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Code of Civil Procedure, 1908


Adv. Swayambhu Mishra

Riyanka Roy Choudhury
(2011/BBA LL.B/060)
Code of Civil Procedure, 1908

Introduction .................................................................................................................................................. 2
Historical Background of CPC ........................................................................................................................ 3
Jurisdiction .................................................................................................................................................... 4
Res Judice and Res Judicata .......................................................................................................................... 6
Place of suing ............................................................................................................................................... 8
Institution of suit ........................................................................................................................................ 10
Pleadings ................................................................................................................................................... 13
Plaint and Written Statement ..................................................................................................................... 16
Ex-parte ...................................................................................................................................................... 18
First Hearing ............................................................................................................................................ 21
Discovery Inspection and Production of Documents ................................................................................ 25
Interim Order(injunctions) ......................................................................................................................... 28
Trial ..32
Judgement and Decree ..34
Conclusion ................................................................................................................................................... 35
Bibliography ................................................................................................................................................ 36

Code of Civil Procedure, 1908
Indian legal system is the product of history. Rooted in our soil, it is nurtured and nourished
by our culture, languages and traditions, fostered and sharpened by the genius, the quest for
social justice, and above all reinforced by the legacy. Our system is never a replica of the
English Common Law. But it is inspired, strengthened, guided and enriched by the basic
concepts of justice, equity and good conscience which are indeed the hallmark of Common
In M.C Setalvads words, . the Common Law of England with its statutory
modifications and the doctrines of the English Courts of equity has deeply coloured and
influenced the laws and the system of judicial administration of a whole sub-continent
inhabited by nearly four hundred million people. The law and the jurisprudence of this vast
community and its pattern of judicial administration are in many matters different from those
of in which they had their roots and from which they were nurtured. Yet they bear the
unmistakable impress of their origin

Rights and obligations of the members of a civilized society are meaningless unless
determined and enforced. Law ably classifies itself into two; substantive law and adjective or
procedural law. Substantive law determines the rights and liabilities of the parties, confers
legal status, imposes and defines the nature and extent of legal duties. Procedural law on the
other hand, prescribes the practice, procedure and machinery for the enforcement or
recognition of the legal rights and liabilities by a court of law or other recognised /
constituted tribunal. Procedural law always remained as subservient to substantive law.
Nothing can be given by a procedural law which is not sought to be given by a substantive
law and nothing can be taken away by a procedural law, which is given by a substantive law

Procedural law is aimed to shorten litigation and grant expedient justice, its object is to grant
final justice and not to weave spider web to entangle for immemorial time, the parties into
litigation for occasioning proverbial delays. Procedural law is not a tool to refuse a just relief
for a mere infraction of a rule of procedure which in no way cause prejudice to the
complaining party.
It cannot be allowed to occasion injustice or go against good conscience.

Manohar Lal Chopra Vs. Hiralal AIR 1962 SC 527
Byram Pestonji Gariwala Vs. Union Bank of AIR 1991 SC 2234.
Sayad Mohamad Baker El Edroos Vs. Abdul Habib Hassan Arab (1998) 4 SCC 343 at 349.
Nani Gopal Mitra Vs. State of Bihar AIR 1970 SC 1636.
Code of Civil Procedure, 1908
Legal niceties cannot be permitted to hang the sword of uncertainty on the litigants rights.

Code of Civil Procedure, is an example of adjective law which forms an indispensable part of
the legal mechanism. It operates as an essential tool for enforcing legal rights and claims, for
redressing or preventing legal wrongs, for asserting legal defences and also for the other
ancillary purposes, with its inherent complexity and occasional technicalities. History of
liberty has largely been the history of observance of procedural safe guards.

Code of Civil Procedure represents the orderly, regular and public functioning of the legal
mechanism, and also the operation of due process of law. It sustains and secures every
person, his life, liberty, reputation, livelihood and property, and is keen to ensure that he does
not suffer any deprivation of his rights, except in the due process of law.

The words, civil and procedure are words of classification. They define the residuary
nature of civil procedure by demarcating it from other parts of law, which together with civil
procedure, go to form the legal system. The word, civil law would denote the whole law of
the State governing the relations among its citizens inter se or between the State and its
subjects. Law of procedure may thus be defined as that branch of law which governs the
process of litigation

Century old CPC
The Code of Civil Procedure was first codified in 1859. Till then, the law in this important
branch was almost chaotic. There was no uniform enacted law applicable to the whole of
India. Presidency and Provincial Courts were governed by different Regulations. An earnest
attempt to consolidate the laws relating to civil procedure resulted in the legislation of the
Code of 1859. Since then it has been amended from time to time without affecting the basic
features of the Code. On the basis of the 14th Report of the Law Commission, in 1976 some
major amendments were made. Subsequently the Code underwent two major amendments,
Act No.46 of 1999 and Act 22 of 2002 on the basis of the Malimath Committee
recommendations. The objects behind such amendments were to ensure more expeditious

1993 Punj LJ 745(DB)
Benjamin Mc Nbb Vs. . (1942) 318 332 : 87 Law Ed 819
Shub Karan Bubna Vs. Sita Saran Bubna and others (2009) 9 SCC 689 at
Code of Civil Procedure, 1908
disposal of civil suits and proceedings consistent with the accepted principles of natural
justice and to simplify the procedure to a certain extent.

Objective of the Code, 1908
The Code of 1908 is aimed at consolidating and amending the laws relating to the procedures
of the courts of civil judicature. To consolidate means, to collate all the laws relating to a
particular subject under one Code and make it up-to-date, so that it can be applied to the
circumstances. The Code, being a consolidated one, incorporating all the laws relating to the
procedure to be adopted by the civil courts, its provisions are to be construed as exhaustive
with the matters dealt within it. But the reasonable view seems to be that since the legislature
is incapable of contemplating all the possible circumstances that may arise in future and to
provide a suitable procedure for them, in the absence of specific provisions to deal with such
situations, courts must be guided by the principles of justice, equity and good conscience
The Code reserves the courts power to make such orders as may be necessary to do justice or
to prevent the abuse of the process of court.

The Code of Civil Procedure, 1908 applies to all proceedings in a Court of civil judicature.
However, it does not affect any special or local law or any special form of procedure
prescribed by or under any other law for the time being in force.
Code applies to the
proceedings in the testamentary and intestate jurisdiction of the High Courts and Moffusil
courts, except as otherwise provided by the Indian Succession Act, proceedings under the
Hindu Marriage Act, subject further to the other provisions of that Act and to such Rules as
may be framed by the High Courts, and the proceedings before the revenue courts. Thus
Code is concerned almost wholly from the very institution of a suit in a civil court, the
progress of its trial, ending with orders or a decree and its further stages, such as appeal,
reference, review, revision till the execution of such decree / order and recording the

Bihari Choudhary Vs. State of Bihar AIR 1984 SC 1043.
Ravalu Subba Rao Vs. Commr. Of Income Tax, Madras (1956) SCR 577
Savitri Takurain Vs. Savi AIR 1921 PC 80.

Code of Civil Procedure, 1908
Scheme of the Code
Civil Procedure is both a science and an art governing resolution of civil disputes in the
hierarchy of proceedings from the trial court up to the highest courts of appeal. A clear grasp
and appreciation of the various contours of these procedural provisions enables both bench
and the bar to get such proceedings decided effectively, appropriately and at the earliest for
the benefit of the litigant public. Any entanglement in the processual provisions would lead to
protracted litigation, pernicious effects and anguish

Code whether retrospective
A procedural law is retrospective in operation and its provisions apply to the proceedings
pending at the time of its having come into force. If by a statutory change, the mode of
procedure is altered, the parties are to proceed according to the altered mode, without
exception, unless there is different stipulation
. But the procedure correctly adopted and
concluded under the previous law cannot be reopened for the purpose of applying a new

Section 3 of the civil procedure code lays down the structure of the codes in below manner
High courts
District courts
Civil courts
The High Court stands at the head of the states judicial administration. Each state is divided
into judicial districts presided over by a district judge, who is the highest judicial authority in
a district. Below him, there are courts of civil jurisdiction, known in different states as
munsifs, sub-judges, civil judges and the like. As compared to this, criminal judiciary
comprises of sessions and assistant sessions judge, chief judicial magistrate and judicial
magistrates of first and second class. In cities there are metropolitan and chief metropolitan
Jurisdiction of Courts and Venue of Suits

Raghunath Das Vs. Union of AIR 1969 SC 674.
Shiv Shakthi Co-op Housing Society Vs. Swaraj Developers AIR 2003 SC 2434.
Law Commission of 14th Report P.475; 27th Report Pp.21-22
Code of Civil Procedure, 1908
Jurisdiction may be defined to be the power or authority of a court to hear and determine a
matter brought before it for adjudication and exercise any judicial power in relation to it. The
limit of the authority is imposed by the statute.
If the court has no jurisdiction, consent of parties cannot confer that jurisdiction. But if two or
more courts have jurisdiction to try the suit, it is open to the parties to select a particular court
and exclude other courts
Kinds of Jurisdiction
A limitation on the jurisdiction of a civil court may be of four kinds. These are as follows
(i) Territorial J urisdiction A territorial limit of jurisdiction is fixed by the Government. For
e.g. the district judge has to exercise jurisdiction within his district and not outside it. The
High Court has jurisdiction over the territory of a state within which it is situate and not
beyond it.
(ii) Pecuniary J urisdiction Section 6 of the Code provides that a court will have
jurisdiction only over those suits the value or amount of the subject matter of which does not
exceed General and Commercial Laws the pecuniary limits of its jurisdiction
. Some courts
have unlimited pecuniary jurisdiction e.g. High Courts and District Courts have no pecuniary
limitations. But there are other courts having jurisdiction to try suits up to a particular
(iii) J urisdiction as to subject matter The jurisdiction to decide certain matters by certain
court is limited by the statute; e.g. a small cause court cannot try suits for specific
performance of a contract, redemption of mortgage etc. Similarly in respect of divorce cases,
only District or subordinate court judge has the jurisdiction.
(iv) Original and Appellate J urisdiction In the exercise of original jurisdiction, a court
entertains and decides suits and in its appellate jurisdiction, it entertains and decides appeals.
Munsif Courts, Courts of Civil judges and Small Cause Courts possess original jurisdiction
only; while District Courts and High Courts have original as well as appellate jurisdiction

Suits of Civil Nature [Section 9]
As per Section 9 of the code, a civil court has jurisdiction to try a suit if two conditions are
The suit must be of civil nature

14 AIR 1966 SC 1718
15 AIR 1961 SC 149
16 Raghunath Das vs. Union of AIR 1969 SC 674.
Code of Civil Procedure, 1908
The cognizance of such a suit should not have been expressly or impliedly barred.
The explanation appended to the section provides that a suit in which the right to property or
to an office is contested is of civil nature, notwithstanding that such right may depend entirely
on the decision of questions as to religious rites or ceremonies
A suit is expressly barred if legislation expressly says so and is impliedly barred if a statute
creates new right or liability and prescribes a particular tribunal for its assertion. When a right
is created by a statute and a special tribunal is provided for its enforcement, the ordinary Civil
Court would have no jurisdiction to entertain such disputes

The doctrine of Res-subjudice is contained in section 10 of C.P.C declares that no court
should proceed with the trial of any suit in which the matter in issue is directly and
substantially in issue in a previously instituted suit between the same parties and the court
before which the previously instituted suit is pending is competent to grant the relief
Res-subjudice Meaning Res-subjudice technically means that a matter in issue, which is
already under the judicial scrutiny, then other proceeding of trial in-respect of same matter in
issue shall not be allowed. However, the pendency of a suit in a foreign court does not
preclude the Courts in India from trying a suit founded on same cause of action
Essential Conditions of Res-subjudice
For applicability of Res-subjudice the following conditions must be present:
1. The matter in issue and in subsequent suit must be the same, which is directly and
substantially in issue in previously instituted suit.
2. The previously instituted suit must be pending in the same Court or in any other Court
3. The previously instituted suit must be pending in a competent Court of civil jurisdiction.
4. The parties in both the suits must be the same
If these conditions are fulfilled, the later suit shall be stayed till the disposal of earlier suit, the
findings of which operate as res judicata on the later suit. The principles of res judicata are
given in section 11.
Object of Res-subjudice

17 AIR 1995 SC 2001
State of Punjab vs. M/s.Geetha Iron and Brass Works Ltd Bihari Choudhary Vs. State of Bihar AIR 1984 SC
AIR 1998 SC 1952
Law Commission of 14th Report P.475; 27th Report Pp.21-22
AIR 1997 Bom 186
Code of Civil Procedure, 1908
The object of Res-subjudice is to prevent Courts of concurrent jurisdiction from trying two
parallel suits, in respect of the same matter simultaneously. The purpose is also to avoid
conflict of decision. It merely says that the trial cannot be proceeded with.

Doctrine of Res J udicata [Section 11]
Res judicata is the Latin term for a matter already judged, and refers to the legal doctrine
meant to bar continued litigation of cases that have already been decided between the same
parties. The doctrine of res judicata is based on three maxims
(a) Nemo debet lis vaxari pro eadem causa (no man should be vexed twice for the same
(b) Interest republicae ut sit finis litium (it is in the interest of the state that there should be an
end to a litigation); and
(c) Re judicata pro veritate occipitur (a judicial decision must be accepted as correct)
Res J udicata under Code of Civil Procedure, 1908
Section 11 of CPC embodies the doctrine of res judicata or the rule of conclusiveness of a
judgement. It enacts that once a matter is finally decided by a competent court; no party can
be permitted to reopen it in a subsequent litigation. In the absence of such a rule there will be
no end to litigation and the parties would be put to constant trouble, harassment and
The doctrine has been explained by Justice Das Gupta as follows - The principle of Res
Judicata is based on the need of giving finality to the judicial decisions. What it says is that
once a case is res judicata, it shall not be adjudged again. When a matter- whether on a
question of fact or a question of law has been decided between two parties in one suit or
proceeding and the decision is final, either because no appeal was taken to a higher court or
because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future
suit or proceeding between the same parties to canvas the matter again.
Essential Elements for Res J udicata
1. A previous suit in which the matter in issue directly and substantially should have been
2. A competent Court of Civil jurisdiction should have decided it.
3. It should have been decided on merits and final decision should have been made after
4. It should contain directly and substantially the same matter in issue.

State of Punjab vs. M/s.Geetha Iron and Brass. AIR 1978 Sc 1608.
AIR 1984 Ori 209
Code of Civil Procedure, 1908
5. It should have been contested between the same parties or their legal representatives, such
parties are indulging in litigation under the same title, with respect to the same cause of
action. If these conditions are fulfilled then subsequently/further instituted suit shall be liable
to be dismissed by the application of doctrine of Res-judicata
Object of Res-judicata
The object of Res-judicata is to prevent a question which has already been decided to be re-
agitated. A question finally decided at one stage of a proceeding cannot be re-agitated
between the same parties or their representatives at a subsequent stage
Kinds of Res-judicata: There are two kinds of Res-judicata namely; Actual Res-judicata and
Constructive Res-judicata
1. Actual Res-judicata It means a matter actually resolved by Court, between the parties in
earlier suit cannot be reopened through subsequent suit. In-other words an issue has been
alleged by one party and either denied or admitted, (expressly or impliedly) by other party in
earlier suit, second suit in respect of the same matter cannot be filed, and if any is filed, the
same would be hit by actual Res-judicata.
2. Constructive Res-judicata It means a matter which might and ought to have been made
ground of claim or defence in a former suit, but a party ignores it, then that issue shall be
deemed to have been a matter directly and substantially in issue in such suit. In other words
if a party had an opportunity that he ought to have taken a plea (as a plaintiff or defendant) if
he fails to do so, and the matter is decided, the decision will operate as Res-judicata in-
respect of all issues, which were taken, and which ought and might have taken/and second
suit would not lie for such issue

Section 15 to 20 of C.P.C. regulates the forum for the institution of suits.
1. Section 15 lays down that every suit shall be instituted in the Court of the lowest grade to
try it. The object of this provision is that the courts of higher grade should not be
overburdened with suits and to afford convenience to the parties and witnesses of such suits.9
2. Section 16 to 18 deals with suits relating to immovable property. As per Section 16, suits
regarding immovable property are instituted in the court within whose jurisdiction the
immovable property is situated

Mulla CPC, 15th Edn. P.587
AIR 1982 SC 83
27th Law Commission Report, Page 6
AIR 2004 SC 2339
Code of Civil Procedure, 1908
3. Section 17 Suits for immovable property situated within jurisdiction of different courts
A suit to obtain relief for wrong to immovable property which is situated within the
jurisdiction of different courts may be instituted in any court within the local limits of whose
jurisdiction any portion of the property is situated provided that the suit is within the
pecuniary jurisdiction of such court
4. Section 18 Place for institution of suits where local limits of jurisdiction of courts are
Where there is an apparent uncertainty regarding the jurisdiction of the court, the suit may be
filed in any of such courts after recording a statement to that effect by one of the courts to
entertain and dispose of the suit
5. Section 19 Suits for compensation for wrongs to person or movable Where a suit is
for compensation for wrong done to the person or to movable property, if the wrong was
done within the local limits of the jurisdiction of one Court and the defendant resides, or
carries on business, or personally works for gain, within the local limits of the jurisdiction of
another Court, the suit may be instituted at the option of the plaintiff in either of the said
6. Section 20 Other suits to be instituted where defendants reside or cause of action arises
Section 20 provides for all other cases not covered by any of the foregoing rules. All such
suits may be filed at plaintiffs opinion in any of the following courts:
(a) Where the cause of action wholly or partly arises; or
(b) Where the defendant resides, or carries on business, or personally works for gain
(c) Where there are two or more defendants, any of them resides or carries on business, or
personally works for gain, provided that in such case
(i) Either the leave of the court is obtained, or
(ii) The defendants, who do not reside or carry on business or personally work for gain at
that place, acquiesce in such situation.
Further, 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

Anil Nandwani, Law of Civil Procedure in India, 1st ed.2006, Allahabad Law Agency, Faridabad.
AIR 1954 SC 340
AIR 1988 SC 1636
AIR 1984 SC 1264
Code of Civil Procedure, 1908
A suit is a proceeding by which an individual pursues that remedy which the law affords. A
suit is a civil action started by presenting a plaint in duplicate to the Court containing concise
statement of the material facts on which the party pleading replies for his claim or defence. In
every plaint, the facts must be proved by an affidavit
The main essentials of a suit are
(a) The opposing parties i.e. parties to the suit
(b) The cause of action
(c) The subject matter of the suit; and
(d) The relief claimed

Every Suit Shall be instituted in Court of Lowest Grade Competent to Try It
In India, courts are hierarchically established. The lower courts have less powers than the
higher or superior courts. The Supreme Court of India is at the top of the hierarchy. There are
numerous lower courts but only one High Court per State and only one Supreme Court in the
Country. Thus, it is impractical to move superior courts for each and every trivial matter.
Further, the subject matter of a suit can also be of several kinds. It may be related to either
movable or immovable property, or it may be about marriage, or employment. Thus,
speciality Courts are set up to deal with the specific nature of the suit to deal with it
efficiently. Similarly, it would be inconvenient for the parties to approach a court that is too
far or is in another state. All these factors are considered to determine the court in which a
particular suit can be filed. CPC lays down the rules that determine whether a court has
jurisdiction to hear a particular matter or not
Parties to Suit
When a person has some dispute against another person he could move a civil suit before a
Court of Law. Here the persons in dispute are the parties to the suit. Thus the parties are
necessary element in a civil suit. In Civil Procedure generally there are two parties viz. the
plaintiff and the defendant. There may also be third parties who come incidentally to a suit.
The Plaintiff: A plaintiff is the one who moves a suit by filing a plaint. So he must have a
claim against another in law. He must be one who is competent to sue. He must have the legal

AIR 1967 Mys 217
C.K Takwani, Civil Procedure, 5th ed.2003, Eastern Book Company, Lucknow.
(1998) 2 QB 44
Code of Civil Procedure, 1908
right and locus standi to file the suit. Order 1 Rule 1 of CPC explains who may be joined as

The Defendant: A person who defends allegations and claims made against him is called the
defendant. He must be competent to be sued. Order 1 Rule 3 of CPC explains who all may be
joined as defendants.
Third Party: All parties who are interested in the suit or its outcome can file applications in a
Court of Law to add them as parties, either plaintiff or defendant. The defendant can also file
application to join another person as defendant who shares the liability
Misjoinder of Parties: In legal procedure (both civil and criminal), misjoinder refers to a
wrongful joinder. Misjoinder of parties consists in joining as plaintiffs or defendants persons
who have conflicting interests, or who were not involved in the same transaction or event.
Adding or the presence of a party who is unwanted or unnecessary to the proceedings is
called misjoinder of Party. As per Order 1 Rule 9 of CPC, no suit shall be defeated by reason
of misjoinder of a party. To avoid such misjoinder, two factors are essential
, viz.
1. The right to relief must arise out of the same act or transaction brought by plaintiffs/against
the defendants.
2. There is a common question of law or fact.
Cause of Action means every fact which, if cross-examined, would be necessary for the
plaintiff to prove in order to support his right to the judgement of the Court. It is a bundle of
essential facts which the plaintiff has to prove in order to sustain his action. Simply put, cause
of action is incident that is punishable by law. The cause of action must be antecedent to the
institution of suit.
Misjoinder of Causes of Action Misjoinder of causes of action consists in joining several
demands in one declaration which the law does not permit to be joined, to enforce substantive
rights of recovery, that are distinct and contradictory. Under CPC, only related counts can be
put together in a cause of action. Example for theft, the thief and people helping the thief
can be p part of a joint suit for the cause of action of theft. But a claim of theft and the claim
that his passport is invalid cannot be joined together and heard in the same suit.

M.P Jain, The Code of Civil Procedure, 1st ed. 2004, Wadhwa and Company, Nagpur.
AIR 1972 Cal 320
AIR 1973 Bom 358
Code of Civil Procedure, 1908
Pleadings are statements in writing drawn up and filed by each party to a case stating what
his contentions will be at the trial and giving all such details as his opponent needs to know in
order to prepare his case in answer
Pleading is defined in the Code of Civil Procedure as meaning a plain or written statement.
(O. VI, R. 1). Plaint is the statement of a claim, in writing and filed by the plaintiff in which
he sets out his cause of action with all necessary particulars. Written statement is the
statement of defence in writing and filed by the defendant in whom he deals with every
material fact alleged by the plaintiff in the plaint and also states any new facts which may be
in his favour adding such legal objections as he wishes to take to the claim
In some cases a plaintiff, having filed his plaint, may, with the leave of the court, file
statement, or the court may require him to file a written statement. In such cases the written
statement forms part of the plaintiffs pleadings. Similarly, there are cases in which the
defendant having filed his written-statement may, with the leave of the court, file an
additional written statement or the court may require him to do. In such cases additional
written statement also forms part of the defendants pleadings. The plaintiffs written and the
defendants additional written statement are termed supplemental pleadings
The whole object of the pleadings is to narrow the parties to definite issues and thereby to
diminish expense and delay, especially as regards the amount of testimony required on either
side at the hearing.
The rules regarding pleadings are as under:
1. A pleading must state facts and not law.
2. It must contain only material facts on which the party pleading relies for his claim or

AIR 1934 PC 130
Sarkar, Code of Civil Procedure, 10th ed.2002, Vol.2, Wadhwa and Company, Nagpur
AIR 1956 SC 231
Code of Civil Procedure, 1908
3. It must state only the facts on which the party pleading relies for his claim or defence, and
not the evidence by which they are to be proved
4. The facts must be in the form of a concise statement but in aiming at conciseness, precision
should not be sacrificed. The pleadings, when necessary, shall be divided into paragraphs,
numbered consecutively and each allegation being, so far as is convenient, contained in a
separate paragraph. Dates, sums and figures shall be expressed in figures.
5. Allegations in anticipation of the opponents answer should not be made. The pleading
should be confined to what is material at the present stage of the suit.
6. Facts necessary for the enforcement of a legal right or duty must be mentioned. Thus in a
suit for breach of contract on account of the negligence of the defendant, it has to be stated
specifically what kind of duty the defendant owed to the plaintiff and how was he negligent.
7. In case where the party pleading relies on any misrepresentation, fraud, breach of trust,
willful default or undue influence, particulars shall be stated in the plaint.
The person verifying the pleading shall also furnish an affidavit in support of his pleadings.
(O. VI, R. 15(4)
Amendment of pleadings
The Court may at any stage of the proceedings allow either party to alter or amend his
pleadings in such manner and on such terms as may be just, and all such amendments shall be
made as may be necessary for the purpose of determining the real questions in controversy
between the parties: Provided that no application for amendment shall be allowed after the
trial has commenced, unless the Court comes to the conclusion that in spite of due diligence,
the party could not have raised the matter before the commencement of trial
The above provision deals with amendment of pleadings. By Amendment Act 46 of 1999,
this provision was deleted. It has again been restored by Amendment Act 22 of 2002 but with
an added proviso to prevent application for amendment being allowed after the trial has
commenced, unless the Court comes to the conclusion that in spite of due diligence, the party
could not have raised the matter before the commencement of trial. The proviso, to some

AIR 1987 SC 1242
AIR 1999 SC 1128
AIR 1934 Cal 54
Code of Civil Procedure, 1908
extent, curtails absolute discretion to allow amendment at any stage. Now, if application is
filed after commencement of trial, it must be shown that in spite of due diligence, such
amendment could not have been sought earlier. The purpose and object of Order VI Rule 17
of the Code is to allow either party to alter or amend his pleadings in such manner and on
such terms as may be just. Amendment cannot be claimed as a matter of right and under all
circumstances, but the Courts while deciding such prayers should not adopt a hyper-technical
approach. Liberal approach should be the general rule particularly, in cases where the other
side can be compensated with costs. Normally, amendments are allowed in the pleadings to
avoid multiplicity of litigations

Inasmuch as the plaintiff-State of Madhya Pradesh has approached this Court invoking the
original jurisdiction under Article 131 of the Constitution of India, the Rules framed by this
Court, i.e., The Supreme Court Rules, 1966 (in short `the Rules) have to be applied to the
case on hand. Order XXVI speaks about "Pleadings Generally".
Among various rules, we are concerned about Rule 8 which reads as under:
"The Court may, at any stage of the proceedings, allow either party to amend his pleading in
such manner and on such terms as may be just, but only such amendments shall be made as
may be necessary for the purpose of determining the real question in controversy between the
The above provision, which is similar to Order VI Rule 17 of the Code prescribes that at any
stage of the proceedings, the Court may allow either party to amend his pleadings. However,
it must be established that the proposed amendment is necessary for the purpose of
determining the real question in controversy between the parties.

This Court, while considering Order VI Rule 17 of the Code, in several judgments has laid
down the principles to be applicable in the case of amendment of plaint which are as follows:
(i) Surender Kumar Sharma v. Makhan Singh
, at para 5:
As noted hereinearlier, the prayer for amendment was refused by the High Court on two
grounds. So far as the first ground is concerned i.e. the prayer for amendment was a belated
one, we are of the view that even if it was belated, then also, the question that needs to be
decided is to see whether by allowing the amendment, the real controversy between the

AIR 1956 SC 593
AIR 1953 SC 235
(2009) 10 SCC 626
Code of Civil Procedure, 1908
parties may be resolved. It is well settled that under Order 6 Rule 17 of the Code of Civil
Procedure, wide powers and unfettered discretion have been conferred on the court to allow
amendment of the pleadings to a party in such a manner and on such terms as it appears to the
court just and proper. Even if, such an application for amendment of the plaint was filed
belatedly, such belated amendment cannot be refused if it is found that for deciding the real
controversy between the parties, it can be allowed on payment of costs. Therefore, in our
view, mere delay and laches in making the application for amendment cannot be a ground to
refuse the amendment."
(ii) North Eastern Railway Administration, Gorakhpur v. Bhagwan Das
, at para16:
Insofar as the principles which govern the question of granting or disallowing amendments
under Order 6 Rule 17 CPC (as it stood at the relevant time) are concerned, these are also
well settled. Order 6 Rule 17 CPC postulates amendment of pleadings at any stage of the
In Pirgonda Hongonda Patil v. Kalgonda Shidgonda Patil which still holds the field, it
was held that all amendments ought to be allowed which satisfy the two conditions:
(a) of not working injustice to the other side, and
(b) of being necessary for the purpose of determining the real questions in controversy
between the parties. Amendments should be refused only where the other party cannot be
placed in the same position as if the pleading had been originally correct, but the amendment
would cause him an injury which could not be compensated in costs."
(iii) Usha Devi v. Rijwan Ahamd and Others
at para 13:
Mr Bharuka, on the other hand, invited our attention to another decision of this Court
in Baldev Singh v. Manohar Singh. In para 17 of the decision, it was held and observed as
follows: (SCC pp. 504-05)
Before we part with this order, we may also notice that proviso to Order 6 Rule 17 CPC
provides that amendment of pleadings shall not be allowed when the trial of the suit has
already commenced. For this reason, we have examined the records and find that, in fact, the
trial has not yet commenced. It appears from the records that the parties have yet to file their
documentary evidence in the suit. From the record, it also appears that the suit was not on the
verge of conclusion as found by the High Court and the trial court. That apart,
commencement of trial as used in proviso to Order 6 Rule 17 in the Code of Civil Procedure
must be understood in the limited sense as meaning the final hearing of the suit, examination

(2008) 8 SCC 511
(2008) 3 SCC 717
Code of Civil Procedure, 1908
of witnesses, filing of documents and addressing of arguments. As noted hereinbefore, parties
are yet to file their documents; we do not find any reason to reject the application for
amendment of the written statement in view of proviso to Order 6 Rule 17 CPC which
confers wide power and unfettered discretion on the court to allow an amendment of the
written statement at any stage of the proceedings."
(iv) Rajesh Kumar Aggarwal and Others v. K.K. Modi and Others
, at paras 15 & 16:
The object of the rule is that the courts should try the merits of the case that come before
them and should, consequently, allow all amendments that may be necessary for determining
the real question in controversy between the parties provided it does not cause injustice or
prejudice to the other side.
Order 6 Rule 17 consists of two parts. Whereas the first part is discretionary (may) and leaves
it to the court to order amendment of pleading. The second part is imperative (shall) and
enjoins the court to allow all amendments which are necessary for the purpose of determining
the real question in controversy between the parties."
(v) Revajeetu Builders and Developers v. Narayanaswamy and Sons and Others
, at
para 63:
On critically analysing both the English and Indian cases, some basic principles emerge
which ought to be taken into consideration while allowing or rejecting the application for

Important Stages in Proceedings of a Suit-Plaint
A lawsuit begins when a complaint is filed with the court. The plaint consists of a heading
and title, the body of plaint and the relief(s) claimed. Every suit shall be instituted in the
Court of the lowest grade competent to try it
Documents Filed Along With Plaint
A plaint is the pleading of the plaintiff on which a suit is filed. In order to substantiate the
allegations and claims in the plaint there may be need of some documents. These documents
will help the plaintiff for a fair chance of success in the suit. There are some which are
undisputed and the non-production of these documents will not turn out to be fatal. But
failure to produce documents which are necessary will be fatal to the case of the plaintiff.

(2006) 4 SCC 385
(2009) 10 SCC 84
AIR 1960 SC 1309
Code of Civil Procedure, 1908
The rule with regard to production of documents along with the plaint is mentioned in Order
7 Rule 14 of the Code of Civil Procedure. Sub-Rule 1 of Rule 14 says that if the plaintiff
relies upon a document in his possession for supporting his claims, he shall enlist such
documents and produce along with the plaint when it is presented. Moreover, these
documents are to be filed in the court along with copy
If the documents are not filed by the plaintiff along with the suit, he will be precluded from
filing the same at any later stage. However these can be filed at a later stage with the leave of
the Court [Order 7 Rule 14(3)].
There is a provision to help the plaintiff in case the documents, which are very important for
supporting his claim, are not within his possession. Sub-Rule 2 says that the plaintiff can state
such documents in the plaint and wherever possible it shall be stated in whose possession or
power those documents are
In certain cases, especially in the case of Banks as plaintiffs, only certified copy of
documents need to be filed at the time of presentation. The original documents can be
produced later.
Documents filed along with the plaint are treated as part of the pleadings. In Civil Rules of
Practice in Rule 16(1) it is stated that every plaint or other proceeding shall at the foot
there of, contain a list of documents signed by the party or his pleader

Service of Summons in CPC
When a suit is instituted by the plaintiff the court orders to issue summons to the defendant.
This is to permit the defendant to appear and answer the claim of the plaintiff. This ensures a
fair trial.
(c) by such courier services as are approved by the Court; or
(d) by any other means of transmission of documents (including fax message or electronic
mail service) provided by the rules made by the High Court
(ii) Where the defendant resides in another State [Section 28] If the defendant is residing
in another state, the summons is served through a court i.e. the court in which the suit is
instituted issues the summons to the court in the jurisdiction of which the defendant resides
for it to be served upon him. Now the court to which the summons is sent shall proceed as if
it had been issued by such court and then return the summons to the court of issue together

AIR 1967 SC 96
AIR 2007 SC 1812
AIR 1962 SC 633
Code of Civil Procedure, 1908
with the record of its proceedings in this regard.
(iii) Where the acknowledgement to a summon contains an endorsement that the defendant
or his agent had refused to take delivery of the postal summons or had refused to accept the
summons, the Court issuing the summons shall declare that the summons had been duly
served on the defendant.
(iv) Where the Court is satisfied that the defendant is avoiding service of summon, or that
for any other reason the summons cannot be served in the ordinary way, the Court shall order
the summons to be served by affixing a copy in some conspicuous place in the Court-house,
and also upon some conspicuous part of the house (if any) in which the defendant is known
to have last resided or carried on business.
(a) Introduction
In legal dictionary, the word written statement means a pleading for defence. However, the
expression written statement has not been defined in the code; it is a term of specific
connotation ordinarily signifying a reply to the plaint filed by the plaintiff. In other words, a
written statement is the pleading of the defendant wherein he deals with every material fact
alleged by the plaintiff in his plaint and also states any new facts in his favour or takes legal
objections against the claim of the plaintiff.

(b) Explanation of Rules
R.1. - Written statement.
The defendant shall, within thirty days from the date of service of summons on him, present
a written statement of his defence.
Provided that where the defendant fails to file the 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 the
Court, for reasons to be recorded in writing, but which shall not be later than ninety days
from the date of service of summons

A defendant should, within 30 days from the service of summons on him, present a written
statement of his defence. The said period, however, can be extended up to 90 days, but for
reasons to be recorded for such extension.
A written statement should be drafted carefully and artistically. All the general rules of
pleading apply to a written statement also. Before proceeding to draft a written statement it is

AIR 1996 SC 729
Code of Civil Procedure, 1908
absolutely necessary to examine the plaint carefully. Like a plaintiff, a defendant may also
take a number of defences, either simply or in the alternative, even though they may be
inconsistent, provided they are maintainable at law and are not embarrassing

Court has power to condone non filing of written statement within 90 days.
Though a defendant is required to file written statement within 30 days after receipt of
summons and though the court can extend the time till 90 days, the court is not divested of
any power to fix further time for filing the written statement. It is well settled that this
cardinal principle of interpretation of law with an enactment has to be read as a whole and
then the entire section has to be read and thereafter the Act has to be interpreted section by
section. One Rule or one Section in the enactment cannot be a guiding factor for arriving at
the intendment of the legislature. The very fact that Rule 10 is re-introduced by Act 22 of
2002 by the Parliament would show that the Parliament never intended the Civil Court to
pronounce judgment immediately after the failure on the part of the defendant to file written
statement within 90 days.

Production of documents and list of documents.
Save as otherwise provided in Rule 8-A, where the defendant relies on any document
(whether or not in his possession or power) in support of his defence or claim for set-off or
counterclaim he shall enter such a document in a list, and shall (a) if a written statement is
presented, annex the list to the written statement (and where he claims a set-off or makes a
counterclaim based on a document in his possession or power, he shall produce it in court at
the time of presentation of the written statement and shall at the same time deliver the
document or copy thereof to be filed with the Written statement); and (b) if a written
statement is not presented, present the list to the court at the hearing of the suit.

2. New facts must be specially pleaded.
The defendant must raise by his pleading all matters which show the suit not be maintainable,
or that the transaction is either void or voidable in point of law, and all such grounds of
defence as, if not raised, would be likely to take the opposite party by surprise, or would raise

AIR 1952 SC 47
Code of Civil Procedure, 1908
issues of fact not arising out of the plaint, as, for instance, fraud, limitation, release, payment,
performance, or facts showing illegality.

The effect of the rule is, for reasons of practice and justice and convenience, to require the
party to tell his opponent what he is coming to the Court to prove, If he does not do that, the
Court will deal with it in one of two ways. It may say that it is not open to him, that he has
not raised it and will not be allowed to rely on it; or it may give leave to amend by raising it
and protect the other party. If necessary, by letting the case stands over. The rule is not one
that excludes from the consideration of the Court the relevant subject-matter for decision
simply on the ground that it is not pleaded. It leaves the party at the mercy of the Court and
the Court will deal with him as is just
Right of defendant to raise all pleas available to him. Suit for possession filed by plaintiff on
basis of sale-deed in his favour. Possession of property sought from one of the defendants.
The said defendant can raise all pleas available to him to defeat suit of plaintiff

3. Denial to be specific.
It shall not be sufficient for a defendant in his written statement to deny generally the grounds
alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact
of which he does not admit the truth, except damages.

4. Evasive denial.
Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but
answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it
shall not be sufficient to deny that he received that particular amount, but he must deny that
he received that sum or any part thereof, or else set out how much he received. And if an
allegation is made with diverse circumstances, it shall not be sufficient to deny it along with
those circumstances

5. Specific denial.
[(1)] Every allegation of fact in the plaint, if not denied specifically or by necessary
implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be
admitted except as against a person under disability.

AIR 1967 SC 878
AIR 1953 SC 235
AIR 1970 SC 1059
AIR 1993 SC 1120
Code of Civil Procedure, 1908
Specific Denial and deemed Admission.
Rule 3 of Order VIIIrequires that the defendant must deal specifically with each allegation
offact of which he does not admit the truth. Rule 5 provides that every allegation of fact in
the plaint, if not denied in the written statement shall be taken to be admitted by the
defendant, What this rule says is that any allegation of fact must either be denied specifically
or by a necessary implication or there should be at least a statement that the fact is not
admitted. If the plea is not taken in that manner, then the allegation shall be taken to be
The combined effect of Rules 3, 4 and 5 has been considered by Subba Rao ,J. (as he then
was) in the case of Badat & Co. v. East India Trading Co. in the following words:
"These three rules form an integral code dealing with the manner in which allegations of fact
in the plaint should be traversed and the legal consequences flowing from its non-compliance.
The written statement must deal specifically with each allegation of fact in the plaint and
when a defendant denies any such fact; he must not do so evasively, but answer the point of
substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be
admitted. In such an event, the admission itself being proof, no other proof is necessary."

Set-Off, Equitable Set-Off and Counter Claim
Set Off
Where in a suit for recovery of money by the plaintiff, the defendant finds that he also has a
claim of some amount against the plaintiff, he can claim a set-off in respect of the said
amount. The right of the defendant to claim set off has been recognised under Order 8, Rule 6
of the Code.
Essential Conditions: A defendant may claim a set-off, if the following conditions are
(a) The suit is for the recovery of money;
(b) The sum of money must be ascertained;
(c) Such sum must be legally recoverable;
(d) It must be recoverable by the defendant or by all the defendants, if not more than one;
(e) It must be recoverable by the defendant from the plaintiff(s);
(f) It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;

AIR 1974 SC 1178
Code of Civil Procedure, 1908
(g) Both the parties must fill in the defendants claim to set-off, the same character as they fill
in the plaintiffs suit. When a defendant pleads set-off, he is put in the position of the plaintiff
as regards the amount claimed by him. Where the plaintiff does not appear and his suit is
dismissed for default or he withdraws his suit and his suit is dismissed, it does not affect the
claim for a set-off by the defendant and a decree may be passed in his favour if he is able to
prove his claim.
Equitable Set-Off
Rule 6 deals with legal set-off only. It is always in respect of ascertained sum of money. In
addition to legal set-off, equitable set-off may be claimed by the defendants in respect of even
an unascertained sum of money, provided that both the cross-demands arise out of same
transactions or are so connected in the nature and circumstances that they can be looked upon
as parts of one transaction.
Rule 6A to 6G of Order 8 contain provisions regarding counter-claim. It may be defined as a
claim made by the defendant in a suit against the plaintiff. It is a claim independent of and
separable from plaintiffs claim which can be enforced by a cross section. Counter-claim can
be set up in respect of action accruing to the defendant either before or after the filing of the
suit but before the defendant has delivered his defence or before the time fixed for delivery of
his defence has expired. Counter-claim should not exceed the pecuniary limits of the
jurisdiction of the court. The counter-claim is to be treated as a plaint and the plaintiff can file
a written statement in answer to it.

The general provisions of CPC are based on the principle that both the parties must be given
an opportunity to be heard. The proceedings must not be held to the disadvantage of one
party. Order 9 lays down rules regarding the appearance and the consequences of non-
appearance of a party in the hearing
(i) Where neither party appears If both the parties do not appear when the suit is called on
for hearing, the Court may make an order that the suit be dismissed.
(ii) Where the plaintiff appears and the defendant does not appear
(a) when the summon was duly served The Court may make an order that the suit shall be
heard ex-parte.

AIR 1953 HYD 191
Code of Civil Procedure, 1908
(b) Where the plaintiff appears and the defendant does not appear when the summon was not
duly served the Court shall direct a second summons to be issued and served on the
(c) When summons served but not in due time the Court shall postpone the hearing of the
suit to future day to be fixed by the Court, and shall direct notice of such day to be given
to the defendant
(d) Where due to plaintiffs default the summons was not duly served or was not served in
sufficient time the Court shall order the plaintiff to pay the costs occasioned by the

(iii) Where only the defendant appears The Court shall make an order that the suit be
unless the defendant admits the claim or part thereof, in which case the Court shall pass a
decree against the defendant upon such admission, and, where only part of the claim has
been admitted, shall dismiss to the extent of remainder.
In Re: [Hochest Company Vs V S Chemical Company], the SC explained that an ex parte
decree is such decree in which defendant did not appear before court and the case is heard in
the absence of the defendant from the very beginning
Ex parte Decree (Order 9) As per Rule 6, if the defendant fails to appear before the court in
spite of a proper service of the summons, the court may proceed ex-parte and may pass a
decree in favour of the plaintiff. This is called an ex-parte decree.

Remedies available to the defendant against an ex parte decree
(i) Application to set aside the ex parte decree - As per Order 9, Rule 13, a defendant may
apply before the court that passed the decree to set it aside. If he satisfies the court that the
summons was not duly served or he was prevented by any other sufficient cause from
attending the hearing, the court shall make an order setting aside the decree. For example,
bona fide mistake as to the date or hearing, late arrival of train, etc. are sufficient causes for
absence of the defendant. Such an application for setting aside may be made within 30 days
from the date of decree as per Section 123 of Limitation Act.
(ii) Prefer an appeal against the decree under Section 96(2).
(iii) Apply for review under Order 47 Rule 1.

AIR1934 ALL 163
AIR 1927 MAD 127
Code of Civil Procedure, 1908
(iv) File a suit on the ground of fraud.
All the above remedies are concurrent and can be pursued concurrently.


I ssues
Issues are points of contest between the parties in a suit. The determination of issues has great
importance in the trial of a case, because it is issues and not the pleadings, which indicates
the appropriate evidence to be given. The object of settlement of issues is to determine the
material points in controversy between the parties.
Issues arise when a material proposition of fact or law is affirmed by one party and denied by
other party. Issues, whether raised from allegations in the pleadings or from other materials,
should not be inconsistent with pleadings; the court is bound to frame the proper issues
arising from the pleadings

Framing of I ssues
According to order 14, issues arise when a material proposition of fact or law is affirmed by
one party and denied by the other. Material propositions are those propositions of law or fact
which a plaintiff must allege in order to show a right to sue or a defendant must allege in
order to constitute his defence. Each material proposition affirmed by one party and denied
by the other shall form the subject of a distinct issue. At the first hearing of the suit the court
shall, after reading the plaint, and the written statements, if any, and after such examination
of the parties as may appear necessary, ascertain upon what material propositions of fact or of
law the parties are at variance, and shall thereupon proceed to frame and record the issues on
which the right decision of the case appears to depend. If the defendant at the first hearing of
the suit makes no defence, then according to order 14 rule 1, nothing in this rule requires the
court to frame and record issues
Kinds of I ssues
(i) Issues of Fact: Issue of fact means any issue, which has not been determined, by a rule of
law, but is to be answered, in accordance with the evidence laid before the court.
(ii) Issues of Law: Issue of law means that issue, which is to be answered in accordance with
the law and not in accordance with the facts or evidences that is laid before the court.

AIR 1956 SC 231
AIR 1958 PAT 133
Code of Civil Procedure, 1908
According to order 14, where issues both of law and fact arise in the same suit, and the court
is of the opinion, that the case or any part thereof may be disposed of on issues of law only, it
shall try those issues first, and for that purpose may if it thinks fit, postpone the settlement of
the issues of fact until after the issue of law have been determined.

Hearing of the Suit
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 the
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
Where there are several issues, the party beginning shall state his case and produce his
evidence in support of the issues which he is bound to prove.
The other party shall then state his case and produce his evidence (if any) and may then
address the Court generally on the whole case.
The party beginning may then reply generally on the whole case.
Any party may address oral arguments in a case, and shall submit if the Court so permits.
A copy of such written arguments shall be simultaneously furnished to the opposite party.
The Court shall fix such time limits for the oral arguments by either of the parties in a case,
as it thinks fit.

An Affidavit is a statement written and sworn to in the presence of someone authorized to
administer an oath, such as a notary public, in which the person swears to the notary that the
statement is true. Order XIX of CPC deals with Affidavit and there are three rules under the
said Order
RULE 1: Power to order any point to be proved by affidavit Any court may at any time for
sufficient reason order that any particular fact or facts may be proved by affidavit, or that the
affidavit of any witness may be read at the hearing, on such conditions as the court thinks
reasonable: Provided that where it appears to the court that either party bona fide desires the
production of a witness for cross examination, and that such witness can be produced, an
order shall not be made authorizing the evidence of such witness to be given by affidavit.

AIR 1957 SC 49
AIR 1967 ORI 13
Code of Civil Procedure, 1908
RULE 2: Power to order attendance of deponent for cross examination (1) upon any
application evidence may be given by affidavit, but the court may, at the instance of either
party, order the attendance for cross examination of the deponent. (2) Such attendance shall
be in court, unless the deponent is exempted from personal appearance in court or the court
otherwise directs.
RULE 3: Matters to which affidavits shall be confined (1) affidavit shall be confined to
such facts as the deponent is able of his knowledge to prove, except on interlocutory
applications, on which statements of his belief may be admitted; provided that the grounds
thereof are stated. (2) the costs of every affidavit which shall unnecessarily set forth matters
of hearsay or argumentative matter, or copies of or extracts from documents, shall (unless the
court otherwise directs) be paid by the party filing the same

Relief Under Civil Procedure Code
The Civil Court is empowered to give various types of relief and orders. All such relief and
order can be clubbed into two categories, viz.,
A. Initial / Temporary Orders
B. Final Orders
Initial/Temporary Order
There are also various types of temporary or initial orders, each of a different kind, and
having a different implication altogether. They are:
Temporary I njunction (Order 39)
Injunction can be described as a specific order which prohibits a wrongful act or wrongful
course which has already commenced or directs the things to be restored in their prior place.
The relief of injunction is granted in cases where compensation in money is not an adequate
relief. Section 36 of the Specific Relief Act,1963 provides that preventive relief is granted at
the discretion of the Court by inunction perpetual or temporary. Temporary injunctions are
regulated by Order XXXIX of the Code of Civil Procedure,1908 while perpetual injunctions
are regulated by the Specific Relief Ac
Generally civil suits take a long time to decide. In such cases, if the court feels that, till the
final order, the subject matter of suit is likely to be destroyed, it may grant TEMPORARY
IN JUNCTION, to protect the subject matter. These injunctions are as follows:
Restrain the defendant from damaging or disposing his property.

AIR 1961 TRIP 23
AIR 1977 NOC 120
Code of Civil Procedure, 1908
Restrain the defendant from dispossessing the plaintiff from disputed property.
Restraining the defendant from doing any other act which may make the whole suit
Restraining the defendant from committing any breach of contract.
Restraining the defendant from committing injury of any kind.
However later on during the pending of suit or at the time of final hearing the court may
revoke or modify the injunction granted.

I nterlocutory Order (O39, R 6-R10)
Interlocutory orders are also somewhat similar to temporary injunctions. Interlocutory order
only settles intervening matter relating to the cause. Such orders are made to secure some end
and purpose necessary and essential to the progress of case and generally collateral to the
issues to be settled by the court in the final judgement. These orders are also of different
natures, such as:
Interim Sale: Interim sale of any movable property may be ordered, if it is subject to
natural decay, such as vegetable etc.
Detention Preservation, Inspection etc. of subject matter of suit The court may order
Detention, preservation or inspection of property or documents.
Authorize any person to enter into any land or building, which is in the possession of other
party, for the purposes of detention, preservation or inspection etc.
To authorize any person to take samples.
Deposit of Money: If the subject matter of suit is money, or movable property, the court
may order
the person holding the money in dispute to be deposited in the court

Judgement: Section 2(9): Statement given by a judge on the grounds of a decree or order.
The judgement should have
Facts in brief
Issues for determination
Decision on the issues and

AIR 1920 PAT 131
Code of Civil Procedure, 1908
Reasons for the decision.
Note: judgement of a small causes court need not have the above details.
Judgement, decree and order look synonymous. But they are not so.
Decree holder Section 2(3): A person in whose favour a decree has been passed or an order
capable of execution has been passed.
Judgement debtor: Section 2(10): Any person against whom a decree has been passed or an
order capable of execution has been made.
In Re: [Kanahaiyalal Vs. Anup Kumar], 2003, where the High Court pronounced the
judgement after two years and six months, the judgement was set aside by the Supreme Court
observing that it would not be proper for a court to sit tied over a matter for such a long
period. As per Section 2 (9), Judgment means the statement given by the judge on the
grounds of a decree or order. Every judgment should contain - a concise statement of the
case, the points for determination, the decision thereon, the reasons for the decision.
In Re: [Balraj Taneja Vs Sunil Madan], 1999, SC held that a Judge cannot merely say Suit
decreed or Suit dismissed. The whole process of reasoning has to be set out for deciding
the case one way or the other.
As per Rule 6A of Order 20, the last part of the judgment should precisely state the relief
granted. Thus, a judgment is a state prior to the passing of a decree or an order. After
pronouncement of a judgment, a decree shall follow. The judgement must be dated and
signed by the judge.

A decree is the ruling of the court regarding the claims of the parties of the suit. For example,
in a suit between A and B, A may claim that a particular property P belongs him. After
hearing all the arguments, the court will rule in the favour of either A or B. The final decision
of the court regarding this claim i.e. whether the property belongs to A or B is a decree.
As per Section 2(2), a decree is the formal expression of an adjudication which, so far as
regards the Court expressing it, conclusively determines the rights of the parties with regard
to all or any of the matters in controversy in the suit. I t may be final or preliminary.
A decree is preliminary when further proceedings have to be taken up before the suit can be
completely disposed of. It is final when such adjudication completely disposes of the suit.
The following are the essential elements of a decree
1. There must be a suit.
2. There must be adjudication.
Code of Civil Procedure, 1908
3. There must exist substantive Rights of the parties.
4. There must be a Conclusive Determination of the Rights
5. The court must make a Formal expression in the manner provided by law for it to be a
The term decree does not include the following
Any adjudication from which an appeal lies as an appeal from an order.
Any order or decision of the dismissal of the suit for default

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

As per Section 2 (14), the formal expression of any decision of a civil court which is not a
Decree is Order. In a suit, a court may take certain decisions on objective considerations and
those decisions must contain a discussion of the matters at issue in the suit and the reasons
which led the court to pass the order. However, if those decisions fall short of a decree, they
are orders
Thus, there are several common elements between an order and a decree - both related to
matter in controversy, both are decisions given by the court, both are adjudications, both are
formal expressions.

Kinds of Suits
1. Suits upon bills of Exchanges, hundies or promissory notes;
2. Any suit filed by the plaintiff for recovery of a debt / money payable by the defendant
according to a written contract, or

AIR 1992 CAL 12
AIR 1982 KANT 179
AIR 1988 P&H 192
Code of Civil Procedure, 1908
3. In case of an enactment wherein the amount to be recovered is a fixed amount of money, or
a debt other than a penalty, or
4. A guarantee, where the claim against the principal is in respect of a debt or for money only
Institution of Summary Suits Order 37 rule 2 deals with the institution of summary suits.

Such suit may be instituted by presenting a plaint which shall contain ----
1. a specific averment to the effect that the suit is filed under this Order;
2. that no relief, which does not fall within the ambit of this rule, has been claimed in the
3. the following inscription, immediately below the number of the suit in the title of the suit,
namely:-(Under Order XXXVII of the Code of Civil Procedure,) Leave to Defend
Difference Between Summary Suit and Ordinary Suit
1. In the ordinary suit the defendant is entitled to defend the suit as of right. But in a summary
suit the is not entitled for the same except with the leave of the court.
2. In an ordinary suit the decree cannot be set aside by the trial court except in review. But in
the summary suit the trial court may set it aside under special circumstances
3. The summary suit must be brought within 1 year from the date on which the debt becomes
due and payable, whereas the period of limitation for suits for ordinary cases under
negotiable instrument is 3 years.

Code of Civil Procedure, 1908 withstood the test of time, worked well, did match the needs
of the changing society, served the system admirably, protected the interests of both the suitor
and the sued and remained as a truly admirable piece of legislation throughout the century.
Those who pleaded for radical reforms in procedural aspects could suggest only peripheral
changes. The Code is considered to be the bible among the legal fraternity.

Though the Code stood the test of time, several aspects need further scrutiny and
consideration. Various Amendments kept the Code intact with time and changing needs of
the litigant polity. Amendments aimed mainly at reduction of back logs, check on docket
explosion and for speedy disposal of cases. Several other aspects were lost sight of by the
legislators. They are, of course, simple in nature, but still keep the areas grey and require
chiseling with architectural symphony. Conflicting judicial pronouncements by various High
Courts made the situation more complex. Law Commission of India in its 144th Report
Code of Civil Procedure, 1908
sought to resolve the conflicts by various recommendations. It is sad to say that many of the
recommendations were unaccepted and not implemented. Those recommendations were
aiming at the removal of divergent interpretations to the very same provisions and to give the
Code a color of uniformity.
The time tested Code is not free from complexities and procedural hardships. Many
provisions do require consideration afresh in the light of the changing circumstances. Many
of them canvass divergent and conflicting views. Justice Jagannatha Raos recommendations
for a thorough amendment to the provisions of the Code still remain unheard for the
On the outset, one may conclude that the Code is complete in itself. The various provisions
spread over the Sections, Orders, Rules and Schedules seem to be self-sufficient and working.
But, in actual practice, the Code is poor in performance due to ambiguities, shortfalls and
omissions. It is worthy to consider some of those aspects with an analytical approach.

a. Dismissal for default in Sec.2 (2) is silent as to whether it is default of appearance or
default of any kind like failure to furnish particulars etc. There shall be an explanation that,
default includes default of appearance as well as any other kind of default.
b. Whether, in case of a Hindu Undivided family, the surviving coparcener will become a
legal representative Sec.2 (11) is silent about this aspect. There ought to have been an
Explanation to the effect that, when a coparcener in a Hindu Undivided family dies, a
surviving coparcener shall be a legal representative.
c. Sec.10 CPC stands for stay of suit. The words, in having jurisdiction to grant the relief
claimed is not free from divergent views. The words, having jurisdiction to grant the relief
whether connotes the relief claimed in the second suit or in the first suit? There shall be a
clarification in this aspect. It is recommended by the Committee that after the words relief
claimed, the words, in the suit subsequently instituted be added.
d. Sec.20 CPC stands for place of suing. Money suits can be filed, where the cause of action
arose or the debtor resides or carries on business. The basic principle of law is that the debtor
must seek the creditor. Can such a principle be imported to Sec.20 CPC is the question.

These are some of the recommendations by Justice Jagannatha Rao Commission on
amendments to the Code of Civil Procedure, 1908. The above mentioned recommendations
come well within the very first 20 Sections of the Code. More than 156 recommendations
were made by Justice Jagannatha Rao. It is very sad to see that none of his recommendations
Code of Civil Procedure, 1908
found place in the subsequent amendments, keeping the Code open for criticisms. Justice
Raos recommendations were the reflections of a practical lawyer. Majority of the
provisions of the Code remains unamended and they need reconsideration.

Code of Civil Procedure, 1908

1. The Code of Civil Procedure, 1908

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Lexis Nexis, Butterworth.
1908, Edition-2007, Dwivedi & Company, Allahabad.
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LexisNexis Butterworths Wadhwa Nagpur.
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Agency, Faridabad.
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