Nature, Scope and Objective Res sub judice -The principle of res sub-judice prevents the court from

proceeding
with the trial of any suit in which the matter in issue is directly or substantially the same with the previously
instituted suit between the same parties and the court where the issue is previously instituted is pending has the
power to grant the relief sought. This rule is applicable to the trial of the suit and not the institution. It does not
restrict the court from passing interim orders like injunction or stay. However, it applies to revisions and appeals.
The purpose behind this rule is to prevent multiplicity of cases in courts. It is also sought to prevent the plaintiff
from getting two separate decisions from different courts in his favour or two contradictory judgements. It also
ensures to protect the litigant from unnecessary harassment. The policy of law is to restrict the plaintiff to one
legislation, thus obviating the possibility of two conflicting verdicts by one and the same court in respect of the
same relief.

Conditions - Section 10 of the Civil Procedural Code, 1908 deals with the conditions required to apply the
principle of res sub judice. The conditions in the process of application of res sub-judice are:

Where the matter in issue is same- Section 10 clearly states that the matter in issue in both the suits must be
directly or substantially be the same.In other words there must be two suits one that is previously instituted and
another that is subsequently substituted. The issues of both the suits should be the same to get the benefit of this
principle, it is not sufficient if only one or two issues are common. In the circumstances where the entire issues
are not the same, the court may exercise its power under Section 151 and stay the trial in a subsequent suit or the
trial of the suit may be consolidated. The power of courts to stay the trial under Section 151 is discretionary in
nature and can be exercised only when there is an abuse of process of court and if it defeats the ends of justice.

• Where the parties in suits are same- The two suits should have the same parties or their representatives.
• Where the title of the suit is same- The title of both the suits for which the parties are litigating should also
be same.
• Where the suit must be pending- The former suit must be pending in the court while the latter suit is
instituted. The word pending is for the previously instituted suit, where the final decision has not been arrived
at.
• In a competent court- Section 10 also specifies that the former suit must be pending before a court which
is competent to carry out the trial. If the former suit is pending before an incompetent court, no legal effects
can flow from it.

Example- ‘P’ was an agent in Patna who agreed to sell goods in Odisha to ‘M’. ‘P’ the agent then filed a suit for
balance of accounts in Patna. ‘M’ sues the agent ‘P’ for accounts and his negligence in Odisha; while the case was
pending in Patna. In this case, Patna court is precluded from conducting trial and can petition Odisha Court to
direct a stay of proceedings in Patna Court.

Doctrine of restitution- The doctrine of restitution implies to brings the aggrieved party to the original
position where the benefit of the erroneous judgment of the court is received by the other party who was not
entitled to such benefit. Restitution is not a new concept and Section 144 merely gives statutory recognition to
this principle. Section 144 of CPC deals with the application for restitution.
Section 144 states that:

• When a decree or order of the Court has been:

• varied/reversed in any appeal, revision or other proceedings;
• is set aside/ modified in any suit instituted for that purpose.
The Supreme Court in the case of Lal Bhagwant Singh vs Rai Sahib Lala Sri Kishen Das held that the party
who received the benefit of the erroneous judgment is by law under an obligation to make restitution to the
other party for his loss.
Actus curiae neminem gravabit- The Latin maxim actus curiae neminem gravabit means the act of court
should not affect anyone and is founded upon the principle of equity. The Court is obliged to ensure that no
one is endured by its order and it should not pass any order to the prejudice of any person. The apex court
reiterated the maxim of actus curiae neminem gravabit in the case of Odisha Forest Development
Corporation v. M/s Anupam Traders.
Res Judicata meaning-Res means “subject matter” and judicata means “adjudged” or decided and together it
means “a matter adjudged”. In simpler words, the thing has been judged by the court, the issue before a court has
already been decided by another court and between the same parties. Hence, the court will dismiss the case as it
has been decided by another court. Res judicata applies to both civil and criminal legal systems. No suit which
has been directly or indirectly tried in a former suit can be tried again.

Res Judicata example- ‘A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the ground as
the area of the land was less than the mentioned on the lease. The Court found that the area was greater than shown
in the lease. The area was excess and the principles of res judicata will not be applied.

Nature and Scope of Res Judicata-Res judicata includes two concepts of claim preclusion and issue preclusion.
Issue preclusion is also known as collateral estoppel. Parties cannot sue each other again after the final judgment
on the basis of merits has reached in civil litigation. For example, if a plaintiff wins or loses a case against the
defendant in the case say A, he cannot probably sue the defendant again in case B based on the same facts and
events. Not even in a different court with the same facts and events. Whereas in issue preclusion it prohibits the
relitigation of issues of law that have already been determined by the judge as part of an earlier case.

The scope has been decided in the case of Gulam Abbas v. State of Uttar Pradesh. In this case the court
incorporated the rules as evidence as a plea of an issue already tried in an earlier case. Judgment of this case was
difficult as the judges should apply res judicata. It was decided that res judicata is not exhaustive and even if the
matter is not directly covered under the provisions of the section it will be considered as a case of res judicata on
general principles.

Doctrine of Res Judicata- The double jeopardy provision of the Fifth Amendment to the U.S. Constitution
protects people from being put on a second trial after the case has been judged. So the doctrine of res judicata
addresses this issue and it bars any party to retry a judgment once it has been decided.

Section 11 of the Civil Procedure Court incorporates the doctrine of res judicata also known as “ rule of
conclusiveness of judgment”. The doctrine of res judicata has been explained in the case of Satyadhyan Ghosal v.
Deorjin Debi. The judgment of the court was delivered by Das Gupta, J. An appeal was made by landlords who
attained a decree for ejectment against the tenants who were Deorajin Debi and her minor son. However, they
have not been yet able to get possession in execution soon after the decree was made. An application was made
by the tenant under Section 28 of the Calcutta Thika Tenancy Act and alleged that they were the Thika tenants.
This application was resisted by the landlords saying they were not Thika Tenants within the meaning of the Act.

The tenants moved to the High Court of Calcutta under the Civil Procedure Code. The court applied the principle
of res judicata to achieve the finality in litigation. The result came that the original court, as well as the higher
court, can proceed for any future litigation on the basis that the previous decision was correct.

The doctrine of res judicata says –

• That no person should be disputed twice for the same reason.

• It is the State that decides there should be an end to a litigation
• A judicial decision must be accepted as the correct decision.

Devilal Modi vs. Sales Tax Officer- In the leading case of Devilal Modi vs. STO, B challenged the validity of
an order of assessment under Article 226. The petition was dismissed on the basis of merits. The Supreme Court
also dismissed the appeal that was made against the order on the basis of merits. B again filed another writ
petition in the same High Court against the same order of assessment. This time the petition was dismissed by
the High Court. The Supreme Court held that the petition was barred by the principle of res judicata.
Avtar Singh v. Jagjit Singh- A peculiar problem arose in the case of Avtar Singh v. Jagjit Singh. A filed a civil
suit, a contention regarding the arbitration of the Court was taken by B. The objection was sustained and the
plaint was returned to the plaintiff for the presentation. The Revenue Court did not have any jurisdiction when A
approached the Revenue Court so he returned the petition. Once again A filed a suit in the Civil Court. B
contended that the suit was barred by the doctrine of res judicata.
Foreign Court, Foreign Judgement (Sec. 13)- The Indian Code of Civil Procedure, 1908 (CPC) lays down the
procedure for enforcement of foreign judgments and decrees in India. CPC, 1908 had defined the following as-
Section 2(5) “foreign Court” means a Court situated outside India and not established or continued by the authority
of the Central Government. - Section 2(6) “foreign judgment” means the judgment of a foreign Court.
Nature and Scope of Foreign Judgments- Section 13 embodies the principle of res judicata in foreign
judgments. It embodies the principle of Private International law that a judgment delivered by a foreign court of
competent jurisdiction can be executed and enforced in India.
Foreign Judgements- Section- 13 provides that foreign judgements may operate as res judicata except in
following six cases:-

• Where the decision is not given by the competent court.

• Where the decision has not been given on the merits of the case.
• Where the judgement is found to be incorrect with the view of international law.
• Where the judgement opposed to the doctrine of natural justice.
• Where the decision has been obtained by fraud
• Where the judgement found to be on breach of law enforced in India.

Plaint- A Plaint is a legal document that contains the content of any civil suit which shows the Plaintiff’s claim
after filing suit. The plaintiff is the first step of the Plaintiff in the form of a legal document for the commencement
of suit and it shows what a Plaintiff wants from that suit. The concept of a plaintiff is mentioned in the Civil
Procedure Code. Through the help of the plaintiff, the plaintiff narrates or describes the cause of action and related
information which is considered as essential from the viewpoint of the suit.
Order VII of the Code of Civil Procedure deals, particularly with plaint. In Order VII of CPC, there are many
different rules which deal with different constituents of plaint. Rules 1 to 8 deal with the particulars of the plaint.
Rule 9 of CPC deals with how the plaint will be admitted and after that Rule 10 to 10-B talks about the return of
the plaint and the appearance of parties. And the main Rules i.e 11 to 13 deal with the rejection of the plaint and
in which circumstances the plaint can be rejected.
When Can A Plaint Be Rejected?- A plaint can be rejected under the following scenarios

I. Where the cause of action is not disclosed

II. When the relief claimed by the plaintiff is undervalued, and he/ she is not able to correct it even after
being instructed by the court to do so.
III. When the relief claimed is proper, but the plaintiff proceeds with the plaint on a paper which has not
been stamped sufficiently and fails to do so even after the court's instruction.
IV. Where the suit stems from a statement which has been essentially barred by law

Section 26 of the Code of Civil Procedure states “Every suit shall be instituted by the presentation of a plaint or
in such other manner as may be prescribed.” This section clearly shows that plaint is very much necessary for
the establishment of a suit before the civil or commercial court.- Necessary Contents of A Plaint- A plaint is a
legal document that contains a lot of necessary contents in the absence of which, it cannot be considered as a
plaint. The contents necessary for a plaint are mentioned in Rules 1 to 8 of Order VII of CPC. These are
mentioned below:

• Plaint should contain the name of the commercial or civil court where a suit will be initiated.
• Plaint should contain details of the plaintiff such as the name, address, and description.
• Plaint should contain the name, residence, and description of the defendant.
• When a plaintiff has some defects or problems in health or any type of disability, the Plaint should contain a
statement of these effects.
• Plaint should contain the facts due to which cause of action arises and where the cause of action arises it
should also be mentioned.
• Plaint should not only mention facts due to which cause of action arises but also those facts which help in
recognizing the jurisdiction.
• Plaint should also contain about that relief which the plaintiff seeks from the court.
• When the plaintiff is ready to set off a portion of his claim, the Plaint should contain that amount which has
been so allowed.
Ex parte Decree and its remedies || Order 9 Rule 13 || CPC || Introduction:- The right to be heard in a suit is
one of the important principles of the natural justice and our Civil Procedure duly provides for such right to the
party. Despite the sufficient opportunity provided if a defendant absents from the court, when he called upon on
the day of hearing mentioned in the summons duly served on him, the court is empowered to proceed ex parte and
to pass an ex parte decree against such defendant under Order 9, Rule 6 (1) (a). Meaning of Ex parte decree:-
When the suit is called out for hearing and the plaintiff appears and the defendant does not appear and summons
is duly served, the court may proceed ex parte against him and can pass a decree called ‘ex parte’ decree. Remedies
against ex parte decree:- The defendant, against whom an ex parte has been passed, has the following remedies
namely:-
1. Application to set aside the ex parte decree (Order 9 Rule 13)
2. An appeal against such decree; section 96(2) (or to file a revision under section 115 where no appeal lies;
3. Apply for review under Order 47 Rule 1; or
4. File a suit on the ground of fraud.
Bhanu Kumar Jain V. Archana Kumar, (2005) 1SCC 787 it was held that the above-mentioned remedies are
concurrent and they can be prosecuted simultaneously or concurrently.
Application under Order 9, Rule 13:- An application under Order 9 Rule 13 of CPC dealing with setting aside
of decree ex parte against the defendant can be entertained only the following two grounds;
1) Where summons was not duly served
2) Where the defendant was prevented from sufficient cause from appearing where the fact called for hearing.
However, this rule is available only to the person who is a default of appearance as per Rule 6 of Order 9. Under
this rule, only the defendant can avail this remedy not the non-party to the suit unless if he proves that his interest
is affected by such decree. The limitation period for filing an application for setting aside ex-parte decree is thirty
days from the date of the decree. Where in any suit, an ex parte decree has then it can also be set aside if there
is sufficient reason behind the absence of a party. If the court is satisfied with the reason of absence then it may
set aside an ex parte decree. During all these procedures the court must keep in mind that nowhere any miscarriage
of justice is done while passing an ex-parte decree.

A representative suit is one that is filed by or against one or more people on behalf of themselves and others
who have a vested interest in the outcome of the suit.------Representative suit is based on public policy. It saves
time, money, labour and prevents multiplicity of suits. Order 1 Rule 8 of the Civil Procedure Code deals with
representative suits. --- As a general rule, all persons interested in a suit should be joined as parties to it so
that the matter involved therein may be finally adjudicated upon and fresh litigation over the same matter may be
avoided. Rule 8 of Order 1 of the Civil Procedure Code (CPC) is an exception to this general rule. -----In
Diwakar Shrivastava vs the State of Madhya Pradesh (1984), it was stated: “the rule provides that when there are
several persons similarly interested in a suit, one or more of them can, with the permission of the court or on the
direction from the court sue or be sued on behalf of themselves and others.”-----Order 1 Rule 8 of CPC is an
enabling provision and does not compel an individual to represent a body of person having the same interest if his
action is maintainable without joining the rest in the suit.-----Essential Elements of Representative Suit- For the
application of Order 1 Rule 8 of the Civil Procedure Code following elements must be fulfilled:
1. There Should Be Several Parties- The first condition for a representative suit is several parties. The word
“several parties” imply a group of persons and does not mean innumerable persons. In Hasanali vs Mansoorali
(1947), the Privy Council held that a representative suit on behalf of inhabitants of a village regarding village
property or on behalf of the members of the sect, caste, the community is maintainable under this rule.
2. They Must Have the Same Interest- Community’s interest is the next essential, and it is the condition
precedent for bringing a representative suit. Hence the interest must be common to all, or they must have a
common grievance they seek to redress. It is not necessary that the interest must have arisen from the same
transaction. The explanation clarifies that the person need not have the same cause of action.
3. Permission or Direction by the Court Is Necessary- The suit does not become a representative suit until the
court grants the permission or the directions have been given by the court. The proper course is that the permission
of the court must be obtained before the suit is filled.
4. Notice Must Be Given- All interested persons who would be bound by the decree shall be given notice. Notice
may be in person or public. In Kumaravelu Chettiar vs T.P. Ramaswami Ayyar (1933), the Privy Council held
that the issue of notice is peremptory, and if it is not given, the decree will bind only those parties who are on
record.
ORDER 23- The withdrawal and compromise of a civil suit is provided by Order 23 of the Code of Civil
Procedure, 1908.[1] There are two types of withdrawal provide by it. Those are:

• Absolute withdrawal: In this form of withdrawal, the leave of the Court is not needed; and
• Qualified withdrawal: In this the leave of the Court is needed.
1. Withdrawal without the leave of the court-After the institution of a suit, the Plaintiff may at any point of
time withdraw his claim or suit against any one or all the defendants without the need of taking a leave from the
court. This is provide by Rule 1 (1) of Order 23 of the Code of Civil Procedure, 1908.This right to withdraw a suit
against one or all the defendants is an Absolute right and not a Qualified Right. If the plaintiff does not want to
proceed with its suit, the Court cannot compel the Plaintiff to continue.
2. Withdrawal with leave of court- Rule 1(3) of Order 23 of the Code of Civil Procedure, 1908 allows withdrawal
of suit with the leave of the court. If the court feels that the suit is having some formal defects and it must fails or
if the court gets sufficient grounds to allow the plaintiff to institute a new fresh suit for the whole suit or any one
subject matter of the suit.
The term sufficient grounds should not be construed same as the term formal defect. If there is an issue where the
decree passed by the court cannot be executed because of no one’s fault, if two suits had been filed for the same
cause of action and due to a fault, both the suits were withdrawn, omission to file the Power of Attorney, etc are
some of the examples which falls under the category of sufficient grounds. The Court also has the power to grant
leave. The grant of leave is done when the parties ask for it or if the court finds sufficient grounds the court may
grant leave sue moto.
3. Suits by minor- If in any suit, the plaintiff is a minor, then, neither the suit, nor any part of the claim can be
withdrawn without the permission of the Court. This has been provided by the Amendment Act of 1976.
According to Sub Rule 2 of Rule 1 of Order 23 of the Code of Civil Procedure, 1908, if the plaintiff asks for a
leave from the Court where the plaintiff is a minor, then the application must be attached with an affidavit of the
next best friend of the minor. If a pleader is representing the minor in the Court, then the pleader also must submit
a certificate certifying that the need of leave is for the benefit of the minor.
4. Limitation- If the plaintiff withdraws his suit with his own free will, to file a fresh suit, then the plaintiff needs
to file the fresh suit within the limitation period. This is provided under Rule 2 of Order 23 of the Code of Civil
Procedure, 1908.
Adjustment or Compromise of Suit- Even though a suit has been instituted, the parties are free to settle in a
compromise .Rule 3 of Order 23 of the Code of Civil Procedure, 1908 states that wherever the parties to a suit
agrees and comes to a compromise, then the Court should record such an agreement and also pass a decree for the
same. However for a compromise the following conditions must be met. The conditions are as follows:

• An agreement between the parties or a compromise must be there between the parties.
• The compromise must be in written and signed by the parties.
• The agreement must be lawful.
• The agreement must be recorded by the concerned court; &
• A consent decree must be passed.
If after the passing of the consent decree by the concerned court, a dispute regarding the genuineness of the
compromise comes into question, then the court which had recorded the compromise and passed the consent
decree would have the jurisdiction to hear the matter. The parties may file an appeal against the decree.However
no fresh suit can be filed concerning the same matter. The Court should see that the compromise in which the
parties had agreed to is lawful and in accordance to the Indian Contract Act, 1872. ----Rules 6 and 7 of Order 32
of the Code of Civil Procedure, 1908 tries to safeguard the rights of minors by not allowing any best friend or
guardian of the minor to come to a compromise without taking the leave of the Court.
The pleaders or the advocate appearing behalf of the parties has an implied authority where if the advocate finds
that by coming to a compromise, their parties would be benefitted, then the advocates need not obtain permission
to come in a compromise.
When the parties comes to a compromise and the Court also passes a decree for the same, then the decree is not
treated to be a decision of the Court. The Court just provides a seal to the agreement in which both the parties
have entered. However the Court looks into whether the agreement is legal and has been abided by the Indian
Contract Act, 1872. So a compromise agreement is not treated as res judicata. However many times a compromise
agreement has also been treated as res judicata.
Suits of Civil Nature- Suits of civil nature is a very wide expression and not exhaustive in any law. However,
some light can be casted on this topic based onCPC, 1908. In CPC suits of civil nature means a suit that is presented
before a Civil Court for adjudication of a civil matter, more specifically to determine the right of property or
office. Here in both phrases, “right to property” and “right to office” deserves more clarification. “Right to
property” means and includes movable, immovable, intellectual, inheritable property and property that arise out
of any contract, agreement, litigation, or out of any other civil rights. As opposed to, “right to office” means a
right to hold a position and exercise the power of that position. It could be a job post, a religious, or any secular
post.
Section 9- Provisions relating to “suits of civil nature” have been laid down in section 9 of CPC. It reads “Court
shall have the jurisdiction to try all suits of civil nature except those of which their cognizance is expressly or
impliedly barred.” In the landmark case, Shankar Narayan Potti v K Sreedevi, (1998) 3 SCC 751 the apex court
held that ”it is obvious that in all type of civil dispute civil courts have inherited jurisdiction as per section 9 of
the CPC unless a part of Jurisdiction is carved out from such jurisdiction, expressly or by necessary implication
by any statutory provision conferred on any other tribunal or authority.”
Civil Suit examples =Following are the suits of civil nature
1.suit relating to property. 2. suit for damage of civil wrong. 3. suit for Specific Relief. 4. suit for damage for
breach of contract. 5.suit for rent.
But these are not suits of civil nature,
1. A suit for a declaration of a member of caste refrained from invitation to a caste dinner.
2. A suit for expulsion of a member from caste.
3. Suits involving purely religious ceremonies.
What do you mean by Constructive res judicata? What is the Difference between res judicata and
constructive res judicata? Explain with examples.
The doctrine of constructive Res-judicata is provided in the Explanation IV of section 11 which explains that
where the parties have had an opportunity of controverting a matter, that should be taken to be the same thing as
if the matter has been actually controverted and decided. The object of explanation is to compel the plaintiff or
the defendant to take all the grounds of attack or defense which were open to him.
The rule of Constructive res judicata is an artificial form of res judicata, and provides that if a plea could have
been taken by a party in a proceeding between him and his opponent, he should not be permitted to take that plea
against the same party in a subsequent proceeding with reference to the same subject matter.
Difference between res judicata and constructive res judicata:
The distinction between Res Judicata and Constructive Res Judicata has been carved out in the case of Workmen
of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust, wherein it was observed that Section 11
contemplates actual res judicata while Explanation IV provides for constructive res judicata. When by any
judgement or order any matter in issue has been directly or explicitly decided, the decision operates as res judicata
in a matter in subsequent suit. It is also true in case of decision of court on an issue in an earlier suit which is
implicit. However, when any matter which might or ought to have been a ground of attack or defense in the
previous suit has not been raised in such suit, then it is deemed that the matter is constructively in issue and is
therefore taken as decided. This is rule of constructive res judicata.
EX.- RESJUDICATA - A’ sued ‘B’ as he didn’t pay rent. ‘B’ pleaded for the lessening of rent on the ground as
the area of the land was less than the mentioned on the lease. The Court found that the area was greater than shown
in the lease. The area was excess and the principles of res judicata will not be applied.
EX- constructive - State of U.P. V. Nawab Hussain, AIR 1977 SC 1680 A, a sub-inspector of police was
dismissed from service by D.I.G. He challenged the order of dismissal by filing a writ petition in the high court
on the ground that he was not afforded a reasonable opportunity of being heard before the passing of the order.
The contention was, however, negatived and the petition was dismissed. He then filed a suit and raised an
additional ground that science he was appointed by the I.G.P., the D.I.G. had no power to dismiss him. The state
contended that the suit was barred by constructive res judicata. The trial court, appellate court and the high court
held that suit was not barred, but the Supreme Court held that the suit was barred by constructive res judicata as
the plea was within the knowledge of the plaintiff and could well have been taken in the earlier writ petition
Res-judicata
It results from a decision of the Court.
The rule is based upon public policy, viz that there should
be an end to litigation. It bars multiplicity of suits.
It ousts the jurisdiction of a court to try a case and
precludes an enquiry in limine.
It prohibits a man averring the same thing twice in
successive litigations.
This rule presumes conclusively the truth of the decision
in the former suit. It binds both the parties to a litigation.
Res Sub Judice
Res Sub Judice, there must be two suits, one of which
should be previously instituted.
The doctrine of Res Sub Judice is contained in section
10 of the Civil Procedure Code, which provides when
and how it can apply.
Res Sub Judice prohibits proceedings of two parallel
suits between the same parties.
Res Sub Judice, the previously instituted suit must be
pending in the same court or any competent court
having jurisdiction.
Res Sub Judice, it applies to only suit, including appeal.
Legal set off
The provision for legal set-off is given under Rule 6 of
order 8 of CPC.
In a legal set-off, the defendant demands in a plaintiff’s
suit an amount below or up to the suit claim.
Legal set-off is a right to adjust the claim of the plaintiff
against certain right or dues of the person entitled.
Example: Where a servant sues his master for recovery
of amount of salary, the master can claim set-off for loss
sustained by him due to negligence of servant since it
arises out of same relationship.
Estoppel
Estoppel flows from the act of parties.
It proceeds upon the doctrine of equity; that he who by his
conduct, has induced another to alter his position to his
disadvantage cannot turn round and take advantage of such
alteration of the other's position.
In other words, estoppel prevents multiplicity of
representations.
It is only a rule of evidence and shuts the mouth of a party.
Estoppel prevents him from saying one thing at one time and
the opposite at another. The rule of estoppel prevents a party
from denying what he has once called the truth. i.e. estoppel
binds only that party who made the previous statement or
showed the previous conduct.
Res Judicata
Res Judicata the motive is that ‘there must be an end to
litigation’. Thus, there is a bar on trial that has already been
adjudicated.
The doctrine of Res Judicata is contained in section 11 of the
Civil Procedure Code, including eight explanations that
provide when and how it can be applied.
Res Judicata prohibits the second trial of the same dispute
between the same parties.
Res Judicata, the previously instituted suit must be decided
by the competent court in which the issue has been raised
subsequently.
Res Judicata, it applies to suit and applications.
Counter claim
The provision for counter claim is given under Rules from 6A
to 6G of Order 8.
In a counter-claim, the defendant demands for a large amount.
The claim for excess amount is really a counter-claim.
A counter-claim is a claim made by the defendant in excess
of the right claimed by the plaintiff.
Example: After a bank has sued a customer for an
unpaid debt, the customer counterclaims (sues back) against
the bank for fraud in procuring the debt. The court will sort
out the different claims in one lawsuit (unless the claims are
severed).
Meaning of term Summons- The term summons has not been defined in Code of Civil Procedure 1908 but
according to Black's law dictionary: Summons means a writ stating an action is commenced against him in court.
In code of civil procedure 1908 summons can be issued to following persons:
Summons To Defendant - Order 5 of Code and Section 27 to 29 of Civil Procedure 1908 When any party (Plaintiff)
filed a suit against another party i.e. Defendant. The Defendant has to be informed that the suit is filed against him
and it is necessary to appear before court of justice to defend himself in such situation the court send an intimation
document to defendant is said to be summons to defendant.
Summons TO Witnesses Order 16 and Section 27 to 31 of Code of Civil Procedure- The summons shall issue
by the Court to any person to give evidence as witness or produce document which is in his possession before
court on particular date such intimation document is said to be summons of Witness.The summons of Witnesses
can served for two purposes i.e. Either for giving his oral evidence or for final production of documents.
Modes Of Service of Summons- There are certain modes of service of summons, The Court always endeavor to
speedy trial but it also make sure that the reasonable opportunity must be given to the parties of the suit hence the
summons to defendant can be served on any following modes:
1. Summons issued by the court personally to the Defendant or his agent.- It is ordinary way to serve
summons to the defendant, after institution of suit the court may issue summons to the defendant and such
summons shall be delivered by the officer of the court (Belief of court) to the Defendant personally or through
his agent if any or in absence of the defendant in his ordinary residence the summon shall serve on his adult
member of his family (Adult male member by Bombay High Court Amendment)
2. Service of Summons through Courier services (R.P.A.D. Service)- The High court of concerning territory
shall make rules for such services. The service of summons can be made through Register Postal
acknowledgement due or Speed post or courier services. It is addition to the direct service of summons (Order
5 Rule 9(4) Of CPC)
3. Service of summons by plaintiff (By Hand Service)- The court may allow service of summons through the
plaintiff on his application. Such service is valid service and rule of direct service by Court is applicable to
such mode of service of summons. (Order 5 Rule 9-A Of CPC)
4. Service Of Summons By Substituted Service (Order 5 Rule 20 Of CPC)
• When the court is satisfied the Defendant keeping himself away from service of summons in ordinary
way the court shall serve summons by following ways:
• Affixing Copy of summons tin conscious part of the Court House.
• Affixing Copy of summons tin conscious part of the Defendants House
• Advertisement in local newspaper where the defendant is ordinarily resides or carry on business or work
personally for gain.
5. Service Of Summons Through Electronic Message- (Order 5 Rule 9 (3) Of CPC)- It is admissible now a
days for expediency and speedy service of summons, The Service of summons on Defendant can be made by
giving a copy of summons to the defendant through any electronic media such as Emails or Fax under rules
prescribed by the High Court.
6. Service of Summons in Special Case - Order 5 Rule 21-30, Section 28 , Order 29 Rule 2 and Order 30
Rule 3 of C.P.C.

Decree
--In a decree, there must be a formal expression of the decree --The Decree follows the judgement --A decree
can be appealable except in cases barred by the law --A decree is passed in a civil suit --A decrees capable of
execution
Judgement-- In a judgement, there is no necessary requirement of a formal expression • The judgment contains
the grounds of decree • A judgment is not appealable • Judgement is passed in both civil and criminal cases
• A judgement is not capable of execution
Decree
--A decree is an official proclamation of adjudication by the judge determining the rights of the parties to the
suit. --A decree deals with the substantive legal rights of the parties, --Ascertains the rights of the parties to the
suit. --There can be only one decree in a suit. --It can be appealable except in cases barred by the law.

Order --An order is the announcement of the decision of the court, defining the relationships of the parties.
--An order deals with the procedural legal rights of the parties, --May or may not ascertain the rights of the
parties, --There can be more than one order in a suit. --Can be both appealable and non-appealable.
Set off (Order 8, Rule 6]
Definition: Where in a suit by the plaintiff for recovery of money and the defendant finds that he also has a
claim of some amount against the plaintiff what he do is he can claim a set-off in respect of the said amount.
This right of the defendant to claim set off has been recognized under Order 8, Rule 6 of the Code.

Essential Conditions:

• The suit is for the Recovery of money;

• The sum of money must be ascertained;
• Such sum must be legally recoverable;
• It must be recoverable by the defendant or by all the defendants, if not more than one;
• It must be recoverable by the defendant from the plaintiff(s);
• It must not exceed the pecuniary jurisdiction of the court in which the suit is brought;
• Both the parties must fill in the defendant's claim to set-off, the same character as they fill in the plaintiff's

Types of Set Off

Set-off is of two kinds viz., legal set-off and equitable set-off.

Legal Set Off

a. The suit must be for recovery of money.

b. The defendant must claim an ascertained sum of money. A sum of money due in respect of a disputed
transaction cannot constitute an ascertained sum.
c. That ascertained sum must be legally recoverable from the plaintiff, i.e., it is not barred by the law of
limitation.
d. The plaintiff's claim and the set-off must be claimed in the same character. The amount must be recoverable
by the defendant and if there are more than one defendant, then by all the defendants. Again, the amount
must be recoverable by the defendant from the plaintiff and if there are more than one plaintiff, then from
all the plaintiffs.
e. The set-off should be within the pecuniary jurisdiction of the Court.

Equitable set-off
Court of Equity in England allowed set-off when cross-demands arose out of the same transaction, even if the
money claimed by way of set-off was an unascertained sum of money. The Common Law Courts refused to take
notice of equitable claims for they were not ascertained sums. The Courts of Equity, however, held that it would
be inequitable to drive the defendant to a separate cross-suit and that he might be allowed to plead a set-off
though the amount might be unascertained. Such a set-off is called an equitable set-off.

Counter Claim Rule 6A to 6G of Order 8 deals with counter-claim. It is claim made by the defendant in a suit
against the plaintiff. It is a claim independent of and separable from plaintiff's claim which can be enforced by a
cross section. Counter-claim can be set up in respect of action accruing to the defendant either before or after the
filing of the suit but before the defendant has delivered his defense or before the time fixed for delivery of his
defense has expired.