Scheme Of Civil Procedure Code

CIVIL PROCEDURE CODE- I

NATIONAL LAW UNIVERSITY, ODISHA

SCHEME OF CIVIL PROCEDURE CODE

UNDER

THE

GUIDANCE

OF

MR. SWAYAMBHU MISHRA ASSISTANT

PROFESSOR

(LAW)

NATIONAL LAW UNIVERSITY, ODISHA

THIS

PROJECT IS

AUTHORED

BY-

DIKSHA GOYAL (2011/ BBA LLB/ 020)

INTRODUCTION CPC: PROCEDURAL LAW As we all know that lex loci i.e., laws of the land can be divided into two heads:  Substantive law; and  Procedural or Adjective law. Whereas substantive law determines rights and liabilities of the parties concerned, procedural law prescribes the procedure and machinery for the enforcement of those rights and liabilities. There is at the outset a vital and essential distinction between substantive and procedural law. The function of substantive law is to define the nature and extent of legal duties. The function of procedural law is to provide the machinery or the manner in which the legal rights or status and legal duties may be enforced or recognized by a court of law or other recognized or properly constituted tribunal.1 The Code of Civil Procedure is an adjective or a procedural law. It neither creates nor takes away any right. (Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46 (56): AIR 1984 SC 1004: 1984 (32) BLJR 222: (1984) 1 SCALE 528: (1984) 3 SCR 229: 1984 (16) UJ 604 (SC) ). It deals with matters related to machinery for the enforcement of substantive rights, as contra-distinguished from the substantive rights themselves. As to the latter rights, one must look elsewhere, that is, to the statute law or the general principles of law.

HISTORY

1 Halsbury's Law of England, 4th Edn., Vol. 37, pp. 18-19, para 10.

The history of Civil Procedure begins with the year 1859, when the first Uniform Code of Civil Procedure was enacted. Before that, there was no uniformity in the law of Civil Procedure applicable to the whole of the country. The maiden effort in this direction of evolving a uniform procedure was made when Sir Charles Wood, the then President of the Board for the Affairs of India instructed the Second Law Commission of India to address themselves for preparing a Code of Simple and Uniform Procedure applicable to all the Courts of the country. The first Uniform Code of Civil Procedure was enacted in the year 1859. However, the Code of Civil Procedure, 1859 was not applicable to the Supreme Courts in the presidency towns and to the Presidency Small Causes Courts. Few amendments were made therein and the Code was applied to the whole of British India, but there were many defects in it, and therefore, a new Code was enacted in 1877. This Code was again replaced in the year 1882 for the similar reasons. Finally, the present Code of Civil Procedure was enacted in the year 1908. Thus the Code of Civil Procedure consolidates and amends the laws relating to the procedure of the courts of civil judicature in India. Further the Code applies to the procedure of all courts of civil judicature, except that it does not affect any special or local law or any special jurisdiction or power conferred or any special form of procedure prescribed by or under any other law for the time being in force. Where there is a conflict between this Code and a special law, then the special law prevails over this Code on the principle that "the special law prevails over the general law".

JURISDICTION

OF

CIVIL COURTS

In general sense and also in legal diction, jurisdiction means "to hear and determine a cause applying judicial powers in relation to it." So jurisdiction can be termed as to decide a particular causes of action/dispute of civil nature where the competent court having right to

hear and determine it, disposes of the issue/dispute acting under its judicial powers. In case of Official Trustee v. Sachindra Nath Chatterjee, ( AIR 1969 SC 823: (1969) 3 SCR 92), after referring to various decisions, the Supreme Court observed, "jurisdiction must include the power to hear and decide the issue/ dispute, the authority to hear and decide the particular controversy that has arisen between the parties." Section 9 - Courts to try all suits "The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of civil nature excepting suits of which their cognizance is expressly a impliedly barred". Explanation I.-A suit in which the right to property or to office is contended is a suit of civil nature, notwithstanding that such right may depend entirely on the decision of the questions as to religious rites or ceremonies. Explanation II.-For the purposes of this section, it is immaterial whether or not any fee is attached to the office referred in Explanation I or whether or not such office is to a particular office. Section 9 of the Code of Civil Procedure, 1908 confers the power upon the civil court to try all suits of civil nature unless barred by the express provisions. For the adjudication of such suits of civil nature as described under section 9, it is not the status of the parties to the suit, but the subject-matter of it, which determines whether or not the suit is of civil nature. Again the parties are not at liberty to choose or by mutual consent to diminish the jurisdiction of a competent court. The principle is wellsettled that consent cannot confer or take away jurisdiction of a court. KINDS

OF

JURISDICTION

Jurisdiction of a Court may be classified under the following categories: (1) Territorial or local jurisdiction.-Every court is competent to adjudicate the matters/issues falling under the local limits of its jurisdiction. For example, the District Judge has to exercise the jurisdiction within his district and not outside it unless barred by pecuniary jurisdiction. And the High Court has jurisdiction over the issues relating to the concerned state. For the purpose of invoking the jurisdiction of the Court only because two causes-of-action joined in terms of the provisions of the Code of Civil Procedure, 1908, the same would not mean that thereby the jurisdiction can be conferred upon a court which had jurisdiction to try only the suit in respect of one cause-of-action and not the other. Recourse to the additional forum, however, may be taken if both the causes of action arise within the jurisdiction of the court which otherwise had the necessary jurisdiction to decide all the issues; (Dhodha House v. S.K. Maingi, (MANU/SC/2524/2005 : AIR 2006 SC 730: 2006 (1) ALD 138 (SC): 2006 (1) AWC 864 (SC): 2006 (1) BLJR 29: JT 2006 (1) SC 123: (2006) 1 MLJ 36

(SC):

2006

(32)

PTC

1

(SC):

RLW

2006

(1)

SC

543:

MANU/SC/2524/2005 : (2006) 9 SCC 41.) Section 16 of the Code deals with the territorial jurisdiction of the Courts in regard to suits mentioned in Clauses (a) to (f) of the said section. Clauses (a) to (e) deal with the immovable property and Clause (f) deals with an aspect of movable property. The jurisdiction is to be decided by considering the averments made in the plaint (Praking v. State Bank of Indore; AIR 1996 MP 28). If at the time of institution of suit, a Court has territorial jurisdiction over a property, then transfer of such property out of local jurisdiction during the pendency of suit, does not divest the jurisdiction of such Court (In re Distt. Judge; AIR 1971 Ori 89). The object of the section is that the Court who entertains a controversy regarding a property must be able to give effective Judgment. The

section embodies the already existing principles of common law. Normally, the territorial jurisdiction of a Court has to be ascertained by reference to the provisions of Sections 16 to 20, Code of Civil Procedure, but by reason of the express provision made in Section 120, Code of Civil Procedure, the provisions of Sections 16, 17 and 20 do not apply to this Court in the exercise of its ordinary original civil jurisdiction. The jurisdiction of the Bombay High Court to decide a suit in the exercise of its original civil jurisdiction is required to be ascertained under Clause 12, Letters Patent (Fazlehussein Haiderbhoy v. Yusufally Adamji; AIR 1955 Bom 55). Section 16 has overriding effect on Section 20 as ultimately if relief is granted to the Respondent, he has to work out his remedy against the immoveable properties (Shree Shanthi Homes Private Limited v. Cref Finance Limited; AIR 2002 KAR 252.). Section 20 as its terms indicate is subject to limitation of Section 16, the proviso whereof provides that where the relief sought for can be obtained through the personal obedience of the Defendant, the suit can be instituted either in the Court within whose jurisdiction the property is situate or in the Court where the Defendant resides or carries on business for gain (S.K.Jwala v. Lama Helem Ian; AIR 1978 Cal 247). Section 16 thus, recognizes a well established principle that actions against res or property should be brought in the forum where such res is situate. A Court within whose territorial jurisdiction the property is not situated has no power to deal with and decide the rights or interests in such property. In other words, a Court has no jurisdiction over a dispute in which it cannot give an effective Judgment. Proviso to Section 16, no doubt, states that though the Court cannot, in case of immovable property situate beyond jurisdiction, grant a relief in rem still it can entertain a suit where relief sought can be obtained through the personal obedience of the Defendant. The proviso is based on well known maxim “equity acts in personam”, recognized by Chancery Courts in England. Equity Courts had jurisdiction to entertain certain suits respecting immovable properties situated abroad through personal obedience of the Defendant. The principle on which the maxim was based was that Courts

could grant relief in suits respecting immovable property situate abroad by enforcing their Judgments by process in personam, i.e. by arrest of Defendant or by attachment of his property (Suresh Jain v. Dinesh Kumar; AIR 2008 Delhi 127). (2) Pecuniary jurisdiction.-The Code provides that a court will have jurisdiction only over those suits, the amount or value of the subject matter of which does not exceeds the limit of the jurisdiction. Thus, a Presidency Small Causes Court cannot entertain a suit in which the amount claimed exceeds Rs. 1000. (3) Jurisdiction as to subject-matter.-A court cannot entertain and adjudicate an issue which does not fall within its competency as to competency over the matter. Thus, the Presidency Small Causes Court has no jurisdiction to try suit, for specific performance of a contract, partition of immovable property for closure or redemption of a mortgage, etc. Similarly, in respect of testamentary matters, divorce cases, probate proceedings, the Court of District Judge has exclusive jurisdiction. (4) Original and appellate jurisdiction.-In the exercise of original jurisdiction, a court entertains and decides suits and in its appellate jurisdiction, it entertains and decides appeals. General Clauses Act defines Principal civil court of original jurisdiction as the court of District Judge. They are those courts which are the highest courts or principle courts of civil matters in a district. But certain High Courts also possess the original jurisdiction. These High Courts are as follows: 1. 2. 3. 4.

Calcutta High Court. Madras High Court. Bombay High Court Delhi High Court.

These courts have original Jurisdiction because at the time when there were no district courts these presidency courts used to function. Still, they continue to retain that same character. Delhi High Court is the only exception of same. High courts also have appellate jurisdiction.

INSTITUTION

OF

SUIT

Section 26 and Order IV deals with institution of suits. Where Order I provides for parties to the suit. It also provides for addition, deletion and substitution of parties, joinder, non-joinder and mis-joinder of parties and also objection as to non-joinder and misjoinder of the parties. Order II lays down rules relating to frame of suit, splitting and joinder of claims, joinder of cause-of-action and objection as to misjoinder. Every suit must be instituted by the presentation of a plaint in duplicate or in such manner as may be prescribed by the Code of Civil Procedure, 1908 by the plaintiff himself or by his pleader or by his agent or recognized

person.

Therefore,

generally

a

proceeding

does

not

commence until a plaint is not filed by a person in a court of competent jurisdiction. Parties to the Suit - Order I Order I is about the subject of parties to suits and about the joinder, misjoinder and non-joinder of parties and to some extent, with the joinder of cause-of-action. Joinder of parties: All persons may be joined in one suit as plaintiffs where (a) any right to relief in respect of, or arising out of, the same act, or transaction or series of acts or transactions, is alleged to exist in such persons whether jointly severally or in alternative; and (b) if such persons brought separate suits, any common question of law or fact would arise. But when it appears to the court that any joinder of plaintiffs may embarrass or

delay the trial of the suit, the court may put the plaintiffs to their election or order separate trials or make such orders as may be expedient. Joinder of Defendants - Order I, rule 3 All persons may be joined in one suit as defendants where-(a) any right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions is alleged to exist against such persons, whether jointly, severally or in the alternative; and (b) if separate suits were brought against such persons, any common question of law or fact would arise. In case of Govindaraju v. Alagappa, MANU/TN/0160/1926 : AIR 1926 Mad 911: (1926) 51 MLJ 194, while interpreting the two basic conditions for Order III, the court held that, the word 'and' makes it clear that both the conditions are cumulative and not alternative. So for inducing the provisions of Order III, both the conditions should be made out explicitly. It says that: All persons may be joined in one suit as defendant if the following two conditions are satisfied: (1) the right to relief alleged to exist against them arises out of the same out or transaction; and (2) the case is of such a character that, if separate suit is brought against such persons, any common question of law or fact would arise. Necessary and Proper Party: A "necessary party" is one whose presence is indispensable for proceeding with the suit and for final decision thereof, on the other hand "proper party" is one in whose absence an effective order can be passed, but whose presence is required for complete and final decision of the suit. In case of Hardeva v. Ismail, MANU/RH/0036/1970 : AIR 1970 Raj 167 two tests have been mentioned for determining the question whether a particular party is a necessary party to a proceeding:

(1) there must be a right to some relief against such party in respect of the matter involved in the proceeding in question; and (2) it should not be possible to pass an effective decree in absence of such a party. Order I, rule 8 provides that there are numerous persons having the same interest in one suit, one or more or such persons may with the permission of court sue on behalf of or for the benefit of all persons so interested.

(Bhupendra

Singh

Babera

v.

Municipal

Council,

MANU/CG/0051/2001 : AIR 2002 Chh 7.) Mis-joinder or non-joinder of parties (Order I, rule 9) Order I, rule 9 says: "No suit shall be defeated by reason of the misjoinder or non-joinder of parties, and the court in every suit may deal with the matter in controversy so far as the rights and interests of the parties actually before it. Provided, that nothing in this rule shall apply to non-joinder of a necessary party. So, where a person, who is necessary or proper party to a suit has not been joined as a party to the suit, it is a case of non-joinder. Conversely, if two or more persons are joined as plaintiffs or defendants in one suit in contravention of Order I, rules 1 and 3 respectively and they are neither necessary party nor proper party, it is a case of mis-joinder of the parties. Order I, rule 13, provides that all the objections on the ground of nonjoinder mis-joinder of parties shall be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, unless the ground of objection has subsequently arisen, and any such objection not so taken shall be deemed to have been waived.

Non-joinder (meaning) – Where a person who is a necessary party to a suit has not been joined as a party to the suit, it is a case of non-joinder. A suit should not be dismissed on the ground of non-joinder. But if the decree cannot be

effective without the absent parties, the suit is liable to be dismissed. In case where the joinder of a person as a party is only a matter of convenience, the absent party may be added or the suit may be tried without him. Mis-joinder – Where there are more plaintiffs than one and they are joined together is one suit, but the right to relief in respect of, or arising out of, the same act or transaction or series of acts or transactions alleged to exist in such persons does not arise out of the same act, or transaction and if separate suits were brought, no common question of law or fact would arise, it is case of mis-joinder of plaintiff. Misjoinder of defendants takes place in reverse position. In case of B.P. Rao v. State of Andhra Pradesh, 1985 Supp (1) SCC 432: MANU/SC/0330/1985 : AIR 1986 SC 210: 1985 (51) FLR 501: 1985 Lab IC 1555: (1985) 2 SCALE 256: (1985) Supp 2 SCR 573, it was held by the Supreme Court that, where the affected persons had not been joined as parties to the petition, and some of them only were joined, the interests of the persons who were not joined as parties were identical with those persons who were before the court and were sufficiently and well represented, and therefore, the petition was not liable to be dismissed on that ground alone. Striking Out, Adding or Substituting Parties - Rule 10 Order I, rule 10, provides for the procedure for striking out, adding or substituting the parties to the suit. To bring a case within this sub-rule, the following two conditions must be satisfied-(1) The suit has been filed in the name of a wrong person as plaintiff by a bona fide mistake; and (2) The substitution or addition of the plaintiff is necessary for the determination of the real matter in dispute. Provisions for striking out or

adding parties are governed by sub-rule (2) of rule 10 of Order 1. It lays two grounds for enforcement of the provisions-(1) such person ought to have been joined as a plaintiff or defendant, and is not so joined; or (2) without his presence, the question involved in the suit cannot be completely decided. Such amendments may be allowed by the court at any stage of suit or even at the appellate stage and upon such terms and conditions as it thinks just. No person can be added as a plaintiff without his consent. In Md. Sabir Ansari v. Sada Nanda Mandal, MANU/JH/0619/2009 : AIR 2010 Jhar 43, the present petitioner is having an agreement to sale in his favour for part of the land involve in the Title Suit. Therefore, he is claiming right, title and interest upon the land which is a suit property of the said suit. He was also filed as many as four different Title Suits for specific performance against some of the respondents on the basis of agreement to sale. All these agreements were before the Trial Court in different Title Suits. This aspect of the matter has been lost sight of by the Trial Court while dismissing the application preferred by the present petitioner. Without joining the present petitioner, no effective decree could be passed by the Trial Court after arriving at conclusion of the dispute between the parties. The petitioner ought to have joined as a defendant. Chances of success of the petitioner ought not to have been evaluated at this stage. The Trial Court has to look at the fact that if the applicant can show a fair semblance of the title or interest, he can be impleaded as a party defendant. In Babulal Khandelwal v. Balkishan D. Sanghvi, AIR 2009 SC 67, the Court while appointing an Administrator in an administration suit to administer the Estate of the decease, who dies intestate, may be required to examine transactions involving the properties of the Estate in order to determine the assets of the Estate as on the date of death of the owner

thereof. Consequently, the impleadment of persons who may be involved in some transaction on the other concerning the Estate of the deceased, may become necessary for a decision in an administration suit. Therefore, the High Court had not committed any error in allowing the amendments to the plaint for impleading the appellants as parties to the administration suit filed by the respondent and for scrutinizing the transactions which were alleged to have been concluded by the parents of the respondents during their lifetime. In Laxmi Shankar v. Yash Ram Vasta, MANU/SC/0254/1993 : AIR 1993 SC 1587: 1993 (2) ALT 9 (SC): (1994) 1 GLR 25: (1993) 1 SCALE 26: MANU/SC/0254/1993 : (1993) 3 SCC 49, Supreme Court, after relying upon the judgment of Pal Singh v. Sunder Singh, MANU/SC/0404/1989 : AIR 1989 SC 758: ]T 1989 (1) SC 67: (1989) 1 SCALE 36: MANU/SC/0404/1989 : (1989) 1 SCC 444: (1989) 1 SCR 67: 1989 (1) UJ 316 (SC), wherein it was held that when other coowner did not object to eviction, one co-owner could maintain eviction petition in the absence of other co-owner. Similarly in A. Vishwanath Pillai v. Special Tahsildar for Land Acquisition No. IV, AIR 1991 SC 1966, it was held that co-owner could successfully file suit and recover the property against stranger, held that in the absence of necessary proof it cannot be held that suit is not maintainable on the ground of nonjoinder of necessary party. 'Necessary party' and 'Proper party': Distinction There is essential distinction between 'Necessary Party' and 'Proper Party'. A 'Necessary Party' is one whose presence is indispensable or against whom relief is sought and without whom no effective order can be passed. A 'Proper Party is one in whose absence an effective order can be passed but whose presence is necessary for complete and final decision on question involved in proceedings. General rule is that no suit can be decided without necessary parties to it. However, rule 10 of Order

I of the Code of Civil Procedure, 1908, provides for substitution or addition of parties to suit on either of the following two grounds: (i) He ought to have been joined as plaintiff or defendant and is not so joined; or (ii) without his presence, the question/issue involved in the suit cannot be completely decided.

PLEADINGS ( ORDER 6) Pleadings are statements in writing of each party containing contentions of each party and detail of his case. Pleading is defined in order 6 of the code of civil procedure as plaint or written statement. Plaint ( Order 7) Plaint is the statement of claim in writing and filed by the plaintiff, in which he sets out his cause of action with all necessary particulars. Plaint is the first process in inferior court in the nature of an original writ, whereby a party seeks remedy from court for the redressal of his grievances. Written Statement (Order 8) Written statement is the statement of defence in writing and filed by the defendent, in which he deals with every material fact alleged by the plaintiff in the plaint. Defendant can state any new facts, which he considers to be in his favour, and can raise legal objections to the merits of the case, prescribed by various laws e.g plea of limitation , plea of estoppel, plea of res-judicata etc. Certain features of Written Statement are as follows: 1. Limitation Court has power to condone non filing of written statement within 90 days. Though a defendant is required to file written statement within 30

days after receipt of summons and though the court can extend the time till 90 days, the court is not divested of any power to fix further time for filing the written statement. It is well settled that this cardinal principle of interpretation of law with an enactment has to be read as a whole and then the entire section has to be read and thereafter the Act has to be interpreted section by section. One Rule or one Section in the enactment cannot be a guiding factor for arriving at the intendment of the legislature. The very fact that Rule 10 is re-introduced by Act 22 of 2002 by the Parliament would show that the Parliament never intended the Civil Court to pronounce judgment immediately after the failure on the part of the defendant to file written statement within 90 days. 2. New Facts must be specially pleaded The defendant must raise by his pleading all matters which show the suit not be maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality. The effect of the rule is, for reasons of practice and justice and convenience,to require the party to tell his opponent what he is coming to the Court to prove,If he does not do that, the Court will deal with it in one of two ways. It may say that it is not open to him, that he has not raised it and will not be allowed to rely on it; or it may give leave to amend by raising it and protect the other party. If necessary, by letting the case stands over. The rule is not one that excludes from the consideration of the Court the relevant subject-matter for decision simply on the ground that it is not pleaded. It leaves the party at the mercy of the Court and the Court will deal with him as is just. The effect of the rule is, for reasons of practice and justice and convenience, to require the party to tell his opponent what he is coming to the court to prove. 3. Failure to submit written statement

R.10 speaks of procedure when party fails to present written statement called for by Court. Where any party from whom a written statement is required under rule 1 or rule 9 fails to present the same within the time permitted or fixed by the Court, as the case may be, the Court shall pronounce judgment against him, or make such order relating to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. In Modula India v. Kamakshya Singh 1988 SCR Supl. (3) 333 , explaining the ambit and scheme of Rules 1, 5 and 10 of Order 8, the Apex Court observed: "Rule 1 merely requires that the defendant should present a written statement of his defence within the time permitted by the Court. Under Rule 5(2), where the defendant has not tiled a pleading it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint except against a person under disability but the court may at its discretion require any such fact to be proved. Again under Rule 10 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the Court, the Court ‘shall pronounce judgment against him or make such order in relation to the suit as it thinks fit`. It will be seen that these rules are only permissive in nature. They enable the Court in an appropriate case to pronounce a decree straightway on the basis of the plaint and the averments contained therein. Though the present language of Rule 10 says that the Court ‘shall’ pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightway because a written statement has not been filed.” 4. Set off Set off is reciprocal acquittal of debts. In an action to recover money setoff is a cross-claim for money by the defendant, for which he might

maintain an action against the plaintiff and which has the effect of extinguishing the plaintiff’s claim pro tanto. 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, he can claim a set-off in respect of the said amount. The doctrine of set-off may be defined as "the extinction of debts of which two persons are reciprocally debtors to one another by the credits of which they are reciprocally creditors to one another". Set-off is essentially of two types: (a) Legal set-off and (b) Equitable setoff. The distinction between legal and equitable set-off may now be noted: 1. In a legal set-off the amount claimed must be an ascertained sum of money but in an equitable set—off the claim must-be allowed even with respect to an unascertained sum of money. 2. In a legal set-off the court is bound to entertain and adjudicate upon the plea when raised. In the case of an equitable set-off, however, it is not obligatory on the court to adjudicate upon it and the defendant cannot claim it as a matter of right. The court has the discretion to refuse to take notice of the equitable set-off if the investigation into the equitable claim is likely to result in delay. 3. In a legal set-off it is not necessary that the cross-demands arise out of the same transaction, but an equitable set-off is allowed only when the cross-demands arise out of the same transaction as the plaintiff ’s claim. 4. In a legal set-off the amount claimed to be set off must be legally recoverable and not barred by limitation at the date of the suit, but a claim by way of equitable set-off can be allowed even if it is barred at the date of the suit where there is fiduciary relationship between the plaintiff and the defendant. 5. If the defendant’s claim is barred at the date of the written statement but not barred at the date of the suit, the defendant can get an equitable set-off to the extent of the plaintiff’s claim only but not for the balance found due to him. In a legal set-off the whole claim is admissible and the defendant can even get a decree for the balance.

6. A legal set-off requires a court-fee because it is a claim that might be established by a separate suit in which a court-fee would have to be paid. But there is no such fee required in an equitable set-off which is for an amount that may equitably be deducted from the claim of the plaintiff where a court-fee has been paid on the gross amount. 5. Counter Claim a. (R.6A.) Counter-claim by defendant: (1) A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counterclaim is in the nature of a claim for damages or not: Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Furthermore, Such counter-claim shall have the same effect as a crosssuit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. The plaintiff shall be at liberty to file a written statement in answer to the counterclaim of the defendant within such period as may be fixed by the Court. The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. b. (R.6B.) Counter-claim to be stated: Where any defendant seeks to rely upon any ground as supporting a right of counter-claim, he shall, in his written statement, state specifically that he does so by way of counter-claim. c. (R.6C.) Exclusion of counter-claim: Where a defendant sets up a counter-claim and the plaintiff contends that the claim thereby raised ought not to be disposed of by way of counter-claim but in an independent suit, the plaintiff may, at any time before issues are settled in relation to the counter-claim, apply to the

Court for an order that such counter-claim may be excluded, and the Court may, on the hearing of such application make such order as it thinks fit. d. (R.6D.) Effect of discontinuance of suit: If in any case in which the defendant sets up a counter-claim, the suit of the plaintiff is stayed, discontinued or dismissed, the counter-claim may nevertheless be proceeded with. e. (R.6E.) Default of plaintiff to reply to counter-claim: If the plaintiff makes default in putting in reply to the counter-claim made by the defendant, the Court may pronounce judgment against the plaintiff in relation to the counter-claim made against him or make such order in relation to the counter-claim as it thinks fit. f. (R.6F.) Relief to defendant where counter-claim succeeds: Where in any suit a set-off or counter-claim is established as defence against the plaintiff's claim and any balance is found due to the plaintiff or the defendant, as the case may be, the Court may give judgment to the party entitled to such balance. g. (R.6G.) Rules relating to written statement to apply: The rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim. Rejoinder Rejoinder means answer of the plaintiff, which he gives keeping in view new facts alleged by the defendant in written statement. Object of Pleadings The object of pleading is to bring the parties to an issue and purpose of the rules relating to pleading is to prevent the issue being enlarged. Further that the parties themselves know what the matters in dispute are and what facts they have to prove at the trial. What should a pleading contains

Every pleading shall contain and contain only, a statement in a concise form of the material facts, n which the party pleading (plaintiff or defendant) relies for his claim or defence, as the case may be. It shall not contain, the evidence by which they are to be proved, and it shall, when necessary, be divided into paragraphs, numbered consecutively. Dates, sums and numbers shall be expressed in figures. General Rules of Pleading In civil procedure code order 6 deals with pleadings in general, order 7 deals with plaint, and order 8 deals with the written statement. The following is the summary of the rules comprised in orders 6, 7, and 8 of civil procedure code: 1. In pleading state your whole case, in other words set forth in pleading all material facts on which you rely for your claim or defence, as the case may be. 2. In pleading state facts and not the law, if any matter of law is set out inj your opponent's pleading, do not plead to it. 3. In pleading state only the relevant facts on which you rely, and not the evidence by which those facts are to be proved. 4. In pleading state material facts only and omit immaterial and unnecessary facts, and do not plead to any matter which is not against you. 5. In pleading, state the facts of the case concisely, but with precision. 6. It is not necessary to set out the whole or any part of the document, unless the precise words thereof necessary, it is sufficient to state the effects of document as briefly as possible. 7. It is not necessary to allege any matter of fact which the law presumes in your favour or as to which the burden of proof lies upto your opponent party. 8. The party should not plead conclusion of law in pleading. 9. Legal pleas such as estoppel, limitation and resjudicata or res subjudice etc, may be pleaded in written statement.

10. In cases where the party pleading relies on any mis-representation, fraud, breach of trust, wilful default, or undue influence, particulars shall be stated in the pleading. Amendment of Pleadings (Order 6 Rule 17) By Amendment Act 46 of 1999, Order VI Rule 17 was deleted. It has again been restored by Amendment Act 22 of 2002 but with an added proviso to prevent application for amendment being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

The proviso, to some extent, curtails

absolute discretion to allow amendment at any stage. Now, if application is filed after commencement of trial, it must be shown that in spite of due diligence, such amendment could not have been sought earlier. The purpose and object of Order VI Rule 17 of the Code is to allow either party to alter or amend his pleadings in such manner and on such terms as may be just. Amendment cannot be claimed as a matter of right and under all circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical approach. Liberal approach should be the general rule particularly, in cases where the other side can be compensated with costs. Normally, amendments are allowed in the pleadings to avoid multiplicity of litigations. Furthermore, It is well settled that under Order 6 Rule 17 of the Code of Civil Procedure, wide powers and unfettered discretion have been conferred on the court to allow amendment of the pleadings to a party in such a manner and on such terms as it appears to the court just and proper. Even if, such an application for amendment of the plaint was filed belatedly, such belated amendment cannot be refused if it is found that it is necessary for deciding the real controversy between the parties, it can be allowed on payment of costs. Therefore, in our view, mere delay and laches in making the application for amendment cannot be a ground to refuse the amendment. However, the defendants by means of amendment

cannot substitute a new case and completely change the case made in the written statement. If defendant seeks to substitute a new case by way of amendment. Amendment is not to decide the real question of controversy between the parties but only technical in nature.

If effect of amendment would be

take away a legal right acquired by bar of limitation. Amendment introduces a wholly inconsistent or new case and application is made at a very later stage in the suit. Application is not made in good faith. The above principles make it clear that Courts have ample power to allow the application for amendment of the plaint. However, it must be satisfied that the same is required in the interest of justice and for the purpose of determination of real question in controversy between the parties.

ISSUES (ORDER 14) Issues are points of contest between the parties in a suit. In other words issues are those points raised from the pleadings which se a way for the court for entertaining a case and it brings the court at the right conclusion of justice. The determination of issues has great importance in the trial of a case, because it is issues and not the pleadings, which indicates the appropriate evidence to be given. Pleadings constitutes allegations to one-side or the other, and after determination which of the allegations are material for the purpose of the trial and which of them are admitted or denied, issues are framed and on the basis of these issues the parties stand the test of the trial. The object of settlement of issues is to determine the material points in controversy

between

the

parties.

Issues

arise

when

a

material

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

According to order 14 rule 1, issues arise when a material proposition of fact or law is affirmed by one party and denied by the other. Material propositions are those propositions of law or fact which a plaintiff must allege in order to show a right to sue or a defendant must allege in order to constitute his defence. Each material proposition affirmed by one party and denied by the other shall form the subject of a distinct issue. At the first hearing of the suit the court shall, after reading the plaint, and the written statements, if any, and after such examination of the parties as may appear necessary, ascertain upon what material propositions of fact or of law the parties are at variance, and shall thereupon proceed to frame and record the issues on which the right decision of the case appears to depend. If the defendant at the first hearing of the suit makes no defence, then according to order 14 rule 1, nothing in this rule requires the court to frame and record issues. Omission to Frame Issues If an issue is not framed in the suit, while an allegation was made in the plaint in-respect of certain facts and challenged in written statement, the court can allow the parties to lead the evidence on such point, and would give its decision without framing that issue. Kinds of Issues: 1. Issues of Fact Issue of fact means any issue, which has not been determined, by a rule of law, but is to be answered, in accordance with the evidence laid before the court. 2. Issues of Law

Issue of law means that issue, which is to be answered in accordance with the law, and not in accordance with the facts or evidences that is laid before the court. Materials from which Issues may be framed The provision regarding the materials from which issues are framed is found in order 14 rule 3, which provides that " the court may frame issues from any of the following materials :1. The court may frame issues from the allegations made on oath by bthe parties, or by any persons present on their behalf or made by the pleaders of such parties. 2. The court may frame issues from the allegations made in the pleadings or in answers to the interrogatories delivered in the suit. 3. The court may frame issues from the contents of the documents produced by either part.” According to order 14 rule 2, " where issues both of law and fact arise in the same suit, and the court is of the opinion, that the case or any part thereof may be disposed of on issues of law only, it shall try those issues first, and for that purpose may if it thinks fit, postpone the settlement of the issues of fact untill after the issue of law have been determined". Power of Court to amend and strike out Issues: The power of the court to amend and striking-out of issues is mentioned in order 14 rule 5, which provides that, " The court may at any time before passing a decree amend the issues or frame additional issues as may be necessary for determining the matters in controversy between the parties shall be so made or framed. 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. PARTIES TO BE EXAMINED:

(ORDER X)

As has been observed by the Supreme Court in M/s Kapil Corepacks Pvt. Ltd. v. Harbans Lal, 1988 SCR Supl. (3) 333 has examined the scope and ambit of the Courts powers under Order 10 of the Code of Civil Procedure, 1908. The Supreme Court was of the opinion that the scope of the power of the Court is limited to identifying 'matters in controversy' and not to prove / disprove facts. Order X lays down the practices involved in the same. The steps are: 1. Ascertainment of whether allegations in pleadings: At the first hearing of the suit, the Court shall ascertain from each party or his pleader whether he/she admits or denies such allegations of fact as has been made in the plaint or written statement of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall make records of such admissions and denials. 2. Oral examination of party: (i) At the first hearing of the suit, the Court(a) Shall, with a view to elucidating matters in controversy in the suit examine orally such of the parties to the suit appearing in person or present in Court, as it deems fit. (b) May orally examine any person, able to answer any material question relating to the suit, by whom any party appearing in person or present in Court or his pleader is accompanied. (ii) At any subsequent hearing, the Court may orally examine any party appearing in person or present in Court, or any person, able to answer any material question relating to the suit, by whom such party or his pleader is accompanied. (iii) The Court may, if it thinks fit, put in the course of an examination under this rule questions suggested by either party. 3. Subject of examination to be written:

The substance of the examination shall be reduced to writing by the Judge, and shall form part of the record. Moreover, Order 10 Rule 1 empowers the court to ascertain from each of the parties (or his pleader), at the first hearing whether he admits or denies such of those allegations of fact made in the pleadings of the other party, which were not expressly or by necessary implication admitted or denied by him. In other words, if the defendant in his written statement has failed to expressly or by necessary implication admit or deny any of the plaint allegations, the court can ascertain the same from the defendant, whether he admits or denies the referred allegations. In a similar manner, if the defendant has levied some allegations against the plaintiff in his written statement, and no reply is filed by the plaintiff, the court can ascertain whether plaintiff admits or denies those allegations. In such a case, resort has to be taken to Rule 1 of Order 10. Examination under Order 10 Rule 1 of the Code will not be necessary where the pleadings of each party have been fully and clearly traversed by the other party. On the other hand, the examination under Rule 2 of Order 10 of the Code, need not be restricted to allegations in the pleadings of the other party, but can relate to elucidating any matter in controversy in the suit. Further, under Rule 1 of Order 10, the court can examine only the parties and their advocates, that too at the `first hearing'. Furthermore, Rule 2 enables the court to examine not only any party, but also any person accompanying either party or his pleader, to obtain answer to any material question relating to the suit, either at the first hearing or subsequent hearings. The sole object of oral examination under Rule 2 of Order 10 is to ascertain the matters in controversy in suit, and not to record evidence or to secure admissions. The statement made by a party in an examination under Rule 2 is not under oath, and is not intended to be a substitute for a regular examination under oath under Order 18 of the Code. In other words, while the purpose of an examination under Rule 1 is to clarify the stand of a party in regard to the allegations made against him in the pleadings of the other party, the purpose of the oral examination

under Rule 2 is mainly to elucidate the allegations even in his own pleadings, or any documents filed with the pleadings. The power under Order 10 Rule 2 of the Code, cannot be converted into a process of selective cross-examination by the court, before the party has an opportunity to put forth his case at the trial. The above position of law is well settled.(Manmohan Das v. Mt. Ramdei & Anr. AIR 1931 PC 175.) No doubt under Order 10, Rule 2, any party present in Court may be examined orally by the Court at any stage of the hearing, and the Court may if it thinks fit put in the course of such examination questions suggested by either party. But this power is intended to be used by the Judge only when he finds it necessary to obtain from such party information on any material questions relating to the suit and ought not to be employed so as to supersede the ordinary procedure at trial as prescribed in Order 18. At the façade, it must be noted that it (Order 10 Rule 2) does not provide for an examination on oath. This provision was intended to be used to elucidate the matters in controversy in suit before the trial began. This is not a provision intended to be used to supersede the usual procedure to be followed at the trial. (Arunagiri Goundan v. Vasantharoya Koundan & Ors AIR 1949 Madras 707). The object of Order 10 Rule 2 is not intended to elicit admissions neither does it provide for or contemplate admissions. The admissions are usually contemplated: (i)

in the pleadings (express or constructive under Order 8 Rule 5 of

(ii)

the Code); during examination of a party by the court under Order 10 Rule 1

(iii) (iv)

of the Code; in answers to interrogatories under Order 11 Rule 8 of the Code; in response to notice to admit facts under Order 12 Rule 4 of the

(v)

Code; in any evidence or in an affidavit, on oath; and

(vi)

when any party voluntarily comes forward during the pendency of a suit or proceedings to make an admission.

The power of court to call upon a party to admit any document and record whether the party admits or refuses or neglects to admit such document is traceable to Order 12 Rule 3A rather than Order 10 Rule 2 of the Code. However, nothing comes in the way of the court combining the power under Order 12 Rule 3A with its power under Order 10 Rule 2 of the Code and calling upon a party to admit any document when a Party is being examined under Order 10 Rule 2. MECHANISM OF DISCOVERY:

(ORDER

XI)

Discovery is the obtaining by one party to an action or suit of information on oath from another party. It is of two kinds—(1) discovery by interrogatories of facts relevant to the issues in the action and within the knowledge of the party interrogated; and (2) discovery of documents relating to the matters in the action and in the possession of the third party. As already stated above, it empowers a party to ascertain the nature of his opponent’s case or the material facts constituting his case. It is based on the principle that every party to a suit is entitled to know the nature of his opponent’s case so that he may know what case he has to meet at the hearing. Discovery by Interrogatories A defendant may administer interrogatories to the plaintiff and a plaintiff may administer interrogatories o the defendant, if the nature of the plaintiff’s case as disclosed in his plaint in the former case or the nature of the case of the defendant as disclosed in his written statement in the latter case does not sufficiently disclose the nature of the party’s case.

Before interrogatories are allowed to the plaintiff by the defendant or to the defendant by the plaintiff, it is necessary to obtain leave of the court to do so. The object of interrogatories is (1) To ascertain the nature of your opponent’s case or the material facts constituting his case; (2) To support your own case, either (a) Directly, by obtaining admissions, or (b) Indirectly, by impeding or destroying your adversary’s case. This results in narrowing the points in issue and also eliminates proving facts which are, admitted. Interrogatories will not be allowed in the following cases: 1. A party is not entitled to administer interrogatories for obtaining discovery of facts which constitute exclusively the evidence of his adversary’s case of title. 2. A party is not entitled to interrogate as to any confidential communications between his opponent and his legal advisers. 3. A party is not entitled to administer interrogatories which would involve disclosures injurious to public interests. 4. An interrogatory although relevant to and bona fide for the purposes of a suit may be premature, in which case it will not be allowed. 5. Interrogatories must not be fishing in nature, that is to say, they must refer to some definite and existing state of circumstances, and must not be put merely in the hope of discovering something which may help the party interrogating to make out some case.Any party to a suit by leave of the court may deliver written interrogatories for examination of the opposite parties or anyone or more of such parties, stating at the foot

thereof which of such interrogatories each of such persons is required to answer. No party shall deliver more than one set of interrogatories to the same party without an order for that purpose and interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant. (Order XI, Rule 1). The sole objective of this rule is to enable a party to require information from his opponent to the purpose of maintaining his own case or for destroying the case of the adversary. The main object of interrogatories is to save expenses and shorten the litigation by enabling a party to obtain from his opponent information as to facts material regarding the question in dispute between them or to obtain admission of any facts which he has to prove on any issue which is raised between them. As a general practice, interrogatories are to be allowed whenever the answer to them will serve either to maintain the case of the party administering them or to destroy the case of the adversary. The power to serve interrogatories as it appears is not meant to be confined within narrow technical limits. It should be used liberally whenever it can shorten litigation and serve the interest of justice. At the same time, such can be exercised within certain limits. The power to order interrogatories to be served and answer should be used with considerable care and caution, so that it is not abused by any party.

Leave for Interrogation:

On an application for leave to deliver interrogatories, the court shall grant leave as to such interrogatories only which are considered necessary either for disposing fairly of the suit or for saving costs, and in

doing so 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. (Order XI, Rule 2). Discovery of documents: Any party may, without filing any affidavit, apply to the court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. The court may either refuse or adjourn the application if satisfied that such discovery is not necessary or not necessary at that stage of the suit, or make such order as may be thought fit. However, such discovery shall not be ordered when and so far as the court shall be of opinion that it is not necessary either for fairly disposing of the suit or for saving costs. (Order XI, Rule 12).The suit being for enforcement of the security, it could be filed only at the place where the property is situated. For example, in case the defendants desired to raise the question of jurisdiction as the mortgage was fictitious, they could do so. But for that it was not necessary to summon the disciplinary proceedings pending against the bank official even if one of the charges is that the security furnished by defendant No. 5 was fictitious. It could be established by leading evidence and cross-examining the witnesses. In our opinion, the defendants have by this method attempted to delay the proceedings. Parties directed by court to make discovery of documents should file an affidavit specifying which of the documents he objects to produce, or state on oath if he has no such documents. [Order XI, Rule 13]. MECHANISM OF INSPECTION:

(ORDER

XI)

Party to a suit may give notice to any other party, in whose pleadings or affidavits reference is made to any document, or who has entered any document in any list annexed to his pleadings, to produce such document for the inspection of the party giving such notice, or of his pleader and to permit him or them to take copies thereof. Parties not complying with such notice shall not be allowed later, to put any such document in evidence on his behalf in such suit, unless he/she satisfies the court that such document relates only to his own title, he being a defendant to the suit, or that he had some other sufficient cause or excuse. (Order XI, Rule 15).The other party at whom such notice is directed shall, within ten days from the receipt of such notice, deliver to the party giving the same a notice stating a time within three days from the delivery thereof at which the documents, or such of them as he does not object to produce, may be inspected at the office of his pleader, or in the case of bankers’ books, account books or books in constant use for any trade or business, at their usual place of custody, and stating which, if any, of the documents he objects to produce and on what ground. (Order XI, Rule 17). Order for carrying out inspection: In instances, where the party receiving notice omits to give such notice of a time for inspection or objects to give inspection, or offers inspection elsewhere that at the office of his pleader, the court may, on the application of the party desiring it, make an order for inspection at such place and in such manner as it thinks fit, but in such case, no order will be made where the court thinks that it is necessary either for disposing fairly of the suit or for saving costs. [Order XI, Rule 18(1)]. Documents not referred to in pleading or affidavit: An application to inspect documents, other than those referred to in the pleadings or affidavits shall be founded upon an affidavit showing of what documents inspection is to be sought, that the party applying is entitled

to inspect them and that they are in the possession or power of the other party. [Order XI, Rule 18(2)].

Verified copies: In instances of inspection of any business books the court may instead of ordering inspection of the original books order a copy of any entries therein to be furnished and verified by the affidavit of some person who has examined the copy with the original entries stating whether or not there are in the original book any and what erasures, interrelations, or alterations. The court may notwithstanding that such copy has been supplied, order inspection of the book from which the copy was made. Where on an application for an order for inspection privilege is claimed for any document, the court may inspect the document for the purpose of deciding as to the validity of the claim of privilege, unless the document relates to matters of State. [Order XI, Rule 19(1) and (2)]. Premature Discovery: A premature discovery is one when the right to the discovery of any kind of inspection sought depends upon the determination of any issue or question in dispute in the suit or for any other reason it is desirable that any issue or question in dispute in the suit should be determined before deciding upon the right to the discovery or inspection. In such instances, the court may order that such issue or question in dispute in the suit be determined first and reserve the question as to the discovery or inspection.(Order XI, Rule 20). It is discretionary to postpone discovery and inspection until some issue is determined but there is no contravention in ordering discovery or inspection before any issue is determined. Consequences In Case Of Non-compliance:

In

case,

any

party

fails

to

comply

with

any

order

to

answer

interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the court for an order to that effect, and an order may be made on such application accordingly after notice to the parties and after giving them a reasonable opportunity of being heard. Where an order is made dismissing the suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action. (Order XI, Rule 21). Order XI, Rule 21 is not applicable to cases of non-compliance with the order for production of documents under Order XI, Rule 14. An order passed by the Court for the production of documents is an order under Order XI, Rule 14. In such cases, the suit cannot be dismissed for noncompliance of the directions of Order XI, Rule 14, under Order XI, Rule 21(2) and the Court could draw an adverse inference because of nonproduction of documents by the plaintiff. Application for striking out of defence not allowed on ground of failure to file affidavit of documents by defendant: In cases where, repeated opportunities were given to defendant to file affidavit of documents. However, he subsequently said affidavit was filed within time fixed by High Court. As such, it could not be said that no affidavit of documents was filed in terms of order of Court.Thus, default clause had never taken effect and hence, defence could not be striked out. But for the interest of justice, defendant was given time to file proper affidavit as he was not found guilty of obstinacy and contumacy.

ADMISSIONS: (ORDER XII)

In

Dinesh

Kumar

Singhania

vs.

Calcutta

Stock

Exchange

Association Limited 2005 (2) CHN 601, the Court was of the opinion that from primary use of the provisions under Order XII Rule 6 of the Code, it appears that the scope of the rule is that in a case where admission of fact has been made by either of the parties in pleadings whether orally or in writing, or otherwise, the judgment to the extent of admission can be given by the Court on its own motion or on the application of any party. The following are different instances: Parameters of Judgment On Admission: In Smt. Sudesh Madhok v. Paam Antibiotics Ltd. and Anr AIR 2011 SC 298 the Court said that “where a claim is admitted, the court has jurisdiction to enter a judgment for the plaintiff and to pass a decree on admitted claim. The object of the Rule is to enable the party to obtain a speedy judgment at least to the extent of the relief to which according to the admission of the defendant, the plaintiff is entitled." Again, in Raj Kumar Chawla v. Lucas Indian Services, AIR 2006 Delhi 266 the Division Bench states that there cannot be an inferential admission – it has to be unambiguous. In other terms, the Court should not deduce an admission, as the result of an interpretive exercise. Form of Admission: On the face of it, Order XII, Rule 6 of the Code of Civil Procedure is evidently clear that it is open to the Court to base a judgment on admission on the pleadings or otherwise. The word "otherwise", in the said provision clearly indicates that it is open to the Court to base the judgment on statements made by a party not only in the pleadings but also de hors the, pleadings. Such admissions may be made either

expressly

or

constructively.

Relief under Order XII Rule 6 The provision 'under Order XII Rule 6 of the Code is enabling, discretionary and permissive and is neither mandatory nor it is peremptory since the word "may" has been used. It is not incumbent on the Courts to pass judgment on admissions and in order to succeed under Order XII Rule 6 CPC; the admission of the other party has to be clear and unequivocal. Furthermore, there is no time limit specified for Court to grant relief on its own or on application at any stage of the suit. The use of the expression "any stage" in the said rule itself shows that the legislature's intent is to give it widest possible meaning. Thus merely because issues are framed cannot by itself deter the court to pass the judgment on admission under O. XII R. 6, C.P.C. Bare perusal of Order XII Rule 6 shows, that it confers very wide powers on the court, to pronounce judgment on admission at any stage of the proceedings. The admission may have been made either in pleadings, or otherwise. The admission may have been made orally or in writing. The court can act on such admission, either on an application of any party or on its own motion without determining the other questions. This provision is discretionary, which has to be exercised on well established principles. Admission must be clear and unequivocal; it must be taken as a whole and it is not permissible to rely on a part of the admission ignoring the other part; even a constructive admission firmly made can be

made

the

basis.

Can Judgment Be Given After Admission/Denial? In Jal Board v Surendra P Malik, 104 (2003) DLT 151, the Court held that it is essential that the admissions must be plain, unambiguous

and unequivocal and that when a defence is set up and it requires evidence

for

determination

of

the

issues.

In Balraj Taneja and another v Sunil Madan, AIR 1998 SC 111, the Supreme Court referred to Order VIII Rule 5 which deals with denials and observed that sub-rule (1) of Rule 5 provides that any fact stated in the plaint, if not denied specifically or by necessary implication or stated to be not admitted in the pleading of the defendant, shall be treated as admitted. It further observed that under Rule 3 of Order VIII it is provided that the denial by the defendant in his written statement must be specific with reference to each allegation of fact made in the plaint. A general denial or an evasive denial is not treated as sufficient denial and, therefore, the denial, if it is not definite, positive and unambiguous; the allegations of facts made in the plaint shall be treated as admitted under this Rule. The court is empowered under Order XII Rule 6 to pass judgment and decree in respect of admitted claims pending adjudication of the disputed claims in the suit.

SUMMONING AND ATTENDANCE OF WITNESSES DETAINED:

(ORDER

XVI-A)

Where it appears to a court that the evidence of a person confined or detained in prison within the State is material in a suit, the court may make an order requiring the officer in charge of the prison to produce that person before the court to give evidence: provided that, if the distance from, the prison to the court-house is more than 25 kilometres, no such order shall be made unless the court is satisfied that the examination of such person on commission will not be adequate. (Order XVI-A, Rule 2). Before making an order under Rule 2, the court shall require the party at whose instance or for whose benefit the order is to be issued to pay into court such sum of moneys as be sufficient to defray the expenses of the execution of the order, including the travelling and other expenses of the escort provided for the witness. (Order XVI-A, Rule 3). The State Government may, at any time, by general or special order, direct that any person or class of persons shall not be removed from the prison in which he or they may be confined or detained, and thereupon, so long as the order remains in force, no order made under Rule 2 shall have effect in respect of such person or class of persons. [Order XVI, Rule 4(1)]. Before making an order under sub-rule (1), the State Government shall have regard to (a) the nature of the offence for which the person or class of persons have been ordered to be confined or detained in prison, (b) the likelihood of the disturbance of public order if the person or class of persons is allowed to be removed from the prison; and (c) the public interest generally. [Order XVI-A, Rule 4(2)]. ADJOURNMENT:

(ORDER

XVII)

Adjournment refers to an instance where a particular case, is posted to be heard on a further date. There are various aspects to it. Some are: Procedure if parties fail to appear on day fixed: Where on the adjourned date the parties or any of them fail to appear, the court may proceed to dispose of the suit in one of the modes mentioned in Order IX dealing with consequence of non-appearance of parties; discussed earlier or make such order as it thinks fit. (Order XVII, Rule 2). The Explanation added to Rule 2 provides that where the evidence or a substantial portion of the evidence of any party has already been recorded and such party fails to appear on any day to which the hearing of the suit is adjourned, the court may, in its discretion, proceed with the case as if such party were present. Where the defendant’s husband who was acting as her pairokar and her counsel, duly authorised to appear, act and plead on her behalf were both present in court on the date of hearing and the counsel reported “no instructions”, which means that he refused to appear for the defendant-appellant, the defendant could not be said to be present in court. The decree was technically passed ex parte. Court may proceed notwithstanding either party fails to produce evidence, etc: Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit for which time has been allowed, the court may notwithstanding such default,—(a) if the parties are present, proceed to decide the suit forthwith; or (b) if the parties are, or any of them is absent, proceed under Rule 2 above. (Order XVII, Rule 3). To apply the procedure under Order XVII, Rule 3, C.P.C. there should be presence of both the elements, viz., (1) the adjournment must have been at the instance of a party, and (2) there must be materials on the record for the court to proceed to decide the suit.

Right of party to prove its case by leading evidence: Such right could not be taken away by Court save otherwise in case of failure to produce evidence and such failure was required to be recorded in the order leading to closure of evidence. It was only then that the Court could proceed to decide suit after doing away with evidence of party. Held, that Court by no stretch of imagination could decide suit straightway discarding evidence of party though Courts enjoy such power under C.P.C. Rule 6, Order XII where claim was admitted. Rule 2 of Order XVII does not apply where no day has been fixed for the hearing, but applies where the hearing of a suit has been adjourned and on the adjourned date the parties or any of them fail to appear. Rule 3 of Order XVTI applies only to cases where the parties are present and have not satisfied the court as to the existence of any adequate reason for their not having done what they were directed to do. Rules 2 and 3 are mutually exclusive and where the pleader pleads no instructions and the party is not prepared to go on rule 2 and not rule 3 applies. Rule 3 means that the court has discretion to decide the case on the adjourned date or not, but if it does decide the suit, it will be a decision on the merits and appearance on behalf of the defendant would be assumed, whether he was in fact present or not and the decree cannot be regarded as ex parte. Only an appeal and no revision lies against an order under Order XVII, Rule 3. In cases where on an adjourned date, a case is decided in the absence of the defendant and the order is described as an ex parte one, it cannot be said that merely because the court gave some reasons for its decision, it becomes a decision on merits so as to take the case out of the provisions of Order IX. No Instructions to counsel—Proper Procedure:

Where on the refusal of an application for adjournment the plaintiff’s pleader reports “No instructions” and the plaintiff though present during the defendant’s argument asks for time to engage another pleader which is refused, the trial judge should, in such circumstances, pass an order dismissing the suit for default under Rule 2 and not purport to pass a decree based on a finding on the merits against the plaintiff under Rule 3. Different remedies against Order XVII, Rules 2 and 3: The remedies in the case of the orders under Rule 2 and Rule 3, are different. If a suit is dismissed under Order XVII, Rule 2, read with Order IX, Rule 8 (i.e., where the defendant appears and the plaintiff does not appear), the remedy is by application under Order IX, Rule 9, i.e., the plaintiff is precluded from bringing a fresh suit in respect of the same cause of action but he may apply for restoration of the suit. But if suit is dismissed under Order XVII, Rule 3, the remedy is by way of an appeal. In case of default under Rules 2 and 3 of Order XVII: Where there is default under both the rules, i.e., the party having got an adjournment not only fails to perform the act for which adjournment was given but also fails to appear on the adjourned date, Rule 2 should be applied; but if there are materials to justify a decision on ‘merits’, Rule 3 should be resorted to. If the suit came to be disposed of on account of the non-appearance of the plaintiff on a hearing day but it was not at the instance of the plaintiff that the suit was adjourned for the day it came to be disposed of, the court can proceed only under Order XVII, Rule 2 in one of the modes prescribed by Order IX, presumably in the manner prescribed by Order IX, Rule 8. An application under Order IX, Rule 9 by the plaintiff would be maintainable in such a case.

The construction of Order XVII, Rule 2 should be such that where it is permissible to treat an order as falling within the ambit of Rule 2, it must be taken as being outside the ambit of Rule 3 for the obvious reason that Rule 3 is a more stringent provision requiring a strict construction. (Rama Rao v. Shantibai, AIR 1977 MP 222) Application for setting aside dismissal of suit: An application under Order IX, C.P.C. will lie for setting aside the dismissal of a suit in the following circumstances and Order XVII, Rule 2 would alone be attracted: (a) where the plaintiff had not been asked to do something and he did not appear when the case was called on for hearing, or (b) where the plaintiff was asked to do something which he did not do, nor did he appear when the case was called on for hearing. Application for setting aside ex parte order Under Order 9 Rule 13: In the following situations, the defendant can apply under Order IX, Rule 13, C.P.C. for setting aside an ex parte decree and Order XVII, Rule 2 would alone be attracted : (a) when the defendant had not been asked to do something and he did not appear and the court decided the suit on the basis of the existing material, without or after taking any further evidence on record; (b) when the defendant had been asked to do something which he did not do, nor appeared when the case was called on for hearing and the court decided the suit on the existing material without taking any further evidence for the plaintiff; (c) when he had been asked to do something which he did not appear when the case was called on for hearing and, therefore, on the same day, the Court took on record ex parte evidence produced by the plaintiff; and (d) when he had been asked to do something which he did not do, nor appeared when the case was called on for hearing and the trial court adjourned the hearing for recording plaintiff’s evidence ex parte and on the next date after

recording plaintiff’s ex parte evidence, passed an ex parte decree against him. In case of non-appearance on adjourned date of hearing and remedy: An instance in which the defendant obtains an adjournment on the date of final hearing of the suit and fails to appear on the adjourned date is covered by Rule 2 of Order XVII, and an application under Order IX, Rule 13 will lie even if the court proposes to act under Rule 3. Rule 3 applies when a party is present, or is deemed to be present, and has defaulted in doing the acts mentioned in Rule 3. Where the Court on non-appearance of the defendant even if expressly proceeded to decide the case under Order XVII, Rule 3 instead of deciding it ex parte under Order XVII, Rule 2, the defendant was not precluded from moving an application under Order IX, Rule 13, for setting aside such decree. When the defendant obtains adjournment of the suit but fails to appear on the adjourned date, the matter is governed by Order XVII, Rule 2 and not by Order XVII, Rule 3. Consequently, if the court wants to dispose of the suit, it should dispose it of in accordance with the provisions of Order IX that is ex parte, but should not decide it on merits. Appeal against ex parte decree—when on merits and when grounds of non-appearance-circumstances: In appeals against ex parte decree the appellant can only be heard on the merits of the case. The appellate court cannot go into the question as to why the appellant had not appeared on the date of final hearing before the trial court. This is the scope of an application under Order IX, Rule 13, C.P.C. When the defendant is absent no proceedings under Rule 3 of Order XVII can be taken. When any of the parties fails to appear on an adjourned hearing of the suit the court can proceed either under Order

IX or to adjourn the suit but where substantial portion of evidence of a party has already been recorded and such party fails to appear on the adjourned date then only the court can proceed to decide the suit on merits even under Rule 2 of Order XVII. Where in a case neither any evidence had been recorded either on behalf of the plaintiff or on behalf of the defendant by the date on which ex parte decree was passed nor the defendant was physically present in court on the date on which the decree was passed, application of Order XVII, Rule 3 was clearly excluded and the only course open to the court was to proceed under Order XVII, Rule 2. Therefore, the court would be deemed to have acted illegally when it proceeded to decide the suit on merits under Rule 3 after rejecting the defendant’s application for adjournment. The court, hearing an appeal against an ex parte decree passed under Order XVII, Rule 3, can go into the grounds of nonappearance of the defaulting party unless it be barred from doing so either under the doctrine of res judicata or under other positive rule of law. The court can also consider whether the defendant was prevented by any sufficient cause in

Provisions regarding examination of party not mandatory A close reading of the provision of Rule 3-A indicates that the insistence of examination of a party as a first witness is not an inviolable rule and the rule itself provides an exception. May be that the Court has to be assign reasons for giving such permission. In the instant case there is a breach of Rule 3-A, but at the time of examination of the plaintiff as PW 2, the defendant has not objected and the evidence has been recorded. Thereby in the context of facts, it should be construed that there has been an implied permission granted by the Court. The provisions of Order XVII, Rule 3-A are not mandatory and does not necessarily visit

with the consequences rendering such evidence a nullity. [Order XVII, Rule 3-A] HEARING OF SUIT AND EXAMINATION OF PARTY:

(ORDER

XVIII)

The provisions of sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects. The rules relating to service of summons issued to the defendant and proof of service also apply to summonses to witnesses to give evidence or to List of witnesses and summons to witnesses: (1) On or before such date as the Court may appoint, and not later than fifteen days after the date on which the issues are settled, the parties shall present in Court a list of witnesses whom they propose to call either to give evidence or to produce documents and obtain summonses to such persons for their attendance in Court. (2) A party desirous of obtaining any summons for the attendance of any person shall file in Court an application stating therein the purpose for which the witness is proposed to be summoned. (3) The Court may, for reasons to be recorded, permit a party to call, whether by summoning through Court or otherwise, any witness, other than those whose names appear in the list referred to in sub-rule (1), if such party shows sufficient cause for the omission to mention the name of such witness in the said list. (4) Subject to the provisions of sub-rule (2), summonses referred to in this rule may be obtained by the parties on an application to the ‘[Court in this behalf within five days of presenting the list of witnesses under sub-rule (1)]. (Order XVI, Rule 1).

1-A. Production of witnesses without summons

Subject to the provisions of sub-rule (3) of Rule 1, any party to the suit may, without applying for summons under rule 1, bring any witness to give evidence or to produce documents.] (Order XVI, Rule 1-A). (1) Expenses of witness to be paid into Court on applying for summons: The party applying for a summons shall, before the summons is granted and within a period to be fixed [which shall not be later than seven days from the date of making application under sub-rule (4) of Rule 1,] pay into Court such sum of money as appears to the Court to be sufficient to defray the travelling and other expenses of the person summoned in passing to and from the Court in which he is required to attend, and for one day’s attendance. (2) Experts: In determining the amount payable under this rule, the Court may, in the case of any person summoned to give evidence as an expert, allow reasonable remuneration for the time occupied both in giving evidence and in performing any work of an expert character necessary for the case. (3) Scale of expenses: Where the Court is subordinate to a High Court, regard shall be had, in fixing the scale of such expenses, to any rules made in that behalf. (4) Expenses to be directly paid to witnesses: Where the summons is served directly by the party on a witness, the expenses referred to in sub-rule (1) shall be paid to the witness by the party or his agent. (Order XVI, Rule 2). Order XVI, Rules 1 and 1(A) adumbrate that the witnesses at the trial court are to be produced for examination by the parties by their filing the list, and omission thereof

prohibits them to avail the assistance of the court to secure their assistance to give evidence or to produce documents on their behalf. Order XVI, Rule 1(A) has been added to see that the undue delay should not be caused in the trial of the suit by filing list of witnesses or the documents at belated stage. It lays down that on or before the date fixed by the court for settlement of issues and later than 15 days after the date on which issues were settled, the parties are to file the list of witnesses. On their failure to do the same, Rule 1(A) says that they may without assistance of the court bring witnesses to give evidence or to produce documents. Thus if they fail to obtain the summons through court for attendance of witnesses they are at liberty to have witnesses brought without assistance of the court. The legislature did not put a total prohibition on the party to produce the witnesses or the production of the documents for the proof the respective case. Nonetheless, when they seek the assistance of the court, they are enjoined to give reasons as to why they have not filed the application within the tune prescribed under Rule 1, Order XVI. Plaintiff failed to file list of witnesses within prescribed time. The plaintiff filed an application enclosing the list of witnesses to issue summons to them for adducing of evidence they prove the case. In the application supported by affidavit it was stated that they were under the bona fide impression that they already filed the list of witnesses along with the documents and that the mistake of non-filing the list was discovered when they were getting ready for the trial. It was stated that the failure to file the list of witnesses was not intentional. The trial court dismissed the application holding that there was no proper explanation for the delay in filing the list of witnesses. On revision the High Court declined to interfere with the order. The Supreme Court in special leave petition found that the trial was yet to begin. Scheme Under Order XVI, Rules 1, 1-A, and 6:

The scheme under Order XVI, Rules 1 and 1-A, C.P.C. is that after the court frames issues and serves notice on the parties enabling them to determine what evidence, oral and documentary, they would like to lead, a party can act either in accordance with Rule 1 or Rule 2. Where the party wants the assistance of the court to procure presence of a witness on being summoned through the court, it is obligatory on the party to file the list with the gist of evidence of the witness in the court as directed by sub-rule (1) of Rule 1 and make an application as provided by sub-rule (2) of Rule 1. However, in cases where the party would be in a position to produce its witnesses without the assistance of the court, it can do so under Rule 1-A of Order XVI irrespective of the fact whether the name of such witness is mentioned in the list or not and the court has no jurisdiction to decline to examine such witnesses. Sub-rule (3) of Rule 1 and Rule 1-A operate in two different areas and cater to two different situations, and there is no inner conflict between the two. Sub-rule (3) of Rule 1 confers a wider jurisdiction on the court to cater to a situation where the party has failed to name the witness in the list and yet the party is unable to produce him or her on his own under Rule 1-A and in such a situation the party of necessity has to seek the assistance of the court under sub-rule (3) to procure the presence of the witness. A person may also be summoned to produce a document without being summoned to give evidence and that person will be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same. (Order XVI, Rule 6) JUDGEMENT AND DECREE:

(ORDER

XX)

Section. 2(9) of the Code of Civil Procedure states that a “judgment” means the statement given by the judge on the grounds of a decree or order. S. 33 of the CPC tells us that a Court, after the case has been

heard, shall pronounce judgment, and on such judgment a decree shall follow. S.33 indicates that a decree follows a judgment. From section 2(9), we understand that judgment is the statement of the Court on the grounds for having arrived at a decision. Every judgment delivered by a Court to which the CPC applies has to deliver a reasoned judgment. A judgment must contain the following components: 1. brief statement of facts of the case; 2. issues for determination; 3. decision on such issues and finally 4. reasons for such a decision A judgment is meant to be adhered to by those to whom it applies and such people have a right to know the reasons of the Court for holding a particular point of view. This also helps them challenge the decision and the reasons for the decision in a higher forum. Again, when it goes to a higher forum, the appellate forum too has to have an opportunity to know the reasons for a decision which proves application of the mind by the Judge concerned. Section 2(2) defines decree to mean the formal expression of an adjudication which, so far as 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 and may be either preliminary or final. “Formal expression” means the recordation of the ruling of the Court on the matter presented before it; “so far as the Court expressing it” alludes to the fact that the same issue cannot be adjudicated by or before the Court again but only before a higher forum i.e. an appellate forum. It is the initiation of a suit from a plaint. Only a plaint may lead to a decree unless otherwise required by certain statutes under which an application is treated as a suit. Under Order XX Rule 6 a decree must be drawn separately after a judgment. It must be understood that no matter what a particular document is ostensibly referred to as, if it starts with a plaint in a suit and fulfils the requirements of a decree, it shall be a decree. The Code recognises certain categories of “deemed decrees”. A deemed decree is one which, though not fulfilling the essential features of a

decree as required by the Code, has been expressly categorised as a decree by the legislature. The rejection of a plaint and the determination of questions under s.144 are “deemed decrees”. Only those rejections which are authorised by the CPC may be termed as decrees. What this means is an appeal may lie from the rejection of a plaint for a decree has been passed. Alternately, the Code does not bar remedying the situation by presenting a fresh plaint. The difference between a preliminary and final decree though fairly straightforward has been the subject matter of debate. A final decree here means disposal of the suit; if a decree has been passed but the suit has not been completely disposed off, then the decree is a preliminary one. A preliminary decree is usually passed where the Court waits for the situation to mature itself to a stage where a final decree may be passed. It is usually passed in suits for possession and mesne profits, suits for pre-emption etc. Again section 2(14) defines order to mean the formal expression of any decision of a Court which is not a decree. The starting point for an order need not always be a plaint, it may be an application or petition. Though being a formal expression, it follows that an order need not conclusively determine the rights of parties on any matter in dispute. However, it may relate to the matters in controversy. There may be a preliminary decree, but not a preliminary order. Every decree is appealable but every order is not. ( Shankar vs Chandrakant 1995 SCC (3) 413.) Again, a second appeal lies to the High Court from a first appeal, but there is no second appeal from appealable orders. ( Narayanan vs Laxmi Narayan AIR 1953 Assam 193.) There was no time limit prescribed for the pronouncement of judgment prior to the amendment in 1976 which led to a persistent demand all over India for the imposition of a reasonable time frame for the declaration of judgment after the hearing of the case gets over. (R.C. Sharma v. Union of India, 1976 AIR 2037.) The Civil Procedure Code does not provide a time limit for the period between the hearing of arguments and the delivery of a judgment. At the

same time, an unreasonable delay between hearing of arguments and delivery of a judgment, unless explained by exceptional or extraordinary circumstances, is highly undesirable even when written arguments are submitted. It is not unlikely that some points which the litigant considers important may have escaped notice. Even what is more important is the litigants must have complete confidence in the results of litigation. This confidence tends to be shaken if there is excessive delay between hearing of arguments and delivery of judgments. Justice, as we have often observed, must not only be done but must manifestly appear to be done. Accordingly amendment was introduced providing a time limit for the declaration of the judgment. If it is not possible to pronounce the judgment at once, it should be declared within thirty days from the day of conclusion of the hearing and in case some extreme situation arises then the provision is also there to extend this declaration of pronouncement till the sixtieth day from the conclusion of hearing. Thus judge have a discretionary power for the pronouncement of judgment for these sixty days but after that declaration becomes mandatory on the part of the judge. (Rai v. State of Bihar, Appeal (crl.) 389 of 1998.) Alteration in Judgment: Before the pronouncement of judgment, the judge has every right to change his mind but the dilemma arises in the situation when judgment has been declared in the open court and after that something strikes to the judge which prompts him to alter the judgment. Hence, the question arises as to whether the changed mind frame should be given prevalence over the old decision or old should be preserved from the new one. Rule 3 of Order 20 of C.P.C. provides that a judgment once signed cannot be amended or altered afterwards except to correct clerical or arithmetical mistakes or errors due to accidental slips or omissions as mentioned in section 152 of the C.P.C. or on review. According to Allahabad High Court in Sangam Lal v. Rent Control and Eviction Officer, AIR 1966 All 221, a judgment dictated in an open court can be changed, even completely, before it is signed provided

notice is given to all parties concerned and they are heard before the change is made. Reasoning given for this judgment was that they do not want to construe the rules too technically as they are indeed rules to further the ends of justice; so they should not be viewed too narrowly. This view of the Allahabad High Court was also accepted by the Delhi High Court in the case of Ram Ralaya v. The Official Receiver, AIR 1976 Delhi 172. But the Gujarat High Court disagreed with this view and was of the opinion that once a judgment has been pronounced or delivered in an open court, though formal corrections may be made before the judge signs it, the core of it cannot be altered or changed so as to modify the order or amend or even set it at naught. Basically judgment is the final decision of the court intimated to the parties and to the world at the large in an open court. This declaration is the intention of the mindset of the court after going through the tedious process of the wholesome hearing. The rules regarding this differ but they do not form the essence of the matter and if there is any irregularity in carrying them out it is curable. Thus, if a judgment happens not to be signed and is inadvertently consequent on acted on and executed, the proceedings consequent on it would be valid because the judgment, if it can be shown to have been validly delivered, would stand good despite defects in the mode of this subsequent authentication. The court can do some formal corrections but the core of it cannot be altered or changed so as to modify the order or amend or even set at naught the same. (Ishwarbhai v. Vadilal, AIR 1968 Guj. 289). That can be done only by the Court in appeal or in revision. Even with the consent or agreement of the parties also, a judgment cannot be altered or amended. Reasoning To Be Provided in the Judgment: Before judging, it is essential to have entire facts before it and then take out the relevant portions to make a concise statement of the case. Thus, a judgment should inaugurate with the facts of the case in brief. Rule 4(2) of Order 20 of C.P.C. states that apart from the judgment of Small Cause

Courts, judgments of all other Courts shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decision. Hence, after laying down the facts, facts in issue should be settled by bringing out the claims which are disputed between both the parties; thus issues should be framed. Framing of issues should be done via Rule 1 of Order 14 of C.P.C. Now after issues are framed, points for determination come into picture and for determining those points, need for extra force is required. It is not possible to cruise through the disputed facts in the absence of any peaceful land. In order to satisfactorily reach on a judicial determination of a disputed claim where substantial questions of law or fact arise, it has to be supported by the most cogent reasons; (Subramania v. Corera, AIR 1925 Madras 457), a mere order deciding the matter in dispute without any reasoning is no judgment at all. As per Rule 5 of Order 20 of C.P.C. court has to state its decision with reasons on each issue separately unless the finding upon any one or more of the issues is sufficient for the decision of the suit. But Rule 2 of Order 14 of C.P.C. requires that a court should decide on all issues even if the case can be decided by settling few issues only except where a pure question of law relating to jurisdiction or bar to suit is involved. Further with the addition of an explanation to Rule 22 of Order 41 of C.P.C. which empowers a respondent in appeal to file cross objection in respect of findings against him in a decree notwithstanding that by reason of the decision of the court on any other finding which is sufficient for the decision of the suit the decree is wholly or in part in favour of the respondent. The intention of the legislature is clear that the court will now have to decide and state its findings on all the issues even if it considers that finding for one or only few issues is sufficient for the disposal of the case. Thus in order to have a harmonious construction of all these rules, it would be judicial to amend the Rule 5 of Order 20 of C.P.C. by omission of the words unless the finding upon any one or more of the issues is

sufficient for the decision of the suit at the end . Moreover, principle of res-judicata operates after the determination of the case; so in case if judgment is not given by deciding all the issues then problem can erupt in future whether the rule of res-judicata will operate or not for that particular issue. There is ambiguity whether recording of reasons for each issue is one of the principle of natural justice or not but it is inevitable for providing safeguard against possible injustice and arbitrariness and provides protection to the person adversely affected. The court must decide all the issues of fact, which arise between the parties as if the appellate Court takes a different view; the parties are saved from further harassment . Court has to refer in its judgment all the submissions made before it and have to deal with it even if the court is of the opinion that there is no substance in any of the submission; in those extreme situations the Court may just refer to the same and say that there is no substance. In the absence of discussion in detail of the evidence by the parties, it cannot be said that its judgment is no judgment in the eyes of law. All the court has to do is to frame proper issues and to keep in mind all the points involved in the case and has discussed all those points, though in brief; thus giving full respect to the judgment. Problem arises where there is absolutely no evidence on the record and the plaintiff is wholly unable to proceed with the case; in that situation an order simply dismissing the suit without a finding on every issue is not bad. It would be a sheer formality to write a judgment on each issue in these scenarios.

RES JUDICATA The doctrine of Res-judicata is enunciated in section (11) of C.P.C is in the following words: According to section (11), "No Court shall try any suit or issue in which the matter' directly and substantially has been directly and substantially in issue in a former suit between the same parties, or between parties

under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court." Meaning Res-judicata technically means that a matter in issue which has already been tried by competent Court, then trial between the same parties inrespect of the same matter shall not be allowed. Res-judicata is very important doctrine of C.P.C, it emphasis that a subject matter of the suit which has already been decided, is deemed to be decided forever, and can't be reopened by the same parties. The rule of Res-judicata is based upon the principle that no person should be vexed twice for the same cause of action, and the interest of the State behind this principle is that, there should be an end to litigation. Object The object of Res-judicata is to prevent a question which has already been decided to be re-agitated. A question finally decided at one stage of a proceeding cannot be re-agitated between the same parties or their representatives at a subsequent stage. Kinds There are two kinds of Res Judicata: 1. Actual Res-judicata: It means a matter actually resolved by Court, between the parties in earlier suit cannot be reopened through subsequent suit. In-other words an issue has been alleged by one party and either denied or admitted, (expressly or impliedly) by other party in earlier suit, second suit in respect of the same matter can not be filed, and if any is filed, the same would be hit by actual Res-judicata. 2. Constructive Res-judicata:

It means a matter which might and ought to have been made ground of claim or defense in a former suit, but a party ignores it, then that issue shall be deemed to have been a matter directly and substantially in issue in such suit. In other words if a party had an opportunity that he ought to have taken a plea (as a plaintiff or defendant) if he fails to do so, and the matter is decided, the decision will operate as Res-judicata in-respect of all issues, which were taken, and which ought and might have taken/ and second suit would not lie for such issue. Essential conditions of res-judicata: For applicability of Res-judicata the following conditions must be present: 1. A previous suit in which the matter in issue directly and substantially should have been decided. 2. A competent Court of Civil jurisdiction should have decided it. 3. It should have been decided on merits and final decision should have been made after hearing. 4. It should contain directly and substantially same matter in issue. 5. It should have been contested between the same parties or their legal representatives, such parties are indulging litigation under the same title, with respect to the same cause of action. If these conditions are fulfilled then subsequently/further instituted suit shall be liable to be dismissed by application of doctrine of Res-judicata.