where instituted subsequently, then such
(2) The matter in issue in the the cause of action and reliefs are subsequent suit will not be allowed
subsequent suit must be directly and different, it cannot be said that the to proceed in view of provision of
substantially in issue in the previous matter in issue between the two Section 10 C.P.C.
suit. suits is directly and substantially the In case in hand when matter
same. Identity of one or two issues is between A and B is already pending
(3) Both the suits must be between not enough. What has to be seen is in Calicut Court which is competent
the same parties or their whether the filed of controversy is court then alike matter in suit
representatives. the same and whether the final subsequently filed by B at Calcutta
decision in the previous suit is such shall not be proceed.
(4) The previously instituted suit as would operate as res judicata in Q. 13 What is the scope and object
must be pending in the same court the subsequent suit. Where one of of doctrine of res judicata ? Discuss
in which the subsequent suit is the heirs to the premises filed a suit the conditions necessary for its
brought or in any other court in for declaration of his share and of application in legal proceedings.
India or in any court beyond the the other heirs impleaded as Ans. Section 11 of Civil Procedure
limits of India established or defendants and for partition and the Code embodies the doctrine of res
continued by the Central subsequent suit was filed by another judicata which is based on the need
of giving finality to judicial decisions. substantially in issue either actually issue may be so either actually or
It is a Rule of conclusiveness of or constructively in the former suit. constructively. A matter is actually in
judgment as to the points decided issue when it is alleged by one party
either of facts or of law or fact and (b) The former suit must have been and denied or admitted by the other
law, in every subsequent suit a suit between the same parties or (Explanation III). It is constructively
between the same parties. It simply between parties under whom they in issue when it might and ought to
enacts that once a matter is finally or any of them claim. have been made a ground of attack
decided by a competent court, no or defence in the former suit.
party can be permitted to reopen it (c) Such parties must have been Explanation IV to Section 11 by a
in subsequent litigation. The litigating under the same title in the deeming provision lays down that
doctrine of res judicata is based on former suit. any matter which might and ought
three maxims:- to have been made a ground of
(1) nemo debt lis vexari pro uno et (d) The court which decided the defence or attack in the former suit,
eaden causa former suit must be a court but which has not been made a
competent to try the subsequent ground of attack or defence, shall be
: No man should be vexed twice for suit or the suit in which such issue is deemed to have been a matter
same cause. subsequently raised (Explanations II directly and substantially in issue in
(2) intrest republica ut sit finis litium and VII are to be read with this such suit.
: It is in the interest of the state that condition). In State of U.P. v. Nawab Hussain,
there should be an end to a A.I.R. 1977 SC 1681 A, a sub-
litigation. (d) The matter directly and inspector of police, was dismissed
(3) Res Judicata pro veritate substantially in issue in the from service by D.I.G. He challenged
occipiture subsequent suit must have been the order of dismissal by filing a writ
: a judicial decision must be heard and finally decided by the petition in the High Court on the
accepted as correct. court in former suit. ground that he was not afforded
reasonable opportunity of being
Section 11 C.P.C. provide as under :- Q. 14 (a) Discuss the doctrine of heard before passing the Order. The
"No court shall try any suit or issue constructive res judicata. contention was, however, negatived
in which the matter directly and (b) A sues B to recover certain and the petition was dismissed. He
substantially in issue has been property belonging to the estate of then filed a suit and raised an
directly and substantially in issue in C, alleging that his (A's) father had additional ground that since he was
a former suit between the same been adopted by C's brother D, to appointed by I.G.P., D.I.G. had no
parties or between parties under whom the property descended on power to dismiss him. The State
whom they or any of them claim, C's death. The suit is dismissed on contended that the suit was barred
litigating under the same title, in a the ground that the adoption is not by constructive res judicata. The trial
court competent to try such proved. A then sues B to recover court, the first appellate court as
subsequent suit or the suit in which the same property claiming it as C's well as the High Court held that the
such issue has been subsequently Bandhu. Is the suit barred as res suit was not barred by res judicata.
raised and has been heard and judicata ? Allowing the appeal filed by the
finally decided by such court". (c) A, alleging that he is the adopted State, the Supreme Court held that
son of X sues B to recover certain the suit was barred by constructive
In Daryao v. State of U.P., AIR 1961 property granted to him by X under res judicata as the plea was within
SC 1457 Supreme Court observed :- a deed and forming part of the the knowledge of the plaintiff and
The binding character of judgment estate of X. The court finds that A is could well have been taken in earlier
pronounced by court of competent not the adopted son of X, but that writ petition. It was observed by
jurisdiction is itself an essential part he is entitled to the property under Supreme Court :-
of rule of law and rule of law the deed and a decree is passed in "When any matter which might and
obviously is the basis of favour of A. Will the finding that A ought to have been made a ground
administration of justice on which is not the adopted son of X operate of defence or attack in a former
the Constitution lays so much as res judicata in a subsequent suit proceeding but was not so made,
emphasis." between A and B in which the then such a matter in the eye of law,
In Sheodan Singh v. Daryao Kunwar question of adoption is again put in to avoid multiplicity of litigation and
AIR 1966 SC 1332 it was held that "It issue ? to bring about finality in it, is
is not every matter decided in a Ans. (a) Rule of res judicata as deemed to have been constructively
former suit that will operate as `res contemplated by Section 11 applies in issue and, therefore, is taken as
judicata' in a subsequent suit. To only when a matter directly and decided."
constitute a matter res judicata substantially in issue in a suit has
under section 11 the following also been directly and substantially Ans. (b) Rule of Constructive Res
conditions must be satisfied :- in issue in a former suit between Judicata as embodied in Explanation
(a) The matter directly and same parties and such matter has IV to Section 11 C.P.C. is an artificial
substantially in issue in the been heard and finally decided in form of Res Judicata and provides
subsequent suit or issue must be the that former suit by competent court. that if a plea should have been taken
same matter which was directly and A matter directly and substantially in by a party in a proceeding between
him and his opponent, but was not decided not merely any finding on B claims abatement of rent on the
actually taken in that former suit, he any incidental question for reaching ground that the area is greater that
should not be permitted to take that such decision so if no such issue is shown in the lease. The finding as to
plea against the same party in a raised and if on any other issue if the excess area is not res judicata for
subsequent proceeding with incidentally any finding is recorded, this was not the matter directly and
reference to same subject matter. it would not come within the substantially in issue but only
Explanation IV to Section 11 C.P.C. periphery of principle of res anciallry to the direct and
provides "Any matter which might or judicata." substantial issue, viz., whether the
ought to have been made a ground area is equal to that shown in the
of defence or attack in the former Moreover, a finding on an issue lease or less.
suit, but which has not been made cannot be said to be necessary to Q. 16 Res judicata is sometimes
ground of attack or defence shall be the decision of a suit unless the treated as part of the doctrine of
deemed to have been matter decision was based upon that estoppel but the two are essentially
directly and substantially in issue in finding. In the case in hand, the different. Explain and point out the
such suit." finding that A is not the adopted son difference between the two.
Coming now to case in hand, when A of X will not operate as res judicata Ans. The doctrine of res judicata is
filed earlier suit against B, it was in a subsequent suit between A and often treated as a branch of law of
open to A to take the plea of C's B in which the question of adoption estoppel. Res judicata is really
Bandhu to recover property, but A is again put in issue, for the decree estoppel by verdict or estoppel by
did not take that plea and only made being in favour of A, A could not judgment (record). The rule of
his claim on the basis of alleged have appealed from that finding. constructive res judicata is nothing
adoption of his father by D who was The Court having found that A was else but a rule of estoppel. Even
C's brother. A's earlier suit was entitled to the property under the then, the doctrine of res judicata
dismissed and now A's second suit is deed, the finding on the question of differs in essential particulars from
barred by constructive res judicata. adoption was not necessary to the the doctrine of estoppel.
Ans. (c) One of the requirements for determination of the suit. The (1) the rule of res judicata is based
application of Rule of res judicata as decree, far from being based on the on public policy, viz. that there
embodied in Section 11 C.P.C. is that finding as to adoption, was made in should be an end to litigation.
Judgement of Court must be on a spite of it. Estoppel, on the other hand,
matter which was directly and Q. 15 Explain the significance of proceeds upon the doctrine of
substantially in issue between "the matter collaterally or equity, that he who, by his conduct,
parties. When a court of competent incidentally in issue" determining has induced another to alter his
jurisdiction hears and finally decides the principles of res judicata. position to his disadvantage, cannot
any matter which was directly and Ans. Matter collaterally or turn round and take advantage of
substantially in issue between incidentally in issue. - The expression such alteration of the other's
parties it will only operate res "collaterally or incidentally in issue" position.
judicata in any subsequent suit implies that there is another matter, (2) Res judicata ousts the jurisdiction
between same parties if that matter which is directly and substantially in of the Court to try the case and
is again directly and substantially in issue and the matter collaterally and precludes an enquiry in limine (at
issue in such subsequent suit. The incidentally is only incidental to the the threshold); estoppel is only a
words "directly and substantially in direct and substantial issue. rule of evidence and shuts the
issue" have been used in Section 11 Collateral and incidental issues are mouth of a party.
in contradiction to words the auxiliary issues, while direct and (3) Res judicata results from a
"collaterally and incidentally in substantial issues are principal decision of the Court, whereas
issue". Decisions on the matters issues. A collateral or incidental estoppel flows from the acts of
collateral and incidental to main issue is an issue in respect of which parties.
issues in the case will not operate as no relief is claimed but which is put (4) The rule of res judicata presumes
res judicata. A collateral or in issue to enable the Court to conclusively the truth of the decision
incidental issue means an issue adjudicate upon the matter which is in the former suit, while the rule of
which is ancillary to direct and directly and substantially is issue. It estoppel prevents a party from
substantive issue. is only those matters which are denying what he has once called the
Recently Supreme Court in Madhvi directly and substantially in issue truth.
Amma Bhawani Amma and others v. that constitute res judicata and not (5) Res judicata prohibits a man
Kunjikutti Pillai Meenakshi Pillai and the matters which are in issue only averring the same thing twice in
others, AIR 2000 SC 2301 observed :- collaterally or incidentally. The successive litigations, while estoppel
"In order to apply the general matter could be directly and prevents him from saying one thing
principle of res judicata court must substantially in issue if the issue was at one time and the opposite at
find whether an issue in subsequent decided and judgment was, in fact, another.
suit was directly and substantially in based upon that decision otherwise Q. 17 (a) Nine Akali Sikhs sue for
issue in earlier suit or proceeding, it would be a matter collaterally or removal of Mahant of a religious
was it between the same parties and incidentally in issue. An illustration institution. The suit is dismissed on
was it decided by such court. Thus will further elucidate the point. A the ground that the institution is
there should be an issue raised and sues B for rent for the year 1975 and Hindu Dera and not a Sikh
Gurudwara. Subsequently and after (i) there must be a right claimed by So Explanation IV to Section 11
the passing of Sikh Gurudwara Act one or more persons in common for provides for Rule of "Constructive
1925, sixty four sikhs sue for themselves and others not expressly Res Judicata" and provide if a plea
declaration that institution is Sikh named in the suit could have been taken by a party in
Gurudwara. Is the suit is barred by proceedings between him and his
Res Judicata ? (ii) Parties not expressly named in opponent, he could not be
(b) A a Hindu dies leaving widow suit must be instructed in such right. permitted to take that plea against
and brother B. The widow sues B the same party in a subsequent suit
for recovery of certain property (iii) Litigation must have been with reference to the same subject
alleging that it was a self acquired conducted bona fide and on behalf matter.
property of her husband and that a of all parties interested and In State of U.P. v. Nawab Hussain,
will alleged to have been executed AIR 1977 SC 1681 Supreme Court
by her husband and relied upon by (iv) if suit is under Order 1 Rule 8 all observed:-"When any matter which
B was a forgery. B alleges that the conditions of such provision must might and ought to have been made
property was joint family property have been strictly complied with. It a ground of defence or attack in a
and that on the death of A he is only then that decision may former proceeding but was not so
became entitled thereto by right of operate as res judicata. made then such a matter in the eye
survivorship, but he does not claim of law, to avoid multiplicity of
any title to the property under the But where a party claims right for litigation and to bring about finality
will. The court finds that the himself alone which happens to be in it is deemed to have been
property was self acquired property common to him and other, then it constructively in issue and
of A and decrees the widow's claim. cannot be said that he was litigating therefore, is taken as decided."
Subsequently B sues the widow to on behalf of other and Explanation Coming now to case in hand, when
recover same property from her VI of Section 11 C.P.C. does not widow of A filed suit against B for
now claiming the same as devisee apply." recovery of property on the ground
under A's will. Is the suit barred by In the case in hand, earlier suit was of Will allegedly executed by A and
res judicata ? filed by nine Akali Sikhs for removal on the ground that suit property was
Ans. (a) For the application of Rule of Mahant of Religious institution. A's self acquired property, B
of Res Judicata as enshrined under These Akali Sikhs were claiming in contested that suit only on the
section 11 of C.P.C., one of the suit not as Representatives for all ground that suit property was joint
conditions is that former suit must sikhs, but they were having their property and not A's self acquired
be between the same parties or individual claim in that suit. property. B in that suit could have
parties under whom they claim Therefore decision in the former suit taken the defence for which he filed
litigating under same title as in can not operate as res judicata in second suit in reference to same
subsequent suit. However subsequent suit which was filed by property and against same party i.e.
Explanation VI of Section 11 sixty four sikhs after passing of Sikh widow of A. Therefore bar of
provides `where persons litigate Gurudwara Act, 1925. constructive res judicata will apply in
bona fide in respect of public right (b) Rule of Res Judicata applies in respect of suit filed by B for recovery
or a private right claimed in common respect of only those matters which of property on the ground of A's will.
for themselves and others, all were directly and substantially in Q. 18 (a) What is prematrue
persons interested in such right issue in former suit and which were discovery ?
shall, for the purpose this section, be heard and finally decided in that suit (b) What is the penalty for non-
deemed to claim under the person by court, and are directly and compliance by a party with the
so litigating." substantially in issue in subsequent order of the court for discovery of
So Explanation VI to Section 11 deals suit, between same parties. document ?
with Representative suits i.e. suits Explanation III to Section 11 says all Ans. (a) Premature discovery. : Rule
instituted by or against a person to those matters which have been 20 - The court is empowered to
his representative as distinguished alleged by one party and either postpone a premature discovery or
from individual capacity. Thus where denied or admitted by the other inspection. A discovery is premature
a representative suit is brought (Expressly or Impliedly) are deemed when the right to discovery depends
under section 92 C.P.C. and decree is to be directly and substantially in upon the determination of any issue
passed in such suit, law assumes issue, within the meaning of Section or question in dispute or for any
that all persons who have same 11 C.P.C. other reason it is desirable that any
interest as plaintiff in representative Explanation IV of Section 11 C.P.C. issue or question in dispute in suit
suit were represented by said provides "Any matter which might or should be determined before
plaintiffs and therefore are ought to have been made ground of deciding upon the right to the
constructively barred by res judicata defence or attack in such former suit discovery. In such a case, the Court
from reagitating the matter directly but which has not been made may order that issue or question to
and substantially in issue in former ground of attack or defence, shall be be determined first and reserve the
suit. deemed to have been matter question as to the discovery
In Forward Construction Co. v. directly and substantially in issue in thereafter. The rule, however, does
Probhat Mandal, AIR 1986 SC 391, it such suit." not apply where discovery is
was held that
necessary for the determination of relating to any matter in question in BINDING NATURE OF FOREIGN
such issue or question. the suit. JUDGEMENT ( Section 13)
(b) Non-compliance with order : Rule Section 13 provides "foreign
21 - Where any party fails to comply (2) The court may either refuse or judgement" shall be conclusive as to
with any order to answer adjourn such application if satisfied any matter thereby directly
interrogatories or for discovery or that such discovery is not necessary adjudicated upon between the same
production of documents, if such or not necessary at that stage of the parties or between parties under
party happens to be a plaintiff, his suit or make such order as it thinks whom they or any of them claim
suit may be dismissed for want of fit. litigating under the same title
prosecution, and if he happens to be except:
a defendant his defence will be (3) The court may exercise this 1. Where it has not been
struck off and will be placed in the power at any stage, either of its own pronounced by court of competent
same position as if he had not motion or on an application of any jurisdiction.
defendant. Such order, however, can party and subject to such conditions
be passed only after giving notice and limitations as may be prescribed 2. Where it has not been given on
and a reasonable opportunity of by it. merits of case.
being heard to the plaintiff or the
defendant as the case may be. If the (4) Generally, no order of discovery, 3. Where it appears on the face of
suit of the plaintiff is dismissed on inspection or production of proceedings to be founded on
this ground, he cannot file a fresh documents will be passed by the incorrect view of International Law
suit on the same cause of action. court on the application of the or refusal of recognised principle of
In Babber Sewing Machine Co. plaintiff until the written statement law in India.
Triloki Nath, AIR 1978 SC 1436 The is filed by the defendant or the time
court ordered the defendant to to file it has expired. 4. Where the proceedings in which
produce certain documents. The judgment was obtained are opposed
defendant did not comply with that (5) Discovery cannot be ordered by to natural justice.
order and his defence was, the court if it is of the opinion that it
therefore, struck off. At the trial, he is not necessary either for the fair 5. Where it has been obtained by
was not allowed to cross-examine disposal of the suit or for saving fraud.
the witnesses of the plaintiff. The costs.
defendant challenged that action. 6. Where it sustains a claim founded
Setting aside the decision, the (6) A party against whom an order on breach of any law in force in
Supreme Court held that the for discovery of documents has been India.
stringent provisions of Order 11, made by the court is, as a general
Rule 21 should not be lightly invoked rule, bound to produce all the A combined reading of Sections 43
and must be applied only in extreme documents in his possession or to 44-A shows that the Indian courts
cases as a last resort. power. However, if such party have power to execute the decrees
Q. 19 Describe the procedure you considers that he is entitled to legal passed by
will adopt in the case of discovery protection in respect of a particular (1) Indian courts to which the
and inspection of documents in document which he has been provisions of the Code do not apply;
possession of the opposite party. ordered to produce by the court, he
Ans. Procedure in case of discovery is at liberty to take such objection. (2) the courts situate outside India
and inspection of documents. - Rule which are established by the
12 of Order 11 provides that any (7) When such privilege is claimed authority of the Central
party may, without filling any for any document, the court will Government;
affidavit, apply to the court for an inspect such document for the
order directing any other party to purpose of deciding the validity of (3) revenue courts in India to which
any suit to make discovery on oath the claim of privilege, unless the the provisions of the Code do not
of the documents which are in his document relates to matters of apply; and
possession or power, relating to any Stage.
matter in question therein. An (4) superior courts of any
application will, therefore, have to Q. 20 What do you understand by reciprocating territory.
be made for discovery of documents `Foreign Judgment' ? In what
in possession of the opposite party manner may a decree of foreign In Sheikh Ali v. Sheikh Mohd. AIR
in terms of Rule 12, Order 11, C.P.C. court be executed in India ? 1967 Madras 45(a) it was held :
The general rules as to discovery of Ans. Section 2(6) C.P.C. says `Foreign "The jurisdiction of district court in
documents may be summarised as Judgment' means judgment of this country to execute foreign
under : foreign court. judgment arises from and is
(1) Any party to a suit may apply to "Foreign court" means a court exercisable by the filing of a certified
the court for an order directing any situated outside India and not copy of foreign decree or
other party to make discovery on established or continued by the judgement. It is only thereafter and
oath of the documents which are or authority of Central Govt. never until then the procedural laws
have been in possession or power, as to lex fori will be attracted to
execution. The Limitation Act can obtain relief respecting, or objection unless in its opinion there
apply possibly to such execution compensation for wrong to, was, at the time of the institution of
only after filing a certified copy of immovable property held by or on the suit, no reasonable ground for
the foreign decree or judgment as behalf of the defendant may, where uncertainty as to the court having
required by Section 44-A(1) of Civil the relief sought can be entirely jurisdiction with respect thereto and
Procedure Code. obtained through his personal there has been a consequent failure
obedience, be instituted either in of justice.
In M/s International Woollen Mills v. the court within the local limits of Suits for Compensation for wrongs
M/s Standard Wools (U.K.), AIR 2001 whose jurisdiction the property is to person or movables. Section 19 of
SC 2134, it was observed section 44- situate, or in the court within the the Code of Civil Procedure provides
A C.P.C. says where a certified copy local limits of whose jurisdiction the that where a suit is for
of decree of any superior court of defendant actually resides or carries compensation for wrong done to the
any reciprocating territory has been on business or personally works for person or to movable property, if
filed in District Court along with gain. the wrong was done within the local
certificate from such superior Court Suits for Immovable property situate limits of the jurisdiction of one court
stating the extent if any to which the within jurisdiction of different and the defendant resides, or carries
decree had been satisfied or Courts. Section 17 of the Civil on business, or personally works for
adjudicated, decree may be Procedure Code provides that where gain, within the local limits of the
executed in India as if it had been a suit is to obtain relief respecting or jurisdiction of another court, the suit
passed in India. Court observed compensation for wrong to may be instituted at the option of
regarding section 13(b) C.P.C. that it immovable property situate within the plaintiff in either of the said
can not be said that expression the jurisdiction of different courts, courts.
"Foreign Judgment on merit" implies the suit may be instituted in any Other suits to be instituted where
that it must have been passed after court within the local limits of whose defendant resides or cause of action
contest and after evidence had been jurisdiction any portion of the arises. Section 20 of the Code of Civil
let in from both the side. An Ex parte property, is situate, provides that in Procedure provides that subject to
foreign decree and judgment in respect of the value of the subject- the aforesaid rules, every other suit
favour of plaintiff may deemed to be matter of the suit, the entire claim is shall be instituted in a court within
judgment given on meriet if some cognizable by such court. the local limits of jurisdiction -
evidence is adduced on behalf of Place of institution of suit where (i) where the cause of action, wholly
plaintiff and judgment is based on local limits of jurisdiction of courts or partly, arises; or
consideration of that evidence." are uncertain. Section 18 of the
Q. 21 How a suit is to be instituted ? Code of Civil Procedure provides (ii) where the defendant resides, or
What are the rules regarding that where it is alleged to be carries on business or personally
institution of suits ? uncertain within the local limits of works for gain; or
Ans. A suit is to be instituted by jurisdiction of which of two or more
presentation of a plaint or in any courts, any immovable property is (iii) where there are two or more
prescribed manner. Sections 15 to situate, any one of those courts if defendants, any of them resides or
20 of Code of Civil Procedure satisfied that there is ground for the carries on business or personally
regulate the forum for the alleged uncertainly, record a works for gain, provided that in such
institution of suits. Section 15 of statement to that effect and case (a) either the leave of the court
Code says - thereupon proceed to entertain and is obtained, or (b) the defendants
"Every suit shall be instituted in the dispose of any suit relating to that who do not reside or carry on
court of the Lowest grade property, and its decree in the suit business or personally work for gain
competent to try it." shall have the same effect as if the at that place acquiesce (agree to) in
property were situate within the such institution.
So section 15 refers to the pecuniary local limits of its jurisdiction,
jurisdiction of the Court. Underlying provided that the suit is one with Explanation - A corporation shall be
object of Section 15 is to see that respect to which the court is deemed to carry on business at its
court of higher grade may not be competent as regards the nature sole or principal office in India, in
over burdened with suits and to and value of the suit to exercise respect of any cause of action arising
ensure that justice may be provided jurisdiction. at any place where it has also a
at the door step of litigants. Sub-section (2) of section 18 C.P.C. subordinate office, at such place.
Suits to be instituted where subject further provides that where a Q. 22 Plaintiff a resident of
matter situate Section 16 of the Civil statement has not been recorded Faridabad has filed a suit in Delhi
Procedure Code provides that, under sub-section (1) and an Courts against the defendant, a
"subject to the pecuniary or other objection is taken before an resident of Delhi for declaration
limitations prescribed by any law, appellate or revisional Court that a that he has half share in the house
suits regarding immovable property decree or order in a suit relating to situated in Kanpur and in the sum
are to be instituted in court within such property was made by a court of Rs. 50,000 lying deposited in a
whose local jurisdiction the property not having jurisdiction where the bank in Delhi and that defendant
is situate". However, it has also been property is situate, the appellate or has wrongfully got the house
provided in its proviso that a suit to revisional court shall not allow the registered in his own name and is
also not admitting the claim of situated at Kanpur shall not be at Jaipur. Therefore in case in hand
plaintiff in the amount. The maintainable. suit for partition of property can be
defendant has contested the suit on Now question arises as to claim of filed at Jaipur, where suit property is
the ground that Delhi Courts have plaintiff for Rs. 50,000, lying situated.
no jurisdiction to try the suit. How deposited at Delhi Bank. Here (b) This problem is covered by
will you decide ? Section 20 of C.P.C. is relevant which Section 19 of C.P.C. which provides
Ans. Sections 15 to 20 of Civil provide that suits not covered by that suit for compensation for wrong
Procedure Code regulate the forum any Rules provided under section 16 to persons or moveable property
for the institution of suits. Section to 18 shall be filed : can be filed either where the wrong
16 of C.P.C. is relevant here which (a) Where the cause of action wholly is committed or where defendant
provide :- or partly arises resides or carries on business or
"Subject to pecuniary or other personally works for gain. In case in
limitation prescribed by any law, (b) Where defendant resides or hand A (Defendant) was residing in
suits - carries on business or personally Bombay, while defamatory
(a) for the recovery of immovable works for gain or statement was published in Delhi by
property A. So B can file suit again A either at
(c) Where there are two or more Bombay where A resides or at Delhi
(b) for partition of immovable defendants, any of them resides or where defamatory statement was
property carries on business or personally published.
works for gains provided in such Q. 24 A transport company has its
(c) for foreclosure, sale or case either leave of court is obtained head office at Chandigarh and
redemption in case of mortgage of or the defendant who does not branch offices at Chennai, Jaipur
or charge upon immovable property. reside or carry on business or and Mumbai. A dispute cropped up
personally works for gains at that between Sam and the company in
(d) for the determination of any place acquiesce in such institution. respect of a transaction made
other right to or interest in through Chennai office. Sam files a
immovable property. Defendant in present case resides at suit in respect of this dispute
Delhi and sum of Rs. 50,000, in against the company in a court at
(d) for compensation for wrong to respect of which cause of action Jaipur. How the court will decide ?
immovable property. arose also lying deposited at Delhi Ans. Section 20 of the Code of Civil
Bank therefore in view of provisions Procedure, so far as it is relevant for
(f) for recovery of immovable of Section 20 C.P.C., plaintiff's suit at our purpose, reads as under :
property actually under distraint or least for Rs. 50,000, is maintainable "Subject to the limitations aforesaid,
attachment, at Delhi Courts. every suit shall be instituted in a
Q. 23 (a) X, Y and Z are joint owners Court within the local limits of
shall be instituted in the Court of a property situated at Jaipur. X whose jurisdiction -
within the local limits of whose lives in Bombay, Y lives in Delhi and (a) the defendant, or each of the
jurisdiction the property is situated. Z lives in Jaipur. In which court or defendants where there are more
Provided that suit to obtain relief courts can the suit for partition be than one, at the time of the
respecting or compensation for filed ? Give reasons. commencement of the suit, actually
wrong to immovable property held (b) A residing in Bombay, publishes and voluntarily resides, or carries on
by or on behalf of defendant may, in Delhi statements defamatory of business, or personally works for
where the relief sought can be B. Where can B file a suit for gain; or
entirely obtained through his compensation against A ?
personal obedience be instituted Ans. (a) Section 16 of the Code of (b) any of the defendants, where
either in court within the local limits Civil Procedure provides that suits there are more than one, at the time
of whose jurisdiction the property is relating to immovable property are of the commencement of the suit,
situate, or in the court within the to be instituted where subject- actually and voluntarily resides, or
local limits of whose jurisdiction the matter is situated. Its proviso also carries on business, or personally
defendant actually and voluntarily provides that if the relief sought can works for gain, provided that in such
resides or carries on business or be entirely obtained through the case either the leave of the Court is
personally works for gains." personal obedience of the given, or the defendants who do not
defendant, the suit may be reside, or carry on business, or
In the present case plaintiff's claim is instituted either in the court within personally work for gain, as
right or interest in immovable the local limits of whose jurisdiction aforesaid acquiesce in such
property which is situated at Kanpur the defendant resides or carries on institution;
therefore in view of clause (d) of business, or personally woks for
Section 16, Delhi Courts has no gain. That being so, suit for partition (c) or the cause of action, wholly or
territorial jurisdiction to decide the of property situated at Jaipur. in part, arises.
suit for such immovable property. Proviso to Section 16 C.P.C. will not
Therefore plaintiff's suit for his right be attracted in present case. X, Y Explanation : A corporation shall be
to or interest in immovable property and Z are joints owners, X lives in deemed to carry on business at its
Bombay, Y lives in Delhi and Z lives sole or principal office in India or, in
respect of any cause of action arising Court within the local limits of
at any place where it has also a (c) the cause of action, wholly or in whose jurisdiction-
subordinate office, at such place". part, arises." (a) the defendant, or each of the
So if a suit is filed against a defendants where there are more
Corporation on the ground of its Under this Section the plaintiff has than one, at the time of the
carrying on business, then in view if the option of suing at a place either commencement of the suit, actually
Explanation to Section 20, suit will where the cause of action or a part and voluntarily resides, or carries on
lie where the Corporation has its thereof has accrued, or in the forum business, or personally works for
head office even if no part of cause of the defendant, i.e., where the gain; or
of action arises there or branch defendant resides or carries on (b) any of the defendants, where
office where cause of action has business or personally works for there are more than one, at the time
arose. gain. of the commencement of the suit,
In the case in hand the suit against In view of the provisions contained actually and voluntarily resides, or
the Company can be filed at in Clause (b) of Section 20 of the carries on business, or personally
Chandigarh where it has its head Code, A can file the suit at Calcutta works for gain, provided that in such
office, or at Chennai where the where B resides, or at Delhi where C case either the leave of the Court is
Company has its branch office and resides; but in each of these cases given or the defendants who do not
cause of action has arisen at either the non-resident defendant reside, or carry on business, or
Chennai. No suit can be entertained should acquiesce in such institution personally work for gain, as
by a Court at Jaipur or Mumbai, or the leave of the Court should be aforesaid, acquiesce in such
although the company has its branch obtained. If the non-resident institutions; or
offices at those places, because no defendant objects, the suit cannot (c) the cause of action, wholly or in
part of the cause of action arose proceed without the leave of the part, arses.
either at Jaipur or Mumbai. Court.
Q. 25 A resides at Shimla, B at In the present case, the joint In the present case, the joint
Calcutta and C at Delhi. A, B and C promissory note payable on demand promissory note payable on demand
being together at Varanasi, B and C was executed by B and C at was executed by B and C at
make a joint promissory note Varanasi. In other words, the Kurukshetra. In other words, the
payable on demand and deliver it to contract was made at Varanasi. It is contract was made at Kurukshetra.
A. a settled proposition of law that the Therefore, A can file the suit on the
A files suit for recovery at Varanasi, making of the contract is a part of basis of the said pronote at
B and C object to Jurisdiction of the cause of action, and, as such, a Kurukshetra where a part of the
Court at Varanasi to try the suit suit can be filed on the basis of the cause of action arose. In view of the
asserting that defendants B and C said pronote at Varanasi where the provisions contained in Clause (b) of
do not reside at Varanasi. How cause of action arose. Section 20 of the Code, A can file the
would you decide the objection ? Q. 26 Determine the place of suing suit at Bangalore where B resides, or
Ans. Section 20 of the Code of Civil in the following cases: at Calcutta where C resides; but in
Procedure provides as under :- (i) `A', a resident of Delhi, `B' a each of these cases either of the
"Subject to the limitations aforesaid, resident of Bangalore and `C' of non-resident defendant should
every suit shall be instituted in a Calcutta, meet at Kurukshetra. acquiesce in such institution or the
Court within the local limits of There `B' and `C' borrowed Rs. leave of the Court should be
whose jurisdiction :- 10,000/- from `A' and jointly obtained. If the non-resident
executed a pronote and handed it defendant objects, the suit cannot
(a) the defendant, or each of the over to `A'. All of them went back proceed without the leave of the
defendants where there are more to their respective places but the Court.
than one, at the time of the money was not returned. `A' wants (ii) Section 16 of the Code of Civil
commencement of the suit, actually to file a suit for recovery of his Procedure provides that subject to
and voluntarily resides, or carries on money. the pecuniary or other limitations
business, or personally works for (ii) Father of `A' and `B' had a prescribed by any law, a suit for
gain; or bungalow at Gurgaon, one house at partition of immovable property
Rohtak and Delhi each and two big shall be instituted in the court within
(b) any of the defendants, where mango-groves in the district of the local limits of whose jurisdiction
there are more than one, at the time Hissar. After the death of the the property is situate. Then Section
of the commencement of the suit, father, `A' took over the 17 lays down that where a suit is to
actually and voluntarily resides, or management of the entire property obtain relief respecting, or
carries on business, or personally and began appropriating the compensation for wrong to,
works for gain, provided that in such income. `B' wants to sue for immovable property situate within
case either the leave of the Court is partition of the property. the jurisdiction of different Courts,
given or the defendants who do not Ans. (i) Section 20 of the Code of the suit may be instituted in any
reside, or carry on business, or Civil Procedure provides as under:- court within the local limits of whose
personally work for gain, as "Subject to the limitations aforesaid, jurisdiction any portion of the
aforesaid, acquiesce in such every suit shall be instituted in a property is situate. This Section is
institutions; or
practically another proviso to of a court and provides that defects High Court within the local limits of
Section 16(1) of the Code. as to place of suing under section 15 whose jurisdiction the court in which
Therefore, in the present case B can to 20 may be waived, if defendant the suit is brought is situate.
file a suit for partition of the said allows the trial Court to proceed to
properties in any one of the courts decide the matter without raising Apart from the said provisions
at Gurgaon, Rohtak, Delhi or Hissar. objection in this regard. In Kiran relating to transfer, section 24 of the
Q. 27 When can an objection to Singh v. Chaman Paswan, AIR 1954 Code of civil Procedure deals with
jurisdiction be raised ? Can an SC 340, it was observed- the general powers of transfer and
objection as to territorial or "When a case had been tried by a withdrawal. It provides that on the
pecuniary jurisdiction of the court court on the merits and judgment application of any of the parties and
be raised by a party before the rendered, it should not be liable to after notice to the parties and after
court of appeal or revision? be reversed purely on technical hearing such of them as desires to
Ans. Section 21 of the Code of Civil grounds, unless it had resulted in be heard, or of its own motion
Procedure deals with the question of failure of justice, and the policy of without such notice, the High Court
objections to jurisdiction of Court. It the legislature has been to treat or the District Court may at any
is important to point out here that objections to both territorial and stage withdraw any suit, appeal or
objection as to territorial jurisdiction pecuniary as technical and not open other proceedings before it for trial
of a court does not stand at par with to consideration by an appellate or disposal to any court subordinate
objection as to competency of court court, unless there has been a to it and competent to try or dispose
to try a case. Competency of a court prejudice on merits." of the same, or, withdraw any suit,
to try a case goes to the very root of appeal or other proceeding pending
the jurisdiction and where it is Q. 28 What are the provisions in any court subordinate to it. In
lacking it is uncurable irregularity, relating to transfer of a civil suit ? case of withdrawal, it can try or
vitiating the whole proceedings Ans. Sections 22 to 25 of the Code of dispose of the same, or transfer the
whereas objection as to local Civil Procedure lay down the same for trial or disposal to any
jurisdiction of a court can be waived. provisions relating to transfer of a court subordinate to and competent
Section 21 of Code is based on this suit. Section 22 of the Code of Civil to try or dispose of the same or
principle. Procedure provides that where a retransfer the same for trial or
OBJECTION AS TO TERRITORIAL suit may be instituted in any one of disposal to the court from which it
JURISDICTION Under Section 21(1), two or more courts and is instituted was withdrawn.
no objection as to the place of suing in one of such courts, any defendant By adding sub-section (3) to section
will be allowed by an appellate or after notices to the other parties, 24 of the Code of Civil Procedure, by
revisional court unless the following may at the earliest possible the Amendment Act of 1976, it has
three conditions are satisfied : opportunity and in all cases where further been clarified that courts of
(i) The objection was taken in the issues are settled, at or before such Additional and Assistant Judges shall
court of first instance ; settlement, apply to have the suit be deemed to be subordinate to the
transferred to another court, and District Judge Court and `proceeding'
(ii) It was taken at the earliest the court to which such application includes a proceeding for the
possible opportunity and in cases is made, after considering the execution of a decree or order. It has
where issues are settled at or before objections of the other parties, if further been provided by sub-
settlement of issues ; and any, shall determine in which of the section (5), which too has been
several courts having jurisdiction the added by the Amendment Act of
(iii) There has been a consequent suit shall proceed. 1976, that a suit proceeding may be
failure of justice. Section 23 of the Code of Civil transferred under this section from a
Procedure further lays down in Court which has no jurisdiction to try
OBJECTION AS TO PECUNIARY which court such application lies. it.
JURISDICTION Sub-section (2) of According to it, the position is as Section 25 of Code provide
section 21 of the Code of Civil follows :- regarding power of Supreme Court
Procedure provides that no (i) Where the several courts having to transfer suits etc. Section 25(1)
objection as to the competence of a jurisdiction are subordinate to the says that on application of a party
court with reference to the same appellate court, an application and after notice to the parties and
pecuniary limits of its jurisdiction under section 22 shall be made to after hearing such of them as desire
shall be allowed by any appellate or the appellate court. to be heard, the Supreme Court,
revisional Court unless such may at any stage, if satisfied that an
objection was taken in the Court at (ii) Where such courts are order under this Section, is
first instance at the earliest possible subordinate to different appellate expedient for the ends of justice,
opportunity and in all cases where courts, but to the same High Court, direct that any suit, appeal or other
issues are settled, on or before such the application shall be made to the proceeding be transferred from a
settlement, and unless there has said High Court. High Court or other Civil Court in
been a consequent failure of justice. one State to a High Court or other
So Section 21 which confines its (iii) Where such courts are Civil court in any other State.
application only to objections as to subordinate to different High Courts, Q. 29 What do you understand by
territorial or pecuniary jurisdiction the application shall be made to the an interpleader suit ? State the
relevant provisions contained in the charge on the thing claimed. Where relief in respect of, or arising out of,
Code of Civil Procedure Code with any of the defendants in an the same act or transaction or series
regard to such a suit. interpleader suit files a suit against of acts or transactions, is alleged to
Ans. (a) Meaning - An interpleader the plaintiff in another court in exist against such persons, whether
suit is a suit in which the real dispute respect of the subject-matter of the jointly, severally or in the
is not between the plaintiff and the suit, that court shall stay the alternative; and (b) if separate suits
defendant but between the proceedings. At the first hearing, the were brought against such persons,
defendants only and the plaintiff is court may declare that the plaintiff any common question of law or fact
not really interested in the subject- is discharged from all liability, award would arise.
matter of the suit. In other words, in him his costs and dismiss him from Before going into Non-joinder or
an interpleader suit, the defendants the suit; or if it thinks that justice or Mis-joinder of parties, it is necessary
interplead, i.e., plead against each convenience so requires, retain all to understand the meaning of
other instead of pleading against the parties until the final disposal of the "Necessary party" and "Proper
plaintiff as in an ordinary suit. suit. Where the admission of the party". A necessary party is one
Section 88 enacts that where two or parties or other evidence enables whose presence is indispensable for
more persons claim adversely to one the court to do so, it may adjudicate proceeding with the suit and for
another the same debt, sum of the title to the thing claimed. final decision thereof. On the other
money or other property, movable Q. 30 What do you under stand by hand "Proper party" is one in whose
or immovable, from another person non-joinder and mis-joinder of absence an effective order can be
who does not claim any interest in it parties and mis-joinder of causes of passed, but whose presence is
except the charges or costs and is action ? necessary for complete and final
ready to pay or deliver it to the Ans. The question of joinder of decision of suit.
rightful claimant, such person may parties may arise either as regards Mis-Joinder and Non-Joinder of
file an interpleader suit. the plaintiffs or as regards the Parties Where a person who is
(b) Conditions - The following defendants. Order 1 deals with the necessary or proper party to a suit
conditions must be satisfied before subject of parties to suit and inter has not been joined as a party to
an interpleader suit can be instituted alia (amongst other things) with the suit, it is a case of non-joinder. On
- joinder, misjoinder and non-joinder the other hand, if two or more
(1) there must be some debt, sum of of parties and to some extent with persons are joined as plaintiffs or
money or other property movable or the joinder of cause of action. defendants in one suit in
immovable in dispute; Joinder of plaintiffs (Rule 1) - All contravention of Order 1 rule 1 and
persons may be joined in one suit as 3 and they are neither necessary nor
(2) two or more persons must be plaintiffs where (a) any right to relief proper party, it is a case of mis-
claiming it adversely to one another; in respect of, or arising out of, the joinder of parties.
same act, or transaction or series of Order 1 rule 9 says "No suit shall be
(3) the person from whom such acts or transactions, is alleged to defeated by reason of the mis-
debt, money or property is claimed, exist in such persons whether joinder or non-joinder of parties,
must not be claiming any interest jointly, severally or in the and the court may in every suit deal
therein other than the charges and alternative; and (b) if such persons with the matter in controversy so far
costs and he must be ready to pay or brought separate suits, any common as regards the rights and interests of
deliver it to the rightful claimant; question of law or fact would arise. the parties actually before it :
and A enters into an agreement jointly Provided that nothing in this rule
with B and C to sell 100 tins of oil. A shall apply to non-joinder of a
(4) there must be no suit pending in thereafter refuses to deliver the necessary party.
which the rights of the rival goods. Here both, B and C have each
claimants can be property decided. of them a right to recover damages Misjoinder of Causes of Action Order
from A. The said right arises out of 2 Rule 3 of the Code of Civil
(c) Procedure - Order 35 lays down the same transaction, namely, the Procedure provides that save as
the procedure relating to an breach of agreement; and common otherwise provided, a plaintiff may
interpleader suit. In every questions of law and fact would also unite in the same suit several causes
interpleader suit the plaint in arise. B and C, therefore, may file a of action against the same
addition to other statements suit jointly as plaintiffs against A for defendant, or the same defendants
necessary for plaints, state (i) that damages. jointly, and any plaintiffs having
the plaintiff claims no interest in the Separate trials (Rule 2) - Where it cause of action in which they are
subject-matter in dispute other than appears to the court that any joinder jointly interested against the same
the charges or costs; (ii) the claims of plaintiff may embarrass or delay defendant or the same defendants
made by the defendants severally; the trial of the suit, the court may jointly may unite such causes of
and (iii) there is no collusion put the plaintiffs to their election or action in the same suit. Therefore, if
between the plaintiff and any of the order separate trials or make such the plaintiffs are not jointly
defendants. The Court may order other order as may be expedient. interested against the same
the plaintiff to place the thing Joinder of defendants (Rule 3) - All defendant or defendants jointly,
claimed in the custody of the court persons may be joined in one suit as then, there is a misjoinder of causes
and provide his costs by giving him a defendants where - (a) any right to of action.
It has further been provided in Order provides for substitution or addition matter involved in it may finally and
2 Rule 7 C.P.C., that all objections of parties to suit on either of two completely be adjudicated upon and
regarding misjoinder of causes of grounds namely:- fresh litigation over the same matter
action shall be taken at the first (a) He ought to have been joined as may be avoided.
hearing of the suit i.e., at the earliest plaintiff or defendant and is not so Rule 8 of Order 1 of C.P.C. is an
opportunity at or before settlement joined or exception to above said general rule.
of issue, unless the ground of It provides that when there are
objection has subsequently arisen (b) Without his presence, the number of persons commonly
and any such objection not so taken question involved in the suit can not interested in a suit, one or more of
shall be deemed to have been be completely decided. them can with the leave or upon the
waived. Same is the position direction of court, sue or be sued on
regarding the objections as to non- So precisely speaking no suit shall be behalf of themselves and other.
joinder or misjoinder of parties as dismissed for non-joinder or mis- Plaintiff in representative suit need
provided in Order 1 Rule 13 C.P.C. joinder of parties unless it is shown not to obtain previous consent of
Q. 31 A owned some land which B that any necessary party is there persons whom he represents.
was cultivating as a tenant. A had which is not joined and without DEFINITION: `Representative Suit'
four sons C, D, E and F. After A's whom matter can not completely may be defined as suit filled by or
death the land was sold by C, D, E and adequately decided. against one or more persons on
and G son of predeceased son F to In Laxmi Shankar v. Yash Ram Vasta behalf of themselves and others
H vide registered sale deed dt. AIR 1993 SC 1587 Supreme Court having same interest in the suit.
12.2.68. H filed suit for recovery of after relying upon the judgment of Order 1 Rule 8 C.P.C. has been
possession against B. B contested Pal Singh v. Sunder Singh AIR 1989 enacted in order to save time and
the suit on the ground inter alia SC 758 wherein it was held that expense to ensure that a single
that there are other co-owners of when other co-owner did not object comprehensive trial of question in
that property and since all co- to eviction, one co-owner could which numerous persons are
owners have not joined in the filing maintain eviction petition in the interested and also to avoid
of suit, the suit is bad for non- absence of other co-owner. Similarly harassment to parties by multiplicity
joinder of necessary parties. In the in A. Vishwanath Pillai's Case AIR of suits.
written statement he also gave the 1991 SC 1966 wherein it was held However Order 1 Rule 8 C.P.C.
pedigree table of A but did not lead that co-owner could successfully file contains only enabling provisions
any evidence in this regard. The suit and recover the property and does not compel any one to
revenue record also did not show against stranger, held that in the represent many. Order 1 Rule 8 also
that there was any other legal heir absence of necessary proof it can does not vest a right of suit in a
of A except C, D, E and G at the time not be held that suit is not person, if he by himself has no right
of sale. So H contended that he is maintainable on the ground of non- to sue. It is necessary to bring the
sole owner and suit is not bad for joinder of necessary party. case within the provisions of Order 1
non-joinder of other co-owners - Coming now to case in hand only Rule 8, all the members of a class
Decide. issue for determination is whether should have common interest in a
Ans. There is essential distinction plea of defendant (b) in the suit that subject matter and a common
between "Necessary Party" and necessary parties have not been grievance and relief should in its
"Proper Party" A necessary Party is joined is sustainable. In his written nature be beneficial to all.
one whose presence is indispensable statement Defendant (b) has CONDITIONS - Following Rules must
or against whom relief is sought and produced pedigree table. However exist for application of Rule 8 Order
without whom no effective order to substantiate his plea, B has not 1 of C.P.C.
can be passed. A Property Party is led any evidence as to Necessary (a) The Parties must be numerous.
one in whose absence an effective party. A vague statement of B could
order can be passed but whose not be considered sufficient for (b) They must have same or
presence is necessary for complete attraction of provisions of Order 1 common interest in suit.
and final decision on question Rule 9 C.P.C. On the other hand
involved in proceedings. Revenue Record shows that there (c) Permission must have been
Order 1 Rule 9 of C.P.C. provide that were no other legal heirs of A except granted or direction must have been
"no suit shall be defeated by reason B, C, D and G at the time of sale of given by the court.
of the misjoinder or non-joinder of suit property to plaintiff (H).
parties and court may in every suit Therefore in the absence of any (d) Notice must have been issued to
deal with the matter in controversy proof that there are other co-owner parties whom it proposed to
so far as regards the rights and and are necessary parties, the suit represent in the suit.
interests of parties actually before it, can not be dismissed for non-joinder
Provided that nothing in this Rule of necessary parties. Q. 33 Can a person file a fresh suit
shall apply to non-joinder of Q. 32 What do you understand by in respect of same cause of action,
necessary party." Representative Suit ? when he has in a former suit,
So general Rule is that no suit can be Ans. The general Rule is that all relinquished part of his claim ?
decided without necessary parties to persons interested in the suit should Ans. Order 2 Rule 2 of the Code of
it. However Rule 10 of Order 1 C.P.C. be joined as party to it so that Civil Procedure provides that every
suit shall include the whole of the Ans. Order 2 of Civil Procedure Code landlord for recovery of possession
claim which the plaintiff is entitled deal with Frame of Suit. of the same property from the
to make in respect of the cause of Order 2 Rule 1 says as far as tenant. Whether both these suits
action ; but a plaintiff may relinquish practicable all matters in dispute can be consolidated ?
any portion of his claim in order to between parties be disposed of Ans. (a) Power of Court to Order
bring the suit within the jurisdiction finally. Separate Trials.
of any court. It further provides that Order 2 Rule 2 provides that "every Order 2 Rule 6 of the Code of Civil
if a plaintiff omits to sue in respect suit must include whole of the claim Procedure provides that where it
of, or intentionally relinquishes any to which plaintiff is entitled in appears to the court that joinder of
portion of his claim, he shall not respect of a cause of action and action in one suit may embrass or
afterwards sue in respect of the where plaintiff omits to sue or delay the trial, or, is otherwise
portion so omitted or relinquished. intentionally relinquish any portion inconvenient, the Court may order
Thus, the plaintiff is not entitled to of his claim, he shall not, afterwards separate trials or make such other
spilt his cause of action in two parts be allowed to sue in respect of order as may be expedient in the
and bring separate of any portion of portion of claim so omitted or interest of justice. The object of Rule
his claim arising from the same relinquished." 6 is to prevent embarrassment or
cause of action, or relinquishes part Underlying object of legislature to delay in the trial of suit and it gives
of his claim, he will be precluded enact this provision is thus so far as power to the court to order separate
from filing a fresh suit in respect of possible all the matters in dispute trials of causes of action whose
the same cause of action or the between parties in respect of same joinder may cause embarrassment
portion so omitted or relinquished. cause of action may be disposed of but the defendant cannot claim the
Order 2 Rule 2 of the Code of Civil in the same suit so as to prevent separation of the trials as of right.
Procedure is based on the principle further litigation. The said rule applies when it is open
that the defendant should not be In Gurubax Singh v. Boora Lal AIR to the plaintiff to combine several
vexed twice for the same cause. It is 1964 SC 1810 - it was held: to make causes of action in one suit and it
directed against the two evils, that the Rule applicable, following does not apply to a cause of
is, spliting up of claims and spliting conditions must be fulfilled : misjoinder of causes of action.
of remedies. As regards the (i) Second suit must be in respect of (b) Yes. The Court can order
remedies available in respect of the same cause of action as that on consolidation of pending suits in
same cause of action, sub-rule (3) of which a previous suit was based. appropriate cases. It has been held
Rule 2 of Order 2 of the Code of Civil in several cases that the Courts have
Procedure provides that a person (ii) In respect of that cause of action, inherent jurisdiction to order
entitled to more than one relief in plaintiff was entitled to more than consolidation of suits. The Court
respect of the cause of the action one relief. should dispose of consolidated suits
may sue for all and any of such or appeals by one judgment. The
reliefs; but if he omits, except with (iii) Being so entitled plaintiff consolidation is to be done keeping
the leave of the court, to sue for all without leave of the court omitted in view the convenience of all the
such reliefs, he shall not afterwards to sue for relief, for which now parties concerned.
sue for any relief so omitted. second suit has been filed. Where a suit is filed by a tenant for
The following conditions are declaring him as a monthly tenant of
essential for attracting the That being the legal position, in the defendant-landlord and
provisions of Order 2 Rule 2 of the problem in hand Order 2, Rule 2 is subsequently another suit is filed by
Code of Civil Procedure :- not applicable because suit for landlord for recovery of possession
(i) That the second suit is in respect mesne profit (Damage for wrongful of the same property from the
of the same cause of action as that possession) arise subsequent to tenant, both the suits can be
on which the previous suit was when suit for possession is decreed. consolidated, as held by the Hon'ble
based, Suit for possession and suit for High Court of Calcutta in Humayan
damages for wrongful possession Properties Limited v. Narayan Das
(ii) that in respect of the cause of (mesne profits) are two distincts suit Arora, AIR 1983 (NOC) 189 Calcutta.
action, the plaintiff was entitled to and have separate cause of action. Q. 36 State Rules relating to service
more than one relief; and Therefore plaintiff after having suit of summons.
for possession decreed can file suit Ans. Summons is a document issued
(iii) that the plaintiff without the for damages. from the office of a court of justice
leave of the court omitted to sue for Q. 35 (a) Whether the court has calling upon the person to whom it
the relief for which the second suit power to order separate trials in is directed to attend before a judge
has been filed. respect of a suit in which several or officer of the court on the day
causes of action have been joined ? mentioned therein. Vide
Q. 34 A plaintiff who is entitled to (b) Whether the Court can order Amendment Act, No. 22 of 2002
sue for possession and damages consolidation of pending suits ? A Rule 1 to Order V has been
files suit for damages only. Suit is suit is filed by a tenant for declaring amended. Sub-rule (1) to Rule 1 says
decreed. Can he file suit for him as a monthly tenant of the - "When a suit has been duly
recovery and damages ? defendant landlord and instituted, a summons may be
subsequently another suit is filed by issued to defendant to appear and
answer the claim and to file the this family, refuses to sign the of Summons By Court" - Rule 9 inter
written statement of his defence if acknowledgement, or where the alia says that where defendant
any within 30 days from the date of serving officer after using all due and resides within the jurisdiction of
service of summons on that reasonable diligence, cannot find the court in which suit is instituted or
defendant : defendant who is absent from his has an agent resident within that
Provided that no such summons residence at the time when service jurisdiction who is empowered to
shall be issued when a defendant is sought to be effected on him at his accept the summon it shall, unless
has appeared at the presentation of residence within a reasonable time court otherwise directs, be delivered
plaint and admitted the claim of and there is no agent empowered to to proper offices, to be served by
plaintiff. accept service of the summons on him or to such courier services as all
his behalf, nor any other person on approved by the court.
Provided further that where whom the service can be made, the (5) Serice by curier. - Sub rule (3) as
defendant fails to file the written serving officer shall affix a copy of amended in year 2002 says service
statement within said period of 30 summons on the outer door or some of summons may be made by
days he shall be allowed to file the other conspicuous part of the house delivering or transmitting a copy
same on such other days as may be in which the defendant ordinarily thereof by registered post A.D. or by
specified by the court for reasons to resides or carries on business or speed-post or by such courier
be recorded in writing, but which personally works for gain, and shall services as approved by High Court
shall not be later than 90 days from then return the original to the court or Court referred in sub-rule (1).
date of service of summons." Order from which it was issued, with a However service of summons under
V Rule 2 of the Code of Civil report endorsed thereon or annexed this rule shall be made at the
Procedure also provides that every thereto, stating that he has so expense a plaintiff.
summons shall be accompanied by a affixed the copy, the circumstances (6) Substituted Service : Order V
copy of the plaint or, if so permitted, under which he did so. Rule 20 of the Code of Civil
by a concise statement. (3) Service by Registered Post : Rule Procedure provides for substituted
12-A has been added to Order V of service. It lays down that where the
RULES RELATING TO SERVICE OF the Code of Civil Procedure by the court is satisfied that there is no
SUMMON (1) Personal Service: Amendment Act of 1976 and it reason to believe that the defendant
Order V Rule 10 of Code of Civil provides for simultaneous issue of is keeping out of the way for the
Procedure provides that service of summons for service by post in purposes of avoiding service, or that
summons shall be made by addition to personal service. It lays for any other reasons the summons
delivering or tendering a copy down that the court shall, in cannot be served in the ordinary
thereof, signed by the judge or such addition to and simultaneously with, way, the court shall order the
officer as he appoints in this behalf the issue of summons for service summons to be served by affixing a
and sealed with the seal of the also direct the summons to be copy thereof in some conspicuous
court. According to Rule 12 of Order served by registered post, part of the house, if any, and in
V of the Code of Civil Procedure, acknowledgement due, addressed to which the defendant is known to
wherever it is practicable, service the defendant or his agent have last resided or carried on
shall be made on the defendant in empowered to accept the service at business or personally worked for
person, unless he has an agent the place where the defendant or gain or in such other manner as the
empowered to accept service in his agent, actually and voluntarily court thinks fit.
which case the service on such agent resides or carries on business or Sub-rule 1 - A added to the said
shall be sufficient. personally works for gain. Rule, by the Amendment Act of
Order V Rule 15 of the Code of Civil Sub-rule (2) of Rule 12-A of the said 1976, further provides that where
Procedure provides that where in Order V lays down that when an the court acting under Sub-rule (1)
any suit the defendant is absent at acknowledgement purporting to be orders service by an advertisement
the time when the service of signed by the defendant or his agent in a newspaper, the newspaper shall
summons is sought to be effected on is received by the court or the postal be a daily newspaper circulating in
him at this residence and there is no article containing the summons is the locality in which the defendant is
likelihood of his being found at the received back by the court with an last known to have actually and
residence within a reasonable time endorsement purporting to have voluntarily resided, carried on
and he has no agent empowered to been made by a postal employee to business or personally worked for
accept service of the summons on the effect that the defendant or his gain.
his behalf, service may be made on agent had refused to take delivery of (7) Service on Soldiers, Sailors or
any adult member of the family, the postal article containing the Airman : Rule 28 of Order V of the
whether male or female, who is summons when tendered to him, Code of Civil Procedure provides
residing with him. the court issuing the summons shall that where the defendant is a
(2) Service by Affixation : Order V declare that the summons had been soldier, sailor or airman, the court
Rule 17 of Code of Civil Procedure duly served on the defendant. shall send the summons for service
provides this mode of service. (4) Delivery of Summons by Court. - to his commanding officer, together
According to it, where the defendant Vide Amendment Act No. 22 of with a copy to be retained by the
or his agent or such other person, as 2002, Rule 9 of Order 5 has been defendant.
aforesaid, i.e., the adult member of amended, which provided Delivery
(8) Service on Corporation : Order statement of defence in writing and is intended to be contested, shall be
XXIX Rule 2 of the Civil Procedure filed by defendant in which he deals distinctly specified in the pleading by
Code deals with service on with every material facts alleged by the plaintiff or defendant, as the
corporation. It provides that where plaintiff in the plaint and also states case may be, and all conditions
the suit is against a corporation, the any new facts which may be in his precedent necessary for the case of
summons may be served: (a) on the favour including legal objections. the plaintiff or defendant shall be
secretary, on any director, or other Order 6 Rule 2 of Code provides that implied in his pleading and,
principal officer of the corporation, every pleading shall contain, and therefore, such conditions need not
or (b) by leaving it or sending it by contain only, a statement in a be alleged specifically. [Order VI
post addressed to the corporation at concise form all material facts on Rule 6 C.P.C.]
the registered office, or if there is no which the party pleading relies for
registered office, then at the place his claim or defence as the case may (vi) Where the contents of any
where the corporation carries on be, but not the evidence by which document are material, it shall be
business. they are to be proved and shall as sufficient in any pleadings to state
(9) Service on defendant resides and when necessary be divided into the effect thereof as briefly as
within the jurisdiction of another paragraphs numbered consecutively. possible without setting out the
court. - Service of summons on the Object of Pleadings whole or any part thereof, unless
defendant who resides within the The whole object of pleadings is to the precise words of the document
jurisdiction of another court is to bring parties to definite issues and or any part thereof are material.
effected in accordance with Rule 25 to diminish expense and delay and [Order VI Rule 9 C.P.C.]
Order V the Code of Civil Procedure. to prevent surprise at the hearing. In
It provides that a summons, in such Ganesh Trading Co. v. Moji Ram, AIR (vii) Wherever it is material to allege
a case, may be sent by the court by 1979 SC 484 it was observed : malice, fraudulent intention,
which it is issued, whether within or "Provisions relating to pleadings in knowledge or other condition of the
without the State, either by one of civil case are meant to give to each mind of any person, it shall be
its officers or by post to any court side intimation of the case of the sufficient to allege the same as a fact
having jurisdiction in the place other so that it may be met, to without setting out the
where the defendant resides. enable courts to determine what is circumstances from which the same
(10) Service on defendant residing really at issue between parties, and is to be inferred. [Order VI Rule 10
out of India. - Service on the to prevent deviations from the C.P.C.]
defendant residing out of India and course which litigation on particular
having no agent in India is to be causes of action must take." (viii) Wherever it is material to allege
effected in accordance with the notice to any person of any fact,
provisions of Rule 25 of Order V of Rules Regarding Pleadings :- The matter or thing, it shall be sufficient
Code of Civil Procedure. It provides Code of Civil Procedure lays down to allege such notice as a fact, unless
that where the defendant resides the following rules regarding the form of the precise term of such
out of India has no agent in India pleadings of the parties:- notice, or the circumstances from
and empowered to accept service, (i) Pleading must state the material which such notice is to be inferred,
the summons shall be addressed to facts on which the party relies and are material (Order VI Rule 11 C.P.C.)
the defendant at the place where he not evidence. [Order 1 rule 2(1)]
is residing and sent to him by post, if (ix) Whenever any contract or any
there is postal communication (ii) The facts should be stated in the relation between any person is to be
between such place and the place form of a concise statement and implied from a series of letters or
where the court is situate. shall be divided into paragraphs conversations or otherwise from a
Q. 37 What is meant by "Pleadings" numbered consecutively. [Order VI number of circumstances, it shall be
? Briefly state the object and Rule 2(2) C.P.C.] sufficient to allege such contract or
fundamental rules regarding relation, as a fact, and to refer
pleadings. (iii) In the pleadings, dates, sums and generally to such letters,
Ans. Pleadings : Order 6 Rule 1 of numbers shall be expressed in conversations or circumstances
Code of Civil Procedure provides figures as well as in words. [Order VI without setting them out in detail.
that "Pleading" shall mean plaint or Rule 2(3) C.P.C.] [Order VI Rule 12 C.P.C.]
written statement. So pleadings are
statements in writing, filed by each (iv) In all cases in which the party (x) Facts which the law presumes
party to a case stating what his relies on any misrepresentation, need not be pleaded. [Order VI Rule
contention will be at the trial and fraud, breach of trust, wilful default 13]
giving all such details as his and undue influence and in all other
opponent needs to know in order to cases in which particulars may be (xi) Legal pleas such as estoppel,
prepare his case in answer. necessary, they should be stated limitation and res judicata may be
Plaint is the statement of claim in with dates and items in the pleaded.
writing and filed by plaintiff in which pleadings. [Order VI Rule 4 C.P.C.]
he sets out his cause of action with (xii) Every pleading shall be signed
all necessary particulars and (v) Any condition precedent, the by the party and his pleader, if any.
"Written Statement" is the performance of occurrence of which [Order VI Rule 14 C.P.C.]
 (a) Leave to amend will be refused (g) Where the Plaintiff or Defendant
(xiii) Every pleading shall be verified where the amendment is not is minor or person of unsound mind,
at the foot by the party or by one of necessary for the purpose of statement to this effect.
the parties pleadings [Order VI Rule determining the real question in
15 C.P.C.] controversy. (h) Where Plaintiff has allowed set
off or relinquished any portion of his
Q. 38 What are the powers of the (b) Leave to amend will be refused if claim, the amount so allowed or
court to allow amendment of it introduces a totally different and a relinquished
pleadings ? new and inconsistent case or
Ans. General Rule of pleadings is changes the fundamental character (i) If subject matter of suit is
that all the material facts and of case. immoveable property, description of
necessary particular must be stated such property for identity
in the pleadings and decision cannot (c) Leave to amend will be refused
be based on grounds outside the where the effect of proposed (j) If the suit is time barred , the
pleadings. But many a time the party amendment is to take away from grounds upon which the exemption
may find it necessary to amend his other side a legal right accrued in his from law of Limitation is claimed.
pleadings before or during trial of favour by lapse of time or when
the case. Rule 17 of Order 6 C.P.C. leave to amend pleadings is not In view of Civil Procedure Code
provides for amendments of made in good faith. (Amendment) Act 2002, Rule 9 of
pleading. It reads as under:- Order 7 has been amended, now, it
"The court may at any stage of Recently Supreme Court in B.K.N. provides -
proceedings allow either party to Pillai v. P. Pillai, AIR 2000 SC 614 has "PROCEDURE ON ADMITTING
alter or amend his pleadings in such observed:- PLAINT : Where the court orders
manner and on such terms as may "All amendments of pleadings that the summons be served on
be just and all such amendments should be allowed which are defendants in the manner provided
shall be made as may be necessary necessary for determination of real in Rule 9 of Order 5, it will direct the
for the purpose of determining the controversy in suit provided plaintiff to present as many copies
real questions in controversy proposed amendment does not alter of the plaint on plain paper as there
between the parties." or substitute new cause of action or are defendants within seven days
proposed amendment should not from the date of such order along
Civil Procedure Code (Amendment) cause such prejudice which cannot with requisite fee for service of
Act, 2002 has inserted proviso to be compensated by cost" summons on defendants."
Rule 17 of Order 6 of Code which
says :- Q. 39 What do you understand by Order 7 Rule 10 C.P.C says that
"Provided that no application for "Plaint" and "Written Statement" ? where at any stage of suit, court
amendment shall be allowed after What are particulars which are finds that it has no jurisdiction either
the trial has commenced, unless the required to be contained in 'Plaint' teritorrial or pecuniary or with
court comes to the conclusion that and 'Written Statement' ? regard to subject matter of suit, it
inspite of due diligence, the party Ans. PLAINT : Plaint is statement of will return the plaint to be
could not have raised the matter claim , a document by presentation presented to proper court.
before the commencement of trial." of which the suit is instituted. Order Order 7 Rule 11 says that Plaint will
7 Rules 1 to 5 C.P.C. say that Plaint be rejected in following cases :
So the object of the Rule is that the should contain fillowing particulars : (a) Where plaint does not disclose
courts should try the merits of case (a) Name of the court in which suit is the cause of action.
that come before them and should brought.
consequently allow all amendments (a) Where relief claimed is under
that may be necessary for (b) Name , description and place of valued and valuation is not
determining the real question in residence of Plaintiff(s) and corrected within the time fixed by
controversy between the parties Defendant(s) court.
provided it does not cause injustice
or prejudice to other side. Therefore (c) Facts constituting the cause of (c) Where plaint is insufficiently
main points to be considered before action and when it arose. stampped and plaintiff fails to pay
a party is allowed to amend his requisite court fee fixed by court.
pleadings are: Firstly whether the (d) Facts showing that court has
amendment is necessary for jurisdiction. (d) Where suit appears to be barred
determination of real question in by Law.
controversy and secondly can the (e) Statement of value of subject
amendment be allowed without matter of suit for the purpose of Following ground were added vide
injustice to other side. court fee Amendment Act of 1999 and 2002,
However in following cases, court is in Rule 11 of Order 7 one ground is
justified in refusing to amend (f) Relief claimed by Plaintiff. added as :-
pleadings :-
(e) Where it is not filed in duplicate
 In Amar Chand v. Union of India, AIR
(f) Where plaintiff fails to comply Vide Amendment Act of 2002 Sub- 1973 SC 313, it was observed that
with provisions of Rule 9 WRITTEN rule (3) is amended in Rule 1-A of when the plaint is filed in proper
STATEMENT : Written statement is Order 8 of Code as :- court after getting it back from the
pleading of defendant wherein he "A document which ought to be wrong court, it cannot be said to be
deals with every material fact produced in court by the defendant continuation of suit. Suit must be
alleged by plaintiff in his plaint and under this rule, but is not so deemed to be presented when it is
also states any new fact in his produced shall not, without the filed in proper Court."
knowledge and takes legal leave of the court, be received in By Order VII, Rule 10-A of the Code
objections against the claim of evidence on his behalf at the hearing of Civil Procedure, it has been
plaintiff. of the suit." provided that where, in any suit,
after the defendant has appeared,
Civil Procedure Code (Amendment) Vide Amendment Act 2002, Rule 9 the court is of opinion that the plaint
Act 2002 has amended Rule 1 of and 10 to Order 8 have been should be returned, it shall, before
Order 8 of Code in following words : amended in following words - doing so, intimate this decision to
"The defendant shall within 30 days "9. Subsequent pleadings - No the plaintiff and the plaintiff, on
from the date of service of summons pleading subsequent to the written receiving such intimation, may make
on him, present a written statement statement of a defendant other than an application to the court (a)
of his defence : by way of defence to set-off or specifying the court in which he
counter-claim shall be presented proposes to present the plaint after
Provided that where defendant fails except by the leave of the Court and its return (b) praying that the court
to file the written statement within upon such terms as the Court thinks may fix a date for the appearance of
said period of thirty days, he shall be fit; but the Court may at any time the parties in the said court and (c)
allowed to file the same on such require a written statement or requesting that the notice of the
other day as may be specified by the additional written statement from date so fixed may be given to him
court, for reasons to be recorded in any of the parties and fix a time of and to the defendant. Sub-rule (3) of
writing, but which shall not be later not more than thirty days for Rule 10-A of the Code lays down
than ninety days from the date of presenting the same. that where an application is made by
service of summons." the plaintiff, the Court shall, before
10. Procedure when party fails to returning the plaint, and
Order 8 Rule 1 to 5 and 7 to 10 C.P.C present written statement called for notwithstanding that the order for
provides as to particulars to be by Court - Where any party from return of plaint was made by it on
contained in a written statement : whom a written statement is the ground that it has no jurisdiction
(a) Defendant may take any number required under Rule 1 or Rule 9 fails to try the suit : (a) fix a date for the
of defences either simply or to present the same within the time appearance of the parties in the
alternatively, even though they may permitted or fixed by the Court, as court in which the plaint is proposed
be inconsistent provided they are the case may be, the Court shall to be presented and (b) give to the
maintainable at Law. pronounce the judgment against plaintiff and to the defendant notice
him, or make such order in relation of such date for appearance. Sub-
(b) New facts such as the suit is not to the suit as it thinks fit and on the rule (4) of this Rule further provides
maintainable or that transaction is prouncement of such judgment a that where the notice of the date for
either void or voidable and all such decree shall be drawn up". appearance is given, it shall not be
defences as , if not raised would necessary for the court in which the
take the plaintiff by surprise must be Q. 40 (A) When can a plaint be plaint is presented after its return,
raised. returned for presentation to to serve the defendant with a
another court ? summons for appearance in the suit,
(c) Defendant is bound to produce (B) When can court reject the plaint unless that court, for reasons to be
all the documents in support of his ? recorded otherwise directs, and the
defence or his claim to set-off or Ans. (A) RETURN OF PLAINT Order said notice shall be deemed to be a
counter claim, which are in his 10 Rule 1(1) of Code of Civil summons for the appearance of the
possession. Procedure says "Subject to the defendant in the court in which the
provisions of rule 10-A the plaint plaint is presented on the date so
(d) Where defendant wants to deny shall at any stage of the suit be fixed by the court by which the
any allegation of fact in the plaint, returned to be presented to the plaint was returned.
he must do so clearly and court in which the suit should have Rule 10-B of order VII of the Code of
specifically. Every allegation of fact been instituted." Civil Procedure, deals with the
in plain if not specifically or by Rule 1(2) says "On returning a plain, power of appellate court to transfer
necessary implication, shall be taken the judge shall endorse thereon, the suit to the proper court. It provides
as admitted except as against a date of its presentation and return that where, on an appeal against an
person under disability. Court may the same of the party presenting it, order for the return of plaint, the
however require the proof of any and a brief statement of reasons for Court hearing the appeal confirms
such fact otherwise than by such returning it." such order, the Court of appeal may,
admission. if the plaintiff by an application so
desire, while returning the plaint, plaint is a "decree" within the demands, arising out of the same
direct plaintiff to file the plaint, meaning of Section 2(2) of the Code, transaction in cases of debits and
subject to the provisions of the and therefore, is appealable also. credits, in cases in which cross
Limitation Act, 1963, in the court in Q. 41 What do you understand by demands arise out of the same
which the suit should have been "Set off" ? Distinguish between the transaction or are so connected in
instituted (whether such court is Legal and equitable set off. their nature and circumstances as to
within or without the State in which Ans. When the plaintiff files a suit make it inequitable that the plaintiff
the court hearing the appeal is for recovery of money and the should recover and the defendant
situated), and fix a date for the defendant pleads liability of the driven to a cross suit, courts have
appearance of the parties in the plaintiff to pay to him, such a plea is allowed a set off even though the
court in which the plaint is directed called "set off". Thus in an action to amount may be an unascertained
to be filed and when the date is so recover money, a set off is a cross sum and such set off are known as
fixed it shall not be necessary for the claim by the defendant, for which he equitable set off. Legal set off has
court in which the plaint is filed to might maintain an action against the been recognized by Order VI Rule 6
serve the defendant with the plaintiff. Order VIII Rule 6 C.P.C. of the Code of Civil Procedure and
summons for appearance in the suit, provides that only a set-off which is can be raised as of right but no
unless that court in which the plaint for ascertained sum of money legally provisions for equitable set off has
is filed, for reasons to be recorded, recoverable by the defendant from been made in the Code of Civil
otherwise directs. the plaintiff within the pecuniary Procedure and it cannot be claimed
(B) REJECTION OF PLAINT Rules 11 to jurisdiction of the court is as a matter of right.
13 of Order 7 of Code of Civil permissible and both the parties Distinction Between Legal and
Procedure deal with rejection of must fill the same character as they Equitable Set off Following are the
plaint. After the Amendment Act No. fill in the plaintiff's suit. It has also main distinctions between the legal
22 of 2002, Rule-11 says plaint shall been provided in it that the and equitable set off -
be rejected in following cases :- defendant may, at the first hearing (a) Legal set off is for an ascertained
(a) Where it does not disclose a of the suit, but not afterwards, sum of money while equitable set
cause of action; unless permitted by the court, off may be allowed in respect of an
present a written statement unascertained sum of money.
(b) Where the relief claimed is under containing the particulars of the
valued and the plaintiff on being debt sought to be set-off. The (b) In case of legal set off cross
required by the court to correct the following are the essential demand may or may not arise from
valuation within a time to be fixed conditions of legal set off :- the same transaction but in
by the court fails to do so; (i) The suit must be for recovery of equitable set off, the cross demands
money : must arise out from the same
(c) Where the relief claimed is transaction.
properly valued, but the plaint is (ii) the amount claimed to be set off
returned upon paper insufficiently must be an ascertained sum of (c) In case of legal set off, the court
stamped and plaintiff, on being money ; is bound to entertain and adjudicate
required by court to supply the upon it because it has been provided
requisite stamp-paper within a time (iii) it must be legally recoverable in Order 8 Rule 6 of Code and can be
to be fixed by the court, fails to do from the plaintiff, i.e., it is not raised as of right while in case of
so; barred by time etc. equitable set off it is not obligatory
on the part of the court to
(d) Where the suit appears from the (iv) it must not exceed the pecuniary adjudicate upon it.
statement in the plaint to be barred limits of the jurisdiction of the court
by any law. ; (d) In a legal set off, the amount
claimed must be legally recoverable
(e) Where it is not filled in duplicate. (v) it must be recoverable by the and not barred by limitation at the
defendant or by all the defendants, date of suit but claim by way of
(f) Where the plaintiff fails to comply if there are more than one ; equitable set off can be allowed
with the provisions of rule- 9. even if it is based by limitation on
(vi) it must be recoverable by the date of suit where there is a
PROCEDURE ON REJECTION OF defendant from the plaintiff or all fiduciary relationship between
PLAINT (Rule-12) the plaintiffs, if there are more than plaintiff and defendant.
Where a plaint is rejected the judge one ;
shall record an order to that effect (e) For legal set off, court fee is to be
with the reasons for such order. (vii) both the parties must fill the paid but it is not to be paid in case of
Effect of rejection of plaint : Rule 13 same character as they fill in the equitable set off.
If the plaint is rejected on any of the plaintiff's suit.
above grounds, the plaintiff is not Q. 42 What do you understand by
thereby precluded from presenting a Equitable Set off Equitable set off "Set-Off" and "Counter Claim" ?
fresh plaint in respect of the same means a set-off of an ascertained What is the difference between the
cause of action. An order rejecting a sum of money arising out of cross two ?
Ans. SET -OFF (Order 8 Rule 6 C.P.C ) defence against plaintiff's action and court that (i) he has failed after using
A plea of set-off is 'a plea where by couter claim is substantially a cross his best endeavours to discover the
defendant acknowledges the justice action. residence of the defendant who has
of Plaintiff's demand but sets up (b) Set-off must be for ascertained not been served, or (ii) such
another demand of his own to sum or it must arise out of same defendant is avoiding of process or
counter claim that of plaintiff either transaction , a counter claim need (iii) there is any sufficient cause for
wholly or in part.' not to arise out of the same extending the time (Order IX Rule 5
Where in a suit for recovery of transaction. C.P.C.)
money by plaintiff, defendant finds (c) In case of Set-off the amount
that he has also a claim of some must be recoverable at the date of (d) The defendant appears and the
amount against the plaintiff, he can suit, while in case of counter claim plaintiff does not appear when the
claim a set-off in respect of said the amount must be recoverable at suit is called out for hearing unless
amount. the date of filling written statement. the defendant admits the claim or
A defendant may claim set-off, if (d) When defendant demands in a part thereof (Order IX Rule 8 C.P.C.).
following conditions are satisfied : plaintiff's suit an amount below or
(a) Suit must be for recovery of upto that of suit, it is Set-off but Q. 44 B was in occupation of a
money. when it is for larger amount, the house belonging to A. In March
claim for excess amount is counter 1981, A had filed suit for possession
(b) Sum of money must be claim. alleging that B was a trespasser in
ascertained. Q. 43 Discuss the provisions of Code the house. The suit was contested
of Civil Procedure relating to by B who pleaded that he had
(c) Such sum must be legally dismissal of suit for non- become the owner of the house by
recoverable . appearance of parties ? adverse possession. The suit was
Ans. Order IX of the Code of Civil fixed for hearing on 15th July, 1981,
(d) It must be recoverable by Procedure deals with the on which date B appeared in the
defendant from plaintiff. appearance of parties and court but A was unable to attend
consequences of non-appearance. and the suit was dismissed in
(e) It must not exceed the pecuniary Order IX Rule 1 of the Code of Civil default. On the 10th December
limits of the court in which the suit is Procedure provides that on the date 1981, B died leaving behind his
brought. fixed in the summons for the widow C. In January 1982, A
defendant to appear and answer, brought a suit against C alleging the
(f) Both the parties must fill in the parties shall be in attendance at she is in illegal possession of the
defendant's claim to set-off, the the court house in person or by their house and praying that a decree for
same character as they fill in respective pleaders, and the suit possession he passed against her.
plaintiff's suit. shall then be heard unless the Advise C if the suit is barred. Give
hearing is adjourned to a future day reasons.
COUNTER CLAIM : Counter claim fixed by the court. Ans. After having gone through the
may be defined as claim made by Dismissal of Suit ; The court may facts of case in hand following issue
defendant in the suit , against dismiss the suit on the date fixed for is framed:- Whether A's suit against
plaintiff. Thus counter claim is hearing if C (B's wife) is on the same cause of
substantially a cross action. In (a) the summons is not served upon action, as was A's earlier suit against
Laxami Das v. Nana Bhai, AIR 1964 the defendant in consequence of B which dismissed in default. Order
SC 11 Supreme Court. Held that right failure of the plaintiff to pay the 9 Rule 8 of C.P.C. provides that
to make counter claim as statutory court fee or postal charges, if any, where the defendant appears and
right and held that court has power chargeable for such service or to plaintiff does not appear and the
to treat the counter claim as cross present copies of the plaint or defendant does not admit the
suit and hear the original suit and concise statement as required by plaintiff's claim wholly or partly, the
counter claim together if counter Rule 9 of Order VII of the Code of court shall pass an order dismissing
claim is properly stamped. Vide Civil Procedure (Order IX Rule 2 the suit.
Amendment Act 1976 Rule 6-A to 6- C.P.C.) Order 9 Rule 9 C.P.C. then provide -
G were added in Order 8 C.P.C. Rule (1) Where a suit is wholly or partly
6-A(1) provides that defendant may (b) neither party appears when the dismissed under Rule-8 the plaintiff
set up by way of counter claim suit is called for hearing (Order IX shall be precluded from bringing a
against the claim of plaintiff any Rule 3 C.P.C.) fresh suit in respect of same cause
right or claim in respect of cause of of action. But he may apply for an
action occruing to defendant against (c) After a summons has been issued order to set the dismissal aside and
plaintiff either before or after filing to the defendant or to one of several if he satisfies the court that there
of suit but before the defendant has defendants, and returned unserved, was sufficient cause for his non-
delivered his defence or before the the plaintiff fails for a period of one appearance when the suit was called
time fixed for delivery of his defence month from the date of the return, on for hearing, the court shall make
has expired. to apply for the issue of a fresh an order setting aside the dismissal
SET-OFF and COUNTER CLAIM -- summons unless the plaintiff has upon such terms as to costs or
DISTINCTION (a) Set-off is statutory within the said period satisfied the otherwise as it thinks fit and shall
appoint a day for proceeding with defendant C is claiming her right to However on 27-5-89 defendant
the suit." adverse possession through her late (tenant) did not appear nor his
husband B and the necessary counsel appeared in court and thus
So in view of provisions of Order 9 conclusion is that the cause of action court proceeded ex-parte and after
Rule 9 second suit can not be in both the suits is same and thus recording plaintiff's evidence passed
brought when first has been present suit of A against C is barred ex- parte eviction decree against
dismissed under Rule 8, on same by Order 9 Rule 9 C.P.C. tenant on 27-5- 89. On that very day
cause of action. In the case in hand, Q. 45 In an eviction proceedings, i.e. 27-5- 89 tenant applied under
it is admitted fact that A's earlier suit 27-5-1989 was fixed for evidence of Rule 13 Order 9 for setting aside
against B was for possession on the landlord and 2-6-89 for evidence of above said ex-parte eviction decree
ground that B was trespasser. That tenant. On 27-5-89 neither tenant on the ground that he was ill and his
suit was dismissed under Order 9 nor his counsel appeared at counsel had forgotten to mention
Rule 8 as A could not appear in court hearing. The court recorded the case in his diary.
on 15th July 1981. So A is precluded evidence of landlord and passed ex- Rule 13 of Order 9 C.P.C. provides
from bring a suit again on same parte eviction order. Same day that if defendant satisfies the court
cause of action in view of Order 9 tenant applied for setting aside the that he was prevented by "sufficient
Rule 9. exparte order alleging that he was cause" from appearing on date of
The expression "Cause of Action" ill and his counsel had forgotten hearing of case, court will set aside
means all those facts which are mentioning the case in his diary. He decree passed against him. However
necessary for a plaintiff to prove in a filed his affidavit but did not file expression "sufficient cause" has not
suit to get judgment of court in his medical certificate and diary and been defined. Thus every case has to
favour or every one of those facts affidavit of counsel. The landlord be seen in light of peculiar facts of
which if not proved would give the rebutted his allegation on affidavit. case. Supreme Court recently in G.P.
defendant the right of judgment of Decide the application ? Srivastva v. R.K. Raizada AIR 2000 SC
court. In Mohd. Khallil Khan and Ans. Order 9 Rule 6 of Civil 1221 has held :-
Others v. Mehbub Ali Mian 75 I.A. Procedure Code provides regarding "Under Order 9 Rule 13 C.P.C., an
121 the Privy Council had observed:- ex-parte proceedings and lays down exparte decree passed against
"In considering whether the cause of that `Where plaintiff appears and defendant can be set aside upon the
action in subsequent suit is the same defendant does not appear the satisfaction of court that either
or not as the cause of action in plaintiff has to prove service of summons were not duly served
previous suit the tests to be applied summons on defendant. If service of upon defendant or he was
is: are the causes of action in two summons is proved, the court may prevented by "sufficient cause" from
suits in substance - not technically - proceed ex-parte against defendant appearing when suit was called for
identical." In case in hand plaintiff and may pass decree in favour of hearing. Words "was prevented by
`A' had filedthe earlier suit for plaintiff, if the plaintiff proves his sufficient cause from appearing"
possession of house against B, which case." must be liberally construed to
was dismissed in default. Thereafter So when defendant has not enable the court to do complete
A never filed any application for appeared on date of hearing of case, justice between parties. "Sufficient
setting aside the order of dismissal and plaintiff appears and proves the cause" for the purpose of O. 9 R. 13
of suit. Later B died leaving behind service of summons on defendant, CPC has to be construed as elastic
his widow `C'. A has again filed suit then court can proceed with the expression for which no hard and
against C for possession of that very case ex-parte and pass decree in fast Rule can be laid down."
house on the ground that he is favour of plaintiff, if he proves his
owner of suit property and widow C case. The defendant against whom Keeping in view above observations,
is trespasser therein. Such suit an ex-parte decree has been passed coming now to case in hand -
attracts Art. 65 of Limitation Act and has the following remedies:- Defendant has taken the plea that
onus is on C to establish that she (a) He can apply to court by which he was lying ill on date of hearing of
was in adverse possession of said such decree is passed to set it aside suit i.e. 27-5-89 for which he has
property. Now question is whether C (Order 9 Rule 13). filed Affidavit though has not
can take the same plea which B had produced any Medical Certificate to
taken in earlier, it is well established (b) Prefer appeal against such substantiate his plea and it is also
that the expression "the possession decree (Section 96(2)). pleaded that his counsel forgot to
of defendant" under Article 65 mention the case in Diary and
includes also the possession of (c) Apply for review (Order 47 and therefore his counsel could not
person from or through whom the Section 114). appear. To prove this fact, Affidavit
defendant derived his liability to be of counsel and diary is produced.
sued and as such defendant is (d) File suit on ground of fraud. Plaintiff by way of Affidavit has
entitled to take his possession with rebutted the plea taken by
that of his predecessor-in-interest That being the legal position, coming defendant.
for the purpose of computing the now to case in hand, it is admitted Considering the facts and keeping in
statutory period of limitation. that 27-5-89 was fixed for evidence view the observations of Supreme
Applying the aforesaid law to the of landlord and 2-6-89 was fixed for Court in this regard it can be said
facts of case in hand it is clear that recording evidence of tenant. that defendant had a "sufficient
cause" which prevented him from such allegations or facts as are made Kinds Of Discovery : Discovery is of
appearing in court on relevant date. in the plaint or in the written two kinds
We should not insist on strict proof statement, if any of the opposite (i) Discovery by interrogatories;
of fact of illness of defendant and party.
thus his application under Rule 13 of After the Amendment Act No. 46 of (ii) Discovery documents.
Order 9 C.P.C. deserves to be 1999 Rule 1A, 1-B and 1-C has been
accepted and ex-parte eviction added in Order X of Code. Rule-1A (i) Discovery By Interrogatories ;
decree should be set aside. says "After recording the admission Order XI Rule 1 of the Code of Civil
Q. 46 Plaintiff could not reach the and denials, the court direct the Procedure deals with discovery of
court on the date fixed, so his suit parties to suit to opt either mode of interrogatories and it provides that
was dismissed for default. Advise settlement outside the court as in any suit the plaintiff or defendant,
the plaintiff as to steps he should specified in sub-section (1) of by leave of the court, may deliver
take. Section 89. On the option of the interrogatories in writing for the
Ans. Order 9 Rule 8 C.P.C. provides : parties, the court shall fix the date of examination of the opposite parties
Where the defendant appears and appearance before such forum or or any one or more of such parties,
the plaintiff does not appear when authority as may be opted by the and such interrogatories when
the suit is called on for hearing, the parties" and Rule 1-B says that delivered shall have a note at the
court shall dismiss the suit, unless parties shall appear before such foot thereof stating which of such
the defendant admits the claim, or forum or authority. Rule 1-C says interrogatories each of such person
part thereof, in which case the court that if the presiding officer of is required to answer :
shall pass a decree accordingly. Conciliation forum or authority is Provided that no party shall deliver
Order 9 Rule 9 C.P.C. further provide satisfied that it would not be proper more than one set of interrogatories
: On such dismissal of the suit, the in interest of justice to proceed with to the same party without an order
plaintiff is precluded from bringing a the matter he shall refer the matter for that purpose :
fresh suit in respect of the same again to the court.
cause of action; but he may apply Rule 2 provides for oral examination Provided also that interrogatories
for an Order to set the order of of the parties to the suit with a view which do not relate to any matter in
dismissal aside. The court shall, after to elucidating matters in controversy question in the suit shall be deemed
issuing notice of the application to in the suit. The court thus, ascertains irrelevant, notwithstanding that they
the other side and on being satisfied with precision the propositions of might be admissible in the oral
that there was sufficient cause for law or fact on which the parties are cross-examination of a witness.
non-appearance, set aside the at variance and on such question
dismissal on payment of costs or on issues are required to be framed. Rule 2 of Order XI of the Code of
other terms as it thinks fit. Rule-3 then says that substance of Civil Procedure provides that on an
In Lakshmi Commercial Bank v. Hans the examination shall be reduced to application for leave to deliver
Raj AIR 1981 P&H 228 it was writting by judge, which shall form interrogatories, the particular
observed:- part of record. Then R-4 lays down interrogatories proposed to be
"In deciding whether a suit the consequence of refusal or delivered shall be submitted to the
dismissed for default be restored, inability of pleader to answer and court. In deciding upon such
what has really to be considered is provides that where pleader or any application, the court shall take into
whether the plaintiff was really person accompanying a pleader as account any offer, which may be
trying to appear on the day fixed. If referred to in Rule-2 refuses to or is made by the party sought to be
sufficient cause is shown by the unable to answer any material interrogated to deliver particulars,
plaintiff for his non- appearance question relating to suit which in or to make admissions, or to
court may restore the suit. What is opinion of court be answered by produce documents releating to the
"sufficient cause" depends upon party, court shall post-pone the matters in question, or any of them,
facts and circumstances of each case hearing of suit and direct such party and leave shall be given as to such
and liberal and generous to appear in person on such date as only of the interrogatories has been
construction should be adopted to fixed. laid down in Raj Narain v. Indira
advance the cause of justice and Q. 48 What do you understand by Gandhi, AIR 1972 SC 1302, it was
restoration should not ordinarily be `Discovery' what is its object and observed that interrogatories can be
denied." who can apply for it ? allowed whenever the answer to
Ans. Discovery Discovery means to them will serve either to prove the
Q. 47 What is the provision of compel the opposite party to case of party administering tthe
examination of the parties by the disclose what he has in his interrogatories or to destroy the
Court? possession. Order XI of Code Civil case of his adversary. The right is a
Ans. Order X of Code of Civil Procedure deals with discovery and valuable one and the party should
Procedure deals with the inspection. Discovery means to find not lightly be deprived of that right
examination of parties by the court. out material facts and documents and must be exercised liberally as to
Order 10 Rule-1 provides that the from an adversary in order to shorten litigation, save expenses and
court shall, at the first hearing the ascertain nature of the case and to serve the ends of justice.
suit, ascertain from each party or his narrow down the points in issue or Rule 6 of Order XI of the Code of
pleader whether he admits or denies to avoid proving admitted facts. Civil Procedure deals with the
objections to interrogatories. It the documents in his possession or from all or any of the following
provides that any objection to power, relating to any matter in materials :-
answer any interrogatory on the question in such suit, as the court (a) allegations made on oath by the
ground that it is scandalous or shall think right; and the court may parties, or by any person present on
irrelevant or not exhibited bonafide deal with such documents, when their behalf, or made by the
for the purpose of the suit, or that produced, in such manner as shall pleaders of such parties ;
the matters inquired into are not appear just.
sufficiently material at that stage, Q. 49 What is meant by "issue" and (b) allegations made in the pleadings
(or on the ground of privilege, of on how they are to be framed ? or in answers to interrogatories
any other ground) may be taken in Ans. Order 14 of the Code of Civil delivered in the suit ;
the affidavit in answer. According to Procedure deals with settlement of
Rule 8 of Order XI of the Code issues and determination of suit on (c) the contents of documents
interrogatories shall be answered by issues of law on issues agreed upon. produced by either party :
affidavit to be filed within 10 days or Rule 1 of Order of the Code of Civil
within such other time as the court Procedure provides that issues arise In addition to the said material the
may allow. when a material proposition of fact other material which may be
Discovery of documents ; Rules 12 to or law is affirmed by the one party considered in framing issues are the
14 of Order XI of the Code of Civil and denied by the other. Material answer to interrogatories
Procedure deal with the discovery of propositions are those propositions statements made by parties or their
documents. All documents relating of law or fact which a plaintiff must representatives, when examined
to the matters in issue in the allege in order to constitute his under Order X of the Code of Civil
possession or power of any defence. Such material proposition Procedure and examination of a
adversary can be inspected by affirmed by one party and denied by witness or any document ordered to
means of discovery of documents. the other shall form the subject of a be produce under Order XIV of the
Rule 12 of Order XI of the Code of distinct issue. Code of Civil Procedure. Rule 4 of
Civil Procedure provides that any According to sub-rule (4) of Rule 1 of order XIV of the Code of Civil
party may, without filing any Order 14 of the Code of Civil Procedure provides that where the
affidavit, apply to the court for an Procedure, issues are of two kinds :- Court is of opinion that the issues
order directing any other party to (a) issues of fact cannot be correctly framed without
any suit to make discovery on oath the examination of some person not
of the documents which are or have (b) issues of law before the Court or without the
been in his possession or power, inspection of some document not
relating to any matter in question Sub-rule (5) of Rule 1 of Order 14 of produced in the suit, it may adjourn
therein. On the hearing of such the Code of Civil Procedure further the framing of the issue to a future
application the court may either provides that at the first hearing of day, and may (subject to any law for
refuse or adjourn the same, if the suit, the court shall, after the time being in force) compel the
satisfied that such discovery is not reading the plaint and the written attendance of any person or the
necessary or not necessary at the statements, if any, and (after production of any document by the
stage of the suit, or make such examination under Rule 2 of Order X person in whose possession or
order, either generally or limited to and after hearing the parties or their power it is, by summons of other
certain classes of documents, as may pleaders) ascertain upon what process.
in its discretion to thought fit, material propositions of fact or of Q. 50 What is the effect of omission
provided that discovery shall not be law, the parties are at variance, and of framing an issue ? Whether a
ordered when and so far as the shall thereupon proceed to frame court is empowered to amend or
court shall be opinion that it is not and record those issues on which strike out an issue?
necessary either for disposing fairly the right decision of the case Ans. Omission to Frame Issue In
of the suit or for saving costs. appears to depend. Kewal Krishan v. Dina Nath, AIR 1993
Rule 13 of Order XI of the Code of In Sita Ram v. Radha Bai, AIR 1964 SC 881, it was observed that even
Civil Procedure provides that the SC 497, it was observed that "issues" though it is the duty of the court to
affidavit to be made by a party are the backbone of a suit. Framing frame proper issues, mere omission
against whom an order for making of issue has a very important bearing to frame an issue is not necessarily
discovery of documents is made by on the trial and decision of case. fatal to the suit. Omission to frame
the court shall specify which of the Firstly because it is issues framed an issue is an irregularity which may
documents therein mentioned he and not the pleadings that guide the or may not be a material one. If such
objects to produce and it shall be in parties in matter of leading omission affects the disposal of the
Form No. 5 in Appendix C, with such evidence. Secondly the court cannot suit on merits, the case must be
variations as circumstances may refuse to decide the point on which remanded to the trial court for a
require. It has further been provided issue has been framed. Thirdly court fresh trial. On the other hand, where
in Rule 14 of the said Order that it should not frame issue which does the parties went to trial with full
shall be lawful for the court, at any not arise in pleadings. knowledge that a particular point
time, during the pendency of any MATERIALS FOR FRAMING ISSUES was at issue, they have not been
suit, to order the production by any According to Order 14 Rule 3 of the prejudiced and substantial justice
party thereto, upon oath, of such of Code the court may frame the issues has been done, absence of an issue
is not fatal to the case so as to the court, the court may impose to the further progress of the suit,
vitiate the proceedings. upon him fine not exceeding Rs. 500, for which time has been allowed,
Power to amend and strike out issue having regard to his condition in life the court may, notwithstanding such
Rule 5 of order 14 of the Code of and the circumstances of the case default -
Civil Procedure deals with this power and attach and sell his property for (a) if the parties are present,
of the court. It provides that the the recovery of the same. (Order 16, proceed to decide the suit forthwith;
Court may, at any time before Rules 11 and 12). or
passing a decree, amend the issue or Consequence of refusal of party to
frame additional issues on such give evidence - Where any party to a (b) if the parties are, or any of them
terms as it thinks fit, and all such suit present in court refuses, without is absent, proceed under Rule 2.
amendment or additional issues as lawful excuse, when required by the
may be necessary for determining Court, to give evidence or to The main distinction between rule 2
the matters in controversy between produce any document, then and and 3 of Order XVII of the Civil
the parties shall be so made or there in his possession or power, the Procedure Code is that a decree
framed. court may pronounce judgment passed against the defendant under
The court may also, at any time against him or make such order in Rule 3 will not be an exparte decree
before passing a decree, strike out relation to the suit as it thinks fit. which can be set aside under Order
any issues that appear to it to be (Order 16, Rule 20) IX Rule 13 of the said Code while a
wrongly framed or introduced. Q. 52 When can adjournment be decree passed under Rule 2 can be
Q. 51 Is there any penalty in case of granted by court and what are the set aside under Order IX rule 13 of
default of attendance of witness on consequences of failure of a party the Code if the necessary
the issue of summons ? to produce evidence for which an requirements are fulfilled.
What are the consequences of adjournment was granted by court Q. 53 Who has the right to begin
refusal of a party to give evidence ? ? the evidence at the hearing of the
Ans. The court has power to enforce Ans. Order 17 Rule 1(i) of Code of suit ? Discuss the important
the attendance of any person to Civil Procedure provides that court amendment brought about in Order
whom a summons has been issued may, if sufficient cause is shown, at 18 of Code, in this regard.
and for that purpose may - any stage of the suit, grant time to Ans. Order 18 of Code of Civil
(a) issue a warrant, with or without the parties or to any of them and Procedure deals with hearing and
bail, for his arrest; may from time to time adjourn the examination of witnesses. Order 18
hearing of the suit for reasons to be Rule 1 of Code says that "The
(b) attach and sell his property; recorded in writting. plaintiff has right to begin unless the
Vide Amendment Act No. 46 of 1999 defendant admits the facts alleged
(c) impose a fine upon him not a proviso is attached to Rule 1(i) by the defendant and contends that
exceeding Rs. 500; or which says - either in point of law or on some
"No such adjournment shall be additional facts alleged by the
(d) order him to furnish security for granted more than three times to a defendant, the plaintiff is not
his appearance and in default party during hearing of the suit." entitled to any part of the relief
commit him to civil prison. which be seeks, in which case the
So right of adjournment on showing defendant has the right to begin."
The court may, where a person to sufficient cause has been limit to It has further been provided in Rule
whom summons has been issued three times, so that suit may be 2 of Order XVIII of the Code of Civil
fails to comply with it, without dispossed off expeditiously and no Procedure that on the date fixed for
lawful excuse, issue a proclamation party to suit should seek the hearing of the suit or on any
requiring him to attend at a time adjournment as a delaying tactic. other day to which the hearing is
and place named therein before Sub-rule (2) of Rule 1 of Order 17 of adjourned, the party having the right
inflicting the penalities mentioned the Code of Civil Procedure further to begin shall state his case and
above. provides that in every such case the produce his evidence in support of
No court of small causes shall, court shall fix a day for the further the issues which he is bound to
however, make an order for the hearing of the suit; and may make prove. The other party shall then
attachment of immovable property. such order as it thinks fit with state his case and his evidence, if
(Order 16, Rule 10) respect to the costs occasioned by any, and any then address the court
Where the person appears after the the adjournment. generally on the whole case and the
attachment of his property and Order 17 Rule 3 of the Code of Civil party beginning may then reply
satisfies the court that he did not fail Procedure deals with the power of generally on the whole case.
to comply with the summons the court to proceed with the case, Sub-rule (4) of Rule 2 of Order 18 of
without lawful excuse or did not notwithstanding either party fails to the Code of Civil Procedure, which
intentionally avoid service, or that produce evidence. It provides that has been inserted by the
he had no notice of the where any party to a suit to whom Amendment Act No. 104 of 1976,
proclamation, the court may release time has been granted fails to provides that notwithstanding
the property from attachment. produce his evidence, or to cause anything contained in this rule, the
If the person, however, does not the attendance of his witnesses, or court may, for reasons to be
appear or appears but fails to satisfy to perform any other act necessary
recorded, direct or permit any party Provided that where the judgment is which court intended to do but the
to examine any witness at any stage. not pronounced at once, every same was accidently slipped or any
Rule-4 of Order 18 has been endeavour shall be made by the mistake creeps in due to clerical or
amended vide Amendment Act of Court to pronounce the judgment arithmetical mistake, it would only
2002. Rule-4(i) of Order 18 says "In within thirty days from the date on advance the end of justice to enable
every case the examination-in-chief which the hearing of the case was to rectify such mistake. But before
of a witness shall be on affidavit and concluded but, where it is not exercise of such power the court
copies thereof shall be supplied to practicable so to do on the ground must be legally satisfied, that court
the opposite party, by the party who of the exceptional and extraordinary must have in its mind that Decree or
calls him for evidence; circumstances of the case, the Court Order should be passed in particular
Provided that where documents are shall fix a future day for the manner but that intention is not
filled and the parties rely upon the pronouncement of the judgment, translated into the Decree or Order
documents, the proof and and such day shall not ordinarily be due to clerical, arithmetical error or
admissibility of such documents a day beyond sixty days from the accidental slip."
which are filled along with affidavit date on which the hearing of the
shall be subject to the order of the case was concluded and due notice CONTENTS OF JUDGEMENT Order
court." of the day so fixed shall be given to Rule 4 of the Code of Civil Procedure
the parties or their pleaders". deals with the contents of the
So in order to expedite the trial of judgment also. Sub-rule (2) of Rule 4
suit, provision for furnishing So maximum time limit for of Order, 20 of the Code of Civil
examination-in-chief of witnesses on pronouncing the judgment after Procedure provides that judgments
affidavit has been made. Rule 4(2) hearing of the case is 60 days. Rule of courts, other than Small Cause
says : The evidence (cross- 1(2) of Order 20 says where a Court, shall contain -
examination and re-examination) of written judgment is to be (a) a concise statement of the case,
the witness in attendance, whose pronounced, it shall be sufficient if
evidence (examination-in-chief) by the findings of the court on each (b) the points for determination,
affidavit has been furnished to the issue and final orders passed in the
court, shall be taken either by the case are read out and it shall not be (c) the decision thereon and
court or by the commission necessary for the court to read out
appointed by it : whole judgement. (d) the reasons for the decision.
Provided that the court may, while When Judgement may be Altered or
appointing a commission under this Modified Sub-rule (1) of Rule 4 of Order 20 of
sub- rule, consider taking into Order 20 Rule 3 of C.P.C. provides - the Code of Civil Procedure also
account such relevant factors as it "The judgment shall be dated and provides that judgments of a Court
thinks fit." signed by the in open court at the of Small Causes shall not contain
time of pronouncing it and when more than the points for
Q. 54 What is a judgment once signed, shall not after wards be determination and the decision
pronounced and when it may be altered or added, save - thereon.
altered or modified ? What are its Rule 5 of the said Order also
contents ? Is there any time limit (a) to correct clerical or arithmetical provides that in suits in which issues
for pronouncing judgment ? mistakes or error due to accidental have been framed, the court shall
Ans. Section 33 of Code of Civil slips or omission (Section 152 C.P.C.) state its finding or decision with the
Procedure provides that the court, reasons therefor, upon each
after the case has been heard shall (b) On Review (Section 114 C.P.C.) separate issue, unless the finding,
pronounce judgment and on such upon any one or more of the issues,
judgment a decree shall follow. So any alteration or addition in is sufficient for the decision of the
Order 20 of Code of Civil Procedure judgment is permissible so long as it suit.
deals with Judgment and Decree. is not signed by the Judge in open Rule 5-A of the said Order which has
Vide Amendment Act No. 22 of 2002 court, once it is signed no alteration been inserted by Amendment Act
in Rule 1 of Order 20, Sub-rule (1) or addition can be done except to No. 104 of 1976, also lays down that
has been amended in following correct clerical or arithmetical except where both the parties are
words. mistakes or accidental slips as represented by pleaders, the court
"(1) The Court, after the case has contemplated under section 152 of shall, when it pronounces its
been heard, shall pronounce Code or upon Review judgment in a case subject to
judgment in an open Court, either at Recently In Jaya Laxami Coelho v. appeal, inform the parties present in
once, or as soon thereafter as may Oswald Josph Coelho, AIR 2001 SC court as to the court to which an
be practicable and when the 1084 Supreme Court observed : appeal lies and the period of
judgment is to be pronounced on "In terms of Section 152 C.P.C. any limitation for the filling of such
some future day, the Court shall fix a error occurred in the decree on appeal and place on record the
day for that purpose, of which due account of airthmetical or clerical information so given to the parties.
notice shall be given to the parties error or accidental slip may be Rule 6-A (1) of the said Order also
or their pleaders : rectified by court..........In a matter lays down that the last paragraph of
where it is clear that something the judgment shall state in precise
terms the relief which has been of records, producing witnesses and party failing to pay costs as directed
granted by such judgment. obtaining copies. by the court. If however the party is
Q. 55 What are the provisions of (3) Compensatory costs : Section 35- unable to pay costs due to
Code of Civil Procedure relating to A unavoidable circumstances such as
Cost ? (a) Object. - Section 35-A provides strike of advocates or staff, etc.,
Ans. Question of imposing costs in for compensatory costs. This section court can extend the time.
Civil proceeding is entirely on the is an exception to the general rule Q. 56 When do the execution
discretion of the court. Rules as to on which Section 35 is based; viz. proceeding begin and is the notice
costs is subject to provisions of Code that the "costs are only an for execution necessary ? If so,
of Civil Procedure. indemnity, and never more than when ?
KINDS OF COSTS The Code of Civil indemnity". This section is intended Ans. Execution :- Term `Execution'
Procedure provides for four kinds of to deal with those cases in which has not been defined in Code of Civil
costs: Section 35 does not afford sufficient Procedure. However expression
(1) General costs - Section 35 ; compensation in the opinion of the "Execution" means enforcement of
court. Under this provision, if the decrees and orders by the process of
(2) Miscellaneous costs - Order 20-A court is satisfied that the litigation the court, so as to enable the decree
; was inspired by vexatious motive holder to realise the fruits of the
and altogether groundless, it can decree. Section 38 of Code says "A
(3) Compensatory costs for false or take deterrent action. This section decree may be executed either by
vexatious claims or defences - applies only to suits and not to the court which passed it or by the
Section 35-A ; and appeals or to revisions. court to which it is sent for
(b) Conditions. - The following execution. Section 37 defines the
(4) Costs for causing delay - Section conditions must exist before this expression" court which passed the
35-B. section can be applied : decree". Section 37 has given widest
(1) the claim or defence must be possible defination of above said
(1) General costs : Section 35 false or vexatious ; expression to facilitate the decree
(a) Object. - Section 35 deals with holder to realise the fruits of decree
general costs. The object in (2) objections must have been taken passed in his favour. As per Section
awarding costs to a litigant is to by the other party that the claim or 37 following courts fall within the
secure to him the expenses incurred defence was false or vexatious to expression "Court which passed the
by him in the litigation. It neither the knowledge of the party raising it decree" :-
enables the successful party to make ; and (i) Court of first instance by which
any profit out of it nor punishes the decree is actually passed;
opposite party. (3) such claim must have been
(b) Principles. - The primary rules in disallowed or withdrawn or (ii) The court of first instance in the
respect of award of general costs are abandoned in whole or in part. case of decree passed by appellate
as under : court;
(i) Costs are in the discretion of the The maximum amount that can be
court. The said discretion, however, awarded by the court is Rs 3000. (iii) Where the court of first instance
must be exercised on sound legal has ceased to exist the court which
principles. (4) Costs of causing delay : Section would have jurisdiction to try the
35-B suit at the time of execution;
(ii) Normally, costs should follow the
event and the successful party is Section 35-B is added by the The execution proceedings can be
entitled to costs unless there are Amendment Act of 1976. It is started only after the delivery of
good grounds for depriving him of inserted to put check upon the judgment by the court and
that right. Even a successful party delaying tactics of the litigating preparation of the decree. All
may be deprived of the costs if he is parties. It empowers the court to proceedings in execution are started
guilty of misconduct or there are impose compensatory costs on the by an application for execution
other reasons to do so. Sub-section parties who are responsible for which can be oral or written, as the
(2) of Section 34, however, expressly causing delay at any stage of the case may be.
provides that when the court orders litigation. Such costs would be Rules 10 and 11 of Order XXI of the
that costs should not follow the irrespective of the ultimate outcome Code of Civil Procedure deal with
event, it must record reasons for of the litigation. The payment of the applications for execution. Rule
doing so. costs has been a condition 10 provides that where the holder of
precedent for further prosecution of a decree desires to execute it, he
(2) Miscellaneous costs : Order 20-A the suit, if the party concerned is a shall apply to the court which passed
Order 20-A makes specific provision plaintiff and the defence, if he is a the decree or to the officer (if any)
with regard to the power of the defendant. The provisions of this appointed in this behalf, or if the
court to award costs in respect of section are mandatory in nature decree has been sent under the
certain expenses incurred in giving and, therefore, the court should not provisions herein before contained
notices, typing charges, inspection allow prosecution of suit or defence, to another court, then, to such court
as the case may be, in the event of or to the proper officer thereof.
Rule 11(1) of the said Order deals under the provisions of Section 44-A representative of a party, such
with the oral application for of the Code of Civil Procedure; question shall, for the purpose of
execution and it lays down that this Section be determined by the
where a decree is for the payment of (iii) Where an application for court.
money, the court may, on the oral execution is made against the
application of the decree-holder at assignee or receiver in insolvency Explanation I - For the purposes of
the time of the passing of the where the party to the decree has this Section , a plaintiff whose suit
decree, order immediate execution been adjudged to be an insolventy. has been dismissed and a defendant
thereof by the arrest of the against whom a suit has been
judgment debtor, prior to the Show cause notice can also be dismissed are parties to the suit.
preparation of a warrant, if he is issued by the Court if the execution Explanation II - (a) For the purposes
within the precincts of the court. has been sought by arrest and of this Section , a purchaser of
Then Sub-rule (2) to Rule 11 of Order detention of the judgment-debtor in property at a sale in execution of a
21 of Code says that save as view of the provisions of Order XXI decree shall be deemed to be a
otherwise provided by sub-rule (1), Rule 37 of the Code of Civil party to the suit in which the decree
every application for the execution Procedure. is passed; and
of a decree shall be in writting Q. 57 Comment on the statement Explanation II (b) all questions
signed and verified by the applicant that an execution court cannot go relating to the delivery of possession
and shall contain particulars as behind the decree. of such property to such purchaser
provided in sub-rule (2) Ans. Term `Execution' has not been or his representative shall be
Rules 11-A to 13 of Order 13 deal defined in C.P.C. Execution is deemed to be questions relating to
with certain specific applications for enforcement of decree and order by the execution, discharge or
execution. Rule 11-A provides that process of the court, so as to enable satisfaction of the decree within the
where an application is made for the decree holder to realise the meaning of this Section .
arrest and detention of judgment fruits of decree. Section 38 of C.P.C. The underlying object of this
debtor, it shall state, or be lays down that a decree may be provision is to provide cheap and
accompanied by an affidavit, stating executed either by the court which expeditious remedy for
the grounds on which arrest is passed it or by court to which it is determination of certain questions
applied for. Rule 12 deals with sent for execution. Section 37 define in execution proceedings without
application for attachment of the expression "court which passed recourse to a separate suit and to
moveable properties not in a decree" and enlarge the scope of prevent needless and unnecessary
possession of judgment debtor, expression "court which passed a litigation.So the executing court can
which require decree holder to decree" so as to facilitate the decree go into all question between the
attach with application, an inventory holder to realise the fruits of decree parties relating to execution,
of property and their accurate passed in his favour. discharge or satisfaction of decree
descriptions Rule-13 of Code then One of the most important Rule and as such court has no power to
deals with application for regarding the "Execution" is that: It amend, modify or substitute a
attachment of immovable properties must take the decree as it stands decree or in other words can not go
belonging to judgment debtor and it and execute according to its terms. behind the decree.
also requires that application shall It has no power to vary or modify Although An executing court cannot
contain full description of property the terms. It has no power to go behind the decree nor can it
with boundaries etc. for proper question its legality or correctness, question its legality or correctness.
identification and also proof of no inquiry into its regularity or But there is one exception to this
judgment debtor's ownership or his correctness can be permitted in such general Rule and that is that where
share in it. a proceeding. Section 47 of CPC is the decree sought to be executed is
Notice of execution Notice is not to important provision in this regard nullity for the lack of inherent
be issued to the party against whom which lays down as to which jurisdiction in court passing it its
execution application is filed in every questions are to be determined by invalidity can be set up in an
case but only in certain cases court executing the decree. It execution proceeding. The executing
mentioned in Rule 22 of Order XXI of provides : Court can therefore entertain an
the Code of Civil Procedure. "(1) All questions arising between objection that the decree is nullity
According to it, show cause notice is the parties to the suit in which the and can refuse to execute the
to be issued in the following cases :- decree was passed or their decree.
(i) Where an application for representatives and relating to In Kiran Singh v. Chaman Paswan,
execution is made more than two execution, discharge or satisfaction AIR 1954 SC 340,it was observed: It
years after the date of decree; of decree shall be determined by is a fundamental principle well
court executing the decree not by a established that a decree passed by
(ii) Where an application for separate suit. a court without jurisdiction is a
execution is made against the legal nullity, and that is invalidity could be
representative of a party to the (2) (* * * *) set up whenever and wherever it is
decree or where an application is sought to be enforced or relied upon
made for execution of a decree filed (3) Where a question arises as to even at the stage of execution and
whether any person is or is not even in collateral proceedings.
Q. 58 What is the effect of a decree by the court executing the decree did not come in B's estate. In the
passed in favour of a dead person ? and not by a separate suit. execution of decree passed against
Ans. Decree passed in favour of a B, share of C was not liable for
dead person. - Where the court (2) * * * satisfaction of said decree. It is also
proceeds with the case in ignorance important that suit filed by D for
of the fact of death of a person and (3) Where a question arises as to recovery of advanced by him,
passes a decree, that decree cannot whether any person is or is not the against B, C was not party in that
be treated as a nullity. It may, no representative of a party, such suit. Therefore, none of the above
doubt, be a wrong decree, but it will question shall, for the purposes of said conditions apply for application
have to be set aside by taking this Section, be determined by the of Section 47 C.P.C. Therefore suit of
appropriate proceedings like appeal, court. C is not barred by Section 47.
revision or review. Generally Q. 60 When can a decree holder
speaking, a decree passed in favour Explanation I - For the purposes of apply to get the decree transferred
of a dead person is not a nullity, this Section, a plaintiff whose suit to another court for execution ?
though a decree passed against a has been dismissed and a defendant Ans. Transfer of the decree - Section
dead person can be construed as a against whom a suit has been 39 of the Code of Civil Procedure
nullity. Even if there is abatement of dismissed are parties to the suit. deals with the transfer of decree. It
the suit, that would not make the Explanation II (a) For the purposes of provides that the Court which
decree passed in the suit as one this Section, a purchaser of property passed the decree may, on the
without jurisdiction and the at a sale in execution of a decree application of the decree holder,
executing court is not entitled to shall be deemed to be a party to the send it for execution to another
refuse to execute the decree on the suit in which the decree is passed; court of competent jurisdiction -
ground that the plaintiff was not and (a) if the person against whom the
alive on the date when the decree Explanation II(b) all questions decree is passed actually and
was passed in his favour. relating to the delivery of possession voluntarily resides or carries on
Q. 59 A is survived by his widow, of such property to such purchaser business, or personally works for
daughter, sister and four brothers. or his representative shall be gain, within the local limits of the
On a partition suit filed by B, one of deemed to be questions relating to jurisdiction of such other court, or
the brothers of deceased A, the the execution, discharge or
disputed property fell to the share satisfaction of the decree within the (b) if such person has no property
of C, the daughter of A. During the meaning of this Section . within the local limits of the
pendency of partition suit filed by The underlying object of this jurisdiction of the court which
B, B was appointed receiver of provision is to provide cheap and passed the decree, sufficient to
entire estate of A. In this capacity B expeditious remedy for satisfy such decree and has property
inducted D as a tenant and took determination of certain questions within the local limits of the
some advance from D but the in execution proceedings without jurisdiction of such other court, or
possession of whole of leased recourse to a separate suit and to
premises was not given to D. So D prevent needless and unnecessary (c) if the decree directs the sale or
filed suit against B for recovery of litigation. delivery of immovable property
amount of advance. This suit was In order that this Section may apply, situate outside the local limits of the
decreed against B and his estate. In the following conditions must be jurisdiction of the court which
execution of this decree D satisfied - passed it, or
purchased the suit land belonging (i) the question must be one arising
to C in auction and then transferred between the parties to the suit in (d) if the court which passed the
it to some other persons without which the deree is passed, or their decree considers for any other
any notice to B. representatives; and reason, which it shall record in
C filed suit for recovery of writing, that the decree should be
possession of her land. Suit was (ii) it must relate to the execution, executed by such other court.
resisted by D and his transferee on discharge or satisfaction of the
the ground inter-alia that same is decree. The Court which passed a decree,
barred by Section 47 C.P.C. decide may of its own motion send it for
whether the bar created by Section In the case in hand, during pendency execution to any subordinate court
47 C.P.C. will apply to suit filed by of partition suit, B was appointed as of competent jurisdiction.
C. receiver of estate of A and in that For the purposes of this section, a
Ans. Section 47 of the Code reads as capacity B inducted D as tenant to court shall be deemed to be a court
under: suit land which fell in the share of C. of competent jurisdiction if, at the
(1) All questions arising between the B had taken advance from D, when time of making the application for
parties to the suit in which the D could not get the possession of the transfer of decree to it, such
decree was passed, or their leased property. D filed suit against court would have jurisdiction to try
representatives, and relating to the B which was decreed against B and the suit in which such decree was
execution, discharge or satisfaction his estate and not against the estate passed.
of the decree, shall be determined of A, therefore suit property which Powers of the Court to which a
had fell in share of C (A's daughter) decree is transferred for execution
Section 42 of the Code of Civil which the State Government may committed to the civil prison.
Procedure deals with the powers of appoint for the detention of persons Provided that such notice shall not
transferee court. It provides that the ordered by the courts of such district be necessary if the court is satisfied
court executing a decree sent to it to be detained, except that : by affidavit, or otherwise, that with
shall have the same powers in Procedure the object or effect of delaying the
executing such decree as if it had (i) for the purposes of making an execution of the decree, the
been passed by itself. All persons arrest under this section, no judgment debtor is likely to abscond
disobeying or obstructing the decree dwelling house shall be entered or leave the local limits of the
shall be punishable by such court in after sunset and before sunrise; jurisdiction of the court.
the same manner as if it had passed Sub-section (2) Rule 37 lays down
the decree. Section 42(2) of Code (ii) no outer door of a dwelling that where appearance is not made
says powers of transferee court shall house shall be broken open unless in obedience to the notice, the court
include the following powers of the such dwelling house is in the shall, if the decree holder so
court which passed the decree, occupancy of the judgment debtor requires, issue a warrant for the
namely :- and he refuses, or in any way arrest of the judgment debtor.
(a) Power to send decree for prevents access thereto, but when Sub-section (3) of section 55 of the
execution to another court under the officer authorised to make the Code of Civil Procedure also lays
section 39 arrest has duly gained access to any down that where a judgment debtor
dwelling house, he may break open is arrested in execution of a decree
(b) Power to execute the decree the door of any room in which he for the payment of money and
against the legal representative of has reason to believe the judgment brought before the court, the court
the deceased judgment debtor debtor is to be found : shall inform him that he may apply
under section 50 to be declared an insolvent, and that
(iii) if the room is in the actual he may be discharged if he has not
(c) Power to order attachment of a occupancy of a woman who is not committed any act of bad faith
decree the judgment-detor and who, regarding the subject of the
according to the customs of the application and if he complies with
According to Section 42(4) of Code, country, does not appear in public, the provisions of the law of
transferee court cannot exercise the the officer authorised to make the insolvency for the time being in
following power :- arrest shall give notice to her that force.
(a) Power to order execution at the she is at liberty to withdraw, and, Section 56 of the Code of Civil
instance of the transferee of the after allowing a reasonable time for Procedure provides that a woman
decree her to withdraw and giving her shall not be arrested in execution of
reasonable facility for withdrawing, decree in payment of money.
(b) in the case of decree passed may enter the room for the purpose Section 57 of the Code of Civil
against a firm, power to grant leave of making the arrest. Procedure deals with the
to execute such decree against any subsistence allowance payable by
person other that such a person as is (iv) where the decree in execution of the decree holder for the
referred to in clause (b) or (c) of sub- which a judgment debtor is arrested, subsistence of the judgment debtor.
rule (1) of Rule 50 of Order 21. is a decree of the payment of money According to it, the State
and the judgment debtor pays the Government may fix scales
Q. 61 Discuss the provisions relating amount of the decree and the costs graduated according to rank, race
to arrest and detention in civil of the arrest to the officer arresting and nationality of such monthly
prison in execution of a decree. him, such officer shall at once allowance.
Ans. Arrest and detention in release him. Period of Detention Section 58 of
execution of a decree - One of the the Code of Civil Procedure deals
modes of executing decrees is arrest Order XXI Rule 37 of the Code of with the period of detention.
and detention in civil prison of the Civil Procedure deals with the According to it every person
judgment-debtor. Sections 55 to 59 discretionary power of the court to detained in the civil prison in
and Rules 37 to 41 of Order 21 deal issue Show Cause Notice to the execution of a decree shall be so
with arrest and detention of the judgment debtor against detention detained -
judgment-debtor in civil prison. in prison. It provides that where an (a) where the decree is for the
Section 55 provides that a judgment application is for the execution of a payment of a sum of money
debtor may be arrested in execution decree for the payment of money by exceeding one thousand rupees, for
of a decree at any hour and on any the arrest and detention in the civil a period not exceeding three
day, and shall, as soon as prison of a judgment debtor who is months, and
practicable, be brought before the liable to be arrested in pursuance of
court, and his detention may be in the application, the Court shall, (b) where the decree is for the
the civil prison of the district in instead of issuing a warrant for his payment of a sum of money
which the court ordering the arrest, issue a notice calling upon exceeding five hundred rupees, but
detention is situate, or where such him to appear before the court on a not exceeding one thousand rupees,
civil prison does not afford suitable day to be specified in the notice and for a period not exceeding six weeks.
accommodation in any other place show cause why he should not be
How Released so much thereof as may be sufficient amount shall, subject to the
Provided that he shall be released to satisfy the decree and costs of provisions of Section 60, be withheld
from such detention before the execution, or to appear and show from such salary or allowances
expiration of the said period of cause why he should not do so. either in one payment or by monthly
detention - Where the garnishee pays in the instalments as the court may direct,
court the amount due from him to and upon notice of the order to such
(i) On the amount mentioned in the the judgment-debtor or so much disbursing officer, such disbursing
warrant for his detention being paid thereof as is sufficient to satisfy the officer shall remit to the court the
to the officer incharge of the civil decree and the costs of the amount due under the order, or the
prison or execution, the court may direct that monthly instalments, as the case
the amount may be paid to the may be.
(ii) On the decree against him being decree-holder towards satisfaction Q. 64 What remedy is available to a
otherwise fully satisfied or of the decree and costs of the person whose land has been
execution. (Order 21, Rule 46-A). wrongfully attached in the execution
(iii) On the request of person on Where the garnishee does not of a decree ?
whose application he has been so forthwith pay into court the amount Ans. Order 21 Rule 58 provides that
detained or due from him to the judgment- where any claim is preferred to, or
debtor or so much thereof as is any objection is made to the
(iv) On omission to pay subsistence sufficient to satisfy the decree and attachment of, any property
allowance by person on whose the costs of execution, and does not attached in execution of a decree on
application he was so detained appear and show cause in answer to the ground that such property is not
the notice the court may order the liable to attachment, the court shall
Provided also that he shall not be garnishee to comply with the terms proceed to adjudicate upon the
released from such detention under of such notice, and on such order, claim or objection in accordance
clause (ii) or (iii) without the order of execution may issue as though such with the provisions herein
the court. order were a decree against him. contained:
(Order 21, Rule 46-B). Provided that no such claim or
Q. 62 What is a "Garnishee Order" Where the garnishee disputes objection shall be entertained -
and how is it enforced ? liability, the court may order that
Ans. Garnishee is a person who is any issue or question necessary for (a) where, before the claim is
liable either to pay debt to a the determination of liability shall be preferred or objection is made, the
judgment-debtor or account for any tried as if it were an issue in a suit, property attached has already been
movable property not in the and upon the determination of such sold; or
possession of the judgment-debtor. issue shall make such order or
The Garnishee Order is an order orders as it deems fit. (Order 21, (b) where the court considers that
issued to such a person not to pay Rule 46-C). the claim or objection was
back to the judgement debtor but to Q. 63 Explain the law relating to designedly or unnecessarily delayed.
the Court. The debt must be one attachment of salary or allowances [Order 21, Rule 58(1)].
other than a debt secured by a of servant of Government or
mortgage, a charge, a negotiable railway company or local authority. All questions (including questions
instrument, or a debt recovered only Ans. Attachment of salary of public relating to right, title or interest in
in a revenue court. officer, etc. - Accordint to Order 21 the property attached) arising
A garnishee order is an order which Rule 48 the court can order that the between the parties to a proceeding
a court is authorised to make against amount which not liable to or their representatives under Rule
a garnishee-judgment debtor' attachment and sale in execution of 58 and relevant to the adjudication
requiring him to pay or deliver in a decree as per section 60 of CPC, be of the claim or objection, shall be
court the amount due from or the withheld from such salary or determined by the court dealing
property deliverable by him to the allowances either in one payment or with the claim or objection and not
judgment-debtor or so much as may by monthly instalments. The officer by a separate suit. [Order 21, Rule
be sufficient to satisfy the decree or the person whose duty is to 58(2)].
and the cost of execution. disburse shall then withhold and Upon the determination of the
The Court may in the case of debt remit to the court the amount due questions referred to in Sub-rule (2),
(other than a debt secured by a under the order or the monthly the court shall, in accordance with
mortgage or a charge) which has instalment, as the case may be. such determination, - (a) allow the
been attached under Rule 46 (Section 60, Order 21 and Rule 48). claim or objection and release the
(attachment of a debt, share and Attachment of salary of private property from attachment either
other property not in possession of employees. - Order 21, Rule 48-A of wholly or to such extent as it thinks
the judgment-debtor), upon the the Code of CPC provides that where fit; or (b) disallow the claim or
application of the attaching creditor, th property to be attached is the objection; or (c) continue the
issue notice to the garnishee liable salary or allowances of an employee attachment subject to any
to pay such debt, calling upon him to whom Rule 48 applies, is within mortgage, charge or other interest
either to pay into court the debt due the local limits of the court's in favour of any person; or (d) pass
from him to the judgment-debtor or jurisdiction, may order that the such order as in the circumstances
of the case it deems fit. [Order 21, defendant shall not cause the suit to Rule 4(4) of Order 22 however
Rule 58(3)]. abate if the right to sue survives. provide that court, whenever it think
Where a claim or an objection is In Krishana Singh v. Mathura Ahir fits exempt the plaintiff from the
preferred and the court, under the AIR 1980 SC 707, it was observed necessity of substituting the legal
proviso to Sub-rule (1), refuses to "When a party to a suit dies the first representatives of any such
entertain it, the party against whom question to be decided is whether defendant who has failed to file
such order is made may institute a the right to sue survives or not ? If it written statement or who having
suit to establish the right which he does not, there is an end of the suit, filed it, has failed to appear and
claims to the property in dispute; if it does, the suit will not abate... contest the suit at the hearing and
but, subject to the result of such The Expression "Right to sue "may the judgment may in such case be
suit, if any, an order so refusing to be interpreted to mean Right to seek pronounced against said defendant
entertain the claim or objection shall relief, general rule is that all rights of notwithstanding the death of such
be conclusive. [Order 21, Rule action and all demands whatsoever defendant and shall have same
58(5)]. existing in favour of or against a effect and force as if it has been
In Canara Bank v. Gurmukh Singh person at the time of his death pronounced before his death.
AIR 2000 Del. 48, it was observed: survive to or against his Rule 4(5) says where the plaintiff
"......... After the introduction of representatives." was ignorant of death of defendant
Amendment Act in 1976 Order 21 and could not for that reason make
contemplates an adjudictaion . It is Rules 1 to 6 of Order 22 provide as an application for substitution of
now necessary that objection filed to consequences, in case of death of legal representative of such
under Order 21 Rule 58 should not party to suit. Rule 2 says `where defendant within the prescribed
be disposed of summarily. Wherever there are more plaintiffs or period and the suit is abated,
objection are filed under these defendants than one and any of plaintiff may make an application for
provisions , these must be heard and them dies and where the right to sue setting aside such abatement and in
disposed of by a procedure akin to survives to the surviving plaintiff or considering the said application the
that which obtains the disposal of a plaintiffs alone or against the court shall have due regard to the
suit ......... It is open to a party to surviving defendant or defendants fact of such ignorance of plaintiff.
adduce evidence to prove his claim alone, the Court shall cause an entry In Dhurandhar Prasad v. Jai Parkash
and there is nothing in the Section to that effect, to be made on record University and other, AIR 2001 SC
to make the court to adopt summary and suit shall proceed at the 2552, it was observed by Supreme
procedure when dealing with an instance of surviving plaintiff(s) or Court that Order 22 Rules 3 and 4
application under order 21 Rule 58. against surviving defendant(s) as the prescribe procedure in case of
Sub-section (4) to Rule 58 makes it case may be. Rule 3 says where one devolution of interest on death of
clear that order under this provision of two or more plaintiffs dies and party to suit. It says if party dies and
shall have staus of decree." the right to sue does not survive to right to sue survives, court on
surviving plaintiff or plaintiffs alone application made in this behalf, is
The object of the Rule is to secure a or a sole plaintiff or sole surviving required to substitute legal
speedy settlement of the question of plaintiff dies and right to sue survive, representatives of deceased party,
title raised at an execution sale. It the court on an application made in but if such application is not filled
gives the claimant a speedy and that behalf, shall cause the legal within time prescribed, suit
summary remedy. The court is representative of the deceased shallabate so far as deceased party
bound to decide the question of plaintiff to be made a party and shall is concerned, whereas rule 10 of
possession when an objection is proceed with the suit. Where within Order 22 C.P.C. provides for cases of
made to attachment of the property the time limited by law (i.e. within assignment, creation and devolution
in execution of a decree. On the 90 days of death), no application is of interest, other than those
question of possession the onus is made, the suit shall abate so far as referred to in foregoing rules. In
on the claimant or objector. the deceased plaintiff is concerned. cases covered under rules 384 if
Q. 65 When does a suit stand Rule 4 then lays down that where right to sue survives and no
abated ? What do you understand one of two or more defendant dies application for bringing legal
by complete and partial abatement and right to sue does not survive representatives of deceased of
? against the surviving defendant or deceased party filled within time
Ans. Abatement implies a defendants alone, or where sole prescribed, there is automatic
suspension or termination of defendant or sole surviving abatement of suit. In cases covered
proceeding for want of proper defendant dies and right to sue under Rule 10 legislature has not
parties. Provisions of Order 22 of survives, the court on an application prescribed any such procedure.
Code of Civil Procedure deals with made in that behalf shall cause the Q. 66 Plaintiff came to know about
creation, assignment or devolution legal representatives of deceased death of defendant on 15-12-94
of interest during pendency of suit defendant to be made party and from remarks of process server on
as well as appeal but not execution proceed with the suit. However summons received in court
proceedings due to death, marriage where within the time limited by law unserved that defendant died on 1-
or insolvency of parties. (i.e. 90 days of death) no application 6-94. He moved an application
Rule-1 of Order 22 C.P.C. provides is made the suit shall abate against immediately for substitution of
that the death of plaintiff or the deceased defendant. legal representative of deceased
defendant. Would this application decree of second appellate court. Is what he had lost and it is duty of
be allowed or rejected on the A entitled to the mesne profits so court to enforce that obligation
ground of expiry of period claimed. unless it is shown that restitution
prescribed therefor ? (c) A obtained a decree exparte would be clearly contrary to real
Ans. Rule 4 of Order XXII of the Code against B and in the execution of the justice of case.
of Civil Procedure lays down the decree brought the properties of B Restitution Under Inherent Power :
procedure in such cases. According to sale and himself became the In Kavita Rehan (Mrs.) v. Balsara
to it, where one of two or more purchaser. On appeal by B, the Hygiene Products Ltd. AIR 1995 SC
defendants die and the right to sue appellate court set aside the decree 44 it was observed: "The jurisdiction
does not survive against the and remanded the suit for re- to make restitution is inherent in
surviving defendant or defendants hearing. Then B applied for every court and will be exercised
alone, or a sole defendant or sole restitution. While that application whenever the justice of case
surviving defendant dies and the was pending, the suit was heard and demands. It will be exercised under
right to sue survives, the court, on again decreed. A then contended inherent power where the case did
an application made in that behalf that as the suit had been decreed no not strictly fall within the ambit of
shall cause the legal representative restitution could be granted. Is B Section 144."
of the deceased defendant to be entitled to restitution ? Ans. (b) The court is competent to
made a party and shall proceed with Ans. (a) The expression "Restitution" make orders as to mesne profits
the suit. means restoring to a party the consequent upon an order of
Sub-rules (3) of Rule 4 of Order XXII benefit which the other party has restitution and cannot refer the
C.P.C. lays down that where within received under a decree party to a separate suit. Court has
the time limited by law, which is 90 subsequently held to be wrong. The ample power under section 144
days, no application is made under principle of the doctrine of C.P.C. to make restitution to party
Sub-rule (1), the suit shall abate as restitution is that on the reversal of which has been deprived of fruits of
against the deceased defendant. a decree the law imposes an its decree by an order of court at the
However Rule 4(5) provides that obligation on the party to suit who instance of judgment debtor. Even
where the plaintiff was ignorant of received an unjust benefit of though a party may not claim mesne
the death of defendant and could erroneous decree to make profits, the same may be granted by
not for that reason make an restitution to the other party for way of restitution if on account of
application for substitution of legal what he has lost. Doctrine is based action of court a party is deprived of
representative of deceased on maxim "actus curiea neminum benefit of decree.The facts of the
defendant, within the prescribed gravabit" i.e. the act of court shall case in hand have been borrowed
period and suit is abated, plaintiff harm no one. Doctrine of Restitution from a judgment in Inderam Mansa
may make an application for setting as embodied under section 144 of Ram v. Ramdin Bhagwant Prasad AIR
aside such abatement and in Code, however does not confer any 1961 M.P. 200 it was held :
considering such application, court new substantive right to party but is "Where a party is deprived of
shall have due regard to the fact of a Rule of equity. In Order that possession of property due to an
such ignorance of the plaintiff." Section 144 of Code apply following >order or decree of court below,
In case in hand plaintiff was ignorant conditions must be satisfied:- which is later reversed or varied by
about death of defendant and on (a) restitution sought must be in appellate court, the court could
coming to know about death of respect of decree or Order which under the power conferred by
defendant from remarks of process has been reversed or varied. Section 144 place the party, who has
server, he immediately move been deprived of possession
application for substitution for (b) the party applying for restitution temporarily, in the position as if the
substitution of legal representatives must be entitled to benefit under reversed decree had not at all been
of deceased defendant. So his the reversing decree or order. passed." In view of above discussion,
application may be allowed in view it can be held that A is entitled to
of provisions contained in Rule 4(5) (c) the relief claimed must be mesne profit from date of stay Order
of Order 22 of Code. properly consequential on the of first appellate court till the date of
Q. 67 (a) What is the doctrine of reversal or variation of decree or decree passed by second appellate
restitution ? Has a court inherent order. court.
power to grant restitution ?
(b) A obtained a decree against. B If these conditions are satisfied, the Ans. (c) The object of restitution is to
for possession B filed an appeal court must grant restitution. restore the status quo ante between
against the decree and obtained stay In Bhagwanti Singh v. Lala Shri the parties. The principle of
of delivery. The appeal was allowed Kishan Das, AIR 1953 SC 136, it was restitution is that on the reversal of
and the suit dismissed. Against the observed: "The doctrine of a decree, the law imposes an
dismissal A preferred second appeal Restitution is that on reversal of a obligation on the party to the suit
and that was allowed and decree of judgment the law raises an who received the benefit of the
trial court was restored. A applied in obligation on the party to the erroneous decree to make
restitution for mesne profits from restore who has received the benefit restitution to the other party what
the day of stay order of first of the erroneous judgment to make he has lost. In Binayak Swain v.
appellate court to the date of the restitution to the other party for
Ramesh Chandra, AIR 1966 S.C. 948 suit. Is he entitled to file a fresh suit Ans. (b) Section 80 of C.P.C. provide
it was held without a fresh notice ? regarding giving of notice prior to
"Where in execution of an ex parte (c) Notice is given by A under Section filing any suit against government or
decree passed in appeal by the 80 of the Civil Procedure Code of a public servant. Section 80 says no
District Judge, the property of the proposed suit. A dies before the suit shall be instituted against
judgment debtor is sold and institution of the suit. Does the Government or against a public
purchased by the decree-holder notice by A enure for the benefit of officer in respect of any act
himself and the decree of the his legal representative ? purporting to be done by such public
District Judge is set aside by the High Ans. (a) Order 27 Sections 79 to 82 officer in his official capacity until
Court and the suit is remanded for of Civil Procedure Code, deal with the expiration of two months next
re-hearing and fresh disposal, the procedure in any suit brought by or after notice in writing has been
judgment debtor is under Section against Government or Public delivered to Government or to such
144 Civil P.C. entitled to restitution Officer. public officer.
of his properties purchased by the NOTICE : Section 80 C.P.C provides In Bihari Chowdhary v. State of Bihar
decree-holder subject to equities to for giving of notice prior to filling of AIR 1984 SC 1043 explaining the
be adjusted which was set aside by suit against Government or Public underlying object behind Section 80
the High Court is not validated by officer. Section 80 says no suit shall Supreme Court observed:-
the passing of the application for be instituted against Government or "...Section has been enacted as a
restitution, judgment debtor was Public officer in respect of any act measure of public policy with the
entitled to restitution because on purporting to be done by him in his object of ensuring that before a suit
that date the decree in execution of official capacity untill expiration of is instituted against the government
which the properties were sold had two months next after giving notice or a public officer, the government
been set aside. He is entitled to in writting has been delivered to or officer concerned is afforded
restitution notwithstanding anything Government or to such public opportunity to scrutinise the claim in
which happened subsequently as officer. In Bihari Choudhary v. State respect of which suit is proposed to
the right to claim restitution is based of Bihar AIR 1981 SC 1043, Supreme be filed and if it be found to be just
upon the existence or otherwise of a Court observed that claim, to take immediate action and
decree in favour of the plaintiff at "---- Section has been enacted as a thereby avoid unnecessary
the time when the application for measure of public policy with the litigation.."
restitution was made." It was object of ensuring that before a suit
observed by Supreme Court:- "...The against Government of Public officer However Sub-section (2) of Section
principle of the doctrine of is instituted in the court, the 80 provides that a suit may be
restitution is that on the reversal of Government or Public officer instituted with the leave of the court
a decree, the law imposes an concerned is afforded an for obtaining an urgent or
obligation on the party to the suit opportunity to scrutinize the claim in immediate relief against the
who received the benefit of the respect of which the suit is proposed government or any public officer in
erroneous decree to make to be filed and if it is found to be just respect of any act purporting to be
restitution to the other party for claim, to take immediate action and done by such public officer in his
what he has lost. This obligation avoid unnecessary litigation." official capacity without serving a
arises automatically on the reversal statutory notice. But in such a case,
or modification of the decree and Notice under Section 80 should the court shall not grant relief in the
necessarily carries with it the right to contain (a) Name, description and suit, whether interim or otherwise,
restitution of all that has been done place of residence of plaintiff, (b) a except after giving to the
under the erroneous decree, and the statement of cause of action, (c) government or the public officer, as
Court in making restitution is bound Statement of relief claimed, (d) Any the case may be, a reasonable
to restore the parties, so far as they other important information. opportunity of showing cause in
can be restored, to the same Sub-section (2) to Section 80 respect of the relief prayed for in the
position they were in at the time provides that a suit may be suit.
when the Court by its erroneous instituted with the leave of court for In Amar Nath Dogra v. Union of India
action had displaced them from...." obtaining urgent or immediate relief AIR 1963 SC 424: A fresh notice
In view of the above discussion the claimed against Government of under Section 80, C.P.C. is not
objection raised by A is not Public officer in his official capacity necessary where a suit is instituted
sustainable and B is entitled to without serving statutory notice. But but that is withdrawn with liberty to
restitution of his property. in such case court shall not grant file a fresh suit. If the plaint which is
Q. 68 (a) Discuss the procedure to relief in the suit whether interim or being considered by the court has
be adopted by court in a suit by or otherwise except after giving to been preceded by a notice which
against Government or Public Government of Public officer as the satisfies the requirements of Section
officer. case may be a reasonable 80, C.P.C. then the fact that before
(b) A plaintiff gives notice under opportunity of showing cause in the plaint then under consideration,
Section 80 of the Civil Procedure respect of relief claimed. there had been another plaint which
Code and institutes a suit before two Order 27 C.P.C provides regarding had been filed and withdrawn
months but is allowed to withdraw procedure to be followed in such cannot, on any principle be held to
the same with liberty to file a fresh suit.
have exhausted or extinguished the person domiciled in India shall be guardian for the suit. Provided that
validity of the notice issued. deemed to have attained majority the interest of such person is not
In view of the above discussion, a when he shall have completed his adverse to that of the minor and
plaintiff can file a fresh suit without age of eighteen years and not that he is not, in the case of a next
serving a fresh notice. before. But if before the expiry of friend, a defendant, or in the case of
Ans. (c) In Beohar Rajender Singh v. the age of eighteen, a guardian for a guardian for the suit, a plaintiff.
State of M.P. 1970(1) SCJ 118, it was the person or for the property or for Where a minor has a guardian
observed: The object of the notice both of the minor has been appointed or declared by competent
under Section 80, C.P.C., is to give to appointed or declared by a court, authority, no person other than such
the Government or the public then the period of minority is guardian shall act as the next friend
servant concerned an opportunity to extended till the completion of the of the minor or be appointed his
reconsider its or his legal position age of twenty one year. guardian for the suit unless the court
and if that course is justified to make Order 32 of Civil Procedure Code considers, for reasons to be
amends or settle the claim out of prescribe the procedure of suits to recorded, that it is for the minor's
court. The Section is no doubt which minor or persons of unsound welfare that another person be
imperative; failure to serve notice mind are parties. permitted to act or be appointed, as
complying with the requirements of Rule 1 of Order 32 of Code lays the case may be. No person shall
the statute. But the notice must be down that every suit by Minor shall without his consent in writing, be
reasonably construed. be instituted in his name by a person appointed guardian for the suit.
Supreme Court, in various case laws who in such suit shall be called the In Asharfi Lal v. Smt. Koili AIR 1995
has adopted the Rule of substantive `Next friend' of the Minor. SC 1440 Supreme Court has
compliance in dealing with Rule 3 of Order 32 of the Code of observed that in case of a decree
requirement of giving notice under Civil Procedure provides that where against minor, minor can file suit to
section 80 C.P.C. A notice under the defendant is a minor, the court set aside the decree if there is gross
section 80 should be held sufficient on being satisfied of the fact of his negligence on the part of his "next
if it substantially fulfils its object of minority, shall appoint a proper friend."
informing the parties concerned of person to be guardian for the suit Effect of Non-compliance of the
the nature of the suit to be filed. for such minor. An order for the Provisions Relating to Minors
In Ghanshyam Dass v. Dominion of appointment of a guardian for the According to Rule 2 Order 32 of the
India, 1984 A.W.C. 407 (SC): AIR suit may be obtained upon Code of Civil Procedure where a suit
1984 SC 1004 Supreme Court held application in the name and on is instituted by or on behalf of a
"Where a notice under Section 80 behalf of the minor or by the minor without a next friend the
given by the plaintiff's father plaintiff and such applications shall defendant may apply to have the
reached the concerned department be supported by an affidavit plaint taken off the file with costs to
of the Dominion of India and it was verifying the fact that the proposed be paid by the pleader or other
replied by not accepting the claim of guardian has no interest in the person by whom it was presented.
the father of the plaintiff, but before matters in controversy in the suit Notice of such application shall be
instituting the suit the plaintiff's adverse to that of the minor and given to such person, and the court,
father died, the suit by the legal that he is a fit person to be so after hearing his objection (if any),
heirs of the deceased without giving appointed. may make such order in the matter
fresh notice under Section 80, C.P.C. No order shall be made on any as it thinks fit. If a minor defendant
is maintainable and the notice by application under this Rule except is sued without a guardian ad-litem,
the deceased will enure for the upon notice to any guardian of the the decree in favour of the plaintiff
benefit of his legal heirs." minor appointed or declared by an is a nullity and inoperative and it
authority competent in that behalf, cannot be enforced against the
In view of above discussion, it is or, where there is no such guardian minor.
clear that no fresh notice under upon notice to the father or where Agreement or Compromise by next
section 80 of Code is required to be there is no father, to the mother, or friend or guardian for the suit Rule 7
given by A's legal representative, where there is no father or mother, of Order 32 of the Code of Civil
after A's death when A had earlier to other natural guardian of the Procedure deals with agreements or
given notice under section 80 before minor, or where there is no father, compromise on behalf of minors. It
filing suit. mother or other natural guardian, to provides that no next friend or
Q. 69 Who is Minor under the the person in whose care the minor guardian for the suit shall without
Indian Law ? State the procedure to is, and after hearing any objection the leave of the court, expressly
be adopted for a suit by or against a which may be urged on behalf of any recorded in the proceedings, enter
minor and persons of unsound person served with notice. into the agreement or compromise
mind. A compromise decree is Rule 4 of Order 32 of the Code of on behalf of a minor with reference
passed in a suit involving interest of Civil Procedure provides who may to the suit in which he acts as next
Minor, can the Minor challenge act as next friend or be appointed friend or guardian.
such decree ? If so, on what guardian for the suit. According to it, Sub-rule (1-A) of the said Rule,
grounds ? any person who is of sound mind which has been inserted by
Ans. Minor: Section 3 of Indian and has attained majority, may act Amendment Act. No. 104 of 1976,
Majority Act, 1875 provides every as next friend of a minor or as his lays down that an application for
obtaining the leave of the court shall (a) decree against a major treating continue to function as guardian and
be accompanied by an affidavit of him as a minor; the decree passed against the
the next friend or the guardian for (b) decree against a minor treating defendant as minor in the suit will
the suit; as the case may be, and him as a major; be a valid decree.
also, if the minor is represented by a (c) decree in favour of a minor Q. 71 Discuss the validity of the
pleader, by the certificate of the without a next friend; following :
pleader, to the effect that the (d) decree passed against a minor in (i) Decree against a person of
agreement or compromise proposed a suit in which he is not represented unsound mind supposing him to be
is, in his opinion, for the benefit of by a guardian ad litem; of sound mind.
the minor. Provided that the opinion (e) decree passed against a person (ii) Decree passed against a minor in
so expressed, whether in the who is a minor at the date of the a suit in which he is not represented
affidavit or in the certificate, shall institution of the suit with a properly by a guardian ad litem.
not preclude the court from appointed guardian ad litem; he (iii) A person who was minor at the
examining whether the agreement attains majority during the pendency date of the institution of suit with a
or compromise proposed is for the of the suit, but no steps are taken to proper guardian ad litem, attains
benefit of the minor. remove the guardian ad litem and majority during the pendency of suit
Thus, according to the said the decree is passed against him as a but no steps are taken to remove
provisions, it is the duty of the court minor. the guardian ad litem and a decree is
to safeguard the interest of the passed against him as a minor.
minors and any compromise which is Ans. (a) A decree obtained against a Ans. (i)& (ii) Rule-15 of Order 32
not beneficial to the interest of the major treating him as a minor at the C.P.C. has provided that all the Rules
minor should not be allowed. date is not a nullity, but is only an except Rule 2-A of Order 32 equally
In Kumari Manju Gupta v. National irregularity, which is curable. extend to persons adjudged to be of
Insurance Co. 1993 H.V.D. Vol. IV (b) decree against a minor treating unsound mind or who though not so
Page 357 it was held that in a claim him as a major; is a nullity. adjudged are on inquiry, found by
petition on behalf of a minor, no (c) It is only an irregularity which is the court, by reason of mental
settlement can be arrived at, deemed to be waived by the infirmity incapable of protecting
without leave of the court as defendant if he does apply to have their interests when suing or being
required under Rule 7 of Order 32 the plaint taken off the file under sued. Therefore as Rule 3 Order 32
CPC. Provisions contained in Rules 6 Order 32, Rule 2. The decree is say that where the defendant of suit
and 7 of said Order are mandatory consequently valid. Moreover, the is Minor or person of unsound mind,
and Addl. District Judge could not law treats all Acts of a minor which then court on being satisfied of fact
legally act upon that settlement are for his benefit on the same of minority or insanity of defendant,
without applying its mind to see footing as those of an adult. It only shall appoint a proper person as
whether amount agreed between does not permit him to do anything guardian ad litem of such minor or
parties is adequate to compensate which is prejudicial to his own person of unsound mind.
the minor girl. interests. These provisions are mandatory.
In Sant Bhushan Lal v. Brij Bhushan (d) A decree passed against a minor Therefore when decree is passed
Lal, AIR 1967 Del. 137, it was held in a suit in which he is not against person of unsound mind or
that where a next friend or guardian represented by a guardian at litem is against minor without complying
ad litem of minor enters into a a nullity, and cannot be enforced with provisions of Rule 3 Order 32
compromise on his behalf with against him. C.P.C. i.e. without appointment of
permission of the court under Order (e) The decree passed in the suit is a guardian ad litem, such decree is a
32 R. 7 the compromise and decree valid decree. The question under nullity and cannot be enforced
based thereon would be as much consideration is governed by Rule against him.
binding on the minor as it is on adult 3(5) of Order 23, which provides that In Rama Lal v. Laxmi, AIR 1940 Ajmer
parties, unless the minor can show a person appointed to be guardian 48, it was held that lunatics are
that the next friend or his guardian ad litem for a minor shall, unless his under the special protection of the
ad litem was guilty of fraud or appointment is terminated by court and decree will not be
negligence. retirement, removal or death, effective even if by ignorance of
So minor can challenge a continue as such throughout all court, no enquiry as to mental
compromise decree passed against proceedings arising out of the suit infirmity of the defendant, was
him on the grounds - (i) that the including the proceedings in any made.
compromise has been effected appellate or revisional court and any Ans. (iii) No provision has been
without the leave of the court (ii) proceedings in the execution of a made in the Code in respect of a
that the next friend or guardian ad decree. Consequently, the guardian minor defendant attaining majority
litem has been guilty of gross ad litem does not automatically during the pendency of the suit. The
negligence and (iii) that there has cease to function on the minor's reason for the omission is that while
been fraud or collusion on the part attaining majority. It is necessary for a plaintiff minor on becoming major
of next friend or guardian ad litem. the minor on attaining majority that can elect either to go on with or put
Q. 70 Discuss the validity of the he should take steps to have his an end to the litigation, but the
following : guardian removed and in the defendant has no such choice
absence of such steps, he will available to him and suit must
proceed against him not enquiry into the means of applicant Rule 8 says where the application is
withstanding his becoming major. by officer of court. Rule 4 provides granted, it shall be numbered and
A decree passed against a person that where application is in proper registered and shall be deemed to
who was a minor at the date of the form and duly presented, court may be a plaint in the suit and the suit
institution of the suit with a properly if it think fit examine the applicant shall proceed in ordinary manner,
appointed guardian ad litem but and his agent regarding the merits of except that the plaintiff shall not be
attains majority during the pendency the claim and property of applicant. liable to pay any court fees or
of the suit without any steps being Rule 5 provides that the court may process fees. Where the court
taken to remove such guardian with reject an application for permission rejects the application to sue as an
the result that the decree is passed to sue as an indigent person on the indigent person, order of refusal
against him as a minor, is a valid following grounds:- bars a subsequent similar
decree as the guardian ad litem does (i) Where it is not framed and application, but the applicant may
not automatically cease to function presented in the manner prescribed sue in the ordinary manner provided
on the minor attaining majority, but above. he pays the costs incurred by the
continues to represent him government or opposite party in
throughout all proceedings unless (ii) Where the applicant is not an opposing such application.
his appointment is terminated by indigent person. Q. 73 Under what circumstances
retirement, removal or death under can a court order arrest before
Rule 3(5) of Order 32. (iii) Where he has within 2 months judgment ?
Q. 72 Who is an indigent person ? next before the presentation of the Ans. Order 38 Rules 1 to 4 of the
What is the mode of instituting application disposed of any property Code of Civil Procedure deal with
suits by such person ? fraudulently or in order to be able to arrest before judgment. Rule 1 of
Ans. Object: Order 33 C.P.C. deals apply for permission to sue as an Order 38 of the Code of Civil
with suits by indigent persons. indigent person :- Procedure provides that where at
Provisions of Order 33 are intended any stage of a suit, other than a suit
to enable the indigent person to Provided that no application shall be of the nature of referred to in
institute suits without payment of rejected if even after the value of section 16, clauses (a) to (d), the
court fees. Generally a plaintiff suing the property disposed of by the court is satisfied by affidavit or
in a court of law is bound to pay applicant is taken into account, the otherwise -
court fee. applicant would be entitled to sue as (a) that the defendant, with intent
Indigent Person - Meaning an indigent person. to delay the plaintiff or to avoid any
Explanation 1 to Rule 1 says A process of the court or to obstruct
person is an "indigent person if (iv) Where his allegations do not or delay the execution of any decree
(i) he is not possessed of sufficient show a cause of action. that may be passed against him.-
means to enable him to pay the fee
prescribed by law for the plain in (v) Where he has entered into any (i) has absconded or left the local
such suit or agreement with reference to the limits of the jurisdiction of the court,
(ii) Where no such fee is prescribed, subject-matter of the proposed suit or
when he is not entitled to property under which any other person has
worth one thousands rupees. obtained an interest in such subject- (ii) is about to abscond or leave the
In both the cases, the property matter. local limits of the jurisdiction of the
exempt from attachment in court, or
execution of a decree and the (vi) Where the allegations made by
subject matter of the suit should be the applicant in the application show (iii) has disposed of or removed from
excluded. that the suit would be barred by any the local limits of the jurisdiction of
APPLICATION (Rule 2) Every law for time being in force. the court his property or any part
application for permission to sue as thereof, or
an indigent person should contain (vii) When any other person has
following particulars :- entered into an agreement with him (b) that the defendant is about to
(1) Particulars required in regard to to finance the litigation. leave India under circumstances
plaints in suits. affording reasonable probability that
(2) Schedule of moveable or Rule 6 of Order 33 then says : Where the plaintiff will or may thereby be
immovable property belonging to the application is not rejected, the obstructed or delayed in the
applicant with estimated value court shall fix a date for receiving execution of any decree that may be
thereof evidence in proof or disproof of passed against the defendant in the
(3) Signature and verification as applicant's indigency. Rule 7 says suit,
provided in Order 6 Rules 14 and 15 that on the day so fixed the court
C.P.C. shall examine the witnesses (if any) the court may issue a warrant to
produced by either side and it shall arrest the defendant and bring him
The application is to be presented to also hear the arguments of parties before the court to show cause why
the court by applicant in person and then either allow or refuse to he should not furnish security for his
unless appearance is exempted. Rule allow the applicant to sue as an appearance :
1A of order 33 provides for initial indigent person.
Provided that the defendant shall (b) is about to remove the whole or disposal of the suit or until further
not be arrested if he pays to the any part of his property from the orders.
officer entrusted with the execution local limits of the jurisdiction of the
of the warrant any sum specified in court, Rule 2. Injunction to restrain
the warrant as sufficient to satisfy repetition or continuance of breach -
the plaintiff's claim ; and such sum the court may direct the defendant In any suit for restraining the
shall be held in deposit by the court either to furnish security in such sum defendant from committing a
until the suit is disposed of or until as may be specified in the order, to breach of contract or other injury of
further order of the court. produce and place at the disposal of any kind, whether compensation is
the court, when required, the said claimed in the suit or not, the
Where the defendant fails to show property of the value of the same or plaintiff may, at any time after the
such cause the court shall order him such portion thereof as may be commencement of the suit, and
either to deposit in court money or sufficient to satisfy the decree, or to either before or after judgement,
other property sufficient to answer appear and show cause why he apply to the Court for a temporary
the claim against him, or to furnish should not furnish security. (Order injunction to restrain the defendant
security for his appearance at any 38, Rule 5(1)). from committing the breach of
time when called upon while the suit The plaintiff shall unless the court contract or injury complained of, or
is pending, and until satisfaction of otherwise direct specify the any breach of contract or injury of a
any decree that may be passed property required to be attached like kind arising out of the same
against him in the suit, or make such and the estimated value thereof. contract or relating to the same
order as it thinks fit in regard to the (Order 38, Rule 5(2)). property or right.
sum which may have been paid by The court can also order conditional Scope - The power to grant
the defendant under the proviso to attachment of whole or part of the temporary injunction is discretionary
the last proceeding rule. (Order Rule property. and the discretion has to be
2 C.P.C.) Q. 75 What do you understand by exercised judicially. The grant of
Rules 3 and 4 of Order 38 of the "Temporary Injunction" ? What is temporary injunction pending the
Code of Civil Procedure deal with its scope ? When can the court suit of permanent injunction is a
the procedure where the surety grant temporary injunction ? very serious matter as it affects the
applies for being discharged and the Ans. TEMPORARY INJUNCTION rights of the person in possession of
defendants fail to furnish security or Temporary injunction is an order by property and restricts him from
find fresh surety. Sub-rule (3) lays which a party to suit is required to using the same at his disposal just
down that a surety for the do or to refrain from doing a because a suit has been instituted in
appearance of a defendant may at particular act until the suit is this respect. It is thus too serious a
any time apply to the court in which disposed or until further order of the matter to be given a casual or
he became such surety to be court. It is in the nature of an routine treatment.
discharged from the obligation and interim order passed by the court. It may be noted that application of
on such application being made, the Order 39 of Code of Civil Procedure temporary injunction is instituted
court shall summon the defendant deals with "Temporary Injunction" only where regular suit for
to appear or, if it thinks fit, may Rules 1 and 2 of Order 39 of Code of permanent injunction is pending
issue a warrant for his arrest in the Civil Procedure are relevant which before the same court with whom
first instance. On the appearance of read as under :- the application for temporary
the defendant in pursuance of the Rule 1. Cases in which temporary injunction has been instituted.
summons or warrant or, on his injunction may be granted - Where Temporary injunction cannot be
voluntary surrender, the court shall in any suit it is proved by affidavit or granted unless it appears that there
direct the surety to be discharged otherwise - are chances of success of the basic
from his obligation, and shall call (a) that any property in dispute in a suit of permanent injunction. Where
upon the defendant to find fresh suit is in danger of being wasted, a permanent injunction cannot be
security. damaged or alienated by any party given, generally no temporary
Q. 74 Under what circumstances to the suit, or wrongfully sold in injunction is allowed. Thus, grant of
may a court order attachment execution of a decree, or an ad interim injunction is an
before judgment ? `extraordinary' thing.
Ans. Attachment before judgment - (b) that the defendant threatens, or Guiding principles
According to Rule 5 of Order 38, intends to, remove or dispose of his Before granting of the temporary
where, at any stage of a suit the property with a view to defrauding injunction, the following conditions
court is satisfied, by affidavit or his creditors, are required to be satisfied, namely
otherwise, that the defendant with :-
intent to obstruct or delay the (c) that the defendants threatens to (i) prima facie the case is in favour of
execution of any decree that may be dispossess the plaintiff or otherwise the plaintiff and against the
passed against him - cause injury to him in relation to defendant;
(a) is about to dispose of the whole disputed property, the court may by
or party of his property, or order, grant a temporary injunction (ii) irreparable injury is likely to be
to restrain such act, until the caused to the plaintiff which cannot
be compensated for in terms of such act or to make such order for and revokes the licence, the
money; the purpose of staying or preventing contractor cannot seek relief to be
the wasting, damaging, alienation, authorised to continue the work
(iii) balance of convenience lies in sale or removal etc. or dispossession under contract and court will not
favour of the plaintiff and against of plaintiff or otherwise causing that way indirectly grant specific
the defendant; injury to plaintiff in relation to performance of agreement. The
property in dispute; as court think fit owner cannot be forced to continue
Q. 76 A constructed a house for B until the disposal of suit or further to employ a contract with whom he
under an agreement. B revoked the Orders. is at logger heads. Similarly a
agreement complaining that the In Dorab Cawas Ji v. Coomi Sorah, contractor cannot be forced to work
work was incomplete, shoddy and AIR 1990 SC 867, it was observed : for owner whose contract has been
grossly delayed. A filed suit for "Object of making an order terminated even though wrongfully.
wrongful termination of contract regarding interim relief is to evolve a As regards the plea of lien, it was
and for recovery of Rs. 50 lacs workable formula to the extent observed "term" "lien" in its
allegedly outstanding for the work called for by demands of situation ordinary sense means the right by
done. B also filed suit for recovery of keeping in mind the pros and cons of law to keep possession of something
Rs. 12 lacs allegedly overpaid and for matter and striking a delicate belonging to a person in debt until
permanent injunction. He filed an balance between two conflicting that debt has been paid. Lien cannot
application for grant of ad-interim interests i.e. injuries and prejudice give any right, interest or title in the
injunction under O. 39, Rules 1 and 2 likely to be caused to plaintiff if immovable property in possession of
CPC for restraining A from entering relief is refused and injury and person claiming lien."
upon it. A resisting it contended that prejudice likely to be caused to In view of above discussion the
the construction is complete and it defendant if the relief is granted. plaintiff `B' is entitled to an ad-
was wrongful on the part of B to Underlying object of granting interim injunction directing A to
revoke the agreement, that a huge temporary injunction is to maintain remove himself from property and
sum is outstanding for the work and preserve status quo at the time further not to resist or obstruct the
done and he has a lien over the of institution of proceedings and to entry of B plaintiff, thereto. Facts of
building, his licence cannot be prevent any change in it until the present case, have been drawn from
revoked till his dues are paid and final determination of suit. "It was case Master Builders v. United
that grant of temporary injunction also observed - "The power to grant States of America 1991 DLT 719.
will amount to decreeing the suit a temporary injunction is in Q. 77 `B' filed a suit for dissolution
itself. Decide B's ad-interim discretion of court and before of Partnership and Accounts against
injunction application. granting the injunction the court `A'. In order to deprive `B' of the
Ans. Temporary injunction is an must be satisfied about following benefits `A' began to shift the goods
order by which a party to an action aspects:- and assets of business
is required to do or refrain from (i) First, applicant must make out a establishment in a hurry. Advise `B'
doing a particular thing until the suit prima facie case in support of right as to what should he do in the
is disposed of or until further orders claimed by him. Court must be circumstances.
of court. Temporary injunction is satisfied that there is a bona fide Ans. Section 94(d) and Order 40 of
interim in nature granted on an dispute raised by applicant and the Code of Civil Procedure deals
interlocutory application of plaintiff. there is probability of the applicant with the appointment of receivers.
The granting of temporary injunction being entitled to relief claimed by According to it, the courts are
is a matter of discretion of court, to him. So existence of prima facie right empowered in certain circumstances
be exercised judicially according well and infraction of such right is to appoint receivers. It provides that
settled principles. condition precedent to grant a where it appears to the court to be
Rule 1 of Order 39 of Code provide temporary injunction. just and convenient, the court may
that where in any suit it is proved by (ii) It is necessary to prevent by order:
Affidavit or otherwise:- irreparable or serious injury which (a) appoint a receiver of any
(a) Property in dispute in a suit is in normally cannot be compensated in property, whether before or after
danger of being wasted, damaged or terms of money. decree;
alienated by any party to suit or (iii) The balance of convenience is in (b) remove any person from the
wrongfully sold in execution of a favour of one seeking such relief. possession or custody of the
decree. Being essentially an equitable relief property;
(b) Defendant threatens or intends the grant or refusal of temporary (c) commit the same to the
to remove or dispose of his property injunction shall ultimately vest in the possession, custody or management
with a view to defrauding his sound judicial discretion of the court of the receiver; and
creditors. to be exercised in the light of the (d) confer upon the receiver all such
(c) Defendant threatens to facts and circumstances in each powers, as to bringing and
dispossess the plaintiff or otherwise case. defending suits and for the
cause injuries to plaintiff in relation In United State of America v. Master realization, management,
to property in dispute in suit. Builders, 1991 DLT 719 , it was protection, preservation and
Court may by order grant a observed: "If the owner in building improvement of the property, the
temporary injunction to restrain contractor terminates the contract collection of the rents and profits
thereof, the application and disposal Ans. (a) Appointment without be assigned or charged and is not
of such rents and profits, and the application. According to the liable to any attachment.
execution of documents as the provision of Order 40, Rule 1 of the (ii) It has been held in several cases
owner himself has, or such of these Code of the Civil Procedure, a court that a Receiver can be appointed
powers as the court thinks fit. can appoint a receiver in a case even even where the mortgage is a simple
without an application from the mortgage but the Hon'ble High
In Krishan Kumar v. Grindlays Bank party concerned if it is satisfied that Courts of Allahabad and Patna have
AIR 1991 SC 899, it was observed, it would be just and conveninent to taken a contrary view. The view in
following principles must be borne do so. According to those provisions, Charan Nandi Chaudhry v. Rajnit
in mind before a receiver is it is not necessary that the Prasad, AIR 1932 Patna 360 appears
appointed by court: appointment should be made only to be correct in view of sub-rule (2)
(a) The appointment of receiver is a when the application is made. of Rule 1 of Order 40 of the Code of
discretionary power of court. Duration No provision has been Civil Procedure which lays down that
(b) The object of appointment of made in the Code of the Civil nothing in this rule shall authorise
receiver is the preservation of Procedure regarding the duration of the court to remove. In the case of
property in dispute pending judicial appointment of Receiver. The simple mortgage the plaintiff gets a
determination of rights of parties to Supreme Court has summarised the decree for sale and he has no
it. law on this point in Hira Lal Patni v. present right to be in possession of
(c) A receiver should not be Loon Karan Sethiya, AIR 1962 SC 21, the property and, therefore the
appointed unless the plaintiff prima has observed :- defendant's possession cannot be
facie proves that he has very (i) If a receiver is appointed in a suit taken away by the appointment of
excellent chance of succeeding in until judgment, the appointment is the Receiver.
the suit. brought to an end by the judgment; Q. 79 What are the powers of a Civil
(d) Since appointment of receiver Court in regard to the appointmet
deprives the opposite party the (ii) if a receiver is appointed in a suit of a Commissioner ? Has a court
possession of property before final without his tenure being expressly inherent powers under section 151
judgment is pronounced , it should defined, he will continue to be Cr.P.C. to appoint a Commissioner ?
only be granted for prevention of receiver till he is dis-charged; Ans. Appointment of Commissioner
menifest injury or wrong. Sections 75 to 78 Order 26 of the
(iii) but after the final disposal of the Code of Civil Procedure lays down
In Issar Das S. Lulla v. Smt. Hari, AIR suit as between the parties to the the provisions relating to
1962 Madras 458, it was held that litigation, the Receiver's functions commissions. According to the
the appointment of receiver is in the are terminated, he would still be provisions of sections 75 and 76 of
discretion of the court and the court answerable to the Court as its officer the Code, the court may issue
should not exercise the power as a till he is finally discharged. commission in the following cases to
matter of course but only when it is any person or to Court other than a
necessary to do so. A receiver should (iv) the court has ample power to High Court :
not be appointed when there is a continue the Receiver even after the (i) for examination of witness
bonafide possession of the property, final decree if the exigencies of the (ii) for local investigation;
unless there is some cogent grounds case so required; (iii) to examine accounts;
for interference. The main object (iv) to make a partition;
and purpose of the appointment of Ans. (b)(i) A receiver cannot be (v) to hold a scientific, technical or
receivers is the preservation of the appointed in execution of a decree expert investigation.
subject matter of the litigation in respect of a compulsory deposit in (vi) to conduct sale of properties
pending a judicial determination of a Provident Fund to the judgment- which is subject to speedy and
the rights of the parties thereto. debtor as held by our Hon'ble natural decay and which is in the
Q. 78 (a) Can a court appoint a Supreme Court in Union of India v. custody of the Court pending the
Receiver in a case even without an Heera Devi and another, AIR 1952 SC determination of the suit;
application from the party 765. In this case the decree holder, a (vii) to perform any ministerial act;
concerned ? What is the duration of lady, had obtained a money- decree
the appointment of a Receiver ? against one Ram Grahit Singh, a Order 26 Rule 1 of the Code of Civil
(b) Can a Receiver be appointed in retired Head clerk in the dead letter Procedure deals with the cases in
the following cases : office. In 1949, a Receiver was which the Court may issue
(i) in execution of a decree in respect appointed for collecting the monies commission to examine witnesses. It
of a compulsory deposit in the standing to the credit of the provides that any Court may in any
Provident Fund due to the judgment-debator in the Provident suit issue a commission for the
judgment-debtor; Fund with the postal authorities. The examination on interrogatories or
Union of India intervened for setting otherwise of any person resident
(ii) in a suit for enforcement of aside the order of appointment of within the local limits of its
simple mortgage on the application Receiver and the Hon'ble Supreme jurisdiction who is exempted under
of the mortgagee. Court allowing the appeal of Union this Code from attending the Court
of India held that no Receiver can be or who is from sickness or infirmity
appointed and such a deposit cannot unable to attend it :
Provided that a commission for any scientific investigation which Ans. Right of appeal is not a natural
examination on interrogatories shall cannot, in opinion of the court, be or inherent right attaching to
not be issued unless the Court, for conveniently conducted before to litigation. Such a right is given by the
reasons to be recorded, thinks it the court may, if it thinks it statute or by the Rules having the
necessary so to do. necessary or expedient in the force of statute.
interests of justice so to do, issue a Section 96 of the Code of Civil
Rule 4 of the Order XXVI of the Code commission to such person as it Procedure provides that
of Civil Procedure further lays down thinks fit, directing him to inquire "Save as where otherwise expressly
that any Court may in any suit issue into such question and report provided in body of this Code or by
a commission for the examination thereon the Court. Rule 10-B any other law for the time being in
on interrogatories or otherwise of - provides that where any question force, an appeal shall lie from every
(a) any person resident beyond the arising in a suit involves the decree passed by any court
local limits of its jurisdiction; performance of any ministerial act exercising original jurisdiction to the
which cannot, in the opinion of the Court authorised to hear appeals
(b) any person who is about to leave Court, be conveniently performed form the decisions of such court. An
such limits before the date on which before the Court, the Court may, if, appeal may lie from an original
he is required to be examined in for reasons to be recorded, it is of decree passed ex-parte. The
court; and opinion that it is necessary or following are the exceptions:-
expedient in the interests of justice 1. No appeal shall lie from a decree
(c) any person in the service of the so to do, issue a commission to such passed by the Court with the
Government who cannot, in the person as it thinks fit, directing him consent of parties.
opinion of the court, attend without to perform that ministerial act and
detriment to the public service: report thereon to the Court. 2. No appeal shall lie, except on a
Rule 11 of Order 26 of the Code of question of law, from a decree in
Provided that where, under Rule 19 Civil Procedure deals with the any suit of the nature cognisiable by
of Order 16, a person cannot be commission to examine or adjust Courts of Small Causes, when the
ordered to attend a court in person, and its Rule 13 deals with the amount or value of the subject-
a commission shall be issued for his commission to make partition of matter of the original suit does not
examination if his evidence is immovable property. exceed three thousand rupees.
considered necessary in the Appointment of Commissioner
interests of justice: under inherent powers : Note : - In view of C.P.C.
A Court has no inherent powers (Amendment) Act, 1999 in sub-
Provided further that a commission under section 151 of the Code of Section (4) of Section 96, now in
for examination of such person on Civil Procedure to appoint a place of words "three thousand
interrogatories shall not be issued Commissioner because inherent rupees" the words "ten thousand
unless the Court, for reasons to be powers are not over substantive rupees" have been substituted.
recorded, thinks, it necessary so to rights. Our Hon'ble Supreme Court
do. has held in Padam Sen v. State of 3. Where any party, aggrieved by a
U.P., AIR 1961 SC 218, that a Court preliminary decree passed after the
Rule 9 of Order 26 of the Code of has no inherent powers under commencement of this Code does
Civil Procedure deals with the section 151 C.P.C. to appoint a not appeal from such decree.
commission to make local Commissioner to seize account
investigation. It provides that in any books in the possession of the Kinds of Appeal Appeals can be
suit in which the court deems a local plaintiff upon an application by the divided into following four classes
investigation to be requisite or defendant that he has apprehension according to the provisions of the
proper for the purpose of that they would be tampered with. It Code of Civil Procedure:
elucidating any matter in dispute, or was observed by the Hon'ble (i) Appeals from original decree.
of ascertaining the market value of Supreme Court that powers saved (Sections 96 to 99 and Order 41
any property, or the amount of any by section 151 C.P.C. are not powers C.P.C.)
mesne profits of damages of annual over substantive rights which a
net profits, the Court may issue a litigant possesses. A party has full (ii) Second appeals. (Sections 100 to
commission to such person as it right over his account books and a 103 and Order 42 C.P.C.)
thinks fit directing him to make such Court can not seize them forcibly. It
investigation and to report thereon can summon them and, if not (iii) Appeals from Orders. (Section
to the Court. produced, it can penalise the party 104 to 106 and Order 43 C.P.C.).
Rule 10-A of Order 26 of the Code of and draw adverse presumption
Civil Procedure deals with the against him. (iv) Appeals to the Supreme Court.
commission for scientific Q. 80 "Unless a right of appeal is (Section s 109 and Order 45 C.P.C.).
investigation and Rule 10-B of that clearly given by statute, it does not
Order deals with the commission for exist" -- Comment Can an appellate Appeals from Original Decree
performance of a ministerial act. court reverse a decree on the Section 96 provides that save where
Rule 10-A provides that where any ground of misjoinder of parties ? otherwise expressly provided in the
question arising in a suit involves body of this Code or by any other
law for the time being in force, an the case does not involve such appeal, the scope of hearing is
appeal shall lie from every decree question. circumscribed by the question so
passed by any court exercising formulated by High Court.
original jurisdiction to the court Provided that nothing in this Sub- Respondant is at liberty to show that
authorized to hear appeals from the section shall be deemed to take question formulated by High Court is
decisions of such court. An appeal away or abridge the power of the not involved in the case. However
may lie from original decree passed court to hear, for reasons to be High Court's power to hear the
exparte but no appeal shall lie from recorded, the appeal on any other appeal on any other substantial
a decree passed by the court with substantial question of law. question of law not earlier
the consent of the parties. Sub- Section 101 of C.P.C. lays down that formulated by it, is not taken away
section (4) of Section 96 C.P.C. which no second appeal shall lie except on subject to twin conditions being
has been added by Amendment Act the ground stated above and satisfied : (a) the High Court feels
No.104 of 1976, also lays down that Sections 100-A and 102 C.P.C. that the case involves such question
no appeal shall lie, except on a provide that in certain cases no and (b) High Court records reasons
question of law, from a decree in second appeal lies. Order 42 deals for such satisfaction. The phrase "
any suit of the nature cognizable by with procedure to be adopted in Substantial Question of Law" means
courts of small causes, when the second appeal. question of law which must be
amount or value of the subject- Civil Procedure Code (Amendment) debateable, not previously settled
matter of the original suit does not Act, 2002 has inserted Section 100- by law of land or binding precedent
exceed ten thousands rupees. A which provides. and must have material bearing on
Section 97 of the Code of Civil "No Further Appeal in Certain Cases" the decision of the case, if answered
Procedure deals with appeal from - Notwithstanding anything either way, in so far as the rights of
final decree where no appeal is contained in any letters patent for parties before it are concerned."
preferred against preliminary any High Court or in any other
decree, and Section 98 provides that instrument having the force of law Appeals from Orders Section 104
where an appeal is heard by a bench or in any other law for the time and Order 43 of the Code of Civil
of two or more judges, the appeal being in force where any appeal Procedure deals with such orders
shall be decided in accordance with from an original or appellate decree from which appeal lies. According to
the opinion of such judges or of the or order is heard or decided by a it, an appeal shall lie from the
majority (if any) of such judges. single judge of High Court, no following Orders, and save as
Second Appeals Section 100 of the further appeal shall lie from the otherwise expressly provided in the
Code of Civil Procedure lays down judgment and decree of such single body of the Code or by any law for
that: Judge : the time being in force, and from no
(i) Save as otherwise expressly By single Judge of High Court, no other orders :
provided in the body of this Code or further appeal shall lie from (i) An order under Section 35 ;
by any other law for the time being judgment, decision or order of such
in force, an appeal shall lie to the single Judge." Section 102 of Code (ii) An order under Section 91 or 92
High Court from every decree has also been substituted by refusing leave to institute a suit of
passed in appeal by any court Amendment Act 2002 which says :- the nature referred to in Sections 91
subordinate to the High Court, if the Section 102 "No second appeal shall and 92, as the case may be
High Court is satisfied that the case lie from any decree, when amount
involves a substantial question of or value of subject matter of original (iii) An order under any provision of
law. suit does not exceed 25000/- Code imposing a fine or directing the
rupees". arrest or detention in the civil prison
(ii) An appeal may lie under this Recently Three Judges Bech of of any person except where such
Section from an appeal (1) decree Supreme Court in Santosh Hazari v. arrest or detention is in execution of
passed exparte. Purushottam Tiwari (By L.Rs), AIR a decree.
2001 SC 965, observed that :
(iii) In an appeal under this Section, " Section 100 of Code as amended in (iv) Any order made under Rules
the memorandum of an appeal shall 1976 restricts the Jurisdiction of from which an appeal is expressly
precisely state the substantial High Court to Hear the Second allowed.
question of law in the appeal. Appeal only on `Substantial Question
of Law involved in the case'. An Provided that no appeal lies against
(iv) Where the High Court is satisfied obligation is cast upon the appellant any order under Section 35-A save
that a substantial question of law is to precisely state in Memorandum on the ground that no Order or an
involved in any case, it shall of appeal the substantial question of order for payment of a less amount
formulate that question. law involved in appeal for which ought to have been made.
appellant proposes to urge before
(v) The appeal shall be heard on the High Court. High Court must be APPEAL TO SUPREME COURT Section
question so formulated and the satisfied that a substantial question 109 of Code of Civil Procedure lays
respondent shall, at the hearing of of law is involved in the case and down, that subject to provisions in
the appeal, be allowed to argue that such question has to be formulated Chapters IV and V of the
by High Court. At the hearing of Constitution and such Rules as may
from time to time be made by the provides that the High Court may
Supreme Court regarding appeals (c) By a decision on reference by call for the record of any case which
from the courts of India and to court of small cause. has been decided by any court
provisions hereinafter contained, an subordinate to such court and in
appeal shall lies to Supreme Court may apply for Review of Judgement which no appeal lies thereto, and if
from any judgement, decree or final to court which passed the decree or such subordinate court appears: (a)
Order in a civil proceeding of High made the order and the Court may to have exercised jurisdiction not
Court, if the High Court certifies:- make such order thereon as it think vested in it by law, or (b) to have
(i) That the case involves a fit. failed to exercise a jurisdiction so
substantial question of law of GROUNDS vested, or (c) to have acted in the
general importance and Order 47 Rule 1 of Code says that exercise of its jurisdiction illegally or
Application for Review of Judgement with material irregularity, the High
(ii) That the opinion of the High may be made on any of the Court may make such order in the
Court on said question needs to be following grounds:- case as it thinks fit. Provided that the
decided by Supreme Court. (a) Discovery of new and important High Court shall not, under this
matter or evidence, which after the Section , vary or reverse any order
Order 45 C.P.C deals with procedure exercise of due diligence was not made, or any order deciding an
in appeal before Supreme Court. within his knowledge or could not be issue, in the course of a suit or other
Whether Appellate Court can produced at the time when the proceeding except where:
Reverse a Decree on Ground of Mis decree was passed or made. (a) the order, if it had been made in
Joinder of Parties Section 99 of the favour of the party applying for
Code provides: (b) Mistake or error, apparent on revision, would have finally disposed
"No decree to be reversed or the face of record. of the suit or other proceeding, or
modified for error or irregularity not
affecting merits or jurisdiction. - No (c) Any other sufficient reason. (b) the order, if allowed to stand,
decree shall be reversed or would occasion a failure of justice or
substantially varied, nor shall any Explanation : The fact that the cause irreparable injury to the party
case be remanded, in appeal on decision on a question of law on against whom it was made.
account of any misjoinder [or non- which judgment of the court is
joinder] of parties or causes of based has been reversed or Sub-section (2) of Section 115 C.P.C.
action or any error, defect or modified by subsequent decision of further lays down that the High
irregularity in any proceedings in the a superior court in any other case Court shall not under this Section,
suit, not affecting the merits of the shall not be a ground for the review vary or reverse any decree or order
case or the jurisdiction of the Court: of such judgement." against which an appeal lies either
provided that nothing in this Section Power of Review should not to the High Court or to any court
shall apply to non-joinder of a however be confused with appellate subordinate thereto.
necessary party." Thus, the appellate power which enables the court to Explanation - In this Section, the
Court shall not reverse a decree on correct all errors committed by expression "any case which has been
the ground of mis- joinder of parties subordinate court. In A.T. Sharma v. decided" includes any order made,
unless it has affected the merits of A.P. Sharma AIR 1979 SC 104 it was or any order deciding an issue, in the
the case or the jurisdiction of the observed: course of a suit or other proceeding.
Court or there has been a failure of "As a general rule where a litigant Civil Procedure Code (Amendment)
justice. obtained a judgment in a court, he is Act, 1999has substituted the proviso
by law entitled, not to be deprived to sub-section (1) of Section 115 of
Q. 81 State the circumstances in of fruits thereof without solid Code by following words :-
which a person aggrieved by the grounds. It is very easy for party who "Provided that High court shall not,
judgment of the Court may apply has lost the case to see the weak under this section vary or reverse
for review of its judgment? points in case and try to fill in the any order made or any order
Ans. In simple words Review means gaps by procuring evidence which deciding an issue, in course of a suit
to look once again. In Legal Parlance will strengthen that weak part of his or other proceedings except where
Review is a judicial re-examination case. Object of Review is neither to the order, if it had been made in
of the case by same court. Section enable the Court to write a second favour of party applying for revision,
114 of Code of Civil Procedure gives judgment nor to give second inning would have finally disposed of the
a substantive right of review and to a party who has lost the battle suit or other proceedings."
order 47 provides the procedure, because of his own negligence."
therefore Section 114 of Code says Amendment Act, 1999 has also
any person considering aggrieved: Q. 82 Can Revision be filed against inserted sub-section (3) to Section
(a) By a decree or order from which an Order of court disallowing an 115 of Civil Procedure Code, which
an appeal is allowed but from which important question put to a witness provides as under:-
no appeal has been preferred; ? "A revision shall not operate as a
Ans. Section 115 of the Code of Civil stay of suit or other proceeding
(b) By decree or order from which Procedure deals with the revisional before the court, except where such
no appeal is allowed; jurisdiction of the High Court. It
suit or other proceeding is stayed by expressly barred, while a revision failure to exercise jurisdiction vested
the High Court. lies only in the cases mentioned in in the court, or illegal or irregular
Section 115 C.P.C., and to the High exercise of the jurisdiction, while the
Supreme Court in Baldev Das v. Court only. grounds for review are the discovery
Filmistan Distributors, AIR 1970 SC of new and important matter of
406 has held that case may be said (b) The revisional jurisdiction can evidence, some apparent mistake or
to have been decided if the court also be exercised suo moto, while error on the face of the record or
adjudicates for the purpose of the appellate jurisdiction cannot be any other sufficient reason.
suit some right or obligation of exercised suo moto.
parties in controversy. (d) No appeal lies from an order
Explanation added to Section 115 of (c) The exercise of the revisional passed in the exercise of revisional
Code vide Amendment Act 1976 power is entirely discretionary and jurisdiction while the order following
makes it clear that expression "Case ordinarily High Court does take a the review application is appealable.
decided" includes any order made or technical view so as to interfere in
any order deciding an issue, in the every case while right of appeal is a (iii) Reference and Revision ; There
course of a suit or other proceeding. substantive right given by statute, are the following distinctions
In view of above discussion it is clear and every appeal is to be decided between reference and revision:
that order allowing or disallowing a according to law. (a) In reference, the case is referred
question to a witness is not case to the High Court by a court
decided. Therefore such an order (d) The High Court or the revisional subordinate to it as provided in
can not be challenged in Revision. court cannot, in exercise of its Section 113 of the Code of Civil
In Prem Bakshi and other v. Dharam revisional powers, set aside the Procedure, while the revision
Dev, AIR 2002 SC 559 application for findings of facts of subordinate application is moved by the party
amendment of plaint was filled to courts but a court of appeal can do concerned or the revisional court
bring to notice of court the so. can suomoto send for the case and
subsequent facts application examine the record.
allowed by Trial Court. High Court (d) An appeal abates if the legal
set aside that order in revision. representative of the deceased are (b) The ground of reference, the
When matter went in Supreme not brought on record within the entertainment of some reasonable
Court, while relying upon judgment time allowed by law while a revision doubt by the court trying the suit,
of Maj. S.S. Khanna's case AIR 1964 may not abate and the High Court appeal or executing the decree in
SC 497, it was observed - has a right to bring the proper respect of a question of law or usage
"The proviso to sub-section (1) of parties before the court at any time. having the force of law, while the
Section 115 puts a restriction on ground for revision relates to
power of High Court in as much as it (ii) Revision and Review ; There are jurisdiction, i.e., want of jurisdiction,
shall not under section 115 C.P.C. the following distinctions between failure to exercise jurisdiction vested
vary or reverse any order made or revision and review: in the court or its irregular exercise.
any order deciding a issue, in course (a) The power of revision is
of a suit or other proceedings except exercised by the High Court and in (iv) Reference and Review ; There
where (i) the order made would some cases, by the District Court, are the following distinctions in
have finally disposed of the suit or i.e., the superior court, while the reference and review:-
other proceedings or (ii) said order power of review is exercised by the (a) In reference, the subordinate
would occasion failure of justice or court which passed the decree or court refers the case to the High
cause irreparable injury to party, order. Court under Section 113 of the Code
against whom it is made... Order in of Civil Procedure, while in review an
question by which the amendment (b) The power of revision is application is made by the aggrieved
was allowed could not be said to conferred on the High Court only party in the court which passed the
have finally disposed of the case.... It and in some cases in some States, on order of judgement.
is almost inconceivable how mere the District Court also, but review
amendment of pleadings could can be made by any court which (b) The High Court only can decide
possibly cause failure of justice or passed the judgment or order. matters on reference while the
irreparable injury to any party. Thus power of review is to be exercised
order of High Court was held to be (c) Revisional powers can be by the court which passed the
outside the purview of revisional exercised only in cases in which no decree or order, as the case may be.
jurisdiction. appeal lies, but review can be made
even when appeal lies to the (c) Reference is made during the
Q. 83 Distinguish between Appeal Supreme Court. pendency of the suit, appeal or
Review and Reference and Revision execution proceedings, while
Ans. (i) Revision and Appeal - There (d) The grounds on which the application for review is made to the
are following main distinctions powers of revision and review can court after a decree or order is
between revision and appeal: be exercised are different. The passed.
(a) An appeal lies to a superior court ground for revision relates to
from every original decree unless jurisdiction, i.e., want of jurisdiction, (v) Reference and Appeal
(a) A right of appeal is a substantive
right conferred by law while the
power of reference is vested in the
court.

(b) Reference is always made to the

High Court, while the appeal is
preferred to a superior court which
need not necessarily be a High
Court.

(c) The grounds of appeal are wider

than the grounds of reference.

(d) Reference is made in a pending

suit, appeal or execution
proceedings in order to enable a
court to arrive at a correct
conclusion, while an appeal is
preferred after a decree or
appealable order is passed by the
court.

(vi) Review and Appeal ; There are

the following main distinctions
between review and appeal:
(a) An application for review lies to
the same court while an appeal lies
to a superior court.

(b) The grounds of review are

different from the grounds of
appeal. The grounds of appeal are
wider than the grounds of review.

(c) There is no second review

provided in the Code of Civil
Procedure, while there are
provisions for second appeal in
certain cases