Substantive law: the function of substantive law if to define, create or confer substantive legal

rights or legal status or to impose and define the nature and extent of legal studies.

Procedural law: the function of procedural law is to provide the machinery or the manner in
which the legal rights, status or duties may be enforced or recognized by a court of law or any
others properly constituted tribunal.

History of Cpc

 Before 1859, no codified procedural law and the court used to decide the matter on their
own terms.
 Due to the mutiny of 1857, the crown introduced CPC in 1859 in the small causes court
and presidency courts.
 In 1877, CPC was largely amended and a new CPC was brought in.
 In 1882, again new CPC was introduced by making tremendous changes.
 Through common dialogue with Indians, new CPC in the year of 1908 was introduced
which was enforced on all courts. It was simplified version and provided for speedy
trials.
 In 1951, a minor amendment was made to make CPC more sort of Indian law.
 In 1976, CPC was further amended.

Objects of CPC 1908

 A litigant should get a fair trial in accordance with the accepted principles of natural
justice.
 Every effort should be made to expedite the disposal of civil suits and proceedings so that
justice may not be delayed.
 The procedure should not be complicated and should to the extent possible ensure a fair
deal to the poorest sections of the community who do not have the means to engage a
pleader to defend their cases.

Objects of amending CPC in 1976:

 Inclusion of doctrine of res judicata.

 Power to transfer proceedings from one high court to another high court is given to
Supreme Court. [jaylalitha Case, from Tamil Nadu to Karnataka]
 Freedom form attachment of a portion of salary to all salaried employees is granted.
 Provision of giving notice under §80 before the institution of the suit against the
government for a public office was made less stringent so as to facilitate justice delivery.
 Restriction was imposed on the right of appeal and revision. Appeal is merely a statutory
provision.
  Provisions were made to ensure that written statement and documents are filed before
delay.
 Important changes were made to provide relief to poorer sections of the society.

Letters patent: an appeal can move laterally within one hierarchy court.

But even after this, a government report suggested that the average time taken for disposal is 5-6
years and cases are not fastly resolved. Under the chairmanship of Justice Mallimath, a
committee was formed which provided for the faster disposal of cases.

The Supreme Court even pointed out the same things in the case of Salem Bar Association I,
where SC focused that essential amendments are needed to be undertaken.

The amendments of 1999 and 2002 were implemented but a new scope was created through
grant of discretionary power to the judges for final say. The reason being the protest from the
advocates on genuine grounds of justice delivery and Salem II case.

Major amendments brought in through 1999-2002 amendments:

 In several matters such as issuance of summons, filing of written statement, amendment

of pleadings, production of documents and examination of witnesses a time limit is
prescribed. It was a matter of self imposed duty on the courts. A limit of 7 days was made
but it was further diluted through the Salem II case and if there are genuine grounds of
delay, such delay could be accepted.
 A new provision for settlement of disputes outside the court has been introduced. Out of
the bounds of the court technicalities. The court may even appoint an appropriate person
for the settlement of the dispute outside the court and after the finality of the settlement,
the settlement has to be presented in the court and a decree would be issue on those
grounds so that any of the parties may not revert the matter back to the court after some
time.
 The number of adjournments has been restricted. Initially it was restricted to 3.
 A provision of recording the evidences by the court appointed commissioner was
introduced to save the time. Qualified to be a lawyer, is neutral to the matter and knows
the court procedure. Such person has to be submit the report of all his findings, evidences
and witnesses statements to the court and have to authenticate the evidences produced in
the court. After the dilution, the advocates can ask the court not to appoint the
commissioner and court may exercise discretion by not appointing the commissioner.
 Endless arguments were aimed to be shortened by empowering the court to fix a time
limit on oral arguments and by permitting to place written arguments on record by the
parties. Ayodhya case, SC ordered the special CBI court to complete the hearing within 2
years by limiting the arguments. Dilution: The court may fix and on the ground of
 genuine issues the court may extend the pre-fixed time line. Therefore, no rigid provision
was placed.
 The scope of first appeal, second appeal, letters patent appeal and revision has been
curtailed. On what grounds the appeal is preferred, such grounds should be exceptional
and can the same question be raised before the appellate court. And even if some
argument is not presented in a lower court and such point is raised in the appellate court,
such arguments are restricted. Revision is only restricted to deal with the error present in
the existing judgment.

If any point is dealt by CPC, then CPC becomes exhaustive and have a greater say. In other
cases, provision of CPC may not be applied because if applied it can make the matters
complicated before such matters were deliberately not included in CPC so as to ease the justice
delivery. [The code of civil procedure is exhaustive on matters which are specifically dealt by it
but it is not exhaustive on those points which are not specifically dealt or intended to be touched
upon therein. Manohar Lal v. Seth Hiralal AIR 1962 SC 527].
Important definitions:

 Decree: the decree is defined under S 2(2) of CPC where it says that decree means the
formal expression of adjudication by the court which conclusively determines all or any
of the matters in controversy in the present suit which may either be preliminary or final.
It shall be deemed to include the order of rejection of a plaint but shall not include- any
adjudication from which an appeal lies as or in the form of an appeal from an order
(appealable order), any order of dismissal of suit for default.

Essential conditions of a decree:

o There must be adjudication: we essentially include judicial or quasi judicial

adjudication. For the purpose of decree, adjudication shall mean judicial
determination of the matter in dispute. Therefore, a decision on a matter of
administrative nature or an order dismissing the suit for default of appearance by
parties cannot be termed as a decree. Similarly and order passed by an officer who
is not a court or not vested with any kind of judicial power by law is not a decree.
[Deep Chand v. Land Acquisition Officer, AIR 1994 SC 1901]
o Such adjudication must be there in a suit. Suit is not defined in cpc. It was defined
in the case of Hansraj Gupta v. Official liquidators of Dehradun mussoire
electric tramway company lmt. [AIR 1933 PC 63] where the court stated that,
any court proceeding in cpc initiated by the presentation of a plaint. The word suit
ordinarily means a civil proceedings instituted by the presentation of a plaint.
Thus every suit has to be instituted by presenting a plaint, and without being a
suit, there cannot be a decree.
o Right of parties in controversy are to be determined: substantive rights and not
procedural rights. For any kind of procedural order, its merely a form of order and
not a decree. Such procedural rights would be exercised by submission of certain
applications. Whereas the substantive rights are determined through the merit and
subject matter of the case. The word rights, for this purpose essentially means,
substantive rights of the parties and not merely a procedural right. [Dattatraya v.
Radha Bai AIR 1921 Bom 220]. The substantive rights of the parties, includes
any rights relating to the status, jurisdiction, frame of the suit etc. thus an order for
dismissal of a suit for default of a appearance or an order of refusing the leave to
sue in informa pauperis etc. do not determine the substantive rights of the parties
and hence are not construed to be a decree. In the conditions where procedural
rights are even determined with substantive right, such orders would even be
called decree.
o Conclusive determination of rights: the court has finally decided one right in a
suit and that determination remains final remains final for the entire suit in that
particular court. If multiple rights are to be determined, determination of every
single rights would be called as decree even though all the rights may not be
 determined at that stage. The determination must be final and conclusive as
regards to be court which passes it. [Narayan chandra v. Pratirodh Sahini]. An
inter locutory order which does not decide the rights of parties finally like refusal
of adjournment etc. are not decrees because they do not lead to any conclusive
determination on merits of the case.
o Formal expression: there must be a formal expression of such adjudication which
means that all the requirements of the form or suit must be complied with and it
must be deliberate in manner and should be according to the procedure prescribed
by the law. In case of formal expression it is the decree which follows the
judgment and must be drawn up separately. Shakultala devi v. kuntal kumari.
Operative order acts as judgment when multiple decrees are passed before the
actual judgment.

Order or decisions which are decrees:

 Order of abetment of suit: decision of legal ground regarding the fact that the parties are
having certain rights or not. Order of integration and disintegration of rights even are
called decrees. Decision on the merits of the case which carries the effect of conclusive
determination of right.
 Dismissal of appeal as time barred: the right of reaching to the court is exhausted and
therefore this decision acts as the conclusive document of the appeal. Therefore, the
original order of the lower court stands.
 Dismissal of suit or appeal for want of evidence or proof: these kind of matters and cause
of actions are mere claims as no evidence are produced. And this dismissal is res judicata
so that they the parties cannot go to court of the same level. Even such decisions are
being made on merits of the case, therefore it have the effect of a decree. and this has an
indirect effect on the other party as this order allows the defendants to continue to do
whatever they were doing before this suit.
 Order holding appeal not maintainable: the decision of lower court stand and the parties
are directed to do whatever they were doing. Indirect conclusive decision on the rights of
the parties.
 Order holding that right to sue does not arise: as it mere statutory right
 Order holding that there is no cause of action:
 Order refusing one of the several reliefs: the reliefs which are rejected cannot be raised in
court again and therefore such decision is also final.

Decisions which are not decrees:

 Dismissal of appeal for default: no merit of the cases discussed. But ex parte decisions
are decrees.
  Appointment of commissioner to take accounts: mere collection of evidences. Subject
matter of the suit is not in any way being decided. Just the submission of report regarding
his studies.
 Return of plaint for presentation to a proper court:
 Rejection of application for Condonation of delay: it not the discussion of the merit of the
case.
 Order directing assessment of mesne profits.

Preliminary decree and final decree

A preliminary decree is one which declares the rights and liabilities of the parties leaving the
actual result to be worked out in further proceedings as a result of inquiries conducted pursuant
to the preliminary decree, the rights of the parties would then be fully determined and a decree is
passed in accordance with such determination which is final. Both the decrees has to be in the
same suit. A final decree may said to be final in two ways: 1. When the time for appeal has
expired without any appeal being filed against the preliminary decree or the matter has been
decided by the highest court 2. When the time for appeal has expired without any appeal being
filed against the preliminary decree and the matter stands completely disposed of. [Shankar v.
Chandrakant AIR 1995 SC 1211].

Preliminary decree: when an adjudication decides the rights and liabilities of the parties with
regard to all or any of the matters in controversy in this suit but does not completely dispose of
the suit, it is called as preliminary decree. it is only a stage in working out the rights of the parties
which are to be finally adjudicated by a final decree and till then the suit continues. [Mool
Chand v. Director, Consolidation AIR 1995 SC 2493]

The cpc provides for passing of preliminary decrees in following circumstance:

 Suits for possession and mesne profits, order 20 rule 12

 Suit for dissolution of partnership, order 20 rule 15
 Suit for partition and separate possession, order 20 rule 18
 Suits for sale of mortgaged property, order 34 rule 4 and 5
 Suit for redemption of a mortgage, order 34 rule 7 and 8. A court may pass a preliminary
in cases not expressly provided by CPC.

Situation where multiple preliminary decrees can be passes: e.g. 1st and 3rd from above list. Phool
chand v. Gopal lal [AIR 1967 SC 1470] there is nothing in cpc which prohibits passing of more
than one preliminary decree if the circumstances justify the same and it may be necessary for the
court to do so. Limitation: but the above observation is restricted to partition suits alone. Later
on, the limitation was lifted and now it all depends on the discretion of the Court which may
decide it on the facts and circumstances.

Final decree: final decree is said to be final in two ways:

1. when within the prescribed period, no appeal is filed against the decree or the matter has been
decided by the highest court.

2. when the decree, so far as regards to the court passing it, completely disposes of the suit.
[Shankar v. Chandrakant 1995 3 SCC 413]

There can be more than one final decree. but it may defeat the essence of Cpc as multiple appeals
has to be made for multiple decrees, as it may make the procedure slow.

1. Gulsum Bivi v. Ahmadasa Rowther, AiR 1919 Mad 998: order 20, rule 12 and 18 was
challenged, the court held that: neither of these rules contemplates more than one preliminary
decree and one final decree in one suit. The cpc nowhere contemplates more than one final
decree in one suit. To have two final decrees and to call one decree final or the first one as the
final decree will be a misnomer as it will not be final.(disabling interpretations)

2. Kasi V. Ram Nathan Chettiar 1947 2 MLJ 523: the court observed that the question is not
whether cpc allows more than one preliminary decree or one final decree to be made but whether
the code contains a prohibition against the court in a proper case passing more than one such
decrees and the court took a divergent view and held that there could be more than one
preliminary and one final decree in a suit. (Negative Interpretation) (enabling interpretation)

3. Shankar v. Chandrakant AIR 1995 SC 1211: it is a settled law that more than final decree
can be passed.

Partly preliminary and party final decree

A decree may be partly preliminary and partly final like in a suit for possession of immovable
property with mesne profits where the court,

1. decrees the possession of the property

2. directs an enquiry into the mesne profits

The former part of decree is final whereas the latter part is preliminary.

Rejection and return of Plaint: There is always jurisdiction remains in the court. It have the
nature of decree. Section 2(2) specifically provides that rejection of plaint shall be deemed to be
a decree whereas an order returning a plaint or memorandum of appeal to be presented to proper
court will not be a decree. the reason is that such an order does not negate any rights of the
plaintiff or appellant in any manner and therefore it cannot be termed as a decision relating to the
matters in controversy in the suit.

Restitution: only if it is demanded as a right or demanded as a relief. Determination of any

question under Section 144 or within its meaning is termed as restitution and is included within
the meaning of decree for the purpose of giving the right to appeal only under the circumstances
where it leads to the adjudication on the aspects of the rights in the controversy. Otherwise if it is
neither made in a suit nor is asked as a matter of right then it will not be termed as a part of
decree.

Appealable orders: an adjudication from which an appeal lies just like an appeal from or
against a decree are termed as appealable orders e.g. orders like returning plaint for presentation
to a proper court or rejecting an application to set aside an ex parte decree or an order rejecting
an application for permission to sue as an indigent person are called as appealable order and not
decrees. The distinction between a decree and an appealable order lies in the fact that in case of a
decree second appeal lies in certain cases whereas for an appealable order there is no provision
for second appeal.

Judge: it means the presiding officer of a civil court. Although the term court has not been
defined in CPC, it can commonly be referred as assembly of judges or other persons acting as a
tribunal in civil or criminal cases where the justice is judicially administered. [E. D. Sinclair v.
L.P.D Brougton]

Judgment: Section 2(9), it means the statement given by a judge of the grounds of a decree or
an order. It is more sort of universal nature. Essential elements of judgment:

 The essential elements of a judgment is that there should be a statement laying down the
grounds of the decision. [Vidya Charan Shukla v. Khub Chand Baghel, AIR 1964 SC
1099]
 Every judgment other than that of small causes court should contain
o A concise statement of the case;
o Points of consideration;
o The decision thereon;
o The reasons for the decisions.

Balraj Taneja v. Sunil Madan AIR 1999 SC 3381: a judge cannot merely say ‘suit decreed or
suit dismissed.’ The whole process of reasoning has to be set out for deciding the case one way
or the other. Even the small causes court judgments must be intelligible and must show that the
judge has applied his mind. The judgment need not be on all the issues in a case and may even be
on a preliminary issue itself.

Distinction between judgment and decree:

 A judgment is the statement given by the judge laying down the grounds of a decree.
Whereas decree is the enforcement of the rights developed on the basis of the reasoning
pronounced in the judgment.
 It is not necessary that there should be a formal expression of every order in the
judgment though it is desirable. Whereas for a decree it essentially has to be a formal
expression.
  A judgment has to include precisely the relief granted, rule 6-A of order 20 inserted by
1976 amendment.

Order: order means the formal expression of any decision by the civil court which is not a
decree. section 2(14).

Order is also a formal expression. Order may also include a determination by the court on a
specific issue and even decide the rights of the parties. But it does not pronounce the conclusive
determination. As a general rule an order of a court of law is based on objective considerations
and may contain a discussion of the question at issue and the reasons which prevailed within the
court which lead to the passing of the order.

Similarities between order and decree:

 Both relates to matters in controversy

 Both are the decision given by the court.
 Both are judicial adjudication pronounced by the court
 Both are formally expression of a decision.

The difference between order and decree:

 A decree can only be passed in a suit or civil proceedings which commenced with
presentation of a plaint whereas and order may originate even from a proceeding which
commenced through an application.
 A decree is an adjudication conclusively determining the rights of the parities with regard
to all or any of the matter sin controversy. Whereas the order may or may lead to an
conclusive determination of any such right.
 A decree may be preliminary or final or partly preliminary or partly final whereas there
cannot be a preliminary order.
 Except in certain suits, mostly, a suit will have two decrees, one preliminary and one final
or may even have a single final decree. within civil suit or proceeding depeding on the
number of applications, there can be multiple orders.
 Every decree is appealable unless otherwise expressly provided. Only those orders for
which a provision for appeal is mentioned in CPC are appealable.
 A second appeal lies to the high court on certain grounds from the decree passed on first
appeal. No second appeal is allowed even in case of appealable orders.

Decree holder: Any person in whose favor a decree has been passed or an order capable of
execution has been made is called decree holder. Section 2(3). Decree holder need not
necessarily be a plaintiff.

Judgment debtor: any person against whom a decree has been passed or an order capable of
execution has been made. Section 2(10).
Foreign court: foreign court means a court situated outside india and not established or
continued by the authority of central government. E.g. Pondicherry in 1908.

Legal representative: legal representative means a person who in law represents the estate of a
deceased person and includes any person who intermeddles with the estate of the deceased
person and where a party sues or is sued in a representative character, the person on whom the
estate devolves on the death of the party so suing or sued.

Decree and legal documents are even part of estate. So it is transferable asset and can be a
responsibility even.

Mesne Profits: mesne profits means those profits which the person in wrongful possession of
such property actually received or might with ordinary diligence have received together with
interest on such profits but shall not include profits due to improvements made by the person in
such wrongful possession. Section 2(12)

Object of mesne profits: every person has a right to possess his property and when he is deprived
of such possession, he is not only entitled to the restoration of such possession but also damages
on account of such wrongful possession. Thus the object of decree for mesne profits si to
compensate the person who has been kept out of possession of his property and has been
deprived of his right of peaceful enjoyment of his property even though he was entitled to such
possession thereof. [Lucy Kochuvareed v. P. Mariappa Gounder AIR 1979 SC 1214]

Criterion for Assessment of Mesne Profits: a person who is in wrongful possession and
enjoyment of immovable property is liable for mesne profits. Where the owner or plaintiff is
dispossessed by several persons every one of them would be liable to pay mesne profits even
though they might not be in actual possession or the profits have not been received by them. In
such cases the court may hold all the possessors jointly and severally liable leaving them to have
their rights adjusted in a separate suit for contribution or within the same suit through division of
liability among each of them.

Mesne profits are in the nature of damages and while assessing the mesne profits the court
usually take into account what the defendant has gained or reasonably might have gained by his
wrongful possession of the property. The court may decide the mesne profits according to the
facts and circumstances. [Fateh Chand v. Balkishan das AIR 1963 SC 1405].

The test to ascertain mesne profits is not what the plaintiff has lost by being out of possession but
what the defendant has gained or might reasonably with ordinary prudence have gained by such
wrongful possession. [Marshall Sons & Co. v. Sahi oritrans Pvt, Ltd. AIR 1999 SC 882]

Principles for calculation mesne profits:

 No profits by a person in wrongful possession.

 Restoration of status before dispossession of decree holder.
  Use to which a decree holder would have put the property if he himself was in
possession.

Interest over mesne profits: interest is an integral part of mesne profits which has to be allowed
in computation of mesne profits itself. the rate of interest allowed over mesne profits shall not
exceed 6% per annum and such interest can be allowed till the date of final payment. [Mahant
Narayan Das ji v. Tiruumalai Tirupati Devasthanan AIR 1965 SC 1231].

Affidavit: it is a declaration of facts reduced to writing and affirmed or sworn before an officer
having authority to administer oaths. It should be drawn up in first person and should contain
statements and not inferences.

Cause of Action: bundle of essential facts which are necessary for the plaintiff to prove before
he can succeed. It is an antecedent to the suit and if the plaint fails to disclose the cause of action,
the court will reject such plaint.

Caveat: caveat is an official request that a court should not take a particular action without
issuing notice to the party lodging the caveat and without affording an opportunity of hearing
them. Going to the court before the other party approaches.

Plaint: a plaint is a statement of claim, a document or a memorial by the presentation of which a

suit is instituted. It contains the grounds on which the assistance of the court is sought by a
plaintiff and also referred to as the pleadings of the plaintiff.

Summons: it is a document issued from the office of a court calling upon the person to whom it
is directed to attend before a judge or an officer of the court for a certain purpose. It is a written
order that legally obligates someone to attend a court of law at a specified date.

Written statement: it is considered as a reply of the defendant against the plaint filed by the
plaintiff. It is referred as pleading of the defendant dealing with every material fact raised in the
plaint. It may also contain new facts discussed which are in favor of defendant or legal
obligations against the claims of a plaintiff brought before the court.

Jurisdiction of the court: a litigant having grievance of civil nature has a right to institute a
civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred
by any statute. [Abdul Waheed Khan v. Bhanwani AIR 1966 SC 1718]. A suit for its
maintainability requires no authority of law and it is enough that no statute bars it. [Ganga Bai v.
Vijay Kumar AIR 1974 SC 1126]. The court cannot confer jurisdiction to itself, it is only in the
power of the legislature to decide the jurisdiction of the judiciary. Any decree passed without
jurisdiction is null in eyes of law. Consent to fix the jurisdiction of an empowered court is valid.

Jurisdiction means the power or authority of a court of law to hear and determine a cause or a
matter. It is the power to entertain and decide a suit or civil proceeding.
In the case of Official Trustee v. Sachindra Nath AIR 1969 SC 823, the court held that a court
must not only have jurisdiction to try the suit brought but must also have the authority to pass the
order sought for. Jurisdiction must include power to hear and decide the question at issue and
decide the particular controversy that has arisen between the parties. if the court cannot pass the
relief prayed for, then the court do not possess the jurisdiction to adjudicate the case.

Jurisdiction and consent: [A R Antulay v. R S Nayak AIR 1988 SC 1531], the power to
create and enlarge jurisdiction is legislative in character and so also the power to confer a right of
appeal or could take away the right of appeal. No court whether superior or inferior or both
combined can enlarge the jurisdiction of a court or divest a person of his rights of revision and
appeal.

Hirendra Nath v. Sudhir Verma AIR 1964 SC 1300: if the court has no inherent jurisdiction
neither acquiescence nor waiver nor estoppel can create it. Such a basic and fundamental defeat
cannot be cured by consent of parties or by the judgment or order passed by a court. The decree
so passed is null and void and can be challenged at any stage.

The court cannot create jurisdiction but can enlarge it. Interpretation of jurisdiction is allowed
but conferring jurisdiction on itself is not allowed.

Kiran singh v chaman Paswan AIR 1954 SC 340: it is a fundamental principle well
established that a decree passed by a court without jurisdiction is a nullity and that its invalidity
could be setup whenever and wherever it is sought to be enforced or relied upon. Even at the
stage of execution and even in collateral proceedings. A defect of jurisdiction strikes at the very
authority of the court to pass any decree and such a defect cannot be cured by consent of parties.

Jurisdiction of a court is a public policy and passed by the parliament and therefore individuals
cannot decide the jurisdiction in their private capacity.

Lack of jurisdiction and irregular exercise of jurisdiction: there is always a distinction

between want of jurisdiction and irregular exercise of jurisdiction. Once it is held that a court has
the jurisdiction to decide a matter and to entertain it, the correctness of the decision given cannot
be said to be without jurisdiction in as much as the power to decide necessarily carries with it the
power to decide wrongly as well as rightly. [Ujjam Bai v. State of UP AIR 1962 SC 1621]. If a
court has the jurisdiction but it is irregularly exercised and the defect does not go to the root of
the matter and the error if any in exercising the jurisdiction can be remedied in appeal or revision
and when there is no such remedy or is not availed of then the decision is final.

Ittyavira Mathai v. Varkey AIR 1964 SC 907: the contention was that the decree passed by the
court is nullity as the suit was time barred and the court did not take into cognizance of this fact
so there was lack of jurisdiction. If the party aggrieved does not take appropriate steps to have
the error corrected, the erroneous decree will hold good and will not be open to challenge on the
basis of it being a nullity. It is regular exercise of jurisdiction and as no steps were taken by the
aggrieved party, no remedy available.

In the case of Anisminic Limited v. foreign compensation commission 1969 (1) All ER 208,
the difference between these two terms is being assimilated.

M L Sethi v. R P Kapur 1972 2 SCC 427, after anisminic case, every error of law is a
jurisdictional error. The distinction between jurisdictional and non jurisdictional error is based
upon a foundation of sand. Much of the superstructure has already crumbled. What remains is
likely to quickly fall away as the courts rightly insist that all administrative actions should be
simply lawful whether or not jurisdictionally lawful.

Basis of deciding a jurisdiction: the court goes by the decision of the jurisdiction only on the
facts mentioned in the plaint. If the plaint is not clear, the court will see that if the written
statement contains any legal objection regarding the jurisdiction. It is a well settled principle that
for deciding the jurisdiction of the civil court, the averments made in the plaint are material or
the jurisdiction of the court should normally be decided on the basis of the case put forward by
the plaintiff in his plaint and not by the defendant in his written statement.

Abdullah bin Ali v. Galappa AIR 1985 SC 577, the supreme court observed that there is no
denying to the fact that the allegations made in the plaint decide the forum. The jurisdiction does
not depend upon the defence taken by the defendants in their written statements.

Bank of baroda v. motibai AIR 1985 SC 545: on the question of jurisdiction one must always
have regard to the substance of the matter and not to the form of the suit. The way in which suit
is brought is not relevant.

Section 9 of cpc: jurisdiction

Kinds of jurisdiction:

 Civil and criminal jurisdiction: ancient, civil deals with the private rights of the
individuals.
 Territorial or local jurisdiction: where is the particular court which hears the particular
type of matter. On the basis of limited geographical limit, certain courts would be
established who would entertain matters pertaining to that geographical area. Every court
has its own local or territorial limits beyond which it cannot exercise its jurisdiction.
These limits are fixed by the legislature or government. The district has the authority to
exercise the jurisdiction within a district, the high court has the authority within the state
where it is situated or any other territory vested to it by law. A court has no jurisdiction to
try a suit for immovable property situated beyond its local limit.
 Pecuniary jurisdiction: cpc provides a court will have jurisdiction only over those suits
the amount of value of the subject matter of which does not exceed the pecuniary limits
 of its jurisdiction. There are certain courts without any pecuniary limit and other
categories may have a pecuniary limit.
 Subject matter jurisdiction: prevalent form of jurisdiction: different courts have been
empowered to decide different types of suits. Certain courts are precluded from
entertaining a certain category of suits. For e.g. presidency courts have no jurisdiction to
try suits for specific performance because specific performance may not preclude any
specific Act.
 Original and appellate jurisdiction: original jurisdiction is the jurisdiction inherent or
conferred upon a court of first instance. Appellate jurisdiction is the power or authority
conferred upon a superior court to rehear by way of appeal of revision of matters which
have been tried and decided by the courts of original jurisdiction.
 Exclusive and concurrent jurisdiction: exclusive jurisdiction is that which confers sole
power on one court or tribunal to try and decide a case. Concurrent jurisdiction is the
jurisdiction which may be exercised by different courts or authorities between the same
parties at the same time over the same subject matter and the option is present to a litigant
to invoke jurisdiction of any such court.
 Legal and equitable jurisdiction: Legal jurisdiction is a jurisdiction exercised by the
common law courts in England while equitable jurisdiction is exercised by court of
equity. In india, the courts are of both law and equity.

Jurisdiction of a civil court:

Section 9, the courts shall have jurisdiction to try all the civil suits of the civil nature excepting
suits of which the cognizance is either expressly or impliedly barred.

Explanation 1: from the inception

Explanation 2: inserted through amendment in 1976.

The conditions of section 9: court have jurisdiction subject to two conditions:

 The suit must be of civil nature: it pertains to private rights and remedies of a citizen as
distinguished from criminal political or religious matter. Thus a suit is of civil nature, if
the principle question therein relates to the determination of a civil right and enforcement
thereof. Political and religious questions are not covered by this expression. E.g. a suit
which the principle question of a caste or religion is not of civil nature but if the principle
question is of civil nature and it incidentally carries the question of caste and religious
rights, it does not cease to be a suit of civil nature and the jurisdiction of the civil court is
not barred. The scope of civil nature is wider than that of civil proceeding. [P M A
Metropolitan v. Moran Mar Marthoma AIR 1995 SC 2001]. In this case, it was held
that the civil suits related to the matter that the jurisdiction of a court is presumed if it
entails within a question of private right or obligation. No court can refuse to entertain
 such matters if the cognizance is not barred. The section 9 would therefore be available in
every case where the dispute was of the characteristic of affecting one’s rights which are
not only civil but of civil nature. All the rights may be civil but not of civil nature.
Constitutional matter, political matter and religious matters are even civil matters but not
of civil nature as they are the elements of public policies.
 The cognizance must have been barred either expressly or impliedly
o Suits expressly barred: a suit is said to be expressly barred when it is barred by
any enactment for the time being in force. It is open to a competent legislature to
bar jurisdiction of civil court with respect to a particular class of suits of civil
nature provided that in doing so it keeps itself within the field of legislation
conferred on it and does not contravene any provision of the constitution. [State
of Vindhya Pradesh v. Moradhwaj Singh AIR 1960 SC 796]. This provision is
also related to the concept of doctrine of separation of powers. Every presumption
should be made in favor of the jurisdiction of a civil court and the provision of
exclusion of jurisdiction must be strictly construed. If there is any doubt about the
ousting of jurisdiction of a civil court, the court will lean to an interpretation
which would maintain the jurisdiction. [Dhula Bhai v. State of M P AIR 1969
SC 78 and Bharat kala Bhandar Pvt. Ltd. v. Municipal Committee Dhaman
Gaon AIR 1966 SC 249]. Further, if the remedy provided by the statute is not
adequate and all questions cannot be decided by the special tribunal, the
jurisdiction of a civil court is not said to be barred. [State of Tamil Nadu v.
Ramlinga Samigal AIR 1986 SC 794].
o Implied Bar: a suit is said to be impliedly barred when it is barred by general
principles of law. Where a specific remedy is there given by a statute, it thereby
deprives the person who insists upon a remedy of any other form than that given
by the statute. [Premier Automobiles v. Kamleker Shantaram AIR 1975 SC
2238]. In this case, it was also held that where an act creates an obligation or
enforces its performance in a specified manner, that performance cannot be
enforced in any other manner. Certain suits, even if of being a civil nature, the
cognizance may be barred by the civil court on the basis of public policy. [Indian
Airlines Corp. v. Sukhdev rao AIR 1971 SC 1828]. The civil courts has no
jurisdiction to adjudicate or enlarge its mandate to take up the relief sought of any
other nature and thereby it acts as an implied bar over such types of relief.

Suits of civil nature are

 Suits relating to the rights to property;

 Suits relating to taking out of religious procession;
 Suits relating to shares in offerings;
 Suit relating to specific performance of contract or damages for breach of contract;
 Suits for restitution of conjugal rights and dissolution of marriage;
  Suits relating to rights to franchise;
 Suits for rents;
 Suits for accounts.

Suits which are not of civil nature

 Suits involving principally caste questions;

 Suits involving purely religious rights and ceremonies;
 Suits for recovery of voluntary payments or offerings;
 Suits against expulsions from caste.

Objection as to exclusion of the jurisdiction of the civil court: a litigant having a grievance of
civil nature has independent of any statute a right to institute a suit in a civil court unless its
cognizance is either expressly or impliedly barred. The exclusion of jurisdiction of civil court is
not to be readily inferred and such exclusions have to be proved beyond reasonable doubts in
order to establish the objection as to jurisdiction. [Dhula Bhai v State of MP AIR 1969 SC 78].

1. Secretary of State v. Mask and co. AIR 1940 PC 105: it was held that it is settled law that
exclusion of jurisdiction of civil courts is not to be readily inferred but that such exclusion must
either be explicitly expressed or clearly implied. It is also well established that even if such
jurisdiciiton is so excluded, the civil courts will have jurisdiction to examine into the cases where
the provisions of the act have not been complied with or the statutory tribunal has not acted in
conformity with the fundamental principles of judicial procedure.

2. seth Radhakrishan v. Administrator Municipal Committee, Ludhiana AIR 1963 SC

1547: a suit in a civil court will always lay to question the order of a tribunal created by a statute
even if its order is expressly or by necessary implications made final, if the said tribunal abuses
its power or does not act under the Act, but in violation of its provision.

3. Dhula Bhai v. State of MP (justice hidaytullah):

Principles laid down as to the exclusion of the jurisdiction;

 Where a statute gives finality to orders of special tribunals, the civil court’s jurisdiction
must be held to be excluded if there is adequate remedy to do what the civil courts would
normally do in a suit. Such a provision however does not exclude those cases where the
provisions of a particular Act have not been complied with or the statutory tribunal has
not acted in conformity with the established principles of judicial procedure.
 Where there is an express bar on the jurisdiction of the court, an examination of the
scheme of the Act to find out the adequacy or sufficiency of the remedies provided may
be relevant but this is not decisive for sustaining the jurisdiction of a civil court. The
reason being that where there is no express exclusion, the examination of the remedies
 and schemes of the particular act and the enquiry laid within to analyze so may be
decisive for the purpose of exclusive of jurisdiction.
 Challenges to the provisions of a particular Act as ultra vires cannot be brought before
tribunals constituted under that Act. Even the high court cannot go into that question
being brought in form of revision or reference against such tribunals.
 When a provision is already declared unconstitutional or the constitutionality of any
provision is to be challenged, a suit is always open. A writ of certiorari may include a
direction for refund of claims if the claim is clearly within the purview of the Act but it is
not a compulsory remedy to replace the suit.
 Where the particular Act contains no machinery for refund of tax collected in excess of
the constitutional limits or is illegally collected, a suit lies.
 Questions of correctness of an assessment cannot be brought through a civil suit if the
Act lays down them to be final and binding or there is an express prohibition under the
particular itself making such suits not maintainable.
 An exclusion of jurisdiction of civil court is not supposed to be readily inferred unless the
conditions above said are applicable to the case or a particular situation.

Another important case is premier Automobiles V. Kamleker Shantaram, it is related to

issue of industrial dispute and issue of conflict of jurisdiction with the civil court

 If a dispute is not an industrial dispute nor does it relates to enforcement of any right,
under the statute or any Act, then the remedy in the civil court.
 If a dispute is an industrial dispute, arising out of a right or liability under the general
or common law, and not under the Act , the jurisdiction of civil court is alternative,
leaving it to the selection of the suitor or person concerned to choose his remedy for
the relief which is competent to be granted in the particular situation.
 If an industrial dispute relates to the enforcement of a right or an obligation created
under the Act, then the only remedy available to the suitor is to get adjudication under
the Act itself.
 If the right which is sought to be enforced is a right created under the Act such as
Chapter V-A then the remedy for its enforcement is either Section 33-C or the raising
of an industrial dispute, as the case may be.

Rsrtc v. krishna kant AIR 1995 SC 1715:

 Where a dispute arises from the general law of contract that is where releifs are claimed
on the claimed on the basis of obligations arising out of such contract may not be said to
be maintainable in the civil courts even if such disputes constitute industrial dispute
within the meaning of section 2(k) of IT Act.
 Where a dispute involves recognition or observance of any rights or obligations created
by the Act, the only remedy is to approach the adjudication forum established under such
Act.
 Where the dispute involves the recognition of rights and obligations of the sister
enactment to the major law enforced which may not provide a separate adjudication
forum for redressal of disputes, the only remedy shall be to approach the forums created
by the major laws, whether the major right is not sought to be enforced through the major
law.
 The power to make reference conferred upon the central government is to be exercised to
effectuate the object of the enactment and hence such discretion is not unguided. The
purpose of this referential rule is to avoid totally frivolous cases on the face of the record
otherwise the power conferred to make a reference is not the power to make a decision.
Though it is observed that government is entitled to examine whether a matter is
frivolous not meriting adjudication.
 The policy going in consistence with the policy of law, the SC has observed that the
parliament should make an enabling provision to enable workman to approach labour
courts without the prior sanction of the government as this would go in a long way to
establish parity between civil courts and the labour courts.
 The policy of law emerging from the industrial Act and their sister enactmensts is to
provide alternative dispute resolution provision which is speedy, inexpensive, informal
and unencumbered by the plethora of procedural laws and at the same time are far more
extensive in the sense that they can grant any relief which they deem fit and appropriate
in a given situation in order to provide substantial justice.

In the further case of Chandrakant v. Municipal Corp of Ahmadabad 2002 2 SCC 542, it
was held that the power of industrial courts is wide enough and such forums are entitled to
grant adequate relief as they think just and appropriate. It is in the interest of the workman
that their disputes including the disputes of illegal termination are adjudicated upon by an
industrial forum.
Doctrine of res subjudice (Section 10): section 10 deal with the stay of civil suits. It provides
that no court shall proceed with the trial of any suit in which the matter in issue is directly and
substantially in issue with a previously instituted suit between the same parties and that the court
in which the previous suit is pending, is competent to grant the relief claimed.

Doctrine of res judicata: Section 11 on the other hand related to a matter already adjudicated
upon. It bars 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.

Two pillars of doctrine of res subjudice

 The matter is directly and substantially in issue;

 The court in which the matter is previously challenged was a competent forum.

Scope of Section 10: the rule of section 10 applies to a trial of a suit and not the institution
thereof. It also does not preclude a court from passing interim order such as grant of injunction,
stay or appointment of receiver etc.

Object of section 10: the object of section 10 is to prevent courts of concurrent jurisdiction
from simultaneously entertaining and adjudicating upon two parallel litigations in respect of the
same cause of action, the same subject matter and the same relief sought. The policy of law is to
avoid two contradictory judgments or possibility of two contradictory judgments on the same
issue with same sort of relief in order to avoid the harassment of the parties and avoid the
conflict of decision from the courts. The doctrine of sub judice bars the trial of the suit and not
the institution thereof. If a judgment has been received by the court the subsequent suit may be
dismissed by this court in which it was it instituted may dismiss the suit thereof. [National
Institute of Medical Health and Neuroscience v. C parmeshawara AIR 2005 SC 242]

Condition for application for section 10:

 There should be two suits one previously instituted and the latter subsequently instituted.
 The matter in issue in the subsequent unit or subsequent suit must be directly and
substantially in issue in the previous suit.
 Both the suits must be between the same parties or between their representatives.
 The previously instituted suit must be pending in the same court in which the subsequent
suit is brought or in any other court in India or in any other court beyond the limits of
India but carried on by the authority of Central Government or they have been before the
Supreme Court of India.
 The court in which the previous suit is instituted must have the jurisdiction to grant the
relief claimed in the subsequent suit.
 Such parties must be litigating under the same title in both the suits.
 The court is having the jurisdiction therefore institution is not barred, only the trial is barred

Section 10 does not take away the power of the court to examine the matters on merits. If the
court is satisfied that subsequent suits can be decided purely on a legal point, it is open to the
court to decide such suit. [Pukhraj D. Jain v. G Gopal Krishna AIR 2004 SC 3504].

Inherent power of the court [Section 151]

Even where the provision of section 10 of cpc do not strictly apply, a civil court has inherent
power under section 151 to stay the suit in order to achieve the ends of justice. A court has
inherent power to consolidate different suits between the same parties in which the matter in
issue is substantially the same. [P. V. Shetty v. B S Giridhar AIR 1982 SC 83.]

Effect of contravention of section 10

A decree passed in contravention of section 10 is not a nullity and therefore cannot be

disregarded in the execution proceedings. [Pukhraj D. Jain v. G Gopal Krishna AIR 2004 SC
3504] hence it the parties waive their right and expressly ask the court to proceed with the
subsequent suit, they cannot afterwards challenge the validity of the subsequent proceedings.
[Muni Lal v. Sarvajeet AIR 1984 Raj 22].

Doctrine of res judicata:

Constructive Res Judicata: the rule of direct res judicata is limited to matters directly or
actually in issue alleged by one party and denied or admitted directly or impliedly by the another
party. The rule of constructive res judicata as engrafted in explanation no. 4 or § 11 suggests that
if a plea could have been taken by a party in a proceeding between him and his opponent, he
should not be permitted to take the same plea against the same party in a subsequent proceeding
with reference to the same subject matter. [State of UP v Nawab Hussain AIR 1977 SC 1680].
This rule helps in raising the bar of res judicata and that is why it is termed as constructive res
judicata which in reality is an aspect or amplification of general principles of res judicata.
[Workman v. Board of Trustees, Cochin Port Trust, AIR 1978 SC 1283]. It was held in this
case that when any matter which might or ought to have been made a ground of defense or attack
in a former proceeding, but was not so made, then such a matter in the eyes of law, to avoid
multiplicity of litigation and to bring about finality within it, is deemed to have been
constructively in issue and therefore is taken as decided.

Forward contruction company v. prabhat Mandal AIR 1986 SC 391: it was held that the
principle underlying explanation 4 is that where the parties have had an opportunity of
controverting a matter that should be taken to be the same thing as if the matter had been actually
controverted and decided. It is true that where a matter has been constructive in issue, it cannot
be said to have been actually heard and decided. It could only be deemed to be heard and
decided.
Devi lal modi v STO AIR 1965 SC 1150, CJI Gajendra Gadkar: the courts dealing with the
issue of infringement of the fundamental rights endeavor to bring all the matters in question in
order to comprehensively decide the situation in hand but it would not be right to ignore the
principles of res judicata all together in dealing with writ petitions filed by the citizens
contravening the violation of their fundamental rights. The consideration of public policy cannot
be ignored while dealing with the issues of fundamental rights. If such a course is allowed to be
adopted where the matters of fundamental rights violation are kept beyond the public policy of
res judicata, the doctrine of finality of judgments by this court would also be materially affected.

Matters which are collaterally or incidentally in issue:

isher Singh v sarvan singh, AIR 1965 SC 948: a matter is collaterally and incidentally in issue
if it is necessary to decide it in order to grant relief to a plaintiff or to a defendant and the
decision on such issue either way does not affect the final judgment of the court.

Res judicata between co-defendants: as a matter of fact res judicata applies between plaintiff
and defendant as well as co-plaintiff and co-defendants. Adjudication will operate as res judicata
between co-defendants if the following conditions are satisfied:

 There must be a conflict of interest between the co-defendants;

 It must be necessary to decide that conflict in order to give relief to the plaintiff;
 The question between co-defendants must have been finally decided;
 The co-defendants were necessary or proper parties in the former suit.

If these conditions are satisfied, the adjudication will operate as res judicata between the co-
defendants. [Sheodan Singh v. Daryao Kunwar, AIR 1966 SC 1332].

Res judicata between co-plaintiffs: if there is a conflict of interest between the plaintiffs and it
is necessary to resolve the same by a court in order to give the relief to a defendant and the
matter is in fact decided, it will operate as res judicata between the co-plaintiffs in the subsequent
suits. [Iftkaar Ahmed v Sayyed Maherban Ali AIR 1974 SC 749]

Proforma Defendant: a defendant to a suit against whom no relief is claimed is called a

proforma defendant. A person may be added as a proforma defendant in a suit merely because
his presence is necessary for a complete and final decision of questions involved in a suit. Since
no relief is sought against him, a finding of the court does not operate as res judicata for the
matter of subsequent suit. [Rahim Bhoy v. Charles Agnew Turner, ILR 1893 (17) Bom 341].
FOREIGN JUDGMENT [SECTION 13 AND 14 OF CPC]

Section 13 and 14 of CPC enact a rule of res judicata in case of foreign judgment which
embodies the principles of private international law that a judgment delivered by a foreign court
of competent jurisdiction can be enforced by an Indian court and will operate as res judicata
between the parties thereto subject to the conditions specified under section 13.

The provisions mentioned under section 13 are not confined in its application only to plaintiffs
but equally entitle a defendant to non- suit the plaintiff on the basis of a foreign judgment.
[Badat Trading Company v. East Indian Trading Company, AIR 1964 SC 538].

Object: the judgment of a foreign court is enforced on the principles that a court of competent
jurisdiction has adjudicated upon a claim, a legal obligation arises to satisfy that claim. The rules
of private international law of each state may differ but through the comity of nations certain
rules are recognized as common to different civilized jurisdictions. Thus as a part of judicial
system of each state, these common rules have been adopted in order to effectuate the judgments
of foreign courts in certain matters through their own mutual recognition or through certain
international convention. [Narsimha Roa v. Venkata Lakshi (1991) 3 SCC 451].

Comity of nations e.g.: common law judgments

Principle of reciprocity: a process of mutual recognition where one country have reciprocated in
recognizing the judgment of one country and it casts the obligation on the other country to
reciprocate the judgment of such other country. Here, one individual nation may recognize other
individual nation or group of nations.

Binding nature of such foreign judgments: A foreign judgment shall be conclusive to any matter
thereby directly adjudicated upon between the same parties or between the parties under whom
they or any of them is litigating subject to the conditions mentioned under Section 13 (a) – (f).
[Satya v. Teja Singh 1975 (1) SCC 120]

 Foreign judgments not passed by a court of competent nature: the principle of

competency is similar to our own judicial system. We would check if the court passing
the judgment has the competent jurisdiction relating to any aspect. It is a fundamental
principle of law that a judgment or order passed by which have no jurisdiction is deemed
to be null and void. Thus a judgment passed by a foreign court must be pronounced by a
court of competent jurisdiction [R Vishswanthan vs. Rukn-un-Mulk Syid Abdul AIR
1963 SC 1] and such a competency may be through both by the law of the state which
establish it and in an international scenario it must be directly adjudicated upon the matter
which is pleaded as res judicata. In the case of Gurdayal Singh v. Raja of Faridkote.
 Foreign judgments not on merits: In order to operate as res judicata, a foreign judgment
must have been given on the merits of the case. A judgment is said to be given on merits
when after taking evidences and applying his mind regarding the truth or falsity of the
 plaintiff’s case the judge decides the case one way or the other. Thus, when a suit is
dismissed on default of appearance of the plaintiff or for non production of document,
even before filing of the written statement are not deemed on merits. [international
woolen mills vs standard wool UK ltd. AIR 2001 SC 2134]
 That the foreign judgment should not be against international or Indian law: a judgment
based upon an incorrect view of international law or refusal to recognize the law of India,
where such law applicable is not conclusive, but the mistake present must be apparent on
the face of the proceedings. [R Vishwanathan v. Rukn-ul-mulk Syid Abdul].
Therefore, a foreign judgment which is found on jurisdiction or on a ground not
recognized by Indian law or goes in contravention of international law, such judgment is
deemed to be in defiance of the law. Hence it is not conclusive on the matters adjudicated
therein and therefore becomes unenforceable in our country. [Narsimha Rao v. Venkata
Laxmi].
 Foreign judgment going against the principles of natural justice: it is the essence of the
judgment of a court that it must be obtained after due observance of the judicial process
i.e. the court rendering the judgment must observe the minimum requirements of
principles of natural justice (which may be that the process must be composed of
impartial persons, fair action without bias, presence of good faith, reasonable notice to
the parties from the court and affording each party adequate opportunity for presenting
his case). a judgment which is the result of bias or elements of mala fide intention are
present on part of the judge, then the entire judgment is deemed to be nullity and the trial
becomes Corum non judice.1
 Foreign judgment obtained by fraud: it is a well established principle of private
international law that if a foreign judgment is obtained by fraud it will not operate as res
judicata. Fraud and justice can never dwell together or fraud and deceit ought to benefit
none. Fraus et jus nunaqum cohabitant.2 Additionally, it was also held that fraud may be
defined as an act of deliberate deception with the design of securing some unfair or
underserved benefits by taking undue advantage of another. In fraud one gains at the cost
of other. Fraud is thus an extrinsic collateral act which vitiates all judicial acts whether in
rem or in personum. The principle of finality of litigation cannot be stretched to the
extent of an absurdity that it can be utilized as an engine of oppression by dishonest or
fraudulent litigants.
 The foreign judgment should be in contravention of Indian Law: even if the principles of
private international law allow such foreign judgments, but those principles goes in
contravention of the Indian law, such judgments cannot be followed in India.

Section 14

1
Gurdayal Singh v Raja of Faridkot; Vishwanathan v sayid abdul.
2
A B Papayya Shastry v. Government of Andhra Pradesh, AIR 2007 SC 1546.
Presumption as to foreign judgments: section 14 declares that the court shall presume upon the
production of any document purporting to be a certified copy of the foreign judgment and that
such judgment was pronounced by a competent court unless the contrary is proven on record.

But SC has held that mere production of the photostate copy of a decree of a foreign court is not
sufficient. It is required to be certified by a representative of a central government or the judicial
officer of the country.3

3
Narsimha Rao v Venkata Lakshi.
 PLACE OF SUING

Suits may be of different types based upon contracts, torts, movable property, immovable
property etc. The jurisdiction of the court to entertain, deal with and decide a suit may be
restricted by a variety of circumstances, including the decision of place of suing. Section 15 to 20
regulates the forum for the institution of suits.

Scheme: section 15 requires the plaintiff to file a suit in the court of the lowest grade competent
to try it. Section 16 to 18 deals with suits relating to immovable property. Section 19 applies to
suits for compensation for wrong to person or to immovable property. Section20 is a residuary
section and deals with power of civil court in relation to suit which has not been covered from
section 15 to section 19.

Pecuniary jurisdiction: every suit shall be instituted in the court of the lowest grade competent
to try it.

Nature and scope: section 15 of the Code refers to the pecuniary jurisdiction of the court. The
rule laid down in the section is a rule of procedure and does not affect the jurisdiction of the
court. Hence, a decree passed by a court of a higher grade cannot be said to be without
jurisdiction.4 It is merely an irregularity covered by Section 99 of the Code and the decree passed
by the Court is not a nullity.5

Object:

 To see that the courts of higher grade shall not be overburdened with the suits
 To afford convenience to the parties and witnesses who may be examined in such suit.

Mode of valuation:

Prima facie it is the plaintiff’s valuation in the plaint that determines the jurisdiction of the court
and not the amount for which ultimately the decree may be passed.6 The valuation of the suit
which is low at the time of institution may not act as an impediment on the powers of the court to
grant greater damages.

Powers and duties of the court in such valuations:

 If the plaintiff deliberately undervalues or overvalues the claim for the purpose of
choosing the forum, the plaint cannot be said to be correctly valued and it is the duty of
the court in such circumstances to return the plaint to be filed in proper court.

4
Gopal v Shamrao, AIR 1941 Nag 21.
5
Kiran Singh v. Chaman Paswan, AIR 1954 SC 340.
6
Kiran Singh v. Champan Paswan,
  But if the court is unable to come to a finding regarding the correct valuation of the
subject matter, the court has to accept the valuation computed on behalf of the plaintiff.7

Territorial jurisdiction:

 Types of suit: for the purpose of territorial jurisdiction of the courts, suits may be
divided into four categories:
o Suits in respect of Immoveable property (Sec 16-18): clauses (a) to (e) of section
16 deals with suits for immovable property under 5 categories:
 Suits for recovery of immovable property;
 Suits for partition of immovable property;
 Suits for foreclosure (in relation to mortgage);
 Sale or redemption in the context of mortgage or any other charge;
 Suits for determination of any other right or interest in immovable
property;
 Suits for torts committed against immovable property.

These suits must be filed in the courts within the local limits of whose jurisdiction the
property is situated. section 17 is called contingency provision which says that where a
suit is to obtain a relief in relation to a damage in torts to the immovable property situated
within the jurisdiction of different courts, such suit may be filed in the court within the
local limits of whose jurisdiction any portion of the property is situated provided that it
does not breach the pecuniary jurisdiction of such court.

o Movable property (19)

 A suit for wrong to movable property may be brought at the option of the
plaintiff either at the place where the wrong is committed or where the
defendant resides, carries on business or personally works for gain.
 Where such wrong consist of a series of acts, a suit can be filed at any
place where any of the acts has been committed similarly where a
wrongful act is committed at one place and the consequence ensue at
another place, a suit can be instituted at the option of the plaintiff where
the cause of action has arisen or the consequences has ensue.
o Suits for compensation for wrong committed (torts) (19)
 A suit for compensation for wrong or a tort to a person may be instituted
at the option of the plaintiff either where such wrong is committed or
where the defendant resides or where he carries on business.
o Other types of suits (residuary suits) (20): It provides for all the suits which have
not been covered through sec 16 to 19. All such suits may be filed at the option
of the plaintiff in the following manner:

7
Tara Devi v. Shir Thakur Radha Krishna Maharaj, AIR 1987 SC 2085.
  Where the cause of action wholly or partly arises;
 Where the defendant resides or carries on business or personally works
for gain;
 Where there are two or more defendants, any of them resides or carries on
business may be added to the suit and the plaintiff may at his option
 Either through the leave of the court; or
 Through the defendants who do not reside at that place, may
acquiesce in such institution.

Forum shopping: it is a well settled principle of law that consent can neither confer nor can take
away the jurisdiction of a competent court and the same principle is applicable while oustering
the jurisdiction of the court and by no means of consent, waiver, or estoppel can stop the
jurisdiction of the competent court. But where two or more courts have jurisdiction to entertain a
suit, an agreement by the parties to submit to the jurisdiction of one of such courts to the
exclusion of other courts is valid, binding and enforceable.8

ESSENTIALS OF THE SUIT

There are four essentials of a suit:

 Opposing parties to a suit;

 Subject matter in dispute;
 Cause of action; and
 Relief sought.

Parties to the suit (Order 1): order I deals with the parities to a suit. It also contains provisions
for addition, deletion and substitution of parities through joinder, misjoinder and non-joinder of
parties.

Joinder of parties: the question of joinder of parties may arise either as regards to the plaintiff or
as regards to the defendants. An act may be done by a single individual and may affect another
individual. The question of joinder of parties arises only when an act is done by two or more
persons or it affects two or more persons.

Joinder of plaintiffs (rule 1): it states that all persons may be joined in one suit as plaintiffs in the
fulfillment of the following two conditions:

 The right to relief alleged to exist in each plaintiff arises out of the same act or
transaction; and

8
Union of India v. Oswal Woolen Mills Ltd., AIR 1984 SC 1264; Morgan Stanly Mutual Fund v. Kartik Das,
(1994) 4 SCC 225; ONGC v. Utpal Kumar Basu, (1994) 4 SCC 711.
  The case is of such a character that, if such persons brought separate suits, any common
questions of law or fact would arise.9

The word ‘and’ between clauses (a) and (b) makes it clear that both the above conditions should
be fulfilled which means that they are cumulative and not alternative.

Joinder of defendants (rule 3): it states that all persons may be joined in one suit as defendants if
the following two conditions are satisfied:

 The right to relief alleged to exist against them arises out of the same act or transaction,
and
 The case is of such a character that, if separate suits were brought against such persons,
any common question of law or fact would arise.

The underlining object of rule 3 is to avoid multiplicity of suits and needless expenses.10

Necessary party: it is one whose presence is indispensible to the constitution of the suit, against
whom the relief is sought and without whom no effective order can be passed.

A proper party is one in whose absence an effective order can be passed but whose presence is
necessary for complete and final decision on the question involved in the proceedings.11 This
case also lays down two tests for determining the question whether a particular party is a
necessary party is necessary party to a proceeding: 1. There must be a right to some relief in
respect of the question involved in the proceedings; 2. It should not be possible to pass an
effective decree in absence of such a party.

If there is a dispute or a cause of action between certain persons, all of such persons becomes
necessary parties.

Non Joinder and misjoinder of parties [Rule 9]: where a person who is a necessary party or a
proper party to a suit has not been joined as a party to the suit, it will become the case of non
joinder. On the other hand, if two or more persons are joined as plaintiffs and defendants in one
suit, in contravention of rule 1 and rule 3 of order 1, and they are neither necessary or proper
parties, then it will become the case of misjoinder of parties.

The general rule is that a suit cannot be dismissed only on the ground of non joinder or
misjoinder of parties nor a decree passed by a competent court on merits will be set aside on the
ground of misdescription of the defendant. However, this rule does not apply in case of non
joinder of a necessary party.12

9
Krishna Laxman v. Narshinghrao Vithalrao, AIR 1973 Bom 358.
10
Ishwar Bhai v Harihar Behera, (1993) 3 SCC 457.
11
Kasturi vs. Iyyam Perumal, AIR 2005 SC 2183.
12
Diwakar Srivastav v. State of MP, AIR 1984 SC 468.
Objections as to non joinder or misjoinder of the parties: rule 13, order 1: all the objections on
the ground of non joinder or misjoinder of parties must be taken at the earliest possible
opportunities. Otherwise they will be deemed to have been waived, but if the objection as to non
joinder has been taken by the defendant at the earliest stage and the plaintiff declines to add the
necessary parties, he cannot be subsequently allowed in appeal to rectify the error in appeal by
applying for amendments.13

Adding or substituting or striking out parties Rule 10 Order 1: Rule 10(1): if after the filing
of the suit, the plaintiff discovers that he cannot get the relief, he seeks without joining some
other person as a plaintiff and also where it is found that some other person and not the original
plaintiff is entitled to the relief an application for addition or substitution of the plaintiffs can be
made. To bring a case under this rule, three conditions must be satisfied:

 The suit has been filed in the name of a wrong person as a plaintiff;
 Such mistake must be bonafide; and
 The substitution or addition of the plaintiff is necessary for determination of the real
matter in dispute.14

Object of this rule: to save honest litigants or plaintiffs believing in bona fide maintainability of
their claims being non-suited on a mere technical ground. The policy is to decide the real
question in controversy between the parties bypassing the mere technical objections for defeating
a just and honest claim by discouraging the contest purely on technicalities.15

Striking out or adding the parties, Rule 10 (2): this rule empowers the court to add any person
as party to the suit on any of the two grounds alternatively:

 Such person ought to have been joined as a plaintiff or as a defendant or is not so joined;
or
 Without his presence the question involved in the suit cannot be completely heard or
decided.16

This provision confers a wider discretion on the court to meet with every case of defect of parties
and is not affected by the inaction of the plaintiff to bring the necessary parties on the record.
Adding of parties is a judicial discretion and has to be exercised judiciously.17

For exercising the powers under Rule 10(2), the court has to base its decision on sound judicial
principles keeping in mind all the facts and circumstances of the case. The two considerations
which the court should follow while exercising such powers are:

13
Naba Kumar v. Radha Kumar, AIR 1931 PC 229.
14
Raziya Begum vs Sahebjadi Amwar Begum.
15
Anil Kumar v. Shiv Nath, (1995) 3 SCC 147.
16
Raziya Begum vs Sahebjadi Amwar Begum; Anil Kumar v. Shiv Nath, (1995) 3 SCC 147.
17
Ramesh Hirachand vs. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524.
  The plaintiff is dominus litis in the case, which means he is the best judge of his real
interest in the case and normally the court should not compel him to fight against a
person whom he does not want to fight;
 If the court is satisfied that the presence of a particular person is necessary to effectively
and completely adjudicate all the disputes between the parties irrespective of the wishes
of the plaintiff the court may exercise the power and join a person as party to the suit.18

Raziya Begum vs Sahebjadi Amwar Begum: SC has laid down few principles regarding the
powers of the court to add on the parties to the suit under rule 10(2):

 The question of addition of parties under rule 10 of order 1 is generally not of initial
jurisdiction of the court but is a question of judicial discretion (this is not the way of
assuming jurisdiction) which has to be exercised in view of all the facts and
circumstances of the particular case but may raise controversies in determining the
powers of the court;
 In a suit relating to a property, a person may be added as a party if he has a direct interest
in the subject matter as distinguished from a commercial interest;
 Where the subject matter of litigation is declaration as regard to the status or legal
character, the rule of direct interest may be relaxed in a suitable case where the court is of
the opinion that by adding the party it would be in a better position effectually and
completely to adjudicate upon the controversy.

In 2nd point, it was a suit for ownership and granting the possession of the immovable property,
in the 3rd point, it is only a suit for declaration and therefore commercial interest can be included.
Suits under 3rd point is not for the rights over the property, its only for getting a declaration.

 The rule of exercising the discretionary power should be exercised cautiously in the cases
of section 42 and 43 of the specific relief act.

REPRESENTATIVE SUIT [ORDER 1, RULE 8]

Rule 8 is an exception to the general principle of civil litigation where it provides that when there
are number of parties similarly interested in the suit, one or more of them, can with the
permission of the court, or upon the directions from the court, may sue or be sued on behalf of
themselves and others.19

A representative suit is filed by or against one or more persons on behalf of themselves and
others having the same interest in the suit. Either the parties are affected by the same cause of
action or are similarly affected by the acts of other parties.

18
Ramesh Hirachand vs. Municipal Corporation of Greater Bombay, (1992) 2 SCC 524; Raziya Begum vs
Sahebjadi Amwar Begum.
19
Diwakar Srivastav vs. State of MP.
Class Action Suit: used in the US jurisdiction.

Difference between class action suit and representative suit??

Object of representative suit: to facilitate the decisions involving large number of persons who
are similarly interested without recoursing to the ordinary procedure of CPC. This helps in
saving time and expenses and ensures a single comprehensive trial of all the questions involving
such numerous persons and avoiding the harassment of parties through multiplicity of suits.20

The representative suit is an enabling provision, which allows one to use this provision, but it is
not mandatory to get a suit represented. Order 1 Rule 8 is an enabling provision, it neither
compels an individual to represent a body of persons having the same interest not it debars a
member of the community from maintaining a suit in his own right in respect of a wrong done to
him.21

Conditions to be fulfilled to make a suit representative

 The parties must be numerous, it is not required that the number of persons should be
clearly certain nor it amounts to the fact that numerous will represent innumerable.
Therefore the only question is that the criterion of numerous shall be decided by the
court based upon the facts of each case while taking into account the nature of
controversy and subject matter in dispute;22
 They must have same interest in the suit: the term same interest means that an interest
must be common to all of them or they must have a common grievance against which
they want to seek redressal. Therefore, a community of the interest is essential and acts as
condition precedent for bringing a representative suit.23
 The permission must have been granted or directions must have been given by the court;
and
 Notice must have been issued to the parties whom it is proposed to represent in the suit.

Frame of the Suit (Order 2):

Every suit must include the whole of plaintiff’s claim in respect of cause of action so that as far
as practicable that all matters in dispute between the parties shall be disposed off finally. It is the
duty of the court to see whether it was practicable on part of the plaintiff to include the entire
claim which he had either omitted or intentionally relinquished. [Order 2, Rule 1]

Under Order 2, Rule 2, if a plaintiff fails to bring the cause of action or he has omitted or
intentionally relinquished a portion of the claim then he shall not be allowed afterwards for

20
Kodia Gounder vs. Velandi Gaunder, AIR 1955 Mad 281.
21
T. N. housing Board v. T. N. Ganapathy, AIR 1990 SC 642.
22
Hasan Ali v. Mansur Ali, AIR 1948 PC 66.
23
Kodia Gounder vs. Velandi Gaunder, AIR 1955 Mad 281; T. N. housing Board v. T. N. Ganapathy, AIR 1990 SC
642.
invoking the portion so omitted or relinquished. The object of this rule is to protect the defendant
from being vexed twice for the same cause, it is a counter willing measure against two types of
malpractices being practiced in the court which are:

 Splitting up of claims;
 Splitting up of remedies24

It was held in these cases that the rule 2 of order 2 provides that a suit must include the whole of
the claim which the plaintiff is entitled to make in respect of the cause of action on which he sues
and if he omits to sue for any relief to which his cause of action would have entitled him, he
cannot claim it through a subsequent suit as the object of this statutory rule is to prevent
multiplicity of suits.

in the case of Deva Kumar vs Ishwar Chand, 1995 6 SCC 733, it was held that Order 2 Rule 2 is
based a cardinal principle that a defendant should not be vexed twice for the same cause.

Order 2 rule 2 and res judicata

The provision of order 2 rule 2 are penal in nature and therefore should be construed strictly.
This provision is highly technical and deprives a party to a legitimate right which was otherwise
available to him. Hence the plea of res judicata in context of order 2 rule should not be highly
upheld and such plea should be raised at the earliest opportunity.25

Conditions of application of order 2 rule 226

 The second suit which is brought must be in respect of same cause of action as that on
which the previous suit was based;
 In respect of that cause of action, the plaintiff was entitled to more than one relief;
 Being thus entitled to more than one relief the plaintiff without the leave of the court
omitted to sue for the relief for which the second suit has been filed.

Tests laid down in Mohammed Khalil vs. Mahboob Ali, AIR 1949 PC 78.

 The correct test of the cases falling under Order 2 Rule 2 is whether the claim in the new
suit is in fact founded upon a cause of action distinct from that which was the foundation
of the former suit.
 The cause of action means every fact which will be necessary for the plaintiff to prove if
traversed in order to support his right to judgment.
 If the evidence to support the two claims is different then the causes of action are also
deemed to be different.

24
Naba Kumar vs. Radha Shyam, AIR 1931 PC 239; Mohammed Khalil vs. Mahboob Ali, AIR 1949 PC 78.
25
Gurubux Singh v Bura Lal, AIR 1964 SC 1810.
26
Ibid.
  The casues of action in the two suit, may be considered to be the same if in substance
they are identical and merely the language of presentation is different.
 The cause of action has no relation whatsoever to the defence that may be set up by the
defendant nor does it depend upon the character of the relief prayed for by the plaintiff. It
refers to the media upon which the plaintiff asks the court to arrive at a conclusion in his
favor.

Order 2 Rules 4 and 5: Joinder of Claims

Rule 4 lays down that in the suit for recovery of immovable of immovable property, a
plaintiff is not entitled to join any claim without the leave of the court except:

 Claims for mesne profits;

 Arrears of rent in respect of the property claimed or any part thereof.
 Claims for damages for breach of contract under which the property or ant part
thereof is held.
 Claims in which the relief sought is based on the same cause of action in the ongoing
suit.

Rule 5, which deals with the suit by or against three classes of persons, i.e. executors,
administrators and legal heirs. It provides that no claim by or against such persons in their
representative capacity shall be joined with the claims by or against them personally in the same
suit except:

 Where the personal arise with reference to the estate he represents;

 Where he was entitled to or liable for those claims jointly with the deceased whom he
represent.

The main object of this rule is to prevent a representative from inter mingling the assets of his
testator with his own estates.

Order 4: institution of the suit

 Order 4 rule 1 read with section 26 talks about presentation of plaint. It lays down that
every suit must be instituted by the presentation of the plaint in duplicate or in any other
manner as prescribed by the court by the plaintiff himself or by his advocate or through
his recognized agent.
 A plaint must be presented to the court or any such officer as is appointed in that behalf.
The presentation of the plaint takes place in the general working days during the working
hours.
 Every plaint must contain necessary particulars like the name of the court, the title, the
cause of action, and the relief sought etc.
  Particulars of every such suit will have to be entered in the registers of the civil suits as
maintained by each court.
 If a suit is instituted by an indigent (whose property is valued below or equal to rs. 1000)
person or on behalf of minor or on behalf of dead person, then a statement giving the
effect to the same must be included in the plaint.

Civil Pleading (Order 6)

Order 6, Rule 1: pleadings include both plaint and written statement, in other words, pleadings
are the statements in writing drawn up and filed by each party to a case stating what his
contentions will be at the trial and giving all such details as his opponent needs to know in order
to prepare his case in answer.

Objects of the Pleadings: the whole object is to bring parties to definite issues and to diminish
and delay the expenses and to prevent surprises at the stage of hearing. It helps in ascertaining
the real disputes between the parties, thereby narrowing down the area of conflict and precluding
one party from taking the other by surprise so as to prevent miscarriage of justice.27

In Ganesh Trading Company vs Moji Ram,28 it was held that pleadings in civil cases are meant
to give each side intimation of the case of the other so that it may enable the court to determine
the real issue at hand between the parties.

In Virendra Kashinath vs. Vinayak Joshi,29 it was held that the object of pleadings is two folds:

 To afford the other side intimation regarding the particular facts of his case so that they
may be met by the other side;
 To enable the court in deciding the actual dispute or controversy emerging out of the
factual proposition.

Basic Rule for Pleadings (Order 6, Rule 2):

 Sub Rule 1, Rule 2: every pleading shall contain and contain only a statement in a
concise form of the material facts on which the party pleading relies for his claim or
defence, as the case may be, but not the evidence by which they are to be proved.
Additionally, no law is even pleaded.
 General principles governing pleadings:
o Pleadings should state facts and not law
 Kedar Lal vs Hari Lal and Ram Prasad vs State of M.P.: The construction
of pleadings can be summarized as “plead facts and not law, which is
based on a principle that a judge if bound to apply the correct law even if

27
Dhrob vs. Holdsworth.
28
AIR 1978 SC 484.
29
AIR 1999 SC 162.
 incorrect law if pleaded by a party, however, a mixed question of fact and
law should be specifically raised or pleaded. For e.g. the existence of a
custom or usage or establishing the intention of a party is termed as
question of facts.”
o The facts above stated must be material facts (those bundle of facts which the
parties has to prove to establish one’s case and which gives right to the relief or
acts as valid shield and defence). Additionally, other facts which help in
establishing such important facts are even included;
 Udhaw Singh vs. Madhav Rao Scindia:
 Virendra lal vs. stapal singh: all the primary facts which are to be proved
at the trial by a party to establish the existence of a cause of action or his
defence is termed as material facts. It is absolutely essential that all the
basic and primary are pleaded and established by the party beyond
reasonable doubt, however there exists a differnce between material facts
and particulars where non supply of material facts may entail the dismissal
of the suit but non supply of essential particulars may not lead to the same
consequence as material facts are essential to be proved and material
particulars may be refined or amended even during the stage of pleadings.
o Pleadings should not state the evidences (annexure can be included just to
substantiate the claim)
 R M Shashadri vs. G BaSant Pai: the pleadings should contain a statement
of material facts which the party relies but not the evidences through
which those facts are to be proved. There are two types of facts:
 Facta probanda: the facts required t o be proved (material facts)
 Facta probantia: the facts by means of which material facts are
proved (particulars or evidences).
o The facts stated in the pleadings should be in concise form
 Charan lal Sahu vs. Gyani Zail Singh: all the material facts must be stated
in summary form according to the nature of the case. Immaterial
averments and unnecessary details must be omitted and material
allegations and necessary particulars must be included. if due care is taken
through systematic process pleadings can be saved from tautology.
 Other rules of pleadings:
o Where misrepresentation, fraud or breach of trust or undue influence are pleaded
in the pleadings, then particulars with dates and time should be stated specifically.
 Dishnu dev v. sarogani rai: in the cases of fraud, undue influence or
coercion, the parties pleading it must set forth full particulars and the case
can only be decided on the basis of the particulars as laid down in the
court.
 o The object of the pleading is to narrow the controversies so as to decide the issues
with precision so as to give proper notice and including all the essential
particulars within the notice itself to be submitted to either parties of the case.
Therefore, the particulars stated in the pleadings should be sufficient and specific
and the court should specifically insist upon the particulars before proceeding
with the trial of the suit.
o The performance of condition precedent need not be pleaded as it is already
implied in the pleadings. Non performance of the condition precedent however
must be specifically pleaded and included by the parties.
o Departure from the pleadings is to permissible and except by way of amendment,
no party can raise any ground of claim or any allegation of fact inconsistent with
previous pleadings.
o A bare denial of contract by the opposite party will be construed only as a denial
of factum of contract and not the legality or enforceability of the contract.
 Kalyanpur Lime Works ltd. v. State of Bihar AIR 1954 SC 165:
o Documents need not be set out at length in the pleadings unless they are deemed
material.
o Whenever giving of notice to any person is necessary or a condition precedent,
pleadings should only state regarding giving of such notice without setting out the
form or precise terms or such notice or the circumstances from which it is to be
inferred unless they are material.
o Implied contracts or relations between persons may be alleged as a fact and the
series of letters conversations and the circumstances from which they are to be
inferred should be pleaded generally.
o Facts which the law presumes in favor of a party or as to which the burden of
proof lies upon the other side need not be pleaded.
o Every pleading has to be signed by the party or by one of the parties or his
pleaders.
o Pleadings should supply the detailed address of the parties contending as well as
the address of the opposing parties.
o Every pleadings should be verified on affidavit by the party or one of the parties
or by a person acquainted with the facts of such facts.
o Every pleading must be divided into paragraphs numbered consecutively and each
new averment or allegation or defence should be stated in separate paragraphs and
any date or amount has to be stated in both figures as well as words.

Alternative pleadings: it conveys a choice on behalf of a party to a litigation and may include in
his pleadings two or more facts or claims or reliefs which may act as an alternative to the
previous relief.
Inconsistent pleadings: it means mutually repugnant, contradictory and destructive or
reconcilable pleadings due to which both the previous or present pleading may not stand in the
court of law because acceptance of one pleading necessarily implies abrogation or abandonment
of the other set of pleadings.

The main object of allowing alternate pleading in one litigation is to obviate the necessity of
another litigation and to decide the controversy in one litigation comprehensively and the code of
civil procedure supports the alternative set of pleadings.30

How to construct pleadings: strict and specific; it is uniformly stated or held by the Courts that
pleadings in India should be construed strictly in relation to the actual relief sought under the
statute but should not be construed strictly in relation to the form of pleadings thereof and for the
same it may be interpreted liberally. In Madan Gopal vs. mani Ram, AIR 1976 SC 461, where it
was held that the pleadings in India are loosely drafted in the courts and the courts should not
scrutinize the pleadings with such meticulous care so as to debar the genuine claims on trivial or
technical claims. In Ram Swaroop vs Bishnu Narayan Inter college, it was held that pleadings
should receive a liberal contruction so as to facilitate the cause of justice and pedantic (narrow
and technical) approach should not be adopted to defeat the justice on hair splitting
technicalities. It is not desirable to place higher emphasis on form but substance should be
looked into specifically.

Striking out pleadings (Rule 16, Order 6): the court is empowered to strike out any pleading if it
is unnecessary, scandalous, frivolous or vexatious or tends to prejudice or embarrass or delay the
fair trial of the suit or is otherwise deemed as an abuse of the process of the court. In vijay kumar
vs tota singh, 2006 (13) SCC 353, the conditions where court could use rule 16 were laid down:

 Where such pleading is unnecessary, scandalous, frivolous;

 Where such pleading tends to prejudice or embarrass or delay the failr trial of the suit
 Where such pleading is otherwise deemed as an abuse of the court proceedings.

The power to strike down pleadings is extraordinary in nature and must be exercised by the court
with extreme care, caution and circumspection.

Rule 14-15, Order 6: signature and verification of pleadings

As a general rule, every pleading must be signed by the party or by one of the parties or by his
pleader. But if the party is unable to sign the pleadings, it can be signed by any person so
authorized by him. The verification must be signed on an affidavit by the person verifying and
must contain the date on which and the place at which it was signed. The person verifying the
pleading should also furnish an affidavit in support of his pleadings. It is a well settled principle
that a party can be permitted to adduce evidence on the basis of the case pleaded by him in his

30
Arundhati Mishra vs. Ram Charitra Panday, 1994 (2) SCC 29.
pleading and he cannot setup a case inconsistent with his own pleadings. The purpose for such
rule is two folds:

 To appraise the opposite party distinctly and specifically of the case he is called upon to
answer so that he may property prepare his defence and may not be taken by surprise;
 To maintain an accurate record of the cause of action as a protection against second or
subsequent proceeding founded upon the same question of law.31

An objection to pleading should be taken at the earliest. If at an appropriate stage such an

objection is not raised, it is deemed to have been waived as it is based on the principle that in
such cases it cannot be held that a prejudice has been caused to the party by raising a plead at a
belated stage.

Amendment of pleadings [rule 17-18]: as a general rule material facts and necessary particulars
must be stated in the pleadings and the decision of the court cannot be based on the grounds
outside the pleadings but if the party comes up with a fresh information in order to deliberate the
real controversy at hand, it necessitates the reshaping of claims and defence.

The object of the rule is that the court should try the merits of the case that comes before them
and should consequently allow all amendments that may be necessary for determining the real
question in controversy between the parties provided it does not cause injustice, prejudice to the
other side. The court while doing complete justice may allow such amendment applications in
the larger interest of the parties for meeting the relevant criterions of litigation.

Rule 17 confers a wider discretion on the court to allow either party to amend his pleading at any
stage of the proceeding on such terms as it may deem fit. Such discretion however should be
exercised judicially and inconsonance with well established principles of law. The provision of
rule 17 is not exhaustive and wherever rule 17 does not apply, resort can be taken to section 151.

Leave to amend when can be granted:

The amendment of pleadings application can be granted so as to enable the real question in issue
between the parties to be raised in the pleadings therefore, an amendment application can be
raised in following circumstances:

 Whether the amendment is necessary for the determination of real question in

controversy;
 Can be amendment by allowed without causing injustice to the other side.

The first condition must be satisfied before approving the amendment application as the cardinal
test for granting amendment remains ‘the real controversy in issue.’ No amendment should be
allowed when it does not satisfy this cardinal test.32

31
Om prakash vs. ram kumar, AIR 1991 SC 409.
Leave to amend when can be refused:

The power to grant amendment is a discretionary power as well as a legal power and no legal
power can be exercised improperly, unreasonably or arbitrarily. In Ganga Bai vs. Vijay Kumar
AIR 1974 SC 1126, it was held that the power to allow an amendment is wide and discretionary
and such discretionary power should be governed by judicial considerations as wider the
discretion, greater ought to be the care and circumspection on part of the court. Leave to amend
can be refused in the following circumstances:

 Leave to amend will be refused where the amendment is not necessary for the purpose of
determining the real question in controversy between the parties;
 Leave to amend will be refused if it introduces a totality different, new and inconsistent
case or changes the fundamental character of the suit or defence; 33 the test as to whether
the amendment should be allowed is whether or not the party can amend his pleading
without placing the other side in a position from which he cannot be recouped in relation
to costs or otherwise.
 Where the effect of the proposed amendment is to take away from the other sidea legal
right already accrued in his favor;34 Charan Das vs. Amir khan AIR 1921 PC 50, the
full power to make an amendment on behalf of the court can not be disputed, those
power should be exercised in a way that it does not take away from the defendant a legal
right which has accrued to him by lapse of time but there may be cases or circumstances
where such considerations are outweighed by the special circumstances of the case itself.
 Where the application for amendment is not made in good faith because as a general
rule, leave to amend ought not to be granted if the applicant has acted malafide.35

Principles regarding amendment of pleadings:

 All the amendments should be allowed which are necessary for determination of real
controversy in the suit;
 The proposed amendment should not alter and be a substitute for the cause of action on
the basis of which the original litigation was filed or raised;
 Inconsistent and contradictory allegations in negation to the admitted position of facts or
mutually destructive allegations should not be allowed to be incorporated by means of
amendment;
 Proposed amendment should not cause injustice or prejudice to the other side which
cannot be compensated by way of costs;
 Amendment of a claim or relief barred by time should not be allowed;

32
Kishan das vs. rachappa vithoba, 1909 ILR Bom.
33
Modi Sewing and Weaving Mills co. ltd. vs. Ladha Ram, (1976) 4 SCC 320; A.K. Gupta and Sons ltd. Vs
Damodar valley corporation, AIR 1967 SC 96.
34
Pirgonda Patil vs. Kalgonda Patil; A.K. Gupta case.
35
Ram Manohar vs. National Building Material Supply, 1969 1 SCC 869; Pirgonda Patil vs. Kalgonda Patil.
  No amendment should be allowed which amounts to or results in defeating a legal right
to the opposite party on any account (lapse of time, etc.)
 No party should suffer on account of technicalities of law and the amendment should be
allowed to minimize the litigation between parties to the extent possible.
 The delay in filing petition for amendment of pleadings should be properly compensated
for by way of costs.
 Error or mistake which is not fraudulent should not be made a ground for rejecting the
application for amendment of pleadings.
 The principles mentioned herein are illustrative and not exhaustive.

Doctrine of relation back: an amendment is aiming at the main course of pleadings.

Amendment would deem to take an effect from the date when the original suit is filed and not
form the day on which such amendment is accepted. This doctrine refers to the fact that normally
an amendment relates back to the original course of pleadings but the doctrine is not absolute,
unqualified or of universal application. In appropriate cases, the court may order the amendment
to take an effect from the date of application or from the date of approval and not from the date
the plaint or written statement was actually presented.36

Failure to amend the pleadings (Rule 18)

If a party who has obtained an order to leave to amend does not amend accordingly within the
time specified for that purpose in the order or if no time is specified then within 14 days from the
date of such order, he shall be permitted to amend, after the expiry of which, he may not be
subsequently allowed to amend. The rule is discretionary in nature and the court may on its own
extend the time line or may allow a subsequent amendment depending upon the facts and
circumstances of the case.

ORDER 7 [PLAINT AND WRITTEN STATEMENT]

Rule 1 to 8: particulars of plaint

 The name of the court in which the suit is to be brought;

 The name, description and place of residence of the plaintiff;
 Name, description and place of residence of the defendant;
 Where the plaintiff or defendant is minor or a person of unsound mind, then a statement
of that effect;
 Facts constituting the cause of action and the time when it arose;
 The facts showing that the court have requisite jurisdiction;

36
Brij Kishore vs. Mushtari Khatoon; Vishambhr vs. Lakshmi Narayan, AIR 2001 SC 2607 (exception to the above
doctrine).
  Statement of the value of subject matter of the suit for calculation of requisite court fees
and for pecuniary jurisdiction of the court;
 The relief claimed by the plaintiff, simply or in alternative;
 Where the plaintiff files the suit in a representative capacity, the facts showing that the
plaintiff have actual existing interest in the subject matter and that he has taken steps to
realize such interests;
 Where the plaintiff has allowed a set off or relinquished a portion of his claim, the
amount so allowed or relinquished;
 Where the suit is for recovery of money, the precise amount claimed by the plaintiff;
 Where the suit if for accounts or mesne profits or for movables in possession of the
defendant, the approximate amount or value thereof;
 Where the subject matter of the suit is immovable property, a description of the property
making it sufficiently identifiable;
 The interest and liability of the defendant in the subject matter of the suit;
 Where the suit is time barred, the ground upon which exemption from law of limitation is
claimed;
 Bhagwati Prasad vs Chandramaul, AIR 1966 SC 735, it was held that the general rule is
that the relief should be founded upon the pleadings made by the parties in either written
or oral form. To allow one party to rely upon a matter in respect of which the other party
did not lead evidence and hence had no opportunity to lead evidence would introduce
considerations of prejudice and in doing justice to one party, the court cannot do injustice
to another. But the suit cannot be dismissed merely on the ground that the plaintiff has
claimed a bigger relief than he is entitled to as the court may on its own grant a relief for
which the plaintiff is sufficiently entitled.

Rule 9: admission of plaint

It provides for filing of copies of the plaint by the plaintiff and also requires him to pay
requisite court fees as well as the fees for the service of summons within seven days of the
date of such admission.

Return of plaint, rule 10 and 10 B

Where at any stage of the suit the court finds that it has no jurisdiction either territorial or
pecuniary or in relation 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.

The judge returning the plaint should make endorsements on it regarding:

 The date of presentation;

 The date of return;
 The name of the party presenting it;
  Reasons for return of plaint.

Rejection of plaint Rule 11

The plaint will be rejected in following cases:

 Where the plaint does not disclose the cause of action;

 Where the relief claimed is undervalued;
 Where the plaint is insufficiently stamped;
 Where the suit is barred by law;
 Where the plaint is not filed in duplicate;
 Where there is non compliance with statutory provisions of this code;
 Any other ground

Procedure for rejection of plaint

Where a plaint is rejected by the court, the judge will pass an order to that effect and will also
record the reasons for such rejections.

Effect of rejection: Rule 13

If the plaint is rejected in any of the above grounds, the plaintiff is thereby preclude from
presenting a fresh plaint on the same cause of action. Such rejection order is appealable

Documents submitted along with the plaint Rule 14-17

a document upon which the plaintiff seeks to rely or has relied is specifically mentioned that
it ought to have been produced in the court along with the plaint, however this provision does
not apply to following documents:

 the documents which are reserved for the purpose of cross examination of the
defendant’s witnesses
 .the documents which are handed over to the witnesses merely for the purpose for
refreshing their memory.

Summons [section 27-29 read with order 5]

A summon is a document issued from the office of court of justice calling upon the person to
whom it is directed to attend before a judge or officer of the court for a certain purpose whereby
an intimation is sent requiring him to appear before the court.

Object: where a suit is filed by the plaintiff against the defendant seeking a relief against him, the
defendant must be given an opportunity as to what he wants to contend in relation to the case so
instituted. This goes in consonance with the principles of natural justice where it suggests that
no one should be condemned unhurt. [audi altrem partem]. It is however the discretion of the
court to make a person appear in a person through any other mode. If the summon is not served
to the defendant, it will not bind him for the purpose of decree.

Essential particulars of the summon (Rule 1 and 2)

A summon issued from the court shall be signed by the judge or such officer as appointed by him
and shall be sealed by the seal of the court and in case of summon being served to the defendant,
it shall be accompanied by the copy of the plaint.

Appearance in person, rule 3: through the successful delivery of summons, the court may direct:

 A person to appear before it individually or in person;

 The court may direct a pleader on behalf of the person to appear before the court who
have the knowledge of the case and is able to answer all material questions;
 A pleader along with some person who is able to answer all such material question.

Exemption from appearance in person Section 132-133, rule 4:

 No person shall be ordered to appear in person unless

o He resides within the local limits of the ordinary original jurisdiction of the
court; or
o Outside such limits but not less than fifty miles in case of non availability of
public conveyance and 200 miles in case of availability of public conveyance.
 A women not appearing in public;
 Any order ground of exception to which a person is entitled under this code.

Contents of summon [rule 5-8]

Every summon must contain a direction as to the date fixed either for settlement of issues or for
final disposal of the suit, in case of final disposal, the defendant should be directed to produce his
witnesses. The court should ensure availability of sufficient time to the defendant for answering
the claims of the plaintiff. The summon should also contain an order asking the defendant to
produce all documents which are in his possession or documents upon which he seeks to rely
during the trial of the suit.

Mode of service of summon [rule 9-30]

The service of summons is of fundamental importance to the civil litigation because as a matter
of general rule, fair trial should be accorded to each and every party whereby he can defend
himself with adequate time. The service of summon has also been an area of concern for the
court as it caused delay in the litigation and therefore taking into account the modern means of
communication, amendments were brought in delivery of summon in 1976, 99, 2002.

Different modes of summons:

 Service of summons in person: rule 10, 16-18: the mode of service of summon in person
is the ordinary mode of service which is governed by following principles:
o This is the most ideal mode of service because as summons means the intimation
of the suit to other person and therefore, if it is in person, it is most preferred.
Wherever practicable, the summons should be served to the defendant in person
or to his authorized agents;
o Where the defendant is absent from his residence at that time of service of
summons and the likelihood of him being found at his residence within a
reasonable time is not clear then the summons may be served to any male adult
member or otherwise to a female adult member of the defendant’s family residing
with him. A servant of the house cannot be said to be a family member.
(explanation of Rule 15)
o In a suit relating to any business or work against a person not residing within the
territorial jurisdiction of the court issuing such summons, it may be served to the
manager or authorized agent carrying out business on his behalf.
o In a suit for immovable property, if the service of summons cannot be made on
the defendant personally, and the defendant has no authorized agent then the
summons may be served to any other agent who is incharge of such property.
o Where there are two or more defendants, service of summons should be made on
each defendant individually.
 Service by courts [Rule 9]:
o summons to the defendants who are residing within the jurisdiction of the court
shall be served the summons through court officers or through any approved
courier service. It may even be served via registered post, speed post, fax,
messages, email service or through any other means of transmission.
o Where the defendant is residing outside the jurisdiction of the civil court, the
summons shall be served through an officer of the court within whose jurisdiction
the defendant resides.
o The court shall treat refusal of acceptance of summons as a valid service of
summons.
 Service by plaintiff Rule 9A: the court may also permit service of summon by the
plaintiff in addition to service of summons by the court. [Salem Advocates Bar
Association case]
 Substituted service [Rule 17, 19, 20]: the service of summons by a court which is distinct
from the ordinary mode of service and was approved by the court.
o Where the defendant or his agent refused to sign the acknowledgment or where
the service officer after due and reasonable diligence cannot find the defendant at
his residential or business premises and there is no likelihood of him being
available within a reasonable time, the service of summons can be made by
affixing a copy of the summons on the outer door or some other conspicuous part
 of the residential or business premise of the defendant. In such situations the court
will ask the service officer to give an affidavit of the same and upon due
satisfaction, the court may declare such affixing as the valid service of summons.
o The court is not able to trace the correct location even. Where the court is satisfied
that there is enough reason to believe that the defendant avoids the service of
summons or due to certain reasons it cannot be delivered through ordinary mode,
then the service may be effected by affixing the copy of summons in some
conspicuous place in the court house and also upon some conspicuous part of the
house in which the defendant is known to have last resided, carried on business,
or personally worked for gain or any other manner which the court thinks deem
fit.

Written Statement [order 8]

Special rules of defence in written statement:

 The defendant may bring new facts or such actions which make the suit either non
maintainable or declare it as void or voidable in law. The purpose of this rule is to give an
advance notification of the additional grounds relied upon by the defendant to the
plaintiff in order to substantiate the cause of justice and convenience.
 The denials must be specific in nature where each allegation of facts must be expressly
accepted or denied in writing.
 The language of denial should not be vague or evasive as in the case of damages or for
recovery of money, the defendant should categorically express whether he has received
the sum or any part of the sum thereof.
 Every allegation of facts in the plaint if not denied specifically, shall be taken to be
admitted in the eyes of the court except against a person who was under disability (like
law of limitation, suit for ceiling of immovable property without informing the affected
party as he did not received the summons for demolition of his property [physical
disability]) and may further be required to be proven by the same party.
 Where the defendant relies upon several grounds for defence or raises an issue of set off
or counter claim based on distinct facts, they should be stated separately or distinctly in
the written statement.
 Any new ground of defense which has arisen after the institution of the suit or
presentation of the written statement should be specifically pleaded by the defendant in
his written statement and for the same the court is empowered to take necessary actions.
 No pleading after the written statement of the defendant can be filed other than by way of
set off or counter claim. This rule is however subject to the discretion of the court.
 If the defendant fails to present his written statement within the time permitted or as fixed
by the court, the court may pronounce the judgment against him or any such order in
 relation to the suit as it deems fit. It may declare the matter ex parte. In the case of Balraj
Taneja vs. Sunil Madan,37 the supreme court held that the court is not supposed to act
blindly upon the admission of the facts made by the defendant in his written statement,
nor should the court proceed to pass the judgment blinding, merely because a written
statement has not been filed by the defendant traversing the facts set out by the plaintiff
in his plaint. In such a case, the proposition should be covered by the expression ‘the
court may in its discretion require any such facts to be proved’ used in sub rule 2 of rule 5
of order 8 for substantiating the cause of justice.

Set off [order 6]: a cross claim setup by the party to offset the original claim. It is an extension
of debts of which two persons contesting the matters are reciprocally credited to each other.
Where there are mutual debts mutual debts between the plaintiffs and the defendant one debt
may be settled against the other. The plea of setoff is a plea whereby the defendant
acknowledges the justness of the plaintiff’s claim but sets up another demand of his own to
counter balance the demand of his own against the demand of the plaintiff either in whole or
in parts.

The law recognizes two types of set off, order 8, rule 6 expressly deals with Legal setoff.
However it does not take away the power of the court to allow such adjustment independent of
the provision of the rule 6, order 8 which is referred as equitable se off:

Differences

 Legal setoff should be for ascertained or specific sum of money whereas equitable setoff
may be allowed even for an uncertain sum of money.
 Legal setoff can be claimed as a matter of right and the court is bound to entertain and
adjudicate upon it, whereas equitable setoff cannot be claimed as a matter of right and the
court is having a discretion leading to such adjudication.
 Under legal setoff it is necessary that the amount claimed as a part of set off must be
legally recoverable and must not be time barred whereas under equitable setoff, a claim
may be allowed even if it is time barred and only thing to be established is the presence
of a fiduciary relationship between the parties.
 A legal setoff requires a court fees to be paid whereas for equitable setoff there is no
requirement of a payment of court fees.

Counter claim [Rule 6a to 6g, Order 8, introduced in 1976]: counter claim may be defined as a
claim by the defendant in a suit against the plaintiff. It is a claim independent of and separable
from the plaintiff’s claim which can be enforced as a cross action in favor of the defendant
against the plaintiff.

37
AIR 1999 SC 3381.
In Lakshi Das vs. Nana Bhai38 the SC observed the scope of counter claim for the first time and
held that the question before the court is to consider on principles as to whether there is anything
in law statutory or otherwise, which precludes a court from treating a counter claim as a plaint in
a cross suit. The issues of counter claim are to be dealt with the question that whether they have
to conform with all the requirements of plaint mentioned under CPC if treated as a plaint and
there could not be a legal objection to the counter claim being treated as plaint under the law and
therefore to hold the otherwise would be to erect what in substance is a matter of defect in a form
of pleading into an instrument for denying what justice manifestly demands.

Object: The provision relating to counter claim thus seeks to save the time of the courts, exclude
inconvenience to the parties to such litigation and decide all such disputes between the parties
avoiding unnecessary multiplicity of judicial proceedings and prolonged trials. 39 Ramesh
Chandra vs. Anil Panjwani, AIR 2003 SC 2508.

Modes to setup of counter claim:

 In the written statement itself filed under Order 8 rule 1;

 By amending the written statement with the leave of the court and setting up a counter
claim;
 In a subsequent proceeding or pleading under Order 8 Rule 9 itself.

Who may file a counter claim: a defendant may file a counter claim against a plaintiff and
incidentally alongwith the plaintiff, the defendant may also claim relief against co-defendant in
the same suit. But a counter claim solely against the co-defendant is not maintainable.40

Effects of counter claim: the counter claim of the defendant will be treated as a plaint and the
plaintiff has a right to file a written statement in answer to the counter claim of the defendant.
The counter calim of the defendant will be treated purely on the merits and on the principles
governing the plaint and the plaintiff has to file a reply to the counter claim which shall be
treated as his written statement and all the rules governing the aspects of plaint are applicable on
the counter claim.

The difference between set off and counter claim:

 Set off is a statutory defence to a plaintiff’s action whereas a counter claim is

substantially a cross action suit.
 Set off must be for an ascertained sum of money or it must arise out of the same
transaction whereas a counter claim need not arise out of a same transaction;
 Set off is a ground of defence to the plaintiff’s action which would afford an answer to
the plaintiff’s claim in toto or pro tanto (in a proportion). Whereas the counter claim is a

38
AIR 1964 SC 11.
39
Ramesh Chandra vs. Anil Panjwani, AIR 2003 SC 2508.
40
Rohit Singh vs. State of Bihar, AIR 2007 SC 10
 weapon of offence which enables the defendant to enforce a claim against the plaintiff
effectually as an independent action.
 In case of a legal set-off the amount must be recoverable at the date of the suit, while in
case of counter claim the amount must be recoverable at the date of filing of written
statement.
 When the defendant demands in a plaintiff’s suit an amount below or upto the claim of
the suit, it will be treated as set off in a strict sense but when the claim is for a larger
amount, the excess claim raised may be treated as a counter claim.
Appearance and non-appearance of parties:

Rule 1 and 12:

Chota Lal vs. Amba Lal Hargoban: Bombay high court held that where a party arrives late for his
suit or application, he is entitled to restore his suit or application on the basis of payment of
costs.

Currin Bhai vs. N H Moos: it is difficult to agree with the principle developed in the case of
chota lal. If such a rigid rule is laid down, it might mean that the defendant will successively
prevent his suit from ever being heard and for all his misconduct, all he has to do is pay a cost at
a later stage for restoration of the matter altogether and that is something which the court
obviously cannot allow to happen.

Lakshi Commercial Bank ltd. vs Hans Raj: the underlined principles is that until the suit is
finally decided a party has a right to come in and defend the suit and this rule should be liberally
construed.

Arjun Singh vs. Mohindra Kumar (Supreme Court, AIR 1964 SC 993): one has to give valid
reason for restoration, payment of cost is not sufficient.

It is a fundamental rule of law of procedure that a party must have a fair and reasonable
opportunity to represent his case and for that purpose he should have a prior notice of legal
proceedings being initiated against him. If the summons is not duly served which is a condition
precedent to a fair trial or it does not give him sufficient time to represent his case sufficiently,
then no decree can be passed against him.41

Ex parte orders:

Ex parte is a decree passed in the absence of the defendant. Where the plaintiff appears and the
defendant does not appear at the time when the suit is called for hearing 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 subject to the ground of availability of sufficient cause or legal reasons.42

Remedies against the order of ex parte:

 To apply to the court by which such decree is passed to set it aside under Order 9 Rule 13
of CPC;
 To prefer an appeal against such decree under Section 96(2) or to file for revis0ion under
Section 115 of CPC where no appeal lies;
 To apply for review, order 47 Rule 1;

41
Begum Para vs. Luiza Matilda Fernandez. 1984 2 SCC 395.
42
Pandurang Ramchandra vs. Shanti Bai Ramchandra, AIR 1989 SC 2240.
  To file a suit on the ground of fraud.43

The above remedies are concurrent and they can be prosecuted simultaneously or concurrently
and where two remedies are resorted to one cannot be said to be operating in derogation of other.

Setting aside ex-parte rule 13: an order of ex parte has been passed may apply for setting it aside
and where there are more than one defendants then anyone of them can apply to set it aside.

Where the application will lie: an application to set aside the ex parte order may be made to the
court which has passed the ex parte order and where such decree is confirmed by a superior court
then an application may lie before such superior court.

The grounds for setting aside the order of ex parte:

 If the summons were not duly served and the defendant satisfied to the court for the same
then it acts as the valid ground for setting aside the ex parte order;
 Availability of a sufficient cause which has prevented his appearance in the court: the
expression sufficient cause is not defined anywhere but the party should not be deprived
of hearing unless there has been something equivalent to misconduct or gross negligence
on his part.
 Necessary materials should be placed before the court to show that the applicant is
vigilant and diligent, whether or not there is a sufficient cause would depend upon facts
and circumstances of the cases, if there are delaying tactics and non cooperation on part
of the parties, the party cannot seek indulgence of the court. The test to be applied is
whether the party honestly intended to remain present at the hearing of the suit and did
his best to do so.44 The language of the above rule is plain, express and unambiguous and
the grounds mentioned therein are exhaustive. E.g. of sufficient cause: the burden of
proving sufficient cause for non appearance lies on the defendant and it is enough to
prove to that he attempted to remain present, when the suit was called for hearing.
Certain causes have been held to be sufficient causes for the absence of defendant which
are :
o The bonafide mistake as to the date of hearing;
o Late arrival of train or other modes of transportation;
o Sickness of the counsel;
o Fraud of the opposite party;
o Negligence of next friend or guardian in case the defendant is minor;
o Death of a relative of a party;
o Strikes of advocates
 No sufficient cause example:
o Dilatory tactics, delaying tactics;

43
P Kiran Kumar vs. A S Khadar, AIR 2002 SC 2286.
44
Payal Ashok Kumar vs. Captain Ashok kumar, 1992 3 SCC 16; G P Srivastav vs. R K Raijada, 2000 3 SCC 54.
 o Negligence of party;
o Counsel being busy in some other court;
o Absence of defendant after the prayer of adjournment has been refused;
o Mere thinking that the case will not be called upon for hearing;
o Willful avoidance of taking part in court proceedings;

Remedy if ex parte order is passed:

 Appeal: an appeal lies against an order rejecting an application to set aside the ex parte
decree under Section 96(2). There is a conflict before the court that whether in such cases
the appellate court can only consider the decree passed by the lower court on merits or
whether the court can also consider sufficient grounds or reasons attached with the non
appearance of the party
 Revision: an order setting aside an ex parte decree is ‘case decided’ within the meaning
of section 115 which is subject to the revision of the court
 Review: since all the remedies against an ex parte decree are concurrent and aggrieved
party may file an application for review under Order 47 Rule 1.
 Suit: If all doors are closed, a suit for fraud may be filed. A suit to set aside an ex parte
decree is not maintainable, but if an ex parte decree is alleged to have been obtained by
the plaintiff’s fraud then the defendant can file a regular suit to set aside such decree as
fraud vitiate the solemn objective of justice.

FIRST HEARING OF THE SUIT [ORDER 10, 14, 15]:

First hearing of a suit means the day on which the court goes into the pleadings of the parties for
understanding their contentions. Presentation of the plaint is the first stage of the trial,
submission of written statement is the second stage and the third stage of the suit where framing
and settlement of issues in the presence of parties takes place, is called first hearing. 45 In this
case, it was observed that the date of fist hearing is the date on which the court proposes to apply
its mind in the contentions of the parties to the suit and in the documents filed by them for the
purpose of framing of issues.

Object of first hearing: under order 10 rule 1, a the stage of first hearing the court will ascertain
whether the parties accept or deny the allegations of fact or law maid either in plaint or written
statement and if there is no possibility of settlement the case will be enlisted for detailed hearing.
Hence at the stage of first hearing the job of the court is to ascertain with precision the
proposition of law or fact on which the court may frame an issue and examine the testimony of
the parties.

45
Siraj Ahmed vs. Prem Nath, AIR 1993 SC 2525.
Framing of issues [order 14, 1]: issues arise when a material proposition of fact or law is
affirmed by one party and denied by the other party. Each such material proposition so affirmed
or denied shall become the cause of a distinct issue.

Kinds of issue: rule 1 of order 14 provides that issues can be issues of fact, issues of law or
mixed issues of fact and law. Issues of law may relate to : the jurisdiction of the court, a bar to
the suit created by any law for the time being in force.

Importance of issues:

 it is the issues framed and not the pleadings of the parties that will guide the parties in
leading the evidences.
 The court cannot refuse to determine a point an issue has been framed and the evidence
were lead by the parties even if the same were not included in the pleadings.
 The court should not frame any such issue which does not arise in pleadings as it helps
the court from avoiding the deviation from the subject matter.
 Issues must be confined to material question of fact or law (facta probanda) and not on
subordinate facts or evidences by which the material facts are either proved or disproved
(facta probantia)
 One issue should preferably cover only one fact or law in dispute between the parties.
 If the case goes for appeal, the appellate court is under duty to decide the issues settled
for trial and not on the pleadings of the parties.46 It was held in this case that issues are
the backbone of the suits which act as the lamp post for enlightening the parties to the
allegations, the trial court and even the appellate court as to what is the actual
controversy, what is the evidence and where lies the actual truth.

Materials for framing issues {Rule 3}

 Allegation made on both by the parties or persons presenting on their behalf or through
the pleaders appearing for the parties
 Allegations made in the pleadings or in answer to the interrogatories
 Documents produced by the parties

Disposal of the suit [order 15]:

Court may pronounce the judgments on the first hearing:

 Where the parties are not at issue or of any question of fact or law
 Where there are two or more defendants and anyone of them admits to the claim of the
plaintiff, the court may pronounce the judgment against such defendants and a suit may
proceed against other defendants

46
State of Gujarat vs. Jaypal Singh, Jaswant Singh Engineers and Contractors
 Where the summons has been issued for the disposal of the suit and either party fails
without sufficient cause to produce the evidence on which he relies
 Where a party or his pleader makes certain admission of the facts which are sufficient
enough to dispose of the case
 Where after the issues have been framed the court is satisfied that no further argument or
evidence is required
Discovery, inspection [order11], admission (read by own) [order 12] and production,
impounding and return of documents [order 13] and affidavits [order 19]:

 Discovery and inspection:

o Discovery means to compel the opposite party to disclose what he has in his
possession. It is a compulsory disclosure by a party to an action of facts or
documents on which the other side wishes to rely. After the settlements of the
issues, a party to the suit may require information from his adversary as to facts or
documents in possession of such party through putting up a series of questions
which is called interrogatories. The judge will go through these questions and if
he considers them proper he will compel the other side to answer them on oath
before the trial, this particular submission on oath is called discovery of facts.
 Interrogatories [Rule 1 to 11]:
o Object
 to know the nature of the case of the opponent
 To support his own case either by directly obtaining admission or
indirectly by impeaching or destructing the case of his opponent.
o Who may administer interrogatories
 It may be administered by one party to a suit to the other party which may
be the case that a plaintiff may ask interrogatories to the defendant and
vice versa
 Interrogatories may be addressed to a co-plaintiff by plaintiff and to the
co-defendant by the defendant but it is necessary that all of them are
parties to the suit.
o Rules for framing interrogatories:
 Interrogatories may be administered in writing with the leave of the court
and subject to the limitations as may be prescribed by the court
 The particulars of the interrogatories proposed to be delivered should be
submitted to the court which shall decide within the ten day from filing of
such application
 Interrogatories may be administered by a plaintiff to a defendant provided
that there is some question or issue between them in the suit or
proceedings
 No party can deliver more than one set of interrogatories without the order
of the court
 No leave may be granted to the plaintiff for administering the
interrogatories until the written statement is filed by the defendant or the
time to file the written statement has expired and similarly a defendant
may not file interrogatories before filing his written statement
 Where a party to the suit is corporation or body of persons, interrogatories
may be administered to a officer or member of such corporation
  Where a party to a suit is minor or lunatic person, interrogatories may be
administered to his next kin
 Interrogatories and an affidavit in support to such interrogatories must be
delivered to the court in prescribed form
 Interrogatories must relate to or must have a reasonable nexus with the
subject matter of the suit
 Interrogatories should be submitted the court within the ten days of service
of such interrogatories or the time as fixed by the court
 Interrogatories must relate to the question of fact and not the conclusion
or inferences of the law
 Interrogatories may be objected on the ground that they are scandalous,
vexatious, and irrelevant or unreasonable or not in bonafide intention in
relation to the subject of the suit
 The cost of the interrogatories shall be borne by the party administering
them but the court may also order the party who has defaulted to answer
such interrogatories to pay the cost
 Any party to the trial of the suit may use in evidence any one or more of
the answers or any part of the answers thereof in support of his claim to
the suit
 Where any person fails to comply with an order to answer interrogatories
his suit can be dismissed if he is a plaintiff or his defence may be struck
off if he is a defendant.

Interim orders

Interim orders means those intervening order which are temporary in nature and remain in force
for the time being during the pendency of a suit or proceedings which do not finally determine
the substantive rights and liabilities of the parties in respect to the subject matter of the suit or
proceedings.

Types of interim orders:

o Payment in court [order 24]

o Security in costs, order 25
o Commissions, order 26
o Arrest before judgment, order 38
o Attachment before judgments, order 38
o Temporary injunction, order 39
o Receiver, order 40
Appointment of commissions [Sections 75-78 read with Order 26]: it deals with the power of the
court to issue commission which is discretionary in nature and can be exercised by the court for
doing full and complete justice between the parties. it can be exercised by the court either on the
application of the parties or suo moto.

Purpose:

 To examine witnesses: the court has a discretion to relax the rule of attendance of
witnesses on the ground of inability of the person to attend the court relating to sickness
or infirmity or his presence may be detriment to the public interest. The court may issue
commission on the following grounds:
o If the person to be examined as a witness resides within the local limits of the
court’s jurisdiction and is exempted under the code from attending the court or he
is suffering from sickness or physical infirmity making him impossible to attend
the court or in the interest of justice, for expiditious disposal of the case- a
commissioner is deemed necessary.
o If the person resides beyond the local limits of the court’s jurisdiction
o If he is about to leave the jurisdiction of the court
o If the person is a government servant and in the opinion of the court his
attendance may not be without detriment to public service.
o If the person is residing out of india and the court is satisfied that his presence is
necessary
 To make local investigations: the court may in a suit appoint a commission to conduct
local investigation and report thereon for the purpose of
o Elucidating any matter in dispute
o Ascertaining the market value of the property for which the calculation of mesne
profits or annual net profits is required
o The object of local investigation is not to collect evidence which are admissible
directly in the court but to obtain the evidences from its very peculiar nature
which is available or found only on the spot.
 To adjust accounts: in any suit where examination or adjustment of accounts is deemed
necessary, the court may direct a person to act as commissioner for carrying out the
instructions of the court and report thereon.
 To make partitions (at the time of executions): where a decree of partition of immovable
property has been passed, the court may issue a commission to carry out the modes of
partition according to the rights declared in the decree and submit a report thereon to the
court
 To conduct sale of the property: where in any suit it becomes necessary to sell a
immovable property which is already in the custody of the court and the preservation of
the same becomes difficult pending the final determination of the rights, court may
 appoint the commission if it deems fit directing him to conduct such sale and report
thereon.
 To perform ministerial act: clerical works
 Powers of the commissioner [Rule 16-18, Order 26]:
o Summon or procure the attendance of the parties and their witnesses and examine
them
o Call for examining the documents
o Enter into any land or building mentioned thereon in the order
o Proceed ex parte if the parties do not appear before him even after repeated
summons and reminders
 Who will take care of the expenses: they may be taken care of by the party asking for
such appointment by depositing the relevant expenses in the court.

Arrest before judgment [order 38, rule 1 - 4]: under the special circumstances the court can order
for arrest of a debtor where the creditor moves an application suggesting that the execution of the
decree may be delayed on account of the debtor or the party absconding from the local
jurisdiction of the court. The object of this order is to enable the plaintiff to realize the amount of
decree eventually if passed in his favor and to prevent any attempt on behalf of the defendant to
delay the cause of the justice or to delay the execution of the decree.

Grounds of the arrest are:

 The defendant is having an intent of delay or to avoid the court process or to obstruct the
judicial processes has absconded or left the local limits of the jurisdiction of the court or
is about to abscond or leave the local limits or has disposed of or removed the property
from the local limits of the court or any part of the property thereon.
 The defendant is about to leave India under circumstances affording reasonable
opportunity or apprehension that the plaintiff may not be able to realize his claim or the
defendant may delay the execution of the suit.
 The plaintiff making a request for arrest of the defendant before the judgment shall have
to supply these grounds on the affidavit but the defendant will not be arrested if he is
entrusting his task to his manager or agent for executing the decree. Even after fulfilling
the above grounds the order of arrest may not be passed as it rests completely within the
discretion of the court.
 Conditions precedents before arrests:
o The plaintiff’s suit must be bonafide and his cause of action must be
unimpeachable
o The court must have a reason to believe on the basis of adequate materials that
there is an urgency to exercise this extraordinary power and the same lies within
the ambit of the court.
Complete it by urself

Execution of decrees [Section 38, order 21]: it means the enforcement and giving effect to a
judgment or order of the court so as to enable the decree holder to realize the fruits of the decree.
The execution is deemed to be completed when the decree holder or the judgment creditor gets
money or other things award to him by judgment or decree. In Ghanshyam das vs Anant kumar
Sinha, AIR 1991 SC 2251, it was held that the remedy under the civil procedure code is of
superior judicial quality than what is generally available under other statutes and the judge being
entrusted exclusively with administration of justice is expected to do better. CPC contains
elaborate and exhaustive provisions dealing with all the aspects of execution providing effective
remedies not only to judgment debtors but also to claimant objectors.

The courts which may execute the decree: section 38 enacts that a decree may be executed either
by the court which passed it or by the court to which it is sent for execution. Section 37 defines
the expression ‘court which passed the decree’ and the following courts fall under this
expression:

 The court of first instance which actually pass the decree;

 The courts of first instance in case of appellate decrees;
 Where the court of first instance has ceased to exist, the court which would have
jurisdiction to try the suit at the time of execution;
 Where the court of first instance has ceased to have jurisdiction to execute the decree, the
court at the time of execution would have had jurisdiction to try the suit

In Ghantesher vs. Madan Mohan AIR 1997 SC 471, it was held that a decree may be executed
either by the court which passed it or by the court to which it is send for execution. In Merla
Ramanna vs. Nallapa Raju AIR 1956 SC 87, it was held that a court which has neither passed a
decree not a decree is passed for execution, cannot execute it. it is settled law that the court
which actually passed the decree does not lose its jurisdiction to execute it by reason of the
subject matter thereof being transferred subsequently to the jurisdiction of another court.

Transfer of decree for execution [Section 39-42 read with order 21 rule 3-9:] as a general rule,
the court which pass the decree is primarily the court to execute it but such court may send the
decree for execution to another court either suo moto or at the application of the decree holder if
following grounds exists:

 The judgment debtor actually and voluntarily resides or carries on business within the
local limits of the jurisdiction of such court;
 The judgment debtor does not have property sufficient to satisfy the decree within the
local limits of the jurisdiction of the court which pass the decree but has property within
the local limits of the jurisdiction of such other court
  The court directs the sale or delivery of immovable property situated outside the local
limits of the jurisdiction of such other court;
 The court which pass the decree considers it necessary for any other reason to be
recorded in writing that the decree should be executed by such other court

In lakshi narayan vs suraj kumar baksh and Mohan deo Prasad vs. Ram Lochan, it was
held that the provision of section 39 stating the grounds for transfer of execution proceedings are
not mandatory and the court has the discretion in the subject matter which will be judicially
exercised by it.

General principles:

 Territorial jurisdiction is a condition precedent to a court executing a decree in respect of

property situated entirely outside its local jurisdiction.
 An executing court cannot go behind the decree; it must take the decree as it stands and
execute it according to its terms. It has no power to vary or modify the terms or to
question its legality or correctness because of the reason that the legality of the main
proceedings cannot be brought into question through collateral proceedings and therefore
no enquiry on this ground can be initiated.47
 In case of inherent lack of jurisdiction, the decree passed by the court is a nullity and its
invalidity could be setup wherever and whenever it is sought to be enforced. Whether in
execution or in the main proceedings.
 Inherent lack of jurisdiction however must appear on the face of the record and hence if
the decree on the face of it discloses certain material on the basis of which the court could
have passed the decree, it would be valid and in such cases the executing court must
except and stand by the decree as it receives.48
 A decree which is otherwise valid and executable does not become inexecutable on the
death of the decree holder or of judgment debtor and can be executed against his legal
heirs.49
 When the terms of the decree are vague or ambiguous, an executing court can construe
the decree to ascertain its precise meaning for which it may refer to the judgment or even
the pleadings of the parties.50
 An executing court can go into the question of the executability or otherwise of the
decree and consider whether by any subsequent developments the decree has seized to be
executable according to its present terms.51

47
Bhanwar Lal vs. Universal Heavy Mechanical Lifting Enterprises.
48
Nagin Das vs. Dalpat Ram; K K Chari vs. R M Sashadari.
49
Pradhati Devi vs. Mahadeo Prasad.
50
Dhavan Vaja vs. Solanki Hanuji Khodaji.
51
Jai Narayan vs. Kedar Nath.
  A decree which becomes inexecutable by operation of law may become executable by
virtue of a subsequent amendment in the statute and can be executed after such
amendment.52
 The executing court has the power to mould the relief granted to the plaintiff in
accordance with the changed circumstances.53
 The court executing the decree transferred to it has the same powers in executing such
decree as if it had been passed by itself.54

52
Dularey Lodh vs. ADJ Kanpur.
53
yashPal singh vs. ADJ.
54
Mahadeo Prasad vs. Ram Lochan.