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
Substantive Law is the that specifies the
law that states the rights practice, procedure and
Meaning
and obligations of the machinery for the
parties concerned. imposition of rights and
duties.
Governs How people should How legal case flows?
 BASIS FOR
SUBSTANTIVE LAW PROCEDURAL LAW
COMPARISON
behave?
Concerned Fixation of rights and Ways and means for
with duties of the citizens. imposing substantive law.
Applicable to legal Applicable to legal and
Context
context only non-legal context.
Governance By act of parliament. By statutory law.
Rights of parties and Initiation and prosecution
Defines punishment for of civil and criminal
wrongdoer. 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

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

Res judicata is defined as Res subjudice is defined as the

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

Res judicata prevents the

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

Conditions for Res Conditions for Res

Judicata:- Subjudice:-

1. The previous suit must 1. There must be two suits

have been decided by the pending whereas one is
competent court of previously instituted and the
jurisdiction. other subsequently instituted.

2. The subject matter in 2. The subject matter in the

issue in the subsequent suit issue in the subsequent suit
must be the same which must be directly and
 Res Judicata Res Subjudice

directly and substantially in

issue either actually or substantially in the issue in the
constructively or ineffectually previous suit.
in the previous suit
3. The previous suit and
3. The previous suit and subsequent suit must be
subsequent suit must be between the same parties.
between the same parties.
4. The court in which the
4. The court which decided previous suit has been
the previous suit must be a instituted must be a
competent court of competent court of
jurisdiction. jurisdiction.

5. Both parties must have 5. Both parties in the suit must

litigated under the same title be under the same title in both
in the former suit the suits

The primary purpose of the The main purpose of the

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

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

Court should not try Stay of Trial

 Res Judicata Res Subjudice

Under Res Subjudice, the trial

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

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- (மறுப்பின்றி ஏற்றுக்கொள்;

தடைசொல்லாது ஒன்றுடன் இணங்கிப்போ) 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
 Foreclosure, sale or
Court within whose jurisdiction
redemption of mortgage of
the Immovable property is
or charge upon
situate - Section 16
 Determination of any other
right to or interest in
 Compensation for wrong to
immovable property

Recovery of movable property Court within whose jurisdiction

under actual distraint or the Movable property is situate -
attachment Section 16

Court within whose jurisdiction

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

Where it is uncertain within the

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

Compensation for wrong

 to person, or
 movable property-
if the wrong is done within the In either of the courts at the
jurisdiction of one court and the option of the plaintiff (Section 19)
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 business or
Any other suit-
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.