CPC Notes

CODE OF CIVIL PROCEDURE
UNIT 1
LONG ANSWERS
Question
What is doctrine of resjudicata? When can this doctrine be applied? Elucidate
OR
State the circumstances under which a suit is barred by ‘res-judicata
Answer
Introduction
"Res" means "subject-matter" or "dispute" and "Judicata" means "adjudged" or "decided" "Res
Judicata" thus means "a matter adjudged" or "a dispute decided". Section 11 of the CPC
embodies the doctrine of res judicata and enacts that once a matter is finally decided by a
competent court, no party can be permitted to reopen it in a subsequent litigation.
History
The rule of res judicata has a very ancient history. It was well understood by Hindu lawyers
and Mohammedan jurists. It was known to ancient Hindu Law as Purva Nyaya (former
judgment). Under the Roman Law, it was recognized that "one suit and one decision was
enough for any single dispute". The doctrine was accepted in the European continent and in the
Commonwealth countries.
Objective of Res judicata
The doctrine of res judicata is founded on three maxims, which are non- negotiable in any
civilized system of law
(a) nemo debet bis vexari pro una et eadem causa: no man should be vexed twice for the same
cause
(b) interest reipublicae ut sit finis litium: it is in the interest of the State that there should be
an end to a litigation; and
(c) res judicata pro veritate occipitur: a judicial decision must be accepted as correct.
Conditions
It is not every matter decided in a former suit that will operate as res judicata in a subsequent
suit. To constitute a matter as res judicata under Section 11, the following conditions must be
satisfied:
1. The matter directly and substantially in issue in the subsequent suit or issue must be the
same matter which was directly and substantially in issue either actually or constructively
in the former suit.
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2. The former suit must have been a suit between the same parties or between parties under
whom they or any of them claim.
3. Such parties must have been litigating under the same title in the former suit.
4. The court which decided the former suit must be a court competent to try the subsequent
suit or the suit in which such issue is subsequently raised.
5. The matter directly and substantially in issue in the subsequent suit must have been heard
and finally decided by the court in the former suit.
Constructive Res Judicata
The rule of constructive res judicata engrafted in Explanation IVf o Section 11 of the Code is
an "artificial form of res judicata", and provides that if a plea could have been taken by a party
in a proceeding between him and his opponent, he should not be permitted to take that plea
against the same party in a subsequent proceeding with reference to the same subject-matter
Exceptions to the Doctrine of Res Judicata
There are certain exceptions to the doctrine of res judicata and these are as follows:
1. If the decree has been obtained by practicing misrepresentation or fraud on the court, or
where the proceedings had been taken all together under a special statute.
2. Not every finding in the earlier judgment would operate as a res judicata. Only an issue,
which is ‘directly’ and ‘substantially’ decided in the earlier suit, would operate as res
judicata.
3. Where the decision has not been given on merit, it would not operate, in case, the appeal
of the judgement and decree of the court below is pending in the appellate court, as then
the judgement of the court below cannot be held to be final, and the findings recorded
therein would not operate as res judicata.
4. When the judgment is non-speaking.
5. Where the matter has not been decided on merit earlier, the doctrine of res judicata is not
applicable.
6. The doctrine of Res Judicata does not apply to criminal cases, where the entire proceedings
have been initiated illegally and without jurisdiction.
7. When a matter involves a pure question of law, the doctrine of res judicata will not apply.
8. In cases of Dismissal in limine or dismissal on default, the doctrine of res judicata does
not apply.
Case Law
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1. Daryao v. State of UP: In this case, the Apex Court placed this doctrine on a higher footing,
considering and treating the binding character of the judgments pronounced by competent
courts as an essential part of the rule of law
2. State of Karnataka v. All India Manufacturers Organization & Ors: In this case, it was
held that the doctrine of Res Judicata would be applicable to a Public Interest Litigation,
provided the earlier case was a genuine and a bona fide litigation as the judgement in the
earlier case would be a judgement in rem.
3. Amalgamated Coalfields Ltd. & Anr. v. Janapada Sabha Chhindwara: The court held that
the general principle of doctrine of res judicata applies to writ petitions filed under Article
32 and 226. Further, the court ensured that the application of this doctrine to the petitions
filed under Article 32, does not in any way impair the fundamental rights guaranteed to
the citizens. It only seeks to regulate the manner in which the said rights could be
successfully asserted and vindicated in courts of law.
Conclusion
While discussing the doctrine of Res Judicata, it is essential to realize that the main objective
behind this doctrine is to prevent multiplicity of suits, to ensure the court’s resources are not
being misused or wasted, to prevent injustice by ensuring that there is no unnecessary recovery
of damages twice for the same matter. Perpetual litigation would do no good to society at large.
The Doctrine of Res Judicata must be applied mindfully.
Question
State the conditions of applicability of doctrine of res subjudice.
OR
Explain the scope and object of res-subjudice.
Answer
Introduction
Res means every object of right that forms the subject matter in a particular case. In Latin, the
term Sub-judice means ‘under a judge’ or in other words, a matter ‘under consideration’. It
means a cause that is under trial or pending before a court or judge.
Doctrine of Res Subjudice
Section 10 embodies the concept of sub-judice and declares that no court should proceed with
the trial of any suit in which the matter in issue is directly and substantially in issue in a
previously instituted suit between the same parties and the court before which the previously
instituted suit is pending is competent to grant the relief sought.
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The rule applies to trial of a suit and not the institution thereof. The provisions of Section 10
apply only to suits and not to other proceedings. Hence, it has no application if one of the two
proceedings is not a suit. It also does not preclude a court from passing interim orders, such as,
grant of injunction or stay, appointment of receiver,' etc. It, however, applies to appeals and
revisions."
Object
The object of the rule contained in Section to is to prevent courts of concurrent jurisdiction
from simultaneously entertaining and adjudicating upon two parallel litigations in respect of
the same cause of action, the subject-matter and the same relief. The policy of law is to confine
a plaintiff to one litigation, thus obviating the possibility of two contradictory verdicts by one
and the same court in respect of the same relief.
The key words in Section 10 are "the matter in issue is directly and substantially in issue in a
previously instituted suit". Hence, when the matter in controversy is the same, then only
Section 10 applies. When it is different, the section has no application."
The section intends to protect a person from multiplicity of proceedings and to avoid a conflict
of decisions. It also aims to avert inconvenience to the parties and gives effect to the rule of res
judicata." It thereby saves time and energy of courts as well as of parties.
The section does not bar the institution of a suit, but only bars a trial, if certain conditions are
fulfilled. The subsequent suit, therefore, cannot be dismissed by a court, but is required to be
stayed.
Consolidation of suits
The objective behind Section 10 is to avoid two contradictory decisions in the same matter by
different courts. To overcome this the courts can pass an order of consolidation of both the
suits. In the case of Anurag and Co. and Anr. vs. Additional District Judge and Others, it was
explained that consolidation of suits is ordered under Section 151 for meeting the ends of
justice as it saves the party from a multiplicity of cases, delays and expenses. The parties are
also relieved from producing the same evidence at two different places.
Conditions
For the application of this section, the following conditions must be satisfied:
1. There must be two suits, one previously instituted and the other subsequently instituted.
2. The matter in issue in the subsequent suit must be directly and substantially in issue in the
previous suit.
3. Both the suits must be between the same parties or their representatives.
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4. The previously instituted suit must be pending in the same court in which the subsequent
suit is brought or in any other court in India.
5. The court in which the previous suit is instituted must have jurisdiction to grant the relief
claimed in the subsequent suit.
6. Such parties must be litigating under the same title in both the suits.
As soon as the above conditions are satisfied, a court cannot proceed with the subsequently
instituted suit since the provisions contained in Section 10 are mandatory, and no discretion is
left with the court.
It is, however, necessary that for Section 10 to be attracted it is essential that entire subject-
matter in controversy must be the same between the previous suit and the subsequent suit. Mere
common grounds between previous and subsequent suit would not be sufficient." The order
staying proceedings in the subsequent suit can be made at any stage.
Section 10, however, does not take away power of the court to examine the merits of the matter.
If the court is satisfied that subsequent suit can be decided purely on legal point, it is open to
the court to decide such suit.
Difference between Res Judicata and Res Sub Judice
Res Judicata Res Sub Judice
Res judicata applies to a decided or Res Sub judice applies in a matter which is
adjudicated matter. pending.
It bars the trial of a suit or an issue which has It bars trial of a suit which is a pending
already been decided in a former suit. decision in a previously instituted suit.
Section 11 of the Civil Procedural Code, Section 10 of the Code exclusively deals with
1908 deals with res judicata. the principle of res sub judice.
Conditions:
Conditions:
1. There must be presence of two suits
1. A court of competent jurisdiction
one which was formerly instituted
must have given the decision in the
and other which was subsequently
former instituted suit.
instituted.
2. The matter in issue in the subsequent
2. The issues in the subsequent suit
suit must be same which is directly or
should be directly or substantially be
substantially in issue in the former
the same with the previous suit.
suit.
3. The parties in both the suits should be
3. The parties should be same in both
same.
the suits.
4. The court in which the previous suit
4. The court which gave decision in
was instituted must be a court which
former suit must be a court of
has competent jurisdiction to try such
competent jurisdiction.
suit.
5. The parties in the former suit must
5. The title should also be the same in
have litigated under the same title or
both the suits under which they are
in other words in the same capacity.
litigating.
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Conclusion
Res sub judice as a doctrine has the main purpose of reducing the burden of courts from
abundance cases. In other way it also reduces the burden of parties to adduce oral or written
evidence twice in different courts. It also avoids conflicting decisions and makes sure to
minimise the waste of resources of courts. The court can exercise this power and put a stay on
the subsequent suit. The people who try to misuse their right in order to get double benefits are
looked after through this principle. Anyways the Indian judiciary is overburdened with many
cases and if parties will start instituting cases twice then one can’t even imagine the situation
of the courts in giving decision in all such cases.
Question
What is a “suit of civil nature” and state weather is suit regarding right to worship is a
suit of civil nature
Answer
Under the Code of Civil Procedure, a civil court has jurisdiction to try all suits of a civil nature
unless they are barred. A civil court has jurisdiction to try a suit if two conditions are fulfilled:
1. The suit must be of a civil nature; and
2. The cognizance of such a suit should not have been expressly or impliedly barred.
Suit of civil nature
In order that a civil court may have jurisdiction to try a suit, the first condition which must be
satisfied is that the suit must be of a civil nature The word "civil" has not been defined in the
Code. But according to the dictionary meaning," it pertains to private rights and remedies of a
citizen as distinguished from criminal, political, etc.
The word "nature" has been defined as "the fundamental qualities of a person or thing, identity
or essential character. It is thus wider in content. The expression "civil nature" is wider than
the expression "civil proceeding"." Thus, a suit is of a civil nature if the principal question
therein relates to the determination of a civil right and enforcement thereof. It is not the status
of the parties to the suit, but the subject-matter of it which determines whether or not the suit
is of a civil nature.
In the case of Kehar Singh Nihal Singh Vs Custodian General, the court elaborated the concept
of Civil proceeding. It was defined as a grant of private rights to individuals or corporations of
society. The objective of the action is the reward or recovery of private rights.
Illustrations. -The following are suits of a civil nature:
(1) Suits relating to rights to property;
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(2) Suits relating to rights of worship;
(3) Suits relating to taking out of religious processions;
(4) Suits for specific performance of contracts or for damages for breach of contracts;
Suits not of civil nature: Illustrations. -The following are not suits of a civil nature:
(1) Suits involving principally caste questions;
(2) Suits involving purely religious rites or ceremonies;
(3) Suits for upholding mere dignity or honour;
Cognizance not barred
A litigant having a grievance of a civil nature has a right to institute a civil suit unless its
cognizance is barred, either expressly or impliedly.
(1) Suits expressly barred -A suit is said to be "expressly barred" when it is barred by any
enactment for the time being in force. It is open to a competent legislature to bar
jurisdiction of civil courts with respect to a particular class of suits of a civil nature,
provided that, in doing so, it keeps itself within the field of legislation conferred on it and
does not contravene any provision of the Constitution.
(2) Suits impliedly barred-A suit is said to be impliedly barred when it is barred by general
principles of law. Where an Act creates an obligation and enforces its performance in a
specified manner, that performance cannot be enforced in any other manner.
In the case of Shri Panch Nagar Park vs Purushottam Das, it was held that if there are no
specific terms in any statute the court needs to look into design, plan and suitable
provisions of the Act in order to find implied dismissal of the jurisdiction of a civil court.
Burden of proof
It is well proved that it is for the party who tries to dismiss the jurisdiction of the civil court to
establish it. It is uniformly well established that the statue dismissing the jurisdiction of a civil
court must be strictly explained. In the case of doubt as to jurisdiction, the court should lean
towards the theory of jurisdiction. A civil court has original authority to determine the issue of
its own jurisdiction although as a consequence of such query it may become that it has no
jurisdiction to consider the suit.
General Principles for determining jurisdiction
1. A civil court has jurisdiction to try all suits of a civil nature unless their cognizance is
barred either expressly or impliedly.
2. Consent can neither confer nor take away jurisdiction of a court.
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3. A decree passed by a court without jurisdiction is a nullity and the validity thereof can be
challenged at any stage of the proceedings, in execution proceedings or even in collateral
proceedings.
4. There is a distinction between want of jurisdiction and irregular exercise thereof.
5. Every court has inherent power to decide the question of its own jurisdiction.
6. Jurisdiction of a court depends upon the averments made in a plaint and not upon the
defence in a written statement.
7. For deciding jurisdiction of a court, the substance of a matter and not its form is important.
8. Every presumption should be made in favour of jurisdiction of a civil court.
9. A statute ousting jurisdiction of a court must be strictly construed.
10. Burden of proof of exclusion of jurisdiction of a court is on the party who asserts it.
11. Even where jurisdiction of a civil court is barred, it can still decide whether the provisions
of an Act have been complied with or whether an order was passed dehors the provisions
of law.
Weather is suit regarding right to worship is a suit of civil nature
The expression "suit of a civil nature" will cover private rights and obligations of a citizen.
Political and religious questions are not covered by that expression. A suit in which the
principal question relates to caste or religion is not a suit of a civil nature. But if the principal
question in a suit is of a civil nature (the right to property or to an office) and the adjudication
incidentally involves the determination relating to a caste question or to religious rights and
ceremonies, it does not cease to be a suit of a civil nature and the jurisdiction of a civil court is
not barred." The court has jurisdiction to adjudicate upon those questions also in order
Conclusion
Civil court has jurisdiction to investigate whether tribunal and quasi-judicial bodies or legal
executive acted within their jurisdiction. It can be presumed that section 9 essentially deals
with the issue of the civil court’s jurisdiction to consider a matter. Civil court has jurisdiction
to consider a suit of civil nature except when it’s notification is expressly barred or bared by
significant suggestion. Civil court has jurisdiction to resolve the problem of its jurisdiction.
Question
What is meant by jurisdiction of the court? Explain the various kinds of jurisdiction
with the help of decided cases
Answer
Introduction
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Jurisdiction has not been explained in the Code of Civil Procedure. In simple words, it can be
described as the power of the court to settle the matter. The Indian Judiciary has invoked the
ancient legal maxim ‘Ubi jus Ibi Remedium’, which means that where there is a right there is
a remedy. The judicial forum must have jurisdiction to deal with the matter. Hence, the
Jurisdiction commonly rests where the crime is committed.
Meaning of jurisdiction
The word (juris diction) is derived from Latin terms "juris" and "dicto" which means "1 speak
by the law"
In other words, by jurisdiction is meant the authority which a court has to decide matters that
are litigated before it or to take cognizance of matters presented in a formal way for its decision.
Thus, jurisdiction of a court means the extent of the authority of a court to administer justice
prescribed with reference to the subject-matter, pecuniary value, and local limits.
It is well-settled that consent cannot confer nor take away jurisdiction of a court, the same has
been upheld by the leading case of A.R. Antulay v. R.S Nayak. If the court has no inherent
jurisdiction, neither acquiescence nor waiver nor estoppel can create it. A defect of jurisdiction
goes to the root of the matter and strikes at the authority of a court to pass a decree. Such a
basic and fundamental defect cannot be cured by consent of parties and the judgment or order
passed by a court, however, precisely certain, and technically correct, is null and void and the
validity thereof can be challenged at any stage.
Jurisdiction is determined mainly on the grounds of:
1. Fiscal value;
2. Geographical boundaries of a court;
3. The subject matter of court.
Kinds of jurisdiction
1. Civil and criminal jurisdiction: Civil jurisdiction is that which concerns and deals with
disputes of a "civil nature". Criminal jurisdiction, on the other hand, relates to crimes
and punishes offenders.
2. Territorial or local jurisdiction: Under this territorial or local jurisdiction, the
geographical limits of a court’s authority are clearly delineated and specified. It cannot
exercise authority beyond that geographical/ territorial limit. Furthermore, Section 16
of the Code of Civil Procedure explains the territorial jurisdiction on the grounds of the
location of the immovable property.
3. Pecuniary jurisdiction: Pecuniary means ‘related to capital.’ It approaches the question
of whether the court is competent to try the case of the financial value. The code allows
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analysing the case unless the suit’s value exceeds the financial limit of the court. Section
15 of the Code of Civil Procedure commands the organisation of the suit in the court of
the low grade. It refers to pecuniary jurisdiction of Civil court. It is a course of the
method and it does not affect the jurisdiction of the court. The main objective of
establishing pecuniary jurisdiction is to prevent the court of a higher level from getting
burdened and to provide assistance to the parties.
4. Jurisdiction as to the subject matter: The subject matter can be defined as the authority
vested in a court to understand and try cases concerning a special type of subject matter.
In other words, it means that some courts are banned from hearing cases of a certain
nature.
5. Original and appellate jurisdiction: Appellate jurisdiction refers to the court’s authority
to review or rehearsal the cases that have been already decided in the lower courts. In
the Indian circumstances, both the High Court and Supreme Court have the appellate
jurisdiction to take the subjects that are bought in the form of appeals.
Original Jurisdiction refers to the court’s authority to take notice of cases that could be
decided in these courts in the first instance itself. Unlike appellate jurisdiction wherein
courts review the previously decided matter, here the cases are heard afresh.
6. Exclusive and concurrent jurisdiction: In Civil Procedure, exclusive jurisdiction means
where a single court has the authority to decide a case to the rejection of all the courts.
This jurisdiction is decided on the basis of the subject matter dealt with by a specific
court.
Concurrent jurisdiction exists where two or more courts from different systems
simultaneously have jurisdiction over a particular case. In this situation, parties will try
to have their civil or criminal case heard in the court that they perceive will be most
favourable to them.
7. General and special jurisdiction: General jurisdiction means that general courts do not
limit themselves to hearing only one type of cases. This type of jurisdiction means that
a court has the power to hear all types of cases.
Specific jurisdiction is jurisdiction which is confined to special, particular or limited
cause.
8. Legal and equitable jurisdiction: Legal jurisdiction is a jurisdiction exercised by
Common Law Courts in England, while equitable jurisdiction is a jurisdiction exercised
by Equity Courts. Courts in India are courts of both, law and equity.
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9. Expounding and expanding jurisdiction: Expounding jurisdiction means to describe,
clarify and explain jurisdiction. Expanding jurisdiction means to develop, expand or
prolong jurisdiction. It is the duty of the court to clarify its jurisdiction and it is not
proper for the court to extend its jurisdiction.
10. Municipal and foreign jurisdiction: Municipal or domestic jurisdiction is a jurisdiction
exercised by municipal courts, i.e., courts in a country. Foreign jurisdiction means
jurisdiction exercised by a court in a foreign country. A judgment rendered or decision
given by a foreign court is a "foreign judgment".
Conclusion
Civil court has jurisdiction to investigate whether tribunal and quasi-judicial bodies or legal
executive acted within their jurisdiction. It can be presumed that section 9 essentially deals
with the issue of the civil court’s jurisdiction to consider a matter. Civil court has jurisdiction
to consider a suit of civil nature except when its notification is expressly barred or bared by
significant suggestion. Civil court has jurisdiction to resolve the problem of its jurisdiction.
Question
Briefly state the principles governing the place of suing.
OR
“Every suit shall be Instituted in the court of lowest grade competent to try it.”
Comment.
Answer
Introduction
The expression "place of suing" simply means the venue for trial and it has nothing to do with
the competency of the court. Sections 15 to 20 of the Code of Civil Procedure regulate the
forum for the institution of suits. Section 15 requires the plaintiff to file a suit in the court of
the lowest grade competent to try it.
There are three kinds of jurisdiction to determine the place of suing: -
 Territorial jurisdictions
 Pecuniary jurisdictions
 Subject matter jurisdiction
Whenever the suit is brought before the court the first question is to determine is whether the
court has a jurisdiction to deal with the matter. If the court has all these territorial, pecuniary,
or subject matter jurisdiction then only the court has the power to deal with the case. In the
case, if the court does not have any of the above-mentioned factors, then it will be considered
as lack of jurisdiction or the irregular exercise of jurisdiction. When the court who does not
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have jurisdiction decide the case and give decision then such decision will be considered as
void or voidable depending upon the different circumstances.
Section 15: Pecuniary Jurisdiction
Every suit shall be instituted in the court of lowest grade competent to try it. The word
competent denotes that the court must have the power to hear the case with regards to pecuniary
jurisdiction. The court of lowest grade who has a jurisdiction with regards to pecuniary value
shall deal with the case at first instance.
Ordinarily, the plaintiff makes the valuation of the suit for the purpose of determining the
pecuniary jurisdiction of the court unless it prima facie appears to the court that the valuation
was not done correctly. When the court finds that the valuation was either done overvalued or
undervalued, then the valuation will be done by the Court and the court will direct the party to
approach the appropriate forum.
The jurisdiction of the court is decided by the plaintiff valuation but not the amount for which
decree is passed.
The object underlying this provision is twofold,
(1) to see that the courts of higher grades shall not be overburdened with suits; and
(2) to afford convenience to the parties and witnesses who may be examined in such suits.
Section 16-20: Territorial Jurisdiction
It is divided into: -
 Suits related to immovable property (Section 16 to 18)
 Suits related to Movable property (Section 19)
 Other suits (Section 20)
Section 16: This Section states that when a suit is filed regarding relief or compensation for
wrong caused to an immovable property that is held by the defendant or any other person on
the behalf of the defendant where the relief can be obtained through his personal attendance
then suits may be instituted in a court within whose local jurisdiction of either where the
property is located or where the defendant resides or carries out business.
Section 17- According to this Section, when an immovable property falls under the jurisdiction
of two or more courts, then it is up to the discretion of the plaintiff to decide which court to file
the suit at. When a property shares the jurisdiction of multiple courts, the plaintiff can choose
as per their convenience
Section 18- This section states that when the local limits of the jurisdiction of courts is
uncertain, and any of the courts is satisfied that there is a ground of uncertainty, then such court
can record the statement and proceed with hearing the case and passing a final decree. The
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decree passed by such court will have the same effect as if the property was situated within the
local limits of the jurisdiction of the said court.
In case the court taking cognizance of the case does not record the statement and an objection
is raised before the Appellate or Revisional Court, the Appellate or Revisional court shall not
allow the objections unless it is satisfied that at the time of institution of the suit there was no
reasonable ground for uncertainty as regards to jurisdiction of Court and there has been a failure
of justice.
Movable Property– Section 19
When the suit filed is regarding a movable property, then the jurisdiction for filing such suit
shall be in the court under whose local limits the right was violated or where the defendant
resides or carries on business. It is the discretion of the plaintiff to decide which of the above
jurisdiction to invoke.
Other Suits- Section 20
Civil suits under the purview of CPC that aren’t related to property, both movable and
immovable, come under the ambit of this section. This includes matters such as breach of
contract or commercial transactions. When a suit is filed under this section, the jurisdiction for
filing such suit shall be in the court under whose local limits the right was violated or where
the defendant resides or carries on business. It is the discretion of the plaintiff to decide which
of the above jurisdiction to invoke
Subject-Matter Jurisdiction
Different courts are empowered to decide different types of suits. Certain courts have no
jurisdiction to entertain certain kinds of suits. For example, the Court of Civil Judge (Junior
Division) cannot pass a decree in suits for testamentary succession, divorce cases, probate
proceedings, insolvency matters, etc. This is known as subject matter jurisdiction, where only
if a court has jurisdiction over a certain class of cases can a case from such a class be
approached.
Objections as to Jurisdiction: S.21
This section states that a judgment passed by a court with no jurisdiction is an irregular
judgment. The objection regarding judgment is to be brought by the parties in the instance
itself. If the error in the jurisdiction is related to the subject matter and irrespective of whether
it is objected before the court in the first instance or not, the judgment can be considered null
and void, and such an issue can be raised in an appellate or revisional level as well. However,
if the error in jurisdiction arises because of a pecuniary or territorial error and is not brought
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before the court in the first instance, the judgment is held to be irregular but no objection
relating to jurisdiction can be raised in an appellate or revisional stage.
Conclusion
Jurisdiction plays an important role in the justice system. Approaching the right court with an
appropriate jurisdiction is the first step to justice. A plaintiff must hence keep in mind the
importance of approaching the right forum. A defendant must always check for a fault in the
jurisdiction as it would greatly affect the case. Jurisdiction plays a major role especially at times
of appeal and revision.
Question
State the provisions regarding transfer of cases.
Answer
Introduction
Sections 22 to 25 enact the law as regards transfer and withdrawal of suits and appeals from
one court to another court. Section 22 read with Section 23 enables the defendant to apply for
transfer of a suit while Section 24 empowers High Court and District Court and Section 25
empowers Supreme Court to transfer any suit or appeal either upon application made by the
party or Suo motu.
Transfer of suit by defendant
In Section 22 of CPC, the plaintiff has the right to file a case in any competent court and when
the defendant gets to know the purpose of application he may apply for the transfer of the case.
The court may also consider the objection if any, made by the plaintiff in relation to such
transfer. And further, after the clearance of the objection, the court will transfer the case in a
court that is competent to deal with that case.
Section 22 and 23 are related to each other. Section 22 defines the power of the defendant to
apply for the cases and section 23 lays down the conditions where the application of transfer
can be made.
Conditions
1. The suit or other proceeding must have been pending in a court competent to try it.
2. The transfer court must be subordinate to the court making transfer order.
3. The transferee court should be competent to try or dispose of the suit, where
competency does not only include pecuniary but also territorial competency.
Court application is filed is dealt under Section 23:
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1. Where the several courts having jurisdiction subordinate to the same appellate court
then an application u/s 22, shall be made to the appellate court.
2. Where such courts are subordinates to different appellate courts but to the same high
court then the application shall be made to the high court.
3. Where such Courts are subordinate to different courts within the local limits of whose
jurisdiction the court in which suit is brought is situated.
Grounds for transfer:
1. To meet the conclusion of justice-it is almost the duty of the judiciary to give away the
justice and justice should be delivered in such a way so that good message can be
reached, society it should be delivered in such a manner so that faith of court to be
maintained. The court should have an extra moral obligation to keep the trust and
confidence alive.
2. Desirability of having the only adjudication of a particular controversy.
3. When there involves a substantial question of law.
4. To prevent abuse of proceeding of court
5. To avoid delay and unnecessary expenditure
6. Where the judge is biased or interested in one part only
7. Where a similar question of fact and law arise in two different cases
8. When in a similar cause two people filed a case but in different court.
9. To avoid multiplicity of proceedings or conflicting decisions.
Notice
According to Section 22 of the CPC, it is mandatory to mention the time and then give notice
of the application. Notice should be given to all the parties pleading in the suit, whether it is
plaintiff or defendant and merely to the opposite parties only. Under the provisions of section
22 notice of the application must be given to each and every party of the suit and to the court
before which it is made. But it has been held that the defect could be cured by notice on
application itself.
Suo Motu transfer
Under Section 24 of Civil Procedure Code, the jurisdiction is exercised in the matter of transfer
of a lawsuit, appeal or revision by the High Court and District Court is not bound by any
application produced by any of the parties. Judges of the High Court and District Courts have
discretionary powers in the matter of Suo moto. Under section 24 of the CPC the High Court
may, on the application received by any of the parties for the transfer of suit may move the
application from one court to another.
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Section 24 does not specify any ground in which the case can be moved from one court to
another but there are certain principles and grounds which have to be followed for transfer of
cases from one court to another. Consideration of facts and law has to be taken into account for
transfer of cases. Section 24 also empowers High Court to move cases from one court to
another.
Cases where transfer is allowed
Transfer of cases from one court to another is allowed when: -
1. Reasonable threat in mind of party that he/she will not get justice where the case is
pending in court.
2. Balance of convenience.
3. When two people filed a suit against each other in different court on the same cause of
action.
4. Where there are suits pending in different court but similar question of facts and law
arises.
5. Where the judge is biased and making discrimination.
Cases where transfer is not allowed
1. Where there is mere balance of convenience to the applicant.
2. Where judges give the opinion in advance about the judgment of case.
3. Where there are mere facts of an erroneous order.
4. Where claim is that the opposite party is an influential man in the locality.
5. Where a claim that the court is situated at a long distance from the residence of the
applicant.
Conclusion
Power of transfer must be exercised with due care and attention and with the interest of justice.
The court should decide the conflicting interest. Paramount consideration is justice and if the
ends of justice demand transfer of case the court shall not hesitate. But there are some
limitations where transfer of cases can be done or instances under which it can be done or
cannot be done can inconvenience and complexity. Relevant factors have to be considered for
the transfer of cases.
Question
Define foreign judgement. When shall it be conclusive and state the presumption
relating to foreign judgement.
Answer
Introduction
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The enforcement of judgements of “Foreign Courts” in a country comes under the ambit of
Private International Law. Sections 13 and 14 of The Code of Civil Procedure, 1908 are a
manifestation of Private International Law in Indian domestic laws and the aforementioned
sections and related judicial pronouncements govern the enforceability of foreign judgements
in India
Foreign Judgement
Foreign Court: The term “Foreign Court” refers to a court/judicial body which is situated
outside the territory of the Republic of India and has not been established and continued by the
Union Government.
Foreign Judgement: The term “Foreign Judgement” refers to a judgement Passed by a foreign
court.
Objective of enactment of provisions for enforcement of judgements passed by foreign courts
The enforcement of a judgement passed by a foreign court is based on the principle that the
adjudication of a dispute by a foreign court of competent jurisdiction gives rise to a legal
obligation to execute the verdict of the court.
While the rules with respect to Private International Law and the enforcement of its principles
differ from nation to nation, there are certain regulations which are deemed to be applicable to
almost all civilised legal jurisdictions.
This nature of recognition is catered for not for the sake of international courtesy but instead
for the furtherance of justice, equity, and good conscience and to take foreign law and judicial
pronouncements into consideration can in no manner be considered as derogation of the
sovereignty of a nation.
As rightly stated by Cardozo, J., in the case of Locks v. Standard Oil Co., refusal of courts in
one jurisdiction to act upon the decrees passed by courts possessing appropriate jurisdiction in
foreign jurisdictions will make it difficult to carry out tasks in the modern world.
Presumption as to foreign judgments
Section 14 states the presumption that an Indian court takes when a document supposing to be
a certified copy of a foreign judgment is presented before it. The Indian Courts presume that a
foreign Court of competent jurisdiction pronounced the judgment unless the contrary appears
on the record, but by proving want of jurisdiction may overrule such presumption.
Conclusiveness of Foreign Judgments
Section 13 lays down the fundamental rules which should not be violated by any foreign court
in passing a decree or judgment. The decree or judgment of foreign court will be conclusive
except where it comes under any of the clauses (a) to (f) of Section 13.
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Conditions for Non-Conclusiveness of Foreign Judgments
1. When a Foreign Judgement has been Passed by a court lacking jurisdiction: It is a
universally recognised and essential principle of law that a judgement if passed by a
court with respect to a dispute which it lacks the jurisdiction to adjudicate is null and
void.
Thus, applying the same rule to Private International Law and its embodiment in the
CPC, a foreign judgement must have been passed by a court of competent jurisdiction
to be recognised as being conclusive and thus be enforceable. The court must be
competent by virtue of both the law of the state and by the definition of International
Law and must have directly adjudicated upon the legal matter which is being pleaded
as res judicata to be enforced. A landmark judgement in this regard is the case
of Gurdyal Singh v. Rajah of Faridko
2. When a Foreign Judgements are not passed on merits of the case: In order to be
considered conclusive, the judgement passed by a foreign court must have been given
on the merits of the case. A judgement is said to have been issued on merits if the judge,
post the conduct of a fair hearing, allowing both parties to represent their case and
scrutinising the evidence, rules in favour of a party to the dispute. Thus, in certain cases
such as when a suit is dismissed due to the plaintiff failing to appear in court, such
judgements are not considered to be judgements made on the basis of the merits of the
case.
3. When a Foreign Judgement is Against Indian or International Law: A judgement which
is not consistent with, is against or is predicated upon an incorrect interpretation of
international law or a refusal to recognise Indian law wherever applicable shall not be
considered to be a conclusive judgement. However, the mistake must be prima facie
apparent in the proceedings. As stated in the case of Narasimha Rao v. Venkata
Lakshmi, when a foreign judgement is delivered based on grounds which are
inconsistent, unrecognised or in transgression of Indian or International law, it will not
be considered conclusive and shall not be enforceable in India.
4. When a Foreign Judgement is Passed in Direct Contravention of the Principles of
Natural Justice: A judgement passed by a court must be so obtained after following the
due process of law. This means that the court must abide by and enforce the principles
of natural justice. A judgement which has been passed in ignorance of/in violation of
the principles of natural justice will be regarded as being null and void and the trial
shall be considered to be “coram non judice”.
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5. When a Foreign Judgement is Procured via Fraud: As is the principle in Private
International Law, if a foreign judgement is obtained via fraudulent means, it shall not
be considered res judicata and thus as such shall not be considered to be conclusive and
shall not be enforceable in the Republic of India. In the case of Satya v. Teja Singh, the
husband was able to divorce his wife by misleading the court stating that he was an
American citizen even though he was not. The Supreme Court of India recognising that
the husband had defrauded the foreign court held that the decree of divorce would not
be enforceable and was null and void.
6. When a Foreign Judgement is Found to be in Violation of Indian Law: When a foreign
judgement is predicated upon a violation of Indian law, it would not be enforceable in
India. It is imprudent for any nation – state to adopt blindly the rules of Private
International Law. Each and every case that is adjudicated by the courts in the Republic
of India must be done in accordance with Indian law and must not go against Indian
public policy. In the case of Ruchi Majoo v. Sanjeev Majoo, the Supreme Court held
that in matters related to child custody, the most important issue is that of the welfare
of the child. As such, a court in India must review the case on its own and adjudicate
the matter, taking into consideration the ruling of the foreign court.
Reciprocating territory and enforcement of foreign judgements
44A of the CPC states that a “Reciprocating Territory” is any country or territory outside the
Republic of India which the Union Government can via notification in the Gazette of India
declare as being a reciprocating territory.
A certified copy of a judgement passed by a superior court in any reciprocating territory when
filed in a District Court in India shall be executable in India and its execution will have the
same effect as if it was passed by a District Court in India
Conclusion
Where a judgment or a decree is passed by a foreign Court against an Indian defendant, the
judgment or decree may not be enforceable against him due to the operation of Section 13 of
CPC. It can be seen that the plaintiff has to come to the Indian courts to either get the foreign
judgment executed or enforced in India under Section 44A or file a fresh suit in Indian courts
upon the foreign judgment for its enforcement. Therefore, by getting a decree in the foreign
court, the plaintiff only avoids the inconvenience of leading evidence in the Indian Courts but
runs a much bigger risk under Section 13.
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SHORT ANSWERS
Question (Answers from Long Questions)

1. Foreign Judgement
2. Pecuniary jurisdiction of courts
3. Transfer of cases
4. Place of suing
5. Doctrine of Res-Subjudice
6. Territorial jurisdiction of courts
7. Kinds of jurisdiction
8. Res judicata
9. Bar on jurisdiction (Sec 9)
Question
Substantive law
Answer
Introduction
Laws are the set or system of rules established by the government for the citizens to obey and
also to govern their behaviours and conduct. They are usually enforced by governmental
institutions. The mechanism of the law ensures that all citizens abide by them and that society
can function safely without any obstructions. In India, the laws are made by the Indian
Parliament, implemented by the executives and interpreted and enforced by the judiciary.
Law can be further divided into two broad categories – I. Substantive laws and II. Procedural
laws. They form the two major branches of law.
 Substantive laws are the statutory laws passed by the legislature.
 Whereas, procedural laws comprise the rules and processes which any court follows for
hearing and determining the cases.
Substantive laws define the rights and responsibilities in civil law and crimes and punishments
in criminal law. Substantive laws are codified in legislated statutes or may be practised or
modified through precedent, especially in the common law system. These laws can also be
enacted through the initiative process. Substantive laws refer to the actual claims and defences
to refer to in any particular case.
Nature of substantive laws
Substantive laws deal with those areas of law which establish the rights and obligations of the
individuals and what individuals may or may not do. These laws have independent power to
decide any case. It dictate the legal context of any crime such as how the case will be handled
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and what specific punishments to be given for any crime. Statutory laws or precedents in the
common law system are substantive laws. It deals with the legal relationship between
individuals or the legal relationship between an individual and the State. It is the statutory laws
which define and determine both the rights and obligations of the citizens to be protected by
law and the crimes or wrongs and also their remedies. Substantive laws determine the subject
matter of litigation pertaining to the administration of justice.
In the case of Thirumalai Chemicals Ltd. v. Union of India and others (2011), the Supreme
Court ruled that substantive laws are a body of rules that “creates, defines and regulates rights
and liabilities”. On the other hand, procedural laws establish “a mechanism for determining
those rights and liabilities and a machinery for enforcing them”.
Sources of substantive laws
The Substantive Laws are usually derived from:
1. the principles in Common laws which already exist, codified statutory laws
2. Constitution
3. judicial precedents in cases with similar facts and circumstances.
4. Substantive laws are also derived from various treaties that dictate the conditions of the
law.
Types of substantive laws
The substantive laws define both the rights and the wrong and the punishment or remedy for
it. The laws include all categories of Public and Private law also including both substantive
civil and criminal laws.
1. Substantive civil laws: Substantive civil laws are the laws which deal with disputes between
any individuals, organisations or between both of them where the victim is entitled to
compensation. The plaintiff should have to prove that he/ she has gone through damages or
has suffered injury by using the relevant substantive civil laws. If the plaintiff is successful
in proving his/ her point before the court by himself/ herself or through his/ her attorney,
substantive civil laws would be used to compensate the plaintiff for any injury or harm
caused accordingly. Substantive civil laws do not provide any constitutional protection to
any of the parties but provide the right to appeal to both the parties.
2. Substantive criminal laws: Substantive criminal laws deal with criminal offences and the
punishments to be awarded for each of these criminal offences. A criminal prosecution
starts after the defendant violates any criminal statute. The primary purpose of substantive
criminal laws is to provide punishment to the convict while compensation may be provided
to the victim depending on the situations. Using substantive criminal laws, the court finds
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out whether the accused is guilty or not and if found guilty, what should be the punishments
for the criminal offence.
Limitations of substantive laws
1. Elements of substantive laws sometimes act as an obstacle to access to justice. Some
elements of substantive laws which are unfavourable to any litigant will constitute an
impediment to justice.
2. Substantive laws can be used to limit and restrict the power and freedom of any
individual.
3. The State possesses the uncontrolled and unlimited power to frame laws according to
its own will which the judiciary is bound to follow.
4. However, in India, the judiciary may strike down any law if it is unconstitutional.
Question
Procedural law
Answer
Introduction
Laws are the set or system of rules established by the government for the citizens to obey and
also to govern their behaviours and conduct. They are usually enforced by governmental
institutions. The mechanism of the law ensures that all citizens abide by them and that society
can function safely without any obstructions. In India, the laws are made by the Indian
Parliament, implemented by the executives and interpreted and enforced by the judiciary.
Law can be further divided into two broad categories – I. Substantive laws and II. Procedural
laws. They form the two major branches of law.
 Substantive laws are the statutory laws passed by the legislature.
 Whereas, procedural laws comprise the rules and processes which any court follows for
hearing and determining the cases.
In contrast to substantive laws, procedural laws, also known as Adjective Laws, are the laws
which act as the ‘machinery’ for enforcing rights and duties. Procedural laws comprise the
rules by which a court hears and determines what happens in civil, criminal or administrative
proceedings, as well as the methods by which substantive laws are made and administered. The
rules are designed to ensure a fair and consistent application of due process and fundamental
justice to all cases before any particular court.
Procedural laws are made to ensure the best distribution of judicial resources. All procedural
laws are made following the due process of the law. A court cannot impose a civil or criminal
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penalty on any individual who has not received any notice of the case filed against him/ her or
has not got a fair opportunity to present evidence or defend himself/ herself. The
standardisation of the procedural laws depends on how any case is filed, parties are informed,
evidence is presented and the facts are determined to maximise the fairness of any legal
proceeding.
Nature of procedural laws
1. Procedural laws lay down the ways and means substantive laws can be enforced.
2. They do not carry any independent powers to decide any case.
3. These laws are applied in the legal procedure which sometimes may be used in non-
legal contexts, such as filing any suits or the manner any case will proceed.
4. These laws are enforced by the Acts of Parliament or implemented by the government.
5. Apart from prescribing ways and means of enforcing rights, procedural laws also
redress for the infringement of rights, also describe the machinery for proceedings of
any suit.
Sources of procedural laws
Procedural laws are extremely important in the administration of justice. They function as the
means by which substantive laws should be implemented.
The primary source of procedural laws is the Constitution. Other sources of procedural laws
include:
1. Statutes enacted by the legislature;
2. Written regulations for employees of various law enforcement agencies. These
regulations cannot be considered as laws but violating them results in taking internal
actions.
3. Various rules, procedural guidelines and rulings of cases laid down by the Supreme
Court.
Types of procedural laws
Different legal systems have different procedural laws. Some of the procedural laws may
primarily look for the truths or fairness between the parties and some procedural laws target a
speedy resolution of disputes. Other procedural laws may also consist of a proper and thorough
application of legal principles. Procedural laws are the means to enforce substantive laws.
Hence, there exist different types of procedural laws depending on the characteristics of
substantive laws.
Based on these, the procedural laws are primarily of two types:
1. Civil procedural laws or laws of civil procedure and
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2. Criminal procedural laws or laws of criminal procedure
Laws of Civil Procedures comprise the rules, regulations and standards for the courts to follow
during the cases relating to civil matters and various civil trials. These procedural laws govern
how a civil suit or case should commence and the procedures to be followed during the case.
They also dictate:
 the nature of pleadings and statements of case, motions or applications;
 available remedies for civil cases;
 the orders to be passed in civil cases;
 the limiting time for appeal and the manners of how the cases are to be disposed of;
 the conduction of civil trials;
 the process for passing judgement, and
 how the courts, judicial officers and clerks must function.
Civil procedural laws determine the parties of any civil case. The parties for claims concerning
the civil actions by private individuals or groups, companies, organisations or institutions
against one another and in addition. The government in power or any of the subdivisions or
agencies of the government may also be parties to civil suits filed by private individuals or
groups.
Laws of Criminal Procedures
While substantive criminal laws deal with punishment for criminal offences against public and
private individuals. The laws of criminal procedure can be termed corollary where these laws
lay down the criminal procedures. These laws describe how criminal law should be applied and
its procedures.
Judicial proceedings intend to find out the true facts and establish guilt or innocence by making
the best use of the available pieces of evidence. Hence, criminal procedural laws also govern
the presentation of evidence, becoming witnesses for the criminal offence committed and the
documentation and establishment of offences through physical proof.
Limitations of procedural laws
Procedural laws have certain drawbacks and limitations.
1. Some of the procedural laws may impose strict time limitations which may either hasten
or slow down the speed of the legal proceedings.
2. Any party who is unfamiliar with procedural laws may breach the guidelines. Though
they may not affect the merits of the case, the failure to follow these guidelines may
severely damage the chances of the party.
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3. Procedural laws are constantly torn between arguments that judges should have greater
discretion to avoid the rigidity of the rules. While the other argument is that the judges
should have less discretion in order to avoid a result based more on personal preferences
than the laws or the facts.
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UNIT 2
LONG ANSWERS
Question
Who are the parties to a suit? Discuss joinder of parties and effect of non-joinder.
OR
Explain the rules relating to Joinder of parties to the suit.
OR
Who may be joined as plaintiffs and defendants? What is the effect of misjoinder and
non-joinder of parties?
OR
Explain the provisions of CPC relating to the parties to the suit, their joinder,
misjoinder, and non-joinder
OR
Who may be joined as plaintiff and defendants? What are the effects of misjoinder and
non-joinder of parties?
Answer
Introduction
In common parlance, the term "suit" is taken to include all proceedings of a judicial or quasi-
judicial nature in which the disputes of aggrieved parties are adjudicated before an impartial
forum.
There are four essentials of a suit:
(i) Opposing parties;
(ii) Subject-matter in dispute;
(iii) Cause of action; and
(iv) Relief.
Order 1 of the Civil Procedure Code, 1908 addresses the varied issues concerned with the first
and most prominent ingredient of civil suits i.e., parties to a suit. This encompasses questions
of addition, deletion, substitution, transposition as well as non-joinder and misjoinder of parties
to a suit. The parties in a civil suit are the plaintiff i.e., the person who brings an action for his
rights and the defendant i.e., the person against whom such rights are claimed.
Plaintiffs and Defendants are two parties to the suit but there can be multiple plaintiffs and
defendants.
In this context, a party may be a necessary party or a proper party. Necessary means
mandatory. In other words, Necessary Party is one without whom no order can be made
effectively. But parties in whose absence any effective order can be made but whose presence
is necessary for final and complete disposal of the case, then he is a proper party.
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Joinder of plaintiffs: Rule 1
Rule 1 provides for joinder of plaintiffs. It states that all persons may be joined in one suit as
plaintiffs if the following two conditions are satisfied:
1. the right to relief alleged to exist in each plaintiff arises out of the same act or
transaction; and
2. the case is of such a character that, if such persons brought separate suits, any common
questions of law or fact would arise.
Joinder of defendants: Rule 3
Rule 3 provides for joinder of defendants. It states that all persons may be joined in one suit as
defendants if the following two conditions are satisfied:
1. the right to relief alleged to exist against them arises out of the same act or transaction;
and
2. the case is of such a character that, if separate suits were brought against such persons,
any common question of law or fact would arise.
Non-joinder or misjoinder of parties: Rule 9
Where a person, who is a necessary or proper party to a suit has not been joined as a party to
the suit, it is a case of non-joinder. Conversely, if two or more persons are joined as plaintiffs
or defendants in one suit in contravention of Order 1 Rules 1 and 3 respectively and they are
neither necessary nor proper parties, it is a case of misjoinder of parties.
The general rule is that a suit cannot be dismissed only on the ground of non-joinder or
misjoinder of parties. Nor a decree passed by a competent court on merits will be set aside on
the ground of misdescription of the defendant. However, this rule does not apply in case of
non-joinder of a necessary party.
If the person who is likely to be affected by the decree is not joined as a party in the suit or
appeal, the suit or appeal is liable to be dismissed on that ground alone." But in B. Prabhakar
Rao v. State of A.P, where all the affected persons had not been joined as parties to the petition,
and some of them only were joined, the Supreme Court took the view that the interests of the
persons who were not joined as parties were identical with those persons who were before the
court and were sufficiently and well represented and, therefore, the petition was not liable to
be dismissed on that ground.
Similarly, no decree or order under Section 47 of the Code can be reversed or substantially
varied in appeal, inter alia, on account of any misjoinder or non-joinder of parties, not affecting
the merits of the case or the jurisdiction of the court, provided that such party is not a necessary
party.
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Misjoinder Non- Joinder
When mistakenly a party was added to When a party is necessary to the suit and he was
the suit is misjoinder. That means not added to the suit, then it is a non-joinder.
when a party was added but he doesn’t
have to do anything with the present
issue then it considered to be
misjoinder.
In case of misjoinder the court should When the court found about the non-Joinder of the
not dismiss the suit rather; may order party who are necessity to the suit, and adjudicating
in such kind as the order not bind on on such matter without them is a matter of waste,
the misjoined party and the relief then the court can dismiss the suit, or may order the
should be sought only upon the plaintiff to add the necessary parties or may add the
respective necessary party. party on their own.
There is no possibility of dismissal, There is a possibility. Of dismissing the suit, in
since it won’t much affect the interest respect to the effectiveness of the decree/order.
of the party at large.
Objections as to non-joinder or misjoinder of parties: Rule 13

All objections on the ground of non-joinder or misjoinder of parties must be taken at the earliest
opportunity, otherwise they will be deemed to have been waived." But if the objection as to
non-joinder of necessary party has been taken by the defendant at the earliest stage and the
plaintiff fails to join or declines to add the necessary party, he cannot subsequently be allowed
in appeal to rectify the error by applying for amendment.
Conclusion
The misjoinder and non-joinder of parties in CPC are not only fatal to the suit but also the
parties are important for the suit to pass any decree or judgments. As stated in rule 9 of order
1 of CPC, 1908 which says that no suit can be defeated or dismissed on the grounds
of misjoinder and non-joinder of parties in CPC suit. The court is the one who has the power
or authority to decide on the suit whether the suit is maintainable or not as non-joinder plays a
major role in the passing of any further decree as non-joinder of necessary parties are the
important parties to the suit without whom the proper decree cannot be passed or difficult to
conclude for the hon’ble judge in the matter of the suit filed with the court.
Question
What are the necessary elements of the plaint? When can it be rejected? Explain.
OR
State the essentials of a plaint and under what circumstances the plaint can be rejected
by the court?
OR
Briefly describe the different parts of a plaint.
Answer
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Introduction
Pleading is defined as plaint or written statement. According to Mogha "Pleadings are
statements in writing drawn up and filed by each to a case, stating what his contentions will be
at the trial and giving all such details as his opponent needs to know in order to prepare his
case in answer."
Meaning of a Plaint
The word Plaint has not been defined under the code. In a general parlance, it can be said to be
a statement of claim, a document, by presentation of which suit is instituted. Its object is to
state the grounds upon which the assistance of the court is sought by the plaintiff. It is a
pleading of the plaintiff.
Particulars: Rules 1-8
1. The name of the court in which the suit is brought.
2. The name, description, and place of residence of the plaintiff.
3. The name, description, and place of residence of the defendant.
4. Where the plaintiff or defendant is a minor or a person of unsound mind, a statement to
that effect.
5. The facts constituting the cause of action and when it arose.
6. The facts showing that the court has jurisdiction.
7. A statement of the value of the subject-matter of the suit for the purpose of jurisdiction
and court fees.
8. The reliefs claimed by the plaintiff, simply or in the alternative.
9. Where the plaintiff files a suit in a representative capacity, the fact showing that the
plaintiff has an actual existing.
10. Where the plaintiff has allowed a set-off or relinquished a portion his claim, the amount
so allowed or relinquished.
11. Where the suit is for recovery of money, the precise amount claimed.
12. Where the subject-matter of the suit is immovable property a description of the property.
13. The interest and liability of the defendant in the subject-matter of the suit.
14. Where the suit is time-barred, the ground upon which the exemption from the law of
limitation is claimed.
Necessary elements of a Plaint
1. Parties to suit: There must be two parties in every suit, namely, the plaintiff and the
defendant. There may, however, be more than one plaintiff or more than one defendant.
But there must be at least one plaintiff and one defendant in every suit. All particulars,
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such as name, father's name, age, place of residence, etc., which are necessary to
identify the parties, must be stated in the plaint.
2. Cause of action: Every suit presupposes the existence of a cause of action against the
defendant because if there is no cause of action, the plaint will have to be rejected.
Cause of action may be described as a bundle of essential facts, which it is necessary
for the plaintiff to prove before he can succeed. Whether any particular facts constitute
a cause of action must be determined with reference to the facts of each case, taking
into consideration the substance of the matter rather than the form of action.
3. Jurisdiction of court: The plaint must state all the facts showing how the court has
pecuniary and territorial jurisdiction over the subject-matter of the suit. When the
jurisdiction of a court to entertain the suit is disputed by the defendant, the court may
frame the issue to that effect and decide the same before deciding other issues. Plea of
jurisdiction has to be decided on the basis of averments in the plaint.
4. Valuation: The plaintiff must state in the plaint the valuation of the subject-matter of
the suit for the purposes of pecuniary jurisdiction of the court and court fees.
5. Limitation: Rule 6 provides that where the suit is barred by limitation, it is necessary
for the plaintiff to show the ground of exemption in the plaint.
6. Relief: Every plaint must state specifically the relief claimed by the plaintiff either
simply or in the alternative. Where the relief is founded on separate and distinct
grounds, they should be so stated.
Rejection of a Plaint
When a civil suit is being filed in court, the court, under this Code, has an obligation to
determine whether such a suit is maintainable or not. The court may do one of these three things
after determining maintainability:
1. Accept the plaint,
2. Reject the plaint,
3. Return the plaint to the plaintiff or the party filing the suit.
Thus, for the court to fulfil its duty, Order 7 Rule 11, which sets the grounds on which a plaint
should be rejected.
Object of Order 7 Rule 11
The main object of Order 7 Rule 11 is to reject plaints that are of a frivolous, vexatious, and
improper nature at the very beginning, thus saving judicial time and resources. An observation
was made in the case of Azhar Hussain v. Rajiv Gandhi that the main motive of Order 7 Rule
11 is to ascertain that litigation that barely has any meaning or is bound to prove ‘abortive’ is
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not permitted to occupy the time of the courts and exercise the minds of the defendants. Such
remedies are necessary for putting an end to sham litigations to save judicial time.
Kalepu Pala Subrahmanyam v. Tiguti Venkata: a revision petition was dismissed by the
Andhra Pradesh High Court stating that a plaint cannot be rejected in parts. The plaint needs to
be rejected as a whole
Grounds for rejection of a Plaint
1. Where plaint does not disclose cause of action: If the plaint filed by the plaintiff does
not disclose any cause of action, the court will reject it. But in order to reject the plaint
on this ground, the court must look at the plaint and at nothing else. The court has to
find whether plaint discloses real cause of action or illusory cause of action created by
clever drafting. The power to reject a plaint on this ground should be exercised only if
the court concludes that even if all the allegations set out in the plaint are proved, the
plaintiff would not be entitled to any relief. The reading of the plaint should be
meaningful and not formal.
2. Where relief claimed is undervalued: Where the relief claimed by the plaintiff is
undervalued and the valuation is not corrected within the time fixed or extended by the
court, the plaint will be rejected. In considering the question whether the suit is properly
valued or not, the court must confine its attention to the plaint only and should not look
at the other circumstances which may subsequently influence the judgment of the court
as to the true value of the relief prayed for.
3. Where plaint is insufficiently stamped: Sometimes the relief claimed by the plaintiff is
properly valued, but the plaint is written upon a paper insufficiently stamped and the
plaintiff fails to pay the requisite court fees within the time fixed or extended by the
court. In that case, the plaint will be rejected. If the plaintiff cannot pay the court fees,
he may apply to continue the suit as an indigent person.
4. Where suit is barred by law: Where the suit appears from the statements in the plaint to
be barred by any law, the court will reject the plaint. It is the duty of the court to consider
Suo-Motu whether a suit filed is barred by any law.
5. Where plaint is not in duplicate: The plaint has to be filed in duplicate. If the said
requirement is not complied with the plaint will be rejected.
6. Where there is non-compliance with statutory provisions: Where the plaintiff fails to
comply with the provisions of Rule 9, the plaint will be rejected.
7. Other grounds: The grounds for rejection of plaint specified in Rule 11 of Order 7 are
not exhaustive. On other relevant grounds also, a plaint can be rejected.
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Conclusion
The plaint is the first step to filing a suit in court. It needs to be drafted with due diligence. It
must include all the particulars that have been mentioned in Order VII of the Code. Moreover,
the rejection of a plaint, as stated under Order 7 Rule 11, is one of the most beneficial remedies
for saving the precious time of the judiciary, along with safeguarding innocent respondents
from prolonged court cases and the legal struggle associated with them.
Question
What is written statement? When can set-off and counter claim be pleaded?
OR
Elucidate the essentials contents of a written statement.
OR
What is a written statement. What should it contain?
Answer
Introduction
"Pleading" is defined as plaint or written statement.' According to Mogha "Pleadings are
case in answer."
Meaning of a Written Statement
A written statement is the pleading of the defendant wherein he deals with every material fact
alleged by the plaintiff in his plaint and states any new facts in his favour or takes legal
objections against the claim of the plaintiff. Importance of filing a written statement cannot be
underestimated. The reason is that as per settled law, a case different than the one pleaded in
the written statement cannot be set up at trial. The provisions concerning the written statement
are contained in Order VIII of the Code of Civil Procedure.
Authorised person to file W/S
A written statement, is meant to be filed by the defendant. However, the defendant may file it
through an agent authorised by him. It cannot be filed by someone who is not a party to the
dispute. In the case of multiple defendants, there can be a common written statement signed by
all, or at least verified by one of the defendants who is familiar with the facts.
Time limit to file W/S
Order VIII Rule 1 states that the written statement should be filed by the defendant within thirty
days from the day when the summons was served to him. However, this period can be extended
up to ninety days from the date of service of summons by the court for reasons to be recorded
in writing.
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Contents of a W/S
1. W/S should state facts and not law: It is the duty of the defendant to state the facts on
which they rely upon their case. It is for the court to apply the law to the facts pleaded.
This was first held in the case Kedar Lal v. Hari Lal where it was held that the parties
are under the duty to state the facts on which they are claiming their compensation. The
court shall apply the law as per the stated facts to render the judgement. One should not
assert or apply any laws for claiming right on the stated facts.
2. Material Facts: W/S should contain a statement of material facts only. Immaterial facts
shall not be considered. Facts which will form the basis to prove the defendant’s
defence in the written statement will fall under the ambit of being material.
3. Facts and not evidence: W/S should contain a statement of material facts on which the
defendant relies but not the evidence by which those facts are to be proved.
There are two types of facts:
a. Facta probanda: the facts which need to be proved, i.e., material facts
b. Facta probantia: facts by which a case is to be proved, i.e., evidence
Only facts probanda should form the part of pleadings and not facts probantia. The
material facts on which the plaintiff relies for his claim or the defendant relies for his
defence are called facta probanda, and they must be stated in the plaint or in the written
statement, as the case may be.
4. Concise form: W/S should be drafted with sufficient brevity and precision. The material
facts should be stated precisely succinctly and coherently. The importance of a specific
pleading can be appreciated only if it is realised that the absence of a specific plea puts
the defendant at a great disadvantage.
5. New Fact: Order VIII Rule 2 is related to the new facts which should be pleaded. The
rule says that the defendant must have raised the important facts related to the case
which shows that the suit is not maintainable, or the transaction which is in the issue is
made by a void or voidable contract etc. These facts will help the defendant to win the
case because these facts can be related to the limitation and fraud etc.
6. The denial must be specific: It is not sufficient for a defendant in his written statement
to deny generally the grounds alleged by the plaintiff, but he must deal specifically with
each allegation of fact which he does not admit, except damages.
7. The denial should not be vague or evasive: Where a defendant wants to deny any
allegation of fact in the plaint, he must do so clearly, specifically, and explicitly and not
evasively or generally.
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8. Where the defendant relies upon several distinct grounds of defence or set-off or
counterclaim founded upon separate and distinct facts, they should be stated separately
and distinctly.
Other Rules
1. Particulars with dates and items should be stated wherever fraud, misrepresentation,
breach of trust, undue influence or wilful default are pleaded in the pleadings.
2. Wherever malice, fraudulent intention, knowledge, or other condition of the mind of a
person is material, it may be alleged in the W/S only as a fact without setting out the
circumstances from which it is to be inferred.
3. Unless the facts are material, there is no need for the facts to be stated in verbatim.
4. Implied relations between persons or contracts can be alleged as facts and the series of
conversations, letters, and the circumstances from which they are to be inferred should
be pleaded generally.
5. Every W/S should be signed by the party or one of the parties or by his pleader.
6. Each and every W/S need to be approved by making an affidavit by the party or a person
who is acquainted by the facts stated in the pleading.
7. The W/S shall be divided in proper paragraphs whenever required, consecutively
numbered, and structured properly. Every argument or allegations must be in separate
paragraphs. Dates, sums and any totals shall be expressed in figures as well as in words
so as to maintain clarity for the judge as well as the parties concerned in the trial.
Set off
"Set-off" means a claim set up against another. It is a cross-claim which partly offsets the
original claim. It is an extinction of debts of which two persons are reciprocally debtors to one
another by the credits of which they are reciprocally creditors to one another. Where there are
mutual debts between the plaintiff and the defendant, one debt may be settled against the other.
The language of Rule 6(1) is clear and unambiguous. It requires the defendant to claim set-off
at the first hearing of the suit.
A defendant may claim a set-off, if the following conditions are satisfied
1. The suit must be for the recovery of money
2. The sum of money must be ascertained
3. Such sum must be legally recoverable
4. It must be recoverable by the defendant or by all the defendants if more than one;
5. It must be recoverable by the defendant from the plaintiff or from all the plaintiffs, if
more than one
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6. It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
7. Both the parties must fill, in the defendant's claim to set-off, the same character as they
fill in the plaintiff's suit.
Counter Claim
"Counterclaim" may be defined as "a claim made by the defendant in a suit against the
plaintiff". It is a claim independent of, and separable from, the plaintiff's claim which can be
enforced by a cross-action. It is a cause of action in favour of the defendant against the plaintiff.
A counterclaim may be set up by a defendant against a plaintiff in respect of cause of action
accruing either before or after filing of the suit, provided such claim is not barred by limitation.
Conclusion
Order VIII Rule 10 of the Code essentially lay down that if the defendant does not file a written
statement within the time and manner prescribed by the provisions in the Order, the court shall
pass a judgement against him. The provision also makes it clear that the court cannot extend
the one-hundred- and twenty-days duration prescribed under Rule 1 under any circumstances
for commercial disputes.
Question
Explain the general and other rules of pleading.
OR
“Pleading should be confined to facts only. It should not contain law.” Explain.
Answer
Introduction
"Pleading" is defined as plaint or written statement. According to Mogha "Pleadings are
case in answer. The whole objective behind pleading is to narrow down on the issues and
provide a clear picture of the case thereby enhancing and expediting the court proceedings. The
pleadings help both the parties know their point of dispute and where both parties differ so as
to bring forth the relevant arguments and evidence in the court of law.
Rules of Pleadings
Order 6 Rule 2(1) lays down the fundamental principles of pleadings. It can be summarized as
under:
(i) Pleadings should state facts and not law;
(ii) The facts stated should be material facts;
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(iii) Pleadings should not state the evidence; and
(iv) The facts should be stated in a concise form.
1. Pleadings should state facts and not law: It is the duty of the party to state the facts on
which they rely upon their case. It is for the court to apply the law to the facts pleaded.
This was first held in the case Kedar Lal v. Hari Lal where it was held that the parties
are under the duty to state the facts on which they are claiming their compensation. The
court shall apply the law as per the stated facts to render the judgement. One should not
assert or apply any laws for claiming right on the stated facts. A mixed question of law
and fact however, should be specifically pleaded. Similarly, a point of law which is
required to be substantiated by facts should be pleaded with necessary facts.
2. Material Facts: The second principle of pleadings is that they should contain a statement
of material facts only. Immaterial facts shall not be considered. It was decided by the
judge in the case Union of India v. Sita Ram that material facts will be inclusive of all
those facts upon which the plaintiff’s counsel will claim damages or rights as the case
may be or the defendant will put forth his defence. In nutshell, facts which will form
the basis for claiming a right or compensation by the plaintiff or prove the defendant’s
defence in the written statement will fall under the ambit of being material.
3. Facts and not evidence: The third principle of pleadings is that the evidence of facts, as
distinguished from the facts themselves, need not be pleaded. In other words, the
pleadings should contain a statement of material facts on which the party but not the
evidence by which those facts are to be proved.
a. There are two types of facts:
Facta probanda: the facts which need to be proved, i.e., material facts
Facta probantia: facts by which a case is to be proved, i.e., evidence
Only facts probanda should form the part of pleadings and not facts probantia. The
material facts on which the plaintiff relies for his claim or the defendant relies for his
defence are called facta probanda, and they must be stated in the plaint or in the written
statement, as the case may be.
4. Concise form: The fourth and the last general principle of pleadings is that the pleadings
should be drafted with sufficient brevity and precision. The material facts should be
stated precisely succinctly and coherently.
The importance of a specific pleading can be appreciated only if it is realised that the
absence of a specific plea puts the defendant at a great disadvantage. Therefore, the
pleading must be precise, specific, and unambiguous. The words "in a concise form"
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are definitely suggestive of the fact that brevity should be adhered to while drafting
pleadings. Of course, brevity should not be at the cost of excluding necessary facts, but
it does not mean
Other Rules
1. Particulars with dates and items should be stated wherever fraud, misrepresentation,
breach of trust, undue influence or wilful default are pleaded in the pleadings.
2. Generally, departure from pleading is not permissible, and except by way of
amendment, no party can raise any ground of claim or contain any allegation of fact
inconsistent with his previous pleadings.
3. Non-performance of a condition precedent should be specifically mentioned in the
pleadings. Performance of the same shall not form a part of the pleadings since it is
already implied.
4. If the opposite party denies a contract, it will be held as denial of the facts of the contract
and not its validity, enforceability, and legality.
5. Wherever malice, fraudulent intention, knowledge, or other condition of the mind of a
person is material, it may be alleged in the pleading only as a fact without setting out
the circumstances from which it is to be inferred.
6. Unless the facts are material, there is no need for the facts to be stated in verbatim.
7. Pleadings should only state the giving of a notice, when it is required to give a notice
or condition precedent, without disclosing the form or manner of such notice or giving
details of any circumstances from which, the form of notice can be determined, unless
the same is material.
8. Implied relations between persons or contracts can be alleged as facts and the series of
conversations, letters, and the circumstances from which they are to be inferred should
be pleaded generally.
9. The facts which deal with onus of proof or which favours a party shall not be pleaded.
10. Every pleading should be signed by the party or one of the parties or by his pleader.
11. A party to the suit shall provide with his and the opposite party’s address.
12. Each and every pleading need to be approved by making an affidavit by the party or a
person who is acquainted by the facts stated in the pleading.
13. A pleading may be ordered to be strike out by a court of law, if it feels the same is
scandalous, frivolous, unnecessary, or intended towards embarrassing, prejudicing or
delaying a fair trial in the court.
14. Amendment of pleadings shall be allowed by the court
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15. The pleadings shall be divided in proper paragraphs whenever required, consecutively
numbered, and structured properly. Every argument or allegations must be in separate
paragraphs. Dates, sums and any totals shall be expressed in figures as well as in words
so as to maintain clarity for the judge as well as the parties concerned in the trial.
16. Forms in Appendix A of the Code should be used wherever they are applicable. Where
they are not applicable, forms of like nature should be used.
Conclusion
Pleadings form the backbone of any legal suit. The case is set out in the pleading. It guides the
parties to form the arguments and know the contentions of the other party so as to frame claims
or defence by either party respectively. It is guidance in the whole journey of the suit. They
also determine the range of admissible evidence which the parties should adduce at the trial.
The Code of Civil Procedure lays down the fundamental rules of pleadings along with the
amendments to the same. These provisions are aimed to strike a balance in the society and to
achieve the ultimate ends of justice.
Question
Explain the fundamental rules of pleadings. When the amendment of pleading is
permissible.
Answer
Introduction
Rules of Pleadings
Sub-rule (1) of Rule 2 Order 6 lays down the fundamental principles of pleadings. It can be
summarized as under:
i. Pleadings should state facts and not law;
ii. The facts stated should be material facts;
iii. Pleadings should not state the evidence; and
iv. The facts should be stated in a concise form.
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1. Pleadings should state facts and not law: It is the Duty of the party to state money the facts
on which they rely upon their clique. It is for the court to apply the law to the facts pleaded.
This was first held in the case Kedar Lal v. Hari Lal where it was held that the parties are
under the duty to state the facts on which they are claiming their compensation. The court
shall apply the law as per the stated facts to render the judgement. One should not assert
or apply any laws for claiming right on the stated facts. A mixed question of law and fact.
However, should be specifically pleaded. Similarly, a point of law which is required to be
substantiated by facts should be pleaded with necessary facts.
2. Material Facts: The second principle of pleadings is that they should contain a statement
of material facts only. Immaterial facts shall not be considered. It was decided by the
judge in the case Union of India v. Sita Ram that material facts will be inclusive of all those
facts upon which the plaintiff’s counsel will claim damages or rights as the case may be
or the defendant will put forth his defence. In nutshell, facts which will form the basis for
claiming a right or compensation by the plaintiff or prove the defendant’s defence in the
written statement will fall under the ambit of being ‘material’.
3. Facts and not evidence: The third principle of pleadings is that the evidence of facts, as
distinguished from the facts themselves, need not be pleaded. In other words, the pleadings
should contain a statement of material facts on which the party but not the evidence by
which those facts are to be proved.
There are two types of facts:
a) Facta probanda: the facts which need to be proved, i.e., material facts
b) Facta probantia: facts by which a case is to be proved, i.e., evidence
Only facts probanda should form the part of pleadings and not facts probantia. The material
facts on which the plaintiff relies for his claim or the defendant relies for his defence are
called facta probanda, and they must be stated in the plaint or in the written statement, as
the case may be.
4. Concise form: The fourth and the last general principle of pleadings is that the pleadings
should be drafted with sufficient brevity and precision. The material facts should be stated
precisely succinctly and coherently.
The importance of a specific pleading can be appreciated only if it is realised that the
absence of a specific plea puts the defendant at a great disadvantage. Therefore, the
pleading must be precise, specific and unambiguous. The words "in a concise form" are
definitely suggestive of the fact that brevity should be adhered to while drafting pleadings.
Page 39 of 170
Of course, brevity should not be at the cost of excluding necessary facts, but it does not
mean
Amendment of Plaint
The Provision related to Amendment of Pleadings gives power to the civil court to allow parties
to alter, amend or modify the pleadings at any stage of proceedings. Provision for Amendment
of pleadings has been stated in Order 6 Rule 17 of the Code of civil procedure. But the court
will allow amendment only if this amendment is necessary to determine the controversy
between the parties. The purpose of this provision is to promote ends of justice and not to defeat
the law.
The rule confers a very wide discretion on courts in the matter of an amendment of pleadings.
As a general rule, leave to amend will be granted so as to enable the real question in issue
between the parties to be raised in pleadings, where the amendment will occasion no injury to
the party and can be sufficiently compensated for by costs or other terms to be opposite amend.
In the case of Kishandas v. Rachappa Vithoba, the court stated that there are two necessary
conditions to be satisfied before granting leave for amendment of pleadings:
1. This grant of leave should not lead to the injustice to other party.
2. This Amendment of pleadings is necessary for determining the real question of
controversy between parties.
1. The first condition which must be satisfied before the amendment can be allowed by
the court is whether such amendment is necessary for the determination of the real
question in controversy. If that condition is not satisfied, the amendment should not be
allowed. On the other hand, if the amendment is necessary to decide the "real
controversy" between the parties, the amendment should be allowed even though the
court may think that the party seeking the amendment will not be able to prove the
amended plea.
2. The second condition is also equally important, according to which no amendment will
be allowed which will cause injustice to the opposite party. It is settled law that the
amendment can be allowed if it can be made without injustice to the other side. But it
is also a cardinal rule that "there is no injustice if the other side can be compensated by
costs",
Other points on which Amendments of Pleadings is granted:
1. When the application of amendment is filed to avoid multiplicity of suits.
2. When parties in the plaint or written statements wrongfully described.
3. When the plaintiff omits to add some properties to the plaint.
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Conclusion
Question
Explain with illustrations the circumstances under which leave to amend the pleadings
shall be refused?
Answer
Introduction
Rules of Pleadings
Sub-rule (1) of Rule 2 Order 6 lays down the fundamental principles of pleadings. It can be
summarized as under:
(i) Pleadings should state facts and not law;
(ii) The facts stated should be material facts;
(iii) Pleadings should not state the evidence; and
(iv) The facts should be stated in a concise form.
Amendment of Plaint
The Provision related to Amendment of Pleadings gives power to the civil court to allow parties
to alter, amend or modify the pleadings at any stage of proceedings. Provision for Amendment
of pleadings has been stated in Order 6 Rule 17 of the Code of civil procedure. But the court
will allow amendment only if this amendment is necessary to determine the controversy
between the parties. The purpose of this provision is to promote ends of justice and not to defeat
the law.
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Generally, in the following cases, leave to amend will be refused by the court:
1. Leave to amend will be refused where the amendment is not necessary for the purpose
of determining the real question in controversy between the parties. The real
controversy test is the basic test and it is the primary duty of the court to decide whether
such amendment is necessary to decide the real dispute between the parties. If it is, the
amendment will be allowed; if it is not, the amendment will be refused.
Illustration: The leading decision on the point is Edevain v. Cohen. In that case, A's
furniture was wrongfully removed by B and C. A sued B for damages and for judgments
against B. A then sued C for damages for the same wrong. After A's evidence was over,
C applied for amendment of written statement by pleading judgment against B as bar
to suit against him. B and C being wrongdoers, the judgment against B precluded A
from suing C for the same wrong. The application was rejected since it was not
necessary to decide the real question in controversy between the parties but enabled C
to avail for himself the benefit of the technical rule of law.
2. Leave to amend will be refused if it introduces a totally different, new and inconsistent
case or changes the fundamental character of the suit or defence. Whether or not the
proposed amendment changes the character of the suit would depend on the facts and
circumstances of each case considering the nature of the amendment sought.
Illustration: Where the case of the plaintiff throughout was that the property was non-
ancestral, an issue as to the character of property was framed, evidence led and the
finding was recorded that the property was non-ancestral property; the application for
the amendment of the plain alleging that the property was ancestral cannot be allowed
at the appellate stage as it sought to introduce a totally new and inconsistent case.
3. Leave to amend will be refused where the effect of the proposed amendment is to take
away from the other side a legal right accrued in his favour. The rule, however, is not a
universal one and under certain circumstances such an amendment may be allowed by
the court notwithstanding the law of limitation. The fact that the claim is barred by the
law of limitation is but one of the factors to be taken into account by the court in
exercising the discretion as to whether the amendment should be allowed, but it does
not affect the power of the court if the amendment is required in the interests of justice.
Illustration: The English case on the subject is Weldon v. Neal. In that case, A filed a
suit against B for damages for slander. A thereafter applied for leave to amend the plaint
by adding fresh claims in respect of assault and false imprisonment. At the date of the
application, those claims were barred by limitation though they were within the period
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of limitation at the date of the suit. The amendment was refused since the effect of
granting it would be to take away from B the legal right (the defence under the law of
limitation) and thus would cause prejudice to him.
4. Leave to amend will be refused where the application for amendment is not made in
good faith. As a general rule, leave to amend ought not to be granted if the applicant
has acted mala fide. Want of bona fides may be inferred from the circumstances of the
case. When there is no substantial ground for the case proposed to be set up by the
amendment, or the object is to defeat or delay the plaintiff's claim, or merely to reagitate
the same question and lead further evidence, the amendment was not granted as being
bona fide.
Illustration: when, in an earlier proceeding, a compromise decree was passed and had
become final, in a subsequent suit, the plaintiff cannot be allowed to amend his plaint
by permitting him to raise contentions that had not found favour with the court.
Conclusion
Question
What are the rules regarding institutions of suits? Explain
OR
Explain the rules relating to institution of suits under the code of civil procedure.
Answer
Introduction
In common parlance, the term "suit" is taken to include all proceedings of a judicial or quasi-
judicial nature in which the disputes of aggrieved par ties are adjudicated before an impartial
forum.
There are four essentials of a suit:
(i) Opposing parties;
(ii) Subject-matter in dispute;
(iii) Cause of action; and
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(iv) Relief.
Institution of the suit
Rule 1 of Order IV must be read with Section 26 of CPC in extension of the law as provided
in the section. This rule provides that every suit is taken to be duly instituted only when it is
presented by a plaint, in duplicate and presented to either the court directly or to a proper officer
appointed in this behalf. And also, that such plaint must comply with the rules contained in
Order VI & VII
Hence the procedure to institute a suit can be summarized in 3 steps
i. Preparing the plaint
ii. Choosing the proper place of suing
iii. Presentation of the plaint
1. Preparation of a Plaint: The word Plaint has not been defined under the code. In a
general parlance, it can be said to be a statement of claim, a document, by presentation
of which suit is instituted. Its object is to state the grounds upon which the assistance
of the court is sought by the plaintiff. It is a pleading of the plaintiff.
Necessary elements of a Plaint
a) Parties to suit: There must be two parties in every suit, namely, the plaintiff and
the defendant.
b) Cause of action: Every suit presupposes the existence of a cause of action
against the defendant because if there is no cause of action, the plaint will have
to be rejected. Jurisdiction of court: The plaint must state all the facts showing
how the court has pecuniary and territorial jurisdiction over the subject-matter
of the suit.
c) Valuation: The plaintiff must state in the plaint the valuation of the subject-
matter of the suit for the purposes of pecuniary jurisdiction of the court and
court fees.
d) Limitation: Rule 6 provides that where the suit is barred by limitation, it is
necessary for the plaintiff to show the ground of exemption in the plaint.
e) Relief: Every plaint must state specifically the relief claimed by the plaintiff
either simply or in the alternative. Where the relief is founded on separate and
distinct grounds, they should be so stated.
2. Place of Suing: The expression "place of suing" simply means the venue for trial and it
has nothing to do with the competency of the court. Sections 15 to 20 of the Code of
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Civil Procedure regulate the forum for the institution of suits. Section 15 requires the
plaintiff to file a suit in the court of the lowest grade competent to try it.
There are three kinds of jurisdiction to determine the place of suing: -
a) Territorial jurisdictions
b) Pecuniary jurisdictions
c) Subject matter jurisdiction
Whenever the suit is brought before the court the first question is to determine is
whether the court has a jurisdiction to deal with the matter. If the court has all these
(territorial, pecuniary, or subject matter jurisdiction then only the court has the power
to deal with the case. In the case, if the court does not have any of the above-mentioned
factors, then it will be considered as lack of jurisdiction or the irregular exercise of
jurisdiction. When the court who does not have jurisdiction decide the case and give
decision then such decision will be considered as void or voidable depending upon the
different circumstances.
3. Presentation of plaint: A plaint in duplicate must be presented to the court or such
officer as it appoints in that behalf. Generally, the presentation of a plaint must be on a
working day and during the office hours. However, there is no rule that such
presentation must be made either at a particular place or at a particular time. A judge,
therefore, may accept a plaint at his residence or at any other place even after office
hours, though he is not bound to accept it. But if not too inconvenient, the judge must
accept the plaint, if it is the last day of limitation. Thereafter, the particulars of a suit
will be entered 141 by the court in a book kept for the said purpose, called the register
of civil suits. After the presentation, the plaint will be scrutinised by the Stamp
Reporter. If there are defects, the plaintiff or his advocate will remove them. Thereafter
the suit will be numbered.
Registration of Suit
Rule 2 of Order 4 provides that the Court shall cause the particulars of every suit to be entered
in a book to be kept for the purpose and called the register of civil suits. Such entries shall be
numbered in every year according to the order in which the plaints are admitted.
Conclusion
Generic Conclusion
Question
Discuss the different modes of service of summons.
Page 45 of 170
OR
State available methods of service of summons. When a person is avoiding the service of
summon?
OR
Explain the essential ingredients of summons. What are the different modes of service of
summons to defendant?
OR
Explain the different modes of service of summons.
Answer
Introduction
When the plaintiff files a suit, the defendant has to be informed that the suit has been filed
against him, and that he is required to appear in the court to defend it. The intimation which is
sent to the defendant by the court is technically known as summons.
Though summons has not been defined in the Code, according to the dictionary meaning, A
summons is a document issued from the office of a court of justice, calling upon the person to
whom it is directed to attend before a judge or officer of the court for a certain purpose.
Objective of summons
The following are the objectives of summons:
1. It is important to inform a person about any legal action that has been taken against
them.
2. It gives an opportunity to the defendant to present his case and side of the story.
3. The basis of summons lies in the maxim Audi Alteram Partem, which means to hear
both sides.
4. It further helps in following the principles of natural justice and ensures fair proceedings
and trial.
5. It helps in ensuring the presence of either a witness or accused or any other person who
is involved directly or indirectly in a suit before the court.
6. To produce the necessary documents.
Essentials of summons
The essentials of a summon are given under Order 5, Rules 1 and 2 of the code. These are:
1. Every summon must be signed by the judge or any other officer whom he appoints to
do so on his behalf.
2. It must be sealed properly.
3. The court will not issue any summons to the defendant if he has appeared before the
court at the time of the institution of the plaint.
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4. After summons are issued, the defendant is required to file written statements within 30
days. If he fails to do so, he has to provide reasons, and if the court is satisfied, it can
extend the time period to file written statements to not more than 90 days.
5. Another essential element of summons is that every summon must be accompanied by
a copy of the plaint.
6. The format of a summons must be according to the prescribed form given in Appendix
B of the First Schedule under the code.
Contents of summons
Rule 5 to Rule 8 of Order 5 under the code gives the content of summons. A summon must
contain:
1. Information, whether it is issued for settlement of issues or final disposal of the suit.
2. It must contain the date and day fixed for the appearance of the defendant.
3. It also contains the list of necessary documents that a defendant is required to produce
in court.
4. If the summons is issued for final disposal, it must direct the defendant to produce
witnesses on his behalf to support his side.
Mode of service of summons
1. Personal or direct service: Rules 10-16, 18
2. Service by court: Rule 9
3. Service by plaintiff: Rule 9-A
4. Substituted service: Rules 17, 19-20
5. Service by post
A. Personal or direct service: This mode of service of summons is simple. In this mode, a
copy of the summons is issued to the concerned person or his agent or any other person
on his behalf, and the person receiving the summons must acknowledge the same. It is
the duty of the officer serving summons to ensure and make an endorsement with regard
to the summons served that states the time and manner of service, the name and address
of the person receiving the summons, and witness to the delivery of the summons.
Rules 10 to 16 and Rule 18 of the order deal with personal or direct service. While
serving summons through this mode, the following principles must be taken into
consideration:
1. The service officer must try to serve the summons to the defendant or his agent.
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2. If the defendant is not present at his place of residence and there is no agent, then
it must be served on any adult male or female member of the family living with
him on his behalf.
3. If a suit is related to the business or work of a person who does not reside within
the territorial jurisdiction of the court, then it may be served to the manager or agent
of that business or work.
4. In the case of a suit on immovable property, if the defendant is not found, then the
summons may be served on any person or agent who is in charge of such property.
5. If a suit involves two or more defendants, then the summons must be issued to each
of them.
B. Service by the court: Rule 9 of the Order deals with the service of summons by court.
It provides that if a defendant resides within the jurisdiction of the court, then the
summons must be served to him by the court officer. It can also be served by post, fax,
message, email service, approved courier service, etc., but if the defendant does not live
within the jurisdiction, then it must be served by the officer of the court within whose
jurisdiction he resides.
In the case, summons are served by Registered post acknowledgment due (RPAD), the
court will assume the valid service of summons is complete even if there is no
acknowledgement slip. If a person refuses to accept it, the court may treat it as a valid
service.
C. Service by plaintiff: According to Rule 9A of the Order, the court may permit the
plaintiff, on his application, to serve summons to the defendants. He has to deliver the
copy of the summons which is sealed and signed by the judge or any other officer
appointed by the judge to do so, and also make sure that the defendant summons
acknowledges the service. If the defendant refuses to acknowledge the service or if it
cannot be served personally, the court will re-issue the summons and serve it to the
defendant.
D. Substituted service: Substituted service means a mode of service of summons that is
adopted in place of ordinary service of summons. There are two modes of substituted
service as given under Rules 17, 19 and 20 of the Order. These are:
1. If the defendant or his agent refuses to acknowledge or sign the receipt of the
summons, or if the officer serving the summons reasonably believes that the
defendant is not present at his residence and will not be found within a reasonable
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time, and moreover if there is no agent to receive summons on his behalf, he may
affix the copy of the summons on the door or any conspicuous part of his house.
In this case, the serving officer has to make a report stating the reasons for affixing
the summons, the circumstances, the name, and address of the person who helped
him and the witnesses to affixing the summons.
The court can declare that the summons has been issued if it is satisfied with the
report of the officer.
2. If the defendant is deliberately avoiding service and the court has a reason to
believe so, it may affix the summons in some conspicuous place in the court and
house of the defendant where he used to reside, carry on business or work for
somebody. In the case of Yalllawwa v. Shantavva, the Supreme Court held that
this mode of service of summons is not an ordinary mode and must not be used
normally. It must only be used in exceptional cases and treated as the last option.
3. According to Rule 20, if a court orders to advertise the summons in the newspaper,
then it must be done in a local newspaper where the defendant lived, had a business,
or worked. This service is an effective option to serve summons even if the
defendant is not reading it.
E. Service by Post: When an acknowledgment purporting to be signed by the defendant or
his agent is received by the court, or the defendant or his agent refused to take delivery
of summons when tendered to him, the court issuing the summons shall declare that the
summons had been duly served on the defendant. The same principle applies in a case
where the summons was properly addressed, prepaid and duly sent by registered post,
acknowledgment due; and the acknowledgment is lost or not received by the court
within thirty days from the date of issue of the summons. Where the summons sent by
registered post is returned with an endorsement "refused", the burden is on the
defendant to prove that the endorsement is false.
F. Rules 21–30 provide the mode of service of summons in special cases.
Conclusion
Order 5 of the Code of Civil Procedure, 1908 specifically deals with the issue and service of
summons to the defendant. It provides various rules related to the issuance of summons and
their modes of service. It also provides the scenario as to what will happen if a person refuses
the summons.
Question
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Every suit shall include the whole claim in respect of the cause of action. Comment with
illustration.
Answer
Introduction
Every suit must include the whole of the plaintiff's claim in respect of the cause of action, and,
as far as practicable, all matters in dispute between the parties be disposed of finally. The
intention of the legislature under between the parties relating to the same cause of action should
be disposed of in the same suit so as to prevent further litigation.
The provision of Order 2 Rule 2 is based on the cardinal principle of law that a defendant
should not be vexed twice for the same cause. The principle contained in this provision is
designed to counteract two evils, namely, (i) splitting up of claims; and (ii) splitting up of
remedies.
The words "as far as practicable" indicate that in each case the court will have to see whether
it was practicable for the plaintiff so to frame his suit as to include a cause of action which he
had omitted or intentionally relinquished.
Order 2 Rule 2
Order 2 Rule 2 lays down that every suit must include the whole of the claim to which the
plaintiff is entitled in respect of the cause of action and where the plaintiff omits to sue for or
intentionally relinquishes any portion of his claim, he shall not afterwards be allowed to sue in
respect of the portion so omitted or relinquished.
To make the rule applicable, the following three conditions must be satisfied, namely:
(i) The second suit must be in respect of the same cause of action as that on which the
previous suit was based;
(ii) In respect of that cause of action, the plaintiff was entitled to more than one relief; and
(iii) Being thus entitled to more than one relief, the plaintiff without leaves of the court
omitted to sue for the relief for which the second suit has been filed.
Principles
In Mohd. Khalil v. Mahbub Ali, after considering several cases on the point, the Privy Council
laid down the following principles governing bar to a subsequent suit under this rule:
1. The correct test in cases falling under Order 2 Rule 2, is "whether the claim in the new suit
is in fact founded upon a cause of action distinct from that which was the foundation of
the former suit".
2. The cause of action means every fact which will be necessary for the plaintiff to prove if
traversed in order to support his right to the judgment.
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3. If the evidence to support the two claims is different, then the causes of action are also
different.
4. The causes of action in the two suits may be considered to be the same if in substance they
are identical.
5. The cause of action has no relation whatever to the defence that may be set up by the
defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It
refers...to the media upon which the plaintiff asks the Court to arrive at a conclusion in his
favour
Illustrations
1. A lets a house to B at a yearly of rent Rs. 1200. The rent for the whole of the years 1905,
1906 and 1907 is due and unpaid. A sues B in 1908 only for the rent due for 1906. A shall
not afterwards sue B for the rent due for 1905 or 1907.
2. A advances loan of Rs 2200 to B. To bring the suit within the jurisdiction of court X, A
sues B for Rs 2000 only. A cannot afterwards sue for Rs 200.
3. A sues B for Rs 200. Against this claim, B claims set-off for Rs 200 being part of Rs 1200
due to B by A but omits to counterclaim the balance of Rs 1000. B cannot afterwards sue
A for Rs 1000.
Conclusion
The test for finding out whether a subsequent suit be barred because of the previous suit is
whether the claim in the second suit is in fact, founded on a cause of action which was the
foundation of the former suit. If the answer is in the affirmative, the bar of Order 2 Rule 2
would apply. But if it is in the negative, it would not be attracted.
Question
What are "Costs"? Explain the different types of costs awarded in civil cases
Answer
Introduction
According to Black’s Law Dictionary "costs is a pecuniary allowance made to the successful
party, recoverable from the losing party, for his expenses in prosecuting or defending a suit or
a distinct proceeding within a suit". In the Code of Civil Procedure, 1908 the provisions related
to cost are enriched in Sections 35, 35A and 35 B which specifies the costs that courts can place
on parties and under what circumstances.
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Costs are at the discretion of the court. The said discretion must be exercised on sound legal
principles and not by caprice, chance, or humour. No hard and fast rules can be laid down and
the discretion must be exercised considering the facts and circumstances of each case.
Kinds of cost
The code provides for following types of cost:
1. General costs under Section 35 of the code;
2. Miscellaneous costs-Order XX-A of the code;
3. Compensatory costs for false and vexatious claim or defences under Section 35-A and
4. Costs for causing delay under section 35 of the code.
1. General Costs: Section 35 deals with general costs. The object of awarding costs to a
litigant is to secure to him the expenses incurred by him in the litigation. It neither
enables the successful party to make any profit out of it nor punishes the opposite party.
The primary rules in respect of award of general costs are as under:
A. Costs are at the discretion of the court. The said discretion, however, must be
exercised on sound legal principles and not by caprice, chance, or humour.
B. Normally, costs should follow the event and the successful party is entitled to
costs unless there are good grounds for depriving him of that right.
C. Such costs should be real and compensatory and not merely symbolic." It should
act as a deterrent to vexatious, frivolous, and speculative litigations or defences.
D. Provisions relating to costs should not obstruct access to courts and justice.
Costs should not be deterrent to a citizen with genuine or bona fide claim or
defence.
E. "Realistic and practical" costs should not be "fanciful and whimsical" also.
2. Miscellaneous costs: Order 20-A makes specific provision with regard to the power of
the count award costs in respect of certain expenses incurred in giving notices, typing
charges, inspection of records, obtaining copies and producing witnesses
3. Compensatory costs: Section 35-A provides for compensatory costs. This section is an
exception to the general rule on which Section 35 is based, viz. that the "costs are only
an indemnity, and never more than indemnity"." This section is intended to deal with
those cases in which Section 35 does not afford sufficient compensation in the opinion
of the court. Under this provision if the court is satisfied that the litigation was inspired
by vexatious motive and was altogether groundless, it can take deterrent action.
The following conditions must exist before non can be applied:
A. the claim or defence must be false or vexatious;
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B. objections must have been taken by the other party that the claim or defence
was false or vexatious to the knowledge of the party
C. such claim must have been disallowed or withdrawn or abandoned in whole or
in part.
4. Costs for causing delay: Section 35-B is added by the Amendment Act of 1976. It is
inserted to put a check upon the delaying tactics of litigating parties. It empowers the
court to impose compensatory costs on parties who are responsible for causing delay at
any stage of the litigation. Such costs would be irrespective of the ultimate outcome of
the litigation. The payment of costs has been a condition precedent for further
prosecution of the suit, if the party concerned is plaintiff and the defence, if he is a
defendant.
5. Cost of adjournment: As per order XVII rule 1 in every such case the Court shall fix a
day for the further hearing of the suit, and shall make such orders as to costs occasioned
by the adjournment or such higher costs as the Court deems fit. This is a general
provision governing adjournments and it is complementary to section 35-B. The costs
contemplated under this provision need not necessarily be confined to the expenses
incurred by the party for attending the court.
Conclusion
Conclusion “Costs” signifies the sum of money which the court orders one party to pay another
party in respect of the expenses of litigation incurred. Except where specifically provided by
the statute or by rule of Court, the costs of proceedings are in the Court’s discretion.
Question
What are issues? Explain how they are framed, amended, and struck off.
OR
Define the term 'issues'. Explain the provisions relating to framing, amending, and
striking out the issues.
OR
What is meant by issues? How issues are framed? State the powers of the court to
amend or strike out issues.
Answer
Introduction
According to the dictionary meaning, "issue" means a point in question; an important subject
of debate, disagreement, discussion, argument, or litigation. In other words, an issue means a
single material point of fact or law in litigation that is affirmed by one party and denied by the
other party to the suit and that subject of the final determination of the proceedings. According
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to Rule 1(2) of Order 14, material propositions are those propositions of fact or law which a
plaintiff must allege in order to show a right to sue or a defendant must allege in order to
constitute his defence.
Framing of issues
The primary objective of framing issues in a suit is to ascertain the controversy in the suit and
rival contentions between the parties. As per the Order 14 Rule 1(4) of the C.P.C. issues are of
two kinds:
A. Issues of fact
B. Issues of Law.
C. Issues, however, may be mixed issues of fact and law.
According to rule 1, issues are framed and recorded by the court at the first hearing after reading
the plaint, written statement, examining and hearing of parties and their pleaders.
Where the Court finds that the issues cannot be correctly framed without the examination of
some person not before the Court or without the inspection of some document not produced in
the suit, it may adjourn the framing of the issues to a future day (maximum of 7 days)
The issues may be framed by the Court from all or any of the following materials—
A. Allegations made on oath by the parties, or by any persons present on their behalf, or
made by the pleaders of such parties;
B. Allegations made in the pleadings or in answers to interrogatories delivered in the suit;
C. The contents of the documents produced by either party.
Amendment or of issues framed
Rule 5 Order XIV of the CPC, 1908 empowers the civil court to alter, amend or modify the
issues or frame additional issues at any stage of the proceeding before passing a decree. It will
apply in both the cases, i.e., for adding the issue & striking off the issue. Issues can be amended
at any stage of the trail. They can also be amended by appellate or revisional court. In Nagubai
Ammal v. B. Shama Rao, Supreme Court observed that, a trail does not get vitiated on wrong,
improper, or defective issues.
Order VI Rule 17 of the CPC, 1908 permits the court to amend the pleadings of the party
seeking amendment. Only such amendments are allowed which enables the court to decide
what is really at issue between the parties. The only question to be considered by the court is
whether such amendment would be necessary to determine the real controversy between the
parties in the suit. The Amendment of pleadings shall be allowed to bring or to clarify all
matters in issue before the Court because the matter in issue is essential for the determination
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of the suit and henceforth, amendment can be made if granting such amendment really meets
the ends of justice & circumvents further litigation.
Regarding amendment of frame issues, court possesses discretionary power. Court can exercise
this power when no injustice results from amendment of frame issue on that point, which is not
present in pleading. However, it cannot be exercised when it alters nature of suit, permits
making of new case or alters stand of parties through rising of inconsistent pleas.
Thus, no additional issue is required to be framed when the subject matter so raised is already
covered in the existing issues. And if the proposed issue is pure question of law, it has to be
addressed while deciding the suit & there’s no need at entirety to frame any specific issue in
that aspect of the suit. The framing of additional issue should not be permitted to delay & defeat
the just adjudication of the lis. And if any such apprehension is raised then the Court shall take
care of it by restricting the opportunities to adduce evidence.
No prejudice shall be caused to either of the parties by framing additional issues. The Civil
Court shall grant the opportunity to both the parties to put forward their evidences with regard
to those additional issues.
Omission to frame issues
Even though it is the duty of the court to frame proper issues, mere omission to frame an issue
is not necessarily fatal to the suit. Omission to frame an issue is an irregularity which may be
or may not be a material one. If such an omission affects the disposal of the suit on merits, the
case must be remanded to the trial court for a fresh trial.
Where the parties went to trail with full knowledge that a particular point was at issue, they
have not been prejudiced and substantial justice has been done, absence of an issue is not fatal
to the case so as to vitiate the proceedings.
Conclusion
Issues are very important not only for the parties but also for the Court. Thus, framing of issues
is a very important stage of a civil trial. Parties are required to prove or disprove the issues
framed by the court, not the pleading. On the other side, court is also bound to give decision
on each framed issue. Therefore, the Court is not to decide those matters on which no issues
have been framed.
If issues are properly framed, the controversy in the case can be clearly focused and documents
can be properly appreciated in that light. The relevant evidence can also be carefully examined.
Careful framing of issues also helps in proper examination and cross examination of witnesses
and final arguments in the case.
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SHORT ANSWERS
Question
Misjoinder of parties
And
Joinder of parties
And
Difference between miss joinder and non-joinder of parties
Answer
Ans from Parties to the suit
Question
Written Statement
And
Summons
Answer
Ans from respective long answers
Question
Counter claim
Answer
Introduction
The meaning of the term “counter claim” can be interpreted from a bare perusal of Order 8
Rule 6A of the CPC. This rule, along with rules 6B to 6G of the CPC, was inserted after the
enactment of the CPC (Amendment) Act of 1976. This amendment came as a result of the 27th
Law Commission Report, 1964 that emphasized upon conferring the defendant with a right to
file a counter claim.
Meaning of Counter Claim
Counterclaim means a claim made by the defendant in a suit against the plaintiff. It is a claim
independent of, and separable from, the claim of the plaintiff which can be enforced by a cross-
action. Generally, it is a cause of action against the plaintiff but in favour of the defendant. It
is treated as plaint of the defendant against the plaintiff and governed by the rules applicable
to the plaints. A plaintiff may file a written statement against the counterclaim of the defendant.
According to the wording of Rule 6A, CPC there are three essential situations as to when the
counter-claim can be filed, which can be found listed as follows:
 “Before or after filing the suit, but
 before the defendant has delivered his defence, or
 before the time limited for delivering his defence has expired.”
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The main objects of counterclaim are as follows: -
1. For the save the time of the courts,
2. For avoiding the multiplicity of the suit,
3. For excluding the inconvenience to the parties to the litigation,
4. For deciding the all disputes between the same parties to avoid the multiplicity of the suit,
5. To avoid prolong trials, etc.
Modes of setting up counterclaim
There are three modes of pleading or setting up a counterclaim in civil suits, which are as
follows: -
1. In the written statement filed under Order 8 Rule 1;
2. By amending written statement with the leave of the court and setting up counterclaim;
3. In a subsequent pleading under Order 8 Rule 9.
Effect of counterclaim
Under this rule a counterclaim has the effect of a cross- suit and the court can pronounce a final
judgment both in the original claim and the counterclaim. Counterclaim of the defendant will
be treated as a plaint and the plaintiff can file a written statement in answer to the counterclaim
of the defendant and the rules of the file a plaint will also apply to it. Similarly, a reply filed in
answer to a counterclaim shall be treated as a written statement and governed by the rules of
the written statement.
In a case where even if the suit of the plaintiff is stayed, discontinued, dismissed, or withdrawn,
the counterclaim will be decided on merits, and the defendant will have entitled to get a decree
for a counterclaim as claimed in the written statement. In the case where the plaintiff does not
file any reply to the counterclaim, the court may pronounce the judgment against the plaintiff
in relation to the counterclaim filed by the defendant.
Conclusion
The code of Civil Procedure makes it clear that the counterclaim has to be treated as a cross-
suit and to be tried along with the original claim and it will be governed by the rules of the
pleading. It will also be considered as plaint of the defendant against the plaintiff. The
counterclaim only will be admitted where a separate suit can be filed on that matter of the
counterclaim. It changes the position of the plaintiff and defendant vice-versa.
Question
Set Off
Answer
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Introduction
The concept of set off, is a claim set up against the plaintiff which has the effect of reduction
or discharge of a party’s debt or claim. In other words, it is a cross-claim which partly offsets
the original claim. Where there are mutual debts between the plaintiff and the defendant, one
debt maybe settled against the other. It is a plea which is available to the defendant for his
defence in a suit instituted by the plaintiff.
Legal requirements
Under Order VIII Rule 6, in order for a defendant to take the plea of set off against the plaintiff,
a number of conditions are to be satisfied which are as follows:
 The suit filed by the plaintiff must be for the purposes of recovery of money.
 The money to be recovered must of a sum which is ascertainable.
 The same sum must be legally recoverable by the defendant from the plaintiff.
 The sum legally recoverable must not exceed the pecuniary jurisdiction of the court in
which the suit by the plaintiff against the defendant is filed.
 Both the parties, i.e., the defendant and the plaintiff must fill the same character as they
fill in the plaintiff’s suit
Types Of Set-Off
In law, Set-Off is generally understood as of two types i.e., Legal Set-Off and Equitable Set-
Off. Rule 6 of order 8 provides solely for legal set-off.
1. Legal Set-Off: A defendant can plead for a legal set-off if he or she finds that the plaintiff
owes them debt too and decides to deduct that sum of money to lessen their own debt.
Illustration: A sues B for compensation on account of trespass. B holds a promissory note
for Rs. 1000 from A and claims to set off that amount against any sum that A may recover
in the suit. B may do so. As soon as A recovers, both sums are definite pecuniary demands.
2. Equitable Set-Off: Equitable set-off refers to a claim of set-off of an unascertained sum of
money where both the plaintiff’s and the defendant’s claim arise out of the same
transaction or are connected in nature and circumstance.
Illustration: A sues B to recover Rs. 50,000 under a contract, B can claim set off towards
damages sustained by him due to breach of the same contract by A.
Effect of set off
In a case where set off is claimed by the defendant in a suit instituted by the plaintiff, the written
statement filed by the defendant works as and has the same effect as that of a plaint in a different
suit. This written statement effectively acts as a cross suit against the plaintiff although the
requirement for filing a separate suit is not there. In other words, the court has two suits in a
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case where set off is claimed, but the same are tried together as a single suit and no separate
suit number lies for the same. The same is also stated under clause (2) of Rule 6 Order VIII,
CPC.
Where the plaintiff does not appear and his suit is dismissed for default, or he withdraws his
suit, or he fails to substantiate his claim at the trial and his suit is dismissed, it does not affect
the claim for a set off by the defendant and a decree may be passed in favour of the defendant
if he is able to prove his claim.
Conclusion
Set off was introduced so that a defendant can use it as a plea of defence suit. It is a cause of
action against the plaintiff’s claim. Legal set-off and Equitable set-off both serve as a path to
protect the interest of the defendant. Though, a defendant can also seek relief through a
counterclaim too, which was incorporated by the Amendment Act of 1976. It is a cross-suit as
in a plaint against the plaintiff. We can say, a set-off is a shield of defence, Counter-claim is a
strong weapon of offence for the defendant.
Question
Cause of action
Answer
Introduction
Cause of action is an important aspect of the plaint on which it is based. If there is no cause of
action in the plaint, it will have to be rejected. Without a cause of action, Civil Suit cannot
arise. Therefore, a cause of action is essential to Civil suit by its nature. The Cause of Action
consists of the set of facts or allegations that make up the grounds for filing a lawsuit against
the defendant. The term Cause of Action has not been defined in the Code of Civil Procedure.
Cause of Action
A Cause of Action, in law, is a bundle of facts sufficient to justify a right to sue to obtain
money, property, or the enforcement of a right against another party. The legal document which
carries a claim is often called a “statement of claim” in English law, or a ‘complaint in the U.S.
Cause of Action is a bundle of facts which are required to be pleaded and proved for the
purpose of obtaining relief claimed in the suit. For the above-stated purpose, the material facts
are required to be stated but not the evidence except in certain cases where the pleading relied
on any misrepresentation, fraud, and breach of trust, wilful default or undue influence.
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Cause of Action is, which gives occasion for and forms the foundation of the suit. If that cause
of action enables a person to ask for a larger and wider relief than to which he limits his claim,
he cannot afterward seek to recover the balance by independent proceedings.
In the case of Sidramappa vs. Rajashetty it was held that the expression “cause of action” with
regard to a civil matter means that it should be left to the litigant for institute case at Lucknow
Bench or at Allahabad Bench according to the cause of action arising wholly or in part within
either of the areas.
A cause of action usually involves both legal theory (the legal wrong) and remedy (the relief).
Cause of Action may be multiple in a suit. The cause of action is essential to a suit represented
in Order II Rule 2 of the Code wherein it is stated that a plaint must mention the cause of action.
Important of Cause of Action
It is an essential part of the lawsuit and consist the bundle of fact of the claim of the plaintiff
from the court against the defendant. It is the centre of the suit. It consists of the following: -
1. Substantive right existing in the plaintiff,
2. The violation of that right by the defendant.
It is a pivot of the entire suit as all the factors such as the settlement of issue, the evidence to
be taken up on and the judgment to be pronounced and also the settlement of matter in issue
etc. is all depends upon the cause of action. Cause of action should be clearly stated by the
plaintiff and the burden of proof also lies upon the plaintiff to prove his cause of action beyond
doubt.
Conclusion
Cause of action is the heart of the complaint, without which a suit can be dismissed. It is not
sufficient merely to state the certain events or facts occurred that entitles the plaintiff to relief
but mention all the elements of each cause of action in detail in the complaint. So, the cause of
action means a bundle of the facts or allegations that constitutes the grounds for filing a lawsuit.
Question
Substituted service
Answer
Introduction
When the plaintiff files a suit, the defendant has to be informed that the suit has been filed
against him, and that he is required to appear in the court to defend it. The intimation which is
sent to the defendant by the court is technically known as summons.
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Though the said expression (summons) has not been defined in the Code, according to the
dictionary meaning," "A summons is a document issued from the office of a court of justice,
calling upon the person to whom it is directed to attend before a judge or officer of the court
for a certain purpose."
Objective of summons
The following are the objectives of summons:
1. It is important to inform a person about any legal action that has been taken against
them.
2. It gives an opportunity to the defendant to present his case and side of the story.
3. The basis of summons lies in the maxim “Audi Alteram Partem”, which means to
hear both sides.
4. It further helps in following the principles of natural justice and ensures fair
proceedings and trial.
5. It helps in ensuring the presence of either a witness or accused or any other person
who is involved directly or indirectly in a suit before the court.
6. To produce the necessary documents.
Mode of service of summons
1. Personal or direct service: Rules 10-16, 18
2. Service by court: Rule 9
3. Service by plaintiff: Rule 9-A
4. Substituted service: Rules 17, 19-20
5. Service by post
Substituted service: Substituted service means a mode of service of summons that is adopted
in place of ordinary service of summons. There are two modes of substituted service as given
under Rules 17, 19 and 20 of the Order. These are:
a. If the defendant or his agent refuses to acknowledge or sign the receipt of the summons, or
if the officer serving the summons reasonably believes that the defendant is not present at
his residence and will not be found within a reasonable time, and moreover if there is no
agent to receive summons on his behalf, he may affix the copy of the summons on the door
or any conspicuous part of his house.
In this case, the serving officer has to make a report stating the reasons for affixing the
summons, the circumstances, the name and address of the person who helped him and the
witnesses to affixing the summons.
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The court can declare that the summons has been issued if it is satisfied with the report of
the officer.
b. If the defendant is deliberately avoiding service and the court has a reason to believe so, it
may affix the summons in some conspicuous place in the court and house of the defendant
where he used to reside, carry on business or work for somebody. In the case of Yalllawwa
v. Shantavva (1997), the Supreme Court held that this mode of service of summons is not
an ordinary mode and must not be used normally. It must only be used in exceptional cases
and treated as the last option.
c. According to Rule 20, if a court orders to advertise the summons in the newspaper, then it
must be done in a local newspaper where the defendant lived, had a business, or worked.
This service is an effective option to serve summons even if the defendant is not reading it.
Question
Verification Of Pleadings
Answer
As a general rule, every pleading must be signed by the party or by one of the parties or by his
pleader. But if the party is unable to sign the pleading, it can be signed by any person authorized
by him. Similarly, every pleading must be verified by the party or by one of the parties pleading
or by some other person acquainted with the facts of the case. The person verifying the pleading
must specify what paragraphs he verifies upon his knowledge and what paragraphs he verifies
upon information received by him and believed by him to be true. The verification must be
signed on an affidavit by the person verifying and must contain the date on which and the place
at which it was signed. The person verifying the pleading should also furnish an affidavit in
support of his pleadings,
The object underlying this provision is to fix upon the party verifying or on whose behalf
verification is made the responsibility for the statement that it contains, and to prevent as far as
possible disputes as to whether the suit was instituted or defended with the knowledge or
authority of the party, who has signed the verification or on whose behalf it has been signed.
Rule 14-A as added by the Amendment Act of 1976 requires a party to the suit to supply the
address for service of notice. It further provides for the stay of suit of the plaintiff or striking
off defense of the defendant in case the address supplied by him is found to be incomplete,
false or fictitious.
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A defect in the matter of signing and verification of pleadings is merely an irregularity and can
be corrected at a later stage of the suit with the leave of the court and a suit cannot be dismissed
nor an order be passed against a party on the ground of defect or irregularity in signing or
verification plaint or written statement.110 Similarly, if the affidavit filed by the party is
defective, a court, instead of rejecting it, may give an opportunity to the party to file a proper
affidavit.
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UNIT 3
LONG ANSWERS
Question
What is an ex-parte decree? State the remedies available against it.
Answer
Introduction
‘Audi Alteram Partem’ is a Latin phrase that means, “Listen to both sides” and it is one of the
principles of natural justice. Every party has a right to a fair hearing. If any party does not
appear on the prescribed date, the court will issue summons and notices to appear before the
court. When, during the proceedings of a civil suit, a plaintiff was present and the defendant
was not present, and the summons was issued, then the court could proceed against the
defendant and pass an ex-parte decree. The court has jurisdiction to pass an ex-parte decree
under Order 9 Rule 6 of the CPC.
Meaning of Ex-Parte Degree
An ex parte decree is a decree passed in the absence of the defendant. Where the plaintiff
appears and the defendant does not appear when the suit is called out for hearing and if the
defendant is duly served, the court may hear the suit ex parte and pass a decree against him.
Such a decree is neither null and void nor inoperative but is merely voidable and unless and
until it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable
like a bi-parte decree and it has all the force of a valid decree.
Remedies against ex-parte degree

The defendant, against whom an ex parte decree has been passed, has the following remedies
available to him:
1. to apply to the court by which such decree is passed to set it aside: Order 9 Rule 13; or
2. to prefer an appeal against such decree: Section 96(2); or
3. to file a revision under Section 115 where no appeal lies; or
4. to apply for review: Order 47 Rule 1; or
5. to file a suit on the ground of fraud.
A: Setting aside an ex-parte decree under Order 9 Rule 13 CPC
A defendant can make an application under this order because the summons had not been
served properly and he had sufficient grounds for the nonappearance before the court. The
defendant has a thirty days’ time period to apply, setting aside the suit.
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 Summons duly not served well: When the suit is filed in court, from the filing date of
the suit to thirty days afterwards, the summons must be served to the defendant. But
there are certain scenarios, such as the postal address being incorrect or changed, where
the plaintiff has not paid the fees. When the summons is not served properly to the
defendant or the defendant does not get enough time to appear before the court. Then
the court may set aside the ex parte decree. In Gauhati University v. Shri Niharlal
Bhattacharjee, the Supreme Court stated that when the summons was not served
properly, the limitation period begins when the appellant knew of the ex parte decree.
 Sufficient cause: When the court finds sufficient grounds for the non-appearance of the
defendant, the court will set aside the ex parte decree. The term ‘sufficient cause’ is not
defined in the code. The court will determine through its interpretation in different
cases. The defendant has the burden of proof to prove sufficient cause for non-
appearance in court. In Parimal v. Veena @ Bharti, the Supreme Court stated that the
term ‘sufficient cause’ means the defendant did not act negligently and genuinely
wanted to be present when the case was summoned for hearing and used his best effort
to do so.
B: An appeal under Section 96(2) CPC
The defendant can also make an appeal against the ex parte decree under Section 96 (2) of the
Code before the special bench of the High Court. The defendant has a statutory right to appeal
under Section 96 (2) of the Code and it cannot be denied because the application filed under
Order 9 Rule 13 was dismissed.
In Bhivchandra Shankar More v. Balu Gangaram More and others, the Supreme Court held
that the right to appeal is a statutory and substantive right of the party, and such rights cannot
be taken away from the defendant. Hence, the defendant can use both the remedies application
under Order 9 Rule 13 and the appeal under Section 96 (2) of the Code.
C: Revision application under Section 115 CPC
When there is no appeal available against the decree, the defendant can file a revision
application under Section 115 of the Code in the High Court. The High Court has the authority
to examine the orders and decrees passed by its subordinate courts when the subordinate court
fails to exercise its jurisdiction and fails to settle the matter, or when the subordinate court does
not have jurisdiction over the matter.
D: Review application under Order 47 Rule 1 CPC
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The defendant can apply to Order 47 Rule 1 and Section 114 of the Code to review the order
passed by the court. A review application can be filed when there is some new evidence
discovered, any fault discovered by the court, or any sufficient cause. Any aggrieved party can
file a review application against whom a decree has been passed, and an appeal is allowed from
that decree, but no appeal is filed. A review application shall be filed within thirty days after
the decree has passed.
E: Suit on the grounds of fraud
A defendant can file a suit if the plaintiff obtained an ex parte decree by committing fraud
against the defendant. The burden of proof is on the defendant to prove in the court the ex parte
decree that has been passed is fraudulent. If it is proved in the court that the suit filed by the
plaintiff does not disclose the cause of action or the suit is barred by the limitation act, the court
can reject the plaint filed by the plaintiff.
Conclusion
The appearance of the parties in court is essential. The parties can present themselves or their
legal representative in court to represent the case. If both parties were not present, the court
could dismiss the suit. If the defendant ignores the court’s notices and fails to appear in court,
the court will send the summons to the defendant. The court will pass an ex parte decree.
Defendants have certain remedies against the ex parte decree. If the defendant proves sufficient
grounds for non-appearance in court, the court will then set aside the ex parte decree. A fair
hearing is the principle of natural justice. And the court will make sure that no injustice will be
done to any of the parties. Hence, it is necessary to prevail so that both parties can get equal
opportunities to present their case in court.
Question
Explain the consequences of appearance and non-appearance of parties in suits.
Answer
Introduction
Every proceeding as far as possible must be carried on in the presence of parties as a general
principle of law. Order IX of the Code of Civil Procedure lays the laws regarding the
appearance of parties and what are the consequences of the non-appearance of parties.
Appearance of parties to the suit
As stated under Rule 1 of Order IX of the Code of Civil Procedure, the parties to the suit are
required to attend the court either in person or by their pleaders on the day which has been
fixed in the summons. If the plaintiff or a defendant, when ordered to appear in person, do not
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appear before the court and neither show the sufficient cause for his non-appearance, the court
is empowered under Rule 12 of Order IX as follows.
1. If the plaintiff does not appear, dismiss the suit.
2. If the defendant does not appear, pass an ex-parte order.
Non-appearance of both parties to the suit
When neither the plaintiff nor the defendant appears before the court when the suit is called for
hearing, then the court is empowered to dismiss the suit under Rule 3 of Order IX. The
dismissal of the suit under this rule does not put a bar on filing a fresh suit on the same cause
of action as per Rule 4. The plaintiff can also apply for setting aside the dismissal if he is able
to satisfy the court that there was sufficient behind his non-appearance. If the court is satisfied
with the cause of non-appearance then it may set aside the order of dismissal and schedule a
day for the hearing of the suit.
Appearance of the plaintiff
When only the plaintiff appears but the defendant does not appear, then an ex-parte order can
be passed against the defendant. But the plaintiff has to prove that the summons was served to
the defendant.
If service of the summons is proved then only the court can proceed for an ex-parte against the
defendant and the court may pass a decree in favour of the plaintiff. This provision applies only
for the first hearing and not for the subsequent hearings of the matter.
Even while passing an ex-parte order, it is the duty of the court to secure the end of justice even
in the absence of the defendant. This provision of passing ex parte order cannot be passed when
there are more than one defendants in the case and any of them appears.
a. Summons was duly served: Where it is proved that summons is duly served upon the
defendant, but he fails to appear, the court may proceed to hear the suit ex parte.
In the leading case of Sangram Singh v. Electional Tribunal, the Supreme Court ruled that
the words "court may proceed ex parte" is an enabling provision and not direction to the
court to proceed ex parte. A general rule founded on the principles of natural justice is that
proceedings in a court of justice should not be conducted behind the back of any party.
The discretion conferred on the court has to be judicially exercised.
b. Where summons is not duly served: It is a fundamental rule of the law of procedure that a
party must have a fair and reasonable opportunity to represent his case. And for that
purpose, he must have a notice of the legal proceedings initiated against him. The service
of summons on the defendant is, therefore, a condition precedent to a fair trial. If the
summons is not served on the defendant or it does not give him sufficient time to represent
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his case effectively, no decree can be passed against him." Rule 2 of Order 9 enacts that
the suit may be dismissed where the summons is not served on the plaintiff's failure to pay
costs for service of summons to defendant or to present copies of the plaint.
Where it is not proved that the summons is duly served on the defendant, the court will
direct a fresh summons to be issued and served on the defendant. Where it is proved that
the summons is duly served on the defendant but there was not sufficient time to enable
him to appear and answer on the day fixed in the summons, the court shall postpone the
hearing of the suit to a future day and give notice of such day to the defendant.37 Where
the summons is not duly served or is not served in sufficient time due to the plaintiff's
default, the court shall order the plaintiff to pay the costs occasioned by such
postponement." 38
Appearance of defendant
The provisions laid down to deal with the appearance of only the defendant has been laid down
from &ales 7-11 of Order IX. When the defendant appears but there is non-appearance of the
plaintiff, then there can be two situations:
1. The defendant does not admit the claim of the plaintiff, either wholly or any part of it.
2. The defendant admits the plaintiff claim.
If the defendant does not admit the claim of the plaintiff, then the court shall order for dismissal
of the suit. But, when the defendant admits completely or any part of the claim made by the
plaintiff then the court is empowered to pass a decree against the defendant on the ground of
such admission and for rest of the claim, the suit will be dismissed.
Dismissal of the suit of the plaintiff without hearing him is a serious matter and it should not
be adopted unless the court gets satisfied that in the interest of justice such dismissal is required.
When the plaintiff does not appear because of death, the court has no power to dismiss the suit.
Even if such order is passed it will amount to a nullity as held in the case of P.M.M. Pillayathiri
Amma v. K. Lakshi Amma.
Application to set aside the dismissal
When the suit has been dismissed on the ground of non-appearance of the plaintiff then he can
make an application to set aside the order of dismissal. If the court is satisfied with the reason
of non-appearance as a sufficient cause then the court can set aside the order dismissing the
suit and fix a day for the proceeding of the suit.
Conclusion
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The appearance and non-appearance of parties have an effect on the case and whether it will
be carried on for the next hearing, dismissed or an ex-parte decree will be given. When none
of the parties appears then the suit can be dismissed by the court. The suit is carried on for the
next hearing only when both parties appear before the court.
Question
Define the terms judgement and decree and state the difference between the judgement
and decree.
Answer
Introduction
“Law” implies the system of rules and regulations, which are based on different principles of
justice, fairness and equality, so as to govern human activities. In law, Decree implies the legal
and formal order, which specifies the rights and obligations of the parties concerned. On the
other hand, the judgement refers to the decision taken by the judge, on the premise of order or
decree.
Meaning of Decree
The term decree is defined in Section 2(2) of Code of Civil Procedure, 1908. The decree is a
formal expression of an adjudication in which the court expressing it, conclusively determines
the rights of the parties. The rights determined are with regard to all or any of the matters in
controversy in the suit and may be either preliminary or final.
In order that a decision of a court may be a "decree", the following elements must be present:
1. There must be an adjudication;
2. Such adjudication must have been done in a suit;
3. It must have determined the rights of the parties with regard to all or any of the matters in
controversy in the suit;
4. Such determination must be of a conclusive nature; and
5. There must be a formal expression of such adjudication.
Classes of decrees
The Code recognises the following classes of decrees:
(i) Preliminary decree: Where an adjudication decides the rights of the parties with regard
to all or any of the matters in controversy in the suit, but does not completely dispose
of the suit, it is a preliminary decree.
(ii) Final decree: decree: A decree may be said to be final in two ways:
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1. when within the prescribed period no appeal is filed against the decree or the
matter has been decided by the decree of the highest court; and
2. when the decree, so far as regards the court passing it, completely disposes of
the suit.
(iii) Partly preliminary and partly final decree: A decree may be partly preliminary and
partly final, e.g., in a suit for possession of immovable property with mesne profits,
where the court: (a) decrees possession of the property; and (b) directs an enquiry into
the mesne profits.
Meaning of Judgement
The term Judgement is defined in Section 2(9) of the Code of Civil Procedure, 1908. A
judgement contains facts of the case, the issues involved, the evidence brought by the parties,
finding on issues (based on evidence and arguments). According to Order XX Rule 2 of CPC,
judgement shall be pronounced in written form and it is not to be pronounced by his
predecessor.
Order XX Rule 3 says, the judge has to sign the judgement at the time of pronouncing it and
the judgement shall be dated. After the judgement has been signed it shall not be altered or
amended afterwards except by way of section 152 which allows clerical or arithmetical
mistakes or errors to be changed or on review the judgement can be altered or amended as per
Section 114 Code of Civil Procedure, 1908.
Order XX Rule 6B of the Code of Civil Procedure, 1908 provides that when a judgement is
pronounced, the copies of the judgement shall be made available to the parties immediately
after the judgement has been pronounced for going for an appeal on payment of such charges
as may be specified in the rule made by the high court.
Contents of the judgement
According to Rule 4 Order XX of Code of Civil Procedure, 1908: Judgments of other Courts
shall contain:
 Summary of the pleadings which is a concise statement of the case;
 Issues which are the points for determination;
 Findings on each issue and the decision thereon;
 Ratio decidendi (reasons for such a decision); and
 The remedy, which is the relief granted.
In State of T.N vs S. Thangavel, the Supreme Court held that an order passed by a Central
Administrative Tribunal cannot be said to be judgement, even if it has been described as such.
Difference between judgement and decree
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Basis for Judgement Decree
comparison
Meaning Judgement is a statement given by the A decree is something which
judge which adjudicates all the issues declares the consequences of the
concerning the lawsuit and specifies suit and specifically determines the
the rights and liabilities of the parties. rights and liabilities of the parties.
Defined in Section 2(9) of the Code of Civil Section 2(2) of the Code of Civil
Procedure, 1908. Procedure, 1908.
Nature Final Preliminary, final, or partly
preliminary and partly final.
Part of the Concluding part Operating part
suit
Passed in Both civil and criminal cases Civil cases only
Appealable No Yes
Sequence First Second
Formal Desirable Necessary
Expression
Execution Not capable of execution Capable of execution
Conclusion
Decree is always followed after pronouncement of judgement so it can be said that judgement
is the set and decree is its sub set. A decree can be of three kinds which are; preliminary, final
or partly preliminary and partly final. The procedure for execution of a decree has been
provided under Order XXI of the Code of Civil Procedure. After passing of the decree, the suit
stands disposed of since the rights of the parties are finally determined by the court. Judgement
stands on a different footing from order and decree.
Question
Discuss about 'arrest before judgement'
Answer
Generally, a creditor having a claim against his debtor has first to obtain a decree against him
and then execute the said decree by having him arrested or his property attached in execution
under the provisions of Order 11. Under special circumstances, however, the creditor can move
for the arrest of the debtor or for the attachment of his property even before the judgment.
The object underlying these provisions is to enable the plaintiff to realise the amount of decree
if one is eventually passed in his favour and any to prevent any attempt on the part of the
defendant to defeat the execution of such decree passed against him.
Grounds for arrest before judgement
1. Rule 1: Where at any stage of the suit, the court is satisfied, either by affidavit or
otherwise,
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(a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the
court, or to obstruct or delay the execution of any decree that may be passed against
him, (i) has absconded or left the local limits of the jurisdiction of the court, or (ii) is
about to abscond or leave the local limits of the jurisdiction of the court, or (iii) has
disposed of or removed from the local limits of the jurisdiction of the court his property
or any part thereof, or
(b) that the defendant is about to leave India under circumstances affording reasonable
probability that the plaintiff will or may thereby be obstructed or delayed in the
execution of any decree that may be passed against the defendant in the suit, the court
may issue a warrant to arrest the defendant and bring him before the court to show cause
why he should not furnish security for his appearance." The defendant shall not,
however, be arrested if he pays to the officer entrusted with the execution of the warrant
any sum specified in the warrant as sufficient to satisfy the plaintiff's claim.
2. Security: Rules 2-4: Where the defendant fails to show cause why he should not furnish
security for his appearance, the court shall order him either to deposit in court money
or other property sufficient to answer the claim against him, or to furnish security for
his appearance at any time when called upon." The court has discretion as to the manner
as also the amount of security."
Where the defendant fails to furnish security or to find fresh security, the court may
commit him to civil prison until the decision of the suit, or, where a decree is passed
against him, until the decree has been executed."
Conditions
An application for arrest may be made by the plaintiff at any time after the plaint is presented,
even before the service of summons is effected on the defendant. However, before this
extraordinary power can be exercised, the court must be satisfied about the following two
conditions:
(a) The plaintiff's suit must be bona fide and his cause of action must be prima facie
unimpeachable subject to his proving the allegations in the plaint; and
(b) the court must have reason to believe on adequate materials that unless this extraordinary
power is exercised there is a real danger that the defendant will remove himself or his
property from the ambit of the powers of the court.
Satisfaction of the court to order arrest of the defendant must be evident from the order itself.
It cannot be overlooked that the liability of the defend ant for payment of any amount arises
only after a decree is passed against him and not before. Rule 1 contemplates extraordinary
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circumstance which allows arrest before judgment. Reasons in support of such order, therefore,
must be recorded by the court."
Limitation for arrest before judgement
An order for arrest of a defendant before judgment cannot be obtained in any suit for land or
immovable property specified in clauses (a) to (d) of Section 16 of the Code," Arrest before
judgment also cannot be allowed to convert unsecured debt into a secured debt or to ensure
easy execution of decree,
Arrest on insufficient grounds: Section 95
Where in any suit in which an order of arrest of the defendant has been obtained on insufficient
grounds by the plaintiff, or where the suit of the plaintiff fails and it appears to the court that
there was no reasonable or probable ground for instituting it, on application being made by the
defendant, the court may order the plaintiff to pay as compensation such amount, not exceeding
fifty thousand rupees, as seems reasonable to the defendant for the expense or injury including
injury to reputation caused him.
Conclusion
Arrest before judgment is a drastic and extraordinary remedy. The provision of Order 38 Rule
1, hence, should be construed strictly. It can neither be used as a lever for the plaintiff to coerce
the defendant to come to terms, nor the power can be exercised to secure easy execution of the
decree. It cannot be granted on mere asking.
Question
Whether death of a party to a suit abate the legal proceedings? Explain applying rules
under order XXII of CPC 1908.
Answer
Order 22 deals with the creation, assignment or devolution of interest during the pendency of
suits. It also applies to appeals, but not to execution proceedings. The provisions of Order 22
are exhaustive. They should, however, be liberally construed to serve the end of justice.
Such creation, assignment or devolution may arise in the following circumstances:
i. Death of a party (rule 1 to 6, 10A)
ii. Marriage of a party (rule 7)
iii. Insolvency of a party (rule 8) or;
iv. Assignment of interest (rule 10)
Right to sue
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The expression "right to sue" has not been defined in the Code, but it may be interpreted to
mean "right to seek relief". In other words, "right to sue" survives if the cause of action survives
or continues.
The general rule is that all rights of action and all demands whatsoever, existing in favour of
or against a person at the time of his death, survive to or against his representatives. But in
cases of personal actions, i.e., actions where the relief sought is personal to the deceased or the
rights intimately connected with the individuality of the deceased, the right to sue will not
survive to or against his representatives.
Death of a party
Death, defined by Merriam Webster dictionary as, “a permanent cessation of all vital
functions”. In simpler terms, it means when someone departs from the world and ceases to be
a member of the living community, we say they are dead. Their physical and intellectual
capabilities become null and all that remains of them are decaying flesh. Order 22, Rules 1-6,
9 and 10-A relate to death of a party, i.e., plaintiff or defendant and consequences of such death.
1. Death of plaintiff: Where the sole plaintiff dies, the suit will not abate, if the right to
sue survives. It can be continued by the heirs and legal representatives of the deceased
plaintiff. If the right to sue does not survive, the suit will come to an end.
Where one of the several plaintiffs dies and the right to sue survives to the surviving
plaintiff or plaintiffs, the court will make an entry to that effect and proceed with the
suit by the surviving plaintiff or plaintiffs." Where one of the several plaintiffs dies and
the right to sue does not survive to the surviving plaintiff or plaintiffs or where the sole
plaintiff dies and the right to sue survives, the court on an application by the legal
representative of the deceased plaintiff will make him a party and proceed with the suit.
Where no such application is made within the period of limitation (ninety days), the
suit shall abate so far as the deceased plaintiff is concerned. On an application by the
defendant, the court may award costs, which might have been incurred by him in
defending the suit, from the estate of the deceased plaintiff."
Where the plaintiff dies after hearing and before pronouncement of judgment, the suit
shall not abate."
2. Death of defendant: Where the sole defendant dies, the suit shall not abate if the right
to sue survives. It can be continued against the heirs and legal representatives of the
deceased defendant.
Where one of the several defendants dies and the right to sue survives against the
surviving defendant or defendants, or where the sole surviving defendant dies and the
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right to sue survives, the court, on an application by the the legal representatives of the
deceased defendant, will make him a party Where no such application is made within
the period of limitation (90 days), the suit shall abate as against the deceased defendant.
Where the plaintiff is ignorant of the death of the defendant and for that reason is unable
to make an application for substitution of the legal representative of the deceased
defendant within the period of limitation, and the suit stands abated, he may make an
application for setting aside such abatement within the period of limitation (90 days),
stating that due to ignorance of the death of the defendant he could not make an
application within time. The court shall consider the application, having due regard to
the fact of such circumstance.
Where the defendant dies after hearing and before the pronouncement of judgment, the
suit shall not abate." The suit also does not abate on account of the death of an
unnecessary party.
Rule 5: When the question of ascertaining the legal representative of a deceased plaintiff or
defendant arises before the court, then such a question will be determined by the court itself. If
the question arises before an Appellate Court, it will ask the subordinate court to submit any
records regarding the matter, found during the trial (if any). Then based on them, the court shall
find the answer to the question.
Rule 6: This rule makes the view of the court clear and transparent regarding the death of any
party to the suits. It says that death of any party to the suit will not in any way result in
abatement of the judgement by the court and the suit will be treated and the judgement will be
passed in the same way as it would have been if the deceased party were to be alive.
Conclusion
Earlier under the common law system, a lawsuit was used to automatically abate on the death
of a party. However, whether the cause of action is abated or not depends on whether or not
the lawsuit was considered personal to the parties or not. Today, there are a number of states
which have their statues which permits the revival of an action that was pending when a party
died. But in the usual course of action, an administrator or executor is substituted for the
deceased party and the lawsuit continues.
Question
Explain the properties which are not liable for attachment and sale in an execution of a
decree
OR
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What is attachment? Explain the properties which are not liable for attachment and
sale in execution of a decree
Answer
Introduction
Every civil suit is accompanied by three stages which starts from the initiation or institution of
suit, adjudication of suit and finally the implementation of the litigation. The implementation
of the litigation is the step in which the results of the adjudication are put into action, hence
this stage is known as the execution. It is the process of enforcing or giving effect to the order
or judgment passed by the court of justice.
Section 51 of CPC provides the following modes of execution of decrees subject to such
conditions and limitations as may be prescribed.
(a) By delivery of any property specifically decreed;
(b) By attachment and sale or by the sale without attachment of any property;
(c) By arrest and detention in prison for such period not exceeding the period;
(d) In such other manner as the nature of the relief granted may require.
Attachment of property
Attachment of property is one of the modes of execution of a decree in a civil suit. In a decree,
the court may require defendant to pay an amount to the decree-holder. In cases where the
defendant fails to pay the required sum, the court can, in the execution of its decree, attach the
movable and immovable property of the defendant and recover the amount which is due by the
disposal of these assets. However, there are some assets which cannot be attached to recover
the due amount.
A decree may also be executed on the application of the decree-holder by attachment and sale
or by sale without attachment of property. The Code recognises the right of the decree-holder
to attach the property of the judgment debtor in execution proceedings and lays down the
procedure to effect attachment. Sections 60 to 64 and Rules 41 to 57 of Order 21 deal with the
subject of attachment of property.
An executing court is competent to attach the property if it is situated within the local limits of
the jurisdiction of the court. The provisions of the Code, however, do not affect any special or
local law. Attachment and sale under any other statute, therefore, can be made and the
judgment-debtor cannot claim benefit under the Code.
Object
The primary object of attachment of property is to give notice to the judgment-debtor not to
alienate the property to anyone as also to the general public not to purchase or in any other
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manner deal with the property of the judgment-debtor attached in execution proceedings." At
the same time, it protects a judgment-debtor by granting exemption to certain properties from
attachment and sale.
Keeping in mind the intention underlying the provisions, the words "attachment" and "sale" are
to be read disjunctively and not conjunctively."
Property which cannot be attached
Some kind of property which cannot be attached and sold in execution of a decree is expressly
mentioned in Section 60 of the Code of Civil Procedure. According to Section 60(1) of the
Civil Procedure Code following 20 kinds of property are not liable to attachment or sale namely
1. the necessary wearing-apparel, cooking vessels, beds and bedding of the judgment-
debtor, his wife and children, and such personal ornaments as, in accordance with
religious usage, cannot be parted with by any woman;
2. tools of artisans, and, where the judgment debtor is an agriculturist, his implements of
husbandry and such cattle and seed-grain as may, in the opinion of the Court, be
necessary to enable him to earn his livelihood as such, and such portion of agricultural
produce or of any class of agricultural produce as may have been declared to be free
from liability under the provisions of the next following section;
3. houses and other buildings (with the materials and the sites thereof and the land
immediately appurtenant thereto and necessary for their enjoyment) belonging to an
agriculturist or a labourer or a domestic servant and occupied by him;
4. books of account;
5. a mere right to sue for damages;
6. any right of personal service;
7. stipends and gratuities allowed to pensioners of the Government or of a local authority
or of any other employer, or payable out of any service family pension fund notified in
the Official Gazette by the Central Government or the State Government in this behalf,
and political pension;
8. the wages of laborers and domestic servants, whether payable in money or in kind
9. salary to the extent of the first one thousand rupees and two-thirds of the remainder in
execution of any decree other than a decree for maintenance:
10. one-third of the salary in execution of any decree for maintenance;
11. the pay and allowances of persons to whom the Air Force Act, 1950 (45 of 1950), or
the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957), applies;
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12. all compulsory deposits and other sums in or derived from any fund to which the
Provident Funds Act, 16[1925 (19 of 1925), for the time being applies in so far as
they are declared by the said Act not to be liable to attachment;
13. all deposits and other sums in or derived from any fund to which the Public Provident
Fund Act, 1968 (23 of 1968), for the time being applies, in so far as they are declared
by the said Act as not to be liable to attachment;
14. all moneys payable under a policy of insurance on the life of the judgment debtor;
15. the interest of lessee of a residential building to which the provisions of law for the
time being in force relating to control of rents and accommodation apply
16. any allowance forming part of the emoluments of any servant of the Government or of
any servant of a railway company or local authority which the appropriate
Government may by notification in the Official Gazette declare to be exempt from
attachment, and any subsistence grant for allowance made to any such servant while
under suspension;
17. an expectancy of succession by survivorship or other merely contingent or possible
right or interest;
18. a right to future maintenance;
19. any allowance declared by any Indian law to be exempt from liability to attachment or
sale in execution of a decree; and
20. where the judgment-debtor is a person liable for the payment of land-revenue; any
movable property which, under any law for the time being applicable to him, is
exempt from sale for the recovery of an arrear of such revenue.
Conclusion
The Code enumerates properties which are liable to be attached and sold in execution of a
decree. Likewise, it also specifies properties which are not liable to be attached or sold.' It also
prescribes the procedure where the same property is attached in execution of decrees by more
than one court. The Code also declares that a private alienation of property after attachment is
void.
Question
Explain the procedure for attachment and sale of immovable property for execution of
a decree
Answer
Introduction
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The decree of sale of immovable property is awarded for enforcing mortgage deed, charge, or
for recovery of money or any other kind of encumbrances as deemed fit by the court. The
person in whose favour decree is awarded is called the ‘Decree Holder’, (DH) and the one
incumbent to satisfy it is ‘Judgment Debtor’ (JD). Decree of sale comes into being upon
adjudication by any court exercising original jurisdiction, and the same can be applied for
execution after the prescribed period of appeal, provided it is not preferred by the JD. Per
contra, this can go on until the JD gives up or exhausts all his legal remedies.
Procedure for attachment and sale of property
1. Written Application: DH shall move a written application in the court that originally
passed the decree or the court to which it has been transferred for execution. The
application shall contain all the essential information viz. suit number, name of parties,
date of the decree, etc. and most importantly the mode in which the assistance of the
court is required. DH should take care to quote the amount which in his estimate is the
true value of the immovable property to be sold.
2. Show Cause Notice: After the executing court has satisfied itself that all defects if any
have been cured in the application and has provisionally evaluated without prejudice to
the right of the parties the correct amount for the execution of the decree vis-à-vis value
of the immovable property a show-cause notice is issued to the judgment debtor. It is
an opportunity for him to raise his claims or objections against the execution of the
decree on the day and date fixed for hearing. Show cause notice is necessary only if the
execution petition is filed after 2 years of passing of the decree, or is against a legal
representative or assignee or receiver where DH is declared to be insolvent.
3. Application for Attachment: Once after the court has decided upon the claims or
objections if any, raised by the judgment debtor, against the execution of a decree; the
DH shall move an application requesting attachment of immovable property preceding
sale. Though sale can take place without attachment, this shall further help in
protecting the interests of the DH. The application shall contain complete details of the
immovable property so as to help in its identification. Also elaborate the extent of JD
interest in the said property, as per his information and belief.
4. Prohibiting Alienation of Property: After due diligence, the court shall pass an order
prohibiting the JD from transferring or charging the property in any manner such as
sale, gift, lease, mortgage or otherwise. The same shall apply to all who may be
interested to receive it. The same shall be drawn in writing and posted at a conspicuous
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place adjacent to the immovable property in question, and also at collector’s office if
the said property is land paying revenue to the government.
5. Objections to Attachment: All claims or objections regard to the attachment of property
on the ground that such property is not liable to be attached shall be filed before the
executing court. However, such applications shall not be entertained by the court if the
claim or objections is preferred after the attached property has already been sold or is
unnecessarily delayed by design. In such circumstances, only remedy available to the
applicant is to file a separate suit, and the court shall be bound by such outcome.
6. Preparing Notice of Sale & its Proclamation: the court shall issue a notice to both DH
and JD to present themselves in court on the day and date fixed for drawing
proclamation of sale notice. It is prepared in the language of the court and contains all
the essentials viz. time and place of sale, specifications and description of property to
be sold, etc. or any other material information necessary that shall aid the purchaser in
its evaluation. Care is taken to sell only that part of the property that is necessary to
satisfy the decree. The same shall be published and announced. A copy of the same is
affixed on a conspicuous part of the property and the courthouse.
7. Warrant of Sale: The court shall issue a warrant of sale order in the name of the bailiff
to publicly auction as per the details mentioned in the warrant on the date and place
specified and report back to court with an endorsement certifying the manner in which
sale has been executed or the reason why it has not been executed.
8. Adjournment, postponement or stoppage of sale: The court may at its discretion adjourn
sale to a specified date and hour, and so can an officer be conducting the sale but after
recording reasons thereto. And if the auction is taking place within the precincts of the
courthouse, then only after leave of court. Sale can be adjourned when the bid amount
is not adequate. Sale can be adjourned if the purchaser fails to pay 25% of the bid
amount immediately on closing of bid, and postponed if he does not pay the remaining
sum within 15 days of the successful bid. Provided, if the JD is able to satisfy the court
that if the given time, he shall be able to raise the decreed amount either by way of
leasing, mortgaging or selling the property in question or other property the court may
postpone the sale on such terms and for such period as it deems fit. The court shall
grant a certificate to the JD in this respect. All monies raised by JD shall be paid to the
DH.
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9. Application to set aside the sale: Any person claiming an interest in the property sold
may apply to the court to set it aside subject to payment in court 5% of purchase money
and sum equal to that specified in proclamation notice i.e., decreed amount.
DH, purchaser or any other person having interest in the distribution of proceeds from
the sale may apply for setting aside the sale on grounds of fraud or material irregularity
in publishing or conducting the auction, provided injury sustained is substantial. No
such application shall be accepted if the applicant had an opportunity to approach the
court on an earlier occasion but has failed to do so.
10. Successful Sale: If a sale is successful, then the purchaser is required to immediately
deposit 25% of the sale amount and the rest within 15 days of successful bid unless DH
is the purchaser himself with the prior permission of the court.
11. Distribution of money realized from sale: After defraying expenses involved in the sale
of property, pay to decree-holder his full entitlement, and if any balance remains that
shall be given to the JD. If on the contrary money realized from sale is not sufficient
to satisfy the decreed amount then the DH can apply to the court for recovery of balance
amount provided it is legally recoverable.
12. Certificate to purchaser: Once the sale has become absolute, and there is no litigation
pending in either of the courts i.e., executing court or courts of appeal the court shall
issue a certificate in favour of the purchaser containing the details of the property and
the day and date he is declared to be the absolute owner of the immovable property. If
the property in question is occupied by a tenant the court shall issue a proclamation
bringing to his notice the name of the new owner.
Finally, if for any reason the purchaser is being obstructed from gaining possession the
court shall intervene on the application, and order the bailiff to put the purchaser in
possession of the sold property.
Conclusion
Generic Conclusion
Question
What is meant by "executing court"? What are its powers?
Answer
Introduction
Section 38 of the Code enacts that a decree may be executed either by the court which passed
it or by the court to which it is sent for execution. Section 37 defines the expression "court
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which passed a decree" while Sections 39 to 45 provide for the transfer for execution of a
decree by the court which passed the decree to another court, lay down conditions for such
transfer and also deal with powers of executing court. All these sections, therefore, need to be
read together.
Court passing a decree
Section 37 defines the expression "court which passed a decree". The section enlarges the scope
of the expression "court which passed a decree" with the object of giving greater facilities to a
decree-holder to realise the fruits of the decree passed in his favour.' The following courts fall
within the said expression
(1) The court of first instance which actually passed the decree;
(2) The court of first instance in case of appellate decrees;
(3) Where the court of first instance has ceased to exist, the court which would have
jurisdiction to try the suit at the time of execution; and
(4) Where the court of first instance has ceased to have jurisdiction to execute the decree, the
court which at the time of execution would have had jurisdiction to try the suit.
Courts by which decrees may be executed: section 38
A decree may be executed either by the court which passed it, or by the court to which it is sent
for execution. A court which has neither passed a decree, nor a decree is transferred for
execution, cannot execute it."
Where the court of first instance has ceased to exist or ceased to have jurisdiction to execute
the decree, the decree can be executed by the court which at the time of making the execution
application would have jurisdiction in the matter.
Transfer of decree for execution: sections 39-42; order 21 rules 3-9
A decree may be executed either by the court which passed it or by the court to which it is sent
for execution. Section 39 provides for the transfer of a decree by the court which has passed it
and lays down the conditions therefor. As a general rule, the court which passed the decree is
primarily the court to execute it, but such court may send the decree for execution to another
court either Suo motu or on the application of the decree-holder it any of the following grounds
exists:
1. The judgment-debtor actually and voluntarily resides or carries on business, or
personally works for gain, within the local limits of the jurisdiction of such court; or
2. The judgment-debtor does not have property sufficient to satisfy the decree within the
local limits of the jurisdiction of the court which passed the decree but has property
within the local limits of the jurisdiction of such other court; or
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3. The decree directs the sale or delivery of immovable property situated outside the local
limits of the jurisdiction of such other court; or
4. The court which passed the decree considers it necessary for any other reason to be
recorded in writing that the decree should be executed by such other court.
Powers of transferee court
Once a decree is transferred for execution to another court, the transferee court shall have all
powers to execute the decree as if it had been passed by the transferee court itself." After the
transfer of a decree, it is the transferee court which will decide all questions arising in execution
proceedings." Its jurisdiction remains till it certifies to the transferor court of the execution of
the decree.
Powers of executing court
Section 42 of the Code expressly confers upon the court executing a decree sent to it the same
powers as if it had been passed by itself." It is thus power and duty of the executing court to
ensure that the defendant gives the plaintiff the very thing the decree directs and nothing more
or nothing less. At the same time, the Code requires that the court executing the decree does
not exercise power in respect of the matters which could be determined only by the court which
passed the decree." To put it differently, the powers to be exercised by the executing court
relate to procedure to be followed in execution of a decree and do not extend to substantive
rights of the parties. The executing court cannot convert itself into the court passing the decree.
Question
Explain briefly the general principles of execution of decree
Answer
Introduction
Implementation of litigation is also known as execution. A decree will come into existence
where the civil litigation has been instituted with the presentment of the plaint. The decree
means operation or conclusiveness of judgment. Implementation of a decree will be done only
when parties have filed an application in that regard. A decree or order will be executed by the
court as facilitative and not an obligation. If a party is not approaching the court, then the court
has no obligation to implement it Suo motu. A decree will be executed by the court which has
passed the judgment. In exceptional circumstances, the judgment will be implemented by
another court which is having competency in that regard.
Execution: Meaning
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The term “execution” has not been defined in the code. The expression “execution” means
enforcement or implementation or giving an effect to the order or judgment passed by the court
of justice. Simply “execution” means the process for enforcing or giving effect to the judgment
of the court. Execution is the enforcement of decrees and orders by the process of the court, so
as to enable the decree-holder to realize the fruits of the decree. The execution is complete
when the judgment-creditor or decree-holder gets money or other thing awarded to him by the
judgment, decree or order.
Principles with regard to execution of decree and order
1. Provision of CPC relating to execution of decree and order shall be made applicable to
both Appeal and Sue.
2. A decree may be executed by the court which passed the judgment and decree or by
some other court which is having competency to implement the judgment passed by
such other court.
3. The court which passed the decree may send it for execution to other court either on
application of the applicant (decree-holder) or by the court itself.
4. A court may order for execution of decree on the application of decree on the
application of decree holder (a) by delivery of any property which was in possession of
judgment-debtor and decree has been specifically passed concerning such property (b)
by attachment and sale of the property of the judgement-debtor (c) by arrest and
detention (civil imprisonment) (d) by appointing a receiver (e) in such other manner
which depends upon nature of relief granted by the court.
5. Upon the application of decree-holder, the court may issue “percept” to any other court
which is competent in that regard.
6. All questions arising between the parties to the suit in the decree shall be determined
by the court while executing the decree and not by a separate suit.
7. Where a decree is passed against a party as the “legal representative” of a deceased
person and decree is for payment of money out of the property of deceased person, it
may be executed by attachment and sale of any such property.
8. A judgment-debtor may be arrested at any time and on any date shall require to be
brought before the court which has passed the decree and his detention may be in civil
prison of the district where decree shall have to be executed.
9. Where immovable property has been sold by the court in execution of a decree such
sell shall be absolute. The property shall be deemed to be invested in the favour of
purchaser, and the purchaser shall be deemed as a party to litigation.
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10. The court to which decree is sent for execution shall require certifying to the court
which has passed decree stating the manner in which decree has been implementing
concerning the fact of such execution.
Conclusion
Order 21 of the code contain elaborate and exhaustive provision for execution of decrees and
order, take care of the different type of situation and provide effective remedies not only to the
decree-holder and judgment-debtors but also to the objectors and third parties. A decree can be
executed by various modes which include delivery of possession, arrest, and detention of the
judgment-debtor, attachment of the property, by sale, by appointment of receiver, partition,
cross-decrees, and cross-claims, payment of money etc. On exceptional situation, where
provisions are rendered ineffective or incapable of giving relief to an aggrieved party, he can
file suit in civil court.
Question
Explain the various modes of execution of decree.
Answer
Introduction
Execution: Meaning
Modes of Execution of Decree
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1. Delivery of property
2. Attachment and sale of property: Section 51(b)
3. Arrest and detention: Section 51(c)
4. Appointment of receiver: Section 51(d)
5. Any other mode: Section 51(e)
6. Partition: Section 54
7. Cross-decrees and cross-claims: Rules 18-20
A. Delivery of property
(a) Movable property: Section 51(a), Rule 31: Where the decree is for any specific movable
property, it may be executed (1) by seizure and delivery of the property; or (ii) by detention
of the judgment- debtor; or (iii) by the attachment and sale of his property; or (iv) by
attachment and detention both. The words specific movable (property) does not include
money and, therefore, a decree for money cannot be executed under Rule 31.
(b) Immovable property: Rules 35-36: Rules 35 and 36 provide the mode of executing decrees
for possession of immovable property to the decree-holder. Rules 35 and 36 correspond to
Rules 95 and 96 which lay down the procedure for delivery of possession to the auction-
purchaser who has purchased the property in an auction-sale.25 Where the decree is for
immovable property in the possession of the judgment- debtor or in the possession of the
person bound by the decree, it can be executed by removing the judgment-debtor or any
person bound by the decree and by delivering possession thereof to the decree holder.
B. Attachment and sale of property: Section 51(b)
Section 51(b) empowers the court to order execution of a decree by attachment and sale or
by sale without attachment of any property. The court is competent to attach the property if
it is situated within the local limits of the jurisdiction of the court." It is immaterial that the
place of business of the judgment-debtor is outside the jurisdiction of the court. Section
60 of the Code of Civil Procedure provides the list of properties which are liable to
attachment and sale in execution of the decree.
C. Arrest and detention: Section 51(c)
D. The proviso lays down that where the decree is for payment of money, execution by
detention in civil prison should not be ordered unless, after giving the judgment-debtor an
opportunity of showing cause why he should not be so detained, the court for reasons to be
recorded in writing is satisfied (i) that the judgment-debtor with the object of obstructing or
delaying the execution of the decree (a) is likely to abscond or leave the local limits of the
jurisdiction of the court; or (b) has, after the institution of the suit in which the decree was
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passed, dishonestly transferred, concealed or removed any part of his property, or committed
any other act of bad faith in relation to his property; or (ii) that the judgment-debtor has, or
has had since the date of the decree, the means to pay the amount of the decree or some
substantial part thereof and refuses or neglects or has refused or neglected to pay the same;
or (iii) that the decree is for a sum which the judgment-debtor
E. Appointment of a receiver: Section 51(d)
Under order 40 of CPC, The Receiver is an independent and impartial person who is
appointed by the court to administer/manage, that is, to protect and preserve a disputed
property involved in a suit. Execution by appointment of a receiver is known as equitable
execution and is entirely at the discretion of the court. It cannot be claimed as of right. When
a party in possession of the disputed property exhausts the property or causes irreparable
damages to it, the whole object of the suit gets defeated because the subject matter ceases
to exist or its value gets affected. Therefore, when the court is of the opinion that the property
in dispute must not go to either of the parties, pendente lite, the court appoints a receiver
who is entrusted with the protection and preservation of such property. It is a form of interim
protection which the court provides to the parties who makes the application till the time the
court adjudicates the matter.
F. Any other mode: Section 51(e)
G. Clause (e) of Section 51 CPC allows execution of decree "in such other manner as the nature
of the relief granted may require". It is thus a residuary clause and would come into play
when the decree cannot be executed in any of the modes provided in clauses (a) to (d).
H. Partition
Rule 18 of the Order XX of the Code of Civil Procedure deals with the decree in the suit for
partition of property. When the Court passes the decree for partition of any movable or
immovable property and if there is any difficulty in partition the Court can pass a
preliminary decree which clearly demarcates the different rights of the property. When the
decree of partition relates to the estate assessed to the payment of revenue to the
Government, the partition can be made by the Collector or any other gazetted officer who
is subordinate to the Collector and the gazetted officer has to be appointed by the Collector
themselves.
I. Cross-decrees and cross-claims
Rule 18 of the Order XXI provides rules regarding the execution in cases of cross-decrees.
The application of cross decrees can be executed by the Court at the same time when the
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applications are made to a Court in separate suits for the payment of two sums of money
passed between the same parties in various situations
Rule 19 of the Order XXI provides rules regarding the execution in cases of cross-claims. It
is considered as a cross-claim when the application is made to a Court for the execution of
a decree under which two parties are entitled to recover sums of money from each other.
There can be satisfied when the amount is equal or if the amount is unequal execution may
be only carried out with the person entitled to the higher claim.
Conclusion
There are various methods of execution of a decree under the Code of Civil Procedure. It is the
duty of the Court to assess the facts of each and every case and provide appropriate relief to
the decree-holder without any delay. The Court has to follow the procedures which are
provided under the Orders of the Code of Civil Procedure before executing a decree and
choosing the appropriate mode of execution.
Question
What are the different modes of executing a decree in a money suit?
Answer
Introduction
Execution: Meaning
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Execution of a money decree
A decree for payment of money (simpliciter or as an alternative to some other relief) may be
executed by attachment and sale of property of the judgment-debtor or by his detention in civil
prison or by both."
The object underlying Rule 2 is to ensure that the executing court should not be troubled with
disputes between the parties with regard to payment or adjustment out of court unless it has
been certified or recorded. The rule also seeks to avoid fraud in respect of payment made out
of court."
Modes of paying money
All money payable under a decree shall be paid either (i) by depositing in the executing court;
or (ii) out of court to the decree-holder; or (ii) as per the direction of the court which has passed
the decree. The judgment-debtor is bound to pay the decretal debt in one of the above modes.
1. Payment in court: Where the payment has to be made in court, it may be made either
by depositing the decretal amount in court or by a postal money order or through a
bank. If the court is closed on the last day for making such payment, the payment can
be made on the day the court reopens. Where payment is made by depositing the
decretal amount in the executing court, or as per the direction of the court, which has
passed the decree, the judgment-debtor shall give notice of such payment to the decree-
holder through court or directly to him by registered post acknowledgment due." On
the amount being paid, interest shall cease from the date of service of the notice."
2. Payment out of court: A payment to the decree-holder out of court also discharges the
decree. Such payment may be made by postal money order or through a bank or by any
other mode wherein payment is evident in writing. When the payment is made out of
court, the following particulars must be accurately stated:
i. The number of the original suit;
ii. The names of the parties or where there are more than two plaintiffs or more
than two defendants, as the case may be, the names of the first two plaintiffs
and the first two defendants;
iii. ow the money remitted is to be adjusted, that is to say, whether it is towards
the principal, interest or costs;
iv. The number of the execution case of the court, where such case is pending;
and
v. The name and address of the payer.
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No payment or adjustment can be recorded by the court at the instance of the judgment-debtor
unless such payment is evident in writing; or such payment or adjustment is proved by
documentary evidence, or such payment or adjustment is admitted by or on behalf of the
decree- holder in his reply to the notice by the court or before the court." The object of
certification is to ensure that the executing court should not be troubled with disputes with
regard to payment or adjustment out of courts. The provision also seeks to avoid fraud in
respect of payment made out of court.
Question
Who can apply for setting aside the sale in execution of a decree? When can sale be set
aside?
Answer
Introduction
The decree of sale of immovable property is awarded for enforcing mortgage deed, charge, or
for recovery of money or any other kind of encumbrances as deemed fit by the court. The
person in whose favour decree is awarded is called the ‘Decree Holder’, (DH) and the one
incumbent to satisfy it is ‘Judgment Debtor’ (JD). Decree of sale comes into being upon
adjudication by any court exercising original jurisdiction, and the same can be applied for
execution after the prescribed period of appeal, provided it is not preferred by the JD. Per
contra, this can go on until the JD gives up or exhausts all his legal remedies.
Setting aside sale: Rules 89-92
Rules 89 to 92 deal with setting aside of sale. When a property is sold in execution of a decree,
an application for setting aside sale may be made under these provisions by the persons affected
and the grounds mentioned therein. Such an application has to be made within the prescribed
period of limitation (60 days)." But an application to set aside sale of immovable property
cannot be made on any other ground not covered by Rules 89 to 91.
Grounds for setting aside the sale
1. On deposit: Rule 89
Rule 89 of Order 21 provides for setting aside execution sale on payment of five per
cent of purchase price to the auction-purchaser and entire amount specified in the
proclamation for sale to the decree-holder.
The underlying object of this rule is to give a judgment-debtor the "last chance" of
saving his property by getting the sale set aside before it is confirmed by the court. It is
intended to afford an opportunity to the judgment-debtor, even after the property is sold,
to satisfy the claim of the decree-holder and to compensate the auction-purchaser by
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paying him five per cent of the purchase money. The rule being in the nature of a
concession must be strictly complied with." The words "on his depositing in court"
show that deposit is a condition precedent to the making of an application to set aside
a sale."
Any person claiming any interest as existing at the time of the sale or at the time of
making an application may avail of the benefit of Rule 89. The expression "interest"
has a very wide import and should be construed liberally so as to enable a party having
any inchoate right to apply under this rule.
Thus, Order 21 Rule 89 is intended-
a. to save judgment-debtor from the threatened deprivation of his property;
b. to satisfy the claim of the decree-holder; and
c. to compensate the auction-purchaser.
2. For irregularity or fraud: Rule 90
A sale of immovable property in execution can be set aside also on the ground of
material irregularity or fraud in publishing or conducting the sale, provided the
applicant proves that he has sustained substantial injury by reason of such irregularity
or fraud," The pre-sale illegalities committed in the execution are amenable to the
remedy under Section 47. Post-sale irregularities causing substantial injury to the
judgment-debtor are covered under Rule 90 of Order 21.
The following persons have been judicially held entitled to apply under this rule:
a) the decree-holder;
b) the auction-purchaser;
c) any person entitled to share in a rateable distribution of assets;
d) any person whose interests are affected by the sale,
Before a sale can be set aside under this rule, it must be
a. there has been a material irregularity or fraud in publishing and conducting the
sale; and
b. substantial injury has been caused to the applicant.
The expression "material irregularity" in Rule 90 refers to an irregularity on the part of
the court or its officers in the procedure to be followed before the property is put up for
sale. "Fraud" means that "which is dishonest and morally wrong". Such fraud must be
in publishing or conducting the sale. Fraud must be established beyond reasonable
doubt by clear and cogent evidence; general and vague allegations and suspicious
circumstances are not enough. Though the onus of proving fraud is on the party alleging
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it, it is open to a court to draw an inference of fraud from the established facts taken
together as a whole.
3. Judgment-debtor having no saleable interest: Rule 91
Rule 91 enables the auction-purchaser to apply for setting aside the sale on the ground
that the judgment-debtor had no saleable interest in the property. This provision is an
exception to the general rule of caveat emptor (let the buyer beware). It is only the
auction-purchaser who can apply under this rule. A decree-holder auction-purchaser
can also apply A judgment-debtor cannot apply under this rule.
The rule is intended for the protection of an innocent auction-purchaser; and it cannot,
therefore, be invoked where the purchaser knew at the time of sale that the judgment-
debtor had no saleable interest in the property.
The expression "no saleable interest" means no saleable interest at all. Hence, where
the judgment-debtor has some sale able interest, however small it may be, this rule does
not apply and the sale cannot be set aside on the ground that the judgment-debtor did
not have full saleable interest in the property.
Conclusion
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SHORT ANSWERS
Question
Affidavit
Answer
Introduction
Though the expression "affidavit" has not been defined in the Code, it has been commonly
understood to mean "a sworn statement in writing made especially under oath or on affirmation
before an authorised officer or Magistrate"
Stated simply, an affidavit is a declaration of facts, made in writing and sworn before a person
having authority to administer oath. Every affidavit should be drawn up in the first person and
should contain only facts and not inferences.
Essentials
The essential attributes of an affidavit are:
(1) It must be a declaration made by a person
(2) It must relate to facts;
(3) It must be in writing;
(4) It must be in the first person; and
(5) It must have been sworn or affirmed before a Magistrate or any other authorised
officer.
Contents of affidavit
An affidavit should be confined to such facts as the deponent is able to prove to his personal
knowledge. Rule 3(1) of Order 19, however, allows the deponent to state such facts in
interlocutory applications which are based on belief. An affidavit should be verified.
Importance of verification is to test the genuineness and authenticity of the averments and
allegations made by the deponent and make the deponent responsible for those allegations.
Evidence on affidavit: Rules 1-3
A court may order that any fact may be proved by affidavit. Ordinarily, a fact has to be proved
by oral evidences since affidavits are not included in the definition of "evidence" under Section
3 of the Evidence Act. They can be used as an evidence only if, for sufficient reason, the court
invokes the provisions of Order 19 of the Code. Order 19 Rule 1 is a sort of exception to this
rule, and empowers the court to make an order that any particular fact may be proved by
affidavit, subject, however, to the right of the opposite party to have the deponent produced for
cross-examination."
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If a party desires to controvert the averments contained in the affidavit of the opposite party,
he must either file an affidavit-in-reply or cross-examine the deponent. In the absence of this,
the court is entitled to come to its own finding
Affidavits should be confined to such facts as the deponent is able to prove to his personal
knowledge, except on interlocutory applications, on which statements of his belief may be
admitted. Where an averment is not based on personal knowledge, the source of information
should be dead disclosed.
Swearing of false affidavit is an offence of perjury punishable under the Indian Penal Code. It
is a grave and serious matter and lenient view is not warranted. Where such affidavit is filed
by an officer of the Government very strict action should be taken.
Conclusion
Ordinarily, interlocutory applications, which do not determine any right finally and
conclusively, such as, application for attachment before judgment, interim injunction,
appointment of receiver, etc. can be decided on affidavits.
Question
Interrogatories
Answer
Introduction
Section 30 and Order XI Rule 1 to 11, 21 and 22 of CPC covers interrogatories. When, with
the leave of the Court, parties administer a set of questions on the other party then it is called
‘Interrogatories’. Interrogatories shall be confined to the facts, it shall not be conclusions of
law, construction of words or documents, or inference from facts. Under CPC, this is known
as the ‘right to obtain information’ by the parties. The party to whom the set of questions were
administered shall give reply to another party in writing and under oath. ‘Discovery of
interrogatories’ means when the party, while giving answers to the interrogatories, discloses
the nature of the case, with affidavit.
As per the provisions of the code, any party in a suit can file an application to obtain an order
from the court to ask interrogatories from the other party. So, after filing the plaint, when the
written statement is filed by the defendant and when the court sends summons to parties for the
first hearing, if any party feels that there is a gap in the facts, then they can file an application
under this section and ask order from the court.
Objective
The objective of the interrogatories is: -
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1. To determine the nature of the case when it is not clear from the suit filed.
2. To make own case stronger by making the other party do admissions.
3. To destroy the case of the opponent.
Who may administer interrogatories
Interrogatories may be administered by one party to a suit to the other party. Thus, a plaintiff
may administer interrogatories to a defendant Likewise, a defendant may administer
interrogatories to a plaintiff." In exceptional cases, a plaintiff may administer interrogatories to
a co-plaintiff or a defendant may administer interrogatories to a co-defendant.
Against whom interrogatories may be allowed
Generally, interrogatories may be delivered to a party to a suit. Hence, interrogatories may be
allowed against plaintiff or defendant. It may, however, happen that a person may not be
arrayed as a party to a suit, but in substance and in reality, he may be a party; e.g., in a suit by
an agent, a principal is really the plaintiff. An order of interrogatories, hence, may be obtained
against him.10
An order of interrogatories may be made against the Government." Where a party to a suit is a
minor, lunatic or of unsound mind, interrogatories may be served on his next friend or guardian
ad litem."
Objections to interrogatories
Objections can be raised by the parties on the following grounds: -
1. Questions are scandalous;
2. Questions are irrelevant;
3. Questions are not exhibited bona fide;
4. Matters which are inquired into are not sufficiently material at this stage;
5. On the ground of privilege; or
6. Any other ground.
Conclusion
Interrogatories are an essential tool to save time and protect the adversary against delay. The
evidence stage is an important part of civil proceedings, and consumes a lot of time. This is
primarily because, the presence of the parties and witnesses are necessary. Further, there may
be documents which have to be submitted the Court which requires time. But, when the
deposition required to be taken against the opposite party is simply recorded without the
presence of the party, but has the same value as such, it may halve the time consumed in the
evidence stage. It is notable that the limitation to answer the interrogatories is ten days.
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Question
Garnishee Order
Answer
Introduction
Garnishee proceeding is a proceeding by which the decree-holder seeks to reach money or
property of the judgment-debtor in the hands of a third party (debtor of judgment-debtor). By
this process, an executing order a third party to pay to the judgment-creditor (decree-holder)
the debt from him to the judgment-debtor. The payment made by the garnishee pursuant to the
order passed by the executing court is a valid discharge to him against his decree-holder. court
may
Meaning
"Garnishee" means a judgment-debtor's debtor. He is a person who is liable to pay a debt to a
judgment-debtor or to deliver any movable property to him. "Garnisher" (Garnishor) is a
judgment-creditor (decree-holder who initiates garnishee proceedings to reach judgment-
debtors money or property held or possessed by third party (garnishee). "Garnishment" is a
proceeding by which the decree-holder seeks to get the property of the judgment-debtor.
"Garnishee proceeding" is a judicial proceeding in which a judgment-creditor (decree-holder)
prays to executing court to direct third party who is a debtor of the judgment-debtor to pay the
amount to the garnisher (decree-holder). "Garnishee order" is an order passed by a court. A
garnishee order is basically an equitable remedy and it is at the discretion of the court.
Object
The primary object of a garnishee order is to make the debt due by the debtor of the judgment-
debtor available to the decree-holder in execution without driving him to a suit.
Notice
Rule 46-A requires a notice to be issued to a garnishee before a garnishee order is passed
against him. If such notice is not issued and opportunity of hearing is not afforded before
passing an order, the order would be null and void.
Duty of garnisher
A garnisher must state full facts in his application and verify them on affidavit. The application
or affidavit should not be vague, ambiguous or containing false or incorrect averments.
Duty of garnishee
Rule 46-D requires the garnishee to acquaint the court with any claim or lien of third party over
the property so as to enable the court to issue notice to such third party and investigate his claim
and pass an appropriate order. If the garnishee fails in discharging his duty or pays the amount
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to the garnisher in spite of the claim or lien of third party, he can be compelled to pay such
amount to third party."
Conclusion
The Code of Civil Procedure provides for the provision of a garnishee order. Prior to the
amendment of 1976, there was no provision regarding the debit transfer. This order empowers
the court to pass an order against the third party to pay the due debt directly to the judgment
creditor instead of paying it to the judgment debtor. However, the power exercised by the court
of law is discretionary and it is upon the court to pass such order or not. It is not a mandatory
provision for the court while passing an execution decree.
Question
Proclamation of sale
Answer
The executing court is empowered to attach property, and publicly auction it to pay the person
entitled proceeds of the sale in satisfaction of the decretal amount. In this regards, the court
shall issue a notice to both DH and JD to present themselves in court on the day and date fixed
for drawing proclamation of sale notice. It is prepared in the language of the court and contains
all the essentials viz. time and place of sale, specifications and description of property to be
sold, revenue assessed if any due, any encumbrance to which the property is liable, decreed
amount, estimate value of the property as ascertained by the court, judgment debtor and decree-
holder or any other material information necessary that shall aid the purchaser in its evaluation.
Care is taken to sell only that part of the property that is necessary to satisfy the decree. The
court is also empowered to summon anyone, or demand documents deemed necessary in
preparation of this proclamation notice. Henceforth, the court shall order the Nazir of the Court
for causing service of this drawn proclamation of sale. The same shall be published and
announced by beat of drums. A copy of the same is affixed on a conspicuous part of the
property and the courthouse. After performing all such acts, Nazir shall prepare a report for the
information of the executing court.
Rule 66: Where any property is ordered to be sold by public auction in execution of a decree,
the court shall cause a proclamation of the intended sale to be made in the language of such
court.
(2) Such proclamation shall be drawn up after notice to the decree holder and the judgment
debtor and shall state the time and place of sale, and specify as fairly and accurately as
possible—
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(a) the property to be sold, or, where a part of the property would be sufficient to satisfy the
decree, such part;
(b) the revenue assessed upon the estate or part of the estate, where the property to be sold is
an interest in an estate or in part of an estate paying revenue to the government;
(C) any encumbrance to which the property is liable;
(d) the amount for the recovery of which the sale is ordered; and
(e) every other thing which the court considers material for a purchaser to know in order to
judge of the nature and value of the property:
Provided that where notice of the date for settling the terms of the proclamation has been given
to the judgment debtor by means of an Order under rule 54, it shall not be necessary to give
notice under this rule to the judgment debtor unless the court otherwise directs:
Provided further that nothing in this rule shall be construed as requiring the court to enter in
the proclamation of sale its own estimate of the value of the property, but the proclamation
shall include the estimate, if any, given, by either or both of the parties.
(3) Every application for an Order for sale under this rule shall be accompanied by a statement
signed and verified in the manner herein before prescribed for the signing and verification of
pleadings and containing, so far as they are known to or can be ascertained by the person
making the verification, the matters required by sub-rule (2) to be specified in the proclamation.
(4) For the purpose of ascertaining the matters to be specified in the proclamation, the court
may summon any person whom it thinks necessary to summon and may examine him in respect
to any such matters and require him to produce any document in his possession or power
relating thereto.
Rule 67. (1) Every proclamation shall be made and published, as nearly as may be, in the
manner prescribed by rule 54, sub-rule (2).
(2) Where the court so directs, such proclamation shall also be published in the Official Gazette
or in a local newspaper, on in both, and the costs of such publication shall be deemed to be
costs of the sale.
(3) Where property is divided into lots for the purpose of being sold separately, it shall not be
necessary to make a separate proclamation for each lot, unless proper notice of the sale cannot,
in the opinion of the court, otherwise be given.
The object of issuing a proclamation is twofold, firstly it protects the interest of the intending
purchasers by giving them all material information regarding the property to be sold, and
secondly, it protects the interest of the judgment-debtor by facilitating the fetching of proper
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market price for his property and by preventing it from being knocked down at public auction
for a price much below the market price.[4]
It is no doubt easy to draw the line between irregularity and illegality in an execution sale, but
where a substantial provision like Order XXI, Rule 66, is violated the sale should be regarded
as having been illegally conducted and would be void.
A sale conducted without publication of proclamation is not merely an irregularity but a
nullity.[5] It is incumbent on the court to be scrupulous to the extreme. No action of the court
or its officer should be such as to give rise to the criticism that it was done in a casual manner.[6]
It is the duty of the court to ensure that the requirements of Rule 66 are complied with. It is
also desirable that every proclamation of sale shall be made by beat of drum or other customary
mode.
Contents of proclamation: -
 Time and place of sale
 Property to be sold
 Revenue, if any, assessed upon the property;
 Encumbrance, if any, to which property is liable;
 Amount to be recovered;
 Details relating to property, such as title deed, length etc.
Question
Kinds of issues
Answer
Introduction
According to the dictionary meaning, "issue" means a point in question; an important subject
of debate, disagreement, discussion, argument or litigation. In other words, an issue means a
single material point of fact or law in litigation that is affirmed by one party and denied by the
other party to the suit and that subject of the final determination of the proceedings. According
to Rule 1(2) of Order 14, material propositions are those propositions of fact or law which a
plaintiff must allege in order to show a right to sue or a defendant must allege in order to
constitute his defence.
Kinds of issues
As per the Order 14 Rule 1(4) of the C.P.C. issues are of two kinds:
A. Issues of fact
B. Issues of Law.
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C. Issues, however, may be mixed issues of fact and law.
(Expand them)
Question
Adjournment of case
Answer
Introduction
The “Adjournment” is not defined in law. But in the ordinary sense, the word “Adjournment”
is to put the matter for another time or day or to put off or to postpone or suspend i.e., fixing
the case for the next day. The provisions relating to adjournment is enumerated in the Civil
Procedure Code, 1908 under order XVII but the code does not define the term adjourn.
A party to the suit, however, may ask for an adjournment of the matter. Normally, to grant or
refuse adjournment is at the discretion of the court, The power to grant adjournment is not
subject to any definite rules, but it should be exercised judicially and reasonably and after
considering the facts and circumstances of each case. The provision limiting adjournments
cannot be held to be ultra vires or unconstitutional. "
When adjournment may be granted
An adjournment may be granted by a court inter alia on the grounds of sickness of a party, his
witness or his advocate; non-service of summons, reasonable time for preparation of case,
withdrawal of appearance by a pleader at the last moment, etc.
When adjournment may be refused?
An adjournment may be refused by a court inter alia on the grounds of engagement of an
advocate in another court, unreasonable conduct of a party or his advocate, refusal to examine
or cross-examine a witness present in the court, assurance or undertaking by the party or his
pleader at the previous hearing to proceed with the case at the next hearing, the case being very
old, direction by a superior court to dispose of the matter expeditiously, etc.
Maximum adjournments
Proviso to sub-rule (1) of Order 17, as inserted by the Amendment Act, 1999 mandates that
maximum three adjournments can be granted by the court to a party during the hearing of the
suit.
In Salem Advocate Bar Assn. (2) v. Union of India", the Supreme Court held that in extreme
and exceptional circumstances, this strict rule does not apply. The court also held that by
"reading down" discretionary power to grant adjournment, the validity of the provision can be
sustained.
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Costs of adjournment
While granting an adjournment, the court shall, direct the party seeking an adjournment to pay
costs or higher costs to the opposite party.40 Such amount, however, should be reasonable and
commensurate with the costs incurred by the other side. No costs should be imposed by way
of penalty or punishment.
Question
Admissions
Answer
Introduction
Section 58 of the Evidence Act, 1872 declares that the facts admitted need not be proved.
Admissions may be made before the suit or after the filing of the suit. The object of obtaining
admissions is to do away with the necessity of proving facts that are admitted; and the judgment
and decree may be passed on such admissions.
Meaning
Admission basically means the voluntary acknowledgement made by the person against his
own interest. It can be an important piece of evidence against a person. It can either be in oral,
electronic form or documentary in nature. Admissions are different from the confession which
is made under the criminal law. Admission is weaker than confession because the parties have
the right to prove that admission made earlier was false.
Kinds of admissions
Under the Code, the admissions are admitted in three ways: -
1. By agreement or by notice;
2. Actual admissions, oral or by documents;
3. The express or implied admissions from the pleadings or by non-traverse by agreement.
Conclusiveness of admission
The admissions are not conclusive in nature. They can be erroneous or gratuitous. Admissions
made can be withdrawn or explained away. It can be proved wrong. The context of the
admission can be made after hearing the pleadings in entirety. Oral admissions prevail over
documentary or records of rights. Even the admission, if made earlier, can be proved to be
collusive or fraudulent. And one more important thing is, if the admissions are made by the co-
defendant then that cannot be used against other defendants.
Notice to admit case
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As per Rule 1 Order 12, any party to the suit can admit the whole or part of the case of the
other side in writing.
Notice to admit documents
Within seven days of the notice served by the other party to admit the documents, the party
shall respond to the notice. If not responded on the mentioned time, then the party which fails
to do so will be liable to answer the delay and the costs of providing them.
Notice to admit facts
Any party in the suit can call the other party to admit facts of the case by giving them notice
which shall not be later than nine days before the day fixed for the hearing.
Judgment on admissions
Rule 6 empowers the court to pronounce a judgment upon the admissions made by the parties,
without waiting for determination of any other question between the parties.
The object of the rule is to enable a party to obtain a speedy judgment, at least to the extent of
the relief to which, according to the admission of the opposite party, he is entitled to. A party
can, under this rule, move for a judgment upon the admission made by the opposite party and
thus get rid of the portion of the action in which there is no dispute.
Conclusion
It is well-settled that an admission must be taken as a whole or not at all. It is not open to a
court to accept a part of it and reject the rest. But where one portion of the claim was admitted
and the other portion was denied, and both the portions were severable, it was held that the
plaintiff could ask for a judgment on the portion admitted by the defendant.
Question
1. Attachment
2. State the distinguish between judgement and decree
3. Arrest
Answer
From long answers
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UNIT 4
LONG ANSWERS
Question
What are the pre-conditions to be followed in institution of suits by or against the
Government? Explain.
OR
Explain the suit of particular cases with special reference to the suits by or against the
government?
OR
What is the special procedure for institution of suits by or against governments and
public servants in their official capacity?
Answer
Introduction
Suits by or against the government or public officials in their official capacity are special cases
as the procedures which have to be observed while instituting a plaint vary from the usual
procedures which are carried out in accordance with civil suits for private individuals. They
are enumerated u/s 79 to 82 and Order 27.
The expression Government has not been defined in the Code. It has, however, been held that
the term Government means Central Government well as State Government.
The expression "any act purporting to be done by such public officer in his official capacity"
takes within its sweep acts as also illegal omissions. Likewise, it also covers past as well as
future acts. All acts done or which could have been done under the colour or guise by an officer
in the ordinary course of his official duties would be included therein.
Section 79
Section 79 lays down the procedure whereby the suits are brought by or against the government
but at the same time, it does not deal with the rights and liabilities enforceable by or against
the government body. Under Section 79, only the court within whose local limits, the cause of
action arose, has the jurisdiction to try the suit and otherwise it cannot.
Section 80, pre-condition for suit
In ordinary suits, i.e., suits between individuals and individuals, notice need not be given to the
defendant by the plaintiff before filing a suit. Section 80 of the Code, however, declares that
no suit shall be instituted against the Government or against a public officer in respect of any
act purporting to be done by such public officer in his official capacity, until the expiration of
two months after notice in writing has been delivered to, or left at the office of concerned
government official.
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Issuance of notice under Section 80 is the "first step" in the litigation after the cause of action
arises against the government. The notice thus is, in stance, an advance copy of the plaint served
upon the defendant.
Service of notice is a condition precedent before the institution of suit against the government.
No court can entertain a suit against the government if such notice is not served upon the
government. Thus, in the absence of statutory notice under Section 80 CPC, the plaint must be
rejected by the court.
Alternatively, Section 80 (2) specifies that only after seeking the Court’s permission can a suit
be instituted without serving the notice but only in cases where a crucial or instant relief is
essential. The Court shall return the plaint if it finds that the relief is not urgent and the matter
will be dealt as per the procedure and requirements laid down in this section.
Object of notice
The primary object underlying Section 80 is to afford an opportunity to the Government or
public officer to consider the legal position and to settle the claim put forward by the
prospective plaintiff if the same appears to be just and proper. The legislative intent behind the
provision is that public money should not be wasted for unnecessary litigation.
A notice under Section 80 must contain (i) name, description and place of residence of the
person giving notice; (ii) a statement of the cause of action and (iii ) relief claimed by him.
Procedure to institute a suit
Order 27 under CPC has 8 rules that regulate procedural matters in suits by or against the
Government or Public Officers acting in official duty. The rules are –
 Rule 1 states that in any suit by or against the Government, the plaint or written
statement shall be signed by someone that the Government may, by passing a general
or special order, elect on their behalf, and the same shall be confirmed by a person
whom the Government may retain and who is familiar with the case at hand.
 Rule 2 specifies that any person who is ex officio and entitled to speak for the
government in judicial proceedings or is duly authorized by the government must be
the official agent who must make appearances/applications and act on the government’s
behalf.
 Rule 3 prescribes inserting the suitable name u/s 79 instead of inserting in the plaint,
the name, description, address of the plaintiff or defendant.
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 Rule 4 mentions that a government pleader acts as an official agent who is in-charge of
receiving processes issued against the government. Likewise, only he can intimate the
court that he is representing the government.
 Rule 5 mandates Courts to allow the government, a reasonable time of 2 months to
reply to the plaint in order to facilitate necessary communication between government
and their pleader.
 Rule 5A specifies that if a suit is instituted against a public officer for an act committed
by him during his official capacity, the government shall be a party to the said suit.
Whereas Rule 5B states that it is a Court’s duty to try and reach a mutual settlement in
cases involving the government or public officers.
 Rule 6 prescribes getting direct attendance of any person who is familiar with the case
and can aid the Court by answering any material questions in regard to the suit against
a govt.
 Rule 7 specifies that a public officer who has been served a summon can seek extension
from the Court to discuss the matter with the government first. The Court can grant an
extension for as long as it deems necessary.
 Rule 8 states that in instances wherein the government undertakes a defence of suit
against a public officer, the appointed pleader will apply to the Court and his authority
must be entered in the register of civil court.
 Rule 8A declares that no security as cited in Rule 5 and 6 of Order XLI is required in a
case against government or public officer.
Case Laws
 In Lutfar Rahman v. State of West Bengal, it was decided that when any person barring
the government pleader wants to act as an agent, it is possible but only when the
government agent informs the Court that the said person is acting under his directions.
 In Union of India v. Shankar Stores, the Court concluded by declaring that if a notice
is to be served, it should convey to its recipients, adequate information to help the
authorities ascertain who exactly is serving the notice.
Conclusion
Section 81 is also considered as an important privilege given to a public servant. It allows the
court to exempt the public servant from appearing before the court. It can do this only if
believes that by making the person absenting himself from his duty, there is a loss caused to
the public. It has also been stated under section 82 that no execution will be entertained by any
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court against any decree passed by the government is a public officer. The only condition that
must be fulfilled for seeking this is that it must be unsatisfied for three months since the date
the decree was passed.
Question
What is the procedure for institution of suit by an indigent person?
Answer
Introduction
With the motive of providing justice to such individuals, provisions under Order 33 were
introduced. Any person who wants to represent as an indigent person is required to file an
application before the competent court wherein he declares himself to be an indigent person.
Primarily, before the introduction of the expression “indigent person” the term “pauper” was
used to denote the underprivileged section of society.
Meaning of indigent person
A person is an "indigent person" (i) if he is not possessed of sufficient means to enable him to
pay the fee prescribed by law for the plaint in such suit; or (ii) where no such fee is prescribed,
when he is not entitled to property worth one thousand rupees. In both the cases, the property
exempt from attachment in execution of a decree and the subject-matter of the suit should be
excluded.
The expression "sufficient means" contemplates ability or capacity of a person in ordinary
course to raise money by available lawful means to pay court-fee.
Contents of application: Rule 2
Every application for permission to sue as an indigent person should contain the following
particulars:
(1) The particulars required in regard to plaints in suits;
(2) A schedule of any movable or immovable property belonging to the applicant with the
estimated value thereof; and
(3) Signature and verification as provided in Order 6 Rules 14 and 15,
Rejection of application
The court will reject an application for permission to sue as an indigent person in the following
cases:
1. Where the application is not framed and presented in the prescribed manner; or
2. Where the applicant is not an indigent person; or
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3. Where the applicant has, within two months before the presentation of the application,
disposed of any property fraudulently or in order to get permission to sue as an indigent
person; or
4. Where there is no cause of action; or
5. Where the applicant has entered into an agreement with reference to the subject-matter
of the suit under which another person has obtained interest; or
6. Where the suit appears to be barred by law; or
7. Where any other person has entered into an agreement with the applicant to finance
costs of the litigation.
Inquiry: Rule 1-A
In the first instance, an inquiry into the means of the applicant should be made by the Chief
Ministerial Officer of the court. Where the application submitted by the applicant is in proper
form and is duly represented, the court may examine the applicant regarding the merits of the
claim and the property of the applicant.
The court shall then issue notice to the opposite party and to the Government Pleader and fix a
day for receiving evidence as the applicant may adduce in proof of his indigency or in disproof
thereof by the opposite party or by the Government Pleader. On the day fixed, the court shall
examine the witnesses (if any), produced by either party, hear their arguments and either allow
or reject the application.
Where permission is granted: Rules 8-9-A
There an application to sue as an indigent person is granted, it shall be deemed to be a plaint in
the suit and shall proceed in the ordinary manner, except that the plaintiff will not have to pay
court fees or process fees. The court may assign a pleader to an indigent person if he is not
represented by a pleader.
Where permission is rejected: Rules 15-15-A
Where the court rejects an application to sue as an indigent person, it will grant time to the
applicant to pay court fees." An order refusing to allow an applicant to sue as an indigent person
shall be a bar to a subsequent similar application.
Withdrawal of Permission to Sue as an Indigent Person
The plaintiff's right to sue as an indigent may be revoked by the court on the defendant's
application; however, the plaintiff has to be given an opportunity to be heard. The plaintiff's
permission to sue as an indigent person may be withdrawn on any of the following grounds −
 That the plaintiff is guilty of vexatious or improper conduct in the course of the suit;
 That he has sufficient means to pay the court fees.
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 That the plaintiff has entered into an arrangement with any other person to finance the
litigation, and thereafter he will be given a share of the property under dispute. The
person financing the litigation has sufficient means to pay court fees.
Realization of Court Fees
The exemption from filing the court fee at the time of institution of the civil suit, as granted to
the indigent person under Order 33 of the CPC, is applicable till the suit is finally disposed of.
However, where an indigent person succeeds in a suit, he shall be required to deposit the court
fee out of the property he received as an outcome of the suit. The court shall make appropriate
directions in the decree itself.
Conclusion
According to the Indian Constitution, every citizen has a fundamental right to free and fair
justice. Further justice is not only done, it is seen to be done. Order 33 of the Code of Civil
Procedure implements the fundamental right to free justice by allowing a person to exercise his
rights without paying any court fees in order to assert his rights and interests. However, certain
conditions must be met before taking advantage of these provisions.
Question
What is the special procedure to be followed in suits by or against minors
Answer
Introduction
The Code of Civil Procedure, deals with enforcing the civil rights of the people from every
section of society. Even the minors and lunatics, who were assumed to have no voices of their
own, were not excluded from availing such rights. They have been entitled to special rights and
protection under Order 32 of the CPC. Order 32 (Rules 1 to 16) deals with the “Suits by or
against minors and persons of unsound mind.” It specifically prescribes the procedure for suits
to be filed by or against minors or persons of unsound mind.
Meaning of a minor person
As per Section 3 of the Majority Act of 1875, a minor is a person who has not attained a
majority, that is, who has not attained the age of 18 years. But in the case of a minor for whose
person or property a guardian is appointed by the court or whose property is under the
superintendence of the court of wards, the age of attaining majority is 21 years.
Suit in the name of the next friend
Rule 1 of Order 32 provides that every suit shall be instituted in the name of the minor by the
‘next friend’ of the minor. The ‘next friend’ is any person who has attained majority and is in
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some way related to the minor so as to ascertain his/her interests. The ‘next friend’ will act on
behalf of the minor in suits or proceedings before the court and, in a bonafide manner, represent
his/her interests.
Suits against minors: Rule 3
Where a suit is instituted against a minor, the court should appoint a guardian ad litem to defend
the suit. Such appointment should continue throughout all the proceedings including an appeal
or revision and in execution of a decree unless it is terminated by retirement, removal or death
of such guardian.
Conditions to be appointed as next friend or guardian ad litem: Rule 4
Rule 4 consists of various conditions which need to be fulfilled to be appointed as the next
friend or guardian ad litem. There are mainly four conditions for a person to be appointed as
the next friend or guardian ad litem:
1. A person of sound mind,
2. A person has attained a majority,
3. A person has no adverse interest in the subject matter of the minor,
4. A person is not a defendant in the case of the next friend or not a plaintiff in the case of
guardian ad litem.
Duty of the next friend or guardian
1. Rule 6 specifies that the next friend or the guardian ad litem should not receive any
movable property or money on behalf of the minor, except with the leave of the court.
It could be either by way of a compromise order or through an order or decree of the
court in favour of the minor.
2. Rule 7 cautions the next friend or guardian ad litem to enter into any compromise or
agreement on behalf of the minor in the suit without the permission or leave of the
court. Any such agreement or compromise is voidable against all the parties, except the
minor.
Minor attaining majority: Rule 12-13
When during the pendency of the suit or appeal on behalf of the minor, the minor has attained
majority, the court comes under the obligation to call for the minor and ascertain his/her wishes
as to whether to proceed further with the suit or appeal (Rule 12). This whole process can be
stated as follows:
1. Firstly, it was ascertained whether the minor after attaining a majority, elect to proceed
with the suit or not,
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2. If he/she wishes not to proceed, the suit or appeal will be dismissed by the court and an
order for repayment of the costs will be delivered,
3. If he/she wishes to proceed, an application for the discharge of the next friend is to be
made so that he/she can proceed further in his own name,
4. The title of the suit or application will be transformed,
5. This application for the discharge of the next friend can be made ex-parte but no order
for such discharge should be made without giving notice to the next friend.
Decree against minors: Rule 3-A
A decree passed against a minor without appointment of next friend or guardian is null and
void. But a decree passed against a minor cannot be said to be illegal nor can be set aside only
on the ground that the next friend or a guardian of the minor had an interest in the subject-
matter of the suit adverse to that of the minor. If the minor is prejudiced by reason of adverse
interest of the next friend or guardian, it can be made a ground for setting aside a decree. The
minor may also obtain appropriate relief for misconduct or gross negligence on the part of his
next friend or guardian.
Conclusion
Minors in the public sphere exist as unprotected or vulnerable entities, and they require the
help of their parents and guardians to survive and advance their interests in society. The legal
institution is well aware of this incapability of minors or other persons who, by reason of
unsoundness of mind, or any physical or mental infirmity, are not able to raise their voices for
their protection of rights. Order 32 of the CPC specifically aspires to resolve this issue by
entitling them with certain rights to sue or appeal in court upon any violation of their civil
rights. Rules 1 to 16 are exhaustive enough to deal with the protection of such a vulnerable
section of society.
Question
What is interpleader suit? Explain the conditions and procedure relating to an
interpleader suit.
OR
What is interpleader suit? State the conditions that must be satisfied for filing
interpleader suit and who cannot file this interpleader suit?
Answer
Introduction
Apart from suits of ordinary civil nature disputed between the plaintiff and the defendant there
also exists a category of suits by the name of Interpleader Suits which are disputed between the
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defendants only. Section 88 and Order 35 of the CPC defines and lays down relevant provisions
with respect to the interpleader suit.
Meaning of interpleader suit
The main controversy or dispute in an interpleader suit is between the defendants who interlead
against each other, rather than between the plaintiff and the defendant of a case. An interpleader
suit is characterized by the fact that the plaintiff of the case is not especially involved in the
subject matter of the case. The primary and most important purpose of an interpleader suit is
to have rival defendants’ claims adjudicated, since there must be some debt, capital, or other
property in dispute between the defendants only. It basically means that an interpleader suit is
initiated against each other to settle a point regarding a third party.
Section 88 of the Code enacts that two or more persons claiming adversely to one another the
same debt, sum of money or other property, movable or immovable, from a person who does
not claim any interest therein except the charges and costs incurred by him and is ready to pay
or deliver the same to the rightful claimant, may file an interpleader suit.
Object
The primary object of filing an interpleader suit is to get claims of rival defendants adjudicated.
It is the process wherein the plaintiff calls upon the rival claimants to appear before the court
and get their respective claims decided. The decision of the court in an interpleader suit affords
indemnity to the plaintiff on payment of money or delivery of property to the person whose
claim has been upheld by the court.
Conditions: Section 88
Before an interpleader suit can be instituted, the following conditions must be satisfied:
1. There must be some debt, sum of money or other property movable or immovable in
dispute;
2. Two or more persons must be claiming it adversely to one another;
3. The person from whom such debt, money or property is claimed must not be claiming
interest therein other than the charges and costs and he must be ready and willing to
pay or deliver it to the rightful claimant; and
4. There must be no suit pending wherein the rights of rival claimants can be properly
adjudicated.
Who may file interpleader suit
A person who has no interest in any debt, sum of money or other property, movable or
immovable, except the charges or costs and is ready to pay or deliver the property to the rightful
claimant may file an interpleader suit.
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Who cannot file interpleader suit: Rule 5
An agent cannot sue his principal, or a tenant or his landlord, for the purpose of compelling
them to interplead with persons other than persons claiming through such principals or
landlords. The reason for the rule seems to be that ordinarily an agent cannot dispute the title
of his principal. Likewise, a tenant cannot dispute the title of his landlord during the subsistence
of the tenancy. In Neeraj Sharma v. The District Sangpur Khadi Gram, the Punjab and Haryana
High court stated that agents and tenants are not allowed to file interpleader suits against the
principal and landlords.
Test
In order to decide whether a suit is in the nature of an interpleader suit, the court must have
regard to all the prayers in the plaint. A suit does not become an interpleader suit merely
because the plaintiff requires the defendants to interplead with each other as regards one of the
prayers in the plaint.
Procedure: Order 35 Rules 1-4
Order 35 lays down the procedure for interpleader suits. In every interpleader suit, in addition
to other statements, the plaint also must state that
1. the plaintiff claims no interest in the subject-matter in dispute other than the charges and
costs;
2. the claims have been made by the defendants severally; and
3. there is no collusion between the plaintiff and any of the defendants,
The court may order the plaintiff to deposit the amount or place the property in the custody of
the court and provide costs incurred by him by giving him a charge on the thing claimed.
At the first hearing, the court may declare that the plaintiff is discharged from all liability,
award him costs and dismiss him from the suit. On the basis of evidence available, the court
may also adjudicate the title to the thing claimed. Where it is not possible, the court may direct
that an issue or issues between the parties be framed and tried, one of the claimants be made a
plaintiff in lieu of or in addition to the original plaintiff and the suit shall proceed in an ordinary
manner.
Conclusion
Thus, the Interpleader suit serves as an efficient mechanism to not only aid the plaintiff but
also the courts in reducing the burden of unnecessary suits over the same matter. As already
stated, section 88 and order 35 of the CPC are fundamental provisions in this regard. The
Interpleader suit serves as a significant measure to protect a bonafide person from future
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condemn in terms of non-fulfilment of his or her obligations due to unnecessary confusion
arising due to multiple claims.
Question
What is the special procedure to be followed in a suit by or against partnership firms?
Answer
Introduction
Indian Partnership Act, 1932 defines a partnership as an entity where two or more people join
together with a common object of carrying out the firm’s business and share all the profits and
losses incurred in the business carried out on all or anyone acting for all. A firm does not have
a different legal entity of its own. That means a firm does not have any right to sue or to be
sued by anyone independently since it is not a legal person. Order 30 lays down certain
procedures for suing a firm and being sued by a firm and how to conduct these suits.
Suits by or against partners: Rule 1
Two or more persons claiming or being liable as partners and carrying on business in India
may sue or be sued in the name of the firm of which they were partners when the cause of
action accrued. Any party to a suit may, in such a case, apply to the Court for a statement of
the names and addresses of the persons who were, at the time of the accrual of the cause of
action, partners in such firm.
In a suit by or against a firm, any pleading may be signed and verified by any one of the
partners. Rule 2 of Order 30 provides that, when the partners sue in the name of the firm, the
defendant may in writing demand for the disclosure of the names of the partners of the firm
with their places of residence.
Service of summons
Rule 3 of the Order deals with the way of service of summons on the partners of the firm, and
provides that the service shall be made either;
i. upon any one or more of the partners, or
ii. at the principal place where the partnership firm is conducted upon the person who at
that time is in charge of the management of such place as directed by the court
irrespective of the fact whether or not at that time any of the partners are in India.
However, if the Partnership of the firm has been dissolved and the plaintiff was aware of it,
service of summons shall be made on the persons who are available in India at that time and
who are sought to be made liable.
Rights of suit on death of partner
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Rule 4 provides for the consequences upon the death of a partner. It states that before the
institution of the suit or during the pendency of the suit if the partner dies it shall not be
necessary to include the legal representative in the suit. However, this shall not limit or affect
any rights of the legal representatives of the deceased which may have;
i. application to be made a party to the suit,
ii. enforcement of any claim against the survivor or the survivors.
Appearance by partners: Rule 6-8
The defendant-partners shall appear individually in their own names. All subsequent
proceedings, however, shall continue in the name of the firm. If a notice is served on a person
having control or management over the partnership business, he need not appear unless he is a
partner. Rule 8 enables a person who is served with a summons as a partner to appear under
protest and deny that he was a partner at the material time and have the issue as to his being a
partner tried at the trial. If the Court holds that he was a partner at the material time, it does not
preclude him from denying the liability of the firm. On the other hand, if the Court holds that
he was not a partner of the firm and is not liable as such, it does not preclude the plaintiff from
serving a summons on the firm and proceeding with the suit.
Suits between co-partners
Rule 9 of Order 30 speaks about suits that are instituted between a firm and one or more
partners therein or between firms that have one or more common partners. In such cases, no
execution shall be issued without the leave of the court to safeguard the interest of all the
partners. On an application of leave to issue such execution the court may direct accounts and
inquiries during the time of execution.
Suit against person carrying on business in name other than his own
Rule 10 of Order 30 explains its applicability in cases where a person is carrying on a business
in a name or style other than his own or a Hindu Undivided Family which is carrying out a
business in any name. In such cases, they may be sued in a manner as if it were a firm name
and will be executed according to the provisions under this Order.
Conclusion
The essence of Order 30 lays down the various distinctions of a civil suit concerning a firm at
a non-individual level. The Order was instituted as an enabling provision to facilitate the filing
of suits against firms, as the same is obligated to yield a just compensation if someone is
wronged. If a partner of the firm is found committing fraud legal actions can be taken against
them.
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Question
Explain the inherent powers of the court
Answer
Introduction
Meaning of ‘inherent’ is existing in something as a permanent, or characteristic attribute.
Inherent powers of courts are those powers which may be applied by the court to perform full
and complete justice between the parties before it. It is the duty of the Courts to serve justice
in every case, whether given in this code or not, brings with it the important power to do justice
in the absence of a definite or separate provision. This power is said to be the inherent power
that is maintained by the court, though not conferred.
Inherent powers of the court
The law relating to inherent powers of Court is mentioned in Section 148 to Section 153A,
which deals with the exercise of powers in different situations. Following are the provisions of
Inherent powers of Courts:
1. Section 148 and Section 149 deals with grant or enlargement of time;
2. Section 150 deals with the transfer of business;
3. Section 151 protects the inherent powers of the courts; and
4. Section 152, 153 and Section 153A deals with amendments in judgments, decrees, or
orders or in separate proceedings.
Enlargement of time
Section 148 of the CPC states that where any term is fixed or awarded by the Court for the
doing of any act provided by CPC, it is the discretionary power of the Court that Court may
enlarge such period from time to time, even though the term originally fixed or awarded may
have departed.
In simple words, when a term is fixed by provision for the doing of any act, the Court has the
power to extend such period up to 30 days. This power is exercisable in the deficiency of any
specific provision to the contrary which reduces or rejects or withholds the period. The power
is limited to the extension of the time fixed by it and is of a discretionary nature.
Payment of court fees
Section 149 of CPC, permits the court to allow a party to make up for the lack of court fees due
on a complaint or notice of appeal etc., even after the expiry of the limitation period for filing
of the lawsuit or appeal, etc. Payment of the expected court fee is compulsory for any document
imputable with court fee to be presented in the court. If the necessary court fee is paid within
the time set by the court, it cannot be negotiated as time-barred. Such payment made within the
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time fixed by the court retrospectively validates a faulty document. The power of the court is
discretionary and must be exercised only in the importance of justice.
Transfer of business
Section 150 of the Code declares that where the business of any court is transferred to any other
court, the transferee court will exercise same powers and discharge same duties conferred or
imposed by the Code transfer court.
Ends of Justice
Section 151 deals with Saving of inherent powers of Court. It is not obligatory for the court to
wait for the law made by parliament or order from the higher judiciary. Court has discretionary
or inherent power to make such order which is not given in terms of laws for the security of
justice or to check misuse of the method of the Court.
The scope of exercising of Section 151 of CPC can be represented by some cases as follows:
1. The court may recheck its orders and resolve errors;
2. Issuance of provisional sanctions when the case is not included by order 39 or to place
alongside an ‘ex parte’ order;
3. Illegal orders or orders passed without jurisdiction can be set-aside;
4. Subsequent events in the case can be taken into consideration by the court;
5. Power of Court to continue trial ‘in camera’ or prevent disclosure of its proceedings;
6. The court can erase remarks made against a Judge; and
7. The court can improve the suit and re-hear on merit or re-examine its order.
In the case of Debendranath v Satya Bala Dass, the meaning of “ends of justice” was
explained. It was held that “ends of justice” are solemn words, also these words are not merely
a polite expression as per juristic methodology.
Abuse of process of the court
Section 151 of the CPC provides for the exercise of inherent powers to check the infringement
of the process of the court. Abuse of the powers of the court which happens in unfairness to
party needs to get relief on the ground that the act of a court shall not prejudice anyone. When
a party practices fraud on the court or on a party to a proceeding, the remedies have to be
provided on the basis of inherent power.
Amendment of judgments, decrees, orders, and other records
Section 152 of CPC deals with the amendment of judgements, decrees, and order. According
to Section 152 of CPC, Court has the power to change, either by own actions or on the
application of any of the parties, written or arithmetical mistakes in judgments, decrees or
orders or faults arising from an unexpected lapse or imperfection.
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Section 153 deals with the “General authority to amend.” This Section empowers the court to
amend any fault and error in any proceedings in suits and all required improvements shall be
made for the purpose of arranging raised issues or depending on such proceeding.
Conclusion
Inherent powers are the power of court which are helpful in minimizing litigation, avoid
multiplicity of proceedings and to render complete justice between two parties. Section 148 to
153B of CPC discusses the provisions of the Inherent powers of the Court. These provisions
discuss the enlargement of time, payment of court fees, transfer of the business of one court to
another court, end of justice, abuse of process of the court, amendment of judgement, decree,
orders, and records, etc.
Question
Define Injunction. Explain the grounds and principles to grant a temporary injunction.
OR
What is injunction? State the grounds and procedure for issuing an order of temporary
injunction.
OR
Explain the factors to be considered by the court before granting of temporary
injunction.
Answer
Meaning of injunction
An injunction is a judicial process whereby a party is required to do, or to refrain from doing,
any particular act. It is a remedy in the form of order of the court addressed to a particular
person that either prohibits him from doing or continuing to do a particular act or orders him
to carry out a certain act.
Kinds of injunction
1. Prohibitory Injunction: The Competent Court can grant the Prohibitory Injunction to
restrains or forbids a person from doing some act i.e., the order is passed as not to do
any act. Prohibitory Injunction is also known as preventive or restrictive Injunction.
2. Mandatory Injunction: The Competent Court can grant the Mandatory Injunction to do
some positive act or compels, commands, or orders some person to do something in a
particular manner.
3. Permanent or Perpetual Injunctions: Perpetual/Permanent Injunctions is granted by the
courts to restrain the party forever from doing the act complained of. However, this
perpetual or permanent injunction can only be granted after final hearing and decree
has been passed by the court and this is completely decided on the merits of the case.
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4. Temporary Injunction: Temporary injunction is an interim remedy that is raised to
reserve the subject matter in its existing condition and which may be granted on an
interlocutory application at any stay of the suit. Its purpose is to prevent the suspension
of the plaintiff’s rights. Section 94 of the CPC provides the supplemental proceeding
so that Plaintiff can prevent this right, wherein under section 94 (c) and (e), the Court
may grant a temporary injunction or make such other interlocutory orders. These are
temporary injunction because its validity is until the further order passed by the court
or until the final decree of the case.
Grounds for temporary injunction: Rule 1
Temporary injunction may be granted by a court in the following cases:
1. where any property in dispute in a suit is in danger of being wasted, damaged, or
alienated by any party to the suit, or wrongfully sold in execution of a decree; or
2. where a defendant threatens, or intends to remove or dispose of his property with a view
to defrauding his creditors; or
3. where a defendant threatens to dispossess the plaintiff or otherwise cause injury to the
plaintiff in relation to any property in dispute in the suit; or
4. where a defendant is about to commit a breach of contract, or other
5. where a court is of the opinion that the interest of justice so requires.
Principles for grant of temporary injunction
Before granting a temporary injunction, the court must be satisfied about the following:
1. Prima facie case
2. Irreparable injury
3. Balance of convenience
4. Other factors.
1. Prima facie case: The first rule is that the applicant must make out a prima facie case in
support of the right claimed by him. The court must be satisfied that there is a bona fide
dispute raised by the applicant, that there is an arguable case for trial which needs
investigation and a decision on merits and on the facts before the court there is a
probability of the applicant being entitled to the relief claimed by him. The existence
of a prima facie right and infraction of such right is a condition precedent for grant of
temporary injunction. The burden is on the plaintiff to satisfy the court by leading
evidence or otherwise that he has a prima facie case in his favour.
2. Irreparable injury: The applicant must further satisfy the court about the second
condition by showing that he will suffer irreparable injury if the injunction as prayed
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not granted, and that there is no other remedy open to him by which he can protect
himself from the consequences of apprehended injury. In other words, the court must
be satisfied that refusal to grant injunction would result in "irreparable injury" to the
party seeking relief and he needs to be protected from the consequences of apprehended
injury.
3. Balance of (in)convenience: The third condition for granting interim injunction is that
the balance of convenience must be in favour of the applicant. In other words, the court
must be satisfied that the comparative mischief, hardship, or inconvenience which is
likely to be caused to the applicant by refusing the injunction will be greater than that
which is likely to be caused to the opposite party by granting it.
4. Other factors: The Court also considers some other factors before granting injunction.
The relief of injunction may be refused on the ground of delay, laches, or acquiescence
or whether the applicant has not come with the clean hands or has suppressed material
facts, or where monetary compensation is adequate relief.
Procedure for issuance of injunctions:
1. An application for temporary injunction should be filed with plaint supported by an
affidavit.
2. The Court shall in all cases, before granting an injunction, direct notice of the
application for the same to be given to the opposite party:
3. Provided that, where it is proposed to grant an injunction without giving notice of the
application to the opposite party, the Court shall record the reasons for its opinion that
the object of granting the injunction would be defeated by delay, and require the
applicant-
(a) to deliver to the opposite party, or to send to him by registered post, immediately
after the order granting the injunction has been made, a copy of the application for
injunction together with
(i) a copy of the affidavit filed in support of the application;
(ii) a copy of the plaint; and
(iii) copies of documents on which the applicant relies, and
(b) to file, on the day on which such injunction is granted or on the day immediately
following, that day, an affidavit stating that the copies aforesaid have been so delivered
or sent.
4. In the case of disobedience of any injunction granted or other order made by court or
breach of any of the terms on which the injunction was granted or the order made, the
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Court granting the injunction or making the order, or any Court to which the suit or
proceeding is transferred, may order the property of the person guilty of such
disobedience or breach to be attached, and may also order such person to be detained
in the civil prison for a term not exceeding three months, unless in the meantime the
Court directs his release.
Conclusion
Grant of temporary injunction cannot be requested by the party as a matter of right nor can be
denied by the Court arbitrarily. The injunction is an equitable remedy and attracts the
application of the maxim “he who seeks equity must do equity”. The Court has complete
discretion to grant an injunction or to refuse it. The discretion to be exercised by the Court is
shown by the principles mentioned hereinabove and depends on the facts and circumstances of
each case. The relief cannot be claimed as an affair of right however worthwhile the applicant’s
case may be. The power to grant an injunction must, therefore, be exercised with the utmost
prudence, vigilance, and care.
Question
State the purpose for which receiver can be appointed. What are the powers and
function of receiver and when they can be removed?
Answer
Introduction
In civil litigation, a receiver plays an important role in assisting the court. The Receiver is
considered to be an officer of the court who helps the court to protect and preserve the subject
matter of suit till the time the court decides the matter. The Receiver is liable to take care of
the property just as a prudent man will take care of his own personal property. He should follow
the directions of the court or else his property can be attached by the court to recover the amount
which is due to him.
Meaning of receiver
Under order 40 of CPC, the receiver is an independent and impartial person who is appointed
by the court to administer/manage, that is, to protect and preserve a disputed property involved
in a suit pendente lite. Stated simply, a receiver is one who receives money of another and
renders account. He is not representative of either of the parties in the action, is uniformly
regarded as an officer of the court working in the interest of neither plaintiff nor defendant but
for the common benefit of all the parties.
Object of appointing received
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The primary object of appointment of receiver is to protect, preserve and manage the property
during the pendency of the litigation. A receiver is an officer and is an extended arm and hand
of the court, a part of court machinery by which the rights of the parties are protected. The
purpose of appointment of receiver is to preserve the suit property and safeguard interests of
both the parties to the suit.
Appointment of a receiver
Generally, an application for appointment of receiver is made by the plaintiff in a properly
constituted suit. But a defendant may also apply for appointment of receiver if it is "just and
convenient". Where it appears to the court to be just and convenient, it may appoint a receiver.
Courts in India have very wide jurisdiction to appoint as well as to remove a receiver in the
exercise of their discretion.
The discretion, however, is not absolute, arbitrary, and unregulated. It is a sound and judicial
discretion and must be exercised cautiously, judicially and after considering all the
circumstances of the case for the purpose of serving the ends of justice and protecting the rights
of all the parties interested in the controversy.
Powers of a receiver
A receiver is an officer or representative of the court and he functions under its directions. The
court may confer upon the receiver any of the following powers:
(i) to institute and defend suits;
(ii) to realise, manage, protect, preserve, and improve the property;
(iii) to collect, apply, and dispose of the rents and profits;
(iv) to execute documents; or
(v) such of these powers as it thinks fit.
But he has no power except such as are conferred upon him by the order by which he was
appointed. It is open to a court not to confer all of the above powers. They are conditioned by
the terms of his appointment. But even when full powers are conferred on him, he should take
the advice of the court in all important matters if he wants to protect himself.
A receiver cannot sue or be sued without the leave of the court However, grant of leave is the
rule and refusal an exception. But if the suit is filed without such leave, it is liable to be
dismissed. A receiver is entitled to the remuneration fixed by the court for the services rendered
by him. A receiver is entitled to be indemnified for the debts incurred or contracts entered into
by him in the course of management of the estate.
Functions of a receiver
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1. A receiver has to furnish such security, as the court thinks fit, duly to account for what
he shall receive in respect of the property.
2. He has to submit accounts for such period and in such forms as the court directs.
3. He has to pay the amount due from him as per the direction of the court.
4. Being a representative of the court, he is bound to discharge his duties personally and
cannot delegate or assign any of his rights or duties entrusted to him by the court
5. If the receiver fails to submit accounts, or fails to pay the amount due, or occasions loss
to the property by his wilful default or negligence, the court may direct his property to
be attached and sold and make good any amount found to be due from him.
6. He is not only responsible for sums actually received by him but also for all sums which
he might have received but for his default or negligence.
7. The court has also an inherent power to remove the receiver appointed by it, when he
does not comply with the orders of the court or abuses his powers or authority.
Removal of the receiver
A court appointed receiver can only be removed by order of the court upon the application of
the receiver or any other party. This rule has been held to be permissive and a court may
discharge the receiver before the completion of his/her duties for example where the
appointment has become unnecessary. Where the receiver has completed his/her duties the
receiver, or any other party, must apply for an order removing the receiver and cancelling the
security.
Conclusion
The receiver is an officer of the courts and the subject matter managed by him is considered to
be in custody of the law. The court appoints a receiver when the court is of the opinion that
neither of the party should manage the property till the time the matter is decided. Any person
can become a receiver provided they fulfil the requirements set by the court.
Question
When a commissioner can be appointed? What are his powers
OR
What is a commission? What are the circumstances in which a commission may be
appointed
Answer
Introduction
Sections 75 to 78 deal with the powers of the court to issue commissions and detailed provisions
have been made in Order 26 of the Code. The power of the court to issue commission is
discretionary and can be exercised by the court for doing full and complete justice between the
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parties, it can be exercised by the court either on an application by a party to the suit or of its
own motion (suo motu).
Meaning of commission
Commission is instruction or role given by the Court to a person to act on behalf of the Court
and to do everything that the Court requires to deliver full and complete justice. Such person
who carries out the commission is known as a Court commissioner. Under CPC, the Court
which issues the commission can appoint the commissioner. Section 75, provides that the Court
can issue commission provided the limitations and restrictions applicable.
Purposes of a commission: Section 75
Section 75 enacts that a court may issue a commission for any of the following purposes:
(i) to examine witnesses;
(ii) to make local investigation;
(iii) to adjust accounts;
(iv) to make partition;
(v) to hold investigation;
(vi) to conduct sale; or
(vii) to perform ministerial act.
1. To examine witnesses: Sections 76-78; Order 26 Rules 1-8
As a general rule, the evidence of a witness in an action, whether she is a party to the
suit or not, should be taken in open court and tested by cross-examination. Inability to
attend the court on grounds of sickness or infirmity or detriment to the public interest
may justify issue of a commission. The court has a discretion to relax the rule of
attendance in court where the person sought to be examined as a witness resides beyond
the local limits of the jurisdiction of the court or on any other ground which the court
thinks sufficient can be examined on commission.
2. To make local investigation: Rules 9 and 10
The court may, in any suit, issue a commission to such person as it thinks fit directing
him to make local investigation and to report thereon for the purpose of (a) elucidating
or clarifying any matter in dispute, or (b) ascertaining the market value of any property
or the amount of any mesne profits or damages or annual net profits.
The object of local investigation is not to collect evidence which can be taken in court
but to obtain evidence which from its very peculiar nature can be had only on the spot.
Such evidence enables the court to understand and assess the evidence on record and
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clarify any point which is left doubtful properly and correctly. It also helps the court in
deciding the question in controversy pending before it.
3. To adjust accounts: Rules 11 and 12
In any suit in which an examination or adjustment of accounts is necessary, the court
may issue a commission to such person as it thinks fit directing him to make such
examination or adjustment. The court, for this purpose, shall issue necessary
instructions to the Commissioner. The proceedings and the report if any of the
Commissioner shall be evidence in the suit.
4. To make partition: Rules 13 and 14
Where a preliminary decree for partition of immovable property has been passed, the
court may issue a commission to such person as it thinks fit to make a partition or
separation according to the rights declared in such decree. The Commissioner shall,
after such inquiry as may be necessary, divide the property into the required number of
shares and allot them to the parties. He will then prepare a report appointing the share
of each party and distinguishing the same by meters and bounds and transmit it to the
court. The court shall, after hearing the objections of different parties, make the final
allotment.
5. To hold investigation: Rule 10-A
Where any question arising in a suit involves any scientific investigation which cannot,
in the opinion of the court, be conveniently conducted before the court, the court may,
if it thinks it necessary or expedient in the interest of justice so to do, issue a commission
to such person as it thinks fit, directing him to inquire into such question and report
thereon to the court."
6. To sell property: Rule 10-C
Where, in any suit, it becomes necessary to sell any movable property which is in the
custody of the court pending the determination of the suit and which cannot be
conveniently preserved, the court may, if, for reasons to be recorded, is of opinion that
it is necessary or expedient in the interest of justice so to do, issue a commission to such
person as it thinks fit, directing him to conduct such sale and report thereon to the
court."
7. To perform ministerial act: Rule 10-B
Where any question arising in a suit involves the performance of any ministerial act
which cannot, in the opinion of the court, be conveniently per formed before the court,
the court may, if, for reasons to be recorded, is c opinion that it is necessary or expedient
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in the interest of justice so to do issue a commission to such person as it thinks fit,
directing him to perform that ministerial act and report thereon to the court.
Powers of the commissioner: Order 26 Rule 16-18
Under order 26 rule 16, powers of a commissioner are as follows:
1. Commissioner has the authority to examine the parties and the witnesses and any other
person who the commissioner thinks can give evidence in the matter referred to him.
2. Commissioner can direct the parties to produce any documents which is required to be
examined.
3. Commissioner also has the power to enter and search any land or building with the
permission of the Court.
4. If the party fails to appear before the commissioner after the order of the Court, the
commissioner can proceed ex parte.
Conclusion
The commission is issued by the Court to provide full and complete justice. The Court has the
power to issue commission in certain circumstances. Commissioner is appointed by the Court
to carry out the commission issued by the Court. He assists the Court by taking evidence,
conducting local investigations, doing ministerial work and submits a report after carrying out
the commission.
Question
What are appeals? State the classes of appeal provided under C.P.C.
OR
Discuss the provisions of the Civil Procedure Code, 1908 in respect of appeals against
decrees.
Answer
Introduction
An appeal is a remedial concept determined as an individual’s right to seek justice against an
unjust decree/order via referring it to a Superior Court. Sections 96 to 99A; 107 to 108 & Order
41 of the Code deal with appeals from original decrees known as First appeals.
Meaning of Appeal
The term ‘appeal’ nowhere has been defined under the CPC. The Black’s Law Dictionary,
explains it as “the complaint to a superior court for an injustice done or error committed by an
inferior one, whose judgment or decision the Court above is called upon to correct or reverse.
It is the removal of a cause from a Court of inferior jurisdiction to one of superior jurisdiction,
for the purpose of obtaining a review and retrial.”
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Essentials of appealing cases
An appeal is a proceeding where a higher forum reconsiders the decision of a lower forum, on
questions of law & fact with jurisdiction to confirm, reverse, modify the decision, or remand
the matter to the lower forum for fresh decision in compliance of its directions. The essentials
of appealing cases can be narrowed down to 3 elements:
1. A decree passed by a judicial/administrative authority;
2. An aggrieved person, not necessarily a party to the original proceeding; and
3. A reviewing body instituted for the purposes of entertaining such appeals.
Classes of appeal under CPC
1. Appeal from Original Decree/ First Appeal: Section 96 of the Code provides that the
first way of challenging the decree, passed by a court exercising the original
jurisdiction, is by filing an appeal in the court 'authorized to hear appeals' from the
decisions of such court. It also provides that, an appeal may lie from an original decree
passed ex parte, i.e., without hearing the other party. No appeal will lie from a decree
passed by the Court with the consent of parties.
This kind of appeal is also known as 'the first appeal'. It is permissible for the appellate
court to re-examine and re-appreciate the evidence, in the first appeal. The right to
institute the suit is an inherent right, but the right of appeal is statutory. (Baldev Singh
v. Surendra Mohan Sharma).
2. Appeals from Appellate Decrees/Second Appeal: Section 100-103 and 108 of CPC
deals with the second appeal. This part of the code contains provisions relating to appeal
from 'appellate decrees' unlike from original decree. As the word 'second appeal' clearly
denotes, it is an appeal filed against the order of an appellate court. Second here denotes
the number of appeals, in laymen terminology. Section 100 provides that an appeal shall
lie to the High Court from every decree passed in appeal by any Court subordinate to
the High Court if the High Court is satisfied that the case involves a substantial question
of law. It must be noted that second appeal only lies on the substantial question of law,
not on the question of facts.
Substantial question of law' means not only substantial questions of law of general
importance but also the 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." The jurisdiction of the High Court is now confined to entertain only such
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appeals as involve a substantial question of law set out in the memorandum of appeal
and formulated by the High Court.
First appeal Second appeal
Sections 96 to 99-A, 107 and Order 41 deal Section 100 to 103 and Order 42 deal with
with First appeal, Second Appeal,
A first appeal lies against a decree passed by A second appeal lies against a decree passed
a court exercising original jurisdiction, by a first appellate court,
The first appeal can be admitted on the The second appeal can only be admitted only
grounds of question of fact, and question of on the point of ‘substantial question of law’.
law, or on a mixed question of fact and law,
The first appeal can be entertained by The second appeal can only be entertained by
a subordinate Court which may or may not the High Court,
be a High Court,
The Memorandum of first appeal must set It needs not set out the grounds
out the grounds of objections to the decree of objections to the decree appealed from.
appealed from.
3. Appeals from Orders: It is a general rule created under the Code that only decrees are
appealable and orders are non-appealable. However, there can be circumstances where
an order can largely affect the rights of the parties to a suit and therefore, Section 104
was enacted to provide a list of orders from which an appeal lies.
4. Appeals to the Supreme Court: Article 132 provides for an appeal to the Supreme Court
of any judgement, order or decree from civil or criminal cases or any other proceedings.
Supreme Court is the topmost forum in the hierarchy of the Court. It is primarily the
Court of appeal. It is the highest forum for appeal in the country. The power of appellate
jurisdiction is given to the Supreme Court, by the Indian Constitution under Article 132,
133, 134, 134A.
5. Appeals By Indignant Persons.: Any person who is incapacitated to remit the fee
required to file the memorandum may file an appeal as an indignant person. If the court
declines the application of a person to appeal in this manner, it may necessitate the
applicant to remit the required court fee within a prescribed time-frame.
Conclusion
A memorandum of appeal is different from a petition. Therefore, no enumeration of the facts
of the case, no complaint against the high handedness of the other party, no plea of the helpless
condition of the appellant and no plea for the sympathy of the court should find any place in
the memorandum.
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Question
Explain the term reference. State the circumstances on which reference can be made
and how does it differ from Review.
Answer
Introduction
In the court, every day so many cases are instituted by persons. Every case has a different
circumstance. While hearing of these cases different questions arise before the court and court
has to decide all the questions according to the law. But sometimes such questions arise that
deserve the opinion of the High Court. Such an opinion can be sought when the court itself
feels some doubt about a question of law. The High Court may make such order thereon as it
thinks fit.
Meaning of Reference
Section 113 of Civil Procedure Code deals with the provision of reference. Under the provision
of Section 113, a lower or subordinate court can reach out to high court for the doubt in order
to avoid the misinterpretation of the law which is called reference.
Parties through an application can move the reference to the High court. Lower Court can apply
the provision of reference suo-moto in case of any doubt with respect to any legal provision.
The lower court is not bound to refer to the High Court other than in case of validity of legal
provision. It helps the lower court to avoid commission of error while pronouncing the
judgement.
The underlying object for the provision for reference is to enable subordinate courts to obtain
in non-appealable cases the opinion of the High Court in the absence of a question of law and
thereby avoid the commission of an error which could not be remedied later on. Such provision
also ensures that the validity of a legislative provision (Act, Ordinance or Regulation) should
be interpreted and decided by the highest court in the State. The reference must, therefore, be
made before passing of the judgment in the case.
Circumstances where reference can be made
The right of reference, however, is subject to the conditions prescribed by Order 46 Rule 1 and,
unless they are fulfilled, the High Court cannot entertain a reference from a subordinate court.
The rule requires the following conditions to be satisfied to enable a subordinate court to make
are
1. There must be a pending suit or appeal in which the decree is r subject to appeal or a
pending proceeding in execution of such decree;
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2. A question of law or usage having the force of law must arise in the course of such suit,
appeal or proceeding; and
3. The court trying the suit or appeal or executing the decree ma entertain a reasonable doubt
on such question.
Questions of law on which a subordinate court may entertain a doubt may be divided into two
classes: Those which relate to the validity of any Act, Ordinance or Regulation; and Other
questions.
Under the second condition, reference is optional but in the first condition i.e., a question
related to any Act, Ordinance or Regulations, reference is obligatory. Reference is obligatory
in such condition when the following conditions are fulfilled:
1. In order to dispose of the case, the decision of such question is necessary.
2. The subordinate court seeking reference is of the view that the Act, Ordinance, or
regulation is ultra vires.
3. There is no determination that such Act is ultra vires either by the Supreme Court or
the High Court to which the court is subordinate to.
A reference can be made by the judge only in the case when the judge who is dealing with that
case has a reasonable doubt about it. When any matter is already decided by the High Court to
which the court seeking reference is subordinate to then it is not considered as a reasonable
question of doubt.
Review
Section 114 of Civil Procedure Code defines the provision of review. In case of review, the
party who is not happy or aggrieved with the order of the court can file an application for
review in the same court which has passed the decree. This provision has been made so as to
facilitate the court to review their own decree or judgement and rectify the same in case any
error has been made while passing the judgement.
It was held in case of Ram Baksh v. Rajeshwari Kunwar, that the option of review is still there
even if the appeal has been dismissed on any ground.
Order 47 of the CPC defines the procedure to be followed in case of review. In the following
situation, the application for review can be filed by the parties:
1. The decree or judgement is appealable however, no appeal has been preferred under the
law.
2. In case of no provision for appeal has been mentioned in the law for certain decree or
judgement.
3. The Court of Small Causes has passed the decision.
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Difference between Reference and review
1. In reference, it is the subordinate court and not the party which refers the case to the
High Court. In case of review, the application is made by the aggrieved party.
2. The High Court alone can decide matters on reference. Review, on the other hand, is
by the court which passed the decree or made the order.
3. Reference is made pending a suit, appeal or execution proceedings, while an application
for review can be made only after the decree is passed or order is made.
4. The grounds for reference and review are different.
Generic Conclusion
Question
Examine the circumstances for invocation of revisional jurisdiction of High Court.
OR
What is revision? How does it differ from an appeal?
OR
Explain 'Revision'. What are the conditions for exercise of revisional jurisdiction
Answer
Introduction
Civil Procedure Code, 1908 is a procedural law related to the administration of civil
proceedings in India. Section 115 of the Civil Procedure Code, 1908 provides the provisions
on the Revision. It empowers the High Court to look into the cases which have been decided
by the subordinate courts. Hence, the High Court has revisional jurisdiction. In other words,
the Higher courts exercise the power of supervision on the lower courts. Section 115 limited to
errors of jurisdiction only.
Object
1. The main object of the revision is to prevent the subordinate court from acting
arbitrarily or illegally.
2. To empower the High court to look at proceedings of the subordinate court are in
accordance with the law and acting within the jurisdiction of the court.
3. To correct the errors of jurisdiction done by the subordinate courts.
4. To ensure the aggrieved party that if the order passed against them is non-appealable
then it can be rectified by the High Court.
The application for revision can be filed by any aggrieved party once the case is decided,
provided that there is no appeal against the case presently. The High Court may then decide to
revise the case if the proper cause is discovered such as extra-judicial activity or illegal and
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erroneous procedure practised by the subordinate court. The High Court may also exercise
revisional jurisdiction suo moto under the Code of Civil Procedure.
Conditions for Revision
1. A case has been decided: the Supreme Court in Baldevdas Shivlal v. Filmistan
Distributors (India) (P) Ltd.", held that a case may be said to have been decided if the
court adjudicates for the purpose of the suit some right or obligation of the parties in
controversy. Every order in the suit cannot be regarded as a case decided within the
meaning of Section 115 of the Code.
2. The court, which has decided the case must be a court subordinate to high court: The
High Court cannot exercise revisional jurisdiction unless the case is decided by a court
and such court is subordinate to the High Court. A court means a court of civil
judicature. It does not include any person acting in an administrative capacity.
3. The order should not be an appealable one: The revisional jurisdiction of the High Court
can be invoked in respect of any case in which no appeal lies to the High Court.40 The
word "appeal" includes first appeal as well as second appeal. Therefore, where an
appeal lies to the High Court either directly or indirectly, revision under Section 115
does not lie. On the other hand, where no first or second appeal lies to the High Court,
the revision is competent.
4. Jurisdictional error: The revisional jurisdiction can be applied by the High Court when
the subordinate court appears to have:
i. Acted in excess of jurisdiction vested in it by law- Here, the assumption of the
subordinate court is that it vested some powers but in reality, the subordinate
court does not have such powers and acted beyond its boundaries. In such cases,
the High Court is empowered to correct the decision given by the subordinate
court.
ii. Failed to exercise the jurisdiction vested in it by law- If the subordinate court
having power vested in it but not acting accordingly and declines to exercise its
duty or act then revisional power of the High Court takes place or High can
interfere in such case.
iii. Displayed material irregularity and exercised its power illegally or in breach of
the provisions of law- When the subordinate court does not act legally or acting
arbitrarily, capriciously in the exercise of their jurisdiction. In simple words
when the court misuses its powers and in case of errors of jurisdiction
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committed by the Subordinate Court, the revisional jurisdiction taken by the
High Court.
Limitations on revisional jurisdiction
Article 131 of the Schedule of Limitation Act provides a limitation period of 90 days for filing
the revision under the Code of Civil Procedure from the date of decree or order or sentence
sought to be revised. Thus, the limitation period prescribed for filing the revision against the
impugned order is 90 days. The application for revision must be filed with the High Court
within the limitation period.
Distinctions between
Revision and Appeal
Revision Appeal
An application for revision can only be made An appeal can be made in any court superior
in the High Court. to the one that passed the order or decree.
An application for revision can only be made An appeal can be made on a superior court
to the High Court challenging any decision after a decree or order is passed by a lower
of the subordinate court when no appeal lies court.
against the decision in the specified case.
The revisional power is under the discretion The right to appeal has been provided as a
of the High Court and cannot be claimed as a substantive right by the statue.
right by any aggrieved party.
Any case can be revised on the grounds of An appeal can be made against a judgement
jurisdictional error by the subordinate court. on the question of fact, or law, or both.
The High Court can exercise the powers of An appeal can only take effect after a
revision by suo moto and filing an memorandum of appeal is filed by the
application is not necessary. aggrieved party before a superior court.
Conclusion
The power of revision of the High Court is exceptional and should be exercised when necessary
in cases where there is a defect in the proceedings due to jurisdictional error in the subordinate
courts which may result in a miscarriage of justice and beats the purpose of the rule of law.
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SHORT ANSWERS
Question
Interim order
Answer
The words “interim order” means temporary order passed by the court to maintain the “status
quo” during the pendency of the suit and to ensure that, during the course of the proceedings,
no harm should be caused to the interest of the parties involved in the suit and, before the final
hearing, the subject matter of the suit shall not become abortive or a fait accompli.
The main motive of passing an interim order is to safeguard the plaintiff from irrecoverable
losses. If later, the uncertainty of the matter in the suit is resolved in favour of the plaintiff then
it should not happen that the plaintiff will not get sufficient compensation in the lawsuit because
of that irreparable loss. So, interim orders are passed by the court but these orders are passed
only on the basis of the primary findings if prima facie court feels that an interim order should
be passed then a court can pass it but one should not forget that these orders are tentative.
Interim Order under CPC
Interim orders under CPC may be condensed under-
1. Payment in Court: Order 24
In a suit for debt or damages, it is open to the defendant that he can deposit such sum of money
as he considers a satisfaction in full of the plaintiff’s claim at any stage of the proceeding of
the matter. If the plaintiff accepts the money when it fully meets its requirements, the court
shall record its statement and pronounce its judgment accordingly. On the other hand, if the
plaintiff accepts the payment as a satisfactory amount in part of his claim, he has the right to
file a lawsuit to recover the balance. However, if it is finally found that the deposit fully meets
the requirements of the plaintiff, the plaintiff shall pay all expenses incurred after the deposit.
2. Security for Costs: Order 25
It is pointed out in Order XXV Rule 1 that the court can order the plaintiff to provide security
at any stage of the litigation to pay the costs incurred by the defendant. The court can exercise
this power at the request of the defendant or can take a suo moto cognizance. However, the
court should make this order in the following circumstances:
i. The plaintiff lives outside of India, or there are two or more plaintiffs, and they all live
outside of India; and
ii. The sole plaintiff or no plaintiff owns sufficient real estate other than litigation property
in India.
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3. Commissions: Order 26
Section 75 to 78 of the CPC deals with the power of the court to issue a commission, which
has been further detailed in Order 26 of the Code. The power of the court to issue commissions
can be exercised by the court on its discretion. The court establishes complete justice between
the parties. The court can exercise this right at the request of the parties involved in the litigation
or by a suo moto action. According to Section 75, a court may issue a commission for any of
the 7 purposes.
4. Arrest before Judgment: Order 38
Generally, the arrest of an accused (as the execution of decree) took place after passing of the
decree but in certain exceptional cases, an accused can be arrested before passing of the
judgment. The main purpose of this order is to prevent the defendant from making any attempt
to defeat or escape from any liability imposed by the court on him and protect the interest of
the plaintiff.
5. Attachment before Judgment: Order 38, Rule 5- 13
Similar to arrest before judgment, the court in certain conditions may order attachment before
judgment. The main purpose of attachment before the judgment is to prevent the defendant
from attempting to undermine, execution of the decree against him.
6. Temporary Injunctions: Order 39
An injunction is a remedy issued to a person in the form of a court order that prohibits the
person from engaging in or continuing to perform a specific act or ordering him to perform a
certain act.[27] The main purpose of granting interim relief is to retain the disputed property
until the court determines the legal rights and conflicting requirements of the parties.
7. Interlocutory Orders: Order 39
Rule 6 of Order 39 authorizes the court to order, in certain conditions, the sale and purchase of
perishable goods. Rule 7 empowers courts to authorize any person to enter into any land or
building owned by any party for sampling, observation, or experimentation for detention,
preservation, or inspection of the property which is the subject matter of the suit. Rule 8
requires courts, before making such an order, to notify the other party, unless it appears that
the purpose of making such an order will be defeated due to delay.
8. Receiver: Order 40
A receiver is an independent person appointed by the court between the parties to the litigation.
He can accept the funds or property in the litigation, whenever it is believed by the court that
it is unreasonable for either of the party to hold property or funds. The main object behind
appointing a receiver is to preserve, protect, and manage the property of the suit and safeguard
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the interests of both litigants involved in litigation, in the course of the pendency of the
litigation.
Conclusion
It could be said that interim orders play a very vital role in smoothly conducting litigation
proceedings as they help in dealing and protecting the rights of the litigants in the period
between the commencement of proceedings and pronouncement of final judgment. To
preserve, protect and spread justice in society courts require this power of passing interim
orders because with the help of it they would be able to avert the defendant from escaping
liability which could be imposed on him by the court at the time of final adjudication of the
matter.
Question
Caveat petition
Answer
The caveat is a Latin term that means “let a person be aware” and dates back to the mid-16th
century. A caveat petition follows the rule of Audi Alteram Partem and can be filed by anyone
who believes that civil litigation has been filed or is about to be filed against him.
A caveat is a precautionary measure taken by a person who is worried that someone will file a
case against that person in court. As a result, it is a notice that notifies a person when the court
is about to take legal action against that person. It is filed only in civil matters.
Meaning of caveat petition
The Code doesn’t define the word “Caveat.” However, the Court defined the word caveat in
the case of Nirmal Chand v. Girindra Narayan, wherein it stated that “The term ‘caveat’ is very
common in testamentary proceedings. A caveat is a caution or warning giving notice to the
Court not to issue any grant or take any step without notice being given to the party lodging
the caveat. It is a precautionary measure taken against the grant of probate or letters of
administration, as the case may be, by the person lodging the caveat”
Objective of caveat
The underlying object of a caveat is two-fold:
Firstly, to safeguard the interest of a person against an order that may be passed on an
application filed by a party in a suit or proceeding instituted or about to be instituted.
Secondly, it seeks to avoid multiplicity of proceedings.
Who can lodge a caveat petition
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Section 148 A specifies who is eligible to file a caveat petition. This is provided under clause
1 of Section 148 A, which states that a person who claims to have a right to appear in court
may file a caveat petition in the following circumstances:
1. Where there is the apprehension of application.
2. Where an application has already been submitted.
3. In a suit that is expected to be filed against him.
4. In an already instituted suit.
Rights and duties as per Section 148 A
Section 148-A specifies the rights and duties of the following:
Of caveator
A caveator is a person who files the caveat petition. He is required by law to perform certain
duties, as specified in clause 2 of Section 148 A of the Code. The caveator must send a notice
of the caveat petition to the opposite party (applicant). The opposite party is the person who
has filed or may file an application for an interim order against the caveator.
Of the court
This section imposes duties on the court as well, as stated in clause 3. It states that if an
application is filed after a caveat has been lodged under clause 1, the court shall serve notice
of the application on the caveator.
Of the applicant
Clause 4 of the provision specifies the applicant’s duties. It states that if the applicant receives
a notice of any caveat, he is required to provide, at the expense of the caveator
1. A copy of his application.
2. Copies of any documents or papers he has filed in support of his application.
3. Copies of papers and documents that he may file in support of his application.
Conclusion
The caveat is a petition filed before the court by a party stating that if the opposing party
institutes a suit, appeal, or other proceedings against him/her, the court must notify the party
filing the caveat. Section 148A of the Code of Civil Procedure grants a person the right to
prevent the court from issuing ex parte orders or judgments in civil matters. If the court does
not notify the caveator before passing the order or judgment, the order or judgment becomes
void.
Question
Stay of suits
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Answer
(Res-subjudice?)
Question
Interlocutory applications
Answers
The term “Interlocutory Application has been defined under Black’s Law Dictionary as A
motion for equitable or legal relief sought before a final decision. “Interlocutory application”
means an application to the Court in any suit, appeal or proceeding already instituted in such
Court, other than a proceeding for execution of a decree or order. The orders which are passed
in those applications are called as interlocutory orders.
The Interlocutory applications are purely temporary in nature, and therefore are not related to
the subject matter or main proceedings of the suit and are capable of being altered or varied by
subsequent applications for the same relief, generally on proof of new facts or developments
which might subsequently arise during the pendency of a suit.
Rules 6 to 10 of Order 39 provide for making certain interlocutory orders. The court has power
to order sale of perishable property in certain circumstances.
It can also order for detention, preservation or inspection of any property which is the subject-
matter of such suit.
For that purpose, it can authorise any person to enter upon or into any land or building in the
possession of any party for taking, samples or making observations or trying experiments
However, before making such orders the court shall give notice to the opposite party except
where it appears the object of making such orders would be defeated by the delay.
Where the suit land is liable to payment of revenue to government and the party in possession
of such land neglects to pay revenue, any other party to the suit claiming an interest in such
land may, on payment of the revenue, be put in immediate possession of the property. The court
may award in the decree the amount so paid with interest thereon against the defaulter.
Where a party to a suit admits that he holds money as a trustee for another party, the court may
order him to deposit such amount in court.
Question
Attachment before judgement.
Answer
Various interim orders are enumerated under the Code of Civil Procedure, 1908 (CPC), which
are temporary orders given during the suit’s pendency so as to safeguard the subject matter of
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the suit wherein Order 38 Rules 5-13 exclusively concerns the attachment before judgement.
Like arrest before judgement, the court may order attachment before judgement in peculiar
circumstances.
Remedy of attachment before judgment is extraordinary in nature and r be exercised with
utmost care, caution and circumspection. Before making must an order of attachment before
judgment, the court must ensure that the action does not become an engine of oppression.
The primary object of attachment before judgment is to prevent any attempt on the part of the
defendant to defeat the realisation of the decree that may be passed against him.88 It thus
prevents any attempt on the part the defendant to defeat realisation of the decree passed in
favour of the plaintiff,
Conditions
Before an order for attachment before judgment is made, the court must be satisfied that the
following conditions have been complied with:
(i) the defendant is about to dispose of the whole or any part of his property
(ii) such disposal is with the intention of obstructing or delaying the execution of any decree
that may be passed against him.
Conditional attachment: A notice is not necessary under these cases. However, an
opportunity lies with the Defendant to show cause against attachment of his property. It is only
after Defendant has been given an opportunity to be heard that a final attachment order is
passed. Therefore, this is not an attachment by itself as it will be ineffective until attachment is
carried out in accordance with the procedure laid down in the code.
Effect of attachment
Attachment order is a guarantee for fulfilling a decree’s fruits which might become infructuous
for want of property. Furthermore, an order of attachment is appealable and can be revised by
the High Court.
Withdrawal of attachment
In case Defendant pays security, an order of attachment must be withdrawn. Moreover, when
the suit is dismissed, or security is paid then also the order of attachment is withdrawn.
Attachment on insufficient grounds
On Defendant’s application being made against the court’s order for attachment on insufficient
grounds claimed by the plaintiff or when Plaintiff’s suit fails subsequently, and as per the court
there lied no sufficient grounds for institution of such claim, then the Plaintiff may be ordered
to pay an amount, not exceeding fifty thousand rupees, to make good the loss of reputation and
expense to him. In the case of wrongful attachment, a suit can be instituted to claim damages.
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Conclusion
The objective behind ordering attachment before judgement is to prevent the defendant’s
attempt to defeat getting the fruits of the decree passed in favour of the plaintiff. The code
enumerates provisions relating to attachment of property before judgement under Order 38
Rule 5.
Questions
1. Commission
2. Temporary injunction
3. Distinguish between Reference and Review.
4. Appeals.
5. Inter-pleader-suit.
6. Indigent persons
7. Garnishee order
8. Inherent powers of court.
Answer
From long answers
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UNIT 5
LONG ANSWERS
Questions
Explain the salient features of limitation act.
Answer
Introduction
The word limitation in its literal term means a restriction or the rule or circumstances which
are limited. The law of limitation has been prescribed as the time limit which is given for
different suits & proceedings to the aggrieved person within which they can approach the court
for redress or justice. The basic concept of limitation is relating to fixing or prescribing of the
time period for barring legal actions.
Meaning of period of limitation
According to Section 2 (j) of the Limitation Act, 1963, ‘period of limitation’ means the period
of limitation prescribed for any suit, appeal or application by the Schedule, and ‘prescribed
period’ means the period of limitation computed in accordance with the provisions of this Act.
Objective of the act
According to Halsbury’s Laws of England, the Main Objects of the Law of Limitations are as
follows:
1. Long dormant claim has more of cruelty than justice in them.
2. A defendant might have lost the evidence to dispute the State claim.
3. A person with only good cause of actions should pursue them with.
4. There are two major considerations on which the Doctrine of Limitation and
Prescription are based on – firstly, the rights which are not exercised for a long time are
said to be as non-existent and secondly, the rights which are related to property and
rights which are in general should not be in a state of constant uncertainty, doubt and
suspense.
Salient features of the act
1. The Limitation Act contains 32 Sections and 137 Articles. The articles have been
divided into 10 parts. The first part is relating to accounts, the second part is relating to
contracts, the third part is relating to declaration, the fourth part is relating to decrees
and instrument, the fifth part is relating to immovable property, the sixth part is relating
to movable property, the seventh part is relating to torts, the eighth part is relating to
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trusts and trust property, the ninth part is relating to miscellaneous matters and the last
part is relating to suits for which there is no prescribed period.
2. The Law of Limitation is an adjective Law. It is lex fori. Thus, it can be said that the
rules of the Law of Limitation are generally concerned with the rules of procedure and
which do not create any rights in favour of any particular person nor do they define or
create any cause of action. It has been simply prescribed that the remedy can be
exercised only for a limited fixed period of time and not subsequently
3. The rules of limitation are not meant to destroy the rights of the parties. They are meant
to see that the plaintiff do not take dilatory tactics but seeks remedy within the period
stipulated by the legislature. The rules of limitation thus will only bar the remedy but
does not extinguish the right. The right continues to exist even through remedy is barred
by limitation. Therefore, a debtor may pay the time barred debt and cannot claim it back
on the plea that it was barred by limitation.
4. The Limitation Act, 1963 has a very wide range considerably to include almost all the
Court proceedings. The definition of ‘application’ has been extended to include any
petition, original or otherwise. The change in the language of Section 2 and Section 5
of the Limitation act, 1963 includes all the petition and also application under special
laws
5. Time for limitation runs when the cause of action accrues. However, certain exceptions
were provided in Sections 4 to 8. Section 4 provides that if the period prescribed expires
on a day when the Court is closed, the application etc, may be made on the day, the
Court reopens. As per Section 5 condonation of delay is allowed on sufficient grounds.
Sections 6, 7& 8 allow extension of time in certain cases of disability.
6. The Supreme Court in Thirumalai Chemicals Ltd v. Union of India determined that
statutes of limitation area unit retrospective thus far as they apply to all or any legal
proceedings brought when their operations for implementing causes of action
accumulated earlier.
7. After 1909 the code has been amended more than 35 times due to dynamic and changing
needs.
Conclusion
Question
Once the time has begun to run, no subsequent disability or inability can stop it".
Discuss
Answer
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Introduction
The Limitation Act is a statute that sets out the time limits within which legal proceedings must
be brought in relation to a specific cause of action. One of the key provisions of the Limitation
Act is the concept of "continuous running of time." This refers to the idea that the time limit
for bringing a legal claim begins to run from the date that the cause of action arises, and
continues to run until the claim is brought or until it is barred by the expiration of the time
limit.
Section 9 of Limitation Act:
This section is founded on the general principle that when once limitation has commenced
running, it will continue to do so unless it is stopped by virtue of any express statutory
provisions. Once the period of limitation commences it cannot be stopped or be avoided by
introducing another cause of action or relief in the suit or by reformulating them.
Continuous Running of Time
The rule as to the continuous running of time is one of the fundamental principles of the law
of limitation, this rule says that where once time has begun to run, it runs continuously and
without any break or interruption until the entire prescribed period has run out, and no disability
or inability to sue, occurring subsequently to the commencement will stop it running.
Scope of Section 9:
Section 9 is based on the general principle that once time has begun to run, it will continue to
do so unless stopped by virtue of any express statutory provision. Section 9 does not affect any
exemption from the limitation which may operate without stopping time from running.
Essentials
(i) Time Has Begun to Run: For the applicability of section 9, it is necessary that time has
begun to run. Generally, the time begins to run when the cause of action accrues and the true
test to determine when the cause of action has accrued is to ascertain the time when the plaintiff
could have first maintained his action to a successful result.
(ii) Disability or Inability to Sue: This includes disability to make applications for execution as
well. Disability means the want of legal qualification to act and inability means the want of
physical power to act. This disability is the state of being a minor insane or an idiot, whereas
illness, poverty, etc. are instances of inability.
(iii) Subsequent Disability or Inability: To apply this section. it is necessary that the disability
or inability must accrue subsequent to the cause of action.
(iv) Disability or Inability of Plaintiff: The expression disability or inability to sue refers to
something which pertains to the plaintiff.
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The Proviso of section 9 of the Limitation Act:
The proviso applies only to an Administrator under the grant of letters where he is a debtor of
the deceased. It does not apply to a case where there has been a fusion of interests of the
mortgagor and the mortgagee in the same person.
Exceptions
1. As per section 14 of the act, when a plaintiff is part of another suit proceeding, then the
time spent in it shall be excluded.
2. Section 13 stipulates that the time spent for prosecuting an application for leave to sue
or appeal as a pauper shall be excluded.
3. Under Section 12, In computing the period of limitation prescribed for an appeal, an
application for leave to appeal, and an application for a review of the judgment, the
time requisite for obtaining a copy of the decree, sentence, or order appealed from or
sought to be reviewed shall be excluded. Likewise, in the case of an application to set
aside an award, the time requisite for obtaining a copy of the award shall be excluded.
4. According to the proviso to section 9, where letters of administration to the estate of a
creditor are granted to his debtor, the running of the time prescribed for a suit to recover
the debt shall be suspended, while the administration continues.
5. When notice has been given before the institution of the suit in accordance with the
law. The limitation shall be suspended during the period of notice. In computing, the
period of limitation prescribed for any suit of which notice has been given in accordance
with the requirements of any enactment for the time being in force, the period of such
notice shall be excluded.
6. When an injunction order has been obtained to stay the institution of a suit. In
computing the period of limitation prescribed for any suit or application for the
execution of a decree, the institution or execution of which has been stayed by
injunction or order, the time of the continuance of the injunction or order, the day on
which it was issued or made and the day on which it was withdrawn shall be excluded.
Conclusion
Sec. 9 of the Limitation Act, of 1908 says that once time has begun to run, it continues to do
so until the entire prescribed period has run out. This rule of section 9 is applicable to suits as
well as applications. This rule is subject to certain exceptions where time may be suspended
for a certain time. These are, however, certain circumstances which suspend interrupt or extend
the run of the limitation and there are certain cases where the limitation does not run at all
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Question
Discuss the provisions of limitation Act governing the condonation of delay.
OR
Explain the circumstances in which the delay will be condoned under the Limitation
Act.
Answer
Introduction
Condonation of delay is a doctrine mentioned in the Limitation Act, 1963. The Act postulates
time-limits for different suits and mentions the time period within which a suit, appeal or
application can be instituted. The expiry of such time period leads to extinguishing the remedy
of the aggrieved party.
This doctrine is an exception to the limitation period. According to this, if the aggrieved party
can furnish “sufficient cause” for causing a delay in institution of suit leading to the expiry of
the limitation period, the Court can, with discretionary jurisdiction disregard the delay or
“condone the delay” and proceed with the case.
Section 3
Section 3 of the act states that any suit instituted, appeal preferred, or application made after
the prescribed has been lapsed, the same shall be dismissed, although the limitation has not
been set up as a defence.
The period has been prescribed in Schedule 1 to the Act. Generally, it is as follows:
 3 years’ time-period for a suit relating to accounts, contracts, suits relating to movable
property, recovery of a lawsuit under a contract, etc.
 12 years’ time-period for suits relating to possession of the immovable property, and
30 years’ time-period for suits relating to the mortgaged property.
 One year for suit relating to torts (3 years for compensation in certain cases). 30 to 90
days in case of appeals under the Civil Procedure Code and Criminal Procedure Code.
The Doctrine of Condonation of Delay
Condonation of Delay finds its mention in Section 5 of the Act which elaborates upon
Extension of prescribed period in certain cases. According to it, any appeal or application may
be admitted after the prescribed period if the applicant/appellant is able to satisfy the Court that
they had “sufficient cause” for not instituting the appeal/application in the prescribed period.
Sufficient Cause
The term “sufficient cause” isn’t defined explicitly and varies on a case-to-case basis. The
Court has a wide discretion in determining what constitutes as sufficient cause, depending upon
the facts and circumstances of each case.
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In cases regarding non-appearance, adjournment or stay of execution of a decree, the cause
must be just and adequate i.e. “sufficient” otherwise these provisions will just be a way of
incessantly prolonging litigation. This principle has been advocated in furtherance of pursuance
of justice but it shouldn’t deny someone of justice either.
In the case of G. Ramagowda v. Special Land Acquisition Officer, it was held that “sufficient
cause” is to be interpreted liberally so as to pursue substantial justice.
Rule 3A
Rule 3A has been inserted by the Amendment Act of 1976. According to it, an application must
be filed in case an appeal is presented after the expiry of the prescribed period. The application
has to state sufficient cause for causing a delay in filing an appeal. This rule was recommended
by the Privy Council.
The Supreme Court, in the case of State of M.P v. Pradeep Kumar, observed two objects of
this rule:
 To inform the appellant filing a time-barred appeal that his action won’t be entertained
unless it is accompanied by an application substantiating sufficient cause.
 To communicate to the appellant that he may not have to be ready as the condonation
of delay is a condition precedent to hearing their appeal.
General Principles of the Condonation of delay
The Supreme Court, in the case of Collector Land Acquisition v. Mst. Katiji prescribed certain
principles which need to be followed while administering the doctrine of condonation of delay:
 Ordinarily, the litigant doesn’t stand to benefit by instituting an appeal late.
 If the Court is refusing to condone the delay, it can result in a meritorious matter being
discarded and the roots of justice being defeated. However, when a delay is condoned,
the highest that can happen is that the case will be decided on merits, i.e. a decision
based on evidence rather than on the technical and procedural ground.
 Every day’s delay must be explained” does not mean the doctrine is to be applied in an
irrational manner. It must be applied in a sensible manner and not a literal one.
 Between substantial justice and technical considerations, the former deserves to be
preferred for the other side cannot claim that injustice is done because of a bona fide
delay.
 There is no presumption that delay is caused deliberately. The litigant has nothing to
gain by resorting to delay and runs a serious risk.
Conclusion
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The Law of Limitation and Condonation of Delay are two effective tools for effective litigation
and quick disposal of cases. The Law of Limitation ensures that the case is filed within the
prescribed period so as to avoid unnecessary delays and is the epitome of the maxim,
Vigilantibus non dormentibus jura subvenitent. On the other hand, condonation of delay is the
safeguard to the law of limitation and bars certain cases in which the delay in filing the suit is
justifiable, i.e. can be backed by having “sufficient cause”.
Question
"Limitation bars the remedy, but not right". Explain with exceptions, if any
Answer
Introduction
Objective of the act
According to Halsbury’s Laws of England, the Main Objects of the Law of Limitations are as
follows:
1. Long dormant claim has more of cruelty than justice in them.
2. A defendant might have lost the evidence to dispute the State claim.
3. A person with only good cause of actions should pursue them with.
4. There are two major considerations on which the Doctrine of Limitation and
Prescription are based on – firstly, the rights which are not exercised for a long time are
said to be as non-existent and secondly, the rights which are related to property and
rights which are in general should not be in a state of constant uncertainty, doubt and
suspense.
Limitation bars the remedy, but right
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"Subject to the provisions contained in Sections 4 to 24 (inclusive), every suit instituted, appeal
preferred, and application made after the prescribed period shall be dismissed, although
limitation has not been set up as a defence.
The rule of limitation is a rule of procedure. It does not either create or extinguish a right. In
the words of Sir Richard Couch in Harrynath v. Mather: "The intention of the law of limitation
is not to give right where there is none nor to extinguish a right where there is one but to
interpose a bar after a certain period to a suit to enforce an existing right."
Limitation thus simply bars the judicial remedy, without extinguishing the right. For example,
where the recovery of a debt has become time barred by the lapse of prescribed time, the right
to the debt is not extinguished and if the debtor without being aware of the money due to him
on the ground that his claim for recovery of the debt had become time barred.
In Punjab National Bank and other v. Surendera Prasad Sinha, Section 3 of Limitation Act
bars the remedy but does not destroy the right to which the remedy relates to. Right to debt
continues to exist notwithstanding remedy is barred. Right can be exercised in any other
manner than by means of suit. It is settled law that the creditor would be entitled to adjust, from
payment of sum by debtor towards time barred debt. It is also equally settled law that creditor
when he is in possession of adequate security debt due could be adjusted from security in his
possession.
Law of Limitation is an absolute law and the parties cannot evade it by way of private
agreement. Thus under Section 28 of the Contract Act, an agreement which limits the time
within which any party thereto may enforce his rights by the usual legal proceedings in ordinary
tribunals is void. Similarly, an agreement between the parties that defendant will not plead the
law of limitation in a suit brought against him by the other is void.
However, there is one exception to rule that law of limitation bars the remedy but not the right.
This has been incorporated in Section 27 of the Act. The Section provides:
"At the determination of the period hereby limited to any person for instituting a suit for
possession of any property his right to such property shall be extinguished." In First National
Bank Ltd. v. Seth Santlal, AIR 1954 Punjab 328 It was observed : "Section 27 of the Limitation
Act is, however, an exception to the general rule that in personal actions, the Limitation Act
bars only the remedy and does not extinguish the right. In a suit for possession of any property
on the determination of the period of limitation not only the remedy but the right also, is
extinguished under Section 27. But a debt does not cease to be due, because it cannot be
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recovered after the expiration of the period of limitation provided for instituting a suit for its
recovery. After a debt becomes barred a person is still deemed to owe."
Question
What is the effect of legal disability on the period of limitation?
OR
What is legal disability? Discuss the provisions in the Limitation Act affording
protection under such disability
Answer
Introduction
The intention of the statute of limitations is to put an end to litigation in accordance with the
principle, interest reipublicae ut sit finis litium which states that it is in the interest of the state
to put an end to it. Legal Disability is defined under section 6 of the Limitation Act which states
that if the person seeing was disqualified at the time the cause of action arose, there will be no
time limit if the suit is filed within three years of the disqualification ending. Section 6 of the
aforementioned Act allows children or lunatics to file a suit or application for a longer period
of time.
Legal definition of disability
The absence of legal capacity to conduct an act due to a lack of competent physical and mental
abilities. The term “disability” usually refers to a person’s incapacity to exercise all of the legal
rights that only an average person would have.
 Section 6 states that when a person who is entitled to institute a suit or make an
application for the decree’s execution is a minor, insane, or idiot at that time then he
can file a suit or make an application after the end of disability as would have specified
under the third column of the schedule.
 When such a person is affected by both the disabilities and the person gets affected with
any other disability then he can file the suit or makes the application when both the
disabilities come to an end.
 When such disability lasts till the death of the person then his legal representatives can
file the suit or makes an application after the periods of death.
 Where the legal representatives get affected other than death then the above provisions
shall apply.
 When a person with an illness dies after the disability has ended but before the deadline
set by this section, his legal representative may file a lawsuit or file an application
within the same time limit as if the person had not died.
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 Under this section minor includes a child in the womb of the mother.
Kinds of Legal Disability
Minor: As per section 3 of the Indian Majority Act, 1875 a person becomes major when he
attains the age of eighteen years. For the welfare of the child, the court appoints the guardian
until he/she attains the age of majority. In some of the cases, 21 years of age is to be considered
as the age of majority.
Insane: It is explained in one of the cases named SK Yadav v State of Maharashtra [1] and the
Supreme Court, in this case, stated that there is no specific way to check the insanity of the
person. It can only be determined preceding, accompanying, and after the event’s behaviors.
Lunatic: A lunatic is a person who had an understanding but by accident or some other disease,
he lost the use of his senses. A lunatic is a person who is sometimes in his senses and sometimes
not.
Rules related to Legal Disability under the Limitation Act, 1963
The rules related to legal disability are enshrined under sections 3,6,7,8 and 9 of the Limitation
Act, 1963. Section 3 is the most crucial section which provides for the time period in which a
person can file a suit beyond the concept of limitation which stops the person from filing the
suits. Section 4-24 contains the exceptions in case of extraordinary situations.
There are three grounds available on which a person can file a suit beyond the periods of
limitation i.e. minor, insane, and lunatic. Section 8 relates to section 6(2) in which the concept
of multiple disabilities is discussed and this section 8 states that the time period of limitation is
3 years after the death of that very person or ceasing of his disability. Section 9 states that once
the period has begun, no further disability can reschedule its time period.
It is only a person “entitled to the suit” that can claim benefit of s. 6. A person who was not
entitled to sue or apply at the commencement of the limitation but becomes entitled to do so
later cannot get benefit of s. 6
Section 6 is applicable to the case where there is either one plaintiff or applicant and he is a
minor or an idiot or insane or where there are several plaintiffs or defendants and they all labour
under the disability or disabilities mentioned in s. 6. Where after the limitation has started
running against one person, another person becomes entitled to sue on the same cause of action,
s. 6 is not attracted and there is no fresh starting point of limitation and the disability of the
latter at the time when he becomes entitled to sue is no ground for extending the limitation
under s. 6.
Accrual of cause of action: Section 6 only applies when the disability is in existence at the
time when the limitation begins to run, but time is not saved where disability does not exist at
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the point on which limitation begins to run. This section requires that the plaintiff must have
been a minor when the cause of action first accrued, and the cause of action must have accrued
to the minor himself, otherwise he cannot claim any exemption under this section. Therefore,
if the cause of action accrued to the minor’s father, the minor son cannot, after his father’s
death, wait till he attains majority. Similarly, if the cause of action had accrued before his birth,
the minor cannot, on coming of age avail himself of the benefit of this section. The minor must
have been in existence at the time when the cause of action accrued.
Case Laws
1. Bapu Tatya Desai v Bala Raojee Desai: The purpose of section 7 of the Limitation
Act, according to this instance, is to control the alleged indulgence available to children
in order to ensure that the advantage of section 6 of the Limitation Act does not extend
to a proportionally large number of minors but only until the eldest of the group does
not become a major.
2. Smt. Usha Rani Banerjee & Ors. Vs. Premier Insurance Company Ltd, Madras & Ors:
Section 7 is an exception to the principle laid down under section 6. The court held that
if there are many individuals filing one suit and any one of them is disabled then time
will not go against them until the disease ceased to exist. However, if one of the parties
to the suit was competent to discharge the other without the consent of the other, time
would begin to run against both of them.
3. Lalchand Dhanalal v Dharamchand and Ors: According to section 9 of the Limitation
Act, a cause of action or grievance must arise when the plaintiff dies, and the period of
limitation is thus commenced, with no subsequent infirmity leading to a reset of the
clock. A plaintiff can only be entitled to compensation if he or she had such a right at
the time the statute of limitations commenced due to legal incapacity. Any later illness
on his part will not prohibit the limitation from running. As a result, he will be subject
to the same statute of limitations as the earlier limited owner, but if his claims are
unrelated to the earlier claimant’s plea, such a disability may be used to his advantage.
Conclusion
There are some situations under which a person can file a suit or move an application after the
expiration of limitation period and it also provides us the facility of filing a suit if a person dies
before the said date. It also provides a remedy if there is no legal representative. One of the
defensive mechanisms is used to keep an eye on the people so that they cannot misuse it.
Question
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State the essentials of valid acknowledgement.
OR
What is an acknowledgement of debt? What is its effect on limitation?
Answer
Section 18 of the limitation act covers acknowledgement of debt and thus the fresh start of the
limitation period. It is a tool which always plaintiff uses to say that his suit is within the
limitation period as there is an acknowledgement as per s.18 of limitation act and fresh
limitation is started.
Acknowledgment means a definite, clear admission of existing liability by the defendant. It is
a statement in writing that a debt is due and unpaid
An acknowledgment must be one from which an absolute promise to pay can be inferred, or
an unconditional promise to pay the specific debt, or that there must be a conditional promise
to pay the debt and evidence that the condition has been performed. An acknowledgement of
a conditioned liability will not give a fresh start so long as the condition remains unfulfilled.
An unqualified admission and an admission qualified by a condition which is fulfilled stand
precisely upon the same footing and both are within Sec. 18.
Sec. 18 is based on the principle that the bar of limitation should not be allowed to operate in
cases in which the existence of a claim is acknowledged by persons who are under the liability.
Every acknowledgment affords a new proof of the existence of debt. Sec. 18 do not enlarges
the period of limitation but a fresh period begins to run from the date of acknowledgment.
Essentials of an acknowledgement
As per Section 18 of the Limitation Act, 1963, following are the requirements for a valid
acknowledgement:
1. Acknowledgment must be made before the expiration of the period of limitation: In other
words the acknowledgment must be made after the period of limitation has begun to run and
while it is actually running. The expression “period prescribed” does not refer exclusively to
the period prescribed by the first schedule to the Limitation Act.
The expression will include any period prescribed by the Act, whether in the body of the Act
or in the first schedule. Thus, an acknowledgment may be made before the expiry of the period
of limitation as extended by the operation of section 14 of the Limitation Act
2. Acknowledgment of liability must be in writing: Hence an oral acknowledgment is not
sufficient. Similarly, a mere payment of a sum of money towards the debt is not sufficient
under the section although such payment may be intended as an acknowledgment of the debt.
3. Acknowledgment must be signed by the person making the acknowledgment or by his agent
duly authorised in this behalf: An acknowledgment not so signed will not be sufficient for the
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purpose of this section. Thus, a telegram cannot constitute a sufficient acknowledgment under
this section as telegrams are not signed by the parties sending them.
Signature of an agent acknowledging the debt will not do unless the agent is duly authorised to
make such an acknowledgment. A general authority is of no avail. A special authority to
acknowledge such debt is necessary.
4. Acknowledgment must be made by the party against whom any property or right is claimed,
or by some person through home he derives title or liability: It is sufficient under section 18, if
the acknowledgment has been made by a person against whom the right is claimed in the suit.
It is not necessary that at the time when the acknowledgment is made, such person must have
an interest in the property in respect of which the acknowledgment is given. An auction
purchase derives his title from the judgment debtor. Hence, if the judgment-debtor makes an
acknowledgment of liability in respect of a mortgage on property, the acknowledgment will be
binding on the auction purchaser.
5. Acknowledgment must be in respect of particular property or right claimed in the suit or
application: An acknowledgment of liability under this section must be in respect of the
particular property or right claimed in the suit. In other words, unless it is shown that the right,
acknowledged is identical with the right claimed in the suit, the section will not apply.
Thus, where the defendant owes several debts to the plaintiff and acknowledges his liability in
respect of a debt and as it is not possible to identify the debt acknowledged with the claimed in
the suit, the acknowledgment will be ineffective under the section.
An acknowledgment of a barred debt cannot give a fresh period of limitation in favour of a
creditor because one of the essential conditions of a valid acknowledgment is that the acknow-
ledgment must be made before the expiration of the period of limitation.
Effect of Payment of Debt or Interest
Effect of payment of debt or interest: As per Section 19 of the Limitation Act, 1963, where
payment on account of a debt or of interest on a legacy is made before the expiration of the
prescribed period by the person liable to pay the debt or legacy or by his agent duly authorized
in this behalf, a fresh period of limitation shall be computed from the time when the payment
was made. Thus, according to this Section afresh period of limitation becomes available to the
creditor when part-payment of debt is made by the debtor before the expiration of the period
of limitation.
Conclusion
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S. 18(1) of Limitation Act, 1963 provides that the fresh period of limitation shall be computed
from the time when the acknowledgment was so signed. In view of Section 12(1) of the
Limitation Act and Section 9(1) of General Clauses Act, 1897 it was held that the day on which
acknowledgment is made will have to be excluded in computing the period of limitation. In
case of a minor, where an acknowledgement is made in favor of a minor, then the fresh period
of limitation is to be computed from the date when the plaintiff attains majority.
Question
State the general rules for calculation of period of limitation for filing suit.
Answer
Introduction
General Rules
1. In computing the period of limitation for any suit, appeal or application, the day from
which such period is to be reckoned, shall be excluded.
2. In computing the period of limitation for an appeal or an application for leave to appeal
or for revision or for review of a judgment, the day on which the judgment complained
of was pronounced and the time requisite for obtaining a copy of the decree, sentence
or order appealed from or sought to be revised or reviewed shall be excluded.
3. Where a decree or order is appealed from or sought to be revised or reviewed, or where
an application is made for leave to appeal from a decree or order, the time requisite for
obtaining a copy of the judgment shall also be excluded.
4. In computing the period of limitation for an application to set aside an award, the time
requisite for obtaining a copy of the award shall be excluded.
5. In computing the period of limitation prescribed for any suit or appeal in any case where
an application for leave to sue or appeal as a pauper has been made and rejected, the
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time during which the applicant has been prosecuting in good faith his application for
such leave shall be excluded.
6. In computing the period of limitation for any suit the time during which the plaintiff
has been prosecuting with due diligence another civil proceeding, whether in a court of
first instance or of appeal or revision, against the defendant shall be excluded.
7. In computing the period of limitation of any suit or application for the execution of a
decree, the institution or execution of which has been stayed by injunction or order, the
time of the continuance of the injunction or order, the day on which it was issued or
made, and the day on which it was withdrawn, shall be excluded.
8. In computing the period of limitation for any suit of which notice has been given, or for
which the previous consent or sanction of the Government or any other authority is
required, in accordance with the requirements of any law for the time being in force,
the period of such notice or, as the case may be, the time required for obtaining such
consent or sanction shall be excluded.
9. In computing the period of limitation for a suit for possession by a purchaser at a sale
in execution of a decree, the time during which a proceeding to set aside the sale has
been prosecuted shall be excluded.
10. In computing the period of limitation for any suit the time during which the defendant
has been absent from India and from the territories outside India under the
administration of the Central Government, shall be excluded.
11. Where a person who would, if he were living, have a right to institute a suit or make an
application dies before the right accrues, or where a right to institute a suit or make an
application accrues only on the death of a person, the period of limitation shall be
computed from the time when there is a legal representative of the deceased capable of
instituting such suit or making such application.
12. Where after the institution of a suit, a new plaintiff or defendant is substituted or added,
the suit shall, as regards him, be deemed to have been instituted when he was so made
a party
13. In the case of a continuing breach of contract or in the case of a continuing tort, a fresh
period of limitation begins to run at every moment of the time during which the breach
or the tort, as the case may be, continues.
14. Explain effect of acknowledgement
15. Explain the fraud aspect.
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Question
Explain the effects of fraud or mistake in filing a suit by the parties to a dispute, under
the Limitation Act.
Answer
The word 'fraud' is not defined in the Limitation Act. Fraud means dishonesty or grave moral
culpability. It means deceit and does not include robbery. In order to constitute fraud there must
be some abuse of a confidential position, some intentional imposition or some deliberate
concealment of facts.
Two elements are essential:
First deceit or intention to deceive or, in some cases a mere secrecy; and
Second, either actual injury or an intention to expose some person to injury by means of deceit
or secrecy.
Section 17 treats mistake on par with fraud by providing that the limitation runs in the case of
mistake from the date when the mistake was discovered or with due diligence could have been
discovered. Mistake means an unconscious ignorance or forgetfulness of a fact, past or present,
material to the contract. Mistake means an unconscious ignorance or forgetfulness of a fact,
past or present, material to the contract. Mistake is not mere forgetfulness, it is a slip made, not
by design but, by mischance. It is a belief in the existence of a thing material to the contract
which does not exist; It is some intentional act, omission, or error arising from ignorance,
surprise, imposition, or misplaced confidence; In a legal sense, the doing of an act under a
conviction, which act, but for such conviction would not have been done.
The term mistake comprises within its scope a mistake of law as well as a mistake of fact. A
mistake of law occurs when a person having full knowledge of facts comes to an erroneous
conclusion as to their legal effect. A mistake of fact is a mistake which takes place when some
fact which really exists is unknown; or some fact is supposed to exist which really does not
exist. Mistake of foreign laws is a mistake of fact.
Fraud is actual and active fraud in the means adopted to keep the person injured out of the
knowledge of his right. Fraud is the fraud of the defendant; it does not mean the fraud of a third
person. If it is alleged that the fraud was committed by the servant or agent of the defendant, it
must be shown that it was committed for the general or specific benefit of the principal and not
for the private purposes of the servant or agent.
The section has no application where the fraud alleged by the party is a mere understatement
of the value of the properties in the sale proclamation. The period of limitation starts when the
plaintiff or the applicant discovers fraud or could with reasonable diligence have discovered
the fraud or mistake. When a person is aware of his right he cannot get the benefit under this
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section by alleging that he was prevented by fraud of the defendant to exercise such right. What
the Section is concerned itself with is the knowledge of the right and not the exercise of it.
Knowledge required is not mere suspicion. The knowledge must be clear and definite
knowledge of the facts constituting the particular fraud. It is for the plaintiff or the applicant to
prove the fraud or concealment.
Absence of averment of fraud is not material; what is to be proved is that fraud was actually
practised by the decree-holder. When the plaintiff or the applicant who alleges fraud or mistake
gives prima facie evidence of his case, it is for the defendants to show that the plaintiff or the
applicant had clear knowledge or could have known it with reasonable diligence at a time
beyond the period of limitation. In the case of concealed documents, the time runs from the
date when the plaintiff or the applicant first has the means of producing the document or
compelling its production. A bona fide purchaser who is unaware of any
fraud/mistake/concealed documents is protected and the benefit of Section 17 cannot be
extended to set aside a sale or any transaction affecting such property as against him.
The date of knowledge is to be excluded from computation of limitation period.
Fraud includes the fraud of an agent of the defendant.
In order to constitute fraud it is not enough that there should be merely a tortious act unknown
to the injured party but that there must be some abuse of confidential position, some intentional
imposition, or some deliberate concealment of facts; there must be something actually said or
done which is directly intended to prevent discovery.
Section 17 of the Limitation Act is attracted only where there is an active and designed fraud
and it had no application when the other party merely remains silent and does not do any act
which is designed to prevent knowledge of the cause of action.
Fraud like any other charge must be established beyond reasonable doubt. A finding as to fraud
cannot be based on suspicion or conjecture. Section 17 of the Limitation Act is an enabling
section which postpones the starting point of limitation for suit and application.
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SHORT ANSWERS
Question
Distinction between ‘Limitation’ and ‘Estoppel’.
Answer
Limitation & Estoppel are entirely different things. Though the operation of each is to prevent
a party from asserting his right at law. In the case of limitation by shutting out a suit & in the
case of estoppel by shutting out evidence.
Limitation is a rule of procedural law whereas estoppel is a rule of evidence. Limitation comes
into operation merely because of the passivity of the plaintiff is not asserting his rights
quickly enough. It is not necessary to avail defence of limitation that there should have been
any acts or representation done or made by other party.
Estoppel on the other hand arises by reason of some act, statement or omission intentionally
made by a party. Estoppel may apply to either party. A defendant may be estopped from
raising a particular defence, as much as a plaintiff. Limitation however generally applies to
plaintiff i.e it can be pleaded against plaintiff.
Question
Prescription
OR
Easement
Answer
Introduction
In the context of law, prescription refers to one type of naturalness – the right to use the property
of another. For this, the use of land for an appropriate statutory period has been open,
continuous, exclusive and under a claim of right. The word limitation only tells the meaning.
Its literal word limit means restrictions or rules or circumstances that are limited. The statute
of limitation has been set as the time limit that is given to the aggrieved person for various suits
through which the parties can approach the court for the redressal of justice.
Doctrine of prescription
A right is the right of an owner to own or occupy land which gives him the right of beneficial
enjoyment on the land of another person which he does not have. Such a right is given to the
owner of land so that he can fully enjoy his rights in his property. Therefore, a real estate has
certain rights which are associated with the enjoyment of another real estate without which the
property cannot be easily and fully held and enjoyed. For example, in the right way, sunlight,
water, sewage etc.
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Acquisition of easements by prescription
Prescription shows the effect of time constraints on creating some new rights and then
destroying the old rights. The term by prescription means that the acquisition of a title or a right
by the owner of the property in the manner prescribed by law. A person can acquire property
or certain rights over a property to show that he is in possession of the property or has been
enjoying the rights for a long time.
Therefore, if there is a need to prove its title after prolonged, uninterrupted and continuous
occupation or to exercise certain rights over real estate it will cause hardship and will cause
injustice. The law, therefore, recognizes an easement by prescription.
The principle described in the prescription doctrine is that to give legal recognition to rights
and the titles that have been long enjoyed. Even if the enjoyment of that such right or the title
was wrong at the time of its establishment, the law uses to consider it expedient to not to disturb
such kind of enjoyment. The law recognizes this right to prove that the origin of the title will
cause unnecessary hardship to a person.
Essentials of easement by prescription
1. Peaceably enjoyed: The Indulgence should be without any violence and that should not
be subjected to the frequent quarrels or physical or any legal obstruction by the owner.
No relaxation by the prescription can accrue under a non-peaceful enjoyment.
2. Openly enjoyed: The need for open enjoyment means that the dominant owner must
either have actual knowledge of the practice of accessibility by the dominant master or
possess the means of knowledge for which creative knowledge can be attributed to him.
3. As of Right: This expression means that the enjoyment of spontaneity should be without
violence, without theft, and also without permission. This implies that rest should be
enjoyed as a right.
4. Without interruption: Relaxation should be enjoyed without any hindrance which may
have been caused by some kind of hindrance due to the function of the servant owner.
As a result of such interruptions, the pleasure of easement must be effective. The
principal owner must have notice of the obstruction and fact of that person in making
or authorizing such an obstruction. It is not necessary that some oral or any written
notice must be given by the servant owner to the principal owner.
5. For twenty years: An uninterrupted period of 20 years of only would establish an
easement by prescription. The period of 20 years is extended to thirty years if the
government gets the benefit of service.
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Question
Adverse Possession
Answer
Under the doctrine of adverse possession, a person who is not holding the title to the land but
holding the possession of the land owned by someone else for a considerable period may
acquire a valid title to it, provided that the adverse owner is in possession for a sufficient period
as per the Limitations Act. In India, any person in possession of a property for a period of more
than 12 continuous years may claim unfavourable possession of the property.
Elements establishing adverse possession
1. Continuity in adverse possession: The Possession and occupancy of the property by the
trespasser/claimant shall be continuous, uninterrupted and unbroken for the entire
statutory limitation duration.
2. Hostile possession: Possession must be aggressive, often referred to as adverse, if the
title is to mature from adverse possession. Hostile Possession means that the Claimant/
occupier is occupying the land despite knowing that he/she doesn’t hold any legal title
to occupy or possess the said property. Possession must be aggressive, often referred to
as adverse, if the title is to mature from adverse possession. Hostile Possession means
that the Claimant/ occupier is occupying the land despite knowing that he/she doesn’t
hold any legal title to occupy or possess the said property. There will be no conflict or
conflict about the title as long as the claimant continues to claim the land and hold it
against the interests of the owner and the world as a whole. Possession must be
aggressive from the start and must continue throughout the limitation period. One form
of hostile occupation arises when the claimant enters and stays on the land under the
colour of the title. The colour of the title is the appearance of the title as a result of an
act which appears, by its language, to give the applicant a valid title, but does not, in
fact, appear to be defective. Unless, for example, a person has a legitimate disability at
the time of the execution of an act, the grantee-claimer would not obtain the actual title.
However, the grantee-claimer has the colour of the title because it would appear to
anyone reading the document that the good title had been conveyed. If for the full
statutory period, the claimant owns the land in the manner specified by statute, his or
her colour of the title shall become the real title as a result of adverse possession.
3. Actual possession: Actual possession: an adverse possession must be actual possession,
such as the construction of a house, the erection of a shed or some structure, the fencing
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of a property, the grazing of cattle on the land, the farming and harvesting of crops on
the land, the planting and cutting of trees, etc. for the whole statutory limitation period.
4. Exclusive possession: During the statutory limitation period, the claimant must be in
the sole physical possession of the property against the legitimate right, assertion, and
title of the rightful owner or other claimants. Land development, the building of a house,
or the erection of boundary walls are examples of “exclusive ownership.” It must not
be taken possession of or pseudo-possession.
Acts that do not constitute adverse possession
1. Permissive possession: It cannot be converted into an adverse possession, particularly
where possession is lawful from the outset unless other transparent actions have been
committed by the occupant that will have the effect of denying the title of the true
owner. The permissive character of possession can be inferred from the circumstances
of the case, even without clear evidence. As soon as the plaintiff shows his intention
that the permissive possession would cease, the permissive possessor would cease to
enter the property and, if he does not do so, his continued presence would be incorrect
and would make him liable to surrender possessions along with mesne profits.
2. Absence of rightful claim: “In the case of Palaniyandi Malavarayan v. Dadamalali
Vidayan, it was contended before Honorable Andhra Pradesh High Court about adverse
possession by a trust that the right to the trusteeship of a temple cannot be acquired by
adverse possession so long as there is no lawful trustee who could claim to recover the
office from the person who claims to hold it adversely to him” [3].
3. Absence of sufficient animus or intention: It is the intention to claim the exclusive title
which makes possession adverse. Animus possidendi must be proved along with the
manner of occupancy by the squatter which again varies from type to type. It is a well-
known principle in the fiduciary relationship that the possession of the agent is the
possession of the principle and therefore the existing relationship between the parties
cannot be permitted to be as adverse.
Question
State the period of limitation and when does the time begin to run in any two of the
following
1) A suit for arrears of rent.
2) Suit by a mortgage for foreclosure.
3) Application for execution of decree.
Answer
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1) A suit for arrears of rent: Article 52: The period of limitation for a suit for arrears
of rent is three years and the time of limit is the date when the arrears become due.
2) Suit by a mortgage for foreclosure: Article 63(a): The period of limitation for a suit
by a mortgage for foreclosure is thirty years and the time of limit is when the money
secured by the mortgage becomes due.
3) Application for execution of decree: Article 63(a): The period of limitation for an
application for execution of decree is twelve years and the time of limit is when the
decree or order becomes enforceable or where the decree or any subsequent order
directs any payment of money or the delivery of any property to be made at a certain
date or at recurring periods, when default in making the payment or delivery in
respect of which execution is sought, takes place.
Question
1. Objects of law of limitation
2. Effects of fraud on the period of limitation.
3. Condonation of delay.
4. Legal disability under limitation act.
Answer
From long answers
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ILLUSTRATION ANSWERS
1. Shankar was the trustee of a trust. After Shankar’s death, Anil wrongfully takes the
possession of the trust property. Rohan the son of Shankar files a suit for recovery
of possession of the property against Anil as a legal heir and in his individual
capacity. But Rohan did not succeed. Then Rohan files another suit for recovery of
trust property against Anil in the capacity of a trustee, as he is appointed as a
trustee after the death of Shankar. Can Rohan succeed in this case?
Rohan will succeed in this case as the doctrine of resjudicata will not be applicable. Here
in both the suits, the title of the Rohan is not the same. In the former suit, he is suing under
personal capacity while in the later suit, he is suing in the capacity of a trustee.
Same title means same capacity. Title refers to the capacity or interest of a party, that is to
say, whether he sues or is sued for himself in his own interest or for himself as representing
the interest of another or as representing the interest of others along with himself and it has
nothing to do with the particular cause of action on which he sues or is sued. Litigating
under the same title means that the demand should be of the same quality in the second suit
as was in the first suit. It has nothing to do with the cause of action on which he sues or is
sued.
2. A textile manufacturing company having its Head Office at Bangalore, had branch
offices at Hubli, Mysore and Mangalore. A dispute cropped up between Mr. Babu
and Prakash Transport Company in respect of transaction through Hubli office.
Mr. Babu files a suit in respect of the dispute against the company in the court of
Mangalore. Is the court of Mangalore is competent to decide the case? Give reason.
U/S 20, every suit shall be instituted in a Court within the local limits of whose jurisdiction
the defendant, at the time of the commencement of the suit, actually and voluntarily resides,
or carries on business, or personally works for gain. A corporation shall be deemed to carry
on business at its sole or principal office in India or, in respect of any cause of action arising
at any place where it has also a subordinate office, at such place.
Hence the suit has to be instituted at Bangalore.
3. Charan wants to file a case against Rahul. As the court was closed due to the holiday
and that being a last day of the limitation. Mr. Charan seeks extension of limitation
period on that ground, will be succeed?
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U/S 4 of the limitation act, where the prescribed period for any suit, appeal or application
expires on a day when the court is closed, the suit, appeal or application may be instituted,
preferred or made on the day when the court reopens.
Hence, he can succeed.
4. Ramesh is a permanent resident of Belagavi and Ashok is a permanent resident of
Dharwad. Ramesh has taken a loan from Ashok at Belagavi. He has not repaid the
loan till today. Ashok has instituted a suit for the recovery of the said loan, against
Ramesh at Dharwad. Ramesh has raised objection as to the jurisdiction. Decide.
U/S 20, the plaintiff may sue the defendant either where the cause of action actually arose
or where defendant carries on her business. In the above illustration, both cause of action
as well as the place of defendant resides is Belagavi. Hence Ashok cannot institute a suit
for recovery of the said loan at Dharwad.
5. Mahesh had sued Anirudh for defamation. The suit was decided in favour of
Mahesh. Anirudh has preferred an appeal against the judgement of trial court.
Mahesh died during the pendency of appeal. LRs of Mahesh have applied for being
impleaded as respondents. Decide.
The general rule is that all rights of action and all demands whatsoever, existing in favour
of or against a person at the time of his death, survive to or against his representatives. But
in cases of personal actions, i.e. actions where the relief sought is personal to the deceased
or the rights intimately connected with the individuality of the deceased, the right to sue
will not survive to or against his representatives. In these cases a personal action dies with
the person) applies. This principle is found and Section 306 of the Indian Succession Act.
6. Ketan is a tenant in the house of Sameer for last 30 years. Sameer is now in need of
the house for his own occupation. He has filed a petition for eviction against Ketan.
Ketan contends that he has become owner by adverse possession. Decide.
Yes. Explain what is adverse possession with its essentials.
7. 'A' residing in Delhi publishes in Calcutta statements of defamatory to B. The
newspaper is circulated in Bombay, Madras and Raipur. B wants to file a suit
against A. Where he can sue? Advise hm.
U/S 19 of the act, a suit for wrong to moveable property may be brought at the option of
the plaintiff, either at the place where wrong is committed or where the defendant resides
carries on business or personally work for gain.
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Thus, A, residing in Delhi, publishes in Calcutta statements defamatory to B. The
newspaper is circulated in Bombay, Madras and Raipur. B may sue A either in Calcutta, or
in Delhi, or in Bombay, or in Madras, or in Raipur.
8. 'A' enters into an agreement jointly with B and C to sell 100 tins of oil. A thereafter
refuses to deliver the goods. 'B' and 'C' together want to file a suit for damages
against 'A'. Can they do so? Advise them.
A enters into an agreement jointly with B and C to sell 100 tins of oil. A thereafter refuses
to deliver the goods. Here both, B and C, have each of them a right to recover damages
from A. The said right arises out of the same transaction, namely, the breach of agreement;
and common questions of law and fact would also arise. B and C, therefore, may file a suit
jointly as plaintiffs against A for damages.
9. Subhash is a permanent resident of Ballary and Anand is a permanent resident of
Kolar. Subhash has made an agreement with Anand at Ballary for supply of certain
quantity of paper every month. The parties to the agreement have agreed that if any
dispute arises between them, the same shall be subject to the jurisdiction of Civil
Court at Tumkur. Decide the validity of the agreement.
In plethora of judgements such as Hakam Singh v. Gammon (India) Ltd, it has been held
that an agreement to our absolutely the jurisdiction of a competent court is void, being
against public. But when two or more courts have jurisdiction to entertain a suit, an
agreement by the parties to submit to the jurisdiction of one of such courts to the exclusion
of the rest is valid, binding and enforceable.
10. Ramesh has taken a loan of Rs. 50,000 from Ashok on 20-10-2010. He has not repaid
the loan till today. Ashok has instituted a suit against Ramesh for the recovery of the
said loan, on 15-9-2015. Ramesh has not raised any objection regarding limitation,
in his written statement. Can the Court hear and decide the suit?
New facts, such as the suit is not maintainable, or that the transaction is either void or
voidable in law, and all such grounds of defence such as fraud, limitation, release, payment,
performance or facts showing illegality, etc. must be raised. If he does not do that, the Court
will deal with it in one of two ways. It may say that it is not open to him, that he has not
raised it and will not be allowed to rely on it; or it may give leave to amend by raising it
and protect the other party.
11. The Govt. of Malenadu issues an order banning sale of liquor in the state in order to
protect public health. 'X' challenges the validity of the said order before the High
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Court on the ground that it violates freedom of business under Art. 19(1)(g). The
High Court dismisses the petition. Aggrieved by the said order 'X' files a fresh writ
petition before the Supreme Court of India. Whether 'X' can succeed in the case?
12. 'A' files a suit against 'B' requesting the court to declare him as an owner of a
property 'C'. The court dismisses the suit. 'A' files an appeal before appellate court.
During the pendency of appeal, 'A' files a fresh suit against 'B' before the lower
court requesting the court to issue decree for 'Mesne profit'. State whether second
suit is maintainable.
13. 'A' enters into a contract with 'B' for supply of certain goods. The said contract was
entered into in Bengaluru and 'B' was required to dispatch the goods to Bengaluru.
'B' fails to supply goods. 'A' files a suit against 'B' in Bengaluru city civil court. 'B'
challenges the jurisdiction of the court on the ground that suit has to be filed where
the defendant has the place of business, Suggest 'B'.
or where defendant carries on her business. In the above illustration, cause of action arose
at Bangalore. Hence A can institute the suit at Bangalore.
14. Anil has instituted a suit against Suresh for the recovery of a loan alleged to be
advanced by him to Suresh. Suresh has appeared in the suit, but has not presented
his written statement. A contends that not presenting written statement amounts to
implied admission of all facts in the plaint. Decide.
Under O8.R10, if the defendant fails to present his written statement within the time
permitted or fixed by the court, the court will pronounce the judgment against him or pass
such order in relation to the suit as it thinks fit and a decree will be drawn up according to
the said judgment. The court, however, cannot proceed to pass a judgment blindly merely
because no written statement is filed by the defendant traversing the averment made by the
plaintiff in his plaint. The same was upheld by the apex court in the case of Balraj Taneja
v. Sunil Madan.
15. Ramesh has instituted a suit against Keshav for recovery of loan. While instituting
the suit he claimed only the principal amount, omitting the interest by over sight.
Now he wants to claim the interest. Advise him.
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Where the plaintiff is entitled to more than one relief in respect of the same cause of action,
it is open to him to claim all or any of such reliefs. But if he omits, except with the leave of
the court, to sue for any particular relief, he will not afterwards be allowed to sue for the
relief so omitted.
16. Santosh has taken a loan of Rs. 50,000 from City Bank on 10-5-2013. He had a fixed
deposit of Rs. 75,000 in the same branch of City Bank, which matured on 16-10-
2017. The Bank deposited the proceeds of the fixed deposit in the SB account of
Santosh, after deducting the loan amount and interest thereon. Santosh wants to
recover the amount so adjusted by the Bank. Advise him.
17. At the time when the cause of action arose, Mr. X was full of age and sound mind.
But the fact that he shortly afterwards becomes insane. Can this fact affect the
running of time of limitation. Decide.
U/S 6(1) of the limitation act, Where a person entitled to institute a suit or make an
application for the execution of a decree is, at the time from which the prescribed period
is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the
application within the same period after the disability has ceased, as would otherwise have
been allowed from the time specified therefor in the third column of the Schedule.
18. 'A' filed suit for partition against his brothers B and C. The court has passed the
preliminary decree and final decree in the matter. Being aggrieved by the decree of
the court 'A' preferred appeal against final decree and raised question about
correctness of the preliminary decree. Whether appeal maintainable?
Wherever misrepresentation, fraud, breach of trust, wilful default or undue influence are
pleaded in the pleadings, particulars with dates and items should be stated. New facts, such
as the suit is not maintainable, or that the transaction is either void or voidable in law, and
all such grounds of defence as, if not raised, would take the plaintiff by surprise, or would
raise issues of fact not arising out of the plaint, such as fraud, limitation, release, payment,
performance or facts showing illegality, etc. must be raised.
19. Ramesh has borrowed some money from Dinesh and failed to repay it. Dinesh wants
to file suit against Ramesh for recovery of money advanced. The last day of
limitation was Sunday. Therefore, he filed suit on immediate next Monday and
claims for extension of limitation as the last day of limitation was Sunday being
holiday to the court. Can he succeed?
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U/S 4 of the limitation act, where the prescribed period for any suit, appeal or application
expires on a day when the court is closed, the suit, appeal or application may be instituted,
preferred or made on the day when the court reopens.
Hence, he can succeed.
20. The suit filed by 'X' is posted for cross examination of the plaintiff. Defendant files
application for adjournment on the ground that his counsel is suffering from illness.
Rejecting the application, court directs him (defendant) to change the counsel and
proceed with cross examination. Whether order of the court is sustainable?
An adjournment may be granted by a court inter alia on the grounds of sickness of a party,
his witness or his advocate. However, grant or refuse adjournment is at the discretion of
the court. The power to grant adjournment is not subject to any definite rules, but it should
be exercised judicially and reasonably and after considering the facts and circumstances of
each case.
21. Sunil is a permanent resident of Davanagere and Prakash is a permanent resident of
Shivamogga. Sunil has taken a loan from Prakash at Davanagere. He has not repaid
the loan till today. Prakash has instituted a suit for the recovery of the said loan,
against Sunil at Shivamogga Sunil has raised objection as to the jurisdiction. Decide
or where defendant carries on her business. In the above illustration, both cause of action
as well as the place of defendant resides is Davanagere. Hence Ashok cannot institute a suit
for recovery of the said loan at Shivamogga.
22. 'A' sues 'B' in a foreign court. The suit is dismissed. Thereafter 'A wants to file the
same suit against 'B' in India on the same cause of action. Whether he can institute a
suit? Decide.
A foreign judgment is conclusive as to any matter adjudicated upon by a competent foreign
court. Section 13 of the Code in essence enacts a rule of res judicata in relation to foreign
judgments. Hence, if a foreign judgment is delivered by a court having jurisdiction in the
matter, it would operate as res judicata.
23. Right to sue arises to P during his minority. P dies one day after attaining majority.
He is succeeded by his son 'K' who is a minor Determine the effect on the period of
limitation.
U/S 6(1) of the limitation act, where a person entitled to institute a suit or make an
application for the execution of a decree is, at the time from which the prescribed period is
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to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the
application within the same period after the disability has ceased, as would otherwise have
been allowed from the time specified therefor in the third column of the Schedule.
A right to sue accrues to P during his minority. P dies before attaining majority, and is
succeeded by K, his minor son. Time runs against K from the date of his attaining majority.
24. Ramesh has instituted a suit against Santosh, seeking possession of a house on the
ground that he has purchased the same from Santosh. Now he wants to amend the
plaint to the effect that he is entitled to the possession of the house as a tenant. Can
he succeed?
OR
25. Rama filed a suit against Krishna for declaration of ownership on the property
stating that he has purchases under a registered sale deed. Subsequently he seeks to
amend the plaint claiming that the property was granted to him by the government.
Can he succeed? Discuss.
Explain when amendment can be allowed.
No, he cannot amend as it introduced a totally new and inconsistent case.
26. Rajesh has instituted a suit against Shekhar for recovery of Rs. 1 lakh, in the Court
of Senior Civil Judge. The suit is tried by the court and at the stage of arguments
Shekhar contends that the court has no jurisdiction to decide the case. Decide.
Objections has to be raised at the earliest possible stage.
27. In a suit the defendant refused to accept the summons which was issued to him. The
process server left the summons on a table in the defendant's house. Is the service
valid?
Yes, since he refused to accept the summons, it shall be deemed to have been accepted.
28. Rajan has instituted a suit against his wife Rajani in the Civil Court at Dharwad.
Rajani is residing at Tumakuru with her parents. She has no income of her own and
therefore, she is finding it difficult to travel to Dharwad frequently to attend the
proceedings. Advise her.
29. Ramesh has published books under the banner "Oxford and Cambridge University
Press Oxford University and Cambridge University have instituted a joint suit
against Ramesh. Is the joinder of plaintiffs valid?
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Yes, here both the parties have each of them a right to recover damages from Oxford and
Cambridge University Press. The said right arises out of the same transaction, namely the
publication of the book; and common questions of law and fact would also arise. They may
therefore, may file a suit jointly as plaintiffs against Oxford and Cambridge University
Press for damages.
30. Gopal has taken a loan from Rajeev on 10-2-2014. He has given a written
acknowledgement of loan to Rajeev on 15-4-2017: Rajeev has instituted a suit for
recovery of the loan against Gopal on 10-8-2017. Is the suit within limitation?
31. A suit was institutes by the plaintiff firm alleging infringement by the defendant
company for using the trade name on their product with the same combination as
that of plaintiff firm. A subsequent suit was institutes in a different court by the
defendant company stating the same allegation. Advice the plaintiff firm with the
step to be taken in accordance with law.
Res-subjudice.
32. Mr. Santosh seeks condonation of delay for not preferring an appeal within the
period of limitation because of engrossing in his marriage. Is it condonable?
33. ‘A’s wife refused to return to her husband and allow him the exercise of conjugal
rights. What is the period of limitation for ‘A’? Decide.
34. Chetan has taken a loan from Ganesh. He has given an acknowledgment to Ganesh
before the expiry of limitation stating that, "I owe you Rs. 50,000. But I refuse to
pay the same." Examine the validity of the acknowledgement.
OR
35. X takes the debt front under oral terms X gives a written acknowledgement atter the
expiry of two years and pleads sorry for non-paying the debt Determine the validity
of acknowledgement
OR
36. X takes the debt from Y under oral terms. X gives a written acknowledgment, after
the expiry of two years. Then he pleads sorry for not paying the debt yet. Determine
the validity of acknowledgment.
OR
37. “I admit the loan, but I have since repaid the amount.” Whether it is sufficient
acknowledgement. Decide?
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Explain acknowledgement.
Page 170 of 170

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CODE OF CIVIL PROCEDURE

Question (Answers from Long Questions)

Objections as to non-joinder or misjoinder of parties: Rule 13

Remedies against ex-parte degree

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