Code of Civil Procedure, 1908: History

1 Code of Civil Procedure, 1908
Introduction
The Code of Civil Procedure, 1908 is an Act to consolidate and amend the laws relating to the procedure
of the Courts of Civil Judicature. It is an adjective law. It does not take away the rights of any person.
This Act is sub-divided into 158 Sections and a Schedule which contains 51 Orders and rules. Further,
this Act was enacted to regulate every action of Civil Courts in India. In the absence of any specific
provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special
or local law now in force or any special jurisdiction or power conferred, or any special form of procedure
prescribed, by or under any other law for the time in force. In particular and without prejudice to the
generality of the proposition contained in sub-section (1) nothing in this Code shall be deemed to limit
or otherwise affect any remedy which a landholder or landlord may have under any law for the time
being in force for the recovery of rent of agricultural land from the produce of such land.
History
The Code of Civil Procedure, 1908 was passed by the Legislature and assent of Governor General of
India was given on 21 March 1908. It shall come into force on 1 January 1909.
In 1858, The Code on Civil Procedure was introduced, i.e., The Code of Civil Procedure, 1858.
In 1877, The Code of Civil Procedure Code, 1877 was introduced which replaced the earlier Act of 1858.
In 1882, The Code of Civil Procedure Code, 1882 was introduced.
Further in 1908, The Code of Civil Procedure, 1908 was enacted to consolidate and amend the existing
laws in India. The Act has been amended various times to fulfil the requirements of time and to meet
the challenges of time.
Objectives and Applicability of the Act

The Code of Civil Procedure, 1908 was enacted to regulate the procedure to be followed by Civil Courts.
The Code of Civil Procedure, 1908 extends to the whole of India. It extends to the whole of India
except—(a) omitted, (b) the State of Nagaland and the tribal areas:
Provided that the State Government concerned may, by notification in the Official Gazette, extend the
provisions of this Code or any of them to the whole or part of the modifications as may be specified
in the notification.
Explanation—In this clause, “tribal areas” means the territories which, immediately before the 21
days of January, 1972 were included in the tribal areas of Assam as referred to in paragraph 20 of
the Sixth Schedule to the Constitution. (4) 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.
Savings—(1) In the absence of any specific provision to the contrary, nothing in this Code shall be
deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or
power conferred, or any special form of procedure prescribed, by or under any other law for the time
in force.
Code of Civil Procedure, 1908 1

(2) In particular and without prejudice to the generality of the proposition contained in sub-section (1)
nothing in this Code shall be deemed to limit or otherwise affect any remedy which a landholder or
landlord may have under any law for the time being in force for the recovery of rent of agricultural land
from the produce of such land.
Application of the Code of Revenue Courts—(1) Where any Revenue Courts are governed by the provisions
of this Code in those matters of procedure upon which any special enactment applicable to them is
silent, the State Government may, by notification in the Official Gazette, declare that any portions of
those provisions which are not expressly made applicable by this Code shall not apply to those Courts,
or shall only apply to them with such modifications as the State Government may prescribe.
(2) “Revenue Court” in sub-section (1) means a Court having jurisdiction under any local law to entertain
suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes,
but does not include a Civil Court having original jurisdiction under this Code to try such suits or
proceedings as being suits or proceedings of a civil nature.
List of Amending Acts and Adaptation Orders

1. The Presidency-Towns Insolvency Act, 1909 (Act 3 of 1909)
2. The Code of Civil Procedure (Amendment) Act, 1914 (Act 1 of 1914)
3. The Decentralization Act, 1914 (Act 4 of 1914)
4. The Repealing and Amending Act, 1914 (Act 10 of 1914)
5. The Second Repealing and Amending Act, 1914 (Act 17 of 1914)
6. The Amending Act, 1916 (Act 13 of 1916)
10. The Indian Limitation and Code of Civil Procedure (Amendment) Act, 1920 (Act 26 of 1920)
11. The Devolution Act, 1920 (Act 38 of 1920)
13. The Civil Procedure (Amendment) Act, 1922 (Act 9 of 1922)
15. The Code of Civil Procedure (Amendment) Act 1923 (Act 26 of 1923)
16. The Code of Civil Procedure (Second Amendment) Act, 1923 (Act 29 of 1923)
18. The Legislative Members Exemption Act, 1925 (Act 23 of 1925)
19. The Oudh Courts (Supplementary) Act, 1925 (Act 32 of 1925)
20. The Small Cause Courts (Attachment of Immovable Property) Act, 1926(Act 1 of 1926)
23. The Negotiable Instruments (Interest) Act, 1926 (Act 30 of 1926)
24. The Sind Courts (Supplementary) Act, 1926 (Act 34 of 1926)

27. The Transfer of Property (Amendment) Supplementary Act, 1929 (Act 21 of 1929)
28. The Transfer of Property (Amendment) Supplementary Act, 1930 (Act 16 of 1930)
30. The Amending Act, 1934 (Act 35 of 1934)
32. The Government of India (Adaptation of Indian Laws) Order, 1937
35. The Code of Civil Procedure (Third Amendment) Act, 1937 (Act 16 of 1937)
37. The Arbitration Act, 1940 (Act 10 of 1940)
39. The Berar Laws Act, 1941 (Act 4 of 1941)
40. The Federal Court Act, 1941 (Act 21 of 1941)
46. The Indian Independence (Adaptation of Central Acts and Ordinances) Order, 1948
48. The Adaptation of Laws Order, 1950
51. The Codes of Civil and Criminal Procedure (Amendment) Act, 1951 (Act 24 of 1951)
55. The Adaptation of Laws (No. 2) Order, 1956
57. The Union Territories (Laws) Act, 1950 (Act 30 of 1950) as amended by the Union Territories (Laws)
Amendment Act, 1956 (Act 68 of 1956)
59. The Limitation Act, 1963 (Act 36 of 1963)
60. The Rulers of Indian States (Abolition of Privileges) Act, 1972 (Act 54 of 1972)

64. The Delegated Legislation Provisions (Amendment) Act, 1983
66. The Benami Transaction (Prohibition) Act, 1988 (Act 45 of 1988)
69. The Factoring Regulation Act, 2011 (Act 12 of 2012)
70. The Commercial Courts Act, 2015 (Act 4 of 2016) (w.r.e.f. 23-10-2015)
71. The Jammu and Kashmir Reorganisation Act, 2019 (Act 34 of 2019)
Points to Remember !
y The Parliament can amend the sections in the Code of Civil Procedure.
y Plea of res judicata has to be specifically raised.
y Principle of res judicata is a species of the principle of estoppel.
y Principle of res judicata is that a cause of action may not be relitigated once it has been judged
on the merits.
y Principle of res judicata based on public policy and private interest.
y Principle of res judicata applies to execution proceedings.
y By using the doctrine of res judicata court prevents injustice to the parties of a case supposedly
finished but perhaps also or mostly a way of avoiding unnecessary waste of resources in the court
system.
y Res Judicata means the matter is already judged.
y Res subjudice means stay of suit or under judgement.
y Res subjudice bars to the trial of a suit.
y Provision of Res Judicata and Res subjudice are mandatory.
y There are five types of writs—habeas corpus, mandamus, prohibition, quo warranto and certiorari.
y The writ of habeas corpus is maintainable before the High Court if the detention is illegal.
y Principle of res judicata is not applicable in Writ of Habeas Corpus.
y A decree may be executed either by the court which passed it or to which it is sent.
y All saleable properties are liable to attachment and sale in execution of the decree.
y Court may issue a commission to examine witnesses, to make a local investigation, to adjust
accounts, to make the partition, to hold an investigation, to conduct sale, to perform a ministerial
act.
y Civil court cannot issue a commission to execute a decree.
y Caveat shall not remain in force after the expiry of ninety days.
y Caveat petition is used by a person who holds a strong fear or uneasiness that some or the other
case against him/her is going to be filed in a court of law regarding any manner.
y Misjoinder of parties and causes of action in a suit is technically called multifariousness.
y Every Pleading shall contain material facts and not evidence.

y Amendment of pleadings shall be allowed to bring or to clarify all matters in issue before the
Court.
y Plaint contains the written statement of the plaintiff’s claim.
y Written statement means a pleading for defence or answer by the defendant of plaintiff’s suit.
y Set-off means a claim by the defendant against the plaintiff or a plea in defence available to the
defendant.
y Counter-claim means a claim made by the defendant in a suit against the plaintiff.
y Ex parte decree is a decree passed by the court in the absence of the defendant or it is a decree
passed against a defendant in absentia.
y Representative suit is a suit filed against one or more persons on behalf of themselves and others
having the same interest in the suit.
y ‘De novo’ means a “new trial”.
y Each Party shall bear its own expenses means parties are not entitled to cost from each other.
y Abatement of the suit is the premature ending of a suit before final adjudication.
y Garnishee order is a common form of enforcing a judgement debt against a creditor to recover
money.
y Indigent person is one who is not possessed of sufficient amounts (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 plaintiff in such a suit.
y Injunction is a Judicial Remedy prohibiting persons from doing a specified act.
y An appeal in the form of a memorandum is signed by the party to the case or his advocate.
y The second appeal can be filed even against an ex parte decree/judgement of the first appellate
court, if the case involves a substantial question of law.
y Receiver is an independent and impartial person who is appointed by the court to administer/
manage, that is, to protect and preserve a disputed property involved in a suit.
y Receiver is an officer of the courts.
y CPC provides for granting of temporary injunction which may be granted where the defendant is
about to commit a breach of contract, or other injury of any kind.

6
The Code of Civil Procedure, 1908
Sections
Quick View of Law Charts
Preliminary Suits in General
Pecuniary Provincial Courts shall No Court Res Place of Summons The Court, Interest Costs
jurisdiction Small Cause (subject shall judicata Suing may be after the (Section 34) (Section 35)
(Section 6) Courts to the proceed (Section 11) issued to the case has
(Section 7) provisions with the defendant been
herein trial of any to appear heard, shall
contained) suit which is and answer pronounce
have pending the claim judgment,
Presidency jurisdiction (Section 10) and may and on such
Small Cause to try all be served judgment a
Courts suits of a in manner decree shall
(Section 8) civil nature prescribed follow
(Section 9) (Section 27) (Section 33)
Every suit Suits for Place of Suits for Suits to be Objections to Power to
shall be immovable Institution of compensation instituted jurisdiction transfer suits
instituted property suit where for wrongs where (Section 21) which may
in the Court situate within local limits of to person or defendants be instituted
of the jurisdiction jurisdiction movables reside or in more than
lowest grade of different of Courts are (Section 19) cause of one Court
competent to Courts uncertain action arises (Section 22)
try it (Section 17) (Section 18) (Section 20)
(Section 15)
Code of Civil Procedure, 1908


Sections
Execution Incidental Suits in Particular Cases Special Proceedings

Proceedings
Decree may Transfer of Transfer of Commission

Suits by or Alien enemies Interpleader Arbitration Public
be executed decree to decree against residing in suit (Section 89) nuisances
either by the Court in (Section 39) Government India with the (Section 88) and other
Court which another (Section 79) permission of wrongful
passed it, or State Power Letter of the Central acts
by the Court (Section 40) of Court request Government, affecting
to which it is to issue (Section and alien the public
sent for commissions 77) friends, may (Section 91)
execution (Section 75) sue
(Section 38) (Section 83)
Notice Execution
(Section 80) of Decree
(Section 82)
Precepts Arrest and Property
(Section 46) detention; liable to
judgment attachment
debtor may and sale in
be arrested execution of
in execution decree
of a decree (Section 60)
(Section 55)
7
8
Sections
Supplemental Proceedings Appeals
Appeal from original decree Appeal from General

(Section 96) Appellate Decrees Provisions
Supplemental Compensation
proceedings for
(Section 94) obtaining
arrest,
attachment or Appeal Decision No decree Second Second Powers of Procedure in
injunction on from final where to be Appeal appeal on Appellate appeals from
insufficient decree appeal reversed or (Section 100) no other Court appellate
grounds where no heard by modified grounds (Section 107) decrees and
(Section 95) appeal from two or more for error or (Section 101) orders
preliminary Judges irregularity (Section 108)
decree (Section 98) not
(Section 97) affecting
merits or
jurisdiction
(Section 99) No second Power of
appeal in High Court
certain to
cases determine
(Section 102) issue of fact
(Section 103)

Sections

Reference, Review Special Provisions Rules Amendments
And Revision Relating to the High
Courts not Being the
Court of a Judicial
Commissioner
Bar on suit Compensatory Costs for Execution
Reference Review Revision to set aside costs in causing delay of decrees
(Section (Section (Section decree on respect of (Section 35B) passed by
113) 114) 115) This Part applies objection as false or Courts in
only to High to place of vexatious reciprocating
Courts suing claims or territory
(Section 116) (Section 21A) defences
(Section 35A)
Definitions Application No order under No further

of “foreign of sections section 47 to appeal in
State” and 85 and 86 be reversed certain cases
“Ruler” to Rulers of or modified (Section 100A)
(Section 87A) former Indian unless decision
States of the case is
(Section 87B) prejudicially
affected
(Section 99A)
Exemption of Right to lodge Power to Place of trial to

members of legislative a caveat amend decree be deemed to
bodies from arrest (Section 148A) or order be open Court
and detention under where appeal (Section 153B)
civil process is summarily
(Section 135A) dismissed
(Section 153A)
9
10
Orders
Parties to Suit Frame of Suit Recognized Institutions of Issue and Service Pleadings Generally
Agents and Suits of Summons
Pleaders
Plaintiffs Defendants Frame of Suit to include Pleading Verification Amendment
(Rule 1) (Rule 3) Suit the whole Suit to be Register Summons Delivery (Rule 1) of of pleadings
(Rule 1) claim commenced of suits (Rule 1) of pleadings (Rule 17)
Misjoinder (Rule 2) by plaint (Rule 2) summons (Rule 15)
and non- (Rule 1) by Court
joinder Joinder of (Rule 9)
(Rule 9) causes of action
(Rule 3)
Mode of Substituted service
service and its Effect
(Rule 10) (Rule 20)
Plaint Written Statement, Appearance of Parties Examination Discovery Admissions Production, Settlement of
Set-off and Counter-claim and Consequence of of Parties by and Impounding Issues and
Non-appearance the Court Inspection and Determination of
Return of Suit on Issues of
Return Rejection
Documents Law or on Issues
of of plaint Written Denial to Agreed Upon
plaint (Rule 11) statement be specific Procedure Procedure Setting
(Rule (Rule 1) (Rule 3) in case in case aside Framing of issues
10) of non- of non- decree (Rule 1)
Evasive denial attendance attendance ex parte
(Rule 4) of one or of one or against
more of more of defendant
several several (Rule 13)
plaintiffs defendants
Disposal of Summoning Attendance
(Rule 10) (Rule 11)
the Suit at and of Witnesses
the First Attendance Confined or
Specific Subsequent Hearing of Witnesses Detained in
denial pleadings Prisons
(Rule 5) (Rule 9)

Orders

Adjournments Hearing of Affidavits Judgement Costs Execution of Death, Marriage Withdrawal Payment Security
the Suit and and Decrees and and Insolvency of and into for
Examination Decree Orders Parties Adjustment Court costs
Court may of Witnesses of Suits
grant time
and adjourn
hearing When Court Decree for No Effect of Withdrawal
(Rule 1) may stay payment abatement abatement of suit or
execution of money by party’s or abandonment
(Rule 26) (Rule 30) death, dismissal of part of
if right (Rule 9) claim
to sue (Rule 1)
Decree for Attachment survives
specific of property (Rule 1)
performance for (Rule 41-57)
restitution of
conjugal rights or
for an injunction
(Rule 32)
Commissions Suits by or Suits Involving Suits by Suits by or Suits by or Suits by Suits by or

against the a Substantial or against Against Against Firms or against Against Minors
Government Question of Military or Corporations and Persons Trustees, and Persons of
or Public Law as to the Navalmen or carrying on Executors and Unsound Mind
Officers in Interpretation of Airmen Business in Administrators
their Official the Constitution names other
Capacity or as to the than their
validity of own Minor to Removal of
any Statutory sue by next next friend
Suits by friend (Rule 9)
Instrument
or against (Rule 1)
Government
(Rule 1)
11
12
Orders
Suits Relating to Suits by Indigent Persons Suits Relating Interpleader Special Case
Matters to Mortgages
Concerning the of Immovable
Family Property Plaint in
Suits may Examination Rejection of Power of interpleader-suit
be instituted of applicant application Government to (Rule 1)
by indigent (Rule 4) (Rule 5) provide for free
persons legal services to
(Rule 1) indigent persons
(Rule 18)
Summary Arrest and Attachment Temporary Injunctions Appointment Appeals Appeals from Appeals from
Procedure before Judgement and Interlocutory Orders of Receivers from original Appellate Orders
Decrees Decrees
Institution Appointment
of summary Arrest before Attachment Temporary Interlocutory of Receivers
suits judgement before injunctions orders (Rule 1-5)
(Rule 2) (Rule 1-4) Judgement (Rule 1-5) (Rule 6-10)
(Rule 5-13
Appeals by Appeals to Reference Review Miscellaneous Chartered Provincial Presidency

Indigent the Supreme High Courts Small Cause Small Cause
Persons Court Review Courts Courts
Reference
(Rule 1-7) (Rule 1-9)
Appeals by
Indigent
Persons
(Rule 1-3

Subjective Theory
Introduction to the Code

Law
Codified law Uncodified Law
Acts or Statute Made By Judges
Made by the legislature or enacted Example: Law of Torts
Civil law Criminal Law
Wrong against an Wrong against Society

individual at large
Substantive law vis-a-vis Procedural law

Substantive Law Procedural Law
It is a branch of Law which defines or determines It is a branch of law which governs and deals
rights, duties, and liabilities of parties. with the process of litigation, i.e. the means and
instrument by which the ends administration of
justice are worked out.
It defines under what conditions a certain It lays down the rules as to – (a) who shall move
right exist in a certain person and under what to the court,
conditions a person is subject to a specific (b) in what manner,
liability (c) the procedure by which the court arrives at
their decisions.
For Example – the Indian Contract Act, Indian For Example – The Limitation Act, the Indian
Penal Code, Law of Tort, etc. Evidence act, The code of civil procedure etc.
It is concerned with the ends which the It is concerned with the means and instrument
administration of justice seeks. by which these ends are to be attained.
Commencement - The Code of Civil Procedure, 1908 came into force with effect from 1 January 1909.
List Amendments along with their date of enactment

y The Amendment Act of 1976 came into force with effect from 1 February 1977 (except Sections 12, 13
and 50).
y However, sections 12 and 50 came into force on May 1 on 1 July 1977 and Section 13 on 1 July 1977.
y Whereas the Code of Civil Procedure (Amendment) Act, 1999 came into force from 1 July 2002.
y The Code of Civil Procedure (Amendment) Act, 2002 came into force on 1 July 2002.

The Code of Civil Procedure is a consolidated code of procedure to be followed by civil courts. It was
observed in Prem Lata Nahata versus Chandi Prasad of Sikaria, (2007) 2 SCC 551, the code consolidates
and amends the laws relating to the procedure of the courts of civil judicature. No doubt it also
deals with certain substantive rights. But its essential object is to consolidate the law relating to civil
procedure.
Application of the code

It extends to the whole of India, except the state of Nagaland and other Tribal Areas.
Scheme the code

The code can be divided into two parts:
(i) The body of the code containing 158 sections, and
(ii) The First schedule, containing 51 orders, rules and forms.
It is to be noted that the sections deal with the provisions of a substantive nature, laying down the
general principles of jurisdiction while the first schedule relates to the procedure and the method,
manner and mode in which the jurisdiction may be exercised.
In Vareed Jacob versus Sosamma Geevarghese, (2004) 6 SCC 378, it was held that the sections and the
rules must be read together and harmoniously constructed, but if the rules are inconsistent with the
sections, the latter will prevail. The court considered the scheme of the code as a whole and observed
that amendments made by High Courts in the Rules contained in the (First) Schedule, also became
part of the code for all purposes “as if enacted is the Code”.
Retrospective operation: The code is a procedural law and an adjective law which prescribes the
procedure for the enforcement of rights, liabilities and obligations of the state as well as of citizens and
makes the procedure simple, expeditious and inexpensive. It is a well-settled principle of interpretation
of Statutes that procedural laws are always retrospective in nature unless there are good reasons
to the contrary. Their provisions will apply to proceedings already commenced at the time of their
enactment. The reason is that no one can have a vested right in forms of procedure. The code of civil
procedure is not retrospective in the procedure.
Definitions
Decree - [Section 2(2)]
The adjudication of a court of law may be divided into two classes:-
(a) Decree
(b) Order.
In order that a decision of the court may be a “decree”, the following elements must be present-
(i) There must be an adjudication.
(ii) Such adjudication must have been done in a suit.
(iii) It must have determined the rights of the parties with regard to all or any of the matters in
controversy in the suit,
(iv) Such determination must be of conclusive nature, and
(v) There must be a formal expression of such adjudication.
Adjudication: There must be a judicial determination of the matter in dispute. Such judicial determination
must be done by a court. Thus, an order passed by an officer who is not a court is not a decree. It

can be said that a decision on a matter of an administrative nature, or an order dismissing a suit for
default of appearance, or dismissal of an appeal for want of prosecution is not a decree as there is no
adjudication (Deep Chand versus Land Acquisition officer, AIR 1994 SC 1901)
Suit: The expression suit is not defined in the code. It means a civil proceeding which is instituted
by filing a plaint in a civil court. A proceeding which does not commence with a plaint is not a suit.
(Pandurang Ramchandra versus Shantibai Ramchandra, 1989 Supp (2) SCC 627). However, it may be
noted that under certain enactments, specific provisions have been made to treat applications as
suits, e.g., the Hindu Marriage Act, The Arbitration and Conciliation Act, The Guardian and Wards Act,
etc. They are statutory suits and the decisions given there under are, therefore, decrees. Therefore, a
proceeding which does not commence with a plaint and which is not treated as a suit under any Act,
cannot be said to be a “suit” under the Code also, and the decision given therein cannot be said to be
decree under Section 2(2) of the Code.
Rights of the parties in controversy: The adjudication must have determined the rights of the parties
with regard to all or any of the matters to be in controversy in the suit. The expression “rights of
parties” means substantive rights and not merely procedural rights. It means rights of the parties
inter-se in the subject-matter of the suit and include general rights such as those relating to status,
limitation, jurisdiction, frame of the suit, accounts, etc. which if decided must have a general effect on
proceedings in the suit.
Matter in controversy in the suit: It would cover any question relating to:
(a) the character and the status of a party suing,
(b) jurisdiction of court,
(c) maintainability of suit,
(d) other preliminary matter which necessitates adjudication before a suit is enquired into.
However, interlocutory orders on matters of procedure which do not decide the substantive rights of
the parties are not decrees. Similarly, it does not include proceedings preliminary to the institution of
a suit.
Conclusive Determination: In order to constitute a decree, the rights of parties with regard to any of
the matters in controversy/dispute in the suit must be conclusively determined. A decision of a court in
order to be a decree must be of conclusive nature, that is the decision must be one which is complete
and final as regards the Court which passes it and not subject to terms and conditions. The decision of
the court determining the rights of parties should be the final one in respect of any or all controversial
issues. The decree may conclusively determine the rights of parties although it may not completely
dispose of the suit.
A decree becomes final in two ways:
(a) where decree so far as regards court the passing it completely disposes of the suit.
(b) where time to file an appeal has expired without filing appeal or the matter is decided by the
highest court.
Formal expression of Adjudication: A decree is essentially a formal expression of adjudication by the
court. An adjudication must be expressed in a formal manner without formal expression, there can be
no decree. An order is a formal expression of a decision of a civil court but it differs from a decree in
the sense that a decree conclusively determines the rights of the parties with regard to all or any of
the matters in controversy in a suit but an order does not.

Kinds of Decree
1. Preliminary Decree: Where an adjudication decides the rights of parties with regard to all or any of
the matters in controversy in the suit, but does not completely dispose of the suit, it is a preliminary
decree. In Shub Karan versus Sita Saran, (2009) 9 SCC 689, it was held that a preliminary decree is
passed in those cases in which the court has first to adjudicate upon the rights of the parties, and
has then to stay in the hands for the time being until it is in a position to pass a final decree in the
suit. In other words, a preliminary decree is only a stage working out the rights of the parties which
are to be finally adjudicated in by a final decree. It was further observed that once a preliminary
decree is passed by the court, it is the duty of the court to pass the final decree.
The code provides for the passing of preliminary decree in the following suits.
(i) suits for possession & Mesne Profit
(ii) Suits for partition & separate possession
(iii) suit for foreclosure of a mortgage
(iv) Suit for dissolution of partnership.
2. Final Decree: A final decree finally settles/determines the rights of the parties in respect of all or
any of the matters/questions issues in controversy or dispute between the parties and nothing
further remains to be decided thereafter. In Hasham Abbas Sayyad versus Usman Abbas Sayyad,
(2007) 2 SCC 355, it was held that it is only the final decree which is executable. A preliminary
decree is not executable, unless and until final decree is a part of the preliminary decree. It was
also observed that a final decree is one disposes of a suit and questions in controversy and which
finally settles all between parties nothing further remains to be decided thereafter.
3. Partly final and partly preliminary decree: A decree may be partly final and partly preliminary, for
instance, in a suit for possession of immovable property with mesne profits where the court:
(a) decrees possession of the property, and
(b) directs an enquiry into the mesne profits
The former part of the decree is final, while the latter part is only preliminary because the final decree
for mesne profits can be drawn only after enquiry, and the amount due is ascertained. In such a case,
even though the decree is only one, it is partly preliminary and partly final decree. (Paras Nath Rai
versus State of Bihar, (2012) 12 SCC 642).
Q. Difference between Preliminary and final decree
Preliminary Decree Final Decree

It ascertains what is to be done. It states or implements the result of preliminary
decree
It merely declares the rights and shares of parties Such inquiry will thereafter be conducted and
and leaves room for further inquiry to be conducted rights of the parties will be determined in the
pursuant to directions issued in the preliminary final decree.
decree.
It does not dispose of the suit and further proceedings It disposes of the suit finally.
are necessary to dispose of the suit finally.
It is independent. It is dependent upon the preliminary decree
and subordinate to it.
Only some or one of the controversial matters are Rights and liabilities are finally adjudicated.
disposed of.

Deemed Decree: An adjudication which though not fulfills the requirements of Section 2(2) cannot be
decree, however by legal fiction certain orders are deemed to be decree. It is to be noted that certain
orders passed or made in the execution proceeding under Order XXI are deemed to be “decrees” under
the Code. These are.
(a) Adjudication of claims to, or objection to attachment of property (Order XXI, Rule 58);
(b) Adjudication of an application under Rule 98 or 100 of Order XXI.
1. Rejection of Plaintiff: In State of Rajasthan versus Rajpal Singh Chauhan, 2011 SCC Online Raj 2709,
it was held that Section 2(2) of the code specifically provides that a rejection of a plaint shall be
deemed to be a decree. The rejection of a plaint must be one authorised by the code. If it is not
under the code, the rejection will amount to a decree. It was further held that an order returning
a plaint or a memorandum of appeal to be presented to the proper court is also not a decree.
The reason is that such an order does not negate the right of a plaintiff or appellant and is not a
decision on the rights of the parties.
2. Restitution: Determination of a question within Section 144. The definition of the term “Decree”
stipulates that the determination of any question under Section 144 shall be deemed to be a
decree.
It provides that when the court determines any question on an application for restitution under
Section 144, the same is deemed to be a decree. However, every order under Section 144 is not a
decree. It is necessary that such orders must have decided the rights of parties with regards to
the matters in controversy in proceedings under that section.
3. Judgement: Section 2(9) defines judgement. It means the statement given by a judge on the
grounds of a decree or order.
Essential
(i) There should be a statement for the grounds of decision.
(ii) Every judgement other than that Court of a small cause should contain
(a) a concise statement of the case,
(b) the points for determination,
(c) the decision thereon,
(d) the reasons for such a decision.
Judgement contemplates the stage prior to passing of a decree or an order, and after the pronouncement
of judgement the decree follows. Section 33 states that after the case has been heard, the court
shall pronounce judgement, and on such a judgement a decree shall follow. After the judgement is
pronounced, it is imperative that a decree must follow judgement.
Nature
y It is the final decision of the court informing the parties and the whole world the decision arrived at.
y It is the application of law to the facts of the case and the legal determination of the rights of the
parties before the court.
y It decides the dispute in its totality without leaving anything to be resolved.
The Supreme Court in Balraj Taneja versus Sunil Madan, AIR 1999 SC 3381 observed that “whether it
is a case which is contested by the defendants by filing a written statement or a case which proceeds
ex-parte and is ultimately decided as an ex-parte case, or is a case in which written statement is not

filed and that the case is decided under Order 8, Rule 10, the Court has to write a judgement which
must be in conformity with the provisions of the code or atleast set out the reasoning by which the
controversy is resolved.
Every order is not judgement

An order passed by an appellate court calling for a finding on an issue framed by it in an appeal is not
a judgement, nor is a direction to pass a final decree after the deficit court- fees are paid, nor an order
summarily dismissing an appeal or a revision. [V Gokul versus State of Gujarat, (1996) ILR Cri, 1189]
“Pronouncing Judgement”
In Cellular Operators Association of India versus Union of India, AIR 2003 SC 899,it was held that before
pronouncing judgement, the court has to apply its mind to arrive at the conclusion whether there is
any cause to modify or remit the award. It was further held that the phrase “pronounce judgement”
would itself indicate judicial determination by reasoned order for arriving at the conclusion that decree
in terms of the award be passed. Furthermore, Order XX Rule 4(2) of the code in terms provides the
“judgement” shall contain a concise statement of case, the points for determination the decision
thereon, and the reasons for such decision. This is the antithesis to pronouncement of non-speaking
orders.
Difference between Judgement, Order and Decree

Basic Judgement Decree Order
(i) Definition Section 2(9)- It means Section 2(2)- It means Section 2(14)- It means
a statement given by a expression of an the formal expression
judge on grounds of a adjudication which of any decision of any
decree or order. conclusively determines decision of a civil court
the parties with respect which is not a decree.
to all or any of the
matters in controversy.
(ii) Formal Expression Statement is to be No statement needs to No statements need to

given by the judge be given by the judge in be given by the Judge
only in the judgement the decree. in order.
and he records the
reason for arriving at a
particular conclusion in
judgement.
(iii) Stage It is the declaration by Decree is an operative Order denotes the daily
a judge of his intention part of the judgement. updates in the case.
as to the final result
of a suit based on
reasoning.
(iv) Finality It is always final. Decree may be Order is always final.

party final or partly
preliminary.

Basic Judgement Decree Order
(v) Effect It leads to the final After decree, the After passing of order,
disposal of the suit suit stands disposed the suit does not come
after a decree is drawn of since the right of to an end, except in
up or order is passed parties are finally certain cases.
determined.
(vi) Utility It contains a statement A decree is the final Order directs the
of a case, the points result of a suit, setting parties to suit to do
of determination the the controversial issues something or to refrain
decision thereon and by the adjudication. from doing something
the reasons for such but does not finally
decisions. determine the right of
the parties with regard
to the dispute.
Order: Section 2(14)

“Order” means the formal expression of any decision of a civil court which is not a decree. In Re
Siddharth Srivastava, AIR 2002 Bom 494, it was held that the award given by the motor accident claims
tribunal does not have the status of a “judgement”, “decree”, or an “order” as contemplated by the
Code.
Orders must be: Logical,
: clear, and
: without creating confusion in the minds of parties.
Orders amounting to decree

(a) An order of Abatement of a suit.
(b) An order rejecting a plaint
(c) The decision of the District court on appeal that the court below has no jurisdiction.
(d) An order, discharging some of the defendants for want of cause of action.
(e) An order rejecting prayers for a final decree for foreclosure.
Orders not Amounting to decree

(a) An order refusing stay,
(b) An order appointing a commissioner to take Accounts.
(c) An order in the plaintiff’s favour as to his locus standi to sue.
(d) An order setting aside rejection of the plaint.
(e) An order for remand or for amendment under Section 151
Foreign court - Foreign Judgement

Section 2(5) defines a foreign court as a court situated outside India and not established or continued
by the authority of the Central Government.
In order to constitute a “foreign court”, two conditions must be satisfied:
(i) It must be situated outside India, and
(ii) It must not have been established or continued by the Central Government.

Section 2(6) defines foreign Judgement as “the judgement” of foreign courts.” Thus, those judicial
decisions which have been delivered by the courts of other countries are foreign judgements. The
Supreme Court in Union of India versus Naveen Jindal, (2004) 2 SCC 510, held that although the
interpretation of the Constitution of India should be primarily based on materials available in India,
relevant rules of other countries can be looked into for guidance.
Legal Representative: Section 2(11)

Legal Representative denotes the classes of persons on whom the status of a representative is fastened
by reason of the death of a person whose estate they are held to represent.
Thus, under Section 2(11), the following categories of persons can be allowed to represent the estate
of the deceased person for the purpose of pending proceedings before the Court:-
(a) who represents without title-
Legal Representative includes a person who represents the estate of the deceased person even
without title either as executor or administrator in possession of the estate of the deceased. The
executors/administrators are legal representatives, though they have no beneficial interest and
may not be the heir of the deceased.
(b) who intermeddles with the estate-
Legal Representative includes any person, even a stranger who has no interest in the property and
who is not a beneficial owner thereof but who intermeddles with the estate of the deceased i.e.
who may be in actual possession of the deceased’s estate without clearing any title for himself.
(c) On whom the state devolves-
A person in possession is a representative of the Estate. But a legal representative need not
necessarily be in possession of any property of the deceased. Mere Right of possession of the
estate of the deceased is sufficient. All that is necessary is that he should be the person on whom
the estate would devolve on the death of the party suing or sued.
Mesne Profits: Section 2 (12)

In Mohadei versus Kaliji Birajman, 1969 All LJ 896, the court observed that the Mesne Profits means
those profits which a person in wrongful possession of such property either actually received or might
have received with due diligence. It is not always necessary that there should be a proof of actual
receipt.
“Mesne Profits” of the property means those profits which the person in wrongful possession of such
property actually received or might with ordinary due diligence have received therefrom, together with
interest on such profits, but shall not include profits due to improvements made by the person in
wrongful possession.
In Kishen Kumar Narandas versus Purushottam Mathuradas, (2006)2 Civil Court Cases 600 (Bom), it
was opined that for entitling him to grant mesne profits, the plaintiff must lead evidence to prove
what would be compensation the defendant might have received with due diligence for his wrongful
possession. Where the plaintiff did not lead any evidence, it was held that he was not entitled to claim
mesne profits.
Court to try suits unless barred: Section 9

Section 9 states that the court shall (subject to the provisions herein contained) have jurisdiction to
try all suits of a civil nature except suit of which their cognizance is expressly or impliedly barred.

The jurisdiction of the courts to try all suits of civil nature is very expansive as is evident from bare
reading of section 9 of the code. This is because of the principle ubi jus ibi remedium (where there is
a right, there is a remedy). It is only where cognizance of a specified type of suit is barred by a statute
either expressly or impliedly that the jurisdiction of civil court would be ousted to entertain such a suit.
The general principle is that a statute excluding the jurisdiction of the civil court should be construed
strictly. Section 9 of the code is an enforcement fundamental principle of law laid down in maxim ubi
jus ibi remedium. A litigant, thus having a grievance of a civil nature has a right to institute a suit in a
competent civil court unless its cognizance is either expressly or impliedly barred by any Statute.
It is to be noted that civil court being a court of plenary jurisdiction has the power to determine its
jurisdiction upon considering averments made in the plaint but that does not mean that the plaintiff
can circumvent provisions of the law in order to invest jurisdiction on a civil court which it may not
otherwise possess.
In NDMC versus Satish Chand, AIR 2003 SC 3181, it was held that a bar to file a civil suit may be express
or implied. An express bar is where a statute itself contains a provision that jurisdiction of civil court is
barred, for example, the bar contained in Section 293 of the Income Tax Act, 1961. An implied bar may
raise when a statute provides a special remedy to an aggrieved party like a right to appeal as contained
in the Punjab Municipal Act which is the subject matter of the present case. Section 86 of the said Act
restrains a party from challenging assessment and levy of tax in any manner other than as provided
under the Act. A provision like this is the implied bar envisaged in Section 9 of the Code Civil Procedure,
1908 against filing a civil suit.
It is to be noted that the question of jurisdiction is a pure question of law and needs to be adjudicated
only on the basis of statutory provisions.
In Saraswatibai Trimbak Gaikwad versus Danwdar D Motiwale, AIR 2002 SC 1568, it was held that the
civil court does not have jurisdiction to decide matters which are required to be dealt with by the
tribunal created under the statute.
Exclusion of Jurisdiction
In Dhulabai versus State of Madhya Pradesh, AIR 1969 SC 78– The following propositions of law regarding
the exclusion of jurisdiction of civil court have been laid down.
(1) Where the Statute gives a finality to the orders of the special tribunal, the civil court’s jurisdiction
must be held to be excluded if there is adequate remedy to do what the civil court would normally do
in a suit. Such provision, however, does not exclude those cases where the provisions of the particular
Act would not have been complied with or the Statutory tribunal has not acted in conformity with the
fundamental principle of judicial procedure.
(2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the
particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but
it is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the
examination of remedies and the scheme of the particular act to find out the intendment becomes
necessary and the result of the inquiry may be decisive. In the latter case, it is necessary to see if the
statute creates a special right or a liability and provide for the determination of the right or liability
and further lays down that all questions about the said right and liability shall be determined by the
tribunals so constituted, and whether remedies normally associated with actions in civil courts are by
the said statute or not.

(3) Challenge to the provisions of the particular Act as ultra-wires cannot be brought before Tribunals
constituted under that Act. Even the High Court cannot go into that question on a revision or reference
from the decision of the Tribunal.
(4) when a provision is already declared unconstitutional or the constitutionality of any provision is
to be challenged, a suit is open. A writ of certiorari may include a direction for a refund if the claim is
clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace
a suit.
(5) where the particular Act contains no machinery for a refund of tax collected in excess of constitutional
limits or illegally collected suits.
(6) Questions of the correctness of the assessment apart from its constitutionality are for the decision
of authorities and a civil suit does not lie if the orders of the authorities are declared to be final or
there is an express prohibition in the particular Act. In Either Case, the Scheme of the particular Act
must be examined because it is a relevant enquiry.
(7) An exclusion of the jurisdiction of the civil court is not readily to be inferred unless the conditions
above set down apply.
Suit of Civil Nature

In order that a civil court may have jurisdiction to try a suit, the first condition which must be satisfied
is that the suit must be of a civil nature. The concept of “civil nature” is wider than the expression “civil
proceedings.” A suit is of civil nature if the principal question therein relates to the determination of a
civil right and enforcement thereof. It is not the status of the parties to the suit but the subject matter
of it which determines whether or not the suit is of a civil nature.
Explanation I to Section 9
The expression “suit of civil nature” will cover the private rights and obligations of a citizen. A Suit in
which the principal question relates to caste or religion is not a suit of a civil nature. But if the principal
question in a suit is of a civil nature (the right to property or to an office) and the adjudication indication
involves the determination relating to a caste question or to religious rights and ceremonies, it does
not cease to be a suit of civil nature and the jurisdiction of a civil court is not barred.
Explanation II to Section 9
It has been added by the Amendment Act of 1976. Explanation II specifically provides that a suit
relating to a religious office is maintainable whether or not it carries any fees or whether or not it is
attached to a particular place.
Suit of Civil Nature

(i) Suits for rent,
(ii) Suit for specific performance of contract,
(iii) Suit for dissolution of marriage,
(iv) Suit for restitution of conjugal rights,
(v) Suits for damages for civil wrongs.
Suit not of Civil Nature

(i) Suits involving principally caste questions;
(ii) Suits against expulsion from caste,

(iii) Suit for upholding mere dignity or honour,
(iv) Suits for recovery of voluntary offerings or payments
(v) Suits involving purely religious rites or ceremonies.
Suits expressly barred: A suit is said to be “expressly barred” when it is barred by any enactment for
the time being in force [Gurucharan Singh versus Kamla Singh, (1976) 2 SCC 152]. Every presumption
should be made in favor of the jurisdiction of a civil court and the provision of exclusion of jurisdiction
of a court must be strictly construed. If there is any doubt about the ousting of the jurisdiction of a civil
court, the court will lean to an interpretation which would maintain the jurisdiction [Dhulabai versus
State of Madhya Pradesh, AIR 1969 SC 78].
Thus, the matter falling within the exclusive jurisdiction of revenue courts, or the Code of Criminal
Procedure, 1973, Motor Accident Claim Tribunal, Election Tribunal, Income Tax Tribunal, etc. are expressly
barred from the cognizance of civil court. But if the remedy provided by statute is not adequate and
all questions cannot be decided by a statute is not adequate and all questions cannot be decided by
a special tribunal, the jurisdiction of a civil court is not barred. [State of Tamil Nadu versus Ramalinga
Samigal Madam, (1985) SCC (4) 10]
Suits Impliedly Barred: A suit is said to be impliedly barred when it is barred by general principles of
law. When a Specific remedy is given by the statute, it thereby deprives the person who insists upon
a remedy of any other form than that given by the Statute. Where an act creates an obligation and
enforces its performance in a specified manner, that performance cannot be enforced in any other
manner [Premier Automobiles Ltd versus Kamlekar Shantaram Wadke, (1976) 1 SCC 496]. No suit shall
lie for recovery of costs incurred in a criminal prosecution or for enforcement of a right upon for a
contract hit by Section 23 of the Indian contract Act.
Jurisdiction of Civil Court

In Most Rev. P.M.A Metropolitan versus Moran Mar Marthoma, (1995) SCC Sup (4) 286, it was held that
the fundamental principle of English Law that wherever there is a right, there is remedy (ubi jus ibi
remedium) has been adopted by the Indian system also. It was further held that right and remedy
are the two sides of the same coin and they cannot be separated from each other. It was held that a
litigant having a grievance of civil nature has a right to institute a civil suit in a competent civil court
unless its cognizance is either expressly or impliedly barred by any statute.
Jurisdiction of court means the extent of the authority of a court to administer justice prescribed with
reference to the subject-matter, pecuniary value and local limit. It is a well-settled law that consent
cannot take away jurisdiction of a court.
In AR Antulay versus RS Nayak, (1988) 2 SCC 602,the Supreme Court observed that “the power to create
or to enlarge jurisdiction is legislative in character, so also the power to confer or to take away a right of
appeal. Parliament alone can do it by Law and no court, whether superior or inferior or both combined,
can enlarge the jurisdiction of a court or divest a person of his rights of revision and appeal.”
Who determines as to the jurisdiction of the court and on what criteria?

It is well settled that it is the “civil court itself who determines its jurisdiction. The civil court has
inherent power to decide the question whether it has jurisdiction to entertain, deal with and decide the
matter which has come before it. The question whether a Court has jurisdiction or not, has to be raised
before and decided by the same court but with a presumption in favor of existence of its jurisdiction.
The Supreme Court in Official Trustee versus Sachindra, AIR 1969 SC 823, laid down the following
principles with regard to determination of jurisdiction of a court:—

(a) a Court can be held to have jurisdiction to decide a particular matter if the court is competent to
by the suit and at the same time it has jurisdiction to pass the order sought;
(b) Jurisdiction of a court must include the power to hear and decide the question in issue.
It is also well-settled that the basis to determine jurisdiction of a Civil Court is the averments made
in the plant. The jurisdiction of a court should normally be decided on the basis of pleadings of the
plaintiff i.e. on the basis of the case put forward by the plaintiff in the plaint and not upon the defence
taken by the defendant in written statement.
Objection as to jurisdiction of the court

Any objection as to jurisdiction must be raised by the defendant at the first/earliest available opportunity.
The reason is two-fold:—
(a) Firstly, if the defendant succeeds in satisfying the court that it is not vested with the jurisdiction
to entertain the suit, the court shall not proceed with the matter and there shall be no need for
the defendant to contest the matter on merits.
(b) Secondly, where the jurisdiction of the trial court is not questioned before the trial court passes a
decree which is impugned before the superior court, such superior court may refuse to entertain
the plea of jurisdiction of trial court.
In Ramesh Chand versus Anil Panjwani, AIR 2003 SC 2508, the Supreme Court held that an objection
as to exclusion of civil court’s jurisdictions for availability of alternative forum should be taken before
the trial court and at the earliest, failing which the higher court may refuse to entertain the plea in the
absence of proof of prejudice.
Kinds of Jurisdiction
Territorial or Local Pecuniary Writ Jurisdiction Jurisdiction over Original and

Jurisdiction Jurisdiction the Subject-Matter Appellate
Jurisdiction
Pecuniary Jurisdiction
The jurisdiction of the court to entertain, deal with and decide a suit may be limited by a variety of
circumstances, and the first thing which is to be determined is the “place of suing”.
Place of Suing - Pecuniary Jurisdiction (Section 15)

Section 15 reads: “Courts in which suits to be instituted - Every suit shall be instituted in the court of
the lowest grade competent to try it.”
Section 15 has two ingredients

(a) the court must be of the lowest grade, i.e., it must be inferior in the hierarchy of the exiting courts,
(b) Such a court must be competent to try the suit.
The object underlying this provision is twofold:

(a) to see that the courts of higher grades shall not be overburdened with suits; and
(b) to afford convenience to the parties and witnesses who may be examined in such suits.
In Konthan Kesavan versus Varkey Thomman, AIR 1964 Ker 206, it was held that the rule laid down
in section 15 of the code is a rule of the procedure and does not affect the jurisdiction of the court.

Hence, a decree passed by a court of Higher grade cannot be said to be without jurisdiction. It was
further held that it is merely an irregularity covered by Section 99 of the code and the decree passed
by the court is not a nullity.
Jurisdiction over the subject Matter

Section 16 provides for institution of suits in relation to immovable property in the court within the
local limits of whose jurisdiction the property is situated. It provides that suits in relation to immovable
property must be instituted in the court which has territorial jurisdiction to entertain that suit. There
are 6 clauses given in section which enumerates different kind of dispute-
Clause (a) - for the recovery of immovable property with or without rent or profits.
Clause (b)- for the partition of immovable property
Clause (c)- for foreclosure; sale or redemption in case of a mortgage of or charge upon immovable
property.
Clause (d)- for the determination of any other right to or interest in immovable property.
Clause (e)- for compensation for wrong to immovable property,
Clause (f) - for the recovery of movable property actually under destraint or attachment.
Proviso to Section 16
It provides that where a suit is in respect of an immovable property or relating to compensation for
wrong to immovable property held by defendant and the relief can be entirely obtained through the
personal disobedience of the defendant, then the plaintiff may bring the suit in relation to the property
any of the following courts
(a) the court within the local limits of whose jurisdiction the property situated; or is situated; or
(b) the court within the local limits of whose jurisdiction, the defendant actually and voluntarily
resides, or carries on business, or personally works for gain
Explanation to Section 16: The explanation provides that the term “property” employed in the section
refers to the property. The courts of this country have no jurisdiction to entertain the suit in respect of
property situated outside India.
Local or Territorial Jurisdiction

Section 17:- Suits for immovable property situate within jurisdiction of different courts: Section 17
provides that “where a suit is to obtain relief respecting, or compensation for wrong to, immovable
property situated within 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 the subject-matter of the suit, the entire claim is cognizable by such court.”
Section 17 is supplementary to the provisions of Section 16 Section 17 is concerned with Clauses (a)
to (e) of with Clauses (a) to (e) of Section 16 except (f) of Section 16.
Section 17 of the code provides that where a suit is to obtain relief in respect of immovable property
of immovable property situated in jurisdiction of different courts, the suit can be brought in any of the
courts and such courts deal with the whole of the property though some portion of it situated outside
its jurisdiction.

Section 17 provides for:
(a) A choice to the plaintiff as to forum for instituting the suit,
(b) Section 17 is applicable where several properties are situated in different districts or the same
property extends over several districts.
It can be concluded that when there is one cause of action and the basis of plaintiff’s claim is the
same in all the claims against the various defendants, one joint suit in respect of all the immovable
properties, whether situated within the jurisdiction of that court or within the jurisdiction different
of courts can be taken cognizance of provided that part of the property lies within the territorial
jurisdiction and the total claim is within its pecuniary jurisdiction.
Section 18: Place of suing where local limits of the jurisdiction of courts are uncertain
Section 18 is attracted where the jurisdiction cannot be determined due to uncertainty. While invoking
Section 18, the plaintiff shall have to convince the court about unsure jurisdiction. The court shall
proceed to entertain and try a suit relating to the property of uncertain jurisdiction only when it is
satisfied that there are reasonable grounds for such alleged uncertainty of jurisdiction.
Ingredients of Section 18(1)

(a) There must be an allegation as to uncertainty of the territorial jurisdiction of courts,
(b) The court must be satisfied that there is ground for the alleged uncertainty,
(c) The court must record a statement as to uncertain jurisdiction and thereupon proceed to entertain
and dispose of any suit relating to such immovable property,
(d) The decree passed by such court shall be legal and valid and shall have the same effect as if the
property was situated within the local limits of tis jurisdiction,
(e) Before entertain a suit, the court must satisfy itself whether it has pecuniary jurisdiction as to
subject-matter, if it has, then only it should proceed further otherwise not, because this section
only allows territorial jurisdiction and not pecuniary jurisdiction and in the absence of such the
court is not competent to pass a decree on such a suit. [Proviso to Section 18(I)]
Section 18(2) – Ingredients

Where a statement as to uncertainty of jurisdiction is not recorded and a decree is passed and such
decree is challenged on the ground that it was passed without jurisdiction then appellate or revisional
Court shall not allow such objection unless:
(i) it appears that no reasonable uncertainty existed at that time of suit;
(ii) such objection is taken in the court the first instance; and
(iii) there has been a failure of justice in consequence thereof.
Section 19 – Suits for wrongs to person or movable:

The section follows the maxim “mobilia sequuntur personam”, i.e., movable property follows the person.
y Section 19 is a special provision and applies to suits for compensation for wrongs to a person or to
movable property.
y It provides a proper forum for bringing a suit for damages for such wrongs.
y Suits for compensation for wrong person or movable property, may be done to person or property,
may be brought at the option of the plaintiff either at the place where:

(i) the wrong is committed, or
(ii) the defendant resides, or
(iii) the defendant carries on business, or
(iv) the defendant personally works for gain.
y This section does not apply to torts committed beyond the limits of India. Such cases fall within the
ambit of Section 20 [Govindan Nair versus Achutha Menon, (1915) ILR 39 Mad 443]
Section 20:- Other suits to be instituted where defendant resides or Cause of Action arises
Section 20 is a general provision covering all personal actions (i.e. relating to person or movable
property) and as the opening words state, it is subject to the provisions of Sections 16-19. Such
personal actions shall be instituted in a court within whose local jurisdiction-
(a) the defendant actually resides or carries on business, or.
(b) any of the defendants (where there are more than one) actually resides or carry on business, or
(c) the cause of part, action, wholly or in part, rises
In Sudha Kaushik versus Umesh Prasad Kaushik, AIR 2005 Guj 244, it was held that, in a matrimonial
petition filed under the Hindu Marriage Act, 1955, the jurisdiction of the court is to be decided with
reference to Section 19 of the Act, and not by reference to Section 20 of the Code of Civil Procedure,
1908. It was further held that where any of the conditions under section 19 of the Hindu Marriage Act,
1955 is satisfied within the jurisdiction of more than one court, Section 20 of the code may be attracted.
Jurisdiction of court by consent

y Parties cannot by agreement confer jurisdiction on court which it does not possess under the code
[Hakam versus Gammon, 1971 SCR (3) 314].
y When both parties are foreign, with part of the cause of action in a foreign country and a forum
selection clause with that foreign place as the chosen forum, well-settled principles of international
law also require the court in India to relinquish jurisdiction in favour of the chosen forum.
In ABC Laminart Private Ltd versus AP Agencies, Salem [1989 SCR (2) 1], it was observed that under
Section 20(c) of the code of civil procedure, 1908, subject to the limitation stated there before, every
suit shall be instituted in a court within the local limits of whose jurisdiction the cause of action,
wholly or in part arises. In Nanak Chand versus TT. Electricity supply Co. AIR 1975 Mad 103, the division
Bench of Madras High Court observed that competency of a court to try an action goes to the root of
the matter and when such is not competency found, it has no jurisdiction at all to try the case. It was
further held that where the objection based on jurisdiction is a matter which parties could waive and
it is in the sense if such jurisdiction is exercised by courts, it does not go to the core of it also as it
makes the resultant judgement a nullity. It was thus settled that principle where there may be two or
more competent courts which can entertain a suit consequent up or the part of the cause of action
having arisen there within, if the parties to contract agreed to vest jurisdiction in one such court to try
the dispute which might arise as between themselves the agreement would be different.
Objections to jurisdiction - Section 21

The object underlying Section 21 is to protect honest litigants and to avoid harassment to plaintiffs
who have bona-fide and in good faith initiated proceeding in a court which is later on found to be
wanting in jurisdiction. Dishonest litigants cannot take advantage of this provision (ONGC versus Utpal
Kumar Basu, (1994) 4 SCC 711). It is to be noted that under Section 21(1), no objection as to the place

of suing will be allowed by an appellate or revisional court unless the following three conditions are
fulfilled
(a) the objection was taken in the court of first instance,
(b) It was taken at the earliest possible opportunity and in cases where issues are settled at or before
the settlement of issues.
(c) There has been a consequent failure of justice.
It is important to take note that all three conditions must co-exist. (KP Ranga Rao versus KV
Venkatesham, (2015) 3 SCC 514)
Sub-section (3) of Section 21 makes it clear that the principles of this section applies to execution
proceedings also.
Objection as to subject – Matter of Jurisdiction

In Harshad Chiman Lal versus DLF Universal Ltd, (2005) 7 SCC 791, it was held that a Court cannot
adjudicate upon a subject-matter which does not fall within its province as limited or defined by law.
A jurisdiction as to the subject-matter a suit is regarded as essential, for jurisdiction over the subject
matter is a condition precedent or a sine qua non to the acquisition of authority over the matter and
the parties, and if the court does not possess that jurisdiction, a judgement given, an order made or
decree passed is absolutely null and void, which may be set aside in appeal, review or revision.
Res-Sub judice
Section 10 deals with a stay of suits. It provides that 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 and that the court in which the previous suit is pending is competent to
grant the relief claimed.
Conditions necessary for the application of Section 10

For the application of this section, the following conditions must be satisfied-
y that the matter in issue is the second suit is also directly and substantially issue in the first suit;
y that the parties in the second suit are the same or the parties under whom they or any them claim
litigating under the same title,
y that the court in which the first suit is instituted is competent to grant relief claimed in subsequent
suit (Krishna Kishore (Dead) through LRs versus District Judge, Fatehpur, 2014 (103) ALR 859).
In Balamukund Bhatia versus Lalit Bhatia, Civil Revision Petition no. 181/2018 decided by the High Court
of Judicature for Rajasthan at Jodhpur on 24 July 2020, the court held that Section 10 of the code will
not be applicable if issue in both the concerned matter is not directly or substantially common, and
judgements in both the matters may be contradictory with each the other but is within the gamut of
statutory framework. It was further held that the object behind Section 10 of Code of Civil Procedure,
1908 is to bar one of the courts having concurrent jurisdiction to try simultaneously. Even if the parties
are the same and courts are competent to try both the suits, the final decision reached in the previous
quit will operate as res-judicate in the subsequent suit.
The underlying object of Section 10 is
(a) to protect a person from multiplicity of suits or proceedings,
(b) to avert inconvenience to the parties and gives effect to the rule of res-judicata,

(c) to prevent the courts of concurrent jurisdiction from simultaneously entertaining and adjudicating
upon two paralleled litigations that are similar in respect of cause of action, subject-matter and
relief,
(d) to obviate the possibility of conflict of decisions made through two contradictory decrees in
respect of the same subject matter between the same parties.
“No court shall proceed with the Trial”: It does not operate as a bar to the institution of the subsequent
suit, but only bars a trial, if certain conditions are fulfilled. The rule applies to trial of a suit and not the
institution thereof (Indian Bank versus Maharashtra Co-operative Federation, AIR 1988 SC 1952)
“Previously instituted Suit”: It is the pendency of the previously instituted suit that continues a bar to
the trial of the subsequent suit. The term ‘Suit’ also includes “appeal”. Previously instituted suit means
suit instituted prior in time and not the one decided earlier.
“Matter in must be the same”: “Matter in issue” means the entire matter in controversy and not one of
the several issues in the suit. Unless the decision of the suit operates as res-judicata in the other suit,
it cannot be said that the matter in issue is directly and substantially the same in both the suits. The
matter for determination in the case of an application for stay under Section 10 is not what the basis
of the claim in the two suits is but what is the matter in issue in the two suits.
“Same Parties”: In Ashok Kumar Yadav versus Noble Designs Pvt Ltd, AIR 2006 Lal 237, it was observed
that for determining whether the matter in issue in the subsequently instituted suit is directly and
substantially in issue in the previously instituted suit, absolute identity of the parties in both the suits
is not a consideration.
The expression “the same parties” means the party between whom the matter substantially in issue
has arisen and also has to be decided. It has accordingly been held that the section does not become
inapplicable by reason of there being in addition a party against whom no separate and substantial
issue is raised.
“Suit must be pending”: Section 10 applies only when previously instituted suit is pending, in the same
court in which subsequent suit is brought, or in any other court in India or in any court beyond the
limits of or India established or continued by the Central government or, before the Supreme Court.
“Jurisdiction to Grant Relief”: In VP Vrinda versus India Devi, AIR 1995 Ker 57, it was observed that
the question of jurisdiction raised by the defendant is a question that is virtually between the plaintiff
and the court itself. The plaintiff invokes the jurisdiction to decide for itself whether it has jurisdiction
to try the suit before it. It was further held that there is nothing in Section 10 of the code to show or
suggest that if an issue of jurisdiction has been raised in a previously instituted suit, the defendant
cannot invoke the provision of section 10 of the code in subsequent suit unless he withdraws or waives
that objection.
“Title must be the same”: The parties to both the suits must be litigating under the same title. Same
title means the same capacity.
Inherent Power to grant stay

In MV Rajasekhar versus MV Rajamma, AIR 2004 Kant 280, it has been held that inherent jurisdiction
of the court to make ex-debito justitiae is undoubtedly affirmed by Section 151 of the Code but that
jurisdiction cannot be exercised so as to nullify the provisions of the code
Res-judicata
In Subramanian Swamy versus State of Tamil Nadu, AIR 2015 SC 460, the Supreme Court explained the
doctrine of res-judicata in the following words—

“The literal meaning of ‘res’ is ‘everything that may form an object of rights and includes an object,
subject-matter of the status and res-judicata literally means a matter adjudged, a thing judicially acted
upon or decided, a thing or matter settled by judgements.’
“Res judicata pro veritate accipitur” is the full maxim which has, over the years, shrunk to mere
res-judicata, which means that res-judicata is accepted for truth. The doctrine contains the rule of
conclusiveness of the judgement which is based partly on the maxim of Roman jurisprudence “interest
republicae ut sit finis litium” (it concerns the state that there be an end to lawsuits) and partly on the
maxim “nemo debet bis vexari pro una et eadem causa” (no man should be vexed twice over for the
same cause).
In Canara Bank versus NG Subbaraya Setty, AIR 2018 SC 3395, the Supreme Court has held that
“the doctrine of Res-Judicata, though stated to belong to the realm of procedural law, is not a mere
technical doctrine. It is a doctrine of fundamental importance that seeks to ensure that there is an end
to all litigation. This is the public policy of Indian Law as well.”
Scope
Section 11 embodies the rule of conclusiveness as evidence, or bars the plea of an issue tried in an
earlier suit founded on a plaint in which the matter is directly and substantially in issue and became
final.
Section 11 does not create any right or interest in the property, but merely operates as a bar to try the
same issue once over.
In Andanur Kalamma versus Gangamma (deceased) by LRs, (2018) 15 SCC 508, it was held that for the
purpose of applying the principle of res-judicata the case needs case to be subjected to the triple test
regarding -
(i) the factum of the identity of the parties,
(ii) cause of action, and
(iii) the subject matter.
It was further observed that to answer the subject matter test, it is necessary to determine in the first
place, what matter has been “directly and substantially” in issue in a previous case.
Furthermore, The Supreme Court in Rithwik Energy Generation (P) Ltd versus Banglore Electricity Supply
Co. Ltd, (2018) 17 SCC 223, endorsed the two tests laid down by the code for determination of what
matter has been “directly and substantially in issue” as opposed to being “collaterally and incidentally”
in issue in a case. The two test laid down are—
(i) whether the issue was “necessary” to be decided for adjudicating on the prime issue involved in a
case? If yes, was it decided?
Or
(ii) whether adjudication of the said issue is considered material and essential for its decision by the
court. The question must be decided keeping in view the facts of each case.
Res-judicata is a mixed question of fact and law
Res-judicata & Estoppel

The principle of res-judicata is a species of the principle of estoppel. When a proceeding based on a
particular cause of action has attained finality, the principle of res-judicata shall fully apply.

Q. Difference between Res judicata & Estoppel:
Res judicata Estoppel
A procedural doctrine. A part of the law of evidence.
The result of a decision of a court of law. A result from the acts (conduct or agreement)
of the part themselves.
It bears a multiplicity of suits. It prevents multiplicity of representation.
It prohibits a man from averring the same thing It prevents a party from averaging two
twice in successive litigations. contradictory things at different times.
It binds both the parties to litigation. It binds only par that who made the previous
Statement or showed the previous conduct
Conditions of Res judicata

In S Labbai versus Mohd. Hanifa, AIR 1976 SC 1569, the Supreme Court observed that it is not every
matter decided in a former suit that can be pleaded as res judicata in subsequent suit. To constitute
a matter res judicata, the following conditions must concur:
(i) The matter directly and substantially in issue in the subsequent suit or issue must be the same
matter which was directly and substantially in issue either actually (Explanation III) or constructively
(Explanation IV) in the former suit.
(ii) The former suit must have been a suit between the same parties or between suit between the
fame parties or between parties under whom they or claim.(Explanation VI)
(iii) The parties as aforesaid must have litigated under the same title in the former suit.
(iv) The court which decided the former suit must have been a court competent to buy the subsequent
suit or the suit is which such issue has been subsequently raised. (Explanation -II).
(v) The matter directly and substantially in issue in the subsequent suit must have been heard and
finally decided by the court in the first suit. (Explanation V).
Condition-I: Matter directly and Substantially in Issue

Matter in Issue.
Matter directly and substantially in issue Matters collaterally or incidentally in issue
Actually in issue Constructively in issue

(Explanation III) (Explanation IV)
“Matter in issue” in Section 11 of the code means the right litigated between the parties, i.e. the facts
on which the right is claimed or denied and the law applicable to the determination of that issue.
The Law is well settled that to invoke the bar of res-judicata, it is not necessary that the cause of
action in the two suits should be identical. It is only required that the matter directly and substantially
in issue should be the same in both the suits. The expression “no court shall try any or issue in which
the matter directly Substantially in issue has been directly substantially in issue in a suit and former
suit” in Section 11 suggests that if a finding is recorded, by a court in a former suit- on a question not

in issue between the parties, it will not operate as res judicata. A decision of a competent court only
on a matter in issue may be res judicata in another proceeding between the same parties. In order that
a matter decided in a former suit may operate as res judicata in a subsequent suit, it must have been
“directly and substantially in issue” in the former suit and not merely collateral or incidentally in issue
therein.
Matter constructively in issue (Explanation IV)

Explanation IV to section 11 by a deeming provision lays down that any matter which might and ought
to have been a ground of defence or attack, shall be deemed to have been a matter directly and
substantially in issue in such suit.
In State of Karnataka versus All India Manufacturers Organisation, (2006) 4 SCC 683, it was observed
that the object of Explanation IV to Section 11 is to compel the plaintiff or the defendant to take all the
grounds of attack or defence which were open to him. It was further held that a party is bound to bring
forward his whole case in respect of the matter in issue and cannot abstain from relying on or giving
up any ground which is in controversy and for consideration before a court and afterwards make it a
cause of action for a fresh suit.
Constructive Res-judicata - The Rule of constructive res judicata engrafted in Explanation IV of Section
11 of the code is an “artificial form of res judicata” and it provides that if a plea could have been taken
by a party in a proceeding between him and his opponent, he should not be permitted to take the plea
against same party with in a subsequent proceeding to the same subject matter.
Object of Constructive Res judicata - The object of constructive res judicata is threefold:—
(a) To compel the plaintiff or the defendant to attack or defend which were open to him.
(b) To put/bring forward all the grounds which the parties were aware at the time when the earlier suit
was instituted or written statement was filed, and
(c) To cut short litigation between the parties so that a person may not be axed again with regard to
the same matter.
Condition II - Two Suits

The explanation I of Section 11 of the code merely deals with the situation where two suits are pending
in court/courts of competent jurisdiction. In a situation when any of the suits is decided by the court
before another. Suit, then the decision given in that suit, irrespective of the fact whether it was filed
earlier or later, decision on issue bars re-trial of same issue.
The expression “former suit” means a previously decided suit, and the same interpretation applies to
appeal.
It is a settled law that Explanation I make it clear that if a decision is given before the institution of
proceedings which is sought to be barred by res-judicata and that decision is allowed to become
final or becomes final by operation of law, a bar of res-judicata would emerge. (Narayan Prabhu
Venkateswara Prabhu versus Narayana Prabhu Krishna Prabhu, AIR 1977 SC 1268)
Res-judicata is also applicable to execution proceedings of decrees as per Explanation VII to Section 11.
Condition III – The Same parties or parties under whom any of them claim.
The object underlying the doctrine of res-judicata is that if a proceeding originally instituted is proper,
the decision given therein is binding on all persons on whom a right or interest may devolve.

“Parties under whom they or any of them claim” compromise three classes-
(a) Parties actually present in the former suit,
(b) Parties claiming under the parties to the suit and
(c) Persons represented by a party in the former suit (Explanation VI).
Representative Suit:- Explanation to Section 11

This explanation provides that where persons litigate bona fide in respect of a public right or of a
private right claimed in common for themselves and others and all persons interested in such right
shall, for purposes of Section 11, be deemed to claim under the persons so litigating.
Conditions
(1) There must be a right claimed by one or more persons in common for themselves and others not
expressly named in the suit,
(2) The parties not expressly parties expressly named in the suit must be interested in such party,
(3) The litigation must have been conducted bona fide and on behalf of all the parties interested, and
(4) if the suit is under Order 1 rule &, all conditions laid down therein must have been strictly complied
with.
Res judicata and Public Interest litigation

It is to be noted that if the previous litigation was a bona fide public interest litigation in respect of a
right which was common and was agitated in common with others, the decision in previous litigation
would operate as res judicata in a subsequent. But if the earlier proceeding was not a bona fide public
interest litigation, subsequent proceedings would not be barred.
Res judicata between co-plaintiffs and co-defendants

For application of doctrine of Res-judicata between co-defendants/co-plaintiffs, four conditions must
be satisfied—
(i) There must be a conflict of interest between the plaintiffs/defendants concerned,
(ii) It must be necessary to decide the conflict in order to give the relief which the plaintiff/defendants
claim;
(iii) The Question between the plaintiffs/Defendants must have been finally decided.
(iv) The Co-Defendants or Co-plaintiffs were the necessary or proper party in the former suit.
Conditions 4: Litigation under same title

The expression ‘same title’ means ‘same Capacity’. The fourth condition of res-judicata is that the
parties in the subsequent suit must have litigated under the same title in the former suit.
In Union of India versus Pramod Gupta, (2005) 12 SCC 1, it was held that the test for res-judicata is
the identity of title in the two litigations and not the identity of the subject-matter involved in the two
cases.
It is to be noted that the crucial test for determining whether the parties are litigating is a suit under
in the title as in the same the previous suit is of the capacity in which whey sued were sued.
Condition V - Competent court

The operative part of the section requires that in order that a decision made in a former suit operates
as res-judicata in a subsequent suit, it is necessary that the court which made such decision must at

the time of making it be competent to try the subsequent suit or the suit in which the issue has been
subsequently raised.
The expression “competent to try such a subsequent suit” must refer to the jurisdiction of the court
to try the issue of the subsequent suit at the time when the first suit was brought.
It is important to take note that a decision in a former suit may operate as res-judicata, the court
which decided the suit must have either been-
(i) A civil court of competent jurisdiction,
(ii) A court of exclusive jurisdiction,
(iii) A court of concurrent jurisdiction competent to by the subsequent suit,
(iv) A court of limited jurisdiction competent to try the issue raised in the subsequent suit.
Condition VI- Matter must have been heard & finally decided in ‘former’ suit
The final condition of doctrine of res-judicata is that the matter directly substantially in issue in the
subsequent suit must have been heard and finally decided by a court in the former suit.
In Pandurang Ramchandra versus Shantibai Ramchandra, 1989 Supp (2) SCC 627, it was held that
this section requires that there should be a final decision on which the court must have exercised its
judicial mind. It was further held that if the former suit was dismissed by a court want of jurisdiction,
or for default of plaintiff’s appearance, or on the ground of non-joinder or mis-joinder of parties, or
that there was a technical defect, the decision not being on merits, would not operate as res judicata
in a subsequent suit.
Institution, Frame & Parties to Suit

Institution of suit: Section 26 of the code states that “every suit shall be instituted by the presentation
of the plaintiff, or in such other manner as may be prescribed. In every plant, facts shall be proved by
affidavit.”
Order IV and Section 26 of the code provide for institutions of suit. It is to be noted that generally,
proceeding which does not commence with a plaint is not a suit (Usman Ali Khan versus Sagarmal,
AIR 1965 SC 1798)
In Salem Advocate Bar Association versus Union of India, AIR 2005 SC 3353, it was observed that the
provisions incorporated under Section 26(2) now require the plaint to be accompanied by an affidavit
and the person verifying the pleadings to furnish an affidavit in support of the pleadings [Order VI, Rule
15(4)]. The affidavit required to be filed under amended Section 26(2) and Order VI Rule 15(4) of the
code has the effect of fixing additional responsibility on the deponent as to the truth of facts stated in
the pleadings. It is, however, made clear that such an affidavit would not be evidence for the purpose
of the trial.”
However, the term “suit” is nowhere defined in the code, but the Privy Council in Hans Rai versus
Dehradun Tramway Ltd, AIR 1935 PC 63, defined the term suit as the term “Suit” ordinarily means and
apart from some context must be taken to mean a civil proceeding instituted by the presentation of
plaint.
Essential of Suits – There are four essential of suits—
(i) Two parties i.e. opposing parties,
(ii) Cause of Action,
(iii) Subject -Matter,
(iv) Relief claimed.

(1) Two parties (opposing parties): There must be at least one plaintiff and one defendant to contest
the suit.
(2) Cause of action: Every suit is required to contain the cause of action i.e. course or the set of
circumstances leading to a suit. Every plaint is required to disclose a cause of action cause of
action basically means the fact or facts whose existence entitles the party to seek redress in the
court.
(3) Subject Matter: The suit must contain the subject- matter i.e., the right or property claimed in the
suit. The court pronounces judgement on rights of the parties to the subject- matter of the suit.
(4) Relief claimed: Every suit must contain the relief claimed by the plaintiff in the absence of any
relief, the suit is not tenable. Further, relief claimed in the plaint should be stated specifically.
Order 1, Rule 1- Joinder of Plaintiff

Rule 1, Order 1 provides for joinder of plaintiffs. It states that all persons may be joined in one suit as
plaintiffs, if the following two conditions are satisfied:
y when the right to relief is alleged to exist in each plaintiff (whether jointly, severally or in the
alternative) arises out of the same act or transaction or series of Acts and transactions and,
y the case is of such a character that, if such a person brought separate suits, any common question
of law or fact would arise.
Objective
1. Firstly, to avoid multiplicity of Suits,
2. Secondly, time, to prevent wastage of time
3. Thirdly, to avoid unnecessary expenses of the parties to the suit,
4. Fourthly, to prevent harassment and parties.
Order 1, Rule 3- Joinder of Defendant

Order 1 Rule 3 states all persons may be joined in one suit as defendants if the following two conditions
are fulfilled-
y When the right to relief is alleged to exist against them (whether jointly, severally or in the alternative)
arising out of the same act or transaction, or series of Acts or transactions, and
y The case is of such a character that, if separate suits were brought against such persons, any
common question of law or fact would arise.
Necessary of Proper Parties
Necessary Party Proper Party
It is one whose presence is indispensible to the It is one in whose absence an effective

constitution of the suit, against whom the relief order can be passed, but whose presence is
is sought and without whom no effective order necessary for complete and final decision on
can be passed. the question involved in the proceeding.
In Absence of necessary party no decree can be In Absence of a proper party a decree can be
passed. passed so far as it relates to the parties before
the court.

In Kasturi versus Iyyamperumal, (2005) 6 SCC 733, it was held that two tests have been laid down for
determining the question whether a particular party is necessary party to a proceeding -
(1) There must be a right to some relief against such party in respect of the matter involved in the
proceeding in question, and
(2) It should not be possible to pass an effective decree in absence of such a party.
Order 1, Rule 9- Non-joinder or Misjoinder of Party

Misjoinder of Parties – Where two or more parties are joined as plaintiff or defendant in one suit in
contravention of order 1, Rule 1 and Rule 3 respectively, and they are neither necessary nor proper
parties, it is a case of misjoinder of parties.
Non-Joinder of Parties - When a person, who is necessary or a proper party to a suit has not been
joined as a party to the suit, it is a case of non-joinder.
In Diwakar Srivastva versus State of MP, AIR 1984 SC 468, it was held that the general rule is that a suit
cannot be dismissed only on grounds of non-joinder or mis-joinder of parties. Nor a decree passed by
a competent court on merits will be set-aside on the ground of misdescription of the defendant. This
rule does not apply in case of non-joinder of a necessary party.
Order I Rule 9 mandates that no suit shall be defeated by reason of misjoinder or non – joinder of
parties, but the proviso to Rule 9 clarifies that non-joinder of a necessary party is sufficient ground for
dismissal of suit because no effective decree or order can be passed in the absence of necessary party.
The Supreme Court in Competition Commission of India versus SAIL, (2010) 10 SCC 744, held that while
non-joinder of necessary parties may prove fatal, the non-joinder of proper parties may not be fatal to
proceedings, but would adversely affect interest of justice and complete adjudication of proceedings
before the appropriate forum.
Order 1 Rule 13- Objections as to non-joinder or misjoinder

Order 1 Rule 13 provides that all objections as to non-joinder or mis-joinder of parties must be taken
at the earliest opportunity, and in any case before the settlement of issues. If that stage has gone and
no objection is taken; it shall be deemed that the objections have been waived. In Church of Christ
Charitable Trust and Educational Charitable Society versus Ponniamman Educational Trust, (2012) 8
SCC 706, it was held that all objections on the ground mis-joinder or non-joinder of parties must
be taken at the earliest opportunity, otherwise they will be deemed to have been waived. But if the
objection as to non-joinder of necessary at the earliest stage and the plaintiff fails to join or declines
to add necessary party, he cannot be subsequently allowed in appeal to rectify the error by applying for
amendment. It was further held that where the plaintiff persists in not impleading a necessary party
in spite of objection, the consequences of non-joinder may follow.
Order 1, Rule 10- Striking out substituting or adding the parties

Order 1, Rule 10(1): Suit in the name Plaintiff or addition of party of wrong plaintiff or additions of party
Rule 10 order 1 provides that where a suit has been instituted in the name of the plaintiff or where it is
doubtful whether it has been instituted in the name of the right plaintiff, the court may at any stage of
suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary
for the determination of the real matter in dispute, it may any other person to be substituted or added
as plaintiff upon such terms as the court thinks fit and just.

In Pankajbhai Rameshbhai Zalavadiya versus Jethabhai Kalabhai Zalavadiya, (2017) 9 SCC 700,it was
held that the power to implead party can also be exercised by the court Suo-moto. In Robin Ramjibhai
Patel versus Anandibai Rama, (2019) I SCC Civ 272, it was held that to bring a case within this sub-rule,
the following three conditions must be fulfilled-
(i) The suit must have been filed in the name of a wrong person as plaintiff,
(ii) Such mistake must be bona fide, and
(iii) The substitution or addition of the plaintiff is necessary for the determination of real matter in
dispute.
Order 10, Rule 2 – Striking out or adding parties

Rule 2, Order 10 provides that “the court may at any stage of the proceedings, either upon or without
the application of either party, and on such terms as may appear to the court to be just, order that
the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that
the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose
presence before the court may be necessary in order to enable the court effectually and completely to
adjudicate upon and settle the question involved in the suit.”
In Mumbai International Airport versus Regency Hotels Ltd, AIR 2010 SC 3109, the Supreme Court held
that Rule 10(2) provides that a court may, at any stage of the proceedings, either upon or even without
any application, and on such terms as may appear to it be just, direct that any of the following persons
may be added a party:
(i) any person who ought to have been joined as a plaintiff or defendant and is not so joined, or
(ii) any person whose presence before court may be necessary in order to enable the court to effectively
and completely adjudicate upon and settle the question involved in the suit.
In Gurmit Singh Bhatia versus Kiran Kant Robinson, (2020) 13 SCC 773 - it was held that two considerations
especially will have to be kept in mind before exercising powers, namely:
(i) the plaintiff is a dominus litis. He is the best judge of his interest.
(ii) if the court is satisfied that the presence of a particular parson is necessary to effectively and
completely adjudicate all the disputes between the parties, irrespective of the wishes of the
plaintiff and join a person as party to a suit
Transposition of Parties - In transposition a person who is already on record as a plaintiff or a defendant
seeks transposition from one capacity to another capacity, i.e., from plaintiff to defendant or vice-
versa. This can be done either on an application by a party or by a court suo-moto.
No such transposition, however, can be allowed if it alters the character of the suit or causes prejudice
to the opposite party.
Multifarious Suit
Misjoinder of defendants and cause of actions in a suit is called multifariousness which takes place
where in a suit there are two or more defendants and two or more causes of action, but different
causes of action have been joined against different defendants separately. The joinder of such separate
causes of action and separate defendants make the suit bad for multifariousness. The objection on the
ground of multifariousness should be taken at the earliest opportunity and any objection not so taken
shall be deemed to have been waived.

Order 1, Rule 8 - Representative Suit
Order 1 Rule 8 provides that when there are a number of persons similarly interested in a suit, one or
more of them can, with the permission of the court or upon a direction from the court, sue or be sued
on behalf of themselves and others.
“Representative Suit” is an exception to the general rule that all persons interested in a suit ought to
be made parties thereto so that the matters involved therein may be finally adjudicated upon and fresh
litigation over the same matters may be avoided.
Exception Requisites of Representative Suit

In TN Housing Board versus TN Ganpathy, (1990) 1 SCC 608, it was held that the following condition to
be fulfilled for the application of this rule—
(i) The parties must be numerous,
(ii) They must have the same interest in the suit,
(iii) The permission must have been granted or direction must have been given by the court;
(iv) Notice must have been issued to the parties whom it is proposed to represent in the suit.
(a) Numerous Parties: The first requirement for the application of Rule 8 is that numerous persons
must be interested in the suit. The question whether the parties can be said to be “numerous” must
be decided by the court upon the fact of each case taking into account the nature of controversy, the
subject-matter in dispute and so on.
(b) Same Interest: The second requirement for the maintainability of the representative suit is that
the person on whose behalf the suit is instituted must have the same interest. The interest must
be common to them all or they must have a common grievance which they seek to get redressed.
Community of interest, therefore, essential and it is a condition precedent for bringing a representative
suit.
(c) Leave/Permission of the court: For a representative suit, the court’s permission is mandatory. The
plaintiff or defendant in a representative suit need not obtain the previous consent of the persons
whom he seeks to represent but the suit can be treated as representative only when it is instituted/
defended with the permission or direction of the court. Such permission may be obtained during the
pendency of the suit or even at the stage of appeal.
(d) Notice: The fourth condition is that notice must have been issued to all the concerned parties who
are proposed to be represented in the suit. Rule 8(2), Order 1 provides that the court shall, in every
case where permission or direction is given, give notice of the institution of the suit to the persons so
concerned either by personal service or by public advertisement where, because of number of persons
or any other cause, such notice is not reasonably practicable.
Notice under this provision is mandatory and pore-condition for trial of the suit
Order 1 Rule 8(6) and Res-judicata: Order -1 Rule 8(6) declares that a decree passed in a representative
suit shall be binding on all persons on whose behalf or for whose benefit, such suit is instituted or
defended. At the same time, Explanation VI to Section 11, provides that 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 claims under
the persons so litigating. Thus, a decree passed in a representative suit operates as res-judicata is a
subsequent suit against such an interested person although they may not have been added as a party.

Frame of Suit
Order 2 deals with the frame of the suit. It prohibits splitting of claims. The intention of the legislature
underlying provision appears to be that as far matters in dispute as possible all between the parties
relating to the same cause of action should be disposed-off in the same suit so as to prevent further
litigation.
y Every suit must include the whole of the plaintiff’s claim in respect of the cause of action and as far
as practicable, all matters in dispute between the parties be disposed- off finally (Order 2, Rule 1)
y Every suit must include the whole of the claim to which the plaintiff is entitled in respect of the
cause of action and where the plaintiff omits to sue for or intentionally relinquishes any portion
of his claim, he shall not afterwards be allowed to sue in respect of the portion so omitted or
relinquished (Order 2, Rule 2). In Parmod Kumar versus Zalak Singh, (2019) 6 SCC 621, it was held that
the provision of Order 2, Rule 2 is based on the cardinal principle of law i.e. a defendant should not
be vexed twice for the same cause.
Conditions
To make the rule applicable, the following three conditions must be satisfied -
(i) where the cause of action on which the previous suit was filed forms the foundations of the
subsequent suit;
(ii) where the plaintiff could have claimed the relief sought the relief sought in the subsequent suit,
in the earlier suits, and
(iii) Both suits are between the same parties.
[Coffee Board versus Ramesh Exports Pvt. Ltd., AIR 2014 SC 2301.]
Pleadings
Pleadings provide the guide for the proper mode of trial. They demonstrate upon which party the burden
of proof lies, and who has the right to open the case. They also determine the range of admissible
evidence which the parties should adduce at the trial. They also lay down the limit of the relief that
can be granted by the court. Pleadings are thus the foundation of litigation. [Maria Margarida Sequeria
Fernandes versus Erasmo Jack de Sequeria (Dead) through CRs, (2012) 15 SCC 370]
Pleading (Order 6, Rule 1)
Plaint Written Statement

y Pleadings include a statement of parties or counsel recorded before the framing of issues, for
clarification of the points in dispute and also averment but not a document referred to in the plaint.
(Ganga Bai versus Punau Rajwa, AIR 1956 Nag 261)
y In Bir Singh versus Kishan Chand, AIR 2007 HP 24, it was held that only plaint and written statements
are part of pleadings in the strictest sense of the term. Replication does not constitute a thereof.
Wherein, the instant case of suit of possession, the plaintiff had stated categorically that his father
was earlier in exclusive possession of the suit land as a tenant under the previous owners, and that
therefore proprietary rights were conferred upon him in the terms of Himachal Pradesh Tenancy and
Land Reforms Act, 1972, it was held that there would be no need for him to have filed replication to

the plea taken by the defendants in their written statement, in as much as replication is not a part
of pleadings.
General Rules of Pleading

The basic rules of pleading that emerge from Order 6 are as follows-
(i) Every pleading must state only facts and not the law;
(ii) Pleading must state all material facts and material facts only.
(iii) Pleading must state material facts and not evidence, and
(iv) Pleadings must state the facts concisely but with precision and certainty.
(1) Pleading must state only facts and not law: A Pleading must not set forth a public statute, for which
the court is bound to take judicial notice of it. It should set out only facts and the relief sought and not
the law or the particular section of the statute under which the claim is made (Sansar Chand Melaram
versus Sham Lal Dhanpat Rai, AIR 1957 P&H 307). Parties should not plead conclusions of Law or of
mixed fact and law. It is for the court to declare the law arising upon the facts before it. The parties
should only state the facts on which they rely for their claim or defence.
(2) Every pleading must state material facts and material facts only: In Manda Yadaiah versus
Thoomukumtla Karunakar Reddy, AIR 2008 AP 251, it was observed that Order VI Rule 2 of the code
mandates that the pleadings must be concise, brief and to the point. It also directs that matters that
constitute evidence must not be incorporated in the pleadings.
It is the fundamental rule of pleading that a party cannot approbate and reprobate.
Particulars versus Material facts: The Supreme Court in Virendra Nath versus Satpal Singh, AIR 2007
SC 581, observed that the distinction between ‘material fact’ and ‘particulars’ cannot be overlooked.
Material facts are primary and basic facts which must be pleaded by the plaintiff or by the defendant
in support of him either to prove the case setup his cause action or defence. Particulars, on the other
hand, are the details in support of material facts pleaded by the party. Particulars are the details of the
case. They amplify, refine and embellish material facts by giving distinctive touch to the basic contours
of a picture already drawn so as to make it full, more clear, more detailed and more informative.
Particulars thus ensure the conduct of a fair trial and would not take the opposite party by surprise.
(3) Pleadings must state material facts and not evidence: Every pleading should only contain facta
probanda i.e, material fact upon which the party pleading relies for his claim or defence, and not facta
probantia, i.e. the evidence by of which they are to be proved. It is to be noted that pleadings have got
to be specific incorporating necessary details which are to be substantiated by way of evidence and if
the pleadings are silent on the specific grounds or issue, it would not be open to the aggrieved party
to fill in the gaps by improving its case by adducing evidence contrary to the pleadings.
(4) Every pleading must state material facts in a concise form: The pleadings must be clear, specific
and should contain requisite pleas or data. It is a settled legal proposition that “as a rule relief not
founded on the pleadings should not be granted.” Therefore, a decision of a case cannot be based on
grounds outside the pleadings of parties. It is also a settled legal proposition that no party should be
permitted to travel beyond its pleading and parties are bound to take all necessary and material facts
in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions
that are likely to be raised and they may have the opportunity of placing the relevant evidence before
the court for its consideration.

Pleadings vis-a-vis Writ: In State of Gujrat versus SC Agarwal, AIR 1998 Guj 193, it was held that there
is a distinction between the pleading under the code and a writ petition or a counter affidavit. It was
observed that while in a pleading i.e. plaint and written statement, the facts and no evidence are
required to be pleaded, however, in a writ petition or in the counter affidavit, not only the facts but
also the evidence in proof of such facts, have to be pleaded and annexed to it.
Departure (Order 6, Rule 7): General deviation or departure from the original pleading is not permissible,
except by way of Amendment under Order 6, Rule 17, and no party can raise any new ground of claim
or contain an allegation of fact inconsistent with his previous pleadings. The Supreme Court in Suzuki
Parasrampuria Suitings (P) Ltd versus Official Liquidator, AIR 2018 SC 4679, reiterated that the party
cannot contend what is contrary to the pleadings. The Court stated that a litigant can take different
stands at different times but cannot take contradictory stands in the same case. A party cannot be
permitted to approbate and reprobate on the same facts and take inconsistent shifting stands.
Pleading to be signed and verified- (Order 6, Rules 14 and 15)

The signing of plaints is merely a matter of procedure. If a plaint is not signed by the plaintiff or by
a person duly authorised by him in that behalf, and the defect is discovered at any time before the
judgements, the court may allow the plaintiff to amend the plaint by signing the same. If the defect is
not discovered until the case comes on for hearing before an appellate court the appellate court may
order the amendment to be made in that court. The appellate Court ought not to dismiss the suit or
interfere with the decree of the lower court merely because the plaint is not signed. The omission to
sign the plaint or verify the plaint is not such a defect as could affect the merits of the case or the
jurisdiction of the court. It can be set right even after the expiration of the period of limitation for
filing the suit. [All India Reporter versus Ramchandra, AIR 1961 Bom 292]. Similarly in Haryana State
Cooperative Supply and Marketing Federation Ltd versus Jayab Textiles, AIR 2014 SC 1926, the Supreme
Court reiterated that “procedural defects and irregularities, which are curable, should not be allowed
to defeat substantive wrights or to cause injustice procedure which is handmaiden to justice should
never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use.”
Order 6 Rule 15 provides that verification of plaint is not evidence on which a suit can be decreed
even if the defendant does not appear (Rose & Co. Scriven; (1916) ILR 43 Cal 1001). The object of this
rule is to fix responsibility for allegations made in the plaint on the person who verifies and this is to
ensure that false allegations are not made freely and recklessly. It is to be noted that false verification
is an offence punishable under Section 191 and 193, the Indian Penal Code, 1860.
Insertion of sub rule (4) in Rule 15 provides that the person verifying the pleading shall also furnish an
affidavit in his pleadings. This insertion is in consonance with the amended Section 26 which requires
that in every plaint, facts shall be proved by an affidavit by this sub-rule (4), the requirement of
affidavit it not limited only to plaint but also extends to written statement as well.
Striking out and Amendment of Pleadings:

The court is empowered to strike out any pleadings 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
process of the court. [Ajay Arjun Singh versus Sharadendra Tiwari, (2017) 3 SCC (Civ) 431]. This rule is
based on ex-debito justitiae (in the interest of justice).
In Abdul Razak versus Mangesh Rajaram Wagle, (2010) 2 SCC 432, the Supreme Court observed that
bare reading of Order 6 Rule 16 of the code makes it clear that a court may order striking of pleadings
in following cases—

(a) where such pleading is unnecessary, scandalous, vexatious or frivolous,
(b) where such pleading tends to embarrass, prejudice, or delay fair trial of the suit, or
(c) where such pleading is otherwise an abuse or process of the court.
Amendment of Pleadings
The object of the Rule 17, Order 6 is that the court should try the merits of the cases that come before
them and should consequently allow all amendments that may be necessary for determining real
question in controversy between the parties provided it does not cause injustice or prejudice to the
other side.
In State of AP versus Pioneer Builders, (2006) 12 SCC 119, it was observed that provisions for the
amendment of pleadings for promoting for defeating are intended the ends of justice and not them.
It is to be noted that the provisions of Rule 17 Order 6 are not exhaustive of the power of a court in a
matter of amendment of pleadings. The power of amendment is inherent in the court and where Rule
17 does not apply, resort can be had to Section 151 of the code.
Nature of Courts Power to Amend

Order 6 Rule 17 of the code consists of 2 parts, in terms of the language as also of subject – matter.
Whereas the first part is discretionary (may); the second part is imperative (shall).
(a) The first part leaves it to the court to order amendment of pleading. It confers wide and unfettered
discretion on the court in granting permission to a party to the suit to alter or amend his pleadings
in such a manner and on such terms as it appears to the court as just.
(b) However, the second part is mandatory. It mandates that once the court is satisfied that the
amendment sought in pleading is necessary for deciding the real question in controversy between
the parties, the court has no discretion in the matter and the amendment has to be allowed by the
court.
Doctrine of Relation Back: In LC Hanumanthappa versus Shiv Kumar, (2016) 1 SCC 332, it was observed
that an amendment relates back to the pleading, but the doctrine is not absolute, unqualified or of
universal application. In appropriate cases, the court may order that the amendment would take effect
from the date an application was made or the amendment was allowed and not from the date when
the plaint or written statement was presented.
In Dalip Kaur versus Major Singh, AIR 1996 P&H 107, it was observed that the following principles should
be borne in mind in dealing with applications for amendment of pleadings:
(i) all amendments should be allowed which are necessary for determining real controversies in the
suit,
(ii) the proposed amendment should not alter and be substitutive for the cause action on the basis
of which the original is was raised,
(iii) inconsistent and contradictory allegations in negation to the admitted position of facts, or mutually
destructive allegations of facts, would not be allowed to be incorporated by means of amendment,
(iv) amendment of claim or relief barred by time should not be allowed,
(v) proposed amendments should not cause prejudice to the other side which cannot be compensated
by means of costs,
(vi) no amendment should be allowed which amounts to or results in defeating a legal right to the
opposite party on account of a lapse of time.

(vii) no party should suffer on account of technicalities of law and the amendment should be allowed
to minimize the litigation between the parties;
(viii) the delay in filing petitions for amendments of pleadings should be properly compensated for, by
costs,
(ix) error or mistake which if not fraudulent should not be made a ground for rejecting the application
for amendments of pleadings,
(x) The Above principles are illustrative & not exhaustive.
At any stage of Proceedings

In Salem Advocate Bar Association versus Union of India, (2005) 6 SCC 344, it was held that proviso to
Rule 17, as inserted by the Civil Procedure (Amendment) Act, 2002 restricts and curtails the power of
the court to allow amendment in the pleadings by enacting that no application for amendment should
be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of
due diligence, the party could have raised the matter for which the amendment is sought before the
commencement of trial.
Limitation – In Prithipal Singh versus Amrik Singh, (2013) 9 SCC 576, it was held that no period of
limitation is prescribed either in the Code of Civil Procedure, 1908 or in the Limitation Act for making
an application for amendment. But it is well settled law that ordinarily, an amendment of pleading
should not be allowed if, the effect of such amendment is to deprive a party of a right which has been
acquired by virtue law of limitation.
Plaint and written Statement

Plaint
Section 26 provides that every suit shall be instituted by the presentation of plaint or in such other
manner as may be prescribed. ‘Plaint’ is a statement of claims, a legal document, by the presentation
of which the suit instituted. The plaintiff states the material facts upon which he relies in support of
his case and claims the relief he desires. Every plaint should contain the following particulars:
(i) The name of the court in which the suit is brought,
(ii) The name, description and place of residence of the plaintiff,
(iii) The name, description and place of residence of the defendant;
(iv) where the plaintiff or defendant is a minor or a person of an unsound mind, a statement to that
effect,
(v) The facts constituting the cause of action and when it arose,
(vi) The facts showing that the court has jurisdiction,
(vi) A statement of the value of the subject-matter of the suit for the purpose of jurisdiction and court
fees,
(viii) The reliefs claimed by the plaintiff, simply or in the alternative.
(ix) where the plaintiff files a suit in a representative capacity, the facts showing that the plaintiff has
an actual exiting interest in the subject-matter and that he has taken steps that may be necessary
to enable him to file such a suit,
(x) where the plaintiff has allowed a set- off or relinquished a portion of his claim, the amount so
allowed or relinquished.

(xi) where the suit is for recovery of money, the precise amount claimed,
(xii) where the suit is for accounts or mesne profits or for movables in the possession of the defendant
or for debts which cannot be determined, the approximate amount or value thereof
(xiii) where the subject matter of the suit is immovable property, a description of the property sufficient
to identify it, for example, boundaries, survey numbers, etc.
(xiv) The interest and liability of the defendant in the subject matter,
(xv) where the suit is time-barred, the ground upon which the exemption from the law of limitation is
claimed [M/S. Shanti Conductors (P) Ltd versus Assam SEB, (2020) 2 SCC 677].
y Parties to Suit,
y Cause of Action,
PLAINT y Limitation,
y Relief claimed.
y Jurisdiction and Valuation
(a) Parties to Suit:
(1) There must be two parties in every suit i.e. plaintiff and defendant.
(2) All particulars, such as name, father’s name, age, place of residence, etc. which are necessary for
the identification of the parties, must be stated in the plaint.
(b) Cause of Action: “Cause of Action” means every fact, which it is necessary to establish to support a
right or obtain a judgement. In ABC Laminart (P) Ltd. versus AP Agencies, (1989) 2 SCC 163, it was settled
that cause action has nothing to do with the defence which may be set up by the defendant, nor does
it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to grounds set-
forth in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks
the court to arrive at the conclusion in his favour. It was further held that it must be antecedent to the
institution of the suit and on the basis of that cause of action, the suit must have been filed.
(c) Jurisdiction of Court: The plaint must state all the facts showing how the court has pecuniary and
territorial jurisdiction over the subject matter of the suit. When the jurisdiction of a court to entertain
the suit is disputed by the defendant, the court may frame the issue to that effect and decide the
same before deciding other issues. Plea of jurisdiction has to be decided on the basis of averments
made in the plaint.
(b) Valuation: The plaintiff must state in the plaint the valuation of the subject matter of the suit
for the purposes of pecuniary jurisdiction of the court and court fees. Prima facie, it is the plaintiff’s
valuations in the plaint that determines the jurisdiction of the court and not the amount for which
ultimately the decree may be passed by the Court.
(e) Limitation: Order 7 Rule 6 provides that 7 where suit is barred by limitation, it is necessary for the
plaintiff to show the ground of exemption in the plaint. The proviso empowers the court to permit
the plaintiff to claim exemption from the law of limitation on any new ground so long as that ground
is not inconsistent with the grounds mentioned in the plaint. The proviso covers the situation where
the ground for exemption from limitation is not specifically pleaded in the plaint. If no ground of
exemption is shown in the plaint and the suit appears from the statement in the plaint to be barred
by the limitation, the plaint shall be rejected.
(g) Relief: Order 7 Rule 7 confers power upon the court to provide relief in a given situation. According
to Rule 7, every plaint shall specifically state 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.
Where the plaintiff is entitled to more than one in relief with respect to the same cause of action, it is
open for him to claim all or any of such reliefs. But if he omits, except with the leave of the court, to
sue for any particular relief, he will not afterwards be allowed to sue for the relief so omitted.
In Union of India versus Ibrahim Uddin, (2012) 8 SCC 148, it was settled that relief not founded on
pleadings cannot be granted. No decision can be based on grounds outside the pleadings of the
parties. No evidence is permissible in the absence of pleadings. A Court cannot travel beyond the
pleadings and no party can lead evidence on an issue not raised in the pleadings.
Return of Plaint: In Auto Engineering Works versus Bansal Trading Company, (2001) 10 SCC 630, it was
held that where at any stage of the suit, the court finds that it has no jurisdiction, either territorial or
pecuniary or with regards to the subject–matter of the suit, it will return the plaint to be presented
to the proper court in which the suit ought to have been filed. However, the court cannot dismiss the
suit. In EXL Careers versus Frankfinn Aviation Services (P) Ltd, (2020) 12 SCC 667, it was settled that
Rule 10A prescribes the procedure to be followed by a court before the plaint is ordered to be returned
to be presented to the proper court. It is inserted to obviate the necessity of serving the summons on
the defendant where the return of the plaint is made after the appearance of the defendants in the
suit. It is to be noted that an appellate court can also return the plaint to be presented to the proper
court. (Order 7, Rule 10B)
The order returning the plaint is appealable

In ONGC versus Modern Construction and Co., (2014) 1 SCC 648, it was held that when the plaint is filed
in the proper court, after getting it back from the wrong court, it cannot be said to be a confirmation
of suit and the suit must be deemed to commence when a plaint is filed in the proper court.
Rejection of plaint: The provision incorporated in Order 7 Rule 11 is mandatory in nature [Dahiben
versus Arvindbhai Kalyanji Bhanusali, (2020) 7 SCC 366].
The plaint will be rejected in the following cases:
(a) Where the plaint does not disclose the cause of action
The court has to find whether plaint discloses the real cause of action or illusory cause of action
created by clever drafting. The court must be vigilant against camouflage or suppression and if a
suit is found to be vexatious and an abuse of the process of court, it should exercise its drastic
power under Rule 11 to reject the plaint. [Raghwendra Sharan Singh versus Ram Prasanna Singh,
(2020) 16 SCC 601].
(b) Where relief claimed is undervalued-
The value of the suit is required to be ascertained for the purpose of jurisdiction and court fees
where the relief is undervalued, the court will give an opportunity to the plaintiff to correct the
valuation within a time fixed, which may also be extended by the court. If the valuation is not
corrected within the time fixed or extended by the court the plaint will be rejected. Such rejection
amounts to a dismissal of the suit, though the plaintiff may present a fresh plaint under Order 7
Rule 13.
(c) Plaint is insufficiently stamped -
(i) where a plaint is written on paper insufficiently stamped, the court is bound to give the plaintiff
time to make good the deficiency. This follows the terms of clause (c) itself. A reasonable time

must be allowed after the court has decided that the court-fee paid is insufficient, and within
the time allowed, if the plaintiff cannot pay, he may apply to continue the suit as a pauper.
(ii) If the plaintiff fails to supply the requisite stamp-paper within the period fixed by the court,
the plaint may be rejected under this rule, even after it has been numbered and registered as
suit. The reason is that the power to reject a plaint under this rule is not exhausted when the
plaint has been admitted and registered [Padmanund Singh versus Anant Lal, (1907) 34 Cal 20].
(d) Suit barred by any Law - Order VII, Rule 11(d) applies to those cases only where the statement
made by the plaintiff in the plaint without any doubt or dispute shows that the suit is barred by
any law in force. Where the plaintiff in the plaint makes a statement that suit was within limitation
as the cause of action arose on a particular date, the provisions of Order VII Rule 11(d) cannot be
attracted.
(e) Where the plaint is not in duplicate- The plaint has to be filed in duplicate. If the said requirement
is not complied with, the plaint will be rejected.
Summons
When the plaintiff files a suit, the defendant has to be informed that the suit has been filed against
him, and that he is required to appear in court to defend it. The intimation which is sent to the
defendant by the court is technically known as summons. This is in consonance with the principle of
natural justice as no one can be condemned unheard (audi alteram partem).
Every summon shall be signed by the judge or such officer appointed by him and shall be sealed with
the seal of the court; and must be accompanied by a plaint. (Order V Rule 2). In Salem Advocate Bar
Association versus Union of India, (2003) 1 SCC 49, it was held that when a suit has been duly filed
by the presentation of a plaint, the court must issue summons to the defendant calling upon him to
appear and answer the claims of plaintiff by filing written statement within thirty days from the date
of service of summons.
It is to be noted that no summons however will be issued by the court if, at the time of presentation
of plaint, the defendant is present and admits the plaintiff’s claim.
Appearance in person – (Order IX rule 3)

A defendant to whom a summon has been issued may appear -
(a) in person, or
(b) by pleader duly instructed and able to answer all material questions relating to the suit, or
(c) by a pleader accompanied by some person able to answer all such questions.
Exemption for appearance in Person

No party shall be ordered to appear in person:
(a) unless he resides—
(i) within the local limits of the court’s ordinary original jurisdiction, or
(ii outside such limits, but at a place less than (1) 50 miles, or (2) 200 miles from the court house,
(Order V rule 4)
(b) who is a woman not appearing in public, or (Section 132)
(c) who is entitled to exemption under the code (Section 133)

Contents of Summons
(a) The summon must contain a direction whether the date fixed is for the settlement of issues only
or for the final disposal of the suit (Order V Rule 5).
(b) The summon should also contain an order to the defendant to produce all documents or copies
thereof in his possession or power upon which he intends to rely on in support of his case (Order
V Rule 7)
Modes of serving a summon

Direct Service Service By Court Service by Plaintiff Substituted Service Service by post
(a) Direct Service: This is an ordinary mode of service of summons.
y Order V Rule 12 - whenever it is practicable the summons must be served to the defendant in person
or to his authorised agent.
y Order V Rule 15 - where the defendant it is absent from his residence at the time of service of
summons and there is no likelihood of being found at his place/residence within a reasonable time
and he has no authorized agent, the summon may be reserved on any adult male or female member
of the defendant’s family residing with him.
A servant cannot be said to be a family member.
y Order V Rule 13 – In a suit relating to any business or work against a person, not residing within
territorial jurisdiction of court issuing the summons, it may be served to the manager or agent
carrying on such business or work.
y Order V Rule 14– In suit for immovable property, if the service of summons cannot be made on the
defendant personally and the defendant has no authorized agent, the service may be made on any
agent of the defendant in charge of the property.
y Order V Rule 11- Where there are two or more defendants, service of summons should be made on
each defendant.
(II) Service by Court- Order V Rule 9

(a) Summons to the defendant residing within the jurisdiction of the court shall be served through
court officer or approved courier service (Order 9 Rule 1).
(b) Summons can be reserved by registered post, speed-post, acknowledgment due, fax, message,
e-mail service or by any other permissible means of transmission (Order IX Rule 3).
(c) Where the defendant is residing outside the jurisdiction of the court, the summon shall be served
through whose jurisdiction the defendant resides (Order IX Rule 4)
(d) The court shall treat the refusal of acceptance as valid service (Order IX Rule 5). In Salem Advocate
Bar Association (2) versus Union of India, (2005) 6 SCC 344 it was held that where summons are
properly addressed, prepaid, and duly sent by registered post acknowledgment due, there will be
presumption of valid service of summon even in the absence of acknowledgment slip.
(II) Service by Plaintiff - Order IX Rule 9A (Dasti Summons)

Rule 9A Provides for the summons being given to the plaintiff for service on the defendant. Is in
addition to the normal mode of delivery of summons through Court and is mandatory. It is in addition
to other modes of service specified in sub-rule (1) of Rule 9. This amendment is bound to save time
spent on summons on defendants. The amendment came into force from 1 July 2002.

(IV) Substituted Services: Order IX Rule 17, 19-20
“Substituted service” means the service of summons by a mode which is substituted for the ordinary
mode of service of summons.
In Grama versus Bombay Steamships, AIR 1929 Bom 257, it was held that where a defendant refuses
to sign the acknowledgment, the provisions of the present rule must be complied with, namely, the
serving officer shall affix a copy outer door the summons on the outer door of the defendant’s house,
otherwise the summons cannot be said to have been duly reserved. Thus, if the defendant refuses to
acknowledge, is it not sufficient to leave a copy of the must be affixed on the outer door of the house.
In Dina Nath versus Upendra, AIR 1924 Cal 1004, it was held that the present rule enjoins that in
cases where the defendant cannot be found, the mode of service prescribed by this rule should not
be resorted to until the serving officer has used all due and diligence to find the defendant; and the
defendant could not be found. To justify such service, it must be shown that proper efforts were made
to find the defendant, for example, that the serving officer went to the place or places and at the times
where and when it was reasonable to expect to find him.
In CIT versus Kiran Devi, AIR 1967 Cal 359, it was held that under the amended rule where the summon
is sought to be served at the residence of the defendant, it must be shown that he was not only
absent, but what there was no likelihood of his being found at his residence within a reasonable time.
Thus, where at least two attempts were made to serve the notice personally and the process-server
was told that the defendant had gone and there was no information available as to the return of the
defendant within reasonable time, it was held that affixing the notice was justifiable and was a valid
service.
In National Aluminium Co. Ltd versus Lyong Heung Trading Co. Ltd, (2000) 9 SCC 25, it was observed
that substituted service is service in an artificial sense proceeding upon a fiction imported by necessity.
If the court resorts to it all the conditions laid down for it have to be fulfilled. Substituted service
should be affected as a last resort when ordinary steps for service fail. An application for substituted
service should not be allowed automatically. Service by publication should be ordered when the court
is satisfied that personal service is not possible.
Order V rule 20, required the court to satisfy itself, before ordering the substituted service, that:
(i) There is reason to believe that the defendant is deliberately avoiding the service of summons, or
(ii) for any other reason, the summons cannot be served in an ordinary way. After being satisfied with
either of the above, the court may older the substituted service in either of the following ways-
(a) by affixing a copy of the summons in some conspicuous place in the courthouse as well as in
the house in which in which the defendant it is known to have to have last resided on carried
on business or personally worked for gain,
(b) In such other manner as the court deems fit including publication in a newspaper.
(v) Service by Post - In Prakash Chander versus Sunder Bai, AIR 1979 Raj 108, it was held that when
an acknowledgment purporting to be signed by the defendant or his agent is received by the court,
or the defendant on his agent refused to take delivery of summon when tendered to him, the court
issuing the summons shall declare that the summons had been duly reserved on the defendant. The
same principle applies in a case where the summons was properly addressed, prepaid and duly sent
by registered post, acknowledgment due and the acknowledgment is lost or not received by the court
within thirty days from the date of issue of the summons. It was further observed that where the
summons sent by registered post is returned with an endorsement “refused”, the burden is on the
defendant to prove that the endorsement is false.

Written Statement
The written statement must only contain a statement in a concise form of the material facts on which
the party pleading relies for his defence, but not the evidence by which those facts are to be proved
(Order VI Rule 2). In Modula India versus Kamakshya Singh Deo, (1988) 4 SCC 619, it was held that there
is nothing in Rule 1 Order VIII which makes it mandatory for the court to pass a decree in favour of the
plaintiff straight away because a written statement has not been filed.
Order VIII Rule 1, it casts obligation on the defendant to file the written statement of his defence
within 30 days from the date service of summons on him. But where the defendant fails to file written
statement within the said period of thirty days, he shall be allowed to file the same on such other day,
as may be specified by Court for the reasons to be recorded in writing, but which shall not be later but
then ninety days from the date of service of summons.
In Kailash versus Nankhu, AIR 2005 SC 2441, the Supreme Court observed that “the extension of time
shall be only by way of exception and for reasons to be recorded in writing, however brief they may be,
by the court. In no case, the defendant shall be permitted to seek an extension of time when the court
is satisfied that it is a case of laxity or gross negligence on the part of the defendant or his counsel.
The court may impose costs for dual purpose:
(i) to defer the defendant from seeking any extension of time just for asking and
(ii) compensate the plaintiff for the delay and inconvenience caused to him.”
It was also held that order VIII rule 1 is directory and mandatory.
In Atcom Technologies Ltd versus YA Chunawala & Co., (2018) 6 SCC 639, Order VIII Rule 1 of the code
stipulates that the defendant shall submit the written statement within 30 days from the date of
receipt of summons. The proviso to the said provision confers discretion on the court to extend the
time for a maximum period of 90 days after recording reasons in writing. It is, however, well settled
that the provision, being part of procedural law, does not take away the procedural power of the Court
to accept the written statement beyond the period of 90 days in exceptionally hard cases.
In Dewanti Devi versus Radheshyam Tiwary, (2019) SCC online Pat. 28, the High Court of Patna explained
that Order VIII Rule 1A(3) provides that the documents, which have not been produced along with the
written statement, cannot be produced to court later on without the leave of the court. Thus, if a
document is to be produced by a defendant the same is to be produced with the written statement.
Subsequent production of documents can be done only if the court is satisfied with the grounds
explained for non-production of the documents at the time of filing of the written statement. In
Sugandhi (Dead) by LRs versus P Rajkumar Represented by his Legal Agent, (2020) 10 SCC 706, the
Supreme Court held that sub-rule (3) of Order VIII, Rule 1A, provides a second opportunity to the
defendant to produce the documents which ought to have been produced in the court with the written
Statement, with the leave of the court. The discretion conferred upon the court to grant such leave
is to be exercised judicially while there is no straight-jacket formula, this leave can be granted by the
court on a good cause being shown by the defendant. The Court further stated the court should take a
lenient view when an application is made for production of the document under sub-rule (3).
Set-off
Set-off: In Munshi Ram versus Radha Krishna, AIR 1975 P&H 112, it was ruled out that set-off is a pure
defence and simple, which by adjustment would wipe-off or reduce, the plaintiff’s claim. It was further
explained that as of statutory creations as in the rule, it is a combined defence and a counterclaim
combined defence to the extent of the plaintiff claim and a claim by the defendant in the suit itself
for the balance.

Conditions for applicability of the Rule: A defendant may claim a set-off under this rule, if the following
conditions are satisfied:
(I) The suit must be one for the recovery of money.
(II) As regards the amount claimed to be set-off:
(a) it must be an ascertained sum of money,
(b) Such sum must be legally recoverable
(c) it must be recoverable by the defendant or by all defendants if more than one,
(d) it must be recoverable by the defendant, from the plaintiff or all the plaintiffs, if more than
one. Thus, when the defendant is sued by the agent, he cannot set-off what is due to him from
the principal as the principal is not the plaintiff.
(e) it must not exceed the pecuniary limits of the jurisdiction of the court in which the suit is
brought, and
(f) Both parties must fill in the defendant’s claim to set-off, the same character as they fill in the
plaintiff’s suit.
Counter-claim
Counter–Claim: As per Order VIII, Rule 6A(2), the court is required to pronounce a final judgement in
the same suit both on the original claims and also on the counter-claim. In Ashok Kumar Kalra versus
Wing Commander Surendra Aghnihotri, (2020) 2 SCC 394, the Supreme Court held that Order VIII, Rule
6A does not put embargo on filing the counter-claim after filing the written statement, rather the
restriction is with respect only cause of action. This does not give absolute right to the defendant to
fill the counter-claim with substantive delay, even if the limitation period has not elapsed.
Further, the court has provided certain illustrative but not exhaustive factors to be taken into
consideration while entertaining cases on filing the counterclaims. These are as follows:
(a) Period of delay
(b) Prescribed limitation period for the cause of action pleaded
(c Reason for delay
(d) Defendant’s assertion of his right
(e) Cost of fresh litigation
(f) Injustice and abuse of process of law,
(g) Similar cause of action between the main suit and the counter-claim.
Appearance & non-appearance of parties

Order IX of the code enacts the law with regards to the consequence of their non – appearance. It also
provides a remedy for setting aside a decree passed against the defendant and for setting aside an
order of dismissal of the suit. The Provision incorporated under Order IX of the code is based on the
cardinal principle that every proceeding as far as possible must be carried on in the presence of both
the parties.
Appearance of parties to suit

As stated under Rule 1 of Order IX of the code, the parties to the suit are required to attend the court
either in person or by their pleaders on the day which has been fixed in the summons.

If the plaintiff or a defendant, when ordered to appear in person, does not appear before the court
and neither show the sufficient cause for his non–appearance, the court is empowered under Rule 12
of order IX as follows:
(a) If the plaintiff does not appear, dismiss the suit.
(b) If the defendant does not appear, pass an expert order. (Jagraj Singh versus Birbal Kaur, AIR 2007
SC 2083)
Rule 3: Where neither party appears

When neither the plaintiff nor the defendant appears before the court when the suit is called for
hearing, then the courts are empowered to dismiss the suit under Rule 3, Order IX. The dismissal of
suit under this rule does not put a bar on filing a fresh suit on the same cause of action as per Rule 4
Order IX. The Plaintiff can also apply for setting aside the dismissal if is able to satisfy the court that
there was sufficient cause behind his non-appearance. If the Court is satisfied with the cause of non-
appearance, then it may set aside the order of dismissal and shall fix a day for proceeding with the suit.
Where only plaintiff appears: Rule 6 and 10

According to Rule 6, Order IX, where the plaintiff appears and the defendant does not appear, the
plaintiff has to prove the service of summon on the defendant. If the service of summons is proved,
the court may proceed ex-parte against the defendant and may pass a decree in favour of the plaintiff
if the plaintiff proves his case.
In Sangram Singh versus Election Tribunal AIR 1955 SC 425, it was held that provision however, is
confined to first hearing and does not per se apply to the subsequent hearing.
According to Rule 10 Order IX, where two or more plaintiffs and one or more of them appear and all
others do not appear, the court may permit the suit to proceed as all the plaintiff had appeared, or
make such an order as it thinks fit.
Where only defendant appears: Rules 8 and 9

Where only the defendant appears and the plaintiff does not appear, and the defendant does not
admit the plaintiff’s claim, wholly or partly, the court shall pass an order dismissing the suit [Calcutta
Port Trust versus Shalimar Tar Products Ltd, 1991 Supp (2) SCC 513]. Rule 8 Orders IX enacts that if the
defendant admits the plaintiff’s claim as a whole or a part thereof, the court will pass a decree against
the defendant upon such admission and dismiss the suit for the rest of the claim.
Rule 9: Decree against plaintiff by default bars fresh suit

Rule 9 Contemplates remedy of restoration to the plaintiff whose suit was dismissed under Rule 8
for non – appearance. In case of dismissal for default of appearance under Rule 8, the plaintiff is
precluded from bringing a fresh suit in respect of the same cause of action but he may apply to set
aside the order of dismissal.
An application for restoration must be made within 30 days of the order or knowledge of decree under
Article 122 of the Limitation Act, 1963. The court has no power to enlarge the time period.
A fresh suit on the same cause of action is barred on sound public policy, a well-established juristic
principle that no defendant should be vexed twice for the same cause of action.
The Supreme Court in Collector, Land acquisition versus Mst. Katiji, AIR 1987 SC 1353 observed: the
expression ‘sufficient cause’ is employed by the meaningful manner which sub-serves the ends of
justice, that being the life purpose for existence of the institution of courts.

Rule 10:- Procedure in case of non-attendance of one or more of several plaintiffs
As per Rule 10 of Order IX of the Code, where there are more plaintiffs than one, and one or more of
them appear, and the others do not appear, the court may, at the instance of the plaintiff appearing,
permit the suit to proceed in the same way as if all the plaintiffs had appeared, or make such orders
as it thinks fit.
Ex-parte Decree
An ex-parte decree passed in the absence of the defendant where the plaintiff appears and the
defendant does not appear when the suit is called on for hearing. If it is proved that summons was
duly served, the court may make an order that the suit be heard ex-parte as provided in Order IX Rule
6(1)(a) of the code and thereafter the court shall proceed to take evidence of the plaintiff and pass a
decree in favour of the plaintiff if a prima facie case is not made out by him. An expert decree can be
passed either at the first hearing or at an adjourned hearing
Procedure for setting aside an expert decree

Procedure for setting aside an ex-parte decree has been laid down in Order IX Rule 13 and 14 of the
code. Order IX Rule 13 of the code provides that in any case in which the decree was passed ex-parte
against a defendant, he may apply to the court by which the decree was passed from an order to set it
aside, and if he satisfies the court that the summons was not only served, or that he was prevented by
any sufficient cause from appearing when the suit was called on for hearing, the court shell make an
order setting aside the decree as against him upon terms as to costs payments into court or otherwise
as it think fit, and shall appoint a day for proceeding with the suit.
Period of limitation for filing of an application to set aside an ex-parte Decree –

As per Article 123 of the Limitation Act, 1963 the period of limitation for filing of an application to set
aside an expert of passing of the decree or the date on which the applicant had knowledge of decree
when the summons was not duly served.
Remedies available in cases of Ex-parte Decree-

(1) The Defendant can apply for setting aside of expert decree under Order IX Rule 13 CPC, provided the
application is made, within 30 days from the date of decree.
(2) The defendant may prefer an appeal Section 96(2) of the code which provides that an appeal may
lie from an original decree passed ex-parte
(3) The defendant may apply for review of Judgement to the court which passed the decree under
Section 114 and Rule 1 of Order XLVII of the code
(4) The defendant may file a regular suit where an ex-parte decree is obtained by fraud for setting it
aside on the ground of fraud
(5) where suit has been dismissed for non-precaution before the appearance of the defendant, there
being no specific Provision in the code for such a contingency, the court may restore and set aside the
dismissal order under inherent powers of Section 151 of the code.
Exemption from personal appearance

Section 132: Exemption of certain women from personal appearance –
Section 132 of the code provides that women who, according to customs and manners of the country,
ought not to be compelled to appear in public shall be exempt from personal appearance in court.

Nothing therein contained shall be deemed to exempt such women from arrest in the execution of civil
process in any case in which the arrest of women is not prohibit by this code
Section 133: exception of other persons

Section 133 of the code provides that the following persons shall be entitled to exemption from
personal appearance in court.
(a) the President of India
(b) the Vice-President of India
(c) the judges High Court
(d) the speaker of House of People;
(e) the governor of state and the administrators of union territories,
(f) the minister of state,
(g) the persons to whom section 87B applies i.e. rulers of former Indian States
Order 10: Examination of parties by the Court→

Ascertainment whether allegations in pleadings are admitted or denied
Order X Rule 1 of the code provides that at the first hearing of the suit the court shall ascertain from
each party or his pleader whether he admits or denies such allegations of facts are made in the plant
or written statement of the opposite party, and as are not expressly or by the necessary implication
admitted or made. The court shall record such admissions and denials. Examination It is obligatory
upon the court to examine them only when there is no clear express or implied denial of any statement
of fact in their pleadings.
There is a general duty on the part of the parties at the first hearing in order to ascertain what
allegations are admitted or denied.
Discretion of court to opt for any one mode of alteration dispute resolution -
Rule 1A Order X of the code provides that after recording the admissions and denials the court shall
direct the parties to the suit to opt either mode of settlement outside the court as specified in sub-
section(1) of Section 89. On the option of the parties, the court shall fix the date of appearance before
such form or authority as may be opted by the parties.
Appearance before the conciliatory forum or Authority

Order X Rule 1B of the Code Provides that where a suit is referred under Rule 1A the parties shall appear
before such forum or authority or conciliation of suit.
Appearance before the court consequent to the failure of efforts of conciliation

As per Order X Rule 1C of the code, where suit is referred under 1A and the Presiding officer of
conciliation forum or authority is satisfied that it would not proper in the interest of justice to proceed
with the matter further, then it shall refer the matter again to the court and direct the parties to appear
before the court on the date fixed by it.
Discovery of Inspection
‘Discovery means to compel the opposite party to disclose what he has in his possession or power. It
is thus a compulsory disclosure by a party to an action of facts or documents on which the other side
wishes to rely.

Section 30 of the code provides that subject to such conditions and limitations as may be prescribed,
the court, may at any time either of its motion or an application of any party—
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and
answering of interrogations; the admission of documents and facts; and the discovery, inspection
and production impounding and return of documents or other material objects produced as
evidence,
(b) issue summons to persons whose attendance is required either to give evidence and to produce
documents or such other objects are aforesaid,
(c) Order any fact to be proved by affidavit.
Interrogatories: ‘Interrogatories’ means to ask questions or to make inquiry closely or thoroughly.
[Union of India versus Ibrahim Uddin, (2012) 8 SCC 148.]
In Raj Narain versus India Nehru Gandhi, (1972) 3 SCC 850;it was observed that the object of interrogatories
is twofold:
(a) Firstly, to know the nature of the case of opponent; and
(b) secondly, to support his own case, either
(i) directly, by obtaining admissions, and
(ii) indirectly, by impeaching or destructing the case of his opponent .
(Q) Who may administer interrogatories?

y Interrogatories may be delivered to a party to a suit in the exceptional cases, a plaintiff may administer
interrogatories to the co-plaintiff, or a defendant may administer Interrogatories to the co-defendant.
y An order of interrogatories may be made against the government
y Where a party to a suit is a minor, enatic or of unsound mind, interrogatories may be served on his
next friend or guardian ad litem.
Rule to interrogatories
(a) Interrogatories may be administered in writing with the leave of the court and subject to the
condition and limitations as may be prescribed by it.
(b) Interrogatories may be administered either by the plaintiff to the defendant or by the defendant
to the plaintiff.
(c) No party can deliver more than onset interrogatories to the same party without an order by the
court.
(d) In exceptional cases, a court may allow more than one set of interrogatories to one and the same
party.
(e) Interrogatories cannot be allowed at a premature stage.
(f) Interrogatories may be object inter alia on grounds they are vexatious, scandalous, irrelevant,
unreasonable to the questions raised in the suit, injections to the public interest, etc.
Discovery of Documents
Discovery is of two kinds – (i) discovery by documents, and (ii) discovery by interrogatories
Object
The object of this procedure is twofold:

(i) Firstly, to secure, as far as possible, the disclosure on oath of all material documents in possession
or power of the opposite party under the sanction of penalties attached to a false oath;
(ii) Secondly, to put an end to what might otherwise be a protected enquiry as to the material
document actually in possession or power of the opposite party.
The following conditions must be satisfied for discovery of documents may be ordered by a court:
(i) it is necessary for fair disposal of suit or
(ii) for saving costs.
In Central Bank of India versus Shivam Udyog, (1995) 2SCC 74 it was held that a party to suit may apply
to the court for an order of discovery. This can be done either by failing an affidavit or otherwise, if the
court makes an order of discovery, the opposite party must in an affidavit set-forth all the documents
which are or have been in custody, possession or power.
Rules as to discovery
(1) It is at the discretion of the court to grant or refuse discovery of documents.
(2) Discovery cannot be ordered by the court if it is of the opinion that is not necessary either for the
fair disposal of the suit or for saving costs
(3) Failure to comply with the order of discovery, inspection or production of document may result in
adverse inference against the defaulting party
(4) The court may exercise this power at any stage either of its own nation or an application of any
party and subject to such conditions and limitations as may be prescribed.
(5) The court may either refuse or adjourn such application if satisfied that such discovery is not
necessary or not necessary at that stage of the suit or make such order as it thinks fit
Inspection of Documents
Rules 15 to 19, Order XI deal with inspection of documents. For the purpose of inspection, documents
may be divided into two classes-
(i) documents referred to in the pleading, or affidavits of parties, and
(ii) other documents in the possession or power of the party but not referred to in the pleadings of
parties.
The primary object of Rules 15 to 19 of Order XI is placing the documents that had been fully set out in
his pleading or in the affidavit.
Premature discovery: Rule 20

y The court is empowered to postpone a premature discovery or inspection.
y A discovery is premature when the right to discovery depends upon the determination of any issue
or question in dispute, or for any other reason it is desirable that any issue or question in dispute in
a suit should be determined before deciding upon the right to discovery.
Non-Compliance with order of discovery or inspection

Where any party fails to comply with any order to answer interrogatories or for discovery or production
of document if such party happens to be plaintiff his suit may be dismissed for want of prosecution,
and if he happens to be a defendant, his defence will be struck- off and will be placed in the same
position as if he had not defended.

Incidental Proceedings
Commissions - Order XXVI
Section 75 confess power upon every court to issue commission and enumerates the purposes for
which a court may issue a commission
In Bandhua Mukti Morcha versus Union of India, (1984) 3 SCC 161, It was held that the power of court to
issue commission is discretionary and can be exercised by the court to issue summon is discretionary
and can be exercised by the court for doing full and complete justice between the trust on an application
by a party to the suit or suo moto (of its own nation)
Purposes: The court may issue a commission—
(a) to examine any person
(b) to make a local investigation,
(c) to make a local investigation;
(d) to examine or adjust account,
(e) to hold a scientific, technical or expert investigation.
(f) to perform any ministerial act.
(g) to conduct sale of property which is subject to speedy and natural decay and which is in the
custody of the court pending the determination of the suit.
To examine witness
The court may issue a commission for examination on interrogatories or otherwise of any person in the
following circumstances
(i) If the person to be examined as a witness resides with the local limits of the court’s jurisdiction,
and.
(ii) is exempted under the code from attending court,
(iii) is from sickness or infirmity unable to attend court, or
(iv) in the interest of justice, or for any other reason, his examination on commission will be proper.
(v) if he resides beyond the local limits of the jurisdiction of the court,
(vi) if he is about to leave the jurisdiction of the court,
(vii) if he is a government servant and cannot in the opinion of court, attend without detriment to the
public service, or
(viii) if he is residing out of India and the court is satisfied that his evidence is necessary.
The evidence local taken on commission shall from part of the record.
To make local investigations

The court may, in any suit, issue a commission to such persons as it thinks fit directing him to make
local investigation and to report thereon for the purpose of clarifying
(a) Elucidating or clarifying any matter in dispute or
(b) ascertaining the market value of any property or the amount of any mesne property or the amount
of any mesne profits or damages or annual net profits.

Object of local commission
(1) To collect evidence which from its very peculiar nature can be had only on the spot.
(2) Such evidence enables the court to properly understand and access the evidence on record and
clarity any point which is left doubtful.
(3) It also helps the court in deciding the question in controversy pending before it e.g., whether the
suit a premise is really occupied by tenants or strangers.
Evidentiary Value
The report of commissioner would furnish prima facie evidence of facts and data collected by the
commissioner.
y It will constitute an important piece of evidence and cannot be reject except on sufficient grounds
y It would, however, be open to the court to consider what weight to be attached to the data collected
by the commissioner and reflected in the report and to what extent act upon them.
Temporary Injunctions
An injunction is a judicial process whereby a party is required to do, or to refrain from doing, any
particular act. It is a remedy in the form of an order of the court addressed to a particular person that
either prohibits him from doing or continuing to do a particular act or order him to carry out a certain
act. [Food Corporations of India versus Sukhdeo Prasad, (2009) 5 SCC 655]
General Principles of Injunctions

Injunctions are a form of equitable relief and leave to be adjusted in aid of equality and justice to the
facts of each particular case. Injunction is a preventive relief and a tentative one. The general principles
governing of temporary injections are:
(a) whether the petitioner has made out a prima facie case;
(b) whether the balance of convenience is in his favour;
(c) whether the plaintiff will suffer irreparable injury in the case the temporary injection is not granted.
Grounds
Temporary Injunctions can be granted in the following cases:-
(a) where any property in dispute in a suit is in danger of being wasted, damaged oriented by any party
to the suit, or wrongfully sold in execution of decrees
(b) where a defendant threatens, or intends to remove or dispose of his property with a view to
defrauding his creditors.
(c) where a defendant is about to commit a breach of contract, or other injury of any kind,
(d) where a defendant threatens to dispose of the plaintiff in relation to any property in dispute in the
suit.
(e) where a court is of the opinion that the interest of justice so requires
Triple Test
(1) Prime facie case – The existence of a prime facie i.e. the existence of a prime facie right and
infringement of such right is the condition precedent for grant of temporary injection. Only when a ‘
prime facie case’ is established that the court will consider other factors. In deciding a prime facie

case, the court is to be guided by the plaintiff case as revealed in the plaints, affidavits or other
materials produced before it.
It is no part of the court function at that stage to try resolve a conflict of evidence nor to decide
complicated questions of fact and law which call for detailed arguments and nature considerations
Explaining the ambit and scope of the connotation “prime facie” case in Martin Burn Ltd. versus RN
Banerjee, AIR 1958 SC 79, the Supreme Court observed that: “A prima facie case does not mean a
proved the guilt but a case which can be said to established if the evidence which is led in the support
of the same were believed. While determining whether a prime facie case had been made out the
relevant consideration is whether on the evidence led it was possible to arrive at the conclusion in
question and not whether that was the only conclusion which could be arrived at on that evidence. It
may be that the tribunal considering this question may itself have, however, not to substitute its own
judgement for the judgement in question. It has only got to consider whether the view taken is possible
view on the evidence on the record.”
(2) Irreparable Injury – The second principle which court has to keep in mind while deciding on the
issue of equitable relief of temporary injection is that non-interference by the court would result in
‘Irreparable Injury’ to the party seeking relief and that there is no other remedy available to the party
except one to grant injection and he needs protection from the consequence of apprehended injury or
dispossession.
The applicant must satisfy the court that if his application for a grant of temporary injection is not
allowed, he will suffer an irreparable loss or injury which cannot be compensated in terms of money,
and there will be no other remedy available with the plaintiff to protect his legal rights.
(3) Balance of convenience in favour of applicant – The expression “balance of convenience” in favour
of the application implied that the court must be satisfied that the comparative mischief/hardship
which is likely to cause to the applicant by denial of injection will be greater than that which is likely
to be caused to the opposite party by granting it to the applicant.
It is to be noted that for granting of temporary injections, the balance of temporary injection, the
balance of convenience must be in favour of the applicant.
Order XXXIX Rule 2(A):- consequence of disobedience or breach of injections

In cases of disobedience or breach of injunction order issued temporarily during the pendency of the
suit under Rules 1 and 2, it is expedient to invoke and exercise contempt jurisdiction. In such cases,
action is contemplated by the court which issued the injunction order under Section 94(c) as well as
Rule 2A of Order XXXIX.
Section 94(c) of the code provides that in order to Prevent the ends of justice from being defeated, the
court may, commit the person defeated, the court may commit the person guilty of disobedience of an
order of interim injunction to civil prison and direct his property be attached and sold.
Attachment of Detention: Order XXXIX Rule 2A(1): The penalty provided by this rule is:
(a) attachment of property of the person guilty of such breach or disobedience,
(b) detention in the civil prison for a term not exceeding three months.
It is open to the court to attach the property of the disobeying party and at the same time the court
can order him to be detained in prison also if the court deems it necessary.
(b) Property may be sold: Rule 2A(2):
It provides the maximum period for which the attachment of property may continue. The maximum
period is one year at the end of which the property may be sold and out of the Sale precedes the court

may award Such compensation to the injured party as it deems fit and the balance, if any, it is to be
entitled thereto.
Thus, the affected party may be compensated from the proceeds of such Sale. It must be noted
attachment will continue only till the breach. Continues or the disobedience persists subject to a limit
of one year period.
Introductory Orders
The term interlocutory applies to a judgement or decree, which determines the intermediate issue
during procedure directed to a final decree.
Power to order interim sale: Rule 6, Order 39

The following conditions must be satisfied for the application of this rule –
(a) the property must be moveable property
(b) it must be the subject matter of the suit, or must have been attached before judgement in such
suit,
(c) an application for sale must have been made by a party to a suit,
(d) (i) The property must be “subject to seedy and natural decay”, i.e., perishable or
(ii) for any just and sufficient cause, the court finds it desirable to sell the property at once.
Detention, inspection, preservation, etc of subject-matter: Order 39 Rule 7

Under this rule, the court can order for the detention, preservation or inspection of any property which
is the subject matter of suit.
Receiver [Order 40, Section 94(d)]

Receiver is not the agent of the party for and on whose behalf, he is appointed by the court.
Objective of appointment of Receiver

y To protect, preserve and manage the property during the pendency of the litigation.
y A receiver is an officer and is an extended arm and hand of the court, a part of court machinery by
which the rights of the parties are protected.
Appointed of Receiver
Order 40, Rule (1) Provides that where
Power of Receiver—
In Balkrishan Gupta versus Swadeshi Polytex Ltd, (1985) 2 SCC 167, it was held the receiver is an officer
or representative of the count and he functions under its directions. The court may confer you receiver
any of the following powers:
(a) to institute and defend suits,
(b) to execute documents,
(c) to realise, manage, protect, preserve, and improve the property,
(d) to collect apply and dispose of the rents and profits
(e) such of these powers as the court may deem thinks fit.

Duties Receiver
(a) A receiver has to furnish such security, as the court thinks fit, duly account for what he shall
receive in respect of the property.
(b) He has to submit accounts for such a period and in such forms as the court directs.
(c) He has to pay the amount due from him as per the directions of the court.
(d) Being representative of the court, he is bound to discharge his duties personally and cannot
delegate or assign any of the duties or right entrusted to him by the court
Liability of Receive
(i) If the receiver fails to submit accounts or fails to pay the amount due, or occasion’s loss to the
property by his wistful default or negligence, the court may direct his property to be attached and
sold and make good any amount found to be due from him.
(ii) A receiver is bound to exercise the same diligence in keeping down expense and in caring for the
estate in his possession as a prudent man would observe in connection with his own property
under similar circumstances
Affidavits
According to Clause 3(3) of the GENERAL CLAUSES ACT, 1897, affidavit inclusive’ affirmation and
declaration in the case of a person by law allowed to declare or affirm instead of swearing.’ It is to
noted that affidavit is written or printed statement made voluntarily, and it appears to the court to be
just and contingent, the court may by and order—
(a) appoint receiver of any property, Whether before or after decree,
(b) remove any person from the possession or custody or management of the receiver and
(c) commit the same to the possession, custody or and management of the receiver, and
(d) confer upon the receiver all such powers, as to bringing and defending suits and for realising,
management, protection presentation and improvement of the property, the collection of the rents
and profits thereof of, the application and disposal of Such rents and the disposal of such rents
and profits, the execution of documents as the owner himself has, or such of those powers as the
court thinks fit.
The court can appoint a Receiver on the basis of the following principles-
(i) It rests in the discretion of the court for the purpose of protecting the rights of all parties and the
subject-matter.
(ii) Court should not appoint a Receiver except upon proof by the plaintiff that prima facie he has an
excellent chance of success in the Suit,
(iii) not only the plaintiff must show a case of adverse and conflicting claims to property, but he must
show Some emergency or danger or generally, loss demanding immediate action,
(iv) Generally, an order will not be made if it has the effect of depriving a defendant of a de-facto
possession, the possession however may be different if the property is shown to be in media, i.e. to
say in the enjoyment of no one, and it will be in commission interests of all the parties to appoint
a receiver
(v) The court should look at the conduct of the party who makes an application for a receiver. He must
come clean hands and. should not have disentitled himself to this equitable relief by laches, delay,
or acquiescence.
(SB Industries versus United Bank of India, AIR 1978 All 189).

Verified by oath, for the purpose of being used in court of justice as evidence of facts.
Essentials
(i) It must be a declaration made by a person.
(ii) It must relate to facts.
(iii) It must be writing.
(iv) It must be in the first person, and
(v) It must have been sworn or affirmed before a magistrate or any other authorized officer.
Evidence on affidavit
(a) A fact has to be proven by oral evidence since affidavits are not included in the definition of
evidence under section 3 of the evidence Act. They can be used as evidence only if, for sufficient
reason, the court invokes the provisions of Order XIX of the code.
[Sudha Devi Versus MP Narayannon, (1988) 3 SCC 366]
(b) Affidavits should be confined to such facts as the deponent is able to prove to his personal
knowledge, except on interlocutory applications on which statement of his behalf may be admitted.
(c) Unless affidavits are property verified and are in conformity with the rules, they will be rejected by
the court.
[AKK Nambiar versus Union of India, (1969) 3 SCC 864].
Withdrawal and Compromise of suits – (Order XXIII)

Withdrawal of suit
Absolute withdrawal (Withdrawal without the leave of the court) Qualified withdrawal (Withdrawal
with the leave of the court)
Absolute withdrawal: Rule 1(1), 4

(a) The underlying principle with respect to Order 23 Rule 1 is that once a plaintiff invokes the
jurisdiction of the court and institutes a suit, he cannot be permitted to institute a fresh suit in
respect of the same subject matter again if he abandons such suit without the permissions of the
court to file fresh suit.
(b) The provision is based upon the maximum “invito benificium non datur”, which means the law
confers, upon a man no rights or benefits which he does not desire
(c) This right is absolute and unqualified and the court cannot refuse permission to withdraw a suit
and compel the plaintiff to process it, unless any vested right comes into existence before such
prayer is made. (R Ramamurthi versus Rajeswara, AIR 1973 SC 643).
(b) withdrawal with leave of the court: Qualified withdrawal: Order XXIII Rule 3.
Where the court is satisfied with a suit must fail by reason of some formal defect, or there are sufficient
grounds for allowing the plaintiff to institute a fresh suit for the subject-matter of suit or part of claim,
it may grant permission to withdraw such suit or such part of the claim with liberty to file a fresh suit
in respect of the subject-matter of such suit or such part of claim on such terms as It thinks fit.
(i) Formal Defect: Though the expression ‘formal defect has not been defined in the code, it connotes
some defect of form or procedure not affecting the merits the case such as want of statutory notice
under section so of the lode, misjoinder of parties or of cause of action, defect in prayer clause,

The Supreme Court in V Rajendran Annasamy versus Pandian, (2017) 5 SCC 63, after considering various
judicial opinions of Highs courts, has held that “formal defect’ is a defect of form pores cubed by the
rules of procedure. The Supreme Court further observed that formal defect must be given a liberal
meaning which connotes affecting various kinds of defects not affecting the merits of plea raised by
either of the parties.
Sufficient Ground: The Madras High Court in C Jagadeesan versus T Baskaran, 2019 SCC Online Mad
13123, by relying on its queen decision in Durai Kannu versus Malaymmal, 2003 SCC Online Mad 593,
has held that other sufficient grounds” must be considered ‘ejusdern generis’ with formal defect in
Clause (a) of sub-rule (3) since such sufficient ground means a defect that does not result from the
plaintiff’s own to default. Plaintiff’s failure to prove his case is not “sufficient ground” within ambit of
Clause (b) of sub-rule (3).
Discretionary Power of court: Sub-rule (3) of Order 23 Rule 1 is an exception to the principle of non-
suit. An application under sub-rule (3) cannot be treated at par with absolute liberty given to the
plaintiff under sub-rule (1).
(2) Under sub-rule (3), a prayer is sought for the trial court’s leave to withdraw the suit after satisfying
it of the existence of a formal defect or other sufficient ground, as the case may be.
After hearing the plaintiff, power the allow withdrawal of suit with liberty to institute a fresh one on
the same cause of action is a discretionary power of the court [V Rajendran versus Annasamy Pandian,
(2017) 5 SCC 63]
Effect of absence of a specific prayer for “liberty to institute a fresh suit in withdrawal
application under Order XXIII Rule 1
In Jonnala Sura Reddy versus Tityygura Srinivasa Redddy, 2003 SCC online AP 631, the Andhra Pradesh
High Court has held that if the previously instituted suit is withdrawn vide a withdrawal memo wherein
the plaintiff fails to make a specific prayer clearly seeking the trial court’s leave to institute a fresh
suit on the same cause of action, then such subsequent suit is barred as is provided by sub-rule (4).
Q. At what stage of the trial can the plaintiff move an application under Sub-rule (3)?
The question came before the Kerala High Court in Santosh versus Shire Ville Owners Association, 2015
SCC online Ker 9667: An application under Order XXIII Rule 1(3) was dismissed by the trial Court on the
grounds that it failed to disclose any formal defect’ and it was moved at the stage of final hearing of
the matter and therefore was moved at the belated stage. When the matter was brought before it, the
Kerala High Court held that a plaintiff can move the said withdrawal application at any stage of the civil
suit thereby setting aside the civil court’s order.
However in R Rathinavel Chettiar versus Sivaraman, (1999) 4 SCC 89, it was held that the plaintiff
cannot withdraw a suit from which an. appeal is preferred since it would destroy the decree passed by
the trial court as well as the rights vesting in the defendant unless very. Strong reasons for withdrawal
are shown that would not affect or disturb any party’s rights.
Q. Does sub-Rule (3) apply to writ-petition and special leave petitions?
In Sarguje Transport Service versus STAT, (1987) SCC 5, the Supreme Court considered the consequence
and effect of withdrawal of a writ petition filed under Article 226 and 227 of the Constitution of
India without the leave of High Court to file a fresh one on the same cause of action. The Apex court
observed that the Code does not directly apply to wait proceedings although procedure prescribed by
it, as far as it can be made applicable, is followed by the High Courts while dealing with writ. Petitions
The Supreme Court extended the principle underlying Order XXII Rule 1(3) to writ petitions under Article

226 & 227 on the ground of public policy to advance the cause of justice. It observed that doing so
would also discourage the petitioners from indulging in bench hunting tactics. The court further held
that when the petitioners withdraw his writ petitions without the leave of High Court to file a fresh
petition on the Same cause of action, then he should be deemed to abandon this remedy and shall be
barred from filing a fresh writ petition. Such withdrawal will not bar the plaintiff from pursuing other
remedies since it does not operate as res judicata. However, the
The Supreme Court clarified that this Judgement will not be applicable to writ petitions involving
enforcement of fundamental rights or personal liberty Since such petitions stand on a different footing.
It is to be noted that the reasoning Sarguja Transport Service versus STAT, (1987) 11 SCC 5, was applied
by the Supreme Court in Upadhyay & Co versus State of UP, (1999) 1 SCC 81, to arrive at the conclusion
that Order XXIII Rule 1(3) would also apply to Special leave Petitions filed under Article 136 of the
Constitution of India.
Compromise of Suit
Order XXIII Rule 3 of the code lays down that
(i) where the count is satisfied that a suit has been adjusted wholly or in part by any lawful agreement
in writing and Signed by the parties, or
(ii) Where the defendant satisfies the plaintiff
In respect of the whole of any part of the subject-matter of the suit, the court shall record such
agreement, Compromise or satisfaction and pass a compromise decree accordingly. [Gurpreet Singh
versus Chatur Bhuj, (1988) 1 SCC 270].
Compromise: Meaning
The term ‘compromise’ means settlement of disputes by mutual consent. In such a process, the
adversial claims between the parties come to rest. By means the parties put compromise, arrived at,
and ended the litigation battle.
Conditions: following conditions must be satisfied before a consent decree is passed:
(i) There must be a compromise, agreement or compromise.
(ii) It must be in writing and signed by the parties,
(iii) It must be lawful,
(iv) It must be recorded by the court, and
(v) A consent decree must have been passed.
Q. Who may record a compromise?
A compromise adjustment may be recorded by the court where proceedings are pending.
(a) In case of suit, it can be recorded by the trial court.
(b) In case of appeal or revision, such action can be taken by appellate or revisional court
(c) where compromise has been arrived at in execution proceedings, it is the executing court which
can record such compromise.
Bar to suit: Rule 3A

No suit can be filed to set aside a compromise decree on the ground that it is not lawful. [Banwari Lal
versus Chandro Devi, (1993) SCC 581].

Death, Marriage and Insolvency of Parties
Death of Parties
Order XXII Rule 1 the Code of the lays down that the death of plaintiff or defendant, shall not cause the
suit to abate if the right to Sue survives.
In order XXII of the code, the expressions ‘Right to sue’ and ‘cause of action’ are intended to be
Synonyms. “Right to sue’ is based upon facts which go to make what is called ‘the cause of action.
Here, the words ‘right to sue’ means the right to seek relief.
The application of maxim actio personalis moritur cum persona? (Personal right of action dies with the
person) is an exception to the normal rule of no abatement by party’s death if the right to sue survives?
For instance (i) Right to sue will survive in a Suit for rendition accounts.
(ii) in a suit by a landlord for the ejection of a tenant on the death of the landlord, etc.
Q. When does the right to sue survive in the Case of death of a party to the suit?
The relevant Provisions which deal with the cases in which the weight sue survives even with the death
of either to party are Section 37 of the Indian Contract Act, 1872; and Section 306 of t Act the Indian
Succession.
Section 37 of the Indian Contract Act, 1872 provides that the promises bind the legal representatives of
the promisor in case of the death of such promisor before the performance unless a contrary intention
appears from the contract. Section 306 of the Indian Succession Act, 1925, in substance provides that
the right to sue does not survive in suits for deformation, assault or other personal injuries, not causing
the death of party and also in cases where after the death of the party the relief sought could not be
enjoyed or granting of it would be nugatory.
Thus, according to these provisions, the right to sue survives in such quits such as quits for damages,
for breach of contract, quit for recovery for property, suits for recovery of debts, etc.
(a) Death of Plaintiff

Where the sole plaintiff dies, the suit will not abate, if the right to sue survives. It can be continued by
the heirs and legal representatives of the deceased plaintiff. If the right to sue does not survive, the
suit will not come to an end.
Where one of the plaintiff’s dies and the right to sue does not survive to the Surviving plaintiff or
plaintiffs or where the sole plaintiff dies and right to sue survives, the court on an application by the
legal representative of the deceased
Plaintiff will make him a party and proceed with the suit. (Order XXIII Rule 3).
Where no such application is made within the period of limitation (ninety days), the Suit shall be able
so far as the deceased Plaintiff is concerned. On an application made by the defendant, the court may
award costs, which might have been incurred by defending the suit from the estate of the deceased
plaintiff.
In NP Thirugnanam versus Dr. R Jagan Mohan, (1995) 5 SCC 115, it was held that where the plaintiff dies
after hearing and pronouncement of judgement, the suit shall not be able.
(b) Death of Defendant

(i) Where the sole defendant dies, the suit shall not be able if the right to sue survives. It can be
continued against the heirs and legal representatives of the deceased defendant.

(ii) where one of the several defendants dies the right to sue survives the against the surviving
defendant or defendants, or where the sole surviving defendant dies and the right to sue survives,
the court, on an application by the legal Representatives of the deceased defendant, will make him
a party and proceed with the suit.
(iii) Where no such application is made within the period of limitation (ninety days), the suit shall abate
as against the deceased defendant. (Order XXI, Rule 4).
Effect of Abatement: Rule 9, Order XXII

y where the suit abates or is dismissed due to failure of the plaintiff to bring the legal representative
or representative of the deceased party, no fresh suit will lie on the same cause of action. The only
remedy available is to only get the plaintiff or the person claiming to be the legal. Representative of
the deceased party to get the abatement set aside.
Marriage of Party: Rule 7, Order (XXI)
y Order XXII Rule 7(1) provides that the marriage of female plaintiff and defendant shall not cause the
suit to fail where the decree is passed against a female defendant it may be executed against her
alone.
y Whereas, Order XXII Rule 7(2) lays down that a decree in favour of or against a wife, where the
husband is legally entitled to the subject-matter of the decree or is liable for the debt g wife may,
with the permission of the court, be executed by or against him.
Insolvency of Party: Rule B

(a) Insolvency of plaintiff
In Kala Chand Banerjee versus Jagannath Marwari, AIR 1927 PC 108, it was held that the insolvency of
the plaintiff shall not cause the suit to fail and can be continued by his Assignee or receiver for the
benefit of the creditors. But if the Assignee or receiver declines to continue the suit, or to give security
for costs as ordered by the court may, on the application of the defendant, dismiss the suit on the
ground the of plaintiff’s insolvency
Insolvency of Defendant
Rule 8 does not apply where the defendant becomes insolvent. In such cases, the court may stay the
suit or proceedings pending against the defendant who has been adjudged insolvent. Intimation to
the party interested to appear and object to it. A process to stop the institution of a person and move
frequently to stay the probate of a will, the issue of letter administration, a licence of marriage, etc.
The person filing or entering a caveat is called the caveator.
Objective of Caveat
(a) To avoid multiplicity of proceedings.
(b) To Safeguard the interest of a person against an order that may be passed on an application filed
by a party in a suit or proceeding instituting or about to be instituted.
It is always the discretion of court to award the cost
COST
It is always the discretion of court to award the cost

COST
General Cost Miscellaneous Cost Compensatory Cost Cost for Causing Delay
General Cost: Section 35

y Cost is at the discretion of the court The Said discretion must be exercised on Sound legal principles
and not by chance or however.
y Costs should follow the event and the successful are entitled to costs unless there are good grounds
for depriving them of that ought.
y Such costs should be real and compensatory and not merely symbolic.
Miscellaneous Cost: Order 20A

Order 20 A makes Specific provisions with regard to the power of the court to award Costs in respect
of certain expenses incurred in giving notices, producing witnesses, etc.
Compensatory cost: Section 35A

Costs under Section 35A are compensatory and not penal and are an exception to the general principle
of payment of costs. Order of compensatory cost are made under
Cost, Interest, Caveat & Restitution

y Restitution - (Section 144) -
“Restitution” means restoration of anything justly taken from another. It provides for putting a party
in possession of land, property or tenement, who had been unlawfully dispossessed, deprived or
disseized of it
In Manijibhai Mohanbhai Barot versus Patel Manibhai Gokalbhai, AIR 1965 SC 1977, the Supreme
Court held that restitution means restoring to the benefit which the other party received under a
decree subsequently held to be wrong.
y The doctrine of restitution is based Curiae the upon well-known maxim ‘actus curiae neminem
grabit’, i.e., the act of court shall harm no one
y The doctrine of restitution is based on equitable principles. The court has inherent power to order
restitution whenever the Justice demands it.
In Jang Singh versus Berij Lal, AIR 1966 SC 1631, it was held that before restitution can be ordered
under this section, the following three conditions must be satisfied-
(a) There must be an erroneous Judgement,
(b) The benefit of that erroneous judgement has been received by one party,
(c) The erroneous judgement has been reversed, modified or get aside.
It was further held that if these conditions are satisfied, the court must grant restitution. It is not
discretionary but obligatory
Caveat: Section 148A

Section 148A the code provides for lodging of a Caveat. A caveat is an intimation made to the proper
officer of a court of justice to prevent the taking of any step without the following conditions-

(a) The claim must be false.
(b) It must be false to the knowledge of the party raising it.
(c) Such claim must have been disallowed or abandoned in whole or in part
(d) Objection that suit was false must have been taken at the earliest opportunity.
Before awarding compensatory cost, court has to satisfy itself that-
(a) the claim was false to the knowledge of the plaintiff.
(b) that interests of justice require it, and
(c) the objection was put forward by the defendant at the earliest opportunity
Cost for causing delay: Section 35-B

y Section 35-B has been inserted by way of the Amendment Act of 1976.
y It has been added to put a check upon delaying upon the tactics of litigating parties.”
y The Provision of this section are mandatory in nature and, therefore, the court should allow prosecution
of suit or defence, as the case maybe, in the event of a party failing to pay cost as directed by cost
If, however, a party is unable to pay cost due to circumstances beyond his control, such as strike of
advocate, etc. the court can extend the time
Judgement and decree

Section 2(9) of the code, ‘judgement’ means the statement given by the judge on the grounds of a
decree or order.
Every judgement other than that of a court of small causes should contains:
(i) a concise statement of the case
(ii) the points or ground for determination
(iii) the decision thereon, and
(iv) the reasons for such a decision.
In Shah Babulal Khimiji versus Jayaben D Kania, AIR 1968 AP 138, it was held that “every interlocutory
order is not a judgement.”
Section 33 of the code provides that the court after the case has been heard shall pronounce judgement,
and on such judgement a decree shall follow.
In Balraj Taneja versus Sunil Madan, AIR 1999 SC 3381, it was settled that judgement must be a self-
contained document from which it should appear as to what were the facts of the case and what was
the controversy which was tried to be settled by the court in what manner. The proves of reasoning by
which the court came to a particular conclusion and decreed or dismissed the suit should clearly be
reflected in the judgement.
Alteration in Judgement: Rule 3

In Kewal Chand versus SK Sen, (2001) 6 SCC 512, it was held that a judgement once signed cannot
afterwards be amended or altered except
(i) correct clerical or arithmetical mistakes, or errors due to accidental slips or omissions, (Section
152)
(ii) on review (Section 114)

Decree
Section 2(2) of the code states that 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 regards to
all or any of the matters in the controversy in the suit and may be either preliminary or final
It shall be deemed to include the of a plaint and the determination 2 of any question within Section
144, but shall not include (a) any adjudication from which appeal lies as an appeal from an order (b)
any order of dismissal for default
Essentials of Decree
(a) There must be formal expression of adjudication.
Adjudication means the granting of refusing any relief claimed in the suit one appeal or other
proceedings which may conform to the decision of suit and embodied in a formal declaration of
the court.
(b) The adjudication must have been given in a suit before the court. Every suit is commenced by filing
a plaint in a civil court and where there is no civil suit, there is no decree.
(c) The adjudication must have determined the rights of parties or any of with regard to all the matters
in controversy in the Suit. It is to be noted that there should be conclusive decisions and not
merely interlocutory orders.
(d) Such adjudication must be conclusive i.e., it must be the courts complete & final as regards the
court which passed it.
Decree
Preliminary Decree Final Decree Partly-preliminary

and
Partly-Final decree.
(A) Preliminary Decree

y Preliminary decree is a decree, but it is not capable of execution, normally, a final decree is passed.
y A decree is preliminary when further proceedings have to be taken before the suit can be completely
disposed of.
y The preliminary decree is not dependent on the final one but the latter is dependent and Subordinate
to the formal and does not extinguish it but gives effect to it.
Illustrations
(a) Suit for dissolution of partnership
(b) Suits for pre-emption.
(c) Suits for accounts between principal and agent
(d) Suit for possession and for rent or mesne profits
Final Decree
A decree is final when such adjudication completely disposes of the suit. A suit is completely disposed-
of when there is nothing further remaining to be decided on. Thus, when a decree is passed for a sum

representing part mesne-profit, and for subsequent mesne-profit at a particular rate without directing.
An inquiry, the decree completely disposes of the suit and is, therefore, a final decree.
Final decree be said to become final in two ways

(a) When the lime for appeal has expired without any appeal being filed against the preliminary decree
or a matter has been decided by the highest court.
(b) When in regards to the court passing the decree, the same stand is completely disposed of. The
words ‘final decree’ are used when the suit is completely disposed of.
Decree - partly preliminary & partly-final

A device may be partly preliminary and partly final. In a suit for possession of land and mesne profits,
the court orders possession of the land in suit in favour of the plaintiff, and directs an inquiry into
mesne profits. The first part of decree is final decree and the second part Preliminary is a decree
Relationship between preliminary and final decrees

Preliminary Decrees Final Decrees
A decree is preliminary when further proceedings It is final decree when such adjudication
have to be taken before the suit can be completely disposed of the suit
completely disposed of
A preliminary decree ascertains what is to be It is the final decree which is executable.
done.
The Preliminary decree is not dependent on the The final decree is really dependent on and
final decree subordinate to the preliminary decree.
Trial
(A) Summons to witnesses Order 16: Order XVI Rule 1 requires the parties to the suit to submit in
a court a list of witnesses whom they propose to call either to give documents and evidence or to
produce to obtain summonses for their attendance in court.
In Laliths J Rai versus Aithappa Rai, (1995) 4 SCC 244, it was held that the object underlying this
provision is to give notice a party about the witnesses which his adversary is to examine in the case
so that he could be in a position to know the nature evidence he has to meet. The legislature has
not put total prohibition on a party to produce witnesses for proof of his case. But when he seeks
the assistance of the court, he has to give reasons why he has not filed an application within the
prescribed time-limit
It was further held that the court has also power to summon any person as a witness if it thinks that
the ends of justice require the case before it needs that Kind of evidence.
Contents of Summons- Every summon issued to a witness should contain the following particulars-
(a) the time and place at which he is required to attend.
(b) the purpose of his attendance,
(c) the document which he is called upon produce should be described with reasonable accuracy
Failure to Comply of the with Summons

Section 32 of the code provides the court has power to enforce the attendance of any person to whom
a summons has been issued and for that purpose, may

(a) issue a warrant for his arrest,
(b) attach and sell his property
(c) impose a fine upon him not exceeding five thousand rupees, and
(d) Order him to furnish security for his appearance and in default commit him to civil prison.
Order X Rule 1 of the code enumerates consequences for non-appearance by a party in spite of service
of summons. It states that that where a person to whom a summons has been issued, either to attend
to give evidence or to produce a document, fails to comply with such summons without lawful excuse
or intentionally avoids Services of summons, the court may issue a proclamation requiring him to
attend to give evidence or to produce a document at a time and place mentioned therein and a copy
of such proclamation should be affixed on the outer door or other conspicuous part of the house in
which he ordinarily resides.
Attendance of witness in Prison: Order 16A

Order XVIA, added by the Amendment Act of 1976, provides for the attendance of Prisoners to the
evidence if the court is of the opinion that their evidence is material, they are in the suit except where
they are physically unfit to do so.
Adjournment
In Kishan Lal Gupte versus Dujodwale Industries, AIR 1977 Del 49, it was held that after the courts start
hearing of a suit, it will be continued till the final disposal of the suit. As a general rule, when hearing If
evidence once begun, such hearing Shall be continued day to day and adjournment should be granted
only for avoidable reasons.
In Salem Advocate Bar Association versus Union of India, (2003) 1 SCC 49, it was held that a party to
the suit, however, may ask for an adjournment of the matter Normally, grant of refusal adjournment is
at the discretion of the court. The power to grant adjournment is not subject to any definite rules, but
it should be exercised judicially and reasonably and after considering Jacks and circumstances of each
case. It was further held that the provision limiting adjournments cannot be held to be unconstitutional
or ultra-vires.
Power of Court
y In Haji Abdul Hafiz versus Nasir Khan, AIR 1984 All 16, it was held that in allowing or refusing
adjournment, the court has to ascertain whether the ground on which adjournment is sought is
factually correct and then to decide whether that is to ground is sufficient to grant adjournment.
y No adjournment shall be granted more than three times to a party during hearing of the suit.
Hearing of Salt: Order XVIII

After the Settlement issues, recording of real evidence begins in a case. According to Rule 1 of Order
XVIII of the code, the Plaintiff has the Right to begin unless the defendant admits the facts alleged by
the plaintiff and contends that either in point of law or on some additional facts alleged by defendant,
the plaintiff is not entitled to any part of the relief which he seeks, in which case the defendant has
the right to begin.
It is to be noted that might to begin is to be determined by rules evidence. As a general rule, the party
on whom the burden of proof vests should begin. It is the well-settled law that a person who sets the
law in motion and Seeks relief before the court, must necessarily be in a position to prove his case and
gets the moulded relief by Law.

Trial in Open Court: Section 153B
In Naresh Shridhar versus State of Maharashtra, AIR 1967 SC 1, it was held that the evidence of
witnesses Shall be taken orally in open court in the presence and under the personal direction and
superintendence of the judge
y It is well-settled that, in general, all cases brought before the courts, whether civil, criminal or
others, must be heard in open court.
Trial in Camera
In AK Roy versus Union of India, (1982) 1 SCC 271, it was held that the principle that all cases must be
tried in public is really ultimately based on the view that it is. Such public trials and of the cases that
assist the fair and impartial administration of justice. The administration of justice is thus the primary
object of the work done in courts, and so, if there is a conflict between the claims of administration of
justice itself and those of public trial, it must yield to the administration of justice.
Interpleader Suit Summary Suit

y Interpleader Suit (Section 88, Order 35)
An interpleader suit is one in which the real dispute is between the defendants only and the defendants
interplede, that is to say plead against each. Other instead of pleading against the plaintiff as in an
ordinary suit.
In every interpleader suit, there must be some debt or sum of money or other property in dispute
between the defendants only, and the plaintiffs must be a person who claims no interest there in other
than for charges or costs and who is it ready to pay or deliver it to such of the defendants as may be
declared by the court to be entitled to it.
Conditions: Before an interpleader suit can be instituted, the following Conditions must be satisfied: -
(a) There must be some debt, sum of money or the other property movable or immovable in dispute,
(b) Two or more persons must be claiming it adversely to one another,
(c) The person from whom such debt, property money is claimed must not be claiming interest
therein other than the charges and cost and he must be ready and willing to pay or deliver it to
the rightful claimant, and,
(d) There must be no suit pending wherein the rights of rival claimants can be properly adjudicated.
In Mariyals Sambayya versus Narals Bala, AIR 1952 Mad 564, it was held that in order to decide whether
a suit is in the nature interpleader suit, the court must have regard to all the prayers in the plaint.
A suit does not become an interpleader suit merely because the plaintiff requires the defendants to
interplead with each other as regards one the prayers in the plaint.
Procedure:- Order XXXV lays down the In every procedure for interpleader suits. In interpleader suit, in
addition to other also statements, the plant also must state-
(i) That the plaintiff claims no interest in the Subject-matter in dispute other than the charges and
costs,
(ii) the claims have been made by defendant Severally, and
(iii) there is no collusion between the plaintiff and any of the defendants.
Summary Suit: Order XXXVII

y Order XXXVII provides summary procedure in Suits based on negotiable instruments of where the
plaintiff seeks to recover debt or liquidated amount.

y The essence of summary suits is that the defendant is not, as in an ordinary suit, entitled as of right
to defend the suit.
The essence of summary suit is that the defendant is not entitled, as a matter of right to defend the
suit, as in ordinary suits. In such suits, he must apply for the court’s leave to defend the suit, and
such leave is not granted if the defendant does not disclose facts indicating that he has a his disclose
Substantial defence to raise, or if defence is vexatious or frivolous.
Order XXXVII applies to the following classes of Suits

(a) suits upon bills of exchange, handiest and promissory notes
(b) suits in which the plaintiff seeks to recover a debt or liquidated demand in money. Payable by the
defendant, with or without interest, arising-
(i) on a written contract,
(ii) on an enactment, where the sun ought to be recovered is a fixed of money or in the nature of
debt other than a penalty, or
(iii) On a guarantee, where the claims against the principle are in respect of debt liquidated demand
only.
Institution of Summary Suits- Order XXXVIT Rule 2 the code provides that-
(a) The plaintiff shall make specific averment to the effect that the suit is filed under this order.
(b) The plaintiff should mention that no relief, which does not fall within the ambit of this rule, has
been claimed in the plaint.
Order XXVII Rule 2(3) states that the defendant shall not defend the suit unless he enters an appearance
within the prescribed time (i.e. to within 10 days from receiving the summers and in default the his
altering an appearance allegations in the plaint shall be deemed to be admitted and the plaintiff shall
be entitled to a decree for exceeding a sum, not the sum mentioned in the summons together with
interest at the rate specified, if any, up to the date of decree.
Procedure of Appearance of defendant- According of to Rule 3, Order XXX VII of the code:
(1) In a suit to which this Order applies, the plaintiff shall, together with the Summons under Rule 2,
serve on the defendant a copy of plaint and annexures
There to and the defendant may. time within 10 days of any such service, enter appearance either
in person or by pleader, in either case, he shall fill in court an address for service notices on him.
(2) Unless otherwise ordered, all summonses, notices and other judicial processes, required to be
served on the defendant, shall be deemed to have been duly served on if they are left at the
address given by him for such service.
(3) On the day of entering the appearance, notice of such appearance shall be given by defendant the
to the plaintiff’s pleader or if the plaintiff sues in person to the Plaintiff himself, either by notice
delivered at or rent by a prepaid letter directed to the address of the plaintiff’s pleader or the
plaintiff.
(4) If the defendant enters an appearance, the plaintiff shall thereafter serve on the Summon for
judgement, returnable not less than 10 days from the date of service supported by an affidavit
verifying the cause of action and the amount claimed and stating that in his belief there is no
defence in the suit

(5) The defendant may, at any time within at 10 days from service of such summons for judgements,
by affidavit or otherwise disclosing such facts may as be deemed sufficient to entitle him to
defend, apply on such summons for leave to defend Such suit, and leave to defend such suit, leave
to defend may be granted to him unconditionally or upon such terms as may appear to the court
or Judge to be just.
Power to set aside Expert Decree

The court has the power to set aside the ex-parte decree Entered in Summary litigation under Order
XXXVII Rule 4. If it is necessary to stay or set aside execution, and may give leave to the defendant to
appear to the summons and to defend the suit, if it seems reasonable to the court to do so, and on
such terms as the court thinks fit.
Review, Appeal, Revision and Inherent Power Reference

Reference (Section 113 of Order XLVI)
Section 113 the code empowers a subordinate court to state a case and refer the same for opinion of
the High Court. Such an opinion can be sought when the court itself feels some doubt about a question
of law.
The conditions which permit a reference are:
(a) There arise a question of law in any suit, appeal, execution from which no appeal lies,
(b) Theme is reasonable doubt on such question;
(c) The court draws facts of the case a statement of and the point on which doubt is entrained, and
(d) The court expresses its own opinion on the point
Only a court can refer a case either an application of a party or suo moto court means a court civil
judicature. A tribunal or persona designate cannot be said to be a “Court” and no reference can be
made by (Nanak Chand versus Estate Officer, AIR 1969 P&H 304).
The Question of law on which a subordinate Court may entertain a doubt may be divided into two
classes:
(i) those which relate to the validity of any Act, Ordinance or Regulation;
(ii) Other questions.
In the latter case, the reference is optional, but in former case, it is obligatory, in the following conditions
are fulfilled:
(a) It is necessary to decide such question in order to dispose of the case,
(b) The subordinate court is of the view that the impugned Act, ordinance of Regulation is ultra-vires,
and there is no determination either by the Supreme Court or by the High Court to which such
court is subordinate that such Act, Ordinance of regulation is ultra-vire.
Power and duty of High Court: The jurisdiction of High Court is constitutive
In dealing with and deciding the reference the High Court is not confined to the questions referred by
a subordinate court. In CIT versus Scindia Navigation Co., AIR 1961 SC 1633, it was held that if a new
aspect of law arises, the High Court can consider it.
The High Court shall decide the point so referred. If the parties appear and desire to be heard, the High
Court shall hear them before deciding point and the High Court shall transmit a copy of its judgement
to the referring court. On receipt thereof, the referring court shall proceed to dispose of case in
conformity with the decision High Court the High Court

Review (Section 114 & Order 47)
In Lily Thomas versus Union of India, (2000) 6 SCC 204, it was held that review means to consider, to
look again or to re-examine. It is a judicial re-examination of the case by the same court and by the
same judge. In review, a judge, who has disposed of the matter, reviews an earlier. Order passed by
him in certain circumstances. It was further held that a power of review should not be confused with
appellate powers which enable an appellate court to correct all errors committed by the subordinate
court.
Who may apply for review?

Section 114 as well as Rule 1 Order 47 enumerate that any person considering himself aggrieved -
(i) by a decree or order from which an appeal is allowed by this code, but from which no appeal has
been preferred,
(ii) by a decree or order from which no appeal is allowed by this code, or
(iii) by a decision on a reference from a court of small causes, which may apply for a review of
judgement to the court which passed the decree or made the order, and the court may make such
order thereon as it thinks fit.
The court cannot review suo-moto. Only a person aggrieved by decree or order may apply for review of
a Judgement
Grounds
(a) Discovery of new evidence- A review is permissible on the ground of discovery by the applicant of
some new and important matters of evidence which, after 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 order made.”
An application for review on the ground of discovery of new evidence should show that:
(i) such evidence was available and of untroubled character, and
(ii) that the evidence was so material that its absence might cause a miscarriage of justice.
(2) Error apparent on the face of record?

The power of review can be exercised where mistake or error apparent on the face of the record is
found and permitting the judgement or order to stand will lead to failure of justice.
The following have been held to be errors apparent on the face of the record: -
(a) where the want/lack of jurisdiction is apparent on the face of the record,
(b) where the judgement is pronounced without notice to the parties,
(c) failure to apply the law of limitation to the facts found by the court,
(d) Pronouncement of the judgement without taking into consideration the fact that the law has been
retrospectively amended,
(e) omission to decide issues and ignoring many important material on record.
(3) Any other sufficient reason: In Patel Narshi versus Pradymansinghji, AIR 1970 SC 1273, the Supreme
Court held that power of review is not an inherent power It must be conferred by law either.
Specifically, or through necessary implication review is also not an appeal in disguise. It cannot be
denied that justice is a Virtue which transcends all barriers and rules or procedures or technicalities
of law cannot stand in the way of administration justice. Law must bow before justice. If the court

finds that the error pointed out in review petition was under a mistake and the earlier judgement
would not have been passed but for the erroneous gent assumption which in fact did not exist and its
perpetration shall result in a miscarriage of justice, nothing would preclude the court from rectifying
the error.
The following have been held to be sufficient reasons for granting review -
(a) where a party had no notice or fair opportunity to produce fair his evidence
(b) where the decree or order has been under a passed misapprehension of the true state of
circumstances,
(c) where the court had failed to consider a material issue, fact or evidence, etc.
When Review lies-Circumstances

(a) Cases in which no appeal lies: In Ram Baksh versus Rajeshwall Kunwar, AIR 1948 All 213, it was held
that a decree or order from which no appeal lies is open to review. Hence, an application for review
against Court a decree passed by a court of Small causes is competent the on the same principle,
where an appeal is dismissed on the ground that it was incompetent or was time- barred, the
provisions of review would get attracted
(b) Cases in which appeal lies but not preferred: In Sitarama Sastry versus Sunderanima, AIR 1966
AP 173, it was held that a review petition is not maintainable in cases where appeal is provided
but no such appeal by the aggrieved party. The fact order is to Subject to appeal is no ground to
reject applications for review. An application for review can be presented so long as no appeal is
preferred against the order.
(c) Decisions on reference from court of Small Causes: In Ganeshi Lal versus Seth Mool Chand, AIR
1935 All 435, it was held that the code allows a review of judgement on a reference from a court
of Small causes.
Limitation
The period of limitation for an application for review of a judgement by a court other than the Supreme
Court is thirty days from the date decree or order.
Revision
Section 115 the Code empowers a High Court to entertain a revision in any case decided by any
Subordinate court in certain circumstances. This jurisdiction is known as revisional jurisdiction of the
High Court
Essential Conditions to exercise powers of Revision:

(i) There must be a case decided,
(ii) The court deciding the case must be one subordinate to the High Court,
(iii) the case must be one in which no appeal lies, and
(iv) The Subordinate court must have, in the decision of the case.
(a) exercised a jurisdiction not vested, it by law, or
(b) failed to exercise a jurisdiction vested in it by law, or
(c) must have acted in the exercise of its jurisdiction illegally or with material irregularity.

Limitations on Power of Revision
It empowers the High Court to satisfy itself upon three matters -
(1) that the order of the subordinate court is within its jurisdiction,
(2) that the case is one in which court ought to exercise jurisdiction, and that in exercising jurisdiction,
and
(3) that in exercising jurisdiction the court has not acted illegally
Appeal
Appeal appellum is proceeding by which the defeated party in a lawsuit applies to a higher court to
have the case reversed because of errors of judgement law committed or failure of considering some
issues in the court below.
Right to appeal is not a natural right attaching litigation to inherent. Such a right is given by the statute
or by the rules having the force of Statute Section 96 of the Code of Civil Procedure, 1908 expressly
provides a right of appeal from every decree passed by the court exercising original Jurisdiction
Kinds Appeal
Appeals from Appeals from Appeals from Appeals

original decree Appellate Decree Orders Supreme Court
Essentials: Every appeal has three basic elements—

(i) A decision,
(ii) An aggrieved person,
(iii) A reviewing body ready and willing to entertain an appeal.
Right of Appeal
y The remedy of right of appeal is a creation of statute and is not an inherent right of a person.
y The right of appeal is not merely a matter of procedure but is a substantive right.
y when a lis commences, all rights get crystallized and no clog upon likely a appeal can be put unless
the law is made retrospective, expressly or by implication
Appeal for Original Decree (first Appeal)

Section 96 of the code recognizes the right of appeal from every decree passed by any court exercising
original jurisdiction. It does not refer to or enumerate the persons who may file an appeal can be filed
under this section; two conditions must be satisfied:
(i) The subject- matter of the appeal must be a decree i.e. a conclusive determination of the right of
the parties with regard to all or any of the matters in controversy in the suit, and
(ii) the party appealing must have been adversely affected by such determination
[State of Punjab versus Amar Singh, (1974) 2 SCC 70]
The following principles are entitled to appeal under this Section:
(a) A Party to suit who is aggrieved or adversely affected by the decree or if such Party is dead, his
legal representatives,
(b) A guardian ad-litem, appointed by the court in a suit by or against a minor, other

(c) Any person, with the leave of the court, if he is adversely affected by the decree.
(d) A person claiming under a party to the suit or transferee of the interests of Such party, who, so far
as such interest is concerned, is bound by decree, provided his name is entered on the record of
the suit. [Banarasi versus Ram Phal, (2003) 9 SCC 606]
name is entered on the record of the suit. [Banarasi versus Ram Phal, (2003) 9 SCC 606]
Section 96(2): Appeal against ex-parte Decree

y An ex-parte decree is a decree which is passed against a defendant in absentia.
y An expert decree is legal, valid and enforceable like a bi-parte decree
y One of the remedies available to the defendant, against whom an ex-parte decree is passed, is to
file an appeal against such a decree under Section 96(2), though he may also file an application to
set aside an expert decree under Order 9 Rule 13.
y Both the remedies are concurrent and can be resorted simultaneously.
y The Supreme Court in Bhanu Kumar Jain versus Archana Kumar, AIR 2005 SC 626 observed that
“when an application under Order IX Rule 13 is dismissed, the defendant may avail a remedy available
there can only against, viz. to prefer an appeal. But in the event the appeal is dismissed, as a
result where off, the ex-parte decree passed by the trial court merges with the order passed by the
appellate court, having regard to the explanation appended to Order IX Rule 13, a Petition under Order
IX Rule 13 would not be maintainable.
Section 96(3): No appeal ties against Consent Decree

Section 96(3) provides that no appeal shall lie against the court with the decree passed by consent of
the parties. This provision is based on board principles of estoppel.
It is to be noted that if parties enter into an agreement and a decree is passed with their consent,
they are not supposed to be aggrieved and if not aggrieved, the question of appeal does not arise.
However, consent decrees can be Set aside only on grounds of fraud, mistake or representation by an
independent suit the following cases in which decrees though passed with the consent of parties, can
be appealed against. These cases are: -
(a) where the appellant appeals on the ground that it was not a decree passed with the consent of
parties, and that the lawyers of parties had consented without any authority from their respectful
clients.
(b) Where the appellant was not a party to the consent decree and the decree affects him prejudicially.
(c) Where the consent decree is passed without an order recording compromise- The reason is that
such recording A mere matter of form, is not and its absence deprives the party of a right of appeal
against the order if it has been passed.
Power of Court of Appeal

The Appellate court will include Appellate Tribunals exercising judicial functions. Section 1071 the code
provides that Subject to such limitations & conditions as may be prescribed; an appellate court shall
house power—
(a) to determine a case finally,
(b) to remand a case,
(c) to frame issues and refer them for trial,
(d) to take additional evidence or to require such evidence to be taken.

Appeals from Orders
Appeal does not die from every order of a civil court. Law provides for specific order against which an
appeal can be filed Section 104 to 106, 108 and order XLIII of the code provides regarding appeal from
orders. Order is a formal expression of any decision of a civil court, which is not a decree. Thus, where
the essentials of a decree are not fulfilled, the formal expression of any decision of the civil court is
an Order.
Orders from which appeals lie under Section 104: Only those orders which are specified in Section 104
and Rule 1 of Order 43 are appealable.
(i) an order under Section 35A: in case where compensatory cost in respect of false, vexatious claims
have been awarded. Such appeal is, however, limited to two grounds: -
(a) no such order could have been made, or
(b) an order for less amount ought to have been made.
(ii) an order under Section 91 refusing, to institute a suit against public nuisance,
(iii) an order under Section 92 refusing leave to institute a suit in case breach of trust,
(iv) an order under Section 95 awarding compensation for obtaining arrest, attachment or injunction
on insufficient grounds.
Orders from which appeals lie under Order 43, Rule 1

(a) An order under Order 7 Rule to returning a plaint to be presented to the proper Court
(b) An order under Order 9 Rule 9 rejecting an order to set aside dismissal of Suit for default,
(c) An order under Order 21, Rule 72 or 92 setting aside or refusing. Sale, to set-aside a sale,
(d) An order under Order 22, Rule 9 refusing to set aside the abatement or dismissal of Suit.
Section 105: Orders from which no appeal lies

The first part of Section 105(1) postulates that no appeal shall lie from any order unless such ought to
be expressly provided by Code. The first part of Section 105(1) reads the same as otherwise expressly
provided, no appeal shall lie from any order made by a court in the exercise of its appellate or original
Jurisdiction.
The underlying principle of Section 105 is that when an interlocutory order is appealable, the party
against whom such order is made is not bound to prefer appeal against it. There is no such law
which compels the party to appeal from every interlocutory order by which he may feel aggrieved.
Furthermore the Second part of Section 105 makes it clear that an order appealable under Section 104
may be questioned under Section 105 in an appeal from a decree in the suit even though appeal has
been preferred against the interlocutory order.

Landmark Judgements
Letter Addressed can be Entertained, to only One Judge of a Court

MC Mehta versus Union of India
[AIR 1987 SC 1086: 1987 (1) SCC 395: 1987 (1) SCR 819: 1986 (2) SCALE 1188]
Dated: 20 December 1986
Bench: PN Bhagwati, Ranganath Misra, GL Oza, and MM Dutt and KN Singh, JJ.
Facts: Some SC judges in Bandhua Mukti Morcha versus Union of India apprehended that letters
addressed to individual justices may involve court in frivolous cases and possibility view could be
taken that such letters do not invoke the jurisdiction of court as a whole, that such letters should not
be addressed to individual justices of court but to court or CJ and his companion judges.
Issue: Letter to an individual judge whether can be treated as WP?
Held: It was not right to reject a letter addressed to an individual justice of the court on ground that it
is not addressed to Court or CJ and his companion judges. The Court held that it was not right to reject
a letter addressed to the individual justice of the court on the grounds that it is not addressed to the
court or to the CJ and his companion judges. Further it was held that the court must not forget that
letters would ordinarily be addressed by poor and disadvantaged persons or by social action groups
who might not know, proper form of address; they know only a particular judge who comes from their
state and might address him.
—————
Review Petition Dismissal – Person not Entitled to any Relief

Rupa Ashok Hurra versus Ashok Hurra
[AIR 2002 SC 1771: 2002 (4) SCC 388: 2002 (3) SCALE 406: 2002 (2) SCR 1006]
Dated: 10 April 2002
Bench: Umesh C Banerjee, J.
Facts: Petitioner filed a petition even after remedy of review exhausted, opportunity could be provided
to aggrieved person under inherent powers of S.C. to seek relief in case of gross abuse of process of
court or gross miscarriage of justice.
Issue: After the dismissal of the review petition either under Article 32 of the Constitution or otherwise,
whether aggrieved person is entitled for any relief against final judgement/order of this Court?
Held: Aggrieved person, whether party or not, to case, cannot assail final judgement/order passed
by this court in application under Article 32 of the Constitution. Petitioner is entitled to relief ex
debito justitiae if he establishes a violation of principles of natural justice in that he was not party to
lis but judgement adversely affected his interests or if he was party, he was not served with notice
of proceedings and matter proceeded as if he had notice. Where the learned judge in proceedings
failed to disclose his connection with subject-matter or parties giving scope for apprehension of bias
and judgement adversely affects petitioner. Right to move this court exists for enforcement of rights
conferred by Part III of Constitution and conferred in terms of Article 32 and language used therein is
of widest amplitude but view seems to be in negative as regards issuance of writs.
—————

Senior Advocate Designation
Indira Jaising versus Supreme Court of India through Secretary General
[AIR 2017 SC 5017: 2017 (12) SCALE 532: 2017 (9) SCC 766: 2018 All SCR 880]
Dated: 12 October 2017
Bench: Ranjan Gogoi and Rohinton Fali Nariman, JJ.
Facts: Petitioner/Senior Advocate has a perception that there is flaw in the present system of designation
of Senior Advocates in SC of India and the system needs to be rectified and acceptable parameters to
be laid down. Challenging non-transparent and arbitrary method of designation of Senior Counsel by
courts in India, petition is filed.
Issue: Whether in designating Senior Advocate guidelines to be issued?
Held: Uniform parameters/guidelines should govern the exercise of designation of Senior Advocates
by all courts of the country including SC. Guidelines governing the exercise of designation of Senior
Advocates by SC and all HCs in the country laid down.
(i) All matters relating to the designation of Senior Advocates in SC of India and all HCs of the country
shall be dealt with by a permanent committee known as the “Committee for Designation of Senior
Advocates”.
(ii) The Permanent Committee will be headed by Hon’ble C.J.I and consists of two senior-most Judges
of SC of India or HCs, Attorney-General for India. All four members of the Committee will nominate
another member of the Bar to be the fifth member of the Permanent Committee.
(iii) All applications including written proposals by Hon’ble Judges will be submitted to the Secretariat.
(iv) The Permanent Committee will examine each case in light of data provided by the Secretariat of
the Permanent Committee, interview concerned Advocate and make an assessment on the basis
of point-based format.
(v) All names listed before the Permanent Committee/cleared by the permanent committee will go to
Full Court.
(vi) In the event of voting by secret ballot, decisions will be carried by the majority of judges.
(vii) In case Senior Advocate is guilty of conduct disentitling him to continue to be worthy of designation
by Full Court, it may review its decision to designate concerned person and recall same guidelines
are not exhaustive and may require reconsideration by suitable additions/deletions in light of
experience gained over a period of time.
—————
Transfer Petition – Video Conferencing

Santhini versus Vijaya Venkatesh
[AIR 2017 SC 5745: 2017 (12) SCALE 359: 2018 (1) SCC 1: 2018 (3) Civil LJ 429]
Bench: Dr. DY Chandrachud, J.
Facts: Pivotal concern raised by 2 Judge Bench of this court as to whether an order could be passed
providing a better alternative to every individual who is compelled to move this Court. Court transferred
the case as prayed and observed it will be open to transferee Court to conduct proceedings or record
evidence of witnesses who are unable to appear in Court by way of video conferencing.

Issue: Whether alternative mode of video conferencing could be thought of to avoid transfer of case?
Held: Video conferencing cannot be directed in the transfer petition. Expression of desire by wife or
husband is whittled down and smothered if Court directs that proceedings shall be conducted through
the use of video conferencing. There is statutory protection of both parties in matrimonial disputes
covered under Section 7 of the Family Courts Act, 1984 and conferment of power on the court with the
duty to persuade parties to reconcile. Command of the Section as well as spirit of Act will be in peril if
proceedings are directed to be conducted through video conferencing, and the cause of justice would
be defeated. In view of the scheme of the Act and Section 11, matrimonial disputes may be heard on
camera. After the settlement fails, if Family Court feels it appropriate that video conferencing will sub-
serve cause of justice, it may so direct, having regard to the facts and circumstances of each case.
—————
Election Petition – Limitation

Suman Devi versus Manisha Devi
[2018 SCC OnLine SC 1047: 2018 (10) SCALE 45: AIR 2018 SC 3912: 2018 (9) SCC 808]
Dated: 21 August 2018
Bench: Dipak Misra, CJ and Dr. DY Chandrachud, J.
Facts: In elections for post of Ward Council or appellants declared a winner. The petition under Section
176 of Haryana Panchayati Raj Act filed by respondents challenging said election. Application under
Order VII, Rule 11, CPC filed by appellant for rejection of petition on ground that said petition not
presented in person as required by Section 176. It was withdrawn and a second election petition filed
by respondent subsequently. Appellant again filed an application for rejection on ground that petition
was filed after 30 days from date of election and it was barred by limitation. Respondent filed an
application under Section 5 of Limitation Act read with Section 14 of the Limitation Act submitting to
exclude time spent between filing of first petition and its withdrawal while calculating the limitation
period. Appellants application under Order VII, Rule, 11, CPC admitted by Trial Court. Respondents
appeal against permission by the District Judge. Challenge against before HC by appellant dismissed
wide impugned order. Appeal filed before SC by appellant.
Issue: Whether Limitation Act applicable to Election Petition?
Held: For the presentation of Election Petition, Haryana Panchayati Raj Act is complete Code. Statute
mandates election petitions must be filed within 30 days from the date of declaration of election
results. Said period cannot be extended and Section 14 of the Limitation Act excluded. Specific
provision made by Legislature, any election petition which fails to comply with the same is liable to be
rejected. Impugned Judgement of HC set aside and election petition filed by respondent dismissed.
—————
Judicial Officer cannot be Penalised for Passing Erroneous Orders

Sujanapal P versus State of Kerala
[2016 (1) KLJ 498: 2016 (2) KLT 823: 2016 (3) SCT 611: 2016 (1) ILR (Ker) 565]
Dated: 25 January 2016
Bench: TB Radhakrishnan and Anu Sivaraman, JJ., High Court of Kerala
Facts: Appeal filed by appellant seeking relief for order directing State to pay ` 10 lakhs as compensation
to the petitioner/appellant by way of public law remedy. He sought direction to the State to realise that

compensation amount from the third respondent - judicial officer, to direct the second respondent
High Court of Kerala to initiate disciplinary proceedings against that judicial officer, and for other
appropriate reliefs as the High Court may deem fit to grant.
Issue: Whether a judicial officer cannot be penalised for passing erroneous orders?
Held: For violation of FRs, public law right to compensation is an extension into the realm of
Constitutional Law of the principles of Tort. Principles of the Law of Torts would apply in such cases as
well. A Judge may be liable to be proceeded against for a wrongful act done by him while acting in his
personal capacity. He may also become liable to be proceeded against if he misuses his judicial power
for personal gains or where the erroneous use of judicial power is shown to be dishonest or mala fide.
Except in these exceptional circumstances, a judicial officer is protected from legal action of whatever
nature for wrong orders rendered by him. Even if he commits an error and passes an erroneous order,
when the judicial officer is acting judicially, he would be protected from legal action.
—————
Supreme Court Guidelines
Inherent Powers of the High Court under Section 482 Cr.P.C.

Parbatbhai Aahir versus State of Gujarat
[2017 SCC OnLine SC 1189: AIR 2017 SC 4843: 2017 (9) SCC 641: 2017 (12) SCALE 187]
Dated: October 04, 2017
Bench: Justices Dipak Misra, AM Khanwilkar, Dr. DY Chandrachud.
The Supreme Court explained principles governing the inherent powers of the High Court under Section
482 CrPC. “Inherent power of the High Court has a wide ambit and plenitude it has to be exercised; (i)
to secure the ends of justice or (ii) to prevent an abuse of the process of any court.”
I Section 482 preserves the inherent powers of the High Court to prevent an abuse of the process
of any court or to secure the ends of justice. The provision does not confer new powers. It only
recognises and preserves powers which inhere in the High Court;
II. The invocation of the jurisdiction of the High Court to quash a First Information Report or a
criminal proceeding on the ground that a settlement has been arrived at between the offender
and the victim is not the same as the invocation of jurisdiction for the purpose of compounding
an offence. While compounding an offence, the power of the court is governed by the provisions
of Section 320 of the Code of Criminal Procedure, 1973. The power to quash under Section 482 is
attracted even if the offence is non-compoundable;
III. In forming an opinion whether a criminal proceeding or complaint should be quashed in the
exercise of its jurisdiction under Section 482, the High Court must evaluate whether the ends of
justice would justify the exercise of the inherent power;
IV. While the inherent power of the High Court has a wide ambit and plenitude it has to be exercised:
(i) to secure the ends of justice; or
(ii) to prevent an abuse of the process of any court;
V. The decision as to whether a complaint or First Information Report should be quashed on the
ground that the offender and victim have settled the dispute, revolves ultimately on the facts and
circumstances of each case and no exhaustive elaboration of principles can be formulated;

VI. In the exercise of the power under Section 482 and while dealing with a plea that the dispute
has been settled, the High Court must have due regard to the nature and gravity of the offence.
Heinous and serious offences involving mental depravity or offences such as murder, rape and
dacoity cannot appropriately be quashed though the victim or the family of the victim have settled
the dispute. Such offences are, truly speaking, not private in nature but have a serious impact on
society. The decision to continue with the trial in such cases is founded on the overriding element
of public interest in punishing persons for serious offences;
VII. As distinguished from serious offences, there may be criminal cases which have an overwhelming
or predominant element of a civil dispute. They stand on a distinct footing in so far as the exercise
of the inherent power to quash is concerned;
VIII. Criminal cases involving offences which arise from commercial, financial, mercantile, partnership or
similar transactions with an essentially civil flavour may in appropriate situations fall for quashing
where parties have settled the dispute;
IX. In such a case, the High Court may quash the criminal proceeding if in view of the compromise
between the disputants, the possibility of a conviction is remote and the continuation of a criminal
proceeding would cause oppression and prejudice;
X. There is yet an exception to the principle set out in propositions (viii); and
XI. Economic offences involving the financial and economic well-being of the State have implications
which lie beyond the domain of a mere dispute between private disputants. The High Court would
be justified in declining to quash where the offender is involved in an activity akin to a financial or
economic fraud or misdemeanour. The consequences of the act complained of upon the financial
or economic system will weigh in the balance.
—————
Bar to the Civil Court’s Jurisdiction

Dhulabhai versus State of Madhya Pradesh
[AIR 1969 SC 78: 1968 SCR (3) 662: 1968 (2) SCWR 674: 1968 (2) SCA 479]
Dated: 05 April, 1968
Bench: Justices M Hidayatullah, RS Bachawat, CA Vaidyialingam, KS Hegde, AN Grover.
The Exclusion of the jurisdiction of civil court is not readily to be inferred unless the following conditions
stated below apply:
1. Where the statute gives finality to the orders of the special tribunals the civil court’s jurisdiction
must be held to be excluded if there is adequate remedy to do what the civil courts would normally
do in a suit. Such provision, however, does not exclude those cases where the provisions of the
particular Act have not been complied with or the statutory tribunal has not acted in conformity
with the fundamental principles of judicial procedure.
2. Where there is an express bar of the jurisdiction of an examination of the scheme of the particular
Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not
decisive to sustain the jurisdiction of the civil court. [Where there is no express exclusion the
examination of the remedies and the scheme of the particular Act to find out the intendment
becomes necessary and the result of the inquiry may be decisive. In the latter case, it is necessary
to see if the statute creates a special right or a liability and provides for the determination of the
right or liability and further lays down that all questions about the said right and liability shall

be determined by the tribunals so constituted, and whether remedies normally associated with
actions in civil courts are prescribed by the said statute or not.]
3. Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals
constituted under that Act. Eventually, the High Court cannot go into that question on a revision
or reference from the decision of the Tribunals.
4. When a provision is already declared unconstitutional or the constitutionality of any provision is to
be challenged, a suit is open. A writ of certiorari may include a direction for a refund if the claim
is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to
replace a suit.
5. Where the particular Act contains no machinery for a refund of tax collected in excess of
constitutional limits or illegally collected suits lies.
6. Questions of the correctness of the assessment apart from its constitutionality are for the decision
of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final
or there is an express prohibition in the particular Act. In either case, the scheme of the particular
Act must be examined because it is a relevant enquiry.
—————
Bhopal Gas Leak Disaster, Bhopal Gas Tragedy

Union Carbide Corporation versus Union of India
[AIR 1992 SC 248: 1991 SCR Supp (1) 251: 1991 (4) SCC 584: 1991 (2) SCALE 675]
Bench: Justices MN Venkatachalliah, Rangnath Misra, KN Singh, AM Ahmadi, ND Ojha
Court briefly recapitulated the guidelines:
(i) The Claims Commissioner should, in the case of minors, invariably order the amount of compensation
awarded to the minor to be invested in long-term fixed deposits at least till the date of the minor
attaining majority. The expenses incurred by the guardian or next friend may, however, be allowed
to be withdrawn;
(ii) In the case of illiterate claimants also the Claims Commissioner should follow the procedure set
out in (i) above, but if a lump-sum payment is required for effecting purchases of any movable
or immovable property such as, agricultural implements, assets utilisable to earn a living, the
Commissioner may consider such a request after making sure that the amount is actually spent
for the purpose and the demand is not a ruse to withdraw money;
(iii) In the case of semi-literate persons, the Commissioner should ordinarily resort to the procedure
set out in (ii) above unless he is satisfied that the whole or part of the amount is required for
expanding an existing business or for purchasing some property for earning a livelihood.
(iv) In the case of widows the Claims Commissioner should invariably follow the procedure set out in
(i) above;
(v) In personal injury cases if further treatment is necessary withdrawal of such amount as may be
necessary for incurring the expenses for such treatment may be permitted;
(vi) In all cases in which investment in long-term fixed deposits is made it should be on condition
that the Bank will not permit any loan or advance on the fixed deposit and interest on the amount
invested is paid monthly directly to the claimant or his guardian, as the case may be.

It should be stipulated that the FDR shall carry a note on the face of the document that no loan
or advance will be allowed on the security of the said document without express permission.
(vii) In all cases liberty to apply for withdrawal in case of an emergency should be available to the
claimants.
Government might also consider such investments being handled by promulgating an appropriate
scheme under the Unit Trust of India Act so as to afford to the beneficiaries not only adequate returns
but also appropriate capital appreciation to neutralise the effect of denudation by inflation.
Point (J) is disposed of in terms of the foregoing directions.
We might now sum up the conclusions reached, the findings recorded and directions issued on the
various contentions:
(i) The contention that the Apex Court had no jurisdiction to withdraw to itself the original suits
pending in the District Court at Bhopal and dispose of the same in terms of the settlement
and the further contention that, similarly, the Court had no jurisdiction to withdraw the criminal
proceedings are rejected. It is held that under Article 142(1) of the Constitution, the Court had
the necessary jurisdiction and power to do so. Accordingly, contentions (A) and (B) are held and
answered against the petitioners.
(ii) The contention that the settlement is void for non-compliance with the requirements of Order
XXIII, Rule 3B, C.P.C. is rejected. Contention (C) is held and answered against the petitioners.
(iii) The contention that the Court had no jurisdiction to quash the criminal proceedings in the exercise
of power under Article 142(1) is rejected. But, in the particular facts and circumstances, it is held
that the quashing of the criminal proceedings was not justified. The criminal proceedings are,
accordingly, directed to be proceeded with. Contention (D) is answered accordingly.
(iv) The orders dated 14th-15th of February 1989 in so far a, they seek to prohibit future criminal
proceedings are held no to amount to a conferment of criminal immunity; but are held to be merely
consequential to the quashing of the criminal proceedings. Now that the quashing is reviewed, this
part of the order is also set aside. Contention (E) is answered accordingly.
(v) The contention (F) that the settlement and the orders of the Court thereon, are void as opposed
to public policy and as amounting to a stifling of criminal proceedings is rejected.
(vi) Having regard to the scheme of the Bhopal Gas Leak Disaster (Processing of Claims) Act, 1985, the
incidents and imperatives of the American Procedure of ‘Fairness Hearing’ is not strictly attracted
to the Court’s sanctioning of a settlement. Likewise, the absence of a “Re-opener” clause does not,
ipso facto, vitiate the settlement. Contention (G) is rejected.
(vii) It is held, per invitim, that if the settlement is set aside the UCC shall be entitled to the restitution
of the US 420 million dollars brought in by it pursuant to the orders of this Court. But such
restitution shall be subject to compliance with and proof of satisfaction of the terms of the order
dated 30th November 1986, made by the Bhopal District Court. Contention (H) is rejected subject
to the condition aforesaid.
(viii) The settlement is not vitiated for not affording the victims and victim-groups an opportunity
of being heard. However, if the settlement-fund is found to be insufficient, the deficiency is to
be made good by the Union of India as indicated in paragraph 72. Contention (I) is disposed of
accordingly.
(ix) On point (J), the following findings are recorded and directions issued:

(a) For expeditious disposal of the claims a time-bound consideration and determination of the
claims are necessary. Directions are issued as indicated in paragraph 77.
(b) In the matter of administration and disbursement of the compensation amounts determined,
the guidelines contained in the judgement of the Gujarat High Court in Muljibhai versus United
India Insurance Co, are required to be taken into account and, wherever applicable, applied.
Union of India is also directed to examine whether an appropriate scheme under the Unit Trust
of India Act could be evolved for the benefit of the Bhopal victims.
(c) For a period of 8 years facilities for medical surveillance of the population of Bhopal exposed
to MIC should be provided by periodical medical check-up. For this purpose, a hospital with at
least 500 beds strength, with the best of equipment and facilities should be established. The
facilities shall be provided free of cost to the victims at least for a period of 8 years from now.
The State Government shall provide suitable land free of cost.
(d) In respect of the population of the affected wards, [excluding those who have filed claims],
Government of India shall take out an appropriate medical group insurance cover from the Life
Insurance Corporation of India or the General Insurance Corporation of India for compensation
to those who, though presently asymptomatic and filed no claims for compensation, might
become symptomatic in future and to those later-born children who might manifest congenital
or prenatal MIC related afflictions. There shall be no upper individual monetary limit for the
insurance liability. The period of insurance shall be for a period of eight years in the future. The
number of persons to be covered by this group shall be about one lakh persons. The premia
shall be paid out of the settlement fund.
(e) On humanitarian consideration and in fulfilment of the offer made earlier, the UCC and UCIL
should agree to bear the financial burden for the establishment and equipment of a hospital,
and its operational expenses for a period of eight years.
—————
Anti-Suit Injunction
Modi Entertainment Network versus WSG Cricket Pte. Ltd.
[AIR 2003 SC 1177: 2003 (4) SCC 341: 2003 (1) SCALE 388: 2003 (1) SCR 480
Appeal (Civil) 422 of 2003]
Dated: 21 January 2003
Bench: Justices Syed Shah Quadri, Arijit Pasayat.
Principles emerged for governing grant of an anti-suit injunction:
(1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of the following
aspects:—
(a) The defendant, against whom injunction is sought, is amenable to the personal jurisdiction of
the court;
(b) If the injunction is declined the ends of justice will be defeated and injustice will be perpetuated;
and
(c) The principle of comity - respect for the court in which the commencement or continuance of
action/proceeding is sought to be restrained - must be borne in mind;
(2) In a case where more forms than one is available, the Court in the exercise of its discretion to
grant an anti-suit injunction will examine as to which is the appropriate forum (forum convenient)

having regard to the convenience of the parties and may grant an anti-suit injunction in regard to
proceedings which are oppressive or vexatious or in a forum non-convenient;
(3) Where the jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract, the
recitals therein in regard to the exclusive or non-exclusive jurisdiction of the court of choice of
the parties are not determinative but are relevant factors and when a question arises as to the
nature of jurisdiction agreed to between the parties the court has to decide the same on a true
interpretation of the contract on the facts and in the circumstances of each case;
(4) A court of natural jurisdiction will not normally grant an anti-suit injunction against a defendant
before it where parties have agreed to submit to the exclusive jurisdiction of a court including a
foreign court, a forum of their choice in regard to the commencement or continuance of proceedings
in the court of choice, save in an exceptional case for good and sufficient reasons, with a view to
prevent injustice in circumstances such as which permit a contracting party to be relieved of the
burden of the contract; or since the date of the contract the circumstances or subsequent events
have made it impossible for the party seeking injunction to prosecute the case in the court of
choice because the essence of the jurisdiction of the court does not exist or because of a vis major
or force majeure and the like;
(5) Where parties have agreed, under a non-exclusive jurisdiction clause, to approach a neutral foreign
forum and be governed by the law applicable to it for the resolution of their disputes arising under
the contract, ordinarily no anti-suit injunction will be granted in regard to proceedings in such a
forum convenience and favoured forum as it shall be presumed that the parties have thought over
their convenience and all other relevant factors before submitting to non-exclusive jurisdiction of
the court of their choice which cannot be treated just an alternative forum;
(6) A party to the contract containing jurisdiction clause cannot normally be prevented from
approaching the court of choice of the parties as it would amount to aiding breach of the contract;
yet when one of the parties to the jurisdiction clause approaches the court of choice in which
exclusive or non-exclusive jurisdiction is created, the proceedings in that court cannot per se be
treated as vexatious or oppressive nor can the court be said to be forum non-conveniens; and
(7) The burden of establishing that the forum of choice is a forum non-conveniens or the proceedings
therein are oppressive or vexatious would be on the party so contending to aver and prove the
same.
—————
Administrative Control: High Court

States of Rajasthan versus Prakash Chand
[AIR 1998 SC 1344: 1988 Cri LJ 2012: 1998 (1) SCC 1: 1997 (7) SCALE 411]
Bench: Justices AS Anand, MK Mukherjee, K Venkataswami.
Administrative control of the High Court vests in the Chief Justice of the High Court alone and that it is
his prerogative to distribute business of the High Court both judicial and administrative. He alone, has
the right and power to decide how the Benches of the High Court are to be constituted: which Judge is
to sit alone and which cases he can and is required to hear as also as to which judges shall constitute
a Division Bench and what work those benches shall do. In other words, the Judges of the High Court
can sit alone or in Division Benches and do such work only as may be allotted to them by an order of
or in accordance with the directions of the Chief justice.

1. That the administrative control of the High Court vests in the Chief Justice alone. On the judicial
side, however, he is only the first amongst the equals.
2. That the Chief Justice is the master of the roster. He alone has the prerogative to constitute
benches of the Court and allocate cases to the benches so constituted.
3. That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under
his directions.
4. That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit
in a Division Bench and no Division Bench can be split up by the Judges constituting the Bench
themselves and one or both the Judges constituting such bench sit singly and take up any other
kind of judicial business not otherwise assigned to them by or under the directions of the Chief
Justice.
5. That the Chief Justice can take cognizance of an application laid before him under Rule 55 (supra)
and refer a case to the larger bench for its disposal and the can exercise this jurisdiction even in
relation to a part-heard case.
6. That the puisne judges cannot “pick and Choose” any case pending in the High Court and assign
the same to himself or themselves for disposal without appropriate orders of the Chief Justice.
7. That no Judge or judges can give directions to the Registry for listing any case before him or them
which runs counter to the directions given by the Chief Justice.
8. That Shethna, J. had no authority or jurisdiction to send for the record of the disposed of writ
petition and made comments on the manner of transfer of the writ petition to the division Bench
or on the merits of that writ petition.
9. That all comments, observations and findings recorded by the learned judge in relation to the
disposed of writ petition were not only unjustified and unwarranted but also without jurisdiction
and make the Judge coram-non-judice.
10. That the “allegations” and “comments” made by the learned Judge against the Chief Justice of the
High Court, the Advocate of the petitioner in the writ petition and the learned Judges constituting
the Division Bench which disposed of writ petition No. 2949 of 1996 were uncalled for, baseless
and without any legal sanction.
11. That the observations of the learned Judge against the former Chief Justices of the High Court
of Rajasthan to the effect that they had “illegally” drawn full daily allowance while sitting at
Jaipur to which they were not entitled, is factually incorrect, procedurally untenable and legally
unsustainable.
12. That the “finding” recorded by the learned Judge against the present Chief Justice of India Mr.
Justice JS Verma, that till his elevation to the Supreme Court, he had, as Chief Justice of the
Rajasthan High Court, “illegally” drawn a daily allowance of Rs. 250/- while sitting at Jaipur and
had thereby committed “criminal” misappropriation of public funds” lacks procedural propriety,
factual accuracy and legal authenticity. The finding is wholly incorrect and legally unsound and
makes the motive of the author not above personal pique so wholly taking away dignity of the
judicial process.
13. That the disparaging and derogatory comments made in most intemperate language in the order
under appeal do not credit to the high office of a High Court Judge.
14. That the direction of Shethna, J. to issue notice to the Chief Justice of the High Court to show cause
why contempt proceedings be not initiated against him, for transferring a part-heard writ petition

from his Bench to the Division Bench for disposal, is not only subversive of judicial discipline and
illegal but is also wholly misconceived and without jurisdiction.
—————
Cross-objection
Superintending Engineer versus B Subba Reddy
[AIR 1999 SC 1741: (1999) 4 SCC 423: 1999 (2) SCR 880: 1999 (3) SCALE 55
Appeal (Civil) 451-58 of 1994]
Dated: 26 April 1999
Bench: Justices DP Wadhwa and N Santosh Hegde
Issues: First is whether cross-objections are not maintainable under Section 41 of the Act; and second
is that the arbitrator could not award interest for the period prior to the reference of disputes to him.
Not only that the arbitrator awarded interest over interest which he had no authority to do.
In the view this court the following principles emerge:—
1. Appeal is a substantive right. It is a creation of the statute. Right to appeal does not exist unless
it is specifically conferred,
2. Cross objection is like an appeal. It has all the trappings of an appeal. It is filed in the form of
memorandum and the provisions of Rule 1 of Order XLI of the Code, so far as these relate to the
form and contents of the memorandum of appeal apply to cross-objection as well.
3. Court fee is payable on cross-objection like that on the memorandum of appeal. Provisions relating
to appeals by indigent persons also apply to cross-objection.
4. Everywhere the appeal is withdrawn or is dismissed for default, cross-objection may nevertheless
be heard and determined.
5. Respondent even though he has not appealed may support the decree on any other grounds but if
wants to modify it, he has to file a cross-objection to the decree which objections he could have
taken earlier by filing an appeal. Time for filing an objection which is in the nature of appeal is
extended by one month after service of notice on him of the day fixed for hearing the appeal. This
time could also be extended by the Court like in an appeal.
6. Cross-objection is nothing but an appeal, a cross-appeal at that. It may be that the respondent
wanted to give quietus to the whole litigation by accepting the judgement and decree or order
even if it was partly against his interest. When, however, the other party challenged the same by
filing an appeal statute gave the respondent a second chance to file an appeal by way of cross-
objection if he still felt aggrieved by the judgement and decree or order.
—————
Ex Parte Injunction
Morgan Stanley Mutual Fund versus Kartick Das
[(1994) 4 SCC 225: JT 1994 (3) SC 654: 1994 (2) SCALE 121: 1994 (2) MLJ 97]
Dated: 20 May 1994
Bench: Justice S Mohan, MN Venkatachalliah and AS Anand
As a principle, ex parte injunction could be granted only under exceptional circumstances. The factors
which should weigh with the court in the grant of ex parte injunction are—

(a) Whether irreparable or serious mischief will ensue to the plaintiff;
(b) Whether the refusal of ex parte injunction would involve greater injustice than the grant of it would
involve;
(c) The Court will also consider the time at which the plaintiff first had notice of the act complained
so that the making of improper order against a party in his absence is prevented;
(d) The Court will consider whether the plaintiff had acquiesced for sometimes and in such
circumstances, it will not grant ex parte injunction;
(e) The Court would expect a party applying for ex parte injunction to show utmost good faith in
making the application.
(f) Even if granted, the ex parte injunction would be for a limited period of time.
(g) General principles like prima facie case, balance of convenience and irreparable loss would also
be considered by the court.
—————
Grant of Injunction
Colgate Palmolive (India) Ltd. versus Hindustan Lever Ltd.
[AIR 1999 SC 3105: (1999) 7 SCC 1: 1999 (5) SCALE 95: 1999 DNJ 405]
Dated: x 18 March 1999
Bench: Justices BN Kirpal and Umesh C Banerjee.
The grant of an interlocutory injunction during the pendency of legal proceedings is a matter requiring
the exercise of discretion of the court. While exercising discretion the court applies the following
tests—
(i) whether the plaintiff has a prima facie case;
(ii) whether the balance of convenience is in favour of the plaintiff; and
(iii) whether the plaintiff would suffer an irreparable injury if his prayer for interlocutory injunction
is disallowed. The decision whether or not to grant an interlocutory injunction has to be taken
at a time when the existence of the legal right assailed by the plaintiff and its alleged violation
are both contested and uncertain and remain uncertain till they are established at the trial on
evidence. Relief by way of interlocutory injunction is granted to mitigate the risk of injustice
to the plaintiff during the period before that uncertainty could be resolved. The object of the
interlocutory injunction is to protect the plaintiff against injury by violation of his right for which
he could not be adequately compensated in damages recoverable in the action if the uncertainty
were resolved in his favour at the trial. The need for such protection, has, however, to be weighed
against the corresponding need of the defendant to be protected against injury resulting from his
having been prevented from exercising his own legal rights for which he could not be adequately
compensated. The Court must weigh one need against another and determine where the “balance
of convenience” lies. (As quoted from Gujarat Bottling Co. Ltd. versus Coca Cola Co., (1995) 5 SCC
545: AIR 1995 SC 2372).
The other considerations which ought to weigh with the Court hearing the application or petition for
the grant of injunctions are as below:
(i) Extent of damages being an adequate remedy;
(ii) Protect the plaintiff’s interest for violation of his rights though however having regard to the injury
that may be suffered by the defendants by reason therefor;

(iii) The court while dealing with the matter ought not to ignore the factum of strength of one party’s
case being stronger than the others;
(iv) No fixed rules or notions ought to be had in the matter of grant of injunction but on the facts and
circumstances of each case - the relief being kept flexible;
(v) The issue is to be looked from the point of view as to whether on refusal of the injunction the
plaintiff would suffer irreparable loss and injury keeping in view the strength of the parties case;
(vi) Balance of convenience or inconvenience ought to be considered as an important requirement
even if there is a serious question or prima facie case in support of the grant;
(vii) Whether the grant or refusal of injunction will adversely affect the interest of the general public
which can or cannot be compensated otherwise.
—————
Discretion in the Matter of Allotment

Centre for Public Interest Litigation versus Union of India
[(1995) Supp 3 SCC 382: 1998 (2) SCALE 474: 1998 (4) SLT 359
Writ Petition (C) No. 886 of 1993]
Dated: 31 March 1995
Bench: Justices JS Verma and Sujata V Manohar.
The following are the guidelines which are to be the guiding factors in discretionary allotments of
dealership/distributorship on compassionate grounds:
(1) Dependent of a person who has made supreme sacrifice for the nation, but has not been properly
rehabilitated so far;
(2) Member of a family which has been a victim of unforeseen circumstances, like terrorist attack,
earthquake, floods etc;
(3) Physically handicapped person;
(4) Defence/para-military/police personnel/other Central/State Government employees, who are
permanently disabled on duty;
(5) Immediate next of kin, namely, widow, parents, children of those who lost their lives in abnormal
circumstances;
(6) Eminent professionals like outstanding sportsmen, musicians, literatures etc. and women, of high
achievements, in distress;
(7) Individual cases of extreme hardship, which in the opinion of Government are extremely
compassionate and deserve sympathetic consideration in view of the special circumstances of the
case at the given time;
(8) The number of discretionary allotments should not ordinarily exceed 10% of the average annual
marketing plan of which allotments of retail outlets for petroleum products should not normally
exceed 5%.
General Conditions:
(1) He/she should be a citizen of India;
(2) He/she or any of his/her following close relatives (including step-relatives) should not already hold
a dealership of petroleum products of any oil company: (I) spouse, (II) father/mother, (III) brother,
(IV) son/daughter-in-law.

“Procedures”
As regards the procedure to be followed for discretionary allotments, the suggestions, are as under:
(I) Candidates will submit a proper application giving their complete bio-data indicating the name of
spouse/father, occupation, permanent address, annual income for the preceding year in respect of
self, spouse and parents from all sources etc. enclosing documentary evidence wherever necessary
in support of their request and an affidavit verifying the given facts. Where allotments are sought
on a partnership basis, each partner will furnish the above information individually;
(II) Applications will be processed by the office in the light of the eligibility criteria and submitted
through an established channel for the orders of the Minister. The Hon’ble Minister must personally
decide each case, and the order should be a speaking order. An unsuccessful applicant in the
same category if he applies for it, shall be supplied a copy of that order;
(III) Necessary verification regarding caste, multiple norms, income, etc. in respect of successful
candidates will be done before issuing the Letter of Intent to the allottee;
(IV) If the information furnished by a candidate is subsequently found to be wrong/forged, allotment
made on this basis will be cancelled.
TO BE INSERTED IN THE BROCHURE OF GUIDELINES FOR SELECTION OF DEALERS THROUGH THE OIL
SELECTION BOARD
“Discretionary Quota”
A discretionary quota will be earmarked for deserving cases on genuine compassionate grounds. This
quota will be outside the 100-point roster of marketing plans and outside the purview of the Oil
Selection Boards. Candidates will submit a proper application to the Ministry, giving their complete
bio-data indicating the name of spouse/father, occupation, permanent address, annual income for the
preceding year in respect of self, spouse and parents from all sources enclosing documentary evidence
wherever necessary in support of their request and an affidavit verifying the given facts. Discretionary
allotment will be made to a candidate only if he is a citizen of India. If he/she or any of his/her following
close relatives (including step-relatives) does not already hold a dealership of petroleum products of
any oil company:
(I) spouse
(II) father/mother
(III) brother
(IV) son/daughter-in-law.
4. We hereby direct that the above-quoted norms/guidelines etc. shall be followed by the Central
Government in making all such discretionary allotments of retail outlets for petroleum products, LPG
Dealership, and SKO Dealership, hereafter. A copy of this order be provided to every oil company by the
Central Government for general information.
—————

Legal Representative
N Jayarama Reddy versus Revenue Divisional Officer & Land Acquisition Office, Kurnoo
[AIR 1979 SC 1393: 1979 SCR (3) 599: 1979 (3) SCC 578: 1979 (2) SCJ 486]
Dated: 23 March 1979
Bench: Justices PN Singhal and DS Desai
(1) If all legal representatives are not impleaded after diligent search and some are brought on record
and if the Court is satisfied that the estate is adequately represented meaning thereby that the
interests of the deceased party are properly represented before the Court, an action would not
abate.
(2) If the legal representative is on record in a different capacity, the failure to describe him also in
his other capacity as legal representative of the deceased party would not abate the proceeding.
(3) If an appeal and cross-objections in the appeal arising from a decree are before the appellate
court and the respondent dies, the substitution of his legal representatives in the cross-objections
being part of the same record, would ensure for the benefit of the appeal and the failure of the
appellant to implead the legal representatives of the deceased respondent would not have the
effect of abating the appeal but not vice versa.
(4) A substitution of legal representatives of the deceased party in an appeal or revision even against
an interlocutory order would ensure for the subsequent stages of the suit on the footing that the
appeal is a continuation of a suit and introduction of a party at one stage of a suit would ensure
for all subsequent stages of the suit.
(5) In cross-appeals arising from the same decree where parties to a suit adopt rival positions, on the
death of a party if his legal representatives are impleaded in one appeal it will not ensure for the
benefit of cross-appeal and the same would abate.
—————
Grant of License – Liquor Rules

Ashok Lanka versus Rishi Dixit
[AIR 2005 SC 2821: (2005) 5 SCC 598: 2005 (5) SCALE 202: 2005 AIR (SCW) 2676
Appeal (Civil) 3279 of 2005]
Dated: 11 May 2005
Bench: Justices N Santosh Hegde and SB Sinha
Chattisgarh Excise Settlement of Licences for Retail Sale of Country/Foreign Liquor Rules (2002), rule
9 – Licence for shops of country/foreign liquor Eligibility conditions – Filing of affidavit by applicant
– Powers of Commissioner – Constitution of India, article 265 – Tax and fee – Licence for shop of
country/foreign liquor.
Court issued the following directions:
i. The Member Secretary shall scrutinize all the applications of the successful candidates afresh and
prepare a summary report within one week from date.
ii. Irrespective of the format prescribed by the Commissioner of Excise, each of the selected candidates
must file an appropriate affidavit, which would be in strict compliance of the requirement of Rule
9.

iii. Such affidavits must be filed before the respective committees within one week from date, the
contents whereof would be verified in terms of Order VI, Rule 15 of the Civil Procedure Code. The
said affidavits shall be scrutinized by the Committee so as to enable them to arrive at a finding as
to whether the applicants fulfil the eligibility criteria and are otherwise suitable for grant of licence
under the Act and the rules.
iv. The writ petitioners or any other person in the locality may file appropriate applications before
the said Committee with a view to show that the selected candidates do not fulfill the eligibility
criteria or are debarred or are otherwise unsuitable from obtaining a licence under the Act.
v. Such objections may also be filed within two weeks from date. The Committee may consider
the said objections and, if necessary, may call for further or better particulars from the selected
candidates so as to satisfy themselves about their eligibility etc.
vi. The respective District Level Committees shall strictly verify and scrutinize the affidavits as also
other documents furnished by the said applicants so as to arrive at a decision that the statutory
requirements have been complied with upon application of their mind.
vii. The members of the Committee are made personally liable to see that all statutory requirements
are complied with. They would strictly apply the statutory provisions as regard eligibility and
suitability of the candidates.
viii. The aforementioned exercise by the Committee should be completed within one month. In the
event, any affidavit filed by a selected candidate either pursuant to this order or filed earlier in
the format prescribed by the Commissioner of Excise is found to be incorrect, strict action in
accordance with the law shall be taken against him
ix. The Superintendent of Police of each district within whose jurisdiction the selected candidates
ordinarily reside shall verify the antecedents and other relevant particulars of the selected
candidates vis-a-vis their eligibility/suitability to obtain a licence and submit a report to the
Committee by 12.6.2005 which would be strictly in terms of sub-rule (3) of Rule 9. While issuing
such a certificate in favour of the selected candidates by 12.6.2005, he shall also file a copy of the
report before the Committee.
x. We direct the Chief Secretary of the State and Commissioner of Excise to act strictly in accordance
with law and oversee the functioning of the Scrutiny Committees.
xi. If the State and the Commissioner of Excise come across misconduct on the part of any of
the officers including the members of the Committee, strict action must be taken against the
concerned officer.
xii. The selected candidates in the meanwhile may carry on the trade in liquor pursuant to the licence
granted in their favour but the same shall be subject to this order as also the decision of the
Scrutiny Committee.
—————

Principal sum Adjudged and Such Principal Sum
Central Bank of India versus Ravindra
[AIR 2001 SC 3095: (2002) 1 SCC 367: 2001 (7) SCALE 351: 2002 (2) BCR 616
Special Leave Petition (Civil) 2421 of 1993]
Bench: Justices AS Anand, KT Thomas, RC Lahoti, N Santosh Hegde and SN Variava
Meaning of the phrases “the principal sum adjudged” and “such principal sum” as occurring in Section
34 of the Code of Civil Procedure, 1908.
In view of the law having been settled with this judgement, it is expected henceforth from the banks,
bound by the directives of the Reserve Bank of India, to make an averment in the plaint that interest/
compound interest has been charged at such rates, and capitalised at such periodical rests, as are
permitted by, and do not run counter to, the directives of the Reserve Bank of India. A statement of
account shall be filed in Court showing details and giving particulars of debit entries, and if debit
entry relates to interest, then setting out also the rate of, and the period for which, the interest has
been charged. On the Court being prima facie satisfied, if a dispute is raised in that regard, of the
permissibility of debits, the onus would be on the borrower to show why the amount of debit balance
appearing at the foot of the account and claimed as principal sum cannot be so accepted and adjudged.
This practice would narrow down the scope of controversy in suits filed by banking institutions and
enable an expeditious disposal of the suits, the issues wherein are by and large capable of being
determined by documentary evidence. RBI directives have not only statutory flavour, any contravention
thereof or any default in compliance therewith is punishable under sub-section (4) of Section 46 of
Banking Regulations Act, 1949. The Court can act on the assumption that transactions or dealings have
taken place and accounts maintained by banks in conformity with RBI directives.
We have dealt with the law governing the debtor and creditor relationship. We have not dealt with
any provision or principle of taxation law where under deemed payment of interest consequent upon
capitalisation and actual payment whenever made may be treated as capital or revenue which question
shall have to be determined under the scheme of relevant statutory enactment.
Subject to the above we answer the reference in the following terms:
(1) Subject to a binding stipulation contained in a voluntary contract between the parties and/or an
established practice or usage interest on loans and advances may be charged on periodical rests
and also capitalised on remaining unpaid. The principal sum actually advanced coupled with the
interest on periodical rests so capitalised is capable of being adjudged as principal sum on the
date of the suit.
(2) The principal sum so adjudged is ‘such principal sum’ within the meaning of Section 34 of the Code
of Civil Procedure Code, 1908 on which interest pendente lite and future interest i.e., post-decree
interest, at such rate and for such period which the Court may deem fit, may be awarded by the
Court.
(3) Corporation Bank versus H.S. Gowda, [1994] 5 SCC 213 and Bank of Baroda versus Jagannath
Pigment & Chem. have been correctly decided.
However, we propose to place on record a few incidental observations, without which, we feel, our
answer will not be complete and that we do as under:—
1. Though interest can be capitalised on the analogy that the interest falling due on the accrued date
and remaining unpaid, partakes the character of amount advanced on the date, yet penal interest,

which is charged by way of penalty for non-payment, cannot be capitalised. Further interest, i.e.,
interest on interest, whether simple, compound or penal, cannot be claimed on the amount of
penal interest. Penal interest cannot be capitalised. It will be opposed to public policy.
2. Novation, that is, a debtor entering into a fresh agreement with a creditor undertaking payment of
previously borrowed principal amount coupled with interest by treating the sum total as principal,
any contract express or implied and an express acknowledgement of accounts, are best evidence
of capitalisation. Acquiescence in the method of accounting adopted by the creditor and brought
to the knowledge of the debtor may also enable interest being converted into principal. A mere
failure to protest is not acquiescence.
3. The prevalence of banking practice legitimises stipulations as to interest on periodical rests and
their capitalisation being incorporated in contracts. Such stipulations incorporated in contracts
voluntarily entered into and binding on the parties shall govern the substantive rights and
obligations of the parties as to recovery and payment of interest.
4. Capitalisation method is founded on the principle that the borrower failed to make payment
though he could have made and thereby rendered himself a defaulter. To hold an amount debited
to the account of the borrower capitalised it should appear that the borrower had an opportunity
of making the payment on the date of entry or within a reasonable time or period of grace from the
date of debit entry or the amount falling due and thereby avoiding capitalisation. Any debit entry
in the account of the borrower and claimed to have been capitalised so as to form an amalgam
of the principal sum may be excluded on being shown to the satisfaction of the Court that such
debit entry was not brought to the notice of the borrower and/or he did not have the opportunity
of making payment before capitalisation and thereby excluding its capitalisation.
5. The power conferred by Sections 21 and 35A of the Banking Regulation Act, 1935 is coupled with
the duty to act. Reserve Bank of India is the prime banking institution of the country entrusted
with a supervisory role over banking and conferred with the authority of issuing binding directions,
having statutory force, in the interest of public in general and preventing banking affairs from
deterioration and prejudice as also to secure the proper management of any banking company
generally. The Reserve Bank of India is one of the watchdogs of finance and economy of the nation.
It is, and it ought to be, aware of all relevant factors, including credit conditions as prevailing,
which would invite its policy decisions. RBI has been issuing directions/circulars from time-to-
time which, inter alia, deal with rate of interest which can be charged and the periods at the end
of which rests can be struck down, interest calculated thereon and charged and capitalised. It
should continue to issue such directives. Its circulars shall bind those who fall within the net of
such directives. For such transactions which are not squarely governed by such circulars, the RBI
directives may be treated as standards for the purpose of deciding whether the interest charged
is excessive, usurious or opposed to public policy.
6. Agricultural borrowings are to be treated on a pedestal different from others. Charging and
capitalisation of interest on agricultural loans cannot be permitted in India except on annual
or six-monthly rests depending on the rotation of crops in the area to which the agriculturist
borrowers belong.
7. Any interest charged and/or capitalised in violation of RBI directives, as to rate of interest, or as
to periods at which rests can be arrived at, shall be disallowed and/or excluded from capital sum
and be treated only as interest and dealt with accordingly.

8. Award of interest pendente lite and post-decree is discretionary with the court as it is essentially
governed by Section 34 of the Civil Procedure Code de hors the contract between the parties. In a
given case if the court finds that in the principal sum adjudged on the date of the suit the component
of interest is disproportionate with the component of the principal sum actually advanced, the
court may exercise its discretion in awarding interest pendente lite and post-decree interest at
a lower rate or may even decline awarding such interest. The discretion shall be exercised fairly,
judiciously and for reasons and not in an arbitrary or fanciful manner.
—————
Notice under Section 80 Code of Civil Procedure

State of Andhra Pradesh versus Gundugola Venkata Suryanarayana Garu
[AIR 1965 SC 11: 1964 (4) SCR 945: 1964 (1) Ker LR 246: 1964 All LJ 129]
Dated: 12 September 1963
Bench: Justices JC Shah, AK Sarkar and Raghubar Dayal
The object of the notice under Section 80 is to give to the Government or the public servant concerned
an opportunity to reconsider its or his legal position and if that course is justified to make amends or
settle the claim out of Court. The Section is imperative and must undoubtedly be strictly construed:
failure to serve a notice complying with the requirements of the statute will entail dismissal of the
suit. But the notice must be reasonably construed. Every venial error or defect cannot be permitted to
be treated as a peg to him a defence to defeat a just claim. In each case in considering whether the
imperative provisions of the statute are complied with, the Court must face the following questions:
(1) Whether the name, description and residence of the plaintiff are given so as to enable the
authorities to identify the person serving the notice;
(2) Whether the cause of action and the relief which the plaintiff claims are set out with sufficient
particularity;
(3) Whether the notice in writing has been delivered to or left at the office of the appropriate authority
mentioned in the Section; and
(4) Whether the suit is instituted after the expiration of two months after notice has been served, and
the plaint contains a statement that such a notice has been so delivered or left.
In construing the notice, the Court cannot ignore the object of the Legislature to give to the Government
or the public servant concerned an opportunity to reconsider its or his legal position. If on a reasonable
reading but not so as to make undue assumptions the plaintiff is shown to have given the information
which the statute requires him to give, any incidental defects or errors may be ignored.
—————
Doctrine of Precedent
Central Board of Dawoodi Bohra Community versus State of Maharashtra
[AIR 2005 SC 752: (2005) 2 SCC 673: 2004 (10) SCALE 501: 2005 (26) AIC 423
Writ Petition (Civil) 740 of 1986]
Bench: Justices RC Lahoti, SV Patil, KG Balakrishnan, BN Srikrishna and AK Mathur.
(1) The law laid down by this Court in a decision delivered by a Bench of larger strength is binding on
any subsequent Bench of lesser or co-equal strength.

(2) A Bench of a lesser quorum cannot doubt the correctness of the view of the law taken by a Bench
of a larger quorum. In case of doubt, all that the Bench of lesser quorum can do is to invite the
attention of the Chief Justice and request for the matter to be placed for hearing before a Bench
of larger quorum than the Bench whose decision has come up for consideration. It will be open
only for a Bench of co-equal strength to express an opinion doubting the correctness of the view
taken by the earlier Bench of co-equal strength, whereupon the matter may be placed for hearing
before a Bench consisting of a quorum larger than the one which pronounced the decision laying
down the law the correctness of which is doubted.
(3) The above rules are subject to two exceptions:
(i) The abovesaid rules do not bind the discretion of the Chief Justice in whom vests the power
of framing the roster and who can direct any particular matter to be placed for hearing before
any particular Bench of any strength; and
(ii) In spite of the rules laid down hereinabove, if the matter has already come up for hearing
before a Bench of larger quorum and that Bench itself feels that the view of the law taken by
a Bench of lesser quorum, which view is in doubt, needs correction or reconsideration then
by way of exception (and not as a rule) and for reasons it may proceed to hear the case and
examine the correctness of the previous decision in question dispensing with the need of a
specific reference or the order of Chief Justice constituting the Bench and such listing.
Legal Maxims
y “Res judicata” means a thing adjudged or a matter judged.
y “Res subjudice” means ‘under judgement’ or stay of suit.
y “Interest reipublicae ut sit finis litium” means “it is to the interest of the state that there be a limit to
litigation or public interest demands an end to the litigation of the same issue.
y “Res judicata pro veritate accipitur” means a thing adjudicated is received as the truth or a thing
adjudged is accepted for the truth.
y “Nemo debet bis vexari pro una et eadem causa” means no man shall be punished twice for the same
offence or a man shall not be vexed twice for one and the same cause.
y “Actus curiae neminem gravabit” means that the act of the Court shall prejudice no one or the act of
the Court shall prejudice no man.
y “Habeas corpus” means “may you have the body” or “you have the body”.
y “Mandamus” means “we command” or issuance of an order or writ from a court of superior jurisdiction
that commands an inferior tribunal/court to perform, or refrain from performing, a particular act, the
performance of which is required by law as an obligation.
y “Quo warranto” means “by what warrant” or it is a writ to challenge a person’s right to hold a public
or corporate office.
y “Certiorari” means to be more fully informed.
y “Lex non cogit ad impossibilia” means law does not compel the performance of what is impossible
or law does not compel a man to do something which he cannot possibly perform.
y “Ex parte” means a decision decided by a judge without requiring all of the parties to the dispute to
be present.

y “Guardian ad litem” is a person who defends the suit on behalf of a minor or is a person who is
appointed by the Court to represent a minor who has been defendant in suit.
Words and Phrases: Legally Defined
Any other sufficient reason

The Expression “any other sufficient reason” used in Order XLVII, Rule 1 means a reason sufficiently
analogous to those specified in the rule. Any other attempt, except an attempt to correct an apparent
error or an attempt not based on any ground set out in Order XLVII, would amount to an abuse of the
liberty given to the Tribunal under the Act to review its judgement; Ajit Kumar Rath versus State of
Orissa, 1999 (9) SCC 596.
Cause of Action
Cause of action, as is well-settled, is a bundle of facts which are necessary to be proved in a given
case. Cause of action, it is trite, if arises within the jurisdiction of the court concerned empowers the
court to entertain the matter. Determination of territorial jurisdiction of a civil court is governed by the
provisions of the Code of Civil Procedure (for short, ‘the Code’). Section 16 of the Code provides for the
institution of the suits where subject-matter of the suit is situated. Section 17 of the Code refers to
the suits for immovable property within the jurisdiction of different courts. Section 18 refers to place
of institution of a suit where local limits of the jurisdiction of courts are uncertain; whereas Section 19
of the Code contemplates suits for compensation for wrongs to person or movables, Section 20 of the
Code, wherewith we are concerned in this case, provides that the suits which do not come within the
purview of Sections 16 to 19 of the Code are to be instituted where the defendants reside or cause of
action arises in the following terms:
Section 20 - 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 or 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; M/s. Dhodha House versus SK Maingi, JT 2006 (1) SC 123: 2006 (16) CLABL Supp 22: 2006 (1) Cur
CC 28: 2006 (32) PTC: AIR 2006 SC 730.
The Expression “cause of action” has acquired a judicially-settled meaning. In the restricted sense,
cause of action means the circumstances forming the infraction of the right or the immediate occasion
for the action. In the wider sense, it means the necessary conditions for the maintenance of the
suit, including not only the infraction of the right, but the infraction coupled with the right itself.

Compendiously the expression means every fact which it would be necessary for the plaintiff to prove,
if traversed, in order to support his right to the judgement of the Court.
Every fact which is necessary to be proved, as distinguished from every piece of evidence which is
necessary to prove each fact, comprises “cause of action”. It has to be left to be determined in each
individual case as to where the cause of action arises.
Halsbury’s Laws of England (4th Edition) – “Cause of action has been defined as meaning simply a
factual situation, the existence of which entitles one person to obtain from the court a remedy against
another person. The phrase has been held from the earliest time to include every fact which is material
to be proved to entitle the plaintiff to succeed, and every fact which a defendant would have a right
to traverse. ‘Cause of action’ has also been taken to mean that a particular act on the part of the
defendant which gives the plaintiff his cause of complaint, or the subject-matter of grievance founding
the action, not merely the technical cause of action”; Rajiv Modi versus Sanjay Jain, Criminal Appeal No.
1214 of 2009: SLP (Crl) No. 4278 of 2008.
Cause of action - “The Expression “cause of action” is generally understood to mean a situation or
state of facts that entitles a party to maintain an action in a court or a tribunal; a group of operative
facts giving rise to one or more bases for sitting; a factual situation that entitles one person to obtain
a remedy in court from another person. In Black’s Law Dictionary a “cause of action” is stated to be
the entire set of facts that gives rise to an enforceable claim; the phrase comprises every fact, which,
if traversed, the plaintiff must prove in order to obtain judgement. In Words and Phrases (4th Edn.),
the meaning is attributed to the phrase “cause of action; Y Abraham Ajith versus Inspector of Police,
(2004) 8 SCC 100.
Cause of action - The expression “cause of action” has sometimes been employed to convey the
restricted idea of facts or circumstances which constitute either the infringement or the basis of a
right and no more. In a wider and more comprehensive sense, it has been used to denote the whole
bundle of material facts which a plaintiff must prove in order to succeed. These are all those essential
facts without the proof of which the plaintiff must fail in his suit; Gurdit Singh versus Munsha Singh,
(1977) 1 SCC 791.
Cause of action - “The `cause of action’ means every fact which, if traversed, it would be necessary
for the plaintiff to prove in order to support his right to a judgement of the court”; State of Rajasthan
versus Swaika Properties, (1985) 3 SCC 217.
Cause of action - “Cause of action is a term of varying and doubtful meaning, and because of its
many different and delicate shades of meaning according to the circumstances in which it is used,
the Courts have found it difficult to give any general definition of the term, and perhaps no definition
could be framed which would be entirely free from criticism, although it has been said that there is no
legal expression the meaning of which is more clearly apparent”; Sadhu Singh versus Pritam Singh S/o
Narain Singh, AIR 1976 P&H 38.
Cause of action—a. The expression ‘cause of action’ would mean facts to be proved, if traversed,
in order to support his right to the judgement of the court and that the function of the party is to
present a full picture of the cause of action with such further information so as to make opposite party
understand the case he will have to meet; Ashraf Kokkurversus KV Abdul Khader, Civil Appeal Nos. 69-
70 of 2012.
b. “The expression “cause of action” has acquired a judicially-settled meaning. In the restricted sense
cause of action means the circumstances forming the infraction of the right or the immediate occasion
for the action. In the wider sense, it means the necessary conditions for the maintenance of the

suit, including not only the infraction of the right, but the infraction coupled with the right itself.
Compendiously the expression means every fact which it would be necessary for the plaintiff to prove,
if traversed, in order to support his right to the judgement of the Court; Y Abraham Ajith versus
Inspector of Police, (2004) 8 SCC 100.
c. “The expression “cause of action” is generally understood to mean a situation or state of facts that
entitles a party to maintain an action in a court or a tribunal; a group of operative facts giving rise to
one or more bases for sitting; a factual situation that entitles one person to obtain a remedy in court
from another person; Y Abraham Ajith versusInspector of Police, (2004) 8 SCC 100.
d. “The ‘cause of action’ means every fact which, if traversed, it would be necessary for the plaintiff
to prove in order to support his right to a judgement of the court”; State of Rajasthan versus Swaika
Properties, (1985) 3 SCC 217.
e. “It is well settled that the expression “cause of action” means that bundle of facts which the
petitioner must prove, if traversed, to entitle him to a judgement in his favour by the Court; ONGC
versusUtpal Kumar Basu, (1994) 4 SCC 711.
Mesne profit
The Concept of ‘mesne profits’ has its origin in the mediaeval period. Under the feudal system, the
King owned all land. The King would let out a part of these lands to his barons on the condition that
they would provide him with soldiers whenever he wanted to raise an army. Soon this turned into a
nice way of raising money by charging rent for the land. In turn, the barons would let out part of the
land to tenant farmers and they would pay rent - usually in kind, by providing livestock or crops - for
the privilege of being able to keep some of the produce for themselves. Thus the concept of chains of
tenancies was born. The person to whom they paid rent became known as the ‘mesne landlord’. The
word meant ‘intermediate’ in old French. The phrase was originally ‘mesne rents and profits’ meaning
all the rent or profit from the land that could be extracted by the intermediate landlord. In modern
times the term ‘mesne profits’ means the claim that a lawful owner of the property has against the
unlawful possessor of the property.
The legal position relating to Mesne profits may be defined as the profits or other pecuniary benefits,
which one who disposes the true owner receives between dis-seizin and the restoration of possession.
Therefore mesne profits correspond to the profits which the person in wrongful possession is receiving
or might receive with due diligence for the wrongful occupation of property. Mesne profits are defined
under Section 2(12) of Code of Civil Procedure. Section 2(12) of the Code of Civil Procedure provides
that: “Mesne profits” of property means those profits which the person in wrongful possession of
such property actually received or might with the ordinary diligence have received therefrom, together
with interest on such profits but shall not include profits due to improvement made by the person in
wrongful possession. From the analysis of the above-stated definition one can conclude that “Mesne
profits” are the profits, which the person in wrongful possession actually earned or might have earned
with ordinary diligence. According to Section 2(12) a person becomes entitled to mesne profits only
when he has right to obtain possession but another person whose occupation is unauthorized or
wrongful keeps him deprived of that possession. The first and foremost condition for awarding mesne
profits is wrongful possession of the occupant of the property. The Section further provides that Mesne
profits also include interest on such profits. However, it explicitly excludes any profit earned due to
improvement in the property made by the person in wrongful possession of such property.
Question of profits or mesne profits - It is necessary at the outset to distinguish between three types
of cases in which a question of profits or mesne profits might arise. (1) Suits for ejectment or recovery

of possession of immovable property from a person in possession without title, together with a claim
for past or past and future mesne profits. (2) Suits for partition by one or more tenants-in-common
against others with a claim for account of past or past and future profits. (3) Suits for partition by a
member of a joint Hindu family with a claim for an account from the manager. In the first case, the
possession of the defendants not being lawful, the plaintiff is entitled to recover “mesne profits” as
defined in Section 2, clause (12) of the Civil Procedure Code, such profits being really in the nature
of damages. In the second case, the possession and receipt of profits by the defendant not being
wrongful the plaintiff’s remedy are to have an account of such profits making all just allowance in
favour of the collecting tenant-in-common. In the third case, the plaintiff must take the joint family
property as it exists at date of the demand for partition and is not entitled to open up past accounts
or claim relief on the ground of past inequality of enjoyment of the profit, except where the manager
has been guilty of fraudulent conduct or misappropriation; Subhashini versus S Sankaramma, CRP Nos.
7106, 7107 and 7108 of 2017.
The Principal sum adjudged

Meaning assigned to the expression “the principal sum adjudged” should continue to be assigned to
“principal sum” at such other places in Section 34(1) where the expression has been used qualified by
the adjective “such”, that is to say, as “such principal sum”. Recognition of the method of capitalisation
of interest to make it a part of the principal consistently with the contract between the parties or
established banking practice does not offend the sense of reason, justice and equity; Union of India
versus Association of Unified Telecom Service Providers of India, 2019 (14) SCALE 513: 2019 SCC OnLine
SC 1393.
The word ‘leave’ has various shades of meaning depending upon the context or intent with which it is
used. According to the plain meaning, the word ‘leave’ in relation to an employee, should be construed
to mean where he “voluntarily” leaves i.e., of his own volition, and does not include a case of dismissal.
The word ‘leave’ appears to connect voluntary action, and is synonymous with the word ‘quit’. It does
not refer to the expulsion of an employee by the act of his employer without his consent and against
his remonstrance. That is a meaning in consonance with justice and fair play. It is also the ordinary
plain meaning of the word ‘leave’. In the shorter Oxford English Dictionary, 3rd Edn. Vol. X, page 1192,
the following meaning is given “to depart from; quit; relinquish, to quit the service of a person”;
Superintendence Company of India (P) Ltd. versus Krishan Murgai, AIR 1980 SC 1717: 1980 (3) SCR 1278.
Objective Type Questions

1. From which date Civil Procedure Code, 1908, An Act to consolidate and amend the laws relating
became operative? to the procedure of the Courts of Civil.
(A) 1 January 1908 2. A legal representative under the Code of Civil
(B) 1 April 1908 Procedure means:—
(C) 31 December 1908 (A) a co-sharer of the benefits arising to the
(D) 1 January 1909 parties to the suit
Ans. (D) (B) a person, who in law represents the
Section 1(2), It shall come into force on the first estate of the deceased
day of January, 1909. (C) a relative of parties to the suit
This Code came in force as Act Number 8 of the (D) all of the above
year, 1908. Ans. (B)

Section 2(11), Legal representative means a interested in such right shall, for the purposes
person who in law represents the estate of a of this Section, be deemed to claim under the
deceased person, and includes any person who persons so litigating. [Section 11, Explanation VI]
intermeddles with the estate of the deceased and 6. Under Section 15 of the Code of Civil
where a party sues or is sued in a representative Procedure, every suit shall be instituted in:—
character the person on whom the estate devolves (A) District Court
on the death of the party so suing or sued. (B) The Court of lowest grade
3. Under Civil Procedure Code find the incorrect (C) The Court of highest grade
match:— (D) All of these
(A) Section 5 ............... Revenue Court Ans. (B)
(B) Section 7 ............... Provincial Small Under Section 15 of the Code of Civil Procedure,
Causes Court every suit shall be instituted in the Court of
(C) Section 9 ............... Pecuniary Jurisdiction lowest grade.
of Courts Court in which suits to be instituted.—Every suit
(D) Section 8 .............. Presidency Small shall be instituted in the Court of the lowest
Causes Courts grade competent to try it. (Section 15)
Ans. (C) 7. Objection to the place of suing can be allowed
The pecuniary jurisdiction of the court has been to be taken ...............
dealt in Section 6. (A) any time
Section 6 is related to the pecuniary jurisdiction (B) directly in appeal
of the court. (C) only at the first opportunity in the trial
4. Provisions of Section 10 of CPC are:— court
(A) Directory (D) none of the above
(B) Mandatory Ans. (D)
(C) Non-mandatory Section 21, Objections to jurisdiction.—(1) No
(D) Discretionary objection as to the place of suing shall be allowed
Ans. (B) by any Appellate or Revisional Court unless such
Provisions of Section 10 are mandatory. objection was taken in the Court of first instance
Section 10 of the Civil Procedure Code is related at the earliest possible opportunity and in all
to ‘Stay of suit.’ cases where issues are settled at or before
5. Which of the following provisions of the Code such settlement, and unless there has been a
of Civil Procedure relates to the application of consequent failure of justice.
the doctrine of res judicata in a representative (2) No objection as to the competence of a
suit? Court with reference to the pecuniary limits of
(A) Section 11, Explanation II its jurisdiction shall be allowed by any Appellate
(B) Section 11, Explanation IV or Revisional Court unless such objection was
(C) Section 11, Explanation VI taken in the Court of first instance at the earliest
(D) Section 11, Explanation VIII possible opportunity, and, in all cases where
Ans. (C) issues are settled, at or before such settlement,
Explanation VI of Section 11 relates to the and unless there has been a consequent failure
application of the doctrine of res judicata in a of justice.
representative suit. (3) No objection as to the competence of the
Where persons litigate bona fide in respect of executing Court with reference to the local limits
a public right or of a private right claimed in of its jurisdiction shall be allowed by any Appellate
common for themselves and others, all persons or Revisional Court unless such objection was

taken in the executing Court at the earliest of the decree, shall be determined by the Court
possible opportunity, and unless there has been executing the decree and not by a separate suit.
a consequent failure of justice. 11. Section 75 of C.P.C. deals with:—
8. Which one of the following Sections of the (A) Power to issue summons
C.P.C. deals with the institution of suits? (B) Power to issue commission
(A) Section 29 (C) Right to appeal
(B) Section 13 (D) Res judicata
(C) Section 27 Ans. (B)
(D) Section 26 Section 75 of C.P.C. deals with power to issue
Ans. (D) commission.
Section 26 deals with the institution of suits. Section deals with commission that civil court
Section 26, Institution of suits.—(1) Every suit can issue commission in the following case.
shall be instituted by the presentation of a plaint 12. Before filing a suit against government under
or in such other manner as may be prescribed. Section 80 of CPC it requires a notice to be
(2) In every plaint, facts shall be proved by given to the government of:—
affidavit: (A) 60 days
Provided that such an affidavit shall be in the (B) 30 days
form and manner as prescribed under Order VI (C) 90 days
of rule 15A. (D) 14 days
9. A decree may be executed by:— Ans. (A)
(A) Tehsildar Section 80(1), Save as otherwise provided in sub-
(B) Collector section (2), no suits shall be instituted against
(C) District Judge the Government (including the Government of
(D) Either by the Court which passed it or by the State of Jammu and Kashmir) or against a
which it is sent. public officer in respect of any act purporting
Ans. (D) to be done by such public officer in his official
A decree may be executed either by the Court capacity, until the expiration of two months next
which passed it or by which it is sent. after notice in writing has been delivered.
Section 38, A decree may be executed either by 13. The court under Section 89(1) of CPC can
the Court which passed it, or by the Court to refer the dispute for:—
which it is sent for execution. (A) arbitration or conciliation
10. An Executing Court cannot determine the (B) conciliation or mediation
questions relating to which of the following? (C) mediation or Lok Adalat
(A) Execution of decree (D) arbitration or conciliation or Lok Adalat
(B) Discharge of decree or mediation
(C) Satisfaction of decree Ans. (D)
(D) Modification of decree Section 89(1), Settlement of disputes outside
(E) None of these the Court.—(1) Where it appears to the Court
Ans. (D) that there exist elements of a settlement which
Section 47, Questions to be determined by the may be acceptable to the parties, the Court shall
Court executing decree.—(1) All questions arising formulate the terms of settlement and give them
between the parties to the suit in which the to the parties for their observations and after
decree was passed, or their representatives, and receiving the observations of the parties, the
relating to the execution, discharge or satisfaction Court may reformulate the terms of a possible
settlement and refer the same for:—

(A) arbitration; contained in an Act, Ordinance or Regulation,
(B) conciliation; the determination of which is necessary for the
(C) judicial settlement including settlement disposal of the case, and is of opinion that such
through Lok Adalat: or Act, Ordinance, Regulation or provision is invalid
(D) mediation. or inoperative, but has not been so declared by
14. Right to appeal from original decrees has the High Court to which that Court is subordinate
been provided under:— or by the Supreme Court, the Court shall state
(A) Section 94 of Civil Procedure Code a case setting out its opinion and the reasons
(B) Section 95 of Civil Procedure Code therefor, and refer the same for the opinion of
(C) Section 96 of Civil Procedure Code the High Court.
(D) Section 100 of Civil Procedure Code. 17. Under which of the following circumstances,
Ans. (C) review of judgement may not lie?
Right to appeal from original decrees has been (A) By a decree or order from which an
provided under Section 96. appeal is allowed by this Code, but from
Appeal from original decree.—(1) Save where which no appeal has been preferred
otherwise expressly provided in the body of this (B) By a decree or order from which no
Code or by any other law for the time being in appeal is allowed by this Code
force, an appeal shall lie from every decree passed (C) By a decision on a reference from a court
by any Court exercising original jurisdiction to a small causes
the Court authorized to hear appeals from the (D) Appeal dismissed
decisions of such Court. Ans. (D)
15. Under which Section of the Civil Procedure Section 114, Review.—Subject as aforesaid, any
Code a second appeal can be filed:— person considering himself aggrieved—
(A) Section 99 (a) by a decree or order from which an appeal
(B) Section 99A is allowed by this Code, but from which no
(C) Section 100 appeal has been preferred.
(D) Section 100A (b) by a decree or order from which no appeal is
Ans. (C) allowed by this Code, or
Second appeal can be filed under Section 100. (c) by a decision on a reference from a Court
Second appeal under Section 100 lies on of Small Causes, may apply for a review of
substantial questions of law. judgement to the Court which passed the
Section 100 deals with Second appeal. decree or made the order, and the Court may
16. If court is satisfied that a case pending before make such order thereon as it thinks fit.
it involves a question as to validity of any Act, 18. Once revision is made before the court under
the Court should:— the Code of Civil Procedure, 1908, it:—
(A) Decide the validity of Act (A) acts as a stay on the proceedings
(B) Refer the matter to the High Court (B) acts as a res judicata on the issues
(C) High Court should exercise power to (C) acts as an injunction for immediate relief
revision (D) shall not operate as a stay of suit or
(D) Refer to Supreme Court for advice other proceeding before the court except
Ans. (B) where such suit or proceeding is stayed
Proviso to Section 113, Provided that where the by the court
Court is satisfied that a case pending before Ans. (D)
it involves a question as to the validity of any
Act, Ordinance or Regulation or of any provision

Section 115(3), A revision shall not operate as a (C) Both (A) & (B)
stay of suit or other proceeding before the Court (D) None of the above
except where such suit or other proceeding is Ans. (C)
stayed by the High Court. Inherent powers are Discretion in nature and
19. Under Section 148 of the Civil Procedure Code in addition to the power conferred under the
the Court can enlarge the time not exceeding provision of the code.
in total Section 151, Nothing in this Code shall be deemed
(A) 90 Days to limit or otherwise affect the inherent powers
(B) 60 Days of the court to make such orders as may be
(C) 45 Days necessary for the ends of the justice or to prevent
(D) 30 Days abuse of the process of the court.
Ans. (D) 22. As per Order II, Rule 1, C.P.C., every suit shall
Section 148, Where any period is fixed or granted as far as practicable be framed so as to:—
by the court for the doing of any act prescribed (A) Afford ground for final decision
or allowed by this Code, the court may, in its (B) To prevent further litigation
discretion, from time to time, enlarge such (C) Both (A) and (B)
period, not exceeding thirty days in total even (D) None of the above
though the period originally fixed or granted may Ans. (C)
have expired. Order II, Rule 1 - Frame of the suit.—Every suit
20. When proper Court fees is not paid by the shall as far as practicable be framed so as to
plaintiff, the Court shall:— afford ground for final decision upon the subjects
(A) Reject the plaint in dispute and to prevent further litigation
(B) Shall grant time to the plaintiff to pay concerning them.
deficit Court fees 23. The term ‘acts’ in Order III, Rules 1 and 2 of
(C) The Court shall send a report to the the Civil Procedure Code, 1908 is confined
government only:—
(D) None of the above (A) in respect of acts done by the power-of-
Ans. (B) attorney holder in exercise of the power
Section 149, Power to make up the deficiency of granted by the instrument and would not
court fees.—Where the whole or any part of any include deposing in place and instead of
fee prescribed for any document by the law for the principal
the time being in force relating to court fees has (B) in respect of acts done by the power-of-
not been paid, the Court may, in its discretion, attorney holder in exercise of the power
at any stage, allow the person, by whom such granted by the instrument and includes
fee is payable, to pay the whole or part, as the deposing in place and instead of the
case may be, of such court-fee; and upon such principal
payment the document, in respect of which fee (C) in respect of acts done by the power-of-
is payable, shall have the same force and effect attorney holder in exercise of the power
as if such fee had been paid in the first instance. granted by the instrument but includes
21. Inherent powers under Section 151 of C.P.C. appearance as a witness on behalf of the
are:— party in the capacity of that party
(A) Discretion in nature (D) to deposing in place and instead of the
(B) In addition to the power conferred under principal
the other provision of the Code Ans. (A)

Order III, Rule 1 - Appearances, etc., may be in (2) Every plaint shall comply with the rules
person, by recognized agent or by pleader.— contained in Orders VI and VII, so far as they are
Any appearance, application or act in or to any applicable.
Court, required or authorized by law to be made (3) The plaint shall not be deemed to be
or done by a party in such Court, may, except duly instituted unless it complies with the
where otherwise expressly provided by any law requirements specified in sub-rules (1) and (2).
for the time being in force, be made or done by 25. The pleadings should contain:—
the party in person, or by his recognized agent, or (A) Only facta probanda
by a pleader appearing, applying or acting, as the (B) Only facta probantia
case may be, on his behalf: (C) Facta probanda and facta probantia
Provided that any such appearance shall, if the (D) None of the above
Court so directs, be made by the party in person Ans. (A)
Order III, Rule 2- Recognized agents.—The - The pleadings should contain only facta
recognized agents of parties by whom such probanda and not facta probantia.
appearances, applications and acts may be made Order VI, Rule 2, Pleading to state material facts
or done are— and not evidence.—(1) Every pleading shall contain,
(a) persons holding powers-of-attorney, and contain only a statement in a concise form
authorizing them to make and do such of the material facts on which the party pleading
appearances, applications and acts on relies for his claim or defence as the case may
behalf of such parties; be, but not the evidence by which they are to be
(b) persons carrying on trade or business for proved.
and in the names of parties not resident 26. Order VII, Rule 1 of Civil Procedure Code, 1908
within the local limits of the jurisdiction is related to:—
of the Court within which limits the (A) Pleadings meaning
appearance, application or act is made or (B) Written statement
done, in matters connected with such trade (C) Particulars to be contained to plaint
or business only, where no other agent is (D) None of the above
expressly authorized to make and do such Ans. (C)
appearances, applications and acts. Order VII, Rule 1 is related to Particulars to be
24. Under Civil Procedure Code, 1908 “every suit contained to plaint.
shall be instituted by presenting a plaint The plaint shall contain the following particulars:—
in duplicate to the court or such officer as (a) the name of the Court in which the suit is
it appoints in this behalf.” This is provided brought;
under:— (b) the name, description and place of residence
(A) Section 26 of the plaintiff;
(B) Section 20 (c) the name, description and place of residence
(C) Order III, Rule 1 of the defendant, so far as they can be
(D) Order IV, Rule 1 ascertained;
Ans. (D)
(d) where the plaintiff or the defendant is
Order IV, Rule 1- Suit to be commenced by plaint.—
a minor or a person of unsound mind, a
(1) Every suit shall be instituted by presenting
statement to that effect;
plaint in duplicate to the Court] or such officer as
(e) the facts constituting the cause of action
it appoints in this behalf.
and when it arose;

(f) the facts showing that the Court has aside the dismissal and shall appoint a day for
jurisdiction; proceeding with the suit.
(g) the relief which the plaintiff claims; 28. A holds a decree against B for Rs. 5000. B
(h) where the plaintiff has allowed a set-off holds a decree against A for Rs. 3000. Both
or relinquished a portion of his claim, the A and B apply for execution of decree to a
amount so allowed or relinquished; and Court which has jurisdiction to execute both
decrees. The Court may:—
(i) a statement of the value of the subject-
matter of the suit for the purposes of (A) Allow execution of A’s decree of Rs. 2000
jurisdiction and of court fees, so far as the (B) Simultaneously proceed with execution
case admits. of both decrees
(C) B shall proceed separately with his
27. A fresh suit on the same cause of action is decree.
not barred when:— (D) None of these
(A) The plaint in the earlier suit has been Ans. (A)
rejected under Order VII Rule 11 of the Order VIII, Rule 6, Particulars of set-off to be given
CPC. in written statement.—(1) Where in a suit for the
(B) The earlier suit has been dismissed recovery of money the defendant claims to set-
owing to the failure to take steps for the off against the plaintiff’s demand any ascertained
service of the defendant. sum of money legally recoverable by him from
(C) The earlier suit has been dismissed the plaintiff, not exceeding the pecuniary limits
owing to neither party appearing when of the jurisdiction of the Court, and both parties
the suit is called for hearing. fill the same character as they fill in the plaintiff’s
(D) All of the above. suit, the defendant may, at the first hearing of the
Ans. (D) suit, but not afterwards unless permitted by the
Above stated all statements do not bar a fresh Court, presents a written statement containing
suit on the same cause of action. the particulars of the debt sought to be set-off.
Order VII, Rule 13- Where rejection of plaint does (2) Effect of set-off.—The written statement shall
not preclude presentation of fresh plaint.—The have the same effect as a plaint in a cross-suit
rejection of the plaint on any of the grounds so as to enable the court to pronounce a final
hereinbefore mentioned shall not of its own force judgement in respect both of the original claim
preclude the plaintiff from presenting a fresh and of the set-off: but this shall not affect the
plaint in respect of the same cause of action. lien, upon the amount decreed, of any pleader
Order II, Rule 3- Where neither party appears in respect of the costs payable to him under the
to be dismissed.—Where neither party appears decree.
when the suit is called on for hearing, the court (3) The rules relating to a written statement by a
may make an order that the suit be dismissed. defendant apply to a written statement in answer
Order II, Rule 4- Plaintiff may bring a fresh suit to a claim of set-off.
or Court may restore suit to file.—Where a suit is
29. If after service of summons, the defendant
dismissed under rule 2 or rule 3, the plaintiff may
appears, but does not file the written
(subject to the law of limitation) bring a fresh suit;
statement within the prescribed time and
or he may apply for an order to set the dismissal
right to file written statement is closed:—
aside, and if he satisfies the Court that there was
(A) Court has to proceed against the
sufficient cause for such failure as is referred to
defendant ex parte.
in rule 2, or for his non-appearance, as the case
(B) Court may pronounce judgement against
may be, the Court shall make an order setting
the defendant without requiring evidence
from the plaintiff.
(C) Court has to necessarily require the order setting aside the dismissal upon such terms
plaintiff to prove its case by leading as to costs or otherwise as it thinks fit, and shall
evidence, with the defendant having appoint a day for proceeding with the suit.
no opportunity to cross-examine the (2) No order shall be made under this rule unless
witnesses of the plaintiff. notice of the application has been served on the
(D) Court has to necessarily require the opposite party.
plaintiff to prove its case by leading 31. Provision for setting aside ex parte decree
evidence and provide an opportunity is:—
to the defendant, to cross-examine (A) Order IX, Rule 7
the plaintiff and its witnesses, on his (B) Order IX, Rule 9
defence. (C) Order IX, Rule 13
Ans. (B) (D) Order IX, Rule 8
Order VIII, Rule 10, Procedure when party fails to Ans. (C)
present written statement called for by Court.— An ex parte decree can be set aside under Order
Where any party from whom a written statement IX, Rule 13.
is required under rule 1 or rule 9 fails to present Order IX, Rule 13, Setting aside decree ex parte
the same within the time permitted or fixed by against defendant.—In any case in which a decree
the Court, as the case may be, the Court shall is passed ex parte against a defendant, he may
pronounce judgement against him, or make such apply to the Court by which the decree was passed
order in relation to the suit as it thinks fit and on for an order to set it aside; and if he satisfies the
the pronouncement of such judgement a decree Court that the summons was not duly served, or
shall be drawn up: Provided further that no Court that he was prevented by any sufficient cause
shall make an order to extend the time provided from appearing when the suit was called on for
under Rule 1 of this Order for filing of the written hearing, the Court shall make an order setting
statement aside the decree as against him upon such terms
30. An order of dismissal in default of a suit, for as to costs, payment into Court or otherwise as it
non-appearance of plaintiff or his advocate, thinks fit, and shall appoint a day for proceeding
is:— with the suit.
(A) Appealable. 32. Civil Procedure Code at the first hearing of
(B) Revisable. the suit, the Court must:—
(C) Reviewable. (A) Frame and record issues
(D) Not subject to any of the above. (B) Record the evidence of plaintiff
Ans. (D) (C) Ascertain whether the allegations in the
An order of dismissal in default of a suit, for non- pleadings are admitted or denied
appearance of plaintiff or his advocate, is not (D) All of the above
subject to any of the above stated options. Ans. (C)
Order IX, Rule 9- Decree against plaintiff by At the first hearing of the suit, the Court must
default bars fresh suit.—(1) Where a suit is wholly ascertain whether the allegations in the pleadings
or partly dismissed under rule 8, the plaintiff are admitted or denied.
shall be precluded from bringing a fresh suit in Order X, Rule 1- Ascertainment whether allegations
respect of the same cause of action. But he may in pleadings are admitted or denied.—At the first
apply for an order to set the dismissal aside, and hearing of the suit the Court shall ascertain from
if he satisfies the Court that there was sufficient each party or his pleader whether he admits or
cause for his non-appearance when the suit was denies such allegations of fact as are made in
called on for hearing, the Court shall make an the plaint or written statement (if any) of the

opposite party, and as are not expressly or by exceptions; and in case of refusal or neglect to
necessary implication admitted or denied by the admit, after such notice, the costs of proving
party against whom they are made. The Court any such document shall be paid by the party so
shall record such admissions and denials. neglecting or refusing, whatever the result of the
33. Where an application for leave to deliver suit may be, unless the Court otherwise directs;
interrogatories has been moved along-with and no costs of proving any document shall be
the interrogatories proposed to be delivered allowed unless such notice is given, except where
that application shall be decided as provided the omission to give the notice is, in the opinion
under Order XI, Rule 2 of CPC within:— of the Court, a saving of expense.
(A) 15 days from the date of submission of 35. ‘Issues’ under the Code of Civil Procedure
the application means:—
(B) 10 days from the date of submission of (A) Material proposition of fact affirmed by
the application plaintiff and denied by defendant.
(C) 7 days from the date of submission of (B) Material proposition of fact affirmed by
the application defendant and denied by plaintiff.
(D) No time limit prescribed for the purpose (C) Every proposition of fact or law affirmed
Ans. (C) by one party and denied by the other.
Order XI, Rule 2 - Particular interrogatories to be (D) Material proposition of fact or law
submitted.—On an application for leave to deliver affirmed by one party and denied by the
interrogatories, the particular interrogatories other.
proposed to be delivered shall be submitted to the Ans. (D)
Court 3 [and that court shall decide within seven Order XIV, Rule 1 - Framing of issues.—(1) Issues
days from the day of filing of the said application]. arise when a material proposition of fact or law
In deciding upon such application, the Court shall is affirmed by one party and denied by the other.
take into account any offer, which may be made (2) Material propositions are those propositions
by the party sought to be interrogated to deliver of law or fact which a plaintiff must allege in
particulars, or to make admissions, or to produce order to show a right to sue or a defendant must
documents relating to the matters in question, or allege in order to constitute his defence.
any of them, and leave shall be given as to such (3) Each material proposition affirmed by one
only of the interrogatories submitted as the Court party and denied by the other shall form the
shall consider necessary either for disposing fairly subject of distinct issue.
of the suit or for saving costs. (4) Issues are of two kinds:
34. Under Order XII, Rule 2 of the Code of Civil (A) issues of fact,
Procedure, the time to be given to a party (B) issues of law.
to admit any document when called upon by 36. Which Provision (Order) of Civil Procedure
notice is:— Code deals with summons and attendance
(A) 15 days from the date of service of notice of witnesses?
(B) 10 days from the date of service of notice (A) Order V, CPC
(C) 7 days from the date of service of notice (B) Order X, CPC
(D) 21 days from the date of service of notice (C) Order XVI, CPC
Ans. (C) (D) Order XXI, CPC
Order XII, Rule 2 - Notice to admit documents.— Ans. (C)
Either party may call upon the other party Order XVI deals with Summoning and Attendance
to admit, within seven days from the date of of Witnesses.
service of the notice any document, saving all

Rule 1 provides for List of witnesses and summons (A) Any court may sell the entire estate.
to witnesses. (B) The court can sell only that part which is
37. In a suit, the plaintiff himself wishes to within its jurisdiction
appear as a witness. Without any permission (C) None of the courts can sell any part of
of Court, he may so appear:— the estate
(A) at any time before evidence of the (D) That court can sell the entire estate
plaintiff is oven within whose jurisdiction majority
(B) only before any other witness on behalf portion of the property is situated
of the plaintiff has been examined. Ans. (A)
(C) at any time before evidence of the Order XXI, Rule 3- Lands situated in more than
defendant is over. one jurisdiction.—Where immovable property
(D) at any time before arguments are heard. forms one estate or tenure situated within the
Ans. (B) local limits of the jurisdiction of two or more
Order XVIII, Rule 3A- Party to appear before other Courts, any one of such Courts may attach and
witnesses.—Where a party himself wishes to sell the entire estate or tenure.
appear as a witness, he shall so appear before 40. On receipt of an application for execution
any other witness on his behalf that has been of a decree, if the requirement of Order XXI
examined, unless the Court, for reasons to be Rules 11 to 14 have not been complied with
recorded, permits him to appear as his own the defects are not remedied then:—
witness at a later stage. (A) The Court shall reject the application for
38. Which of the following is true:— execution.
(A) Affidavits can be confined only to (B) Allow the process of the application for
statements of knowledge. execution.
(B) Affidavits can be confined only to (C) (1) or (2) depends upon the facts and
statements of beliefs. circumstances of each case.
(C) Affidavits cannot be confined (D) None of these
to statements of beliefs only on Ans. (A)
interlocutory applications. Order XXI, Rule 17- Procedure on receiving
(D) None of the above application for execution of decree.—(1) On
Ans. (A) receiving an application for the execution of a
Order XIX, Rule 3- Matters to which affidavits decree as provided by rule 11, sub-rule (2), the Court
shall be confined.—(1) Affidavits shall be confined shall ascertain whether such of the requirements
to such facts as the deponent is able of his own of Rules 11 to 14 as may be applicable to the case
knowledge to prove, except on interlocutory have been complied with; and, if they have not
applications, on which statements of his belief been complied with, the Court shall allow the
may be admitted: defect to be remedied then and there or within a
Provided that the grounds thereof are stated. time to be fixed by it.
(2) The costs of every affidavit which shall (1A) If the defect is not so remedied, the Court
unnecessarily set forth matters of hearsay or shall, reject the application:
argumentative matter, or copies of or extracts Provided that where, in the opinion of the Court,
from documents, shall (unless the Court otherwise there is some inaccuracy as to the amount
directs) be paid by the party filing the same. referred to in Clauses (g) and (h) of sub-rule (2)
39. Where immovable property forms one of rule 11, the Court shall, instead of rejecting
estate situate within the local limits of the the application, decide provisionally (without
jurisdiction of two or more courts:— prejudice to the right of the parties to have

the amount finally decided in the course of the (A) By virtue of Rule 92(3) applicant/objector
proceedings) the amount and make an order for would not be barred from bringing a
the execution of the decree for the amount so fresh suit to set aside sale on the same
provisionally decided. ground.
41. Failure of the judgement debtor to file (B) By virtue of Rule 92(3) applicant/objector
affidavit of assets under Order XXI, Rule 41(2) would be barred from bringing a fresh
of the Code of Civil Procedure can result in:— suit to set aside sale on the same ground.
(A) civil imprisonment up to three months (C) By virtue of Rule 92(4) applicant/objector
for the judgement debtor. would be barred from bringing a fresh
(B) civil imprisonment up to six months suit to set aside sale on the same ground.
from the judgement debtor. (D) By virtue of Rule 92(4) applicant/objector
(C) civil imprisonment up to nine months would not be barred from bringing a
from the judgement debtor. fresh suit to set aside sale on the same
(D) imposition of fine on the judgement ground.
debtor of the decretal amount. Ans. (B)
Ans. (A) Order XXI, Rule 92(3).—(3) No suit to set aside an
Order XXI, Rule 41.—(2) Where a decree for the order made under this rule shall be brought by
payment of money has remained unsatisfied for any person against whom such order is made.
a period of thirty days, the Court may, on the 43. A. A judgement against a defendant who
application of the decree-holder and without died after the arguments but before the
prejudice to its power under sub-rule (1), by judgement, is not a nullity.
order require the judgement-debtor or where B. Sending a decree to the collector for
the judgement-debtor is a corporation, any effecting the portion as per the decree is
officer thereof, to make an affidavit stating the called ‘Precept’.
particulars of the assets of the judgement-debtor. Choose the correct option in respect of the
Order XXI, Rule 41.—(3) In case of disobedience above statements.
of any order made under sub-rule (2), the Court (A) A is correct and B is incorrect
making the order, or any Court to which the (B) A is incorrect and B is correct
proceeding is transferred, may direct that the (C) Both are correct
person disobeying the order be detained in the (D) Both are incorrect.
civil prison for a term not exceeding three months Ans. (C)
unless before the expiry of such term the Court Order XXII, Rule 6- No abatement by reason of
directs his release. death after hearing.—Notwithstanding anything
42. Situation: Application was filed under Order contained in the foregoing rules, whether the
XXI, Rule 90 read with Section 47, CPC for cause of action survives or not, there shall be no
setting aside a Court auction sale. Order abatement by reason of the death of either party
dismissing the application was though between the conclusion of the hearing and the
appealable but no appeal was filed and sale pronouncing of the judgement, but judgement
was confirmed under Order XXI, Rule 92(1), may in such case be pronounced notwithstanding
and confirmation of sale was not questioned the death and shall have the same force and
whereby auction purchase attained finality. effect as if it had been pronounced before the
The Supreme Court of India examined this death took place.
situation recently. What was the response of 44. The maxim “Invito beneficium non datur”
the applicant in this matter? Specify out of (The law confers upon a man no rights or
the following options:— benefits which he does not desire) relates to

which of the provisions under the Code of of such subject-matter or such part of the
Civil Procedure, 1908? claim.
(A) Section 26 (5) Nothing in this rule shall be deemed to
(B) Order VI, Rule 1 authorise the Court to permit one of several
(C) Section 148A plaintiffs to abandon a suit or part of a claim
(D) Order XXIII, Rule 1 under sub-rule (1), or to withdraw, under sub-
Ans. (D) rule (3), any suit or part of a claim, without the
Order XXIII, Rule 1- Withdrawal of suit or consent of the other plaintiff.
abandonment of part of claim.—(1) At any time 45. A compromise which is voidable under Indian
after the institution of a suit, the plaintiff may as Contract Act, 1872 shall not be deemed to
against all or any of the defendants abandon his be ...................... within the meaning of Order
suit or abandon a part of his claim: XXIII Rule 3 of Code of Civil Procedure, 1908
Provided that where the plaintiff is a minor or
(A) void
other person to whom the provisions contained
(B) voidable
in rules 1 to 14 of Order XXXII extend, neither the
(C) illegal
suit nor any part of the claim shall be abandoned
(D) lawful
without the leave of the Court.
(E) None of the above
(2) An application for leave under the proviso to
Ans. (D)
sub-rule (1) shall be accompanied by an affidavit
Explanation to Order XXIII, Rule 3- Explanation.—
of the next friend and also, if the minor or such
An agreement or compromise which is void or
other person is represented by a pleader, by a
voidable under the Indian Contract Act, 1872 (9 of
certificate of the pleader to the effect that the
1872), shall not be deemed to be lawful within the
abandonment proposed is, in his opinion, for the
meaning of this rule.
benefit of the minor or such other person.
46. In a suit against the State Government,
(3) Where the Court is satisfied,—
who may sign the plaint on behalf of the
(a) that a suit must fail by reason of some formal
Government?
defect, or
(A) Governor of the State
(b) that there are sufficient grounds for allowing
(B) Chief Minister of the State
the plaintiff to institute a fresh suit for the
(C) Chief Secretary of the State
subject matter of suit or part of a claim, it
(D) A person who by a general or special
may, on such terms as it thinks fit, grant the
order appointed in this behalf by the
plaintiff permission to withdraw from such
Government
suit or such part of the claim with liberty
Ans. (D)
to institute a fresh suit in respect of the
Order XXVII, Rule 1- Suits by or against
subject-matter of such suit or such part of
Government.—In any suit by or against the
the claim.
Government, the plaint or written statement shall
(4) Where the plaintiff— be signed by such person as the Government
(a) abandons any suit or part of claim under may, by general or special order, appoint on this
sub-rule (1), or behalf, and shall be verified by any person whom
(b) withdraws from a suit or part of a claim the Government may so appoint and who is
without the permission referred to in sub- acquainted with the facts of the case.
rule (3), he shall be liable for such costs as ORDER XXVII-A Suits Involving a Substantial
the Court may award and shall be precluded Question of Law as to the Interpretation of the
from instituting any fresh suit in respect Constitution or as to the validity of any Statutory
Instrument

47. An agreement entered into or compromise, guardian so appointed or declared, who desires
on behalf of a minor without the leave of the to be himself appointed in the place of the next
court, under Order XXXII, Rule 7 of CPC is:— friend, the Court shall remove the next friend
(A) Voidable against all the parties other unless it considers, for reasons to be recorded
than the minor by it, that the guardian ought not to be appointed
(B) Valid the next friend of the minor, and shall thereupon
(C) Void appoint the applicant to be next friend in his
(D) Voidable place upon such terms as to the costs already
Ans. (A) incurred in the suit as it thinks fit.
Order XXXII, Rule 7- Agreement or compromise 49. Under …………… redemption of mortgage
by next friend or guardian for the suit.—(1) No can be sought by any one of the legal
next friend or guardian for the suit shall, without representatives after death of mortgagor.
the leave of the Court, expressly recorded in (A) Order XXXIV, Rule 1 CPC
the proceedings, enter into any agreement or (B) Order XXXIII, Rule 1 CPC
compromise on behalf of a minor with reference (C) Order XXXII, Rule 1 CPC
to the suit in which he acts as next friend or (D) Order XXXI, Rule 1 CPC
guardian. (E) Order XXXV, Rule 1 CPC
48. Under Order XXXII, Rule 9 of the Code of Civil Ans. (A)
Procedure, a next friend of a minor can be Order XXXIV, Rule 1- Parties to suits for foreclosure
removed:— sale and redemption.—Subject to the provisions
(A) if he ceases to reside in India during the of this Code, all persons having an interest
pendency of the suit either in the mortgage-security or in the right of
(B) where his interest becomes adverse to redemption shall be joined as parties to any suit
that of the minor relating to the mortgage.
(C) where he does not do his duty Explanation.—A puisne mortgagee may sue
(D) for any of the above reasons. for foreclosure or for sale without making the
Ans. (D) prior mortgagee a party to the suit; and a prior
Order XXXII, Rule 9- Removal of next friend.—(1) mortgagee need not be joined in a suit to redeem
Where the interest of the next friend of a minor a subsequent mortgage
is adverse to that of the minor or where he is 50. Attachment before judgement in a suit
so connected with a defendant whose interest dismissed in default:—
is adverse to that of the minor as to make it (A) Revives automatically on the restoration
unlikely that the minor’s interest will be properly of the suit.
protected by him, or where he does not do his (B) Does not revive automatically on the
duty, or, during the pendency of the suit, ceases restoration of the suit.
to reside within India, or for any other sufficient (C) May or may not revive depending on the
cause, application, may be made on behalf of facts and circumstances of the case
the minor or by a defendant for his removal; and (D) Shall become revived on the Order of the
the Court, if satisfied of the sufficiency of the appellate court
cause assigned, may order the next friend to be Ans. (B)
removed accordingly, and make such other order Order XXXVIII, Rule 11A- Provisions applicable to
as to costs as it thinks fit. attachment.—(2) An attachment made before
(2) Where the next friend is not a guardian judgement in a suit which is dismissed for default
appointed or declared by an authority competent shall not become revived merely by reason of the
in this behalf, and an application is made by a fact that the order for the dismissal of the suit

for default has been set aside and the suit has (A) Delhi H.C. Bar Association versus Union of
been restored. India
51. The Civil Court can grant an injunction (B) Allahabad H.C. Bar Association versus
without issuing notice to the defendant:— Union of India
(A) In all cases. (C) Salem Advocate Bar Association versus
(B) Only if the object of granting injunction Union of India
would be defeated by delay and after (D) P&H H.C. Bar Association versus Union of
recording reasons therefore. India.
(C) If the plaintiff offers some security for Ans. (C)
loss occasioned to the defendant by Case Reference: Salem Advocate Bar Association
such ex parte order. versus Union of India, 2003 (1) SCC 49
(D) In no circumstances. The challenge to the constitutional validity of
Ans. (B) amendments made to the Code of Civil Procedure
Order XXXIX, Rule 3- Before granting injunction, (for short, ‘the Code’) by Amendment Acts of 1999
Court to direct notice to opposite party.—The and 2002.
Court shall in all cases, except where it appears - The Supreme Court upheld the validity of the
that the object of granting the injunction would Code of Civil Procedure Amendment Acts of 1999
be defeated by the delay, before granting an and 2002.
injunction, direct notice of the application for the 54. ‘Even after ex parte proceedings, the
same to be given to the opposite party: defendant can take part in further proceedings
Provided that, where it is proposed to grant an of the suit. This principle was pronounced by
injunction without giving notice of the application Supreme Court in the case of:—
to the opposite party, the Court shall record the (A) State of Bombay versus United Motors
reasons for its opinion that the object of granting (B) State of Rajasthan versus Vidyawati
the injunction would be defeated by delay. (C) Vijay versus RN Gupta Education Society
52. Under which provision of the Code of Civil (D) Arjun Singh versus Mohindra Kumar
Procedure, 1908, the Collector may be Ans. (D)
appointed as receiver? ‘Even after ex parte proceedings, the defendant
(A) Order XL, Rule 1 can take part in further proceedings of the suit.
(B) Order XL, Rule 3 This principle was pronounced by the Supreme
(C) Order XL, Rule 5 Court in the case of Arjun Singh versus Mohindra
(D) Order XL, Rule 2. Kumar, AIR 1964 SC 993.
Ans. (C) 55. That a petition dismissed under Article 226
Order XL Rule 5, Where the property is land paying would operate as res judicata so as to bar a
revenue to the Government, or land of which the similar petition in the Supreme Court under
revenue has been assigned or redeemed, and Article 32 of the Constitution was held in the
the Court considers that the interests of those case of;—
concerned will be promoted by the management (A) Daryao versus State of UP
of the Collector, the Court may, with the consent (B) Arjun Singh versus State of MP
of the Collector, appoint him to be receiver of (C) Sudhir Chandra versus State of WB
such property. (D) None of the above
53. In which of the following cases, did the Ans. (A)
Supreme Court uphold the validity of the Case Reference: Daryao versus State of UP, AIR
Code of Civil Procedure Amendment Acts of 1961 SC 1457
1999 and 2002?

The next question to consider is whether it makes application tinder Article 32. The scope of the
any difference to the application of this rule that writs, orders or directions which the High Court
the decision on which the plea of res judicata can issue in appropriate cases under Article 226
is raised is a decision not of this Court but of a is concurrent with the scope of similar writs,
High Court exercising its jurisdiction under Article orders or directions which may be issued by this
226. The argument is that one of the essential Court under Article 32. The cause of action for
requirements of Section 11 of the Code of Civil, the two applications would be the same. It is the
Procedure is that the Court which tries the first assertion of the existence of a fundamental right
suit or proceeding should be competent to try and its illegal contravention in both cases and
the second suit or proceeding, and since the High the relief claimed in both the cases is also of the
Court cannot, entertain an application under same character. Article 226 confers jurisdiction
Article 32 its decision cannot be treated as res of the High Court to entertain a suitable writ
judicata for the purpose of such a petition. It is petition, whereas Article 32 provides for moving
doubtful if the technical requirement prescribed this Court for a similar writ petition for the same
by Section 11 as to the Competence of the first purpose. Therefore, the argument that a petition
Court to try the subsequent suit is an essential under Article 32 cannot be entertained by a High
part of the general rule of res judicata; but Court under Article 226 is without any substance;
assuming that it is, in substance even the said and so the plea that the judgement of the High
test is satisfied because the jurisdiction of the Court cannot be treated as res judicata on the
High Court in dealing with a writ petition filed ground that it cannot entertain a petition under
under Article 226 is substantially the same as Article 32 must be rejected.
the jurisdiction of this Court in entertaining an
Previous Years Questions

56. Under Civil Procedure Code, which of the determination of any question within Section 144,
following statements are true regarding a but shall not include—
decree? (a) any adjudication from which an appeal lies
[MPJS Class-2 (Pre.), 2013 (Shift - II)] as an appeal from an order, or
(A) Conclusively determines the rights of (b) any order of dismissal for default.
parties with regard to all or any of the Explanation.—A decree is preliminary when
matters in controversy in the suit further proceedings have to be taken before the
(B) Decree can be partly preliminary and suit can be completely disposed of. It is final
partly final when such adjudication completely disposes of
(C) This would not include any adjudication the suit. It may be partly preliminary and partly
from which an appeal lies as an appeal final.
from an order
57. Mesne profit means:—
(D) All of them
[Karnataka CJ (Pre.), 2012]
Ans. (D)
(A) profit earned by mission
Section 2(2), Decree means the formal expression
(B) very minimum profit
of an adjudication which, so far as regards the
(C) profit received or could have been
Court expressing it, conclusively determines the
received by a person in wrongful
rights of the parties with regard to all or any of
possession of property
the matters in controversy in the suit and may
(D) none of the above
be either preliminary or final. It shall be deemed
Ans. (C)
to include the rejection of a plaint and the

Section 2(12), “Mesne profits” of property means (D) That the previous suit is pending in a
those profits which the person in wrongful Foreign Court
possession of such property actually received Ans. (D)
or might with ordinary diligence have received Essentials conditions for stay of suit are:—
therefrom, together with interest on such profits, That the matter in the issue in the suit is directly
but shall not include profits due to improvements and substantially is in issue in the first suit.
made by the person in wrongful possession. That the parties in the second suit are the same.
58. Whether the court can, without exception, That the court in which the suit is instituted
try all suits of civil nature? is competent to grant the relief claimed in the
[Maharashtra (Pre.), 2010] subsequent suit.
(A) No Section 10, No Court shall proceed with the trial
(B) Yes of any suit in which the matter in issue is also
(C) May be directly and substantially in issue in a previously
(D) None of the above instituted suit between the same parties, or
Ans. (A) between parties under whom they or any of
No. them claim litigating under the same title where
Section 9, Courts to try all civil suits unless such suit is pending in the same or any other
barred.—The Courts shall (subject to the Court in India have jurisdiction to grant the relief
provisions herein contained) have jurisdiction claimed, or in any Court beyond the limits of
to try all suits of a civil nature accepting suits India established or continued by the Central
of which their cognizance is either expressly or Government and having like jurisdiction, or before
impliedly barred. the Supreme Court.
Explanation I.—A suit in which the right to Explanation.—The pendency of a suit in a foreign
property or to an office is contested is a suit of a Court does not preclude the Courts in India from
civil nature, notwithstanding that such right may trying a suit founded on the same cause of action.
depend entirely on the decision of questions as 60. A compromise decree:—
to religious rites or ceremonies. [DJS Set-A (Pre.), 2019]
Explanation II.—For the purposes of this Section, (A) Operates as res judicata between parties
it is immaterial whether or not any fees are to the compromise
attached to the office referred to in Explanation (B) Does not operate as res judicata
I or whether or not such office is attached to a (C) (A) or (B) depending upon the facts and
particular place. circumstances of each case.
59. Under the principle of sub-judice, which of (D) (A) or (B) depending on the discretion of
the following is not an essential condition for the court.
stay of suit? Ans. (A)
[MPJS (Pre.). 2011] A compromise decree operates as res judicata
(A) That the matter in the issue in the suit between parties to the compromise.
is directly and substantially is in issue in 61. Where may suit for partition of immovable
the first suit property be instituted?
(B) That the parties in the second suit are [MPJS (Pre.), 2012]
the same (A) Where subject matter or property is
(C) That the court in which the suit in situated
instituted is competent to grant the (B) Where defendant actually and voluntarily
relief claimed in the subsequent suit resides

(C) Where defendant carries on business Section 21, Objections to jurisdiction.—(1) No
(D) Where defendant works for gain objection as to the place of suing shall be allowed
Ans. (A) by any Appellate or Revisional Court unless such
Section 16, Suits to be instituted where subject- objection was taken in the Court of first instance
matter situate.—Subject to the pecuniary or other at the earliest possible opportunity and in all
limitations prescribed by any law, suits— cases where issues are settled at or before
(a) for the recovery of immovable property with such settlement, and unless there has been a
or without rent or profits, consequent failure of justice.
(b) for the partition of immovable property, 63. Under Section 26 of the Civil Procedure Code,
(c) for foreclosure, sale or redemption in 1908, in every plaint, facts should be proved
the case of a mortgage of or charge upon by:—
immovable property, [Uttar Pradesh (Pre.), 2016]
(d) for the determination of any other right to or (A) affidavit
interest in immovable property, (B) oral evidence
(C) document
(e) for compensation for wrong to immovable
(D) examination of plaintiff
property,
Ans. (A)
(f) for the recovery of movable property Section 26, Institution of suits.—(2) In every
actually under distraint or attachment, shall plaint, facts shall be proved by affidavit:
be instituted in the Court within the local Provided that such an affidavit shall be in the
limits of whose jurisdiction the property is form and manner as prescribed under Order VI
situated. of rule 15A.
Provided that a suit to obtain relief respecting, or 64. Provision relating to ‘Precept’ is provided in
compensation for wrong to, immovable property Civil Procedure Code under:—
held by or on behalf of the defendant may, where
[Uttarakhand JS (Pre.), 2016]
the relief sought can be entirely obtained through
(A) Section 40
his personal obedience, be instituted either in the
(B) Section 44A
Court within the local limits of whose jurisdiction
(C) Section 45
the property is situate, or in the Court within the
(D) Section 46
local limits of whose jurisdiction the defendant
Ans. (D)
actually and voluntarily resides, or carries on Section 46, Precepts.—(1) Upon the application
business, or personally works for gain.
of the decree-holder the Court which passed the
Explanation.—In this Section “property” means
decree may whenever it thinks fit, issue a precept
property situated in India.
to any other Court which would be competent
62. Objection as to local or pecuniary jurisdiction to execute such decree to attach any property
shall be raised at the first available belonging to the judgement-debtor and specified
opportunity according to Civil Procedure in the precept.
Code, 1908 under:— (2) The Court to which a precept is sent shall
[Uttarakhand JS (Pre.), 2017] proceed to attach the property in the manner
(A) Section 20 prescribed in regard to the attachment of property
(B) Section 21 in execution of a decree:
(C) Section 22 Provided that no attachment under a precept
(D) Section 24 shall continue for more than two months unless
Ans. (B) the period of attachment is extended by an order
of the Court which passed the decree or unless

before the determination of such attachment as may be prescribed, the Court may issue a
the decree has been transferred to the Court by commission—
which the attachment has been made and the (a) to examine any person;
decree-holder has applied for an order for the (b) to make a local investigation;
sale of such property.
(c) to examine or adjust accounts; or
65. Where the decree is for the partition of an
(d) to make a partition;
undivided estate assessed to the payment of
(e) to hold a scientific, technical, or expert
revenue to the government, the partition of
investigation;
revenue to the government, the partition of
the estate, in accordance with the law for (f) to conduct sale of property which is subject
the time being in force, shall be made by:— to speedy and natural decay and which is
[MPJS (Pre.), 2015] in the custody of the Court pending the
(A) The Patwari determination of the suit;
(B) The Nazir (g) to perform any ministerial act.
(C) The Collector
67. For non-compliance of Section 80 of the
(D) The Commissioner appointed by the CPC:—
court
[DJS Set-A (Pre.), 2018-2019]
Ans. (C)
(A) The suit is to be dismissed on the very
Section 54, Partition of estate or separation of
first day.
share.—Where the decree is for the partition of
(B) The suit is to be admitted but summons
an undivided estate assessed to the payment of
have to be issued on a date after two
revenue to the Government, or for the separate
months.
possession of a share of such an estate, the
(C) The plaint is to be returned.
partition of the estate or the separation of the
(D) Costs have to be imposed.
share shall be made by the Collector or any
Ans. (C)
gazetted subordinate of the Collector deputed by
Section 80(2), A suit to obtain an urgent or
him in this behalf, in accordance with the law (if
immediate relief against the Government
any) for the time being in force relating to the
(including the Government of the State of Jammu
partition, or the separate possession shares, of
and Kashmir) or any public officer in respect of
such estates.
any act purporting to be done by such public
66. Under Civil Procedure Code, a Court may not officer in his official capacity, may be instituted,
issue a commission:— with the leave of the Court, without serving any
[MPJS (Pre.), 2016] notice as required by sub-section (I); but the
(A) For elucidating any matter in dispute Court shall not grant relief in the suit, whether
(B) For ascertaining the market value of any interim or otherwise, except after giving to the
property Government or public officer, as the case may
(C) For assessing the amount of any mesne be, a reasonable opportunity of showing cause in
profits or damages respect of the relief prayed for in the suit:
(D) For framing of issue Provided that the Court shall, if it is satisfied, after
Ans. (D) hearing the parties, that no urgent or immediate
Court may not issue a commission for framing of relief need be granted in the suit, return the
the issue. plaint for presentation to it after complying with
Section 75, Power of Court to issue commissions.— the requirements of sub-section (1).
Subject to such conditions and limitations 68. Section 89 of the CPC was inserted in:—
[Odisha JS (Pre.), 2011]

(A) 1993 been caused to such persons by reason of
(B) 1998 such public nuisance or other wrongful act.
(C) 1999
70. Which one of the following combinations is
(D) 2009
mismatched under the Civil Procedure Code?
Ans. (C)
[Uttarakhand JS (Pre.), 2016]
Section 89 was inserted by Act 46 of 1999, s. 7
(A) Temporary Injunction – Order XXXIX
(w.e.f. 1-7-2002), earlier rep. by Act 10 of 1940, s.
(B) Right to Lodge a Caveat – Section 148A
49 and the Third Schedule.
(C) Suit by Pauper – Order XXXIII
Section 89(1), Settlement of disputes outside
(D) Powers of Appellate Court – Section 102
the Court.—(1) Where it appears to the Court
Ans. (D)
that there exist elements of a settlement which
Section 102 provides No second appeal in certain
may be acceptable to the parties, the Court shall
cases.
formulate the terms of settlement and give them
No second appeal shall lie from any decree,
to the parties for their observations and after
when the subject matter of the original suit is
receiving the observations of the parties, the
for recovery of money not exceeding twenty-five
Court may reformulate the terms of a possible
thousand rupees. (Section 102)
settlement and refer the same for:—
Section 107 deals with Powers of Appellate Court.
(a) arbitration;
71. Under Section 114 of the Code of Civil
(b) conciliation;
Procedure, 1908, any person considering
(c) judicial settlement including settlement himself aggrieved by a decree or order may
through Lok Adalat: or apply for ....................
(d) mediation. [PJS (Pre.), 2015]
69. In the case of a public nuisance, a suit for (A) Review
declaration and injunction may be instituted (B) Revision
by; (C) Reference
(D) None of the above
[MPJS (Pre.), 2015]
Ans. (A)
(A) Two persons, with the leave of the Court
Any person considering himself aggrieved by a
(B) Two persons, having obtained oral
decree or order may apply for review u/s 114 of
consent of the Advocate General
(C) Two persons, having obtained the written the Code of 1908.
consent of the Advocate General 72. The authority to annul, alter or add to the
(D) Two persons, without the leave of the rules in the First Schedule of the Code of
Court Civil Procedure rests with the;
Ans. (A) [HJS (Pre.), 2013]
Section 91, Public nuisances and other wrongful (A) High Court
acts affecting the public.—(1) in the case of a (B) State Government
public nuisance or other wrongful act affecting, or (C) Supreme Court with the previous approval
likely to affect, the public, a suit for a declaration of rules by the Central Government
and injunction or for such other relief as may be (D) High Court with the previous approval of
appropriate in the circumstances of the case, rules by the State Government
may be instituted,— Ans. (D)
(a) by the Advocate General, or Section 121, Effect of rules in First Schedule.—The
(b) with the leave of the Court, by two or more rules in a First Schedule shall have effect as if
persons, even though no special damage has enacted in the body of this Code until annulled

or altered in accordance with the provisions of (a) any right to relief in respect of, or arising
this Part. out of, the same act or transaction or series
Section 122, Power of certain High Courts to of acts or transactions is alleged to exist in
make rules.—High Courts not being the Court of such persons, whether jointly, severally or in
a Judicial Commissioner may, from time to time the alternative; and
after previous publication, make rules regulating (b) if such persons brought separate suits, any
their own procedure and the procedure of the common question of law or fact would arise.
Civil Courts subjects to their superintendence,
75. A necessary party is one in whose:—
and may by such rules annul, alter or add to all or
[HJS (Pre.), 2010]
any of the rules in the First Schedule.
(A) absence no order can be made effectively
Section 124, Committee to report to the High
(B) absence an order can be made but whose
Court.—Every Rule Committee shall make a report
presence is necessary for the complete
to the High Court established at the town at
decision of the case
which it is constituted on any proposal to annul,
(C) only (B) is correct
alter or add to the rules in the First Schedule or
(D) none of above
to make new rules, and before making any rules
Ans. (A)
under Section 122 the High Court shall take such
Order I, Rule 9- Misjoinder and non-joinder.—No
report into consideration.
suit shall be defeated by reason of the Mis-joinder
73. Under Section 151 of Civil Procedure Code,
or non-joinder of parties, and the Court may in
inherent powers can be exercised by the:—
every suit deal with the matter in controversy
[MPJS Class-2 (Pre.), 2013 (Shift – I)]
so far as regards the rights and interests of the
(A) Supreme Court
parties actually before it:
(B) High Court
Provided that nothing in this rule shall apply to
(C) District Court
non-joinder of a necessary party.
(D) Any Court
76. Which provision of the Code deals with
Ans. (D)
joinder of causes of action:—
Section 151, Saving of inherent powers of the
[MPJS (Pre.), 2010]
code.—Nothing in this Code shall be deemed to
(A) Order II, Rule 3
limit or otherwise affect the inherent powers
(B) Order II, Rule 2
of the court to make such orders as may be
(C) Order II, Rule 1
necessary for the ends of the justice or to prevent
(D) Order I, Rule 2
abuse of the process of the court.
Ans. (A)
74. Several persons can be joined as plaintiffs, in
Order II, Rule 3- Joinder of causes of action.—(1)
cases:—
Save as otherwise provided, a plaintiff may unite
[HJS (Pre.), 2010]
in the same suit several causes of action against
(A) where right arises out of the same act, in
the same defendant, or the same defendants
favour of such person
jointly; and any plaintiffs having causes of action
(B) where any common question of law is
in which they are jointly interested against the
involved
same defendant or the same defendants jointly
(C) both (A) and (B)
may unite such causes of action in the same suit.
(D) none of the above
(2) Where causes of action are united, the
Ans. (C)
jurisdiction of the Court as regards the suit shall
Order I, Rule 1- Who may be joined as plaintiffs.—
depend on the amount or value of the aggregate
All persons may be joined in one suit as plaintiffs
subject-matters at the date of instituting the suit.
where—

77. Order V of C.P.C. provides for:— (4) If such summons, when tendered, is refused
[PJS (Pre.), 2013] or if the person served refuses to sign an
(A) Issue and Service of Summons acknowledgment of service or for any reason
(B) Institution of Suits such summons cannot be served personally, the
(C) Pleadings Generally Court shall, on the application of the party, re-
(D) Admissions issue such summons to be served by the Court in
Ans. (A) the same manner as a summons to a defendant.
Order V of C.P.C. provides for Issue and Service of 79. Order VI, Rule 16, CPC empowers the court, at
Summons. any stage of the pleadings to strike out any
Order V, Rule 1, When a suit has been duly matter contained in it:—
instituted, a summons may be issued to the [HJS (Pre.), 2018]
defendant to appear and answer the claim and (A) If it is unnecessary, scandalous, frivolous
to file the written statement of his defence, if or vexatious
any, within thirty days from the date of service of (B) If it tends to prejudice, embarrass or
summons on that defendant. delay the fair trial of suit
78. “Dasti” Summons for Service on the defendant (C) If it is an abuse of the process of the
can be given to the plaintiff under:— court
[Uttar Pradesh (Pre.), 2018] (D) All of the above
(A) Order V, Rule 9A, C.P.C. Ans. (D)
(B) Order V, Rule 9, C.P.C. Order VI, Rule 16, Striking out pleadings.—The
(C) Order IV, Rule 7, C.P.C. Court may at any stage of the proceedings order
(D) Order VI, Rule 6, C.P.C. to be struck out or amended any matter in any
Ans. (A) pleading—
“Dasti” Summons for Service on the defendant (a) which may be unnecessary, scandalous,
can be given to the plaintiff under Order V, Rule frivolous or vexatious, of
9A. (b) which may tend to prejudice, embarrass or
Order V, Rule 9A, Summons given to the plaintiff delay the fair trail of the suit, or
for service.—(1) The Court may, in addition to (c) which is otherwise an abuse of the process
the service of summons under rule 9, on the of the Court.
application of the plaintiff for the issue of a
summons for the appearance of the defendant, 80. A plaint shall be rejected …………
permit such plaintiff to effect service of such [Assam JS, Grade-3 (Pre.), 2012]
summons on such defendant and shall, in such (A) If it does not disclose a cause of action
a case, deliver the summons to such plaintiff for (B) If it is filed in the wrong court
service. (C) If proper parties are not added
(2) The service of such summons shall be affected (D) None of the above
by or on behalf of such plaintiff by delivering or Ans. (A)
tendering to the defendant personally a copy Order VII Rule 11, Rejection of plaint.—The plaint
thereof signed by the Judge or such officer of the shall be rejected:—(a) where it does not disclose
Court as he may appoint in this behalf and sealed a cause of action.
with the seal of the Court or by such mode of 81. The defendant shall present his written
service as is referred to in sub-rule (3) of rule 9. statement within ………. days from the service
(3) The provisions of rules 16 and 18 shall apply of summons upon him.
to a summons personally served under this rule [Maharashtra CJ Junior Division and
as if the person effecting service, were a serving JM (Pre.), 2012]
officer.

(A) 90 (A) shall pronounce judgement under Order
(B) 120 VIII Rule 10 CPC.
(C) 30 (B) may either require the Plaintiff to prove
(D) 60 its case by leading evidence or pronounce
Ans. (C) judgement against the defendant
Order VIII, Rule 1, Written Statement- The depending upon the nature of the case
Defendant shall, within thirty days from the date (C) shall necessarily require the Plaintiff to
of service of summons on him, present a written prove its case by leading evidence.
statement of his defence: (D) Direct personal appearance of the
Provided that where the defendant fails to file Defendant.
the written statement within the said period of Ans. (B)
thirty days, he shall be allowed to file the same Order IX, Rule 6(1)(a) - Procedure when only
on such other day, as may be specified by the plaintiff appears.—(1) Where the plaintiff appears
Court, for reasons to be recorded in writing, but and the defendant does not appear when the suit
which shall not be later than ninety days from the is called on for hearing, then—
date of service of summons. (a) When summons are duly served- if it is
82. Subsequent to the filing of written statement proved that the summons was duly served,
under Order VIII, Rule 9 of the Civil Procedure the Court may make an order that the suit
Code, 1908, the defendant:— shall be heard ex parte.
[HPJS (Pre.), 2018] 84. If due to default of appearance of the plaintiff
(A) Can file the proceedings by way of a suit has been dismissed then:—
defence of set-off or counter-claim [DJS Set-A (Pre.), 2018-2019]
without the leave of the court (A) The plaintiff cannot file a new suit for
(B) Can file the proceedings by way of the same claim.
defence of set-off or counter-claim only (B) The plaintiff can file a new suit for the
with the leave of the court same claim.
(C) Cannot file the proceedings by way of (C) The plaintiff can file a new suit for the
defence of set-off or counter-claim at all same claim but only after satisfying the
(D) Can do as in both (A) and (B) court that there was sufficient cause for
Ans. (B) non-appearance when the earlier suit
Order VIII, Rule 9, Subsequent pleadings.—No was dismissed.
pleading subsequent to the written statement of (D) The plaintiff can file a new suit for the
a defendant other than by way of defence to set- same claim but only after depositing
off or counter-claim shall be presented except costs of the earlier suit as may be
by the leave of the Court and upon such terms determined in the subsequent suit.
as the Court thinks fit; but the Court may at any Ans. (A)
time require a written statement or additional Order IX, Rule 9- Decree against plaintiff by
written statement from any of the parties and fix default bars fresh suit.—(1) Where a suit is wholly
a time of not more than thirty days for presenting or partly dismissed under rule 8, the plaintiff
the same. shall be precluded from bringing a fresh suit in
83. When the Plaintiff appears and Defendant respect of the same cause of action. But he may
fails to file written statement despite service, apply for an order to set the dismissal aside, and
the Court:— if he satisfies the Court that there was sufficient
[DJS Set-A (Pre.), 2019] 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 has withdrawn the appeal, no application shall
as to costs or otherwise as it thinks fit, and shall lie under this rule for setting aside that ex parte
appoint a day for proceeding with the suit. decree.
(2) No order shall be made under this rule unless 86. The Court, at the first hearing of the suit:—
notice of the application has been served on the [DJS Set-A (Pre.), 2019]
opposite party. (A) can only frame issues.
85. Where the appeal prepared against a decree (B) may permit cross examination of either
passed ex parte has been withdrawn, an party by the other.
application under Order IX Rule 13 of the CPC (C) to elucidate the matters in controversy
shall:— in the suit, may examine either of the
[DJS Set-A (Pre.), 2018-2019] parties.
(A) Lie. (D) None of these
(B) Not Lie. Ans. (C)
(C) Lie only with the permission of the The Court, at the first hearing of the suit
Appellate Court. elucidates the matters in controversy in the suit,
(D) Be referred for opinion of the Appellate may examine either of the parties.
Court. Order X, Rule 1- Ascertainment whether allegations
Ans. (A) in pleadings are admitted or denied.—At the first
Order IX, Rule 13, Setting aside decree ex parte hearing of the suit the Court shall ascertain from
against defendant.—In any case in which a decree each party or his pleader whether he admits or
is passed ex parte against a defendant, he may denies such allegations of fact as are made in
apply to the Court by which the decree was passed the plaint or written statement (if any) of the
for an order to set it aside; and if he satisfies the opposite party, and as are not expressly or by
Court that the summons was not duly served, or necessary implication admitted or denied by the
that he was prevented by any sufficient cause party against whom they are made. The Court
from appearing when the suit was called on for shall record such admissions and denials.
hearing, the Court shall make an order setting 87. Interrogatories shall be answered under
aside the decree as against him upon such terms Code of Civil Procedure by way of affidavit to
as to costs, payment into Court or otherwise as it be filed within ............... days or within such
thinks fit, and shall appoint a day for proceeding other time as the Court may allow.
with the suit: [PJS (Pre.), 2017]
Provided that where the decree is of such a (A) 30
nature that it cannot be set aside as against such (B) 20
defendant only it may be set aside as against all (C) 10
or any of the other defendants also: (D) 45
Provided further than no Court shall set aside a (E) None of these
decree passed ex parte merely on the ground that Ans. (C)
there has been an irregularity in the service of Order XI, Rule 8- Affidavit in answer, filing.—
summons, if it is satisfied that the defendant had Interrogatories shall be answered by affidavit to
notice of the date of hearing and had sufficient be filed within ten days or within such other time
time to appear and answer the plaintiff’s claim. as the Court may allow.
Explanation.—Where there has been an appeal
88. X files a suit against his sister Y seeking
against a decree passed ex parte under this rule,
partition of properties of their parents. Y in
and the appeal has been disposed of on any
her written statement admits the shares of X
ground other than the ground that the appellant

and Y in the properties as pleaded by X. The (4) Issues are of two kinds:
Court should:— (a) issues of fact,
[DJS Set-A (Pre.), 2018-2019] (b) issues of law.
(A) Frame issues and direct evidence to be (5) At the first hearing of the suit the Court
led. shall, after reading the plaint and the written
(B) Direct admission/denial of documents. statements if any, and after examination under
(C) Pass judgement forthwith. rule 2 of Order X and after hearing the parties
(D) Direct the parties to enter into or their pleaders, ascertain upon what material
compromise. propositions of fact or of law the parties are at
Ans. (C) variance, and shall thereupon proceed to frame
Order XII, Rule 6- Judgement on admissions.—(1) and record the issues on which the right decision
Where admissions of fact have been made either of the case appears to depend.
in the pleading or otherwise, whether orally or in (6) Nothing in this rule requires the Court to
writing, the Court may at any stage of the suit, frame and record issues where the defendant at
either on the application of any party or of its own the first hearing of the suit makes no defence.
motion and without waiting for the determination
90. In a non-commercial suit when issues both
of any other question between the parties, make
of fact and law arise and the Court is of the
such order or give such judgement as it may think
opinion that the suit may be disposed of on
fit, having regard to such admissions
an issue of law only, the Court can—
89. A files a suit for partition in the High Court of
[DJS Set-A (Pre.), 2019]
Delhi against her brother B. B relies upon a
(A) Frame issues of law and facts and
Will executed by his father bequeathing the
adjudicate the issues of law as
entire estate in his favour.
preliminary issues
[DJS Set-A (Pre.), 2019] (B) Frame issues both of fact and law and
(A) B has to file a counter claim seeking decide all issues together.
probate of the Will. (C) Frame issues only on the issues of law
(B) An issue will be framed as to the and postpone the settlement of other
genuineness and validity of the Will, issues.
which B can establish without seeking (D) Both (A) and (C)
probate. Ans. (D)
(C) B has to necessarily file a separate Order XIV, Rule 2- Court to pronounce judgement
probate petition. on all issues.—(1) Notwithstanding that a case
(D) The suit for partition will be stayed until may be disposed of on a preliminary issue, the
B obtains a probate. Court shall, subject to the provisions of sub-rule
Ans. (B) (2), pronounce judgement on all issues.
Order XIV, Rule 1- Framing of issues.—(1) Issues (2) Where issues both of law and of fact arise in
arise when a material proposition of fact or law the same suit, and the Court is of opinion that
is affirmed by one party and denied by the other. the case or any part thereof may be disposed of
(2) Material propositions are those propositions on an issue of law only, it may try that issue first
of law or fact which a plaintiff must allege in if the issue relates to—
order to show a right to sue or a defendant must (a) the jurisdiction of the Court, or
allege in order to constitute his defence.
(b) a bar to the suit created by any law for the
(3) Each material proposition affirmed by one
time being in force, and for that purpose
party and denied by the other shall form the
may, if it thinks fit, postpone the settlement
subject of distinct issue.
of the other issues until after that issue has

been determined, and may deal with the (3) The evidence so taken shall be read over to
suit in accordance with the decision on that the witness, and, if he admits it to be correct,
issue. shall be signed by him, and the Judge shall, if
necessary, correct the same, and shall sign it,
91. Hearing of the suit and examination of
and it may then be read at any hearing of the suit.
witnesses is covered under Order ............. of
the Code of Civil Procedure, 1908:— 93. Within how much time from the date on
[PJS (Pre.), 2015] which hearing of the Civil Suit is concluded,
(A) XVIII shall the court pronounce its judgement?
(B) XX [Gujarat JS (Pre.), 2019]
(C) XVI (A) thirty days
(D) None of the above (B) sixty days
Ans. (A) (C) ninety days
Order XVIII deals with Hearing of the suit and (D) any time.
examination of witnesses. Ans. (A)
Order XX, Rule 1- Judgement when pronounced.—
92. Examination de bene esse, under Order XVIII,
(1) The Court, after the case has been heard, shall
Rule 16 Code of Civil Procedure means:—
pronounce judgement in an open Court, either at
[PJS (Pre.), 2017]
once, or as soon thereafter as may be practicable
(A) Examination of a witness before the
and when the judgement is to be pronounced on
hearing
some future day, the Court shall fix a day for that
(B) Examination of a witness after the
purpose, of which due notice shall be given to the
hearing
parties or their pleaders:
(C) The court may at any stage of a suit
Provided that where the judgement is not
make local inspection and make a
pronounced at once, every endeavour shall be
memorandum of any relevant fact
made by the Court to pronounce the judgement
(D) Witness disabled by any reasons
within thirty days from the date on which the
authorizes other person acquainted with
hearing of the case was concluded but, where it
facts to depose on his behalf
is not practicable so to do on the ground of the
(E) None of these
exceptional and extraordinary circumstances of
Ans. (A)
the case, the Court shall fix a future day for the
Examination de bene esse, under Order XVIII, Rule
pronouncement of the judgement, and such day
16 Code of Civil Procedure means Examination of
shall not ordinarily be a day beyond sixty days
a witness before the hearing.
from the date on which the hearing of the case
Order XVIII, Rule 16- Power to examine witness
was concluded, and due notice of the day so fixed
immediately.—(1) Where a witness is about to
shall be given to the parties or their pleaders.
leave the jurisdiction of the Court, or other
sufficient cause is shown to the satisfaction 94. Preliminary Decree can be passed in a suit:—
of the Court why his evidence should be taken [DJS (Pre.), 2015]
immediately, the Court may, upon the application (A) for partition
of any party or of the witness, at any time after (B) for partnership
the institution of the suit, take the evidence of (C) for possession and mesne profit
such witness in manner hereinbefore provided. (D) All these
(2) Where such evidence is not taken forthwith Ans. (D)
and in the presence of the parties, such notice Preliminary Decree can be passed in a suit for
as the Court thinks sufficient, of the day fixed for partition, partnership and for possession and
the examination, shall be given to the parties. mesne profit.

95. A decree for injunction if not obeyed:— any Court to which the proceeding is transferred,
[MPJS Class-2 Entry Level (Pre.), 2019 (Shift - I)] may direct that the person disobeying the order
(A) is not executable be detained in the civil prison for a term not
(B) is executable by detention of the exceeding three months unless before the expiry
judgement debtor in civil prison or by of such term the Court directs his release.
attachment of his property 97. Abatement means:—
(C) is executable by filing a petition under [HJS (Pre.), 2010]
Order XXXIX, Rule 2A of the CPC (A) suspension or termination of proceedings
(D) Is executable by filing a fresh suit in an action for want of proper parties
Ans. (B) (B) the process of bringing on record legal
Order XXI, Rule 32.—(1) Where the party against representatives of the deceased party
whom a decree for the specific performance of (C) both (A) and (B)
a contract, or for restitution of conjugal rights, or (D) none of the above
for an injunction, has been passed, has had an Ans. (A)
opportunity of obeying the decree and has wilfully Abatement means suspension or termination
failed to obey it, the decree may be enforced in of proceedings in an action for want of proper
the case of a decree for restitution of conjugal parties.
rights by the attachment of his property or, in the
98. B a bank, under a scheme for grant of
case of a decree for the specific performance of
educational loan to females, grants a loan of
a contract or for an injunction by his detention
Rs. 2,00,000 to A. A fails to repay the loan
in the civil prison, or by the attachment of his
and B files a suit for recovery thereof. During
property, or by both.
the pendency of suit, A is married. B does not
96. Period of detention in civil imprisonment as take any steps within the prescribed time, to
a consequence of disobedience or breach of substitute the maiden name of A with the
any injunction, shall not exceed. married name of A in the suit. The suit is
[Uttarakhand JS (Pre.), 2019] decided in favour of B and against A in her
(A) 1 month maiden name:
(B) 3 months [DJS Set-A (Pre.), 2018-2019]
(C) 6 months (A) The suit abates and decree is a nullity.
(D) 1 year (B) The suit does not abate but the decree
Ans. (B) against A in her maiden name cannot be
Period of detention in civil imprisonment as a executed.
consequence of disobedience or breach of any (C) The decree can be executed against the
injunction, shall not exceed 3 months. husband of A also.
Order XXI, Rule 41.—(2) Where a decree for the (D) The decree may be executed against A in
payment of money has remained unsatisfied for her married name.
a period of thirty days, the Court may, on the Ans. (D)
application of the decree-holder and without Order XXII, Rule 7- Suit not abated by marriage
prejudice to its power under sub-rule (1), by of female party.—(1) The marriage of a female
order require the judgement-debtor or where plaintiff or defendant shall not cause the suit
the judgement-debtor is a corporation, any to abate, but the suit may notwithstanding be
officer thereof, to make an affidavit stating the proceeded with the judgement, and, where the
particulars of the assets of the judgement-debtor. decree is against a female defendant, it may be
(3) In case of disobedience of any order made executed against her alone.
under sub-rule (2), the Court making the order, or

(2) Where the husband is by law liable for the be transposed as a plaintiff under rule 10 of Order
debts of his wife, the decree may, with the I the Court shall, in considering such application,
permission of the Court, be executed against have due regard to the question whether the
the husband also; and, in case of judgement for applicant has a substantial question to be
the wife, execution of the decree may, with such decided as against any of the other defendants.
permission, be issued upon the application of the 101. The Court is required to appoint a guardian
husband, where the husband is by law entitled to ad litem:—
the subject-matter of the decree. [MPJS (Pre.), 2019 (Shift - I)]
99. Right to withdraw the suit, is:— (A) For a minor plaintiff only
[MPJS (Pre.), 2012] (B) For a minor defendant only
(A) an absolute right of the plaintiff (C) for plaintiff and defendant both
(B) a qualified right of the plaintiff (D) None of these
(C) fettered by certain conditions Ans. (B)
(D) Both (B) and (C) Order XXXII, Rule 3- Guardian for the suit to be
Ans. (A) appointed by Court for minor defendants.—(1)
Right to withdraw the suit is an absolute right of Where the defendant is a minor the Court, on
the plaintiff. being satisfied of the fact of his minority, shall
Order XXIII, Rule 1- Withdrawal of suit or appoint a proper person to be guardian for the
abandonment of part of claim.—(1) At any time suit for such minor.
after the institution of a suit, the plaintiff may as 102. A person who does not have sufficient means
against all or any of the defendants abandon his to pay court fees on a suit for recovery of
suit or abandon a part of his claim money for which cause of action has accrued
100. Where a suit is withdrawn by the plaintiff to him.
under Order XXIII Rule 1 of the CPC. [DJS Set-A (Pre.), 2018-2019]
[DJS Set-A (Pre.), 2018-2019] (A) cannot file the suit.
(A) Neither of the defendants therein can (B) can file the suit by furnishing Bank
apply to be transposed as plaintiff. Guarantee.
(B) Any of the defendants thereto can apply (C) can file the suit by furnishing an affidavit
to be transposed as a plaintiff as a to pay court fees out of the decretal
matter of right. amount.
(C) Any of the defendants thereto can apply (D) can file the suit by establishing before
to be transposed as plaintiff only if the Court that he is not possessed of
satisfies the court, that the conditions sufficient means to pay the court fees.
under Order I, Rule 10, CPC and further Ans. (D)
that the said defendant has a substantial He can file the suit by establishing before the
question to be decided against any of Court that he is not possessed of sufficient
the other defendants. means to pay the court fees.
(D) Any of the defendants thereto can apply 103. Provisions relating to interpleader suit are
to be transposed to plaintiff under Order contained in:—
I, Rule 10 of the CPC. [Jharkhand Judicial Services (Pre.), 2016]
Ans. (C) (A) Order XXXVI of CPC
Order XXIII, Rule 1A- When transposition of (B) Order XXII of CPC
defendants as plaintiffs may be permitted.— (C) Order XXXIV of CPC
Where a suit is withdrawn or abandoned by a (D) Order XXXV of CPC
plaintiff under rule 1, and a defendant applies to Ans. (D)

Provisions relating to interpleader suits are (C) irreparable injury to him in the event of
contained in Order XXXV. non-grant of injunction
104. Order XXXVII of the CPC applies to a suit:— (D) all of the above
[DJS Set-A (Pre.), 2018-2019] Ans. (D)
(A) Upon bills of exchange, hundies and A temporary injunction can be granted to a party
promissory notes and suits in which the establishing a prima facie case in his favour.
plaintiff seeks only to recover a debt or A temporary injunction can be granted to a party
liquidated demand in money payable establishing balance of convenience in his favour.
by the defendant arising on a written A temporary injunction can be granted to a party
contract or on an enactment or on a establishing irreparable injury to him in the event
guarantee. of non-grant of injunction.
(B) Upon bills of exchange, hundies and Order XXXIX, Rule 1- Cases in which temporary
promissory notes and suits in which the injunction may be granted.—Where in any suit it
plaintiff seeks only to recover a debt or is proved by affidavit or otherwise—
liquidated demand in money payable (a) that any property in dispute in a suit is in
by the defendant arising on a written danger of being wasted, damaged or alienated
contract or on an enactment or on a by any party to the suit, or wrongfully sold in
guarantee or for recovery of receivables execution of a decree, or
instituted by any assignee of a receivable. (b) that the defendant threatens, or intends,
(C) On payment of double the court fees. to remove or dispose of his property with a
(D) For compensation for defamation. view to defrauding his creditors,
Ans. (B) (c) that the defendant threatens to dispossess,
Order XXXVII, Rule 1.— (2) Subject to the provisions the plaintiff or otherwise cause injury to the
of sub-rule (1), the Order applies to the following plaintiff in relation to any property in dispute
classes of suits, Namely:— in the suit, the Court may by order grant a
(a) suits upon bills of exchange, hundies and temporary injunction to restrain such act, or
promissory notes; make such other order for the purpose of
(b) suits in which the plaintiff seeks only to staying and preventing the wasting, damaging,
recover a debt or liquidated demand in alienation, sale, removal or disposition of the
money payable by the defendant, with or property or dispossession of the plaintiff, or
without interest, arising, — otherwise causing injury to the plaintiff in
(i) on a written contract; or relation to any property in dispute in the suit
as the Court thinks fit, until the disposal of
(ii) on an enactment, where the sum sought
the suit or until further orders.
to be recovered is a fixed sum of money
or in the nature of a debt other than a 106. Upon grant of an ex parte injunction, the
penalty; or plaintiff has to comply with the proviso to
(iii) on a guarantee, where the claim against Order XXXIX Rule 3 of the CPC, by filing an
the principal is in respect of a debt or affidavit:—
liquidated demand only. [DJS Set-A (Pre.), 2018-2019]
(A) Within seven days from the date on
105. A temporary injunction can be granted to a
which injunction is granted.
party establishing:—
(B) Within three days from the date on which
[HJS (Pre.), 2010] such injunction is granted.
(A) a prima facie case in his favour
(B) balance of convenience in his favour

(C) On the day on which injunction is granted (c) pay the amount due from him as the Court
or on the day immediately following that directs; and
day. (d) be responsible for any loss occasioned to
(D) Within fifteen days from the date on the property by his wilful default or gross
which injunction is granted. negligence.
Ans. (C)
Order XL, Rule 4, Enforcement of receiver’s
Order XXXIX, Rule 3- Before granting injunction,
duties.—Where a receiver—
Court to direct notice to opposite party.—The
(a) fails to submit his accounts at such periods
Court shall in all cases, except where it appears
and in such form as the Court directs, or
that the object of granting the injunction would
(b) fails to pay the amount due from him as the
be defeated by the delay, before granting an
Court directs, or
injunction, direct notice of the application for the
same to be given to the opposite party: (c) occasions loss to the property by his wilful
Provided that, where it is proposed to grant an default or gross negligence, the Court may
injunction without giving notice of the application direct his property to be attached and
to the opposite party, the Court shall record the may sell such property, and may apply the
reasons for its opinion that the object of granting proceeds to make good any amount found to
the injunction would be defeated by delay and be due from him or any loss occasioned by
require the applicant, him, and shall pay the balance (if any) to the
(B) to file, on the day on which such injunction is receiver.
granted or on the day immediately following that 108. “The second appeal is permissible only if the
day, an affidavit stating that the copies aforesaid finding is perverse” was held by the Supreme
have been so delivered or sent. Court of India in:—
107. Which of the following is incorrect:— [HPJS (Pre.), 2018]
[PJS (Pre.), 2019] (A) Dinesh Kumar versus Yusuf Ali, AIR 2010
(A) Property in the hands of the receiver SC 2679
cannot be attached without the (B) State versus ML Keshari, AIR 2010 SC
permission of the court appointing him 2587
(B) Receiver can purchase the property in (C) Bimlesh versus New India Assurance
respect of which he has been appointed Company Ltd., AIR 2010 SC 2591
(C) If the receiver fails to account for the gain (D) Dasrath versus State of Madhya Pradesh,
and the loss ensued by his conduct the AIR 2010 SC 2592
loss so occasioned can be made good Ans. (A)
by attaching and sale of the receiver’s Case Reference: Dinesh Kumar versus Yusuf Ali,
personal property AIR 2010 SC 2679
(D) All the above Interference in second appeal is permissible
Ans. (B) only when the findings are based on misreading
Order XL, Rule 3, Duties.—Every receiver so of evidence or are so perverse that no person of
appointed shall— ordinary prudence could take the said view.
(a) furnish such security (if any) as the Court 109. Which of the following cases deals with
thinks fit, duly to account for what he shall principles relating to exclusion of jurisdiction
receive in respect of the property; of civil court?
(b) submit his accounts at such periods and in [HPJS (Pre.), 2019-II]
such form as the Court directs; (A) Dhulabhai versus State of MP, AIR 1969
SC 78

(B) Daryao versus State of UP, AIR 1961 SC the right or liability and further lays down that all
574 questions about the said right and liability shall
(C) Lal Chand versus Radha Krishnan, AIR be determined by the tribunals so constituted,
1977 SC 789 and whether remedies normally associated with
(D) State of UP versus Nawab Hussain, AIR actions in Civil Courts are prescribed by the said
1977 SC 1680. statute or not.
Ans. (A) 110. In which of the following cases, it was held
Case Reference: Dhulabhai versus State of MP, that ‘inherent power has not been conferred
AIR 1969 SC 78 on a court, it is a power inherent in a court’?
Principles relating to exclusion of jurisdiction of [Bihar APO (Pre.), 2013]
civil court:— (A) Rajnibhai versus Kamla Devi
“It is true that even if the jurisdiction of the (B) Manohar Lal versus Seth Hiralal
civil court is excluded, where the provisions of (C) Cotton Corporation of India versus United
the statute have not been complied with or the Industrial Bank
statutory tribunal has not acted in conformity with (D) Styabrata Biswas versus Kalyan Kumar
the fundamental principles of judicial procedure, Kisku
the civil courts have jurisdiction to examine these
Ans. (B)
cases.”
Case Reference: Manohar Lal versus Seth Hiralal,
Where the statute gives a finality to the orders of
AIR 1962 SC 527
the special tribunals the Civil Courts’ jurisdiction
“The inherent powers of the Court are in addition
must be held to be excluded if there is adequate
to the powers specifically conferred on the Court
remedy to do what the Civil Courts would normally
by the Code. They are complementary to those
do in a suit. Such provision, however, does not
powers and therefore it must be held that the
exclude those cases where the provisions of the
Court is free to exercise them for the purpose
particular Act have not been complied with or the
mentioned in Section 151 of the Code when the
statutory tribunal has not acted in conformity with
exercise of those powers is not in any way in
the fundamental principles of judicial procedure.
conflict with what has been expressly provided
Where there is an express bar of the jurisdiction
in the Code or against the intentions of the
of the court, an examination of the scheme
Legislature.”
of the particular Act to find the adequacy or
Section 151 itself says that nothing in the Code
the sufficiency of the remedies provided may
shall be deemed to limit or otherwise affect
be relevant but is not decisive to sustain the
the inherent power of the Court to make orders
jurisdiction of the civil court.
necessary for the ends of justice. In the face
Where there is no express exclusion the
of such a clear statement, it is not possible to
examination of the remedies and the scheme
hold that the provisions of the Code control
of the particular Act to find out the intendment
the inherent power by limiting it or otherwise
becomes necessary and the result of the inquiry
affecting it. The inherent power has not been
may be decisive. In the latter case it is necessary
conferred upon the Court; it is a power inherent
to see if the statute creates a special right or
in the Court by virtue of its duty to do justice
a liability and provides for the determination of
between the parties before it.

Recent and Relevant Cases
Bhagyoday Cooperative Bank Ltd. versus Ravindra Balkrishna Patel (D), 2022 LiveLaw (SC) 1020
Point/s to note: Order XXI, Rule 46A; CPC; garnishee; attachment of property; other property; Order 21.
Manner Under Order XXI, Rule 46A
y Order 21 Rule 46A of CPC is part of the scheme of the provisions relating to executions and it must
be understood with reference to the reliefs which can be claimed by the decree holder as provided
in both Section 51 and Order 21 Rule 11 of CPC.
y The aspects of attachment of various kinds of properties are found to be separately dealt with in
Order 21 of CPC, and the procedure to be followed has been detailed thereunder. Order 21 Rule 46
apparently deals with attachment of debt, share and other property but an important distinguishing
feature is that the debt, share and other property must not be in the possession of the judgement
debtor to attract Order 21 Rule 46. The exception is in regard to ‘such other property’ which though
not in the possession of the judgement debtor, is property deposited or is in the custody of any Court.
In other words, in regard to such property Order 21 Rule 46 and therefore Order 21 Rule 46A will not
apply. Order 21 Rule 46A of CPC was in fact, inserted by Act 104 of 1976 with effect from 01.02.1997.
So are the rest of the provisions which include Order 21 Rule 46B to Order 21 Rule 46I of CPC.
y In the case of debt, share and other property which is covered by Order 21 Rule 46 the procedure
begins with an attachment. It is to be made by a written order. The order prohibits the creditor
recovering the debt and the debtor from making payment until further orders of the Court. The copy
of the order prohibiting the parties is to be affixed on a conspicuous part of the Courthouse and
another copy is to be sent to the debtor. The debtor of the judgement debtor is prohibited from
making the payment. He may pay the amount of debt into the Court and such payment will be a
discharge for him as if he has made the payment to his immediate creditor.
y It is clear from Order 21 Rule 46A that in the case of debt which must be understood as a debt spoken
of in Order 21 Rule 46 of CPC subject to what we will say immediately hereinafter, it is insisted upon
by the lawgiver that the debt must have been attached under Order 21 Rule 46. There is a further
qualification as regards debt. Order 21 Rule 46A excerpts, debt secured by a mortgage or a charge.
Once these conditions are fulfilled, then upon an application being made by the ‘attaching creditor’
a notice may be issued to the garnishee who in the example we have given, is ‘A’ calling upon him
either to pay the debt or so much of it as would be sufficient to satisfy the decree and the cost of
execution or show cause as to why he should not do so. Under Order 21 Rule 46B, if the garnishee
does not pay the amount forthwith or he does not appear in the case of a show cause, the Court is
empowered to order the garnishee to comply with the terms of the notice. The Court is empowered
to proceed as if there is a decree against the garnishee.
y It is clear that the lawgiver has contemplated conferring invaluable rights on the garnishee in the
form of empowering him to challenge the attachment which is necessarily involved in the order of
garnishee under Order 21 Rule 46A of CPC. If the attachment is made under Order 21 Rule 46 of CPC,
it would be open to him to question it under Order 21 Rule 58. If it is followed by an order under
Order 21 Rule 46A, it is open to him to dispute his liability under Order 21 Rule 46C.
—————
Kalyan Kumar Bera versus Milan Kumar Khutia, 2022 LiveLaw (Cal) 357
Point/s to note: Order I; CPC; Order 1; parties to suit; non-joinder; representative suit, Section 99; Rule
13, Rule 9;

Order I ‘Interpretation’
y Order I of CPC deals with the subject namely, ‘Parties to Suits’. Rules 3, 9, and 13 of Order I are the
relevant provisions which should be taken into consideration besides Section 99 of the Code. Rule
3 lays down as to who are to be joined as defendants. Rule 9 states that no suit shall be defeated
by reason of the misjoinder or non-joinder of parties. Rule 9 speaks further that the Court may in
every suit deal with the matter in controversy so far as regards the rights and interests of the parties
actually before it. The general rule of procedure in rule 9 is subject to the proviso thereto which
speaks that such general rule shall not apply to non-joinder of a necessary party. So it is obvious
that the non-joinder of a necessary party stands on a different footing and is a ground to dismiss a
suit. Rule 13 mandates to take all objections on the ground of non-joinder or misjoinder of parties
at the earliest opportunity and, in all cases where issues are settled, at or before such settlement,
unless the ground of objection has subsequently arisen and any such objection not so taken shall be
deemed to have been waived. Admittedly, Rule 13 is applicable only to cases of mere non-joinder or
misjoinder of parties. It has no manner of application to a case of non-joinder of a necessary party.
y Section 99 of CPC provides that no decree shall be reversed or substantially varied, nor shall any
case be remanded, in appeal on account of any misjoinder or non-joinder of the parties or causes of
action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of
the case or the jurisdiction of the Court but such general rule is also subject to the proviso which
provides that nothing in this section shall apply to non-joinder of a necessary party.
—————
Sanjay Kumar Singh versus State of Jharkhand, 2022 LiveLaw (SC) 268; 2022 Latest Case Law 216 SC
Point/s to note: Order 41 Rule 27; CPC; Section 96; application under Order 41.
Application Under Order 41, Rule 27 CPC
y Appellant filed an application under Order 41 Rule 27 for additional evidence to bring on record the
sale deeds and certified copy of the judgement and award passed by the Reference Court which,
according to the appellant, would have a direct bearing on the determination of the fair market
value of the acquired land. The High Court has rejected the said application by observing that the
application does not satisfy the requirement of Order 41 Rule 27 read with Section 96 of the CPC.
y It is true that the general principle is that the appellate court should not travel outside the record
of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule
27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may
also be true that the appellate court may permit additional evidence if the conditions laid down in
this Rule are found to exist and the parties are not entitled, as of right, to the admission of such
evidence. However, at the same time, where the additional evidence sought to be adduced removes
the cloud of doubt over the case and the evidence has a direct and important bearing on the main
issue in the suit and the interest of justice clearly renders it imperative that it may be allowed to
be permitted on record, such application may be allowed. Even, one of the circumstances in which
the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be
considered is, whether or not the appellate court requires the additional evidence so as to enable it
to pronounce judgement or for any other substantial cause.
—————
Solomon Selvaraj versus Indrani Bhagawan Singh, 2022LatestCaselaw 940 SC
Point/s to note: CPC; Order 33; interpretation; manner; indigent persons; scheme of Order 33.

Scheme Under Order XXIII
y An application to sue as indigent persons would be under Order 33 Rule 1 CPC. Order 33 Rule 1A CPC
provides for inquiry into the means of an indigent person. Order 33 Rule 2 CPC provides contents of
application. Order 33 Rule 4 CPC provides for examination of the applicant in case the application is
in proper form and duly presented.
y Order 33 Rule 5 CPC provides the circumstances under which the application for permission to
sue as an indigent person can be rejected. From the scheme of Order 33 CPC, it emerges that the
application under Order 33 Rule 1 CPC seeking permission to sue as an indigent person can be
rejected on the grounds mentioned in Order 33 Rule 5 CPC.
y Order 33 Rule 7 CPC provides for procedure at hearing. Order 33 Rule 8 CPC provides for procedure
if an application is allowed. It appears that if the application is granted, it shall be numbered and
registered, and it shall be deemed the plaint in the suit, and the suit shall proceed in all other
respects as the suit instituted in an ordinary manner, except that the plaintiff shall not be liable to
pay any court fee or fees payable for service of process in respect of any petition, the appointment of
a pleader or other proceeding connected with the suit. Meaning thereby if the application is granted
thereafter the suit shall be numbered and registered. Till then the plaint/suit shall be at the pre-
numbered and pre-registered stage.
y Order 33 Rule 9 CPC provides for the withdrawal of permission to sue as an indigent person on the
application of the defendant, or of the Government pleader on the grounds stated in Order 33 Rule
9 CPC. When such an application is preferred under Order 33 Rule 9A CPC, it is the duty cast upon
the Court to assign a pleader to a person who is permitted to sue as an indigent person, if not ready
by a pleader.
—————
Square Four Assets Management and Reconstruction Co. P Ltd versus Orient Beverages Ltd., 2022
LiveLaw (Cal) 333
Point/s to note: Order 12; CPC; Judgement on Admissions;
Object of Order XII
y The statutory premise of Order XII Rule 6 of The Code of Civil Procedure, 1908- “Judgement on
Admissions” - is that a party making an admission of fact in a pleading or otherwise whether in an
oral or written form will be held to it on the application of the other party or the Court on its own
motion. The admission so made may be transformed to an order or judgement by the Court subject
to its discretionary considerations and solely confined to such admission. The pre-condition to a
judgement being pronounced on the admission made by a party is that the admission must be capable
of standing on its own and sustaining its life and form even when taken out of the context. In other
words, the admission, relied on by the party, who seeks to enforce it against the party which made
the admission, must not be emasculated when pulled out of its surrounding circumstances. The
admission used for pronouncing judgements must be unequivocal, independent and unconditional. It
cannot be an admission which would fulfill the aforesaid conditions only when placed in conjunction
with other conditions closely intertwined with the admission. Since Order XII Rule 6 empowers the
Court to pronounce judgements on the admission without waiting for determination of the other
questions between the parties, the admission must remain true to the spirit in which it has been
used in the Code.

y The object of Order XII Rule 6 where a court has jurisdiction to enter a judgement for the plaintiff
and to pass a decree on an admitted claim. The Supreme Court however noted that the admission
should be a clear admission of fact where it is impossible for the party making such admission to
succeed in an application under Order XII Rule 6. [Uttam Singh Dugal & Co. Ltd. versus Union Bank of
India, (2000) 7 SCC 120]
—————
S Ramachandra Rao versus S Nagabhushana Rao, 2022 Latest Case Law 840 SC
Point/s to note: rule of res judicata; section 11; basic principles; public interest; question of law; the
question of fact.
Doctrine of Res Judicata
y The basic principles of res judicata are generally specified in the principal part of Section 11 of the
Code of Civil Procedure, 1908.
y Section 11 CPC is not the foundation of the doctrine of res judicata but is merely the statutory
recognition thereof and, hence, is not considered exhaustive of the general principles of law. This
doctrine, it is recognised, is conceived in the larger public interest and is founded on equity, justice
and good conscience.
y In determining the application of the rule of res judicata the Court is not concerned with the
correctness or otherwise of the earlier judgement. The matter in issue, if it is one purely of fact,
decided in the earlier proceeding by a competent Court must in a subsequent litigation between the
same parties be regarded as finally decided and cannot be reopened. A mixed question of law and
fact determined in the earlier proceeding between the same parties may not, for the same reason,
be questioned in a subsequent proceeding between the same parties. But, where the decision is on a
question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding
between the same parties where the cause of action is the same, for the expression “the matter in
issue” in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e.
the facts on which the right is claimed or denied and the law applicable to the determination of that
issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court
or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a
party affected by the decision will not be precluded from challenging the validity of that order under
the rule of res judicata, for a rule of procedure cannot supersede the law of the land.
—————
MM Madhavan Namboodiri versus The Tahsildar Thamarassery, 2022 LiveLaw (Ker) 548
Point/s to note: Order 8; Rule 1; directory or mandatory; mandate of order; interpretation
Interpretation of Order VIII Rule 1 CPC
y Whether the time limit of 90 days as prescribed under the proviso appended to Order VIII Rule 1 CPC
is mandatory or directory.
y As mandated under the proviso to Rule 1 of Order VIII of CPC, the defendants have to file a written
statement within 30 days. The provision further states that the Court has the power to receive
written statements beyond 30 days, for reasons to be recorded in writing. But that period shall not
be later than 90 days from the date of service of summons.
y The time limit fixed is only directory in nature. The proviso to Order VIII Rule 1 CPC, providing for the
upper limit of 90 days to file written statements is directory.
—————

Mahesh Govindji Trivedi versus Bakul Maganlal Vyas, 2022 Latest Case Law 807 SC; also see, Ashok
Kumar Kalra versus Wing Cdr. Surendra Agnihotri, (2020) 2 SCC 394
Point/s to note: Order 8, Rule 6A; CPC; restrictions; counterclaim; written statement.
Whether Order VIII Rule 6A of the CPC Mandates an Embargo on Filing the Counter-Claim after Filing
the Written Statement?
y The purpose of introducing Rule 6A in Order 8 CPC is to avoid multiplicity of proceedings by driving
the parties to file separate suits and see that the dispute between the parties is decided finally.
If the provision is interpreted in such a way, to allow the delayed filing of the counterclaim, the
provision itself becomes redundant and the purpose for which the amendment is made will be
defeated and ultimately it leads to a flagrant miscarriage of justice. At the same time, there cannot
be a rigid and hyper-technical approach that the provision stipulates that the counterclaim has
to be filed along with the written statement and beyond that, the court has no power. The courts,
taking into consideration the reasons stated in support of the counterclaim, should adopt a balanced
approach keeping in mind the object behind the amendment and to sub-serve the ends of justice.
There cannot be any hard and fast rule to say that in a particular time the counterclaim has to be
filed, by curtailing the discretion conferred on the courts.
y The trial court has to exercise the discretion judiciously and come to a definite conclusion that
by allowing the counterclaim, no prejudice is caused to the opposite party, process is not unduly
delayed and the same is in the best interest of justice and as per the objects sought to be achieved
through the amendment. But however, we are of the considered opinion that the defendant cannot
be permitted to file counterclaim after the issues are framed and after the suit has proceeded
substantially. It would defeat the cause of justice and be detrimental to the principle of speedy
justice as enshrined in the objects and reasons for the particular amendment to the CPC.
y Order 8 Rule 6-A CPC does not put an embargo on filing the counterclaim after filing the written
statement, rather the restriction is only with respect to the accrual of the cause of action. Having said
so, this does not give an absolute right to the defendant to file the counterclaim with substantive
delay, even if the limitation period prescribed has not elapsed. The court has to take into consideration
the outer limit for filing the counterclaim, which is pegged till the issues are framed. The court in
such cases have the discretion to entertain filing of the counterclaim, after taking into consideration
and evaluating inclusive factors provided below which are only illustrative, though not exhaustive:
(i) Period of delay.
(ii) Prescribed limitation period for the cause of action pleaded.
(iii) Reason for the delay.
(iv) Defendant’s assertion of his right.
(v) Similarity of the cause of action between the main suit and the counterclaim.
(vi) Cost of fresh litigation.
(vii) Injustice and abuse of process.
(viii) Prejudice to the opposite party.
(ix) And facts and circumstances of each case.
(x) In any case, not after framing the issues.
—————

Sukhbir Devi versus Union of India, 2022 Latest Case Law 777 SC
Point/s to note: Order 14, Rule 2; CPC; limitation; mixed question of law and facts.
Limitation for the Purpose of Application of Order XIV, Rule 2
y Limitation for the purpose of application of Order XIV, Rule 2(2)(b) of the CPC. Though, limitation is a
mixed question of law and facts it will shed the said character and would get confined to one of the
questions of law when the foundational fact(s), determining the starting point of limitation is vividly
and specifically made in the plaint averments. In such a circumstance, if the Court concerned is of
the opinion that limitation could be framed as a preliminary point and it warrants postponement of
settlement of other issues till the determination of that issue, it may frame the same as a preliminary
issue and may deal with the suit only in accordance with the decision on that issue. It cannot be said
that such an approach is impermissible in law and in fact, it is perfectly permissible under Order XIV,
Rule 2(2)(b), CPC, and legal in such circumstances.
y In short, in view of the decisions and the provisions, referred above, it is clear that the issue limitation
can be framed and determined as a preliminary issue under Order XIV, Rule 2(2)(b), CPC in a case
where it can be decided on admitted facts.
y Provisions under Order XIV Rule 2(1) and Rule 2(2)(b) permit to deal with and dispose of a suit in
accordance with the decision on the preliminary issue. In the case on hand in view of the nature of
the finding on the preliminary issue and the consequential consideration of the suit in terms of Order
XIV Rule 2(2)(b) and taking note of the fact that the suit does not survive after such consideration,
we find no reason to consider the contention of the appellants with reference to Order VII Rule 11
based on the decisions relied on by them and referred hereinbefore.
—————
GNR Babu @ SN Babu versus Dr. BC Muthappa, 2022 Latest Case Law 695 SC
Point/s to note:Ex parte decree; CPC; Order 9; Rule 13; Section 96; Section 105; maintainable; set aside;
y In an application under Order 9 Rule 13 of the Code, however, apart from questioning the correctness
or otherwise of an order posting the case for ex parte hearing, it is open to the defendant to contend
that he had sufficient and cogent reasons for not being able to attend the hearing of the suit on the
relevant date. When an ex parte decree is passed, the defendant (apart from filing a review petition
and a suit for setting aside the ex parte decree on the ground of fraud) has two clear options, one, to
file an appeal and another to file an application for setting aside the order in terms of Order 9 Rule 13
of the Code. He can take recourse to both the proceedings simultaneously but in the event the appeal
is dismissed as a result whereof the ex parte decree passed by the trial court merges with the order
passed by the appellate court, having regard to Explanation appended to Order 9 Rule 13 of the Code
a petition under Order 9 Rule 13 would not be maintainable. However, Explanation I appended to the
said provision does not suggest that the converse is also true.
y Though after the dismissal of an appeal under Section 96 of CPC against ex parte decree, an application
under Rule 13 of Order IX of CPC will not be maintainable, there is no bar on unsuccessful defendants
adopting both remedies simultaneously. In such a case, if the regular appeal against the decree is
dismissed, obviously the application under Rule 13 of Order IX of CPC cannot proceed. The reason is
that explanation to Rule 13 of Order IX of CPC lays down that where there has been an appeal against
a decree passed ex parte and the appeal has been disposed of on any ground other than withdrawal,
the application for setting aside ex parte decree will not lie. However, in the event an application
under Rule 13 of Order IX of CPC is dismissed, the defendant can prosecute the appeal against the

decree as a right to prefer appeal under Section 96 cannot be taken away in absence of any express
provision to the contrary in CPC.
y In this case, the question is when the defendant did not avail the remedy under Rule 13 of Order IX
of CPC, whether it is open for him to agitate in the regular appeal against the decree that the trial
court had no justification for proceeding ex parte against the appellant. In such a case, though the
appellant would not be entitled to lead evidence in appeal for making out a sufficient cause for
his absence before the trial court, he can always argue on the basis of the record of the suit that
either the suit summons was not served upon him or that even otherwise also, the trial court was
not justified in proceeding ex parte against him. The reason is that under Section 105 of CPC, when
a decree is appealed from, any error, defect, or irregularity in any order affecting the decision of the
case can be set forth as a ground of objection in the Memorandum of Appeal. Thus, in such a case,
the appellant can always urge in an appeal against the decree that an interim or interlocutory order
passed during the pendency of the suit affecting the decision of the case was illegal. Therefore, the
appellant, while challenging ex parte decree by filing an appeal, can always point out from the record
of the trial court that the order passed to proceed with the suit ex parte against him was illegal.
—————
Griesheim GmbH versus Goyal MG Gases Pvt. Ltd., 2022 LiveLaw (SC) 95; 2022 Latest Case Law 95 SC
Point/s to note: Section 44A; CPC; decree holder; cause of action; execution of decree
Section 44A of CPC Is An Enabling Provision
y Section 44A of the Code is in the nature of an independent, enabling provision which gives the
decree holder a fresh and new cause of action irrespective of the original character of the cause in
which the decree came to be passed.
y The expression ‘District” is defined under Section 2(4) of the Code and the term “District Court”
referred under Section 44A of the Code although not defined, but on conjoint reading of the provision
makes it clear that it refers to the local limits of the jurisdiction of a principal civil Court of original
jurisdiction (provisions of the Code called a “District Court”) and it includes the local limits of the
ordinary original civil jurisdiction of a High Court and it is not disputed that principal civil Court of
original jurisdiction is normally a District Court (with whatever change in the nomenclature) and the
High Courts in India exercising ordinary original civil jurisdiction are not too many, but where there
is a split jurisdiction based on its pecuniary value, notified from time to time, the District Court or
the High Court in its ordinary original civil jurisdiction is competent to exercise power for execution
of decree, including money decree of the foreign Court of reciprocating jurisdiction, provided other
conditions are complied with as contemplated under Section 44A of the Code.
y Section 44A of the Code provides for the execution of decrees passed by the foreign Courts in
reciprocating territories. It, inter alia, stipulates that where a certified copy of a decree of any of
the Superior Court of any reciprocating territory has been filed in a District Court, the decree may
be executed in India as if it had been passed by a District Court. Together with the certified copy of
the decree, a certificate from such superior court is to be filed stating the extent, if any, to which
the decree has been satisfied or adjusted. Such a certificate is the conclusive proof of the extent of
such satisfaction or adjustment. Sub-section 3 of Section 44A of the Code further lays down that
provisions of Section 47 of the Code shall apply to such execution proceedings and the Court can
refuse the execution of any such decree, if it is shown to the satisfaction of the Court that the decree
falls within any of the exceptions specified in Clauses (a) to (f) in Section 13 of the Code.
—————

Sree Surya Developers and Promoters versus N Sailesh Prasad, 2022 LiveLaw SC 143, also see; Pushpa
Devi Bhagat versus Rajinder Singh, (2006) 5 SCC 566
Point/s to note: order 7 rule 11, order 23 rule 3 and 3A; interpretation; applicability; scheme of Order 23
The Scheme of Order 23
y At the stage of deciding the application under Order VII Rule 11 CPC, the only thing which is required
to be considered by the High Court is whether the suit is maintainable or not and that the suit
challenging the Compromise Decree is maintainable or not in view of Order XXIII Rule 3A CPC and at
this stage, the High Court/Court is not required to consider on merits the validity of the Compromise
Decree.
y The position that emerges from the amended provisions of Order 23 can be summed up thus: (i)
No appeal is maintainable against a consent decree having regard to the specific bar contained
in Section 96(3) CPC. (ii) No appeal is maintainable against the order of the court recording the
compromise (or refusing to record a compromise) in view of the deletion of clause (m) of Rule 1
Order 43. (iii) No independent suit can be filed for setting aside a compromise decree on the ground
that the compromise was not lawful in view of the bar contained in Rule 3-A. (iv) A consent decree
operates as an estoppel and is valid and binding unless it is set aside by the court which passed the
consent decree, by an order on an application under the proviso to Rule 3 Order 23.
y Therefore, the only remedy available to a party to a consent decree to avoid such consent decree,
is to approach the court which recorded the compromise and made a decree in terms of it, and
establish that there was no compromise. In that event, the court which recorded the compromise
will itself consider and decide the question as to whether there was a valid compromise or not. This
is so because a consent decree is nothing but a contract between parties superimposed with the
seal of approval of the court. The validity of a consent decree depends wholly on the validity of the
agreement or compromise on which it is made.
y The creation of further litigation should never be the basis of a compromise between the parties.
Rule 3-A Order 23 CPC put a specific bar that no suit shall lie to set aside a decree on the ground
that the compromise on which the decree is based was not lawful. The scheme of Order 23 Rule 3
CPC is to avoid multiplicity of litigation and permit parties to amicably come to a settlement which
is lawful, is in writing and a voluntary act on the part of the parties. The court can be instrumental
in having an agreed compromise effected and finality attached to the same. The court should never
be a party to imposition of a compromise upon an unwilling party, still open to be questioned on an
application under the proviso to Order 23 Rule 3 CPC before the court.
—————
Rajbir versus Suraj Bhan, 2022 LiveLaw (SC) 255
Point/s to note: CPC; order 21 rule 34; execution court cannot go beyond the decree; decree to be
executed as it is; salutary provisions of order XXI rule 34.
Execution Court Cannot Go Beyond the Decree
y Here in this case the decree in question provides for the execution of the document. The document
is the document of sale as contemplated under the decree. Therefore, Order XXI Rule 34 is clearly
attracted. It contemplates that if the judgement debtor neglects or refuses to obey the decree,
the decree-holder is to prepare a draft of the document. In this case, the draft of the document
is the draft sale deed. The draft of the sale deed must further be in accordance with the terms of
the decree. It is to be delivered to the court. Thereupon, it is not required that the decree-holder

must directly deliver it to the judgement debtor. The procedure, therefore, is that the decree-holder
must make it available to the Court. Under Order XXI Rule 34, it becomes the duty of the court to
thereupon cause the draft to be served upon the judgement debtor. There must be a notice inviting
objections and the court may fix a time within which objections are to be filed. The judgement debtor
may or may not object.
y Order XXI Rule 34 sub-rule (3) contemplates a situation where the judgement debtor objects. This
is to be contained in writing within the time provided. The court is duty bound to make an order
approving or altering the draft as it thinks fit. This is of considerable importance having regard to
what may follow subsequently on the strength of the decree. It is also important from the point of
view of the role of the executing court which is to act in conformity with the decree.
y It is well settled that the execution court cannot go beyond the decree. The decree must be executed
as it is. Though, it is indeed open to the executing court to construe the decree; it cannot go beyond
the decree. Therefore, when objections are filed pointing out in a given case that the proposed draft
of the sale deed is not in conformity with the decree, it becomes the duty of the executing court
to apply its mind and to make alterations in the draft, if needed, to make it in conformity with the
decree. It will be thereafter that the decree-holder is to deliver it to the court with the alterations
if any made by the court, on proper stamp paper, if required and the execution of the document is
affected by the court or the officer-appointed. There are other formalities contemplated in regard to
registration, all of which take place only after the procedure which is contemplated in Order XXI Rule
34 sub-rule (1) to (4) is followed.
—————
Sathyanath versus Sarojamani, (2022) 7 SCC 644
Point/s to note: order 14 rule 2; CPC; issues both of law and of fact; amendment; preliminary issue.
Issues of Law and Fact
y Order XIV Rule 2 before amendment by the Act No. 104 of 1976: Where issues both of law and of fact
arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed
of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit,
postpone the settlement of the issues of fact until after the issues of law have been determined.
y Order XIV Rule 2 after the substitution of Rule 2 by the Act No. 104 of 1976, effective from 1.4.1977:
Court to pronounce judgement on all issues.—(1) Notwithstanding that a case may be disposed of on
a preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgement
on all issues. (2). Where issues both of law and of fact arise in the same suit, and the Court is of
opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that
issue first if that issue relates to—(a) the jurisdiction of the Court, or (b) a bar to the suit created
by any law for the time being in force, and for that purpose may, if it thinks fit, postpone the
settlement of the other issues until after that issue has been determined, and may deal with the suit
in accordance with the decision on that issue.
y Material changes had been brought about by substituting Order XIV Rule 2 of the Code. The word
‘shall’ in the un-amended provision has been replaced by the word ‘may’ in the substituted provision,
therefore, it is now discretionary for the Court to decide the issue of law as a preliminary issue, or
to decide it along with the other issues. It was further held that even all issues of law cannot be
decided as preliminary issues and only those issues of law falling within the ambit of clause (a) and
(b) of sub-rule (2) of Rule 2 could be decided. [Sunni Central Waqf Board versus Gopal Singh Vishrad,
3 AIR 1991 ALL 89]

y The provisions of Order XIV Rule 2 are part of the procedural law, but the fact remains that such
procedural law had been enacted to ensure expeditious disposal of the lis and in the event of setting
aside of findings on preliminary issue, the possibility of remand can be avoided, as was the language
prior to the un-amended Order XIV Rule 2. If the issue is a mixed issue of law and fact, or the issue
of law depends upon the decision of fact, such issue cannot be tried as a preliminary issue. In other
words, preliminary issues can be those where no evidence is required and on the basis of reading of
the plaint or the applicable law, if the jurisdiction of the Court or the bar to the suit is made out, the
Court may decide such issues with the sole objective for the expeditious decision.
Practice Questions
1. Under what conditions, the objection as to 10. Explain the meaning of ‘precepts’. [Bihar
the place of suing can be allowed by any Judicial Services Examination, 2014 and
appellate or revisional court? [Rajasthan Rajasthan Judicial Services Examination,
Judicial Services Examination, 2016] 1992, 2014 and Delhi Judicial Services
2. Explain the essential ingredients of Examination, 2006]
Summons. What are the different modes of 11. Under what circumstances a court may
service of summons to the defendant? [Uttar dispose of a suit at the first hearing? [Uttar
Pradesh Judicial Services Examination, 2015] Pradesh Judicial Services Examination, 2013]
3. Define Injunction. Explain the grounds and 12. Under which provisions of CPC besides
principles for grant of temporary Injunction. section 11, a second suit has been barred?
[Madhya Pradesh Judicial Services Discuss briefly. [Uttar Pradesh Judicial
Examination, 2015] Services Examination, 2013]
4. Write a short note on the inherent powers of 13. What is the difference between a necessary
the Court. [Madhya Pradesh Judicial Services party and a proper party? [Haryana Judicial
Examination, 2015 and 2011] Services Examination, 2013]
5. Explain the principle of ‘res-judicata’. How 14. Describe the exigencies, procedure and
does it differ from ‘stay of suit’? Also state effect of a substituted service of summons.
whether ‘res judicata’ applies to execution [Madhya Pradesh Judicial Services
proceedings. [Bihar Judicial Services Examination, 2012]
Examination, 2014] 15. Enumerate the provisions by which place of
suing is determined. [Uttar Pradesh Judicial
6. Define “striking out pleadings”. [Madhya
Services Examination, 2012]
Pradesh Judicial Services Examination, 2014]
16. “Pleading to state material facts and not
7. What are the features of an ‘inter-pleader
evidence”. Explain. [Uttar Pradesh Judicial
suit’? Write a plaint for an interpleader
Services Examination, 2012]
suit on imaginary facts. [Rajasthan Judicial
Services Examination, 2014] 17. Explain constructive res-judicata. [Uttar
Pradesh Judicial Services Examination, 1986,
8. Write a short note on leave of defend in
2012]
summary suit. [Delhi Judicial Services
18. Examine the procedure for bringing suit by
Examination, 2014]
or against the government. [Uttar Pradesh
9. Write a short note on Examination of Parties
Judicial Services Examination, 1986, 2012]
by the civil court. [Delhi Judicial Services
19. Write a short note on ‘Legal representative’.
Examination, 2014]
[Madhya Pradesh Judicial Services
Examination, 2010]

20. Write a short note on Powers of Court to 25. What are the conditions for applicability
issue Commission. [Madhya Pradesh Judicial of doctrine of res judicata between co-
Services Examination, 2010] defendants? [Delhi Judicial Services
21. What do you understand by a suit of civil Examination, 2005]
nature? When exclusion of civil court’s 26. When can temporary injunctions be granted
jurisdiction is inferred? Give two examples. by a Civil Court? [Uttar Pradesh Judicial
[Madhya Pradesh Judicial Services Services Examination, 2003]
Examination, 2009] 27. Explain in detail the different modes of
22. State the circumstances when a plaint can execution of a decree under the Civil
be rejected? [Haryana Judicial Services Procedure Code. [Haryana Judicial Services
Examination, 2009] Examination, 2003]
23. What properties are not liable to be attached 28. What is a representative suit? By whom and
and sale in execution of decree? [Uttar under what circumstances can such a suit
Pradesh Judicial Services Examination, be filed? [Uttar Pradesh Judicial Services
1997 and Madhya Pradesh Judicial Services Examination, 2000]
Examination, 2007] 29. Explain the basic rules governing jurisdiction
24. Write short notes on the following:- of civil court. [Bihar & Jharkhand Judicial
(a) Stay of suits under section 10 of the Civil Services Examination, 2000]
Procedure Code. 30. What is res-sub judice? What is meant by
(b) Applicability of Res Judicata to consent res-judicata? [Rajasthan Judicial Services
decree. [Delhi Judicial Services Examination, 1984 and 1999]
Examination, 2006]
Solved Questions
Q. Write a short note on “inherent powers of the Court”.
Ans. Section 151 of the Code of Civil Procedure provides for civil courts to invoke their inherent
jurisdiction and utilise the same to meet the ends of justice or to prevent the abuse of process.
‘Inherent powers of the Court’ are in addition to the powers specifically conferred on the Court by the
Code. They are complementary to those powers and therefore it must be held that the Court is free to
exercise them for the purposes mentioned in Section 151 when the exercise of those powers is not in
any way in conflict with what has been expressly provided in the Code or against the intentions of the
Legislature. It is also well recognized that the inherent power is not to be exercised in a manner which
will be contrary to or different from the procedure expressly provided in the Code. Though Section 151
gives inherent power to the Court, it is intended only to prevent abuse of process of the court or to
meet the ends of justice.
Section 151 of the Code to be read as: “Nothing in this Code shall be deemed to limit or otherwise affect
the inherent power of the Court to make such orders as may be necessary for the ends of justice or to
prevent abuse of the process of the Court”
While exercising the powers conferred under Section 151 of CPC, it cannot be said that the civil courts
can exercise substantive jurisdiction to unsettle already decided issues. A Court having jurisdiction
over the relevant subject matter has the power to decide and may come either to a right or a wrong
conclusion. Even if a wrong conclusion is arrived at or an incorrect decree is passed by the jurisdictional
court, the same is binding on the parties until it is set aside by an appellate court or through other
remedies provided in law.

In what cases “Inherent powers” can be invoked?
a. Section 151 of the CPC can only be applicable if there is no alternate remedy available in accordance
with the existing provisions of law. Such inherent power cannot override statutory prohibitions or
create remedies which are not contemplated under the Code.
b. Section 151 cannot be invoked as an alternative to filing fresh suits, appeals, revisions, or reviews. A
party cannot find solace in Section 151 to allege and rectify historic wrongs and bypass procedural
safe-guards inbuilt in the CPC.
c. Section 151 will not be available when there is an alternative remedy and the same is accepted to
be a well-settled ratio of law. The operative field of power being thus restricted, the same cannot
be raised to inherent power.
d. The power under Section 151 is not intended to be used routinely. If so used, it will defeat the very
purpose of various amendments to the Code.
Q. When can temporary injunctions be granted by a Civil Court?
Ans. Temporary injunctions are governed by the provisions of the Civil Procedure Code, Order XXXIX,
rule 1. Order XXXIX, Rules 1 to 5 lays down the provision of grant of temporary injunction.
Under Order 39 Rule 1 of the Code, the court is empowered to issue a temporary injunction in any
suit. Under Rule 2, the court has been given a power for issue of temporary injunction to restrain the
repetition or continuance of breach in a suit. Rule 2A, lays down consequences of disobedience of
breach of injunction and Rule 3 empowers the court to direct notice to the opposite party where it
appears to the court that it is necessary to do so before granting the applicant temporary injunction.
Rule 3A empowers the court to dispose of an application within thirty days from the date on which
the injunction was granted. Rule 4 empowers the court to discharge, or vary, or set aside the order of
injunction. Rule 5 provides that injunctions are binding on the officers as well.
In what cases court is empowered to issue a temporary injunction in any suit, is prescribed under Rule
1 of Order XXXIX of CPC. 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.
Under the said Rule, a temporary injunction could be granted by the Court under three different
situations as specified in Clauses (a), (b) and (c) thereof. The said clauses only provide that in
circumstances mentioned in them the court may grant a temporary injunction. However, it does not
provide specifically that in what circumstances a temporary injunction cannot be issued.
The relief by way of a temporary injunction is granted to mitigate the risk of injustice to the plaintiff
during the pendency of the suit. Such injustice that may be caused to the plaintiff is to be weighed
against the corresponding need of the defendant to be protected against the injury resulting from
preventing him from exercising his legal rights. Therefore, the Court is to weigh the plaintiffs’ need,

against the defendant and determine where the balance of convenience lies. It is an equitable relief
that rests on the sound judicial discretion of the court, to be exercised in the backdrop of the facts of
each case. While granting or refusing the injunction, the Court is also required to see the conduct of
the parties.

Code of Civil Procedure, 1908: History

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1 Code of Civil Procedure, 1908

Objectives and Applicability of the Act

Code of Civil Procedure, 1908 1

List of Amending Acts and Adaptation Orders

2 Code of Civil Procedure, 1908

Code of Civil Procedure, 1908 3

4 Code of Civil Procedure, 1908

Code of Civil Procedure, 1908 5

Preliminary Suits in General

Code of Civil Procedure, 1908

Code of Civil Procedure, 1908

Execution Incidental Suits in Particular Cases Special Proceedings

Decree may Transfer of Transfer of Commission

Supplemental Proceedings Appeals

Appeal from original decree Appeal from General

Code of Civil Procedure, 1908

Code of Civil Procedure, 1908

Definitions Application No order under No further

Exemption of Right to lodge Power to Place of trial to

Code of Civil Procedure, 1908

Code of Civil Procedure, 1908

Commissions Suits by or Suits Involving Suits by Suits by or Suits by or Suits by Suits by or

Appeals by Appeals to Reference Review Miscellaneous Chartered Provincial Presidency

Code of Civil Procedure, 1908

Introduction to the Code

Codified law Uncodified Law

Acts or Statute Made By Judges

Made by the legislature or enacted Example: Law of Torts

Civil law Criminal Law

Wrong against an Wrong against Society

Substantive law vis-a-vis Procedural law

List Amendments along with their date of enactment

Code of Civil Procedure, 1908 13

Application of the code

Scheme the code

14 Code of Civil Procedure, 1908

Code of Civil Procedure, 1908 15

Preliminary Decree Final Decree

16 Code of Civil Procedure, 1908

Code of Civil Procedure, 1908 17

Every order is not judgement

Difference between Judgement, Order and Decree

(ii) Formal Expression Statement is to be No statement needs to No statements need to

(iv) Finality It is always final. Decree may be Order is always final.

18 Code of Civil Procedure, 1908

Order: Section 2(14)

Orders amounting to decree

Orders not Amounting to decree

Foreign court - Foreign Judgement

Code of Civil Procedure, 1908 19

Legal Representative: Section 2(11)

Mesne Profits: Section 2 (12)

Court to try suits unless barred: Section 9

20 Code of Civil Procedure, 1908

Code of Civil Procedure, 1908 21

Suit of Civil Nature

Suit of Civil Nature

Suit not of Civil Nature