UNIT 1 & 2

Injunction
The law of injunction in our country is having its origin in the Equity Jurisprudence inherited
from England who borrowed it from Roman Law. It is basic principle of our law that if there is a
right there should be a remedy. An injunction is a Judicial Remedy prohibiting persons from
doing a specified act called a restrictive injunction or commanding them to undo some wrong
or injury called a mandatory injunction and may be either temporary, interim or interlocutory
or permanent. Relief of injunction can not be claimed as of right. It is discretionary, equitable
relief. The relief of injunction must be granted where it is absolutely necessary. It may be
granted where it would help in preservation of peace and public order. Where there is
possibility of breach of peace of public order, the Court ought to proceed with caution. An
injunction is a remedy against an individual and should be issued only in respect of acts done
by him against whom it is sought to be enforced.

An Injunction is a judicial process whereby a party is required to do, or to

refrain from doing, any particular act. Oxford dictionary meaning of word Injunction is “a
Judicial warning or a Judicial order restraining a person from an action or compelling a person
to carry out a certain act.”

It is a remedy in the form of an order of the court addressed to a particular person that either
prohibits him from doing a continuing to do a particular act (Prohibitory injunction); or orders
him to carry out a certain act(Mandatory injunction.)

KINDS OF INJUNCTIONS; Injunctions are mainly of two kinds temporary and perpetual
injunction.

A party against whom a perpetual injunction is granted is thereby restrained forever from
doing the act complained of. A Perpetual injunction can only be granted by 3 a final decree
made at the hearing and upon the merits of the suit. On the other hand a temporary or interim
injunction may be granted on an interlocutory application at any stage of a suit. The injunction
is called temporary as it is until the suit is disposed of or until the further order of the Court.

Injunctions are (I) preventive, prohibitive or restrictive, that is when they prevent, prohibit or
restrain someone from doing something; or (II) mandatory, that is, when they compel,
command or order person to do something. Again, an injunction is granted without finally
deciding an application for injunction and operates till the disposal of the application.

OBJECT

The primary purpose of granting interim relief is the preservation of property in dispute till
legal rights and conflicting claims of the parties before the court are adjudicated. The court in
the exercise of sound judicial discretion can grant or refuse to grant interim relief.
LEGAL PROVISIONS Indian courts regulate the granting of a temporary injunction in
accordance with the procedure laid down under Sections 94, 95 and Order XXXIX of the Civil
Procedure Code, whereas, temporary and perpetual injunctions are prescribed by Sections 36
to 42 of the Specific Relief Act.

(A) TEMPORARY INJUNCTION -SCOPE :

It provides that when the defendant threatens to dispossess the plaintiff or otherwise
cause injury to the plaintiff in relation to any property in dispute in suit, the Court may
grant a temporary injunction to restrain such an act or make other order for the
purpose of preventing the dispossession of the plaintiff or for the purpose of
preventing the causing of injury to the plaintiff in relation to any property in dispute.

If the defendants are creating third party interest/rights as he is trying to dispose of part of the
property, the plaintiff can claim the injunction. .Injunction to restrain repetition or
continuance of breach

(1) In any suit for restraining the defendant from committing a breach of' contract or
other injury of any kind, whether compensation is claimed in the suit or not, the
plaintiff may, at any time after the commencement of the suit, and either before or
after judgement, apply to the Court for a temporary injunction to restrain the
defendant from committing the breach of contract or injury complained, of, or any
breach of contract, or injury of a like kind arising cut of the same contract or relating
to the same property or right.

(2) The Court may be order grant such injunction, on such terms as to the of the
durations injunction, keeping an account, giving security, or otherwise, as the Court
thinks fit.

According to section 2A- Consequence of disobedience or breach of

injunction

(1) In the case of disobedience of any injunction granted or other order made under
rule 1 or rule 2 or breach of any of the terms on which the injunction was granted or
the order made, the Court granting the injunction or making the order, or any Court to
which the suit or proceeding is transferred, may order the property of the person
guilty of such disobedience or breach to be attached, and may also order such
person to be detained in the civil prison for a term not exceeding three months,
unless in the meantime the Court directs his release.

(2) No attachment made under this rule shall remain in force for more than one
year, at the end of which time if the disobedience or breach 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 and shall pay the balance, if any, to
the party entitled thereto.
Temporary injunction is a provisional remedy that is invoked to preserve the subject matter in
its existing condition. Its purpose is to prevent dissolution of the plaintiff's rights. The main
reason for use of a temporary injunction is the need for immediate relief.

Section 94 (c) and (e) of Code of Civil Procedure contain provisions under which the Court
may in order to prevent the ends of justice from being defeated, grant a temporary injunction
or make such other interlocutory order as may appear to the Court to be just and convenient.
Section 95 of Civil Procedure Code further provides that where in any suit a temporary
injunction is granted and it appears to the Court that there were no sufficient grounds, or the
suit of the plaintiff fails and it appears to the Court that there was no reasonable or, the.

Before granting injunction, The Court shall in all cases, except where it appears that
the object of granting the injunction would be defeated by the delay, before granting
an injunction, direct notice of the application for the same to be give to the opposite
party:

Provided that, where it is proposed to grant an injunction without giving notice of the
application to the opposite party, the Court shall record the reasons for its opinion that
the object of granting the injunction would be defeated by delay, and require the
applicant-

(a) to deliver to the opposite party, or to send to him by registered post,

immediately after the order granting the injunction has been made, a copy of the
application for injunction together with-

(i) a copy of the affidavit filed in support of the application;

(ii) a copy of the plaint; and

(iii) copies of documents oil which the applicant relies, and

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

Where an injunction has been granted without giving notice to the opposite
party, the Court shall make an endeavour to finally dispose of the application
within thirty days from the date on which the injunction was granted; and where
it is unable so to do, it shall record its reasons for such inability

PRINCIPLES: While granting temporary injunction the tests be applied are;

(1)Whether the plaintiff has a prima facie case,

(2) Whether the balance of convenience is in favour of plaintiff and

(3) Whether the plaintiff would suffer irreparable injury if his prayer for

temporary injunction is disallowed.

 The court while granting or refusing to grant injunction should exercise sound judicial
discretion to find the amount of substantial mischief or injury which is likely to be caused to
the parties, if the injunction is refused, and compare it with that which is likely to be caused to
the other side if the injunction is granted. If on weighing competing possibilities or probabilities
of likelihood of injury and if the court considers that, pending the suit, the subject matter
should be maintained in status quo, an injunction would be issued. Thus the court has to
exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction
pending the suit. At the stage of deciding the application for temporary injunction, the Court is
not required to go into the merits of the case in detail. Generally, before granting the
injunction, the court must be satisfied about the following aspects:

One who seeks equity must come with clean hands.

One who seeks equity must do equity.

Whenever there is right there is remedy. The power to grant a temporary injunction is at the
discretion of the court. This discretion, however, should be exercised reasonably, judiciously
and on sound legal principles. Injunction should not be lightly granted as it adversely affects
the other side. The grant of injunction is in the nature of equitable relief, and the court has
undoubtedly power to impose such terms and conditions as it thinks fit. Such conditions,
however, must be 6 reasonable so as not to make it impossible for the party to comply with
the same and thereby virtually denying the relief which he would otherwise be ordinarily
entitled to.

THE OBJECT OF THE INTERLOCUTARY INJUNCTION: As per Rule 3 of Order XXXIX of the C.P.C.
the power to grant an exparte interim injunction in exceptional circumstances based on sound
judicial discretion to protect the plaintiff from apprehended injury may be granted. As per Rule
3A of Order XXXIX of Civil Procedure Code where an injunction has been granted without giving
notice to the opposite party, the Court shall make an endeavor to finally dispose of the
application within 30 days from the date on which the injunction was granted and where it is
unable so to do, it shall record its reasons for such inability.

BASIC INGREDIENTS:

(A) PRIMA FACIE CASE: It is well settled that in granting or refusing to grant
temporary injunction, the Court has very wide discretion. The exercise of the
discretion should be in a judicial manner, depending upon the circumstances of
each case. No hard and fast rule can be laid down for the guidance of the Court to
that effect. It is well settled that while granting injunction plaintiff must show: (i)
existence of prima facie case, (ii) balance of convenience and 7 (iii) the injury must
be of an irreparable loss that cannot be compensated in terms of money.
 The first rule is that 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 bonafide dispute raised by the
applicant, that there is a strong case for trial which needs investigation and a decision on
merits and on the facts before the court there is a probability of the applicant being
entitled to the relief claimed by him. The existence of a prima facie right and infraction of
such right is a condition precedent for grant of temporary injunction. The burden is on the
plaintiff to satisfy the court by leading evidence or otherwise that he has a prima facie case
in his favour. Prima facie case, however, should not be confused with a case proved to the
hilt. It is no part of the court's function at that stage to try to resolve a conflict of evidence
nor to decide complicated questions of fact and of law which call for detailed arguments
and mature considerations. These are matters to be dealt with at the trial. In other word,
the court should not examine the merits of the case closely at that stage because it is not
expected to decide the suit finally. In deciding a prima facie case, the court is to be guided
by the plaintiff's case as revealed in the plaint, affidavits or other materials produced by
him. The plaintiff should come before the Court with clean hands. If he suppresses material
facts, documents then he is not entitled for the relief of injunction and further points of
balance 8 of convenience, irreparable injury even not required to be considered in such
case.

(B) IRREPARABLE INJURY: The existence of the prima facie case alone does not only entitle
the applicant for a temporary injunction. The applicant must further satisfy the court about
the second condition by showing that he will suffer irreparable injury if the injunction as
prayed is not granted, and that there is no other remedy open to him by which he can
protect himself from the consequences of apprehended injury. In other words, the court
must be satisfied that refusal to grant injunction would result in 'irreparable injury' to the
party seeking relief and he needs to be protected from the consequences of apprehended
injury. Granting of injunction is an equitable relief and such a power can be exercised when
judicial intervention is absolutely necessary to protect rights and interests of the applicant.
The expression irreparable injury however does not mean that there should be no
possibility of repairing the injury. It only means that the injury must be a material one, i.e.,
which cannot be adequately compensated by damages. An injury will be regarded as
irreparable where there exists no certain pecuniary standard for measuring damages.

(C)BALANCE OF CONVENIENCE: The third condition for granting interim injunction is that the
balance of convenience must be in favour of the applicant. In other words, the court must be
satisfied that the 9 comparative mischief, hardship or inconvenience which is likely to be
caused to the applicant by refusing the injunction will be greater than that which is likely to be
caused to the opposite party by granting it.

(D) OTHER FACTORS: There are some other factors which must be considered by court while
granting injunction. The relief of injunction may be refused on the ground of delay, laches or
acquiescence or whether the applicant has not come with the clean hands or has suppressed
material facts, or where monetary compensation is adequate relief. As per amended Sec.9-A
(2) of the C.P.C. The Court is empowered to grant such interim relief as it may consider
necessary, pending determination by it of the preliminary issue as to the jurisdiction.

INHERENT POWER: There was a conflict of Judicial opinion on the question whether the Court
could issue a temporary injunction U/s.151 of Civil Procedure Code when the case did not fall
within the term of Order XXXIX Rule 1 and 2 of Civil Procedure Code.

However now that point is concluded by the Hon'ble Apex Court in

the case of Manmohanlal Vrs. Seth Hiralal reported in A.I.R. 1962 Supreme Court
527 by observing that the Court has powers U/s.151 of Civil Procedure Code to issue
an injunction in cases not falling within Order XXXIX Rule 1 and 2; however that
discretion should be exercised judiciously. For the purpose of implementation of an
injunction order Police protection can be ordered U/s.151 of Civil Procedure Code.
However the Court shall not order for Police protection on the basis of an ad-interim
ex-parte order and only final order under Order XXXIX Rule 1,2 can be enforced with
police assistance. An order granting Police aid without giving a chance to the
defendant to submit his objections is not proper.

In Deity Kashiswar Mahadev vs. Gram Sabha: AIR 1973 H.P. 2, the court
pointed out that the plaintiff need not prove his title to the property in
temporary injunction petition and that it is enough if the plaintiff can show
that he has a fair question to raise as to existence of right of which he
alleges and can satisfy the court that the property in dispute should be
preserved in its present actual condition until such question is disposed of.

(B) PERPETUAL INJUNCTION-

Section 37(2) of Specific Relief Act says that a perpetual injunction can only be
granted by the decree made at the hearing and upon merits of the suit. The
defendant is thereby perpetually enjoined from the assertion of a right from the
commission of an act, which would be contrary to the rights of the plaintiff.
Section 38 of the Specific Relief Act further provides a circumstance where a
perpetual injunction may be granted in favour of the plaintiff to prevent the
breach of obligation existing in his favour. In contractual matters when such
obligation arises, the Court has to seek guidance by the rules and provisions
contained in Chapter II of the Specific Relief Act dealing with the specific
performance of contracts. Sub-section (3) of Section 38 of Specific Relief Act in
clauses (a), (b), (c) and (d) further illustrates the circumstances wherein perpetual
injunction may be granted by the Court. That means in view of the section 38 (3)
when the defendant invades or threatens to invade the plaintiff's right, or
 enjoyment of property the Court may grant a perpetual injunction. As per Sec.38
of Specific Relief Act the plaintiff must establish apprehended breach of an
obligation existing in his favour, whether expressly or by implication.
Refusal of Injunction:- Section 41 of the Specific Relief Act, 1963, provides various
contingencies in sub section (a) to (j) in which the injunction cannot be granted.
Section 41 of the Act deals with when injunction cannot be granted, (a) to restrain any
person from prosecuting a judicial proceedings unless such a restrain is necessary to
prevent a multiplicity of the proceedings, (b) to restrain any person from instituting or
prosecuting any proceeding in a Court not subordinate to that from which the
injunction is sought,(c) to restrain any person from applying to any legislative body,
(d) to restrain any person from instituting or prosecuting any proceedings in criminal
matter, (e) to prevent the breach of a contract the performance of which would not
be specifically enforced,(f) to prevent on the ground of nuisance, an act of which it is
not reasonably clear that it will be a nuisance, (g) to prevent a continuing breach in
which the plaintiff has acquiesced, (h) when equally efficacious relief can certainly be
obtained by any other mutual mode of proceedings except in case of breach of trust,
(i) when the conduct of the plaintiff or his agent has been such as to dis entitle him to
the assistant to the Court, (j) when the plaintiff has not personal interest in the
matter. 31. Under normal parallence, while granting perpetual 12 injunction, the
Court has to see the nature of right being invaded, whether the compensation would
be an inadequate remedy for its redressal, there is no standard for ascertaining the
actual damage caused by such invasion, there shall not have efficacious remedy to the
plaintiff in respect of such invasion, the plaintiff would not have been guilty of delay
and latches and his conduct is not unfair. Aspect of comparative hardship also
assumes importance.
(C) PROHIBITORY INJUNCTION- It is the remedy by which a person can be refrained
or prohibited from doing something.
(D) MANDATORY INJUNCTION- Interlocutory mandatory injunctions are granted
generally to preserve or restore status-quo of the last non contested status which
preceded the pending controversy until the final hearing, when full relief could be
granted or to compel the undoing of those acts which have been illegally done or the
restoration of that which was wrongfully taken from the complaining party. Before
issuing temporary mandatory injunction the Court must be satisfied that the effect of
injunction would be to preserve status-quo and to prevent irreparable injury. A
temporary mandatory injunction can be issued only in case of extreme hardship and
compelling circumstances and mostly in those cases when status-quo existing on the
date of institution of suit is be restored. The jurisdiction to issue mandatory injunction
is discretionary jurisdiction which can be exercised only in a case which falls strictly
within four corners of provisions enumerated under section 37 to 41 of Specific Relief
Act. Mandatory injunctions are contemplated under section 13 39 of the Specific
Relief Act, where it is necessary to prevent the breach of an obligation and the erring
 party may be compelled to perform certain acts. Section 40 provides for granting
damages in lieu of or in addition to injunction. While section 41 provides
circumstances when the injunction should be refused. Section 42 provides for grant of
injunction to perform a negative agreement. The law of injunctions is vast and
expansive and it is based on the principles of equity. The Court should act according
to the justice, equality and conscience, when there is no specific rules applicable to
the circumstances of the case. Section 39 says to prevent a breach of obligation, it is
necessary to compel the performance of certain acts which the Court is capable of
enforcing. The Court may in its discretion grant an injunction to prevent the breach
complained of and also to compel performance of .

Balance of convenience is the inconvenience of the plaintiff which shall far

exceed the convenience of his opponent in the event of refusal of the relief.
Irreparable loss is the loss the plaintiff suffers if order is not granted to him
and that the loss would be such that it cannot be compensated monetarily
or otherwise.

Temporary injunction can be claimed against all or against a few

defendants only, depending upon the fact as to who is interfering with the
rights of the plaintiffs.

It is not uncommon for asking for and obtaining temporary injunction

against a person who is not a party to the suit, also where the situation so
demands. It has been referred to as plaintiff in these pages for the sake of
convenience only since it is open not only for the plaintiff but for the
defendant also to seek for temporary injunction in appropriate cases.

Once a temporary injunction is granted, it is open to the defendant to ask

the court to vacate the same, in appropriate cases, on the ground of
changed circumstances [Order 39 Rule 4], Temporary injunction has great
legal sanctity. Once a person is temporarily injuncted from doing an act,
the person suffers penal consequences if he violates the order.
CONCLUSION-An injunction is an equitable remedy and as such attracts the application of the
maxim that he who seeks equity must do equity. Granting of injunction is entirely in the
discretion of the Court, though the discretion is to be sound and reasonably guided by Judicial
Principles. The power to grant a temporary injunction is at the discretion of the court. This
discretion, however, should be exercised reasonably, judiciously and on sound legal principles.
Injunction should not be lightly granted as it adversely affects the other side. The grant of
injunction is in the nature of equitable relief, and the court has undoubtedly power to impose
such terms and conditions as it thinks fit. Such conditions, however, must be reasonable so as
not to make it impossible for the party to comply with the same and thereby virtually denying
the relief which be would otherwise be ordinarily entitled to. The general rule is that grant of an
injunction is a matter of discretion of the court and it cannot be claimed as of right. However,
the discretion has to be exercised in a judicious manner and in accordance with the provisions
relating to the grant of injunction contained in the specific Relief Act. It is well settled that no
interim injunction would be issued if final relief cannot be granted. When plaintiff has no
personal interest in the matter, injunction cannot be granted.

SUIT BY OR AGAINST GOVERNMENT-

According to section 79 C.P.C. suit by or against govt. If, in name of central government shall
be filed in name of Union Of India and if the suit is to be filed by or against state government it
shall be filed in the name of concerned state govt. To file the suit against govt. Officer it is
mandatory to give two months notice, only on ground given under section 80 sub clause (2)
exemptions from giving notice can be allowed. It must now be regarded as settled law that
a suit against the Government or a public officer, to which the requirement of a prior
notice under S. 80, C.P.C. is attracted, cannot be validly instituted until the expiration of
the period of two months next after the notice in writing has been delivered to the
authorities concerned in the manner prescribed for in the section and if filed before the
expiry of the said period, the suit has to be dismissed as not maintainable.
NOTICE UNDER SECTION 80 OF C.P.C.-

(1) Save as otherwise provided in sub-s. (2), no suit shall be instituted against the
Government (including the Government of the State of Jammu and Kashmir) or against
a public officer in respect of any act purporting to be done by such public officer in his
official capacity, until the expiration of two months next after notice in writing has been
delivered to, or left at the office of

(a) In the case of a suit against the Central Government except where it relates to a
railway, a Secretary to the Government;

(b) In the case of a suit against the Central Government where it relates to a railway.
General Manager of that Railway;

(bb) In the case of a suit against the Government of the State of Jammu and Kashmir,
the Chief Secretary to that Government or any other officer authorised by that
Government in this behalf;

(c) In the case of a suit against any other State Government a Secretary to that
Government or the Collector of the District: and, in the case of public officer, delivered
to him or left at his office, stating the cause of action, the name, description and place
of residence of the plaintiff and the relief which he claims; and the plaint shall contain a
statement that such notice has been so delivered or left.

(2) A suit to obtain an urgent or immediate relief against the Government (including the
Government of the State of Jammu and Kashmir) or any public officer in respect of any
act purporting to be done by such public officer in his official capacity, may be
instituted, with the leave of the court without serving any notice as required by sub-
section (1); but the court shall not grant relief in the suit, whether interim or otherwise,
except after giving to the Government or public officer, as the case may be, a
reasonable opportunity of showing cause in respect of the relief prayed for in the suit:
Provided that the court shall, if it is satisfied, after hearing the parties that no urgent or
immediate relief need be granted in the suit return the plaint for presentation to it after
complying with the requirements of sub-section (1).

Section 80 deals with two things—first with the service of the notice in writing and the
second with a rule of procedure as to what the plaint should contain. The object of the
section is manifestly to give the Government or the public officer sufficient notice of the
case which is proposed to be brought against it or him so that it or he may consider the
position and decide for itself or himself whether the claim of the plaintiff should be
accepted or resisted.

The object of notice is to afford the Government—Central or State—an opportunity to

reconsider the legal position, and to settle the claim without litigation, if so advised, or
to afford restitution without recourse to a court of law. The section is explicit and
mandatory and admits of no exceptions Notice under S. 80 need not be practically a
copy of the plaint. It should be such as to give substantial information to the
Government as to the basis of the claim and the relief which the plaintiff seeks.

It need not set out all the details or facts of the case which the plaintiff intends to prove,
nor is it incumbent upon the plaintiff to give in detail all the forms in which he would
seek relief. In order to enable the Government or the public officer to arrive at a
decision it is necessary that it or he should be informed of the nature of the suit
proposed to be filed against it or him and the facts on which the claim is founded and
the precise relief asked for.

Essential Requirements:
The three essential requirements of S. 80 are:

first, the addressee should be identified and must have received the communication;
secondly, there should be no vagueness or indefiniteness about the person giving the
notice, who must also be the person filing the suit and the notice must also give the
details which are specified in S. 80; and, thirdly, the two months’ time allowed must
expire before the suit is laid.
Once these requirements are fulfilled minor details like the misdescription of the person
to whom the communication is addressed should not make it an improper notice which
does not comply with the requirements of S. 80, C.P.C.

Beohar Rajendra Singh v. State of Madhya Pradesh:

The object of the notice under S. 80, C.P.C. is to give to the Government or the public
servant concerned an opportunity to reconsider its or his legal position and if that
course is justified to make amends or settle the claim out of court. The section is no
doubt imperative; failure to serve notice complying with the requirements of the statute
will entail dismissal of the suit.

But the notice must be reasonably construed. Any unimportant error or defect cannot
be permitted to be treated as an excuse for defeating a just claim. In considering
whether the provisions of the statute are complied with the court must take into
consideration the following matters in each case:

(1) Whether the name, description and residence of the plaintiff are given so as to
enable the authorities to identify the person serving the notice;

(2) Whether the cause of action and the relief which the plaintiff claims are set out with
sufficient particularity;

(3) Whether a notice in writing has been delivered to or left at the office of the
appropriate authority mentioned in the section; and

(4) Whether the suit is instituted after the expiration of two months next after notice has
been served, and the plaint contains a statement that such a notice has been delivered
or left.

The effect of S. 80 is clearly to impose a bar against the institution of a suit against the
Government or a public officer in respect of any act purported to be done by him in his
official capacity until the expiration of two months next after the notice in writing has
been delivered to or left at the office of the Secretary to Government or Collector of
concerned district and in the case of a public officer delivered to him or left at his office,
stating the particulars enumerated in the last part of sub-section (1) of the section.

When we examine the scheme of the section it becomes obvious that the section has
been enacted as a measure of public policy with the object of ensuring that before a
suit is instituted against the Government or a public officer, the Government or the
officer concerned is afforded an opportunity to scrutinise the claim in respect of which
the suit is proposed to be filed and if it be found to be a just claim, to take immediate
action and thereby avoid unnecessary litigation and save public time and money by
settling the claim without driving the person who has issued the notice to institute the
suit involving considerable expenditure and delay.

There is clearly a public purpose underlying the mandatory provision contained in the
section insisting on the issuance of a notice setting out the particulars of the proposed
suit and giving two months’ time to Government or a public officer before a suit can be
instituted against them. The object of the section is the advancement of justice and the
securing of public good by avoidance of unnecessary litigation.

Section 80, according to its plain meaning, requires that there should be identity of the
person who issues the notice with the person who brings the suit. Where an individual
carries on business in some name and style, the notice has to be given by the
individual in his own name, for the suit can only be filed in the name of the individual.
The only requirement under S. 80, C.P.C. is to serve a notice on the State Government
or public functionary. There is no requirement under S. 80, C.P.C. that a notice issued
to a party should be filed along with the plaint.

The notice to a public officer is necessary only if the suit is in respect of an act done by
the officer purporting to be done in his official capacity, but if the suit relates to an act
done by him in his individual capacity no notice is required.

A public servant can only be said to act or purport to act in the discharge of his official
duty, if his act is such as to lie within the scope of his official duty. If the act was one
such as is ordinarily done by the officer in the course of his official duties, and he
considers himself to be acting as a public officer and desired other persons to consider
that he was so acting, the act clearly purports to be done in his official capacity. Two
conditions are clearly necessary for the section to apply: (1) he must be a public officer;
and (2) he must purport to act in his official capacity.

In consonance with the opinion of the Joint Committee of both Houses of Parliament,
some relaxations to the provisions of S. 80 have been made by the Amendment Act,
1976. It has been enacted that a suit may be instituted with the leave of the court, for
obtaining an urgent or immediate relief against the Government or of any public officer
in respect of any act purporting to have been done by such public officer in his official
capacity without serving any notice under S. 80, C.P.C., but the court shall not grant
relief in the suit, whether interim or otherwise, except after giving to the government or
the public officer, as the case may be, a reasonable opportunity of showing cause in
respect of the relief prayed for in the suit.

Further sub-s. (3) has been added to S. 80 with a view to seeing that the just claims of
persons are not defeated on technical grounds, and it has been enacted that the suit
against the Government or a public officer should not be dismissed merely by reason of
any technical defect or error in the notice or any irregularity in the service of the notice if
the name, description and residence of the plaintiff had been so given in the notice as
to enable the appropriate authority or the public officer to identify the person serving the
notice and the notice has been delivered or left at the office of the appropriate authority,
and the cause of action and the relief claimed have been substantially indicated in the
notice.

Contents of notice:
A notice under S. 80, C.P.C. imputing negligence on the part of the railway
administration or its servants must state, in sufficient details, particulars of negligence,
carelessness, or misconduct, to enable the administration to decide whether the
plaintiff’s claim be accepted or resisted.

The furnishing of such particulars was all the more necessary when under the law the
burden lay upon the plaintiff to prove that the loss was occasioned by negligence or
misconduct on the part of the railway administration or its servants. A bare allegation of
negligence or misconduct would not be sufficient.

Mandatory provisions:
Though S. 80 of the Code is mandatory, yet the court should not be hypercritical in
examining the language used but should interpret the same in a free and liberal spirit.
Where it is not denied that notice in accordance with S. 80 (b) was given by registered
post and the notice was duly served; it was mentioned in the plaint that the notice had
been given, and the acknowledgement due receipt duly signed on behalf of the
defendant was filed in court, then the mere fact that the plaintiff mentioned that he had
given notice instead of mentioning that the notice had been delivered cannot justify the
dismissal of the plaint.

A notice has to be interpreted not pedantically but in the light of common-sense without
one being hypercritical about the language; but the question to be considered is
whether in the notice there is substantial information conveyed on the basis of which
the recipient of the notice could consider the claim of the would be plaintiff and avert
the suit.

In the ultimate analysis the question as to whether a notice under S. 80 of the Code is
valid or not is a question of judicial construction. The Privy Council and the Supreme
Court have applied the rule of strict compliance in dealing with the question of identity
of the person who issues the notice with the person who brings the suit.

Where therefore a notice under S. 80 given by the plaintiff’s father reached the
concerned department of the Dominion of India and it was replied by not accepting the
claim of the father of the plaintiff, but before instituting the suit the plaintiff’s father died,
the suit by the legal heirs of the deceased without giving fresh notice under S. 80,
C.P.C. is maintainable and the notice by the deceased will ensure for the benefit of his
legal heirs.

In any suit by or against the Government, the plaint or written statement shall be signed
by such person as the Government may, by general or special order, appoint in this
behalf, and shall be verified by any person whom the Government may so appoint and
who is acquainted with the facts of the case (Order XXVII, Rule 1).

In suits by or against the Government, instead of inserting in the plaint the name and
description and place of residence of the plaintiff or defendant, it shall be sufficient to
insert the appropriate name as provided in S. 79. (Order XXVII, Rule 3).The
Government pleader in any court shall be the agent of the Government for the purpose
of receiving processes against the Government issued by such court. (Order XXVII,
Rule 4).The court, in fixing the day for the Government to answer to the plaint, shall
allow a reasonable time for the necessary communication with the Government through
the proper channel, and for the issue of instruction to the Government pleader to
appear and answer on behalf of the Government, and may extend the time at its
discretion but the time so extended shall not exceed two months in the aggregate.
(Order XXVII, Rule 5).

Where a suit is instituted against a public officer for damages or other relief in respect
of any act alleged to have been done by him in his official capacity, the Government
shall be joined as a party to the suit. (Order XXVII, Rule 5-A).

Duty of court in suits against the Government or a public officer to assist in

arriving at a settlement:
In every suit or proceeding to which the Government, or a public officer acting in his
official capacity, is a party, it shall be the duty of the court to make, in the first instance,
every endeavour, where it is possible to do so consistently with the nature and
circumstances of the case, to assist the parties in arriving at a settlement, in respect of
the subject-matter of the suit.

If in any such suit or proceeding at any stage, it appears to the court that there is a
reasonable possibility of a settlement between the parties, the court may adjourn the
proceeding for such period as it thinks fit, to enable attempts to be made to effect such
a settlement. (Order XXVII, Rule 5-B).

Introduction
 Under the Code of Civil Procedure, 1908 (CPC), the Courts have been entrusted with the
power to issue Commissions.
 The Commissions are issued for the purpose of fulfilling certain functions which are crucial in
the effective delivery of justice.
 Section 75 and Order XXVI of CPC deals with the provisions relating to commissions.

Commissions
 Commission is an instruction or role given by the Court to a person to act on behalf of the
Court.
 The court authorizes the person so appointed to do everything that the Court requires to do for
the accomplishment of justice.
 A person so appointed is known as a Court commissioner.
 Courts power to issue commission is discretionary, it can be exhausted by the court either
on application by a party to the suit or on its own motion.

Appointment as a Commissioner
 Generally, there is a panel of commissioners which is formed by a High Court in which
advocates competent to carry out the commission issued by the Court, are selected.
 The person appointed as commissioner should be independent, impartial, disinterested in
the suit and the parties involved in it. Such a person should have the requisite skills to carry
out the commission.

Power of Court to Issue Commissions

 Section 75 of CPC deals with the power to court to issue commissions. It states that-
Subject to such conditions and limitations as may be prescribed; the Court may issue
a commission—
(a) to examine any person;
(b) to make a local investigation;
(c) to examine or adjust accounts; or
(d) to make a partition;
(e) to hold a scientific, technical, or expert investigation;
(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;
(g) to perform any ministerial act.

Commissions Order XXVI

The Court has the power to issue a commission to carry out the following functions.
 Commissions to Examine Witnesses
o Rule 1 to 8 of Order XXVI deals with the Examination of Witnesses.
o The general rule of evidence is to bring the evidence before the Court and must be recorded
in open Court.
o But in extraordinary circumstances, the appearance of witness is dispensed, and the witness is
allowed to depose evidence without appearing in Court.
o The court may issue commission for examination of witness in the following circumstances:
 If a person is to be examined as a witness resides within the local limit of the court’s
jurisdiction and, is exempted under the code from attending the court, or is from sickness or
infirmity unable to attend the court, or
 If he resides beyond the local limits of the jurisdiction of the court, or
 If he is about to leave the jurisdiction of the court, or
 If he is government servant and cannot, in the opinion of the court, attend without detriment to
the public, or if he is residing out of India and the court is satisfied that his evidence is
necessary.
 Commission for Local Investigation
o As per Rule 9 of Order XXVI, the court can issue commission for local investigation.
o The court can issue commission, if it considers proper at any stage of the suit, for the
following purposes:
 for explanation in any disputed issue.
 for determination of the market value of any property.
 for determination of mesne profits, damages, annual net profits etc.
 To issue such commission depends upon the discretion of the court.
 Commission for Scientific Investigation
o Rule 10 A of Order XXVI deals with the issue of commission for scientific investigation.
o According to this rule, when the court thinks that any scientific issue is involved in the case
before it and proper solution of that issue is not forthcoming, then the court, in the interest of
justice, by investigating the case, can issue commission for submission of its report.
 Commission to Perform Ministerial Act
o Rule 10B of Order XXVI deals with the issue of commission for performance of ministerial
acts.
o According to this rule, when the court thinks that in the suit before it, any question of
performance of ministerial act is involved, then it can issue commission, in the interest of
justice for performance of ministerial act.
 Commission to Sell Movable Property
o Rule 10C of Order XXVI deals with the issue of commissions to sell movable property.
o Rule 10C states that where, in any suit, it becomes necessary to sell any movable property
which is in the custody of the Court pending the determination of the suit and which cannot
be conveniently preserved, the Court may, if, for reasons to be recorded, it is of opinion that it is
necessary or expedient in the interests of justice so to do, issue a commission to such person
as it thinks fit, directing him to conduct such sale and report thereon to the Court.
 Commissions to Examine Accounts
o Rule 11 and 12 of Order XXVI deal with the issue of commissions for examining accounts.
o Rule 11 states that in any suit in which an examination or adjustment of the accounts is
necessary, the Court may issue a commission to such person as it thinks fit directing him to
make such examination or adjustment.
o Rule 12 states that the Court to give necessary instructions to the Commissioner and the
proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where
the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall
think fit.
 Commissions to Make Partitions
o Rule 13 and 14 of Order XXVI deals with the issue of commissions to make partitions.
o Rule 13 states that where a preliminary decree for partition has been passed, the Court
may, in any case not provided for by section 54, issue a commission to such person as it thinks
fit to make the partition or separation according to the rights as declared in such decree.
o Rule 14 deals with the procedure of Commissioner.
 Commissions Issued of the Instance of Foreign Tribunals
o Rule 19 to 22 of Order XXVI contains provisions relating to commissions issued at the
instance of foreign tribunals.
o Rule 19 deals with the cases in which a High Court may issue commission to examine
witnesses. It states that—
(1) If a High Court is satisfied. —
(a) that a foreign court situated in a foreign country wishes to obtain the evidence of a
witness in any proceeding before it,
(b) that the proceeding is of a civil nature, and
(c) that the witness is residing within the limits of the High Court’s appellate
jurisdiction, it may, subject to the provisions of rule 20, issue a commission for the
examination of such witness.
(2) Evidence may be given of the matters specified in clause (a), (b) and (c) of sub-
rule (1) —
(a) by a certificate signed by the consular officer of the foreign country of the
highest rank in India and transmitted to the High Court through the Central
Government, or
(b) by a letter of request issued by the foreign Court and transmitted to
the High Court through the Central Government, or
(c) by a letter of request issued by the foreign court and produced before the High
Court by a party to the proceeding.

o Rule 20 deals with the application for the issue of commissions.
o Rule 21 states that the commission under rule 19 may be issued to any Court within the
local limits of whose jurisdiction the witness resides.
o Rule 22 deals with the issue, execution and return of commissions, land transmission of
evidence to foreign Court.

Powers of the Commissioner

 As per Rule 16 of Order XXVI, any commissioner appointed under this Order may, unless
otherwise directed by the order of appointment, —
(a) examine the parties themselves and any witness whom they or any of them may
produce, and any other person whom the Commissioner thinks proper to call upon to
give evidence in the matter referred to him;
(b) call for and examine documents and other things relevant to the subject of
inquiry;
(c) at any reasonable time enter upon or into any land or building mentioned in the
order.

Expenses of Commissions to be paid into

Court
 Rule 15 of Order XXVI states that before issuing any commission under this Order, the Court
may order such sum (if any) as it thinks reasonable for the expenses of the commission to
be, within a time to be fixed, paid into Court by the party at whose instance or for whose
benefit the commission is issued.
 Evidentiary Value of the Report Submitted
by the Commissioner
 According to Rule 10(2) of Order XXVI of CPC, the report and the evidence submitted by
commissioners forms a part of the record.
o But if the evidence is submitted without the report of the commissioner, such evidence does
not form part of the record.
 The report forms an important part of the case and can only be challenged on sufficient
grounds.
 The Court has the final say on how much reliance should be placed on the report submitted
by the Court.

Suit by an Indigent Person

Who is an Indigent Person?

The term ‘indigent person’ is defined under Order XXXIII, Rule 1 of the CPC. An indigent
person is someone who:

Does not possess sufficient means to pay the court fees required for filing a suit.

Does not own property worth ₹1,000, excluding essential items such as clothing, household
utensils, and other basic necessities.

Thus, indigence is determined by a person’s inability to afford the court fees and their lack of
substantial property that can be liquidated to pay the fees.

Exclusion of Property

While assessing whether a person qualifies as indigent, certain properties are excluded from
consideration. These include: Clothing and household utensils: Necessary for the maintenance of
life.

Immovable property: If it is an essential source of livelihood and cannot be easily liquidated.

Tools of trade: Tools essential for the person’s trade or profession.

If a person’s assets exceed the prescribed threshold or if they are found to have disposed of
property fraudulently to qualify as indigent, their application will be rejected.

Procedure for Filing Suits by Indigent Persons Under CPC

To file a suit as an indigent person, an individual must follow a prescribed legal procedure under
Order XXXIII. The key steps involved are as follows:

1. Filing of Application (Order XXXIII, Rule 2)

The first step for an indigent person is to file an application to the court seeking permission to
file a suit without paying court fees. The application must contain the following details:
A description of the applicant’s financial status and lack of sufficient means to pay court fees.

A schedule of the applicant’s assets, including movable and immovable property.

The particulars of the plaint, just like a regular suit.

2. Inquiry into the Application (Order XXXIII, Rule 1A)

Once the application is filed, the court undertakes an inquiry to verify the applicant’s claim of
indigency. This inquiry is primarily conducted by the court’s chief ministerial officer, although
the court itself may also conduct the investigation if necessary. The inquiry includes:

Examination of the applicant’s financial status.

Evaluation of the applicant’s property and assets.

Inquiry into whether the suit is barred by law or if the applicant has any ulterior motives.

If the court finds that the applicant is truly indigent, the application is admitted, and the suit
proceeds in the normal course.

3. Notice to the Opposing Party (Order XXXIII, Rule 6)

Before admitting the application, the court issues a notice to the opposite party (defendant) and
provides them with an opportunity to contest the indigency claim. The defendant may argue that
the applicant is not indigent, in which case the court examines evidence from both sides.

4. Adjudication of the Application (Order XXXIII, Rule 7)

After conducting the inquiry and hearing both parties, the court decides whether the applicant
qualifies as an indigent person. If the court grants permission, the application is treated as a
plaint, and the case proceeds without the plaintiff being required to pay court fees.

5. Rejection of Application (Order XXXIII, Rule 5)

The court may reject the application for permission to sue as an indigent person under the
following circumstances:

The application is not presented in the prescribed manner.

The applicant is found not to be indigent.

The applicant has disposed of property fraudulently to qualify as indigent.

The allegations in the plaint do not disclose a cause of action.

The suit is barred by law.

The applicant has entered into any agreement concerning the subject matter of the suit with
another person who has an interest in the case.
If the application is rejected, the applicant is free to file the suit in the ordinary manner by
paying the requisite court fees.

Rights and Liabilities of an Indigent Person

Once an individual is allowed to file a suit as an indigent person under CPC, certain rights and
liabilities are attached to their status.

Rights of an Indigent Person

Exemption from Court Fees: The primary right of an indigent person is that they are exempted
from paying court fees for the duration of the suit. This includes fees for filing the plaint,
process fees, and other litigation-related expenses.

Representation by a Lawyer: If an indigent person is not represented by a lawyer, the court may
assign a legal representative to assist them in pursuing their case. This is in line with the
principle of free legal aid, as enshrined in Article 39A of the Constitution.

Right to Appeal: An indigent person may file an appeal against a judgement or order in the same
manner as they filed the original suit—without paying court fees. This is provided under Order
XLIV of the CPC.

Liabilities of an Indigent Person

Payment of Court Fees if They Succeed: If an indigent person succeeds in the suit, the court
calculates the amount of court fees that would have been payable had they not been indigent.
This amount is then recovered from the opposing party or the subject matter of the suit. The
state has the first charge on the property involved in the litigation.

Withdrawal of Indigent Status: The court may revoke the status of indigent person if it is found
that the individual’s financial situation has improved, allowing them to pay the court fees.
Additionally, if the person engages in vexatious or improper conduct during the proceedings, the
court may withdraw their indigent status.

Liability for Costs if They Fail: If an indigent person loses the suit, they may be liable to pay
court fees and costs, just like any other litigant. In such cases, the court can order the person to
pay the fees retrospectively.

Appeals by Indigent Persons

Under Order XLIV of the CPC, an indigent person may also file an appeal without paying the
requisite court fees. The procedure for filing an appeal as an indigent person is similar to the
procedure for filing a suit. The court conducts an inquiry into the applicant’s financial status,
and if satisfied, grants permission to file the appeal without fees.
However, if the court rejects the application for appeal, the indigent person is required to pay the
court fees within a specified time. If the fees are paid within this time, the appeal proceeds as
though the fees had been paid from the beginning.

Case Laws on Suits by Indigent Persons

Several landmark judgements have clarified the rights, liabilities, and procedures associated
with suits by indigent persons:

1. M.L. Sethi v. R.P. Kapur (1972)

In this case, the Supreme Court held that the provisions of Order I, Rule 10, relating to the
addition of parties, and Order IX, dealing with the consequences of non-appearance, apply to
proceedings under Order XXXIII. This ruling clarified that suits filed by indigent persons follow
the same procedural rules as regular suits.

2. Union Bank of India v. Khader International Construction (2001)

This case affirmed that Order XXXIII is an enabling provision that allows indigent persons to
file suits without paying court fees at the initial stage. However, if the suit is dismissed, the state
is entitled to recover the court fees from the plaintiff. The court fees are treated as the first
charge on the subject matter of the suit.

3. Smt. Lakshmi v. Vijaya Bank (2010)

In this case, the court held that the right to sue as an indigent person is a personal right. If the
indigent person dies, the right to sue cannot be inherited by their legal representatives. However,
the court may grant permission to the legal representatives to continue the suit in an ordinary
manner by paying court fees.

Challenges in the Implementation of Order XXXIII

While Order XXXIII provides a robust framework for indigent persons to access justice, several
challenges remain:

Delay in Processing Applications: The inquiry into an applicant’s financial status can be time-
consuming, leading to delays in the commencement of the suit. This can be particularly
problematic for indigent persons who may already be facing financial and social hardships.

Vexatious Litigation: Some individuals may attempt to misuse the provisions of Order XXXIII
by fraudulently claiming indigence to avoid paying court fees. Courts must remain vigilant in
scrutinising such claims to prevent abuse of the legal system.

Awareness and Accessibility: Many indigent persons may not be aware of their right to file suits
under Order XXXIII. Legal aid organisations and the judiciary must work together to raise
awareness about these provisions and ensure that they are accessible to all sections of society.

Conclusion
Order XXXIII of the CPC is a testament to the Indian legal system’s commitment to ensuring
equal access to justice. By providing indigent persons with the means to file suits without paying
court fees, the law upholds the constitutional principles of equality and free legal aid. However,
challenges such as delays, fraudulent claims, and lack of awareness must be addressed to ensure
that the provisions are implemented effectively.

The right to justice should not be a privilege reserved for the wealthy. Order XXXIII stands as a
crucial tool in ensuring that financial hardship does not deprive individuals of their ability to
seek redress for their grievances. As the legal system continues to evolve, further reforms and
awareness initiatives are needed to ensure that access to justice is a reality for all, regardless of
economic status.

Definition of Minor and Persons of Unsound Mind

According to Section 3 of the Indian Majority Act, 1875, a minor is a person who has not
attained the age of 18 years. However, if a guardian has been appointed by the Court for the
minor’s person or property or if the minor’s property is under the supervision of a Court of
Wards, the age of majority is extended to 21 years. A person of unsound mind refers to an
individual who cannot protect their interests due to mental infirmity and their condition may be
adjudicated by the Court either before or during the suit.

Suits by or Against Minors and Persons of Unsound Mind

Purpose of Order XXXII: Suits by or Against Minors and Persons of Unsound Mind

Order XXXII of the CPC is specifically designed to protect the interests of minors and persons
of unsound mind by ensuring they are properly represented in legal proceedings. Due to their
lack of capacity and judgement, these individuals cannot legally bind themselves except in cases
beneficial to them. Therefore, the appointment of a guardian or next friend is crucial to
safeguard their legal rights and interests.

Provisions for Suits by or Against Minors and Persons of Unsound Mind under Order XXXII

Rule 1: Minor to Sue by Next Friend

Every suit by a minor must be instituted in the minor’s name by a person called the next friend.
The next friend represents the minor in all legal proceedings, ensuring that the minor’s interests
are adequately protected.

Rule 2: Where Suit is Instituted without Next Friend

If a suit is filed on behalf of a minor without a next friend, the defendant can apply to have the
plaint taken off the file. The person who presented the plaint may be ordered to pay the costs
incurred by the defendant. Notice of such an application must be given to the person who filed
the suit and the Court, after hearing their objections, may make an appropriate order.

Rule 2A: Security to be Furnished by Next Friend when Ordered

The Court can require the next friend of a minor to provide security for the payment of all costs
incurred or likely to be incurred by the defendant. This provision, introduced by the Amendment
Act of 1976, aims to prevent frivolous litigation by ensuring that the next friend has a vested
interest in the suit and is financially accountable.

Rule 3: Guardian for the Suit to be Appointed by Court for Minor Defendants

When a minor is a defendant, the Court must appoint a guardian for the suit, known as a
guardian ad litem. The guardian ad litem is responsible for defending the minor throughout the
legal proceedings unless terminated by retirement, removal or death. The application for
appointing a guardian must be supported by an affidavit verifying that the proposed guardian has
no adverse interest in the matters of the suit and is fit for the role.

Rule 3A: Decree Against Minor not to be Set Aside Unless Prejudice has been Caused to His
Interest

A decree against a minor will not be set aside merely because the next friend or guardian had an
adverse interest. However, if this adverse interest prejudices the minor, it is a valid ground for
setting aside the decree. This rule ensures that the minor’s interests are protected from any
potential conflicts of interest.

Rule 4: Who May Act as Next Friend or be Appointed Guardian for the Suit

Any adult of sound mind, who does not have an adverse interest, may act as the next friend
or guardian for the suit. If a minor already has a guardian appointed by a competent authority,
no other person can act as the next friend or guardian unless the Court deems it necessary for the
minor’s welfare. This rule ensures that the minor is represented by someone with their best
interests at heart.

Rule 5: Representation of Minor by Next Friend or Guardian for the Suit

All applications and orders concerning a minor in a suit must be made through the minor’s next
friend or guardian. Any orders made without such representation can be set aside if it is shown
that the pleader knew or should have known about the minor’s status. This provision safeguards
the minor’s legal rights and ensures proper representation in Court.

Rule 6: Receipt by Next Friend or Guardian for the Suit of Property under Decree for Minor

A next friend or guardian cannot receive any property on behalf of a minor without the Court’s
permission. The Court may require security to ensure the proper management of the property
and protect it from waste. This rule prevents the misuse of the minor’s property and ensures its
proper application for the minor’s benefit.

Rule 7: Agreement or Compromise by Next Friend or Guardian for the Suit

A next friend or guardian cannot enter into any agreement or compromise on behalf of the minor
without the Court’s permission. Any such agreement without the Court’s leave is voidable. This
rule protects the minor from potential exploitation and ensures that any compromise is in their
best interest.

Rule 8: Retirement of Next Friend

A next friend cannot retire without first finding a suitable replacement and providing security for
costs already incurred. This ensures continuity in the minor’s representation and prevents any
disruption in the legal proceedings.

Rule 9: Removal of Next Friend

The Court can remove a next friend if their interest is adverse to the minor, they are connected
to the defendant, fail to perform their duties or for any other sufficient cause. This provision
ensures that the next friend acts in the minor’s best interest and can be replaced if they fail to do
so.

Rule 10: Stay of Proceedings on Removal, etc., of Next Friend

If a next friend retires, is removed or dies, the proceedings are stayed until a new next friend is
appointed. This prevents any legal actions from proceeding without proper representation of the
minor.

Rule 11: Retirement, Removal or Death of Guardian for the Suit

The Court can permit the retirement, removal or replacement of a guardian during the suit. If a
guardian retires, dies or is removed, a new guardian must be appointed to continue the
proceedings. This ensures that the minor is continuously represented throughout the legal
process.

Rule 12: Course to be Followed by Minor Plaintiff or Applicant on Attaining Majority

When a minor plaintiff attains majority, they must decide whether to continue with the suit,
dismiss it or apply to proceed in their own name. The title of the suit is then corrected to reflect
their new status. This rule provides clarity and ensures that the legal proceedings are
appropriately updated.

Rule 13: Where Minor Co-plaintiff Attaining Majority Desires to Repudiate Suit

A minor co-plaintiff who attains majority can apply to have their name struck out as a co-
plaintiff if they wish to repudiate the suit. The Court will determine if they are a necessary party
and make an appropriate order regarding their dismissal from the suit. This provision allows the
newly major individual to make an informed decision about their involvement in the legal
proceedings.

Rule 14: Unreasonable or Improper Suit

A minor who attains majority can apply to have a suit dismissed if it was unreasonable or
improper. The Court must be satisfied of the suit’s unreasonableness or impropriety to grant the
application. This rule ensures that the interests of the now-major individual are protected from
any prior decisions made without their informed consent.

Rule 15: Application to Persons of Unsound Mind

Rules 1 to 14 (except rule 2A) apply to persons adjudged to be of unsound mind or found
incapable of protecting their interests due to mental infirmity. This rule extends the protections
provided to minors to persons of unsound mind, ensuring their interests are safeguarded in legal
proceedings.

Case Laws on Suits by or Against Minors and Persons of Unsound Mind

Several landmark cases illustrate the application of Order XXXII and the principles governing
suits involving minors and persons of unsound mind.

Ramchandra Arya v. Mansingh

In Ramchandra Arya v. Mansingh (AIR 1968 SC 954), Ramdas filed a civil suit against Ramlal,
a person of unsound mind, to recover a sum of money. The suit, initially heard by the Court of
Judge, Small Causes, was transferred to the Court of Munisif, which passed an ex parte decree
against Ramlal, declaring him sufficiently served. Ramlal’s house was sold in execution of this
decree and a sale certificate was issued to Prabhudayal. Despite the sale, Ramlal continued
living in the house until his death, after which the property escheated to the Maharaja of Jaipur
due to the absence of heirs.

Prabhudayal then filed a suit for possession of the house. The defence argued that since Ramlal
was a lunatic and no guardian ad litem was appointed in the initial suit, the decree was null and
void, making the sale void as well. Both the Trial Court and the first Appellate Court dismissed
Prabhudayal’s suit. The High Court upheld these decisions.

The Supreme Court ruled that the decree was passed in violation of Order XXXII, Rule 15 of the
Code of Civil Procedure, 1908. Ramlal was insane at the time the suit was instituted and during
the execution of the decree. The Court reiterated that any decree against a minor or person of
unsound mind without the appointment of a guardian is null and void, thus invalidating the sale
of Ramlal’s house.

Kasturi Bai v. Anguri Chaudhary

In Kasturi Bai v. Anguri Chaudhary (2003) 1 SCALE 735, the respondent filed a suit for
partition of immovable properties against the appellant, an 87-year-old woman claiming she was
unable to understand and give instructions due to her age. The respondent requested the Court to
summon the appellant to assess her mental state and, if necessary, appoint a guardian for the
suit. The Trial Court dismissed this application.

The respondent filed a revision application under Section 115 of the Code of Civil Procedure,
1908, which the High Court allowed, stating that the Trial Court had acted irregularly by
rejecting the application without proper inquiry. The appellants sought to recall this order,
arguing that they had not been served notices. The Division Bench of the High Court treated the
recall application as an appeal and dismissed it.

The Supreme Court held that the Trial Court had failed to conduct an inquiry to determine if the
respondent was capable of protecting her interests due to mental infirmity. The single Judge
committed a jurisdictional error and the Division Bench erred in treating the recall application as
an appeal. The Supreme Court set aside the impugned judgement and directed the Trial Court to
reconsider the matter afresh under Order XXXII, Rule 15 of the CPC, 1908.

Conclusion

Order XXXII of the Code of Civil Procedure, 1908, provides comprehensive guidelines to
ensure the protection of minors and persons of unsound mind in legal proceedings. By
mandating the appointment of a next friend or guardian, the law seeks to safeguard their
interests and prevent exploitation. The detailed provisions of Order XXXII address various
scenarios, from the initiation of suits to the handling of property and the resolution of conflicts
of interest.

UNIT 3

The term “execution” is not defined in the CPC. The term “execution” means implementing or
enforcing or giving effect to an order or a judgment passed by the court of justice. In simple
words, “execution” means the process of enforcing or giving effect to the decree or judgment of
the court, by compelling the judgment-debtor to carry out the mandate of the decree or order and
enable the decree-holder to recover the thing granted to him by judgment. The expression
‘execution’ means enforcement or implementation of the order or judgment passed by the Court.
A Decree means an operation or conclusiveness of a judgment and the execution of a Decree is
complete when the decree-holder gets satisfied as to its enforcement against the judgment-debtor
i.e. receiving of the awarded amount or property, as the case may be. It is the medium by which
a decree-holder compels the judgment-debtor to carry out the mandate of the Decree. To take the
benefit of a decree, execution proceedings – an Application under Order XXI of the Code of
Civil Procedure, 1908 (CPC) have to be filed before the appropriate court/authority within 12
years from the date of Decree.

The general rule as laid down under Section 38 of CPC is that ‘the Decree may be executed
either by the court which passed it or by the court to which it is sent for execution. The words
‘Court which passed the Decree’ includes courts which passed the Decree (court of the first
instance) and courts of the first instance in appellate Decree. The executing court cannot
question the validity of a Decree or entertain an objection as to the legality or otherwise of the
Decree. It must take the Decree as it stands and executes it according to its terms. The executing
court must abide by the directions contained in the Decree. Decree-holder can choose
its mode of execution of the Decree under Section 51 – 54 of the CPC.

A written application is to be filed in the court that originally passed the decree or the court to
which it has been transferred for execution. It shall contain all the essential information such as
suit number, name of parties, date of the decree, any appeal preferred or pending, amount due,
name of the person against whom execution is sought, and most importantly the mode in which
the assistance of the court is required. On filing the Application a lodging number is given for
raising of defects – Time limit three weeks from the filing of Application, defects are raised by
the registry.

Nature and Scope: Once a decree or judgment is passed by the court, it is the obligation of the
person against whom the judgment is passed (judgment-debtor), to give effect to the decree so as
to enable the decree-holder to enjoy the benefits of the judgment. Execution is the last stage of
litigation. When the decree-holder gets the thing granted to him by judgment, decree or order,
the execution is complete. Execution of a decree or an order or implementation or enforcement
of such decree or orders, these are important steps since they are concerned with realization of
the fruits of the decree or the orders as the case may be. Part II, Section 36 to 74 and Section
144, 146 of Code of Civil Procedure and Order 21 of Civil Procedure Code deals exclusively
with the execution.

Chapter XVI of Civil Rules of Practice consisting of Rules 205 to 285 deals with execution.
Limitation Act Articles 125 to 129 and 134 to 137 deal with the limitation in respect of the
execution proceedings. As per Rule 2 (e) of Civil Rules of Practice, “Execution petition” means
the petition to the court for the execution of any decree or order. As per Rule 2 (f) of Civil rules
of Practice “Execution application” means an application to the court made in a pending
Execution Petition and includes an application for transfer of a decree.

Execution proceedings under CPC (i) In a case “Raj Durbungah Vs. Maharaja Coomar Ramaput
Singh 1872 SCC Online PC 16” when it was observed by the Privy counsel that “the difficulties
of a litigant in India began when he has obtained a decree” (ii) In “Ghan Shyam Das Vs. Anant
Kumar Sinha” reported in AIR 1991 SC 2251 the Hon’ble Supreme Court observed that the
Code contains elaborate provisions which deal with all questions regarding executability of a
decree in all aspects. The Hon’ble Supreme Court further observed that numerous provisions of
Order 21 take care of various situations providing effective remedies to judgment-debtors,
decree-holders and claimant objectors. In the cases, where provisions are not capable of giving
relief inadequate measures and appropriate time, to an aggrieved party, then filing a regular suit
in the civil court is the solution. The Hon’ble Supreme Court further explained that the judicial
quality of the remedy under Civil Procedure Code is considered to be superior as compared to
other statues, therefore, the judges are expected to do better as they are entrusted with the
administration of justice.

Courts which can execute decrees:

Section 38 of the Code states that a decree can be executed either by the Court of the first
instance or by the Court to which it has been sent for execution.

Section 37 of the Code further establishes the scope of the expression “court which passed a
decree” with the object of enabling a decree-holder to recover the fruits of the decree. The courts
which fall within the said expression are as follows: 1. The court of first instance which actually
passed the decree ; 2. The court of first instance in the case of appellate decrees ; 3. Where the
court of first instance has ceased to exist, the court which would have jurisdiction to try the suit
at the time of execution ; and 4. Where the court of first instance has ceased to have jurisdiction
to execute the decree, the court which at the time of execution would have had jurisdiction to try
the suit.

Explanation to the section clarifies that the court of first instance shall have jurisdiction to
execute a decree even in the case of any area being transferred from the jurisdiction of the court
of first instance to the jurisdiction of any other court. In such cases, the court to the jurisdiction
of which such area has been transferred will also have jurisdiction to execute the decree,
provided that the said court had jurisdiction to try the said suit when the application for
execution was made.

Section 47 of CPC Questions to be determined by the court executing the decree

All the questions relating to execution, discharge and satisfaction of the decree are to be decided
by the Executing Court and even the decision of the complicated questions is also not
prohibited. Section 47 of the Civil Procedure Code provides for disposal of all the questions
arising between the parties to the suit, in which the decree was passed, or their representatives,
and relating to the execution, discharge or satisfaction of the decree, shall be determined by the
Court executing the decree and not by a separate suit. Even the Code bars the powers to decide
as the person raising objection is a Judgment Debtor or his representative and such question
would also relate to execution, discharge or satisfaction of a decree.

Who may apply? :

Rule 10 The following persons can file an application for execution:

 The decree-holder.

 The legal representatives of the decree-holder, if the decree-holder is dead.

 Any person claiming under the decree-holder.

 Transferee of the decree-holder, if the following conditions are satisfied namely,

 (a)The decree must have been transferred by an assignment in writing or by operation of

law;

 (b)The application for execution must have been made to the court which passed the
decree; and

 (c) Notice must have been given to the transferor and the judgmentdebtor or. The
provision of giving notice is mandatory and in absence of it, all the proceedings in the
execution would be void.

 The object of issuing notice is to determine once for all and in presence of the parties
concerned he validity or otherwise of the assignment or transfer.

 One or more of the joint decree-holders, provided the following conditions are satisfied
namely,

 (a)The decree should not have imposed any condition to the contrary;

 (b)The application must have been made for the execution of the whole decree; and
 (c) The application must have been made for the benefit of all the joint decree-holders;
or where any of them had died, for the benefit of the survivors and the legal
representatives of the deceased decree holder.

Who cannot apply?

A person who is neither a decree-holder nor has a right to execute a decree cannot apply
for execution of decree.

A third party or a stranger has not right to apply for execution even if he is a beneficiary
under a compromise.

A receiver appointed by a court may file execution application. But if he is dead, his son
cannot continue the proceedings.

Against whom execution may be taken out? Execution may be taken out against the
following persons:

 ◦ The Judgment-debtor, if he is alive (Rule 15).

◦ The legal representatives of the judgment-debtor, if the judgment debtor is dead. They
shall, however, be liable only to the extent of the property of the deceased which has
come to their hands (Section 50, 52, 53).

Different modes of execution General

(i) After the decree-holder files an application for execution of a decree, the
executing court can enforce execution. A decree may be enforced by,

delivery of any property specified in the decree, (movable or immovable)

by attachment and sale or by sale without attachment of any property, or

by arrest and detention in civil prison of the judgment-debtor. However, this

mode should not be exercised without giving a reasonable opportunity to the
judgment-debtor, in the form of a show-cause notice as to why he should not
be imprisoned or
by appointing a receiver, or

by effecting partition, or in such other manner as the nature of the relief may
require.

Procedure in execution

Section 51 to 54 of the Code deals about the procedure in execution.

Powers of the Court: Section 51 of the court defines the jurisdiction and
power of the court in executing a decree. The manner of executing a decree is
laid down by the Rules. The section enumerates in general terms the various
modes in which the court may order execution of a decree according to the
relief granted in favour of a decree-holder. It is for the decree-holder to
decide in which of the several modes he will execute his decree. An
application for execution of the decree can either be oral or written. The court
may execute decree as per the mode of implementation prayed by the decree-
holder or as the court deems fit.

Simultaneous execution Section 51 of the Code is very wide and permits

execution of decree by different modes. It gives option to the decree holder of
enforcing decree by several modes available under the Code. As a general
rule, therefore, a court passing a decree against the defendant should not
ordinarily place any limitation as to the mode in which it is to be executed.

In P.R.K. Sugar works vs. Land Reforms Commr., reported in 1969 SC 897
income tax dues were sought to be realised as arrears of land revenue by
selling immovable property of the company. It was contended by the
company that the Collector at the first instance ought to have sold movables.
Negativing the contention and upholding the action of the Collector, the
Hon’ble Supreme Court held that the Code of Civil Procedure imposes no
obligation to recover the dues by sale of movables or by arrest and detention
of the defaulter before immovable property may be attached.

Modes of Executing Decrees

 Delivery of property

a) Movable Property: Section 51(a) Rule 31

Where the decree is for any specific movable property, it may be executed ▪
by seizure and delivery of property; or ▪ by detention of the judgment- debtor;
or ▪ by attachment of his property; or ▪ by attachment and detention both. The
words specific movable do not include money and therefore, a decree for
money cannot be executed under Rule 31. Again, for the application of this
rule the property must be in the possession of the judgment-debtor. Where the
property is in the possession of a third party, the provisions of this rule do not
apply.

b) Immovable Property: Rules 35 and 36

Rules 35 and 36 provide the mode of executing decree for possession of

immovable property. Where the decree is for immovable property in the
possession of the judgment-debtor or in the possession of the person
bound by the decree, it can be executed by removing the judgment-debtor
or any person bound by the decree and by delivering the possession
thereof to the decree-holder. If the decree-holder satisfactorily establishes
identity of decretal property, the decree must be executed by the court by
putting the decree-holder in possession thereof. But if such property is in
the possession of a tenant or other person entitled to occupy the same and
not bound by the decree, the delivery of the property should be made by
affixing a copy of the warrant at some conspicuous place on the property
and proclaiming to the occupant by beat of drum or other customary mode
at some convenient place the substance of the decree regarding the
property. This is known as a symbolic or formal possession.

Attachment and Sale of Property: Section 51(b) Section 51(b) empowers the Court to order
execution of a decree by attachment and sale or by sale without attachment of any property. The
Court is competent to attach the property if it is situated within the local limits of the jurisdiction
of the court. It is immaterial that the place of the business of the judgment-debtor is outside the
jurisdiction of the court. (Raoof vs. Lakshmipathi, AIR 1969 Mad 268). Rule 54 provides for the
attachment of immovable property and the procedure for the proclamation of such attachment.
The object of Rule 54 is to inform the judgment-debtor about attachment so that he may not
transfer or create encumbrance over the property thereafter.

Property which can be attached: Section 60 of Civil Procedure Code provides that the
property which can be attached and which cannot be attached.

The following property is liable to attachment and sale in execution of a decree, namely, lands,
houses or other buildings, goods, money, bank-notes, cheques, bills of exchange, hundis,
promissory notes, Government securities, bonds or other securities for money, debts shares in a
corporation and, save as hereinafter mentioned, all other saleable property, movable or
immovable, belonging to the Judgment-debtor, or over which, or the profits of which, he has a
disposing power which he may exercise for his own benefit, whether the same be held in the
name of the Judgment-debtor or by another person in trust for him or on his behalf.

Property which cannot be attached:

a) the necessary wearing apparel, cooking vessels, beds and bedding of the judgment debtor, his
wife and children, and such personal ornaments as, in accordance with religious usage, cannot
be parted with by any woman;

b) tools of artisans, and, where the judgment debtor is an agriculturist, his implements of
husbandry and such cattle and seed grain as may in the opinion of the court, be necessary to
enable him to earn his livelihood as such, and such portion of agricultural produce or of any
class of agricultural produce as may have been declared to be free from liability under the
provisions of the next following section;

c) houses and other buildings (with the materials and the sites thereof and the land immediately
appurtenant thereto and necessary for their enjoyment) belonging to an agriculturist or a
labourer or a domestic servant and occupied by him;

d)books of account;

e) a mere right to sue for damages;

f) any right of personal service;

g) stipends and gratuities allowed to pensioners of the Government or of a local authority or of
any other employer, or payable out of any service family pension fund notified in the Official
Gazette by the Central Government or the State Government in this behalf, and political
pension;

h) the wages of labourers and domestic servants, whether payable in money or in kind;

i) salary to the extent of the first one thousand rupees and two-thirds of the remainder in
execution of any decree other than a decree for maintenance: Provided that where any part of
such portion of the salary as is liable to attachment has been under attachment, whether
continuously or intermittently, for a total period of twenty four months, such portion shall be
exempt from attachment until the expiry of a further period of twelve months, and, where such
attachment has been made in execution of one and the same decree, shall, after the attachment
has continued for a total period of twenty four months, be finally exempt from attachment in
execution of that decree; one-third of the salary in execution of any decree for maintenance

j) the pay and allowances of persons to whom the Air Force Act, 1950, or the Army Act, 1950,
or the Navy Act, 1957, applies;

k) all compulsory deposits and other sums in or derived from any fund to which the Provident
Funds Act, 1925 (19 of 1925), for the time being applies, in so far as they are declared by the
said Act not be liable to attachment;

(i) all deposits and other sums in or derived from any fund to which the Public Provident Fund
Act, 1968 (23 of 1968), for the time being applies, in so far as they are declared by the said Act
as not to be liable to attachment;

(ii) all moneys payable under a policy of insurance on the life of the judgment debtor;

(ii) the interest of a lessee of a residential building to which the provisions of law
for the time being in force relating to control of rents and accommodation
apply;

l) any allowance forming part of the emoluments of any servant of the Government or of any
servant of a railway company or local authority which the appropriate Government may, by
notification in the Official Gazette, declare to be exempt from attachment, and any subsistence
grant or allowance made to any such servant while under suspension;

m) an expectancy of succession by survivorship or other merely contingent or possible right or

interest;

n) a right to future maintenance;

o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in
execution of a decree; and

p) where the judgment debtor is a person liable for the payment of land revenue, any movable
property which, under any law for the time being applicable to him, is exempt from sale for the
recovery of an arrear of such revenue.

Arrest and Detention: Section 51(c)

One of modes of executing decree is arrest and detention in civil prison of the judgment-debtor.
Section 51(c) lays down that where the decree is for payment of money, execution by detention
in civil prison should not be ordered unless after giving the judgment-debtor an opportunity of
showing cause why he should not be so detained, the court for the reasons to be recorded in
writing it satisfied

i. that the judgment-debtor with the object of obstructing or delaying the execution of the decree
a) is likely to abscond or leave the local limits of the jurisdiction of the court ; or

b) has, after the institution of the suit in which the decree was passed dishonestly transferred,
concealed or removed any part of his property, or committed any other act of bad faith in
relation to his property ; or

ii. that the judgment-debtor has, or had since the date of the decree, the means to pay the
amount of the decree or some substantial part thereof and refuses or neglects or has refused or
neglected to pay the same ; or

iii. that the decree is for a sum which the judgment-debtor was bound in a fiduciary capacity to
account.
iv. These provisions are mandatory in nature and must be strictly complied with. They are not
punitive in character. The object of detention of a judgment-debtor in civil prison is twofold.
One the one hand, it enables the decree-holder to realise the fruits of the decree passed in his
favour; while on the other hand, it protects the judgment-debtor who is not in a position to pay
the dues for reasons beyond his control or is unable to pay.

v. In an application for arrest and detention of t he Judgment-debtor in prison, the decree-holder

must state or must file an affidavit stating the grounds on which arrest is sought for. In the case
of Jolly Gerorge Varghes Vs. Bank of Cochin (1980) 2 SCC 360: AIR 1980 Sc 470: (1980) 2
SCR 913, the Hon’ble Supreme court observes that “The simple default to discharge is not
enough. There must be some element of bad faith beyond mere indifference to pay, some
deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or
a substantial part of it. The provision emphasises the need to establish not mere omission to pay
but an attitude of refusal on demand verging on dishonest disowning of the obligation under the
decree. Here consideration of the debtor’s other pressing needs and straitened circumstances will
play prominently. We would have, by this construction, sauced law with justice, harmonised
Section 51 with the covenant and the Constitution.”

vi. In an application for arrest and detention of the Judgment-debtor in prison, the decree-holder
must state or must file an affidavit stating the grounds on which arrest is sought for.

Appointment of Receiver: Section 51(d)

One of the modes of execution of a decree is the appointment of a receiver. Execution by

appointment of a receiver is known as equitable execution and is entirely at the discretion of the
court. It cannot be claimed as of right.

The appointment of a receiver in execution proceedings is considered to be an exceptional

remedy and a very strong case must be made out in support of it.

The decree-holder before restoring to this mode must show that there is no effective remedy for
obtaining relief by the usual statutory modes of execution.

It has also to be satisfied that the decree is likely to be realised within a reasonable time from the
attached properties so that the judgment-debtor may not be burdened with property while he is
deprived of the enjoyment of it. Again, this mode of execution cannot be resorted to in order to
circumvent the statutory provisions.

UNIT 4
APPEALS
The expression appeal has not been defined in the Code of Civil Procedure 1908. It is an
application or petition to appeal higher Court for are consideration of the decision of appeal
lower court. Appeal is a statutory and substantive right not the procedural. Statutory right
means must be conferred by statute unless it provides there won’t be any right to appeal.
Appeal is a judicial evaluation of the decision of an inferior court by a higher court. Appeal is
not an institution of a new suit, it is a continuation of the suit which is already established it is
just to file the objection against the decision of such suit which has pronounced by the
inferior court. No one can proceed for the appeal until or unless it is granted under the law.
The right to appeal is not an inherent right. If a person has waived or surrendered his right to
file an appeal by an agreement then such agreement is valid and he is bound with this
agreement. Where there are more than one judgement debtor, it is not necessary for all to file
the appeal simultaneously, however without taking into the consideration that the rest of the
persons are not willing to file an appeal only one of them or two can file the appeal against
the decision of lower court.

First stage: Infringement of legal right

Second stage: Filing of suit (Right to get remedy)

Third stage: Award of decree

Fourth Stage: Appeal from the original decree

To file an appeal it is essential that there must be filed a suit due to violation of a claim
(right), which has been heard and decided by the court of law and consequently the situation
may arise of the dissatisfaction from the decree of court of original jurisdiction, so the litigant
may wish to file an appeal against the decree of original jurisdiction.

According to section 107, CPC, 1908 the appellate court is empowered to decide case finally,
to remand case, to take additional evidence and to frame issue and refer them for trial.
Appellate Court shall have power to pass and decree or order which ought to have been
 passed or as required to meet with the ends of justice (Rule 33 of Order 41). In an appeal, the
Appellate Court may reverse the order under appeal, it modify that order, it may dismiss the
order, it may confirm the order without modification. In an appeal appellant can be heard on
fact as well as on law. The appellate court may frame the issue, if the court finds that any
essential issue is not framed and may refer to the court to decide such issue to the court, from
which decree is preferred. The parties on appeal do not have the right to produce additional
evidence in the appellate court but if any evidence which was refused by the court against
which appeal is filed and such evidence was necessary to dis pose the case may be allowed to
produce before the appellate court or where the party states that after proper exercise the
evidence could not be produced in front of the lower court or that was not in the knowledge
of the appellant as well as the court may allow the production of additional evidences where
the court feels necessary the production of any evidence. The appellate court shall give the
decision with its reasons.

Appeal from original decree (First appeal) (Sees. 96 to 99A and Order 41):

Section 96 (1) of the Code of Civil Procedure, 1908 provides the right to file an appeal to the
party who is dissatisfied from the decree of the court of original jurisdiction. The rights of the
appealing party must be adversely affected by the decree given in a suit. In Jatan Kumar vs.
Golcha Properties Ltd. ( AIR 1971 SC 374) it is stated that though general rule is that only
the party to the suit can file the appeal but if a person, who is not a party but adversely
affected with the decree of the suit or is bound in any way can file an appeal with the
permission of the court. A legal representative of the party, a guardian appointed by the court
can also file an appeal in a court.

Section 96 Clause 1 recognizes the right to appeal against the decree. Appeal filed against
decree of the court of original jurisdiction, is called appeal from original decree or first
appeal. The provision 96 of the Code states that the first appeal can be filed from every
decree in a suit. The first appeal can be filed on question of law, fact as well as mixed
question of law and fact. The limitation period to file a first appeal is 30 days from the date of
decree. The appellant can apply to the court to give excuse to delay and the permission may
be granted by the court to condone the delay (Rule 3-A of Order 41).
The section 96 clause 2 grants also the right to file an appeal from the ex parte decree.
According to Order 9, Rule 6 Ex parte Decree is, if the defendant fails to appear before the
court in spite of a proper service of the summons, the court may proceed ex-parte and may
pass a decree in favour of the plaintiff. This is called an ex-parte decree. The person against
whom ex parte decree has been passed, has two concurrent remedies one he can apply to set
aside the decree in the court who passed the decree, another he can appeal against the decree
under Clause 2 of Section 96 CPC, 1908.

Section 96 Clause 3 states that no appeal lies against consent-decree. Where any decree is
passed with the consent of the party or the decree has come into operation due to the
compromise between the parties then no party can file the appeal against such decree. The
parties are presumed the best well wisher of their own. It is assumed that no man will take the
decision against own. It operates the principle of estoppel. In Thakur Prasad vs. Bhagwan
Das (AIR 1985 MP 171) the court stated that it creates an estoppel upon the parties in
contest. The consideration for the agreement is that both the sides give up their right to
appeal.

Beside above Section 96 Clause 4 recognizes no right to file an appeal in petty cases decided
by a small cause court if value of subject matter is below Rs.10,000/- except on point of law.
Hence, if a suit is decided by small causes court then the appeal can be filed on any question
of law without taking into consideration the value of the subject matter but if the appeal is to
be filed upon the question of fact then the value of the subject matter in question shall be
considered and no appeal shall be filed on the question of fact, if the value of subject matter
is below then 10,000/-

Section 97 of the Code, 1908 explains that if a suit is of such a nature, in which preliminary
decree is given before the pronouncement of final decree then the party who may appeal must
file the appeal as the preliminary decree comes out, without waiting for the final decree. If
there is failure to appeal against a preliminary decree, the party is barred from appealing from
the final decree passed by the court. In Kaushalya Devi vs. Baijnath Sayal (AIR 1961 SC
790) it was held that if any person has failed to challenge the preliminary decree, then he
shall be precluded to challenge the preliminary decree by way of appeal against the final
decree. The reason is, the preliminary decree is conclusive so far as matters dealt with and
decided by the court. These matters form part of the final decree. In fact, it operates as Res
'judicata to the first stage.
Rules of procedure are made to serve the ends of justice. Hence, mere technicalities should not
defeat justice. On these lines, Section 99 provides that if the error, defect or irregularity, or
non-joinder or misjoinder of parties, or cause of action, does not affect the merits of the case,
or the jurisdiction of the court, the appellate court should not reverse or substantially vary the
decree of the lower court. The merits of the case are affected when the error results in error
of judgment.

The appeal shall contain the all grounds of objection in separate heads and it shall be called
the memorandum of appeal (Rule 1 of Order 41). The Court shall not hear the appellant other
than the ground contained therein but the court has the discretion to allow the party on such
ground which was not mentioned in the memorandum of appeal (Rule 2 of Order 41). The
memorandum shall be accompanied by a copy of the decree. The Court of Appeal has the
right to admit or return an appeal. The Court can return the memorandum of appeal to amend
and to file afterwards. If the appeal is admitted by the Court, it shall register in register in
register of appeals. The appeal shall be decided by the majority of judges. The Court may
dismiss the appeal after hearing the appellant or his pleader on the day fixed for the hearing
(Rule 11 (1) of Order 41). On admission of appeal while under Rule 11 sub rule 2 of Order 41
the court may dismiss the appeal if appellant is called upon to appear but he has not appeared.
The court will mention the grounds to dismiss the appeal. On hearing under Rule 17 of Order
41 the court may dismiss the appeal on default. The appellant shall have the right to begin(Rule
16 of Order 41). Where the appellant appears but the respondent does not appear the appeal
shall be heard ex parte. The court shall pronounce the judgement in open court after hearing
the both parties or their pleaders. The judgment shall be in writing with its reasons.
Certified copies of judgment and decree shall be provided to the parties.

Second Appeal: (Appeal from appellate decree)

Second appeal means appeal from appellate decree. In other words, when your legal right is
infringed, you go to the court of original jurisdiction, which is having the jurisdiction in the
subject matter for the enforcement of your right and when the suit is disposed by the court of
original jurisdiction and decree is pronounced then one party acquires the status of decree
holder and the other judgement debtor. Judgement debtor is the person who is dissatisfied
from the decree, now he can go for the appeal against the decree of original jurisdiction court.
This is the first appeal filed against the original decree in the court of district Judge Court.
When the decree will be awarded by this court one party may be dissatisfied with the decree
given by this court and consequently he may be interested in filing of appeal in this suit again
to the superior court ( for the purpose of second appeal High Court of the concerned State).
The right of appeal is a substantial right and is provided in C.P.C. as a statutory right. Section
100-103, 107-108 and Order 42 apply to second appeal. Section 100 provides for appeal to
the High Court from every decree passed by the appellate court, if the High Court is satisfied
that the case involves a substantial question of law the court shall formulate the question.
This rule is subject to the other provisions of C.P.C. and other law for the time being in force.
An appeal lies also from an ex parte appellate decree. The court is empowered under this
section to hear for reasons any other substantial question of law in appeal though not
formulated by the court. Whether a particular question is substantial or not, depends on the
facts and circumstances of each case. Second appeal can be filed only on the grounds given
under section 100 of CPC as well as where the suit is for the recovery of money, no second
appeal shall lie if the subject matter of the suit is not exceeding twenty five thousand.

Substantial question of law -

The expression substantial question of law has not been defined anywhere in the code.
However, SC interpreted it in the case of Sir Chunni Lal Mehta & Sons Ltd vs. Century Spg
& Mfg Co Ltd (AIR 1962 SC 1314) as follows - "The proper test for determining whether a
question of law raised in the case is substantial would, in our opinion, be whether it is of
general public importance or whether it directly and substantially affects the rights of the
parties and if so whether it is either an open question in the sense that it is not finally settled
by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or
call for discussion of alternative views. If the question is settled by the highest court or the
general principles to be applied in determining the question are well settled and there is a
mere question of applying those principles or that the plea raised is palpably absurd the
question would not be a substantial question of law."

To be "substantial" a question of law must be debatable, not previously settled by law of the
land or a binding precedent, and must have a material bearing on the decision of the case, if
answered either way, insofar as the rights of the parties before it are concerned. To be a
question of law "involving in the case" there must be first a foundation for it laid in the
pleadings and the question should emerge from the sustainable findings of fact arrived at by
court of facts and it must be necessary to decide that question of law for a just and proper
decision of the case. An entirely new point raised for the first time before the High Court is
not a question involved in the case unless it goes to the root of the matter. It will, therefore,
 depend on the facts and circumstance of each case whether a question of law his a substantial
one and involved in the case or not, the paramount overall consideration being the need for
striking a judicious balance between the indispensable obligation to do justice at all stages
and impelling necessity of avoiding prolongation in the life of any lis.

Procedure:

Order 42 is related to second appeal and states that in disposal of second appeal the
provisions of Order 41 shall be applied. (Here the procedure of first appeal can be explained.)
The memorandum of appeal should precisely state the substantial question of law. If satisfied,
the court formulates that question of law. The appeal is heard by the High Court on that
question and the respondent is allowed to argue that there is no question of law. In second
appeal, if the evidence are sufficient the High Court may decide any necessary question for
the disposal of the suit. The court has power to hear on any other substantial question of law
if it so desires, Section. 100 A provides that if heard by a single judge and decided, C P C
1999 provides "100A. No further appeal in certain cases……

(a) where any appeal from an original or appellate decree or order is heard and decided,
(b) where any writ, direction or order is issued or made on an application under Article 226
or Article 227 of the Constitution, by a single Judge of High Court, no further appeal shall lie
from the judgment, decision or order of such Single Judge.

APPEAL TO THE SUPREME COURT

Supreme Court has the right to hear and decide the appeals from all over the India. It can
decide all the appeals filed before it against any court, tribunal. Supreme Court is the highest
court of India and the decisions given by the court have binding effect upon all courts in
India.

Appeal to the Supreme Court. (Section. 109 C.P.C.)

Provisions are framed in the C.P.C for appeals from the High Court to the Supreme Court.
The appeal may be from any judgment decree or final order in a Civil proceeding.
The High Court must certify .....
i) that the case involves a substantial question of law of general importance and
ii) that in its opinion the said question needs to be decided by the Supreme Court.
Scope:

i) This provision is subject to Art. 132 of the Constitution. Before 1972, the position was, that
the High Court had to certify that the value of the subject matter of the dispute was not less
than Rs.20,000/-. However this requirement was omitted by the 13th Amendment to the
Constitution. Sn.109 of C.P.C. has incorporated this amendment.

ii) Appeals are allowed only in a 'Civil proceeding'. It means a proceeding in which there
is the termination of right to property or a Civil right.
Hence, a reference under Income Tax Act or Sales TAX Act is not a Civil proceedings.

Certificate of fitness is to be granted by the High Court. The certificate is the leave
(permission) to appeal to the Supreme Court. Hence, if the certificate is refused, the party
cannot go in appeal. However, he may invoke the Special Leave jurisdiction (SLP) of the
Supreme Court under Art. 136 of the Constitution.

i) The value of the suit in the court of first instance to beRs.20,000/- is irrelevant now in
view of the omission of this requirement.

Procedure

The petition for the certificate should be made to the High Court which shall hear and
conclude within 60 days. If the certificate is refused, the petition shall be dismissed. If
certificate is granted to the appellant, the High Court, shall require him to provide security
and deposit as it may determine. Thereupon the Court may declare the case as admitted and
transmit the case to the Supreme Court.
Appeal From Order:
The judgement of the civil court is either decree or an order. The provisions relating to appeal
from orders are enshrined under section 104-106 and Order 43. The difference between
decree and order is made out on the ground of appeal. All decrees of civil court are
appealable but all the orders given by civil courts are not appealable. Only such orders are
appealable which are made under appealable under the Code. Besides, from the decrees two
appeals can be made but from order only one appeal can be done. The appeal from orders can
be filed to the court, to which court the appeal lies against decree, if appealable (section 106).
Section 104 of the Code, 1908 states that the appealable order are
 order under section 35-A awarding compensatory costs in respect of false claims
 an order refusing leave to institute a suit under section 91
 an order refusing leave to establish suit under section 92
 order under section 95
 an order under any of the provisions of this Code imposing a fine or directing the
arrest or detention in the civil prison except where such arrest or detention is in
execution of a decree.
 any order made under rules from which an appeal is allowed by rules. (Order 43 Rule
1 explains the orders which are made appealable) as an order returning plaint to be
presented to proper court or

 an order rejecting an application to set aside an ex pate decree.

Section 104 clause 2 imposes restriction to file an appeal from such orders which have come
into operation due to the appealable order. Thus only one appeal is allowed from order. The
provisions relating to first appeal shall apply to appeal from order.
*Reference (Section 113 & Order 46)

Any subordinate court to the High Court may state a case and refer the same for the opinion
of the High Court in non-appealable cases in the absence of question of law and the latter
may make such order thereon as it thinks fit. This is called reference. If the lower court is
satisfied that the case before it, involves a question challenging the validity of any Act,
Ordinance or Regulation (or any provision thereof) and that there is no decision of that High
Court or the Supreme Court on that, it may set-out its reasons and opinion and refer the same
for the opinion of the High Court.

The reference can be made only when the lower court has a 'doubt' on the question. The
reference can be made out only by the lower court suo motu or on the application of the
party. The object of reference is to get the question speedily decided by the High Court. This
saves much time of the parties which would have otherwise moved a writ challenging the
Statute under Art.226 and 227 of the Constitution. Provisions have been made in the Civil
Court Rules, relating to how the references are to be made
Order 46 Rule 1 prescribes the conditions for making reference to High Court by lower
court. For making the reference there must be a pending suit, execution proceeding or
appeal and a question of law or usage must be there. The Court trying the matter must
have a reasonable doubt which relate to validity of Act, Ordinance or Regulation and
other questions. The determination of such question must be necessary for the final
disposal of the suit. The court making reference must state the facts of case and frame
the question of law on which the opinion of High Court is required to decide the suit or
appeal. The lower court may either stay the proceedings till the disposal of question by
the High Court or may dispose the suit dependent upon the decision of the High Court.
If the High Court favour the decision of lower Court, the decree shall be confirmed and
if goes adverse to the decision of the lower court, the decree of the lower court will be
dismissed.
Review (Section.114 C.P.C. with Order 47)

Section 114 provides a substantive right to file review and Order 47 provides the procedure
for review. To review is to re-consider. It is the judicial examination of the case and its'
decision by the same court again. The provision is enshrined with the intention that sometime
human error may occur and due to commission of such error victim should not suffer. The
power of review is not inherent power of the court. Ultimately, the justice should not be
defeated because it is the prime goal of the legal system. A person aggrieved or affected
adversely with the decree and order may apply for the review. A person neither a party to the
proceeding or suit nor the person affected adversely can apply for the review. Provisions are
made in the C.P.C. for a review of a decision by the very court which passed the decree or
made the order. Any party to a suit, who considers himself aggrieved.....

i) by a decree or appealable order of a court in which no appeal lies or

ii) appeal lies but no appeal is preferred or

iii) by a decision on a reference from a Court of Small Causes-may apply for a review of the
judgment. As the application is made to the very court, it may reconsider and make suitable
orders thereof.

An application for the review application may be filed on the following grounds............
i- discovery of new and important evidence after exercise of due diligence which was not
within his knowledge or could not be produced at the time when decree was passed. The
evidence must be relevant and must be of such a nature that if it would be produced
before the judgement, it might have altered the judgement.
ii- error apparent on the face of record, meant by error must be patent or self-evident. It
may be of fact or of law. It should be decided on the facts of each case (Hari Vishnu
Kamath vs. Ahmad Ishaque, AIR 1955 SC 233)
iii-any other sufficient reason as court has ignored or failed to consider or frame any
material issue.
The power of review is exercisable upon the application of the aggrieved party though there
is no provision of suo motu exercise but in the case of A.R. Antulay vs. R.S.Nayak (1988) the
court stated that in appropriate case that the court may take suo motu action. The application
shall be filed by the aggrieved party and shall be heard by the same court and the same judge
 unless he is no longer attached to the court after hearing the matter the court may either
confirm the decree or vary it. The limitation period to file a review petition to other than
Supreme Court is thirty days. Article 137 of the Constitution confers powers on the Supreme
Court to review its' judgement.

Revision (Section.115)

The Revision jurisdiction can be used under Section 115 of the Code of Civil
Procedure,1908. The object of revision jurisdiction is to preclude subordinate courts from
acting arbitrarily, illegally or irregularly. In Major S.S.Khanna vs. Brig. F.j.Dhillon (AIR
1964 SC 497) it was held that the goal of section 115 of CPC is to keep in bounds to
subordinate courts from acting irregularly. The revision can be filed by the aggrieved party or
the power can be exercised by the court suo motu also in the interest of justice. According to
section 115 of the Code High Court may call the record of any case which has been decided
by the any subordinate court and in which no appeal lies. The revision jurisdiction can be
used in the State of Uttar Pradesh by the court of District Judge, where the valuation of a case
decided by a subordinate court is not exceeding five lakh rupees. A superior court may revise
the decision of the subordinate court given in an original suit or other proceeding where no
appeal lies and it seems that subordinate court
i) acted in excess of its jurisdiction. ,
ii) failed to exercise its jurisdiction.
iii) acted illegally or with material irregularity. This refers to errors of jurisdiction.

According to the Amendment Act, 1999 of CPC, applicable in Uttar Pradesh when the
revision shall be filed in High Court it shall contain the certificate of the fact that it is not
maintainable before the district court. The Superior Court shall not alter or reverse any order
under this section except when the order made in a suit or other proceeding would have been
made in the favour of the party applying for the revision would have finally disposed of the
matter or in the case where the order which is made by the court against which the revision
application is filed, if allowed to stand would cause the miscarriage of justice or irreparable
injury to the applicant. In such a case on an application by the applicant for revision, the High
Court or District Court calls for the records of the lower court, and makes such orders as it
thinks fit. To file a revision in a superior court would not apply as stay of suit or other
proceeding except where it is specifically stayed by the superior court. The limitation period
 to file the revision is 90 days from the date of decree or order in other proceeding.

Scope

The Revisional Jurisdiction is discretionary in character. Hence, even if the above

conditions are satisfied the Court may not interfere. It is only when there is a substantial
failure of justice to a party that it interferes. It has powers to vary or reverse any order made
by the lower court. The test is, if the order is allowed as it is, it should cause injustice and
irreparable loss to the party. There is no Revisional Jurisdiction of a decree or order against
which there is a regular appeal under C.P.C. The High Court will not enter into the merits of
the case but it examines whether the requirements of law have been duly fulfilled by the
lower court. The irregularity must be of such a nature as to justify an interference to prevent
any gross miscarriage of justice. The Court will not interfere on mere technical grounds.
* Note: the difference between reference, review and revision can be asked.
* difference between appeal and revision

UNIT 5

LIMITATION ACT, 1963

 After the Jammu and Kashmir Reorganization Act, 2019 it applies to whole of the India.
 The Act has 32 sections, 137 articles and is divided into 10 parts.
 In B.K. Education Services Pvt. Ltd. Vs. Parag Gupta and Associates (2018) the
Supreme Court held that the law of limitation is procedural in nature and has
retrospective effect.

Bar of Limitation (s. 3)

The law of limitation finds its roots in the maxim Interest Reipublicae Ut Sit
Finis Litium which means that in the interest of the state as a whole there should be a limit to
litigation and vigilantibus non dormientibus Jura subveniunt which means the law will assist
only those who are vigilant with their rights and not those who sleep upon it. Section 3 of the
Act describes the Bar of limitation as subject to the provisions contained in Sections 4 to
24 (inclusive) every suit instituted, appeal preferred, and application made after the prescribed
period shall be dismissed although limitation has not been set up as defense. Section 3 of the Act
provides that any suit, appeal, or application must be made within the limitation period specified
in the Limitation Act. If any suit, appeal or application is made beyond the prescribed period of
limitation, it is the duty of the Court not to proceed with such suits irrespective of the fact
whether the plea of limitation has been set up as a defence or not. The provisions of Section 3
are mandatory, and the Court can suo motu take note of question of limitation.

The law of limitation only bars the remedy by way of the suit, if the period of limitation expires,
the party entitled to file a suit for the enforcement of a right is debarred from doing so. However,
the original right on which the suit was to base is not barred. Thus, limitation only bars the
judicial remedy, but it does not extinguish the right. The Supreme Court in Punjab National
Bank and Others vs. Surendra Prasad Sinha (1992) held that the rules of limitation are not
intended to destroy the rights of parties. Section 3 only prevents the remedy but does not
eliminate the right to which the remedy is related.
The law of limitation does not stop a defendant from making a legitimate defence even if the
suit is time barred.
There is one exception to the aforesaid rule contained in Section 27 of the Limitation Act, 1963.
It provides that where a person’s right to institute the suit for the possession of any property has
become barred by limitation his right to the property itself shall be extinguished. For the
purposes of this Act—
(a) a suit is instituted,—
(i) in an ordinary case, when the plaint is presented to the proper officer;
(ii) in the case of a pauper, when his application for leave to sue as a pauper is made; and
(iii) in the case of a claim against a company which is being wound up by the court, when
the claimant first sends in his claim to the official liquidator;
(b) any claim by way of a set off or a counter claim, shall be treated as a separate suit and shall
be deemed to have been instituted —
(i) in the case of a set off, on the same date as the suit in which the set off is pleaded;
(ii) in the case of a counter claim, on the date on which the counter claim is made in court;.
(c) an application by notice of motion in a High Court is made when the application is presented
to the proper officer of that court.
The starting point of limitation depends on the subject matter of the case and is detailed in Act’s
schedule.
The law of limitation does not stop a defendant from making a legitimate defence, even if the
suit is time-barred. Rullia Ram Hakim Rai vs. S. Fateh Singh (1961) it was held the bar of
 limitation does not prevent a defence. It only bars the action for recovery and makes it time-
barred, but it does not stop a debtor from paying off their time barred debts.
The Honourable Supreme Court in Shrimant Shamrao Suryavanshi vs. Pralhad Bhairoba
Suryavanshi (2002) noted that the Limitation Act removes the plaintiff’s ability to enforce their
rights through a court action. However, it does not prevent the defendant from presenting a
defence, even if it is barred by limitation and unenforceable in court.

Sufficient cause
Delay condonation is a legal process that allows courts to extend the time for filing appeals,
applications, or other legal documents beyond the statutory deadlines. This is primarily
governed by Section 5 of the Limitation Act, 1963, which states that a court may admit an
appeal or application after the prescribed period if the appellant or applicant shows “sufficient
cause” for not filing within the time limit. The term sufficient cause is not defined under the Act.
However, this provision does not apply to filing original suits, where strict time limits must be
adhered to. In civil cases, Section 5 of the Limitation Act allows for condonation of delay in
appeals or applications if a valid reason is provided.
The provision applies to:
 Appeals
 Applications
It explicitly excludes suits from its purview, meaning condonation of delay cannot be invoked
for filing a suit beyond the limitation period.

The basic principle is to advance the cause of justice. This idea is that legal procedures exist to
facilitate justice rather than hinder it. In the context of condoning delay, this principle is
significant for several reasons. It emphasizes that legal procedures should support the pursuit of
justice, allowing for genuine circumstances causing delays to be considered without strictly
adhering to timelines that may deny rights. This approach promotes fairness, as it prevents rigid
rules from leading to unjust outcomes, particularly when delays are beyond a party’s control. It
also calls for a balance between enforcing procedural rules and upholding individual rights,
recognizing that procedures are necessary for order but should not compromise justice.
Ultimately it underscores the importance of judicial discretion, allowing judges to assess cases
based on their merits and exercise their judgment to ensure that justice prevails over strict
procedural adherence.
there is no specific or fixed time limit for delay that can be condoned by the court. The law does
not prescribe any maximum limit for condoning delay. Instead, the court has discretionary
power to condone any length of delay, provided the party seeking condonation can establish
“sufficient cause” for the delay. However, the longer the delay, the more rigorously the court
will examine the reasons provided. Courts tend to exercise this discretion carefully, and delays
caused by negligence, indifference, or intentional delay are unlikely to be condoned. The court’s
primary consideration is whether the cause of the delay is reasonable and justifiable, with each
case being judged on its specific facts and circumstances.
Courts commonly condone delays based on specific grounds which demonstrate genuine and
unavoidable reasons for failing to act within the prescribed time limit. Some of the common
grounds for condonation of delay include:

 Illness or medical emergency

 Ignorance of legal proceedings or technical procedures
 Incorrect Legal Advice
 Delay due to ongoing settlement or negotiations
 Bureaucratic Delays in case of Government departments/ corporate organizations
 Court procedural Delays
 Documents or files misplaced/ mishandled
 Unforeseen circumstances (like COVID-19 happened)
 Death of advocate/ family member
 Bona Fide Mistakes or Inadvertent Errors
The Supreme Court in the case of Collector Land Acquisition, Anantnag & another v. Mst.
Katiji & Ors 1987, has laid down some guiding principles which the court must follow while
dealing with the issue of Condonation of delay and they are as follows:
 Ordinarily a litigant does not stand to benefit by lodging an appeal late.
 Refusing to condone delay can result in a meritorious matter being thrown out at the very
threshold and cause of justice being defeated. As against this when delay is condoned the
highest that can happen is that a cause would be decided on merits after hearing the
parties
 Every day's delay must be explained, and it does not mean that a pedantic approach
should be made. The doctrine must be applied in a rational common sense pragmatic
manner.
 When substantial justice and technical considerations are pitted against each other, cause
of substantial justice deserves to be preferred for the other side cannot claim to have
vested right in injustice being done because of a non-deliberate delay.
  There is no presumption that delay is occasioned deliberately, or on account of culpable
negligence, or on account of mala fides. A litigant does not stand to benefit by resorting
to delay. In fact he runs a serious risk.
 It must be grasped that judiciary is respected not on account of its power to legalize
injustice on technical grounds but because it is capable of removing injustice and is
expected to do so.
Sufficient Cause
Sufficient cause means there should be adequate reasons or reasonable ground for the court to
believe the applicant was prevented from proceeding with the application in a Court of Law.
Section 5 allows the extension of the prescribed period in certain cases on sufficient cause being
shown for the delay.
In State of West Bengal v. Administrator (1972):
The Supreme Court held that the extension of time is a matter of concession and cannot be
claimed by the party as a matter of right. It is difficult and undesirable to precisely define the
meaning of sufficient cause. It must be determined by the facts and circumstances of each case.
However, a sufficient cause should fulfill the following essentials:
 It must be a cause which was beyond the control of the party invoking it.
 He must not be guilty of negligence.
 His diligence and care must be shown.
 His intention must be bonafide.

In Balakrishnan v. M.A. Krishnamurthy (1998) the Supreme Court held that the law of
limitation is based on public policy and aims to prevent parties from being penalised for delays
caused by circumstances beyond their control. The court reiterated that the term “sufficient
cause” should be interpreted liberally, and that the goal of the Limitation Act is not to destroy
the rights of parties but to ensure timely pursuit of remedies.
To get a delay condoned in court, the party must prove “sufficient cause” for the delay, showing
that the reason was valid, unavoidable, and beyond their control, without negligence or bad
faith. It is crucial to demonstrate that the party acted in good faith, making genuine efforts to
meet the deadline but was prevented by specific circumstances like illness, incorrect legal
advice, or procedural delays. The party must also show prompt action once the cause of the
delay is resolved. Courts require documentary evidence such as medical certificates or affidavits
to support the claim and assess whether there was no malicious intent behind the delay.
Ultimately, the court uses its discretion, focusing on justice, to decide whether to condone the
 delay. In Lala Mata Din vs. A. Narayanan (1970), the Supreme Court held that while
condonation of delay is discretionary, courts should take a liberal approach in such cases. The
court emphasized that procedural delays should not prevent the delivery of justice, especially
when the delay is not due to negligence or mala fide intent. The court recognized that delays
might occur due to various unavoidable reasons, and technicalities should not override
substantive justice.
N. Mohandoss v. The management of Darasuram (2021)
The court held that, it is to be borne in mind that the term sufficient cause under Section 5 of
Limitation Act, 1963 is an elastic one to enable the court to apply the law in a meaningful
fashion, with a view to secure the ends of justice.

Legal Disability

Legal disability under limitation act, 1963 refers to certain conditions or situations that prevent a
person from initiating legal action or filing suits within the standard limitation period. The
Limitation Act prescribes specific time limits for various legal actions, and legal disability
provisions are included to protect the rights of individuals who, due to their vulnerable
circumstances, are unable to act within the specified time frame. The disabled individual or their
legal representative must invoke the relevant provisions and provide evidence of the disability to
avail of the extension of time. Once the disability ceases to exist, the normal limitation period
starts running from that point onwards, ensuring a reasonable balance between the interests of
the parties involved.
Sections 6, 7 and 8 of the Limitation Act, 1963
Section 6: Under this section, the normal limitation period for filing a lawsuit or claim may be
extended if the person entitled to file the claim is considered to be under a legal disability at the
time the cause of action accrues. The section deals with following types of disabilities:
 Minority
 Insanity
 Idiocy
Minority
 Minor is a person who has not attained the age of 18 years according to Indian Majority Act,
1875.
 The calculation of the age has to be done according to Section 3(2) of the Majority Act, 1875 -
In computing the age of any person, the day on which he was born is to be included as a whole
 day and he shall be deemed to have attained majority at the beginning of the eighteenth
anniversary of that day.
Insanity
 It means unsoundness of mind or lack of the ability to understand that prevents someone from
having the mental capacity required by law to enter into a particular relationship, status, or
transaction or that releases someone from criminal or civil responsibility.
 In the case of S.K.Yadav v. State of Maharashtra (2009), the concept of insanity has been
dealt with in detail by the Supreme Court and the court opined that only legal
insanity is recognized by law and not the medical insanity.
 Another case on the point of insanity is that of Hari Singh Gond v. State of Madhya Pradesh
(2008) in which the Supreme Court categorized insanity into further four categories:
 When one is an idiot;
 When one is made non compos by illness
 When one is a lunatic or a mad man and
 When one is drunk.
Idiocy
A person who acts in an extremely foolish way is said to be an idiot. Idiocy is not an acquired
form of mental instability, rather a person is an idiot since his/her birth.

Computation of Limitation Period in case of Legal Disability

Persons with insanity, minority and idiocy as disabilities are exempted under Section
6 to file a suit or an application for the execution of the order in the time prescribed by the
law. They are allowed to file a suit or an application when their disability has ceased and
counting the period starts from the day their disability comes to an end.

Section 7: This section deals with the “disability of one of several persons” and addresses
situations where multiple persons are jointly entitled to bring a legal claim. In simpler terms, this
section deals with situations where multiple persons have a joint right to file a lawsuit or execute
a decree, and one of them is under a legal disability, such as being a minor, of unsound mind. If
a discharge (release or satisfaction) of the claim or decree can be obtained without the
concurrence of the person under the disability, then the limitation period will run against all joint
claimants, including the disabled person. However, if a discharge cannot be obtained without the
concurrence of the disabled person, then the limitation period will not run against any of the
joint claimants until one of the following events occurs: One of the claimants becomes capable
of giving a discharge without the concurrence of the others, or the disability of the person under
legal disability ceases.
Section 8: This section specifies certain situations in which the general rule regarding the
commencement of the limitation period is subject to exceptions. It states that Section 6 and
Section 7 do not apply to suits related to enforcing pre-emption rights, nor do they extend the
limitation period for such suits beyond three years from the cessation of the disability or the
death of the person affected by the disability.
Object behind Legal Disability provisions under Limitation Act
Protection of Vulnerable Individuals: These provisions aim to protect the rights of vulnerable
individuals, such as minors or persons of unsound mind. These individuals might face
difficulties in understanding their legal rights fully or pursuing legal claims effectively due to
their disabilities or circumstances. By suspending the limitation period during their disability,
these provisions ensure they have a fair opportunity to bring their claims once their disability
ceases to exist.
Equitable and Fair Treatment: The provisions embody principles of equity and fairness in the
legal system. They recognize that individuals facing legal disabilities should not be penalized by
having their claims barred by time limitations while they are unable to act due to their
conditions. Legal disability provisions ensure that justice is not denied to those who genuinely
need it due to their circumstances.
Balancing Certainty and Justice: While limitation periods are essential to provide legal
certainty and prevent stale claims, these provisions strike a balance by granting a reasonable
extension to those who genuinely require it. They prevent potential abuse of the limitation
period by providing a suspension when warranted, thereby ensuring justice is not compromised
for those under such disability.
Promoting Access to Justice: By extending the limitation period for individuals under legal
disability, the provisions promote access to justice. They allow such individuals and their legal
representatives to gather evidence, assess their claims, and seek appropriate legal advice before
initiating legal proceedings. This access to justice is crucial for protecting their rights and
seeking appropriate remedies.
The Legal Disability provisions under the Limitation Act serve as an important safeguard to
protect the rights of vulnerable individuals and ensure that they are not unjustly barred from
seeking legal remedies due to their disability. The provisions aim to strike a balance between the
need for time limitations and the fair treatment of individuals facing challenges in pursuing their
legal claims.

Continuous Running of Time (section 9)

Section 9 of the Limitation Act, 1963, addresses the continuous running of time. This refers to
an idea that the time limit for bringing a legal claim begins to run from the date that the cause of
action arises, and continues to run until the claim is brought or until it is barred by expiration of
time limit. Once a period of limitation has begun, no subsequent disability or inability to sue can
stop it. The limitation period continues to run as if no such disability had occurred, ensuring
legal certainty and finality. An exception exists: if a creditor's debtor is granted letters of
administration, the running of the limitation period for a suit to recover the debt is suspended
during the administration.

This section is founded on the general principle that when once time has commenced running, it
will continue to do so unless it is stopped by virtue of any express statutory provisions. This rule
says when once time has begin to run, it runs continuously and without any break or interruption
until the entire prescribed period has run out, and no disability or inability to sue, occurring
subsequently to the commencement will stop it running.

Essentials of section 9

1. Time has begun to run: For the applicability of this section, it is necessary that
time has bugun to run. Time starts when the cause of action accrues.
2. Disability or Inability to sue: This includes disability to make application for
execution as well. Disability means the want of legal qualifications to act and
inability means the want of physical power to act. This disability is a state of
being a minor, insane or an idiot whereas illness, poverty are instances of
inability.
3. Subsequent disability or inability: To apply this section, it is necessary that the
disability or inability must accrue subsequent to the cause of action.
4. Disability or inability of the Plaintiff: The expression disability or inability
refers to which pertains to plaintiff.

Proviso of section 9

The proviso applies only to the administrator under the grant of letters where he is a debtor of
the deceased. It does not apply to a case where there has been a fusion of interests of the
mortgagor and the mortgagee in the same person. If a creditor passes away and the debtor (the
person or entity who owes the debt) is appointed as the administrator of the creditor’s estate, the
time limit for the debtor to bring a legal action to recover the debt is suspended while the
administration of the estate continues. In other words, if the creditor dies, and the debtor is
appointed to manage the creditor’s estate, the debtor will not need to worry about the time limit
for bringing the legal action to recover the debt expiring while the estate is being settled. This
provision is intended to allow the debtor to focus on managing the creditor’s estate in a fair and
orderly manner, without the added pressure of having to worry about the time limit for
recovering the debt.

Acquisition of Ownership by Possession (s. 25-27)

Acquisition of Ownership by Possession is provided under the Limitation Act, 1963 by
Sections 25, 26 and 27. Easement by prescription occurs where someone uses another's
property for a certain amount of time without permission in a way in which the owner should be
aware of. The term as of right signifies enjoyment by a person in the assertion of a right. In
order to fall under this category enjoyment should be as of right, the person claiming it must
have exercised it without leave or license from anyone.

Acquisition of Easements by Prescription (Section 25) The Law of Prescription is

the period at the expiry of which judicial remedy is barred, but a substantive right is either
acquired or extinguished by another. Section 25 of the 1963 Act deals with the acquisition of
easements by prescription. The provision says that if an individual has enjoyed peaceful access
and use of light, air, way, watercourse, water use or any other affirmative or negative easement
without any kind of interruption, as of right, for 20 years (30 years in case of government
property), then the right of such easement becomes absolute and indefeasible.

Further, this provision provides that the stipulated period of 20 years (or 30, as the case may be)
is calculated for 2 years from the date of filing the suit in which the claim to the easement is
contested. The easementary rights must be exercised within 2 years of the filing of the suit. The
explanation provided under the provision puts a condition on the enjoyment of these elementary
rights by stating that there must not be any interruption in the stipulated time except when there
is an actual discontinuance of possession or enjoyment for at least 1 year due to the obstruction
by someone else. The onus of proving the existence of such right lies on the party which is
alleging such right. This section does not apply when the claim is related to a public right over a
public land and not an easementary right.

Exclusion in Favour of Reversioner of Servient Tenement (Section 26) Sections

26 and 27, both are to be read in light of Section 25. Section 26 of the 1963 Act deals with the
exclusion in favour of reversioner of servient tenement. If the land or water, on which an
easement is enjoyed, was held by someone who has an interest for life or a lease exceeding 3
years, then the time for which the easement was enjoyed during such interest is to be excluded in
calculating the 20 years provided that the claim to easement is resisted within 3 years after the
expiration of the life interestor lease by the person who becomes entitled to the land or water
after such expiration. Here, the time excluded from the calculation is eliminated for the
advantage of the reversioner and not for the benefit of the claimant. Reversion is the returning
of an estate to the grantor or the grantor's heirs after the interest granted expires.
Interruption prevents the acquisition of the right even during the time which has to be excluded
from the calculation of the period of prescription.

Hence, where any land or water upon, over or from, which any easement has been enjoyed or
derived has been held under or by virtue of any interest for life or in terms of years exceeding
three years from the granting thereof, the time of the enjoyment of such easement during the
continuance of such interest or term, is to be excluded in the computation of the period of twenty
years in case the claim is, within three years next after the determination of such interest or term,
resisted by the person entitled on such determination to the said land or water.
Example-A sues for a declaration that he is entitled to a right of way over B's land. A proves that
he has enjoyed the right for twenty- five years; but B shows that during ten of these years C, a
Hindu widow, had a life-interest in the land, that on C's death B became entitled to the land, and
that within two years after C's death, he contested A's claim to the right.
The section is entirely for the benefit of reversioners. The object of the section is the prevention
of easement being acquired under the Act against interested persons who are incapable of
resistance. The section does not apply to a donee or transferee from a Hindu widow by virtue of
her powers as representing the estate, since in such a case, the transferee succeeds the widow in
her capacity as full owner and not as upon the determination of her life interest. Another object
of this section is to preclude any easement from arising where the servient tenement is enjoyed
or held for a limited period, obviously because a person having a limited interest may not have
any enthusiasm in opposing or resisting any enjoyment that might ultimately ripen into an
easement.

Section Analyzed

When during the period of prescription the servient tenement has been held by:

a. a tenant for life, or

b. a lessee under a lease for a term, the term of which exceeded three years, and the claim is
contested within three years from the determination of the interest of the life-tenant or
the term of the lease,-the period during which the servient tenement was held by the life-
tenant or lessee is excluded in computing the period for 20 years.

When the period of twenty years was running the servient tenement was held by a limited owner
having only a life-interest in it, this section provides that the period during which the servient
tenement has been held by a person with life-interest only, or with an interest limited only for a
term of years (exceeding three years), is to be excluded in reckoning the "twenty years"
prescribed by S. 25 provided that the reversioner, within three years of his getting into the
reversion, resists the claim to the easement. In another words Section 26 provides that in
computing the period of twenty years mentioned in section 25, if the servant tenant has been
held by virtue of any life interest or any other (limited) interest for a term exceeding three years,
the time of enjoyment of such easement during the continuance of such life interest or limited
interest shall be excluded in computing the period of twenty years, in case the claim to the
easement is, within three years next after the determination of such interest or term, resisted by
the person entitled, on such determination, to the dominant tenement.

With context to the above mentioned section, the Section 25 of the Limitation Act talks about
the acquisition of easements by prescription, which means gaining the right to use another's
property through long term, uninterrupted and peaceful enjoyment.

1. If someone has peacefully and rightfully access to light, air, a way, watercourse or other
easement for 20 years without interruption, the right to such access becomes absolute
and cannot be contested.

2. The 20 year period is considered to end within two years before the start of any legal
dispute related to the claimed easement.
 3. When the property in question belongs to the government, the 20 year period is extended
to 30 years.

4. An interruption only occurs if someone other than the claimant actively obstructs the
possession or the enjoyment and such obstruction is tolerated for a year after the
claimant is aware of it.

Relevant Case Laws

Mahomed Ali v/s Jugal Ramchandra, 14 Suth WR 124 The court held that where a claim to a
right of is supported by evidence of user only, the court must satisfy itself whether or not the
user was founded on actual right, the guiding principle being the open user of another's land for
the purposes of road or pathway if continued without interruption for a long time and not
attributable to permission induces presumption that user was right.

Ismail Biswas and Ors v/s Emperors AIR 1930 Col 289 The court held that if evidence is that
a person has occupation of lands and has been taking water to irrigate his lands through a
channel from this tank, that is pretty good evidence that he has some right so to do. This is not
one of those things that can be concealed or that can be done behind back of people so that
nobody in the neighborhood can possibly get to know of it. It is done openly and on the face of
it, it appears to the court that the fact of enjoyment of such a right as that is some evidence of
right itself.

Extinguishment of Right to Property (Section 27) Section 27 provides for the

extinguishment of the property right and enshrines that if a person does not institute a legal suit
to establish their possession and ownership over property within the limitation period applicable
for such a suit, then after the expiry of the stipulated period, the rights of the person over the
property are said to be extinguished. This provision refers to a suit for possession and not to a
suit for specific performance. However, it is to be noted that the extinction of the right to claim
one relief does not necessarily invoke the extinction of the right to claim another relief.

It conveys that if a person fails to file a suit for recovery of possession, within a period of
limitation, his right to recover the possession of that property also extinguishes.