CIVIL PROCEDURE CODE

Essentials and kinds of decree

Explain Decree, Order, and Judgment and distinguish between them. What are the essential elements of a
decree? What are the kinds of decree? What are the consequences of nonappearance of parties? What is an ex
parte decree? Discuss the remedies available to a defendant against whom an ex parte decree has been passed.
All questions regarding execution of a decree shall be determined by the court executing the decree and not by a
separate suit. Explain.

Decree

In a civil suit several facts might be alleged and the court may be required to rule on several claims. In
simple terms, a decree is the ruling of the court regarding the claims of the parties of the suit. For example,
in a suit between A and B, A may claim that a particular property P belongs A. After hearing all the
arguments, the court will rule in the favor of either A or B. The final decision of the court regarding this
claim i.e. whether the property belongs to A or B, is a decree.

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

From the above definition we can see the following essential elements of a decree -

1. There must be an adjudication - Adjudication means Judicial Determination of the matter in dispute. In
other words, the court must have applied its mind on the facts of the case to resolve the matter in dispute.
For example, dismissing a suite because of default in appearance of the plaintiff is not a decree. But
dismissing a suite on merits of the case would be a decree.

2. There must be a suit - Decree can only be given in relation to a suit. Although CPC does not define
what suit means, in Hansraj vs Dehradun Mussoorie Tramways Co. Ltd. AIR 1933, the Privy Council
defined the term suit as "a civil proceeding instituted by the presentation of a plaint".

3. Rights of the parties - The adjudication must be about any or all of the matters in controversy in the
suit. The word right means substantive rights and not merely procedural rights. For example, an order
refusing leave to sue in forma pauperis (i.e. an order rejecting the application of a poor plaintiff to waive
court costs) is not a decree because it does not determine the right of the party in regards to the matters
alleged in the suit.

4. Conclusive Determination - The determination of the right must be conclusive. This means that the
court will not entertain any argument to change the decision. I.e. as far as the court is concerned, the
matter in issue stands resolved. For example, an order striking out defence of a tenant under a relevant
Rent Act, or an order refusing an adjournment is not a decree as they do not determine the right of a party
conclusively. On the other hand, out of several properties in issue in a suit, the court may make a
conclusive determination about the ownership of a particular property. Such a conclusive determination
would be a decree even though it does not dispose off the suit completely.
5. Formal expression - To be a decree, the court must formally express its decision in the manner
provided by law. A mere comment of the judge cannot be a decree.

Examples of decisions which are Decrees - Dismissal of appeal as time barred, Dismissal or a suit or
appeal for want of evidence or proof, Order holding appeal to be not maintainable.

Examples of decisions which are not Decrees - Dismissal of appeal for default, order of remand, order
granting interim relief.

Order

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

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

Decree - S. 2(2) Order S. 2(14)

Decree - S. 2(2) Order S. 2(14)

Can only be passed in a suit originated by the Can be passed in a suit originated by the
presentation of a plaint. presentation of a plaint, application, or petition.
Contains Conclusive Determination of a right May or may not finally determine a right.
May be final, preliminary, or partly preliminary - partly
Cannot be a preliminary order.
final.
In general, there can only be one decree or at the most
There can be any number of orders in a suit.
one preliminary and one final decree in a suit.
Every decree is appealable unless an appeal is Only those orders which are specified as
expressly barred. appealable in the code are appealable.
A second appeal may lie against a decree to a High
There is no second appeal for orders.
Court on certain grounds.

Judgement

As per Section 2 (9), "judgment" means the statement given by the judge of the grounds of a decree or
order. Every judgment should contain - a concise statement of the case, the points for determination, the
decision thereon, the reasons for the decision. In the case of Balraj Taneja vs Sunil Madan, AIR 1999, SC
held that 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.
As per Rule 6 A of Order 20 the last part of the judgment should precisely state tge relief granted. Thus, a
judgment is a state prior to the passing of a decree or an order. After pronouncement of a judgment, a
decree shall follow.

Kinds of Decree

Preliminary - Where an adjudication decides the rights of the parties with regard to all or any of the
matters in controversy in the suit but does not completely dispose of the suit, it is a preliminary decree. It is
passed when the court needs to adjudicate upon some matters before proceeding to adjudicate upon the
rest.

In Shankar vs Chandrakant SCC 1995, SC stated that 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.

CPC provides for passing a preliminary decrees in several suits such as - suit for possession and mesne
profits, administration suit, suits for pre-emption, dissolution of partnership, suits relating to mortgage. In
Narayanan vs Laxmi Narayan AIR 1953, it was held that the list given in CPC is not exhaustive and a court
may pass a preliminary decree in cases not expressly provided for in the code.

Final - When the decree disposes of the suit completely, so far as the court passing it is concerned, it is a
final decree. A final decree settles all the issues and controversies in the suit.

Partly preliminary and partly final - When a decree resolves some issues but leaves the rest open for
further decision, such a decree is partly final and party preliminary. For example, in a suit for possession of
immovable property with mesne profits, where the court decrees possession of the property and directs an
enquiry into the mesne profits, the former part of the decree is final but the latter part is preliminary.

Deemed Decree - The word "deemed" usually implies a fiction whereby a thing is assumed to be
something that it is ordinarily not. In this case, an adjudication that does not fulfill the requisites of S. 2 (2)
cannot be said to be a decree. However, certain orders and determinations are deemed to be decrees
under the code. For example, rejection of a plaint and the determination of questions under S. 144
(Restitution) are deemed decrees.

Consequences of Non appearance of parties (Order 9)

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

Rule 1 - Parties to appear on day fixed in summons for defendant to appear and answer— On the
day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the
Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing
is adjourned to a future day fixed by the Court.

Dismissal of Suit
Rule 2 - Dismissal of suit where summons not served in consequence of plaintiffs failure to pay
cost— Where on the day so fixed it is found that the summons has not been served upon the defendant in
consequence of the failure of the plaintiff to pay the court-fee or postal charges (if any) chargeable for such
service, or to present copies of the plaint or concise statements, as required by rule 9 of order VII, the
Court may make an order that the suit be dismissed :

Provided that no such order shall be made, if, notwithstanding such failure the defendant attends in person
(or by agent when he is allowed to appear by agent) on the day fixed for him to appear and answer.

Rule 3 - Where neither party appears, suit to be dismissed— Where neither party appears when the
suit is called on for hearing, the Court may make an order that the suit be dismissed.

Rule 4 - Plaintiff may bring fresh suit or Court may restore suit to file— Where a suit is dismissed
under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply
for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for such
failure as is referred to in rule 2, or for his non-appearance, as the case may be, the Court shall make an
order setting aside the dismissal and shall appoint a day for proceeding with the suit.

Rule 5 - Dismissal of suit where plaintiff after summons returned unserved, fails for one month to
apply for fresh summons—

(1) Where after a summons has been issued to the defendant, or to one of several defendants, and
returned unserved the plaintiff fails, for a periods of one month from the date of the return made to the
Court by the officer ordinarily certifying to the Court returns made by the serving officers, to apply for the
issue of a fresh summons the Court shall make an order that the suit be dismissed as against such
defendant, unless the plaintiff has within the said period satisfied the Court that—

(a) he has failed after using his best endeavours to discover the residence of the defendant, who has
not been served, or

(b) such defendant is avoiding service of process, or

(c) there is any other sufficient cause for extending the time, in which case the Court may extend the
time for making such application for such period as it thinks fit.

(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Ex parte Proceedings

Rule 6 - Procedure when only plaintiff appears—

(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing,
then—

(a) When summons duly served—if it is proved that the summons was duly served, the Court may
make an order that the suit shall be heard ex parte.
 (b) When summons not duly served—if it is not proved that the summons was duly serve, the Court
shall direct a second summons to be issued and served on the defendant;

(c) When summons served but not in due time—if it is proved that the summons was served on the
defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons,
the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct
notice of such day to be given to the defendant.

(2) Where it is owing to the plaintiffs' default that the summons was not duly served or was not served in
sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

Rule 7 - Procedure where defendant appears on day of adjourned hearing and assigns good cause
for previous non-appearance— Where the Court has adjourned the hearing of the suit ex-parte and the
defendant, at or before such hearing, appears and assigns good cause for his previous non-appearance,
he may, upon such terms as the Court directs as to costs or otherwise, be heard in answer to the suit as if
he had appeared on the day, fixed for his appearance.

Absence of Plaintiff

Rule 8 - Procedure where defendant only appears— Where the defendant appears and the plaintiff
does not appear when the suit is called on for hearing, the Court shall make an order that the suit be
dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a
decree against the defendant upon such admission, and, where part only of the claim has been admitted,
shall dismiss the suit so far as it relates to the remainder.

Rule 9 - Decree against plaintiff by default bars fresh suit—

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a
fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside,
and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was
called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to
costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit.

(2) No order shall be made under this rule unless notice of the application has been served on the
opposite party.

Multiple plaintiffs and/or Defendants

Rule 10 - Procedure in case of non-attendance of one or more of several plaintiffs— Where there
are more plaintiffs than one, and one or more of them appear, and the others do not appear, the Court
may, at the instance of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if
all the plaintiffs had appeared, or make such order as it thinks fit.
Rule 11 - Procedure in case of non-attendance of one or more of several defendants— Where there
are more defendants than one, and one or more of them appear, and the others do not appear, the suit
shall proceed, and the Court shall, at the time of pronouncing judgment, make such order as it thinks fit
with respect to the defendants who do not appear.

General Consequence of Non appearance

Rule 12 - Consequence of non-attendance, without sufficient cause shown, of party ordered to

appear in person— Where a plaintiff or defendant, who has been ordered to appear in person, does not
appear in person, or show sufficient cause to the satisfaction of the Court for failing so to appear, he shall
be subject to all the provisions of the foregoing rules applicable to plaintiffs and defendants, respectively
who do no appear.

This means either the suit will be dismissed or will be continued ex party.

Ex parte Decree (Order 9)

As per Rule 6, if the defendant fails to appear before the court in spite of a proper service of the summons,
the court may proceed ex-parte and may pass a decree in favor of the plaintiff. This is called an ex-parte
decree. In the case of Hochest Company vs V S Chemical Company, SC explained that an ex parte decree
is such decree in which defendant did not appear before court and the case is heard in the absence of the
defendant from the very beginning.

Remedies available to the defendant against an ex party decree

1. Application to set aside the ex party decree - As per Order 9, Rule 13, a defendant may apply before
the court that passed the decree to set it aside. If he satisfies the court that the summons was not duly
served or he was prevented by any other sufficient cause from attending the hearing, the court shall make
an order setting aside the decree. For example, bona fide mistake as to the date or hearing, late arrival of
train, etc. are sufficient causes for absence of the defendant. Such an application for setting aside may be
made within 30 days from the date of decree as per Section 123 of Limitation Act.

Setting aside decrees ex party

Rule 13 - Setting aside decree by ex party against defendant— In any case in which a decree is
passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an
order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was
prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall
make an order setting aside the decree as against him upon such terms as to costs, payment into Court or
otherwise as it thinks fit, and shall appoint a day for proceeding with the suit;

Provided that where the decree is of such a nature that it cannot be set aside as against such defendant
only it may be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there
has been an irregularity in the service of summons, if it is satisfied that the defendant had notice of the date
of hearing and had sufficient time to appear and answer the plaintiff's claim

Explanation.—Where there has been an appeal against a decree passed ex parte under this rule, and the
appeal has been disposed of an any ground other than the ground that the appellant has withdrawn the
appeal, no application shall lie under this rule for setting aside that ex parte decree.

Rule 14 - No decree to be set aside without notice to opposite party— No decree shall be set aside
on any such application as aforesaid unless notice thereof has been served on the opposite party.

The court may impose conditions as it may deem fit on the defendant for setting aside the decree. It may
ask the defendant to pay costs.

When an ex parte decree is set aside, the court should proceed to decide the suit as it stood before the
decree. The trial should commence de novo and the evidence that had been recorded in the ex parte
proceeding should not be taken into account.

This remedy is specifically meant for an ex party decree.

1. Prefer an appeal against the decree under Section 96.

2. Apply for review under Order 47 Rule 1.

3. File a suit on the ground of fraud.

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

Execution of a Decree

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

Questions to be determined by the Court executing decree -

(1) All questions arising between the parties to the suit in which the decree was passed, or their
representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined
by the Court executing the decree and not by a separate suit.

(3) Where a question arises as to whether any person is or is not the representative of a party, such
question shall, for the purposes of this section, be determined by the Court.
Explanation I.For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant
against whom a suit has been dismissed are parties to the suit.

Explanation II. (a) For the purposes of this section, a purchaser of property at a sale in execution of a
decree shall be deemed to be a party to the suit in which the decree is passed; and

(b) all questions relating to the delivery of possession of such property to such purchaser or his
representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the
decree within the meaning of this section.

The objective of this section is to provide cheap and fast remedy for the resolution of any questions arising
at the time of execution. Institution of new suits would only increase the number of suits and would also be
a burden on the parties.

The scope of this section is very wide. It confers exclusive jurisdiction to the court executing the decree in
all the matters regarding the execution. It does not matter whether the matter has arisen before or after the
execution of the decree. Thus, this section should be construed liberally.

Conditions -

1. The question must be one arising between the parties or their representatives to the suit in which the
decree is passed.

2. The question must relate to the execution, discharge, or satisfaction of the decree.

As held in the case of Arokia swamy vs Margaret AIR 1982, both the conditions must be satisfied
cumulatively.

What is meant by execution, discharge and satisfaction of a decree -

This expression has not been defined in the code. However, the following questions are held to be relating
to the execution, discharge and satisfaction of the decree -

Whether a decree is executable, whether a property is liable to be soled in execution of a decree, whether
the decree is fully satisfied, whether the execution of the decree was postponed.

The following questions have been held as not related - whether the decree is fraudulent or collusive,
whether the decree has become in executable because of a compromise between the parties, a question
about the territorial or pecuniary jurisdiction of the court passing the decree.

Appeal and Revision

Earlier, determination made under Section 47 was deemed to be a decree under Section 2(2). However,
after the amendment in 1976, this is not so. Any determination made under an application under Section
47 is not considered a decree and is therefore not appealable under Section 96 or Section 100. Since it is
no more a decree, a revision application under Section 115 is therefore maintainable provided the
conditions stipulated in Section 115 are satisfied
Jurisdiction of civil court

Essentials , basic rules and amendment of pleading

Pleadings are the backbone of legal profession. It is the foundation stone on which case of a party stands. The case
of a party must be set out in the pleadings. Moreover, the relief cannot be claimed on the grounds which are not
contained in the pleadings. The immaterial or vague or ambiguous matter should be avoided and pleadings should
be properly framed. In Devki Nandan v. Murlidhar, it was held that a finding cannot be sustained which is based on
no pleading and no evidence.
Pleadings are those materials or essential facts which are necessary to be averred in order to put forward a cause or
to establish a defence in a judicial proceeding. It is the backbone of the suit upon which the entire edifice of the suit
rests. It includes allegations and counter allegations made by one party and denied by the other. Etymologically, it
means a formal statement to propound the cause of action or set up a defence against the case of the plaintiff.

Order VI of the Code of Civil Procedure, 1908 deals with pleadings in general. Rule 1 defines pleading, while Rule 2
lays down the fundamental principles of pleadings. Rules 3 to 13 require the parties to supply necessary particulars.
Rules 14 and 15 provide for signing and verification of pleadings. Rule 16 empowers a Court to strike out
unnecessary pleadings. Rules 17 and 18 contain provisions relating to amendment of pleadings.

As per Rule 1 of Order VI of the Code of Civil Procedure, 1908, pleading is defined as plaint or written statement. It is
important to know here the meaning of plaint and written statement. Plaint is the statement of the plaintiff
containing grievances in order to initiate an action in a court of law. It helps the court to determine the real nature
of the suit. Written statement is the statement or defence of the defendant by which he either admits the claim of
the plaintiff or denies the allegations or averments made by the plaintiff in his plaint

Essentials and basic Rules of Pleadings

For the proper understanding of rules of pleadings it may be divided into two heads:-
(A) Fundamental or Basic Rules; and (B) Particular or Other Rules
(A) Fundamental or Basic Rules of Pleadings:- Sub-rule (1) of Rule 2 of Order VI of the Code of Civil Procedure, 1908,
lays down the fundamental principles of pleadings. It reads as under:-
“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.”

(1) Pleadings should state facts and not law:- It is the first fundamental rule of pleadings. It says that pleadings
should state only facts and not law. In the case of Kedar Lal v. Hari Lal, it was held that it is the duty of the parties to
state only the facts on which they rely upon their claims. It is for the Court to apply the law to the facts pleaded.

(2) The facts stated in pleadings should be material facts:- It is the second fundamental rule of pleadings. It says
that pleadings should contain a statement of material facts and material facts only. Here one most important
question is arose i.e. what is the meaning of the term “material facts”. This term has not been defined in the Code of
Civil Procedure, 1908. But the Court defined this term in many judicial pronouncements. Like in the case of Union of
India v. Sita Ram, the court said that “material facts” means all facts upon which the plaintiff’s cause of action or
the defendant’s defence depends, or in other words, all those facts which must be proved in order to establish the
plaintiff’s right to relief claimed in the plaint or the defendant’s defence in the written statement. Again in another
case the Supreme Court said that the term material fact means “All the primary facts which must be proved at the
trial by a party to establish the existence of a cause of action or his defence are material facts.”
Again the Supreme Court held that:- “The phrase ‘material facts’ may be said to be those facts upon which a party
relies for his claim or defence. In other words, ‘material facts’ are facts upon which the plaintiff’s cause of action or
the defendant’s defence depends. What particulars could be said to be ‘material facts’ would depend upon the fats
of each case and no rule of universal application can be laid down. It is, however, absolutely essential that all basic
and primary facts which must be proved at the trial by the party to establish the existence of a cause of action or
defence are material facts and must be stated in the pleading by as the party.”

(3) Pleadings should not state the evidence:- It is third fundamental rule of pleadings. It says that pleadings should
contain a statement of material facts on which the party relies but not the evidence by which those facts are to be
proved. The facts are of two types:-
(a) Facta probanda- the facts required to be proved (material facts); and
(b) Facta probantia- the facts by means of which they are to be proved (particulars or evidence).

The pleadings should contain only facta probanda and not facta probantia. The material facts on which the plaintiff
relies for his claim or the defendant relies for his defence are called facta probanda, and they must be stated in the
plaint or in the written statement, as the case may be. But the facts or evidence by means of which the material
facts are to be proved are called facta probantia and need not be stated in the pleadings

(4) The facts in pleadings should be stated in a concise form:- It is the fourth and last fundamental rule of pleadings.
It says that the statements in pleadings should be stated in a concise and in brief form. In Virendra Kashinath v.
Vinayak N. Joshi, The words “in a concise form” are definitely suggestive of the fact that brevity should be adhered
to while drafting pleadings. Of course, brevity should not be at the cost of excluding necessary facts, but it does not
mean niggling in the pleadings. If care is taken in syntactic process, pleadings can be saved from tautology.

(B) Particular or Other Rules of Pleadings:- Besides the fundamental or basic rules of pleadings, there are other or
particular rules of pleadings which are as follows:-

(1) Wherever misrepresentation, fraud, breach of trust, willful default or undue influence are pleaded in the
pleadings, particulars with dates and items should be stated.
(2) The performance of a condition precedent need not be pleaded since it is implied in the pleadings. Non-
performance of a condition precedent, however, must be specifically and expressly pleaded.
(3) Generally departure from pleading is not permissible, and except by way of amendment, no party can raise any
ground of claim or contain any allegation of fact inconsistent with his previous pleadings.
(4) A bare denial of a contract by the opposite party will be construed only as a denial of factum of a contract and
not the legality, validity or enforceability of such contract.
(5) Documents need not be set out at length in the pleadings unless the words therein are material.
(6) Wherever malice, fraudulent intention, knowledge or other condition of the mind of a person is material, it may
be alleged in the pleading only as a fact without setting out the circumstances from which it is to be inferred. Such
circumstances really constitute evidence in proof of material facts.
(7) 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 term of such notice or the circumstances
from which it is to be inferred, unless they are material.
(8) 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.
(9) Facts which the law presumes in favour of a party or as to which the burden of proof lies upon the other side
need not be pleaded.
(10) Every pleading should be signed by the party or one of the parties or by his pleader.
(11) A party to the suit should supply his address. He should also supply address of the opposite party.
(12) Every pleading should be verified on affidavit by the party or by one of the parties or by a person acquainted
with the facts of the case.
(13) A Court may order striking out a pleading if it is unnecessary, scandalous, frivolous, vexatious or tends to
prejudice, embarrass or delay fair trial of the suit.
(14) A Court may allow amendment of pleadings.
(15) Forms in Appendix A of the Code should be used wherever they are applicable. Where they are not applicable,
forms of like nature should be used.
(16) Every pleading should be divided into paragraphs, numbered consecutively. Each allegation or averment should
be stated in a separate paragraph. Dates, totals and numbers should be written in figures as well as in words.

Amendment of Pleadings
Amendment is the formal revision or addition or alteration or modification of the pleadings. Provisions for the
amendment of pleadings are intended for promoting the ends of justice and not for defeating them. Rules 17 and 18
of Order VI of Code of Civil Procedure, 1908 deals with provisions regarding amendment of pleadings and failure to
amend after order respectively. Rule 17 of the Code of Civil Procedure, 1908 provides that, “The Court may at any
stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as
may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real
questions in controversy between the parties.

Proviso to the Rule 17 of Order VI of Code of Civil Procedure, 1908 as inserted by the Code of Civil Procedure
(Amendment) Act, 2002 restricts and curtails power of the Court to allow amendment in pleadings by enacting that
no application for amendment should be allowed after the trial has commenced, unless the Court comes to the
conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of
trial.

Amendment of pleadings when granted:- Amendment of pleadings can be granted by the Court in two situations
namely, (i) where the amendment is necessary for the determination of the real question in controversy; and (ii) can
the amendment be allowed without injustice to the other side.

Amendment of pleadings when refused:- Amendment of pleadings can be refused in many circumstances.
Following are the situations or circumstances when amendment of pleadings can be refused by the Court:-
(1) When the proposed amendment is unnecessary.
(2) When the proposed amendment causes an injury to the opposite party which cannot be compensated for by
costs.
(3) When the proposed amendment changes the nature of the case.
(4) When the application for amendment is not made in good faith.
(5) When there has been an excessive delay in filing the amendment application.

Failure to amend:- Rule 18 of Order VI of Code of Civil Procedure, 1908 deals with this issue. It provides that if a
party who has obtained an order for leave to amend does not amend accordingly within the time limited for that
purpose by the order, or if no time is thereby limited then within 14 days from the date of the order, he shall not be
permitted to amend after the expiration of such limited time as aforesaid or of such 14 days, as the case may be,
unless the time is extended by the Court.
Counter claim , Set-off

Meaning of counterclaim:- Counterclaim means a claim made by the defendant in a suit against the plaintiff. It is a
claim independent of, and separable from, the claim of the plaintiff which can be enforced by a cross-action.
Generally, it is a cause of action against the plaintiff but in favour of the defendant. It is treated as plaint of the
defendant against the plaintiff and governed by the rules applicable to the plaints. A plaintiff may file a written
statement against the counter claim of the defendant.

Doctrine of counterclaim explained:- Defendant has a plea to defeat the relief sought by the plaintiff against him is
a counterclaim. Therefore, in addition to his right of set-off, a defendant in a suit may set up a counterclaim. It may
be set up only in respect of a claim for which the defendant is entitled to file a separate suit. But, before the
amendment act 1976, there was no specific provision for counterclaim in the code.

Object:- Before the Amendment Act of 1976, no counterclaim or set-off could be claimed except in money suits.
Law commission’s 27th report at pp.150-51 the Law Commission recommenced to avoid multiplicity of proceedings,
right to the defendant to raise a plea of set-off in addition to a counterclaim in the same suit.

Main object of counterclaim are as follows:-

1. For the save the time of the courts,

2. For the avoiding the multiplicity of the suit,
3. For exclude the inconvenience to the parties to the litigation,
4. For deciding the all disputes between the same parties to avoid the multiplicity of the suit,
5. For avoid the prolong trails, etc.

Modes of setting up counterclaim:- There are three modes of pleading or setting up a counterclaim in a civil suit,
which are as follows:-

1. In the written statement filed under Order 8 Rule 1;

2. By amending written statement with the leave of the court and setting up counterclaim; and
3. In a subsequent pleading under Order 8 Rule 9.

Who may file? :- Normally, counterclaim may be filed by the defendant against the plaintiff. But sometime or
incidentally and along with the plaintiff, the defendant may also claim relief against the co-defendants in the suit.
But a counterclaim solely against co-defendants is not maintainable.

When it may be set up?:- A counterclaim may be set up by a defendant against a plaintiff in respect of the cause of
action accruing either before or after filing of the suit, provided such claim is nit barred by limitation.

Effect of counterclaim:- Under this rule a counterclaim has the effect of a cross- suit and the court can pronounce a
final judgment both in the original claim and the counterclaim. Counterclaim of the defendant will be treated as a
plaint and the plaintiff can file a written statement in answer to the counterclaim of the defendant and the rules of
the file a plaint will also applicable to it. Similarly, a reply filed in answer to a counterclaim shall be treated as a
written statement and governed by the rules of the written statement.

In a case where even if the suit of the plaintiff is stayed, discontinued, dismissed or withdrawn, the counterclaim
will be decided on merits, and the defendant will have entitled to get a decree for a counterclaim as claimed in the
written statement. In case where the plaintiff does not file any reply to the counterclaim, the court may pronounce
the judgment against the plaintiff in relation to the counterclaim filed by the defendant.
Counterclaim at the appellate stage:- An appellate authority has no power to entertain counter-claim at the
appellate stage made for the first time.

Conclusion:- The code of Civil Procedure makes it clear that the counterclaim has to be treated as a cross-suit and
to be tried along with the original claim and it will governed by the rules of the pleading. It will also considered as
plaint of the defendant against the plaintiff. The counterclaim only will be admitted where a separate suit can be
filed on that matter of the counterclaim. It change the position of the plaintiff and defendant vice-versa.

Set – off

Introduction :- Under order 8 of the code a defendant files a written statement in reply of the plaint of the plaintiff,
in this if any situation arises where the plaintiff files a suit of recovery of money from the defendant, but at same
time defendant also has some debt on the plaintiff, in this case the defendant may claim for the set off the amount
against the plaintiff recoverable by him. For the setting off the amount defendant has to state the fact in written
statement filed by him. Provisions regarding the set-off has defined under Order 8 Rule 6 of cpc .

Meaning of set-off :- Before starting further we should know about the set-off. Set-off means a claim by the
defendant against the plaintiff or a plea in defence available to the defendant. It is a cross claim between the parties
to the suit regarding their recovery of money. It is destruction of the debts of which two persons are reciprocally
debtors to one other. As the case may be where there are mutual debts between the parties (plaintiff and
defendant), one debt may be settled against the other.

When it may arise:- Where in a suit for recovery of money by the plaintiff the defendant finds that he has also a
claim of some amount against the plaintiff, then he can also file for set-off the said amount. For example ; Mahesh
sues Rakesh on a bill of exchange for Rs.1000. Rakesh holds a judgment against Mahesh for Rs. 3000. The two claims
being both definite and ascertain, pecuniary demands may be set-off.

Essential conditions:- A defendant may claim a set=off , if he satisfied the conditions follow as under-

1. The suit must relate to recovery of money;

2. The sum of money must be ascertained or definite;

3. Above said sum must be recoverable legally;

4. The sum of money must be recoverable by the defendant or by all the defendants, in case of more then one
defendants;

5. It must be recoverable from the plaintiff by defendant;

6. It must not exceed the pecuniary limits of the court in which the suit is brought;

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

Effect of set-off:- In claim of set-off there are two suits, one by the plaintiff, and the other by defendant against the
plaintiff, they are tried together, no separate suit is necessary. In such a case, when defendant claims set-off , he will
stand in the position of the plaintiff in regards the amount claimed by him. In such case if plaintiff doesn’t appear
and his suit is dismissed for default, or he withdraws his suit, etc. it does not affect the claim of the defendant for
set-off and a decree may be passed by the court in favour of the defendant if he is able to prove his claim.
Conclusion:- At last we can say about the set-off, that it is an extinction of debts of which two persons are
reciprocally debtor to one another. For example; if a person A sues B for Rs. 2000, B claims for Rs. 1000 against the
A, here two claims may be set-off, it is a extinction of the debt of the one persons against the other (Rs.1000).

Summons- What are Summons ? How are they served ? Mode of their Service

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

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

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

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

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

Below is the content relating to summons under CrPc.

How should be the form of Summons- Section 61 – Every summons issued by a court under this Code shall be in
writing, in duplicate, signed by the presiding officer of such court or by such other officer as the High Court may,
from time to time, by rule direct, and shall bear the seal of the court.

Mode of Service of Summons – Section 62-

(1) Every summons shall be served by a police officer, or subject to such rules as the State Government may make in
this behalf, by an officer of the court issuing it or other public servant.

(2) The summons shall, if practicable, be served personally on the person summoned, by delivering or tendering to
him one of the duplicates of the summons.

(3) Every person on whom a summons is so served shall, if so required by the serving officer, sign a receipt therefore
on the back of the other duplicate.

Service of Summons on Corporate Bodies – Section 63 – Service of a summons on a corporation may be effected
by serving it on the secretary, local manager or other principal officer of the corporation, or by letter sent by
registered post, addressed to the chief officer of the corporation in India, in which case the service shall be deemed,
to have been effected when the letter would arrive in ordinary course of post.

Explanation:- In this section “corporation” means an incorporated company or other body corporate and includes a
society registered under the Societies Registration Act.1860

Service of summons when person serving cannot be found -Section 64 – Where the person summoned cannot, by
the exercise of due diligence be found, the summons may be served by leaving one of the duplicates for him with
some adult male member of his family residing with him, and the person with whom the summons is so left shall, if
so required by the serving officer, sign a receipt therefore on the back of the other duplicate.

Explanation :- A servant is not a member of the family within the meaning of this section.

Procedure when service cannot be effected as before provided – Section 65 – If service cannot by the exercise of
due diligence be effected as provided in section 62, section 63 or section 64, the serving officer shall affix one of the
duplicates of the summons to some conspicuous part of the house or homestead in which the person summoned
ordinarily resides, and thereupon the court, after making such inquiries as it thinks fit, may either declare that the
summons has been duly served or order fresh service in such manner as it considers proper.

Service of Summons on a Government servant – Section 66 –

(1) Where the person summoned is in the active service of the Government, the court issuing the summons shall
ordinarily send it in duplicate to the head of the office in which such person is employed: and such head shall
thereupon cause the summons to be served in the manner provided by section 62, and shall return it to the court
under his signature with the endorsement required by that section.

(2) Such signature shall be evidence of due service.

Service of summons outside local limits – Section 67 – When a court desires that a summons issued by it shall be
served at any place outside its local jurisdiction, it shall ordinarily send summons in duplicate to a Magistrate within
whose local jurisdiction the person summoned resides, or is, to be there served.

Proof of service in such cases and when serving officer not present- Section – 68 –
(1) When a Summons issued by a court is served outside its local jurisdiction, and in any case where the officer who
has served a summons is not present at the hearing of the case, an affidavit, purporting to be made before a
Magistrate, that such summons has been served, and a duplicate of the summons purporting to be endorsed (in the
manner provided by section 62, or section 64) by the person to whom it was delivered or tendered or with whom it
was left, shall be admissible in evidence, and the statements made therein shall be deemed to be correct unless and
until the contrary is proved.

(2) The affidavit mentioned in this section may be attached to the duplicate of the summons and returned to the
court.

Service of summons on witness by post – Section 69 –

(1) Notwithstanding anything contained in the preceding section of this Chapter, a court issuing a summons to a
witness may in addition to and simultaneously with the issue of such summons, direct a copy of the summons to be
served by registered post addressed to the witness at the place where he ordinarily resides or carries on business or
personally works for gain.

(2) When an acknowledgment purporting to be signed by the witness or an endorsement purporting to be made by
a postal employee that the witness refused to take delivery of the summons has been received, the court issuing the
summons may declare that the summons has been duly served.

Essentials of a summons: Every summons shall:

(i) intimate to the defendant of the date of hearing and whether he is to appear in person or by a pleader;

(ii) contain a direction whether the date is fixed for settlement of issues only or final disposal of the suit, and

(iii) order the defendant to produce all documents in his possession or power upon which he intends to rely in
support of his case. A summons in a small cause court suit shall be for final disposal and shall direct the defendant to
produce his witnesses on the date fixed upon whose evidence he intends to rely in support of his case.

UNIT – II

Consequences of Non appearance of parties (Order 9)

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

Rule 1 – Parties to appear on day fixed in summons for defendant to appear and answer— On the day fixed in the
summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person
or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed
by the Court.

Dismissal of Suit
Rule 2 – Dismissal of suit where summons not served in consequence of plaintiffs failure to pay cost— Where on the
day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of
the plaintiff to pay the court-fee or postal charges (if any) chargeable for such service, or to present copies of the
plaint or concise statements, as required by rule 9 of order VII, the Court may make an order that the suit be
dismissed :
Provided that no such order shall be made, if, notwithstanding such failure the defendant attends in person (or by
agent when he is allowed to appear by agent) on the day fixed for him to appear and answer.

Rule 3 – Where neither party appears, suit to be dismissed— Where neither party appears when the suit is called
on for hearing, the Court may make an order that the suit be dismissed.

Rule 4 – Plaintiff may bring fresh suit or Court may restore suit to file— Where a suit is dismissed under rule 2 or
rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the
dismissal aside, and if he satisfies the Court that there was sufficient cause for such failure as is referred to in rule 2,
or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall
appoint a day for proceeding with the suit.

Rule 5 – Dismissal of suit where plaintiff after summons returned unserved, fails for one month to apply for fresh
summons—
(1) Where after a summons has been issued to the defendant, or to one of several defendants, and returned
unserved the plaintiff fails, for a periods of one month from the date of the return made to the Court by the officer
ordinarily certifying to the Court returns made by the serving officers, to apply for the issue of a fresh summons the
Court shall make an order that the suit be dismissed as against such defendant, unless the plaintiff has within the
said period satisfied the Court that—
(a) he has failed after using his best endeavours to discover the residence of the defendant, who has not been
served, or
(b) such defendant is avoiding service of process, or
(c) there is any other sufficient cause for extending the time, in which case the Court may extend the time for
making such application for such period as it thinks fit.
(2) In such case the plaintiff may (subject to the law of limitation) bring a fresh suit.

Ex parte Proceeding
Rule 6 – Procedure when only plaintiff appears—
(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then—
(a) When summons duly served—if it is proved that the summons was duly served, the Court may make an order
that the suit shall be heard ex parte.
(b) When summons not duly served—if it is not proved that the summons was duly serve, the Court shall direct a
second summons to be issued and served on the defendant;
(c) When summons served but not in due time—if it is proved that the summons was served on the defendant, but
not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall
postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be
given to the defendant.
(2) Where it is owing to the plaintiffs’ default that the summons was not duly served or was not served in sufficient
time, the Court shall order the plaintiff to pay the costs occasioned by the postponement.

Rule 7 – Procedure where defendant appears on day of adjourned hearing and assigns good cause for previous non-
appearance— Where the Court has adjourned the hearing of the suit ex-parte and the defendant, at or before such
hearing, appears and assigns good cause for his previous non-appearance, he may, upon such terms as the Court
directs as to costs or otherwise, be heard in answer to the suit as if he had appeared on the day, fixed for his
appearance.

Absence of Plaintiff
Rule 8 – Procedure where defendant only appears— Where the defendant appears and the plaintiff does not
appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the
defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon
such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the
remainder.

Rule 9 – Decree against plaintiff by default bars fresh suit—

(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit
in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies
the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court
shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall
appoint a day for proceeding with suit.
(2) No order shall be made under this rule unless notice of the application has been served on the opposite party.
Multiple plaintiffs and/or Defendants

Rule 10 – Procedure in case of non-attendance of one or more of several plaintiffs— Where there are more
plaintiffs than one, and one or more of them appear, and the others do not appear, the Court may, at the instance
of the plaintiff or plaintiffs appearing, permit the suit to proceed in the same way as if all the plaintiffs had
appeared, or make such order as it thinks fit.

Rule 11 – Procedure in case of non-attendance of one or more of several defendants— Where there are more
defendants than one, and one or more of them appear, and the others do not appear, the suit shall proceed, and
the Court shall, at the time of pronouncing judgment, make such order as it thinks fit with respect to the defendants
who do not appear.

General Consequence of Non appearance

Rule 12 – Consequence of non-attendance, without sufficient cause shown, of party ordered to appear in person—
Where a plaintiff or defendant, who has been ordered to appear in person, does not appear in person, or show
sufficient cause to the satisfaction of the Court for failing so to appear, he shall be subject to all the provisions of the
foregoing rules applicable to plaintiffs and defendants, respectively who do no appear.

This means either the suit will be dismissed or will be continued ex parte.

Ex parte Decree (Order 9)

As per Rule 6, if the defendant fails to appear before the court in spite of a proper service of the summons, the court
may proceed ex-parte and may pass a decree in favor of the plaintiff. This is called an ex-parte decree. In the case of
Hochest Company vs V S Chemical Company, SC explained that an ex parte decree is such decree in which defendant
did not appear before court and the case is heard in the absence of the defendant from the very beginning.

Remedies available to the defendant against an ex parte decree

1. Application to set aside the ex parte decree – As per Order 9, Rule 13, a defendant may apply before the court
that passed the decree to set it aside. If he satisfies the court that the summons was not duly served or he was
prevented by any other sufficent cause from attending the hearding, the court shall make an order setting aside the
decree. For example, bona fide mistake as to the date or hearing, late arrival of train, etc. are sufficient causes for
absence of the defendant. Such an application for setting aside may be made within 30 days from the date of decree
as per Section 123 of Limitation Act.

Setting aside decrees ex parte

Rule 13 – Setting aside decree BIex parte against defendant— In any case in which a decree is passed ex parte
against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he
satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from
appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against
him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for
proceeding with the suit;
Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may
be set aside as against all or any of the other defendants also:
Provided further that no Court shall set aside a decree passed ex parte merely on the ground that there has been an
irregularity in the service of summons, if it is satisfied that the defendant had notice of the date of hearing and had
sufficient time to appear and answer the plaintiff’s claim

Explanation.—Where there has been an appeal against a decree passed ex parte under this rule, and the appeal has
been disposed of an any ground other than the ground that the appellant has withdrawn the appeal, no application
shall lie under this rule for setting aside that ex parte decree.

Rule 14 – No decree to be set aside without notice to opposite party— No decree shall be set aside on any such
application as aforesaid unless notice thereof has been served on the opposite party.

The court may impose conditions as it may deem fit on the defendant for setting asided the decree. It may ask the
defendant to pay costs.

When an ex parte decree is set aside, the court should proceed to decide the suit as it stood before the decree. The
trial should commence de novo and the evidence that had been recorded in the ex parte proceeding should not be
taken into account.

This remedy is specifically meant for an ex parte decree.

2. Prefer an appeal against the decree under Section 96(2).
3. Apply for review under Order 47 Rule 1.
4. File a suit on the ground of fraud.
All the above remedies are concurrent and can be pursued concurrently.

Disposal of the suit at first hearing ( order 15)

A Court may also dispose of the suit in it's very first hearing, on any one of the following grounds: -

1. No issue:

If no relevant issue is raised before the court, by either of the parties during first hearing, the court may
dispose of the suit.

2. One Of Several Defendants Not At Issue :

 If there are more than one defendant, and any of the defendant is not in issue i.e. not connected with the
case filed, then the court may dispose of the suit against or in favorof such defendant only.

 With respect to other defendants, the suit will continue in its usual course.

Failure to produce evidence: If either party, fails to produce evidence without any justifiable reasons, then the court
may pass a judgment, without going any further.
Irrelevant parties: If irrelevant parties have been imploded in the plaint, the court may either order for deletion of
such names, or out rightly reject the suit.

Security to be deposited by defendant or plaintiff ( order 24 & 25)

 The court may order the defendant to deposit a specific amount of money, in a suit filed against him for
recovery of any debt.

 he court may also order plaintiff to deposit any kind of security, on an application made by the defendant

 Such an order is passed, to ensure the Bonafide and Integrity of the parties to the suits.

What is Discovery by interrogatories? What is the meaning Particular interrogatories to be submitted? What is
Costs of interrogatories? What is Form of interrogatories? What are Corporations? What are Objections to
interrogatories by answer? What is Setting aside and striking out interrogatories? What is Affidavit in answer,
filing? Rule 1, 2, 3, 4, 5, 6, 7 and 8 of Order XI of Code of Civil Procedure 1908

Rule 1 Order XI of Code of Civil Procedure 1908 "Discovery by interrogatories"

In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination
of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note
at the foot thereof stating which of such interrogatories each of such persons is required to answer : Provided that
no party shall deliver more than one set of interrogatories to the same party without an order for that purpose :
Provided also that interrogatories which do not relate to any matters in question in the suit be deemed irrelevant,
notwithstanding that they might be admissible on the oral cross-examination of a witness.

Rule 2 Order XI of Code of Civil Procedure 1908 "Particular interrogatories to be submitted"

On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall
be submitted to the Court. In deciding upon such application, the Court shall take into account any offer, which may
be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce
documents relating to the matters in question, or any of them, and leave shall be given as to such only of the
interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving
costs.

Rule 3 Order XI of Code of Civil Procedure 1908 "Costs of interrogatories"

In adjusting the costs of the suit inquiry shall at the instance of any party be made into the propriety of exhibiting
such interrogatories, and if it is the opinion of the taxing officer or of the Court, either with or without an application
for inquiry, that such interrogatories have been exhibited unreasonably, vexatiously, or at improper length, the cost
occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in fault.

Rule 4 Order XI of Code of Civil Procedure 1908 "Form of interrogatories"

Interrogatories shall be in Form No. 2 in Appendix C, with such variations as circumstances may require.

Rule 5 Order XI of Code of Civil Procedure 1908 "Corporations"

Where any party to a suit is a corporation or a body of persons, whether incorporated or not, empowered by law to
sue or be sued, whether in its own name or in the name of any officer or other person, any opposite party may
 apply for an order allowing him to deliver interrogatories to any member or officer of such corporation or body, and
an order may be made accordingly.

Rule 6 Order XI of Code of Civil Procedure 1908 "Objections to interrogatories by answer"

Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona
fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, or on the
ground of privilege or any other ground, may be taken in the affidavit in answer.

Rule 7 Order XI of Code of Civil Procedure 1908 "Setting aside and striking out interrogatories"

Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or
struck out on the ground that they are prolix, oppressive, unnecessary or scandalous; and any application for this
purpose may be made within seven days after service of the interrogatories.

Rule 8 Order XII of Code of Civil Procedure 1908 "Affidavit in answer, filing"

Interrogatories shall be answered by affidavit to be filed within ten days or within such other time as the Court may
allow.

Framing of Issues

Introduction - Once the pleadings are complete issues are framed in civil, criminal, tax or other related matter
proceedings. When one party affirms and other party denies material propositions of fact or law, then only issue
arises’. If there is no specific denial, the question of framing of issue does not, generally, arise. The plaintiff must
allege such material propositions in order to show his ‘right to sue’. In the same way, defendant must allege as to
what constitute his defense. Unless each material proposition is affirmed by the plaintiff and denied by the
defendant, a distinct issue will not form.

If defendant makes no defense, framing and recording issue by the Court does not arise. In such a case, a Court need
not frame and record a issue in as much as the defendant makes no defense at the first hearing of the suit.

Important Points

1. According to Order XIV Rule 1(4) of the C.P.C, issues are of two kinds.

a) Issues of fact

b) Issues of Law

2. Court to pronounce judgment on all issues even if case may be disposed of on a preliminary issue, the Court shall,
subject to the provisions of pronounce judgment on all issues.

3. Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part
thereof may be disposed of on an issue of law only, it may try that issue first, if that issue relates to-

(a) The jurisdiction of the Court, or

(b) A bar to the suit created by any law for the time being in force,

And for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been
determined, and may deal with the suit in accordance with the decision on that issue.
 Materials from which issues may be framed

The Court may frame the issues from all or any of the following materials: -

(a) Allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of
such parties;

(b) Allegations made in the pleadings or in answers to interrogatories delivered in the suit;

(c) The contents of documents produced by either party.

Postponement of Framing of Issues - Where the Court is of opinion that the issues cannot be correctly framed
without the examination of some person not before the Court or without the inspection of some document not
produced in the suit, it may adjourn the framing of the issues to a future day, and may (subject to any law for the
time being in force) compel the attendance of any person or the production of any document by the person in
whose possession or power it is by summons or other process.

Amendment of Issues Framed

Power to amend and strike out issues is as follows:

(1) The Court may at any time before passing a decree amend the issues or frame additional issues on such terms as
it thinks fit, and all such amendments or additional issues as may be necessary for determining the matters in
controversy between the parties shall be so made or framed.

(2) The Court may also, at any time before passing a decree, strike out any issues that appear to it to be wrongly
framed or introduced.

Questions of fact or law may by agreement be stated in form of issues

Where the parties to a suit are agreed as to the question of fact or of law to be decided between them, they may
state the same in the form of an issue, and enter into an agreement in writing that, upon the finding of the Court in
the affirmative or the negative of such issue-

(a) A sum of money specified in the agreement or to be ascertained by the Court, or in such manner as the Court may
direct, shall be paid by one of the parties to the other of them, or that are of them be declared entitled to some
right or subject some liability specified in the agreement:

(b) Some property specified in the agreement and in dispute in the suit shall be delivered by one of the parties to the
other of them, or as that other may direct; or

(c) One or more of the parties shall do or abstain from doing some particular act specified in the agreement and
relating to the matter in dispute.

Court, if satisfied that agreement was executed in good faith, may pronounce judgment, where the Court is
satisfied, after making such inquiry, as it deems proper-

(a) The agreement was duly executed by the parties;

(b) They have a substantial interest in the decision of such question as aforesaid, and

(c) The same is fit to be tried and decided,

It shall proceed to record and try the issue and state its finding or decision thereon in the same manner as if the
Court had framed the issue and shall, upon the finding or decision on such issue, pronounce judgment according to
the terms of the agreement; and, upon the judgment so pronounced a decree shall follow.

Interim order and its kinds

Introduction

An injunction is a prohibitive writ issued by a court of equity, at the suit of a party complainant, directed to a
party defendant in the action, or to a party made a defendant for that purpose, forbidding the latter to do some act,
or to permit his servants or agents to do some act, which he is threatening or attempting to commit, or restraining
him in the continuance thereof, such act being unjust and inequitable, injurious to the plaintiff, and not such as can
be adequately redressed by an action fit law.[1]

For example, if it so happens that a person is demolishing a building you have possible claims on, you may ask the
competent court to order such person to not demolish the building until the trial for the claim of the building is
complete and judgement goes in his favour.

The law of injunction has been provided for by the Specific Relief Act, 1963 (hereinafter, the Act), and is also
regulated by the Code of Civil Procedure, 1908 in India.

Types of Injunctions in the Indian Law

Generally speaking, there are two types of injunctions under the act [2], as mentioned below:

1. Temporary Injunction

2. Perpetual/Permanent Injunction

Temporary Injunction

Temporary injunctions, as the name suggests, are the injunctions that are given for a specific period of time or
until the court gives further orderregarding the matter in concern. They can be obtained during any stage of the
trial and are regulated by the Code of Civil Procedure (CPC), 1908[3]:

 Section 94: The section provides for supplemental proceedings, to enable the court to prevent the ends of
justice from being defeated. Section 94(c) states that a court may grant temporary injunction and in case of
disobedience commit the person guilty thereof to the civil prison and order that his property be attached
and sold. Section 94(e) of the Code enables the court to make interlocutory orders as may appear to it to be
just and convenient.

 Section 95: If it is found by the court that there were no sufficient grounds to grant the injunction, or the
plaintiff is defeated in the suit, the court may award reasonable compensation to the defendant on his
application claiming such compensation.

 Order XXXIX:

o Rule 1: It enlists the situations when a court may grant temporary injunction. These are:

1. Any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit,
or wrongfully sold in execution of a decree, or
 2. the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his
creditors,

3. the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any
property in dispute in the suit.

 Rule 2: It provides that an interim injunction may be granted for restraining the defendant from committing
a breach of contract or other injury of any kind to the plaintiff.

 Rule 3: It states that a court shall direct a notice of application to the opposite party, before granting the
injunction to the plaintiff. However, if it seems to the court that the purpose of the injunction would be
defeated by the delay, it may not provide the notice

 Rule 4: It provides for vacation of already granted temporary injunction

 Rule 5: It states that an injunction directed to a corporation is binding not only on the corporation itself, but
also on all members and officers of the corporation whose personal action the injunction seeks to restrain

In the M. Gurudas and Ors. case, the Hon’ble Supreme Court of India has opined, “while considering an application
for injunction, the Court would pass an order thereupon having regard to prima facie, balance of convenience and
irreparable injury.”

1. Prima Facie Case:

Prima Facie literally means, on the face of it. In Martin Burn Ltd. vs. R.N. Banerjee, while discussing a the meaning
of the ‘prima facie’ case, the court said:
“A prima facie case does not mean a case proved to the hilt but a case which can be said to be established if the
evidence which is led in support of the same were believed. While determining whether a prima facie case had been
made out the relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in
question and not whether that was the only conclusion which could be arrived at on that evidence.”
Prima facie case is a must to be eligible to obtain a temporary injunction. However, it is not sufficient and temporary
injunction cannot be granted if the damage that will be caused if the injunction is not given is not irreparable.

2. Irreparable Injury:

‘Irreparable injury’ means such injury which cannot be adequately remedied by damages. The remedy by damages
would be inadequate if the compensation ultimately payable to the plaintiff in case of success in the suit would not
place him in the position in which he was before injunction was refused.

3. Balance of Convenience:

In the case of Anwar Elahi, the court has clearly explained the meaning of ‘balance of convenience’. According to
the court:

“Balance of convenience means that comparative mischief or inconvenience which is likely to issue from withholding
the injunction will be greater than that which is likely to arise from granting it. In applying this principle, the Court
has to weigh the amount of substantial mischief that is likely to be done to the applicant if the injunction is refused
and compare it with that which is likely to be caused to the other side if the injunction is granted.”

Permanent Injunction

A permanent injunction can be granted by the court by passing a decree made at the hearing and upon the merits of
the suit. Once such decree is passed, the defendant is permanently prohibited from the assertion of a right, or from
the commission of an act, which would be contrary to the rights of the plaintiff.

When can a permanent injunction be granted?

A permanent injunction may be granted:

a. To the plaintiff in a suit to prevent a breach of an obligation existing in his favour, whether implicit or
explicit. However, in a case where such an obligation arises out of a contract, the court follows the rules as specified
by Chapter II of the Act. Chapter II, under Section 9 provides that a person may claim relief in respect to a contract,
by pleading in his defense, any of the ground available to him under any law relating to contracts.

b. In a case where the plaintiff invades or threatens to invade the the plaintiff’s right to, or enjoyment of, property,
the court may grant a permanent injunction where:

1. The defendant is trustee of the property for the plaintiff;

2. there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;

3. the invasion is such that compensation in money would not afford adequate relief;

4. the injunction is necessary to prevent a multiplicity of judicial proceedings.

Mandatory Injunction

If the court finds it necessary and within its capability, to compel the performance of an act, to prevent the breach
of an obligation, it may do so granting a mandatory injunction to the plaintiff, compelling the defendant to perform
the requisite acts.

Damages In Lieu of, or in Addition to Injunction

If the plaintiff claims for any additional damages along with the injunction sought for, either perpetual or
mandatory, or in substitution of the said injunction, the court may award him such damages, if it thinks fit. If no
damages have been claimed, the court may allow the plaintiff to make the required amendments to the plaint and
claim damages

However, it is highly recommended to claim damages in the plaint before submitting it, as permission for further
amendments rests solely at the discretion of the court.

The dismissal of a suit to prevent the breach of an obligation existing in favor of the plaintiff bars his right to sue for
damages for such breach.

Injunction to Perform Negative Agreement

The court can grant an injunction to not do certain acts, which are prohibited by the contract to do. The court may
do so even if it is unable to compel the performance of the affirmative terms of the contract, i.e. the terms that
requires the defendant to do (perform) certain acts. However, it is subject to the fact, whether the plaintiff has
performed the terms of the contract binding on him or not. Non performance by the plaintiff dis-entitles him from
obtaining such an injunction.

Case Laws Regarding Permanent Injunction

In the case of Jujhar Singh vs. Giani Talok Singh where a permanent injunction was sought for by a son to prevent
his father who happened to be the Karta of the Hindu Undivided Family (HUF), from selling the HUF property was
set aside. It was not maintainable because the son, also a coparcener, had got the remedy of challenging the sale
and getting it set aside in a suit subsequent to the completion of the sale.

On the other hand, granting the injunction sought would allow the son to use the injunction to prevent the father
from selling the property even if he is compelled to do so, due to legal necessities.

Where in the case of Cotton Corporation Of India vs. United Industrial Bank, an injunction was sought for to
restrain the defendants from presenting a winding-up petition under the Companies Act, 1956 or under the Banking
Regulation Act, 1949, the court dismissed the petition as it was not competent to grant, as a relief, a temporary
injunction restraining a person from instituting a proceeding in a court not subordinate to it.

The court here was of the view that if a perpetual injunction cannot be granted for the subject matter of the case
under Section 41(b) of the act, ipso facto temporary injunction cannot be granted.

Grounds for Rejection of an Application for Injunction

On the following grounds, an injunction cannot be granted:

1. To restraint a person from prosecuting a pending judicial proceeding, unless it is to prevent multiplicity of
the proceeding.

2. To restraint a person from instituting or prosecuting a judicial proceeding in a court, where the injunction is
sought from a court subordinate to that court.

3. To restrain any person from applying to any legislative body.

4. To restrain any person from instituting or prosecuting any proceeding in a criminal matter.

5. To prevent the breach of a contract the performance of which would not be specifically enforced
(Illustration: a contract between a master and servant, requiring the servant to render personal services to
the master cannot be specifically enforced by the master or the servant. Hence, an injunction cannot be
granted in this situation)

6. Where it is not reasonably clear that an act it nuisance, to prevent such an act on the ground of nuisance.

7. To prevent a continuing breach in which the plaintiff has acquiesced, as the general rule is that an
acquiescence is an implied consent by remaining silent.

8. Where except in the case of breach of trust, equally efficacious relief can certainly be obtained by any other
usual mode of proceeding.

9. When the conduct of the plaintiff or his agents has been such as to dis-entitle him to the assistance of the
court.
 10. When the plaintiff has no personal interest in the matter.

Award of interest and award of cost

Section 35:Section 35 of the Code of Civil Procedure contains the provision as to costs. The cost of an incident to all
suits are in the discretion of the Court and the court shall have full power to determine by order out of what
property and what extent such costs are to be paid. All necessary direction for these purposes will be given by the
court. Where the Court directs the costs are not to follow the events the court shall give it in writing

Section 35-A:Section 35-A deals with compensatory costs in respect of false and vexatious claims and defence. If in
any suit or proceedings, any party objects to the claim or defence on the ground that the claim or defence on any
part of it , as against the objector , is false or vexatious and if thereafter as against the objector, such claim or
defence is disallowed, abandoned or withdrawn in whole or in part , the Court if it thinks fit may , after recording its
reasons for so holding make an order for payment to the objector by the party by whom such claim or defence was
put forward , of costs by way of compensation. No court can make any such order for payment of an amount
exceeding three thousand rupees or exceeding the limits of the pecuniary jurisdiction , whichever amount is less.
The amount of any compensation awarded under this section in respect of false claim or defence has to be taken
into account in any subsequent suit for damages or compensation of such claim or defence.

Section 35-B:Section 35-B was amended in the Code of Civil Procedure by amendment act of 1976. It provides for
costs for causing delay. Where separate defenses have been raised by the defendant or group of defendants
payment of such costs shall be a condition precedent to the further prosecution of the defense by such defendants
as have been ordered by Court to pay such costs

The cost ordered to be paid under sub-section (1) shall not, if paid, be included in the costs awarded in the decree
passed in the suit, but if such costs are not paid, a separate order shall be drawn up indicating the amount of such
costs and the names and addresses of the persons by whom such costs are payable and the order so drawn up shall
be executable against such persons

General Rule: It is a general rule to award costs is at the discretion of the court. Normally, in civil proceedings “costs
shall follow the event”

Kinds of costs:
The code provides for the following kinds of costs:
1) General costs-Section 35;
2) Miscellaneous costs-Order 20-A;
3)Compensatory costs for false and vexatious claim or defences-Section 35-A;
4) Costs for causing delay-Section 35-B.

(1) General costs: Section 35:

The object of section 35 is to awarding costs to a litigant is to secure to him the expenses incurred by him in the
litigation.[3]It neither enables the successful party to make any profit out of it nor punishes the opposite
party.[4]The general rule relating to cost is that cost should follow the event, i.e. a successful party must get the
costs and the losing party should pay the other side

Principals:
The primary rules in respect of award of general cost are as under:
a) Costs are at the discretion of the court.The said discretion must be exercised on sound legal principles and not by
caprice, chance or humour. No hard and fast rules can be laid down and the discretion must be exercised
considering the facts and circumstances of each case

b) Normally, costs to follow the event and the successful party are entitled to costs unless there are good grounds
for depriving him of that right.[6]To put it differently the loser pays costs to the winner. However it does not always
depend on who wins and losses in the end. Even a successful party may be deprived of costs if he is guilty of
misconduct or there are other reasons to do so.[7]Sub-section (2) of section 35 expressly provides that when the
court orders that cost should not follow the event, it must record reasons for doing so

(2) Miscellaneous costs: Order 20-A:

Order 20-A makes specific provisions with regard to the power of the court to award costs in respect of certain
expenses incurred in giving notices, typing charges, inspecting of records, obtaining copies and producing witnesses

(3) Compensatory costs: Section 35-A:

The object of Section 35-A is to provide for compensatory costs. This section is an exception to the general rule on
which Section 35 is based, that the “costs are only in indemnity, and never more than indemnity”.[9]This section
intended to deal with those cases in which Section 35 does not afford sufficient compensation in the opinion of the
court. Under this provision, if the court is satisfied that the litigation was inspired by vexatious motive and was
altogether groundless, it can take deterrent action.[10] This section only applies to the suit and not to the appeals or
to the revisions.

The following conditions must exist before this section can be applied:
a) the claim or defence must be false or vexatious;

b) objections must have been taken by the other party that the claim or defence was false to the knowledge of the
party raising it ; and

c) such claim must have been disallowed or withdrawn in whole or in part

Maximum amount:
The maximum amount that can be awarded by the court is Rs 3000.But the person against whom an order has been
passed is not exempt from any criminal liability. In a subsequent suit for damages or compensation for false claim or
defense, the court will take into account the amount of compensation awarded to the plaintiff under this section

Other Liability:
A person against whom a order of costs is made is not exempted from any other liability in respect of false claim or
defense made by him

Appeal:
An order awarding compensatory costs is appealable .[13]But no appeal lies against an order refusing to award
compensatory costs.[14]Since such an order can be termed as “case decied”,a revision lies

(4) Costs for causing delay: Section 35-B:

Section 35-B is added by the Amendment Act of 1976. It is inserted to put a check upon the delaying tactics of
litigating parties. It empowers the court to impose compensatory costs on parties who are responsible for causing
delay at any stage of the litigation. Such costs would be irrespective of the ultimate outcome of the litigation.[16]the
payment of cost has been a condition precedent for further prosecution of the suit, if the party concerned is a
plaintiff and the defence , if he is a defendant.
The provisions of this Section are mandatory in nature and therefore the court should not allow prosecution of suit
or defence, in the event of partly failing to pay costs as directed by the court. If a party is unable to pay costs due to
circumstances beyond his control , such as strike of advocates or staff , declaration of the last day for payment of
costs as holiday, etc. the court can extend the time.
Very recently in Ashok Kumar v. Ram Kumar[19] , the Supreme Court observed that the present system of levying
meagre costs in civil matters is wholly unsatisfactory and does not act as a deterrent to luxury litigation . More
realistic approach relating to costs is the need of the hour

Conclusion
After going through the provisions of C.P.C. I come to the conclusion that Sections 35,35-A,35-B and Order 20 were
formed with the objective of awarding costs in order to avoid delay in disposal of suit and to check unnecessary
adjournments[20].Under section 35 court can award cost even suo motu and also there is no ceiling limit of amount
of cost. The cost ordered should be actual reasonable costs including cost of the time spent by successful party, the
transporting, lodging or any incidental cost besides the payment of court fee , lawyer’s fee and any other cost
relating to the litigation[21].The award of costs should always be according to the discretion of the court

UNIT – III

Suits by or against Government (Section 79 – 82 CPC)

In a suit, the Central Government may sue or be sued as the Union of India and a State Government as the State

Section 80 provides that where a suit is to be instituted against the Government or any public official for any act
purported to be done in his official capacity, the person filing the suit must give a notice of at least 2 months before
filing the suit. The difference in the case of a public official is that the suit must be instituted for acts purported to be
done by him in his official capacity. It means a series of acts and is applicable even in cases of misfeasance or non-
feasance. The act must be such as is done or would have been done in the normal course of his official duties. The
notice must either be served on the person concerned or left at their office.

The person entitled to receive the notice in such cases is –

 Where a suit is instituted against the Central Government but not the Railway department, a Secretary to the
Government

 Where a suit is instituted against the Central Government and it relates to the Railway, the General Manager
of Railways

 Where a suit is instituted against the Government of Jammu and Kashmir, the Chief Secretary to the
Government

 Where a suit is instituted against any other State Government, a Secretary to such Government or the
Collector

Where a suit is instituted against any public official, such public official.

The notice must state the cause of action, the name, description, and place of residence of the plaintiff and the
relief sought by him. It must be stated in the plaint that such a notice has been sent.
The notice is not a mere formality.

It is sent so that the government is given ample opportunity to decide on the legality of the issue with the help of its
advisors and public money is not wasted. The provision of S.80 as regards notice is mandatory and no exception
must be made. Where however immediate relief is sought, the suit may be instituted without giving such notice and
with the leave of the court. But, no relief shall be granted without giving the government or public official an
opportunity to be heard. The Government or public official concerned may even waive the requirement of notice.

Section 81 provides that where a suit is instituted against a public official for an act(s) purported to be done in his
official capacity, he shall not be arrested and his property shall not be attached unless the same is in the execution
of a decree.

Section 82 provides that where a decree is passed against the Government or a public official, the same shall not be
executed except where it remains unsatisfied for a period of 3 months from the date of passing of the decree.

Provisions under Order 27

1. Rule 1 provides that in case of a suit by or against the government, the plaint or written statement shall be
signed by any person appointed by the government in this regard by way of a general or special order. The
plaint or written statement shall be verified by a person appointed by the government and who is aware of
the facts of the case.

2. Rule 2 provides that any person who is ex officio entitled to represent the government in judicial
proceedings or is authorized by the government in this regard shall be the recognized agent who shall make
appearances, applications and do acts on behalf of the government.

3. The government pleader shall be the agent of the government for receiving all court processes. (Rule 4)

4. In fixing the date for the hearing, the court must have due to regard to the communications made to the
government, issue of instructions to the government pleader to appear, etc. (Rule 5) Such time limit may be
extended by the court but not beyond 2 months in aggregate.

5. An extension may also be granted where a public official is a defendant and he takes leave from the court to
make a reference to the government before he answers the allegations in the plaint. (Rule 7). This is also
because, in every suit against a public officer, the government is deemed to have been joined as a party.
(Rule 5-A)

6. Where the government decides to take defense for acts done by a public official, the government pleader
after having been authorized in this regard shall make an application to the court and the court shall cause
his name to be entered into the register of civil suits. (Rule 8) Where no such application is made by the
government pleader on or before the date of hearing as fixed by the notice, the proceedings shall be
deemed to be as between private parties. However, the public official in such case cannot be arrested or his
property cannot be attached, except where it is for execution of a decree.

7. The court also has the duty to assist the parties in arriving at a settlement where it is of the opinion that such
settlement is possible. It may also grant an adjournment for such purpose. (Rule 5-B)

8. The court may even direct the attendance of any person who may be able to answer material questions as
regards the matter on behalf of the government where such person doesn’t appear in court without the
government pleader. (Rule 6) No security is required to be furnished by the government or the public official.
Interpleader suit

Inter-pleader suit is a suit filed by a person who has no direct interest in the subject-matter of the suit. In other
words if the plaintiff is in possession of some article, things or property (in which he is not having direct interest or
he may be a custodian or stake holder) and if he is in a dilemma over the rivals claims of the defendants, he may file
inter-pleader suit in the competent court to have determination as to who is the actual owner of the article, things
or property.

It is a suit where there must be more than one defendants and the defendants contest against each other for the
disputed property. In an interpleader suit the plaintiff holds the movable or immovable property and files the suit
only to ascertain as to whom he should deliver the property because the defendants claim the property against each
other or they interplead against each other. In every interpleader suit, there must be some debt or sum of money or
other property in dispute between the defendants only. And the plaintiff must be a person who claims no interest
therein other than for charges or costs and who is ready to pay or deliver the property to such of the defendants as
may be decided by the court to be entitled to the property.

Section 88 of the Civil Procedure Code lays down that where two or more persons claim adversely to one another,
the same debt, sum of money or other property, movable or immovable, from another person, who claims no
interest therein other than for charges or costs and who is ready to pay or deliver it to the rightful claimant, such
other person may institute a suit of interpleader against all the claimants for the purpose of obtaining a decision as
to the person to whom the payment or delivery shall be made and of obtaining indemnity for himself .

Proviso to section 88 further says that where any suit is pending in which the rights of all parties can properly be
decided, no such interpleader suit shall be instituted.

In an interpleader suit, the contest is between the defendants for title and the plaintiff has got nothing to do with
that contest. In this respect, Rule l (a) or Order 35 of the Code of Civil Procedure mandatorily requires the plaintiff to
state that he claims no interest in the subject matter in dispute other than for charges or costs. [Mangal Bhikaji
Nagpase vs State Of Maharashtra (1997) 99 BOMLR 91 a]

According to Order 35, Rule 1, of CPC, in every interpleader suit, in addition to other statements, the plaint shall
state:-

1. That the plaintiff claims no interest in the subject matter in dispute other than the charges or costs. For
example, when consigned goods are claimed by several parties, the railway can bring an interpleader suit
claiming only a lien for freight, demurrage etc. ;

2. the claims made by the defendants severally , and

3. that there is no collusion between the plaintiff and any of the defendants .

Order 35, Rule 2, provides hat where the subject matter claimed is capable of being paid into Court or placed in the
custody of the Court, the plaintiff may be required to so pay or place it before he can be entitled to any order in the
suit.

The provision is intended to protect a bona fide person from future list that he did not discharge his obligation.
Order 36 obviates the difficulties of parties in locking themselves up in a lengthy legal battle when the crux of the
dispute depends on a single or a few points.
Suit by or against indigent persons – Order XXXIII

1. Such provision has been made so that poor people may seek relief by way of filing civil suits and they are not
made to undergo hardships.

2. These provisions exempt a person from paying the court fee at the time of presentation of his plaint and
allow him to proceed forma pauperis subject to certain conditions.

3. Rule 1 defines an indigent person as one who-

 Does not have sufficient means to pay the court fees prescribed for the suit

 Where no court fees is prescribed, such person who is not entitled to property worth Rs.1000

5. In both these cases, the property which may not be attached for execution of a decree or the subject matter
of the suit shall be exempt while calculating whether the person is an indigent person.

6. However, property acquired after filing the application to sue as an indigent person and before the court
gives a decision on such application shall be taken into consideration.

7. Where the plaintiff sues in a representative capacity, the means he possesses in such capacity shall be
considered.

8. The word person in such case shall also include a juristic person. (case law)

9. Every question as to whether or not a person is an indigent person shall be determined by the chief
ministerial officer of the court or in a manner in which the court directs. The court may either adopt the
report of the officer or may make a separate enquiry. (Rule 1-A)

10. Rule 2 provides that every application to sue as an indigent person should contain the same particulars as
that of a plaint. It must also contain a statement as regards the immovable and movable property possessed
by the person and the estimated value of the same.

11. This must be signed and verified in the same manner as pleadings are verified.

12. The application may either be presented in person by the applicant or by his agent, where he is exempted
from appearing before the court. (Rule 3)

13. Where the application is in a proper form and has been duly presented, the court may examine the applicant
where he appears in person or his agent as regards the merits of the claim and the property of the applicant.
(Rule 4)

14. The court may even issue commissions for examination of the applicant where he is exempted from
appearance and the application is presented by the agent.

15. The application stands to be rejected in the following cases-

o When it has not been filed in the manner prescribed

o When the applicant is not an indigent person

o Where the applicant has within 2 months before filing the application disposed off his property
fraudulently or he has done so to be able to sue as an indigent person. However, where even if the
 property was not disposed off, the applicant would have been an indigent person, the application will
not be rejected.

o Where the applicant enters into an agreement with another person with respect to the subject
matter of the property and thus such person gets an interest in the subject matter.

o Where any other person has entered into an agreement with him to finance the litigation.

o Where the allegations made in the application shows no cause of action.

o Where the allegations made in the application show that it would be barred by any law for the time
being in force.

16. Thereafter, the court shall fix a day where the applicant shall be allowed to put forth evidence showing that
he is an indigent person. (Rule 6)

17. At least 10 days notice must be given to the government pleader and the opposite party in such cases so that
they may try to disprove the applicant’s claim of being an indigent person.

18. At the hearing, the court shall examine the parties as well as their witnesses. (Rule 7)

19. The witnesses will only be required to be examined as regards whether or not the applicant is an indigent
person and whether or not the applicant has disposed off any property fraudulently or to be adjudged an
indigent person within 2 months before the application.

20. The parties shall be examined as regards all matters specified under Rule 5 (grounds for rejection).

21. The parties may also put forth any argument as regards the application or the evidence adduced.

22. Thereafter, the court shall decide whether to allow or disallow the applicant to sue as an indigent person.

23. Where the application is allowed, the application shall be treated as the plaint in the suit and ordinary
proceedings as in a suit shall commence. However, the applicant will not be required to pay the court fees or
any other fees as regards service of any process, appointment of a pleader, etc. (Rule 8)

24. However, under Rule 9, such permission granted may be withdrawn on an application of the defendant or
the government pleader.

25. A clear notice in writing of such withdrawal must be given to the applicant.

26. The application may be withdrawn where-

 It is shown that the applicant’s conduct was vexatious or improper.

 It is shown that the applicant has the required means and is not an indigent person.

 It is shown that the applicant entered into an agreement with a third person as regards the subject matter of
the suit and thus the third person has acquired a right as regards the property.

27. Where the plaintiff succeeds in the suit, the court fees that would have been paid by him had he not been
adjudged an indigent person shall be paid by such person as the decree may order to the State Government.
 28. Where the plaintiff (a) fails in the suit or (b) the permission granted to him to sue as an indigent person is
withdrawn or (c) where the suit is withdrawn or dismissed because the summons on the defendant is not
served properly due to the failure of the plaintiff to pay court fees or postal charges or because the plaintiff
does not appear at the time of hearing, the court shall order the plaintiff or his co-plaintiff to pay the court
fees which he would have had to pay had he not been an indigent person. (rule 11)

29. Where the plaintiff or his co-plaintiff, suing as indigent persons die, the State Government may recover the
court fees from the estate of the deceased. (Rule 11-A)

30. In both the abovementioned cases (Rules 11 and 11-A), the amount shall be recoverable by the Collector
when a copy of the order is forwarded to him. (rule 14)

31. Where the application of a person to sue as an indigent person has been refused, he shall not be allowed to
sue in such capacity at a later stage. (rule 15)

32. However, he may institute an ordinary suit provided he pays the costs incurred by the defendant and the
State Government in opposing his application.

33. Such payment must be made either at the time of institution of the suit or at any other time as may have
been specified. The court shall be at the discretion to extend such time period from time to time.

34. Further, the suit will be deemed to have been instituted on the day the application to sue as an indigent
person was filed.

35. A defendant setting up a counter claim or set-off may even do so in the capacity of an indigent person. In
such case all the provisions applicable to the plaintiff suing as an indigent person will become applicable to
him. (Rule 17)

36. Rule 18 empowers the Central or State governments to make provisions for providing free legal services to
indigent persons.

37. The High Court may implement the same with the leave of the State government.

38. These provisions may state the nature and extent of legal aid, the matters to which they shall relate, the
agencies which shall provide for legal aid, etc

Summary Suits in Code of Civil Procedure

Introduction

Summary suit or summary procedure is given in Order XXXVII of Code of Civil Procedure, 1908 (herein after referred
as CPC, 1908) whose object is to summaries the procedure of suit in case the defendant is not having any defence.

Application & Scope

This order is applicable to

1. All the suits upon bills of exchange, hundies, and promissory notes.

2. The suits wherein the plaintiff seeks to recover a debt payable by the defendant, arising either on a written
contract or on an enactment where the sum sought to be recovered is fixed or on a guarantee where the
claim against the principal is in respect of a debt.
A suit can be instituted under this order in High Court, City Civil Court, Court of Small Causes or any other Court
notified by the High Court.

Institution

In order to institute a suit under this Order, it is necessary that the nature of suit must be among the one mentioned
in the above paragraph. If the category is satisfied, then the suit can be instituted by presenting a plaint in any Court.
The plaint shall have to contain the specifications mentioned in Rule 2(1) of CPC.

Proceedings

Once the suit is instituted, summon of the suit as per Rule 2(2) of CPCalong with a copy of the plaint and annexure
will be sent to the defendant. The defendant will not be defending the suit against him unless, he enters an
appearance. In case of default in appearance, the allegations of the plaintiff in the plaint will be deemed to be
admitted and a decree in accordance to that will be issued by the Court.

Defendant’s Appearance

After summon is issued to the defendant, he has ten days to make an appearance. This appearance can either be in
person or by a pleader. At anytimewithin the prescribed period of ten days, the defendant by way of an affidavit or
otherwise, can disclose such facts sufficient enough to entitle him the right to defend.

Conditions for Leave to Defend

In the case of MechaleeEng&Mafrs v Basic Equip Corporation, the court laid down certain principles for the
appearance of the defendant and his right to defend the suit in accordance with Rule 3 of Order XXXVII. These
principles are to make sure that the defendant’s right to defend is not being taken away from him and the principle
of audi alteram partem is being followed and described what can be considered as sufficient facts to entitle the
defendant right to defend and the conditions are:

1. If the defendant satisfies the Court that he has a good defence to the claim on its merits.

2. If the defendant raises a triable issue indicating that he has a fair defence.

3. If the defendant discloses such facts as may be deemed sufficient to entitle him to defend.

Further, in case of Raj Duggal v Ramesh K. Bansal, the court described what can be considered as a triable issue.
Describing, triable issue the Court gave certain conditions which need to be satisfied in order to constitute a triable
issue:

1. There is a fair dispute to be tried as to the meaning of document on which the claim is based.

2. Uncertainty as to the amount actually due.

3. Where the alleged facts are of such a nature as to entitle the defendant to interrogate the plaintiff or to cross
examine plaintiff’s witnesses.

Earlier, in the case of Santosh Kumar v Bhat Mool Singh, the Court said that there can’t be any thumb rule formula to
decide whether leave should be granted or not. It will depend on the facts and circumstances of the case

Passing of Decree
In the case of summary proceeding, a decree will be passed in the following situations:

1. In case the defendant defaults in its appearance then the allegations of the plaintiff against the defendant
will be deemed to be true and a decree in the favour of plaintiff will be issued. As per the decree the plaintiff
will be entitled to a sum which will not the exceed the sum mentioned in the summon, together with interest
at the rate which will be specified in the decree, up to the date of decree and any other sum for cost.

2. In case the defendant is allowed to defend the case against the plaintiff, the Court may direct him to give
security within a specified time and in case the defendant defaults in payment of security within the
prescribed time, then the decree will be passed in the favour of the plaintiff.

3. In case the defendant is granted the right to defend and also deposits the security within the reasonable
time, the suit will follow the ordinary course and the defendant will be asked to file a written statement
under Order VIII.

Setting aside of Decree

The Court has the power to set aside the decree that has been passed under the provisions of Order XXXVII. This
power has been enshrined on the Court by Rule 4 of Order XXXVII.

Arrest and attachement before judgement

ARREST BEFORE JUDGMENT

ORDER 38 RULES (1-4)

RULE 1.

Where defendant may be called upon to furnish security for appearance.- Where at any stage of a suit, other than a
suit of nature referred to in section 16, clauses (a) to (d), the court issatisfied, by affidavit or otherwise,

(a) that the defendant, with intent, to delay the plaintiff, or to avoid any process of the court or to obstruct or delay
the execution of any decree that may be passed against him,

(i) has absconded or left the local limits of the jurisdiction of the court, or (ii) is about to abscond or leave the local
limits of the jurisdiction of the court, or (iii) has disposed of or removed from the local limits of the jurisdiction of the
court his property or any part thereof, or (b) that the defendant is about to leave India under circumstances
affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution
of any decree that may be passed against the defendant in the suit,the court may issue a warrant to arrest the
defendant and bring him before the Court to showcause why he should not furnish security for his
appearance:Provided that the defendant shall not be arrested if he pays to the officer entrusted with theexecution
of the warrant any sum specified in the warrant as sufficient to satisfy the

plaintiff‘s claim; and such sum shall be held in deposit by the court until the suit is disposed

of or until the further Order of the court.

SCOPE OF THE ORDER:

An order of arrest before judgment of defendant is to be passed only1.

where the plaintiff is able to make out a prima facie case;2.

And on the court being satisfied with the ingredients regarding possible abscondance or disposal of properties with
intent to delay or obstruct execution of the prospective decree.

ARREST & ATTACHMENT BEFORE JUDGMENT ~ PROJECT REPORT

UNIVERSITY INSTITUTE OF LEGAL STUDIES

The jurisdiction to issue warrant and call for security is vested with the court even with regard to foreigners, just as
it is vested with the court in regard to dishonest and fraudulent Indian defendants.

And because the decree against him will have to be transmitted abroad for execution, the court is vested with the
jurisdiction to call for security.Where the judgment debtor and garnishee are situated beyond the territorial
jurisdiction of the execution court And there is no material to show that the debt payable is within the jurisdiction of
the execution court, an order prohibiting garnishees from payment to judgment-debtor is beyond the jurisdiction
of court.

A ship touching the temporarily at an Indian port is in the same position as a foreign personnel defendant who is
about to leave jurisdiction. If the claim against the ship is reasonably arguable, then to the extent of the reasonably
best decree obtainable by the plaintiff, the court can and should obtain security from the ship before releasing her
arrest.

REASONABLE PROBABILTY

Where the defendant is about to leave India, It is enough if the circumstances under which heis about to leave India
afford a reasonable probability that any decree that may be passed against him in the suit will thereby be
obstructed or delayed in the execution

SUIT MUST BE BONAFIDE

In every case when an application is made under this rule, the court must be satisfied that thesuit is bona fide.

APPEAL

An order passed under O 38, r 1, is not appealable in nature though an order under rule 2which is to be passed
when the defendant is brought before the court and where he fails tofurnish security is appealable.

RULE 2.

Security.- (1) Where the defendant fails to show such cause the court shall Order him either to deposit in court
money or other property sufficient to answer the claim against him, or tofurnish security for his appearance at any
time when called upon while the suit is pending anduntil satisfaction of any decree that may be passed against him
in the suit, or make such Order as it thinks fit in regard to the sum which may have been paid by the defendant
under the proviso to the last preceding rule.

(2) Every surety for the appearance of a defendant shall bind himself, in default of suchappearance, to pay any sum
of money which the defendant may be ordered to pay in the suit.

LIABILTY UNDER SECURITY BOND

The extent of liability of a surety on a security bond must depend on the terms thereof, and ithas been held that it
should be strictly construed. On this principle, it has been held that theliability to produce the defendant at any
hearing of the suit does not import a liability to produce him at the stage of execution of the decree.

Nor does the undertaking to produce in one court extend to producing the defendant in anyother court to which
the case might be transferred.

Where the defendant gave an undertaking not to alienate a property, which happens to be amortgaged property,
the act of mortgagee to sell the property cannot lead to breach of undertaking by the defendant.

10

Where a suit dismissed for default of appearance is again restored, an order passed under O38, r 3, becomes
thereby renewed.

11

RULE 3.

Procedure on application by surety to be discharged.- (1) A surety for the appearance of a defendant may at any
time apply to the court in which he became such surety to be discharged from his obligation.(2) On such application
being made, the court shall summon the defendant to appear or, if it thinks fit, may issue a warrant for his arrest in
the first instance.(3) On the appearance of the defendant in pursuance of the summons or warrant, or on
his voluntary surrender, the court shall direct the surety to be discharged from his obligation, and shall call upon the
defendant to find fresh security.

RULE 4.

Procedure where defendant fails to furnish security or find fresh security.-Where the defendant fails to comply with
any Order under rule 2 or rule 3, the court may commit him to

the civil prison until the decision of the Suit or, where a decree is passed against the defendant, until the decree has
been satisfied:Provided that no person shall be detained in prison under this rule in any case for a longer period
than six months, nor for a longer period than six weeks when the amount or value of the subject matter of the suit
does not exceed fifty rupees:Provided also that no person shall be detained in prison under this rule after he has
complied with such order.

ATTACHMENT BEFORE JUDGMENT: ORDER 38 RULES (5-12)

RULE 5.
Where defendant may be called upon to furnish security for production of property.-

(1) Where, at any stage of a suit, the court is satisfied, by affidavit or otherwise, that the defendant, with intent to
obstruct or delay the execution of any decree that may be passed against him,—

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the
court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be
specified in the order, to produce and place at the disposal of the court, when required, the said property or the
value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause
why he should not furnish security.

(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the
estimated value thereof.

(3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so
specified.

(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such
attachment shall be void.

OBJECT OF THE RULE 5

The main object of an attachment before judgment is to enable the plaintiff to realize the amount of decree, if one
is eventually passed, from the defendant’s property.

The object is to prevent a decree from becoming in fructuous.

The order that is contemplated by this rule is not an unconditional one directing attachment of property, but one
calling upon the defendant to furnish security or to show cause why security should not be furnished.

Order 38, rule 5 is not be used as a lever for the plaintiff to coerce to defendant to come to terms.

SCOPE OF RULE 5

An order under O 38, rule 5 can be issued only if circumstances exist as are stated therein to the satisfaction of the
court.

The affidavit in support of the contentions should not be vague and it must be properly verified.

A mere allegation that the defendant is selling off his properties is not sufficient. Particulars must be stated.

An order of attachment before judgment is a drastic remedy and the power has to be exercised with utmost care
and caution, as it may be likely to ruin the reputation of the party against whom the power is exercised.

Where the property sought to be attached is transferred before filing of the suit, the claim by creditor that transfer
was hit by s 53 of the Transfer of Property Act 1882 cannot be rejected on the ground that the transferee were not
made parties to the suit. The provision for attachment is not applicable where the property has already been
disposed of. The purchaser of the property has a right to object order of attachment as he was not a party to the
suit and had become the owner of the property before the filing of the suit.
COURT MUST BE SATISFIED

Before exercising jurisdiction under rule 5 and passing orders for the attachment of properties before judgment, the
court must satisfy itself of the practical certainty of the plaintiff’s success and of the existence of a grave danger that
the defendant is doing all things with dishonest intention of defeating or delaying the possible degree.

The court must not only be satisfied on the material, but also state the so in the order.

The plaintiff should state precisely the grounds on which the belief or apprehension can be entertained, that the
defendant is likely to dispose of, or remove the property.

That has to be some prima facie material on the basis of which the court could satisfy that the condition requisite
for making an order of attachment before judgment exist.

The circumstances that a company is in financial strain or that the debtor may be unable to pay the debt do not
warrant attachment before judgment.

NOTICE TO DEFENDANT

The order of attachment should be passed after notice to defendant.

PROPERTY

The expression ‘property’ includes the property of every description whether movable or immobile. The expression
‘his property’ refers to property of the defendant. However, it cannot be the joint property of plaintiff and the
defendant.

EFFECT

An attachment before judgment cannot be an attachment in execution of a decree. It can only become an
attachment in execution of a decree after the decree has been passed and after an application to execute such a
decree has been made.

CONDITIONAL ATTACHMENT

The court has ample power to direct conditional attachment. No prior notice is necessary in such case. It is,
however, open to the defendant and his right to show cause against attachment has not been affected.

PROPERTY SITUATED OUTSIDE JURISDICTION

Where the property sought to be attached is outside the local limits of the jurisdiction of the court, the proper
course to follow is to transmit the order for attachment to the court in whose jurisdiction the property is situated.

RULE 6.

Attachment where cause not shown or security not furnished.- (1) Where the defendant fails to show cause why
he should not furnish security, or fails to furnish the security required, within the time fixed by the court, the court
may Order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may
be passed in the suit, be attached.
(2) Where the defendant shows such cause or furnishes the required security, and the property specified or any
portion of it has been attached, the court shall order the attachment to be withdrawn, or make such other order as
it thinks fit.

HIGH COURT AMENDMENTS

Bombay, Goa, Daman and diu.- For the existing sub-rule (2), substitute the following:

“(2) Where the defendant shows such cause or furnishes the required security or gives an undertaking to the Court
to do or not to do a thing, and the property specified or any portion of it has been attached, the Court shall order
the attachment to be withdrawn, or make such other order as it think fit” (1.10.1983 and 1.4.1987).

PROPERTY SPECIFIED

The property specified is, the property specified by the plaintiff as required by r 5, sub-r (2). Such property may be
within or without the jurisdiction of the court.

If the party against whom the order is passed has never been called to furnish security or show cause, the question
of making an order under r 6 for ‘failure’ to comply with such direction does not arise. If such an order is passed, it is
void.

WRONGFUL ATTACHMENT

If the defendant does not obtain an order setting aside the attachment, he will not afterwards be entitled to
maintain a suit in tort on the ground that the attachment was wrongfully procured.

If the attachment was effected by an injunction in restraint of alienation of the defendant will not be entitled to
damages for wrongful attachment, unless he proves that he lost a chance of a profitable sale, and evidence of loss
credit is insufficient.

RULE 7.

Mode of making attachment. – Save as otherwise expressly provided, the attachment shall be made in the manner
provided for the attachment of property in execution of a decree.

As was also held in the case:Surender Singh Bajaj v M/S. Kitty Steels Limited , 22 April, 2002, that – ‘Order38 Rule
7 CPC provides that the attachment under Order38 Rule 5 shall be made in the manner provided in the attachment
of property in execution decree’.

RULE 8.

Adjudication of claim to property attached before judgment.- Where any claim is preferred to property attached
before judgment, such claim shall be adjudicated upon in the manner hereinbefore provided for the adjudication of
claims to property attached in execution of a decree for the payment of money.

RULE 9. An order for attachment will be withdrawn if the defendant furnishes security or the suit is dismissed.

RULE 10. Attachment before judgment not to affect rights of strangers, nor bar decree holder from applying for
sale. – Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not
parties to the suit, not bar any person holding a decree against the defendant from applying for the sale of the
property under attachment in execution of such decree.
RULE 11-A. Provisions applicable to attachment.-

(1) The provisions of this Code applicable to an attachment made in execution of a decree shall, so far as may be,
apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of
rule 11.

(2) An attachment made before judgment in a suit which is dismissed for default shall not become revived merely by
reason of the fact that the Order for the dismissal of the suit for default has been set aside and the suit has been
restored.

Powers and Functions of Receiver under Civil Procedure Code

The term ‘receiver’ has not been defined in the Code of C.P.C. However, the Supreme Court in Thomas vs. Indian
Bank, explained the meaning of the word receiver as an indifferent person between the parties to a cause,
appointed by the Court to receive and preserve the property or fund in litigation pendente lite, when it does not
seem reasonable to the Court that either party should hold it.

Order 40 of C.P.C. provides for Appointment, Remuneration and Duties of a receiver and Enforcement of Receiver’s
duties.

1. Appointment of receivers

1. Where it appears to the Court to be just and convenient, the Court may by order-

(a) Appoint a receiver of any property, whether before or after decree;

(b) Remove any person from the possession or custody of the property;

(c) Commit the same to the possession, custody or management of the receiver; and

(d) confer upon the receiver all such powers, as to bringing and defending suits and for the realization,
management, protection, preservation and improvement of the property, the collection of the rents and profits
thereof, the application and disposal of such rents and profits, and the execution of documents as the owner himself
has, or such of those powers as the Court thinks fit.

2. Nothing in this rule shall authorize the Court to remove from the possession or custody of property, any person
whom any party to the suit has not a present right so to remove.

2. Remuneration: The Court may by general or special order fix the amount to be paid as remuneration for the
services of the receiver.

3. Duties: Every receiver so appointed shall-

(a) Furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the
property;

(b) Submit his accounts at such periods and in such form as the Court directs;

(c) Pay the amount due from him as the Court directs; and

(d) Be responsible for any loss occasioned to the property by his willful default or gross negligence.

4. Enforcement of receiver’s duties:

Where a receiver-

(a) Fails to submit his accounts at such periods and in such form as the Court directs, or

(b) Fails to pay the amount due from him as the Court directs, or

(c) Occasions loss to the property by his willful default or gross negligence,

the Court may direct his property to be attached and may sell such property, and may apply the proceeds to make
good any amount found to be due from him or any loss occasioned by him, and shall pay the balance (if any) to the
receiver.

The status of a receiver has been appropriately explained in the leading case of Jagat Tarini Dasi vs. Naba Gopal
Chaki in the following words “The receiver is appointed for the benefit of all concerned, he is the representative of
the Court, and of all parties interested in the litigation, wherein he is appointed. He is the right arm of the Court in
exercising the jurisdiction invoked in such case for administering the property; the Court can only administer
through a receiver. For this reason, all suits to collect or obtain possession of the property must be prosecuted by
the receiver, and the proceeds received and controlled by him alone”.

5. When Collector may be appointed receiver

Where the property is land paying revenue to the Government, or land of which the revenue has been assigned or
redeemed, and the Court considers that the interests of those concerned will be promoted by the management of
the Collector, the Court may, with the consent of the Collector, appoint him to be receiver of such property.

UNIT – IV

Appeal under Criminal Procedure Code

First Appeals

 The term appeal has not been defined anywhere in the CPC.

 Appeal essentially means removal of a cause from an inferior court to a superior court to test the soundness
of the decision.

 There are 3 essential ingredients of an appeal:

(a) There must be a decision by a judicial or administrative authority.

(b) There must be an aggrieved person and it is not necessary that he must be a party to the original proceeding.

(c) There must be a reviewing body, ready and willing to entertain such appeal.

 The right to appeal is not an inherent right and must be created in express terms by statute. Thus it is
different from a right to file a suit which is an inherent right.

 The statute creating such right to appeal may also impose conditions on the same.

 It is a substantive and not a procedural right.

 However, this right accrues from the day the suit is first instituted inspite of the fact that there is no real
appeal at a later stage. It is thus governed by the law as it existed on the date of filing the suit.

 This right cannot be taken away, except for subsequently by statute, either expressly or by implication.

 An appeal is a continuation of a suit which means that the decision given by the appellate court will be
deemed to be the decision of the court of first instance.

 Such appellate court has the same powers and duties as the court of first instance.

 It may, subject to statutory limitations even examine all the evidence in the case.

 The difference here between the suit and the appeal is that in the appeal, the court reviews and corrects the
proceedings in a cause but does not create a cause.

 The order passed by the appellate authority shall be deemed to be final and operative.

 The appellate authority may either reverse the decision of the lower court or it may modify it or it may
dismiss the appeal, thereby upholding the decision of the lower court.

 The High Courts also possess revisional jurisdiction alongwith their appellate jurisdiction.

 The distinction between the two is that in case of an appeal, the court may rehear the case on the basis of
both law and fact, unless either of them is barred by statute. However, in case of a revision, the court can
only go into the matters of law and decide as to whether the lower court has followed the procedure
established by law.

 In case of revision, the higher court cannot re-examine the evidence put before the lower court, unless the
same is provided by statute.

 A first appeal is one passed against a decree of the original court while a second appeal is one passed against
the decree of the first appellate court.

 In a first appeal, questions of law, fact or both may be brought up while in case of a second appeal only a
substantial question of law may be brought up.

 A first appeal may be filed in a court which may or may not be a High court while a second appeal must
necessarily be filed in the High court.

 In case of a letters patent appeal may be filed against the decision of a single judge of a High court to a
division bench. But, there is no letters patent appeal from the decision of a single judge in case of a second
appeal.

 The court may exercise its inherent powers to pass appropriate orders under S.151 and allow for conversion
of an appeal to a revision and vice versa provided such revision or appeal has been filed within the time
prescribed for filing such proceedings. There is however no limitation on the application for conversion.

 S.96 of the CPC provides for the right to appeal from the decree passed by a court exercising original
jurisdiction.

 It does not however state as to who may file an appeal.

  However, before filing an appeal, the following 2 things must be kept in mind-

(a) The subject matter of such appeal must be a decree and thus there must be a conclusive determination of the
rights of parties as regards all or any matters of controversy in the suit.

(b) The party appealing must have been adversely affected by such decree.

 The party appealing must thus necessarily be an aggrieved person or his legal representatives.

 Such person need not be a party to the suit where he gets the leave of the court in this regard by showing
that he has infact been aggrieved by the decree passed.

 Thus, it must be shown that he is either bound by the decree or that it prejudicially affects his interests.

 This may be decided by examining as to whether or not such decree would operate as a res judicata against
him.

 Thus, the following persons may file an appeal-

(a) Any party to the original proceeding or his legal representatives

(b) Any person claiming under such party or a transferee of interests of such party

(c) Any person who has been appointed by the court as the legal guardian of a minor

(d) Any other aggrieved person after taking the leave of the court

 A party who agrees not to appeal or waives such right will not be allowed to appeal later where such
agreement is given in clear and unambiguous terms.

 Also a party who takes the benefits under a decree may be estopped from filing an appeal thereafter.

 As per S. 96(2), there may be an appeal even against an ex parte decree.

 Further, according to S. 96(3), there can be no appeal in case of a consent decree or a decree which is passed
with the consent of the parties.

 Such consent may be in the form of a lawful agreement or a compromise or it may even be presumed from
the conduct of the parties.

 However, where it is shown that the factum of the compromise is in dispute or that the compromise or
agreement has not been lawfully arrived at, this provision shall not apply.

 S. 96(4) which was inserted by the 1976 amendment introduces a bar against appeal in petty cases.

 It states that where a suit is cognizable by the Court of Small Causes and the subject matter of such suit does
not exceed Rs.10,000, an appeal shall only lie on a substantial question of law and not otherwise.

 An appeal lies against a preliminary decree. This is simply because the preliminary decree is merely a stage
before complete execution which takes place in case of a final decree.
  Hence, if a party fails to appeal from a preliminary decree, he shall be precluded from appealing against the
final decree. (S.97) Conversely , where an appeal against a preliminary decree is allowed and such decree is
set aside, the final decree automatically falls apart.

 There is always an appeal against a decree and not against a judgment. However, where a decree has not
been drawn up, an appeal may be filed against a judgment. (Order 20 Rule 6-A)

 There can however be an appeal only against a decree or an appealable order (S.143 r/w Order XLIII Rule1).
There can be no appeal against the finding of a court which is not in the nature of a decree or an appealable
order.

 However, under Order XLI Rule 22, any respondent may file cross objections against a finding of the court
with respect to an issue which ought to have been ruled in his favour, even where he has not filed an appeal,
provided he does so within a month from the date on which notice fixing the date of hearing of the appeal
has been served against him.

 Further, even where the decree is wholly or in part in his favour, the respondent may file cross objections
against any finding of the court against him.

 There can be no appeal against a dead person and an application substituting such person by his legal
representatives must be filed. The appeal will then be taken to have been filed on such date as the
application is made.

 While filing an appeal, a memorandum of appeal must necessarily be submitted.

 A memorandum of appeal is a document containing the grounds on which such appeal is invited. It is
generally filed for the purposes of the court and for the purposes of limitation.

 Rules 1 and 2 of Order XLI lay down the requirements which must be complied with for a valid memorandum
of appeal which are as follows-

(a) It must be in the form of a memorandum stating the grounds for filing the appeal.

(b) It must be signed by the appellant or his pleader.

(c) It must be presented to the court or any other officer appointed on its behalf.

(d) It must be accompanied by a certified copy of the decree.

(e) It must be accompanied by a certified copy of the judgment unless the same is dispensed with.

(f) Incase of a money decree, the appellant must deposit the decretal amount or the security, as per the court’s
discretion.

 As per Rule 2, the appellant shall not except with the leave of the court take any grounds of objection other
than those mentioned in the memorandum. This is so that the opposite party is given notice of the
objections raised.

 However, the court may suo moto decide to take such objections as it deems fit even though they haven’t
been specified in the memorandum, provided the opposite party is given sufficient opportunity to contest
such grounds.
  As per Rule 3, where the memorandum is not in correct form, the court may even reject or amend the same.
Where the memorandum is rejected, reasons shall be recorded by the court and where the memorandum is
amended; the judge must initial or sign the same.

 Rule 4 provides that where there are more than one plaintiffs/defendants, and the decree proceeds on
grounds which are common to all, the court may reverse or vary such decree in favour of all such persons.

 This rule thus gives the court the full power to do justice to all parties even where only one of them files an
appeal and not all of them are parties to such appeal.

 As the right to appeal is not a procedural right, the defence that one’s rights were adversely affected as the
appeal was not filed in an appropriate forum shall not be allowed.

 The appeal must be valued as well.

 Rule 9 of Order XLI states that the Court against whose decree the appeal is being made shall entertain the
Memorandum of appeal, make an endorsement thereon as to the date of presentation and record the same
in the register of appeals.

 However, there is no provision for transmission of such record from the trial court to the appellate court.

 Rule 5 deals with stay of proceedings or execution of a decree or order in case of an appeal. Generally
speaking, there shall be no stay of such decree or order on the mere ground that there has been an appeal
unless the appellate court passes an order to that effect and gives sufficient cause for the same.

 Such decree or order shall be stayed from the date of communication of the order of the appellate court to
the trial court. Further, in certain special circumstances even where the order of the appellate court to stay
the decree or order has not been received by the trial court, if the appellant makes a sworn statement on
affidavit that according to his personal knowledge the appellate court has infact made such order, the
proceedings or execution shall be stayed.

 Rule 5 also states that where an application for stay of execution of a decree has been made before the
expiration of the time for preferring an appeal, the Court which passes such decree may after showing
sufficient cause stay such execution.

 However, for stay of execution of decree in both these abovementioned cases, the following must be shown-

(a) That the party asking for stay would suffer substantial loss if such order is not passed.

(b) The application for stay has been made without any unreasonable delay.

(c) Security has been given by the given by the applicant for the due performance of such order/decree as may be
binding on him later.

 The court may also stay the execution ex parte pending the hearing of the application for stay.

 However, there shall be no stay if the requisite security amount is not deposited with the court.

 Rule 10 states that the court on application made by the respondents may require the appellant to deposit
security for costs to be incurred for the appeal or the original suit or for both, either before or after the
respondent is called upon to appear and answer.
 Incase of appellants who are not residents of India and have no substantial immovable property in the
country except probably for the one involved in such suit, security shall be demanded in all cases.

 Where such security is not furnished within the requisite time period, the court shall reject the appeal.
However, an application to restore such appeal even after rejection may be made within a period of 30 days
from such rejection.

 The limitation act provides that the period of limitation for filing an appeal before the High Court is 90 days
from the date of the decree and in case of any other court, within 30 days from the date of the decree.

 Rule 3-A of the CPC however states that delay in filing an appeal may be condoned if an application stating
reasons for the same and an affidavit are given to the court. If the court then wishes to allow the appeal, it
shall send out notices to the defendant.

 Where an application to condone such delay has been made, the appellate court shall not stay an execution
of a decree unless it decides to hear the appeal as under Rule 11.

 Further, under Rule 6, on an application made by the appellant, the appellate court may either on its own or
by directing the lower court order that security be taken for restitution of any property taken in the
execution of the decree or order payment of value of such property.

 Also, under this rule where under the original decree, sale of an immovable property has been ordered, the
appellate court may order stay of such sale as security till the time the appeal is disposed off.

 The powers conferred under Rules 5 and 6 are exercisable not as regards an appeal from a decree but an
appeal from an order for execution of the decree. (Rule 8)

 Rule 11 deals with summary dismissal of appeal by the appellate court after hearing the appellant or his
pleader on the fixed day.

 The appeal may also be dismissed where the appellant does not appear before the court on the day so fixed.

 The dismissal shall be notified to the court which originally passed the decree.

 Where the appellate court is not the High Court, it shall record its reasons for dismissing the appeal, give a
judgment on the same and draw up a decree.

 Every appeal under this provision shall be heard within 60 days from the date of filing the memorandum of
appeal. (Rule 11-A)

 Where the appeal is not dismissed as under Rule 11, a day shall be fixed for hearing of the appeal under Rule
12.For the same, a notice shall be issued which shall be affixed to the Appellate court house and shall also be
sent to the court from whose decree or order an appeal has been sought. (Rule 14)

 The lower court shall then serve the notice on the respondent in the same way as a summons is served.
However, the notice may even be served by the appellate court itself.

 The notice shall be accompanied by the memorandum of appeal.

 It shall not be necessary to serve a notice of any incidental proceedings in the Appellate court on the
respondent unless he was impleaded the first time in the court or where he has appeared before the court of
 first instance and filed his address for service or where he appears in appeal. However, nothing shall bar such
respondent from defending the appeal. (Check-not important)

Procedure of Hearing-

 Where the appeal has not been dismissed summarily, a date for hearing the appellant shall be fixed. Where
the Appellate court does not dismiss the appeal at once, it shall hear the respondent as well.

 Where the appellant fails to appear on the day fixed, the appeal shall be dismissed. Where the respondent
does not appear, the Appellate court shall decide against him ex parte. (Rule 17)

 However, where an appeal has been dismissed under rules 11 or 17, the appellant may apply to the court to
re-admit the appeal and where it is shown that there was sufficient cause for non-appearance, the court
shall allow the appeal to be admitted again.

 Where the appeal has been decided ex parte, the respondent may apply to the court to re-hear the appeal
and the court will allow the same where the respondent proves that the notice was not duly served on him
or that he was prevented due to some other sufficient cause from appearing.

 Further, where the court is of the opinion that a party to the suit in the lower court, who is not a party to the
appeal, is interested in the appeal, it shall adjourn the hearing and make such person a respondent in the
appeal. (Rule 20)

 Rule 22 deals with cross objections. (Very important)

 Where the suit is partly decided in favour of the appellant and partly in favour of the respondent, and where
any of the parties files an appeal, the opposite party may take the following recourse-

(a) He may file a cross appeal against the part of the decision which is against him.

(b) He may file a cross objection against the part of the decision which is against him.

(c) He may support the decree on the grounds decided in his favour as well as those against him.

 The main difference between a cross appeal and a cross objection is that a cross appeal involves two distinct
and independent proceedings while cross objections are taken in the same proceeding.

 Cross objections can be filed by a respondent where he could have appealed against any part of the decree
or where he is aggrieved by a finding in the judgment even though the decree is in his favour due to some
other finding.

 Cross objections are generally filed against an appellant. However, they may also be filed against co-
respondents where the appeal cannot be proceeded with without deciding issues between respondents
inter-se.

 However, there can be cross objections against a person who is not a party to the suit.

 The cross objections may be heard and decided on merits even where the appeal has been withdrawn or
dismissed for default.
  However, they will not be heard where the appeal has become time barred or has abated or is not
maintainable as they depend on the hearing of the appeal.

 Cross objections must be in the form of a memorandum of appeal and must be served on other party or his
pleader.

 A respondent may file cross objections even as an indigent person.

 The appeal and the cross objections must be heard together as they are part of the same proceeding.
Thereafter, the judgment shall be delivered on both the appeal and the cross objections.

 Where no cross appeal or cross objection is filed, the appellate court shall not disturb the decree of the
lower court so far as it is in the favour of the appellant.

 Court fee is payable on the cross objection in the same manner as it is payable on the memorandum of
appeal.

 Cross objections must be filed within one month from the date on which notice is served on the respondent
as regards the date fixed for the hearing.

Powers of an Appellate Court –

 To determine a case finally-

1. This is provided under S.107 and Rule 24.

2. The appellate court may determine the case finally where the evidence on record is sufficient to enable it to
do so.

3. It may or may not resettle issues in such case.

4. It is immaterial that the lower court has proceeded on an entirely different ground.

 To remand a case-

1. This has been dealt with under S.107 and Rules 23 and 23-A.

2. Remand means to send back.

3. It is where the trial court has disposed the suit on a preliminary point without recording any findings and the
decree has been reversed in appeal.

4. In such cases, the appellate court shall send back or remand the case to the trial court to decide other issues
and determine the suit.

5. A preliminary point is one on which a decision may be given to dispose off the entire suit without looking
into any other issue.
6. The appellate court may even direct the trial court to admit the suit in its original number in the register of
civil suits.

7. The evidence if any was recorded the original suit shall be used as evidence where the case is remanded to
the trial court.

8. Further, under Rule 23-A, the appellate court may remand a case to the trial court where it feels retrial is
necessary even where the trial court has not disposed the suit on a preliminary point. This suit must have
been reversed on appeal.

9. Thus, reversal is an important factor. An appellate court cannot remand a case where the judgment of the
court is not satisfactory or where the lower court has misconceived the evidence or that the conclusion has
been reached by the lower court on insufficient material.

10. An order of remand nullifies the decision of the lower court.

11. However, where a appellate court remands a case to the lower court by setting aside only certain findings,
the other findings of the lower court shall not be set aside.

12. The appellate court shall fix a date for appearance of the parties before the lower court.

13. An order of remand is appealable.

 Framing issues and referring them for trial-

1. This has been dealt with under S.107 and Rules 25 and 26.

2. Where the appellate court is of the opinion that the lower court has omitted to frame or try any issue or to
determine any question of fact as it deems important for giving the right decision, it may frame such issues
and send the case back to the lower court to try such issues.

3. It may even direct the lower court to take the additional evidence which is required.

4. Thereafter, the lower court shall try the issues and return the evidence to the appellate court with its
findings within such time as may be prescribed by the appellate court.

5. The evidence and findings of the lower court shall form part of the record of the case.

6. Any party may file objections against such findings within the stipulated time period.

7. Where objections are not filed, the appellate court shall proceed to determine the appeal.

8. An order under Rule 25 is different from a remand because in case of a remand, the entire case goes back to
the lower court for a decision. However, in case of an order under Rule 25, the case is retained in the file of
the appellate court. Only the issues are sent back to the lower court for trial and findings.

9. An order for remand is a final order and the appellate court cannot reconsider it except on review. However,
an order under Rule 25 is an interlocutory order which may be reconsidered by the appellate court which
passed it.
10. An order for remand is appealable while an order under Rule 25 is not appealable.

Taking of additional evidence-

 This has been dealt with under S.107 and Rules 27 to 29.

 Additional evidence, oral or documentary may be taken by the appellate court only in the following
circumstances-

(a) Where the lower court has refused to admit necessary evidence

(b) Where the party adducing the evidence establishes that such evidence was not within his knowledge
even after exercising due diligence at an earlier point of time

(c) Where such party establishes that even after exercising due diligence he could not produce such
evidence when the original decree was passed

(d) Where the appellate court requires any document or witness to be examined in order to pass a
judgment

 The appellate court will have to record reasons for the admission.

 Additional evidence may be taken either by the appellate court or it may direct the lower court which had
passed the decree or any other subordinate court to take such evidence and send it to the appellate court.

 The appellate court shall specify the points to which the evidence is restricted and have the same recorded.

Duties of the Appellate Court-

 To decide the appeal finally

 Not to interfere with the decree for technical errors (S.99) As per S.99-A, an order passed by a court
executing a decree should not be varied or reversed on account of any error, defect or irregularity unless the
same has prejudicially affected the decision in the case.

 Appreciation of evidence

 Recording of reasons

Judgment and Decree in Appeal-

 Section 98 and Rules 30 to 34 deal with judgment in appeal.

 S.98 provides that where an appeal is heard by a bench of more than one judge, the appeal shall be decided
in accordance with the opinion of the majority of the judges.
 Where there is no majority concurring with the varying or reversing the decree, the original decree shall be
confirmed.

 There may be a situation where the appeal is being decided by a bench comprising an even number of judges
(say 2 or 4 or 6) and there are more judges in the entire court than on the bench.

 In such a case where the bench differs on an point of law, such point of law may be decided by any number
of the remaining judges of the court and the decision shall be taken by a majority of the judges who have
heard the appeal, including the judges who heard it originally.

 This shall not affect the letters patent of any High Court.

 Rule 30 provides that the appellate court shall pronounce its judgment either at once or on later date notice
of which has been given to the parties.

 The judgment shall be pronounced after hearing both parties and their pleaders and making reference to any
proceedings of the appellate court as well as the lower court.

 The judgment shall be read out in open court.

 Where it is a written judgment, it is sufficient that only the points of determination, the decision on such
points and the final order are read out.

 Rule 31 provides that apart from the particulars mentioned above (point 10), the judgment must also state
the relief granted to the appellant where the decree is varied or reversed.

 The judgment shall be signed by the judge(s).

 As per Rule 32, the judgment may confirm, vary or reverse the original decree.

 It may even be in such form as may have been required by the parties.

 The court of appeal also has the power to make or pass any other order as is necessary even where only a
part of the decree is appealed.

 Such order may be exercised against all or any of the parties even where they had not filed an appeal or
cross objection.

 Where there are decrees in cross suits or more than one decree passed in a suit, such power shall be
exercised as regards all such decrees.

 Rule 34 states that where a judge dissents from the decision given, he shall record the order or decision
which must have been passed in his opinion and he shall also record reasons for the same.

 The decree of the appellate court shall contain the following particulars-

(a) The date of the judgment

(b) The number of the appeal

(c) The names and description of the parties

(d) The relief granted and any other adjudication made

 (e) The amount of costs incurred

(f) From what property has such costs incurred

(g) From what property and in what proportions will the costs be payable

(h) Should be signed and dated by the judges

 It shall not be necessary for the dissenting judge to sign the decree.

 A certified copy of the judgment and decree shall be furnished to the parties on payment of the requisite
amount.

 A certified copy of the judgment and decree shall also be sent to the lower court. This shall form part of the
original proceedings and shall be entered into the register of civil suits.

Second Appeals-

 S.100 to 103, 107 and 108 and Order 42 deal with second appeals.

 A second appeal can be filed only in case of a decree.

 It may be filed only with the High Court against a decision in appeal of a court subordinate to the High Court.

 A decree passed ex parte in appeal may be appealed against as well.

 A second appeal shall be allowed only where the case involves a substantial question of law. The
memorandum of appeal shall specifically mention such substantial question of law.

 A substantial question of law is one that directly and substantially affects the rights of parties. It is not a
question of general importance but one rising between the two parties.

 Where the High Court is satisfied that there is a substantial question of law involved, it shall formulate such
question and hear the appeal on such question.

 The respondent shall be allowed that argue that such a question is not a substantial question.

 However, even where a particular question has not been formulated by the court, the court may hear it for
reasons to be recorded where it is of the opinion that such a question is a substantial question.

 The second appeal must be filed within 90 days from the date of the decree which is being appealed against.

 S.100-A provides an exception to the rule in S.100.

 It states that no second appeal shall lie from a decree passed in appeal by a single judge of a High Court. This
shall be irrespective of the letters patent for any High Court.

 Another exception is that no second appeal shall lie in case of a decree where the subject matter of the
original suit is for recovery of money less than Rs.25, 000.
 Under S.103, where there is sufficient evidence on record, the High Court may determine an issue for the
disposal of the appeal which has not been determined by any of the lower courts or which has been
determined wrongly by such lower courts.

 Order 42 provides that the provisions relating to first appeals shall be applicable as far as possible to second
appeals.

 Rule 2 provides that while making an order under Rule 11 of Order 41 (dismissal of an appeal summarily), the
court shall formulate only the substantial question of law and the appellant shall not urge that any other
question be decided except with the leave of the court.

 The difference between second appeal and revision may be seen as follows-

(a) Second appeal involves a substantial question of law. Revision involves a jurisdictional error.

(b) A second appeal can be filed against a decree passed by an appellate court. Revision is allowed only
when there is no appeal.

(c) In case of a second appeal, the High Court can correct a legal error of the lower court. In case of
revision, the High Court cannot interfere with the decision of the lower court even when it is legally wrong.

(d) In case of second appeal, the High Court can decide an issue of fact. In case of revision, an issue of fact
cannot be decided.

(e) In case of revision, the High Court may refuse to interfere if it is satisfied that substantial justice has
been done. In case of second appeal, the High Court has no discretionary power and it cannot decline to
grant relief on equitable grounds.

 S.108 provides that the powers of the appellate court under S.107 shall be applicable in case of second
appeals and appeals from orders as well.

Appeals from orders-

 S. 104 to 108 and Order 43 deal with appealable orders.

 Appeals lie only from such orders as are mentioned under S.104 and Order 43.

 There shall be second appeal in case of an order.

 No appeal shall lie in case of any other order. However, where a decree is appealed from and any order is
passed which has any irregularity, defect or error and the same is important for the decision of the case, it
may be set out as an objection in the memorandum of appeal.

 Where a person does not appeal from an order of remand, he cannot appeal from the same afterwards.

 The appeal in such cases would lie to a court to which an appeal from a decree would lie.

 Where the order is passed in a court in exercise of its appellate jurisdiction and such court is not the High
Court, an appeal shall lie to the High Court. (Refer to point 4)
 Where an order is made against a party, a judgment has been passed and a decree has been drawn up, in an
appeal against the decree, the appellant may contend that the order was wrongly passed. (Rule 1-A of Order
43)

 Where a decree is passed against a party recording or refusing to record a compromise, the party may
appeal against the same. (not important)

Appeals by indigent persons-

 This is dealt with by Order 44.

 Rule 1 provides that any person who cannot pay the sufficient fee to file the memorandum of appeal may
appeal as an indigent person.

 An application to appeal as an indigent person must be accompanied by the memorandum of appeal.

 Rule 2 provides that where the application to appeal as an indigent person is rejected, the court shall require
the applicant to pay the requisite court fee within such time as may be prescribed.

 In such case the memorandum of appeal shall have the same force as it would have had the fee would have
been paid in the first instance.

 Rule 3 provides that where a person suing as an indigent person or appealing as an indigent person files an
affidavit stating that he has continued to remain an indigent person even after passing of the decree which is
appealed against (first appeal in case of a suit and second appeal in case of a first appeal), such affidavit shall
be sufficient proof of his indigent status.

 However, where the affidavit is disputed by the government pleader or the respondent, the court shall
enquire into the same.

Where the applicant becomes an indigent person after the date of the decree appealed against (first appeal
in case of a suit and second appeal in case of a first appeal), the Appellate court or any officer of such court
shall enquire into the matter if necessary.

Appeals to the Supreme Court-

 Such appeals have been dealt with under S.109 and 112 and Order 45.

 An appeal shall lie from a judgment, decree or final order of the High Court to the Supreme Court where-

(a) Such a case involves a substantial question of law of general importance.

(b) In the opinion of the High Court, such question needs to be decided by the Supreme Court.

 This shall not affect the jurisdiction of the Supreme Court under Art.136 of the Constitution or any rules
framed by the Supreme Court. (not important)

 Where any person wishes to appeal to the Supreme Court, he shall file a petition with the court whose
decree has been complained against. (Rule 2 of Order 45)

 Such petition shall be heard and disposed of within a period of 60 days.

  Under Rule 3, the petition shall state the grounds for appeal and pray for a certificate to be issued stating
that the case involves a substantial question of law or is one that needs to be decided by the Supreme Court.

 When the petition is filed, the court whose decision is being appealed against shall notify the opposite party
so that he may file his objections against the grant of the certificate.

 The petition shall be dismissed where the certificate is refused.

 Where the certificate is granted, the appellant shall deposit the required security and costs within the
specified period of time. Further security may be asked to be deposited before transmission of records to the
Supreme Court.

 Once such security and costs are paid, the court from whose decision an appeal is preferred shall declare the
appeal as having been admitted, shall notify the respondent, shall transmit to the Supreme Court a correct
copy of the record under seal and furnish copies of such papers in the suit as may be required by the parties
on payment of a certain amount.

 No notice is required to be sent to the legal representatives of a deceased respondent or a deceased

respondent where such respondent did not appear for any hearing as regards the decree in the court whose
decree is being appealed against.

 Where the appellant fails to comply with an order requiring him to furnish security, the appeal shall not
proceed to the Supreme Court.

 Rule 13 provides that even where a certificate for appeal to the Supreme Court has been granted, the decree
appealed from shall be executed unconditionally.

 The court where it deems fit on cause shown by any of the parties may impound any immovable property in
dispute, may stay the execution of the decree taking security from the appellant for due performance of the
decree or may execute the decree taking security from the respondent for due performance of the decree.

 Where an appeal is heard by the Supreme Court and any decree or order is made, any party who wishes to
execute the order may apply to the court which originally passed the decision appealed from with a petition
accompanied by the decree or order of the Supreme Court.

 Such court shall transmit the record of the Supreme Court as the Supreme Court may decide for execution.

 The orders relating to such execution shall be appealable in the same manner as the orders relating to
execution of a decree.

Review and its ground under CPC

 As a general rule, once a judgment is pronounced by a court, it becomes functus officio or it cannot be altered by such
court.

 Review is an exception to this principle wherein the same court and the same judge are allowed under special
circumstances to review their own judgment.

 However, this power must be used sparingly and only in cases where there is a grave or patent error.
  Review has its basis in the equity principle of Writ of error wherein an error caused was allowed to be rectified as it
was believed that an error caused due to human failing cannot be allowed to defeat justice.

 S.114 and Order 47 lay down the general principles as regards review.

 S.114 states that in the following cases, an aggrieved person may ask for a review-

(a) Where a decree or order is passed which is appealable under the CPC and no appeal is preferred

(b) Where a decree or order is passed which is not appealable under the CPC

(c) Where a decision is given on a reference from a Small Causes Court

 Further, Order 47 provides that the aggrieved person must also prove that-

(a) New evidence has been discovered and it was not within his knowledge even after exercising due diligence or he could
not produce the same before the court at the time the decree was passed. This allegation must be specifically proved.

(b) Where there is a mistake or error apparent on the face of the record.

(c) Where there is some other sufficient reason to allow for review.

 There is no inherent power of review. It must necessarily be conferred by law.

 Review may be allowed even where the decree passed has been appealed against.

 However, it won’t be allowed where the grounds for review and appeal are the same and the applicant in case of a
review could have alleged such ground before the appellate court as respondent.

 An application for review shall be in the same form as that of an application for appeal.

 The court may either accept or reject the application as it deems fit based on the circumstances of each case.

 Where it accepts the application, the opposite party must be notified of the same so that he may appear before the
court and be heard.

 As per Rule 5 only those judges who heard the application initially shall have the power to hear it again except where
they shall be absent for a period of six months or more after the date of application.

 This is because these judges will be in the best position to review their own judgment.

 Where there is more than one judge, the decision on the application shall be as per the view of the majority.

 Where an application for review is heard by more than one judge and the bench is divided, the application shall be
rejected.

 An order for rejection of an application of review shall not be appealable. Further, such an order is not a judgment and
thus there cannot be a letters patent appeal.

 However, an order allowing such application shall be appealable. Such an appeal may even be made as part of the
appeal from the decree or order finally passed or made in the suit.

 Where the application of a person has been rejected for non-appearance on the date fixed for the hearing, such
person may apply to have his application restored and where the court is of the opinion that there was sufficient cause
for non-appearance, it shall order the application to be restored to the file.

 The opposite party must be notified about such application for restoration.
  Where a review is granted, the court shall proceed with re-hearing the case.

 However, there can be no further review of any order passed on the review.

 The application for review must be filed within 30 days from the date of the decree or order which the applicant
wishes to review.

 As an application for review may be considered as being a proceeding and a decision on the same is a case decided,
such a decision may be subject to revision.

 The High Court’s power of review in case of writ petitions is not affected by the provisions of Order 47.

 Review by the Supreme Court of its orders or decrees are allowed under Art.137 of the Constitution.

Legal Provisions of Section 115 of Code of Civil Procedure 1908, (C.P.C.), India
– Revision
(1) The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and
in which no appeal lies thereto, and if such subordinate court appears

(a) To have exercised a jurisdiction not vested in it by law, or

(b) To have failed to exercise a jurisdiction so vested, or

(c) To have acted in the exercise of its jurisdiction illegality or with material irregularity.

The High Court may make such order in the case as it thinks fit:

[Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding an issue, in
the course of a suit or other proceeding, except where the order, if it had been made in favour of the party applying for
revision, would have finally disposed of the suit or other proceeding.]

(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the
High Court or to any court subordinate thereto.

(3) A revision shall not operate as a stay of suit or other proceeding before the Court except where such suit or other
proceeding is stayed by the High Court.

Explanation:

In this section, the expression “any case which has been decided” includes any order made, or any order deciding an issue, in
the course of a suit or other proceeding

Jurisdiction:

The word ‘jurisdiction’ is a verbal coat of many colours. Jurisdiction originally seems to have had the meaning which Lord Reid
ascribed to it in Anisminic Ltd. v. Foreign Compensation Commission [(1969) 2 A.C. 147], namely, the entitlement “to enter
upon the enquiry in question”. It has, as a result of a catena of Indian decisions, assumed a restricted meaning. Section 115
confers power of revision on the High Court in a case not subject to appeal thereto.

According to the Law Commission, errors of jurisdiction and errors apparent on the face of the record could be corrected
under Art. 227 of the Constitution. But the third clause under S. 115 could not be covered by Art. 227, viz., when the court acts
or exercises jurisdiction on the subordinate court’s acting in the exercise of its jurisdiction illegally or with material irregularity.
The remedy under Art. 227 is also costly for the poor litigants, and the remedy provided in S. 115, is, on the other hand, cheap
and easy. The Committee, however, felt that, in addition to the restrictions contained in S. 115, an overall restriction on the
scope of the applications for revision against interlocutory orders should be imposed.

Having regard to the recommendations made by the Law Commission in its Fourteenth and Twenty-seventh Reports, the
Committee recommended that S. 115 of the Code should be retained subject to the modification that no revision application
shall lie against an interlocutory order unless either of the following conditions is satisfied, namely:

(i) That if the orders were made in favour of the applicant, it would finally dispose of the suit or other proceeding; or

(ii) That the order, if allowed to stand, is likely to occasion a failure of justice or cause an irreparable injury.

The Committee felt that the expression ‘case decided’ should be defined so that the doubt as to whether S. 115 applies to an
interlocutory order may be set at rest. Accordingly the Committee have added a proviso and an Explanation to S. 115. The
proviso added to S. 115 of the principal Act renumbered as sub-s. (1) Thereof reads:

Provided that the High Court shall not, under this section, vary or reverse any order made, or any order deciding as issue, in
the course of a suit or other proceeding, except where-

(a) The order, if it has been made in favour of the party applying for revision, would have finally disposed of the suit or other
proceeding, or

(b) The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it
was made. [Under the Code of Civil Procedure (U.P. Amendment) Act No. 31 of 1978, S. 115 of the Code of Civil Procedure,
1908, stands repealed and substituted as under:

“The High Court in cases arising out of an original suit or other proceedings of the value of rupees twenty thousand and above,
including such suits or other proceedings instituted before August 1, 1978, and the District Court in any other case, including a
case arising out of an original suit or other proceedings instituted before such date, may call for the record of any case which
has been decided by any court subordinate to such High Court, or District Court, as the case may be, and in which no appeal
lies thereto, and if such subordinate court appears.

(a) To have exercised a jurisdiction not vested in it by law, or

(b) To have failed to exercise a jurisdiction so vested, or

(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court or the District Court, as
the case may be, may make such order in the case as it thinks fit:

Provided that in respect of cases arising out of original suits or other proceedings of any valuation, decided by the District
Court, the High Court alone shall be competent to make an order under this section:

Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order deciding an
issue, made in the course of a suit or other proceeding, except where (i) the order, if so varied or reversed, would finally
dispose of the suit or other proceeding; or (ii) the order, if allowed to stand, would occasion a failure of justice or cause
irreparable injury to the party against whom it was made.

Explanation:

In this section, the expression ‘any case which has been decided’ includes any order deciding an issue in the course of suit or
other proceedings.

The above provision, as stated above, extends only to Uttar Pradesh, Lucknow December 21, 1990

In section 115 of the Code of Civil Procedure, 1908, hereinafter in this chapter