UNIT - I

PRELIMINARY

Introduction: The 'Code of Civil Procedure' is a procedure law, i.e., an adjective law. The Code neither creates nor
takes away any right. It only helps in proving or implementing the 'Substantive Law'. The Code contains 158
Sections and 51 Orders. The object of the Code is to consolidate (all the laws relating to the procedure to be adopted
by the Civil Courts) and amend the law relating to the procedure of Courts of Civil Procedure. The procedural laws
are always retrospective in operation unless there are good reasons to the contrary. The reason is that no one can
have a vested right in forms of procedure. The Code of Civil Procedure is not retrospective in operation.- The Code
is not exhaustive.

Extent, Applicability and Commencement: It extends to the whole of India, except the State of Jammu &
Kashmir, and the State of Nagaland and Tribal Areas. It also extends to the Amindivi Islands, the East Godavari
and Vishakhapatnam Agencies in the State of Arunachal Pradesh and the Union Territories of Lakshadweep. The
provisions of the Code have also been extended to the Schedule Areas by the amendment Act of 1976. This Act is
effective from 01 day of January 1909.

Composition of Code:

CODE OF CIVIL PROCEDURE

Body of Code Schedule-I

(Substantive Part which contains Procedural Part which contains
Section 158 providing procedure) 51 Orders and Rules

(Contains Model Forms of Pleadings, Processes, Decrees, Appeals, Exection Procedure etc.

The body of the Code containing sections is fundamental and cannot be amended except by the Legislature while
the First Schedule of the Code, containing Orders and Rules, can be amended by the High Courts. The sections and
Rules must be read together and harmoniously construed, but if rules are inconsistent with the sections, the latter
will prevail.

DEFINITIONS

Interpretation Clause: Some of the important words as they have been defined U/s 2 of the Code are as under:

Section -2: In this Act, unless there is anything repugnant in the subject or context-
Section–2 (1) “Code” includes rules.

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Section-2(2) "Decree" means the formal expression of an adjudication which, so far as regards the court expressing
it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit
and may be either Preliminary or final. It shall be deemed to include the rejection of a plaint and the determination
of any question within Section-144, but shall not include:-

a) any adjudication from which an appeal lies as an appeal from an order, or

b) any order for dismissal for default.

Explanation: A decree is preliminary where further proceedings have to be taken before the suit can be completely
disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and
partly final.

Decree [Section-2 (2)] and Order [Section-2 (14)]

Essential Elements of a decree: The decision of a Court can be termed as a "decree" upon the
satisfaction of the following elements:-

I. There must be an adjudication i.

II. Such adjudication must have been given in a suit ii.
III. It must have determined the rights of the parties iii with regard to all or any of the matter in
controversy in the suit.
IV. Such determination must be of a conclusive nature iv, and
V.
W.
X.
Y. There must be formal expression v of such adjudication.

a) An Adjudication: Adjudication means "the judicial determination of the matter in dispute". If there is no
judicial determination of any matter in dispute or such judicial determination is not by a Court, it is not a decree;
e.g., an order of dismissal of a suit in default for non appearance of parties, or of dismissal of an appeal for want
of prosecution are not decrees because they do not judicially deal with the matter in dispute.

b) In a Suit: Suit means a Civil proceeding instituted by the presentation of a Plaint. Thus, every suit is instituted
by the presentation of Plaint. Where there is no Civil suit, there is no decree; e.g., Rejection of an application
for leave to sue in forma pauper is is not a decree, because there cannot be a plaint in such case until the
application is granted.

Exception: But where in an enactment specific provisions have been made to treat the applications as suits,
then they are statutory suits and the decision given thereunder are, therefore, decrees; e.g., proceeding under
the Indian Succession Act, the Hindu Marriage Act, the Land Acquisition Act, the Arbitration Act, etc.

c) Rights of the parties: The adjudication must have determined the rights i.e., the substantive rights and not merely
procedural rights of the parties with regard to all or any of the matter in controversy in the suit.

"Rights of the parties" under section 2(2).

The rights of the parties inter se (between the parties) relating to status, limitation, jurisdictions, frame of

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suit. accounts, etc.

"Rights in matters in procedure" are not included in section 2(2); e.g.,

An order of dismissal for non-prosecution of an application for execution, or refusing leave to sue in forma pauperis, or
a mere right to sue, are not decrees as they do not determine the rights of the parties.

d) Conclusive Determination: The determination must be final and conclusive as regards the Court, which
passes it.

An interlocutory order which does not finally decide the rights of the parties is not a decree; e.g., An order
refusing an adjournment, or of striking out defence of a tenant under the relevant Rent Act, or an order passed
by the appellate Court under Order 41, rule 23 to decide some issues and remitting other issues to the trial Court
for determination are not decrees because they do not decide the rights of the parties conclusively.

But,
An order dismissing an appeal summarily under Order-41, or holding it to be not maintainable, or dismissal of
a suit for want of evidence or proof are decrees, because they conclusively decide the rights of the parties to the
suit.

e) Formal Expression: There must be a formal expression of such adjudication. The formal expression must be
deliberate and given in the manner provided by law.

Classes/ Types of Decrees

Decree

Preliminary Decree Final Decree Partly Preliminary & Partly

Final Decree

I. Preliminary Decree: Where an adjudication decides the rights of the parties with regard to all or any of the matters in
controversy in the suit, but does not completely dispose of the suit, it is a Preliminary
Decree.

A preliminary decree is only a stage in working out the rights of the parties, which are to be finally adjudicated
by a final decree.

Provisions in the Code for passing of the Preliminary Decrees:

a. Suits for possession and mesne profit; Order 20 Rule 12

b. Administrative Suits; Order 20 Rule 13
c. Suits for ,Pre-emption; Order 20 Rule 14
d. Suits for dissolution of Partnership; Order 20 Rule 15
e. Suits for accounts between principal and agent; Order 20 Rule 16
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 f. Suits for partition and separate possession; Order 20 Rule 18
g. Suits for foreclosure of a mortgage; Order 34 Rules 2-3

Besides above the Court has a power to pass a preliminary decree in cases not expressly provided in the Code.

In Phool Chand Vs Gopal Lal A.I.R. 1967, S.C. 1470, the Apex Court has decided that "C.P.C. does not prohibits
passing of more that one preliminary decree, if circumstances justify the same and it may be necessary to do so".

II. Final Decree : A decree may be final in two ways-

a. When no appeal is filled against the decree within the prescribed period or the matter has been decided by
the decree of the highest Court;

b. When the decree so far as regards the Court passing it, completely dispose of the suit.

"A final decree is one which completely disposes of the suit and finally settles all the questions in
controversy between the patties and nothing further remains to be decided thereafter.

Under the special circumstances, more than one final decrees can be passed in the same suit, e.g. Where two

or more causes of actions are joined together, there can be more than one final decree.

III.Partly Preliminary and Partly Final Decree: For example, in a suit for possession of immoveable property
with mesne profits, the Court-

a) decrees possession of the property, and

b) directs an enquiry into the mesne profits.

The former part of the decree is finally while the later part is only preliminary because the Final Decree for mesne
profits can be drawn only after enquiry and ascertainment of the due amount. In such a case, even though the decree
is only one, it is Partly Preliminary and Partly Final.`
Order: Section -2 (14)

An order means the formal expression of any decision of a Civil Court which is not a decree.
The adjudication of a court of law may be either Decree or Order; and cannot be both.

Difference Between Decree and Order

Basic of Distinction Decree Order

1. Origin A decree can only be passed in An order may originate from a

a suit which commenced by suit, by presentation of a plaint
presentation of plaint. or may arise from a proceeding
commenced by a petition or an
application.

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 2. Determination of Rights A decree is an adjudication A decree may be Preliminary or
conclusively determining the Partly Preliminary or Partly
rights of the parties with regard Final.
to all or any of the matters in
controversy.
3. Type of Decree Decree may be Preliminary or There cannot be a Preliminary
Party Preliminary or Party Final. Order.

4. No. of Order/ Decree In every suit, there can be only In case of suit or proceeding
one decree, except in certain number of order may be
suits, where two decrees, one passed.
Preliminary and one Final are
passed.
5. Appeal From Every decree is appealable Every order is not appealable.
unless otherwise expressly Only those orders are
provided. appealable as specified in the
Code i.e. Section 104 & Order
43 Rule 1.

6. Second Appeal A second appeal lies to the High No Second appeal lies in case
Court on Certain grounds from of appealable orders [Sec.
the decree passed in First 104(2)].
Appeal (Sec. 100). Thus there
may be two appeals.

2(3) "Decree-Holder" means any person in whose favour a decree has been passed or an order capable of execution
has been made.
2(5) "Foreign Court" means a Court situate outside India and not established or continued by the authority of
the Central Government;

2(6) "Foreign Judgment" means the judgment of a foreign Court;

2(8) "Judge" means the presiding officer of a Civil Court;
2(9) "Judgment" means the statement given by the Judge on the grounds of a decree or order.
2(10) "Judgment-Debtor" means any person against whom a decree has been passed or an order

capable of execution has been made.

2(11) "Legal Representative" means a person who in law represents the estate of a deceased person, and includes
any person who intermediates with the estate of the deceased and where a party sues or is sued in a representative
character the person on whom the estate devolves on the death of the party so suing or sued.

2(12) "Mesne Profits" of property means those profits which the person in wrongful possession of such property
actually received or might with ordinary diligence have received there from, together with interest on such profits,
but shall not include profits due to improvements made by the person in wrongful possession;

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The owner of property or any other person who is entitled to have possession of property has a right to the possession
of his property and when such person is deprived of such a right by any other person, person, then he is entitled not
only to receive back possession of that property but also to damages for wrongful possession from that person.

"Mesne Profits" of property means those profits which the person in wrongful possession of such property actually
received there from, together with interest on such profits, but shall not include profits due to improvements made
by the person in wrongful possession.1

The mesne profits are compensation, which is penal in nature.

A decree for mesne profits is to compensate the person who has been kept out of possession even though he was
entitled to possession thereof.

Against whom Mesne profits can be claimed?

The mesne profits can be claimed with regard to immoveable property only. Generally, person in wrongful
possession and enjoyment of immoveable property is liable for mesne profits.2

A decree for mesne profit can be passed against a tresspasser or a person against whom a decree for possession is
passed, or against a mortgagee in possession of property even after a decree for redemption is passed or against a
tenant holding over at will after a notice to quit has been served him.

To ascertain and provide mesne profits it is not what the plaintiff has lost by being out of possession but what the
defendant gained or might reasonably and with ordinary prudence have gained by such wrongful possession. Since
interest is an integral part of mesne profits, it has to be allowed in the computation of mesne profits itself. 3

2(14) "order" means the formal expression of any decision of a Civil Court which is not a decree;

2(16) "prescribed" means prescribed by rules;

2(18) "rules" means rules and forms contained .in the First Schedule or made under section 122 or section
125.

JURISDICTION OF SUITS OF CIVIL NATURE

Meaning: Jurisdiction means power of a Court to hear and decide a case. Jurisdiction of a Court means the power or the
extent of the authority of a Court to hear and determine a cause, to adjudicate and exercise any judicial power in relation
to it. The 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 or local limits. 4

Consent of Parties: It is well settled principle of law that consent cannot confer nor take away jurisdiction of a
Court. If the Court has no inherent jurisdiction, neither acquiescence nor waiver nor estoppels can create its But if
two or more Courts have jurisdiction to try the suit, the parties may agree among them that the suit should be brought
in one of those Courts and not in other, since there is no inherent lack of jurisdiction in the Court.

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The defect of jurisdiction cannot be cured by consent of parties and the judgment or order passed by a Court,
however precisely certain and technically correct, is null and void6 and its invalidity could be setup whenever and
wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings.7

“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."8

Lack of and illegal exercise of jurisdiction: "A Court has jurisdiction to decide wrong as well as right. If it decides
wrong, the wronged party can only take the course prescribed by law for setting matters right; and if that course is
not taken, the decision, however wrong, cannot be disturbed.” 9 A decree passed in the inherent lack of jurisdiction,
is a nullity, and that nullity can be set up in any collateral proceedings. But in case, the Court has jurisdiction but it
is irregularly exercised, the error can e remedied with the help of procedures prescribed by law for setting that error
right i.e. in appeal or revision and when there is no such remedy or not availed of, the decision is final. Where the
party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good
and will not be open to challenge on the basis of being a nullity.10

Decision as to jurisdiction: Whenever the jurisdiction of the Court is challenged, the Court has inherent jurisdiction
to decide the said question.11 The allegations made in plaint decide the forum and the jurisdiction does not depend
upon the defence taken by the defendants in the Written Statement.12

Kinds of jurisdiction: Jurisdiction of a Court may be classified into the following four categories-

i. Territorial jurisdiction or Local jurisdiction: Each Court has vested power to exercise jurisdiction
within its own territorial or local limits beyond which it cannot go.

ii. Pecuniary jurisdiction: The term 'Pecuniary jurisdiction' connotes the value of the subject matter of the suit.
The High Courts and District Courts have no pecuniary limitation but the other Courts have no such unlimited
pecuniary jurisdiction. The Court of Civil Judge (Jr. Div.) in the State of Uttar Pradesh can entertain the suits
where the value of the subject matter does not exceed Rs. 25,000/-.

iii. Jurisdiction as to subject matter of dispute: The different Courts have power to decide different kinds
of suit, like the Family Courts have jurisdiction to decide the suits/disputes relating to the matrimonial
matters.

iv. Original and appellate jurisdiction: In its original jurisdiction, a Court entertains and adjudicates suits
while in its appellate jurisdiction a Court decides appeals.

Suit of Civil Nature

Introduction: A litigant having a grievance of a civil nature has a right to institute a civil suit in a civil Court competent
to hear and decide the matter unless its cognizance is either expressly or impliedly barred by any statute. 13 It is a
fundamental principle of English law that whenever there is a right, there is a remedy. 14

The word "civil" relates to the community or to the policy and government of the citizens and subjects of a State. The
word "civil" indicates a state of society reduced to order and regular government; as against

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"criminal" it pertains to private rights and remedies of men and also used in contradistinction to military,
ecclesiastical, natural, or foreign.

Generally, civil action is an action wherein an issue is presented for trial, formed by averments of complaint and
denials of answer; or replication to new matter; or an adversary proceeding for declaration, enforcement, or
protection of a right or redressal or prevention of a wrong. It is a personal action which is instituted to compel
payment, or doing of some other thing which is purely civil.

Civil proceeding includes, at least, all proceedings affecting civil rights which are not criminal. It is a proceeding
in which some rights to property or other civil rights are involved, no matter whether the jurisdiction of the court is
ordinary, special or extraordinary. If the proceeding is in aid of establishing a civil right or for disputing one, it
would be a civil proceeding.

Meaning: According to S.9 a Civil Court has jurisdiction to try a suit, when the following two conditions are
satisfied:

i. the suit is of a Civil nature, and

ii. the cognizance of such a suit is neither expressly nor impliedly barred.

The word "civil" has not been defined in the Code. The word "civil" means "pertaining to the private rights and
remedies of a citizen as distinguished from Criminal, political, etc."15 The expression "Civil Nature" is wider than
the expression "Civil Proceedings".16 Thus a suit is of a civil nature if the private question therein relates to the
determination of a civil right and enforcement thereof. It is not the status of parties to the “suit, but the subject
matter of it which determines whether or not the suit is one of a civil nature. The expression is "suit of a civil nature
will cover private rights and obligations of a citizen. Political and religious questions are not covered by that
expression."

Explanation- 1 of sec. 9 says that 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.

Illustrations of suits of a civil nature: The followings are the illustrations of the suits of a 'Civil Nature'-

Suits relating to right to property, right to worship, taking out of religious procession, right to share in offerings,
suits for damages for civil wrong, for breach of contract, for a specific relief, for restitution of conjugal rights, for
dissolution of marriage, for rent. for or on accounts; etc., etc.

But the following are not suits of a civil nature:-

Suits involving principally caste questions, purely religious rights or ceremonies, for upholding mere dignity or
honour or for recovery of voluntarily payments or offerings.

Cognizance not barred: Court 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." 17 The cognizance of a suit may
be barred either expressly or impliedly.

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a. Suits expressly barred: A suit is said to be "expressly barred" when it is barred by any enactment for the time
being in force18 by a competent Legislature, while keeping itself within the field of legislation and without
contravening any provision of the constitution. Every presumption should be made in favour of the jurisdiction
of the Civil Court and the provisions of the exclusion of the jurisdiction of a Court must be strictly construed.19
It is well settled that a civil court has inherent power to decide its own jurisdiction.20

The matters falling within the exclusive jurisdiction of the Revenue Courts or under the Criminal Procedure
Code or the matters dealt with by special tribunals, under the relevant statutes; eg., Bar Council, Medical
Council, University, Club etc., are expressly barred from the cognizance of a civil court.

b. Suits impliedly barred: A suit is said to be "impliedly barred" when it is barred by general principle of law.
Where an Act creates an obligation and enforces the performance in a specified manner, that performance
cannot be enforced in any other manner, e.g., certain suits of a civil nature are barred from the cognizance of a
Civil Court on the grounds of public policy.21 Thus, no suit shall lie for recovery of costs incurred in Criminal
prosecution or for enforcement of a right upon a contract hit by Section 23 of Indian Contract Act, 1872 or
against any Judge for acts done in the course of his duties. A Civil court has no jurisdiction to adjudicate upon
disputes of political nature.

UNIT II
Res Sub Judice (Stay of Suit)
Section-10: Provides

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 between the same parties or between parties under whom they or any of them
claim, litigating under the same title, where such suit is pending in the same or any other court in India having
jurisdiction to grant the relief claimed, or in any other Court beyond the limits of India established or constituted
by the Central Government and having like 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.

Object: The object of S.10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel
suits between the same parties in respect of the same matter in issue.22 The section intends to prevent a person from
multiplicity of proceedings and to avoid a conflict of decisions.

Conditions: This section will apply where the following conditions are satisfied:

1) Presence of Two Suits: Where there are two suits, one previously instituted and the other subsequently
instituted.

2) Matter in Issue: The matter in issue in the subsequent suit must be directly and substantially in issue in
the previous suit.

3) Same Parties: Both the suits must be between the same parties or between their representatives.

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 4) Pendency of Suit: The previously instituted suit must be pending:-

a. in the same Court in which the subsequent suit is brought, or

b. in any other Court in India, or
c. in any Court beyond the limits of India established or empowered by the Central Government, or
d. before the Supreme Court.
e. Jurisdiction: The Court in which the previous suit is instituted must have jurisdiction to grant the
relief claimed in the subsequent suit.
f. Same Title: Such parties must be litigating under the same title in both the suits.

Provisions are Mandatory: The provisions contained in section-10 are mandatory and no discretion is left with
the Court. The order staying proceedings in the subsequent suit can be made at any stage.

A suit pending in a Foreign Court: 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.23

Inherent power to stay: A civil court has inherent power U/s 151 to stay a suit in the ends of justice or to consolidate
different suits between the same parties containing the same matter in issue substantially.

Decree passed in contravention of S.10: It is the trial and not the institution of the subsequent suit which is barred
under this section and therefore, a decree passed in contravention of S.10 is not a nullity, and the same can be
executed.

Consent of parties: The provision of Section 10 is a rule of procedure which can be waived by a party and where
the parties waive their right and expressly ask the Court to proceed with the subsequent suit, they cannot afterwards
challenge the validity of the proceedings.

Res-Judicata
(A case or suit already decided)
(The rule of Conclusiveness of judgment)

Meaning: "Res-judicata" consists of two Latin Words, 'Res' means a thing or a matter or a question and 'Judicata'
means adjudicated, adjudged or decided. Therefore, the expression 'Res-judicata'' means "a thing or matter already
adjudged or adjudicated or decided".

Res-judicata means "a final judicial decision pronounced by a judicial tribunal having competent jurisdiction over
the cause or matter in litigation, and over the parties thereto."24

The principle of Res judicata is based on the need of giving finality to judicial decisions.25 When a matter-whether
on a question of fact or a question of Law-has been decided between two parties in one suit or proceeding and the
decision is final, either because no appeal was taken to a higher Court or because the appeal was dismissed or no
appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the
matter again.26

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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 the suit in question
whether or not it was instituted prior thereto.

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

Explanation-III: The mater 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 suit.

Explanation-V: Any relief claimed in the plaint, which is not expressly granted by the degree, 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 purpose 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 a subsequent suit, notwithstanding that such Court of limited jurisdiction was
not competent to try such subsequent suit in which such issue has been subsequently raised,"

Object :
The doctrine of Res Judicata is based upon the following four maxims-

a. Nemo debet lis vexari pro una et eadem causa: no man should be vexed twice over for the: same cause;

b. Interest republicae ut sit finis Iitium: 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.

d. Res judicata pro veritate habetur: an adjudicated matter shall be deemed correct.

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Important Terms: To understand the doctrine of Res-judicata, it is essential to know the meaning of the
following terms-

Matters in Issue: The expression 'matter in issue' means the right litigated between the parties. The matters in issue
may be:

Actually in issue
Matters directly and Constructively in issue
Substantially in issue
Matters in issue :

Matters collaterally and incidentally in issue

Directly and substantially in issue: "A matter is 'directly and substantially in issue' if it is necessary to decide it
in order to adjudicate the principal issue and if the judgment is based upon that decision."

Directly: A matter cannot be said to be directly in issue if the judgment stands whether the fact exists or does not
exist.

Substantially: means essentially, materially or in a substantial manner. A matter can be said to be substantially in
issue if it is of importance for the decision of a case.

In order that a matter decided in a former suit may operate as res judicata in a subsequent suit, it must have been
directly and subsequently in issue in the former suit.
Illustration: A sues B for rent due. The defence of B is that no rent is due. Here the claim to rent is the matter in
respect of which the relief is claimed. The claim of the rent is, therefore a matter, directly and substantially in issue.

Actually in issue: Expl. III

A matter is actually in issue when it is in issue directly and substantially and a competent Court decides it on merit.
A matter is actually in issue when it is alleged by one party and denied or admitted by the other. (Expl. III)

Constructively in issue : Expl. IV

A matter can be said be constructively in issue when it "might and ought" to have been made a ground of defence
or attack in the former suit. A. matter is constructively in issue when it might and ought to have been made a ground
of defence or attack in the former suit. (Expl. IV)

Collaterally or incidentally in issue: "A matter is 'collaterally or incidentally in issue' if it is necessary to decide
it in order to grant relief to a plaintiff or to a defendant and the decision on such issue either way does not affect the
final judgment.

A collateral or incidental issue means an issue which is ancillary to the direct and substantive issue. It refers to a
matter in respect of which no relief is claimed and yet it is put in issue to enable the Court to adjudicate upon the
matter which is directly and substantially in issue. Decisions on the matters collateral and incidental to the main
issues in the case will not operate as res-judicata.

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Illustration: A sues B for the rent due: B pleads abatement of the rent on the ground that the actual area of the land
is less than that mentioned in the lease deed. The Court, however, finds the area greater than that shown in the lease
deed. The finding as to the excess area, being ancillary to the direct and substantial issue, is not res judicata.

It was held in re Gangabai Vs Chhabubai AIR 1982 SC 20 that in order to operate as res judicata the finding must
be one disposing of a matter directly and substantially in issue in the former suit and the issue should have been
heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the
purposes of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res
judicata.

The question whether a matter was directly and substantially in issue or merely collaterally or incidentally in issue
must be decided on the facts of each case.

In Vithal Yashwant v. Shikandar khan, AIR 1963 SC 385 the Court held that "It is well settled that if the final
decision in any matter at issue between the parties is based by a Court on its decision on more than one point - each
of which by itself would be sufficient for the ultimate decision- the decision on each of these points operates as res
judicata between the parties."

Illustrations: A sues B (i) - for a declaration of title to certain lands; and (ii) - for the rent of those lands. B denies
A's title to the lands and also contend that no rent is due. In this case, there are two matters in respect of which relief
is claimed, viz. (i) - the title to the lands; and (ii) the claim for rent. Both these matters are, therefore, directly and
substantially in issue.

Conditions to apply S.11: To constitute a matter as Res judicata U/s 11, the following conditions must be satisfied
-

a. Matter in Issue : 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 or constructively in the former suit.

b. Same Parties: The former suit must have been a suit between the same parties or between parties under
whom they or any of them claim.

c. Same Title: Such parties must have been litigating under the same title in the former suit.

d. Competent Court: The court which decides of the former suit must be a court competent to try the
subsequent suit or the suit in which such issue is subsequent raised.

e. Final decision of former suit: 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.

Constructive Res-Judicata
(Prayer for the same relief in the subsequent suit)

The doctrine of constructive Res-judicata is provided in the Explanation IV of section 11 which explains that where the
parties have had an opportunity of controverting a matter, that should be taken to be the same

13
thing as if the matter has been actually controverted and decided. The object of Expl. IV is to compel the plaintiff
or the defendant to take all the grounds of attack or defence which were open to him.

The rule of Constructive res judicata is an artificial form of res judicata, and provides that if a plea could have been taken
by a party in a proceeding between him and his opponent, he should not be permitted to take that plea against the same
party in a subsequent proceeding with reference to the same subject matter. That clearly is opposed to consideration of
Public Policy. Besides, if such a course is allowed to be adopted, the doctrine of finality of judgments pronounced by
Courts would also be materially affected.

In Forward Construction Co. Vs. Prabhat Mandai AIR 1986 S.C., the Court observed that "an adjudication is
conclusive and final not only as to the actual matter determined but as to every other matter which the parties might
and ought to have litigated and have had it decided as incidental to or essentially connected with the subject matter
of the litigation and every matter coming within the legitimate purview of the original action both in respect of the
matters of claim or defence."

The principle underlying Expl. 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. It is true that
where a matter has been constructively in issue it can not be said to have been actually heard and decided. It could
only be deemed to have been heard and decided.

In Workmen, C.P. Trust Vs Board of Trustees AIR 1978 S.C. 1283, the Supreme Court held that "The principle
of res judicata also comes into play when by the judgment and order a decision of a particular issue is implicit in it,
that is, it must be deemed to have been necessarily decided by implication; then also the principle of res judicata on
that issue is directly applicable. When any matter which might and ought to have been made a ground of defence
or attack in a former proceeding but was not so made then such a matter in the eye of law, to avoid multiplicity of
litigation and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as
decided".

lIIustrations27

1. A files a suit against B for declaration that he is entitled to certain lands as heir of C. The suit is dismissed. The
subsequent suit, claiming the same property on the ground of adverse possession, is barred by constructive res
judicata.

2. A files a suit against B to recover money on a pro-note. B contends that the promissory note was obtained from
him by undue influence. The objection is overruled and suit is decreed. B cannot challenge the promissory note
on the ground of coercion or fraud on subsequent suit, in as much as he ought to have taken that defence in the
former suit.

3. As a mortgagor A sues B for redemption of certain property alleging that he has mortgaged it with possession
to B. The mortgage is not proved and the suit is dismissed. A files another suit against B for possession of the
same property claiming to be the owner thereof. The suit is not barred.

4. A sues B for a declaration that he is entitled to certain property as an heir of X. The suit is dismissed. A files
another suit for injunctions on the ground that he had become an owner of the property by adverse possession.
This ground was available to him even at the time of previous suit but was not taken at that time. The subsequent
suit is barred.

14
Section 11 is not exhaustive

It has been held in Lal Chand Vs Radha Kishan A IRs. 1977 S C 789 by Chandrachud, J. that .........
Section 11 is not exhaustive and the principle which motivates that section can be extended to cases which do not
fall strictly within the letter of Law. The principle of res judicata is convinced in the larger public interest, which
requires that all litigation must, sooner than later, come to an end.

Waiver of Plea of res-judicata: The plea of res judicata is not one, which affects the jurisdiction of the Court. The
doctrine of res judicata belongs to the domain of procedure and the party may waive the plea of res judicata.
Similarly, the Court may decline to go into the question of res judicata on the ground that it has not been properly
raised in the proceedings or issues.

Res-judicata between co-defendants: A matter may operate as res-judicata between co- defendants and co-
plaintiffs if the following conditions are satisfied:

a. There must be conflict of interest between the co-defendants.

b. It must be necessary to decide that conflict in order to give relief to the plaintiff.
c. The question between the co- defendants must have been finally decided; and
d. The co- defendants were necessary or proper parties in the former suit.

Illustration: A sues B, C and D and in order to decide the claim of A, the Court has to interpret a will. The decision
regarding the construction of the will on rival claims of the defendants will operate as res-judicata in any subsequent
suit by any of the defendants against the rest.

Distinction between Res Sub – Judice (S.10) and Res- Judicata (S.11)

Res-judicata Res Sub-Judice

1. It applies to a matter adjudicated upon (Res- It applies to a matter pending trial (sub-Judice)
judicatum)

2. It bars the trial of a suit or an issue, which has It bars trial of a suit which is pending decision in a
been decided in a former suit. previously institute suit.

Res-judicata between different stages of the same proceedings: The principle of res- judicata applies in between
two stages in the same Iitigation28 ". It is well settled that principle of res-judicata can be invoked not only in separate
subsequent proceedings, they also get attracted in subsequent stage of the same proceedings. Once an order made
in the course of a proceeding becomes final, it would be binding at the subsequent stage of that proceeding …..”29

Res-judicata and Issue Estoppel:

Issue Estoppel: An issue or fact of law which has been determined in an earlier proceeding cannot be raised in a
subsequent proceeding. The court has few inherent power in the interest of finality not to allow a particular issue
which has already been litigated to be reopened.

15
There is a distinction between 'issue estoppel' and 'res-judicata'. Res-judicata debars a court from exercising its
jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine of issue estoppel
is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in
the later proceeding.30

Criminal Proceedings: The doctrine of res-judicata is of universal application, which applies even to criminal
proceedings. Once a person is acquitted or convicted by a competent criminal court, he cannot once again, be tried
for the same offence.

Writ Petitions: The General principle of res-judicata applies even to Writ petition filed under Article 32 of the
Constitution. This was held, first time, in re Sharma v Krishna Sinha AIR 1960 SC.

It would not be open to a party to ignore the judgment passed on a writ petition filed by a party under Article 226,
which is considered on merits as a contested matter and is dismissed, and again move the High Court under Article
226 or the Supreme Court under Article 32 on the same facts and for obtaining the same or similar orders or writs. 31

Writ Petition and Constructive Res-Judicata: The question whether the rule of constructive res-judicata can be
applied to writ petitions, was first answered by the Hon'ble Supreme Court in Amalgamated Coalfields Ltd. v.
Janapada Sabha AIR 1964 SC. It held that "In our opinion, constructive res-judicata which is a special and artificial
form of res-judicata enacted by Section 11 of the code should not generally be applied to writ petitions filed under
Article 32 or Article 226."

But in re Devilal v S. T.O. AIR 1965 SC, the Court had decided that the principle of constructive res-judicata also
applies to writ petitions.32 The principle of res-judicata (constructive res-judicata)33 is not applicable to the writ
petition of Hebeas Corpus.

Res-judicate and Estoppel: Res-judicata is really estoppel by verdict or estoppel by judgment (record). The rule
of constructive res-judicate is nothing else but a rule of estoppel. Even then, the doctrine of res-judicata differs in
essentials particulars from the doctrine of estoppel.

Distinction Between Res-judicata & Estoppel

1. Origin: It results from a decision of the Court.

Estoppel flows from the act of parties.

2. Basis : The rule is based upon public policy, viz that there should be an end to litigation. It bars
multiplicity of suits.

It proceeds upon the doctrine of equity; that he who by his conduct, has induced another to alter his position
to his disadvantage cannot turn round and take advantage of such alteration of the other's position.

3. Affects the jurisdiction : It ousts the jurisdiction of a court to try a case and precludes an enquiry in
limine.

In other words, estoppel prevents multiplicity of representations.

16
 4. Stop the Party: It prohibits a man averring the same thing twice in successive litigations. It is

only a rule of evidence and shuts the mouth of a party.

5. Binding effect on party/parties: This rule presumes conclusively the truth of the decision in the former
suit. It binds both the parties to a litigation.

Estoppel prevents him from saying one thing at one time and the opposite at another. The rule of estoppel
prevents a party from denying what he has once called the truth. i.e. estoppel binds only that party who
made the previous statement or showed the previous
conduct.

FOREIGN JUDGMENT
(A judgment of a Foreign Court)

Meaning: S.2(6) defines the foreign judgment as the "judgment of a foreign Court". The term foreign Court has
been defined in s. 2(5) as a Court situate outside India and not established or continued by the authority of the
Central Government. The examples of the foreign Courts are the Courts in England, Pakistan, Ceylon etc.

Object: The judgment of a foreign Court is enforced on the principle that where a Court of Competent Jurisdiction
has adjudicated upon a claim, a legal obligation arises to satisfy that claim. Section 13 embodies the principle of
res-judicata in foreign judgments. This provision embodies the principle of private International Law that a
judgment delivered by a foreign Court of competent jurisdiction can be
enforced in India.

Example: A sues B in a foreign Court. The suit is dismissed. The judgment will operate as a bar to a fresh suit by
A against B in India on the same cause of action.

Conclusive Nature: Section 13 of the Code provides that 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 as specified in clauses (a) to (f) of Sec. 13.

When Foreign Judgment Not Binding: According to Section 13 under the following six cases, a foreign judgment
shall not be conclusive -

1) Foreign Judgment not by a Competent Court;

2) Foreign Judgment not on merits;
3) Foreign Judgment against International or Indian Law;
4) Foreign Judgment opposed to Natural Justice; Foreign Judgment obtained by fraud;
5) Foreign Judgment founded on a breach of Indian Law;

Foreign Judgment Not by Competent Court: A foreign judgment must be pronounced by a Court of competent
jurisdiction and must be by a Court competent both by the law of the State which has constituted it and in an International
sense and it must have directly adjudicated upon the 'matter' which pleaded as res-

17
judicata. Only the judgment and not the reasons for the judgment is conclusive.

Foreign Judgment Not on Merits: A judgment is said to be given on merits when, after taking evidence and
application of mind, the Judges decide the case one-way or the other. The dismissal of suit for default of appearance
or non-production of the document by the plaintiff or passing of decree due to default of defendant in furnishing
security are not on merits and can not be conclusive.

Foreign Judgment Against International or Indian Law: The mistake of International or Indian Law must be
apparent on the face of the proceedings.

In Narsimha Rao V. Venkata Lakshmi (1991) 3 SCC, the Court held that "when a foreign judgment is founded
on a jurisdiction or on a ground not recognized by International or Indian Law, it is a judgment which is in defiance
of the law. Hence, it is not conclusive of the matter adjudicated therein and, therefore, not enforceable in this
country.

Foreign Judgment Opposed to Natural Justice: The judgment pronounced by a Foreign Court must e after the
observation of the judicial process, i.e., the Court rendering the Judgment must observe the minimum requirements
of Natural Justice. The judgment to be conclusive 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 to afford each party adequate
opportunity of presenting his case.

Foreign Judgment Obtained by Fraud: It is the fundamental Principle of Private international Law that a Foreign
Judgment is obtained by fraud, it will not operate as res-judicata. It is the settled preposition of law that a judgment or
decree obtained by playing fraud on the Court is a nullity and non est in the eye of law. Such a judgment/decree by the
first Court or by the highest Court has to be treated as a nullity by every Court, whether superior or inferior. It can be
challenged in any Court even in collateral proceedings.34

Foreign Judgment Founded On Breach of Indian Law: It is implicit that the foreign law and foreign judgment
would not offend against our public policy.35 Thus, a foreign judgment .for a gambling debt or on a claim which is
barred under the Law of Limitation in India is not conclusive.

Presumption as to Foreign Judgments: Section 14 provides that "the Court shall presume, upon the production
of any document purporting to be certified copy of the foreign judgment, that such judgment 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."

Enforcement of Foreign Judgments: A conclusive judgment U/s 13 can be enforced in India in the
following two ways:-

1) By Instituting a suit on such Foreign Judgment: A foreign judgment may be enforced by institution of a suit
within a period of 3 years36 from the date of the foreign judgment. The Apex Court has held in Roshan Lal V
Mohan Singh AIR 1975 SC that any decision of a foreign Court, Tribunal or Quasi-judicial authority is not
enforceable in a Country unless such decision is embodied in a decree of a Court of that Country; or

2) By Institution of Executing Proceedings: A foreign judgment may be enforced by way of execution proceedings
as per specified U/s 44-A of the Code and where all the conditions of S. 13 (a) to (f) are satisfied.

18
PLACE OF SUING (SECTION 15 TO 20)

The first and the important thing is the place of suing in order that a Court can entertain, deal with and decide a
suit. Section 15 to 20 of C.P.C. regulate the forum for the institution of suits.

Rules as to forum

The rules as to forum can be discussed under the following two heads-

a. Rules as to pecuniary jurisdiction: The rule about the pecuniary jurisdiction is that the "Every suit shall be
instituted in the court of the lowest grade competent to try it."37

The above rule is one of procedure only and not of jurisdiction and therefore, exercise of jurisdiction by. a Court
of higher grade than is competent to try the suit is mere irregularity covered by section 99 and the decree passed
by the Court is not nullity while the exercise of jurisdiction by a Court of lower grade than the one which is
competent to try it, is a nullity as being without jurisdiction.

b. Rules as to nature of the suit: Suits may be divided into three classes-

i. Suits in respect of immoveable property,- section 16 to 18

ii. Suit for compensation for wrong (for torts) to person or movable property,- Section 19, and

iii. Suits of other kinds, - section- 20.

1) Suits in respect of immoveable property: Sections 16 to 18 deal with suits relating to immoveable property.

Suits to be instituted where subject-matter situate38: Section 16 provides as Subject to the pecuniary or other
limitations prescribed by any law, suits for the recovery of immoveable property with or without rent or profits-

a. for the partition of immoveable property;

b. for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable
property;

c. for the determination of any other right to or interest in immovable property;

d. for compensation for wrong to immovable property,

e. for the recovery of immovable 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, immoveable property held by

19
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.

Suits for immoveable property situate within jurisdiction of different 39 courts: Section 17 provides as

"Where a suit is to obtain relief respecting, or compensation for wrong to, immoveable property situated within the
jurisdiction of different Courts, the suits may 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.

Place of institution of suit where local limits of jurisdiction of Courts are uncertain 40: Section 18 provides as

1. Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any
immoveable property is situate, anyone 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 suits to exercise jurisdiction.41

2. Where a statement has not been recorded U/s 18(1), and the objection is taken before an Appellate Court 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 Court or Revisional Court shall not allow the objection
unless in its opinion there was, at the time of 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.42

3. Suit for compensation for wrong to person or movable 43 property: Section 19 provides as Where a suit is
for compensation for wrong done to the person or to moveable 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.
3. Suits for other kinds44 : Section 20 provides as

20
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 gains, provided that in such case either the
leave of the Court is given, or the defendant who does not reside, or carry on business, or personally work for
gain, as aforesaid, acquiesces 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.

Illustration:

1) A is a tradesman in Calcutta, B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and
requests A to deliver them to the East India Railway Company. A delivers the goods accordingly in Calcutta. A
may sue B for the price of the goods either in Calcutta, where the cause of action has arisen or in Delhi, where
B carries on business.

2) A resides at Shimla, B at Calcutta and C at Delhi. A, Band C being together at Banaras, Band C make a joint
Promissory note payable on demand, and deliver it to A. A may sue Band C at Banaras, where the cause of
action arose,. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of
these case, if the non-resident defendant objects, the suit can not proceed without the leave of the Court.

Objections to Jurisdiction - Section 21

Objections as to territorial (Place of suing) jurisdiction 45: "No objection as to the place of suing shall be
allowed by any Appellate or Revisional Court unless -

a. Such objection was taken in the Court of first instance.

b. at the earliest possible opportunity and in all cases where issues are settled at or before such settlement,

c. and unless there has been consequent failure of justice”.

All these three conditions must co-exist.46

Objections as to pecuniary jurisdiction47: "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 less-

21
1) such objection was taken in the Court of first instance,

2) at the earliest possible opportunity and in all cases where issues are settled at or before such settlement,

3) and unless there has been a consequent failure of Justice."

All these three conditions must co-exist.48

Objections in execution proceedings49: "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-

a. such objection was taken in the executing Court,

b. at the earliest possible opportunity,
c. and unless there has been a consequent failure of Justice."

Lack of jurisdiction and Waiver of defect as to place of suing: It is well settled principle of law that neither
consent nor waiver nor acquiescence can confer jurisdiction upon a Court otherwise incompetent to try a suit.

An objection as to local jurisdiction of a Court can be waived and this principle has been given a statutory
recognition in Section 21 of the Code of Civil procedure50 and provides that the defect as to the place of suing under
15 to 20 may be waived.

Objections as to jurisdiction both territorial, pecuniary and technical are not open to consideration by an Appellate
Court unless there has been prejudice on merits51 and the section does not preclude objections as to the place of
suing being taken in the Appellate Court or Revisional Court, if the trial Court has not decided the suit on merits.

The mere lack of territorial or pecuniary jurisdiction is considered as merely technical and it can be waived in the
sense that if objection with regards to them is not taken at the earliest opportunity, at any stage, at or before the
settlement of issues, the same cannot be allowed to be raised at a later stage unless it is established that there is a
consequent failure of Justice.52

It is a fundamental principle that a decree passed by a Court without jurisdiction is a nullity and that invalidity could
be set up wherever it is sought to be enforced or relied upon even at the stage of execution. The defect of jurisdiction
whether it is pecuniary or territorial or whether it is in respect of the subject matter of the action strikes at the very
authority of the Court to pass any decree and such defect cannot be cured even by consent of parties. 53

Section 21 is an exception and defect as to place of suing, that is to say, the local venue for suits cognizable by
Courts under the Code may be waived under this section. Such waiver is limited to objections in the Appellate or
Revisional Courts.54

Bar of Fresh Suit - Section -21-A

Bar on suit to set-aside decree on objection as to place of suing: No suit shall lie challenging the

22
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.

References:
1. Section 2(12)
2. Lucy V. Mariappa, AI R 1979 SC
3. Mahant narayan Dasjee V. Tirupathi Devasthanam, AIR 1965 SC
4. Raja Soap Factory v S.P. Shantharaj, AIR 1965 SC
5. Chief Justice,A.P. V Dixitulu, AIR 1979 SC
6. Vasudev Modi Vs R. Rehman A I R 1970, S.C
7. Ibid'
8. Kiran Sing V Chaman Paswan AIR 1954 SC
9. Lord Hobhouse
10. Mathai Vs Varkey Varkey A.I.R., 1964 S.C
11. Bhatia Coop. Housing Society V D.C. Patel, AIR 1953 SC
12. Abdulla Vs Golappa, AIR 1985 S.C.
13. Abdul Wahid Khan Vs Bhawani, AIR 1966 S.C.
14. Ubi jus ibi remidium
15. Oxford English Dictionary
16. P.M.A. Metropolitan V M.M. Marthoma,AIR 1995 SC
17. Section 9
18. Umrao Singh V Bhagwan Singh, AIR 1956 SC
19. Abdul V Bhawani AIR 1966 SC
20. Bhatia Coop. Housing Society V D. C. Patel, AIR 1953 SC
21. Premier Automobiles V K. S. Wadke, AIR 1975 SC
22. National Institute of Mental Health & Neuro Science V Parameshwara 2004 AIOC Com:
23. Explanation to Section 10
24. Spencer Bower
25. Das Gupta, J. in Satyadhyan Ghosal V Deorajin Debi AIR 1960 SC
26. Supra Note 4
27. From C. K. Tackwani
28. Sayyadhan v. Deorajin Dabi AIR 1960 SC
29. Y. B. Patil v Y. L. Patil, (1976) 4 SCC 66, See also Prahlad Singh v Shukhdev Singh, (1987) 1 SCC 727
30. Bhanu Kumar Jain v Archana Kumar (SC) 2005 (1) AWC
31. Daryao Singh v State of U.P. AIR 1961 SC
32. See also State of U.P. v. Nawab Hussain AIR 1977 SC
33. Gautam Sarwar v. Union of India AIR 1967 SC.
34. Chengalvaraya Naidu V Jagannath, AIR 1994 SC, see also Satya V. Teja Singh AIR 1975 SC, Narsimha Rao
V. Venkata Lakshmi (1991) 3 SCC.
35. Satya V Teja Singh AIR 1975 SC 36.
36. Article 101, Limitation Act, 1963 7.
37. Section 15
38. Section' 16
39. Section 17
40. Section 18
41. Section 18 (1)
42. Section 18(2)
43. Section 19 44.
44. Section 20
45. Section 21 (1)
46. Pathumma V Kuntalan Kutty (1981) 2 SCC 589, Hindustan Sugar Mills Vs State of Rajeshan A I R 1981 S C
1683
47. Section 21(2)
48. Supra Note 2
49. Section 21 (3)
50. AIR 1982 Kant. 77, AIR 1966 SC 634
51. Kiran Singh V Chaman Paswan, AIR 1954, SC 340
52. Krishnappa M. R. V Bhagyalaxmamma AIR 1982 Kant. 77
53. Jagdish Vs Smt. Prem Lata 1999(2) Civil L J 266 Raj. (A I R 1954, S C 340 Relied on)
54. Behrin Petroleum Co. Ltd. Vs P. J. Pappu & Another, (1967) S C J 49; A I R 1966 S C 634

UNIT III

Institution of Suit: (Section 26 and Order 4)

Section 26(1), CPC says that every suit shall be instituted by the presentation of a plaint or in such other manner as
may be prescribed. Sub-section (2) provides that in every plaint, facts shall be proved by affidavit. The procedural
framework relating to the institution of a suit is give below:
i. Preparing the plaint
ii. Choosing the proper place of suing
iii. Presentation of the plaint

PARTIES TO SUIT (ORDER-I)

Order I of the code provides the provisions with respect to the parties to suits and joinder, misjoinder and non-
joinder of parties.

Joinder of Plaintiff (Rule 1)

Joinder of Parties :
Joinder of Defendant (Rule 3)

The question of joinder of parties arises only when' an act is done by two or more persons (Joinder of defendants)
or it affects two or more persons (Joinder of plaintiffs)

1. Joinder of Plaintiffs: (Rule 1) : All persons may be joined in one suit as plaintiffs where-
 a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or
transactions is alleged to exist in such persons, whether jointly, severally or in the alternative; and

b) if such persons brought separate suits, any common question of law or fact would arise.

2. Joinder of Defendants: Rule (3) : All persons may be joined in one suit as defendants where-

1) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions
is alleged to exist against such persons, whether jointly, severally or in the alternative; and

2) if separate suits were brought against such persons, any common question of law or fact would arise.

Example: An Altercation takes place between P on the one hand and Q and R on the other.

I. P assaults Q and R simultaneously. Q and R may join as plaintiffs in one suit for damages against P for that
tortorious act.

II. Q and R simultaneously assault P. P may join Q and R as defendants in one suit for damages for that tortorious
act.

Joinder of parties liable on same contract1: The plaintiff may, at his option, join as parties to the same suit
all or any of the persons severally, or jointly and severally, liable on anyone contract, including parties to bills of
exchange, hundis and promissory notes.

When plaintiff in doubt from whom redress is to be sought 2: Where the plaintiff is in doubt as to the person
from whom he is entitled to obtain redress, he may join two or more defendants in order that the question as to
which of the defendants is liable, and to what extent, may be determined as between all parties.

Separate trial3: Where it appears to the Court that any joinder of plaintiffs or defendants may embarrass delay the
trial of the suit, the Court may order separate trials or make such other order as may be expedient in the interest of
justice.

Judgment for or against one or more of joint parties: The Court may give judgment for one or more the plaintiffs
as may be found to entitle to relief4 or as against one or more of the defendants as may found to be liable.5

Necessary and Proper Parties: A necessary party is one whose presence is indispensable to the constitution of the
suit, against whom the relief is sought and without whom no effective order can be made. In the absence of a
necessary party no decree can be passed, while a proper party is one in whose absence an effective order can be
made, but whose presence is required for a complete and all decision on the question involved in the proceeding. In
the absence of a proper party a decree can passed so far as it relates to the parties to the suit.

Example: In a petition for compensation in a road accident case, the claimant(s) may join three parties i.e. owner(s)
of the vehicle(s) involved in the accident, the insurer(s) of the vehicle(s) and the driver(s) of the vehicle as
respondents. The owner(s) and insurer(s), if any, are the necessary parties along with the claimant(s), while the
driver(s) of the vehicle(s) involved is/are the formal/proper party whose presence enables the Court to adjudicate
more "effectually and completely' but even in his absence the Court can pass a decree.

Non Joinder or misjoinder of parties6: Non joinder means not joining proper or necessary parties to the suits,
while mis-joinder is a state of joining two or more persons (whether necessary or proper parties) as plaintiffs or
defendants on one suit in contravention of rules 1 and rule 3 respectively. As a general rule, a suit shall not be
dismissed only on the ground of non-joinder or mis-joinder of parties, except in a case of non-joinder of a necessary
party.

Objections as to non joinder or misjoinder of parties: As has been provided in Rule 13 of Order I, all objections
on the grounds of non-joinder or mis-joinder of parties shall be taken at the earliest possible opportunity and, in all
cases in which issues are settled, at or before such settlement, unless the ground of objection has subsequently
arisen, and any such objection not so taken shall be deemed to have been waived.

Suit in the Name of Wrong parties7: Order I, Rule 10 deals with the cases of stricking out, addition or
substitution of parties.

Addition or substitution of plaintiff 8: In a case where a suit has been instituted in the name of wrong person as
plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the court may at any
stage of the suit, on the satisfaction of the following:

27
 i) that the suit has been instituted through a bona fide mistake, and

ii) that it is necessary for the determination of the real matters in dispute, order any other person to
be added or substituted as plaintiff upon such terms as the Court may think just.

Court may strike out or add parties: The court may at any stage of the proceedings, either upon or without the
application of either party, and on such terms as may appear to the court to be just, order at the name of any party
improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to
have been joined, whether as plaintiff .or defendant, or whose presence before the court may be necessary in order
to enable the court+ effectually and completely to adjudicate upon and settle all the questions involved in the suit,
be added.9

No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any
disability without his consent, i.e., no person can be added as a plaintiff without his consent.

On the addition of a defendant, the plaint shall unless the Court otherwise directs be amended and amended copies
of the plaint shall be served on the new defendant and if required, on the original defendant. 10 All proceedings as
against any person added as defendant shall be deemed to have begun only on the service of the summons.11

Representative Suit:
(Order I, Rule 8)

Introduction: Order I, Rule 8 is an exception to the general rule that all persons interested in a suit ought to be
joined as parties to it, in order to finally adjudicate all the matters involved therein and to avoid the fresh litigations
over the same matters.

The rule is an enabling provision and neither compels anyone to represent many if, by himself, he has a right to suit
nor vest a right of suit in a person and if he, by himself, has no right to sue, he cannot proceed to sue on behalf of
others by invoking the aid of Order 1 Rule 8 C.P.C.

Meaning: Representative Suit may be defined as under "A representative suit is a suit filed by or against one or
more persons on behalf of themselves and others having the same interest in the suit."

Who may sue or defend in Representative Capacity12:

1) Where there are numerous persons having the same interests in one suit

a. One or more of such persons may, with the permission of the Court, sue or be sued, or may defend such
suit, on behalf of, or for the benefit of, all persons so interested;

b. the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on
behalf of, or for the benefit of, all persons so interested.

2) The Court shall, in every case where a permission or direction is given under Sub-rule (1), at the plaintiff expense,
give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason
of number of persons or any other cause, such service is not reasonably

28
 practicable, by public advertisement, as the Court in each case may direct.

3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under Sub-rule (1), may
apply to the Court to be made a party to such suit.

4) No part of the claim in any such suit shall be abandoned under Sub- rule (1) and no such suit shall be withdrawn
under Sub- rule (3) of Rule (1) of Order XXIII, Le. Order 23, Rule 1 (3), and no agreement, compromise or
satisfaction shall be recorded in any such suit under Rule (3) of that Order, unless the Court has given, at the
plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2).

5) Where any person suing or defending in any suit does not proceed with due diligence in the suit or defence,
the Court may substitute in his place any other person having the same interest in the suit.

6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit,
the suit is instituted, or defended, as the case may be.

Explanation: For the purpose of determining whether the persons who sue or are sued, or defend, have the same
interest in one suit, it is not necessary to establish that such persons have the same cause of action as the" persons
on whose behalf, or for whose benefit, they sue or are sued or defend the suit, as the case may be.

Conditions to Apply Rule 8: The Apex Court has decided in T. N. Housing Board v. Ganapathy, AIR
1990 SC that for the application of Rule 8 the following conditions must be fulfilled: -

a. the parties must be numerous; Rule 8(1)

b. they must have the same interest in the suit; Rule 8(1)
c. the permission must have been granted [Rule 8(1) (a)] or direction must have been given by the Court
[Rule 8 (1) (b)]; and

d. notice must have been issued to the parties whom it is proposed to represent in the suit. Rule 8(2)

1) Numerous persons: The word" numerous" means a group of persons. It is not necessary that the number
of persons should be capable of being ascertained. But it is necessary that the body of persons represented
by the plaintiffs or the defendants must be sufficiently definite so as to enable the Court to recognize as
participants in the suit.

2) Same Interest: The persons on whose behalf the suit is instituted must have the same interest which is
common to all of them or they must have a common grievance which they seek to get redressed.

For the purpose of this condition the above explanation to Rule 1 is relevant.

3) Permission or direction by the Court13

4) Notice : The fact about the representative nature of the suit must be stated in the body of the

29
 plaint as well as in the file of the suit. In a representative suit, even on the death of the person appointed to
conduct such suit, such suit will not abate and other person or persons interested in the suits may proceed
with the suit or may apply to be added as plaintiff.

FRAME OF SUIT (ORDER II)

Introduction: Order II of the code deals with the provisions relating to the framing of suits and the rules regarding
causes of action. A cause of Action means every fact which is necessary for the plaintiff to establish to support his
claim in obtaining judgment in his favour. Order II, Rule 1 explains that every suit shall be framed so as to afford
ground for the final decision upon the subject in disputes and to prevent further litigation concerning them.

Suit to include the whole claim: Rule 2 of order II is based upon the principle that a defendant should not be vexed
twice for the same cause of action. Sub-rule 2 of rule 2 of Order II provides that every suit shall include the whole
claim in respect of a cause of action.

Relinquishment of claim: But a plaintiff may relinquish any portion of his claim in order to bring the suit within
the jurisdiction of the Court and where a person is entitled to more than one relief in respect of the same cause of
action, then he may sue for all or any of such relief.

Effect of Relinquishment: Omission to sue: Where a plaintiff omits to sue in respect of, or intentionally
relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished
and if he omits to sue for all such relief with respect to the same cause of action except with the leave of the Court,
he shall not afterwards sue for any relief so omitted.

For example: A lets a house to B at a yearly rent of Rs. 1,200/- The rent for the whole of the years 1905, 1906, and
1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall not afterwards sue B for the rent
due for 1905 and 1906.

The provisions of order II, Rule 2 apply only to suits and not to appeals, execution proceedings, and arbitration
proceedings or to a petition under Art. 226.

Joinder of Cause of Action18: Subject to the provisions of Rules 4 and 5 of order II and rule 3 of order I, Rules 1
and 3 of Order II provide the provision for joinder of several causes of action in one suit. Rule 3 contemplates the
under mentioned four types of situations:

1) One plaintiff, one defendant -and several causes of action: In this condition the plaintiff is at liberty to
unite several causes of action in one suit.

2) Joinder of Plaintiffs and Causes of Action (two or more plaintiffs and same defendant): In this condition,
subject to Order I, rule 1, the plaintiffs may unite such causes of action in one suit against the same defendant
if they all are jointly interested.

3) Joinder of defendants and Causes of Action (One plaintiff and two or more defendants) : In this condition,
subject to rule 3 of order I, the plaintiff may unite in the same suit several causes of action against those
defendants, if the defendants are jointly interested in the causes of action.

4) Joinder of plaintiffs, defendants and causes of Action (Two or more plaintiffs and two or more

30
 defendants): In this condition, subject to rules 1 and 3 of order I the plaintiffs may unite the causes of action
against the defendants in the same suit only when all the plaintiffs and all the defendant~ are jointly interested
in the causes of actions.

Conditions of mis-joinder :

1) Mis-joinder of plaintiffs and causes of action: Where plaintiffs are not jointly interested in the causes of action
and the suit is bad for mis-joinder of plaintiffs and causes of action.

2) Multifariousness: Where defendants are not jointly interested in the causes of action, the suit is bad for
Multifariousness.

3) Double mis joinder: Where neither the plaintiffs nor the defendants are jointly interested in the cause of action
i.e., mis joinder of plaintiffs and causes of action and mis joinder of defendants and causes of action.

Objections as to misjoinders: All objections on the ground of mis-joinder of causes of actions shall be between at
the earliest possible opportunity and in all cases where issues are settled, at or before such settlement, unless the
ground of objection has subsequently arisen, and any such objection not s taken shall be deemed to have been
waived.

Separate trial: Where it appears to the Court that the joinder of causes of action in one suit may embarrass or delay
the trial or is otherwise inconvenient, the Court may order separate trials or make such other orders as may be
expedient in the interests of justice.

PLEADING (ORDER VI)

Meaning: According to order VI Rule 1, pleading shall mean plaint or written statement.

"Pleadings are statements in writing drawn up and filled by each party to a case, stating what his contentions will
be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer. 21

In proceedings before a Civil Court pleading may include a petition and reply thereto by the respondent whether to
the form of an affidavit or otherwise. Plaintiff's pleading is called a plaint while the defendant's pleading is called a
Written Statement

Object: The object of pleading is to bring parties to definite issues and to diminish expense and delay and to prevent
surprise at the hearing.

"The object of the rule is twofold. First is to afford the other side intimation regarding the particular facts of his
case so that they may be met by the other side. Second is to enable the Court to determine what is really the issue
between the parties."22

"Provisions relating to pleadings in civil cases are meant to give to each side intimation of the case of the other so
that it may be met to enable Courts to determine what is really at issue between parties, and to prevent deviations
from the course which litigation on particular causes of action must lie.23

31
The entire law governing the "Pleading" is contained in the provisions of Order VI (Pleading), Order VII (Plaint)
and Order VIII (Written Statement) of the Code. Apart from this some important fundamental procedural matters
relating to the practice are the provisions of Order I (Parties to suit), as to the manner in which a suit should be
framed Order II (Frame of suit), as to who should sign the pleading Order III and Order IV (Institution of suit) and
as to taking out of summons and their services Order V.

Fundamental Rules of Pleading: The general rule regarding the pleadings is as under:

1) Pleading must state facts and not law;

2) Only the material facts must be stated;
3) Pleading should not include the evidence, and
4) The facts stated must be in concise form.

Material Facts: The facts are of two types:

1) Facts probanda: the facts required to be proved (material facts); and
2) Facts probantia: the facts by means of which they are to be proved (particulars or evidence).

It is the fundamental rule of pleading that pleadings must include the material facts and not the facts by means of
which they are to be proved i.e., evidence. The term material facts has not been defined in the code, but the
expression "material facts" has been defined by the Hon'ble S.C. in Udhav Singh V/s Madhav Rao Scinda AIR
1977 that "all the primary facts which must be proved at the trial by a party to establish the existence of a cause of
action or his defence are material facts."

It means all facts upon which the plaintiffs cause of action or the defendant's defence depends, or all those facts
which must be proved in order to establish the plaintiff's right to relief claimed in the plaint or the defendant
defence.24

Striking out Pleading: (Rule 16) If the pleading is unnecessary, scandalous, frivolous; or vexatious 25 or tends to
prejudice, embarrass or delay the fair trial of the suits or is otherwise an abuse of the process of the Court 27 the Court
may, at any stage of the proceedings, order to be struck out or amended any matter in it.

Signing (Rule 14) and Verification Rule (15) of Pleadings: Every pleading shall be signed by the party and his
pleaders (if any) or by any person duly authorized to sign the same or to sue or defend on his behalf 28 and every
pleading shall be verified at the foot by the party or by one of the parties pleading or by some other person proved
to the satisfaction of the Court to be acquainted with the facts of the case.29 The person verifying shall specify what
he verifies to his own knowledge and what upon. information received he believes to be true.30 The person verifying
shall furnish an affidavit in support of his pleading31 and the verification shall be signed with date and place at
which it was signed,32

Amendment of Pleading (Order VI, Rule 17)

As a general rule, material facts and necessary particulars must be stated in the pleadings and the decision cannot
be based on the grounds outside the pleadings. But due to various reasons parties have to amend their pleadings for
which Order VI rule 17 states as under:

''The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such

32
manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the
purpose of determining the real question in controversy between the parties,

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

In order to try a case on its merits and for determining the real question in controversy between the parties the
Courts are empowered under 'rule 17 to allow the amendment of the pleadings. Amendment in the pleading may be
with the permission of the Court.

Permission to amend when granted: A leave to. amend the pleading will be granted by the Court whereby the
amendment no injury will be caused to the opposite party and he can be sufficiently compensated for by costs or
other terms to be imposed by the order and where the amendment is necessary for the determination of the real
question in controversy and no injustice will be caused to the other party the Court may allow the amendment of
the pleadings.

It is true that the courts have a very wide discretion in the matter of amendment of pleadings. In Ganga Bhai V
Vijay Kumar AIR 1974 SC 1126, the Supreme Court has observed that "the power to allow an amendment is
undoubtedly wide and may at any stage be appropriately exercised in the interest of justice, the law of limitation
notwithstanding. But the exercise of such far-reaching discretionary powers is governed by judicial considerations,
and wider the discretion, greater alight to be the care and circumspection on the part of the Court."

Effect of amendment: Where an amendment is allowed, such amendment relates back to the date of the suit as
originally filed. The court must look to the pleadings as they stand after the amendment and have out of
consideration unamended ones.33

Failure to amend (Rule 18)34: If a party remained failed to amend after the order of amendment, within the time
specified for that purpose in the order or if no time is specified, then within 14 days from the date of the order, he
shall not later on be permitted to amend after expiry of the specified time or of 14 days unless the time is extended
by the court.

Failure to amend does not result in the dismissal of the suit and the court has discretion to extend the time even after
the expiry of the period originally fixed.

Order under rule 17 is Revisable: An order granting or refusing amendment is a 'case decided' within the meaning
of section 115 and revisable by the Court. The above order is neither a decree nor appealable order and hence not
appealable.

Plaint (Order VII)

Introduction: Every civil suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in
that behalf. Plaint is a pleading of the plaintiff.

Meaning: The word has not been defined is the code but it can be said to be a statement of claim, a document, by
presentation of which the suit is instituted.

33
 Title of the suits
Plaint : Body of Plaint
Relief Prayed for

Title of the suits Plaint: Body of Plaint Relief Prayed for

Title: Title of the suit consists of the name of the Court, case number to be given by the office of the Court and
descriptions of parties.

Body of Plaint: In this part the plaint consists of the facts constituting the cause of action and when it arose.

Reliefs: The plaint shall finally contain the relief which the plaintiff claims either simply or in the end. Every plaint shall
state specifically the relief which the plaintiff claims either simply or in the alternative. 35 Generally, the plaintiff is not
entitled to relief for which there is no foundation in the plaint, except in a case where on the pleadings, issues and evidence
the relief is clear because the primary duty of the Court is to do justice and the rules of procedure are meant to advance
the cause of justice and not to impead it.

The plaintiff ought to be given such relief as he is entitled to get on the facts established on the basis of the evidence
in the case even if the plaint does not contain a specific prayer for the relief. The equitable relief under Order VII,
Rule 7 may be granted even though grounds on which relief is sought have not been stated as required by the rule.

Particulars of Plaint: A plaint shall contained the following particulars:

1) 36
a) the name of the Court in which the suit if brought;
b) the name, description and place of residence of the plaintiff;
c) the name, description and place of residence of the defendant, so far as they can be ascertained;
d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that
affect;

e) the facts constituting the cause of action and when it arose;

f) the facts showing that the Court has jurisdiction;

g) the relief which the plaintiff claims;

h) where the plaintiff has allowed a set off or relinquished a portion of his claim the amount so
allowed or relinquished, and
i) a statement of the value of the subject matter of the suit for the purposes of jurisdiction and of
Court fees, so far as the case admits.

2) In case of recovery suit the precise amount claimed or where it is for the accounts or mesne profits or
for moveable in the possession of the defendant or for debts, which cannot be determined, the
approximate amount or value thereof.37

34
 3) The description of the immovable property.38

4) The interest and liability of the defendant. 39

5) If the suit is filed in the representative character it must state the facts about an actual existing interest
of the plaintiff in the subject matter and that all steps necessary have been taken by him to institute such
suit.40

6) The grounds upon which the exemption from the law of limitation where the suit is time barred.41

Return of Plaint (Order 7 Rule 10)

Rule 10:

1) Subject to the provisions of Rule 10-A, the plaint shall at any stage of the suit be returned to be presented
to the Court in which it should have been instituted.

2) Explanation: For the removal of doubts, it is hereby declared that a Court of Appeal or Revision may direct,
after setting aside the decree passed in a suit, the return of the plaint under this sub-rule.

3) Procedure on returning plaint: On returning a plaint the judge shall endorse thereon the date of its
presentation and return, the name of the party representing it, and a brief statement of the reasons for
returning it.

Rule 10-A: Power of Court to fix a date of appearance in the Court where plaint is to be filed after its return -

1) Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned,
it shall, before doing so, intimate its decision to the plaintiff.

2) Where an intimation is given to the plaintiff under sub-rule (1), the plaintiff may make an application to the
Court -

a. specifying the Court in which he proposes to present the plaint after its return,
b. praying that the Court may fix a date for the appearance' of the parties in the said Court, and

c. requesting that the notice of the date so fixed may be given to him and to the defendant.

3) Where an application is made by the plaintiff under sub-rule (2), the Court shall, before returning the plaint and
notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try
the suit,-

a. fix a date for appearance of the parties in the court in which the plaint is proposed to be presented, and

b. give to the plaintiff and to the defendant notice of such date for appearance. Where notice of the date for
appearances is given under Sub-rule (3),-

4) Where notice of the date for appearances is given under Sub-rule (3) –

35
 a. It shall not be necessary for the Court in which the Plaint is presented after its return, to serve the defendant
with a summon for appearance in the suit, unless that court, for reasons to be recorded, otherwise directs,
and

b. the said notice shall be deemed to be a summons for the appearance of the defendant in the suit in which the
plaint is presented on the date so fixed by the Court by which the plaint was returned.

5) Where the application made by the plaintiff under Sub-rule (2) is allowed by the Court, the plaintiff shall not
be entitled to appeal against the order returning the plaint.

Rejection of Plaint (Order 7 Rule 11)

Rule 11: The Plaint shall be rejected in the following cases:-

a. Where it does not disclose a cause of action.

b. Where the relief claimed is undervalued, and the plaintiff on being required by the Court to correct the
valuation within the time to be fixed by the Court fails to do so.
c. Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and
the plaintiff on being required by the Court to supply the requisite stamp- paper within the time to be fixed
by the Court, fails to do so.
d. Where the suit appears from the statement in the plaint to be barred by any law.
e. Where it is not filed in duplicate.
f. Where the plaintiff fails to comply with the provisions of Rule-9.

Provided that the time fixed by the Court for the correction of the valuation or for the supply of the requisite stamp-
papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented
by the cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the
case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to
the plaintiff.

Rule 12: Procedure on rejecting plaint: Where a plaint is rejected the judge shall record an order to that effect with
the reasons for such order.

Rule 13: Where rejection of plaint does not preclude presentation of fresh plaint: The rejection of the plaint on any
of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint
in respect of the same cause of action.

Procedure on Admitting Plaint42: Where the plaint of plaintiff has been admitted and the Court directs that the
summons be served on the defendant as provided in Order V, Rule 9, the Court will direct the plaintiff to present as
many copies of the plaint on plain paper as there are defendants within 7 days from the date of such order along
with requisite fee for service of summons on the defendants.

Production of Documents on Which Plaintiff Sues or Relies 43:

36
1. Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his
claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him
and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.

2. Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state
in whose possession or power it is.

3. A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the
list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of
the Court,. be received in evidence on his behalf at the hearing of the suit.

But, the provision of Rule 14 shall not apply to the following documents44 :
i) the document produced for the cross examination of the plaintiff witness, or
ii) ii) handed over to a witness merely to refresh his memory.

Written Statement (Order VIII)

Meaning: A Written Statement is a pleading of the defendant for submission of every material fact to answer the
allegation made by the plaintiff in his plaint. The word has not been defined in the code, but the same may be
defined as under:

A Written Statement is the pleading of the defendant wherein he deals with every material fact alleged by the
plaintiff in his plaint and also states any new facts in his favour or takes legal objections against the claim of the
plaintiff.

Preparation of Written Statement: All relevant rules of pleading apply to a Written Statement and it should be prepared
with great caution. In the Written Statement firstly, the defendant should mention the name of the Court trying the suit,
then the names of the parties. It is not necessary to mention the names, directions and place of residence of all the parties
in the title of the Written Statement, but mentioning the name of the 1st plaintiff and 1st defendant is enough. The number
of suit may be mentioned thereafter.

The defendant thereupon replies to each Para of the plaint except where any preliminary objection like
maintainability of the suit, locus standi of the plaintiff to file suit, the non-joinder or misjoinder of parties as to the
jurisdiction of the Court or as to limitation, for consideration which is necessary in the 1st 'instance before the suit
is tried on merits.

Rules of Defence: The denial in a Written Statement must be specific and not general. The grounds alleged by the
plaintiff must be denied by a defendant specifically with each allegation of fact of which he does not admit the truth,
except damages.(rule 3)45

The denial should not be vague or evasive. Every allegation of fact in the plaint, if not denied specifically or by
necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted
except as regards a person under disability.46

In cases where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis
of the facts in the plaint except as against a person under disability, but the Court, in its discretion, may require any such
fact to be proved.47 Whenever a judgment is pronounced under Rule 2, a

decree shall be drawn up in accordance with such judgment.48

Time to File Written Statement: The defendant shall file his Written Statement of his defence within 30 days
from the date of service of summons on him, but the above time may be extended by the Court further for a period,
which shall not be later than 90 Days from the date of service of summons.49
Extension of time to Present Written Statement: Ordinarily the time schedule prescribed by Order VIII, Rule 1
has to be honoured. The extension of time sought for by the defendant from the Court whether within 30 days or 90
days, as the case may be, should not be granted just as a matter of routine and merely for the asking, more so, when
the period of 90 days has expired.

The extension of time shall be only by way of exception and for reasons to be recorded in writing, how soever brief
they may be, by the Court.

Subsequent Pleadings50: According to Order VIII, Rule 9, no pleading subsequent to the Written Statement of a
defendant other than by way of defence to set off or counter - claim shall be presented except by the leave of the Court,
but the Court may, at any time require a Written Statement or additional Written Statement from any of the parties and
fix a time of not more than 30 days for presenting the same.

Failure to present Written Statement: Where a party fails to file a Written Statement as required under Rule 1 or Rule
9 within a time permitted or fixed by the Court, the Court shall pronounce judgment against him or make such order as
it thinks fit and on such judgment a decree shall be drawn up.

The provisions regarding duty of defendant to produce documents upon which relief is claimed or relied upon by
him have been given in Order VIII, Rule 1-A.

Set-Off (Order VIII, Rule 6)

Meaning: Set-off means a claim set up against another. It is a counter claim against the plaintiff but in essence it is
a form of defence in which the defendant while acknowledging the justice of the plaintiffs claim sets up a demand
of his own to counter balance it either in whole or in part.

The dorctrine of set – off is included in Order VIII, Rule 6 and is as under:

1. Where in a suit for recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained
sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of
the Court, and both parties fill the same character as they fill in the plaintiffs suit, the defendant may, at the first
hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing the
particulars of the debt sought to be set-off.

2. Effect of set-off: The written statement shall have the same effect as a plaint in a cross- suit so as to enable the
Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this not aftect
the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree.

3. The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of a
set-off.

38
Example: A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs. 1000. The two claims
both definite, pecuniary demands may be set-off.

A sues B for compensation on account of trespass. B holds a promissory- note for Rs. 1,000, from A and claims to
set-off that amount against any sum that A may recover in the suit. B may do so, for as soon as A recovers, both
sums are definite pecuniary demands.

Conditions: A defendant may claim a set-off, if the following conditions are satisfied:-

I. The suit must be for the recovery of money.

II. The sum of money must be ascertained.
III. Such sum must be legally recoverable.
IV. It must be recoverable by the defendant or by all the defendants, if more than one.
V. It must be recoverable by the defendant from the plaintiff or from all plaintiffs'; if more than one.
VI. It must not exceed the pecuniary jurisdiction of the Court in which the suit is brought.

Both the parties must fill in the defendant's claim to set-off, the same character as they fill in the plaintiffs suit.

Equitable set-off: The provision of Rule 6 are not exhaustive. Order VIII, Rule 6 deals with legal set-off while
Order XX, Rule 19(3) recognizes an equitable set-off.

An equitable set-off may be claimed by the defendant in respect of an unascertained sum of money, provided that
both the cross demands arise out of one and the same transaction are so connected, in the nature and circumstances,
that they can be looked upon as parts of one transaction.

Example: A sues B to recover Rs. 25,000/- under a contract, B can claim set-off towards damages sustained by him
due to breach of the same contract by A.

Distinction between legal and equitable set-off:

Basis of Legal Set - Off Equitable Set-off

Distinction

1. Claim for A legal set-off must be for an An Equitable set-off may be allowed
ascertained sum of money. even for an unascertained sum of
money.

2. As Right A legal set-off can be claimed as An equitable set-off cannot be claimed as

a right and the court is bound to a right and it is granted at the court’s
entertain and adjudicate upon it. discretion and the court
may refuse to adjudicate upon it

3. Same Transaction In a legal set-off, it is not necessary An equitables set-off can be allowed
that the cross demands arise out of only when the cross- demands arise

39
 out of the same transactions. out of the same transactions.

4. Legally Recoverable The amount claimed as set-off In cases, where there is a fiduciary
must be legally recoverable and relationship between the parties, a
should not be time barred. time barred claim may be allowed
by way of equitable set-off. But even
in cases of equitable- set-off where
the defendant's claim was not barred
at the date of suit but it is barred at the
date of W.S., it will be allowed only to
the extent of plaintiff's claim, and a
decree for balance, if found due to
him, shall not be passed in his favour.

5. Court Fee A legal set-off requires a Court fee. No Court fee is required in equitable
set-off.

Counter-Claim (Rules 6-A to 6-G)

Meaning: It is a claim made by the defendant in a suit against the plaintiff and can be enforced by a cross action.
Counter claim is a cause of action in favour of the defendant against the plaintiff.

A counter-claim is a weapon in the hands of a defendant to defeat the relief sought by the plaintiff against him and
may be set-up only in respect of a claim for which the defendant can file a separate suit and therefore, it is
substantially a cross action.

In Laxmidas VIs Nanabhai AIR 1984, 'SC. it was held that the Court has power to treat the counter claim as a cross
suit and hear the original suit and counter claim together if the counter claim is properly stamped.

Order VIll, Rule 6-A deals with the counter claim, which is as under:

a. A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-
claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant
against the plaintiff either before or after the filing of the suit but before the defendant has delivered defence or
before the time limited for delivering his defence has expired whether such counter claim is in the nature of a
claim for damages or not:

Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court.

b. Such counter claim shall be the same effect as a cross- suit so as to enable the Court to pronounce a final
judgment in the same suit, both on the original claim and on the counter claim.

c. The plaintiff shall be at a liberty to file a written statement in answer to the counter-claim of the defendant
within such period as may be fixed by the Court.

40
d. The counter-claim shall be treated as a plaint and governed by the rules applicable to the plaints.

Rule 6 B: Counter Claim to be stated: Where any defendant seeks to reply upon ground as supporting a right of
counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim.

Rule 6 C : Exclusion of Counter Claim: Where a defendant sets up a counter-claim and the plaintiff contends that
the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the-plaintiff
may, at the time before issues are settled in relation to the counter-claim, apply to the Court which may, on the
hearing of such an application make such an order as it thinks fit.

Rule 6 D: Effect of discontinuance of suit: If in any case in which the defendant sets up a counter claim, the suit
of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with.

Rule 6 E : Default of plaintiff to reply Counter- Claim: If the plaintiff makes default in putting in a reply to the counter
claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter claim
made against him, or make such order in relation to the counter claim as it thinks fit.

Rule 6 F : Relief to defendant where Counter Claim succeeds: Where in any suit a set-off or counter-claim is
established as a defence against the plaintiff's claim and any balance is found due to the plaintiff or the defendant, as the
case may be, the Court may give judgment to the party entitled to such balance.

Rule 6 G : Rules relating to written statement to apply : The rules relating to a written statement by a defendant
shall apply to a written statement filed in answer to a counter claim.

Rule 7: Defence of set-off or counter- claim founded upon separate grounds: Where the defendant relies upon
several distinct grounds of defence of set-off or counter - claim founded upon separate and distinct facts, they shall
be stated, as far as may be separately and distinct.

Distinction between Set-off and Counter-claims

Basis of Distinction Set-off Counter Claim

It is statutory defence to a It is substantially a cross- action
Nature plaintiff’s action
It must be either for an ascertained It need not arise out of the same
sum or must arise out of the same transaction
Same Transaction transaction
In legal set-off the amount must be In it the amount must be recovered of
recoverable at the date of the suit amount at the date of Written
Date for recovery Statement
Demand The defendant's demand for an Where -the demand is for
amount below or up to the suit a larger amount the claim
claim is a set-off in strict sense. for excess amount is
really a counter.

Ground of It is a ground of defence to the It is a weapon of offence

plaintiff's action which if which enable the
established, would afford an answer defendant to enforce the
to the plaintiff's claim in toto (as a claim against the
whole) or protanto (in proportions) plaintiff effectually as an
independent actions.
References:
1. Order I, Rule 6
2. Order I, Rule 7
3. Order I, Rules 2 and,3-A
4. Rule 4 (a)
5. Rule 4(b)
6. Rule 9
7. Order I, Rule 10
8. Rule 10(1)
9. Rule 10(2)
10. Rule 10(4)
11. Rule 10(5)
12. Order VIII, Rule 1
13. Rule 8(1) (a) and Rule 8(1) (b)
14. Rule 8(2)
15. Rule 2(3)
16. Rule 2(3)
17. Rule 2(2)
18. Rule 2 and 6
19. Rule 7
20. Rule 6
21. Mogha's Law of pleadings.
22. Virendra V. Vinayak AIR 1999 SC

23. Ganesh Trading Co. Vs. Moji Ram AIR 1978 SC.
24. Union of India V/s Sita Ram AIR 1977 SC
25. Rule 16 (a)
26. Rule 16 (b)
27. Rule 16 (c)
28. Rule 14
29. Rule 15 (1)
30. Rule 15 (2)
31. Rule 15 (4)
32. Rule 15 (3)
33. Brij Kishore v. Smt. Khatoon, AIR 1976 All
34. Order VIII, Rule 17
35. Order VII, Rule 7
36. Order VII, Rule 1
37. Order VII, Rule 2
38. Order VII, Rule 3
39. Order VII, Rule 4
40. Order VII, Rule 4
41. Order VII, Rule 6
42. Order VII, Rule 9
43. Order VII, Rule 14
44. Order VII, Rule 44(4)
45. Order VII, Rule 3
46. Order VII, Rule 4
47. Order VII, Rule 5(1)
48. Order VII, Rule 5(4)
49. Kailash VIs Nanku (2005) 4 Sec, see also Aditya Hotels (P) Ltd. VIs Bombay Swedesh Stores Ltd. (2005)
3 Supreme
50. Order VIII, Rule 9
UNIT IV
APPEARANCE OF PARTIES AND EFFECT OF THEIR NON-APPEARANCE (Order IX)

Introduction: Order IX of the Code provides the law with regard to the appearance of the parties to the
suits and the consequences of their non-appearance. Where a party (Plaintiff or Plaintiff and Defendant,
both) does not appear when the suit is called on for hearing, the suit may be dismissed and where a party
(Defendant) does not appear even when the summons is duly served on him, the Court may Order for
the ex-parte hearing of the suit.

Therefore, Order IX can be discussed under the following heads:

a. Dismissal of Suit: The plaintiff's suit may be dismissed under rules 2, 3, 5(1) and 8 of Order IX of the
Code, while the Court may order ex-parte hearing of the suit under rule 6(1) of Order IX.

Rule 2: A suit may be dismissed under rule 2 if the summons has not been served upon the defendant
due to the failure of the plaintiff to pay Court-fee or Postal charges, if any chargeable for such service or
failure to present copies of the plaint as required by rule 9 of Order VII.

Rule 3: The Court may dismiss the suit under rule 3 where, both the parties are absent when the suit is
called on for hearing.

Rule 5(1): The Court shall pass an order for dismissal of the suit under rule 5(1), where a summons has
been returned unserved on the defendant(s) and the plaintiff fails to apply for a fresh summons for a
period of seven days from the date of the return of summons made to the Court by the serving officer.

But, the Court shall not dismiss the suit under rule 5(1), if the plaintiff satisfies the Court that-

59
 a. he has failed after using his best endeavors to discover the residence of the defendant who has
not been served, or

b. such defendant is avoiding service of process, or

c. there is any other sufficient cause of extending the time, and may extend the time for making
such application.

Rule 8: The Court shall make an order of dismissal of suit under rule 8, where the plaintiff remains absent
and the defendant is present, when the suit is called on for hearing and the defendant does not admit the
claim or part thereof.

Remedies against Dismissal: Where the suit has been dismissed under rule 2 or 3, the plaintiff has
remedies either to file a fresh suit (subject to the law of limitation) under rule 4 or to make an application
under rule 4 for restoration of the suit. When the suit has been dismissed under rule 5(1), the plaintiff
may bring a fresh suit (subject to the law of limitation) under rule 5(2).

When a suit is dismissed under rule 8, the plaintiff shall be precluded to bring a fresh suit on the same cause
of action but he may apply to set the dismissal aside under rule 9 of Order IX and the Court shall, after issuing
a notice1 of application on the opposite party set aside the order of dismissal, on being satisfied that there was
sufficient cause for plaintiffs non-appearance when the suit is called on for hearing.

2) Ex- Parte Hearing : Where only the plaintiff appears and the defendant does not appear when the
suit is called on for hearing, and the Court observed that the summons was duly served on
defendant then the Court may pass an order that the suit be heard ex-parte.2

Remedies: The defendant in the same manner may be allowed by the Court to be heard, as if he
had appeared on the day fixed for his appearance, where the Court has adjourned the ex parte
hearing and he (defendant) appears on or before such adjourned date and satisfy the Court with good
cause for his previous non-appearance.

In the case of, Mahesh Yadav v. Rajeshwar Singh3, it was held that, an order setting
aside an ex parte decree is a judicial order and therefore, it must be supported by
reasons. Thus, no ex parte decree can be set aside without notice to the opposite party.4

Setting aside ex-parte hearing: Where in an ex-parte hearing, a decree is passed ex-parte against
a defendant, he has the following options -

a. To apply under rule 13 to set aside the ex-parte decree and the Court after service of Notice of
such application on the opposite party and on being satisfied that the summons was not duly
served on the defendant or he was prevented by any sufficient cause from appearing when the
suit was called on for hearing. But no such decree shall be set-aside on the basis of irregularity
in the service of summons,5

When the Court rejects an application under rule 13, such an order is appealable under Order
XLI Rule 1.

b. To file appeal against ex-parte decree6

But when an appeal is preferred against ex-parte decree and the same is dismissed on any ground
except as being withdrawn by the appellant, no application shall lie under rule 13 for setting aside
that ex-parte decree.7
References

1. Order IX, Rule 9(2)

2. Order IX, Rule 6(1) (a)
3. (2009) 2 SCC 205
4. Order IX Rule 14
5. IInd Proviso to Rule 13 of Order IX
6. Section 96(2)
7. Expl. to Rule 13

First hearing
After a suit is instituted with the plaint and a written statement is given by the defendant there comes a
stage called first hearing. Order 14 of the Code of Civil Procedure, 1908 deals with the first hearing. The
word first hearing as such is no where defined in the Code, but the literal meaning of the term is the day
on which the court goes into the pleadings of parties in order to understand their contentions. While Order
10 of the Code enjoins the court to examine parties with a view to ascertain matters in controversy in the
suit. It has been held by the Supreme Court that First hearing is the day on which the court applies its mind
to the case either for framing issues or for taking evidence. [Arjun Khaimal Makhijani v. Jamnadas C.
Tuliani (1989) 4 SCC 612]

The Order X Rule 1 provides that the court shall, at the first hearing of the suit, ascertain from each party
or his pleader whether he admits or denies such allegations or facts as are made in the plaint or in the
written statement, if any, of the opposite party. After recording admissions and denials, the court shall
direct the parties to the suit to settle out of court through conciliation, arbitration, mediation or Lok Adalat.
If there is no settlement, the case will again be referred to the court. Rule 2 further provides that for oral
examination of parties to the suit with a view to elucidating matters in controversy in the suit. The court,
thus, ascertain with precision the propositions of law or fact on which the parties are at variance and on
such questions issues are required to be framed. The main purpose behind these rules is to understand and
inform the parties about their real dispute so that the area of conflict can be dealt with between the parties
at the same time, later on if any party come to realise about these issues, it would not be surprise to them.

Therefore, on the first hearing, the main task of framing of issues is done. Issue means a point in question
or some important subject of discussion. Issues are points of contradictory averments made by the parties
and decide by the court. When one fact is asserted by the party and the same is denied by other, that is
oppositions, such per se facts, which will be called material propositions will constitute issues. Order X
Rule 2(2) and 2(3) provides that material propositions are those propositions of law or fact which a
plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his
defence. Each material proposition affirmed by one party and denied by the other shall form the subject-
matter of a distinct issue.

Basically the framing of issues requires some conditions and material which is inclusive of mainly three
things. Firstly, the allegations made on oath by the parties, or by any persons present on their behalf, or
statements made by the pleaders appearing for the parties. Secondly, the allegations made in pleading or
in answers to interrogatories and thirdly, documents produced by the parties.[ Rule 1(5) and Rule
3] Therefore their importance has been realised appropriately in leading judgement in State of Gujarat v.
Jaipalsingh Jaswantsingh Engineers and Contractors[(1994) 35 (1) Guj LR 258] wherein it was stated that
“such framing of issues in the first instance would facilitate the applicant to lead necessary evidence in
support of the claim and the reliefs prayed pursuant thereto. In the second instance, it will avail the
opponent an opportunity to confront and contradict the particular witness and thereafter to lead the
evidence if he so desires to bring home the defence pleaded, and in the third instance, enlighten the trail
court to test and appreciate the same in proper perspective to enable it to reach a just decision. It is hardly
required to be told that issues are backbone of a suit. They are also the lamp-post which enlightens the
parties to the proceedings, the trial court and even the appellate court- as to what is the controversy, what
is evidence and where the way to truth and justice lies.”

Therefore the framing of issues is the duty of the court since only the court can frame the issues in a suit.
They are decided by the Presiding Officer of the court that is the Judge. At the same time, parties and their
pleaders thereof must also assist the court in framing the issues wherever required. While issues are
supposed to be clear and specific, vague and evasive issues creates irregularities in the administration of
justice. Order X also provides that the court may examine witnesses or inspect documents before framing
issues, to amend the issues or to frame additional issues or to strike out issues that may appear to the court
to be wrongly framed.

But in circumstances wherein there is the omission of court to framing of issues, such is not considered
fatal to the suit. But in case, such omissions leads to affect the disposal of suits on merits then the case
must be remanded to the trail court for fresh trial. While on the other hand, it was held that where the
parties knew that certain point of proposition would have been an issue and yet its disposition would not
be fatal to the suit, such omission of court on framing issue is acceptable provided it has caused no
prejudice or substantial injustice.[ Keval Krishan v. Dina Nath (1992) 2 SCC 51] Order 15 deals with
various situations where a suit can be disposed off on the first hearing itself. Therefore, issues are
extremely important for a proper proceeding of a suit and right decision of the case [Pandurang Laxman
v. Kaluram Bahiru AIR 1956 Bom 254] and omission thereto can be caused, bearing valid reasons and
while if framed properly, all issue must be normally decided at one and same time. [Lufthansa General
Airlines v Vij sales Corporation (1998) 8 SCC 623] This constitutes all we need to know about first
hearing.

Framing of Issues
When one party affirms and other party denies a material proposition of fact or law, then only issues arise.
If there is no specific denial, the question of framing issue does not, generally, arise. Material propositions
are those propositions of law or fact. The plaintiff must allege such material propositions in order to show
his right to sue. In the same way, defendant must allege as to constitute his defence. Unless each material
proposition is affirmed by the plaintiff and denied by the defendant, a distinct issue will not form.

Material Propositions:

Basically, Material propositions can be understood in sense of two aspects. Those are Proposition of fact
and Proposition of law. Those propositions of fact or law which a plaintiff must specifically allege in order
to show a right to sue or a defendant must specifically allege in order to constitute his defence in such suit.
In Sri Nanjudchari vs. The Chairman , it was held that '' It is mandatory on the part of the trial court to
frame all necessary issues arising from pleadings i.e., material preposition of fact and law of affirmed by
the one party and denied by the another.

When Does A '' Distinct Issue'' Form ?

To form a distinct issue, a material proposition must affirmed by one party and denied by other. Unless
each material proposition is affirmed by the plaintiff and denied by the defendant, a distinct issue will not
form.

At this juncture, it is not out of scope to see Rule 1 (3) of Order XIV of C.P.C, which reads as infra:

'' Each material proposition affirmed by one party and denied by the other shall form the subject of a
distinct issue.''

Kinds Of Issues:

If defendant makes no defence, framing and recording issue by the Court does not arise. That too, in such
a case, a Court need not frame and record an issue inasmuch as the defendant makes no defence at the first
hearing of the suit. In Desi Kedri vs. Huzurabad Co-Operative Marketing Society Ltd.,, it was held that
''Issues need not be framed when there is no dispute with regard to material averments in the plaint.''

According to Rule 1( 4) of Order XIV of C.P.C, issues are of two kinds.

a) issues of fact,
b) issues of law.

How May a Issue of Fact Arise?

The word '' Fact'' is defined under section 3 of Indian Evidence Act,1872.

['' Fact''. " Fact" means and includes-- (1) any thing, state of things, or relation of things, capable of being
perceived by the senses; (2) any mental condition of which any person is conscious.

Illustrations

(a) That there are certain objects arranged in a certain order in a certain place, is a fact.
(b) That a man heard or saw something, is a fact.
(c) That a man said certain words, is a fact.

(d) That a man holds a certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a
particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is
a fact.

(e) That a man has a certain reputation, is a fact." Relevant." One fact is said to be relevant to another
when the one is connected with the other in any of the ways referred to in the provisions of this Act relating
to the relevancy of facts." Facts in issue." The expression" facts in issue" means and includes-
- any fact from which, either by itself or in connection with other facts, the existence, non- existence,
nature or extent of any right, liability, or disability, asserted or denied in any suit or proceeding, necessarily
follows.

Explanation.-- Whenever, under the provisions of the law for the time being in force relating to Civil
Procedure, 1[ any Court records an issue of fact, the fact to be asserted or denied in the answer to such
issue is a fact in issue.

Illustrations:
A is accused of the murder of B. At his trial the following facts may be in issue:-- that A caused B' s death;
that A intended to cause B' s death; that A had received grave and sudden provocation from B; that A, at
the time of doing the act which caused B' s death, was, by reason of unsoundness of mind, incapable of
knowing its nature.]
In view of above, it is apt to say that understanding the word ''fact'' under purview of Indian Evidence Act
is very important as to issues of fact.

When Shall A Court Frame And Record Issues?

Basically, at the first hearing of the suit the Court shall ascertain upon what material propositions of fact
or law the parties are at variance. Yet, here, three essential points are to be remembered. Before framing
and recording issues, firstly, the Court shall read the plaint and written statement. Secondly, examination
under rule 2 of Order X is mandatory, thirdly, the Court shall hear the parties or their pleaders. At the
outset, it is apt to see words in rule 1 (5) of Order XIV of C.P.C '' after reading the plaint and the written
statement and after examination under rule 2 of Order X and after hearing the parties or their pleaders''.
Thus, the Fundamental Functions of the Court, as to before framing and recording issues , are:

1. reading the plaint and written statement;

2. examination under rule 2 of Order X of C. P.C; and
3. hearing the parties or their pleaders;

After these three essential functions, the Court, at the first hearing, shall ascertain upon what material
propositions of fact or law the parties are at variance, and shall thereupon proceed to frame and record the
issues on which the right decision of the case appears to depend. commencement of trial, suit be posted to
a specific date for hearing both sides on the issues already framed to see if they have been properly framed
or if any reframing of issues is needed on the core issues in dispute. Trial be commenced only after such
exercise.''

Can a Court go into question and decide any aspect without framing issues?

Despite issue is not framed, court has power to go into that question and decide that aspect of the subject
matter in case of sufficient evidence is adduced by both parties on pleadings. At this juncture, it is
appropriate to refer ruling in Mohd. Kareemuddn Khan vs. Syed Aza, where it was observed that
Defendant pleading perfection of title by adverse possession. Issue not framed.

However, evdience adduced by both sides on the disputed matter. Court is not barred to go into that
question and decide that aspect of the matter aso. In another case, Sunyabasi Pikra vs. Paramanand
Ranasingh, it was held that '' Both parties have laid evidence, both documentary and oral touching that
issue. Non-framing that particular issue is immaterial. ''

It is thus clear that if the there are pleadings and sufficient evidence is available on record, the Court can
go into that question, even if issue is not framed on that question, and decide that aspect of the matter.
However, in some of the cases, the matters will be remaded to the trial courts for failure to frame issues.
In Syed Mahmood vs. Dr.Manik Chandra 1998(3) An.W.R.340, it was observed that issues were not
framed and therefore, the matter remitted back to trial court no frame issues as indicated and give
reasonable opportunity to the parties to lead evidence etc.

Discovery, inspection and production, impounding and return of documents (S. 30

and Order XI)
Section 30 of the Code says that subject to such conditions and limitations as may be prescribed, the Court
may, at any time, either of its own motion or on the application of any party,-

make such orders as may be necessary or reasonable in all matters relating to the delivery and answering
of interrogatories, the admission of documents and facts, and the discovery, inspection, production
impounding and return of documents or other material objects producible as evidence.
Meaning of Discovery: Discovery means to compel the opposite party to disclose what he has in his
possession or power. The discovery may be either discovery of facts or discovery of documents. Where
information as to fact is required, the party is allowed to put a series of questions, known as interrogatories
to his adversary.

Where in the opinion of the judge, such proposed questions are proper, then he will compel the other side
to answer them on oath before trial. This is called discovery of facts, while where information as to
documents is required, then on the application of the party, an order to compel the other party to make a
list of relevant documents in his possession or power and for permission to inspect and to take copies of
those documents. This is known as discovery of documents. Rules 1 to 11 of Order XI deal with the
interrogatories while the rules 12 to 14 of Order XI deal with the discovery of documents. The Court may
postpone a premature discovery.13

Withdrawal and Compromise of Suits

Order 23 deals with withdrawal and compromise of suits.
Such withdrawal may be with the leave of the court (qualified) or without the leave of the court (absolute).
Rule 1 deals with both absolute and qualified withdrawal.
1. It provides that any time after the institution of the suit, the plaintiff may withdraw the suit or a
part of the claim, without the leave of the court.
2. An exception to this rule is that withdrawal is not possible where a vested right gets created before
the withdrawal. (case law)
3. Such a right of the plaintiff is unqualified and he may withdraw the suit/part of the claim against
all or any of the defendants.
4. However, the plaintiff shall thereafter be barred from instituting a fresh suit on the same cause of
action.
5. The court may also ask to plaintiff to render costs in such case.
6. This rule is not applicable to minors or persons of unsound mind.
7. Where a suit or part of the claim is to be withdrawn by a minor or a person of unsound mind, the
leave of the court is necessary. In such a case, an affidavit must be filed by the next friend of such
person.
8. Further, where such person is represented by a pleader, a certificate must be filed by the pleader
stating that the withdrawal or abandonment is for the benefit of the minor or unsound person.
9. Qualified withdrawal is allowed where the court is satisfied that the suit shall fail by virtue of some
formal defect or that there is sufficient cause to grant withdrawal of the suit or part of the claim
and allow institution of a fresh suit.
10. A formal defect is where the defect is one of form or procedure. (E.g. misjoinder of parties) Such
defect must not deal with the merits of the case or must not be such that it goes to the root of the
plaintiff’s case (e.g. non-joinder of a necessary party).
11. Where the court permits the plaintiff to withdraw the suit/part of claim in such cases, it may allow
the same on certain conditions.
12. Further, the plaintiff shall be at the liberty to institute a fresh suit on the subject matter of the suit
or part of the claim.
 13. However, in either case (both absolute and qualified withdrawal), the court shall not allow
withdrawal by one plaintiff where there are several plaintiffs involved without the consent of the
other plaintiffs.
14. Rule 1-A provides that where a plaintiff withdraws the suit or abandons a claim, one of the
defendants (where there are many) may apply to the court to be made a plaintiff in the suit.
15. The court shall thereafter consider the application having due regard to the fact as to whether the
applicant has any substantial question to be decided as against the other defendants.
16. Where after withdrawal with the permission of the court, a fresh suit is to be instituted, the period
of limitation shall begin from the date of the institution of the fresh suit as if the first suit never
existed. (Rule 2)
17. The provisions of this Order relating to the withdrawal of the suit or abandonment of a claim are
applicable to appeals, revisions and writ petitions.
18. However, they are not applicable to a representative suit. In case of a representative suit, a person
may choose to get out of the suit. But, this shall not put an end to suit and any other person (who
represents the same group of persons) may continue with the suit.
19. The provisions of Order 23shall not apply to execution proceedings. (Rule 4)
20. Further, the court may not allow a person on application to withdraw execution proceedings with
the right to institute fresh proceedings later. Thus, the person may abandon the proceedings on his
own in such case and institute fresh proceedings later. (case law)

Agreement/Compromise/Satisfaction

The Order also provides for Compromise of a suit (Rule 3) –

(a) Where the court is satisfied that a lawful agreement in writing to that effect (as regards the entire suit
or part of it) has been entered into between the parties.

(b) Where the defendant satisfies the plaintiff in respect the whole or part of the subject matter

• The court in such cases shall record such agreement or compromise or satisfaction and shall pass
a decree (compromise decree) in this regard provided that it relates to all the parties to the suit. It
is not necessary that such decree relates to the subject matter of the suit.
• An agreement which is void or voidable under the Indian Contract Act shall not be treated as being
a lawful agreement for the purposes of this provision.
• Where any of the party alleges that no compromise or adjustment, etc. has been arrived at, it shall
be left to the court to determine such question.
• However, no adjournment shall be allowed for the same unless the court deems fit and provides
reasons in writing for such adjustment.
• Rule 3-A further provides that no suit shall lie to set aside a decree passed in such cases where it
is alleged that the compromise entered into is not lawful.
• Rule 3-B states that in case of a representative suit, no agreement or compromise shall be arrived
at without the leave of the court, recorded in writing.
• Every such compromise or agreement that does not comply with the provisions of this rule shall
be deemed to be void.
 • Before granting such leave, the court shall issue a notice in this regard to persons who may be
interested in such suit.
• A representative suit would be taken to include a suit filed by or against the Karta or manager of
an HUF where he represents the other members of such family.
• It also includes any other person who by virtue of the provisions of the code would be affected by
the suit in spite of his name not being recorded as a party to the suit.
• The provisions relating to agreement and compromise are not applicable to execution proceedings.
(Rule 4)
• No next friend or guardian of a minor can enter into a compromise on his behalf without the leave
of the court and such leave must be expressly recorded. (Case law).
• A pleader is deemed to be in the same position as his client and thus he may enter into a
compromise or agreement on behalf of his client. (case law)
• A compromise decree is not a decision of the court. Herein, the court merely agrees to what the
parties have consented to. Thus, the principle of res judicata does not operate in such case.
• However, as the parties have given their consent to the same, the principle of estoppel applies.
• Where a compromise decree is passed by a court which has no jurisdiction to do so or where it is
based on an unlawful compromise, it shall be a nullity and its validity may be questioned even at
the time of execution. (case law- check- unlawful compromise- rule 3-A bars institution of suit in
such cases)
• Rule 1-A(2) of Order XLIII (Order 43) provides that in an appeal, an order recording or refusing
to record a compromise may be questioned.
• S.96 allows a party to challenge a compromise in an appeal.
• A compromise decree may also be challenged by filing a suit on the grounds of fraud, undue
influence or coercion.

Hearing of suit (Order XVIII)

Right to begin:
As a rule the plaintiff has to prove his case and therefore must begin. But if the defendant admits the facts
alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the
defendant the plaintiff is not entitled to any part of the relief which he seeks, the defendant has the right
to begin.

Similarly, if on the issue or issues of fact the burden of proof is on the defendant, it is the defendant who
has the right to begin. In a suit for restitution of conjugal rights, where the marriage is admitted but
coercion and non-consent is pleaded or in a suit where the defendant pleads minority, it is the defendant
who has to begin first, (Order XVIII, Rule 1).
Statement and production of evidence:
(1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the
party having the right to begin shall state his case and produce his evidence in support of the issues which
he is bound to prove.
(2) The other party shall then state his case and produce his evidence (if any) and may then address the
Court generally on the whole case.

(3) The party beginning may then reply generally on the whole case.

(3-A) Any party may address oral arguments in a case, and shall, before he concludes the oral arguments,
if any, submit if the Court so permits concisely and under distinct headings written arguments in support
of his case to the Court and such written arguments shall form part of the record.

(3-B) A copy of such written arguments shall be simultaneously furnished to the opposite party.

(3-C) No adjournment shall be granted for the purpose of filing the written arguments unless the Court,
for reasons to be recorded in writing, considers it necessary to grant such adjournment.

(3-D) The Court shall fix such time-limits for the oral arguments by either of the parties in a case, as it
thinks fit.] (Order XVIII, Rule 2).

Recording of evidence: (Order XVIII, Rule 4)

(1) In every case, the examination-in-chief of a witness shall be on affidavit and copies thereof shall be
supplied to the opposite party by the party who calls him for evidence:

Provided that where documents are filed and the parties rely upon the documents, the proof and
admissibility of such documents which are filed along with affidavit shall be subject to the orders of the
Court.

(2) The evidence (cross-examination and re-examination) of the witness in attendance, whose evidence
(examination-in-chief) by affidavit has been furnished to the Court shall be taken either by the Court or
by the Commissioner appointed by it:

Provided that the Court may, while appointing a commission under this sub-rule, consider taking into
account such relevant factors as it thinks fit.

(3) The Court or the Commissioner, as the case may be, shall record evidence either in writing or
mechanically in the presence of the Judge or of the Commissioner, as the case may be, and where such
evidence is recorded by the Commissioner, he shall return such evidence together with his report in writing
signed by him to the Court appointing him and the evidence taken under it shall form part of the record of
the suit.

(4) The Commissioner may record such remarks as it thinks material respecting the demeanour of any
witness while under examination:

Provided that any objection raised during the recording of evidence before the Commissioner shall be
recorded by him and decided by the Court at the stage of arguments.
(5) The report of the Commissioner shall be submitted to the Court appointing the commission within
sixty days from the date of issue of the commission unless the Court for reasons to be recorded in writing
extends the time.

(6) The High Court or the District Judge, as the case may be, shall prepare a panel of Commissioners to
record the evidence under this rule.

(7) The Court may by general or special order fix the amount to be paid as remuneration for the services
of the Commissioner.

(8) The provisions of Rules 16, 16A, 17 and 18 of Order XXVI, in so far as they are applicable, shall apply
to the issue, execution and return of such commission under this rule.] .

Burden of Proof and right to Lead Evidence:

It is clear from Rule 3, that in case the burden of proving some of the issues lies on the defendant, the
plaintiff while starting his evidence may lead the same on all the issues including those the burden of
which is on the defendant or reserve his right to lead evidence on the issues the burden of which is on the
defendant after the latter has produced his evidence.

Provision of Party appearing as Witness—Directory [Order XVIII, Rule 3-A]:

Where the party himself wishes to appear as a witness, he shall so appear before any other witness on his
behalf has been examined, unless the court for reason to be recorded permits him to appear as his own
witness at a later stage. [Order XVIII, Rule 3-A],

The provision of Order XVIII, Rule 3-A is directory. The rule does not contain any penal provision to
make it mandatory. Since the provision is directory, it is open to the trial court to grant or not grant an
opportunity to a party to examine himself later.

The very language of Rule 3-A gives an option to the trial court to permit the examination of the party
later, i.e., after the examination of the other witness or witnesses of his, provided the trial court is satisfied
that it is necessary to do so on the facts and circumstances of the case.

Examination of witnesses:
The new amended Rule 4 of Order XVIII requiring the parties to file examination-in-chief of their
witnesses on an affidavit caters to the convenience of the parties and is aimed at quick disposal of the
cause. It does not in any way run counter to the spirit and scheme of Order XVIII, Rule 1 which only
refers to the parties right to begin.

Recording of evidence on affidavit by Commissioner:

Where the plaintiffs had filed their evidence on affidavit by way of examination-in-chief. Even before
cross-examination could commence, various objections were raised by opposite party involving serious
disputes. Held, that the same could not be resolved at intervening stage and it would be open to the Court
in the course of cross-examination to deal with objections as also evidence led on affidavits as to whether
it was based on hearsay or otherwise.

Recording of evidence in form of affidavit not restricted to persons other than parties but also
applies to parties:
The sub-title in relation to the amended Rule 4 specifically speaks of “recording of evidence” and is not
restricted to those persons other than the parties to the suit. In fact, the expression used in Rules 5, 8 and
13 is similar to that of Rule 4.

The expression “witness” cannot be read in narrow or restricted sense as sought to be read by the
respondent but it has to be read in broad sense to include all the persons, including all the parties to the
suit who are examined in support of the case pleaded by either of the parties.

Indeed Order XVIII is not restricted to the recording of evidence of the persons other than the parties to
the suit but it prescribes the method of recording of evidence in all types of suits and of all the persons
appearing to depose in relation to the issues in a suit and in favour of the case of either of the parties, as
well as those who may appear or called upon to assist the Court to arrive at just and proper decision in a
case. This position is made further clear from Rule 21 of Order XVI.

Oral Evidence, manner and language [Order XVIII, Rule 6]:

The evidence of witnesses shall be taken orally in open court in the presence and under the personal
direction and superintendence of the Judge. (Order XVIII, Rule 4). In case in which an appeal is allowed,
the evidence of each witness shall be,—(a) taken down in the language of the court: (i) in writing by, or
in the presence and under the personal direction and superintendence of, the judge; or (ii) from the
dictation of the judge directly on a typewriter; or (b) if the judge, for reasons to be recorded, so directs
recorded mechanically in the language of the court in the presence of the judge. (Order XVIII, Rule 5).

Where the evidence is taken down in a language different from that in which it is given, and the witness
does not understand the language in which it is taken down, the evidence so recorded shall be interpreted
to him in the language in which it is given. (Order XVIII, Rule 6).

Curable irregularities in recording of evidence [S. 99]:

A perusal of the amended Rule 5 of Order XVIII, C.P.C. shows that the requirement of signature of the
Presiding Officer was dispensed with by the Parliament by the Code of Civil Procedure (Amendment)
Act, 104 of 1976.

It is also not provided in it that the presiding officer shall give a certificate that the statement was recorded
on his dictation. Neither the certificate that the statement of the witness was recorded at the dictation of
the presiding officer, nor the signature of the presiding officer on the statement of the witness, are
mandatory. The absence of these things at best, are merely irregularity due to which no decree is to be
reversed or varied nor any case is to be remanded in appeal as provided in section 99, C.P.C.

Illegalities in Recording of Evidence:

Where the statement of the plaintiff was being recorded by the clerk while the presiding officer was busy
otherwise, the proceedings would be said to have been conducted by the court in a highly improper
manner.

The presence of the presiding officer, while the statement of a witness is being recorded in a court of law,
does not mean merely his physical presence in the court room but the presiding officer must be attentive
to the proceedings in the case and to the deposition of the witness and it is not permissible that he might
be doing some other work while the statement of the witness was being recorded by the clerk of the court
without the intervention of the presiding officer.

Memorandum of Evidence:
In unappealable cases it is not necessary to take down the evidence of the witnesses in writing at length,
but the Judge may, as the examination of each witness proceeds, make a memorandum of the substance
of what he deposes.

In other cases also where the evidence is not taken down in writing by the Judge or from his dictation in
open court, or recorded mechanically in his presence, he shall be bound to make a memorandum of the
substance of what each witness deposes. Such memorandum shall be written and signed by the Judge and
shall form part of the record. (Order XVIII, Rules 13 and 8).

Where English is not the language of the court, but all the parties to the suit who appear in person, and the
pleaders of such of the parties as appear by pleaders, do not object to having such evidence as is given in
English being taken down in English, the judge may so take it down or cause it to be taken down. [Order
XVIII, Rule 9(1)].

Where evidence is not given in English but all the parties who appear in person, and the pleaders of such
of the parties as appear by pleaders do not object to having such evidence being taken down in English,
the judge may take down, or cause to be taken down, such evidence in English. [Order XVIII, Rule 9(2)].

The court may of its own motion or on the application of a party or his pleader take down any particular
question and answer, or any objection to any question. Where any question put by a witness is objected to
by a party or his pleader, and the court allows the same to be put, the judge shall take down the question,
the answer, the objection and the name of the person making it, together with the decision of the court
thereon. (Order XVIII, Rule 11).

Remarks on demeanour of witnesses:

The court may record such remarks as it thinks material respecting the demeanour of any witness while
under examination. (Order XVIII, Rule 12).

The court may at any stage of a suit recall a witness who has been examined and may put questions to
him. (Order XVIII, Rule 17).

Application for recall of witness for cross-examination:

Where application for recall of witness for cross-examination was filed on the ground that petitioner could
not instruct his counsel properly on the date of examination of said witness. Held, that it was a vague
ground and as such application was not a bona fide application, hence it was dismissed.

Recording of evidence:
Examination-in-chief in each and every case is permitted in form of affidavit. For taking affidavit on
record procedure to be followed in appealable cases has been prescribed in Rule 5. In non-appealable
cases procedure under Rule 13 should be followed.

Where a party satisfies the court that after the. exercise of due diligence, any evidence was not within his
knowledge or could not be produced by him at the time when that party was leading his evidence, the
court may permit that party to produce that evidence at a later stage on such terms as may appear to it to
be just. (Order XVIII, Rule 17-A).

Inspection:
The court may at any stage of a suit inspect any property or thing concerning which any question may
arise, and where the court inspects any property or thing, it shall make a memorandum of any relevant
facts observed at such inspection and such memorandum shall form a part of the record of the suit.

The inspection should be made before arguments are heard. (Order XVIII, Rule 18). An inspection under
this rule is for the purpose of understanding the evidence and cannot be a substitute for evidence of the
parties.

Power to deal with evidence taken before another Judge:

Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his
successor may deal with the evidence or memorandum taken down or made as if such evidence or
memorandum had been taken down or made by him and proceed with the suit from the stage at which his
predecessor left. (Order XVIII, Rule 15).

De bene esse examination:

It is the act of taking evidence for future use while it is available. It is chiefly used in reference to an
examination out of court and before trial of witnesses who are old, dangerously ill or about to leave the
country, on the term that if they recover or return, the evidence be taken in the usual manner. Rule 6 of
Order XVIII lays down that where a witness is about to leave the jurisdiction of the court, or other
sufficient cause is shown to the satisfaction of the court, why his evidence should be taken immediately,
the court may, upon the application of any party or of the witnesses, at any time after the institution of the
suit, take the evidence of such witness.

The evidence so taken shall be read over to the witness, and if he admits it to be correct, shall be signed
by him, and the Judge shall, if necessary, correct the same and shall sign it, and it may then be read at any
hearing of the suit. (Order XVIII, Rule 16).
 UNIT V

INCIDENTAL PROCEEDINGS
Commission (Sections - 75 to 78 and Order 26)

Meaning: 'Commission' is a process through which the witnesses, who are sick or infirm and are unable
to attend the Court, are examined by issuing a commission by the Court. Sections 75 to 78 and Order
XXVI of the Code deal with the various provisions relating to the issue of Commission to examine
witnesses who are unable to attend the Court for one or the other reasons.

Power of Court to issue Commissions: As a general rule, the evidence of a witness in an action, whether
he is a party to the suit or not, should be taken in open' Court and tested by cross-examination. The court has
a discretion to relax the rule of attendance in Court, under some circumstances and may justify issue of a
commission. Section 75 of the Code -specifies the powers of a Court to issue Commission.

Section 75: Subject to the conditions and limitations as may be prescribed, the Court may issue a
commission:-

a. to examine any person; order XXVI, Rule 1 to 8

b. to make a local investigation; order XXVI, Rule 9 to 10
c. to examine or adjust accounts; order XXVI, Rule 11 to 12
d. to make a partition ; order XXVI, Rule 13 to 14
e. to hold a scientific, technical or expert investigation; order XXVI, Rule 10-A
f. to conduct sale of property which is subject to speedy and natural decay and which is in the
custody of the Court pending the determination of the suit; order XXVI, Rule 10-C
g. to perform any ministerial act; Rules 15 to 18- B deal with general provisions. order XXVI, Rule 10-B

Cases in which Court may issue Commission to examine a person (Witness): A commission may
be issued in the following cases:

a. Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of any
person, if the person to be examined as a witness resides within the local limits of jurisdiction, and

i. Is exempted under the Code from attending the Court, or

ii. in the interest of justice, or for expeditious disposal of a case, or for any other reason his
 examination on commission will be proper;1 or

b. if he resides beyond the local limits of jurisdiction of the Court, 2 or

c. he is about to leave the jurisdiction of the Court,3 or
d. If he is a Government servant and cannot in the opinion of the Court, attend without detriment to
the public service,4 or
e. he is residing out of India and the Court is satisfied that his evidence is necessary. 5

Persons for whose examinations commission may be issued: Rule 4(1):

Any Court may in any suit issue a commission for the examination on interrogatories or otherwise of
any person,

a. If he resides beyond the local limits of the jurisdiction of the court or [(Order XXVI, Rule4(1)(a)]
b. if he is about to leave the jurisdiction of the Court, or [(Order XXVI, Rule4(1)(b)]
c. if he is a Govt. servant and cannot, in the opinion of the court, attend without detriment to the
public service, or [(Order XXVI, Rule4(1)(c)]
d. if he is residing out of India and the Court is satisfied that his evidence is necessary. Rule 5

To whom Commission may be issued: [Rule 4 (2) and (3)]

Rule 4(2): Such commission may be issued to any Court, not being a high Court, within the local limits
of whose jurisdiction such person resides; or to any pleaded or other person whom the Court issuing the
commission may appoint.

Rule 4(3): The Court on issuing any commission under this rule shall direct whether the commission hall
be returned to itself or to any subordinate Court.

Order for Issue of Commission: (Rule-2)

The Court may issue such a commission –

a. either sue motu (of its own motion) or
b. on the application of any party to the suit, or
c.) of the witness to be examined.

Evidence to be a part of Record: (Rule-7): The evidence taken on commission shall, subject to the
provisions of rule 8, form part of the record.

When deposition may be read in evidence: (Rule-8) : Evidence taken under a commission shall not
read as evidence in the suit without the consent of the party against whom the same is offered, unless.

a. The person, who gave the evidence, is beyond the jurisdiction of the Court or dead or unable for
sickness or infirmity to attend to be personally examined, or exempted from personal appearance
in Court, or is a person in the Service of the Government who cannot, in the opinion of the Court,
attend without detriment to the public service; or
 b. The Court in his discretion dispenses with the proof of any of the circumstances mentioned in
clause (a), and authorizes the evidence of any person being read as evidence in' the suit,
notwithstanding proof that the cause for taking such evidence by commission has ceased at the
time of reading the same.

Letters Of Request: (Section 77): In lieu of issuing a commission the Court may issue a Letter of
Request to examine a witness residing at any place not within India.

SUPPLEMENTAL PROCEEDINGS

Arrest Before Judgment (Order 38, Rule 1 to 4)

Introduction: The general rule is that a creditor having a claim against the debtor has first to obtain a
decree against him and then execute the said decree according to the provisions of Order XXI and may
adopt the mode of his arrest or attachment of his property in such execution, but under special
circumstances, the creditor, however can move for the arrest of the debtor or for the attachment of his
property even before the judgment in order to prevent any attempt on the part of the defendant to defeat
the execution of decree that may be passed against him.

Principle:

When can such order be passed: An application for arrest may be made by the plaintiff at any time
after the plaint is presented, even before the service of summons is effected-on the defendant and the
Court may pass the order of-arrest upon the satisfaction of the following two conditions:

a. The Plaintiffs suit must be bona fide and his cause of action must action be prima facie
unimpeachable subject to his proving the allegations in the plaint, and

b. The Court must have reason to-believe on adequate materials that unless this extraordinary power is
exercised there is a real danger that the defendant will remove himself or his property from the ambit
of the powers to the Court.

Grounds of arrest before judgment: (Order 38, Rule 1) Where al any stage of the suit, other than a suit of
the nature referred to in Section 16, clauses(a) to (d), the Court is satisfied, either by affidavit or otherwise –

a. that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court, or to
obstruct or delay the execution of any decree that may be passed against him :

a. has absconded or left the local limits of the jurisdiction of the Court, or
b. is about to abscond or leave the local limits of the jurisdiction of the Court, or
c. has disposed of or removed, from the local limits of the jurisdiction of the Court his property or
any part thereof, or

b. that the defendant is about to leave India under circumstances affording reasonable probability that
the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be
passed against the defendant in the suit.
The Court may issue a warrant to arrest the defendant and bring him before the Court to show cause
why he should not furnish security for his appearance.

Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of
the warrant any sum specified in the warrant as sufficient to satisfy the plaintiffs claims; and such sum
shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.

Security : (Rule 2)

i. Where the defendant fails to show such cause the Court shall order him either to deposit in the Court
money -or other property sufficient to answer the claims against him or to furnish security for his
appearance at the time when called upon while the suit is pending and until satisfaction of any decree
that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum
which may have been paid by the defendant under the proviso to the last preceding rule.

ii. Every surety for the appearance of a defendant shall bind himself in default of such appearance,
to pay any sum of money, which the defendant may be ordered to pay in the suit.

Procedure on application by surety to be discharged (Discharge of Security) : (Rule 3)

I. A surety for the appearance of a defendant may at any time apply to the Court in which he became
such surety to be discharged from his obligation.

ii. On such application being made, that Court shall summon the defendant to appear or, if it thinks fit,
may issue a warrant for his arrest in the first instance.

iii. On the appearance of the defendant in pursuance of the summons or warrant or on his voluntary
surrender, the Court shall direct the surety to be discharged from his obligation and shall call upon
the defendant to find fresh security. –

Procedure where defendant fails to furnish security or find fresh security: (Rule 3): Where the
defendant fails to comply with any order under rule 2 or rule 3, the Court may commit him to the civil
prison until the decision of the suit or where a decree is passed against the defendant until the decree
has been satisfied:

Provided that no person shall be detained in prison under this rule in any case for a longer period than
six months, nor for a longer period than six weeks when the amount or value of the subject matter of suit
does not exceed fifty rupees:

Provided also that no person shall be detained in prison under this rule after he has complied with such
order.

Arrest on Insufficient Grounds:6 According to section 95, where, in any suit in which an arrest or
attachment has been effected and-

a. it appears ,to the Court that such arrest or attachment was applied for on insufficient ground, or
b. the suit of the plaintiff fails and it appears to- the Court that there was no reasonable or probable
 ground for instituting the same,

on the application of the defendant the Court may, award against the plaintiff by its order such amount,
not exceeding fifty thousand rupees, as it deems reasonable compensation to the defendant for the
expense or injury (including injury to reputation) caused to him.

Provided that a Court shall not award under this section, an amount exceeding the limits of its pecuniary
jurisdiction.

Attachment Before Judgment (Order 38 Rules 5 - 12)

Object: In Sardar Govind Rao Vs Devi Sahai AIR 1982 S.C. 989, the Court held that "the sole object
behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree
if made would be satisfied. It is a sort of guarantee against decree becoming in fructuous for want of
property available from which the plaintiff can satisfy the decree."
Grounds: Rule 5(1): Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise that the
defendant, with intent to obstruct or delay the execution of any decree that may be passed against him -

a. is about to dispose of the whole or any part of his property, or

b. is about to remove the whole or any part of his property from the local limits of the jurisdiction of
the Court;

the Court may direct the defendant, within a time to be fixed by it, either to furnish security in such sum
as may be specified in the order, to produce and place at the disposal of the Court, when required, the
said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree,
or to appear and show cause why he should not furnish security.

Rule 5(2): The plaintiff shall, unless the Court otherwise directs, specify the property required to be
attached and estimated value thereof.

Rule 5(3): The Court may also in the order direct the conditional attachment of the whole or any portion
of the property so specified.

Rule 5(4): If an order of attachment is made without complying with the provisions of Sub-rule 1 of Rule
5, such attachment shall be void.

Principles : The remedy of an attachment before judgment is an extraordinary remedy and must be
exercised sparingly and strictly in accordance with the law and with the utmost care and caution," and
the Court must be satisfied about the following two conditions before making such order of attachment-

a. that the defendant is about to dispose of the whole or any part of his property; and
b. that the disposal is with the intention of obstructing or delaying the execution of any decree that
may be passed against him.

Chandrika Prasad Vs Hiralal, AIR 1924, Pat H C, Dawson Millar C.J.,- stated that" such a power is only
given when the Court is satisfied not only that the defendant is about to dispose of his properties or to
remove it from the jurisdiction of the Court, but also that his object in so doing is to obstruct or delay the
execution of any decree that may be passed against him, and so deprive the plaintiff, if successful, of the
fruits of the victory."

As per Rule 12, the plaintiff cannot apply and the Court cannot order the attachment or production of any
agricultural produce in possession of an agriculturist.

Right of Third Party

Rule 10: Attachment before judgment not to affect rights of strangers, nor bar decree holder from applying
for sale:

Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not
parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale
of the property under attachment in execution of such decree.

Re-attachment In Execution: (Rule 11 and 11-A)

Rule 11: Property attached before judgment not to be re-attached in execution of decree:

Where property is under attachment by virtue of the provisions of the Order 38, and a decree is
subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution
of such decree to apply for a re-attachment of the property.

Rule 11-A : Provisions applicable to attachment:

a. The provision of this Code (Order 21) applicable to an attachment made in execution of a decree
so far as may be, apply to an attachment made before judgment which continues after the
judgment by virtue of the provisions of rule 11.

b. An attachment made before judgment in a suit which is dismissed for default shall not become
revived merely by reason of the fact that the order for the dismissal of the suit for default has been
set aside and the suit has been restored.

Withdrawal of Attachment:

Rule 9: Removal of attachment when security furnished or suit dismissed:

Where an order is made for attachment before judgment; the Court shall order the attachment to be
withdrawn when the defendant furnishes the security required, together with security for costs of the
attachment or when the suit is dismissed.

TEMPORARY INJUNCTION (ORDER XXXIX RULES 1 TO 5)

Meaning of Injunction: An injunction is an order by the Court to a party to the effect that he shall do or
refrain from doing a particular act.

“A judicial process, by which one, who has invaded or is threatening to invade the rights (legal or suitable) of
another, is restrained from continuing or commencing such wrongful act."

According to Lord Halsbury: "An injunction is a judicial process whereby a party is ordered to refrain .
from doing or to do a particular act or thing." In the former case it is called a Restrictive Injunction and
the later case a Mandatory Injunction.
Characteristic of Injunction:

An injunction has three characteristics -

1. It is a judicial process,
2. The object thereby is restraint or prevention, and
3. The thing restrained or prevented is a wrongful act.

Classification of Injunction: The law relating to injunction is laid down in the Specific Relief Act, 1963
( Section 36 to 42 )

An injunction may be classified according to the relief granted or according to its nature or according to
the operation of Time

As regards the "time" of their operation the injunction may be divided into two categories-
i) Perpetual or (Permanent), and
ii) Interlocutory Or (Temporary)

i. Perpetual or (Permanent): A perpetual injunction restrains a party for ever from doing the specific
act and can be granted only on merits at the conclusion of the trial after hearing both the parties to
the suits. Section 37(2) of the Specific-Relief Act, 1963

ii. Interlocutory or (Temporary) :

Definition: A temporary injunction or interim injunction, restrains a party temporarily from doing the
specified act and can be granted only until the disposal of the suit or until the _ further orders of the
Courts. It is regulated by Order 39 rule 1 to 5 of the C.P.C. and may be granted at any stage of the suit.

Section 37(1) of the Specific Relief Act, 1963

Object: The primary object of granting temporary injunction is to maintain and preserve status quo at the time
of institution of the proceedings and to prevent any change in it until the final determination of the suit.

Grounds: [Order 39 Rule 1, 2 and also Sec. 94 (c)] A temporary injunction may be granted by the Court
under the following cases:

1. Where in any suit it is proved by affidavit or otherwise:

a. that any property in dispute in a suit ,is in danger of being wasted, damaged or alienated
by any party to the suit, or wrongfully sold in execution of a decree; or Rule 1 (a)
 b. the defendant threatens, or intends to remove or dispose of his property with a view to
defrauding his creditors, or Rule 1 (b)
c. the defendant threatens to disposes the plaintiff in relation to any property in dispute in
the suit, or Rule 1 (c)

The Court may by order grant a temporary injunction to restrain such act, or make such other order for the
purposes of staying and preventing the wasting, damaging, alienation, sale, removal or dispossession of the
property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property
in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders.

2. Where the defendant is about to commit a breach of contract, or other injury of any kind, or Rule 2(1)

3. Where the Court is of the opinion that the interest of justice so requires: Section 94(c)

Principles: The power to grant a temporary injunction is in the discretion of the Court, but this discretion,
should be exercised reasonably, judiciously and on sound legal principles. Generally, before granting the
injunction, the Court must be satisfied about the following conditions:

i) Prima facie case;

ii) Irreparable Injury; and
iii) Balance of convenience

i) Prima facie case: The applicant must make out a prima facie case in support of the right claimed
by him. The Court must be satisfied that there is a bona fide dispute raised by the applicant and
on the facts before the Court there is a probability of the applicant being entitled to the relief
claimed by him.

In deciding prima facie case; the Court is to be guided by the Plaintiffs case as revealed in the
plaint, affidavits or other materials produced by him... and "while determining whether a prima
facie case had been made out, the relevant consideration is, whether' on the evidence led, it was
possible to arrive at the conclusion in question and not whether that was the only conclusion which
could be arrived at that evidence."?

ii) Irreparable Injury: The applicant must further satisfy the Court that he will suffer irreparable injury
if the injunction as prayed is not granted, and there is no other remedy open to him by which he
can protect himself from the consequences of apprehended injury.
The expression "irreparable injury" means that the injury must be material one, Le. which cannot
be adequately compensated by damages.

iii) Balance of Convenience: The balance of convenience must be in favour of the applicant. In
other words the Court must be satisfied that the compensation, mischief or inconvenience which
is likely to be caused to the applicant by withholding the injunction will be greater than that which
is likely to be caused to the opposite party by granting it.

Discretionary Remedy: Since grant of injunction is discretionary and an equitable relief, even if all the
conditions are satisfied, the Court may refuse to grant it for some other reasons e.g., on the ground of delay,
latches or acquiescence or where the applicant has not come with clean hands or has suppressed material
facts, or where monetary compensation is adequate relief.

Notice: The Court shall before granting an injunction, give notice to the opposite party, except where it
appears that the object of granting the injunction would be defeated by the delay. 8

According to proviso to Rule 3, when an ex parte injunction is proposed to be given the Court has to
record the reasons for coming to the conclusion that the object of granting the injunction would be
defeated by the delay and the Court shall order the applicant -

a. to deliver or to send by registered post a copy of the application for injunction together with -
i) a copy of affidavit filed in support of application,
ii) a copy of the Plaint, and
iii) copies of documents on which the applicant relies, and

b) to file, on the day on which injunction is granted or on the day immediately following that day, an
affidavit stating that the copies aforesaid have been so delivered or sent immediately to the
opposite party.

In case of ex-parte injunction, the Court shall make an endeavour to finally dispose of the application within
30 days from the date on which the ex-parte injunction was granted. Where the Court finds it difficult to dispose
of the application within the period of 30 days, the reasons are required to be recorded. (Rule 3-A)

An order of injunction may be discharged, varied or set aside by the Court on application being made by
any party dissatisfied with such order;9 or where such discharged, variation or set aside has been
necessitated by the change in the circumstances, or where the Court is satisfied that such order has
caused undue hardship to the other side.

Provided that if an application for temporary injunction or in any affidavit supporting such application, a
party has knowingly made a false or misleading statement in relation to a material particular and the
injunction was granted without "giving" notice to the opposite party, the Court shall vacate the injunction
unless, for reasons to be recorded, it considers that it is not necessary to do in the interest of justice."
First Proviso to Rule 4
Provided further that where an order for injunction has been passed after giving a party an opportunity of being
heard, the order shall not be discharged, varied or set-aside on the application of that party except where such
discharged, variation or set aside has been necessitated by the change in the circumstances, or unless the
Court is satisfied that" the order has caused hardship to that party. Second Proviso to Rule 4

Provided also that if at any stage of the suit it appears' to the Court that the Party" in whose favour the
order of injunction exists is dilating the proceedings or is otherwise abusing the process of the Court, it
shall set aside the order for injunction. (Odisha State Amendment)

Consequences Of Disobedience Or Breach Of Injunction: Section 94(c) and Rule 2-A of Order 39 provide
for the consequences of disobedience or breach of an order of an injunction issued by the Court. The penalty
for disobedience or breach of injunction may be either arrest or attachment of his property or both of the
opposite party who has committed breach. However, the detention in civil prison shall not exceed three months
and the attachment of property shall not remain in force for more than one year. [Rule
2-A (1)]

If the disobedience or breach still continues, the property attached may be sold and out of the proceeds,
the Court may award such compensation as it thinks fit to the injured party. [Rule 2-A (2)]

The transferee Court can also exercise his power and can punish for breach of injunction granted by the
transferor Court. [Rule 2-A (1)]

Injunction on insufficient grounds: When in any suit in which an order of temporary injunction has been
obtained by the plaintiff on insufficient grounds, or where the suit of the plaintiff fails and it appears to the Court
that there was no reasonable or probable ground for instituting it, on application being made by the defendant,
the Court may order the plaintiff to pay such amount not exceeding one thousand rupees, as it deems a
reasonable compensation to the defendant for the expense or injury to reputation caused to him. 10

An order declining to grant injunction and issuing notice to defendants V/s Rule 3 of Order 39 is not
appealable under Order 43 Rule 1 (2) of the Code but when the ex-parte interim injunction is refused
illegally, the Court can in exercise of its power of Superintendence under Section 115 of the Code, grant
ad-interim injunction.

Interlocutory Orders (Order XXXIX Rules 6 to 10)

Meaning: Interim orders or interlocutory orders are those orders passed by a Court during the pendency
of a suit or proceeding which do not determine finally the substantive rights and liabilities of the parties
in respect of the subject-matter of the suit or proceeding.

After the suit is instituted by the plaintiff and before it is finally disposed of, the Court may make
interlocutory orders as may appear to the Court to be just and convenient. [Section 94 (e)]

Interim orders or interlocutory orders are made in order to assist the parties to the suit in the prosecution
of their case or for the purpose of protection of the subject matter of the suit.

Interlocutory Orders Under Order XXXIX:

1. Power of Court to Order Interim Sale: On the application of any party (an application by the
plaintiff11 under Rules 6 or 7 may be made at any time after the institution of the suit while by the
defendant,12 it may be made at any time after appearance) to the suit, the Court may, order the
sale of any moveable property, being the subject-matter of such suit, or attach before judgment
in such suit, which is subject to speedy and natural delay, or which for any just and sufficient
cause it may be desirable to have been sold at once.13

2. Detention, Preservation, Inspection, etc, of Subject-matter of Suit : The Court may make an order
for detention, preservation and inspection of any property which is the subject-matter of the suit, or as
to which any question may arise therein;14 and authorize any person to enter upon or into any land or
building in the possession of any other party to such suit;15 and authorize any sample to be taken, or
any observation to be made or experiment to be tried, which may seem necessary or expedient for
the purpose of obtaining full information or evidence.16

Notice to Opposite Party: No order under rule 6 or 7 shall be made without giving notice to the
 opposite party, except where it appears to the Court that the object of making such order would
be defeated by delay.17

3. When party may be put in immediate possession of land, the subject matter of suit:
Where land paying revenue to government, or a tenure liable to sale, is the subject matter of a suit, or the
party in possession of such land or tenure neglects to pay the government revenue, or the rent due to. the
proprietor of the tenure, as the case may be, and such land or tenure is consequently ordered to be sold,
any other party to the suit claiming to have an interest in such land or tenure may, upon payment of the
revenue or rent due previously to the sale (and with or without security at the discretion of the court), be put
in immediate possession of the land or tenure; and the court in its decree may award against the defaulter
the amount so paid, with interest thereon at such rate as the court thinks fit, or may charge the amount so
paid, with interest thereon at such rate as the court orders, in any adjustment of accounts which may be
directed in the decree passed in the suit. 18

4. Deposit of money, etc., in court: Where the subject matter of a suit is money or some other
thing capable of delivery and any party thereto admits that he holds such money or other things
as a true for another party, or that it belongs or is due to another party, the court may order the
same to be deposited in court or delivered to such last named party, with or without security,
subject to the further direction of the court.19

RECEIVER (ORDER XL)

Meaning: The word has not been defined in the Code. The same may be defined as under:-

"The receiver is an important person appointed by the Court to collect and receive, pending the
proceedings, the rents, issues and profits of land, or personal estate, which it does not seem reasonable
to the Court that either party should collect or receive, or for enabling the same to be distributed among
the persons entitled."20

The receiver is appointed for the benefit of all concerned; he is the representative of the Court, and for
all parties interested in the litigation, wherein he is appointed. 21 He is an officer or representative of the
Court and he functions under its directions.22

Appointment: In order to prevent the ends of justice from being defeated the Court may, if it is so prescribed,
appoint a receiver of any property and enforce the performance of his duties by attaching and selling his
property.23 The remuneration for the services of the receiver shall be paid by the order of Court. 24

Order XL : Rule 1 (1) provides that:-

Where it appears to the court to be just and convenient, the court may by order-

a. appoint a receiver of any property, whether before or after decree;

b. remove25 any person from the possession or custody of the property;
c. commit the same to the possession, custody or management of the receiver; and
confer upon the receiver all such powers, as to bringing and defending suits and for the realization,
management, protection, preservation and improvement of the property, the collection of the rents and profits
thereof, the application and disposal of such rents and profits, and the execution of
documents as the owner himself has, or such of those powers as the court thinks fit.

Duties and Enforcement thereof:26

Rule 3: Duties : Every receiver so appointed shall-

a. furnish such security (if any) as the court thinks fit, duly to account for what he shall receive in
respect of the property;
b. submit his accounts at such periods and in such form as the court directs;
c. pay the amount due from him as the court directs; and
d. be responsible for any loss occasioned to the property by his willful default or gross negligence.
e. fails to pay the amount due from him as the court directs, or occasions loss to the property by
his willful default or gross negligence,

Rule 4: Enforcement of Receiver's Duties: Where a receiver-

a) Fails to submit his accounts at such periods and in such form as the court directs, or
b) Fails to pay the amount due from as the courts directs, or
c) Occasions loss to the property by his willful default or gross negligence,

the court may direct his property to be attached and may sell such property, and may apply the proceeds
to make good any amount found to be due from him or any loss occasioned by him, and shall pay the
balance (if any) to the receiver.

According to rule 5, a collector may be appointed as a receiver where the property is land paying revenue
to the Government, or land of which the revenue has been assigned or redeemed, and the court considers
that the interests of those concerned will be promoted by the management of the Collector, the court
may, with the consent of the Collector, appoint him to be receiver of such property.

CAVEAT (Section 148-A)

Meaning: The word has not been defined in the Code. Literally, means "let him beware", a forma notice.
It is a caution registered in a public Court or office to indicate to the officials that they are not to act in the
matter mentioned in the caveat without first giving notice to the caveat.

Caveat meant "anything in the nature of an opposition at any stage, and is not confined to the opposition
at the great seal, which was the meaning of 'caveat' under the old practice". 49

It is a legal notice given by an interested party to some officers not to do a certain act until the party is
heard in opposition.

Provision: Section 148-A of the Code provides for lodging of a caveat.

Section 148-A: Right to lodge a caveat:

1. Where an application is expected to be made, or has been made, in a suit or proceeding instituted,
or about to be instituted, in a Court, any person claiming a right to appear before the Court on the
hearing of such application may lodge a caveat in respect thereof.

2. Where a caveat has been lodged under sub-section (1), the person by whom the caveat has been
lodged (hereinafter referred to as the caveat or) shall serve a notice of the caveat by registered post,
acknowledgment due, on the person by whom the application has been, or is expected to be, made
under sub-section (1).
3. Where, after a caveat has been lodged under sub-section (1), any application is filed in any suit or
proceeding, the Court shall serve a notice of the application on the caveator.

4. Where a notice of any caveat has been served on the applicant, he shall forthwith furnish the caveator, at
the caveator's expense, with a copy of the application made by him and also with copies of any paper or
document which have been, or may ,be, .filed by 'him in support of the application.

5. Where a caveat has been lodged under sub-section (1), such caveat shall not remain in force after
the expiry of ninety days from the date on which it was lodged unless the application referred to in
sub-section (1) has been made before the expiry of the said period.

Where caveat lie: According to S. 148-A, a caveat can be lodged in a suit or proceeding. The expression
'Civil Proceeding' in S. 141 of the, Code includes all proceedings, which are not original proceedings. 50

Where caveat does not lie : The provisions of section 148-A are applicable only in the cases where the'
caveator is entitled to be heard before any order is made on the application already filed or proposed to
be filed, but does not apply in cases where the Code does not contemplate notice.

Who can file caveat: A necessary as well as proper party may lodge a caveat U/s 148-A. A caveat may be
filed by any person who is going to be affected by an interim order likely to be passed on an application which
is expected to be made in a suit or proceeding instituted or about to be instituted in a Court. 51

Who may not file caveat: A stranger to the proceeding or a person supporting the application for interim
relief made by the applicant cannot lodge a caveat.

Time Limit: According to sub-section (5), a caveat filed U/s 148-A (1) shall remain in force for ninety
days from the date of its filing.

Failure to hear Caveator: Once a caveat is filed, it is a condition precedent for passing an interim order to
serve a notice of the application on the caveator who is going to be affected by the interim order. But an interim
order passed without hearing the caveator is not without jurisdiction and operates unless set-aside.

INHERENT POWERS OF COURTS (SECTIONS 148, 149 AND 151 TO 153-A)

General: Every Court is constituted for the purpose of administering justice between the parties and, therefore,
must be deemed to possess, as a necessary corollary, all such powers as may be necessary to do the right
and to undo the wrong in the course of administration of justice. The Code is a procedural law and the
provisions thereof must be liberally construed to advance the cause of justice and further its ends.

The inherent powers are in addition to the powers specifically conferred on the Court by the Code. They
are complementary to those powers and the Court is free to exercise them for the ends of justice or to
prevent the abuse of the process of the Court.

The Code is not exhaustive and for the simple reason that the legislature is incapable of contemplating
all the possible circumstances which may arise in future litigations, inherent powers come to the rescue
in such unforeseen circumstances.

As Ragbubar Dayal, Justice in Manoharlal. V Seth Heeralal AIR 1962 SC, rightly states: ''The inherent
power has not been conferred upon the Court, it is a power inherent in the Court by virtue of its duty to
do justice between the parties before it." Thus, this power is necessary in the interest of justice. Sections
148,149,151,152,153 and 153-A of the Code enact the Law relating to the inherent powers of a Court in
different circumstances.

1. Enlargement of time: Section 148

2. Payment of Court Fees: Section 149
3. Under Section 151:-
i) Ends of Justice: Section 151
ii) Abuse of Process of Court: Section 151
4. Amendments of Judgments, Decrees, Orders and Others Records: Sections 152, 153 and 153-A

1. Enlargement of time Section 148: Provides that where any period is fixed or granted by the Court
for the doing of any act, the Court has power to enlarge the said period even if the original period has
expired on fulfillment of two Conditions:

i) A period must have been fixed or granted by the Court; and

ii) Such period must be for doing an act prescribed or allowed by the Code.

2. Payment of Court Fees Section 149: Empowers the Court to allow a party to make up the deficiency
of Court Fees payable on a plaint, memorandum of appeal, etc. even after the expiry of the period of
limitation prescribed for filing of such suits, appeals etc. Section 4 of Court Fees act, 1870 provides
that no document chargeable with Court Fee under the Act shall be filed or recorded in any Court of
Justice, unless the required Court fee is paid.

This section is a sort of proviso to that rule by allowing the deficit to be made good within the time
fixed by the Court. If the proper Court fee is not paid at the timing of filing suit or appeal etc., but the
deficit Court fee is paid within the time fixed by the Court, it cannot be treated as time barred. The
defective document is retrospectively validated for the purposes of limitation as well as Court fees.

3. Ends of Justice: Section 151: The inherent powers saved by section 151 can be used to secure the
 ends of justice. Thus the Court can recall its own Orders and correct mistakes, can set aside as ex
parte order against the party, etc. etc. What would meet the ends of justice would always depend
upon the facts and circumstances of each case and the requirements of justice.

4. Abuse of process of Court: Section 151: The inherent powers saved by section 151 can also be used
to prevent the abuse of the process of a Court, which may be committed by a Court itself or by a party.

Abuses by a Court: Where a Court employs a procedure in doing something which it never intended to
do and there is miscarriage of justice, the injustice so done to the party must be remedied on the basis of
the doctrine actus curiae neminem gravabit (an act of the Court shall harm no one)

Abuses by a Party: e.g., by obtaining benefits by practising fraud on the Court, or upon a party to
the suit, or circumventing the statutory provisions etc, etc.

5. Amendments of Judgments, Decrees, Order and Other Records : Sections 152, 153 and 153-A:

Sections 152 : Enacts the clerical or arithmetical mistakes in judgments, decrees and orders arising
from any accidental slip or omissions; may at any time be corrected by the Court either of its own
motion (suo moto) or on application of any of the parties.

The section is based upon two important principles:

i) an act of the Court should not prejudice any party, and
ii) it is the duty' of the Courts to see that their records are true and they
represent the correct state of affairs.

Illustration: A files a suit against B for Rs. 10,000/- and interest in a Court X. The Court passes a decree
for RS.1,000/- as prayed. The decree can be amended under this section,

A files a suit against B for Rs. 10,000/- and interest in a Court X. The Court passes a decree for
Rs.5,OOO/-only and nothing more. A applies to amend the decree by adding a prayer for the interest.
The decree can not be amended under this section. If aggrieved by the decree, A may file an appeal or
an application for review.

Sections 153: Confers a general power on the Court to amend defects or errors in "any proceeding in a
suit" and to make all necessary amendments for the purpose of determining the real question at the issue
between the parties to the suit or proceedings.

Sections 153-A: Provides that where the appellate Court dismisses an appeal summarily under Order 41,
Rule 11, the power of amendment under Section 152 can be exercised by the Court of the first instance.

Ambit and Scope: Of inherent powers of a Court u/s 151 by Subba Rao, Justice, as he then was in Ram
Chand V Kanhayalal AIR, 1966 SC 1899, after considering all the legal cases on the subject pronounced;

"The inherent power of a Court is in addition to and complementary to the powers expressly conferred under
the Code. But the power will not be exercised if its exercise is inconsistent with, or comes into conflict with,
any of the powers expressly or by necessary implication conferred by the other provisions of the Code. If there
are express provisions exhaustively covering a particular topic, they give rise to a necessary

implication that no power shall be exercised in respect of the said topic otherwise than in manner prescribed
by the said provisions. Whatever limitations are imposed by construction on the provisions of section
151 of the Code, they do not control the undoubted power of the Court conferred under Section 151
of the Code to make a suitable order to prevent the abuse of the process of the Court.”