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Notes On Civil Procedure Code, 1908: Chapter 1: Summary of Parts I To Xi
Notes On Civil Procedure Code, 1908: Chapter 1: Summary of Parts I To Xi
Part one of the CPC, deals with the basics of a suit. It deals with the basic flow of a case. It is
divided into 7 sub sections.
This part firstly empowers and gives authority to the court to deal with all civil matters.
Jurisdiction is the first step before institution of a suit. Before filing any suit, it is important to
first understand whether the suit is allowed to be filed. There are three kinds of jurisdiction :
Subject matter, pecuniary and territorial. A decree passed by the court without jurisdiction is
null and void. This part lays down the conditions in which the court may bar an individual
from proceeding with the suit. There are many provisions in the CPC, which empower a court
to bar a suit, apart from that two major conditions on which a suit may be barred are:
Res judicata: Laid down in Section 11, this is an important principle in order to avoid
multiplicity of proceedings. This simply means that if a matter is heard and finally decided by
a court, the parties are barred from filing the same suit again. This is not to be confused with
appeals, revisions, review etc. A suit relating to the same cause of action cannot once again
be filed in a court of same jurisdictional stature. E.g. A rents to B a house in Bombay, when
B fails to pay rent A files a suit in the Civil Court, the suit is dismissed against A on merits.
Now A cannot again file the same suit. The same is also true for multiple jurisdictions, i.e. if
a suit may be filed in two jurisdictions and after receiving a judgement from one jurisdiction
the applicant cannot file the same suit in another jurisdiction. If a person could raise a plea in
a previous case and fails to do so, they cannot in a subsequent suit raise the remaining plea.
This is known as the doctrine of Constructive res judicata.
Res sub judice: If a matter in issue is directly and substantially in issue in another court which
is previously instituted, the current court is barred by the principle of res sub judice. This
means that a case cannot be filed in two courts simultaneously. The test to determine whether
a case falls within res sub judice is whether the decision in a previously instituted suit would
operate as res judicata in the subsequent suit.
Place of suing:
Any objection to jurisdictions must be raised at earliest. Courts have the power to transfer
suits to any other jurisdiction, as they deem fit.
Institution of Suits:
A suit is instituted upon filing a plaint. The Oder 7 lays down proper guidelines in which a
plaint should be drafted.
The next step after filing a suit, is involving the defendant in the suit. This the known as
sending summons. The summons may be sent by the court or the court may authorise the
plaintiffs to serve the summons. Failure to accept summons, would lead to substituted
summons. Order on service mentions the rules for service. Once summons are served to the
defendant the courts have power to issue other orders and summons to examine witnesses and
other requirements to adjudge the matter. Arrest and detention, attachment can be ordered if
summons are not adhered with.
On hearing the case, the court pronouns a judgement and passes a decree. A judgement is the
reasoning and the decree is the actual act that is required to be executed.
Interest may also be mentioned in the decree for delay in fulfilling the decree etc. Costs may
also be levied on either party for obstruction of its processes or any other reasons.
Part II
Part II deals with the execution process of the decree passed. The court which pronounces the
decree has the authority to execute it but it has the right to transfer this authority upon
another. Any questions arising out of the execution of decrees are decided by the executing
authority itself and no separate suit can be filed for the same.
The person in favour of whom the decree is passed is called the Decree holder and the person
against whom the decree is passed is called the judgement debtor. In case the judgment
debtor has died the suit can be executed by the legal representative, ancestral property may
also be used to enforce the decree.
However, if the judgement debtor fails to comply with the executing court and does not
satisfy the decree. The executing court has the power to order arrest or detention, attachment
of property, sale of property, etc. However extensive guidelines are laid down in order to
prevent the misuse of these sections. Protection has also be given to women, ministers of
legislative assemblies and parliament from arrest.
Incidental proceedings are, taken recourse to in aid of the ultimate decision of the suit which
would mean that any order passed in terms thereof, subject to the rules prescribed therefor,
would have a bearing on the merit of the matter. Any order passed in aid of the suit are
ancillary powers. Whenever an order is passed by the Court in exercise of its ancillary power
or in the incidental proceedings, the same may revive on revival of the suit. These
commissions include, appointment of a specialised person for scientific analysis, sale of a
property, commission witness etc.
Part IV
Suits against government are treated differently, as the government is one of the biggest
litigator and deal with a larger context of rights it is important to have a specialised procedure
for them. The CPC lays down that is mandatory for every plaintiff to issue a 2 month notice
to the concerned government before filing the plaint. This is done in order to ensure the state
or central government has time to either remedy the situation within the notice period or
prepare for the suit. The law also protects any public officer sued from arrest. This is because
public officials cannot be personally held liable for acts done in official capacity.
Aliens are those persons who are residing in India but are citizens of a country with which
India is at war. Only those Aliens who reside with the permission of the central government
have a right to file a suit.
Foreign rulers may sue on behalf of their state, however the prosecutors and defenders are
appointed by the Government. Former rulers of the Indian State, may sue as per the rules of
the foreign rulers.
Part V
Special proceedings
With the advent of alternative dispute resolution, the courts have now started referring
disputes to these dispute resolution mechanisms.
In cases where an act is of public nuisance, which harms not just one individual but several
individuals and public at large the suit maybe filed either by the advocate general or by two
or more persons together by the leave of the court. The rationale behind this is to avoid
multiple suits and waste judicial time.
This part also defines interpleader suits. Often two or more petitioners claim over the same
amount of money, property etc. against a person. The defendant in such a case who is willing
to provide the same to the rightful claimant may request for an interpleader suit. Where both
the plaintiffs
Part VI
Supplemental proceedings: In order to proceed with the case the court may issue any orders
with regards to arrest, detention, interim injunction etc. These orders are issued so that the
ends of justice are not defeated. For example, In case of a suit for trademark infringement, the
court may issue a temporary injunction upon the defendant from using their mark in order to
stop any further damage to the good will. However if later the decision is ruled in favour of
the defendant the court may also provide for compensation. These interim reliefs become
very important in protecting the subject matter of the suit, because the suits in India
especially take years to come to an end due to the long standing pendency.
Part VII
Appeals
Appeals can arise out of two pronouncements decrees and orders. Decree and order have
been defined under Section 2. However in simple terms, decrees are based on reason and
determine the rights of parties, and conclusively establish the findings of the court. Whereas
all other pronouncements made by the court, which may not necessarily be on merits or be
temporary in nature are orders.
All Decrees can be appealed (Including ex parte decrees) except if the decrees have been
passed by the consent of the parties. With regards to the decrees passed by the small causes
courts, the decree shall only lie on questions of fact. Preliminary decrees, cannot be appealed
along with the final decree, and have to be appealed when the preliminary decree is passed.
Irregularity of procedure cannot be a ground for complete and substantial reversal or
modification of a decree, unless such may cause grave injustice.
Second appeals only lie if there is a substantial question of law, these lie only in the HC.
However the HC may on its own motion determine a question of fact.
Appeal from Orders: No orders apart from those mentioned in Sec.104 can be appealed
except as otherwise provided.
Appellate courts have the power to decide a case finally, or remand, or frame newer issues, or
take additional evidences as necessary.
A party may appeal to the Supreme Court if there is substantial question of law of general
importance and on the opinion and certification by the HC. However, even if the certificate is
not granted the power under Article 136 stands valid.
Part VIII
Reference: In cases where the validity of a law, regulation or ordinance is challenged, the
subordinate courts have an obligation to refer the same to the High Court. Thus a reference is
made, by the court and not by the parties. An application may be made by the parties to the
subordinate court, to refer the matter. The grounds for reference is when there is reasonable
doubt on the question of law by the subordinate court.
Review: a review is the reconsideration of the same matter by the same judge who has
decided the matter. If the judge who decided is present in the court, then he alone has
jurisdiction to review the matter decided by him. He is considered to be the best to reconsider
the case as only he will be able to remember what arguments were done and what reason he
used to decide that case. Grounds for review, discovery of new and important evidence,
judgement based on error apparent on the face of law.
Revision: The object behind empowering the High Court with revisional jurisdiction is to
prevent arbitrary illegal or irregular exercise of jurisdiction by the subordinate court. Under
section 115 the High Court is empowered to keep an eye on the proceedings of subordinate
courts that the proceedings are being conducted in accordance with the law, under its
jurisdiction for which it is bound for and in furtherance of justice.
Part IX and X
This part lays down specific guidelines for the High Courts and how CPC would apply to
them. The provisions are self explanatory and do not need additional explanation.
Part XI
This part provides for all misc. grounds and provisions of the CPC, and covers a large
number of provisions. It provides exemption from arrests and personal appearances, for
women bound by custom, other persons who may be exempted (oldage, illness), ministers of
the government etc.
It then mentions general guidelines on language of the courts, and language for written
documents. The code then talks about the term ‘restitution’ has not been defined under the
civil procedure code. But there is a direct mention of the term under Section 144 of the code.
Hence, the imported definition of restitution is ‘an act of restoring a thing to its proper owner’
For the purpose of granting remedies as a part of restitution, the court has been given wide
powers phrased as ‘the court may make any orders’. This means that the court can pass any
order to meet the ends of justice. The section provides some type of orders that the court may
typically pass over an application for restitution. The only bar to this remedy is that these
remedies must arise as a consequence of the variation, setting aside or modification of the
decree or order.
Timeline of events
1950 – Constitution came into force, where civil procedure was inserted into the concurrent
list. Therefore both the central and the state governments had powers to rule upon it.
1970 – Maharashtra State legislature amends via Code of Civil Procedure (Maharashtra
Amendment) Act, 1970 and inserts Section. 9A into the CPC
1976 – The central government via Code of Civil Procedure (Amendment) Act, 1976
extensively amends the CPC, which leads to the automatic repeal of Section 9A (Maharashtra
Amendment)
1977 – Maharashtra state legislature reinstates Section 9A via Code of Civil Procedure
(Maharashtra Amendment) Act, 1977.
In the case of Institute Indo-Portuguese v. Theotonio Borges1 the Bombay HC held that in
cases where the applicant seeks the appointment of a receiver, the court shall presume that the
case has been filed within proper jurisdiction and will not look into the question of
jurisdiction. This led to the misuse of the provision, where applicants would file suits for ad
interim reliefs against the government without providing a 60 day notice, because the
applicants were aware that the court was not going to look into the procedural inadequacies.
1
AIR 1959 Bom 275
Section 9A mentioned that in case any applicant files a suit for any interim relief, and if the
other party raises a question of jurisdiction the same “shall” be decided as a preliminary
issue. This meant that the court first has to establish that it is competent to try the suit and
then move ahead with the case. The judgement on the preliminary issue could be challenged
by the way of appeal.
Prima facie, this amendment aimed to correct the misuse of the law and also aimed at not
wasting judicial time. As for example, a court proceeds on a case on merits, and later finds
out that it is not competent to try the suit, it would lead to immense wastage of time.
However, a few problems were created. Firstly, the CPC already had a provision under Order
XIV Rule 2, that if the court feels that in a case with mixed questions of law and fact exist
and decision on the question of law only would be sufficient to dispose off the case, the court
“may” decide that question of law, if related to jurisdiction or bar to suit, as a preliminary
issue. For example, A files a suit against B for non-payment of rent in the city civil court of
Bombay. However, all tenancy suits are heard by the small causes court, hence the city civil
court does not have the jurisdiction in the present case. Thus, it would be a waste of time, if
the court first gets into the factual issues of the parties and decides on the claim of rent and
later realises that it does not have the jurisdiction, thus wasting all the factual decisions made.
In such a case, it would make more sense for the court to first decide the jurisdiction and then
proceed with the matter.
However, the problem with Section 9A and O. XIV R. 2 is that, the order provides for a
discretionary power, where courts can decide on case to case basis. However, 9A makes it
mandatory for the courts to look into the jurisdiction. Therefore it was unclear as to which
was to be relied on. However, in the case of Foreshore Co-operative Housing Society Ltd. vs.
Praveen D.Desai (Dead) thr. Lrs. and Ors, (Now stands repealed, however the enunciation
with respect to the relationship between the two stands valid) it was held that 9A took
precedence over the Order, since it was mandatory in a nature.
What about the cases pending under Sec. 9A at the time the ordinance was passed?
The Maharashtra government provided a few clarifications wrt to sub judice cases:
A few months later the Maharashtra government amended the section 3 of the Ordinance
which brought the amendment and added a savings clause according to which, Section 2 of
the Amendment Act provided that if the court has ordered to decide an issue as a preliminary
issue before the date of deletion of Section 9A, it shall be decided by the court as a
preliminary issue.
Two opposing views were seen in the SC with regards to the interpretation of the word
Jurisdiction under 9A included Limitation.
In the case of Kamalakar Eknath Salunkhe v. Baburav Vishnu Javalkar and Ors.,2 the court
relied on a narrower interpretation of jurisdiction and said that “the word "jurisdiction" in
Section 9A is used in a narrow sense as to maintainability, only on the question of inherent
jurisdiction and does not contemplate issues of limitation”. However, the case of Foreshore
Cooperative Housing Society Limited v. Praveen D. Desai (Dead) through legal
representatives and others3 held that “that the word "jurisdiction" under Section 9A is wide
enough to include the issue of limitation as the expression has been used in the broader sense
2
(2015) 7 SCC 321
3
(2015) 6 SCC 412
and is not restricted to conventional definition under pecuniary or territorial jurisdiction” and
thus limitation was also a preliminary issue.
In order to resolve this, a reference was made to the SC in the case of Nusli Neville Wadia v.
Ivory Properties & Ors4 where it clarified that: “When we consider what colour expression
"jurisdiction" has in Section 9A, it is clearly in the context of power to entertain, jurisdiction
takes colour from accompanying word 'entertain'; i.e. the Court should have jurisdiction to
receive a case for consideration or to try it. In case there is no jurisdiction, court has no
competence to give the relief, but if it has, it cannot give such relief for the reason that claim
is time-barred by limitation or is barred by the principle of res judicata or by bar created
under any other law for the time being in force. When a case is barred by res judicata or
limitation, it is not that the Court has no power to entertain it, but it is not possible to grant
the relief.Thus, the meaning to be given to jurisdiction to entertain in Section 9A is a narrow
one as to maintainability, the competence of the court to receive the suit for adjudication is
only covered under the provisions. The word entertain cannot be said to be the inability to
grant reliefs on merits, but same relates to receiving a suit to initiate the very process of
granting relief.”
Thus limitation is not included in the term “jurisdiction” under 9A but is included under
O.XIV R. 2
1. https://www.mondaq.com/india/constitutional-administrative-law/750618/reversing-
an-old-folly-section-9a-of-civil-procedure-code-1908
2. https://www.thehindu.com/news/cities/mumbai/maharashtra-ordinance-deletes-
section-9a-of-cpc/article24283269.ece
3. https://www.tclindia.in/section-9a-cpc-as-introduced-by-maharashtra-amendment-act-
will-prevail-over-section-9-cpc/
4. https://www.mondaq.com/india/civil-law/875336/whether-limitation-can-be-decided-
as-a-preliminary-issue-under-section-9a-of-the-code-of-civil-procedure
5. Cases Cited in the footnotes.
4
[SLP (Civil) Nos. 31982 – 31983 of 2013]
CIVIL PROCEDURE CODE – QUICK REFERENCE GUIDE
CPC lays down the procedure in which civil suits will be dealt with in India.
Section 9
The expansive nature of the section is demonstrated by use of phraseology both positive and
negative. The earlier part opens the door widely and latter debars entry to only those which
are expressly or impliedly barred. The two explanations, one existing from inception and later
added in 1976, bring out clearly the legislative intention of extending operation of the section
to religious matters where right to property or office is involved irrespective of whether any
fee is attached to the office or not. The language used is simple but explicit and clear. It is
structured on the basic of a civilized jurisprudence that absence of machinery for enforcement
of right renders it nugatory. The heading which is normally a key to the section brings out
unequivocally that all civil suits are cognizable unless bared. What is meant by it is explained
further by widening the ambit of the section by use of the word ‘shall’ and the expression ‘all
suits of a civil nature unless expressly or impliedly barred.
Supreme Court
Facts: The case was with regards to sale of property and the plaintiff had filed a suit for a
temporary injunction from alienation of the property. The court whereby concluded that
Limitation could be included as a preliminary issue as per Section 9A
Held: Limitation is a question of both law and fact, Section 9A allows only questions
jurisdiction i.e. questions of pure law to be decided as a preliminary issue and therefore
limitation is not included and cannot be framed as a preliminary issue under Sec.9A
5
1995 AIR 2001
6
(2015) 7 SCC 321
2. Foreshore Cooperative Housing Society Limited v. Praveen D. Desai (Dead)
through legal representatives and others7 (Partially repealed)
Facts: The suit of the appellant was dismissed by the Civil Judge on the ground that it was
barred by Limitation. The question was considered under Section 9A.
Issues: 1. Whether “Limitation” can be framed as a preliminary issue under Section 9A?
and 2. What provision takes precedence in between Section 9A and O. XIV R.2 ?
Held: 1. Yes Limitation can be framed as preliminary issue, as the word jurisdiction under
9A is broader than the traditional understanding of the term jurisdiction (repealed) 2.
Section 9A being a mandatory provision takes precedence over the Order which is
discretionary.
Facts: Reference to the SC made in order to resolve the conflict mentioned in the above
two cases.
Issue: Whether “Limitation” can be framed as a preliminary issue under Section 9A?
Facts: The petitioner a hospital, filed a suit with two plaintiffs and two defendants at Nasik
with regards to payment under a contract and then filed a suit with one plaintiff and one
defendant in Delhi for the same transaction
Held: Yes, even though the petitioners are different in both the cases, the cause of action is
same thus the second suit i.e. the suit filed in Delhi is barred by res sub judice.
7
(2015) 6 SCC 412
8
(2019) 13 SCALE 620
9
AIR 2004 SC 2339
Short explanation: If a matter is heard and finally decided by a court of law, the matter will
not be adjudged again. Aimed to provide finality to the case.
Supreme court
Bombay HC
10
1961 AIR 1457
11
1965 AIR 1150
12
2003 SCC OnLine Bom 1022
Facts: Petitioner was removed from his post at telephone Exchange, which was
challenged and was later dismissed. After which he filed a petition for accrual of
pension.
Issue: Whether the second petition was barred by res judicata?
Held: No, even if the cause of action is same, the relief is different and both deal with
different issues, the principle of res judicata will not be applicable.
Multiple provisions are applicable which bar an individual from further suit. These are some
examples. Res judicata, Res sub judice, Decrees. O. 23 R.1, etc.
Facts: Both had a dispute regarding a piece of land, the plaintiff however filed an order 23
application to withdraw suit. The withdrawal was challenged by the defendant, however the
trial court ordered costs and withdrew the suit. The HC however reversed the trial court
verdict. The validity of the HC verdict was challenged in the SC
Held: The petitioners have a right to withdraw suit at any given point, and the petitioners
shall be barred from filing the same suit again. However, the defendants cannot object the
withdrawal of the suit, and force the petitioners to prosecute. The defendants have the right to
sue the petitioners after withdrawal.
The Plaintiff’s right under Order 23 Rule 1(1) of the CPC to withdraw suit is absolute and
unqualified and the Court cannot refuse permission to withdraw a suit and compel the
Plaintiff to proceed with it, unless any vested right comes into existence before such prayer is
made
Facts: Though the primary issue in this case was with regards to Debt recovery, the plaintiffs
(who were defendants in original suit) raised an issue with regards to service of summons.
13
(2008) 2 SCC 326
The plaintiffs said that they were not served with the summons, whereas the defendants
claimed that the service was refused by the plaintiffs upon which a substituted service was
done by publication in the leading newspaper Nav Bharat Times. The plaintiffs mentioned
how they did not subscribe to the newspaper and hence were not aware.
Held: Negative. The court said that the summons must be published in any leading newspaper
which is in wide circulation in the place where the defendant resides. Nav Bharat times being
a widely circulated newspaper thus constituted to be a valid summon. The subscription of the
defendants to that newspaper is wholly irrelevant.
Division Bench of Bombay High Court considered the definition of a Court under Section
2(1) (e) of the Act and the definition of an ‘executing court’ and the ‘Court to which the
decree is transferred’ under Sections 37, 38 and 39 of the CPC’. Under section 36 of the
Arbitration & Conciliation Act the award can be enforced under the CPC in the same manner
as if it were a decree. This would be by the ‘Court’ defined under Section 2 (1) (e) as the
Court having jurisdiction to decide questions forming the subject matter of the arbitration.
Thus where the award has been passed in Mumbai the Bombay High Court would be the
Court which must be taken to be the “the Court which passed the decree” under Section 37 of
the CPC. Consequently under Section 38 of the CPC the decree would be executed by
Bombay High Court which passed it or the Court to which it sent for execution. Under
Section 39 the Court would send the decree for execution to another court where it would
have to be executed upon the application of the decree holder. It is held in that judgment that
the award must be treated as the decree passed by the District Judge and therefore, it may be
executed either by the District Judge himself or by the Court to which it may be transferred
for execution under Section 39 of the CPC. There is not much dispute with this provision
also. When the execution petition was stayed by the appellate court and during pendency of
appeal the said court before which the execution petition was pending ceased to have
jurisdiction, the Decree Holder is entitled to file a second execution petition, after dismissal
14
1999 (2) ALD 179
of appeal, the second execution before the newly constituted court after withdrawing the first
execution petition.
Irukula Lalitha Devi & another vs. Ramini Ramappa & another AIR 2016 AP 206
This case held that a “camp court” is not the appropriate court for executing a decree.
Held : While interpreting the provisions of Order XXII Rule 4(3) CPC read with Rule 11
thereof, the Apex Court observed that an appeal abates as against the deceased respondents
where within the time limited by law no application is made to bring his heirs or legal
representatives on record. However, whether the appeal stands abated against the other
respondents also, would depend upon the facts of a case.
Held: That in case one of the respondents dies and the application for substitution of his heirs
or legal representatives is not filed within the limitation prescribed by law, the appeal may
abate as a whole in certain circumstances and one of them could be that when the success of
the appeal may lead to the courts coming to a decision which may be 106 in conflict with the
decision between the appellant and the deceased respondent and, therefore, it will lead to the
court passing a decree which may be contradictory and inconsistent to the decree which had
become final with respect to the same subject matter between the appellant and the deceased
respondent in the same case
Section 75
Held : “It is for this reason that the Supreme Court has evolved the practice of appointing
commissions for the purpose of gathering facts and data in regard to a complaint of breach of
fundamental right made on behalf of the weaker sections of the society. The Report of the
commissioner would furnish prima facie evidence of the facts and data gathered by the
commissioner and that is why the Supreme Court is careful to appoint a responsible person as
commissioner to make an inquiry or investigation into the facts relating to the complaint. It is
15
AIR 1963 SC 89
16
AIR 1966 SC 1427
interesting to note that in the past the Supreme Court has appointed sometimes a district
magistrate, sometimes a district Judge, sometimes a professor of law, sometimes a journalist,
sometimes an officer of the court and sometimes an advocate practising in the court, for the
purpose of carrying out an inquiry or investigation and making report to the court because the
commissioner appointed by the Court must be a responsible person who enjoys the
confidence, of the court and who is expected to carry out his assignment objectively and
impartially without any predilection or prejudice. Once the report of the Commissioner is
received, copies of it would be supplied to the parties so that either party, if it wants to
dispute any of the facts or data stated in the Report, may do so by filing an affidavit and the
court then consider the report of the commissioner and the affidavits which may have been
filed and proceed to adjudicate upon the issue arising in the writ petition. It would be entirely
for the Court to consider what weight to attach to the facts and data stated in the report of the
commissioner and to what extent to act upon such facts and data. But it would not be correct
to say that the report of the commissioner has no evidentiary value at all, since the statements
made in it are not tested by cross-examination. To accept this contention would be to
introduce the adversarial procedure in a proceeding where in the given situation, it is totally
inapposite”
Section 80
This is landmark case in CPC as it deals with many interpretational question and provides
clarity on many areas of CPC
With regards to Sec. 80, the SC in this case explained the need for such provision. The court
noted “The object also is to curtail the area of dispute and controversy. Similar provisions
also exist in various other legislations as well. Wherever the statutory provision requires
service of notice as a condition precedent for filing of suit and prescribed period 24 therefore,
it is not only necessary for the Governments or departments or other statutory bodies to send
a reply to such a notice but it is further necessary to properly deal with all material points and
issues raised in the notice. The Governments, government departments or statutory
authorities are defendants in large number of suits pending in various courts in the country.
Judicial notice can be taken of the fact that in large number of cases either the notice is not
17
AIR 2005 SC 3353
replied or in few cases where reply is sent, it is generally vague and evasive. The result is that
the object underlying Section 80 of the Code and similar provisions gets defeated. It not only
gives rise to avoidable litigation but also results in heavy expense and cost to the exchequer
as well.”
Facts: A group of Construction workers, had payments for their work. When sued, the
defendants raised the issue that the suit was barred by limitation. notice under Section 80 was
served on Defendant No. 1 on 27th February, 2009 and the period of two months had expired
on 27th April, 2009. According to the High Court, the period of limitation expired on 30th
September, 2009 and therefore, the suit which was filed on 24th October, 2009, was barred
by limitation.
Issue: Whether the notice period must be excluded from computing of limitation?
Held: As per Section 15 of the Limitation Act, the court held that notice period should be
excluded from computing limitation if the suit notice is served within limitation. However if
the notice is served after the period of limitation such exclusion may not be given.
Section 96:
Facts: In a present case, on a appeal filed to the HC, the court without adhering to proper
factual analysis and listing down issues for consideration. The petitioners challenged the
appeal in the SC. The court criticised the manner in which the appeal was heard and laid
down the importance of first appeal and its scope.
Ratio: The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court.
The first appeal is a valuable right of the parties and unless restricted by law, the whole case
therein is open for re-hearing both on questions of fact and law. The judgment of the
appellate Court must, therefore, reflect its conscious application of mind and record findings
supported by reasons, on all the issues arising along with the contentions put forth and
pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was
the duty of the High Court to deal with all the issues and the evidence led by the parties
before recording its findings. The first appeal is a valuable right and the parties have a right to
18
AIR 2012 SC 1769
19
(2010) 10 SCC 55
be heard both on questions of law and on facts and the judgment in the first appeal must
address itself to all the issues of law and fact and decide it by giving reasons in support of the
findings
Bombay HC
Held: The jurisdiction of the Appellate Court cannot be made dependent on the fluctuating
valuation of the claim in appeal. The valuation of claim in appeal has relevance only for the
purposes of Court fee. The valuation for the purposes of determining jurisdiction and for the
purpose of Court fee are two distinct factors. They need not be identical or common. The
appellant may restrict or relinquish part of the claim and accordingly pay proportionate Court
fee thereon. The valuation of the suit determines the forum of the appeal and not the
valuation of decree Where both suit and counter-claim are dismissed, the subject-matter of
the appeal would be the plaint. Hence valuation would be as per the valuation of the plaint
and Court fee as payable on the plaint; would be as due and payable thereon. The plaintiff
cannot be made to value his appeal on the basis of the combined valuation of the plaint and
counter-claim, in respect of which he makes no claim. In the case on hand, the appeal filed by
the respondent No. 1 valuing its appeal in the sum of Rs. 38,500/- is a correct valuation and
in view of the amendment to the Goa, Daman and Diu Civil Courts Act, 1965 appeal arising
from the suits of which valuation does not exceed more than Rupees One Lakh, the
appeal lies to the District Court. Therefore, appeal filed by the plaintiff in the District Court is
perfectly tenable.
Section 100,101.
Held the following : “The word ‘substantial’ prefixed to ‘question of law’ does not refer to
the stakes involved in the case, nor intended to refer only to questions of law of general
importance, but refers to impact or effect of the question of law on the decision in the lis
between the parties. ‘Substantial questions of law’ means not only substantial questions of
20
2007 SCC OnLine Bom 194
21
AIR 2008 SC 2594
law of general importance, but also substantial question of law arising in a case as between
the parties. ……..... any question of law which affects the final decision in a case is a
substantial question of law as between the parties. A question of law which arises incidentally
or collaterally, having no bearing on the final outcome, will not be a substantial question of
law. Where there is a clear and settled enunciation on a question of law, by the apex Court or
by the High Court concerned, it cannot be said that the case involves a substantial question of
law. It is said that a substantial question of law arises when a question of law, which is not
finally settled by the apex Court (or by the High Court concerned so far as the State is
concerned), arises for consideration in the case. But this statement has to be understood in the
correct perspective. Where there is a clear enunciation of law and the lower court has
followed or rightly applied such clear enunciation of law, obviously the case will not be
considered as giving rise to a substantial question of law, even if the question of law may be
one of general importance. On the other hand, if there is a clear enunciation of law by the
apex Court (or by the High Court concerned), but the lower court had ignored or
misinterpreted or misapplied the same, and correct application of the law as declared or
enunciated by the apex Court (or the High Court concerned) would have led to a different
decision, the appeal would involve a substantial question of law as between the parties. Even
where there is an enunciation of law by the apex Court (or the High Court concerned) and the
same has been followed by the lower court, if the appellant is able to persuade the High Court
that the enunciated legal position needs reconsideration, alteration, modification or
clarification or that there is a need to resolve an apparent conflict between two viewpoints, it
can be said that a substantial question of law arises for consideration. There cannot, therefore,
be a straitjacket definition as to when a substantial question of law arises in a case.” Quoted
from the judgement.
Supreme Court held that existence of substantial question of law is a sine-qua-non for the 32
exercise of jurisdiction under Section 100 of the Code and entering into the question as to
whether need of the landlord was bonafide or not, was beyond the jurisdiction of the High
Court as the issue can be decided only by appreciating the evidence on record.
22
AIR 1998 SC 2730
a. State of West Bengal & Ors. V. Kamal Sengupta & Anr23
Apex Court held that review on the ground of discovery of new and important matter or
evidence can be taken into consideration if the same is of such a nature that if it had been
produced earlier, it would have altered the judgment under review and Court must be
satisfied that the party who is adducing the new ground was not having the knowledge of the
same even after exercise of due diligence and therefore, it could not be produced before the
Court earlier. The error apparent signifies as an error which is evident per se from the record
of the case and does not require detailed examination, scrutiny and elucidation either of the
facts or the legal position. In case the error is not self-evident and detection thereof requires
long debate and process of reasoning, it cannot be treated as an error apparent on the face of
the record for the purpose of review. The Court further held that the purpose of review is
rectification of an order which stems from the fundamental principle that the justice is above
all and it is exercised only to correct the error which has occurred by some accident, without
any blame.
Apex Court deprecated the practice of filing review application observing that review, by no
means, is an appeal in disguise and it cannot be entertained even if application has been filed
for clarification, modification or review of the judgment and order finally passed for the
reason that a party cannot be permitted to circumvent or by-pass the procedure prescribed for
hearing a review application.
Facts: A judge of the MP HC allowed and passed a judgement and order in a civil application
without providing notice to the opposite party. The respondents argued that even though the
notice was not issued, since the correct position of law has been upheld the petitioner has no
claim in the present case.
23
(2008) 8 SCC 612
24
AIR 2000 SC 3737
25
(2006) 7 SCC 800)
Held: The court held that despite the correctness of a judgement and order, natural justice is a
part and parcel of the justice system and cannot be evaded in any case. And set aside the
order passed by the judge.