Civil Procedure Code- Test Preparation

Basic Definitions-

Jurisdiction

The District Court or Additional District court exercises jurisdiction both on original and
appellate side in civil and criminal matters arising in the District. The territorial and
pecuniary jurisdiction in civil matters is usually set in concerned state enactments on the
subject of civil courts. On the criminal side jurisdiction is almost exclusively derived from
code of criminal procedure. This code sets the maximum sentence, which a district court may
award which currently is capital punishment.

The court exercises appellate jurisdiction over all subordinate courts in the district on both
civil and criminal matters.

Appeals from the district courts lie to the High court of the concerned state.

3 types- Pecuniary or Monetary, Territorial and Subject Matter

How Is Territory Decided?

Territory of a court is decided after taking into account several factors. They are:

In Case Of Immovable Property: If the suit is with regard to recovery, rent, partition, sale,
redemption, determination of right of immovable property, it shall be instituted in the court
within the local limits of whose jurisdiction the property is situated

Immovable Property Situated Within The Jurisdiction of Different Courts: In such a

case the suit may be instituted in any court within the local limits of whose jurisdiction any
portion of the property is situated.

In Case Of Dispute Between Two Or More Persons With Respect To Movable Property,
Business Or Any Other Wrong Done: Where a wrong has been caused to a person, or any
damage has been caused to a movable property, then the suit may be instituted
Either in the place, where wrong or damage has been caused, or
In the place, where defendant (the person who caused the loss) resides
Where there is a dispute in business, agreement or any other kind of civil dispute, except
matrimonial matter, then the suit may be instituted either-

In a place, where the defendant resides, or carries on business, or

In a place, where the cause of action has arisen, i.e. where the dispute or wrong took place

In Case Of Matrimonial Dispute: Where a dispute arises between Husband and wife in
regard to their marital life then the case may be filed either:
In the place where marriage was solemnized, or
In the place, where opposite party is residing, or
In the place, where Husband and Wife last resided together, or
In the place, where person filing the case is residing, provided that opposite party has not
been heard of as alive for the last seven years.

Jurisdiction Of Civil Court Under Civil Procedure Code

Section 9 of CPC deals with the jurisdiction of civil courts in India. It says that the courts
shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is either expressly or impliedly barred

Explanation I- a suit in which the right to property or to an office is contested is a suit or a

civil nature, notwithstanding that such right may depend entirely on the decision of questions
as to religious rites or ceremonies.

Explanation II- for the purpose of this section, it is immaterial whether or not any fees are
attached to the office referred to in explanation 1 and whether such office is attached to a
particular place.

Conditions
A civil court has jurisdiction to try a suit if two conditions are fulfilled: The suit must be of a
civil nature; andthe cognizance of such a suit should not have been expressly or impliedly
barred.

Suits expressly barred-

A suit is said to be ‘expressly barred ’ when it is barred by any enactment for the time being
in force. It is open to a competent legislature to bar jurisdiction of civil courts with respect to
a particular class of suits of a civil nature, provided that, in doing so, it keeps itself within the
field of legislation conferred on it and does not contravene any provision of the constitution.
But every presumption should be made in favor of the jurisdiction of a civil court and
the provision of exclusion of jurisdiction of a court must be strictly construed. If there is
any doubt about the ousting of jurisdiction of a civil court, the court will lean to an
interpretation, which would maintain the jurisdiction. Thus, matters falling within the
exclusive jurisdiction of revenue courts or under the code of criminal procedure or matters
dealt with by special tribunals under the relevant statutes, e.g. by industrial tribunal, income
tax tribunal, revenue tribunal, electronic tribunal, rent tribunal, cooperative tribunal, motor
accident claims tribunal, etc. or by domestic tribunals, e.g. Bar Council, Medical Council,
university, club etc. are expressly barred from the cognizance of a civil court. But if the
remedy provided by a statute is not adequate and a special tribunal cannot decide all
questions, the jurisdiction of a civil court is not barred. Similarly, when a court of limited
jurisdiction prima facie and incidentally states something, the jurisdiction of a civil court to
finally decide the time is not ousted.

Suits impliedly barred-

A suit is impliedly barred when it is barred by general principles of law. Where a statute
gives a specific remedy, it thereby deprives the person who insists upon a remedy of any
other form than that given by the statute. Where an act creates an obligation and enforces its
performance in a specified manner, that performance cannot be enforced in any other manner.
Similarly, certain suits, though of a civil nature, are barred from thee cognizance of a civil
court on the ground of public policy. “The principle underlying is that a court ought not to
countenance matters which are injurious to and against the public weal.” Thus, no suit shall
lie for recovery of costs incurred in criminal prosecutionor for enforcement of a right upon a
contract hit by section 23 of the Indian Contract Act, 1872; or against any judge for acts done
in the course of his duties. Likewise, political questions belong to the domain of public
administrative law and are outside the jurisdiction of civil courts. A civil court has no
jurisdiction to adjudicate upon disputes of a political nature.

The party, which seeks to oust the jurisdiction of a civil court, needs to establish it. Also, it is
well settled that a statute ousting the jurisdiction of a civil court must be strictly construed
(Firm of Illuri Subbayya Chetty & Sons v. State of AP).

Note: during the exclusion of jurisdiction, even if the jurisdiction of a court is barred
expressly or impliedly, this does not mean that the jurisdiction of the court is completely
excluded. The court is allowed to examine whether the provisions of the Act and the Rules
have been complied with, or the order is contrary to law, mala fide, ultra vires, perverse,
arbitrary, violative of the principles of natural justice, based on no evidence, etc. Such
actions of the court are not said to be under the Act, but de hors the Act and the jurisdiction
of the court stands (given in Secy Of State v Mask & Co).

From various decisions of the SC, the following general principles relating to the jurisdiction
of a civil court emerge:

1. A civil court has jurisdiction to try all suits of a civil nature unless their cognizance is
barred either expressly or impliedly.
2. Consent can neither confer nor deny the jurisdiction of a court.
3. A decree passed by a court without jurisdiction is a nullity and the validity thereof can
be challenged at any stage of the proceedings, in execution proceedings or even in
collateral proceedings.
4. There is a distinction between want of jurisdiction and irregular use of it.
5. Every court has the inherent power to decide a question of its own jurisdiction.
6. Jurisdiction depends on the averments in the plaint, and not in the averments in the
written statement of the defendant.
 7. For deciding jurisdiction of a court, the substance of a matter and not its form is
important.
8. Every presumption should be made in favor of jurisdiction of a civil court.
9. A statute-ousting jurisdiction of a court must be strictly construed.
10. The burden of proof to disprove a court’s jurisdiction is on the party who questions it.
11. Even when the jurisdiction of a civil court is barred, it can still decide whether the
provisions of an Act have been complied with or whether an order was passed dehors
the provisions of law.

Res judicata and Stare Decisis

Stare decisis means to stand by decided cases; to uphold precedents – those things which
have been so often adjudged ought to rest in peace.

Res judicata and stare decisis are members of the same family. Both relate to adjudication of
matters; final determination of contested questions and have binding effects in future
litigation. Both the doctrines are the result of decisions of a competent court of law and are
based on public policy.

However, the differences between the two are as follows:

o Res judicata is based on conclusiveness of judgment and adjudication of prior

findings but stare decisis rests on legal principles.
o Res judicata binds parties and privies while stare decisis operates between
strangers also and binds courts from taking a contrary view on the point of law
already decided.
o Res judicata relates to a specific controversy and stare decisis touches legal
principles.
o Res judicata presupposes judicial finding upon the same facts as involved in
subsequent litigation between the same parties, whereas stare decisis applies
the same principle of law to all parties.
Who may decide?

It is well settled that a civil court has inherited power to decide its own jurisdiction.

Presumption as to jurisdiction

In dealing with the question whether a civil court’s jurisdiction to entertain a suit is barred or
not, it is necessary to bear in mind that every presumption should be made in favor of the
jurisdiction of a civil court. The exclusion of jurisdiction of a civil court to entertain civil
causes should not be readily inferred unless the relevant statute contains an express provision
to that effect, or leads to a necessary and inevitable implication of the nature.

Burden of proof

It is well settled that it is for the party who seeks to oust the jurisdiction of a civil court
to establish it. It is equally well settled that a statute ousting the jurisdiction of a civil
court must be strictly construed. Where such a contention is raised, it has to be determined
in the light of the words used in the statute, the scheme of the relevant provisions and the
object and purpose of the enactment. In the case of a doubt as to jurisdiction, the court should
lean towards the assumption of jurisdiction. A civil court has inherent power to decide the
question of its own jurisdiction; although as a result of such inquiry it may turn out that it has
no jurisdiction to entertain the suit.

Exclusion of jurisdiction: limitations

A litigation having a grievance of a civil nature has, independent of any statute, a right to
institute a suit in a civil court unless its cognizance is either expressly or impliedly barred.
The exclusion of the jurisdiction of a civil court is not to be readily inferred and such
exclusion must be clear. Again, even when the jurisdiction of a civil court is barred, either
expressly or by necessary implication, it cannot be said that the jurisdiction is altogether
excluded. A court has jurisdiction to examine whether the provisions of the act and the rules
made thereunder have or have not been complied with, or the order is contrary to law, mala
fide, ultra vires, perverse, arbitrary, ‘purported’, violative of the principles of natural justice,
or is based on ‘no evidence’ and so on. In all these cases, the order cannot be said to be under
the act but is de hors the act and the jurisdiction of a civil court is not ousted. In the leading
decision of Secretary of State v. Mask & Co., the Privy Council rightly observed: “it is settled
law that the exclusion of the jurisdiction of the civil court is not to be readily inferred, but
that such exclusion must either be explicitly expressed or clearly implied. It is also well
established that even if jurisdiction is so excluded the civil courts have jurisdiction to
examine into cases where the provisions of the act have not been complied with, or the
statutory tribunal has not acted in conformity with the fundamental principles of
judicial procedure.”

Exclusion of jurisdiction of civil court: principles

From the above discussion it is clear that the jurisdiction of civil courts is all- embracing
except to the extent it is excluded by law or by clear intendment arising from such law.In the
classic decision of Dhulabhai v. State of M.P., after considering a number of cases,
Hidyatullah, C.J. summarized the following principles relating to the exclusion of jurisdiction
of civil courts:

a. Where a statute gives finality to orders of special tribunals, the civil courts jurisdiction
must be held to be excluded if there is adequate remedy to do what the civil courts would
normally do in a suit. Such a provision, however, does not exclude those cases where the
provisions of a particular act have not been complied with or the statutory tribunal has not
acted in conformity with fundamental principles of judicial procedure.

b. Where there is an express bar of jurisdiction of a court, an examination of the scheme of a

particular act to find the adequate or sufficiency of the remedies provided may be relevant but
this is not decisive for sustaining the jurisdiction of a civil court. Where there is no express
exclusion, the examination of the remedies and the scheme of a particular act to find out the
intendment becomes necessary and the result of the inquiry may be decisive. In the latter
case, it is necessary to see if a statute creates a special right or a liability and provides for the
determination of the right or liability and further lays down that all questions about the said
right and liability shall be determined by tribunals so constituted, and whether remedies
normally associated with actions in civil courts are prescribed by the said statute or not.
c. Challenge to the provisions of a particular act as ultra vires cannot be brought before
tribunals constituted under that act. Even the high court cannot go into that question on a
revision or reference from decisions of tribunals

d. When a provision is already declared unconstitutional or the constitutionality of any

provisions is to be challenged, a suit is open. A writ of certiorari may include a direction for
refund if the claim is clearly within the time prescribed by the limitation act but it is not a
compulsory remedy to replace a suit

e. Where the particular act contains no machinery for refund of tax collected in excess of
constitutional limits or is illegally collected, a suit lies.

f. Questions of the correctness of an assessment, apart from its constitutionality, are for the
decision of the authorized and a civil suit does not lie if the orders of the authorities are
declared to be final or there is an express prohibition in a particular act. In either case, the
scheme of a particular act must be examined because it is a relevant enquiry

g. An exclusion of jurisdiction of a civil court is not readily to be inferred unless the

conditions above set down apply. The above principles enunciated are relevant in deciding
the correctness or otherwise of assessment orders made under taxing statutes.

Res Judicata-

Res Judicata as a concept applies to both civil and criminal systems and stands for ‘the thing
has been judged’ meaning that the sane issue has been decided by another court between the
same parties. In order to preserve the effect of the first judgment the doctrine of res judicata is
applied by the judges.

Section 11 of Code of Civil Procedure deals with this concept. It embodies the doctrine of
Res Judicata or the rule of conclusiveness of a judgment, as to the points decided either of
fact, or of law, or of fact and law, in every subsequent suit between the same parties. It enacts
that once a competent court finally decides a matter; 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 expenses.

The doctrine of Res Judicata is based on three Roman maxims:

(a) No man should be vexed (annoyed) twice for the same cause

(b) That it is in the interest of the state that there should be an end to a litigation; and

(c) The meaning as a judicial decision must be accepted as correct

The pre-requisites, which are necessary for Res Judicata, are:

1) There must be a final judgment;

2) The judgment must be on the merits
3) The claims must be the same in the first and second suits
4) The parties in the second action must be the same as those in the first, or have been
represented by a party to the prior action.

Conclusion

The Doctrine of Res Judicata can be understood as something which restrains the either party
to “move the clock back” during the pendency of the proceedings. The extent of Res Judicata
is very-very wide and it includes a lot of things, which even includes Public Interest
Litigations. This doctrine is applicable even outside the Code of Civil Procedure and covers a
lot of areas, which are related to the society and people. The scope and the extent have
widened with the passage of time and the Supreme Court has elongated the areas with its
judgments.

Criticisms-

Res Judicata does not restrict the appeals process, which is considered a linear extension of
the same lawsuit as the suit travels up (and back down) the appellate court ladder, appeals are
considered the appropriate manner by which to challenge a judgment rather than trying to
start a new trial. Once the appeals process is exhausted or waived, Res Judicata will apply
even to a judgment that is contrary to law.

There are limited exceptions to Res Judicata that allow a party to attack the validity of the
original judgment, even outside of appeals. These exceptions—usually called collateral
attacks—are typically based on procedural or jurisdictional issues, based not on the
wisdom of the earlier court's decision but its authority or on the competence of the earlier
court to issue that decision. A collateral attack is more likely to be available (and to succeed)
in judicial systems with multiple jurisdictions, such as under federal governments, or when a
domestic court is asked to enforce or recognize the judgment of a foreign court.

In addition, in matters involving due process, cases that appear to be Res Judicata may be re-
litigated. An example would be the establishment of a right to counsel. People who have had
liberty taken away (i.e., imprisoned) may be allowed to be re-tried with a counselor as a
matter of fairness.

Res-Subjudice

Section 10 of the Civil Procedure Code provides the doctrine of Res Subjudice or the rule
with regard to stay of suit where things are under consideration by court. It provides that no
court shall proceed with the trial of any suit in which the matter in issue is also directly and
substantially in issue in a previously instituting suit between the same parties where such suit
is pending in the same or any other court in India.

For applicability of Res-Subjudice the following conditions must be present:

1. The matter in issue subsequent suit must be the same, which is directly and substantially in
issue in previously instituted suit.

2. The previously instituted suit must be pending in the same Court or in any other Court in
India, or in any Court beyond India established with the authority of the Federal Government.

3. The previously instituted suit must be pending in a competent Court of civil jurisdiction.
4. The parties in both suits must be the same. If these conditions are fulfilled the subsequently
further instituted suit shall be stayed by applying Res-Subjudice.

Differences Between Res Judicata and Res Subjudice

1. The doctrine of Res Judicata is contained in section (11) of C.P.C, which provides when
and how it can apply, while the doctrine of Res Subjudice is contained in section (10) of
C.P.C, which provides when and how it can apply.

2. In Res Judicata the Court shall not try at all a case, which has previously tried, while in Res
Subjudice the Court shall not proceed with a case, in-respect of which a suit is already
pending.

3. Res-judicata deals with cases, which have already been decided by a Court of competent
jurisdiction, but Res Subjudice deals with cases which are pending before the Court of
competent jurisdiction.

4. Res Judicata prohibits second trial of the same dispute between same parties, while Res
Subjudice prohibits proceedings of two parallel suits between same parties.

Conclusion

So it can be concluded that by applicability of Res- judicata the Court shall not try a suit,
which has already been tried, on the other side by applicability of Res Subjudice the Court
shall not proceed-with a suit which is already pending before the Court of competent
jurisdiction. The main spirit behind these two principles is that no person should be call in
question twice for the same cause of action.

Constructive Res Judicata and Res Judicata- Explained with Case Law

There are two kinds of Res Judicata namely-

Actual Res Judicata and Constructive Res Judicata.

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 can not be filed, and if any is filed, the same would be hit by actual
Res Judicata.

Constructive Res Judicata:

It means a matter, which might and ought to have been made ground of claim or defense in a
former suit, but a party ignores it, then that issue shall be deemed to have been a matter
directly and substantially in issue in such suit. In other words if a party had an opportunity
that he ought to have taken a plea (as a plaintiff or defendant) if he fails to do so, and the
matter is decided, the decision will operate as Res-judicata in-respect of all issues, which
were taken, and which ought and might have taken/ and second suit would not lie for such
issue.

In a recently reported decision [Ramchandra Dagdu Sonavane (Dead) by L.Rs. v. Vithu

Hira Mahar (Dead) by LRs. & Ors, AIR 2010 SC 818], the Supreme Court has explained the
doctrine of constructive res judicata as applicable in Indian law. A sub-set of the doctrine of
res judicata, emanating from Section 11 of the Code of Civil Procedure, the doctrine of
constructive res judicata sets to naught any claims being raised in a subsequent proceeding
where in an earlier proceeding such claim should / ought to have been raised and decided. A
rule of prudence, thus, the doctrine seeks to bar determination and enforcement of claims
which have not been raised at an appropriate juncture in judicial proceedings.

The Supreme Court explained the meaning and ambit of the doctrine of constructive res
judicata as under-

31) Res-judicata and Code of Civil Procedure: - It is well known that the doctrine of res-
judicata is codified in Section 11 of the Code of Civil Procedure. Section 11 generally
comes into play in relation to civil suits. But apart from the codified law, the doctrine of
res-judicata or the  principle of the res-judicata has been applied since long in various
other  kinds of proceedings and situations by courts in England, India and other countries.
The rule of constructive res-judicata is engrafted in  Explanation IV of Section 11 of the Code
of Civil Procedure and in many other situations also Principles not only of direct res-
judicata but of constructive res-judicata are also applied, if by any judgment or order
any matter in issue has been directly and explicitly decided, the decision operates as res-
judicata and bars the trial of an identical issue in a subsequent proceedings between the
same parties. The Principle of res judicata  comes into play when by judgment and order a
decision of a particular issue is implicit in it, that is, it must be deemed to have
been necessarily decided by implications even then the Principle of res judicata on that
issue is directly applicable. When any matter which  might and ought to have been made a
ground of defence or attack in a former proceeding but was not so made, then such a
matter in the eye of law, to avoid multiplicity of litigation and to bring about finality in it,
is  deemed to have been constructively in issue and, therefore, is taken as decided [See AIR
1978 SC 1283].

32) In Swamy Atmandanda vs. Sri Ramakrishna [(2005) 10 SCC 51], it was held by this
court:

“26. The object and purport of the principle of res judicata as contended in Section 11 of the
Code of Civil Procedure is to uphold the rule of conclusiveness of judgment, as to the points
decided earlier of fact, or of law, or of fact and law, in every subsequent suit between the
same parties. Once the matter, which was the subject matter of lis, stood determined by a
competent court, no party thereafter can be permitted to reopen it in a subsequent litigation.
Such a rule was brought into the statute book with a view to bring the litigation to an end so
that the other side may not be put to harassment.

27. The principle of res judicata envisages that a judgment of a court of

concurrent jurisdiction directly upon a point would create a bar as regards a plea, between the
same parties in some other matter in another court, where the said plea seeks to raise afresh
the very point that was determined in the earlier judgment.”

33) When the material issue has been tried and determined between the same parties in a
proper suit by a competent court as to the status of one of them in relation to the other, it
cannot be again tried in another suit between them as laid down in Krishna Behari Roy vs.
Bunwari Lal Roy  reported in [1875 ILR (IC-144)], which is followed by this Court in
the case of Ishwar Dutt Vs. Land Acquisition Collector & Anr. [(2005) 7 SCC 190] wherein
the doctrine of `cause of action estoppel’ and `issue estoppel’ has been discussed. It is laid
down by this Court, that if there were an issue between the parties that is decided, the same
would operate as a res judicata between the same parties in the subsequent proceedings.

34) So far as the finding drawn in the suit for injunction in O.S. No.104 of 1953, regarding
adoption would also operate as a res-judicata in view of the judgment of this Court in the case
of Sulochana Amma Vs.  Narayanan Nair [(1994) 2 SCC 14]. It is observed: “The decision in
earlier case on the issue between the same parties or persons under whom they claim title or
litigating under the same title, it operates as a res-judicata. A plea decided even in a suit
for injunction touching title between the same parties, would operate as res judicata. It is a
settled law that in a Suit for injunction when title is in issue, for the purpose of
granting injunction, the issue directly and substantially arises in that suit between the parties
when the same is put in issue in a later suit based on title between the same parties or their
privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata.”

38) Reference may be made to the decision of this court in the case of Sulochana Amma vs.
Narayanan Nair, [(1994) 2 SCC 14 Para 9] on the issue between the same parties or persons
under whom they claim title or litigating under the same title, it operates as a res-judicata. A
plea decided even in suit for injunction touching the title between the same parties, would
operate as res judicata: “It is a settled law that in a suit for injunction when title is in issue, for
the purpose of granting injunction the issue directly and substantially arises in that suit
between the parties. When the same is put in issue in a later suit based on title between
the same parties or their privies in a subsequent suit, the decree in injunction
suit equally operates as a res judicata.”

39) To the same effect, the judgment of this court in the case of Sulochana Amma vs.
Narayanan Nair, [(1994) 2 SCC 14 Para 9] in which it has been held that the issue between
the same parties or persons under whom they claim title or litigating under the same title, it
operates as a res-judicata. A plea decided even in suit for injunction touching the
title between the same parties, would operate as res judicata.
Estoppel

Estoppel is a principle of law by which a person is held bound by the representation

made by him or arising out of his conduct, it is a rule of equity. Estopple is wider than
just evidence. If, for example, a person made a statementintending that some other person
should act upon it, he will be estopped, that is, will beprevented, from denying the truth of his
statement once the other person has altered hisposition on the basis of the statement. A
person, while booking his consignment with a railway company declared its value to be one
hundred rupees. He was not permitted when the packet was lost, to claim that its value was
much more than that. A person soldcertain property on the presence of his mother, the mother
was not afterwards permittedto say that the property belonged to her and therefore, her son
had no right to sell. Byremaining silent she had made a representation that her son had the
right to sell and thepurchaser having acted on that representation, it was too late to deny the
seller’s right tosell. The foundation of the doctrine is that a person cannot approbate and
reprobate at thesame time. Where a party refused to invoke the arbitration clause in the
agreement sayingthat the matter in dispute was not arbitable. He was not allowed
subsequently to seekreference of the matter to arbitration. Refusal to refer parties to
arbitration was held to beproper.

Doctrine of estoppel is embodied in S.115 of Indian Evidence Act.

S.115. Estoppel - When one person has by his declaration, act or omission, intentionally
caused or permitted another person to believe a thing to be true and to act upon such belief,
neither he nor his representative shall be allowed, in any suit or proceeding between himself
and such person or his representative, to deny the truth of that thing.

Illustration: -
A intentionally and falsely leads B to believe that certain land belongs to A, and thereby
induces B to buy and pay for it. The land afterwards, becomes the property of A, and A seeks
to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be
allowed to prove his want to title.

Three conditions are to be satisfied to attract estoppel.

1. Representation by a person to another

2. The other shall have acted upon the said representation; and

3. Such action shall have detrimental to the interests of the person to whom the
representation has been made

The differences between res judicata and estoppel are as follows-

 Res judicata flows from the decision of a court, but estoppel flows from an act of
parties.

 Res judicata is based on the principles of public policy (that there should be an end to
litigation) but estoppel is based on principles of equity (that one who, by his conduct,
has altered the position of another party to his disadvantage, cannot turn around and
use this alteration to his advantage). Res judicata prevents multiplicity of litigations,
but estoppel prevents multiplicity of representations.

 Res judicata ousts the jurisdiction of a court to try a case whereas estoppel is only a
rule of evidence and shuts the mouth of the party.

 Res judicata prevents a party from claiming the same thing twice in successive
litigations, while estoppel prevents him from saying one thing at one time and the
opposite at another.
Cause of Action-

The expression cause of action is 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 in fact a group of essential facts, which it is necessary for the plaintiff to prove
before he can succeed in the suit. A bundle of essential facts, which is necessary for the
plaintiff to prove before he can succeed, it is the foundation of a suit, and must be
antecedent to the institution of the suit – and on the basis of it a suit must have been filed. If a
plaintiff does not disclose the cause of action of a suit then the court will reject the plaint.

Forum Non Convenience and Anti-Suit Injunction

Indian courts explain Forum non-convenience (Latin: "inconvenient forum" or "inappropriate

forum") (“FNC”) as a discretionary power of the courts to not entertain a matter on the
grounds that there exists a more appropriate court of competent jurisdiction, which would
be in a better position to decide the matter. Conversely, an anti suit injunction is granted by a
court preventing the parties before it from instituting or continuing with proceedings in
another court.

The 188th Report (December 2003) by the Law Commission of India on ‘Proposals for
Constitution of Hi Tech Fast Track Commercial Divisions in High Courts’ has pointed out a
disturbing trend in the judgments of UK and US courts of selectively applying the principle
of ‘FNC’ and staying actions filed by foreigners in their country and refusing to apply the
same norm when actions are filed in these countries against foreigners, primarily on the
generalization that cases filed in India would take a minimum of ‘twenty five years’ for
disposal.

The Indian perspective

As per the judgment of the Delhi High Court in the case of GlaxoSmithKline and Horlicks
Limited v Heinz India (MANU/DE/0011/2009) (“Horlicks”), the doctrine of FNC requires a
two-stage enquiry:

• Whether there is an alternative competent forum, which is appropriate.

• Whether it is in the interest of justice to relegate the parties to the alternative forum.

An important point to be noted is that a court must have jurisdiction before rejecting a matter
on the ground of FNC. The observations of the Delhi High Court in the case of Horlicks are
worth noting and are as follows:

1. The principle of 'FNC’ flows from a desire to avoid multiplicity of proceedings and
conflicting or confusing judgments.

2. Each case has to be decided on its own circumstances, which include economic strength of
the parties, expenses, availability of evidence etc.

3. FNC is applied rarely, when advantages and justice clearly outweigh proceedings before
a court, which in law has jurisdiction, but another court having concurrent jurisdiction
is the more 'natural' and the plaintiff has deliberately avoided the said forum.

4. There should be a distinct disadvantage to deny the right of the plaintiff to decide his court.

5. Balance of convenience is a material consideration, but not the sole criteria justifying
FNC. Notwithstanding the appropriateness of a particular forum, courts in general
give primacy to the governing law contractually chosen by the parties, particularly in
commercial transactions. For instance, in August 2010, the Delhi High Court in the
case of Piramal Healthcare v DiaSorin S.p.A (MANU/DE/2099/2010) held that
circumstances such as comparison of litigation expenses in England and in India or
the hardship of taking the witnesses to the English Court, is insufficient to render a
contractually agreed forum as a FNC as they were foreseeable at the time of entering
into the contract.
The Supreme Court in the case of Modi Entertainment v. W.S.G. Cricket (AIR 2003 SC
1177) stated that only in exceptional circumstances, a contractually agreed court (court of
choice) can be declared as a ‘FNC’ through an anti suit injunction by the court of natural
jurisdiction. This anti suit injunction can be granted by the court to prevent injustice if the
scenario is such that it permits a contracting party to be relieved of the burden of the contract.
The exceptions include events since the date of the contract which have made it impossible
for the party seeking injunction to litigate the case because the essence of the jurisdiction of
the contractually chosen court no longer exists, or the court does not exist at a later point of
time or because of force majeure (unforeseen events beyond the control of the parties).

International perspective

US and UK courts have traditionally recognized FNC, though it does not have legislative
backing. The courts generally evaluate whether a satisfactory alternate court exists, which
court has a greater connection to the case and factually analyze how the convenience of the
alternative court to one party weighs against the burden placed on the other party.

Civil law countries, in general do not recognize the doctrine of FNC primarily due to the lack
of certainty of its application and the discretionary power given to the judiciary. The case of
Owusu v Jackson ([2005] QB 801 Case C 281/02) (“Owusu”) , is noteworthy since the Court
held that the doctrine of FNC is incompatible with the mandatory system of jurisdiction
(wherein person may only be sued in the state in which he or she is domiciled) established by
the Brussels Convention.

The case of Owusu discussed above, has severely limited the power of the English courts to
apply FNC in the context where the Brussels Convention and EC Regulation would apply.
While responding to European Commission’s Report and Green Paper on the EC Regulation,
the United Kingdom has officially stated that it regrets the inflexibility inherent in the ECJ’s
decision in Owusu which it feels has to a great extent disabled the valuable procedural
mechanism of FNC which facilitates the transfer of cases which would be more appropriately
dealt with by the courts in another jurisdiction.

Conclusion
An analysis of the doctrine of FNC is significant in the context of cross border transactions.

Though FNC is primarily an equitable relief, valid concerns such as a lack of predictability
and clarity in the decisions of the courts do exist. Critics of FNC would also argue that it aids
forum shopping and protracting the litigation through interlocutory applications. In the
context of transnational cases, clear and simple rules might reduce time and expense for the
parties concerned rather than hoping for courts to exercise the right amount of judicial
discretion.

On the other hand, rules however comprehensive, cannot anticipate the vast range of
situations, which might arise, which necessitates some degree of judicial flexibility and
discretion. FNC can ensure fairness by coming to the aid of a poor defendant in a third world
country who is faced with litigation in a first world country, say by a multinational
corporation.

Lis alibi pendens is a Latin term that means an action on the same cause of action is pending
elsewhere. When two courts are hearing the same dispute they can reach inconsistent
decisions. Res judicata provides that a once a case is determined as final only appeal can rise
from the case. No party to the case can commence another case on the same dispute in
another court. When a case is pending, no other case on the same issue can be commenced in
another court. Lis alibi pendens arises from international comity and it permits a court to
refuse to exercise jurisdiction when there is parallel litigation pending in another jurisdiction.
However, when a case is filed about materially different issues, documents, and parties, lis
alibi pendens can not apply to terminate the proceedings.
Anti-Suit Injunction

In a recently reported decision the Delhi High Court has taken stock of the various decisions
of the Supreme Court and English, American, Canadian and Australian courts on the issue
to elaborate upon the doctrine of anti-suit injunction as meaning one wherein a court can
direct a party not to pursue the matter before another court.

The High Court inter alia explained the principles relating to anti-injunction suit in its
decision in HORLICKS LTD. AND ANR. v. HEINZ INDIA (PVT.) LIMITED in the
following terms;

17. The doctrine of anti suit injunction as applicable to international forums is not disputed by
the learned counsel for the parties; however, this doctrine has to be applied with care and
caution as it involves the issue of respect for corresponding international forums.

18. The aforesaid legal position is abundantly clear in view of the judgment of the Supreme
Court in Modi Entertainment Network and Anr. v. W.S.G. Cricket Pte. Ltd.; AIR 2003 SC
1177. It was observed in the said judgment that the courts in India like the courts in England
are courts of both law and equity and thus the principles governing grant of injunction an
equitable relief by the court would also govern grant of anti suit injunction, which is a species
of injunction. However, the rule of Comity of Courts require this power to be exercised
sparingly because such an injunction though directed against a person in effect causes
interference in exercise of jurisdiction by another court. The test adopted by the House of
Lords in Castanho v. Brown and Root (U.K.) Ltd and Anr; (1981) AC 557 'to avoid
injustice' was noted. A reference was also made to SNI Aerospatiale v. Lee Kui Jak and
Anr; (1987) 3 All ER 510 and it was noticed that in recent cases the test is whether the
foreign proceedings are “oppressive or vexatious”.
20. The principles governing anti suit injunction were set out in Para 23 of the Modi
Entertainment Network and Anr. v. W.S.G. Cricket Pvt. Ltd case (supra), which are as
follows:

“From the above discussion the following principles emerge:

(1) In exercising discretion to grant an anti-suit injunction the court must be satisfied of the
following aspects: -

(a) The defendant, against whom injunction is sought, is amenable to the personal
jurisdiction of the court
(b) If the injunction is declined the ends of justice will be defeated and injustice will be
perpetuated; and
(c) The principle of comity -- respect for the court in which the commencement or
continuance of action/proceeding is sought to be restrained -- must be borne in mind;

(2) In a case where more forums than one are available, the Court in exercise of its
discretion to grant anti-suit injunction will examine as to which is the appropriate forum
(Forum conveniens) having regard to the convenience of the parties and may grant anti-suit
injunction in regard to proceedings which are oppressive or vexations or in a forum non-
conveniens;

(3) Where jurisdiction of a court is invoked on the basis of jurisdiction clause in a contract,
the recitals therein in regard to exclusive or non-exclusive jurisdiction of the court of choice
of the parties are not determinative but are relevant factors and when a question arises as to
the nature of jurisdiction agreed to between the parties the court has to decide the same on a
true interpretation of the contract on the facts and in the circumstances of each case;

(4) A court of natural jurisdiction will not normally grant anti-suit injunction against a
defendant before it where parties have agreed to submit to the exclusive jurisdiction of a
court including a foreign court, a forum of their choice in regard to the commencement or
continuance of proceedings in the court of choice, save in an exceptional case for good and
sufficient reasons, with a view to prevent injustice in circumstances such as which permit a
contracting party to be relieved of the burden of the contract; or since the date of the
contract the circumstances or subsequent events have made it impossible for the party
seeking injunction to prosecute the case in the court of choice because the essence of the
jurisdiction of the court does not exist or because of a vis major or force majeure and the
like;

(5) Where parties have agreed, under a non- exclusive jurisdiction clause, to approach a
neutral foreign forum and be governed by the law applicable to it for the resolution of their
disputes arising under the contract, ordinarily no anti- suit injunction will be granted in
regard to proceedings in such a forum conveniens and favored forum as it shall be presumed
that the parties have thought over their convenience and all other relevant factors before
submitting to non-exclusive jurisdiction of the court of their choice which cannot be treated
just an alternative forum;

(6) A party to the contract containing jurisdiction clause cannot normally be prevented from
approaching the court of choice of the parties as it would amount to aiding breach of the
contract; yet when one of the parties to the jurisdiction clause approaches the court of choice
in which exclusive or non-exclusive jurisdiction is created, the proceedings in that court
cannot per se be treated as vexatious or oppressive nor can the court be said to be forum
non-conveniens; and

(7) The burden of establishing that the forum of the choice is a forum non- conveniens or the
proceedings therein are oppressive or vexatious would be on the party so contending to aver
and prove the same.”

21. We may notice that the aforesaid judgment is relies on the earlier judgment of the
Supreme Court in Oil and Natural Gas Commission v. Western Company of North
America; (1987) 1 SCC 496. The said judgment was almost the first case where exercising
jurisdiction under Section 151 of the said Code, the power of anti suit injunction was
exercised.
The High Court, relying upon the decision of the Supreme Court in Cotton Corporation of
India Limited v. United Industrial Bank Limited and Ors; (1983) 4 SCC 625 went on to
declare that the principles for grant of anti-suit injunction applied in respect of domestic
courts as well but only in a limited sense and thus even though the court had inherent power
to direct a party not to pursue remedies before another Indian court as well, it cannot do so
when the other court is one of co-ordinate or superior jurisdiction in view of the provisions of
Specific Relief Act wherein the Parliament has provided otherwise.

Foreign Judgment

Foreign Court: Court situated outside India and not established or continued by the authority
of the Central Govt.

Foreign Judgment: Adjudication of a foreign court upon a matter before it.

Section 13 Embodies principle of Res Judicata in Foreign Judgments

Common rules adopted to adjudicate upon disputes with a foreign element, judgments of
foreign courts or as a result of international conventions.

Jurisdiction on a Foreign Court:

Foreign court must have jurisdiction, or else will not ne recognized or enforced in India.

Jurisdiction- Territorial Competence of Courts

Foreign Judgments are binding except:

a. Where it has not been pronounced by a court of competent jurisdiction

b. Where it has not been given on the merits of the case

c. Where proceedings are founded on incorrect view of intl. law/ lack of recognition of
Indian law

d. Where proceedings are against natural justice

e. Where it has been obtained by fraud

 f. Where it is sustained based on a breach of Indian law.

Foreign Judgment not by a competing court: Section 13(a)

Judgment passed by a court, which has no jurisdiction, is null and void. In case of foreign
judgments, a competent court both must make it by the law of the constituting state and in an
international sense it must have directly adjudicated upon the matter.

If suit dismissed in foreign country, fresh suit in India cannot be filed. If suit decreed in
foreign country, defendant precluded from putting in issues of same matters of direct and
substantial issue.

Gurdyal Singh v. Rajah of Faridkot:

Suit filed by A when B was neither residing nor domiciled in Faridkot. Hence Faridkot had
no jurisdiction, bases on mere personal claim. Had B resided at F, the court would have full
jurisdiction.

Court has no jurisdiction to pass a decree in respect of immovable property I a foreign state.

Foreign Judgment not on merits: section 13 (b)

Merits- When judge looks at evidence and based on that decides the case therefore judgments
that take place due to lack of evidence or non-appearance of a party does not equal to
judgment on merits. Foreign judgment must be given on merits to operate as res judicata.

Foreign Judgment against Intl. Law or Indian Law: section 13(c)

Judgments based on incorrect view of intl. law or refusal to recognize Indian law is not
conclusive. The mistake must be apparent prima facie.

Foreign judgment opposed to natural Justice: section 13 (d)

Judicial process needs to be observed without irregularities in procedure- impartial persons,
fair action, without bias etc.

Any judgment based on bias or partiality etc. is null and void.

Foreign Judgment obtained by fraud: section 13 (e)

Will not operate as res judicata

A.V. Papayya Sastry v. Govt. of A.P:

Defined fraud. Said that decree obtained by playing fraud is a nullity.

Satya v. Teja Singh:

Husband obtained decree of divorce from an American court claiming he was domiciled
there. On realizing that he was not S.C. declared decree to be null.

Foreign Judgment founded on breach of Indian law: section 13 (f)

Not enforced in India. Foreign law and judgment cannot offend our public policy.

Presumption as to Foreign Judgment: Section 14

Court presumes that judgment was pronounced by a competent court on the production of any
document claiming to be a certified copy of a foreign judgment unless the contrary appears
on record.

Narsimha Rao v. Venkata Laksmi:

Mere Photostat copy of judgment not admissible needs to be certified by a representative of

America’s central Govt.
Submission to Jurisdiction of Foreign Court:

Voluntary submission of party to jurisdiction of foreign court may be express or implied.

Question of submission is a question of facts and must be decided in light of facts and
circumstances.

If a court having jurisdiction in the matter delivers a foreign judgment, it would operate
as res judicata. It is conclusive as to matter adjudicated upon between same parties subject
to exceptions enumerated in Section 13 clause (a) to (f).

Difference between irregularities and not affecting foreign Judgment:

Former: decree passed by court is null

Latter: decree passed is merely irregular or wrong but not without jurisdiction and cannot be
ignored.

Enforcement of Foreign Judgment:

1. By instituting a suit on the judgment: court cannot go into the merits of the original
claim and is conclusive. Should be filed within 3 years of date of Judgment.

2. By instituting execution proceedings: in specified cases mentioned in SECTION 44-

A, which states that if a decree of a superior foreign court has been filed, the decree
should be executed as if it had been passed by the Indian court.

An award passed by a foreign arbitrator and enforceable in a country where it was made is
enforceable in India. Taking out execution proceedings in India may enforce a conclusive
foreign judgment.

Order and Decree

Decree – decision of the court with 5 elements:

 (i) There must be an adjudication (i.e. judicial determination of the matter in dispute)
the judicial determination must be made by a court. Thus an order passed by an
officer who is not a court is not a decree;

(ii) Such adjudication must have been done in a suit (there is no definition of suit in
the Code, but in Hansraj Gupta v. Official Liquidators of The Dehra Dun-
Mussoorie Electric Tramway Co. Ltd. The word suit is defined as ‘a civil
proceeding instituted by the presentation of a plaint’. Thus, every suit is instituted
by the presentation of a plaint) – when there is no civil suit, there is no decree;

(iii) It must have determined the rights (substantive rights and not procedural rights) of
the parties (only the parties to the suit) with regard to all or any of the matters in
controversy (the subject matter of the suit with reference to which some relief is
sought – however, it covers any question relating to the character and status of a
party suing, to the jurisdiction of the court, to the maintainability of the suit and to
other preliminary matters which necessitate an adjudication – interlocutory
matters of procedure which do not decide the substantive rights of the parties are
not decrees) in the suit;

(iv) Such determination must be of a conclusive nature (an order to dismiss an appeal
summarily under Order 41 is a decree inasmuch as it decides the rights of parties
conclusively – the crucial point which requires to be decided in such a case is
whether the decision is final and conclusive in essence and substance. If it is, it is
a decree); and

(v) There must be a formal expression of such adjudication (the decree follows the
judgment and must be drawn up separately).

Test: To decide whether an order of a court is a decree the Court should take into account
pleadings of the parties and the proceedings leading up to the passing of an order.
Decree- 1) Preliminary 2) Final 3) Partly Preliminary and Partly Final Decree

Deemed decree – This creates statutory fiction where the adjudication does not fulfill the
requirements of Section 2(2), and therefore is not a decree – but it can be ‘deemed’ to be a
decree, and requires to be treated as such. Order 21 Rule 58, Rule 98 – deemed decrees.
Also the adjudication under Section 144 (Restitution) is a deemed decree.

Elements of a decree:

1. Adjudication
2. Suit
3. Rights of parties in controversy
4. Conclusive determination
5. Formal expression- all requirements must be complied with.

Deemed Decree:  Order 21, Rule 58(3)

Order will have the same force and subject to same conditions of an appeal, as if it were a
decree.

Drawing up of a decree: Rule 6-A

Should be drawn up within 15 days from the date of judgment.

Decrees in special cases: Rules 9-19

Order – The adjudication of a court, which is not a decree, is an order. An order is founded
on objective considerations and as such the judicial order must contain a discussion of the
question at issue and the reasons, which prevailed with the court that led to the passing of the
order.

An order and a decree are similar. The adjudication of a court can be one or the other, but
not both.

The common elements are:

(1) Both relate to matters in controversy
(2) Both are decisions given by a court
(3) Both are adjudications of a court of law; and
(4) Both are formal expressions of a decision.

Differences:

 A decree can only be passed in a suit that is instituted by the presentation of a plaint –
in the case of an order it can be passed even in a suit that originated from an
application or a petition.

 A decree is an adjudication, which conclusively determines the rights of the parties

regarding the matters at controversy, but an order may not conclusively determine
such rights.

 There cannot be a preliminary order.

 In the case of a suit or proceeding, a number of orders can be filed, but in most
proceedings 2 decrees (preliminary and final) or 1 decree is filed;

 Every decree is appealable unless expressly provided, but every order is not
appealable unless it is specified in the Code; and

 There may be two appeals in the case of appealable decrees, but no Second Appeal is
possible in the case of appealable orders.

Institution of Suits

Elements of a suit:

1. Opposing parties
 2. Subject- matter in dispute
3. Cause of action
4. Relief

ORDER 1:
Parties to a Suit

Plaint:

A private memorial tendered to a court in which the person sets forth his cause of action, in
writing.

Rule 1- Joinder of Plaintiffs

All persons may be joined in one suit as plaintiff if the 2 conditions are met:

1. Right to relief in each plaintiff arises out of the same act/ transaction

2. If the persons brought diff. suits, common questions of law/ fact would arise.

Rule 3- Joinder of Defendants

All persons may be joined in one suit as defendant if the 2 conditions are met:

1. Right to relief in each defendant arises out of the same act/ transaction

2. If the persons brought diff. suits, common questions.

Difference between:

Necessary Parties:
One whose presence is indispensible to the constitution of the suit, against which relief is
sought, without whom no effective order can be passed

Proper Parties:

In whose absence an effective order can be passed, but presence is necessary for final
decision.

Two tests to determine if a party is a necessary party:

1. Must be a right to relief against this party, in respect of the matter in question

2. Should not be possible to pass an effective decree in absence of this party

Rule 9-

When a person who is a proper or a necessary party has not been joined to the party to the
suit.

In case of proper parties, suit cannot be dismissed only on the grounds of mis/ non- joinder.
But in case of necessary parties, suit can be dismissed on that ground alone.

BUT in Prabhakar Rao v. State of A.P., S.C. held that interests of necessary parties who had
not been joined were identical with those who were and that they were sufficiently and well
represented and therefore the petition could not be dismissed on that ground.
Rule 10: Striking out/adding/ substituting parties:

RULE 10(1) of Order 1: Adding or Substituting Plaintiffs

To bring a case within this, 3 conditions:

1. Filed under name of wrong person as plaintiff

2. Mistake is bona fide
3. Substitution/ addition of plaintiff necessary to determine real matter of dispute
RULE 10(2) of Order 1: Striking out or Adding Parties

On 2 grounds-
1. Person OUGHT to have been joined as plaintiff/ defendant, and is not
2. Without the presence of the person, the matter of the suit cannot be decided

RULE 10(2) of Order 1: Power and duty of court

2 considerations kept in mind before the court exercises its powers on joining parties-

1. Plaintiff is DOMINUS LITIS- best judge of his interest

2. If the court is satisfied that the presence of a particular person is necessary.

If a statue makes a person a necessary party and provides that non- joinder will cause
dismissal of petition, Court cannot use powers of Order 1 Rule 10.

Rule 8: Representative Suit:

It is a suit filed by/against one or more persons on behalf of themselves and others
having the same interest in the suit.

It is an exception to the general principle. When a number of persons are similarly interested
in suit, one/ more, with the court’s permission or order can sue/ or be sued on behalf of the
others. The plaintiff in a representative suit need not take prior permission of other persons
whom he seeks to represent.

ORDER 1 RULE 8- does not compel representation. If a person, himself has no right to sue,
he cannot proceed to sue on behalf of the others. It is merely an enabling provision.

4 conditions for this rule to apply:

1. Parties must be numerous: Number of persons should be capable of being
ascertained.
 2. They must have the same interest in the suit: Common interest, common grievance.
Need not be proprietary, joint or concurrent- they need not have the same cause of
action or interest arising from same transactions.
T. N. Housing Board v. T. N. Ganapathy- it was contended that representative
capacity could not be maintained as separate demand notices were issued against each
of the allottees, giving rise to separate cause of action. S.C. held that all of them had
the same interest.
3. The court must have granted permission: If this is not fulfilled, suit does not
become representative. Court has discretion- sufficient community of interest is
essential to adopt procedure laid down in RULE 8.
4. Notice must be issue to parties that are being represented: Duty of court to ensure
that notice is provided, that all persons print it in a newspaper that I read.

A decree passed in a rep. suit is binding and acts as RES JUDICATA.

Costs may be paid out of the property belonging to the community represented in the suit and
court’s direction.

The decree is the same as is passed in a regular suit.

ORDER II: Framing a Suit

Rule 1-2-

The suit must include the whole of plaintiff’s claim, and as far as practicable all matters
should be disposed off finally

Rule 2-

Every suit must include the whole claim, and if the plaintiff omits to sue for or intentionally
gives up a part of his claim, he is not allowed to sue for that part later. Relinquishment of
claim may not be express; there could be implied conduct too. It applies ONLY to suits.
Before the bar of ORDER 2 RULE 2 is invoked, 3 conditions should be satisfied:

1. Same cause of action in the second suit

2. Plaintiff was entitled to more than one relief based on that cause of action

3. Plaintiff, without leave of court, omitted to sue for the relief of second suit: If
omission is with permission of the court, the subsequent suit is not barred.

Rule 3-

Enables joinder of several causes of actions in one suit in certain circumstances like:

1. 1 Plaintiff, 1 Defendant, and Several causes of actions: Plaintiff can unite several
causes of actions. But if delay or embarrassment is apprehended, court can separate
trials
2. Joinder of Plaintiffs and Causes of actions: 2 or more P and several causes of
actions can be united. Must be read with ORDER 1 RULE 1.
2/ more P and 2/ more cause of actions, only on 2 conditions:
a) Cause of action arises from same act/ transaction
b) Common questions of law/ fact
3. Joinder of defendants and cause of actions: 1 P and 2/more causes, P can unite only
if D are jointly interested in the causes of the action. Should be read with ORDER 1
RULE 3.
2 or more Ds can be joined on 2 conditions:
a) Relief claimed based on same act/ transaction
b) Common questions of law/ fact

4. Joinder of Ps, Ds, and causes of action: If plaintiffs are not jointly interested, suit
will be barred for misjoinder, if defendants are not jointly interested, suit will be
barred for multifariousness.
Rule 4:
Plaintiff cannot join claim, without permission, EXCEPT:
1. Claims for mesne profits or rent in respect of property/ any part claimed
2. Claims of breach of contract under which property/ any part is held
3. Claims involving same cause of action

RULE 5:
Deal with suits by/ against administrators, executors and heirs
No claims shall be joined with them unless:
1. In case of personal claims regarding the estate he represents
2. He was jointly entitled/ liable with the deceased whom he represents.

Order IV:

Institution of Suits

Section 26 Order 4 Rule 1:

 Plaint must be presented, but plaintiff, advocate or agent.
 Must be presented to the court of an appointed officer.
 Plaint is then scrutinized by the Stamp Reporter after, which suits are numbered
 Must contain necessary particulars, which will be entered in the register of civil suits.

Order V:
Sections 27-29: Summons

Summons must be sent to defendant when suit is filed, to intimate that the suit has been filed,
and intimating him to appear before the court. (Section 27 and Order 5)

Rules 1-2:
Every summons to be signed by judge and be sealed with the seal of the Court. Must also be
accompanied by plaint.

Section 27, Order 5, Rule 1:

When summons is served, defendant must appear in court 30 days from date of service of
summons and file his written statement. No summons if defendant present at time of
presenting plaint.

Rule 3: Appearance of defendant, where the court requires personal appearance of the
defendant. The court makes the order of appearance.

Exemptions from appearance: Sections 132-33, Rule 4

Rules 5-8:

Contents of summons-sufficient time to appear before court and answer claim; directions to
produce his witnesses; order to produce all documents in his possession, which he intends to
rely on in the case.

Rules 9-30:
Service of summons

Wherever possible, summons must be delivered to defendant in person. Summons may be

served to a family member of the defendant when there is no likelihood of finding him at his
place of residence. Servant is not a family member. Summons may be served on the agent in
charge of immovable property, if suit is for immovable property, and defendant cannot be
reached personally. In case of two defendants, both of them must be served. Summons may
be served to person’s business manager or agent, when person does not reside in court’s
jurisdiction, and suit is against business. Delivering party must make service of summons.
Acknowledge and delivery both must be recorded.

Rule 9:
Service by Court-Summons can be served by approved courier service, registered post, speed
post, acknowledgment due (RPAD), courier service, fax, message, email or any other
possible means of transmission. Refusal of acceptance is valid service. When defendant
outside court’s jurisdiction, summons to be served by an officer of the court within whose
jurisdiction he resides.

Rule 9-A:

Plaintiff could make Service of summons

Rules 17, 19-20: Substituted service of summons.

Rules 21-30: Service of summons in special cases1`