CODE OF CIVIL PROCEDURE , 1908 TUTORIALS

FACULTY OF LAW

MADE BY : PEEYUSH KUMAR B.A.LLB. (H) 4TH YEAR ROLL NUMBER -42 JAMIA MILLIA ISLAMIA

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TUTORIALS
I. How do you interpret a family in the light of Order V Rule 15? (a) Can a niece living for two years with the defendants family be served summons? (b) A daughter of a friend who is staying with the defendant? Solution: In order to attract the mischief of Order V Rule 15, the first task is to look into the essential pre-conditions which need to be satisfied:(i) The defendant should be absent from his residence at the time when the summon was sought to be affected on him. (ii) No likelihood of his being found at his residence within a reasonable time. (iii) No agent is empowered to accept service of the summon on his behalf. The process server can serve the summon to any adult member of the family, whether male or female. The term family for the purpose of this provision cannot be interpreted in an objective manner. It should be seen whether the person concerned has blood relation with the family, since how long he/she has been residing with the family, what are the per sons chances of leaving the residence of the defendant, etc. These are some of the factors which are necessary to be kept in mind in order to determine the scope of a family. (a) In the given situation, the niece can be considered as a member of the family only if she is residing with the defendants family for a considerable period of time. It should be seen that although a niece would not qualify to be a part of a nuclear family, but we can see that she has been staying with the defendants family for th e past two years, hence, she can qualify for being a member of the defendants family. It should be noted here that the time period of residence does not form an objective criteria for determining the qualification for being a family member. It is only to ascertain as to whether the person has actually formed an important and integral part of the family. In addition to this, a niece is in a blood relation with the defendants family. Thus, according to my opinion, in the present case, the niece would qualify to be a part of the family and the summons can be served upon her.
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(b) The second scenario is that of the friends daughter staying with the defendants family. In the present situation, she is merely residing with the defendants family and cannot be considered as being a part of it. There is no blood relation between the friends daughter and the defendants family. The explanation to Order V Rule 15 should also be referred to. A servant has been specifically excluded from the purview of the family even though he might be staying with the family for a considerable period of time. This has been done keeping in mind that the servant does not have a blood relation with the family and he may leave the residence of the family at any point of time. Using the s ame analogy, a friends daughter cannot be considered as a part of the family and thus the summons cannot be served upon her.

II . The plaintiff has claimed that the defendant be directed to pay a sum of Rs. 50,000/as arrears of rent as also the defendant should be directed to vacate the premises. In the Written Statement the defendant claimed that he is the authorized tenant of the plaintiff and has been regularly paying the rent. His claim is that no rent is due nor can he be evicted from the tenanted premises. Subsequently, the defendant moves an application under Order 6 Rule 17 for amendment of the written statement to the effect that he is the owner of the premises and not the tenant. As such his claim is in anticipated amendment is that a) Is the owner of the premises in question and b) As a consequence thereof no rent is due. Decide if such an amendment is permissible under Order 6 Rule 17 of CPC. Solution: The provision to amend the pleadings is given under Order VI Rule 17 of the Code of Civil Procedure. It states that The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:

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Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial. The object of the Rule is that the courts should try merits of the cases that come before them and should consequently allow all amendments necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other parties. The court must consider following principles while allowing a leave to amend the pleadings: 1. Whether amendment is necessary to determine the real controversy between the parties. 2. The proposed amendment should not introduce a totally different, new and inconsistent case or changes the fundamental character of the suit or defence. 1 3. Whether the pleader was able to amend the pleadings diligently before commencement of the proceedings. 4. Proposed amendment should not cause prejudice to the other side which cannot be compensated by means of costs. Thus, where the amendment is sought to avoid multiplicity of suits, or where parties in the plaint are wrongly described, or where some properties are omitted from the plaint by inadvertence, or where there is a mistake in statement of the cause of action, the amendment should be allowed. In light of these principles, the amendment sought by the defendant shall not be allowed by the court. Firstly, the proposed amendment introduces an inconsistent and an entirely new case, since prior to the amendment the case concerned recovery of arrears of rent and vacating of the premises. But after the amendment the case becomes that of ownership of the property and as a result of which the defendant will not pay rent. Secondly, the said amendment is hit by the proviso to Rule 17. As given in the facts that prior to the amendment the defendant accepted himself to be the tenant of plaintiff, but claim to be owner of the property in the amendment. If he really is the owner, then he could diligently have inserted
1

State of A.P. v. Pioneer Builders, AIR 2007 SC 113.

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the fact in the original suit, because the same is not of such a nature that one could not have raised in spite of due diligence. Therefore, the amendment proposed by the defendant cannot be allowed by the court under R. 17 of O. VI. III. A files a suit against Mr. X for declaration that Black Acre should be decreed as property as it is vested in A. Mr. X (the defendant) contacts you and intimates that this controversy has already been adjudicated by a court of competent jurisdiction. In fact the present suit in a sense is a subsequent suit arising from the same cause of action which has been earlier conclusively determined by the Supreme Court. On what provision of law, would you take the preliminary defence about this maintainability of subsequent litigation? Essential components of the said law should be comprehensively explained.

Solution: I would like to take rejection of plaint as a preliminary defence under Order VII Rule 11. According to Order VII Rule 11, a plaint could be rejected on the following grounds: (a) where the plaint does not disclose the cause of action (b) where relief claimed is undervalued (c) where plaint is insufficiently stamped (d) where suit is barred by law (e) where plaint is not in duplicate (f) where the plaintiff fails to comply with the provisions of rule 9 The present case falls under condition (d) of the rule, i.e. , where the suit is barred by law. According to Section 11 of the Code, no court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim,
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litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court. This is known as doctrine of res judicata. In a nutshell, it means that once a matter is conclusively decided by a competent court, no party can be permitted to reopen it in a subsequent litigation. Since, in the present case the matter has been already decided conclusively by the Supreme Court, the subsequent suit comprising of the same cause of action will not be allowed.

IV. A suit is to be filed for recovery of a liquidated demand of money raised on a written contract. You and your friend disagree on the process and procedure to be followed for a summary adjudication of the rights of the parties. Convince your friend that provision of Order XXXVII provide for a speedy remedy in civil law in adjudication in disputes.

Solution: Order 37 provides summary procedure in suits based on negotiable instruments or where the plaintiff seeks to recover debt or liquidated amount. The essence of summary suits is that the defendant is not, as in an ordinary suit, entitled as of right to defend the suits. He must apply for leave to defend within the stipulated period of ten days. Such leave will be granted only if the affidavit filed by the defendant discloses such facts as will make it incumbent upon the plaintiff to prove consideration or such other facts as the court may deem sufficient. The provisions of Order 37 are merely rules of procedure. They do not alter the nature of the suit or jurisdiction of courts.2 The object underlying the summary procedure is to prevent unreasonable obstruction by the defendant who has no defence and to assist expeditious disposal of cases.3 It is to ensure that the defendant does not unnecessarily prolong the litigation and prevent the plaintiff from obtaining a decree by raising untenable and frivolous defences in a class of cases where speedy decisions are desirable in the interests of commercial transactions.
2 3

Prayag Deb v. Rama Roy, AIR 1977 Cal 1 (FB) Milkhiram India (P) Ltd. v. Chamanlal Bros., AIR 1965 SC 1698: (1966) 68 Bom LR 36

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The discretionary power conferred upon the court under Order 37 should be exercised judicially, judiciously and on well-settled principles of natural justice. Wherever defence raises a triable issue, leave should be granted unconditionally. If it is not done, leave may become illusory.4 Care should be taken to see that the object of the rule to assist the expeditious disposal should not be defeated. But it also must be ensured that real and genuine triable issues are not shut out by unduly severe order as to deposit. The test whether leave to defend should be granted or not is to see whether the defence raises a real, honest and bona fide dispute and raises a triable issue or not. If the court is satisfied that the defence has raised a triable issue or a fair dispute has arisen, leave to defend should not be refused. Again, it is hazardous and unfair to pronounce a categorical opinion on such matter before the evidence is taken. It is only in cases where the defence is patently dishonest or so unreasonable that it could not reasonably be expected to succeed that the exercise of discretion to grant unconditional leave can be refused. V. An applicant to a course in a university failed in the entrance examination and thus was unable to secure admission in the course of his choice. Subsequently, he challenged the entire process of admission as being vitiated by the equality clause of Article 14 of the Constitution. During the challenge being adjudicated by the writ Court he moves an application for interim injunction to the effect that the university be directed to keep one seat vacated till the final disposal of the matter. Decide as to whether such an interim relief can be validly granted with specific references to the essential parameters governing the law of interim injunctions. 1. Balance of convenience 2. Irreparable loss 3. Good prima facie case

Larsen & Toubro Ltd. v. Arun Kumar, (2000) 4 JT 556

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Solution: The power to grant a temporary injunction is at the discretion of the court. Generally before granting the injunction, the court must be satisfied about the following aspects: A. Prima facie case: the first rule is that the applicant must make out a prima facie case in support of the right claimed by him. The court must be satisfied that there is a bona fide dispute raised by the applicant, that there is a strong case for a trial which needs investigation and a decision on merits and on the facts before the court there is a probability of the applicant being entitled to the relief claimed by him. B. Irreparable loss or injury: The applicant must further satisfy the court that he will suffer irreparable injury if the temporary injunction is not granted. An injury will be regarded as irreparable where there exists no certain pecuniary standard for measuring damages. C. Balance of convenience: The third condition for granting temporary injunction is that the balance of convenience lies in the favour of the applicant. It means that the court must be satisfied that the comparative mischief or inconvenience is likely to be caused to the applicant by refusing the injunction will be greater than that which is likely to be caused to the opposite party by granting it. The court must maintain the status quo while granting the temporary injunction and must see whether the same would disturb the present situation of the controversy. In light of the above principles, the court cannot grant temporary injunction to the applicant. The applicant does not have a good prima facie case, since there is no enough evidence that the case may be turned into his favour as he failed the examination due to lack of his competency. If the injunction is not granted he cannot not suffer an irreparable loss because if he wins the case he will get his admission in the university but if not then the seat will unnecessarily be vacated pending the adjudication, moreover he can get admission in any other university to further his aim. Finally, the balance of convenience does not lie in his favour because this will disturb the status quo of the case. Since the seats of the institution are full, they cannot simply vacate a seat for the applicant pending adjudication of the case.

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VI. Discuss the following: (a) Where the defendant has been proceeded ex-parte but wants to participate in the proceedings on the subsequent date of hearing. (b) Where the defendant has been proceeded ex parte and moves an application under Order IX Rule 7 for setting aside ex parte order. Assigning good cause for his non appearance and wanting that the clock cap should be put back, so as to enable him to defend the case if he had appeared earlier. Solution: (a) The provision with regard to the ex parte proceedings, i.e., when only plaintiff appears, is given under Order IX Rules 6 and 10. If the service of the summons is proved by the plaintiff the court may proceed ex parte against the defendant and may pass a decree in favour of plaintiff, if the plaintiff proves his case. This provision is, however, confined to the first hearing and does not per se apply to subsequent hearings.5 In such a case, the defendant is not penalised in the sense of being forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial; only he cannot claim to be relegated to the position that he occupied at the commencement of the trial. The underlying principle is that until the suit is finally decided, the defendant has a right to come in and defend the suit. (b) According to Order IX Rule 7 where the court has adjourned the hearings of the suit ex parte, and the defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the court directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day fixed for his appearance. In deciding whether a suit dismissed for default be restored, what has really to be considered is whether the defendant was really trying to appear on the day fixed. If sufficient cause is shown by the defendant for his non-appearance, reopening is mandatory, but when sufficient cause is not shown, it is directory.6

5 6

Sangram Singh v. Election Tribunal, AIR 1955 SC 425. P.K.P.R.M. Raman Chettyar v. K.A.P. Arunachalam Chettyar, AIR 1936 Rang 335

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What is sufficient cause depends upon facts and circumstances of each case and liberal and generous construction should be adopted to advance the cause of justice and restoration should not ordinarily be denied.7 In that case, the defendant might have the earlier proceedings recalled, set the clock back, and have the suit heard in his presence.

VII. An ex parte decree had been passed against the defendant in favour of the plaintiff. The defendant moves an application under Order IX Rule 13 for setting aside ex parte decree on the ground he had not been validly served in accordance with Order V. Decide whether the court would be competent to set aside ex parte decree.

Solution: An ex parte decree is a decree passed in the absence of the defendant. Where the plaintiff appears and the defendant does not appear when the suit is called out for hearing and if the defendant is duly served, the court may hear the suit ex parte and pass a decree against him. Such a decree is neither null and void nor inoperative but is merely voidable and unless and until it is annulled on legal and valid grounds, it is proper, lawful, operative and enforceable and it has all the force of a valid decree. The defendant against whom ex parte decree has been passed may apply for setting it aside. Where there are two or more defendants, any one or more of them may also make such application. This rule requires an application by the defendant to set aside an ex parte decree passed against him if there exists sufficient grounds for it. If the defendant satisfies the court that (i) the summons was not duly served; or (ii) he was prevented by any sufficient cause from appearing when the suit was called out for hearing, the court will set aside the decree passed against him and appoint a day for proceeding with the suit.

Lakshmi Commercial Bank Ltd. v. Hans Raj, AIR 1981 P&H 228

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As provided in Rule 6, the suit may proceed against the defendant only when it is proved by the plaintiff to the satisfaction of the court that the defendant did not appear even thought the summons was duly served. In that case, an ex parte decree may be passed against him. Therefore, if the defendant satisfies the court that the summons was not duly served upon him, the court must set aside the ex parte decree passed against him.

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