Professional Documents
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Code of Civil Procedure, 1908
TABLE OF CONTENTS
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
INTRODUCTION
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
Law1.
In M.C Setalvad‘s 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 origin2‖.
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 law3.
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.4 It cannot be allowed to occasion injustice or go against good conscience.
1
Manohar Lal Chopra Vs. Hiralal AIR 1962 SC 527
2
Byram Pestonji Gariwala Vs. Union Bank of AIR 1991 SC 2234.
3
Sayad Mohamad Baker El Edroos Vs. Abdul Habib Hassan Arab (1998) 4 SCC 343 at 349.
4
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 litigant‘s rights.5
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.6
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 litigation7.
5
1993 Punj LJ 745(DB)
6
Benjamin Mc Nbb Vs. . (1942) 318 332 : 87 Law Ed 819
7
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.8
Applicability
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.10 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
satisfaction.
8
Bihari Choudhary Vs. State of Bihar AIR 1984 SC 1043.
9
Ravalu Subba Rao Vs. Commr. Of Income Tax, Madras (1956) SCR 577
10
Savitri Takurain Vs. Savi AIR 1921 PC 80.
Code of Civil Procedure, 1908
11
Raghunath Das Vs. Union of AIR 1969 SC 674.
12
Shiv Shakthi Co-op Housing Society Vs. Swaraj Developers AIR 2003 SC 2434.
13
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 courts14.
Kinds of Jurisdiction
A limitation on the jurisdiction of a civil court may be of four kinds. These are as follows–
(i) Territorial Jurisdiction – 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 Jurisdiction – 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 jurisdiction15. 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
amount.
(iii) Jurisdiction 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 Jurisdiction – 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 jurisdiction16.
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 ceremonies17.
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 disputes18.
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.22
Doctrine of Res Judicata [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
cause)
(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 Judicata 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
expenses23.
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 Judicata
1. A previous suit in which the matter in issue directly and substantially should have been
decided.
2. A competent Court of Civil jurisdiction should have decided it.
3. It should have been decided on merits and final decision should have been made after
hearing.
4. It should contain directly and substantially the same matter in issue.
22
State of Punjab vs. M/s.Geetha Iron and Brass. AIR 1978 Sc 1608.
23
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-judicata24.
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 stage25.
Kinds of Res-judicata: There are two kinds of Res-judicata namely; Actual Res-judicata and
Constructive Res-judicata26.
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 issue27.
24
Mulla CPC, 15th Edn. P.587
25
AIR 1982 SC 83
26
27th Law Commission Report, Page 6
27
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 court29.
4. Section 18 – Place for institution of suits where local limits of jurisdiction of courts are
uncertain
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 suit30.
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
Courts.
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 plaintiff‘s 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 place31.
28
Anil Nandwani, Law of Civil Procedure in India, 1st ed.2006, Allahabad Law Agency, Faridabad.
29
AIR 1954 SC 340
30
AIR 1988 SC 1636
31
AIR 1984 SC 1264
Code of Civil Procedure, 1908
INSTITUTION OF SUIT
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 affidavit32.
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 claimed33
“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 not34.
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
32
AIR 1967 Mys 217
33
C.K Takwani, Civil Procedure, 5th ed.2003, Eastern Book Company, Lucknow.
34
(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
plaintiffs.35
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 liability36.
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 essential37, 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.
35
M.P Jain, The Code of Civil Procedure, 1st ed. 2004, Wadhwa and Company, Nagpur.
36
AIR 1972 Cal 320
37
AIR 1973 Bom 358
Code of Civil Procedure, 1908
PLEADING
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 answer38.
―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 claim39.
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 plaintiff‘s 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 defendant‘s pleadings. The plaintiffs written and the
defendant‘s additional written statement are termed supplemental pleadings40.
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.
2. It must contain only material facts on which the party pleading relies for his claim or
defence.
38
AIR 1934 PC 130
39
Sarkar, Code of Civil Procedure, 10th ed.2002, Vol.2, Wadhwa and Company, Nagpur
40
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 proved41.
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 opponent‘s 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)42.
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 trial43."
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
41
AIR 1987 SC 1242
42
AIR 1999 SC 1128
43
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 litigations44.
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
parties45."
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 Singh46, 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
44
AIR 1956 SC 593
45
AIR 1953 SC 235
46
(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 Das47, 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
proceedings.
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 Others48 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
47
(2008) 8 SCC 511
48
(2008) 3 SCC 717
Code of Civil Procedure, 1908
49
(2006) 4 SCC 385
50
(2009) 10 SCC 84
51
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 copy52.
• 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 are53.
• 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 pleader54.
52
AIR 1967 SC 96
53
AIR 2007 SC 1812
54
AIR 1962 SC 633
Code of Civil Procedure, 1908
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
55
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 embarrassing56.
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.
56
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.57
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 just58.
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 plaintiff59.
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 circumstances60.
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.
57
AIR 1967 SC 878
58
AIR 1953 SC 235
59
AIR 1970 SC 1059
60
AIR 1993 SC 1120
Code of Civil Procedure, 1908
61
AIR 1974 SC 1178
Code of Civil Procedure, 1908
(g) Both the parties must fill in the defendant‘s claim to set-off, the same character as they fill
in the plaintiff‘s 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 plaintiff‘s 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.
62
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
defendant63.
(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
postponement64.
(iii) Where only the defendant appears – The Court shall make an order that the suit be
dismissed,
unless the defendant admits the claim or part thereof, in which case the Court shall pass a
decree against the defendant upon such admission, and, where 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.
63
AIR1934 ALL 163
64
AIR 1927 MAD 127
Code of Civil Procedure, 1908
FIRST HEARING
Issues
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 pleadings65.
Framing of Issues
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 issues66.
Kinds of Issues
(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.
65
AIR 1956 SC 231
66
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‖.
AFFIDAVIT
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 Order68.
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.
67
AIR 1957 SC 49
68
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 same69.
69
AIR 1961 TRIP 23
70
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
infructuous.
• 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.
71
AIR 1920 PAT 131
Code of Civil Procedure, 1908
Decree
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. It 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
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 matters73. 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.
Order
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 orders74.
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
72
AIR 1992 CAL 12
73
AIR 1982 KANT 179
74
AIR 1988 P&H 192
Code of Civil Procedure, 1908
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
plaint;
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.
CONCLUSION
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 Rao‘s recommendations
for a thorough amendment to the provisions of the ‗Code‘ still remain unheard for the
legislators.
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.
found place in the subsequent amendments, keeping the Code open for criticisms. Justice
Rao‘s 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
BIBLIOGRAPHY:
STATUTES/RULES
1. The Code of Civil Procedure, 1908
BOOKS
1. P.K.Majumdar, COMMENTARY ON THE CODE OF CIVIL PROCEDURE, 1908,
Edition 5, Orient Publishing company.
2. Takwani, C. K., CIVIL PROCEDURE, Edition 6, Eastern Book Company, Lucknow
3. Vol 2, Mulla, THE CODE OF CIVIL PROCEDURE, 17th edition, B.M. Prasad,
Lexis Nexis, Butterworth.
4. Vol. 2, Banerjee, A. K., COMMENTARY ON CODE OF CIVIL PROCEDURE,
1908‘, Edition-2007, Dwivedi & Company, Allahabad.
5. Vol. 3, Doabia, T. S. Justice, ‗CODE OF CIVIL PROCEDURE‘, Edition 13,
LexisNexis Butterworths Wadhwa Nagpur.
6. Anil Nandwani, Law of Civil Procedure in India, 1st ed.2006, Allahabad Law
Agency, Faridabad.
7. M.P Jain, The Code of Civil Procedure, 1st ed. 2004, Wadhwa and Company, Nagpur.
8. Sarkar, Code of Civil Procedure, 10th ed.2002, Vol.2, Wadhwa and Company,
Nagpur
9. Dr.T.P.Tripathi, The Code of Civil Procedure, 2nd Edition, 2008, Allahabad Law
Agency.
10. B.M.Prasad, The Code Of Civil Procedure, 18th Edition, 2011, Volume 1, Lexis
Nexis Butterworths.
11. Basu, The Code of Civil Procedure, 10th Edition, 2007, Volume 1, Ashoka Law
House. Karia, Lata, 2007, ―Doctrine of Res-judicata‖, thesis PhD, Saurashtra
WEB SITES
1. www.indiankanoon.org/search/?...suits%20by%20an%20indigent%20person
2. http://www.legalservicesindia.com/article/article/suits-by-indigent-person-1279-1.html
3. http://www.legalblog.in/2011/07/indigent-person-under-code-of-civil.html
4. www.studymode.com
5. http://www.legalblog.in/2011/07/indigent-person-under-code-of-civil.html