Essentials of Plaint and Provisions Regarding Return or Rejection of a Plaint Section

26 of CPC

Section 26 of C.P.C. stipulates that every suit shall be instituted by the presentation of a plaint
or in such other manner as may be prescribed.

Order VII: Rule 1, prescribes the essentials or particulars of the plaint

A plaint is a statement of claim, a document by presentation of which the suit is instituted. Its
object is to state the grounds upon which the assistance of the Court is sought by the plaintiff.

The essentials or particulars of plaint are (Order VII: Rule 1)

(a) The name of the plaintiff,

(b) The name, description and place of residence of the plaintiff,

(c) The name, description and place of residence of the defendant,

(d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a statement
to that effect, Judicial Officers Examination Course Material

(e) The facts constituting the cause of action and when it arose,

(f) The facts showing that the Court has jurisdiction,

(g) The relief which the plaintiff claims,

(h) Where the plaintiff has allowed to set off or relinquished a portion of his claim, the
amount so allowed or relinquished, and

(i) A statement of the value of the subject matter of the suit for the purpose of jurisdiction and
of Court fee.

Order VII: Rule 2, In Money Suits:

Where the plaintiff seeks the recovery of money, the plaint shall state the precise amount
claimed.

If the suit is for account of mesne profits or for movables in the possession of the defendant
or for debts which cannot be determined, the approximate amount or value should be stated.

Order VII: Rule 3, where the subject matter of the suit is immovable property:
The plaint should contain a description of the property sufficient to identify it by indicating
boundaries; survey numbers etc.

Order VII: Rule 4, when plaintiff sues as representative:

Where the plaintiff sues in a representative character the plaint shall show not only that he
has an actual existing interest in the subject matter, but that he has taken the steps (if any)
necessary to enable him to institute a suit concerning it.

Order VII: Rule 5, Defendants interest and Liability to be shown:

The plaint should state the interest and liability of the defendant in the subject matter of the
suit.

Order VII: Rule 6, grounds of Exemption from Limitation Law:

If the suit is time barred, the plaint should state the ground upon which the exemption from
the law of limitation is claimed.

Plaint under Section 26, Order VII of C.P.C. for Specific Performance:
3. Facts Order VII, Rule 1(E):
6. Cause of Action Order VII, Rule 1(e):
7. Jurisdiction Order VII, Rule 1(f):
9. Court Fee Order VII, Rule 1(i):
10. Relief Order VII, Rule 1(g):

Rule 10(1):
Where at any stage of the suit, the Court finds that it has no jurisdiction, either territorial or
pecuniary or with regard to the subject matter of the suit, it will return the plaint to be
presented to the proper Court in which the suit ought to have been filed.

Rule 10(2):
The Judge returning the plaint should make endorsement on the plaint regarding:

(i) the date of presentation in his Court,

(ii) the name of the party presenting the plaint,

(iii) the reasons for returning the plaint.

Rule 10-A:
Lays down the procedure to be followed by the Court before the plaint is ordered to be
returned, to be presented to the proper Court. The procedure to be followed is :

1. Where, in any suit, after the defendant has appeared, the Court is of the opinion that the
plaint should be returned, he shall, before doing so, intimate its decision to the plaintiff.

2. Where an intimation is given to the plaintiff under sub-rule (1) the plaintiff may make an
application to the Court-

(a) Specifying the Court, in which he proposes to present the plaint after its return,

(b) Praying that the Court may fix a date for the appearance of the parties in the Court, and

(c) Requesting that the notice of the date so fixed may be given to him and to the defendant.

3. Where an application is made by the plaintiff under sub-rule (2) the Court shall, before
returning the plaint and notwithstanding that the order for return of the plaint was made by it
on the ground that it has no jurisdiction to try the suit-

(a) Fix a date for the appearance of the parties in the Court in which the plaint is proposed to
be presented, and

(b) Give to the plaintiff and to the defendant notice of such date for appearance.

4. Where the notice of the date for appearance is given under sub-rule

(a) It shall not be necessary for the Court in which the plaint summons for appearance in the
suit, unless that Court, for reasons to be recorded, otherwise direct, and

(b) The said notice shall be deemed to be summons for the appearance of the defendant in the
Court in which the plaint is presented on the date so fixed by the Court by which the plaint
was returned.

5. Where the application made by the plaintiff under sub-rule (2) is allowed by the Court, the
plaintiff shall not be entitled to appeal against the order returning the plaint.

Rule 10-B: 1 Where on an appeal against an order for the return of plaint, the Court hearing
the appeal confirms such order, the Court of appeal may, if the plaintiff by an application so
desires, while returning the plaint, direct plaintiff to file the plaint subject to Limitation Act,
1963 in the Court in which the suit should have been instituted, and fix a date for the
appearance of the parties in the Court in which the plaint is directed to be filed and when the
date is so fixed, it shall not be necessary for the Court in which the plaint is filed to serve the
defendant with the summons for appearance in the suit, unless that Court in which the plaint
is filed, for reasons to be recorded, otherwise directs.
2. The direction made by the Court under sub-rule (1) shall be without any prejudice to the
rights of the parties to question the jurisdiction of the Court, in which the plaint is filed, to try
the suit.

Rejection of Plaint:
Rule 11 of Order 7 of C.P.C. deals with rejection of plaint. Rule 11 says that the plaint will be
rejected in the following cases-

(a) Where it does not is close a cause of action:

If the plaint filed by the plaintiff does not disclose any cause of action, the Court will reject it,
but in order to reject the plaint on this ground, the Court must look at the plaint and at nothing
else.

The power to reject a plaint on this ground should be exercised only if the Court comes to the
conclusion that even if all the allegation set out in the plaint are proved, the plaintiff would
not be entitled to any relief. In that case, the Court will reject the plaint without issuing
summons to the defendants.

The Supreme Court in Arivandanam vs. Satyapal held that the reading of the plaint should be
meaningful and not formal.

Again, the Supreme Court held in Rooplal vs. Gill, that the plaint can be rejected as a whole
if it does not disclose cause of action. A part of it cannot be rejected.

(b) Where the relief claimed is under valued:

Where the relic? Claimed by the plaintiff is under valued and the valuation is not corrected
within the time fixed or extended by the Court, the plaint will be rejected.

The Supreme Court in MeenakshiSundaram vs. Venkatachalam held that in the considering
the question whether the suit is properly valued or not, the Court must confine its attention to
the plaint only and should not look at the other circumstances which may subsequently
influence the judgement of the Court as to the true value of the relief prayed for.

(c) Where it is insufficiently stamped:

Sometimes the relief claimed by the plaintiff is properly valued, but the plaint is written upon
a paper insufficiently stamped and the plaintiff fails to pay the requisite Court fees within the
time fixed or extended by the Court. In that case, the plaint will be rejected.
However, if the requisite Court fee is paid within the time extended by the Court, the suit or
appeal must be treated as instituted from the date of presentation of plaint or memorandum of
appeal for the purpose of limitation as well as payment of Court fee (Sec. 149 C.P.C.).

If the plaintiff cannot pay the Court fee, Order 33 provides for continuing the suit as a
indigent person.

(d) Where the Suit appears to be barred by any Law:

Where the suit appears from the statements in the plaint to be barred by any law, the Court
will reject the plaint. For instance, wherein a suit against the Government, the plaint does not
state that the notice as required by Section 80 of C.P.C. has been given the plaint will be
rejected under this clause.

In B.R. Sinha vs. State of Madhya Pradesh the Supreme Court held that where waiver of such
notice is pleaded, the Court cannot reject the plaint without giving the plaintiff an opportunity
to establish that fact.

(e) Where the plaint is not filed in duplicate.

(f) Where the plaintiff fails to complain sub-rule (2) of Rule 9.

(g) Where the plaintiff fails to complain sub-rule (3) of Rule 9A.

Rule 12 Procedures on Rejection of Plaint:

Where a plaint is rejected by the Court, the Judge will pass the order to that effect and will
record the reason for it.

Rule 13 Effect of Rejection of Plaint:

If the plaint is rejected on any of the above grounds, the plaintiff is not thereby precluded
from presenting a fresh plaint in respect of the same cause of action.

Any order rejecting a plaint is a decree and therefore, is appealable.

Legal Provisions of Order VII of Code of Civil Procedure, 1908 (C.P.C.), India Plaint

Relief:
Every plaint shall state specifically the relief which the plaintiff claims either simply or
in the alternative, and it shall not be necessary to ask for general or other relief which
may always be given as the court may think just to the same extent as if it had been
asked for. And the same rule shall apply to any relief claimed by the defendant in his
written statement. (Order VII, Rule 7).
In a suit for injunction restraining the defendants from flowing water through a certain
plot and the courts below directing restoration of position to pre-existing state of
affairs, the mere mistake to specify the number of the plot is not by itself sufficient to
disentitle the plaintiffs to relief which they were otherwise entitled to.

Ordinarily, a suit is tried in all its stages on cause of action as it existed on the date of
the institution, but the court can look to subsequent events when the relief claimed
originally has (1) by reason of subsequent change of circumstances become
inappropriate, or (2) where it is necessary to take notice of the changed
circumstances to shorten litigation, or (3) to do complete justice between the parties.

Procedure on admitting plaint:

Where the Court orders that the summons be served on the defendants in the
manner provided in rule 9 of Order V, it will direct the plaintiff to present as many
copies of the plaint on plain paper as there are defendants within seven days from
the date of such order along with requisite fee for service of summons on the
defendants], (Order VII, Rule 9).

The plaintiff shall within the time fixed by the court pay the requisite fee for the
service of summons on the defendants. [Order VII, Rule 9(1-A)].

Return of plaint:
Rule 10 of Order VII provides for the return of plaint in all cases where a court is
unable to entertain it for want of jurisdiction territorial, pecuniary or other causes. If
the court is satisfied that it has no jurisdiction to entertain a suit, it is its duty to give
effect to that on its own initiative.

To quote rule 10 of Order VIISubject to the provisions of Rule 10-A, the plaint
shall at any stage of the suit be returned to be presented to the court in which the
suit should have been instituted On returning a plaint the judge shall endorse
thereon the date of its presentation and return, the name of the party presenting it,
and a brief statement of the reasons for returning it.

Powers of Appellate or Revisional Court to Return Plaint:

The power of directing the plaint to be returned for presentation before appropriate
court can be exercised by the court of appeal or revision also if it finds that the trial
court lacked jurisdiction to entertain the suit.

Explanation to sub-rule (1) of rule 10 clearly provides that a court of appeal or

revision may direct, after setting aside the decree passed in a suit, the return of the
plaint under the said sub-rule. Obviously, once it is found by the appellate court that
the trial court lacked jurisdiction to entertain the suit any further adjudication upon
merit of other issues by it would be without jurisdiction and nullity.

Propriety of dismissal of suit:

The Division Bench was totally wrong in passing an order of dismissal of the suit
itself when it had arrived at the conclusion that the Bombay Court had no jurisdiction
to try the suit. The only course to be adopted in such circumstances was to return
the plaint for presentation to the proper court and not to dismiss the suit.

Under rule 10-A, inserted by the Amendment Act, 1976, the court has power to fix a
date for the appearance of the parties in the court where the plaint is to be filed after
its return.

If the court has no jurisdiction the proper order is to return the plaint and not dismiss
it. The plaint may be returned even at the stage of argument. An appellate court can
also return the plaint. Where a plaint is returned by the trial court for presentation to
the proper court to which the plaint is presented thereafter, it is bound to give credit
for the fee levied by the court that returned the plaint.

An order returning a plaint to be presented to the proper court, except where the
procedure specified in rule 10-A of Order VII has been followed, is appealable under
Order XLIII, Rule 1, but a second appeal does not lie.

Nature of Returned PlaintA Fresh Plaint

When a plaint is returned for presentation to proper court, it is treated to be as fresh
plaint. Amendment of such plaint can be made without seeking permission for
amendment. Such altered plaint cannot be dismissed on the ground that it contained
averments not made in the original plaint.

Rejection of plaint:
The plaint shall be rejected in the following cases:

(a) Where it does not disclose a cause of action;

(b) Where the relief claimed is under-valued, and the plaintiff, on being required by
the court to correct the valuation within a time to be fixed by the court, fails to do so;
(c) Where the relief claimed is properly valued, but the plaint is written upon paper
insufficiently stamped, and the plaintiff on being required by the court to supply the
requisite stamp-paper within a time to be fixed by the court, fails to do so; and

(d) Where the suit appears from the statement in the plaint to be barred by any law.
(Order VII, Rule 11).

[(e) Where it is not filed in duplicate.]

[(f) Where the plaintiff fails to comply with the provisions of rule 9.] (Order IX Rule
11).

The High Court of Calcutta has added another ground for rejection of /- the plaint,
viz., the failure to file as many copies on plain paper of the plaint as there are
defendants and draft forms of summons and fees for the service thereof.

The rejection of a plaint on any of the grounds mentioned above shall not of its own
force preclude the plaintiff from presenting a fresh plaint in respect of the same
cause of action. (Order VII, Rule 13). A fresh suit can be instituted provided it is not
barred.

[A document which ought to be produced in Court by the plaintiff when the plaint is
presented, or to be entered in the list to be added or annexed to the plaint but is not
produced or entered accordingly, shall not, without the leave of the Court, be
received in evidence on his behalf at the hearing of the suit], [Order VII Rule 9 (3)]

Non-Disclosure of Cause of Action:

Cause of action can be culled out on a conjoint reading of all paragraphs of plaint.

The Bank in suit for recovery an letters of credit based action on fraud or
misrepresentation alleging non-supply of goods by the sellers to the buyers. There
was no allegation of presentation of fraudulent or forged documents.

There may be variety of reasons for non-supply of goods and by using words fraud.
Objections under Order VII, Rule 11 cannot be avoided. The plaint was liable to be
rejected under Order VII, Rule 11(a) as disclosing no cause of action based on fraud
or misrepresentation.

Mere Technicality affecting public Interest-effect:

Where suits are instituted or defended on behalf of public corporations like Bank,
public interest should not be allowed to be defeated on a mere technicality.

Procedural defects not going to the root of the matter should not be allowed to defeat
a just cause. It is not proper to dismiss the suit filed by bank for recovery of loan on
the ground of plaint not being signed and verified by competent person.

The Court seeing the conduct of trial and other evidence and circumstances might
come to the conclusion that the Bank had ratified the act of signing of pleading by its
officer. As Bank can expressly or impliedly ratify such acts of its officer.

When Application for rejection of Plaint can be moved:

Application under Order VII, Rule 11 for rejection of plaint can be entertained even
after issues have been framed in the suit.

Validity of rejection of plaint:

Where main relief in plaint was relating to continuance of tenancy under trust. Other
reliefs regarding enquiry into affairs of trust. Rejection of plaint on ground that Civil
Court had no jurisdiction was liable to be set aside. Adjudication in suit was directed
to be restricted to question of tenancy only. Plaintiff was permitted to make
application for relinquishing other reliefs.

SUMMONS
A summon is a legal document that is issued by a Court on a person involved
in a legal proceeding. When a legal action is taken against a person or when
any person is required to appear in the court as a witness in a proceeding, to
call upon such person and ensure his presence on the given date of the
proceeding, summons are served.

A summon is served when a suit has been initiated by the plaintiff against the
defendant, the court directs to issue summons to the defendant as this
ensures a fair trial. If the summons is not duly served, then no action can be
taken against the defendant.

If on serving of the summon and the person against whom it had been issued
does not appear in the court, then this will be taken as a Contempt of Court
and shall be punished accordingly.

The summons is the descendant of the writ of the common law.

Section 27 and Order 5 of the Code of Civil Procedure deals with the service
of summons to the defendant and in the Code of Criminal Procedure,
from section 61 to 69 deals with the topic of summons.

27. Summons to defendants .- Where a suit has been duly instituted, a summons may be issued to
the defendant to appear and answer the claim and may be served in manner prescribed on such day
not beyond thirty days from date of the institution of the suit..

The Different Modes of Effecting Service of Summons on a Defendant

(C.P.C 1908, India)

The prescribed modes of service of summons are as follows:

1. Personal or Direct Service:

ADVERTISEMENTS:

Wherever it is practicable, service should be made on the defendant in person,

unless he has an agent empowered to accept service in which case service on such
agent shall be sufficient. Where there are two or more defendants, service should be
made on each defendant. (O. 5, rr. 10, 11).

Where the defendant is absent from his residence at the time when the service of
summons is sought to be effected on him at his residence and there is no likelihood
of his being found at the residence within a reasonable time and he has no agent
empowered to accept service of the summons on his behalf, service may be made
on any adult member or his family, whether male or female, but not a servant. [O. 5,
R. 15].

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In a suit for immovable property service may be made on any agent in charge of the
property if the service cannot be made on the defendant personally and the
defendant has no agent empowered to accept the service.

Such personal service is also called direct service because service is made by
delivering a copy thereof to the defendant personally, or to an agent or other person
on his behalf, and the signature of the person to whom the copy is so delivered is
obtained to an acknowledgment of service endorsed on the original summons.
2. Service by affixing a copy of summons on defendants house
without an order of the court:

ADVERTISEMENTS:

(a) Where the defendant or his agent or in their absence an adult member of the
family refuses to sign the acknowledgment, or

(b) where the serving officer, after using due diligence, cannot find the defendant
who is absent from his residence at the time when service is sought to be effected
on him at his residence and within a reasonable time and there is no such other
person on whom service can be effected, the serving officer shall affix a copy of the
summons on the outer door or some other conspicuous part of the house in which
the defendant ordinarily resides or carries on business or personally works for gain,
and then shall return the original to the court from which it was issued, with a report
endorsed thereon stating that he has so affixed the copy, the circumstances under
which he did so, and the name and address of the person (if any) by whom the
house was identified and in whose presence the copy was affixed. If the court is
satisfied it declares the service to have been duly effected. (O. 5, R. 17).

3. Service by registered post in addition to personal service:

The court shall, in addition to, and simultaneously with the issue of summons for
service also direct the summons to be served by registered post, acknowledgment
due, addressed to the defendant, or his agent empowered to accept the service, at
the place where the defendant, or his agent, actually and voluntarily resides or
carries on business or personally works for gain. The court, however, shall not issue
a summons for service by registered post, where, in the circumstances of the case, it
considers it unnecessary.

When an acknowledgment purporting to be signed by the defendant or his agent is

received by the court, or the postal article containing the summons is received back
by the court with an endorsement purporting to have been made by a postal
employee to the effect that the defendant or his agent had refused to take delivery of
the postal article containing the summons, when tendered to him, the court Issuing
the summons shall declare that the summons had been duly served on the
defendant: provided that where the summons was properly addressed, prepaid and
duly sent by registered post, acknowledgment due, the declaration referred to in this
sub-rule shall be made notwithstanding the fact that the acknowledgment having
been lost or mislaid, or for any other reason, has not been received by the court
within thirty days from the date of the issue of the summons. (O. 5, R. 19-A).

4. Delivery of summons by Court. (O. V, R. 9):

ADVERTISEMENTS:

(1) Where the defendant resides within the jurisdiction of the court in which the suit is
instituted, or has an agent resident within the jurisdiction who is empowered to
accept the service of the summons, the summons 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 the court.

(2) The proper officer may be an officer of a court other than that in which the suit is
instituted and, where he is such an officer, the summons may be sent to him in such
manner as the court may direct.

(3) The service of summons may be made by delivering or transmitting a copy

thereof by registered post acknowledgment due, addressed to the defendant or his
agent empowered to accept the service or by speed post or by such courier services
as are approved by the High Court or by the court referred to in sub-rule (1) or by
any other means of transmission of documents including fax message or electronic
mail service provided by the rules made by the High Court :

Provided that the service of summons under this sub-rule shall be made at the
expenses of the plaintiff.

(4) Notwithstanding anything contained in sub-rule (1), where a defendant resides

outside the jurisdiction of the court in which the suit is instituted, and the court directs
that the service of summons on that defendant may be made by such mode of
service of summons as is referred to in sub-rule (3), (except by registered post
acknowledgment due), the provisions of rule 21 shall not apply.

(5) Where an acknowledgment or any other receipt purporting to be signed by the

defendant or his agent is received by the court a postal article containing the
summons is received back by the court with an endorsement purporting to have
been made by a postal employee or by any person authorised by the courier to the
effect that the defendant or his agent had refused to take delivery of the postal article
containing the summons or had refused to accept the summons by any other means
specified in sub-rule (3) when tendered or transmitted to him, the court issuing the
summons shall declare that the summons had been duly served on the defendant:

Provided that where the summons was properly addressed, prepaid and duly sent by
registered post acknowledgment due, the declaration referred to in this sub-rule shall
be made notwithstanding that fact that the acknowledgment having been lost or
mislaid, for any other reason, had not been received by the court within thirty days
from the date of issue of summons.

(6) The High Court or the District Judge as the case may be, shall prepare a panel of
courier agencies for the purposes of sub-rule (1).

5. Summons given to the plaintiff for service (O. V, R. 9-A):

(1) The court may, in addition to the service of summons under rule 9, on the
application of the plaintiff for the issue of a summons for the appearance of the
defendant permit such plaintiff to effect service of such summons on such defendant
and shall, in such a case, deliver the summons to such plaintiff for service.

(2) The service of such summons shall be effected by or on behalf of such plaintiff by
delivering or tending to the defendant personally a copy thereof signed by the Judge
or such officer of the court as he may approve in this behalf and sealed with the seal
of the court or by such mode of service as is referred to in sub-rule (3) of rule 9.

(3) The provisions of rule 18 shall apply to a summons personally served under this
rule as if the person effecting service were a serving officer.

(4) It such summons, when tendered, is refused or if the person served refuses to
sign any acknowledgment of service or for any reason such summons cannot be
served personally, the court shall on the application of the party, re-issue such
summons to be served by the Court in the same manner as a summons to a
defendant.

6. Substituted service:

Where the court is satisfied that there is reason to believe that the defendant is
keeping out of the way for the purpose of avoiding service, or that for any reason the
summons cannot be served in the ordinary way, the court shall order the summons
to be served by affixing a copy thereof 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 or personally worked for gain, or in
such other manner as the court thinks fit. Service may be ordered to be effected by
publication in a local daily newspaper. Service substituted by order of the court shall
be as effectual as if it had been made on the defendant personally. (O. 5, R. 20).

7. Delivery of summons to the plaintiff or his agent. (O. V, R. 9):

(1) The court shall issue summons and deliver the same to the plaintiff or his agent,
for service, and direct the summons to be served by registered post,
acknowledgment, due or by speed post or by such courier service as may be
approved by the High Court or by fax message or by Electronic Mail Service by such
other means as the High Court may prescribe by rules, addressed to the defendant
to accept the service at the place where the defendant or his agent actually and
voluntarily resides or carries on business or personally works for gain.

(2) The plaintiff or his agent shall send the summons by any means as directed by
the court under sub-rule (1) within two days from the delivery of summons to the
plaintiff by the court under that sub-rule.

(3) When an acknowledgment or any other receipt purporting to be signed by the

defendant or his agent received by the court or postal article containing the
summons is received back by the court with an endorsement purporting to have
been made by a postal employee or by any authorised person to the effect that the
defendant or his agent had refused to take delivery of the postal article containing
the summons or refused to accept the summons by any other means specified in
sub-rule (1), when tendered or transmitted to him, the court issuing the summons
shall declare that the summons had been duly served on the defendant: Provided
that summons was properly addressed, pre-paid and duly send by registered post
acknowledgment due, the declaration referred to in this sub-rule shall be made
notwithstanding the fact that the acknowledgment having been lost or misled or for
any other reasons has not been received by the court on the date fixed by it.

8. Simultaneous issue of summons for service by the court-

controlled process. (O. V, R. 9-A):

(1) The court may, in addition to and simultaneously with the delivery of summons for
service to the plaintiff as provided in the manner provided in Rule 9, may also direct
that summons to be served on the defendant or his agent empowered to accept the
service at the place where the defendant or his agent actually and voluntarily resides
or carries on business or personally works for gain.
(2) The summons shall, unless the court otherwise directs, be delivered or sent to
the proper officer in such manner as may be prescribed by the High Court to be
served by him or one of his subordinates.

(3) The proper officer may be an officer of the Court other than that in which the suit
is instituted, and where he is such an officer, the summons may be sent to him in
such manner as the court may direct.

(4) The proper officer may serve the summons by registered post acknowledgment
due, by speed post, by such courier service as may be approved by the High Court,
by fax message, by Electronic Mail Service or by such other means as may be
provided by the rules made by the High Court.

9. Service of summons where defendant resides within the

jurisdiction of another court. (O. V, R. 21):

A summons may be sent by the court by which it is issued, whether within or without
the state either by one of its officers or by post or by such courier service as may be
approved by the High Court, by fax message or by Electronic Mail Service or by any
other means as may be provided by the rules made by the High Court, to any court
(not being the High Court) having jurisdiction in the place where the defendant
resides.

10. Service within Presidency Towns of summons issued by Courts

outside (O. V, R. 22):

Where a summons issued by any court established beyond the limits of the towns of
Calcutta, Madras and Bombay is to be served within any such limits, it shall be sent
to the court of small causes within whose jurisdiction it is to be served.

11. Service on defendant in prison. (O. V, R. 29):

Where the defendant is confined in a prison, the summons shall be delivered or sent
by post or by such courier service as may be approved by the High Court, by fax
message or by Electronic Mail Service or by any other means as may be provided by
the rules made by the High Court, to the officer-in-charge of the prison for service on
the defendant.
12. Service where defendant resides out of India and has no agent.
(O. V, R. 25):

Where the defendant resides out of India and has no agent in India empowered to
accept service, the summons shall be addressed to the defendant at the place where
he 1s residing and sent to him by post or by such courier service as may be
approved by the High Court, by fax message or by Electronic Mail Service or by any
other means as may be provided by the rules made by the High Court:

Provided that where any such defendant resides in Bangladesh or Pakistan, the
summons together with copy thereof, may be sent for service on the defendant, to
any court in that country (not being the High Court) having jurisdiction in the place
where the defendant resides:

Provided further that where any such defendant is a public officer in Bangladesh or
Pakistan (not belonging to Bangladesh or, as the case may be, Pakistan Military,
Naval or Air Forces) or is a servant of a railway company or local authority in that
country, the summons together with a copy thereof, may be sent for service on the
defendant to such officer or authority in that country as the Central Government may,
by notification in the Official Gazette, specify, in this behalf.

13. Service in foreign country through Political Agent or Court. (O.

V. R. 26).Where:

(a) in the exercise of any foreign jurisdiction vested or a court has been established
or contained, with power to serve a summons, issued by a Court under this Code, in
any foreign country in which the defendant actually and voluntarily resides, carries
on business or personally works for gain, or

(b) the Central Government has, by notification in the Official Gazette, declared, in
respect of any court situate in any such territory and not established or continued in
the exercise of any such jurisdiction as aforesaid, that service by such court of any
summons issued by a Court under this Code shall be deemed to be valid service,

the summons may be sent to such Political Agent or court, by post or otherwise, or if
so directed by the Central Government but the purpose of being served upon the
defendant, and, if the Political Agent or Court return the summons with an
endorsement purporting to have been made by such Political Agent or by the Judge
or other officer of the Court to the effect that the summons has been served on the
defendant in the manner hereinbefore directed, such endorsement shall be deemed
to be evidence of service.

14. Summons to be sent to officers of foreign countries (O. V, R. 26-

A):

Where the Central Government has by notification in the Official Gazette, declared in
respect of any foreign territory that summons to be served on defendants actually
and voluntarily residing or carrying on business or personally working for gain in that
foreign territory may be sent to an officer of the Government of that foreign territory
specified by the Central Government, the summonses may be sent to such officer
through the ministry of the Government of India dealing with foreign affairs or in such
other manner as may be specified by the Central Government; and if such officer
returns any such summons with an endorsement purporting to have been made by
him that the summons has been served on the defendant such endorsement shall be
deemed to be evidence of service.

15. Service on Civil Public Officer or on servant of Railway

Company or local authority (O. V, R. 27):

Where the defendant is a public officer, officer (not belonging to the Indian military,
navel or, air force) or is the servant of a railway company or local authority the Court
may, if it appears to it that the summons may be most conveniently so served, send
it for service on the defendant to the head of the office in which he is employed
together with copy to be retained by the defendant.

16. Service on soldiers or sailors or airman (O. V, R. 28):

Where the defendant is a soldier, sailor or airman, the court shall send the summons
for service to his commanding officer together with a copy to be retained by the
defendant.

17. Substitution of letters for summons (O. V, R. 30):

(1) The Court may, notwithstanding anything hereinbefore contained, substitute for a
summons a letter signed by a Judge or such officer as he may appoint in this behalf,
where the defendant is in the opinion of the Court, of a rank entitling him to such
mark of consideration.
(2) A letter substituted under sub-rule (1) shall contain all the particulars required to
be stated to a summons, and subject to the provisions of sub-rule (3) shall be treated
in all respect as a summons.

(3) A letter so substituted may be sent to the defendant by post or by a special

messenger selected by the court, or in any other manner which the Court thinks fit,
and where the defendant has an agent empowered to accept se

Legal Provisions of Order VIII of Code of Civil Procedure, 1908 (C.P.C.), India Written
Statement

The defendant shall, within thirty days from the date of service of summons on him,
present a written statement of his defence:

Provided that where the defendant fails to file the written statement within the staid
period of thirty days, he shall be allowed to file the same on such other day, 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.] (Order VIII, Rule 1).

Duty of defendant to produce documents upon which relief is claimed or relied

upon by him:
(1) Where the defendant bases his defence upon a document or relies upon any
document in his possession or power, in support of his defence or claim for set-off or
counter-claim, he shall enter such document in a list, and shall produce it in Court
when the written statement is presented by him and shall, at the same time, deliver
the document and a copy thereof, to be filed with the written statement.

(2) Where any such document is not in the possession or power of the defendant, he
shall, wherever possible, state in whose possession or power it is.

(3) A document which ought to be produced in Court by the defendant under this
rule, but, is not so produced shall not, without the leave of the Court, be received in
evidence on his behalf at the hearing of the suit.

(4) Nothing in this rule shall apply to documents

(a) Produced for the cross-examination of the plaintiffs witnesses, or

(b) Handed over to a witness merely to refresh his memory.] (Order VIII, Rule 1-A).

Court has power to condone non-filing of written statement within 90 days:

Though a defendant is required to file written statement within 30 days after receipt
of summons and though the Court can extend the time till 90 days, the Court is not
divested of power to fix further time for filing the written statement.

It is well settled that this cardinal principle of interpretation of law with an enactment
has to be read as a whole and then the entire section has to be read and thereafter
the Act has to be interpreted section by section. One Rule or one Section in the
enactment cannot be a guiding factor for arriving at the intendment of the legislature.

The very fact that Rule 10 is re-introduced by Act 22 of 2002 by the Parliament would
show that the Parliament never intended the Civil Court to pronounce judgment
immediately after the failure on the part of the defendant to file written statement
within 90 days.

Specific Denial and deemed Admission:

Rule 3 of Order VIII requires that the defendant must deal specifically with each
allegation of fact of which he does not admit the truth. Rule 5 provides that every
allegation of fact in the plaint, if not denied in the written statement shall be taken to
be admitted by the defendant.

What this rule says is that any allegation of fact must either be denied specifically or
by a necessary implication or there should be at least a statement that the fact is not
admitted. If the plea is not taken in that manner, then the allegation shall be taken to
be admitted.

Admissionsufficient:
In election petition the allegations of corrupt practices were made on the basis of
speeches of a speaker in presence of the candidate. The candidate denied that
expressly or impliedly he had consented to the alleged offending speeches and he
asserted that he was not connected with any act of the speaker or responsible for
any of her actions and he has not invited her. The denial envisaged under Order VIII,
Rule 5 was complete and no implied admission of averments in petition can be read
by non-traverse.

Admission not sufficient:

Private contractor challenged after lapse of four years the Government order black
listing him on the ground of non-service of order. Government pleaded that the order
was communicated. High Court set aside the order of black-listing on the ground of
non-traverse as the Government failed to deny the allegations of contractor.

Supreme Court held that the order of High Court was not justified. When the black
listing order was challenged after lapse of four years, the High Court should have
asked the proof of receipt or non-receipt of order other than the alleged admission.

Against suit of recovery one defendant denied his signatures on vakalatnama and
written statement. In such case instead of going protracted trial, court should have
decreed the suit of the plaintiff against the defendant denying signatures on written
statement and vakalatnama.

Procedure when party fails to present written statement called for by Court:
Where any party from whom a written statement is required under rule 1 or rule 9
fails to present the same within the time permitted or fixed by the Court, as the case
may be, the Court shall pronounce judgment against him, or make such order in
relation to the suit as it thinks fit and on the pronouncement of such judgment a
decree shall be drawn up.] (Order VIII, Rule 10).

Additional written-statement:
Merely because the amendment sought is alleged to be inconsistent with the
previous case of the defendant, it is not a good reason for rejecting the application of
the defendant for amendment. The general rule applicable to a case of this nature is
that leave to amend ought to be granted unless the party applying is acting mala fide
or by his blunder has done some injury to his opponent which cannot be
compensated by award of costs; otherwise whether the original omission arose from
negligence, carelessness, or accidental error, the defect may be allowed to be
remedied if no injustice is done to the other side.

Cause of actionMeaning of:

Cause of action as understood in the civil proceedings means every fact which, if
traversed, it would be necessary for the plaintiff to prove in order to support his right
to a judgment of the Court. To put it in a different way, it is bundle of facts which
taken with law applicable to them, gives the plaintiffs a right to relief against the
defendant.

Set-off:
Set off is reciprocal acquittal of debts. In an action to recover money, set-off is a
cross-claim for money by the defendant, for which he might maintain an action
against the plaintiff, and which has the effect of extinguishing the plaintiffs claim pro
tanto.

Particulars of set-off:
Where in a suit for the recovery of money the defendant claims to set-off against the
plaintiffs demand any ascertained sum of money legally recoverable by him from the
plaintiff, not exceeding the pecuniary limits of the jurisdiction of the court, and both
parties fill the same character as they fill in the plaintiffs suit, the defendant may, at
the first hearing of the suit, but not afterwards unless permitted by the court, present
a written statement containing the particulars of the debt sought to be set-off.

Effect of set-off:
The written statement shall have the same effect as a plaint in a cross-suit so as to
enable the court to pronounce a final judgment in respect of both the original claim
and of the set-off. (Order VIII, Rule 6).

In a suit for injunction, the counter claim for possession by defendant can be
entertained under Order VIII, Rule 6 (A) (l).

Legal Set-Off:
Illustrations:
Legal set-off may be explained by few illustrations.

(a) A suit is brought by a Hindu son as the heir and representative of his father to
recover from B certain debt due to the father. B claims to set-off a debt due to him by
As father. B may do so, for both the parties fill the same character. But the amount
due as manager cannot be set-off against a personal liability, for both parties do not
fill the same character.

(b) A bequeaths Rs. 2,000 to B and appoints C his executor and residuary legatee. B
dies and D takes out administration to Bs effects. C pays Rs. 1,000 as security for D;
then D sues C for the legacy. C cannot set-off the debt of Rs. 1,000 against the
legacy, for neither C nor D fills the same character with respect to the legacy as they
fill with respect to the payment of Rs. 1,000.

(c) A dies intestate and in debt to B. C takes out administration to As effects and B
buys part of the effects from C. In a suit for the purchase money by C against B, the
latter cannot set-off the debt against the price, for C fills two different characters, one
as the vendor to B in which he sues B, and the other as representative to A.

(d) A sues B on a bill of exchange. B alleges that A has wrongfully neglected to

insure Bs goods and is liable to him in compensation which he claims to set-off. The
amount not being ascertained cannot be set-off.

(e) A sues B on a bill of exchange for Rs. 500. B holds a judgment against A for Rs.
1,000. The two claims being both definite, pecuniary demands may be set-off.

(f) A sues B for compensation on account of trespass. B holds a promissory note for
Rs. 1,000 from A and claims to set-off that amount against any sum that A may
recover in the suit. B may do so, for as soon as A recovers, both sums are definite
pecuniary demands.

(g) A and B sue C for Rs. 1,000. C cannot set-off a debt due to him by A alone.

(h) A sues B and C for Rs. 1,000. B cannot set-off a debt due to him alone by A.

(i) A owes the partnership firm of B and C Rs. 1,000. B dies, leaving C surviving. A
sues C for a debt of Rs. 1,500 due in his separate character. C may set-off the debt
of Rs. 1,000.

The set-off mentioned above is a legal set-off. It is apparent from a reading of the
above provisions that in order to constitute legal set-off, the following conditions must
be fulfilled, viz.,

(a) The suit must be for recovery of money.

(b) The defendant must claim an ascertained sum of money. A sum of money due in
respect of a disputed transaction cannot constitute an ascertained sum.

(c) That ascertained sum must be legally recoverable from the plaintiff, i.e., it is not
barred by the law of limitation.

(d) The plaintiffs claim and the set-off must be claimed in the same character. The
amount must be recoverable by the defendant and if there are more than one
defendant then by all the defendants. Again, the amount must be recoverable by the
defendant from the plaintiff and if there are more than one plaintiff then from all the
plaintiffs.
(e) The set-off should be within the pecuniary jurisdiction of the court.

The above provisions further establish that the court must treat the claim of the
defendant exactly as if the defendant had filed a plaint and the court must pass a
decree in favour of the defendant, if his claim is established.

It is only in a written statement that a plea of set-off can be raised. The rule further
confines only to set-off and does not provide for a counter-claim, which is allowed by
way of equitable set-off, and is not expressly provided in rule 6-A of Order VIII, by
C.P.C. (Amendment) Act, 1976.

Equitable set-off:
By equitable set-off we mean that form of set-off which the Court of Equity in
England allowed when cross-demands arose out of the same transaction, even if the
money claimed by way of set-off was an unascertained sum of money. The Common
Law Courts refused to take notice of equitable claims for they were not ascertained
sums.

The Courts of Equity, however, held that it would be inequitable to drive the
defendant to a separate cross-suit and that he might be allowed to plead a set-off
though the amount might be unascertained. Such a set-off is called an equitable set-
off.

Legal set-offOrder VIII, Rule 6:

In India the distinction between legal and equitable set-off remains. The provisions
as to legal set-off are contained in Order VIII, Rule 6, C.P.C. The same has now
been enlarged by insertion of Rule 6-A with regard to counter-claim by the
defendant. So far as equitable set-off is concerned it is provided in Order XX, Rule
19(3), C.P.C., which states that the provisions of this rule (relating to a decree for
set-off or counter-claim and an appeal there from) shall apply whether the set-off is
admissible under Rule 6 of Order VIII or otherwise. The provisions of Order VIII,
Rule 6, and Rule 6-A are, therefore, not exhaustive because apart from a legal set-
off an equitable set-off can be pleaded independently of the specific provision of the
Code.

Legal and Equitable Set-Off:

The distinction between legal and equitable set-off may now be noted:
1. In a legal set-off the amount claimed must be an ascertained sum of money, but in
an equitable set-off the claim must be allowed even with respect to an unascertained
sum of money.

2. In a legal set-off the court is bound to entertain and adjudicate upon the plea when
raised. In the case of an equitable set-off, however, it is not obligatory on the court to
adjudicate upon it and the defendant cannot claim it as a matter of right. The court
has the discretion to refuse to take notice of the equitable set-off if the investigation
into the equitable claim is likely to result in delay.

3. In a legal set-off it is not necessary that the cross-demands arise out of the same
transaction, but an equitable set-off is allowed only when the cross-demands arise
out of the same transaction as the plaintiffs claim.

4. In a legal set-off the amount claimed to be set off must be legally recoverable and
not barred by limitation at the date of the suit, but a claim by way of equitable set-off
can be allowed even if it is barred at the date of the suit where there is fiduciary
relationship between the plaintiff and the defendant.

5. If the defendants claim is barred at the date of the written statement but not
barred at the date of the suit, the defendant can get an equitable set-off to the extent
of the plaintiffs claim only but not for the balance found due to him. In a legal set-off
the whole claim is admissible and the defendant can even get a decree for the
balance.

6. A legal set-off requires a court-fee because it is a claim that might be established

by a separate suit in which a court-fee would have to be paid. But there is no such
fee required in an equitable set-off which is for an amount that may equitably be
deducted from the claim of the plaintiff where a court-fee has been paid on the gross
amount.

Counter-claim by defendant:
A defendant in a suit may, in addition to his right of pleading a set-off under Rule 6,
set up, by way of counter-claim against the claim of the plaintiff, any right or claim in
respect of a cause of action accruing to the defendant against the plaintiff either
before or after the filing of the suit but before the defendant has delivered his
defence or before the time limited for delivering his defence has expired, whether
such counter-claim is in the nature of a claim for damages or not: provided that such
counter-claim shall not exceed the pecuniary limits of the jurisdiction of the court.
(Order VIII, Rule 6-A).

Such counter-claim shall have the same effect as a cross-suit so as to enable the
court to pronounce a final judgment in the same suit, both on the original claim and
on the counter-claim. The plaintiff shall be at liberty to file a written statement in
answer to the counter-claim of the defendant within such period as may be fixed by
the court. The counter-claim shall be treated as a plaint and governed by the rules
applicable to plaints. [Order VIII, Rule 6-A (2-4)].

Object of Counter-claimto reduce pendency of cases:

Rule 6-A contemplates counter-claim in any suit. The scheme of the new rule is to
permit the defendants to set up counter-claims, which arise between the parties and
which are cognizable by the court where the suit is pending. The object appears to
be to reduce pendency of cases so that cause of action and cross-claim similar in
nature could be clubbed together and disposed of by a common judgment.

Nature and Effect of Counter-claimcross-suit:

A written statement making a counter-claim has the same effect as a cross-suit.
When an application for permission to sue for counter-claim in forma pauperis is
filed, the court is bound to consider that application and dispose it of according to
law.

The Honble Chief Justice of the Allahabad High Court Sri Satish Chandra held in
Civil Revision No. 2697 of 1978 (Mahendra Jung Rana v. Pan Singh Negi, on 8th
February, 1980) that the cause of action for the counter-claim should accrue to the
defendant either before or after the filing of the suit but before the defendant has
delivered his defence or before the time for delivering his defence has expired.

The limitation of time is clearly in respect of the cause of action on which the
counter-claim is usually made in the written statement. The provision would become
unworkable if it is so construed as to provide a time limit for filing a counter-claim.

Since the counter-claim can, in law, validly be filed as part of the written statement,
the limitation of time that it should be filed before the defendant has delivered his
defence would make it unworkable. That also would go to suggest that the limitation
of time is in respect of the accrual of the cause of action for the counter-claim and
not for its actually being raised in the suit.
An application for counter-claim under Order VIII, Rule 6-A is not exfacie barred after
filing of written statement.

Rule 6-B of Order VIII provides that where any defendant seeks to rely upon any
ground as supporting a right of counter-claim, he shall, in his written statement, state
specifically that he does so by way of counter-claim. That rule does not apply where
specifically a counter-claim is raised, but confines itself to a ground mentioned in the
written statement as supporting a right to counter-claim.

The plaintiff may object to disposal of the claim by way of counter-claim by pleading
for its disposal by an independent suit, and he may, at any time before issues are
settled in relation to the counter-claim apply to the Court for an order that such
counter-claim may be excluded, and the court may, on the hearing of such
application, make such order as it thinks fit. (Order VIII, Rule 6-C).

Any right or claim in respect of a cause of action accruing with the defendant:
A defendant can file counter-claim in respect of a cause of action which is
independent of cause of action averred by the plaintiff. It need not confine to money
claim or to cause of action of the same nature as of the plaintiff or related to or be
connected with the original cause of action or matter pleaded by the plaintiff. In a suit
for injunction, counter claim for injunction in respect of the same or different property
can be made under Order VIII, Rule 6-C.

If the plaintiff makes default in putting in a reply to the counter-claim made by the
defendant, the court may pronounce judgment against the plaintiff in relation to the
counter-claim made against him, or make such order in relation to the counter-claim
as it thinks fit. (Order VIII, Rule 6-E).

Where in any suit a set-off or counter-claim is established as a defence against the

plaintiffs claim, and any balance is found due to the plaintiff or defendant, as the
case may be, the court may give judgment to the party entitled to such balance. The
rules relating to a written statement by a defendant shall apply to a written statement
filed in answer to a counter-claim. (Order VIII, Rules 6-F and 6-G).

Set-Off and Counter-Claim:

The distinction between set-off and counter-claim may now be noted:

(1) Set-off must be for an ascertained sum or must arise out of the same transaction
as the plaintiffs claim; a counter-claim, however, need not arise out of the same
transaction.
(2) Set-off is a statutory ground of defence and has to be pleaded in the written
statement. It can, however, be sued as a shield and not as a sword. Counter-claim,
on the other hand, does not afford any defence to the plaintiffs claim; it is a weapon
of offence which enables the defendant to enforce his claim against the plaintiff as
effectually as in an independent action. It is a sort of cross-action.

(3) If the statute of limitation is pleaded to a defence of set-off, the plaintiff in order to
establish his plea has to prove that set-off was barred when the plaintiff commenced
the action; it is not enough to prove that it was barred at the time when it was
pleaded. In the case, however, of a counter-claim it is enough for the plaintiff to
prove that the counter-claim was barred when it was pleaded.

(4) An equitable set-off is a claim by the defendant in defence, which generally

cannot exceed the plaintiffs claim. A counter-claim by the defendant may, however,
exceed the plaintiffs claim, being in the nature of the cross-action. Under the
provision of Rule 6-F of Order VIII, if in any suit a set-off or counter-claim is
established as a defence against the plaintiffs claim, and any balance is found due
to the defendant, as the case may be, the court may give judgment to the party
entitled to such balance.

Failure to present written statement called for by court:

Where any party from whom a written statement is so required fails to present the
same within the time fixed by the court, the court shall pronounce judgment against
him, or make such order in relation to the suit as it thinks fit, and on the
pronouncement of such judgment, a decree shall be drawn up. (Order VIII, Rule 10).

Res Judicata

Res Judicata in Latin means a matter (already) judged. It is also called as Claim
Preclusion. It is a common law practice meant to bar re-litigation of cases between the same
parties in the court.
A case in which there has been a final judgement and is no longer subject to appeal,
the doctrine of Res Judicata bars (precludes) continued litigation of such matter between the
same parties. Thus in case of Res Judicata, the matter cannot be raised again, either in the
same court or in a different court.
Res Judicata aims to prevent
Injustice to the parties of a case that has been supposedly concluded.
Unnecessary waste of Court resources.
Prevent Multiplying of judgements.
Recovery of damages from the defendant twice for the same injury.
The Three Maxims
Doctrine of Res Judicata or Rule of Conclusive Judgement is based on the following
three maxims:

1) NEMO DEBET LIS VEXARI PRO EADEM CAUSA- No Man to Be Vexed Twice
For The Same Cause.
2) INTEREST REPUBLICAE UT SIT FINIS LITIUM- It is in the Interest of the State
That There Should Be End To Litigation.
3) RE JUDICATA PRO VERITATE OCCIPITUR- A Judicial Decision Should Be
Accepted As Correct.

Ashok Kumar V National Insurance Co 1998

S.C observed that the first legal maxim takes care of the private interest and the
next two of the larger interest of the society.

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, 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.

Ingredients of S.11 CPC Rule of Conclusive Judgement:

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 claiming under them, litigating under the same title
- In a court competent to try such suit
- Or a suit in which the matter has been subsequently raised
- And has been heard and finally decided by such court

The following are also to be taken into account:

1) Former suit denotes a suit which has been decided prior to the suit in question, and not
if it was prior to this suit. i.e. the cut-off is date of judgement and not the date of institution of
the suit.
2) Competency of a Court is to be decided, irrespective of the right to appeal from a
former suit.
3) The matter referred to in this suit must have been alleged by one party and either
accepted or refused by the other party (expressly/impliedly).
4) Any matter which might or ought to have been made ground of attack/defence in such
former suit, shall be deemed to have been a matter directly and substantially in issue in such
suit (Constructive Res Judicata).
5) If any relief was claimed in plaint and was not granted expressly, it would be deemed to
have been refused in such former suit.
6) When persons litigate bonafide in respect of a public / private right claimed in common
for themselves and others, all persons interested for the purpose of S.11 , will be deemed as
claiming under persons litigating.
7) It is also to be remembered that, a Court of limited jurisdiction where the former suit
was instituted and decided upon, shall operate as Res Judicata, even if the Court of limited
jurisdiction is not competent to try the subsequent suit.
8) This S.11 applies to execution proceedings also.

In SlochanaAmma V Narayana Nair 1994: Held, the doctrine of Res Judicata applies to
quasi judicial proceedings before tribunals also.

In Govndaswamy V KasturiAmmal 1998: Held, the Doctrine of Res Judicata applies to the
plaintiff as well as the defendant.

In Umayal Achi V MPM RamanathanChettiar: Held, the correctness or

otherwise of a judicial decision has no bearing upon whether or not it operates as Res
Judicata.

S.11 Mandatory Provision:

S.11 is mandatory and not directory in nature. The judgement in a former suit can be
avoided only by taking recourse to s.44 Indian Evidence Act on grounds of fraud or collusion.
Beli Ram Brothers V ChaudariMhd Afzal
It was held, that, when it was established that the guardian of the minor had acted in
collusion with the defendant, it doesnt operate as Res Judicata and can be set aside invoking
S.44 Indian Evidence Act.
Jallur Venkata Seshayya V TahdavicondaKoteswara Rao 1937
Held, that, gross negligence in former suit doesnt amount to fraud or collusion and
thus acts as bar to subsequent suit.

Section 11, C.P.C. embodies the rule of conclusiveness as evidence or bars as a plea of an
issue tried in an earlier suit founded on a plaint in which the matter is directly and
substantially in issue and became final. In a later suit between the same parties or their privies
in a competent court to try such subsequent suit in which the issue has been directly and
substantially reviewed and decided in the judgment and decree in the former suit would
operate as res Judicata.

Section 11 does not create any right or interest in the property, but merely operates as a bar to
try the same issue once over. In other words, it aims to prevent multiplicity of the proceedings
and accords finality to an issue, which directly and substantially had arisen in the former suit
between the same parties or their privies, decided and became final so that parties are not
vexed twice over; vexatious litigation would be put to an end and the valuable time of the
court is saved.

Res Judicata and Res Sub-Judice:

The rule of res Judicata in section 11 is clearly distinguishable from the rule of res sub-Judice
enshrined in section 10. The former relates to a matter already adjudicated upon, i.e., a matter
on which judgment has been pronounced, while the latter relates to a matter which is pending
judicial enquiry.

The rule in section 10 bars the trial of a suit in which the matter directly and substantially in
issue is pending judicial decision in a previously instituted suit by staying the trial of the
latter suit; section 11 bars altogether the trial of a suit or an issue in which the matter directly
and substantially in issue has already been adjudicated upon in a previous suit.

Essentials of Res Judicata:

essential that the former judgment must be:

(1) That of a court of competent jurisdiction;

(2) Directly speaking upon the matter in question in the subsequent suit; and

(3) Between the same parties.

1. Directly and substantially in issue:

The matter directly and substantially in issue in the subsequent suit must be the same matter
which was directly and substantially in issue, either actually or constructively, in the former
suit. The word suit has not been defined in the Code but is understood to embrace any
proceeding in a court of law by which an individual pursues that remedy which the law
allows him.

The rule of res Judicata only requires the identity of the matter in issue. In order that this
condition may be fulfilled it must have been alleged by one party and either denied or
admitted, expressly or by necessary implication, by the other.

It is enough if the matter was in issue in substance in the former suit as also in the subsequent
suit. The substance and not the form of the decision should be looked at. It is essential that
the matter must be in issue directly and substantially in the suit under trial and not collaterally
or incidentally.

The principle of res Judicata does not depend on whether the cause of action in the two suits
are identical. Causes of action in the two suits may be different, but the test is whether the
matter directly and substantially in issue is the same in both suits and whether the parties are
the same or the suit is between parties claiming under them and litigating under the same
title. The expression cause of action used in this connection means that the matter in
dispute is substantially the same, and the parties are the same or litigating under the same
title.

It is the matter in issue directly and substantially, either actually or constructively, and not the
subject-matter that forms the test of res Judicata. If the causes of action in the two suits are
different, the matter in issue in them will not be the same and hence the decision in the former
suit cannot operate as res Judicata.

The words directly and substantially in issue in section 11, C.P.C. are not confined to the
relief granted in the former suit or to the property which was its subject-matter. The words in
section 11 also clearly imply that the decision on a matter not essential for the relief finally
granted in the former suit or which did not form one of the decisions cannot be said to have
been directly or substantially in issue in the former case.

Thus where certain reliefs were granted in a suit to the plaintiff it is not open to the defendant
to raise any plea in a subsequent suit which will interfere with the relief in the prior suit. The
principle of res Judicata does not extend to anything more than this.

It is well-established that it is the decision of the matter in the previous suit which operates
res Judicata and not the reason or the basis of the decision that operates as res Judicata.
Where the title of the plaintiff to the entire property covering the subject-matter of the
previous suit and the subject-matter of the subsequent suit is not directly put in issue in the
previous suit, the decision in the previous suit in which observations are made with regard to
the title of the plaintiff over the entire subject-matter of the two suits are merely reasoning for
holding that the plaintiff was entitled to the subject-matter that is the basis of res Judicata.
What one has to decide is, whether in words of section 11, C.P.C. the matter in dispute in the
subsequent suit was directly and substantially in issue in the previous suit and it was decided.

2. Between the same parties:

The second essential condition to constitute the bar of res Judicata is that the former suit must
have been a suit between the same parties or between parties under whom they or any of
them claim. Res Judicata not only affects the parties to the suit but their privies, i.e., persons
claiming under them. A judgment not inter partes or in rem is not res Judicata in a subsequent
suit though it may be received in evidence.
3. Litigating under the same title:

The third essential condition to constitute the bar of res judicata is that the parties must have
litigated under the same title in the former suit. The expression litigating under the same
title means litigating in the same capacity.

Thus a suit brought by a person to recover possession from a stranger of math property
claiming it as heir of the deceased Mahunt is no bar to a suit by him as manager of the math,
if the first suit is dismissed on his failure to produce the succession certificate for the two
suits arise under different capacities.

It does not matter if the transfer attacked in one case is a mortgage and in the other case a
gift. All that the phrase litigating under the same title connotes is that the demand should
have been of the same quality in the second suit as in the first.

Where the right of the temple was first agitated by the trustees and later by worshippers, the
later suit is barred by res judicata. A decision, however, against a person in his individual
capacity does not bind his successor in the office of trustee on an endowment.

Where the first suit was filed as a reversioner, the later suit filed as a member of a joint
family is not barred. The principle of constructive res judicata does not apply if the second
suit is instituted by the same person in a different capacity.

The primary test of res judicata depends upon the identity of title in the two litigations and
not the identity of the actual property involved in the two cases. Therefore, even if the
property involved in the previous suit was different, that cannot be an impediment to invoke
the principle of res judicata. The plea of res judicata could also be established on the record
of the judgment and decree in the previous suit and not necessarily on the production of the
pleadings.

4. Competency of Court to try the subsequent suit:

The fourth condition is that the court which decided the former suit must have been a court
competent to try the subsequent suit or the suit in which such issue is subsequently raised.

The decisions of the courts of limited jurisdiction shall in so far as such decisions are within
the competence of the courts of limited jurisdiction, operate as res judicata in a subsequent
suit although the court of limited jurisdiction may not be competent to try such subsequent
suit in which such question is subsequently raised.
5. Heard and finally decided by the court in the first suit:

The last condition is that the matter directly and substantially in issue in the subsequent suit
must have been heard and finally decided by the court in the first suit. The section requires
that there should be a final decision on which the court has exercised its judicial mind.

A matter will be said to have been heard and finally decided notwithstanding that the former
suit was disposed of ex parte or by dismissal under Order XVII, Rule 3, i.e., for failure to
produce evidence when time was allowed to do so, or by a decree on an award or by
dismissal owing to plaintiffs failure to adduce evidence at the hearing.

But it is necessary, that the decision in the former suit must have been on the merits and so
the matter cannot be said to have been heard and finally decided when the former suit was
dismissed by the trial court for want of jurisdiction, or for default of plaintiffs appearance, or
on the ground of non-joinder or misjoinder of parties, on account of multifariousness, or on
the ground that the suit was badly framed, or on the ground of a technical mistake, or for
failure on the part of the plaintiff to produce probate or letters of administration or succession
certificate when the same is required by law to entitle the plaintiff to a decree, or for failure to
furnish security for costs, or on the ground of improper valuation, or for failure to pay
additional court fee on a plaint which was undervalued, or for want of a cause of action, or on
the ground of limitation, or on the ground that it is premature and the dismissal is confirmed
in appeal (if any), the decision not being on the merits would not be res judicata in a
subsequent suit.

In order to ascertain what matter was heard and finally decided, the pleadings and the
judgment should be examined. Express decision is not necessary, it being sufficient that an
adjudication on the matter is necessarily involved. Nor need it be embodied in the decree.

Dismissal of a suit on the ground that the plaintiff was not entitled to raise the plea on which
the suit was founded, without any inquiry into his title, cannot be taken to be a decision that
for all time and in all proceedings between the parties it must be taken that the plaintiff had
no title. Where a suit is dismissed as being premature, the decision is no bar to the filing of a
further suit.