CPC
Appeal
1. Introduction
Appeal has not been defined in Civil
Procedure Code. It is, in fact, that
complaint, which is made to some superior
court against decision of subordinate court.
Basic object of appeal is to test soundness
of decision of lower court. Appeal may be
filed against original decree, or against
decree passed in appeal.
3. Meaning of Appeal
“Appeal means removal of a cause from
inferior to a superior court for the purpose
of a testing soundness of decision of an
inferior court”.
4. Definition of Appeal
“Judicial examination of the decision by a
higher court of the decision of the inferior
court”.
5. Right of Appeal
Every person has given right of appeal
against decree. However, right of appeal is
not an inherent right. Rather it can only be
availed where it is expressly granted by law.
Appeal lies against a decree and not against
a judgment.
6. Nature of Right of Appeal
Rights of appeal are substantive right and
they are not mere matters of procedure.
Right of appeal is governed by the law
prevailing at the date of the suit and not by
law that prevails at the date of the decision
or at the date of filling of the appeal.
7. Appeals from a decree
An appeal lies under section 96 CPC only
from a decree because the decree marks
the stage at which the jurisdiction of the
court which the appeal is made begins. As
such unless a decree is drawn up, no appeal
lies from a mere finding, but if the finding
amount to a decree, an appeal would lie.
8. Kinds of Appeal
Appeal may be classified not following two
kinds.
1st Appeal
Generally, first appeal shall lie from every
decree passed by any court exercising
original jurisdiction to the court authorizes
to hear appeal from the decisions of such
court.
Forum of Appeal:
First appeal lies to the District court, if the
value of the subject matter of the suit is
below Rs. Two lakhs, and to the high court
in all other cases.
Person who may Appeal:
1. parties to the suit
2. persons adversely affected by the
decree
Person otherwise competent to file appeal:
1. Legal representatives of the party 2.
Transferee of the interest of party,
3. A benamidar on behalf of a real owner 4. A
guardian on behalf of a minor
5. Government (Federal or Provincial)
Appeal against preliminary decree:
Preliminary decree is not allowed to appeal after
passing of specified time. Grounds of first
Appeal:
1. judicial mind not applied 2. misreading or non
reading of evidence
3. any other irregularity in procedure
Effect of irregularity in decree at appeal stage
u/s 99:
The decree shall not be remanded, varied, or
reversed merely on the ground of irregularity
during the proceeding except:
1. Where the decision is not on merit 2. The
court was not competent with regard to
jurisdiction
2nd Appeal
Generally, Second appeal lies to the High Court,
from every decree passed in an appeal, by a
court subordinate to lie High Court. It lies only
on grounds mentioned in section 100 CPC but
not on question of fact.
Grounds for Second Appeal
It is settled proposition of law that second will lie
where judgment is uncertain in its meaning and
finding is vague and inconclusive or where
reasons are not given at all. Following are the
grounds where second appeal is competent and
not otherwise.
(i) Decision being contrary to law
(ii) Decision being contrary to the usage having
force of law
(iii) Decision having failed to determine some
material issue of law or usage having the force of
law
(iv)Substantial error or defect in procedure
Cases where second appeal is barred:
1. Small cause court’s decree where the value of
suit does not exceed 25000/=
2. where the value of suit is upto 250000/= in
court other than small cause
Powers of High Court to determine issues of
fact
In second appeal the High Court may determine
an issue of fact.
1. Where there is sufficient evidence, on the
record, for determining issue of fact, necessary
for the disposal the lower appellate court but
that inferior court fails to consider.
2. An issue of fact, necessary for the disposal of
the case, has been wrongly determined by the
lower appellate court by reasons of any
omission, error or defect to determine some
material issue of law.
 Review
Introduction
Civil Procedure code has granted right of
reviews, but this right has been made subject
to procedure, conditions and limitations,
which have been prescribed in rules of order
47 of Civil Procedure Code. Right of review is
a substantive right, the main object of which
is to enable the courts to correct errors, in
the decisions pronounced by them. If the
decree or an order or made on the basis of
some record and there has been some
mistake or error apparent on the face of
record or some new and important matter or
evidence is discovered after the passage of
decree or order or another such sufficient
reasons, the application of review, may be
made by the aggrieved party.
Grounds of Review
1. Appealable Decree or Order
When any person is aggrieved by a decree or
order and appeal is allowed against such
decree or order, but appeal is not filed,
review application can be filed against such
decree or order.
2. No Right of Appeal allowed
Where no right of appeal is allowed to an
aggrieved party, he can file a review
application.
3. Discovery of new and important matter or
evidence When new and important matter or
evidence is discovered, but such matter or
evidence was not within knowledge of
aggrieved person or such matter or evidence
could not be produced by aggrieved person
at that time when decree or order was
passed, review application can be filed.
Note evidence must be relevant and such
nature that would if not allowed effect the
decree or order and party has to show strict
proof regarding this ground otherwise
application is liable to be rejected by the
court.
4. Mistake or error :When any mistake or
error is apparent on face of record, and not
require any extra evidence to establish it,
than a review application can be filed.
5. Any other sufficient Ground: Party may
apply for review, an order or decree when
there is any other sufficient ground or
reason, review application can be filed.
Forum of Review : An application for review
shall lie to the following authorities.
(i) Review application against decree or
order of High Court
When decree or order, against which
reviewed is prayed, is that of High Court,
review application should be filed before any
judge of High Court.
(ii) Same judge or his successor : When the
decree or order is that of court, other than
High Court, it shall be reviewed by same
judge or his successor.
Rejection of Application of Review : (i)
Where it appears to the court, that there is
no sufficient reason for review.
(ii) Where an application for review is heard
by more than one judges, and the court is
equally divided.
Order of Rejection non-Appealable : No
appeal lies, from an order rejecting an
application for review.
Restoration of review application : When
application for review is rejected for non
appearance of applicant then court
application by the applicant may restore it
and shall serve a notice to the defendant.
Limitation Period Application of Review
The application for review provides period of
90 days from date of the decree or order
except in case mentioned in sec 161 and 162
of limitation act 1908 which respectively deal
with the review of judgment or decree of the
small causes court and the High Court.
 Suit against the Government or public officer or by the government
Name of Parties to the suit In any suit by or against government, plaint or written statement should be
a) A suit by or against the federal government is filed in the name of Pakistan b) A signed by the person, whom government appoints in this behalf through
suit by or against the provincial government is filed in the name of concerned general or special order.
province B) Verification of Plaint and written statement
c) A public officer is to be sued personally and not in his public name unless he is a In any suit by or against government, plaint or written statement should be
corporation sole. verified by that person, whom government appoints in this behalf through
Procedure of suit filed against govt or public officer general or special order and who is familiar with facts of case.
a) With notice U/S 80(1) CPC C) Fixing of day for appearance on behalf of Government
b) Without notice U/S 80(2) CPC In fixing day for government to answer plaint, court should allow reasonable
Institution of suit With notice U/S 80(1) CPC time for necessary communication with government through proper channel
A suit against government or public officer may be filed by giving notice to such and for issuance of instructions to government pleader to appear and answer
government or public officer two months before such filing. on behalf of Government. Even court possesses discretion to extend such
To whom notice is to be served? time.
1. In case suit is against federal government notice is to be served to the secretary D) Extension of time
of the state. When defendant is public officer and he considers it proper to make a
2. In case suit is against provincial government notice is to be served to either to the reference to government before answering plaint and he applies for extension
secretary of the province concerned or to the collector of the district. of time so that he can make such reference and can receive orders, court
3. In case suit is against Railway the notice is to be served to the General Manager should extend time for answering to plaint.
4. In case suit is against public officer notice is to be served to such public officer or Procedure in suits against Public officer
left at his office If government undertakes defense of some suit against public officer,
Contents of notice government pleader should apply to court at the time when he is furnished
1. Cause of Action with authority to appear and answer plaint. And court should enter note of his
2. Description and name of plaintiff authority in register of civil suits. But if such application is not filed, case is
3. Relief claimed considered to be as suit between private parties.
Object of the notice Execution proceeding by or against Government or Public officer
To give sufficient time to government or public officer that it/he may consider the Time for execution of Decree
position and decide whether claim of the plaintiff should be accepted or defended. When decree is against some public officer in respect of that act, which he has
Note: done in his official capacity, time should be specified in decree within which
Where at the expiration of period of two months and plaintiff claim remains decree should be satisfied.
unsatisfied the plaintiff is then allowed to institute a suit. Reporting of case
Plaint under section 80(2) When such decree is not satisfied within specified time, court should report
Plaint in case notice served but claim remains unsatisfied must contain statement of case for orders of provincial government.
delivery of such notice. Execution after reporting of case
Institution of suit without notice/without statement of delivery of notice U/S Execution should not be issued on any such decree unless it remains
80(2) unsatisfied for period of three months, and this period is computed from that
Court shall allow not less than three months to the defendant for written date when case is reported for order of provincial government.
statement. Arrest/Attachment of property of public officer
Procedure by the government/public officer as a plaintiff/defendant Public officer is not liable to arrest or his property is not liable to attachment
A) Signing of Plaint and written statement in that suit, which is filed against him in his official capacity. However, he can
be liable to arrest or his property can be liable to attachment in execution of
decree.

Decree
DEFINITION OF DECREE: U/S 2(2) of C.P.C
A decree may be defined as under.
"Decree means the formal expression of
adjudication which, so far as Court expressing
it, conclusively determine the rights of the
parties, with regard to all or any of the
matter in controversy in the suit, and may be
either preliminary or final."
1. INTRODUCTION
Decision given by Court of law, are either
decrees or orders. A decree always follow the
Judgment, which is pronounced by the Court,
after hearing the case and can either be
declaratory or executory. Both decree and
order are analogous to each other.
I. ESSENTIALS OF DECREE
Following are the essentials of decree.
(i) Adjudication
The word adjudication refers to judicial
determination of matter in controversy, and
includes an ex-parte determination For an
adjudication to come into the scope of
decree, it must be made by a court.
A court may pass an adjudication relating to
certain matters in a suit or all the matters in
the suit.
There are basically three types of decress :
(1)Preliminary Decree (2) Final Decree (3)
Partly Preliminary and partly final
Preliminary Decree: When a Court’s
adjudication decides the rights of the parties
with regard to all or any of the matters in
controversy in the suit but does not
completely dispose of the suit , it is a
preliminary decree.
A preliminary decree is passed in those cases
in which the Court has first to adjudicate
upon the rights of the parties and has then to
remain inactive until it is in a position to pass
a final decree. In the case of an appeal
against a preliminary decree, the final decree
automatically falls for there is no preliminary
decree thereafter in support of it.
for example a wife sues her husband for
maintenance. In the course of making a
determination, the court must also
decide whether she gets maintenance
during the time the trial place , This
would amount to a preliminary decree.
Final Decree
A decree may be said to be final in two
ways, When there has been no appeal
filed against the decree or when the
matter has been decided by the highest
Court, or when the Court passing it
completely disposes of the suit.
A final decree is one which completely
disposes of the suit and finally settles
all the questions in controversy
between the parties and nothing
further remains to be decided
thereafter. Ordinarily there will be only
one final decree in the suit.
However, where two or more causes of
action are joined together there can be
more than one final decree.
For example : In a suit for the title of a
particular property when the court
decides who has the title of the
property it is the final decree in the suit.
Partly Preliminary and Partly Final
A decree may be partly preliminary and
partly final and this may be explained
by way example:
For Example: here two brothers argue
over who inherits the family property
from their late father. This property is
currently leased out to a family. While
the determination of who gets the
property is the subject of the final
decree, the determination of who gets
the profits that accrue from the lease
rent being paid during the length of the
trial, is a matter of partly preliminary
and partly final decree.
 Difference between Decree and Order
Following are the differences between Decree
and Order.
As to Nature: Every decree is and order, but
every order is not a decree.
Appeal: Ordinarily appeal lies from every decree,
but order are appealable only, if provided by sec
104 read with order 43.
As to Second Appeal: A second appeal may lie
against decree, but a second appeal shall not lie
against an order passed in appeal.
Determination of Rights: Decree conclusively
determines the rights of the parties, but order
does not necessarily conclusively determine the
rights of the parties.
Classes: Decree is of five classes as provided u/s
2(2), while order may be of final or interlocutory. defined under section 2(2, 9, and 14). The
Emergence: Decree cannot be emerged into an
order, but every order in a case can be merge
into a decree.
Difference between Decree, Order and
Judgment
As to Execution: It is the decree or order which is
capable of execution and not the Judgment.
Judgment
Judgment means the statement
given by the Judge on the
grounds of a decree or order.
The essential element of a
judgment is that there should be
a statement of the grounds of
the decision. Every Judgment
must contain:
1. A concise statement of
the case
2. The points for
determination – the
decision thereon
3. The reasons for such
acquisition
A judgment can be distinguished
from a decree in the sense that
a judgment means the
statement given by the Judge of
the grounds of a decree or
order. A judgment contemplates
a state prior to the passing of a
decree or an order, and after
the pronouncement of a
judgment a decree shall follow.
Form: Decree and order always follow the
Judgment while the Judgment contains the
grounds of both decree and order.
Superiority: Judgment is superior in form
and if decree or order is not in accordance
with it, they may be altered.
Appeal: It is the decree or orders which is
appealable and not the judgment.
Kinds: Decree and order has different kinds
but that is not a case with the judgment.
Conclusion: In the conclusion I can say that
decision given by the judge is called
judgment which contains the grounds of
the decree and order. Decree and order
are analogous to each other. They are
importance of decree lies in fact that they
are appealable and conclusively determine
the rights of the parties. There is difference
between order, decree and Judgment.
Order
An order means “ the formal
expression of any decision of a
civil court which is not a decree”.
A judicial order must contain the
discussion of the question at issue
and the reasons which prevailed
with the Court to pass the order.
The distinction may be drawn
between a decree and order on
the following grounds.
1. A decree can only be
passed in the suit which
commenced by the
presentation of a plaint.
An order may arise from a
petition or application.
2. A decree conclusively
determines the rights of
the parties however an
order may not finally
determine such rights.
3. There cannot be a
preliminary order.
4. In certain suit is one
preliminary decree and
the other final decree may
be passed, however a
number of orders may be
passed in the same suit.
5. Every decree is appealable
but every order is not
unless specified.
 Temporary Injunction
1. Introduction
An injunction is a judicial process through which
some litigant is ordered to do a particular act or
to refrain from doing a particular act. As far as
nature of injunction is concerned, it can be
mandatory or prohibitory. And as far as duration
is concerned, it can be permanent or temporary.
Temporary injunction is that injunction, which
can be granted at any time of some suit and
continues for a specified period or till further
order of court is not passed.
3. Basic Ingredients of Temporary Injunction
Following are basic ingredients of temporary
Injunction:
i. Prima Facie Case
Temporary injunction can be granted when
applicant is able to show that he will get decision
of case in his favor. Therefore, first ingredient of
temporary injunction is prima facie case. To
grant temporary injunction, court is to assess
whether applicant’s case is prima facie or not
and applicant is to prove existence of prima facie
case in his own favor.
ii. Irreparable Loss
Temporary injunction can be granted when there
is possibility that applicant will suffer irreparable
injury or damage. Therefore, second ingredient
of temporary injunction is irreparable loss.
However, temporary injunction cannot be
granted when loss is ascertainable and pecuniary
compensation is available for such loss.
iii. Balance of Convenience
Temporary injunction can be granted when
balance of convenience is in favor of applicant. In
fact, court is to examine whether applicant will
suffer greater inconvenience in case of
withholding of temporary injunction or not. If
applicant will suffer greater inconvenience, court
is to grant temporary injunction.
4. Procedure regarding issuance of Temporary
Injunction
Following points are important for explanation of
procedure regarding issuance of temporary
injunction
i. Suit or application for Temporary Injunction
Court can grant temporary injunction when suit
or application for injunction is filled with
affidavit.
ii. Suit for restraining of repetition or
continuance of Breach
Court can grant temporary injunction in any suit
for restraining of repetition or breach of contract
or other injury of any kind when compensation is
claimed or is not claimed in such suit.
iii. Issuance of Notice to opposite party
Before granting temporary injunction, court
should direct in all cases that notice of
application for temporary injunction should be
given to opposite party. However, exception has
been provided against such issuance of notice.
v. Issuance of Temporary Injunction
Following points are important as far as issuance
of temporary injunction is concerned
a. Interim injunction in absence of Defendant
When temporary injunction is granted in
absence of defendant, such injunction should
not exceed fifteen days. However, such
injunction can be extended in either of following
tow situations:
a-i. Failure of Service of Injunction on
defendant
After such fifteen days, temporary injunction can
be extended for failure of service of such
injunction on defendant when such failure is not
attributable to plaintiff.
a-ii. Defense of application for injunction
After such fifteen days, temporary injunction can
be extended when defendant seeks time for
defense of application for injunction.
b. Ceasing of order of injunction after hearing
of parties or after notice to defendant
After hearing both the parties or after notice to
defendant, order of injunction should ceases to
have effect on expiration of six months.
However, court can extend such order after
hearing both the parties. But it is necessary that
reasons should be recorded for such extension
and report of such extension should be
submitted to High Court.
vi. Discharging, Varying or setting aside of order
for injunction
When order of injunction is made and some
party, who is dissatisfied with such order, makes
application, court can discharge, vary or set
aside such order.

Revision
Introduction: The code of Civil Procedure
grants the revisional jurisdiction to
superior courts where subordinate courts
had exercised jurisdiction not vested in
them by law had committed material
irregularity in exercise of Jurisdiction.
Meaning: It means a re-examination or
careful read-over for correction or
improvement.
Definition: Revision is a re-examination of
a case by the higher court in order to
improve or correct the decision of a
subordinate court.
Authorities Empowered to Hear
Revision:
High Court: High court can entertain
revision in all cases where the value
of the subject matter exceeds Rs.
Two Hundred Thousand.
District Court: District Court can
entertain revision in all cases, where
the value of the subject matter
exceeds Rs. Two Hundred Thousand.
Additional District Court: Additional
District Court can exercise revisional
powers, Where District Judge
entrusts revision for disposal to the
Additional District Judge.
 Various Modes of Summons
Introduction
Order 5 of Civil Procedure is based on this
principle that no one should be
condemned unheard when the suit is
instituted against the defendant the court
is bound to serve the summons to
defendant for appearing before the court.
In fact, CPC provided procedural rules to
administer trial of civil suit from its
institution till its conclusion. After filing of (b) Failure of serving officer to find defendant
suit, it becomes necessary for that party,
which files suit, to serve summon son
opponent party. Order 5 prescribes
various modes of service of summons to
defendant.
Meaning of Summons
Summons may be defined as under “A
written notification issued by a civil court
requiring that one must appear before
the court in prescribed manner”.
Various Modes of Summons
Under Civil Procedure Code, following are
modes of service of summon have been
described;
1. Postal Service
Under order 5 Rule 10-A of CPC, a copy of
summons would be sent by registered
post.
Effect
A postal service is deemed to by effect;
(i) When defendant sign the purpose of avoiding summons, or
acknowledgement, or
(ii) Postal employee endorses, that
defendant refuses to take delivery.
2. Personal Service of Summons
Wherever it is practicable, service of
summons should be made on defendant
in person. This is also called direct service
so far as practicable service should be
made on the defendant in person.
(i) Service upon person of defendant
Order 5 Rule 10, when summons is served
on person of defendant, it should be
signed by judge or officer of court and
should be sealed with seal of court.
(ii) Service on agent of defendant
Summons may be served upon the agent
of defendant
(ii-a) Empowered agent
The personal service made to the agent
of the defendant, empowered to accept
service shall be sufficient.
(ii-b) Business of Defendant
If some person does not reside within
jurisdiction of court, but carries on some
business or works thorough manager or
agent, and suit is filed against this person
and in relation to this business or work,
summons can be served on such manager
or agent.
3. Service by Affixation
When personal service is failed to serve
to the summons than summons may be
served by service by affixation.
(i) Condition Required
Service by affixation can be made when following
conditions are fulfilled.
(a) Refusal by defendant to sign
acknowledgement
Service by affixation may be served, where the
defendant or his agent or such other person to
whom the summons may be served refuses to
sign the acknowledgement.
Where the serving officer after using all due and
reasonable diligence cannot find the defendant,
than service by affixation can be made due and
reasonable diligence is depend on the facts of
each case.
(ii) Manner of Affixation
The copy of summons should be actually affixed
on the outer door or some conspicuous part of
the house where defendant resides, carries on
business or personally works for gain.
4. Affixation of Copy of Summons
If personal service of summons is not possible,
service of summons can be made through
affixation of a copy of summons on outer door or
some other eminent part of that house in which
defendant ordinarily resides or carries on
business or works for gain.
(i) When Substituted Service be made
It can be made only in the following cases.
(a) When defendant is keeping out of the way for
(b) Any other reason for which service of
summons is not possible in ordinary way.
(ii) Manner of Substituted Service
Substituted service may be effective by the
following ways;
(a) Substituted service can be made by affixing
copy of summons at some conspicuous part of
that house in which defendant is known to have
last resided or carried on business or personally
worked for gain.
(b) Substituted service can be made through any
electronic device of communication like
telegram, telephone, phonogram, telex, radio or
television.
(c) Substituted service can be made through
urgent mail service or public courier services.
(d) Substituted service can be made through beat
of drum in that locality where defendant resides.
(e) Substituted service can be made through
publication in press.
(f) Substituted service can be made through any
other manner or mode, which court thinks fit.
(iii) Effect
The substituted service shall be as effective, as if it
had been made on the defendant personally and
the court may pass an ex-parte decree, on non
appearance of defendant.
(iv) Time for defendant’s Appearance
In case of substituted service, it is necessary that
court should fix time of appearance of defendant
and such time should not exceed fifteen days.
 Mesne Profit under Section 2(12) of CPC
1. INTRODUCTION
Mesne profits are profits to which a
person is entitled but from, which he has
been kept out by the defendant. The
profit lost to the owner of the land by
reason of his having been wrongfully
dispossessed of his land. A claim for
mesne profit is usually joined with the
action for recovery of the possession of
the land.
3. LITERAL MANNING OF MESNE
PROFITS
"Mesne" means, intermediate,
intervening, the middle between two
extremes and especially of ranks of time
as envisaged under section 2(12).
4. DEFINITION OF MESNE PROFIT
(I) According to Section 2(12) of the
C.P.C:
Mesne profits of property means "those
profits which the person is wrongful
possession of such property actually
received or might with ordinary diligence
have received there from together with
interest on such profits but shall not
include profits due to improvements
made by the person in wrongful
possession".
(II) Simple Definition
It denotes damages and compensation
recoverable from a person who has been
wrongful possession, it means that profit
which the plaintiff has lost by reason of
the wrongful act of defendant.
Example:
Mesne profit can be claimed only
regarding immovable property and not
for movable property.
5. EXPLANATION OF MESNE PROFIT
Calculation of Mesne Profit:
It should be awarded on the basis of
actual profits which the wrong doer
received or which he might have been
received with ordinary diligence.
(II) Wrongful Possession
It means that the person who has no right
to possession as against the party
claiming it is in wrongful possession as
against that Party for a certain purposes
including mesne profits but not wrongful
for all purposes.
(III) Interest on mesne profit
It includes the right to interest on the
profits that proceeds on the theory
that the person . in wrongful
possession appropriating income from
the property himself gets the benefits
of the interest of such income.
Example: The decree holder is entitled
to interest up to the date of realization
of the mesne profits.
(IV) Rate of interest
To be allowed on the mesne profit in
discretionary as there is no questions of
any contractual rate or any particular
rate fixed by statute.
(V) Suit for recovery of mesne profit
Plaint clearly showing that plaintiff not
only prayed for mesne profits for
period up to the decision of case. Court
below was justified in allowing mesne
profits up to date of decision of case
with order to plaintiff to pay court Fee
in respect of compensation awarded to
him beyond period of three years
contention that court could not award
mesne profits beyond period of 3 years
was repelled in circumstances.
(VI) Mesne Profits do not effect
pecuniary jurisdiction
The value of a suit for the recovery of
possession and mesne profits is the
value of the immovable property plus
mesne profit up to date of suit mesne
profit after suit do not from rent of the
cause of action even there be a prayer
in the plaint for mesne profits after
suit.
9. Conclusion
to conclude that mesne profit is
compensation which is awarded
against persons in wrongful possession
of property is known as mesne profit. It
can be claimed by a person entitled to
actual possession of such property.
Such profits can be claimed with
respect to immovable property only.
Person claiming mesne profits would
have to pay court fee for arrears
claimed by him without payment of
such court fee no arrear of mesne
profits if any, could be awarded by
claimant.

 A suit is instituted on presentation of a plaint.
 In plaint all necessary facts have to be
mentioned constituting a cause of action.
 The grievances arising out in favour of the
plaintiff are to be mentioned.
 The date of cause of action has to be
mentioned for determination of limitation as
well as jurisdiction of the Court.
 The plaint is to contain averment as to the
jurisdiction of the Court, also for the purposes of
Court Fee and valuation under the Court Fees
Act, 1870 and Suits Valuation Act, 1887.
 A plaint can be rejected under Order 7 Rule 11
CPC when it is barred by a law, is time barred, is
without jurisdiction or does not disclose any
cause of action.
Plaint
 It shall be the duty of the Court to ensure that
the proper Court Fee has been paid on the plaint
or any other document. Otherwise it shall pass an
order Section 149 CPC for making up the
deficiency.
 A dispute had arisen as to whether the suit shall
be treated in time when presented without proper
Court Fee or shall be treated to be properly
presented on the date when the proper Court Fee
is paid. This objection had been valid in pre-
Emption cases especially. It was held that the
proper presentation was on the date proper Court
Fee was paid.
 Return of Plaint for want of territorial jurisdiction
under Order 7 Rule 10 CPC with endorsement as
to:- 1) Date of Presentation of Plaint. 2) Date of
Return. 3) Short grounds. 4) Signature and Seal of
the Court. 5) A copy of the Plaint shall be obtained
from the plaintiff and placed on record.

(Rejection of Plaint) Order 7 Rule 11

Introduction: A civil court is fully competent to consider
legal objection on maintainability of suit. The plaint can
be rejected by the court at initial stage if legally found
defective. It is the duty of the court before which a suit
is instituted to properly examine the plaint for the
purpose of determining whether it should be returned
or rejected and in order to determine the question of
rejection , it is the responsibility of the court to take
consideration other material too where plaint should be
rejected.
Meaning of Rejection of Plaint: It means when the
plaint does not disclose the cause of action or fails to
mention correct valuation court shall reject the plaint in
such cases.
Grounds of Rejection of Plaint:
Cause of Action Not Disclosed: Where a plaint does not
disclose any cause of action it has to be rejected and for
this purpose only the plaintiff is to be looked into and
nothing else.
(2)Claim Relief Under Valued: If the claim is under valued
and the plaintiff having been asked to correct the valuation
fails to do so the plaint shall be rejected.
(3) Plaint Deficient in Court Fee: Where a plaint is written
on paper insufficiently stamped the court is bound to give
the plaintiff time to make good the deficiency under section
149 of Civil Procedure Code if the plaintiff fail to supply the
requisite stamp paper within the period fixed by court the
plaint may be rejected.
 Res Judicata
Introduction: The doctrine of res judicata gives
respect and finality to the judicial decisions.
The bar of res judicata contained in section II
would be fully attracted. When matter involved
in second suit was the same as involved in
previous litigation up to High Court. The
doctrine applies to the suits or issues which are
or have been decided in a former suit.
Meaning: It means that the matter in dispute
has been considered and finally settled and
that the adjudication has a conclusive affect
upon the rights determined.
Definition of Res Judicata: A final Judicial
decision pronounced by a judicial tribunal
having competent jurisdiction over the cause
or matter in litigation and over the parties
thereto.
Doctrineof ressubjudice u/s10: If a case is
already pending in a Court or any legal forum,
case instituted latter shall be stayed /stopped.
First in times hall prevail. If the exparte
judgment is given after the case has
already been instituted, ex parte judgment
shall beset
aside. There as on of the setting aside is that
the case was already proceeding in the
competent Court. There was no reason to try it
again during its pendency with the same facts
in issues.
Principle of Res Judicata: The rule of re
judicata is based on the ground of public
policy. If litigations between parties on the
same subject matter involving the same issue
are allowed to proceed there can be no end to
litigation.
Conclusion: We may conclude that res judicata
is the principle of universal application. This
doctrine is applicable only in civil cases. While
in criminal law parallel to this doctrine, is
doctrine of dual jeopardy. The doctrine of res
judicata is of universal application and in fact a
fundamental concept in the organization of
every judicial system. Therefore we can say
that “Man shall not be twice vexed for the
same cause of Action”.

Inherent powers of courts: S.15

Inherent powers of courts: S.151of
Code of Civil Procedure provides the
inherent powers to civil courts to
exercise such powers which are
necessary to ensure justice and which
are necessary to prevent abuse of the
process of the Court. This Power is
not available in criminal side. Only
civil courts enjoy this power .Since
Code of Civil Procedure is not fully
exhaustive, therefore, Court in many
cases, Where the circumstances
require it, acts upon the assumption
of the possessions of a inherent
power to act ex debito justitiae and
to do that real and substantial Justice provision of law is applicable to the case,
for the administration of which alone
it exist.
Circumstances in which Court may
exercise its inherent powers:
Following are the circumstances in
which Court may exercise its inherent
power.
1. Abuse of Process: Where the Court
by employing a procedure does
something that it never intended and
there is miscarriage of justice, the
Court Possesses inherent powers to
rectify such mistake, as an act of
Court
should not prejudice any person.
2. Lack of provisions: Codified law is
never fully exhaustive in nature at all. It
Always slacks sufficient provisions.
Where law lacks, inherent powers of
Court Fill this space.
3. Non-Islamic provisions: Where law
provides provisions in contravention to
Islamic Injunction, Court can exercise its
inherent power to avoid its un-Islamic
application.
4. Where substantial justice is
unavailable: The inherent powers can
only be
Exercised where there is no express
And as such where an express provision
of law is applicable , the Court will not
Invoke its inherent jurisdiction.
5.Consolidation of suits: Court may pass
order for the consolidation of suits
where more than one suits of the same
nature are pending at different forums
so that they may be discharged at once.

Section 149 ( Court Fees) time to pay

Provision of S. 149 is general in nature, which deals with all categoric, of cases S. 149 carry
nexus
with Order 7 Rule 11 (b) and (c) whereby the relief claimed was undervalued. Where relief
claimed was properly valued but the plaint was written upon insufficient paper. Under
section 149, Court has been made specially empowered to receive whole or part of court
fee at any stage. Court by all norms is competent to extend time U/S 149 / 151 CPC
provided delay in making up deficiency is not attributable with mala intention.
 FRAME OF SUIT
(1)Every suit shall as far as practicable be
framed so as to afford ground for final (2) Where causes of action are united,
decision upon the subjects in dispute the jurisdiction of the Court as regards
and to prevent further litigation the suit shall depend on the amount or
concerning them. value of the aggregate subject matters
2.(1) Every suit shall include the whole of at the date of instituting the suit.
the claim which the plaintiff is entitled to 4.- No cause of action shall, unless with
make in respect of the cause of action; the leave of the Court, be joined with a
but a plaintiff may relinquish any portion suit for the recovery of immovable
of his claim in order to bring the suit property, except-
within the jurisdiction of any Court. (a) Claims for mesne profits or arrears
(2) Where a plaintiff omits to sue in of rent in respect of ~he property
respect of, or intentionally relinquishes, claimed or any part thereof;
any portion of his claim, he shall not (b) Claims for damages for breach of
afterwards sue in respect of the portion any contract under which the property
so omitted or relinquished claim. or any part thereof is held; and
(3) A person entitled to more than one (c) Claims in which the relief sought is
relief in respect of the same cause of based on the same cause of action;
action may sue for all or any of such Provided that nothing in this rule shall
relief; but if no omits, except with the be deemed to prevent any party in a
leave of the Court, to sue for all such suit for foreclosure o~ redemption
relief, he shall not afterwards sue for any from asking to be put into possession
relief so omitted. of the mortgaged property.
Explanation: For the purposes of this rule 5. No claim by or against an executor,
an obligation and a collateral security for administrator or heir, as such, shall be
its performance and successive claims joined with claims by or against him
arising under the same obligation shall be personally, unless the last mentioned
deemed respectively to constitute but claims are alleged to arise with
one cause of action. reference to the estate in respect of
Illustration: which the Plaintiff or defendant sues or
A lets a house to B at a yearly rent of is sued as executor, administrator or
Rs.1,200. The rent for the whole of the heir, or are such a~ he was entitled to,
years 1905, 1906 and 1907 is due and or liable for, jointly with the deceased
unpaid. A sues B in 1908 only for the rent person whom he represent.
due for 1906. A shall not afterwards sue B
for the rent due for 1905 or 1907.
3.- (1) Save as otherwise provided, a
plaintiff may unite in the same suit
several causes of action against the same
defendant, or the same defendants
jointly; and any plaintiffs having causes of
action in which they are jointly interested
against the same defendant or the same
defendants jointly may unite such causes
of action in the same suit.

Mis-Joinder and Non Joinder

Introduction: In every suit there
are certain persons who are
essential to impleaded as
defendants. The term joinder
means joining and joinder may be
of the cause of action. All the
persons who are proper party in a
suit has a right to join the suit.
Meaning of Mis-Joinder: The
joining of any person as a party to
a suit contrary to the provision of
C.P.C is mis-joinder of parties.
Meaning of Non-Joinder: The
failure to join any person as a
party to a suit whose joining is
necessary as proper or necessary
party is non-joinder parties.
Joinder of Parties: If a person who
is necessary to be joined together
as plaintiff or defendant has not
been so added, the result is a mis-
joinder of the parties.
Mis-Joinder of Plaintiffs: If two or
more persons are joined as
plaintiffs in one suit the result is a
mis-joinder of plaintiffs.
Objection As to Mis-Joinder of
Plaintiffs: The objection The
objection on the ground of mis-
joinder of plaintiffs should be
taken at the earliest possible
opportunity, if not, it will be
deemed to have been waived.
Effect of an objection to mis-
Joinder of plaintiffs: An objection
on the ground of mis-joinder of
plaintiffs is not fatal to the suit.
Remedy To Cure Defect of Mis-
Joinder or Non-Joinder Parties:
Institution of Suit in the
Name of Wrong Plaintiff:
Where the suit is instituted in
the name of wrong plaintiff
the court can add co-plaintiff
or substitute the Plaintiff.
Conditions: The action was
commenced in the name of
the original plaintiff by a
bonafide mistake or where it
is doubtful whether it has
been instituted i n the name
of the right plaintiff.
Adding or striking out parties:
The court may order the
addition of a person as a
necessary or proper party for
the determination of parties
of suit.
Modes of Addition: Court
may add a party Suo motu or
Upon an application of such
person or by a party to the
suit.
Conclusion: We may conclude
that any number of persons
can be joined together as co-
plaintiffs or co-defendants
and any objection as to mis-
joinder or non-joinder of
parties should be taken at the
earliest account of mis-joinder
or non-joinder but court
should allow amendment and
shall dismiss the suit, if
necessary parties have not
been added as non-joinder of
necessary parties can be fatal.
Difference between Judgment and Order
1.Meaning of Judgment - 1.It is not necessary
Judgment means statement for a judge to give
given by a Judge of the statement of ground
grounds of decree or order. in a decree.
2. It is not necessary that 2. It is necessary that
there should be a formal there must be formal
expression of order in the expression of the
judgment. decree
3. Judgment should state 3. Decree must
preciously the relief granted. determinate the
4. Judgment contemplates rights of the parties.
stage prior to the passing of 4. Decree Follows
a decree. after judgment
5. There may be a judgment 5. Generally decree
in civil suit as well as in is passed in a civil
criminal case. suit.

Difference between Res Judicata and Re

Subjudice
1. The rule of Res Judicata 1. In case of Res
is applicable when the Subjudice, It relates to a
matter is already matter, which is pending
adjudicated upon by the in the Court of Law.
Court. 2. It bars trial of a suit in
2. The Res-Judicata which the matter is
prevents the trial of a suit pending for decision in
or issue in which the the previous suit.
matter in issue has already
been decided in a previous
suit..

Cause of Action
==============================

The expression cause of action are facts which show the infringement of the rights of a person. Literally cause means reason or right, and action means suit, "reason for filing a suit". In-other words it
means causes in shape of facts which give rise to a party to file a suit. Cause of action is a factual situation that entitles one person to obtain a remedy in court from another person. It is infact a group of
essential facts which it is necessary for the plaintiff to prove before he can succeed in the suit.