C.P.

C NOTES

1. HISTORY OF CPC
 The Code of Civil Procedure, 1908 is a procedural law related mainly to
the administration of civil proceedings in India. The Code is divided
mainly into two parts.
1) 158 Section - First Part
2) 51 Orders - Second Part

The code was enacted on 21 " March 1908 and it came into effect from
1st January, 1909. Before 1859. there was no Uniform Code of Civil
Procedure in India. The First Uniform Civil Code Procedure was enacted
in 1859 but it had many defects. Another Code was enacted in 1877
and 1882 but again both were repealed. The main object of the Code is
to consolidate and the laws relating to the Procedure of Courts of Civil
Judicature. It is a consolidated Code collecting all the laws relating to
the procedure to be adopted by Civil Courts. lt is designed to facilitate
justice and it is not a penal enactment for punishments and penalties.
The legislature is not exhaustive as it is not capable of contemplating
all possible circumstances. which may arise in future litigation and
consequently for providing procedure for them.

 1859 (1st code of CPC)

 1877 (2nd code of CPC, not suitable in Indian Situation) fails.
 1882 (fails)
 1908 (Sir Early Richard introduce successful CPC)

2. IMPORTANT POINTS OF CPC

 CPC is drafted by Sir Early Richard.
 CPC is a Procedural Law.
 CPC is not exhaustive act.
 CPC is a Retrospective in nature.
 CPC is matter of Concurrent list (entry no. 13) of Schedule of the
Constitution.
 CPC applies in Liberal Interpretation, not in Strict Interpretation.
 CPC Total Part: 11
 CPC Total Order: 51
 CPC Total Section: 158
 High Court can make rule under section 122 and 125 of CPC

3. DEFINE SUIT RULES RELATED TO INSTITUTION OF SUITS

 A suit is a proceeding by which an individual pursues that remedy
which the law affords. It is a civil proceeding instituted by
the presentation of a plaint.

 Though the term suit has not been defined under the Civil Procedure
Code, 1908 (CPC).

 According to Section 2(1) of The Limitation Act, 1963, Suit does not
include an appeal or an application.

 In Ethiopian Airlines v. Ganesh Narain Saboo (2011), the Supreme

Court held that the term suit is a general term that includes all
actions which are to be taken by a person to enforce a legal right that
has been vested by law.

 Essentials of a Suit

1) The Opposing Parties:

 In every suit there must be at least one plaintiff and one defendant.

 There may be more than one plaintiff and more than one
defendant where an act or transaction proceeds from two or more
persons or it affects two or more persons.

2) The Cause of Action:

 Every suit must contain the cause of action which refers to the cause or
the set of circumstances which leads up to a suit.

 It consists of every fact which is necessary to be proved to entitle the

plaintiff to a decree.

 In Rajasthan High Court Advocates Association v. Union of India & Ors.

(2000), the SC held that the term cause of action had a judicially
established meaning. It refers to the conditions surrounding the
violation of the right or the direct cause of the conduct.

3) The Subject Matter:

 It is the right or property claimed in the suit.

 The court adjudicates upon the right of the parties with regard to
the subject matter in a dispute.

4) The Relief Claimed:

 The relief claimed should be stated specifically in the plaint. It may be

stated in the alternative also.

 The relief claimed must be one which the Court is able to grant.
 When a person is entitled to more than one relief in respect of the
same cause of action, he must sue for all reliefs.

 Institution of a Suit

 Section 26 and Order IV of CPC provides for the Institution of suit.

 Section 26 of CPC states that -

1) Every suit shall be instituted by the presentation of a plaint or in

such other manner as may be prescribed.

2) In every plaint, facts shall be proved by affidavit

Provided that such an affidavit shall be in the form and manner as

prescribed under Order VI of Rule 15A of CPC.

 This section must be read with Order IV, VI & VII of the first schedule.

 Rule 1 of Order IV of CPC deals with the institution of a suit by the

commencement of a plaint. It states that -

(1) Every suit shall be instituted by presenting plaint in duplicate to the

Court or such officer as it appoints in this behalf.

(2) Every plaint shall comply with the rules contained in Orders VI and VII,
so far as they are applicable.

(3) The plaint shall not be deemed to be duly instituted unless it complies
with the requirements specified in sub-rules (1) and (2).

 Rule 2 of Order IV of CPC deals with the registration of suits. It states

that the Court shall cause the particulars of every suit to be entered in
a book to be kept for the purpose and called the register of civil
suits. Such entries shall be numbered every year according to the order
in which the plaints are admitted.

4. WHAT IS DOCTRINE OF RES SUB JUDICE

 Section 10 of the Code of Civil Procedure, 1908 (CPC) deals with
the concept of Res sub judice. Res Sub judice is a Latin maxim which
means under judgement. It implies that where the same subject matter
is pending in a Court of law for adjudication between the same parties,
the other court is barred to entertain it.
 Section 10 of CPC
 This section states 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, or between
parties under whom they or any of them claim litigating under the
 same title where such suit is pending in the same or any other Court in
India have jurisdiction to grant the relief claimed, or in any Court
beyond the limits of India established or continued by the Central
Government and having like jurisdiction, or before the Supreme Court.
 Explanation - The pendency of a suit in a foreign Court does not
preclude the Courts in India from trying a suit founded on the same
cause of action.
 This Section applies only to suits and not to applications and
complaints. The term suit in this section includes appeal.
 The words ‘matter in issue’ means the entire matter in controversy in
the suit and not merely one of the several issues.
 Object of Section 10 of CPC
 The object of Section 10 of CPC is to prevent the courts of concurrent
jurisdiction from simultaneously entertaining and adjudicating upon
two parallel litigations in respect of the same cause of action, the same
subject matter and the same relief.
 It also aims to avoid frivolous litigation and thus save the judicial
system from the wastage of time and money of the State and of the
litigant.
 Conditions for Section 10 of CPC
For the application of Section 10 of CPC, the following conditions must
be satisfied:
 There must be two suits, one previously instituted and the other
subsequently instituted.
 The matter in issue in the subsequent suit must be directly and
substantially in issue in the previous suit.
 Both the suits must be between the same parties or their
representatives.
 Such parties must be litigating under the same title in both the suits.
 The previously instituted suits must be pending in the same court in
which the subsequent suit is brought or in any other court in India or
beyond the limits of India having the like jurisdiction.
 The Court in which the previous suit is instituted must have
jurisdiction to grant the relief claimed in the subsequent suit.
 Section 10 of CPC Only Bars the Trial
 This Section does not bar the institution of a suit, but only bars the
trial.
 The subsequent suit therefore cannot be dismissed by the court but is
required to be stayed. In certain cases, it is necessary for the plaintiff
to file the second suit.
 Inherent Power to Stay
 The provisions contained in Section 10 are mandatory and no discretion
is left with the court.
 The order to stay proceedings in the subsequent suit can be made at
any stage.
 When there is a case for the application of Section 10 of CPC, recourse
to the inherent powers under Section 151 of CPC is not justified.
 Effect of Contravention
 A decree passed in contravention of Section 10 of CPC is not a
nullity and therefore cannot be disregarded in execution proceedings.
 This Section lays down a rule of procedure, pure and simple, which can
be waived by a party.
 Mere filing of an application under Section 10 does not in any
manner put an embargo on the power of the court to examine the
merits of the matter.
 Case Laws
 In the case of Indian Bank v. Maharashtra State Co-operative Marketing
Fed. Ltd. (1998), the Supreme Court held that the rule laid down in
Section10 of CPC applies to trial of a suit and not the institution thereof.
 In the case of Ragho Prasad Gupta v. Shri Krishna Poddar (1969), the
Supreme Court held that the Doctrine of Res Sub Judice will not
apply when the matter in issue in a subsequent suit is completely
different from the suit that was instituted initially.

5. GROUNDS FOR REJECTION OF PLAINT

 In India, the Code of Civil Procedure (CPC) governs the conduct of civil
suits. Order VII Rule 11 of the CPC lays the foundation for rejection of
plaints. This rule outlines six primary grounds for dismissal, but it also
includes a crucial caveat – the list is not exhaustive. Courts retain the
discretion to reject plaints on other grounds as well, provided they are
justified in law.
 Absence of Cause of Action
A fundamental requirement for any civil suit is the existence of a legal
wrong. The plaint must establish a cause of action, meaning the facts
described constitute a breach of a legal duty owed by the defendant to
the plaintiff.
For example, if you sue a neighbour for playing loud music
occasionally, it might not be enough to establish a cause of action
under noise pollution laws. There may need to be a pattern of
unreasonable disturbance.
 Undervaluation of Suit
The value of the claim determines the court fees payable. If the
plaintiff undervalues the claim to minimise court fees, the court may
reject the plaint. The court can assess the proper valuation based on
the facts presented and relevant legal principles.
 Plaint not Properly Stamped
 Similar to court fees, court stamps are required based on the value of
the claim. An improperly stamped plaint can be rejected, ensuring the
court receives the appropriate revenue for processing the case.
 Barred by Law
Certain civil suits may be barred by specific legal provisions, such as
limitation periods. For instance, if the law mandates filing a personal
injury claim within a year of the incident, a plaint filed after that
timeframe might be rejected on the grounds of being time-barred.
 Plaint not Filed in Duplicate
The court needs a copy of the plaint for its records and another copy to
serve on the defendant. Failure to file the plaint in duplicate can lead to
rejection.
 Non-Compliance with Order VII Rule 9
This rule dictates the essential information a plaint must contain.
Elements like details of the parties, the cause of action and the relief
sought are crucial. If the plaint lacks these essential details, the court
might reject it.

6. DISTINGUISH BETWEEN DECREE ORDER AND JUDGEMENT

 The legal process in civil matters is complex and different

terminologies are used to describe various judicial decisions.
Understanding the distinction between Order, Decree and Judgement is
essential, as these terms serve as foundational concepts within
the Code of Civil Procedure, 1908 (CPC).
Each of these terms has its own legal significance, application and
interpretation and they are all central to the adjudication of civil
disputes.
1) A Judgement is defined under Section 2(9) of the CPC as “the
statement given by the judge on the grounds of a decree or order.” In
simpler terms, a judgement is the judge’s reasoning behind the court’s
final decision in a civil suit. It is the final expression of the court’s
opinion on the matter after hearing the arguments, examining the
evidence and considering the applicable laws. A judgement is delivered
after the court has heard both parties and it forms the basis for issuing
a decree or order. A judgement must include a concise statement of
the facts of the case, the points for determination, the decisions on
those points and the reasoning behind those decisions.
A judgement explains the reasons for the court’s decision and serves
as the basis for a decree or order.

2) A Decree is defined under Section 2(2) of the CPC as the formal

expression of an adjudication by a civil court, which conclusively
 determines the rights of the parties in relation to all or any of the
matters in controversy in a suit. Simply put, a decree is the official
declaration of the court’s decision regarding the rights and obligations
of the parties involved in a lawsuit. A decree is issued after the
judgement has been delivered and it can be either preliminary or final.
A decree must be formally drawn up and must align with the
judgement passed by the court. A decree is the formal expression of
the court’s decision that conclusively determines the rights of the
parties in a suit.

3) An Order is defined under Section 2(14) of the CPC as the formal

expression of any decision of a civil court which is not a decree. Orders
are issued by courts in response to applications made by parties during
the course of a suit or proceeding. Unlike decrees, which conclusively
determine the substantive rights of parties, orders typically deal with
procedural matters or interlocutory decisions. An order is a formal
expression of the court’s decision that does not qualify as a decree and
typically addresses procedural or interlocutory matters.