The Code Of Civil Procedure - Final (1).doc

CODE OF CIVIL PROCEDURE AND LAW OF LIMITATION Introduction: A robust Justice Dispensation system is fundamental in the development of a nation for securing faith and allegiance to its system from it subjects.it is not only the standard of substantive law that which matters in this case; but also the quality and efficiency of procedural law is also of utmost importance. Procedure is the machinery, having its object to facilitate the administration of Justice and is a process necessary to be undertaken for recognition enforcement of legal rights and liabilities of the litigating parties. The procedure rules are not mere technicalities and it is a misconception to ignore them altogether. The procedural law serves the very ends of justice under the substantive law. The Civil Procedure Code, 1908 is a comprehensive legislation dealing with the procedure to be followed by the civil courts in India. Its principles are applied in Tribunals and other Fora of adjudication though in a limited extent. It is divided into mainly two parts viz. the Sections and Orders. The general principles of the Code are contained in the Sections and detailed procedure is elaborated under the Orders. The present Teaching Plan is intended to give an overall idea to the students as it is applied in the Court in a lucid and realistic manner. Pedagogy: The Civil Procedure Code is basically a substance of day to day Court practice and it is highly difficult to understand the same without a little touch of actual practice of law. At the same time, it is also difficult to teach unless the teacher has practical exposure to the Court proceedings. Therefore, teaching the Civil Procedure Code requires a totally different Pedagogy. It is intended to approach the subject as it is applied in the civil courts right from filing a suit to execution of decree, incidental proceedings, appeal, revision, review, etc. The teaching plan will be supported by Presentations, Classroom lectures, exposure to hypothetical problems, Guest lecture by practising lawyers, Case studies and evaluation of judgments, in addition to Court and chamber visits.

Objectives: The objective of the course is to familiarise the students with the real life practical situations and expose them to the law as applied by the Court. At the same time, a strong base on theory will also be developed. The expected outcome is to produce “ready to practice lawyers”. Use of Power Point: Power Point presentation will be used as and when required. Evaluation: Students will be continuously evaluated by means of project assignments, case evaluation, snap test and moot court. Mid-term/End-term evaluation will be as per the Scheme approved by the UG Council of MNLU. Recommended Reading: 1. 2. 3. 4. 5. 6. 7.

Mulla:- Code of Civil Procedure. Sarkar:- Law of Civil Procedure. Mujumdar & Kataria: - Commentary on Civil Procedure Code. Saha A. N. :- Code of Civil Procedure. C. N. Thakkar: - Code of Civil Procedure. Mallick & Mitra:- Law of Limitation. Mulla:- The Key to Indian Practice.

STUDY PLAN UNIT

NAME OF CHAPTERS

I 1.

INTRODUCTION Nature, Scope and development of Civil Procedure Code and comparison with Criminal Procedure Code

No. of Lectures 4

2.

Composition and Hierarchy of Civil Court in India –

3. 4. 5. II 1. 2. 3. 4. 5. 6.

Integration with Criminal Courts at Lower Level. Suit of Civil Nature Cause of Action for filing a Suit Jurisdiction of the Courts. INSTITUTION OF SUITS Who can institute a Suit Essential of a Suit Parties to Suit Jointer, Non- Jointer & of Parties. Title of a Suit & Place of Suing Limitation, Court Fees and Other requirements &

7. 8. 9. III

compliance Taking cognizance of Suit by a Court Framing of Suit Res Sub judice & Res judicata PLEADINGS IN GENRAL & PLEADINGS IN

1. 2.

PARTICULAR Definition, Object and Importance of Pleadings Basic Rules of Pleadings – What need to be; What need

3. 4. 5. 6.

not be pleaded? Forms of Pleadings Pleadings in Writ Petitions Constructions, Verifying and Striking of Pleadings. Amendment of Pleadings – Objects, Procedure and

IV

Scope. APPEARNCE AND NON - APPEARANCE OF

8

1. 2. 3. 4. 5. 6. 7. 8. a. b. c. d. e. f. g. 9. 10. 11. V.

PARTIES Summons, Notice and Warrants Procedure on Appearance of Opposite Parties Procedure on Non- appearance of Opposite Parties Ex-parte proceeding – Scope and Objects. Setting aside ex-parte Orders & Decrees Production, Discovery and Inspection of Documents. Admission & Denial of documents Interim Orders – Scope & Objects Security for costs Commission Receiver Arrest before Judgment Attachment before Judgment Temporary Injunctions Procedure on Death, Marriage & Insolvency of Parties. Framing of Issues Compromise & Withdrawal of Suit Trial of Suit SPECIAL SUITS

8

10

8

1. 2.

Suits by or against Government Suits by or against Foreign Rulers, Ambassadors and

3. 4. 5. 6. 7. 8. 9. 10. 11. VI. 1. 2. 3. 4.

Certain other class of persons or entities Suits by or against Corporations Suits by or against Partnerships Suits by or Trustees, Administers, etc. Suits by or against Minors & Lunatics, etc. Interpleader Suits. Friendly & Family Suits Suit by Indigent Persons Mortgage Suits Summary Suits JUDGMENT AND DECREE Judgment – Definitions and Essentials Orders Decrees Judgment & Decree in Special Suits- Essentials &

5. VII A. 1. 2. 3. 4. 5. 6. 7.

Contents Awarding Interest & Cost in Judgment APPEALS, REVISIONS, REFERENCE & REVIEW APPEALS First Appeal – Scope and requirements Procedure for filing, hearing and disposal of First Appeal Cross Objections and Cross Appeals Powers of Appellate Courts Second Appeal – Nature, Scope and Objectives Substantial Question of Law Procedure of filing, hearing and disposal of Second

8. 9. B. 1. 2. C. 1. 2. D. 1. 2. 3. VIII. 1. 2. 3. 4. a. b.

Appeals Appeals from Orders Appeals to Supreme Court. REVISION Nature, Scope and Objectives Procedure for filing and disposal REFERENCE Nature, Scope and Objectives Procedure for making and hearing reference REVIEW Nature, Scope and Objectives Grounds & Circumstances Procedure EXECUTION Meaning, Nature and Scope Forms & Contents of Application for Execution Powers of Executing Court Mode of Execution of Decrees Delivery of Property Attachment & Sale of Property

10

13

10

c. d. e. f. 5. IX. 1. 2. 3. 4. 5. X. 1. 2. 3.

Arrest & Detention Partition Appointment of Receiver Distribution of Assets Adjudication of Claims in Execution MISCELLANEOUS Transfer of Cases Restitution Caveat Delay in Litigation Mesne Profit LAW OF LIMITATION Object and Nature Application of Limitation Calculation of Limitation

4

5

STUDY MATERIAL THE CODE OF CIVIL PROCEDURE, 1908 Introduction: During the British Rule, there were various Civil Procedures followed in various Provinces. These various civil procedures had caused much confusion, complexity in the Appellate Courts. So, there was a need to form a Uniform Civil Procedure Code. And so, for the first time in the year 1958, the Civil Procedure

Code was enacted. The same was re-drafted in 1877 and 1882 and finally in 1908. This Code came into force on First day of January 1909. This Code has lain down for the purpose of Regularizing the Procedure of the civil courts. This Code is not a mere copy of English Common Law but is also based on Justice, Equity and Good Conscience. Scheme Of The Code: The Code of Civil Procedure, 1908 consists of Two Parts: 1. 2.

Sections - The Code contains Total 158 Sections; and Schedules - The Code contains One Schedule.

First, there were Five Schedules. Out of these five Schedules, second to fifth Schedules were repealed and omitted by the later amendments to the Code. The First Schedule consists of 51 Orders. (Actually in totality 55) Each Order consists of various Rules. The number of Rules varies from one Order to another Order. After the rules, there are Eight Appendices, in which the Forms are given. These forms are helpful for regular practice in conducting the proceedings. It shows that the whole code has been divided into Sections and Orders & Rules. Then question arises why such a difference has been made in the code? Sections in the code lay down the Substantive Rights of the Litigants. They also create the Jurisdiction. Sections are the ‘Body’ of the code. They lay down the General Principles of Procedure etc. On the other hand, the Rules in the Orders lay down the Essential Rules of Procedure to be followed. If Sections lay down the Principles of creating jurisdiction, Rules lay down the mode of exercising that jurisdiction. If Sections are considered as the ‘Body’, the Rules can be considered as ‘veins and nerves’ of that body, without which the Body cannot survive. The Sections, can he amended or repealed by the Legislature only. Whereas, the Rules are more readily amendable, alterable by the High Courts and the State Legislatures. The High Court have been empowered to create the Rules of practice. The Main Object of the code is to regularize the civil procedure in the courts. The Preamble of the Code provides that – ‘An Act to consolidate and amend the law relating to the Courts of Civil Judicature.’ The Code is a Procedural Law. It is not an enactment providing for the punishment or

penalties. It is to be construed as to render Justice. The Code provides the Machinery by which the courts shall do justice between the parties. Application and Scope: This Code extends to the whole of India except – (a) the State of Jammu and Kashmir; (b) the State of Nagaland and the tribal areas: Provided that the State Government concerned may, extend the provisions of this Code or any of them to the whole or part of the State of Nagaland or such tribal areas, as the case may be, by notification in the Official Gazette, with such supplemental, incidental or consequential modifications as may be specified in the notification. Explanation: In this clause, ‘Tribal Areas’ means the territories which, immediately before the 21st day of January, 1972, were included in the tribal areas of Assam as referred to in paragraph 20 of the Sixth Schedule to the Constitution. In relation to the Amindivi Islands, and the East Godavari, West Godavari and Visakhapatnam Agencies in the State of Andhra Pradesh and the Union territory of Lakshadweep, the application of this Code shall be without prejudice to the application of any rule or regulation for the time being in force in such Islands, Agencies or such Union territory, as the case may be, relating to the application of this Code. It has been extended to the Districts of Koraput and Ganjam Agency by Orissa Regulation, section 2. It also extends to the Union Territory of Lakshadweep, Goa, Daman and Diu, Dadra and Nagar Haveli and to the State of Sikkim. It has been extended to and brought into force in the State of Manipur w.e.f.1-1-57.

Composition and hierarchy of civil courts in India:

The administration of justice system can be broadly classified into Civil and Criminal Justice administration. Though the procedural codes give a broad outline about the composition and the functions of various courts, there is sufficient space for the State Governments to frame their own rules with respect to hierarchy of Courts.

Jurisdiction of Civil Courts: ‘Jurisdiction’ in a general sense means a power to work in a specified area. In this code, Jurisdiction may be termed to be the Power of the Court to Hear and Determine a case, also to Adjudicate and Exercise any Judicial Power in relation to it. Jurisdiction is said to be the Authority with which the court is vested to decide the matters and to take cognizance of matters presented to it for its decision.

Suit of Civil nature: ‘Civil’ – The word civil pertaining to the Rights and Remedies to a Citizen as distinguished from Criminal, Political etc. Fundamental principle of English law

i.e. ‘Ubi Jus Ibi Remedium’ has been adopted in the legal system. In fact Right and Remedy are the two sides of the same coin and they cannot be disassociated with each other. Hence a litigant having grievance of civil nature has a right to institute a civil suit in a competent court. Section 9 of the Code of Civil Procedure states the provisions relating to the ‘Courts to try all civil suits unless barred’. It states that – “The Courts shall (subject to the provisions herein contained) have jurisdiction to Try All Suits of a Civil Nature excepting - Suits of which their cognizance is either Expressly or Impliedly Barred. Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II: For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.” Suits of civil nature: Illustrations (a) Suits relating to right to property; (b) Suits relating to right to worship; (c) Suits relating to taking out of religious procession; (d) Suits relating to right to share in offerings; (e) Suits for damages for civil wrongs' (f) Suits for specific performance of contract; (g) Damages for breach of contract; (h) Suits for specific reliefs; (i) Suits for restitution of conjugal rights; (j) Suits for dissolution of marriage; (k) Suits for rent; (l) Suits for or on account; (m) Suits for a right to franchise; (n) Suits for a right to hereditary office; (o) Suits for a right to yojmanvriti; (p) Suits against wrongful dismissal from service and for salary; etc.

Suits not of civil nature: Illustrations (a) Suits involving principally caste question;

(b) Suits involving purely religious rites or ceremonies; (c) Suits for upholding mere dignity or honour; (d) Suits for recovery of voluntary payments or offerings; (e) Suits against expulsion from caste; etc

Section 9A has been inserted in the Code for the application to the State of Maharashtra. It states about – ‘Where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken, such issue to be decided by the Court as a preliminary issue.’ 1) Notwithstanding anything contained in this Code or any other law for the time being in force, if, at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit – - an objection to the jurisdiction of the Court to entertain such a suit is taken by any of the parties to the suit - the Court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting or setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the Court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit. 2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application, the Court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction. (Refer P.M.A Metropolitan Vs. Marthofna AIR 1955 SC 2001 Sinha Ramanuja Vs. Ranga Ramanuja AIR 1961 SC 1720) Cause of Action for filing Suit: The term Cause of Action refers to a set of facts or allegations that make up the grounds for filing a lawsuit. A Cause of Action is therefore by its very nature essential to a Civil Suit, since without a Cause of Action a Civil Suit cannot arise. The question now arises how important exactly is a Cause of Action? The term Cause of Action is mentioned in the Civil Procedure Code, 1908 in various places. The first such instance is in Order I Rule 8 where in the explanation it is written that the parties being represented in the suit need not have the same cause of action as the person they are being represented by. The fact that a Cause of Action is essential to a suit is represented in Order II Rule 2 of the Code wherein it is stated that a plaint must mention the cause of action if it

is to be instituted as a suit. Order VII Rule 1 reaffirms the same. Thus, it can be seen from the beginning that not only is a Cause of Action an important part of the Civil Suit but is in essence the reason that the civil suit exists in the first place. Any claim that is made in the suit flows from the cause of action, and as is stated by the above mentioned part of the code the, claims made must be with respect to the cause of action from whence they arise. To pursue a cause of action, a plaintiff pleads or alleges facts in a plaint, the pleading that initiates a lawsuit. A cause of action is said to consist of two parts, legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Sometimes cases arise where the facts or circumstances create Multiple Causes of Action. There are a number of specific causes of action, including: contract-based actions; statutory causes of action; torts such as assault, battery, invasion of privacy, fraud, slander, negligence, intentional infliction of emotional distress; and suits in equity such as unjust enrichment and quantum meruit. To win a case the Plaintiff must prove the major legal points of the case lie in his favour; these are called the "elements" of that cause of action. For example, for a claim of negligence, the elements are: the (existence of a) duty, breach (of that duty), proximate cause (by that breach), and damages. If a plaint does not allege facts sufficient to support every element of a claim, the court, upon motion by the opposing party, may dismiss the plaint for failure to state a claim for which relief can be granted. The defendant to the Cause of Action must file a Written Statement to the plaint in which, he may admit or deny the claims made by the plaintiff and give his proof for the same and his written arguments to show how the law supports him. The Written Statement may also contain counterclaims in which the states its own causes of action. Finally, the answer may contain affirmative defences. Almost all defences must be raised at the first possible opportunity either in the Written Statement or by motion, else they are deemed waived by the Court. The first Order containing the term cause of action is Order II Rule 2. The object of Order II, Rule 2 is to prevent multiplicity of suits. The Rule applies not only to relief claimed in plaint but also to claims in the form of set off. The test for raising objection under the rule is that whether the claim made in the subsequent suit could have been made in the earlier suit or not. The cause of action must be same for application of the rule. Where some work was undertaken under a contract by plaintiff and extra work was done in connection with the same contract, separate suit in respect of such extra work is not maintainable. Also, parties must be same for the application of this rule. However, except for the cases covered under the Explanation of the rule, where there is option to the plaintiff to choose one of the reliefs, if his claim fails for one relief he can bring another suit for other relief e.g., if a cause of action entitles the mortgagee to get possession in lieu of interest and in alternative to sue for mortgage money, the

dismissal of suit for possession does not bar a suit for recovery of money by way of sale of mortgaged property. Expression 'cause of action' for the purposes of this rule means essential facts constituting the right and its infringement which entitles a person to sue the wrong doer or defaulter or any one liable for it. Same cause of action is sine qua non for attracting the mischief contemplated under Order II, Rule 2. For showing it that the subsequent suit is hit by Rule 2, the defendant must produce certified copy of the plaint of the earlier suit. If the claim in subsequent suit is founded on different cause of action, Rule 2 is no bar, e.g., where defendant's possession over two rooms and plot is under two different licences or their revocation is separate, the earlier suit for possession of two rooms and subsequent suit for the plot is maintainable. Where a plaintiff is not aware of an additional claim at the time of institution of the first suit, Rule 2 is not attracted. In other words the rule bars the subsequent suit only if the plaintiff had knowledge of the additional claim omitted in the first suit. Similarly, where omission to sue for additional relief is due to fraud, the second suit cannot be said to have been barred. But where the plaintiff had the opportunity to add the relief and there was no fraud etc., the omission to include all joint properties in one partition suit, bars the fresh suit of partition for remaining properties even if instituted by plaintiff's son. The defendant who raises objection under Rule 2 must file the copies of pleadings to show the omission. Where in the earlier suit eviction of tenant is sought the second suit for arrears of rent is not barred. Where the plaintiff seeks declaration of title under Order XXI, Rule 63 and thereafter seeks possession in another suit, the suits are not defective. Exceptions to the Rule: (i)

Order XXXIV, Rule 14—Mortgagee, after filing suit for recovery of mortgage debt can institute another suit for sale of the mortgaged immovable property

(ii)

Order XXXIV, Rule 6—Mortgagee even after obtaining decree of sale, may apply for decree of balance sum which could not be recovered from insufficient sale proceeds

(iii)

Section 15A of the Deccan Agriculturist Relief Act permits mortgagee to split his reliefs

(iv) when the second relief was alternative to the one claimed in first suit (v) when the cause of action was not the same (vi) when the earlier suit is withdrawn with permission to file fresh suit (vii) when the plaintiff had no knowledge of the additional claim at the time of institution of first suit.

Joinder of Causes of Action: A plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly; and any plaintiffs having cause of action in which they are jointly interested against the same defendant, or the same defendants jointly may unite such causes of action in the same suit. Where the causes of action are so united the jurisdiction of the court as regard the suit shall depend upon the amount of the value of the aggregate subject matters at the date of the institution of the suit. But this rule cannot permit the joinder of the claim exclusively triable by the Small Causes Courts. When such claims are joined with the claims triable by the ordinary Civil Court the joinder is bad. Rule 6 of Order II, however, provides that where it appears to the court that the joinder of causes of action in one suit may embarrass or delay the trial or is otherwise inconvenient, the court may order separate trials. Rule 4 of Order II lays down that no cause of action shall, unless with the leave of the court, be joined with a suit for the recovery of immovable property, except: 1. Claims for mesne profit or arrears of rent in respect of the property claimed or any part thereof; 2. Claims for damages for breach of any contract under which the property or any part thereof is held; 3. Claims in which the relief sought is based on the same cause of action. The proviso to this rule states that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property. Order II, Rule 4 deals with the joinder of claims. The rule provides that in a suit for the recovery of immovable property, no claims other than those specified in the three exceptions shall be joined without leave of the Court. The word "claim" in the rule refers to a right which would be enforceable if decreed by Court. Where first suit is instituted for damages stipulated in a contract of lease against lessee, the second suit for possession and damages for period after the one covered under first suit is maintainable. Rule 5 of Order II prohibits the joinder of the claim by or against an executor administrator or heir, as such with the claims by or against him personally unless the claim by or against him personally are alleged to arise with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator or heir or are such as he was entitled to, or liable for, jointly with the deceased person whom he represents. Section 20 of the Civil Procedure Code, 1908 is extremely important while discussing case law related to cause of action and is hence reproduced below: Other suits to be instituted where defendants reside or cause of action arises:

Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction(a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) Any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or (c) The cause of action, wholly or in part, arises. The problematic clause is clause 3 of the section which states that “cause of action, wholly or in part, arises”. The clause is thus discussed below: Cause of Action wholly or in part arises: Cause of Action means a bundle of material facts which it is necessary for the plaintiff to prove in order to get relief in the suit. But it does not comprise every piece of evidence which is necessary to produce in order to prove such material facts. Notices under Section 80 of the Civil Procedure Code and under Section 87 do not form part of the cause of action. This is because the notices although essential to the preliminary steps of filing a suit follow the cause of action. Cause of Action wholly or in part arises: Cause of Action means a bundle of material facts which it is necessary for the plaintiff to prove in order to get relief in the suit. But it does not comprise every piece of evidence which is necessary to produce in order to prove such material facts. Notices under Section 80 of the Civil Procedure Code and under Section 87 do not form part of the cause of action. This is because the notices although essential to the preliminary steps of filing a suit follow the cause of action. In the case of Subodh Kumar Gupta v. Srikant Gupta a partnership firm had its registered office in Bombay and and factory and Mandsaur. Two partners were living in Mandsaur and one shifted to Chandigarh. An agreement was drawn up in Bhilai for dissolution of partnership and distribution of partnership assets. The plaintiff filed a suit in Chandigarh Court for dissolution of firm and rendition of accounts alleging that the defendants at Mandsaur had misappropriated the partnership fund, and the agreement created at Bhilai was void and had to be ignored. The Supreme Court held that Chandigarh Court had no jurisdiction to try the suit as no part of the cause of action arose at Chandigarh and the mere allegation of the plaintiff that he was having a branch office at Chandigarh would not confer jurisdiction on the Chandigarh Court. The agreement was also required to be set aside and the Chandigarh Court could not entertain such a suit when it was created in Bhilai.

Cause of Action in a suit for contract: When the negotiations to a Contract were conducted by Telex between two places B and D and acceptance to the contract was communicated at D, the court at D was held to have jurisdiction to entertain the case concerning the contract. The forum for the breach of contract arises at the place the breach occurred or at the place the performance was to be made. It could not be filed at the place the offer was accepted. But it has been held that in relation to a contract cause of action arises where contract was made, or the place where the performance was to be made or performance thereof was completed or the place where in pursuance of the performance any money to which the suit relates was expressly or impliedly payable. In case of Contract by correspondence, contract takes place where the acceptance of the contract was made. It has, therefore, been held that in case of repudiation of contract or for non payment of price the place where the acceptance letter was received is not relevant for determining where the cause of action arose. The cause of action arose at the place of posting the letter of acceptance. Misjoinder of Causes of Action: Where several causes of action are joined together in the suit which cannot be joined there being no common question of law and fact the suit is bad for misjoinder of causes of action or multifariousness. All objections on the grounds of misjoinder of causes of action shall be taken at the earliest possible opportunity and in all cases where issues are framed at or before the framing of the issues unless ground for such objection has subsequently arisen and any such objection not so taken shall be deemed to have been waived, it has, therefore been held that misjoinder of causes of action being not an inherent lack of jurisdiction, if the objection is not raised at the earliest possible opportunity it stands waived. The plea cannot be raised after remand, when the same has not been taken at the earliest opportunity. So any order of the trial court after remand to remove the lacuna is bad. Rejection of Plaint takes place with the non disclosure of cause of action. Non disclosure of cause of action: The court will be justified in rejecting the plaint for non disclosure of cause of action only when looking into the allegations of the plaint and assuming them to be correct comes to the conclusion that the allegations do not disclose any cause of action. But where the court on the conclusion of the trial after considering all evidences and materials comes to find that there is no cause of action for the suit, the suit is to be dismissed and not the plaint rejected. Cause of Action is cause of action for which the suit was brought. Cause of action is cause of action which gives occasion for and forms the foundation of the suit. If that cause of action enables a person to ask for a large and wider relief than that to which he limits his claim, he cannot afterwards seek to recover the balance by independent proceedings.

There are three important factors which cause of action decides in each and every civil suit. They are: 1. Jurisdiction 2. Limitation 3. Rejection of Plaint Cause of Action means the whole of the material facts which it is necessary for the plaintiff to allege and prove in order to succeed Cause of Action consists of a bundle of facts which give cause to enforce the legal injury for redress in a court of law. The Cause of Action means every fact, which if traversed, it would be necessary for the plaintiff in order to prove in order to support his right to a judgment of the court. Cause of Action must be antecedent to the institution of the suit. In Contracts regarding the purchase of goods, cause of action arises at any of the following places: 1. Place of contract 2. Place where contract was to be performed or performance completed thereof 3. Place where money was expressly or impliedly payable. It can thus be seen that Cause of Action is fundamental to a Civil Suit and no civil suit can exist without a cause of action taking place before it. (Refer: Union of India Vs. Ladulal (1963) ASC 1681 Goswami Vs. Govardhanlalji (1890)14 BOM 541)

Jurisdiction of Civil Court: There are Four Kinds of Jurisdiction – a) Territorial Jurisdiction b) Pecuniary Jurisdiction c) Subject matter Jurisdiction d) Original & Appellate Jurisdiction e) Jurisdiction as to the Person a) Territorial Jurisdiction: Territorial Jurisdiction is also called as Local Jurisdiction. The State Government shall in each state Fix the Jurisdiction of each court. The Jurisdiction shall be fixed in accordance with the local needs. The court has to exercise its power within that local or territorial jurisdiction only. It cannot go outside that jurisdiction.

For example: The District Court of Jalgaon has jurisdiction on Jalgaon district only. It cannot exercise its jurisdiction outside the Jalgaon district. The Supreme Court has the jurisdiction all over India. It cannot exercise the jurisdiction outside India. b) Pecuniary Jurisdiction Pecuniary Jurisdiction is also called as Monetary Jurisdiction. Pecuniary or Monetary means which relates to money. Difference civil courts have different grades of jurisdiction either to try suits or to hear appeals. For example: Consumer District Forum has the jurisdiction to try disputes upto the value of Rs.5 lacs. State Commission of Consumers can hear complaints exceeding Rs.5 lacs to Rs.20 lacs. High Courts have the unlimited pecuniary jurisdiction. c) Subject Matter Jurisdiction: Jurisdiction as to subject matter means the jurisdiction to be determined from the point to be decided. Industrial or Labour matters can only be heard by the Labour or Industrial Court. Income Tax Tribunals only has the authority to hear the disputes concerning Income Tax. Matrimonial matters, Testamentary matters, Trust matters can only be heard by the District Court. d) Original or Appellate Jurisdiction: The jurisdiction can also be classified as Original as well as Appellate. Some courts have Original as well as Appellate Jurisdiction e.g. District Court, High Court, Supreme Court etc. While some courts have only Original Jurisdiction such as Small Cause Courts, Courts of Civil Judge etc. f) Jurisdiction as to the Person: Certain persons such as Ambassadors, Envoys, for foreign Rules can only be sued with the consent of the Central Government.

The parties to the suit cannot confer jurisdiction to any court by their consent like Arbitration, Conciliation etc. It is the State Government who has the power to confer jurisdiction on any court. But there is an exception to it -

If 2 or more courts have jurisdiction to try the suit, then the parties may decide among themselves about the court in which the suit should be brought.

A Civil Court has jurisdiction to try a suit if Two conditions are fulfilled:

 

the suit must be of a Civil nature; and the cognizance of such a suit should not have been expressly or impliedly barred

UNIT II INSTITUTION OF SUITS

Who can institute a Suit: The general rule of institution of Civil Suit is that any person who has Locus Standi to file Suit can institute a Suit by filing a plaint before the Court of Competent Jurisdiction. Locus standi means a person who approached the court should show himself that he suffered a legal injury. The Locus standi says that a Writ can be filed by an effected person. However, in case of Mandamus and Certiorari, it can be filed by any person having a common interest with the case. Mere interest is generally not sufficient to file the writ. The person should have more interest than that of an ordinary member. A common citizen has the right to challenge an election if it is held contrary to the provisions of law.

When some persons represents another person’s interested in filing a suit, it is called representative suit. When in a dispute several persons are interested, it can be agitated in a court of law by way of representative suit. This is dealt with under Order 1 Rule 8 of CPC. This rule is an exception to the general rule that all persons interested should be party to the suit. As per Order 1 Rule 8 of CPC, where there are numerous persons having same interest in one suit, one or more of such persons may sue or be sued on behalf of all persons interested with the permission of the court. Essential Conditions: There are certain things which must be needed for a representative suit. They are as follows: 1. There must be numerous numbers of parties; 2. The interest of all parties must be the same; 3. The court should give permission; and 4. Notice must be issued to proposed parties The provision laid down in the law will save the precious time of the Court and cut down expense. The matter can be determined in a single trial. It may be clarified that the numerous persons may not have same cause of action or same transactions. What is required is the same interest between parties to the matter. There are some other things also which can be noted. The further proceeding of representative suit is dealt with in Order 1 Rule 8 sub rules 2 to 6 of CPC. The Court shall give notice at the expense of the plaintiff to all interested persons. Any person who has an interest in the suit and on whose behalf or benefit the suit is

instituted or defended may apply to make himself as a party to such suit. Any abandonment of claim in such suit, withdrawal and compromise has to be made known to the parties. The decree passed in a representative suit shall be binding on all persons.

Related Cases: 

R vs Inland Revenue Commissioner, (1981) 2 WLR 722: The House of Lords has laid down guidelines for determining as to whether or not the petitioner has 'sufficient interest' in a matter.



Veena Sethi vs State of Bihar, AIR 1983 SC 339; Upendra Buxi vs State of UP (1983) 2 SCC 308; People's Union for Democratic Rights vs Union of India, AIR 1982 SC 1473; Bandhua Mukti Morcha vs Union of India, AIR 1984 SC 802: Court relaxed the traditional rule of locus standi and even accepted a letter addressed to it as a Writ.



Olga Tellis vs Bombay Municipal Corporation, AIR 1986 SC 180: The narrow concept of Cause of Action and person aggrieved and individual litigation is becoming obsolescent in some jurisdiction.



Fertilizer Corporation Union vs Union of India, AIR 1981 SC 344: The concept of Ubi jus ibi remedium must be enlarged to embrace all interests of public-minded citizens or organizations with serious concern for conservation of public resources and the direction and correction of public power so as to promote justice.





A shareholder can sue for the infringement of a juristic person's rights if he can show that his personal rights are directly and substantially adversely affected by the action. Biswajeet Sinha v Dibrugarh University, AIR 1991 Gau 27

Place of Suing: Section 15 to 21A of the Code of Civil Procedure, 1908 states the provisions relating to the Place of Suing. The Plaintiff shall file the suit or the proceedings in a competent and appropriate Court. So, the code has given the provisions relating to the Place where the suit or the proceedings shall be filed by the plaintiff. Section 15 of the code states that, “Every suit shall be instituted in the Court of the Lowest Grade competent to try it.” Section 15 refers to the Pecuniary Jurisdiction of the Court. It is a Rule of Procedure and not of Jurisdiction. This section lays down that suit shall be instituted in the court of the lowest grade, it does not oust the jurisdiction of the courts of the higher grade which can try the suits under the Acts constituting them. There are two fold objects behind this provision: a) To see that the courts of the higher grade should not be overburdened with suits. b) To afford convenience to the parties and the witnesses who may be examined by them in such suits. Sections 16 to 20 deals with the Place of Institution of suits. Section 16 lays down the provisions relating to the ‘Suits to be instituted where subject-matter situate.’ “Subject to the pecuniary or other limitations prescribed by any law, suits: a) for the recovery of immovable property with or without rent or profits, b) for the partition of immovable property, c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property, d) for the determination of any other right to or interest in immovable property, e) for compensation for wrong to immovable property, f) for the recovery of movable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate. Provided that a suit to: -

obtain relief respecting immovable property, or compensation for wrong to immovable property

held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the - property is situate, or - defendant actually and voluntarily resides, or carries on business, or personally works for gain. Explanation: In this section “property” means property situate in India.” For Example: If a land is situated at Jalgaon district and dispute arises as to its partition, then if a suit is to be filed for partition, a suit must be filed in the court of Jalgaon district. Section 17 of the Code deals with the provisions relating to the, ‘Suits for immovable property situate within jurisdiction of different Courts.’ “Where a suit is to: - obtain relief respecting immovable property, or - compensation for wrong to immovable property situate within the jurisdiction of different Courts, the suit may be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate. Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such Court.” For Example: A person is having 10 acres of land in Jalgaon & Dhule district, 5 acres in Jalgaon and 5 acres in Dhule. If any dispute arises regarding that property, then the suit may be instituted in any of these districts. Section 18 of the code deals with the provisions relating to, ‘Place of institution of suit where local limits of jurisdiction of Courts are uncertain.’ It states that – l) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate: -

any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and dispose of any suit relating to that property,

and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction. Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction. 2) Where a statement has not been recorded under sub-section (1), and an objection is taken before an Appellate or Revisional Court that – - a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate - the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit – no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and – there has been a consequent failure of justice.” It provides that where there is an uncertainty regarding the local limits of jurisdiction of which two or more courts any immovable property is situate, any one of those courts may, if satisfied that there is a ground for the alleged uncertainty, proceed to entertain and may dispose of any suit. Section 19 of the code states the provisions relating to the, ‘Suits for compensation for wrongs to person or movables.’ “Where a suit is for compensation for wrong done – to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.” -

Illustrations: a) A, residing in Delhi, beats B in Calcutta. B may sue A either in Calcutta or in Delhi. b) A, residing in Delhi, publishes in Calcutta statements defamatory of B. B may sue A, either in Calcutta or in Delhi. Section 20 of the code states the provisions relating to the, ‘Other suits to be instituted where defendants reside or cause of action arises.’ “Subject to the limitations aforesaid, every suit shall be instituted in a Court within the local limits of whose jurisdiction – a)

the defendant, or each of the defendants where there are more than one,

at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or b)

any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or c) the cause of action, wholly or in part, arises. Explanation: A corporation shall be deemed to carry on business at its sole or principal office in India or, in respect of any cause of action arising at any place where it has also a subordinate office, at such place.” Illustrations: a) A is a tradesman in Calcutta. B carries on business in Delhi. B, by his agent in Calcutta, buys goods of A and requests A to deliver them to the East Indian Railway Company. A delivers the goods accordingly in Calcutta. A may sue B for the price of the goods either in Calcutta, where the cause of action has arisen, or in Delhi, where B carries on business. (b) A resides at Simla, B at Calcutta and C at Delhi. A, B and C being together at Banaras, B and C make a joint promissory note payable on demand, and deliver it to A. A may sue B and C at Banaras, where the cause of action arose. He may also sue them at Calcutta, where B resides, or at Delhi, where C resides; but in each of these cases, if the non-resident defendant objects, the suit cannot proceed without the leave of the Court. Section 21 of the Code provides for the Objections to Jurisdiction. “1) No objection as to the place of suing 2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless – -

such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court

unless such objection was taken in the executing Court – - at the earliest possible opportunity, and - unless there has been a consequent failure of justice.” Section 21A states the provisions relating to the, ‘Bar on suit to set aside decree on objection as to place of suing.’ “No suit shall lie challenging the validity of a decree passed in a former suit between – - the same parties, or - the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing. Explanation: The expression “former suit” means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned.”

Material for further reading: Where to file the case: (Courtesy: Legalserviceindia.com) Before filing a suit one should know where or before which Court the suit has to be filed. It is called place of suing. Place of suing is subjected to two limitations: (1) territorial jurisdiction of the Court; and (2) pecuniary jurisdiction of the Court, Territorial jurisdiction depends upon the nature of the suit, i.e. subject matter of the dispute. Depending upon the nature of subject matter, suits are divided into 3 categories. They are: i.

Suits relating to immovable property.

ii.

Suits relating to compensation for wrongs to person and movables.

iii.

Other suits. 2. In case of Suits relating to immovable property: As a general rule suits relating to immovable property shall be filed in the Court within the local limits of whose territorial jurisdiction the property is situate, In other words, where the property in dispute is situated.

Section 16 of the Civil Procedure Code is as follows: Suits to be instituted where subject matter situate: Subject to the pecuniary and other limitations prescribed by any law, suits(a) for the recovery of immovable property with or without rent or profits. (b) for the partition of immovable property. ( c) for the foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property. (d) for the determination of any other right to or interest in immovable property. (e) for compensation for wrong to immovable property. (f) for the recovery of immovable property actually under distraint or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant may, where the relief sought can be entirely obtained through his personal obedience, be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily resides, or carries on business, or personally works for gain." Here it should be noted that the pecuniary jurisdiction of Courts differ from State to State. There is yet another limitation regarding the filing of suits on immovable property. It is clear from the proviso to Section 16. The proviso relates to the suits for compensation in relation to immovable property held by or on behalf of defendant and where the relief sought can be entirely obtained through his personal obedience. That means, the relief for compensation is independent of its own and has nothing to do with other relief's regarding immovable property referred to in clauses (a) to (d) of Section 16. 3. Property at distant places: 1, 2, 3, 4 are brothers. They are living at different places like A and B. They are having their immovable ancestral properties at A, B and C. 1 prefers to file a suit for partition against 2, 3 and 4. He can file the suit at A, B or C i.e where a portion of the property is situate. But in such cases, the entire suit claim has to be taken into consideration for purpose of payment of court fee and pecuniary jurisdiction. In the above example, no doubt the suit for partition can be filed at A provided the total value of property situated at A, B and C is less than rupees one lakh. This is so because only Junior Civil Judge Court is located at A. If the total value of the entire property is more than rupees one lakh the suit cannot be filed at A. The suit can be filed at B,, or at C where Senior Civil Judge are located. It is clear from the wording of

Section 17 of Civil Procedure Code which runs as follows : Suits for immovable property situate within jurisdiction of different courts:Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is situate: Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such court. ' 4. Suits for compensation for wrongs to persons or movables: As far as a suit relating to immovable properties and the relief is by way of compensation, suit can be filed at two places: (1) where the defendant resides or (2) where the wrong was done to the movables. The same will apply to the suits for compensation for wrongs to persons. Section 19 of Civil Procedure Code reads as under: Suits for compensation for wrongs to person or movables: Where a suit is for compensation for :\Tong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one court and the defendant resides, or carries on business or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be institute at the option of the plaintiff in either of the said courts. To put it differently, this section corresponds to suits for damages or compensation in relation to persons or movable property. Suits involving tortious liability are covered by this section. We are aware that Tort is a civil wrong for which the relief lies by way of claiming unliquidated damages. Nuisance, negligence, defamation, accident, trespass etc. come under tortious liability. In such cases the two options where to file the suit are where the defendant resides or carries on business or work for gain or where the tortious act takes place. It is for the plaintiff to choose either of those places. Of course, this section is also subjected to pecuniary jurisdiction. 5. Filing of suits in other cases: As far as other suits not covered under Sections 16, 17 and 19 of Civil Procedure Code, the suits have to be filed where the defendant resides or cause of action wholly or in part arises. Money suits are the best example to understand the position easily. 'A' borrowed Rs. 20,000/- from 'B'. 'A' resides at Guntur and 'B' resides at Mangalagiri. Pronote was executed at Mangalagiri. 'B' can file a suit against 'A' for recovery of amount either at Mangalagiri or at Guntur. Ifthe amount borrowed is above rupees one lakh, the suit should be filed only at sub-court, Guntur.. There is one more thing

to be kept in mind which is very important. The word 'where defendant resides' means, where he actually resides at the time of filing of the suit. For example: 'A' and 'B' are residents of Guntur. 'A' borrowed some amount from 'B' at Guntur. Subsequently, 'A' shifted his family to Nellore. 'B' shifted his family to Hyderabad. 'B' can institute a suit against 'A' at Guntur or at Nellore. Section 20 of Civil Procedure Code is as under: Other suits to be instituted where the defendant resides or cause of action arises: Subject to the limitations aforesaid, every suit shall be instituted in a court within the local limits of whose jurisdiction(a) the defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or (b) any of the defendants, where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business or personally works for gain, provided that in such case either the leave of the court is given, or the defendants who do not reside, or carry on business, or personally works for gain, as aforesaid, acquiesce in such institution; or (c) the cause of action, wholly or in part, arises. Explanation: A Corporation shall be deemed to carry on business at its sole or principal office in India or in respect of any cause 0 action arising at any place where it has also a subordinate office, at such place. A reading of Clause (a) and (b) requires some careful examination. Where there is only one defei1dant, there is no problem. But where there are more defendants than one, where to file the suit? In such a case, different suits have to be filed where each of the defendant resides. Such a thing is not advisable because it is a very costly affair that leads to conflicting judgments. The only alternative is to file a suit where cause of action for the suit arises. This is the best suitable method. Even if there are ten defendants and are residing at 10 different places, a single suit can be filed against all of them where the cause of action arises. But in some cases, the place where cause of action arises may be far away from where the plaintiff resides. One of the defendants may be residing very close to the plaintiff. In such a case, what is the option for the plaintiff?

Clause (b) of Section 20 gives the answer. In such a case, the plaintiff can file a single suit where anyone of the defendants resides. But either the other defendants should not oppose the same or the court must give pem1ission to the plaintiff for so instituting the suit. Finally a few words about cause of action. Cause of action is not an isolated one, nor a single instance. A number of circumstances and instances constitute cause of action. That means cause of action may arise at more than one place. That is to say arise wholly or in part. It is clear from Clause (c) of Section 20, that suits covered under Section 20 can be filed where cause of action arises wholly or in part. Promissory note transferred for valid consideration is best example. So far we have discussed in detail various aspects regarding place of suing.

ESSENTIALS OF SUITS: Important topics: 1) 2) 3) 4) 5) 6) 7) 8) 9)

Essentials of suit Necessary and proper parties Representative suit Non-joinder of parties Misjoinder of parties Multifariousness Cause of action Misjoinder of cause of action Splitting of claims (Order 2, Rule 2, CPC)

1) Essentials of suit: (1) The opposing parties; (2) The cause of action; (3) The subject matter; (4) The relief claimed; A suit is a proceeding by which an individual pursues that remedy which the law affords. In every suit, there must be at least one plaintiff and one defendant. Every suit must contain a cause of action, which refers to the set of circumstances which leads up to a suit. The subject matter of the suit is the right or property claimed in the suit. The court adjudicates upon the rights of the parties with regards to the subject matter in dispute. The relief claimed should be stated specifically in the plaint. 2) Necessary and proper parties:

Order 1 deals with the subject of parties to suit and inter alia (amongst other things) with the joinder, misjoinder and non-joinder of parties and to some extent with the joinder of cause of action. Under Rule 1, Order 1, all persons having a common cause of action are entitled to join as plaintiffs. Similarly, under Rule 3, several persons may be joined as defendants. A person is a “necessary party” if the suit cannot be effectively disposed of without him i.e. no order cannot be effectively without made. If the decree cannot be effective without the absent parties, the suit is liable to be dismissed. “Proper parties” are those parties whose presence enables the court to adjudicate the matter more effectively and completely. In the case of non-joinder of proper parties the non-joinder is not fatal to the suit. 3) Non-joinder of parties: The omission to join person as party to a suit, whether as plaintiff or defendant, who ought to have been so joined, according to law, is called nonjoinder of parties. All the proper and necessary parties must be joined. In the absence of necessary parties, the suit is liable to be dismissed while in the absence of proper parties, the suit is adjudicated according to law. Though some difficulties may arise, Rule 1, Order 1 says that all persons having a common cause of action are entitled to join as plaintiffs. Similarly under Rule 3, Order 1, several persons may be joined as defendants. 4) Misjoinder of parties: The improper joining together of parties to a suit as plaintiffs or defendants. The joinder in one action of defendants against whom there is no common cause of action, but that against one is totally disconnected with that against the other, except in so far as it is historically connected as one matter in a transaction, is misjoinder. The word “mis joinder” in Section 99 CPC includes non-joinder. The joinder of any person as party to a suit contrary to the provisions of the code is called mis-joinder. It may be a misjoinder of plaintiffs or the defendants. Order 1, Rule 9 provides that no suit is liable to be defeated by reason of non-joinder or misjoinder of parties. Under R. 2, O. 1, where it appears to court that any joinder of plaintiff may embarrass or delay trial of the suit, court may put plaintiffs to their election or order separate trials or make such other orders as may be expedient. Similarly, under R. 3 A, O. 1; the court may order separate trials of the defendants. Rule 4, Order 1 lays down that if several persons joined together as plaintiffs in a suit, but it is found that only some of them are entitled to the relief claimed, a judgment may be given in favour of such persons only, without amendment of the proceedings. Similarly is provided for in respect of defendants. 5) Cause of acton:

The fact of combination of facts which gives rise to right to sue [Section 20, Order 7, Rule 1 (e), CPC]. The expression “cause of action in Section 20, CPC may be defined as being the fact or facts which establish or give rise to a right of action or the existence of which entitles a party to seek redress in a court of law. Cause of action means an action for which the defendant is answerable to court. S. B. C. Laminant Private Ltd. A.P. Agencies, AIR 1989 SC: The performance of a contract is part of cause of action and a suit in respect of the breach can always be filed at the place where the contract should have been performed or its performance completed. A. K. Gupta & Sons vs. Damodar Valley Corporation, AIR 1967 SC: The expression “cause of action” does not mean every fact which it is material to be proved to entitle the plaintiff to succeed. It only means a new claim made on a new basis constituted by new facts. 6) Misjoinder of cause of action: When two or more cause of action which are not connected with one another at all, are joined against the same or different defendants in the same suit, it is called misjoinder of cause of action. The plaintiff should file separate suits on the different cause of action. Order 1, Rule 13 provides that all objections on the ground of non-joinder or mis-joinder of parties or misjoinder of cause of action or multifariousness of a suit shall be taken at the earliest opportunity and before the settlement of issues. Any such objection not so taken is to be deemed to have been waived. To avoid misjoinder of causes of actions, the court may order the plaintiff to file a fresh suit on different cause of action. 7) Multifariousness: Misjoinder of parties and causes of action in a suit is called multifariousness. Where in a suit there are two or more defendants and causes of action, the suit will be bad for misjoinder or defendants and causes of action, if different causes of action are joined against different defendants separately.

Transfer of Suit: Section 22 to 25 of the Code of Civil Procedure, 1908, states the provisions relating to the Transfer of Suit from one court to another. Under ordinary circumstances, only the plaintiff has the right to choose any court which law allows him. Here, the maxim, “Arbiter litis or dominus litis” applies which means the plaintiff has the right to choose any forum the law allows him. But under some extraordinary circumstances, the defendant can also transfer his

case from one court to another. But this transfer can only be on reasonable grounds. Section 22 of the code explains the provisions relating to the Power to transfer suits which may be instituted in more than one Court. Any defendant may at the earliest opportunity – - after notice to the other parties, - where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts and - in all cases where issues are settled at or before such settlement, Apply to have the suit transferred to another Court. And the Court to which such application is made, after considering the objections of the other parties (if any) shall determine in which of the several Courts having jurisdiction the suit shall proceed. Section 23 of the Code states to what Court application under section 22 lies. Where the several Courts having jurisdiction are subordinate to the same Appellate Court, an application under section 22 shall be made to the Appellate Court. Where such Courts are subordinate to different Appellate Courts but to the same High Court, the application shall be made to the said High Court. Where such Courts are subordinate to different High Courts, the application shall be made to the High Court within the local limits of whose jurisdiction the Court in which the suit is brought is situate. Section 24 of the Code provides the General power of transfer and withdrawal. Either – - On the application of any of the parties and after notice to the parties, or - Of its own motion, without such notice, The High Court or the District Court may, at any stage – a) Transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or b) Withdraw any suit, appeal or other proceeding pending in any Court subordinate to it; and - try or dispose of the same; or - transfer the same for trial or disposal to any Court subordinate to it and competent to try or dispose of the same; or - re-transfer the same for trial or disposal to the Court from which it was withdrawn.

Section 25 confers Power on the Supreme Court to transfer suit. Only on the application of a party supported by an affidavit and after notice to the other parties, the Supreme Court may at any stage direct that any suit, appeal or other proceedings be transferred from a High Court or other Civil Court in one state to a High Court or other Civil Court in any other state. Limitation for filing Suit: ** Every suit shall be filed within the period of limitation prescribed by Law. If the suit is not filed within the period of such limitation, the Court will not entertain the same unless, there is specific provision in the Law for condoning the delay and the party is able to satisfy the Court with respect to delay on the basis of sufficient cause. “Period of limitation” means the period of limitation prescribed for any suit, appeal or application by the Schedule, and “prescribed period” means the period of limitation computed in accordance with the provisions of the Limitation Act or any special Act. The period of Limitation for filing suit shall generally run from the date of cause of action. The limitation also applies to appeals, revisions and reviews. 

For every appeal, there is a limited period, within which appeal should be filed. Such a limitation is provided under the Limitation Act, 1963.



For appeal, in case of a decree passed by lower court in civil suit, the limitation is :



Appeal to High Court: 90 days from the date of decree Or order.



Appeal to any other court: 30 days from the date of Decree or order.



In case there are more than one plaintiffs or defendants, then any one of them can file on appeal against all of them respectively.



Merely because an appeal is filed, does not mean that the order or decree of lower court is stayed. In case of temporary stay of decree or order, it has to be specifically asked, and stay will operate only if court grants it.



In case of execution of decree, the court, which passed the decree, can itself stay the execution for time being on sufficient reasons shown.



The court may require the appellant to deposit some sort of security.



The appellate court may, on the day fixed for hearing the appellant dismiss the appeal, or issue notice to the opposite party to appear on next day.



If on the first day of hearing, appellate court issues summons to the opposite party, then :



It shall fix a date for next hearing, and such date shall be published in the court house.



Notice shall also be sent to the lower court, whose decree or order has been appealed.



To appellant is required to file”Process Fee " which is very nominal in amount, and on such filing, the notice shall also be sent to opposite party.



In case of appeal, the one who files the appeal is known as appellant, and against whom it is filed, is known as "Respondent".

Court Fees: The suit shall be filed along with the prescribed court fees. Court fees is levied for the purpose of handling the briefs by the Court. It is also intended to reduce the number of frivolous suits. Generally the Court Fees are fixed on the basis of value of subject matter of the suit. There is a separate legislation by the concerned State Governments governing the levy of Court Fees. (Court Fees Act/ Court Fees And Suit Valuation Act.)

Res Sub Judice and Res Judicata: RES SUB JUDICE: Where two cases are filed between the same parties on the same subject matter in two different courts, the competent court has the power to stay the proceedings of another court. This is called ‘Res Sub Judice’. Section 10 of the Code states about the provisions relating to the “Stay of Suit”. “No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit – -

between the same parties, or between parties under whom they or any of them claim litigating under the same title

where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court. Explanation: The pendency of a suit in a foreign Court does not preclude the Courts in India from trying a suit founded on the same cause of action.” Conditions of Res Sub Judice: 1)

The matter in issue must be substantially the same.

2)

3) 4) 5)

6)

The previously instituted suit must be pending in the same Court or any other court. Such court must be competent to grant – a) the relief claimed in the suit; and b) the relief claimed in the subsequent suit. Both the suits must be between the same parties or their representatives. Such parties must be litigating in both the suits under the same title. The Civil Court has inherent powers to stay the proceedings. Even if section 10 does not apply the court has the inherent power to stay the proceedings. The term Court does not include Foreign Court. So, the pendency of a suit in a foreign court does not preclude the courts in India from trying a suit of the same cause of action.

The provisions of Section 10 are mandatory and no discretion is left with the court. The object of Res Sub Judice is to prevent court of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the same matter in issue. The aim of this section is to Minimise the Litigation and to avoid the conflicting decisions of courts. Also to save the precious the time of the court in trying the same cause of action. In Padamsee Vs. Lakhamsee 1916 43 Cal. 144: Mr. B is a merchant residing in Calcutta, and he has an agent Mr. A, at Bombay, to sell his goods in Bombay, claiming a balance due upon an account in respect of his dealings between Mr. A and Mr. B. Whilst this suit is pending in Bombay, Mr. B files a suit against Mr. A in Calcutta for an account and for damages caused to Mr. A’s alleged negligence. In this case, the matter in issue in Mr. B’s suit is directly and substantially in issue in Mr. A’s suit, further both the suits are between the same parties. In these circumstances, the Calcutta court must not proceed with trial of Mr. B’s suit in Bombay court, being the one instituted prior in point of time, must alone be proceeded with. RES JUDICATA: When a matter has been decided between the two parties in one suit or proceedings by the competent court, and the decision is Final, either because – - no appeal lies, - no appeal was taken to a higher court or - because the appeal was dismissed, or neither party will be allowed in a future suit or proceedings between the same parties to canvass the matter again. This is called as Res Judicata.

This doctrine has been accepted in all civilized legal system. In the words of Spencer Bowel, Res Judicata means “A final judicial decision pronounced by a judicial tribunal having competent jurisdiction over the cause or matter in litigation and over the parties thereto.” The doctrine of Res Judicata is a rule of universal law prevailing everywhere in legal system and is based on following Three maxims: a)

‘Nemo Debet bis vexari pro una et eadem causa’: which means that “No man should be vexed twice over the same cause.”

b)

‘Interest Republica ut sit finis Litium’: which means that “It is in the interest of the state that there should be an end to a litigation.”

c)

‘Res Judicata pro veritate Occipitur’: which means that “A judicial decision must be accepted as correct.”

Section 11 of the Code states the provisions relating to the Res Judicata. It states that – “No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a Former Suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. Explanation I: The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto. Explanation II: For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court. Explanation III: The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV: Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. (Constructive Res Judicata)

Explanation V: Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused. Explanation VI: Where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. Explanation VII: The provisions of this section shall apply to a proceeding for the execution of a decree and references in this section to any suit, issue or former suit shall be construed as references, respectively, to a proceeding for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII: An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. Conditions of Res Judicata: a) b) c) d) e) f)

The matter must be directly and substantially is issued in two suits. The prior suit must be between the same parties or persons claiming under him. Parties should have litigated under the same title. The court which earlier determined the suit must be competent to try the later suit. The question is directly and substantially in issue in the later suit. The former suit must has been heard and finally decided by such competent court.

Distinction between Res Judicata and Estoppel: a) The term Res Judicata is explained in Code of Civil Procedure, 1908. And the term Estoppel is explained in Indian Evidence Act. 1872. b) Res Judicata arises from the decision of the court. Estoppel arises from the Act of the Parties.

c) Res Judicata prohibits and ousts the jurisdiction of the court. Estoppel is only a Rule of Evidence. It shuts the mouth of the party. d) Res Judicata presumes the truth of the former decision. prevents a person from setting up from what he calls the truth.

Estoppel

e) Res Judicata applies only to the Civil proceedings. Estoppel applies both to Civil as well as Criminal proceedings. f) Res Judicata is based on Public policy. Estoppel is based on Equity. g) Res Judicata stops multiplicity of suits. representations.

Estoppel stops multiplicity of

UNIT III PLEADINGS IN GENERAL & PLEADINGS IN PARTICULAR

Pleadings in General:  

“Pleadings” is defined as Plaint and Written Statement. (Order VI, Rule 1) Sub rule (1) or Rule 2 of Order VI lays down the fundamental principles of pleadings. Following general principles emerges on analysis of Rule 2 (1) or Order VI: 1) Pleading should state facts and not law; 2) The facts stated should be material facts; 3) Pleading should not state the evidence; and 4) The facts should be stated in concise form. The facts are of Two types:

a) Facta probanda – The facts required to be proved (material facts); and b) Facta probantia – The facts by means of which they are to be proved (particulars or evidence) The pleadings should contain only facta probanda and not facta probantia. Other rules of Pleadings: Rules 4 – 13, Order VI: 1) Whenever misrepresentation, fraud, breach of trust, willful default or undue influence are pleaded in the pleadings, particulars with dates and items should be stated. 2) The object of pleading is to bring the parties to a trial by concentrating their attention on the matter in dispute, so as to narrow the controversy to precise issues and to give notice to the parties of the nature of testimony required on either side in support of their respective cases. 3) The performance of a condition precedent need not be pleaded since it is implied in the pleadings. Non performance of a condition precedent, however, must be specifically and expressly pleaded. 4) No party can raise any ground of claim or contain any allegation of fact inconsistent with his previous pleadings. 5) A bare denial of a contract by the opposite party will be construed only as a denial of factum of a contract and not the legality, validity or enforceability of such contract. 6) Documents need not be set out at length in the pleading unless the words therein are materials

7) Where malice, fraudulent intention, knowledge or other condition of the mind of a person is material, it may be alleged in the pleading only as a fact without setting out the circumstances from which it is to be inferred. Such circumstances really constitute evidence in proof of material facts. 8) Whenever giving of notice to any person is necessary or a condition precedent, pleadings should only state regarding giving of which notice, without setting out the form or precise terms of such notice or the circumstances from which it is to be inferred, unless they are material. 9) Implied contracts or relations between persons may be alleged as a fact, and the series of letters, conversations and the circumstances from which they are to be inferred should be pleaded generally. 10)Facts which the law presumes in favour of a party or as to which the burden of proof lies upon the other side need not be pleaded. 11) Every pleading should be divided into paragraphs, numbered consecutively. Each allegation or averment should be stated in a separate para. 12)Dates, totals and numbers should be written in figures as well as in words. Alternative and Inconsistent Pleadings: (A) Alternative Pleadings: The expression “alternative” conveys a choice between two things. A party to a litigation may include in his pleadings two or more sets of facts and claim relief in the alternative. There is nothing in the code to prevent the paintiff from relying upon several different reliefs in the alternative or to prevent the defendant from raising several different defences in the alternative. Object: To obviate (remove) the necessity of another litigation and to decide the entire controversy in one litigation only. Examples: a) A suit for possession of property is maintainable on the basis of title or in the alternative on the basis of lease. b) A landlord can file a suit for eviction of his tenant on the ground of personal requirement or in alternative on the ground of non-payment of rent. c) Specific performance of contract/a prayer for damages in case the specific performance may not be granted.

(B) Inconsistent Pleadings: “Inconsistent” means mutually repugnant, contradictory, irreconciliable or destructive. One is contrary to other. Both, therefore cannot stand. Acceptance or establishment of one necessarily implies abrogation or abandonment of the other. Sriniwas vs. Mahabir Prasad, AIR 1951 SC: The Code does not prohibit a party from making two or more inconsistent sets of allegations. A plaintiff may rely on several different rights alternatively, although they may be inconsistent, so also a defendant may raise by his statement of defence, without leave of court, as many distinct and separate inconsistent defences as he may think proper. Examples: A claim of ownership or in the alternative a right of easement, or a plea of forgery or in the alternative a plea of execution under undue influence or fraud; or a plea of grant of perpetual tenancy or in alternative a plea of adverse possession can be taken. Conditions: a) All the inconsistent pleas sought to be raised by the party must be maintained at law. Thus, a plaintiff cannot pray for a declaration that a particular contract is void and in the alternative for the specific performance of the same contract since it is not permissible under Section 37 of Specific Relief Act, 1877. b) Where a party has taken up a definite stand once and the court has given a decision on that footing, he cannot be subsequently allowed to take an inconsistent position with regard to the same matter. Such inconsistent pleas are subject to Rule 16 of Order 6 which empowers the court to strike out any matter either in the plaint or in the written statement which may embarrass fair trial of the suit. Striking out pleadings: Rule 16, Order VI The court is empowered to strike out any pleading if it is unnecessary, scandalous, frivolous or vexatious, or tends to prejudice, embarrass or delay the fair trial of the suit or is otherwise an abuse of the process of the court. (Mohan vs. Damodar, AIR 1994 SC) Signing and verification of pleadings: Rules 14 – 15: Every pleading must be signed by one of the parties or their pleaders (Rule 14). Every pleading must be verified by the party or by one of the parties pleading or by some other person acquainted with the facts of the case. The person verifying the pleading must specify what paragraphs he verifies upon his

knowledge and what paragraphs he verifies upon information received by him and believed by him to be true. The verification must be signed on an affidavit by the person verifying and must contain the date on which and the place at which it was signed. The person verifying the pleading should also furnish an affidavit in support of his pleadings. (Rule 15) A defect in the matter of signing and verification of pleadings is merely an irregularity and can be corrected at a later stage of the suit with the leave of the court and a suit cannot be dismissed nor an order be passed against a party on the ground of defect or irregularity in signing or verification of plaint or written statement. (Bhikaji vs. Brijlal, AIR 1955 SC) Amendment of Pleadings: (Rules 17 – 18 of Order 6, CPC) (a) General: Material facts and necessary particulars must be stated in the pleadings and the decision cannot be based on the grounds outside the pleadings. Rule 17 of Order VI provides for amendment of pleadings. It reads as under: “The court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.” (b) Object: The object of the rule is that the courts should try the merits of the cases that come before them and should consequently allow all amendments that may be necessary for determining the real question in controversy between the parties provided it does not cause injustice or prejudice to the other side. (Vide: Patil vs. Patil, AIR 1957 SC) (c) Leave to amend when granted: Batchelor, J. in Kisandas vs. Vithoba, (1909) Bom LR observed. “All amendments ought to be allowed which satisfy the two conditions: (a) of not working injustice to the other side, (b) of being necessary for the purpose of determining the real question in controversy between the parties.” (d) Leave to amend when refused: Ganga Bai vs. Vijay Kumar, AIR 1974 SC – The power to allow an amendment is undoubtedly wide and may at any stage be appropriately exercised in the interest of justice. Generally, in the following cases, leave to amend will be refused by the court: 1) Leave to amend will be refused where the amendment is not necessary for

the purpose of determining the real question in controversy between the parties. 2) Leave to amend will be refused if it introduces a totally different, new and inconsistent case or changes the fundamental character of the suit or defence. (Vide: A. K. Gupta vs. Damodar Valley Corporation, AIR 1967 SC) 3) Where the effect of the proposed amendment is to take away from the other side a legal right accrued in his favour (Patil vs. Patil, AIR 1957 SC) 4) When it is made with mala fide intention, it will be refused. (e) At any stage of proceedings: It is not governed by any law of limitation. It may be granted at or after the trial, in First Appeal, or in Second Appeal or in Revision, or in the Supreme Court or even in execution proceedings. Proviso to Rule 17, as inserted by the Amendment Act of 2002, now restricts the power of the court and declares that the court should not allow such amendment after the commencement of the trial unless it comes to the conclusion that in spite of due diligence, the matter could not have been raised by the party before the commencement of the trial. (f) On such terms as may be just: Amendment will be allowed on payment of costs to the apposite party by the party amending his pleadings. It should be reasonable and not exemplary. (g) Revision: Section 115, CPS An order granting or refusing amendment is not a “decree” under Section 2 (2) nor an appealable order (under Section 104, CPS or Order 43, Rule 1) and as such no appeal lies against it. Such order, however, is a “case decided” and is subject to the revisional jurisdiction of the High Court. (h) Failure to amend: If a party, who has obtained an order for leave to amend, does not amend accordingly within the time specified for that purpose in the order or if no time is specified then, within 14 days from the date of the order, he shall not be permitted to amend after expiry of the specified time or of 14 days unless the time is extended by the court. [Material for additional reading]: (Courtesy: ICSI ) The present day system of pleadings in our country is based on the provisions of the Civil Procedure Code, 1908 supplemented from time to time by rules in that behalf by High Courts of the States. There are rules of the Supreme Court and rules by special enactments as well. For one, words ‘plaints’ and ‘complaints’ are nearly synonymous. In both, the expression of grievance is predominant. Verily,

when a suitor files a statement of grievance he is the plaintiff and he files a ‘complaint’ containing allegations and claims remedy. As days passed, we have taken up the word ‘Plaint’ for the Civil Court and the word ‘Complaint’ for the Criminal Court. Order 6, R. 1 of Civil Procedure Code (C.P.C.) defines ‘pleading’. It means either a plaint or a written statement.’ With the passing of time written pleadings supplanted archaic oral pleadings. When reduced to writing the scope of confusion, for obvious reasons, was made narrower. In this we find the object of a pleading which aims at ascertaining precisely the points for contention of the parties to a suit. The rules of pleading and other ancillary rules contained in the Code of Civil Procedure have one main object in view. It is to find out and narrow down the controversy between the parties. The function of pleadings is to give fair notice of the case which has to be met so that the opposing party may direct his evidence to the issue disclosed by them. Procedural law is intended to facilitate and not to obstruct the course of substantive justice. Provisions relating to pleadings in civil cases are meant to give each side intimation of the case of the other so that it may be met, to enable courts to determine what is really at issue between parties, and to prevent deviations from the course which litigation on particular causes of action must take (Ganesh Trading v. Motiram, AIR 1970 SC 480). Necessarily, a pleading is accurate only when stripped of verbosity it pinpoints succinctly the plaintiff’s grievances giving him the right to sue for the desired relief, or when it briefly sets out the defendant’s defence. When so done, there would be hardly any scope left to beat about the bush or to take the other party by surprise. Pleadings should be read not by the piecemeal but as a whole and should be liberally construed. Every venial defect should not be allowed to defeat a pleading, for a plaintiffs case should not be defeated merely on the ground of some technical defect in his pleadings provided he succeeds on the real issues of the case. It has been held: “Rigid construction of the law of pleadings was inappropriate and not calculated to serve the cause of justice for which the law of procedure was largely designed (AIR 1969 Del. 120). This should, of course, not be taken as an excuse for pleadings extremely lax and irrelevant, argumentative and inaccurate.” In construing the plaint, the court has to look at the substance of the plaint rather that its mere form. If, on the whole and in substance, the suitor appears to ask for some relief as stated, the court can look at the substance of the relief. “Pleadings have to be interpreted not with formalistic rigour but with latitude of awareness of low legal literacy of poor people.” Coming to construction of pleadings, Sarkaria, J held: “A pleading has to be read as a whole to ascertain its import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance

and not mere the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction of words, or change of its apparent grammatical sense. The intention of the party concerned is to be gathered, primarily, from the tenor and term of his pleading taken as a whole. (Udhav Singh v. Madhava Rao Scindia, AIR 1976 SC 744). Fundamental rules of pleadings The fundamental rule of pleadings is contained in provisions of O. 6, R. 2 of C.P.C. which enjoins: (1) “Every pleading shall contain only, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which they are to be proved. (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is conveniently, contained in a separate paragraph. (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.” To quote the Earl of Halsbury: “The sole object of it is that each may be fully alive to the questions that arc about to be argued in order that they may have an opportunity of bringing forward such evidence as may be appropriate to the issues.” The rules of pleading and other ancillary rules contained in the Code of Civil Procedure have one main object in view. It is to find out and narrow down controversy between the parties. “The pleadings are not to be considered as constituting a game of skill between the advocates. The) ought to be so framed as not only to assist the party in the statement of his case but the court in its investigation of the truth between the litigants”. The pleading shall contain: (i) facts only, then again, material facts; (ii) not law; (iii) not evidence; and (iv) immaterial facts to be discarded. (v) deficiency in pleading. What are material facts? Facts which gave the plaintiff his cause of action or the defendant his defence are, briefly speaking, material facts which he must prove or fail. It, therefore, stands to reason that facts which are not required to support the plaintiffs or the defendant’s case are not material. Whether a fact is material or not depends on the facts and circumstances of each case and can be held so or otherwise only in the context of relevant situation. Material facts: (i)

A pleading shall contain only material facts. Material facts are the entirety of facts which would be necessary to prove to succeed in the suit. Any fact which is not material should be

(ii)

(iii)

(iv)

avoided. Slackness in pleadings is unfair both to the court in which they are filed and also to the litigants. Material facts should be pleaded concisely. There is hardly any scope for showing literary genius in a pleading. Order 6, R. 2, C.P.C. should be read with O. 6, R. 4(c). When commencing a suit, the plaintiff is required to state only material facts, but such facts must constitute his cause of action as well. Absence of material facts will put the party to discomfiture, for no amount of evidence can be taken into consideration or regarded as sufficient in proof of any fact if specific mention of it is not made in the pleadings. Therefore, if a party omits to state a material fact, he will not be allowed to give evidence of the fact at the trial unless the pleading is amended under O. 6, R. 17, C.P.C. The rule is based mainly on principles that no party should be prejudiced by change in the case introduced by this method. No relief can be granted on facts and documents not disclosed in the plaint. It is often noticed that during the trial of a suit, some fact is sought to be introduced in evidence which does not find mention in the plaint or in the written statement, as the case may be. Then follows a heated parley when the court intervenes and rejects any attempt of introduction of any new fact. To avoid discomfiture, the pleading should be carefully drafted not to miss any material fact which may subsequently be found to be so material as to decide the fate of the case this or that way. Not law: In a pleading, there is no scope of pleading a provision of law or conclusion of law. It is the intention 286 PP-DA&P of the framers of the Code that a pleading should state facts, and the position as in law shall be inferred if such facts are capable of raising any legal inference. The pleading should present facts in such a way that those would irresistibly and spontaneously draw a legal inference. Herein lies the art of pleading. To find out the law is the duty of the court. Legal effects are not to be stated by the party. In India, as in England, the duty of a pleader is to set out the facts upon which he relies and not the legal inference to be drawn from them. Likewise the conclusion of law or a mixed question of law and fact should not be pleaded. Not evidence: In like manner evidence has to be avoided in pleadings. We have noticed the wording of the rule of O. 6, R. 2 to wit, a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be but not the evidence by which they are to be proved. A pleading

should not contain facts which are merely evidence to prove the material facts. (v)

Immaterial facts to be discarded: Unnecessary details are the facts which are not material and, therefore, should be discarded.

(vi)

Deficiency in pleading: Parties are related to each other and know everything. No element of surprise has been caused to the other party. Parties understood the case and led evidence accordingly. Deficiency in pleading would not affect case of the plaintiff [Kailash Chandra v. Vinod, AIR 1994 NOC 267 (MP)].

PLEADINGS IN PARTICULAR Plaint: The Plaint is meant as a statement in writing of the cause of action in a suit. It is a document by the presentation of which a civil suit is instituted. Section 26 of the code also clearly states that every suit is to be instituted by the presentation of plaint. Order 7 of the code specifies the provisions relating to the Plaint. Rule 1 of the order specifies the Particulars to be contained in plaint. The plaint shall contain the following particulars: 

the name of the Court in which the suit is brought;



the name, description and place of residence of the plaintiff;



the name, description and place of residence of the defendant, so far as they can be ascertained;



where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect;



the facts constituting the cause of action and when it arose;



the facts showing that the Court has jurisdiction;



the relief which the plaintiff claims;



where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and



a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of Court-fees, so far as the case admits.

Rule 2 of the order states that where the plaintiff seeks the recovery of money, the plaint shall state the precise amount claimed. But where the plaintiff sues – for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, or - for movables in the possession of the defendant, or - for debts of which the value he cannot estimate, after the exercise of reasonable diligence, the plaint shall state approximately the amount or value sued for. -

Rule 3 states that where the subject-matter of the suit is immovable property, the plaint shall contain – -

a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.

Rule 5 states that the plaint shall show that the defendant is or claims to be interested in the subject-matter, and that he is liable to be called upon to answer the plaintiff’s demand. Rule 6 states that if the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed. Rule 7 states that every plaint shall state specifically the relief which the plaintiff claims. Where the plaintiff seeks relief on distinct claims or cause of action upon separate and distinct grounds, they shall be stated separately and distinctly. Return of Plaint: Rule 10, 10A and 10B of the order contains the provisions relating Return of Plaint. The plaint shall at any stage of the suit be returned to be presented to the Court in which the suit should have been instituted, subject to the provisions of rule 10-A. Explanation: For the removal of doubts, it is hereby declared that a Court of appeal or revision may direct, after setting aside the decree passed in a suit the return of the plaint under this sub-rule. On returning a plaint the Judge shall endorse thereon – -

the date of its presentation and the date of its return,

-

the name of the party presenting it, and a brief statement of the reasons for returning it.

Rule 10A of the order states that Where, in any suit, after the defendant has appeared, the Court is of opinion that the plaint should be returned, it shall, before doing so, intimate its decision to the plaintiff. Where intimation is given to the plaintiff under as above, the plaintiff may make an application to the Court –  specifying the Court in which he proposes to present the plaint after its return,  praying that the Court may fix a date for the appearance of the parties in the said Court, and  requesting that the notice of the date so fixed may be given to him and to the defendant. Where an application is made by the plaintiff as above the Court shall, before returning the plaint and notwithstanding that the order for return of plaint was made by it on the ground that it has no jurisdiction to try the suit,  

fix a date for the appearance of the parties in the Court in which the plaint is proposed to be presented, and give to the plaintiff and to the defendant notice of such date for appearance.

Rule 10B specifies that where, on an appeal against an order for the return of plaint, the Court hearing the appeal confirms such order, the Court of appeal may while returning the plaint, direct plaintiff to file the plaint in the Court in which the suit should have been instituted, subject to the provisions of the Limitation Act, 1963, whether such Court is within or without the State in which the Court hearing the appeal is situated. Rejection of Plaint: Rule 11 of the order states the grounds on which the plaint may be rejected. Those grounds are as follows – 1. where it does not disclose a cause of action; 2. where the relief claimed is under-valued, and the plaintiff, on being required by the Court to so correct the valuation within a time to be fixed by the Court, fails to do so; 3. where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

4. where the suit appears from the statement in the plaint to be barred by any law; 5. where it is not filed in duplicate; 6. where the plaintiff fails to comply with the provisions of rule 9 [presenting copies of plaint] Provided that the time fixed by the Court for the correction of the valuation or supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff. Rule 12 states that where a plaint is rejected, the judge shall record an order with reasons to that effect. Rule 13 states that the rejection of the plaint on any of the grounds hereinbefore mentioned shall not of its own force preclude the plaintiff from presenting a fresh plaint in respect of the same cause of action.

PLAINT STRUCTURE: A suit is instituted by filing a plaint, which is the first pleading in a civil suit. It is a statement of the plaintiff’s claim and its object is simply to state the grounds upon, and the relief in respect of which he seeks the assistance of the court. Order VII of the Civil Procedure Code,1908 deals with plaint. As per Order VII, Rule 1 CPC, every plaint must contain the following things: (a) the name of the Court in which the suit is brought; (b) the name, description and place of residence of the plaintiff; (c) the name, description and place of residence of the defendant, so far as they can be ascertained; (d) where the plaintiff or the defendant is a minor or a person of unsound mind, a statement to that effect; (e) the facts constituting the cause of action and when it arose; (f) the facts showing that the Court has jurisdiction; (g) the relief which the plaintiff claims; (h) where the plaintiff has allowed a set-off or relinquished a portion of his claim, the amount so allowed or relinquished; and (i) a statement of the value of the subject-matter of the suit for the purposes of jurisdiction and of court fees, so far as the case admits. Where the plaintiff seeks the recovery of money, the plaint must state the precise amount claimed.

But where the plaintiff sue for mesne profits, or for an amount which will be found due to him on taking unsettled accounts between him and the defendant, or for movables in the possession of the defendant, or for debts of which the value he cannot, after the exercise of reasonable diligence, estimate, the plaint shall state approximately the amount or value sued for. Rule 2 If the subject-matter of the suit is immovable property, the plaint must contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint must specify such boundaries or numbers. Rule 3 When plaintiff sues as representative: As per Rule 4 where the plaintiff sues in a representative character the plaint shall show not only that he has an actual existing interest in the subject-matter, but that he has taken the steps (if any) necessary to enable him to institute a suit concerning it. Defendant’s interest and liability to be shown: The plaint must show that the defendant is or claims to be interested in subject-matter, and that he is liable to be called upon to answer the plaintiffs demand. Rule 5 Grounds of exemption from limitation law: In case the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint must show the ground upon which exemption from such law is claimed. The Court may permit the plaintiff to claim exemption from the law of limitation on any ground not set out in the plaint, if such ground is not inconsistent with the grounds set out in the plaint. Rule 6 Relief to be specifically stated Rule 7 says that every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement. Relief founded on separate ground: If the plaintiff seeks relief in respect of several distinct claims or causes of action founded upon separate and district grounds, they shall be stated as far as may be separately and distinctly. Rule 8 DESCRIPTION OF PARTIES: The description of parties in a plaint has had the only object of securing correct identification of the party suing and the party sued. There cannot be, for obvious reasons, any dogmatic rules as to what would constitute a proper description. It differs in varying circumstances. Generally speaking, father’s name, occupation and caste are sufficient description of an individual. It may include the age. When the description is defective, it is a case of misdescription. Misdescription of

parties can be corrected at any stage. In a suit by a joint family firm, the suit was instituted in the firm name. Amendment seeking addition of individual partners can be allowed as the case is one of misdescription. X suing as proprietor of ‘Todi Financing Corporation’— amendment sought by describing ‘X’ as partner of the Corporation and by impleading the retired partner as defendant should be allowed. (AIR 1979 Cal. 10) To sum up, if, however, imperfectly and incorrectly a party is designated in a plaint, the correction of the error is not the addition or substitution of the party but merely clarifies and makes apparent what was previously shrouded in obscurity by reason of the error or mistake. The question in such a case is one of the intentions of the party and if the court is able to discover the person or persons intended to sue or to be sued a mere misdescription of such a party can always be corrected provided the mistake was bona fide. WRITTEN STATEMENT: Written Statement, Set-Off & Counter Claim: The answer of the Plaint by the defendant is called as Written Statement. This provision is based on the principal of natural justice i.e. “Audi Alteram Partem” means “No man should be condemned unheard”. So, after the filing of plaint the defendant gets the chance to state his case. The term Set-Off is termed as a reciprocal acquittal of debts. Counter Claim comes into existence when the defendant in an action has the claim against the plaintiff which he might have asserted by bringing a separate suit, he may raise it in the existing suit as a counter-claim in his written statement after giving the facts on which it is based. It saves the time and reduces the expenditure of the parties and court. Order 8 of the code states the provisions relating Written Statement, Set-Off & Counter Claim. Rules 1 to 5, 7 to 10 of the order explains about written statement. Rules 6 & 7 explains about Set-Off and Rules 6A to 6G explains about the Counter Claim. Written Statement: All the general rules regarding pleadings apply to written statement. The written statement does not require any court fees. Time for presenting Written Statement: Rule 1 of the order states that the defendant shall present a written statement of his defence within 30 days from the date of service of summons on him. Provided that where the defendant fails to file the written statement within the said period of 30 days, he shall be allowed to file the same on such other day which shall not be later than 90 days from the date of service of summons, as may be specified by the Court, for reasons to be recorded in writing.

Production of Documents: Rule 1-A states that it is the duty of defendant to produce documents upon which relief is claimed or relied upon by him. Where the defendant bases his defence upon a document or relies upon any document in his possession or power, in support of his defence or claim for set-off or counter-claim, he shall enter such document in a List, and shall produce it in Court when the written statement is presented by him and shall, at the same time, deliver the document and a copy thereof, to be filed with the written statement. Where any such document is not in his possession or power, he shall, wherever possible, state in whose possession or power it is. New Facts must be specially pleaded: Rule 2 states that the defendant must raise by his pleading all matters which – 1. show the suit not to be maintainable, or 2. that the transaction is either void or voidable in point of law, and 3. all such grounds of defence as, if not raised, would be likely to take the opposite party by surprise, or 4. would raise issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment, performance, or facts showing illegality. Denial must be Specific: Rule 3 states that it shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages. Rule 4 specifies that where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. Specific Denial: Rule 5 states that every allegation of fact 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 taken to be admitted except as against a person under disability. Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission. (Sub-rule 1) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved. (Sub-rule 2) In exercising its discretion under the proviso to sub-rule (1) or under sub-

rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader. Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced. Defence etc. on distinct grounds: Rule 7 of the order states that where the defendant relies upon several distinct grounds of defence or set-off or counter-claim founded upon separate and distinct facts, they shall be stated, as far as may be, separately and distinctly. Rule 8 specifies that any ground of defence which has arisen after – -

the institution of the suit or the presentation of a written statement claiming a set-off or counterclaim

may be raised by the defendant or plaintiff, as the case may be, in his written statement. Rule 9 states about the Subsequent pleadings. No pleading subsequent to the written statement of a defendant other than by way of defence to set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit. But the Court may at any time require a written statement or additional written statement from any of the parties and fix a time of not more than thirty days for presenting the same. Rule 10 specifies about the 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, the Court shall pronounce judgment against him, or make such order in relation to the suit as it thinks fit and on the pronouncement of such judgment a decree shall be drawn up. Set-Off: 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 creditors of one another.” The set-off is of two kinds – a) Legal Set-off b) Equitable Set-off Rule 6 of this Order states that the Particulars of set-off shall be given in written statement. Where in a suit for the recovery of money the defendant claims to set-off against the plaintiff's demand any ascertained sum of money legally recoverable by him from the plaintiff, not exceeding the pecuniary limits of the jurisdiction of the Court, and both parties fill the same character as they fill in the plaintiff's suit, the defendant may, at the first hearing of the suit, but not afterwards unless permitted by the Court, present a written statement containing

the particulars of the debt sought to be set-off. Effect: The written statement shall have the same effect as a plaint in a cross-suit so as to enable the Court to pronounce a final judgment in respect both of the original claim and of the set-off; but this shall not affect the lien, upon the amount decreed, of any pleader in respect of the costs payable to him under the decree. The rules relating to a written statement by a defendant apply to a written statement in answer to a claim of set-off. Counter-Claim: Rule 6A to 6G of this Order contains the provisions relating to the Counter-Claim. Rule 6A states about the Counter-claim by defendant. A defendant in a suit may, in addition to his right of pleading a set-off under rule 6, set up, by way of counter-claim against the claim of the plaintiff, any right or claim in respect of a cause of action accruing to the defendant against the plaintiff either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired, whether such counter-claim is in the nature of a claim for damages or not. Provided that such counter-claim shall not exceed the pecuniary limits of the jurisdiction of the Court. Such counter-claim shall have the same effect as a cross-suit so as to enable the Court to pronounce a final judgment in the same suit, both on the original claim and on the counter-claim. The plaintiff shall be at liberty to file a written statement in answer to the counter-claim of the defendant within such period fixed by the Court. The counter-claim shall be treated as a plaint and governed by the rules applicable to plaints. 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. Rule 6C specifies about 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 counterclaim, 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. Rule 6D specifies about 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 yet be proceeded with. Rule 6E specifies about Default of plaintiff to reply to counter-claim. If the plaintiff makes default in putting in a reply to the counter-claim made by the defendant,

the Court may pronounce judgment against the plaintiff in relation to the counter claim made against him, or make such order in relation to the counter-claim as it thinks fit . Rule 6F specifies about Relief to defendant where counter-claim succeeds. Where in any suit a set-off or counter-claim is established as a 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. Rule 6G states that the rules relating to a written statement by a defendant shall apply to a written statement filed in answer to a counter-claim. Additional Information on Written Statement: It is incumbent on the defendant to file his defence in writing. If the defendant fails to file written statement, the court may pronounce judgment against him or may under O. 8, R. 10, make such order in relation to the suit as it deems fit. If the defendant has omitted to avail of his right to file a written statement at or before the first hearing, the court can extend the time for filing it, in exercise of its discretion, if the circumstances so warrant. The rule has to be worked in a manner so as to advance justice (Mehar Chand v. Suraj Bhan, AIR 1971 Punj 435). Requirement of Written Statement When the defendant appears and files a written pleading by way of defence, his pleading should conform to all the general rules of pleading laid down in the preceding paras. A subsequent pleading filed by the plaintiff, either 288 PP-DA&P in reply to a defendant’s claim of set off, or with leave of the court, in answer to defendant’s pleas in defence, is also called a “written statement” (also called Replication or Rejoinder). All the rules relating to defendant’s written statement apply, mutatis mutandis to such written statement of the plaintiff also. Considerations before Drafting a Written Statement Before proceeding to draft a written statement, it is always necessary for a pleader to examine the plaint very carefully and to see whether all the particulars are given in it and whether the whole information that he requires for fully understanding the claim and drawing up the defence is available. If any particulars are wanting, he should apply that the plaintiff be required to furnish them before the defendant files his written statement. If he cannot make a proper defence without going through such particulars and/or such documents referred to in the plaint, and that the defendant is not in possession of such copies, or the copies do not serve the required purpose, the defendant should call upon the plaintiff to grant him inspection of them and to permit him to take copies, if necessary, or, if he thinks necessary, he may apply for discovery of documents. If he thinks any allegation/allegations in the plaint is embarrassing or scandalous, he should apply to have it struck out, so that he may not be required to plead those allegations. If there are several defendants, they may file a joint defence, if they have the same defence to the claim. If their defences are different, they should file separate written statements, and if the defences are not only different but also

conflicting, it is not proper for the same pleader to file the different written statements. For instance, if two defendants, executants of a bond, are sued on the bond, and their plea is one of satisfaction, they can file a joint written statement. If the plaintiff claims limitation from the date of certain acknowledgement made by one defendant and contends that the acknowledgement saves limitation against the other also, the defendants may file separate written statements. In a suit on a mortagagedeed executed by a Hindu father, to which the sons are also made parties on the ground that the mortgage was for a legal necessity, if the sons want to deny the alleged legal necessity, they should not only file a separate defence from their father’s but should also preferably engage a separate pleader. (1) Formal Portion of Written Statement: A written statement should have the same heading and title as the plaint, except that, if there are several plaintiffs or several defendants, the name of only one may be written with the addition of “and another” or “and others”, as the case may be. The number of the suit should also be mentioned after the name of the court. After the name of the parties and before the actual statement, there should be added some words to indicate whose statement it is, e.g., “written statement on behalf of all the defendants” or “written statement on behalf of defendant No. 1”, or “written statement on behalf of the plaintiff in reply to defendant’s claim for a set off” or “written statement (or replication) on behalf of the plaintiff filed under the order of the court, dated……………….” or “written statement on behalf of the plaintiff, filed with the leave of the court”. The words “The defendant states….…….” or “The defendant states as follows” may be used before the commencement of the various paragraph of the written statement but this is optional. No relief should be claimed in the written statement, and even statements such as that the claim is liable to be dismissed should be avoided. But when a set off is pleaded or the defendant prefers a counter-claim for any excess amount due to him, a prayer for judgment for that amount in defendant’s favour should be made. (2) Body of the Written Statement: The rest of the written statement should be confined to the defence. Forms of Defence: A defence may take the form of i) a “traverse”, as where a defendant totally and categorically denies the plaint allegation, or that of ii) “a confession and avoidance” or “special defence”, where he admits the allegations but seeks to destroy their effect by alleging affirmatively certain facts of his own, as where he admits the bond in suit but pleads that it has been paid up, or that the claim is barred by limitation, or that of iii) an objection in point of law” (which was formerly called in England “a demurrer”), e.g., that the plaint allegations do not disclose a cause of action, or that the special damages claimed are too remote. Another plea may sometimes be taken which merely delays the trial of a suit on merits, e.g., a plea that the hearing should be stayed under Section 10, C.P.C., or that the suit has not been

properly framed, there being some defect in the joinder of parties or cause of action and the case cannot be decided until those defects are removed. These pleas are called (a) “dilatory pleas” in contradistinction to the other pleas which go to the root of the case and which are therefore known as (b) “peremptory pleas” or “pleas in bar”. Some dilatory pleas are not permitted in pleadings, but must be taken by separate proceedings. Others may either be taken in the written statement under the heading “Preliminary Objections”, or by a separate application filed at the earliest opportunity, as some pleas, such as that of a mis-joinder and non-joinder, cannot be permitted unless taken at the earliest opportunity (O. 1, R. 7 and 13). A defendant may adopt one or more of the above forms of defence, and in fact he can take any number of different defences to the same action. For example, in a suit on a bond he can deny its execution, he can plead that the claim is barred by limitation, he can plead that, as no consideration of the bond is mentioned in the plaint, the plaint does not disclose any cause of action, he can plead that the bond being stated to be in favour of two persons the plaintiff alone cannot maintain the suit. He can as well plead one form of defence to one part of the claim, and another defence to another part of it. He can take such different defences either jointly or alternatively, even if such defences are inconsistent. But certain inconsistent pleas such as those which depend for their proof, on entirely contradictory facts, are generally not tenable. A ground of defence, which has arisen to the defendant even after the institution of the suit, but before the filing of his written statement, may also be raised (O.8, R.8). All defences which are permissible should be taken in the first instance, for, if the defendant does not take any plea, he may not be allowed to advance it at a later stage, particularly when it involves a question of fact. How to Draft a Written Statement When the defendant relies on several distinct grounds of defence or set off, founded upon separate and distinct facts, they should be stated in separate paragraphs (O.8, R.7), and when a ground is applicable, not to the whole claim but only to a part of it, its statement should be prefaced by words showing distinctly that it is pleaded only to that part of the claim, thus: “As to the mesne profits claimed by the plaintiff, the defendant contends that, etc.” or “As to the price of cloth said to have been purchased by the defendant, the defendant contends that, etc.” When it is intended to take several defences in the same written statement, the different kinds of defences should be separately written. It is convenient to adopt the following order for the several pleas: i. Denials. ii. Dilatory pleas. iii. Objections in point of law. iv. Special defence (pleas in confession and avoidance). v. Set off.

All admissions and denials of facts alleged in the plaint should be recorded in the first part of the written statement and before any other pleas are written. If a defendant wishes to add an affirmative statement of his own version to the denial of a plaint allegation, or to add anything in order to explain his admission or denial, it is better and more convenient to allege the additional facts along with the admissions or denial, than to reserve them until after the admissions or denials have been recorded. If there are some defences which are applicable to the whole case and others which apply only to a part of the claim, the former should preferably be pleaded before the latter. Drafting of Reply/Written Statement Important Considerations At the time of drafting the reply or written statement, one has to keep the following points in mind:i. One has to deny the averment of the plaint/petition which are incorrect, perverse or false. In case, 290 PP-DA&P averment contained in any para of the plaint are not denied specifically, it is presumed to have been admitted by the other party by virtue of the provisions of Order 8, Rule 5 of the Code of Civil Procedure. It must be borne in mind that the denial has to be specific and not evasive (Order 8, Rule 3 & 4 CPC) [1986 Rajdhani Law Reporter 213; AIR 1964 Patna 348 (DB), AIR 1962 MP 348 (DB); Dalvir Singh Dhilowal v. Kanwaljit Singh 2002 (1) Civil LJ 245 (P&H); Badat & Co v. East India Trading Co. AIR 1964 SC 538]. However, general allegation in the plaint cannot be said to be admitted because of general denial in written statement. [Union v. A. Pandurang, AIR 1962 SC 630.] ii. If the plaint has raised a point/issue which is otherwise not admitted by the opposite party in the correspondence exchanged, it is generally advisable to deny such point/issue and let the onus to prove that point be upon the complainant. In reply, one has to submit the facts which are in the nature of defence and to be presented in a concise manner. [Syed Dastagir v. T.R. Gopalakrishnan Setty, 1999 (6) SCC 337.] Attach relevant correspondence, invoice, challan, documents, extracts of books of accounts or relevant papers as annexures while reply is drafted to a particular para of the plaint; The reply to each of the paras of the plaint be drafted and given in such a manner that no para of the plaint is left unattended. The pleadings are foundations of a case. [Vinod Kumar v. Surjit Kumar, AIR 1987 SC 2179.] After reply, the same is to be signed by the constituted attorney of the opposite party. If the opposite party is an individual, it could be signed by him or his constituted attorney or if the opposite party is a partnership firm, the same should be signed by a partner who is duly authorised under the Partnership Deed, because no partner has an implied authority to sign pleadings on behalf of the partnership firm by virtue of Section 22 of the Indian Partnership Act, 1932.

In case of a body corporate, the same could be signed by any Director, Company Secretary, Vice-President, General Manger or Manager who is duly authorised by the Board of Directors of the company because any of the aforesaid persons per se are not entitled to sign pleadings on behalf of the body corporate. [Order 29 of Code of Civil Procedure.] It may be noted that if the plaint or reply is not filed by a duly authorised person, the petition would be liable to be dismissed [Nibro Ltd . v. National Insurance Co. Ltd., AIR 1991 Delhi 25; Raghuvir Paper Mills Ltd. v. India Securities Ltd. 2000 Corporate Law Cases 1436]. However, at the time of filing of petition, if the pleadings are signed by a person not authorised, the same could be ratified subsequently. [United Bank of India v. Naresh Kumar, AIR 1997 SC 2.] The reply/written statement is to be supported by an Affidavit of the opposite party. Likewise, the Affidavit will be sworn by any of the persons aforesaid and duly notorised by an Oath Commissioner. The Affidavit has to be properly drawn and if the affidavit is not properly drawn or attested, the same cannot be read and the petition could be dismissed summarily. [Order 6, Rule 15 CPC]. The court is bound to see in every case that the pleadings are verified in the manner prescribed and that verifications are not mere formalities. The reply alongwith all annexures should be duly page numbered and be filed alongwith authority letter if not previously filed. At the time of filing of reply, attach all the supporting papers, documents, documentary evidence, copies of annual accounts or its relevant extracts, invoices, extracts of registers, documents and other relevant papers. It may be noted that if any of the important points is omitted from being given in the reply, it would be suicidal as there is a limited provision for amendment of pleadings as provided in Order 6, Rule 17 CPC, and also the same cannot be raised in the Affidavit-in-Evidence at the time of leading of evidence. Because if any point has not been pleaded in the pleadings, no evidence could be led on that point. General rule is that no pleadings, no evidence. [Mrs. Om Prabha Jain v. Abnash Chand Jain, AIR 1968 SC 1083; 1968 (3) SCR 111.] If a party is alleging fraud, undue influence or mis-representation, general allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice, however, strong the language in which they are couched may be, and the same applies to undue influence or coercion. [Afsar Shaikh v. Soleman Bibi, AIR 1976, SC 163; 1976 (2) SCC 142]. While pleading against fraud or mis-representation, party must state the requisite particulars in the pleadings. [K Kanakarathnam v. P Perumal, AIR 1994 Madras 247.] It is well settled that neither party need in any pleadings allege any matter of fact which the law presumes in his favour or as to which the burden of proof lies upon the other side unless the same has first been specifically denied. [Order 6, Rule 13 CPC; Sections 79 and 90 of Indian Evidence Act.]

In every pleading, one must state specifically the relief which the party is claiming from the court or tribunal or forum. While framing the prayer clause, one should claim all possible relief as would be permissible under the pleadings and the law [Order 7, Rule 7 CPC]. The general principle is that the relief if not prayed for, will not be allowed. [R Tiwary v. B Prasad, AIR 2002 SC 136.] 1. INTERLOCUTORY APPLICATION: “Interlocutory” means not that decides the cause but which only settles some intervening matter relating to the cause. After the suit is instituted by the plaintiff and before it is finally disposed off, the court may make interlocutory orders as may appear to the court to be just and convenient. The power to grant Interlocutory orders can be traced to Section 94 of C.P.C. Section 94 summarises general powers of a civil court in regard to different types of Interlocutory orders. The detailed procedure has been set out in the Schedule I of the C.P.C which deals with Orders and Rules. Interlocutory orders may take various shapes depending upon the requirement of the respective parties during the pendency of the suit. Applications for appointment of Commissioner, Temporary Injunctions, Receivers, payment into court, security for cause etc. Original Petition Suits are filed to lodge money claims in civil courts working under District Courts while petitions are filed in High Courts which are above District Courts seeking some directions against the opposite party; mostly the Government. There is no legal term like original suit or original petition. The suit which is initially filed in the first court for the first time is referred as original suit. Petitions are Writ Petitions, Arbitration Petitions, Miscellaneous Petitions etc. & not the original petition. After judgement in suit or petition, if any aggrieved party challanges it then it is by filing appeal in the higher court which is ordinarily called as Appeal but often in some court it is termed as Letters Patent Appeal (LPA) & as Special Leave Petition (SLP) in Supreme Court. Affidavit An affidavit being a statement or declaration on oath by the deponent is an important document and the consequences of a false affidavit are serious. Therefore, great care is required in drafting it. A Court may, at any time, for sufficient reason order that any particular fact or facts may be proved by affidavit or that the affidavit of any particular witness may be read at the hearing, provided that the Court may order the deponent to appear in person in Court for cross-examination. Affidavits to be produced in a Court must strictly conform to the provisions of order XIX, Rule 1 of the Code of Civil Procedure, 1908 and in the verification it must be specified as to which portions are being sworn on the 292 PP-DA&P basis of personal knowledge and which, on the basis of information received and believed to be true. In the latter case, the source of information must also be disclosed.

The following rules should be remembered when drawing up an affidavit: (1) Not a single allegation more than is absolutely necessary should be inserted;

(2) The person making the affidavit should be fully described in the affidavit; (3) An affidavit should be drawn up in the first person; (4) An affidavit should be divided into paragraphs, numbered consecutively, and as far as possible, each paragraph should be confined to a distinct portion of the subject; (5) Every person or place referred to in the affidavit should be correctly and fully described, so that he or it can be easily identified; (6) When the declarant speaks of any fact within his knowledge he must do so directly and positively using the words “I affirm” or “I make oath and say”; (7) Affidavit should generally be confined to matters within the personal knowledge of the declarant, and if any fact is within the personal knowledge any other person and the petitioner can secure his affidavit about it, he should have it filed. But in interlocutory proceedings, he is also permitted to verify facts on information received, using the words “I am informed by so and so” before every allegation which is so verified. If the declarant believes the information to be true, he must add “and I believe it to be true”. (8) When the application or opposition thereto rests on facts disclosed in documents or copies, the declarant should state what is the source from which they were produced, and his information and belief as to the truth of facts disclosed in such documents; (9) The affidavit should have the following oath or affirmation written out at the end: “I swear that this my declaration is true, that it conceals nothing, and that no part of it is false”. or “I solemnly affirm that this my declaration is true, that it conceals nothing and that no part of it is false”. Any alterations in the affidavit must be authenticated by the officer before whom it is sworn. An affidavit has to be drawn on a non-judicial Stamp Paper as applicable in the State where it is drawn and sworn. An affidavit shall be authenticated by the deponent in the presence of an Oath Commissioner, Notary Public, Magistrate or any other authority appointed by the Government for the purpose. (10) Affidavits are chargeable with stamp duty under Article 4, Schedule I, Stamp Act, 1899. But no stamp duty is charged on affidavits filed or used in Courts. Such affidavits are liable to payment of Court fee prescribed for the various Courts. Specimen Affidavit of Creditor in proof of his debt in Proceeding for the Liquidation of a Company

IN THE (HIGH) COURT OF………………………………………… The matter of the Indian Companies Act, 1956. And The matter of the liquidation of…………………… Company Limited. I, A.B., aged………… years, son of Shri…………… resident of……………………, do hereby on oath (or on solemn affirmation) state as follows: 1. That the abovenamed company was on the…………… day of………………, 2013, the date of the order for winding up the same, and still is justly and truly indebted to me in the sum of Rupees……………………… (Rs……………………) only in account of (describe briefly the nature of the debt). 2. That in proof of the aforesaid debt I attach hereto the documents marked A, B and C. 3. That I have not, nor have any person or persons by my order or to my knowledge or belief for my use, received the aforesaid sum of Rupees……………… or any part thereof, or any security or satisfaction for the same or any part thereof except the sum or security (state the exact amount of security). 4. That this my affidavit is true, that it conceals nothing and no part of it is false. Sd/- A.B. Dated…………………… Deponent Verification I, the abovenamed deponent, verify that the contents of paragraphs 1 to 4 of this affidavit are true to my personal knowledge. Sd/- A.B. Dated…………………… I, ................ ………………………………………… S/o…………………………………………............... R/o………………………………………..………………………… declare, from a perusal of the papers produced by the deponent before me that I am satisfied that he is Shri A.B. Sd/-…………………… Solemnly affirmed before me on this…………………… day of…………………… 2013 of…………………… (time) by the deponent. Sd/-…………………… (Oath Commissioner) EXECUTION PETITION: Application for Execution Execution of decree Application for execution of a decree shall be made by a holder of a decree who desires to execute it to the appropriate court which passed it or to the officer appointed in this behalf. In case the decree has been sent to another court than the application shall be made to such court or the proper officer thereof. Application for execution of a decree may be either 1) Oral; or 2) Written.

Oral Application: Where a decree is for payment of money the court may on the oral application of the decree holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgement debtor, prior to the preparation of a warrant if he is within precincts of the court. Written Application: Every application for the execution of a decree shall be in writing save as otherwise provided sub-rule (1) (above) signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquinted with the facts of the case, and shall contain in a tabular form the following particulars, namely : (a) the No. of the suit; 294 PP-DA&P (b) the name of the parties; (c) the date of the decree; (d) whether any appeal has been preferred from the decree; (e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree; (f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results; (g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross decree, whether passed before or after the date of the decree sought to be executed; (h) the amount of costs (if any) awarded; (i) the name of the person against whom execution of the decree sought; and (j) the mode in which the assistance of the court is required, whether–

(i) by the delivery of any property specifically decreed; (ii) by the attachment or by the attainment and sale, or by the sale without attachment, of any property; (iii) by the arrest and detention in prison of any person; (iv) by the appointment of a receiver; otherwise, as the nature of the relief granted may require. The court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree. Some High Courts in different States have framed additional rules in this regard may also be taken care by the draftsman or the executing lawyer.

Representative Suit: Representative Suit means a suit – -

filed by one or more persons on behalf of themselves and other having the same interest in the suit, or defended by one or more persons on behalf of themselves and others having the same interest in the suit.

To attend the court for a single suit either to institute suit or to defend it, where there are several persons, it require too much expense, time and inconvenience. So, the code has made this provision with the object that one person may represent the whole, time and expense of the court as well as of the parties may be reduced and it also leads the quick disposal of the proceedings. Rule 8 of Order 1 of the code states the detailed provisions relating to the Representative Suit. Where there are numerous persons having the same interest in one suit – a) one or more of such persons may, with the permission of the court, sue or be sued, or may defend such suit, on behalf or, for the benefit of, all persons so interested; b) the court may direct that one or more of such persons may sue or be sued; or may defend such suit, on behalf of, or for the benefit of, all persons so interested. The Court shall, in every case where a permission or direction is given as above, at the plaintiff’s case give notice of the institution of the suit to all persons so interested, either – - by personal service, or, - where, by reason on the number of persons of any other cause such service is not reasonably practicable, by public advertisement, as the court may in each case direct. Any person on whose behalf, or for whose benefit, a suit is instituted, or defended, as above, may apply to the court to be made a party to such suit. No part of the claim in any such suit shall be abandoned under sub-rule (1) [Abandonment of suit by plaintiff], and no such suit shall be withdrawn under subrule (3) of rule 1 [Permission to plaintiff to withdraw suit with liberty to institute fresh suit] of order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that order [Compromise of Suit], unless the Court has given, at the plaintiff’s expense, notice to all persons so interested in the manner specified as above.

Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the court may substitute in his place any other person having the same interest in the suit. A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or whose benefit, the suit is instituted, or defended, as the case may be. Explanation: For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.

UNIT IV APPEARANCE AND NON-APPEARANCE OF PARTIES

Sections 27 to 30 of the code and Order 5 of the code contain the provisions relating to the Issue and Service of Summons. Section 27 of the code states that where a suit is duly instituted, a summons may be issued to the defendant to appear and answer the claim on such day not beyond Thirty days from the date of the institution of the suit. Section 28 of the code states that where the defendant resides in another State then summons is to be issued as per the rules in force in that State. If the language of the summons is different than translation of the record – -

In Hindi, if language of the court is Hindi, or In Hindi or English where the language of the record is other than Hindi or English.

Issue of Summons: Rule 1 of Order 5 states that when a suit has been duly instituted, a summons may be issued to the defendant to appear and answer the claim and to file the written statement of his defence, if any, within thirty days from the date of service of summons o that defendant. Provided that no such summons shall be issued when a defendant appeared at the presentation of plaint and admitted the plaintiff’s claim. Provided further that where the defendant fails to file the written statement within thirty days, he shall be allowed to file it on such other day, which shall not be later than ninety days from the date of service of summons. The defendant to whom summons is issued may appear – - in person, or - by a pleader duly instructed and able to answer all material questions relating to the suit - by a pleader accompanied by some person able to answer all such questions. Every such summons shall be signed by the judge or such office as he appoints, and shall be sealed with the seal of the Court. Rule 2 states that every summons shall be accompanied by a copy of plaint. Where the court sees reason to require personal appearance of the defendant, it may order him to appear in person on the day specified therein. No party shall be ordered to appear in person unless resident within – - local limits of the court’s ordinary original jurisdiction, or - without such limits but at a place less than 50 or (where there is railway or steamer communication or other established public conveyance for

5/6th of the distance between the place where he resides and the place where the court is situate) less than 200 miles distance from the court house. The summons shall contain the direction regarding whether the summons is for – - the settlement of the issues, or - for the final disposal of the suit. Service of Summons: Rule 9 to 20 of the code specifies the modes of service of summons. The code specifies three modes of service of summons. Those are – a) Personal Service b) Substituted Service 1) Personal Service: Rule 9 to 19 of Order 5 of the code specifies the modes of service of summons by Personal Service. a) Rule 9 states that where the defendant resides within the jurisdiction of the Court in which the suit is instituted, or – has an agent resident within that jurisdiction who is empowered to accept the service of the summons, the summons shall be – - delivered or sent either to the proper officer to be served by him or - one of his subordinates or - to such courier services as are approved by the Court The services of summons may be made – -

-

by delivering or transmitting a copy thereof by Registered Post Acknowledgment Due, addressed to the defendant or his agent empowered to accept the service or by Speed Post or by such Courier Services as are approved by the High Court or by any other means of transmission of documents (including Fax Message or Electronic Mail Service) provided by the rules made by the High Court.

Provided that the service of summons under this sub-rule shall be made at the expenses of the plaintiff. When an acknowledgment or any other receipt purporting to be signed

by the defendant or his agent is received by the Court or postal article containing the summons is received back by the Court with an endorsement to the effect that the defendant or his agent had refused to take delivery of the postal article containing the summons or had refused to accept the summons when tendered or transmitted to him, the Court issuing the summons shall declare that the summons had been duly served on the defendant. b) Rule 9-A states that the Court may, in addition to the service of summons under rule 9, on the application of the plaintiff, permit such plaintiff to effect service of such summons on such defendant and shall, in such a case, deliver the summons to such plaintiff for service. c) Rule 10 states that service of the summons shall be made by delivering or tendering a coy thereof signed by the Judge or such officer as he appoints in this behalf, and sealed with the seal of the court. d) Rule 11 states that where there are more defendants than one, service of the summons shall be made on each defendant. e) Rule 12 states that service of the summons shall be made on the defendant in person if it is practicable, unless he has an agent empowered to accept service.

f) Rule 13 states that whenever the defendant do not reside within the local limits of the jurisdiction of the Court, service of summons on any manager or agent, who personally carries on such business or work shall be deemed good service. g) Rule 14 states that where in a suit to obtain relief respecting, or compensation for wrong to, immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property. h) Rule 15 states that where the defendant is absent from his residence at the time when the service of summons and he has no agent empowered to accept service of the summons service may be made on any Adult member of the family, whether male or female, who is residing with him. A servant is not a member of the family. i) Rule 16 states that where the serving officer delivers or tenders a copy of the summons to the defendant personally, or to an agent or other person on his behalf, he shall require the signature of the person to whom the copy is so delivered or tendered to an acknowledgment of service endorsed on the original summons.

Rule 18 states that the serving officer shall endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating – the time when and the manner in which the summons was served and – the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons, in all cases in which the summons has been served under rule 16. j) Rule 17 states that where the defendant or his agent or such other person as aforesaid – - refuses to sign the acknowledgment, or - where the serving officer, after using all due and diligence, cannot find the defendant, and there is no agent empowered to accept service, nor any other person on whom service can be made, the serving officer shall Affix a copy of the summons on the Outer Door or some other Conspicuous Part of the House in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did so, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. Rule 19 states that where a summons is returned as above, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit. 2) Substituted Service: Rule 20 of Order 5 of the code states the provisions relating to the Substituted Service of the summons. Substituted service of summons is used when the defendant intentionally avoids the service of summons. At such time the court orders service of summons by using this mode. It is last way to serve the summons. Where the Court is satisfied that – - there is reason to believe that the defendant is keeping out of the way for the purpose of avoiding service, or - that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof –

- in some conspicuous place in the Court-house, and - also upon some conspicuous part of the house (if any) in which the defendant is known to have last resided or carried on business or personally worked for gain, or in such other manner as the Court thinks fit. Where the Court acting as above orders service by an Advertisement in a Newspaper, the newspaper shall be a Daily Newspaper circulating in the locality in which the defendant is last known to have actually and voluntarily resided, carried on business or personally worked for gain. Service substituted by order of the Court shall be as effectual as if it had been made on the defendant personally. Where service is substituted by order of the Court, the Court shall fix such time for the appearance of the defendant as the case may require.

Effects of appearance and non-appearance: (legalviewsofsourav.blogspot.in) Appearance and non-appearance is a major issue to settle a dispute. Because, mere appearance or non- appearance may determine the result of the suit. The provisions of the Code of Civil Procedure, 1908 are based on a general principle that, as far as possible, no proceeding in a court of law should be conducted to the detriment of any party in his/her absence[1]. It is the duty of the concern party to appear before the trial court at a due time. Otherwise, the result may turn reverse to the non-appeared party. However, if the suit is determine at that date for the lacking of non-appearance of a party, the affected party may have a chance to revive the suit by following the provisions of The Code of Civil Procedure, 1908. Actually, Order-IX of the Code of Civil Procedure, 1908 enumerates the provision of consequence(s) of appearance and non-appearance of parties in a civil litigation. Especially, Order- IX, rule- 2 enumerates the consequence of failure of deposit of process fees by the plaintiff; rule- 3 & 4 provides the consequence of non-appearance of both (Plaintiff & Defendant) parties. Rule- 8, 9, 9A enumerates the consequences of non-appearance of Plaintiff and lastly rule6, 13 & 13A deals with the provision of non-appearance of Defendant. Lets us discuss all these three one by one.

Connotation of the word appearance: The word “appearance” has a well-recognised meaning and means appearance in person or through advocate for conducting a case[2]. So, appearance may be by a party in person or by an advocate or by a party in person along with his advocate[3]. Appearance” by a pleader within the meaning of Order IX does not, as if appearance by a party in person means mere presence of the court; it means “appearance by a pleader” duly instructed an able to answer all material questions relating to suit[4]. Appearance of the parties: Rule 1 of Order IX deals with the provision of appearance of the parties. On the day fixed in the summons for the defendant to appear and answer, the parties shall be in attendance at the Court-house in person or by their respective pleaders, and the suit shall then be heard unless the hearing is adjourned to a future day fixed by the Court. Rule 1 requires the parties to the suit attend the Courthouse in person or by their respective pleaders on the day fixed in the summons for the defendant to appear. So the rule relates to the appearance of the first hearing of the suit.[5] Thus, it is not sufficient for them to take any course, short of appearance. It is not sufficient for the defendant to send a letter to the court or for his advocate merely to file a Vokalatnama, while remaining absent[6]. Dismissal of the suit for the lacking of process fee by the plaintiff: If the plaintiff is failed to deposit process fees to the court within the stipulated time stipulated by the court, then the suit may dismiss[7] as per rule- 2 of the said Order. As per the language of the Code the provision is: “Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the courtfee or postal charges, if any, chargeable for such service, or failure to present copies of the plaint as required by rule 9 of Order VII, the Court may make an order that the suit be dismissed: Provided that no such order shall be made, if, notwithstanding such failure, the defendant attends in person or by agent when he is allowed to appear by agent on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent”.

Consequences of non-appearance by the plaintiff: On the date of peremptory hearing, if the plaintiff not appears but the defendant appears then the suit will dismiss under O- 9, r- 8. (The rule said: “Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates to the remainder”.)

i) ii)

i)

ii)

Remedies: If a suit is dismissed under Order- 9 or 3 then the plaintiff has two-fold options to revive his dismissed suit. Those are as follows: Filing a fresh suit before the competent court, if the suit is not bar by law and The Plaintiff may files a petition under O-9, R- 4. (The Rule- 4 is: “Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for [such failure as is referred to in rule 2], or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit”.) This petition under O-9, R- 4 is one type of Misc. case. The case should be filed within 30 days from the date of cancellation of such suit as per Art. 162 of the Limitation Act. However, after the expire of that 30 days the case mat be filed by virtue of Sec. 5 of the Limitation Act. The phrase “Sufficient cause” mentioned in sec. 5 of the mentioned law means the cause, which is beyond the control of the alleged person. It may an act of God or a mere man made disaster. Where there are concurrent remedies are available the duty of the concern lawyer is to choice the best one for the benefit of the party. If the suit is, dismiss under O- 9, r- 8; then the plaintiff have two concurrent remedies: He may file a petition by swearing an affidavit to the concern court within 30 days from the date of such dismissal along with a fees not more than 1000Tk. and He may file a fresh suit.

Consequence of non-appearance by the defendant: On the date of peremptory hearing, if the plaintiff is present but the defendant not present then the suit will decreedex-parte as per O-9, r- 6. (The rule is: “(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing, then[(a)] When summons duly served-if it is proved that the summons was duly served, the Court may make an order that the suit shall be heard ex pane.] (b) When summons not duly served-if it is not proved that the summons was duly serve, the Court shall direct a second summons to be issued and served on the defendant; (c) When summons served but not in due time-if it is proved that the summons was served on the defendant, but not in sufficient time to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to future day to be fixed by the Court, and shall direct notice of such day to be given to the defendant. (2) Where it is owing to the plaintiffs' default that the summons was not duly served or was not served in sufficient time, the Court shall order the plaintiff to pay the costs occasioned by the postponement”.) Proceedings under Order- 9, rule 9A is a special type of Litigation and there is no scope of condonation of delay. A Misc. case must be file before the trial court. If a Misc. case under O-9, r- 4 is dismissed, the remedy is revision and if a misc. case under O- 9, r- 9 (“(1) Where a suit is wholly or partly dismissed under rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hearing, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit. and shall appoint a day for proceeding with suit. (2) No order shall be made under this rule unless notice of the application has been served on the opposite party”.) is dismissed then the plaintiff files an appeal because it is an appeal able order and it is called as Misc. Appeal. Order- 43, r1(a-w)provides the list of appeal able order. If the filed misc. case is granted, then whether opposite party can file appeal against such order is not clear by law, that’s why this type of matter deal by revision, because where there is no appeal there is a provision of revision. Remedies: If an ex parte decree is passed against the defendant then the defendant has to take five types of action against such decision among them three is most vital. These are: i)

In accordance with O- 9, r- 13A defendant has to file a petition by swearing an affidavit within 30 days to the trial court to set aside the decision with

ii)

iii) iv) v)

a fine not more than Tk. 3000. Defendant can get this opportunity once as per the provision of law, As per O-9, r- 13 he may apply for setting aside the ex parte decree. In this case, the defendant shall prove sufficient case but in former case, a defendant need not prove sufficient cause for non-appearance, He may file an appeal under Sec. 96 of CPC. No appeal can continue in compromise decree but an appeal may file against ex parte decree, The defendant may file a review petition before the same court under O- 47, r- 1, Sec. 114 of CPC and The defendant may file an independent suit for cancellation of the decree as per Sec. 42 & 39 of the Specific Relief Act. Application for set aside ex-parte decree: Rule 13 as follows: “In any case in which a decree is passed ex parte against a defendant, he may apply to the Court by which the decree was passed for an order to set it aside; and if he satisfies the Court that the summons was not duly served, or that he was prevented by any sufficient cause from appearing when the suit was called on for hearing, the Court shall make an order setting aside the decree as against him upon such terms as to costs, payment into Court or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit; Provided that where the decree is of such a nature that it cannot be set aside as against such defendant only it may be set aside as against all or any of the other defendants also”. Rule 13 deals with setting aside ex-parte decree passed against the defendant. Whereas the remedies by way of appeal and review is available to any person against whom a decree is passed, the remedy provided by this rule can be available of only by the defendant for whose default of appearance an exparte decree is passed. “Sufficient cause” has not been defined anywhere in the Code. It is a question of fact. It is determine by the fact and circumstances of each case. Consequences of non-appearance of both the parties (plaintiff & defendant): On the date of peremptory or final hearing if both, the parties (Plaintiff & Defendant) absent from the hearing then the suit may dismiss according to O- IX, rule- 3. The rule said: “Where neither party appears when the suit is called on for hearing, the Court may make an order that the suit be dismissed”.

COMMISSIONS (SECTIONS 75 – 78, ORDER 26) Sometimes, a witness may be examined by the commission because he cannot attend the court. However, where a party accused of fraud seeks to examine himself on commission, the court may refuse to issue a commission since the opportunity of noting his demeanour may be lost. The power, however, should not be exercised on the ground that witnesses is a man of rank or having social status. Section 75 – 78 deals with the powers of the court to issue commissions and the detailed provisions have been made in Order 26. Section 75 enacts that a court may issue a commission: 1) to examine any witness 2) to make local investigation 3) to examine accounts 4) to make partitions 5) to hold scientific investigation 6) to conduct sale of a property 7) to perform any ministerial act 8) for any other appropriate purpose because Section 75 is not exhaustive but illustrative.  Section 76 lays down that a commission may be issued to any court (not being High Court), situated in any other state, and having jurisdiction in the place where the person to be examined resides. The court receiving such a commission duly executes it, by examining such a person and return it to the issuing court along with the evidence taken.  The evidence taken on a commission shall form part of the record. It shall, however, not the consent of the party against whom it is offered, unless: a) the person, who gave the evidence, is beyond the court's jurisdiction, or dead or unable from sickness or infirmity to attend the court, or exempted from personal appearance in court, or is a government servant, or b) the court in its discretion dispense with the proof of any of such circumstances i.e. notwithstanding proof that the cause for taking such evidence by commission ceased at the time of reading the same. (Rule 8)  The commissioner does not perform any judicial function. The commissioner is deemed to be a civil court, however, he is not a judge, and is, therefore, incompetent to impose any penalty. However, the commissioner may summons and procure the attendance of parties/witnesses and examine them, call for an examine documents, enter upon a land, etc. or proceed ex-parte. (Rule 16 – 18, Order 26)

 The commissioner must take down the question, the answer, the objections (except objection on the ground of privilege, which must be decided by the court) and the name of the party. The answer taken by the commissioner cannot be read in evidence without court's order. The commissioner cannot decide the dispute between the parties.

 The report of a commission is not conclusive; if a party has objection, it can move to the court. If the report is incomplete, the court can issue another commission.  An order refusing appointment of a commission is appealable.

 The provisions of a 26 are also to apply to proceedings in execution of a decree or order. The expenses of a commission are to be paid by the party at whose instance the commission is issued.  Section 78 says that the provisions relating to commission are also apply to:1) Commission issued by the courts where CPC does not apply. 2) The Courts outside India but under the authority of Central Government 3) The commissioner issued by a foreign court. RECEIVER (ORDER 40) The term Receiver is not defined in code. But the general meaning of the term is, ‘Receiver is an indifferent person appointed by the Court to collect and receive the rents, profits of land or personal estate, which it does not seem reasonable to the Court that either party should collect and receive.” The main object behind appointment of receiver is the protection or preservation of property for the benefit of persons who have an interest in it until the suit is decided by the court. Section 94 of the Code states that to prevent the ends of justice from being defeated the Court has the power to appoint a receiver of any property and enforce the performance of his duties by attaching and selling his property. Order 40 of the code lays down the rules governing the appointment of a receiver, his duties and remuneration etc.

Appointment of Receiver: Rule 1 of order 40 states that if it appears to the Court to be just and convenient, it may –    

Appoint a Receiver of any property whether before or after the decree; Remove any Person from the possession or custody of the property; Commit the property to the possession, custody or management of the receiver; and Confer upon the receiver, all such powers, as to bringing and defending suits and for the realisation, management, protection, preservation and improvement of the property, the collection and disposal of such rents and profits, and the execution of documents, as the owner himself has, or such of those powers as the Court thinks fit.

Remuneration of Receiver: Rule 2 of Order 40 provides that the remuneration shall be fixed by the Court for the services of the receiver. Remuneration must not exceed the income of the estate on which the receiver is appointed. Duties of Receiver: Rule 3 of Order 40 deals with the duties of receiver. Every receiver so appointed shall –    

furnish such security (if any) as the Court thinks fit, duly to account for what he shall receive in respect of the property; submit his accounts at such periods and in the such form as the Courts directs; pay the amount due from him as the Court directs; or be responsible for any loss occasioned to the property by his wilful default or gross negligence.

Rule 4 empowers the court where a receiver – a)

fails to submit his accounts at such periods and in such form as the Court directs, or

b)

fails to pay the amount due from him as the Court directs, or

c)

occasions loss to the property by his wilful default or gross negligence,

it may direct his property to be attached and may sell such property, and may apply the proceeds to make good any amount found to be due from him or any loss occasioned by him, and shall pay the balance, if any, to the receiver. Liabilities of Receiver: a) Receiver is personally liable for the breach of contract for sanction of Court has not been obtained.

b) A receiver cannot delegate his powers to another. c) Whether receiver is guilty of wilful default or gross negligence, his personal property can be attached. (Rule 4) d) When a Receiver has to compromise an action in another Court in which he is a party as such, he can only do so with the sanction and approval of the Court which appointed him. e) A receiver has no power to purchase property over which he is appointed as receiver. Powers of Receiver: Clause (d) of Rule 1 of Order 40 of the code confers various powers on the receiver. Those are – a) Bringing and defending suits, b) For the realisation, management, protection, preservation and improvement of the property, the collection and disposal of rents and profits, and the execution of documents, as the owner himself has, or c) Such of those powers as the Court thinks fit. d) Power to receiver remuneration 

A “receiver” is an impartial person between the parties to a cause, appointed by the court (Section 94) to receive and preserve the property (immovable or movable) or fund in litigation pendente lite, when it does not seen reasonable to the court that either party should hold it. It is protective relief. Krishna Kumar vs. Grindlays Bank, AIR 1991 SC: It is one of the harshest remedies as it deprives the opposite party the possession of property before a final judgment is pronounces. Thus, it should not be lightly resorted to.  Where it appears to the court to be just and convenient, it may appoint a receiver (before or after the decree) of any property [Rule 1 (a)], and remove any person from the possession/custody of the property. A receiver is an officer/representative of the court and he functions under its discretion.  The appointment of a receiver is a discretionary power of the court. The power to appoint under Order 40 is, however, subject to the controlling provisions of Section 94, and is to be exercised for preventing the ends of justice being defeated. The court can appoint a receiver not only on the application of a party to the suit, but any person who is interested in the preservation of property. The court can also do so in its own motion.  The court may confer upon the receiver any of the following powers; to institute and defend suits; to realise, manage, protect etc. the property; to

collect, apply and dispose of the rents/profits; to execute documents; etc. [Rule 1 (d)]  A receiver cannot sue or be sued for acts done in his official capacity by a third party without the leave of the court. Property in the hands of receiver cannot be attached without court's leave. Since he is custodia legis, any obstruction/interference by anyone with his possession without the court's leave is interference with the court's proceedings and is liable for contempt of court.  The court has inherent power to remove the receiver in cases when he does not comply with the orders of the court or abuses his power or authority.  A collector may be appointed as a receiver in cases where the property in question is land paying revenue to the Government. (Rule 5)

ARREST AND ATTACHEMNT BEFORE JUDGEMENT (SECTION 95, ORDER 38) (A) Arrest before Judgement (Order 38, Rule 1 – 4) A. General: Generally, attachment and arrest is made under Order 21 after the decree has been passed. Order 38 lays down an exception. B. Object: The object of these provisions (Order 38) is to protect the interests of the plaintiff for enjoying the fruits of decree which may be passed in his favour. C. Grounds: Where at any stage of suit, the court is satisfies, either by affidavit or otherwise, (a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the court, or to obstruct or delay the execution of any decree that may be passed against him – a. has absconded or left the local limits of the jurisdiction of the court, or b. is about to abscond or leave the local limits of the jurisdiction of the court, or c. has disposed of from the local limits of the jurisdiction of the court his property or any part thereof, or (b) that the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delay in execution of any decree that may be passed against the defendant in the suit. D. Arrest: If the grounds are present, the court may issue a warrant for arrest of the defendant and may force him to furnish security of such amount as may be sufficient to satisfy the proposed decree in favour of plaintiff. In case, the defendant fails to furnish the security, the court may put him in civil prison. E. Conditions: 1) Bona-fide and unimpeachable claim of the plaintiff 2) Real danger of defendant is disposing of property or absconding from the jurisdiction of the court. 3) This order cannot be issued before the presentation of plaint by the plaintiff. (Chand Mull vs. Purushottam, AIR 1926 Mad) F. Where arrest before judgment not allowed [Section 16 (a) to (d), CPC]: In following four circumstance, no arrest may be made before judgment:

1) Suit for recovery of immovable property. 2) Suit for partition of immovable property. 3) Suit for sale, foreclosure or redemption of mortgaged property/charge upon immovable property, and 4) Suits for the determination of any right in immovable property. G. Arrest on insufficient grounds (Section 95): Compensation to the defendant up to Rs. 50,000/- but must not exceed the pecuniary jurisdiction of the court. H. Period of detention (Order 38, Rule 4): a) For an amount up to Rs. 50/- Maximum period = 6 weeks b) Above Rs. 50/Maximum period = 6 months

(B) Attachment before judgment (Order 38, Rule 5 – 12) A. Object: Sardar Govindrao vs. Devi Sahai, AIR 1982 SC: The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if mode would be satisfied. B. Grounds (Rule 5, Order 38): satisfaction of court that: 1) The defendant is about to dispose of the whole or any part of his property with intent to obstruct or delay the execution of any decree that may be passed against him. 2) He is about to remove the whose or any part of his property from the local limits of the jurisdiction of the court. C. Order of court: If the court is satisfied that any of the above conditions is satisfied, the court may order the defendant to furnish security for a sum which may be sufficient to satisfy the proposed decree of the plaintiff. If the plaintiff fails to do it, the court may attach the property of the defendant. D. Principle: It is an extra-ordinary remedy and it must be exercised sparingly and strictly. Two conditions: 1) The court must be satisfied that the defendant is about to dispose of the whole or any part of his property; and 2) That the disposal is with the intension of obstructing or delaying the execution of any decree that may be passed against him.

Bharat Tobacco Co. vs. Maula Saheb, AIR 1980 Gujarat: The Gujarat High Court held that the jurisdiction under Order 38, Rule 5 should be exercised when the court is fully satisfied that the defendant is going to dispose of his property with intension to defeat the plaintiff's bona fide claim. Premraj vs. Maneck Gazi, Air 1951 Cal 156: The court must be satisfied that the defendant removing or disposing of his property with sale intension to defeat plaintiff's claim.  Rule 7 enacts that the attachment shall be made in the manner provided for the attachment of property in execution of decree.  The court cannot order the attachment or production of any agricultural produce in possession of an agriculturist.  Where the property is under attachment and a decree is passed subsequently in favour of the plaintiff, it is not necessary to apply for fresh attachment of the property in execution under Order 21, CPC. (Rule 11, Order 32)  An order of attachment will be withdrawn if the defendant furnishes security or the suit is dismissed (Order 38, Rule 9)  If the plaintiff had applied for attachment on insufficient grounds, the court may impose a fine up to Rs. 50,000/-. (Section 95)  Private alienation of property attached under Order 21 or 38 is void up to the limit of attachment (Section 64)

TEMPORARY INJUNCTION AND INTERLOCUTORY ORDERS (ORDER 39)

Injunction: An injunction is a judicial process whereby a party is required to do or refrain from doing, any particular act. It is in the nature of a preventive relief granted to because he feels possible future injury. Its main purpose is to preserve the subject-matter of the suit in status quo for the time being. Injunctions are of 2 kinds. One is Temporary and other is Permanent. Temporary Injunction is defined in Rules 1 to 5 of Order 39 of CPC. And Permanent Injunction is defined in sections 38 to 42 of Specific Relief Act. Section 94 of the code states that in order to prevent the ends of justice from being defeated the Court may grant a temporary injunction and in case of disobedience commit the person guilty to civil prison and also order that his property be attached and sold. When Temporary Injunction Granted: Rule 1 of Order 39 provides that where in any suit it is proved by affidavit or otherwise – a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defrauding his creditors, c) that the defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suit, the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property or dispossession of the plaintiff, or otherwise causing injury to the plaintiff in relation to any property in dispute in the suit as the Court thinks fit, until the disposal of the suit or until further orders. Injunction to Restrain Repetition or Continuance of Breach: Rule 2 states that in any suit for restraining the defendant from – - committing a breach of contract or - other injury of any kind, the Plaint may, at any time after the commencement of the suit, and either before or after judgment, Apply to the Court for a Temporary Injunction to restrain the defendant from committing the breach of contract or injury complained of.

The Court may by order grant such injunction, on such terms as to the duration of the injunction, keeping an account, giving security, or otherwise, as the Court thinks fit. Consequence of Disobedience or Breach of Injunction: In the case of –  

Disobedience of any injunction granted or other order made under rule 1 or 2 or Breach of any of the terms on which the injunction was granted or the order made,

the Court granting the injunction or making the order, may order –  

the property of the person to be attached, and may also order such person to be detained in the civil prison for a term not exceeding 3 months.

No attachment made under this rule shall remain in force for more than 1 year, at the end of which time, if the disobedience or breach continues, the property attached may be sold and out of the proceeds, the Court may award such compensation to the injured party and shall pay the balance, if any, to the party entitled thereto. [Rule 2A] Notice before Injunction: The Court shall in all cases before granting an injunction, direct notice of the application for the same to be given to the opposite party, except where it appears that the object of granting the injunction would be defeated by the delay. Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons and require the applicant – a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with – (i) a copy of the affidavit filed in support of the application; (ii) a copy of the plaint; and (iii) copies of documents on which the applicant relies, and b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent. [Rule 3] Time to Dispose of Application for Injunction: Rule 3A states that where an injunction has been granted without giving notice to the opposite party, the Court shall make an endeavour to finally dispose of the application within 30 days from the date on which the injunction was granted; and where it is unable so to do, it shall record its reasons for such inability. [Rule 3A]

Injunction may be discharged etc.: Rule 4 states that any order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order. Provided that if in an application, a party has knowingly made a false or misleading statement in relation to a material particular and the injunction was granted without giving notice to the opposite party, the Court shall vacate the injunction unless, for reasons to be recorded, it considers that it is not necessary so to do in the interests of justice. Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except  where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or  unless the Court is satisfied that the order has caused undue hardship to that party. Injunction to corporation: Rule 5 states that an injunction directed to a corporation is binding not only on the corporation itself, but also on all members and officers of the corporation whose personal action it seeks to restrain.

Ganga Briks Udyog vs. Jai Bhagwan, AIR 1982 All: It is not the plaintiff alone who can apply for an interim injunction. A defendant also may make an application for grant of an injunction against the plaintiff. Grounds (Order 39, Rule 1): 1) Where any property in dispute in a suit is in danger or being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree; or 2) Where a defendant threatens, or intends to remove or dispose of his property with a view to defrauding his creditors. 3) Where a defendant threatens to dispossess the plaintiff or otherwise cause injury to the plaintiff in relation to any property in dispute in the suits, or 4) Where a defendant is about to commit a breach of contract, or other injury of any kind; or 5) Where the court is of the opinion that the interest of justice so requires. Conditions: 1) Prime facie case in the favour of applicant.

2) Irreparable loss or injury to the applicant on refusal to grant injunction. 3) Balance of convenience in the favor of applicant. 4) Applicant's conduct fair and honest. Dalpat vs. Prahlad, AIR 1993 SC: The court has to exercise its sound judicial discretion in granting or refusing the relief of ad interim injunction pending the suit.  Interim injunction of maintaining status quo, against transfer of property, disposal of good, making construction, effecting recovery of dues, attachment of property, appointment of receiver or commission against prosecution etc., can be granted by a court.  Since the power can be exercised judicially and in the public interest, no interim injunction causing administrative inconvenience or resulting in public mischief should be granted. Thus, ordinarily no injunction should be granted against recovery of tax or octroi, enforcement of contractual rights and liabilities, transfer or suspension of employees, delaying election process, interfering with inquiry or investigation etc.  Where the case is not covered by Order 39, interim injunction can be granted by the court in exercise of inherent powers under Section 151 of the Code.  Notice must be given to the opposite party before granting injunction except where it appears that the object of granting the injunction would be defeated by delay. Ex-parte decree: Rule 3 of Order 39 requires the applicant to issue a notice to the opposite party before an injunction is granted. Though the court may grant it in exceptional circumstance.

Morgan Stanley vs. Kartick Das, (1995) SC: The Supreme Court indicated some points which must be considered before granting an ex-parte injunction:1) Where irreparable or serious mischief will ensue to the plaintiff; 2) Whether the refusal of ex-parte injunction would involve greater injustice than grant of it would involve. 3) The court will also consider the time at which the plaintiff first had notice of the act complained of so that the making of an improper order against a party in his absence is prevented. 4) The court will consider whether the plaintiff had acquiesced for some time, and in such circumstances it will not grant ex-parte injunction. 5) The court would expect a party applying for ex-parte injunction to show utmost good faith in making the application. 6) Even if granted, the ex-parte injunction would be for a limited period of time.

7) General principles like prima facie case, balance of convenience and irreparable loss would also be considered by the court. Appeal: An order granting to refusing to grant injunction is subject to appeal. [Order 43, Rule 1 (r)] Where an ex-parte relief is granted by the court and the application is not decided within 30 days, the aggrieved party may prefer an appeal against such an order. (Vankatasubbiah vs. Chellappan, AIR 2000 SC)  An order granting or refusing an injunction is a “case decided” within the meaning of Section 115 of the Code and, hence, a revision lies against such an order. Breach of injunction (Rule 2 A, Order 39): 1) Arrest and detention of the opponent in civil prison for 3 months. 2) Attachment of property for 1 year. 3) If disobedience or breach continues, the property attached may be sold and out of the proceeds, the court may award such compensation as it thinks fir to the injured party.  If the order for injunction is obtained on insufficient grounds, the court may award compensation up to Rs. 50,000/- under Section 95, CPC Interlocutory Orders (Order 39, Rule 6 – 10) Meaning: An interlocutory order is one which is made pending the cause and before a final hearing on the merits. An interlocutory order is made to secure some end and purpose necessary and essential to the progress of the suit, the generally collateral not connected with the final judgment. Amar Nath vs. Haryana, AIR 1977 SC: The term “interlocutory order” merely denotes orders of a purely interim or temporary nature which do not decide or touch the important rights or the liabilities of the parties. V.C. Shukla vs. State through CBI, AIR 1980 SC: An interlocutory order has to be construed in contradiction to or in contract with final order. It means not a final order but an intermediate order. It is made between the commencement of an action and the entry of the judgment.  Rules 6 to 10 of Order 39 mention certain interlocutory orders:1) Order to sale movable property which is subject to speedy natural decay and subject matter of suit. 2) Order directing appointment of receiver under Order 40 of CPC.

DEATH OF PARTY (ORDER 22)  Order 22 deals with the creation, assignment or devolution of interest during the pendency of suits and appeals, but not in execution proceedings (Rule 12). Such creation, assignment of devolution may arise in the following circumstances: 1) 2) 3) 4)

Death of a party (Rules 1 – 6); Marriage of a party (Rule 7); Insolvency of a party (Rule 8); Other circumstances (Rule 10);

Abatement of suit: Abatement implies a suspension or termination of proceedings in an action for want of proper parties or owing to a defect in writ of service. A cause or matter shall not be abated by the marriage, death or bankruptcy of any of the parties, if the cause of action survives, nor shall it abate by changes in title during the pendency of suit. Abatement of a proceeding takes place on its own force by passage of time. No specific order for abatement is envisaged under Order 22. This order is not applicable in write proceedings. Consequences of death of plaintiff/defendant:  Order 22, Rule 1 provided that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. Rule 11 provides that the word “plaintiff” shall be held to include an appellant, the word “defendant” a respondent, and the word “suit” an appeal.  “Right to sue” means the right to bring a suit asserting a right to the same relief which the deceased plaintiff asserted at the time of his death. The cause of action in the original and revived suit must be the same and not fresh cause of action can be imposed into revived suit. The suit filed in a “representative capacity” does not abate on the death of one of the plaintiffs. But in cases of personal actions, the right to use will not survive to or against his representatives. In these cases, the maxim actio personalis moritur cum persona (a personal action dies with the person) applies. This principle is to be found in Section 37 of Indian Contract Act and Section 306 of the Indian Succession Act, 1925. Cases in which right to sue services on death of parties: 1) A suit by a landlord against his tenant for the possession of the rented house after the death of the landlord; 2) A suit for rendition of accounts against a trustee where the trustee died 3) A suit for specific performance of the contract after the death of the

4)

plaintiff; A suit for partition of ancestral property by a coparcener after the death.

Where right to sue does not survive on death of parties: 1) 2) 3) 4) 5) 6)

A suit for damages for assault, personal injuries, or for malicious prosecution, or for defamation (i.e. tort). A suit for breach of contract of betrothal; A suit for dissolution of marriage. A suit for specific performance of a contract involving exercise of a special skill like a promise to point a picture; A suit for right to future maintenance; A suit for personal cause of action, such as the personal requirement of the premises by the landlord, must perish with the death of the plaintiff.

The procedure for bringing on record the legal representative of the deceased plaintiff/defendant: 1)

Where one of the several plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone; or 2) Where a sole surviving plaintiff dies and the right to sue survives. The court, on an application made in that behalf, shall make the legal representatives of the deceased plaintiff a party and proceed with the suit if no such application is made withing the prescribed period (i.e. withing 90 days of the death), the suit shall abate so far as the deceased plaintiff is concerned (Rule 3, Order 22). This rule does not apply where a plaintiff dies after the decree; the death must occur pending the suit Rule 4 similarly provides for in the case of a defendant.  Rule 4 (4) further provides that the court may, in its discretion, exempt a plaintiff from the necessity of substituting the legal representatives of a non-contesting defendant (who has failed to file the written statement or does not appear and contest the suit) and pronounce the judgment notwithstanding the death of such defendant. The provisions of Rules 3 and 4 are mandatory.  Rule 4 (5) of Order 22 provides that where the plaintiff was ignorant of the death of a defendant and could not, for that reason, make an application for the substitution of legal representative of such defendant within the prescribed period, and the suit-is abated, he (plaintiff) may make an application for the fact of such ignorance of the plaintiff.  The question that whether a particular person is legal representative of a deceased, is to be decided by the court. (Rule 5, Order 22)  If there is no legal representative of deceased plaintiff/defendant, the court may appoint Administrator General or an officer of the court.

Framing of Issues: 1. First Stage: Presentation of a plaint by plaintiff 2. Second Stage: Written statement by defendant 3. Third stage: Framing of issues a) Examination of parties by the court. (Order 10) b) After recording the admissions and denials, the court must direct the parties to opt for one of the modes of alternative dispute resolution specified under Section 89. c) Arbitration, conciliation, Judicial settlement, mediation. d) If the dispute is not disposed of, the court will try to determine the issues. e) Order 14, Rule 1: An issue is said to arise when a material proposition of fact or law is affirmed by one party and denied by the other party. Issues may be of three kinds

Issues of facts

Issues of law

Mixed issues of facts and law

Importance of issues: 1) Issues, and not the pleadings guide, the parties in the matter of leading evidence. 2) The court cannot refuse to decide the point on which an issue has been framed and evidence led, even if the point involved is not mentioned in the pleadings. 3) The court should not frame an issue which does not arise on the pleadings. 4) Issues must be confined to the material questions of fact or law (facta probanda), and not on subordinate facts or evidence by which material questions of fact or law are proved or disproved (facta probantia). 5) One issue should cover only one fact or law in dispute between the parties.

Preliminary issues which must be decided first (Order 14, Rule 2):

1) 2) 3) 4)

Court's jurisdiction i.e. pecuniary, territorial or relating to subject matter. Issues whether the suit is withing the period of limitation? A bar to the suit created by any law for the time being in force. Res-judicata? Or res-subjudice?

Material for framing issues (Rule 3, Order 14): 1) Allegations made on oath by the parties. 2) Allegations made in the pleadings or in answer to interrogatories 3) Documents produced by the parties. 4) The court may examine parties and the witnesses for the purpose of framing issues. It may adjourn the proceedings for 7 days. Omission to frame issues: Kamleshwaram vs. Subbarao, AIR 1963 SC: Mere omission to frame an issue is not necessarily fatal to the suit. If it caused injustice, the suit may be remanded for fresh trial. Examples of issues: 1) Whether the plaintiff proves that the defendant entered into an agreement to sell suit property to him for Rs. 10,00,000? 2) Whether the plaintiff proves that he paid a sum of Rs. 1.00.000 as earnest money to the defendant?

3) Whether the plaintiff proves that he was and is ready and willingly to perform his part of the contract? 4) Whether the defendant proves that the case of the plaintiff is totally false and got up?

5) To what relief, if any, the plaintiff is entitled to?

WITHDRAWAL AND COMPROMISE OF SUITS (ORDER 23) 1) Withdrawal of suits (Order 23, Rules 1 & 2) 2) Compromise of suits (Order 23, Rules 3, 3-A, 3-B Withdrawal of suit: Under Order 23, at any time after the institution of the suit, the plaintiff may as against all or any of the defendants abandon his suit or part of his claim [Rule 1 (1)]. However, the leave of the court is required where the plaintiff is a minor, etc. under Order 32. Withdrawal from suit: If the court is satisfied that a suit must fail by reason of some “formal defect”, or that there are sufficient grounds for allowing the plaintiff to institute a fresh suit, it may allow the withdrawal from suit with liberty to institute a fresh suit in respect of the subject matter of the suit or part of claim. [Rule 1 (3)]  The expression “formal defect” covers every kind of defect which does not affect the merits of a case. Thus, a misjoinder of parties or an erroneous valuation of the subject matter of a suit is formal defects.  Where a plaintiff withdraws a suit under Rule 1 (1) or withdraws from a suit without the permission of the court under Rule 1 (3), he shall be liable to costs and precluded from instituting a fresh suit against the same defendant in respect of the same subject matter. However, when there are several plaintiffs, the court cannot allow one of them to withdraw, unless the other co-plaintiffs consent to such withdrawal. So, if the court allows two out of five plaintiffs to withdraw (with liberty to file fresh suit) and the other three plaintiffs do not consent, the court acts without jurisdiction and the two plaintiffs will not be able to file a second suit in respect of the same subject matter.  If the plaintiff withdraws or abandons a suit and a defendant applies to be transposed as a plaintiff under Order 1, the court must, when considering such an application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants. (Rule 1 A)  In any fresh suit instituted on the permission granted under Rule 1, the plaintiff is bound by the law of limitation in the same manner as law if the first suit had not been instituted. (Rule 2)

Compromise of suit (Order 23, Rules 3, 3A, 3B): Where it is proved to the satisfaction of the court that a suit has been adjusted, wholly or in party, by any lawful agreement or compromise (in writing and signed by the parties), or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject matter of the suit, the court must order such agreement, compromise or satisfaction to be recorded, and then pass a decree accordingly as it relates to the parties in the suit. It does not matter that the subject matter of the agreement, etc. is the same as the subject matter of the suit. [Order 23, Rule 3]  Proviso to Rule 3 lays down that where it is alleged by one party and denied by the other that an adjustment or satisfaction has been arrived at, the court shall decide the question; but no adjournment to be granted unless the court thinks fit to grant it. An agreement or compromise which is void (under Sections 25, 26, 27, 28, 29, 30, Indian Contract Act, 1872) or voidable [under Sections 15, 16, 17, 18, 56 (1), 56 (2)] under Indian Contract Act shall not be deemed to be lawful within the meaning of this rule (Explanation to Rule 3)  No suit can be filed to set aside a decree on the ground that the compromise on which the decree is based was not lawful. (Rule 3 A)  No agreement or compromise in a representative suit can be entered into without the leave of the court, otherwise it shall be void. (Rule 3 B)  Nothing in Order 23 shall apply to any proceedings in execution of a decree or order. (Rule 4)

UNIT V SPECIAL SUITS SUITS BY OR AGAINST THE GOVERNMENT:

Section 79 to 82 and Order XXVII of the Civil Procedure Code, 1908 deal with procedure for investigation of suits by or against the government and public officers. However, these provisions only deal with the procedural rights and liabilities that are enforceable against the government and such persons. The substantive rights and liabilities to be followed are those as are provided by the Constitution of India. Courts in India are governed by procedural laws which govern the trails and the proceedings before them. While there are one sets of rulings which hold that procedure is only a hand-maid of justice and thus should not come into play to preclude a court from ensuring substantive justice, there are equal other sets of rulings which decree that parties not following procedures of the court are not entitled to relief. It is in the respect of the second line of decisions that we bring to you a recent decision of the Supreme Court which declares that a suit/claim would not be entertained in which Government was required to be made a party to the dispute and not having so done. Holding that it was essential to ensure that Government was made aware of the litigation by making it a party, the Supreme Court declared that procedural law clearly specifies the situation in which Government is required to be made a party and the law to this regard is settled that if the Government is not made a party, the litigation cannot be proceeded. Article 300 of the Constitution deals with legal proceedings by or against the Union of India or State and provides that in a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be; in the case of the Central Government, the Union of India and in the case of State Government, the State, which is suing or is being sued. The relevant Provisions: The Apex Court in Chief Conservator of Forests, Government of A.P. Vs. Collector, AIR 2003 SC 1805, has observed that the requirement of provision contained in Section 79 CPC as well as Order 27, Rule 1 CPC is not merely a procedural formality, but is essentially a matter of substance and of considerable significance whereby the special provision as to how the Central Government or the State Government may sue or be sued has been indicated. the authority to be named as plaintiff or defendant, as the case may be, shall be-

a)

in the case of a suit by or against the Central Government,[the Union

of India], and b)

in the case of a suit by or against a State Government, the State.

It has further been observed that in giving description of a party, the distinction between the mis-description or misnomer of party and mis-joinder and nonjoinder of a party suing or being sued has to be remembered and in case of misdescription of party, the Court at any stage of the suit permit correction the cause title so that the party before the Court is correctly described, and, such misdescription will not be fatal to the maintainability of the proceeding. However, in case of non-joinder of parties, the suit or proceeding will fail. The Apex Court in Secretary, Ministry of Works & Housing, Government of India and Ors. v. Mohinder Singh Jagdev, has observed that the Union of India can lay the suit and be sued under Article 300 of the Constitution in relation to its affairs and under Section 79 read with Order 27, Rule 1 CPC, in a suit, by or against Central Government, the authority to be named as plaintiff or defendant, as the case maybe, shall be the Union of India. However, in the said case, as the appeal was filed by the Secretary of the Department transacting its function on behalf of the Government as per the business rules framed under Article 77 of the Constitution, the same was treated to have been filed by the Union of India by holding that the nomenclature given in the cause title is not conclusive.

In a suit, the Central Government may sue or be sued as the Union of India and a State Government as the State. Section 80 provides that where a suit is to be instituted against the Government or any public official for any act purported to be done in his official capacity, the person filing the suit must give a notice of at least 2 months before filing the suit. The difference in case of a public official is that the suit must be instituted only for acts purported to be done by him in his official capacity. There is no stipulation in the section as regards suits instituted against the government. Any act purporting to be done in his official capacity includes illegal omissions as well. It covers future as well as past acts of such official. It means a series of acts and is applicable even in cases of misfeasance or nonfeasance. The act must be such as is done or would have been done in the normal course of his official duties. The notice must either be served on the person concerned or left at their office. The person entitled to receive the notice in such cases isa) Where a suit is instituted against the Central Government but not the Railway department, a Secretary to the Government. b) Where a suit is instituted against the Central Government and it relates to the Railway, the General Manager of Railways.

c) Where a suit is instituted against the Government of Jammu and Kashmir, the Chief Secretary to the Government. d) Where a suit is instituted against any other State Government, a Secretary to such Government or the Collector e)

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

The content of such notices has been specifically stated in the Code. The notice must state the cause of action, the name, description and place of residence of the plaintiff and the relief sought by him. It must be stated in the plaint that such a notice has been sent. The notice is not a mere formality. It is sent so that the government is given ample opportunity to decide on the legality of the issue with the help of its advisors and public money is not wasted. A Constitution Bench of this Court in The State of Punjab Vs. The Okara Grain Buyers Syndicate Ltd., AIR 1964 SC 669, held that if relief is sought against the State, suit lies only against the State, but, it may be filed against the Government if the Government acts under colour of the legal title and not as a Sovereign Authority e.g. in a case where the property comes to it under a decree of the Court. In Ranjeet Mal Vs. General Manager, Northern Railway, New Delhi, AIR 1977 SC 1701, this Court considered a case where the writ petition had been filed challenging the order of termination from service against the General Manager of the Northern Railways without impleading the Union of India. The Court held as under :“The Union of India represents the Railway Administration. The Union carries administration through different servants. These servants all represent the Union in regard to activities whether in the matter of appointment or in the matter of removal. It cannot be denied that any order which will be passed on an application under Article 226 which will have the effect of setting aside the removal will fasten liability on the Union of India, and not on any servant of the Union. Therefore, from all points of view, the Union of India was rightly held by the High Court to be a necessary party. The petition was rightly rejected by the High Court.” The same was reiterated in The State of Kerala v. The General Manager, Southern Railway, Madras, AIR 1976 SC 2538 In Kali Prasad Agarwala v. M/s. Bharat Coking Coal Limited, AIR 1989 SC 1530, while considering an issue whether the suit lands had vested, free from encumbrance in the State consequent upon the issuance of Notification under Section 3 of the Bihar Land Reforms Act, this Court did not entertain the case observing as under :“In our opinion, it is unnecessary to consider the first question and indeed it is not proper also to consider the question in the absence of the State which is a necessary party for adjudication of that dispute. The State of Bihar is not

impleaded as a party to the suit and we, therefore, refrain from expressing any opinion on the first question.” The provision of Section 80 as regards notice is mandatory and no exception must be made. Where however immediate relief is sought, the suit may be instituted without giving such notice and with the leave of the court. But, no relief shall be granted without giving the government or public official an opportunity to be heard. The Government or public official concerned may even waive the requirement of notice. However, where the court feels that no immediate relief is sought after hearing both parties, it may return the plaint to be presented after complying with the necessary requirements of notice. No suit instituted under this provision shall be dismissed on the ground that there is any error or defect in the notice where the notice mentions the name, description and place of residence of the plaintiff and substantially indicates the cause of action and the relief sought. For calculating the period of limitation as regards suits instituted against the government, the period of notice must be excluded.

In State Of Rajasthan vs Rikhabchand Dhariwal, AIR 1961 Raj 64 it was stated that whenever it is deemed necessary to implead the State or any one of its Departments as a defendant in a civil suit, it shall be mandatory to comply with the provision of Section 80 of the Civil Procedure Code. Yet again in Chief Conservator of Forests, Government of A.P. Vs. Collector, AIR 2003 SC 1805, the Court had drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person. Section 81 provides that where a suit is instituted against a public official for act(s) purported to be done in his official capacity, he shall not be arrested and his property shall not be attached, unless the same is for execution of a decree. Further, he cannot be called upon to attend the proceedings of the court where the court is of the opinion that such attendance would be a detriment to public service.

In Sangamesh Printing Press v. Chief Executive Officer, Taluk Development Board, (1999) 6 SCC 44, the State was not impleaded as a party before the Trial Court in a money recovery suit. The same was dismissed on the ground of nonimpleadment of necessary party. During appeal, an application was made under O. 1 R. 10 praying for impleadment of the State, however the High Court decided

the matter on merits without considering the same. This Court observed as under :

“Keeping in view the facts and circumstances of the case, we are of the opinion that the High Court should have decided the appellant’s application under Order 1 Rule 10 C.P.C. and, thereafter, proceeded to hear the appeal in question. Not having disposed of the application under Order 1 Rule 10 has caused serious prejudice to the appellant. We, therefore, set aside the judgment of the High Court and restore Regular First Appeal No 29 of 1987 to its file. The High Court should first deal with the application under Order 1 Rule 10 C.P.C. which is pending before it and then proceed to dispose of the appeal in accordance with law.” While considering the similar case in Chief Conservator of Forests, this Court accepted the submission that writ cannot be entertained without impleading the State if relief is sought against the State. This Court had drawn the analogy from Section 79 CPC, which directs that the State shall be the authority to be named as plaintiff or defendant in a suit by or against the Government and Section 80 thereof directs notice to the Secretary of that State or the Collector of the district before the institution of the suit and Rule 1 of Order XXVII lays down as to who should sign the pleadings. No individual officer of the Government under the scheme of the constitution nor under the CPC, can file a suit nor initiate any proceeding in the name and the post he is holding, who is not a juristic person. In Bal Niketan Nursery School v. Kesari Prasad, AIR 1987 SC 1970, this Court held that application for impleadment of a necessary party can be filed at any stage of proceeding provided the Court is satisfied that exceptional circumstances prevailing in the case, warrant the impleadment. Further, Section 82 provides that where a decree is passed against the Government or a public official, the same shall not be executed except where it remains unsatisfied for a period of 3 months from the date of passing of the decree. Such a decree shall be executed where it is passed by a court or any other authority and where the decree is capable of being executed as a decree under the CPC or any other law in force. PROVISIONS UNDER ORDER XXVII: Rule 1 provides that in case of a suit by or against the government, the plaint or written statement shall be signed by any person appointed by the government in this regard by way of a general or special order. The plaint or written statement shall be verified by a person appointed by the government and who is aware of the facts of the case. In State Of Punjab vs Amar Chand, AIR 1980 P H 318: In a suit against the Punjab Government by one of its employees, the InspectorGeneral of Police, Punjab, had signed the written statement filed on behalf of the

Government as a person authorised by notification for the purpose of O. 27, R. 1, Civil P. C. as the case related to the Police Department. An application was then moved on behalf of the Inspector-General of Police, Punjab that a Superintendent of his office who was a gazetted officer and was well conversant with the facts of the case, would appear in Court to assist the Court. This application was treated by the trial Court as an application for review of its order. The trial Court rejected this application and additionally observed that since the Inspector-General of Police, Punjab had signed the written statement and he was one of the persons who bad been notified for the purpose of R. 1 of O. 27, C.P.C., it shows that he was the only person who could appear for effecting a settlement in the case on behalf of the Government. Rule 2 provides that any person who is ex officio entitled to represent the government in judicial proceedings or is authorized by the government in this regard shall be the recognised agent who shall makes appearances, applications and do acts on behalf of the government. The court pointed out in Firm Mohanlal Ramchandra vs The Union Of India, AIR 1972 Raj 152. There are two distinct rules under Order 27 namely Rules 1 and 2. Under Rule 1 only a limited authority to sign and verify pleadings is given. It is only a person authorised to act without any such limitation who can present a memorandum of appeal. As per the Hon’ble scupreme court in State Of Uttar Pradesh v. Janki Saran Kailash Chandra, 1973 AIR 2071 it is hardly open to the State Government to plead that the District Government Counsel was not authorized to seek adjournment on its behalf for this purpose. It will be somewhat irrational and perhaps incongruous to permit the State, after having taken the benefit of this adjournment, to plead that the application for adjournment was not made on instructions and was unauthorized. To accede to the State Government the right to do so would clearly be unjust to the opposite party which could have rightfully objected to the adjournment, had there been any indication that the prayer was not being made on instructions from the State Government. Also, a recognized agent like the District Government Counsel can scarcely be considered to appear voluntarily in a case on behalf of the Government in the sense of being unauthorized by his client for the simple reason that he is authorized by virtue of statute to appear, act and make applications on behalf of the Government. Also in Rohtas Singh vs Commissioner, Agra, AIR 1997 All 278 under Order XXVII, Rule 2, CPC persons, being ex officio or otherwise authorized to act for the Government in respect of any judicial proceeding shall be deemed to be the recognised agents by whom appearances, acts and applications under CPC maybe made or done on behalf of the Government, under Rule 4 of Order XXVII CPC the Government pleader in any Court shall be the agent of the Government for the purpose of receiving processes against the Government issued by such Court. Under Rule 4 of Order III, CPC – No, pleader shall act for any person in any Court, unless he has been appointed for the purpose by such person and

every such appointment shall be filed in Court and shall be deemed to be in force until determined with the leave of the Court by a writing signed by the client or the pleader as the case may be and filed in Court, or until the client or the pleader dies, or until all proceedings in me suit are ended so-far” as regards the client. Thus, as per the above referred provisions of Civil Procedure Code once a counsel is engaged for the State he shall continue to remain authorised agent for the State until his engagement is determined by the client or pleader in writing with me leave of the Court, therefore, State Law Officers As per Rule 4, the government pleader shall be the agent of the government for receiving all court processes. In Mundrika Prasad Sinha v. State Of Bihar, 1979 AIR 1871 the Hon’ble Supreme Court stated that as per section 2(7) of the CPC, ‘Government Pleader’ includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader.” Manifestly, this is an inclusive definition and, read along with Order 27 Rule (4) and (8) B(c), clearly yields the inference that Government may have as many Government Pleaders as it likes to conduct its cases even as any client, who has a crowd of cases to be conducted, my engage a battery of lawyers. Government is in no worse position that an ordinary litigant and is not bound to encourage monopoly within the profession. Indeed, the root cause of the petitioner’s desire to corner all the litigation of the Government is that its policy of legal remuneration has no distributive bias nor socially sober ceiling. Some States have already adopted such a policy. Indeed, the State must evolve a policy in regard to its Law Officers which concedes to counsel freedom to recommend settlement of cases if they feel it just to do so and further practises distributive justice which preempts the need for adjournment because of absence of counsel and, lastly, sets a limit on the total fee payable for government work executed. Section 2(7) of the Code of Civil Procedure being an inclusive definition allows any number of Government pleaders. It vests no sole control on one Government pleader over others and Government is perfectly free to put a particular Government pleader in charge of particular cases. Each one of them is a Government Pleader and may depute other lawyers and exercise control over such surrogates. In this view, there is no error in the summary despatch deservedly given by the High Court to the writ petition whose main merit was daring novelty. It was further opined by the Madras High Court in V.K. Elayalwar vs The Registrar, (1970) 2 MLJ 343, that under Order 27, Rule 4, Civil Procedure Code, the Government Pleader is the agent of the Government for the purpose of receiving the process against the Government ” issued by such Court “. Obviously, the service of a copy by the petitioner upon the Government Pleader even before his writ petition is admitted and entertained by the Court cannot be

effective service within the meaning of Order 27, Rule 4, Civil Procedure Code, for it cannot be regarded as a process issued by the Court. According to Rule 5, for the purpose of fixing the date for the hearing, the court must have due regard to the communications made to the government, issue of instructions to the government pleader to appear, etc. Such time limit may be extended by the court but not beyond 2 months in aggregate. In pursuant with Rule 7, an extension may also be granted where a public official is the defendant and he takes leave from the court to make a reference to the government before he answers the allegations in the plaint. This is also because as per Rule 5A, in every suit against a public officer, the government is deemed to have been joined as a party.

It was also observed by the Supreme Court in Mundrika Prasad Sinha vs State Of Bihar: “I am clearly of opinion that having regard to the fact that the Government Pleader of this court is employed by the State on remuneration paid from the public exchequer and having regard to the various functions and duties to be performed by him in the due exercise of that office, most of which are of an independent and responsible character, the office must be held to be a public office within the scope of a quo warranto proceeding. I consider that the most useful test to be applied to determine the question is that laid down by Erle, J. in (1851) 17 QB 149. The three criteria are, source of the office, the tenure and the duties. I have applied that test and I am of opinion that the conclusion that the office is a public office is irresistible”. In this view, ordering about a Government Pleader is obnoxious but nothing savouring of such conduct is made out although we must enter a caveat that Governments under our Constitution shall not play with Law Offices on political or other impertinent considerations as it may affect the legality of the action and subvert the rule of law itself. After all, a Government Pleader and, in a sense, every member of the legal profession, has a higher dedication to the people.

Recommendation for amendment: In the same case The Central Law Commission went to the extent of recommending a new provision to be read as Order 27 Rule 5B. The Commission observed: “we recommend the insertion of the following rule:5-B(1) In every suit or proceeding to which the Government is a party or a public officer acting in his official capacity is a party, it shall be the duty of the Court in the first instance, in every case where it is possible to do so consistently with the

nature of the circumstances of the case, to make every endeavour to assist the parties in arriving at a settlement in respect of the subject-matter of the suit. 2) If in any such suit or proceeding, at any stage it appears to the court that there is a reasonable possibility of a settlement between the parties, the court may adjourn the proceeding for such period as it thinks fit, to enable attempts to be made to effect such a settlement. 3) The power conferred by sub-rule (2) is in addition to any other power of the court to adjourn the proceedings.” The relevance of these wider observations is that avoidable litigation holds out money by way of fees and more fees if they are contested cases and this lures a lawyer, like any other homo economics, to calculate income on a speculative basis, as this Government Pleader has done in hoping for a lakh of rupees. The Court may also, in any case in which the Government Pleader is not accompanied by any person on the party of the Government; who may be able to answer any material questions relating to the suit, direct the attendance of such a person.” In State Of Punjab vs Amar Chand Walia, AIR 1980 PH 318 it was held that a perusal of this rule would show that what it requires is a person who may be able to answer any material question relating to the suit that may be posed by the Court. These words do not warrant insisting of the Court on the presence of a particular person. The Court can require the presence of a person who is well conversant with the pacts of the case and would be able to assist the Court in effecting a settlement. Rule 8 states that where the government decides to take defence for acts done by a public official, the government pleader after having been authorized in this regard shall make an application to the court and the court shall cause his name to be entered into the register of civil suits. Where no such application is made by the government pleader on or before the date of hearing as fixed by the notice, the proceedings shall be deemed to be as between private parties. However, the public official in such case cannot be arrested or his property cannot be attached, except where it is for execution of a decree. In the matter of State of Rajasthan v. Chiranji Lal Agrawal, (1970 Raj LW 111) with reference to competency of the Government Advocate to present the appeal, it was Held by this Court that the provisions of Order 27, Rule 8, C.P.C. being in derogation of the ordinary law should be limited to the purposes expressly for impliedly indicated and cannot be extended beyond those purposes. This provision only enables the Govt. pleader to appear and defend public officers but this provision cannot enable the State to file an appeal on bahalf of the public officer. It was further held by this Court that the State is not entitled to contend that the decree having been varied, it is entitled to obtain certificate as a matter of right having regard to the valuation of the dispute for showing that the

appeal involves some substantial question of law and the second appeal was consequently dismissed. Later in Firm Mohanlal Ramchandra v. The Union Of India, AIR 1972 Raj 152, all that Rule 8-B lays down is that wherever the expressions “Government” and “Government pleader” occur in any rule of Order 27 they shall be read as “Central Government” and such pleader as the Central Government may appoint whether generally or specially for the purposes of this order. In Rules 1 and 2 of Order 27 only the expression “Government” occurs and in relation to the present proceedings this will be read as “Central Government”. The expression “Government pleader” does not occur in Rule 2. Therefore, it cannot be argued that every Government pleader who is authorized to appear on behalf of the Central Government is also authorized to act for the Central Government without any express authority in that behalf. The question which had arisen for consideration of learned Division Bench of this Court was regarding authority of the Asstt. Government Advocate to present the memorandum of appeal when he was not duly authorized by the department to do so with reference to interpretation of the provisions of Order 3, Rule 4(1) and (6) read with Order 27, Rule 8, C. P.C. in relation to any suit by or against the Central Government. A special appeal was preferred by the appellant against the judgment of learned single Judge of this Court in second appeal dismissing its suit for recovery of compensation which was decreed by the trial Court and the first appellate Court. The first contention on behalf of the appellant before this Court was that the preliminary objection was erroneously rejected by the learned single Judge. Reliance was placed on the provisions of Order 27, Rules 1, 2 and 8, C.P.C. It was consequently held by this Court that since a Government Advocate cannot act without a general or special authority in writing empowering him to do so and since he is not exempted from the requirements of Sub-rule (1) of Order 3, C.P.C. the then Addl. Advocate General of Rajasthan High Court had no authority to present the memorandum of second appeal in this Court, the second appeal was therefore, incompetent and was consequently dismissed. Pursuant to Rule 6, the court may even direct the attendance of any person who may be able to answer material questions as regards the matter on behalf of the government where such person doesn’t appear in court without the government pleader. No security is required to be furnished by the government or the public official. In Rohtas Singh vs Commissioner, Agra Division, AIR 1997 All 278, it was opined that the government officials against whom Contempt notices are issued should personally incur the expenses of contempt proceedings and only thereafter if they are honorably exonerated the amount spent may be reimbursed to them. It will naturally discover the tendency of flouting the Court orders by the Government officials.

As far as extending legal aid to such government officials to concerned the State Government may prepare a panel of lawyers to defend the government officials in contempt matters but it cannot include in that panel the Government Advocates, Additional Government Advocates, Deputy Government Advocates, Assistant Government Advocates public Prosecutors, Additional/Assistant Public Prosecutors Chief Standing Counsel, Additional Chief Standing Counsel, Standing Counsel or any other counsel who is continuing under engagement for the State. In case, such Stale Law Officers will be allowed to be included in that panel, the Government employees who are facing prosecution for corrupt practices may also demand similar protection from, the State. ( Courtesy: Legalindia.com- Article by Ms. Tripti Malhotra, Symbiosis law school ) SUITS BY OR AGAINST FIRMS AND PERSONS CARRYING ON BUSINESS IN NAMES OTHER THAN THEIR OWN (ORDER XXX) Suing of partners in name of firm: (1) Any two or more persons claiming or being liable as partners and carrying on business, in India may sue or be sued in the name of the firm (if any) of which such persons were partners at the time of the accruing of the cause of action, and any party to a suit may in such case apply to the Court for a statement of the names and addresses of the persons who were, at the time of the accruing of the cause of action, partners in such firm, to be furnished and verified in such manner as the Court may direct. (2) Where persons sue or are sued partners in the name of their firm under subrule (1), it shall, in the case of any pleading or other document required by or under this Code to be signed, verified or certified by the plaintiff or the defendant, suffice such pleading or other document is signed, verified or certified by any one of such persons. Disclosure of partners’ names: (1) Where a suit is instituted by partners in the name of their firm, the plaintiffs or their pleader shall, on demanding writing by or on behalf of any defendant, forthwith declare in writing the names and places of residence of all the persons constituting the firm on whose behalf the suit is instituted. (2) Where the plaintiffs or their pleader fail to comply with any demand made under sub-rule (1) all proceedings in the suit may, upon an application for that purpose, be stayed upon such terms as the Court may direct. (3) Where the names of the partners are declared in the manner referred to in sub-rule (1) the suit shall proceed in the same manner and the same consequences in all respects shall follow, as if they had been named as plaintiffs in the plaint.

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[Provided that all proceedings shall nevertheless continue in the name of the firm, but the name of the partners disclosed in the manner specified in sub-rule (1) shall be entered in the decree.] Service: Where persons are sued as partners in the name of their firm, the summons shall be served either— (a) upon any one or more of the partners, or (b) at the principal place at which the partnership business is carried on within India upon any person having, at the time of service, the control or management or the partnership business, there, as the Court may direct; and such service shall be deemed good service upon the firm so sued, whether all or any of the partners are within or without India: Provided that, in the case of a partnership which has been dissolved to the knowledge of the plaintiff before the institution of the suit, the summons shall be served upon every person within India whom it is sought to make liable. Rights of suit on death of partner: (1) Notwithstanding anything contained in section 45 of the Indian Contract Act, 1872 (9 of 1872) where two or more persons may sue or be sued in the name of a firm under the foregoing provisions and any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representative of the deceased as a party to the suit. (2) Nothing in sub-rule (1) shall limit or otherwise affect any right which the legal representative of the deceased may have: (a) to apply to be made a party to the suit, or (b) to enforce any claim against the survivor or survivors. Notice in what capacity served: Where a summons is issued to a firm and is served in the manner provided by rule 3 , every person upon whom it is served shall be informed by notice in writing given at the time of such service, whether he is served as a partner or as a person having the control or management of the partnership business, or in both characters, and, in default of such notice, the person served shall be deemed to be served as a partner. Appearance of partners: Where persons are sued as partners in the name of their firm, they shall appear individually in their own names, but all subsequent proceedings shall, nevertheless, continue in the name of the firm.

No appearance except by partners: Where a summons is served in the manner provided by rule 3 upon a person having the control or management of the partnership business, no appearance by him shall be necessary unless he is a partner of the firm sued.

Appearance under protest: (1) Any person served with summons as a partner under rule 3 may enter an appearance under protest, denying that he was a partner at an material time. (2) On such appearance being made, either the plaintiff or the person entering the appearance may, at any time before the date fixed for hearing and final disposal of the suit, apply to the Court for determining whether that person was a partner of the firm and liable as such. (3) If, on such application, the Court holds that he was a partner at the material time, that shall not preclude the person from filing a defence denying the liability of the firm in respect of the claim against the defendant. (4) If the Court, however, holds that such person was not a partner of the firm and was not liable as such that shall not preclude the plaintiff from otherwise serving a summons on the firm and proceeding with the suit; but in that event, the plaintiff shall be precluded from alleging the liability of that person as a partner of the firm in execution of any decree that may be passed against the firm.] Suits between co-partners: This Order shall apply to suits between a firm and one or more of the partners therein and to suits between firms having one or more partners, in common; but not execution shall be issued in such suits except by leave of the Court, and, on an application for leave to issue such execution, all such accounts and inquiries may be directed to be taken and made and directions given as may be just. Suit against person carrying on business in name other than his own: Any person carrying on business in a name or style other than his own name, or a Hindu undivided family carrying on business under any name, may be sued in such name or style as if it were a firm name, and, in so far as the nature of such case permits, all rules under this Order shall apply accordingly. Courtesy: Lawkam- Indian Law Database

SUIT BY OR AGAINST TRUSTEES AND ADMINISTRATERS ETC: 1. Representation of beneficiaries in suits concerning property vested in trustees, etc: In all suits concerning property vested in a trustee, executor or administrator, where the contention is between the persons beneficially interested in such property and a third person, the trustee, executor or Administrator shall represent the persons so interested, and it shall not ordinarily be necessary to make them parties to the suit. But the Court may, if it thinks fit, order them or any of them to be made parties. 2. Joinder of trustees, executors and administrators: Where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them: Provided that the executors who have not proved their testator's will, and trustees, executors and administrators outside 7[India], need not be made parties. 3. Husband of married executrix not to join: Unless the Court directs otherwise, the husband of a married trustee, administratrix or executrix shall not as such be a party to a suit by or against her.

SUITS BY OR AGAINST MINORS ANT) PERSONS OF UNSOUND MIND Section 147 and Order 32 of the code contains the provisions relating Suit by or against a Minor or a person of Unsound Mind. Indian Majority Act defines the term minor is a person who has not completed the age of 18 years and in the case of a minor or whose person or property, a guardian has been appointed by a Court or whose property is under a Court of Wards, the age of majority is attained on completion of 21 years. Section 147 provides that in all suits to which any person under disability is a party, any consent or agreement, as to any proceeding shall, if given or made with the express leave of the court by the Next Friend or Guardian for the suit have the same force and effect as if such person were under no disability and had given such consent or made such agreement. Suit by Next Friend: Rule 1 of Order 32 states that every suit by a minor shall be instituted in his name

by a person who in such suit shall be called the Next Friend of the minor. The reason behind this is his inability to bind himself and make himself liable for costs. In a suit, the title and description shall be “X, a minor by his next friend Y versus MN defendant. Application for taking off the file: Rule 2 states that where a suit is instituted by or on behalf of a minor without a next friend, the defendant may apply to have the plaint taken off the file, with costs to be paid by the pleader or other person by whom it was presented. Notice of such application shall be given to such person. Security for Costs: Rule 2A provides that the Court may, at any stage of the suit, order the next friend to give security for the payment of all costs incurred or likely to be incurred by the defendant. If the security is not furnished by the next friend, then the plaint is liable to be dismissed by the court. This provision is not applicable to Suit by or against persons of Unsound Mind. Guardian for minor defendant: Rule 3 states that where the defendant is a minor, the Court shall appoint a proper person to be guardian for the suit for such minor, on being satisfied of the fact of his minority. An application may be made in the name and on behalf of the minor or by the plaintiff for order for the appointment of guardian for the suit. Such application shall be supported by an Affidavit verifying the fact that the proposed guardian has no interest in the suit adverse to that of the minor and that he is a fit person to be so appointed. No order shall be made on any application except upon notice to –  any guardian of the minor appointed or declared, or  where there is no such guardian, upon notice to the father, or  where there is no father, to the mother, or  where there is no father or mother, to other natural guardian of the minor, or  where there is no father, mother, or other natural guardian, to the person in whose care the minor is, and after hearing any objection which may be urged on behalf of any person served with notice as above. Decree against minor: Rule 3A states that no decree passed against a minor shall be set aside merely on the ground that the next friend or guardian for the suit of the minor had an interest in the subject-matter of the suit adverse to that of the minor. But the fact that by reason of such adverse interest of the next friend or guardian for the suit, prejudice has been caused to the interests of the minor shall be a ground for setting aside the decree.

Who may act as next friend or guardian: Rule 4 states that any person who is of Sound Mind and has attained majority may act as next friend of a minor or as his guardian for the suit. Provided that the interest of such person is –  not adverse to that of the minor and  that he is not, in the case of a next friend, a defendant, or, in the case of a guardian for the suit, a plaintiff. Where a minor has a guardian appointed or declared by competent authority, no person other than such guardian shall act as the next friend of the minor or be appointed his guardian for the suit. No person shall without his consent in writing be appointed guardian for the suit. Every application to court on behalf of the minor shall be made by next friend or by guardian for the suit. (Rule 5) A next friend or guardian for the suit shall not receive any money or other movable property on behalf of a minor either – a) by way of compromise before decree or order, or b) under a decree or order in favor of the minor. (Rule 6) Agreement or Compromise by next friend or guardian: Rule 7 states that no next friend or guardian shall enter into any agreement or compromise on behalf of the minor, without the leave of the court. An application for leave shall be accompanied by an affidavit of next friend or guardian and also by the certificate of the pleader of minor, if he is represented by the pleader to the effect that agreement or compromise is proposed. Retirement of next friend: A next friend shall not retire without first procuring a Fit Person to be put in his place and giving security for the costs already incurred. (Rule 8) Removal of next friend: Rule 9 states that next friend may be removed – a) Where the interest of the next friend of a minor is adverse to that of the minor or b) where he is so connected with a defendant whose interest is adverse to that of the minor, or c) where he does not do his duty, or d) during the pendency of the suit, ceases to reside within India, or e) for any other sufficient cause. An application may be made on behalf of the minor or by a defendant for his removal. Stay of proceedings:

Rule 10 states that on the Retirement, Removal or Death of the next friend of a minor, further proceedings shall be stayed until the appointment of a next friend in his place. Retirement, removal or death of guardian: Where the guardian –  desires to retire or  does not do his duty, or  where other sufficient ground is made to appear, the Court may permit such guardian to retire or may remove him, and may make such order as to costs as it thinks fit. Where the guardian for the suit retires, dies or is removed by the Court during the pendency of the suit, the Court shall appoint a new guardian in his place. (Rule 11) Where a minor co-plaintiff on attaining majority desires to repudiate the suit, he shall apply to have his name struck out as co-plaintiff; and the Court, if it finds that he is not a necessary party, shall dismiss him from the suit on such terms as to costs or otherwise as it thinks fit. (Rule 13) Unreasonable or Improper Suit: A minor on attaining majority may apply that a suit instituted in his name by his next friend be dismissed on the ground that it was unreasonable or improper. (Rule 14) Application to Persons of Unsound Mind: Rule 15 states that Rules 1 to 14 except rule 2A shall apply to persons adjudged to be of unsound mind and shall also apply to persons who though not so adjudged, are found by the court on enquiry to be incapable by reason of any mental infirmity, of protecting their interest when suing or being sued. SUITS BY INDIGENT PERSONS Indigent person means a person who is poor, needy and pauper. This code has made provisions for suits by these indigent persons i.e. poor persons. Order 33 of the code specifies the provisions relating Suits by Indigent Persons. Suits may be instituted by indigent person: Rule 1 states that any suit may be instituted by an indigent person. Explanation I: A person is an indigent person – a) if he is not possessed of sufficient means (other than property exempt from attachment in execution of a decree and the subject-matter of the suit) to enable him to pay the fee prescribed by law for the plaint in such suit, or

b) where no such fee is prescribed, if he is not entitled to property worth 1000/- rupees other than the property exempt from attachment in execution of a decree, and the subject-matter of the suit. Explanation II: Any property which is acquired by a person after the presentation of his application for permission and before the decision of the application, shall be taken into account.

Inquiry into the Means: Rule 1A states that every inquiry into the question whether or not a person is an indigent person shall be made, by the chief ministerial officer of the Court, and the Court may adopt the report of such officer as its own finding or may itself make an inquiry into the question. Contents of Application: Every application for permission to sue as an indigent person shall contain –  the particulars required in regard to plaints in suits,  a schedule of any movable or immovable property belonging to the applicant, with the estimated value thereof, shall be annexed thereto; and it shall be signed and verified in the manner prescribed for the signing and verification of pleadings. (Rule 2) Presentation of Application: Rule 3 states that the application shall be presented to the Court by the applicant in person, unless he is exempted from in Court, in which case the application may be presented by an authorised agent who can answer all material questions and who may be examined. Examination of Applicant: Rule 4 states that where the application is in proper form and duly presented, the Court may examine the applicant, or his agent regarding the merits of the claim and the property of the applicant. Rejection of Application: Rule 5 states that the Court shall Reject an Application for permission to sue as an indigent person where – a) it is not framed and presented in the manner prescribed by rules 2 and 3, or b) the applicant is not an indigent person, or c) he has, within 2 months next before the presentation of the application, disposed of any property fraudulently or in order to be able to apply for

permission to sue as an indigent person. Provided that no application shall be rejected if, even after the value of the property disposed of by the applicant is taken into account, the applicant would be entitled to sue as an indigent person, or d) his allegations do not show a cause or action, or e) he has entered into any agreement with reference to the subject-matter of the proposed suit under which any other person has obtained an interest in such subject-matter, or f) the allegations made by the applicant in the application show that the suit would be barred by any law for the time being in force, or g) any other person has entered into an agreement with him to finance the litigation. Fixation of Day: The Court shall fix a day for receiving such evidence as the applicant may adduce in proof of his indigency, and for hearing any evidence which may be adduced in disproof thereof. (Rule 6) Grant of Application: Where the application is granted, it shall be numbered and registered, and shall be deemed the plaint in the suit. (Rule 8) Withdrawal of Permission: Rule 9 states that the Court may, on the application of the defendant, or of the Government pleader, order that the permission granted to the plaintiff to sue as an indigent person be withdrawn – a) if he is guilty of vexatious or improper conduct in the course of the suit; b) if it appears that his means are such that he ought not to continue to sue as an indigent person; or c) if he has entered into any agreement with reference to the subject-matter of the suit under which any other person has obtained an interest in such subject-matter. Court to Assign a Pleader: Where a person, who is permitted to sue as an indigent person, is not represented by a pleader, the Court may assign a pleader to him. (Rule 9A) Defence by an Indigent Person: Rule 17 states that any defendant who desires to plead a set-off or counter claim, may be allowed to set up such claims an indigent person, and the rules contained in this Order shall apply to him as if he were a plaintiff and his written statement were a plaint.

SUITS RELATING TO MATTERS CONCERNING THE FAMILY 1. Application of the Order: (1) The provisions of this Order shall apply to suits or proceedings relating to matters concerning the family. (2) In particular, and without prejudice to the generality of the provisions of sub-rule (1), the provisions of this Order shall apply to the following suits or proceedings concerning the family, namely :(a) a suit or proceeding for matrimonial relief, including a suit or proceeding for declaration as to the validity of a marriage or as to the matrimonial status of any person; (b) a suit or proceeding for a declaration as to legitimacy of any person; (c) a suit or proceeding in relation to the guardianship of the person or the custody of any minor or other member of the family, under a disability ; (d) a suit or proceeding for maintenance ; (e) a suit or proceeding as to the validity or effect of an adoption; (f) a suit or proceeding, instituted by a member of the family, relating to wills, intestacy and succession; (g) a suit or proceeding relating to any other matter concerning the family in respect of which the parties are subject to their personal law. (3) So much of this Order as relates to a matter provided for by a special law in respect of any suit or proceeding shall not apply to that suit or proceeding. 2. Proceedings to be held in camera: In every suit or proceeding to which this Order applies, the proceedings may be held in camera if the Court so desires and shall be so held if either party so desires.

3. Duty of Court to make efforts for settlement: (1) In every suit or proceeding to which this Order applies, an endeavour shall be made by the Court in the first instance, where it is possible to do so consistent with the nature and circumstances of the case, to assist the parties in arriving at a settlement in respect of the subject matter of the suit. (2) If, in any such suit or proceeding, at any stage it appears to the Court that there is a reasonable possibility of a settlement between the parties, the Court may adjourn the proceeding for such period as it thinks fit to enable attempts to be made to effect such a settlement. (3) The power conferred by sub-rule (2) shall be in addition to, and not in derogation of, any other power of the Court to adjourn the proceedings. 4. Assistance of welfare expert: In every suit or proceeding to which this Order applies, it shall be open to the Court to secure the services of such person (preferably a woman where available), whether related to the parties or not, including a person professionally engaged in promoting the welfare of the family as the Court may think fit, for the purpose of assisting the Court in discharging the functions imposed by rule 3 of this Order. 5. Duty to inquire into facts: In every suit or proceeding to which this Order applies, it shall be the duty of the Court to inquire, so far it reasonably can, into the facts alleged by the plaintiff and into any facts alleged by the defendant. 6. "Family"-meaning of: For the purposes of this Order, each of the following shall be treated as constituting a family, namely :(a) (i) a man and his wife living together, (ii) any child or children, being issue of theirs; or of such man or such wife, (iii) any child or children being maintained by such man and wife; (b) a man not having a wife or not living together with his wife, any child or children, being issue of his, and any child or children being maintained by him; (c) a woman not having a husband or not living together with her husband, any child or children being issue of hers, and any child or children being maintained by her;

(d) a man or woman and his or her brother, sister, ancestor or lineal descendant living with him or her ; and (e) any combination of one or more of the groups specified in clause (a), clause (b), clause (c) or clause (d) of this rule. Explanation: For the avoidance of doubts, it is hereby declared that the provisions of rule 6 shall be without any prejudice to the concept of "family" in any personal law or in any other law for the time being in force.]

SUITS RELATING TO MORTGAGES OF IMMOVABLE PROPERTY 1. Parties to suits for foreclosure sale and redemption: Subject to the provisions of this Code, all persons having an interest either in the mortgage-security or in the right of redemption shall be joined as parties to any suit relating to the mortgage. Explanation-A puisne mortgagee may sue for foreclosure or for sale without making the prior mortgagee a party to the suit; and a prior mortgagee need not be joined in a suit to redeem a subsequent mortgage. 2. Preliminary decree in foreclosure suit: (1) In a suit for foreclosure, if the plaintiff succeeds, the Court shall pass a preliminary decree(a) ordering that an account be taken of what was due to the plaintiff at the date of such decree for(i) principal and interest on the mortgage, (ii) the costs of suit, if any, awarded to him, and (iii) other costs, charges and expenses properly incurred by him up to that date in respect of his mortgage-security, together with interest thereon; or (b) declaring the amount so due at that date, and (c) directing(i) that, if the defendant pays into Court the amount so found or declared due on or before such date as the Court may fix within six months

from the date on which the Court confirms and countersigns the account taken under clause (a) or from the date on which such amount is declared. in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10, together with subsequent interest on such sums respectively as provided in rule 11, the plaintiff shall deliver up to the defendant, or to such person as the defendant appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, re-transfer the property to the defendant at his cost free from the mortgage and from all incumbrances created by the plaintiff or any person claiming under him, or, where the plaintiff claims by derived title, by those under whom he claims, and shall also, if necessary, put the defendant in possession of the property; and (ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the defendant fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the plaintiff shall be entitled. to apply for a final decree debarring the defendant from all right to redeem the property. (2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest. (3) Where, in a suit for foreclosure, subsequent mortgagees or persons deriving title from, or subrogated to the rights of,any such mortgagees are joined as parties, the preliminary decree shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9 or Form No. 10, as the case may be, of Appendix D with such variations as the circumstances of the case may require. 3. Final decree in foreclosure suit: (1) Where, before a final decree debarring the defendant from all right to redeem the mortgaged property has been passed, the defendant makes payment into court of all amounts due from him under sub-rule (1) of rule 2, the Court shall, on application made by the defendant in this behalf, pass a final decree(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and, if necessary,-

(b) ordering him to re-transfer at the cost or the defendant the mortgaged property as directed in the said decree, and also, if necessary,(c) ordering him to put the defendant in possession of the property. (2) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree declaring that the defendant and all persons claiming through or under him or debarred from all right to redeem the mortgaged property and also, if necessary, ordering the defendant to put the plaintiff in possession of the property. (3) On the passing of a final decree under sub-rule (2), all liabilities to which the defendant is subject in respect of the mortgage or on account of the suit shall be deemed to have been discharged. 4. Preliminary decree in suit for sale: (1) In a suit for sale, if the plaintiff succeeds, the Court shall pass a preliminary decree to the effect mentioned in clauses (a), (b) and (c) (i) of subrule (1) of rule 2, and further directing that, in default of the defendant paying as therein mentioned, the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what has been found or declared under or by the preliminary decree due to the plaintiff, together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest, and the balance, if any, be paid to the defendant or other persons entitled to receive the same. (2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before a final decree for sale is passed, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest. (3) Power to decree Sale in foreclosure suit - In a suit for foreclosure in the case of an anomalous mortgage, if the plaintiff succeeds, the Court may, at the instance of any party to the suit or of any other person interested in the mortgage-security or the right of redemption, pass a like decree (in lieu of a decree for foreclosure) on such terms as it thinks fit, including the deposit in Court of a reasonable sum fixed by the Court to meet the expenses of the sale and to secure the performance of the terms.

(4) Where, in a suit for sale or a suit for foreclosure in which sale is ordered, subsequent mortgagees or persons deriving title from, or subjugated to the rights of, any such mortgagees are joined as parties, the preliminary decree referred to in sub-rule (1) shall provide for the adjudication of the respective rights and liabilities of the parties to the suit in the manner and form set forth in Form No. 9, Form No. 10 or Form No. 11, as the case may be, of Appendix D with such variations as the circumstances of the case may require. 5. Final decree in suit for sale: (1) Where, on or before the day fixed or at any time before the confirmation of a sale made in pursuance of a final decree passed under sub-rule (3) of this rule, the defendant makes payment into Court of all amounts due from him under sub-rule (1) of rule 4, the Court shall, on application made by the defendant in this behalf, pass a final decree or, if such decree has been passed, an order(a) ordering the plaintiff to deliver up the documents referred to in the preliminary decree, and, if necessary(b) ordering him to transfer the mortgaged property as directed in the said decree, and, also, if necessary,(c) ordering him to put the defendant in possession of the property. (2) Where the mortgaged property or part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the defendant, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent. of the amount of the purchase-money paid into Court by the purchaser. Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent. thereof. (3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the plaintiff in this behalf, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold, and that the proceeds of the sale be dealt with in the manner provided in subrule (1) of rule 4.

6. Recovery of balance due on mortgage in suit for sale: Where the net proceeds of any sale held [rule 5] are found insufficient to pay the amount due to the plaintiff, the Court, on application by him may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance. 7. Preliminary decree in redemption suit: (1) In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree(a) ordering that an. account be taken of what was due to the defendant at the date of such decree for(i) principal and interest on the mortgage, (ii) the costs of suit, if any, awarded to him, and (iii) other costs, charges and expenses properly incurred by him up to that date, in respect of his mortgage-security, together with interest thereon; or (b) declaring the amount so due at that date; and (c) directing(i) that, if the plaintiff pays into Court the amount so found or declared due on or before such date as the Court may fix within six months from the date on which the Court confirms and countersigns the account taken under clause (a), or from the date on which such amount is declared in Court under clause (b), as the case may be, and thereafter pays such amount as may be adjudged due in respect of subsequent costs, charges and expenses as provided in rule 10, together with subsequent interest on such sums respectively as provided in rule 11, the defendant shall deliver up to the plaintiff, or to such person as the plaintiff appoints, all documents in his possession or power relating to the mortgaged property, and shall, if so required, retransfer the property to the plaintiff at his cost free from the mortgage and from all incumbrances created by the defendant or any person claiming under him where the defendant claims by derived title, by those. under whom he claims, and shall also, if necessary put the plaintiff in possession of the property; and (ii) that, if payment of the amount found or declared due under or by the preliminary decree is not made on or before the date so fixed, or the plaintiff fails to pay, within such time as the Court may fix, the amount adjudged due in respect of subsequent costs, charges, expenses and interest, the defendant shall be entitled to apply for a final decree-

(a) in the case of a mortgage other than a usufructuary mortgage, a mortgage by conditional sale, or an anomalous mortgage the terms of which provide for foreclosure only and not for sale, that the mortgage property be, sold, or (b) in the case of a mortgage by conditional sale or such an anomalous mortgage as aforesaid that the plaintiff be debarred from all right to redeem the property. (2) The Court may, on good cause shown and upon terms to be fixed by the Court, from time to time, at any time before the passing of a final decree for foreclosure or sale, as the case may be, extend the time fixed for the payment of the amount found or declared due under sub-rule (1) or of the amount adjudged due in respect of subsequent costs, charges, expenses and interest. 8. Final decree in redemption suit: (1) Where, before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale held in pursuance of a final decree passed under sub-rule (3) of this rule, the plaintiff makes payment into Court of all amounts due from him under subrule (1) of rule 7, the Court shall, on application made by the plaintiff in this behalf, pass a final decree or, if such decree has been passed, an order(a) ordering the defendant to deliver up the documents referred to in the preliminary decree, and, if necessary,(b) ordering him to re-transfer at the cost of the plaintiff the mortgaged property as directed in the said decree, and, also, if necessary,(c) ordering him to put the plaintiff in possession of the property. (2) Where the mortgaged property or a part thereof has been sold in pursuance of a decree passed under sub-rule (3) of this rule, the Court shall not pass an order under sub-rule (1) of this rule, unless the plaintiff, in addition to the amount mentioned in sub-rule (1), deposits in Court for payment to the purchaser a sum equal to five per cent. of the amount of the purchase-money paid into Court by the purchaser. Where such deposit has been made, the purchaser shall be entitled to an order for repayment of the amount of the purchase-money paid into Court by him, together with a sum equal to five per cent. thereof.

(3) Where payment in accordance with sub-rule (1) has not been made, the Court shall, on application made by the defendant in this behalf,(a) in the case of a mortgage by conditional sale or of such an anomalous mortgage as is hereinbefore referred to in rule 7, pass a final decree declaring that the plaintiff and all persons claiming under him are debarred from all right to redeem the mortgaged property and, also, if necessary, ordering the plaintiff to put the defendant in possession of the mortgaged property; or (b) in the case of any other mortgage, not being a usufructuary mortgage, pass a final decree that the mortgaged property or a sufficient part thereof be sold, and the proceeds of the sale (after deduction therefrom of the expenses of the sale) be paid into Court and applied in payment of what is found due to the defendant, and the balance, if any, be paid to the plaintiff or other persons entitled to receive the same.] 8A. Recovery of balance due on mortgage in suit for redemption: Where the net proceeds of any sale held under 64[rule 8] are found insufficient to pay the amount due to the defendant, the Court, 66[on application by him in execution], may, if the balance is legally recoverable from the plaintiff otherwise than out of the property sold, pass a decree for such balance.] 9. Decree where nothing is found due or where mortgagee has been overpaid: Notwithstanding anything hereinbefore contained, if it appears, upon taking the account referred to in rule 7, that nothing is due to the defendant or that he has been overpaid, the Court shall pass a decree directing the defendant, if so required, to re-transfer the property and to pay to the plaintiff the amount which may be found due to him; and the plaintiff shall, if necessary, be put in possession of the mortgaged property. 10. Costs of mortgagee subsequent to decree: In finally adjusting the amount to be paid to a mortgagee in case Of a foreclosure, sale or redemption, the Court shall, unless in the case of costs of the suit the conduct of the mortgagee has been such as to disentitle him thereto, add to the mortgage-money such costs of the suit and other costs, charges and expenses as have been properly incurred by him since the date of the preliminary decree for foreclosure, sale or redemption up to the time of actual payment 68

[Provided that where the mortgagor, before or at the time of the institution of the suit, tenders or deposits the amount due on the mortgage, or such amount as is not substantially deficient in the opinion of the Court, he shall not be

ordered to pay the costs of the suit to the mortgagee and the mortgagor shall be entitled to recover his own costs of the suit from the mortgagee, unless the Court, for reasons to be recorded, otherwise directs.] 10A. Power of Court to direct mortgagee to pay mesne profits: Where in a suit for foreclosure, the mortgagor has, before or at the time of the institution of the suit, tendered or deposited the sum due on the mortgage, or such sum as is not substantially deficient in the opinion of the Court, the Court shall direct the mortgage to pay to the mortgagor mesne profits for the period beginning with the institution of the suit.] 11. Payment of interest: In any decree passed in a suit for foreclosure, sale or redemption, where interest is legally recoverable, the Court may order payment of interest to the mortgagee as follows, namely:(a) interest up to the date on or before which payment of the amount found or declared due is under the preliminary decree to be made by the mortgagor or other person redeeming the mortgage(i) on the principal amount found or declared due on the mortgage, at the rate payable on the principal, or, where no such rate is fixed, at such rate as the Court deems reasonable. and (iii) on the amount adjudged due to the mortgagee for costs, charges and expenses properly incurred by the mortgagee in respect of the mortgagesecurity up to the date of the preliminary decree and added to the mortgagemoney,-at the rate agreed between the parties, or, failing such rate, 70[at such rate not exceeding six per cent. per annum as the Court deems reasonable]; and (b) subsequent interest up to the date of realisation or actual payment on the aggregate of the principal sums specified in clause (a) as calculated in accordance with that clause at such rate as the Court decrees reasonable.] 12. Sale of property subject to prior mortgage: Where any property the sale of which is directed under this Order is subject to a prior mortgage, the Court may, with the consent of the prior mortgagee, direct that the property be sold free from the same, giving to such prior mortgagee the same interest in the proceeds of the sale as he had in the property sold.

13. Application of proceeds(1) Such proceeds shall be brought into Court and applied as follows :first, in payment of all expenses incident to the sale or properly incurred in any attempted sale secondly, in payment of whatever is due to the prior mortgagee on account of the prior mortgage, and of costs, properly incurred in connection therewith ; thirdly, in payment of all interest due on account of the mortgage in consequence whereof the sale was directed, and of the costs of the suit in which the decree directing the sale was made; fourthly, in payment of the principal money due on account of that mortgage; and lastly, the residue (if any) shall be paid to the person proving himself to be interested in the property sold, or if there are more such persons than one, then to such persons according to their respective interests therein or upon their joint receipt. (2) Nothing in this rule or in rule 12 shall be deemed to affect the powers conferred by section 57 of the Transfer of Property Act, 1882 (4 of 1882). 14. Suit for sale necessary for bringing mortgaged property to sale: (1) Where a mortgagee has obtained a decree for the payment of money in satisfaction of a claim arising under the mortgage, he shall not be entitled to bring the mortgaged property to sale otherwise than by instituting a suit for sale in enforcement of the mortgage, and he may institute such suit notwithstanding anything contained in Order II, rule 2. (2) Nothing in sub-rule (1) shall apply to any territories to which the Transfer of Property Act, 1882 (4 of 1882), has not been extended. 15. Mortgages by the deposit of title deeds and charges: (1) All the provisions contained in this Order which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds within the meaning of section 58, and to a charge within the meaning of section 100 of the Transfer of Property Act, 1882 (4 of 1882); (2) Where a decree orders payment of money and charges it on immovable property on default of payment, the amount may be realised by sale of that property in execution of that decree.

INTERPLEADER SUIT (SECTION 88, ORDER 35) Important topics: 1) 2) 3) 

Basic characteristics of an interpleader suit Essentials of an interpleader suit Explanatory notes on interpleader suit An interpleader suit is one in which the real dispute is between the defendant sonly and the defendants interplead (i.e. plead against each other), instead of pleading against the plaintiff as in an ordinary suit. The plaintiff is really not interested in the subject matter. In fact, each of the defendants so interpleading is virtually in the position of a plaintiff.

Conditions (Section 88): Before institution of interpleader suit, following conditions must be satisfies: 1) there must be some debt, sum of money or other property movable or immovable in dispute; 2) Two persons must be claiming it adversely to one another; 3) The person from whom such debt, money or property is claimed must not be claiming interest therein other than the charges and costs and he must be ready and willingly to pay or deliver it to the rightful claimant; and 4) There must be no suit pending wherein the rights of rival claimants can be properly adjudicated. Procedure (Order 35, Rule 1): In every interpleader suit, the plaint must also state:1) that the plaintiff claims no interest in the subject matter in dispute, other than for charges or costs; 2) that the claims made by the defendants severally; 3) that there is no collusion between the plaintiff and any of the defendants. Who cannot file interpleader suit: An agent cannot sue his principal or a tenant his landlord for the purpose of compelling them to interplead with persons other than persons claiming through such principles or landlord. (Rule 5) Illustrations: a) A deposits a box of jewels with B as his agent. C alleges the jewels were wrongfully obtained from him by A, and claims them from B. B cannot institute an interpleader suit against A and C.

b) A deposits a box of jewels with B as his agent. He then writes to C for the purpose of making the jewels a security for debt due from himself to C. A afterwards alleges that C's debt is satisfied and C alleges the contrary. Both claim the jewels from B. B may institute an interpleader suit against A and C. [In the illustration (a), C claims adversely to A, and, therefore, no interpleader suit can lie, while in illustration (b), C claims through A and, therefore, it can lie.]

SUMMARY SUITS Civil litigation, especially recovery suits generally termed to be a long drawn battle and regarded as something best avoided, is not so. The general belief that by filing a recovery Suit against a Debtor will go on for years at large, is not so, if one knows the real scope of Order 37 of the Civil Procedure Code, 1908. Order 37 CPC is one of the best provisions in the hands of a proposed Plaintiff, wanting to institute a Civil Suit. Broadly it states as under:

Rule 1, Sub-Rule 2 makes it applicable to all suits upon bills of exchange, hundies and promissory notes or the ones in which a Plaintiff seeks only to recover a debt or liquidated demand in money payable on a written contract, an enactment, where the sum to be recovered is a fixed sum of money or in nature of any debt except penalty, a guarantee - in respect of a debt or liquidated demand. Rule 2 requires an Order 37 Suit to contain among others, a specific averment that the Suit is filed under this Order and no relief which does not fall within the ambit of this Rule is claimed. Under Order 37, there are Two stages of getting the Suit decreed. One is at the stage of Rule 2(3) and the other is at the stage of Rule 2(6). Rule 2(3) states the procedure for appearance of Defendant which is within 10 days from the service of the summons on him. After entering appearance, the Plaintiff serves on the Defendant summons for judgment within ten days from the date of service supported by an Affidavit; verifying the cause of action, amount claimed and that in his belief there is no defence to the suit. Rule 2(6) states that in case the Defendant does not apply for a leave to defend, (a) the Plaintiff shall be entitled to judgment immediately or (b) the Court may direct the Defendant to give such security as it may deem fit. Sub-clause 7 states

that in case sufficient cause is shown, the delay in entering an appearance or in applying for leave to defend the Suit may also be excused. Rule 2(5) further states that the Defendant may within 10 days from service of such summons for judgment by Affidavit or otherwise disclose such facts as may be deemed sufficient to entitle him to defend, apply for leave to defend and it may be granted to him unconditionally or upon such terms as may appear to the Court to be just. Further, the proviso indicates that leave to defend shall not be refused unless the Court is satisfied that the facts disclosed do not indicate a substantial defence or that the defence is frivolous or vexatious. A boon in the hands of the Plaintiff: The real benefit of an Order 37 Suit is that unless the Defendant is able to demonstrate that he has a substantial defence in his case, the Plaintiff is entitled to a judgment immediately. This in layman’s language means that the stages of filing a WS within 30 days and not later than 90 days, a rejoinder thereafter, admission/denial of documents, framing of issues by Court, leading evidence, cross-examination by parties, final arguments and then finally the judgment/decree, in an ordinary Civil Suit gets eliminated. So all that a Plaintiff has to show is that it is a case which falls within the ambit of Order 37. Once summons is issued, the ball is in the Court of the Defendant to show that he is entitled to a leave to defend, on grant of which the Order 37 Suit becomes an ordinary Civil Suit and the Defendant is then directed to file his WS within 30 days. Let’s analyze the law laid down by the Supreme Court on the issue. The crux of the various judgments on Order 37 has been summarized in Sunil Enterprises and Anr. v. SBI Commercial and International Bank Ltd. wherein the position was summarized as under: (a) If the defendant satisfied the Court that he has a good defence to the claim on merits, the defendant is entitled to unconditional leave to defend.

(b) If the defendant raises a triable issue indicating that he has a fair or bona fide or reasonable defence, although not a possibly good defence, the defendant is entitled to unconditional leave to defend.

(c) If the defendant discloses such facts as may be deemed sufficient to entitle him to defend, that is, if the affidavit discloses that at the trial he may be able to establish a defence to the plaintiff's claim, the Court may impose conditions at the time of granting leave to defend the conditions being as to time of trial or made of trial but not as to payment into Court or furnishing security.

(d) If the defendant has no defence, or if the defence is sham or illusory or practically moonshine, the defendant is not entitled to leave defend.

(e) If the defendant has no defence or the defence is illusory or sham or practically moonshine, the Court may show mercy to the defendant by enabling him to try to prove a defence but at the same time protect the plaintiff imposing the condition that the amount claimed should be paid into Court or otherwise secured. A three judge bench said in Precision Steel & Engg. Works vs Prem Deva Niranjan Deva Tayal said that mere disclosure of facts, not a substantial defence is the sine qua non. What is a substantial defence depends upon facts and circumstances of each case. In Southern Sales and Services and Ors. v. Sauermilch Design and Handels GMBH , it has been held that "Unconditional leave to defend a suit shall not be granted unless the amount as admitted to be due by the Defendant is deposited in Court." Generally, the Courts are usually reluctant to grant leave to defend especially an unconditional one. This is perhaps because in an Order 37 suit, balance of convenience is usually in favor of Plaintiff and the Courts are also aware of the delay caused in deciding a Civil Suit which takes about three to four years, to be finally decided with an option of Appeal to a higher fora still open. In Neebha Kapoor Vs.Jayantilal Khandwala, Supreme Court said the underlying public policy behind Order 37 is expeditious disposal of suits of commercial nature. It provides for such disposal as expeditiously as possible by prescribing time frame therefore. Where, however, applicability of Order 37 of the Code itself is in question which appears to be the principal reason behind the impugned judgment, in our opinion, grant of leave may be permissible. The court before passing a decree was entitled to take into consideration the consequences therefore. Getting out of Order 37: The idea behind a summary suit as stated in the Neebha Kapoor’s case is speedy remedy. But one must not forget - “justice hurried is justice buried”. A grant of leave to defend no doubt delays the trial but it will be a travesty of justice where a Plaintiff on basis of some photocopied documents, reproducing only the relevant extracts of an agreement and without the evidence and cross of key witnesses gets a decree solely on the basis that he has been able to make out a prima facie case, that too in most cases before a Trial Court. The concept of

making out a prima facie case exists in Indian jurisprudence in certain limited cases only, under Article 136 before Supreme Court, under Article 226, 227 before High Courts, etc. This jurisdiction cannot and should not be entrusted upon a Trial Court which is a Court of First Record. A few years of Trial is better than a scenario where a decree has been passed without giving proper opportunity to Defendant to put forth its case. “Audi Alteram Partem” is one of the basic features of our Constitution and a fair hearing should be given to all concerned. In any case, if the case of Plaintiff is genuine, along with the final judgment and decree he will also be entitled to not only to pendent elite interest but also the cost of the Suit, for causing delay and also for compensatory costs. Therefore no prejudice is caused to a Plaintiff as it is only a matter of time before he gets a decree in his favor. However, even for a bonafide Defendant, sometimes it may become a horrifying experience to get even a conditional leave to defend granted. In Neebha Kapoor’s case itself, the Supreme Court did not interfere with the order of the High Court granting unconditional leave to defend. In Defiance Knitting Industries Pvt. Ltd. v. Jay Arts , the Supreme Court held that the order of the Trial Court and High Court of granting a conditional leave to defend is not sustainable but since as an interim measure the amount was deposited before the Court, Supreme Court said that the amount need not be refunded and Trial Court was directed to proceed with the matter. Further, all that the Defendant has to show is a fair or bona fide or reasonable defence, although not a possibly good defence. That means prima facie it should appear that there is a good case on merits. Where there are disputed facts leave to defend, without doubt be granted. Also what is a Triable issue has not been defined anywhere and depends on facts and circumstances of each case. Further, a Defendant has to disclose only such defence as will entitle him to a leave to defend. Hence the provision does not envisage disclosing the entire defence and the same is not a pre-requisite for grant of leave to defend. While considering the scope of Rule 4 in Rajni Kumar vs Suresh Kumar Malhotra , the Supreme Court said that the expression 'special circumstances' is not defined in the C.P.C. nor is it capable of any precise definition. Non-service of summons will undoubtedly be a special circumstance. In an application under Order 37, Rule 4, the court has to determine the question, on the facts of each case, as to whether circumstances pleaded are so unusual or extra ordinary as to justify putting the clock back by setting aside the decree; to grant further relief in regard to post-decree matters, namely, staying or setting aside the execution and also in regard to pre decree matters viz., to give leave to the defendant to appear to the summons and to defend the suit. In considering an application to set aside

ex parte decree, it is necessary to bear in mind the distinction between suits instituted in the ordinary manner and suits filed under Order 37 C.P.C. Order 37 CPC is best suited for cases in which a Defendant does not have a case at all and the Suit is prolonged for years. Also cases in which loans are taken from Banks and borrowers disappear with no trace, Order 37 is useful as on the basis of loan documents, it is easier to get a decree from Court within a short time and then all that is left for a Bank to do is, to find the Defendant and get the decree executed. Infact, most borrowers, who otherwise are not scared of recovery agents, often offer settlement once they receive summons and are reprimanded by the Courts. In Inderjeet Kaur vs Nirpal Singh, Supreme Court warned that cautious and judicious approach plus balanced view in respect of competing claims is necessary. It further stated that at a stage when leave to defend is sought, it is enough if he prima facie makes out a case by disclosing such facts as would disentitle the other side from claiming an order. It would not be a right approach to say that unless the Defendant at that stage itself establishes a strong case, he should be granted leave. It further cautioned that leave to defend sought for cannot also be granted for mere asking or in a routine manner which will defeat the very object of the special provisions contained in Chapter III-A of the Act.

SUITS BY OR AGAINST CORPORATIONS: 1. Subscription and verification of pleading: In suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by the secretary or by any director or other principal officer of the corporation who is able to depose to the facts of the case. 2. Service on corporation: Subject to any statutory provision regulating service of process, where the suit is against a corporation, the summons may be served(a) on the secretary, or on any director, or other principal officer of the corporation, or (b) by leaving it or sending it by post addressed to the corporation at the registered office, or if there is no registered office then at the place where the corporation carries on business. 3. Power to require personal attendance of officer of corporation: The Court may, at any stage of the suit, require the personal appearance of the secretary or of any director, or other principal officer of the corporation who may be able to answer material questions relating to the suit.

UNIT VI JUDGEMENT AND DECREE

Judgment: Section 2 (9) of the code defines the term Judgment. “Judgment means the statement given by the judge on the grounds of a decree and order.” Section 33 of the code states that the Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow. Rules 1 to 5 of the Order 20 contains the detailed provisions relating to the Judgment. Rule 1 of the order 20 states that the Court shall pronounce judgment in an open Court after the case has been heard and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders. Provided that where the judgment is not pronounced at once, every endeavor shall be made by the Court to pronounce the judgment – - within thirty days, or - not beyond sixty days where it is not practicable to pronounce judgment on the ground of the exceptional and extraordinary circumstances of the case, from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders. A judge shall pronounce judgment written by his predecessor but not pronounced by him. (Rule 2) The judgment shall be dated and signed by the judge in open court at the time of pronouncing it, and, when once signed shall not afterwards be altered or added to, save as provided in section 152 [Amendment of judgment or clerical or arithmetical mistakes] or on review. In suits in which issues are framed, the Court shall state its finding or decision on each separate issue with the reasons therefor. Where both the parties are not represented by pleaders, the court shall while pronouncing judgment in a case subject to appeal, inform the parties as to the Court to which

an appeal lies and the period of limitation of filing such appeal. Decree: Section 2 (2) of the code defines the term Decree. “Decree means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of plaint and the determination of any question within section 144, but shall not include – a) any adjudication from which an appeal lies as an appeal from an order, or b) any order of dismissal for default. Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.” Section 33 of the code states that the Court, after the case has been heard, shall pronounce judgment, and on such judgment a decree shall follow. Types of Decree:  Preliminary Decree  Final Decree  Partly Preliminary and Partly Final Decree  Rejection of Plaint  Determination of any question within section 144 [Application for Restitution] Rules 6 to 20 of Order 20 contain the detailed provisions relating to the Decree. Rule 6 states the Contents of Decree. The decree – - shall agree with the judgment; - shall contain the number of the suit, the names and descriptions of the parties, their registered addresses, and particulars of the claim, and - shall specify clearly the relief granted or other determination of the suit. - shall the amount of costs incurred in the suit, and by whom or out of what property and in what proportions such costs are to be paid. - may direct that the costs payable to one party by the other shall be set off against any sum which is admitted or found to be due from the former to the latter. Rule 6A states that every endeavor shall be made to ensure that the decree is drawn up as expeditiously as possible and, in any case, within 15 days from the date on which the judgment is pronounced. An appeal may, be preferred against the decree without filing a copy of the decree.

Rule 6-B states that where the judgment is pronounced, copies of the judgment shall be made available to the parties immediately after the pronouncement of the judgment for preferring an appeal on payment of such charges as may be specified in the rule made by the High Court. Rule 7 states that the decree shall bear date the day on which the judgment was pronounced, and, when the Judge has satisfied himself that the decree has been drawn up in accordance with the judgment, he shall sign the decree. Rule 8 states that if the judge has vacated the office before signing the decree, then the successor shall sign the decree. Rule 9 states that where the decree is for recovery of immovable property, the decree shall contain a description of such property to identity the same. Rule 10 states that where the decree is for delivery of movable property, it shall also state the amount of money to be paid as an alternative. Difference between Judgment and Decree: 1)

Definitions as stated above.

Section 2(2) and Section 2(9)

2) There are no types of judgment. The decree has 5 types, those are Preliminary Decree, Final Decree, Partly Preliminary and Partly Final Decree, Rejection of Plaint, Determination of any question within section 144 [Application for Restitution]. 3) Judgment shall be given on Facts and Evidences. Decree shall be given on Judgment. 4) The judgment shall be pronounced in an Open court. There is no such provision in case of decree. 5) The judgment shall be pronounced within 30 days or not beyond 60 days from the date on which the hearing of the case was concluded. The decree shall be passed within 15 days from the date on which the judgment was pronounced. 6) The judgment can be altered or added to under section 152 [Amendment of judgment or clerical or arithmetical mistakes] or on review. But, decree cannot be altered or added to. 7) The judgment shall contain the date and signature of the court and it shall also contain its finding or decision on each issue. The decree shall contain number of the suit, the names and descriptions of the parties, their registered addresses,particulars of the claim, amount of costs, relief granted or other

determination of the suit.

Essential Elements of decree: 1) There must be adjudication. 2) Such adjudication must have been given in a suit 3) It must have determined the rights of the parties with regard to all or any of the matters in controversy in the suit. 4) Such determination must be of conclusive nature. 5) There must be a formal expression of such adjudication 6) The adjudication must have been given by a civil or revenue court. Decision which are decrees: Illustrations (a) Order of abatement of suit (b) Dismissal of appeal as time barred (c) Dismissal of suit or appeal for want of evidence or proof (d) Rejection of plaint for non-payment of court fees (e) Granting or refusing to grant instalments (f) Modification of scheme under Section 92 of the Code (g) Order holding appeal not maintainable (h) The determination of any question under Section 144 (Restitution) Decisions which are not decrees: Illustrations (a) Dismissal of appeal for default (b) Appointment of commissioner to take accounts (c) Order of remand (d) Order granting interim relief (e) Return of plaint for presentation to proper court (f) Dismissal of suit under Order 23, Rule 1 (g) Refusing to wind up a company (h) Any adjudication from which an appeal lies as an appeal from an order

Classes of decrees: 1) 2) 3) 

Preliminary decree Final decree Partly preliminary and partly final Rejection of plaint is a decree under Section 2 (2) CPC

 

 

 

Restitution Order under Section 144 is a decree. Appealable Orders: Sections 104, Order 43, Rule 1 are not decrees. No second appeal lies in case of appealable orders. Dismissal for default order is not a decree. Cross decrees: A decree of plaint against defendant and a decree of defendant against plaintiff. A decree passed by a court without jurisdiction is nullity. An order imposing compensatory costs under Section 35A is an appealable order under Section 104(1) (ff) so it is not a decree.

Decree [Section 2(2)] 1. Only in a suit 2. Conclusively adjudicates the rights and liabilities of the parties. 3. Preliminary/final/party preliminary and partly final 4. Generally one decree is passed in each suit 5. It is appealable under Section 96, CPC 6. Second appeal on substantial question of law under Section 100

Order [Section 2(14)] 1. 2. 3. 4.

Suit/Petition/Application May/may notification Not applicable Numerous orders are passes in a single proceeding 5. Only those orders are appealable which are described under Section 104, Order 43, Rule 1 6. No second appeal

Distinction among decree, order and judgment: 1) Judgment is prior stage and decree or order subsequent stage 2) Statements given by a judge are described in a judgment but not in decree or order 3) Formal expression of an order in a judgment is not necessary though it is desirable. Order 20, Rule 6A enacts that the last paragraph of a judgment should state the relief granted.

Preliminary and Final decree: Section 97 – The preliminary decree cannot be dispute in an appeal filed against final decree.

Preliminary decree 1. Further proceedings necessary to dispose of the suit finally. 2. Only some or one of the controversial matters are disposed of 3. It ascertains what to be done 4. It is independent 5. In partition and partnership suit several preliminary decrees may be passes

Final decree 1. It disposes of the suits finally. 2. Rights and liabilities are finally adjudicated 3. It states the result of preliminary decree. 4. It is dependent on the preliminary decree and subordinate to preliminary decree. 5. Only one [Shankar vs. Chanderkant (AIR 1995 SC0]

List of appealable orders: Section 104, Order 43, Rule 1 Orders which are decrees: 1) 2) 3) 4) 5)

6) 7) 8) 9)

An order rejecting a plaint An order dismissing a suit for non-payment of court fees. An order discharging some of the defendants for want of cause of action. An order rejecting a plaint for insufficiency of stamp. An order discharging defendants for failure of the plaintiffs to furnish particulars, as it is amounts either to rejection of a plaint or dismissal of a suit. A decision that the subordinate court has no jurisdiction. An order of abatement of a suit. An order staying execution of a decree. An order dismissing cross-objection.

Orders which are not decrees: 1) 2) 3) 4) 5) 6) 7)

An order refusing stay Remand under Section 151, CPC. Rejection of an application for leave to sue in forma pauperis. Overruling a plea against the maintainability of a suit. Decision in plaintiff's favor as to his locus standi to sue Appointment of commissioner to take accounts An interlocutory order in execution deciding a point of law arising incidentally



Declaration on questions of limitation, jurisdiction, res judicata and maintainability of a suit which determines only the plaintiff's right to sue do not fall within the ambit of decree. The decision on issue as to limitation in favor of plaintiff is not a decree in as much as it decides merely the plaintiff's right to sue.



Interlocutory orders may amount to a decree under Section 2 (2) if they are sufficient to dispose of the suit as a whole, no matter whether they are passed in suit or execution proceedings.

AWARDING INTEREST AND COSTS (SECTIONS 34, 35, 35 A, 35 B; ORDER 25) (A) “Costs” shall follow the event” (Section 35, CPC): The expression “costs shall follow the event” means the successful party is entitled to his costs” and also it means, “Costs follow the result of the suit.” Section 35 deals with costs. It provides that:1) The costs of and incident to all suits shall be in the direction of the court; 2) The court shall have full power to determine by whom or out of what property and to what extent costs are to be paid; and 3) Where the costs are not to follow the event i.e. where the costs do not follow the result of the suit, the court shall state the reasons in writing. Exceptions: The general rule is that the successful party is entitled to costs but in exceptional cases it may be awarded to the opposite party also:1) When the successful party is guilty of misconduct, negligence or omission etc. 2) Everything which is done by a party to increase the litigation and costs, i.e. raising unnecessary issues, is a good cause for depriving him of his costs. 3) A person wrongfully made a party should get his costs. 4) If a plaintiff succeeds only with regard to part of his claim and fails on important issues, he may be ordered to pay the whole cost of the suit to the defendant. 5) In case of unreasonable, vexatious and improper interrogatories the costs occasioned by the said interrogatories and the answers thereto shall be paid in any event by the party in default. 6) Where the plaintiff withdraws from a suit or abandons party of a claim without the permission of the court, he shall be liable for such costs as the court may award. Jugra Singh vs. Jawant Singh, (1971) SC – It was held that normally costs should follow the event and it is not the rule that costs should be left to be borne by the parties. 7) For any other reason. The court must record reasons for not awarding costs to the winner party.  An appeal lies for costs but when a court refuses costs no separate suit for it is maintainable.

(B) Payment of interest in money – Decree (Section 34): Section 34 of the Code contains the provisions relating to the Payment of Interest. Interest is to be paid in cases where the decree is for the payment of money. Where the decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid – -

on the principal sum adjudged, from the date of the suit to the date of the decree, in addition to any interest adjudged, on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding 6% p.a., as the court deems reasonable on such principal sum, as the court deems reasonable on such principal sum, from the date of the decree to the date of the payment, or to such earlier date as the Court thinks fit.

Provided that if the liability of the sum adjudged had arisen out of commercial transactions, the rate of such interest may exceed 6% p.a., but shall not exceed the contractual rate of interest or if there is no contractual rate, the rate at which moneys are lent by nationalized banks. If such a decree is silent with respect to payment of further interest from the date of the decree to the date of the payment, then the court shall be deemed to have refused such interest and no separate suit shall lie for it.

(C) Compensatory costs (Section 35 A): Section 35 A provides for payment of “compensatory costs” if the claim (or defence) is fare or vexatious and subsequently disallowed or abandoned or withdrawn.  It is a discretionary power on the part of court, but it must record its reasons for holding a claim (or defence) as false or vexatious.  Section 35 A is an exception to the general principle that the award of costs to a litigant is to secure to him the litigation expenses, and not to enable him to get money by way of penalty or punishment on the opposite party. Amount of compensatory costs = maximum Rs. 3,000/- or = court's pecuniary jurisdiction; whichever is less.  Imposition of costs under Section 35 A does not absolve a person from criminal liability that may arise therefrom.  Section 35 A applies only to suits and proceedings, but not to an appeal or revision. An order for compensation under Section 35 A is appealable.

(D) Costs for causing delay (Section 35 B): Section 35 B provides for the imposition of costs on the plaintiff or the defendant for causing delay. The power exercised by the court is directory. Such costs can be awarded irrespective of the outcome of the litigation.  Costs imposed under Section 35 B if paid, cannot be included again in the costs awarded in the decree passed in the suit; if not paid, be executable against the person on whom the costs has been imposed.

Cases for Reference:  Vinodkumar Singh Vs. Banaras Hindu University (1988) 1 SCC 80  Surendra Singh Vs. State of U.P. AIR 1954 SC 194  Burrayya Vs.Atchayyamma AIR 1959 A.P. 26  Harikrishna Vs. Arur Pandithan AIR 1923 Mad 663  Director (Studies) Vs. Vaibhav Singh Chauhan AIR 2008 SC (Supp) 696  Lokmanya Prasad Vs. Jamela Chatool AIR 2010 Jhar. 77  Mundar Lal Sahu Vs. Jeevan Ram Marvari AIR 1944 A.P. 254

UNIT VII APPEAL, REVISION, REFERENCE AND REVIEW

Powers of the Appellate Court: 1) Final determination [Section 107 (1) (a); Order 41, Rule 24] 2) Remand [Section 107 (1) (b), Rule 23, 23 A] 3) Framing extra issues and referring them for trial [Section 107 (1) (c), Rules 25 & 26] 4) Additional evidence [Section 107 (1) (d), Rules 27 – 29] 5) Modification of decree [Rule 33, Order 41] 6) Other powers [Section 107 (2)] Remand [Section 107 (1) (b), Rule 23, 23 A]: Remand mean to send back where the trial court has decided the suit on a preliminary point without recording findings on the other issues and if the appellate court reverses the decree so passed, it may send back the case to the trial court to decide other issues and determine the suit. This is called remand. Conditions [Rule 23, Order 41]: Following conditions must be satisfied before a suit is remanded for fresh trial: 1) The suit must have been disposed of by the trial court on a preliminary point. Preliminary point

(a) whether the suit is time barred; (b) The plaintiff is estopped from proving his case; (b-1) the suit is barred by limitation; (c) the suit is barred by res judicata; (d)the suit was motivated; (d-1) the suit disclosing no cause of action etc. (f) the plea raised at the hearing was different from that raised in plaint etc. (e) the court has no jurisdiction to try the suit; (f-1) the necessary leave has not been obtained by the plaintiff. 2) The decree under appeal must have been reversed by the Appellate Court.

3) Rule 23 A of Order 41 empowers the Appellate Court to remand a case even when the lower court has disposed of the case otherwise than on a preliminary point and the remand is considered necessary by the appellate court in the interest of justice.

An order of remand reverses the decision of the lower court and re-opens the case of retrial except on the points which are decided by the Appellate Court.  An order of remand is appealable under Order 43 (1) (4).  If a party is aggrieved by an order of remand does not appeal therefrom, he cannot subsequently question its correctness under the inherent powers of the court under Section 151 of the Code.  The High Court has inherent power under Section 151 to remand cases not falling within Order 41, Rule 23. Additional evidence [Section 107 (1) (d), Order 41, Rule 27 – 29]: A party to an appeal cannot produce additional or fresh evidence in the appellate court. But, Rule 27 allows it under certain circumstances:1) Where the lower court has improperly refused to admit evidence which ought to have been admitted; or 2) Where such additional evidence was not within the knowledge of the party or could not, after exercise of due diligence, be produced by him at the time when the lower court passed the decree; or 3) Where the Appellate Court itself requires the evidence either (a) to enable it to pronounce judgment; or (b) for any other substantial cause. K. venkataraman vs. Sitaram Reddy, AIR 1963 SC: The occasion for admitting additional evidence under Rule 27 arise only after the commencement of hearing of appeal and after an examination of the evidence as it stands when some inherent issues or defects becomes apparent. Such evidence can be admitted only when the Appellate Court required it. The court may require it to pronounce its judgment in more satisfactorily way. Shivajirao Patil vs. Mahesh Madhav, AIR 1987 SC: The Supreme Court laid down three conditions for admission of additional evidence in Appellate Court:1) The applicant must be able to establish that with the best efforts such additional evidence could not have been adduced at the trial court. 2) The opposite party should have an opportunity to rebut such additional evidence. 3) That the additional evidence was relevant for the determination of the issue.

Modification of decree (Rule 33, Order 41): Rule 33, Order 41 empowers an appellate court to make such an order which is required to be made for doing a complete justice. Illustrations: a) A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X appeals and A and Y are respondents. The appellate court decides in favour of X. It has power to pass a decree against Y. b) A claims a money as due to him from X or Y. The suit is decreed partly against X and and partly against Y. X appeals but Y does not. The appellate court can discharge X making Y liable for the whole amount. Conditions: The language of Rule 33, Order 41 is very wide. The following requirements, however, must be satisfied before it can be invoked:1) The parties before the lower court must also be these before the Appellate Court; and 2) The question raised must have properly arisen out of the judgment of the lower court. If these two conditions are fulfilled, the appellate court can consider any objection against any part of the judgment or decree of the lower court. It may be urged by any party to the appeal. Rameshwar Prasad vs. Shyam Behari Lal, Air 1963 SC: While exercising powers under Rule 33, Order 41 the court should not lose sight of other provisions of the CPC itself nor the provisions of the other laws, viz. the law of limitation or the law of court-fees etc.

FIRST APPEAL (SECTIONS 96 – 99 A, ORDER 41) Important topics: 1) Appeal is a creature of statute, i.e. unless right of appeal is clearly given by statute, it does not exist. 2) Can an Appellate Court reverse a decree on the ground of misjoinder of parties. [Section 99, CPC] 3) Whether a new plea can be raised in an appeal. (Please see Ch. 43, Point – Additional evidence) Appeal: A judicial examination of the decisions of a lower court by a higher court. Ever appeal has three basic elements:1) A decision (usually a judgment of a court or the ruling of an administrative authority); 2) A person aggrieved (who is often, though not necessarily), a party to the original proceedings); and 3) A reviewing body ready and willing to entertain an appeal. Appeal is a creature of statute: The honorable Supreme Court in Ganga Bai vs. Vijay Kumar, AIR 1974 SC held that the right of appeal is not a natural or inherent rights. It is a creature of statute and there is no right of appeal unless expressly provided by a statute. The right of appeal is a substantive right and not merely a matter of procedure. It is vested right and accrues to the litigant and exists as on and from the date of the “lis” commences. It may be actually exercised when the adverse judgment is pronounced. Such right can be taken away only by a subsequent enactment if it so provides expressly or by necessary implication, and not otherwise. Anant Mills Co. Ltd. vs. State of Gujarat Air 1975 SC: Justice Khanna, J. observed, “It is well settled by several decisions of this court that the right of appeal is a creature of a statute and there is no reason why the ligislature while granting the right cannot impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory.” Reversal of decree for misjoinder of parties (Section 99): Section 99 of the code enacts that a decree which is otherwise correct on merits and is within the jurisdiction of the court should not be upset merely for technical and immaterial defects such as misjoinder of parties. The underlying object of Section 99 is “to prevent technicalities from overcoming the ends of justice, and from operating as a means of circuity of litigation.”

Kiran Singh vs. Chaman Paswan, AIR 1954 SC: When a case has been tried by a court on the merits and judgment rendered, it should not be liable to be reverse purely on technical grounds, unless it has resulted in failure of justice. Doctrine of merger: A decree passed by the trial court merges with the decree of the apellate court. The doctrine of merger is based on the principle that there cannot be, at one and the same time, more than one operative decrees governing the same subject matter. As soon as an appeal is decided by an appellate court, the degree of the trial court ceases to have existence in the eyes of law and is superseded by a decree by an appellate court. No appeal in consent decree [Section 96 (3)]: Section 96 (3) declares that no appeal shall lie against a consent decree. K. C. Dora vs. Annamanaidu, AIR 1974 SC: Section 96 (3) is based on the broad principle of estoppel. Banwari Lal vs. Chando Devi, AIR 1993 SC: Section 96 (3) does not apply where the factum of compromise is in dispute or the compromise decree is in dispute or the compromise decree is challenged on the ground that such compromise had not been arrived at lawfully.  New pleas based on question of law can be raised first time not only in first appeal but also in second appeal also. No appeal in petty cases [Section 90 (4)]: Section 96 (4) bars appeals on facts from a decree passed in petty suit where the amount or value of the subject matter of the original suit does not exceed Rs. 10,000/-, if the suits in which such decree is passed is of a nature cognizable by court of small causes. Conditions: 1) A suit is cognizable by a court of small causes. 2) The suit value is Rs. 10,000/- (highest). 3) It is a petty suit. 4) A decree passed in such a suit is not appealable on question of fact. 5) An appeal from such a decree can be preferred on question of law.

SECOND APPEAL (SECTIONS 100 – 103, ORDER 42) Substantial questions of law: A second appeal lies only on substantial question of law. The 1976Amendment has barred the second appeal on erroneous decision on law or fact or procedure. Chunnilal Mehta & Sons vs. Century Spinning & Manufacturing Co., AIR 1962 SC: The Supreme Court held that the construction of a document of title which is the foundation of the rights of the parties, necessarily raises a “question of law”. It laid down the following principles to determine whether a question of law is a “substantial question of law”:1) If the question is of general public importance, or it directly and substantially affects the rights of the parties. A substantial question of law is a substantial question of law as between the parties in the case involved, an does not mean a question of general importance. 2) Whether it is either an open question in the sense that it is not finally settled by this court (Supreme Court) or by Privy Council or by the Federal Court, or is not free from difficulty (a doubt about the principle of law involved) or calls for discussion of alternative views; then it is a substantial question of law. 3) If the question is settled by the highest court (Privy Council, Federal Court or Supreme Court) or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles (thus a misapplication of principles of law does not raise any substantial question of law) or that the plea raised is palpably absurd, the question would not be a substantial question of law. The following questions may be said to be substantial question of law:1) 2) 3) 4) 5) 6) 7) 8) 9)

Recording of a finding without any evidence on record; Disregard/non-consideration of relevant/admissible evidence; Taking into consideration irrelevant/inadmissible evidence; Misconstruction of evidence or documents; Inference from or legal effect of proved/admitted facts; A question of admissibility of evidence; A question on which there is a conflict of judicial opinion; Placing onus of proof on wrong party; Disposal of appeal before disposing an application for additional evidence under Order 41.

REFERENCE (ORDER 46, SECTION 113) Section 113, CPC empowers a subordinate court to state a case and refer the same for the opinion of the High Court. Conditions (Order 46, Rule 1): The rule requires the following conditions to be satisfied to enable a subordinate court to make a reference: 1) There must be a pending suit or appeal in which decree is not subject to appeal, or a pending proceeding in execution of such decree; 2) A question of law or usage having the force of law must arise in the course of such suit, appeal or proceeding; 3) The court trying the suit or appeal or executing the decree must entertain a reasonable doubt on such question; 4) The determination of such question is necessary for disposal of the suit or appeal finally. 5) The court trying the suit or appeal cannot determine such legal question itself. 6) The question has not been decided by the Supreme Court or by the High Court to which such court is subordinate. If the above mentioned conditions are fulfilled, the court will refer the question with the short summary of the case in hand and its own opinion to the High Court for its decisions. Question of law on which a subordinate court may entertain a doubt may be divided into two classes: Question of law

(1) the validity of any Act, Ordinance or Regulation. (2)Other questions

In the first case, the reference is compulsory while in the second case it is optional. In the first case, before referring a question to the High Court, following conditions must be satisfied: 1) It is necessary to decide such question in order to dispose of the case; 2) The subordinate court is of the view that the impugned Act, Ordinance or Regulation is ultra vires; and 3) There is no determination either by the Supreme Court or relevant High Court that such Act, Ordinance etc is ultra vires. The object of this provision is that the act of the legislature should be interpreted by the Apex Court.

REVIEW (SECTION 114, ORDER 47) Review: Review means to look once again. Section – 114 provides that any person considering himself aggrieved:(a) By a decree/order from which an appeal is allowed but no appeal has been preferred; (b) By a decree/order from which no appeal is allowed by this code; or (c) By a decision on a reference from a court of small causes; may apply for a review of the judgment to the court which passed the decree or made the order, and the court may make an appropriate order.  The review provision is an exception to the general rule that once the judgment is signed and pronounced by the court it becomes functus officio (ceases to have control over the matter and has no jurisdiction to alter it). Conditions/Grounds (Order 47, Rule 1): 1) Discovery by the applicant of new and important matter/evidence which, after the exercise of due diligence was not within his knowledge or could not be produced by him at the time when the decree was passed or made; or 2) On account of an error or mistake apparent on the face of the record; or 3) For any other sufficient reason. The explanation makes it clear that the fact that the law on which the judgment was based has been reversed by the decision of the superior court, will not be a ground of review of judgment.  The case cannot be re-opened because the law has been modified by subsequent legislation or a judgment. The ground for review viz. new matter or evidence must be something which existed at the date of the decree; the decree cannot be reviewed on the ground of happening of some subsequent event. (Vide: Explanation to Rule 1, Order 47)  Order 47, Rule 7 lays down that an order of the court rejecting the review application shall not be appealable, but an order granting the application is appealable.  There cannot be a review of a review i.e. no review application can be made to review the order made on a review application.  The court has an inherent power under Section 151 to review its wrong orders/decisions passed previously. But the inherent jurisdiction should not be used in the areas where Order 47, Rule 1 is applicable.

REVISION (SECTION 115) Section 115 (1): The High Court may call for the record of “any case which has been decided” by a court subordinate to it and in which no appeal lies thereto, and if the subordinate court appears:a) to have failed to exercise a jurisdiction vested in it; or b) to have exercise a jurisdiction which is not vested in it. c) to have acted in the exercise of its jurisdiction illegally or with material irregularity. The High Court may make such order in the case as it thinks fit: 1) The High court will not vary/reverse any order made unless such order will dispose of the suit finally. 2) The High Court will not vary/reverse any decree or order against which an appeal lies either to High court or to any court subordinate thereto. 3) A revision shall not operate as stay unless it is granted by the High Court. The explanation makes it clear that the expression “any case which has been decided” includes any order made, or any order deciding an issue, in the course of a suit or other proceedings. Essential conditions (Section 115): 1) Order impugned amounts to be a “case decided”. 2) The order impugned is not directly liable to be challenged by way of appeal; 3) The order impugned suffers from jurisdictional error i.e. a) refusal to exercise the jurisdiction vested in the court; b) exercise of such jurisdiction as is not vested in the court; c) illegal or irregular exercise of jurisdiction. 4) The case must be decided by a subordinate court to High Court. Illustrations where revision lies to High Court: 1) The court entertains a suit or appeal in which it has no jurisdiction. 2) The court accepts an application for execution of non-executable decree. 3) Refusal by court to summons the deponent of an affidavit for crossexamination. 4) Order of court to a pardanashin lady to appear in open public. 5) The court grants injunction without considering whether any prima facie case is made out. 6) The court decides a case without considering evidence on record. 7) The court decides a case without recording reasons for it.

8) The court decides a case without giving an opportunity of hearing to one party. 9) An erroneous finding on the point of limitation, res-judicata, ressubjudice, cause of action or admissibility of suit/application etc.  The High Court will decline to exercise its revisional jurisdiction if the matter is sub-judice in an appeal filed by another party to the same suit.  Section 115applies to cases in which no appeal (first/sectiond) lies. If an appeal lies against the decision directly or indirectly to High Court.  The revisional jurisdiction cannot be exercised. But where the decision is not appealable to the High Court itself, the revisional jurisdiction of the court is not excluded.  A revision does not abate on the death of the applicant. Appeal, Reference, Review and Revision (Distinction):

(1) Appeal and Revision: Appeal [Sections 96 – 99A, Order 41]

Revision [Section 115, CPC]

1. It lies to superior court – High Court/other 2. It lies from the decrees and appealable order. 3. Substantive right 4. An appeal abates if the legal representatives of the deceased party are not brought on record within 90 days. 5. On the ground of wrong decision on the question of law or fact. 6. Memorandum of appeal must be filed in superior court.

1. Only to High Court. 2. It lies where no appeal lies to High Court/subordinate courts. 3. It is purely discretionary. 4. It does not abate in such cases. The High Court may at any time bring the proper parties on the record. 5. Ground – Jurisdictional error. 6. Application/suo motu by High Court.

(2) Reference and Review: Reference [Section 113, Order 46] 1. By the Subordinate Court. 2. To the High Court. 3. During the pendency of suit, appeal, application. 4. Grounds: any cat, ordinance, enactment being ultra vires buthas not been declared so.

Review [Section 114, Order 47] 1. By the aggrieved party. 2. To the same court which passed the decree/order. 3. After the decision of the suit etc. 4. Grounds: a) mistake apparent on the face of record; b) new evidence; c) other sufficient ground;

(3) Reference and Revision: Reference [Section 113, Order 46] 1. By the subordinate court. 2. During the pendency of suit/appeal etc. 3. Ground: reasonable doubt on question of law.

Revision [Section 115] 1. By the aggrieved party/suo motu by the High Court. 2. After decision of the suit/application/appeal etc. 3. Jurisdictional error of subordinate court.

(4) First Appeal and Second Appeal: First Appeal [Section 96 – 99 A, Order 41]

Second Appeal [Section 100 – 103, Order 42]

1. From a decree passed by the court in exercise of original jurisdiction. 2. To superior court which may or may not be High Court. 3. On question of law/fact. 4. Petty cases – The amount of decree Rs. 10,000/- , appeal lies only on question of law. [Section 96 (4)] 5. The Appellate Court can decide the question of fact. 6. Period of limitation

1. From a decree passed by the Appellate Court in exercising an appellate jurisdiction. 2. The second appeal lies only in the High Court. 3. Only on substantial question of law. 4. In petty cases, no second appeal lies. 5. In second appeal, the Appellate Court can decide question of fact only in exceptional circumstances. (Section 103) 6. Period of limitation: 90 days (to High Court). 7. No such appeal maintainable against the decision of a Single Judge (Section 100 A).

(to High Court) 90 days

(other courts) 30 days

7. A letters patent appeal is maintainable against the decision of Single Judge to Double Judge Bench of High Court. (5) Second Appeal and Revision: Second Appeal

Revision

1. On substantial question of law to High Court. 2. Only under Section 100 to High Court. 3. The High Court can interfere with a decree passed by the lower Appellate Court if it is contrary to law. 4. Question of fact can be decided in exceptional cases. (under Section 103)

1. Jurisdictional error to High Court. 2. It lies where appeal does not lie. 3. The High Court cannot interfere with an order passed by the subordinate court, if it is within its jurisdiction even if it is legally wrong. 4. Only jurisdictional fact i.e. legal fact can be decided. 5. The High Court may decline to interfere in

5. The High Court cannot refuse to grant relief merely on equitable grounds.

revision if it is satisfied that substantial justice has been done.

(6) Appeal and Reference: Appeal

Reference

1. In the suitor-right. 2. To superior court. 3. Ground: error of law or fact or both. 4. During the pendency of the suit, it cannot be filed. It is filed only after disposal of the suit/application.

1. In the subordinate Judge. 2. To High Court only. 3. Ground: reasonable doubt on any question of law. 4. During pendency of the proceeding.

(7) Appeal and Review: Appeal

Review

1. To superior court. 2. mistake of fact or law or of both and second appeal on substantial question of law. 3. Second appeal on substantial question of law. 4. By different Judges.

1. To same court which decided the case. 2. Grounds: (a) mistake apparent on the record, (b) discovery of new evidence etc. 3. No second review: No review of reviewed matter. 4. By the same judge.

(8) Review and Revision: Review

Revision

1. By the same Judge. 2. Grounds: mistake apparent on record or discovery of new evidence. [Section 114, Order 47] 3. On the application of aggrieved party. 4. It can be exercised even when appeal lies to High Court. 5. An order granting review is appealable.

1. By the High Court. 2. Grounds: Jurisdictional error [Section 115]. 3. On the petition of aggrieved party/suo motu. 4. Only when appeal does not lie to High court. 5. An order passed in exercise of revisional jurisdiction is not appealable.

UNIT VIII EXECUTION

Execution of Decree or Order: Execution of Decree or Order is one of the most important stages for the judicial redressal. Sections 36 to 74 of the Code and Order 21 of the code contain the provisions relating to the Execution of Decree. Section 36 of the code states that the provisions of this Code relating to the Execution of Decrees including provisions relating to payment under a decree shall, so far as they are applicable, be deemed to apply to the execution of orders including payment under an order. It means Provisions of Execution of Decree = Execution of Order. Section 38 states that a decree may be executed either – - by the Court which passed it, or - by the Court to which it is sent for execution. Transfer of Decree: Section 39 states that the Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court of competent jurisdiction, if – 1. the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or 2. such person has not property sufficient to satisfy such decree within the local limits of the jurisdiction of the Court which passed the decree and has property within the local limits of the jurisdiction of such other Court, or 3. the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or 4. the Court which passed the decree considers for any other reason, which it shall record in writing, that the decree should be executed by such other Court. The Court which passed a decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.

Powers of Court in Executing Transferred Decree [Section 42]: The Court executing a decree sent to it shall have the same powers as if it

had been passed by itself in executing such decree. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself. Powers of the Court – 1.

power to send the decree for execution to another Court under section 39; 2. power to execute the decree against the legal representative of the deceased judgment-debtor under section 50; 3. power to order attachment of a decree. Powers of Court to enforce Execution: Section 51 of the code provides Powers of Court to enforce execution. Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree – 1. 2.

by Delivery of any Property specifically decreed; by Attachment and Sale or by sale without attachment of any property;

3.

by Arrest and Detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section; 4. by Appointing a Receiver; or 5. in such other manner as the nature of the relief granted may require. Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied – 1)

that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree, i)

is likely to abscond or leave the local limits of the jurisdiction of the Court, or ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property or committed any other act of bad faith in relation to his property, or 2) that the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or 3) that the decree is for a sum for which the judgment-debtor was bound in a

fiduciary capacity to account.

UNIT IX MISCELLANEOUS Caveat: Section 148A of the code contains the provisions relating to the Right to lodge a Caveat. General meaning of the word Caveat means Let him beware. The person who files the caveat is called as Caveator. Caveat is considered to be a precautionary measure which is generally taken against the grant of letter or administration or probate. But now it is also been extended to other civil proceedings. Where an application is expected to be made, or has been made, in a suit or proceedings instituted, or about to be instituted, in a court any person claiming a right to appear before the court on the hearing of such application may lodge caveat in respect thereof. Where a caveat has been lodged, the person by whom the caveat has been lodged shall serve the notice of the caveat by registered post acknowledgment due, on the person by whom the application has been, or is expected to be made. Where a caveat has been lodged, any application is filed in any suit or proceeding, the court shall serve a notice of the application on the caveator. Where, a notice of any caveat has been served on the applicant he shall furnish the caveator with a copy of the application made by him and also with copies of any paper of document which has been or may be filed in support of the application but only at the expense of the caveator. Such caveat shall not remain in force after the expiry of Ninety days from the date on which it was lodged. Garnishee Order: Garnishee means a judgment-debtor’s debtor. Garnishee is a person who is liable –  to pay any debt or  to deliver an account of any movable property not in judgment-debtor’s possession, to the judgment debtor. Garnishee Order means an order against the judgment-debtor’s debtor (garnishee) by the Court requiring him – to pay the amount due in the Court or deliver the property deliverable by him in the Court Rule 46A to 46I of Order 21 deals with the provisions pertaining Garnishee Order. These rules have been inserted in CPC in the year 1976 by way of amendment. This provision has been inserted in the code for providing

protection to the judgment-creditor or decree-holder. Notice [Rule 46A]: The Court may in the case of a debt (other than a debt secured by a mortgage or a charge) issue notice to the garnishee liable to pay such debt, which has been attached under rule 46, calling upon him either –  to pay into Court the debt due from him to the judgment-debtor or so much thereof as may be sufficient to satisfy the decree and costs of execution, or  to appear and show cause why he should not do so. The court may issue notice only on the application of the attaching creditor. An application referred as above shall be made on Affidavit verifying the facts alleged and stating that, in the belief of the deponent, the garnishee is indebted to the judgment-debtor.

 

Where the garnishee pays in the Court the amount – due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of the execution,

the Court may direct that the amount may be paid to the decree-holder towards satisfaction of the decree and costs of the execution. Order Against Garnishee [Rule 46B]: Where the garnishee does not – 



forthwith pay into Court the amount due from him to the judgment-debtor or so much thereof as is sufficient to satisfy the decree and the costs of execution, and appear and show cause in answer to the notice,

the Court may order the garnishee to comply with the terms of such notice, and on such order, execution may issue as though such order were a decree against garnishee. Trial of Disputed Questions [Rule 46C]: Where the garnishee disputes liability, the Court may order that – - any issue or question necessary for the determination of liability shall be tried as if it were an issue in a suit and upon the determination of such issue shall make such order or orders as it deems fit. Provided that if the debt referred above is in respect of a sum of money beyond the pecuniary jurisdiction of the Court, the Court shall send the execution case to the Court of the District Judge and thereupon the Court shall deal with it in the same manner as if the case had been originally instituted in that Court.

Procedure where Debt belongs to Third Person [Rule 46D]: Where it is suggested or appears to be probable that –  the debt belongs to some third person, or  any third person has a lien or charge on, or other interest in, such debt, the Court may order such third person to appear and state the nature and particulars of his claim, if any, to such debt and prove the same. Order as regards Third Person [Rule 46E]: After hearing such third person and any person or persons who may subsequently be ordered to appear, or where such third or other person or persons do not appear when so ordered, the Court may make such order with respect to the lien, charge or interest, as the case may be, of such third or other person or persons as it may deem fit and proper. Payment by Garnishee to be Valid Discharge [Rule 46F]: Payment made by the garnishee –  on notice or  under any such order as aforesaid shall be a valid discharge to him as against the judgment-debtor. Costs [Rule 46G]: The costs of any application made as above and of any proceedings arising therefrom or incidental thereto shall be in the discretion of the Court. Appeal [Rule 46H]: An order made under Rule 46B, Rule 46C or Rule 46E shall be appealable as a decree. Application to Negotiable Instruments [Rule 46I]: The provisions of rules 46A to 46H (both inclusive) shall, so far as may be, apply in relation to Negotiable Instruments attached under rule 51 as they apply in relation to debts. RATEABLE DISTRIBUTION OF ARREST (SECTION 73) Section 73 provides a speedy mode of execution of several money decrees obtained against the same judgment debtor by rateably distributing the arrest held by a court against the rival decree-holders without the necessity for separate proceedings.  Government debt is to be given priority over the private debts unless the amount to taken away by a private person before the Government applies. [Section 73 (3)]

Illustration: A obtains a decree against M for Rs. 10,000 and applies to the court for execution of his decree by attachment and sale of M's property. M's property is attached. Late, B also obtains a decree against M in the same court for Rs. 5,000/- and applies for execution of decree by attachment of M's property. The property is thereafter sold by the court in execution of A's decree for Rs. 7,500/-. The said amount of Rs. 7,500/- will be ratably distributed between both the decree-holders. A will be paid Rs. 5,000/- and B will be paid Rs. 2,500/-.  An order passed under Section 73 is not appealable as a decree. A revision application can be filed. The doctrine of Crown's debt: Section 73 (3) (priority of Government's debt) is based on the English Common Law doctrine that Crown's debt are entitled to priority.

RESTITUTION (SECTION 144) Restitution: An act of restoring a thing to its proper owner.  It means restoring to a party the benefits which the other party has received under a decree subsequently held to be wrong.  An application under Section 144 is an application for execution of a decree and is governed by Article 136 of the Limitation Act, 1963. The period of limitation is 12 years and it will start from the date of the Appellate decree/order.  Under Section 149, an application for restitution could be made by a party when a decree/oder is varied or reversed in appeal, revision, etc., or is set aside or modified in a suit.  The doctrine of restitution is based on the maxim actus curiae neminem gravabit i.e. the act of court shall harm no one. Jai Behram vs. Kedar nath, AIR 1922 PC: It is the duty of the court under Section 144 to place the parties in the position which they would have occupied, but for such decree or part thereof as has been reversed. The court's power is not discretionary but obligatory. Conditions (Section 144): 1) The restitution sought must be in respect of the decree/order (erroneous judgment) which had been varied or reversed; 2) The party applying for restitution must be entitled to benefit under the reversed decree/order, and

3) The relief claimed must be property consequential to the reversal or variation of the decree/order. Illustrations: a) A obtains a decree against B for possession of immovable property and in execution of the decree obtains possession thereof. The decree is reversed in appeal. B is entitled to restitution, even though there is no direction for restitution in the decree of appellate court. b) A obtains a decree against B for Rs. 5,000 and recovers the amount in execution. The decree is reversed in appeal. B is entitled to a refund of the amount together with interest up to the date of repayment, though the appellate decree may be silent as to interest. c) A obtains a decree against B and recovers the amount due under the decree by execution. Subsequently, it was found that B was dead at the time of institution of the suit. The decree is a nullity, and the court having levied execution while there was legally no decree at all, has inherent power to rectify the mistake and order restitution.  A party entitled to restitution must be a party to the decree/order varied or reversed. Restitution can be granted not only against the party to the litigation, but also against his legal representatives e.g. transferee pendente life, attaching-holders etc. However, Section 144 does not apply to sureties.  Where restitution can be claimed by an applicant under Section 144, no separate suit shall be brought for such relief. The object of the doctrine is to shorten litigation and to provide speedy relief.  The determination of a question under Section 144 is a decree and thus,appealable.

UNIT X THE LIMITATION ACT, 1963 Introduction – The Limitation Act, 1963 is basically a procedural law. It does not create a right in favour of a party. It is an exhaustive code. The Preamble of the Act indicates that the Limitation Act was passed to consolidate and amend the law for the limitation of suits and other proceedings and for purposes connected therewith. There are 31 sections and 1 schedule in the Act. The schedule contains 137 Articles. In those Articles, the limitation is prescribed for each class of disputes relating to civil nature and also to appeals, revisions, review etc. The main Objects behind this Act is – a) To put an end to litigation. “Interest republicae ut sit fines litium” i.e it is in the interest of the state there should be an end to a litigation. b) To reduce the number of suits, otherwise it will increase to ten folds or more. c) It might cause hardship on the judiciary. The main principle behind this Act is “Vigilantibus Non Dormantibus Jura Subvenient” which means “The law helps those who are vigilant and not those who sleep over their rights” “Where once time has begun to run no subsequent disability or inability to sue stops it.” As per Section 9 of the Limitation Act, once time has begun to run, no subsequent disability, or inability to institute a suit or make an application stops it. The wordings of Section 9 [Continuous Running of Time] states as, “Where once time has begun to run, no subsequent disability or inability to institute a suit to make an application stops it: Provided that where Letters of Administration to the estate of the deceased creditor have been granted to his debtor, the running of the period of limitation for the recovery of the debt is suspended while the administration continues.” Principle: The principle underlying under this section is the same as that under the English law. This principle has been borrowed from English law. “Time when once it has commenced to run in any case will not cease to do so by reason of any subsequent event. Generally, when any of the statutes of limitation have begun to run, no subsequent disability will stop this running.” – Banning on Limitation (3rd Edn.) “When the time has once begun to run, it will continue to do so even should subsequent events occur which render it an impossibility that an action should be

brought.” – Darby and Bosanquet on Limitation (2nd Edn.). Meaning of Disability or inability to sue: Disability is want of Legal Qualification to act. This disability is the state of being a minor, insane or an idiot. Inability is want of physical power to act. Illness, poverty, etc., are instances of inability. The rule as to the continuous running of time is one of the fundamental principles of the law of limitation. This rule lays down that where once time has begun to run, it runs continuously and without any breaks or interruptions until the entire prescribed period has run out, and no disability or inability to sue occurring subsequently to the commencement will stop its running. This fundamental principle applies to suits as well as applications. This principle may seem a little hard at some times, as it may be impossible to file a suit during the last few days of the period by reason, for instance, of – the plaintiff falling severely ill, or – becoming insane or – being called away elsewhere on some pressing business, or – by reason of circumstances which may be beyond the control of the plaintiff, such as a declaration of war with the country of which the plaintiff is a subject, or – the sudden death of the defendant and the non-appointment (before the period is over) of a legal representative who could be sued. But the plea of limitation, being devised for promoting diligence and discouraging laches or indolence of any sort, requires that a person should be diligent and file a suit in respect of his right as, quickly as possible, and not allow matters to slide until a dangerously late hour when the prescribed period is on the point of running out. If he does so procrastinate, he runs the risk of something or other happening at the last moment which may prevent him from filing his suit before period has actually run out. The principles of Section 9 will, therefore, he strictly applied, and no exceptions (other than those which the Act itself prescribes and which will be dealt with presently) can be recognised or allowed to be made by any court. Proviso & Its Principle – The principle of the proviso is when the right to sue and the right to be sued vest and unite by the act of law in the same person, i.e., when the same person becomes the hand to receive and the hand to pay, the running of the statute is suspended during such union of rights. When letters of administration to the estate of the deceased creditor have been granted to his debtor, the time between the grant of the letters of administration and the completion of the administration for the estate is excluded in computing the period of limitation for a suit to recover the debt.

Exceptions: The rule laid down in section 9 is however a general rule and it is subject to some exceptions. Thus the running of time will be suspended in following eight cases – 1) When letters of administration to the estate of a creditor have been granted to his debtor, the running of time in favour of such debtor is suspended for so long as the administration continues. This is in order to prevent an administrator from taking advantage of his office in delaying the payment of a debt he himself owes to the estate, till the prescribed period has expired. [Proviso to section 9] 2) In computing the period of limitation prescribed for a suit, an appeal, an application for leave to appeal and an application for a review of judgment, the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed, (and when a decree is appealed from or sought to be reviewed the time required for obtaining a copy of the judgment also), is to be excluded. Likewise, in the case of an application to set aside an award, the time required for obtaining the copy of the award is also to be excluded. (Section 12) 3) In computing the period of limitation for a suit or appeal, the time taken for prosecuting an application for leave to sue or appeal as a pauper is to be excluded, if such leave is necessary. (Section 13) 4) When the plaintiff has been prosecuting another civil proceeding bona fide in a Court without jurisdiction. (Section 14) 5) When an injunction or order has been obtained to stay the institution of a suit. [Section 15(1)] 6) When notice has been given or consent or sanction of Government is to be obtained before the institution of a suit in accordance with law, the limitation will be suspended during the period of notice or consent or sanction. [Section 15(2)] 7) In a suit for possession by a purchaser at an execution sale, limitation will be suspended during the time for which the proceeding to set aside the sale has been prosecuted. [Section 15(4)] 7) When the defendant is absent from India and the territories beyond India under the administration of the Central Government. [Section 15(5)]

Limitation as to Suits against Trustees and their Representatives:

Section 10 of the Limitation Act, 1963 provides for suits against trustees and their representatives. It lays down that, “Irrespective of the above provisions of the Act, no suit against –  a person in whom property has become vested in trust for any specific purpose or  legal representatives or  assigns (not being assigns for valuable consideration) will be barred by any length of time, where such suit is for the purpose of following in his or their hands such property or proceeds thereof or for an account of such property or proceeds. It is also clarified that for the purposes of this section, any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment is to be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.” Scope: The words of this section mean that –  when a trust has been created expressly for some specific purposes or object, and  property has become vested in a trustee upon such trust, the person who is beneficially interested in that trust may bring a suit against such trustee to enforce that trust at any distance of time without being barred by the law of limitation. As a result of this section, an apparently fraudulent trustee who has put trust money into his own pocket cannot escape by reason of lapse of time. Section 10 applies to suits by beneficiaries only. It has been held that the section applies only where a trustee is sued by cestui que trust. If other persons claim the trust property contrary to the provisions of the trust deed, Section 10 does not apply, and against them limitation runs in favour of the trustee.

Essentials of Suits against Trustees & their Representatives: In order that a suit may not be barred by any length of time it is necessary that – 1) There must be trust for specific purpose, i.e., express trust; 2) The property must be vested in the trustee, or his legal representatives or assigns (without valuable consideration); 3) The suit must be to follow trust property (or its proceeds) or for accounts, of such property in the hands of trustee or his representative or assigns.

Section 10 is to be used only against those persons “in whom property has become vested in trust for a specific purpose”. And, a specific purpose is a purpose that is actually and specifically defined in the terms in which the trust is created or a purpose which from the specified term can be certainly affirmed. Therefore, where there is a trust for a specific purpose, whether under a deed, will or other instrument even a trustee de son tort (which term is explained below) would fall within this section. And, on the other hand, all persons who hold a fiduciary position, such as agents, managers, factors or benamidars, are not trustees. Who are Trustees: An executor, a partner, an agent, a director of a company, a guardian or legal advisor has a fiduciary character, but none of these persons is necessarily a trustee in the strict sense of the word. Nor is an administrator as such a trustee under this section. Similarly, one co-sharer is not an express trustee for another, and a right to mesne profits of one sharer against other sharers would not be saved by section 10. Fiduciary relation is not the only characteristic of a trustee within the meaning of this section. An agent whose duty it is to remit all moneys received to the principal is not an express trustee. But, if he is entrusted with funds for a specified purpose, e.g., the purchasing of land or stock, or being employed in any other particular manner, he is treated as an express trustee. There is also no fiduciary relation between a banker and a customer ordinarily, and the usual relationship between them is merely that of an ordinary debtor and creditor. Trustee De Son Tort: When a person assumes, with or without consent, to act in a fiduciary relation with regard to trust property, or knowingly assists a trustee in a fraudulent or dishonest disposition of property, he becomes constructively, and will be treated by the Court as, an express trustee, and the benefit of this section can be claimed against such a person. If a third party or an outsider takes upon himself the administration of the trust property, he becomes a trustee de son tort and is bound to account as if he were a rightful trustee, and limitation will not run in his favour. He cannot discharge himself from that trust by appealing to the lapse of time. A trustee de son tort cannot be permitted to plead limitation. Problem: A, claiming to be an heir of B who has made a trust deed of his properties, files a suit against the trustees 15 years after the death of the settler for possession of the trust estate, alleging that the trust deed is void. Is the suit in time?

Answer: A is not claiming under any of the provisions of trust deed to recover any property. A person who claims to be an heir of the settler and claims to be entitled to the property on the ground that the trust deed is void is not a person claiming against the trustee holding the property for an express purpose. To such a case, S. 10 of the Limitation Act has no application. A's suit, therefore, is time-barred.

Provisions in regard to Computation of Period of Limitation: Part III of the Limitation Act, 1963 consisting of Section 12 to 24 deals with the Computation of Period of Limitation. Section 12 to 24 explains what days or periods have to be excluded from calculation of period of limitation. The parties need not pray or apply to the court for the exclusion of the period. It is the duty of the court to exclude such time. 1) Exclusion of time in legal proceedings: Section 12 of the Act states that in computing the period of limitation for any Suit, Appeal or Application, the day from which such period is to be reckoned, shall be excluded. In computing the period of limitation for an Appeal or an Application for Leave to Appeal or for Revision or for Review of a judgment, the –  day on which the judgment complained of was pronounced and  time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded. Where – a decree or order is appealed from or – sought to be revised or reviewed, or – where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgment on which the decree or order is founded shall also be excluded. In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded. Explanation: In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare decree or order before an application for a copy thereof is made shall not be excluded. 2) Exclusion of time in cases where Leave to Sue or Appeal as a Pauper is Applied for: Section 13 states that in computing the period of limitation prescribed for any suit or appeal in any case where an Application for Leave to

Sue or Appeal as a Pauper has been made and rejected, the time during which the applicant has been prosecuting in good faith his application for such leave shall be excluded. 3)Exclusion of Time of Proceeding Bona fide in court Without Jurisdiction: Section 14 states that in computing the period of limitation for any suit or any application the time during which the plaintiff or applicant has been Prosecuting, with Due Diligence another Civil Proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding, relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it. Explanation: For the purposes of this section – a) in excluding the time during which a former civil proceeding was pending, the day on which the proceeding was instituted and the day on which it ended shall both be counted; b) a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding; c) misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

  

3) Exclusion of time in certain other cases: Section 15 states that in computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.

In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the any law for the time being in force, the period of such notice or the time required for obtaining such consent or sanction shall be excluded. In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made and the date of receipt of the order of the Government or other authority shall both be counted.

In computing the period of limitation for any suit or application for execution of a

decree by –  any Receiver or Interim Receiver appointed in proceedings for the adjudication of a person as an insolvent or  by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of 3 months from the date of appointment of such receiver or liquidators, as the case may be, shall be excluded. In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded. In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded. 4) Effect of Death on or before the Accrual of the Right to Sue: Section 16 states that where a person –  who would or against whom, if he were living, have a right to institute a suit or make an application dies before the right accrues, or  where a right to institute a suit or make an application accrues only on the death of a person, or where a right to institute a suit or make an application against any person accrues only on the death of a person the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting or defending such suit or making or receiving such application. 5) Effect of fraud or mistake: Section 17 of the Act states that where, in the case of any suit or application for which a period of limitation is prescribed by this Act – a) the suit or application is based upon the fraud of the defendant or respondent or his agent; or b) the knowledge of the right or title on which a suit or application is founded is concealed by the fraud of any such person as aforesaid ; or c) the suit or application is for relief from the consequences of a mistake ; or d) where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him; the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production. Where a judgment–debtor has by fraud or force, prevented the execution

of a decree or order within the period of limitation the court may, on the application of the judgment–creditor made after the expiry of the said period extend the period for execution of the decree or order. Provided that, such application is made within 1 year from the date of the discovery of the fraud or the cessation of force. 8) Valid Acknowledgment: Section 18 states that where, before the expiration of the prescribed period for a suit or application in respect of any property or right – 

an acknowledgment of liability in respect of such property or right has been made in writing –  signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed. Where the writing containing the acknowledgment is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the Indian Evidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received. 9) Effect of Payment on account of Debt or of Interest on Legacy: Section 19 states that where payment on account – of a debt or – of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorized in this behalf, a fresh period of limitation shall be computed from the time when the payment was made. 10)Effect of Acknowledgment or payment by another person: Section 20 states that the expression “agent duly authorized in this behalf” in sections 18 and 19 shall, in the case of a person under disability, include his lawful guardian, committee or manager or an agent duty authorized by such guardian, committee or manager to sign the acknowledgment or make the payment. An acknowledgment signed or a payment made in respect of any liability by person or by the duly authorized agent of, any limited owner of property who is governed by Hindu law, shall be a valid acknowledgment or payment. Where a liability has been incurred by, or on behalf of a Hindu undivided family as such, an acknowledgment or payment made by, or by the duly authorized agent of, the manager of the family for the time being shall be deemed to have been made on behalf of the whole family.

11) Effect of Substituting or Adding New Plaintiff or Defendant: Section 21 states that where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall be deemed to have been instituted when he was so made a party. Provided that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith, it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date. 12)Continuing Breaches and Torts: Section 22 states that in the case of - continuing breach of contract - continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort continues. 13)Suits for Compensation for acts not actionable without Special Damage: Section 23 states that in the case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results. 14)Computation of time mentioned in instruments: Section 24 states that all instruments shall for the purposes of this Act be deemed to be made with reference to the Gregorian calendar. Short Notes: A)

Limitation & Latches: The general meaning of Limitation is to put an end to litigation and of Latches negligence of slackness. The doctrine of limitation is specifically stated in the law whereas the doctrine of latches is nowhere stated in any law. The doctrine of limitation is based on public policy whereas the doctrine of latches is based on justice and equity.

A suit is dismissed if it is not brought within the period of limitation but there is no such case in latches. There is no fixed time in latches. In general, the doctrine of limitation can be pleaded against plaintiff. But, doctrine of latches can be pleaded against either of the parties. In the doctrine of limitation, it is immaterial for the plaintiff to show his ignorance or knowledge with respect to his right. But, in doctrine of latches, it is necessary to show that the plaintiff had sufficient knowledge of the fact constituting his title to the relief, and that he knowing forbore to assert his rights.

B)

Limitation & Prescription: The law of limitation prescribes the time after which a suit or other proceedings cannot be instituted in a Court of law. The law of prescription prescribes the time at the expiration of which some substantive rights may be acquired or may be extinguished. The law of prescription is of twofold aspects, one which creates a right and other which extinguishes a right whereas the law of limitation only extinguishes a right.

The law of limitation does not destroy the right, it only bars the remedy. The law of prescription extinguishes the remedy. The law of limitation is a part of procedural or adjective law whereas the law of prescription is a part of substantive law. The law of limitation only bars the judicial remedy it does not bar the extra-judicial remedies i.e. outside the court of law. The law of prescription bars both i.e. judicial as well as extra-judicial remedies. C) Acquisitive Prescription: Section 25 of the Act provides that where the Access and Use of Light or Air to and for any building have been – 1) Peaceably enjoyed, 2) as an easement, 3) and as of right, 4) without interruption, and 5) for 20 years (30 years in the case of property belonging to the Government), then such right to such access and use of light or air becomes absolute and indefeasible. Where any Way or Watercourse or the Use of any water or any other easement (whether affirmative or negative), has been – 1) peaceably and openly enjoyed, 2) by any person claiming title thereto 3) as an easement, 4) and as of right, 5) without interruption, and 6) for 20 years (30 years in the case of property belonging to the government), then the right to use such way, watercourse, use of water or other easement becomes absolute and indefeasible. D)

Extinctive Prescription: Section 27 of the Act provides about Extinctive Prescription. It states about the Extinguishment of right of property. “At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be

extinguished.” This section lays down a rule of substantive law. It declares that after the lapse of the period provided by this enactment, the right itself is gone and the title ceases to exist, and not merely the remedy. If an owner, whose property is encroached upon, suffers his right to be barred by the law of limitation the practical effect is the extinction of his title in favour of the party in possession. As between private owners contesting inter se the title to lands, the law has established a limitation of 12 years, after that time it declares not simply that the remedy is barred, but that the title is extinct in favour of the possessor. Under this section, not only the ownership to one person is extinguished, but an absolute ownership is also acquired by the other persons in adverse possession. E)

Condonation of Delay: Section 5 of the Act contains the provisions relating Condonation of delay. It states that, “Any Appeal or any Application, other than an application under any of the provisions of Order 21 of the Code of Civil Procedure, 1908 may be admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.

Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.” This section applies to both Civil as well as Criminal proceedings. This provision is not applicable to a Fresh Suit. If either the appellant or the applicant satisfies the court that there was a Sufficient Cause for not preferring either the appeal or the application, then the court may admit such delay. The expression Sufficient Cause means a cause beyond the control of the party. F)

Legal Disability: Section 6 of the Act specifies about the Legal Disability.

Where a person entitled to institute a suit or make an application for the execution of a decree is, at the time from which the prescribed period is to be reckoned - a minor or - insane, or - an idiot,

he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefore in the third column of the Schedule. (Sub-sec.1) Where such person is, at the time from which the prescribed period is to be reckoned – - affected by two such disabilities, or - where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the time so specified. (Sub-sec.2) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified. (Sub-sec.3) Where the legal representative referred to above is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub-section (1) and (2) shall apply. (Sub-sec.4) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died. (Sub-sec.5) Disability of one of several persons: Section 7 of the Act states that where one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and – - a discharge can be given without the concurrence of such person, time will run against them all; but, - where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.

TOPICS FOR ASSIGNMENT Sr. No. 1. 2. 3. 4. 5. 6. 7. 8.

PARTICULARS

NAME OF STUDENT

Kinds of Jurisdiction of Civil Court Suit of Civil Nature Res judicata Res Sub judice Place of Suing Foreign Judgment Representative Suit Importance & Essential rules of

9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21.

Pleadings Plaint Written Statement Summons Set Off and Counter Claims Effect of Non- Appearance of Parties Parties to Suit Attachment before Judgment Arrest before Judgment Commission Interim Injunction Receiver Withdrawal and Compromise of Suit Summoning & attendance of

22.

Witnesses Effect of Death & insolvency of

23. 24. 25.

parties to a Suit SPECIAL SUIT Suits by or against Government Suits by or against Corporations Suits by or against Minors

26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36.

Lunatics, etc. Interpleader Suits. Suit by Indigent Persons Suits relating to Public Trusts. Mortgage Suits Suits for foreclosure & sale Suit for redemption Summary Suit Judgment Decree Ex-parte Decree & Orders Meaning & Essentials of

&

First

37. 38.

Appeal Cross Appeals & Cross Objections Duties and Powers of Appellate

39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50. 51. 52.

Court Letters of patent Appeal Appeal to Supreme Court Second Appeal Appeal from Orders Reference Review Revision Application for Execution of Decree Stay of Execution Arrest & Detention in Execution Attachment of Property in Execution Garnishee Order Adjudication of Claims in Execution Sale of moveable property in

53.

Execution Sale of immoveable property in

54.

Execution Delivery of Property – Rules relating

55.

to Rules

56.

Assets in Execution Proceedings Conditions & manner of Transfer of

57. 58. 59. 60. 61.

Cases Restitution of Suits Caveat Damages in Civil Litigation Inherent powers of courts Limitation period and

regarding

commutation

Distribution

of

its

IMPORTANT CASES FOR DISCUSSION/ASSIGNMENT

Sr.

IMPORTANT CASES FOR DISCUSSION/ASSIGNMENT

CITATION

1. 2.

Ghanshyam Das Gupta V/s Anant Kumar Sinha Shaikh Salim Haji Abdul V/s Kumar & Ors.

3.

Kihoto Hollohan V/s Zachillhu

AIR 1991 SC 2251 AIR 2005 SC 6031 1992 Supp (2) SCC

No.

4. 5. 6.

HP Horticultural Corporation V/s United India Assurance Co. Venkatesh Iyer V/s Bombay Hospital Trust M P Laghu Udyog Nigam V/s Gwalior Steel

651 AIR 2000 HP 11 AIR 1998 Bom 373 AIR 1992 MP 215

7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30.

PMA Metropolitan V/s Moran Marthoma Raghunath V/s Janardhan Sri Sinna Ramanuja Jeer V/s Ranga Ramanuja

AIR 1995 SC 2001 (1891) 15 Bom 599 AIR 1961 SC 1720

Jeer Union Bank of India V/s Sunpac Corporation State of Assam V/s Union of India Savitridevi V/s District Judge, Gorakpur Mumbai International Airport Pvt. Ltd. V/s

AIR 1986 Bom 353 (2010) 10 SCC 408 (1999) 2 SCC 577

Regency Convention Centre & Hotels Kuldip Singh V/s Ganpatlal Van Vibhag Karmachari GNSS V/s R Chandan Hindalco Industries V/s Union of India State of Maharashtra V/s Survodaya Industries Hakam Singh V/s Gammom (India) Ltd. Narayanan V/s Kuchpennu Bank of India V/s Mehta Bros. Kiran Singh V/s Chaman Paswan Shankar Sitaram V/s Balkrishna Sitaram Brunsden V/s Humphrey Arjunlal Gupta V/s Mriganka Mohan Mohd Kalil V/s Mahbub Ali Razia Begum V/s Sahebzadi Anwar Begum T Arivendam V/s T V Satyapal & Anr Meenakshi Sunderam Chettiar V/s Sunderam

(1996) 1 SCC 243 AIR 2011 SC 41 (1994) 2 SCC 594 AIR 1975 Bom 197 AIR 1971 SC 740 AIR 1954 T&C 10 AIR 1984 Del 18 AIR 1954 SC 340 AIR 1954 SC 352 (1884) 14 QBD 141 AIR 1975 SC 207 AIR 1949 PC 78 AIR 1958 SC 886 AIR 1977 SC 2421

Chettiar P T Thomas V/s Thomas Jacob Salem Advocate Bar Association V/s Union of

AIP 2005 SC 3575

31. 32. 33. 34.

India M Manamutti V/s State of Karnataka Ballepanda P Poonacha V/s K M Madeppa Punjab National bank V/s Indian Bank Sati Vijaykumar V/s Tota Singh

35.

Ram Mohan Rao V/s Sridevi Hotel Pvt Ltd.

36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49.

Uttam Singh Duggal V/s Union Bank of India Dwarkabai V/s Rajkunwarbai Ajay Mohan V/s H N Rai Abdul Rahman V/s Parsonybai State Bank of India V/s Chandra Govindaji Kehar Singh V/s State (Delhi Administration) Chandrasekhar Pattjoshi V/s Jogendra Pattjoshi Kalyan Singh V/a Vakil Singh Satnam Singh V/s Surendra Kaur Lucy Kuchvareed V/s P Mariappa Gounder Bimalkumar V/s Shankuntala Devi Central Bank of India V/s Ravindra Pedda Rangaswami V/s State of Madras Bhanukumar Jain V/s Archana Kumar

AIR 2010 SC 3109

AIR 1979 SC 989

(2005) 6 SCC 344 AIR 1974 SC 1707 (2008) 13 SCC 179 AIR 2003 SC 2284 (2006) 13 SCC 353 AIR 2003 NOC 345 (AP) (2000) 7 SCC 120 AIR 1976 MP 214 AIR 2008 SC 804 AIR 2003 SC 718 (2000) 8 SCC 532 (1998)3 SCC 609 AIR 2004 Ori 131 AIR 1990 MP 295 (2009) 2 SCC 562 (1979) 3 SCC 150 (2012) 3 SCC 548 (2002) 1 SCC 367 AIR 1953 Mad 583 AIR 2005 SC 626

50. 51.

Vareed Jacob V/s Shoshama Gee Varghese Fargo Fright Ltd. V/s Commodities Exchange Corporation

52.

Shyam Singh V/s Collector of Hamipur

53. 54. 55. 56.

C S Mani V/s Chinnaswami Naidu TVR Fund V/s Official Receiver Virappa Chettiar V/s Pallaniappa Chettiar Madhukar V/s Sangram Pherozshah Gandhi V/s H M Seervai, AG,

57. 58. 59. 60. 61. 62. 63. 64. 65. 66. 67. 68. 69. 70. 71. 72. 73. 74. 75.

Maharashtra Swami Shankaranand V/s Mahant Sri Sadguru Saranand H. Dohil Constructions Co. V/s Nahar Exports

AIR 2004 SC 3992 AIR 2004 SC 4109 (1993) Supp 1 SCC 693 AIR 2010 SC 3660 2009 (3) KLT 508 AIR 1973 Mad 313 AIR 2001 SC 2171 AIR 1971 SC 385 AIR 2008 SC 2763 2015 (1) SCC 680

Ltd. Central bank of India V/s State of Gujarat MCD V/s International Security and Intelligence

AIR 1987 SC 2320

Agency Shashidhar V/s Ashwani Uma Mathad Malayalam Plantations V/s State of Kerala Venkatramaiah V/s Sitarama Reddy Ratnamurthy V/s Ramappa Fuerst Day Lawson Ltd. V/s Jindal Export Ltd. Hemalata Panda V/s Sukuri Dibya Major S S Khanna V/s Brig. F J Dhillon Ajit Singh V/s Jitram Board of Control for Cricket V/s Netaji Cricket

AIR 2015 SC 1139 AIR 2011 SC 559 AIR 1963 SC 1526 2011 (1) SCC 158 2011 (8) SCC 333 2000 (2) SCC 218 AIR 1964 SC 497 AIR 2009 SC 199

Club Ramrameshwari Devi V/s Nirmala Devi Trupati balaji V/s State of Bihar Dudh Nath Pandey V/s S C Bhattasali Workmen V/s Board of Trustees, Cochin Port Trust Dr. Subramaniam Swamy V/s Ramakrishna Hegde

AIR 2003 SC 1515

AIR 2005 SC 592 (2011) 8 SCC 249 AIR 2004 SC 2351 (1989) 3 SCC 287 (1978) 3 SCC 119 AIR 1990 SC 113