civil procedure code,1908

8 The Code of Civil Procedure, 1908 (C.P.C.)

Introduction

Law may be classified as

1. Substantive law; and

2. Adjective or procedural law

Substantive law determines the rights and liabilities of the parties, confers legal status, imposes and defines the nature and extent of legal duties.

MEMORY TIP

Substantive law is the end. Procedural law is a means to achieve the ends of justice.

Procedural law, on the other hand, prescribes the practice, procedure and machinery for determining, enforcement or recognition of the legal rights and liabilities by a court of law.

Procedural laws are subordinate to the substantive laws.

Code of Civil Procedure, is a branch of procedural law dealing with civil matters. It lays down the procedure to be followed in civil courts in deciding the cases. In this chapter we will examine the legal terms such as decree, order, judgement, appeal, reference, review, revision, resjudicata, res subjudice and also the hierarchy of civil courts, their jurisdiction and matters incidental thereto.

Objectives

By the end of this chapter, you should be able to understand–

• The meaning, aim, scope and scheme of the Civil Procedure Code.

• Definitions of some important terms as given in the Code.

• The structure and jurisdiction of Civil Courts

• The ‘Doctrines of Res Sub Judice’ and the ‘Doctrine of Res Judicata’[section 10 and 11]

• the idea of place of suing [Section 15 to 20]

• The concepts of Set-off, Equitable set-off and Counter Claim.

• The reliefs available under the Code such as temporary injunction, interlocutory orders.

• The procedure of a law suit with particular reference to

• Institution of suit

• Misjoinder of parties, cause of action, misjoinder of cause of action

1

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2 General and Commercial Laws

• Important stages in proceeding of a suit

• Judgement, Decree, Execution and appeals

• Reference, review and revision and

• the Summary Procedure

Meaning, Scope and Applicability

“Civil Procedure” means, body of law concerned with the methods, procedures and practices used in civil litigation. – Black’s Law Dictionary.

The words, ‘civil’ and ‘procedure’ are words of classification. The word, ‘civil law’ would denote the whole law of the State governing the relations among its citizens inter se or between the State and its subjects. ‘Law of procedure’ may thus be defined as that branch of law which governs the process of litigation.

The Code of Civil Procedure was first codified in 1859. An earnest attempt to consolidate the laws relating to civil procedure resulted in the legislation of the ‘Code of 1859’. The subsequent Code of 1908 aimed at consolidating and amending the laws relating to the procedure of the Courts of Civil judicature. Since then it has been amended from time to time without affecting the basic features of the Code. The objects behind such amendments were to ensure more expeditious disposal of civil suits and proceedings consistent with the accepted principles of natural justice and to simplify the procedure to a certain extent.

The Civil Procedure Code, 1908 is aimed at consolidating and amending the laws relating to the procedures of the courts of civil judicature. To consolidate means, to collate all the laws relating to a particular subject under one Code and make it up-to-date, so that it can be applied to the circumstances. The Code does not affect any special or local laws which prescribe any special form of procedure.

Applicability

The Code of Civil Procedure, 1908 applies to all proceedings in a civil court. The ‘Code’ is concerned almost wholly from the very institution of a suit in a civil court, the progress of its trial, ending with orders or a decree and its further stages, such as appeal, reference, review, revision till the execution of such decree / order.

Scheme of the Code

The Code of Civil Procedure, 1908 is effectively divided into two parts:

(a) Part I - Body containing the principles spread in 158 Sections; and

(b) Part II - Schedule I containing 51 Orders along with the Rules framed there under.

The Sections lay down the general principles of jurisdiction. The Orders and the Rules framed there under prescribe the method, manner and mode in which such jurisdiction is to be exercised.

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Chapter 8: The Code of Civil Procedure, 1908 (C.P.C.) 3

Both the sections and the rules must be read together, construed harmoniously and give an interpreta- tion towards the achievement of ultimate objective of the ‘Code’ to do justice. Whenever there is an inconsistency felt in between the two, sections supersede and prevail.

Sections can be amended only by the legislature, whereas the High Courts have the power to frame and amend the Rules as and when necessary. The amendments made by the High Courts to the Rules become part of the Code for all purposes, as if enacted in the Code.

CIVIL PROCEDURE CODE = CIVIL

The Code of Civil Procedure, 1908 is divided into two parts:

PART - I – SUBSTANTIVE LAW 158 SECTIONS

PART - II- PROCEDURAL LAW - 51 ORDERS ALONG WITH THE

Some Important Definitions

Decree A decree is the ruling of the court regarding the claims of the parties of the suit. For example, in a suit between A and B, A may claim that a particular property P belongs him. After hearing all the arguments, the court will rule in the favour of either A or B. The final decision of the court regarding this claim i.e. whether the property belongs to A or B is a decree.

As per Section 2(2), a decree is the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit. It may be final or preliminary.

A decree is preliminary when further proceedings have to be taken up before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit.

The following are the essential elements of a decree –

1. There must be a suit.

2. There must be adjudication.

3. There must exist substantive Rights of the parties.

4. There must be a Conclusive Determination of the Rights

5. The court must make a Formal expression in the manner provided by law for it to be a decree.

The term decree does not include the following –

• Any adjudication from which an appeal lies as an appeal from an order.

• Any order or decision of the dismissal of the suit for default.

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Order

As per Section 2 (14), the formal expression of any decision of a civil court which is not a Decree is Order. In a suit, a court may take certain decisions on objective considerations and those decisions must contain a discussion of the matters at issue in the suit and the reasons which led the court to pass the order. However, if those decisions fall short of a decree, they are orders.

Thus, there are several common elements between an order and a decree - both related to matter in controversy, both are decisions given by the court, both are adjudications, both are formal expres- sions. However, there are substantial differences between them –

Decree - S. 2(2) Order S. 2(14) Can only be passed in a suit originated by the presentation of a plaint.

Can be passed in a suit originated by the presentation of a plaint, application, or petition.

Contains Conclusive Determination of a right May or may not finally determine a right. May be final, preliminary, or partly preliminary - partly final.

Cannot be a preliminary order.

In general, there can only be one decree or at the most one preliminary and one final decree in a suit.

There can be any number of orders in a suit.

Every decree is appealable unless an appeal is expressly barred.

Only those orders which as specified are appealable in the code are appealable.

A second appeal may lie against a decree to a High Court on certain grounds

There is no second appeal for orders.

Judgement: Section 2(9): Statement given by a judge on the grounds of a decree or order. The judgement should have

• Facts in brief

• Issues for determination

• Decision on the issues and

• Reasons for the decision.

Note: judgement of a small causes court need not have the above details.

Judgement, decree and order look synonymous. But they are not so.

Decree holder Section 2(3): A person in whose favour a decree has been passed or an order capable of execution has been passed.

Judgement debtor: Section 2(10): Any person against whom a decree has been passed or an order capable of execution has been made.

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DECREE ORDER JUDGEMENT

The formal expression of an adjudication which Conclusive Determine the right.

The formal expression of any decision of a civil court which is not a Decree

Statement given by a judge on the grounds of a decree or order.

Structure of Civil Courts

Section 3 of the civil procedure code lays down the structure of the codes in below manner –

• High courts

• District courts

• Civil courts

The High Court stands at the head of the state’s judicial administration. Each state is divided into judicial districts presided over by a district judge, who is the highest judicial authority in a district. Below him, there are courts of civil jurisdiction, known in different states as munsifs, sub-judges, civil judges and the like.

As compared to this, criminal judiciary comprises of sessions and assistant sessions judge, chief judicial magistrate and judicial magistrates of first and second class. In cities there are metropolitan and chief metropolitan magistrates.

Jurisdiction of Courts and Venue of Suits

Jurisdiction may be defined to be the power or authority of a court to hear and determine a matter brought before it for adjudication and exercise any judicial power in relation to it. The limit of the authority is imposed by the statute.

If the court has no jurisdiction, consent of parties cannot confer that jurisdiction. But if two or more courts have jurisdiction to try the suit, it is open to the parties to select a particular court and exclude other courts.

Kinds of Jurisdiction

A limitation on the jurisdiction of a civil court may be of four kinds. These are as follows–

(i) Territorial Jurisdiction – A territorial limit of jurisdiction is fixed by the Government. For e.g. the district judge has to exercise jurisdiction within his district and not outside it. The High Court has jurisdiction over the territory of a state within which it is situate and not beyond it.

(ii) Pecuniary Jurisdiction – Section 6 of the Code provides that a court will have jurisdiction only over those suits the value or amount of the subject matter of which does not exceed

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the pecuniary limits of its jurisdiction. Some courts have unlimited pecuniary jurisdiction e.g. High Courts and District Courts have no pecuniary liitations. But there are other courts having jurisdiction to try suits upto a particular amount.

(iii) Jurisdiction as to subject matter – The jurisdiction to decide certain matters by certain court is limited by the statute; e.g. a small cause court cannot try suits for specific performance of a contract, redemption of mortgage etc. Similarly in respect of divorce cases, only District or subordinate court judge has the jurisdiction.

(iv) Original and Appellate Jurisdiction – In the exercise of original jurisdiction, a court entertains and decides suits and in its appellate jurisdiction, it entertains and decides appeals. Munsif Courts, Courts of Civil judges and Small Cause Courts possess original jurisdiction only; while District Courts and High Courts have original as well as appellate jurisdiction.

Suits of Civil Nature [Section 9]

As per Section 9 of the code, a civil court has jurisdiction to try a suit if two conditions are fulfilled:

— The suit must be of civil nature

— The cognizance of such a suit should not have been expressly or impliedly barred.

The explanation appended to the section provides that a suit in which the right to property or to an office is contested is of civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.

A suit is expressly barred if legislation expressly says so and is impliedly barred if a statute creates new right or liability and prescribes a particular tribunal for its assertion. When a right is created by a statute and a special tribunal is provided for its enforcement, the ordinary Civil Court would have no jurisdiction to entertain such disputes.

Doctrine of Res Sub Judice – Stay of Suit [Section 10]

The doctrine of Res-subjudice is contained in section 10 of C.P.C 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.

Res-subjudice Meaning – Res-subjudice technically means that a matter in issue, which is already under the judicial scrutiny, then other proceeding of trial in-respect of same matter in issue shall not be allowed. However, the pendency of a suit in a foreign court does not preclude the Courts in India from trying a suit founded on same cause of action.

Essential Conditions of Res-subjudice For applicability of Res-subjudice the following conditions must be present:

1. The matter in issue and in subsequent suit must be the same, which is directly and substantially in

issue in previously instituted suit.

2. The previously instituted suit must be pending in the same Court or in any other Court

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3. The previously instituted suit must be pending in a competent Court of civil jurisdiction.

4. The parties in both the suits must be the same.

If these conditions are fulfilled, the later suit shall be stayed till the disposal of earlier suit, the findings of which operate as res judicata on the later suit. The principles of resjudicata are given in section 11.

Object of Res-subjudice The object of Res-subjudice is to prevent Courts of concurrent jurisdiction from trying two parallel suits, in respect of the same matter simultaneously. The purpose is also to avoid conflict of decision. It merely says that the trial cannot be proceeded with.

Doctrine of Res Judicata [Section 11] Res judicata is the Latin term for “a matter already judged”, and refers to the legal doctrine meant to bar continued litigation of cases that have already been decided between the same parties. The doctrine of res judicata is based on three maxims

(a) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same cause)

(b) Interest republicae ut sit finis litium ( it is in the interest of the state that there should be an end to a litigation); and

(c) Re judicata pro veritate occipitur (a judicial decision must be accepted as correct)

Res Judicata under Code Of Civil Procedure, 1908 Section 11 of CPC embodies the doctrine of res judicata or the rule of conclusiveness of a judgement. It enacts that once a matter is finally decided by a competent court; no party can be permitted to re- open it in a subsequent litigation. In the absence of such a rule there will be no end to litigation and the parties would be put to constant trouble, harassment and expenses.

The doctrine has been explained by Justice Das Gupta as follows - The principle of Res Judicata is based on the need of giving finality to the judicial decisions. What it says is that once a case is res judicata, it shall not be adjudged again. When a matter- whether on a question of fact or a question of law - has been decided between two parties in one suit or proceeding and the decision is final, either because no appeal was taken to a higher court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvas the matter again.

Essential Elements for Res Judicata 1. A previous suit in which the matter in issue directly and substantially should have been decided.

2. A competent Court of Civil jurisdiction should have decided it.

3. It should have been decided on merits and final decision should have been made after hearing.

4. It should contain directly and substantially the same matter in issue.

5. It should have been contested between the same parties or their legal representatives, such parties are indulging in litigation under the same title, with respect to the same cause of action.

If these conditions are fulfilled then subsequently/further instituted suit shall be liable to be dismissed by the application of doctrine of Res-judicata.

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Object of Res-judicata The object of Res-judicata is to prevent a question which has already been decided to be re-agitated. A question finally decided at one stage of a proceeding cannot be re-agitated between the same parties or their representatives at a subsequent stage.

Kinds of Res-judicata: There are two kinds of Res-judicata namely; Actual Res-judicata and Construc- tive Res-judicata.

1. Actual Res-judicata – It means a matter actually resolved by Court, between the parties in

earlier suit cannot be reopened through subsequent suit. In-other words an issue has been alleged by one party and either denied or admitted, (expressly or impliedly) by other party in earlier suit, second suit in respect of the same matter cannot be filed, and if any is filed, the same would be hit by actual Res-judicata.

2. Constructive Res-judicata – It means a matter which might and ought to have been made ground of claim or defence in a former suit, but a party ignores it, then that issue shall be deemed to have been a matter directly and substantially in issue in such suit. In other words if a party had an opportunity that he ought to have taken a plea (as a plaintiff or defendant) if he fails to do so, and the matter is decided, the decision will operate as Res-judicata in-respect of all issues, which were taken, and which ought and might have taken/and second suit would not lie for such issue.

Differences Between ‘Res Sub Judice’ and ‘Res Judicata’

Res Sub Judice Res Judicata Contained in Section 10 of C.P.C. Contained in Section 11 of C.P.C. Relates to a matter which is pending in a court of law. Relates to a matter adjudicated upon or a matter on

which judgement has been pronounced. It bars the trial of a suit in which the matter directly or substantially is pending adjudication in a previous suit.

It bars the trial of a suit of an issue in which the matter directly and substantially in issue has already been adjudicated upon in a previous suit between the same parties under the same title.

Res-subjudice prohibits proceedings of two parallel suits between same parties

Res-judicata prohibits second trial of the same dispute between same parties

The main spirit behind these two principles is that no person should be called in question twice for the same cause of action.

Place of Suing (Territorial Jurisdiction)

Section 15 to 20 of C.P.C. regulates the forum for the institution of suits.

1. Section 15 lays down that every suit shall be instituted in the Court of the lowest grade to try it. The object of this provision is that the courts of higher grade should not be overburdened with suits and to afford convenience to the parties and witnesses of such suits.

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2. Section 16 to 18 deal with suits relating to immovable property. As per Section 16, suits regarding

immovable property are instituted in the court within whose jurisdiction the immovable property is situated.

3. Section 17 – Suits for immovable property situated within jurisdiction of different courts – A suit to obtain relief for wrong to immovable property which is situated within the jurisdiction of different courts may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situated provided that the suit is within the pecuniary jurisdiction of such court.

4. Section 18 – Place for institution of suits where local limits of jurisdiction of courts are uncertain – Where there is an apparent uncertainty regarding the jurisdiction of the court, the suit may be filed in any of such courts after recording a statement to that effect by one of the courts to entertain and dispose of the suit.

5. Section 19 – Suits for compensation for wrongs to person or movable – Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.

Example –

(1) A, residing in Delhi, beats B in Kolkata. B may sue A either in Kolkata or in Delhi.

(2) A, residing in Delhi, publishes in Kolkata statements defamatory of B. B may sue A either in Kolkata or in Delhi.

6. Section 20 – Other suits to be instituted where defendants reside or cause of action arises – Section 20 provides for all other cases not covered by any of the foregoing rules. All such suits may be filed at plaintiff’s opinion in any of the following courts:

(a) Where the cause of action wholly or partly arises; or

(b) Where the defendant resides, or carries on business, or personally works for gain

(c) where there are two or more defendants, any of them resides or carries on business, or personally works for gain, provided that in such case –

(i) either the leave of the court is obtained, or

(ii) The defendants, who do not reside or carry on business or personally work for gain at that place, acquiesce in such situation.

Further, 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.

Example (a) A is a tradesman in Kolkata; B carries on business in Delhi. B, by his agent in Kolkata, buys

goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Kolkata. A may sue B for the price of the goods either in Kolkata, where the cause of action has arisen or in Delhi, where B carries on business.

(b) A resides at Shimla, B at Calcutta and C at Delhi. A, B and C being together at Varanasi, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at

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Varanasi, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court.

Set-Off, Equitable Set-Off and Counter Claim

Set Off Where in a suit for recovery of money by the plaintiff, the defendant finds that he also has a claim of some amount against the plaintiff, he can claim a set-off in respect of the said amount. The right of the defendant to claim set off has been recognised under Order 8, Rule 6 of the Code.

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

(a) The suit is for the recovery of money; (b) The sum of money must be ascertained;

(c) Such sum must be legally recoverable;

(d) It must be recoverable by the defendant or by all the defendants, if not more than one;

(e) It must be recoverable by the defendant from the plaintiff(s);

(f) It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;

(g) Both the parties must fill in the defendant’s claim to set-off, the same character as they fill in the plaintiff’s suit.

When a defendant pleads set-off, he is put in the position of the plaintiff as regards the amount claimed by him. Where the plaintiff does not appear and his suit is dismissed for default or he withdraws his suit 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 his favour if he is able to prove his claim.

Equitable Set-Off Rule 6 deals with legal set-off only. It is always in respect of ascertained sum of money. In addi- tion to legal set-off, equitable set-off may be claimed by the defendants in respect of even an unascertained sum of money, provided that both the cross-demands arise out of same transactions or are so connected in the nature and circumstances that they can be looked upon as parts of one transaction.

Legal Set-Off Equitable Set-Off

Sum of money claimed must be ascertained. Sum of money claimed may be ascertained or unascertained.

It can be claimed as a right. It depends upon the discretion of the court. It is not necessary that cross demands arise out of same transaction.

Cross-demands must arise out of same transaction.

It must be legally recoverable and is not time-barred. It may be allowed even when it is time barred. It requires court-fees. No court fees is required in equitable set-off.

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Counter Claim Rule 6A to 6G of Order 8 contain provisions regarding counter-claim. It 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 plaintiff’s claim which can be enforced by a cross section. Counter-claim can be set up in respect of action accruing to the defendant either before or after the filing of the suit but before the defendant has delivered his defence or before the time fixed for delivery of his defence has expired. Counter-claim should not exceed the pecuniary limits of the jurisdiction of the court. The counter-claim is to be treated as a plaint and the plaintiff can file a written statement in answer to it.

Difference Between Counter-Claim and Set-Off

Set-Off (Order 8, Rule 6) Counter-Claim (Order 8, Rule 6A-6G) 1. Set-off is a statutory defence to a plaintiff’s action. Counter-claim is substantially a cross action. 2. It must be for an ascertained sum or it must arise

out of the same transaction. It may be for ascertained or unascertained sum and it may arise out of different transactions.

3. Claim for set-off is a shield, which if established would afford an answer to plaintiff’s claim in Toto (as a whole) or pro tanto (in proportion).

Counter-claim is a sword which enables the defendant to enforce the claim against the plaintiff effec- tually as an independent action.

4. In legal set-off amount must be recoverable at the date of the suit.

Amount must be recoverable at the date of written statement.

5. Amount claimed must be below or up to suit claim. The counter-claim may be for a larger sum.

Relief Under Civil Procedure Code The Civil Court is empowered to give various types of relief and orders. All such relief and order can be clubbed into two categories, viz.,

A. Initial / Temporary Orders

B. Final Orders

Initial/Temporary Order There are also various types of temporary or initial orders, each of a different kind, and having a different implication altogether. They are:

Temporary Injunction (Order 39) Injunction can be described as a specific order which prohibits a wrongful act or wrongful course which has already commenced or directs the things to be restored in their prior place.The relief of injunction is granted in cases where compensation in money is not an adequate relief.

Section 36 of the Specific Relief Act,1963 provides that preventive relief is granted at the discretion of the Court by inunction – perpetual or temporary. Temporary injunctions are regulated by Order XXXIX of the Code of Civil Procedure,1908 while perpetual injunctions are regulated by the Specific Relief Act.

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Generally civil suits take a long time to decide. In such cases, if the court feels that, till the final order, the subject matter of suit is likely to be destroyed, it may grant “TEMPORARY IN JUNCTION”, to protect the subject matter. These injunctions are as follows:

• Restrain the defendant from damaging or disposing his property.

• Restrain the defendant from dispossessing the plaintiff from disputed property.

• Restraining the defendant from doing any other act which may make the whole suit infructuous.

• Restraining the defendant from committing any breach of contract.

• Restraining the defendant from committing injury of any kind.

However later on during the pending of suit or at the time of final hearing the court may revoke or modify the injunction granted.

Interlocutory Order (O39, R 6-R10) Interlocutory orders are also somewhat similar to temporary injunctions. Interlocutory order only settles intervening matter relating to the cause. Such orders are made to secure some end and purpose necessary and essential to the progress of case and generally collateral to the issues to be settled by the court in the final judgement. These orders are also of different natures, such as:

• Interim Sale: Interim sale of any movable property may be ordered, if it is subject to natural decay, such as vegetable etc.

• Detention Preservation, Inspection etc. of subject matter of suit – The court may order for:

— Detention, preservation or inspection of property or documents.

— Authorize any person to enter into any land or building, which is in the possession of other party, for the purposes of detention, preservation or inspection etc.

— To authorize any person to take samples.

• Deposit of Money: If the subject matter of suit is money, or movable property, the court may order the person holding the money in dispute to be deposited in the court.

Order of “Res Judicata” (Sec 10 and 11) • “Res Judicata” means an issue, which has already been decided by the court, in a previous case, cannot be raised again in a subsequent case.

• If such an issue, which is raised again, is substantial and material in a case, then the court may dismiss the whole case out rightly, before final hearing

Institution of Suit

A. Introduction A suit is a proceeding by which an individual pursues that remedy which the law affords. A suit is a civil action started by presenting a plaint in duplicate to the Court containing concise statement of the material facts on which the party pleading replies for his claim or defence. In every plaint, the facts must be proved by an affidavit.

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The main essentials of a suit are –

(a) The opposing parties i.e. parties to the suit

(b) The cause of action

(c) The subject matter of the suit; and

(d) The relief claimed

“Every Suit Shall be Instituted in Court of Lowest Grade Competent to Try It” In India, courts are hierarchically established. The lower courts have less powers than the higher or superior courts. The Supreme Court of India is at the top of the hierarchy. There are numerous lower courts but only one High Court per State and only one Supreme Court in the Country. Thus, it is impractical to move superior courts for each and every trivial matter. Further, the subject matter of a suit can also be of several kinds. It may be related to either movable or immovable property, or it may be about marriage, or employment. Thus, speciality Courts are set up to deal with the specific nature of the suit to deal with it efficiently. Similarly, it would be inconvenient for the parties to approach a court that is too far or is in another state. All these factors are considered to determine the court in which a particular suit can be filed. CPC lays down the rules that determine whether a court has jurisdiction to hear a particular matter or not.

B. Parties to Suit When a person has some dispute against another person he could move a civil suit before a Court of Law. Here the persons in dispute are the parties to the suit. Thus the parties are necessary element in a civil suit. In Civil Procedure generally there are two parties viz. the plaintiff and the defendant. There may also be third parties who come incidentally to a suit.

The Plaintiff: A plaintiff is the one who moves a suit by filing a plaint. So he must have a claim against another in law. He must be one who is competent to sue. He must have the legal right and locus standi to file the suit. Order 1 Rule 1 of CPC explains who may be joined as plaintiffs.

The Defendant: A person who defends allegations and claims made against him is called the defendant. He must be competent to be sued. Order 1 Rule 3 of CPC explains who all may be joined as defendants.

Third Party: All parties who are interested in the suit or its outcome can file applications in a Court of Law to add them as parties, either plaintiff or defendant. The defendant can also file application to join another person as defendant who shares the liability.

Misjoinder of Parties: In legal procedure (both civil and criminal), misjoinder refers to a wrongful joinder. Misjoinder of parties consists in joining as plaintiffs or defendants persons who have conflict- ing interests, or who were not involved in the same transaction or event. Adding or the presence of a party who is unwanted or unnecessary to the proceedings is called misjoinder of Party. As per Order 1 Rule 9 of CPC, no suit shall be defeated by reason of misjoinder of a party. To avoid such misjoinder, two factors are essential, viz.

1. The right to relief must arise out of the same act or transaction brought by plaintiffs/against the

defendants.

2. There is a common question of law or fact.

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Cause of Action – means every fact which, if cross-examined, would be necessary for the plaintiff to prove in order to support his right to the judgement of the Court. It is a bundle of essential facts which the plaintiff has to prove in order to sustain his action. Simply put, cause of action is incident that is punishable by law. The cause of action must be antecedent to the institution of suit.

Misjoinder of Causes of Action – Misjoinder of causes of action consists in joining several demands in one declaration which the law does not permit to be joined, to enforce substantive rights of recovery, that are distinct and contradictory. Under CPC, only related counts can be put together in a cause of action.

Example – for theft, the thief and people helping the thief can be p part of a joint suit for the cause of action of theft. But a claim of theft and the claim that his passport is invalid cannot be joined together and heard in the same suit.

C. Important Stages in Proceedings of a Suit A lawsuit begins when a complaint is filed with the court. The plaint consists of a heading and title, the body of plaint and the relief(s) claimed. Every suit shall be instituted in the Court of the lowest grade competent to try it.

1. Documents Filed Along With Plaint

A plaint is the pleading of the plaintiff on which a suit is filed. In order to substantiate the allegations and claims in the plaint there may be need of some documents. These documents will help the plaintiff for a fair chance of success in the suit. There are some which are undisputed and the non-production of these documents will not turn out to be fatal. But failure to produce documents which are necessary will be fatal to the case of the plaintiff.

• The rule with regard to production of documents along with the plaint is mentioned in Order 7 Rule 14 of the Code of Civil Procedure. Sub-Rule 1 of Rule 14 says that if the plaintiff relies upon a document in his possession for supporting his claims, he shall enlist such documents and produce along with the plaint when it is presented. Moreover, these documents are to be filed in the court along with copy.

• If the documents are not filed by the plaintiff along with the suit, he will be precluded from filing the same at any later stage. However these can be filed at a later stage with the leave of the Court [Order 7 Rule 14(3)].

• There is a provision to help the plaintiff in case the documents, which are very important for supporting his claim, are not within his possession. Sub-Rule 2 says that the plaintiff can state such documents in the plaint and wherever possible it shall be stated in whose possession or power those documents are.

• In certain cases, especially in the case of Banks as plaintiffs, only certified copy of documents need to be filed at the time of presentation. The original documents can be produced later.

• Documents filed along with the plaint are treated as part of the pleadings.

In Civil Rules of Practice in Rule 16(1) it is stated that every plaint or other proceeding shall at the foot thereof, contain a list of documents signed by the party or his pleader.

2. Service of Summons in CPC

When a suit is instituted by the plaintiff the court orders to issue summons to the defendant. This is to permit the defendant to appear and answer the claim of the plaintiff. This ensures a fair trial.

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Without a duly served summon, no further action can be taken against the defendant. So sending of summons is very important in a civil case.

• Every summons must be signed by the judge or an authorised officer of the Court and sealed with the seal of the court and be accompanied by a copy of the plaint.

• Section 27 and Order 5 of the Code of Civil Procedure deals with the service of summons to defendant or defendants – where there are more than one. As per section 27 the summons may be served on such day not beyond 30 days from the date of the institution of suit.

• The ordinary mode of service of summon is by delivery or tendering a copy of it to the person summoned either personally or to his agent or to any adult male/female member of his family, against signature in acknowledgement of the service.

• As per Order 5 the defendant is to file written statement within 30 days from the date of service of summons. Proviso of Order 5 states that – No such summons shall be issued when a defendant has appeared at the presentation of plaint and admitted the plaintiff’s claim. So in order to attract this proviso the defendant must appear and as well as admit the claim.

• In another proviso it is stated – If the defendant fails to file the written statement within the prescribed period of 30 days, he shall be allowed to file the same on such other days as may be specified by the Court for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.

• Every summons shall be accompanied by the copy of the plaint also.

• The defendant may appear in person or by a duly instructed pleader or by a pleader accompanied by some person who able to answer all questions.

3. Documents to be Filed with Written Statement

The written statement is the pleadings of the defendant in a suit. A defendant categorically and specifically denies all allegations against him and all claims raised by the plaintiff in the plaint. He can also raise a counter claim in the written statement.

As in a plaint, the defendant can also file documents along with written statement, if he relies upon the particular document. The rule is envisaged under Order 8 Rule 1A of the Code of Civil Procedure. If the defendant has not produced the document along with his written statement, he cannot afterwards produce it in Court without its leave.

4. Delivery of Summons by Court

(i) Where the defendant resides within the jurisdiction of the Court in which the suit is filed [Rule 9] – The Summon shall, unless the court otherwise directs, be delivered or sent either to the proper officer to be served by him or one of his subordinates or to such courier services as are approved by Court.

The summons may also be sent by any of the following means, but it will be at the expense of plaintiff:

(a) by registered post acknowledgement due, addressed to the defendant or his agent em-

powered to accept the service; or

(b) by speed post; or

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(c) by such courier services as are approved by the Court; or

(d) by any other means of transmission of documents (including fax message or electronic mail service) provided by the rules made by the High Court

(ii) Where the defendant resides in another State [Section 28] – If the defendant is residing in another state, the summons is served through a court i.e. the court in which the suit is instituted issues the summons to the court in the jurisdiction of which the defendant resides for it to be served upon him. Now the court to which the summons is sent shall proceed as if it had been issued by such court and then return the summons to the court of issue together with the record of its proceedings in this regard.

(iii) Where the acknowledgement to a summon contains an endorsement that the defendant or his agent had refused to take delivery of the postal summons or had refused to accept the summons, the Court issuing the summons shall declare that the summons had been duly served on the defendant.

(iv) Where the Court is satisfied that the defendant is avoiding service of summon, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy in some conspicuous place in the Court-house, and also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business.

5. Appearance of Parties and Consequences of Non-Appearance

The general provisions of CPC are based on the principle that both the parties must be given an opportunity to be heard. The proceedings must not be held to the disadvantage of one party. Order 9 lays down rules regarding the appearance and the consequences of non-appearance of a party in the hearing.

(i) Where neither party appears – If both the parties do not appear when the suit is called on for

hearing, the Court may make an order that the suit be dismissed.

(ii) Where the plaintiff appears and the defendant does not appear (a) when the summon was duly served – The Court may make an order that the suit shall be

heard ex-parte.

(b) Where the plaintiff appears and the defendant does not appear when the summon was not duly served – the Court shall direct a second summons to be issued and served on the defendant.

(c) When summons served but not in due time – the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant

(d) Where due to plaintiffs’ default the summons was not duly served or was not served in sufficient time – the Court shall order the plaintiff to pay the costs occasioned by the post- ponement.

(iii) Where only the defendant appears – The Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where only part of the claim has been admitted, shall dismiss to the extent of remainder.

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In Re: [Hochest Company Vs V S Chemical Company], the SC explained that an ex parte decree is such decree in which defendant did not appear before court and the case is heard in the absence of the defendant from the very beginning

Ex parte Decree (Order 9) – As per Rule 6, if the defendant fails to appear before the court in spite of a proper service of the summons, the court may proceed ex-parte and may pass a decree in favour of the plaintiff. This is called an ex-parte decree.

Remedies available to the defendant against an ex parte decree (i) Application to set aside the ex parte decree - As per Order 9, Rule 13, a defendant may

apply before the court that passed the decree to set it aside. If he satisfies the court that the summons was not duly served or he was prevented by any other sufficient cause from attending the hearing, the court shall make an order setting aside the decree. For example, bona fide mistake as to the date or hearing, late arrival of train, etc. are sufficient causes for absence of the defendant. Such an application for setting aside may be made within 30 days from the date of decree as per Section 123 of Limitation Act.

(ii) Prefer an appeal against the decree under Section 96(2).

(iii) Apply for review under Order 47 Rule 1.

(iv) File a suit on the ground of fraud.

All the above remedies are concurrent and can be pursued concurrently.

6. Discovery by Interrogation and Production of Documents Discovery means finding out material facts and documents from an adversary in order to know and ascertain the nature of the case or in order to narrow the points at issue or to avoid proving admitted facts. The objects of a discovery are –

(i) Ascertain the nature of the case of the opponent or material facts for the opponent’s case.

(ii) Obtain admission of opponent for supporting the party’s own case

(iii) Narrow the points at issue

(iv) Avoid expense and effort in proving admitted facts.

Discovery consists of a variety of methods including interrogation, deposition and production of documents.

• Discovery conducted using written questions may be secured through written interrogatories or requests to produce documents or other things. These requests may be served only upon a party. A request for production may seek any item within a party’s control.

• A deposition is an interview of a party or witness conducted by a lawyer. Usually, this interview is conducted orally with a lawyer for the other side present and able to participate.

The procedure of Discovery involves a number of procedural rules –

• how a deposition is conducted, the permissible scope and who may conduct a deposition,

• when a party may object to a question at a deposition or to an interrogatory,

• when a party may enter upon land for inspection,

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• when a party may make physical or mental inspections of another party, and

• what happens when a party does not cooperate with a court order directing compliance with discovery.

Admission by parties – ‘Admission’ means that one party accepts the case of the other party in whole or in part to be true. Admission may be either in pleadings or by answers to interrogatories, by agreement of the parties or admission by notice.

7. Issues

Issues are points of contest between the parties in a suit. The determination of issues has great importance in the trial of a case, because it is issues and not the pleadings, which indicates the appropriate evidence to be given. The object of settlement of issues is to determine the material points in controversy between the parties.

Issues arise when a material proposition of fact or law is affirmed by one party and denied by other party. Issues, whether raised from allegations in the pleadings or from other materials, should not be inconsistent with pleadings; the court is bound to frame the proper issues arising from the pleadings.

Framing of Issues According to order 14, issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence.

Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. At the first hearing of the suit the court shall, after reading the plaint, and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend.

If the defendant at the first hearing of the suit makes no defence, then according to order 14 rule 1, nothing in this rule requires the court to frame and record issues.

Kinds of Issues (i) Issues of Fact: Issue of fact means any issue, which has not been determined, by a rule of law, but

is to be answered, in accordance with the evidence laid before the court.

(ii) Issues of Law: Issue of law means that issue, which is to be answered in accordance with the law and not in accordance with the facts or evidences that is laid before the court.

According to order 14, “ where issues both of law and fact arise in the same suit, and the court is of the opinion, that the case or any part thereof may be disposed of on issues of law only, it shall try those issues first, and for that purpose may if it thinks fit, postpone the settlement of the issues of fact until after the issue of law have been determined”.

8. Hearing of the Suit • The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff and contends that either in point of law or on some additional facts alleged by the defendant

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the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has the right to begin.

• Where there are several issues, the party beginning shall state his case and produce his evidence in support of the issues which he is bound to prove.

• The other party shall then state his case and produce his evidence (if any) and may then address the Court generally on the whole case.

• The party beginning may then reply generally on the whole case.

• Any party may address oral arguments in a case, and shall submit if the Court so permits.

• A copy of such written arguments shall be simultaneously furnished to the opposite party.

• The Court shall fix such time limits for the oral arguments by either of the parties in a case, as it thinks fit.

9. Affidavit

An Affidavit is a statement written and sworn to in the presence of someone authorized to administer an oath, such as a notary public, in which the person swears to the notary that the statement is true. Order XIX of CPC deals with Affidavit and there are three rules under the said Order.

RULE 1: Power to order any point to be proved by affidavit – Any court may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the court thinks reasonable:

Provided that where it appears to the court that either party bona fide desires the production of a witness for cross examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit.

RULE 2: Power to order attendance of deponent for cross examination – (1) upon any application evidence may be given by affidavit, but the court may, at the instance of either party, order the attendance for cross examination of the deponent. (2) Such attendance shall be in court, unless the deponent is exempted from personal appearance in court or the court otherwise directs.

RULE 3: Matters to which affidavits shall be confined – (1) affidavit shall be confined to such facts as the deponent is able of his knowledge to prove, except on interlocutory applications, on which statements of his belief may be admitted; provided that the grounds thereof are stated.

(2) the costs of every affidavit which shall unnecessarily set forth matters of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the court otherwise directs) be paid by the party filing the same.

10. Judgement

After the case has been heard, the Court shall pronounce the judgement in an open court either at once or on some future day as may be fixed by the court for that purpose.

If judgement is not pronounced at once, every effort shall be made by the Court to pronounce the judgement within 30 days from the date on which hearing of the case was concluded. But if due to unavoidable circumstances, it is not possible to do so, the Court must fix a future day which should not be a day beyond 60 days.

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In Re: [Kanahaiyalal Vs. Anup Kumar], 2003, where the High Court pronounced the judgement after two years and six months, the judgement was set aside by the Supreme Court observing that it would not be proper for a court to sit tied over a matter for such a long period.

As per Section 2 (9), “Judgment” means the statement given by the judge on the grounds of a decree or order. Every judgment should contain - a concise statement of the case, the points for determination, the decision thereon, the reasons for the decision.

In Re: [Balraj Taneja Vs Sunil Madan], 1999, SC held that a Judge cannot merely say “Suit de- creed” or “Suit dismissed”. The whole process of reasoning has to be set out for deciding the case one way or the other.

As per Rule 6A of Order 20, the last part of the judgment should precisely state the relief granted. Thus, a judgment is a state prior to the passing of a decree or an order. After pronouncement of a judgment, a decree shall follow. The judgement must be dated and signed by the judge.

11. Decree The judgement of court is followed by a decree. It must be ensured that the decree is drawn up expeditiously and in any case within a period of 15 days from the date on which the judgement is pronounced. A decree should contain the:

(i) Number of the suit.

(ii) Names and descriptions of the parties and their registered addresses

(iii) Particulars of the claim

(iv) Relief granted or other determinants of the suit.

(v) Amount of cost incurred and by whom is to be paid.

12. Execution of a Decree As per Section 38, a decree may be executed either by the court which passed it or the court to which it is sent for execution. While executing a decree, several questions and objections may arise as to the manner of execution. It would be impractical to institute new suits to resolves such matters. Thus, Section 47 lays down the general principal that any questions that arise in relation to the execution of the decree should be resolved in execution proceeding itself and not by a separate suit.

13. Appeals The term appeal is an undefined term, ordinarily it means a complaint made to a superior court against the decision of a subordinate court with the object of getting such order set-aside or reversed. Appeal is the continuation of the original proceedings before a superior court.

Right to appeal is not a natural or inherent right attached to litigation. Such a right is given by the statute or by the rules having the force of a statute. The general rule is that the parties to an appeal shall not be entitled to produce additional evidence whether oral or documentary. But the appellate court has discretion to allow additional evidence.

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There are four kinds of appeals provided under the Civil Procedure Code:

(i) Appeals from original Decrees (Section 96-99, Order 41) • Preferred in the Court superior to the Court passing the decree.

• No appeal lies where the decree has been passes with the consent of parties.

• No appeal lies in any suit of the nature cognizable by the Courts when the value of subject matter of original suit does not exceed ten thousand rupees.

(ii) Second Appeals (Section 100-103, Order 42) • Save as otherwise expressly provided in this Code, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the case involves a substantial question of law.

• An appeal may lie under this section from an appellate decree passed ex parte.

• In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

• Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. The appeal shall be heard on the question so formulated and the respondent shall be allowed to argue that the case does not involve such question.

• The second appeal is on “Question of Law” alone.

(iii) Appeals from Orders (Section 104-106, Order 43, Rule 1-2) Appeal from orders would lie only from following orders on ground of defect or irregularity in law–

• An order from Section 35A of the Code and order under section 91 or 92 refusing leave to institute suit of the nature referred in Section 91 or 92

• An order under section 95 for compensation for obtaining attachment or injunction on insufficient ground.

• An order under the Code imposing a fine or directing the detention or arrest of any person except in execution of a decree

• Appealable orders as set out under order 43

However, no appeal shall lie from following orders –

• any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees

• from any order passed in appeal under section 100.

(iv) Appeals to Supreme Court (Sections 109 and 112, Order 45) would lie in following cases –

• From any decree or order of the Civil Court when the case is certified by the Court deciding it to be fit for appeal to Supreme Court or when special leave is granted under Section 112 by the Supreme Court itself.

• From any judgement, decree or final order passed on appeal by a High Court or by any other Court of final appellate jurisdiction.

• From any judgement, decree or final orders passed by a High Court in exercise of original civil jurisdiction

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Reference, Review and Revision

Reference to High Court [Section 113] A court, at any time before judgement, subject to such conditions as may be prescribed, may state a case and refer the same for the opinion of the High Court and High Court may make such order thereon as it thinks fit.

Review [Section 114 and Order 47] Review means consideration, inspection or re-examination of a subject or thing. According to sec- tion114 of CPC, any person aggrieved by a decree or order from which an appeal is allowed but not filed, or a decree or order from which no appeal is allowed, can file a review petition in the same court which passed such decree or order on the following grounds:

1. When new and important matter or evidence is discovered which after the exercise of due diligence

was not within his knowledge, or could not be produced by him at the time when the decree or order was passed;

2. When there is any mistake or error apparent on the face of the record;

3. When there is any other sufficient reason.

Revision [Section 115] Revision means re-examination of cases which involve the illegal assumption, non-exercise or irregu- lar exercise of Jurisdiction. Revisional jurisdiction does not confer any substantive right, and the right of revision is merely a privilege granted to a party.

In Revision the court can interfere, if the case brought before it is a decided case by subordinate court, and when the same is not appealable. If this condition is fulfilled, the revisional court may interfere to check, where the subordinate court has:

(a) exercised a jurisdiction not vested in it, or

(b) failed to exercise a jurisdiction vested in it, or

(c) acted in exercise of its jurisdiction illegally or with material irregularity.

Difference between Appeal and Revision Basic difference between an appeal and a revision is that appeal is a right of party, but revision is a discretionary power of court. An appeal is continuation of the proceedings, in effect the entire proceedings are before the appellate court and it has power to review the evidence subject to statutory limitations prescribed. But in the case of a revision whatever powers the revisional authority may or may not leave, it has no power to review the evidence unless the statute expressly confers on it that power.

Suits by or Against Minor

A Minor is a person (i) who has not attained the age of 18 years and (ii) for a minor for whose person or property a guardian or next friend has been appointed by the Court of wards. The age of majority is completed at the age of 21 years.

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• Since a Minor is not capable of entering into a contract, even suit, which is instituted by him,

will be filed in his name by his “next Friend”, i.e. any other person who has attained majority in some way and is of sound mind and shall not be a defendant for the suit

• Such “Next Friend” should be closely related to the minor so as to ascertain the interests of the minor, for instance father, mother, brother, sister or guardian.

• The courts can order the next friend to give security for payment of all the costs incurred or likely to be incurred by the defendant.

• Where there is neither any guardian appointed by a competent authority, nor any other person fit and willing to act as a guardian for the suit, the Court can appoint any of its officers as a guardian to the suit with costs to be paid by the pleader or other person by whom it was presented.

• A “Next Friend” is not allowed to enter into any agreement/ compromise on the minor’s behalf, which may be in reference to the particular suit unless the court permits him to do so.

• A “next friend” may retire but not before he recommends another person to take his place and gives security for all the costs that have already been incurred in the suit.

• On Attaining Majority.

• On attaining majority, it shall be at the option of the minor plaintiff whether to proceed with the suit or opt out.

• In case he opts to proceed with the suit, he will have to make an application for discharge of “Next Friend”, and permission to proceed on own name.

• In case he opts out, he can apply for an order to dismiss the suit / application on making payment of costs incurred by the opposite party or which has been paid by his next friend.

In RE: [Ram Chandra vs Ram Singh], 1968 - SC held that a decree passed against a minor or a lunatic without appointment of a guardian is a nullity and is void and not merely voidable.

Summary Procedure

Order 37 of the Civil Procedure Code provides for the summary procedure. The provision has been made in order to prevent the unreasonable obstruction laid down by the defendant, who has no defence. Unlike other civil suits, the trial in summary suits begins after the court grants leave to the defendant to contest the suit. The court dealing with summary suits can pass the judgment in the favour of the plaintiff if

1. the defendant has not applied for leave to defend or if such application has been made but

refused, or

2. the defendant who is permitted to defend fails to comply with the conditions on which the leave to defend was granted

The important feature of “summary suit” is that here the Defendant is not allowed to defend the suit, unless he takes the permission from court. Defendant is allowed to defend himself only if according

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to the affidavit filed by him; it is must for the plaintiff to prove charges against him. If by affidavit by Defendant, it appears that he has no defence, then court will decline him the permission and pass necessary orders in favour of plaintiff.

Kinds of Suits

1. Suits upon bills of Exchanges, hundies or promissory notes;

2. Any suit filed by the plaintiff for recovery of a debt / money payable by the defendant according to a written contract, or

3. In case of an enactment wherein the amount to be recovered is a fixed amount of money, or a debt other than a penalty, or

4. A guarantee, where the claim against the principal is in respect of a debt or for money only

Institution of Summary Suits

Order 37 rule 2 deals with the institution of summary suits. Such suit may be instituted by presenting a plaint which shall contain ----

1. a specific averment to the effect that the suit is filed under this Order;

2. that no relief, which does not fall within the ambit of this rule, has been claimed in the plaint;

3. the following inscription, immediately below the number of the suit in the title of the suit, namely:-”(Under Order XXXVII of the Code of Civil Procedure,)”

Leave to Defend

Order 37; rule 3 prescribes the mode of service of summons etc. and leave to defend. The defendant is not entitled to defend the suit unless he enters an appearance within 10 days from the service of summons. Such leave will be granted only if the affidavit filed by the defendant discloses such facts as may be deemed sufficient to entitle him to defend. Such leave may be granted to him unconditionally or upon such terms as may appear to the court or judge to be just.

Leave to defend, however, should not be refused unless the court is satisfied that

(a) The facts disclosed by the defendant do not indicate that he has a substantial defence or that the

defence to be put by him is frivolous or vexatious.

(b) The part of the amount claimed by the plaintiff and admitted by the defendant is deposited by him in the Court.

The court then pronounces the judgement and passes a decree. Under special circumstances, the Court may, after decree set aside the decree and if necessary stay or set-aside the execution and may give leave to the defendant to appear and to defend the suit.

Difference Between Summary Suit and Ordinary Suit

1. In the ordinary suit the defendant is entitled to defend the suit as of right. But in a summary suit he is not entitled for the same except with the leave of the court.

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2. In an ordinary suit the decree cannot be set aside by the trial court except in review. But in the

summary suit the trial court may set it aside under special circumstances

3. The summary suit must be brought within 1 year from the date on which the debt becomes due and payable, whereas the period of limitation for suits for ordinary cases under negotiable instrument is 3 years.

Examination Questions

Distinguish Between

2008 - Dec [4] Distinguish between the following :

(i) ‘Judgment’, ‘decree’ and ‘order’.

(ii) ‘Set-off’, ‘counter-claim’ and ‘equitable set-off’.

(iii) ‘Appeal’, ‘revision’ and ‘review’. (4 marks each)

Answer (i) ‘Judgement’ means the decision given by a court. The grounds for it would already have been laid

by the decree or the order on which the court bases its judgement. It is the final ruling given by a court with regard to a case. It helps in deciding the rights and obligations as they are supposed to be between the two litigating parties.

‘Decree’ means the declaration given by the court as a decision in a suit as to the rights of a litigating party. It can be a preliminary decree or a final one. They are issued to uphold the rights of a party to any property or to some legal recourse.

‘Order’ means a decision given by a civil court in a case; it is not a decree. It means a proclamation passed by the court that decides upon the legal relationship between parties and their inter se rights and liabilities.

(ii) ‘Set-off’, ‘counter-claim’ and ‘equitable set-off’ - ‘Set off’ means a settlement where both the plaintiff and the defendant have some claims to be collected from each other. What one party owes to another might be used to discharge all or a part of the debt he is owed by the other party.

‘Counterclaim’ means a reverse claim made by one party against the other, where both claims are heard as part of the same proceedings. In set-off proceedings, there is a single judgement, whereas in case of counterclaims, there are separate judgements for each claim.

There are various types of set-offs. One of these is an ‘equitable set-off’. It implies the rights of set- off arising from the same transaction instead of from different ones. Hence, the legal action takes the form of a single lawsuit instead of two different ones.

(iii) ‘Appeal’, ‘revision’ and ‘review’ - An ‘appeal’ is filed to a higher court if either the plaintiff of the defendant is not satisfied with the decision passed by the lower court. Appeals can lie from decrees or orders of the court. Sections 96 to 109 of the Code of Civil Procedure, 1908 cover appeals.

‘Revision’ is when the High Court calls for the records of a case in which no appeal lies and if it feels that the lower court has passed a judgement which it is not entitled to pass for want of jurisdiction, or did not use its valid jurisdiction, or used it illegally or improperly.

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‘Review’ means a reconsideration of the judgement given by a court in the form of a decree or an order. This is usually done when the person aggrieved with the judgement feels that the court has not given due consideration to the facts of the case, or when new facts are discovered, or when there is some obvious mistake in the records.

2009 - June [3] Distinguish between the following:

(iv) ‘Res judicata’and ‘stay of suits’ (4 marks)

Answer (iv) ‘Stay of suit’ implies the action taken under Section 10 of the Code of Civil Procedure, 1908. It

is the Doctrine of res sub-judice. The doctrine of res sub-judice refers to a matter pending before a judge, or court, or not yet decided. It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to has not been reached yet. The doctrine or rule implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other court until it has been decided upon in the first court the matter was fiied in. This doctrine helps in avoiding duplicity of cases, and prevents opposing judgements being reached in same matters (Section 10 of the Code of Civil Procedure, 1908). When such a case arises, generally a stay operates on the second or following suit

‘The Doctrine of Constructive Res Judicata’ has been provided in Section 11 of the Code of Civil Procedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The reasons are as below –

— The same party should not be troubled with the same matter again and again.

— There should be a limit to the number of cases filed in a court, i.e. vexatious cases should not be entertained.

— The same matter should not be used for wasting valuable court time repeatedly.

The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s).


(iv) ‘Review’ and ‘revision’ in civil law. (4 marks)

Answer Review: Section 114 of the Civil Procedure Code provides that subject to prescribed provision any person considering himself aggrieved by a decree or order from which an appeal is allowed by this Code but from which no appeal has been preferred, by a decree or order from which no appeal is allowed by this court or by a decision on a reference from a Court of Small Causes, may apply for a review of the judgment to the court which passed the decree or made the order and the court may make such order thereon as it thinks fit.

Revision: Section 115 of the Civil Procedure Code provides that the High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto and if such subordinate court appears to have a jurisdiction not vested in it by law or to have failed to exercise a jurisdiction of vested or to have acted in the exercise of its jurisdiction

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illegally or with material irregularity, the High Court may make such order in the case as it thinks fit. High Court shall not vary or reverse any order made or any order deciding an issue in the course of a suit or other proceeding except where the order if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings.


(iv) ‘Set-off’ and ‘counter-claim’. (4 marks)

Descriptive Questions

2009 - Dec [4] (b) Discuss the doctrine of res judicata under section 11 of the Code of Civil Procedure, 1908. (5 marks)

Answer Res judicata: Once the suit is decided by court it cannot be filed subsequently between

same parties on same cause of action. It restrains the repetition of same litigation.

Once a res is judicata, it shall not be adjudged again. [Section 11]

Conditions for res judicata—

The matter directly and substantially in issue in former suit shall also be directly and substantially in issue in later suit.

The former suit has been decided-former suit means which is decided earlier. The said issue has been heard and finally decided.

Such former suit and the latter suit are between the same parties or litigation under the same title or persons claiming under parties above.

The doctrine of res judicata is based on the following grounds of public policy—

The doctrine of res judicata is bar or restraint on repetition of litigation of the same issues. There should be an end of litigation

The parties to a suit should not be harassed to agitate the same issues or matters already decided between them.

The time of court should not be wasted over the matters that ought to have been and should have been decided in the former suit between the parties.

It is a rule of convenience and not a rule of absolute justice.

2011 - June [5] (c) Define res judicata and state the conditions of its application. (5 marks)

Practical Questions

2008 - Dec [8]. (a) Atul was running a school at a certain place. Ali started another school near the school of Atul. As a result of this, most of the students of Atul’s school left his school and joined Ali’s

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school. Due to competition, Atul had to reduce the fees by ` 40 per student per quarter and thus he suffered huge monetary loss. Atul filed a suit against Ali in the court for compensation. Is the suit instituted by Atul maintainable ? Give reasons by referring to relevant case law. (6 marks)

Answer This would come under the anti-trust laws and is a kind of business tort. However, the suit instituted by Atul shall be maintainable only if it is proven that Ali followed some anti-competitive practices and resorted to wrongdoing to cut down the competition posed by Atul. If a person pres- ents fair competition by lowering his own prices and enticing the others customers to his trade, it is valid. It will cross the bounds of legality when the price cuts result in losses to him, but he continues regardless.

2009 - June [7] (c) Anurag, a child, entered the botanical garden of a municipality and consumed some attractive looking but poisonous berries. As a result of that, he died. The representatives of the child sued the municipality for damages. Will they succeed? Give reasons. (5 marks)

Answer (c) They will not succeed in case the plants were properly categorized and the municipality took clue

care to warn people of the dangerous nature of the berries. If after this, anyone consumes them, and is harmed by that consumption, it is not the responsibility of the municipality.

2009 - Dec [6] (c) A suit was instituted by the plaintiff company alleging infringement by the defendant company for using trade name of medicine and selling the same in wrapper and carton of identical designs with same colour combination, etc., as that of plaintiff company. A subsequent suit was instituted in a different court by the defendant company against the plaintiff company with similar allegations. In such a situation, advise the plaintiff company the procedure adopted by the courts. (5 marks)

Answer Rule: Section 10 of the Civil Procedure Code deals with stay of suit. Stay of suits prevents courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of same matter in issue. The purpose is also to avoid conflict of decision. The institution of second suit is not barred but the trial cannot be proceeded with.

Facts of the case: A suit was instituted by the plaintiff company alleging infringement by the defendant company by using trade name of biscuits and selling the same in the packing of identical design, etc., as that of plaintiff company. A subsequent suit was instituted in a different court by the defendant company against the plaintiff company with the similar allegations.

Question involved: What is the validity of the subsequent suit?

Decision: The institution of subsequent suit as per the rule above is not barred but the trial cannot be proceeded with.

2009 - Dec [8] (b) Aamir effects an insurance policy on his own life with the Life Insurance Corpora- tion of India (LIC) and deposits it with a bank for securing payment of an existing debt. Aamir dies

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and bank claims the amount from the LIC contrary to the claims of Aamir’s heirs. Decide whether the claim of the bank is maintainable. (5 marks)

Answer In the terms of the provisions of the Transfer of Property Act 1882, if Aamir dies, the bank is entitled to receive the amount of the policy and to sue on it without concurrence of Aamir’s executors. The aforesaid provisions are –

Section 130 of the Transfer of Property Act, 1882 provides rules for transfer of actionable claim as under:

(a) Transfer of an actionable claim whether with or without consideration shall be effected only by

the execution of an instrument in writing signed by the transferor or his duly authorised agent.

(b) Such transfer shall be complete and effectual upon the execution of such instrument.

(c) All the rights and remedies of the transferor, whether by way of damages or otherwise, shall I vest in the transferee, whether such notice of the transfer is given or not.

(d) Every dealing with the debt or other actionable claim by the debtor or other person from or against whom the transferor would have been entitled to recover or enforce such debt or other actionable claim, shall be valid as against such transfer.

(e) The transferee of an actionable claim may, upon the execution of such instrument of transfer, sue or institute proceedings for the same in his own name without obtaining the transferor’s consent to such suit or proceedings and without making him a party thereto.

(f) The aforesaid provisions shall not apply to the transfer of a marine or fire policy of insurance, or affects the provisions of section 38 of the Insurance Act, 1938.

2010 - June [8] (a) Anil was a trustee of a trust. After Anil’s death, Brij wrongfully takes the possession of the trust property. Chandan, the son of Anil files a suit for recovery of possession of the property against Brij as the legal heir of Anil in his individual capacity. But Chandan did not succeed. Then Chandan files another suit for recovery of trust property against Brij in the capacity of trustee as he was appointed as trustee after the death of Anil. Whether the second suit is barred by the doctrine of constructive res judicata”? Explain. (6 marks)

(b) Mohan filed a suit against Sohan and Rohan for partition of coparcenery property ‘P-V. The suit has

been decided. Mohan files another suit against Sohan and Rohan for the partition of coparcenery property ‘P-2’, which was in existence at the time of filing of the first suit. Decide. (5 marks)

Answer (a) The Doctrine of Constructive Res Judicata’ has been provided in Section 11 of the Code of Civil

Procedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The reasons are as below –

• The same party should not be troubled with the same matter again and again.

• There should be a limit to the number of cases filed In a court, i.e. vexatious cases should not be entertained.

• The same matter should not be used for wasting valuable court time repeatedly.

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In this case, the two suits are filed by Chandan in two different capacities. Hence, the second suit is not barred.

(b) This case is covered by Rule 2 (Order 2) of the CPC, which provides that in a previous suit filed by the plaintiff, the entire claim which he is desirous of obtaining should be included. If it is not so done, inclusion of the claims left out in the previous plaint will not be allowed in a second plaint filed by the same party against the same defendant.

Hence, the second suit filed by Mohan against Sohan and Rohan is not to be allowed.

2010 - Dec [7] (c) Ram and Shyam sell rice for ` 25,000 to Sohan and Mohan. Sohan sells cloth worth ` 28,000 to Shyam. Sohan files a suit against Shyam for recovery of price of cloth. Shyam claims set-off of the cost of rice in this suit. Will he succeed ? (5 marks)

Answer ‘Set off’ means a settlement where both the plaintiff and the defendant have some claims to be collected from each other. What one party owes to another might be used to discharge all or a part of the debt he is owed by the other party.

In the given case, Sohan is the plaintiff while Shyam is the defendant. The amount of which set-off is claimed by the defendant Shyam is not recoverable from Mohan, who is jointly liable with Sohan to pay it. Mohan is not party to this suit. In view of the factual situation, Shyam will not be allowed set-off of the amount claimed by him, as set off is allowed only against those parties which are jointly liable in the first place.

2011 - June [7] (a) Alok was running a school at a certain place. Bimal started another school near the school of Alok. As a result of this, most of the students of Alok’s school left his school and joined Bimal’s school. Due to competition, Alok had to reduce the fees by ? 40 per student per quarter thereby suffering huge monetary loss. Alok instituted a suit against Bimal in the court for claiming compensation. Is the suit instituted by Alok maintainable ? (6 marks)

Short Notes

2006 - Dec [2] (a) Write short note on ‘temporary injunctions’ and ‘interlocutory orders’. (4 marks)

Answer Temporary injunctions’, according to Order XXXIX of the Code of Civil Procedure, 1908, means an order passed by a court to restrain someone from doing something that would result in alienation of property, or its destruction, or when the plaintiff is in danger of being dispossessed altogether. The plaintiff needs to establish to the satisfaction of the court that the losses suffered by him would be irreversible, and of such a nature as cannot be compensated, if the injunction is not granted. Such an injunction is for a short duration of time, normally for the time taken by the court to reach a final decision. It is issued after the suit has been filed and when it remains pending. A prima facie case and balance of convenience in the plaintiff’s favor are essential to get a temporary injunction issued.

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‘Interlocutory orders’ are orders passed by a court of law in a case where they feel an order should be given regarding a matter that needs to be resolved as soon as possible, or the value of the property in question would diminish. For example, the court may order sale of movable property even when the suit has not been resolved, if the property is subject to depreciation in value with the passage of time.

Distinguish Between

2000 - June [4] (a) Distinguish between:

(ii) ‘Temporary injunction’ and ‘perpetual injunction’. (4 marks)

Answer An ‘injunction’ is a court order preventing someone from doing something, i.e.. from committing specific acts.

Temporary injunctions’ or ‘interlocutory injunctions’, according to Order XXXIX of the Code of Civil Procedure, 1908, means an order passed by a court to restrain someone from doing something that would result in alienation of property, or its destruction, or when the plaintiff is in danger of being dispossessed altogether. The plaintiff needs to establish to the satisfaction of the court that the losses suffered by him would be irreversible, and of such a nature as cannot be compensated, if the injunction is not granted. Such an injunction is for a short duration of time, normally for the time taken by the court to reach a final decision. It is issued after the suit has been filed and when it remains pending. A prima facie case and balance of convenience in the plaintiff’s favor are essential to get a temporary injunction issued.

A ‘perpetual injunction’, often a ‘permanent injunction’, on the other hand, is a relief available to the plaintiff only at the conclusion of the trial. This type of injunction would be granted when the conditions that necessitated the injunction in the first place continue and are proved to be of a permanent nature. It is ordered using the final judgment.

2003 - Dec [3] (b) Distinguish between ‘temporary injunction’ and ‘perpetual injunction’. (4 marks)

2003 - Dec [4] Distinguish between the following:

(ii) ‘Judgement’, ‘decree’ and ‘order’. (4 marks)

Answer ‘Judgement’ means the decision given by a court. The grounds for it would already have been laid by the decree or the order on which the court bases its judgement. It is the final ruling given by a court with regard to a case. It helps in deciding the rights and obligations as they are supposed to be between the two litigating parties.



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2005 - Dec [4] (b) Differentiate between the following in the context of the Code of Civil Procedure, 1908:

(i) ‘Set off’ ‘counter claim’ and ‘equitable set off’.

(ii) ‘Reference’, ‘review’ and ‘revision. (4 marks each)

Answer (i) ‘Set off’ means a settlement where both the plaintiff and the defendant have some claims to be

collected from each other. What one party owes to another might be used to discharge all or a part of the debt he is owed by the other party.

‘Counterclaim’ means a reverse claim made by one party against the other, where both claims are heard as part of the same proceedings. In set-off proceedings, there is a single judgement, whereas in case of counterclaims, there are separate judgements for each claim.

There are various types of set-offs. One of these is an ‘equitable set-off’. It implies the rights of set- off arising from the same transaction instead of from different ones. Hence, the legal action takes the form of a single lawsuit instead of two different ones.

(ii) ‘Reference’ implies a case being sent to the High Court for its opinion in the form of an order. This is normally done in case the lower court needs guidance or when the case has the possibility of setting a precedent.



2007 - June [3] Distinguish between the following :

(v) ‘Decree’ 2008 and order’. (4 marks)

Answer ‘Decree’ means the declaration given by the court as a decision in a suit as to the rights of a litigating party. It can be a preliminary decree or a final one. They are issued to uphold the rights of a party to any property or to some legal recourse.

‘Order’ means a decision given by a civil court in a case; it is not a decree. It means i proclamation passed by the court that decides upon the legal relationship between parties and their inter se rights and liabilities.

A court’ judgement may be either by way of an order or a decree.

Descriptive Questions

1998 - Dec [4] Comment upon the following:

(ii) The doctrine of res sub-judice. (8 marks)

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Answer The doctrine of res sub-judice refers to a matter pending before a judge, or court, or not yet decided. It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to has not been reached yet. The doctrine or rule implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other court until it has been decided upon in the first court the matter was filed in. This doctrine helps in avoiding duplicity of cases, and prevents opposing judgements being reached in same matters (Section 10 of the Code of Civil Procedure, 1908).

1999 - Dec [3] (b) Point out the essentials of a judgement, decree and order. (8 marks)

Answer ‘Judgement’ means the decision given by a court. The grounds for it would already have been laid by the decree or the order on which the court bases its judgement. It is the final ruling given by a court with regard to a case. It helps in deciding the rights and obligations as they are supposed to be between the two litigating parties.



2001 - June [4] (a) Under what circumstances a review of judgement of a court is permissible? How is a review different from ‘revision’ and ‘appeal’? (8 marks)

Answer ‘Review’ means a reconsideration of the judgement given by a court in the form of a decree or an order. This is usually done when the person aggrieved with the judgement feels that the court has not given due consideration to the facts of the case, or when new facts are discovered, or when there is some obvious mistake in the records.


An ‘appeal’ is filed to a higher court if either the plaintiff of the defendant is not satisfied with the decision passed by the lower court. Appeals can lie from decrees or orders of the court. Sections 96 to 109 of the Code of Civil Procedure, 1906 cover appeals.

2001 - Dec [3] (b) Discuss the following:

(ii) Suit by or against minors. (4 marks)

Answer According to the Indian Majority Act, unless a particular personal law specifies otherwise, every person domiciled in India is deemed to have attained majority upon completion of 18 years of

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age. However, in case a guardian has been appointed or declared by any court of justice for a minor’s person or property, or both, before the age of 18 years, and in case of every minor the superintendence of whose property has been assumed by the Court of Wards, age of majority will be 21 years and not 18. The following things need to be kept in mind in case of suits by or against minors –

(i) If plaintiff is a minor –

— For such a person to be able to file a suit, it is essential that it be done through the ‘next friend’, who will institute all suits on behalf of the minor. Such a person is to be a major and legally capable of acting on behalf of the minor.

— If the interests of the next friend are contrary to those of the minor, he is automatically taken as a defendant, in case the minor is the plaintiff.

— Suits institutes without next friends of minors may be removed if the defendant applies for such removal.

(ii) If defendant is a minor –

— The court will provide a guardian for the person and his property, and to represent him in the suit.

— Such a person will hold the position until the culmination of the suit in the original or appellate court(s), and be removed earlier only by reason of death or incapacity.

In case of minor attaining majority while the suit is ongoing, he can choose to continue with the suit or to discontinue the proceedings by withdrawing the suit.

2002 - June [3] (a) To which classes of suits summary procedure applies? When can defendant apply leave to defend? On which grounds may the court grant or reject an application for leave to defend? What is the period for filing a summary suit? (8 marks)

Answer The summary procedure as specified under Order 37 of the Code of Civil Procedure, 1908 applies on suits negotiable instruments like bills of exchanges, promissory notes and hundies. This is to expedite the redressal process and to bar the defendant from stopping the plaintiff from taking any action against him.

When a summary process is initiated by the plaintiff by filing a suit, the defendant is sent a summons by the court. The defendant has to file a Memorandum of Appearance within ten days from the date of service of the summons. Upon examining his stand, the court shall either allow or reject the appearance. The rejection of the leave to defend might take place when the court is of the view that he does not have a valid defence or he is trying to waste court time using trivial defenses.

The limitation period for filing a summary suit is within one year of the debt becoming due.

2002 - Dec [4’| (a) Explain the provisions relating to reference, review and revision under the Code of Civil Procedure, 1908? (8 marks)

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Answer ‘Reference’ implies a case being sent to the High Court for its opinion in the form of an order. This is normally done in case the lower court needs guidance or when the case has the possibility of setting a precedent.



2004 - June [5] (a) Define ex parte decree’ and also mention the time limit and grounds for making an application to set aside an ex parte decree. (8 marks)

Answer According to Order 9, Rules 3 and 4 of the Code of Civil Procedure, 1908, if the plaintiff to a suit is present and the defendant is absent despite summons being served on him by the court, the court can decide the suit ex parte. However, the defendant may want to file an application for setting aside a decree passed ex parte. For this, he has to file an appeal for setting aside the decree with the relevant court. However, he shall have to prove that either the summons was not served properly or he had a sufficient cause for not being present on the date of the hearing. Upon being satisfied by his explanation, the court shall set aside the decree and continue with the proceedings.

2004 - June [8] (b) Explain the doctrine of constructive res judicata. (5 marks)

Answer The Doctrine of Constructive Res Judicata’ has been provided in Section 11 of the Code of Civil Pro- cedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The reasons are as below –





2004 - Dec [3] (b) Discuss the doctrine of res sub-judice. (5 marks)

Answer The doctrine of res sub-judice refers to a matter pending before a judge, or court, or not yet decided. It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to

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has not been reached yet. The doctrine or rule implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other court until it has been decided upon in the first court the matter was filed in. This doctrine helps in avoiding duplicity of cases, and prevents opposing judgements being reached in same matters (Section 10 of the Code of Civil Procedure, 1908).

2005 - June [4] (a) Discuss the doctrine of stay of suit under the Code of Civil Procedure, 1908. How far is it different with that of res judicata? Explain (8 marks)

Answer ‘Stay of suit’ implies the action taken under Section 10 of the Code of Civil Procedure, 1908. It is the Doctrine of res sub-judice. The doctrine of res sub-judice refers to a matter pending before a judge, or court, or not yet decided. It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to has not been reached yet. The doctrine or rule implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other court until it has been decided upon in the first court the matter was filed in. This doctrine helps in avoiding duplicity of cases, and prevents opposing judgements being reached in same matters (Section 10 of the Code of Civil Procedure, 1908). When such a case arises, generally a stay operates on the second or following suit.

‘The Doctrine of Constructive Res Judicata’ has been provided in Section 11 of the Code of Civil Pro- cedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The reasons are as below –





2007 - Dec [1] {C} Comment on the following :

(ii) A person cannot approbate and reprobate. (4 marks)

Answer ‘A person cannot approbate and reprobate.’ This statement is true, as one person cannot have two differing opinion on the same subject. It stems from a Latin maxim ‘quod approbo non reprobo’. This is similar to the Doctrine of Election, which says that a person cannot take just the benefit arising out of an instrument and not take the burden; he has to choose either to bear both, or to reject both. For example, a person who wants to enjoy a property willed to him can only enjoy it if he fulfils the condition that he has to transfer his own property to another. He has to either fulfil both conditions or leave his claim to that property. (Soba Ram vs. State of J&K and Another, Copper vs. Copper).

2007 - Dec [1] {C} Comment on the following :

(vi) No one shall be vexed twice for the same cause of action. (4 marks)

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Answer This is implicit in the Doctrine of Res Judicata. The Doctrine of Constructive Res Judicata’ has been provided in Section 11 of the Code of Civil Procedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The reasons are as below –


— There should be a limit to the number of cases filed in a court, i.e. vexatious cases should not be entertained,

— The same matter should not be used for wasting valuable court time repeatedly. The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s).

2007 - Dec [4] (a) Briefly discuss the powers of the court to grant temporary injunction. (4 marks)

Answer ‘Temporary injunctions’, according to Order XXXIX of the Code of Civil Procedure, 1908, means an order passed by a court to restrain someone from doing something that would result in alienation of property, or its destruction, or when the plaintiff is in danger of being dispossessed altogether. The plaintiff needs to establish to the satisfaction of the court that the losses suffered by him would be irreversible, and of such a nature as cannot be compensated, if the injunction is not granted. Such an injunction is for a short duration of time, normally for the time taken by the court to reach a final decision. It is issued after the suit has been filed and when it remains pending. A prima facie case and balance of convenience in the plaintiff’s favor are essential to get a temporary injunction issued.

2008 - June [6] (b) Attempt the following :

(ii) All orders made by courts are not appealable under the Code of Civil Procedure, 1908. What are

the appealable orders under the Code of Civil Procedure, 1908 ? (4 marks)

Answer The Code of Civil Procedure, 1908 provides for an appeal against the following orders, under Sec- tion 104–

— An order for compensatory costs in respect of untrue or vexatious claims or defenses (Section 35A)

— An order for relief under Sections 91 and 92 of the Code of Civil Procedure, 1908, which cover public nuisances and other wrongful acts affecting the public and in the case of any suspected breach of any express or constructive trust of a charitable or religious nature.

— In any suit in which an arrest or attachment has been effected or a temporary injunction granted under Section 95, where the aggrieved feels that he has been arrested on insufficient grounds.

— An order under this Code inflicting a punishment of fine or arrest or detention, except where such arrest or detention is in execution of a decree.

Other than these, any other order that is expressly stated as such in the Code of Civil Procedure, 1908, can be appealed against.

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Practical Questions

1998 - Dec [8] (a) Anita residing in Delhi publishes in Calcutta statements defamatory of Babita of Mumbai. Babita wants to sue Anita in Calcutta. Advise Anita and Babita. (5 marks)

Answer Under Section 19 of the Code of Civil Procedure, 1908, a plaintiff can sue the defendant in the place where the defendant resides or the Court where the cause of action arose. Hence Babita can bring the action against Anita in Delhi, where she resides, or in Calcutta, where the defamatory statement was made.

1999 - June [7] (a) Ram and Shyam sell wheat for ` 10,000 to Sohan and Mohan. Sohan sells cloth worth ` 12,000 to Shyam. Sohan files a suit against Shyam for recovery of price of cloth. Shyam claims set off of the cost of wheat in this suit. Will he succeed? (5 marks)

Answer In this case, Ram and Shyam sell wheat worth ` 10000 to Sohan and Mohan. Sohan sells cloth worth `12000 to Shyam. Sohan then files for the recovery of his consideration for the cloth. Shyam wishes to set off the price of wheat against the price of the cloth. He will not succeed, as under Rule 6 of Order VIII of the Code of Civil Procedure, 1908, set off of claims is possible only when the parties to both claims are the same.

2000 - June [6] (a) X resides at Bombay, Y at Delhi and Z at Chennai. X, Y and Z being together at Calcutta, Y and Z make a joint promissory note payable on demand and deliver it to X. Where can X sue Y and Z for amount of the promissory note. (5 marks)

Answer According to Section 20 of the Code of Civil Procedure, 1908, in case of a dispute arising, the plaintiff can sue the defendants in a court within whose jurisdiction they reside or carry on business or work for gain. Alternatively, they can be sued in the place where the cause of action arose.

Hence, in this case, X can sue Y and Z at Delhi, Chennai or Calcutta.

2000 - Dec [6] (c) XY and Co. files a suit under Order XXXVII of the Code of Civil Procedure, 1908 for recovery of ` 50,000 which were given by it as loan to its employee Z against the promissory note executed by him in the Court of the District Judge. Z received the summons for judgement in the suit under Order XXXVII of the Code of Civil Procedure, 1908. Z files a written statement after 20 days of the receipt of summons in the said suit. The Court of District Judge ignores the written statement of Z and outright passes the judgement and decree for recovery of ` 50,000 with costs against Z. Examine the correctness of the procedure adopted by the Court of District Judge. (6 marks)

Answer Order XXXVII of the Code of Civil Procedure, 1908 covers the details for summary procedure. According to it, the defendant needs to file a Memorandum of Appearance within ten days of the service of summons on him. In this case, Z files a written statement after twenty days of the receipt of summons in the said suit. The District Judge ignores the statement and passes a judgement and

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decree for recovery of the entire sum plus cots against Z. The procedure adopted by the District Judge was entirely justified in the light of the statement given by Z coming after the required time set aside for leave to defend the suit. In such a situation, the judge is entitled to hear the suit ex parte and pass the necessary judgement.

2001 - June [5] (b) Amar files a suit against Binod for enhancement of rent. The court dismisses the suit holding that the rent is already too high. Binod now files a suit against Amar for reduction of rent and pleads that the previous decision that the rent is excessive will operate as res judicata. Is the plea valid? (5 marks)

Answer No, the suit is not maintainable as it is covered by the doctrine of ‘Constructive Res Judicata’ that is provided for in Section 11 of the Code of Civil Procedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The reasons are as below –



— The same matter should not be used for wasting valuable court time repeatedly. The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s). Since this is not the case here, the subsequent suit will not be maintained.

2001 - Dec [6] (c) Arjun who resides at Delhi entered into a contract with Bheem at Mumbai for sup- ply of certain goods at Kolkata where Bheem resides and carries on business. At the time of entering into contract, it was agreed upon between Arjun and Bheem that in case of any dispute regarding payment or delivery of goods arises, the suit will be filed only in Bangalore court. Bheem failed to make payment of goods. Arjun files a suit at Bangalore for recovery of money. Bheem alleges that Bangalore court has no jurisdiction to decide the suit. Is the plea of Bheem maintainable? (6 marks)

Answer Yes, Bheem’s plea that the Bangalore court has no jurisdiction in the suit is maintainable. The justifi- cation for this lies in Section 20 of the Code of Civil Procedure, 1908. It says that in case of a dispute arising, the plaintiff can sue the defendants in a court within whose jurisdiction they reside or carry on business or work for gain. Alternatively, they can be sued in the place where the cause of action arose, but in no third place. Hence, in this case, the suit can be filed in Kolkata or Mumbai but not at Delhi.

2002 - Dec [7] (a) Anand filed a tenancy application under the Tenancy Act. His earlier suit was not maintainable before the civil court in view of bar created under section 85 of the Tenancy Act. Whether the decision rendered by the civil court would operate as res judicata for deciding tenancy application under the Tenancy Act? (5 marks)

Answer No, the decision rendered by the civil court would not operate as res judicata as the earlier suit was not maintainable. 11 is covered by the doctrine of ‘Constructive Res Judicata’ that is provided for in

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Section 11 of the Code of Civil Procedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The requirements and reasons are as below –


— There should be a limit to the number of cases filed in a court, i.e. vexatious cases should riot be entertained.

— The same matter should not be used for wasting valuable court time repeatedly. The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s). Since this is not the case here, the subsequent suit will not be maintained.

2003 - June [8] (a) A cause of action arises between two parties Surendra and Mahendra. The courts at Meerut and Ghaziabad are competent to try the suit. But both the parties to the contract agree to vest the jurisdiction in the court at Meerut. Is such an agreement valid ? (5 marks)

Answer Section 20 of the Code of Civil Procedure, 1908 says that in case of a dispute arising, the plaintiff can sue the defendants in a court within whose jurisdiction they reside or carry on business or work for gain. Alternatively, they can be sued in the place where the cause of action arose, but in no third place. However, if more than one court is competent to try the suit, then the parties can decide by mutual agreement upon one court. This will normally happen when the cause of action lies in more than one court’s jurisdiction.

Hence, in this case, the agreement of the parties to vest the jurisdiction in the court of Meerut is valid.

2004 - June [8] (a) A suit was instituted by the plaintiff company alleging infringement by the defendant company by using trade name of biscuits and selling the same in the packing of identical design, etc., as that of plaintiff company. A subsequent suit was instituted in a different court by the defendant company against the plaintiff company with the similar allegations. Discuss the validity of the subsequent suit. (6 marks)

Answer The doctrine of res sub-judice refers to a matter pending before a judge, or court, or not yet decided. It is a matter under judicial consideration, meaning that a decision regarding the case it pertains to has not been reached yet. The doctrine or rule implies that if a matter is awaiting judicial proceedings and a decision may not be heard in any other court until it has been decided upon in the first court the matter was filed in. This doctrine helps in avoiding duplicity of cases, and prevents opposing judgements being reached in same matters (Section 10 of the Code of Civil Procedure, 1908).

The doctrine of ‘Constructive Res Judicata’ that is provided for in Section 11 of the Code of Civil Procedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit.

Since the parties are the same in both suits and the subject matter of both the suits is also same, the second suit would be res sub-judice, and it will be stayed until the first suit is decided. The judgement of the first suit will then be res judicata for the second one.

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2004 - Dec [6] (c) Aman filed a suit against Bhuvan for obtaining a house and land property of Cha- man on the ground that Chaman had bequeathed those properties to him by a will. But, Aman failed to prove the will and his suit was dismissed. Now, Aman files a fresh suit to get the properties of Cha- man on the ground that he is the only and nearest heir to Chaman. Will Aman succeed? (5 marks)

Answer A dismissal of a suit operates as res judicata for suits filed on the same matter between the same parties.

It is covered by the doctrine of ‘Constructive Res Judicata’ that is provided for in Section 11 of the Code of Civil Procedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The requirements and reasons are as below –




The basic requirement for applying this doctrine is that the matter that is at the core of the former suit should also be the main essence of the latter suit(s). Since this is not the case here, the subsequent suit will not be maintained and Aman will not succeed. (Mukunda Jana vs. Kanta Mandal)

2005 - Dec [8] (c) Anubhav owes ` 10,000 to the partnership firm of Bose and Chander. Bose dies leav- ing Chander surviving. Anubhav sues Chander for a debt of ` 15,000 due in his individual capacity. Can Chander set off the debt of ̀ 10,000? (6 marks)

Answer This is covered by the terms of set-off provided for in the Code of Civil Procedure, 1908. ‘Set off’ means a settlement where both the plaintiff and the defendant have some claims to be collected from each other. What one party owes to another might be used to discharge all or a part of the debt he is owed by the other party.

In this case, after the death of Bose, only Chander survives in the partnership firm, to which Anubhav owes ̀ 10000. Anubhav later on sues Chander for an individual debt of ` 15000. Since the situation fulfils all the demands of a valid set-off, it is permissible.

2006 - June [6] (b) Ajeet resides at Bhopal, Baljeet at Indore and Charanjeet at Lucknow. Ajeet, Baljeet and Charanjeet being together at Kolkata, Baljeet and Charanjeet make a joint promissory note payable on demand and deliver it to Ajeet. Where can Ajeet sue Baljeet and Charanjeet for the amount of the promissory note ? (5 marks)

Answer According to Section 20 of the Code of Civil Procedure, 1908, in case of a dispute arising, the plaintiff can sue the defendants in a court within whose jurisdiction they reside or carry on business or work for gain. Alternatively, they can be sued in the place where the cause of action arose.

Hence, in this case, Ajeet can sue Baljeet and Charanjeet at Indore, Lucknow or Kolkata.

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2006 - Dec [4] (a) ABC Ltd. is a pharmaceutical company having its corporate office in Mumbai. XYZ Ltd., another pharmaceutical company, is carrying on pharmaceutical business at Nagpur. XYZ Ltd. published an advertisement at Bangalore constituting infringement of the registered trade mark of ABC Ltd. ABC Ltd. intends to institute a suit for damages against XYZ Ltd. Advise where ABC Ltd. should institute the suit. (5 marks)

Answer According to Section 20 of the Code of Civil Procedure, 1908, in case of a dispute arising, the plaintiff can sue the defendants in a court within whose jurisdiction they reside or carry on business or’work for gain. Alternatively, they can be sued in the place where the cause of action arose.

Hence, ABC Ltd. can institute a suit against XYZ Ltd. at Nagpur or Barigalore.

2007 - June [8] (b) Avinash, residing in Delhi, requests his friend Bishnoy, residing in Lucknow, for a loan of ` 10 lakh. Bishnoy asks Avinash to come to Lucknow and collect the cheque for the said amount. Accordingly, Avinash collects the cheque at Lucknow. Avinash has failed to repay the loan. Bishnoy wants to institute a suit for the recovery of loan against Avinash. Mention the place where Bishnoy can file a suit against Avinash. Give reasons in support of your answer. (5 marks)

Answer According to Section 20 of the Code of Civil Procedure, 1908, in case of a dispute arising, the plaintiff can sue the defendants in a court within whose jurisdiction they reside or carry on business or work for gain. Alternatively, they can be sued in the place where the cause of action arose, in part or completely.

Bishnoy can, hence, sue Avinash in Lucknow, as the cause of action arose there. Moreover, Avinash carne to Lucknow to collect the loan amount, so he can be sued there.

2008 - June [7] (a) A suit was instituted by Rosy Pvt. Ltd. dealing in cosmetics alleging infringement by Sunder Pvt. Ltd. by using trade name ‘Monica’ and selling the same in wrappers and cartons of identical design and colour used by the plaintiff company. A subsequent suit was instituted in different court by the defendant company (Sunder Pvt. Ltd.) against the plaintiff company with the same allegation. Decide, whether the subsequent suit will be allowed to continue. Give reasons and support your answer with case law. (4 marks)

Answer A suit was instituted by Rosy Pvt. Ltd. dealing in cosmetics alleging infringement by Sunder Pvt. Ltd. by using trade name ‘Monica’ and selling the same in wrappers and cartons of identical design and colour used by the plaintiff company. A subsequent suit was instituted in different court by the defendant company (Sunder Pvt. Ltd.) against the plaintiff company with the same allegation.

This case is covered by the Doctrine of Res Judicata. ‘The Doctrine of Constructive Res Judicata’ has been provided in Section 11 of the Code of Civil Procedure, 1908. It prevents further suits being filed for a matter that is at the core of a former suit. The reasons are as below –


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— There should be a limit to the number of cases filed in a court, i.e. vexatious cases should not be

entertained.



Hence, in this case, the subsequent suit will not be allowed to continue. This was also observed in the case of Ramdas Nayak v. Union of India , where the court observed: It is a repetitive litigation on the very same issue coming up before the courts again and again in the grab of public interest litigation. It is high time to put an end to the same.

2008 - June [8] (c) A transport company has its head office at Mumbai and branch offices at Allahabad, Patna and Bhopal. A dispute cropped up between Sameer and the company in respect of a transaction through Allahabad office. Sameer files a suit in respect of this dispute against the company in a court at Patna. How will the court decide? (5 marks)

Answer According to Explanation II appended to Section 20 of the Code of Civil Procedure, “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”.

In this view of the given facts of the case as well as the legal provisions mentioned above, the court at Patna has no jurisdiction to try the suit as the cause of action in respect of the transaction has not arisen through Patna Branch Office.

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civil procedure code,1908

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