CIVIL PROCEDURE CODE AND LIMITATION ACT

UNIT — I

Introduction

1. Distinction between procedural law and substantive law

2. History of the code, extent and its application, Definition

3. Preliminary - Sections 1-8 – Not in Syllabus

4. Jurisdiction of the Civil Courts- Kinds of jurisdiction

5. Suits of civil nature (Sec.9)

6. Doctrine of Res sub judice (Sections 10)

7. Doctrine o f Res judicata (Sections 11)

8. Bar on suits- ( Sections 12)

9. Foreign Judgment (Sections 13-14)

10. Place of Suits (Sections. 15 to 20)

11. Transfer of Cases (Sections. 22 to 25)

 1.Distinction between procedural law and substantive law

Laws can be divided into two groups: (1) Substantive law, and (2) Adjective or procedural law.
Whereas substantive law determines rights and liabilities of parties, adjective or procedural
law prescribes the practice, procedure and machinery for the enforcement of those rights and
liabilities.

Substantive laws

Substantive laws define the rights and responsibilities in civil law and crimes and punishments
in criminal law. Substantive laws are codified in legislated statutes or may be practised or
modified through precedent, especially in the common law system.

The function of substantive law is to define, create or confer substantive legal rights or legal
status or to impose and define the nature and extent of legal duties

Nature of substantive laws

Substantive laws deal with those areas of law which establish the rights and obligations of the
individuals and what individuals may or may not do.

 These laws have independent power to decide any case.

 Substantive laws dictate the legal context of any crime such as how the case will be
handled and what specific punishments to be given for any crime.
 Statutory laws or precedents in the common law system are substantive laws.
 Substantive laws deal with the legal relationship between individuals or the legal
relationship between an individual and the State.
 Substantive laws define and determine both the rights and obligations of the citizens to
be protected by law and the crimes or wrongs and also their remedies.
 Substantive laws determine the subject matter of litigation pertaining to the
administration of justice.
Procedural laws
Procedural laws prescribe procedure for the enforcement of rights and liabilities. The efficacy
of substantive laws, to a large extent, depends upon the quality of procedural laws. Unless the
procedure is simple, expeditious and inexpensive, substantive laws, however good are bound
to fail in achieving their object and reaching the goal.

Nature of procedural laws

 Procedural laws lay down the ways and means substantive laws can be enforced.
 They do not carry any independent powers to decide any case.
 These laws are enforced by the Acts of Parliament or implemented by the government.
 Apart from prescribing ways and means of enforcing rights, procedural laws also redress
for the infringement of rights, also describe the machinery for proceedings of any suit.
 A procedural law should always follow substantive law.

Procedural Law And Substantive Law

Procedural law is thus an adjunct or an accessory to substantive law. The two branches are
complementary to each other and interdependent, and the interplay between them often
conceals what is substantive law and what is procedural law. It is procedural law which puts
life into substantive law by providing a remedy and implements the well-known maxim ubi jus
ibi remedium.

Instances of substantive law

 The Indian Contract Act,
 The Transfer of Property Act,
 The Industrial Disputes Act,
 The Indian Penal Code
 Hindu Marriage Act
 Hindu Succession Act
Instances of procedural law
 The Indian Evidence Act,
 The Limitation Act,
 The Code of Civil Procedure,
 The Code of Criminal Procedure.

The Code of Civil Procedure is an adjective or procedural law. It neither creates nor takes
away any right. It is intended to regulate the procedure to be followed by civil courts
BASIS FOR
SUBSTANTIVE LAW PROCEDURAL LAW
COMPARISON
Procedural law is a law that
Substantive Law is the law that
specifies the practice, procedure
Meaning states the rights and obligations of
and machinery for the imposition
the parties concerned.
of rights and duties.
Governs How people should behave? How legal case flows?
Fixation of rights and duties of Ways and means for imposing
Concerned with
the citizens. substantive law.
Applicable to legal and non-legal
Context Applicable to legal context only
context.
Governance By act of parliament. By statutory law.
Rights of parties and punishment Initiation and prosecution of civil
Defines
for wrongdoer. and criminal lawsuits.
Related to Matters outside the court Matters inside the court
 2.HIsTORy Of THE CODE, ExTENT AND ITs APPLICATION

Historical Background

Till 1859, in India, there was no uniform codified law for the procedures to be followed in
Civil Courts. In those old days, under the British rule, there were Crown Courts in Presidency
towns and Provincial Courts in Mofussil.

 These Courts in Mofussil areas and Presidency towns were governed by different
systems of Civil procedure through various rules, regulations and special acts and those
were changed on time to time basis on the basis of circumstances and needs.
 1859 :- For the first time in 1859, a uniform civil procedure Code was introduced by
passing the Civil Procedure Code (Act VII of 1859). But this code could not serve the
purpose as this code was not made applicable to the Supreme Courts (Crown Courts
under the Royal Charter) and the Sadar Diwani Adalats (Principal Courts under the
Judicial Plan by the Governor General).
 In 1861, the Indian High Courts Act was passed and the Supreme Courts and Sadar
Diwani Adalats were abolished. Then the High Courts were established by replacing
the Supreme Courts at Madras, Bombay and Calcutta. Then the Civil Procedure Code
1859 made applicable to these newly established High Courts.
 1877 & 1882 - The Code of 1859 was amended regularly from time to time but still
there were many defects in it, and therefore, a new Code was enacted in 1877. Again,
another Code was enacted in 1882, which was also amended from time to time.

Civil Procedure Code 1908 and its amendments :-

In 1908, the present Code of Civil Procedure was enacted. It was amended by two important
Amendment Acts of 1951 and 1956. On the whole, this Code worked satisfactorily, though
there were some defects in it. The Law Commission in its various reports made many
recommendations, and after carefully considering them, the Government decided to bring
forward the Bill for the amendment of the Code of Civil Procedure, 1908, keeping in view,
inter alia, the following considerations:
 1. a litigant should get a fair trial in accordance with the accepted principles of natural
justice;
2. every effort should be made to expedite the disposal of civil suits and proceedings , so
that justice may not be delayed;
3. the procedure should not be complicated, and should, to the utmost extent possible,
ensure a fair deal to the poorer sections of the community who do not have the means
to engage a pleader to defend their cases.
Some of the important changes made by the Amendment Act, 1976 are as under:
i. Section 11: - The doctrine of res judicata is being made more effective.
ii. Section 25: - Power to transfer proceedings from one High Court to another is
given to the Supreme Court.
iii. Section 60:- Freedom from attachment of a portion of salary to all salaried
employees, is granted.
iv. Section 80 :- Provision of giving notice under Section 80 before the institution of
a suit against the Government or a public officer is made less stringent.
v. Order 41Restrictions are imposed on the right of appeal and revision.
vi. Order 8 :- Provisions are being made to ensure that written statements and
documents were filed without delay.
vii. New Order 32-A has been inserted to provide a special procedure in litigation
concerning the affairs of a family.
viii. The practice to pass preliminary and final decree in certain suits is abolished.
ix. Order 37 :- Scope of Summary Trials is substantially widened.
x. Order 33 :- Important changes have been made to provide relief to poorer
sections of the community.

The amendments made in 1976 were not found sufficient. With a view to dispose of civil
cases expeditiously, Justice Malimath Committee was appointed by the Government. In
pursuance of recommendations of the Committee, the Code was amended by the
Amendment Acts of 19996 and 2002
Important amendments made by Acts of 1999 and 2002 may be summarised thus:
 1. In several matters, such as issuing of summons, filing of written statement, amendment
of pleadings, production of documents, examination of witnesses, pronouncement of
judgments, preparation of decree, etc., a time-limit is prescribed;
2. Section 89 :- A new provision for settlement of disputes outside the court has been
introduced;
3. Order 17 :- Number of adjournments have been restricted;
4. Order 26 Rule 18(4):- A provision for recording of evidence by the Court
Commissioner has been made;
5. Endless arguments are sought to be shortened by (a) empowering the court to fix a
time-limit for oral arguments; and (b) by permit- ting written arguments to be placed on
record by the parties;
 A provision is made for filing of appeal in the court which passed the decree;
 Instituting of appeal against the judgment is allowed where the decree is not drawn up;
 Scope of First Appeal, Second Appeal, Letters Patent Appeal and Revision has been
curtailed.

All amendments made in the Code in 1999 as also in 2002 are intra vires and constitutional.
Amendments made by Acts of 2015- Commercial Courts
 The objective of Commercial Courts, and Commercial Appellate Division of High
Courts Act, 2015 (the Principal Act) was speedy resolution of commercial disputes.
 The “Commercial disputes” have been defined with an inclusive definition and it covers
almost all disputes arising out of the commercial activities
 The Act provides for a Schedule which amends certain provisions of CPC.
 These provisions are applicable to Commercial Disputes of Specified Value and the
Commercial Court shall follow the amended provision.
 The Act has clarified that the provisions of the CPC as amended by the Act would have
an overriding effect over any rules of the High Court, or the amendments to the CPC
made by a State Government.

Civil Procedure Code: Scheme

The Code has two parts and they are –

  the body of the Code containing IX Parts - 158 sections ; and
 the 5 Schedule,
o Schedule I- containing 51 Orders , Rules and Forms.
o Schedule II – Arbitration – Repealed
o Schedule III – Execution of Decree by Collectors – Repealed
o Schedule IV – Enactments Amended – Repealed
o Schedule V – Enactments Repealed – Repealed

 The sections deal with provisions of a substantive nature, laying down the general
principles of jurisdiction,
 The Orders in the (First) Schedule relates to the procedure and the method, manner
and mode in which the jurisdiction may be exercised.
 The Provisions of the Body of the code can be amended only by the legislature and
the Courts can not alter or amend the body of the code.
 The various High Courts are empowered to alter or add any rules in
the schedules under Section 122 to 127, 129, 130 and 131 and such new rules should
not be inconsistent with the provisions of the body of the code.

 The sections and the rules, therefore, must be read together and harmoniously
construed, but if the rules are inconsistent with the sections, the latter will prevail.

CPC - Meaning and Object

The Law relating to the practices and procedure to be followed in the Civil Courts is regulated
by the Code of Civil Procedure, 1908. The word CODE means ‘a systematic collection of
statutes, body of laws so arranged as to avoid inconsistency and overlapping ‘.
Section 2. Definitions :-
 Section 2(1):- “Code” includes rules;
 Section 2(18) :- “rules” means rules and forms contained in the First Schedule or made
under section 122 or section 125;
Section 122. Power of certain High Courts to make rules :- High Courts not being the Court
of a Judicial Commissioner may, from time to time after previous publication, make rules
regulating their own procedure and the procedure of the Civil Courts subjects to their
superintendence, and may by such rules annul, alter or add to all or any of the rules in the
First Schedule.

The Code is exhaustive on the matters directly dealt by it but it is comprehensive in other
issues. The framers of the code could not foresee the possible circumstances which may arise
in the future litigations and could not provide the procedure for such situations.

 Hence the framers of the code (legislature) provided inherent powers to the court to
meet such circumstances (where the code could not provide a procedure) according to
the principles of natural justice, equity and good conscience. Eg- The Karnataka Civil
Rules of Practice 1967

PRELIMINARY
SECTIONS 1-8

Preamble :-

An Act to consolidate and amend the laws relating to the procedure of the Courts of Civil
Judicature.

WHEREAS it is expedient to consolidate and amend the laws relating to the procedure of
the Courts of Civil Judicature

 The main object of this civil procedure code is to consolidate and amend the laws
relating to the procedure and practices followed in the Civil Courts in India.

 The Civil Procedure Code regulates every action in civil courts and the parties before
it till the execution of the degree and order.

Prem Lala Nahata Vs Chandi Prasad Sikaria:- The Code of Civil Procedure, 1908 as its
Preamble indicates, is an Act to consolidate and amend the laws relating to the procedure of
the courts of civil judicature. No doubts it is also deals with certain substantive rights. Preamble
vouchsafes, the object essentially is to consolidate the law relating to civil procedure.
Section 1 :- Extent and Application

The Civil Procedure Code was passed in 1908 and came into force from 1st January 1909.
The Code is applicable to the whole country except –

1. The State of Jammu and Kashmir - omitted by Act 34 of 2019,

2. The state of Nagaland and the tribal areas

There is also a provision that the concerned state governments may make the provisions of
this code applicable to the whole or part of the State of Nagaland or such tribal areas by
notification in the official gazette.

This code is applicable in the scheduled areas of the erstwhile State of Madras (Lakshadweep),
the East Godavari, West Godavari and Visakhapatnam agencies (Now in Andhra Pradesh
State).

By the Amendment Act of 1976, the application of the provisions of the Code have been
extended to Schedule Areas also.

Section 3 :- Subordination of Courts :- For the purposes of this Code, the District Court is
subordinate to the High Court, and every Civil Court of a grade inferior to that of a District
Court and every Court of Small Causes is subordinate to the High Court and District Court.

High Court

District Court

Civil Courts Small Causes Courts

P.S. Sathappan v. Andhra Bank Ltd

Powers of District Court vis-a-vis High Court :- A District Court cannot be compared to a
High Court which has special powers by virtue of Letters Patent. The District Court does not
get a right to entertain a further appeal as it does not have “any law for the time being in force”
which permits such an appeal. In any event there are no provisions which permit a larger
Bench of the District Court to sit in appeal against an order passed by a smaller Bench of that
court. Yet in the High Court, even under Section 104 read with Order 43, Rule 1 CPC, a
larger Bench can sit in appeal against an order of a Single Judge

Section 4 : Savings.—(1) In the absence of any specific provision to the contrary, nothing in
this Code shall be deemed to limit or otherwise affect any special or local law now in force or
any special jurisdiction or power conferred, or any special form of procedure prescribed, by
or under any other law for the time being in force.

As this Code is a general procedural law, it does not contradict with the local or special law in
force.

 In the event of any conflict between the civil procedure code and the special law, the
special law will prevail over the civil procedure code.

 In case the local or general law is silent on any matter, then the provisions of the civil
procedure code will prevail.

Kulwant Kaur v. Gurdial Singh Mann,

The moment such a law comes into conflict with Central legislation it becomes
inapplicable and is deemed to be repeated. Under Section 4(1) CPC special or local laws
are protected and not affected in the absence of any specific provision to the contrary. In
other words, special or local laws would be functional till any specific provision to the
contrary stands engrafted
Section 5. Application of the Code to Revenue Courts.—(1) Where any Revenue Courts are
governed by the provisions of this Code in those matters of procedure upon which any special
enactment applicable to them is silent, the State Government may, by notification in the
Official Gazette, declare that any portions of those provisions which are not expressly made
applicable by this Code shall not apply to those Courts, or shall only apply to them with such
modifications as the State Government may prescribe.

Section 5 :- When local Revenue or Rent Acts are silent on any particular matter of
procedure the provisions of the code would apply
Section 7 :- Provincial Small Cause Courts. :- This courts are not in existence at present

Section 8 :- Presidency Small Cause Courts. :- This courts are not in existence at present

4.Jurisdiction of the Civil Courts- Kinds of jurisdiction

Introduction :-
The term "jurisdiction" has not been defined in the Code. The word (juris- diction) is derived
from Latin terms "juris" and "dicto" which means "I speak by the law".
 Stated simply, "jurisdiction" means the power or authority of a court of law to hear and
determine a case or a matter. It is the power to entertain, deal with and decide a suit,
an action, petition or other proceeding.
Thus, jurisdiction of a court means the extent of the authority of a court to administer justice
prescribed with reference to the subject-matter, pecuniary value and local limits.

In Official Trustee v. Sachindra Nath, Before a court can be held to have jurisdiction to decide
a particular matter it must not only have jurisdiction to try the suit brought but must also have
the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in
relation to the subject-matter of the suit. Its jurisdiction must include the power to hear and
decide the question at issue, the authority to hear and decide the particular controversy that
has arisen between the parties.”

A.R. Antulay v. R.S. Nayak- Jurisdiction by Consent

The power to create or enlarge jurisdiction is legislative in character, so also the power to
confer a right of appeal or to take away right of appeal. Parliament alone can do it by law and
no court, whether superior or inferior or both combined, can enlarge the jurisdiction of a
court or divest a person of his rights of revision and appeal.

In the case of Kiran Singh v. Chaman Paswan':-

It is a fundamental principle well-established that a decree passed by a court without

jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is
sought to be enforced or relied upon, even at the stage of execution and even in collateral
proceedings. A defect of jurisdiction strikes at the very authority of the Court to pass any
decree, and such a defect cannot be cured even by consent of parties.

KINDS OF JURISDICTION
Jurisdiction can, as stated above, be classified into three categories, viz.,
 Jurisdiction over Subject matter – Section 9
 Territorial Jurisdiction – Section 15-20
 Pecuniary Jurisdiction – Section 6

Jurisdiction as to subject-matter
Different courts have been empowered to decide different types of suits. Certain courts are
precluded from entertaining certain suits. Thus, a Small Causes Court has no jurisdiction to
try suits for specific performance of a contract, partition of immovable property, foreclosure
or redemption of a mortgage, etc. Similarly, in respect of testamentary matters, divorce cases,
probate proceedings, insolvency proceedings, etc., only the District Judge or Civil Judge
(Senior Division) has jurisdiction.

Territorial or local jurisdiction

Section 16 to 20 of C.P.C deals with Territorial jurisdiction of a court. Every court has its own
local or territorial limits beyond which it cannot exercise its jurisdiction. These limits are fixed
by the Government. The District Judge has to exercise jurisdiction within his district and not
out- side it. The High Court has jurisdiction over the territory of a State within which it is
situate and not beyond it. Again, a court has no jurisdiction to try a suit for immovable property
situated beyond its local limits.

Pecuniary jurisdiction (Section 6)

Section 6 :- Pecuniary jurisdiction- Save in so far as is otherwise expressly provided, nothing
herein contained shall operate to give any Court jurisdiction over suits the amount or value of
the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction

The Code provides that a court will have jurisdiction only over those suits the amount or value
of the subject-matter of which does not exceed the pecuniary limits of its jurisdiction. Some
courts have unlimited pecuniary jurisdiction, e.g. High Courts and District Courts have no
pecuniary limitations. But there are other courts having jurisdiction to try suits up to a
particular amount.

Karnataka Civil Courts Act,1964

 Junior Civil Judge – up to 5 lakh – Section 17
 Senior Civil Judge Karnataka - more than Rs. 5,00,000 and above – Sec16
 Court of Small Causes at Bangalore : Up to Rs. 2,00,000/-
 Court of Small Causes at Karnataka :- Up to Rs. 1,00,000/-
 Appeal : - Section 19
o to the District Court, when the amount or value of the subject-matter does not
exceed ten lakh rupees
o to the High Court, in other cases
Amended in 2023 – But pending notification
 Junior Civil Judge – up to 15 lakh – Section 17
 Senior Civil Judge Karnataka - more than Rs. 15,00,000/-

Other kinds of jurisdiction

Civil and criminal jurisdiction
Civil jurisdiction is that which concerns and deals with disputes of a "civil nature". Criminal
jurisdiction, on the other hand, relates to crimes and punishes offenders.

Original and appellate jurisdiction

Original jurisdiction is jurisdiction inherent in, or conferred upon, a court of first instance. In
the exercise of that jurisdiction, a court of first instance decides suits, petitions or applications.
Appellate jurisdiction is the power or authority conferred upon a superior court to re-hear by
way of appeal, revision, etc., of causes which have been tried and decided by courts of original
jurisdiction.
 Munsiffs Courts, Courts of Civil Judges, Small Cause Courts are having original
jurisdiction only,
 while District Courts, High Courts have original as well as appellate jurisdiction.
Exclusive and concurrent jurisdiction
Exclusive :- Tribunal to try, deal with and decide a case. No other court or authority can
render a judgment or give a decision in the case or class of cases.
 Eg :- National Green Tribunal – NGT
 Debt Recovery Tribunal – DRT
 Central Administrative Tribunal – CAT
 National Company Law Tribunal – NCLT
Concurrent :- Concurrent or co-ordinate jurisdiction is jurisdiction which may be exercised
by different courts or authorities between the same parties, at the same time and over the same
subject-matter. It is, therefore, open to a litigant to invoke jurisdiction of any of such court or
authority.

Ex :- Maintenance Case can be filed in the following courts Concurrently

 Criminal Court – under Section 125 of CrPC
 Family Court – Section 24 of Hindu Marriage Act
 Civil Court – Section 12 (interim order)- The Gradience and Wards Act

General and special jurisdiction

General jurisdiction extends to all cases comprised within a class or classes of causes.
Special or limited jurisdiction, on the other hand, is jurisdiction which is confined to special,
particular or limited causes.
 This special courts in India are established under the Special Courts Act of 1979
 In 2017 - 12 Special Courts in States, for expeditious trial of criminal cases involving
MP/MLAs
 NIA Special Courts - XLIX Additional City Civil and Session Judge, Bangalore City

Legal and equitable jurisdiction – only in England

Legal jurisdiction is a jurisdiction exercised by Common Law Courts in England, while
equitable jurisdiction is a jurisdiction exercised by Equity Courts. Courts in India are courts
of both, law and equity.
Municipal and foreign jurisdiction
Municipal or domestic jurisdiction is a jurisdiction exercised by municipal courts, i.e. courts
in a country. Foreign jurisdiction means jurisdiction exercised by a court in a foreign country.
A judgment rendered or decision given by a foreign court is a "foreign judgment".- Section 13
& 14 of CPC

Sasan Power Ltd Vs. North American Coal Corporation

A civil court has the inherent power to decide the question whether it has jurisdiction to
entertain deal with and decide the matter which has come before it. But it is also duty of the
court to consider suo motu the bar of jurisdiction even if no such plea is raised

5. Suits of civil nature - Section 9

Section 9 :- Courts to try all civil suits unless barred :- The Courts shall (subject to the
provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of
which their cognizance is either expressly or impliedly barred.

[Explanation I].- A suit in which the right to property or to an office is contested is a suit of a
civil nature, notwithstanding that such right may depend entirely on the decision of questions
as to religious rites or ceremonies.

[Explanation ll].- For the purposes of this section, it is immaterial whether or not any fees are
attached to the office referred to in Explanation I or whether or not such office is attached to
a particular place

Jurisdiction refers to the power or authority of the court to decide or hear on a particular issue
or matter. The Jurisdiction of a case is decided on following grounds:

 Subject matter – Section 9

 Financial Value - Pecuniary - Section 6
 Geographical limits – Territorial – Section 15 -20
Two conditions need to be satisfied for a civil court to exert jurisdiction on a suit:
1. The suit must be civil nature
2. The cognizance should not have been impliedly or expressly barred for such a
suit.

Civil Suit :-
 A civil suit has not been defined in any Act. Any suit of a non-criminal nature which
ratifies or determines civil rights can be termed as a civil suit.
 The private rights and obligations of citizens are covered under the expression “suit of
civil nature.” A civil suit shall not adjudicate on a political or religious question.
 As can be observed from the explanations, suits of civil nature mean a suit that is
presented before a Civil Court for adjudication of a civil matter, more specifically to
determine the right of property or office.
 a suit which concerns a question of property is a suit of civil nature, irrespective of
whether such suits might include a question pertaining to religious ceremonies or rituals

Suits of civil nature: Illustrations. —The following are suits of a civil nature:
i. Suits relating to rights to property
ii. Suits for damages for civil wrongs
iii. Suits for specific performance of contracts or
iv. Suit for damages for breach of contracts
v. Suits for specific reliefs.
vi. Suits for restitution of conjugal rights
vii. Suits for dissolution of marriages
viii. Suits for rents
ix. Suits for or on accounts
x. Suits for rights to hereditary offices
xi. Suits against wrongful dismissals from service and for salaries, etc.

Suits not of civil nature: Illustrations. —The following are not suits of a civil nature:
i. Suits involving principally caste questions
ii. Suits involving purely religious rites or ceremonies
iii. Suits for recovery of voluntary payments or offerings
iv. Suits against expulsions from caste, etc.
Expressly or impliedly barred

Suits expressly barred – A suit barred by an enactment for the time being in force is said to
be expressly barred.

State of Vindhya Pradesh Vs Moradhwaj Singh - 1960 :- It is open to a competent legislature

to bar jurisdiction of civil courts with respect to a particular class of suits of a civil nature,
provided that, in doing so, it keeps itself within the field of legislation conferred on it and does
not contravene any provision of the Constitution.

Thus, matters falling within the exclusive jurisdiction of

 Revenue Courts or under the Code of Criminal Procedure or

 Matters dealt with by special tribunals under the relevant statutes, e.g. by Industrial
Tribunal, Election Tribunal, Revenue Tribunal, Rent Tribunal, Cooperative Tribunal,
Income Tax Tribunal, Motor Accidents Claims Tribunal, etc., or
 by domestic tribunals, e.g. Bar Council, Medical Council, University, Club, etc, are
expressly barred from the cognizance of a civil court

Chandrakant v. Municipal Corp of Ahmedabad, the Supreme Court stated: “It cannot be
disputed that the procedure followed by civil courts are too lengthy and consequently, are not
an efficacious forum for resolving the industrial disputes speedily. The power of the Industrial
Courts also is wide and such forums are empowered to grant adequate relief as they think just
and appropriate. It is in the interest of the workmen that their disputes, including the dispute
of illegal termination, are adjudicated upon by an industrial forum

Recovery of Debts Due to Banks and Financial Institutions Act, 1993 – It is evident from
Sections 17 and 18 of the Act that civil court’s jurisdiction is barred only in regard to
applications by a bank or a financial institution for recovery of its debts

Arbitration and Conciliation Act, 1996 – Where the parties have submitted their disputes to
the Arbitral Tribunal, the same disputes cannot be permitted to be agitated simultaneously in
a civil suit and the bar laid down under Section 5 of the Arbitration and Conciliation Act,
1996
Payment of Wages Act, 1936 – A civil court has no jurisdiction to entertain a suit by an
employee against his employer for recovery of wages, after the expiry of the period of
limitation prescribed by Section 15(2) of the Act for making an application to the Authority
appointed under the Act,

Motor Vehicles Act, 1988 – Section 175 of the Act bars the jurisdiction of the civil courts in
respect of claims for compensation on account of motor accident if the claims Tribunal is
constituted in the area.

Constitution of India 1950 – In view of Article 329, civil courts have no power to entertain a
suit which challenges the elections to Parliament or the State Assemblies

Suits impliedly barred –

A suit barred by general principles of law is said to be impliedly barred.

 Where the statute provides a specific remedy, it deprives the person of a remedy of any
other form. Similarly,
 even civil suits are barred from the cognizance of a civil court on the ground of public
policy.
 A suit is said to be impliedly barred when it is said to be excluded by general principles
of law.

Panjab SEB Vs Ashwani Kumar Where a specific remedy is given by a statute, it thereby
deprives the person who insists upon a remedy of any other form than that given by the statute.

Premier Automobiles Ltd Vs Kamlekar Shantaram Wadke :- Where an Act creates an

obligation and enforces its performance in a specified manner, that performance cannot be
enforced in any other manner.

Eg :- Consumer Protection Act, 1986 – It was held in CCI Chambers Coop. HSG. Society
Ltd. v. Development Credit Bank Ltd. that jurisdiction of consumer dispute redressal forum
cannot be relegated to civil court on the ground that the case involves detailed investigation.
Land Acquisition Act :- Civil court is barred to take up the case related to the matters deals
with not- following the procedure during acquisition

Brij Raj Sing Vs Laxman Singh :

Any person having cause of civil nature can approach the court and file a suit, unless it is
expressly or impliedly barred.

Rajasthan SRTC v. Bal Mukund Bairwa

Section 9 of the Code is an enforcement of fundamental principle of law laid down in the
maxim ubi jus ibi remedium. A litigant, thus having a grievance of a civil nature has a right to
institute a civil suit in a competent e civil court unless its cognizance is either it expressly or
impliedly barred by any statute. Civil courts can try all suits, unless barred by a statute, either
expressly or by necessary implication. Civil court being a court of plenary jurisdiction has the
power to determine its jurisdiction upon considering averments made in the plaint.

Shri Panch Nagar v. Purushottam Das , if any specific terms are lacking from any statute, to
find an implied dismissal of the civil courts’ jurisdiction enumerated in any design, plan, or
suitable provisions of the statute.

PMA Metropolitan vs M.M. Marthoma : In this case, the Supreme Court made a certain
observation regarding Section 9 of the Civil Procedure Code.
 Various phrases contained under Section 9 have both positive and negative
implications.
 The initial part debars opens the doors to try civil cases in the court, latter debars from
the entry of those cases which are expressly or impliedly barred.
 A religious matter which involves the right of property is a case of civil nature, the civil
court is competent to try the case. No court can refuse to try cases that are mentioned
in the description.
 The word Shall makes it a compulsory section.

State of AP vs Majeti Laxmikanth Rao : The Supreme Court laid down two tests about the
exclusion of jurisdiction of the civil court.
 1. There should be a legislative intent to exclude the jurisdiction of the civil court. It
could be either directly or indirectly, have to mention adequate reasons for
justification for the exclusion of the suit.
2. There should be an existence of an alternate remedy available for the claimant if not
the jurisdiction of the civil court cannot be excluded.

Cuse of Action :- The term “cause of action” has not been defined in the Code of Civil
Procedure, 1908. It has been left for the Judiciary to interpret. But in simplest terms, a “cause
of action” can be defined as a legal claim that an individual or entity can bring against another
person or entity.

Here are some landmark judgments of the Supreme Court of India on cause of action:

Rameshwar Prasad v. Union of India (2006): The Court held that a cause of action arises
when a person's legal right is infringed, and the infringement must be actionable in law.

T.N. State Transport Corporation v. S. Krishnamoorthy (2006): The Court established that a
cause of action is a bundle of facts which, when proved, entitle a party to relief.

State of Maharashtra v. Bhaskar Namdeo Lahane (2002): The Court clarified that a cause of
action must be based on a specific fact or set of facts, and not on a hypothetical or imaginary
situation.

Municipal Corporation of Delhi v. Gurnam Kaur (1989): The Court held that a cause of
action can arise from a breach of statutory duty.

M.C. Mehta v. Union of India (1987): The Court established that a cause of action can be
based on environmental pollution and harm to public health.

Kanaiyalal Lalchand Sachdev v. State of Maharashtra (1961): The Court clarified that a cause
of action must be based on a specific fact or set of facts, and not on a hypothetical or imaginary
situation.

These judgments have shaped the understanding and application of cause of action in Indian
law.
Conclusion: Section 9 at the threshold of the civil procedure code primarily deals with the
question of civil courts jurisdiction to entertain a cause. It lays down that subject to what are
contained in section 10, 11, 12, 13, 47, 83, 84, 91, 92 etc., civil court has jurisdiction to
entertain a suit of civil nature except when its cognisance expressly barred or barred by
necessary implication.

6.sECTION 10 – REs sUb JUDICE

10. Stay of Suit :-

“No court shall proceed with the trial of any suit in which

 the matter in issue is also directly and substantially in issue in a previously instituted suit
o between the same parties, or between parties under whom they or
o any of them claim litigating under the same title
o where such suit is pending in the same or
 any other court in India having jurisdiction to grant the relief claimed,
 or in any court beyond the limits of India established or continued by the
Central Government and having the jurisdiction, or
 before the Supreme Court.”

Explanation- The pendency of a suit in a foreign court does not preclude the Courts in India
from trying a suit founded on the same cause of action.

Why Section10 (Res sub Judice) :

The primary purpose of the Civil Procedure Code (CPC) is to ensure that when an individual's
legal rights are violated, they can rightfully seek a remedy through the courts. However, there
are instances where a litigant or their advocate may not obtain the desired order from the
court. In such cases, they might attempt to secure the same order by filing another suit, often
through questionable means.

 Section 10 of the Civil Procedure Code (CPC), known as the doctrine of Res Sub
Judice, is essential to prevent the multiplicity of suits and conflicting judgments, which
can arise when the same matter is being litigated simultaneously in different courts.
  The provision ensures that when a suit is already pending in a competent court, a
subsequent suit on the same matter between the same parties cannot proceed.
 This prevents unnecessary harassment of the parties and wastage of judicial resources.
 Without such a provision, a litigant or advocate dissatisfied with the outcome of a case
might attempt to file another suit in a different court, hoping for a more favorable
judgment.
 This not only clogs the judicial system but also creates the risk of contradictory verdicts,
undermining the integrity of the legal system.

Historically, even back in 1908 when the CPC was framed, the framers recognized the dangers
of such practices. They included Section 10 to maintain judicial discipline, ensure consistency
in legal proceedings, and uphold the principle that legal disputes should be resolved in a
singular, orderly manner.

Sub Judice refers to a Latin term essentially means a ‘matter that is still in consideration of the
Court’ or the suit is still pending

The object of Section 10

Objectives: -

1. To protect a person from multiplicity of proceedings.

2. To avoid a conflict of decisions by the court of concurrent jurisdiction.

3. To avert the inconvenience to the parties and give effect to the rule of res judicata.

4. Avoid wasting Court Resources

5. To avoid harassing the defendant,

6. To avoid delaying the court’s proceedings

Essential conditions for the application of this provision

1. Two suits- There must be two suits, one previously instituted and the other
subsequently instituted.

2. Directly and Substantially- The matter in issue in the subsequent suit must be
directly and substantially in issue in the previous suit.
 3. Same parties- The parties involved in both the suits must be the same.

4. Jurisdiction of Court- The previously instituted suit must be pending in a court in

India or a Court beyond the limits of India but established or continued by the
Central government of India.

5. Competent Court- The Court in which the previous suit is instituted must be
competent and have the jurisdiction to grant the relief claimed in the subsequent
suit.

6. The same title- The parties involved must be litigating under the same title.

Indian Bank Vs Maharashtra State Coop. Marketing Federation Ltd

The provisions of Section 10 are clear, definite and mandatory. If the conditions laid down in
the section are satisfied, it is the duty of the court to stay the proceedings. No discretion has
been left to the court. The court should even suo motu stay the second suit if it is satisfied that
the section applies." The rule also applies to appeals and revisions."

When Res-Subjudice is not applicable:-

i.Suits pending in foreign court: Explanation Explanation to Section 10 provides that there is
no bar on the power of an Indian court to try a subsequently instituted suit if the previously
instituted suit is pending in a foreign court.

If the previous suit is instituted in a foreign court then it will not bar Indian Courts from trying
subsequently instituted suit. Foreign Court is defined in Section 2(5) of the Code. It means
court situated outside India and not established by the authority of the Central Government.

ii. Interim Order: Section 10 does not preclude the courts from passing interim orders such
as grant of injunction, appointment of receivers, etc

P.C Jairath Vs Amrit Jairath

An order of stay of suit does not take away the power of the court from passing interim orders.
Hence, in a stayed suit, is open to the Court to make interim orders, such as, attachment
before judgment, temporary appointment of receiver, amendment of plaint or written
statement, etc.
iii. Summary Suits: It has been held that the bar of trial under Section 10 CPC should not be
strictly applied to “summary suits” under Order 37 of the Code.

In Indian Bank v. Maharashtra State Coop. Marketing Federation,

Keeping in view the object underlying Order 37 CPC, the Supreme Court held that the word
“trial” in Section 10 should be construed harmoniously keeping in view the object in Section
10 as also Order 37 of the Code.

iv. Criminal case - Bhushan Tin box industries Vs Punjab & Sind Bank - 1992

The provisions of Section 10 apply to civil suits only. They have no application where a party,
after filing a civil suit, also files a criminal complaint in competent criminal court. Hence, no
stay can be granted in a civil suit for recovery of money only because the plaintiff has initiated
criminal proceedings (e.g, under Section 138, Negotiable Instruments Act, 1881).

Guru Nath Saheb Vs Ved Prakash - 2013

There is no hard and fast rule that civil and criminal proceedings cannot go simultaneously.
It also cannot be said that in each and every case, prosecution of criminal case will embarrass
or prejudice the accused, and hence, civil proceedings should be stayed until disposal of
criminal case.

v. issues are different: Court cannot apply this section where point at issues are distinct and
different, or even where there are some issues in common and others are different issues.
This section is also not applicable between the suits where although the parties are same, but
the issues are not the same.

Consolidation of suits – P.P. Gupta Vs East Asiatic Co Since the main purpose of Section 10
is to avoid two conflicting decisions, a court in an appropriate case can pass an order of
consolidation of both the suit

In Practical :-

Appeal or revision :- An order granting or refusing to grant stay under section 10 - No appeal
under Section 96 of the code. But can file a revision petition under 115 of the code
Inherent power to stay:- Even where the provisions of Section 10 do not strictly apply, a civil
court has inherent power under Section 151 to stay a suit to achieve the ends of justice .
Similarly, court has inherent power to consolidate different suits in such cases .

Effect of contravention:- A decree is passed in contravention of Section 10 is not a nullity and

cannot be disregarded at the stage of execution. It is only the trial and not institution of
subsequent suit which is barred under Section 10. Thus, it only lays down a rule of procedure.
Thus, it lays down a rule of procedure, pure and simple, which can be waived by a party.

Gangaprasad Vs Banaspati

Hence, if the parties waive their right and expressly ask the court to proceed with the
subsequent suit, they cannot after wards challenge the validity of the subsequent proceedings

Guru Prasad Mohanty v. Bijoy Kumar Das :- it was laid down that if the parties give consent
or do not raise objection and waive their right, the court may decide the subsequent suit. No
objection thereafter can be raised by the aggrieved party.

Mandatory Nature :- The provisions of section 10 are definite and mandatory. If all the
conditions are satisfied then there is no discretion left on the part of court and the provisions
become mandatory. The court should even suo moto stay the second suit if it is satisfied that
this section is applicable.

Manohar Lal Chopra v. Sait Hiralal :- this section of the Code must apply mandatorily, with
no exceptions, unless and unless the Court lacks jurisdiction authority or the power to award
relief in a subsequent suit.

Escorts Const. Equipment Ltd. v. Action Const Equipments Ltd ., the requisites for invoking
Section 10 were repeated. This section’s provisions are exhaustive. They include explanations
as well as detailed and clear interpretations. These requirements are not optional; they must
be followed by the Courts when they proceed with the trial of a case. The provisions in Section
10 are very clear and unambiguous, with an open forum for interpretation, in order to
decrease the number of lawsuits involving the same subject matter and issues.
 7.DOCTRINE Of RES JUDICATA (SECTION 11)

No Court shall try any suit or issue in which

 the matter directly and substantially in issue has been directly and substantially in issue
in a former suit
 between the same parties, or between parties under whom they or any of them claim,
 litigating under the same title,
 in a Court competent to try such subsequent suit or the suit in which such issue has
been subsequently raised, and
 has been heard and finally decided by such Court.

Explanation I.-- The expression former suit shall denote a suit which has been decided prior
to a suit in question whether or not it was instituted prior thereto.

Explanation II.-- For the purposes of this section, the competence of a Court shall be
determined irrespective of any provisions as to a right of appeal from the decision of such
Court.

Explanation III.--The matter above referred to must in the former suit have been alleged by
one party and either denied or admitted, expressly or impliedly, by the other.

Explanation IV.-- Any matter which might and ought to have been made ground of defence
or attack in such former suit shall be deemed to have been a matter directly and substantially
in issue in such suit.

Explanation V.-- Any relief claimed in the plaint, which is not expressly granted by the decree,
shall for the purposes of this section, be deemed to have been refused.

Explanation VI.-- Where persons litigate bona fide in respect of a public right or of a private
right claimed in common for themselves and others, all persons interested in such right shall,
for the purposes of this section, be deemed to claim under the persons so litigating .

Explanation VII.-- The provisions of this section shall apply to a proceeding for the execution
of a decree and references in this section to any suit, issue or former suit shall be construed
as references, respectively, to a proceeding for the execution of the decree, question arising in
such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction,
competent to decide such issue, shall operate as res judicata in as subsequent suit,
notwithstanding that such Court of limited jurisdiction was not competent to try such
subsequent suit or the suit in which such issue has been subsequently raised.

Introduction

Section 11 of the Code of Civil Procedure embodies the doctrine of res judicata or the rule
of conclusiveness of a judgment, as to the points decided either of fact, or of law, or of fact
and law, in every subsequent suit between the same parties. It enacts that once a matter is
finally decided by a competent court, no party can be permitted to reopen it in a subsequent
litigation. In the absence of such a rule there will be no end to litigation and the parties would
be put to constant trouble, harassment and expenses.

Nature and scope

Res - subject matter or dispute and
Judicata - adjudged, decided or adjudicated.
Res Judicata - a matter adjudged or a dispute decided

The doctrine of res judicata is conceived in the larger public interest which requires that all
litigation must, sooner than latter, come to an end. It embodies the rule of conclusiveness and
operates as a bar to try the same issue once again. It thereby avoids vexatious litigation.

Object
The doctrine of res judicata is founded on three principles, which are non- negotiable in any
civilized system of law
(a) nemo debet bis vexari pro una et eadem causa - no man should be vexed twice for the
same cause.
(b) interest reipublicae ut sit finis litium - it is in the interest of the State that there should be
an end to a litigation
(c) res judicata pro veritate occipitur - a judicial decision must be accepted as correct.
Conditions
It is not every matter decided in a former suit that will operate as res judicata in a subsequent
suit. To constitute a matter as res judicata under Section 11, the following conditions must be
satisfied:
(I) The matter directly and substantially in issue in the subsequent suit or issue must
be the same matter which was directly and substantially in issue either actually in
the former suit (Explanation I).
(II) The former suit must have been a suit between the same parties or between
parties under whom they or any of them claim.
(III) Such parties must have been litigating under the same title in the former suit.
(IV) The court which decided the former suit must be a court competent to try the
subsequent suit or the suit in which such issue is subsequently raised.
(V) The matter directly and substantially in issue in the subsequent suit must have
been heard and finally decided by the court in the former suit.

Subject Matter in issue

A decision of a competent court on a matter in issue may be res judicata in another proceeding
between the same parties; the "matter in issue" may be an issue of fact, an issue of law, or one
of mixed law and fact.

Mathura Prasad Bajoo Jaiwal Vs Dossibai

The expression "matter in issue" means the rights litigated between the parties, i.e. the facts on
which the right is claimed and the law applicable to the determination of that issue. Such issue
may be an issue of fact, issue of law or mixed issue of law and fact.

Same parties
The second condition of res judicata is that the former suit must have been a suit between the
same parties or between the parties under whom they or any of them claim. when the parties
in the subsequent suit are different from the former suit, there is no res judicata.
 A "party" is a person whose name appears on the record at the time of the decision.
  A party may be a plaintiff or a defendant.

Same title
The third condition of res judicata is that the parties to the subsequent suit must have litigated
under the same title as in the former suit.
Mahadevappa somappa Vs Dharmappa Sanna
Same title means same capacity. Title refers to the capacity or interest of a party. Litigating
under the same title means that the demand should be of the same quality in the second suit
as was in the first suit. It has nothing to do with the cause of action on which he sues or is
sued.

Competent court
The fourth condition of res judicata is that the court which decided the former suit must have
been a court competent to try the subsequent suit,
Pandurang Mahadeo Vs Annaji Balwant
Thus, the decision in a previous suit by a court, not competent to try the subsequent suit, will
not operate as res judicata. The principle behind this condition is sound one, namely, that the
decision of the court of limited jurisdiction ought not to be final and binding on a court of
unlimited jurisdiction.
The expression "competent to try" means "competent to try the subsequent suit if
brought at the time the first suit was brought".

Heard and finally decided

The fifth and the final condition of res judicata is that the matter directly and substantially in
issue in the subsequent suit must have been heard and finally decided by a court in the former
suit.
 The section requires that there should be a final decision on which the court must have
exercised its judicial mind.
Kushal Pal Vs Mohan Lal
 In other words, the expression "heard and finally decided" means a matter on which
the court has exercised its judicial mind and has after argument and consideration come
 to a decision on a contested matter. It is essential that it should have been heard and
finally decided.
State of Maharashtra Vs National Construction Company
A matter can be said to have been heard and finally decided notwithstanding that the former
suit was disposed of
(i) ex parte; or
(ii) by failure to produce evidence (Order 17 Rule 3); or
(iii) by a decree on an award; or
(iv) by oath tendered under the Indian Oaths Act, 1873.
But if the suit is dismissed on a technical ground, such as non-joinder of necessary party, it
would not operate as res judicata.

Decision on merits - In order that a matter may be said to have been heard and finally decided,
the decision in the former suit must have been on merits.
Shivashankar Prasad Vs Baikunth Nath
Thus, if the former suit was dismissed by a court for want of jurisdiction, or for default of
plaintiff's appearance, or on the ground of non-joinder or misjoinder of parties, or on the
ground that the suit was not properly framed, or that it was premature, or that there was a
technical defect, the decision not being on merits, would not operate as res judicata in a
subsequent suit.

EXPLANATION

Explanation I - Former suit:

Explanation I to Section 11 provides that the expression "former suit" shall denote a suit which
has been decided prior to the suit in question whether or not it was instituted prior thereto.
Sheodan Singh Vs Daryao Kunwar
It is not the date on which the suit is filed that matters but the date on which the suit is decided;
so that even if a suit was filed later, it will be a former suit within the meaning of Explanation
I if it has been decided earlier.
Explanation II.- Right of Appeal :-
Explanation II to Section 11 makes it clear that for the purpose of res judicata, the competence
of the court shall be determined irrespective of any provision as to a right of appeal from the
decision of such court. No doubt, one of the tests for application of the doctrine of res judicata
is to ascertain whether a party aggrieved could challenge the finding by filing an appeal.
Ramesh Chandra Vs Shiv Charan Dass
The question whether there is a bar of res judicata does not depend on the existence of a right
of appeal but on the question whether the same issue, under the circumstances mentioned in
Section 11 of the Code, has been heard and finally decided.

Explanation III - Matter directly and substantially in issue:

A matter directly and substantially in issue in a former suit will operate as res judicata in a
subsequent suit.
 "Directly" means directly, at once, immediately, without intervention.
 "Substantially" means essentially, materially or in a substantial manner. It is something
short of certainty but indeed more than mere suspicion.
For Res Judicata to apply, the matter in question must have been raised by one party in the
former suit and either expressly or impliedly admitted or denied by the other party. This
means the issue must have been actively contested or agreed upon, either through explicit
statements or through the actions or circumstances in the case. Without such express or
implied admission or denial, Res Judicata cannot be invoked.

Krishna Chendra Vs Challa Ramanna

The question whether or not a matter is directly and substantially in issue would depend upon
whether a decision on such an issue would materially affect the decision of the suit. The
question has to be determined with reference to the plaint, written statement, issues framed
and judgment. No rule of universal application can be laid down and the question should be
decided on the facts of each case.
Explanation IV - Matter constructively in issue
Explanation IV to Section 11 by a deeming provision lays down that any matter which might
and ought to have been made a ground of defence or attack in the former suit, but which has
not been made a ground of attack or defence, shall be deemed to have been a matter directly
and substantially in issue in such suit.

P.K Vijayan Vs Kamalakshi Amma

The principle underlying Explanation IV is that where the parties have had an opportunity of
controverting a matter, that should be taken to be the same thing as if the matter had been
actually controverted and decided. The object of Explanation IV is to compel the plaintiff or
the defendant to take all the grounds of attack or defence which were open to him.

Explanation V - Relief claimed but not granted:

Explanation V to Section 11 provides that if a relief is claimed in a suit, but is not expressly
granted in the decree, it will be deemed to have been refused and the matter in respect of
which the relief is claimed will be res judicata.

Mysore SRTC Vs Babajan Conductor

But this explanation applies only when the relief claimed is substantial relief, and the court is
bound to grant it. The same principle will apply where the decree is silent as to the relief
claimed.

Explanation VI -Representative suit – Order 1 Rule 8

Explanation VI to section 11 deals with representative suit i.e suits instituted by or against a
person in his representative, as distinguished from individual capacity.
Raje Anandrao Vs Shamrao
This Explanation provides that where persons litigate bona fide in respect of a public right or
of a private right claimed in common for themselves and others, and all persons interested in
such right shall, for the purposes of Section 11, be deemed to claim under the persons so
litigating.
Explanation VII - Execution proceedings:
Explanation VII specifically provides that the provisions of Section 11 will directly apply to
execution proceedings also.

Jai Narain Vs Kedar Nath

Prior to the addition of explanation VII to section 11, the provisions thereof did not in terms
apply to the execution proceedings, but the general principal of Res judicata were held to be
applicable even to execution proceedings.

Explanation VIII - Competent court:

The expression "competent to try" means "competent to try the subsequent suit if brought at
the time the first suit was brought".
Jeevantha Vs Hanumantha
In other words, the relevant point of time for deciding the question of competence of the
court is the date when the former suit was brought and not the date when the subsequent suit
was filed.

Exceptions to the Plea of Res Judicata

Judgment in original suit obtained by the fraud – if a court thinks that the judgment of former
suit is obtained by the fraud, then the doctrine of the res judicata is not applied. – Satya Vs
Teja Singh

A different cause of action – Section 11 will not be applied when there is a different cause of
action in the subsequent suits. The court cannot bar a subsequent suit if it contains the
different cause of action.

Waiver of a decree of Res Judicata – Decree of Res Judicata is a plea in the bar which party
must waive. If a party did not raise the plea of res judicata then the matter will be decided
against him. It is the duty of an opposite party to make the court aware about the adjudication
of matter in former suit. If a party fails to do so, the matter is decided against him.
Court not competent to decide – When the former suit is decided by the court who has no
jurisdiction to decide the matter then the doctrine of res judicata is not applied to the
subsequent suit.

When there is a change in Law – When there is a change in the law and new laws bring new
rights to the parties then such rights are not barred by Section 11.

Jaisingh Vs Mamanchand

The cases must decided upon the law as it stands when judgment is pronounced and not upon
what it was at the date of previous suit the law having been altered in the meantime.

In Practice
Plea of res judicata
It is well settled that res judicata has to be pleaded and proved. For the Said purpose, the plea
of res judicata must be raised at the proper stage of the proceedings. The underlying object is
that the party sought to be affected by the bar of res judicata must have notice of the point
likely to be decided against him, and he must have an opportunity to put forward his defence
against such plea.

Burden of proof
The onus to prove res judicata is on the party who contends that an earlier decision operates
as res judicata between the parties. He has to establish the plea by placing on record pleadings
of the parties, issues raised and findings recorded in the judgment.
Test - Jaswant Singh Vs Custodian
In order to decide the question whether a subsequent proceeding is barred by res judicata it
is necessary to examine the question with reference to
i. forum or competence of the court;
ii. parties and their representatives;
iii. matters in issue;
iv. matters which ought to have been made ground for attack or defence in the former suit;
and
v. the final decision.
Difference between Res- Judicata and Res Sub-judice

Res Judicata Res Subjudice

The provisions relating to res judicata

The provisions relating to res subjudice
have been provided under section 11
have been provided under section 10 of
of the Civil Procedure Code, 1908.
the Civil Procedure Code, 1908

Res judicata is defined as 'Res' means Res subjudice is defined as the term 'Res'
'subject matter' and 'judicata' means means matter, cause, or litigation and
'adjudged' or 'decided'. Therefore, the term 'subjudice' means 'under judge',
together the meaning of res-judicata is or 'under the judgment'.
'a subject matter adjudged' or 'a subject
matter decided
The rule of res judicata is applicable The rules of res subjudice are applicable
only when the matter has already been when the subsequent suit relates to the
decided by the competent court of previous suit pending before the
jurisdiction. competent court of jurisdiction.

Res judicata prevents the trial of a suit

Whereas, res subjudice bars the trial of
or issue in which the matter in issue
a suit in which the matter is pending for
has already been decided in the
decision in the previous suit.
former suit

Conditions for Res Judicata:-

Conditions for Res Subjudice:-
1. The previous suit must have been
1. There must be two suits pending
decided by the competent court of
whereas one is previously instituted and
jurisdiction.
the other subsequently instituted.
2. The subject matter in issue in the
2. The subject matter in the issue in the
subsequent suit must be the same
subsequent suit must be directly and
which directly and substantially in
substantially in the issue in the previous
issue either actually or constructively
suit.
or ineffectually in the previous suit
3. The previous suit and subsequent suit
3. The previous suit and subsequent
must be between the same parties.
suit must be between the same parties.
 Res Judicata Res Subjudice

4. The court which decided the 4. The court in which the previous suit
previous suit must be a competent has been instituted must be a competent
court of jurisdiction. court of jurisdiction.

5. Both parties must have litigated 5. Both parties in the suit must be under
under the same title in the former suit the same title in both the suits

The primary purpose of the doctrine

The main purpose of the doctrine of res
of res judicata is to prevent the time
subjudice is to avoid the contradiction of
and resources of the court from being
decisions on a similar matter in issue.
misused.

Foreign Courts:
Res Judicata also applies to cases
The pendency of a suit in a foreign court
decided by foreign courts, subject to
does not preclude Indian courts from
the conditions under Section 13 of the
trying a suit based on the same cause of
CPC. This ensures that the finality of
action. This means that a case can
a judgment is respected even if
proceed in an Indian court even if it is
rendered in another country,
pending in a foreign jurisdiction.
provided it meets certain conditions.

Stay of Trial
Court should not try Under Res Subjudice, the trial of the
Once a suit is decided and becomes subsequent suit will be stayed until the
res judicata, the court shall not try a earlier suit is resolved. However, the
subsequent suit on the same issue case is not dismissed outright, but
between the same parties. temporarily halted to prevent
inconsistent rulings.
Former and subsequent suit
The principle of Res Judicata operates Res Subjudice is determined by the date
based on the date of judgment. Once of filing of the suits. The suit that is filed
a judgment is rendered, no first will proceed, and the second or
subsequent case on the same subject subsequent suit will be stayed until the
matter can proceed. earlier one is resolved.
 8.bAR TO fURTHER sUIT – sECTION 12

Section 12 :- Bar to further suit Where a plaintiff is precluded by rules from instituting a
further suit in respect of any particular cause of action, he shall not be entitled to institute a
suit in respect of such cause of action in any Court to which this Code applies.

The main object of this section is to prevent endless litigations and to prevent abuse of Legal
procedure...
The Code of Civil Procedure 1908 precludes a plaintiff from instituting a suit in the following
cases -
 Section 10 :- Where the suit is barred by Res-Sub-judice
 Section 11 :- Where is suit is barred by Res-judicata
 Section 21 :- No objection as to the place of suing, Pecuniary shall be allowed
by any appellate or Revisional Court unless such objection was taken in the Court of
first instance at the earliest possible opportunity and in all cases where issues or settled
at or before such settlement, and unless there has been a consequent failure of justice.
 Section 21-A :- Where a decree is sought to be challenged on objection as to territorial
(and/or pecuniary) jurisdiction of a Court
 Section 47(1) :- Where questions relate to execution, discharge or satisfaction of
decree All questions arising between the parties to the suit in which the decree was
passed, or their representatives, and relating to the execution, discharge or satisfaction
of the decree, shall be determined by the Court executing the decree and not by a
separate suit.
 Section 95(2) :- Compensation for obtaining arrest, attachment or injunction on
insufficient grounds :- An order determining any such application shall bar any suit for
compensation in respect of such arrest, attachment or injunction.
 Section 144(2) :- Application for restitution :- Where restitution can be
claimed No suit shall be instituted for the purpose of obtaining any restitution or other
relief which could be obtained by application under sub-section (1).
 Order 2 Rule 2 :- Frame of suit : Suit to include the whole claim :- Where there is
omission to sue in respect of part of claim by a plaintiff
  Order 9 Rule 9 :- Appearance of parties and consequence of non-appearance :-
Where a decree is passed against a plaintiff by default
 Order 11Rule 21(2):- Discovery and Inspection Where a suit is dismissed for non-
compliance with an order of Discovery.
 Order 22 Rule (9) :- Death, Marriage and Insolvency or Parties :- Where a suit is
abated or dismissed for not bringing LR’s on time no fresh suit shall be brought on the
same cause of action.
o Art-121 of Limitation Act – 90 days for set-aside abatement petition.
 Order 23 Rule 1(4) :- Withdrawal of suit or abandonment of part of claim Where the
plaintiff—
o (a) abandons any suit or part of claim under sub-rule (1), or
o (b) withdraws from a suit or part of a claim without the permission referred to in
sub-rule (3),

he shall be liable for such costs as the Court may award and shall be precluded from
instituting any fresh suit in respect of such subject-matter or such part of the claim.

Order 23 rule 3(A) :-Where a compromise decree is sought to be challenged on the

ground that the compromise was not lawful

9.Foreign Judgment - Sections 13-14

Section 2(5) “foreign Court” :- means a Court situate outside India and not established or
continued by the authority of the Central Government;

Section2(6) “foreign judgment” :- means the judgment of a foreign Court;

Section 13 - When foreign judgment not conclusive.—A foreign judgment shall be conclusive
as to any matter thereby directly adjudicated upon between the same parties or between parties
under whom they or any of them claim litigating under the same title except—

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

b. where it has not been given on the merits of the case;
 c. where it appears on the face of the proceedings to be founded on an incorrect
view of international law or a refusal to recognise the law of [India] in cases in
which such law is applicable;
d. where the proceedings in which the judgment was obtained are opposed to
natural justice;
e. where it has been obtained by fraud;
f. where it sustains a claim founded on a breach of any law in force in [India]

Section 14 - Presumption as to foreign judgments.—The Court shall presume upon the

production of any document purporting to be a certified copy of a foreign judgment, that such
judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears
on the record; but such presumption may be displaced by proving want of jurisdiction.

Foreign Judgments When Not Binding: Circumstances: Sec. 13

Under Sec. 13 of the Code, a foreign judgment is conclusive and will operate as res judicata
between the parties there to accept in the cases mentioned therein.

In other words, a foreign judgment is not conclusive as to any matter directly adjudicated
upon, if one of the conditions specified in clauses (a) to (f) of section 13 is satisfied and it will
then be open to a collateral attack.

In the following six cases, a foreign judgment shall not be conclusive:

a. Foreign not by a competent court;

b. Foreign judgment not on merits;
c. Foreign judgment against international or Indian law;
d. Foreign judgment opposed to natural justice;
e. Foreign judgment obtained by fraud;
f. Foreign judgment founded on a breach of Indian law.
 a. Foreign Judgment Not by A Competent Court

It is a fundamental principle of law that the judgment or order passed by the court, which has
no jurisdiction, is null and void. Thus, a judgment of a foreign court to be conclusive between
the parties must be a judgment pronounced by a court of competent jurisdiction . Such
judgment must be by a court competent both by the law of state.

 Thus if A sues B in a foreign court, and if the suit is dismissed, the decision will operate
as a bar to a fresh suit by A in India on the same cause of action.

Parvathy Amma Vs Rama Kurup:

It is well recognised rule of public international law that a court has a no jurisdiction to
entertain an action for the determination of the title or tot the right to the possession of any
immovable property, situated outside the jurisdiction.

b. Foreign Judgment not on Merits

In order to operate as res judicata, a foreign judgment must have been given on merits of the
case. A judgment is said to have been given on merits when, after taking evidence and after
applying his mind regarding the truth or falsity of the plaintiff's case, the Judge decides the
case one way or the other.

 Thus, when the suit is dismissed for default of appearance of the plaintiff; or
 for non-production of the document by the plaintiff even before the written statement
was filed by the defendant, or
 where the decree was passed in consequence of default of defendant in furnishing
security,

such judgments are not on merits

I & G Investment trust Vs Raja of Khalikote

The true test to determine the question as to whether the judgment has been given on merits
is to see whether it has been given as penalty for any conduct of the defendant or whether it
is based on a consideration of the truth or otherwise of the plaintiff case.
 c. Foreign Judgment Against International or Indian Law

A judgment based upon an incorrect view of international law or a refusal to recognize the law
of India where such law is applicable is not conclusive. But the mistake must be apparent on
the face of the proceedings.

International woollen mills Vs Standard Wool (UK) Ltd

Where in a suit instituted in England on the basis of a contract made in India, the English
court erroneously applied English law, the judgment of the court is covered by this clause in
as much as it is a general principle of Private International Law that the rights and liabilities of
the parties to a contract are governed by the place where the contract is made (lex loci
contractus).

d. Foreign Judgments opposed to Natural Justice

It is the essence of a judgment of a court that it must be obtained after due observance on the
judicial process, i.e., the court rendering the judgment must observe the minimum
requirements of natural justice - it must be composed of impartial persons, act fairly, without
bias, and in good faith; it must give reasonable notice to the parties to the dispute and afford
each party adequate opportunity of presenting his case. A judgment, which is the result of bias
or want of impartiality on the part of a judge, will be regarded as a nullity.

Vishwanathan Vs Abdul Majid

Bias on the part of the judge would also vitiate the proceeding on the grounds of principal of
natural justice. The burden however would be on the party setting up case of bias by proving
the same by cogent evidence.

e. Foreign Judgment Obtained By Fraud

It is a well-established principle of Private International Law that if a foreign judgment is

obtained by fraud, it will not operate as res judicata.

In the leading case of Satya v. Teja Singh, where a husband obtained a decree of divorce
against his wife from an American Court averring that he was domiciled in America.
Observing that the husband was not a bonafide resident or domicile of America, and he had
played fraud on a foreign court falsely representing to it incorrect jurisdictional fact, the
Supreme Court held that the decree was without jurisdiction and a nullity.

f. Foreign Judgment Founded on Breach of Indian Law

Where a foreign judgment is founded on a breach of any law in force in India, it would not
be enforced in India. The rules of Private International Law cannot be adopted mechanically
and blindly. Every case, which comes before an Indian Court, must be decided in accordance
with Indian law. It is implicit that the foreign law must not offend our public policy.

 a decree for divorce passed by a foreign court cannot be confirmed by an Indian court
if under the Indian law the marriage is indissoluble.

Sankaran Vs Lakshmi

A foreign judgment for gambling debt would presumably not be enforced in India

Section 14 :- Presumption As To Foreign Judgments:

Section 14 of the Code declares that the court shall presume, upon the production of any
document purporting to be a certified copy of a foreign judgment, that such judgment was
pronounced by a court of competent jurisdiction, unless the contrary appears on the record,
or is proved. However, if for admissibility of such copy any further condition is required to
be fulfilled, it can be admitted in evidence only if that condition is satisfied.

Thus, in Narsimha Rao v. Venkata Lakshmi, the Supreme Court held that mere production
of a Photostat copy of a decree of a foreign court is not sufficient. It is required to be certified
by a representative of the Central Government in America.

Vithalbhai Vs Lalbhai

Production of copy of the foreign judgment duly authorised is presumptive evidence that the
court which pronounce it had jurisdiction.
 10.PLACE Of sUINg -(sECTIONs. 15 TO 20)

Introduction :-
Suits may be of different types.
 They may relate to movable properties or immovable properties;
 They may be based on contracts or torts
 They may be matrimonial proceedings,
 suits for accounts and so on.
The jurisdiction of a court to entertain, deal with and decide a suit may be restricted by a
variety of circumstances. Sections 15 to 20 of the Code of Civil Procedure regulate the forum
for the institution of suits.

PECUNIARY JURISDICTION

Section 15 : Court in which suits to be instituted :-

Every suit shall be instituted in the Court of the lowest grade competent to try it.
It thus directs the suitor to institute a suit in the court of a lowest grade.

Nature and Scope

Section 15 states that of the Code refers to the pecuniary jurisdiction of the court. It every suit
should be instituted in the court of the lowest grade competent to try it. The rule laid down in
the section is a rule of procedure and does not affect the jurisdiction of the court. Hence, a
decree passed by a court of a higher grade cannot be said to be without jurisdiction.

Object
The object underlying this provision is twofold,
 to see that the courts of higher grades shall not be overburdened with suits; and
 to afford convenience to the parties and witnesses who may be examined in such suits.
 Not to curtail rights of appeal
Illustration
The Bombay, Calcutta and Madras High Courts are having original jurisdiction like City Civil
Courts and Small Causes Courts. The pecuniary jurisdiction of a Small Causes Court is, say,
up to Rs 50,000. Therefore, a suit to recover Rs 5000 as damages for breach of contract can
be tried by any of the courts.
But according to Section 15 of the Code, the suit must be filed in the lowest court, i.e. in the
Small Causes Court. But if the suit is filed in the City Civil Court and the decree is passed by
that court, it is not a nullity

Balgonda Vs Ramgonda :-
If the plaintiff deliberately undervalues or overvalues the claim for the purpose of choosing
the forum, the plaint cannot be said to be correctly valued and it is the duty of the court to
return it to be filed in the proper court. If it appears to the court that the valuation is falsely
made in the plaint for the purpose of avoiding the jurisdiction of the proper court, the court
may require the plaintiff to prove that the valuation is proper.

TERRITORIAL JURISDICTION
Types of suits
For the purpose of territorial jurisdiction of a court, suits may be divided into four classes,
viz.:
(a) Suits in respect of immovable property; Sec 16-18
(b) Suits for movable property; Sec 19
(c) Suits for compensation for wrong (tort); and Sec 19
(d) Other suits. Sec 20
Immovable property :-

As per the definition of Section3(26) of the General Clause Act and the Section 3 of Transfer
of property Act – the immovable property means and includes :
1. Land
2. Benefits to arise out of land and
3. Things attached to earth except standing timbers, growing crops and grass
Section 16 : Suits to be instituted where subject-matter situate

Subject to the pecuniary or other limitations prescribed by any law, suits

a) for the recovery of immovable property with or without rent or profits,

b) for the partition of immovable property

c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon

immovable property,

d) for the determination of any other right to or interest in immovable property,

e) for compensation for wrong to immovable property,

f) for the recovery of movable property actually under distraint or attachment,

shall be instituted in the Court within the local limits of whose jurisdiction the property is
situate

Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable
property held by or on behalf of the defendant, may where the relief sought can be entirely
obtained through his personal obedience be instituted either in the Court within the local
limits of whose jurisdiction the property is situate, or in the Court within the local limits of
whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or
personally works for gain.

Explanation.— In this section "property" means property situate in India.

Immovable property: Sections 16-18

Sections 16 to 18 deal with suits relating to immovable property. Clauses (a) to (e) of Section
16 deal with the following five kinds of suits,
i. Suits for recovery of immovable property
ii. Suits for partition of immovable property
iii. Suits for foreclosure, sale or redemption in case of mortgage of or charge upon
immovable property
iv. Suits for determination of any other right to or interest in immovable property;
and
 v. Suits for torts to immovable property.

These suits must be filed in the court within the local limits of whose jurisdiction the property
is situate. This is very clear and simple and does not create any difficulty.

Section 17. Suits for immovable property situate within jurisdiction of different Courts:
Where a suit is to obtain relief respecting, or compensation for wrong to, immovable
property situate within the jurisdiction of different Court, the suit my be instituted in any
Court within the local limits of whose jurisdiction any portion of the property is situate:

Provided that, in respect of the value of the subject matter of the suit, the entire claim is
cognizable by such Court.

Section 17 :- Immovable property situate within jurisdiction of different Courts Section 17

of the Code provides for this contingency. It says that where a suit is to obtain a relief
respecting, or damage for torts to, immovable property situate within the jurisdiction of
different courts,
 the suit can be filed in the court within the local limits of whose jurisdiction any portion
of the property is situate provided that the suit is within the pecuniary jurisdiction of
such court.
 This provision is intended for the benefit of suitors and to prevent multiplicity of suits.

Section 18. Place of institution of suit where local limits of jurisdiction of Courts are
uncertain

(1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which
of two or more Courts any immovable property is situate, any one of those Courts
may, if satisfied that there is ground for the alleged uncertainty, record a statement to
that effect and thereupon proceed to entertain and dispose of any suit relating to that
property, and its decree in the suit shall have the same effect as if the property were
situate within the local limits of its jurisdiction
 Provided that the suit is one with respect to which the Court is competent as regards the
nature and value of the suit to exercise jurisdiction.

(2) Where a statement has not been recorded under sub-section (1), and objection is
taken before an Appellate or Revisional Court that a decree or order in a suit relating
to such property was made by a Court not having jurisdiction where the property is
situate, the Appellate or Revisional Court shall not allow the objection unless in its
opinion there was, at the time of the institution of the suit, no reasonable ground for
uncertainty as to the Court having jurisdiction with respect thereto and there has been
a consequent failure of justice.

A case may, however, arise where it is not possible to say with certainty that the property is
situate within the jurisdiction of the one or the other of several courts. In such a case, one of
these courts, if it is satisfied that there is such uncertainty, may after recording a statement to
that effect proceed to entertain and dispose of the suit.'

Section 19: Suits for compensation for wrongs to person or movable Where a suit is for
compensation for wrong done to the person or to movable property, if the wrong was done
within the local limits of the jurisdiction of one Court and the defendant resides, or carries
on business, or personally works for gain, within the local limits of the jurisdiction of another
Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

Illustrations

(a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi.

(b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A

either in Calcutta or in Delhi.

Movable property: Section 19

It has been said, movables follow the person
A suit for wrong to movable property may be brought at the option of the plaintiff
 either at the place where the wrong is committed or
  where the defendant resides, carries on business or personally works for gain.
 Where such wrong consists of a series of acts, a suit can be filed at any place where any
of the acts has been committed.
 Similarly, where a wrongful act is committed at one place and the consequences ensue
at another place, a suit can be instituted at the option of the plaintiff where the action
took place or consequences ensued.

Section 20. Other suits to be instituted where defendants reside or cause of action arises.—
Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local
limits of whose jurisdiction—
a) the defendant, or each of the defendants where there are more than one, at the time of
the commencement of the suit, actually and voluntarily resides, or carries on business,
or personally works for gain; or
b) any of the defendants, where there are more than one, at the time of the
commencement of the suit, actually and voluntarily resides, or carries on business, or
personally works for gain, provided that in such case either the leave of the Court is
given, or the defendants who do not reside, or carry on business, or personally works
for gain, as aforesaid, acquiesce- (மறுப் பின்றி ஏற் றுக்ககொள் ; தடைக ொல் லொது ஒன்றுைன்

இணங் கிப்பபொ) in such institution; or

c) The cause of action, wholly or in part, arises.

Explanation :- A corporation shall be deemed to carry on business at its sole or principal office
in India or, in respect of any cause of action arising at any place where it has also a subordinate
office, at such place.

Laxman Prasad Vs Prodigy Electronics Ltd

Section 20 of the Code has been designed to secure that justice might be brought as near as
possible to every man’s hearthstone and that the defendant should not be put to the trouble
and expense of travelling long distances in order to defend himself in cases in which he may
be involved.
In Harshad Chiman Lal v. DLF Universal Ltd. the Supreme Court held that plain reading of
Section 20 of the Code leaves no room for doubt that itis a residuary provision and covers
those cases not falling within the limitations of Sections 15 to 19. The opening words of the
section (“Subject to the limitations aforesaid”) are significant and make it abundantly clear that
the section takes within its sweep all personal actions.

Sec 20 - person include corporation - New Moga Transport Company v. United India
Insurance Co. Ltd.- If a corporation has a principal office and also one or more subordinate
offices and cause of action arises at a place where it has a subordinate office then only that
place will have jurisdiction and not the place where it has its principal office

Raigarh jute and Textile Mills Ltd v New Haryana Transport Co it was stated that parties by
mutual agreement choosing one out of several courts having jurisdiction to try the suit, is not
against public policy.

Jurisdiction for social media defamation - Lankesh v Shivappa.

The Supreme Court has held that “territorial jurisdiction does not remain confined to the
place of actual defamation…the jurisdiction would be at both the places i.e. at the place where
the actual defamation takes place and the place where such defamatory material is transmitted
through website, telecast, etc.

PLACE OF SUING : GENERAL PROVISIONS

Nature of Suit Place of Suing

Every Suit Court of the lowest grade competent a try

it -(Section 15)
Suits for
 Recovery of
 Partition of Court within whose jurisdiction the
 Foreclosure, sale or redemption of Immovable property is situate - Section 16
mortgage of or charge upon
 Determination of any other right
to or interest in
 Nature of Suit Place of Suing
 Compensation for wrong to
immovable property

Recovery of movable property under Court within whose jurisdiction the

actual distraint or attachment Movable property is situate -Section 16

 Relief respecting Court within whose jurisdiction any portion

 Compensation for wrong of the property is situate, provided that the
- Immovable property situate within the entire claim is within the pecuniary
jurisdiction of different courts- Jurisdiction of such court (Section 17)

Where it is uncertain within the Any of those courts, provided that the
jurisdiction of which of two or more courts court has pecuniary jurisdiction and
any immovable property is situate- jurisdiction as regards the subject matter of
the suit (Section 18)

Compensation for wrong

 to person, or
 movable property-
In either of the courts at the option of the
if the wrong is done within the jurisdiction
plaintiff (Section 19)
of one court and the defendant resides or
carries on business or personally works for
gain within the jurisdiction of another
court-

 Where the cause of action wholly or

partly arises; or
 the defendant resides, carries on
Any other suit- business or personally works for
gain; or
 where there are two or more
defendants, where any one of them
resides, carries on business or
personally works for gain,
Case Laws :-
The Supreme Court has not only disapproved but strongly deprecated the practice and
increasing tendency on the part of the litigants of crossing a forum which may oblige them by
entertaining suits or petitions though they have no jurisdiction in the matter.

In Union of India v. Oswal Woollen Mills Ltd .", though the registered office of the company
was at Ludhiana (Punjab), a petition was filed against it in High Court of Calcutta and ex-parte
ad interim relief was obtained by the petitioner. The Supreme Court set aside the order and
observed that the action was taken as a part of manoeuvring legal battle.

In Morgan Stanley Mutual Fund v. Kartick Das , the Supreme Court stated, "There is an
increasing tendency on the part of litigants to indulge in speculative and vexatious litigation
and adventurism which the fora seem readily to oblige. We think such a tendency should be
curbed.

In ONGC v. Utpal Kumar Basus, though no cause of action had arisen in Calcutta, the High
Court entertained a writ petition and granted interim relief to the petitioner. Observing that it
was a “a great pity” that one of the premier High Courts had developed a tendency to assume
jurisdiction on unsustainable grounds, the Supreme Court said:
“We are greatly pained to say so but if we do not strongly deprecate the growing tendency we
will, we are afraid, be failing in our duty to the institution and the system of administration of
justice. We do hope that we will not have another occasion to deal with such a situation.
 Objections to jurisdiction (Sec 21 & 21A) –

Section 21. Objections to jurisdiction :

(1) No objection as to the place of suing shall be allowed by any appellate or Revisional
Court unless such objection was taken in the Court of first instance at the earliest possible
opportunity and in all cases where issues or settled at or before such settlement, and unless
there has been a consequent failure of justice.

(2) No objection as to the competence of a Court with reference to the pecuniary

limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such
objection was taken in the Court of first instance at the earliest possible opportunity, and in
all cases where issues are settled, at or before such settlement, and unless there has been a
consequent failure of justice.

(3) No objection as to the competence of the executing Court with reference to the
local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless
such objection was taken in the executing Court at the earliest possible opportunity, and
unless there has been a consequent failure of justice.

Objection to be raised at the earliest possible opportunity”:

This Section contemplates rule of convenience and based on the maxim vigilantibus non
dormentibus jura subvenient meaning thereby that the law supports only those who are
vigilant and not those who are dormant. As per this section, there are 3 types of objection:-

1) As to place of Suing [Section 21 (1)]

2) As to pecuniary Limits [Section 21 (2)]

3) As to territorial limits of executing court [Section 21 (3)]

In all those cases, objection can be allowed only if it was raised at the earliest possible
opportunity in the court of first instance and at the time of settlement of issues or before it
and unless there has been a consequent failure of justice.

 This means any suit decided by court having no pecuniary or territorial jurisdiction is
 not per se nullity and has to be tested through alleged irregularity in revision and
appellate courts as per Section 21

 1st opportunity to raise objection by whom? - Defendant through Written Statement

[O.VIII].

 This facility is available till Order XIV i.e. during the settlement of issues but not
afterward. (Framing of issues)

 Uless There has been a consequent failure of justice.

 Also all the above condition must co-exist.

Objection as to territorial jurisdiction (place of suing)-

Pathumma v. Kuntalan Kutty,. It is well established principle that neither consent nor waiver
nor acquiescence can confer jurisdiction upon a court incompetent to try such suit. It is
equally well settled that the objection as to the local jurisdiction of a court does not stand on
the same footing as an objection to the competence of a court to try such a case. It is a
fundamental rule that a decree of court without jurisdiction is a nullity; however objection as
to the local jurisdiction of a court can be waived. Moreover, Section 21 does not preclude
objection as to the place of suing in the appellate or revisional court, if the trial court has not
decided the suit on merits.

Objection as to Pecuniary Jurisdiction

In Hira Lal v. Kali Nath , the court held that objection as to the local jurisdiction of the court
can be waived. It is however submitted that the principle applicable to territorial defects will
pro tanto apply to pecuniary defects as well.

Objection as to subject-matter of jurisdiction

Harshad Chiman Lal Vs DLF Universal Ltd
A court cannot adjudicate upon a subject-matter, which does not fall within its province as
limited or defined by law. A jurisdiction as to the subject-matter of a suit is regarded as
essential, for jurisdiction over the subject-matter is a condition precedent or a sine qua non to
the acquisition of authority over the parties and the matter, and if the court does not possess
that jurisdiction, a judgment given, order made or decree passed is absolutely null and void,
which may be set aside in appeal, review or revision. Its validity can be challenged even in
collateral proceedings.

Section 21A. Bar on suit to set aside decree on objection as to place of suing No suit shall
lie challenging the validity of a decree passed in a former suit between the same parties, or
between the parties under whom they or any of them claim, litigating under the same title,
on any ground based on an objection as to the place of suing.

Explanation The expression "former suit" means a suit which has been decided prior to the
decision in the suit in which the validity of the decree is questioned, whether or not the
previously decided suit was instituted prior to the suit in which the validity of such decree is
questioned.

Bar on suit to set aside decree on objection as to place of suing [Section 21A]

Section 21 A was inserted by Amendment Act of 1976 which specifically provides that no
substantive suit shall lie challenging the validity of decree passed in a former suit or to set
aside such decree between the same parties or their legal representatives litigating under
same title on the ground based on an objection as to the place of suing. This rule is based
on public policy and similar to the rule of res judicata. However this provision is ambiguous,
defective and incomplete. It speaks only of place of suing but does not talks about pecuniary
limits. But the principle applicable to territorial defects will pro tanto apply to pecuniary
defects as well.

Subhash Mahadevasa Habib vs Nemasa Ambasa Dharmadas

The Distinction between lack of inherent jurisdiction and lack of pecuniary or territorial
jurisdictions explained in this case.

It provides that objections to the jurisdiction of a Court based on over- valuation or under-
valuation shall not be entertained by an appellate Court except in the manner and to the extent
mentioned in the section. It is a self-contained provision complete in itself, and no objection
to jurisdiction based on over-valuation or under-valuation can be raised otherwise than in
accordance with it. With reference to objections relating to territorial jurisdiction, section 21
of the Civil Procedure Code enacts that no objection to the place of suing should be allowed
by an appellate or revisional Court, unless there was a consequent failure of justice.

Transfer of Cases (Sections. 22 to 25)

Introduction

The Plaintiff is Dominus Litis and as such he has the right to choose his own forum and
normally this right of the plaintiff cannot be interfered with or curtailed either by the opposite
party or by the court. But CPC under section 22-25 gave powers to the court to transfer any
suit, appeal or other proceedings keeping in view of “Balance of convenience”

Pushpa Devi Vs Jai Narain

Justice can only be achieved if the court deal with both the parties present before it equally,
impartially and even-handedly. Hence, though a plaintiff has the right to choose his own
forum, with a view to administer justice fairly, impartially, and even-handedly, a court may
transfer a case from one court to some other court.

Section 22 :- Who May Apply

Power to transfer suits which may be instituted in more than one Court:
Sections 22 and 23 of the Code deal with the right of a defendant to apply for the transfer of
a suit. Where the plaintiff has the choice of two or more courts in which he may institute a
suit, a defendant, after notice to the other side, may at the earliest opportunity apply to a court
to have the suit transferred from the court in which it is filed to another court." such application
may be filed by any party to the suit, appeal or other proceeding.
Conditions
Before transfer is ordered under Section 22, two conditions must be satisfied, namely,
(i) the application must be made at the earliest possible opportunity and in all cases,
where issues are settled, at or before the settlement of issues;
(ii) notice must be given to the other side. The provision as to notice is mandatory.
Such notice may be given by the party making an application or by the court."

Section 23 :- To Which Court Application Lies

The Code specifies the court to which an application for transfer can be made:
(1) Where several courts having jurisdiction are subordinate to the same appellate
court, an application for transfer can be made to that appellate court;"
(2) Where such courts are subordinate to the same High Court, an application can be
made to that High Court," and
(3) Where such courts are subordinate to different High Courts, an application can be
made to the High Court within the local limits of whose jurisdiction, the court in which
the suit is instituted is situate
(4) The Supreme Court may transfer any suits, appeals or other proceedings from one
High Court to another High Court, or from one civil Court in the state to another civil
court in any other state.(- Section 25)

Indian Overseas Bank Vs Chemical Construction Company

In determining the balance of convenience for the trial of a suit, the court has to take into
consideration

1. convenience or inconvenience of the plaintiff and the right of the plaintiff to choose his
own forum;
2. convenience or inconvenience of the defendant;
3. convenience or inconvenience of the witnesses required for a proper trial of the suit;
4. convenience or inconvenience of a particular place of trial having regard to the nature
of the evidence on the main points involved in the suit and also having regard to the
doctrine of “forum convenience”; and
5. nature of issues in the suit.
Section 24 :- Power of High Court To Withdraw Pending Suit Before Lower Court Section
24 CPC empowers the High Court to withdraw any suit pending in any court subordinate to
it and try and dispose of the same either at the request of a party to such suit or on its own
motion (suo motu). In such case notice to the parties also may not be necessary.

But in such cases, the High Court is required to adopt a practical approach. Thus, where
questions of public importance are involved wherein a large number of persons are interested,
withdrawal of suit by the High Court cannot be faulted.

Durgesh Sharma Vs Jayashree

Section 24 embodies general power of transfer of any suit, appeal or other proceeding at any
stage either on an application of any party or by a court of its own motion. This power,
however, does not authorise a High Court to transfer any suit, appeal or other proceeding
from a court subordinate to that High Court to a court not subordinate to that High Court.’

Section 25 :- Power of The Supreme Court

Section 25 CPC, after the Amendment of 1976, empowers the Supreme Court to transfer any
suit, appeal or other proceedings from one High Court to another High Court or from one
civil court in one State to another civil court in any other State throughout the county if such
transfer is expedient in the interest of justice.

Durgesh Sharma Vs Jayashree

Section 25 confers very wide, plenary and extensive powers on the Supreme Court to transfer
any suit, appeal or other proceeding from one High Court to another High Court or from
one civil court in one State to another civil court in another State.

Transfer Allowed: Illustrative Cases

The following have been held to be sufficient grounds for transfer:
 reasonable apprehension in the mind of the litigant that he might not get justice in the
court in which the suit is pending;
  to avoid multiplicity of proceedings or conflicting decisions
 where the judge is interested in one party or prejudiced against the other
 where common questions of fact and law arise between the parties in two suits
 where balance of convenience requires, e.g. where the property is situate or parties or
their witnesses reside; or the account books are kept, etc
 where two persons have filed suits against each other in different courts on the same
cause of action;
 where transfer avoids delay and unnecessary expenses
 where important questions of law are involved; or a considerable section of the public
is interested in the litigation;

Transfer Not Allowed: Illustrative Cases

The following, on the other hand, have been held not to be sufficient grounds for transfer:
 mere fact that the opposite party is a man of influence in the locality;
 mere fact that the court is situate at a long distance from the residence of the applicant
 mere fact that the presiding officer belongs to a community rival to that of the applicant
 mere fact that the judge has decided a similar point in a previous case;
 mere balance of convenience to the applicant;
 refusal to grant adjournment
 prejudice of a judge against a party's pleader not likely to affect the party
 judge making adverse remarks regarding merits of the case
 allegation of apprehension against fair trial without furnishing particulars
 on counsel losing temper and using unparliamentary language, the judge ordering
adjournment, etc

P Ayyarnar Pothi Vs Supriya Ayyarnar Pothi

It was held that Bombay High court committed jurisdictional error by entertaining a transfer
application as it does not posses the power to transfer a case pending before a subordinate
court of another high court. Section 25 of the code of CPC clearly envisages that the power
relating to the inter-state transfer and transfer of cases from one high court to another high
court or its subordinate court is vested solely on this court and not on the high court.

Nahar Industrial Enterprises Ltd Vs Hongkong and Shanghai banking corporation :

INHERENT POWER OF TRANSFER -

Sections 22 to 25 CPC are exhaustive in nature which provide for transfer of suits, appeals
and other proceedings. Hence, inherent powers under Section 151 of the Code cannot be
exercised for transfer of a case

Conclusion

The power of transfer must be exercised with due care, caution and circumspection and in
the interests of justice. The court while deciding the question must bear in mind two
conflicting interests:

1. as a domjnus litis the right of the plaintiff to choose his own forum; and

2. the power and duty of the court to assure a fair trial and proper dispensation of justice.

The paramount consideration would be the requirement of justice. And if the ends of justice
demand transfer of a case, the court should not hesitate to act.

Maneka Sanjay Gandhi v. Rani Jethmalani observations of Krishna Iyer, J.

“Assurance of a fair trial is the first imperative of the dispensation of justice and the criterion
for the court to consider when a motion for transfer is made is not the hypersensitivity or
relative convenience of a party or easy availability of legal service or like mini-grievances.
Something more substantial, more compelling, more imperilling, from the point of view of
public justice and its attendant environment, is necessitous if the court is to exercise its power
of transfer. This is the cardinal principle although the circumstances may be myriad and vary
from case to case.
 PREVIOUs yEAR QUEsTION PAPER

UNIT – I

10 MARks

JURIsDICTION

1. Explain the kinds of jurisdictions.

2. Explain the different kinds of Jurisdiction of the civil Court.+1+1
3. What is meant by jurisdiction of the court ? Explain the various kinds of jurisdiction
with the help of decided cases.

Suits of Civil Nature & Place of Suing

4. What are suits of Civil nature. Explain with Illustration. +1+1+1+1

5. "Every civil suit must be instituted before a lowest civil court competent to try that suit'.
Discuss.+1+1+1
6. Discuss the provisions pertaining to Place of Suing under civil procedure code. +1 +1
+1

Res judicata & Res Sub judice

7. Explain Doctrine of 'Resjudicata'. State the conditions for applicability of the doctrine
of Resjudicata. +1 +1 +1 +1– State its object and principles +1
8. What is Res judicata ? Explain the conditions to constitute of Res judicata.
9. Discuss the provisions of the civil procedure code relating to "Res-subjudice"."
10. Explain Doctrine of Res subjudice+1
11. Explain the scope and object of res-subjudice.

Transfer of Suit

12. State the rules regarding 'Transfer of suits'.+1+1

13. Explain the Provisions of CPC in respects of Transfer of suit.+1

Others
 14. Briefly describe various stages of suit. +1+1
15. Define Foreign judgement, When it shall be conclusive and the state presumption
relating to foreign judgment.+1

sHORT NOTEs

1. Substantive and Procedural Laws

2. Kinds of Jurisdiction+1
3. Pecuniary jurisdiction of courts. +1+1
4. Territorial jurisdiction of courts+1
5. Suit of Civil Nature
6. Res-judicata.
7. Res subjudice. Or stay of suits +1+1+1+1
8. Bar on jurisdiction +1
9. Dilatory pleas
10. Foreign judgement. +1 +1 +1 +1+1+1
11. Place of suing+1
12. Discuss the rules in C-P-C relating to transfer of suits. +1+1
13. Transfer of cases.+1
14. Rajan has instituted a suit against his wife Rajani in the Civil Court at Dharwad. Rajani
is residing at Tumakuru with her parents. She has no income of her own and therefore,
she is finding it difficult to travel to Darwad frequently to attend the proceedings. Advise
her.
15. Ravi has instituted a suit against his wife Usha in the civil Court at Dharwad. Usha is
residing at Kalaburgi with her parents. She has no income of her own and therefore,
she is finding it difficult to travel to Dhanivad frequently to attend the proceedings.
Advise her.
16. Anil who is resident of Bellary publishes a newspaper containing statements defamatory
of Basant. The newspaper | is circulated in Bidar, Bellary, Kalaburgi and Raichur.
Basant 2 desires to institute suit against Anil. Where can he institute the suit ?
17. 'A' residing in Delhi publishes in Calcutta statements of defamation to 'B'. The
newspaper is circulated in Bombay, Madras and Raipur. 'B 'wants to file a suit against
'A'' Where he can sue? Advise him.
18. Shankar was the trustee of a trust. After Shankar’s death, Anil wrongfully takes the
possession of the trust property. Rohan the son of Shankar files a suit for recovery of
possession of the property against Anil as a legal heir and in his individual capacity. But
Rohan did not succeed. Then Rohan files another suit for recovery of trust property
against Anil in the capacity of a trustee, as he is appointed as a trustee after the death of
Shankar. Can Rohan succeed in this case ?
19. A’ sues ‘B’ in a foreign Court The suit is dismissed. Thereafter, ‘A’ wants to file the
same suit against ‘B’ in India | on the same cause of action. Whether he can institute
a suit — Decide.

20. A textile manufacturing company having its Head Office at Bangalore, had branch
offices at Hubli, Mysore and Mangalore. A dispute cropped up between Mr. Babu and
Prakash Transport Company in respect of transaction through Hubli office. Mr. Babu
files a suit in respect of the dispute against the company in the court of Mangalore. Is
the court of Mangalore is competent to decide the case ? Give reason.

21. Ramesh is a permanent resident of Belagavi and Ashok is a permanent resident of

Dharwad. Ramesh has taken a loan from Ashok at Belagavi. He has not repaid the loan
till today. Ashok has instituted a suit for the recovery of the said loan, against Ramesh
at Dharwad. Ramesh has raised objection as to the jurisdiction. Decide.

22. Subhash is a permanent resident of Ballary and Anand is a permanent resident of

Kolar. Subhash has made an agreement with Anand at Ballary for supply of certain
quantity _ of paper every month. The parties to the agreement have agreed that if any
dispute arises between them, the same shall be subject to the jurisdiction of Civil Court
at Tumkur. Decide the validity of the agreement,

23. Sunil is a permanent resident of Davanagere and Prakash is a permanent resident of

Shivamogga. Sunil has taken a loan from Prakash at Davanagere. He has not repaid the
 loan till today. Prakash has instituted a suit for the recovery of the said loan, against
Sunil at Shivamogga. Sunil has raised objection as to the jurisdiction. Decide

24. A suit was institutes by the plaintiff firm alleging infringement by the defendant
company for using the trade name on their product with the same combination as that
of plaintiff firm. A subsequent suit was institutes in a different court by the defendant
company stating the same allegation. Advice the plaintiff firm with the step to be taken
in accordance with law.

25. Rajesh has instituted a suit against Shekhar for recovery of Rs. 1 lakh, in the Court of
Senior Civil Judge. The suit is tried by the court and at the stage of arguments Shekhar
contends that the court has no jurisdiction to decide the case. Decide.

26. A suit was institutes by the plaintiff firm alleging infringement by the defendant
company for using the trade name on their product with the same combination as that
of plaintiff firm. A subsequent suit was institutes in a different court by the defendant
company stating the same allegation. Advice the plaintiff firm with the step to be taken
in accordance with law.