JURISDICTION

The power or authority or competence given to a particular court to decide a particular dispute.
consists of 2 latin words—Juris and dicto. Juris means law dicto means to dictate. We can never
have a remedy without proper understanding of jurisdiction. If a wrong court passes an order
in our favor then that would be a nullity. 1st choice of jurisdiction is very imp.

Jurisdiction is not defined under CPC, but there are provisison that deal with how to go about
jurisdiction. At time when jurisdiction is decided, there are 3 factors—

1. The fiscal value of the suit,

2. geographical boundaries, territorial limits.

3. subject matter of the court

When a matter in wrong court comes before us, then rather than waste judicial time of court,
we can file for rejection of plaint.

Org jurisdiction—if that court acts as the court of 1st instance. The court where we approach
directly 1st. i.e. court competen to decide the case and it will always be the lowest court. If there
is a consumer dispute and we demand 50 lakh,k when we file consumer complaint we do it
before the commission where our jurisdiction would be accepted.

Appellate jurisdiction
Court having power to readjudicate a matter already adjudicated by a court. Its the power given
to a superior court to readjudicate something that has already gone before another court.

Foreign Juisdiction
There used to be an act called as foreign jurisdiction act, 1947. Got repealed. Under this statute
Sec 2A defined as any jurisdiction which by treaty, agreement, grant usage or other lawful
means that the cethral govt has for the time bing in or in relation to any area outside India.

Exclusive Jurisdiction

That particular court has exclusive jurisdiction to try a matte rof particular natur. Only a
partuclar court is provided such jurisdiction. Eg—NCLT, NGT etc. in case there is any thing
violated under the statute then we canot go there.

Concurrent Jurisdiction
When there are 2 courts having same power to decide a dispute. it is choice of the party that
helps here. If any offence is committed in army, navy etc, then it can be provided under court
marhsall of the army, he aggreieved party also has the choice to fil case.

Territorial Jurisdiction
Based where geophracial divisions of court. Where subject matter is provided. Geographical
boundaries and limits of each court.

In criminal law we file an FIR to concerned Police Station. 0 FIR where police can register an
offence even in area where the offence is not committed. All things in criminal law woul dbtried
for nature.

Pecuniary Jurisdiction
Based on monetary value of the dispute/ suit, when taken into consideration. we always start
with the lowerst court. 1st pecuniary jurisdiction, lowest court then we check for territorial
jurisdiction etc.

Court have to try all civil suits unless barred. Courts shall have jursidction to try all sections of
civil nature, xmpting those sections. All suits of civil nature can be tried or otherwise such suits
should not be expressly or impliedly barred.

A suit in which the right to property or to an office is contested is a suit of a civil

nature, notwithstanding that such right may depend entirely on the decision of questions as to
religious

rites or ceremonies. For the purposes of this section, it is immaterial whether or not any fees
are attached

to the office referred to in Explanation I or whether or not such office is attached to a particular
place.]

Sec 15
Courts in which suits to be instituted—the suit will be instituted in court of the lowest grade.
We have to take the 1st step.
Sec 16
Suit is to be instituted where subject matter situated. Suits for recovery of immoveable property,
for partition of immoveable property, for sale, foreclosure in mortgage. For determination of
any right or interest in immoveable property-for inheritance. For compensation for wrong to
immoveable property. Also for recover of moveable property actually under attachment or
distrain.

HIERARCHY OF COURTS
Adversorial judicial system—the role of the judge is to be an independent party and it is fact
finding. Judge will hear the arguments on both the sides and will give the outcome based on
facts. Inquisitorial judicial system—is truth finding where judge is part of investigation. These
countries always keep the case open and will never be closed. But in India if a case is filed and
both parties are unable to prove then the case would be dismissed.

Tribunals under Const and power will be given to State. Tribunals problem is that when we
have area specific litigation coming up, which requires specialized judges who have
experiences of industry as well as laws, we have so many tribunals. Presiding officers are
always judicial and also from technical background, where if there is technical term involved,
then these technical persons can assist. We have civil, criminal and tribunals in India.

At time of British we had munciff courts and the presiding person is called as munciff
magistrate. The collector was created for collection of revenue on behalf of the Queen and to
deposit it. Now collectors have administrative as well as judicial powers. Revenue dispute are
where disputes are related to agricultural land and there is dispute as to revenue.

Jurisdiction is prescribed by the State, like territorial jurisdiction.

2nd type of Court est by British is the Court of Small Causes in metropolitan cities. Empowered
to deal with small causes and for speedy relief. The act under which they were inculcated is
known as small causes act, 1882. They decide small cases.

When we look under CPC we have diff types of courts. The smallest court—court of 1st
instance—is known as Court of Civil Judge, Junior Division. Under direct recruitment,
where there is exam. Can try all kinds of cases.
Above this is Court of Civil Judge, Senior Division. There recruitument is by way of
promotion where from junior judge they become senior. HC has the power to increase the no
of civil judge, senior division. The judges even though they have concurrent jurisdiction, they
are known as Additional Judge Senior Division. Only diff b/w civil judge, senior division and
additional judge senior division is the seniority, where the latter is more senior. An appeal from
civil judge junior division will lie to civil judge, senior division.

District Court is the 1 court in that 1 district, in that district this court will be the highest court.
HC can also appoint additional district judges who are known as Additional District Court
Judge. 1 is by way of promotion, where civil judge, senior division is promoted as ADCJ.
Another way is by way of examination, but qualification is that we should have been in
litigation for 10 years and also actively involved in 7 years. They look into this cuz by the time
we are appointed as District Court, we also do administrative control of that district and not
just judicial function. Administrative control is exercised on civil judge, senior and junior judge
and is in case of a complaint received against the judges. The power if very less, but HC also
gives them power to deal with such cases. They have to report on monthly basis as to pendency
of cases, how many cases are left to be adjudicated etc.

When a DC discharges a criminal function it is known as Sessions Court. The governor along
with CJ appoints the district judges, depending upon the quantum of litigation, and size of
district, there can be more than 1 DJ. We can either have direct recruitment or elevation from
lower level. DC exercises its jurisdiction in all type of jurisdiction on any peculiar limit. It has
power of punishing with capital imprisonment, life imprisonment. Special courts appointed,
which are presided by additional DJ, these can be POCSO courts, NDPS courts, family court,
matrimonial disputes. These are presided by somebody who is a district judge. Above District
Court HC is there.

214 of Const states that there will be 1 HC in a state. Depending upon quantum of work and
litigation, we can have more than 1 HC, but they will all have concurrent benches. In Raj when
it was formed, we had diff States. When pact of consolidation of states came, Patel agreed that
for surrender, compromise—Jodhpur is the judicial capital. COnstitement of HC judges can by
promotion from lower judiciary, where DC based on their seniority, after recommendation by
CJ, they are promoted. When lower judiciary promotion happens, they only get 3 or 4 years.
Another way of appointment is elevation from Bar. 1st Judges case and 2nd Judges case. If a
lawyer completes 10 yrs of practice and is above 45 yrs of age, then collegium recommends
for him to be appointment. This name is then sent to collegium of SC with CJI and 4 other
senior most judges. Once SC clears this name, the person is appointed as HC judge. There
should ideally be no interference by executive. There are no set guidelines for this, it depends
on collegium system. Its not a transparent system and that is the criticism of this way.

HC judges have the power to issue writs under Art 226, they are called as preorogaive writ, cuz
they were earlier the prerogative of the King, under 226, whenever there is ivolation of FR. HC
also has power to adjudicate election matters. It also has power to issue civil as well as criminal
contempt. Civil contemp is when there is wilfull disobedience of court. Criminal contempt is
when we undermine authority of court. Also has power to review cases, even if it is suo moto,
where it can take cofnizanc eof that fact.

It also exercises, orindary, appellet, supervisory and administrative jurisdiction over the entire
State. All HC judges are appointed a particular district.

It is also a court of record. A proposition or a law passed will have binding value within all
courts in a State. It has persuasive value in other HC.

SC is constituted under Art 124. Gives power under Const for est of SC. Appointment of CJI
is completely by seniority. It depends on his seniority, where CJ of another State will be sent
as Judge to SC. SC will see how much representation is there from a particular State.

Powers of SC, is everything. It can say, do anything etc. SC has power to issue contempt under
Art 129, power of judial review—striking down any provision or act if it is violative of Const.
SC has power to withdraw any case before any HC or could club any matter. It can appoijt
adjoc Course. Its aso a court of record, and we if we don’t follow the position of SC, then it is
per incuriam.

SEC 9
It is mandatory, where there is no discretionary power given to court, and courts will have
jurisdiction to try all suits relating to civil nature except those which their cognizance is
expressly or impliedly barred. Any suit relating to nature where there is a dispute by wager
cannot be tried. Under Income Tax Act Sec 293 states that if ther eis any proceeding or
assessment, it is done under Income Tax Act, then such lis cannot be filed before civil court.
Min wages act, Sec 34 bars jurisdiction of civil court.

This bar is by way of separate enactment, and that legislatin will put a bar on jurisdiction of
civil courts. A condition is that that bar should operate within its legislative filed and operate
under Const. wherevere the enactment bars any civil suit, that enactment has to have its validity
under the Const. Legislation drafted has to be flown from the Const.

What could be reasonable and arbitrary in Republic of India could be copmeltely diff from
country to country. Various factors come into account when arbitrariness comes into account.

Wetnesdoroy Principle is also known as doctrine where under ideal circumstances how a
prudent person will behave. Whenever reasonability has to be checked it has to be done under
reasonable circumsatnces and not an extra-ordinary person.

There are certain eg of suit of civil nature.

Suit relating to right of worship or religious ceremonies, suit relating to accounts, recovery of
rent, suit for damage of civil wrong, suit relating to right to property, Suit relating to specific
performance, suit relating to marginal rights, suit for office(if there is a dispute with regard to
holding an office. Quo warranto can only be done if there is a public office, whereas this suit
we can do for private office), suit for declaration of title and possession, rights of burial, suit
for right of franchise.

This was noted in the landmark judgment of Kesav Singh Nihal Singh v Custodian General. It
is an appropriation of private rights to corporates. Another judgment which gave meaning to
what is jurisdiction is PMA Metropolitan v MM Marthoma. The expensive nature of the section
is demonstrated by the use of phraseology both positive and negative. The lang used is simple
but explicit and clear. It is structure based on civilized jurisdpuredence thathe absence for
enforcement of rights brings out unequicovcally that all civil suits are cognizable undless
barred. What is meant by it is explained further by whitening the ambit of the section by use of
the word shall and the expression all suits of civil nzgjfd unless by experience is what is called
as juiosdoctopm/ f tjere is an absence of enforcement of iv=civil right.

Shankar Naryanan v K SriDevi. Sc observed that civil courts has primary jurisdiction in all
types of civil matters as per Sec 9 of CPC, unless the action is expressly or impliedly barred.
This bar could be by way of a separate enactment or by adding a provision in the Act or code
itself.

Hridaya Nath Rao v Akir Chandra Rao– jurisdiction is the power of SC tp jear amd deter,ome
the case and adjudicate and exercise judicial power in relation to it.

Express bar and implicit bar.

A suit which is expressly barred is barred by way of an enactment for the time being in force.
There will be an enactment and separate piece of legislation. It will have to hold its ground as
per Const. a competent legislation can barjurisdiction of civil courts with respect ot a particular
class of suits of civil nature provided that in doing so it keeps itself within the field of leslation
conferred on it, and dos not contradict any provisions of the Const. hence a suit is said to be
expressly barred when it is prohibited with the statute.

Implied bar—by way of a prinipcle of law. General princinple of law. Not seen under any
provision. Res Judicata is an implied bar. Had it not been in Sec 11 it could be impliedly
understood where in the absence of any position it still gives right. Need not be mentione din
an act.

To approach civil suots is an inherent right where there is a civil wrong. Right of appeal is not
an inherent right cuz it is by virtue of a staute. Appeal is not a right, it is always a statutory
remedy and if not crated under statutue wecannot repeal it. If a person is aggreieved by a
judgment, decree or order, he can also file an appeal provided that he has to take leave fro m
rthe court. 1st est how we are an aggreiee=ved party. Till corut grants us the leave we will be
party member.

Impled bar can also be that even if suits are barred, from cognizance of civl fourt on the ground
of public policy. Public policy—cannot be seen in any statute, but is barred by implicit method.

Sec 9 covers suits of civli nature, but there are 2 essential prerequisite—these 2 prerequisise is
that there must be a cause of action. It’s a bundle of facts giving right to party to institute the
suit.

Also there has to be an inherent right of the plaintiff to sue the defendant. Inherent right to sue
is to est that we have a right which has been infringed and we have a remedy. Under common
law individuals have inherent right to approach civil court when there is violation of civil right.
SEC 10
The idea is that there should not be 2 parallel proceedings b/w 2 parties on the same issue. If a
suit is instituted b/w 2 parties on the same issue before a competent court, which are directly
and substantially related, then the court will not proceed with the trial of any suit.

It does not say that suit cannot be instituted. It just says that we cannot proceed with trial. It
can be stopped the moment it is brought to the knowledge of the court that the suit is b/w the
same parties or where the issue in recognition is directly and substantially the same. The
subsequent suit will always be stayed by the court, provided the previous 1 is before a
competent court.

If the previous 1 is before an incompetent court (which does not have jurisdiction). Whether
the outcome of the 1st case will have any effect on outcome of the 2nd case. The condition is
that it has to be b/w same parties on same issue, before a competent court. The suit which is
instituted 2nd that trial will stay and will not go on.

The purpose of this:

• to prevent parallel litigations b/w same parties on same issue

• to reduce wastage of judicial time of the court
• is to prevent multiplicity of proceedings
• to avoid conflict in the outcome, or 2 contrary outcome to the same issue.
• To reduce burden of court
• To protect rights of both the parties.
• To avoid unnecessary delay
• to avoid unnecessary harassment to litigants

Certain conditions have to be seen before courts before staying the proceedings:

• There has to have 2 parallel suits going on

• It should not be that 1 suit is decided, cuz then principle of Res Judicata will apply, but
in Res Sub Judice, both proceedings should be ongoing.
• The matter in dispute should be directly and substantially be the same in both the suits.
• If issue is diff then it will not be sub judice.
• Has to be b/w same parties in same title.
• Court dealing with previous suit must be competent to grant the relief claimed in the
subsequent suit.
When it will not apply: if we reverse the conditions

GC Care Centre and Hospitals v OP Care Centre and Hospitals AIR 2004 SC 2339. Ratio is
that only subsequently instituted suit can be stayed and previously instituted suit cannot be
stayed, but if condition is that previously instituted suit must be before court having
jurisdiction.

Reason is to not give an opportunity to give an afterthought or amendment in the suit.

They are also applicable to any proceeding going on outside India, in a foreign court. If we can
est that subsequent court should stay it will stay.

Very small test that court uses—whether the decision in the former suit would operate as res
judicata in the subsequent suit. If it does so then subsequent suit will stay, if it does not then it
will not stay.

SEC 11
Key diff b/w Sec 10 and 11 is that in sub judice both the proceedings must be parallely going
on, but in res judice 1 is decided by the court having competent jurisdiction.

The principle of this suit is seen in 3 legal maxims:

• Nemo debet bis vexari pro una et eadum causa—no man should be punished twice for
the same cause. If 1 person has been punished with or adjudicated with or decision has
been taken on an issue, then that person should not be harassed again.
• Interest reipublicae ut sit fidis litium—it is in the interest of the State that there should
be an end to litigations.
• Res Judicata pro veritate occipitur—a judicial decision must be finally accepted as
correct and final.

Meaning of res judicata means that no court will try any suit or any issue in the suit in which
that issue has been decided b/w that parties to the suit or any other parties under them for whose
rights the suit has already been filed in any court of competent jurisdiction, heard and decided
by that court or any point has been raised in any subsequent suit which is already been heard
and decided by any court of competent jurisdiction.

Narain Chettiyar v Annamalai Chettiar AIR 1959 SC 275. The ratio is that doctrine attachtes
imp to 1 decision to 1 case and prohibits the other. Broadly there are 3 objectives of res Judicata:

• End of legal proceedings

 • Security against subsequent suit
• To give finality to any decision.

These principles were given in Decision of AIR 1981 SC 2198. Gulam Abbas v State of Uttar
Pradesh

AIR 1962 SC 941. Sathya Charan v Dev Rajan. SC held that doctrine of Res judicata is based
on the need of giving final shape to judicial decisions. According to this any case decided once
cannot be reopened for its decision.

5 conditions necessary for applying Res Judicata:

• Subsequent suit must be on the same issue directly or substantially. If issue is diff res
judicata will not apply. RP Gupta v Sri Krishna Poddar AIR 1965 SC 316—in the
subsequent suit the issue involved is not same in earlier suit then principle of res
judicata will not operate.
• The issue must be b/w same parties. both the parties in previous and subsequent suit
must be same. If parties are not same principle of res judicata will not operate. Even if
issue is diff and parties are same. Dwarka Nath v Ram Chandra AIR 1929 Cal 428.
• The parties have claimed having same title in the earlier suit and then the later suit. If
Suit A is filed by a person who is a partner in the firm and later a suit is filed by the
same person as representing the firm, then there is change in title. Title must remain the
same and must not change.
• The principle of res judicata will operate only if the previous suit is decided by a court
having competent jurisdiction. If the suit is decided by a court not having jurisdiction,
then it will not operate as res judicata. If there is Landlord tenant dispute and suit is
before civil court, then it will not have jurisdiction cuz it has to be before Rent Tribunal.
if the suit is decided and decree is given, then if another suit is file din Rent Tribunal
then it can go ahead with it cuz civil court did not have jurisdiction.
• The earlier suit is decided on its merits. Eg—a suit is instituted by A against B, B thinks
of a strategy of dodging the case. B will ask to enter into compromise and settle out of
court. They draw up an agreement and withdraw the suit. B does not comply with
settlement terms, and A goes back to court. B says that its already been before court. It
was withdrawn cuz of adjudication and this will not have res judicata.
2 types of Res Judicata:

• Direct Res judicata—the lis or dispute has been actually decided by the court having
competent jurisdiction. There is a direct actual determination of a dispute.
• Constructive Res Judicata—whoever approaches the court must come up with the entire
dispute in oral. Whenever we approach the court we must raise all the defences, legal
grounds etc, if any thing is left out, then we cannot raise that left out relief or claim in
a subsequent suit, and this is constructive res judicata.
- If we file a suit for money recover and its related only to principal amount, but we
forgot to ask for interest, then we cannot file a fresh suit only for interest. The
remedy for this is that we can amend the suit later on.
- A matte rwhich might or ought to have been made a ground of claim or defence in
a former suit then the issue shall be deemed to have been a matter directly and
substantially in issue in such letter suit.
- If the party had an opportunity that he ought to have taken as a plea as a plaintiff or
a defendant but he fails to do so and if the matter if finally adjudicated then the
decision will operate as a res judicata in resepct of all issues which were taken or
ought to have been taken in the second suit.
- It does not operate as a compromise decree and if the compromise fails it will not
be applicable.
- But it is applicable in Arbitration proceedings. If something fails in arbitration then
it will be barred by res judicata.

ESTOPPEL
If by action or by necessary implication if we do something then we cannot step back from
doing it. Eg—for a construction purpose a notice of tender is put out. 1 of the condition is that
since it is a contruction on agriculture, the condition is that we need tractor and we submit the
bid. If after that the Tender says that they need 5 tractor and 5 trucks, then they cannot change
the eligibility criteria. They are stopped from going back on their word.

Diff b/w Res Judicata and Estoppel

Res Judicata—based upon public policy that litigation should come to an end.
 - A subsequent suit cannot be filed.
- Prevents someone from saying same thing in diff litigation
- Bars the entire trial
- Its ousts the jurisdiction of the court
- Is derived from a judicial decision

Estoppel—law of evidence where a man cannot change his stand once taken

- Estoppel is only for that part

- Estoppel prevents us from saying diff things in same proceedings
- Estoppel only stops or prevents a certain piece of evidence from being taken on
record and rest of trial will continue.
- Stops the mouth of the party from speaking something.
- Emerges from facts or conduct of the parties

SOVEREIGN IMMUNITY – SEC 86

A protection granted to a foreign national or foreign state. India endorsed on 12 Jan 2007 UN
Convention on Jurisdictional Immunities of States and their Properties. But till date India has
not endorsed nor ratified nor has it acceded to any treaty unlike how it is in UK and US where
there is an absolute sovereign immunity granted. We only have a law and we only have a
general principle which is not absolute and we have only a restricted one. It can be seen in Sec
86 of CPC.

Par in Parum non habet imperium—a sovereign is not subject to jurisdiction of another state.

The concept is that if a sovereign function is being discharged then a protection should be
granted that such a person cannot be treated like normal indiv and no case can be brought
against him. This concept is recognized in Sec 86. 1st case law over this is Mirza Ali Akbar
Kashani v The United Arab Republic. There was a contractual dispute and principle was
recognized that when sovereign immunity can be granted and when it cannot be. When
soeverign is discharging commercial or contractual function, then it will not be granted.

A sovereign or a foreign state cannot perpetuate a judicial misdeed. While simultaneously is

resistant to civil proceedings. However, there are certain special laws and wherever these laws
are applicable, the sovereign immunity will not be granted. Protection under Sec 86 is a general
protection granted. The Carriage by Air Act is a special law, Consumer Protection Act.
Industrial Disputes Act. If the employer is a foreign national and there is a dispute, then it
cannot be raised cuz it’s a pure employer employee relationship.

Rex Non Potesq Picarre—the King can do no wrong. He is always protected. But this protection
will not be granted if it is a commercial or contractual thing. Ethiopian Airlines v Ganesh
Narayan Sabu AIR 2011 SC 3495—wherevere there are certain commercial matters b/w
sovereign bodies and other parties this immunity cannot be upheld.

Sec 86(1)—there is a blanket protection where no foreign state can be sued, but it says except
with the consent of the Central Govt. which is certified them in writing. If we obtain the
certificate then we are free to sue them. However, if it is a purely tenant matter of immoveable
property, then we don’t require the certificate.

(2)—talks about the conditions when the certificate can be granted.

- Where the foreign state has instituted a suit in the Court against the person desired to
be sued, then, certificate can be granted.
- If the foreign state trades for itself or another within the local limits of the jurisdiction
of the Court.
- If the foreign state is in possession of immoveable property within those limits and is
to be sued with reference to that property. Just holding property does not give us right
to sue, but if there is dispute in terms of that property per se then certificate can be
granted.
- If the foreign state has expressly or impliedly waived the privileges of this section.

Harbhajan Singh Thalla v UOI—the principle was that reasons and rpinciples of natural justice
are to be followed while granting or refusing such consent. If we apply to central govt that we
have to sue such foreign nation and if such certificate is refused then that action of central govt
is subject to judicial review.

The purpose of making government approval a legal condition for bringing a suit against a
sovereign body is to ensure that the parties with valid claim are not left without a redressal and
the sovereign states are not subject to baseless and frivolous litigations. This condition puts up
2 reasons- where there is infringement of somebody’s right but also that the foreign national
who has come to India should not be harassed by frivolous or baseless litigations.

Sec 86(3)—if we obtain a decree, that decree cannot be executed unless we have a certificate
in writing from Central Govt.
(4)—merely talks about who all the immunity will be extended to. So many countries which
have a democratic setup. Even if it’s a King, ambassador, high Commissioner, any person who
by Central govt has specifically stated that that person will b egranted sovereign immunity.

(5)—talks about these people cannot even be arrested.

(6)—this condition of granting certificate is not a discretionary power of the State and it is
exercised judicially. This would be subject to judicial review.

Kenya Airlines v Genevai B Keshwala AIR 1998 Bom 287—implied waiver. Legal proceeding
going on for many years and after engaging in legal battle, Kenyan Airlines wanted to raise
sovereign immunity, but HC said that through their action through many years they have
impliedly waived it and cannot raise it. They did not raise it for 69 years.

Express waiver could by way of any condition or treaty.

Syrian Arab Republic v AK Jajodia 2005 Vol 116 DLT 444—sovereign immunity should not
exist in a situation concerning rental disputes in immoveable properties. Wherever there is a
dispute wherein it is a rental property. The immunity of sovereign thing will not be granted.

Under civil law, bar on proceedings

- If there is an express bar on civil courts.

- If a same issue is pending before a court- Sec 10
- If the issue is already decided by the court-11
- If we have to file a civil suit against a foreign national
- Bar on foreign judgments

Sec 2(5)—a foreign court is a court situated outside India and not est under authority of Central
govt.

SEC 13
A foreign judgment shall be conclusive as to any matter adjudicated b/w same parties or b/w
parties under whom has the same title. Exceptions—

◼ when it has not been pronounced by a Court of competent jurisdiction. Territorial,

pecuniary jurisdiction. We also talk about foreign court whether that foreign court is a
recognized court.
- It’s a principle that a judgment or order pronounced by a court which does not have
jurisdiction is null and void. The judgment must be by a court competent both by law
of the State under which it is constituted and under international law if not, when it will
not be a conclusive one that part of the order will not be given any legal sanctity.

◼ Where it has not been given on merits of case.

- If a case is dismissed if prosecution does not want to argue then it is not on merits of
case. Otherwise if defendants do not turn up, then court will proceed ex parte and this
is something that is not done on merits. If conditions are put and suit is dismissed for
non-compliance of the conditions then it is not on merits of case.
◼ Where it appears on the fact of proceedings to be against or on an incorrect view of intl
law
- Prima facie if we can est that the judgment is on an incorrect view of intl law or it
refuses to recognize laws of India.
- This is diff from 13(f) cuz (f) is about a breach of any law in India. Refusal will always
be a reaction to something. Breach can be by itself. If we refuse something, then
defendant or claimaint says that we have a remedy under this law but plaintiff refuses
to recognize that law. 13(f) talks about breach of any legal principle. Its not necessary
that we should raise that ground.
◼ Where proceedings of judgment are opposed to natural justice.
- We have to prove that court acted unbiased.
- The compositin of the court should have been fair and acted in good faith. Impartial
compositin of the court.
- Should have given reasonable notice to the other party.
- Affording adequate opportunity to present its case.
- When the principle of natural justice was not followed then it can be challenged and
will not be taken as conclusive determination. When we take the plea we challenge the
proceedings of the case and not the lis or dispute.
◼ Obtained by fraud
- Sathya v Teja Singh. Husband played fraud with the court and wife challenged it saying
that court did not have jurisdiction and it was through fraud and hence was a nullity.
- Denning LJ. No judgment of a court, no order of a minister can be allowed to stand if
it has been obtained by fraud.
 - Somebody said: It is formally est that a foreign judgment is impeccable for fraud in the
sense that upon proof of fraud it cannot be enforced by actions in England.
◼ Sustains a claim founded on a breach of any law in force in India.
- If we can est that finding of foreign court is in breach of any laws enforced in India then
such determination will not be a conclusive determination.

How 1 person can submit himself to a foreign jurisdiction:

- Where the person is a subject to a foreign country in which judgment has been obtained.
Even if we don’t live in another country we can still be subject to that jurisdiction. Our
physical presence is not required.
- Where he is resident of foreign country when the action was commenced and summons
was served
- Where the party after receiving summons voluntarily appears before that court
- By express agreement b/w the parties—(arbitration)

A foreign judgment which is obtained by a foreign court will be Res Judicata if it is passed b/w
same parties or if it is conclusive determination of lis b/w parties. if these parameters are met
then finding of foreign court will operate as res judicata in subsequent proceedings.

SEC 14
Narasimhao Rao v Venkata Lakshmi—SC held that mere producing a photocopy of a judgment
will not be sufficient and it is either a certified copy or a certificate from the registrate of thea
t court that we certify that it is a valid judgment.

Once we have such an award we have to execute it if defendant does not comply with the terms.

JOINTER OF PARTY

Who all would be the litigant in a particular dispute? at times there could be an instance where
certain persons had to be the party but it is not.

When a suit is filed there are certain general rules—

- Who will be the parties?

- what is the subject matter of dispute?
- Cause of action.
- Relief being claimed
Order 1 gives parameters under which there can be more than 1 plaintiff and more than 1
defendant. In 1 suit more than 1 plaintiff or more than 1 defendant.

AIR 1973 Bom 358 Krishna v Narasimha Rao—held that pre condition arises as to joinder in
1 suit as the plaintiff if the common question in law or fact arose b/w the plaintiff. There can
be more than 1 plaintiff in 1 suit if there is a common Q of law or fact. If there are certain
individuals occupying a certain place of land, and suddenlty they receive notice that structure
would be demolished. There is a common Q of law, whether all of them are encroachers or not.
All these plaintiffs who were occupying the land can be joined in 1 suit against the govt.
Whether they are illegal occupants or not? They have the option of either individually filing
suit or can join in suit.

2 conditions—the relief arises out of same act or transaction.

- Common Q of law or fact should be there and in such case plaintiffs can come together
and can present a suit jointly.

Its not a hard and fact rule but IT IS PREFERRED. The object of this is to—to avoid
multiplicity of litigations

- To provide speedy trial

- To secure the time
- Quick disposal of matters

This is why we have joinder.

There could be joinder of plaintiffs or defendants.

ORDER 1

Rule 1—plaintiffs—any right to relief arising out of same transaction.

Court also has power to order separate trial. If for some reason they should not be tried jointly,
then they can be tried separately—Rule 2 of Order 1. If a particular issue deviates from the
cause that it is of such a nature that it should be tried separately then court will tell us either to
present matter separately, or court will order it to be tried separately.

Under order 1 Rule 2 it is the prerogative of the court to remove a person if it feels that his
presence will be detrimental to the court.
If a defendant is not joined properly then it could be detrimental to the cause at hand. Whenever
we present a plaint the 1st thing is the relief being claimed. What we rae seeking from the court.
On the basis of this, the Q arises as to who can give us that relief, ONLY then will we know
who should be the other party. We must know who is entitled to give us that relief. That party
will be the defendant.

When a particular relief is claimed against a particular party, that party is called as a necessary
party. It is necessary for the adjudication of that dispute. There are 2 types of parties under
CPC—necessary and proper party.

Necessary party—which is necessary for adjudication of a lis and in the absence of which the
relief being claimed cannot be granted. If he is not a party, then that relief cannot be granted.

Proper party—is not necessarily being added but its presence will either expedite the court or
it will assist the court in deciding the controversy.

Notice of demolition of House, we file suit. 1 party is Commissioner of Municipal Corporation,

also Electricity Board and Water Board. We say that we have valid electiricy and water
connection. They can corroborate that we have such a valid connection, and will expedite the
process and will assist in real determination of the dispute.

Benares Bank Ltd v Bhagvan Das—Full bench of Allahabad HC laid down twin test as to how
to determine if it is necessary party or not:

- There is a relief claimed against that party, in respect of matters involved in the suit.
- The court must not be in a position to pass an effective decree in absence of such power.

1974 Vol 4 SCC 335 General Manager South Central Railways Secundarabad v AVR
Siddanthe—there is a suit filed against a particular policy decision. Administrator head of
railways was made party to suit. Outcome of suit would affect all employees of railways,
therefore they have to be made necessary aprty. But SC said that outcome may be to another
party, but for determination of a lis they are not a necessary party, but could be a proper party.

A proper party is 1 which assists the court in adjudication of a lis against whom no relief is
claimed. In absence of necessary party, no relief can be granted and suit is also liable to be
dismissed. Proper party enables the court to adjudicate the dispute completely and effectively.

Court can add any party if it feels that it should be added for proper adjudication of the suit.
Anil Kumar v Shivanath 1995 3 SCC 147—court observed in this case that the object of bringin
all the necessary parties on record in the dispute is to avoid multiplicity of litigations and
inconvenience.

What happens in case we have missed out a particular party and it is a necessary party. This is
a case of Non-Joinder of Parties. If we made somebody wrongly as a party who is not a
necessary party, then it is Mis-joinder of Parties. Mis-Joinder can be corrected at any point of
time and it is not fatal. A Non joinder is very fatal cuz at the time of granting of relief, and
court comes to conclusion that the party who is entitled to give us that relief is not a party it
could be fatal.

Order 1 Rule 3—who all may be joined as defendants.

Court also has power to strike down any person as defendant if he is not needed.

Order 1 Rule 9—in case there is non-joinder or mis joinder the suit shall not be defeated, but
it will decide according to who all are there before the court. It will not defeat the suit. It will
not apply in case of non-joinder of necessary party.

Diff b/w Necessary Party and Proper Party

Necessary Party—against whom a relief is sought

- In absence of which no degree or effective order can be passed

- In case of non-impleadment of necessary party, suit is liable to be dismissed
- A decree passed in absence of necessary party is non executable—thus no effective
relief

Proper Party—against whom no relief is sought

- In its absence effective order can be passed but its presence is necessary for final and
complete decision.
- In case of non-impleadment of proper party suit is NOT liable to be dismissed
- A decree passed in absence of proper party cannot be reversed, varied or remanded,
unless conditions as provided in Sec 99 are satisfied

ABATEMENT
To eliminate that ceases to exist or discontinued. If there is a suit going on and 1 of the parties
dies or 1 of them incapacitated to participate in the lead proceeding, by insolvency, then
that suit will be abated.
But If the cause of action still survives then the legal representative of the party will step
into the shoe of plaintiff or defendant and suit will continue. The cuase of action should
survive, the right to sue must exist.

It must be by leave or application of the court. In a situation where the suit is brought for
something which is a personam right, which only the defendant in person could have performed
then legal representative cannot be substituted. In an abetment case the right to sue must exist.
There cannot be a suit against a death party. If the cause of action does not survive or ceases to
exist the suit will be called as abated. The legal representative will have to participate in the
proceedings.

Cause of action—bundle of material facts giving right to a party to institute a legal action. 1
which is claimed by plaintiff and has to be proved by plaintiff. In a contract of sale of Goods,
where we have to send certain goods, the cause of action could be place where contract was
executed. Another place would be where the performance was supposed to be done. Where the
consideration is supposed to be paid.

The cuase of action is the bueaty of advocate to show how and where he has chosen the forum.
If there is no cause of action before a competent court, that suit will be rejected for lack of
causation. ITS VERY SUBJECTIVE.

ORDER 8
Written statement—within 30 days

Rule 6
Set-off—to adjust or eliminate to settle the org claim. Its adjusting the amount. It has to be for
a money recovery suit, where money is involved.

Where for a suit for recovery of money, the defendant claims to set-off against the plaintiff
demand, any ascertained sum of money, which can be calculated or is specific, it should not
exceed the pecuniary limit of the Court, the parties have to be in the same nature and title in
the written statement also, and the particulars of the debt should be presented in the written
statement.

The written statement will have the same format as plaint.

This evolved through judicial innovation, where plaintiff and defendant should have the
opportunity to present both their demands and contentions.
Rule 6 is incorporated in CPC to provide an option of Setting Off. Is a claim against plaintiff

UOI v Karan Chand Thapar and Brothers—SC held that concept of set-off is defined in Blacks
Law Dictionary as a debtors right to reduce the amount of debt by any sum which the creditor
owes to the debtor or counterbalancing the sum owed by the creditor which means that the
cross claim or the claim which the debtor had against the creditor will reduce the amount of
debt as well as sum of the credit.

The parties must be same character and recovering sum owed to each other. No 3rd party will
have a right to file a set-off.

Set-off are of 2 types—Legal set-off and Equitable set-off.

Legal Set-off—given in Order 8 Rule 6(1).

- Can be claied as a matter of right. If we say that defendant owes particular amount we
can claim it as a matter of right
- The amount should be ascertained and within the pecuniary jurisdiction of the court
- The court fees is payable
- Limitation period governs in a legal set-off

Equitable—comes from equity justice good conscience. Something which is not ascertained
and we leave it open to be determined. Based on judicial interpretations and pronouncements.

- Granted on facts of case and discretion of the court.

- Is unascertained and is left to discretion of the suit.
- Court fees may be on the discretion of the court.
- Limitation period is complete discretion of the court.

6A talks about Counter Claim—could be in a situation where our demand is not just in
monetary terms. It could be any claim. If we talk about giving possession of property in counter
claim. It is not an ascertiained amount. We cannot set-off the liability with this property. But
in Countery Claim we can demand that the property which he promoised to deliver to us was
not done so and it can be adjusted.

Jayanti Lal v Abdul Aziz—related to recovery of rent amount from the petitioner and the
petitioner wants to recover the amount payable for repair of the House. Court said that it is a
fit case for a set-off, i.e. legal set-off.
Jitendra Kumar v PLS General Finance Company Ltd.—the diff b/w legal and equitable set-
off. A legal set-off can be claimed as a matter of right. An equitable set-off cannot be claimed
as a matter of right and is left to the court as to fact situation.

Coutner claim was recommended by Law Commission of India in 1976. The object sought to
achieve was to avoid multiplicity of litigations, in that how many plaintiffs or defendants are
there, if they have any claim against each other, it can all be decided together. Whatever inter-
dispute they have against each other.

Set-off is considered as a cross suit by the defendant.

Diff b/w Set-off and Counter Claim

Set-off—Order 8 Rule 6.

- Give opportunity to the defendant to set up his claim for recovery of money from the
plaintiff’s claim. Its to adjust any amount towards the org claim.
- Can occur only in a money recovery suit.
- Scope is very narrow- cuz only for money recovery
- Genesis of set-off is based upon principle of Equity
- When a set-off is being claimed by defendant the rules relating to written statement are
followed, all such rules of WS will be applicable when we claim set-off.

Counter Claim—Oruder 8 Rule 6A.

- To avoid multiplicity of litigations.

- Can be claimed in other natures of claim—like removal of property, possession,
injunction. All such claims related to that dispute can be brought for set-off
- Scope is much wider. Not just restricted to money recovery.
- It’s just like a suit filed by the defendant—based upon legal provisions
- When we file a counter claim, the rules as to how a suit is instituted will be applicable
here.

Mazhar Hussain v Riddhi Lal 1885 ILR 7 Allahabad 230—Sec 15 SC said that there are 2
objects to be achieved when approaching lowest court:

- To reduce burden of higher courts

- To afford convenience to parties and witnesses who may be called for examination. We
have to chose 1 which is closes to our area.
If the property is situated in other jurisdictions, within local limits of jurisdiction, moveable
property, and other suits. Sec 16-20.

Sec 21—3 types of objections a person can take—(1) regard to place of suing

(2)—value of suit

(3)—regards to local limits of jurisdiction.

Once the issues are framed and evidences are disclosed by both the parties on ly then trial
commences. After this prelimary objections with regard to jurisdiction of the ocurt if it comes
cannot be taken, it HAS TO BE TAKEN AT THE 1ST INSTANCE. If we have not taken it at
the preliminary state, then if we can satisfy it at the appellate court, then court may allow us to
take it.

Sec 21A—a fresh suit cannot be filed against a decree on the ground that the court did not have
jurisdiction

22—if a suit can be filed at diff courts, then on the reason for application by either of the party,
that proceeding can be transferred to another court. Mostly seen in Matrimonial Dispute. any
of the party would say that is not a competent court. There would be no cause of action there.
It could be transferred to another court. Either of the party by application would request to the
court that matter would be transferred.

23—where several courts having jurisdiction are subordinate to same APpeallte Court, and
application under 22 shall be made to Appeal Court. If these courts are subordinate to diff
Appellate courts but to the same HC hten the application can be made to HC.

24—whenever an application for transfer is filed—HC can either transfer, withdraw, or doing
that withdrawal it can try to dispose it off, can retransfer the same, transfer it for trial to any
Court subordinate.

25—gives power to SC when there are 2 matters ending before diff HC. Then an application
can be made to SC, that all matters transferred to SC itself or to a HC. In Rupu Sharma case.

ORDER 1 RULE 10
(1)—Suit in name of Wrong Plaintiff. Where suit has been instituted and during trial it gets
known to court that real plaintiff is not there and that mistake is a bona fide one the court may
order that it gets substituted. 1st court looks into territorial and pecunirary jurisdiction, whether
there is a cause of action. Will look into cause of action. This is known as locus standi. Look
at jurisdiction, cause of action and locus standi. Court reaches conclusion that the person does
not have a locus standi, and if it is a bona fide mistake court can order that the real person be
brought in.

(2)—sometimes it may be needed that somebody has to be added or removed as a party. It can
add or remove anybody as a plaintiff or defendant.

READ THIS SECTION

INSTITUTION OF SUIT
Given in Sec 26

If we do not file affidavit with plaint then it will be a defective plaint and will be returned to
us. If there is a dispute with regard to state employee it is SAT, where they have their ow
nprocedure.

(2)—we have to prove that these are the facts in the affidavit.

ORDER 2
Talks about rule of res judicata.

Rule 1—Frame of Suit—it has to have all grounds which exist for final decision of the subject
matter and we do not leave out anything. If there is a dispute b/w landlord and tenant, there
could be multiple defaults on part of tenant, and for adjudication of the final relief, all grounds
of the facts must be put in so that all possible grounds for relief are taken.

Rule 2—Suit to include the whole claim—the plaintiff can include the whole of the claim,
but a plaintiff can relinquish any portion of the claim in order to bring it within the jurisdiction
of the Court. If 1 cause of action gives rise to multiple reliefs, then he can chose which relief
to get, cuz if we combine all reliefs, it may exceed the pecuniary jurisdiction of the court.

(2)—If we have relinquished any part of his claim intentionally then he cannot afterwards sue
in respect of that claim.

(3)—we can also take leave of the court to ask for permission to raise the claim later on that
we have omitted.
Rule 3—Joinder of Causes of Action—a plaintiff with multiple causes of action against the
same defendant can unite such causes of action in the same suit. AIM is to reduce multiplicity
of litigations.

(2)—whenever these causes of action are joined—we are increasing the amount of relief that
is claimed—the value of the suit increases and this will increase the pecuniary jurisdiction of
the court.

Rule 4—only certain claims can be joined for immoveable property:

- Claim for mesne profits

- Damages of breach of any contract under the property
- Claims inw hcih the relief sought is based on the same cause of action.

Rule 5—no claim against an executor, administrator or heir can be joined. [an executor is
mostly on behalf of a jurisdic person. He executes something.] [administrator is someone who
administers]

Rule 6—power of court to order sepeate trials—where another court feels that it is not
convenient or may embarrass it, then that particular relief will be taken up separately in another
trial.

Rule 7—Objections as to misjoinder—all objections as to misjoinder of cause of action will

be taken at earliest possible opportunity and if that is not taken, then it deemed that the objection
has been waived.

REPRESENTATIVE SUIT
Where a suit is filed on behalf of several persons and has same interest in the suit. The general
rule in CPC is that all persons who have a right or claim, all those persons are required to be
party to the suit. Everybody need not be a party to the lis, 1 people can represent them.

AIR 1955 Mad 281 Kotia Gounder v Velanti Gounder—outcome is that object of rule of
representative suit is to afford convenience in a suit where there is a community interest among
large number of persons so that a few should be allowed to represent. In other words the object
for which this provision is made is to facilitate the decision of Q in which a large body of
persons are interested without recourse to ordinary procedure otherwise there will be in-
separable practical difficulty in the institution of suit, where each individual has to maintain an
action by a separate suit.

If a nuisance affects rights of community at large and 1 person approaches the court against
that nuisance. To eliminate the practical difficulty of every individual coming, a representative
suit can be filed.

Certain Conditions: Order 1 Rule 8 allows this:

- To reduce difficulty of court.

- Where there is same cause of action, relief, defendants are same, only plaintiff name is
diff

Order 1 Rule 8 –Numerous persons having same interest in 1 suit

we need permission of the court for this, its compulsory.

Even the court can direct the 1 person on behalf of the rest to file the representative suit.

(2)—the court after giving the permission should give notice of such institution of suit to
persons so interested or if it is not possible to do so to the plaintiffs, then it can give notice by
way of public advertisement.

(3)—anybody for whom the suit is instituted if he wants to join, he can apply to the court.

(4)—kind of protection, where if a representative suit has been instituted on behalf of

community at large, then no compromise can be instituted b/w parties, cuz that will have effect
on community at large. Without hearing every party, no compromise can be entered upon.

(5)—if a person suing in such a case and if he does not proceed with due diligence in the suit
the Court can substitute that person with another person having same interest.

(6)—the decree passed here will be binding on rest of the parties on behalf of whom the suit is
instituted.

Once this decree is passed all the persons whose right is affected they cannot come and say that
they don’t stand by the judgment of the court, cuz they were given an opportunity to contest it.

Krishna Vasu Dev v Shareef 2005 12 SCC 180—READ THIS—suit filed and when trial
happened, application filed under Order 1 Rule 8, and that is should be made a representative
suit. Trial Court and HC rejected that such an application cannot be made after trial has
commenced. SC held that under order 1 Rule 8, there is no timeline given as to when a suit
should be made from ordinary suit to representative suit.

Trial Court should have heard the application on its merits without regard to its stage with
which it was filed. Stage is immaterial. This is there to afford convenience, so any stage is fine.

Kalyan Singh v Choti AIR 1990 SC 397—There are 4 essential conditions to fillilng of
representative suit:

- There should be numerous parties, cannot be restricted to just 4 or 5. (Has to represent

community)
- Same interest of all parties. Plaintiff or defendant must have direct interest also.
- There should be necessary permission from the court. Without such permission
representative suit cannot be filed.
- Notice to all parties, cuz rights of every individual will be affected, so it has to be
brought to their notice if everything is properly adjudicated.

INTERPLEADER SUIT
Interpleader suit is an exception in which rights of 2 defendants are interpleaded among 2
persons are claiming and the person who is approaching the court does not have any right and
the only right he has is of cost and charge.

If there is a property and it is in possession of A. A is having a charge on the property(like

mortgage, he isn’t the owner, and can only sell it in limited condition). 2 persons X and Y are
claiming their ownership right on that property. This is an eg where A can approach the court,
asking the court to determine who is the owner.

A has no right on property, his right is only to the extent of charge and he approaches the court
to determine who is the real owner. It is to adjudicate the dispute b/w 2 people.

Interplead—means to litigate with each other to settle a point concerning a 3rd party.

In ordinary course there are 2 parties—plaintiff and defendant. 2 defendants who fight for a
claim over a particular good, debt or chattel the plaintiff in such suit usually do not have any
real interest in the subject matter of the suit and institutes these suits to make sure that the
property in dispute is put in the custody of actual owner.

As per Halsbury’s laws of England, “where a person is under liability in respect of a debt or in
respect of any money, goods or chattels and he is or expects to be sued for it in respect of debt
or money or those goods or chattels, by 2 or more persons making adverse claim thereto he
may apply to the court for relief by way of interpleader”.

Main object of interpleader suit is to get rivals claim adjudicated. It is a process wherein the
plaintiff calls upon the rival claimants to appear before the court and get their respective claims
decided.

Under CPC Sec 88 is substantive part which deals with interpleader suit and Procedural part is
there in Order 35. READ THIS.

SEC 88
Where 2 or more persons claim to the other the same debt, from a person who has no claim to
the

Certain conditions for interpleader Suit:

◼ There must be some debt, money or property, moveable or immoveable.

◼ 2 or more persons must be claiming it adversely to 1 another.
◼ The plaintiff does not claim any interest in it except the charge or the cost and is ready
to pay or deliver to its right claimant.
◼ There must be no pending suit going on, in which the rights of the parties can be
adjudicated.

Procedure given in Order 35

Rule 1

Rule 2
Payment of Thing Claimed into Court.

Where if there is a property which can be submitted to the Court the plaintiff may be required
to place before he can be entitled to it.

Rule 3
Procedure where defendant is suing plaintiff. If there is an interpleadery suit and
simultaneously there is another suit filed by defendant to plaintiff, then proceedings against
plaintiff will be stayed in the other suit and interpleader suit will continue.
Rule 4
Procedure at 1st Hearing. Court may declare the plaintiff to be discharged from all liability to
the defendants, award him his costs and dismiss him from the suit. OR if it wants for justice
and convenience it can retain all parties until final disposal.

At the 1st hearing the Court feels that any admission of the parties, they can adjudicate the title
to the thing claimed right then.

If it is being contested fiercely it can direct any issue to be tried or can add any plaintiff.

Rule 5
Agents and Landlords may not institute interpleader suits. Agents cannot sue principal and
tenant cannot sue landlord.

Rule 6
Charge for Plaintiff’s cost. If the suit is properly instituted, the Court may provide for cost to
be provided to original plaintiff.

ADR

Sec 89

In 29th Law Commission Report, Justice Balibath recommended Alternate dispute to come
back. ADR was recommended. It was removed at the time of British. British did not want any
ADR mechanism and wanted control of courts in their hand. Intention was to have separate
parallel mechanism by which disputes can be settled other than through ordinary manner. These
matters are decided extra-judicially. Decided outside the court. It can be any type of matter—
civil, contractual, personal injury. But it cannot include any crime against IPC.

Intention was to make ADR popular so that people willingly chose ADR mechanism.

Through CPC amendment 1999, and became effective from 1 July 2002.

89 says that where it appears to the court to have an element of settlement. It must come to the
knowledge of the court that there could be a scope for settlement, and it should be acceptable
to the parties. We cannot mandate them to do it. They should agree that they can send the matter
to mediation. If during the mediation, they don’t feel like using mediation, they can say that
they want to go to ordinary process of courts.
It will formulate a form of settlement. Rather than sending entire dispute to mediation, court
can send just a part, or a small issue to mediation. It could frame term of settlement and give it
to the parties.

Project Topic

1st Chap—Introduction- max 2, 3 page.

2nd Chap—Research methodology—scope, nature of research-primary/secondary. Source,

limitation we have.

Here onwards we divide the project into chapters.

3rd chapter should be what is PIL-introducing the subject

4th Chap—Conditions, Requirements of PIL

5th—Judicial analysis

6th—diff b/w PIL and other litigations and our analysis.

7th—Conclusion.

30-50 pg.

Advantages of ADR

◼ Less time consuming

◼ Reduce workload of the court. To eliminate it out of court premises.
◼ It promotes realistic, mutually agreeable solutions.
◼ It is cost effective. If we go in a civil dispute to a court, we have to pay court fee, engage
a lawyer, therefore it is costly.
◼ Flexible in nature—strict principles of CPC aren’t followed
◼ Amicable, congenial and peaceful.
◼ Efficient, simple and fast.
◼ Confidentiality is maintained. Cuz courts are said to be public places for everybody.
But when it is in a closed room, there is confidentiality.
◼ No delay.
ARBITRATION
Parties have to agree that in case they have a dispute they will arbitrate. Either through contract
when it was entered. Party A will serve a notice to B and they will say that it will be solved
through arbitration. If B agrees to that, then arbitration will start. If there is a failure to agree
on an arbitrator, we file Sec 11 of ACA, we ask the court to appoint an arbitrator. The Judge
would look at: (1) whether there is an arbitration agreement or not (2) whether there is a
proposal by any party to appoint arbitrator. (3) whether there is an agreement in terms of the
name suggested. There would be a panel of such arbitrators. It’s the discretion of the HC judge
who they want to appoint.

Arbitrator should be an independent or neutral party. In case he is biased or not independent

Sec 12 deals with removing the arbitrator.

Once the dispute is referred to arbitration and the award is final, it can be challenged on only
limited grounds. Challenged with Sec 34. Once the award is passed, the award is final and only
limited ground is Sec 34. How it is in violation of Public Policy?

CONCILIATION
Informal than arbitration process. That person is called as conciliator. His job is to mutually
settle the dispute. tell both the parties with regard to pros and cons of dispute and they can settle
the matter.

In conciliation the outcome is not binding, it cannot be forced upon parties. if we don’t agree
to settlement, we can walk away any time. The finding of outcome of conciliator is not binding
unless we agree to it.

MEDIATION
It is resolving the dispute with a person who is the mediator, he is also a 3rd party, mutual and
not biased. It is mostly arbitration and conciliation and without interference of court. Matter
has not reached the court. Mediator is always appointed by court.

Informal process. In arbitration we have to file statement of claim, just like how a civil dispute
happens. Arbitrator will deal with each issue.

In Conciliation and mediation, court will frame the issue which they want to be framed.
LOK ADALAT
Under Legal Services Act, we have Lok Adalat constituted. They are est for specific areas of
dispute wherein a choice is given to parties where if a dispute is there in specific areas they
have the choice to go to Lok Adalat also. Once we submit ourselves to LA and an award has
been passed, it is binding on parties. But this can also be challenged. They are permanent LA
and their officers are retired judges.

Matters relating to Motor Vehicles Compensation Act comes here mostly. If we are not happy
with quantum, then we can challenge the award. Usually these matters are only of calculation
matters and can be quickly disposed.

SUIT IN PARTICULAR CASES

SUIT BY OR AGAINST THE GOVT

Starts from Sec 79. The major litigator in courts are the govt. cuz of inaction, or illegal action
of govt, suit is filed.

We cannot institute a suit unless a legal notice has been served. The contens would be that who
is the plaintiff, the cause of action, the particulars of the plaintiff, the relief that is being claimed,
where he is residing, and that such a notice has been given. After expiry of 2 months we would
file a suit, if the particular relief has not been fulfilled.

Sometimes this govt officers don’t accept this, so we sent it by registered post. The day that it
is delivered, or when it has been left at the office. A suit cannot be instituted without this notice,
otherwise they will raise preliminary objection that Sec 80 was not complied with and rejected
under Order 7.

It has to be in relation to public function of the concerned officer. He must have been acting in
his official duty and not in private function.

If it’s a dept of govt, we have to address it to the Secretary of the Govt. in case of Railways, it
has to be General Manager of Railways. If it is J&K then it has to be administrator. If it is State
govt, either district collector or secretary to the govt.

If there is an emergency, and we need instant relief, what do we do? If we receive a notice for
demolishing the house by tomorrow, we require an immediate relief, cuz we cant wait for 2
months. With leave of Court we can do so, Court will waive off requirement of Sec 80, but it
will not grant us relief, unless it show causes to the public authority that such relief is being
claimed or sought for and that they would decide that. In case Court find that it is not that
urgent, court can return it and ask them to serve notice under normal procedure.